The firm’s client was the prime contractor on a flood control construction project involving the widening of a creek that flowed into a slough connected to the Pacific Ocean. Shortly into construction, endangered fish species were spotted in the slough, which caused the federal government to forbid maintaining the slough—keeping it open. When the slough mouth closed, slough waters rose into the creek and the construction project, resulting in flooded work areas and impossible dewatering.
[expand title=”Read More” swaptitle=”Less”]Construction was delayed and inhibited, and the firm’s client sought compensation from the municipal owner of the project. The municipality responded by withholding potential liquidated damages for late delivery of the project. The municipality also threatened penalties under the California Subletting and Subcontracting Fair Practices Act, contending an equipment supplier used by the firm’s client had been, in fact, a subcontractor added post-bid.
The firm was retained long after construction was complete to review and formalize claims and respond to each claim of the municipality. This included preparing the Response To Proposed Final Estimate and providing a Critical Path schedule analysis to rebut the municipality’s liquidated damages assessment. Via Public Records Act requests and Freedom of Information Act requests to federal agencies with overlapping jurisdiction, the firm obtained proof of a differing site condition/cardinal change—the slough mouth closing—and presented the proof to the municipality in a lengthy time lapse evidentiary presentation documenting cost impacts and entitlement to $12mm. Thereafter, and prior to litigation, the firm obtained a settlement with payment to the firm’s client.
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Counsel: P. Randolph Finch Jr.