Theodore S. Smith

Partner

Overview

Theodore Smith has the skills and experience to help clients in the construction industry successfully mitigate and resolve complex commercial disputes. He drafts construction and design contracts for clients and counsels them during construction to avoid disputes. If claims or disputes arise, Ted represents clients through litigation, arbitration and mediation proceedings. In addition to his 35 years of legal experience, Ted brings real-world insights from his education in architecture and prior employment as a construction project manager for a general contractor and a subcontractor. Clients value his firsthand understanding of their operations and business challenges and his informed approach to resolving business and construction disputes.

Ted represents public and private owners, developers, contractors, subcontractors, equipment and material suppliers, architects, engineers and their insurers in issues involving:

  • Breach of design-and-construction contract
  • Construction deficiencies
  • Fraudulent misrepresentation
  • Personal injury
  • Construction cost overruns
  • Delay/disruption claims
  • Architectural and engineering design malpractice
  • Bid rejection disputes
  • Construction product liability claims
  • Boundary encroachment
  • Architectural copyright infringement
  • Building code compliance
  • Real estate litigation
  • Landlord-tenant disputes

He has arbitrated and litigated construction disputes throughout the United States and abroad. He counsels individuals and corporate entities on construction projects, drafting and negotiating design-and-construction contracts and specifications.

Ted also helps owners, developers and facility managers bring their operations in line with the Americans with Disabilities Act (ADA), among other statutes relating to design and construction.

Representative Experience

Construction Contracts and Architecture Agreements

  • Drafted and negotiated all types of agreements for the various parties involved in the design and construction of wide range of projects, including but not limited to contracts for architectural/engineering services, design-build, general contracting, cost-plus/GMP, subcontracting, construction management and project management. The projects include commercial office buildings, healthcare facilities, college dormitories, warehouses, power plants, sludge drying facility, landfill gas collection facility, residential developments, industrial facilities and single family residences.
  • For one major real estate developer, over the past 20 years, he has prepared more than 100 construction contracts and architectural services agreements for commercial projects ranging in value from $1 million to $60 million. He has developed sets of owner-protective contract templates specifically tailored to the particular client.
  • Prepared design and construction contracts for a major real estate developer on commercial and residential construction projects ranging from $1 million to more than $50 million.
  • Prepared construction contracts for healthcare facilities, including Somerset Medical Center, Carrier Clinic, Barnert Hospital and Radiology Center of Harding.
  • Prepared and negotiated architectural design services agreements for a nationally-renowned architect specializing in ecclesiastical architecture.
  • Prepared design-build form agreements for an engineering firm to be used for the design and installation of energy-efficient mechanical systems at projects located throughout the United States.
  • Drafted architectural services contract and construction contract documents for a $200 million hospital construction project in North Carolina.
  • Drafted contract documents for a German emissions equipment supplier bidding on more than a dozen power plant projects throughout the United States.

Litigation, Mediation and Arbitration

  • Represented a private hospital in an arbitration proceeding against its construction manager for cost overruns.
  • Defended a Norwegian equipment manufacturer and its surety in a lawsuit against a municipal authority and its engineer arising out of the design and construction of a sludge processing facility and wastewater treatment plant. The engagement included drafting of construction contract documents, counseling and oversight during a two-year remedial construction project that was part of the resolution of the litigation for which he prepared the construction contract documents.
  • Represented a major pharmaceutical company in an arbitration proceeding against its design engineer for $22 million of cost overruns resulting from defects in the computer-aided design of a pharmaceutical manufacturing facility constructed in Singapore. The matter was governed by the Singapore International Arbitration rules.
  • Defended an engineering and construction firm in a $20 million lawsuit brought by a public power authority arising out of the construction of a fossil fuel steam generator power plant and the electrostatic precipitator installed in the plant.
  • Represented a major mechanical subcontractor in three separate multi-party lawsuits in California seeking damages for extra costs and delay/disruption damages on public school projects.
  • Engaged as Project Counsel by the contractor and operator as of a landfill-gas-to-energy system and electrical generating plant in contract disputes with the owner of the county landfill on which the system was installed. The resolution of the dispute involved the sale of the project to the County for more than $50 million.
  • Represented a municipal sewer authority and its insurer in the prosecution of claims against the general contractor, design engineer, operator and suppliers for damages exceeding $2 million arising out of the structural failure and internal collapse of a trickling filter tower during the construction of the wastewater treatment plant.
  • Represented New Jersey Transit Corporation in litigation concerning the design and construction of its $120 million rail equipment maintenance facility in Kearney, New Jersey. The case involved the defense of NJ Transit against construction delay/disruption and related claims of the general contractor and a dozen subcontractors aggregating $30 million and the prosecution of malpractice and contract and claims against the construction manager, engineer, subcontractors and the surety. The engagement included the revision of contract documents following the conclusion of the litigation.
  • Represented a major New Jersey developer in litigation involving the allocation of sewer treatment capacity among eight developers in a municipality that made commitments in excess of its reserves.
  • Represented a wastewater treatment equipment supplier in proceedings before the New Jersey Division of Building and Construction concerning bid practices.
  • Prosecuted contract claims by the prime electrical contractor against the construction manager in the reconstruction of the World Trade Center subway.
  • Defended a major developer in a class action involving claims that the construction of a luxury apartment complex was not in compliance with the Americans With Disabilities Act and New Jersey Barrier-Free Subcode.
  • Represented a golf course in a lawsuit against the design engineer, general contractor and site work subcontractor for more than $2 million of damages resulting from the sudden catastrophic collapse of an earthen dam of a storm water detention basin on the golf course property.
  • Represented the owner of a $15 million banquet and catering facility in a lawsuit against the general contractor and a dozen subcontractors that filed mechanic’s liens against the property because the general contractor improperly diverted funds and failed to pay them.
  • Prosecuted a claim in excess of $1 million on behalf of a major real estate developer against the architects and structural engineer on account of structural and architectural design defects in a large office/warehouse facility.
  • Represented a major airline in a federal lawsuit against the prime electrical contractor arising out of the contractor’s default on the lighting project for a terminal at Newark International Airport.
  • Defended a national roofing system manufacturer in several lawsuits arising out of the installation of the membrane roofs at four public schools.
  • Represented the owner in a $500,000 arbitration dispute with the turnkey contractor concerning defects in the design and construction of the metal siding of an office and manufacturing facility.
  • Represented an asbestos abatement subcontractor in a Miller Act claim against the general contractor and its surety for payment for work on a U.S. Army project.
  • Represented a national data processing company in a lawsuit against a mechanical contractor for remedial costs resulting from the installation of defective piping in the under-floor condenser water system of a computer facility.
  • Represented homeowners, architects, landscape architects and builders in arbitration proceedings concerning claims of construction defects in residential construction projects ranging from $100,000 to $6 million.
  • Represented a private school concerning claims of construction deficiencies in the installation of a septic system.
  • Counseled and represented a monastery concerning the forensic investigation and development of claims arising out of the collapse failure of the roof of the chapel.
  • Prosecuted a lawsuit on behalf of a homeowner against the construction manager for construction deficiencies arising out of the $6 million construction of a pool-house and gymnasium.
  • Prosecuted a construction defect claim in excess of $300,000 on behalf of a condominium association against the builder and developer.
  • Represented mechanical prime contractor against the owner’s claims of construction defects involving the erection of a process piping plant.
  • Defended an asbestos abatement contractor against a $600,000 breach of contract lawsuit by the developer.
  • Defended arbitration claims against an engineering firm arising out of the construction of a hotel and casino resort complex in Aruba.
  • Defended an architect against claims of the contractor, adjacent landowner and surveyor in litigation arising out of survey errors not discovered until construction was underway.
  • Represented a homeowner in defense of a claim of copyright infringement by a terminated architect based on the owner’s continued construction based on the plans.
  • Defended a lawsuit by a private school against a prime contractor arising out of the construction of a $1 million expansion of the school gymnasium.
  • Filed, arbitrated and litigated construction and mechanics’ lien claims by contractors, subcontractors, suppliers and defending similar claims on behalf of owners.

Counseling

  • Counseled owners, developers and facility managers concerning the Americans With Disabilities Act.
  • Counseled an owner undertaking a $5 million renovation of a Manhattan brownstone in the preparation of the contract and specifications with the contractor and fabricator.

Previous Experience

Following law school, Ted clerked for U.S. District Court Judge Frederick B. Lacey in the District of New Jersey.

Credentials

Bar Admissions

New Jersey

Court Admissions

New Jersey Supreme Court
U.S. Court of Appeals for the Third Circuit
U.S. District Court for the District of New Jersey

Education

University of Pennsylvania Law School
J.D. (1983)

Syracuse University
B.S. in Management (1978)

Syracuse University
B. Architecture (1978)

Leadership & Community

Professional Associations

  • American Arbitration Association — Arbitrator
  • American Bar Association (ABA)
  • American Institute of Architects (AIA) — Associate Member
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