(Photo by Jonathan Barkey)
Now the developer may be trying to stretch the deadline and thus avoid $10,000 a day penalties. How? A clause in the contract, signed 12/17/07, provides up to five years to complete the work in case of Unavoidable Delay. (Demolition began in January 2008.)
FCR's contract advantage
"They have reached out to us," David Woloch, the DOT's Deputy Commissioner of External Affairs, said at a meeting last night of the Council of Brooklyn Neighborhoods (CBN). "The essence of what's been suggested is that... if there's a delay in completing the Master Closing by the ESDC, that's an Unavoidable Delay."
"So basically what they're saying is, until ESDC takes the land, they're entitled to a time out?" asked Candace Carponter, co-chair of CBN, which was a plaintiff in a lawsuit challenging the environmental review. (Click on graphics to enlarge.)
I heard one "yes" from Woloch's group of four DOT officials, but Chris Hrones, Downtown Brooklyn Transportation Coordinator, said, "We're still working on that."
The state eminent domain case dismissed last week, Hrones said, was cited by FCR as "something that prevented them moving forward in their estimation, because it really put the project in doubt."
"Since that court case has been resolved, at least by the Appellate Division, I think we feel like, we'd like to get an explanation why they aren't proceeding," Hrones said, adding that DOT is seeking a meeting with the developer. "We definitely want some answers from them.
Carponter pointed out, however, that, when the demolition began in early 2008, eminent domain litigation had already been filed in federal court. (It was coordinated by Develop Don't Destroy Brooklyn, for which she is legal chair.)
After all, as I noted last December, FCR officials twice said in court papers:
FCRC’s construction schedule has been carefully drawn to allow the arena to be ready... by commencing work now on vacant properties that are owned by FCRC, the MTA and the City, with work on properties that are owned or occupied by other parties deferred until the pending judicial challenges to the Project have proceeded to a point where ESDC is in a position to actually use its powers of eminent domain to acquire title to and possession of those properties.
Still, the DOT may have only partial leverage. The contract's definition of Unavoidable Delay, noted above, provides "that Developer establishes to DOT that such litigation prevents Developer from proceeding with the Developer Work."
Failure to communicate
"As far as I know, not by DOT," Woloch said. "The negotiation was in the contract with Forest City.... They wanted a cushion."
Fire Department, and notices
DOT officials were asked whether the Fire Department had cleared the closing of the bridge, given that a fire station is nearby on Dean Street. Joe Noto, executive director of the Office of Construction Mitigation and Coordination, said yes, and that Fire Department brass felt confident that response would not be hampered.
"Since the bridge closed, we haven't reached out for updates," he said, "but they haven't come to us" with complaints. Some community members, however, have said individual firefighters have indicated dismay at the closing.
Also, Hrones said that DOT would require five weeks notice before any major street, such as Fifth Avenue north of Flatbush Avenue, would be closed.
Is the DOT involved in plans to amend the ESDC's Modified General Project Plan, which may be coming in the next month or two? Not yet, the group was told.