Amtrak Announces Major Projects for 2012

As passenger rail service continues to rise, Amtrak has announced an “aggressive” construction agenda for 2012. For example, Amtrak intends to spend $15 million in 2012 for planning and other pre-construction activities on its Gateway Program to provide additional capacity into Manhattan for Amtrak intercity and New Jersey Transit commuter services, including the proposed NextGen HSR system. As part of the overall plan, which is expected to cost several billion dollars, Amtrak will build two additional tunnels under the Hudson River to access expanded terminal facilities serving New York Penn Station and the future Moynihan Station on the site of the former Farley Post Office. In addition, Amtrak plans to replace and expand the century old Portal Bridge over the Hackensack River and increase from two to four the number of tracks between Newark and New York.

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Design-Build Project Delivery In New York

Design-Build project delivery has gained ground recently in New York. In a sweeping budget deal last month (December 2011), including provisions restructuring the personal income tax code, New York authorized certain state agencies to utilize design-build for road, bridge and other capital projects in excess of $1.2 million. The agencies benefitting from the deal include the Department of Transportation, Office of Parks, Recreation and Historic Presentation and the Department of Environmental Conservation. Awards are to be made on a “best value” basis to bidders from a prequalified list.

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Pennsylvania Superior Court Holds that Unions May File Mechanic’s Liens for Unpaid Contributions

Under Pennsylvania’s Mechanics’ Lien Law, only a “contractor” or “subcontractor” is permitted to file a lien claim against an owner of property, 49 P.S. § 1303(a), for the payment of debts due by the owner to the contractor or by the contractor to any of his subcontractors for labor or materials furnished during a project. 49 P.S. § 1301; see 49 P.S. § 1201(4), (5) (defining “contractor” and “subcontractor”).

On January 6, 2012, the Pennsylvania Superior Court held in Bricklayers of W. Pa. Combined Funds v. Scott’s Dev. Co., 2012 PA Super 4; 2012 Pa. Super. LEXIS 5 (2012) that a labor union is a “subcontractor” under the Mechanic’s Lien Law, and, therefore, trustees of a union benefit fund have standing to file a mechanic’s lien claim on behalf of its members.

As a result of the Superior Court’s ruling, labor unions will likely file more mechanics’ lien claims for unpaid and/or delinquent contributions. Thus, in order to ensure that no mechanic’s liens are filed on a project, owners should attempt to verify on a monthly basis that money is properly disbursed down the construction chain. Towards that end, an owner needs to obtain partial payment releases from its contractors and subcontractors on a monthly basis. In addition, an owner should consider making certain payments by joint check, if the owner suspects any problems.

Another State Joins List Of Anti-Additional Insured.

Effective this month, the State of Texas joins the list of states with both anti-indemnity and anti-additional insured statutes. In legislation signed last summer by Gov. Rick Perry but not effective until January 1, 2012, Texas — previously viewed by construction law practitioners as a permissible venue which it came to risk shifting and indemnification — joined the now long list of states prohibiting clauses in construction contracts requiring indemnification of indemnitees for their negligence.[1] Moreover, in so doing, Texas also joined the small but growing list of states prohibiting additional insured requirements – such as requirements in subcontracts requiring subcontractors to add contractors, construction managers and owners as additional insureds to the subcontractors’ policies. Other states on that list include: Colorado[2], Kansas[3], Montana[4], New Mexico[5], Oklahoma[6], Oregon[7] and Utah[8].

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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