All posts by Jose A. Aquino

NY Governor Vetoes Bill To Allow Delay Damages On Public Contracts

New York Governor Andrew Cuomo ended 2018 by vetoing New York Senate Bill 6686 to amend the state finance law by adding a new section 138-b to allow contractors working on public construction projects seek delay damages against government agencies. The vetoed bill would have required all public contracts to contain a clause allowing a contractor, subcontractor or supplier to make a claim for costs due to excusable delays resulting from actions or omissions by a public owner or any of its representatives. The bipartisan bill sponsored by Senators Michael Ranzenhofer (Republican) and Luis Sepulveda (Democrat) passed the Assembly by a vote of 103 to 40 and the Senate 59 to 0. The text of the bill can be seen here.

Jose A. Aquino (@JoseAquinoEsq on Twitter) is a special counsel in the New York office of Duane Morris LLP, where he is a member of the Construction Group and of the Duane Morris Cuba Business Group. Mr. Aquino focuses his practice on commercial litigation with a concentration in construction law, mechanics’ lien law and government procurement law. This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this blog are those of the author and do not necessarily reflect the views of the author’s law firm or its individual attorneys.

Major Milestone Reached in Phase II of New York City’s Second Avenue Subway Project

The Metropolitan Transit Authority (MTA) announced that the Federal Transit Administration issued a “Finding of No Significant Impact” (FONSI) for Phase II of New York City’s Second Avenue Subway Project. The FONSI was issued after an extensive update of the original Environmental Impact Statement that was prepared in 2004. The new findings mean changes to the design of the project since 2004 were found to have no additional adverse impact on the environment in the construction area.

Congresswoman Carolyn B. Maloney said: “This finding is a major step forward toward making Phase 2 of the Second Avenue Subway a reality,” “Phase 2 will make it much easier to commute to and from East Harlem, and to access Metro North and the LaGuardia bus at 125th Street. We have already seen the extraordinary success of Phase 1, and the MTA must move forward as quickly as possible to build the full-length Second Avenue Subway up to 125th Street and then down to lower Manhattan.”

Phase I of the Second Avenue Subway opened for service January 1, 2017. Phase II is now underway with engineering and environmental reviews. Phase II will extend the subway line to 125th Street with stops at 106th, 116th, and 125th. When completed, the Second Avenue Subway Line will extend 8.5 miles from 125th Street in Harlem to Hanover Square in Lower Manhattan, including 16 new ADA-accessible subway stations.

Jose A. Aquino (@JoseAquinoEsq on Twitter) is a special counsel in the New York office of Duane Morris LLP, where he is a member of the Construction Group and of the Duane Morris Cuba Business Group. Mr. Aquino focuses his practice on commercial litigation with a concentration in construction law, mechanics’ lien law and government procurement law. This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this blog are those of the author and do not necessarily reflect the views of the author’s law firm or its individual attorneys.

New York Governor Issues Executive Order to Close Wage Gap In State Contracts

On January 9, 2017, New York Governor Andrew Cuomo signed Executive Order 162 requiring state agencies and authorities to include a provision in state contracts “requiring contractors to agree to include detailed workforce utilization reports, in addition to the equal employment opportunity information” that is currently required to be included in such reports. The new reports must contain the job title, salary and other data, including the gender, race, and ethnicity of each employee working on the state contract. If the contractor cannot identify the particular workers on the state contract, the report must then contain the job titles and salary data “of each employee in the contractor’s entire workforce.”

Executive Order 162 applies to “all State contracts, agreements, and procurements issued and executed on or after June 1, 2017.” The new reporting requirement applies to both contractors and subcontractors. Contractors and subcontractors will be required to report the information on a quarterly basis for all prime contracts with a value in excess of $25,000. Contractors with contracts of more than $100,000 must report monthly.

The New York State Department of Economic Development will set forth procedure in which the information will be reported. The New York State Department of Labor will analyze the data and make recommendations to eliminate any detected wage disparity.

Upon signing the Order Governor Cuomo stated: “At these stormy times of instability and confusion, New York must serve as a safe harbor for the progressive principles and social justice that made America.”

Executive Order 162 can be found here.

Jose A. Aquino (@JoseAquinoEsq on Twitter) is a special counsel in the New York office of Duane Morris LLP, where he is a member of the Construction Group and of the Duane Morris Cuba Business Group. Mr. Aquino focuses his practice on commercial litigation with a concentration in construction law, mechanics’ lien law and government procurement law. This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this blog are those of the author and do not necessarily reflect the views of the author’s law firm or its individual attorneys.

New York Construction Industry Welcomes New Agreement On Extension Of 421-A Tax Abatement Program

Almost a year after it expired, the Building and Construction Trades Council and the Real Estate Board of New York (REBNY) reached an agreement to restore the 421-a tax exemption program. The New York State legislature still has to approve the agreement.

The new agreement will require developers to pay construction workers an average hourly wage of $60 (including wages and benefits) for projects in Manhattan with over 300 units south of 96th Street. In Brooklyn and Queens, the average hourly rate for workers, including wages and benefits, will be $45, and the wage and benefit obligations will apply to buildings located in Community Boards 1 and 2 within one mile of the nearest waterfront bulkhead. Projects with 50 percent or more affordable apartments are excluded from the wage and benefits requirement.

The agreement will also extend the maximum time developers will pay zero in property tax with the 421-a program from 21 years to 35 years. In exchange, affordable apartments with rent limitations must remain that way an additional 5 years to 40 years.

To assure compliance with the wage and benefits obligation of the program, developers will have to hire independent monitors to audit certified payrolls. The independent monitors will certify to the New York City Department of Housing Preservation and Development within 120 days of the receipt of the final Certificate of Occupancy that the compulsory wages and benefits have been paid.

Under the new agreement, developers may opt out of the 421-a wage and benefits requirement by entering into a Project Labor Agreement (PLA). If a developer chooses to enter into a PLA, the developer can still take advantage of all other elements of the 421-a program.

“The deal reached today between these parties provides more affordability for tenants and fairer wages for workers than under the original proposal. While I would prefer even more affordability in the 421-a program, this agreement marks a major step forward for New Yorkers,” Governor Andrew Cuomo said in a statement.

Rob Speyer, chair of REBNY, said: “We are pleased to have reached an agreement that will permit the production of new rental housing in New York City, including a substantial share of affordable units, while also ensuring good wages for construction workers.”

Jose A. Aquino (@JoseAquinoEsq on Twitter) is a special counsel in the New York office of Duane Morris LLP, where he is a member of the Construction Group and of the Duane Morris Cuba Business Group. Mr. Aquino focuses his practice on commercial litigation with a concentration in construction law, mechanics’ lien law and government procurement law. This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this blog are those of the author and do not necessarily reflect the views of the author’s law firm or its individual attorneys.

 

Moody’s: U.S. Public Private Partnership Market (P3s) Set For Growth

According to a Moody’s Investors Service, the U.S. market for public-private partnerships (P3s) is equipped for growth and positioned to become one of the world’s largest. According to a new report from Moody’s important factors like availability of new state and federal resources, political support, the underlying legal structure to enforce P3 contracts and a strong capital market shape the necessary foundations for steady growth.

“State-level P3 activity has risen over the last three years, and nearly all P3 projects have been completed early or on time,” said John Medina, Moody’s VP – Senior Analyst “The need for more inter- and intra-government P3 best practice sharing remains key for the US P3 market’s long-term development compared to other markets where infrastructure development and funding may be more centrally aligned.”

The announcement of Moody’s Investors Service’s report can be seen here.

Jose A. Aquino (@JoseAquinoEsq on Twitter) is a special counsel in the New York office of Duane Morris LLP, where he is a member of the Construction Group and focuses his practice on commercial litigation with a concentration in construction law, mechanics’ lien law and government procurement law.. This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this blog are those of the author and do not necessarily reflect the views of the author’s law firm or its individual attorneys.

New York University Gets $100M Donation for Engineering School

NYU Polytechnic School of Engineering received a $100-million donation from trustee Chandrika Tandon and her husband, Ranjan. The school will be renamed the Tandon School of Engineering. The Tandons said in a statement that they “hope their gift will bring many more of us together to reinvent engineering.”

NYU President John Sexton said the funds would go to faculty, financial aid and new areas of engineering. NYU pledged to raise an additional $50 million in response to the donation. The engineering school has approximately 5,000 students.

Jose A. Aquino (@JoseAquinoEsq on Twitter) is a special counsel in the New York office of Duane Morris LLP, where he is a member of the Construction Group and focuses his practice on commercial litigation with a concentration in construction law, mechanics’ lien law and government procurement law.. This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this blog are those of the author and do not necessarily reflect the views of the author’s law firm or its individual attorneys.

Mayor De Blasio Appoints Maria Torres-Springer As Next NYC Economic Development Corporation President

New York City Mayor Bill de Blasio appointed Maria Torres-Springer as the next president of the New York City Economic Development Corporation (EDC). EDC is a not-for-profit corporation charged with using New York City’s assets to promote economic growth, create jobs and improve the quality of life in in each of the City’s five boroughs. EDC also helps create affordable housing, new parks, shopping areas, community centers and cultural centers.

Torres-Springer will be the first woman to lead EDC. She has been the Commissioner of the NYC Department of Small Business Services (SBS) since 2014. Former EDC president Kyle Kimball resigned in March to join Consolidated Edison as Vice President of Government Relations.

“Maria has a proven track-record opening doors for New Yorkers and working closely with businesses to grow our economy. We are proud to have her lead EDC. Maria will focus on growing vital sectors in our economy, and preparing New Yorkers to seize those opportunities so they can be a part of our economic success story,” said Mayor Bill de Blasio.

Before being appointed Commissioner of SBS, Torres-Springer served as the Executive Vice President and Chief of Staff at EDC. Torres-Springer has also served at the Office of the Deputy Mayor for Economic Development & Rebuilding as a Senior Policy Advisor and as the Chief Operating Officer of Friends of the Highline. Torres-Springer received a B.A. in Ethics, Politics and Economics from Yale University and a Master’s in Public Policy from Harvard University’s Kennedy School of Government.

Jose A. Aquino (@JoseAquinoEsq on Twitter) is a special counsel in the New York office of Duane Morris LLP, where he is a member of the Construction Group and focuses his practice on commercial litigation with a concentration in construction law, mechanics’ lien law and government procurement law.. This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this blog are those of the author and do not necessarily reflect the views of the author’s law firm or its individual attorneys.

President Orders Federally Funded Construction Projects To Plan For Flood Risks From Climate Change

On January 30, 2015, President Barack Obama signed an executive order requiring all federally funded construction projects to take into account flood risks linked to climate change.  Federal agencies will now be required to account for the impact of possible flooding from rising sea levels resulting from global warming by meeting one of following three requirements:

  • Use the best-available climate science.
  • Build two feet above the 100-year (1 percent annual chance) flood elevation for standard projects and three feet above for critical buildings like hospitals and evacuation centers.
  • Build to the 500-year (0.2 percent annual chance) flood elevation.

The objective of the new policy is to build federal buildings and highways at safe distances away from flood areas that are expected to deteriorate as a result of climate change. “By requiring that Federally funded buildings, roads and other infrastructure are constructed to better withstand the impacts of flooding, the President’s action will support the thousands of communities that have strengthened their local floodplain management codes and standards, and will help ensure Federal projects last as long as intended,” the White House Council on Environmental Quality said in a fact sheet.

Rachel Cleetus, the lead economist and climate policy manager with the Climate and Energy Program at the Union of Concerned Scientists, called the President’s action common sense. Below is Ms. Cleetus’ statement.

“This should be one of the least controversial executive orders the president has ever released. Why would the federal government build or repair buildings in ways that continue to put communities at risk? And why would we waste taxpayer dollars rebuilding in ways that are likely to result in repeated future flooding damages? This executive order is simply common sense. In fact, many communities across the country already recognize this and have issued building design guidelines that call for two feet of freeboard above the 100-year base flood elevation.

“This standard hasn’t been substantially changed in 37 years. Meanwhile, flood losses have increased and will continue to get worse with climate change, which is increasing flooding risks by contributing to higher seas and more severe storm surge along our coasts, and also heavier rains in some parts of the country. At the same time, more development in coastal areas is putting more people and property at risk.

“We’re also now seeing flooding on sunny days. Flooding during high tides—something that rarely occurred in the past—is now common in some places on the East and Gulf coasts of the U.S. Tidal flooding is expected grow to the point that sections of coastal cities will flood so often they’ll become unusable in the near future, according to a study the Union of Concerned Scientists released in October. Most of the 52 coastal towns we looked at could see a tripling in annual tidal floods in 15 years and a tenfold increase in 30 years.

“It’s bad policy to rebuild in ways that perpetuate our risk of flooding and to sink taxpayer dollars into risky rebuilding efforts. Federal funds should instead be spent on making coastal communities more resilient to sea level rise and coastal flooding.”

To read the Executive Order, click here.

To read the Federal Flood Risk Management Standard, click here.

To read the White House Council on Environmental Quality fact sheet, click here.

 

Updates to OSHA’s Recordkeeping Rule

Under the Occupational Safety and Health Administration’s (OSHA) Recordkeeping regulation (29 CFR 1904) covered employers are required to prepare and maintain records of serious occupational injuries and illnesses.  Revisions to the OSHA reporting requirements went into effect on January 1, 2015.  The revised rule expands the list of severe work-related injuries that all covered employers must report to OSHA.

Employers are now required to contact OSHA within 24 hours following any in-patient hospitalizations, amputations, or loss of an eye.  Additionally, employers are now required to notify OSHA of work related fatalities within eight hours following a fatality.  Previously, an employer was not required to report a single hospitalization, amputation or loss of an eye, as only work-related fatalities and in-patient hospitalizations of three or more employees were required to be reported.

Employers can provide notice to OSHA of an occurrence by either: 1) calling the nearest local OSHA office during normal business hours; 2) calling OSHA’s free and confidential number at 1-800-321-OSHA (6742); or 3) reporting the occurrence electronically using the new online reporting form that is expected to available in mid-January.

In addition to the new reporting requirements, OSHA updated the list of industries that are exempt from the requirement to routinely keep OSHA injury and illness records. The new list of exempt industries is based on the North American Industry Classification System and injury and illness data from the Bureau of Labor Statistics. Note that the new rule maintains the exemption for any employer with ten or fewer employees, regardless of their industry classification, from the requirement to routinely keep records.

The reporting requirement rule was revised to allow OSHA to focus its efforts more effectively to prevent fatalities and serious work-related injuries and illnesses. Assistant Secretary of Labor for Occupational Safety and Health, Dr. David Michaels, summed up the purpose of the new rule: “OSHA will now receive crucial reports of fatalities and severe work-related injuries and illnesses that will significantly enhance the agency’s ability to target our resources to save lives and prevent further injury and illness. This new data will enable the agency to identify the workplaces where workers are at the greatest risk and target our compliance assistance and enforcement resources accordingly.”

For more information about the new rule, visit OSHA’s website.

New York Public Authorities Law Amended To Establish That The Time To File A Notice Of Claim Against The NYC School Construction Authority Is To Commence At “Denial” Of Claim, As Opposed To “Accrual” Of Claim

On December 17, 2014, New York Governor Cuomo signed into law a bill to amend the New York Public Authorities Law, in relation to contractual claims and actions against the New York City School Construction Authority (“SCA”). The amendment adds an additional sentence to §1744(2) of the Public Authorities Law to provide that in the case of an action or special proceeding for monies due arising out of contract, accrual of such claim shall be deemed to have occurred as of the date payment for the amount claimed was denied.

Public Authorities Law §1744(2) is problematical to contractors engaged on SCA projects due to the three-month filing period from the “accrual of claims.” Courts have interpreted the three-month period to commence when the contractor’s damages are “ascertainable,” and “ascertainable” has been interpreted to mean “once the work is substantially completed or a detailed invoice of the work performed is submitted.” See C.S.A. Constr. Corp. v. NYC School Constr. Auth., 5 N.Y.3d 189, 800 N.Y.S.2d 123 (2005).

The failure to have a clear and precise point that determines when a claim accrues has led many contractors to lose a claim before it was denied by the SCA, or even before a contractor knew that the SCA disputed its claim. The purpose of the amendment is to establish an unambiguous point in time for the filing of a notice of claim against the SCA. Accordingly, the amendment establishes the accrual of a claim for notice of claim purposes as the point at which the claim is denied. The amendment will prevent the unintentional and unfair waiver of claims, and will reduce paperwork for both the SCA and its contractors.

The statute as amended brings §1744 of the NY Public Authorities Law into conformity with the similar notice of claim provisions of §3813 of the NY Education Law. Under §3813 of the Education law, the accrual date on any action or proceeding against a school district arising out of a contract shall be the date when payment was denied.

The amendment is effective only for SCA contracts signed on or after Dec 17, 2014. The text of NY Public Authorities Law § 1744(2) as amended can be seen here.