The Professional Contractor Fall/Winter 2013

THE PROFESSIONAL

FALL/WINTER 2013

A Publication of the Associated Subcontractors of Massachusetts, Inc.

REAL ESTATE MARKET TURNS A CORNER

A Constructive Attitude Katherine Craven Keeps Score At UMBA

ASM’s Biennial Dinner Gala A Night To Remember

Financial Planning How To Reduce Your Taxes In 2014

THE PROFESSIONAL

A Publication of the Associated Subcontractors of Massachusetts, Inc.

16 Real Estate Market Turns A Corner

More of the Same Expected in 2014 cover story

features

04 PRESIDENT’S VIEW Goals for a Successful

Presidential Term

19 TECHNOLOGY

Do Contractors Have a

Moral Imperative for BIM?

06 INDUSTRY PROFILE

A Constructive Attitude

20 LEGAL

Non-Competes and Non-Solicits

08 ADDITIONAL ENDORSEMENTS

Review Your Contracts Carefully!

22 FINANCIAL PLANNING How to Reduce Your Taxes in 2014

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MARKETING What Are You Losing by Not Being Branded?

ASM’S BIENNIAL DINNER GALA A Night to Remember!

24 RELIEF EFFORT

From Tragedy to Triumph 26 MEMBER PROFILE

R&R Windows Celebrates

35 Years in Business 28 YEAR-END PROJECT PHOTO GALLERY

The Professional Contractor

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PRESIDENT’S VIEW

BY RICHARD R. FISHER

Goals for a Successful Presidential Term

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y the time this issue appears in print, I will be almost two months into my two year term as president of ASM. Right now, though, as I write this, it’s been just two weeks – which is just enough time to discover how much there is to learn about being president of a dynamic association like ASM. There’s more to it than you might think, in terms of meetings, agendas, speeches and writing assignments – not to mention setting goals, and getting things done.

It’s an exciting process, however – and it gives me great pride to serve in this position, at the helm of the state’s preeminent subcontractor association.

There may be many construction associations in the state, but there is none like ASM, representing subcontractors across the state, in every trade, both union and non-union. We have come a long way under the leadership of our prior presidents, all of whom remain active today – Steve Kenney, Scott Packard, Sara Stafford and Dave Cannistraro. There are many big shoes to fill.

As president, I want to strengthen our core

services – focusing in particular on education, information and business resources – knowing that knowledge is power, and the key to business success. We will work toward that goal in many ways, including through the pages of this magazine. Already we are off to a great start, with articles in this issue that cover a gamut of business issues critical to subcontractors, from additional insured provisions to non-compete/non-solicitation agreements; from marketing and branding tips, to tax planning for 2014. The diverse range of topics is just a taste of things to come, both in TPC and in our educational programming.

My goal is not only to promote the business success of our members, but to strengthen the presence of ASM, so it is recognized even further by the legislature, the business community, and the construction industry. Given the importance of the construction industry to the state’s economy, and the critical role that subcontractors play, there’s no reason why that can’t happen.

I’m excited to get started, and invite you to join with me in making things happen at ASM over the next 22 months. Please contact me personally with your ideas. s

Richard R. Fisher is founder and president of Red Wing Construction in Beverly. He was elected president of ASM at the association’s Biennial Dinner Gala in November. See page 12 for coverage. He can be reached through ASM at (617) 742-3412 or by email at president@associatedsubs.com.

The Professional Contractor is published by The Associated Subcontractors of Massachusetts, Inc. 31 State Street | Fourth Floor | Boston, MA 02109 tel 617-742-3412 | fax 617-742-2331 mail@associatedsubs.com | www.associatedsubs.com

ASM Officers

President: President Elect: Vice President: Vice President: Treasurer: Past President:

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Richard R. Fisher, Red Wing Construction Joseph H. Bodio, Lan-Tel Communications, Inc. Steven P. Kenney, N. B. Kenney Co. Inc. James B. Miller, Salem Glass Company Russell J. Anderson, Southeastern Metal Fabricators, Inc. David G. Cannistraro, J.C. Cannistraro, LLC

Fall/Winter 2013

ASM Directors

George A. Allen, Sr. | Steven T. Amanti| Nardine J. Bellew | Matthew Brown | R. Lindsay Drisko | Roger A. Fuller | Wayne J. Griffin| Robert B. Hutchison | Dana E. Johnston, Jr. | William J. (Mac) Lynch | Susan Mailman | Erik S. Maseng| Scott H. Packard | Gregory A. Porfido | William F. Rucci, Jr. | Nancy H. Salter | Ann T. (Nancy) Shine | Frank J. Smith | Sara A. Stafford | Carolyn M. Francisco, Corwin & Corwin | Monica Lawton

The Warren Group Design / Production / Advertising www.thewarrengroup.com custompubs@thewarrengroup.com ©2014 The Warren Group, Inc. and Associated Subcontractors of Massachusetts, Inc All rights reserved. The Warren Group is a trademark of The Warren Group Inc. No part of this publication may be reproduced in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without written permission from the publisher.

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INDUSTRY PROFILE

BY CHRISTINA P. O’NEILL

A Constructive Attitude Katherine Craven Keeps Score at UMBA

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arely 40 years old, Katherine Craven has brought influence to the construction of public facilities that would be a remarkable achievement for anyone decades her senior. She created the Massachusetts School Building Authority from scratch in 2004, stayed with it for almost a decade, and then in late 2011, took the executive director’s job at the University of Massachusetts Building Authority (UMBA).

UMBA is on a five-year, $3.1 billion spending plan to build at the state’s five-campus university system. UMBA is funded exclusively by student fees for the betterment of facilities on the Katherine Craven campuses – Amherst, Boston, Dartmouth, Lowell and the UMass Medical School.

Public service is in Craven’s blood. Her paternal grandmother, Katherine Kane Craven, was the first woman to serve as councilor-at-large citywide on the Boston City Council, and in an irony of ironies, was an adamant adversary of the Boston Redevelopment Authority. Her grandfather, former state representative from Roxbury John J. Craven Sr., and her father, Judge John J. Craven Jr., were both active in public service. Her father taught her how to keep Red Sox box scores at an early age. The skill would serve her well.

Growing up in West Roxbury, Craven attended Boston Latin School, where her classmates hailed from all over the city, some of them – men and women both – going into

Creating a Better Campus

At its founding in 1960, UMBA built dormitories on the Amherst campus.

As the other campuses were added, it has built and/or expanded dorms and dining halls across the spectrum. Lowell and Dartmouth were initially commuter campuses which have moved more toward dormitory needs.

UMBA has an ongoing North Quad project in Lowell, and the repurpose and renovation of the McGauvran Dining Hall, as well as the potential for another Lowell dormitory to support the goal of 70 percent of students living on campus. UMass-Boston is also moving toward establishing its first oncampus dormitory space because of research showing that students do better and are more likely to graduate in four years if they live on campus.

The UMBA’s academic building projects came about because the campuses elected to take on the building role that formerly belonged to the state, and are also funded by student fees. Examples include expansion of the Eisenberg School of Management in Amherst and the Charlton School of Business at Dartmouth. The state Department of Capital Asset Management is renovating the Manning Business School in Lowell.

Then there’s the $444 million Albert Sherman Center and Garage complex at the University of Massachusetts Medical School. Personnel who used to be housed in five separate buildings in Worcester and in the neighboring town of

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Fall/Winter 2013

construction and becoming successful. At Harvard University, where she majored in history, she managed the men’s hockey team, an unusual post for a woman, but one that took advantage of skills her father taught her. “It’s like running a small business in some ways,” she says, adding that “it was like having 24 sons.”

She worked on 10 state budgets at the state Ways and Means Committee after Harvard, and got to know all the nooks and crannies of state budgets and the capital budget. At the MSBA, she oversaw $6 billion in state spending, transforming the state’s public school construction sector from a money-hemorrhaging $11 billion debt burden with 428 schools on the wait list into an organization that has, to date, reimbursed Massachusetts cities and towns $10 billion in grants since 2004.

Making Up for Lost Time Craven says that the challenge both in her former job and her current job is attracting quality bidders. That will be necessary to remediate long-standing structural and infrastructure problems at the Boston and Dartmouth campuses, both built in the late 1960s and early 1970s. Structural problems at UMass-Boston are now costing hundreds of millions of dollars to fix, before any campus upgrades. A large road reconstruction and utility relocation is currently underway there, including replacement of the garage, which has been closed since a sewer spill in 2006.

The Dartmouth campus faces almost $500 million in deferred maintenance. Structural problems in its poured-conShrewsbury will be able to move into one building on the Worcester campus.

A growing blend of online and in-place education is calling for facilities that accommodate both styles of learning. An example is the recentlydedicated $200 million Commonwealth Honors College at UMass-Amherst, a seven-building project that serves as a mini-campus within the larger campus, featuring a great deal of common space, residential living and academic classrooms – a departure from the old model of dorms on the perimeter and academics in the middle of the campus.

crete buildings pose questions over their long-term renewability, she indicates.

The UMBA has only 11 employees. It partners with the campuses to determine the long-term needs of future students.

UMBA owns the buildings it builds but the campuses do the maintenance. UMBA also relies on the private-sector subcontractors in the field who ensure the longevity of the buildings, and the quality of their work.

At the beginning of the building process are the subcontractors. “The subcontractors are the ones who are on the front lines, making sure that the basic infrastructure that they’re building is resilient enough to be changed later on,” Craven says.

More Money for More Projects Any money saved on UMBA jobs goes toward more jobs, and Craven watches the bond market carefully. UMBA borrowed almost $400 million in tax exempt bonds in 2013 alone. A bond deal in March of this year came in at 3.8 percent, but with rates rising, that number may be a thing of the past.

UMBA’s move to create its own insur-

ance plan is meant to benefit subcontractors. The creation of the Owner’s Controlled Insurance Program was intended to increase uniformity of administration of insurance claims and to reduce the burden on small businesses to purchase insurance. “Subs weren’t necessarily seeing the benefits of the contractor-controlled insurance program,” Craven says, because savings went to the general contractor rather than the subs. The new endeavor has so far been successful.

Projects on the horizon are the Integrated Design Building, Eisenberg School of Management, Marks Meadow and the Furcolo Hall renovation in Amherst, as well as the Old Chapel, which she describes as “a subcontractor’s dream” due to its historic nature. It’s been out of service for 20 years, but is still an iconic building on the Amherst campus. The new chancellor has committed to seek private donations for its upgrade, and UMBA will work on the building when the time comes.

Community Support Craven has four living children, the oldest 13 and the youngest, 5. A fifth child

died in infancy from West Nile Virus, which Craven herself had to battle. “I’ve had five babies since I’ve had these jobs, right? So, it’s been an interesting ride. Not much intimidates me anymore,” she says.

One of her sisters has Downs’ Syndrome, as does her son, and she volunteers for the Massachusetts Down Syndrome Congress and for MassARC, and utilizes her experience developing budgets for the Department of Mental Health to help the Massachusetts Association of Mental Health.

She also teaches CCD at her church. “I think it’s important to show your kids that you support the community where you live,” she says.

She also heads the master planning initiative for the 100-year-old Harvard Club, which needs structural upgrades.

She occasionally gets a run in “to keep the brain sane,” she says.

The members of the Associated Subcontractors of Massachusetts “are the guys and gals on the front line,” she says. At a time when UMBA is doing more construction than any time in the past 50 years, their input is much sought. “There’s a lot of business out there for people and there’s enough for everyone,” she says. s

Christina O’Neill is custom publications editor for The Warren Group, publisher of The Professional Contractor. She may be reached at coneill@thewarrengroup.com.

The Professional Contractor

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ADDITIONAL ENDORSEMENTS

BY BERNARD K. QUINLAN, CPCU, CIC, CRM

Review Your Contracts Carefully!

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wners and general contractors utilize contractual risk transfer (CRT) to push liability down to lower-tiered subcontractors and sub-subcontractors. There are three types of hold harmless/indemnity agreements: Limited or comparative fault – The subcontractor (indemnitor) is responsible for loss only to the extent that the subcontractor is at fault.

Intermediate – The subcontractor assumes responsibility for all liabilities of the indemnitees (owner and general contractor) except for the sole negligence of the indemnitees.

Broad/sole negligence – The subcontractor is responsible for all injury or damage arising out of the project work, including the sole negligence of the indemnitees.

In addition to hold harmless/indemnity agreements, subcontractors are required by contract to carry workers’ compensation and employers’ liability, auto liability, commercial general liability, umbrella liability and other types of insurance. The contract typically requires the subcontractor to name the owner and general contractor as additional insureds on the subcontractor’s liability policies. The insurance coverage afforded by the subcontractor’s insurance policy to owners and general contractors has been continuously limited since 2001 by each revision of the most widely utilized Insurance Services Office (ISO) additional insured endorsements. This narrowing of coverage may result in a gap between liability contractually assumed by the subcontractor through indemnification and hold harmless agreements and insurance coverage provided to the owner and general contractor by the subcontractor’s policies.

Anti-Indemnity Statutes Many states have statutes that limit what can be required in a contract for indemnity and/ or additional insured obligations. The Massachusetts law, G.L. c. 149, sec. 29C, provides that any subcontract provision which requires a subBernie Quinlan is a principal with Sullivan Group in Needham. He can be reached at (781) 514-1331 or bquinlan@ sullivangroup.com.

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contractor to indemnify any party for personal injury or property damages not caused by the subcontractor is void. The Massachusetts statue, however, offers limited protection to the subcontractor.

First, the law applies only to indemnification obligations. It does not apply to insurance requirements. Although a subcontract cannot require a subcontractor to indemnify another against a personal injury or property damage claim it did not cause, a subcontract may require broad additional insured coverage, which provides coverage regardless of whether the subcontractor directly caused the injury.

Second, the Massachusetts courts have broadly interpreted G.L. c. 149, sec. 29C such that a subcontractor may be required to indemnify another to a greater extent than its own negligence or fault. For example, under a broad indemnity clause a subcontractor may be responsible for 100 percent of a claim, although it is only 5 percent at fault for that claim. Careful consideration should be given to both contractual indemnity and additional insured obligations to ensure an appropriate level of risk transfer.

Evolution of Additional Insured Endorsements The narrowing of insurance coverage during the past 12 years afforded by the subcontractor’s insurance policy to additional insured owners and general contractors is illustrated by the table on page 25.

The 11/85 endorsement and 10/01 endorsements extend coverage to an additional insured for the sole negligence of the additional insured so long as the claim “arises out of the subcontractor’s work.” Subsequent editions of Additional Insured endorsements extend coverage from the subcontractor’s policies to owners and general contractors on a more restrictive basis.

This benefits the subcontractor in a number of ways: •• The subcontractor’s insurance limits are less likely to be diluted by payments on behalf of other parties.

•• Coverage afforded to the additional insured may more closely mirror the indemnity provisions of the contract and what is permitted by

ISO Form

Edition

Coverage for Additional Insured applies to:

Covered Operations

CG 20 10 11/85

Liability “arising out of” the insured subcontractor’s work for the additional insured by or for the subcontractor.

Ongoing (work in progress) and completed operations

CG 20 10 10/01 CG 20 37 10/01 CG 20 10 07/04

Liability “arising out of” insured subcontractor’s work for the additional insured.

Ongoing operations only

Liability “arising out of” insured subcontractor’s work for the additional insured

Completed operations only

CG 20 37 07/04

Liability “caused in whole or in part” by the insured subcontractor’s acts or omissions or the Completed operations only acts or omissions of those acting on behalf of the subcontractor for the additional insured.

CG 20 10 04/13

Liability “caused in whole or in part” by the insured subcontractor’s acts or omissions or the acts or omissions of those acting on behalf of the subcontractor for the additional insured. Insurance afforded to the additional insured (1) only applies to the extent permitted by law, and (2) will not be broader than required by contract.

Ongoing operations only

CG 20 37 04/13

Liability “caused in whole or in part” by the insured subcontractor’s acts or omissions or the acts or omissions of those acting on behalf of the subcontractor for the additional insured. Insurance afforded to the additional insured (1) only applies to the extent permitted by law, and (2) will not be broader than required by contract.

Completed operations only

Liability “caused in whole or in part” by the insured subcontractor’s acts or omissions Ongoing operations only or the acts or omissions of those acting on behalf of the subcontractor for the additional insured.

anti-indemnification statutes.

•• Liability losses not caused by the subcontractor will not affect future insurance premiums for the subcontractor.

Most, but not all, general contractors and owners accept coverage afforded by the 07/04 or 04/13 Additional Insured endorsements. Some large general contractors require additional insured coverage equivalent to what is provided by the CG 2010 11/85 additional insured endorsement, yet many subcontractors are unable to obtain this coverage.

Proprietary Additional Insured Endorsements Many insurance companies have developed proprietary endorsements to address the contractual demands (i.e. coverage equivalent to CG 2010 11/85) placed on contractors by owners and GCs. As previously stated, these endorsements may not be available to all subcontractors. Factors that may affect a subcontractor’s ability to obtain sole negligence additional insured coverage include premium size, years in business, loss history, nature of the work, and to whom the additional insured status is being extended.

Blanket Additional Insured Endorsements Most insurers offer manuscript blanket additional insured endorsements that automatically extend coverage as required by a written contract or agreement. However, the breadth of coverage automatically extended to additional insureds varies widely from underwriter to underwriter, and may not satisfy the contract requirements. Blanket additional insured endorsements often apply only to ongoing operations, excluding coverage for completed operations. Blanket additional insured endorsements may extend coverage only to parties with whom the subcontractor has a direct contractual agreement (i.e. general contractor) and not owners or other parties. Subcontractors should not rely on a blanket additional insured endorsement to comply with owner/ general contractor insurance requirements.

Excess and Umbrella Liability Policies Typically, umbrella policies extend additional insured status to persons or organizations that are additional insureds on underlying policies. How-

ever, the additional insured coverage afforded by the umbrella policy may not apply on a primary and noncontributory basis. The standard “other insurance” provision of many/most umbrella policies requires that all primary insurance limits available to the additional insured (including the additional insured’s own policies) must be exhausted before the umbrella coverage/limits are extended to the additional insured. Subcontractors and their insurance agents must use caution if a contract’s insurance requirements call for additional insured status on a primary and noncontributory basis.

Subcontractors should review the hold harmless/indemnity clauses and insurance requirements of their contracts very carefully. Subcontractors need to be aware of gaps between liability they assume in their contracts and insurance coverage afforded by their policies for the benefit of owners and general contractors.

The author would like to extend a special thank-you to Carolyn M. Francisco of Corwin & Corwin LLP, counsel to ASM, who consulted with the author on this article. s

The Professional Contractor

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MARKETING

BY LISA NICKERSON

What Are You Losing by Not Being Branded?

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ur world today has reached a state in which, at a moment’s notice, brand perception can make or break the success of a company. A brand is the written and visual representation of a company’s service, often expressed through a logo. This simple image provides a way for companies to connect emotionally with customers and become irreplaceable. According to Scott M. Davis, author of Brand Asset Management, consumers are exposed to 6,000 advertisements on an average day, and more than 25,000 new products each year. Brands help consumers filter through the overwhelming excess of options offered in every product and service category.

Within the architecture, engineering, and construction (A/E/C) industries, I have found that the value of creating a truly iconic brand is often lost amongst the bustle of projects and labor that occur on a day-to-day basis. While this may be the case, these companies must take a step back and realize that we need brands. “A brand” communicates the inherent quality of a product or service, and they ensure customers that they have made the right choice. A brand is an essential factor in fostering loyalty, fueling acknowledgment, and simplifying the core values of a company into one concise, accessible image.

While A/E/C industry firms often shy away from “tooting their own horn,” this dramatically impacts their business in a negative way.

We need brands in order to reflect the image and values of a company; identity formation is one of the key business tools for a brand. Jim Stengel, author of Grow: How Ideals Power Growth and Profit at the World’s Greatest Companies, notes that businesses are now only as strong as their brands. By creating a brand perception consumers will respond to, companies impact customer behavior and ultimately, overall business performance. After examining our own branding strategy, I have isolated the three must-have characteristics of every successful logo: Lisa Nickerson is the founder and principal of Nickerson PR, a full-service public relations, marketing and event planning firm working primarily with clients in the real estate development and management community. She can be reached at (617) 848-4225 or lisa.nickerson@nickersonpr.com.

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It must be recognizable. An effective brand identity should be instantly identifiable, no matter the company size. It should emanate a unique professional image that differentiates itself from all competition. The use of select language, imagery and subtle undertones enables companies to form a precise brand image that makes them unique and distinguished.

During the recent rebranding of High-Profile, a New England facilities development publication, the Nickerson PR creative team designed a logo that would better enable High-Profile to compete in today’s media, both in paper and online. The new image is in a reduced, watermark style featuring increased white space, the minimization of words and a return to simplicity. It lets the audience register the subtle features of the logo without being overwhelmed. Additionally, we played with the concept of “profile” by creating slanted edges and erecting the name; the final change in color scheme to a powerful red and black combination created a new, modern brand image that stands out among its competition.

It must be flexible. The ability to be repurposed across various forms of marketing and media is essential to developing a successful brand image. With so many different (and free) social media platforms, blogs, and paper publications available to companies, not taking advantage of these marketing techniques and resources is imprudent.

Throughout the design of The Preserve, a new gated residential community within the Bay Club of Mattapoisett, Mass., our team kept in mind the fact that compatibility across a variety of mediums was required of the new logo. This not only meant that the new image needed to be flexible from one online platform to another, but also from one material to

“THE LOGO IS THE POINT OF ENTRY FOR THE BRAND.” – MILTON GLASER

another. The Preserve logo was ultimately carved into granite stone at the entry to the neighborhood.

It must be reflective. Last but not least, a logo must be reflective of your company’s precise values, culture and business strategy. An influential brand identity is reflective of a customer’s needs and their valuation of the company. Within the A/E/C industries, these perceptions are paramount because of the trust clients must feel before moving forward with a firm; their chosen architects or general contractors will design and build their new office space, or even their new city SullGroupTPC

1/29/09

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block. Therefore, designing a brand image reflective of the customer’s expectations is key.

When strategizing for the logo of The Residences at Danforth Green, a residential community maintaining nearly 100 acres of open space, Nickerson PR emphasized the clarity and simplicity found in nature. By using an earth-toned color scheme and a simple leaf design graphic, the logo effectively expressed what the Danforth Green brand was all about: elegance, serenity and nature. Our efforts on this project in particular did not go unrecognized; Nickerson PR was awarded Silver for the Best Logo of the Year at the 2013 BRAGB PRISM Awards.

So again we ask, what are you losing by not being branded?

The answer is, very simply, everything. s

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The Professional Contractor

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ASM’S BIENNIAL DINNER GALA

A Night to Remember!

Billy Costa, guest master of ceremonies, kicks off the evening.

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Colleagues from Walsh Mechanical are all smiles during the reception.

o long in the planning, so quickly over! Yet ASM’s November 14 Biennial Dinner Gala at the spectacular State Room in downtown Boston was a night to remember for nearly 300 members and guests. The comments from those who attended say it all: • An outstanding and memorable event … festive and exciting.

• The venue was fantastic, and the food too, with a view to die for!

• Nights like this and the people in the room give me great pride to be part of ASM. The event was not only a fabulous party; it also served as the occasion to present ASM’s 2013 Legislator of the Year Award, and the surprise presentation of ASM’s first Pinnacle Award.

Above all, it marked the changing of the guard at ASM, with the election of new President Richard R.

Thank You to Our Sponsors!

Platinum Acadia Insurance Company E. Amanti and Sons Inc. J.C. Cannistraro, LLC N.B. Kenney Company, Inc. TGA Cross Insurance, Wakefield Gold BlumShapiro Charles D. Sheehy, Inc. Chandler Architectural Products, Inc. The Cheviot Corp.

Corwin & Corwin LLP ENE Systems, Inc. Greenwood Industries, Inc. Sullivan Group 12

Fall/Winter 2013

A big thumbs up from Lan-Tel Communications.

Fisher of Red Wing Construction, succeeding David G. Cannistraro of JC Cannistraro LLC. Richard acknowledged the successful new initiatives under David’s leadership and pledged to continue the forward progress of the association over the next two years, gaining greater recognition for ASM in the legislature, the business community and the construction industry.

A new team of officers was elected as well, including Joseph H. Bodio, Lan-Tel Communications, president-elect; Steven P. Kenney, N.B. Kenney Company, and James B. Miller, Salem Glass Company, vice presidents; Russell J. Anderson, Southeastern Metal Fabricators, treasurer; and Cannistraro, past president.

In addition, ASM’s new board includes 19 at-large directors, representing a cross-section of trades, and both union and open shop affiliation. See the complete list on facing page.

William F. Lynch Co. Inc. Walsh Mechanical Contractors Silver A & A Window Products, Inc. Eastern Insurance Group, LLC Construction Division Fall River Electrical Associates, Co., Inc. NECA/National Electrical Contractors Assn., Greater Boston Chapter Plumbing, Heating, Cooling Contractors Association of Greater Boston R&R Window Contractors, Inc. Salem Glass Company Stafford Construction Services, Inc. Viking Controls Inc. Victaulic Co. Wayne J. Griffin Electric, Inc. Zurich Surety

Introducing ASM’s Newly Elected Officers & Directors Serving through 2015

Officers Richard R. Fisher Red Wing Construction President Joseph H. Bodio Lan-Tel Communications President-Elect Steven P. Kenney N.B. Kenney Co. Vice President James B. Miller Salem Glass Company Vice President Russell J. Anderson Southeastern Metal Fabricators, Inc. Treasurer David G. Cannistraro JC Cannistraro LLC Past President

Directors

Nardine J. Bellew General Safety Services Corp.

Scott H. Packard Chapman Waterproofing Company

Matthew Brown Greenwood Industries

Gregory A. Porfido Mark Richey Woodworking & Design, Inc.

R. Lindsay Drisko ENE Systems, Inc.

William F. Rucci, Jr. Rucci, Bardaro & Falzone PC

Roger A. Fuller R&R Window Contractors, Inc. Wayne J. Griffin Wayne J. Griffin Electric Inc. Robert B. Hutchison The Cheviot Corporation Dana E. Johnston Jr. Fall River Electrical Associates Company, Inc. William J. (Mac) Lynch William F. Lynch Co., Inc.

George A. Allen Archer Corporation

Susan Mailman Coghlin Electrical Contractors

Steven T. Amanti E. Amanti & Sons, Inc.

Erik S. Maseng Viking Controls, Inc.

Nancy H. Salter Frontline Inc. Ann T. (Nancy) Shine J. F. Shine Mechanical, Inc. Frank J. Smith Eastern Insurance Construction Division Sara A. Stafford Stafford Construction Services, Inc. Carolyn A. Francisco Corwin & Corwin LLP Monica Lawton CEO and Clerk ASM

ASM Board Member Sue Mailman of Coghlin Electrical (center) with Tamara Berry of Coghlin and Glenn Kingsbury of Greater Boston NECA. Members of ASM’s Young Professionals Group – Greg Pierce, Cassie Johnston, Jessica Blake and Jeff Marr.

continued on page 14

The Professional Contractor

13

Biennial Dinner Gala continued from page 13

Meet ASM’s New President, Richard R. Fisher ASM’s new president is the founder and principal of Red Wing Construction, a Beverlybased provider of specialty services ranging from architectural millwork to energy conservation measures.

With a broad background in both residential and commercial carpentry and architectural millwork, Fisher is well-suited for his role as president of ASM. New President Fisher expresses appreciation to outgoing He has worked on projects of all President Dave Cannistraro. sizes both locally and in other states, and has weathered two major economic recessions during his career.

As president-elect for the past two years, Fisher has played a key role in ASM’s push for legislative reform that would cap retainage at 5 percent on private work. While staying active in that effort, as president he also plans to focus on strengthening the association’s educational and technical assistance programs, and its members’ access to business resources.

“ASM has been the preeminent organization for subcontractors in Massachusetts for decades, and my goal is for it to become an even more significant presence, and be recognized even further by the legislature, the business community, and the construction industry,” Fisher says. “Given the importance of the construction industry to the state’s economy, and the critical role that subcontractors play, there’s no reason why that can’t happen.”

ASM’s new president, Rich Fisher.

ASM Presents Legislator of the Year Award to Sen. Michael Rodrigues At the Nov. 14 Gala, Massachusetts State Sen. Michael Rodrigues of Westport received ASM’s 2013 Legislator of the Year Award in recognition of his outstanding public service, and support of policies promoting fair business practices in the construction industry.

Coming from a family in the flooring business, Rodrigues knows the construction industry well, and the challenges confronting specialty trade Sen. Michael J. Rodrigues receives the Legislator of the Year Award. contractors. He is the primary sponsor of ASM’s retainage bill, S.883, that would cap retainage at 5 percent on private work, and call for faster release.

In accepting the award, Rodrigues spoke candidly about his experiences in the industry, starting as a teenager. ASM members could easily relate to all he said, and gave him a round of applause for his steadfast support of retainage reform and other policies restoring fair balance to the industry.

Senator Rodrigues has represented his south coast district in the Massachusetts Senate since 2011, and before that served in the Massachusetts House for 15 years.

A farewell wave from outgoing President Dave Cannistraro.

Rich Fisher and Jan Breed with friends.

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ASM Presents Pinnacle Award to Attorney Jerrold A. Olanoff

Atty. Jerrold Olanoff is honored with ASM’s first Pinnacle Award.

It was a well-kept secret until the night of the event, but once announced, ASM’s new Pinnacle Award brought the crowd to its feet in a standing ovation honoring the award’s first recipient, Attorney Jerrold A. Olanoff of Corwin & Corwin LLP. The new award was presented to Olanoff in recognition of more than 45 years of exceptional dedication and service to the Associ-

ated Subcontractors of Massachusetts.

Olanoff joined Joseph and Sally Corwin at their construction law firm in the 1960s after graduating from Columbia School of Law. Almost immediately, he became involved in the association’s legislative battles on Beacon Hill to preserve competitive bidding for subcontractors, and he has plwayed a key role ever since in the important legal and legislative issues facing the association.

Over the decades, Jerry has provided counsel to the association, prepared legal briefs on ASM’s behalf, and reviewed and drafted numerous legislative proposals. He has also spoken at numerous ASM seminars on construction law, answered thousands of legal questions, and assisted the Association and ASM members in countless ways.

In accepting the Pinnacle Award, Olanoff reflected on the early years of ASM, and noted how far the Association has come since he first became involved, decades ago, with Joe and Sally Corwin. s

Sen. Michael Rodrigues speaks about his experience in the industry and on Beacon Hill.

Atty. Jerry Olanoff comments on receiving the ASM Pinnacle Award.

Teamwork We take a collaborative approach when we take on a project. Our project managers and skilled craftspeople partner with general contractors, owners, architects, and engineers to achieve outcomes that make us all proud. We know our best work is always the result of teamwork; and we appreciate the opportunity to be part of the team.

Corporate Headquarters: 116 Hopping Brook Road Holliston, MA 01746 (508) 429-8830

Sysco Boston, LLC Plympton, MA

Sandy Krupa Photography

www.waynejgriffinelectric.com

Regional Offices: Charlotte, NC Raleigh, NC Duluth, GA Pelham, AL MA Lic A8999

The Professional Contractor

15

REAL ESTATE MARKET TURNS A CORNER More of the Same Expected in 2014

By Phyllis Hanlon

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Fall/Winter 2013

The beeping of construction trucks unloading stacks of lumber competes with the banging of hammers as the framework of a new multifamily housing project takes shape. Across the commonwealth, these sounds permeate the landscape, signaling an upswing in the real estate, development and construction markets.

UMass Amherst renovation.

Rendering of University Station in Westwood (the Charles River Real Estate Investment collaborative project).

According to the Urban Land Institute, in 2012, Boston ranked ninth in the homebuilding market and eighth in the development market. Brian Kavoogian, president of Charles River Realty Investors in Newton Lower Falls, reports that construction is indeed booming in the greater Boston market. He notes that 2013 has been “a pretty extraordinary year for construction,” particularly for multifamily homes, office, and lab space in the urban core. New development is becoming a reality and on-hold projects are getting the green light. “There is a strong pipeline of multifamily construction in the city and inner suburbs, as well as selective office build-to-suit development in the suburbs,” he says.

National Development/Charles River Realty Investors, in collaboration with New England Development, Eastern Real Estate and Clarion Partners, is spearheading the University Station project, a 2.5 million square-foot, mixed-use, retail space that will also contain 350 apartment units, office space and a hotel in Westwood, adds Kavoogian.

Bullish in Boston David I. Begelfer, CEO of NAIOP Massachusetts, the Commercial Real Estate Development Association, sees a very strong development cycle throughout greater Boston and nearby suburbs. “It started about three years ago and looks like it will continue for the next couple of years,” he says.

The apartment rental market is in high demand, with low vacancy rates and rising rents. “This is the perfect formula for new construction,” Begelfer notes. “Condominium projects are also showing increasing strength. There are two or three already in the ground.”

He adds that the Seaport area is buzzing and major companies like PwC, Vertex Pharmaceuticals, Liberty Mutual and State Street Bank are part of the build-to-suit office space expansion.

Springfield College renovation.

Additionally, construction projects are evident beyond downtown Boston. “The Harvard University campus in Allston is adding several million square feet, starting with housing and commercial construction,” Begelfer points out. “There’s a mega project in Brighton with New Balance that involves a new train stop and a sports facility.”

He adds, “We are seeing a bullish market. The investment and capital markets are supportive and are fueling development. Permitting is brisk and a number of projects have been approved.

In the next three to five years, there could be as much as three million square feet of development.”

Nonprofit Work Soars The nonprofit sector is also seeing a resurgence. Just ask Thomas Peterman, principle, owner and founder of Peterman Architects, Inc. in Concord, Mass., who shifted his focus away from for-profit clients. He notes that in 2005 and 2006 some projects were canceled and never resurrected. “We stopped chasing those and focused on nonprofit work instead,” says Peterman.

“In fact, when the real estate market collapsed in the 1980s, we learned a valuable lesson about diversification.”

Peterman’s decision has resulted in a boost in business, which has picked up in the last several months. “We are seeing more projects from the nonprofit and single-family housing world.

Independent schools seem healthy, and single-family home construction is better,” he notes.

Peterman’s work can be found at several nonprofit organizations, churches, museums and independent academic institutions, including the Boston Tea Party Museum, the New England Aquarium, the Beverly School for the Deaf, Tower School in Marblehead, Ridgefield Academy in Connecticut and Faulkner Hospital, to name a few. continued on page 18 The Professional Contractor

17

Real Estate Market continued from page 17

Rendering of Bay Path College Graduate building.

Northampton Medical Offices construction.

Our Lady of the Elms new science building.

New England Carpenters Training building in Millbury.

Western Buzz Markets west of Boston are showing signs of life as well. Michael J. Graney, senior vice president of business development for the Western Massachusetts Economic Development Council, reports that space in this part of the commonwealth is fully leased. “The medical office building sector in Northampton is pretty strong. Industrial and warehouse leasing has popped to pre-2008 levels. We are also seeing activity from the real estate side,” Graney says. “There is a buzz in Springfield that we haven’t seen for a while. There’s been a churn in manufacturing, more bona fide interest from manufacturers. We haven’t seen this since before Lehman (collapsed).”

Graney points out that more companies from outside the northeast are showing interest in establishing businesses in this area. For instance, Menck USA Inc., a Germany-based manufacturer of custom energy-efficient windows, recently signed a lease for half of a 150,000-square foot space in Chicopee to establish a production plant. “My take is that Massachusetts is making the top 15 when it comes to selecting a site to establish operations,” asserts Graney.

Academic institutions are also experiencing some degree of expansion. Both public and private colleges, including UMass, Springfield College, Our Lady of the Elms, Smith and Bay Path, have construction projects in the works, Graney says.

North Central Attracting Attention Travel a bit north and the real estate picture is similar. This part of the state has experienced a “slew of construction projects,” according to John Harden, economic development specialist for the North Central Massachusetts Development Corporation.

He reports that national developer Great Wolf purchased a former Holiday Inn in Fitchburg and is in the process of convert18

Fall/Winter 2013

A recent single-family construction in Boxford

by Tom Peterman Architects.

ing the property into a resort destination. “They have invested $60 million and will create a water park and double the size of the property and the number of rooms. It will have an outdoor theme and be linked to the trail system not far from Mt. Wachusett,” he says. “The company began unloading equipment the day after signing the lease and has a target opening date of May 2014.”

Down the road in Leominster, the commercial/industrial market is hopping. Harden reports that Calare Properties purchased the Tucker Building, a 588,000 square-foot space and plans a $4 million restoration. Office furniture manufacturer AIS will become its main tenant.

Nypro’s sale to Jabil and expansion into Devens, and the construction of a large plaza in Athol that will contain Market Basket, several midlevel restaurants and possibly a hotel is a “huge win,” according to Harden. “A state grant for infrastructure will open up another 100 acres [in Athol] for light industrial and office space,” he adds. Gardner is also redeveloping a former mill site into a Price Chopper.

“There has been an increase in inquiries from companies that are starting to see North Central as a viable location for business.

Land is available; the cost of living is lower. We have a local work force. Easy access to Route 2 and other infrastructure puts us in a more competitive situation with the 495 belt,” Harden says.

“Judging by the inquiries and continuing activity, we expect this to continue in a positive way.”

No one can accurately predict what 2014 will bring, but the outlook remains optimistic. “You can’t know what unexpected events will come up, but it seems pretty positive at the moment. I have a good backlog of projects and am seeing commitments to some larger projects,” Peterman notes. s Phyllis Hanlon is an independent writer and editor in the Boston area.

TECHNOLOGY

BY LAURA HANDLER

Do Contractors Have a Moral Imperative for BIM?

A

look at the drivers of Building Information Modeling (BIM) implementation finds many trade contractors in a role of quiet leadership.

A decade ago, steel fabricators across the country saw the advantages of model-to-fabrication workflows even when other trades weren’t modeling. Mechanical contractors on the West Coast started modeling to eliminate costly coordination issues within their systems. These firms saw an almost immediate improvement in production and reduction of material waste. Their early adoption had a grassroots-like impact – inspiring upstream partners, construction managers and architects – to first consider and then embrace BIM. Today, many construction managers require their trade partners to have BIM expertise.

True Benefits of BIM-Enabled Prefabrication A recent Tocci Company blog post highlighted the statistical evidence of the advantages of BIM-enabled prefabrication, as presented at the October national BIMForum conference.

DPR Construction analyzed the productivity of wall panels prefabricated using BIM, by comparing the production using BIM for two health care projects in the San Francisco Bay Area to production using traditional methods. They found: •• 8 percent production increase in full-height framing.

•• 4 percent production increase in sheetrock installation.

•• 1 percent production increase in taping/finishing.

•• 6 percent decrease in material waste.

At the Sutter Castro Valley Medical Office Building, similarly prefabricated wall panels enabled productivity improvements in drywall (obviously) and ductwork. Southland Industries,

RIR

LWR

Industry Average

5.7

1.9

Third Party Design

3.22

.78

Integrated Design

1.5

.12

4 times

15 times

(Prefab by Southland) (Prefab by Southland)

Improvement over Industry Average Source: Southland Industries

a building systems contractor, cites similar productivity improvements that reduced installation time by 25 percent.

As exciting as many of these productivity statistics are, the BIMForum presentations unearthed perhaps another reason to implement BIM. Dave Pikey, BIM integration director for The Hill Group, put it best: “Prefabrication provides a safer working environment for our industry. So, do we have a moral imperative to prefabricate?”

Intuitively, prefabricating components within a controlled environment is safer. At this conference, we heard statistical evidence of this. Southland Industries and The Hill Group both cited improvements to their Experience Modification Rating (EMR) by using prefabrication. Hill’s EMR has seen reductions from .9 to .6, then again to .5. Southland also shared a detailed analysis comparing safety factors of the national averages, of those using BIM-enabled prefabrication only, and of those using combined integrated design and prefabrication. s

Laura Handler oversees service design and strategy at Tocci Building Companies, including VDC implementation, design management, integrated project delivery, and consulting services.

Her blog, bimx.blogspot.com, is widely regarded as an excellent source of information regarding industry transformation.

The Professional Contractor

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LEGAL

BY JUSTINE H. BROUSSEAU, ESQ., AND NINA JOAN KIMBALL, ESQ.

Non-Competes and Non-Solicits

Are They Worth the Paper They Are Written On? It all Depends on the Construction

N

on-compete and non-solicitation provisions – known as “restrictive covenants” – are often the subject of hotly contested litigation. Many people ask: are they worth the paper they are written on? The answer is: like so many things, it depends on how well constructed they are.

Restrictive covenants can be found in many types of employment agreements – from confidentiality agreements, to non-disclosure agreements (NDAs), to stock option agreements, to name a few – but wherever they appear, the important point is their purpose must be to protect a legitimate business interest of the employer. Why? Because restrictive covenants go against the principle of ordinary competition that is at the heart of the American economy. Therefore, restrictive covenants must be narrowly written and will protect only three legitimate business interests: trade secrets, other confidential business information, and good will. Restrictive covenants also must be reasonable in time and geographic scope.

A court will enforce a restrictive covenant to protect a company’s trade secret or confidential business information only if the company can establish that the information is in fact secret or confidential, and that having it would provide its competitor with a competitive business advantage. Merely asserting that information is secret does not make it so. A company must take steps to keep its crown jewels secret – for example, by limiting access to confidential information and trade secrets, password protections, and making key employees sign non-disclosure and noncompete agreements, but not requiring people with no access to confidential information sign them. Employers must keep in mind, however, that there is some information that cannot be restricted. Employees are free to use the skill and knowledge they acquire in their trade when deJustine H. Brousseau and Nina Joan Kimball are partners with the Boston law firm Kimball Brousseau LLP, with a practice focusing on employment law and civil litigation representing employees, individuals, and management. They can be reached at (617) 367-9449, or through www.kbattorneys.com.

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parting to work for a new employer.

There is currently legislation in the Massachusetts Legislature that narrows the circumstances in which an employer can impose non-compete agreements on employees (for example imposing a six-month limit and exempting lower compensated employees). Gov. Deval Patrick’s administration announced at a hearing in September that, given the continued lack of consensus among stakeholders on this issue, the administration now supports “outright elimination” of non-compete agreements along with adoption of the Uniform Trade Secrets Act, that would continue to protect trade secrets without non-compete agreements.

While we are waiting for the Legislature to act, we are stuck with the current law. Non-competes will be enforced if they are narrowly drawn to protect the legitimate interests of the employer and are reasonable in time and scope. Construct your agreements carefully.

Whatever the future of non-compete agreements, non-solicitation provisions, which focus on protecting customer goodwill and employee retention, are here to stay. A non-solicitation provision will only be enforced to protect the good will of the employer, not to appropriate good will that belongs to the departing employee or to his new employer. There are circumstances in which good will belongs to the departing employee, such as when an employee brings customers with him from a former job. The goodwill in those relationships should be able to remain with the employee when he leaves. However, customer relationships that are generated and nurtured during the term of employment belong to the employer and can be protected by a properly drafted non-solicitation provision.

The recent First Circuit Court of Appeals case Corporate Technologies, Inc. v. Harnett (Sep. 23, 2013), addresses one of the most common issues that arise when an employee leaves and customers follow: does prohibiting a departing employee from “soliciting” customers apply if the customer makes the initial contact?

The court rejected the former employee’s argument that as long as the customer initiated the

contact there should be a per se rule that any business conducted after the customer’s initial conduct would not be deemed “solicitation.” Calling the distinction between “actively soliciting and merely accepting business,” to be “metaphysical,” the court rejected the per se rule. The court found that the initial contact can be too easily manipulated by the departing employee. Here, the departing employee sent a “targeted” email blast to a short list of people, many of whom were his former customers. Following that email blast, he set up appointments and had significant business communications with four former customers. The employee’s non-solicitation provision included language prohibiting the employee not just from “soliciting” but also from “enticing away” customers. The court found that the employee’s active pursuit of these customers after the initial contact was an effort to entice them away from his former employer and was prohibited solicitation.

There are several practical lessons to be learned from this case. One, a nonsolicitation provision should include additional language prohibiting enticing away customers or interference with customer relationships, or in the case of employees, include a “no hire” provision. Two, a departing employee cannot rely on the initial customer contact to shield him from a lawsuit for violating a non-solicit provision, which will be only one of many factors considered in determining a violation. Three, departing employees should not send targeted email blasts announcing their new place of employment. Announcements should go to a much broader audience.

To summarize, do not have a onesize fits all agreement. Yes, non-competes and non-solicits are enforceable if they are properly drafted, narrowly drawn to protect legitimate business interests, reasonable in time and geographic scope, and the employer has taken steps to protect the confidentiality of the information it seeks to protect and does not overreach. Taking such steps can maximize the protection of business interests while minimizing the potential for litigation. s

V

We know there’s more on your mind than the safety of a building alone.

Construction is a business where risk is around every corner. You need an insurance company that understands that. Not just from an insurer’s perspective, but from yours. Acadia. We’re closer to your business. Visit acadiainsurance.com or contact your local independent agent for more information about the ASM Safety Group and Dividend potential.

Maine • Connecticut • New Hampshire • Massachusetts • New York • Vermont continued on next page ACAD-0137 ASMAD4.75x4.75.indd 1

12/16/10 3:53 PM The Professional Contractor 21

FINANCIAL PLANNING

BY WILLIAM F. RUCCI, JR., CPA, MST, CGMA

How to Reduce Your Taxes in 2014

H

igh-income earners – and that includes a growing number of you in the construction industry – will be licking their wounds in the spring as their 2013 federal taxes come due.

That’s because the tax provisions of the American Taxpayer Relief Act of 2012 (ATRA), which took effect at the beginning of 2013, represented the largest year-to-year tax increase in the past two decades. The highest ordinary rate on earnings was raised from 35 percent to 39.6 percent, while the highest capital gains rate jumped from 15 percent to 20 percent.

During the same period, the Patient Protection and Affordable Care Act of 2010 (ACA) kicked in with a 0.9 percent surtax on earned income above $200,000 for singles ($250,000 for married couples) and a 3.8 percent surtax on net investment income above these same threshold amounts. To add to the pain for filers with substantial incomes, personal exemptions were phased out, and as much as 80 percent of itemized deductions were eliminated.

These are the carry-over realities from 2013 that, depending on your income from wages and investments, will increase your tax burden again in 2014.

But as taxes go up, so does the value of allowed deductions, deferred income and other tax mitigating strategies. So let’s examine some of the techniques and considerations that will lead to smarter tax planning in the year ahead.

Dealing with the ACA Surtaxes Because it is the larger of the two taxes created by the ACA, the 3.8 percent surtax on net investment income (NII) represents the quickest way to see your 2014 tax obligations mount. It only makes sense then to pursue strategies for reducing your net investment income as much as possible.

What sort of income is considered net investment income? Sources include interest, dividends, annuity distributions, rents, passive royalties, income from passive activities and capital gains from the disposition of property.

Bill Rucci is a partner in the Boston area accounting and business advisory firm Rucci, Bardaro & Falzone PC, where he heads the firm’s Construction Business Services Group. He can be reached at (781) 321-6065 or billr@rbfpc.com.

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What is not considered NII, and thus not subject to the 3.8 percent surtax, are salaries/wages or bonuses, self-employment income, distributions from IRAs or qualified retirement plans, pension income, royalties, interest on tax-exempt bonds, excluded capital gains on the sale of a principal residence, veteran’s benefits and social security income.

For individuals, the 3.8 percent surtax is applied to the lesser of one’s NII or the excess of one’s modified adjusted gross income (MAGI) above the thresholds. These three drivers – NII, MAGI and the threshold amounts – determine what, if any, additional taxes you owe under the ACA. So the obvious objective is to drive down your NII & MAGI during the coming year.

Strategies for Reducing NII and MAGI Several methods for reducing net investment income are well known to most high income taxpayers and have been deployed in previous years. These include: •• Investing in municipal bonds – income from these is exempt from federal (and in some cases, state) tax, which can help to keep your investment income below the new threshold.

•• Reducing dividend paying stocks in taxable investment accounts – some investors are switching to growth stocks under the premise that the value of dividend stocks are reduced as the income from them becomes subject to the surtax.

•• Investing in tax-deferred annuities – similarly beneficial for tax purposes to muni bonds.

•• Rental real estate investing – if you purchase a rental property that projects losses in the early years, these losses can offset passive activity income from other investments.

Methods for reducing MAGI (essentially the amount you report as adjusted gross income on line 37 of form 1040) are also familiar to most high income taxpayers. These include: •• Roth conversions – by taking the one-time tax hit of converting a conventional retirement account to a Roth IRA or Roth 401k, eventually the Roth income can be withdrawn as tax-free income.

•• Installment sales – by spreading the gain out over the time you are collecting the sales proceeds, your income in any one year is reduced.

•• Like-kind exchanges – why sell a property and

recognize the gain (a taxable event) when you can exchange it for a likekind property and push the gain into the future?

•• Harvesting capital losses to offset capital gains – this can reduce both your MAGI and your NII. •• Switching to growth stocks – again, to reduce dividend income.

all now more “valuable” because they can help shield the taxpayer from the ACA’s surtaxes.

Changing Passive Income into Active Income Because income from a passive activity is considered NII, it is subject to the ACA’s 3.8 percent tax. According to the IRS, passive activity is any activity

“IT’S WELL WORTH HAVING A CONVERSATION WITH YOUR TAX ADVISOR – AND SOON – TO DETERMINE THE APPROACH THAT IS RIGHT FOR YOUR PARTICULAR SITUATION.” None of the above methods are new.

All have been used by taxpayers in previous years to drive down both regular and investment income. But they are

of a trade or business in which the taxpayer does not “materially participate.”

IRS Code 469 contains seven discrete tests for determining whether a taxpay-

er is participating on a “regular, continuous and substantial basis.”

Several of my construction company clients are invested in multiple businesses; it’s difficult for them to be actively involved in all of them. So the income they derive from those businesses is, by definition, passive income and therefore subject to the 3.8 percent surtax.

But does it now make sense to make the case that they are actively involved in a trade or business in order to turn that passive income into active income? The tax motive for doing so has certainly become stronger.

Up until this point, many taxpayers have welcomed passive income as a way to offset passive activity losses being generated by other investments.

For some of them, this strategy may still be the way to go.

But with the new ATRA tax rates and ACA provisions, the tax landscape has shifted. It’s well worth having a conversation with your tax advisor – and soon – to determine the approach that is right for your particular situation. s

Protection starts here

and here.

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Serving the Bonding and Insurance needs of the N.E. construction industry for over 40 years.

Ad a m De Sa n c t i s Gre g o r y Ju w a Ja m e s A xo n Mi c h a e l Ca rn e y Wi l d e r Pa rk s Mi c h a e l Gi l b e r t Br y a n Ju w a Da v i d B o u t i e t t e Pa u l Pa t a l a n o Dick Caruso Jonathan Duggan

DeSanctis Insurance Agency, Inc.

100 Unicorn Park Drive, Woburn, MA 01801 (781) 935-8480 www.desanctisins.com

The Professional Contractor

23

RELIEF EFFORT

BY ALLISON DEANGELIS

From Tragedy to Triumph

Mass. Construction Community Comes to Aid of Grieving Parents

R

utland resident Len Gengel and his wife Cherylann drive through Ohio after finishing a speaking engagement about their work building an orphanage in Haiti. Cherylann drives while Len works on his laptop.

The two now travel frequently to Grand Goâve, Haiti, where the orphanage is located – Len just com-

Len and Cherylann with some of the children.

The earthquake-safe orphanage under construction in Grand Goâve, Haiti.

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pleted his 48th trip in two-and-a-half years. He estimates he has spent more time recently in the Caribbean country than in the U.S. “I never would have thought four years ago that we would be doing this,” said Len. The idea of opening an orphanage in Haiti was not Len’s, but belonged to his daughter Britney, who died in the 2010 Haitian earthquake.

Since the earthquake, the Gengels have worked tirelessly on the Be Like Brit orphanage, an earthquake-safe home for orphaned children and memorial to Britney, all with the help of fundraising and donations from the Massachusetts construction community.

Len, the former president of the Home Builders Association of Massachusetts and the Home Builders and Remodelers Association of Central Massachusetts, took charge of the construction. Cherylann organized the “Be Like Brit” team and decided how the orphanage should be run.

“One of the beautiful parts of this story is that Len and his wife are a team. They couldn’t have done this without each other,” said friend and Senior Vice President of Salem Five Bank, Mark Leff.

The result of their labors is a 19,000-square foot, B-shaped complex, outfitted with its own medical clinic, room for 33 boys and 33 girls, and six missionary rooms to represent the six people killed in the group with whom Britney had traveled.

A sophomore at Lynn University in Florida, Britney Gengel was on a three-week university program in Haiti when the earthquake struck. Hours before the disaster, Britney sent her mother a text message expressing the effect the trip was having on her: “They love us so much and everyone is so happy.

They love what they have and they work so hard to get nowhere, yet they are all so appreciative. I want to move here and start an orphanage myself.”

Britney, three other Lynn University students and two professors were killed when their hotel collapsed.

It took rescue crews 33 days to recover her body from the rubble.

“While we were preparing Britney’s funeral, our priest, the Rev. John Madden, looked at us and said, ‘We cannot let her die in vain,’ and I responded, almost without thinking, ‘We’re not. We’re going to honor her last wish,’” said Gengel.

The Challenge Over the next three years, the Gengel family worked to build the orphanage, a task made even more difficult by the destruction the earthquake left behind. Haitians face widespread homelessness, poverty and disease, according to Oxfam.

Gengel calls building the orphanage the greatest building challenge of his life. With the country in ruins, supplies were virtually unavailable and largely had to be brought in from the United States. Thanks to Gengel’s history in the home-building community, donations poured in.

Perini Construction of Framingham, Consigli Construction of Milford and Francis L. Harvey & Sons of Worcester all pitched in to donate supplies for the orphanage.

“Between the three companies, they donated everything we needed times two. They filled an entire box truck with all of the supplies we needed, including a toilet seat for the outhouse,” said Gengel. “We needed a lot – there really was nothing in Haiti.”

Others like TRO JB architect Paul Fallon, STV Construction Project Manager Matt Dunn, and L.A.L. Masonry, Inc. owner Joe Chiaramonte volunteered to design the building and help the construction.

Even more important to Gengel was making sure the orphanage would survive another earthquake. Buildings crumbled or were left structurally unsound after the 2010 earthquake due to a lack of engineering standards and poor construction, according to reports. “I wasn’t going to go in and show them the American way of building things,” said Gengel. “I was going to employ them and show them how to make buildings earthquake-safe.”

Len Gengel and wife Cherylann along with, from left to right, Medlens, Darwens, Kervins and Dotchley.

The process is intensive and involves a system of double layers of reinforcing bars and 18-inch concrete columns every 12 feet.

Joe Chiaromonte trained the local workers to work with rebar to outfit the structure with over 155,000 pounds of reinforcing bars that will help it weather the ups and downs of an earthquake – a movement similar to a ship on the ocean, explained Len. The workers also made all of their own masonry blocks, working around the clock to meet the schedule.

Despite the fact that the orphanage opened last January, the Gengels show no signs of slowing down. They still fly to Haiti around once a month, where they spend a week or two at a time at the orphanage.

“It’s just a part of our lives now,” said Gengel. s

The Professional Contractor

25

MEMBER PROFILE

BY SCOTT SZYCHER

R&R Windows Celebrates 35 Years in Business

A

New residence hall at Mt. Holyoke College.

Central heating plant at UMass-Amherst.

s the owner and president of R&R Window Contractors, Inc. in Easthampton, Roger Fuller got his start in the business even before the company got its start in 1978.

Thirty-five years later, R&R Window Contractors is now lauded as one of New England’s leading window, glass, glazing, curtain wall and building envelope companies.

It started for Fuller and his business partner, brother-in-law Rick Hinton, in the 1970s when they installed windows on behalf of other contractors. Realizing they needed to establish their own name in the business, they opened up R&R Window Contractors. Soon after, Fuller and Hinton hired their own sales force. “I didn’t want to rely on projects coming in from my professional network,” Fuller noted.

In addition to pounding the pavement for project opportunities, R&R Windows has grown and thrived by adapting to changes in the industry over the years. By the early 1990s, building owners and general contractors were looking for windows, curtain walls, glass and glazing services from a single source.

“From their perspective, it was one less subcontractor to manage,” Fuller recalled.

“And it made sense, given the similarities between aluminum and glass.”

To capitalize on this market reality, R&R Windows acquired a firm that had the experience and expertise in curtain wall/storefront fabrication and installation that the company didn’t then have in-house. The synergy between glass and aluminum was the impetus for the company to further expand its product line to include exterior aluminum panels.

Currently, R&R Windows offers a full array of services, including building envelope and insulated panels, to complement its

Scott Szycher is membership marketing and communications manager at the Associated Subcontractors of Massachusetts.

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core glass and window projects. This range of expertise has enabled Fuller and Hinton and their team to work on high-profile jobs in the corporate, educational and medical industries across New England, including the AGFA corporate office building in Wilmington, Mass.; Mt. Holyoke College; UMassAmherst; the University of New Hampshire; and the Robert Giaimo Federal Building in New Haven, Conn.

Despite company growth and industry changes, one thing remains constant: the owners’ insistence on high quality.

“I see some folks in my trade focusing on quantity, not quality, and that just doesn’t work for me,” Fuller commented. “I don’t settle for anything less than top quality work, and I only hire people with that same mentality.”

Judging by R&R Windows’ client list, it is apparent that while many things have changed in 35 years, this commitment stays the same. s

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Mark Richey Woodworking crafts and installs high-end architectural millwork for corporate, institutional, retail, restaurant, and residential clients. Our reputation is founded on peak performance and keen attention to client satisfaction.

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The Professional Contractor

27

YEAR-END PROJECT PHOTO GALLERY 1 The Cheviot Corporation (Needham) completed the curtainwall and glazing at 45 Province St., Boston.

2A 2B Coghlin Electrical Contractors (Worcester) completed the electri-

cal work at the residential complex for the Commonwealth Honors College at UMass-Amherst Campus.

3A 3B J.C. Cannistraro (Watertown) performed the plumbing infrastructure for the state-of-the-art new educational laboratory facility at UMass Amherst, which also included a very complex animal bio safety lab.

3C 3D J.C. Cannistraro is performing the HVAC and fire protection for the

1

2A

2B

3A

3B

3C

3D

28

Fall/Winter 2013

6B

4A

6C

7A

4B 7B

4C

7C Terminal B expansion that connects the existing terminal and infrastructure with an entirely new terminal and associated services.

4A 4B 4C Front Line Inc. (Hopedale) demonstrates how the work is done, whether demolition, abatement, or high rise cleaning.

5

5 J.M. Electrical Company Inc. (Lynnfield) installed controls, emergency lighting, and wiring for new energy efficient boilers for a Boston Housing Authority project.

6A 6B 6C John W. Egan (Newton) performed lead abatement of the cupola and golf leaf repairs at the MA State House.

Lockheed Window (Pascoag, RI) showcases their work at

6A

school projects across the region: 7A Danvers High School 7B East Somerville Community School 7C Southbridge Middle/High School 7D Fitchburg South Street Elementary School (see next page) The Professional Contractor

29

YEAR-END PROJECT PHOTO GALLERY 7D

8A

8B

9A

9C

10A

11A

9B

10B

10C

11B

Marr Companies (Boston)

11C

11D

8A Marr Scaffolding installs the new press box at Dean Col-

Wayne J. Griffin Electric, Inc. (Hopkinton) performed the

lege’s athletic field.

electrical work at many institutions statewide, including:

8B

11A Alice K. Wolf Center, Cambridge, Mass.

Marr works on a new six-story, 150,000-square-foot residence hall at Worcester State University.

9A 9B

R & R Window Contractors (Easthampton) com-

Credit: Neil Alexander Photography 11B Springfield Data Center, Springfield, Mass.

pleted the window installations at Mt. Holyoke College’s new residential dorms.

Credit: RJU Photography

9C R & R Window’s work on display at the new science labo-

ter, Mass.

ratories at UMass-Amherst.

Credit: UMass Medical School

10A 10B 10C

Southeastern Metal Fabricators’ (Rockland)

staircases, handrails and rooftop guardrails are a prominent feature of projects across the region.

30

Fall/Winter 2013

11C UMass Medical School, Albert Sherman Center, Worces-

11D WPI Sports and Recreation Center, Worcester, Mass.

Credit: RJU Photography

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