Construction Outlook July 2018

JULY | 2018

A PUBLICATION OF THE UTILITY CONTRACTORS’ ASSOCIATION OF NEW ENGLAND, INC.

UCANE Contractors Participate in National Trench Safety Week

UCANE Interview:

Representative Brian Ashe

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W H A T E V E R Y O U N E E D , W H E N E V E R Y O U N E E D I T, N O M A T T E R W H AT.

Years of Excellence 1954-2018

JULY, 2018

IN THIS ISSUE

OFFICERS President RICHARD PACELLA, JR.

3 President’s Message:

President-Elect MARCELLA ALBANESE

5 Legislative Update:

R. M. Pacella, Inc.

Albanese Brothers, Inc.

Treasurer RYAN McCOURT

McCourt Construction Company

Secretary BRIAN COONEY

C. C.Construction Inc.

BOARD OF DIRECTORS GREG ANTONELLI GTA Co., Inc.

VINCENT BARLETTA

Barletta Heavy Division

TONY BORRELLI

Celco Construction Corp.

BEN CAVALLO

C&S Insurance Agency

ANDREW DANIELS J. Derenzo Co.

GREG FEENEY

Feeney Bros. Utility Services

JERRY GAGLIARDUCCI

Gagliarducci Construction, Inc.

NICK GAMACHE

Safety is Always in Season

• Ballot Questions Avoided: New Laws Governing Family Medical Leave, Minimum Wage, and Sales Tax Passed • While “Grand Bargain” Proceeds, SJC Says Income Surtax Ballot Question Will Not • End of Formal Session Rush Begins as Massachusetts Senate Passes Wage Theft, Construction Zone Safety and Bike Safety Legislation • Baker-Polito Administration Awards Funding for Local Water Quality Management • News in Brief

17 UCANE Interview:

Representative Brian Ashe (D-Longmeadow)

21 Legal Corner:

MA Surpreme Judicial Court Issues Major Decision in Construction Litigation Overruling Century Old Law on Quantum Meruit

25 UCANE Contractors Participate in National Trench Safety Week 27 Save the Date: UCANE’s 64th Annual Banquet 29 Spotlight on Cape Cod:

• EPA New England Op-Ed: The Time to Act on Cape Cod Water Quality is Now • Four Towns Ally for First Ever “Watershed Permit” to Clean-Up Pleasant Bay

MARCO GIOIOSO

39 Annual Solicitation and New Programs for the 2019 Intended Use Plan

MIKE GORMAN

40 MWRA Annual Water Quality Report: Investing in Your Water

BILL LEONARD

53 Safety Corner:

Rain for Rent - New England P. Gioioso & Sons, Inc. E. J. Prescott, Inc. Aqua Line Utility, Inc.

AL MORTEO

FED. CORP.

JOHN OUR

Robert B. Our Co., Inc.

JOSEPH PACELLA

RJV Construction Corp.

PAUL SCENNA

Albanese D&S, Inc.

CHRIS VALENTI

GVC Construction, Inc.

KEN VOGEL

WES Construction Corp.

DAVID WALSH

Pawtucket Hot Mix Asphalt

ANNE KLAYMAN

Executive Director

Ten Most-Asked Questions About the OSHA Inspection Process

59 Technology in Construction: Are You Still Using a Router?

61 Financial Management:

• More Give in the Gift Tax • Don’t Neglect Estate Planning • Moving Your Business to a Low-Tax State

Editor: Anne Klayman, Associate Editor: Suzanne Savage, Magazine Designer/Assistant Editor: Sherri Klayman Construction Outlook Chairman: Richard Pacella, Jr. Editorial Board: Richard Pacella, Jr., Marcella Albanese, Ryan McCourt, and Brian Cooney CONSTRUCTION OUTLOOK published monthly by the Utility Contractors’ Association of New England, Inc., 300 Congress Street, Suite 101, Quincy, MA 02169; Tel: 617.471.9955; Fax: 617.471.8939; Email: aklayman@ucane.com; Website: www.ucane.com. Statements of fact and opinion are those of the authors alone and not necessarily those of UCANE and the Construction Outlook editorial board and staff. Subscriptions are included in dues payments for UCANE members. Presorted Standard postage paid at Brockton, MA. POSTMASTER, please send form #3579 to Construction Outlook, Crown Colony Office Park, 300 Congress Street, Suite 101, Quincy, MA 02169.

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Safety is Always in Season I hope everyone enjoyed the July 4th holiday with their families and that our members are busy during these peak summer months. If you find yourself complaining about the heat, just think back to those freezing days in February or April, for that matter. But while we enjoy the warm weather and work countless hours to finish our jobs, as employers, our number one priority continues to be employee safety. It is not about mere compliance, it is engrained in us as part of the culture of our businesses.

T

here are inherent safety risks associated with construction, but even more so in the underground utility construction industry, with excavation and trench work part of our everyday lives. With the constant changes in technology, regulations, and reporting requirements, we need to continue comprehensive safety training programs for new employees and ongoing education for our veteran employees.

I would encourage our members to participate in the variety of safety seminars UCANE offers each year. They include competent person and confined space entry, OSHA regulations, and other important topics. These seminars are a tremendous benefit to our members. Companies should strive not to just reduce accidents on the jobsite, but to eliminate them completely.

While this may sound unrealistic given the nature of our business, this philosophy will result in more productive and safer jobsites.

The latest example of UCANE’s commitment to safety was our Association’s participation in National Trench Safety Week held June 18-23, 2018. Through UCANE’s partnership with the National Utility Contractors’ Association (NUCA) and OSHA, hundreds of excavation and pipeline

JULY, 2018

companies across the country conducted trench safety programs during the course of the week.

The program was a tremendous success locally, with close to 2,000 workers being trained in Massachusetts alone by UCANE member companies. (See article, page 25.) We look forward to informing our member contractors about, and participating in, similar OSHA endorsed safety programs in the future.

It is no secret that while employee safety is of the utmost importance, it’s also good for your company. There are obvious direct costs from an on the job accident. The indirect costs of an accident, however, can also be extremely costly. You can expect an increase in your insurance premium for several years after the accident. You may require overtime to make up for lost time at the jobsite. The profit from a job may be significantly less due to delay. You may also need to hire new personnel. There may also be legal costs and the potential for OSHA fines.

So in the end, maximizing investment in jobsite safety and training is, not only the right thing to do, it will also result in a well-trained, safe, and efficient workforce who will continue to take pride in the important work that they do. n

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Mark Molloy, Esq., Lynch Associates, Inc.

A

Ballot Questions Avoided: New Laws Governing Family Medical Leave, Minimum Wage, and Sales Tax Passed

s reported widely by numerous media outlets, Governor Charlie Baker signed, “An Act Relative to Minimum Wage, Paid Family Medical Leave, and the Sales Tax Holiday” at the end of June. The new law, referred to as the “Grand Bargain” due to its combination of potentially competing interests, will prevent a variety of ballot initiatives from being considered by voters in November. In its passage, the new law will create a permanent sales tax holiday, increase the minimum wage over the next five years, and create a new paid family and medical leave program in Massachusetts.

For many, the most notable provision of the new law is the creation of a new Paid Family and Medical Leave program for Massachusetts employers and employees.

The new program will provide employees, who contribute to the program, the ability to take paid leave for up to 12 weeks a year to care for a family member or bond with a new child, 20 weeks a year to deal with a personal medical issue, and up to 26 weeks to deal with an emergency related to deployment of a family member for military service.

The amount of pay employees taking leave under this law will receive is determined on a sliding scale based on income, subject to a cap set by the statute. Initially, the maximum amount of benefits will be $850, but each year the cap will be adjusted to a figure that is 64% of the average weekly wages in the state. The benefits provided by this law will be funded through an additional payroll tax of 0.63%, which will be shared by employers and employees. Employers with fewer than 25 employees will not need to pay in, but all employees will have to pay their share of the tax. The state will start collecting the tax next summer, and employees can start receiving the benefits in 2021. Employers will have the option of applying for approval to satisfy their obligations under the statute through a private plan, if the private plan provides at least the same benefits provided for under the statute

JULY, 2018

and meets other requirements. For the law to apply to municipal employees, the city or town involved must vote to accept participation in the program.

The law also calls for the state minimum wage to increase incrementally from the current $11 per hour to $15 per hour in 2023. The pace of the increase in the statute is slower than the pace sought by the advocates of the minimum wage ballot question that had been put forward.

Coupled with that increase will be a raise to the minimum base wage rate for tipped workers, up to $6.75, that will also phase in over a 5-year period commencing in January of 2019. Once the minimum wage reaches the $15 level, Massachusetts will join California and New York as the states with the highest minimum wages in the country. In an interesting additional move, the new law eliminates time-and-a-half pay for work performed by certain employees on Sundays, a remainder of Massachusetts’ antiquated “Blue Laws.”

Finally, the new law creates a permanent two-day weekend sales tax holiday with the date for such event to be determined by either the Massachusetts Legislature or the Massachusetts Department of Revenue, depending on the circumstance.

While not endorsing every word of the “Grand Bargain,” Raise Up Massachusetts and the Retailers Association of Massachusetts, the two major organizations behind the ballot questions, have now agreed to abandon their respective efforts to bring the initiatives to the November ballot.

Continue to read Construction Outlook magazine for updates on the regulatory guidance provided on the paid family and medical leave act as it is developed. While there is a staggered implementation period (2019 for employee/employer contributions/2021 for benefit provisions), there is a significant amount of regulatory work to be completed. continued on page 7

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Legislative Update continued from page 5

A

While “Grand Bargain” Proceeds, SJC Says Income Surtax Ballot Question Will Not

suit filed by the Massachusetts High Technology Council, Mass. Taxpayers Foundation, and Associated Industries of Massachusetts successfully derailed a proposed $2 billion income surtax ballot question from November's ballot. Called the “Fair Share Amendment” by its supporters, the question sought to amend the state Constitution to impose a 4% surtax on annual household incomes over $1 million, with the associated revenue dedicated to education and transportation.

The Supreme Judicial Court (SJC) decision, which remands the case to county court, ruled the question improperly mixes two different spending priorities and a major change in tax policy. The proposed constitutional amendment specified that revenues collected from the surtax could only be spent to provide “quality public education and affordable public colleges and universities, and for the repair and maintenance of roads, bridges, and public transportation.” The court found that voters who favored a graduated income tax, but not earmarking funds for a specific purpose, and voters, who wanted to designate funds for transportation and education but not to adopt a graduate tax structure, would be in an "untenable position."

As many media outlets highlighted, the SJC used the following analogy to demonstrate the problem behind the

proponent’s ballot question: “[a] voter who favored designating specific State funds for schools and transportation (subject to legislative appropriation), but not a graduated income tax, would be confronted with the same conundrum. A voter who commuted to work on an unreliable subway line, but who did not have school-aged children and was unconcerned about public education, might want to prioritize spending for public transportation, without devoting additional resources to public education, but would be unable to vote for that single purpose. A parent of young children, who lived in a rural part of the Commonwealth and did not own a motor vehicle, would be unable to vote in favor of prioritizing funding for early childhood education without supporting spending for transportation.”

While proponents lamented the Commonwealth’s loss of a potential $2 billion, opponents cheered the result.

As Ms. Eileen McAnneny, President of the Massachusetts Taxpayers Foundation (MTF) stated in a release from the MTF, “By invalidating this ballot initiative, the court has signaled that the end does not justify the means, no matter how popular the proposal.” Senator Jason Lewis (D-Winchester) has already stated that he will file legislation on the same issue for the 2019-2020 session.

continued on page 9

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Legislative Update continued from page 7

End of Formal Session Rush Begins as Massachusetts Senate Passes Wage Theft, Construction Zone Safety and Bike Safety Legislation

I

n a familiar rite of passage, the Massachusetts legislature has begun its “end of formal session” rush to pass legislation before the July 31 deadline for undertaking controversial measures. In a recent push, the Massachusetts Senate passed legislation governing wage theft, construction zone safety, and bike safety.

In passing legislation governing wage theft (SB2574), the Massachusetts Senate kept intact language mandating vicarious liability throughout the contractor relationship chain. While iterations of the legislation in previous years contained limitations on the extent of vicarious liability, this year’s legislation contained no such restrictions. Accordingly, UCANE, along with 17 other trade associations and business groups, opposed the legislation stating: “We would like to acknowledge that [this legislation] does include some important changes based on our discussion about the ambiguous nature of what types of contracts and working relations this law would cover, the confusing and punitive process for vicarious liability and stop work orders, an unreasonable statute of limitations, and the overall impact to small business. We appreciate the Chairwoman and the Senate Committee on Ways and Means for taking steps to include provisions to best stop Wage Theft while attempting to mitigate unintended consequences to innocent, hardworking business. ... While we appreciate these new provisions, we continue to voice our strong opposition to any form of vicarious liability. Throughout our discussions, we have offered these alternative suggestions instead of vicarious liability, not in addition to vicarious liability.”

The legislation, which allows the Attorney General to file civil actions and issue stop work orders in wage theft cases, also creates a trust fund to repay stolen wages when other recovery options have been exhausted.

As part of the late session machinations, the Massachusetts Senate also passed legislation (SB2569) creating enhanced penalties for speeding through active construction work zones. In supporting the Governor’s legislation, UCANE wrote “MassDOT has historically suggested reducing speed limits in these areas, yet they do not have the authority to enforce these suggestions. Granting authority to the MassDOT to set speed limits and further, the authority, to enforce them through increased fines will not only improve safety of the workers in these zones, but drivers’ safety as well. As demonstrated by a variety of state and national studies, reducing the speed limit in and around work zones can have a significant impact in safeguarding work zone contractors.” The legislation, which allows for MassDOT to reduce speed limits within construction zones where work is actually occurring, will allow for doubling of fines within the marked areas. Every construction association supports the legislation.

The final piece of legislation passed at the end of June of interest to UCANE was SB2584, An Act Relative to Traffic Safety. The legislation requires certain distances from vulnerable road users, depending on vehicle speed, distinguishes between the use of convex and cross-over mirrors; requires the use of a lateral protective device on a Class 3 or above motor vehicle, trailer, or semi-trailer unit; and establishes a state-wide speed limit of 25 mph on a state highway or parkway inside a thickly settled or business district within a city or town that has gone through the process of accepting this lower limit. Of note, Call Your Nearest GENALCO Warehouse the legislation will require the CommonFor These Supplies HYDRAULIC GRADE 8 wealth to equip any vehicle, exceeding STROBE LIGHTS OIL NUTS & BOLTS 10,000 lbs. gvw, purchased after January WEATHER CAPS AIR CLEANERS 1, 2019 to have lateral protective devices GREASE FITTINGS BUCKET TEETH or sideguards. Under the legislation, any HYDRAULIC HOSE entity with a state contract will be required BUCKET LIPS to have the same on their vehicles beginEQUIPMENT PAINT BUCKETS ning in January 1, 2022 for motor vehicles not previously used on state contracts.

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The three pieces of legislation are now before the Massachusetts House of Representatives.

continued on page 11

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Legislative Update continued from page 9

Baker-Polito Administration Awards Funding for Local Water Quality Management

A

ccording to a press release from the Governor’s office, the Massachusetts Department of Environmental Protection (MassDEP) awarded $220,000 in funding to five projects to assess watershed pollution and plan for work to address water quality impairments. The projects, selected each year by the MassDEP, are located in Bourne, Buckland, Milford, Wareham, and in the Connecticut River Valley.

The U.S. Environmental Protection Agency (EPA) through Section 604b of the federal Clean Water Act funds the grants. Since 2007, MassDEP has funded 67 projects under the 604b water quality management program, totaling more than $3 million to address non-point source pollution problems.

The term “non-point source pollution” refers to contaminants that are carried to a waterway as a result of precipitation and stormwater runoff from the land or infiltration into the soil. Common types of nonpoint source pollution include phosphorus and nitrogen from lawn and garden fertilizers, bacteria from

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pet waste and waterfowl, oil and grease from parking lots and roadways, and sediment from construction activities and soil erosion.

Projects selected by the Baker-Polito Administration to receive funding are: • Town of Milford ($25,000). Funding will be used for a sub-watershed restoration plan for the Charles River headwaters, including an assessment of existing conditions, site-specific restoration goals, and conceptual stormwater best management practice designs will be developed by the Town of Milford.

• Franklin Regional Council of Governments ($32,000). Funding will be used to conduct an assessment of stormwater pollutant loads and evaluate site suitability for Green Infrastructure projects in the Town of Buckland. An outreach program to disseminate the assessment protocols will be conducted in adjoining towns in the Deerfield River watershed. continued on page 13

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Legislative Update continued from page 11 •

Pioneer Valley Planning Commission ($66,618).

Funding will allow the Pioneer Valley Planning Commission to join with the U.S. Geological Survey and the Connecticut River Conservancy to conduct a water quality-monitoring program on the Connecticut River to characterize non-point source pollution loading.

• Southeast Regional Planning and Economic Development Commission ($46,882). Funding will allow the Southeast Regional Planning and Economic Development Commission to examine how different cranberry bog restoration scenarios in the Wareham River watershed could reduce nitrogen loading.

• Town of Bourne ($49,500). Funding will allow the water quality and health of the benthic habitat of Red Brook Harbor to be assessed to provide additional data required for the development of a Total Maximum Daily Load determination.

To find out more information about grants and financial assistance related to water quality and watersheds, please visit: https://www.mass.gov/service-details/grants-financial-assistance-watershedswater-quality. continued on page 15

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Legislative Update continued from page 13

News in Brief •

•

Water Infrastructure Advisory Committee Meets Again. Created by Chapter 259 of the Acts of 2014, the Water Infrastructure Advisory Committee met again in June. The Committee, designed to measure and report on the Commonwealth’s efforts to address its $21 billion water infrastructure funding gap, is comprised of a variety of members ranging from the Massachusetts Water Works Association and Massachusetts Municipal Association to UCANE and the American Council of Engineering Companies, Massachusetts. As the Committee continues to meet, it is expected to analyze the effectiveness of the measures created in ch. 259 while entertaining new efforts to fund water infrastructure throughout the state.

For more information on the agenda and meetings of this important Committee, please visit: https://www.mass.gov/event/massachusettswater-infrastructure-advisory-committee-meeting-2018-06-27t100000-0400-2018-06 Commonwealth May See Additional “Rainy Day” Fund Deposit. Capital gains tax revenue has triggered a $290 million deposit into the Com-

•

monwealth's rainy day fund with an additional potential for $190 million more to be deposited in the fund. State finance law requires that capital gains receipts over a $1.169 billion threshold be automatically transferred to the stabilization fund.

Massachusetts taxpayers exceeded that threshold in the third quarter, redirecting $290 million to the stabilization fund so far. In the previous year, the Massachusetts Department of Revenue reported $134.7 million in capital gains revenue.

If fourth-quarter growth matches the year-to-date rate of growth, Massachusetts would see the additional transfer of funds.

Former Mayor Warren to HKS. Mr. Setti Warren will become the executive director of the Shorenstein Center on Media, Politics and Public Policy at the Harvard Kennedy School on July 9.

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Representative Brian Ashe (D- Longmeadow)

Representative Ashe grew up around politics and has been involved one way or another since he was in high school. His father has been the Hampden County Register of Deeds for the past 36 years, and that inspired him to get involved. Eighteen years ago he successfully ran for a seat on the Longmeadow Select Board. He served there for eight years until he was elected to the House of Representatives in 2008. While on the Select Board his passion to serve really blossomed and since then he’s been blessed to be able to serve the 2nd Hampden District for the past 10 years.

Q:

As you are aware, access to clean drinking water and proper management of wastewater is critical. Please discuss your thoughts relative to the importance of maintaining our drinking water and wastewater infrastructure.

A:

I’ve always known the importance of our waterways and making sure that everyone has access to clean water. While serving on the Select Board in Longmeadow, I started to see how imperative it is to maintain our waterways, as many cities and towns have antiquated wastewater infrastructures. This becomes a major liability to our local communities, both financially as well as making sure that our water systems are working properly for all of our residents.

Q: A:

As a Western MA legislator, what are the biggest challenges for your district and region with regard to continued economic growth?

Being a Western MA legislator has many challenges, but the biggest is probably the sheer number of legislation that we have in comparison to our Eastern MA counterparts. All of our legislators combined in Western MA is about the same amount that they have representing the city of Boston. That’s what makes it so important for us out here to work together for the betterment of all of Western MA. We’ve got a good mix of new and veteran Representatives and Senators out here, which is

JULY, 2018

important when we’re trying to bring more economic growth to the area. Having built relationships throughout Western MA and more importantly with the leadership in the State House, many of us have been able to bring financial aid as well as new funding resources for continued economic growth to the region.

Q:

As costs continue to rise, please give your thoughts on how the state will continue to fund local aid to cities and towns to help support basic municipal services, specifically water infrastructure.

A:

I’m very proud that we’ve been able to not only maintain but also increase the local aid that we send to our local cities and towns. I know how important this aid is to our communities as they try to budget all of their priorities, while trying to maintain their streets, sidewalks, and waterways. As long as we try to stimulate the economy and our revenues continue to stay positive, our commitment to our local communities will remain one of our top priorities.

Q:

What are some of your priorities before the end of formal legislative sessions for the 2017-2018, and what do you see as some of the issues that will need to be addressed in the next session? continued on page 19

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JULY, 2018

Interview continued from page 17 Local aide ensures that our constituents, our neighbors, our friends, and our families can live their lives knowing that their local city or town is prepared for now and the future. I will continue with these priorities, knowing that everything begins and ends in our local communities.

A:

As we wind down the end of our 2017-2018 budget cycle and formal session I’m very proud of what we were able to accomplish the past two years. I was very happy to be able to secure funding for my local seniors, our students, as well as funding for some of our larger agencies that serve the greater Western MA area.

My priorities have always been with our senior population, our children’s education, our public safety, and taking care of those who unfortunately cannot take care of themselves.

Local aide ensures that our constituents, our neighbors, our friends, and our families can live their lives knowing that their local city or town is prepared for now and the future. I will continue to focus on these priorities, knowing that everything begins and ends in our local communities.

Making sure that our hometowns have the adequate services and structures to maintain every day life is the backbone to everything else that we do. n

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Construction & Public Contracts Group, Hinckley Allen, LLP

Joel Lewin Partner

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MA Supreme Judicial Court Issues Major Decision in Construction Litigation Overruling Century Old Law on Quantum Meruit Under prior Massachusetts law, if a contractor intentionally breached a term of a construction contract, that contractor not only lost its right to assert subsequent claims under the contract, but if that contractor substantially performed, it also was barred from recovering the value the work performed in equity. But in June 2018 the Massachusetts Supreme Judicial Court changed that law. In the recent G4S Technology LLC v. Massachusetts Technology Park Corporation decision, the SJC overruled existing law, and held that a party that intentionally breaches a construction contract yet substantially performs a project may still recover the value of work performed under quantum meruit.

Design-Build Project and Litigation In 2011, G4S Technology LLC (“G4S”) entered a $45.5 million design–build contract with Massachusetts Technology Park Corporation (“MTPC”) for a 1,200-mile fiber optic high-speed internet network in western and north central Massachusetts. Following substantial completion, MTPC issued a Notice of Withholding of approximately $4 million relating to delays on the project allegedly caused by G4S. In September 2014, G4S issued an amended Request for Equitable Adjustment seeking approximately $10 million for extra time and costs that G4S incurred on the project as a result of MTPC’s alleged failure to fulfill its obligations under the contract. MTPC issued a Certificate of Final Completion of the Work on January 20, 2015.

In 2015, G4S filed a lawsuit against MTPC alleging breach of contract, breach of warranty and quantum meruit seeking approximately $14 million in damages.

Before there was any trial, MTPC moved for summary judgment on the ground that G4S had intentionally breached the subcontractor payment provisions in the

JULY, 2018

design-build contract and therefore G4S was precluded from pursuing its own unrelated breach of contract claims. MTPC alleged that G4S had consistently not paid its subcontractors on time and yet provided inaccurate payment certifications to the contrary to MTPC. Applying then-existing Massachusetts law, the Superior Court agreed with MTPC and held that G4S could not pursue its $14 million damages claim under the design-build contract because G4S did not completely and strictly perform. The Superior Court also held that G4S could not recover under quantum meruit because under existing law an intentional breach of the contract precluded a finding that G4S acted in good faith, a necessary element of a quantum meruit claim.

SJC Decision G4S appealed that decision to Massachusetts Supreme Judicial Court. On June 12, 2018, the SJC reinstated G4S’s claim against MTPC for $14 million under quantum meruit. The SJC, however, affirmed the Superior Court’s decision to dismiss G4S’s contract claim. continued on page 23

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Legal Corner continued from page 21 On the breach of contract claim, the Court affirmed that complete and strict performance is still required under construction contracts. But the Court clarified that that requirement only applies to the “design and construction” terms of the contract. For all other contract terms in a construction contract that are “subsidiary to or supportive of the design and construction” terms, ordinary contract principles apply, including the materiality analysis.

In the G4S case, the Court held that by intentionally submitting inaccurate payment certification, G4S had committed a material breach of a subsidiary term of the contract and therefore G4S was barred from pursuing a breach of contract claim against MTPC. Despite that, the Court held G4S could recover for the value of the work performed under quantum meruit. Most importantly, the SJC overruled a line of older cases to hold that a party that intentionally breaches a construction contract can still recover the value of work performed under quantum meruit. Previously quantum meruit recovery was available only for a party that substantially performed and did so in good faith.

The Court ruled in G4S that the good faith obligation applies to the “contract as a whole” so that an intentional breach in bad faith will not foreclose that party’s right to recover under quantum meruit. The SJC held that trial court’s primary focus should be the value of

the benefit conferred. The SJC held that when faced with a claim for quantum meruit recovery the trial court must examine: the individual breaches in the context of the contract as a whole; the value of uncompensated work; the damage caused by the intentional breach; the total performance by the parties; and the equities to achieve a just result. With that new guidance, the SJC remanded the G4S case to the trial court and instructed the trial court to conduct further fact finding on G4S’s quantum meruit claim.

Takeaways​ ​The G4S decision significantly impacts future construction project disputes in several ways. First, the Court affirmed and clarified the scope of the strict compliance obligations in construction contracts, which will provide greater certainty to contracting parties. This case also will reduce the risk of unjust and substantial windfalls. Under the prior law, MTPC was the beneficiary of a $14 million windfall, receiving a completed project that was arguably worth $55 million for the price of $41 million. This decision prevents that type of unjust windfall. Most importantly, the SJC decision allows a contractor that substantially performs a construction project to expect to be compensated for the value of that work. By ensuring that the law embodies this common sense principle, the SJC decision in the G4S case will benefit all constituents in the construction industry and help ensure just and equitable dispute outcomes. n

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UCANE Contractors Participate in National Trench Safety Week

he week of June 18-23 was designated as Trench Safety Stand Down Week (TSSD). This is the second year of this national program, first championed by the National Utility Contractors Association (NUCA) through a partnership with OSHA. In 2017, NUCA affiliated excavation contractors held Trench Safety sessions across the country and were credited by OSHA for training over 10,000 construction employees who work in the excavation and utility construction industry.

UCANE reached out this year to NUCA to get information on how we could support NUCA’s efforts by participating in this great national program. NUCA was more than generous in sharing information about the program and providing some great suggestions for UCANE contractors to utilize at “Tool Box Talks” and other company safety presentations.

Mike Lenihan spearheaded the UCANE promotional efforts to make our contractors aware of the national pro-

gram and to provide the literature, safety posters, and tools to run a safety session. UCANE’s Safety Committee, Board Members, and eventually the entire contractor membership was tuned into the program and encouraged to participate. Mike also worked with Region 1 OSHA Training Officer Peter Barletta, who graciously offered to make himself available to any contractor who would like help running a session during Trench Safety Week. Mr. Barletta was impressed by the sessions held by members P. Gioioso & Sons, Inc. and Aqua Line Utility, Inc. Overall UCANE’s first year participating in this very worthwhile national event was a great success. Twentyone member firms reported back that they held Trench Safety sessions to a combined count of close to 2,000 construction workers, with Feeney Brothers Utility Services recording the most attendees. The UCANE count was forwarded to NUCA who recently reported a record number of 15,000 employees participating nationwide in the 2018 TSSD. UCANE companies that participated in this safety program will receive a formal Certificate from OSHA suitable for framing, commending their efforts and dedication to Trench Safety.

Thanks to the following companies that participated in the UCANE sponsored effort: Robert B. Our Co., Inc.

GVC Construction, Inc. P. Gioioso and Sons, Inc.

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Albanese Brothers, Inc. Aqua Line Utility, Inc. Baltazar Contractors, Inc. C. C. Construction, Inc. D’Allessandro Corp.

J. Derenzo Co. The Dow Company, Inc. FED. CORP. Feeney Brothers Utility Services GVC Construction, Inc. Gagliarducci Construction, Inc. P. Gioioso and Sons, Inc. Ludlow Construction Co., Inc. McCourt Construction Co. Robert B. Our Co., Inc. Revoli Construction Co., Inc. Umbro and Sons Const. Corp.

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EPA New England Op-Ed

The Time to Act on Cape Cod Water Quality is Now By: Alexandra Dunn, Regional Administrator U.S. Environmental Protection Agency, New England Region

Every summer, Cape Cod tourism springs to life – visitors return, rental properties fill up and beaches start to get crowded. The Cape’s tourism economy depends on a healthy environment, and EPA, like many Cape municipalities and their residents, is concerned about its water quality in ponds, streams, and coastal waters.

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ape Cod is experiencing wide-spread environmental problems due to too much nitrogen pollution entering its coastal waters. A primary source of nitrogen pollution is from septic systems, traveling in groundwater through sandy soil and eventually entering local waterways. Another source is in stormwater runoff, flowing off impervious surfaces like roads, parking lots, and roofs.

When too much nitrogen is released into marine waters it supports the growth of algae. Too much algae can hurt marine life, is aesthetically unpleasant, and in extreme cases can be dangerous. Cape Cod is known for its beautiful beaches and ponds, so it’s important to act quickly.

The time to act is now. EPA is committed to helping restore water quality on the Cape. We worked closely with the Commonwealth and Cape Cod Commission to develop a regional strategy – the “208 Plan,” named for a section of the Clean Water Act – which provides a framework for all entities, including the 15 Cape Cod municipal governments and other non-governmental organizations, to work together to protect and improve water quality tailored to and

JULY, 2018 2016 SEPTEMBER,

appropriate for all 53 watersheds on the Cape. The 208 Plan helps keep the focus on finding solutions for each unique watershed, with municipalities collaborating and working together, and allowing the decision-making to remain local.

EPA, the State, towns, and partners across Massachusetts have been working to develop solutions and technologies to solve this problem.

Through the Southeast New England Program continued on page 31

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Cape Cod continued from page 29 for coastal watershed restoration, EPA has funded approximately $5 million in grants supporting projects such as developing innovative septic systems that remove nitrogen, and investigating the feasibility and effectiveness of aquaculture in removing nitrogen from marine waters. EPA has also performed other work to find solutions for Cape water issues, helping towns get from conceptual plans to in-the-ground projects as efficiently as possible. These have included guidelines for siting permeable reactive barriers that filter nitrogen from groundwater, evaluating how sewering projects affect local coastal water quality, and installing stormwater treatment areas to remove nitrogen from road and parking lot runoff.

EPA is very encouraged that Cape Cod towns are engaging in a substantive, action-oriented planning process to restore and maintain the health of their coastal waters. As towns finalize their plans to meet goals and timelines, it is critical that they work together to solve problems affecting their shared waters and that they commit the resources necessary to turn their plans into action.

We applaud efforts like the one being carried out among the four Pleasant Bay communities of Harwich, Chatham, Brewster, and Orleans. Residents recently supported adoption of a new joint action plan designed to restore the Bay and directed their town leaders to sign an agreement spelling out each town’s commitment to reducing the amount of nitrogen released into Pleasant Bay. These towns are also working with MassDEP and the Cape Cod Commission to develop a first-of-its-kind state watershed permit that is expected to be issued this summer.

There is a lot of planning that goes into a large-scale nitrogen reduction effort across 53 watersheds and 15 different towns. This effort requires checks and balances, and EPA will continue to track progress to ensure that timely action is taken. We are proud to be part of this work, and we are proud of the Cape Cod municipal governments, the Commonwealth of Massachusetts and the Cape Cod Commission for working together to find cost-effective, local solutions.

met. Now is the time for Cape Cod towns to step forward and protect Cape Cod’s waters. Nothing less than the future of the Cape is at stake, and EPA is committed to work side-by-side with you to help solve this problem. continued on page 33

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Cape Cod continued from page 31

Four Towns Ally for First Ever “Watershed Permit” to Clean-Up Pleasant Bay

J

ust think. Our little towns, Harwich, Chatham, Brewster and Orleans, will soon make history.

No, they aren’t about to send a delegation to North Korea. After all that’s been done. But they’re on the cusp of applying to the Massachusetts Department of Environmental Protection for a Watershed Permit, which would be the first issued in the state.

Basically the permit certifies DEP approval on the towns’ plans to manage the “pollutants of concern,” in this case nitrogen, to achieve compliance with the targeted goals (in this case total maximum daily loads of nitrogen) entering the “receiving waters,” in this case Pleasant Bay. “The application has not been sent into the DEP yet,” noted Carole Ridley, coordinator of the

Pleasant Bay Alliance. “We have sent a letter to the boards of selectmen to sign that will go to the Cape Cod Commission requesting a consistency determination for the Pleasant Bay Targeted Water Management Plan with the 208 plan. That went in last week.”

That sounds complicated but it means the commission agrees that the towns’ plans will indeed produce lowered levels of nitrogen, and the healthier bays and inlets that meet the goals set forth in the 208 plan drawn up by the commission and certified

by Gov. Charlie Baker in 2015. The 208 refers to the section of the Federal Water Pollution Control Act passed in 1978 and it is under this act that the approval for the permit is given.

Within the last weeks Ridley has also gone to all continued on page 35

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Cape Cod continued from page 33

“We identified the nitrogen contributions from each town and the load reductions required from the select boards and gotten them to sign an exteneach town,” Ridley said. sion of the 1995 inter-municipal agreement that creIn total the four towns will reduce the amount of ated the PBA; it’s good for 20 years. nitrogen seeping or being discharged into Pleasant “We need [the commission’s] determination [of Bay by 17,717 kilograms a year. consistency] Ridley explained. “Then we have all the Orleans has the most work to do; removing 6,980 pieces to submit the request for the permit. The letter kg or 39 percent. Brewster will remove 2,262 or 13 of consistency is put together with the IMA the towns percent, Chatham 4,076 kg or 23 percent and Harsigned, the targeted water management plan, correwich will extract 4,399 kg or 25 percent. These targets spondence with MEPA (Massachusetts Environmenare broken down through all 19 sub-embayments of tal Protection Agency) and a copy of the terms and the 6,200 acres of Pleasant Bay. conditions.”

“The watershed permit is a 20-year permit,” RidThe Agreements ley noted. “A key piece is the implementation table Boston Area that list actions to be taken in the first five years. At But what exactly is being permitted and what Locations the end of five years we’ll check in with the DEP and have the towns agreed to? see how things are going.”

2 Dexter Street Most of this excess nitrogen, Everett, MA 02149 Boston Area 75 percent, comes from septic Boston Area Locations systems; storm water runoff adds Locations 431 Second Street 9 percent, and 16 percent is from Everett, MA 02149 2 Dexter Street 2 Dexter Street golf course and lawn fertilization.

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Cape Cod continued from page 35 aquaculture, fertilizer removal, denitrifying septic systems. Without a permit the town would not be able to get credit for non-traditional technologies.”

In addition, as long as the towns are committed and proceeding with the plan, the DEP won’t enforce any nitrogen pollution issues in the bay.

Getting Grants Another benefit of holding a permit is higher ranking when applying for grants to finance the projects and pilot studies.

Ridley was running about last week, meeting to meeting, getting the four towns to sign just such a grant application, to the Southern New England Estuaries Project, that would provide $348,507, mostly for updating the estuary model of nitrogen in the bay, but also for testing and monitoring.

The towns would have to come up with a match of $285,968; that includes $19,500 Orleans is already spending with its sewer project engineer, $30,000 from the Cape Cod Commission, and about $145,390 in cash subject to town meeting approvals. The PBA will coordinate all the activities and tasks under the grant.

The PBA also oversees water quality monitoring in the bay for the four towns. They are currently seeking volunteers.

“We have five different sampling dates this year, two in July and three in August,” Ridley said. “On a designated morning people go out to 30 locations and collect samples. Training is provided. It’s basically one to two hours.”

Anyone interested in volunteering should contact the alliance through its website, www.pleasantbay.org.

Ridley expects the permit to be approved.

“Nothing they will see is new. We have worked closely with the CCC and DEP through the whole process,” she said. “I anticipate they will move quickly through the last stages of review.”

Written by Rich Eldred. Reprinted with permission from the Cape Codder. n

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JULY, 2018

Annual Solicitation and New Programs for the 2019 Intended Use Plan Since its establishment in 1989, the Massachusetts Clean Water Trust (the Trust) has partnered with the Massachusetts Department of Environmental Protection (MassDEP) to help develop and finance water infrastructure projects through the Commonwealth’s Clean Water and Drinking Water State Revolving Funds (SRF). The Trust administers the financing of loans while MassDEP manages project development and oversight.

A

nnually, MassDEP solicits projects for next year’s funding, and the solicitation for 2019 will be released in late June early July. MassDEP will review submitted projects and rank each based on their impact on public health, the environment and the standards and goals of the Clean Water and Safe Drinking Water Acts. This solicitation is sent to cities, towns and consulting engineers.

In 2018, commitments were made to finance $610.5 million in water infrastructure projects, 61 new construction projects and continued funding for 10 multi-year projects. Additionally, projects for communities that meet the Trust’s affordability criteria will collectively receive $21.1 million in principal forgiveness for their 2018 loans. For more information on submitting eligible projects and SRF funding please visit MassDEP’s SRF Loan Program webpage: http:// www.mass.gov/state-revolving-fund-srf-loan-program

pal. The Trust will allow communities to use that converted principal to replace homeowners’ LSLs. As the Trust increases the loan principal, it will reduce the loan interest accordingly to maintain the same cost to the community.

New this Year:

Communities that have achieved the “Housing Choice” designation under the Commonwealth’s Housing Choice Initiative will be eligible for an interest rate reduction up to .50% from the standard 2% rate offered by the Trust. The Trust is proud to help support the Commonwealth’s efforts in expanding affordable housing, and by providing more subsidy, it will make vital water projects that are needed to support this development more affordable.

MassDEP and the Trust are proud to announce three new programs that will be part of the solicitation, in addition to the standard benefits offered through SRF financing, which are no cost short-term construction loans 2% below market rate interest rates and annual principal forgiveness.

Incentivized Lead Service Line Replacement Program: Communities that receive 2019 project commitments for water main replacement or lead service line (LSL) related projects can replace private portions of LSLs at no additional cost to the community and at no cost to the homeowner. The Trust will fund the homeowner’s costs associated with a LSL replacement by converting future loan interest into current loan princi-

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Asset Management Planning Grants: The Trust will provide up to $2 million in grant funds to qualifying applicants for the preparation of Asset Management Plans (AMP) for existing water infrastructure that includes either one, two, or all three of the following: drinking water, wastewater, and stormwater systems. The Trust will provide a grant award of $150,000 or 60% of eligible project cost, whichever is less. The eligible applicant will provide the remaining amount with both In-Kind Services and a capital contribution.

Housing Choice Loan Program:

For more information about the solicitation please visit MassDEP’s website and for more information on the new programs please visit the Special Programs page of the Massachusetts Clean Water Trust website: http://www.mass.gov/orgs/ massachusetts-clean-water-trust-mcwt n

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Throughout the month of June, the Massachusetts Water Resources Authority mailed its Annual Water Quality Report to every household in its service area.

For 2017, as a system, MWRA again met every federal and state drinking water standard, including lead. The hundreds of thousands of tests taken during the year confirm that the quality of MWRA’s water is excellent.

Since the MWRA was created in 1984, over $2 billion has been invested to rehabilitate and modernize the entire drinking water system.

“From state-of-the-art treatment, to covered storage tanks, to installing new redundant pipelines and replacing older pipes in the communities, we 40

want to make sure the water that flows to your tap is of the highest quality,” said MWRA’s executive director Fred Laskey. “Investing in infrastructure improvements also plays a large part in the economic health of our region.”

The report was distributed to over 850,000 homes in the MWRA service area as required under the federal Safe Drinking Water Act. Communityspecific inserts also provided information about municipal water systems.

The reports were mailed through the end of June.

This report and the reports from the Partially Supplied Communities and the Chicopee Valley Aqueduct Communities are available at www. mwra.com n

“BUY FROM THE ADVERTISERS IN CONSTRUCTION OUTLOOK”

JULY, 2018

Dear Customer, I am pleased to share with you the results of our annual water quality testing.

MWRA takes hundreds of thousands of tests each year to ensure your water is safe and of the highest quality. In 2016, we again met every federal and state drinking water standard.

Lead in drinking water is still a hot topic. System-wide, MWRA has been below the lead action level for many years now, but there are still many lead service lines within our member communities. MWRA has developed a $100 million, zero-interest loan program to help communities remove these lead service lines and communities are starting to use those funds. MWRA has also tested over 14,000 samples from drinking water fixtures in over 300 schools in 35 communities.

We have been working closely with our partners at the Massachusetts Departments of Environmental Protection and Public Health to make every effort to reduce the risk of lead at the tap to protect the health of the children in our service area. More information on lead can be found on pages 4 and 5 of this report.

Also of importance this year is the recent drought that has affected our region.

Even with the rain we have had this spring, it is very important that everyone work together to conserve the water we have. In November 2016, the Quabbin Reservoir dipped into the “Below Normal” range for the first time in over a decade.

While there are no mandatory restrictions and there is still a long way to go before we reach the “Drought Warning” stage, it is important that residents and businesses in our member communities save water wherever they can. Page 3 of this report includes tips on how you can conserve water both indoors and 49. on our website at www.mwra.com. outdoors. More information can also be found We hope you take a few minutes to read this report and learn about your water system. MWRA has great confidence in the water we deliver to your home and we want you to share that confidence. Please contact us if you have any questions or concerns about your water quality, or about any of MWRA’s programs.

Sincerely,

Frederick A. Laskey Executive Director MWRA Board of Directors Matthew A. Beaton, Chairman • John J. Carroll, Vice-Chair • Andrew M. Pappastergion, Secretary • Austin F. Blackmon • Kevin L. Cotter • Paul E. Flanagan • Joseph C. Foti • Brian Peña • Henry F. Vitale • John J. Walsh • Jennifer L. Wolowicz

Quabbin Reservoir

WHY YOUR WATER TASTES GREAT – HIGH QUALITY SOURCE WATER Your water comes from the Quabbin and Wachusett Reservoirs, about 65 and 35 miles west of Boston, respectively. Water from the Ware River can also add to the supply at times.

These pristine reservoirs supply wholesale water to local water departments in 51 communities. The two reservoirs combined supplied about 210 million gallons a day of high quality water to consumers in 2016.

The Quabbin and Wachusett watersheds are naturally protected with over 85% of the watersheds covered in forest and wetlands. To ensure safety, the streams and reservoirs are tested often and patrolled daily by the Department of Conservation and Recreation (DCR).

Rain and snow falling on the watersheds protected land around the reservoirs - flow into streams and then into the reservoirs. This water comes in contact with soil, rock, plants, and other material as it follows its natural path to the reservoirs. While this process helps to clean the water, it can also dissolve and carry very small amounts of material into the reservoir. Minerals from soil and rock do not typically cause problems in47 the water.

But, water can also transport contaminants from human and animal activity. These can include bacteria and pathogens - some of which can cause illness. The test data in this report show that these contaminants are not a problem in your reservoirs' watersheds.

The Department of Environmental Protection (DEP) has prepared a Source Water Assessment Program report for the Quabbin and Wachusett Reservoirs. The DEP report commends DCR and MWRA on the existing source water protection plans, and states that our “watershed protection programs are very successful and greatly reduce the actual risk of contamination.” MWRA follows the report continued on page 43 recommendations to maintain the pristine watershed areas.

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MWRA continued from page 45

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continued on page 49

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DO IT YOUR WAY. Do it when you want. Do it where you want. But do it right. It’s easy, with the Milton CAT QuicKit. • The QuicKit is a special Do-It-Yourself maintenance package, tailored by machine model and by service interval, and shipped directly to where the service needs to be performed. It includes all filters and parts required; engine oil sample kit; “How to” manual; PM checklist; inspection forms and more.

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continued on page 50

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MWRA continued from page 49

City Of Boston Boston Water And Sewer Commission

Public Water Supply # 3035000

Dear Customer: This report contains an annual update on the quality of drinking water supplied to you by the Boston Water and Sewer Commission (BWSC), in partnership with Massachusetts Water Resources Authority (MWRA). Inside this report, there is detailed information on the MWRA’s system, and how the water delivered to Boston exceeds both federal and state quality standards.

In 2017, BWSC won the “New England’s Best Drinking Water Taste Test” at the New England Water Works Association’s (NEWWA) annual conference. Boston’s drinking water, which comes from the Quabbin and Wachusett Reservoirs, has won numerous awards for its excellent quality and taste. This win gives Boston the opportunity to regain its 2014 national “Best of the Best Taste Test” title, competing against cities from the United States, Canada and Mexico at the American Water Works Association’s (AWWA) annual conference this spring. BWSC also received the Gold Recognition Award from the National Association of Clean Water Agencies (NACWA) for our strong record of effective utility management.

To assure quality and regulatory compliance, BWSC maintains a comprehensive program to sample your tap water. The Environmental Protection Agency (EPA) requires that no more than 5% of samples in a month may be positive for total coliform. BWSC and MWRA test over 240 samples each month for total coliform. Two samples during the year tested positive with the highest result of 0.4% in September.

All other and subsequent water samples taken in 2017 were clear of total coliform.

In conformance with the EPA’s Lead and Copper Rule, BWSC tests water quality each year and the Boston lead sampling results have remained below the EPA Lead Action Level of 15 parts per billion (ppb). In 2017, the test results were 9.98 ppb at the 90th percentile which is below the Lead Action Level of 15 ppb. BWSC is proactive in replacing lead service lines, thereby improving overall water quality.

With the health and safety of Boston residents a priority for Mayor Martin J. Walsh, BWSC’s Lead Replacement Incentive Program doubled available financial assistance and now provides a grant of up to $2,000 and increases the period property owners are given to pay any costs exceeding the $2,000 grant from 24 months to 48 months, interest free. For more information related to this program, contact BWSC’s Lead Hotline at (617) 989-7888 or visit BWSC’s website at www.bwsc.org.

Any questions regarding information in this report or about public meetings may be directed to BWSC’s Communications and Community Services Department at (617) 989-7000.

Sincerely,

Henry F. Vitale, CPA Executive Director/ Treasurer

continued on page 51

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MWRA continued from page 50

50.

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Ten Most-Asked Questions About the OSHA Inspection Process What happens when an OSHA inspector shows up at your door? Two former OSHA inspectors tell all.

How exactly does OSHA work? Is the government really out to get every company and to cite every workplace safety violation?

What happens when an OSHA inspector shows up at your door? And can you actually beat an OSHA citation?

Who better to know—and reveal—the secrets of what prompts and occurs during an OSHA inspection than former OSHA officers? At the ASSP 2018 show in San Antonio, Texas, two retired OSHA officers who now work for consulting firm Safety Controls Technology—Nick Walters, formerly regional administrator for Region V (Chicago) and Tom Bielema, formerly Area Director for the Peoria, Ill, OSHA office—shared their field experiences. Walters and Bielema have a combined 47 years of OSHA experience.

1. Why did OSHA pick my company for an inspection?

OSHA follows a number of priorities when determining which facilities to inspect. Those priorities include: • imminent danger • fatalities and catastrophes

JULY, 2018

•

sever injuries (i.e., hospitalization, amputation or loss of an eye)

•

employee complaints

•

referrals, whether from law enforcement, other government agencies or the media

•

programmed inspections, such as National Emphasis Programs (NEP) or Local Emphasis Programs (LEP)

2. Can I ask for a copy of the OSHA complaint?

Yes, absolutely.

3. Can I ask OSHA to get a warrant?

Again, yes, but you should seriously consider whether you really want to raise the idea in OSHA’s continued on page 55

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Safety Corner continued from page 53 mind that you might have something to hide. All OSHA personnel will present their credentials if you have any reason to question the legitimacy of the inspection or the personnel.

4. What documents am I required to provide to the Compliance Officer?

Typical documents requested include the organization’s Federal Employer ID number, OSHA injury and illness logs, written programs, and training records.

5. Can I limit the scope of the inspection?

Yes, particularly to manage and limit the risk of providing OSHA more information than you necessarily ought to. For instance, resist the temptation to offer OSHA a full tour of your facility or campus. You should definitely require the Compliance Officer to follow all workplace safety procedures. Also, let them know about any trade secret areas in your facility.

You should know the scope of the inspection and limit areas of access and travel routes (where appropriate) to only the areas within that scope.

6. How does OSHA decide

whether or not I get a citation and what the penalty amount will be?

Penalties are calculated based on severity as well as probability, with mitigating factors including history and good faith. There are four violation types: •

Willful: a violation that the employer intentionally and knowingly commits or a violation that the employer commits with plain indifference to the law.

OSHA may propose penalties of up to $129,336 for each willful violation.

•

Serious: a violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. There is a mandatory penalty for serious violations which may be up to $12,934.

•

Other-than-serious: a violation that has a direct relationship to safety and health, but probably would not cause death or serious physical harm.

OSHA may propose a penalty of up to $12,934 for each other-than-serious violation.

•

Repeated: a violation that is the same or similar to a previous violation. OSHA may propose penalties of up to $129,336 for each repeated violation. continued on page 57

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Safety Corner continued from page 55 7. Does OSHA have a quota system?

In a word, no.

8. What are my options after I receive a citation?

Yes, particularly if the violation is due to employee misconduct. You must be able to prove all four of these: •

A work rule was violated.

•

The work rule had been properly communicated.

•

Your organization needs to prove it actively monitors compliance to the rules.

•

Disciplinary actions were taken.

Companies have three options: •

Accept the citations, correct the conditions and pay the penalty.

•

Participate in an informal conference.

•

Contest the citations, which must be done in writing within 15 working days of the final order.

9. Should I schedule an informal conference and what should I expect when I go to the OSHA office?

They suggest you should always take the informal conference option, where you should be able to get a better explanation of the violation, the standards cited, what is needed to correct the violation, and other issues.

10. Can we beat an OSHA citation?

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Brian MacFee, Systems Support Corporation

Are You Still Using a Router?

Beware of compromised routers spreading malware. This is according to both Kaspersky Labs and a recently released government report.

U

sing hacked routers to spread malware is nothing new. Security insiders have known about it for years. However, since 2008, the number of instances where routers are being used to push malicious code has been steadily increasing. Researchers are observing marked increases in their use by APTs (Advanced Persistent Threat) around the world.

APTs are nothing new either, although their ranks have been growing in recent years. Many are statesponsored hacking groups with virtually unlimited resources. Some are simply tight-knit groups of hackers banding together under a single banner.

Many people view hackers as lone wolves and that there are millions of lone wolves hacking networks across the globe. Increasingly though, these are becoming minor actors on the world stage. The real threat is now well-organized groups of hackers who can execute highly coordinated globe-spanning attacks and create botnets comprised of tens, or even hundreds of thousands, of compromised computers.

In addition to identifying and calling attention to a little-known attack vector, the recent announcement underscores an important weakness in current cybersecurity thinking. Most people are still laboring under the faulty assumption that they're facing individual hackers operating out of a dark room in someone's basement.

While those types of threats are no doubt present, it's false to assume that's where the biggest danger lies. If you get hacked, it's just as likely (perhaps even more likely) that you're actually facing a wellorganized group who may have more resources at their disposal than your entire IT department. While you're preparing to fight a skirmish, the barbarians JULY, 2018

are coming to your gates with an army. Most people are simply planning to fight the wrong type of battle, and that could prove to be a devastating mistake.

The best way to protect yourself is to replace your Router with a Firewall. A good Firewall does everything a Router does and in addition, it is checking all of the information going in and out of your network, looking for bad sites that are trying to get in to your network, and blocking access to known bad sites and content.

Firewalls can be complicated to set up, so make sure you work with a security professional to install and configure a firewall. Like your antivirus software, there is a subscription for the protection software, and it won’t update if the subscription is not current.

Many sites have expired firewall subscription services, so if you have one make sure yours is up to date.

If you are still using a Router – replace it immediately. If you have a Firewall, work with a professional to make sure it is providing the protection you are expecting. Happy Spring! n

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Client Bulle

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• More Give in the Gift Tax • Don’t Neglect Estate Planning • Moving Your Business to a Low-Tax State

Smart tax, business and planning ideas from y

More give in the gift tax

T

More Give in the Gift Tax

he Tax Cuts and Jobs Act of 2017 increased the federal estate tax exemption to $11.18 million for 2018. That’s per person, so the combined exemption for a married couple can be as much as $22,360,000 worth of assets this year.

The same ceilings apply to the federal gift tax, which offsets the estate tax.

Example 1: Mona McAfee plans to give $20,000 to her son Luke this year. Does that mean that Mona’s estate tax exemption would be reduced to $11,160,000?

Probably not. In addition to the lifetime exemption numbers now in effect, there is also an annual gift tax exclusion.

Due to an ongoing process of inflation adjustment, that exemption increased to $15,000 in 2018. Therefore, in 2018, each person can give up to $15,000 to any number of recipients without incurring gift tax consequences. That’s up from an annual $14,000 exclusion, which was in effect the previous five years.

Here, Mona’s $20,000 would be partially covered by the $15,000 exclusion, so only $5,000 will have gift tax consequences. Mona would have to report a $5,000 taxable gift on IRS Form 709. That $5,000 taxable gift will reduce her curJULY, 2018

Here, M covered $5,000 would h IRS For reduce exempt no othe As the taxes.

rent federal estate and gift tax exemption amount to $11,175,000, assuming no other taxable gifts The Tax Cuts andhave Jobsbeen Act ofmade.

2017 increased As the recipient of the gift, Luke will the federal estate tax exemption to $11.18 pay no taxes. million for 2018. That’s per person, so the combined exemption a married couple Real WorldforRelevance can Most be aspeople muchwon’t as $22,360,000 have estatesworth close of to $11 million, this so this assets year.exercise might seem academic.

Still, the $15,000 annual gift tax exclusion can

havesame practical effects in many situations.

The ceilings apply to the federal It’s giftalso worth noting that paying someone else’s medical tax, which offsets the estate tax. or education bills directly won’t be included in the $15,000 allowance.

Example 1: Mona McAfee plans to give Example 2: Rhonda Cole wants to provide finan$20,000 to her son Luke this year.

Does that cial support for her son Mark’s two children, Ken and mean that Mona’s estate exemption Julie. To do so, Rhonda pays tax tuition bills for Ken and would be reduced to $11,160,000?

Julie directly to their colleges.

The total is $50,000. In addition, Rhonda gives them each $15,000 in 2018 Probably not.

In addition to the lifetime and no other gifts. continuedthere on page exemption numbers now in effect, is 63

also an annual gift tax exclusion. Due to an ongoing process of inflation adjustment, “BUY FROM THE ADVERTISERS IN CONSTRUCTION OUTLOOK” 61 that exemption increased to $15,000 in 2018. Therefore, in 2018, each person

Real w Most p million, Still, the have pr also wo medica include

Examp financia children pays tu to their additio 2018 an

Rhonda this yea Mark’s health c given $

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Financial Management continued from page 61 Rhonda also decides to give Mark $15,000 this year and pays $5,000 worth of bills from Mark’s medical procedures directly to the health care providers.

In total, Rhonda has given $100,000 to her loved ones, reducing her taxable estate by that amount.

However, she hasn’t gone over the $15,000 exclusion for any recipient in 2018, so Rhonda hasn’t made any taxable gifts and will not have to file a gift tax return.

Note that the $15,000 limit presents a handy ceiling for making family gifts each year without the bother and expense of filing a gift tax return. This strategy won’t work as well if Rhonda gives Mark $50,000 so Mark can pay his children’s college bills. Then, Rhonda will have made a taxable gift of this amount and will be required to file Form 709.

Paired Planning Other possibilities exist if a married couple holds assets jointly, perhaps in a bank or brokerage account. A gift from such an account, or a gift of other property, by one spouse can be considered to be divided equally between the two spouses, so the annual gift tax allowance effectively increases to $30,000.

There are two ways to do this. The easy way would be for each spouse to write a separate check for $15,000. If this is not practical, the spouses can get the benefit of a $30,000 annual exclusion by electing “gift splitting” on Form 709. continued on page 65

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Financial Management continued from page 63

T

Don’t Neglect Estate Planning

he article, “More give in the gift tax,” in this issue mentions that the federal estate tax exemption now exceeds $11 million per person. Accordingly, few individuals or married couples will owe this tax. Nevertheless, there is more to successful wealth transfer than reducing or eliminating estate tax. Ideally, you’ll want your assets to pass to the desired recipients with a minimum of turmoil and expense.

To start, you should have a will prepared by an experienced attorney. Your will should not only name specific heirs for specific assets, but also identify an executor who will administer your estate and, if relevant, guardians who will care for any minor children.

Once your will has been prepared,

don’t file it away and forget about it. Review the document periodically, especially after major life events such as births, deaths, marriages, and divorces.

In addition to a will, other efforts should be included in your estate planning.

Beneficiary Designations Many assets will pass to a beneficiary or cobeneficiaries at your death. They include retirement accounts, annuities, and life insurance proceeds, as well as certain bank and investment accounts. The good news is that these assets usually pass without having to go through probate, which might be expensive and time consuming.

The bad news? Generally, a beneficiary designation will override what’s in a will. Keeping beneficiary designations current can be vital. Except when a legal agreement is in place, you probably won’t want assets to pass to an ex-spouse under an old beneficiary form. continued on page 67

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Financial Management continued from page 65 Employer-sponsored defined contribution retirement plans, such as 401(k)s, may be required to pass to a surviving spouse, unless a waiver has been signed. Complying with such rules may save your heirs from an unhappy ending.

Revocable Trusts In recent years, revocable trusts (also known as living trusts) have become popular. As the name indicates, these trusts can be undone, with trust assets reverting to the trust creator, known as the grantor.

Meanwhile, the creator continues to control the assets in the trust and have access to income from such assets.

Assets transferred into such trusts can avoid going through probate at the creator’s death. As mentioned previously, retirement plans and other assets avoid probate anyway. The same is true for assets held as joint tenants with right of survivorship–such property passes to the surviving owners.

Therefore, probate avoidance applies to other types of assets if they are held in a revocable trust.

To get this benefit, assets must be transferred into the trust.

Beyond probate avoidance, revocable trusts also

Did You Know?

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ecognizing tax burdens, the U.S. areas with the highest cost of living are Manhattan, San Francisco, Silicon Valley, and Brooklyn, in that order.

Among 253 locations studied, total taxes as a percentage of gross income range from 25% (Casper, WY) to 45% (Manhattan, NY). In lower cost areas such as Memphis, Oklahoma City, and Cincinnati, gross income under $75,000 could provide a standard of living requiring over $300,000 in Manhattan and more than $200,000 in San Francisco.

Source: Wahrheit Ventures might reduce administrative expenses by helping the trustee to identify and gain control over the assets.

Additionally, a revocable trust can be valuable in case of incapacity. Control of trust assets may pass to a successor trustee or co-trustee.

Example 1: Nancy Hunter creates a revocable trust into which she transfers her bank accounts, investment accounts, and real estate. Nancy names her daughter, Judy Palmer, as successor trustee. continued on page 69

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Financial Management continued from page 67 Now, if Nancy loses the ability to manage the trust assets, Judy will take control.

Before naming someone as successor trustee, consider this question: Is this person able and willing to serve? If not, a corporate co-trustee may be the answer. The latter solution will cost money but could be less expensive than losses caused by an unqualified trustee.

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Modifying an irrevocable trust can require considerable effort and expense, if it can be done at all.

Other Components A thorough estate plan also might include a letter of instruction, durable power of attorney, and health care directives. The lawyer who drafts your will and any trusts you might desire can let you know what else you’ll need for a comprehensive estate plan. continued on page 70

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Example 1: Nancy Hunter creates a revocable trust into which she

With irrevocable trusts, the grantor gives up control of assets transferred

can let you know what else you’ll need for a comprehensive estate plan.

Financial Management continued from page 69

Moving Your Business to a Low-Tax State

Moving your business to a low-tax state chances are they As explained in the April 2018 CPA pay relatively Client Bulletin, the Tax Cuts and Jobs high2018 state and Act of 2017 has put a cap on state s explained in the April Finanlocal income and local tax (SALT) deductions. cial Management, the Tax Cuts and and property tax Beginning with your 2018 tax return, Act you of can 2017 hasbecause put a ofcap on ample if you itemizeJobs deductions, local atax deductions. compensation and countstate no moreand than $10,000 year (SALT) valuable if of SALT deductions for income and 2018living Beginning with your taxinreturn, homes.

These property tax itemize on a singledeductions, or joint tax you you can count employees might return (you can choose to include no more than $10,000 a year of SALT debe thinking of their sales tax instead of income tax). SALT ductions for income and property tax on a own tax-related deductions (other than those for state single ortaxes) jointare tax can choose relocation if you’re and local income notreturn limited (you in a high-tax if theyto relate to income from a tax trade instead or include sales of income area than now. those business or for property held for the (other tax).

SALT deductions production of income.

A

for state and local income taxes) are not

while continuing to live in your current state may

Plan yourself firsta Therefore, payingiflarge amounts Florida if your own residence is still in limited they relate to income from cause problems. Say you have decided to move your of SALT will become more painful Manhattan or Brooklyn.

The idea of moving to a lower tax trade or business or for property held for business from New York to Florida. It may be diffibecause there will be scant relief state could be more appealing now. the production of income. Such a decision should cult to convince New that you have moved your If youYork do decide to personally relocate, from a federal income tax deduction. be based on company to Florida if your own residence is still your claimed change in residence willin amounts The more Therefore, you pay in SALTpaying each year, large careful research.of Manhattan or Brooklyn. be more convincing if you sell your the more the $10,000 ceiling willmore painful because SALT will become home in New York and cut all To start, determine whether you continued onties. pageThat 71 hurt. In addition, if you to make there will beplan scant relief from apersonally federalrelocate. Moving could include getting a new driver’s want to a profitable sale of your company income tax deduction. Theyour more you to pay license, voter registration, local bank business another state while within the foreseeable future, the state account, and so on. You might have continuing to live in your current in SALT each year, the more the $10,000 income tax on your sale could be to put young children into school state may cause problems.

Say you substantial, yet not ceiling willdeductible. hurt. In addition, if you plan to within the new state. If you choose to have decided to move your business make a profitable sale of your company Moreover, the new tax law’s SALT keep other New YorkKX080-4S real estate after from New York to Florida. It may be Kubota within foreseeable future, the to state in- New York that cap could havethe a ripple effect on your moving, it may be costly.

New York will difficult convince 66.6 HP Kubota Diesel come tax onkey your sale could substancompany.

If you have employees, seek to tax rents on property within its yoube have moved your company to 19,225 lbs. Operating Weight

tial, yet not deductible.

Moreover, the new tax law’s SALT cap could have a ripple effect on your company. If you have key employees, chances are they pay relatively high state and local income and property tax because of ample compensation and living in valuable homes. These employees might be thinking of their own taxrelated relocation if you’re in a high-tax area now.

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To start, determine whether you want to personally relocate. Moving your business to another state

70

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Financial Management continued from page 70 If you do decide to personally relocate, your claimed change in residence will be more convincing if you sell your home in New York and cut all ties. That could include getting a new driver’s license, voter registration, local bank account, and so on. You might have to put young children into school within the new state. If you choose to keep other New York real estate after moving, it may be costly.

New York will seek to tax rents on property within its borders, and the property, if still owned at death, will be subject to New York state estate tax.

Besides comparing tax burdens, look at other major costs, as well. Will home and auto insurance be higher or lower after a move? How will health insurance be affected?

If your spouse works outside your company, will there be job opportunities in the new area? Determine if the total savings will justify the disruption that a move will create.

Getting Down to Business Once you’ve decided that a personal move would be cost effective, analyze what a business move would entail. If your business is very small, perhaps

just yourself and an assistant, relocating may be fairly straightforward. As long as it will pay off for your family, moving to save money paid for state and local tax could make sense.

With larger companies, though, more factors must be considered. You might have to deal with relinquishing office space and finding suitable new business premises. Other decisions could involve dealing with business property, offering employees help to relocate, providing severance pay to those who will be left behind, obtaining various licenses and registrations in the new jurisdiction, and so on. The sooner you move and the longer you operate in the low-tax state, the greater your chance of avoiding tax from your old state on a sale of the company.

The bottom line is that moving a business may be challenging, but it is doable. Such relocation is implemented all the time by many types of companies. The new tax law, with its limit on SALT deductions, may be the proverbial final straw that gets you going. Your accountant can calculate the overall cost savings from such a move and help you deal with the regulatory requirements that might arise.

Reprinted from the CPA Client Bulletin. n

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Advertisers’ Index ATS Equipment, Inc. ................................................................... 36 Aggregate Industries - N.E. Region.............................................. 7 Allied Bolt & Screw Corp.............................................................. 58 American Shoring, Inc...............................................Ins. Back Cvr. B2W Software, Inc....................................................................... 55 BakerCorp.................................................................................... 54 Boro Sand & Stone Corp............................................................. 60 Brennan Consulting..................................................................... 66 Dennis K. 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L. Edwards, Inc........................................................................ 58 Equipment4Rent.......................................................................... 69 Ferguson Waterworks.................................................................. 65 Genalco, Inc................................................................................... 9 Gorilla Hydraulic Breakers........................................................... 54 L. Guerini Group, Inc................................................................... 60 HD Supply Const. & Industrial AH Harris/White Cap................. 22 Hinckley Allen LLP......................................................................... 8 Industrial Safety & Rescue.......................................................... 64 JESCO......................................................................................... 68 P. J. Keating Company................................................................. 12 P. A. 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