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Utility & Transportation

90 Years

SUCCESS THROUGH SERVICE SINCE 1927

Of Success

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contracTOR

Celebrating

de nsi

december 2017

:

In ent pm Years i u q 0 E 5 r es rte Ha ebrat l Ce ness i Bus

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president’s message

From the desk of: tom hardell

2

018 is around the corner, and with the New Year comes a new administration in Trenton. After eight years of Governor Chris Christie, we will now have Governor-Elect Phil Murphy as our State’s next Chief Executive. The good news is that one of the main planks of Murphy’s campaign platform was investment in our transportation network. However, in order to deliver on that promise, he will be required to deal with many obstacles and issues at our State transportation agencies. UTCA will continue to be New Jersey’s leading voice for infrastructure investment, and stands ready to assist the Governor in our areas of subject matter expertise. One particular concern to the industry that we hope Governor-Elect Murphy will focus on, is the rate at which State transportation agencies have bid work since the renewal of the Transportation Trust Fund (TTF). Under the leadership of Commissioner Rick Hammer, NJDOT was able to award almost $1.2 billion in contracts last fiscal year, despite the unnecessary three-month shutdown of TTF funded projects last fall. However, since July 1, the Department has awarded less than $200 million in contracts and NJ TRANSIT has awarded a paltry $28 million. Our industry worked too hard carrying the TTF renewal over the finish line to now have the work trickle out at such a slow pace. In order to provide greater stability to the industry, our Association has been working with NJDOT and NJT to ensure a robust finish to the fiscal year and more consistent lettings in future fiscal years. Another focus of the Association in relation to the TTF renewal is tackling the doubling of Local Aid funding. It is not

helpful to our infrastructure, nor the economy, to allocate an additional $200 million annually to County and Municipal projects if the money will not be spent in a timely manner. In a recent meeting with Commissioner Hammer, the Association requested that the Department work with the industry to ensure that Local Aid funding is actually hitting the street and improving local infrastructure, not sitting in bank accounts. The Murphy administration will also need to address the need for major improvements to our State’s drinking water, wastewater, and stormwater systems. Whether through efficiencies, adopting best practices, or identifying more reliable and dedicated funding, the new administration will be tasked with developing a comprehensive plan backed by a predictable way to fund it. Finally, I would like to congratulate Linda Gardner and everyone at the Brent Material Company on celebrating the impressive milestone of 90 years in business. Linda is doing an incredible job following in the footsteps of her grandfather Larry and father Dick, both of whom were giants in our industry. I would also like to commend Harter Equipment on celebrating 50 years in business, and offer my best wishes for the next 50 to come. If you have any comments or suggestions please feel free to contact me at thardellutca@ghcci.com.

Merry Christmas and Happy New Year! Best regards,

Tom Hardell

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Cover 52

76

87

100

CONTENTS

Cover story 52 brent material

celebrates 90 years in business

DEPARTMENTS

FEATURES

2 9 19 27 35 55 59 67 73

76 harter equipment celebrates 50 years in business

President’s Message Financial Overview Legal Dig Accounting Corner Legislative News Safety Perspective Labor Relations The pipeline Engineering Exchange

NEWS 81 identity theft protection 85 csg welcomes ron tobia 87 J. fletcher creamer & son opens leadership training center 90 unsigned work change directive? 95 how to build a sustainable company culture 97 the importance of contractor’s equipment insurance 100 utca’s year in review Published Bimonthly During 2017

1670 Route 34 North Farmingdale, NJ 07727 PO Box 728 Allenwood, NJ 08720 PH: (732) 292-4300 FAX: (732) 292-4310 www.utcanj.org

Publisher: Robert A. Briant, Jr. Editor: Helene Nasdeo Editorial Contributors: Anthony Attanasio, Zoe Baldwin, Dan Neville, Dan Kennedy Advertising Manager: Helene Nasdeo Photographer: Image Up Cover Photo: Image Up Production/Graphics: Helene Nasdeo, Lauren Hagan Circulation: Helene Nasdeo Printed By: American Plus Printers Affiliations: ARTBA, Clean Water Construction Coalition, Water Infrastructure Network UTILITY AND TRANSPORTATION CONTRACTOR (ISSN 0192-4843) is published six times a year by the Utility and Transportation Contractors Association of New Jersey, 1670 Highway 34 North, Farmingdale, NJ 07727. Periodical postage paid at Farmingdale, NJ and additional mailing offices. POSTMASTER: Send address changes to UTILITY AND TRANSPORTATION CONTRACTOR, PO Box 728, Allenwood, NJ 08720.

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By: john higgins, patterson smith associates

O

n October 19, 2017, the Internal Revenue Service released Notice 2017-64, announcing cost-of-living adjustments (COLAs) that affect contribution limits for retirement plans in 2018. The list below, although not exhaustive, highlights key changes that retirement plan sponsors should be aware of, as well as some limitations that remain unchanged from 2017: • The elective deferral limit is increasing from $18,000 to $18,500. • The aggregate contribution limit for defined contribution plans is increasing from $54,000 to $55,000. • The annual compensation limit used to calculate contributions is increasing from $270,000 to $275,000.

• Catch up contributions. Remind participants age 50 or older that they can contribute up to $24,500 into their 401(k) account in 2018. • ROTH 401(k) vs. ROTH IRA. Participants should be reminded that they are eligible to participate in ROTH 401(k) regardless of their income. ROTH 401(k) deferrals are not subject to the ROTH IRA Modified Adjusted Gross Income (MAGI) limits. • Claim the saver’s credit. Participants with adjusted gross below $31,000 for individuals, $46,500 for heads of household and $62,000 for couples in 2017 can contribute to a 401(k) or IRA, and may be able to qualify for the saver’s credit.

Financial overview

irs benefit plan limits for 2018

• Get ready for 2018. Participants receiving a year-end bonus may want to look into making a one-time contribution to their 401(k). Redirecting a portion of it to a • The dollar limit used in the retirement account may set definition of “key employee” them up for a lower tax bill. in a top-heavy retirement For those receiving a year plan remains unchanged at end raise, may want to con$175,000. sider setting their contribu1Employee deferrals to all 401(k) and 403(b) plans must be aggregated for purposes of this limit. tion amount a little higher • The dollar limit used in the 2Contributors must be age 50 or older during the calendar year. 3All compensation from a single employer (including all members of a controlled group) must be aggregated for purposes of this for 2018. Just 1% more may definition of “highly com- limit. make a difference in retirepensated employee” remains ment savings. unchanged at $120,000. • The limitation on the annual benefit under a defined benefit plan is increasing from $215,000 to $220,000.

• The catch-up contribution limit for employees age 50 or older remains unchanged at $6,000.

The following are a few year-end tips for plan sponsor to consider regarding the 401(k) plan design:

The following are a few helpful tips for 401(k) plan sponsors and administrators to share with their 401(k) plan participants:

• Consider adding a ROTH deferral election. ROTH contributions are taxed upfront, but they accumulate tax-free. Generally, both the contributions and all accumulated earnings are free from Federal income tax when they are distributed.

• Pre-tax & ROTH contributions. The $18,500 401(k) deferral limit for 2018 includes both pre-tax and ROTH 401(k) contributions (plan permitting).

• Testing difficulties. If a plan has highly compensated employees

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Financial overview

that are looking to maximize their deferrals but cannot because of failed non-discrimination testing, consider adding a Safe Harbor provision. By adding a certain minimum employer contribution and 100% vesting the plan can eliminate nondiscrimination testing of employee deferral and employer match contributions. • Top Heavy Plans. Safe Harbor contributions can also be beneficial to plans that are Top Heavy. In addition to eliminating

nondiscrimination testing, a Safe Harbor contribution may also satisfy required Top Heavy minimum contributions. This material has been provided for general informational purposes only and does not constitute either tax or legal advice. Investors should consult a tax preparer, professional tax advisor, and/or a lawyer.

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By: paul t. fader & adrienne l. isacoff, florio, perrucci, steinhardt & fader, llc

W

hether a public agency may engage in post-bid negotiations with bidders depends on the statute under which the bids have been solicited. Some statutory schemes require that bids be awarded to the lowest responsible bidder. Others allow the public entity to make the award based on whether it is in the “best interest” of the agency, even if it is not the lowest bid. Those two models generally frame whether post-bid negotiations are permitted. Under the Local Public Contracts Law, (“LPCL,” N.J.S.A. 40A:111 et seq.,) which governs contracts let by counties and municipalities, bids the cost of which exceed the bid threshold must be awarded to the lowest responsible bidder, with certain defined exceptions that are not applicable to construction contracts. N.J.S.A. 40A:11-4. Under these circumstances, the governmental unit must undertake an analysis to determine whether the bid meets the material elements of the bid specifications. The bidder must be “responsive” – defined as submitting a bid that is conforming in all material respects to the bid specifications and legal requirements. The bidder must also be “responsible” – defined as able to complete the contract in accordance with its requirements, including experience, operating and financial capacity and the like. If the bidder meets both criteria and has submitted the low bid, the municipality has no discretion to make the award to any other bidder, even if it prefers another bidder based

v. Borough of Island Heights, 138 N.J. 307, 313 (1994). Bids awarded for construction projects by local boards of education must be awarded in accordance with the Public School Contracts Law, N.J.S.A. 18A:18A-1 et seq., which uses the same bid selection methodology as those awarded under the LPCL.

Legal Dig

may a public agency engage in post-bid negotiations on a public project? it depends!

Like municipal contracting, many State agencies that have statutes governing the bid and award process for construction projects also mandate award to the lowest responsive and responsible bidder and do not allow for any post-bid negotiation: New Jersey Department of Transportation, N.J.S.A. 27:7-30; New Jersey Turnpike Authority, N.J.S.A. 27:23-6.1; New Jersey Transit Corporation, N.J.S.A. 27:25-11.c(2); New Jersey Department of the Treasury, Division of Property Maintenance and Construction (“DPMC”), N.J.S.A. 52:32-2. However, the statutes governing the bid and award process of some State agencies allow the award to be based on “price and other factors.” The State contracting unit under those statutory provisions has the discretion to consider factors such as the following, as identified by the Schools Development Authority, N.J.S.A. 52:18A-243: • the experience and qualifications of the contractor or contractors and their key personnel in projects of similar type and complexity; • the performance of the contractor or contractors on prior contracts with the development authority, the State, or districts; • the experience and capability of the contractor or contractors and their key personnel in respect to any special technologies, techniques or expertise that the project may require; • the contractor’s understanding of the means and methods needed to complete the project on time and within budget; • the timetable to complete the project; • the contractor’s plan for quality assurance and control;

on prior experience. As noted by our State’s highest court, ...  “The long-standing judicial policy in construing cases governed by the Local Public Contracts Law . . . has been to curtail the discretion of local authorities by demanding strict compliance with public bidding guidelines.” Meadowbrook Carting Co., Inc.

• the contractor’s demonstrated experience in regard to affirmative action; and other similar types of factors. The Department of the Treasury, Division of Purchase and Property (“DPP”), affords similar discretion that allows the State Treasurer or Director of DPP not only to take into account factors other than price, but expressly allows for post-bid negotia-

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Legal Dig

tion of bid terms: . . . for any procurement, the State Treasurer or the director may negotiate with bidders the final terms and conditions of any procurement, including price; such ability to so negotiate must be expressly set forth in the applicable invitation to bid and such bids shall not be publicly accessible until after negotiations have been completed and the notice of intent to award the contract has been issued; (g) award shall be made with reasonable promptness, after negotiation with bidders where authorized, by written or electronic notice to that responsible bidder whose bid, conforming to the invitation for bids, will be most advantageous to the State, price and other factors considered . . . . N.J.S.A. 52:34-12. Note the distinct difference in procurement methodology between DPP – typically used for purchase of products and services (e.g., computer systems), which allows for post-bid negotiations – and DPMC – used for construction and renovation of State buildings, which mandates award to the lowest responsible bidder, even though they are both within the Department of the Treasury. The same type of distinction is present in the statute governing NJ Transit, which requires award to the lowest bidder for construction projects, but allows award based on price and other factors for non-construction projects such as procurements of buses.

The statutory provision governing DPP procurements results in some surprising bidding circumstances. When a State agency does not have a bid and award protocol set forth in any discrete statutory provision, it is governed by the above-cited provisions that cover DPP procurement. Such is the case with New Jersey Department of Environmental Protection projects such as landfills. Although the work involved in landfill projects is much more akin to sitework that may be a part of a NJDOT project than it is to a goods and services contract procured by DPP, the NJDEP contract may be awarded based on price and other factors and allow for post-bid negotiations. Such a result may make sense when the bid is one for a design-build contract, where the input from the bidder should be a significant factor in determining what bid would be in the best interest of the State. But it is puzzling for that methodology to be used when the work must be performed in accordance with the specifications determined by NJDEP. Best Practices Bidders need to be mindful of what statutory provision is applicable to the project on which they are bidding. The differing bid and award mechanisms may affect both how you prepare your bid and whether you have an opportunity to protest award to a competitor.

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tax reform process gathers serious steam By: paul s. helderman, cpa, mst, withumsmith+brown Senate Bill The Senate bill retains a seven-bracket system, but lowers the rates to 10%, 12%, 22.5%, 25%, 32.5%, 35%, and a top rate of 38.5%. Here is a comparison of the three possibilities, first, for single taxpayers:

Accounting Corner

B

ack in February in this column, we were reading about President Trump’s proposals for fixing our “so-called” broken tax code. Well, a lot of water has found its way under the proverbial bridge since then. In September, we were provided more details on the vision for tax reform when the Uniformed Framework for Fixing Our Broken Tax Code (the “Framework”) was released. The four principles for tax reform espoused in the Framework included 1) make the tax code simple, fair and easy to understand; 2) give American workers a pay raise by allowing them to keep more of their hard-earned paychecks; 3) make America the jobs magnet of the world by leveling the playing field for American businesses and workers; and 4) bring back trillions of dollars that are currently kept offshore to reinvest in the American economy. The Framework’s worthy goals in achieving tax reform included 1) provide tax relief for middle-class families; 2) the simplicity of “postcard” tax filing for the vast majority of Americans;3) tax relief for businesses, especially small businesses; 3) ending incentives to ship jobs, capital, and tax revenue overseas; and 4) broadening the tax base and providing greater fairness for all Americans by closing special interest tax breaks and loopholes. The Framework was to serve as the “template” for the congressional tax-writing committees to develop legislation that considers all of the above. Well, as of mid-November, when this article was drafted, we’ve seen inputs from both the House and Senate tax writers on how best to implement the Framework. The rest of our discussion will focus on highlights of the latest House and Senate tax reform proposals that could significantly impact you and your business. You’ll begin to appreciate that the guiding principle of “simple, fair and easy to understand” might not have gotten all the attention it deserved. Here we go….

And here are the rates for married taxpayers:

Individual Tax Rates House Bill HR 1 proposed four brackets: 12%, 25%, 35% and 39.6%. Taxpayers earning more than $1 million (if single, $1.2 million if married) would also be required to “claw back” the benefit of the 12% bracket at a 39.6% rate, increasing their tax by the excess of the 39.6% rate over the 12% rate on the first $45,000 of income (if single) or $90,000 (if married). This amounts to an increase in tax of $12,420 for single taxpayers and $24,840 for married, and an effective top marginal rate of 45.6%.

Comments Interesting that the Senate Republicans, who have long embraced the misguided notion that fewer brackets equates to a significant

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Accounting Corner

shift towards simplicity, chose to retain seven brackets. You will also note that relative to the House bill, the Senate proposal would force some lower-income ($38,700 - $45,000) and middle-income ($170,000-$200,000) taxpayers into higher marginal rates (12% versus 22.5% and 25% versus 32.5%, respectively). The same is true for married taxpayers on the low incomeside, where those earning between $77,400 and $90,000 would pay a top rate of 12% under the House bill but 22.5% under the Senate proposal. Also, under the Senate bill, the lower tax rates and most other individual changes sunset after December 31, 2025.

more accurately represented as 23.8%. Standard Deduction House Bill HR 1 increases the standard deduction to $12,000 (if single, $24,000 if married). Senate Bill

Capital Gain/Dividend Rates

The Senate bill also doubles the standard deduction to $12,000 (if single, $24,000 if married).

House Bill

Personal Exemptions

HR 1 preserves the 0%, 15% and 20% tax brackets, and aligns those rates with the new brackets.

House Bill

Senate Bill The Senate proposal also preserves the same rates as under current law, and aligns those rates with the current law brackets, resulting in no change for taxpayers relative to current law. First, single taxpayers:

Personal exemptions would be eliminated. To soften the blow a bit, however, the Child Tax Credit will be increased from $1,000 to $1,600, though the refundable amount will not rise. In addition, a new $300 credit will be allowable for non-child dependents, and for the next five years, a “family flexibility” credit of $300 will be allowed for each spouse. In addition, the income limits at which a taxpayer starts to lose the child tax credit will be increased from $75,000 to $115,000 for single taxpayers and $110,000 to $230,000 for married taxpayers. Senate Bill

Then, married:

The Senate bill would also eliminate personal exemptions. As was the case with HR 1, the Senate bill will attempt to ease the pain on families by increasing the Child Tax Credit to $2,000, a $400 increase over the House proposal but a $1000 rise when compared to current law. The Senate proposal provides protection for the upper reaches of the middle class that is missing from the House bill, however, by increasing the income levels at which phase-out of the credit begins to $250,000 (if single, $500,000 if married). This will enable many more taxpayers to make up for lost personal exemptions with the enhanced CTC as compared to HR 1. That’s the good news; the bad news, however, is that unlike the House bill, the Senate does not offer any additional credit for a taxpayer, his or her spouse, and any non-dependent children. To illustrate, a married couple earning $100,000 and claiming three dependents (two children and one elderly parent), would be entitled to the following credits under the House and Senate bills:

Comments It’s worth noting that the 3.8% net investment income tax that was added to the law as part of Obamacare remains in place. Thus, the top rate on long-term capital gains and dividends is

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Itemized Deductions

The House and Senate Bills

The House and Senate Bills

The alternative minimum tax is eliminated, however, this change also sunsets after December 31, 2025 under the Senate bill.

Perhaps it’s best to compare the House and Senate bills treatment of itemized deductions in table form:

Corporate Tax Rates The House Bill and Senate Bills Corporate income is taxed at a top rate of 20%, however, under the Senate bill the rate cut doesn’t take effect until 2019. Treatment of Other Corporate/Business Items Let’s look at this in table form:

Accounting Corner

Comment Credit is due both the House and Senate for taking a hard line in eliminating the deduction for state and local income taxes; it will be hugely unpopular in high-tax states like New York, New Jersey and California, but it’s a necessary evil if either bill is going to hit its $1.5 trillion target of net tax cuts. Likely, this will serve as the biggest point of contention in the Senate -- as several GOP leaders from the aforementioned high-tax states have already called the provision a nonstarter – and it will be interesting to see who backs down first. Pass-Through Business Income Tax Rates House Bill HR 1 would apply a top rate of 25% on the income of S corporation shareholders, partners in partnerships, and sole proprietors. There are several caveats, however: 1. Only passive investors in a business are entitled to the 25% rate on all their income from the business. 2. For any investor who “materially participates,” the default setting is that only 30% of the income is attributable to the capital of the business and subject to the 25% rate. The remainder would be taxed at individual rates as high as 39.6%, just like under current law. 3. Owners of service businesses -- like accountants and lawyers -- begin with the presumption that ZERO percent of their income is deserving of the 25% rate. Senate Bill Under the Senate proposal, owners of sole proprietorships, S corporations and partnerships may take a deduction of up to 17.4% of their “qualified business income.” This deduction is limited to 50% of the wages paid to the owner by the business. This provision has the effect of reducing the top rate on flow-through income from 39.6% to 33%. This change also sunsets after December 31, 2025. Alternative Minimum Tax

Comments Under the House proposal 100% expensing would not apply to any personal property used in a “ real property trade or business” which includes any real property development, redevelopment, construction, reconstruction, acquisition, conversion, rental, operation, management, leasing or brokerage trade or business. However, the good news is that the provision that disallows a deduction for net interest expense in excess of 30% of a business’s adjusted taxable income would not apply to a real property trade or business. The Senate proposal includes a similar provision for 100% expensing but is silent as to any limitation of its application to a real property trade or business. Also, the Senate proposal digresses from the House with respect to the application of the exception to the interest deduction limitation in that the exception must be elected by the taxpayer with the consequence of having to use the alternative depreciation system (“ADS”) method versus the more favorable MACRS method for depreciating any of its nonresidential real property, residential rental property, and qualified improvement property. The Senate bill does however provide a depreciation break the House bill does not: the depreciable life of residential and nonresidential real property would be reduced from 27.5 and 39 years, respectively, to 25.

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International Tax

What happens next?

House Bill

The Senate bill had a bit of a problem. For the GOP to use the reconciliation process and pass its vision of tax reform without a single vote from a Democratic Senator, the bill needed to meet two standards:

HR 1 would move us from the current deferral system to a territorial system by providing a 100% dividends received deduction to U.S. corporations when amounts are repatriated from foreign subsidiaries. To prevent a windfall to those corporations who currently have cash overseas that has yet to be taxed, however, a one-time “deemed repatriation” would be imposed, under which the U.S. corporation would pay tax of 14% on any cash stashed overseas and 7% on any illiquid assets.

Accounting Corner

Senate Bill The Senate bill would also shift to a territorial regime, while embracing the concept of a deemed repatriation, only with rates of 10% on cash and 5% on illiquid assets. Comments It’s worth noting that the House bill originally started with repatriation rates of 12% and 5% before it became necessary to raise those rates to the present 14% and 7% in order generate additional revenue to make the bill fit within the budgeted $1.5 trillion in tax cuts.

1. The total tax cuts over the first 10 years can’t exceed $1.5 trillion, and 2. The bill cannot add to the budget deficit beyond the ten-year window. As initially constructed, the Senate bill met the first standard, but failed the second, as deficits are rising during the out years of the budget window. Thus, changes were needed to be made during the Senate Committee on Finance’s markup or else 60 votes were required out of the Senate, including at least 8 from Democratic Senators. Therefore, during the markup the idea of having many of the individual changes sunset after December 31, 2025 was borne. So much for simplicity! Be sure keep an eye out in the coming months to see where tax reform ultimately lands.

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legislative update By: zoe baldwin, director of government relations

#

WINNING Election Day 2017 was a pivotal day for infrastructure in the Garden State, as every legislator who voted for TTF was re-elected, and two of the most vocal gas tax opponents lost their seats.

Elsewhere, in Monmouth County’s LD11, Democratic challenger Vin Gopal won the upset of the night, defeating the fiercely anti-gas tax incumbent, GOP Senator Jen Beck. The 23-cent gas tax increase and infrastructure investment featured heavily in the battleground district, as Beck unsuccessfully attempted to weaponize the issue. Widely considered to be the state’s most competitive race, the 7-point victory brings with it proof that Beck’s over-simplified, anti-investment mantra couldn’t fool voters.

SAILIN’ ON The Murphy team will now spend the rest of 2017 working with transition teams, selecting cabinet members, and developing more detailed plans to deliver on campaign promises. UTCA is proud to have two seats at the transition table, as Executive Director Anthony Attanasio has been named to the Transportation and Infrastructure Committee, and Director of

So far, Murphy has committed to an overhaul of NJ Transit to tackle the fallout from years of underfunding that have led to serious safety issues, incessant delays, and an annual raid on capital funds to cover operating costs. Similarly, he has been supportive of plans to improve our drinking water, wastewater, and storm water systems, recognizing the need to address mounting public health and environmental concerns. UTCA looks forward to continuing our work with the incoming administration on these and other industry concerns. WHERE THE RUBBER MEETS THE ROAD Policy goals set during the campaign and transition processes are significant, but the real power lays with the Governor-Elect’s selection of state commissioners and directors, who will ultimately be responsible for implementation. As of this writing, the only cabinet position filled is the Commissioner of the Department of Community Affairs, which will be held by Lieutenant Governor Sheila Oliver. BOARDWALK AIRPORT EMPIRE In an effort to diversify Atlantic City’s struggling economy, the state legislature is looking to build on the area’s aviation expertise by incentivizing development around the airport and related research centers. South Jersey legislators and chambers of commerce are looking to pass legislation during this lame-duck session that would designate the area within a 1-mile radius of the airport as a Garden State Growth Zone. If the legislation passes, firms building new facilities within the zone may become eligible to receive credits against corporate business tax to the tune of 40% of the cost of construction. Companies locating outside of the Garden State Growth Zone could receive tax credits for only 20% of their construction costs. Elected officials in the area have also renewed calls for infrastructure investment in the Zone, including a rail link from the airport to the existing Atlantic City rail line. In addition to the Atlantic City Airport, the new Zone would include the Stockton Aviation Research and Technology Park, and the FAA William J. Hughes Technical Center.

Legislative News

Democrat Phil Murphy has been elected Governor of New Jersey after defeating Republican Lieutenant Governor Kim Guadagno. Murphy’s pro-infrastructure, pro-transit campaign claimed a double-digit victory over incumbent Guadagno, who consistently railed against the dedication of the gas tax during both the primary and the general elections, as well as in her official capacity in the Governor’s office. Guadagno will be succeeded as Lieutenant Governor by Assemblywoman Sheila Oliver, an Essex County legislator who served as Speaker of the Assembly from 2010 to 2014.

Government Affairs, Zoe Baldwin, will serve on the Environment and Energy Committee.

IN EIT WE TRUST During the first session of the lame duck session, the Senate Environment Committee advanced a UTCA-requested amendment that will provide the New Jersey Environmental Infrastructure Trust with the administrative authorization it needs to begin funding local transportation projects. Within the TTF reauthorization was language developed

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Legislative News

by UTCA that enabled the Trust to expand the NJEIT finance model to local transportation projects. However, an oversight in the appropriations bill failed to authorize the Trust to expend the administrative funding needed to pay for the staff, vendors, and administrative costs needed to run this expanded program. Once adopted, it is anticipated that the transportation bank will be able to provide approximately $200 million annually for local projects. New Jersey communities are now one step closer to a new option for local transportation funding LEAVING ON A JET PLANE VIA THE PATH TRAIN While not quite legislative, we thought it noteworthy that Port Authority is moving ahead with plans to expand PATH service beyond the existing terminus in Newark Penn Station by extending the line to Newark Liberty Airport. The proposed extension would give New York riders a one-seat ride to Newark Liberty, in addition to adding a stop in Newark’s South Ward. Current plans for the $1.7 billion project call for the construction of a multimodal station that include staging areas for buses and taxis, pick-up and drop-off lanes, a parking facility, and roadway and sidewalk connections to Frelinghuysen Avenue. Port Authority held two public hearings on the project after including in the 10-year capital plan approved by Port Authority earlier this year. Construction is expected to begin in 2020, and be completed by 2026. ON THE HILL PATIENCE IS A VIRTUE? In mid-November, GOP members of the House Transportation Committee gathered to talk infrastructure amidst confusion about whether they were looking for $200 billion in public dollars or more. Members discussed

several ideas for financing, from freight-only toll roads to TIFIA loans, but said they still lack definition on particulars necessary to move forward. Raising the gas tax was not on the table, but one recurring theme was revenue anticipated from the tax overhaul. These circular conversations are likely to continue into the new year, with members looking to quantify elusive numbers like “economic growth created by the tax reform,” or savings from the repeal of the Affordable Care Act’s individual mandate. Also in flux and slowing congressional conversations is the scope of the nation’s needs. According to Transportation Secretary Elaine Chao, the President’s vision encompasses more than roads, ports, and aviation, noting several times that the projected $1 trillion plan would likely include water systems, energy, broadband infrastructure, and veterans hospitals. We sincerely hope that you’ll consider supporting the UTCA PAC, CONSTRUCTORS FOR GOOD GOVERNMENT UTCA continues to be the leading voice for infrastructure construction in Trenton and Washington DC. Whether it is providing expert testimony before business and legislative groups or positively effecting the legislative process, UTCA stands alone in its record of achievement for our industry. This success is only possible with your support of the Association, and more importantly, with your support of the industry’s PAC: Constructors for Good Government. Please consider contributing in 2017 as UTCA will continue to be very active in the upcoming legislative session, and a robust PAC only strengthens our voice. Thank you for your continued support.

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brent Material Cover Story

celebrates 90 years in business By: anthony attanasio, executive director

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ver the last 90 years, Brent Material Company and the Gardner name have become synonymous with hard work and hands-on follow-through for their customers. The 90th anniversary of New Jersey’s largest stocking distributor of construction materials for water works, sanitary sewer, storm drainage and erosion control systems has given President and CEO Linda Gardner a chance to reflect on her family’s business and look ahead to the company’s success in the future. The third generation to run the company, which was started by her grandfather Larry Gardner in 1927, Linda goes into each day remembering the many lessons her father, Dick, taught her over the 28 years she spent with him at Brent Material Company. “Do the right thing,” Linda says was her father’s biggest lesson to her. He would say, ‘Always do the right thing as you have to look yourself in the mirror every day. Don’t cut corners looking to save costs or for short-term gain; Build trusted relationships; Look at the big picture,” he taught her. While in high school, she worked for Brent during summers, handling administrative duties for her dad, but when she left for the University of Colorado Boulder, she had no idea that she’d be coming back to build a career in the family business. After graduating college, Linda began working for a small busi-

Left side, front to back Linda Gardner, Cindy Shupp, Bonnie Roselle, Joe Lentine, Maurice Gooch, Jay Grieder. Right side, front to back, Rob Herrman, Peter Napolitano, Kevin Czerniawski, Tom Laucik, Fred DeZao

ness in Colorado. At one point, she began receiving her father’s assistance on implementing a computer system for her employer. That collaboration gave her new insight into her father’s business acumen and intelligence. Not long after, her dad wanted to talk to her about coming Back East and working for him. At Dick’s suggestion, the two met for dinner in Texas, “neutral territory.” By the end of dinner, with the promise that she could continue to pursue her passion of competitive horseback riding while working at Brent, Linda was ready to return to New Jersey. “I thought ‘Why should I work for someone who is not as smart as my dad?” That was the incentive, to come back and really learn from him,” says Gardner, who worked closely with her dad from 1983 until he unexpectedly died in January 2011. “My father was truly my best friend, my mentor and my boss. He was an icon in the industry.” She started in outside sales – sent out with little training but with confidence that she could figure things out as she went along. After many years on the road, she began working more and more with her father in the office, handling vendors, contracts and negotiations. Dick didn’t spend his time looking over Linda’s shoulder or questioning her decisions. “He never micromanaged me, he just always supported me,” she says.

Pictured left to right are Leon Grove, Linda Gardner, Paul Newman, Anthony Madonia, Joseph Louglin, Jonathon Pizor, Wiliam Fiorenzo.

But he never groomed her to take over. There was just an assumption by everyone that Dick Gardner, this larger than life figure according to his daughter, would always be there at Brent.

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“When he passed there was concern that would be the end of Brent Material,” said Linda. Within a short period of time Linda sent a letter to staff, vendors and customers assuring them of her commitment to not only continue the business but keep running the business in the same manor that her father and grandfather had done in the past.

Brent Material Company is a certified WBE in New Jersey, New York State, New York City, Port Authority NY/NJ and Delaware. It is also certified federally as a member of the Women’s Business Enterprise National Council (WBENC), a SBE in New Jersey and is a member of the Women Owned Small Business (WOSB) Federal Contracting Program.

Linda knows a company does not succeed on the efforts of one person alone. She is quick to point out that all of this success would not be possible without a top-notch staff and reliable vendors. She proudly notes the vital “It’s a big responsibility,” she says. “It’s with contributions of her sales teams – the inside you all the time. You’re carrying that torch of sales team Fred Dezao, Joe Lentine, Bonnie the morals and values that they had throughRoselle and Cindy Shupp and her outside out the years.” sales team Kevin Czerniawski, Bill Fiorenzo, While Brent Material Company is Larry and Jay Grieder, Rob Herrman and Tom Laucik. - Linda Gardner Dick Gardner’s largest and most obvious proLinda also credits CFO Peter Napolitano, an fessional legacy, they were also a big part of instrumental part of the company’s recent the creation and early growth of UTCA more operational and financial progress, as well as than 50 years ago. They knew an organization a strong inside support team. like UTCA was needed to help support and grow the industry, Over the years, Brent has been able to rely on vendors such as and that the force of many was stronger than one. ADS-Advanced Drainage Systems, EBAA Iron, Inc., EJ, Fernco, They were such an integral part in the beginning that the UTCA JM Eagle, McWane Ductile, Mueller/US Pipe Valve and Hydrant, phone was actually in the Brent offices in the early years. Larry Multifittings/IPEX, Oldcastle, Romac and Tyler Union. and Dick Gardner also handled mailings, meeting notices, contractor networking, and even helped produce the Association’s “To be successful in your business, it is very important to have strong relationships with your employees, customers and venfirst industry directory. dors,” Linda says. In honor of Larry’s contributions, the UTCA presents the Larry Gardner Memorial Award each year to an outstanding Associate In the years since her father died, the company has grown and Member. Dick Gardner received the award in 1989, unfortunate- modernized in a way that would make her father and grandfaly shortly after his father died at age 94. In 2015, at the 50th Anni- ther proud. Linda moved the corporate headquarters from West versary UTCA Convention, Linda Gardner accepted the award, Orange to Florham Park and continues to expand the business by keeping up with the everchanging industry. recognized for her years of support to the Association.

“We’re continuously working to make ourselves better Success through Service since 1927”

Along with the Larry Gardner Memorial Award, Linda was named one of New Jersey’s 2015 Top 25 Leading Women Entrepreneurs. In 2016 she received the Professional Women in Construction (PWC) - Women of Achievement Award and Smart-

Cover Story

It continues to be her intention to run the family business long past this 90th year mark and do it with the same hard work, loyalty and courage of her convictions that she saw in her grandfather and father.

CEOs Brava Award, which honors top female CEOs.

“We continue to add new product lines, expand our sales force, embrace new technology, update equipment and hire qualified people,” she says. “You need to surround yourself with knowledgeable people, and to provide service to customers second to none. Being an independent distributor has allowed Brent Material to provide more flexibility and better service to their customers, which in turn has benefitted the customers’ bottom line. Brent has always sought to find advantages for its customers by promoting the concept of Value Engineering. “As the industry continues to change, we have to be one step ahead,” she says. “We’re continuously working to make ourselves better - Success through Service since 1927”

Pictured left to right are Kevin Ohlweiler, Angielina Prendez, Gabriella Amarilla (sitting), Emily Rose (sitting), Linda Andreoli and Anna Klyushnichenko.

UTCA would like to congratulate Linda, the entire Gardner family and Brent Material staff on 90 incredible years in business and thank you for all you have done for the construction industry.

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the new silica compliance flowchart are you in compliance?

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fall related hazards a dangerous but preventable exposure By: bob azarian, willis towers watson, northeast region

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all related incidents continue to be the leading cause of death in the construction industry, accounting for over one third of all construction fatalities, according to the U.S. Department of Labor’s Bureau of Labor Statistics. Although the exposures may appear more evident on building or large bridge construction projects, there is also a considerable and often unforeseen impact on the street, road and utility sides of the business. A comprehensive fall management program can control fall exposures, an ever-present and potentially devastating hazard.

It is important to understand that an effective fall protection program involves much more than just giving a worker a body harness and a six-foot lanyard. Based on years of experience, safety professionals are well aware of contributing factors to fall injuries, and have developed recommendations to eliminate fall accidents. Representative poor practices and common challenges still occurring on today’s job sites are described below. Best management practices, as we’ll illustrate, promote safety, save lives and provide economic benefits to all. COMMON CHALLENGES Lack of Preplanning • An employee and/or subcontractor shows up on a jobsite without proper fall protection equipment, creating a potential catastrophe should an accident occur, and an operational risk of being shut down that would cost a company down time and project delays. Consequently, fall protection must be formally planned in advance of work, integrated into project management and communicated to the workforce. But many contractors do not preplan effectively. Lack of 100% Fall Protection • Many contractors have good fall protection programs on paper: however, routine field assessments identify shortcomings. Common areas of neglect may include, but are not limited to, the following:

2. Failure to provide the proper equipment to maintain 100% fall protection during transition points (access/ egress to the work area) 3. The placement of snow fencing, caution tape or barricades, that do not meet Occupational Safety and Health Administration (OSHA) guardrail requirements, too close to an exposed edge or deep open excavation

Safety Perspective

The cost of implementing such a program is relatively inexpensive. Not only are these safety programs economical and practical, but their proper implementation can eliminate fatalities and reduce the rising costs of settlements and insurance premiums.

1. Failure to install (or protect those responsible to install) fall protection systems such as guardrails, lifelines or initial placement of retractable lifeline systems

4. Failure to provide temporary covers on unprotected precast concrete utility vaults 5. Failure to inspect and maintain heavy equipment including fabricated guardrail systems and ladder access points 6. Failure to inspect existing fabricated metal ladders found in aged storm water and manhole entrance points 7. Failure to protect workers while rigging materials (Workers often have to climb structures at significant heights to place/remove slings and shackles.) 8. Failure to raise awareness to the hazards of working on flat-bed trucks including maintaining safe access and minimizing the need to walk the beds 9. Failure to raise awareness to fall exposures while using milling machines, traffic control vehicles, mobile paving units or portable aggregate crushing/screening machines, as examples 10. Failure to plan deliveries to avoid exposures when unloading materials on overpasses or elevated roadways where trucks may sit higher than barriers/guardrails 11. Failure to protect open shafts/caissons 12. Failure to provide an adequate working/walking platform when using scaffolds, and failure to properly assess feasibility of safe access and fall protection when erecting/ dismantling scaffolds. • Safety inspections and planning audits should be flexible and thorough. It is not uncommon for periodic inspections to occur. As an example, the inspectors observe several individuals working on a suspended scaffold. At first glance, all looks in order. However, if the inspection was timed when workers actually accessed the scaffold, it would be apparent workers are unprotected

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for a few seconds. Timing the inspection at those times may lead to some improvements such as adjusting the type of equipment needed to maintain 100% fall protection. Lack of Adequate and Complete Fall Protection Equipment • Employers provide a typical single leg six-foot shock absorbing lanyard and full body harness to their workers. They may even provide them the required training. However, they often forget to provide those same employees an adequate anchor point in compliance with OSHA requirements, as well as the equipment and means to attach to that point. In order to optimize the ability to achieve 100% fall protection in a very dynamic environment such as construction, contractors must make sure workers have immediate access to a variety of fall protection equipment including double lanyards, retractables, various size lanyards and attachment devices.

Safety Perspective

Lack of Employee Training • Many contractors “assume” that an employee has received fall protection training through work with previous contractors or perhaps trade affiliations. This may be true in many cases. Many trade associations have very good safety training programs. However, some affiliations may have a waiting list, rely on the contractor or leave it as an option for the individual to attend. • Secondly, the dynamic environment on a large construction project produces its own challenges. A proactive contractor may conduct a large site-specific fall protection class in preparation for future activities. By the time the operation starts, a large percentage of that workforce may have changed. Training must be offered frequently to accommodate the turnover inherent to the construction industry. • Pursuant to OSHA Subpart M fall protection requirements (1926.503b), employers must maintain written “Certification of Training” records for all workers exposed to a fall. Unfortunately, they do not dictate a time duration. This requirement is often misrepresented by assuming that a toolbox talk or worker orientation might satisfy it. In most cases, this would not suffice. Fall protection training should be task and equipment specific and involve a sufficient amount of time to ensure understanding of the topics at hand.

ments and solid certificates of insurance in place to protect them. This may be the case in an ideal world, however, many times subcontracts are delayed, not used, or insufficiently worded. There are also regions, in which, state labor laws are more stringent and require very specific indemnification wording that if not present and reviewed by a qualified attorney or legal advisor can provide a false sense of protection. Insurance policies can also have hidden exclusions, insufficient limits or be issued by a low rated carrier. A contractor may also fear that if it directs a subcontractor, liability will increase. That may be true when it comes to means and methods. A general contractor should not dictate how a subcontractor will comply with OSHA regulations unless qualified and responsible to do so. However, it is acceptable and beneficial to require subcontractors to explain their method of compliance with OSHA standards. Most subcontractors will submit a generic health and safety program recapping the OSHA regulations. A proactive contractor will require its subcontractors to submit a site and task specific fall protection program. Typically, this will be a smaller but more concise and effective program submitted and reviewed prior to mobilization. Unclear Assignment of Responsibilities • Many times, contract specifications may not clarify when the fall protection responsibilities begin or end on a job site for a specific subcontractor. Most subcontractors also assume that when they leave a job site their responsibilities are over. This may be the case in certain situations. However, many times a subcontractor will leave a job site, and the ongoing responsibility for maintaining any existing controls in place may not be clear. It is very important, regardless of a subcontractor or general contractor, that the responsibilities of providing and maintaining fall protection are clearly and contractually defined throughout the project.

Lack of Enforcement • Some contractors have a disciplinary policy in their health and safety programs which may be loosely enforced, undocumented or an inconsistent interpretation of zero tolerance. In realty, some contractors never extend or formally implement their programs beyond a simple verbal warning. A disciplinary policy with no “teeth” will quickly lead to a jobsite with poor loss performance. A disciplinary program must be strict, sustainable and consistently applied. Most importantly, supervisors must be held accountable for the performance of their crews. Lack of Subcontractor Management • Many times a contractor will overlook the performance of their subcontractors as they feel they have strong subcontract agree-

BEST MANAGEMENT PRACTICES Fall protection is only a portion of an overall fall management program. Fall management is a planning process which analyzes fall hazards and implements preventative measures and/or procedures for the protection of the worker. The checklist following this article could be utilized as a guideline to assess your written program. In addition to required OSHA regulations related to fall protec-

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tion and the above best practices, the American Society of Safety Engineers (ASSE) is routinely updating its codes. An example includes the Z359 Fall Arrest Code, which is a series of American National Standard Institute (ANSI) and ASSE fall protection/arrest standards. These updated consensus standards will provide employers additional tools including best practices to protect today’s workers. Check the ASSE website for future release dates of both the electronic and print formats. OSHA has also developed a lot of great resources and educational materials as a result of recent campaigns to reduce falls in the construction industry. A solution exists Construction site falls continue to be a very serious problem for all contractors. The good news is that most fall-related accidents are completely preventable by applying a thorough, consistently implemented, comprehensive fall management program. It is important to work together with your employees, management staff and broker/insurance carrier loss control consultants to develop and enhance your fall protection programs. Teamwork and shared responsibilities will maximize the effectiveness of your program and benefit everyone.

About the Author. . . Bob Azarian is the Safety and Loss Control

Leader for Willis Towers Watson, a leading global advisory, broking and solutions company. He brings over 20 years of construction risk management experience relating to contractor safety, health and risk control services. Bob can be contacted at: robert.azarian@willistowerswatson.com or by phone at 201-888-4067.

Safety Perspective

The above article is purely advisory. It is not intended to replace applicable local, state and federal regulations. Any changes made to your safety program should be reviewed and approved by your legal advisor.

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common mistakes for contractors to avoid: labor and employment law By: jonathan landesman, esq, cohen seglias pallas greenhall & furman pc

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aving been a labor and employment lawyer for the last 20 years, it’s fair to say that I’ve been around the block a few times. I’ve represented hundreds of contractors, and I’ve seen them make the same mistakes, again and again. This article is not an academic exercise. In plain English, I’m going to tell you about some of most common mistakes I have seen so that you can avoid them.

all of her annual performance reviews and that she has received the same wage increases and bonuses as her peers in the office. How do I advise this client? I tell him exactly what he doesn’t want to hear: that if he terminates the employee, he’ll be buying a lawsuit that I may not be able to successfully defend. If only

Whether I’m presenting a case to a jury or an arbitrator, or if one of my clients is challenging unemployment compensation eligibility, labor and employment cases are won or lost based upon the quality and quantity of documentation in the personnel file. If the documentation is lacking, the case turns into a “he said, she said” scenario – which always involves a lot of risk. Why, then, do my contractor-clients, even the larger ones, consistently fail to create proper documentation? I believe that there are two main reasons. First, creating good documentation takes time and attention to detail, and supervisors and managers are too busy (or, in some cases, too lazy). Second, handing someone a disciplinary write-up or subpar performance evaluation can be difficult for a lot of people because human nature drives them to avoid confrontation. So here’s the bottom line: every manager and supervisor in your company needs to understand the importance of documenting employee-related issues, especially performance, attitude, and attendance issue. Failure to do so will cost you big time, either in settlement dollars, legal fees, or, Heaven forbid, a jury verdict. Mistake No. 2 – Misclassifying workers. Did you know that there are more overtime lawsuits filed in federal court than sex, race, age, disability, and harassment lawsuits combined? Figuring out who is properly considered exempt and who must be paid overtime is not as straightforward as you might think. For example, a federal court in Philadelphia recently ruled that a highly compensated, salaried project manager was not exempt because he only supervised his subcontractor’s employees (and not people directly employed by his employer). Or what about your junior estimators or purchasing agents: have you assumed that they are exempt? Making assumptions in this area of the law can be very costly, and one of the reasons that these lawsuits are so popular is that the plaintiff ’s lawyers are entitled to seek their attorneys’ fees even if they recovery only a small amount of money for their clients.

Labor Relations

Mistake No. 1 – Failing to create appropriate documentation. Whether you are dealing with an employee who is chronically absent or getting ready to fire a poor performer, I cannot overstate the importance of documentation. By far, this is the single biggest mistake my clients make. Here’s an example to illustrate the point. It’s Friday afternoon at 3:30 p.m. when my phone rings. It’s a long-standing client and even though he’s usually a laid back guy, this afternoon he sounds frustrated. He wants to immediately terminate an employee who works in an administrative position in his office. She just isn’t getting her work done fast enough and there are too many errors. To make matters worse, she has a terrible attitude. When I ask how long she’s been working for the company, the answer is 17 years. When I ask if she’s been written up for her poor attitude and/or lack of productivity, the answer is no. But then my client adds that she’s received “verbal counseling” a couple of times. Finally, I learn that my client has given this employee “satisfactory” ratings on

this client had taken the time to create appropriate documentation, I wouldn’t have had to tie his hands.

On a related note, many of my clients mistakenly believe that they can convert a worker into an “independent contractor” simply by issuing him a Form 1099 instead of running wages through payroll. I’ve seen this issue pop up with all types of workers, from laborers in the field to sales representatives with their own LLCs working out of their homes. The vast majority of the time, the

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independent contractor label is inappropriate, and my client is sitting on a potential landmine. Instead of relying on your intuition and leaving things to chance when it comes to classifying your workers as salaried-exempt or independent contractors, this is one area of compliance that you need to get right by discussing it with your labor and employment attorney before a claim is filed.

Labor Relations

Mistake No. 3 – Botching certified payroll reports. Did you ever notice the fine print at the bottom of your certified payroll reports where you are certifying that everything is true and that you are subject to criminal prosecution for falsification? Do you know anyone who has been prosecuted for prevailing wage violations and actually served time for it? Unfortunately, I do. Certified payroll reports need to be accurately completed each and every week. Everyone performing work on the job (i.e., working with the tools of the trade) needs to appear on your reports, including owners, relatives, day labor, probationary employees, foreman, and working supervisors. You need to pay the correct rate specified in the project specs, which may be higher than the rate stated in your collective bargaining agreement. And finally, you need to make sure that you are properly reporting and not taking inappropriate credits with respect to certain fringe benefits and unvested pension contributions. Mistake No. 4 – Adopting a “monkey see, monkey do” approach to double-breasting. If you have a union business, you can start a non-union business performing the same work so long as you have a separate corporation and tax ID number, and you put the company in your spouse’s name, right? Wrong! Everyone in the construction industry knows about companies who seem to have beaten the system and operate union and non-union companies

at the same time. Why can’t you do it too? The answer is that the courts, arbitrators, and administrative agencies like the National Labor Relations Board look at a variety of different factors to determine whether two entities are truly separate or mere “alter egos” of one another. If the two entities are ultimately controlled by the same person or group of persons, especially with respect to personnel issues, or if the two companies share any back office personnel, office space, managers, estimators, bonding, insurance, or other facilities, the chances of trouble are significant. When it comes to double-breasting, it is true that some companies get away with murder for years, if not decades. Because of personal relationships or for other reasons, business agents may turn a blind eye to blatant violations. I’ve seen these situations many times and regardless of what others in the industry are doing or how long a violation has been going on, they are very difficult cases for the contractor to win. Conclusion. As you may have noticed, there is a theme developing here: contractors invariably find themselves in hot water when they fail to create appropriate and accurate documentation, and rely upon intuition instead of seeking guidance from an experienced lawyer when confronting technical compliance issues. That is why I constantly preach preventative maintenance. It may be cliché, but when it comes to labor and employment law compliance, an ounce of prevention is worth a pound of cure. About the Author. . . Jonathan Landesman, Esquire is the Co-Chair of the Labor and Employment Group at Cohen Seglias Pallas Greenhall & Furman, PC. He is also a member of the Firm’s Executive Committee. Jonathan represents general contractors, subcontractors, and other businesses in the construction industry in all areas of labor and employment law, including discrimination litigation, union and fund related matters, non-compete agreements, and day-to-day human resources counseling.

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the water quality accountability act driving real progress By: dan kennedy, director of environmental & utility operations

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n the world of water utility operators and contractors, maintenance and investment in water infrastructure (or lack thereof) is a long-standing concern. In the world of the Average Joe or Jane in New Jersey, not so much. That was before Flint. Some say we have entered into a “new normal” where water issues will be taken more seriously. Big talk about water infrastructure is at an all-time high, with phrases like “asset management” being thrown around by wonks in policy circles as the next big government cliché. National stories about lead in drinking water, striking statistics on leaking finished water pipes, and front-page water main breaks swallowing cars have thrust water infrastructure issues into main stream consciousness. Big conferences have been planned and held, articles have been published, and the “big talk” is at an all-time high. One could rightfully ask…to what end? What has really changed?

“This newfound attention cleary creates an opportunity for UTCA members IF it is effectively translated into increased funding for water infrastructure and the streamlining of the governmental approvals to get our shovels in the ground.”

The Pipeline

This newfound attention clearly creates an opportunity for UTCA members IF it is effectively translated into increased funding for water infrastructure and the streamlining of the governmental approvals to get our shovels in the ground. If this happens, UTCA members will be a big part of the solution to New Jersey’s water problem.

to include systems with more than 500 service connections) that own drinking water systems. The requirements are, simply put, long-standing best management practices that responsible drinking water systems have been applying all along. Less responsible drinking water - Dan Kennedy systems have not. Requiring these best management practices for all systems significantly levels the playing field. These new requirements include:

• Required inspection of valves at a frequency consistent with industry standards, including an assessment of accessibility for operational purposes; • Valve inspection must include clearing the area of the valve, cleaning out the valve box and dynamic testing of the valve including compliance with any additional criteria that may be developed by NJDEP in the future through the rulemaking process; • Yearly testing of all fire hydrants in the system, requirements for physical marking of hydrants with GPS coordinates to the extent possible, and required plans for systematic flushing; • Record keeping requirements that may be subject to State audit and/or public inspection of any interested party in the future, which creates real transparency; and Passage of the Water Quality Accountability Act – What Does it Change? Thanks in no small part to UTCA leadership, the State has taken one major step forward in the fight to revive our drinking water systems. This past July, the “Water Quality Accountability Act” (WQAA or the Act) was approved as P.L. 2017, c. 133. The WQAA is now in effect, and puts clear obligations on public and private utilities (defined

• Development of a cybersecurity system (in accordance with BPU requirements) for water purveyors with internet-connected control systems. In addition to the above requirements, new obligations have been put onto water purveyors to more effectively address violations. Once a purveyor is found to be out of compliance with drinking water standards, they will have to create a mitigation plan that includes operational changes and/or capital investment. The mitigation

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plan must be prepared by the licensed operator of the system and a licensed P.E., and must be certified by the responsible corporate officer of the public water system. This creates real accountability -- especially when the responsible officer happens to be a Mayor. What About Long-Term Capital Investment? The requirements discussed above are all very important. That said, they don’t get at long-term capital investment, which is what is needed the most. The WQAA also requires that every water purveyor covered by the law must prepare and implement an “Asset Management Plan” consistent with standards established by the American Water Works Association. This must be in place no later than 18 months after the effective date of the Act (October 21, 2017). The concept of an asset management program is likely familiar to most UTCA members, but until now, has never been broadly required for New Jersey’s drinking water infrastructure. The AWWA and NJDEP provide a useful definition as “a process to ensure that there is sufficient investment in and planned maintenance, needed repair, replacement and upgrade of the physical components of a drinking water system.” According to AWWA / NJDEP guidance, there are five major, generally recognized components of asset management: 1. Perform an inventory and condition assessment of the system’s assets; 2. Define level of service goals; 3. Prioritize assets based on criticality and business risk exposure; 4. Establish life cycle costs; and

The Pipeline

5. Develop a long-term funding strategy. Asset management planning by individual systems has been recommended and in limited circumstances, required by the NJDEP. Historically, Federal or State drinking water laws have primarily focused on standards for the quality of the water at its finished stage. Regulating organizational practices or investment cycles is not the norm. This proactive approach is now required by law. This “new normal” for drinking water systems will undoubtedly drive more investment in infrastructure statewide. The Act also includes other important requirements, such as: • The creation of a water main renewal program designed to achieve a 150-year replacement cycle, or other appropriate replacement cycle as determined by a detailed engineering analysis; • That each water purveyor must dedicate funds on an annual basis to address and remediate the highest priority projects, as determined by its asset management plan; and • That all plans and reports must be certified by the licensed operator or P.E. of the public water system and the responsible corporate officer of the public water system, whether public or privately owned. Taken together with the increased transparency and accountability, these new requirements will require systems to address long-standing issues over the coming years. Hard conversations will be forced in each service area. In many cases, uncomfortable and perhaps un-

popular options will have to be considered about the future management of each system. The WQAA does not provide the right answers for each system, nor should it. The nuances of each system are impossible for the Legislature or any state agency to understand well enough to dictate a solution. Why This Matters to UTCA Members • Requires new levels of financial investment in drinking water infrastructure • Levels the playing field – now all drinking water systems are required to maintain and invest in high priority infrastructure • Creates new opportunities – UTCA members’ expertise on valves, hydrants, and water mains will be needed to assist utility operators meet new standards • Brings transparency – A true assessment of conditions is likely to minimize ratepayer opposition to necessary borrowing / rate increases for high priority projects More Work to be Done • We will be working with NJDEP, BPU and DCA to ensure that the provisions of the Act are fairly implemented in a timely manner. This includes participating as stakeholders with any rulemaking, if necessary; • We will push for transparency (while respecting any information that represents a homeland security concern) from water purveyors to ensure that the public has a true appreciation of the issues with their local water systems and the investments needed to mitigate any long-standing issues; • We will engage with key water purveyors and advocate for high priority projects that are important to UTCA members (contact me with your thoughts!); • We will engage with the Legislature to amend the statute to include wastewater systems, not just drinking water systems; and • Advocate for continued funding of the Environmental Infrastructure Trust, including increased efficiencies and streamlining of those programs while we investigate options for new sources of funding. UTCA will continue to be a leading voice for maintenance and investment in all water infrastructure, as it has the past 50+ years. Please email me at kennedy@utcanj.org if you would like to discuss this matter further. About the Author. . . Dan Kennedy recently joined the UTCA Staff as the Director of Environmental & Utility Operations. Prior to this role, Dan served as the Assistant Commissioner at the NJDEP from 2014-2017. In this capacity, he oversaw the Division of Water Supply and Geoscience, the Division of Water Quality, and the Water Monitoring Standards Program for the State of New Jersey Department of Environmental Protection. He is a licensed professional planner with a Masters Degree in City & Regional Planning from Rutger’s Edward J. Bloustein School of Planning & Public Policy and a B.S. in Environmental Science from the University of Delaware.

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a message from acecnj chairman By: michael brescia, northeast regional director | senior vice president, michael baker international

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ew Jersey needs a new and long-term vision for infrastructure. The election of Phil Murphy as New Jersey’s next governor presents us with a significant opportunity to implement that vision. Murphy made infrastructure a priority during the campaign and now has a mandate to make good on his campaign promises including fixing NJ TRANSIT and rebuilding our crumbling infrastructure, whether it’s transportation, water and waste water, or buildings. As Chairman of ACECNJ, I stand ready to support the incoming administration develop and implement a new vision and give New Jersey the infrastructure network it needs and deserves. ACECNJ is hopeful and optimistic that Governor-elect Murphy - and his nominees and appointees charged with overseeing our infrastructure - adopts a vision that prioritizes expedited capital program delivery; works to streamline the organization of our agencies and authorities; reforms and enhances the way government agencies do business; and incorporates innovation and technology into agency operations. ACECNJ will be advocating for several key policy initiatives in 2018 that support a new vision for New Jersey’s infrastructure. ACECNJ’s proactive 2018 public policy agenda supports the business interests of New Jersey’s engineering firms; I believe it also benefits New Jersey’s contracting industry. Several of these key issues are spotlighted below.

Qualifications-Based Selection: Over the life of a project, engineering-related services account for less than 1% of total costs, but these services play a major role in determining the other 99% of the project’s life-cycle costs as well as the quality of the completed project. Selecting the engineer with the best qualifications, expertise, experience and ability to incorporate innovation is critical to ensuring that every taxpayer dollar is spent wisely and efficiently. Using price as a selection criteria causes cost overruns, construction delays and a lower quality product for the public. Price is still a factor, and successful price negotiations must occur, but after the engineer is selected based

New Jersey has a weak QBS law with many loopholes. Legislation to close these loopholes must be enacted in order to reform the way engineering services are selected and demonstrate to the public that New Jersey is wisely using every dollar spent on transportation. Uniform Indemnification Language: Engineering firms should only be responsible for the work they perform. If contracts are non-uniform, and deviate from the statutory standard of care, indemnification requirements would not be covered by the engineering firm’s professional liability insurance. ACECNJ strongly supports legislation to standardize indemnification-related contract language across all public agencies and authorities throughout New Jersey. Legislation should also prevent design professionals from being forced to indemnify clients for damages that fall outside their professional standard of care. Design-Build & P3 Authorization: ACECNJ believes in the value of a project delivery system that guides the design of public and private facilities, is in the interests of the owner, utilizes QBS for design professionals, provides unbiased protection for the present and future infrastructure, and protects the health, welfare and life safety of the public. Any legislation authorizing the use of alternative project delivery methods like Design-Build must also protect the design professional by preventing the replacement of that individual or firm at any stage of the design-build project without the approval of the contracting unit. ACECNJ has been - and looks forward to continuing to - working closely with UTCA and other key stakeholders to make sure that alternate delivery methods like Design-Build are enacted in a responsible and prudent fashion. ACECNJ has built a strong working relationship with UTCA in recent years and looks forward to working together on key policy matters in 2018 and beyond. In my Capacity as Chairman of ACECNJ for the next 18 months, I look forward to continuing our fruitful partnership with UTCA and supporting the Murphy Administration to implement a new vision for infrastructure. My hope is that we all work together to give New Jersey the infrastructure it needs and deserves. As an Engineer and the son of a contractor, I firmly believe that Engineers and Contractors work best when we all focus on ribbon cuttings that deliver lasting infrastructure projects for our communities.

Engineering Exchange

ASCE’s BS+30 Initiative: ACECNJ strongly supports ways to improve the quality of the engineering profession and its practitioners. However, ACECNJ has serious concerns about an initiative being promoted by the American Society of Civil Engineers (ASCE) around the country to arbitrarily increase the amount of formal education required before professional engineering candidates can sit for the licensing exam. This initiative would decimate New Jersey’s engineering profession, increase costs for design & engineering services, delay projects, make it harder for engineering and contracting firms to hire qualified PE’s, and severely hinder the ability of public agencies and authorities to deliver their annual capital programs. A strong coalition led by ACECNJ and UTCA successfully defeated this inane proposal in 2017 and will continue to strongly oppose initiatives like BS+30 that harm New Jersey’s construction industry.

on qualifications. Engineering is a highly skilled profession, and the responsibility for designing a road, bridge or transit system is too important to be determined by the lowest bid. Qualifications Based Selection (QBS) should be a no-brainer for contractors and heavy construction labor organizations who wish to avoid construction delays and claims that come with selecting design and engineering services based on price.

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Feature Story

harter equipment celebrates 50 years in business Contributed By: sue harter, harter equipment

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ifty years ago, the late Seth Harter set out to go into business for himself. Harter had already built his reputation as a successful salesman for North Jersey Equipment Company and looking to expand, followed his entrepreneurial ambition to a partnership opportunity with the Moline, IL based Deere & Co.. John Deere had been an agriculture equipment manufacturer since the 19th century but was a relative newcomer in the construction equipment industry, branching into the market just ten years earlier. That was January 1967, and Harter Equipment, Inc. opened its doors as a John Deere dealer with 3 employees in a rented, 2,000 square foot facility in Matawan, NJ. In 1972, Harter moved his young business from bustling Matawan to the then-undeveloped Route 33 in Millstone Township, NJ. Some thought the move was crazy, but Harter followed his instincts – just like he did with the Deere partnership – and his boldness once again paid off. The four-lane state highway, just four miles from NJ Turnpike Exit 8, has transformed over the past 45 years from farms and orchards to one of the state’s major east-west thoroughfares surrounded by houses, shopping and services. Under Seth’s leadership during the early history of the business, Harter Equipment became something of an icon in central New Jersey; firmly established as a progressive, full-service, multi-line construction equipment dealership that was growing

Harter Equipment facility, 615 State Route 33, Millstone Twp., NJ.

and diversifying to suit the ever-changing needs of the construction equipment industry. One of the first diversifications Harter undertook was becoming a Kubota dealer in 1971. As the world’s leading manufacturer of diesel engines under 40hp, Kubota tractors became a staple for landscape contractors and site developers during the housing boom of the 1990s and early 2000s. Kubota compact excavators and wheel loaders soon followed, and more recently, compact track loaders and skid steer loaders. Today, Kubota Tractor Corp is a global provider of compact construction equipment in addition to their core tractor business. After moving to Millstone Township, business was good enough that Harter made several additions to the original building. In 1978 he doubled the size of the shop and in 1980 he added 5,000 square feet of warehouse and office space. As business continued to grow, so did the improvements to the grounds and facility. In 2000, the front of the building was given a face lift, the second floor storage area was remodeled into a lunch room, training facility, and office space for the accounting department. In 2005, the dealership acquired nine acres of property next to it, keeping some for itself. In 2011, the company installed a 100,000 KWH solar system on its south facing shop roof which generates enough energy credits to pay for 100% of their electricity. And this year, the company completed a renovation of the lobby and parts department. As times changed and housing demands declined, Harter forged new partnerships with other highly specialized, single-product manufacturers to continue expanding the business. In 1998, the

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company took on Kobelco, which then, and today, manufactures only excavators. In 2001, it was Kawasaki (today KCM) that manufactures only wheel loaders. Rayco forestry products were added in 1999 and the Dynapac line of rollers and pavers added in 2008. More recently, Harter Equipment became a Hyundai dealer (2010) and Bell truck dealer (2015).

“We understand the value of our customer’s time”

Today, Harter Equipment operates on six acres in Millstone Township, in a 20,000 square foot facility with 35 employees. The path was not always easy…recessions, labor It was during this period that Sue Harter issues, and manufacturer mergers and acqui- Brad Boyd, came to understand the importance of the sitions to name a few challenges…but Seth after sales support and really rolled up her Vice President Of Operations Harter succeeded by sticking to his core visleeves to bolster this part of Harter’s busision of seeking quality products, providing ness. “My father was a sales person, and the best service possible, and engaging in that’s what he was always most comfortable straight forward and fair business practices. with” says Sue Harter. “I was lucky to get Sadly, Seth Harter passed away in September of 2015, but he left involved in the parts and service side of the business at a time the business in the capable hands of his daughter, Sue Harter, when manufacturers where really stressing the importance of it.” now with the company 32 years. Like her father, Sue has worn Fine tuning parts and service procedures and practices, attendmany hats during her tenure and today, runs the operations of ing numerous training programs over the years, and hiring good the dealership with a team of hand-picked, dedicated employees. Sue and her sisters began counting parts for annual inventories at the dealership as kids; by age 15, she was helping her father with the books. “John Deere provided their dealers with a ledger system consisting of about 5 to 10 hard bound, ledger books that the bookkeeper would manually enter debits and credits into. At the end of each month, my father taught me how to summarize that data and prepare a financial statement to submit to Deere,” she recalls. “Little did I know then, that I would become an accounting major in college, and ultimately come back to Harter Equipment as CFO.” After graduating from the University of Maryland with that accounting degree, she worked for a New York City “Big 8” accounting firm, became a certified public accountant, and later a controller with another company. It wasn’t until 1985 that she considered Harter Equipment a viable workplace option and joined the company as Controller, managing the accounting and financial functions of the dealership. Five years later, the company had cutbacks in staff during the recession of the early 1990’s,

Feature Story

and Sue knew she needed to ease out of her comfort zone. Sue took over Harter’s rental market, where she familiarized herself with the equipment and established many of the customer relationships she still values today. At that time, other managers oversaw parts, service and sales, but it was not long before her father recognized her competence outside financial accounting. By the mid 1990’s, Sue was in charge of the parts and service departments.

“Future Operators” show off their skills during Harter Equipment’s 50 Anniversary Celebration held June 3rd. Adults and children off all ages competed for prizes in several equipment rodeos, while also enjoying a pig roast, Chinese auction, raffle for a TV and other activities.

talent have been instrumental in Sue Harter’s contributions to the company’s continued success. The company’s product diversification over the years has made it a full line construction equipment dealership. From heavy excavators and articulated trucks to light commercial lawn equipment and compact tractors, as well as the implements and attachments, Harter Equipment carries it. They sell, rent, rental purchase, or lease new and used equipment while providing the after service support expected. They pride themselves on being able to meet the needs of large contracting operations while still remaining personable and true to owner-operator customers. “A customer can truly grow with us” says Vic Riga, Vice President of Sales “from that start up commercial lawn service provider, to a fully matured site contractor; a customer can count on us the entire journey.”

The cornerstones of Harter’s 50 years of success: John Deere, Kubota and Kobelco products on display at Harter Equipment.

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Feature Story

A unique characteristic of Harter Equipment is that it operates from one location and the company sees this as an advantage. Contractors soon learn that the dedicated Harter team is always “right here” to help them. And because of their central location and easy access “New Jersey contractors are never really far from us” says Sue Harter. Situated about mid-way between the NJ Turnpike and Route 9, their location makes for quick access to Northern and Southern points alike, and Route 33 provides an easy, usually congestion free, access to their facility. Their employees all work under one roof, affording good communication and an ease to get things done.

“The company’s slogan - People, Products & Service...you’ll dig represents us to a tee” - Sue Harter

The company also attributes its central location and easy access as one of several factors in the growth of its statewide rental business. The company has been in the rental market since its inception, but recent development has seen the fleet grow to over 150 pieces of construction equipment and attachments, all dispatched from and stored in Millstone Township. The company rents a diverse selection of low hour, current model, asphalt and earth moving equipment across the state to many UTCA contractors. Customers can pick up rental equipment at the Millstone Township location or Harter Equipment can deliver to their jobsite. They maintain two low boy tractor trailers and employ two full time CDL drivers as well as a roll back for compact equipment deliveries. Being able to order equipment on-line from a smart

phone, tablet or PC, a streamlined credit application process and maintaining quick check-in and check-out procedures are some other reasons why contractors like renting from Harter Equipment. “We understand the value of our customer’s time” says Brad Boyd, Vice President of Operations. “Providing reliable, good quality equipment and service is just not good enough today. We like to differentiate ourselves by making it easy to do business with us, keeping our processes efficient and abiding by our principles to deal with customers in a straight forward and fair manner.”

The company’s slogan “People, Products and Service…you’ll dig” represents us to a tee, says Sue Harter. “Our People are our #1 asset. I am forever grateful to them, the work they do every day and the drive and passion they have to support our customers. The Products we represent come from the most respected brands in their respective markets. And our Service is prompt, courteous and delivered by trained professionals in such a way that we’re sure “you’ll dig” doing business with us!” Harter Equipment is a member of AED, LICA and UTCA and is a NJ and Port Authority of NY & NJ certified Woman Owned Business (WBE). (Excerpts of this article reprinted with the permission of Construction Equipment Guide.)

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NEWS

identity theft protection: a necessity for all employers & their employees By: nancy damato, rda benefit services

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any more employers are offering identity theft protection benefits, as a result of recent breaches, most notably, Equifax and the SEC’s EDGAR corporate filing system. The Federal Trade Commission has advised that “information security should be a priority for every business in America.” And according to a special report, offering Identity Theft protection benefits is among the top 10 Best Practices in HR Management for any business. The reality of a cyber attack is a serious concern for all business owners, since it is now a matter of “when”, not “if ”, it will happen to you, your business, and your employees.

this would need to take care of it immediately, most likely during business hours. Not only would an identity theft protection product monitor your accounts and your identity and alert you to any issues, they also provide full identity restoration.

According to CNN Money, there are 30 new Indentity Theft victims every minute

According to Michael Hall, a certified identity risk management specialist, the workplace is the site of more than half of all identity thefts. There are five types of identity theft: financial identity theft, driver’s license identity theft, social security identity theft, medical identity theft and character/criminal identity theft. And he noted that the 5 main causes of data breaches at work are: disgruntled or dishonest employees, untrained or careless employees, lost or stolen laptops, service providers, contractors and visitors, as well as hackers. So, what can you, as an employer, do to prevent these breaches? Hall has suggested some basic steps:

We are proud to announce that The Utility and Transportation Contractors Association has partnered with RDA Benefit Services and Legal Shield, a leader in identity theft protection and restoration, to offer members access to this valuable service. The purpose of this program is to help lower your company’s potential liability associated with a data breach. We can conduct an awareness and safety meeting for your staff, as well as offer ID theft protection and restoration services, as either a company-paid or voluntary benefit, to your employees.

The Legal Shield IDShield program includes the following benefits: • Identity threat alerts • Emergency assistance 24/7 • Live support • Lost wallet assistance

• Develop a written data protection plan. The plan should be designed to protect all data throughout the company.

• Data breach notification

• Appoint a security manager. This should be an upper level managerial employee.

• Complete range of monitoring services

• Provide training for employees. Employers should implement a training schedule and ask every employee to sign an agreement that he or she will follow company standards.

• Complete identity restoration with a dedicated licensed private investigator

• Before you outsource any company function, be sure to investigate that firm’s data security practices. • Consider offering Identity Theft Protection as an Employee Benefit. Typically, this would include restoration services, to assist the employee in reclaiming his or her identity. Currently, industry experts estimate that it takes more than 18 hours to recover from Identity Theft. An employee impacted by

• Social security number fraud detection • Unlimited consultations with a licensed private investigator

• Backed by $5 Million service guarantee Employers should most certainly consider including Identity Theft protection in their employee benefit packages. This is just one more way to help protect your business as well as your employees. Be proactive and offer this valuable service, knowing that Identity Theft is a top consumer complaint that is unfortunately here to stay. To learn more and get started, please feel free to contact Nancy Damato at RDA Benefit Services at 855-6930772 or ndamato@rdabenefits.com.

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C

hiesa Shahinian & Giantomasi PC (“CSG”) is proud to welcome management labor relations attorney Ronald Tobia to the firm as a member, expanding the capabilities and offerings of the firm’s newly-named Labor & Employment Group. He will be based in the firm’s West Orange, New Jersey office. Tobia currently serves as Special Labor Counsel to the Utility and Transportation Contractors Association (“UTCA”) of New Jersey, a position he has held for nearly 50 years. “I have supported the ideals of UTCA for almost half a century and I still believe there are current relevant issues that need to be addressed by contractors through UTCA,” said Tobia. Tobia has extensive experience in management labor relations in both the public and private sectors, handling all types of litigation, including NLRB and PERC proceedings, strikes and picketing, federal and state labor, discrimination and harassment litigation, contract negotiations, administration and arbitrations. He also has considerable experience in ERISA litigation involving withdrawal liability assessment against companies. “I could not be more excited to join CSG’s Labor & Employment Group, which has a stellar reputation as a thoughtful counselor to leading corporations throughout New Jersey and New York,”

NEWS

csg welcomes veteran management labor attorney ronald tobia as a member stated Tobia. “My client base will immediately reap the benefits of CSG’s full-service platform and the additional resources that come with it.” “Ron is one of the most sought-after labor attorneys in the region,” stated Catherine Wells, chair of CSG’s Labor & Employment Group. “With the addition of Ron to our team, we immediately enhance the value we provide to our clients.” Throughout his career, Tobia has successfully negotiated collective bargaining agreements with nearly every major trade union in the State of New Jersey, and has represented a wide range of companies and state authorities, including the New Jersey Turnpike Authority, the Delaware River Joint Toll Bridge Commission and the Associated General Contractors of New Jersey. “The expansion of our labor capabilities is another integral step in the firm’s strategic, client-focused growth plan,” CSG Managing Member Daniel Schwartz added. “We are delighted to have an attorney of Ron’s stature and experience at CSG and look forward to working with him.” Prior to joining CSG, Tobia practiced at Tobia & Sorger, a boutique labor and employment law firm which he co-founded.

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NEWS

j. fletcher creamer & son, inc. opens leadership and training center the facility will educate and train employees By: robert a. flock, j. fletcher creamer & son

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ith great pride, J. Fletcher Creamer & Son, Inc. formally opened the corporate Leadership and Training Center in Wall Township, New Jersey on October 12, 2017. The event, attended by invited guests, included comments by CEO Fletch Creamer Jr. and President Joseph T. Walsh. In his comments, Fletch noted that the Company goal is to be proactive, lead by example and set the bar a little higher in our Quest for Excellence. He continued, “...we are not perfect, but strive to be.” Every Creamer crew trains at the facility, and so do our subcontractors. All new hires will receive their orientation which includes the review of Company policies before they step foot on any job site. Each new hire will also view corporate training videos. Fletch went on to say that ‘It is a big expense but we look at it as an investment in the future. We aim to send everyone home safe, the way they arrived.” Mr. Walsh, who had the vision to build the center, further explained that the training stations on the property allow for crews to become familiar with and more knowledgeable of numerous types of construction. Along with learning how to do something correctly, they also learn how to do it safely. Taking the time to encourage employees to lead in their own way is all part of the program.

The Leadership and Training Center The Classroom

“Our company goal is to be proactive, lead by example and set the bar a little higher in our Quest for Excellence”

The indoor area contains a large room equipped with a video screen and a conference room where smaller groups can re- Fletch Creamer Jr. view specific topics and where new hire packets are typically completed. The new hires review the basic safety handbook, learn about Job Hazard Analysis (JHA’s) and review the corporate drug and alcohol policy. They will also receive HazCom and Silica Awareness training. They may also receive client specific instruction such as substation safety. Every employee’s training records and certifications are kept up to date. The Yard This area is complete with stations that include confined space entry, the proper way to install wood shoring and slide rail. Crews learn guide rail installation. They review working under overhead wires, excavation, utility locating, and conduit proofing. Hands on is the name of the game in the yard. The Shop Indoors in all types of weather, workers learn pipe fusing and pipe jointing. They learn how to tap water mains and assemble fire hydrants. Again, hands on instruction. This facility is a further example of the commitment by J. Fletcher Creamer & Son, Inc. to create leaders and teach the means and methods of construction with safety in mind at all times. We are very excited with what we have created. Teaching men and women to work safely and yet efficiently will produce the results that will allow us to continue towards the goal of zero lost time incidents.

After a ceremonial ribbon cutting guests were invited to walk through the facility, to see and learn firsthand what happens here. There were instructors at each station to answer any questions and explain that particular activity. After touring the facility guests enjoyed lunch under tents.

This Leadership and Training Center is a full time operation led by Creamer Senior Safety Manager, Michael Liguori. Safety – Quality – Reliability – Integrity - Productivity

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NEWS

does a public owner’s unsigned work change directive (wdc) compel performance of new work or permit termination of the contract if the contractor rejects the WDc? By: vincent r. cestone, president of marvec construction

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ecently, the American Arbitration Association (AAA) Construction tribunal made an award in a “take it or leave it” scenario of a public owner attempting to compel a contractor to proceed with more than $1.8M of ill-defined work. The new work was initially outlined in a no-cost “Change Order.” The matter involved the third generation of Marvec Construction Corporation, represented by its President Vincent R. Cestone, against a major New Jersey city.

information and proposal, the City’s consulting engineers immediately issued a project suspension (stop work order), and spent the next six weeks redesigning the project.

In mid-November 2009, the City’s consulting engineers issued a letter confirming the owner’s intent to move forward with the re-designed project, including the abandonment of portions of the original scope. Marvec reviewed the new drawings and proposed new and delete work items. It also evaluated the City’s deleted line items. Marvec provided the consulting engineers with additional delete suggestions. In all, $1,800,000 of original work items were agreed to be deleted (45 - Vicent Cestone % of the original contract), and more than President - Marvec Construction $1.8 M of new items were to be added.

“The answer to the titled question of this article is thus unequivocally NO”

The Project involved installation of 3,000 linear feet of 72” – 18” RCP designed to capture and redirect storm drainage within an approximate 8-block residential neighborhood, gunite rehabilitation of approximately ½ mile of multi-sized antiquated brick arch tunnel 22 feet below 18 private residences. Notably, 4 blocks within the 8 were not included due to an existing chamber having outlet elevations too low to enable connection to the new proposed RCP trunk line. Marvec’s low bid awarded price was $4,818,673.00.

The Notice to Proceed was effective August 24, 2009. The balance of the summer months was consumed with submittals, investigative work, administrative coordination with utilities, City and State agencies and the generation of a construction schedule. An agreed-upon construction schedule provided major groundbreaking in early September 2009, preceded by accelerated submittals and project coordination. The most critical phase was construction of the junction chamber and the initial runs of 72“pipe within close proximity to historical register homes prior to the traditional winter shutdown.

Months of negotiation between Marvec and the City’s consulting engineers resulted in potential agreement of an adjusted contract value of approximately $5,200,000. As of the 2009 holidays, unresolved issues valued at approximately $500,000 relating to delay and escalation claims, steel sheeting left in place, etc. remained outside the scope of City’s consulting engineers’ authority to negotiate for the City. In early January 2010, a formal negotiation meeting with the City was held to resolve the remaining items. The City decided to have the contractor and the City’s consulting engineers resolve these items. Marvec continued negotiating its pricing with the City’s consulting engineers and they were within a narrow range of full agreement by mid-February 2010. Marvec wrote to the City requesting the formal change order documents reflecting the agreements, as well as payment for progress payment # 1. Meanwhile, the stop work order was still in effect.

A required function of the Contract was to “verify” all lines and grades of existing utilities on the Contract documents. Just prior to breaking ground, Marvec crews compiled the data and forwarded it to the City’s consulting engineers. Since Marvec’s measurements had uncovered a multi-foot elevation difference at the existing mid-project chamber, Marvec proposed that the four skipped streets could now be integrated into a partial re-design and connected to the proposed RCP trunk-line. Marvec also believed that the City could abandon the brick arch tunnel and fill it with concrete to eliminate of future liability of another collapse in the tunnel under the homes in the area. With Marvec’s

In early March 2010, within hours of its receipt of progress payment # 1, without notice, Marvec received a letter with an attached unsigned document identified as “proposed change modification” (“Change Order”) indicating a proposed “zero” change in value and with a “zero” day extension of time (almost 6 months of contract time had elapsed.) The proposed Change Order included the deletion of certain previously agreed-upon to new/supplemental work valued over $400,000. The proposed Change Order was neither signed by any City representative, nor accompanied by a Council resolution approving the issuance of the Change Order. Marvec immediately communicated to the

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In mid-April 2010, again without prior notice, Marvec received from the City’s consulting engineer a letter entitled “Work Directive Change” (WDC). It almost mirrored the mid-November ’09 letter of partial redesign but the WDC was unsigned and lacked a City Council resolution. The letter further demanded work to commence within two weeks. Another formal meeting took place. The result of that meeting was a “take it or leave it” with an additional substantial requirement: a prohibition of any and all future claims of any character. The City simply presented Marvec with two no-win options: a) the guarantee of a multi-year expensive legal fight to be paid the value of the new project; or, b) have the contract terminated with a surety bond claim. Marvec did not need time to consider. Marvec said NO to the “take it or leave it” and awaited a letter of termination and the surety bond claim. The surety responded to the City supporting Marvec and suggesting that the City complete negotiations and formally issue a change order. The City rejected the surety’s

suggestion. The Project was re-bid using Marvec’s new ideas and subsequently awarded to another contractor. Upon advice from its attorney, Michael O. Renda, Marvec patiently waited for the new work to be completed and the maintenance period to expire so as not to involve the new contractor in any litigation. Marvec’s Contract with the City required all dispute resolution to be resolved by the AAA. Marvec filed its demand for costs, expenses and damages, due to the improper termination of its Contract, as well as sought attorneys’ fees.

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City its rejection of “Change Order” which contained no net change pricing and no extension of time. Marvec further offered in its reply to resolve all outstanding items for about $5,450,000.

Nineteen hearings later, the AAA panel of arbitrators awarded Marvec approximately 90 % of its claim, plus its attorneys’ fees. The award clearly determined that Marvec “was improperly terminated” and the “Work Directive Change” had to have been executed by the City, with appropriate City Council authority, to have been effective. The answer to the titled question of this article is thus unequivocally NO. About the Author. . . Vincent R. Cestone is CEO of Marvec Construction Corporation and related companies. He manages investments and investment properties. He also holds a Bachelor’s Degree in Civil Engineering from Fairleigh Dickinson University.

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By: paul anovick, anovick associates

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very company has a culture. It’s a common set of values and beliefs that your people share. It’s trust in each other, consistency in what you do and authenticity.

Whatever is happening in your culture has direct consequences to the bottom line! Recent headlines have shown the business culture at Uber and Wells Fargo was partly to blame for their crises. And the boards held leadership directly responsible. A suicide bomber kills two Marines in Afghanistan. A video camera discovered afterwards revealed the heroics of the Marines. A truck broke through barriers where the Marines were guarding the approach to the barracks of their brothers. Their mission was “let no unauthorized personnel or vehicles pass.” They had six seconds to live. With their feet spread shoulder width apart, they leaned into the danger firing as fast as they could work their weapons. The truck explodes. The camera goes blank. Six seconds, not enough time to think about anything, but to react and do their duty. The United States Marine Corps is an example of a powerful, successful culture. How does an organization create and develop people like these two Marines? Culture. Great companies come together in tough times. It’s not just a “job,” it’s about doing the right thing and not needing anyone to tell you what that is. Many people can tell you what they do; others can even explain how they do it. Very few can tell you why they do it. Building culture is all about the understanding the why. Five characteristics that successful cultures possess:

1.  Purpose Driven. The connection between purpose and performance is clear. Aligning your organization with a higher purpose drives results. We can find examples in business such as Chick-fil-A. Chick-fil-A has a strong foundation in Christian values; that’s part of their why and they walk the talk by closing their stores on Sunday. 2.  Effective Communication/Transparency. Full disclosure. My wife and I recently attended, Google’s “Take Your Parents To Work Day” with our son. Everyone thinks of Google as having a great culture, but often equates it to the endless free food, napping pods, and a campus that rivals a world-class resort. We saw it reflected at its TGIF event, basically a weekly hands-on with the CEO, Sundar Pichai and founder Sergey Brin. Employees are invited to attend to share their projects, learn and ask questions of the leadership. The

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how to build a sustainable company culture communication is open and transparent. Each employee feels part of the mission and that is what makes for a successful culture. 3.  Feedback. To dramatically improve performance, you must improve the performers. Developing a continuous improvement process using KPI’s, Key Performance Indicators, and your company must commit to growth in order to thrive. Creating a culture of feedback pushes higher levels of performance. It must be given and received safely, clearly and productively. 4.  Teamwork. All of us are better than one of us. Focusing on team accomplishments, rather than individual, encourages collaboration. Working together lets employees build on the talents of their teammates. Relying on other people builds trust, and establishes strong relationships with coworkers. Each member of the team knows their role and goals, clarified to all with specific structure. 5.  Growth, Engagement and Development: High-performing leaders know the effort they put into coaching and mentoring others pays off not only in the productivity, job satisfaction, and career growth of subordinates, but also in their own status within their organization. Professional growth, improvement of skills and knowledge creates life-long learners. Acknowledgment creates a sense their work is worthwhile and makes a difference, a feeling they are valued, accepted and respected. Winston Churchill said “Continuous effort—not strength or intelligence—is the key to unlocking our potential.” Leadership sets the tone for your company’s culture. Identify what is non-negotiable to you. If transparency is important, then your company’s leadership team must be transparent. If you value client service, then it must be front and center with everyone, no excuses; it must be a non-negotiable standard. The failure to execute the core values of the team must have consequences. In the “Manual of Military Law” the offense of falling asleep at one’s post is punishable by death. OK, extreme you say, well think back to the story I shared above. If the two Marines had not been fully alert at their post, the outcome and cost to the unit would have been very different. When you put a flag in the ground representing what your company values and stands for you must be prepared to live it every day. How do you do this? Hold an offsite event. It may seem like a waste of time to managers being pulled in 50 different directions, but it is important. Get employees who you think exemplify the culture you want to build and ask them some questions: What do you like about the current culture? What don’t you like? What is culture, anyway? You won’t define culture by the offsite, but you will know where you are headed, why and how to get there.

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the importance of contractor’s equipment insurance By: ryan scannell, producer, graham company

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f you are a contractor, your equipment represents a crucial asset and investment for your business that needs to be protected. Not only is your equipment valuable, but your business simply cannot run without it. In order for these assets to be properly protected in the event of damage or loss, a specifically tailored Contractor’s Equipment policy is an essential part of any construction company’s insurance program. A Contractor’s Equipment Insurance policy covers equipment and tools often used by contractors to complete a project. These policies are designed to fill the necessary gaps that exist in Commercial Property and Business Auto policies, which typically exclude coverage for property that moves from location to location. Contractor’s Equipment coverage follows the equipment, tools and machinery from jobsite to jobsite. Among other things, the policy provides the necessary protection against perils such as fire, vandalism, theft and flood. In many cases, these policies will also cover equipment that is rented, leased or borrowed.

will properly respond in the event of a loss. Business Income coverage is another enhancement to a Contractor’s Equipment policy that can be provided. For example, let’s say that ABC Paving won a $20,000,000 job to pave a strip of highway on the New Jersey Turnpike. Part of its estimate in preparation for the winning bid took into account the fact that ABC Paving owns an asphalt plant 10 miles away from the job site. The cost of manufacturing and hauling its own asphalt such a short distance was a key factor in ABC Paving winning the job. What if a few days into the project, a fire at the asphalt plant shuts down that operation for eight months? It is preferred that asphalt plants be covered on a Contractor’s Equipment Insurance Policy instead of a Property Policy because a standard Contractor’s Equipment Policy provides broader protection than a standard Property Policy. However, a few key coverage grants should be negotiated into the Contractor’s Equipment Policy to provide protection in this scenario: • The policy should be enhanced to provide coverage for loss of business income for damage to contractor’s equipment, such as an asphalt plant. If a contractor’s owned asphalt plant is shut down and there are other clients beyond that of the contracting business, then the contractor will need this coverage to reimburse lost business. • The policy should also be broadened to provide Extra Expense Coverage for the contracting business as a result of having to purchase asphalt from another provider that may be a further distance to the job site. Any additional costs to keep the project on schedule would be covered as it relates to the asphalt plant fire.

It is important for every insured to carefully review their policy to confirm that it is written to coincide with their specific operations. There may be exclusions and conditions buried within the policy that could negate coverage for a major component of the insured’s operations. For example, a common exclusion found in Contractors Equipment policies is a waterborne exclusion. This problematic exclusion would exclude coverage for equipment that is mounted on or being operated from a barge or watercraft. Therefore, if a contractor has any exposure to projects involving barges or the use of watercraft, their policy will need to be properly amended to include coverage for their equipment while waterborne. It is crucial to work with an insurance broker that understands your business and operations so that your policy

To avoid a situation like the few described above, it is critical that when reviewing the terms, conditions and exclusions within your Contractor’s Equipment Policy, you should look for some of the key enhancements discussed above to ensure that your equipment and business is protected. About the Author. . . Ryan Scannell is a producer at Graham Com-

pany, one of the mid-Atlantic region’s largest insurance brokers. He joined Graham Company in 2015, and focuses on business development for the firm’s construction division. He is responsible for the design and implementation of comprehensive, cost-effective insurance programs and risk management strategies for large privately held companies with complex and demanding needs. Scannell received his Bachelor’s degree in Economics from The University of Delaware.

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society pages

UTCA’s

2017 year in review

Jim Coddington UTCA President 2016/2017

Tom Hardell UTCA President 2017/2018

UTCA Representatives meet with Congressman Pascrell at ARTBA Fly In

UTCA Board Member, Harry Chowansky, and team enjoy a day of skeet shooting at UTCA’s Spring Clay Shoot

UTCA Representatives pictured with Chris Christie at the TTF Bill Signing

2017 Executive Seminar attendees toured the wine cellars of Codorniu Raventos, the world’s oldest producer of sparkling wine

2017 Executive Seminar attendees after a Paella cooking class

Annual Convention Golf Outing - Past President, Jim Coddington and team

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Executive Seminar atttendes enjoyed an FC Barcelona match

Harry Chowansky proudly presents the Local 472 Scholarship to a deserving student

society pages

UTCA representatives meet with Congressman MacArthur at UTCA offices

Gary King of Ritchie Brothers announces Money Booth drawing at UTCA’s Convention

UTCA representatives host a fundraiser for Senator Paul Sarlo

1st Place Women’s team at UTCA recent Clay Shoot evecnt

George Harms Construction’s Foursome at UTCA Fall Golf Outing in Atlantic City

The perennial winning team of Bob Cavaliere, George Maggiola, Carl Bull, Don Fuentes & Dan Culnen now just shoot for fun

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society pages

Dave Smith and his wife Jeanne, meet “Tanto”, UTCA’s Keynote Speaker at the Annual Convention

Executive Seminar attendees were treated to a daytrip to Montserrat, a mountaintop monastery in Catalonia, Spain

UTCA Safety Committee members pictured with Lee Shelby, keynote speaker at UTCA’s Annual Construction Safety Seminar

Dave Smith, Paul Fader, MaryAnn Garcia, Anthony Attanasio and Tino Garcia enjoying the Opening Reception at UTCA’s Annual Convention

Art Holdsworth enjoys his time in the money booth at UTCA’s Annual Convention

Janet Lattimer busy bidding on items at UTCA’s Annual PAC Auction

UTCA representatives welcome Senator Elect Vin Gopal, Senator Joe Kyrillos, Senator Kip Bateman, Senator Bob Gordon, Assemblyman John Wisniewski and Assemblyman Tony Bucco to UTCA’s/United Airlines League of Municipalities Reception

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Utility & Transportation Contractor December 2017  
Utility & Transportation Contractor December 2017