Utility & Transportation Contractor February 2021

Utility & Transportation

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Aspen Landscaping Contracting Celebrates 25 Years

february 2021

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CongTatulations on 25 ,cars in business l\10111!

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Lo,c, Stephanie, Jackie, and Isahella

C&HAGENCY SERVING THE INSURANCE AND BONDING NEEDS OF CONTRACTORS FOR OVER 50 YEARS C&HAGENCY CONSTRUCTION INSURANCE AND CONTRACT SURETY 783 North Riverview Drive• Totowa, New Jersey 07512 P.O. Box 324• Totowa, New Jersey 07511 973.890.0900 • FAX 973.890.9038 E-MAIL: info@chagency.com www.chagency.com

president’s message

From the desk of: dave smith

L

ooking back, 2020 was a tumultuous and unprecedented year. Our country and much of the world faced numerous challenges that usually present themselves once in a decade or once in a generation, but in 2020, we faced them all at once.

Right from the start, there were fires in Australia, fires in the Amazon, and impeachment proceedings. Then in February, COVID-19 brought the world to a standstill and left a deadly wake in its trail.

The worldwide economy was devastated, riots raged in many cities, schools and sporting events were shut down, and the presidential election was hotly contested and tainted with allegations of fraud. As Americans, we faced these challenges all at once, but we found ways to adapt.

Now that 2020 is behind us, we need to work towards unity and focus on the areas where we can find common ground and move forward for the betterment of our state and country.

New Jersey’s gubernatorial election will be held on November 2, 2021. Headlining the election ticket is the race for Governor and Lieutenant Governor, but the entire State Assembly—120 seats—is also up for election. Governor Phil Murphy is seeking reelection, and it appears that former Republican Assemblyman Jack Ciattarelli is the frontrunner to be Governor Murphy’s opponent.

This year, New Jersey will go through a redistricting procedure that might influence a few Assembly district races, but the new legislative districts will have little effect on the gubernatorial race.

From the perspective of the construction industry, this election is essential. UTCA and our member firms must continue to advocate for infrastructure funding and emphasize the economic and environmental benefits it produces, taking into consideration the candidates’ plans and policies for this sector of the state’s economy. Governor Murphy offers a four-year track record; however, we need to hear his plans for the next four years. We can look to former Assemblyman Ciattarelli’s record as an Assemblyman, but we also need to learn of his plans for our industry if elected.

UTCA’s leadership will be meeting with the candidates to discuss these issues in anticipation of the election.

2 Utility & Transportation Contractor | february| 2021

As we pass the halfway mark for NJDOT’s 2021 fiscal year, the Department has had a slow start in implementing its FY 2021 capital program. As we previously reported, UTCA leadership succeeded in convincing the Murphy Administration to fund the NJDOT FY 2021 program with an additional $600 million. While these funds brought the annual program up to $1.3 billion, the Department has been working to catchup its design process to bring the additional projects to bid. To further compound the need for design services, Commissioner Scaccetti, in July of last year, successfully acquired an additional $150 million in other State’s unused FHWA construction funds. Topping this off is the additional $249 million that NJDOT will receive from the most recent economic stimulus package approved by Congress last December. With the Department’s slow start in implementing its 2021 capital program, UTCA’s leadership has been working with Commissioner Scaccetti to accelerate project design and bring additional projects to bid prior to June 30, 2021. To date, the Department has added an additional six projects with a Department value range of $146 million to $355 million. Of the six projects, five are bridge projects, two have a value range of $40 million to $100 million (Rt. 22 Bridge over Rt. 82, Rt. 76 Bridge over Klemm Ave.), and one has a value range of $20 million to $40 million (Rt. 42 Bridges over Blackwood Railroad Trail). UTCA and Commissioner Scaccetti will continue to work together to bring more projects forward.

In closing, I wish you, your families, and businesses health, happiness, and success in 2021.

Best regards,

Dave Smith

CONTENTS

Cover story 40 Aspen landscaping contracting celebrates 25 Years

41

DEPARTMENTS

FEATURES

2 7 15 23 31 49 57

66 j.m. ahle company completes 40 years in business

President’s Message Financial Overview Legal Dig Accounting Corner

NEWS

Legislative News

71 level-funded medical programs

labor relations

77 dam removal: freeing new jersey's rivers

the pipeline

Published Bimonthly During 2021

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: Dan Kennedy, Zoe Baldwin, Dan Neville Advertising Manager: Helene Nasdeo Production/Graphics: Lauren Hagan, Helene Nasdeo 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.

Utility & Transportation Contractor | february| 2021 3

Congratulations to

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J.M. Ahle Company

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Aspen Landscaping Contracting

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www.gardenstateprecast.com

© 2018 Garden State Precast • (732) 938-4436 dmorris@gardenstateprecast.com & gomalley@gardenstateprecast.com

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By: mike meyers, mountain hill investment partners

W

ith 2020 squarely in the rearview mirror, it is nice to look forward to the new year with an opportunity for a fresh start and a clean slate. What goals are you setting for the year and how are you going to achieve them? I have found if you write down your goals and periodically revisit them, you are more likely to achieve them. In other words, document and benchmark your objectives—otherwise, they might as well just be a dream!

2) Formalize the 401(k) Committee:

This year, you may be setting goals to achieve better outcomes in your health, relationships, and business. As a business leader, you are probably thinking about your employees too, and how you can improve their health, happiness, retention, and retirement outcomes. You should be thinking about enhancing their retirement planning as well. If your current 401(k) advisor is not engaging with you and your employees, it is unlikely that you will meet your goals, and it’s time for a new perspective; here is how you can improve your offering in 2021.

3) Review Your IPS:

1) Evaluate Your Advisor: Aside from providing fiduciary support, your plan advisor should also: *Engage the 401(k) committee on a quarterly basis. *Regularly benchmark plan investment options.

This is typically our second action item when working with new clients as most do not have formal committees in place. Committees are typically comprised of 3 to 5 people and include senior members of human resources, finance, and operations. The committee members should be aware that they, too, have a fiduciary responsibility.

Your advisor should be meeting with the committee at least quarterly to review the overall health of the plan.

A 401(k) Investment Policy Statement (IPS) serves as a vital roadmap for the continuing success of a company-sponsored 401(k) plan. It outlines how the plan undertakes its due diligence on behalf of the participants and guides the plan sponsor both in its fiduciary duty and in its monitoring of third-party providers. Essentially, it details the investment goals and strategies for portfolio construction and ongoing management for all fiduciaries associated with the plan. While it is not a legal requirement, the US Department of Labor (DOL), which has enforcement authority for ERISA, has said that having an IPS is consistent with the fiduciary obligations set by the law. As the plan sponsor, you have ultimate responsibility for the investment policy statement, but it is typically the advisor who is responsible for designing it. If you do not have an IPS, we would be glad to create one with you.

*Show up.

4) Examine Plan Health:

*Prove that the 401(k) pricing is fair to your employees.

The health of your 401(k) plan should be reviewed on a quarterly basis; if your advisor has not been engaging you to do that, your plan might be at risk. During quarterly meetings with 401(k) committees, we discuss various metrics that comprise plan health such as the participation rate, savings rates, fund performance, and employee engagement. Plan sponsors can use these metrics to evaluate whether the advisor has been effective at enabling positive changes in the participant experience. In cases where employee participation is low, mandatory group meetings are an effective way to communicate the benefits of participating in the plan. Automatic enrollment can also drive plan participation; this essentially allows the employer to enroll eligible employees unless they affirmatively elect not to participate. It can be a great way to increase participation in your company’s retirement plan, but every plan is different, and each company has its own corporate culture. There is no one-size-fits-all approach.

*Educate and provide financial wellness services to employees.

Financial overview

new year. . . new goals!

5) Financial Wellness and Education: The value of addressing employees’ financial wellness is clear. We are

Utility & Transportation Contractor | february| 2021 7

Financial overview

passionate about the topic and discuss it frequently; it encompasses universal topics such as managing expenses, reducing spending, eliminating debt, and creating savings. PricewaterhouseCoopers (PwC) revealed in its 2020 Employee Financial Wellness Survey that “financial or money matters/challenges” were far and away (at 54 percent) the most common cause of stress among full-time employed US adults. In a previous PwC study, 47 percent of employees said that financial stress either caused them to miss work or has negatively impacted their productivity. Today, employers are viewing financial wellness as part of a broad employee wellness initiative that has taken shape amidst the pandemic. Your financial wellness program, led by your advisor, should go beyond simply making the right choices amongst the fund lineup in the 401(k). For many plan participants, the biggest challenges come from expenses such as paying down credit card debt, saving for emergencies, college planning, and elder care for aging parents.

The new year brings with it an opportunity to put a new set of eyes on your plan. We have been very successful in reducing overall plan

8 Utility & Transportation Contractor | february| 2021

expenses, creating significant savings for employees, and, most importantly, building trusted relationships with management and employees alike. Our firm works as an advisor and co-fiduciary to corporate 401(k) plans, specializing in the construction industry. We work with many UTCA member firms to enhance their 401(k) offering and build education programs designed to engage employees.

We appreciate that each company is unique, and we take the time to understand how you operate before creating a customized plan that is suitable, low cost, high value, and ERISA compliant.

Is it time to put your 401(k) plan out to bid this year?? If so, call me, Mike Meyers, at (732) 291-3338 for more information.

Disclaimer: Mountain Hill Investment Partners is an SEC Registered Investment Adviser. We have a clearing and custody relationship with Fidelity Brokerage Services LLC, Member NYSE/SIPC.

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J.M. Ahle Company Celebrating 40 Years Aspen Landscaping Contracting Celebrating 25 Years Construction & Public Contracting Law Louis Cappelli, Jr., Esq. (856) 853-5530 lcappelli@floriolaw.com

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Adrienne L. Isacoff, Esq. (201) 843-5858 aisacoff@floriolaw.com New ProYidence, New Jersey New York, New York

virtual mediations of construction disputes

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ediation of construction disputes is used routinely in the commercial and public spheres. In the private realm, the AIA contract series and other similar contract templates typically include mediation as a default. In the public sphere, New Jersey Local Public Contracts Law, N.J.S.A 40A:11-1 et seq mandates some form of alternative dispute resolution. Typically, municipalities prefer to meet this requirement by including a mediation clause in their contracts while preserving the right to litigate disputes. The New Jersey Superior Court mediation program also requires mediation of most construction disputes, and New York and Pennsylvania have mediation programs as well. With the COVID-19 pandemic slowing trials, this method of resolution is welcomed to a larger degree than in the past.

The pandemic’s effect on the mediation process has been dramatic, although it has not slowed down the number of cases.

Typically, one of the benefits of mediating is the ability to “size up” both counsel and witnesses in the live mediation session.

Some of that benefit is lost in the virtual format, but other advantages remain. Even if the proceedings do not result in settlement, each side gains insight into what it will be like to be cross-examined in court, how knowledgeable they are about points raised by the adverse party that they might not have anticipated, and how a neutral party (the mediator) might view the strengths and weaknesses of each side’s positions. The parties also have an opportunity to be provided with discovery, potentially early in the litigation process before formal discovery has been initiated; this may be cost-saving.

Initial Conferences Often the mediator and attorneys use the virtual format to expand the pre-mediation session communications, laying groundwork and engaging in substantive discussions of factual and legal issues before the actual mediation. Document demands might be discussed in the first session, and then another virtual meeting might be scheduled to allow the attorneys to educate the mediator further. Only then does the actual mediation session—in which the parties are invited to attend—take place. This allows the parties to dive in more fully to the matters that are in dispute.

Legal Dig

By: adrienne isacoff, esq., florio, perrucci, steinhardt, cappelli, Tipton & Taylor LLC

The Joint Opening Session There are still good reasons to have an opening joint session. Often the decision-maker for the other party has not heard your or your counsel’s arguments. Conversely, your own attorney might not have wanted to be completely upfront about some weaknesses in your case. The opening session is your chance to talk directly to the other decision-maker and for you to hear the other party’s best arguments.

Engaging in a discussion when there are several people in one virtual room, each of whom wants to talk, presents new challenges, especially when matters get heated. The mediator needs to take charge of the situation, ensure that everyone is on mute when not speaking, and allow responses in an orderly fashion so that everyone can be heard—and, hopefully, everyone can listen! The mediator should also establish certain security measures before the virtual joint session takes place, such as the use of passwords; requiring an agreement not to record the session; and requiring that all attendees be identified prior to the session and be introduced at the session.

Holding opening sessions on a virtual platform offers advantages for demonstrative exhibits. You have the opportunity to screenshare exhibits so that the mediator and other party can focus on the documents as you are explaining their significance. A critical photograph, contract clause, or letter may have a far greater impact under these circumstances. Your attorney and any assistants such as paralegals or IT personnel should be thoroughly familiar with the ability to screen-share documents prior to the session.

The mediator may request a brief practice session a few days before the actual session to anticipate and resolve any technical glitches. You should, however, provide a hard copy of any neces-

Utility & Transportation Contractor | february| 2021 15

sary plans to the mediator in advance of the mediation session.

Certain key documents should also be provided to the mediator in advance of the session along with your attorney’s mediation statement.

Legal Dig

Break-Out Sessions The mediator will conduct private discussions with the parties in virtual break-out rooms, which fulfill the role of separate conference rooms in an in-person mediation. The parties may choose to send only the person with authority to settle, reserving the option to call in others as needed (e.g., the project manager), but without the restrictions of shared physical space, it may be beneficial for all individuals with first-hand knowledge of the project to participate in virtual break-out sessions. Sometimes those individuals can spot factual discrepancies or are willing to admit a weakness in the case to the owner of the company in the privacy of a break-out room. Both of these scenarios can be important for analyzing settlement options. However, in advance of the hearing, the mediator should require the parties to identify all individuals who will participate so that the adverse party is aware of their attendance, and the attorney for each party should identify all participants at the beginning of the session.

16 Utility & Transportation Contractor | february| 2021

Closing At the conclusion of a live mediation session, the participants might need to get home or even catch a plane, but with virtual sessions, it is possible to hold another session if it seems worthwhile without having everyone return to the mediator’s offices for another session.

Conclusion The changes that virtual mediations have brought will likely not affect whether a case will settle, but you should bear in mind the differences in the format—the good and the bad—when you prepare for the virtual session.

Adrienne L. Isacoff, Esq., serves Of Counsel in the firm of Florio, Perrucci, Steinhardt, Cappelli, Tipton & Taylor LLC, and serves as an arbitrator and mediator for the American Arbitration Association and the New Jersey Superior Court mediation program.

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2020 will leave its mark on 2021 business strategies By: jack callahan, cpa, national leader, cohnreznick construction practice group

CARES Act While offering financial relief through payment deferment of the employer portion of Social Security, the most impactful provision of the CARES Act was Paycheck Protection Program (PPP) loans. Contractors with fewer than 500 employees impacted by COVID-19 were eligible to receive these powerful loans, which were based on a formula of 2.5 times an average monthly payroll up to $10 million.

Construction was the third largest industry sector granted PPP loans. These loans contain a provision that, if a contractor can show that the loan proceeds were used for specified costs in an 8- or 24-week period, the entire loan could be eligible for forgiveness. These 24-week periods have mostly expired, and forgiveness applications must be submitted to the lending bank.

While we have seen some loan forgiveness granted by a bank and affirmed by the Small Business Administration, most contractors are still waiting for their loan forgiveness.

The roll-out of guidance for the forgiveness component of PPP loans has been confusing, although we have recently received some clarification on the tax treatment of loan forgiveness. In the latest COVID-19 relief package signed by the President in December, Congress confirmed that the forgiveness will not be taxable. Moreover, it reversed an IRS position and affirmed that the expenses covered by the loan forgiveness will be tax deductible. This clarification alleviated a great deal of confusion over PPP loan forgiveness—a major benefit that is welcome during this critical time.

The Economic Necessity Questionnaire (ENQ) has been a much-debated issue and remains uncertain. When submitting a PPP loan application, a contractor needed to certify that they had been impacted by COVID-19. There was a subsequent question and answer process that resulted in a heightened determination of impact and economic uncertainty. Banks now have an

ENQ that must be completed by all contractors with loans of $2 million or more filing for loan forgiveness. Through lobbying by the AGC and other contractor trade groups, there has finally been clarification on the use of these questionnaires. How the SBA will use the data from those responses and how the responses will impact loan forgiveness is still uncertain. My advice is to proceed with caution when completing the questionnaire and forgiveness application. Also, be sure to consult with your core team of trusted advisors.

Financial Statements and Audits Financial Statement treatment of PPP loan forgiveness is another important issue. The accounting standards body provided guidance that these loans should be reflected on the books as a liability until they are formally forgiven by the SBA. Since most loan forgiveness applications have not been finalized, many companies will have a short-term loan reflected on their year-end financial statements. I am confident that the banks and sureties will fully understand the nature of these loans, look to disclosure the loan’s subsequent forgiveness in assessing a contractor’s financial condition, and expect the loan forgiveness to be reflected in the subsequent year. However, I am not as confident about how these loans will be treated by state prequalification agencies.

The impact on working capital, and thus on the bidding capacity of a contractor, could be significantly impacted. Not surprisingly, some contractors and their accountants have sought to classify PPP loans as grants instead of loans. The Accounting Standards Board applies a more liberal treatment to grant forgiveness, allowing a grant to be reported as forgiven if “more likely than not” criteria are met. We are still waiting to see if the SEC comes back with comments for those publicly-traded contractors who have used this treatment for interim reporting. We expect more clarification on the accounting treatment before statements are finalized for issuance.

Accounting Corner

I

t is difficult to comprehend fully the impact of the events of 2020, let alone set forth a vision for 2021. The full effect of the pandemic, the election, and other world events on the business community is impossible to gauge. Therefore, my focus here will be on assessing how 2020 occurrences might have implications for your financial statements, tax returns, and business planning strategies going forward.

What we—as your auditors and accounting departments—have had to contend with is the new reality of performing audits with restricted access to our clients’ offices and job sites. We have needed to adjust our risk assessments and have been challenged in our efforts to perform all essential audit procedures and then document those procedures. Despite having an arsenal of outstanding technical tools, working remotely has required a new approach to audits.

Utility & Transportation Contractor | february| 2021 23

Last year, we had already begun many of our audits prior to the pandemic’s onset, so the impact was less significant as we were down to wrapping up and reporting. This year-end, we will face a full audit cycle with restricted physical client interaction. Be sure you meet with your auditors to be certain you understand their approach, timing, and the impact that this new process will have on your staff and the timing of your audits. This is new for all of us, and we will work through it. Frequent communication and a commitment to technology will be required. Your accounting staff must be vigilant in its process of checks and balances.

Accounting Corner

Looking Ahead One of my priorities is to keep my focus on the horizon. Last year, we were experiencing strong tail winds and seeing much promise while remaining cautious about the unknown “Black Swan.” The Black Swan of 2020 appeared in the form of a pandemic. The strong backlog did carry most of you through a solid 2020, but what lies ahead for 2021 and beyond is much less clear.

It is no secret that the state of New Jersey along with all its agencies and municipalities have experienced great financial strain with no short-term recovery in sight. The impact of this has already been felt in a slowdown of existing contracts and projects coming out to bid. Last December’s COVID-19 recovery legis-

24 Utility & Transportation Contractor | february| 2021

lation provided funding to state agencies such as the DOT, to airports, and to water and energy projects. That said, a change of administration has historically created a lag as the former administration’s initiatives will be refocused to those of the new administration.

Certainly, New Jersey hopes to have much more cooperation from the incoming administration than from the prior. Time will tell if the large infrastructure initiatives will get the attention needed to speed economic recovery. What is clear with the naming of Boston Mayor Martin Walsh as Labor Secretary is that the incoming President is signaling that he will keep his promise of being the most union-friendly president ever. How this will impact New Jersey utility work will be interesting.

Events such as those that occurred at the Capitol suggest that 2021 will be a year of uncertainty and change. To best prepare for this, meet with your internal management team. Talk to your external team of trusted advisors. Assess where your company stands from a workload, labor, and technology position. Analyze the various options you have that can help you prosper through this period of change. With all that happened in 2020, there were still some big winners. Take the necessary steps now to help your company be one of those big winners in 2021.

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T

SPEAKING OF STIMULUS In one of his first actions of 2021, Governor Murphy signed a $14 billion corporate tax incentive program that replaces controversial economic development programs that expired 18 months ago. Under the new law, up to $1.5 billion in tax breaks could be awarded annually for six years.

The new package, while criticized for being rushed, will make it more attractive for companies to build in New Jersey, rehabilitate historical sites, clean brownfield properties, and invest in urban areas.

CLEARING THE WAY UTCA-led legislation to facilitate funding for local transportation projects has passed the Senate. S767/ A4552 (Gopal/Houghtaling) would eliminate a five percent down payment requirement for projects involving New Jersey Infrastructure Bank transportation projects. This down payment is not required on the water side of the program, and Senator Gopal’s legislation levels the playing field to facilitate opportunities in more communities. The bill now awaits a committee hearing in the lower house.

BUILDING ON SUCCESS UTCA is also tracking two bills that would expand the scope of I-Bank programs to include aviation and, separately, climate change resilience.

Assemblyman Daniels has advanced legislation to expand the purview of the transportation side of the I-Bank to also finance aviation and marine projects, as well as make it easier for the NJIB to provide emergency, relief, or disaster loans to clean water, drinking water, or transportation projects in the event of an emergency like the COVID-19 pandemic. A5057 has passed the full Assembly and is now awaiting committee hearing in the Senate. The I-Bank is one of New Jersey’s most efficient and successful programs, and this expansion will help facilitate projects statewide.

Similarly, Assemblyman Karabinchak recently introduced

A5196, which would create a new bond program within the New Jersey Infrastructure Bank to finance climate mitigation and adaptation projects.

Possible projects could include sea barriers, water storage systems, or the relocation of at-risk public infrastructure, among others. The program would be capitalized through a $0.0003 per-kilowatt hour charge on electric utility bills and through the sale of New Jersey Climate Bonds.

ON THE WATERFRONT UTCA water infrastructure priorities are also seeing progress in the Legislature. In early December, the Assembly Special Committee on Infrastructure and Natural Resources heard the following bills, all of which reflect stated UTCA water infrastructure priorities: • A2200 - Requires water purveyors to conduct, and report to DEP, water loss audits • A4825 - Revises cybersecurity, asset management, and related reporting requirements in "Water Quality Accountability Act"

Legislative News

hankfully, we’ve made it through 2020 and the new year is finally upon us. As an industry, we are incredibly grateful to have been able to keep working through the worst of the shutdown, and we now look forward to regaining a sense of normalcy as 2021 commences. While the Federal government is right now largely focused on COVID-19 relief and stimulus, New Jersey is gearing up for an election year in which both houses of the Legislature and the Governor are up on the ballot.

• A5015 - Reduces allowed diversion of funds from stormwater, water, and sewer purposes to municipal and county budgets; requires municipalities and counties to notify Division of Local Government Services of diversions UTCA is pushing hard to increase funding at all levels of government by supporting rate mechanisms that accelerate the work of investor-owned utilities. We are also focusing on reforms to create a more structured process to ensure accountability and transparency. We maintain that by instituting a more transparent and cyclical statewide planning process (along with a corresponding annual capital program), more work will be available for the construction industry.

Additionally, we were successful in obtaining a budget line item in FY21 for water infrastructure projects and are renewing that advocacy for the upcoming FY2022 budget cycle.

PREVAILING WAGE CERTIFICATION S2414/A4869 (Singleton/Wirths) As currently drafted, the bill would require a firm whose low bid is 10% lower than the next lowest bidder to “provide proof to the satisfaction of the public body that the

Utility & Transportation Contractor | february| 2021 31

Legislative News

prevailing wage . . . shall be paid.” UTCA opposed the bill in committee and requested amendments. After conversations with the sponsors in both houses and a joint call with the NJ Associated Builders and Contractors, Senator Singleton has stated he is open to amending the bill to state that a contractor shall sign an affidavit that they intend to pay the prevailing wage. As of this writing, we have not yet seen draft language, but will keep you updated as the conversation progresses.

DESIGN BUILD A1285/S2874 (Greenwald/Singleton) Legislation to enable design-build procurement across local and state government continues to advance. UTCA worked with Assembly Majority Leader Lou Greenwald as well as other partners on this legislation and expect the measure to pass early this year.

This would be an invaluable procurement tool for our state, especially now, when we need to make the most out of every state dollar.

ECO-FRIENDLY CONCRETE A4933/S3091 (Burzichelli/Addiego) As initially drafted, this legislation would have required all state and local entities to establish purchasing preferences in bids for unit concrete products that utilize carbon footprint-reducing technology. In advance of a recent committee hearing, UTCA worked with the sponsors on amendments that removed all references to bidding and preference, replacing that language with a directive for state departments and local entities to include a line item in the specifications in the event that an owner wants to use the product. Similarly, our partners at the Concrete Association were able to clarify that “unit concrete product” shall not include ready mix concrete, sand, stone, gravel, or bituminous concrete or asphalt.

Please consider supporting the UTCA PAC, Constructors for Good Government UTCA continues to be a leading voice for the infrastructure construction industry 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 and more importantly, by supporting the industry PAC: Constructors for Good Government. We will be reaching out to you shortly and hope you will consider contributing as a robust PAC greatly strengthens our voice. Thank you for your continued support.

2020

"Constructors For Good Government" PAC Club Contributors President’s Club

J. Fletcher Creamer & Son Crisdel Group D’Annunzio & Sons Earle Asphalt George Harms Construction Montana Construction Mount Construction Northeast Remsco PKF Mark III South State Union Paving & Construction

Ambassador’s Club

M.L. Ruberton Construction Schifano Construction Traffic Lines Zone Striping

Leadership Club

Anselmi & DeCicco B.Anthony Construction Black Rock Enterprises JRCRUZ Corp Petillo Inc. Smith Sondy Asphalt Construction

Platinum Club

James J. Anderson Construction Bayshore Recycling C&H Agency Flanagans Contracting Green Construction HBC Company Hoffman International Metra Industries Sa & Sons VIP Contractors Yonkers Contracting

Gold Club

J.A. Alexander Brent Material Garden State Precast Jesco New Prince Concrete Construction Prismatic Development Corp.

Skoda Contracting V.A. Spatz & Sons Stavola

32 Utility & Transportation Contractor | february| 2021

Silver Club

B&W Construction Berenato Contractors First Montgomery Management J.C. MacElroy Mathis Construction P.M. Construction Top Line Construction United Communities

Bronze Club

AJM Contractors Bil-Jim Construction Capital Steel Service Coppola Services Patrick DiCerbro Griffin Engineering ICON Ritacco Construction

Special thanks to those firms that supported our Industry PAC in 2020!

• Safe roads, bridges, trains and tunnels • Healthy water and sewer systems • Modern energy, including solar, wind and natural gas

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Attorneys at Law

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The members and staff of Hedinger & Lawless LL C. offer our congratulations to Aspen Landscaping Contracting, Inc., for its 25 years of valuable service to the construction industry and the UTCA. Keep up the good work!

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CONGRATULATIONS J.M. AHLE COMPANY on your 40th Anniversary ASPEN LANDSCAPING for celebrating 25 successful years in business

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Cover Story

aspen landscaping contracting celebrates 25 years By: zoe baldwin

F

ounded in January 1996, Aspen Landscaping Contracting Inc is a multi-service, multi-state M/W/S/DBE firm specializing in everything from planting, wetland mitigation, erosion control, hydroseeding, and railroad spraying to landfill work, irrigation, and tree clearing. Their story, and that of its owner Maria Fuentes, is one of hard work, perseverance, and community.

In 1967, Maria and her family immigrated to the United States from Cuba with only the clothes on their backs. She went on to graduate from Rutgers University with a Bachelor of Arts in Business. Maria began her career in the telecom industry, working for five years at AT&T and ten years at Motorola as an Account Executive before branching out into landscaping. One of her accounts, Emil Solimine of EMAR, represented several contractors. Through that relationship, Maria was introduced to the construction world and discovered the growing niche available to minority and women-owned small businesses.

"I became familiar with the construction industry and the DBE program," Maria tells me. "My competitor, VIP Contractors, was originally my customer at Motorola. They were the largest at the time, and I watched Jackie and Joe Tomasella grow the business through the years. The more I got to see, I realized that as a minority woman, I could do something similar. I started researching and realized the work was all spec, meaning I didn't need a horticultural background."

Maria spent three years working at Motorola full time while building Aspen. Her two oldest daughters, Stephanie and Jackie, were both under two years old while Maria worked around the clock to bid small jobs and establish herself with prime contractors. "It was undeniably too fast and nerve-wracking in the beginning—I had two little ones, was still employed elsewhere, and was working at Aspen cold-calling contractors. It's a risk for a contractor to try a new sub, but slowly I was able to convince them to give me small jobs and let me prove myself. It took a while to develop a work-in-progress schedule and start getting jobs, but I became a DBE, which helped me substantially.”

40 Utility & Transportation Contractor | february| 2021

Maria A. Fuentes, President of Aspen

After being in business for about six months, Maria received a call from Laborers Local 472 to say that a superintendent had just left another construction company and was looking for work.

"They sent over Frank Cunha, who was a superintendent with over 20 years of experience in the landscaping industry. Frank was seasoned and experienced with all entities in NJ, and without him, we never would've gotten off the ground. He trained and recruited our employees, and that's what started to lay the foundation of Aspen," Maria recalls.

Frank's arrival helped get the gears in motion and set the stage for Aspen's next big move—bidding a job as the prime contractor. In 1998, NJDOT reached out to Maria and asked her to bid on a $1.6 million project on Route 78, where the landscaping was the majority of the contract. The NJDOT had only received one response and would've had to rebid the job if Aspen hadn't come forward. Maria was very nervous at the prospect of serving as the prime contractor, but the team at NJDOT was very encouraging and ultimately convinced her to move forward.

"I went to get ready to bid, and NJDOT called to say I needed a bond," Maria recalls. "The only issue was that meant coming up with more collateral. I turned to my parents, who put up their home as collateral in order to increase the line of credit so that I could bid work as a prime. Without my parents taking the risk of losing all their assets for the second time, there would be no Aspen today."

Her success on the Route 78 project, followed by another on Route 3 in Clifton, gave Maria the full confidence to move ahead and not look back. Almost three years later, she retired from Motorola and committed to Aspen full time. In those early days of the Company, Aspen stuck mainly to NJDOT, Port Authority, NJ Turnpike, and Garden State Parkway projects. They excelled at

hydroseeding, planting, and hardscapes, before branching out into wetlands, irrigation, and tree clearing.

By the mid-2000s, increased competition had slowed work in New Jersey, and Aspen started venturing into New York, where more opportunity arose. That move presented its own challenges, and as Maria points out, "As a subcontractor, there are always logistics that need to be worked out."

"It wasn't particularly intentional," Maria remembers. "I saw a project, brought in my team, and met with vendors. I had a supervisor here that grew with the company and was able to guide our project managers. As Aspen grew, I was able to continue purchasing equipment and rent as well. We added trucks and yellow iron, but the mitigation work looked a lot like the work we were already doing, so it wasn't too big of a stretch."

Aspen continued until 2018 when Maria and her partner had a falling out, and Maria took full control of the company. "Some people in the industry kind of raised an eyebrow at me, and I felt like I had to convince them I knew what I was doing," she says.

"But really, it's about managing the projects, managing the employees, and gaining control of what you have."

As the partnership dissolution process became increasingly contentious, Maria had to confront a number of obstacles that at some points seemed insurmountable. A superior court judge limited her working hours to just 20 hours a week for almost three years. Maria was faced with the difficulty of managing a company within these limitations or filing Chapter 11 bankruptcy.

As Maria explains it, "The construction industry cannot be managed remotely. I went ahead and did the reorganization and filed Chapter 11 to preserve the value of Aspen during the process we were going through as part of the separation from my former partner."

Pugsley Creek, Queens, NY.

It took three years of hardship, but through diligence and the support of her family, friends, and community, Maria overcame.

"During that difficult transition, there were days where I was just exhausted from work, but I still had to come home and be a mom to my daughters with a smile on my face. It was really hard sometimes," Maria says. "I started reading a lot and came across a quote from Napoleon Bonaparte that has always stuck with me.

'Courage is not having the strength to go on, it is going on when you don't have the strength.'"

Cover Story

Despite the challenges, Aspen was able to land several projects with the New York City Parks Department. Those projects had a greater complexity level, and Aspen was learning and gaining experience at a quick pace. They continued bidding projects in both states and expanded into wetlands and landfills.

And that type of courage is exactly what Maria was able to muster. In May of 2020—six months after filing—Aspen came out the other side of the bankruptcy proceedings. "I received a lot of support from my family and friends. I'm so fortunate to still have my parents with me—they're 87 years old—and they kept saying, 'Look forward; stay positive; be honest,' And I did." Maria also attributes this quick turnaround to her bankruptcy lawyer, Richard Trenk.

"Richard is one of the most intellectually tenacious people I have ever met," Maria tells me. "He was unbelievable and ethical. In federal court, Judge Papalia acknowledged how hard I worked to put Aspen and its employees before myself. I could have just shut down, walked away, and let the bonding company come in and take over, but I truly felt an obligation to the company, employees, and my daughters. I started Aspen, so I knew what it would take to save it. Against all odds, we're still here, and I'm very proud of that."

Just as she was able to lean into the construction community when she began her business, she leaned into it once more to keep it afloat. "I was working for D'Annunzio and Sons, Anselmi & DeCicco, and Conti Construction, all at Newark Airport. They were my first calls because they were my largest jobs, and I just reassured them that I was here to stay. I had a lot of wonderful people there for me." She also thanked Sax accountant Michael Curry, consultant CFO Robert Aitkens from Exarca, David Lipari of Hedinger & Lawless, and Ronald Tobia for their tenacity, moral integrity, and character.

Some office and field staff standing in front of '2000 Hydroseeder, we are grateful for our employees.

Utility & Transportation Contractor | february| 2021 41

Cover Story

"I go above and beyond for customer service, and that's really what started me. Those morals and principles are what helped Aspen grow in the industry, and I want to go back to those same basic values. I'm always concerned about the Company's reputation and have been working hard to rebuild that."

Then, right in the middle of these ongoing challenges, the COVID-19 pandemic hit. In early April, Maria learned that one of her employees, Jaime Grande, had passed away from the virus.

"My heart sunk. He had been laid off for the winter months and hadn't returned for the spring season yet. I met all of the 472 Laborers at the end of the day. The men were shaken. I reassured everyone that if they didn't want to come back to work or didn't feel safe, it was okay. Some employees stayed home for a few weeks as they were at higher risk or frightened, so I did the jobs I could with the employees I had until one by one they started coming back to work."

Maria is grateful Aspen was able to keep working during the pandemic, even though it meant navigating different work rules in each state. For example, in New York, they were only allowed one person per truck, which significantly increased expenses. "At one point, the City tried to implement guidelines that only one man could plant a tree. You can't do that—someone could get hurt!"

Maria points out. "COVID was new to everyone in the industry, and it was especially difficult with the daily changes to the rules in each state."

Now, with a vaccine being rolled out and the end of the pandemic hopefully in sight, Maria looks to continue rebuilding and regrowing the firm she poured her blood, sweat, and tears into for the past 25 years. "Luckily this year, the weather at least has been on our side, so I've been able to keep working when most years I'd be shut down by now. I have crews right now at a golf course in New Jersey, Newark Airport, and New York City."

She looks forward to refocusing her work on this side of the

Laguardia Airport, before picture of Deck Extension Wetland Mitigation Project.

Hudson River and is grateful she has been recertified as a DBE. "Even though we're through the worst of it," she laments, "it still has its challenges. I'm currently working without a line of credit, and after Chapter 11 everything is COD. I’m thankful to have work and that we’re rebuilding. I'm generally a $15-17 million a year company, and I'm looking to get back to that. I'm honored Aspen survived."

Maria truly feels that her employees, network, family, faith, and the UTCA helped guide her through the most challenging times.

"It's all about a few basic things: having courage, staying focused, building relationships, and going back to the fundamentals. Life is too short; all you can do is move forward.”

UTCA congratulates Maria and the Aspen Landscaping Contracting team on the past 25 years and looks forward to celebrating their next quarter-century of success.

This article is dedicated to Maria's parents, Julio and Marcela Hernandez, and Frank Cunha, all without whom Aspen would not have been possible.

Temporary irrigation directed by Mark Canzano at Pugsley Creek.

42 Utility & Transportation Contractor | february| 2021

Congratulations to Maria Fuentes and Aspen Landscaping Contracting Celebrating 25 Years of Success Kerri Wright, Warren Martin Jr., and the entire Porzio Team Porzio pbnlaw.com

RITACCO ----------

CONGRATULATIONS Aspen Landscaping and J.M. Ahle

10 Lawrence Street Belleville, NJ 07109 (973) 751-4848 www.Ritacco.com An Equal Opportunity Employer

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Celebrating 40 Years in Business

"Advising/or today, insuring/or tomorrow" 6 Leigh Street Clinton, NJ 08809 908-7�711

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McMANIMON •SCOTLAND• BAUMANN With its roots in public tinance and redevelopment law, McManimon, Scotland & Baumann, LLC has a diverse team of SO attorneys offering innovative, effective legal solutions across the following practice areas: Restructuring and Bankruptcy, Real Estate, Litigation, Corporate, Environmental, Tax and other matters

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the u.s. department of labor's new rule clarifies employee and independent contractor status under the fair labor standards act By: ronald l. tobia, esq. & othiamba n. lovelace, esq.

O

n January 6, 2021, the U.S. Department of Labor (USDOL) announced a final rule clarifying who is an “independent contractor” and who is an “employee” under the Fair Labor Standards Act (FLSA) and subject to its requirements. The USDOL’s final rule draws on the knowledge its staff gained by examining decades of court opinions and numerous State laws regarding the classification of workers as employees versus independent contractors. Over the past few decades, this issue has caused tension between politicians who support liberal worker-driven policies and politicians who support conservative entrepreneurial-focused policies.

Realizing that the States have been unable to find a uniform resolution to the independent contractor versus employee debate, the USDOL has stepped in by announcing its new rule that establishes a clear standard that should be used by employers to determine whether to classify a worker as an independent contractor or as an employee. While formulating this rule, the USDOL tried to strike a delicate balance between extending the protections offered to employees by the FLSA and encouraging the entrepreneurial spirit that motivates many workers that choose to be independent contractors.

After reviewing comments from over 1,800 individuals and organizations and analyzing decades of legal decisions that encompass various stances on the debate, the USDOL developed the

The economic reality test considers whether a worker is in business for himself or herself (independent contractor) or is economically dependent on a putative employer for work (employee) by examining two core factors—namely, the nature and degree of the worker’s control over the work and the worker’s opportunity for profit or loss based on the worker’s own initiative or investment. The test identifies three other factors that can serve as further guideposts in the analysis: the amount of skill required for the work; the degree of permanence of the working relationship between the worker and the potential employer; and whether the work is part of an integrated unit of production. The rule also advises employers that the actual practice and general way the work is performed by their workers is more relevant to the economic reality analysis than what may be contractually or theoretically possible.

The final rule works to simplify compliance for businesses and aims to improve conditions for workers. The USDOL believes that by restructuring and clarifying the test to classify independent contractors, they can reduce the total number of workers who are misclassified. The improper classification of workers will still be vigorously prosecuted by the USDOL, and the State of New Jersey has also recently made a push to crack down on the intentional misclassification of workers by increasing the administrative penalties that can be assessed against employers for such offenses. For example, the Commissioner of New Jersey’s Labor and Workforce Development ("Commissioner") now has the power to issue a penalty against an employer in the amount of $250 per misclassified worker for first-time violations and $1,000 per misclassified worker for subsequent violations. Additionally, the Commissioner has the power to post the name of any person or entity (including, but not limited to, a company corporate officer or principal, corporations, contractors, and subcontractors) found to be in violation of any state wage, benefit, or tax law on the internet for public inspection.

Labor Relations

Recently, this issue has gained prominence on the State level due to the rapid rise of internet-based ridesharing companies that consider their drivers to be independent contractors. For example, last year California passed a law that changed the classification of drivers for the prominent ridesharing companies to employees rather than independent contractors. However, the status change caused a public outcry from the independent contractor community because the changes placed significant economic pressure on workers who were traditionally considered independent contractors such as artists, photographers, and freelance writers. The independent contractor community expressed concerns that the status change deprived them of their ability to control their profits and losses and restricted their ability to create flexible and innovative work schedules. As a result, the California law was eventually modified in November 2020, and those workers regained their status as independent contractors.

“economic reality” test, which essentially poses this question: does the worker depend on a business or entity for the opportunity to work, or is the worker essentially in business for him or herself? The former is an employee, the latter an independent contractor.

The final rule issued by the USDOL becomes effective on March 8, 2021, and its clarity will hopefully make it easier for employers

Utility & Transportation Contractor | february| 2021 49

to properly classify their employees while respecting the desire of workers to have work autonomy and individual entrepreneurialism. Moving forward, in order to avoid potential fines and penalties, employers should take time to examine their current worker classifications to ensure that their independent contractors satisfy the economic reality test by, for example, maintaining a file for each independent contractor that identifies the legal name and address of the independent contractor’s separate business entity, invoices for the work performed by that contractor, and all written contracts that describe the duties and services provided by that independent contractor.

Labor Relations

If you have any questions about the topics raised herein or about any other labor relations matter, please do not hesitate to contact the attorneys at Tobia & Lovelace Esqs., LLC at 973-746-6000 for further information.

50 Utility & Transportation Contractor | february| 2021

Congratulations J.M. Ahle Company celebrating 40 years in business &

Aspen LJlndscaping Contracting celebrating ZSyears in business GU/DERAIL

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Heavy and General Construction Laborers' Union

Joseph P. Madden Building 700 Raymond Boulevard Newark, New Jersey 07105 Phone:973-589-5050 Fax:973-589-0582

Affiliated with: New Jersey State AFL-CIO New Jersey State Building and Construction Trades Council Parent Organization: Laborers' International Union of North America

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Tony Oliveira, Business Manager Mike Testa, President, Business Agent Manuel Amador, Jr., Vice President, Business Agent Luis Recio, Recording Secretary, Business Agent Jerry Isabella, Secretary-Treasurer, Business Agent Michael Giunta, Sergeant-At-Arms, Business Agent Dennis D'lmperio, Auditor, Business Agent Robert Campos, Auditor Derek Brooks, Auditor, Business Agent Pat Mancini, Executive Board, Business Agent Donald Cooper, Executive Board, Business Agent

Congratulations to Aspen Landscaping Contracting WORK JURISDICTION: DRILLING, BLASTING, ROADS, SEWERS, BRIDGES, UTILITY WORK, PAVING, TUNNELS, DAMS, HAZMAT, EXCAVATIONS, CONCRETE WORK ON HEAVY AND GENERAL CONSTRUCTION TERRITORIAL JURISDICTION: COUNTIES: BERGEN, ESSEX, HUDSON, HUNTERDON, MIDDLESEX, MONMOUTH, MORRIS, PASSAIC, SOMERSET, SUSSEX, UNION, AND WARREN

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* Grout injection repair of manholes, mains & laterals, 4" to 48" * Manhole, wet well & catch basin rehab and relining * UV CIPP trenchless lateral to main rehab * Trenchless UV & CIPP spot repair * Mainline CIPP lining, all sizes * Large diameter, centrifugally cast geopolymer relining Certifications

* All personnel are confined space certified & HAZWOPER trained * Fully Insured, Bonded, Public Works Certified, NJSBE, UTCA member, NASSCO certified

NAP WOULD LIKE TO CONGRATULATE ASPEN LANDSCAPING CONTRACTING 25 YEARS IN BUSINESS

J.M. AHLE COMPANY 40 YEARS IN BUSINESS

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HEAVY HIGHWAY AND SITE DEVELOPMENT CONSTRUCTION

Congratulations to J.M. Ahle Company on completing 40 Years in Business And Aspen Landscaping Contracting celebrating 25 Years.

111

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will the incoming biden administration prioritize water infrastructure?

By: dan kennedy, director of environmental & utility operations

C

ongress ended 2020 with no major increases for the EPA’s primary water infrastructure programs. The 2020 omnibus package signed by outgoing President Trump does not contain an increase for either the Clean Water or Drinking Water State Revolving Funds (SRF) from Fiscal Year 2020 levels.

Protecting water has long been a top priority for the American people, independent of political affiliation. In regular polling of environmental issues, water pollution and the safety of drinking water are routinely the top two issues of concern among Americans. “Infrastructure” has been a rallying cry during campaign season with results being far less than promised. We have essentially been (pun intended) treading water.

UTCA members are right to ask about the outlook for the incoming Biden-Harris Administration as it relates to bold infrastructure initiatives. At the federal level, we have heard a lot of talk on both sides of the aisle in terms of more work for water infrastructure. At the state level, we have seen some improvement—but not enough. Residents clearly want safer tap water to drink and cleaner natural water bodies for recreation, but lawmakers at all levels of government must come to the table. The primary way to achieve this end is through funding construction projects and streamlining the approval of projects so that our members can bid on these opportunities on an even playing field. Talk without action will not get the residents what they seek nor garner results for UTCA members. No one wins.

CWCC Role The Clean Water Construction Coalition (CWCC) is a nationwide organization of infrastructure construction associations that have come together to improve water and wastewater infrastructure by supporting federal legislation and initiatives. In addition to lobbying independently, the Coalition collaborates with various organizational allies to meet its mission, including relevant partners in labor and water system operations. UTCA serves as the “backbone staff ” to the CWCC with Sante Esposi-

The UTCA is able to advocate for its members by working with and through the CWCC and, in recent years, by coordinating with the US Water Alliance and other partners. We put a lot of stock in the opinion of Key Advocates as their experience in DC goes back decades. Bryan Esposito, Managing Partner of Key Advocates, notes that “All indications from the Biden Administration are that infrastructure, including water resources, is an immediate high priority. What that means is more funding and more jobs for clean water, safe drinking water, recycled water, water storage, stormwater, and groundwater projects.”

The CWCC has set priorities for SRF Funding and other program improvements. We have been and will continue to push Congress and the incoming Biden Administration to reauthorize the Clean Water SRF with corresponding appropriations of at least $40 billion annually. This is double the current appropriation. In the same vein, we will be pushing to see the Safe Drinking Water SRF have an appropriation at least $25.4 billion annually. These funding levels would have a meaningful impact on the work available for UTCA members to bid on.

In addition to supporting other program improvements, the CWCC is continuing to advocate for the EPA to require State SRFs to streamline the review and approval process for replacing or improving existing water infrastructure assets past their useful life as a condition of these funds. With water utilities nationwide experiencing decreased revenues from customers, these losses must be offset to avoid impacting planned capital programs.

The Pipeline

This bipartisan failure to deliver on a “mega-infrastructure package” despite tremendous public support is tempered only by the modest progress made in the last four years to increase funding for the Clean Water and Drinking Water SRF Programs. These federal funds come to New Jersey through the NJDEP and fuel loans (combined with loan repayments and other creative financing tools) from the NJ Infrastructure Bank. NJ’s program is high-performing—we just need more funding to support it. The federal government needs to do better, as does the State of NJ.

to, former chief counsel to the House Committee on Transportation and Infrastructure, who serves as the Coalition’s lobbyist and key advisor. He and Bryan Esposito of Key Advocates, Inc. represent the CWCC (and the UTCA) in DC.

Build Back Better Plan President-elect Joe Biden’s “Build Back Better” plan stated that, coming out of this profound public health and economic crisis, he will launch a national effort aimed at creating the jobs we need to build a modern, sustainable infrastructure and deliver an “equitable clean energy future.” Biden’s team believes we are in a “climate crisis,” and much of his work will be cast in those terms.

Utility & Transportation Contractor | february| 2021 57

Biden’s plan, if enacted by Congress, will make a $2 trillion accelerated investment that will be deployed over his first term.

According to his campaign site, the far-reaching investments in infrastructure will seek to create “Millions of good, union jobs rebuilding America’s crumbling infrastructure—from roads and bridges to green spaces and water systems to electricity grids and universal broadband—to lay a new foundation for sustainable growth, compete in the global economy, withstand the impacts of climate change, and improve public health, including access to clean air and clean water.”

As it relates to water (an often-forgotten aspect of infrastructure), Biden’s plans include a focus on investing in water infrastructure and addressing drinking water contaminants. He supports increased regulation by the EPA and states that could drive further expansion of water utility capital spending programs. Biden intends to double federal investment in clean drinking water and provide new funding for low-income areas that are struggling to replace distribution pipes and treatment facilities. These goals are consistent with the CWCC’s advocacy positions and could be very helpful to areas of NJ that meet this socio-economic priority.

The Pipeline

Talk or Action?

The scope of the program and the ways in which it will be financed remains to be seen, but there is reason to be optimistic. A coalition lead by the US Chamber of Commerce and more than 140 national, state, and local groups—including construction organizations—has kicked off a drive for big, wide-ranging federal infrastructure legislation, with the ambitious aim of having a bill signed into law by July 4 by pushing Biden to make infrastructure a “First 100 Day” priority. Tom Donohue, the US Chamber’s chief executive officer, said in a statement that the “Build by the Fourth” coalition is urging Congress to “enact a fiscally and environmentally responsible infrastructure package as one of their first priorities.” Jason Grumet, the Bipartisan Policy Center’s president, said, “National infrastructure investment is the best idea that never happens.” He added, “Congress must seize this opportunity to jump start our economy, repair aging systems and advance the modern technologies needed to confront climate change.” Sean McGarvey, president of the North America’s Building Trades Unions—a coalition member—said the legislation should be “big, bold and bipartisan” and a “top priority” for the incoming administration and new Congress.

Major national water advocates such as the National Association of Clean Water Agencies (NACWA) are also pushing water infrastructure and resiliency investment as a top priority. They are saying, like we are, that modernizing the country’s aging water and wastewater infrastructure and adapting it to meet changing climate and water use patterns might be the most essential public works project for our nation. In a letter to President-elect Joe Biden, the American Water Works Association (AWWA) urged the incoming administration to prioritize COVID-19 relief for water utilities and investment for the overall water infrastructure sector. The letter calls on the president-elect and Congress to work together on the next COVID-19 relief package and urges that it prioritize the measures the CWCC has outlined.

58 Utility & Transportation Contractor | february| 2021

Meanwhile, as the COVID-19 pandemic persists in the United States, AWWA and other water sector groups including the Water Environment Federation (WEF), the Association of Metropolitan Water Agencies (AMWA), National Rural Water Association, WateReuse Association, and NACWA are calling on Congress for increased funding as well. These groups report that utilities need funding to rebound from the pandemic, which would be used to invest in critical infrastructure and help low-income customers pay their bills.

The Crystal Ball Says…

John Porcari, a former US Deputy Secretary of Transportation in the Obama Administration who advised the Biden campaign, said during a recent transportation advocacy group event that he thinks there are “real prospects for a bipartisan, broad infrastructure package” in the early days of Biden’s administration.

The window for a bipartisan infrastructure compromise “is probably pretty short,” said Adrian Hemond, a Democratic strategist with the bipartisan Grassroots Midwest consulting firm in Michigan. “The first six months of the Biden administration are the best chance to get any legislation of consequence done,” he said. “There’s an incentive for every incumbent facing a potentially competitive election in 2022 to have an accomplishment or two that they can run on back home.”

Skepticism is fair and warranted. “McConnell wasn’t too excited about doing an infrastructure package with Trump, so I am not sure why he would be suddenly excited to work on an infrastructure package with Biden,” said John Feehery, a Republican strategist and partner of the Washington-based EFB Advocacy lobbying firm. “So, I am bit skeptical.” That said, with a one-year extension of highway funding to expire next year, union leaders and transportation advocates still see reason for hope. They’re looking to the prospect that McConnell and Biden—who served seven terms in the US Senate—could rediscover the bipartisan mojo that they used to seal deals during Obama administration.

US Representative Peter DeFazio, an Oregon Democrat who chairs the US House Transportation and Infrastructure Committee, expressed optimism that Biden will push hard to keep his campaign commitment to rebuild the nation’s infrastructure, even if McConnell is initially recalcitrant. “The President-elect has made it clear he is ready to work with Congress to deliver results for all Americans with bold investments in infrastructure that help everyone, from large metro areas dealing with unreliable transit and soon-to-be jam-packed highways, to rural communities that suffer from bridges in poor condition and deteriorating roads,” DeFazio said in a statement.

If the past is any indicator, the first months of the Biden administration are the best chance to get any legislation of consequence done. On face value, there seems to be an incentive for every incumbent facing a competitive election in 2022 to have an accomplishment or two that they can run on back home, in which case we return your attention to our title: Why not water infrastructure?

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j.m. ahle company completes 40 years in business By: ron Perlman

W

e at the JM Ahle Company are celebrating our 40th year in business. We want to offer our sincerest gratitude to the readers of this article because the loyal support of UTCA members has contributed the most to our success. In fact, UTCA contractors account for approximately 75% of our business.

Back in 1980, with a prospective customer list of highway, bridge, and utility contractors, James Milton Ahle set up shop in a vacant dirt yard in South River. He hired his sons to build makeshift offices inside the lone garage, installed a couple of phones (no emails or faxes back then), and hired a couple of young guys like me to handle inside sales and dispatch. We loaded up the yard with expansion joint, wire mesh, curing compounds, and 20-foot lengths of rebar and bought a brand new 24-foot-long truck to make deliveries. Customers soon began to request rebar cut and bent to specific lengths and shapes, and in 1982, Jim invested in an automated rebar shear line and a bending machine—then all we had to do was figure out how to install and use it! With this development, the JM Ahle Company became what it is today: a family owned and operated reinforcing bar fabricator.

Like most of you, we have tried to expand during good years and survive the lean ones. October 29, 2012 was a particular trying time for the JM Ahle Company. We were still recovering from the Great Recession when Hurricane Sandy hit and an eightfoot-high surge of floodwaters from the South River devastated the yard and office, destroying shear lines, bending tables, and forklifts. Luckily, our friends at Berto Construction had leased us a piece of their Rahway property a few years earlier where we had established a second location. So, we salvaged any files that hadn’t floated away, crammed the whole crew into the smaller Rahway location, and managed to keep the business “afloat.” We couldn’t return to South River for well over a year, and today, you can still see the highwater marks on a few of the wooden structures.

Today, twenty years after Jim Ahle retired, the JM Ahle Company operates in much the same way as it did forty years ago. Unlike most of our larger competitors who operate indoor crane facilities, the JM Ahle Company has remained an outside shop and

66 Utility & Transportation Contractor | february| 2021

Doug Ahle supervises the loading of a 60-foot assembled rebar cage.

uses forklifts to move material. Logistically, our rebar operation is no different than one of your construction sites; our fabricating crew, headed by Doug Ahle, Sr. and Doug Ahle, Jr., perseveres through rain and snow, winter cold and summer heat.

The personal service we offer has also endured over the years.

Whether you speak to our Sales Manager Valerie Marchi, Bookkeeper and Dispatch Kirstin Roberson, Project Manager Karrima Burch, Estimator Vatsal Patel, or General Manager Ron Perlman, you will receive immediate responses to all your inquiries.

Valerie Marchi, who has been with Ahle for just three years, reflects on this accountability: “I’ve learned that our customers know that if they need an emergency order, they can call Ahle and count on us to do anything we can to keep their job going, no matter how small or large the request.” She smiled, adding, “I feel like every order I get now is an emergency!”

Doug Ahle, Sr. and Doug Ahle, Jr.

er $50 per ton. Since August, the price of rebar has increased by almost $250 per ton, with rebar prices close to $.60 per pound for uncoated and $.70 per pound for epoxy coated. The increase in cost might be outside of our control, but we still control our ability to offer exceptional service in challenging times. Once again, JM Ahle Company wants to thank all of the UTCA contractors for their continued support.

However, there is one distinct way in which the JM Ahle Company has changed. Maybe we should call it a progression. Though I might be the General Manager, the guy in charge, I have come to learn that it’s the three ladies here—Karrima, Valerie, and Kirstin—who make this company work and whom I depend on each day. Jim Ahle used to be my only boss: now I have three.

The coming year is shaping up to be one of our most challenging.

As I write, the rebar mills have just raised the cost of rebar anoth-

Pictured from left to right: Vatsal Patel, Valerie Marchi, Kirstin Roberson, Karrima Burch and Ron Perlman.

Feature Story

The JM Ahle Crew and a load of NJDOT barrier cages for Garden State Precast.

Utility & Transportation Contractor | february| 2021 67

Congratulations to

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key factors for successful evaluation & implementation By: tim fitzpatrick, senior vice president, employee benefits, ioa & nancy damato, rda benefit services

I

n the December issue of the UTCA Magazine, we wrote an article titled “Level-funded Medical Programs Can Provide a Practical Alternative for Small Employers.” This article focused on some of the benefits of level funding, such as flexibility in plan design and network, access to claims data, the opportunity for a return, and wellness incentives. In this issue, we will explore a few key factors to consider when evaluating level-funded programs.

Level funding is a form of self-insurance. Employers can gain many advantages from the flexibility of this “open architecture” model, but it can prove to be more complicated than the traditional fully-insured market, which means that companies have more factors to evaluate. Three of the most important elements to consider are medical underwriting, stop loss contract, and method of return on the claims fund.

Key Factors to Evaluate: • Medical Underwriting – Many level-funded programs require employees to complete an application attesting to a statement of health as part of their underwriting process. This extends to enrolling dependents as well. Underwriters use these applications to help project the overall claims risk of a potential group. For many companies, this can lead to very competitive premiums, but it can also be viewed as intrusive by employees and lead to an increased administrative burden for the internal HR team. This process can be conducted manually through paper applications or administered through a secure online portal sponsored by the carrier or a third-party vendor.

Some programs lean more heavily towards a more traditional demographic underwriting methodology that, in part, analyzes prescription drug utilization for the group and utilizes predictive modeling technology. This process can be implemented more easily, but might also have some underwriting limitations, as a complete medical history is not required.

• Stop Loss Contract – In a self-insured model, many programs provide employers with the ability to purchase stop loss or reinsurance coverage to protect from the volatility and unpredictability of claims. This coverage limits the employer’s financial exposure to a set dollar amount in claims cost. Stop loss coverage is typically offered on a per person basis, called specific or

NEWS

level-funded medical programs: individual stop loss, as well as on a group basis, called aggregate stop loss. Some level-funded programs offer both types of stop loss and some only offer it on an aggregate basis.

The term of the stop loss coverage is also important. These terms are often defined by the date that claims are incurred as well as the date that those claims are actually paid. A 2016 Cigna white paper explains that “policies may be quoted on a 12/12 basis. With this type of contract, only claims that are both incurred and paid during the 12-month policy year will be covered.” Certain programs offer flexibility in contract terms, especially to account for a delay or lag in the billing and payment of claims. Organizations should carefully analyze these reinsurance aspects when designing their program.

• Method of Return on Claims Fund – In a level-funded program, a portion of the monthly premium dollars paid by the group is set aside to establish a claims fund. The program administrator uses this amount to pay for claims on behalf of the employer. If there is money left in this fund after the contract term expires, a portion of this money is often returned to the employer.

Some programs will return the entire amount, and others will return a pre-determined percentage. Some programs will require a group to renew their plan to receive this return, and some will not. The unused amount can be returned directly to the group or applied against a subsequent year’s plan cost.

In either scenario, an employer will want to determine if this money is considered a plan asset and whether it should be proportionately shared with employees.

Level-funded programs can be a great option to consider. They can help employers build a sustainable long-term solution for their group medical plan, providing access to claims data and value-added resources. They are, however, a form of self-insurance and should be carefully analyzed to ensure an appropriate fit for an organization, matching their needs. This article is intended to provide an overview of some important factors, but due to the complexity of these programs, a more thorough analysis is required. We recommend that any company considering these options seek the guidance of an educated professional, such as their broker or insurance consultant, to analyze all components necessary to make the best decision possible.

Utility & Transportation Contractor | february| 2021 71

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eople have been building dams for almost five thousand years, first to create water storage for livestock and irrigation, to harvest ice when climate allowed, and then to satisfy the need for mechanical power. In New Jersey, dams have been built for all these reasons for over 250 years. There are now over 1,700 regulated dams in New Jersey and several hundred more dams that do not meet the regulation requirements. All dams, regulated or nonregulated, are candidates for removal should their owners decide to rid themselves of maintenance costs or liability and foster the ecological benefits that dam removal can provide to a river system.

Forty-three dam removals have taken place in New Jersey since 1985, with the number per decade increasing from seven in the 1990s to 30 in the last decade. As is the case around the nation, dam removal in New Jersey is increasing year after year. This increase in removals can be attributed to structural aging, which incurs costly repairs to meet modern Dam Safety standards, as well as dams’ increasing obsolescence and a growing awareness of the huge ecological uplift to a river system that dam removal provides.

Dam removal projects include all the elements of typical building, sitework, or infrastructure construction; however, these projects come with the added challenges of working in, or right on the banks of, a river or stream. Dam removals vary greatly in difficulty and scope. Location is a factor, whether it is in a state park

A crew reinforces a new bank following a dam removal.

or city center. The dam’s existing use can range from obsolescence to actively generating hydropower. To further the challenge, the impounded river or dam itself might be crossed by utilities such as power, sewer, or gas lines that could be exposed by the removal of

NEWS

dam removal: freeing new jersey's rivers the dam. Removal could also expose the foundations of bridges, homes, or businesses, so design plans must protect such nearby infrastructure.

An articulating off-road truck works along with two excavators to install scour protection up and downstream of a county bridge.

Beginning a dam removal project requires several permits. The range of permits reflects the special conditions present when working in state waterways and, maybe for the first time, construction schedules will need to align with seasonal fish migration or spawning. Permits needed will likely include a Soil Erosion Control Permit, NJDEP Dam Safety Construction Permit, NJDEP Freshwater Wetlands General Permit 18, and a NJDEP Fish & Wildlife Water Lowering Permit. Because the average age of a dam in New Jersey is well over 50 years, the project sponsor will likely need to work with the State Historic Preservation Office as well. Depending upon the location of roads, bridges, and other infrastructure, additional permits might be needed from the NJ Department of Transportation (DOT) or the County Engineering or Bridge Department. Using federal funding might require preparation of National Environmental Protection Act (NEPA) compliance documentation.

Not surprisingly, this type of work can require a lot of specialized equipment and skills. A hydraulic hammer with a snorkel attachment used with compressed air enables the hammer to break up concrete in water depths exceeding 2.5 feet without damaging the hammer. A hydraulic thumb attachment for excavator buckets is essential to pick up, move, place, or load rock and broken concrete efficiently. It is not unusual to find a mid-sized to large dam, especially one built in the 1950s or later, reinforced with sheet piling, so a hydraulic sheet piling extractor coupled to an excavator is

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used to remove sheet piling driven deep into bedrock. If the area upstream of the dam, the impoundment, contains a large amount of sediment, then it may need to be dredged before the dam is removed. Equipment for dredging varies depending on whether dredged materials will stay on site or be transferred offsite. Again, depending on specific conditions, dredging can be done mechanically or hydraulically.

In addition to removing the dam, restoration to shape new banks and create habitats might entail controlling the grade of the new river channel. Moving around on the soft ground of the former impoundment or newly formed banks requires “swamp” mats.

These 4’ x 20’ timber or steel mats are placed to allow heavy equipment to move through soft areas. The excavator must “leapfrog” (lifting mats from behind to in front of the machine) across the mats as the machine moves forward. An articulating off-road truck, common on excavation sites, is often used for dam removal projects. A “crawler hauler” with rubber tracks can be used on a dam removal if material needs to be moved within the former impoundment and the ground is too soft for the off-road truck.

As you might imagine, an experienced operator with a knack for river work is more important than all this specialized equipment combined. Sometimes the river is diverted during demolition; however, in a smaller river—the most typical site for a New Jersey dam removal—the operator is working in a flowing stream. Even the most skilled operators from other disciplines may find it too challenging to adapt to work in rivers and streams; they might be

An excavator constructs rock vanes specially designed to allow migratory fish to pass under Interstate 80.

unable to anticipate changes in weather and their resulting impact on the depth and speed of water. Such inexperience can lead to swamped or damaged equipment and other safety concerns that no one wants as part of a job. For the best results, and results that hold up to all types of weather, an experienced contractor is your most important asset.

Dam removal projects are complicated but exciting and important projects—so much so that a collaboration of nonprofits and government agencies came together to form the Statewide Dam Removal Partnership (SDRP), which seeks to advance the removal of antiquated, dangerous, or ecologically detrimental dams. SDRP maintains a website, njdams.org, which acts as a clearinghouse for New Jersey specific dam removal information. An email sent via

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the site can connect you to someone with the expertise you need to solve a particular problem as you approach a dam removal project.

SDRP members meet quarterly to discuss beneficial dam removal projects and to exchange information regarding policy, regulatory issues, funding, and the practical considerations of dam removal.

Two excavators, one fitted with a hydraulic hammer and one fitted with a bucket and thumb, work side by side to remove a dam.

The SDRP holds periodic training workshops for professionals and officials and provides information to the public about how dams and dam removal may affect their communities and their lives.

With the vast majority of New Jersey’s aging dams no longer performing the function for which they were built, dam removal projects are likely to become more common. Removal projects being bid by a commercial owner would likely appear on a site like cisleads.com, bidclerk.com, or bidcentral.com, while jobs run by federal, state, or local governments would be found on cisleads. com, NJstart.gov, or beta.sam.gov. Requests for proposals by nonprofit organizations might be issued through a site like bidclerk. com or might be included in a press release announcing an upcoming project. Additionally, American Rivers, a nationwide nonprofit, maintains a list of certified Master Service Contractors often used by river restoration project teams who are preparing an RFP. Contractors can request information on the certification process by contacting restorationrfq@americanrivers.org.

The Nature Conservancy is excited for this opportunity to reach UTCA members and possibly grow the number of firms that are interested in restoration projects.

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