Issuu

Utility & Transportation

Celebrates 100 Years

contracTOR

Komatsu

april 2022

president’s message

From the desk of: roly acosta “You can’t do today’s job with yesterday’s tools and still be in business tomorrow.” ~Author Unknown I started in this business on February 5, 2001. I was handed a hard hat, a Nextel cellular phone, a set of plans, a stack of blank daily time sheets, a manila folder for receipts, and a pile of inter-office envelopes. I was assigned to our project in Camden and told to show up the next day on the site at 6:30AM. No onboarding, no safety briefing, no discussion on process and procedure…NADA! Go to work and make it happen. Same experience for most of you, I am sure. That was 21-years ago, and I cannot imagine doing the same today with a new hire and expecting a successful result. Our company, and the industry, observed, learned, and adapted. We are living in a world that is in constant transition. It feels like we need to accept ambiguity as a new norm. We need to accept that there will be different answers to the same questions. It simply will not be enough to understand the change. We will need a change in mindset. We must have the motivation to overcome resistance to change and take the time and money to invest in change. It will be difficult at first, but in the long run we will certainly benefit. Easier said than done and there are no silver bullets. The change needs to be more than just rolling out the next high-tech product or flavor of the month management tool. It needs to be about looking for ways to do what we do better. Luckily, “better” is a non-specific term that can be applied in a lot of different areas and can be measured in meaningful increments. How can we make our companies a better place to work? How can we make construction a better option for the next generation? How can we make legislators better advocates of our industry? How can we make the UTCA better meet the needs of our members? Without a change in mindset there is not a tomorrow for our businesses and Association. Being committed to a change is not just about improvement and growth. It is also about responding to the rapid evolution of our industry from new materials and equipment to alternative procurement methods and the sheer number of laws that require compliance. And that all needs to happen before you even put a shovel in the ground! Sit with our Emeritus Board Members and ask them about the industry changes they have witnessed. Responding to the change was necessary to survive. To be industry leaders of change, we must become “infinite players.” Simon Sinek, author, inspirational speaker, and a NJ high school graduate, talks about “infinite players” vs. “finite players.” Finite players play to beat the players around them. Infinite play-

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ers play to beat themselves. In other words, infinite players ask, “How can we make our company a better company today than it was yesterday?” And they ask themselves the same question the following day, and the day after that, and the day after that, forever. Like our companies and employees, the UTCA and Association staff must be leaders of change as well. They must ask themselves the same “make better” question and continue their commitment of being the leading advocate of industry in New Jersey and of being an “infinite Association.” In line with the UTCA Five-Year Strategic Plan, the Association remains focused on making the following better for our members: Trenton/DC: money, support, and smart policies. • Keep the funds flowing to construction. Communications: website, newsletter, and social media • Communication is critical to member satisfaction. Engagement and Networking: events, seminars, and decision maker access. • Events and networking opportunities are the best way to realize member engagement. Professional Development: Courses, training, and certification programs. • Professional development is essential to a safer and smarter workforce. If you do not believe in the need for change, I encourage you to learn more about our featured member Komatsu which is celebrating its 100th anniversary. What started out as an industrial tool manufacturer for a parent company is now the second largest manufacturer of construction and mining equipment. Omedetō gozaimasu to Komatsu on their centennial celebration. Stay healthy and safe,

Roly

CONTENTS

Cover story 40 Komatsu celebrates 100 years

DEPARTMENTS 2 7 15 25 51 59 69

NEWS

President’s Message

73 program spotlight: acec life/health trust

Financial Overview

77 utca's 2022 executive seminar

Legal Dig Accounting Corner Legislative News labor relations the pipeline

Published Bimonthly During 2022

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Utility & Transportation Contractor | april | 2022 3

By: William j. ruckert, iii, senior vice president, provident bank

hile watching the state of the union address recently, I took note of the years of experience our President, Vice President and House Speaker have amassed while helping run our country. The number is certainly over 100 years, but more importantly, can their successful experiences in managing our country through past crises be effectively, and collectively, leveraged to help guide us in overcoming current issues? While the answer to that question remains to be seen, the same question should be asked of your banker. History repeats itself and the quote remains as relevant as ever when considering the broad range of issues you and your company face today. Inflationary pressures not seen in 40 years, escalating energy costs, volatile and increasing interest rates, availability of labor, government budget deficits and both domestic and international political unrest represent a fairly comprehensive list of items needed to consider, as your run your business. We have been here before and as Winston Churchill once said, ‘those that fail to learn from history are doomed to repeat it.’ Businesses need to use the lessons of the past to successfully guide them in the future. What’s interesting about these broad number of issues is the inter-connection between so many of them and the domino effect they have on one another. Inflation is influenced by among other things, high energy prices, followed by the Fed increasing interest rates to fight inflation. Of course the dynamics of supply and demand can further heighten inflationary pressures as does increasing government spending leading to budget deficits and the need to contract the money supply. The balancing of supply and demand is also impacted by interruptions in the delivery of goods, as we’ve seen recently with Covid. A similar interruption in the supply chain was seen in the 70s with an oil embargo that led to high unemployment, interest rates in the teens, excessive inflation, budget deficits, domestic and international unrest, among other things. Sound familiar? Nothing new here but it has been a while since all of these factors have impacted your business and the economy as a whole. When you consider how to manage this ‘perfect storm’ of events, you must look to your trusted business advisors to help you, especially your bank. Banks have played a prominent role throughout history in dealing with outside economic factors, unfortunately though in some cases have caused, or at least contributed to the crises. More often than not however, financial institutions have served as a stabilizing force for businesses and government

alike, uniquely positioning them to provide valuable wisdom, advice and time-tested products to help safeguard your company through these tumultuous times. It is no secret that the Fed will be increasing short term interest rates and it will most certainly negatively affect borrowing costs. The flat yield is indicative of uncertain economic times two-three years from now and beyond, but given recently enacted government spending programs, does that mean long term rates remain low? Is your company’s capital structure sufficiently insulated from higher interest costs? How about rising labor and raw material costs? Unclear at best.

Financial overview

experience matters -

These items need to be discussed with your bank and their experience needs to be leveraged to help you manage them. For example, since inflation has been dormant of over two decades, LIFO layers have been exhausted. If your company relies on carrying high inventory levels, your banker must be well versed in understanding what a LIFO layer is and how it can impact the bottom line, balance sheet and/or borrowing capacity. If your company relies on bank financing, your banker should provide interest rate hedging options like Swaps, forwards, collars, and caps to name a few. If goods are imported from overseas and you buy on open account, perhaps it’s time to consider trade finance services to protect against supply chain interruptions among other things, and your bank should have those services at your disposal. The products listed above are not new to banking and largely resulted from the industry’s experience in managing the risks of the past. Economic conditions have caused some of these services to become less relevant in the last two decades but given today’s environment, they offer the potential to help minimize the impact that unforeseen and uncontrollable items can have on your company. Experience matters greatly in helping manage your business and your bank offers many tools to help you prevent history from repeating itself. I would like to take this opportunity to congratulate Komatsu in celebrating its first 100 years in business; that’s quite an achievement!

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retention of design-build plans: the answer is in the agreement

s part of a design-build project in New Jersey, the General Contractor is typically responsible for preparing the design-build plans or having a licensed design professional subcontractor prepare such plans, and submit them to the public entity. Typically, when the project is completed the design-build plans are retained by the public entity. However, it is unclear what happens to the plans if the public entity must terminate the project prior to completion or if a court of competent jurisdiction invalidates the project. The New Jersey Appellate Division has recently touched on these issues. The Appellate Division issued an opinion discussing these topics and questions in an unpublished opinion, Jose R. Jimenez, Jr. v. Union County Improvement Authority, County of Union and Terminal Construction Corporation, No. A-0764-21, 2022 WL 457387 (N. J. Sup. Ct. App. Div. Feb. 15, 2022). The facts of the Jimenez matter, like the recently decided similar case of Dobco, Inc. v. Bergen Cty. Improvement Auth., No. A-2201-20, 2021 WL 2832890 (N.J. Super. Ct. App. Div. July 8, 2021), involved the Local Public Contracts Law (“LPCL”) (N.J.S.A. 40A:11-1, et seq.), a county improvement authority, and design-build projects. Specifically, the Union County Improvement Authority (the “UCIA”) and the County of Union (“County”) used a procurement process where Terminal Construction Corporation (“Terminal”) was selected as the “redeveloper” by the UCIA for the construction of the new County government center in Elizabeth, New Jersey (the “Project”). The Project was separated into two phases, Phase 1 and Phase 2. Terminal was selected by the UCIA under the Local Redevelopment Housing Law, where UCIA negotiated directly with Terminal, a private construction contractor, to complete the Project, a publicly funded project. The UCIA did not utilize the LPCL to select Terminal. In Jimenez, the Appellate Division determined that in using a “design/build” construction and funding mechanism, the UCIA sought to circumvent the LPCL by calling a general contractor a ‘redeveloper.’” However, the court found this mechanism to be in violation of the LPCL because, consistent with its ruling in Dobco, the LPCL applies to county improvement authorities and public projects of this type, regardless of the designation of the contractor as being a “redeveloper.” In Jimenez, the Appellate Division found that the trial court misapplied a question of law, the interpretation of the Development Agreement between UCIA and Terminal (the “Agreement”), in rendering its decision. Specifically, the trial court agreed with the County and UCIA that the Project was one continuous proj-

ect, only separated into two phases due to funding. However, the Appellate Division rejected this finding. The Appellate Division found that the Agreement explicitly stated that the Project consisted of two phases. Terminal had only performed work under Phase 1 and the UCIA had only secured financing for the tasks performed under Phase 1. Further, the Appellate Division determined the language in the Agreement was unambiguous that the Project consisted of two distinct phases with seemingly discrete, non-overlapping tasks. As such, the UCIA was required to publicly bid the Project and the UCIA was required to bid Phase 2 of the Project.

Legal Dig

By: nicolas sullivan, esq., florio, perrucci, steinhardt, cappelli, Tipton & Taylor LLC

Although the Jimenez court found Phase 2 severable from Phase 1 and subject to the LPCL, the UCIA was permitted to retain the design-build plans. The Agreement contained a termination provision that permitted either party to terminate the Agreement if the project was delayed for more than 120 days, which occurred in this instance due to the litigation. Significantly for purposes of a design-build project, if the Agreement was terminated for such reason, the Agreement stated the UCIA would own “all reports, studies, data, plans, surveys, title reports, maps and specifications prepared by [Terminal] and third parties...and all documents, reports, permits and approvals obtained by [Terminal].” As such, the work that was completed by the architect and engineer performing geotechnical civil engineering services would be owned by the UCIA prior to the commencement of Phase 2 due to the termination provision of the Agreement. In short, the UCIA would own the design-build plans developed by Terminal, and its subcontractors, and can use the plans for Phase 2. A crucial takeaway for contractors from Jimenez is an understanding of the provisions of the Agreement between UCIA and Terminal regarding the design-build plans for the Project. Although UCIA and the County failed to follow the LPCL when securing the services of Terminal, the Court permitted the UCIA to retain the design-build plans for Phase 2, even though Terminal may not be awarded the contract under the LPCL for Phase 2. Moving forward, it is critical for contractors to review contract language regarding the transfer of design-build plans from the contractor to the public entity prior to the final completion of the project. This includes transfer of design-build plans due to termination, with or without cause, a decision by the public entity to no longer pursue the project, or for any other reason which may permit the termination of the project prior to final completion. The language of a contract must be clear regarding the retention of design-build plans by a contractor prior to and up until completion of the project.

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understanding cryptocurrency and related tax issues By: salvatore schibell, cpa, m.s. taxation, mba, lawson, rescinio, schibell, CPA's

Understanding Crypto Cryptocurrency was officially launched in early 2009 with the release of Bitcoin. At the time Bitcoin launched, the price was barely above $0, but in 2010 it began to grow exponentially. Someone who had invested $1,000 in the early days of crypto might have a crypto portfolio valued at around $287 million today. That’s certainly an attention-grabbing number. In recent years, cryptocurrency has become increasingly mainstream. Not only is it already accepted by some businesses, but it has also become a topic of interest to the US Treasury, and conversations around the possibility of a digital US dollar have started to bubble up in the media. So what actually is crypto? Keep reading to find out everything you need to know. First Thing’s First: What Is The Blockchain? Blockchain technology is far from new, but with crypto exploding, it’s recently come to the public’s attention. Blockchain is a type of shared database that differs from your typical table-centered database in that it stores chunks of data as linked together in a chain, forming an irreversible and easily confirmable timeline of events. Information is stored together in groups, known as blocks–hence, blockchain. While it is most commonly used for tracking cryptocurrency transactions, it has applications in legal contracts, product inventories, supply chain tracking, intellectual property protection, and medical history. Because the nature of blockchain is that the data entered into it is irreversible, it is used as a ledger to track transactions for Bitcoin and other crypto that are permanently recorded and viewable by anyone using the blockchain. Users can access their block on the blockchain with a private key, which is a string of numbers that can be used both to access your crypto and prove ownership of crypto. These also allow users to release only the bare minimum personal information needed to make crypto transactions, allowing them to remain anonymous.

The security of the blockchain is largely due to the ability of all users to collectively review all transactions and edits made to the blockchain. A simple majority of all blockchain users are needed to make a change. For example: a hacker obtains a copy of a blockchain and makes a change to one of the blocks. The rest of the users in that network can see the change and reject it, rendering the hacker’s efforts useless. In order to unilaterally make a change, the hacker would need to own at least 51% of the blocks in the blockchain, and even then, such a drastic change would be recognized by the other users, and they could create a hard fork, which steers the blockchain in a different direction from the hacker’s blocks and makes their held assets worthless. It is a transparent, easily accessible, secure, and decentralized technology that allows the users participating in it to have control over their assets, which makes it an attractive option for many. There is no one person who controls the blockchain–rather, all users collectively retain control. Determining Crypto Value

Accounting Corner

ith sweeping cryptocurrency regulations set to be put in place and the possibility of the crypto dollar becoming a US currency, it’s important to brush up on crypto for those looking to get into the investing game.

Unlike value in the traditional stock market, which is determined by current earnings of a company and potential for growth, cryptocurrency value is simply determined by how much a willing buyer will pay for crypto from a seller. With such a high upside and tight security, crypto might seem like a no-brainer for those looking to plunge into the deep end, but exercise caution – because of the manner in which value is determined, cryptocurrency is one of the most volatile forms of investing out there. Case in point: in July 2021, the total market cap of all cryptocurrencies was $1.4 trillion, which was down from $2.2 trillion in April 2021. The extreme ups and downs of the crypto market make it a fitting investment only for risk-tolerant investors. Crypto Mining “Mining” for crypto is the process through which new coins are inserted into the blockchain. Crypto mining rigs use advanced hardware to solve complex math problems which unlock the next block of the blockchain, and the computer that solves the problem is awarded with cryptocurrency.

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Crypto Mining Business Taxes

Tax Aspects

If you own a cryptocurrency mining business, then you can deduct your expenses just as any other business can. The value of what you produce is measured by your revenue. Your basis is determined by the income you realize. Earnings from crypto mining as a business are subject to the traditional taxes including self-employment tax.

Crypto as a Capital Asset

Accounting Corner

There’s More Than Just Bitcoin While Bitcoin has become synonymous with cryptocurrency, there are hundreds of different kinds of cryptocurrencies on the market. The term “altcoins” has become a catch-all for cryptocoins other than Bitcoin. Most of these fall under two main types of crypto: Coins, such as Bitcoin, or Tokens, which are not intrinsically valuable themselves, but represent value, similar to the US Dollar. An example of tokens are NFTs, or non-fungible tokens. Some coins are available in limited amounts–Bitcoin’s creators have stated that there are only 21 million in existence–and others, like Ethereum, are unlimited in supply. Ethereum, currently the number two crypto asset in the world, was designed to operate as a form of currency on its own blockchain that allows users to build and monetize apps, while Bitcoin was designed as an alternative to traditional currencies. Sometime after Bitcoin exploded, other cryptocurrencies called Stablecoins started popping up. These are tethered to the value of the US Dollar and are designed to offer stability and transparency to its users. Appropriately, the most widely circulated stable coin is called Tether, with over 80 billion in circulation. Purchasing and Storing Crypto is traded on platforms called cryptocurrency exchanges. These operate similarly to the stock market exchange. The largest one is Binance, however, there are nearly 400 of these exchanges in operation globally, with some of the bigger ones being Coinbase, FTX, Kraken, and Bybit. Most of the big-name cryptocurrencies (Bitcoin, Ethereum, Bitcoin Cash, Litecoin, etc.) can be purchased using the US Dollar or some other fiat currency, however, many smaller altcoins require payment in Bitcoin or Ethereum, which is why so many investors start off in crypto with one of those two. Once crypto is purchased, you need somewhere secure to put it. The blockchain acts as the ledger for the sale of the crypto, but you still need what’s known as a cryptocurrency wallet to store it. Wallets are often offered for free (minus network transaction fees) with some of the larger crypto exchanges, and they can be accessed directly through the exchange. When you store USD in these exchanges, FDIC insurance coverage is available.

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Crypto is a capital asset for now, so treat it accordingly. This means that many of the common transactions that are performed with crypto would require the investor to report any gains or losses, similar to present stock transaction reporting, capital gains or capital losses, long or short. In addition to any gains and losses you incur, if you are in the business you need to report receipts of earned as revenue and reflect your expenses the same as a normal business. Activities considered a business can include mining or staking crypto, receipt of any airdropped tokens, or certain kinds of trading. Records on crypto are still in early stages and it’s highly likely that crypto investors will not receive a 1099. This does not absolve them of reporting any gains from crypto, and beginning in 2023, brokers will be required to report that info to the IRS on a 1099. Cryptocurrency Gift Tax If you decide to give cryptocurrency as a gift during the holiday season to a friend or relative, it will be treated the same as any other gift. When the recipient sells the gift, the cost basis is carried over from the donor to the recipient. Inheriting cryptocurrency is treated like any other inherited asset – it may be subject to estate taxes. In keeping with the theme of being treated as stock, crypto also enjoys a stepped-up cost basis, meaning the cost basis is the market value at the time the benefactor dies. In conclusion Crypto is an exciting technology that makes the future of digitized assets one with endless opportunities. The real estate, entertainment, tech, and medical industries are teeming with possibilities thanks to the streamlined and secure nature of blockchain, and while it can be a bumpy ride to the top, it’s safe to say that most investors who have gotten in are happy they did. There is a whole world of crypto waiting to be explored and getting to know the basics is just the first step. Whether you’re looking to mine or trade, there’s never been a better time than now to get involved with the booming crypto market.

Cover Story

komatsu

celebrates 100 years By: dan kennedy, senior director

or its first 100 years, Komatsu has been evolving, both geographically, and with the variety of solutions and services it provides. While the company was founded in Japan, they have built a firm presence in production and service in North America since the mid-1980s. UTCA members have engaged with Komatsu South Plainfield (formerly Komatsu Northeast) as a highly respected equipment distributor since the early days of UTCA when that location operated as Binder Machinery. Komatsu’s history Originally established in 1921 in Komatsu City, Japan, Komatsu has spent the past century dedicated to its founding principles of quality first, technology and manufacturing innovation, global reach, and people development. Through the years, Komatsu’s continued investment in core capabilities and strategic acquisitions have connected smart, diverse people and cutting-edge technologies with a shared belief that partnerships are the best way to solve challenges and meet society’s needs. Komatsu’s purpose is a combination of its mission and vision and honors the company’s legacy while looking toward the future. For the next 100 years, Komatsu will focus on supporting the construction, mining, forestry, industrial machinery, and ag-

Industrial Development Advantage (IDA) working in Fairless Hill, Pa.

Vollers PC490LC-11 building demolition

riculture industries in their transformations to the digital workplace of the future: equipment and people, connected through smart technologies on an open platform, driving towards zero harm, zero waste and zero emissions. By helping digitalize jobsites worldwide, customers can optimize on-site operations towards a carbon-neutral environment. Komatsu established its first manufacturing operation in the U.S. in Chattanooga, TN, in February 1985. Today, the plant employs over 370 people, and produces medium size hydraulic excavators and forestry equipment. In 2001, Komatsu opened its Newberry, SC, plant, which produces wheel loaders and forklifts. Over the various industries it serves, Komatsu has 20 manufacturing plants in the U.S. The Binder years Binder Machinery first began representing Komatsu products in 1982 and soon grew their market share. UTCA contractors began using Komatsu excavators and many of those original buyers still prefer Komatsu excavators. Before Komatsu, Binder represented and supported Bucyrus Erie cranes and excavators for 30 years. Binder Machinery’s South Plainfield and Winslow locations offered Komatsu construction equipment including dozers, excavators, graders, trucks, and wheel loaders, as well as other OEMs cold recyclers, pavers, asphalt rollers, soil compactors and milling machines. A member of UTCA since the late 1960s, Binder Machinery’s founder, Walter Binder, was the first inductee into the NJ Construction Hall of Fame in 1993. His son, Bob Binder, was inducted, posthumously, in 2018 and Bob’s son, Brendan Binder, was recently awarded UTCA’s Larry Gardner award, which recognizes associate members who best support our association. Komatsu acquired Binder Machinery in 2017.

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Training and safety Komatsu South Plainfield and Winslow invest significantly in training their people.

Mazza Mulch Komatsu Fleet in their Tinton Falls, New Jersey Yard.

Komatsu South Plainfield and Winslow Walking into the South Plainfield and Winslow sales, service, parts office, or yard, you get the same personal independent business feel that has been in existence over the years. If you phone in, or stop by in person, you will find some of the same employees who have been with the company for over 30 years, as well as second generation employees and new employees establishing their careers. Komatsu is always looking for talented individuals who have a sincere desire to join their team.

• Technician training is critical to keeping customer equipment up and running. Komatsu’s technicians are regularly scheduled for classes to keep them apprised of technology advancements. This training can range from in-person training with one of three training instructors, to online learning. • To keep customers’ machines running, Komatsu also continues to invest in its service department from service trucks, to tooling. Every day they have a team of technicians on the road and preventative maintenance service trucks to take care of customers.

Cover Story

• Safety and driving toward zero harm is priority in all they do. Technicians are 30-hour OSHA trained. Additional safety training includes annual training for MSHA, Forklift, Hazmat and Rigging. Every Monday morning there are safety meetings with all service personnel. Komatsu utilizes a safety coin to remind everyone about safety, and technicians utilize Track/FLRA cards during activities.

Smart Construction As the technology evolves, there is no doubt Komatsu will be ready to serve the market in New Jersey and beyond. Smart Construction is like a small consulting service housed within our distributorships. We form a partnership by providing a suite of services that help ensure customer’s projects are successful. Komatsu likes to use the tagline, “Project Manager Assistant, from before A to after Z and everywhere in between.”

North American Aggregates sand plant in Perth Amboy, NJ.

“The transition from an independently owned dealership, hasn’t changed the long-standing relationships with our customers, and in many cases, our customers still see a lot of familiar faces,” said AJ Binder, GM, Service. “The Komatsu team members in sales, parts and service continue to provide the same high level of product support that our customers expect. We strive to be the best partner to our customers and thank them for their support.”

Komatsu’s Smart Construction Solutions are smart applications created to help construction customers optimize their business remotely, and in near real time. Since Komatsu customers began piloting early capabilities in 2015, Smart Construction has been connecting people, equipment, and construction processes to enhance workflows in an open platform. Supported by its

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Cover Story

strategic partners, who are leaders in their own fields, Komatsu’s vision is to improve operations across all phases of the construction process by enabling digital transformation of customer jobsites. With Smart Construction, software, hardware, and services come together to help customers be more connected, efficient, and successful. Smart Construction Dashboard is designed to be used daily and combines data from multiple sources into one comprehensive picture. It provides contractors with 3D graphic visualization of all design, drone and machine data to measure cut/fills, quantities, and productivity. Smart Construction Field is a mobile app that allows contractors to easily record job site activity and analyze operational efficiencies in near real time. Reports generated by Smart Construction Field can track daily job site conditions, and task progress can be broken down by labor, equipment, and materials, including machine utilization and fuel distribution, receipts, timecards, and subcontractor work.

Crisdel Group at Newark Airport construction job.

Smart Construction Drone captures quantities for production tracking and billing, without personnel walking the job site to do a manual survey. Contractors can gather and analyze data throughout each project phase with topographic surveys that incorporate hundreds of thousands of data points that can be used as pre-job verification or to keep stakeholders up to date. Today Komatsu South Plainfield and Winslow remain dedicated to providing their customers with the highest quality products and dependable service. Serving large industrial contractors and small commercial businesses alike, members of the organization pride themselves on helping their clients improve operating efficiency and maximize profits. Just like their company founders did over 100 years ago, they are still innovating and focused on meeting the market needs.

Just delivered, Stavola Bound Brook Quarry's new HD785-8 100 ton Haul Truck.

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UTCA congratulates Komatsu and Komatsu South Plainfield and Winslow on their legacy of success and innovation.

new legislative districts: but what has really changed? By: dave rible, EXECUTIVE DIRECTOR

There was some good news from the census report, New Jersey was able to keep all twelve congressional districts. There were some early growing concerns that we might lose a congressional district due to a lagging census report. As for the legislature, the number of districts never changes, that number is always forty.

For Congressional redistricting, the fight is the same. Many times, the congressional redistricting commission can move congressional members into “more safe” or “less safe” districts. We saw that this year with Congressman Malinowski (D) moved from a somewhat safe district into a more Republican district which will put him at a large voter disadvantage.

The process for redistricting is relatively similar for congressional and legislative. The only difference is that for congressional redistricting there are 13 members appointed to the commission. There are six Democrats and six Republicans with one bi-partisan member as a tie breaker. For legislative redistricting there are eleven members assigned to the commission. Five Democrats and five Republicans with a bi-partisan member as a tie breaker. As you can imagine both parties highly scrutinize the tie breaking member as that person will dictate the party in control for the next ten years. Even though the legislative maps were intended by our founding fathers of the Constitution to be equal and fair for all, New Jersey politics trumps all.

That became a real issue for the Democrats in District 32 which moved Senator Nicholas Sacco (D) into Senator Brian Stack’s (D) district. The issue resolved itself in an old school gentlemen’s handshake, where Senator Sacco has decided to retire leaving Senator Stack without a primary challenge. There are few other legislative districts that have some members of the assembly jockeying for Senate seats and few Assembly members hoping to retain their seats because their districts have changed. Of course, enter the word politics one more time. Those Senate and Assembly members are hoping to retain their seats not at the decision of their constituents but, the decision of party bosses.

Legislative News

idence, do they have a primary challenge, or do they just resolve to defeat and not run again?

very ten years the state of New Jersey is constitutionally required to create a new map of legislative districts. This process is more commonly known as “redistricting”. This process occurs for both congressional districts and legislative districts. The number one driving force to the redistricting is our census. A census is the procedure of systematically calculating, acquiring, and recording information about the members of a given population. This process is done every ten years as well. As you may remember from the past, the process for the census was a direct mailing to a residence asking questions about the occupants and there was usually a follow-up visit from census workers if the questionnaire was never returned. Due to the COVID-19 restrictions, the follow up visits were completely eliminated. Therefore, we have to trust that our residents sent the correct information to determine an accurate count of residents here in New Jersey. The current census shows that New Jersey has approximately 9,242,109 people.

Elections immediately following redistricting are usually very interesting. It’s that one election when candidates see an opportunity to take on an incumbent whether it is in the primary or general election hoping that the new district may not know the incumbent well enough to elect that person. So, for the next ten years, New Jersey’s legislative and congressional districts are in the books. The reality is that the districts changed but the faces will mostly remain the same. We just must hope that with these new districts our elected leaders will understand what is important for all the people of New Jersey and represent us fairly, just as our founding fathers wrote in the Constitution.

When the legislative redistricting commission members start their task of creating what is considered a fair map for the state, politics can surely take over. The members of the commission can move certain towns or cities into other existing districts. Knowing that a congressional candidate or a legislative candidate must live in their district by the time petitions are filed for election. Therefore they have the opportunity to put two incumbent Senators and Assemblymembers in a challenging position. Do they change their res-

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constructors for good government 2022 contributors UTCA would like to thank all firms that have contributed to our Industry PAC for 2022 President’s Club

J. Fletcher Creamer & Son D’Annunzio & Sons George Harms Construction Montana Construction Mount Construction Northeast Remsco PKF Mark III Union Paving & Construction

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Silver Level

R.E. Pierson Construction Traffic Lines

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Leadership Level

Gold Level

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Ambassador Level

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Platinum Level

James J Anderson Construction C&H Agency Della Pello Paving Grade Construction Green Construction HBC Company

Advanced Coring & Cutting Corp. American Shoring Apartment Rehabilitation Corp. Brent Material Company CATS Sweeping Caterina Supply Eastern Landscape Contractors First Montgomery Management J.A. Alexander Inc. Kinsley's Landfill Ritacco Construction Rockborn Trucking & Excavation SJA Construction V.A. Spatz & Sons

B&W Construction Curchin Group Perna Finnigan Scafar Contracting Taylor Oil Company Trap Rock Industries Trevcon Construction

AJM Contractors Arawak Paving Capital Steel Service Clearsite Industrial Cooper Plumbing & Mechanical Coppola Services Creative Employee Benefit Services Patrick DiCerbo Diacon USA ICON Equipment Rencor T&T Commonwealth TKT Construction Top Line Construction

If your firm is interested in donating to Constructors For Good Government, please visit www.utcanj.org and CLICK ON, Donate To Our PAC or contact Dave Rible at (732)292-4300 or dave@utcanj.org

52 Utility & Transportation Contractor | april| 2022

it's your (employment counsel's) favorite time of year: contract review time By: jonathan landesman and hope steidle kildea

he most popular lie on the internet is “I have read and understand the terms and conditions of use”. Tucked away in the fine print is often a mandatory arbitration clause, which requires users to resolve any legal claims and disputes before an arbitrator, rather than the court. Mandatory arbitration clauses (also known as pre-dispute arbitration agreements) are not only commonplace in consumer contracts, they have become increasingly popular in employment agreements.

On March 3, 2022, President Biden signed a bill prohibiting the enforcement of pre-dispute arbitration agreements as a defense to employee claims of sexual harassment and sexual assault. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the Act), passed by the House of Representatives on February 7, 2022, and the Senate on February 10, 2022, amends the Federal Arbitration Act (FAA) and may well be the first of a series of major legal developments governing employment arbitration agreements over the coming months. By rendering pre-dispute arbitration agreements void and unenforceable with respect to employee claims of sexual harassment and sexual assault, the new law creates a carve-out to the FAA’s broad protection of arbitration agreements. There are many reasons why parties may prefer arbitration over litigation. Arbitration is a more cost-effective, efficient and procedurally flexible alternative to litigation. In the past, the Supreme Court has relied on the FAA to strike down state law attempts to curtail pre-dispute arbitration agreements. This new carve-out opens the door for states to revive these efforts, if only with respect to sexual harassment and sexual assault claims, and could allow for laws that impose civil, or even criminal, liability on employers relying on such agreements. For example, California’s AB 51 imposes civil and criminal penalties on employers who require candidates to sign a pre-dispute arbitration agree-

Although the Supreme Court has yet to accept review of Bonta, it is poised to issue two key decisions affecting employment arbitration agreements before the end of its current term in June 2022. The first case, Viking River Cruises, Inc. v. Moriana, involves a challenge to California’s Private Attorneys General Act (PAGA), which allows California employees who are bound by pre-dispute arbitration agreements to sue their employers on behalf of the state for labor code violations. California’s creative attempt to get around the FAA has inspired numerous other state legislatures to follow suit. New York, New Jersey, Maine, Connecticut, Washington and Oregon have considered similar measures. If the Supreme Court upholds PAGA, it will create a path for these and other states to pass similar laws, effectively eviscerating pre-dispute arbitration agreements in the employment context. In a second case, Morgan v. Sundance, Inc., the Supreme Court will resolve a split among federal courts regarding the proper standard for determining whether a party has waived its right to arbitrate. The Supreme Court has scheduled oral argument for both cases at the end of March 2022 and should issue decisions by the end of its current term. In the coming months, employers should revisit their employment contracts before relying on pre-dispute arbitration agreements to resolve claims outside of court. If you have any questions about compliance with current or anticipated workplace laws, please contact the Labor & Employment Group or the Cohen Seglias attorney with whom you work.

Labor Relations

In the employment context, mandatory arbitration prevents employees from publicly filing discrimination and harassment lawsuits in court. Instead, employees’ claims must be resolved through a confidential arbitration process. It was recently reported that over 50% of non-union, private-sector employers utilize pre-dispute arbitration agreements. But the pendulum is starting to swing in the opposite direction. Lawmakers and courts have essentially declared war on mandatory arbitration, arguing that its growing use unfairly limits access to the courts.

ment as a condition of employment. Although opponents of the law petitioned for its review by the Supreme Court (Chamber of Commerce of the United States of America v. Bonta), that petition is still pending.

About The Authors..... Co-chair of Cohen Seglias’ Labor & Employment Group, Jonathan Landesman represents businesses in all aspects of labor and employment law. He understands the high stakes associated with employment litigation and labor relations and counsels his clients on proactive and preventative strategies to ensure the long-term health of their business. Jon can be reached at jlandesman@cohenseglias.com and 267.238.4726. Hope Steidle Kildea is an associate at Cohen Seglias and represents clients in a broad range of employment litigation matters, including discrimination, wage and hour, harassment, restrictive covenant, and other workplace disputes. She can be reached at hkildea@cohenseglias.com and 267.238.4731.

Utility & Transportation Contractor | april | 2022 59

a summary of the infrastructure investment and jobs act By: dan kennedy, senior director

y almost any measure, the recently enacted $1.2 trillion Infrastructure Investment and Jobs Act (IIJA), also known as the Bipartisan Infrastructure Law, is enormous. In round numbers, $650B of the bill represents funding of the nation’s current federal infrastructure programs at continuing baseline levels for FY 2022 thru 2026 (5 Yrs @ $130B/yr). The remaining $550B is what the bill has added above baseline levels. This $550B represents “Extra Funding” added to existing federal programs plus the addition of some new infrastructure programs.

for the traditional Title XVI program, and $17.5M for Title XVI WIIN grants. These funding amounts are over and above those already included in the IIJA. The IIJA already includes funding for these measures to the tune of $2.127B for the Clean Water SRF, $6.702B for the Safe Drinking Water SRF, and $500M for Title XVI and the Title XVI WINN programs combined. As a result, for the current fiscal year total funding for the Clean Water SRF is $3.765B, $7.828 for the Safe Drinking Water SRF, and $553.193M for both Title XVI programs.

For example, Congress recently took final action on the FY22 appropriations situation by passing an omnibus bill funding all 12 appropriations bills for the remainder of the current fiscal year. By time of publication, the President will have signed this measure. Included in the bill are $1.638B for the Clean Water State Revolving Fund (SRF), $1.126B for the Safe Drinking Water SRF, $35.693M

The $550B “Extra Funding” will not be evenly split over 5 years. New programs take time to roll out, so it is expected that about 57% will be paid out in the first 5 years and 43% paid out in FY 2027-31 as jobs get awarded and completed. Given that this year is already half over, we expect to see a lower increase in FY 2022.

2022 2023 2024 2025 2026 2022-26 2027 2028 2029 2030

2031 2023-31 TOTAL

27.2

24.0

50.5

68.0

81.9

88.4

316

74.0

61.0

43.0

32.0

234

550

In the simplest analysis let’s take the $550B “Extra Funding” divided by 10 years = $55B /year “Extra Funds”. Baseline Federal Spending of $130B/yr + $55B/yr = $185B/yr = Average 42% increase in annual federal infrastructure funding – ignoring inflation. Increases to most “traditional” infrastructure programs will be much less than 42% because the $550B also funds a host of new infrastructure programs and initiatives.

his spending touches every sector of infrastructure – from roads and bridges to water and sewer to energy and broadband – all with an eye toward resiliency to resist damage from changing weather patterns. The Bill is intended as an aggressive plan to modernize, upgrade, and protect the country’s network of important infrastructure assets while advancing clean and renewable energy initiatives and reducing dependency on fossil fuels.

perform private sector work will be expected to enter the public sector market. It is expected this will encourage start-ups, which will receive encouragement and support from government agencies. Additionally, some federal agencies will have to roll out new funding programs and adapt to support them. The massive increase in the number of projects being applied for, built, overseen, and billed out will require increased hiring in the public sector at municipal, state, and federal levels.

Job Creation

The Infrastructure Bill would revive, at least temporarily, the blue-collar economy. The additional $550B in funding is expected to create approximately 4.6 million * additional job-years of direct and indirect full-time-employment positions. Infrastructure-related jobs, which now comprise 12 percent of jobs in the U.S. workforce (130M full time U.S. workers X 12% = 15.6M), would increase temporarily to 14 percent of total U.S. jobs. This would be a marked shift from the recent trajectory of the work-

The IIJA will provide millions of new job opportunities while requiring capacity expansions in both the private and public sectors. The engineers that design these projects will need more staff and office space. The contractors that build the projects will need additional tradesmen and managers, as well as more trucks and heavy equipment. Some companies that traditionally only

The Pipeline

The Government projection for spending the $550B looks like this:

Utility & Transportation Contractor | april | 2022 69

force. In the 1970s, 72 percent of jobs in America required no more than a high school education. Today, that number is around 34%. The infrastructure program is estimated to create 2.5 million good paying blue-collar job-years for workers with a high school diploma or less, representing 55% of jobs created by the bill. The remaining 45% of the job-years (2.1 million jobyears) will require at least some education beyond high school. While these numbers, on the surface, appear to be a boon for blue-collar workers, it’s also worth noting that advances in artificial intelligence (AI), including robotics and automation in both manufacturing and construction, are expected to compete with humans for both existing and new jobs in those industries in the years ahead. Where is the $550 Billion Being Invested? As laid out above, the 2,702-page Infrastructure Investment and Jobs Act will cover the Federal portion of our nation’s baseline infrastructure funding for FY22 thru FY 2026 ($650B). It also contains a one-time infusion of $550B in new spending to be allotted to specific infrastructure programs over the next 10 years. The $550B distribution is as follows:

The Pipeline

$110 billion (20%) for roads and bridges. This investment will repair and rebuild our roads and bridges with a focus on climate change mitigation, resilience, equity, and safety for all users, including cyclists and pedestrians. $40B will be reserved for bridges and $16B for mega-project assistance to highway projects of regional importance. $66 billion (12%) for railroads. Funding includes upgrades to and maintenance of America’s passenger rail system and freight rail safety. This is the largest investment in passenger rail since the creation of Amtrak 50 years ago. The legislation invests $66 billion in rail to eliminate the Amtrak maintenance backlog, modernize the Northeast Corridor, and bring world-class rail service to areas outside the northeast and mid-Atlantic.

$50+billion (9%) for cybersecurity and climate change. The legislation makes our communities safer and our infrastructure more resilient to the impacts of climate change and cyber-attacks, with an investment of over $50 billion to protect against droughts, heat, floods, and wildfires, in addition to a major investment in weatherization. $39 billion (7%) for public transit. The largest Federal investment in public transit in history. The legislation will expand public transit options across every state in the country, replace thousands of deficient transit vehicles, including buses, with clean, zero emission vehicles, and improve accessibility for the elderly and people with disabilities. $25 billion (4.5%) for airports. This allocation provides funding for major upgrades and expansions at U.S. airports. Air traffic control towers and systems would receive $5 billion of the total for upgrades. $21 billion (3.8%) for the environment. These monies will go to clean up Superfund and brownfield sites, reclaim abandoned mine land and cap orphaned oil and gas wells with an emphasis on environmental justice communities. $17 billion (3%) for ports. Half of the funds in this category would go to the Army Corps of Engineers for port infrastructure. Additional funds would go to the Coast Guard, ferry terminals, and reduction of truck emissions at ports. $11 billion for safety. Appropriations here are to address highway, pedestrian, pipeline, and other safety areas, with highway safety getting the bulk of the funding. All programs under this allocation aim to help states and localities reduce crashes and fatalities in their communities, especially for cyclists and pedestrians. $8 billion for western water infrastructure. Ongoing drought conditions in the western half of the country will be addressed through investments in water treatment, storage, and reuse facilities.

$65 billion (12%) for the electric grid. This includes the single largest investment in clean energy transmission in American history. It upgrades our power infrastructure, including building thousands of miles of new, resilient transmission lines to facilitate the expansion of renewable energy. It also provides money to bolster cybersecurity efforts for the power grid.

$7.5 billion for electric vehicle charging stations. This will provide funding for the deployment of EV charging stations along highway corridors, to facilitate long-distance travel, and within communities to provide convenient charging where people live, work, and shop. This is an initial investment in building out the first-ever national network of EV chargers in the United States.

$65 billion (12%) for broadband. Includes funding to expand broadband in rural areas and in low-income communities. Approximately $14 billion of the total would help reduce Internet bills for low-income citizens.

$7.5 billion for electric school buses. With an emphasis on bus fleet replacement in low-income, rural, and tribal communities.

$55 billion (10%) for water infrastructure. This funding represents the largest investment in clean drinking water in American history, including $15B dedicated funding to replace lead service lines and $10B for dangerous PFAS chemical remediation. Water, sewer, and stormwater SRF programs will see substantial increased funding including expansion of eligibility for grants and loan forgiveness.

70 Utility & Transportation Contractor | april| 2022

Credit to our friends at Utility Contractors Association of New England, Inc. (UCANE) for their great research and for allowing it to be used for this column. UCANE is one of 20+ partners in the Clean Water Construction Coalition (CWCC), for which UTCA of NJ provides the backbone leadership. The mission of the CWCC is to promote federal actions that increase funding and accelerate project delivery for water infrastructure and related projects.

By: Tim Fitzpatrick, managing partner – Employee Benefits, IOA

ver the last few years, I have written several articles discussing level-funded medical programs and detailing the potential benefits for small and mid-sized employers. For this edition, I would like to highlight a specific program, the ACEC Life/Health Trust, which is designed to benefit the members of the American Council of Engineering Companies (ACEC). I recently sat down with John Krebsbach, National Director of Business Development for the Trust, to answer a few questions designed to provide a deeper insight into the program, its history and some of the benefits of membership. Our discussion is summarized below. What is the ACEC Life/Health Trust? John: The ACEC Life/Health Trust mission is to provide health care benefit solutions and services to support the business objectives of ACEC member firms and the health and well-being of the firms’ employees and families. We are one of the major benefits of joining the American Council of Engineering Companies (ACEC); a Trust that enables ACEC member firms to be pooled as one large employer, which helps us provide more competitive rates on insurance and supplemental insurance – plus complimentary value-added services.

NEWS

program spotlight: acec life/health trust

in 33 states. This plan is an alternate funding model called level funding, which combines the savings of a self-funded plan with the risk protection of a fully insured plan. A unique feature of our program that differs from many level-funded programs is our “Aggregate Only” product which returns 100% of the unused claims surplus (if applicable) back to our groups. Additionally, we offer a number of complimentary and comprehensive value added resources including wellness programs, virtual care and patient advocacy. With more than 1,500 firms & 100,000 members enrolled in the Trust, we are also able to leverage our group purchasing power to offer industry leading ancillary benefits such as dental, vision, life and disability programs. The ACEC Life/Health Trust represents a unique opportunity for certain UTCA member firms, that are looking to explore alternate strategies for building their employee benefits offering. The Trust and its suite of options can provide flexibility and stability in program design, network access and financial upside. For more information on the Trust, including how to qualify for participation in its benefit programs, please contact: John Krebsbach National Director of Business Development (320) 703-4048 john.krebsbach@aceclht.com

When was the Trust formed and what is the primary purpose? John: We have served this exclusive community since 1965, partnering with top leaders in the health insurance and health benefits industry and maintaining stability with over twice the industry standard for financial reserves in excess over anticipated claims. Who qualifies for the program? John: To take advantage of the exclusive ACEC Life/Health Trust, all firms must be full members of ACEC. Full membership (these are specifically ACEC NJ bylaws) is available to firms that maintain a New Jersey office, have 1+ licensed or registered principals, and are engaged in the independent practice of engineering, surveying or other related scientific professions. Firms must meet state licensing requirements and membership dues are based on the number of full-time New Jersey employees.

About the ACEC Life/Health Trust: The mission of ACEC Life/Health Trust (Trust) is "To provide healthcare benefit solutions and services to support the business objectives of ACEC member firms and the health and wellbeing of the firms' employees and families." Since 1965, the Trust has dedicated its efforts to supporting the health, vision, dental, life and disability insurance needs of engineering firms across the country. The Trust does this by partnering with top leaders in the health insurance and health benefits industry to deliver health plans that raise the bar on affordability and quality, with group-negotiated advantages such as lower premiums, reduced administrative costs, more coverage options and wellness programs to help your employees get healthier.

What makes this program unique when compared to other level-funded programs in the market? John: The ACEC Select Plan (utilizing Meritain as the TPA and the Aetna Choice POS network) is available to small-mid-large size firms

Utility & Transportation Contractor | april | 2022 73

UTCA's 2022 Executive Seminar The Bahamas

news

By: Dan Kennedy, Senior Director

resilient group of approximately 80 members and their families braved ever-evolving travel rules, both domestic and international, and winter weather challenges – some facing hours-long delays and over 12 inches of snow – to travel to The Grand Hyatt at Baha Mar in The Bahamas for our Executive Seminar in late January. The Executive Seminar Committee and UTCA Director of Events, Lauren Hagan, organized a trip that offered great options for the group, showcasing the truly beautiful and vast Baha Mar complex and the offerings of greater Nassau. Although we had a long, strange travel day, most arrived on Sunday looking forward to the busy week ahead. Everyone was blown away by the beauty of the resort and the courteous nature of the staff. Baha Mar’s 1,000 acre entertainment and gaming resort was inspired by the natural beauty of the Bahamas, and was fully open, featuring numerous shops, restaurants/bars, pools, beach and a new 15-acre water park. Our guests were immediately drawn to the resort’s seven pools, featuring waterfalls, swim-up bars, and even a built-in aquarium. On the first night, The Welcome Reception was a great way for long-time friends and newer colleagues to kick off the week over some great food, drinks and the NFL Division Championship games. Special thanks are offered to our sponsor for the evening, Florio Perrucci Steinhardt Cappelli Tipton & Taylor LLC. This event would not have been possible without their support. This night was also the first opportunity for the group to gather, and it did not disappoint.

The first full day, Monday, started off with breakfast at the resort’s high-end Regatta Buffet. Following that, Mike McKenna, Esq. of Cohen Seglias Pallas Greenhall & Furman gave a thorough and engaging presentation on two critical industry issues: liquidated damages and stipulated sums. Afterwards, many chose to participate in an optional luncheon and tour of Graycliff Hotel & Restaurant overlooking the downtown of Nassau. Graycliff Hotel & Restaurant – the Caribbean’s first 5-star restaurant – is housed in a historic, colonial mansion set in lush tropical gardens. It of-

Pictured from left, Lou Cappelli, Bob Cavaliere, Eric Paterno and Steve Ballerini at UTCA's Group Golf Day.

fers a world-class experience in terms of cuisine, wine and cigars. The wine cellar was a fan favorite, featuring a renowned wine list with an inventory of over 250,000 bottles from over 5,000 vintners in 20 countries. Monday evening was also the first of several evenings that guests enjoyed the many culinary establishments in the area – from high-end, white tablecloth dining experiences by renowned international chefs, to more casual spots, housed in colorful beach shacks, our guests had a wide range of options for some delicious meals and drinks. Tuesday kicked off with a group golf outing at Baha Mar’s Jack Nicklaus-designed Royal Blue Golf Course. The front nine of the

Peter Smith of Connell Foley addresses the crowd at a business meeting.

Utility & Transportation Contractor | april | 2022 77

Feature Story

course offered dramatic views of beautifully maintained fairways with white sand dunes. The back nine transitioned to limestone “moonscapes” with elevation changes and water views. The weather and playing conditions were amazing and our guests had a great day, which many chose to repeat later in the week. On Wednesday and Thursday, in addition to the team building and networking, the business meetings provided insight and perspectives on the work our members do each day. Lou Cappelli and Brian Tipton of Florio Perrucci Steinhardt Cappelli Tipton & Taylor discussed the Prompt Payment Act and exposure for contractors under recent revisions to the Apprenticeship Program

Portion of the group enjoying the Farewell Dinner.

78 Utility & Transportation Contractor | april| 2022

Law. In addition, Mitchell Taraschi and Peter Smith partners from Connell Foley LLP discussed Public Bidding Issues and Developments. On Friday, many in the group took a deep dive into Nassau's culture and culinary scene on a half-day tour in custom-built Jeeps. The group listened to insightful commentary as they traveled between some of the island's top highlights, including the Junkanoo experience, Fort Charlotte, the Queen's Staircase, and more. The group finished up with lunch at a local fish fry, where they got to taste some local delicacies and learn about the islands' cuisine. At the end of the week, we held our Farewell Reception on the balcony of the Grand Hyatt. The group was treated to the best weather yet and a spectacular sunset to close out the day. There was great food, drinks and many laughs – a perfect way to end an amazing week in The Bahamas. Special thanks to our Farewell Sponsors Cohen Seglias Pallas Greenhall & Furman for making our evening such a memorable one. All in all, Baha Mar was a wonderful experience with the weather warming every day. While the venue offered some great experiences, some of the best times were had simply hanging by the pool and enjoying the time with old and new friends / colleagues. The group returned with enjoyable memories with already many booking return plans in the future.