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Congratulations Juan Gutierrez,

inducted into the New Jersey Construction Industry Hall of Fame

Linda Gardner,

recipient of the Larry Gardner Memorial Award

Henry Meyers,

recipient of the Robert A. Briant, Sr. Memorial Award From your friends at . . .

www.bindermachinery.com

2820 Hamilton Blvd. South Plainfield, NJ (908) 561-9000

201 North Route 73 Winslow Township, NJ (856) 767-5900


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President’s Message   When I was asked to serve on the UTCA Board’s Executive

Committee, my first thoughts were not only the honor of having been asked but also the intimidation I felt in knowing that in a few years I would be sworn in as President of this great organization. The intimidation I was feeling grew as plans for the 50th Anniversary Convention included the Walk of the Past Presidents. However, being able to join this impressive group made me realize that I am not alone in this effort. The prior UTCA Presidents all offered their encouragement and I know I can count on their guidance and support as well as the support of the entire Board of Directors.   An anniversary celebration is a great way to reflect on the hard work and difficult times that were overcome to create our organization as well as laugh about the good times and remember the giants of the industry that made us who we are today. In one of the most moving speeches I have ever seen, Hall of Fame recipient Juan Gutierrez extolled the virtue of following five points in order to live a good life. One of those points was to look ahead and see where you want to go. It is that point where I want to focus my efforts as UTCA President. The industry has changed a great deal over the past 50 years and there are significant challenges facing us which we must overcome in order to be successful. While we work on the day to day issues, such as creating a solution to the Transportation Trust Fund crisis, legislative initiatives and other activities, I feel the need to look ahead in order to make sure that the Association is doing the things necessary to address the problems facing our industry and we are able to celebrate again 50 years from now. We cannot rest on our laurels of past successes. I hope to build upon the ongoing work of the Board, the Executive Committee and the initiatives begun under the leadership of recent Presidents Joe Walsh, Harry Chowansky and Scott Lattimer. Just as Juan joked with his boys “don’t screw it up” when he turned over the reins of the company to them, I feel the

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prior presidents are telling me the same thing.   Part of working towards the future is to focus on increasing the membership of the Association as well as the participation of the membership. There are numerous committees within the UTCA that need your help and I encourage everyone to lend their hands to our various efforts. At the convention, we held an extremely successful auction to benefit the Constructors for Good Government PAC fund. This fundraiser completed a year of increasing the Association’s visibility in Trenton and we need the participation of all of our membership in the PAC for the long term viability of the industry.   Congratulations to Juan Gutierrez on his induction into the New Jersey Construction Industry Hall of Fame and congratulations to Linda Gardner on receiving the Larry Gardner Memorial Award and to Henry Meyers, recipient of the Robert A. Briant, Sr. Memorial Award. A special thank you to all of the sponsors of the activities at the convention as well as to all of the exhibitors. Without your generous support the Association could not continue to be successful. Bobby Briant and the entire staff of the UTCA deserve special recognition for the hard work it took to carry out the 50th Anniversary Convention. I have heard nothing but compliments and rave reviews from everyone who attended.   I want to thank Nelson Ferreira and the entire Ferreira organization as well as my family for giving me the support and the time to work on behalf of the Association.   Let’s build on the previous 50 years and lead the industry into the next 50 and make our original five founding members proud of the organization they created and what it has become.

Best regards,

Tino Garcia Utility and Transportation Contractor, OCTOBER 2015


OCTOBER 2015

Contents

Volume XL, Number 5

Published Bimonthly During 2015 Office Address: 1670 Route 34 North Farmingdale, NJ 07727 Mailing Address: PO Box 728 Allenwood, NJ 08720 (732) 292-4300 FAX: (732) 292-4310 www.utcanj.org Publisher: Robert A. Briant, Jr. Editor: Michael DeVito Editorial Contributors: Anthony Attanasio Mike DeVito Dennis Hart Dan Neville

Features 4 50th Anniversary Convention 15 TransOvation Workshop Explores Breaking Down Barriers To Innovation 37 A Message From Assembly Speaker Vincent Prieto 63 The Dirt On The Mechanic’s Lien And Payment Bond Law 77 The Affordable Care Act 88 Pollution Solution: Pollution Liability Policies Offer Affordable Protection 97 New Training Facility For Local 172

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Advertising Manager: Helene Nasdeo Photographer: Michael DeVito Cover Photo: Image Up Production/Graphics: Lauren Hagan Helene Nasdeo Circulation: Helene Nasdeo Printed By: Farmingdale Printing & Copy Center

Departments 2 23 30 47 52 69 81 102

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

Affiliations: ARTBA Clean Water Construction Coalition Water Infrastructure Network UTILITY AND TRANSPORTATION CONTRACTOR (ISSN 0192-4843) is published six times a year by the Utility and Transportation Contractors Association of New Jersey, 1670 Highway 34 North, Farmingdale, NJ 07727. Periodical postage paid at Farmingdale, NJ and additional mailing offices. POSTMASTER: Send address changes to UTILITY AND TRANSPORTATION CONTRACTOR, PO Box 728, Allenwood, NJ 08720.

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Cover Story

50th ANNIVERSARY CONVENTION FEATURED TIM McCARVER & AWARDS TO HENRY MEYERS, JUAN GUTIERREZ & LINDA GARDNER

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Tino Garcia Inducted As President and Past Presidents Were Honored

  TCA’s 50th Anniversary Convention, was held earlier this month at the Borgata Casino in Atlantic City. The convention was a major success attracting approximately 1300 people over the three day event. The convention once again proved to be an important networking event while also providing great entertainment and with a new energy thanks to the new venue. On the convention floor more than 90 companies were represented covering the full gamut of businesses in the construction industry. Exhibitors remarked that the new venue was a welcome change and that foot traffic was up significantly.   The annual convention opened on Thursday morning, October 1, with a golf outing at Galloway National Golf Club in Galloway, NJ. The golf outing and luncheon, sponsored by LoJack, was attended by more than 60 golfers despite the inclement weather. That evening convention attendees and exhibitors participated in

the Opening Reception, sponsored by Foley, Incorporated, which attracted a large crowd where attendees enjoyed a variety of food and drinks. The Friday Luncheon began with a presentation of the 2015 Larry Gardner Memorial Award to Linda Gardner of Brent Material, the granddaughter of Larry Gardner and daughter of Dick Gardner. Linda was selected for her years of support to the association as an active member, advertiser, exhibitor and sponsor as well as a friend. Immediately following the award presentation

Friday Luncheon Keynote Speaker, Tim McCarver, is pictured with Robert Briant, Jr.

Linda Gardner accepts The Larry Gardner Memorial Award from Scott Lattimer. 4

those in attendance heard renowned baseball analyst Tim McCarver discuss his long career on the baseball diamond and in the broadcaster’s booth. McCarver relived World Series Championships, interactions with baseball greats Mickey Mantle and Willie Mays as well as other memories that captured every baseball fan’s full attention for the duration of his speech. Tim McCarver’s appearance was sponsored by our friends at Penn-Jersey Machinery. Utility and Transportation Contractor, OCTOBER 2015


Friday night’s President’s Reception, sponsored by C & H Agency and United Airlines was standing room only and proved to be the place to be in Atlantic City. Several friends from the political world mixed with the crowd including Congressman Frank LoBiondo, Senator Paul Sarlo, Assemblyman John Wisniewski, and Assemblyman Sean Kean. Recognizing the strong partnership with our friends in labor we were very pleased to be joined by leaders and representatives from the Operating Engineers Union Local 825 and the Laborers International Union Locals 472 and 172.

bor Employer Cooperative, High Steel Structures, JESCO, M.L. Ruberton Construction, Northeast Remsco Construction, Tilcon, South State and Vianini Pipe. Special congratulations to committee chairman George Helmer for his continued efforts in making this event a huge success!   On Saturday morning, UTCA conducted a 5K run and a 3K walk to benefit the Toys For Tots program. George Harms Construction and Cohn Reznick sponsored the event. UTCA convention attendees continue to support the “Toys For Tots” program in collaboration with the U.S. Marines. Following the run the breakfast program featured the presentation of the traditional manhole cover by Campbell Foundry to outgoing President Scott Lattimer in recognition of his year of service. The breakfast closed with the drawing of “his” and “her” watches and a Microsoft Surface by Gary Rispoli of Construction Risk Partners which sponsored the drawing. The exhibit floor closed with the grand prize drawing for a trip to the Caribbean which was sponsored by Hoffman Equipment. The winner of the grand prize was George Helmer.

Joseph D’Annunzio, left, is pictured with Franklyn Grosso at UTCA’s PAC Auction Party.

  Following the President’s Reception, UTCA conducted its annual PAC Auction Party which benefits the Constructors for Good Government PAC. This year’s PAC Auction was set up nightclub style and featured comedian Jeff Norris who is a regular on Comedy Central. After performing for the group Jeff acted as guest auctioneer and along with the PAC Auction Committee helped to raise more than $46,000. This was one of the largest amounts ever raised at this event. Having a strong PAC presence is critical to advancing the industry’s legislative and regulatory initiatives. More than 100 items were available in both “silent” and “live” phases of the auction. The highlight of the live auction featured two International First Class tickets donated by United Airlines International. We would like to thank United Airlines for their continued partnership and support of the Association’s activities.    The association wishes to thank those firms that contributed items to the auction, those individuals that purchased items and the companies that sponsored the PAC Auction Party. These sponsors included Atlantic Concrete Products, Cohen Seglias Pallas Greenhall & Furman PC, Earle Asphalt, EIC Associates, Engineers La-

The winner of the Fitness Challenge was Bob Jennings from Ferreira Construction.

Tim Watters of Hoffman Equipment, left, presents George Helmer with the Grand Prize Carribbean Vacation.

  Saturday afternoon saw the return of two popular programs that were first unveiled last year. The 2nd annual Spouse’s Program featured Medium Craig McManus at the restaurant 28 West. His appearance, which was sponsored by Ferreira Construction and Tilcon lead to many “connections” and was thoroughly enjoyed by the attendees. Also Saturday afternoon the 2nd Annual UTCA Poker Tournament took place in the Borgata Poker Room. The event, which was sponsored by Montana Construction, generated a great deal of enthusiasm with 27 participants. This year’s winner was Michael O. Renda and in second was last year’s winner Ed Zoranski. Congratulations gentlemen.   Saturday night’s dinner dance was a true celebration of the history and tradition of the UTCA. The night began with UTCA recognizing the Past Presidents that served the association during its 50 year history. Each of these former presidents processed into the dinner and were presented with commemorative watches by incoming president Tino Garcia. A total of 25 former Presidents were in attendance and received a standing ovation from the capacity crowd.   Following the Walk of the Presidents, Juan Gutierrez was inducted into the New Jersey Construction Industry Hall of Fame. Juan served the industry in many capacities throughout his long career and has also served the community by his generous philan-

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The Kenny I Orchestra provided music and entertainment which got the crowd onto the dance floor. Additionally, the return of two photo booths allowed attendees to create lasting memories with friends and family. The Saturday Dinner, Reception and photo booths at the convention were sponsored by Binder Machinery, Komatsu America Corporation, Wirtgen America and Takeuchi. Many of the dinner dance attendees commented that this year’s event felt more like a family reunion than a convention and they could not wait for next year’s event.

Saturday Spouse’s Program presenter, Craig McManus, addresses the crowd.

thropic endeavors. His heartfelt and inspiring speech was one of the highlights of the convention.   Scott Lattimer was recognized for his year of service and success as association president, and Paul Fader, UTCA’s General Counsel, gave the Oath of Office to Tino Garcia as UTCA’s new president. Following his induction, Tino thanked everyone for their support and reviewed his agenda for the upcoming year.   The evening program continued with the presentation of the inaugural Robert A. Briant, Sr. Memorial Award to Henry Meyers, President of Anselmi & DeCicco. The award celebrated his achievements during his tenure as a UTCA Board Member and his leadership on association committees. Henry Meyers thanked his family, his co-workers at Anselmi & DeCicco as well as the UTCA Board of Directors. He also expressed his gratitude in being selected as the first recipient of the Robert A. Briant, Sr. Memorial Award. This award recognizes the tireless efforts of Bob Briant, Sr. during his many years of service to the UTCA, and is considered the association’s most prestigious award.   A retrospective video was produced with photos of the illustrious 50 year history of UTCA and also included interviews with George Harms, J. Fletcher Creamer, Jr. and UTCA’s first President Franklyn Grosso.   The program concluded with a toast in celebration of the 50th anniversary of UTCA conducted by Mr. Grosso.

Juan Gutierrez makes his acceptence speech after being inducted into the New Jersey Construction Industry Hall Of Fame. 6

Tino Garcia, left, recognizes Scott Lattimer for his year of service as President of the association.

  The UTCA staff and convention committee are applauded for the planning of this year’s event, and the change of venue to the Borgata Casino was a big success. CEO Bob Briant, Lauren Hagan, Helene Nasdeo, Dan Neville, Dennis Hart, Anthony Attanasio and Mike DeVito did a great job with this special event and are thanked for their hard work. UTCA will return to the Borgata Casino for the 2016 convention.

Paul Fader, right, inducts Tino Garcia as President of the Association President. Utility and Transportation Contractor, OCTOBER 2015


Pictured left to right at UTCA’s PAC Auction Party is Bob Briant, Jr., Assemblyman Sean Kean, Assemblyman John Wisniewski, Senator Paul Sarlo, Congressman Frank LoBiondo and Anthony Attanasio.

Mark Your Calendar For Next Year’s Annual Convention September 29 - October 2, 2016

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TRANSOVATION WORKSHOP EXPLORES BREAKING DOWN BARRIERS TO INNOVATION By: Mark Holan, Editorial Director, ARTBA   New products and processes to improve transportation in-

frastructure construction and maintenance are emerging at an unprecedented pace. But the latest technology and techniques aren’t much good without federal and state transportation agencies giving the green light to use them.   At ARTBA Foundation’s 5th Annual Dr. Don J. Brock TransOvation Workshop, Nov. 16-18, at the 3M Innovation Center in St. Paul, Minnesota, a key interactive panel session will explore how to break down barriers in bringing new innovations into the U.S. transportation construction marketplace. This panel will lead into a workshop, where attendees will be tasked with a similar challenge.   “I’d like to get into a healthy discussion, a productive conversation about what are the barriers, what are the restrictions and how have organizations been able to navigate the problems?” said John Hillman, president and CEO of HC Bridge Company, and co-moderator of the session.   The other moderator is John Huyer, contract administration engineer at the Federal Highway Administration (FHWA) in Minneapolis/St. Paul. He will review rules of the road for allowing innovations to reach Federal aid highway construction projects.   Transportation department officials from Maine, Virginia and California also will provide step-by-step case studies that spotlight how new products reached the market in their respective states. They will help explore how industry and agency partners might streamline the process.   “Right now, if something is approved in Virginia that doesn’t mean that it’s going to be approved in North Carolina,” said Jeff Milton, a 41-year veteran bridge preservation specialist at the Virginia Department of Transportation. “With 50 state DOT’s there are 50 ways to evaluate these products, and that’s obviously a challenge to the industry.”   Once a product or process is found safe and effective, there needs to be quicker way to get it to market “without having to reinvent the wheel,” Milton said. Other panelists include:   • Dale Peabody, director of transportation research, Maine Department of Transportation   • Barton Newton, director of complex bridges, Parson Brinckerhoff   • Mark Henderson, owner, LJB Inc.   • Mike Keever, structure design chief, California Department of Transportation

  • Lester Hensley, CEO, EMSEAL   During the Nov. 17 session, the group also will explore the different perspectives of construction and maintenance divisions; barriers to testing new technology; and how public-private partnerships and design-build contracts incentivize contractors to implement innovations.   Hillman, a past presenter at TransOvation workshops, said the gathering is one of his favorite industry events of the year.   “It’s not only transportation companies, but companies with cultures of innovation that have opportunities for synergies,” he said. “It’s an open forum for learning creative ways to solve the enduring problems of our transportation dilemma.”   Ross Smith is among the outside-the-industry thought leaders participating in the event. He has spent over 20 years developing and testing software for Microsoft and knows how to cultivate an environment that can lead to increased collaboration, productivity and profit.   “It’s interesting to see influence of technology on transportation infrastructure,” he said. “You wouldn’t normally put these industries together, but with the pervasiveness of technology, you see it more and more.”   Roads and vehicles are getting smarter, he said, through the impact of GPS navigation and dynamic tolling. He said data collection will continue to have a big impact on both road builders and car builders.   Attendees will also hear from other fantastic innovation thought leaders, including Ted Zoli, Senior Vice President with HNTB and John P. Banovetz, Vice President at 3M Corporate Research Laboratory.   TransOvation plays off three key words: transportation, innovation and ovation. The event is named after Dr. J. Don Brock, the late founder of Astec Industries, who secured over 90 U.S. and foreign patents on construction machinery and drying equipment.   The 3M Innovation Center at the company's St. Paul headquarters is one of 50 similar centers in 40 countries. The center includes interactive displays, films and presentations about 3M technologies and the company's culture of collaboration.

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CONGRATULATIONS TINO GARCIA UTCA PRESIDENT

JUAN GUTIERREZ

NJ CONSTRUCTION INDUSTRY HALL OF FAME

HENRY MEYERS

ROBERT A. BRIANT, SR. MEMORIAL AWARD

LINDA GARDNER-VOLLERS

LARRY GARDNER MEMORIAL AWARD

THE CREAMER COMPANIES 16

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UNION PAVING & CONSTRUCTION CO., INC. GENERAL CONTRACTOR fxÜä|Çz axã ]xÜáxç f|Çvx DLHG Congratulations to

Tino Garcia - President of UTCA Juan Gutierrez – Hall of Fame Henry Meyers – Robert A. Briant, Sr. Award Linda Gardner – Larry Gardner Award Thank You for Your Service in The Construction Industry And We Wish You Continued Success! Union Paving & Construction Co.,Inc. 1140 GLOBE AVE. MOUNTAINSIDE, NJ 07092 TEL. 908.232.4100 FAX 908.232.0738 20

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The Pipeline

By: Dennis Hart, Director Of Utility Operations   The New Jersey Environmental Infrastructure Trust and the New Jersey Department of Environmental Protection collectively administer the New Jersey Environmental Financing Program. Through a series of public meetings around the state, the Environmental Financing Program rolled out new financing initiatives which should help put more funding out on the street which will lead to more construction projects.   One of the most significant initiatives of the program is to focus on the correction of Combined Sewer Overflow Systems (CSO’s). Combined sewer systems are located in New Jersey’s urban areas where, during light rainfall, storm water is directed into the sewer treatment system. However, storm water usually overwhelms the systems and in order to prevent wash-outs of the treatment plants, CSOs overflow points were constructed. There are over 230 CSO’s in New Jersey. Under past DEP and EPA orders, municipalities and sewerage authorities constructed mechanisms to capture solids and floatables which were fouling our waterways during each overflow. It is now time for each owner of a CSO to correct the problems caused by the discharge of untreated wastewater from the systems. A number of years ago the City of New Brunswick took the initiative to separate their sewer system from their storm sewer system which eliminated the discharge of untreated wastewater. Such a separation of the systems may not be financially or physically practical in our other older urban areas. Solutions to the problem include the construction of in-line storage units to hold waste water within the collection system during a storm and the release of that wastewater for treatment when the storm flows subside. Removal of extraneous flows from the system also must be implemented.   In order to assist in the investigations, designs and construction of CSO treatment systems, the Environmental Financing Program is offering a number of financial incentives:   • Offering 100% interest-free financing to help CSO permittee’s develop long-term control plans for the CSO watershed.

  • Allowing borrowers to convert their short-term construction loans into long-term loans   • Offering 100% interest-free DEP financing to communities in a CSO watershed sponsoring construction projects which reduce or eliminate excessive infiltration/inflow or extraneous flows. Other significant features of the proposed changes to the program include:   • Clean Water construction projects will receive loans with 75% interest free and 25% market rate financing from NJEIT.   • Opportunities for Principle Forgiveness Loans and interestfree DEP financing for CSO projects and projects within the Barnegat Bay Watershed.   • Projects to correct problems due to Superstorm Sandy or to prevent future storm related problems will receive 19% of the loan as a Principle Forgiveness portion, 56% DEP interest-free financing and 25% market rate NJEIT loan.   • Small drinking water systems serving a population of less than 10,000 customers are eligible for a loan consisting of 50% principle forgiveness, 25% zero interest loan and 25% market rate loan. If funds are available these same terms will be offered to larger systems as well.   Government agencies needing to upgrade their wastewater and drinking water systems are not taking advantage of the fantastic financing terms offered by the Environmental Financing Program. Not enough projects are being undertaken to address the billions of dollars of construction needed to improve New Jersey’s waterways. In order to assist in this effort and to accelerate the amount of construction in New Jersey, the Board of Directors of the UTCA has directed the staff to initiate a program in 2016 to meet with government agencies and discuss with them the advantages of funding their construction project needs through the NJEIFP. We will be reporting on the progress of this initiative in future articles.

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Safety Perspective

WHY ALL THE DAMAGED CORDS? By: Matt Cocuzza, Safegate Safety Solutions

  Per the 2013 Bureau of Labor Statistics (BLS) report, the most recent data available, incidents in the construction industry accounted for 828 fatalities of workers. That’s 828 families who lost a loved one without getting to say goodbye. Each of these 828 workers went to work like any other day simply to provide for their family, except these 828 workers never came home.   Of these 828 unwarranted fatalities, more than half were victims of what OSHA calls the “Fatal Four”. The “Fatal Four”, for those of you who don’t know, are the top four causes of fatalities in the construction industry. These four leading causes of worker deaths are falls, struck-by-object, electrocution, and caught-in/between. This article will focus on a cause that contributed to 71 (8.6%) of the 828 fatalities in 2013: electrocution.   Since I started working for Safegate Safety Solutions in 2014, I’ve easily inspected hundreds, if not over 1,000 construction sites. I inspect for vulnerabilities in safety that put the lives of workers at risk. I walk every site top to bottom and edge to edge in search of violations of standards set forth by OSHA. Of all the violations I regularly observe on construction sites, one in particular is found on almost every site. This particular violation is the use of damaged extension cords.   Whether it is a missing ground prong, a torn jacket, or an illegal splice, it’s everywhere. I find damaged cords on almost every single construction site I inspect. Yes, I pull every plug to check the prongs. I walk every cord length in its entirety in search of these discrepancies. Why? Well, because what may seem like a minor nick in a cord or just a broken ground prong is actually an electrocution hazard. It is an electrocution hazard that contributed to the 71 deaths by electrocution on construction sites in 2013.

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  A few simple changes before the work day begins can fix this issue and potentially save many lives. Prior to beginning work (and definitely prior to plugging in any cords) inspect your extension cords for any damages. Make sure the cord has all three prongs. Inspect the entire length of the cord for any abrasions or tears in the jacket that expose the inside wiring. Make sure the cord is one continuous length and not spliced together. If any issues are found, the cord needs to be taken out of service immediately.   When using an extension cord, be aware of where the cord is being run. You do not want to expose the cord to any strain points that can potentially tear the jacket while in use. Do not staple or hang cords from nails. You also want to make sure you are using a cord rated for use in construction by the NEC. These cords will have designations for hard or extra-hard usage such as S, ST, SO, STO, SJ, SJO, SJT, and SJTO.   Taking the time to check an extension cord before use can potentially mean the difference between life and death. I advise all of my clients to regularly inspect the extension cords being used on their site for damages. Normally they have the contractor remove the cord from the site, but repeat offenders have led some of my clients to go as far as cutting the cord ends off rendering them useless.   This is a resolvable issue from both the bottom up and the top down. Every employee should do their part when it comes to electrical safety. Those who use extension cords should be sure they are using a damage-free cord and using it correctly. Site management should be regularly checking in to make sure everyone is compliant. A team effort in safety can save many lives.

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Continued from Page 47 language than did the 1986 ISO CGL form at issue here, including a different definition of “occurrence” and contained a subcontractor exception to the “Your Work” exclusion. The 1973 ISO form had no subcontractor exception, and courts were unwilling to distinguish a subcontractor’s faulty workmanship from that of the general contractor for purposes of defining covered property damage.   The court concluded that when the insurance industry determined to include the subcontractor exception in the 1986 ISO form, contractors would now “reasonably expect that consequential damages caused by their subcontractors’ faulty workmanship constituted property damage caused by an occurrence.” In so holding, the Court rejected the insurers’ arguments that interpreting “occurrence” to include consequential damages caused by a general contractor’s subcontractors converted a CGL policy into a performance bond. Unlike insurance policies, sureties will seek indemnification from a defaulting contractor. In addition, contrac-

tors typically require their subcontractor to carry insurance naming the general contractor as an additional insured.   The Court declined to rule on the insurers’ arguments that coverage was nonetheless barred by other applicable exclusions since that issue was not addressed by the Law Division and remanded without prejudice to the insurers’ rights to argue these points before the trial court.   The holding in this case is important for general contractors because it potentially provides them with greater financial protection for their subcontractor’s faulty work in construction defect cases in New Jersey. This decision may prompt re-tenders to insurers that had previously denied coverage based upon “no occurrence” or “no property damage” conclusions. Contractors should review the impact of this decision with their brokers and be alert to changing language in new policies.   The information contained herein is for informational purposes only as a ser-

vice to the public, and is not legal advice or a substitute for legal counsel, nor does it constitute advertising or a solicitation.

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A MESSAGE FROM ASSEMBLY SPEAKER VINCENT PRIETO We Must Replenish the Transportation Trust Fund Before Time Runs Out

    In January of 2014 when I officially took office as Speaker of the New Jersey General Assembly, I began to talk publicly about an issue that had not been discussed nearly enough to that point: the urgent need to raise new revenues to fund our state’s depleted Transportation Trust Fund. This was almost two years ago, and the situation has since become even more urgent. It’s time for all stakeholders involved in this issue, from the Governor to the legislature to the business community to the taxpayers, to realize the truth and the stakes. If we do not act in this upcoming legislative session to finally replenish the Transportation Trust Fund there will be dire consequences felt throughout our state. We must act to avoid this fate.   The case for funding transportation has been made many times now, but the argument is still just as strong. This past budget year was the last time that it will be financially possible to move forward without new revenue. From this point forward, 100% of the current TTF will be paying for debt on past projects, meaning there will not be a single cent available for new road repairs. Meanwhile the condition of our highway, bridge and public transit infrastructure continues to deteriorate, costing the average New Jersey driver $600 per year in automobile repairs and untold amounts of lost productivity and missed time with family spent sitting in traffic. The situation is intolerable and it must be corrected now.   New Jersey’s gasoline tax, which is the sole dedicated funding source for the TTF, has still not been in-

creased in decades and now ranks as the second lowest in America behind only Alaska. Meanwhile elsewhere in the Northeast state gas taxes have risen gradually for years, ensuring that drivers in New York, Pennsylvania and Connecticut have the solid transit infrastructure that we lack. New Jersey -- a state that relies on its location between many of America’s largest and most prosperous cities for much of our core businesses and industries -- is falling behind and the trend must be reversed.   A modest increase in the gasoline tax that still places it below those of our neighbors would go a long way toward solving these problems. The new revenue would be dedicated only to transportation with safeguards in place to prevent it from being diverted to other areas. Increased transportation funding would lead immediately to road repair projects, putting people to work and causing positive ripples in our state’s economy. All the problems we face -- funding the state pension, creating jobs, stabilizing property taxes and much more -- are interconnected and an influx of new transportation funding would help us begin to dig out of the other holes we find ourselves in.   The time for delay was long behind us in January of 2014, and it’s now even further back in the rear view mirror. I urge all responsible New Jersey residents to do what we must do and be prepared to support legislation to replenish the Transportation Trust Fund this year.     Assembly Speaker Vincent Prieto is a Democrat who represents the 32nd legislative district, which includes parts of Hudson and Bergen counties.

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Legal Dig

FAULTY WORKMANSHIP BY A SUBCONTRACTOR MIGHT CONSTITUTE “PROPERTY DAMAGE” AND AN “OCCURANCE” UNDER A CGL POLICY By Paul T. Fader, Esq., Association Legal Counsel   In a very significant decision impacting insurance coverage, the Appellate Division has held that consequential damages caused by subcontractors on a construction project constitute “property damage” caused by an “occurrence” under a CGL policy issued to the general contractor.   A contractor’s commercial general liability (“CGL”) policy covers unexpected personal injury or unexpected property damage resulting from the contractor’s work. Because a CGL policy is not a performance bond guaranteeing the work, it does not cover the cost of replacing or correcting defective work itself. These types of damages (remedial costs) are known as “business risk” damages for which the owner and contractor themselves assume the risk. This concept is generally embodied in a policy exclusion known as “Your Work.” However, the more recent CGL policies typically contain an exception to the “Your Work” exclusion for work performed by subcontractors.   In Cypress Point Condominium Ass’n, Inc. v. Adria Towers, LLC, ___ N.J. Super. ___ (App. Div. July 9, 2015), a condominium association (Cypress Point) sued multiple parties, including insurers under CGL policies for consequential damages arising out of defective construction work performed by subcontractors. The association alleged that the developer, which served as the general contractor on the project, together with the general contractor’s roofing subcontractor, failed to properly install a roof, which led to water infiltration and resulting damage to the condominium unit owners’ common property and individual units.   In the Law Division, an insurer moved for summary judgment on the grounds that there was no “property damage” or “occurrence,” as required to trigger coverage under the CGL insurance policies issued by the carrier. The insurer contended that pursu-

ant to the holdings in Weedo v. Stone-E-Brick, Inc., 405 A.2d 788 (N.J. 1979) and Firemen’s Insurance Co. of Newark v. National Union Fire Ins. Co., 904 A.2d 754 (App. Div. 2006) neither the cost of repairing or replacing the insured’s defective work nor the cost of repairing resulting damage to other work is covered. The Law Division agreed and granted the motion. Plaintiff appealed, and the Appellate Division reversed.   In reversing the trial court’s decision to grant summary judgment in favor of the insurers, the Appellate Division held that the consequential damages to the common areas of the complex and the individual unit owners’ property, caused by the subcontractors’ faulty work, constituted “property damage” and an “occurrence” under the general contractor’s CGL policy.   The Court placed great emphasis on “the developer’s reasonable expectation that, for insurance risk purposes, the subcontractors’ faulty workmanship is to be treated differently than the work of a general contractor.” Additionally, the Court found that the “majority rule” of other jurisdictions is that construction defects causing consequential damages constitute an “occurrence” under the CGL policy.   The Court distinguished the two key cases upon which the Law Division had relied, Weedo v. Stone-E-Brick, Inc., 81 N.J. 233 (1979), and Firemen’s Insurance Co. of Newark v. National Union Fire Ins. Co., 387 N.J. Super. 434 (App. Div. 2006). The Court noted that those cases “involved only replacement costs flowing from a business risk, rather than consequential damages caused by defective work.” They also interpreted a 1973 standard CGL form of the Insurance Services Office, Inc. (“ISO”) that had different Continued on Page 31

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Legislative News

FEDERAL & STATE UPDATE By: Anthony Attanasio, Executive Director   Happy Fall everyone. I trust as you’re reading this you’re sipping something that is infused with pumpkin and enjoying the crisp fall weather. The legislature has been mostly quiet since our last issue due mostly in part to the entire Assembly being up for election in November. Here are a few of the political and legislative happenings that occurred over the summer.   After many months of hard work by UTCA staff and our Public Private Partnership (P3) Task Force, a thoroughly amended version of the P3 bill reached the Governor’s desk. UTCA staff were pleased with the amendments to the bill and our CEO Bob Briant personally wrote the Governor urging him to sign this important piece of legislation. Due to the inaction of renewing the soon to be insolvent Transportation Trust Fund (TTF), attracting private sector investment to support public infrastructure has become even more critical. Unfortunately, Governor Christie chose to conditionally veto the P3 legislation but did so in a way that makes the bill practically unsalvageable. The Governor sought to make many structural changes to how the P3 program would be operated, which made it problematic for many of the bill’s supporters and legislative sponsors but went a step further by striking prevailing wage from the legislation, which UTCA and our partners in organized labor cannot support. At this point it appears that it is back to the drawing board for supporters of P3 projects as the changes the Governor suggested through his CV are nonstarters for many of the bill’s supporters.   In regards to the TTF, while there has been no direct action from the legislature or the Governor since our last issue, UTCA staff and Board members continue to crisscross the State meeting with legislative leaders and representatives of the Administration in an effort to keep the issue on the top of everyone’s minds for the lame duck session of the legislature this November. Senate President 52

Sweeney and Assembly Speaker Prieto continue to push the issue both privately and publicly and in September there seemed to be a shift in Republican Leadership. For the first time since this debate heated up more than a year and a half ago Governor Christie and Assembly Minority Leader Jon Bramnick both indicated they would support an increase to the gas tax as long as there was some form of tax relief attached to it. While transportation advocates and enthusiasts might argue that one should not be coupled to the other, that in fact the need and importance to fund infrastructure should be enough of a reason to increase the gas tax, political reality is such that Republicans feel they need a victory to hand taxpayers in New Jersey prior to increasing the gas tax. As taxpayers I doubt there is much argument that some form of tax relief would be welcome in our highly taxed State, and the Democrat leadership in the legislature has indicated that they are open to discussing a reform to NJ’s estate and inheritance taxes as a means to address the issue. Stay tuned.   The UTCA has been busy representing the industry’s best interests in several forums and has generated positive press coverage in the process. In August UTCA Executive Director Anthony Attanasio was asked to appear on a panel of transportation experts before the Senate Legislative Oversight Panel to discuss much needed reform of the Port Authority of NY & NJ’s (PANYNJ) transportation capital plan prioritization. Attanasio focused on the need for PANYNJ to return to its roots as a port region transportation infrastructure organization and to move away from real estate investment which has not proved successful for the agency. Specifically, Attanasio addressed the need for focus and funding on a new trans-Hudson tunnel and the need for a new, not refurbished, Port Authority Bus Terminal. The need for New Jersey to receive its fair share of PANYNJ funding was driven home and both topics Utility and Transportation Contractor, OCTOBER 2015


saw significant coverage in both print and radio media coverage. In September at the NJ Chamber of Commerce/NJ Business and Industry Association’s joint Business Summit in Atlantic City, UTCA CEO Bob Briant Jr. was on a panel of experts assembled to address the transportation/infrastructure crisis facing our State. Bob’s testimony truly shed light on the crisis facing the TTF and how current spending levels are not keeping up with our infrastructure’s needs. Bob’s testimony was the highlight of the panel and was heavily covered in print and television media outlets. At both panels UTCA was the only industry association invited to participate on these critical issues.   UTCA continues to be the leading voice in Trenton and Washington D.C. for our industry. Whether it is proving 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 can only be made possible by your support of the Association and more importantly your support of the industry PAC Constructors for Good Government. If you have not already made a contribution in 2015, please consider doing so. UTCA plans to be very active in the lame duck session of the legislature and a robust PAC only strengthens our voice.   Finally I want to take this opportunity to congratulate Scott Lattimer on a great year as President of the UTCA. Scott’s leadership and passion for the industry made him an excellent President and we wish him well in his next role with the Association. I would also like to welcome our new President Tino Garcia. Everyone at the UTCA is looking forward to working with Tino to continue to successfully advocate for the industry during his term.

Continued from Page 81 increasing number of companies with strong security programs are suffering data breaches because a third-party vendor with access to data or the company’s network doesn’t have a strong security program. Target’s breach last year occurred because its HVAC company had access to their network and one of its employees was the victim of a phishing email. What should a company do in the face of a security breach?   It really depends on the security event, but it boils down to identifying the breach, gathering the right people to make decisions, acting swiftly, documenting decisions and actions, and executing a pre-determined security incident plan. Communication is extremely important, ensuring that all the right people understand their role/responsibilities in resolving the incident successfully.   The most profound impact of a breach is that you lost control of data you were entrusted to keep safe. Depending on the nature of that data, a breach could lead to a number of negative consequences, including loss of customer trust, inability to do business, and civil or legal suits.   Data security is a big job. But you don’t have to go it alone. Your financial institution can provide fraud prevention and cash management services that will work hard to protect your most prized possession—your data. When it comes to something this important, you should put your trust in good guys like us. About The Author . . .Wm. J. Ruckert III is Senior Vice President of Middle Market Lending at Provident Bank. Based in Provident’s Iselin office, Ruckert oversees commercial financing for companies with sales of $15 million or more. He holds a bachelor’s degree in business administration from Loyola College in Maryland.

Continued from Page 77 plan because it couldn’t meet the 75% participation rule, your group is now allowed to enroll in a group plan for a January 1 start date, without the need to satisfy that requirement. This is beneficial to a group because it allows you to access the group plan options for those employees that are interested in enrolling. Applications for this coverage need to be sent in to the carrier between November 15 and December 15, 2015. This applies to groups of up to 100 employees.   To view the forms mentioned in this article, please visit www. irs.gov. For more information about these changes and to receive updates as they occur, please feel free to contact us to be placed on our mailing list: ndamato@rdabenefits.com or 855-693-0772. RDA Benefit Services, LLC is an employee benefits firm that offers group health, dental, vision and voluntary benefits, as well as executive and individual life, disability and long term care insurance.

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THE DIRT ON THE MECHANIC’S LIEN AND PAYMENT BOND LAW By: Peter Liloia III, Esq. What Every Subcontractor & Supplier Needs To Know   The New Jersey Municipal Mechanic’s Lien Law and Public Works Bond Law contain pre-filing notice requirements. These apply to those supplying labor, material or equipment to any subcontractor on a public works job. Failure to follow proper procedure and timely file the required notice could cause forfeiture of your collection rights. Consequently, subcontractors and suppliers need to be aware of these provisions in order to protect themselves. These requirements are briefly described below.   A. Special “Pre-Lien” Notice Requirements For Those Furnishing Labor Or Materials To Subcontractors   If you are supplying labor and/or material to a subcontractor on a New Jersey public works job, in order to preserve your right to file a lien claim, you must give written notice to the owner (i.e., the public agency) within 20 days of the first work you do or materials you deliver to that subcontractor. The form and contents of the notice are specified in the statute, and must be filed with the municipal clerk, the chief financial officer of the county, or the chairman of the commission, board or authority, as appropriate. What happens if the “pre-lien” notice is given after the 20-day period? You can still file a lien claim but only for work and/or materials supplied after the date you file the “pre-lien” notice. The only exception is if there is money owing from the general contractor to the subcontractor, in which case the lien is limited in value to that amount.   The point is you should always file the required notice with the owner within 20 days of the first work or material in order to fully protect your rights. However, even if you neglect to do so, file the notice ASAP to at least partially preserve your rights.   Caution: the filing of the “pre-lien” notice with the owner is not the same as filing your lien claim, it is an additional step that must be taken. You must still file a lien claim in accordance with the statute’s requirements and time limits to preserve your lien rights.   Also note there are no lien rights on projects awarded by the State of New Jersey or its agencies since they do not fall under the Municipal Mechanic’s Lien Law. However, you can file a payment bond claim on State jobs (described below).   B.  Special “Pre-Bond Claim” Notice Requirements For Those Furnishing Labor And/Or Materials To Subcontractors: If you are supplying labor or material to a subcontractor on a New Jersey public works job (including State projects), you must give written notice of that fact to the general contractor prior to commencing any work. This will preserve your right to obtain full payment under the payment bond. (Note: To be safe, “commencing any work” should be interpreted to include the supply of material only, even if you do no physical work.) You must have proof of delivery of the notice to the general contractor, e.g., certified mail return receipt, signed delivery acknowledgment, etc.

  If you give notice after the commencement of work, you can still file a payment bond claim but only for work and/or materials supplied after the date you file the notice with the general contractor.   Point: Always file the notice with the general contractor prior to supplying the first work or material, but even if you neglect to do so, file the notice ASAP to at least partially preserve you rights.   Caution: the filing of this “pre-lien” notice with the general contractor is not the same as filing your claim under the payment bond, it is an additional step which must be taken. You must still file a payment bond claim in accordance with the bond statute’s requirements and time limits to preserve your payment bond rights.   C.  General Comments:   1. Before supplying any labor and/or material on any job, you need to find out who the owner and the general contractor are, if it is a public or private job, as well as obtain the description and location of the project. In this way you will have the necessary information to file your claim notices.   2. Make sure you timely file the required “pre-lien” and “prebond claim” notices with the proper parties, and that you have the necessary proof of delivery. Follow up if necessary by timely and properly filing your lien and bond claims.   3. If you do not take these steps, you could end up forfeiting your bond and/or lien rights, which may be your only viable methods of collecting your monies.   4. The above provisions apply only to New Jersey public works projects. There are separate statutes with different requirements and time limits applicable to private projects, federal projects, and projects in other jurisdictions.   The foregoing is only a brief description of the pre-filing notice requirements of the New Jersey Municipal Mechanic’s Lien Law and Public Works Bond Law. It does not cover all of the statutory requirements, procedures and time limits which must be complied with in order to preserve and perfect your lien and bond rights. Since these requirements, procedures and time limits are strictly enforced, the advice of competent counsel should be obtained before proceeding in any particular instance in order to ensure compliance and protect your rights. Continued from Page 69 from OFCCP scrutiny. As can be seen by the regulations set forth above, all UTCA Contractors performing work under federal contracts will be required to take certain affirmative steps to ensure compliance with the Final Rule, such as amending their employee handbooks and policies disseminated to employees. As with most non-discrimination regulations, a proactive approach now will help avoid costly and time-consuming OFCCP proceedings in the future.

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Labor Relations

PROMOTING PAY TRANSPARENCY: WHAT EVERY EMPLOYER NEEDS TO KNOW By: Jill Tobia, Esq., Tobia & Sorger

  On September 10, 2015, the United States Department of Labor Office of Federal Contract Compliance Programs (“OFCCP”) issued a Final Rule prohibiting Federal contractors and subcontractors from discharging, or otherwise discriminating against their employees or job applicants for discussing, disclosing, or inquiring about compensation. This Final Rule will take effect on January 11, 2016. The purpose behind this Final Rule is to promote pay transparency and is intended to implement Executive Order 13665, which Order was signed by President Obama on April 8, 2014. Executive Order 13665 amends section 202 of Executive Order 11246, which Order already prohibits discrimination based on race, color, religion, sex, sexual orientation, gender identity, and national origin.   This Final Rule will allow the OFCCP to analyze pay discrimination under the principles used to enforce Title VII of the Civil Rights Act of 1964, the preeminent law against discrimination in employment. Accordingly, the OFCCP will be vested with the authority to conduct a “rigorous fact-based assessment of a broad array of pay practices” based on a Title VII analysis. UTCA Contractors, therefore, should familiarize themselves with the Final Rule as it will undoubtedly begin to play a prominent role in all federal contracts and subcontracts. Additionally, all UTCA Contractors need to review their existing pay practices to ensure that there are no inadvertent practices that could be considered discriminatory under the stricter regulations. The Final Rule: Promoting Pay Transparency:   According to the United States Department of Labor website, the Final Rule, which takes effect on January 11, 2016 (120 days after its publication in the Federal Register), “will amend the existing regulations that implement Executive Order 11246 by: •  Requiring that certain information be included in covered Fed-

eral contracts and subcontracts. The Final Rule requires that the equal opportunity clause included in covered federal contracts and subcontracts be amended to include that federal contractors and subcontractors must refrain from discharging, or otherwise discriminating against, employees or applicants who inquire about, discuss, or disclose their compensation or the compensation of other employees or applicants. An exception exists where the employee or applicant makes the disclosure based on information obtained in the course of performing his or her essential job functions; •  Requiring that Federal contractors incorporate a prescribed nondiscrimination provision into their existing employee manuals or handbooks and disseminate the nondiscrimination provision to employees and to job applicants; •  Defining key terms such as compensation, compensation information, and essential job functions as used in Executive Order 11246, as amended; and •  Providing employers with two defenses to an allegation of discrimination: a general defense, which could be based on the enforcement of a "workplace rule" that does not prohibit the discussion of compensation information; and an essential job functions defense.”   According to the United States Department of Labor, the above requirements will enable employees of Federal contractors and subcontractors to discuss their compensation without fear of adverse action; thereby “reducing pay discrimination and ensuring that qualified and productive employees receive fair compensation.” Advice for UTCA Contractors:   The fact that UTCA Contractors do not engage in intentional discriminatory pay practices does not mean that they are immune Continued on Page 63

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THE AFFORDABLE CARE ACT: Important Changes To Employer Reporting Of Health Coverage For 2015

By: Nancy Damato, Partner, RDA Benefit Services   The Affordable Care Act has brought many changes to the health insurance industry since it was signed into law in 2010. There are some significant changes coming in 2016, particularly the Employer Reporting mandate and the expansion of the Small Group market. Small employers, as well as large employers, need to pay attention to these regulations since they impact everyone. As of September 2015, NEW changes to Employer Reporting requirements have been announced. Details regarding these changes are outlined below. EMPLOYER REPORTING REQUIREMENTS   Final reporting regulations and forms have recently been released and employers are reporting on data for the 2015 calendar year, due in early 2016. As a reminder, forms 1094B & 1095B are used by small employers with fewer than 50 employees that offer a self-funded health plan. They are reporting to the IRS on those employees that are covered under their employer plan.   Forms 1094C & 1095C are used by large employers (with more than 50 employees), no matter what type of health plan they offer (fully insured or self-insured plans) and even if they offer no plan currently. A form is filed for every full-time employee in regards to the offer of coverage and is not just for those employees on the group’s health plan. (For example, if an employee has coverage through their spouse, a form needs to be completed for that employee since he is full-time and was offered health coverage.) NEW REPORTING GUIDELINES FOR EMPLOYERS WITH UNION EMPLOYEES   Large employers are responsible for reporting on offers of coverage for both the union and non-union employees. However, there has been some relief for 2015 for MULTI-EMPLOYER PLANS. A form still needs to be filed by the employer for the union employees, but the data that is required has been simplified.

Part I still needs to be completed with the employee’s information. But, under Part II of form 1095C, the code 1H is entered (1H means “No offer of coverage”) on line 14 for any month in which an employer enters code 2E on line 16. (Code 2E indicates that an employer is required to contribute to a multi-employer plan on behalf of the employee.) No other data is necessary on the union employee’s form. REPORTING ON NON-FULLTIME EMPLOYEES   Large employers must also report on “other” NON-FULLTIME employees, such as Directors, retirees, terminated employees and those on COBRA. COBRA participants may include former employees, as well as any active employees who have had a reduction in hours. For former employees, reporting is only required if they enroll in the health coverage under COBRA. But the coverage they had as an employee is still reportable. SMALL GROUP MARKET TO EXPAND TO INCLUDE GROUPS UP TO 100 EMPLOYEES in 2016   The definition of a small group under the Affordable Care Act will change to include employers with up to 100 employees, starting January 1, 2016. This will impact the health plan choices available to groups of 50 to 100 employees, as well as the way the plans are rated. Many of the carriers are allowing these groups to keep their existing plans, as well as allowing them the flexibility to change their anniversary date in order to stay under their current rating system. Every carrier is handling this a little differently, so it is important to be in touch with your health plan provider regarding your options for 2016. PARTICIPATION REQUIREMENTS WAIVED FOR JANUARY 2016 GROUP HEALTH PLAN START   If your group has been unable to participate in a group health Continued on Page 53

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Financial Overview

ASK THE EXPERT:

A SURVIVAL GUIDE TO DATA SECURITY By: William J. Ruckert, Provident Bank

  By now, we all know how pernicious fraud is—and just how damaging it can be. And as I’ve discussed in previous articles, the construction industry is particularly vulnerable.   Because mitigating fraud is absolutely critical to the health of your business, you should learn how to protect your data straight from an expert. So I brought in the big guns in the form of Nathan Horn-Mitchem, Provident Bank’s very own Information Security Officer, who’s worked in the industry for more than a decade.   His message is too crucial to ignore. WR: Why is data security so important? NHM: Your data is your company. It doesn’t matter what industry you’re in; you can’t function without your data. Thus, it becomes priceless to your organization. That data has a very real, tangible value to other parties, as well, and if something is valuable, you can be sure other people will try to steal it.   Every company should have data security controls in place because a data breach isn’t a singular event for a company. The initial breach is what we always talk about, but what isn’t discussed is the long-term effect of your customers’ lost faith in your entire organization.   The majority of data breaches go unreported. The legal definition of a data breach varies by jurisdiction and many breaches don’t satisfy the legal definition, so no one is told. What can companies do to combat cyber hacks?   The best technology anyone can use to prevent hacks is their brain. Computers do exactly what they’re programmed to do, so if we depend solely on technology to keep us safe, we’ve already lost.   News stories about cyber crimes usually describe a sequence of events leading up to the critical moment. People need to think through situations, raise the alarm on suspicious events, and make smart decisions about not clicking on suspect links or visiting websites with malware. I’ve yet to see a single hacking event that

didn’t involve some sort of human error.   A major part of gaining access to information involves social engineering & phishing. Social engineering is the practice of tricking someone into divulging information to a person who shouldn’t have it.   Phishing occurs when hackers pretend to be an organization that you have a relationship with and send you a legitimate-looking email collecting personal information. Your bank will never ask for your Social Security Number because they already have it. They don’t need your password because they manage the systems you’re logging into. Yet consumers fall for these scams all the time. How should a company approach a data security plan?   First, you should implement defense in depth— multiple controls, or fail-safes, that should prevent data breaches. That way if one control fails, the other controls are still in place.   Your house is a perfect example of defense in depth. How do you keep your house safe? You have outside lights, a deadbolt, window locks, an alarm system, neighborhood watch, a big dog, a baseball bat in the closet, your local police, and homeowners insurance. Some of those controls are designed to prevent burglars from attempting to break in, in the first place. Some are designed to detect burglars trying to break in. And the rest kick in if a burglar succeeds.   You should emphasize employee security training, too. The weakest link in security is usually not a mis-configured server, but a person who makes a mistake or doesn’t report an issue. Companies should put numerous controls in place to detect and prevent security breaches, including data classification, data loss protection tools, disablement of USB ports and removable storage drives, outbound email encryption, and personal email website blocks. What’s the single most important thing business owners should know about safeguarding their data?   Understand who has access to your data and your network. An Continued on Page 53

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1. Publication Title

Statement of Ownership, Management, and Circulation (All Periodicals Publications Except Requester Publications) 2. Publication Number

Utility and Transportation Contractor 4. Issue Frequency

3

1

9 4

_

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9 0

September 2015

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6

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$20

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Contact Person

Helene Nasdeo

1670 Route 34 North Farmingdale, NJ 07727

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732-292-4300

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1670 Route 34 North Farmingdale, NJ 07727

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1670 Route 34 North Farmingdale, NJ 07727

Robert A. Briant, Jr. Editor (Name and complete mailing address)

1670 Route 34 North Farmingdale, NJ 07727

Robert A. Briant, Jr. Managing Editor (Name and complete mailing address)

1670 Route 34 North Farmingdale, NJ 07727

Robert A. Briant, Jr.

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Utility and Transportation

1670 Route 34 North

Contractors Association

Farmingdale, NJ

07727

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POLLUTION SOLUTION: POLLUTION LIABILITY POLICIES OFFER AFFORDABLE PROTECTION...if you know the questions to ask By: Carl Bloomfield & Shane Riccio, The Graham Company   A heavy contractor is working on a local highway-widening project for a municipality. Part of the work described in the contract involves excavating soil to provide the proper elevation of the new lane being built. The contract requires you to purchase a project-specific contractor’s Pollution Liability, and so you purchase a policy to satisfy the contract (a piece of paper that promises to pay for a claim subject to terms, conditions and exclusions that limit coverage).   Two weeks into the job, during the excavation process, one of your workers falls ill and checks himself into a doctor’s office. The doctor detects abnormally high levels of lead in his system. They test the soil and find that it’s contaminated with high levels of lead, which was traced back to years of auto exhaust that contained lead until the 1980s.   The claim: The injured worker collects workers compensation coverage from his employer, but then he hires a savvy attorney and sues the state, claiming sole negligence creating an action over situation because your contract requires you to name both the municipality and the state as additional insureds. However, your contract is with the municipality and not the state, so would your Pollution Liability’s additional insured coverage respond appropriately?   Other potential issues contractors face every day include the disturbance of pre-existing contaminated material, lead paint and contaminated soils, surface or groundwater. Contractors can also be sued or fined for accepting supposedly “clean” fill from unknown origins, only to learn later that it was contaminated with petroleum or other hazardous substances. First off, what is Pollution Liability Coverage?   Back in the early ‘80s, a General Liability Policy covered pollution events of all kinds. Due to the education of the general public on environmental awareness, insurance carriers began to see an uptick in the frequency and severity of pollution claims. As a result, they began to exclude this coverage and developed a 88

pollution-specific coverage form that they started to charge premiums for. Pollution Liability policies originally covered your business for third-party liability claims alleging bodily injury and property damages for ongoing and completed operations. Today, the coverage is much more robust, offering coverage for clean-up, remediation, defense costs, emergency response, crisis management, transportation, mold, site pollution for contractor yards and Professional Liability coverage, among others. Why do I need it?   As a contractor, many of the contracts you sign require you to have Pollution Liability coverage. In fact, on some jobs you may be required to purchase specific limits dedicated to that jobsite. Contractors may not be allowed on a jobsite without showing proof that these coverages and minimum limits have been purchased.   Over the past few years, the Pollution Liability insurance marketplace has seen an influx of capital and new markets looking to write this kind of business. As a result, Pollution Liability rates have trended down, making it very cost effective for most business owners to purchase this coverage. As mentioned above, contractors often purchase this coverage due to a contract requirement, but given the reduction in rates over the years, many contractors are choosing to buy a practice policy to cover all of their operations.   Ultimately, the risk/reward to buying or not buying this coverage is significant in nature. Pollution Liability claims don’t occur every day, however, when they do happen they are costly and can cause all types of reputational damages to a contractor. What insurance carriers offer this coverage?   Most carriers that offer General Liability coverage for contractors will also sell Pollution Liability policies. Some of the more notable markets include ACE, Zurich, Ironshore, Travelers, Excel, AIG, Philadelphia Insurance Company and more. Utility and Transportation Contractor, OCTOBER 2015


What should I look for in a Pollution Liability coverage form?   As mentioned before, many contractors purchase this insurance simply to satisfy a contract requirement. However, some carriers’ forms limit coverage in some key areas, which may lead to an uncovered claim and a breach-of-contract situation.   For example, the additional insured language in the unendorsed Pollution Liability policy may not comply with the requirements of the contract as seen by these three key points:   •  Coverage for Clients Only – Your policy only includes Clients as Additional Insureds. This means that if you are contractually obligated to add the owner or developer of the project you are working on as an Additional Insured in addition to the General Contractor, your policy would fail to provide coverage to the owner or developer of the project.   •  Direct Contract Requirement – The Additional Insured Coverage provided by your policy only allows you to provide coverage to the organization or entity with whom you signed a direct contract. This means that if the contract that you signed requires you to provide Additional Insured Coverage to any other organization that is not explicitly a party to the contract, your policy will fail to provide this coverage.

  •  Vicarious Liability Only – The Additional Insured Coverage provided by your Contractors Pollution Liability Policy only provides Vicarious Liability. This means that you will not be able to satisfy any contractual requirement asking you to provide Sole Negligence Additional Insured Coverage or Partial Negligence Additional Insured Coverage.   Another key provision is the definition of “Pollution Condition.” Some carriers have broader definitions than others. When reviewing your definition of pollution condition, be sure that it’s as broad as possible and includes these often excluded hazards, including Legionnaires Disease, fungus and mold and naturally occurring asbestos. Conclusion   Protect your business and purchase the relatively inexpensive Pollution Liability policy. This will provide you with a $1 million limit or more to cover you for claims that can and have put companies out of business. About the Authors: Carl Bloomfield, AAI is a Vice President at The

Graham Company and can be reached at cbloomfield@grahamco. com; Shane Riccio is a Producer at The Graham Company and can be reached at sriccio@grahamco.com

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NEW TRAINING FACILITY FOR LOCAL 172  L

ocal 172 S.E.T. is proud to announce the reopening of their training center in Folsom New Jersey. The newly expanded and remodeled training center is a 34,000 square foot facility which includes a hands on training bay that is 15,400 square foot and a ceiling height of over 28 ft, it has a clear span allowing all types of training to take place indoors. The training center utilizes a new solar design in order to apply a more energy efficient approach to our operations. The site now has three state of the art classrooms allowing the training center to dedicate classrooms to different types of training. It’s well known that Local 172 S.E.T. provides many different types of training giving its signatory contractors’ a competitive advantage. Pipe classes, concrete class, concrete finishing classes, blue print, line & grade, construction math., haz wopper, crane rigging & signaling, traffic control and OHSA are among the most requested, but the training does not stop there, many others are offered.   While the space here does not allow for a detailed history of the training fund, here are some highlights over the years.   March 1972 – The S.E.T. Fund was created with a declaration of trust. At this time many training funds were being created around the country because of the OSHA Act.   Very early on in training, the S.E.T. fund decided to take routes to provide training to its members before it had a permanent facility by providing blue print, pipe, concrete and line and grade courses in rented facilities such as Catholic churches, fire houses, and schools.   In the mid 70’s SET started the Trainer One program which was a 35 ft. mobile chassis with an interior to accommodate the training. This allowed S.E.T. to accommodate needs in short order on the job. This program is still in use today, providing awareness

training at break time, lunch time or after work.   Another mile stone also occurred in the mid 70‘s when S.E.T. started a Scholarship Fund. S.E.T. began providing four scholarships per year, two in the North Jersey area and two in South Jersey. The scholarship started around 1977, and still exists today.   By the 1980’s S.E.T. was holding classes on a piece of property they purchased in South Jersey with plans to open a state of the art training center. The classes were primarily held on Saturday mornings, where laborers learned pipe, form setting, landscape, man hole and inlet building and other related training.   Then S.E.T. got involved with hazardous remediation work. Around that time New Jersey identified over 400 toxic waste sites and committed to clean them up. A few years later the US government put out a publication and listed several hundred if not thousands more, and this put New Jersey in the spotlight as they now had more contaminated sites than any other state in the nation. So, S.E.T. began to provide 80 hr. haz. wopper training. This course exceeded the OSHA requirement by providing an additional 40 hours of hands on training, ensuring that our signatory contractors have a safe, skilled, productive workforce.   Preliminary design work was done for what was to be the first laborers training center in South Jersey in the mid 1980’s . It was a period of significant growth for the S.E.T. training center, with Local 172 now under the leadership of Raymond M. Pocino, and his renewed commitment to training. We started doing Haz. Wopper training to capture the market, and the women in construction program was started. S.E.T. also started holding workshops for instructors where the instructors would discuss how they could update courses, and instructor skills that they thought would help Continued on Page 103

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50 YEARS OF UTCA PRESIDENTS Franklyn Grosso 1965-1967, 1981-1982 William Bowman 1994-1995 Gerald Malanka 1967-1969 Peter Getchell 1995-1996 Samuel Luciano 1969-1971 J. Fletcher Creamer, Jr. Anthony Cammarata 1971-1972 1996-1997 Roy Day 1972-1973 Gennaro Liguori 1997-1998 Frank Stamato, Jr. 1973-1975 Michael D’Annunzio 1998-1999 Edward Cruz 1975-1976 Philip Schifano 1999-2000 George Harms 1976-1977 George Helmer 2000-2001 Frank Renda 1977-1978 Gerard Burdi 2001-2002 Robert Johnston 1978-1979 Denise Cruz-Serpico 2002-2003 Michael Zichelli 1979-1980 James Reid 2003-2004 Roger Hansen 1980-1981 James Johnston, Jr. 2004-2005 Richard Collings 1982-1983 Jack Murphy 2005-2006 John Van Harte 1983-1984 Nelson Ferreira 2006-2007 Joseph D. D’Annunzio 1984-1985 Walter R. Earle, II 2008-2009 Cosimo Pedicini 1985-1986 Frank Criscola, Jr. 2009-2010 Robert Carney 1986-1987 David Smith 2010-2011 Juan Gutierrez 1987-1988 Darrell Harms 2011-2012 Roger Wuestefeld 1988-1989 Joseph Walsh 2012-2013 John Purciello 1989-1990 Harry Chowansky 2013-2014 Lino DeAlmeida, Jr. 1990-1991 Scott Lattimer 2014-2015 George Speakman 1991-1992 Tino Garcia 2015 - Current Anthony Caruso 1992-1993 Edward Nyland 1993-1994, 2007-2008 Utility and Transportation Contractor, OCTOBER 2015

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Accounting Corner

WHAT IS THE USEFUL LIFE OF YOUR PASSWORDS? By: Carolyn Giunco Kvalo, The Curchin Group LLC

  We are often asked by our audit clients about password protecting their electronic devices. Each day as we take in the news, whether it be via the television, radio, online news service or, dare I say it, the newspaper, there seems to be ever more concerning reports of data breaches, website hacking and computer viruses infiltrating our networks and undermining our feeling of security with respect to our own personal identity. It makes us wonder if we are doing enough to secure the access to our vital information.   A 2013 study by Pew Research Center’s Internet and American Life Project indicates 51% of adults banked online in 2012 and 32% used their cell phones to perform financial transactions. In its April 30, 2014 report “Heartbleed’s Impact”, Pew reported that “39% of internet users say they took steps to protect their online accounts by changing passwords or canceling accounts” in response to the security bug. Were you one of those 39%? Whether or not you took such actions, it seems like a good time for a refresher on online security.   Identity Theft 911 recommends the following for safe online and mobile banking as well as other online activity:   •  Use a “strong password” - Roger Grimes, a leading computer security expert, suggests in his blog, Security Adviser, that length is more important than complexity for determining strength of a password. The minimum length of a “strong password” is 12 characters, considered to provide protection for a minimum of 90 days, 15 characters for administrator passwords. Those 3 extra characters may extend the protective life of the password to 1 year. In addition, Eric Griffith, PC Mag.com feature editor, indicates that simply adding one capital letter to the end of your password can significantly increase the time it will take to crack your password, 102

and doing that and adding another special character, i.e. ^, could extend the useful life of the password to well beyond a century.   •  Set mobile devices to lock automatically after a few minutes. A password or PIN will be needed to reactivate the device.   •  Use mobile device security features – Leave built-in mobile security features in place. Never hack or jailbreak phones which opens them to security risks.   •  Update security software – Keep all software, including antivirus protection updated, and enable firewall protection on your mobile device.   •  Encrypt stored data – Use encryption software like Kapersky on your phone to protect sensitive messages from your financial institution, pictures of valid checks and other sensitive data.   •  Get smart about Wi-Fi – Avoid financial transactions over unsecured Wi-Fi networks. Use encrypted networks with a password. Keep Bluetooth off when not in use.   These are just a few reminders for improving and updating your mobile and online security.   Recently, Intel has made great strides toward eliminating traditional passwords and providing log in instantly using face recognition or finger prints.   "We want to eliminate all passwords from computing," said Kirk Skaugen, Senior VP and general manager of Intel's Client Computing Group at the Citi Global Technology Conference on September 8, 2015. "I can confidently say today, you can eliminate all your passwords today, if you buy a 6th Generation Core system."   The recently released Core chips power some of the latest Windows 10 devices and utilize facial recognition software. But in all fairness, you would also need Intel's 3D Camera to determine the Utility and Transportation Contractor, OCTOBER 2015


user's identity.   Skaugen said, "… one of my funniest demos in my 23 years at Intel is when I brought two identical twins out on stage and I mixed them up and only one could log in with the PC, and it actually worked."   Earlier this year, Intel also released True Key, an app that lets users log in using biometrics including the distance between the eyes or different points on the face.   While we wait for these improvements to become more mainstream remember, legitimate inquiries about your accounts are seldom made via e-mail due to the security risks involved. Never provide your account numbers, passwords or other vital information to any unsolicited request. Continued from Page 97 them develop quality programs and embrace new technology and stay current of new safety regulations.   In the late 80’s S.E.T. took a look at negative safety trends in the industry, and began to revise their curriculum. In the early years curriculum was from instructors’ experience on the job sites, but after a look at these trends SET updated it curriculum to become more technical and new courses were created.   Local 172 initiated a new member orientation training for all new members, along with mandatory shop steward training, and S.E.T. began providing these courses. The initial set of classes for shop stewards were, CPR, First Aid, Confined Space Entry, Traffic Control, and OSHA.   In 1992 it was revealed to the membership that the plans for the training center had the go ahead and in 1993 the 14,500 square ft. training center was opened. Raymond M. Pocino, stated at the opening ceremony “This represents a major leap forward for our union, one that will propel us into the twenty first century in safety, education, and skills training.”   In 1999 the Construction Craft Laborers Apprenticeship Program was created and the S.E.T. training center again significantly expanded its training. The training that goes on today, uses LIUNA curriculum, approved by American Council on Education (ACE), International Accredited Service, (IAS), and American National Standards Institute, (ANSI). Its instructors also participate in annual training in order to maintain necessary certifications. As the technology changed, and the training center experienced considerable growth in contact hours and the number of courses presented, the S.E.T. trustees unanimously gave the direction to design and expansion in order to update the facility to meet the needs of the future and remain a state of the art training facility. The training center was reopened in the Spring of 2015.   In June an open house for local 172 members was held. President & Business Manager, Anthony Capaccio, stated that all Local 172 members should be proud of their facility and take full advantage of the courses offered. “It’s not only our hard working Local 172 members it’s also the training and participation by our members that make Local 172 great.” Business Manager Capaccio, said that he was honored to be part of such a project and honored to be able to dedicate this facility to all Local 172 members that lost their lives on the job.

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