BUILDERS EXCHANGE OF ROCHESTER, NEW YORK • SINCE 1888
ROBEX FEBRUARY | MARCH 2018
Builders Exchange celebrates
130 years
Opioid Crisis
in Monroe County
C.P. Ward| 100 years of service
Subcontractor
Bucket Challenge Building a Future Homesteads for Hope
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FEBRUARY | MARCH 2018 Features 12 The Craftsmanship and Lifetime Achievement Awards
ROBEX celebrates 130th anniversary by bringing two exciting awards programs together
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Capital Improvement or Taxable Repair?
Two scenarios to help contractors better understand the difference
New York State
MWBE Program Changes in the Governor’s Budget
24 Addiction
A look at the heartbreaking human toll the opioid crisis has taken in every corner of Monroe County
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The Subcontract Bucket Challenge Too many subcontractors are too comfortable signing contracts without knowing all of the terms and conditions that bind them.
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48 An Expert Witness's Common Sense 6
A Message from the President
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A Letter from the Chairman
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Member Spotlight
C.P. Ward is a nationally recognized construction company with more than 100 years of service
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Homesteads for Hope
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Albany Update
Community Farms: building a future and growing abilities
State of the State – Budget, the Tax Cuts and Jobs Act
Project profile 32
RED Rochester LLC (Recycled Energy Development) Project: Eastman Business Park
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ROBEX Staff and Board of Directors
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Index of Advertisers
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ROBEX
FEBRUARY | MARCH 2018 Volume 2 No. 1
BX STAFF
BOARD OF DIRECTORS
President Aaron Hilger
Executive Committee: Chairman Kevin Cannan A.A.C. Contracting
Vice President, Marketing & Operations Kim Gaylord Planroom Manager & Membership Director Corrine Taylor Accounting Manager Taryn Deinhart Research & Communication Manager Mariel Fedde Planroom Reporter Nicole Gissendanner Planroom Coordinator Liz Durkee
Vice Chairman Dominic Mancini Postler & Jackle Secretary Robert Morgan Upstate Roofing & Painting Treasurer Victor E. Salerno O’Connell Electric Company Immediate Past Chair Curtis Peterson Monroe Piping & Sheet Metal, Inc. Board Members: Traci Adolph Samson Fuel Richard Ash C.P. Ward, Inc
Builders Exchange of Rochester 180 Linden Oaks Suite 100 Rochester, NY 14625 P (585) 586-5460 F (585) 586-1580 info@robex.com robex.com
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David Mehalick Harris Beach
Dick Camping O’Connell Electric Company
Daniel Mossien Mossien Associate Architects
Mike D’Hont Western New York Floor, Co.
Brian O’Shell Ajay Glass
Kevin Foy M&T Bank Melissa Geska U.S. Ceiling Corporation Rick Kozyra Ark Glass & Glazing Ed Kurowski The Pike Company Mike Mallon LeChase Construction Mark Mancuso JBX Chairman Flower City Habitat for Humanity
The Builders Exchange of Rochester was founded in 1888 by visionaries dedicated to Rochester, New York’s commercial development market. Today, the exchange has more than 600 members and affiliates, and serves the commercial, industrial and governmental construction industry in Western and Central New York. ROBEX © 2018 is distributed twice each year to all members on a complimentary basis.
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Dave Cooper Rose & Kiernan
Walter Parkes O’Connell Electric Company Timothy Pullis Brown & Brown of Rochester Norbert Rappl Retired 2 Star General Comac Building Supply Randy Sickler SWBR Architects Gary Squires Manning, Squires, Henning Co. Inc.
Publisher Fahy-Williams Publishing PO Box 1080, 171 Reed St. Geneva, NY 14456 P (800) 344-0559 F (315) 789-4263 To advertise contact Tim Braden at (800) 344-0559, tbraden@fwpi.com
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A message from the PRESIDENT “In February of 1888, the Builders and Building Supply Dealers Exchange of Rochester, N.Y. was formed. Members voted C.W. Voshall the Exchange’s first president; F. C. Seitz first vice president; H.W. Gorsline, second vice president; J. H. Grant, secretary; and J.J.L. Friederich, treasurer.”
USA
PAYROLL is offering all ROBEX members/ franchisees a
15% discount off standard payroll processing fees.
To learn more contact Martha Parker at 585-350-7122 mparker@usapayroll.com
WWW.USAPAYROLL.COM
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joined Builders Exchange in 2003. Some of the early treasures I found in my office were the minute book from 1888 and a series of notes on Builders Exchange’s history. For instance, in our first year, we had just over 50 members who paid dues of $50 per year; a little over $1,200 in today’s dollars. As we enter our 130th year, I find it extraordinary that the organization founded by Voshall, Seitz, Gorsline, Friederich, and J.B. Pike (who was at the January 1888 meeting preceding the formation) is stronger now than ever. I wonder if they thought the entity they created would have such staying power in the industry. Some of our members – The Pike Company, Morris Lumber, and Boulter Industrial, to name a few – have been with us for all or most of this journey. Others, like CP Ward, have been active since the 1910s or ’20s. We also have dozens of members who have been involved for more than 60 years. Associations are successful because our members are engaged, supportive and willing to lead. We have been blessed with firms over our history that have done just that. At the start of every year, I like to ask our board and members how they feel about the industry and their prospects for the new year. Most of the answers that I have gotten this year have been very positive. While there continue to be concerns about the public works market, the general feeling is that the private market continues to improve. Tax reform appears to be starting a capital spending boom, which has been noticeably weak during the economic recovery. The general sense of relief that the boot of regulation has been removed from our customers’ necks also adds to the feeling of optimism. Even things like the deal flow at Greater Rochester Enterprise, which is considerably stronger in 2018, points to a spin-up in the economy. For me, this is encouraging because it is the first year in five or six that I have gotten such positive answers. We also see it in our membership, with the net addition of about 20 firms since the start of our fiscal year in July of 2017. New York State always gives us challenges in ways our founders likely never envisioned. The start of the legislative session is when we find out what the governor and legislative leaders are going to send our way. This year, we are most concerned about the level of government intrusion into our members’ subcontracting and hiring practices. While Builders Exchange supports fair and equitable m/wbe requirements, the new disparity study that will be used to reauthorize the program could lead to impossible requirements that are not legally defendable. The study undertaken to support the m/wbe program is regrettably lacking and has too many deficiencies to list in this column. Reliance on it actually puts the entire program at risk. In addition, the Cuomo administration is expressing interest in workforce hiring requirements that could top 50 percent of a firm’s crew – mandating minorities and women replace existing workers if you do not have enough staff to meet what will, in practice, be quotas. Hiring requirements can be a strong tool to help build a diverse contractor base, which we have long supported, especially as a supplement to contracting requirements. Most successful contractors were continued on page 10
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Catenary Construction was proud to be chosen for the concrete work on the iconic Court Street Apartment Project. After pouring over 16,000 yards of concrete in 2017– and with our new concrete pump truck’s 120-foot boom – we’re ready for any challenge.
Catenary Construction is now renting its pump services for your needs as well. If you can dream it, we’ll make it concrete.
New Concrete and Masonry Construction. Expert Historic Restoration. catenaryconstruction.com 585-454-4140
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A letter from the CHAIRMAN
H • Roadway & Parking Lot Striping • Airports •MMA • Schools • 3M Tape • Thermoplastic • Paint For More Information Call
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50 Bennington Drive • Rochester, NY 14616
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585-647-9350 loewkebrill.com 8
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ere we are in winter 2018, and it came sooner than expected. At least that’s what everyone says. We always get more snow than expected and it’s a little colder than expected. Again, so they say! In Rochester this is to be expected. Or we can look at it another way: New York State has more ski slopes than any other state in the nation. You can take a thrilling bobsled ride at Lake Placid, ride an ice bike in Buffalo at Canalside’s rink, take the family skiing at nearby Bristol Mountain, cheer on the Rochester Amerks, burn off some steam indoors at The Strong National Museum of play, or treat your family to a concert at the Eastman Theater for the auditory experience of a lifetime. The Rochester Philharmonic Orchestra is now in its 94th year – quite impressive! In just a few short months we will be hearing the crack of a bat at the Rochester Redwings opening day, Friday, April 6 at 6:05 p.m., when the Rochester team plays against the Buffalo Bisons. Set up a tee time at your favorite links for a warm, early-afternoon golf match with friends, or take a bicycle ride along the canal to watch the steam rise off the water through the early morning sun. You can start now to look forward to a global event, the Senior PGA at Oak Hill Country Club, in 2019. Those are just a few of the countless reasons we reside in and enjoy the Genesee Valley Region, the Finger Lakes, Western New York, Upstate New York or wherever you want to call home. But now the work side of it. Businesses are growing in the Rochester region. Yes, Kodak is smaller (a lot smaller), and Xerox is redefining itself. But small and medium-sized businesses are expanding into once empty buildings, and we are now starting to see new construction. Local colleges, universities and healthcare systems are second to none and continue to expand. The local architects and engineers are hiring and can’t keep up with the workload in all aspects for their services. The construction industry is a challenging and rewarding business. The many obstacles we face can be difficult for some. They include new tax laws, payroll taxes, building codes, New York State fees and permits, the OSHA Silica Rule, workers’ compensation insurance, general liability insurance, Labor Law 240, OSHA 30 and OSHA 10-hour training, awareness training, difference in contracts forms (DBIA, AIA or AGC Consensus Docs), cash flow, how to hire, what to ask and not to ask an applicant, employee handbooks and the list goes on. Whenever I am questioned about these items, my answer is always, “Join the Rochester Builders Exchange.” If you are a member, please take advantage of what we have to offer and bring a potential member to one of our events. We have and sponsor many educational and social events throughout the year. We are celebrating our 130th year with more than 580 members, and we are stronger and better than ever before. We provide a wide range of services and programs for our members, including our electronic online planroom that provides our members and their employees quick and easy online access to the latest information on construction projects. We also offer healthcare, workers’ comp insurance, training and education, vehicle programs, affinity programs and excellent networking opportunities. Here are some of the upcoming events. • Notary Prep Class continued on page 10 www.robex.com
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PRESIDENT'S Message from page 6
Excavation
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www.nothnagledrilling.com • Line Drilling/Relief Holes for Rock Excavation - Speed up Hoe Ram Activities! • Vacuum Excavation Services for - Utility Locating - Pre Clear Excavation Areas • Post Holes and Fence Holes up to 18” dia. • Rock Anchors and Toe Pins • Geotechnical & Environmental Soil Sampling • Monitoring, Remediation, Dewatering Wells • Geothermal Well Fields • Blast Hole Drilling • Pressure Grouting
Call to Discuss all your Drilling Needs! Office: (585) 538-2328 Fax: (585) 538-2357
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founded by trades workers, and it stands to reason that a more diverse base of workers will, over time, lead to a more diverse contractor base. The opposite program – creating contractors before skilled workers – has only had limited success in building sustainable companies. The issue with the proposal is the magnitude of requirement, and the compliance burdens that it will create for our members who do public work. Both increased hiring requirements and the expansion of forced subcontracting are policies based on politics, not data or an effort to remedy past discrimination. They are policies based on the governor’s need to run for reelection in 2018 and for president in 2020. Our members will face considerable business risk and our customers, especially the state, will experience much higher prices if they are enacted. The net result could be a smaller construction market, which puts a damper on the optimism I expressed earlier. Denise Murphy McGraw’s column provides more insight into the 2018 legislative session, which looks to be a challenging year. We encourage your input and please do not hesitate to contact us if there is an issue that you are passionate about. Thank you for being a member of Builders Exchange and for helping us grow in 2017. We look forward to an outstanding 130th year filled with great educational programs throughout, the Craftsmanship & Life Time Awards in March, and many opportunities for fellowship with JBX and Builders Exchange members! Aaron Hilger President Builders Exchange
CHAIRMAN'S Letter from page 8
• CFMA March Madness • Craftsmanship/Lifetime Achievement Award Dinner • Sales tax seminar • Blueprint reading • OSHA 10 • ROBEX Golf Tournament And that’s just through May. We also manage and coordinate meetings for Construction Financial Management Association and Design Build Institute of America, to name a few. The JBX has social events almost every month. Go on line, sign up and join in on the fun! Our spring golf tournament has been a favorite for years and the fall clambake is second to none. Join us at one of our breakfast meetings to learn more or attend any other event we have coming up. Visit robex.com for specific dates, locations and times. I hope to see you at our next event and have a great year in construction. Kevin Cannan A.A.C. Contracting www.robex.com
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Meet
Mar k
27 years in the industry 5000+ hours of training Graduated from Bishop Kearney Has two children, one in the construction industry Enjoys family vacations in the Outer Banks, NC Likes to work on cars and ride his motorcycle Has worked on over 50 local construction projects
Mark is a proud member of Local 276 and happy to work for a union contractor that is a member of the Construction Industry Association of Rochester. When you hire a union contractor, you’re working with the industry’s most knowledgeable and highly skilled workforce that will deliver the highest level of quality workmanship, while ensuring your project will be completed on time and on budget. It all adds up to a contractor partner that is committed to providing the best return on your project investment. See what hiring a union contractor can do for your next project. Visit ciar.biz.
Mark Farabell, BVR Construction Member Local 276
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Recognizing
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Craftmanship and Integrity
uilders Exchange is proud to bring two exciting awards programs together as we celebrate our 130th Anniversary in 2018. The founders of Builders Exchange believed that skill, integrity and responsibility should be the guiding
forces for our members. Nothing shows our skill more than recognizing superb craftsmanship. As members of Builders Exchange, we expect to see high quality work that was executed professionally. To win a craftsman-
2018 Craftmanship & Lifetime Achievement Awards Saturday, March 24, 2018 Locust Hill Country Club 6:00 PM Tickets $150 each or $1,450 per table Advertising available for award program Contact Kim Gaylord at Kim@robex.com for more information
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ship award, projects must be of the highest level and demonstrate challenges that were overcome during construction. We could not be more excited about the projects that have won in the past and will win this year! Craftsmanship award winners also demonstrate integrity and responsibility. They have taken the time to learn their trade(s) at the highest level and how to effectively manage projects. Integrity and responsibility are traits the winners of the Lifetime Achievement awards embody. Our history of strong family companies and recently more diversified ownership models, demonstrates a deep commitment to industry excellence. Winners of the awards have built and managed well respected companies in our region. They are greatly skilled in construction and management. They www.robex.com
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have served the industry, on local and national boards of directors, association committees, and in some instances as trustees of benefit funds. They are active in the community and are involved in charities or other community efforts. It is also striking that most, if not all, of the Lifetime Achievement recipi-
Dave Hood dhood@stub-ease.com
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ents were also skilled field workers! Craftsmanship award winners are often in the early to middle stages of their construction career. Many will take management positions or roles as general foreman or superintendents and some may start companies of their own. Lifetime Achievement Award winners
Conduit Stub-Up Eliminator
are at the other end of the career cycle. Some will work forever and others have retired. In all cases the winners leave a strong mark on the industry. We hope that you will join us for this prestigious event on Saturday, March 24th at Locust Hill Country Club.
www.stub-ease.com 630-675-1785 Conduit Stub-Up Eliminator February | March 2018 — ROBEX
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Member Spotlight
More Than 100 Years of Service by Joe Scanlon, Senior Project Manager, C. P. Ward
A
t the beginning of the 20th century, Mr. Conrad P. Ward began his career as a mason working beside his father for the Rochester Railway and Light Company in Rochester. In 1913, he decided to go out on his own and started contracting masonry work from his former employer. The C. P Ward Company grew quickly, and was incorporated in 1924, when Mr. Ward sold his assets to the corporation “including horses and wagons.” Today, C. P. Ward performs civil construction projects for a wide spectrum of both public agencies and private companies from the federal government down to villages and hamlets across New York State and Pennsylvania. C. P. Ward joined the Rochester Builder’s Exchange more than 40 years ago and its chairman, Dick Ash, has served on the ROBEX board for decades.
What we do
Construction work for public utilities was once the mainstay of the company. Now, we perform 24/7 emergency work for many New York state, county and municipal agencies, along with competitive-bid bridge and culvert reconstruction. We do not shy away from any type of work and, in fact, we look for unique and demanding chores. Our employees are multitalented and enjoy the challenges of our varied workload. An employee of C. P. Ward might be pressurewashing a bridge deck one day, but find himself 40 feet underground repairing a sewer tunnel the next! 14
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C. P. Ward is a major provider of crane rental services in western, southern and Central New York, as well as northern Pennsylvania. In its fleet are cranes than range from 28 ton through 350-ton capacity. We take pains to custom-paint our equipment in the trademarked “C. P. Ward orange” color and hand-letter the company name and logo on each vehicle in our fleet. The bright-orange paint is on everything from 4-inch mini grinders to tractor trailers.
How we do it
It’s important to note that C.
P. Ward is “American Owned and Operated,” and that we are not a subsidiary of any larger organization, but totally autonomous. In more than 100 years, there have been only five presidents at the helm who have certainly helped keep the company solvent. Each president has spent decades learning the business, starting with getting muddy boots and enduring the frigid winter months down in the trenches in the ruthless Upstate New York winters. Dick Ash, president from 1976 to 201, likes to say, “There is no ‘I’ at C. P. Ward. This is a ‘we’ company and we www.robex.com
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Member Spotlight
treat our employees, our customers, and our suppliers with the same dignity and respect that we expect from them. We have many employees who have been here for decades.” Mr. Ash and the current president, Ken Stewart, demonstrate the company work ethic by typically being at their desks going through the paperwork before dawn each day. Mr. Stewart has been with the firm since 1989, and is a graduate of SUNY Alfred with a degree in Construction Engineering Technology. C. P. Ward has always been an “equipment intensive” company. We don’t hesitate to go out and purchase the equipment necessary for our projects, whether it is a 10-cubic-yard dragline or just another wheelbarrow. The approximately 300 excavators, backhoes, pavers, trucks, etc. are brought in and systematically gone through in a well-equipped shop during the winter season in a region that typically gets over 100 inches of snow. In the peak season, we will employ about 200 people. We bill greater than $30 million annually.
Nationally recognized
Over the years C. P. Ward’s efforts have produced boxes full of awards that recognize our efforts and our expertise. In 2014, the company was honored by the American Public Works Association with a national award for the reconstruction of the Centerway Arch Bridge in Corning. Our hallways and conference rooms are decorated with awards from the Builders Exchange of Rochester, the Associated General Contractors of America, the Association for Bridge Construction and Design, and the American Institute of Steel Construction, among others. In 2015, C. P. Ward memorialized its 100-plus years in the construction industry by publishing the book, C. P. Ward, Inc. – The First Hundred Years by St. Vincent Press of Rochester. The book is available for purchase by contacting C. P. Ward’s office. 16
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Union Carpenters & Contractors
ONE UNION, MANY FACES
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Raritan Plaza II 91 Fieldcrest Ave, 1st Floor, Edison, NJ 08837 www.cctnynj.org | info@cctnynj.org Phone: 732-225-1300 February | March 2018 — ROBEX
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Money
CAPITAL IMPROVEMENT
or Taxable Repair?
by Scott Sliker
W
hat defines a project as a taxable repair instead of a capital improvement for New York State sales tax varies from project to project. What appears as a capital improvement to some may really be only a taxable repair by definition. To help contractors better understand the difference between the two, Scott Sliker of The Sales Tax Professionals presents these two scenarios.
Example #1: Taxability of Roof or Parking Lot Work
For a set fee, a contractor will provide materials and labor to replace the entire 10,000-square-foot roof over the office area of a building. In addition, the contractor will replace 75,000 square feet of a 90,000-square-foot roof 18
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on a building next door. The contractor will also replace a 5,000-square-foot section of blacktop in the front of the building, which is about half of the size of the parking lot. The entire roof and parking lot job is on one invoice.
Example #2: Taxability of Kitchen Remodeling Services
For a set fee, a contractor will install new cabinets, countertops, a new faucet, and new molding. As part of the remodeling project, the contractor will also remove cabinets, paint new cabinet doors and drawer fronts, install new hardware on the cabinets, replace the old countertops with new, replace the faucet and sink, and install new VCT flooring. www.robex.com
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The taxability of receipts derived from all of the jobs depends on whether or not the service is a capital improvement. New York State tax law defines a capital improvement as an addition or alteration to real property, which • substantially adds to the value of the real property or appreciably prolongs the useful life of the real property; • and becomes a part of the real property or is permanently affixed to the real property so that removal would cause material damage to the property or article itself; • and is intended to become a permanent installation. Remember: this is not the only criterion needed to make a decision. Many court decisions have been made to make the answer clear.
The conclusion to Example #1
Based on the above, the contractor charges for the roof and parking lot work when separately stated, the replacement of the entire 10,000-square-foot roof over the office area is a non-taxable capital improvement since it is the entire roof being completed. The 75,000 square-foot roof work is a taxable repair job because it is not the entire roof. In the case of the parking lot work being performed on less than the entire parking lot, the entire charge would be taxable.
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171 Sully’s Trail
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Pittsford, NY 14534
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585.381.1000
The conclusion to Example #2
The contractor’s charges for kitchen renovations qualify as capital improvements and are not subject to sales tax. However, items such as VCT flooring or repainting the room would not qualify as a capital improvement and would be taxable to the homeowner. The rules related to painting, and to the replacement of VCT, indicate that these are not www.robex.com
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intended to be permanent. As you can see, the size of the job or the price of the job was not a factor in either of these examples. Remember: the tax paid on materials cannot be used on an audit to offset the lack of tax collected from your customer on sales! Prior to cofounding The Sales Tax
Professionals, Scott Sliker was a sales tax auditor for 20 years with the New York State Sales Tax Department where he coordinated and performed audits onlocation for contractors, manufacturers and Fortune 100 companies. For more information, email Scott at ssliker@ thesalestaxprofessionals.com or call 585-507-6993. February | March 2018 — ROBEX
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Auto & Homeowners Insurance Commercial Insurance Surety Bonds 491 Elmgrove Road, Suite 2 Rochester, NY 14606
(585) 647-9350 lbbonds.com
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New York State
MWBE Program Changes in the Governor’s Budget
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uilders Exchange supports New York State’s efforts to increase MWBE participation on construction projects. We have grave concerns, however, with the manner in which the program is currently being administered. Additionally, we are concerned about the proposed changes to the state’s MWBE program and the imposition of new workforce requirements. Currently, under Article 15-A of the Executive Law, MWBE goals adopted by state agencies should be based on the geographic location of the project and availability of certified MWBEs. In recent years, however, the State has set the same goals on all agency projects regardless of location or availability of certified MWBEs. It should go without saying; the availability of certified MWBEs varies widely in regions across our great state. The state has made no effort to account for these regional differences, despite a requirement in the statute that the goals of each contract be tailored to the available MWBE resources. Contractors have been forced to deal with impossible goals because of the failure to follow the program rules. Another statewide problem with the current MWBE program is that the list of certified MWBEs includes hundreds of entities that are either no longer in business or non-responsive to solicitations for
work. Although the lack of response by these entities is repetitively logged and provided to state agencies by contractors, the state does not appear to be doing anything to monitor these nonresponsive participants. The state must verify that MWBEs on the list are ready, willing and able to perform public work that encompasses a commercially useful function. The proposed budget amendments make a significant group of changes to this already difficult system. First, rather that referencing specific goals, or even a specific disparity study, the amendment instead references the “most recent” study obtained by the Director of Empire State Development. The study need not be adopted by the legislature or even be put into regulation. On its surface, the amendment sounds reasonable, but has the net effect of creating a process that is opaque and completely subject to the whim of the executive chamber. Notably, the amendments remove all transparency from the current MWBE program, including the timing of studies, the imposition of specific statewide goals and the documentation on specific projects, including public disclosure of utilization plans and waivers. Second, the amendments dramatically expand the New York www.robex.com
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State program into all municipal projects that have state funding. This inappropriately preempts local MWBE programs. It also dramatically increases the need for MWBE contractors to bid on projects. For instance, SED supports on average about $4 billion in school construction annually. This change potentially creates $1 to $2 billion in new demand for MWBE. The Mason Tillman study that the state is relying on did not do any analysis of municipal projects, in terms of critically evaluating disparity or capacity. The imposition of goals without a supporting study creates significant legal risks for the program. The expansion of the program also imposes additional costs, essentially unfunded mandates, on local government and schools. The current MWBE requirements
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create between a 10- and 15-percent cost load on projects. Applying a 30 percent requirement to school construction projects could add between $400 and $600 million in costs. Those figures do not include potential market impacts due to rent seeking by certified contractors who are now in more demand. Nor does it take into account the higher requirements the flawed Mason Tillman study supports – more than 53 percent! Third, the budget amendments create an entire new role for Empire State Development (ESD). ESD, which is not a party to local municipal or school district contracts, will now have an oversight role in those contracts. This new structure will certainly add delay to contract awards, impact construction schedules and create payment
delays. All of those items increase cost to the taxpayer and will require a substantial increase in staffing at ESD. Finally, the amendments create workforce hiring requirements that could be as high as 50 percent, assuming the Mason Tillman study is followed. We are generally supportive of workforce requirements and feel they are the best way to build a diverse workforce and MWBE contractors. The approach here, however, is incorrect and unworkable. Workforce goals, including specific percentage participation requirements by gender and ethnicity, are to be established by the director of ESD for every project. Contractors must either certify their and their subcontractors’ ability to comply with the goals, or to obtain a waiver pre-award,
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using the highly restrictive process in the amendment. Compliance is to be tracked narrowly, by hours, for specific ethnic and gender groups. It is highly unlikely that any given contractor can specifically identify the right racial and gender characteristics to meet requirements on individual projects – over nine or more categories. Obviously, we cannot legally ignore our state and federal obligations to advertise and make hiring decisions on a nondiscriminatory basis in order to recruit for workers of specific gender or ethnicity – such as advertising for male American Indian masons or female Hispanic pipefitters. Additionally, the Executive Branch’s recent comments seem to indicate that anyone who meets the proposed racial or gender requirements
can/should simply be able to be employed in the industry; completely ignoring the fact that these are skilled construction jobs. The amendment also makes ESD the sole arbiter of good faith efforts for hiring, without usable specifics on what would constitute a “good faith effort.” Is it expected that existing workers be laid off to hire other workers? Are advertisements for employment that stress nondiscrimination, which are already required by state and federal law, appropriate? We simply do not know and are concerned about other legal problems that may arise in attempting to comply. In any event, ESD will be able, in its discretion, to determine if a contractor is “non-compliant” and if so prevent the contractor from bidding on state-funded contracts
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indefinitely. This is a substantial departure from the due process requirements relating to debarment – which this effectively results in. This change has the clear potential to be abused due to the proposed lack of transparency. Contractors may never know why they were “noncompliant,” nor can they be certain that all firms were held to the same standards. Builders Exchange is taking an active role to engage with the state to create a strong MWBE program that is properly grounded in law, and is transparent and beneficial for the tax payers. The rush to announcing new MWBE and workforce participation programs in the absence of a credible supporting study does more harm than good to the industry and to the MWBE firms it intends to protect.
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Healthcare
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T
he scourge of heroin and opioid addiction across America has been called an epidemic, a crisis, a catastrophe and more. The President has declared it a public health emergency. Here at home, heroin and opioids have taken a heartbreaking human toll in every corner of Monroe County. Our Medical Examiner’s office determined that more than 200 deaths in our 10-county region were directly attributable to the use of heroin, opioids, fentanyl, or other related substances, in 2016 alone. We can never lose sight of what those numbers represent: sons and daughters, brothers and sisters, mothers and fathers, and friends and family lost to addiction. Monroe County has already taken an aggressive approach to combating the heroin and opioid crisis by investing heavily in awareness, education, and prevention. In the past six months, the Monroe County Department of Public Health has hosted at least a dozen informational seminars in partnership with many of our local school districts. Since we launched this program in 2016, we’ve seen tremendous interest from parents, teachers, and students who attend to hear panelists from the Monroe County Sheriff’s Office, the Monroe County Public Health Department, and other agencies share their insights into the causes of this epidemic and what can be done to prevent and stop it.
In February 2018, we expanded these outreach efforts with new seminars in the Chili, Webster, Churchville Chili, and Hilton school districts.
Many of these informational seminars incorporate training on the use of Narcan, a safe and effective emergency nasal spray that can easily be administered to stop an opioid overdose. In many cases, Narcan can mean the difference between life www.robex.com
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by Cheryl Dinolfo, Monroe County Executive and death at a time when seconds count. This year, our Department of Public Health is expanding the availability and use of this ready-to-use spray medication by providing it to local restaurants at no cost, along with a short training class on how to safely use it. The first seminar was held on January 25th and we look forward to hosting more in the months to come. The heroin and opioid crisis has placed a significant financial burden on local governments and taxpayers as well. Last month, Monroe County officially filed a lawsuit against the makers and marketers of opioid prescription drugs who fanned the flames of addiction all across our nation. The county has retained the counsel of Simmons Hanly Conroy, a national law firm with extensive experience in large-scale opioid
litigation, who will help calculate our costs in the areas of treatment, healthcare, criminal justice, lost productivity, and more. We intend to hold pharmaceutical companies accountable for their actions in order to recoup these funds for taxpayers and reinvest in increased prevention, treatment, and enforcement moving forward. February | March 2018 — ROBEX
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Healthcare
More can and should be done to remove barriers for those who are seeking treatment for heroin and opioid addiction. In fact, it is often said that the most important time for anyone struggling with addiction is the moment they decide to ask for help. That’s why I recently asked Monroe County’s Public Health Commissioner, Dr. Michael Mendoza, to convene an Advisory Panel on Opioids, where some of our area’s foremost medical experts will share their opinions and suggestions on how we can better improve the system of treatment in our community. The Advisory Panel will be comprised of two committees. The first will examine emergency and urgent care, and will be co-chaired by Dr. Keith Grams, Chief of Emergency Services for the Rochester Regional Health System; and Dr. Michael Kamali, Chair and Professor of Emergency Medicine for the University of Rochester Medical Center. The second committee will examine primary and
transitional care and will be co-chaired by Dr. Fatma Akmese, Medical Director of Federally Qualified Health Centers for the Rochester Regional Health System; and Dr. Holly Russell, Co-Director of Addiction Medicine for Highland Family Medicine. I am grateful for the leadership of Dr. Mendoza and Drs. Grams, Kamali, Akmese, and Russel, in addition to many other experts in their field who will volunteer their time and talents to this important cause. Sadly, the heroin and opioid crisis has also triggered a surge in postmortem toxicology cases handled by the Monroe County Medical Examiner’s Office. My 2018 County Budget reflects funding to support the hiring of two additional toxicologists in the Office of the Medical Examiner, to complement its fully-staffed toxicology department. These new toxicologists will go a long way to help offset growing caseloads and accelerate the completion of postmortem toxicology reports. Families have a right to know what happened to their loved ones. I thank our continued on page 30
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Healthcare continued from page 26
Medical Examiner Dr. Nadia Granger and her team for helping to provide that closure, and for the incredible, challenging work they do every day. The annual report compiled by our Medical Examiner’s Office on local overdose fatalities is a valuable tool that we can use to help guide our community’s response to the heroin and opioid epidemic here. Yet it is clear that we also need an improved regional tracking system, one that captures information regarding all overdoses – not just fatalities – closer to real-time. Statistics show that a person who is treated for a heroin or opioid overdose is five times more likely to die from an overdose later. By tracking overdoses that require medical attention, particularly Narcan deployments, we would have a much better sense for the true scope of the crisis in our community. To address this challenge, Monroe County has been working collaboratively with our partners in law enforcement and EMS to streamline and centralize overdose data; some of which they may be collecting during the course of their duties already. However, a number of legal barriers stand in the way of this otherwise worthy goal, including some HIPAA privacy standards. In the weeks to come, Monroe County will be working to identify any outdated or unnecessary regulations that prevent us from taking this common-sense approach here in our community.
We will then take our recommendations to federal or state policymakers and advocate for changes to these laws as soon as possible. Finally, Monroe County is proud to be partnering with the Rochester Drug Court in its application for a $1.8 million state grant that would help to support a new Opioid Response Partnership in our area. The program would expand case management services, create a streamlined system for treatment and detox referrals, and enhance access to and quality of treatment for low-risk, non-violent defendants who are diverted to Drug Court. The Rochester Drug Court has a proven record of lowering recidivism, reducing crime, and improving outcomes in the population it serves. This grant would be a welcome complement to the Court’s already impactful programming and I hope to see it come to fruition in the near future. The sad truth is that everyone knows someone who has been impacted by heroin or opioid addiction. When the stakes are life and death, inaction is not an option. That’s why Monroe County will continue to lead the response to the heroin and opioid epidemic here in 2018. If you have questions about any of the proposals I outlined here, or if you have thoughts or ideas you would like to share, please feel free to email me at countyexecutive@ monroecounty.gov. Thank you for your continued partnership and support.
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Project Profile
RED RED
Rochester LLC, (Recycled Energy
Development) recently completed a more than year-long project to convert Eastman Business Park in Rochester, NY from coal to natural gas. As the new boilers are brought online this spring, Eastman Business Park will operate coal free and effectively eliminate emissions of sulfur dioxide and heavy metals, and reduce CO2 emissions by 50%, among other environmentally beneficial results. This will allow for current and incoming businesses to the Park to operate more cost-effectively and in a more environmentally friendly manner. Eastman Business Park is a 1,200-acre R&D and manufacturing campus with over 16 million square feet of multi-scale manufacturing, distribution, lab and office space. There are currently almost 100 companies onsite employing over 6,000 people, many of them responsible for the development of our nation’s next generation technologies in the areas of Energy Storage, Chemical Manufacturing, Roll-to-Roll Manufacturing and Photonics. Additionally, the Park’s immense manufacturing infrastructure—including the private utilities and onsite water and wastewater management system—is a competitive advantage for its high-use tenants. Red Rochester was recently formed as a utility franchise that includes a tri-generation power plant providing electricity, steam, and refrigeration for use by its customers within the business park. It was created after RED Investment LLC, owner of four cogeneration power facilities located in New York, New Jersey, Massachusetts, and California, was acquired by Ironclad Energy, a joint venture between Stonepeak and Ironclad Energy Ventures. The venture was formed in early 2016 for the purpose of acquiring, developing, owning, operating, and making capital investments in mid-market energy facilities, with its first project being RED Rochester. “The investment in the new natural gas fired power plant is one that will benefit companies operating in the Park, the environment and RED Rochester,” said Dolores Kruchten, President, Corporate Real Estate & Eastman Business Park Division, Vice President, Eastman Kodak Company, on the company’s website. “Along with being much more efficient, burning clean natural gas will reduce our CO2 emissions by 50 percent and eliminate sulfur dioxide emissions.” 32
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ROCHESTER LLC
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Project profile
The project involved installing four new highefficiency natural gas boilers and converting one coal boiler to natural gas. The new conversion will provide steam to existing turbines that provide power and other utility services to RED Rochester’s customers in the business park. When the boilers are fully operational in 2018: • Eastman Business Park will be completely coal-free for the first time in over 100 years. • Emissions of sulfur dioxide and heavy metals will be effectively eliminated • CO2 emissions will fall by 50%. • NOx and particulate will be reduced by more than half. • Overall fuel efficiency will improve. • The RED-Rochester steam plant will be fully modernized, setting the stage for another 100 years of success at Eastman Business Park. • Efficiently using lower cost fuels will ensure competitively priced, reliable utility services. Of the four new boilers installed, three of them weigh more than 270,000 pounds apiece. A smaller, mediumpressure boiler was brought in from Texas, while the three large boilers were built and shipped from Oklahoma by road. They were carried on huge rigs that were required to follow strict travel regulations. At certain points during the trip, the drivers could only travel at night. O’Connell Electric worked under sub-contract to ESI, a design engineering and construction firm that specializes in steam and power generation facilities, out of Georgia. O’Connell’s background and project experience in the industrial manufacturing sector positioned the company very well to be the electrical contractor of choice for the boiler conversion project. The scope of work included installing 2,300v and 600v electric services as well as fiber optic feeders between three buildings. All electrical services were terminated at a central location where the remaining panels, 2,300v drives and motor control centers were installed to operate the four new and one converted boiler. O’Connell also installed a camera system for monitoring the new boilers, fire alarm systems, I/O electrical controls, and subcontracted to a mechanical contractor to install new controls for the existing coal boiler that was converted. Close coordination with the mechanical contractors along with ESI was critical, as the drawings for the project were mainly schematics and line diagrams. Nearly ninety percent of the conduit routing was designed by O’Connell’s field project team. The space in which all of the trades had to install the four new boilers February February || March March 2018 — ROBEX
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Project profile
was very tight. All of the electrical and mechanical piping had to be very carefully planned to ensure it would fit within the limited space. The numerous medium
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voltage and 480v feeders that feed power to the new building were routed several hundred feet on available bridging, as the design specifications would not permit any underground installations. Inside the new building, all of the motors, control circuits, lighting and general power circuits had to intertwine with thousands of feet of mechanical piping and ductwork. More than 42,000 feet of conduit was installed. The collaborative effort by all trades resulted in a very successful outcome on the project. Walking through the new building and realizing just how limited space is available and noticing the intricate layout of the electrical and mechanical piping and controls is very impressive. O’Connell’s Construction Services Division operates a prefabrication shop at their Power Group location in Henrietta. The design and fabrication team was brought in to capitalize on any efficiencies, and took advantage of an opportunity to custom design and build light stanchions for the catwalks running throughout the new building. They started with a basic drawing to get an idea of what was needed for the catwalks, made some modifications, and after the specifications were finalized,
produced 46 stanchions in the fabrication shop. The team’s efforts saved more than 60 man hours that would have been spent at the job site building the stanchions. Working in a controlled environment allows O’Connell’s fabrication team to safely and efficiently, and very accurately produce specialized components for jobs. In late, 2017, the company purchased a 22,000 square-foot building next door to their Power Group location in Henrietta, to expand their fabrication operations. After renovations, the new building will offer up to four times the space, allowing the Construction Services Group to expand O’Connell’s offerings for customers and general contractors. At certain times during construction, the field team reached up to twelve electricians to bring the electrical scope of work in on time. O’Connell’s success on the boiler conversion project continues to strengthen the company’s position as experts in the manufacturing sector. O’Connell was asked to remain on site after the project is closed out to continue helping with small projects to assist with getting the new boilers online and operating efficiently. www.robex.com
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Laborers’ International Union of North America
Local 435 Daniel Kuntz / Business Manager & Secretary-Treasurer William Steve Jr. / President Robert Picardo / Vice President Carmen Serrett / Recording Secretary Michael Gay / E-Board Member Ace Roundtree / E-Board Member Clint Dunn / E-Board Member
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Legal
THE
SUBCONTRACT CHALLENGE
by Kevin Peartree, Ernstrom & Dreste, LLP
Y
ou are a subcontractor anxious for work – and cash flow. A general contractor approaches you to perform work on a new highprofile project. The work promises to be challenging and well-paying. You discuss scope and commit to a price. Then comes the contract. The general contractor gives you a short-form subcontract – and a bucket. The short-form subcontract covers scope, price and schedule. It also states: “The Bucket and each of its specific contents are incorporated by reference into this Subcontract as if fully set forth herein.” The general contractor says, “If you want the work, sign the subcontract. But you cannot look inside The Bucket.” 38
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Do you sign and not look inside The Bucket?
When I presented this scenario to a group of specialty contractors, many of whom regularly perform as subcontractors, their initial hesitation to answer gave way to the admission that they all have signed contracts without looking inside The Bucket – the bucket being the prime contract. Too many subcontractors are too comfortable signing contracts without knowing all of the terms and conditions that bind them. And, too, many prime contractors are willing to accept subcontractors who proceed in blissful – or trepidatious – ignorance. Through an incorporation by reference provision, most subcontracts
bind the subcontractor to the terms and conditions of the prime contract and incorporate and all the documents that make up the prime contract. Some subcontractors may take unjustified comfort in knowing that a very basic incorporation by reference provision may only incorporate those provisions of the prime contract that relate to scope, quality or the manner of performance of the work. A too-basic incorporation by reference provision will not bind a subcontractor to elements of the prime contract that are not specifically called out, such as no-damages-fordelay, liquidated damages, damages waivers, dispute resolution, and indemnity. But it does not take much www.robex.com
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to make a flow-down provision specific enough to incorporate and bind a subcontractor to these and other critical provisions. Referencing the “general, supplemental and special conditions” can be enough to bind the subcontractor. Further, a subcontractor should know what scope, quality and manner of performance provisions are passed through to it; and the general contractor should want its subcontractor to know. What does the subcontractor risk when it signs the contract but fails to look inside The Bucket? Here are just a few examples. The more stringent, costly, burdensome
… If any of the provisions of this Subcontract Agreement change, modify, eliminate, or are inconsistent with any of the provisions of the Contract Documents, then the more stringent, costly or burdensome provision shall control. This language, often found in the incorporation by reference provision itself, can come into play after the fact, when the general contractor or architect questions and challenges what a subcontractor has provided or performed. It can also apply when the prime contract imposes shorter time periods for notice and cure, or requires more for claim substantiation. If the subcontractor does not know how the subcontract modifies or is inconsistent with the Contract Documents, how can it know – and price – its risk accordingly?
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Bad drawings and specifications
Often buried in a prime contract is language that shifts, perhaps subtly, design liability onto a contractor and its subcontractors. The Contractor shall not proceed with any Work not clearly and consistently defined in detail in the Contract Documents, but shall request additional drawings or instructions from the Architect. If the Contractor proceeds with such work without obtaining further Drawings, Specifications or instructions, the Contractor, at Contractor’s expense, shall correct Work incorrectly done. www.robex.com
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Legal
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The exactness of grades, elevations, dimensions, or locations given on Drawings issued by the Architect is not guaranteed by the Architect or the Owner. Provisions such as these put a contractor or subcontractor on notice of what they can and cannot rely upon in the designer’s work product. The fairness of such provisions aside, this notice gives the contractor and subcontractor the ability to modify approaches and take steps to mitigate their risk. Proceeding wholly unaware of such disclaimers is inexcusable. Some prime contracts are even more direct in shifting, or at least spreading, design liability onto the contractor. Contractor covenants that it has carefully and completely read and examined all the Contract Documents, including all plans, drawings, and specifications, and that there are no defects, errors, inconsistencies, or omissions, whether subtle or obvious, in the Contract Documents and that said documents comply with all applicable codes, standards, requirements, laws, and regulations. A project owner typically bears the risk of defective or inadequate plans and specifications. Under what is commonly referred to as the Spearin Doctrine, an owner impliedly warrants the suitability of drawings and specifications prepared by its architect. If a contractor follows the plans and specifications and they prove defective or inadequate, the contractor is not liable to the owner for the resulting loss or damage. Provisions like the one above put the contractor, and through incorporation by reference the subcontractor, in the position of warranting the adequacy of the plans and specifications prepared by the architect. In so doing, the contractor – and its subcontractor – may lose the protection of the implied owner warranty, and expose itself to damages it would otherwise avoid. Schedule
The subcontract may establish the critical performance milestones, but an owner may assume significant control over how the contractor and 40
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its subcontractors get there. In order to meet the Owner’s schedule objectives, Contractors (of all tiers) will be expected to perform premium time or multiple shift work with no increase in Contract Price. Premium time and multiple shift work are likewise expected for final tie-ins and system adjustments. If time is money, then an owner’s ability to control how that time is used can mean lost money for the contractor and its subcontractor. Even more troubling, a provision such as this might be invoked even though the contractor or subcontractor is not responsible for the schedule slippage, leaving them paying the bill for delays caused by others and even the owner. No damage for delay
The subcontract is silent on the issue, but inside The Bucket the prime contract states, The Owner shall not be liable to the
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Contractor and/or any subcontractor for claims or damages of any nature caused by or arising out of delays. The sole remedy against the Owner for delays shall be the allowance of additional time for completion of the Work, the amount of which shall be subject to the claims procedure set forth herein. IT IS EMPHASIZED THAT NO MONETARY RECOVERY MAY BE OBTAINED BY THE CONTRACTOR FOR DELAY AGAINST THE OWNER, CONSTRUCTION MANAGER, OR ARCHITECT BASED ON ANY REASON AND THAT THE CONTRACTOR'S SOLE REMEDY, IF APPROPRIATE, IS ADDITIONAL TIME. Delayed by others on a project, a subcontractor begins documenting its extra costs caused by the delay. The subcontract may even provide that the subcontractor can recover whatever the contractor recovers on its behalf from the owner. Failing to look inside The Bucket, the subcontractor
doesn’t know that there is no recovery to be had, and exposes itself to an unknown and unpriced risk. Not being fully informed of its risk, the subcontractor’s also foregoes more proactive and aggressive measures it would undertake if it knew an extension of time was its only relief. Liquidated Damages
Many subcontracts address liquidated damages only briefly. If the Contract Documents provide for liquidated damages for delay beyond the completion date set forth in the Contract Documents and such damages are assessed, the Contractor may assess a share of the damages against the Subcontractor in proportion to the Subcontractor's share of the responsibility for the damages. The first question a subcontractor must get an answer to is do the Contract Documents provide for liquidated damages? If so, how much
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Legal has the contractor agreed to and when do the liquidated damages kick in? The prime contract may base liquidated damages on the major milestones: substantial and final completion. Some go ever deeper: Liquidated damages shall also begin to accrue when the work under the contract is not complete by the task dates, as indicated on the agreed upon and approved master construction schedule. Such liquidated damages will be withheld from progress payments. The liquidated damage question becomes even more critical when the prime contract allows them to be “stacked” on top of each other, resulting in even greater exposure. Not knowing the magnitude of potential liquidated damages and when and how they will be applied can prove devastating for a subcontractor operating on tight margins. Review of Changes
Often, the problem with not looking inside The Bucket is that a subcontractor proceeds unaware of timeframes and requirements that may be tough, but fair. The Contractor shall review each modification issued by the Owner and advise the Owner and/or its Architect in writing within three (3) days of notice of the modification as to the impact, if any, on the Work, including any adjustment in Contractor’s time for performance or the Contract Price. Contractor’s failure to do so will result in a waiver of claim for an adjustment in the Contract Price or an extension of time for the impact of the
modification issued by the Owner. This provision requires a contractor, and its subcontractor, to be conscientious and comprehensive in evaluating impacts to its work. An unaware subcontractor not only risks giving timely notice; it may also forego recoverable costs or time because it failed to fully assess how a change would impact its subcontract work. Claims
Many subcontracts include language that requires the subcontractor to give notice of any claims, particularly ones that implicate the owner within the time period that the general contractor itself must give notice to the owner. The Subcontractor shall initiate all claims for which the Owner is or may be liable in the manner and within the time limits provided in the Subcontract Documents for like claims by the Contractor upon the Owner and in sufficient time for the Contractor to initiate such claims against the Owner in accordance with the Subcontract Documents. But if the subcontractor does not have the prime contract, how does it know when and how it must act? If it had bothered to look inside The Bucket, it might have found something like this: The Contractor shall give the Owner written notice of all claims within three (3) days after occurrence of the event giving rise to such Claim or three (3) days after claimant first recognizes the condition giving rise to the
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Claim, whichever is later. Compliance with this written notice requirement shall be a condition precedent to Contractor pursuing such claims and the Contractor’s failure to comply with these requirements shall constitute a waiver of any claim hereunder. Not only must notice be given quickly, it is a condition precedent to recovery. Failing to give notice within the required time is fatal to the claim. In the middle of a project, while the parties are trying to sort through an issue, some subcontractors are reluctant to ask for a copy of the prime contract for fear of raising any red flags. Instead, they proceed on a wish and a prayer, and ignorant perhaps that their claim is already lost. Too many subcontractors take the risk of not looking inside The Bucket. Too many contractors think that risk is the subcontractor’s alone. Many even balk at providing all the documents it expects a subcontractor to bind itself, or only offer to make them “available” on request. While a general contractor may not want to share the specifics of its business deal with an owner, there is no good reason not to provide all of the documents that will be incorporated into the subcontract – particularly when electronic versions can be emailed easily and without cost. The most important rule in contract risk management is “RTFC – Read the Freakin’ Contract.” But before you can RTFC, you first have to GTFC – Get the Freakin’ Contract. And get all of it – the general, supplemental and special conditions, all the referenced policies and forms, and any document that will govern your performance. A subcontractor that is uninformed, not vigilant, and willing to assume unnecessary risks can prove a problem to itself and the prime contractor. Better to open up The Bucket. Kevin Peartree is a partner with Ernstrom & Dreste, LLP, which focuses its practice in construction law, contract risk management and surety law. He can be reached at kpeartree@ed-llp.com. www.robex.com
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Community Farm Building a Future and Growing Abilities!
H
omesteads for Hope (H4H), located at 2185 Manitou Road in Ogden, is a distinctive place to learn, work, live and grow here in Rochester. It serves young adults of all abilities including those with intellectual and developmental disabilities. It has become well known for its inclusive programs, its person-centered approach to student learning, and its guarantee of personal development. Our goal is to grow people’s unique abilities. H4H was founded in 2013 by Jennyrae Brongo, a young entrepreneur in the construction industry. She had taken her brother, who has autism, to a local farm where she watched him grow and blossom
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in nature’s classroom. After a Google search of “farms for autism,” Jennyrae found and toured 15 similar concepts across the country. She hit the ground running with a plan to bring this sustainable concept here. With access to the best location in Rochester, her plan to create a sustainable business model was full steam ahead. She knew her future with her brother with autism was restricted. There are simply not enough services for adults with disabilities after they age out of the school system at 21. H4H’s mission aspires to offer educational programming, workforce development, and a sustainable place in which to live a meaningful and productive life. The model includes agritourism and other agri-enterprises
so that the greater community can participate in the mission and vision. The nonprofit is heavily operated by parents and professional volunteers; many are parents of children with disabilities. Retired teachers, generous community members, and student interns handle the day-to-day operations. H4H intends to be a stepping stone for young adults of all abilities in Rochester and greater Monroe County. The vision is to develop all 55 acres of the Community Farm to create more educational spaces and microenterprises on the Erie Canal side. The plan is to employ the students we serve: in the farm market, and the future Farm to Table Café and Bed & Breakfast. We are currently planning
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Non Profit
In Kind Support Daniel E. Mossien, RA, NCARB President and CEO D. MOSSIEN@MOSSIEN.COM DIRECT 585-262-6046 x 212 | CELL 585-259-2770 OFFICE 585-262-6000 70 LINDEN OAKS | SUITE 110 ROCHESTER, NY 14625-2804 WWW.MOSSIEN.COM
Registered in NY, VA, FL and TX
CommerCial roofing and Painting ServiCeS
Concern. Honesty. Professionalism. These are qualities we insist on in our people – qualities that go far beyond technical expertise alone. These are the qualities that make Integrity in Action a reality... and a way of life.
Call (585)272-8050 email bob@upstateroofingandpainting.com 46
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To date, H4H has had In-Kind support in the past year from the following contractors: • Paradigm Environmental • Gallina Development • Gatti Plumbing • Montalabano Tree Service • Brongo Tree Service • Brongo Supply • H.A. Maier Farms • Reddy Construction • LeChase Construction • Dan Pope Architects • LandTech • Frederico Demolition • Bobcat of the Finger Lakes • Admar Supply • and many other volunteer tradesmen and women
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the construction of a 30-acre housing community on the property. The concept is modeled after national intentional style communities, but it is one-of-a-kind in western New York. We’ve come a long way since we established roots here 18 months ago. We offer four major programs and have growing collaborations with WEMOCO BOCES 2, Edison Tech, Monroe Cornell Cooperative, and even Wegmans. H4H has an incredible mission and dedicated vision for the future. Since our programs work around Mother Nature, we need support in construction to grow the farm’s infrastructure and to create more spaces for year-round learning, working and enjoying. New site utilities need to be installed, the estate home needs a complete renovation and expansion, and the barns need to be used for people. Those are just some of the work items needed to improve the property. We need to address everything, from a secure gated entry with more overhead lighting and fencing around the canal, to pavement to provide students with more accessibility. www.robex.com
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Specifically, H4H needs the following in order to grow and serve more people. • Utility construction: septic, water, gas and electric • Estate home renovation: masonry,
carpenters, plumbers, electricians, HVAC, doors/windows, interior finishes, etc. • Barn reconstruction: design/build, roofing, siding, floors and complete mechanicals February | March 2018 — ROBEX
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SAFETY Zone
s
ss’ e n t i W t r e p x An E
CommonSense by Dan Mossien, President of Mossien Architects
I
have been a practicing architect for more than 40 years and I have been a member of the Builders Exchange Board of Governors for more than 30 years. The Builders Exchange has such a diverse group of members – general contractors, owners, design professionals, sub-contractors, MEP contractors, suppliers, lawyers, accountants, bankers, insurers, etc. – that it is sometimes difficult to think of topics that will provide insight to the wide group. While I still love to design buildings, a growing portion of my practice involves professional witness services for 48
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attorneys and insurance companies. My work is equally split between plaintiffs and defendants. The types of cases involve construction defects, product liability and slips and falls. What is striking about much of this work is that the design and construction defects are likely obvious to most on a job site. However, as an industry, the silos we create on projects limit mitigation that could save everyone time and money in the future. My expert testimony often involves building code and code reviews. Those tend to be relatively straightforwww.robex.com
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ward. The exciting part to me is the cases where no codes are applicable involving an accident. Examples include slipping on snow-covered ice in a parking lot, tripping on parking bumpers, and hard-to-see tripping hazards. To illustrate what I’m talking about, let’s take a look at this photograph – which at first glance looks like something M.C. Escher might have created. Because we can see the handrails, we can identify it as stairwell and incidentally, it is in a commercial building. From an expert’s perspective, I have to wonder what the design team was thinking! The same could be said for the general contractor and the carpet installer, neither of whom appeared to question this. As you can see, it is very difficult to discern
where the treads start and stop – which poses a clear tripping hazard. Hopefully this is not the stairway to a restroom in a bar! The stairway meets all of the applicable codes and this is where codes fail. There is no code that says you cannot design and install something so blatantly dangerous especially, when it meets the technical requirements for stairs! I can’t think of any jurors not supporting a plaintiff’s award for injuries sustained. Common sense, not building codes, prevents problems like this. Whenever I take on a case like this for either side, I try to think of my opponent’s professional witness
and how I get to beat them up a little. With a case like the stairway, I can come up with some pretty good information and hope I get to a jury trial because I know I could win. A juror would look at this and wonder how they’d get home after the company Christmas party. I hope they have an elevator! A similar case I had involved a trip and fall in a dimly lit parking stall. No building codes apply except the New York State Property Maintenance Code. In this case, I used the Property Maintenance Code as well as the following standards or industry guidelines: Property Maintenance
Full range of commercial services: Landscape Construction Green Roof Construction Hardscape Construction Site Development Athletic Field Development
585.392.7120 Office rmlandscape.com Andy Walsh, Business Developer www.robex.com
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Safety Zone
Codes of New York State §§301.1, 301.2 and 302.3, and ASTM F1637-95, 8.1; F1637-07, 9.1; ASTM F1637-95, 8.3; F1637-07, 9.3; ASNI Z535.1; ASTM F1637-95, 8.2, 8.3; F1637-07, 9.2, 9.3; ASTM F1637-09.4; and ASTM C881. It was a very short trial and the jury awarded the plaintiff the $650,000 that her attorney asked for. While the string of numbers above looks overly technical, in reality this is a hazard that could have been easily mitigated by anyone on the jobsite. A different lighting design, or simply higher wattage bulbs, could have mitigated the hazard. Again, common sense on jobsites matters as much as the owner’s operation of a safe facility. So, what does this represent? Taking a broader view of your role on a jobsite might make a long-
SAFETY
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SECURITY
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term difference in litigation costs, as well as public health and safety. In each of these examples, the lawyers sued everyone they could: the owner, the GC, the CM, the subcontractor, the architect, the interior designer, and the manufacturer of the carpeting. While I enjoy providing expert testimony, I would rather not see cases like these because I know that we can all do better. We may need to start thinking like a user and an attorney when we do design and construction work. We may also want to encourage our field workers, project managers and estimators to exercise a little more common sense! I am sure that anyone reading this article will see that this is an accident in the waiting. Think safety at all times.
SERVICE
Helping to protect Central and Western New York’s most successful businesses, school districts and universities for more than 30 years.
53 Pixley Industrial Parkway, Rochester, NY 14624 | 585.663.8530 | www.westfiresystems.com Licensed by the NYS Dept. of State, #12000047882
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Join the team. View our careers page at www.robex.com
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Government Relations
ALBANY UPDATE
State of the
T
he 2018 New York State Legislative Session kicked off on January 3 with Governor Cuomo’s annual Message to the Legislature, more commonly known as the State of the State. The event was attended by members of the Senate, Assembly, agency staffs, local and statewide elected officials and prominent New Yorkers. The State of the State is a blueprint of the governor’s legislative and budgetary aspirations for the legislative session. This year, Governor Cuomo has laid out 23 proposals he will champion. According to his briefing materials the governor’s 2018 agenda includes • keeping new york economically competitive; • expanding educational opportunity for all; • continuing economic opportunity and growth under NY works; • providing a cleaner, greener and healthier New York; • leading the fight against climate change; and • building a stronger, safer New York. For more information about Governor Cuomo’s State of the State Address, visit governor.ny.gov. We will be tracking the governor’s agenda, as well as those of the legislative leaders and conferences, as the session moves forward to inform our own legislative priorities and concerns. On January 16, Governor Cuomo presented his 2018-19 Fiscal Year Proposed Executive Budget. Here are the highlights of the FY 2019 Executive Budget. • State Operating Funds spending is $100.0B – an increase of 1.9 percent (State Operating Funds exclude federal funds and capital). • All funds spending is $168.2 billion for FY 2019. • The budget closes the carried-interest loophole. • It increases school aid by $769 million – doubling the statutory school aid growth cap and bringing total investment to $26.4 billion. • The budget provides $7.5 billion in State support for higher education in New York, an increase of $1.4 billion or 24 percent since FY 2012. • Provides $118 million to continue the successful Excelsior Scholarship and extend the income cap to $110,000. • Establishes a new opioid epidemic surcharge. 52
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Denise Murphy McGraw Hill, Gosdeck & McGraw LLC
Budget, the Tax Cuts and Jobs Act • Imposes a Healthcare Insurance Windfall Profit fee. • Defers Large Corporate Tax Credits; and • Continues the phase-in of the Middle-Class Tax Cut for 6 million New Yorkers – saving households. An overview of the state budget can be found at budget. ny.gov/pubs/press/2018/ preBudgetfy19.html. The passage of the federal Tax Cuts and Jobs Act (TCJA) will have a significant impact on the economy and tax system of New York State. Therefore, the Department of Taxation and Finance has presented an initial to outline options for state tax reform in response to the act. The report presents a series of proactive options the state may consider regarding impacts the act would have on the state’s economy and working families. The report is divided into four sections. Part I outlines a proposal to increase charitable giving in New York. Part II discusses various options for reducing the state’s reliance on the Personal Income Tax and adopting an employer compensation expense tax, including the possibility of a voluntary employer opt-in system. Part III outlines options for consideration of an unincorporated business tax. Part IV discusses the impacts of the TCJA on New York’s tax system and potential responses. The report can be found here at https://www.tax.ny.gov/ pdf/stats/stat_pit/pit/preliminary-report-tcja-2017.pdf The Department of Tax and Finance is welcoming input on the proposals. Therefore, we ask that you forward all suggestions to us to coordinate on behalf of the Builders Exchange. It will be a busy legislative session. As always, we will keep you posted and welcome your input. Denise Murphy McGraw is a partner at the Albany-based legislative affairs firm Hill, Gosdeck & McGraw where she specializes in employer, economic development, not-for-profit, and healthcare issues. She has represented the Builders Exchange of Rochester for more than a decade. www.robex.com
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index of advertisers FEBRUARY | MARCH 2018
AAC Contracting............................................ 20 Admar Supply Co Inc..................................... 23 Advanced Thermal Technologies. . ................... 2 Altra Rental & Supply. . .............................. 28-29 B & L Wholesale Supply. . ............................... 22 The Bonadio Group........................................ 19
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Brown & Brown Insurance of New York Inc... 27 C & A Pavement Markings................................ 8 C.P. Ward........................................................ 53 Carpenter Contractor Trust NY/NJ................. 17 Catenary Construction..................................... 7 CIAR............................................................... 11 Emergent Safety Supply.. ............................... 13 Ernstrom & Dreste.. ........................................ 30 First Light. . ..................................................... 36 Fitch Construction......................................... 42 Five Star Equipment. . ..................................... 55 Frederico Demolition.. .................................... 31 IV4.................................................................. 40 Jaufmann & Centola. . ..................................... 54 Laborers’ Local #435...................................... 37 LB Bonds & Insurance................................... 20 LeChase Construction................................... 39
With a vested interest in your success, trust us to give you the best service possible! Tax Preparation • Full Service Accounting • Bookkeeping CFO/Controller Services • Business Valuations ROBEX members receive a complimentary, one-hour consultation.
Loewke Brill Consulting Group. . ...................... 8 Lovell Safety Management Co... ..................... 56 Matthews & Fields Lumber Company............ 40 Mossien Associates Architects. . .................... 46 Nothnagle Drilling.......................................... 10 O’Connell Electric Co.. . .................................. 51 R.M. Landscape. . ............................................ 49 Roadtek.......................................................... 10 Rochester Davis-Fetch Corp.......................... 41 RSMP.............................................................. 43 Samson Fuel.. ................................................... 9 Sessler Environmental..................................... 5 Upstate Roofing & Painting.. .......................... 46 USA Payroll...................................................... 6 Weckesser Brick Co....................................... 21
Call (585)292-1041 to get started. 1200 Jefferson Road, Suite 300, Rochester, NY 14623 54
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Welker Mojsej................................................. 54 West Fire Systems......................................... 50 World Wide Bonding Agency......................... 39 www.robex.com
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Sales - Rentals - Service - Parts Dunmore, PA
570-346-1701
Kirkwood, NY
607-775-2006
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570-882-8800
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716-662-2191
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814-796-2663
Rochester, NY
585-235-3011
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570-494-4030
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315-452-4560
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LOV Robex Spring 2018 Issue.qxp_Layout 1 12/13/17 6:11 PM Page 1
EXPERIENCED. EQUIPPED. READY. COST-EFFECTIVE, COSTT EFFECTIVE, TRISK-FREE COMPENSATION WORKERS’ COMPENSAT A ION AT COVERAGE FROM THE EXPERTS WITH OVER 80 YEARS OF EXPERIENCE.
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