July 2019 Quarterly Newsletter

JULY 2019

On the

LEVEL The Quarterly Associations Newsletter of:

Construction Contractors • Sheet Metal & Roofing Contractors • Fabricators Erectors & Reinforcing Contractors

HIGHLIGHTING LONG-TIME CCA MEMBER...

M&T Bank— Understanding What’s Important A proud Construction Contractors Association member since 1993, M&T Bank is a community-focused company founded in 1856 and headquartered right here in New York State. With dozens of locations throughout the

Donna Richie, New Paltz Branch and Adam Pitcher, Newburgh 9W Branch volunteer at Walden Spruce-Up Day sponsored by Orange County Rural Development Corp.

Hudson Valley, M&T Bank remains deeply rooted in the

Development

communities in which we serve. By helping businesses

Partnership. He also serves on various committees for

grow, providing loans for families to buy their dream

the SUNY New Paltz Business Advisory Council and

home, or giving back through active volunteerism and

Habitat for Humanity of Greater Newburgh.

philanthropic support, M&T Bank continues to focus on understanding what’s important to our customers and

Corporation

and

Orange

County

The bank’s employees participate in a number of

the communities in which we live and work.

volunteer activities throughout the year, such as the

M&T Bank’s community approach to business means

various Hudson Valley branches together to make a true

Annual Habitat Newburgh Volunteer Day, which brings

that decisions about business, loans, and community activities are made by those people in the bank who know their communities best. In the Hudson Valley, Mark Stellwag serves as Regional President and brings over 35 years of banking experience to the table, including an extensive 25 years at M&T Bank. Stellwag previously led a team within M&T Bank’s commercial real estate group right here in the Hudson Valley. In addition, he has extended his commitment to the community by serving on the board of directors for several active non-profit organizations including the Hudson Valley Economic

Carlos Alicea, Jr., of the Scotchtown Branch with teammates at Walden Spruce-Up Day

continued...

DIRECTOR’S MESSAGE

continued from cover...

M&T Bank—Understanding What’s Important

As we begin to enjoy summer (if the spring rains ever stop), I look back on my 10 years as your

difference and impact. During the 2018 Volunteer

executive director. What a

Day, several employees assisted in demolishing

wonderful journey! I have

unusable buildings as part of a Newburgh

never had a better job or

renovation project. That work has continued into

worked with so many

this year, as M&T employees helped Habitat for Humanity once again renovate several homes in May and June, helping the organization close-in on its 100th completed home in the Greater Newburgh area.

fantastic people. I come to work each day filled with enthusiasm and ready to tackle the challenges ahead.

Our associations continue to evolve and grow, and each

In addition, M&T Bank donated to more than 130 Hudson Valley organizations in 2018, including various Boys and Girls Clubs, the Purple Heart Hall of Honor, Anderson Educational Foundation, Hudson Valley Manufacturing Workforce Center, Meals on Wheels of Newburgh and Special Olympics of New York – and the bank’s employees routinely volunteer their time and energy at these

adds a unique perspective to our blended family.

•

Since its inception in 1957, CCA has grown from

a group of 5 members into a strong organization representing unionized contractors, subcontractors and associate members. We serve as a conduit to connect project developers with our highly skilled contractors and labor force.

• Fabricators, Erectors and Reinforcing Contractors

great organizations!

M&T Bank is excited about the growth happening in the Hudson Valley, due in large part to the work of the members of the CCA. We look forward to

was founded in 1973, and is an association of the Hudson Valley’s leading fabricators and erectors of steel and metal for heavy construction projects.

many future successes for the businesses and

• Our SMACNA Chapter (Sheet Metal & Air

families that call the region home as well as the role

Conditioning Contractors’ National Association) was

that M&T can play to assist them.

formed in 1937 (and contrary to some people’s opinion,

To learn more visit www.mtb.com, stop by a local bank branch location, or call our general services line at 1-800-724-2440.

I was not there for the signing of the documents.)

Association members, provide the region with highly competent, efficient and skilled workmanship in heating, ventilation, air conditioning and sheet metal.

There are many other organizations that focus on the economic well-being here in the Hudson Valley including the Hudson Valley Economic Development Corp., the Council of Industry, Pattern for Progress and regional Chambers of Commerce and local economic development agencies in each county. I am fortunate to represent our members and work with the outstanding leaders of these groups to uncover businesses and projects that solidify

Staff of the Newburgh 9W, Newburgh 17K and Millbrook Branches of M&T Bank working with Habitat for Humanity of Newburgh.

our region’s reputation as a solution for those seeking excellent locations, an abundant and skilled workforce and a quality of life that can’t be beat in the northeast.

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JULY 2019 QUARTERLY NEWSLETTER

But our success cannot be taken for granted. Stability and change must be balanced for businesses to survive.

The companies below prove this point. Their failure to identify the changing market and

economic conditions and adjust their business plans accordingly was most likely a factor to their ultimate demise. Every week we hear of more “big names” going out of business or declaring bankruptcy.

Remember Montgomery Ward? Or W.T. Grant? How about Rambler, Hudson, Oldsmobile and Pontiac?

The list is endless.

On the other hand, Amazon is a success story and rather than compete, Kohl’s has shown it can be nimble and change tactics rather than stick to the old retail strategy. Despite lower earnings than forecasted, Kohl’s has surpassed other retailers by bringing Amazon kiosks into their stores. This allows for more customer traffic and a chance for Kohl’s to sell to customers who might never have entered their doors.

We need to be that nimble. We try to maintain programs and services that are relevant but at the same time, we need to constantly re-evaluate and make the changes needed to adapt to the changing market.

As regional projects have flourished through recent years, our associations have also done well. We have added Millie Rodriguez to our office staff and her smile and enthusiasm are contagious to all who meet her. She is a great teammate to Patty Dalton, whose experience and knowledge ensures that all association members receive the services and attention they need.

Our boards recently met for the first time collectively in a long-range planning session. Their robust collaboration gave us a roadmap for the future, and I thank them for their time and ideas that will keep us moving forward toward even more success for our association.

One of the main initiatives from the session was a focus on improved communications for our members as well as prospective developers. I am happy to report we are well on the way to achieving that and whether you call it karma or just good luck, our newest team member is an expert in communications. I am truly ecstatic to introduce Barry Lewis to you. Many of you might recognize his name from the Times HeraldRecord newspaper where Barry was a longtime columnist and for the past five years, executive editor.

With over 30 years as a journalist, Barry has already hit the ground running as our team’s Vice President of Communications and Member Relations. I hope each of you will say hello to Barry and his wife, Bonnie, at our future events. Please take a look at Barry’s impressive bio included in our newsletter.

Speaking of the newsletter, I hope you are pleased with our new look. While Patty continues to put it all together, we have added Barry’s years of publishing experience and brought on FisherMears to help with the production.

Like many business sectors, we face challenges going forward. Rather than staying dormant while the world around us changes, we are poised to embrace those changes we need to make to remain competitive and viable. I thank our boards for their support in proactively planning for our future. With Barry joining Patty, Millie and me, we are stronger than ever and ready to turn future opportunities into reality for our members.

Happy Summer!

Alan Seidman Alan Seidman

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Meet CCA’s Vice-President of Communications and Member Services

on the board of directors for the Community Foundation of Orange and Sullivan County, the Record’s People for People Fund, Hospice of Orange and Sullivan Counties, the steering committee for Sullivan Renaissance, Mount Saint Mary College Career Advisory Committee

but was fortunate enough to spend

and is vice president of the board

his summers in the Catskills where

of directors for the Time and the

his father was among the last of

Valleys Museum in Grahamsville.

the tummlers. In 1977, his family

In his free time Barry competes in

moved to Sullivan County and

community races that help raise

the following spring he graduated

money and awareness for various

from

causes including cancer research,

Liberty

High

School.

A

graduate of Marist College, he is

educational

the author of “From Brooklyn to

civic organizations.

Bucolic,” a collection of his awardwinning weekly columns that he has penned for the Times Herald Record BARRY LEWIS is the former executive editor for the Times Herald-Record

newspaper

in

Middletown, New York. He came to the Record in 1999 after having served in editor roles at newspapers in Connecticut and Port Jervis. Barry was born and raised in Brooklyn

Barry with his wife, Bonnie

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since 2000.

scholarships

and

Barry is a long suffering New York Mets and New York Jets fan. He lives in the Sullivan County Town of Neversink with his wife Bonnie and

Barry speaks to numerous civic and

his dogs Boo Boo and Bitsy. He has

educational groups and is involved

three sons, Sean and twins Daniel

in several non-profit organizations.

and Dustin who have successfully

He was honored by the Hudson

launched into adult life. Barry is also

Valley Cancer Resource Center with

proud grandfather to Catherine, his

the 2018 Great Guys award. He is

first grandchild.

Barry with his grandchild, Catherine

JULY 2019 QUARTERLY NEWSLETTER

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Paige Banfield with guest speaker Nick Trotta

Mike Oates, Alan and CCA Board Member Ira Gold

CCA Board Member Ron Bloomer with Jim Smith

Debbie Renner and her husband Don

CCA’s Annual Membership Dinner On April 30 guest speaker NICK TROTTA shared with

presidential boat ride, what is was really like when the

the nearly 150 dinner attendees some behind the scenes

President wants to go for a jog or take a horse for a ride

stories of protecting several United States presidents

or when the daughter of a President wants to hang out

and their families during his time as a member of the

with friends! With 30 years of experience, the retired

Presidential Secret-Service Detail. Those attending the

head of Presidential Secret Service Detail served under

CCA Annual Membership Dinner at Anthony’s Pier

five presidents and had many experiences to share at

9 in Newburgh heard stories about a “date-night,” a

our annual dinner.

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JULY 2019 QUARTERLY NEWSLETTER

Job Growth Steady in the Hudson Valley

he was expecting. “I thought we’d see a slowdown but that hasn’t happened.”

Diorio cited continued work at

By Barry S. Lewis, Vice-President of Communications & Member Relations blewis@ccahv.com

Resorts World Catskill and the Kartrite Waterpark in the Sullivan County, Legoland and the Exit 131 site in Orange County and

The Kartrite Indoor Resort & Waterpark

the Department of Environmental Protection tunnel projects spanning several counties as key reasons for the increase in man hours.

He said local labor unions are doing their best to meet the demand for The Hudson Valley/Catskills labor

Orange County had a 3.5 percent

market remains strong with job

unemployment rate, down from 3.7

gains throughout the region in

percent in May, 2018.

May, the state labor department has

the

County’s sector

continued

strongest

gains

increased

the

number of new apprentices as well as journeyman. We’ve added 20-25 guys and I expect to add a few more.”

For the 12-month period ending

the Hudson Valley was 3.3 percent.

May 2019, the state Department of

Sullivan

That’s up from the 3.2 percent mark

Labor reported private sector jobs

employment

in April but still lower than the 3.6

in the Hudson Valley increased

percent level from May, 2018.

by 5,200, or 0.6 percent, to 816,800.

region,

private

“We’ve

The May unemployment rate in

reported.

Within

workers.

to

post

the

year-over-year,

up 9.0 percent with a jobless rate of 3.4 percent in May, down from 3.7 percent from a year ago.

“Right now, we’re 99 percent employed,” business

said

manager

Todd at

Diorio, Laborers

Local 17 in the Town of Newburgh.

Dutchess and Rockland counties

“We’re really at 100 percent because

had a 3.2 percent jobless rate in May,

most guys are only off a day before

down from 3.4 percent this same

they pick up another job.” He says

time last year. Ulster County was at

man hours for the first half of 2019

3.3 percent unemployment in May.

are ahead of 2018 – not something

ON THE LEVEL:

Gains were largest in educational and

health

services

(+4,600),

leisure and hospitality (+1,800), professional and business services (+1,200),

financial

activities

(+1,100), other services (+1,000), and

natural

resources,

mining

and construction (+800). Losses were mostly centered in trade, transportation and utilities.

JULY 2019 QUARTERLY NEWSLETTER

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Executive Order 192 and MTA Debarment Regulations

By Thomas S. Tripodianos

If being a public works contractor,

was in error, or a secure a waiver

consultant

wasn’t

from the Counsel to the Governor.

already difficult enough things just

Considering the weight given to

got harder. Public Authorities Law

past debarment in considering bid

Section 1279-h, became law without

awards the detrimental effect could

public comment on April 12, 2019,

extend past New York.

or

supplier

when it was passed as part of the New York State budget bill. The MTA provided the regulations called for under the law on June 5, 2019, which mandate retroactively that the MTA debar contractors (defined to include consultants, vendors and suppliers) if they: (1) fail to achieve substantial completion of their contractual obligations within 10% of the adjusted contract time; or (2) present claims (which includes change

orders)

for

additional

compensation that are denied in an amount that exceeds the total adjusted contract amount by 10% or more.

While

the

MTA

regulations

provide that debarment by one is debarment by all of the agencies under the MTA umbrella things get even worse because Executive Order 192, issued on January 15, 2019, mandates debarment by all state agencies and authorities of contractors debarred by any state agency or authority forever [the MTA

Regulations

suggest

the

debarment in only for five years but EO 192 would override that] unless a court determines the debarment

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It gets even worse. The MTA cannot consider

mitigating

factors

or

whether claims have been made in good faith. Debarment is required once a final determination is made

Thomas Tripodianos is a partner with the law office of Welby, Brady & Greenblatt, LLP located at 11 Martine Avenue, 15th Floor, White Plains, New York 10606.

For more information, contact Tripodianos at 914.607.6440 or at ttripodianos@wbgllp.com.

by the MTA that the regulations have

been

violated

“and

its

contracting personnel have no

managerial employee of contractor,

discretion to excuse or justify

or by any person or entity with

violations of any provision.”

a 10 percent or greater interest

But wait, there’s more. Not only is the debarment hearing held and decided by the MTA itself the“ panel may, in its discretion, also

in contractor, including without limitation any new entity created after the date of the notice of intent to debar”.

debar any of (1) the contractor’s

A coalition of industry associations

parent(s), subsidiaries and affiliates;

has been formed to challenge the

(2) any joint venture (including its

validity of the law and regulations

individual members) and any other

but, for the time being they are in

form of partnership (including its

full force and effect. Anyone doing

individual members) that includes

business on public work in New

a contractor or a contractor’s

York and especially with the MTA

parent(s), subsidiaries, or affiliates

is urged to consult with competent

of a contractor, (3) a contractor’s

counsel as to how to mitigate the

directors,

risks imposed by these new laws.

officers,

principals,

managerial employees, and any person or entity with a ten percent or more interest in a contractor; (4) any legal entity controlled, or ten percent or more of which is owned or controlled, by a contractor, or by any director, officer, principal,

Debarment is required once a final determination is made by the MTA that the regulations have been violated.

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Pay When Paid Clause Limitations

By Michael E. Catania The

Rosen

point, you may scratch your head

Elec. Co. v. Plank, LLC (Albany

recent

decision

of

and ask: Doesn’t a pay-when-paid

Supreme) is a good reminder as

clause still fix payment to when

to the limited enforceability of a

the Contractor gets paid, resulting

“pay-when-paid”

construction

in the same assumption of risk

contract clause. For over 20 years,

spoken of by the Court of appeals?

New York courts have rejected

The Court in Rosen Elec. Co. v. Plank,

“pay-if-paid” (the subcontractor

LLC addressed this very issue.

agreed that it will only get paid if the contractor gets paid) clauses as against public policy and contrary to the lien law. Since then, “paywhen-paid” clauses have become commonplace. These clauses are not without their own problems.

The payment clause in Rosen required the contractor to make progress payments to its subcontractor “within 15 days of receiving corresponding

payments was

due

For more information contact Catania at 845-565-1100 or at mcatania@cmmrlegal.com.

from

the owner.” Final payment to the subcontractor

Michael E. Catania is a partner with the law office Catania, Mahon Milligram & Rider, PLLC located at One Corwin Place, PO Box 1479, Newburgh, NY 12550.

within

exactly the type of clause prohibited in the prior Court of Appeals case.

In 1995, NY’s highest court held

“thirty days of receiving the final

that “pay-when-paid provisions

payment from the owner.” The

which force the subcontractor to

contract further stated that “[t]

assume the risk that the owner will

he

fail to pay the general contractor

this is a ‘pay-when-paid’ timing

are void and unenforceable as

mechanism, and not a ‘pay-if-paid’

contrary to public policy set forth

provision.” Based on this language,

in the Lien Law § 34.” The court

and

went on to distinguish such a

delay in payment due to an owner

clause with one that “merely

dispute, the contractor refused to

fixes a time for payment” and

issue payment. The Court did not

“does not indefinitely suspend a

let this fly. Instead, it determined

subcontractor’s right to payment

that

upon the failure of an owner to

clause effectively prevented the

[2 ] A.E. Rosen Elec. Co., Inc v Plank, LLC 2019

pay the general contractor. This

subcontractor from getting paid

NY Slip Op 50436(U)

type of pay when paid clause was

until the contractor resolved its

and remains enforceable. [1] At this

dispute with the owner, it was

parties

acknowledge

notwithstanding

as

the

a

that

2-year

pay-when-paid

Specifically, a “contractor could not utilize a pay when paid provision as a condition precedent to its obligation to pay its subcontractors.

To do so would be to make such a clause no different than a pay if paid clause, and unenforceable as contrary to public policy.”[2]

[1 ] West-Fair Elec. Contractors v. Aetna Cas. & Sur. Co., 87 N.Y.2d 148, 661 N.E.2d 967 (N.Y. 1995)

TAKEAWAY Pay-when-paid clauses are generally enforceable in N.Y. However, contractors will not be allowed to use these provisions to withhold payment indefinitely. Thus, while a pay-when-paid provision can postponepayment, it can only do so for a “reasonable time” after completion of a subcontractor’s work. What is“reasonable” in for the court to decide. In this case, two years certainly was not.

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JULY 2019 QUARTERLY NEWSLETTER

Lynn Allen Cione President

40 Matthews Street, Suite 104, Goshen, New York 10924 T 845.294.1700 ext 1100 u C 845.551.9546 u F 845.294.1897 LynnC@orangeny.com

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CCA Recognizes Sunshine Ford Lincoln SUNSHINE FORD LINCOLN in Newburgh was recently

be displayed at their dealership location on Route 17K

recognized by the Construction Contractors Association

in Newburgh is, from left, CCA Executive Director Alan

of the Hudson Valley for using local contractors to do a

Seidman, Cos Colandrea of Sunshine, Profex assistant

state-of-the art dealership renovation of all departments

project manager Spencer Reichgut and Joey Colandrea of

including sales, service and parts. Showing the banner to

Sunshine. Work is expected to be completed by the fall.

Serving the legal needs of the business community in the Hudson Valley for more than 75 years for profit and not-for-profit corporations, real estate, medical services, construction, trusts and estate planning, and local government 655 Little Britain Road New Windsor, NY 12553 12

ON THE LEVEL:

845-562-9100 www.riderweiner.com

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CCA’s Annual Lobster-Clambake The Association held its annual Lobster-Clambake

his crew from My Place, was delicious as always! A great

on May 23 at the Pavilion at Laborers Local 17. Over

time was had by all. We look forward to seeing you at

150 attended and it was great to see our members and

our next event – the CCA Golf Outing on July 29 and our

guests intermingling and catching up with each other on

Holiday Get-Together on December 2 at the Powelton

existing and new job opportunities. The food, especially

Club, Newburgh.

the lobsters and clams, provided by Ron Ferguson and

Mike Gaydos of Ironworkers Local 417 with Ken Vairo and Jack Argila of Bricklayers Local 1 NY

Jerry Sullivan and Dave Williams of Bricklayers Local 1 NY with Matt Stoddard of Ironworkers Local 417

Robin Seidman, Maris Connington, Kathy Adams and Millie Rodriguez

SMACNA Members: Don Tier, Mike Briggs, and Mark DiPasquale

Mark Your Calendar and Plan to Join Us! JULY 29, 2019: CCA GOLF OUTING AUGUST 24-25, 2019: STEWART AIR SHOW DECEMBER 2, 2019 HOLIDAY GET-TOGETHER & CHARITY EVENT DETAILS AND RESERVATION INFORMATION WILL BE SENT PRIOR TO EACH EVENT. WE LOOK FORWARD TO SEEING YOU!

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330 Meadow Avenue • Newburgh, NY 12550

Contact Us

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Construction Contractors Association:

Scott Dianis, President

Daniel J. O’Kane, 1st Vice President Mark Steir, 2nd Vice President Mike Adams, Secretary-Treasurer Ron Bloomer

Robert Kaehler Ira Gold

Joe Jerkowski

Jay Harrison

Paul Taphorn

Jay Holt

Charlotte Van Horn

A. Alan Seidman, Executive Director Barry Lewis, VP Communications & Member Services

Patty Dalton, Executive Assistant Millie Rodriguez, Admin. Assistant

Fabricators, Erectors and Reinforcing Contractors Association: Justin Darrow, Chairman Jake Bidosky, Vice Chairman Bernie Hillman, Secretary Dan Teutul, Treasurer

SMACNA of Southeastern New York: Lou Doro, President

Jim D’Annibale, Vice-President Steve Mulholland, Secretary Dan Harden, Treasurer

Mark DiPasquale, Past President Walter “Chip” Greenwood Bill Haskel