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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JULY 2019 QUARTERLY NEWSLETTER
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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
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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.
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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
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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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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