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24TH ANNUAL TRADE SHOW TO BE HELD ON OCTOBER 14^TH (Go Top)

Business owners and managers involved in the commercial construction industry who wish to learn about the latest in construction products and services will have the opportunity to engage in some one-stop shopping when NESCA hosts its 24th Annual Trade Show on Thursday, October 14, 2004 at the Century House in Latham. The Trade Show, which will be held from 4:00 - 8:30 p.m., will expose subcontractors, general contractors, design professionals, manufacturers, and public owners to a wide variety of products and services in virtually every trade category. Rigging equipment, power tools, lifts and ladders, acoustical products, windows and doors, insurance and bonding services, welding equipment, building materials, fasteners and fencing products are among the many products and services which will be on display at the Trade Show.

All available exhibit space has been sold out for the Trade Show, and total attendance is expected to top 500. Those NESCA members who have attended the Trade Show in the past know that it is much more than just a trade show, it is an industry event calculated to bring the various segments of the commercial construction industry together for an evening of business networking. While taking in the exhibits, attendees will be treated to a variety of hors d’oeuvres, carving stations and other great food at the International Food Bazaar. Door prizes will be given away by exhibitors, and a “Super 50/50” drawing will be held, with a guaranteed payout of at least $1,000 to the winner!

NESCA’s condensed 4 1/2 hour format, unlimited food and bar, exciting prizes, networking with construction industry professionals and the chance to see the most complete line-up of commercial construction products and services available in Northeastern New York is sure to make this event one that NESCA members will not want to miss. The admission fee for the Trade Show is $20 per person for advance registrations and $25 at the door. Once again this year, additional parking with shuttle service will be available at Guptill’s Roller Skating Arena, just north of the Century House. To register to attend the trade show, contact the NESCA office at (518) 869-9800.

SIGN-IN/SIGN-OUT BILL DELIVERED TO GOVERNOR (Go Top)

A bill advanced by organized labor that would, among other things, require contractors and subcontractors to complete sign-in and sign-out sheets on all NYS public works projects has passed both houses of the Legislature and was sent to Governor Pataki on September 9, 2004.

Specifically, this bill would amend the Labor Law:

1. By making the failure to post a statement of wage rates and supplements on public works jobsites subject to prosecution as a misdemeanor. Further, a failure to post could be found to be a willful violation (even if the proper wages and supplements were paid), thereby subjecting the contractor or subcontractor to a civil penalty and potential debarment.

2. By requiring contractors and subcontractors to maintain sign-in and sign-out sheets on public works projects reflecting the dates worked, including arrival and departure times, of all workers employed on the jobsite.

As of the writing of this Newsletter, the Governor had not yet acted on this legislation, but there are indications that he will veto the bill.

24TH ANNUAL NESCA TRADE SHOW

CENTURY HOUSE, LATHAM

OCTOBER 14, 2004 - $20 PER PERSON

Exhibits Open

4:00 - 8:30 p.m.

Food Bazaar & Hors D’oeuvres

4:30 - 8:00 p.m.

Open Bar

4:00 - 8:00 p.m.

Super 50/50 Drawing

8:00 p.m.

Silent Auction

4:00 – 7:45

PRESIDENT’S MESSAGE (Go Top)

I’m pleased to report that we had a great turnout for NESCA’s first membership meeting of the year held on September 9^th at the Century House. Many members came to this meeting to learn more about The Pike Company, the subject of our General Contractor Showcase program. Key members of Pike’s management team made an interesting presentation about this Rochester-based company, which performs $400 million of construction contracts annually throughout upstate New York. NESCA members were provided information about the type of work and project delivery systems Pike engages in; recent notable projects as well as new projects in the pipeline; the history, business philosophy and unique characteristics of the company; what they expect of their subcontractors and what their subcontractors can expect from them. Based on our good attendance and the positive feedback we have received about the General Contractor Showcase held last March as well as the one held on September 9th, NESCA’s program committee will likely hold these types of programs periodically over the next several years.

Coming up on October 14^th, instead of our regular membership meeting NESCA will hold its 24^th Annual Trade Show at the Century House from 4:00-8:30 p.m. Exhibit space for the Trade Show has long since been sold out, and Trade Show chairman Dick McNitt predicts attendance will top 500. As most of you know, NESCA’s Trade Show has become an industry-wide event attended not only by NESCA members, but also by many general contractors, developers, design professionals, facilities managers, public works officials and others with a connection to the commercial construction industry. All members were recently mailed information and registration forms to attend the Trade Show, and I can’t encourage you enough to do just that. In addition to being a great time, the Trade Show provides our members with an opportunity to network with hundreds of other people involved in commercial construction.

I’d like to thank the many members (85% of you) who have already paid your 2004-05 NESCA dues. As you may know by now, membership growth for NESCA is something I believe to be extremely important. There are so many positive things this organization has accomplished over its 33-year history which have been of significant benefit to all subcontractors and suppliers operating in New York State. There are also many more things we can accomplish down the road, but only if we keep the members we have in addition to bringing in more new members. That is why I urge the 15% of you who have not yet paid your 2004-05 membership dues to do so as soon as possible. I also urge all existing members to recruit a new member this year. Let’s face it, there’s not a construction organization out there that accomplishes what NESCA does on a $635 dues structure. Just since our new fiscal year began a few months ago, we’ve seen the Governor sign ESSA’s 34^th legislative victory into law on July 20^th, we sold out NESCA’s annual Day at the Races on July 29^th, we signed an Alliance Agreement with OSHA on August 10^th, we had a well-received General Contractor Showcase on September 9^th, we sold out our annual Golf Outing on September 20^th, we sold out the exhibit space for our annual Trade Show on October 14^th, and we’ve scheduled our first three educational programs of the year to be held in September and October. This is all in addition to the day-to-day assistance our staff provides to members every day. Please, support the organization that does so much for your company and for the construction industry by sending in your 2004-05 dues payment soon.

Kevin J. Garrity, President

FULL AND FINAL WAIVER OF LIEN CAN PRECLUDE FURTHER PAYMENTS (Go Top)

In Tri-State Environmental Contracting, Inc. v. PT&L Contracting Corporation, et al. (March 2, 2004), the Supreme Court of New York, Appellate Division, First Department addressed an issue concerning a full and final waiver of lien. Plaintiff subcontractor executed five waivers and receipts for payments on the job. The final waiver denominated “Full and Final Waiver of Lien” signed by the defendant contractor and dated October 5, 2001, stated that plaintiff had accepted the amount of $847,711.60 as “a full and final payment” and “make no further claim of any nature for additional compensation for this project”.

The original contract price was $800,000. Defendant contractor made 16 payments against 13 invoices, and plaintiff executed five waivers. The first dated February 16, 2001 acknowledged a payment of $20,000 and was denominated “Full and Final Waiver of Lien”, but, unlike the October 5 full and final waiver, stated that plaintiff’s work had not been completed. The next two waivers, dated March 26 and April 19, 2001, executed before plaintiff had completed its work, acknowledged payments of $13,578.06 and 26,000, were denominated “Partial Waivers of Lien”, waived any liens for work performed up to their respective dates and, unlike the waivers denominated as full, did not say that plaintiff would “make no further claim of any nature for additional compensation.” The fourth waiver, dated August 27, 2001 after plaintiff had completed its work, acknowledged a payment of $20,000 and was denominated partial; the fifth waiver, which was the final waiver dated October 5 acknowledged the payment of $847,711.60. The plaintiff subcontractor argued that additional payments made after the February waiver, although denominated as final, established the parties past practice and could be considered to show that the October 5 waiver was intended merely as a receipt for partial payment. The court rejected this argument distinguishing the fifth and final waiver as not containing any language evincing an understanding that further payments were to be made.

The lesson to be learned from this case is that subcontractors should pay particular attention to lien waivers and acknowledgements of payments which they are signing in exchange for payments on the job. Any waiver indicating that it is a final waiver and an acknowledgement of full payment for the project will preclude the subcontractor from recovering any further payments he claims are due on the job.

Terence J. Burke, Esq.

NESCA Legal Counsel

NEW OVERTIME RULES MAY AFFECT CERTAIN EMPLOYEES (Go Top)

As many NESCA members may now know, effective August 23, 2004, employers are required to comply with new employee overtime provisions issued by the United States Department of Labor under the Fair Labor Standards Act (FLSA). The new regulations have made changes to which employees may be exempt from the payment of overtime.

Given these new regulations, it is highly advisable that all members to take a fresh look at which employees are entitled by law to overtime pay under the FLSA. The FLSA requires that covered employees be paid overtime at one and one-half the employee’s regular rate of pay for all hours worked over 40 in a workweek.

The determination as to whether your jobsite labor is entitled to overtime should not be a problem for most NESCA members because the overtime exemptions to not apply to manual workers (such as construction workers) no matter how highly paid they might be. In other words, your jobsite labor is always entitled to overtime pay if they work more than 40 hours in a workweek.

The regulations become more complicated when applied to employees working in the office. Section 13(a)(1) of the regulations provides exemptions for certain bona fide executive, administrative, professional and outside sales employees. For these types of employees to be exempt from overtime pay, they must meet certain tests regarding their job duties and be paid no less than $455 per week ($23,660 annually). Job titles do not determine exempt status. In order for an exemption to apply, an employee’s specific job duties and salary must meet all the requirements of the regulations.

To qualify for the administrative employee exemption, for example, all of the following tests must be met:

· The employee must be compensated on a salary or wage basis at a rate not less then $455 per week.

· The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and

· The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

In other words, an employer can’t simply say that an inside office employee (such as a secretary or bookkeeper) is “salaried”, and therefore not entitled to overtime. Both the minimum salary and job duties tests must be applied before making such a determination. Failure to perform these tests for your employees could cost your company significantly in back pay owed down the road.

Detailed information about the new overtime provisions can be found at www.dol.gov\fairpay.

WELCOME NEW MEMBER (Go Top)

Ganje Law Office

Two Tower Place

Albany, NY 12203

(518) 437-9000; FAX (518) 437-9115

Contact: David Ganje

CALENDAR OF EVENTS (Go Top)

October 7, 2004

Board of Directors Meeting

Century House, Latham, 6 pm

October 7, 2004

NESCA/GBC/ECA Seminar

STP Unit #7

Building Industry Center, 6 pm

October 10-12, 2004

NSA Meeting

Las Vegas, Nevada

October 14, 2004

24^th Annual Trade Show

Century House, Latham 4 pm

October 18, 2004

NESCA/GBC/ECA Seminar

Steel Erection Standard

Building Industry Center, 3 pm

October 27, 2004

NESCA/GBC/ECA Seminar

Hiring For The 21^st Century

Building Industry Center, 6 pm

November 11, 2004

Board of Directors Meeting

Century House, Latham, 5 pm

November 11, 2004

NESCA Membership Meeting

Century House, Latham, 6 pm

NESCA 20^th Annual Golf Outing

September 20, 2004, Wolferts Roost Country Club

Thank You to Our Many Sponsors:

Hole-In-One for a New Auto Hole-In-One for $10,000 Cash

Cool Insuring Agency, Inc. Rose & Kiernan, Inc.

Cocktail Reception

First Niagara Financial Group

Tee Sponsors Green Sponsors

AWESCO Albany Windustrial Co., Inc.

The Breakell Law Firm All-Lifts, Inc.

Brownell Steel, Inc. Bollam Sheedy Torani & Co., LLP

Campito Plumbing & Heating, Inc. Capitaland Truck Center

Century House Corporate Benefit Planning

Cool Insuring Agency, Inc. CNA Surety

Couch Dale, PC Cristo Demolition, Inc.

Couch White, LLP Dorfman-Robbie, CPAs, PC

Fast Trek Steel, Inc. Fuller & O’Brien, Inc.

Jordan Graphic Industries, Inc. Gendron’s Truck Center

McD Mechanical, Inc. General Drywall Corporation

J.D. Parrella Electric, Inc. McLeod Systems, Inc.

Rose & Kiernan, Inc NES Rentals

Sheridan Supply Corp. Pallette Stone Corp.

Stone Bridge Iron & Steel, Inc. S & O Construction Services, Inc.

Teal, Becker & Chiaramonte, CPAs Ten Eyck Group

E.W. Tompkins Co., Inc. Valley Equipment Co., Inc.

Vellano Bros., Inc. Western Building Restoration, Inc.

The Woodward Company

MEMBER ANNIVERSARIES (Go Top)

In October, the following members have reached milestone anniversaries as members of NESCA. Thank you very much for your continued support!

Five Years Twenty Years

Albany Interiors, Inc. Steel Krafts, Inc.

Aldi Electric, Inc. STS Steel, Inc.

West End Iron Works, Inc.