Vol. 24, No. 3
(518) 869-9800
September 2005
Inside This
Edition: NESCA And McGraw-Hill Construction Enter Alliance Agreement, Retainage On DOT Highway Projects Eliminated, President’s
Message, Court Holds
Choice-Of-Law Clause Overrides West-Fair Case Regarding Pay-When-Paid Clause,
Workers’ Compensation Changes Effective October 1, 2005, Welcome New Members, Calendar Of Events,
New Safety Training Center Opens, Member
Anniversaries
NESCA and McGraw-Hill
Construction Enter Alliance Agreement (Go Top)
McGraw-Hill Construction and NESCA have entered into an industry alliance agreement. The partners have developed and will market the NESCA/McGraw-Hill Construction Network, offering NESCA members the opportunity to find and manage jobs faster and easier than ever before, at a member-only discounted rate.
NESCA members will now have access to McGraw-Hill products and services
that will enhance their opportunities to be competitive in the marketplace.
The NESCA/McGraw-Hill Construction Network is a
simple, easy-to-use, web-based business opportunities management system that
contractors, subcontractors and suppliers can use to be more productive and
competitive. It provides access to the nation’s largest database of both
private and public project leads, powered by McGraw-Hill Construction Dodge –
600,000 projects and 60,000 digitized plans and specifications. NESCA members
can select from seven geographic packages that meet their marketing needs.
With just a few
clicks, the user can discover potential jobs that they may not have known
about. Plans can be viewed online, downloaded and printed, or hard copy plans
can be delivered overnight to the user’s door.
In addition to access to the NESCA/McGraw-Hill Construction Network,
NESCA members will receive special pricing on other McGraw-Hill Construction
services and products, including Engineering
News-Record subscription discounts and free subscriptions to New York Construction magazine. Further,
each member of NESCA will receive a complimentary subscription to the weekly
email newsletter, Constructionmail Through web links between the NESCA and
McGraw-Hill Construction, members will also be able to participate in a variety
of future events.
“We are proud that the NESCA selected McGraw-Hill Construction to
provide its members with construction information and intelligence,” said Tim
Ryan, vice president, McGraw-Hill Construction. “We believe that this Network will save members time and money in
finding jobs and securing plans and specifications, and will increase the
members’ competitive edge in the marketplace.”
NESCA members who would like more information about the member-only MHC Network discounts should contact Drew VanRoyen at (518) 869-5374.
Retainage on DOT Highway
Projects Eliminated
(Go Top)
Legislation
that repeals the holding of retainage on DOT highway projects has been signed
into law by Governor Pataki. The
Governor signed this bill (Chapter 303, Laws of 2005) on July 26, 2005, and it
took effect immediately.
This
new law amends Section 38 of the Highway Law by repealing the provisions that
require the Department of Transportation to retain funds from progress payments. The law was also amended to eliminate the
discretion of the Commissioner of Transportation to dispense with performance
bond requirements. In other words, in
order to ensure satisfactory completion of contracts, the Highway Law was
amended to require 100 percent performance bonds from all prime
contractors.
This law was enacted in
order to preserve federal highway aid.
Since the federal rules regarding retainage conflicted with State
Highway Law, an amendment to state law was made necessary to comply.
NESCA Membership Meeting
September 8, 2005
Century House – 6:00 p.m.
6:00 Open Bar/Registration
6:30 Dinner:
Sirloin Steak
7:10 Business
Announcements
7:30 Program:
“Identity Theft & Fraud”
Presented by: Investigator Michael
Cerone
Town of Colonie Police Department
Identity
theft is the fastest growing financial crime in the nation, and is the method
by which criminals gain access to an individual’s personal information, such as
name, social security number and date of birth, and use it to fraudulently
control bank accounts or incur debt in the victim’s name. Come to this meeting to learn more about
identity theft and fraud and what you can do to prevent becoming a victim.
Open Bar, Dinner, Tax &
Gratuities - $37
PRESIDENT’S MESSAGE (Go Top)
Two months ago, I indicated in this space that NESCA was exploring the possibility of offering two new and exciting member benefits, both of which I was hoping to announce within a few months. I am pleased to say that day has come.
At the August Board of Directors meeting, NESCA’s Board approved the signing of an alliance with McGraw-Hill Construction (MHC) to provide members with discounts on MHC Network Products. For years, many members may have used Dodge Reports in order to discover potential projects and review the plans and specifications for those projects. More recently, you may have transitioned to McGraw-Hill’s online network. Now, through our alliance with McGraw-Hill, NESCA members will be provided significant discounts off the regular price for the MHC Network, Basic Level. For example, MHC’s regular annual price for the Basic Level service in Geography #1 (covering 17 counties in and around the Capital District) is $2,200. The discounted price to NESCA members for this same territory will be $895. Similar discounts are available to NESCA members purchasing MHC’s Basic Level packages in six other geographies covering the Hudson Valley, North Country, Binghamton, Syracuse, Rochester and Buffalo Regions. Members must purchase a minimum of two packages (geographies) to get the special member-only rate. NESCA members who are current subscribers to the MHC Network will receive the discounts upon request at renewal of your existing contracts or by upgrading your annual service. This new alliance with McGraw-Hill Construction will save participating NESCA members a significant amount of money, and I am very pleased that we are adding these MHC discounts to NESCA’s extensive menu of member benefits.
The second new benefit to members I am pleased to announce is the opening of the Albany Safety Training Center on Railroad Avenue in Albany. Through NESCA’s partnership with the General Building Contractors of NYS (GBC) and Eastern Contractors Association (ECA), the Albany Safety Training Center has been designed to allow hands-on safety training of all kinds for contractors and subcontractors, their supervisors and their workers. Now here’s the best part. The Safety Training Center will be made available, free of charge, for use by NESCA members for company-dedicated safety training programs. It comfortably seats up to 22 people class room style. NESCA members are invited and encouraged to check out the Albany Safety Training Center at our upcoming September 13th Open House.
Finally, I encourage all NESCA members to attend our first membership meeting of the year on September 8th at the Century House. In addition to providing more information to members about our alliance with McGraw-Hill and the new Safety Training Center, we have a timely and interesting program planned on the topic of “Identity Theft and Fraud” to be presented by the Town of Colonie Police Department. Identity theft is becoming a significant problem in our country, so I hope you will attend.
Harold M. Hatfield, President
Court Holds
Choice-Of-Law Clause Overrides West-Fair Case Regarding
The Supreme Court of New York,
Appellate Division, First Department on June 2, 2005 entered its decision on Hugh O’Kane Electric Co., LLC v. MasTec
North American, Inc. In this case, the subcontractor Hugh O’Kane Electric Co. commenced an action to recover payment for
work done under a subcontract with the contractor MasTec North America. The contractor raised as a defense to the
action a pay-when-paid provision contained in the subcontract. The Court found
that, notwithstanding New York’s West-Fair
case prohibition against contingent payment clauses, the subcontract contained
a Florida choice of law clause and Florida enforced its pay-when-paid
provisions.
The Court pointed out that it was the policy of the courts of New York to enforce choice-of-law clauses provided that the law chosen has a reasonable relationship to the agreement and does not violate the fundamental public policy of New York. The Court then stated “since there was no dispute that the general contractor Florida domicile justifies the choice of Florida law, the only choice-of-law issue is whether the public policy reflected in the Lien Law §34 is “fundamental”, i.e., “whether enforcement of pay-when-paid provisions would violate some fundamental principle of justice, or some prevalent conception of good morals, or some deep-rooted tradition of the common weal”.
In reviewing the history of Lien
Law Section 34 which prohibits waivers of liens, the West-Fair case and, although not applicable to this case, Section
757 of the General Business Law, which voids choice of law and choice of forum clauses
in construction contracts, the Court concluded that history showed that the
prohibition against pay-when-paid provisions is not a deeply rooted tradition
of New York State.
It should be noted that General Business Law Section 757 which voids
choice of law clauses was effective as of January 14, 2003. Florida and other
non New York State choice of law clauses contained in subcontractor contracts
executed after this date will be void and will not negate the West-Fair prohibition against pay when
paid clauses.
Workers’ Compensation Changes Effective October 1, 2005 (Go Top)
The New York State
Insurance Department has approved a revision in the workers’ compensation
rates, however, the increase was much
less than what was requested by the New York Compensation Insurance Rating
Board (NYCIRB). The Insurance
Department approved an overall increase of 5%, which takes effect on October 1,
2005 and effect policies with rating anniversaries on or after October 1,
2005.
In addition to the manual rates changes there will also be revisions to the New York State Assessment and Territorial Differentials, which also take affect October 1, 2005. The New York State Assessment which funds the Workers Compensation Board, Re-opened Case Fund, Special Disability Fund, Interdepartmental Expenses and the Special Funds Conservation Committee, will increase from 15.1% to 17.5%, an increase of 16%. The Territorial Differentials under the Construction Employment Payroll Limitation law will decrease from 39% to 29% for Territory 1, from 30.5% to 22% for Territory 2 and from 18% to 14% for Territory 3.
NYCIRB has changed the procedure for recouping charges for the Workers Compensation Security Fund and for Domestic Terrorism. The Workers Compensation Security Fund is the fund that protects employers and employees should a workers compensation carrier become insolvent. The surcharge for the security fund had been included in the manual rates. Effective October 1, 2005 there will be a separate policyholder surcharge of 2% of the premium plus assessment in lieu of the surcharge being contained in the manual rates. State Insurance Fund policyholders will not be charge the 2% Security Fund surcharge since the State Insurance Fund is not required to pay into the Security Fund. The $.01 Domestic Terrorism and Catastrophe charge, which has been included in all manual rates since February 23, 2003, will be removed from the manual rate and will be replaced by a stand-alone charge, which is similar in application to the TRIA charge for Foreign Terrorism. The charge will be stated as a rate per $100 of payroll.
There are five additional changes worth noting, which also become effective October 1, 2005. The USL&H (United State Longshoreman & Harbor Workers Act) surcharge increased from 91.3% to 111.2%, a 22% increase. The expense constant increased from $180 to $200, the cap for executive officers payroll increases from $1,425 per week to $1,450 per week and the minimum premium charge will increase from $850 to $875.
If you have any questions concerning these changes, please contact your insurance representative or you may contact John Blackmore, ESSA’s Workers’ Compensation Safety Group Manager at (516)-733-9252.
Welcome New
Members (Go Top)
PO Box 118
Rexford, NY 12148
(518) 371-6737; FAX (518)
371-7203
Contact: Andrew Sciocchetti
6 Wembley Court
Albany, NY 12205
(518) 464-6783; FAX (518)
464-6649
Contact: Bob Burns
CALENDAR OF
EVENTS (Go Top)
September 8, 2005
Board of
Directors Meeting
Century House,
Latham, 5 pm
September 8, 2005
NESCA
Membership Meeting
Century House,
Latham, 6 pm
September 12,
2005
21st
Annual NESCA Golf Outing
Shaker Ridge CC,
11 am
September 26,
2005
NESCA/GBC/ECA
12-Wk. Course
Basic
Blueprint Reading
Building Industry
Center, 6 pm
September 27,
2005
NESCA/OSHA
Alliance Seminar
Electrical
Hazards
Building Industry
Center, 6 pm
October 6,
2005
Board of
Directors Meeting
Century House,
Latham, 5 pm
October 13,
2005
25th
Annual NESCA Trade Show
Century House,
Latham, 4 pm
New Safety Training Center
Opens (Go Top)
NESCA, in cooperation with the General Building Contractors of NYS (GBC) and Eastern Contractors Association (ECA), announces the opening of the Capital District’s only hands-on safety training center. The Albany Safety Training Center, located at 116 Railroad Avenue, Albany, has been designed to allow member contractors and subcontractors to reserve the facility for company-dedicated, hands-on safety training.
The Safety Training Center
contains a number of modules to simulate confined space and fall protection
hazards, and contains a variety of safety equipment such as lockout/tagout
kits, a confined space tripod & winch, a scaffold system, miscellaneous
slings & rigging equipment, miscellaneous fall protection equipment,
respirators, hearing protection, dual station eyewash and other safety
equipment. The Safety Training Center
also includes a television and DVD/VCR unit and wireless internet service.
So that members of NESCA, GBC and ECA may see and learn more about the Albany Safety Training Center, an open house has been scheduled for September 13, 2005, from 11 am until 2:00 pm. NESCA members may reserve use of the Albany Safety Training Center for company safety training programs absolutely free of charge by calling Dennis Kiefer at GBC (518) 869-2207. A key to the Safety Training Center will be made available for pick-up at the Building Industry Center.
Additional NESCA Members Who Have Made Sustaining Dues and PAC Contributions
Since the printing of the August NESCA Newsletter, additional members have made voluntary sustaining dues and PAC contributions over and above their regular dues payment. NESCA thanks these members for your generosity.
Sustaining Dues Contributions
Patron Group ($250) Sustaining Member ($100)
The Woodward Company J. Hogan Refrigeration & Mechanical, Inc.
In September, the following members have reached milestone
anniversaries as members of NESCA.
Thank you very much for your continued support!
Ten Years – Crisafulli Brothers
Plumbing & Heating Contractors, Inc.
Twenty Years – General Drywall
Corporation