sta subcontractors news april 2014

1April 2014SUBCONTRACTORS NEWSBringing New York’s Union Subcontractors Together to Build a Stronger Construction Industry

April 2014

2 President’s Message

3 In Memoriam: Ronald S. Berger (1933-2014)

6 Revisit Your Construction Safety Program in April By Hank Kita, Executive Director, Subcontractors Trade Association

8 Claims Against New York City: Preserving Your Article 27 Contract Rights By Henry L. Goldberg, Managing Partner, Goldberg & Connolly and STA Legal Counsel

12 STA Co-Hosts ConTech 2014

IN THIS ISSUE

In Memoriam: Ronald S. Berger

(1933-2014)

Email Feedback to the STA Office

P R E S I D E N T ’ S M E S S A G E

STA Subcontractors News2

I would like to thank all of our members who have supported the upcoming Annual

Awards Dinner on May 3 at Russo’s on the Bay. The event is coming up quickly and

proving to be a success, thanks in large part to your efforts. We look forward to

seeing you all there.

It is with great sadness that we focus this issue of the newsletter on a remembrance

and celebration of Ronald S. Berger, former Executive Director of the STA, who

passed away this month. Ron was the driving force behind the STA for many years;

our organization would not be where it is without his passion and commitment

throughout the years. We offer our deepest condolences to his family.

The STA will host its annual Golf Outing on Monday, June 23, 2014, at the Cherry

Valley Club in Garden City. Each year, our golf outing is a wonderful opportunity to

enjoy a day outside and relax with fellow members. An invitation will be issued in

the upcoming weeks. We hope you can join us.

Sincerely,

Jerry Liss

[email protected]


3 3April 2014

The New York City union construction subcontractor community has lost one of its most tireless and vocal champions.

Former Subcontractors Trade Association (STA) Executive Director Ron Berger, who served the STA in that position from 2002 to 2013 and passionately advocated for union subcontractors, died unexpectedly on Saturday, April 13. He was 81.

Ron had great joy for life and deep love for his wife Harriet and family. Ron and Harriet were inseparable. In recent years, Ron worked side by side with Harriet at the STA.

Ron’s passion and commitment to the STA and the industry as a whole was unparalleled. In addition to his service as Executive Director, Ron Berger was involved with the STA across four different decades including time as President of the STA’s Board of Directors. His outstanding service to the STA was recognized in 2013 when the organization renamed one of its annual recognition awards as the “Ron Berger Subcontractor of the Year Award.” He brought a wealth of knowledge and experience to the association from his 40 years previous in the construction industry.

After receiving his Bachelor of Science degree in Electrical Engineering from the Pratt Institute in Brooklyn, New York, Ron went on to a successful career with positions as either President or Chief Executive Officer in a number of corporations that specialized in fire, life safety, security and integrated systems.

Ron provided management, direction and guidance to members of his staff and was responsible for

business development, provided solutions to complex fire and security problems both domestically and internationally, and contributed to system design and procurement installation for Fortune 500 Companies and government agencies such as AIG, American Express, ADP, DuPONT, Verizon, MTA, NYNJPA, NYC Department of Correction, NYS Department of Corrections, Federal Bureau of Prisons, Government of Spain Ministry of the Interior and the Spanish Guardia Civil.

Ron was a founder and former board member of the Automatic Fire Alarm Association (AFAA). Ron was also a member of the National Fire Protection Association (NFPA) and served on the Life Safety Committee on Building Services and Fire Protection Equipment, and on the New York City Fire Alarm Code Revision Steering Committee.

“The contributions of Ron Berger to the STA and the New York City subcontractor community cannot be quantified,” said Hank Kita, current Executive Director of the STA. “I have lost a friend and mentor and the STA has lost an unforgettable leader who was a driving force in the cause of union subcontractors,” Kita said.

A funeral service was held for Ron Berger on Monday, April 14, 2014 in Paramus, New Jersey.

Memorial Donations can be made “in memory of Ronald S. Berger” to Mount Sinai Heart, Tisch Cancer Institute or Richenthal Institute for Pulmonary & Critical Care to the following address: Mount Sinai Development Office, One Gustave L. Levy Pace, Box 1049, New York, New York, 10029.

In Memoriam: Ronald S. Berger (1933-2014)

4 STA Subcontractors News

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With April designated as “Construction Safety Month,” this would be a good time for all subcontractors to take stock of their safety programs and revisit their internal safety protocols.

It would be an understatement to say that construction is a dangerous industry. Nationally, construction accounts for the second most fatal work injuries of any industrial sector after “transportation and warehousing.” Anyone involved in the construction industry knows that construction safety accidents are a part of the business. That fact however should not result in an acceptance of risk taking and careless activity on job sites.

With high density and high rise construction being the norm locally, New York City construction is inherently more dangerous than most other parts of the United States. Last year, the number of construction related deaths dropped in New York City, but the number of injuries rose according to the New York City Department of Buildings (DOB). Construction fatalities fell from eight in 2012 to three in 2013. At the same time however, the number of construction related accidents increased 5.7 percent to 186 last year from 176 in 2012. The number of reported construction injuries climbed 4.3 percent to 195 in 2013 from 187 in 2012.

With a slowly improving construction market here in New York City, competition to win projects has only intensified, with owners, general contractors and construction managers putting even more pressure on subcontractors in the pricing of jobs and increasing the pressure to get jobs done quickly. However, trying to cut costs by cutting corners

with safety is a false saving. One accident can far outweigh all of the perceived savings and threaten the financial solvency of a subcontractor.

In spite of the inherent costs associated with the implementation of a sound safety program, establishing a culture of safety in your company can only have a positive long term impact on the “bottom line.” When a subcontractor builds a strong culture of safety, it becomes a core value for every employee. A strong safety culture enhances your company’s reputation which is one of the most valuable assets for any business and plays an essential role in its long term success. A safer company suffers fewer losses, enjoys lower costs and becomes a more competitive bidder. In addition, the subcontractor with a strong safety culture is more attractive to potential clients and insurers.

Safety on the job site starts at the top. To have a significant impact on employees, safety has to be instituted as a core value of your company. Subcontractor executives should instill the idea of safety as a core value at every level of their company and that responsibility for safety lies with everyone.

Safety should be a job that never ends! Safety has to be continually instilled in your workers and continually be adapted to the new ways that construction workers are performing their jobs. Your ultimate goal should be zero injuries. In the end, every subcontractor wants every worker to go home safe at night. This is a simple but noble goal that everyone should revisit now!

Revisit Your Construction Safety Program

BY HANK KITA, EXECUTIVE DIRECTOR, SUBCONTRACTORS TRADE ASSOCIATION

7April 2014

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8

Article 27 of the New York City Standard Construction Contract (“City Contract”), provides a procedure for resolving most (not all) disputes regarding City projects. The procedure is quite straightforward: (1) the “Engineer” for the City on the project makes a determination with which the contractor disagrees, (2) within 30 days from the Engineer’s adverse decision, the contractor must submit a “Notice of Dispute” appealing the decision to the department’s Commissioner (with the Commissioner’s invariably “rubberstamping” their Engineer’s decision), and (3) the contractor must submit a “Notice of Claim” regarding its dispute to the Engineering Bureau of the New York City Comptroller’s Office, a political body independently elected from the City administration.

Historically, one of the few protections for contractors found in New York City’s overwhelmingly one-sided Contract is that Article 27 prevented a Commissioner from “sitting” on his decision. It permitted, but did not compel, a contractor to proceed to the Comptroller’s office to seek an independent review and settlement of its claim despite the absence of a timely Commissioner’s decision. This provision (Article 27.2) provides that:

“Failure to make such determination [on the part of a Commissioner] in a time required by this Article 27 [30 days] shall be deemed a non-determination without prejudice that will allow application to the next level.”

This makes perfect sense. Since the contractor has 30 days from its receipt of a decision by a Commissioner to submit a “Notice of Claim” to the Comptroller, what

would happen if a Commissioner delayed, or even declined, to issue a timely decision? A contractor could not then follow the dispute procedure and would be “trapped” at the departmental level without access to the independent and expert Comptroller’s Office.

This provision clearly addresses such a situation and provides a straight-forward remedy. A contractor could simply declare a Commissioner as having made a “non-determination” and proceed in a timely fashion to the Comptroller’s office. For as long as I can remember, this provision was recognized for what it clearly was, a protection to be used by a contractor, when it considered it appropriate, to avoid being held up in the dispute process at the Commissioner level. What else could “will allow” possibly mean?

Furthermore, in such circumstances, the delay in the resolution of the controversy, is, of course, completely the fault of the City since it was a City Commissioner that did not proceed to make a decision in a timely fashion. To find a contractor delayed the process by not exercising this option, would be ridiculous.

This, of course, did not prevent the City’s notorious “kangaroo court,” the Contract Dispute Resolution Board (CDRB), consisting of two City employees and a third member chosen from a City-maintained list, to somehow find that a Commissioner’s delay was not the City’s fault, but rather the contractor’s. This CDRB decision resulted in a complete forfeiture of the contractor’s claim where it failed to opt to proceed to the Comptroller’s Office based on a theoretical “non-determination” by a tardy Commissioner.


Claims Against New York City: Preserving Your Article 27 Contract Rights

BY HENRY L. GOLDBERG, MANAGING PARTNER, GOLDBERG & CONNOLLY AND STA LEGAL COUNSEL

continued on page 10

9April 2014

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As the CDRB inexplicably held,

Petitioner filed to his Notice of Dispute with [the Agency] … Because the agency took no action within 20 days, the claim was deemed rejected … At that point, Petitioner [only] had another 20 days to file a notice of claim with the Comptroller. Thus, his time to file the notice of claim with the Comptroller expired … Petitioner did not file his notice of claim until … well beyond the time provided for in the contract. [Please note that the time requirement under Article 27 of the Standard City Construction Contract is 30 days.]

Note the actual language of the CDRB decision: “the claim was deemed rejected.” One must ask, by whom? The contractor evidently never elected to do so. How can the CDRB retroactively impose that action upon the contractor? Nonetheless, it did so and the contractor’s claim was completely forfeited.

It also should be noted that an appellate court in New York has also adopted this perverse reasoning without basis. The court stated:

“The lack of adverse determination by the responsible agency on plaintiff’s claims did not preclude plaintiff from seeking administrative review in a timely manner since the contract provided that the agencies failure to render a decision within 20 days of the filing of the claim was deemed a rejection of the claim.”

However, nowhere in the City Contract does the “failure to render a decision” on-time automatically equate to a deemed rejection. Again, the contractor’s claim was dismissed for failure to exercise its option.

G&C Commentary

The only common denominator I can see in these two dangerous decisions is obvious efforts by City attorneys to distort the meaning and proper application of this extremely clear provision of the City’s Article 27 dispute resolution procedure. Contractors today cannot let their guard down, even for a moment, regarding any aspect of contract management. As I often comment to clients, in the current legal environment, contract management has become as important in preserving your project’s profitability as project management. The two must proceed hand in hand.

These decisions are “game changers,” particularly since it is so common for Commissioner’s not to timely issue determinations under Article 27. (How long could it take to rubber stamp an Engineer’s decision?) No contractor can rely any longer on the clear language of Article 27.2 which merely “allowed” application to the next level at the option of the contractor. This must now be treated as a requirement. A contractor must err on the side of caution, deem such inaction a non-determination and submit a Notice of Claim to the Comptroller’s Office within 30 days. Caveat contractor.

© Goldberg & ConnollyThis article has been prepared for informational purposes only. It is not a substitute for legal advice addressed to particular circumstances. You should not take or refrain from taking any legal action based upon the information contained herein without first seeking professional, individualized counsel based upon your own circumstances. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you written information about our qualifications and experience.

Mr. Goldberg may be reached by email at [email protected] or by telephone at (516) 764-2800.

www.goldbergconnolly.com

continued from page 8


11April 2014

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The Greater New York Construction User Council (GNYCUC) and the Subcontractors Trade Association (STA) hosted ConTech 2014, the annual construction tech conference to focus on “Building Efficiency: Leveraging Technology for Smarter Sustainable Construction,” on Wednesday, March 26, 2014 at New York University’s Kimmel Center.

ConTech 2014 featured keynote presentations by Dan Woodridge, Strategic Leadership Advisor for APi Group, Inc., and Dmitri Konon, Executive Vice President of New York City Economic Development Corporation’s Capital Program Division. The conference also featured robust discussion panels on smart construction issues relevant to real estate, construction and design professionals in all areas of the industry. Lean construction, sustainability, digital design and construction advances were among the topics discussed by the following leaders in construction innovation:

• Sam Spata, AIA, Principal for International Operations, Flad Architects;

• Patrick Murray, Project Executive, Turner Construction;

• Michael Plottel, Senior Project Executive, NYC Department of Design and Construction;

• Steven Winter, Founder and President, Steven Winter Associates, Inc.;

• Daniel T. Donnelly, Chief Executive Officer, Donnelly Mechanical Corporation;

• Alison Novak, Vice President and Director of Fund Investments, The Hudson Companies;

• Ozgem Ornektekin, Director of the Office of Sustainability, New York University;

• Michael Aisner, Portfolio Property Manager, RXR Realty;

• Robert K. Otani, P.E., LEED AP, Principal, Thornton Tomasetti;

• Jim Barrett, National Director of Integrated Building Solutions (Lean/BIM/IPD), Turner

• Construction;• John David Cerone, Director of Virtual Design

& Construction, SHoP Construction;• Jeff Crompton, Vice President and Project

Executive, Hunter Roberts Construction Group; and

• Greg Roberts, Partner, AKF Group

STA Co-Hosts ConTech 2014


Dan Woodridge, Strategic Leadership Advisor for APi Group, Inc., delivers the opening keynote address.


1313 13April 2014

STA Co-Hosts ConTech 2014

Sustainability: Future Outlook panelists Elizabeth J. Heider, Chief Sustainability Officer, Skanska USA, Steven Winter, Founder and President, Steven Winter Associates, Ozgem Ornetkin, Director of Sustainability, New York University, Michael Aisner, Portfolio Property Manager, RXR Realty, Alison Novak, Vice President and Director of Fund Investments at The Hudson Companies, Incorporated, and Daniel T. Donnelly, Founder and Chief Executive Officer, Donnelly Mechanical gather before their panel session.

Daniel T. Donnelly of Donnelly Mechanical addresses the crowd.

Dmitri Konon, Executive Vice President of the Capital Program Division at the New York City Economic Development Corporation, delivers the closing keynote address.

Elizabeth J. Heider, Chief Sustainability Officer at Skanska USA, discusses sustainability issues.

Greg Roberts, Partner at AKF Group, addresses the audience during the Digital Design & Construction Advances panel.


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Subcontractors News1430 Broadway Suite 1600 New York, NY 10018T: 212.398.6220 F: 212.398.6224e-mail: [email protected] website: www.stanyc.com OfficersJerry Liss, PresidentA. Liss & Co. Inc. Robert J. Ansbro, 1st Vice PresidentThe New York Roofing Company Robert Weiss, 2nd Vice PresidentA.J. McNulty & Co. Inc. Peter Cafiero, TreasurerIsland Painting

John A. Finamore, SecretaryJordan Panel Systems Hank Kita, Executive DirectorSubcontractors Trade Association Henry Goldberg, Legal CounselGoldberg & Connolly Active Past PresidentsGreg S. Fricke, Jr.Leonard Powers, Inc. Alan Nathanson (Honorary)Forsythe Plumbing & Heating Corp. Lawrence RomanWDF, Inc. Arthur RubinsteinSkyline Steel Corp.

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The G&C Building66 North Village AvenueRockville Centre | New York 11570Phone 516.764.2800 | Fax 516.764.2827www.goldbergconnolly.com

ContactHenry L. GoldbergManaging [email protected]

Legal Counsel to the STA

New York’s “Go-To” Construction Law Firm

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