May 20, 2019
In This Issue
Upcoming ASM Events
ASM Recent Events
ASM 24th Annual Golf Tournament
Industry Events
ASM to participate in upcoming Northeast Buildings & Facilities Management Show & Conference- June 12 & 13. DCU Center, Worcester
ASM News
Welcome New Member
ASM Featured in New England Real Estate Journal
Are You Following ASM On Social Media?
Accessing The ASM Hotline
Legislative Update
Wage Theft
Predictive Scheduling
Paid Family And Medical Leave
Member News
DePaoli Mosaic Named Family Owned Business Of The Year
McDonald Electrical Shines In Historic Renovation Of Cathedral Of The Holy Cross, Boston, MA
Legal Update
Massachusetts' Prompt Pay Act - A Refresher
Uncertainty Continues Over EEO-1 Filing Requirements for 2019
Mass. Appeals Court Re-Affirms General Liability Coverage For Damages Caused By Construction Defects
DCAMM Planning Recertification Fee Increase
Improve Your Health And Safety Program Through A FREE Research Study!
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Thank You To Members Who Contributed To The ASM Political Action Committee


Steven Amanti   
E. Amanti & Sons

Thomas Bond 
ICR Drywall, Inc.

Stefanos Bouboulis   
Homer Contracting

David and Dira Cannistraro   
J.C. Cannistraro, LLC

Joseph Clancy   
American Plumbing & Heating

Domingos DaCosta   
Costa Brothers Masonry

Aideen Doneski   
Gleeson Powers

Cassie Johnston   
Fall River Electrical

Michael Kosiver   
Lockheed Window

Jeffrey Lynch   
Enterprise Equipment Co., Inc.

Susan Mailman   
Coghlin Electrical Contractors

Daniel Marr III   
Marr Companies

Chris McPherson   
Central Ceilings

James Miller   
Salem Glass Company

Michael Pizzotti  
Pizzotti Brothers, Inc.

Richard Reid   

Richard W. Reid Electrical Co.

Michael Robbins   
ThermoDynamics








Upcoming ASM Events

May 22- Safety Roundtable- Aerial Lifts

June 5- ASM’s First Annual Family Own Round Table

June TBD - DCAMM Update Webinar

July 15- ASM Annual Golf Tournament- The International, Bolton

November 7- Save the date: Biennial Gala- Granite Links Golf Course

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ASM Recent Events

 ASM Paid Family And Medical Leave Seminar held on May 14 in Waltham. Our speakers were William Alpine, The Director of The Department of Family and Medical Leave and David B. Wilson of Hirsch Roberts Weinstein LLP.

ASM recently had an opportunity to meet with Senate President Karen Spilka to talk about subcontractor issues and the state of the Massachusetts economy. Pictured are ASM President Sue Mailman, President Elect Peter Gormley, Directors Mac Lynch and Peter Townsend, and CEO Mike McDonagh.

 

ASM  Opioid Forum held on April 24 in Waltham.
This two hour forum focused on the  key tools and resources
members need in their business to address the opioid epidemic.


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ASM 24th Annual Golf Tournament

Don’t miss the most enjoyable construction industry event of the Summer – ASM 24th Annual Golf Tournament, on July 15 at the International Golf Club in Bolton!  Reserve your foursome or twosome now, because player spots are going quickly – and always sell out by the end of May!  And, for greater impact, please consider our many great Sponsorship Opportunities, too!  The Golf Outing is ASM’s most important fundraiser, providing needed revenue to keep ASM going. SO, please show your support – and get great publicity and recognition in return!  

To sign up to play, click here. To view the sponsorships still available, click here.


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Industry Events
ASM to participate in upcoming Northeast Buildings & Facilities Management Show & Conference- June 12 & 13. DCU Center, Worcester

ProExpos Group is proud to present the 14th annual Northeast Buildings & Facilities Management Show & Conference. This event will feature over 250 exhibitors displaying products and services necessary for the operation, management, maintenance and renovation of buildings and facilities in the greater New England region. 

Running concurrently with the trade show is an educational conference featuring 22 individual one-hour talks covering a wide range of topics including: LEED, Green, Sustainability, Energy, Building Commissioning, Facility Maintenance, Construction and Renovation Planning. AFE provides CEU's & BOMI provides CPD's for all 22 Conference Talks.


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ASM News
Welcome New Member

W.T. Kenney Co., Inc.- Watertown, MA

We want to provide the quality painting services to all of our clients, and we wish to accomplish this in a manner that provides a safe and rewarding work environment for our employees. We believe that a high standard of quality in the painting field can be achieved reliably, consistently and profitably.

Quality is defined by an all encompassing attitude of pride and commitment in everything we do. To achieve success, we must continue to deliver superior service to our clients on a regular basis. We also realize that we must maintain a dedicated and stable group of employees to produce quality work for our clients. The Company has a proud tradition of rewarding our employees fairly for the work they perform and treating them with the respect they have earned through their years of service to the Company.

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ASM Featured in New England Real Estate Journal

 

ASM featured in this month's issue New England Real Estate Journal

Click here to read the article.



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Are You Following ASM On Social Media?

Please take a moment to like the ASM Facebook page and follow us on Twitter and LinkedIn.

 

 



 

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Accessing The ASM Hotline

As an employer, you face a myriad of issues including employee leave, discrimination, wage and hour rules, hiring and termination.  As a construction business, you face a host of issues through the life of a project, including bidding, contract terms, payment and more. When issues arise, it’s often hard to know what to do. There is an easy way to get quick answers to your questions – ASM’s Hotline –FREE to ASM Members.

How do I access the Hotline? Send an email to mail@associatedsubs.com. We will forward your question to the appropriate attorney who will respond by phone or email.

Who are the attorneys?

Construction questions are referred to JohnM. Curran, Esq. at the law firm of Corwin & Corwin LLP, which has served as legal counsel to ASM for more than 65 years.

Employment questions are referred to David B. Wilson, Esq. and Catherine E. Reuben,Esq., at the law firm of Hirsch Roberts Weinstein, LLP.


Insurance questions are referred to David M. O’Connor, Esq. at the law firm of O’Connor & Associates, LLC.
 

What if I already have my own lawyer? You can still call the Hotline. It is a privilege of membership in ASM.

What kind of help can I expect?
The attorney will typically spend 5-15 minutes addressing questions that can be answered easily based on years of experience in their areas of practice. You will receive information to help you determine whether to handle the issue yourself or to seek professional help to pursue legal action. The Hotline is limited in scope and does not include research or document preparation.

To pursue legal action, do I have to use the Hotline attorney? No. You are free to use your own attorney or you may retain a hotline attorney. The choice is up to you and it is a private matter between you and the attorney.


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Legislative Update
Wage Theft

Spring is traditionally one of the busiest times of year for Legislative activity in Massachusetts and ASM has engaged on a number of issues recently. In April, we saw the House of Representatives pass their FY2020 state budget. The $42.7 billion dollar budget was approved by the House after debate on over 1300 proposed amendments filed by different legislators. This marks the first budget under the new House Ways and Means Chairman Michael Michlewitz (D-Boston). One amendment filed by Representative Cullinane (D- Boston) would add an additional $1 million to the budget to fund the Attorney General's Fair Labor Division to enforce wage laws against construction companies that violate Massachusetts wage laws.

Earlier in May the Senate released their FY2020 budget, and with a similar process, will debate hundreds of amendments this week. The House and Senate will then need to reconcile their budgets before July 1st. Similar to the House, the Senate has included an amendment to provide additional funding to the Attorney General's Fair Labor Division

Separately, on May 14, the Joint Committee on Labor and Workforce Development held a hearing on several bills addressing wage theft. ASM CEO Mike McDonagh testified before the Committee and raised concerns about two bills that would create a vicarious liability standard for wage theft in Massachusetts. While ASM has always supported strong enforcement of current wage and hour laws, we have continued to express strong concerns with vicarious liability. These provisions are unduly harsh and unfair to law-abiding subcontractors and businesses and would hold a company liable and responsible for bad acts of other independent companies. They would subject a lead contractor to joint and several civil liability with contractors and subcontractors for wages, damages, interest, penalties or attorney’s fees for a subcontractor's wage theft.

These bills would apply to every business entity in the commonwealth that contracts with another business for labor or services of any kind. It makes every employer in the commonwealth, in every industry- not just construction, potentially liable for wage violations against workers who are not their own employees. It holds the innocent company responsible, even if they did not know – and had no way of knowing – that the companies they hired were cheating.

ASM will continue to express concern with these bills and work with the legislature toward legislation that that is fair for all, while resulting in strong enforcement and prevention of wage theft.

Click here for a copy of the coalition letter submitted to the legislature last week.

 

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Predictive Scheduling

In case you missed it, ASM also testified expressing concern with legislation requiring employers to provide 1-2 weeks’ notice to employees of their weekly work schedule. Because construction is such a fluid industry, requiring constant changes in schedules, we urged the legislature to take these considerations into account should the bill proceed any farther in the legislative process. Click here for a copy of AMS's comments to the Joint Committee on Labor and Workforce Development


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Paid Family And Medical Leave

On Wednesday, May 1, the Massachusetts Department of Family and Medical Leave announced some changes to the implementation of the new law that you should be aware of.

Exemption Deadline Extended for Quarter 1

As an employer, if you already provide a paid leave benefit to your workforce, you may be eligible to receive an exemption from collecting, remitting, and paying contributions for paid family or medical leave under the state's PFML law. The benefits offered to employees by your approved private plan must be greater than or equal to the benefits provided by the PFML law to be granted an exemption. You can apply for an exemption from the medical leave contribution, family leave contribution, or both. 

The Department’s current guidance requires that exemptions for private plans must be approved in the quarter prior to the quarter in which they will go into effect. For Quarter 1 only, however, the deadline to file for a private plan exemption that will be in effect for first quarter contributions for paid family and medical leave has been moved from June 30 to September 20, 2019 . This will allow employers additional time to contemplate private plan options. Going forward, the Department will continue to accept applications on a rolling basis, but applications must be approved in the quarter prior to the quarter in which they go into effect.

Please note that contributions to PFML begin on July 1, 2019, and the September 20, 2019, extension of the exemption application deadline only impacts the contribution requirements if the exemption request is approved. If the exemption request is denied the impacted business will be responsible for remitting the full contribution amount from July 1, 2019 forward. Therefore, DFML recommends that businesses in the Commonwealth consult with their tax advisors as to the implications associated with applying for a private plan exemption that may or may not be approved.

Employer Notice to Employees

The deadline for employer notice to employees has been extended from May 31 to June 30, 2019. The notice, which may be provided electronically, must include the opportunity for an employee or self-employed individual to acknowledge receipt or decline to acknowledge receipt of the information.

Click here for the employer’s guide to Paid Family and Medical Leave.

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Member News
DePaoli Mosaic Named Family Owned Business Of The Year

The Small Business Administration (SBA) has named DePaoli Mosaic Company the 2019 Jeffrey Butland Family Owned Small Business of the Year for Massachusetts and New England.

DePaoli Mosaic Company earned the recognition for being a family-owned and operated small business, with a 15-year track record that has been passed on from at least one generation to another. Since 1919, DePaoli Mosaic Company has been New England's leading Terrazzo contractor.  DePaoli works with institutional and commercial clientele including mass-transit facilities, colleges and universities, public and private schools, and hospitals.

“The Jeffrey Butland Award highlights a special family business passed down from one generation to another,” said SBA Massachusetts District Director, Robert Nelson.  “The long term sustainability achieved by the Morgan family is especially impressive with such a storied company.  Congratulations to the Morgan family on all of the success! “

Founded in the late nineteenth century as the DePaoli Mosaic Association and incorporated in 1919, DePaoli Mosaic is led by the third generation of the Morgan family.  Following in her father and grandfather’s footsteps, Leslie Carrio became majority owner of the business in 2009.  In 2010, Carrio pursued certification from the Massachusetts Office of Supplier Diversity and was designated WBE/DBE.

“I am honored to accept this award on behalf of the many families, not just my own, whose hard work and longevity in the business make DePaoli Mosaic Company a true family business,” said President of DePaoli Mosaic Company, Leslie Carrio.  “I am grateful to the SBA, both for this kind acknowledgement, and for making it possible to grow our business in an expanded office and warehouse.”

DePaoli Mosaic Company helped build Boston, installing terrazzo flooring at such notable institutions such as TD Garden, Logan Airport, Fenway Park and Symphony Hall. From 1927-2006, DePaoli was located on Magazine Street in Roxbury.  After a shorter stint in Randolph, DePaoli found a new home in 2015 and utilized an SBA 504 loan to purchase a new office and warehouse space in Canton, MA. 

Since 2009 with Leslie Carrio as President, DePaoli has enjoyed solid growth in sales and retained earnings. Over the past nine years, sales have increased over 500% while the company's net worth has tripled.  Sales for the most recent fiscal year were over $9 million; and over 250,000 sq. ft. of terrazzo installed throughout New England.

Carrio contributes to her community and supports important causes in several ways, including Andover Coalition for Education, 100 Women Who Care, and pediatric cancer patients.  Carrio enjoys helping her local community staying involved in her children’s schools, church, and opportunities to volunteer and donate to local fundraisers.

Leslie Carrio, President was honored at the annual SCORE Boston / SBA awards luncheon along with other 2019 Massachusetts Small Business Week winners at Assumption College on Wednesday, May 8th, 2019.

About the U.S. Small Business Administration

The U.S. Small Business Administration makes the American dream of business ownership a reality. As the only go-to resource and voice for small businesses backed by the strength of the federal government, the SBA empowers entrepreneurs and small business owners with the resources and support they need to start and grow their businesses. It delivers services to people through an extensive network of SBA field offices and partnerships with public and private organizations. To learn more, visit www.sba.gov

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McDonald Electrical Shines In Historic Renovation Of Cathedral Of The Holy Cross, Boston, MA

ASM and NECA Boston contractor teams with GC: Suffolk Construction, Boston, MA; Architect: Elkus Manfredi, Boston, MA; EE: WSP, Boston, MA; Owner: Archdiocese of Boston

Boston, MA – McDonald Electrical Corp. (MEC), headquartered in Hingham, MA, has competed the comprehensive electrical and lighting renovation of the historic Cathedral of the Holy Cross, located at 1400 Washington Street in Boston.  The project was integral to the restoration of the Cathedral’s entire edifice.  The project was led by John Fish, Chairman of Suffolk Construction and David Manfredi, Founding Principal of Elkus Manfredi Architects.

McDonald Electrical’s project scope entailed the highly-detailed retrofit/installation of the Cathedral’s lighting to LED light fixtures as well as its lighting control system.  MEC Project Manager Brian Goode and Foreman Mike Norton managed a crew of eight IBEW Local 103 journeyman and apprentice electricians and four telecom technicians in the historic renovation.  The project commenced in March 2018 was completed as scheduled in early April this year.


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Legal Update
Massachusetts' Prompt Pay Act - A Refresher

By: Corwin & Corwin LLP

The Prompt Pay Act has improved the flow of funds to those who furnish and pay for the labor and materials in private construction. It contains important provisions affecting progress payments, change orders, "pay-if paid", disputes, and suspension of work.

The law applies to prime contractors, subcontractors and suppliers entitled to file a mechanic's lien on projects where the prime contract has an original price of $3,000,000 or more. It does not apply to residential projects of 4 or fewer units, or where the prime contract was entered into before November 8, 2010.

Here's how the Prompt Pay Act works:

Payment Applications

Contracts and subcontracts must provide reasonable time periods within which periodic payment applications are submitted, approved or rejected, and paid. The parties may negotiate those time periods provided they're reasonable and don't exceed the prescribed limits.

The reasonable time period for submission of an application may not exceed 30 days. The cycle begins with the end of the first calendar month occurring at least 14 days after the applicant's commencement of work. Payments are based on actual progress, although milestones may still be a basis for payment if the time between applications doesn't exceed 30 days.

Once submitted, the reasonable time period for approval or rejection may not exceed 15 days. But since the prime contractor must receive, review, and assemble applications from its subcontractors for inclusion in its own submission, the law allows the prime contractor an additional 7 days to approve or reject a subcontractor's application. Likewise, the law allows each tier below the prime contractor 7 days more than the tier above for approval or rejection of an application from the tier below. The grounds for rejection are not prescribed by the law and remain subject to the parties' contract. However, any rejection, whether in whole or in part, must be in writing, explain the factual and contractual basis for the rejection, and be certified as made in good faith.

An application for payment that's neither approved nor rejected within the specified time is deemed approved. To account for possible oversight or error, an application that was deemed approved may still be rejected up until the time payment is due, but the rejection must otherwise meet the statutory requirements for rejection. Meanwhile, a deemed approved application advances in line toward payment.

Finally, regardless of whether approval was express or deemed, the reasonable time period for payment of an application may not exceed 45 days after approval.

Change Orders

The law also requires contracts and subcontracts to provide reasonable time periods within which written requests for change orders are approved or rejected. The time period for approval or rejection of change orders may not exceed 30 days after submission of the request, or commencement of the changed work, whichever is later. The prime contractor, and each lower tier, is allowed 7 days longer than the tier above for approval or rejection of a change order request from the tier below. Requirements for submission and entitlement remain a matter of contract. Rejection may be in whole or in part, but it must be in writing, explain the factual and contractual basis for rejection, and be certified as made in good faith.

If a change order request is neither approved nor rejected within the specified time, it's likewise deemed approved, unless properly rejected before payment is due. And once approved, whether expressly or deemed, the change order request may be submitted for payment with the next application for payment.

Disputes

Disputes over rejected payment applications or change order requests are inevitable, but many contracts require resolution of disputes to await completion of the project. Consistent with the improvement to the flow of funds, the Prompt Pay Act directs that rejection of a payment application or a change order request is subject to the applicable dispute resolution procedure, and any provision that requires a party to delay use of that procedure for more than 60 days is void and unenforceable.

Pay if Paid

Contract provisions that condition any obligation to pay upon receipt of payment from a third party ("pay if paid") can shift the risk of non-payment to those with no connection to the reason for non-payment and least able to bear that risk. The Prompt Pay Act declares "pay if paid" provisions void and unenforceable, with two exceptions, which must be clearly stated in the contract. The party seeking to enforce pay-if-paid bears the burden of proof as to each element, and if neither exception applies, it must pay regardless of whether it receives its own payment.

The first exception applies where non-payment from the third party is due to failure in performance by the party seeking payment. The party seeking to enforce pay-if-paid must have provided written notice of the failure, and the party seeking payment must have failed to cure within the contractual cure period, or if there is none, within 14 days after receipt of written notice.

The second exception applies where the third party fails to pay because it is insolvent or becomes insolvent within 90 days after submission of the application for payment. But, the party seeking to enforce the payment condition must have taken specific measures to obtain security and minimize the risk of non-payment. Those measures are filing documents to obtain a mechanic's lien before its first application for payment for on-site work, maintaining, perfecting and foreclosing on the lien, and pursuing all reasonable legal remedies to obtain payment until there's a reasonable likelihood further action will not result in payment. The party seeking payment may question the legal remedies taken, and if not satisfied, may file a proceeding in court for a quick judicial determination.

Suspension of Work

Unpaid contractors and subcontractors may no longer be forced to continue work because of contract provisions prohibiting suspension for any reason, or requiring long notice and cure periods for non-payment. Now, any contract provision requiring a person to continue working if payment of an approved amount is not received within 30 days of when it's due, is void and unenforceable.

There are two exceptions:

  • The first exception is when non-payment is due to a dispute over the quality or quantity of work, typically where defects or errors in measurement appear after payment approval for apparently correct work or quantities.

  • The second exception is when non-payment is due to a default occurring after approval of the payment, typically where the party seeking payment has defaulted in some other way, such as abandonment of the project, causing damages that fairly should be offset against the pending payment. For either exception to apply, the party seeking to prevent suspension must have given prior notice of the dispute or default, and paid all undisputed amounts due.

Unenforceable Provisions

Prompt Pay is the law. And to make sure of that, the Act also provides that any contract provision which purports to waive or limit the terms of the law is void and unenforceable.

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Uncertainty Continues Over EEO-1 Filing Requirements for 2019

By: Hirsch Roberts Weinstein, LLP

Every year, employers with 100 or more employees (and certain federal contractors) must submit a completed EEO-1 form to the Equal Employment Opportunity Commission. The EEO-1 provides demographic information about the workforce, sorted by job category, including race, sex and ethnicity. This year, however, there is uncertainty over a new EEO-1 requirement – the inclusion of pay data.  

In an effort to ferret out equal pay violations, the EEOC under President Obama had amended the EEO-1 form to require that employers additionally submit data about the wages and hours of the workforce. Before the revised form was implemented, however, this controversial and potentially burdensome change was blocked by the Trump administration in 2017, to the relief of many employers. 

On March 4, 2019, a federal court reinstated the new payroll reporting requirements effective immediately. However, two weeks later when the EEOC opened the window for employers to file their 2018 EEO-1 demographic data, it did so without requiring pay data. Worker-advocate groups who brought the lawsuit against the EEOC argued that employers must also file 2018 pay data during this window.  

The EEOC pushed back and argued that it if employers started submitting payroll data by the May 31 deadline, the EEOC would not have the time or resources to process it. Instead, the EEOC sought to extend the deadline to September 30, explaining that the agency intends to hire a private contractor to collect and compile the data on the EEOC’s behalf. 

At an April 16 court hearing, the EEOC also told the court that if the deadline to collect pay data was any sooner than September 30, 2019, the private contractor it hired would “walk away” from the project because it would not be able to satisfy professional standards. By this point, the worker advocate groups seemed to accept the September 30 deadline, and told the court that they sought assurances that the EEOC would meet this deadline. The judge has given the parties until April 22, 2019, to submit proposed orders on how the court should rule on the EEO-1 pay data deadline. 

The bottom line is that, at present, employers cannot be sure what the deadline will be for the submission of pay data, but it seems highly likely that employers will only need to file their usual EEO-1 report on May 31 without the need for additional payroll data. Employers may eventually be required to submit additional payroll data to the federal government, perhaps as early as September. Regardless, equal pay remains a hot issue and employers are well-advised to evaluate and monitor their pay practices to ensure compliance with equal pay laws, including last year’s updated Massachusetts Equal Pay Act.

HRW will continue to update its clients concerning any new developments. Employers with questions in the meantime should contact Kathleen Berney or any other HRW attorney.

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Mass. Appeals Court Re-Affirms General Liability Coverage For Damages Caused By Construction Defects

By: Sakib A. Khan, Esq.

In a recent decision, All American Ins. Co. v. Lampasona Concrete Corp., the Massachusetts Appeals Court affirmed its long standing precedent that a contractor’s general liability insurance is (usually) liable for damages to overlaid material caused by a contractor’s improper construction of a substrate.  In this case, the Owner sued a subcontractor that poured a concrete slab above a vapor barrier to be a substrate to finish flooring materials.  The slab was allegedly negligently constructed, with the fiber reinforcement improperly placed, causing wicking up through the slab that subsequently damaged the finish flooring.

The trial court judge determined that the flooring system (vapor barrier plus slab plus finish flooring) was an integrated product, and as such certain exclusions in the general liability policy applied—specifically exclusion for the replacement of improperly installed work.  The Appeals Court overturned that decision, ruling that only the slab was the subcontractor’s work, and the finish flooring (installed by others) may be covered by the general liability policy.

Despite the best efforts of insurers, many construction defects claims cause some damage to property other than the work of the negligent contractor, which can create avenues to argue for insurance coverage and defense obligations.  Careful analysis paired with persistent advocacy will, in many instances, cause insurers to step up to the plate and defend against defects claims, and often settle them.

Contractors should promptly consult with counsel about notifying their general liability insurer as soon as they are aware of a claimed construction defect.

Attorney Sakib Khan regularly advises owners, architects, engineers, contractors, subcontractors and suppliers on construction defects and insurance defense matters.

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DCAMM Planning Recertification Fee Increase

The Division of Capital Asset Management and Maintenance recently announced plans to increase recertification fees in July. Please click here for their current and proposed fees and please contact ASM if you have any questions or feedback.  

DCAMM Certification Application -Benefits Of Redesigned Systems
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Improve Your Health And Safety Program Through A FREE Research Study!

This research study aims to help small to medium subcontractors by conducting a FREE needs assessment for your company and deliver a custom plan and resources to improve your health and safety policies, programs, and practices.

To learn more, click ARM FOR SUBS for more information!


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Published by:

Associated Subcontractors of Massachusetts, Inc.
15 Court Square, Ste. 840
Boston, MA 02108

617-742-3412

 
http://www.associatedsubs.com