Meeting Your Education and Training Needs · 2017-02-06 · INSURANCE SOLUTIONS AGC Workers Comp AGC Health Property Auto General Liability Pollution Liability Contractors Equipment

Meeting Your Education and Training Needs

• Continuing Education for Plumbing, HVAC and Electrical •• OSHA 10 and 30-Hour • Fall Protection •• CPR/First Aid/ Bloodborne Pathogens •• EPA Lead Renovation Repair & Painting

Worker Initial & Recertifi cation •• Excavation Competent Person •• Scaffolding Competent Person •• Aerial Lift • Forklift •

…And More!!!

OFFICIAL PUBLICATION OF THE ASSOCIATED GENERAL CONTRACTORS OF WESTERN KENTUCKY, INC.

A Chapter of the Associated General Contractors of America

SPRING 2016

Visit www.agcwky.org/education-training

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SPRING 2016 CONSTRUCTOR 1

SPRING 2016

CONTENTS:Executive Vice President’s Message ................................... 2

2016 AGC O�cers and Directors .................................... 4

AGC – A Leading Provider of Electrical, Plumbing, and HVAC Continuing Education ......................................... 5

$7.8 Million in Dividends Returned by AGC SIF ............ 7

Winners – AGC Chapter Safety Awards ........................... 7

AGC Golf Outing ........................................................... 7

MSU Students Receive AGC Scholarships ......................... 8

AGC Workforce Development Scholarship ........................ 9

EPA Lead Paint Renovation Repair and Painting Worker Training......................................................................... 9

Building Homes and Memories ...................................... 10

Boy Scout Merit Badge Day ...........................................11

Construction Career Day .............................................. 12

A Couple of Really Good Prevailing Wage Questions ....... 14

NPP Discount Pricing ...................................................15

MSU/AGC Samaritan’s Purse Disaster Shelter Competition ................................................................. 16

OSHA Penalty Amounts Increase .................................. 18

�e Enforceability of Oral Agreements ........................... 19

Published byAssociated General Contractors of Western Kentucky

2201 McCracken BoulevardPaducah, Kentucky 42001

Phone: (270) 744-6261, (800) 599-6261Fax: (270) 744-9522

Email: [email protected]

Printed by Innovative Printing & Graphics, Inc. · Murray, KY

Executive Vice President ......................... Chris Nelson

Safety Director .......................................Scott �omas

Communications Director ................ Cindy Robertson

Membership Director ............................. Teresa Dawes

A Chapter of the Associated General Contractors of America

OFFICIAL PUBLICATION OF THE ASSOCIATED GENERAL CONTRACTORS OF WESTERN KENTUCKY, INC.

2 CONSTRUCTOR SPRING 2016

Many unknowns exist within the construction world today. Will economic conditions continue to improve to support my business? Will an adequate supply of skilled workers be available now and in the future? How can I best harness the use of technology to increase e�ciency and delivery to owners? What new business regulations are on the horizon and how can I comply with them? �ese and other concerns confront construction �rms every day.

Many challenges lie ahead, yet, by working together, much can be accomplished. AGC has been, and will continue to be, a vital resource to our members who are facing these challenges. �e talent and expertise within our

membership is a critical tool as well. Strength in numbers is the key to success. You do not have to face the issues alone. Each of us has an important role to play to keep the industry strong.

Economic development has been a common buzzword on the national, state, regional, and local levels for many years. Competition is sti� for opportunities to attract new businesses or grow existing businesses and industries. Such growth would not be possible without the construction industry. AGC �rms build the necessary infrastructure, such as highways, bridges, and utilities related to sewer, water, and electrical services. In addition, general contractors and specialty contractors provide the expertise for constructing new buildings or expanding existing facilities and/or operations. AGC provides a pool of quality �rms to meet these needs. In addition, many members sit on boards, planning groups, elected government positions, etc. and provide expertise and a voice for the industry in relation to economic growth activities. Individually, your involvement is needed.

In the 1980s, a familiar commercial coined the phrase, “Where’s the beef?” Today, our industry, along with other industries, is asking “Where are the workers?” In day-to-day conversations with members, the need for skilled workers is always the number one topic of discussion. We have a legitimate crisis on our hands that will not go away soon. Skilled craftsmen are retiring from the industry at an alarming rate. Young people are not entering the �eld for many reasons. To �ll the void, the industry will have to signi�cantly “up its game” to compete against other industries for a shrinking pool of quality employees. �is will require a two-prong e�ort to overcome.

First, the AGC will need to continue spearheading and participating in various e�orts such as our annual Construction Career Day, local school career day/fair events, jobsite visits, etc. �e association will continue to provide other avenues of support including the Kressenberg

A Chapter and Membership Partnership: Facing Industry Challenges Together

by Chris Nelson

Executive Vice President’s Message


scholarship, new post-secondary technical education scholarships, and paid internships such as the ongoing PACAF summer work program for university students.

Second, individual members will need to increase their engagement with the school systems by visiting local vocational schools in order to connect with trade instructors and their students. Participating on advisory committees within the various programs at the vocational schools is another great way to get involved. �is kind of interaction allows instructors and students to hear �rst-hand about the career and employment opportunities within the industry, the skill sets needed to be successful, advancement potential, and what is expected of an employee. O�ering co-ops, internships, and job shadowing is another e�ective means to expose young people to the industry and is a way to identify potential future employees.

AGC �rms face an ever-changing landscape due to technology advances and increased regulatory requirements. �e good news is that assistance is available from both the AGC of America and from your local AGC chapter. AGC of America provides the best industry training and certi�cation programs in the nation. Programs such as Building Information Modeling (BIM), lean construction and supervisory training programs,

and project management and risk management courses keep �rms current on changes within the industry. �e AGC website and mobile app keep members informed by o�ering easy accessibility to upcoming jobs, training, and events. Also, at the local level, our chapter provides cost-e�ective training and/or certi�cations for OSHA, EPA, and DOT, and required CEUs for state license holders in the areas of electrical, plumbing, and HVAC.

In regards to increased regulatory requirements, AGC of America has personnel who are engaging daily with government agencies such as OSHA, EPA, DOT, DOL, etc. to identify and curb regulations that aren’t “friendly” to small businesses. Locally, our chapter, with the assistance of the chapter in Frankfort, keeps abreast of potential legislative activity each session that could have a negative impact on the construction industry and small businesses. Many of these e�orts have been successful in deterring harmful legislation that may often go unnoticed by the membership.

�e construction industry faces many challenges. I believe the chapter and the membership can work together to overcome them. With challenges come opportunities. Let’s work collectively to make the construction industry better for current and future participants.


Officers:

President:Brian McReynoldsJim Smith Contracting Co. LLC, Grand Rivers

Vice President:Marty JohnsonJohnson Plaster & Vinyl, Inc., Paducah

Treasurer:Chris BlackRay Black & Son, Inc., Paducah

Immediate Past President:Mike LawsonM.P. Lawson Construction, Paducah

Directors:Bruce Chester

Chester Mechanical, Inc., PaducahChris Clark

John Clark Construction, MurrayMax Cleaver

Cleaver Construction Co., Inc., MurrayJe� Crass

Air-Tite Insulation, LLC, PaducahRoger Dillingham

Crouch Building Associates, Inc., May�eld Danny Dyke

DC Electric of BentonKirk Edwards

Kit-Mo Rental & Supply Company, PaducahBarry Gri�thCFSB, Paducah

John HaleBill Adams Construction, Inc., Murray

David KellyKeuler, Kelly, Hutchins & Blankenship, Paducah

J.P. KellyTriangle Enterprises, Paducah

Paul KingPeck Flannery Gream Warren, Paducah

Michael MartinMorgan, Trevathan & Gunn, Benton

Greg McKeelMcKeel Equipment Company, Paducah

Crystal SandersJames Sanders Nursery, Paducah

Craig SchwettmanPinnacle, Inc., Benton

Rob �omasIMAC, Inc., Calvert City

AGC of Western Kentucky 2016 Officers and Directors

Fabricators and Erectors ofStructural and Miscellaneous SteelMillwright and Machinery Moving

Chris DarnellPhone: 270-354-9464

Fax: 270-354-9467Mobile: 270-703-1806

Email: [email protected]

836 Olive Hamlett RoadP.O. Box 606

Benton, KY 42025

Board nominations/elections are held annually in the fall. Interested in serving? Consider joining an AGC of Western Kentucky Committee. It’s a stepping stone to becoming an o�cer or director.

SPRING 2016 CONSTRUCTOR 5SPRING 2016 CONSTRUCTOR 5

AGC of Western Kentucky is a Leading Provider of Electrical, Plumbing, and

HVAC Continuing EducationLet us satisfy your CE requirements!

AGC of Western Kentucky is accredited by the State of Kentucky, Department of Housing, Buildings & Construction, to provide continuing education required for Electrical, Plumbing, and HVAC license renewal.

• Accurateup-to-daterecordsofyourcontinuingeducationhours• RapidreportingofcourseattendancetotheState.• Bundledclasses-meetyourElectricalContracting,Plumbing,

and HVAC CE requirements in one day.• Widevarietyoftopics

For complete course schedule and registration, visit www.agcwky.org (Click Education/Training on home page).

INSURANCE SOLUTIONSAGC Workers Comp

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703 Jefferson Paducah, KY (270) 442-3533 www.WesternRivers.com

Contact one of our dedicated insurance specialists today at: [email protected]

Allen Dossey

Patty Freeman

Crystal Reid

Heather Lynn

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$7.8 Million in Dividends Returned by Kentucky AGC Workers’ Comp Self Insurers Fund

In March 2016, the Kentucky AGC/SIF paid $7.8 MILLION in dividends (including Special Fund tax). �is payment marks the 22nd consecutive year the Kentucky AGC/SIF has returned premium dollars to its eligible members. �is brings the total dividends and taxes returned to Fund members since 1994 to over $153.9 MILLION DOLLARS!

�e dividends released represent an 18% return of

total premiums paid in for eligible members for the 2011 Fund Year as of October 31, 2015.

Are you taking advantage of the Kentucky AGC/SIF workers’ comp program? Why not check and see if you can save money on your premiums, and receive a dividend in a few years. Visit Kentucky AGC/SIF’s website, www.kyagcsif.com, where you can view FAQ’s, get an online quote, and more.

WINNERS!!AGC of Western Kentucky Chapter Safety Awards 2015

�e AGC Chapter Safety Awards program rewards companies who maintain and promote safe work sites. AGC is proud to recognize the following members for excellence in safety.

General Contractor Division WinnersW.D. Steele Construction – Murray, KY0 – 20,000 Work HoursRay Black & Son – Paducah, KY20,001 – 50,000 Work HoursBass Maintenance – Calvert City, KY50,000+ Work Hours

Specialty/Subcontractor Division WinnersDouble C Contractors – Cynthiana, KY0 – 5,000 Work HoursAlert Alarm Systems – Paducah, KY5,001 – 15,000 Work HoursJ.M. Walters & Son – Metropolis, IL15,001 – 30,000 Work Hours�ornton Heating & Air – Murray, KY30,001 – 50,000 Work HoursCollier Electrical Services – Calvert City, KY50,000+ Work Hours

Service Provider / Associate Division WinnersAce Design Group – Murray, KY0 – 5,000 Work HoursCalvert City Water & Sewer – Calvert City, KY5,001 – 10,000 Work HoursUtilities Dynamics – Paducah, KY10,001 – 40,000 Work Hours

PSC/Jesco Industrial Services – Calvert City, KY40,000+ Work Hours

Residential Contractor Division WinnersEspie Construction – Kuttawa, KY0 – 5,000 Work Hours

250,000+ Man Hours Without Lost Time AccidentBeltline Electric – Paducah, KYMorsey Constructors – Calvert City, KYJim Smith Contracting – Grand Rivers, KYTriangle Enterprises – Paducah, KYSafety Award tabulation forms are sent to all members

in October. Take advantage of this opportunity to evaluate your safety program and compete for an award.


MSU Students Receive AGC ScholarshipsFour Murray State University students were recipients

of AGC Education and Research Foundation scholarships. Deric Hyman and Brandon Bridges received the William L. Kressenberg Memorial Scholarship. Seth Dias received an AGC of America Scholarship, and Stephen Brown received the Consulting Constructors’ Council Scholarship. All are Juniors in the Construction Engineering program at Murray State University Institute of Engineering. Each will receive $2,500 per semester until they graduate.

�e AGC Education and Research Foundation invests in the future of the construction industry by awarding scholarships to deserving students in construction management and engineering programs across the country. Since 1970, 3,500 scholarships have been awarded, totaling $9 million.

Undergraduate and graduate level scholarships are o�ered to students enrolled in ABET or ACCE-accredited construction management or construction-related engineering programs. �e scholarships for undergraduates are $2,500 per year and can be renewed for up to three years. Graduate awards are $3,750 annually

up to a maximum of $7,500To apply, visit https://www.agc.org/learn/scholarships-

research/scholarship-program.

Scholarship Winners Seth Dias, Stephen Brown, Deric Hyman and Brandon Bridges.

Steel, Aluminum, Stainless,Exotics, Plate, Sheet, Shapes,

Structurals, Burning, Shearing,Saw, Drilling, Punching, &

Press Braking

1455 Bloom AvenuePaducah, Kentucky 42001

(270) 575-0308 • Fax (270) 575-9818

Toll Free 877-575-0308


AGC Workforce Development Scholarshipfor Craft and Technical Programs

The AGC of America Education and Research Foundation is happy to invest in the future of the construction indus-try by awarding scholarships to deserving students in craft and technical programs across the country. This is not the AGC scholarship for students in four-year degree programs. This scholarship is specifically for students plan-ning to attend a technical school or approved craft training program to enter the construction industry.Applications for 2016 will be accepted starting April 1 until June 1. To apply, visit https://www.agc.org/learn/scholarships-research/scholarship-program.

EPA Lead Renovation Repair and Painting Worker Training

�e Lead-Based Paint Renovation, Repair and Painting (RRP) rule is a federal regulatory program a�ecting anyone who disturbs painted surfaces where lead may be present. Any contractor, including renovators, electrician, HVAC specialists, plumbers, painters and maintenance sta�, who disrupts more than six square feet of lead paint in pre-1978 homes, schools, day care centers and other places where children spend time must be Lead-Safe Certi�ed. Without certi�cation and by not following approved practices, a contractor can face tens of thousands of dollars in �nes and put their company at risk of potential lawsuits.

AGC of Western Kentucky is an EPA-Accredited Training Provider for Lead Paint Renovation Worker Certification – Initial and Refresher.

EPA RRP Refresher CourseWhen: October 5, 8AM-12PMWhere: AGC of Western KentuckyCost: $125 per person

You are eligible for the 4-hour Refresher Training if you have completed the 8-hour EPA RRP Lead Safe Renovator (Initial Training). A copy of

your Renovator Initial Certi�cate must be provided prior to class.

EPA RRP INITIAL CourseWhen: September 7, 8AM-5PMWhere: AGC of Western KentuckyCost: $250 per person (lunch is provided)

Companies must submit an application to be certi�ed. Visit http://www.epa.gov/lead/getcerti�ed for more information.

10 CONSTRUCTOR SPRING 201610 CONSTRUCTOR SPRING 2016

Building Homes & Memoriesby John Pettit

JohnBoyProductions.com

Anyone who contributes to the home-building process becomes a part of that home’s story. A worker may only spend a few hours on a job, but their work and attitude can leave a lasting impression on the structure and the memory of those around them.

I remember seeing pictures from when my parents built our childhood home. One image that stands out is of my dad standing on the top of the un�nished roof with some of his friends. He’s holding a hammer over his heart. His friends look happy to be there working with him. �ey were building something together, something that would be remembered for decades to come. Over the years I would ask and re-ask my dad who these people were in these pictures. What were their names? How did you know them? Where are they now? I’ve since forgotten the answers to some of these questions, so I’ll have to ask him again.

Pictures capture a moment in time that can create a lifelong impression. As a child my impression was that the men in the picture were having a good time building something together. �ey looked strong, capable and kind. I looked up to them even though I didn’t know them. I thought they were great, maybe just because they were working alongside my dad.

At this point in my life I’m at least 10 years older than my dad was in the picture I’m referring to. Like me, these men had families, responsibilities, hobbies, relationships. Each of their lives was telling a story, and a moment from that story was captured by a

camera on a summer day on top of the house in which I would spend my earliest years.

�e stories we love to hear most involve people, usually people we or our friends and family cared about. My dad’s grandparents lived in a farmhouse about a mile down the road from where our house was being built. His grandfather would yell across the �eld when it was time for lunch. �is simple story has endured for decades, not because of the mundane necessity of eating, but because he heard his grandfather’s voice calling to him. I remember this story years after it was told because it involves relationships and not simply a lunch break.

Each person we come in contact with is a part of our life story whether they’re in our lives for seconds, hours or years. Building a house provides many opportunities to cross paths with people. Some of these people may be your own family members, friends, and some you may never see again. One minute someone could be installing something in your home that will last for decades, and the next minute they are gone – onto another job. A simple smile or encouraging word during the minutes they’re working with you can lift everyone’s spirits and give the worker a renewed sense of energy and pride in their work.

Recently, I’ve asked my parents more questions about the construction of our childhood home. “Who did the electrical work?” “Who

put on the roof?” Rarely have I asked, “Did they do a good job?” Even though the quality of work matters, the people and relationships matter more. �e answers to these questions are more relevant to me now that we’re building our own home.

I’ve had the privilege of interacting with dozens of people during the construction of our new home. �e majority of these experiences have been great, and the ones that haven’t been great can still be looked at and told in a positive light. Each story will be told and retold for years to come and it will be the relationships that matter the most. Our children will look up to those who helped build their home long after they’re gone.

Someday, when our nail pouches are empty and we hang up our hammers a picture may remain somewhere of what we built and who helped us. �e home-building process is a process of building relationships and memories that will last a lifetime.


AGC of Western Kentucky/MSU Institute of Engineering12th Annual Boy Scout Merit Badge Day

Over 275 Scouts Representing Troops from Kentucky, Illinois and Tennessee Attended!

Boy Scout Merit Badge Day o�ers scouts the opportunity to earn badges in construction-related �elds. Under the direct guidance of professionals, scouts are introduced to the world of construction and the hands-on skills necessary to perform work in these areas.

We would like to thank the following volunteers who helped make the 2015 event a huge success:

Murray State University Institute of Engineering, Dr. Danny Claiborne and MSU Student AmbassadorsVolunteers – Diane �iede, Mike Kemp and Barry McDonald Donations – JMS Russel Metals Corp. and Murray Lumber Co.

Merit Badge InstructorsArchitecture – Kevin Perry/Casey SchulteCitizen Nation – Mark AshburnCitizen World – Raymond MarshallCommunication – Daniel HaganDigital Technology – Carlos LopezCAD/Drafting – Alexander Lynn/Brooke JonesElectricity – Don HenryEngineering – Dr. John MaddoxFirst Aid – Jim �ompsonHome Repair – John HalePlumbing – Bruce ChesterWelding – Virgil Holland/Paul HousholderWoodworking – John MooreSoil & Conservation – Caitland Drewett, Kasey Wattley, Austin Wolfe and Chrystal Brantley

�is year’s Boy Scout Merit Badge Day will be held at MSU on Saturday, November 5.


AGC and MSU held Construction Career Day at the Murray State University Expo Center in September 2015. 1,500 students from 22 school systems in western Kentucky registered to attend.

“Not everybody is meant for college, and we know that; statistics show about 50 percent drop out. So, now, we have to look at avenues for employment. It’s not just what can I do for a job, but what can I do for a lifetime career? �is is where we hope to �ll that void. �ere’s no greater time than right now in the �eld of construction! �ere’s a huge workforce shortage! We get calls every day for workers needed at all levels. �is is a great opportunity to get the workers there and to get ready for the job. �at’s whether it’s on-the-job training, an apprenticeship program, or to go through a two-year program where they earn certi�cation or at a community college, where they’d earn an associate in applied science degree.

One thing these young people have to understand is they must continue their education beyond high school because construction is a high-tech world”, said AGC Executive Vice President Chris Nelson.

“Some people are good at learning by doing and can work well with their hands. I actually think that’s a gift,” Nelson said. “We have an image problem in construction because when people are out there working, of course, they’re going to be hot and dirty. But, don’t let that fool you! �ey need math skills, problem-solving skills, teamwork, and other skills. Today, this is a rewarding lifestyle. In 2013, the data shows the average construction worker made about $47,000 a year. If you go to college four years, you’re more than likely coming out in debt, by comparison. Also with construction is the chance to move up in the chain. A lot of people who own their own companies now, started out at lower levels.”

“�ere’s a wide range of occupations associated with construction,” said Nelson. ”�ere’s carpentry, plumbing, heavy

equipment, welding, iron workers, operating engineers, sheet metal, concrete, diesel mechanical schools, and at the higher end, the MSU programs. �ey include occupational safety and health, college of education, technical education, and also state programs such as the apprenticeship program out of the Kentucky Labor Cabinet and Skills USA, which is associated with vocational schools.

�anks to the following vendors, sponsors, and volunteers for making the 2015 Construction Career Day a HUGE success!

Air Gas USARay Black & Son, Inc.Cape Electrical SupplyHilti, Inc.Hypertherm, Inc.Indiana/KY/Ohio Carpenter &

Millwright JATFLincoln College of TechnologyKentucky Association of Master

ContractorsKentucky Dept. of Ed./KY Labor

Cabinet ApprenticeshipKY Laborers Joint App &

Training Trust FundsKentucky SkillsUSA

Associated General Contractors/Murray State University Fifth Annual Construction Career Day


Ironworkers Local 782 Apprenticeship

Jim Smith Contracting Co.Lithonia Lighting/LHI Lighting

SalesMTG InsuranceMcKeel Equipment Co.Miller WeldingMurray Electric Systems/Paducah

Power SystemsMurray State University

Department of Career & Technical Ed.

Murray State University Institute of Engineering

Murray State University Occupational Safety & Health

Operating Engineers Local 181 JATC

Paducah Area Construction Advancement Foundation

Paducah BlueprintPaducah Electrical JATC/IBEW

Local 816Peck, Flannery, Gream, WarrenPinnacle, Inc.

Plumbers & Steam�tters Local 184Tulsa Welding SchoolVulcan Materials CompanyWest Kentucky Rural Electric CooperativeWestern Kentucky Community & Technical CollegeWhayne Supply Co.

Volunteers:Ben Ashburn, Kim Champion,

Mike Chumbler, Dr. Danny Claiborne, Chad Colson, Brian Giltner, Barry Hatcher, Dale Heath, Dan Hicks, Mike Kemp, Heather Lynn, Barry McDonald, Jonathan Payne, Kevin Perry, Brian Provine, David Shoulders, Diane �iede, MSU Institute of Engineering AGC Student Chapter and Ambassadors, MSU Dept of Agriculture Students and Murray/Calloway County ATC Students

SAVE THE DATE 2016 CONSTRUCTION CAREER DAY

THURSDAY, SEPTEMBER 15

VENDORS AND SPONSORS NEEDED!!�e success of this event is due to the ongoing partnerships with local

schools, construction vendors, contractors, and building crafts. Help us reach future workers before they make career choices by getting involved in Construction Career Day. For more information, please contact Chris Nelson, 270/744-6261.

Congratulations to Brian Thorne, winner of Windows 10 Tablet, Vulcan Materials Calculate the Weight of the Rock Contest. (L-R) Robert Sterling/Ironworkers Local 782; Marty Tubbs/Vulcan Materials; Brian Thorn/Mayfield-Graves ATC Carpentry Student; Kevin Hutchens/Mayfield-Graves ATC Carpentry Instructor; Chris Nelson/AGC Executive Vice President


A Couple of Really Good Prevailing Wage Questions

By Robert Ely, Advantage Resource Inc.

When Prevailing Wage is the subject, there is no shortage of questions. Here are a couple of common ones:Q: My employees refer to prevailing wage fringe as “their money”. What can the Company do if the employee does not sign up for the 401(k) and they don’t have health insurance through the company?

A: �e prevailing wage fringe is a speci�c dollar value of bona �de fringes the Company must furnish an employee; it is not an employee option to choose the fringe be paid as Cash in Lieu of Fringe (wages). �e Company has the option to choose the fringe bene�ts o�ered, as long as they meet the de�nition of “bona �de” as de�ned by regulations. In addition, an employee does not sign up for a 401(k) Pension Plan company contribution; the decision to make that type of contribution is made by the Employer. �e DOL Field Operations Handbook states (1) “If an employee desires cash payments or bene�ts other than those chosen by the contractor, that would be a matter for discussion and resolution between the employee and the employer.” and (2) “�e contractor is under no obligation to obtain the employee’s concurrence before contributing to the fringe bene�t plan on his or her behalf.”

Q: I received a notice from my 401k TPA telling me that my plan must be restated. What should I make sure to look for when it comes to prevailing

wage?

A: �e IRS is requiring most 401ks to be restated before April 30, 2016. �is simply means a new Adoption Agreement must be executed.

Quite a few plans are not structured as needed to allow maximum credit for PW contributions. Some are even set up to be punitive in that regard. Here are just a few of the things you should look for:1. Are company contributions

calculated per hour, or is some other time period used for compensation? In Prevailing Wage, each hour stands alone.

2. If the plan calls for a PW Schedule or Amendment (as most all do), where does one come from and whose responsibility is it?

3. Does the plan allow for Company contributions, such as a discretionary match or a pro�t sharing contribution, to be o�set with a PW contribution for the speci�c time period of that contribution, (i.e. per hour)?

4. Is the PW contribution a QNEC, limiting the availability of this money to an employee if they still work for you? For example, if Johnny Employee has a $10,000 medical bill for his child, can he get the money from the Plan without quitting his job or having to pay it back?

5. Does your plan annualize contributions? �is has a very large and expensive downside potential in regards to the PW

contribution.6. (Even though this sounds cliché)

Is the plan doing what you want, or are you doing what the plan wants?

Some other considerations to keep in mind: • Monitorthe404aCompany

deductibility limit. Companies performing a lot of prevailing wage work should monitor this carefully.

• Understandin-servicedistributions to existing employees from the Prevailing Wage contribution.

• DiscussingHighlyCompensatedEmployees (HCEs) eligibility to receive Prevailing Wage Contributions.

• DiscussingProfitSharingasan option to reward good employees who do not have an opportunity to receive Prevailing Wage contributions.

More detail is provided in the “Prevailing Wage 401(k) Plan Design” archived webinar located on the Events page (Events > Webinars > Archived Webinars) located at www.advantageresource.com.

Robert Ely is the President and founder of Advantage Resource Inc. Based in Lexington, Kentucky, Advantage Resource provides fringe benefits administration and compliance assistance to prevailing wage contractors. More information can be found by visiting www.advantageresource.com or by contacting Robert directly at [email protected].


�e AGC of Murray State is right in the thick of a competition that will end in disaster this April! �is semester, the students have decided to enter the Disaster Shelter Competition sponsored by Samaritan’s Purse and held on the campus of John Brown University in Siloam Springs, Arkansas. �is event is very di�erent from any competition we’ve done in previous years, and will undoubtedly be our most challenging. John Brown University’s competition website1 describes the event like this:

“Samaritan’s Purse is looking for creative solutions to solving the housing problem for people displaced by various natural or man-made disasters. Engineering, Construction Management and Architecture student teams are invited to design and construct a rapidly deployable transitional disaster shelter for use by aid organizations in response to natural disasters. �e 2016 Competition scenario is response to the refugee crisis in the Middle East and Eastern Europe.”What this means for our students is that they are

required to actually build something they design. All too often, the design and construction components of classes are disconnected. �is competition immerses students in both phases, and they are quickly �nding out how di�cult it is to construct something that looks good on paper.

Our team is currently in the �nal stages of design, and with a late March target completion date, construction needed to begin yesterday. �e construction team is now experiencing how di�cult it is to move forward while waiting on a �nal design; forcing them to explore ways to start on what they can while the rest of the design is being completed.

�e design itself is no small task. At the risk of overwhelming the reader with too many details, here is what our students are up against. Criteria outlined by Samaritan’s Purse1 are as follows, though this list is not exhaustive:

Accommodation Requirements• Accommodateafamilyof4withaminimum

allocation of 11.5 square feet of space per person. Shelter footprint must not exceed earthquake shake table sized at 16’ x 20’.

• Heightmustallowstandingheadclearanceof6.5’

1 Accessed from http://www.jbu.edu/shelter_contest/design_guidelines/

for at least 70% of the �oor space • Providedignifiedaccommodationforafamily(use

of spaces by di�erent genders and ages).• Sheltershouldtakeintoaccountpotentialcultural

considerations or sensitivities.

Physical Performance:• Versatileandresponsivetothescenario

environmental conditions that may vary geographically, seasonally and diurnally (from day to night) within the scenario area.

• Provideprotectionfromextremelyhotsummers,and cold and rainy winters.

• Abilityforfloorcoveringtopreventconductiveheatloss and exposure to dusty ground

• Performwellstructurallyagainst:• Windloads(withstand47mphwind)withdriving

rain• Seismicloads,similartowithstandearthquakeof

same magnitude that devastated Haiti• Versatilityindesigntoallowadequateairflowfor

natural ventilation in hot climates• Abilitytoretainheatduetosignificantchangesin

temperatures during day/night and summer/winter.• Canbeerectedinavarietyoftopographical

and geological conditions – from sandy to rocky landscapes, �at or sloping

• Mustdemonstratethatthestructureisreusable(i.e.can be redeployed for another disaster).

• Mustbeupgradeabletosomethingmorepermanentby the shelter users, using local materials, techniques, and skills, as per transitional features mentioned above

• Allowforgroupingofstructuresforexpansionoruse for purposes other than habitation

Materiality, Cost-E�ectiveness, Packaging and Transport:• Minimumlifespanof1year–longerisbetter• Cost-effective:$1500orlesstofabricate.Economy

of scale during the production phase should be considered as vitally important. Teams must submit documentation to verify the cost of materials used in the shelter.

MSU AGC Prepares for the Samaritan’s Purse Disaster Shelter Competition

Ben AshburnMurray State University


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Students collaborate on design options and build mock-ups from styrofoam.

• Abusinesscaseanalysisshouldbecompletedtoshow the viability of mass manufacture of the shelters.

• Lightweight:Overallweightshouldbeminimized;ideally no more than 440 lbs per package to allow handling without equipment.

• Easilystoredandtransported.Manufacturedsothat it can be �at-packed and �ts into a standard 8’ x 40’ shipping container. Packable for most e�cient use of containers.

• Easyandrapidtoassemblewithouttechnicalexperience. Assembly should be straightforward and require minimal manpower, non-electrical tools - that is, simple hand tools that are generally available around the world.

Finally, on April 20 we will disassemble our shelter, pack it into a trailer, and head out to Siloam Springs where we will reassemble it and have it tested over the next two days. Our humble abode will be subjected to a shake table that simulates an earthquake, a wind generating hurricane machine named “�e Wolf”, a heat retention test, and a livability test where judges will actually spend a night in the shelter to gage its comfort.

Awards will be given for the top three prototypes, along with additional awards for highest wind load, best heat retention, lightest shelter, fastest assembly, lowest cost, and best report/presentation. If an award does manage to elude us this �rst year, we are still grateful for the opportunity to participate and learn how to improve for next year. A big thank you to the AGC of Western Kentucky and its members who have donated to this project. It means a lot to our students to have your support and encouragement. Stay tuned for results!


DO WE HAVE A DEAL OR NOT?THE ENFORCEABILITY OF ORAL AGREEMENTS

By: David L KellyPartner, Keuler, Kelly, Hutchins & Blankenship LLP • 100 S 4th Street, Suite 400 • Paducah, KY 42001

Most contractors deal with contracts on a daily basis. At least in the commercial construction context, the construction contract is typically an industry form such as the AIA or AGC or other industry group. �e contract is formed when the contractor and owner each sign. However, in a variety of contexts, contractors will also routinely enter into agreements which do not involve a formal written document. In the modern world, technology has certainly made it easier to do business. �ere is now instant communication with cell phones, email, the internet and facsimiles. While such communication has made it more e�cient to conduct business, it is also rife with the potential for disputes on whether a binding agreement has been formed. �is article shall discuss the legal issues of when a binding contract is formed.

All contracts have the same essential components – an “o�er,” an “acceptance,” and “valid consideration.” Parties will often negotiate terms over the phone or by email. For example, suppose a general contractor communicates with a potential subcontractor regarding a price to perform certain construction services. Assume the subcontractor was provided the speci�cations and relevant plans and is fully aware of the work scope. In a series of emails, the subcontractor states it will perform the work for a �xed sum of $100,000. �e general contractor responds with an email acceptance. �e subcontractor later attempts to back out of the deal and claims that since a formal written contract has not been entered, the subcontractor is not bound to the deal.

In this scenario, whether the general contractor would have the right to hold the subcontractor to the deal requires an analysis of the statute of frauds. �e statute of frauds is a law which requires certain contracts to be evidenced by a writing. �e purpose of the law is to prevent the possibility of a nonexistent agreement between two parties being “proved” by perjury or fraud. �is objective is accomplished by declaring the particular contract to be unenforceable unless a written note or memorandum of agreement exists that is signed by the persons bound claimed to be bound. Here, given the fact that the emails set forth the material terms of the agreement, the courts would very likely construe them as “writings” that meet the statute of frauds. Obviously the subcontractor could argue that the emails did not contain all the essential terms of the contract and therefore, they are too inde�nite to enforce. However, the subcontractor would have a steep hurdle to prevail on this argument. In this scenario, the subcontractor was provided the speci�cations and drawings for the scope of work. �e emails contained the subcontractor’s de�nite o�er for a lump sum price of $100,000. �e court would most likely �nd for the general contractor and enforce the contract in accordance with the agreed terms.

On the other hand, assume the above scenario is not evidenced by emails but rather, occurred in a series of phone conversations. In the conversations, the subcontractor stated he would perform the scope of work for the sum of $100,000. �e subcontractor later backs out and now asserts that no enforceable contract

exists since there is no writing. While this scenario is certainly more problematic for the general contractor, it does not necessarily mean the subcontractor is home free. Keep in mind that there is an exception to the statute of frauds’ “writing” requirement. For purposes of this scenario, a writing is not required if the alleged agreement is capable of being performed within a year. In other words, a party to an alleged oral agreement may nonetheless attempt to enforce the agreement unless the agreement is incapable of being performed within a year. Here, the general contractor would still have to prove that the subcontractor o�ered to perform the work for the stated price. �is may be accomplished through corroborating witnesses or other evidence. �e general contractor would also have the burden to prove the agreement could be performed within a year. �ough the subcontractor would not have a statute of frauds defense, this case would undoubtedly be di�cult for the general contractor to prevail. Since there is no writing, the general contractor would most likely have a di�cult time persuading the fact �nder that the parties agreed to all the essential terms.

�e above is merely intended to discuss situations in which a contract may be formed without an extensive written agreement. Obviously, the legal issues can be complex and far beyond the scope of this article. However, parties to negotiations are well advised to be cognizant of the potential for an oral agreement to be enforced. �at applies regardless of what side of the issue you may �nd yourself.


OSHA PENALTY AMOUNTS TO INCREASEBy: Scott �omas, Safety Director for AGC of Western Kentucky

It’s something business owners certainly don’t want to hear. In the near future, if you get cited by OSHA, the penalty amount will likely be signi�cantly higher. It’s the �rst time in 25 years Federal OSHA is raising penalties. �e unwelcome surprise is a result of the Bipartisan Budget Act of 2015 (H.R. 1314), signed by President Obama on November 2, 2015. �e Federal Civil Penalties In�ation Adjustment Act of 1990 gave most federal agencies (such as FDA, EPA, and EEOC) the authority to review and adjust their civil penalties in order to keep up with in�ation. �e former 1990 Act exempted OSHA from being able to do the same. �e latest section of the budget bill (Section 701 – Federal Civil Penalties In�ation Adjustment Act of 2015) would now require OSHA to adjust penalties with in�ation as well.

A one-time “catch up adjustment” will be allowed based on the percentage di�erence between the Consumer Price Index (CPI) in October 2015 and October 1990. �is law allows OSHA the option of increasing up to the maximum CPI di�erence which could equal approximately an 80% increase. �e general consensus is that OSHA will likely take this maximum one-time increase. �is could mean that maximum �nes for a Serious and Other-�an-Serious violation may increase from $7,000 per violation to approximately $12,600. A Willful or Repeat violation could increase from $70,000 per violation to approximately $126,000. After the initial “catch-up adjustment”, OSHA would review and adjust with in�ation on an annual basis thereafter. �e budget changes go into e�ect July 1, 2016 and states that are regulated by Federal OSHA have until August 1, 2016 to determine the amount of increase and place them into e�ect at that time. �e changes do not

automatically apply to states regulated by State Plans (as is Kentucky), but since State Plans must meet or exceed Federal OSHA, one can assume the State Plans will increase penalty amounts to mirror these Federal changes.

On October 7, 2015, the Assistant Secretary of Labor for OSHA (Dr. David Michaels) spoke before the House Committee on Education and the Workforce Subcommittee on Workforce Protections. His statements were clear in their objective of increasing penalty amounts along with stronger criminal stances against those “willfully” or “knowingly” endangering the lives of workers. In this speech, he stated “the most serious obstacle to e�ective OSHA enforcement of the law is the very low level of civil penalties allowed under our law, as well as our weak criminal sanctions.” He referenced comparable penalties by other government agencies for example, “the Environmental Protection Agency can impose a penalty of $270,000 for violations of the Clean Air Act and a penalty of $1 million for attempting to tamper with a public water system. Yet, the maximum civil penalty OSHA may impose when a hard-working man or woman is killed on the job – even when the death is caused by a willful violation of an OSHA requirement – is $70,000.” Dr. Michaels also compared criminal provisions in the OSH Act to those who violate the Clean Air Act, the Clean Water Act, or the Resource Conservation and Recovery Act. He stated the latter “all provide criminal prosecution for knowing violations, and for knowing endangerment that places person in imminent danger of death or serious bodily harm, with penalties of up to 15 years in jail.” He further stated that under the OSH Act, criminal penalties are limited to those cases where a willful violation of an OSHA standard results in the death

of a worker with a maximum period of incarceration upon conviction of six months in jail, making these crimes a misdemeanor. Dr. Michaels concluded that “simply put, OSHA penalties must be increased to provide a real disincentive for employers accepting injuries and worker deaths as a cost of doing business.”

With greater �nes looming, it becomes more important for companies to tighten up their safety programs and protect workers by enforcing safety procedures in the workplace. A strong safety program is really about saving lives and money. �ink of it as an investment toward protecting your workforce and hopefully guard against �nancial troubles should you be inspected.

Not all may be bad news, especially for smaller businesses. Dr. Michaels announced a new approach to Federal OSHA inspections, e�ective October 1, 2015. �ey plan to give added weight to the most demanding and complex inspections by introducing a new measurement that he called the “Enforcement Unit.” �e underlying message seems to be they’ve been short-changing the more di�cult inspections (such as large manufacturing facilities) in favor of those that can be done quickly (such as small operation sites). If this holds true, we may see fewer inspections across the board as more time and e�ort is given to these complex facilities. It’s not certain at this time if the same approach will be taken by those under State Plans (as Kentucky). It will also be interesting to see what happens if in fact penalty amounts signi�cantly increase. More companies are likely to formally Contest in court versus accepting the citation as is or settling at the Informal Conference level. If formal Contests increase it could also tie up resources within the courts.

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Meeting Your Education and Training Needs · 2017-02-06 · INSURANCE SOLUTIONS AGC Workers Comp AGC Health Property Auto General Liability Pollution Liability Contractors Equipment