senate Bill S7187B

Signed by Governor

Confers authority on the state comptroller to verify and pay the claim of A. Servidone, Inc./B. Anthony Construction Corp., J.V. against the state of New York

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed by Governor
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actions

  • 01 / May / 2012
    • REFERRED TO FINANCE
  • 11 / May / 2012
    • AMEND (T) AND RECOMMIT TO FINANCE
  • 11 / May / 2012
    • PRINT NUMBER 7187A
  • 07 / Jun / 2012
    • AMEND AND RECOMMIT TO FINANCE
  • 07 / Jun / 2012
    • PRINT NUMBER 7187B
  • 13 / Jun / 2012
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 13 / Jun / 2012
    • ORDERED TO THIRD READING CAL.1246
  • 13 / Jun / 2012
    • PASSED SENATE
  • 13 / Jun / 2012
    • DELIVERED TO ASSEMBLY
  • 13 / Jun / 2012
    • REFERRED TO WAYS AND MEANS
  • 14 / Jun / 2012
    • SUBSTITUTED FOR A9944A
  • 14 / Jun / 2012
    • ORDERED TO THIRD READING RULES CAL.226
  • 14 / Jun / 2012
    • PASSED ASSEMBLY
  • 14 / Jun / 2012
    • RETURNED TO SENATE
  • 20 / Jul / 2012
    • DELIVERED TO GOVERNOR
  • 23 / Jul / 2012
    • SIGNED CHAP.266

Summary

Confers authority on the state comptroller to verify and pay the claim of A. Servidone, Inc./B. Anthony Construction Corp., J.V. against the state of New York with respect to construction of a project known as the reconstruction and bridge replacement on Route 17 at Exit 122 in the Town of Wallkill, Orange County, New York.

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Bill Details

See Assembly Version of this Bill:
A9944A
Versions:
S7187
S7187A
S7187B
Legislative Cycle:
2011-2012
Law Section:
Comptroller

Sponsor Memo

BILL NUMBER:S7187B

TITLE OF BILL:
An act
authorizing payment to
A. Servidone,
Inc./B. Anthony Construction Corp., J.V.
with respect to
construction of a project known as the reconstruction and bridge
replacement on Route 17 at Exit
122 in the Town of Wallkill, Orange County, New York

PURPOSE OF BILL:
This bill would authorize the New York State Comptroller to audit and
pay the claims of a contractor who had done work for the State under
a contract with the New York State Department of Transportation and
whose contract, through no fault of the contractor, was declared
invalid in State Supreme Court.

SUMMARY OF PROVISIONS:
Section one states that the Legislature finds that A. Servidone,
Inc./B. Anthony Construction Corp., J.V. was engaged and authorized
by the State, acting by and through the New York Department of
Transportation, on or about October 6, 2011, to perform a construction
project known as the reconstruction and bridge replacement on Route
17 at Exit 122 in the Town of Wallkill, Orange County, New York
(NYDOT Contract No. 0261655).
The contractor proceeded to perform the work so contracted in good
faith and without wrongful intent and due to the decision by the
State Supreme Court has been unable to collect those monies owed by
virtue to the work performed prior to the decision by the Court.
Under present law, a court decision invalidating a contract means
that the contractor has no legal standing to sue to recover any
expenses.

Section two states that the New York State Comptroller is authorized
to make payments in the amounts submitted by A. Servidone,
Inc. B. Anthony Construction Corp., J.V. and approved by the Department
of Transportation for any amounts payable under this bill with
respect to the construction project. Payment of these amounts shall
be made from federal and/or state capital projects funds
appropriations available to the NYS DOT and shall include such
reasonable and verifiable amounts to pay for the actual and necessary
costs in performing construction work.

Section three states that this act shall take effect immediately.

JUSTIFICATION:
On or about October 6, 2001 the State of New York, through the New York
State Department of Transportation, entered into a contract with A.
Servidone, Inc./B. Anthony Construction Corp., J.V. to perform a

construction project known as the reconstruction and bridge
replacement on Route 17 at Exit 122 in the Town of Wallkill. The
contractor had completed close to 10% of the project when the State
Supreme Court ruled the contract null and void due to no fault of the
contractor. During the construction phase of the contract, under good
faith and believing it had a valid contract with the State, the
contractor purchased materials, completed various work on the project
and entered into contracts with various subcontractors. When the
Supreme Court made its ruling it left A. Servidone, Inc./B. Anthony
Construction Corp., J.V. without any means to collect payment from
the State for work performed. Under present law. a court decision
invalidating a contract means that the contractor has no legal
standing to sue to recover any expenses. This bill simply allows a
contractor to collect expenses incurred on a construction job that
they rightfully started under a contract with the State. The money
owed to the contractor would not be a new allocation
and would, come from the funds that have been already allocated by
the State for the project. This bill simply allows for the fair and
equitable resolution of this issue and makes sure that a New York
State business, which relied on the State, is fairly compensated for
expenses incurred.

PRIOR LEGISLATIVE HISTORY:
Although this is a new bill, there has been legislation passed in
prior years which protected contractor's claims when the contract
that they have relied on in good faith has been invalidated by the
courts.

FISCAL IMPLICATION:
None. All money expended would come from current allocations by the
State for the Exit 22 construction project.

EFFECTIVE DATE:
This act shall take effect immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 7187--B

                            I N  S E N A T E

                               May 1, 2012
                               ___________

Introduced  by  Sens. BONACIC, LARKIN -- read twice and ordered printed,
  and when printed to be  committed  to  the  Committee  on  Finance  --
  committee  discharged,  bill amended, ordered reprinted as amended and
  recommitted to said committee -- committee discharged,  bill  amended,
  ordered reprinted as amended and recommitted to said committee

AN ACT authorizing payment to A. Servidone, Inc./B. Anthony Construction
  Corp.,  J.V.    with respect to construction of a project known as the
  reconstruction and bridge replacement on Route 17 at Exit 122  in  the
  Town of Wallkill, Orange County, New York

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The legislature finds that A.  Servidone,  Inc./B.  Anthony
Construction Corp., J.V. was engaged and authorized by the state, acting
by  and  through  the New York State Department of Transportation, on or
about October 6, 2011, to perform a construction project  known  as  the
reconstruction  and  bridge  replacement  on Route 17 at Exit 122 in the
Town of Wallkill, Orange County, New York (NYSDOT Contract No. D261655),
and having commenced performance and making  substantial  progress,  the
contractor  is  threatened  by financial loss, by reason of the Decision
and Order issued by the Supreme Court dated March 1, 2012 in  which  the
construction  contract  was found to be a nullity. A. Servidone, Inc./B.
Anthony  Construction  Corp.,  J.V.  made  purchases  and  executed  sub
contracts  and  purchase  orders  in  furtherance  of the project. It is
further found that A. Servidone,  Inc./B.  Anthony  Construction  Corp.,
J.V. undertook and executed the aforesaid work in good faith and without
wrongful intent and that by virtue of the benefits received by the state
and   the   consideration  rendered  by  A.  Servidone  Inc./B.  Anthony
Construction Corp., J.V. through its performance of such work,  a  clear
moral  obligation  has arisen on the part of the state to compensate and
pay actual, reasonable, and verifiable costs for the loss  sustained  by
A.    Servidone,  Inc./B. Anthony Construction Corp., J.V. on account of
the work performed and the work that it  was  not  able  to  perform  by
virtue  of  the Decision and Order, in the manner set forth in this act.
In this connection, A. Servidone,  Inc./B.  Anthony  Construction  Corp,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15391-04-2

S. 7187--B                          2

J.V.   submitted   a   verified   statement  of  claim  in  the  sum  of
$22,323,588.00.
  S  2.  Notwithstanding  any other provision of law, upon submission of
claims certified by A. Servidone, Inc./B.  Anthony  Construction  Corp.,
J.V.  and approved by the Department of Transportation, the Comptroller,
after audit, is authorized to make  payment  to  A.  Servidone,  Inc./B.
Anthony Corp., J.V. for any amounts payable under this bill with respect
to  the  construction  project  known  as  the reconstruction and bridge
replacement on Route 17 at Exit 122 in  the  Town  of  Wallkill,  Orange
County, New York (NYSDOT Contract No. D261655).
  Notwithstanding  any  other  provision  of law, payment under this act
shall be made from federal and/or state capital projects funds appropri-
ations available to the New York State Department of Transportation  and
shall  include  such  reasonable  and  verifiable amounts to pay for the
actual and necessary costs incurred by  A.  Servidone,  Inc./B.  Anthony
Construction Corp., J.V. and its subcontractors, suppliers and material-
men  in performing construction work, including, but not limited to, the
following:
  (1) The costs incurred in performing work,  including  work  that  was
extra  or  additional to the scope of work, and the purchase of material
and rental of equipment. This includes, but  is  not  limited  to,  work
performed and requisitioned but not paid, work performed but not paid in
full, work completed but not on a pay requisition and the initial office
set  up  cost,  but only to the extent not previously paid by the state.
Included in the definition of work is the preparation of shop  drawings,
data sheets, plans and design. The value of any work already paid for by
the state in a pay item but not fully performed shall be credited to the
state.
  (2) The costs incurred in the premature cessation of work as follows:
  a. Demobilization of equipment and facilities.
  b.  Rental  payments  due under any rental agreement for field offices
through the date that any such agreement may be terminated,  or,  if  it
cannot be terminated, through the expiration date of such agreement.
  c.  Insurance  premiums to the date of cancellation that is authorized
in writing by the state and any penalty therefor.
  d. Documented storage and yard expenses,  actual  warehousing,  moving
and  freight  expenses  to  hold  and/or  ship materials scheduled to be
delivered to the job site.
  e. Permanent materials (including steel H piles, drainage  structures,
reinforced concrete pipe, corrugated plastic pipe, miscellaneous materi-
als  for  drainage structure, epoxy coated reinforcing steel and various
other materials) not paid for and incorporated in the work  or  returned
and restocked.
  f.  Temporary  materials (including temporary concrete barrier and end
sections, glare screen, prefabricated silt dike, architectural  pattern-
ing of concrete surfaces, temporary seed and mulch tackifier).
  (3) Profit and overhead applicable to the costs defined in subdivision
one in the following amounts:
  a.   For   work   done  directly  by  A.  Servidone,  Inc./B.  Anthony
Construction Corp., J.V., profit and overhead in an  amount  of  sixteen
percent  shall  be  added  to the cost of labor and materials; provided,
however, that no overhead and profit will be paid on completed bid items
referenced in NYSDOT Contract No. D261655.
  b. For work done by  a  subcontractor,  supplier  and/or  materialman,
profit  and  overhead  in an amount of sixteen percent shall be added to
the cost of labor and materials and to this amount there shall be  added

S. 7187--B                          3

five percent for the overhead and profit of A. Servidone, Inc./B. Antho-
ny  Construction  Corp.,  J.V.;  provided, however, that no overhead and
profit will be paid on completed bid items referenced in NYSDOT Contract
No. D261655.
  Any  materials  paid for by the state and not incorporated in the work
shall be delivered to the Department of Transportation.
  S 3. This act shall take effect immediately.

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