S T A T E O F N E W Y O R K
________________________________________________________________________
8987
2009-2010 Regular Sessions
I N A S S E M B L Y
June 17, 2009
___________
Introduced by M. of A. MILLER -- read once and referred to the Committee
on Education
AN ACT to enact the "Spackenkill union free school district public
construction flexibility demonstration project act" to facilitate
expedition of the Spackenkill union free school district renovation
project
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. This act shall be known and may be cited as the "Spacken-
kill union free school district public construction flexibility demon-
stration project act".
S 2. Legislative intent. The legislature hereby finds and declares
that the Spackenkill union free school district is faced with the excep-
tional circumstance of engaging in a 13,934,000 dollar building project
within the Spackenkill union free school district. The legislature
further finds that the Spackenkill union free school district has
requested of the legislature statutory flexibility to engage in innova-
tive construction methods which have proven to save time, money and
other public resources in various parts of the state while insuring
proper safeguards against limited competition, corruption and inadequate
quality construction.
S 3. Definitions. For the purposes of this act the terms:
1. "School district" shall mean the Spackenkill union free school
district.
2. "Project" shall mean the building projects approved by the voters
on February 17, 2009 to be engaged in by the Spackenkill union free
school district to renovate and expand the high school within the school
district.
S 4. Notwithstanding any other provision of law to the contrary, all
contracts awarded or entered into by the school district for design or
construction of school building facilities included in the project shall
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10570-01-9
A. 8987 2
be governed by section five of this act and not section 101 of the
general municipal law.
S 5. 1. The school district may award or enter into contracts for the
design or construction, of school building facilities for the Spacken-
kill union free school district at a total project cost not to exceed
13,934,000 dollars pursuant to a single general contract. In the event
the school district elects to utilize a single general contract, the
school district shall require:
(a) that notice of the invitation for bids for contracts state the
time and place of the receipt and opening of bids; and
(b) that bidders submit to the school district prior to the opening of
a bid for the award of a contract pursuant to this section, a sealed
list identifying the names of each subcontractor each contractor
proposes to utilize under the contract for the performance of the
following subdivisions of work:
(i) plumbing and gas fittings;
(ii) steam heating, hot water heating, ventilating and air condition-
ing apparatus; and
(iii) electrical wiring and standard illuminating fixtures.
2. The low bidder shall specify in such list the estimated value to be
paid each subcontractor for the work to be performed by such subcontrac-
tor. After the school district has announced the low bidder at the bid
opening, the school district shall open any such low bidder's separate
sealed list and shall read aloud such subcontractors listed therein. All
such sealed lists except those of the low bidder shall be returned
unopened to their respective contractors following award of a contract.
3. The school district shall provide in its construction or erection
contracts awarded as part of the project a provision requiring each
contractor to make prompt payment to its subcontractors performing each
subdivision of work listed in paragraph (b) of subdivision one of this
section. Within seven calendar days of the receipt of any payment from
the school district, the contractor shall pay to each subcontractor that
portion of the proceeds of such payment representing the value of the
work performed by such subcontractor, based upon the actual value of the
subcontract, which has been approved and paid for by the school
district, less an amount necessary to satisfy any claims, liens or judg-
ments against the subcontractor which have not been suitably discharged
and less any amount retained by the contractor as provided in this
subdivision.
4. For such purpose, the subcontract may provide that the contractor
may retain not more than five per centum of each payment to the subcon-
tractor or not more than ten per centum of each such payment if prior to
entering into the subcontract the subcontractor is unable or unwilling
to provide, at the request of the contractor, a performance bond and a
labor and material bond both in the amount of the subcontract.
5. At the time of making a payment to the contractor for work
performed by the subcontractors set forth in paragraph (b) of subdivi-
sion one of this section, the school district shall file in its office
for review a record of such payment. If any such subcontractor shall
notify the school district and the contractor in writing that the
contractor has failed to make a payment to it as provided in this
section and the contractor shall fail, within five calendar days after
receipt of such notice, to furnish either proof of such payment or
notice that the amount claimed by the subcontractor is in dispute, the
school district shall withhold from amounts then or thereafter becoming
due and payable to the contractor, other than from amounts becoming due
A. 8987 3
and payable to the contractor representing the value of work approved by
the school district and performed by other subcontractors and which the
contractor is required to pay to such subcontractors within seven calen-
dar days as provided in this subdivision, an amount equal to that
portion of the school district's prior payment to the contractor which
the subcontractor claims to be due it, shall remit the amount so with-
held to the subcontractor and deduct such payment from the amounts then
otherwise due and payable to the contractor, which payment shall as
between the contractor and the school district, be deemed a payment by
the school district to the contractor. In the event the contractor shall
notify the school district that the claim of the subcontractor is in
dispute, the school district shall withhold from amounts then or there-
after becoming due and payable to the contractor, other than from
amounts becoming due and payable to the contractor representing the
value of work approved by the school district and performed by other
subcontractors and which the contractor is required to pay to such
subcontractors within seven calendar days, an amount equal to that
portion of the school district's prior payment to the contractor which
the subcontractor claims to be due it and deposit such amount so with-
held in a separate interest-bearing account pending resolution of the
dispute, and the amount so deposited together with the interest thereon
shall be paid to the party or parties ultimately determined to be enti-
tled thereto, or until the contractor and subcontractor shall otherwise
agree as to the disposition thereof. In the event the school district
shall be required to withhold amounts from a contractor for the benefit
of more than one subcontractor, the amounts so withheld shall be applied
to or for such subcontractors in the order in which the written notices
of nonpayment have been received by the school district, and if more
than one such notice was received on the same day, proportionately based
upon the amount of the subcontractor claims received on such day.
6. Payment to a subcontractor shall not relieve the contractor from
responsibility for the work covered by the payment. Nothing contained in
this act shall be construed to create any obligation on the part of the
school district to pay any subcontractor, nor shall anything provided in
this act serve to create any relationship in contract or otherwise,
implied or expressed, between the subcontractor and the school district.
7. The provisions of this section shall not be applicable to the
subcontractors of a contractor whose contract is limited to the perform-
ance of a single subdivision of work listed in paragraph (b) of subdivi-
sion one of this section.
S 6. Nothing contained in this act shall prevent the school district
from commencing an interpleader action to determine entitlement to a
disputed payment in accordance with section 1006 of the civil practice
law and rules, or any successor provision thereto.
S 7. Nothing contained in this act shall be construed to exempt a
school construction project undertaken pursuant to the provisions of
this act from the review and approval proceedings applied to such
projects by the education department when undertaken pursuant to the
education law.
S 8. This act shall take effect immediately.