S T A T E   O F   N E W   Y O R K
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                                  5652

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 24, 2011
                               ___________

Introduced  by  M.  of  A.  J. 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.
                                                           LBD08224-01-1
              

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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

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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.