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

                                 9944--A

                          I N  A S S E M B L Y

                             April 26, 2012
                               ___________

Introduced by M. of A. GUNTHER, RABBITT -- read once and referred to the
  Committee  on  Governmental  Operations  -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee

AN  ACT  to  confer 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

  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.
              

                                                           LBD15391-05-2

A. 9944--A                          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

A. 9944--A                          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.