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

                                 7187--A

                            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

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 subcon-
tracts 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 damages 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., J.V. submitted a verified  statement
of claim in the sum $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,
              

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15391-02-2

S. 7187--A                          2

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).
  Payment under this act shall be made from funds  heretofore  allocated
and  encumbered  for  such  construction  work or from general funds and
shall include such amount to pay for the damages sustained by A.  Servi-
done,  Inc./B.  Anthony Construction Corp., J.V. and its subcontractors,
suppliers and materialmen, 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 purchase 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.
  (2) The costs incurred as a result of the stop work order.
  (3)  The costs incurred in the premature cessation of work, including,
but not limited to:
  a. Professional fees related to the premature ending of  the  contract
and bookkeeping expenses.
  b. Demobilization of equipment and facilities.
  c. Rental payments for field offices for the full rental period.
  d. Travel expenses of officers and employees.
  e.  Insurance  premiums to the date of cancellation that is authorized
in writing by the state and any penalty therefor.
  f. Storage and yard  expenses,  equipment,  maintenance,  warehousing,
moving  and  freight expenses to hold and/or ship materials scheduled to
be delivered to the job site.
  g. 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).
  h. 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 and  tempo-
rary crane mats.
  (4)   For   work  done  directly  by  A.  Servidone,  Inc./B.  Anthony
Construction Corp., J.V.  profit and overhead, including, but not limit-
ed to, job-site overhead and actual and projected unabsorbed home office
overhead, and anticipated profit. Included in the definition of work  is
the preparation of shop drawings, data sheets, plans and design.
  (5) For work done by a subcontractor, supplier and/or materialman, the
job-site  overhead and actual and projected unabsorbed home office over-
head of the subcontractor, supplier and/or  materialman,  but  not  less
than  ten  percent  shall  be  added to the cost of labor, equipment and
materials, and to the cost of labor, equipment and materials plus  over-
head  there  shall  be  added  the profit of the subcontractor, supplier
and/or materialman and anticipated profit of not less than  ten  percent
for  the  subcontractor's  profit. Labor and materials shall include the
cost of shop drawing, data sheets, plans  and  design.  To  this  amount
there  shall  be added sixteen percent for the overhead and profit of A.
Servidone, Inc./B. Anthony Construction Corp., J.V.
  (6) Loss of pending contract to  supply  excavated  materials  to  old
battery plant.
  S 3. This act shall take effect immediately.

                            
                    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.