S T A T E O F N E W Y O R K
________________________________________________________________________
6218
2009-2010 Regular Sessions
I N A S S E M B L Y
February 26, 2009
___________
Introduced by M. of A. BARRA, WALKER -- Multi-Sponsored by -- M. of A.
TOWNSEND -- read once and referred to the Committee on Education
AN ACT in relation to enacting the "Baldwin union free school district
public construction flexibility demonstration project act" to facili-
tate expedition of the Baldwin union free school district
construction, construction/renovation or alteration of school facili-
ties project
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "Baldwin union free school district public construction flexibility
3 demonstration project act".
4 S 2. Legislative intent. The legislature hereby finds and declares
5 that the Baldwin union free school district is faced with the excep-
6 tional circumstance of engaging in a $26,976,993 renovation and alter-
7 ation of school facilities project to upgrade the facility structures of
8 the Baldwin union free school district. The legislature further finds
9 that the Baldwin union free school district has requested of the legis-
10 lature statutory flexibility to engage in innovative construction meth-
11 ods which have proven to save time, money and other public resources in
12 various parts of the state while insuring proper safeguards against
13 limited competition, corruption and inadequate quality construction.
14 S 3. Definitions. For the purposes of this act the terms:
15 1. "School district" shall mean the Baldwin union free school
16 district.
17 2. "Project" shall mean the construction, construction/renovation or
18 alteration of school building facilities project approved by the voters
19 of the Baldwin union free school district on February 4, 2004, to be
20 engaged in by the school district to upgrade the facility structures of
21 the school district.
22 S 4. Notwithstanding any other provision of law to the contrary, all
23 contracts awarded or entered into by the school district for
24 construction, construction/renovation or alteration of school building
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08016-01-9
A. 6218 2
1 facilities included in the project shall be governed by section five of
2 this act.
3 S 5. 1. Pursuant to approval of the project at a referendum of the
4 school district's voters, the district may award or enter into contracts
5 for the renovation and alteration of school building facilities for the
6 school district at a total project cost not to excess $26,976,993 pursu-
7 ant to a single general contract for portions of the project. In the
8 event the school district elects to utilize a single general contract
9 for portions of the project, the school district shall require:
10 (a) that notice of the invitation for bids for contracts state the
11 time and place of the receipt and opening of bids; and
12 (b) that bidders submit to the school district prior to the opening of
13 a bid for the award of a contract pursuant to this section, a sealed
14 list identifying the names of each subcontractor each contractor
15 proposes to utilize under the contract for the performance of the
16 following subdivisions of work:
17 (i) plumbing and gas fittings;
18 (ii) steam heating, hot water heating, ventilating and air condition-
19 ing apparatus; and
20 (iii) electrical wiring and standard illuminating fixtures.
21 2. The low bidder shall specify in such list the estimated value to be
22 paid each subcontractor for the work to be performed by such subcontrac-
23 tor. After the school district has announced the low bidder at the bid
24 opening, the school district shall open any such low bidder's separate
25 sealed list and shall read aloud such subcontractors listed therein. All
26 such sealed lists except those of the low bidder shall be returned
27 unopened to their respective contractors following award of a contract.
28 3. The school district shall provide in its construction, erection or
29 alteration contracts awarded as part of the project a provision requir-
30 ing each contractor to make prompt payment to its subcontractors
31 performing each subdivision of work listed in paragraph (b) of subdivi-
32 sion one of this section. Within seven calendar days of the receipt of
33 any payment from the school district, the contractor shall pay to each
34 subcontractor that portion of the proceeds of such payment representing
35 the value of the work performed by such subcontractor, based upon the
36 actual value of the subcontract, which has been approved and paid for by
37 the school district, less an amount necessary to satisfy any claims,
38 liens or judgments against the subcontractor which have not been suit-
39 ably discharged and less any amount retained by the contractor as
40 provided in this subdivision.
41 4. For such purpose, the subcontract may provide that the contractor
42 may retain not more than five per centum of each payment to the subcon-
43 tractor or not more than ten per centum of each such payment if prior to
44 entering into the subcontract the subcontractor is unable or unwilling
45 to provide, at the request of the contractor, a performance bond and a
46 labor and material bond both in the amount of the subcontract.
47 5. At the time of making a payment to the contractor for work
48 performed by the subcontractors set forth in paragraph (b) of subdivi-
49 sion one of this section, the school district shall file in its office
50 for review a record of such payment. If any such subcontractor shall
51 notify the school district and the contractor in writing that the
52 contractor has failed to make a payment to it as provided in this
53 section and the contractor shall fail, within five calendar days after
54 receipt of such notice, to furnish either proof of such payment or
55 notice that the amount claimed by the subcontractor is in dispute, the
56 school district shall withhold from amounts then or thereafter becoming
A. 6218 3
1 due and payable to the contractor, other than from amounts becoming due
2 and payable to the contractor representing the value of work approved by
3 the school district and performed by other subcontractors and which the
4 contractor is required to pay to such subcontractors within seven calen-
5 dar days as provided in this subdivision, an amount equal to that
6 portion of the school district's prior payment to the contractor which
7 the subcontractor claims to be due it, shall remit the amount so with-
8 held to the subcontractor and deduct such payment from the amounts then
9 otherwise due and payable to the contractor, which payment shall as
10 between the contractor and the school district, be deemed a payment by
11 the school district to the contractor. In the event the contractor shall
12 notify the school district that the claim of the subcontractor is in
13 dispute, the school district shall withhold from amounts then or there-
14 after becoming due and payable to the contractor, other than from
15 amounts becoming due and payable to the contractor representing the
16 value of work approved by the school district and performed by other
17 subcontractors and which the contractor is required to pay to such
18 subcontractors within seven calendar days, an amount equal to that
19 portion of the school district's prior payment to the contractor which
20 the subcontractor claims to be due it and deposit such amount so with-
21 held in a separate interest-bearing account pending resolution of the
22 dispute, and the amount so deposited, together with the interest there-
23 on, shall be paid to the party or parties ultimately determined to be
24 entitled thereto, or until the contractor and subcontractor shall other-
25 wise agree as to the disposition thereof. In the event the school
26 district shall be required to withhold amounts from a contractor for the
27 benefit of more than one subcontractor, the amounts so withheld shall be
28 applied to or for such subcontractors in the order in which the written
29 notices of nonpayment have been received by the school district, and if
30 more than one such notice was received on the same day, proportionately
31 based upon the amount of the subcontractor claims received on such day.
32 6. Payment to a subcontractor shall not relieve the contractor from
33 responsibility for the work covered by the payment. Nothing contained in
34 this act shall be construed to create any obligation on the part of the
35 school district to pay any subcontractor, nor shall anything provided in
36 this act serve to create any relationship in contract or otherwise,
37 implied or expressed, between the subcontractor and the school district.
38 7. The provisions of this section shall not be applicable to the
39 subcontractors of a contractor whose contract is limited to the perform-
40 ance of a single subdivision of work listed in paragraph (b) of subdivi-
41 sion one of this section.
42 S 6. Nothing contained in this act shall prevent the school district
43 from commencing an interpleader action to determine entitlement to a
44 disputed payment in accordance with section 1006 of the civil practice
45 law and rules, or any successor provision thereto.
46 S 7. Nothing contained in this act shall be construed to exempt a
47 project undertaken pursuant to the provisions of this act from the
48 review and approval proceedings applied to such projects by the educa-
49 tion department when undertaken pursuant to the education law.
50 S 8. Any contract for construction, construction/renovation or alter-
51 ation of school building facilities in the school district pursuant to
52 section five of this act shall be awarded or entered into within three
53 years of the effective date of this act.
54 S 9. This act shall take effect immediately.