Bill S7187B-2011

Confers 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

Confers 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.

Details

Actions

  • Jul 23, 2012: SIGNED CHAP.266
  • Jul 20, 2012: DELIVERED TO GOVERNOR
  • Jun 14, 2012: returned to senate
  • Jun 14, 2012: passed assembly
  • Jun 14, 2012: ordered to third reading rules cal.226
  • Jun 14, 2012: substituted for a9944a
  • Jun 13, 2012: referred to ways and means
  • Jun 13, 2012: DELIVERED TO ASSEMBLY
  • Jun 13, 2012: PASSED SENATE
  • Jun 13, 2012: ORDERED TO THIRD READING CAL.1246
  • Jun 13, 2012: COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • Jun 7, 2012: PRINT NUMBER 7187B
  • Jun 7, 2012: AMEND AND RECOMMIT TO FINANCE
  • May 11, 2012: PRINT NUMBER 7187A
  • May 11, 2012: AMEND (T) AND RECOMMIT TO FINANCE
  • May 1, 2012: REFERRED TO FINANCE

Meetings

Calendars

Votes

VOTE: COMMITTEE VOTE: - Rules - Jun 13, 2012
Ayes (23): Skelos, Alesi, Farley, Fuschillo, Hannon, Johnson, Larkin, LaValle, Libous, Marcellino, Maziarz, Nozzolio, Saland, Seward, Sampson, Breslin, Duane, Hassell-Thompson, Montgomery, Parker, Perkins, Smith, Stewart-Cousins
Ayes W/R (1): Dilan
Excused (1): Krueger

Memo

BILL NUMBER:S7187B

TITLE OF BILL: 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

PURPOSE OF BILL: This bill would authorize the New York State Comptroller to audit and pay the claims of a contractor who had done work for the State under a contract with the New York State Department of Transportation and whose contract, through no fault of the contractor, was declared invalid in State Supreme Court.

SUMMARY OF PROVISIONS: Section one states that 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 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 (NYDOT Contract No. 0261655). The contractor proceeded to perform the work so contracted in good faith and without wrongful intent and due to the decision by the State Supreme Court has been unable to collect those monies owed by virtue to the work performed prior to the decision by the Court. Under present law, a court decision invalidating a contract means that the contractor has no legal standing to sue to recover any expenses.

Section two states that the New York State Comptroller is authorized to make payments in the amounts submitted by A. Servidone, Inc. B. Anthony Construction Corp., J.V. and approved by the Department of Transportation for any amounts payable under this bill with respect to the construction project. Payment of these amounts shall be made from federal and/or state capital projects funds appropriations available to the NYS DOT and shall include such reasonable and verifiable amounts to pay for the actual and necessary costs in performing construction work.

Section three states that this act shall take effect immediately.

JUSTIFICATION: On or about October 6, 2001 the State of New York, through the New York State Department of Transportation, entered into a contract with A. Servidone, Inc./B. Anthony Construction Corp., J.V. to perform a

construction project known as the reconstruction and bridge replacement on Route 17 at Exit 122 in the Town of Wallkill. The contractor had completed close to 10% of the project when the State Supreme Court ruled the contract null and void due to no fault of the contractor. During the construction phase of the contract, under good faith and believing it had a valid contract with the State, the contractor purchased materials, completed various work on the project and entered into contracts with various subcontractors. When the Supreme Court made its ruling it left A. Servidone, Inc./B. Anthony Construction Corp., J.V. without any means to collect payment from the State for work performed. Under present law. a court decision invalidating a contract means that the contractor has no legal standing to sue to recover any expenses. This bill simply allows a contractor to collect expenses incurred on a construction job that they rightfully started under a contract with the State. The money owed to the contractor would not be a new allocation and would, come from the funds that have been already allocated by the State for the project. This bill simply allows for the fair and equitable resolution of this issue and makes sure that a New York State business, which relied on the State, is fairly compensated for expenses incurred.

PRIOR LEGISLATIVE HISTORY: Although this is a new bill, there has been legislation passed in prior years which protected contractor's claims when the contract that they have relied on in good faith has been invalidated by the courts.

FISCAL IMPLICATION: None. All money expended would come from current allocations by the State for the Exit 22 construction project.

EFFECTIVE DATE: This act shall take effect immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 7187--B IN SENATE 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,
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
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.

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