S T A T E   O F   N E W   Y O R K
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                                  7979

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              May 25, 2011
                               ___________

Introduced by M. of A. THIELE -- read once and referred to the Committee
  on Local Governments

AN  ACT  to  enact  the  "fire  district public construction flexibility
  demonstration project  act"  to  facilitate  expedition  of  the  fire
  district renovation projects

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Short title.  This act shall be known and may be  cited  as
the "fire district public construction flexibility demonstration project
act".
  S 2. Definitions. For the purposes of this act the terms:
  1. "Fire district" shall mean any fire district in New York state.
  2.  "Project"  shall mean the building projects approved by the voters
of a fire district  to  reconstruct  various  fire  district  buildings,
including  infrastructure  improvements necessary to meet the district's
needs and  site  work,  and  acquire  original  furnishings,  equipment,
machinery or apparatus within the fire district.
  S  3.  Notwithstanding any other provision of law to the contrary, all
contracts awarded or entered into by the fire  district  for  design  or
construction  of  fire building facilities included in the project shall
be governed by section four of this act  and  not  section  101  of  the
general municipal law.
  S  4.  1.  The fire district may award or enter into contracts for the
design or construction, of fire building facilities for  the  respective
fire  district  pursuant  to a single general contract. In the event the
fire district elects to utilize a  single  general  contract,  the  fire
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 fire district prior to the opening of a
bid for the award of a contract pursuant to this section, a sealed  list

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11742-01-1
              

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identifying  the names of each subcontractor each contractor proposes to
utilize under the contract for the performance of the following subdivi-
sions 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 fire district has announced the low  bidder  at  the  bid
opening,  the  fire  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  fire  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 fire 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 fire  district,
less  an  amount  necessary  to  satisfy  any claims, liens or judgments
against the subcontractor which have not been  suitably  discharged  and
less  any amount retained by the contractor as provided in this subdivi-
sion.
  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 fire district shall file in its office for
review a record of such payment. If any such subcontractor shall  notify
the  fire 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 fire district
shall withhold from amounts then or thereafter 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  fire
district  and performed by other subcontractors and which the contractor
is required to pay to such subcontractor within seven calendar  days  as
provided  in  this  subdivision,  an amount equal to that portion of the
fire district's prior payment to the contractor which the  subcontractor
claims  to  be due it, shall remit the amount so withheld to the subcon-
tractor and deduct such payment from the amounts then otherwise due  and
payable to the contractor, which payment shall as between the contractor
and  the  fire district, be deemed a payment by the fire district to the
contractor. In the event the contractor shall notify the  fire  district
that  the  claim  of  the subcontractor is in dispute, the fire district
shall withhold from amounts then or thereafter becoming due and  payable

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to  the  contractor, other than from amounts becoming due and payable to
the contractor representing the value  of  work  approved  by  the  fire
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 fire district's prior payment to the
contractor  which the subcontractor claims to be due it and deposit such
amount so withheld in a separate interest-bearing account pending resol-
ution of the dispute, and the amount  so  deposited  together  with  the
interest thereon shall be paid to the party or parties ultimately deter-
mined  to be entitled thereto, or until the contractor and subcontractor
shall otherwise agree as to the disposition thereof. In  the  event  the
fire  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 fire district,
and if more than one such notice was received on the same  day,  propor-
tionately  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
fire 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 fire 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  5.  Nothing  contained  in this act shall prevent the fire 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 6. This act shall take effect immediately.