NY State Assembly Bill 2013-A725A

Assembly Bill A725A

2013-2014 Legislative Session

Prohibits the retention of any amount of payment due and owing for materials delivered and accepted for a public or private construction project

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Archive: Last Bill Status - On Floor Calendar

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 19, 2014	ordered to third reading rules cal.433 rules report cal.433
Jun 18, 2014	reported reported referred to rules
Jun 09, 2014	print number 725a
Jun 09, 2014	amend and recommit to ways and means
Jun 03, 2014	reported referred to ways and means
Jan 08, 2014	referred to governmental operations
Jan 09, 2013	referred to governmental operations

Bill Amendments

Original

A (Active)

co-Sponsors

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multi-Sponsors

2013-A725 - Details

See Senate Version of this Bill:: S980
Law Section:: State Finance Law
Laws Affected:: Amd §139-f, St Fin L; amd §106-b, Gen Muni L; amd §756-c, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2011-2012: A8473, S6158
2015-2016: A796, A10275, S2931, S7652
2017-2018: A358, S4467
2019-2020: A574, S5498
2021-2022: A494, S1387
2023-2024: A1194, S6855

2013-A725 - Summary

Prohibits the retention of any amount of payment due and owing for materials delivered for a public or private construction project.

2013-A725 - Bill Text download pdf

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

                                   725

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  M. of A. BRAUNSTEIN, TENNEY -- read once and referred to
  the Committee on Governmental Operations

AN ACT to amend the state finance law and the general municipal law,  in
  relation  to requiring full payment for delivered and accepted materi-
  als pertaining to public work projects; and to amend the general busi-
  ness law, in relation to prohibiting the retention of any payment  due
  and owing a material supplier for a construction project

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

  Section 1. Subdivisions 1 and 2 of section 139-f of the state  finance
law,  subdivision  1  as  added  by  chapter 769 of the laws of 1978 and
subdivision 2 as amended by section 16 of part MM of chapter 57  of  the
laws of 2008, are amended to read as follows:
  1. Payment by public owners to contractors. The contractor shall peri-
odically,  in  accordance  with the terms of the contract, submit to the
public owner and/or [his] ITS agent a requisition for a progress payment
for the work performed and/or materials furnished to  the  date  of  the
requisition,  less  any  amount  previously  paid to the contractor. The
public owner shall in accordance with the terms of the contract  approve
and promptly pay the requisition for the progress payment less an amount
necessary to satisfy any claims, liens or judgments against the contrac-
tor which have not been suitably discharged and less any retained amount
as hereafter described. The public owner shall retain not more than five
per centum of each progress payment, NOT INCLUDING ANY PAYMENT FOR MATE-
RIALS  PERTINENT  TO THE PROJECT WHICH HAVE BEEN DELIVERED AND ACCEPTED,
to the contractor except that the public owner may retain in  excess  of
five  per  centum  but  not  more  than  ten per centum of each progress
payment, NOT INCLUDING  ANY  PAYMENT  FOR  MATERIALS  PERTINENT  TO  THE
PROJECT  WHICH  HAVE  BEEN  DELIVERED  AND  ACCEPTED,  to the contractor
provided that there are no requirements by  the  public  owner  for  the

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

                                                           LBD04256-01-3

A. 725                              2

contractor  to  provide a performance bond and a labor and material bond
both in the full amount of the contract. The public owner shall  pay  IN
FULL,  upon requisition from the contractor, for ALL materials pertinent
to  the project which have been delivered to the site or off-site by the
contractor and/or subcontractor  and  suitably  stored  and  secured  as
required  by  the  public owner and the contractor [provided, the public
owner may limit such payment  to  materials  in  short  and/or  critical
supply  and  materials  specially  fabricated  for  the  project each as
defined in the contract]. When the work or  major  portions  thereof  as
contemplated  by  the terms of the contract are substantially completed,
the contractor shall submit to the public owner and/or [his] ITS agent a
requisition for payment of the remaining amount of the contract balance.
Upon receipt of such requisition the  public  owner  shall  approve  and
promptly pay the remaining amount of the contract balance less two times
the value of any remaining items to be completed and an amount necessary
to  satisfy  any claims, liens or judgments against the contractor which
have not been suitably discharged. As the remaining items  of  work  are
satisfactorily  completed  or corrected, the public owner shall promptly
pay, upon receipt of a requisition, for these remaining  items  less  an
amount  necessary  to satisfy any claims, liens or judgments against the
contractor which have not been suitably discharged.  Any  claims,  liens
and  judgments  referred to in this section shall pertain to the project
and shall be filed in  accordance  with  the  terms  of  the  applicable
contract and/or applicable laws.
  2.  Payment  by  contractors  to subcontractors. Within seven calendar
days of the receipt of any payment from the public owner, the contractor
shall pay each of [his] ITS subcontractors and materialmen the  proceeds
from  the  payment  representing  the value of the work performed and/or
materials furnished by the subcontractor and/or materialman and reflect-
ing  the  percentage  of  the  subcontractor's  work  completed  or  the
materialman's material supplied in the requisition approved by the owner
and  based  upon  the  actual value of the subcontract or purchase order
less an amount necessary to  satisfy  any  claims,  liens  or  judgments
against  the  subcontractor  or materialman which have not been suitably
discharged and, WITH REGARD TO SUBCONTRACTORS, less any retained  amount
as hereafter described. Failure by the contractor to pay any subcontrac-
tor  or  materialman  within  seven  calendar days of the receipt of any
payment from the public owner  shall  result  in  the  commencement  and
accrual  of interest on amounts due to such subcontractor or materialman
for the period beginning on the day immediately following the expiration
of such seven calendar day period  and  ending  on  the  date  on  which
payment  is made by the contractor to such subcontractor or materialman.
Such interest payment shall be the sole responsibility of  the  contrac-
tor,  and  shall  be  paid at the rate of interest in effect on the date
payment is made by the contractor.  Notwithstanding any other  provision
of  law  to  the contrary, interest shall be computed at the rate estab-
lished in paragraph (b) of subdivision  one  of  section  seven  hundred
fifty-six-b of the general business law. The contractor shall retain not
more  than  five per centum of each payment to the subcontractor [and/or
materialman] except that the contractor may retain in excess of five per
centum but not more than ten per centum of each payment to  the  subcon-
tractor  provided  that  prior  to  entering into a subcontract with the
contractor, the subcontractor  is  unable  or  unwilling  to  provide  a
performance  bond and a labor and material bond, both in the full amount
of the subcontract, at the request of the contractor.    THE  CONTRACTOR
SHALL  PAY  IN FULL, UPON PAYMENT BY THE PUBLIC OWNER, FOR ALL MATERIALS

A. 725                              3

PERTINENT TO THE PROJECT WHICH HAVE BEEN DELIVERED TO  AND  ACCEPTED  AT
THE  SITE  OR  OFF-SITE  BY A MATERIALMAN. However, the contractor shall
retain nothing  from  those  payments  representing  proceeds  owed  the
subcontractor and/or materialman from the public owner's payments to the
contractor for the remaining amounts of the contract balance as provided
in  subdivision  one  of  this  section. If the contractor has failed to
submit a requisition  for  payment  of  the  remaining  amounts  of  the
contract  balance  within  ninety  days  of  substantial  completion  as
provided in subdivision one of this section,  then  any  clause  in  the
subcontract  between the contractor and the subcontractor or materialman
which states that payment by the contractor  to  such  subcontractor  or
materialman  is  contingent  upon payment by the owner to the contractor
shall be deemed invalid. Within seven calendar days of  the  receipt  of
payment  from the contractor, the subcontractor and/or materialman shall
pay each of [his] ITS subcontractors and materialmen in the same  manner
as  the  contractor  has  paid  the subcontractor, including interest as
herein provided above. Nothing provided herein shall  create  any  obli-
gation  on  the part of the public owner to pay or to see to the payment
of any moneys to any subcontractor or materialman  from  any  contractor
nor  shall  anything provided herein serve to create any relationship in
contract or otherwise, implied or expressed, between  the  subcontractor
or materialman and the public owner.
  S 2. Paragraph (a) of subdivision 1 and subdivision 2 of section 106-b
of  the general municipal law, paragraph (a) of subdivision 1 as amended
by chapter 98 of the laws of  1995  and  subdivision  2  as  amended  by
section  15 of part MM of chapter 57 of the laws of 2008, are amended to
read as follows:
  (a) The contractor shall periodically, in accordance with the terms of
the contract, submit to the public owner and/or [his] ITS agent a requi-
sition for a progress payment for the work  performed  and/or  materials
furnished to the date of the requisition less any amount previously paid
to  the  contractor. The public owner shall in accordance with the terms
of the contract  approve  and  promptly  pay  the  requisition  for  the
progress  payment  less an amount necessary to satisfy any claims, liens
or judgments  against  the  contractor  which  have  not  been  suitably
discharged  and  less  any  retained  amount as hereafter described. The
public owner shall retain not more than five per centum of each progress
payment, NOT INCLUDING  ANY  PAYMENT  FOR  MATERIALS  PERTINENT  TO  THE
PROJECT WHICH HAVE BEEN DELIVERED AND ACCEPTED, to the contractor except
that  the  public  owner may retain in excess of five per centum but not
more than ten per centum of each progress  payment,  NOT  INCLUDING  ANY
PAYMENT FOR MATERIALS PERTINENT TO THE PROJECT WHICH HAVE BEEN DELIVERED
AND  ACCEPTED, to the contractor provided that there are no requirements
by the public owner for the contractor to provide a performance bond and
a labor and material bond both in the full amount of the  contract.  The
public  owner  shall  pay IN FULL, upon requisition from the contractor,
for ALL materials pertinent to the project which have been delivered  to
the site or off-site by the contractor and/or subcontractor and suitably
stored  and  secured  as required by the public owner and the contractor
[provided, the public owner may limit such payment to materials in short
and/or critical  supply  and  materials  specially  fabricated  for  the
project  each  as  defined  in  the  contract].  When  the work or major
portions thereof as contemplated  by  the  terms  of  the  contract  are
substantially completed, the contractor shall submit to the public owner
and/or [his] ITS agent a requisition for payment of the remaining amount
of  the  contract balance.   Upon receipt of such requisition the public

A. 725                              4

owner shall approve  and  promptly  pay  the  remaining  amount  of  the
contract  balance  less two times the value of any remaining items to be
completed and an amount necessary to satisfy any claims, liens or  judg-
ments against the contractor which have not been suitably discharged. As
the  remaining  items of work are satisfactorily completed or corrected,
the public owner shall promptly pay, upon receipt of a requisition,  for
these  items  less  an  amount necessary to satisfy any claims, liens or
judgments  against  the  contractor  which  have   not   been   suitably
discharged.  Any claims, liens and judgments referred to in this section
shall pertain to the project and shall be filed in accordance  with  the
terms  of  the  applicable  contract  and/or  applicable laws. Where the
public owner is other than the city of New York, the term "promptly pay"
shall mean payment within thirty  days,  excluding  legal  holidays,  of
receipt  of the requisition unless such requisition is not approvable in
accordance with the terms of the contract. Notwithstanding  the  forego-
ing,  where the public owner is other than the city of New York and is a
municipal corporation which requires  an  elected  official  to  approve
progress  payments,  "promptly pay" shall mean payment within forty-five
days, excluding legal holidays, of receipt  of  the  requisition  unless
such  requisition  is not approvable in accordance with the terms of the
contract.
  2. Payment by contractors to  subcontractors.  Within  seven  calendar
days of the receipt of any payment from the public owner, the contractor
shall  pay each of [his] ITS subcontractors and materialmen the proceeds
from the payment representing the value of  the  work  performed  and/or
materials furnished by the subcontractor and/or materialman and reflect-
ing  the  percentage  of  the  subcontractor's  work  completed  or  the
materialman's material supplied in the requisition approved by the owner
and based upon the actual value of the  subcontract  or  purchase  order
less  an  amount  necessary  to  satisfy  any claims, liens or judgments
against the subcontractor or materialman which have  not  been  suitably
discharged  and, WITH REGARD TO SUBCONTRACTORS, less any retained amount
as hereafter described. Failure by the contractor to make  any  payment,
including  any  remaining amounts of the contract balance as hereinafter
described, to any subcontractor or  materialman  within  seven  calendar
days of the receipt of any payment from the public owner shall result in
the  commencement and accrual of interest on amounts due to such subcon-
tractor or materialman for the period beginning on the  day  immediately
following the expiration of such seven calendar day period and ending on
the  date on which payment is made by the contractor to such subcontrac-
tor or materialman. Such interest shall be the  sole  responsibility  of
the  contractor,  and shall be paid at the rate of interest in effect on
the date payment is made by the contractor.  Notwithstanding  any  other
provision of law to the contrary, interest shall be computed at the rate
established in paragraph (b) of subdivision one of section seven hundred
fifty-six-b of the general business law. The contractor shall retain not
more  than  five per centum of each payment to the subcontractor [and/or
materialman] except that the contractor may retain in excess of five per
centum but not more than ten per centum of each payment to  the  subcon-
tractor  provided  that  prior  to  entering into a subcontract with the
contractor, the subcontractor  is  unable  or  unwilling  to  provide  a
performance  bond  and a labor and material bond both in the full amount
of the subcontract at the request  of  the  contractor.  THE  CONTRACTOR
SHALL  PAY  IN FULL, UPON PAYMENT BY THE PUBLIC OWNER, FOR ALL MATERIALS
PERTINENT TO THE PROJECT WHICH HAVE BEEN DELIVERED TO  AND  ACCEPTED  AT
THE  SITE  OR  OFF-SITE  BY A MATERIALMAN. However, the contractor shall

A. 725                              5

retain nothing  from  those  payments  representing  proceeds  owed  the
subcontractor and/or materialman from the public owner's payments to the
contractor for the remaining amounts of the contract balance as provided
in  subdivision  one  of  this  section. If the contractor has failed to
submit a requisition  for  payment  of  the  remaining  amounts  of  the
contract  balance  within  ninety  days  of  substantial  completion  as
provided in subdivision one of this section,  then  any  clause  in  the
subcontract  between the contractor and the subcontractor or materialman
which states that payment by the contractor  to  such  subcontractor  or
materialman  is  contingent  upon payment by the owner to the contractor
shall be deemed invalid. Within seven calendar days of  the  receipt  of
payment  from the contractor, the subcontractor and/or materialman shall
pay each of [his] ITS subcontractors and materialmen in the same  manner
as  the  contractor  has  paid  the subcontractor, including interest as
herein provided above.  Nothing provided herein shall create  any  obli-
gation  on  the part of the public owner to pay or to see to the payment
of any moneys to any subcontractor or materialman  from  any  contractor
nor  shall  anything provided herein serve to create any relationship in
contract or otherwise, implied or expressed, between  the  subcontractor
or materialman and the public owner.
  S  3.  Section  756-c of the general business law, as added by chapter
127 of the laws of 2002, is amended to read as follows:
  S 756-c. Retention. 1. By mutual agreement of the relevant parties  an
owner may retain a reasonable amount of the contract sum as retainage. A
contractor  or  subcontractor  may  also  retain a reasonable amount for
retainage so long as the amount does not exceed  the  actual  percentage
retained  by  the owner. Retainage shall be released by the owner to the
contractor no later than thirty days after the  final  approval  of  the
work  under a construction contract. In the event that an owner fails to
release retainage as required by this  article,  or  the  contractor  or
subcontractor  fails  to  release a proportionate amount of retainage to
the relevant parties after receipt of  retainage  from  the  owner,  the
owner,  contractor,  or  subcontractor,  as  the  case  may be, shall be
subject to the payment of interest at the rate of one percent per  month
on the date retention was due and owing.
  2.  NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION,
NO PORTION OF ANY PAYMENT DUE AND OWING TO A MATERIAL SUPPLIER FOR MATE-
RIALS WHICH HAVE BEEN DELIVERED AND ACCEPTED SHALL  BE  RETAINED  BY  AN
OWNER, CONTRACTOR OR SUBCONTRACTOR.
  S  4.  This  act shall take effect on the thirtieth day after it shall
have become a law and shall apply to materials delivered and accepted on
or after such date.

co-Sponsors

View additional co-sponsors

multi-Sponsors

2013-A725A (ACTIVE) - Details

See Senate Version of this Bill:: S980
Law Section:: State Finance Law
Laws Affected:: Amd §139-f, St Fin L; amd §106-b, Gen Muni L; amd §756-c, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2011-2012: A8473, S6158
2015-2016: A796, A10275, S2931, S7652
2017-2018: A358, S4467
2019-2020: A574, S5498
2021-2022: A494, S1387
2023-2024: A1194, S6855

2013-A725A (ACTIVE) - Summary

Prohibits the retention of any amount of payment due and owing for materials delivered for a public or private construction project.

2013-A725A (ACTIVE) - Bill Text download pdf

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

                                 725--A

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  M.  of A. BRAUNSTEIN, TENNEY, NOJAY, SCHIMEL, MONTESANO,
  HEVESI, RUSSELL -- Multi-Sponsored by -- M. of A. STECK --  read  once
  and  referred to the Committee on Governmental Operations -- recommit-
  ted to the Committee on Governmental  Operations  in  accordance  with
  Assembly  Rule  3, sec. 2 -- reported and referred to the Committee on
  Ways  and  Means  --  committee  discharged,  bill  amended,   ordered
  reprinted as amended and recommitted to said committee

AN  ACT to amend the state finance law and the general municipal law, in
  relation to requiring full payment for delivered and accepted  materi-
  als pertaining to public work projects; and to amend the general busi-
  ness  law, in relation to prohibiting the retention of any payment due
  and owing a material supplier for a construction project

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

  Section  1. Subdivisions 1 and 2 of section 139-f of the state finance
law, subdivision 1 as added by chapter 769  of  the  laws  of  1978  and
subdivision  2  as amended by section 16 of part MM of chapter 57 of the
laws of 2008, are amended to read as follows:
  1. Payment by public owners to contractors. The contractor shall peri-
odically, in accordance with the terms of the contract,  submit  to  the
public owner and/or [his] ITS agent a requisition for a progress payment
for  the  work  performed  and/or materials furnished to the date of the
requisition, less any amount previously  paid  to  the  contractor.  The
public  owner shall in accordance with the terms of the contract approve
and promptly pay the requisition for the progress payment less an amount
necessary to satisfy any claims, liens or judgments against the contrac-
tor which have not been suitably discharged and less any retained amount
as hereafter described. The public owner shall retain not more than five
per centum of each progress payment, NOT INCLUDING ANY PAYMENT FOR MATE-
RIALS PERTINENT TO THE PROJECT WHICH HAVE BEEN DELIVERED,  ACCEPTED  AND

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

                                                           LBD04256-02-4

A. 725--A                           2

ARE  COVERED  BY  A  MANUFACTURER'S  WARRANTY, AND/OR ARE GRADED TO MEET
INDUSTRY STANDARDS, to the contractor except that the public  owner  may
retain  in excess of five per centum but not more than ten per centum of
each progress payment, NOT INCLUDING ANY PAYMENT FOR MATERIALS PERTINENT
TO  THE PROJECT WHICH HAVE BEEN DELIVERED, ACCEPTED AND ARE COVERED BY A
MANUFACTURER'S WARRANTY, AND/OR ARE GRADED TO MEET  INDUSTRY  STANDARDS,
to  the contractor provided that there are no requirements by the public
owner for the contractor to provide a performance bond and a  labor  and
material  bond both in the full amount of the contract. The public owner
shall pay IN FULL, upon requisition from the contractor, for ALL materi-
als pertinent to the project which have been delivered to  the  site  or
off-site  by the contractor and/or subcontractor and suitably stored and
secured as required by the public owner and  the  contractor  [provided,
the  public  owner  may  limit such payment to materials in short and/or
critical supply and materials specially fabricated for the project  each
as  defined in the contract]. When the work or major portions thereof as
contemplated by the terms of the contract are  substantially  completed,
the contractor shall submit to the public owner and/or [his] ITS agent a
requisition for payment of the remaining amount of the contract balance.
Upon  receipt  of  such  requisition  the public owner shall approve and
promptly pay the remaining amount of the contract balance less two times
the value of any remaining items to be completed and an amount necessary
to satisfy any claims, liens or judgments against the  contractor  which
have  not  been  suitably discharged. As the remaining items of work are
satisfactorily completed or corrected, the public owner  shall  promptly
pay,  upon  receipt  of a requisition, for these remaining items less an
amount necessary to satisfy any claims, liens or judgments  against  the
contractor  which  have  not been suitably discharged. Any claims, liens
and judgments referred to in this section shall pertain to  the  project
and  shall  be  filed  in  accordance  with  the terms of the applicable
contract and/or applicable laws.
  2. Payment by contractors to  subcontractors.  Within  seven  calendar
days of the receipt of any payment from the public owner, the contractor
shall  pay each of [his] ITS subcontractors and materialmen the proceeds
from the payment representing the value of  the  work  performed  and/or
materials furnished by the subcontractor and/or materialman and reflect-
ing  the  percentage  of  the  subcontractor's  work  completed  or  the
materialman's material supplied in the requisition approved by the owner
and based upon the actual value of the  subcontract  or  purchase  order
less  an  amount  necessary  to  satisfy  any claims, liens or judgments
against the subcontractor or materialman which have  not  been  suitably
discharged  and, WITH REGARD TO SUBCONTRACTORS, less any retained amount
as hereafter described. Failure by the contractor to pay any subcontrac-
tor or materialman within seven calendar days  of  the  receipt  of  any
payment  from  the  public  owner  shall  result in the commencement and
accrual of interest on amounts due to such subcontractor or  materialman
for the period beginning on the day immediately following the expiration
of  such  seven  calendar  day  period  and  ending on the date on which
payment is made by the contractor to such subcontractor or  materialman.
Such  interest  payment shall be the sole responsibility of the contrac-
tor, and shall be paid at the rate of interest in  effect  on  the  date
payment  is made by the contractor.  Notwithstanding any other provision
of law to the contrary, interest shall be computed at  the  rate  estab-
lished  in  paragraph  (b)  of  subdivision one of section seven hundred
fifty-six-b of the general business law. The contractor shall retain not
more than five per centum of each payment to the  subcontractor  [and/or

A. 725--A                           3

materialman] except that the contractor may retain in excess of five per
centum  but  not more than ten per centum of each payment to the subcon-
tractor provided that prior to entering  into  a  subcontract  with  the
contractor,  the  subcontractor  is  unable  or  unwilling  to provide a
performance bond and a labor and material bond, both in the full  amount
of  the  subcontract,  at the request of the contractor.  THE CONTRACTOR
SHALL PAY IN FULL, UPON PAYMENT BY THE PUBLIC OWNER, FOR  ALL  MATERIALS
PERTINENT  TO  THE  PROJECT WHICH HAVE BEEN DELIVERED TO AND ACCEPTED AT
THE SITE OR OFF-SITE BY A MATERIALMAN AND ARE COVERED BY  A  MANUFACTUR-
ER'S  WARRANTY,  AND/OR  ARE GRADED TO MEET INDUSTRY STANDARDS. However,
EXCEPT IN THE CASE OF A MATERIALMAN WHO IS ALSO CONTRACTED TO INSTALL  A
PRODUCT HE/SHE DELIVERED, the contractor shall retain nothing from those
payments representing proceeds owed the subcontractor and/or materialman
from  the  public  owner's  payments to the contractor for the remaining
amounts of the contract balance as provided in subdivision one  of  this
section.  If  the  contractor  has  failed  to  submit a requisition for
payment of the remaining amounts of the contract balance  within  ninety
days  of  substantial  completion as provided in subdivision one of this
section, then any clause in the subcontract between the  contractor  and
the  subcontractor  or  materialman  which  states  that  payment by the
contractor to such  subcontractor  or  materialman  is  contingent  upon
payment  by  the owner to the contractor shall be deemed invalid. Within
seven calendar days of the receipt of payment from the  contractor,  the
subcontractor and/or materialman shall pay each of [his] ITS subcontrac-
tors  and  materialmen in the same manner as the contractor has paid the
subcontractor, including interest  as  herein  provided  above.  Nothing
provided  herein  shall  create any obligation on the part of the public
owner to pay or to see to the payment of any moneys to any subcontractor
or materialman from any contractor nor shall  anything  provided  herein
serve  to  create  any relationship in contract or otherwise, implied or
expressed, between the  subcontractor  or  materialman  and  the  public
owner.
  S 2. Paragraph (a) of subdivision 1 and subdivision 2 of section 106-b
of  the general municipal law, paragraph (a) of subdivision 1 as amended
by chapter 98 of the laws of  1995  and  subdivision  2  as  amended  by
section  15 of part MM of chapter 57 of the laws of 2008, are amended to
read as follows:
  (a) The contractor shall periodically, in accordance with the terms of
the contract, submit to the public owner and/or [his] ITS agent a requi-
sition for a progress payment for the work  performed  and/or  materials
furnished to the date of the requisition less any amount previously paid
to  the  contractor. The public owner shall in accordance with the terms
of the contract  approve  and  promptly  pay  the  requisition  for  the
progress  payment  less an amount necessary to satisfy any claims, liens
or judgments  against  the  contractor  which  have  not  been  suitably
discharged  and  less  any  retained  amount as hereafter described. The
public owner shall retain not more than five per centum of each progress
payment, NOT INCLUDING  ANY  PAYMENT  FOR  MATERIALS  PERTINENT  TO  THE
PROJECT  WHICH  HAVE  BEEN  DELIVERED,  ACCEPTED  AND  ARE  COVERED BY A
MANUFACTURER'S WARRANTY, AND/OR ARE GRADED TO MEET  INDUSTRY  STANDARDS,
to  the  contractor except that the public owner may retain in excess of
five per centum but not more  than  ten  per  centum  of  each  progress
payment,  NOT  INCLUDING  ANY  PAYMENT  FOR  MATERIALS  PERTINENT TO THE
PROJECT WHICH HAVE  BEEN  DELIVERED,  ACCEPTED  AND  ARE  COVERED  BY  A
MANUFACTURER'S  WARRANTY,  AND/OR ARE GRADED TO MEET INDUSTRY STANDARDS,
to the contractor provided that there are no requirements by the  public

A. 725--A                           4

owner  for  the contractor to provide a performance bond and a labor and
material bond both in the full amount of the contract. The public  owner
shall pay IN FULL, upon requisition from the contractor, for ALL materi-
als  pertinent  to  the project which have been delivered to the site or
off-site by the contractor and/or subcontractor and suitably stored  and
secured  as  required  by the public owner and the contractor [provided,
the public owner may limit such payment to  materials  in  short  and/or
critical  supply and materials specially fabricated for the project each
as defined in the contract]. When the work or major portions thereof  as
contemplated  by  the terms of the contract are substantially completed,
the contractor shall submit to the public owner and/or [his] ITS agent a
requisition for payment of the remaining amount of the contract balance.
Upon receipt of such requisition the  public  owner  shall  approve  and
promptly pay the remaining amount of the contract balance less two times
the value of any remaining items to be completed and an amount necessary
to  satisfy  any claims, liens or judgments against the contractor which
have not been suitably discharged. As the remaining items  of  work  are
satisfactorily  completed  or corrected, the public owner shall promptly
pay, upon receipt of a requisition,  for  these  items  less  an  amount
necessary to satisfy any claims, liens or judgments against the contrac-
tor which have not been suitably discharged. Any claims, liens and judg-
ments referred to in this section shall pertain to the project and shall
be  filed in accordance with the terms of the applicable contract and/or
applicable laws. Where the public owner is other than the  city  of  New
York,  the  term  "promptly  pay" shall mean payment within thirty days,
excluding legal holidays, of receipt  of  the  requisition  unless  such
requisition  is  not  approvable  in  accordance  with  the terms of the
contract. Notwithstanding the foregoing, where the public owner is other
than the city of New York and is a municipal corporation which  requires
an  elected  official to approve progress payments, "promptly pay" shall
mean payment  within  forty-five  days,  excluding  legal  holidays,  of
receipt  of the requisition unless such requisition is not approvable in
accordance with the terms of the contract.
  2. Payment by contractors to  subcontractors.  Within  seven  calendar
days of the receipt of any payment from the public owner, the contractor
shall  pay each of [his] ITS subcontractors and materialmen the proceeds
from the payment representing the value of  the  work  performed  and/or
materials furnished by the subcontractor and/or materialman and reflect-
ing  the  percentage  of  the  subcontractor's  work  completed  or  the
materialman's material supplied in the requisition approved by the owner
and based upon the actual value of the  subcontract  or  purchase  order
less  an  amount  necessary  to  satisfy  any claims, liens or judgments
against the subcontractor or materialman which have  not  been  suitably
discharged  and, WITH REGARD TO SUBCONTRACTORS, less any retained amount
as hereafter described. Failure by the contractor to make  any  payment,
including  any  remaining amounts of the contract balance as hereinafter
described, to any subcontractor or  materialman  within  seven  calendar
days of the receipt of any payment from the public owner shall result in
the  commencement and accrual of interest on amounts due to such subcon-
tractor or materialman for the period beginning on the  day  immediately
following the expiration of such seven calendar day period and ending on
the  date on which payment is made by the contractor to such subcontrac-
tor or materialman. Such interest shall be the  sole  responsibility  of
the  contractor,  and shall be paid at the rate of interest in effect on
the date payment is made by the contractor.  Notwithstanding  any  other
provision of law to the contrary, interest shall be computed at the rate

A. 725--A                           5

established in paragraph (b) of subdivision one of section seven hundred
fifty-six-b of the general business law. The contractor shall retain not
more  than  five per centum of each payment to the subcontractor [and/or
materialman] except that the contractor may retain in excess of five per
centum  but  not more than ten per centum of each payment to the subcon-
tractor provided that prior to entering  into  a  subcontract  with  the
contractor,  the  subcontractor  is  unable  or  unwilling  to provide a
performance bond and a labor and material bond both in the  full  amount
of  the  subcontract  at  the  request of the contractor. THE CONTRACTOR
SHALL PAY IN FULL, UPON PAYMENT BY THE PUBLIC OWNER, FOR  ALL  MATERIALS
PERTINENT  TO  THE  PROJECT WHICH HAVE BEEN DELIVERED TO AND ACCEPTED AT
THE SITE OR OFF-SITE BY A MATERIALMAN AND ARE COVERED BY  A  MANUFACTUR-
ER'S  WARRANTY,  AND/OR  ARE GRADED TO MEET INDUSTRY STANDARDS. However,
EXCEPT IN THE CASE OF A MATERIALMAN WHO IS ALSO CONTRACTED TO INSTALL  A
PRODUCT HE/SHE DELIVERED, the contractor shall retain nothing from those
payments representing proceeds owed the subcontractor and/or materialman
from  the  public  owner's  payments to the contractor for the remaining
amounts of the contract balance as provided in subdivision one  of  this
section.  If  the  contractor  has  failed  to  submit a requisition for
payment of the remaining amounts of the contract balance  within  ninety
days  of  substantial  completion as provided in subdivision one of this
section, then any clause in the subcontract between the  contractor  and
the  subcontractor  or  materialman  which  states  that  payment by the
contractor to such  subcontractor  or  materialman  is  contingent  upon
payment  by  the owner to the contractor shall be deemed invalid. Within
seven calendar days of the receipt of payment from the  contractor,  the
subcontractor and/or materialman shall pay each of [his] ITS subcontrac-
tors  and  materialmen in the same manner as the contractor has paid the
subcontractor, including interest as herein  provided  above.    Nothing
provided  herein  shall  create any obligation on the part of the public
owner to pay or to see to the payment of any moneys to any subcontractor
or materialman from any contractor nor shall  anything  provided  herein
serve  to  create  any relationship in contract or otherwise, implied or
expressed, between the  subcontractor  or  materialman  and  the  public
owner.
  S  3.  Section  756-c of the general business law, as added by chapter
127 of the laws of 2002, is amended to read as follows:
  S 756-c. Retention. 1. By mutual agreement of the relevant parties  an
owner may retain a reasonable amount of the contract sum as retainage. A
contractor  or  subcontractor  may  also  retain a reasonable amount for
retainage so long as the amount does not exceed  the  actual  percentage
retained  by  the owner. Retainage shall be released by the owner to the
contractor no later than thirty days after the  final  approval  of  the
work  under a construction contract. In the event that an owner fails to
release retainage as required by this  article,  or  the  contractor  or
subcontractor  fails  to  release a proportionate amount of retainage to
the relevant parties after receipt of  retainage  from  the  owner,  the
owner,  contractor,  or  subcontractor,  as  the  case  may be, shall be
subject to the payment of interest at the rate of one percent per  month
on the date retention was due and owing.
  2.  NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION,
NO PORTION OF ANY PAYMENT DUE AND OWING TO A MATERIAL SUPPLIER FOR MATE-
RIALS WHICH HAVE BEEN DELIVERED, ACCEPTED AND ARE COVERED BY A  MANUFAC-
TURER'S  WARRANTY,  AND/OR  GRADED  TO  MEET INDUSTRY STANDARDS SHALL BE
RETAINED BY AN OWNER, CONTRACTOR OR SUBCONTRACTOR.

A. 725--A                           6

  S 4. This act shall take effect on the thirtieth day  after  it  shall
have become a law and shall apply to materials delivered and accepted on
or after such effective date.

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Assembly Bill A725A

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Sponsored By

BRAUNSTEIN

Archive: Last Bill Status - On Floor Calendar

Bill Amendments

co-Sponsors

Claudia Tenney

Bill Nojay

Michelle Schimel

Michael Montesano

multi-Sponsors

Phil Steck

2013-A725 - Details

2013-A725 - Summary

2013-A725 - Bill Text download pdf

co-Sponsors

Claudia Tenney

Bill Nojay

Michelle Schimel

Michael Montesano

multi-Sponsors

Phil Steck

2013-A725A (ACTIVE) - Details

2013-A725A (ACTIVE) - Summary

2013-A725A (ACTIVE) - Bill Text download pdf

Comments