State Codes and Statutes

Statutes > New-york > Stf > Article-9 > 139-f

§   139-f.  Payment  on  public  work  projects.  Notwithstanding  the  provisions of any other law to the contrary, except  the  provisions  of  section  thirty-eight of the highway law, all contracts made and awarded  by the state, or by any public department,  or  by  any  public  benefit  corporation  or by any public corporation or official thereof, hereafter  referred to as the public owner,  for  construction,  reconstruction  or  alteration  of  any public work project shall provide for payment by the  public owner to the contractor and payment  by  the  contractor  to  the  subcontractor in accordance with the following:    1.  Payment  by  public  owners  to  contractors. The contractor shall  periodically, in accordance with the terms of the  contract,  submit  to  the  public  owner and/or his 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  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 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 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,  upon  requisition  from  the  contractor, for 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 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.    1-a.  Notwithstanding  any  other  provision  of  this  section to the  contrary, payment of the moneys due under a contract awarded  (i)  by  a  state agency as defined in article eleven-A of this chapter or (ii) by a  corporation  as  defined  in  subdivision  one  of  section twenty-eight  hundred eighty of the public authorities law which  is  subject  to  the  provision  of  this  section  shall  be  made  in  accordance  with  the  provisions of such article eleven-A, in the case of such state agencies,  or such section  twenty-eight  hundred  eighty,  in  the  case  of  such  corporations,  provided  failure  to  make  such  payment, as heretofore  prescribed, shall not be due to any fault, neglect, or omission  on  the  part  of  the  contractor  or  by  reason  of  the  filing  of any lien,attachment,  or  other  legal  process  against  the  money   due   such  contractor.    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 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  reflecting  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 less any retained amount as hereafter described. Failure  by the contractor to pay 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  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 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 subcontractor 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. 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 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 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.    3. In the event that the terms of payment on a public works project as  provided in this section are pre-empted or superseded as a result of the  provisions of any federal statute, regulation or rule applicable to  the  project, the terms of this section shall not apply.4.  Notwithstanding  any other provision of this section or other law,  requirements for the furnishing of a performance bond or a payment  bond  may  be dispensed with at the discretion of the head of the state agency  or corporation, or his or her designee, where  the  public  owner  is  a  state  agency  or  corporation  described  in  subdivision one-a of this  section and the aggregate amount  of  the  contract  awarded  or  to  be  awarded  is  under  fifty  thousand  dollars  and,  in  a case where the  contract is not subject to the multiple contract award  requirements  of  section  one  hundred thirty-five of this article, such requirements may  be dispensed with where the head of  the  state  agency  or  corporation  finds  it to be in the public interest and where the aggregate amount of  the contract awarded or to be awarded  is  under  two  hundred  thousand  dollars. Provided further, that in a case where a performance or payment  bond  is  dispensed  with,  twenty  per centum may be retained from each  progress payment or estimate until the entire  contract  work  has  been  completed  and  accepted,  at which time the head of the state agency or  corporation shall, pending the payment of the final estimate, pay not to  exceed seventy-five per centum of the amount of the retained percentage.

State Codes and Statutes

Statutes > New-york > Stf > Article-9 > 139-f

§   139-f.  Payment  on  public  work  projects.  Notwithstanding  the  provisions of any other law to the contrary, except  the  provisions  of  section  thirty-eight of the highway law, all contracts made and awarded  by the state, or by any public department,  or  by  any  public  benefit  corporation  or by any public corporation or official thereof, hereafter  referred to as the public owner,  for  construction,  reconstruction  or  alteration  of  any public work project shall provide for payment by the  public owner to the contractor and payment  by  the  contractor  to  the  subcontractor in accordance with the following:    1.  Payment  by  public  owners  to  contractors. The contractor shall  periodically, in accordance with the terms of the  contract,  submit  to  the  public  owner and/or his 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  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 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 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,  upon  requisition  from  the  contractor, for 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 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.    1-a.  Notwithstanding  any  other  provision  of  this  section to the  contrary, payment of the moneys due under a contract awarded  (i)  by  a  state agency as defined in article eleven-A of this chapter or (ii) by a  corporation  as  defined  in  subdivision  one  of  section twenty-eight  hundred eighty of the public authorities law which  is  subject  to  the  provision  of  this  section  shall  be  made  in  accordance  with  the  provisions of such article eleven-A, in the case of such state agencies,  or such section  twenty-eight  hundred  eighty,  in  the  case  of  such  corporations,  provided  failure  to  make  such  payment, as heretofore  prescribed, shall not be due to any fault, neglect, or omission  on  the  part  of  the  contractor  or  by  reason  of  the  filing  of any lien,attachment,  or  other  legal  process  against  the  money   due   such  contractor.    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 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  reflecting  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 less any retained amount as hereafter described. Failure  by the contractor to pay 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  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 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 subcontractor 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. 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 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 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.    3. In the event that the terms of payment on a public works project as  provided in this section are pre-empted or superseded as a result of the  provisions of any federal statute, regulation or rule applicable to  the  project, the terms of this section shall not apply.4.  Notwithstanding  any other provision of this section or other law,  requirements for the furnishing of a performance bond or a payment  bond  may  be dispensed with at the discretion of the head of the state agency  or corporation, or his or her designee, where  the  public  owner  is  a  state  agency  or  corporation  described  in  subdivision one-a of this  section and the aggregate amount  of  the  contract  awarded  or  to  be  awarded  is  under  fifty  thousand  dollars  and,  in  a case where the  contract is not subject to the multiple contract award  requirements  of  section  one  hundred thirty-five of this article, such requirements may  be dispensed with where the head of  the  state  agency  or  corporation  finds  it to be in the public interest and where the aggregate amount of  the contract awarded or to be awarded  is  under  two  hundred  thousand  dollars. Provided further, that in a case where a performance or payment  bond  is  dispensed  with,  twenty  per centum may be retained from each  progress payment or estimate until the entire  contract  work  has  been  completed  and  accepted,  at which time the head of the state agency or  corporation shall, pending the payment of the final estimate, pay not to  exceed seventy-five per centum of the amount of the retained percentage.

State Codes and Statutes

State Codes and Statutes

Statutes > New-york > Stf > Article-9 > 139-f

§   139-f.  Payment  on  public  work  projects.  Notwithstanding  the  provisions of any other law to the contrary, except  the  provisions  of  section  thirty-eight of the highway law, all contracts made and awarded  by the state, or by any public department,  or  by  any  public  benefit  corporation  or by any public corporation or official thereof, hereafter  referred to as the public owner,  for  construction,  reconstruction  or  alteration  of  any public work project shall provide for payment by the  public owner to the contractor and payment  by  the  contractor  to  the  subcontractor in accordance with the following:    1.  Payment  by  public  owners  to  contractors. The contractor shall  periodically, in accordance with the terms of the  contract,  submit  to  the  public  owner and/or his 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  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 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 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,  upon  requisition  from  the  contractor, for 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 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.    1-a.  Notwithstanding  any  other  provision  of  this  section to the  contrary, payment of the moneys due under a contract awarded  (i)  by  a  state agency as defined in article eleven-A of this chapter or (ii) by a  corporation  as  defined  in  subdivision  one  of  section twenty-eight  hundred eighty of the public authorities law which  is  subject  to  the  provision  of  this  section  shall  be  made  in  accordance  with  the  provisions of such article eleven-A, in the case of such state agencies,  or such section  twenty-eight  hundred  eighty,  in  the  case  of  such  corporations,  provided  failure  to  make  such  payment, as heretofore  prescribed, shall not be due to any fault, neglect, or omission  on  the  part  of  the  contractor  or  by  reason  of  the  filing  of any lien,attachment,  or  other  legal  process  against  the  money   due   such  contractor.    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 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  reflecting  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 less any retained amount as hereafter described. Failure  by the contractor to pay 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  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 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 subcontractor 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. 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 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 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.    3. In the event that the terms of payment on a public works project as  provided in this section are pre-empted or superseded as a result of the  provisions of any federal statute, regulation or rule applicable to  the  project, the terms of this section shall not apply.4.  Notwithstanding  any other provision of this section or other law,  requirements for the furnishing of a performance bond or a payment  bond  may  be dispensed with at the discretion of the head of the state agency  or corporation, or his or her designee, where  the  public  owner  is  a  state  agency  or  corporation  described  in  subdivision one-a of this  section and the aggregate amount  of  the  contract  awarded  or  to  be  awarded  is  under  fifty  thousand  dollars  and,  in  a case where the  contract is not subject to the multiple contract award  requirements  of  section  one  hundred thirty-five of this article, such requirements may  be dispensed with where the head of  the  state  agency  or  corporation  finds  it to be in the public interest and where the aggregate amount of  the contract awarded or to be awarded  is  under  two  hundred  thousand  dollars. Provided further, that in a case where a performance or payment  bond  is  dispensed  with,  twenty  per centum may be retained from each  progress payment or estimate until the entire  contract  work  has  been  completed  and  accepted,  at which time the head of the state agency or  corporation shall, pending the payment of the final estimate, pay not to  exceed seventy-five per centum of the amount of the retained percentage.