(a) Ten per centum shall be retained from each progress payment or
estimate until the contract work is fifty per centum completed, after
which no further moneys shall be retained from any progress payments or
estimates paid thereafter, and when the entire contract work has been
completed and accepted, the corporation shall, pending the payment of
the final estimate, pay not to exceed fifty per centum of the amount of
the retained percentage.
(b) Whenever in the judgment of the corporation the withholding of the
retained percentage on account of the closing of the working season
would be an injustice to the contractor, the corporation may, provided
the district engineer certifies that the essential items in the contract
have been completed in accordance with the terms of the contract and the
provisions of this chapter, direct the district engineer to include in
the final account such uncompleted items and pay therefor at the item
prices in the contract upon the contractor depositing with the
corporation securities equal to double the value of such uncompleted
work. The deposit may be used by the corporation to complete the
uncompleted portion of the contract and shall be returned to the
contractor if it completes the uncompleted portion within a specified
number of working days after it has been notified to proceed with the
work.
(c) No certificates approving or authorizing a partial or final
payment shall be made by the corporation until it is satisfied that all
laborers employed on the work have been paid for their services for the
last payroll period preceding the said partial or final payment. The
corporation may, if it deems necessary, require an affidavit to such
effect from the contractor or it may depend on any other source which it
deems proper for such information.
(d) Contracts in force at the date of the enactment of this
subdivision may, in the discretion of the corporation, be amended to
provide for the withholding and the payments contemplated by the
provisions of paragraph (a) of this subdivision, if the surety or
sureties upon the performance and labor and material bonds given by a
contractor upon any such contract shall consent in writing thereto.
(e) No such certificate authorizing or approving the first partial
payment or any final payment to a foreign contractor shall be made
unless such contractor shall furnish satisfactory proof that all taxes
due the commissioner of taxation and finance by such contractor under
the provisions of or pursuant to a law enacted pursuant to the authority
of article nine, nine-A, twelve-A, twenty-one, twenty-two, twenty-eight,
twenty-nine or thirty of the tax law have been paid. The certificate of
the commissioner of taxation and finance to the effect that all such
taxes have been paid shall be, for purpose of this paragraph, conclusive
proof of the payment of such taxes. The term "foreign contractor" as
used in this subdivision means, in the case of an individual, a person
who is not a resident of this state, in the case of a partnership, one
having one or more partners not a resident of this state, and in the
case of a corporation, one not organized under the laws of this state.
8. Contingencies and extra work. Whenever the corporation determines
that from any unforeseen cause the terms of any contract should be
altered to provide for contingencies or extra work, it may, if funds are
available for payment of the cost thereof, issue an order on contract
therefor to the contractor, a copy of which shall be filed with the
director of the budget and the state comptroller. The estimated
expenditure pursuant to the order on contract shall not increase the
total amount of the primary contract until the estimated expenditure
shall have been approved by the corporation and a duplicate of such
approval shall have been filed with the comptroller. No such extra work
shall be commenced or undertaken until the corporation has issued an
order on contract as herein provided.
When such order on contract provides for similar items of work or
materials which increase or decrease the itemized quantity provided for
in the primary contract, the price to be paid therefor shall not exceed
the unit bid price in the primary contract for such items. Agreed prices
for new items of work or materials may be incorporated in the order on
contract as the corporation may deem them to be just and fair and
beneficial to the state, including the corporation.
Whenever the corporation also determines that in the cases herein
provided it is impracticable for it to ascertain in advance the just and
fair prices to be paid by the state for new items of work or materials,
the order on contract therefor may provide for performance of the work
and the furnishing of the materials and equipment, in which event the
contractor shall keep and shall make available at all times to the
corporation such accounting records, data and procedure as may be
required by the corporation.