Bill Text: MA H4229 | 2009-2010 | 186th General Court | Introduced
Bill Title: TO PROMOTE FAIR CONTRACT PROVISIONS
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2009-09-10 - Read; and referred to the House Committee On Ways and Means [H4229 Detail]
Download: Massachusetts-2009-H4229-Introduced.html
The Commonwealth of Massachusetts
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By Mr. Walsh of Lynn, for the committee on State Administration and R egulatory Oversight, on House, No. 3053, a Bill promoting fair contract provisions (House, No. 4229). September 10, 2009 .
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AN ACT TO PROMOTE FAIR CONTRACT PROVISIONS.
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FOR THE COMMITTEE :
|
Name: |
District/Address: |
|
Steven M. Walsh |
11 th Essex |
The Commonwealth of Massachusetts
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In the Year Two Thousand and Nine
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AN ACT TO PROMOTE FAIR CONTRACT PROVISIONS.
Whereas, The deferred operation of this act would tend to defeat its purpose, which is to provide forthwith for payment to contractors regardless of receipt of payments from third persons, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1.
C
hapter 149 of
the General Laws, as appearing in
the
200
8 Official Edition
, is hereby amended
by inserting after section 29
D the following section:
—
Section
29
E
.
(a) As used in this section the following w
ords
shall
have the following meanings:
“Construction Services”, all labor, materials or services, including specially fabricated materials, rental equipment, appliances, tools and transportation charges, and all claims related thereto used or employed, or to be used or employed, in the construction, reconstruction, alteration, erection, remodeling, repair, demolition or removal of a building, structure, or other improvement to real property, whether public or private.
“Person”, individuals, corporations, organizations, trusts, associations, partnerships, companies and public agencies.
“Insolvency”, as defined under federal bankruptcy law.
“Commencement of Performance”, forthwith after first performing, and in any event before receiving any payment.
“All reasonable legal remedies”, taking such legal action as is necessary to obtain payment unless and until there is a reasonable likelihood such action will not result in obtaining payment.
(b)
Any provision in a contract for or relating to construction services
that
makes payment to person furnishing the construction services condition
al
upon receipt of payment from a third person, is against public policy and is void and unenforceable, except to the extent
that
amounts
are
not received from such third person because (1) the person furnishing the construction services failed to perform under its contract and failed to cure such non-performance after receipt of notice as provided in such contract; or (2) the third person is insolvent, provided
that
the person seeking to assert the payment condition
has
claimed a lien under chapter
254 of the General Laws
upon commencement of his performance, maintained and perfected such lien, and pursued all reasonable legal remedies to obtain payment.
The foregoing exceptions must be expressly stated in any such
contract
provision, and the person seeking to assert the payment condition shall have the burden of proof as to each element.
Nothing in this section or in any such provision shall be valid as a defense to enforcement of a lien claimed under
said
chapter
254
by the person furnishing the construction services.
A
ny
party aggrieved by the failure of the party seeking to assert the payment condition to pursue all reasonable legal remedies to obtain payment may avail itself of the summary procedure set forth in
s
ection 15A
of said c
hapter 254
for a determination of whether all reasonable legal remedies have been fulfilled with respect to the particular lien claim at issue.
Nothing contained in this section
shall be construed to
in any way amend
any
law
governing payments on public construction projects, or to impose on a public agency any payment obligation beyond that imposed by law.
