Bill Text: NY A10513 | 2017-2018 | General Assembly | Amended
Bill Title: Relates to the total amount of bonds the Upper Mohawk Valley memorial authority may issue; authorizes, for certain public works undertaken pursuant to project labor agreements, use of the alternative delivery method known as design-build contracts; increases the members of the governing body to nine.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2018-06-19 - substituted by s9090 [A10513 Detail]
Download: New_York-2017-A10513-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 10513--C IN ASSEMBLY May 4, 2018 ___________ Introduced by M. of A. BRINDISI, MAGEE -- read once and referred to the Committee on Corporations, Authorities and Commissions -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- reported and referred to the Committee on Ways and Means -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- again reported from said committee with amendments, ordered reprinted as amended and recommit- ted to said committee AN ACT to amend the public authorities law, in relation to the total amount of bonds the Upper Mohawk Valley memorial authority may issue; authorizing, for certain public works undertaken pursuant to project labor agreements, use of the alternative delivery method known as design-build contracts; increasing the membership of the authority and providing for the repeal of certain provisions upon expiration thereof The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 1 of section 1945 of the public authorities 2 law, as added by chapter 130 of the laws of 1996, is amended to read as 3 follows: 4 1. The authority shall have the power and is hereby authorized from 5 time to time to issue bonds, notes or other obligations to pay the costs 6 of the auditorium or for any other corporate purpose, including the 7 establishment of reserves to secure the bonds, the payment of principal 8 of, premium, if any, and interest on the bonds and the payment of inci- 9 dental expenses in connection therewith. The aggregate principal amount 10 of such bonds, notes or other obligations shall not exceed [two] fifty 11 million dollars [($2,000,000)] ($50,000,000), excluding bonds, notes or 12 other obligations issued to refund or otherwise repay bonds, notes or 13 other obligations theretofore issued for such purposes; provided, howev- 14 er, that upon any such refunding or repayment the total aggregate prin- 15 cipal amount of outstanding bonds, notes or other obligations may be 16 greater than [two] fifty million dollars [($2,000,000)] ($50,000,000) 17 only if the present value of the aggregate debt service of the refunding 18 or repayment bonds, notes or other obligations to be issued shall not EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD13583-17-8A. 10513--C 2 1 exceed the present value of the aggregate debt service of the bonds, 2 notes or other obligations so to be refunded or repaid. For purposes 3 hereof, the present values of the aggregate debt service of the refund- 4 ing or repayment bonds, notes or other obligations and of the aggregate 5 debt service of the bonds, notes or other obligations so refunded or 6 repaid, shall be calculated by utilizing the effective interest rate of 7 the refunding or repayment bonds, notes or other obligations, which 8 shall be that rate arrived at by doubling the semi-annual interest rate 9 (compounded semi-annually) necessary to discount the debt service 10 payments on the refunding or repayment bonds, notes or other obligations 11 from the payment dates thereof to the date of issue of the refunding or 12 repayment bonds, notes or other obligations and to the price bid includ- 13 ing estimated accrued interest or proceeds received by the authority 14 including estimated accrued interest from the sale thereof. The authori- 15 ty shall have power and is hereby authorized to enter into such agree- 16 ments and perform such acts as may be required under any applicable 17 federal legislation to secure a federal guarantee of any bonds. 18 § 2. Subdivision 1 of section 1942 of the public authorities law, as 19 added by chapter 130 of the laws of 1996, is amended to read as follows: 20 1. A public corporation, to be known as the "Upper Mohawk Valley memo- 21 rial auditorium authority" is hereby created for the public purposes and 22 charged with the duties and having the powers provided in this title. 23 The authority shall be a body corporate and politic constituting a 24 public benefit corporation. The governing body of the authority shall 25 consist of a total of seven members until January thirty-first, two 26 thousand nineteen, three of whom shall be appointed by the county execu- 27 tive, without confirmation of the county legislature, and four of whom 28 shall be appointed by the county legislature, without county executive 29 right to veto. The first members appointed by the county executive shall 30 be appointed for the following terms of office: one for a term ending 31 on December thirty-first of the first year following the year in which 32 this title shall have become law, one for a term ending on December 33 thirty-first of the third year following the year in which this title 34 shall have become law and one for a term ending on December thirty-first 35 of the fifth year following the year in which this title shall have 36 become law. The first members appointed by the county legislature shall 37 be appointed for the following terms of office: one for a term ending on 38 December thirty-first of the first year following the year in which this 39 title shall have become law, one for a term ending on December thirty- 40 first of the third year following the year in which this title shall 41 have become law, and two for a term ending on December thirty-first of 42 the fifth year following the year in which this title shall have become 43 law. Commencing February first, two thousand nineteen, the governing 44 body of the authority shall consist of a total of nine members, five of 45 whom shall be appointed by the county executive, without confirmation of 46 the county legislature, and four of whom shall be appointed by the coun- 47 ty legislature, without county executive right to veto. The seven 48 members appointed to the board prior to February first, two thousand 49 nineteen, shall continue their existing five year terms pursuant to this 50 section. The fourth member appointed by the county executive shall be 51 for a term ending on December thirty-first, two thousand twenty-one. The 52 fifth member appointed by the county executive shall be for a term 53 ending on December thirty-first, two thousand twenty-two. Subsequent 54 appointments of members shall be made for a term of five years ending in 55 each case on December thirty-first of the last year of such term. All 56 members shall continue to hold office until their successors areA. 10513--C 3 1 appointed and qualify. Vacancies shall be [filed] filled in the manner 2 provided for original appointment. Vacancies, occurring otherwise than 3 by expiration of term of office, shall be filled by appointment for the 4 unexpired terms. Members may be removed from office by the party which 5 appointed such member for inefficiency, neglect of duty or misconduct in 6 office; provided, however, that such member shall be given a copy of the 7 charges against him or her and an opportunity of being heard in person, 8 or by counsel, in his or her defense upon not less than ten days notice. 9 The members of the authority shall receive no compensation for their 10 services, but shall be reimbursed for their actual and necessary 11 expenses incurred in connection with the carrying out of the purposes of 12 this title; provided, however, that no member shall be reimbursed for 13 any expense exceeding one thousand dollars incurred with respect to any 14 individual purpose unless the governing body at a meeting duly called 15 and held when a quorum of [four] five members are present shall have 16 authorized the incurrence of such expense by such member. The powers of 17 the authority shall be vested in and be exercised by the governing body 18 at a meeting duly called and held where a quorum of [four] five members 19 are present. No action shall be taken except pursuant to the favorable 20 vote of at least [four] five voting members. All votes must be made in 21 person at a meeting and no vote may be made by proxy. The governing body 22 may delegate to one or more of its members, officers, agents or employ- 23 ees such powers and duties as it may deem proper. 24 § 3. 1. For the purposes of this section, the following terms shall 25 have the following meanings: 26 (a) "Project" shall mean any installation, construction, demolition, 27 reconstruction, excavation, rehabilitation, repair, and renovation in 28 connection with a multi-use sports complex located in the city of Utica 29 bounded on the north by the southerly boundary of Whitesboro Street, on 30 the south by the northerly boundary of Oriskany Street West, on the east 31 by the westerly boundary of Broadway and on the west by the westerly 32 boundary of Charles Street. 33 (b) "Best value" shall mean the basis for awarding contracts for 34 services to the bidder that optimizes quality, cost, efficiency, price 35 and performance criteria, which may include, but shall not be limited 36 to: 37 (i) the quality of the contractor's performance on previous projects; 38 (ii) the timeliness of the contractor's performance on previous 39 projects; 40 (iii) the level of customer satisfaction with the contractor's 41 performance on previous projects; 42 (iv) the contractor's record of performing previous projects on budget 43 and ability to minimize cost overruns; 44 (v) the contractor's ability to limit change orders; 45 (vi) the contractor's ability to prepare appropriate project plans; 46 (vii) the contractor's technical capacities; 47 (viii) the individual qualifications of the contractor's key person- 48 nel; 49 (ix) the contractor's ability to assess and manage risk and minimize 50 risk impact; and 51 (x) the contractor's past record of encouraging minority- and women- 52 owned business enterprise participation and compliance with article 15-A 53 of the executive law. 54 Such basis shall reflect, wherever possible, objective and quantifi- 55 able analysis.A. 10513--C 4 1 (c) "Design-build contract" shall mean, in conformity with the 2 requirements of this section, a contract for the design and construction 3 of the project with a single entity, which may be a team comprised of 4 separate entities. 5 (d) "Procurement record" shall mean documentation of the decisions 6 made and the approach taken in the procurement process. 7 (e) "Project labor agreement" shall mean a pre-hire collective 8 bargaining agreement between a contractor and a bona fide building and 9 construction trade labor organization establishing the labor organiza- 10 tion as the collective bargaining representative for all persons who 11 will perform work on the project, and which provides that only contrac- 12 tors and subcontractors who sign a pre-negotiated agreement with the 13 labor organization can perform project work. 14 (f) "Authority" shall mean the Upper Mohawk Valley memorial auditorium 15 authority created by section 1942 of the public authorities law. 16 2. Notwithstanding any inconsistent provisions of section 1949-d of 17 the public authorities law or the provisions of any other law, in 18 conformity with the requirements of this section, and only when a 19 project labor agreement is performed, the authority may utilize the 20 alternative delivery method referred to as a design-build contract for 21 the project. The authority shall ensure that its procurement record 22 reflects the design-build contract process authorized by this section. 23 3. An entity selected by the authority to enter into a design-build 24 contract for the project shall be selected through a two-step process, 25 as follows: 26 (a) Step one. Generation of a list of entities that have demonstrated 27 the general capability to perform a design-build contract for the 28 project. Such list shall consist of a specified number of entities, as 29 determined by the authority, and shall be generated based upon the 30 authority's review of responses to publicly advertised requests for 31 qualifications for the project. The authority's request for qualifica- 32 tions for the project shall include a general description of the 33 project, the maximum number of entities to be included on the list, and 34 the selection criteria to be used in generating the list. Such selection 35 criteria shall include: (i) the qualifications and experience of the 36 design and construction team, organization, demonstrated responsibility, 37 ability of the team or of a member or members of the team to comply with 38 applicable requirements, including the provisions of articles 145, 147 39 and 148 of the education law; (ii) past record of compliance with the 40 labor law including prevailing wage requirements under state and federal 41 law; (iii) the past record of compliance with existing labor standards 42 and maintaining harmonious labor relations; (iv) the record of protect- 43 ing the health and safety of workers on public works projects and job 44 sites as demonstrated by the experience modification rate for each of 45 the last 3 years; (v) the prospective bidder's ability to undertake the 46 particular type and complexity of work; (vi) the financial capability, 47 responsibility and reliability of the prospective bidder for such type 48 and complexity of work; (vii) the prospective bidder's compliance with 49 equal employment opportunity requirements and anti-discrimination laws, 50 and demonstrated commitment to working with minority- and women-owned 51 businesses through joint ventures or subcontractor relationships; (viii) 52 whether or not the prospective bidder or a substantially owned-affiliat- 53 ed entity, as defined by paragraph g of subdivision 5 of section 220 of 54 the labor law, is listed by the federal government as excluded from 55 receiving federal contracts and certain subcontracts, assistance, or 56 benefits pursuant to 48 C.F.R. subpart 9.4; and (ix) such other quali-A. 10513--C 5 1 fications the authority deems appropriate which may include, but shall 2 not be limited to, project understanding, financial capability and 3 record of past performance. The authority shall evaluate and rate all 4 entities responding to the request for qualifications. Based upon such 5 ratings, the authority shall list the entities that shall receive a 6 request for proposals in accordance with paragraph (b) of this subdivi- 7 sion. To the extent consistent with applicable federal law, the authori- 8 ty shall consider, when awarding any contract pursuant to this section, 9 the participation of: (1) firms certified pursuant to article 15-A of 10 the executive law as minority- or women-owned businesses and the ability 11 of other businesses under consideration to work with minority- and 12 women-owned businesses so as to promote and assist participation by such 13 businesses; and (2) small business concerns identified pursuant to 14 subdivision (b) of section 139-g of the state finance law. 15 (b) Step two. Selection of the proposal which is the best value to the 16 authority. The authority shall issue a request for proposals for the 17 project to the entities listed pursuant to paragraph (a) of this subdi- 18 vision. If such an entity consists of a team of separate entities, the 19 entities that comprise such team must remain unchanged from the entity 20 as listed pursuant to paragraph (a) of this subdivision unless otherwise 21 approved by the authority. The request for proposals for the project 22 shall set forth the project's scope of work, and other requirements, as 23 determined by the authority. The request for proposals shall specify the 24 criteria to be used to evaluate the responses and the relative weight of 25 each such criteria. Such criteria shall include the proposal's cost, the 26 quality of the proposal's solution, the qualifications and experience of 27 the design-build entity, and other factors deemed pertinent by the 28 authority, which may include, but shall not be limited to, the 29 proposal's project implementation, the ability to complete the work in a 30 timely and satisfactory manner, maintenance costs of the completed 31 project, maintenance of traffic approach, and community impact. Any 32 contract awarded pursuant to this section shall be awarded to a respon- 33 sive and responsible entity that submits a proposal, which, in consider- 34 ation of these and other specified criteria deemed pertinent to the 35 project, offers the best value to the authority, as determined by the 36 authority. Nothing in this section shall be construed to prohibit the 37 authority from negotiating final contract terms and conditions including 38 cost. 39 4. Notwithstanding the provisions of this section, when any person or 40 entity is listed by the federal government as excluded from receiving 41 federal contracts and certain subcontracts, assistance, or benefits, 42 pursuant to 48 C.F.R. subpart 9.4, such person or entity, and any 43 substantially owned-affiliated entity, as defined by paragraph g of 44 subdivision 5 of section 220 of the labor law, shall be ineligible to 45 submit a bid on or be awarded any contract authorized by this act during 46 such period of exclusion. The department of labor shall notify the 47 person or entity immediately of such ineligibility and such person or 48 entity shall be afforded the opportunity to appeal to the department of 49 labor. A substantially owned-affiliated entity, shall be afforded an 50 opportunity to be heard consistent with the provisions of subparagraph 3 51 of paragraph b of subdivision 3 of section 220-b of the labor law. 52 5. Any contract entered into pursuant to this section shall include a 53 clause requiring that any professional services regulated by articles 54 145, 147 and 148 of the education law shall be performed and stamped and 55 sealed, where appropriate, by a professional licensed in accordance with 56 such articles.A. 10513--C 6 1 6. The construction, installation, demolition, reconstruction, exca- 2 vation, rehabilitation, repair, and renovation of a project undertaken 3 by the authority pursuant to this section shall be deemed a "public 4 work" to be performed in accordance with the provisions of article 8 of 5 the labor law, as well as subject to sections 200, 240, 241 and 242 of 6 the labor law and enforcement of prevailing wage requirements by the 7 department of labor. 8 7. A project labor agreement shall be included in the request for 9 proposals for the project, provided that, based upon a study done by or 10 for the authority, the authority determines that its interest in obtain- 11 ing the best work at the lowest possible price, preventing favoritism, 12 fraud and corruption, and other considerations such as the impact of 13 delay, the possibility of cost savings advantages, and any local history 14 of labor unrest, are best met by requiring a project labor agreement. 15 The authority shall conduct such a study and the project labor agreement 16 shall be performed consistent with the provisions of section 222 of the 17 labor law. If a project labor agreement is not performed on the project 18 (i) the authority shall not utilize a design-build contract for such 19 project; (ii) and section 1949-d of the public authorities law shall 20 apply to such project. 21 8. Each contract entered into by the authority pursuant to this 22 section shall comply, whenever practicable, with the objectives and 23 goals of minority- and women-owned business enterprises pursuant to 24 article 15-A of the executive law or, if the project receives federal 25 aid, shall comply with applicable federal requirements for disadvantaged 26 business enterprises. 27 9. The project undertaken by the authority pursuant to this section 28 shall be subject to the requirements of article 8 of the environmental 29 conservation law, and, where applicable, the requirements of the 30 National Environmental Policy Act. 31 10. If otherwise applicable, a project undertaken by the authority 32 pursuant to this section shall be governed by the public authorities law 33 and sections 139-d, 139-j, and 139-k of the state finance law. 34 11. The submission of a proposal or responses of the execution of a 35 design-build contract pursuant to this section shall not be construed to 36 be a violation of section 6512 of the education law. 37 12. Nothing contained in this section shall limit the right or obli- 38 gation of the authority to comply with the provisions of any existing 39 contract, including any existing contract with or for the benefit of the 40 holders of the obligations of the authority, or to award contracts as 41 otherwise provided by law. 42 13. (a) Notwithstanding any provision of law to the contrary, all 43 rights or benefits, including terms and conditions of employment, and 44 protection of civil service and collective bargaining status of all 45 employees of the authority shall be preserved and protected. 46 (b) Nothing in this section shall result in the: (i) displacement of 47 any currently employed worker or loss of position (including partial 48 displacement such as a reduction in the hours of non-overtime work, 49 wages or employment benefits), or result in the impairment of existing 50 collective bargaining agreements; or (ii) transfer of existing duties 51 and functions related to maintenance and operations currently performed 52 by existing employees of the authority to a contracting entity. 53 (c) Employees of the authority using design-build contracts serving in 54 positions in newly created titles shall be assigned to the appropriate 55 bargaining unit. Nothing contained in this act shall be construed to 56 affect: (i) the existing rights of employees of such entities pursuantA. 10513--C 7 1 to an existing collective bargaining agreement; (ii) the existing 2 representational relationships among employee organizations representing 3 employees of such entities; or (iii) the bargaining relationships 4 between such entities and such employee organizations. 5 § 4. This act shall take effect immediately, provided, however, that 6 the provisions of section three of this act shall expire and be deemed 7 repealed two years after such date; provided, further, that if the Upper 8 Mohawk Valley memorial authority has issued requests for qualifications 9 for the project prior to such repeal, such project shall be permitted to 10 continue under this act notwithstanding such repeal.
