Bill Text: NY S09090 | 2017-2018 | General Assembly | Introduced


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 (Republican 1-0)

Status: (Passed) 2018-07-31 - SIGNED CHAP.187 [S09090 Detail]

Download: New_York-2017-S09090-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          9090
                    IN SENATE
                                      June 15, 2018
                                       ___________
        Introduced  by  Sen.  GRIFFO -- read twice and ordered printed, and when
          printed to be committed to the Committee on Rules
        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
    19  exceed  the  present  value  of the aggregate debt service of the bonds,
    20  notes or other obligations so to be refunded  or  repaid.  For  purposes
    21  hereof,  the present values of the aggregate debt service of the refund-
    22  ing or repayment bonds, notes or other obligations and of the  aggregate
    23  debt  service  of  the  bonds, notes or other obligations so refunded or
    24  repaid, shall be calculated by utilizing the effective interest rate  of
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13583-19-8

        S. 9090                             2
     1  the  refunding  or  repayment  bonds,  notes or other obligations, which
     2  shall be that rate arrived at by doubling the semi-annual interest  rate
     3  (compounded  semi-annually)  necessary  to  discount  the  debt  service
     4  payments on the refunding or repayment bonds, notes or other obligations
     5  from  the payment dates thereof to the date of issue of the refunding or
     6  repayment bonds, notes or other obligations and to the price bid includ-
     7  ing estimated accrued interest or proceeds  received  by  the  authority
     8  including estimated accrued interest from the sale thereof. The authori-
     9  ty  shall  have power and is hereby authorized to enter into such agree-
    10  ments and perform such acts as may  be  required  under  any  applicable
    11  federal legislation to secure a federal guarantee of any bonds.
    12    §  2.  Subdivision 1 of section 1942 of the public authorities law, as
    13  added by chapter 130 of the laws of 1996, is amended to read as follows:
    14    1. A public corporation, to be known as the "Upper Mohawk Valley memo-
    15  rial auditorium authority" is hereby created for the public purposes and
    16  charged with the duties and having the powers provided  in  this  title.
    17  The  authority  shall  be  a  body  corporate and politic constituting a
    18  public benefit corporation. The governing body of  the  authority  shall
    19  consist  of  a  total  of  seven members until January thirty-first, two
    20  thousand nineteen, three of whom shall be appointed by the county execu-
    21  tive, without confirmation of the county legislature, and four  of  whom
    22  shall  be  appointed by the county legislature, without county executive
    23  right to veto. The first members appointed by the county executive shall
    24  be appointed for the following terms of office:  one for a  term  ending
    25  on  December  thirty-first of the first year following the year in which
    26  this title shall have become law, one for  a  term  ending  on  December
    27  thirty-first  of  the  third year following the year in which this title
    28  shall have become law and one for a term ending on December thirty-first
    29  of the fifth year following the year in  which  this  title  shall  have
    30  become  law. The first members appointed by the county legislature shall
    31  be appointed for the following terms of office: one for a term ending on
    32  December thirty-first of the first year following the year in which this
    33  title shall have become law, one for a term ending on  December  thirty-
    34  first  of  the  third  year following the year in which this title shall
    35  have become law, and two for a term ending on December  thirty-first  of
    36  the  fifth year following the year in which this title shall have become
    37  law.  Commencing February first, two thousand  nineteen,  the  governing
    38  body  of the authority shall consist of a total of nine members, five of
    39  whom shall be appointed by the county executive, without confirmation of
    40  the county legislature, and four of whom shall be appointed by the coun-
    41  ty legislature, without  county  executive  right  to  veto.  The  seven
    42  members  appointed  to  the  board prior to February first, two thousand
    43  nineteen, shall continue their existing five year terms pursuant to this
    44  section. The fourth member appointed by the county  executive  shall  be
    45  for a term ending on December thirty-first, two thousand twenty-one. The
    46  fifth  member  appointed  by  the  county  executive shall be for a term
    47  ending on December thirty-first,  two  thousand  twenty-two.  Subsequent
    48  appointments of members shall be made for a term of five years ending in
    49  each  case  on  December thirty-first of the last year of such term. All
    50  members shall  continue  to  hold  office  until  their  successors  are
    51  appointed  and  qualify. Vacancies shall be [filed] filled in the manner
    52  provided for original appointment. Vacancies, occurring  otherwise  than
    53  by  expiration of term of office, shall be filled by appointment for the
    54  unexpired terms. Members may be removed from office by the  party  which
    55  appointed such member for inefficiency, neglect of duty or misconduct in
    56  office; provided, however, that such member shall be given a copy of the

        S. 9090                             3
     1  charges  against him or her and an opportunity of being heard in person,
     2  or by counsel, in his or her defense upon not less than ten days notice.
     3  The members of the authority shall receive  no  compensation  for  their
     4  services,  but  shall  be  reimbursed  for  their  actual  and necessary
     5  expenses incurred in connection with the carrying out of the purposes of
     6  this title; provided, however, that no member shall  be  reimbursed  for
     7  any  expense exceeding one thousand dollars incurred with respect to any
     8  individual purpose unless the governing body at a  meeting  duly  called
     9  and  held  when  a  quorum of [four] five members are present shall have
    10  authorized the incurrence of such expense by such member. The powers  of
    11  the  authority shall be vested in and be exercised by the governing body
    12  at a meeting duly called and held where a quorum of [four] five  members
    13  are  present.  No action shall be taken except pursuant to the favorable
    14  vote of at least [four] five voting members. All votes must be  made  in
    15  person at a meeting and no vote may be made by proxy. The governing body
    16  may  delegate to one or more of its members, officers, agents or employ-
    17  ees such powers and duties as it may deem proper.
    18    § 3. 1. For the purposes of this section, the  following  terms  shall
    19  have the following meanings:
    20    (a)  "Project"  shall mean any installation, construction, demolition,
    21  reconstruction, excavation, rehabilitation, repair,  and  renovation  in
    22  connection  with a multi-use sports complex located in the city of Utica
    23  bounded on the north by the southerly boundary of Whitesboro Street,  on
    24  the south by the northerly boundary of Oriskany Street West, on the east
    25  by  the  westerly  boundary  of Broadway and on the west by the westerly
    26  boundary of Charles Street.
    27    (b) "Best value" shall mean  the  basis  for  awarding  contracts  for
    28  services  to  the bidder that optimizes quality, cost, efficiency, price
    29  and performance criteria, which may include, but shall  not  be  limited
    30  to:
    31    (i) the quality of the contractor's performance on previous projects;
    32    (ii)  the  timeliness  of  the  contractor's  performance  on previous
    33  projects;
    34    (iii)  the  level  of  customer  satisfaction  with  the  contractor's
    35  performance on previous projects;
    36    (iv) the contractor's record of performing previous projects on budget
    37  and ability to minimize cost overruns;
    38    (v) the contractor's ability to limit change orders;
    39    (vi) the contractor's ability to prepare appropriate project plans;
    40    (vii) the contractor's technical capacities;
    41    (viii)  the  individual qualifications of the contractor's key person-
    42  nel;
    43    (ix) the contractor's ability to assess and manage risk  and  minimize
    44  risk impact; and
    45    (x)  the  contractor's past record of encouraging minority- and women-
    46  owned business enterprise participation and compliance with article 15-A
    47  of the executive law.
    48    Such basis shall reflect, wherever possible, objective  and  quantifi-
    49  able analysis.
    50    (c)  "Design-build  contract"  shall  mean,  in  conformity  with  the
    51  requirements of this section, a contract for the design and construction
    52  of the project with a single entity, which may be a  team  comprised  of
    53  separate entities.
    54    (d)  "Procurement  record"  shall  mean documentation of the decisions
    55  made and the approach taken in the procurement process.

        S. 9090                             4
     1    (e)  "Project  labor  agreement"  shall  mean  a  pre-hire  collective
     2  bargaining  agreement  between a contractor and a bona fide building and
     3  construction trade labor organization establishing the  labor  organiza-
     4  tion  as  the  collective  bargaining representative for all persons who
     5  will  perform work on the project, and which provides that only contrac-
     6  tors and subcontractors who sign a  pre-negotiated  agreement  with  the
     7  labor organization can perform project work.
     8    (f) "Authority" shall mean the Upper Mohawk Valley memorial auditorium
     9  authority created by section 1942 of the public authorities law.
    10    2.  Notwithstanding  any  inconsistent provisions of section 1949-d of
    11  the public authorities law or  the  provisions  of  any  other  law,  in
    12  conformity  with  the  requirements  of  this  section,  and only when a
    13  project labor agreement is performed,  the  authority  may  utilize  the
    14  alternative  delivery  method referred to as a design-build contract for
    15  the project. The authority shall  ensure  that  its  procurement  record
    16  reflects the design-build contract process authorized by this section.
    17    3.  An  entity  selected by the authority to enter into a design-build
    18  contract for the project shall be selected through a  two-step  process,
    19  as follows:
    20    (a)  Step one. Generation of a list of entities that have demonstrated
    21  the general capability  to  perform  a  design-build  contract  for  the
    22  project.  Such  list shall consist of a specified number of entities, as
    23  determined by the authority, and  shall  be  generated  based  upon  the
    24  authority's  review  of  responses  to  publicly advertised requests for
    25  qualifications for the project.  The authority's request for  qualifica-
    26  tions  for  the  project  shall  include  a  general  description of the
    27  project, the maximum number of entities to be included on the list,  and
    28  the selection criteria to be used in generating the list. Such selection
    29  criteria  shall  include:  (i)  the qualifications and experience of the
    30  design and construction team, organization, demonstrated responsibility,
    31  ability of the team or of a member or members of the team to comply with
    32  applicable requirements, including the provisions of articles  145,  147
    33  and  148  of  the education law; (ii) past record of compliance with the
    34  labor law including prevailing wage requirements under state and federal
    35  law; (iii) the past record of compliance with existing  labor  standards
    36  and  maintaining harmonious labor relations; (iv) the record of protect-
    37  ing the health and safety of workers on public works  projects  and  job
    38  sites  as  demonstrated  by the experience modification rate for each of
    39  the last 3 years; (v) the prospective bidder's ability to undertake  the
    40  particular  type  and complexity of work; (vi) the financial capability,
    41  responsibility and reliability of the prospective bidder for  such  type
    42  and  complexity  of work; (vii) the prospective bidder's compliance with
    43  equal employment opportunity requirements and anti-discrimination  laws,
    44  and  demonstrated  commitment  to working with minority- and women-owned
    45  businesses through joint ventures or subcontractor relationships; (viii)
    46  whether or not the prospective bidder or a substantially owned-affiliat-
    47  ed entity, as defined by paragraph g of subdivision 5 of section 220  of
    48  the  labor  law,  is  listed  by the federal government as excluded from
    49  receiving federal contracts and  certain  subcontracts,  assistance,  or
    50  benefits  pursuant  to 48 C.F.R. subpart 9.4; and (ix) such other quali-
    51  fications the authority deems appropriate which may include,  but  shall
    52  not  be  limited  to,  project  understanding,  financial capability and
    53  record of past performance. The authority shall evaluate  and  rate  all
    54  entities  responding  to the request for qualifications. Based upon such
    55  ratings, the authority shall list the  entities  that  shall  receive  a
    56  request  for proposals in accordance with paragraph (b) of this subdivi-

        S. 9090                             5
     1  sion. To the extent consistent with applicable federal law, the authori-
     2  ty shall consider, when awarding any contract pursuant to this  section,
     3  the  participation  of:  (1) firms certified pursuant to article 15-A of
     4  the executive law as minority- or women-owned businesses and the ability
     5  of  other  businesses  under  consideration  to  work with minority- and
     6  women-owned businesses so as to promote and assist participation by such
     7  businesses; and (2)  small  business  concerns  identified  pursuant  to
     8  subdivision (b) of section 139-g of the state finance law.
     9    (b) Step two. Selection of the proposal which is the best value to the
    10  authority.  The  authority  shall  issue a request for proposals for the
    11  project to the entities listed pursuant to paragraph (a) of this  subdi-
    12  vision.  If  such an entity consists of a team of separate entities, the
    13  entities that comprise such team must remain unchanged from  the  entity
    14  as listed pursuant to paragraph (a) of this subdivision unless otherwise
    15  approved  by  the  authority.  The request for proposals for the project
    16  shall set forth the project's scope of work, and other requirements,  as
    17  determined by the authority. The request for proposals shall specify the
    18  criteria to be used to evaluate the responses and the relative weight of
    19  each such criteria. Such criteria shall include the proposal's cost, the
    20  quality of the proposal's solution, the qualifications and experience of
    21  the  design-build  entity,  and  other  factors  deemed pertinent by the
    22  authority,  which  may  include,  but  shall  not  be  limited  to,  the
    23  proposal's project implementation, the ability to complete the work in a
    24  timely  and  satisfactory  manner,  maintenance  costs  of the completed
    25  project, maintenance of traffic  approach,  and  community  impact.  Any
    26  contract  awarded pursuant to this section shall be awarded to a respon-
    27  sive and responsible entity that submits a proposal, which, in consider-
    28  ation of these and other specified  criteria  deemed  pertinent  to  the
    29  project,  offers  the  best value to the authority, as determined by the
    30  authority. Nothing in this section shall be construed  to  prohibit  the
    31  authority from negotiating final contract terms and conditions including
    32  cost.
    33    4.  Notwithstanding the provisions of this section, when any person or
    34  entity is listed by the federal government as  excluded  from  receiving
    35  federal  contracts  and  certain  subcontracts, assistance, or benefits,
    36  pursuant to 48 C.F.R. subpart  9.4,  such  person  or  entity,  and  any
    37  substantially  owned-affiliated  entity,  as  defined  by paragraph g of
    38  subdivision 5 of section 220 of the labor law, shall  be  ineligible  to
    39  submit a bid on or be awarded any contract authorized by this act during
    40  such  period  of  exclusion.  The  department  of labor shall notify the
    41  person or entity immediately of such ineligibility and  such  person  or
    42  entity  shall be afforded the opportunity to appeal to the department of
    43  labor. A substantially owned-affiliated entity,  shall  be  afforded  an
    44  opportunity to be heard consistent with the provisions of subparagraph 3
    45  of paragraph b of subdivision 3 of section 220-b of the labor law.
    46    5.  Any contract entered into pursuant to this section shall include a
    47  clause requiring that any professional services  regulated  by  articles
    48  145, 147 and 148 of the education law shall be performed and stamped and
    49  sealed, where appropriate, by a professional licensed in accordance with
    50  such articles.
    51    6.  The  construction, installation, demolition, reconstruction, exca-
    52  vation, rehabilitation, repair, and renovation of a  project  undertaken
    53  by  the  authority  pursuant  to  this section shall be deemed a "public
    54  work" to be performed in accordance with the provisions of article 8  of
    55  the  labor  law, as well as subject to sections 200, 240, 241 and 242 of

        S. 9090                             6
     1  the labor law and enforcement of prevailing  wage  requirements  by  the
     2  department of labor.
     3    7.  A  project  labor  agreement  shall be included in the request for
     4  proposals for the project, provided that, based upon a study done by  or
     5  for the authority, the authority determines that its interest in obtain-
     6  ing  the  best work at the lowest possible price, preventing favoritism,
     7  fraud and corruption, and other considerations such  as  the  impact  of
     8  delay, the possibility of cost savings advantages, and any local history
     9  of  labor  unrest,  are best met by requiring a project labor agreement.
    10  The authority shall conduct such a study and the project labor agreement
    11  shall be performed consistent with the provisions of section 222 of  the
    12  labor  law. If a project labor agreement is not performed on the project
    13  (i) the authority shall not utilize a  design-build  contract  for  such
    14  project;  (ii)  and  section  1949-d of the public authorities law shall
    15  apply to such project.
    16    8. Each contract entered  into  by  the  authority  pursuant  to  this
    17  section  shall  comply,  whenever  practicable,  with the objectives and
    18  goals of minority- and  women-owned  business  enterprises  pursuant  to
    19  article  15-A  of  the executive law or, if the project receives federal
    20  aid, shall comply with applicable federal requirements for disadvantaged
    21  business enterprises.
    22    9. The project undertaken by the authority pursuant  to  this  section
    23  shall  be  subject to the requirements of article 8 of the environmental
    24  conservation  law,  and,  where  applicable,  the  requirements  of  the
    25  National Environmental Policy Act.
    26    10.  If  otherwise  applicable,  a project undertaken by the authority
    27  pursuant to this section shall be governed by the public authorities law
    28  and sections 139-d, 139-j, and 139-k of the state finance law.
    29    11. The submission of a proposal or responses of the  execution  of  a
    30  design-build contract pursuant to this section shall not be construed to
    31  be a violation of section 6512 of the education law.
    32    12.  Nothing  contained in this section shall limit the right or obli-
    33  gation of the authority to comply with the provisions  of  any  existing
    34  contract, including any existing contract with or for the benefit of the
    35  holders  of  the  obligations of the authority, or to award contracts as
    36  otherwise provided by law.
    37    13. (a) Notwithstanding any provision of  law  to  the  contrary,  all
    38  rights  or  benefits,  including terms and conditions of employment, and
    39  protection of civil service and  collective  bargaining  status  of  all
    40  employees of the authority shall be preserved and protected.
    41    (b)  Nothing  in this section shall result in the: (i) displacement of
    42  any currently employed worker or loss  of  position  (including  partial
    43  displacement  such  as  a  reduction  in the hours of non-overtime work,
    44  wages or employment benefits), or result in the impairment  of  existing
    45  collective  bargaining  agreements;  or (ii) transfer of existing duties
    46  and functions related to maintenance and operations currently  performed
    47  by existing employees of the authority to a contracting entity.
    48    (c) Employees of the authority using design-build contracts serving in
    49  positions  in  newly created titles shall be assigned to the appropriate
    50  bargaining unit. Nothing contained in this act  shall  be  construed  to
    51  affect:  (i)  the existing rights of employees of such entities pursuant
    52  to an  existing  collective  bargaining  agreement;  (ii)  the  existing
    53  representational relationships among employee organizations representing
    54  employees  of  such  entities;  or  (iii)  the  bargaining relationships
    55  between such entities and such employee organizations.

        S. 9090                             7
     1    § 4. This act shall take effect immediately, provided,  however,  that
     2  the  provisions  of section three of this act shall expire and be deemed
     3  repealed two years after such date; provided, further, that if the Upper
     4  Mohawk Valley memorial authority has issued requests for  qualifications
     5  for the project prior to such repeal, such project shall be permitted to
     6  continue under this act notwithstanding such repeal.
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