N.Y. Public Authorities Law § 3303: Westchester county health care corporation

§ 3303. Westchester county health care corporation. 1. (a) There is

hereby created a state board to be known as the Westchester county

health care corporation which shall be a body corporate and politic

constituting a public benefit corporation.

(b) The corporation shall be governed by fifteen voting directors of

which eight directors shall be appointed by the governor and seven

directors shall be appointed by the legislature of the county of

Westchester subject to approval by the county executive. The governor

shall make appointments to the corporation as follows: three directors

from a recommendation submitted by the county executive; three directors

from a recommendation submitted by the legislature of the county of

Westchester; one director, who shall be a resident of Westchester

county, from a recommendation submitted by the speaker of the assembly;

one director, who shall be a resident of Westchester county, from a

recommendation submitted by the temporary president of the senate.

The terms of the initial voting directors appointed by the governor

shall be five years for such directors appointed upon recommendation of

the temporary president of the senate and the speaker of the assembly.

The terms of the initial voting directors appointed by the governor upon

the recommendation of the county executive shall be five years for one,

four years for one and three years for one. The terms of the initial

voting directors appointed by the governor upon the recommendation of

the legislature of the county shall be four years for two and three

years for one. The terms of the initial voting directors appointed by

the legislature of the county with the approval of the county executive

shall be one year for three of such directors, two years for three of

such directors and three years for one of such directors.

(c) Each voting director should possess a high degree of experience

and knowledge in relevant fields and a high degree of interest in the

corporation. The appointment of any voting director to the corporation

shall be based in part on the objective of ensuring that the corporation

includes diverse and beneficial perspectives and experience, including,

but not limited to, those of business management, law, finance, medical

and/or other health professionals, health sector workers, and the

patient or consumer perspective.

2. There shall be four non-voting representatives which shall include

the chief executive officer of the corporation as appointed by the

voting directors of the board, one representative selected by the county

executive, one selected by the majority leader of the county board of

legislators and one selected by the minority leader of the county board

of legislators. Such representatives shall have all of the rights and

powers of the voting directors other than the right and power to vote

including, but not limited to, the right to equal access to information.

3. (a) All voting directors shall continue to hold office until their

successors are appointed and qualify. All subsequent appointments shall

be for a term of five years and may be eligible for reappointment.

(b) Vacancies occurring otherwise than by expiration of term of office

shall be filled for the unexpired terms in the manner provided for

original appointment. All directors and non-voting representatives shall

continue to hold office until their successors are appointed and have

qualified. Vacancies shall be filled in the same manner as provided for

original appointment. Vacancies occurring otherwise than by expiration

of terms of office, shall be filled by appointment for unexpired terms.

Members may be removed from office by the board for inefficiency,

neglect of duty or misconduct in office, after the board has given such

member a copy of the charges against him or her or opportunity to be

heard in person or by counsel in his or her defense, upon not less than

ten days notice.

4. (a) The voting directors shall by majority vote select one of the

fifteen voting directors as the chairperson of the board. The

chairperson shall preside over all meetings of the board and shall have

such other duties as the voting directors may direct.

(b) The voting directors, non-voting representatives of the

corporation shall receive no compensation for their services, but shall

be reimbursed for all their actual and necessary expenses incurred in

connection with the carrying out of the purposes of this title.

(c) The powers of the corporation shall be vested in and shall be

exercised by the board at a meeting duly called and held where a quorum

of eight voting directors is present. No action shall be taken by the

corporation except pursuant to the favorable vote of at least eight

voting directors present at the meeting at which such action is taken.

5. The voting directors shall select and shall determine the salary

and benefits of the chief executive officer of the corporation. The

voting directors shall have the authority to discharge the chief

executive officer with or without cause; provided, however, that removal

without cause shall not prejudice the contract rights, if any, of the

chief executive officer.

6. Notwithstanding any inconsistent provision of any general, special

or local law, ordinance, resolution or charter, no officer, member or

employee of the state or of any public corporation shall forfeit his or

her office or employment by reason of his or her acceptance of

appointment as a director, non-voting representative, officer or

employee of the corporation, nor shall service as such a director,

non-voting representative, officer or employee be deemed incompatible or

in conflict with such office, or employment, and provided further,

however, that no public officer elected to his or her office pursuant to

the laws of the state or any municipality thereof may serve as a member

of the governing body of the corporation during his or her term of

office.

7. The corporation and its corporate existence shall continue until

terminated by law, provided, however, that no such termination shall

take effect so long as the corporation shall have bonds or other

obligations outstanding, unless adequate provision has been made for the

payment or satisfaction thereof. Upon termination of the existence of

the corporation, all of the rights and properties of the corporation

then remaining shall pass to and vest in the county in such manner as

prescribed by law.

8. Contracts for works, construction or purchases to which the

corporation is a party shall be subject to the provisions of article

five-A of the general municipal law except as provided in subdivisions

nine and ten of this section. In addition to the procedures prescribed

under section one hundred four of the general municipal law for the

utilization of the terms of state contracts, the corporation may utilize

the terms of a federal government general services contract where the

terms are to the advantage of the corporation and have been offered to

the corporation by the contractor. When bids have already been received

by the corporation no purchase under a federal government general

services contract shall be made unless the purchase may be made upon the

same terms, conditions and specifications at a lower price through such

contractor.

9. It is the intent of the legislature that overall cost should in all

cases be a major criterion in the selection of project developers for

award of contracts pursuant to this section and that, wherever

practical, such contracts should be entered into through competitive

bidding procedures as prescribed by sections one hundred one and one

hundred three of the general municipal law. It is further the intent of

the legislature to acknowledge the highly complex and innovative nature

of medical technology, diagnostic and treatment devices, the relative

newness of a variety of devices, processes and procedures now available,

the desirability of a single point of responsibility for the development

of medical treatment and diagnostic facilities and the economic and

technical utility of contracts for medical projects which include in

their scope various combinations of design, construction, operation,

management and/or maintenance responsibility over prolonged periods of

time and that in some instances it may be beneficial to the corporation

to award a contract for a medical project on the basis of factors other

than cost alone, including but not limited to facility design, system

reliability, efficiency, safety, and compatibility with other elements

of patient care. Accordingly, and notwithstanding the provisions of any

general, special or local law or chapter, a contract for a medical

project entered into between the corporation and any project developer

pursuant to this section may be awarded pursuant to public bidding in

compliance with sections one hundred one and one hundred three of the

general municipal law or pursuant to the following provisions for the

award of a contract based on evaluation of proposals submitted in

response to a request for proposals prepared by or for the corporation:

(a) The corporation shall require that each proposal to be submitted

by a project developer shall include:

(i) information relating to the experience and expertise of the

project developer on the basis of which said project developer purports

to be qualified to carry out all work required by a proposed contract;

the ability of the project developer to secure adequate financing; and

proposals for project staffing, implementation of work tasks, and the

carrying out of all responsibilities by a proposed contract;

(ii) a proposal clearly identifying and specifying all elements of

cost which would become charges to the corporation, in whatever form, in

return for the fulfillment by the project developer for the full

lifetime of a proposed contract, including, as appropriate, but not

limited to the cost planning, design, construction, operation,

management and/or maintenance of any facility, and clearly identifying

and specifying all elements of revenue which would accrue to the

corporation from the operation of the facility or device or from any

other source; provided, that the corporation may prescribe the form and

content of such proposal and that, in any event, the project developer

must submit sufficiently detailed information to permit a fair and

equitable evaluation by the corporation of such proposal; and provided,

further, that the corporation may set maximum allowable cost limits in

any form in the request for proposals; and

(iii) such other information as the corporation may determine to have

a material bearing on its ability to evaluate any proposal in accordance

with this subparagraph;

(b) Prior to the issuance of a request for proposals pursuant to this

paragraph, the corporation shall publish notice of such issuance in at

least one newspaper of general circulation. Concurrent with the

publication of such notice a draft request for proposals shall be filed

with the county commissioner of health.

(c) Proposals received in response to such request for proposals shall

be evaluated by the corporation as to net cost or, if a net revenue is

projected, net revenue, and in a manner consistent with provisions set

forth in the request for proposals, and may be evaluated on the basis of

additional factors, including but not limited to the technical

evaluation of the medical project including medical facility, facility

design, system reliability, energy balance and efficiency. The

evaluation of such proposals and the determination of whether a project

developer is "responsible" may include, but shall not be limited to,

consideration, in a manner consistent with provisions set forth in the

request for proposals, the record of the project developer in complying

with existing labor standards and recognizing state and federally

approved apprentice training programs, and the willingness of the

project developer to provide for meaningful participation of minority

group persons and business enterprises in the conduct of the work;

(d) The corporation may make a contract award to any responsible

project developer based on a determination by the corporation that the

selected proposal is most responsive to the request for proposals and

may negotiate with any project developer, provided, however, that if any

award is made to any project developer whose total proposal does not

provide either the lowest net cost, or if a net revenue is projected,

the greatest net revenue, of any proposal received, the corporation

shall adopt a resolution which includes particularized findings relevant

to factors pursuant to such subparagraph indicating that the

corporation's requirements are met by such award and that such action is

in the public interest.

Whenever the corporation enters into a contract pursuant to this

section for a medical project which involves construction the provisions

of section two hundred twenty of the labor law shall be applicable to

such construction work.

10. Every contract entered into between the corporation and a project

developer, pursuant to the provisions of paragraph (d) of subdivision

nine of this section, for a medical project involving construction of a

medical building by the project developer, shall contain provisions that

such building shall be constructed through construction contracts

awarded through competitive bidding in accordance with paragraphs (a)

through (g) of this subdivision; that the project developer or the

project developer's construction subcontractor shall furnish a bond

guaranteeing prompt payment of moneys that are due to all persons

furnishing labor and materials pursuant to the requirements of such

construction contracts, and that a copy of such payment bond shall be

kept by the corporation and shall be open to public inspection;

provided, however, that the requirements of this subdivision shall not

apply when the cost of such construction, exclusive of the cost of

medical equipment and devices, is less than one million five hundred

thousand dollars.

(a) The project developer shall advertise for bids for such

construction contracts in a daily newspaper having general circulation

in the county. Such advertisement shall contain a statement of the time

and place where all bids received pursuant to such notice will be

publicly opened and read. An employee of the corporation shall be

designated to open the bids at the time and place specified in the

notice. All bids received shall be publicly opened and read at the time

and place so specified. At least five days shall elapse between the

publication of such advertisement and date on which the bids are opened.

(b) Except as otherwise provided in section two hundred twenty-two of

the labor law, when the entire cost of constructing such building,

exclusive of any medical equipment, apparatus or devices, shall exceed

one million five hundred thousand dollars, the project developer shall

prepare separate specifications for the following subdivisions of such

work, so as to permit separate and independent bidding upon each

subdivision:

(i) plumbing and gas fittings;

(ii) steam heating, hot water heating, ventilating and air

conditioning apparatus; and

(iii) electric wiring and standard illuminating fixtures.

(c) After public competitive bidding, the project developer shall

award one or more separate contracts for each of the above subdivisions

of such work, whenever separate specifications are required pursuant to

paragraph (b) of this subdivision, and one or more contracts for the

remainder of such work. The project developer may award such contracts

at different times. Contracts awarded pursuant to this subdivision shall

be awarded by the project developer to the lowest responsible and

responsive bidder and shall be contracts of the project developer and

not of the corporation which shall have no obligation or liabilities,

whatsoever, thereunder. The project developer shall have the

responsibility for the supervision, coordination, and termination of

such contracts, unless otherwise specified in contractual terms between

the project developer and the corporation.

(c-1) Each bidder on a public work contract, where the preparation of

separate specifications is not required, shall submit with its bid a

separate sealed list that names each subcontractor that the bidder will

use to perform work on the contract, and the agreed-upon amount to be

paid to each, for: (i) plumbing and gas fitting, (ii) steam heating, hot

water heating, ventilating and air conditioning apparatus and (iii)

electric wiring and standard illuminating fixtures. After the low bid is

announced, the sealed list of subcontractors submitted with such low bid

shall be opened and the names of such subcontractors shall be announced,

and thereafter any change of subcontractor or agreed-upon amount to be

paid to each shall require the approval of the public owner, upon a

showing presented to the public owner of legitimate construction need

for such change, which shall be open to public inspection. Legitimate

construction need shall include, but not be limited to, a change in

project specifications, a change in construction material costs, a

change to subcontractor status as determined pursuant to paragraph (e)

of subdivision two of section two hundred twenty-two of the labor law,

or the subcontractor has become otherwise unwilling, unable or

unavailable to perform the subcontract. The sealed lists of

subcontractors submitted by all other bidders shall be returned to them

unopened after the contract award.

(d) In determining whether a prospective contractor is responsible and

responsive, the project developer may require that prospective

contractors:

(i) have adequate financial resources or the ability to obtain such

resources;

(ii) be able to comply with the required or proposed delivery or

performance schedule;

(iii) have a satisfactory record of performance;

(iv) have the necessary organization, experience, operational

controls, and technical skills, or the ability to obtain them;

(v) have the necessary production, construction and technical

equipment and facilities, or the ability to obtain them; and

(vi) be eligible to receive an award under applicable laws and

regulations and be otherwise qualified.

(e) The project developer may reject any bid of a bidder which the

project developer determines to be nonresponsible or nonresponsive to

the advertisement for bids.

(f) The project developer may, in its discretion, reject all bids, and

may revise bid specifications and may readvertise for bids as provided

herein.

(g) Only as used in this section:

(i) "project developer" means any private corporation, partnership,

limited liability company, or individual, or combination thereof which

has submitted a proposal in response to a request for proposals;

(ii) "construction" shall include reconstruction, rehabilitation or

improvement exclusive of the installation and assembly of any medical

equipment, apparatus or device;

(iii) "medical building" means that component of a medical project

constituting appurtenant structures or facilities necessary to house or

render the remaining components of the medical project operational.

Medical building shall not include apparatus, equipment, devices,

systems, supplies or any combination thereof;

(iv) "medical project" means any substantial durable apparatus,

equipment, device or system, or any combination of the foregoing,

including services necessary to install, erect, or assemble the

foregoing and any appurtenant structures or facilities necessary to

house or render the foregoing operational, to be used for the purpose of

care, treatment or diagnosis of disease or injury or the relief of pain

and suffering of sick or injured persons. Medical projects shall not

include ordinary supplies and equipment expended or utilized in the

customary care and treatment of patients.

11. (a) For purposes of applying section eighty-seven of the public

officers law, to the corporation, the term "trade secrets" shall include

marketing strategy or strategic marketing plans, analyses, evaluations

and pricing strategies or pricing commitments of the corporation,

relating to business development, which, if disclosed, would be likely

to injure the competitive position of the corporation.

(b) In addition to the matters listed in section one hundred five of

the public officers law, the corporation may conduct an executive

session for the purpose of considering marketing strategy or strategic

marketing plans, analyses, evaluations and pricing strategies of the

corporation, relating to business development, which, if disclosed,

would be likely to injure the competitive position of the corporation.