N.Y. Public Authorities Law § 3603: Clifton-Fine health care corporation

§ 3603. Clifton-Fine health care corporation. 1. (a) There is hereby

created a board to be known as the Clifton-Fine health care corporation

which shall be a body corporate and politic constituting a public

benefit corporation.

(b) The corporation shall be governed by eight voting directors to be

appointed in the following manner as follows: (i) four directors shall

be appointed by the town supervisor of the town of Fine; and (ii) four

directors shall be appointed by the town supervisor of the town of

Clifton, the governing body of each town shall make recommendations to

their respective town supervisor pursuant to the recommendations of the

board of the hospital for the initial directors, and pursuant to the

recommendations of the board of the corporation for subsequent

directors; provided, however, the town supervisors may appoint persons

other than those so recommended. Any director absent for three

successive regular meetings shall be deemed to have resigned from the

board of directors unless said director has submitted in writing to the

chairperson of the board of directors an acceptable reason for said

absences. The first directors shall be appointed for the following terms

from the first day of January, two thousand as follows: one from each

town for a term of one year, one from each town for a term of two years,

one from each town for a term of three years and one from each town for

a term of four years. Subsequent appointments of directors shall be made

in the same manner as set forth in this paragraph and for a term of five

years. All directors shall continue to hold office until their

successors are appointed and qualified. The resignation of any director

shall be filed with the appointing authority and shall be effective when

so filed. Vacancies occurring otherwise than by expiration of term of

office, shall be filled in the same manner as set forth in this

paragraph by the supervisor of the respective town for the unexpired

term. Directors of the board may be removed from office for the same

reasons and in the same manner as may be provided by law for the removal

of officers of a town. The powers of the board shall be vested in and

exercised by the directors as heretofore set forth and the board formed

at a meeting called for said purpose by the chairperson of the existing

board of managers of the Clifton-Fine Hospital.

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

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

corporation and should reside in either the town of Clifton or the town

of Fine. 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 three non-voting members: one non-voting member

shall be the chief executive officer of the corporation as appointed by

the voting directors of the board; and two other non-voting members who

shall be the town supervisors of the towns of Clifton and Fine. Such

members 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, provided, however, when the

board is acting pursuant to its authority under subdivision four of this

section such chief executive officer may be excluded from such meeting

and access to any information regarding actions of the board pursuant to

such subdivision may be denied to him or her.

3. (a) The voting directors shall by majority vote elect from among

its members annually a chairperson, a vice-chair to serve in the absence

of the chairperson, a secretary and an assistant-secretary to serve in

the absence of the secretary. The first election shall be held at the

time of the first meeting of the members of the board.

(b) The members shall receive no compensation for their services, but

may be reimbursed for their actual and necessary expenses incurred in

connection with the performance of their official duties if the

corporation shall so provide by resolution for such cases.

(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 five voting directors is present. No action shall be taken by the

corporation except pursuant to the favorable vote of at least five

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

4. 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 contractual rights, if any, of the

chief executive officer.

5. 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 employee of the corporation or public officer elected

to his or her office pursuant to the laws of the state or any

municipality thereof may serve as a voting member of the governing body

of the corporation during his or her term of office.

6. 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 as the corporation and the towns may agree,

and such terms and conditions may include reversion of said property and

rights to the towns.

7. Contracts for work, 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

eight and nine 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.

7-a. For the purposes of article fifteen-A of the executive law only,

the authority shall be deemed a state agency as that term is used in

such article, and all contracts for procurement, design, construction,

services, and materials shall be deemed state contracts within the

meaning of that term as set forth in such article.

8. It is the intent of the legislature that overall costs should in

all cases by a major criterion in the selection of project developers

for the 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. 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, a contract for a medical project entered into

between the corporation and any project developer pursuant to this

article 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

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

in return for the fulfillment by the project developer for the full

life-time of a proposed contract including, as appropriate, but not

limited to the cost of 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 paragraph.

(b) 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 is complying

with existing labor standards and recognizing state and federally

approved apprentice training programs.

(c) 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.

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.

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

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

eight 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 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 five hundred thousand dollars.

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

construction contracts in the official newspaper or newspapers, if any,

or otherwise in a newspaper or newspapers designated for such purpose.

Such advertisements 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

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 subdivisions of

such work set forth in subparagraphs (i), (ii) and (iii) of paragraph

(b) of this subdivision, 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

contract 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) 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.

10. (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.