N.Y. Public Authorities Law § 3628: Erie County Medical Center Corporation

§ 3628. Erie County Medical Center Corporation. 1. (a) There is hereby

created a state board to be known as the Erie County Medical Center

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

whom eight directors shall be appointed by the governor and seven

directors shall be appointed by the county executive of the county of

Erie. The governor shall make appointments to the corporation as

follows: three directors from a recommendation submitted by the county

executive of the county of Erie; three directors from a recommendation

submitted by the legislature of the county of Erie; one director, who

shall be a resident of the county of Erie, from a recommendation

submitted by the temporary president of the senate; and one director,

who shall be a resident of the county of Erie, from a recommendation

submitted by the speaker of the assembly. The county executive of the

county of Erie shall make seven appointments to the board with the

advice and consent of the legislature of the county of Erie.

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

recommendation of the county executive of the county of Erie shall be

five years for one, four years for one, and three years for one. The

terms of the initial directors appointed by the governor upon the

recommendation of the legislature of the county of Erie shall be four

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

directors appointed by the county executive of the county of Erie shall

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

directors, and three years for two of such directors.

(c) Each director shall possess a high degree of experience and

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

corporation. The appointment of any 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 or other

health professionals or both, health sector workers, the patient or

consumer perspective, and residence in the western New York community.

2. There shall be four non-voting representatives, who shall include

the chief executive officer of the corporation appointed by the voting

directors of the board, one selected by the Erie county executive, one

selected by the majority leader of the Erie county legislature, and one

member selected by the minority leader of the Erie county legislature.

Such representatives shall have all of the rights and powers of the

directors other than the right and power to vote, including, but not

limited to, the right to equal access to information.

3. All directors and non-voting representatives shall continue to hold

office until their successors are appointed and qualify. All subsequent

appointments made upon the expiration of an initial term shall be for a

term of five years, and all appointees shall be eligible for

reappointment. Vacancies occurring otherwise than by expiration of term

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

for original appointment. Members of the board 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 and an opportunity to be heard in person or by

counsel in his or her defense, upon not less than ten days notice.

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

fifteen 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 directors may provide.

(b) The voting directors and 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 carrying out 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 directors is present. No action shall be taken by the

corporation except pursuant to the favorable vote of at least eight

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

(d) The members of the board or any committee thereof may participate

in a meeting of such board or committee by means of a conference

telephone or similar communications equipment allowing all persons

participating in the meeting to hear each other at the same time;

participation by such means shall constitute presence in person at a

meeting.

(e) Any action required or permitted to be taken by the board or any

committee thereof may be taken without a meeting if all members of the

board or the committee consent in writing to the adoption of a

resolution authorizing the action. The resolution and the written

consents thereto by the members of the board or committee shall be filed

with the minutes of the proceedings of the board or committee.

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

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

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 shall have a chief executive officer, a secretary,

a treasurer, and such other officers as the board shall from time to

time provide; such officers shall exercise the duties provided by the

board or by this title.

8. 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 is

or may be prescribed by law.

9. 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

ten and eleven 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.

10. It is the intent of the legislature that overall cost shall in all

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

award of contracts pursuant to this section and that, whenever

practical, such contracts shall 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 and 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, or maintenance responsibility, or any combination

thereof, over prolonged periods of time, and to acknowledge 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 charter, 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 an 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 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 required 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

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

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

management, or maintenance, or any combination thereof, 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) Prior to the issuance of a request for proposals pursuant to this

subdivision, 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 or not 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, of the record of the project developer in

complying with existing labor standards and recognizing state and

federally approved apprentice training programs and consideration of the

willingness of the project developer to provide for meaningful

participation of minority group persons and business enterprises in the

conduct of the work; and

(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 paragraph (c) of this subdivision indicating that

the corporation's requirements are met by 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.

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

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

ten 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, apparatus, and devices, is less than 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 the 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, exceeds 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 or not 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 if the

project developer determines the bidder to be non-responsible or the bid

non-responsive to the advertisement for bids.

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

revise bid specifications, and may re-advertise for bids as provided in

this subdivision for original advertisements.

(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" includes 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 does not include apparatus, equipment, devices,

systems, supplies, or any combination thereof; and

(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 do not

include ordinary supplies and equipment expended or utilized in the

customary care and treatment of patients.

12. (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, including strategic alliances and

contracts for managed care and other network arrangements, capitation

contracts, and other similar arrangements 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 or

pricing commitments of the corporation relating to business development,

including strategic alliances and contracts for managed care and other

network arrangements, capitation contracts, and other similar

arrangements relating to business development which, if disclosed, would

be likely to injure the competitive position of the corporation.

13. The county shall provide the corporation with full funding of the

network's existing capital program for the years two thousand four, two

thousand five, and two thousand six, as authorized in the county's two

thousand three capital budget.