S T A T E O F N E W Y O R K
________________________________________________________________________
9090
I N S E N A T E
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:
Section 1. Subdivision 1 of section 1945 of the public authorities
law, as added by chapter 130 of the laws of 1996, is amended to read as
follows:
1. The authority shall have the power and is hereby authorized from
time to time to issue bonds, notes or other obligations to pay the costs
of the auditorium or for any other corporate purpose, including the
establishment of reserves to secure the bonds, the payment of principal
of, premium, if any, and interest on the bonds and the payment of inci-
dental expenses in connection therewith. The aggregate principal amount
of such bonds, notes or other obligations shall not exceed [two] FIFTY
million dollars [($2,000,000)] ($50,000,000), excluding bonds, notes or
other obligations issued to refund or otherwise repay bonds, notes or
other obligations theretofore issued for such purposes; provided, howev-
er, that upon any such refunding or repayment the total aggregate prin-
cipal amount of outstanding bonds, notes or other obligations may be
greater than [two] FIFTY million dollars [($2,000,000)] ($50,000,000)
only if the present value of the aggregate debt service of the refunding
or repayment bonds, notes or other obligations to be issued shall not
exceed the present value of the aggregate debt service of the bonds,
notes or other obligations so to be refunded or repaid. For purposes
hereof, the present values of the aggregate debt service of the refund-
ing or repayment bonds, notes or other obligations and of the aggregate
debt service of the bonds, notes or other obligations so refunded or
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
the refunding or repayment bonds, notes or other obligations, which
shall be that rate arrived at by doubling the semi-annual interest rate
(compounded semi-annually) necessary to discount the debt service
payments on the refunding or repayment bonds, notes or other obligations
from the payment dates thereof to the date of issue of the refunding or
repayment bonds, notes or other obligations and to the price bid includ-
ing estimated accrued interest or proceeds received by the authority
including estimated accrued interest from the sale thereof. The authori-
ty shall have power and is hereby authorized to enter into such agree-
ments and perform such acts as may be required under any applicable
federal legislation to secure a federal guarantee of any bonds.
§ 2. Subdivision 1 of section 1942 of the public authorities law, as
added by chapter 130 of the laws of 1996, is amended to read as follows:
1. A public corporation, to be known as the "Upper Mohawk Valley memo-
rial auditorium authority" is hereby created for the public purposes and
charged with the duties and having the powers provided in this title.
The authority shall be a body corporate and politic constituting a
public benefit corporation. The governing body of the authority shall
consist of a total of seven members UNTIL JANUARY THIRTY-FIRST, TWO
THOUSAND NINETEEN, three of whom shall be appointed by the county execu-
tive, without confirmation of the county legislature, and four of whom
shall be appointed by the county legislature, without county executive
right to veto. The first members appointed by the county executive shall
be appointed for the following terms of office: one for a term ending
on December thirty-first of the first year following the year in which
this title shall have become law, one for a term ending on December
thirty-first of the third year following the year in which this title
shall have become law and one for a term ending on December thirty-first
of the fifth year following the year in which this title shall have
become law. The first members appointed by the county legislature shall
be appointed for the following terms of office: one for a term ending on
December thirty-first of the first year following the year in which this
title shall have become law, one for a term ending on December thirty-
first of the third year following the year in which this title shall
have become law, and two for a term ending on December thirty-first of
the fifth year following the year in which this title shall have become
law. COMMENCING FEBRUARY FIRST, TWO THOUSAND NINETEEN, THE GOVERNING
BODY OF THE AUTHORITY SHALL CONSIST OF A TOTAL OF NINE MEMBERS, FIVE OF
WHOM SHALL BE APPOINTED BY THE COUNTY EXECUTIVE, WITHOUT CONFIRMATION OF
THE COUNTY LEGISLATURE, AND FOUR OF WHOM SHALL BE APPOINTED BY THE COUN-
TY LEGISLATURE, WITHOUT COUNTY EXECUTIVE RIGHT TO VETO. THE SEVEN
MEMBERS APPOINTED TO THE BOARD PRIOR TO FEBRUARY FIRST, TWO THOUSAND
NINETEEN, SHALL CONTINUE THEIR EXISTING FIVE YEAR TERMS PURSUANT TO THIS
SECTION. THE FOURTH MEMBER APPOINTED BY THE COUNTY EXECUTIVE SHALL BE
FOR A TERM ENDING ON DECEMBER THIRTY-FIRST, TWO THOUSAND TWENTY-ONE. THE
FIFTH MEMBER APPOINTED BY THE COUNTY EXECUTIVE SHALL BE FOR A TERM
ENDING ON DECEMBER THIRTY-FIRST, TWO THOUSAND TWENTY-TWO. Subsequent
appointments of members shall be made for a term of five years ending in
each case on December thirty-first of the last year of such term. All
members shall continue to hold office until their successors are
appointed and qualify. Vacancies shall be [filed] FILLED in the manner
provided for original appointment. Vacancies, occurring otherwise than
by expiration of term of office, shall be filled by appointment for the
unexpired terms. Members may be removed from office by the party which
appointed such member for inefficiency, neglect of duty or misconduct in
office; provided, however, that such member shall be given a copy of the
S. 9090 3
charges against him or her and an opportunity of being heard in person,
or by counsel, in his or her defense upon not less than ten days notice.
The members of the authority shall receive no compensation for their
services, but shall be reimbursed for their actual and necessary
expenses incurred in connection with the carrying out of the purposes of
this title; provided, however, that no member shall be reimbursed for
any expense exceeding one thousand dollars incurred with respect to any
individual purpose unless the governing body at a meeting duly called
and held when a quorum of [four] FIVE members are present shall have
authorized the incurrence of such expense by such member. The powers of
the authority shall be vested in and be exercised by the governing body
at a meeting duly called and held where a quorum of [four] FIVE members
are present. No action shall be taken except pursuant to the favorable
vote of at least [four] FIVE voting members. All votes must be made in
person at a meeting and no vote may be made by proxy. The governing body
may delegate to one or more of its members, officers, agents or employ-
ees such powers and duties as it may deem proper.
§ 3. 1. For the purposes of this section, the following terms shall
have the following meanings:
(a) "Project" shall mean any installation, construction, demolition,
reconstruction, excavation, rehabilitation, repair, and renovation in
connection with a multi-use sports complex located in the city of Utica
bounded on the north by the southerly boundary of Whitesboro Street, on
the south by the northerly boundary of Oriskany Street West, on the east
by the westerly boundary of Broadway and on the west by the westerly
boundary of Charles Street.
(b) "Best value" shall mean the basis for awarding contracts for
services to the bidder that optimizes quality, cost, efficiency, price
and performance criteria, which may include, but shall not be limited
to:
(i) the quality of the contractor's performance on previous projects;
(ii) the timeliness of the contractor's performance on previous
projects;
(iii) the level of customer satisfaction with the contractor's
performance on previous projects;
(iv) the contractor's record of performing previous projects on budget
and ability to minimize cost overruns;
(v) the contractor's ability to limit change orders;
(vi) the contractor's ability to prepare appropriate project plans;
(vii) the contractor's technical capacities;
(viii) the individual qualifications of the contractor's key person-
nel;
(ix) the contractor's ability to assess and manage risk and minimize
risk impact; and
(x) the contractor's past record of encouraging minority- and women-
owned business enterprise participation and compliance with article 15-A
of the executive law.
Such basis shall reflect, wherever possible, objective and quantifi-
able analysis.
(c) "Design-build contract" shall mean, in conformity with the
requirements of this section, a contract for the design and construction
of the project with a single entity, which may be a team comprised of
separate entities.
(d) "Procurement record" shall mean documentation of the decisions
made and the approach taken in the procurement process.
S. 9090 4
(e) "Project labor agreement" shall mean a pre-hire collective
bargaining agreement between a contractor and a bona fide building and
construction trade labor organization establishing the labor organiza-
tion as the collective bargaining representative for all persons who
will perform work on the project, and which provides that only contrac-
tors and subcontractors who sign a pre-negotiated agreement with the
labor organization can perform project work.
(f) "Authority" shall mean the Upper Mohawk Valley memorial auditorium
authority created by section 1942 of the public authorities law.
2. Notwithstanding any inconsistent provisions of section 1949-d of
the public authorities law or the provisions of any other law, in
conformity with the requirements of this section, and only when a
project labor agreement is performed, the authority may utilize the
alternative delivery method referred to as a design-build contract for
the project. The authority shall ensure that its procurement record
reflects the design-build contract process authorized by this section.
3. An entity selected by the authority to enter into a design-build
contract for the project shall be selected through a two-step process,
as follows:
(a) Step one. Generation of a list of entities that have demonstrated
the general capability to perform a design-build contract for the
project. Such list shall consist of a specified number of entities, as
determined by the authority, and shall be generated based upon the
authority's review of responses to publicly advertised requests for
qualifications for the project. The authority's request for qualifica-
tions for the project shall include a general description of the
project, the maximum number of entities to be included on the list, and
the selection criteria to be used in generating the list. Such selection
criteria shall include: (i) the qualifications and experience of the
design and construction team, organization, demonstrated responsibility,
ability of the team or of a member or members of the team to comply with
applicable requirements, including the provisions of articles 145, 147
and 148 of the education law; (ii) past record of compliance with the
labor law including prevailing wage requirements under state and federal
law; (iii) the past record of compliance with existing labor standards
and maintaining harmonious labor relations; (iv) the record of protect-
ing the health and safety of workers on public works projects and job
sites as demonstrated by the experience modification rate for each of
the last 3 years; (v) the prospective bidder's ability to undertake the
particular type and complexity of work; (vi) the financial capability,
responsibility and reliability of the prospective bidder for such type
and complexity of work; (vii) the prospective bidder's compliance with
equal employment opportunity requirements and anti-discrimination laws,
and demonstrated commitment to working with minority- and women-owned
businesses through joint ventures or subcontractor relationships; (viii)
whether or not the prospective bidder or a substantially owned-affiliat-
ed entity, as defined by paragraph g of subdivision 5 of section 220 of
the labor law, is listed by the federal government as excluded from
receiving federal contracts and certain subcontracts, assistance, or
benefits pursuant to 48 C.F.R. subpart 9.4; and (ix) such other quali-
fications the authority deems appropriate which may include, but shall
not be limited to, project understanding, financial capability and
record of past performance. The authority shall evaluate and rate all
entities responding to the request for qualifications. Based upon such
ratings, the authority shall list the entities that shall receive a
request for proposals in accordance with paragraph (b) of this subdivi-
S. 9090 5
sion. To the extent consistent with applicable federal law, the authori-
ty shall consider, when awarding any contract pursuant to this section,
the participation of: (1) firms certified pursuant to article 15-A of
the executive law as minority- or women-owned businesses and the ability
of other businesses under consideration to work with minority- and
women-owned businesses so as to promote and assist participation by such
businesses; and (2) small business concerns identified pursuant to
subdivision (b) of section 139-g of the state finance law.
(b) Step two. Selection of the proposal which is the best value to the
authority. The authority shall issue a request for proposals for the
project to the entities listed pursuant to paragraph (a) of this subdi-
vision. If such an entity consists of a team of separate entities, the
entities that comprise such team must remain unchanged from the entity
as listed pursuant to paragraph (a) of this subdivision unless otherwise
approved by the authority. The request for proposals for the project
shall set forth the project's scope of work, and other requirements, as
determined by the authority. The request for proposals shall specify the
criteria to be used to evaluate the responses and the relative weight of
each such criteria. Such criteria shall include the proposal's cost, the
quality of the proposal's solution, the qualifications and experience of
the design-build entity, and other factors deemed pertinent by the
authority, which may include, but shall not be limited to, the
proposal's project implementation, the ability to complete the work in a
timely and satisfactory manner, maintenance costs of the completed
project, maintenance of traffic approach, and community impact. Any
contract awarded pursuant to this section shall be awarded to a respon-
sive and responsible entity that submits a proposal, which, in consider-
ation of these and other specified criteria deemed pertinent to the
project, offers the best value to the authority, as determined by the
authority. Nothing in this section shall be construed to prohibit the
authority from negotiating final contract terms and conditions including
cost.
4. Notwithstanding the provisions of this section, when any person or
entity is listed by the federal government as excluded from receiving
federal contracts and certain subcontracts, assistance, or benefits,
pursuant to 48 C.F.R. subpart 9.4, such person or entity, and any
substantially owned-affiliated entity, as defined by paragraph g of
subdivision 5 of section 220 of the labor law, shall be ineligible to
submit a bid on or be awarded any contract authorized by this act during
such period of exclusion. The department of labor shall notify the
person or entity immediately of such ineligibility and such person or
entity shall be afforded the opportunity to appeal to the department of
labor. A substantially owned-affiliated entity, shall be afforded an
opportunity to be heard consistent with the provisions of subparagraph 3
of paragraph b of subdivision 3 of section 220-b of the labor law.
5. Any contract entered into pursuant to this section shall include a
clause requiring that any professional services regulated by articles
145, 147 and 148 of the education law shall be performed and stamped and
sealed, where appropriate, by a professional licensed in accordance with
such articles.
6. The construction, installation, demolition, reconstruction, exca-
vation, rehabilitation, repair, and renovation of a project undertaken
by the authority pursuant to this section shall be deemed a "public
work" to be performed in accordance with the provisions of article 8 of
the labor law, as well as subject to sections 200, 240, 241 and 242 of
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the labor law and enforcement of prevailing wage requirements by the
department of labor.
7. A project labor agreement shall be included in the request for
proposals for the project, provided that, based upon a study done by or
for the authority, the authority determines that its interest in obtain-
ing the best work at the lowest possible price, preventing favoritism,
fraud and corruption, and other considerations such as the impact of
delay, the possibility of cost savings advantages, and any local history
of labor unrest, are best met by requiring a project labor agreement.
The authority shall conduct such a study and the project labor agreement
shall be performed consistent with the provisions of section 222 of the
labor law. If a project labor agreement is not performed on the project
(i) the authority shall not utilize a design-build contract for such
project; (ii) and section 1949-d of the public authorities law shall
apply to such project.
8. Each contract entered into by the authority pursuant to this
section shall comply, whenever practicable, with the objectives and
goals of minority- and women-owned business enterprises pursuant to
article 15-A of the executive law or, if the project receives federal
aid, shall comply with applicable federal requirements for disadvantaged
business enterprises.
9. The project undertaken by the authority pursuant to this section
shall be subject to the requirements of article 8 of the environmental
conservation law, and, where applicable, the requirements of the
National Environmental Policy Act.
10. If otherwise applicable, a project undertaken by the authority
pursuant to this section shall be governed by the public authorities law
and sections 139-d, 139-j, and 139-k of the state finance law.
11. The submission of a proposal or responses of the execution of a
design-build contract pursuant to this section shall not be construed to
be a violation of section 6512 of the education law.
12. Nothing contained in this section shall limit the right or obli-
gation of the authority to comply with the provisions of any existing
contract, including any existing contract with or for the benefit of the
holders of the obligations of the authority, or to award contracts as
otherwise provided by law.
13. (a) Notwithstanding any provision of law to the contrary, all
rights or benefits, including terms and conditions of employment, and
protection of civil service and collective bargaining status of all
employees of the authority shall be preserved and protected.
(b) Nothing in this section shall result in the: (i) displacement of
any currently employed worker or loss of position (including partial
displacement such as a reduction in the hours of non-overtime work,
wages or employment benefits), or result in the impairment of existing
collective bargaining agreements; or (ii) transfer of existing duties
and functions related to maintenance and operations currently performed
by existing employees of the authority to a contracting entity.
(c) Employees of the authority using design-build contracts serving in
positions in newly created titles shall be assigned to the appropriate
bargaining unit. Nothing contained in this act shall be construed to
affect: (i) the existing rights of employees of such entities pursuant
to an existing collective bargaining agreement; (ii) the existing
representational relationships among employee organizations representing
employees of such entities; or (iii) the bargaining relationships
between such entities and such employee organizations.
S. 9090 7
§ 4. This act shall take effect immediately, provided, however, that
the provisions of section three of this act shall expire and be deemed
repealed two years after such date; provided, further, that if the Upper
Mohawk Valley memorial authority has issued requests for qualifications
for the project prior to such repeal, such project shall be permitted to
continue under this act notwithstanding such repeal.
