§ 3303 — Westchester county health care corporation

§ 3303. Westchester county health care corporation. 1. (a) There is\nhereby created a state board to be known as the Westchester county\nhealth care corporation which shall be a body corporate and politic\nconstituting a public benefit corporation.\n (b) The corporation shall be governed by fifteen voting directors of\nwhich eight directors shall be appointed by the governor and seven\ndirectors shall be appointed by the legislature of the county of\nWestchester subject to approval by the county executive. The governor\nshall make appointments to the corporation as follows: three directors\nfrom a recommendation submitted by the county executive; three directors\nfrom a recommendation submitted by the legislature of the county of\nWestchester; one director, who shall be a resident of Westchester\ncounty, from a recommendation submitted by the speaker of the assembly;\none director, who shall be a resident of Westchester county, from a\nrecommendation submitted by the temporary president of the senate.\n The terms of the initial voting directors appointed by the governor\nshall be five years for such directors appointed upon recommendation of\nthe temporary president of the senate and the speaker of the assembly.\nThe terms of the initial voting directors appointed by the governor upon\nthe recommendation of the county executive shall be five years for one,\nfour years for one and three years for one. The terms of the initial\nvoting directors appointed by the governor upon the recommendation of\nthe legislature of the county shall be four years for two and three\nyears for one. The terms of the initial voting directors appointed by\nthe legislature of the county with the approval of the county executive\nshall be one year for three of such directors, two years for three of\nsuch directors and three years for one of such directors.\n (c) Each voting director should possess a high degree of experience\nand knowledge in relevant fields and a high degree of interest in the\ncorporation. The appointment of any voting director to the corporation\nshall be based in part on the objective of ensuring that the corporation\nincludes diverse and beneficial perspectives and experience, including,\nbut not limited to, those of business management, law, finance, medical\nand/or other health professionals, health sector workers, and the\npatient or consumer perspective.\n 2. There shall be four non-voting representatives which shall include\nthe chief executive officer of the corporation as appointed by the\nvoting directors of the board, one representative selected by the county\nexecutive, one selected by the majority leader of the county board of\nlegislators and one selected by the minority leader of the county board\nof legislators. Such representatives shall have all of the rights and\npowers of the voting directors other than the right and power to vote\nincluding, but not limited to, the right to equal access to information.\n 3. (a) All voting directors shall continue to hold office until their\nsuccessors are appointed and qualify. All subsequent appointments shall\nbe for a term of five years and may be eligible for reappointment.\n (b) Vacancies occurring otherwise than by expiration of term of office\nshall be filled for the unexpired terms in the manner provided for\noriginal appointment. All directors and non-voting representatives shall\ncontinue to hold office until their successors are appointed and have\nqualified. Vacancies shall be filled in the same manner as provided for\noriginal appointment. Vacancies occurring otherwise than by expiration\nof terms of office, shall be filled by appointment for unexpired terms.\nMembers may be removed from office by the board for inefficiency,\nneglect of duty or misconduct in office, after the board has given such\nmember a copy of the charges against him or her or opportunity to be\nheard in person or by counsel in his or her defense, upon not less than\nten days notice.\n 4. (a) The voting directors shall by majority vote select one of the\nfifteen voting directors as the chairperson of the board. The\nchairperson shall preside over all meetings of the board and shall have\nsuch other duties as the voting directors may direct.\n (b) The voting directors, non-voting representatives of the\ncorporation shall receive no compensation for their services, but shall\nbe reimbursed for all their actual and necessary expenses incurred in\nconnection with the carrying out of the purposes of this title.\n (c) The powers of the corporation shall be vested in and shall be\nexercised by the board at a meeting duly called and held where a quorum\nof eight voting directors is present. No action shall be taken by the\ncorporation except pursuant to the favorable vote of at least eight\nvoting directors present at the meeting at which such action is taken.\n 5. The voting directors shall select and shall determine the salary\nand benefits of the chief executive officer of the corporation. The\nvoting directors shall have the authority to discharge the chief\nexecutive officer with or without cause; provided, however, that removal\nwithout cause shall not prejudice the contract rights, if any, of the\nchief executive officer.\n 6. Notwithstanding any inconsistent provision of any general, special\nor local law, ordinance, resolution or charter, no officer, member or\nemployee of the state or of any public corporation shall forfeit his or\nher office or employment by reason of his or her acceptance of\nappointment as a director, non-voting representative, officer or\nemployee of the corporation, nor shall service as such a director,\nnon-voting representative, officer or employee be deemed incompatible or\nin conflict with such office, or employment, and provided further,\nhowever, that no public officer elected to his or her office pursuant to\nthe laws of the state or any municipality thereof may serve as a member\nof the governing body of the corporation during his or her term of\noffice.\n 7. The corporation and its corporate existence shall continue until\nterminated by law, provided, however, that no such termination shall\ntake effect so long as the corporation shall have bonds or other\nobligations outstanding, unless adequate provision has been made for the\npayment or satisfaction thereof. Upon termination of the existence of\nthe corporation, all of the rights and properties of the corporation\nthen remaining shall pass to and vest in the county in such manner as\nprescribed by law.\n 8. Contracts for works, construction or purchases to which the\ncorporation is a party shall be subject to the provisions of article\nfive-A of the general municipal law except as provided in subdivisions\nnine and ten of this section. In addition to the procedures prescribed\nunder section one hundred four of the general municipal law for the\nutilization of the terms of state contracts, the corporation may utilize\nthe terms of a federal government general services contract where the\nterms are to the advantage of the corporation and have been offered to\nthe corporation by the contractor. When bids have already been received\nby the corporation no purchase under a federal government general\nservices contract shall be made unless the purchase may be made upon the\nsame terms, conditions and specifications at a lower price through such\ncontractor.\n 9. It is the intent of the legislature that overall cost should in all\ncases be a major criterion in the selection of project developers for\naward of contracts pursuant to this section and that, wherever\npractical, such contracts should be entered into through competitive\nbidding procedures as prescribed by sections one hundred one and one\nhundred three of the general municipal law. It is further the intent of\nthe legislature to acknowledge the highly complex and innovative nature\nof medical technology, diagnostic and treatment devices, the relative\nnewness of a variety of devices, processes and procedures now available,\nthe desirability of a single point of responsibility for the development\nof medical treatment and diagnostic facilities and the economic and\ntechnical utility of contracts for medical projects which include in\ntheir scope various combinations of design, construction, operation,\nmanagement and/or maintenance responsibility over prolonged periods of\ntime and that in some instances it may be beneficial to the corporation\nto award a contract for a medical project on the basis of factors other\nthan cost alone, including but not limited to facility design, system\nreliability, efficiency, safety, and compatibility with other elements\nof patient care. Accordingly, and notwithstanding the provisions of any\ngeneral, special or local law or chapter, a contract for a medical\nproject entered into between the corporation and any project developer\npursuant to this section may be awarded pursuant to public bidding in\ncompliance with sections one hundred one and one hundred three of the\ngeneral municipal law or pursuant to the following provisions for the\naward of a contract based on evaluation of proposals submitted in\nresponse to a request for proposals prepared by or for the corporation:\n (a) The corporation shall require that each proposal to be submitted\nby a project developer shall include:\n (i) information relating to the experience and expertise of the\nproject developer on the basis of which said project developer purports\nto be qualified to carry out all work required by a proposed contract;\nthe ability of the project developer to secure adequate financing; and\nproposals for project staffing, implementation of work tasks, and the\ncarrying out of all responsibilities by a proposed contract;\n (ii) a proposal clearly identifying and specifying all elements of\ncost which would become charges to the corporation, in whatever form, in\nreturn for the fulfillment by the project developer for the full\nlifetime of a proposed contract, including, as appropriate, but not\nlimited to the cost planning, design, construction, operation,\nmanagement and/or maintenance of any facility, and clearly identifying\nand specifying all elements of revenue which would accrue to the\ncorporation from the operation of the facility or device or from any\nother source; provided, that the corporation may prescribe the form and\ncontent of such proposal and that, in any event, the project developer\nmust submit sufficiently detailed information to permit a fair and\nequitable evaluation by the corporation of such proposal; and provided,\nfurther, that the corporation may set maximum allowable cost limits in\nany form in the request for proposals; and\n (iii) such other information as the corporation may determine to have\na material bearing on its ability to evaluate any proposal in accordance\nwith this subparagraph;\n (b) Prior to the issuance of a request for proposals pursuant to this\nparagraph, the corporation shall publish notice of such issuance in at\nleast one newspaper of general circulation. Concurrent with the\npublication of such notice a draft request for proposals shall be filed\nwith the county commissioner of health.\n (c) Proposals received in response to such request for proposals shall\nbe evaluated by the corporation as to net cost or, if a net revenue is\nprojected, net revenue, and in a manner consistent with provisions set\nforth in the request for proposals, and may be evaluated on the basis of\nadditional factors, including but not limited to the technical\nevaluation of the medical project including medical facility, facility\ndesign, system reliability, energy balance and efficiency. The\nevaluation of such proposals and the determination of whether a project\ndeveloper is "responsible" may include, but shall not be limited to,\nconsideration, in a manner consistent with provisions set forth in the\nrequest for proposals, the record of the project developer in complying\nwith existing labor standards and recognizing state and federally\napproved apprentice training programs, and the willingness of the\nproject developer to provide for meaningful participation of minority\ngroup persons and business enterprises in the conduct of the work;\n (d) The corporation may make a contract award to any responsible\nproject developer based on a determination by the corporation that the\nselected proposal is most responsive to the request for proposals and\nmay negotiate with any project developer, provided, however, that if any\naward is made to any project developer whose total proposal does not\nprovide either the lowest net cost, or if a net revenue is projected,\nthe greatest net revenue, of any proposal received, the corporation\nshall adopt a resolution which includes particularized findings relevant\nto factors pursuant to such subparagraph indicating that the\ncorporation's requirements are met by such award and that such action is\nin the public interest.\n Whenever the corporation enters into a contract pursuant to this\nsection for a medical project which involves construction the provisions\nof section two hundred twenty of the labor law shall be applicable to\nsuch construction work.\n 10. Every contract entered into between the corporation and a project\ndeveloper, pursuant to the provisions of paragraph (d) of subdivision\nnine of this section, for a medical project involving construction of a\nmedical building by the project developer, shall contain provisions that\nsuch building shall be constructed through construction contracts\nawarded through competitive bidding in accordance with paragraphs (a)\nthrough (g) of this subdivision; that the project developer or the\nproject developer's construction subcontractor shall furnish a bond\nguaranteeing prompt payment of moneys that are due to all persons\nfurnishing labor and materials pursuant to the requirements of such\nconstruction contracts, and that a copy of such payment bond shall be\nkept by the corporation and shall be open to public inspection;\nprovided, however, that the requirements of this subdivision shall not\napply when the cost of such construction, exclusive of the cost of\nmedical equipment and devices, is less than one million five hundred\nthousand dollars.\n (a) The project developer shall advertise for bids for such\nconstruction contracts in a daily newspaper having general circulation\nin the county. Such advertisement shall contain a statement of the time\nand place where all bids received pursuant to such notice will be\npublicly opened and read. An employee of the corporation shall be\ndesignated to open the bids at the time and place specified in the\nnotice. All bids received shall be publicly opened and read at the time\nand place so specified. At least five days shall elapse between the\npublication of such advertisement and date on which the bids are opened.\n (b) Except as otherwise provided in section two hundred twenty-two of\nthe labor law, when the entire cost of constructing such building,\nexclusive of any medical equipment, apparatus or devices, shall exceed\none million five hundred thousand dollars, the project developer shall\nprepare separate specifications for the following subdivisions of such\nwork, so as to permit separate and independent bidding upon each\nsubdivision:\n (i) plumbing and gas fittings;\n (ii) steam heating, hot water heating, ventilating and air\nconditioning apparatus; and\n (iii) electric wiring and standard illuminating fixtures.\n (c) After public competitive bidding, the project developer shall\naward one or more separate contracts for each of the above subdivisions\nof such work, whenever separate specifications are required pursuant to\nparagraph (b) of this subdivision, and one or more contracts for the\nremainder of such work. The project developer may award such contracts\nat different times. Contracts awarded pursuant to this subdivision shall\nbe awarded by the project developer to the lowest responsible and\nresponsive bidder and shall be contracts of the project developer and\nnot of the corporation which shall have no obligation or liabilities,\nwhatsoever, thereunder. The project developer shall have the\nresponsibility for the supervision, coordination, and termination of\nsuch contracts, unless otherwise specified in contractual terms between\nthe project developer and the corporation.\n (c-1) Each bidder on a public work contract, where the preparation of\nseparate specifications is not required, shall submit with its bid a\nseparate sealed list that names each subcontractor that the bidder will\nuse to perform work on the contract, and the agreed-upon amount to be\npaid to each, for: (i) plumbing and gas fitting, (ii) steam heating, hot\nwater heating, ventilating and air conditioning apparatus and (iii)\nelectric wiring and standard illuminating fixtures. After the low bid is\nannounced, the sealed list of subcontractors submitted with such low bid\nshall be opened and the names of such subcontractors shall be announced,\nand thereafter any change of subcontractor or agreed-upon amount to be\npaid to each shall require the approval of the public owner, upon a\nshowing presented to the public owner of legitimate construction need\nfor such change, which shall be open to public inspection. Legitimate\nconstruction need shall include, but not be limited to, a change in\nproject specifications, a change in construction material costs, a\nchange to subcontractor status as determined pursuant to paragraph (e)\nof subdivision two of section two hundred twenty-two of the labor law,\nor the subcontractor has become otherwise unwilling, unable or\nunavailable to perform the subcontract. The sealed lists of\nsubcontractors submitted by all other bidders shall be returned to them\nunopened after the contract award.\n (d) In determining whether a prospective contractor is responsible and\nresponsive, the project developer may require that prospective\ncontractors:\n (i) have adequate financial resources or the ability to obtain such\nresources;\n (ii) be able to comply with the required or proposed delivery or\nperformance schedule;\n (iii) have a satisfactory record of performance;\n (iv) have the necessary organization, experience, operational\ncontrols, and technical skills, or the ability to obtain them;\n (v) have the necessary production, construction and technical\nequipment and facilities, or the ability to obtain them; and\n (vi) be eligible to receive an award under applicable laws and\nregulations and be otherwise qualified.\n (e) The project developer may reject any bid of a bidder which the\nproject developer determines to be nonresponsible or nonresponsive to\nthe advertisement for bids.\n (f) The project developer may, in its discretion, reject all bids, and\nmay revise bid specifications and may readvertise for bids as provided\nherein.\n (g) Only as used in this section:\n (i) "project developer" means any private corporation, partnership,\nlimited liability company, or individual, or combination thereof which\nhas submitted a proposal in response to a request for proposals;\n (ii) "construction" shall include reconstruction, rehabilitation or\nimprovement exclusive of the installation and assembly of any medical\nequipment, apparatus or device;\n (iii) "medical building" means that component of a medical project\nconstituting appurtenant structures or facilities necessary to house or\nrender the remaining components of the medical project operational.\nMedical building shall not include apparatus, equipment, devices,\nsystems, supplies or any combination thereof;\n (iv) "medical project" means any substantial durable apparatus,\nequipment, device or system, or any combination of the foregoing,\nincluding services necessary to install, erect, or assemble the\nforegoing and any appurtenant structures or facilities necessary to\nhouse or render the foregoing operational, to be used for the purpose of\ncare, treatment or diagnosis of disease or injury or the relief of pain\nand suffering of sick or injured persons. Medical projects shall not\ninclude ordinary supplies and equipment expended or utilized in the\ncustomary care and treatment of patients.\n 11. (a) For purposes of applying section eighty-seven of the public\nofficers law, to the corporation, the term "trade secrets" shall include\nmarketing strategy or strategic marketing plans, analyses, evaluations\nand pricing strategies or pricing commitments of the corporation,\nrelating to business development, which, if disclosed, would be likely\nto injure the competitive position of the corporation.\n (b) In addition to the matters listed in section one hundred five of\nthe public officers law, the corporation may conduct an executive\nsession for the purpose of considering marketing strategy or strategic\nmarketing plans, analyses, evaluations and pricing strategies of the\ncorporation, relating to business development, which, if disclosed,\nwould be likely to injure the competitive position of the corporation.\n