§ 3628 — Erie County Medical Center Corporation

§ 3628. Erie County Medical Center Corporation. 1. (a) There is hereby\ncreated a state board to be known as the Erie County Medical Center\nCorporation, which shall be a body corporate and politic constituting a\npublic benefit corporation.\n (b) The corporation shall be governed by fifteen voting directors, of\nwhom eight directors shall be appointed by the governor and seven\ndirectors shall be appointed by the county executive of the county of\nErie. The governor shall make appointments to the corporation as\nfollows: three directors from a recommendation submitted by the county\nexecutive of the county of Erie; three directors from a recommendation\nsubmitted by the legislature of the county of Erie; one director, who\nshall be a resident of the county of Erie, from a recommendation\nsubmitted by the temporary president of the senate; and one director,\nwho shall be a resident of the county of Erie, from a recommendation\nsubmitted by the speaker of the assembly. The county executive of the\ncounty of Erie shall make seven appointments to the board with the\nadvice and consent of the legislature of the county of Erie.\n The terms of the initial directors appointed by the governor shall be\nfive years for such directors appointed upon recommendation of the\ntemporary president of the senate and the speaker of the assembly. The\nterms of the initial directors appointed by the governor upon the\nrecommendation of the county executive of the county of Erie shall be\nfive years for one, four years for one, and three years for one. The\nterms of the initial directors appointed by the governor upon the\nrecommendation of the legislature of the county of Erie shall be four\nyears for two and three years for one. The terms of the initial\ndirectors appointed by the county executive of the county of Erie shall\nbe one year for two of such directors, two years for three of such\ndirectors, and three years for two of such directors.\n (c) Each director shall possess a high degree of experience and\nknowledge in relevant fields and a high degree of interest in the\ncorporation. The appointment of any director to the corporation shall be\nbased in part on the objective of ensuring that the corporation includes\ndiverse and beneficial perspectives and experience, including, but not\nlimited to, those of business management, law, finance, medical or other\nhealth professionals or both, health sector workers, the patient or\nconsumer perspective, and residence in the western New York community.\n 2. There shall be four non-voting representatives, who shall include\nthe chief executive officer of the corporation appointed by the voting\ndirectors of the board, one selected by the Erie county executive, one\nselected by the majority leader of the Erie county legislature, and one\nmember selected by the minority leader of the Erie county legislature.\nSuch representatives shall have all of the rights and powers of the\ndirectors other than the right and power to vote, including, but not\nlimited to, the right to equal access to information.\n 3. All directors and non-voting representatives shall continue to hold\noffice until their successors are appointed and qualify. All subsequent\nappointments made upon the expiration of an initial term shall be for a\nterm of five years, and all appointees shall be eligible for\nreappointment. Vacancies occurring otherwise than by expiration of term\nof office shall be filled for the unexpired terms in the manner provided\nfor original appointment. Members of the board may be removed from\noffice by the board for inefficiency, neglect of duty, or misconduct in\noffice after the board has given such member a copy of the charges\nagainst him or her and an opportunity to be heard in person or by\ncounsel in his or her defense, upon not less than ten days notice.\n 4. (a) The directors shall, by majority vote, select one of the\nfifteen directors as the chairperson of the board. The chairperson shall\npreside over all meetings of the board and shall have such other duties\nas the directors may provide.\n (b) The voting directors and 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 carrying out 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 directors is present. No action shall be taken by the\ncorporation except pursuant to the favorable vote of at least eight\ndirectors present at the meeting at which such action is taken.\n (d) The members of the board or any committee thereof may participate\nin a meeting of such board or committee by means of a conference\ntelephone or similar communications equipment allowing all persons\nparticipating in the meeting to hear each other at the same time;\nparticipation by such means shall constitute presence in person at a\nmeeting.\n (e) Any action required or permitted to be taken by the board or any\ncommittee thereof may be taken without a meeting if all members of the\nboard or the committee consent in writing to the adoption of a\nresolution authorizing the action. The resolution and the written\nconsents thereto by the members of the board or committee shall be filed\nwith the minutes of the proceedings of the board or committee.\n 5. The voting directors shall select and shall determine the salary\nand benefits of the chief executive officer of the corporation. The\ndirectors shall have the authority to discharge the chief executive\nofficer with or without cause; provided, however, that removal without\ncause shall not prejudice the contract rights, if any, of the chief\nexecutive 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\nor in 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 shall have a chief executive officer, a secretary,\na treasurer, and such other officers as the board shall from time to\ntime provide; such officers shall exercise the duties provided by the\nboard or by this title.\n 8. 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 is\nor may be prescribed by law.\n 9. 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\nten and eleven 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\nthe same terms, conditions, and specifications at a lower price through\nsuch contractor.\n 10. It is the intent of the legislature that overall cost shall in all\ncases be a major criterion in the selection of project developers for\naward of contracts pursuant to this section and that, whenever\npractical, such contracts shall 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 and diagnostic and treatment devices, the relative\nnewness of a variety of devices, processes, and procedures now\navailable, the desirability of a single point of responsibility for the\ndevelopment of medical treatment and diagnostic facilities, and the\neconomic and technical utility of contracts for medical projects which\ninclude in their scope various combinations of design, construction,\noperation, management, or maintenance responsibility, or any combination\nthereof, over prolonged periods of time, and to acknowledge that, in\nsome instances, it may be beneficial to the corporation to award a\ncontract for a medical project on the basis of factors other than cost\nalone, 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 charter, 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 an 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 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 required by a proposed contract;\n (ii) a proposal clearly identifying and specifying all elements of\ncosts which would become charges to the corporation, in whatever form,\nin return for the fulfillment by the project developer for the full\nlifetime of a proposed contract, including, as appropriate, but not\nlimited to, the cost of planning, design, construction, operation,\nmanagement, or maintenance, or any combination thereof, of any facility,\nand clearly identifying and specifying all elements of revenue which\nwould accrue to the corporation from the operation of the facility or\ndevice or from any other source; provided that the corporation may\nprescribe the form and content of such proposal and that, in any event,\nthe project developer must submit sufficiently detailed information to\npermit a fair and equitable evaluation by the corporation of such\nproposal; and provided, further, that the corporation may set maximum\nallowable cost limits in any 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 paragraph;\n (b) Prior to the issuance of a request for proposals pursuant to this\nsubdivision, 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 or not a\nproject developer is "responsible" may include, but shall not be limited\nto, consideration, in a manner consistent with provisions set forth in\nthe request for proposals, of the record of the project developer in\ncomplying with existing labor standards and recognizing state and\nfederally approved apprentice training programs and consideration of the\nwillingness of the project developer to provide for meaningful\nparticipation of minority group persons and business enterprises in the\nconduct of the work; and\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\nany award 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 paragraph (c) of this subdivision indicating that\nthe corporation's requirements are met by 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\nprovisions of section two hundred twenty of the labor law shall be\napplicable to such construction work.\n 11. Every contract entered into between the corporation and a project\ndeveloper, pursuant to the provisions of paragraph (d) of subdivision\nten 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, apparatus, and devices, is less than 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 the date on which the bids are\nopened.\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, exceeds five\nhundred thousand dollars, the project developer shall prepare separate\nspecifications for the following subdivisions of such work, so as to\npermit separate and independent bidding upon each subdivision:\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 or not a prospective contractor is\nresponsible and responsive, the project developer may require that\nprospective contractors:\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 if the\nproject developer determines the bidder to be non-responsible or the bid\nnon-responsive to the advertisement for bids.\n (f) The project developer may, in its discretion, reject all bids, may\nrevise bid specifications, and may re-advertise for bids as provided in\nthis subdivision for original advertisements.\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" includes 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 does not include apparatus, equipment, devices,\nsystems, supplies, or any combination thereof; and\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 do not\ninclude ordinary supplies and equipment expended or utilized in the\ncustomary care and treatment of patients.\n 12. (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, including strategic alliances and\ncontracts for managed care and other network arrangements, capitation\ncontracts, and other similar arrangements relating to business\ndevelopment which, if disclosed, would be likely to injure the\ncompetitive 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 or\npricing commitments of the corporation relating to business development,\nincluding strategic alliances and contracts for managed care and other\nnetwork arrangements, capitation contracts, and other similar\narrangements relating to business development which, if disclosed, would\nbe likely to injure the competitive position of the corporation.\n 13. The county shall provide the corporation with full funding of the\nnetwork's existing capital program for the years two thousand four, two\nthousand five, and two thousand six, as authorized in the county's two\nthousand three capital budget.\n