NY Pub Auth L § 3303 (2021)
2021 New York Laws PBA - Public Authorities Article 10-C - New York Health Care Corporations Title 1 - Westchester County Health Care Corporation 3303 - Westchester County Health Care Corporation.

§  3303.  Westchester  county health care corporation. 1. (a) There is hereby created a state board to  be  known  as  the  Westchester  county health  care  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 which  eight  directors  shall  be  appointed  by the governor and seven directors shall be  appointed  by  the  legislature  of  the  county  of Westchester  subject  to  approval by the county executive. The governor shall make appointments to the corporation as follows:  three  directors from a recommendation submitted by the county executive; three directors from  a  recommendation  submitted  by  the legislature of the county of Westchester; one director,  who  shall  be  a  resident  of  Westchester county,  from a recommendation submitted by the speaker of the assembly; one director, who shall be a resident  of  Westchester  county,  from  a recommendation submitted by the temporary president of the senate.   The  terms  of  the initial voting 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 voting directors appointed by the governor upon the recommendation of the county executive shall be five years for  one, four  years  for  one  and three years for one. The terms of the initial voting directors appointed by the governor upon  the  recommendation  of the  legislature  of  the  county  shall be four years for two and three years for one. The terms of the initial voting  directors  appointed  by the  legislature of the county with the approval of the county executive shall be one year for three of such directors, two years  for  three  of such directors and three years for one of such directors.  (c)  Each  voting  director should possess a high degree of experience and knowledge in relevant fields and a high degree of  interest  in  the corporation.  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 four non-voting representatives which shall include the chief executive officer of  the  corporation  as  appointed  by  the voting directors of the board, one representative selected by the county executive,  one  selected  by the majority leader of the county board of legislators and one selected by the minority leader of the county  board of  legislators.  Such  representatives 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.   3.  (a) All voting directors shall continue to hold office until their successors are appointed and qualify. All subsequent appointments  shall be for a term of five years and may be eligible for reappointment.  (b) Vacancies occurring otherwise than by expiration of term of office shall  be  filled  for  the  unexpired  terms in the manner provided for original appointment. All directors and non-voting representatives shall continue to hold office until their successors are  appointed  and  have qualified.  Vacancies shall be filled in the same manner as provided for original appointment. Vacancies occurring otherwise than  by  expiration of  terms of office, shall be filled by appointment for unexpired terms. Members 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  or  opportunity  to  be heard  in person or by counsel in his or her defense, upon not less than ten days notice.    4. (a) The voting directors shall by majority vote select one  of  the fifteen   voting   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 voting directors may direct.  (b)   The   voting   directors,   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 the carrying out of 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 voting directors is present. No action shall be  taken  by  the corporation  except  pursuant  to  the  favorable vote of at least eight voting directors present at the meeting at which such action is taken.   5. 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 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  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 prescribed by law.   8.  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 nine and ten 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.   9. It is the intent of the legislature that overall cost should in all cases  be  a  major criterion in the selection of project developers for 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  and 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  chapter,  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  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 cost 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  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 subparagraph;  (b)  Prior to the issuance of a request for proposals pursuant to this paragraph, 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 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 in complying with  existing  labor  standards  and  recognizing  state  and federally approved apprentice  training  programs,  and  the  willingness  of  the project  developer  to  provide for meaningful participation of minority group persons and business enterprises in the conduct of the work;  (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  such   subparagraph   indicating   that   the corporation's requirements are met by such 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.   10.  Every contract entered into between the corporation and a project developer, pursuant to the provisions of paragraph  (d)  of  subdivision nine  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 and devices, is less than  one  million  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 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 one  million  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 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) 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"  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.   11. (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.