NY Pub Auth L § 3603 (2021)
2021 New York Laws PBA - Public Authorities Article 10-C - New York Health Care Corporations Title 5 - Clifton-Fine Health Care Corporation 3603 - Clifton-Fine Health Care Corporation.

§  3603.  Clifton-Fine health care corporation. 1. (a) There is hereby created a board to be known as the Clifton-Fine health care  corporation which  shall  be  a  body  corporate  and  politic constituting a public benefit corporation.  (b) The corporation shall be governed by eight voting directors to  be appointed  in  the following manner as follows: (i) four directors shall be appointed by the town supervisor of the town of Fine; and  (ii)  four directors  shall  be  appointed  by  the  town supervisor of the town of Clifton, the governing body of each town shall make  recommendations  to their  respective town supervisor pursuant to the recommendations of the board of the hospital for the initial directors,  and  pursuant  to  the recommendations   of   the  board  of  the  corporation  for  subsequent directors; provided, however, the town supervisors may  appoint  persons other   than  those  so  recommended.  Any  director  absent  for  three successive regular meetings shall be deemed to have  resigned  from  the board  of directors unless said director has submitted in writing to the chairperson of the board of directors  an  acceptable  reason  for  said absences. The first directors shall be appointed for the following terms from  the  first  day of January, two thousand as follows: one from each town for a term of one year, one from each town for a term of two years, one from each town for a term of three years and one from each town  for a term of four years. Subsequent appointments of directors shall be made in the same manner as set forth in this paragraph and for a term of five years.   All  directors  shall  continue  to  hold  office  until  their successors are appointed and qualified. The resignation of any  director shall be filed with the appointing authority and shall be effective when so  filed.  Vacancies  occurring otherwise than by expiration of term of office, shall be filled  in  the  same  manner  as  set  forth  in  this paragraph  by  the  supervisor  of the respective town for the unexpired term. Directors of the board may be removed from  office  for  the  same reasons and in the same manner as may be provided by law for the removal of  officers  of  a town. The powers of the board shall be vested in and exercised by the directors as heretofore set forth and the board  formed at  a meeting called for said purpose by the chairperson of the existing board of managers of the Clifton-Fine Hospital.  (c) Each voting director should possess a high degree of experience or knowledge in relevant fields  or  a  high  degree  of  interest  in  the corporation  and should reside in either the town of Clifton or the town of Fine. 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 three  non-voting  members:  one  non-voting  member shall  be the chief executive officer of the corporation as appointed by the voting directors of the board; and two other non-voting members  who shall  be  the  town  supervisors of the towns of Clifton and Fine. Such members 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, provided,  however,  when  the board is acting pursuant to its authority under subdivision four of this section  such  chief executive officer may be excluded from such meeting and access to any information regarding actions of the board pursuant to such subdivision may be denied to him or her.   3. (a) The voting directors shall by majority vote  elect  from  among its members annually a chairperson, a vice-chair to serve in the absence of  the  chairperson, a secretary and an assistant-secretary to serve in  the absence of the secretary. The first election shall be  held  at  the time of the first meeting of the members of the board.  (b)  The members shall receive no compensation for their services, but may be reimbursed for their actual and necessary  expenses  incurred  in connection  with  the  performance  of  their  official  duties  if  the corporation shall so provide by resolution for such cases.  (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 five voting directors is present. No action shall  be  taken  by  the corporation  except  pursuant  to  the  favorable  vote of at least five voting directors present at the meeting at which such action is taken.   4. 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 contractual rights, if any, of the chief executive officer.   5.  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 employee of the corporation or public  officer  elected to  his  or  her  office  pursuant  to  the  laws  of  the  state or any municipality thereof may serve as a voting member of the governing  body of the corporation during his or her term of office.   6.  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 as the corporation and the  towns  may  agree, and such terms and conditions may include reversion of said property and rights to the towns.   7.  Contracts  for  work,  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 eight and nine 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.   7-a. For the purposes of article fifteen-A of the executive law  only, the  authority  shall  be  deemed a state agency as that term is used in such article, and all contracts for procurement,  design,  construction, services,  and  materials  shall  be  deemed  state contracts within the meaning of that term as set forth in such article.   8. It is the intent of the legislature that overall  costs  should  in all  cases  by  a major criterion in the selection of project developers  for the 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. 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, a contract for  a  medical  project  entered  into between  the  corporation  and  any  project  developer pursuant to this article 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 costs  which  would become charges to the corporation, in whatever form, in return for the fulfillment by the  project  developer  for  the  full life-time  of  a  proposed  contract  including, as appropriate, but not limited to  the  cost  of  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 paragraph.  (b) 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 is  complying with  existing  labor  standards  and  recognizing  state  and federally approved apprentice training programs.  (c)  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.   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.   9.  Every contract entered into between the corporation and a  project developer,  pursuant  to  the provisions of paragraph (c) of subdivision eight 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 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 five hundred thousand dollars.  (a)  The  project  developer  shall  advertise  for  bids   for   such construction  contracts in the official newspaper or newspapers, if any, or otherwise in a newspaper or newspapers designated for  such  purpose. Such  advertisements  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 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  subdivisions  of such  work  set  forth in subparagraphs (i), (ii) and (iii) of paragraph (b) of this subdivision, 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 contract  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) 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.   10. (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.