Creates Onondaga Lake Amphitheater Infrastructure and Revitalization Project; provides for the construction of a performing arts amphitheater known as the "Onondaga Lake Amphitheater" located in the town of Geddes on the western shore of Onondaga Lake.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9964
SPONSOR: Rules (Magnarelli) TITLE OF BILL: An act creating the Onondaga Lake Amphitheater Infras-
tructure and Revitalization Project; and providing for the repeal of
such provisions upon expiration thereof
PURPOSE OR GENERAL IDEA OF BILL:
To facilitate the construction of a performing arts amphitheater known
as the Onondaga Lake Amphitheater located in the Town of Geddes on the
western shore of Onondaga Lake.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill identifies the act as the "Onondaga Lake Amphi-
theater Infrastructure and Revitalization Project.
Section 2 of the bill sets forth definitions for "Onondaga Lake Amphi-
theater Infastructure and Revitalization Project" or "Project"; "Coun-
ty"; "Best value"; "Design-build contract"; "Procurement record"; and
"Project labor agreement".
Section 3 of the bill permits Onondaga County to utilize a design-build
contract for the construction of the Onondaga Lake Amphitheater. The
authorization set forth in this section shall only apply when a project
labor agreement is performed.
Section 4 of the bill establishes a two-step method to select an entity
to enter into a design-build contract. First, the county shall advertise
a request for qualifications which will include the selection criteria
used in generating a list of entities capable to perform a design-build
contract. The selection criteria shall include the qualifications and
experience of the design and construction team, past record of compli-
ance with the labor law, record of protecting the health and safety of
workers, financial capability, reliability, compliance with equal
employment opportunity requirements and anti-discrimination laws,
commitment to working with minority and women-owned businesses, and
whether the entity is debarred for having disregarded obligations to
employees under federal law. Next, the county shall issue a request for
proposals to the entities that have demonstrated the criteria in
response to the request for qualifications. The proposal which is the
best value to the county shall be selected. Any person or entity that is
debarred for having disregarded obligations to employees under federal
law, and any firm, corporation, partnership or association in which the
person or entity owns or controls at least ten percent shall be ineligi-
ble to submit a bid.
Section 5 of the bill requires that any contract entered into pursuant
to this act shall include a provision requiring that any professional
engineering and land surveying services, architecture services, and
landscape architecture services shall be performed and stamped and
sealed, where appropriate, by such licensed professional.
Section 6 of the bill provides that the project shall be deemed a public
work to be performed in accordance with article 8 of the labor law
including the enforcement of prevailing wage reqirements.
Section 7 of the bill provides that a project labor agreement shall be
included in the request for proposals for the project, provided that
based upon a study, the county determines that its interest in obtaining
the best work at the lowest possible price and other considerations are
best met by requiring a project labor agreement. In the absence of a
project labor agreement, the county shall not utilize a design-build
contract and the traditional competitive bidding laws shall apply.
Section 8 of the bill states that each contract entered into by the
county shall comply, whenever practical, with the objectives and goals
of minority and women-owned business enterprises pursuant to the execu-
tive law.
Section 9 of the bill provides that the project shall be subject to the
environmental quality review standards set forth in the environmental
conservation law.
Section 10 of the bill states that if otherwise applicable the project
shall be governed by the general municipal law.
Section 11 of the bill provides that submissions of a proposal or the
execution of a design-build contract shall not be considered an unau-
thorized practice under the education law.
Section 12 of the bill states that nothing contained in the act shall
limit the right or obligation of the county to comply with the
provisions of any existing contract or to award contracts as otherwise
provided by law.
Section 13 of the bill provides for an immediate effective date and
states that the act shall expire in two years.
EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER:
The design-bid-build method of procurement has traditionally applied to
New York's public works projects. Under this method, separate contracts
are awarded for the design and construction of a project. With impor-
tant labor protections in place, including a project labor agreement,
this bill permits Onondaga county to utilize a design build contract
whereby the design and construction are performed by a single entity.
JUSTIFICATION:
The Onondaga Lake Amphitheater Infrastructure and Revitalization Project
offers an opportunity to spur economic activity in the Onondaga Lake
region. When utilized with important labor safeguards, including project
labor agreements, design-build contracts offer the potential to expedite
development. This act will help create important construction jobs,
provide an economic boost for our citizens, and generate tourism.
PRIOR LEGISLATIVE HISTORY:
New bill.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
Unknown.
EFFECTIVE DATE:
Immediately
STATE OF NEW YORK
________________________________________________________________________
9964
IN ASSEMBLY
June 3, 2014
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Magnarelli)
-- read once and referred to the Committee on Local Governments
AN ACT creating the Onondaga Lake Amphitheater Infrastructure and Revi-
talization Project; and providing for the repeal of such provisions
upon expiration thereof
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "Onondaga
2 Lake Amphitheater Infrastructure and Revitalization Project act".
3 § 2. Definitions. For the purposes of this act, the following terms
4 shall have the following meanings:
5 1. "Onondaga Lake Amphitheater Infrastructure and Revitalization
6 Project" or "project" shall mean, in conformity with the requirements of
7 this act, the construction of a performing arts amphitheater known as
8 the "Onondaga Lake Amphitheater" located in the Town of Geddes on the
9 western shore of Onondaga Lake that is part of the Onondaga County Revi-
10 talization project which was partially funded in the 2014 New York state
11 budget.
12 2. "County" shall mean the county of Onondaga.
13 3. "Best value" shall mean the basis for awarding contracts for
14 services to the bidder that optimize quality, cost and efficiency, price
15 and performance criteria, which may include, but is not limited to:
16 (a) The quality of the contractor's performance on previous projects;
17 (b) The timeliness of the contractor's performance on previous
18 projects;
19 (c) The level of customer satisfaction with the contractor's perform-
20 ance on previous projects;
21 (d) The contractor's record of performing previous projects on budget
22 and ability to minimize cost overruns;
23 (e) The contractor's ability to limit change orders;
24 (f) The contractor's ability to prepare appropriate project plans;
25 (g) The contractor's technical capacities;
26 (h) The individual qualifications of the contractor's key personnel;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD15474-01-4
A. 9964 2
1 (i) The contractor's ability to assess and manage risk and minimize
2 risk impact; and
3 (j) The contractor's past record of encouraging women and minority-
4 owned business enterprise participation and compliance with article 15-A
5 of the executive law.
6 Such basis shall reflect, wherever possible, objective and quantifi-
7 able analysis.
8 4. "Design-build contract" shall mean, in conformity with the require-
9 ments of this act, a contract for the design and construction of the
10 Onondaga Lake Amphitheater Infrastructure and Revitalization Project
11 with a single entity, which may be a team comprised of separate enti-
12 ties.
13 5. "Procurement record" shall mean documentation of the decisions made
14 and the approach taken in the procurement process.
15 6. "Project labor agreement" shall mean a pre-hire collective bargain-
16 ing agreement between a contractor and a bona fide building and
17 construction trade labor organization establishing the labor organiza-
18 tion as the collective bargaining representative for all persons who
19 will perform work on the project, and which provides that only contrac-
20 tors and subcontractors who sign a pre-negotiated agreement with the
21 labor organization can perform project work.
22 § 3. Notwithstanding section 103 of the general municipal law or the
23 provisions of any other law to the contrary, in conformity with the
24 requirements of this act, and only when a project labor agreement is
25 performed, the county may utilize the alternative delivery method
26 referred to as a design-build contract for the project. The county shall
27 ensure that its procurement record reflects the design-build contract
28 process authorized by this act.
29 § 4. An entity selected by the county to enter into a design-build
30 contract for the project shall be selected through a two-step method, as
31 follows:
32 1. Step one. Generation of a list of entities that have demonstrated
33 the general capability to perform a design-build contract for the
34 project. Such list shall consist of a specified number of entities, as
35 determined by the county, and shall be generated based upon the county's
36 review of responses to a publicly advertised request for qualifications
37 for the project. The county's request for qualifications for the project
38 shall include a general description of the project, the maximum number
39 of entities to be included on the list, and the selection criteria to be
40 used in generating the list. Such selection criteria shall include the
41 qualifications and experience of the design and construction team,
42 organization, demonstrated responsibility, ability of the team or of a
43 member or members of the team to comply with applicable requirements,
44 including the provisions of articles 145, 147 and 148 of the education
45 law, past record of compliance with the labor law including prevailing
46 wage requirements under state and federal law; the past record of
47 compliance with existing labor standards and maintaining harmonious
48 labor relations; the record of protecting the health and safety of work-
49 ers on public works projects and job sites as demonstrated by the expe-
50 rience modification rate for each of the last three years; the prospec-
51 tive bidder's ability to undertake the particular type and complexity of
52 work; the financial capability, responsibility and reliability of the
53 prospective bidder for such type and complexity of work; the prospective
54 bidder's compliance with equal employment opportunity requirements and
55 anti-discrimination laws, and demonstrated commitment to working with
56 minority and women-owned businesses through joint ventures or subcon-
A. 9964 3
1 tractor relationships; whether or not the prospective bidder or a person
2 or entity with an interest of at least ten per centum in the prospective
3 bidder, is debarred for having disregarded obligations to employees
4 under the Davis-Bacon Act pursuant to 40 U.S.C. 3144 and 29 C.F.R. 5.12
5 and such other qualifications the county deems appropriate which may
6 include but are not limited to project understanding, financial capabil-
7 ity and record of past performance. The county shall evaluate and rate
8 all entities responding to the request for qualifications. Based upon
9 such ratings, the county shall list the entities that shall receive a
10 request for proposals in accordance with subdivision two of this
11 section. To the extent consistent with applicable federal law, the coun-
12 ty shall consider, when awarding any contract pursuant to this section,
13 the participation of: (a) firms certified pursuant to article 15-A of
14 the executive law as minority or women-owned businesses and the ability
15 of other businesses under consideration to work with minority and
16 women-owned businesses so as to promote and assist participation by such
17 businesses; and (b) small business concerns identified pursuant to
18 subdivision (b) of section 139-g of the state finance law.
19 2. Step two. Selection of the proposal which is the best value to the
20 county. The county shall issue a request for proposals for the project
21 to the entities listed pursuant to subdivision one of this section. If
22 such an entity consists of a team of separate entities, the entities
23 that comprise such a team must remain unchanged from the entity as list-
24 ed pursuant to subdivision one of this section unless otherwise approved
25 by the county. The request for proposals for the project shall set forth
26 the project's scope of work, and other requirements, as determined by
27 the county. The request for proposals shall specify the criteria to be
28 used to evaluate the responses and the relative weight of each such
29 criteria. Such criteria shall include the proposal's cost, the quality
30 of the proposal's solution, the qualifications and experience of the
31 design-build entity, and other factors deemed pertinent by the county,
32 which may include, but shall not be limited to, the proposal's project
33 implementation, ability to complete the work in a timely and satisfac-
34 tory manner, maintenance costs of the completed project, maintenance of
35 traffic approach, and community impact. Any contract awarded pursuant to
36 this act shall be awarded to a responsive and responsible entity that
37 submits the proposal, which, in consideration of these and other speci-
38 fied criteria deemed pertinent to the project, offers the best value to
39 the county, as determined by the county. Nothing in this act shall be
40 construed to prohibit the county from negotiating final contract terms
41 and conditions including cost.
42 3. Notwithstanding the foregoing provisions of this section, when any
43 person or entity is debarred for having disregarded obligations to
44 employees under the Davis-Bacon Act pursuant to 40 U.S.C. 3144 and 29
45 C.F.R. 5.12, such person or entity, and any firm, corporation, partner-
46 ship or association in which the person or entity owns or controls at
47 least ten per centum, shall be ineligible to submit a bid on or be
48 awarded any contract authorized by this act while the name of the person
49 or entity is published in the list of debarred contractors pursuant to
50 40 U.S.C. 3144. The department of labor will notify the person or entity
51 immediately of such ineligibility and such person or entity must be
52 afforded the opportunity to appeal to the department of labor.
53 § 5. Any contract entered into pursuant to this act shall include a
54 clause requiring that any professional services regulated by articles
55 145, 147 and 148 of the education law shall be performed and stamped and
A. 9964 4
1 sealed, where appropriate, by a professional licensed in accordance with
2 such articles.
3 § 6. The construction, demolition, reconstruction, excavation, reha-
4 bilitation, repair, renovation of the project undertaken by the county
5 pursuant to this act shall be deemed a "public work" to be performed in
6 accordance with the provisions of article 8 of the labor law, as well as
7 subject to sections 200, 240, 241 and 242 of the labor law and enforce-
8 ment of prevailing wage requirements by the New York state department of
9 labor.
10 § 7. A project labor agreement shall be included in the request for
11 proposals for the project, provided that, based upon a study done by or
12 for the county, the county determines that its interest in obtaining the
13 best work at the lowest possible price, preventing favoritism, fraud and
14 corruption, and other considerations such as the impact of delay, the
15 possibility of cost savings advantages, and any local history of labor
16 unrest, are best met by requiring a project labor agreement. The county
17 shall conduct such a study and the project labor agreement shall be
18 performed consistent with the provisions of section 222 of the labor
19 law. If a project labor agreement is not performed on the project; (1)
20 the county shall not utilize a design-build contract for the project;
21 and (2) sections 101 and 103 of the general municipal law shall apply to
22 the project.
23 § 8. Each contract entered into by the county pursuant to this act
24 shall comply, whenever practical, with the objectives and goals of
25 minority and women-owned business enterprises pursuant to article 15-A
26 of the executive law or, if the project receives federal aid, shall
27 comply with applicable federal requirements for disadvantaged business
28 enterprises.
29 § 9. The project undertaken by the county pursuant to this act shall
30 be subject to the requirements of article 8 of the environmental conser-
31 vation law, and, where applicable, the requirements of the national
32 environmental policy act.
33 § 10. If otherwise applicable, the project undertaken by the county
34 pursuant to this act shall be governed by the general municipal law.
35 § 11. The submission of a proposal or responses or the execution of a
36 design-build contract pursuant to this act shall not be construed to be
37 a violation of section 6512 of the education law.
38 § 12. Nothing contained in this act shall limit the right or obli-
39 gation of the county to comply with the provisions of any existing
40 contract, including any existing contract with or for the benefit of the
41 holders of the obligations of the county, or to award contracts as
42 otherwise provided by law.
43 § 13. This act shall take effect immediately and shall expire and be
44 deemed repealed two years after such date, provided that, if Onondaga
45 county has issued requests for qualifications for the project prior to
46 such repeal, such project shall be permitted to continue under this act
47 notwithstanding such repeal.
