Add Art 9-A §§149 - 149-g, St Fin L; amd §§1676 & 1680, Pub Auth L; amd §10.00, Loc Fin L
Relates to comprehensive delivery of infrastructure delivered between a public entity and a development entity consolidating at least two or more of design, construction, finance, operations and/or maintenance work, including construction manager or construction manager at risk; authorizes a public entity to pursue certain authorized projects; provides for project funding and authorizes the public entity to accept from any source any grant, donation, gift or other form of conveyance of land, money; provides for labor and public interest protections; makes related provisions.
STATE OF NEW YORK
________________________________________________________________________
3268
2025-2026 Regular Sessions
IN SENATE
January 24, 2025
___________
Introduced by Sen. COONEY -- read twice and ordered printed, and when
printed to be committed to the Committee on Procurement and Contracts
AN ACT to amend the state finance law, in relation to comprehensive
delivery; to amend the public authorities law, in relation to any
development entity for the purposes of development or operation of an
approved project for the purposes of comprehensive delivery; and to
amend the local finance law, in relation to a municipality, school
district or district corporation having the power to contract indebt-
edness for the purposes of implementing the provisions of article
nine-A of the state finance law
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative intent. The legislature hereby finds and
2 declares that there is a public need to accelerate delivery of energy
3 and infrastructure improvements to address critical needs of the state
4 and its political subdivisions, including: (i) achieving net zero emis-
5 sions state-wide by 2050; (ii) rapid development of affordable homes,
6 educational facilities and housing and access to high-speed broadband
7 internet; (iii) replenishment and improvement of core transportation,
8 aviation, transit and vertical infrastructure; (iv) clean water and
9 efficient sewer systems and waste technologies; (v) climate change miti-
10 gation and flood and grid resiliency; (vi) generating and enhancing
11 pro-labor jobs and attracting new talent to New York; (vii) bolstering
12 global investment and development in New York; (viii) increasing oppor-
13 tunities for small, minority-owned, women-owned and serviced disabled
14 veteran owned businesses; (ix) fully unlocking and enabling accelerated
15 access to federal funding for energy and infrastructure projects; and
16 (x) addressing the deferred maintenance crisis across New York's infras-
17 tructure. Authorizing a consolidated delivery approach that allows for
18 one or more of design, construction, finance, operations and/or mainte-
19 nance under a single contract can, where appropriate, more rapidly and
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01970-01-5
S. 3268 2
1 cost effectively result in the achievement of each of the foregoing
2 objectives and unlock access to federal capital requiring such statutory
3 authorization.
4 § 2. The state finance law is amended by adding a new article 9-A to
5 read as follows:
6 ARTICLE 9-A
7 COMPREHENSIVE DELIVERY
8 Section 149. Definitions.
9 149-a. Enabling authority.
10 149-b. Procurement.
11 149-c. Project funding.
12 149-d. Labor and public interest protections.
13 149-e. Comprehensive agreements.
14 149-f. Construction.
15 149-g. Severability.
16 § 149. Definitions. As used in this article, the following terms shall
17 have the following meanings:
18 1. "Authorized project" means infrastructure delivered under an inter-
19 im agreement and/or comprehensive agreement between a public entity and
20 a development entity consolidating at least two or more of design,
21 construction, finance, operations and/or maintenance work, including
22 construction manager or construction manager at risk under this article;
23 2. "Comprehensive agreement" means an agreement between a development
24 entity and a public entity for the delivery of an authorized project,
25 including at least those required provisions under this article;
26 3. "Infrastructure" means physical structures, improvements, equipment
27 and/or facilities, including any digital infrastructure, which support a
28 public purpose or objective of a public entity;
29 4. "Interim agreement" means the interim agreement, including a pre-
30 development agreement or memorandum of understanding or other binding
31 preliminary agreement, that may be entered into between the development
32 entity and the public entity pursuant to this article;
33 5. "Development entity" means any natural person, corporation, part-
34 nership, limited liability company including a special purpose vehicle,
35 joint venture, not-for-profit corporation or other business entity;
36 6. "Public entity" means the state and any agency, department or
37 authority thereof, any county, city, town, village or school district
38 and any other political subdivision, institution of higher education,
39 agency, corporation, instrumentality or authority of, or established by,
40 any of the foregoing; and
41 7. "Revenues" means all revenues, including, but not limited to,
42 income, earnings, interest payments, user fees, lease payments, allo-
43 cations, federal, state, regional and local appropriations or the appro-
44 priations or other funds available to any public entity, bond proceeds,
45 equity investments and/or service payments arising out of or in
46 connection with supporting the development and/or operation of a author-
47 ized project, including without limitation, money received as grants or
48 otherwise from the United States of America, from any public entity, or
49 from any agency or instrumentality of the foregoing in aid of such
50 facility.
51 § 149-a. Enabling authority. Subject to subdivision four of this
52 section, where it is determined by a public entity to be in the public
53 interest to pursue an authorized project, notwithstanding any law, rule,
54 or regulation to the contrary and in lieu of any other procurement or
55 acquisition process that may apply to an authorized project, such public
56 entity is authorized to:
S. 3268 3
1 1. establish necessary and appropriate procurement and delivery inter-
2 nal control policies, procedures, or guidelines to efficiently deliver
3 an authorized project. Such policies, procedures or guidelines must also
4 ensure open, competitive, transparent and robust selection basis of any
5 development entity for an authorized project;
6 2. enter into interim agreements, comprehensive agreements or any
7 other document or instrument that may be necessary or convenient to
8 deliver an authorized project pursuant to this article;
9 3. dedicate, make available, or convey any real, personal, tangible,
10 intangible and property interest that it has to a development entity for
11 an authorized project;
12 4. exercise governmental authorities or powers to support the delivery
13 of an authorized project; and
14 5. enable a development entity to perform under the terms of a compre-
15 hensive agreement, and subject to the limitations under this article,
16 functions normally undertaken by the government.
17 § 149-b. Procurement. 1. The public entity may hold one-on-one colla-
18 borative dialogue meetings with development entities during a procure-
19 ment for an authorized project to negotiate individually with each
20 development entity the terms of an interim and comprehensive agreement.
21 2. Any materials or data submitted to, made available to, or received
22 by the public entity, may be held confidential and not public record
23 until such time as a preferred proposer is awarded or the procurement is
24 terminated.
25 3. The public entity may receive, consider, evaluate and accept an
26 unsolicited proposal for an authorized project if the proposal addresses
27 the needs of a public entity and such public entity has published a
28 policy or procurement regulation for unsolicited proposals.
29 4. The public entity is authorized to pay, in exchange for receipt of
30 intellectual property from a proposer, a stipend to an unsuccessful
31 proposer or a proposer in a cancelled procurement for an authorized
32 project, in an amount and the terms determined appropriate by the public
33 entity.
34 5. The public entity may retain, by means of competitive negotiation
35 consultants and experts inside and outside the public sector to assist
36 in the procurement, evaluation, contracting, managing and negotiation of
37 authorized projects under this article.
38 6. The public entity may select a preferred proposer to serve as the
39 development entity for an approved project through a single or multi-
40 step procurement process on a best value basis.
41 7. For all infrastructure projects in excess of two hundred million
42 dollars (as adjusted by the consumer price index annually), all public
43 entities must conduct an assessment, which may be a value for money
44 assessment or equivalent, that quantitatively and qualitatively assesses
45 the most appropriate delivery model for such infrastructure project
46 comparing the cost, price, schedule, quality, long-term operations and
47 maintenance costs, future revenue streams to fund such infrastructure,
48 and relative benefits and challenges of design-bid-build procurement
49 methods to those authorized by this section.
50 § 149-c. Project funding. 1. Any lawful source of funding, revenue and
51 financing may be utilized by a public entity and development entity for
52 the development, maintenance and operations of an authorized project and
53 a public entity is authorized to pay a development entity a payment for
54 the availability of an authorized project, where such availability
55 payment is performance based and decreases where a development entity
56 fails to perform in accordance with a comprehensive agreement. Any
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1 public entity may authorize a development entity to perform any one or
2 more of the following: setting rates, collecting revenues, enforcing
3 collection, or retaining revenues from third parties and the general
4 public for the use of an authorized project, all of which will be
5 subject to limitations, constraints and parameters established by the
6 public entity in a comprehensive agreement. The comprehensive agreement
7 will prescribe the extent to which any such rates are subject to the
8 public entity's oversight and approval. A public entity may compensate a
9 development entity under an interim agreement for work performed and
10 work product produced.
11 2. The public entity may accept from any source any grant, donation,
12 gift, or other form of conveyance of land, money, other real or personal
13 property or other valuable thing made to the public entity for carrying
14 out the purposes of this article and may transfer such property to a
15 development entity under a comprehensive agreement.
16 3. Any comprehensive agreement may be for a term deemed reasonably
17 appropriate by a public entity to achieve the purpose of this article.
18 § 149-d. Labor and public interest protections. The intent of this
19 article is to enhance opportunities and improve wages for New York state
20 public and private sector labor participants.
21 1. Notwithstanding any provision of law to the contrary, all rights or
22 benefits, including terms and conditions of employment, and protection
23 of civil service and collective bargaining status of all employees of
24 existing state agencies and public authorities affected by the
25 provisions of this article, shall be preserved and protected. Nothing in
26 this article shall result in: the displacement of any currently employed
27 public employee or loss of position, including partial displacement such
28 as a reduction in the hours of non-overtime work, wages or employment
29 benefits, on an existing asset or result in the impairment of existing
30 collective bargaining agreements with respect to existing assets; or the
31 transfer of existing duties and functions currently performed by employ-
32 ees of existing state agencies or public authorities, in each case, on
33 existing assets, affected by the provisions of this article to a devel-
34 opment entity. Employees serving in positions in newly created titles
35 shall be assigned to the appropriate bargaining unit. Nothing in this
36 article shall be construed to affect:
37 (a) the existing rights of employees pursuant to an existing collec-
38 tive bargaining agreement; or
39 (b) the existing representational relationships among employee organ-
40 izations or the bargaining relationships between the employer and an
41 employee organization.
42 2. Every development entity which enters into an interim agreement or
43 comprehensive agreement pursuant to this article shall be subject to the
44 labor law requirements and minority and women owned business enterprise
45 requirements for design and construction provided under the New York
46 State Infrastructure Investment Act, as amended, for authorized projects
47 outside of New York city and the New York City Public Works Investment
48 Act, as amended, for authorized projects procured by the city of New
49 York as well as the following:
50 (a) the provisions of article eight of the environmental conservation
51 law;
52 (b) the provisions of all state and federal laws prohibiting discrimi-
53 nation and requiring the provision of equal employment opportunity;
54 (c) the provisions of article six of the public officers law post-a-
55 ward of an authorized project; and
S. 3268 5
1 (d) any other consistent local and state law and any applicable feder-
2 al law, rules and regulations which are otherwise required by law in
3 connection with the performance of public work and the work to which the
4 authorized project relates.
5 § 149-e. Comprehensive agreements. 1. A comprehensive agreement under
6 this section may provide, including but not limited to:
7 (a) planning, acquisition, financing, development, design,
8 construction, reconstruction, replacement, financing, improvement, main-
9 tenance, life-cycle work, management, repair, leasing and/or operation
10 of qualifying public infrastructure;
11 (b) payment of long-term performance-based payments and/or
12 construction milestone payments;
13 (c) requirements regarding setting, collecting, retaining, sharing and
14 enforcing user fees or rents;
15 (d) terms and conditions of indemnification of the development entity
16 by the public entity;
17 (e) a lease, license, or conveyance of a real, personal or intangible
18 property interests;
19 (f) appropriately sizing any performance and payment bonds relative to
20 the overall security package for the approved project;
21 (g) the provision of insurance policies either through the development
22 entity and/or the public entity;
23 (h) a security interest by the lenders in the comprehensive agreement
24 and the right of the development entity to pledge its interests and
25 revenues under the comprehensive agreement for the benefit of its lend-
26 ers;
27 (i) step-in rights for the public entity upon a default of the devel-
28 opment entity;
29 (j) enforcement and other policing issues, including any reimbursement
30 by the development entity for such services;
31 (k) provisions allowing the development entity or the public entity to
32 act on each other's behalf in acquiring parcels, including through
33 condemnation, required for the approved project; and
34 (l) any other provision deemed reasonably necessary to serve the
35 public purpose under this article.
36 2. A comprehensive agreement under this section shall provide for:
37 (a) appropriate and balanced risk allocation to maximize best value
38 for the approved project;
39 (b) a specific plan, where applicable, to ensure proper maintenance of
40 the qualifying public infrastructure throughout the term of the compre-
41 hensive agreement and a return of the infrastructure to the responsible
42 public entity, if applicable, in a specified condition in the comprehen-
43 sive agreement;
44 (c) compliance with applicable law and this article;
45 (d) grounds for default and termination and authorization of payment
46 of termination compensation;
47 (e) a date for completion of the applicable work required to deliver
48 the authorized project; and
49 (f) review and approval by the public entity of the development enti-
50 ty's plans and performance of the development and maintenance of the
51 authorized project.
52 3. The comprehensive agreement may provide for the development and/or
53 operation of phases or segments or multiple bundled projects under a
54 single comprehensive agreement.
55 4. Notwithstanding any other provision of law, the responsible public
56 entity may agree to or require use of arbitration or other alternative
S. 3268 6
1 dispute resolution procedures to resolve disputes with the development
2 entity.
3 5. Development entities shall not be subject to article one hundred
4 forty-five of the education law, provided, however all professional
5 services rendered by a development entity must be performed by licensed
6 persons as required under article one hundred forty-five of the educa-
7 tion law.
8 6. While public funding can be used to support payments under a
9 comprehensive agreement, the full faith and credit of the public entity
10 shall not be pledged to secure any financing of the development entity
11 by the election to take over the qualifying public infrastructure and
12 such availability or service payments shall not be treated as debt of
13 any public entity and no financing of a development entity will be
14 considered debt of any public entity and must be non-recourse to a
15 public entity.
16 7. In the event of termination of a comprehensive or interim agree-
17 ment, the authority and duties of the development entity shall cease,
18 except for any duties and obligations that extend beyond the termination
19 as provided in the comprehensive or interim agreement, and the qualify-
20 ing public infrastructure reverts to the public entity and shall be
21 dedicated to the public entity for public use.
22 § 149-f. Construction. The provisions of this article which are incon-
23 sistent with any other provision of state law shall be deemed to super-
24 sede such provision of law, and the provisions of this article shall be
25 controlling.
26 § 149-g. Severability. If any clause, sentence, paragraph, section or
27 part of this article shall be adjudged by any court of competent juris-
28 diction to be invalid and after exhaustion of all further judicial
29 review, the judgment shall not affect, impair or invalidate the remain-
30 der thereof, but shall be confined in its operation to the clause,
31 sentence, paragraph, section or part of this article directly involved
32 in the controversy in which the judgment shall have been rendered.
33 § 3. Paragraph (b) of subdivision 2 of section 1676 of the public
34 authorities law is amended by adding a new undesignated paragraph to
35 read as follows:
36 Any development entity for the purposes of development or operation of
37 an approved project pursuant to article nine-A of the state finance law.
38 § 4. Subdivision 1 of section 1680 of the public authorities law is
39 amended by adding a new undesignated paragraph to read as follows:
40 Any development entity for the purposes of development or operation of
41 an approved project pursuant to article nine-A of the state finance law.
42 § 5. The opening paragraph of section 10.00 of the local finance law
43 is designated paragraph a and a new paragraph b is added to read as
44 follows:
45 b. A municipality, school district or district corporation shall have
46 the power to contract indebtedness for the purposes of implementing the
47 provisions of article nine-A of the state finance law.
48 § 6. This act shall take effect immediately.
