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S07745 Summary:

S07745 Actions:

S07745 Floor Votes:

S07745 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7745
 
                    IN SENATE
 
                                      June 4, 2014
                                       ___________
 
        Introduced  by  Sen. VALESKY -- read twice and ordered printed, and when
          printed to be committed to the Committee on Local Government
 
        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
        S. 7745                             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-
        S. 7745                             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
        S. 7745                             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.