§ 3628. Erie County Medical Center Corporation. 1. (a) There is hereby
created a state board to be known as the Erie County Medical Center
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
whom eight directors shall be appointed by the governor and seven
directors shall be appointed by the county executive of the county of
Erie. The governor shall make appointments to the corporation as
follows: three directors from a recommendation submitted by the county
executive of the county of Erie; three directors from a recommendation
submitted by the legislature of the county of Erie; one director, who
shall be a resident of the county of Erie, from a recommendation
submitted by the temporary president of the senate; and one director,
who shall be a resident of the county of Erie, from a recommendation
submitted by the speaker of the assembly. The county executive of the
county of Erie shall make seven appointments to the board with the
advice and consent of the legislature of the county of Erie.

The terms of the initial 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 directors appointed by the governor upon the
recommendation of the county executive of the county of Erie shall be
five years for one, four years for one, and three years for one. The
terms of the initial directors appointed by the governor upon the
recommendation of the legislature of the county of Erie shall be four
years for two and three years for one. The terms of the initial
directors appointed by the county executive of the county of Erie shall
be one year for two of such directors, two years for three of such
directors, and three years for two of such directors.

(c) Each director shall possess a high degree of experience and
knowledge in relevant fields and a high degree of interest in the
corporation. The appointment of any 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 or other
health professionals or both, health sector workers, the patient or
consumer perspective, and residence in the western New York community.

2. There shall be four non-voting representatives, who shall include
the chief executive officer of the corporation appointed by the voting
directors of the board, one selected by the Erie county executive, one
selected by the majority leader of the Erie county legislature, and one
member selected by the minority leader of the Erie county legislature.
Such representatives shall have all of the rights and powers of the
directors other than the right and power to vote, including, but not
limited to, the right to equal access to information.

3. All directors and non-voting representatives shall continue to hold
office until their successors are appointed and qualify. All subsequent
appointments made upon the expiration of an initial term shall be for a
term of five years, and all appointees shall be eligible for
reappointment. Vacancies occurring otherwise than by expiration of term
of office shall be filled for the unexpired terms in the manner provided
for original appointment. Members of the board 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 and an opportunity to be heard in person or by
counsel in his or her defense, upon not less than ten days notice.

4. (a) The directors shall, by majority vote, select one of the
fifteen 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 directors may provide.

(b) The voting directors and 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 carrying out 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 directors is present. No action shall be taken by the
corporation except pursuant to the favorable vote of at least eight
directors present at the meeting at which such action is taken.

(d) The members of the board or any committee thereof may participate
in a meeting of such board or committee by means of a conference
telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time;
participation by such means shall constitute presence in person at a
meeting.

(e) Any action required or permitted to be taken by the board or any
committee thereof may be taken without a meeting if all members of the
board or the committee consent in writing to the adoption of a
resolution authorizing the action. The resolution and the written
consents thereto by the members of the board or committee shall be filed
with the minutes of the proceedings of the board or committee.

5. The voting directors shall select and shall determine the salary
and benefits of the chief executive officer of the corporation. The
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 shall have a chief executive officer, a secretary,
a treasurer, and such other officers as the board shall from time to
time provide; such officers shall exercise the duties provided by the
board or by this title.

8. 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 is
or may be prescribed by law.

9. 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
ten and eleven 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.

10. It is the intent of the legislature that overall cost shall in all
cases be a major criterion in the selection of project developers for
award of contracts pursuant to this section and that, whenever
practical, such contracts shall 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 and 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, or maintenance responsibility, or any combination
thereof, over prolonged periods of time, and to acknowledge 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 charter, 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 an 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 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 required 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
lifetime of a proposed contract, including, as appropriate, but not
limited to, the cost of planning, design, construction, operation,
management, or maintenance, or any combination thereof, 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) Prior to the issuance of a request for proposals pursuant to this
subdivision, 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 or not 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, of the record of the project developer in
complying with existing labor standards and recognizing state and
federally approved apprentice training programs and consideration of the
willingness of the project developer to provide for meaningful
participation of minority group persons and business enterprises in the
conduct of the work; and

(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 paragraph (c) of this subdivision indicating that
the corporation's requirements are met by 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.

11. Every contract entered into between the corporation and a project
developer, pursuant to the provisions of paragraph (d) of subdivision
ten 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, apparatus, and devices, is less than 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 the 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, exceeds 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 or not 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 if the
project developer determines the bidder to be non-responsible or the bid
non-responsive to the advertisement for bids.

(f) The project developer may, in its discretion, reject all bids, may
revise bid specifications, and may re-advertise for bids as provided in
this subdivision for original advertisements.

(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" includes 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 does not include apparatus, equipment, devices,
systems, supplies, or any combination thereof; and

(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 do not
include ordinary supplies and equipment expended or utilized in the
customary care and treatment of patients.

12. (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, including strategic alliances and
contracts for managed care and other network arrangements, capitation
contracts, and other similar arrangements 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 or
pricing commitments of the corporation relating to business development,
including strategic alliances and contracts for managed care and other
network arrangements, capitation contracts, and other similar
arrangements relating to business development which, if disclosed, would
be likely to injure the competitive position of the corporation.

13. The county shall provide the corporation with full funding of the
network's existing capital program for the years two thousand four, two
thousand five, and two thousand six, as authorized in the county's two
thousand three capital budget.