§ 634. Alternative project delivery contracts. 1. Notwithstanding any
provision of law to the contrary, including but not limited to section
seventy-two hundred ten of the education law, and in conformity with the
requirements of this article, for any public work undertaken pursuant to
a project labor agreement the trust may use alternative project delivery
contracts, provided that the authority to advertise a request for
qualification in accordance with this section shall expire five years
after the effective date of this section.

(a) A contractor selected by the trust to enter into an alternative
project delivery contract may be selected through a two-step method, as
follows:

(1) Step one. The first step shall be the generation of a list of
responding entities that have demonstrated the general capability to
perform the alternative project delivery contract. Such list shall
consist of a specified number of responding entities, as determined by
the trust, and shall be generated based upon the trust's review of
responses to a publicly advertised request for qualifications. The
trust's request for qualifications shall include a general description
of the public work, the maximum number of responding entities to be
included on such list, the selection criteria to be used and the
relative weight of each criteria in generating such list. Such selection
criteria shall include the qualifications and experience of the entity
or team of entities, organization, demonstrated responsibility, ability
of the entity or team of entities or of a member or members of the
entity or team of entities to comply with applicable requirements,
including the provisions of articles one hundred forty-five, one hundred
forty-seven and one hundred forty-eight of the education law, past
record of compliance with the labor law, and such other qualifications
the trust deems appropriate, which may include but are not limited to
project understanding, financial capability and record of past
performance. The trust shall evaluate and rate all responding entities
to the request for qualifications. Based upon such ratings, the trust
shall list the responding entities that shall receive a request for
proposals in accordance with subparagraph two of this paragraph. To the
extent consistent with applicable federal law, the trust shall consider,
when awarding any contract pursuant to this section, the participation
of (i) responding entities that are certified as minority or women owned
business enterprises pursuant to article fifteen-A of the executive law,
or certified pursuant to local law as minority or women owned business
enterprises, (ii) small business concerns identified pursuant to
subdivision (b) of section one hundred thirty-nine-g of the state
finance law, and (iii) business concerns that provide economic
opportunities for low and very low-income persons in accordance with
section three of the federal housing and urban development act of
nineteen hundred sixty-eight, as amended, or any successor provision. In
addition, nothing in this section shall be deemed to supersede any
prequalification policies adopted by the trust pursuant to section six
hundred thirty-three of this article.

(2) Step two. The second step shall be the selection of the proposal
which is the best value to the trust. The trust shall issue a request
for proposals to the responding entities listed pursuant to subparagraph
one of this paragraph. If such a responding entity consists of a team of
separate entities, the entities that comprise such a team shall remain
unchanged from the responding entity as listed pursuant to subparagraph
one of this paragraph unless otherwise approved by the trust. The
request for proposals shall set forth the public work's scope of work,
and other requirements, as determined by the trust, which may include
separate goals for work under the contract to be performed by businesses
certified as minority or women owned business enterprises pursuant to
article fifteen-A of the executive law, or certified pursuant to local
law as minority or women owned business enterprises, or goals
established pursuant to section three of the federal housing and urban
development act of nineteen hundred sixty-eight, as amended, or any
successor provision, if applicable. The request for proposals shall also
specify the criteria to be used to evaluate the responses and the
relative weight of each of such criteria. Such criteria shall include:
the quality of the proposal's solution; the qualifications and
experience of the proposer; the proposal's cost, which may include
factors that may be considered individually or in the aggregate, such as
the proposed cost of design phase work, the proposed cost of
construction phase work, or cost factors relating to construction phase
work, as applicable; and other factors deemed pertinent by the trust,
which may include, but shall not be limited to, the proposal's manner
and schedule of project implementation, the proposer's ability to
complete the work in a timely and satisfactory manner, maintenance costs
of the completed public work, maintenance of traffic approach, and
community impact. The trust may engage in negotiations or other
discussions with all qualified vendors that have expressed interest,
provided that the trust maintains a written record of the conduct of
negotiations or discussions and the basis for every determination to
continue or suspend negotiations, and further provided that if the trust
determines for a particular contract or for a particular type of
contract that it is in the trust's best interest to negotiate or enter
into discussions with fewer proposers, it may make such a determination
in writing. If the trust enters into such negotiations, the trust shall
allow all proposers to revise their proposals upon conclusion of
negotiations, and the trust shall evaluate the proposers' revised
proposals using the criteria included in the request for proposals. Any
contract awarded pursuant to this section shall be awarded to a
responsive and responsible proposer, which, in consideration of these
and other specified criteria deemed pertinent, offers the best value as
determined by the trust. The request for proposals shall include a
statement that proposers shall designate in writing those portions of
the proposal that contain trade secrets or other proprietary information
that are to remain confidential, so that the material designated as
confidential shall be readily separable from the proposal. Nothing in
this subdivision shall be construed to prohibit the trust from
negotiating final contract terms and conditions including cost. All
proposals submitted shall be scored according to the criteria listed in
the request for proposals and such final scores shall be published on
the trust's website after the date upon which such contract may be
implemented.

(b) The trust, in awarding an alternative project delivery contract to
a contractor offering the best value may use the following types of
contracts:

(1) a cost-plus not to exceed guaranteed maximum price form of
contract in which the trust shall be entitled to monitor and audit all
costs. In establishing the schedule and process for determining a
guaranteed maximum price, the contract between the trust and the
contractor shall include terms specifying the price for the design phase
of the work, the scope of the work, and any applicable cost factors
relating to construction phase work that were included in the
contractor's proposal. A fair and reasonable guaranteed maximum price
for the construction phase of the work, or portions of the construction
phase of the work, may be agreed to as one or more amendments to such
contract based on developments in the design of the project that occur
after such contract is executed. Each guaranteed maximum price amendment
shall: (i) describe the scope of the portion of the construction phase
work subject to the amendment, the cost of performing such work, and the
maximum costs of any contingencies related to such work, (ii) include a
detailed line item cost breakdown, (iii) include a list of all drawings,
specifications and other information on which the guaranteed maximum
price is based, (iv) include the dates of substantial and final
completion on which the guaranteed maximum price is based, as
applicable, and (v) include a schedule of unit prices. The trust shall
maintain a written record of each guaranteed maximum price amendment,
which shall include a summary of the negotiation process and a
description of the relevant developments in the design of the project,
independent cost estimates prepared by or on behalf of the trust, as
required pursuant to a policy established by the trust, the contractor's
actual cost schedules and unit prices, and any other factors that the
trust considered. If the trust and the contractor cannot agree upon a
guaranteed maximum price for one or more portions of construction phase
work, the trust may direct the contractor to assign all or a portion of
the duties and rights under such alternative project delivery contract
to another responsive and responsible proposer pursuant to subparagraph
two of paragraph (a) of this subdivision that offered the best value of
the remaining proposers and that will agree to accept such assignment.
This subparagraph shall not be deemed to prohibit the use of any
contract terms or procedures pursuant to any other provision of law,
including but not limited to provisions included in this article;

(2) a lump sum contract in which the contractor agrees to accept a set
dollar amount for a contract which comprises a single bid without
providing a cost breakdown for all costs such as for equipment, labor,
materials, as well as such contractor's profit for completing all items
of work comprising the public work;

(3) incentive payments identified in the text of the contract for
performance objectives; or

(4) a combination of elements of the contract types listed herein.

2. All alternative project delivery contracts entered into pursuant to
this section shall include a clause requiring that any professional
services regulated by articles one hundred forty-five, one hundred
forty-seven and one hundred forty-eight of the education law shall be
performed and stamped and sealed, where appropriate, by a professional
licensed in accordance with the appropriate article.

3. The submission of a proposal or responses or the execution of an
alternative project delivery contract pursuant to this article shall not
be construed to be a violation of section six thousand five hundred
twelve of the education law.

4. Each alternative project delivery contract entered into by the
trust pursuant to this article shall comply with the objectives and
goals relating to the performance of design and construction services by
minority and women owned business enterprises pursuant to section 6-129
of the administrative code of the city of New York, or, for projects or
public works receiving federal aid, applicable federal requirements for
disadvantaged business enterprises or minority and women owned business
enterprises and section three of the federal housing and urban
development act of nineteen hundred sixty-eight, as amended, or any
successor provision, if applicable.

5. (a) Notwithstanding any provision of law to the contrary, all
rights or benefits, including terms and conditions of employment, and
protection of civil service and collective bargaining status of all
employees of NYCHA and the trust solely in connection with the use of an
alternative project delivery contract pursuant to this section shall be
preserved and protected.

(b) The use of alternative project delivery contracts pursuant to this
section shall not result in the (1) displacement of any currently
employed worker of NYCHA or loss of position, including partial
displacement such as a reduction in the hours of non-overtime work,
wages or employment benefits, or result in the impairment of existing
collective bargaining agreements to which NYCHA is a party, or (2)
transfer of existing duties and functions related to maintenance and
operations currently performed by existing employees of NYCHA to a
contractor.

(c) Employees of the trust and NYCHA serving in positions in newly
created titles shall be assigned to the appropriate bargaining unit.
Nothing contained in this section shall be construed to affect (1) the
existing rights of employees of NYCHA pursuant to an existing collective
bargaining agreement, (2) the existing representational relationships
among employee organizations representing employees of NYCHA, or (3) the
bargaining relationships between NYCHA and such employee organizations.

(d) Without limiting contractors' obligations under alternative
project delivery contracts to issue their own initial certifications of
substantial completion and final completion, public employees of the
trust shall review and determine whether the work performed by
contractors is acceptable and has been performed in accordance with the
applicable alternative project delivery contracts, and if such public
employees so determine, such public employees shall accept contractors'
substantial or final completion of the public works as applicable.
Performance by public employees of the trust of any review described in
this subdivision shall not be construed to modify or limit contractors'
obligations to perform the work in strict accordance with the applicable
alternative project delivery contract or the contractors' or any
subcontractors' obligations or liabilities under any law.