STATE OF NEW YORK ________________________________________________________________________ 10305 IN ASSEMBLY May 17, 2024 ___________ Introduced by COMMITTEE ON RULES -- (at request of M. of A. McDonald) -- read once and referred to the Committee on Governmental Operations 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 20 cost effectively result in the achievement of each of the foregoing 21 objectives and unlock access to federal capital requiring such statutory 22 authorization. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD15174-03-4
A. 10305 2 1 § 2. The state finance law is amended by adding a new article 9-A to 2 read as follows: 3 ARTICLE 9-A 4 COMPREHENSIVE DELIVERY 5 Section 149. Definitions. 6 149-a. Enabling authority. 7 149-b. Procurement. 8 149-c. Project funding. 9 149-d. Labor and public interest protections. 10 149-e. Comprehensive agreements. 11 149-f. Construction. 12 149-g. Severability. 13 § 149. Definitions. As used in this article, the following terms shall 14 have the following meanings: 15 1. "Authorized project" means infrastructure delivered under an inter- 16 im agreement and/or comprehensive agreement between a public entity and 17 a development entity consolidating at least two or more of design, 18 construction, finance, operations and/or maintenance work, including 19 construction manager or construction manager at risk under this article; 20 2. "Comprehensive agreement" means an agreement between a development 21 entity and a public entity for the delivery of an authorized project, 22 including at least those required provisions under this article; 23 3. "Infrastructure" means physical structures, improvements, equipment 24 and/or facilities, including any digital infrastructure, which support a 25 public purpose or objective of a public entity; 26 4. "Interim agreement" means the interim agreement, including a pre- 27 development agreement or memorandum of understanding or other binding 28 preliminary agreement, that may be entered into between the development 29 entity and the public entity pursuant to this article; 30 5. "Development entity" means any natural person, corporation, part- 31 nership, limited liability company including a special purpose vehicle, 32 joint venture, not-for-profit corporation or other business entity; 33 6. "Public entity" means the state and any agency, department or 34 authority thereof, any county, city, town, village or school district 35 and any other political subdivision, institution of higher education, 36 agency, corporation, instrumentality or authority of, or established by, 37 any of the foregoing; and 38 7. "Revenues" means all revenues, including, but not limited to, 39 income, earnings, interest payments, user fees, lease payments, allo- 40 cations, federal, state, regional and local appropriations or the appro- 41 priations or other funds available to any public entity, bond proceeds, 42 equity investments and/or service payments arising out of or in 43 connection with supporting the development and/or operation of a author- 44 ized project, including without limitation, money received as grants or 45 otherwise from the United States of America, from any public entity, or 46 from any agency or instrumentality of the foregoing in aid of such 47 facility. 48 § 149-a. Enabling authority. Subject to subdivision four of this 49 section, where it is determined by a public entity to be in the public 50 interest to pursue an authorized project, notwithstanding any law, rule, 51 or regulation to the contrary and in lieu of any other procurement or 52 acquisition process that may apply to an authorized project, such public 53 entity is authorized to: 54 1. establish necessary and appropriate procurement and delivery inter- 55 nal control policies, procedures, or guidelines to efficiently deliver 56 an authorized project. Such policies, procedures or guidelines must also
A. 10305 3 1 ensure open, competitive, transparent and robust selection basis of any 2 development entity for an authorized project; 3 2. enter into interim agreements, comprehensive agreements or any 4 other document or instrument that may be necessary or convenient to 5 deliver an authorized project pursuant to this article; 6 3. dedicate, make available, or convey any real, personal, tangible, 7 intangible and property interest that it has to a development entity for 8 an authorized project; 9 4. exercise governmental authorities or powers to support the delivery 10 of an authorized project; and 11 5. enable a development entity to perform under the terms of a compre- 12 hensive agreement, and subject to the limitations under this article, 13 functions normally undertaken by the government. 14 § 149-b. Procurement. 1. The public entity may hold one-on-one colla- 15 borative dialogue meetings with development entities during a procure- 16 ment for an authorized project to negotiate individually with each 17 development entity the terms of an interim and comprehensive agreement. 18 2. Any materials or data submitted to, made available to, or received 19 by the public entity, may be held confidential and not public record 20 until such time as a preferred proposer is awarded or the procurement is 21 terminated. 22 3. The public entity may receive, consider, evaluate and accept an 23 unsolicited proposal for an authorized project if the proposal addresses 24 the needs of a public entity and such public entity has published a 25 policy or procurement regulation for unsolicited proposals. 26 4. The public entity is authorized to pay, in exchange for receipt of 27 intellectual property from a proposer, a stipend to an unsuccessful 28 proposer or a proposer in a cancelled procurement for an authorized 29 project, in an amount and the terms determined appropriate by the public 30 entity. 31 5. The public entity may retain, by means of competitive negotiation 32 consultants and experts inside and outside the public sector to assist 33 in the procurement, evaluation, contracting, managing and negotiation of 34 authorized projects under this article. 35 6. The public entity may select a preferred proposer to serve as the 36 development entity for an approved project through a single or multi- 37 step procurement process on a best value basis. 38 7. For all infrastructure projects in excess of two hundred million 39 dollars (as adjusted by the consumer price index annually), all public 40 entities must conduct an assessment, which may be a value for money 41 assessment or equivalent, that quantitatively and qualitatively assesses 42 the most appropriate delivery model for such infrastructure project 43 comparing the cost, price, schedule, quality, long-term operations and 44 maintenance costs, future revenue streams to fund such infrastructure, 45 and relative benefits and challenges of design-bid-build procurement 46 methods to those authorized by this section. 47 § 149-c. Project funding. 1. Any lawful source of funding, revenue and 48 financing may be utilized by a public entity and development entity for 49 the development, maintenance and operations of an authorized project and 50 a public entity is authorized to pay a development entity a payment for 51 the availability of an authorized project, where such availability 52 payment is performance based and decreases where a development entity 53 fails to perform in accordance with a comprehensive agreement. Any 54 public entity may authorize a development entity to perform any one or 55 more of the following: setting rates, collecting revenues, enforcing 56 collection, or retaining revenues from third parties and the general
A. 10305 4 1 public for the use of an authorized project, all of which will be 2 subject to limitations, constraints and parameters established by the 3 public entity in a comprehensive agreement. The comprehensive agreement 4 will prescribe the extent to which any such rates are subject to the 5 public entity's oversight and approval. A public entity may compensate a 6 development entity under an interim agreement for work performed and 7 work product produced. 8 2. The public entity may accept from any source any grant, donation, 9 gift, or other form of conveyance of land, money, other real or personal 10 property or other valuable thing made to the public entity for carrying 11 out the purposes of this article and may transfer such property to a 12 development entity under a comprehensive agreement. 13 3. Any comprehensive agreement may be for a term deemed reasonably 14 appropriate by a public entity to achieve the purpose of this article. 15 § 149-d. Labor and public interest protections. The intent of this 16 article is to enhance opportunities and improve wages for New York state 17 public and private sector labor participants. 18 1. Notwithstanding any provision of law to the contrary, all rights or 19 benefits, including terms and conditions of employment, and protection 20 of civil service and collective bargaining status of all employees of 21 existing state agencies and public authorities affected by the 22 provisions of this article, shall be preserved and protected. Nothing in 23 this article shall result in: the displacement of any currently employed 24 public employee or loss of position, including partial displacement such 25 as a reduction in the hours of non-overtime work, wages or employment 26 benefits, on an existing asset or result in the impairment of existing 27 collective bargaining agreements with respect to existing assets; or the 28 transfer of existing duties and functions currently performed by employ- 29 ees of existing state agencies or public authorities, in each case, on 30 existing assets, affected by the provisions of this article to a devel- 31 opment entity. Employees serving in positions in newly created titles 32 shall be assigned to the appropriate bargaining unit. Nothing in this 33 article shall be construed to affect: 34 (a) the existing rights of employees pursuant to an existing collec- 35 tive bargaining agreement; or 36 (b) the existing representational relationships among employee organ- 37 izations or the bargaining relationships between the employer and an 38 employee organization. 39 2. Every development entity which enters into an interim agreement or 40 comprehensive agreement pursuant to this article shall be subject to the 41 labor law requirements and minority and women owned business enterprise 42 requirements for design and construction provided under the New York 43 State Infrastructure Investment Act, as amended, for authorized projects 44 outside of New York city and the New York City Public Works Investment 45 Act, as amended, for authorized projects procured by the city of New 46 York as well as the following: 47 (a) the provisions of article eight of the environmental conservation 48 law; 49 (b) the provisions of all state and federal laws prohibiting discrimi- 50 nation and requiring the provision of equal employment opportunity; 51 (c) the provisions of article six of the public officers law post-a- 52 ward of an authorized project; and 53 (d) any other consistent local and state law and any applicable feder- 54 al law, rules and regulations which are otherwise required by law in 55 connection with the performance of public work and the work to which the 56 authorized project relates.
A. 10305 5 1 § 149-e. Comprehensive agreements. 1. A comprehensive agreement under 2 this section may provide, including but not limited to: 3 (a) planning, acquisition, financing, development, design, 4 construction, reconstruction, replacement, financing, improvement, main- 5 tenance, life-cycle work, management, repair, leasing and/or operation 6 of qualifying public infrastructure; 7 (b) payment of long-term performance-based payments and/or 8 construction milestone payments; 9 (c) requirements regarding setting, collecting, retaining, sharing and 10 enforcing user fees or rents; 11 (d) terms and conditions of indemnification of the development entity 12 by the public entity; 13 (e) a lease, license, or conveyance of a real, personal or intangible 14 property interests; 15 (f) appropriately sizing any performance and payment bonds relative to 16 the overall security package for the approved project; 17 (g) the provision of insurance policies either through the development 18 entity and/or the public entity; 19 (h) a security interest by the lenders in the comprehensive agreement 20 and the right of the development entity to pledge its interests and 21 revenues under the comprehensive agreement for the benefit of its lend- 22 ers; 23 (i) step-in rights for the public entity upon a default of the devel- 24 opment entity; 25 (j) enforcement and other policing issues, including any reimbursement 26 by the development entity for such services; 27 (k) provisions allowing the development entity or the public entity to 28 act on each other's behalf in acquiring parcels, including through 29 condemnation, required for the approved project; and 30 (l) any other provision deemed reasonably necessary to serve the 31 public purpose under this article. 32 2. A comprehensive agreement under this section shall provide for: 33 (a) appropriate and balanced risk allocation to maximize best value 34 for the approved project; 35 (b) a specific plan, where applicable, to ensure proper maintenance of 36 the qualifying public infrastructure throughout the term of the compre- 37 hensive agreement and a return of the infrastructure to the responsible 38 public entity, if applicable, in a specified condition in the comprehen- 39 sive agreement; 40 (c) compliance with applicable law and this article; 41 (d) grounds for default and termination and authorization of payment 42 of termination compensation; 43 (e) a date for completion of the applicable work required to deliver 44 the authorized project; and 45 (f) review and approval by the public entity of the development enti- 46 ty's plans and performance of the development and maintenance of the 47 authorized project. 48 3. The comprehensive agreement may provide for the development and/or 49 operation of phases or segments or multiple bundled projects under a 50 single comprehensive agreement. 51 4. Notwithstanding any other provision of law, the responsible public 52 entity may agree to or require use of arbitration or other alternative 53 dispute resolution procedures to resolve disputes with the development 54 entity. 55 5. Development entities shall not be subject to article one hundred 56 forty-five of the education law, provided, however all professional
A. 10305 6 1 services rendered by a development entity must be performed by licensed 2 persons as required under article one hundred forty-five of the educa- 3 tion law. 4 6. While public funding can be used to support payments under a 5 comprehensive agreement, the full faith and credit of the public entity 6 shall not be pledged to secure any financing of the development entity 7 by the election to take over the qualifying public infrastructure and 8 such availability or service payments shall not be treated as debt of 9 any public entity and no financing of a development entity will be 10 considered debt of any public entity and must be non-recourse to a 11 public entity. 12 7. In the event of termination of a comprehensive or interim agree- 13 ment, the authority and duties of the development entity shall cease, 14 except for any duties and obligations that extend beyond the termination 15 as provided in the comprehensive or interim agreement, and the qualify- 16 ing public infrastructure reverts to the public entity and shall be 17 dedicated to the public entity for public use. 18 § 149-f. Construction. The provisions of this article which are incon- 19 sistent with any other provision of state law shall be deemed to super- 20 sede such provision of law, and the provisions of this article shall be 21 controlling. 22 § 149-g. Severability. If any clause, sentence, paragraph, section or 23 part of this article shall be adjudged by any court of competent juris- 24 diction to be invalid and after exhaustion of all further judicial 25 review, the judgment shall not affect, impair or invalidate the remain- 26 der thereof, but shall be confined in its operation to the clause, 27 sentence, paragraph, section or part of this article directly involved 28 in the controversy in which the judgment shall have been rendered. 29 § 3. Paragraph (b) of subdivision 2 of section 1676 of the public 30 authorities law is amended by adding a new undesignated paragraph to 31 read as follows: 32 Any development entity for the purposes of development or operation of 33 an approved project pursuant to article nine-A of the state finance law. 34 § 4. Subdivision 1 of section 1680 of the public authorities law is 35 amended by adding a new undesignated paragraph to 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 § 5. The opening paragraph of section 10.00 of the local finance law 39 is designated subdivision 1 and a new subdivision 2 is added to read as 40 follows: 41 2. A municipality, school district or district corporation shall have 42 the power to contract indebtedness for the purposes of implementing the 43 provisions of article nine-A of the state finance law. 44 § 6. This act shall take effect immediately.