STATE OF NEW YORK ________________________________________________________________________ 10053 IN ASSEMBLY March 9, 2018 ___________ Introduced by M. of A. HEASTIE, CYMBROWITZ, ARROYO, BENEDETTO, BICHOTTE, BLAKE, COLTON, COOK, CRESPO, CUSICK, DE LA ROSA, DICKENS, DILAN, DINOWITZ, GOTTFRIED, HARRIS, JOYNER, KIM, MOSLEY, NIOU, NOLAN, O'DONNELL, ORTIZ, PERRY, PICHARDO, RODRIGUEZ, L. ROSENTHAL, SEAWRIGHT, SEPULVEDA, SIMON, TAYLOR, TITONE, TITUS, WALKER, WEINSTEIN, WILLIAMS, WRIGHT -- read once and referred to the Committee on Housing AN ACT establishing the "New York City Housing Authority Facilities Modernization Act"; and providing for the repeal of such provisions upon expiration thereof (Part A); and to amend the public housing law, in relation to reporting on lead-based paint poisoning prevention (Part B) The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act enacts into law major components of legislation 2 which are necessary to promote and protect the health and safety of New 3 York residents relating to housing. Each component is wholly contained 4 within a Part identified as Parts A through B. The effective date for 5 each particular provision contained within such Part is set forth in the 6 last section of such Part. Any provision in any section contained within 7 a Part, including the effective date of the Part, which makes reference 8 to a section "of this act", when used in connection with that particular 9 component, shall be deemed to mean and refer to the corresponding 10 section of the Part in which it is found. Section three of this act sets 11 forth the general effective date of this act. 12 PART A 13 Section 1. This act shall be known and may be cited as the "New York 14 City Housing Authority Facilities Modernization Act". 15 § 2. Definitions. For the purposes of this act, the following terms 16 shall have the following meanings: 17 1. "Project" shall mean any installation, construction, demolition, 18 reconstruction, excavation, rehabilitation, renovation, and repair 19 contracted out by the authorized authority pursuant to this act. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD14842-09-8A. 10053 2 1 2. "Authorized authority" shall mean the New York City Housing Author- 2 ity. 3 3. "Best value" shall mean the basis for awarding contracts for 4 services to the bidder that optimize quality, cost and efficiency, price 5 and performance criteria, which may include, but is not limited to: 6 (a) The quality of the contractor's performance on previous projects; 7 (b) The timeliness of the contractor's performance on previous 8 projects; 9 (c) The level of customer satisfaction with the contractor's perform- 10 ance on previous projects; 11 (d) The contractor's record of performing previous projects on budget 12 and ability to minimize cost overruns; 13 (e) The contractor's ability to limit change orders; 14 (f) The contractor's ability to prepare appropriate project plans; 15 (g) The contractor's technical capacities; 16 (h) The individual qualifications of the contractor's key personnel; 17 (i) The contractor's ability to assess and manage risk and minimize 18 risk impact; 19 (j) The contractor's past record of encouraging minority and women- 20 owned business enterprise participation and compliance with article 15-A 21 of the executive law and any other applicable laws concerning minority 22 and women-owned business enterprise participation. 23 (k) A quantitative factor to be used in evaluation of bids or offers 24 for awarding of contracts for bidders or offerers that are certified as 25 minority or women-owned business enterprises as defined in article 15-A 26 of the executive law, or certified pursuant to local law as minority or 27 women-owned business enterprises. 28 Such basis shall reflect, wherever possible, objective and quantifi- 29 able analysis. 30 4. "Design-build contract" shall mean, in conformity with the require- 31 ments of this act, a contract for the design and construction of the 32 projects with a single entity, which may be a team comprised of separate 33 entities. 34 5. "Procurement record" shall mean documentation of the decisions made 35 and the approach taken in the procurement process. 36 6. "Project labor agreement" shall mean a pre-hire collective bargain- 37 ing agreement between a contractor and a bona fide building and 38 construction trade labor organization establishing the labor organiza- 39 tion as the collective bargaining representative for all persons who 40 will perform work on the project, and which provides that only contrac- 41 tors and subcontractors who sign a pre-negotiated agreement with the 42 labor organization can perform project work. 43 § 3. Notwithstanding section 103 of the general municipal law, section 44 151 of the public housing law, or the provisions of any other law to the 45 contrary, in conformity with the requirements of this act, and only when 46 a project labor agreement is performed, the authorized authority may 47 utilize the alternative delivery method referred to as a design-build 48 contract for the project provided that each such project shall not be 49 less than one million two hundred thousand dollars ($1,200,000). The 50 authorized authority shall ensure that its procurement record reflects 51 the design-build contract process authorized by this act. 52 § 4. An entity selected by the authorized authority to enter into a 53 design-build contract for the project shall be selected through a two- 54 step method, as follows: 55 1. Step one. Generation of a list of entities that have demonstrated 56 the general capability to perform a design-build contract for theA. 10053 3 1 project. Such list shall consist of a specified number of entities, as 2 determined by the authorized authority, and shall be generated based 3 upon the authorized authority's review of responses to a publicly adver- 4 tised request for qualifications for the project. The authorized author- 5 ity's request for qualifications for the project shall include a general 6 description of the project, the maximum number of entities to be 7 included on the list, and the selection criteria to be used in generat- 8 ing the list. Such selection criteria shall include the qualifications 9 and experience of the design and construction team, organization, demon- 10 strated responsibility, ability of the team or of a member or members of 11 the team to comply with applicable requirements, including the 12 provisions of articles 145, 147 and 148 of the education law, past 13 record of compliance with the labor law including prevailing wage 14 requirements under state and federal law; the past record of compliance 15 with existing labor standards and maintaining harmonious labor 16 relations; the record of protecting the health and safety of workers on 17 public works projects and job sites as demonstrated by the experience 18 modification rate for each of the last three years; the prospective 19 bidder's ability to undertake the particular type and complexity of 20 work; the financial capability, responsibility and reliability of the 21 prospective bidder for such type and complexity of work; the prospective 22 bidder's compliance with equal employment opportunity requirements and 23 anti-discrimination laws, and demonstrated commitment to working with 24 minority and women-owned businesses through joint ventures or subcon- 25 tractor relationships; whether or not the prospective bidder or a person 26 or entity with an interest of at least ten per centum in the prospective 27 bidder, is listed by the federal government as excluded from receiving 28 federal contracts and certain subcontracts, assistance, or benefits 29 pursuant to 48 C.F.R. subpart 9-4; and such other qualifications the 30 authorized authority deems appropriate which may include but are not 31 limited to project understanding, financial capability and record of 32 past performance. The authorized authority shall evaluate and rate all 33 entities responding to the request for qualifications. Based upon such 34 ratings, the authorized authority shall list the entities that shall 35 receive a request for proposals in accordance with subdivision two of 36 this section. To the extent consistent with applicable federal law, the 37 authorized authority shall consider, when awarding any contract pursuant 38 to this section, the participation of: (a) firms certified pursuant to 39 article 15-A of the executive law as minority or women-owned businesses 40 or certified pursuant to local law as minority or women-owned business 41 enterprises and the ability of other businesses under consideration to 42 work with minority and women-owned businesses so as to promote and 43 assist participation by such businesses; and (b) small business concerns 44 identified pursuant to subdivision (b) of section 139-g of the state 45 finance law. 46 2. Step two. Selection of the proposal which is the best value to the 47 authorized authority. The authorized authority shall issue a request 48 for proposals for the project to the entities listed pursuant to subdi- 49 vision one of this section. If such an entity consists of a team of 50 separate entities, the entities that comprise such a team must remain 51 unchanged from the entity as listed pursuant to subdivision one of this 52 section unless otherwise approved by the authorized authority. The 53 request for proposals for the project shall set forth the project's 54 scope of work, and other requirements, as determined by the authorized 55 authority. The request for proposals shall set forth the public work's 56 scope of work, and other requirements, as determined by the authorizedA. 10053 4 1 entity, which may include separate goals for work under the contract to 2 be performed by businesses certified as minority or women-owned business 3 enterprises as defined in article 15-A of the executive law, or certi- 4 fied pursuant to local law as minority or women-owned business enter- 5 prises. The request for proposals shall specify the criteria to be used 6 to evaluate the responses and the relative weight of each such criteria. 7 Such criteria shall include the proposal's cost, the quality of the 8 proposal's solution, the qualifications and experience of the design- 9 build entity, and other factors deemed pertinent by the authorized 10 authority, which may include, but shall not be limited to, the 11 proposal's project implementation, ability to complete the work in a 12 timely and satisfactory manner, maintenance costs of the completed 13 project, maintenance of traffic approach, and community impact. Any 14 contract awarded pursuant to this act shall be awarded to a responsive 15 and responsible entity that submits the proposal, which, in consider- 16 ation of these and other specified criteria deemed pertinent to the 17 project, offers the best value to the authorized authority, as deter- 18 mined by the authorized authority. Nothing in this act shall be 19 construed to prohibit the authorized authority from negotiating final 20 contract terms and conditions including cost. 21 3. Notwithstanding the foregoing provisions of this section, when any 22 person or entity is listed by the federal government as excluded from 23 receiving federal contracts and certain subcontracts, assistance or 24 benefits, pursuant to 48 C.F.R. subpart 9-4, such person or entity, and 25 any firm, corporation, partnership or association in which the person or 26 entity owns or controls at least ten per centum, shall be ineligible to 27 submit a bid on or be awarded any contract authorized by this act during 28 such period of exclusion. The department of labor shall notify the 29 person or entity immediately of such ineligibility and such person or 30 entity must be afforded the opportunity to appeal to the department of 31 labor. 32 § 5. Any contract entered into pursuant to this act shall include a 33 clause requiring that any professional services regulated by articles 34 145, 147 and 148 of the education law shall be performed and stamped and 35 sealed, where appropriate, by a professional licensed in accordance with 36 such articles. 37 § 6. The installation, construction, demolition, reconstruction, exca- 38 vation, rehabilitation, repair, and renovation of the project undertaken 39 by the authorized authority pursuant to this act shall be deemed a 40 "public work" to be performed in accordance with the provisions of arti- 41 cle 8 of the labor law, as well as subject to sections 200, 240, 241 and 42 242 of the labor law and enforcement of prevailing wage requirements by 43 the New York state department of labor and, if the project receives 44 federal aid, applicable federal requirements for prevailing wage. 45 § 7. A project labor agreement shall be included in the request for 46 proposals for the project, provided that, based upon a study done by or 47 for the authorized authority, the authorized authority determines that 48 its interest in obtaining the best work at the lowest possible price, 49 preventing favoritism, fraud and corruption, and other considerations 50 such as the impact of delay, the possibility of cost savings advantages, 51 and any local history of labor unrest, are best met by requiring a 52 project labor agreement. The authorized authority shall conduct such a 53 study and the project labor agreement shall be performed consistent with 54 the provisions of section 222 of the labor law. If a project labor 55 agreement is not performed on the project (1) the authorized authority 56 shall not utilize a design-build contract for the project; and (2)A. 10053 5 1 sections 101 and 103 of the general municipal law and sections 151 and 2 151-a of the public housing law shall apply to the project. 3 § 8. Each contract entered into by the authorized authority pursuant 4 to this act shall comply, whenever practical, with the objectives and 5 goals of minority and women-owned business enterprises pursuant to arti- 6 cle 15-A of the executive law or, if the project receives federal aid, 7 shall comply with applicable federal requirements for disadvantaged 8 business enterprises. 9 § 9. The project undertaken by the authorized authority pursuant to 10 this act shall be subject to the requirements of article 8 of the envi- 11 ronmental conservation law, and, where applicable, the requirements of 12 the national environmental policy act. 13 § 10. (a) Notwithstanding any provision of law to the contrary, all 14 rights and benefits, including terms and conditions of employment, and 15 protection of civil service and collective bargaining status of all 16 employees of the authorized authority in connection with the project 17 shall be preserved and protected. 18 (b) Nothing in this act shall result in the: (1) displacement of any 19 currently employed worker or loss of position (including partial 20 displacement such as a reduction in the hours of non-overtime work, 21 wages or employment benefits), or result in the impairment of existing 22 collective bargaining agreements; and (2) transfer of existing duties 23 and functions related to maintenance and operations currently performed 24 by existing employees of the authorized authority to a contractor. 25 (c) Employees of the authorized authority that perform work in 26 connection with the project serving in positions in newly created titles 27 shall be assigned to the appropriate bargaining unit. 28 (d) Nothing contained in this act shall be construed to affect: (1) 29 the existing rights and benefits of employees of the authorized authori- 30 ty pursuant to an existing collective bargaining agreement and the civil 31 service law, including terms and conditions of employment; (2) the 32 existing representational relationships among employee organizations 33 representing employees of the authorized authority; or (3) the bargain- 34 ing relationships between the authorized authority and such employee 35 organizations. 36 § 11. If otherwise applicable, the project undertaken by the author- 37 ized authority pursuant to this act shall be governed by the general 38 municipal law and/or the public housing law. 39 § 12. The submission of a proposal or responses or the execution of a 40 design-build contract pursuant to this act shall not be construed to be 41 a violation of section 6512 of the education law. 42 § 13. Nothing contained in this act shall limit the right or obli- 43 gation of the authorized authority to comply with the provisions of any 44 existing contract, including any existing contract with or for the bene- 45 fit of the holders of the obligations of the authorized authority, or to 46 award contracts as otherwise provided by law. 47 § 14. This act shall take effect immediately and shall expire and be 48 deemed repealed 4 years after such date, provided that, if the New York 49 city housing authority has issued requests for qualifications for the 50 project prior to such repeal, such project shall be permitted to contin- 51 ue under this act notwithstanding such repeal. 52 PART B 53 Section 1. The public housing law is amended by adding a new section 54 402-d to read as follows:A. 10053 6 1 § 402-d. Reporting on lead-based paint poisoning prevention. 1. 2 Commencing on November first, two thousand eighteen and every year ther- 3 eafter, the chair of the New York city housing authority shall produce a 4 written report outlining federal, state and local laws forming the New 5 York city housing authority's policies and procedures related to lead- 6 based paint poisoning prevention and its implementation of such policies 7 and procedures for the prior fiscal year. Such report shall be submit- 8 ted to the New York city department of health and mental hygiene and the 9 New York city department of housing preservation and development and 10 shall be published on each department's website alongside other reports 11 pertaining to lead-based paint poisoning prevention so that such report 12 is available for public viewing. Such report shall include an analysis 13 of the lead-based paint poisoning prevention program, a detailed state- 14 ment of revenue and expenditures and a statistical section designed to 15 provide a detailed explanation of the New York city housing authority's 16 implementation, including but not limited to, the following: 17 a. the number of complaints related to peeling paint in dwelling units 18 and/or common areas located in buildings constructed on or before nine- 19 teen hundred seventy-eight; and 20 b. the number of supervisory personnel and employees assigned to 21 conduct lead-based paint inspections, disaggregated by the number of 22 employees that have received training and certification in lead paint 23 removal and the type of certification for work relating to lead-based 24 paint poisoning prevention; and 25 c. the total number of exemptions obtained pursuant to subdivision b 26 of section 27-2056.5 of the administrative code of the city of New York 27 and the number of New York city public housing developments, buildings 28 and units affected by such exemptions; and 29 d. the number of peeling paint inspections completed by the New York 30 city housing authority as required by applicable federal, state and 31 local laws, disaggregated by the location of peeling paint, such as a 32 common area or dwelling unit; and 33 e. the number of peeling paint inspections identified as needing 34 corrective action pursuant to applicable federal, state and local laws 35 relating to lead-based paint, disaggregated by the location of peeling 36 paint, such as a common area or dwelling unit; and 37 f. the number of work orders for peeling paint that were certified as 38 corrected, disaggregated by remediation or abatement; and 39 g. the number of peeling paint complaints that did not result in an 40 inspection and the reason the inspection was not completed and the 41 number of peeling paint complaints that did not result in the removal of 42 such peeling paint and the reason the peeling paint was not remediated 43 or abated; and 44 h. the number of civil actions brought against the New York city hous- 45 ing authority alleging injury caused by lead-based paint; and 46 i. a statistical profile with geographic indexing, such as by communi- 47 ty district, assembly district, senate district and/or zip code, of 48 buildings in which peeling paint was identified as needing corrective 49 action, indicating the age of the building and other factors relevant to 50 the presence of lead paint hazards, which may include the prior lead 51 poisoning of a child in a multiple dwelling and emergency repairs; and 52 j. such other information as requested by the commissioner of the New 53 York city department of health and mental hygiene or the commissioner of 54 the New York city department of housing preservation and development. 55 2. The New York city housing authority shall maintain a central regis- 56 ter of all department orders to correct peeling paint pursuant to appli-A. 10053 7 1 cable federal, state and local laws. Such register shall indicate the 2 date of the complaint, the address of the premises, the date of each 3 inspection and reinspection, and the scope of work undertaken as correc- 4 tive actions. 5 3. Commencing on July first, two thousand eighteen and every July 6 first of each year thereafter, the chair of the New York city housing 7 authority shall submit a draft plan for review and comment to the New 8 York city department of housing preservation and development and the New 9 York city department of health and mental hygiene on the New York city 10 housing authority's policies and procedures related to lead-based paint 11 poisoning prevention and the manner in which the New York city housing 12 authority proposes to implement such policies and procedures. 13 The final plan shall take into consideration comments offered by the 14 New York city department of health and mental hygiene and the New York 15 city department of housing preservation and development and shall be 16 published by August fifteenth of each year on each department's website, 17 including the New York city housing authority's website, alongside other 18 reports pertaining to lead-based paint poisoning prevention so that such 19 report is available for public viewing. 20 § 2. This act shall take effect immediately. 21 § 2. Severability clause. If any clause, sentence, paragraph, subdivi- 22 sion, section or part of this act shall be adjudged by any court of 23 competent jurisdiction to be invalid, such judgment shall not affect, 24 impair, or invalidate the remainder thereof, but shall be confined in 25 its operation to the clause, sentence, paragraph, subdivision, section 26 or part thereof directly involved in the controversy in which such judg- 27 ment shall have been rendered. It is hereby declared to be the intent of 28 the legislature that this act would have been enacted even if such 29 invalid provisions had not been included herein. 30 § 3. This act shall take effect immediately provided, however, that 31 the applicable effective date of Parts A through B of this act shall be 32 as specifically set forth in the last section of such Parts.