Bill S.2126

FILED ON: 1/31/2012

SENATE . . . . . . . . . . . . . . No. 2126

The Commonwealth of Massachusetts

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In the Year Two Thousand Twelve

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An Act authorizing governmental bodies to enter into contracts for the inspection, maintenance, repair or modification of water storage facilities.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 40 of the General Laws is hereby amended by adding the following 10 sections:

Section 61. As used in this section and sections 62 to 70, inclusive, the following words shall have the following meanings unless the context clearly requires otherwise:

"Governmental body", a city, town, county, water district or wastewater district, municipal water and sewer commission or regional water and sewer district commission established under chapter 40N or by special act or an independent water and sewer commission.

“Governmental body” shall not include the Massachusetts Water Resources Authority, (“MWRA”).

“Local Legislative Body” in a city, the city council, in a town, the town meeting or as otherwise more specifically defined by the municipal charter, municipal water and sewer commission or regional water and sewer district commission established under chapter 40N or by special act, in a district, the district meeting, in an independent water and sewer commission, the commissioners.

“Water storage facility”, an above or below-ground facility or tank, standpipe, water tower or other building or structure used to store water for, without limitation, public drinking water supply and fire protection.

Section 62. Notwithstanding any other general or special law to the contrary, pursuant to sections 61 to 70, inclusive, a governmental body may enter into contracts for the inspection, maintenance, repair or modification of a water storage facility to ensure adequate services and to ensure the ability of the water storage facility to comply with the requirements of federal, state and local laws. Contracts shall be awarded in accordance with section 6 of chapter 30B. A contract pursuant to sections 61-70 may provide that a local governmental body with a 2/3s vote of approval of the local legislative body may make annual payments to fund capital modifications, repairs or installation of equipment and systems at a water storage facility that have been completed or are to be completed pursuant to the terms of the request for proposals. Costs shall be amortized over a period that shall not be longer than the useful life of the modifications or repairs or the equipment and systems installed. A contract may provide that a local governmental body with a 2/3s vote of approval of the local legislative body may make payments for future capital modifications, repairs or installation of equipment and systems or a second interior or exterior coating at a water storage facility pursuant to the terms of the request for proposals based on estimated costs of such capital modifications, repairs or installation of equipment and systems at a water storage facility, only if the payments for the full accumulated amount are guaranteed by a bond, letter of guaranty, or other form of guaranty to be submitted on an annual basis and approved by the governmental body for the 100 percent accumulated amount.

Section 63. (a) A contract awarded under section 62 may provide for a term, not exceeding 15 years, and an option for renewal or extension of inspection, maintenance repair or modification services for 1 additional term not exceeding 5 years. When a contract is to contain an option for renewal or extension, the solicitation shall include notice of that provision. A renewal or extension shall be at the sole discretion of the governmental body under the terms and conditions of the original contract Subject to the provisions of paragraph (b), a contract awarded under section 62 shall contain a provision stating that the governmental body may terminate the contract upon 90 days written notice.

(b) Notwithstanding any general or special law to the contrary, a contract entered into under section 62 may provide that the governmental body’s obligation under the contract for payment of the annual costs to inspect, maintain, repair, or modify a water storage facility shall be subject to appropriation, but a governmental body shall not be exempt from liability for the payment of the amounts amortized for completed capital modifications, repairs or installation of equipment and systems at a water storage facility. Costs shall be amortized over a period that shall not be longer than the useful life of the modifications or repairs or the equipment and systems installed. A governmental body's payment obligation for any inspection, maintenance, repair or modification services shall be contingent upon the contractor's performance of the services under the terms of the contract. A contract entered into pursuant to this section shall include the independent professional engineer’s report that was used as the basis of the solicitation and include a breakdown of the portion of the annual fee that is allocated to inspection, maintenance, operation, testing and ordinary repair which shall be subject to the provisions concerning annual appropriation in this section, and the portion of the annual fee that is attributable to capital modification, capital repairs or installation of equipment and systems at a water storage facility for which the amount of the lump sum cost of such capital modification, capital repairs or installation of equipment and systems at a water storage facility has been amortized over the life of the contract. In addition, if a governmental body votes to make payments for future capital modifications, repairs, installation of equipment and systems or a second interior or exterior coating, a contract entered into pursuant to this section shall include a schedule of the payments to be made based on the estimated costs of such future capital modifications, repairs, installation of equipment and systems or a second interior or exterior coating as submitted by the selected offeror in response to the request for proposals, which shall be used to determine the full accumulated amount to be guaranteed. In the event of a termination, the amounts held for future capital modifications, capital repairs or installation of equipment and systems or a second interior or exterior coating, shall be refunded to governmental body in accordance with the terms and conditions of the request for proposals

(c) A contract entered into under section 62 may provide for any activities deemed necessary to carry out the purposes authorized in sections 61 to 70, inclusive, which may include, but shall not be limited to, equipment installation and replacement, studies, permitting, design and engineering, capital modification, capital repairs, painting, ordinary repairs and maintenance, and the furnishing of all related material, supplies and services required for a water storage facility and the management, maintenance and repair of and improvements to the facility. In the event that the contract and any lawfully executed extension of the initial term includes payments for future capital modifications, repairs, installation of equipment and systems or a second interior or exterior coating, prior to proceeding the governmental body shall seek the consultation of a professional engineer or independent certified tank consultant to complete an independent review of the proposed scope in relation to the condition of the water storage facility. The engineer or tank consultant shall prepare a written report to advise the governmental body on proceeding with the contractor’s proposal.

Section 64. (a) The chief procurement officer of a governmental body shall solicit proposals in conformance with M.G.L. c. 30B, section 6. Information from the governmental body shall contain a full and complete description of the condition of the water storage tank as written by an independent professional engineer. The scope of services shall contain a detailed description of the services to be provided by the selected proposer.

(b) All subcontractorsunder the offeror with more than ten, (10), employees shall maintain and participate in a bona fide apprentice training program as prescribed in sections 11H and 11I of chapter 23 for each trade or occupation with an apprentice training program and approved by the division of apprentice training in the department of labor and workforce development and shall abide by the apprentice-to-journeyman ratio for each such trade as prescribed in said chapter 23 while in the performance of the contract.

(c) A contract pursuant to sections 61-70 shall specifically state that the offeror and any subcontractor under the offeror shall comply with all federal and state occupational health and safety requirements applicable to the activities provided for in the contract.

Section 65. The chief procurement officer of a governmental body shall award the contract, subject to a two-thirds vote of the local legislative body, to the most advantageous proposal from a responsible and responsive offeror taking into consideration price and the evaluation criteria set forth in the request for proposals. A contract awarded under this section must be approved by a two-thirds vote of the local legislative body. The governmental body shall provide written notice to the selected offeror within the time for acceptance specified in the request for proposals. The governmental body and the offeror may extend the time for acceptance by mutual agreement. If the contract award is made to an offeror who did not have the lowest overall price proposal, then the chief procurement officer shall publish a timely written statement of reasons for its selection in the Central Register.

Section 66. A contract awarded under sections 61 to 70, inclusive, shall be subject to such terms and conditions as the governmental body shall determine to be in its best interest. The selected offeror shall furnish to the governmental body performance bonds, payment bonds, or other forms of security for the selected offeror’s obligations, and insurance, satisfactory to the governmental body.

Section 67. The department of environmental protection may issue project approval certificates with respect to capital project costs identified with a contract procured by a governmental body under sections 61 to 70, inclusive, for facilities improvements.

Section 68. No general or special law or rule or regulation relating to the advertising, bidding or awarding of contracts, for the procurement of services or for the construction and design of improvements shall apply to a selected offeror which is awarded a contract under sections 61 to 70, inclusive, except for sections 26 to 27F, inclusive, and section 29 of chapter 149.

Section 69. A contract made in violation of any provision of sections 61 to 70, inclusive, shall be void and the governmental body shall make no payment under any such contract. Minor informalities shall not render a contract void.

Section 70. Public notice of the request for proposals shall be published in the central register pursuant to section 20A of chapter 9 at least 30 days before the time specified for receipt of proposals in the request for proposals.