Bill H.3741

HOUSE DOCKET, NO. 4019 FILED ON: 6/1/2017

HOUSE . . . . . . . . . . . . . . . No. 3741

By Representative Peake of Provincetown and Senator Cyr, a joint petition (accompanied by bill, House, No. 3741) of Sarah K. Peake and Julian Cyr (by vote of the town) that the town of Orleans be authorized to enter into contracts for a sewer works system. Municipalities and Regional Government. [Local Approval Received.]

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act authorizing the town of Orleans to enter into contracts for a sewer works system and operation.

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. (a) Notwithstanding any general or special law to the contrary, the town of Orleans may enter into contracts for the lease or sale, operation and maintenance, repair or replacement, financing, design, construction, installation and modifications to the sewer works system (using traditional and non-traditional technologies) necessary to ensure adequate services and ensure the ability of the town's sewer works system, as such terms are defined in Section 9, to operate in full compliance with all applicable requirements of federal, state and local law; provided, however, that such contracts shall not be subject to sections 14-21, inclusive of chapter 149A of the General Laws and the competitive bid requirements set forth in sections 44-57, inclusive, of chapter 7C (formerly M.G.L. c. 7, §§38½ - O), section 39M of chapter 30 or sections 44A to 44M, inclusive, of chapter 149 of the General Laws; provided, further, that each such contract shall be awarded pursuant to chapter 30B of the General Laws, except for clause (3) of paragraph (b) of section 6, clause (3) of paragraph (e) and paragraph (g) of said section 6 and sections 13 and 16 of said chapter 30B.

(b) The request for proposals for such contracts shall specify the evaluation criteria and method for comparing proposals to determine the proposal offering the lowest overall cost to the town, including, but not limited to, all capital equipment and capital improvement costs, operating and maintenance costs and capital financing costs. If a contract is awarded to an offeror who did not submit the proposal offering the lowest overall cost, the town shall explain the reason for the award in writing.

(c) The request for proposals shall set forth mandatory performance guarantees that the selected offeror will be required to meet in operating the sewer works system, as constructed or improved. The contract which is negotiated with the selected offeror based on the request for proposals shall obligate the selected offeror to meet such mandatory performance guarantees, and shall set forth the minimum design requirements for such construction or improvements and the acceptance tests to be conducted upon the completion of the construction or improvements in order to demonstrate that the system is capable of meeting the performance guarantees.

SECTION 2. (a) Notwithstanding any general or special law to the contrary, contracts awarded pursuant to Section 1 may provide for a term, not exceeding 20 years, and an option for renewal or extension of operation, maintenance, repair and replacement services for 1 additional term not exceeding 5 years. Any renewal or extension shall be at the sole discretion of the town in accordance with the original contract terms and conditions or contract terms and conditions more favorable to and acceptable to the town.

(b) A contract entered into pursuant to this act may provide that, subject to the requisite vote of town meeting, the town shall not be exempt from liability for payment of the costs to lease, finance, permit, design, construct and install modifications, new equipment and systems for the sewer works system and to operate, maintain, repair and replace the sewer works system as necessary to ensure the ability of the sewer works system to operate in full compliance with all applicable requirements of federal, state and local law, provided that any costs relating to leasing, financing, permitting, design, construction and installation of modifications, new equipment and systems shall be amortized over a period that is no longer than the useful life of said modifications, equipment and systems. The town’s payment obligations for all operations and maintenance services shall be conditioned on the contractor’s performance of such services in accordance with all contractual terms.

(c) A contract entered into pursuant to this act may provide for such activities deemed necessary to carry out the purposes authorized herein, including, but not limited to, equipment purchases, facility or land sale or lease, equipment installation, repair and replacement, performance testing and operation, studies, design and engineering work, construction work, ordinary repairs and maintenance, and the furnishing of all related material, supplies and services required for the construction, management, maintenance, operation, and repair and replacement of the town's sewer works system.

SECTION 3. The town administrator of the town of Orleans shall solicit proposals through a request for proposals which shall include those items in clauses (1) and (2) of paragraph (b) of section 6 of chapter 30B of the General Laws and the proposed key contractual terms and conditions to be incorporated into the contract, some of which may be deemed mandatory or nonnegotiable; provided, however, that such request for proposals may request proposals or offer options for fulfillment of other contractual terms, and such other matters as may be determined by the town. The request for proposals shall provide for the separate submission of price and shall indicate when and how the offerors shall submit price.

SECTION 4. The town administrator of the town of Orleans shall make a preliminary determination of the most advantageous proposal from a responsible and responsive offeror taking into consideration price, estimated life-cycle costs and the other evaluation criteria set forth in the request for proposals. The town administrator may negotiate all terms of the contract not deemed mandatory or nonnegotiable with such offeror. If after negotiation with such offeror, the town administrator determines that it is in the town's best interests, the town administrator may initiate negotiations with the next most advantageous proposal from a responsible and responsive offeror taking into consideration price, estimated life-cycle costs and the other evaluation criteria set forth in the request for proposals, and may negotiate all terms of the contract not deemed mandatory or nonnegotiable with such offeror. The town administrator shall award the contract to the most advantageous proposal from a responsible and responsive offeror taking into consideration price, estimated life-cycle costs, the evaluation criteria set forth in the request for proposals, and the terms of the negotiated contract. Subject to the approval of the board of selectmen and, to the extent required with respect to any contract in excess of five years, the authorization of the town meeting, the town administrator shall award the contract by written notice to the selected offeror within the time for acceptance specified in the request for proposals. The parties may extend the time for acceptance by mutual agreement.

SECTION 5. Subject to this act, any contract awarded hereunder shall be subject to such terms and conditions as the town administrator and board of selectmen of the town of Orleans shall determine to be in the best interests of the town and shall be authorized by a majority vote of the board of selectmen. Any such contract shall provide that prior to the construction, modification or installation of new equipment and systems, the town shall cause a qualified wastewater engineer to independently review and approve plans and specifications for the modifications, new equipment and systems. Such contract shall further provide that prior to acceptance of any modifications, new equipment or systems, including work undertaken pursuant to Section 6 and estimated to cost more than $100,000, adjusted in accordance with adjustment factors as determined by the Town, the Town shall cause a qualified wastewater engineer to inspect such modifications, new equipment and systems and certify that the construction or installation has been completed in accordance with the approved plans and specifications.

SECTION 6. The provisions of any general or special law or regulation relating to the advertising, bidding or award of contracts, to the procurement of services or to the design and construction of improvements, except the provisions of sections 26 to 27H, inclusive, of chapter 149 of the General Laws, shall not be applicable to any selected offeror which is awarded a contract as provided in this section. The construction of any new capital improvement or any renovation, modernization, installation, repair or replacement work estimated to cost more than $100,000, adjusted in accordance with adjustment factors as determined by the town, not specifically included in the initial contract or contracts for the lease or sale, operation or maintenance, financing, design, construction, repair or replacement, and installation of modifications, new equipment and systems necessary for any particular part of the sewer works system, shall be procured on the basis of advertised sealed bids; provided, however, that bids need not be solicited if the contractor causes such construction, renovation, modernization, installation, repair or replacement work to be completed without direct or indirect reimbursement from the town, or other adjustment to the fees paid by the town, including, but not limited to, any adjustment to sewer rates paid by the town users. Bids shall be based on detailed plans and specifications and the contract shall be awarded to the lowest responsible and eligible bidder. The contractor may act as an agent of the town in solicitation of bids for the construction of any new capital improvement or for any renovation, modernization, installation, repair or replacement work pursuant to this section; provided that the town shall cause a qualified wastewater engineer to independently assess the need for such capital improvement, renovation, modernization, installation, repair or replacement work and to review and approve the contractor's proposed plans and specifications prior to advertising for bids. Based on the recommendation of the qualified wastewater engineer, the town may approve, modify, or reject the contractor's proposed plans and specifications.

SECTION 7. Notwithstanding any general or special law or regulation to the contrary, the department of environmental protection may issue project approval certificates with respect to the design/build contract or contracts procured by the town under this act for operation and maintenance, repair or replacement, design, construction, installation and modifications to the sewer works system, and any such design/build services included in such contract or contracts shall be eligible for assistance under the Massachusetts Water Pollution Abatement Trust established by section 2 of chapter 29C of the General Laws, and any future revolving loan fund programs established by the commonwealth or the department of environmental protection.

SECTION 8. The selected offeror shall furnish to the town performance bonds, payment bonds, or other forms of security for the selected offeror's obligations, and insurance, satisfactory to the Town.

SECTION 9. The following words as used in this act shall, unless the context requires otherwise, have the following meanings:

"Sewer works system", the proposed and/or existing sewer works system, including, without limiting the generality of the foregoing, traditional and non-traditional technologies, all works, instrumentalities or parts thereof, all main, trunk, intercepting, connecting, lateral, force mains, private property components (as accepted by the town), and other adjuncts thereto, wastewater treatment facilities, effluent disposal facilities, septage receiving and treatment facilities, and pump stations and any other property or interests in property, real or personal, incidental to and included in such sewer works system, and all facilities, betterments, extensions, improvements and enlargements thereto.

SECTION 10. All contracts or subcontracts for new construction, renovation, modernization, improvement or capital improvements to the town of Orleans’ sewer works system shall be awarded only to persons or entities whose bids or proposals are subject to such persons or entities being signatory to a project labor agreement with the appropriate labor organizations which shall include an obligation for such labor organizations and its constituent members not to strike with respect to the work on such construction project and which shall also establish uniform work rules and schedules for the project. Such project agreement shall be entered into in order to facilitate the timely and efficient completion of the construction of such improvements and to make available a ready and adequate supply of highly trained, skilled craft workers who shall provide a negotiated commitment to assure labor stability and labor peace over the life of this project. The applicable entity responsible for any construction, renovation, modernization, improvement or capital improvement to the town's sewer works system shall designate a general contractor, project manager or similar construction firm which is familiar in the negotiation and administration of project labor agreements to manage and oversee the construction of the project, including the development and implementation of labor relations policies for the project, and to instruct such general contractor, project manager or other construction firm to negotiate a mutually agreeable project labor agreement covering the above described work.

SECTION 11. This act shall take effect upon its passage.

Name:	District/Address:	Date Added:
Sarah K. Peake	4th Barnstable	6/1/2017
Julian Cyr	Cape and Islands	6/1/2017