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The 192nd General Court of the Commonwealth of Massachusetts

Section 64: Request for proposals; content of public–private agreement

Section 64. (a) The request for proposals shall contain the proposed form of contract or public-private agreement to be executed between the successful offeror and the department upon award, and shall have been approved as to content and form by the special public-private infrastructure oversight commission and by the department before the request for proposals is issued, pursuant to section 63. The inspector general and the attorney general shall have 30 days from the receipt of a draft of the proposed form of contract to notify the special public-private infrastructure oversight commission in writing of any material objections to the draft form of contract. Before issuing any request for proposal, the department shall prepare a written response to reports submitted to it by the special public-private infrastructure oversight commission which response shall state the basis for any substantial divergence between the actions of the department and the recommendations contained in such reports of said commission. The department and the successful offeror shall only make non-material changes in the content and form of the public-private agreement contained in the request for proposals.

(b)(1) After selecting a solicited or unsolicited proposal for a public-private initiative, the department shall enter into the public-private agreement for the subject transportation facility with the selected private entity.

(2) An affected jurisdiction may be a party to a public-private agreement entered into by the department and a selected private entity or combination of private entities.

(c) A public-private agreement under sections 62 to 73, inclusive, shall provide for the following:

(1) the planning, acquisition, engineering, financing, development, design, construction, reconstruction, replacement, improvement, maintenance, management, repair, leasing or operation of a transportation facility including provisions for the replacement and relocation of utility facilities;

(2) the term of the public-private agreement, which shall not exceed 50 years without written approval of the governor;

(3) the type of property interest, if any, the private entity shall have in the transportation facility;

(4) a description of the actions the department may take to ensure proper maintenance of the transportation facility;

(5) whether user fees will be collected on the transportation facility and the basis by which such user fees shall be determined and modified;

(6) compliance with applicable Federal, state and local laws;

(7) grounds for termination of the public-private agreement by the department or operator;

(8) procedures for amendment of the agreement by mutual agreement and for changes in the agreement by written order from the department;

(9) review and approval by the department of the operator's plans for the development and operation of the transportation facility;

(10) inspection by the department and the independent peer reviewer of the design and construction of, or improvements to, the transportation facility;

(11) maintenance by the operator of a policy of liability insurance or self-insurance reasonably acceptable to the department;

(12) filing by the operator, on a periodic basis, of appropriate financial statements in a form acceptable to the department;

(13) filing by the operator, on a periodic basis, of traffic reports, service quality standards as defined in chapter 161A, ridership reports, on time performance reports, or other reports identified by the department, in a form acceptable to the department;

(14) financing obligations of the operator and the department;

(15) apportionment of expenses between the operator and the department;

(16) the rights and duties of the operator, the department, and other state and local governmental entities with respect to use of the transportation facility;

(17) the rights and remedies available in the event of default or delay;

(18) the terms and conditions of indemnification of the operator by the department, as required by applicable law;

(19) assignment, subcontracting or other delegation of responsibilities of the operator or the department under the agreement to third parties, including other private entities and other state agencies;

(20) sale or lease to the operator of private property related to the transportation facility;

(21) if, and how, the parties shall share costs of development of the project;

(22) if, and how, the parties shall allocate financial responsibility for cost overruns;

(23) liability for nonperformance;

(24) any incentives for performance;

(25) any accounting and auditing standards to be used to evaluate progress on the project;

(26) the operator's plans to obtain a labor and material payment bond, in accordance with section 29 of chapter 149, covering all construction, reconstruction or maintenance, including capital maintenance, work of the project and require the payment of prevailing wages for labor performed on the project in accordance with sections 26 to 27H, inclusive, of said chapter 149;

(27) the operator's plans for labor harmony for the entire term of the agreement, including construction, reconstruction and capital and routine maintenance and adequate remedies to address the operator's failure to maintain labor harmony which shall include, but not be limited to, assessment of liquidated damages and contract termination;

(28) traffic enforcement and other policing issues, subject to section 71, including any reimbursement by the private entity for such services; and

(29) other terms and conditions.