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  • Acts
  • 1997
  • Chapter 41 AN ACT AUTHORIZING THE CITY OF GARDNER TO ENTER CONTRACTS FOR THE SALE OR LEASE AND OPERATION AND MAINTENANCE AND MODIFICATIONS OF WATER AND WASTEWATER TREATMENT 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. The city of Gardner is hereby authorized to enter into contracts for the sale or lease, operation and maintenance, financing, design and construction of new facilities or modifications to existing facilities and installation of new equipment and systems necessary to ensure adequate services and to ensure the ability of said city's water and wastewater treatment facilities to operate in full compliance with all applicable requirements of federal, state and local law; provided, however, that any such contract shall not be subject to the competitive bid requirements set forth in sections 38A½ to 38 O, inclusive, of chapter 7, section 39M of chapter 30 or sections 44A to 44M, inclusive, of chapter 149 of the General Laws; and provided, further, that each such contract shall be awarded pursuant to the provisions of chapter 30B of the General Laws, except for clause (3) of paragraph (b) of section 6, paragraphs (e) and (g) of said section 6, clause (4) of section 13 and section 16 of said chapter 30B.

The request for proposals for such contract shall specify the method for comparing proposals to determine the proposal offering the lowest overall cost to the city, including, but not limited to, all capital financing, operating and maintenance costs. The request for proposals shall also specify the performance tests required prior to acceptance by the city of any equipment, facilities, or facility modifications, and the terms of the performance guarantees for all equipment, facilities, and facility modifications. If the city awards the contract to an offeror who did not submit the proposal offering the lowest overall cost, the city shall explain the reason for the award in writing.

SECTION 2. Notwithstanding the provisions of any general or special law to the contrary, a contract or contracts awarded pursuant to section 1 may provide for a term not exceeding 20 years, and an option for renewal or extension of operations and maintenance services for one additional term not exceeding five years. The renewal or extension shall be at the sole discretion of the city in accordance with the original contract terms and conditions or contract terms and conditions more favorable to and acceptable to the city. A contract entered into pursuant to this act may provide that, subject to a majority vote of the council, the city shall not be exempt from liability for payment of the costs to finance, permit, design and construct modifications or install new equipment and systems at the water and wastewater treatment facility, sewers and pump stations to operate in full compliance with all applicable requirements of federal, state and local law, provided that such costs shall be amortized over a period that is no longer than the useful life of said modifications, equipment and systems. The city's payment obligations for all operations and maintenance services shall be conditioned on the contractor's performance of said services in accordance with all contractual terms.

A contract entered into pursuant to this act may provide for such activities as may be deemed necessary to carry out the purposes authorized herein including, but not limited to, equipment purchases, equipment installation 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 of said city's water and wastewater treatment facilities and related facilities, including pipelines and pump stations.

SECTION 3. The chief procurement officer 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 non-negotiable; 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 city of Gardner. The request for proposals shall provide for the separate submission of price and shall indicate when and how the offerors shall submit the price.

SECTION 4. The chief procurement officer shall designate the individuals responsible for the evaluation of the proposals on the basis of criteria other than price. The designated individuals shall prepare their evaluations based solely on the criteria set forth in the request for proposals. Such criteria shall include all standards by which acceptability will be determined as to quality, workmanship, results of inspections and tests, and suitability for a particular purpose, and shall also include all other performance measures that will be utilized. The evaluations shall specify in writing:

(1) for such evaluation criterion, a rating of each proposal as highly advantageous, advantageous, not advantageous or unacceptable and the reasons for such rating;

(2) a composite rating for each proposal and the reasons for such rating; and

(3) revisions, if any, to each proposed plan for providing the required supplies or services which shall be obtained by negotiation prior to awarding the contract to the offeror of the proposal.

SECTION 5. The chief procurement officer 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. Said chief procurement officer may negotiate all terms of the contract not deemed mandatory or non-negotiable with such offeror. If, after negotiation with such offeror, said chief procurement officer determines that it is in the city of Gardner's best interests, said chief procurement officer 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 non-negotiable with such offeror. Said chief procurement officer shall award the contract to the most advantageous proposal from a responsible and responsive offeror taking into consideration price, estimated life-cycle costs and the evaluated criteria set forth in the request for proposals and the terms of the negotiated contract. Subject to the approval of the mayor and city council said chief procurement officer 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 6. Any contract awarded pursuant to this act shall be subject to such terms and conditions as the mayor and city council of the city of Gardner shall determine to be in the best interests of said city. Any such contract shall provide that prior to the construction, modification or installation of equipment and systems the city shall cause a qualified water and wastewater engineer to independently review and approve plans and specifications for said modifications, equipment and systems. Such contract shall further provide that prior to the city's acceptance of any modifications, equipment or systems, including work undertaken pursuant to section 7 of this act and estimated to cost more than $100,000, the city shall cause a qualified water and wastewater engineer to inspect said modifications, equipment and systems and certify that the construction or installation has been completed in accordance with the approved plans and specifications.

SECTION 7. The provisions of any general or special law or special act or regulation relating to the advertising, bidding or award of contracts, to the procurement of services or to the construction and design 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 pursuant to this act, except as provided in this section. The construction of any new capital improvement or any renovation, modernization, installation, or replacement work estimated to cost more than $100,000, not specifically included in the initial contract for the lease or sale, operation and maintenance, design and construction of the water and wastewater plant, sewers, water mains and pump stations, 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 or replacement work to be completed without direct or indirect reimbursement from the city or other adjustment to the fees or costs paid by the city, including, but not limited to, any adjustment to water or sewer rates paid by the city's residents or businesses. 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 city in the solicitation of bids for the construction of any new capital improvement or for any renovation, modernization, installation or replacement work pursuant to this section, provided that the city shall cause a qualified water and wastewater engineer to independently assess the need for such capital improvement, renovation, modernization, installation 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 water and wastewater engineer, the city may approve, modify, or reject the contractor's proposed plans and specifications. Any contract or contracts awarded pursuant to this act shall provide that in the event that the city does not approve the contractor's proposed plans and specifications pursuant to this section, the city or the contractor may terminate said contract or contracts under the terms and conditions of said contract or contracts.

SECTION 8. Notwithstanding the provision of 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 procured by the city for water and wastewater treatment facility improvements, and such design/build contract shall be eligible for assistance under the 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.

SECTION 9. Prior to the execution of a contract or contracts pursuant to this act, the selected offeror shall furnish to said city of Gardner performance bonds, payment bonds and insurance satisfactory to the city.

SECTION 10. This act shall take effect upon its passage.

Approved July 3, 1997.