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The 192nd General Court of the Commonwealth of Massachusetts

AN ACT AUTHORIZING THE LYNN WATER AND SEWER COMMISSION TO ENTER INTO CONTRACTS FOR THE LEASE, FINANCING, DESIGN AND CONSTRUCTION OF MODIFICATIONS FOR THE WATER WORKS SYSTEM AND SEWER WORKS SYSTEM AND THE OPERATION, MAINTENANCE, REPAIR AND REPLACEMENT OF THE WATER AND WASTEWATER TREATMENT PLANTS, PUMP STATIONS AND COMBINED SEWER OVERFLOW CONSOLIDATION AND 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 Lynn water and sewer commission, hereinafter referred to as the commission, established by chapter 381 of the acts of 1982, hereinafter referred to as the enabling act, is hereby authorized, notwithstanding the provisions of any general or special law or regulation to the contrary, to enter into contracts for the lease, financing, design, construction and installation of modifications, new equipment and systems necessary for the water works system and the sewer works system, as such terms are defined in the enabling act, and the operation, maintenance, repair and replacement, of the water and wastewater treatment plants, pump stations, and combined sewer overflow consolidation and treatment facilities, to ensure adequate services and to ensure the ability of said commission's water works system and sewer works system, 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 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; 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, clause (3) of paragraph (e) and paragraph (g) of said section 6 and sections 13 and 16 of said chapter 30B.

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

The request for proposals shall set forth the performance guarantees which the selected offeror will be required to meet in operating the water works system or 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 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. Notwithstanding the provisions of any general or special law to the contrary, a contract or contracts entered into 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 one additional term not exceeding five years. Any renewal or extension shall be at the sole discretion of the commission in accordance with the original contract terms and conditions or contract terms and conditions more favorable to and acceptable to the commission.

A contract entered into pursuant to this act may provide that the commission 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 water works system and sewer works system and to operate, maintain, repair and replace the water and wastewater treatment plants, pump stations, and combined sewer overflow consolidation and treatment facilities as necessary to ensure the ability of the water works system and sewer works system to operate in full compliance with all applicable requirements of federal, state and local law, provided that any costs relating to 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 commission's payment obligation for services described herein 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 deemed necessary to carry out the purposes authorized herein, including, but not limited to, equipment, facility or land 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 commission's water works system and sewer works system and the management, operation, maintenance, repair and replacement of the commission's water and wastewater treatment plants, pump stations, and combined sewer overflow consolidation and treatment facilities.

Nothing in this section shall be interpreted to alter the governance of the Lynn water and sewer commission established by chapter 381 of the acts of 1982.

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 commission. 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 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. The 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, the chief procurement officer determines that it is in the commission'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, the evaluated criteria set forth in the request for proposals, and the terms of the negotiated contract. Subject to the approval of the commission, the 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 5. Notwithstanding any other provisions of this act, it shall be a mandatory term of any request for proposals issued by the commission and of any contract entered into by the commission with any party regarding the subject matter of this act that any party that has entered into a contract pursuant to said terms with the commission, shall require, in order to maintain stable and productive labor relations and to avoid interruption of the operation of the water and wastewater treatment plants and to preserve the health, safety and environmental conditions of residents of the city of Lynn and surrounding communities, that any and all employees, except the plant manager and assistant plant manager at the water and wastewater treatment plants, as applicable, hereinafter referred to as plant employees, working on the operation and maintenance of the water and wastewater treatment plants be offered employment by any party entering into a contract with the commission for the operation and maintenance of said water and wastewater plants, and further, that any party entering into said contract shall employ all plant employees employed at the water and wastewater treatment plants as of the date of execution of said contract and continue such employment throughout the term of said contract, unless any such employee voluntarily leaves the employ of said party or is terminated for just cause by said party. Furthermore, any party entering into said contract with the commission shall provide a salary and benefits package to all plant employees which is comparable to the salary and benefits package provided to such employees by their previous employer. Moreover, said party shall adopt all terms and conditions of employment provided by the last applicable collective bargaining agreement negotiated between the labor organization representing such plant employees, if any, and the applicable employer who has most recently employed such plant employees prior to entering into any contract pursuant to this act and shall continue to recognize such terms and conditions of employment until a collective bargaining agreement has been executed between the labor organization representing such plant employees and said party. Said party shall furthermore agree to meet its legal obligations, including bargaining in good faith, with regard to any labor organization representing plant employees engaged in the operation and maintenance of the water and wastewater treatment plants described herein. Notwithstanding any other provisions of this act, any proposal or contract submitted to the commission regarding the subject matter of this act not complying with the above terms, shall be disqualified from further consideration by the commission.

SECTION 6. Any contract awarded pursuant to this act shall be subject to such terms and conditions as the commission shall determine to be in the best interests of said commission and shall be subject to a majority vote of the commission. Any such contract shall provide that prior to the construction, modification or installation of new equipment and systems the commission shall cause a qualified water and wastewater engineer to independently review and approve plans and specifications for said 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 7 of this act and estimated to cost more than $100,000 adjusted annually per the Construction Cost Index published by the Engineering News Report or if the Engineering News Report ceases to publish said index, any published index determined by the commission to be comparable to said index, the commission shall cause a qualified water and wastewater engineer to inspect said modifications, new 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 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 pursuant to this act, except 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 annually per the Construction Cost Index published by the Engineering News Report or if the Engineering News Report ceases to publish said index, any published index determined by the commission to be comparable to said index, not specifically included in the initial contract for the lease, financing, design, construction and installation of modifications, new equipment and systems necessary for any particular part of the water works system and the sewer works system and the operation, maintenance, repair and replacement of the water and wastewater treatment plants, pump stations, and combined sewer overflow consolidation and treatment facilities, 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 commission, or other adjustment to the fees paid by the commission, including, but not limited to, any adjustment to water or sewer rates paid by the commission 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 commission in the 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 commission shall cause a qualified water and 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 water and wastewater engineer, the commission may approve, modify, or reject the contractor's proposed plans and specifications. A contract awarded pursuant to this act shall provide that in the event that the commission does not approve the contractor's proposed plans and specifications pursuant to this section, the commission or the contractor may terminate said contract under the terms and conditions of said contract.

SECTION 8. Notwithstanding the provisions 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 commission under this act for improvements to the water system works and sewer system works, and any such design/build services included in such contract 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 9. The selected offeror shall furnish to the commission performance bonds, payment bonds, or other forms of security for the selected offeror's obligations, and insurance, satisfactory to the commission.

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

Approved August 5, 1998.