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  • Acts
  • 2000
  • Chapter 237 AN ACT RELATIVE TO COMPLIANCE WITH LIFE SAFETY CODES, REMEDIATION OF ENVIRONMENTAL HAZARDS AND THE PRESERVATION AND MANAGEMENT OF THE COMMONWEALTH'S REAL PROPERTY ASSETS.

Whereas , The deferred operation of this act would tend to defeat its purpose, which is to provide forthwith for management of certain real property assets of the commonwealth, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.


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. To provide for construction, renovation, reconstruction, alteration, improvement, demolition, expansion, studies, preparation of plans and specifications, preservation and management of the commonwealth's real property assets, compliance with life safety codes, remediation of environmental hazards and repair, including furnishings and equipment, of state-owned property, the commissioner of the division of capital management and maintenance may spend the sums set forth in this act for the several purposes of this act, subject to the provisions of law regulating the disbursement of public funds and the approval thereof.

SECTION 2.

EXECUTIVE OFFICE FOR ADMINISTRATION AND FINANCE.

Division of Capital Management and Maintenance.

1102-7943

For the removal or encapsulation of asbestos materials, or both, in state-owned buildings, including, if necessary, studies and the preparation of plans .......................................$15,000,000

1102-7944

For renovations, reconstruction, alterations and improvements to state-owned buildings for compliance with the Americans with Disabilities Act, to make the facilities functional for the physically handicapped in accordance with the provisions of section 13A of chapter 22 of the General Laws and other applicable laws and regulations ......................$5,000,000

1102-7947

For project programming, studies and environmental impact reports, including cost estimates, for state agencies, excluding counties ...............$5,000,000

1102-7948

For the purpose of appropriate asset management and disposition of state-owned property including, but not limited to, repairs, renovations, construction and removal of environmental hazards, demolition, maintenance and, if necessary, studies and the preparation of plans ...................$15,000,000

SECTION 3.

EXECUTIVE OFFICE FOR ADMINISTRATION AND FINANCE.

Division of Capital Asset Management and Maintenance.

1102-8940

For the installation of sprinkler systems at facilities throughout the commonwealth to achieve compliance with section 200 of chapter 6 and chapter 148 of the General Laws including, if necessary, studies and the preparations of plans and other costs reasonably related thereto .......................... $10,000,000

1102-8944

For the relocation, repair, reconfiguration and restoration of walls, partitions, ceilings and flooring, including relocation and protection of utilities and, if necessary, studies and the preparation of plans to achieve the consolidation and appropriate use and disposition of state-owned office space at various institutions of the commonwealth ..................... $2,000,000

1102-8945

For the purpose of complying with environmental laws and regulations applicable to state facilities, implementing sound environmental practices at the facilities, remediating conditions which constitute threats to public health or the environment including, but not limited to, costs related to the environmental remediation projects undertaken by state agencies pursuant to executive order 350, the governor's clean state initiative, so-called, and the removal or replacement, or both, of underground storage tanks and the remediation of environmental damage related thereto ....................... $38,000,000

1102-8947

For the costs of emergency repairs, to capital assets requiring immediate attention as identified by the engineering survey required by item 1102-1991 in section 2A of chapter 55 of the acts of 1999; provided, that the division shall submit to the house and senate committees on ways and means quarterly reports of all such planned repairs .................$27,000,000

SECTION 4. The state treasurer may borrow from time to time on the credit of the commonwealth such sums of money as may be necessary for the purposes of meeting payments authorized by sections 2 and 3 and may issue and renew from time to time notes of the commonwealth therefor, bearing interest payable at such times and at such rates as shall be fixed by the state treasurer. Such notes shall be issued and may be renewed one or more times for such terms, not exceeding one year, as the governor may recommend to the general court in accordance with Section 3 of Article LXII of the Amendments to the Constitution, but the final maturities of such notes, whether original or renewal, shall be not later than June 30, 2005. Notes and interest thereon issued under the authority of this section, notwithstanding any other provision of this act, shall be general obligations of the commonwealth.

SECTION 5. To meet the expenditures necessary in carrying out the provisions of section 2, the state treasurer shall, upon request of the governor, issue and sell bonds of the commonwealth, in an amount specified by the governor from time to time, but not exceeding, in the aggregate, the sum of $40,000,000. All bonds issued by the commonwealth as aforesaid shall be designated on their face, Capital Outlay Loan, Act of 2000, and shall be issued for such maximum terms of years, not exceeding 20 years, as the governor may recommend to the general court pursuant to Section 3 of Article LXII of the Amendments to the Constitution, but all such bonds shall be payable not later than June 30, 2021. Bonds and interest thereon issued under the authority of this section, notwithstanding any other provision of this act, shall be general obligations of the commonwealth.

SECTION 6. To meet the expenditures necessary in carrying out the provisions of section 3, the state treasurer shall, upon request of the governor, issue and sell bonds of the commonwealth, in an amount specified by the governor from time to time but not exceeding, in the aggregate, the sum of $77,000,000. All bonds issued by the commonwealth as aforesaid shall be designated on their face, Capital Outlay Repair Loan, Act of 2000, and shall be issued for such maximum term of years, not exceeding ten years, as the governor may recommend to the general court pursuant to Section 3 of Article LXII of the Amendments to the Constitution, but all such bonds shall be payable not later than June 30, 2011. Bonds and interest thereon issued under the authority of this section, notwithstanding any other provision of this act, shall be general obligations of the commonwealth.

SECTION 7. Section 38G of chapter 7 of the General Laws, as appearing in the 1998 Official Edition, is hereby amended by inserting after subsection (c) the following two subsections:-

(d) Notwithstanding the provisions of any general or special law to the contrary, all public entities within the commonwealth, agencies and authorities of the commonwealth and municipal entities within the commonwealth, including departments, boards, committees or commissions shall be entitled to withhold up to 5 per cent of contract fees earned and invoiced as part of professional service contracts, during the life of the contract. Withheld fees shall be held for not longer than two invoice periods when the contractor is permitted to invoice monthly, or until successful completion of the next contract phase or stage when the contractor is permitted to invoice by project phase or stage. When the work covered by the contract is completed, all remaining withheld fees shall be paid to the contractor within two months from the date of completion. If the withholdings are not paid to the contractor within the stipulated time limit, the amount of the withholding in arrears shall be increased at a 12 per cent annual rate.

(e) Notwithstanding the provisions of any general or special law to the contrary, agencies and authorities of the commonwealth and municipal entities within the commonwealth, including departments, boards, committees or commissions, shall pay all outstanding withheld fees on professional service contracts, when the withholding has been held for longer than two invoice periods for active contracts, or that remains withheld on contracts which have been completed, or for which the work of the contractor has been completed.

SECTION 8. Section 40G of said chapter 7, as so appearing, is hereby amended by striking out, in line 12 the word "five" and inserting in place thereof the following word:- ten.

SECTION 9. Said section 40G of said chapter 7, as so appearing, is hereby further amended by striking out the third paragraph.

SECTION 10. Item 1100-7985 of section 1B of chapter 152 of the acts of 1997 is hereby amended by inserting after the words "October 31, 1998", the following words:- "; provided further that not less than $1,630,000 of said $25,000,000 shall be expended for renovation and reconstruction of certain portions of the Elm street municipal garage in the city of New Bedford in order to provide the infrastructure necessary to accommodate a hotel facility and conference center at the site of the municipal garage".

SECTION 11. Notwithstanding the provisions of any general or special law to the contrary, the entire gross square footage of a building or structure owned by the commonwealth and subject to the provisions of section 26A of chapter 148 of the General Laws shall comply with the provisions of said section 26A not later than December 31, 2002.

SECTION 12. Notwithstanding the provisions of any general or special law to the contrary, the unexpended balances of the following bond-funded authorizations shall cease to be available for expenditure on the effective date of this act: 5095-8874 and 8200-8842.

SECTION 13. The commissioner of capital asset management and maintenance may, notwithstanding chapter 7 of the General Laws, grant easements for drainage, access, utilities and other purposes, as deemed necessary by the commissioner to carry out the purposes of this act.

SECTION 14. The commissioner of capital asset management and maintenance may acquire by purchase, or by eminent domain pursuant to chapter 79 of the General Laws, or otherwise, any and all interests in land and buildings deemed necessary by said commissioner to carry out the purposes of this act including, but not limited to, easements for drainage, access, utilities and environmental mitigation.

SECTION 15. The city of Everett may use a certain portion of land consisting of 4.8 acres conveyed to the city for park and recreation purposes for the construction, maintenance and use of schools and educational facilities, facilities for athletic, sports and community programs and activities, and for general recreational uses. Said parcel is shown on the city of Everett assessor's records as Parcel N4-44-02 (Glendale Park). The change in use of said portions of said park is contingent upon suitable replacement park lands being provided, as approved by the secretary of environmental affairs and the National Park Service.

SECTION 16. It is hereby found and declared (1) that the reuse and renovation of the Leverett Saltonstall state office building property located at 100 Cambridge Street in the city of Boston, as outlined in this section and sections 17 to 26, inclusive, is beneficial for the economic development of the commonwealth, the general welfare of its citizens and in furtherance of a public purpose; (2) that the secretary of administration and finance conducted a public solicitation of interest from public and private entities in accordance with section 55 of chapter 68 of the acts of 1999; (3) that said secretary has recommended that, based on the proposal submitted by the Massachusetts Development Finance Agency created pursuant to chapter 23G of the General Laws, said agency is best suited to undertake the redevelopment of the Saltonstall building property, including use of portions thereof for private purposes notwithstanding the prior public use thereof; and (4) that the designation of said agency as the developer of the project pursuant to the terms hereof is in the best interests of the commonwealth.

SECTION 17. As used in sections 16 to 26, inclusive, the following words shall have the following meanings unless the context clearly requires otherwise:

"Agency", the Massachusetts Development Finance Agency or, if the agency shall be abolished, the board, body or commission succeeding to the principal functions thereof or to whom the powers given to the agency in sections 17 to 26, inclusive, shall be given by law.

"City", the city of Boston.

"Commissioner", the commissioner of capital asset management and maintenance.

"Commonwealth", the commonwealth of Massachusetts.

"Developer", the agency or, if so designated by the agency and the commissioner, the Subsidiary created in section 23.

"Development team", the professionals, contractors and other persons so designated by the developer to proceed with and complete the project chosen and retained by the developer both prior to the effective date of this section and sections 17 to 26, inclusive.

"Project", the planning, design, acquisition, purchase, ownership, lease, use, reuse, rehabilitation, renovation, improvement, furnishing, equipping, construction, reconstruction, operation, development, mortgaging and sale, to the extent such sale may be permitted by section 18, or any combination of the foregoing, of the Saltonstall building and project-related buildings in furtherance of the redevelopment of the Saltonstall building, and any components thereof in accordance with the terms hereof. "Project" shall include the construction of a public memorial garden in honor of the victims of violent crimes. Whenever appropriate, the terms shall also mean all lands, buildings, structures, parking and appurtenances.

"Project-related buildings", lands and buildings within the commonwealth owned by the commonwealth, the agency or the developer which are designated by the commonwealth, acting by and through the commissioner, and the agency as "project-related buildings" and which will be used to provide sufficient amounts of office space for the commonwealth, as mutually determined by the commissioner and the developer, to accommodate state offices.

"Proposal", the proposal submitted by the agency to the secretary pursuant to section 55 of chapter 68 of the acts of 1999, as the same may be modified from time to time so long as any such modifications are not fundamentally inconsistent with the originally submitted proposal as determined in the reasonable judgment of the commissioner and the agency.

"Saltonstall building", the Leverett Saltonstall state office building located at 100 Cambridge Street in the city of Boston, together with the land on which the building is located, its parking and surrounding land, as more specifically identified in the proposal, and utilities, improvements and appurtenant rights and easements related thereto.

"Secretary", the secretary of administration and finance.

"Subsidiary", the MassDevelopment/Saltonstall Building Redevelopment Corporation created in section 23.

SECTION 18. For purposes of the project, the commonwealth, acting by and through the commissioner, may convey to the developer, and the developer may acquire, in that part of the Saltonstall building or project-related buildings which is to be used for residential housing, by purchase, and in all other parts of the Saltonstall building or project-related buildings by lease, as further described below, all lands, properties, rights, air rights, sub-surface rights, easements and other interests of any kind or nature, without limitation, in and to the Saltonstall building or project-related buildings in order to develop, sell, lease, construct, improve, furnish, equip, finish and otherwise carry out the project thereon, and to own, operate, lease, sub-lease, license, promote, maintain, improve and rehabilitate the same, either directly or indirectly, in whole or in part, through agents, lessees, contractors, concessionaires or others, subject to the provisions of sections 16 to 26, inclusive. The term of such lease shall be not longer than 50 years with extension terms the aggregate of which shall not exceed 30 years. Without limiting the foregoing, the conveyance and acquisition authorized for such portion of the project as shall consist of housing may be by means of condominium units whereby, subject to a declaration of condominium which the commonwealth may in such case make, portions are conveyed in fee and portions are leased as aforesaid. No member of the development team shall be precluded by section 7 of chapter 268A of the General Laws from participating by contract in the activities of the agency or the developer with regard to the project solely by reason of a financial interest, directly or indirectly, in any contract or extension thereof for services with respect to the preparation of the proposal prior to the effective date of sections 16 to 26, inclusive, but this exemption shall not apply to an employee or member of the board of the agency or subsidiary.

SECTION 19. Notwithstanding the provisions of any general or special law or rule or regulation or ordinance to the contrary, the commissioner of public safety or his designee in the division of inspection of the department of public safety shall be solely responsible for inspection, enforcement, permitting and licensure of the project or any part thereof authorized or required by chapter 143 of the General Laws or section 21 of chapter 40 of the General Laws and regulations referred to therein or adopted pursuant thereto. The project also shall be exempt from compliance with any local zoning code, including the city's zoning code, and any regulations promulgated thereunder. The developer shall subject the project to large project review by the Boston Redevelopment Authority as set forth in subsections 1-5 of section 80B-3 of the city's zoning code, and the developer shall, prior to the commencement of any renovation or construction related to the project, enter into a cooperation agreement with the Boston Redevelopment Authority which agreement shall: (1) establish the terms for the review by the Boston Redevelopment Authority of the project under said subsections 1-5 of said section 80B-3, of the city's zoning code; (2) provide for review and approval by the Boston Redevelopment Authority of schematic design plans, design development plans and contract documents for the project; (3) establish the developer's acceptance of the city's goals and objectives for affordable housing with respect to the residential component of the project; and (4) require the developer to submit to the Boston Redevelopment Authority a fair housing marketing plan with respect to the residential component of the project.

SECTION 20. In order to effectuate the purposes of sections 16 to 26, inclusive, and notwithstanding the provisions of any general or special law or rule or regulation to the contrary, the developer may utilize alternative methods for the procurement of design and construction services including, but not limited to, construction management, design-build, fast track or phased construction. The project shall be exempt from the provisions of sections 38A to 38O, inclusive, of chapter 7 of the General Laws, sections 44A to 44M, inclusive, of chapter 149 of the General Laws, section 39M of chapter 30 of the General Laws and any other general or special law or rule or regulation providing for the advertising, bidding or awarding of contracts for planning, design, construction, reconstruction or improvements to or the disposition or acquisition of real property, but the provisions of sections 26 to 27F, inclusive, of said chapter 149 shall apply to the project and section 29 of said chapter 149 shall apply to the project. No person, party or entity shall have any rights in and to the Saltonstall building under chapter 254 of the General Laws. The developer may enter into labor agreements concerning the project.

Notwithstanding such exemptions, the procedures to be followed and the terms and conditions of such procurement process, including written procedures for the selection of construction, design and other professionals for the project, shall be determined by the developer in consultation with and subject to review by the inspector general as set forth in this section, and the procedures shall also be approved by the board of directors of the agency. The inspector general shall comment in writing on such procurement process and shall submit such comments to the developer, the joint committee on state administration and the house and senate committees on ways and means not less than 30 days before the developer begins the procurement of design and construction services.

In order to effectuate an open, competitive and fair procurement and an effective contracting process, the developer shall not less than 45 days prior to the advertisement of the invitation for competitive bids using the procurement process, submit to the inspector general all procedures and criteria developed for the implementation of the alternative method, including a description of the project, the construction bid package and evaluation criteria. The inspector general shall submit written comments on the procedures to the developer not less than 30 days prior to the advertisement. The developer shall submit the procedures and criteria and the comments of the inspector general to the joint committee on state administration and the house and senate committees on ways and means at least 15 days prior to the advertisement for any contract to be awarded on the basis of an alternative method. Such procedures and criteria shall be approved by a vote of the board of directors of the agency. The developer shall submit to the committees a report of the results of such procurement. If the developer awards the contract to other than the lowest responsive bidder, the developer shall submit to said committees and to the inspector general a written justification describing in detail why such award is in the best interests of the developer.

The developer may designate a project manager for the project to serve as the developer's agent and consultant during the planning, design and construction of the project. The project manager's services shall include, but need not be limited to, monitoring the planning and programming and providing advice and consultation with respect to design, value engineering, cost estimating, scheduling and construction and the selection, negotiation with and oversight of a designer and a construction manager for the project. The project manager shall be selected pursuant to a publicly-advertised request for qualifications, which shall include the entity's experience with the design and construction of similar projects, its performance on prior projects and such other factors as the developer deems appropriate.

The developer shall prepare a final report which shall evaluate the effectiveness of such procurement process in terms of time and cost savings, as well as the quality of services, impact on the public, and any other impacts of such procurement process and the developer shall file his report with the joint committee on state administration and the house and senate committees on ways and means not later than six months from the completion of such project. Notwithstanding this section or the provisions of any special or general law to the contrary, the developer and the agency may bring the project, excluding the project-related buildings, to completion using the services of the development team in accordance with the terms of sections 16 to 26, inclusive. The developer may change any member of the development team in accordance with this section.

SECTION 21. In undertaking the project, the developer shall: (i) take all steps legally allowable in hiring Boston residents in accordance with the provisions of the hiring goals as contained in the Boston Jobs for Boston Residents policy, so-called, city of Boston code: ordinances, section 12-10; and (ii) comply with the city of Boston's policy and standards relative to contracting with minority and women-owned business enterprises, pursuant to the city of Boston code: ordinances, section 4-4. The developer shall comply with provisions of the Executive Order 390 of 1996 to the same extent as a state agency, but nothing in this section shall be construed to restrict the developer's authority to contract with a private party by lease, sublease, mortgage or contract for the sale of real estate. In meeting the requirements of the preceding sentence, the developer shall consult with the executive director of the office of minority and women business assistance in the executive office for administration and finance.

SECTION 22. The commissioner may, notwithstanding the provisions of any general or special law or rule or regulation to the contrary, enter into one or more leases with the developer for office space in the Saltonstall building and project-related buildings upon such terms and conditions as the commissioner and the developer shall deem appropriate, for the leasing of space in 50 per cent of the office space and related parking area to be redeveloped in the Saltonstall building and such other space as the commissioner shall determine with respect to the project-related buildings. The term of such lease shall be not more than 50 years with extension terms the aggregate of which shall not exceed 30 years, but shall not extend beyond the term of any lease of such portion of the improvements from the commonwealth to the developer entered into pursuant to section 18.

SECTION 23. There is hereby created a body politic and corporate to be known as the MassDevelopment/Saltonstall Building Redevelopment Corporation, hereinafter referred to as the "subsidiary". The subsidiary is hereby constituted a public instrumentality and the exercise by the subsidiary of the powers conferred by sections 16 to 26, inclusive, shall be deemed to be the performance of an essential governmental function. The subsidiary is hereby placed within and under the control and supervision of the agency and, except as otherwise specifically set forth herein, shall be treated in all respects as a wholly-owned subsidiary of the agency. The subsidiary shall be governed and its corporate powers exercised by the board of directors of the agency. The agency shall have the power to supervise, control, direct and otherwise administer all of the affairs and activities of the subsidiary. The subsidiary shall have no employees or assets other than as expressly set forth herein. The subsidiary shall continue in existence for so long as it shall have outstanding obligations hereunder and until its existence has been terminated by law or by the agency. Upon the termination of the existence of the subsidiary, all of its rights, title and interest in and to all of its assets and all of its obligations, duties, covenants, agreements and obligations shall vest in and be performed by the agency.

SECTION 24. If so designated by the agency and the commissioner, the subsidiary shall have the powers to be the developer hereunder as well as those powers necessary or convenient to carry out and effectuate the purposes of sections 16 to 26, inclusive, including, without limitation, in addition to any other powers conferred hereunder, any and all of the powers of the agency under section 3 of chapter 23G of the General Laws for purposes of implementing sections 16 to 26, inclusive. The provisions of clauses (d), (f) to (i) inclusive and (l) of section 2 of chapter 23G shall apply as well to the subsidiary.

SECTION 25. The subsidiary shall be a separate and distinct legal entity from the agency. Notwithstanding any other term contained in sections 16 to 26, inclusive, or any general or special law or rule or regulation, unless expressly otherwise agreed to by the agency in writing, the agency shall not be liable or held legally responsible in any way for any of the actions, activities, property, assets or other liabilities or obligations of the subsidiary. The obligations of the subsidiary, including any obligations in respect to any bonds issued by the agency for the subsidiary's benefit under said sections 16 to 26, inclusive, shall not be a general obligation of either the agency or the commonwealth or a pledge of the faith and credit of either the agency or the commonwealth. Further, any bonds issued by the agency hereunder shall not constitute a debt or a pledge of the faith and credit of the commonwealth, but shall be payable solely from the revenues provided for under the relevant financing documents in connection therewith. All such bonds issued by the agency shall state that the bonds are not an obligation of the commonwealth but are payable solely from the funds specifically pledged for their payment.

SECTION 26. In addition to the powers granted to the agency under chapter 23G of the General Laws, the agency may issue bonds for the purposes of financing any costs related to the project including, without limitation any amounts paid or payable by the agency or the subsidiary with respect to the project or the financing thereof, the establishment and funding of any reserve funds, the payment of interest on bonds during any construction period and any other time and all costs of issuance of the bonds, and may lend the proceeds to the subsidiary, all in accordance with and subject to the provisions of section 8 of said chapter 23G to the extent not inconsistent with sections 16 to 26, inclusive. The last two paragraphs of subsection (a) of said section 8 of said chapter 23G and the second sentence of subsection (b) of said section 8 of said chapter 23G shall not apply to any such financing or bonds issued. For purposes of such bonds, the project may be deemed to constitute either an "industrial development facility", "economic development project" or a loan to a public body under subsection (c) of said section 8 of said chapter 23G or any combination of the foregoing.

SECTION 27. Within six months of the effective date of the act, all public entities within the commonwealth shall submit a detailed report to the executive office for administration and finance specifying the total amount of retainage currently being held against professional service contracts under the provisions of subsection (d) of section 38G of chapter 7 of the General Laws.

All fee withholding withheld under the provisions of said subsection (d) of said section 38G of said chapter 7 shall be paid to contractors within three years of the effective date of this act. Amounts withheld for contractors not paid within six months of the effective date of this act shall increase at a 12 per cent annual rate. Public entities may submit requests to the executive office of administration and finance for reimbursement of withheld fees paid to contractors under said section 386.

Approved August 10, 2000.