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  • Acts
  • 2000
  • Chapter 390 AN ACT AUTHORIZING THE CITY OF LAWRENCE TO ENTER INTO CONTRACTS FOR THE SALE OR LEASE AND OPERATION AND MAINTENANCE, FINANCING, REPAIR AND REPLACEMENT, DESIGN AND CONSTRUCTION, AND MODIFICATIONS FOR THE WATER WORKS SYSTEM AND SEWER WORKS SYSTEM.

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) The city of Lawrence may, notwithstanding the provisions of any general or special law or regulation to the contrary, enter into a contract or contracts for the lease, operation and maintenance, repair or replacement, financing, design, construction and installation of new facilities or systems and modifications to existing facilities, necessary to ensure adequate services and to ensure the ability of the city's water works system and the sewer works system, as such terms are defined in section 10, to operate, maintain, repair and replace the water works system and sewer works system 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 38A to 38O, 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 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 contract or contracts 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 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 city shall explain the reason for the award in writing.
(c)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. (a) 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 city in accordance with the original contract terms and conditions or contract terms and conditions more favorable to and acceptable to the city.
(b) A contract entered into pursuant to this act may provide that the city 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 works system and sewer works system 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 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 city's payment obligation for services described herein shall be conditioned on the contractor's performance of said 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 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 city's water works system and sewer works system.
(d) Except as to an amount equal to the costs incurred by the city to prepare the request for proposals, evaluate proposals, negotiate the terms of the contract and pay any other related transaction costs, a contract entered into pursuant to this act shall not provide for the city to receive any payment from the contractor to be used by the city to fund operating expenses of the city with the repayment of such contractor payment by the city being amortized over the term, or any portion thereof, of such contract.

>SECTION 3. The chief procurement officer shall solicit proposals through a request for proposals which shall include those items in clauses$N(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. 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 city'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 evaluation criteria set forth in the request for proposals, and the terms of the negotiated contract. Subject to the approval of the mayor, 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 city and of any contract entered into by the city 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 city, shall require, in order to maintain stable and productive labor relations and to avoid interruption of the operation of the water works system and sewer works system and to preserve the health, safety and environmental conditions of residents of the city of Lawrence and surrounding communities, that any and all employees, as applicable, hereinafter referred to as system employees, working on the operation and maintenance of the water works system and sewer works system, be offered employment by any party entering into a contract with the city for the operation and maintenance of the water works system and sewer works system, and further, that any party entering into a contract shall employ all system employees employed at the water works system and sewer works system as of the date of execution of the contract and continue such employment throughout the term of the contract, unless any such employee voluntarily leaves the employ of the party or is terminated for just cause by the party. Furthermore, any party entering into such contract with the city shall provide a salary and benefits package to all system employees which is equivalent to the salary and benefits package provided to such employees by the city. Moreover, the party shall adopt all terms and conditions of employment provided by the last applicable collective bargaining agreement negotiated between the labor organization representing such system employees, if any, and the city shall continue to recognize such terms and conditions of employment until a collective bargaining agreement has been executed between the labor organization representing such system employees and said party. The party shall furthermore agree to meet its legal obligations, including bargaining in good faith, with regard to any labor organization representing system employees engaged in the operation and maintenance of the water works system and sewer works system. Notwithstanding any other provisions of this act, any proposal or contract submitted to the city regarding the subject matter of this act not complying with the above terms, shall be disqualified from further consideration by the city.

>SECTION 6. Any contract or contracts awarded pursuant to this act shall be subject to such terms and conditions as the city shall determine to be in the best interests of the city and shall be subject to the approval of the mayor and the city council. Any such contract shall provide that prior to the construction, modification or installation of new equipment and systems, the city shall cause a qualified water or wastewater engineer, as applicable, 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 7 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 the index, any published index determined by the city to be comparable to the index, the city shall cause a qualified water or wastewater engineer, as applicable, 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 a as provided in thissection. 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 the index, any published index determined by the city to be comparable to the index, not specifically included in the initial contract or contracts for the sale or lease, operation or maintenance, financing, design, construction, repair or replacement, and installation of modifications, new equipment and systems necessary for any particular part of the water works system and 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 city, or other adjustment to the fees paid by the city, including, but not limited to, any adjustment to water or sewer rates paid by the city 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 city 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 city shall cause a qualified water or wastewater engineer, as applicable, 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 or wastewater engineer, as applicable, the city may approve, modify, or reject the contractor's proposed plans and specification. 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 may terminate the contract or contracts under the terms and conditions of the contract or contracts.

>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 or contracts procured by the city under this act for improvements to the water works system and sewer system works, 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, as amended from time to time, 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 city performance bonds, payment bonds, or other forms of security for the selected offeror's obligations, and insurance, satisfactory to the city.

>SECTION 10. The following words as used in this act shall, unless the context requires otherwise, have the following meanings: r> "Sewer works system", the existing sewer works system in the possession of and under the jurisdiction, ownership, control and regulation of the city and its department of public works, including, without limiting the generality of the foregoing, all works, instrumentalities or parts thereof, all main, trunk, intercepting, connecting, lateral, outlet and other sewers, outfalls, storm water sewers including catch basins and surface drains, pumping and ventilating stations, structures, and other adjuncts thereto, 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. r> "Water works system", the existing water supply and distribution system in the possession of and under the jurisdiction, ownership, control and regulation of the city and the department of public works thereof, including, without limiting the generality of the foregoing, all plants, works, instrumentalities or parts thereof, reservoirs, water mains and pipe lines, and other adjuncts thereto, purification, filtration and treatment works and other adjuncts thereto, and any other property or interests in property, real or personal, incidental to and included in such water supply and distribution system, and all facilities, betterments, extensions, improvements and enlargements thereto and to or for the water supply therefor.

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

Approved January 04, 2001.