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  • Acts
  • 2002
  • Chapter 214 AN ACT AUTHORIZING THE CITY OF HOLYOKE TO ENTER INTO CONTRACTS FOR A SEWER WORKS SYSTEM AND OPERATION.

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 Holyoke, acting by and through its board of public works may, notwithstanding 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 the existing sewer works system, necessary to ensure adequate services and ensure the ability of the city's sewer works system, as such terms are defined in section 10, 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 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 capital 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 mandatory performance guarantees that the selected offeror will be required to meet in operating 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 mandatory 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 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 1 additional term not exceeding 5 years. Any renewal or extension shall be at the sole discretion of the city of Holyoke 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 sewer works system and to operate, maintain, repair and replace the sewer works system as necessary to ensure the ability of the 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.

(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 sewer works system.

SECTION 3. Notwithstanding section 2-352 of the Holyoke code of ordinances, for the purposes of this request for proposals, the chief procurement officer shall be the superintendent of the department of public works. 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 nonnegotiable; 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 nonnegotiable 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 nonnegotiable 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 board of public works, 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 city and offeror 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 regarding the subject matter of this act, in order to maintain stable and productive labor relations and to avoid interruption of the operation of the sewer works system and to preserve the health, safety and environmental conditions of residents of the city of Holyoke and surrounding communities, that any and all employees, as applicable, hereinafter referred to as system employees, working on the operation and maintenance of the sewer works system, be offered employment by any party entering into a contract with the city for the operation and maintenance of the sewer system, and it shall be a mandatory term of any request for proposals, that any party entering into a contract shall employ all system employees employed at the 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, it shall be a mandatory term of any such request for proposals that 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 combined value of the salary and benefits package provided to such employees by the city and that the party shall accept assignment and assume existing collective bargaining agreements and adopt all terms and conditions of employment provided by said collective bargaining agreements. It shall also be a mandatory term of any request for proposals that during the unexpired term of any existing collective bargaining agreement and upon the termination of such collective bargaining agreements that the party shall 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 sewer works system. Notwithstanding any other provisions of this act, any proposal 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 board of public works shall determine to be in the best interests of the city of Holyoke and shall be subject to the approval of the mayor. Any such contract shall provide that prior to the construction, modification or installation of new equipment and systems, the city shall cause a qualified 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 in accordance with adjustment factors as determined by the city, the city shall cause a qualified 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 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 in accordance with adjustment factors as determined by the city, not specifically included in the initial contract or contracts for the 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 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 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 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 wastewater engineer, as applicable, the city may approve, modify, or reject the contractor's proposed plans and specification.

SECTION 8. Notwithstanding 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 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, 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:-

"Sewer works system", the existing sewer works system in the possession of and under the jurisdiction, ownership, control and regulation of the city of Holyoke 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, wastewater treatment facilities and pump stations and combined sewer overflow consolidation and treatment facilities 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.

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

Approved August 6, 2002.