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  • Acts
  • 2003
  • Chapter 84 AN ACT AUTHORIZING THE TOWN OF LEE TO ENTER INTO CONTRACTS FOR CONSTRUCTION, OPERATION AND MAINTENANCE, LEASE AND MODIFICATION OF ITS 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. (a) Notwithstanding any general or special law to the contrary, the town of Lee may enter into contracts for the lease, operation and maintenance, financing, design and construction of new facilities or modifications and installation of new equipment and systems at its water and wastewater treatment facilities, its collection, distribution and disposal systems, sources of water supply, and pump stations in this act referred to as facilities to ensure adequate services and to ensure the ability of the town's facilities to operate in full compliance with all applicable requirements of federal, state and local laws; 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), clause (3) of paragraph (e) and paragraph (g) of section 6, and sections 13 and 16 of said chapter 30B.

(b) The requests for proposals for such contracts shall specify the method for comparing proposals to determine the proposal offering the lowest overall cost to the town. If the town awards a contract to an offeror who did not submit the proposal offering the lowest overall cost, the town 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 designing, constructing or operating the facilities. 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 facilities are capable of meeting the performance guarantees.

SECTION 2. (a) Notwithstanding any general or special law to the contrary, contracts awarded under section 1 may provide for a term not exceeding 20 years and an option for renewal or extension of operations and maintenance services for 1 additional term not exceeding 5 years. The renewal or extension shall be at the sole discretion of the town of Lee in accordance with the original contract terms and conditions or contract terms and conditions more favorable to and acceptable to the town. Contracts entered into under this act may provide that, subject to a majority vote of town meeting, the town shall not be exempt from liability for payment of the costs to finance, permit, design and construct new facilities, modifications or installation of new equipment and systems at the facilities necessary to ensure the ability of the facilities to operate in full compliance with all applicable requirements of federal, state and local laws; provided, however, that such costs shall be amortized over a period that is no longer than the useful life of such facilities. The town's payment obligations for all operations and maintenance services shall be conditioned on the contractor's performance of such services in accordance with all contractual terms.

(b) Contracts entered into under 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, facility or land lease, 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 facilities, and the management, operation, maintenance, and repair thereof.

SECTION 3. The chief procurement officer of the town of Lee shall solicit proposals through requests 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 proposed key contractual terms and conditions to be incorporated into the contract, some of which may be deemed mandatory or nonnegotiable; provided, however, that the requests for proposals may request proposals or offer options for fulfillment of other contractual terms and such other matters as may be determined by the town. 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 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 town's best interests, the chief procurement officer may determine the next most advantageous proposal from a responsible and responsive offeror taking into consideration price, estimated life-cycle costs and 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. The chief procurement officer shall recommend to the board of selectmen the award of 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. If the board of selectmen approves the recommendation of the chief procurement officer, the board of selectmen shall award the contract by written notice to the selected offeror within the time for acceptance specified in the request for proposals. With respect to any contract in excess of 5 years, such award shall be subject to authorization by town meeting. The award shall be subject to sections 5 and 6. 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 town 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 facilities and to preserve the health, safety and environmental conditions of residents of the town of Lee and surrounding communities, that any and all employees, as applicable, hereinafter referred to as facility employees, working on the operation and maintenance of the facilities, be offered employment by any party entering into a contract with the town for the operation and maintenance of the facilities, and it shall be a mandatory term of any request for proposals, that any party entering into a contract shall employ all facility employees employed at the facilities 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 town shall provide a salary and benefits package to all facility employees, which is equivalent to the combined value of the salary and benefits package provided to such employees by the town and that the party shall accept assignment and assume existing collective bargaining agreements and adopt all terms and conditions of employment provided by the 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 facility employees engaged in the operation and maintenance of the sewer works system. Notwithstanding any other provisions of this act, any proposal submitted to the town regarding the subject matter of this act not complying with the above terms, shall be disqualified from further consideration by the town.

SECTION 6. Subject to the provisions of this act, a contract awarded shall be subject to such terms and conditions as the board of selectmen of the town of Lee shall determine to be in the best interests of the town. A contract shall provide that, before the construction of modifications or installation of equipment and systems, the town shall cause a qualified engineer to independently review and approve plans and specifications for such modifications, equipment and systems. A contract shall further provide that before the town's acceptance of any modifications, equipment or systems, including work undertaken under section 8 and estimated to cost more than $100,000, adjusted in accordance with adjustment factors as determined by the town, the town shall cause a qualified engineer to inspect such modifications, equipment and systems and certify that the construction or installation has been completed in accordance with the approved plans and specifications.

SECTION 7. Notwithstanding any general or special law, rule or regulation to the contrary, the department of environmental protection may issue project approval certificates with respect to the contract procured by the town of Lee for facility improvements and any design and construction services included in such 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 or the department of environmental protection.

SECTION 8. The provisions of any general or special law, rule 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 under 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, adjusted in accordance with adjustment factors as determined by the town, not specifically included in the initial contract for the lease, operation and maintenance or design and construction of the 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 or replacement work to be completed without direct or indirect reimbursement from the town of Lee or other adjustment to the fees or costs paid by the town including, but not limited to, any adjustment to rates paid by the town'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 town in the solicitation of bids for the construction of any new capital improvement or for any renovation, modernization, installation or replacement work under this section; provided, however, that the town shall cause a qualified 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 recommendations of the qualified engineer, the town may approve, modify or reject the contractor's proposed plans and specifications.

SECTION 9. The selected offeror shall furnish to the town performance bonds, payment bonds, or other forms of security for the selected offeror's obligations, and insurance, satisfactory to the town.

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

Approved October 9, 2003.