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  • Acts
  • 2012
  • Chapter 354 AN ACT RELATIVE TO WASTEWATER TREATMENT IN THE CITY OF FALL RIVER.

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 city of Fall River may enter into contracts for the operation and maintenance, financing, design and construction of modifications and installation of new equipment and systems necessary for the sewer works system to ensure adequate services and to ensure the ability of the city's sewer works system to operate in full compliance with all applicable requirements of federal, state and local law; provided, however, that the contract shall not be subject to sections 14 to 21, inclusive, of chapter 149A of the General Laws and the competitive bid requirements set forth in sections 38A1/2 to 38O, inclusive, of chapter 7, section 39M of chapter 30 or sections 44A to 44J, inclusive, of chapter 149 of the General Laws; and provided further, that each contract shall be awarded under chapter 30B of the General Laws, except for clause (3) of paragraph (b) of section 6, clause (3) of paragraph (e) of said section 6, paragraph (g) of said section 6 and sections 13 and 16. For the purposes of this act, the term sewer works system shall include the wastewater treatment facility, sewers, pump stations, collection system and all appurtenances relating thereto.
(b) The request for proposals for any contract 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 financing, operating and maintenance and life-cycle costs. If the city awards the contract to an offeror who did not submit the proposal with 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 sewer works system as constructed or improved. The contract that is negotiated with the selected offeror based on the request for proposals shall: obligate the selected offeror to meet the performance guarantees; set forth the minimum design requirements for any construction or improvements; and set forth the acceptance tests to be conducted upon the completion of any construction or improvements in order to demonstrate that the sewer works system, as improved, is 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 city of Fall River in accordance with the original contract terms and conditions or with contract terms and conditions which are more favorable to and acceptable to the city. A contract entered into under this act may provide that, subject to a majority vote of the city council and approval by the mayor, the city shall not be exempt from liability for payment of the costs to finance, permit, design and construct modifications or install new equipment and systems at the sewer works system 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 the costs shall be amortized over a period that is no longer than the useful life of the modifications, equipment and systems. The city's payment obligations for all operations and maintenance services shall be conditioned on the contractor's performance of the services in accordance with all contractual terms.
(b) A contract entered into under this act may provide for activities, as necessary, to carry out the purposes authorized in this act including, but not limited to, financing, 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 materials, supplies and services required for the sewer works system and the management, operation, maintenance and repair of the sewer works system.

SECTION 3. The chief procurement officer of the city of Fall River 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 for the contract, some of which may be mandatory or non-negotiable. The request for proposals may also request proposals or offer options for fulfillment of other contractual terms and 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 the price.

SECTION 4. The chief procurement officer of the city of Fall River 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 except terms deemed mandatory or non-negotiable with the offeror.
If, after negotiation with the offeror, the chief procurement officer determines that it is in the city's best interests, the 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. The chief procurement officer may negotiate all terms of the contract except terms deemed mandatory or non-negotiable with the offeror.
The 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 and the other evaluation criteria set forth in the request for proposals and the terms of the negotiated contract. Subject to the approval of the city, 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. Any contract awarded under this act shall be subject to the terms and conditions as the city shall determine to be in the best interests of the city and shall be subject to a majority vote of the city council and approval of the mayor. The contract shall provide that prior to the construction of modifications or installation of equipment and systems the city shall cause a qualified wastewater engineer to independently review and approve plans and specifications for the modifications, equipment and systems. The contract shall further provide that prior to the city's acceptance of any modifications, equipment or systems, including work undertaken under section 6, the city shall cause a qualified wastewater engineer to inspect the modifications, equipment and systems and certify that the construction or installation has been completed in accordance with the approved plans and specifications.

SECTION 6. (a) Any general or special law 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 sections 26 to 27H, inclusive, of chapter 149 of the General Laws, shall not apply to any selected offeror that 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 annually on the anniversary date of the contract, 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, and not specifically included in the initial contract for the operation and maintenance or design and construction of the sewer works system shall be procured on the basis of advertised sealed bids; provided, however, that bids shall not be required to be solicited if the contractor causes the completion of the construction, renovation, modernization, installation or replacement work without direct or indirect reimbursement from the city or other adjustment to the fees or costs paid by the city. 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 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 that the city shall cause a qualified wastewater engineer to independently assess the need for the 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 recommendation of the qualified wastewater engineer, the city may approve, modify or reject the contractor's proposed plans and specifications, including the contractor's determination of need for the capital improvement, renovation, modernization, installation or replacement work.
(b) Notwithstanding subsection (a), the city shall reserve the right to effectuate the construction of any capital improvement or any renovation, modernization, installation or replacement work estimated to cost more than $100,000, adjusted annually on the anniversary date of the contract, 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 for the operation and maintenance or design and construction of the sewer works system in conformity with section 39M of chapter 30 or sections 44A to 44J, inclusive, of chapter 149 of the General Laws.

SECTION 7. Notwithstanding any general or special law to the contrary, the department of environmental protection may issue project approval certificates for the design build contract with improvements to the sewer works system. The design and construction services included in the contract shall be eligible for assistance under the water pollution abatement trust, established in section 2 of chapter 29C of the General Laws, and any future revolving loan fund programs established by the commonwealth, as applicable.

SECTION 8. Prior to the execution of a contract under this act, the selected offeror shall furnish to the city of Fall River performance bonds, payment bonds and insurance in an amount satisfactory to the city.

SECTION 9. Nothing in this act or any action taken or contract or agreement entered into under this act shall change or alter any contract or agreement between the city of Fall River and any city, town or public entity which is in force and effect on the effective date of this act.

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

Approved, December 20, 2012.