§ 120-W — Contracts and agreements for solid waste management, collection and disposal

§ 120-w. Contracts and agreements for solid waste management,\ncollection and disposal. 1. Definitions. As used in this section:\n (a) "Municipality" means a town, city, county, or village or any\ndesignated public agency thereof, or a garbage or sanitary district\nestablished under the Nassau county civil divisions act; or any two or\nmore of the foregoing which are acting jointly in connection with a\nsolid waste management facility, or a public authority.\n (b) "Solid waste management-resource recovery facility" or "facility"\nor "project" means any facility, plant, works, system, building,\nstructure, improvement machinery, equipment, fixture or other real or\npersonal property which is to be used, occupied or employed beyond the\ninitial solid waste collection process for the storage, processing, or\ndisposal of solid waste or the recovery by any means of any material or\nenergy product or resource therefrom including but not limited to\nrecycling centers, transfer stations, baling facilities, rail haul or\nbarge haul facilities, processing systems, resource recovery facilities\nor other facilities for reducing solid waste volume, sanitary landfills,\nplants and facilities for compacting, composting or pyrolization of\nsolid wastes, incinerators, and other solid waste disposal, reduction or\nconversion facilities. For the purpose of this section, solid waste\nmanagement-resource recovery facilities include solid waste recovery and\nmanagement projects as defined in subdivision two of section 51-0903 of\nthe environmental conservation law.\n (c) "Resource recovery" means the separation, extraction and recovery\nof useable materials or energy from solid waste through source\nseparation, recycling centers or other programs, projects or facilities.\n (d) "Person" means a municipality or other governmental body, public\ncorporation or authority, private corporation, partnership or\nindividual.\n (e) "Source separation" means the segregation of recyclable materials\nfrom the solid waste stream at the point of generation for separate\ncollection, sale or other disposition.\n 2. Notwithstanding the provisions of any other law, general, special\nor local relating to the length, duration and terms of contracts which a\nmunicipality may enter into, any municipality may enter into a contract\nwith any person, upon such terms and conditions as may be agreed upon,\nfor the design, construction, operation, financing, ownership or\nmaintenance of a solid waste management-resource recovery facility, for\nthe processing or disposal of solid waste or for a system of collection\nand disposal of municipal solid waste through resource recovery which\nmay include source separation, for a period not to exceed twenty-five\nyears, and, except in a city having a population of one million or more,\nfor collection and disposal of municipal solid wastes by means other\nthan resource recovery for a period not to exceed five years as provided\nfor in this section.\n 3. The share of the cost to be paid by municipalities acting jointly\nshall be determined in any manner which may be agreed upon, and such\nshare shall be included in the annual budget of the participating\nmunicipality as an expense and levied against the taxable real property\nin the municipality or municipalities.\n 4. Construction, financing and operation of solid waste\nmanagement-resource recovery facilities. (a) Notwithstanding the\nprovisions of any other law, general, special or local relating to the\nlength, duration and terms of contracts a municipality may enter into,\nany county, city, town or village, or any combination thereof, is hereby\nauthorized and empowered from time to time to enter into contracts,\nleases or rental agreements, with, or grant licenses, permits,\nconcessions or any other authorizations, to any person, upon such terms\nand conditions for such consideration and for such term or duration, not\nto exceed twenty-five years, as may be agreed upon by any county, city,\ntown or village or any combination thereof, and such person, whereby,\nfor any purpose or purposes hereinafter referred to, such person is\ngranted the right to construct, maintain, use, occupy or carry on\nactivities in the whole or any part of a solid waste management-resource\nrecovery facility on a site authorized by any county, city, town or\nvillage or any combination thereof.\n (b) Prior to or after the expiration or termination of the term or\nduration of any contract, lease, rental agreement, license, permit,\nconcession, or other authorization, entered into or granted pursuant to\nthe provisions of this section, any county, city, town or village or any\ncombination thereof, in accordance with the requirements and conditions\nof this section, may from time to time enter into amended, supplemental,\nnew, additional or further contracts, leases or rental agreements with,\nand grant new, additional, supplemental, or further licenses, permits,\nconcessions, or other authorizations to the same or any other person for\nany purpose or purposes referred to herein.\n (c) The person, entering into any contract, lease, rental agreement,\nlicense, permit, concession, or other authorization referred to herein,\nwith any county, city, town or village or any combination thereof, may\nbe granted the rights hereinbefore referred to for any purpose or\npurposes as shall provide for the benefit of the people of any county,\ncity, town or village or any combination thereof, and the improvement of\ntheir health and welfare, by the utilization of solid waste\nmanagement-resource recovery systems, technology, processes and\nprocedures, and for any purpose which aids in the financing of the\nconstruction and operation of a solid waste management-resource recovery\nfacility for the benefit of any county, city, town or village or any\ncombination thereof.\n (d) The products generated by any solid waste management-resource\nrecovery facility may be sold, utilized or otherwise disposed of,\npursuant to contract, lease, rental agreement, license, permit,\nconcession, or other authorization, between any municipality and any\nperson, upon such terms and conditions for such consideration, and for\nsuch term or duration, not to exceed twenty-five years, as may be agreed\nupon by any municipality and such person.\n (e) It is the intent of the legislature that overall cost should in\nall cases be a major criterion in the selection of contractors for award\nof contracts pursuant to this section and that, wherever practical, such\ncontracts which include construction work should be procured through\ncompetitive bidding procedures as prescribed by sections one hundred one\nand one hundred three of this chapter. It is further the intent of the\nlegislature to acknowledge the highly complex and innovative nature of\nresource recovery technology for processing mixed solid waste, the\nrelative newness of the variety of resource recovery systems now\navailable, the desirability of a single point of responsibility for the\ndevelopment of facilities and the economic and technical utility of\ncontracts for resource recovery projects which include in their scope\nvarious combinations of design, construction, operation, management\nand/or maintenance responsibilities over prolonged periods of time and\nthat in some instances it may be beneficial to the municipality to award\na contract on the basis of factors other than cost alone, including but\nnot limited to facility design, system reliability, energy efficiency,\ncompatibility with source separation and other recycling systems and\nenvironmental protection. Accordingly, and notwithstanding the\nprovisions of any general, special or local law or charter, a contract\nentered into between a municipality and any person pursuant to this\nsection may be awarded pursuant to public bidding in compliance with\nsections one hundred one and one hundred three of this chapter or\npursuant to the following provisions for the award of a contract based\non evaluation of proposals submitted in response to a request for\nproposals prepared by or for the municipality:\n (1) The municipality shall require that each proposal to be submitted\nshall include:\n (i) information relating to the experience of the proposer on the\nbasis of which said proposer purports to be qualified to carry out all\nwork required by a proposed contract; the ability of the proposer to\nsecure adequate financing; and proposals for project staffing,\nimplementation of work tasks, and the carrying out of all\nresponsibilities required by a proposed contract;\n (ii) a proposal clearly identifying and specifying all elements of\ncost which would become charges to the municipality, in whatever form,\nin return for the fulfillment by the proposer of all tasks and\nresponsibilities established by the request for the proposal for the\nfull lifetime of a proposed contract, including, as appropriate, but not\nlimited to the cost of planning, design, construction, operation,\nmanagement and/or maintenance of any facility; and clearly identifying\nand specifying all elements of revenue which would accrue to the\nmunicipality from the sale of any material or energy produced or from\nany other source; provided, that the municipality may prescribe the form\nand content of such proposal and that, in any event, the proposer must\nsubmit sufficiently detailed information to permit a fair and equitable\nevaluation by the municipality of such proposal; and provided, further,\nthat the municipality may set maximum allowable cost limits in any form\nin the request for proposals; and\n (iii) such other information as the municipality may determine to have\na material bearing on its ability to evaluate any proposal in accordance\nwith subparagraph five of this paragraph;\n (2) To provide for public information and review:\n (i) prior to the issuance of a request for proposals pursuant to this\nparagraph, the municipality shall publish notice of such issuance in the\nofficial newspaper of the municipality, if any, in at least one\nnewspaper of general circulation, in the state register and in the\nenvironmental notice bulletin. Concurrent with the publication of such\nnotice a draft request for proposals shall be filed with the clerk or\nchief executive officer of the municipality;\n (ii) after allowing a sixty day comment period and an additional ten\ndays to review such comments, the municipality may publish the final\nrequest for proposals and concurrent with such publication shall publish\nnotice of such issuance in the manner specified in item (i) of this\nsubparagraph. Concurrent with the publication of the final request for\nproposals a set of comments filed in relation to the draft request for\nproposals and findings related to the substantive elements of such\ncomments shall be filed along with the request for proposals with the\nclerk or chief executive officer of the municipality and in the\nmunicipal public library or libraries in proximity to the proposed site\nor sites;\n (3) Proposals received in response to such request for proposals shall\nbe evaluated by the municipality as to net cost or, if a net revenue is\nprojected, net revenue, and, in a manner consistent with provisions set\nforth in the request for proposals, may be evaluated on the basis of\nadditional factors, including but not limited to the technical\nevaluation of facility design, system reliability, energy balance and\nefficiency, environmental protection, overall employment and recovery of\nmaterials. The evaluation of such proposals and the determination of\nwhether a proposer is "responsible" may include, but shall not be\nlimited to, consideration, in a manner consistent with provisions set\nforth in the request for proposals, of the record of the proposer in\ncomplying with existing labor standards and recognizing state and\nfederally approved apprentice training programs, and the willingness of\nthe proposer to provide for meaningful participation of minority group\npersons and business enterprises in the conduct of the work;\n (4) The municipality may make a contract award to any responsible\nproposer selected pursuant to subparagraph three of this paragraph based\non a determination by the municipality that the selected proposal is\nmost responsive to the request for proposals and may negotiate with any\nproposer; provided, however, that if an award is made to any proposer\nwhose total proposal does not provide either the lowest net cost or, if\na net revenue is projected, the greatest net revenue of any proposal\nreceived, the municipality shall adopt a resolution after public hearing\nwhich includes particularized findings relevant to factors evaluated\npursuant to subparagraph three indicating that the municipality's\nrequirements are met by such award and that such action is in the public\ninterest.\n (f) Whenever a municipality enters into a contract pursuant to this\nsection for the construction of a solid waste management-resource\nrecovery project, the provisions of section two hundred twenty of the\nlabor law shall be applicable to such construction work.\n 5. a. In a city having a population of one million or more any\ncontract entered into pursuant to the provisions of this section shall\nbe limited to the within enumerated facilities appearing in the\nfollowing schedule:\n (a) Arthur Kill located at Fresh Kill Landfill, Staten Island.\n (b) West 215th. Street located at 215th. Street between Tenth Avenue\nand the Harlem River, borough of Manhattan.\n (c) Barretto Point located at Tiffany and Ryawa Streets, borough of\nBronx.\n (d) Pilot Block located at 2nd. Avenue and 121st. Street, borough of\nManhattan.\n (e) Westway-A located at 28th. Street and the Hudson river, borough of\nManhattan, Westway-B located at Canal Street and the Hudson river,\nborough of Manhattan.\n (f) Navy Yard located at the Brooklyn Navy Yard, borough of Brooklyn.\n (g) Idlewild located at Idlewild, borough of Queens.\n (h) South Shore located at Forbell Street and 157th. Avenue, borough\nof Brooklyn.\n (i) Edgemere located at Edgemere Landfill, borough of Queens.\n (j) Integrated Utility located at Hellgate, Consolidated Edison plant,\nborough of Bronx.\n (k) Upgraded Betts Avenue incinerator located in the borough of\nBrooklyn.\n (l) Upgraded Greenpoint incinerator located in the borough of\nBrooklyn.\n (m) Upgraded Southwest Brooklyn incinerator located in the borough of\nBrooklyn.\n (n) Hamilton Avenue facility located in the borough of Brooklyn.\n (o) Existing 135th. Street M.T.S. located in the borough of Manhattan.\n (p) Existing 91st. Street M.T.S. located in the borough of Manhattan.\n (q) North Shore located at thirty-first Avenue and Flushing Bay,\nborough of Queens.\n (r) Existing South Bronx located in the borough of the Bronx.\n (s) Harlem River Yards located in the borough of the Bronx.\n (t) Columbia Street Marine Terminal located in the borough of\nBrooklyn.\n b. The sustained daily tonnage throughput capacity of any solid waste\nrecovery and management facility constructed pursuant to this section in\nsuch city shall not exceed three thousand tons per day.\n c. Notwithstanding any other provision of law, no solid waste recovery\nand management facility having a capacity to generate electricity or\nsteam and having a sustained daily tonnage throughput capacity of\ngreater than twenty-five tons per day, shall be constructed in the\ncounty of Richmond except that this limitation shall not apply to a\nsingle solid waste recovery and management facility having a sustained\ndaily tonnage throughput capacity of not more than three thousand tons\nper day to be constructed at Arthur Kill, located at Fresh Kill\nlandfill.\n d. This subdivision shall not apply to facilities to be used for the\nsource separation, collection, storage, processing or marketing of\nrecyclable or reusable components of solid waste as defined in paragraph\nb of subdivision two of section one hundred twenty-aa of this article,\nprovided, however that in the borough of Staten Island any such facility\nshall be located at Fresh Kill landfill.\n 6. An action, suit or proceeding contesting the validity of a contract\nawarded pursuant to this section, or the validity of the procedures\nrelating to such award, must be commenced within sixty days after\npublication of notice of such award as hereinafter prescribed, if the\nfollowing requirements are met:\n (a) official action of the municipality in awarding a contract under\nthis section shall contain a statement that the validity of such\ncontract and the procedures relating to its award may be contested only\nif:\n (1) such action, suit or proceeding is commenced within sixty days\nafter the date of publication of such official action; and\n (2) such award of procedure was not authorized pursuant to this\nsection; or\n (3) any of the provisions of this section which should be complied\nwith at the date of the publication of such official action have not\nbeen substantially complied with; or\n (4) a conflict of interest can be shown in the manner in which the\ncontract was awarded; and\n (b) notice of the official action of the municipality awarding a\ncontract under this section shall be published in full by the clerk or\nchief executive officer of the municipality in substantially the\nfollowing form in the official newspaper of the municipality, if any, in\nat least one newspaper of general circulation, in the state register and\nin the environmental notice bulletin:\n "On (date) the (name of municipality) awarded a contract to (name of\n party) pursuant to section one hundred twenty-w of the general\n municipal law for the (purpose of contract). The validity of this\n contract or the procedures which led to its award may be hereafter\n contested only by action, suit or proceeding commenced within sixty\n days after the date of this notice and only upon the ground or grounds\n that: (1) such award or procedure was not authorized pursuant to that\n section, or (2) any of the provisions of that section which should be\n complied with at the date of this publication have not been\n substantially complied with, or (3) a conflict of interest can be\n shown in the manner in which the contract was awarded; or by action,\n suit or proceeding commenced on the grounds that such contract was\n awarded in violation of the provisions of the Constitution.\n _________________________________\n Clerk or other official or person\n designated by the municipality"\n 7. Every contract entered into between a municipality and a project\ndeveloper pursuant to the provisions of subparagraph four of paragraph\n(e) of subdivision four of this section, for construction of a solid\nwaste management-resource recovery building by the project developer,\nshall contain provisions that such building shall be constructed through\nconstruction contracts awarded through public competitive bidding in\naccordance with paragraphs (a) through (g) of this subdivision; that the\nproject developer shall furnish a bond guaranteeing prompt payment of\nmoneys that are due to all persons furnishing labor and materials\npursuant to the requirements of such construction contracts, and that a\ncopy of such payment bond shall be kept by the municipality and shall be\nopen to public inspection; provided, however, that the requirements of\nthis subdivision shall not apply when the cost of such construction is\nless than five thousand dollars.\n (a) The project developer shall advertise for bids for such\nconstruction contracts in a daily newspaper having general circulation\nin the county in which such public solid waste management-resource\nrecovery building is to be located. Such advertisement shall contain a\nstatement of the time when and place where all bids received pursuant to\nsuch notice will be publicly opened and read. An employee of the\nmunicipality shall be designated to open the bids at the time and place\nspecified in the notice. All bids received shall be publicly opened and\nread at the time and place so specified. At least five days shall elapse\nbetween the publication of such advertisement and date on which the bids\nare opened.\n (b) Except as otherwise provided in section two hundred twenty-two of\nthe labor law, when the entire cost of constructing such building shall\nexceed three million dollars in the counties of the Bronx, Kings, New\nYork, Queens, and Richmond; one million five hundred thousand dollars in\nthe counties of Nassau, Suffolk and Westchester; and five hundred\nthousand dollars in all other counties within the state, the project\ndeveloper shall prepare separate specifications for the following\nsubdivisions of such work, so as to permit separate and independent\nbidding upon each subdivision:\n (i) plumbing and gas fittings;\n (ii) steam heating, hot water heating, ventilating and air\nconditioning apparatus; and\n (iii) electric wiring and standard illuminating fixtures.\n (b-1) Each bidder on a public work contract, where the preparation of\nseparate specifications is not required, shall submit with its bid a\nseparate sealed list that names each subcontractor that the bidder will\nuse to perform work on the contract, and the agreed-upon amount to be\npaid to each, for: (i) plumbing and gas fitting, (ii) steam heating, hot\nwater heating, ventilating and air conditioning apparatus and (iii)\nelectric wiring and standard illuminating fixtures. After the low bid is\nannounced, the sealed list of subcontractors submitted with such low bid\nshall be opened and the names of such subcontractors shall be announced,\nand thereafter any change of subcontractor or agreed-upon amount to be\npaid to each shall require the approval of the public owner, upon a\nshowing presented to the public owner of legitimate construction need\nfor such change, which shall be open to public inspection. Legitimate\nconstruction need shall include, but not be limited to, a change in\nproject specifications, a change in construction material costs, a\nchange to subcontractor status as determined pursuant to paragraph (e)\nof subdivision two of section two hundred twenty-two of the labor law,\nor the subcontractor has become otherwise unwilling, unable or\nunavailable to perform the subcontract. The sealed lists of\nsubcontractors submitted by all other bidders shall be returned to them\nunopened after the contract award.\n (c) After public competitive bidding the project developer shall award\none or more separate contracts for each of the above subdivisions of\nsuch work, whenever separate specifications are required pursuant to\nparagraph (b) of this subdivision, and one or more contracts for the\nremainder of such work. The project developer may award such contracts\nat different times. Contracts awarded pursuant to this subdivision shall\nbe awarded by the project developer to the lowest responsible and\nresponsive bidder and shall be contracts of the project developer and\nnot of the municipality which shall have no obligation or liabilities,\nwhatsoever, thereunder. The project developer shall have the\nresponsibility for the supervision, coordination, and termination of\nsuch contracts, unless otherwise specified in contractual terms between\nthe project developer and the municipality.\n (d) In determining whether a prospective contractor is responsible and\nresponsive, the project developer may require that prospective\ncontractors:\n (i) have adequate financial resources or the ability to obtain such\nresources;\n (ii) be able to comply with the required or proposed delivery or\nperformance schedule;\n (iii) have a satisfactory record of performance;\n (iv) have the necessary organization, experience, operational\ncontrols, and technical skills, or the ability to obtain them;\n (v) have the necessary production, construction and technical\nequipment and facilities, or the ability to obtain them;\n (vi) be eligible to receive an award under applicable laws and\nregulations and be otherwise qualified.\n (e) The project developer may reject any bid of a bidder which the\nproject developer determines to be nonresponsible or nonresponsive to\nthe advertisement for bids.\n (f) The project developer may, in its discretion, reject all bids, and\nmay revise bid specifications and may readvertise for bids as provided\nherein.\n (g) Only as used in this subdivision:\n (i) "project developer" means any private corporation, partnership, or\nindividual or combination thereof which has submitted a proposal in\nresponse to a request for proposals issued pursuant to subparagraph two\nof paragraph (e) of subdivision four of this section;\n (ii) "construction" shall include reconstruction, rehabilitation or\nimprovement;\n (iii) "solid waste management-resource recovery building" means a\nbuilding of a solid waste management-resource recovery facility. Such\nbuilding shall not include the system to be used for the purposes of\nreceiving, processing, handling or storing solid waste, the products and\nby-products derived therefrom, or materials used in such processing or\nhandling and any equipment or property involving proprietary or trade\nsecrets.\n