N.Y. General Municipal Law § 120-w: Contracts and agreements for solid waste management, collection and disposal

§ 120-w. Contracts and agreements for solid waste management,

collection and disposal. 1. Definitions. As used in this section:

(a) "Municipality" means a town, city, county, or village or any

designated public agency thereof, or a garbage or sanitary district

established under the Nassau county civil divisions act; or any two or

more of the foregoing which are acting jointly in connection with a

solid waste management facility, or a public authority.

(b) "Solid waste management-resource recovery facility" or "facility"

or "project" means any facility, plant, works, system, building,

structure, improvement machinery, equipment, fixture or other real or

personal property which is to be used, occupied or employed beyond the

initial solid waste collection process for the storage, processing, or

disposal of solid waste or the recovery by any means of any material or

energy product or resource therefrom including but not limited to

recycling centers, transfer stations, baling facilities, rail haul or

barge haul facilities, processing systems, resource recovery facilities

or other facilities for reducing solid waste volume, sanitary landfills,

plants and facilities for compacting, composting or pyrolization of

solid wastes, incinerators, and other solid waste disposal, reduction or

conversion facilities. For the purpose of this section, solid waste

management-resource recovery facilities include solid waste recovery and

management projects as defined in subdivision two of section 51-0903 of

the environmental conservation law.

(c) "Resource recovery" means the separation, extraction and recovery

of useable materials or energy from solid waste through source

separation, recycling centers or other programs, projects or facilities.

(d) "Person" means a municipality or other governmental body, public

corporation or authority, private corporation, partnership or

individual.

(e) "Source separation" means the segregation of recyclable materials

from the solid waste stream at the point of generation for separate

collection, sale or other disposition.

2. Notwithstanding the provisions of any other law, general, special

or local relating to the length, duration and terms of contracts which a

municipality may enter into, any municipality may enter into a contract

with any person, upon such terms and conditions as may be agreed upon,

for the design, construction, operation, financing, ownership or

maintenance of a solid waste management-resource recovery facility, for

the processing or disposal of solid waste or for a system of collection

and disposal of municipal solid waste through resource recovery which

may include source separation, for a period not to exceed twenty-five

years, and, except in a city having a population of one million or more,

for collection and disposal of municipal solid wastes by means other

than resource recovery for a period not to exceed five years as provided

for in this section.

3. The share of the cost to be paid by municipalities acting jointly

shall be determined in any manner which may be agreed upon, and such

share shall be included in the annual budget of the participating

municipality as an expense and levied against the taxable real property

in the municipality or municipalities.

4. Construction, financing and operation of solid waste

management-resource recovery facilities. (a) Notwithstanding the

provisions of any other law, general, special or local relating to the

length, duration and terms of contracts a municipality may enter into,

any county, city, town or village, or any combination thereof, is hereby

authorized and empowered from time to time to enter into contracts,

leases or rental agreements, with, or grant licenses, permits,

concessions or any other authorizations, to any person, upon such terms

and conditions for such consideration and for such term or duration, not

to exceed twenty-five years, as may be agreed upon by any county, city,

town or village or any combination thereof, and such person, whereby,

for any purpose or purposes hereinafter referred to, such person is

granted the right to construct, maintain, use, occupy or carry on

activities in the whole or any part of a solid waste management-resource

recovery facility on a site authorized by any county, city, town or

village or any combination thereof.

(b) Prior to or after the expiration or termination of the term or

duration of any contract, lease, rental agreement, license, permit,

concession, or other authorization, entered into or granted pursuant to

the provisions of this section, any county, city, town or village or any

combination thereof, in accordance with the requirements and conditions

of this section, may from time to time enter into amended, supplemental,

new, additional or further contracts, leases or rental agreements with,

and grant new, additional, supplemental, or further licenses, permits,

concessions, or other authorizations to the same or any other person for

any purpose or purposes referred to herein.

(c) The person, entering into any contract, lease, rental agreement,

license, permit, concession, or other authorization referred to herein,

with any county, city, town or village or any combination thereof, may

be granted the rights hereinbefore referred to for any purpose or

purposes as shall provide for the benefit of the people of any county,

city, town or village or any combination thereof, and the improvement of

their health and welfare, by the utilization of solid waste

management-resource recovery systems, technology, processes and

procedures, and for any purpose which aids in the financing of the

construction and operation of a solid waste management-resource recovery

facility for the benefit of any county, city, town or village or any

combination thereof.

(d) The products generated by any solid waste management-resource

recovery facility may be sold, utilized or otherwise disposed of,

pursuant to contract, lease, rental agreement, license, permit,

concession, or other authorization, between any municipality and any

person, upon such terms and conditions for such consideration, and for

such term or duration, not to exceed twenty-five years, as may be agreed

upon by any municipality and such person.

(e) It is the intent of the legislature that overall cost should in

all cases be a major criterion in the selection of contractors for award

of contracts pursuant to this section and that, wherever practical, such

contracts which include construction work should be procured through

competitive bidding procedures as prescribed by sections one hundred one

and one hundred three of this chapter. It is further the intent of the

legislature to acknowledge the highly complex and innovative nature of

resource recovery technology for processing mixed solid waste, the

relative newness of the variety of resource recovery systems now

available, the desirability of a single point of responsibility for the

development of facilities and the economic and technical utility of

contracts for resource recovery projects which include in their scope

various combinations of design, construction, operation, management

and/or maintenance responsibilities over prolonged periods of time and

that in some instances it may be beneficial to the municipality to award

a contract on the basis of factors other than cost alone, including but

not limited to facility design, system reliability, energy efficiency,

compatibility with source separation and other recycling systems and

environmental protection. Accordingly, and notwithstanding the

provisions of any general, special or local law or charter, a contract

entered into between a municipality and any person pursuant to this

section may be awarded pursuant to public bidding in compliance with

sections one hundred one and one hundred three of this chapter or

pursuant to the following provisions for the award of a contract based

on evaluation of proposals submitted in response to a request for

proposals prepared by or for the municipality:

(1) The municipality shall require that each proposal to be submitted

shall include:

(i) information relating to the experience of the proposer on the

basis of which said proposer purports to be qualified to carry out all

work required by a proposed contract; the ability of the proposer to

secure adequate financing; and proposals for project staffing,

implementation of work tasks, and the carrying out of all

responsibilities required by a proposed contract;

(ii) a proposal clearly identifying and specifying all elements of

cost which would become charges to the municipality, in whatever form,

in return for the fulfillment by the proposer of all tasks and

responsibilities established by the request for the proposal for the

full lifetime of a proposed contract, including, as appropriate, but not

limited to the cost of planning, design, construction, operation,

management and/or maintenance of any facility; and clearly identifying

and specifying all elements of revenue which would accrue to the

municipality from the sale of any material or energy produced or from

any other source; provided, that the municipality may prescribe the form

and content of such proposal and that, in any event, the proposer must

submit sufficiently detailed information to permit a fair and equitable

evaluation by the municipality of such proposal; and provided, further,

that the municipality may set maximum allowable cost limits in any form

in the request for proposals; and

(iii) such other information as the municipality may determine to have

a material bearing on its ability to evaluate any proposal in accordance

with subparagraph five of this paragraph;

(2) To provide for public information and review:

(i) prior to the issuance of a request for proposals pursuant to this

paragraph, the municipality shall publish notice of such issuance in the

official newspaper of the municipality, if any, in at least one

newspaper of general circulation, in the state register and in the

environmental notice bulletin. Concurrent with the publication of such

notice a draft request for proposals shall be filed with the clerk or

chief executive officer of the municipality;

(ii) after allowing a sixty day comment period and an additional ten

days to review such comments, the municipality may publish the final

request for proposals and concurrent with such publication shall publish

notice of such issuance in the manner specified in item (i) of this

subparagraph. Concurrent with the publication of the final request for

proposals a set of comments filed in relation to the draft request for

proposals and findings related to the substantive elements of such

comments shall be filed along with the request for proposals with the

clerk or chief executive officer of the municipality and in the

municipal public library or libraries in proximity to the proposed site

or sites;

(3) Proposals received in response to such request for proposals shall

be evaluated by the municipality as to net cost or, if a net revenue is

projected, net revenue, and, in a manner consistent with provisions set

forth in the request for proposals, may be evaluated on the basis of

additional factors, including but not limited to the technical

evaluation of facility design, system reliability, energy balance and

efficiency, environmental protection, overall employment and recovery of

materials. The evaluation of such proposals and the determination of

whether a proposer is "responsible" may include, but shall not be

limited to, consideration, in a manner consistent with provisions set

forth in the request for proposals, of the record of the proposer in

complying with existing labor standards and recognizing state and

federally approved apprentice training programs, and the willingness of

the proposer to provide for meaningful participation of minority group

persons and business enterprises in the conduct of the work;

(4) The municipality may make a contract award to any responsible

proposer selected pursuant to subparagraph three of this paragraph based

on a determination by the municipality that the selected proposal is

most responsive to the request for proposals and may negotiate with any

proposer; provided, however, that if an award is made to any proposer

whose total proposal does not provide either the lowest net cost or, if

a net revenue is projected, the greatest net revenue of any proposal

received, the municipality shall adopt a resolution after public hearing

which includes particularized findings relevant to factors evaluated

pursuant to subparagraph three indicating that the municipality's

requirements are met by such award and that such action is in the public

interest.

(f) Whenever a municipality enters into a contract pursuant to this

section for the construction of a solid waste management-resource

recovery project, the provisions of section two hundred twenty of the

labor law shall be applicable to such construction work.

5. a. In a city having a population of one million or more any

contract entered into pursuant to the provisions of this section shall

be limited to the within enumerated facilities appearing in the

following schedule:

(a) Arthur Kill located at Fresh Kill Landfill, Staten Island.

(b) West 215th. Street located at 215th. Street between Tenth Avenue

and the Harlem River, borough of Manhattan.

(c) Barretto Point located at Tiffany and Ryawa Streets, borough of

Bronx.

(d) Pilot Block located at 2nd. Avenue and 121st. Street, borough of

Manhattan.

(e) Westway-A located at 28th. Street and the Hudson river, borough of

Manhattan, Westway-B located at Canal Street and the Hudson river,

borough of Manhattan.

(f) Navy Yard located at the Brooklyn Navy Yard, borough of Brooklyn.

(g) Idlewild located at Idlewild, borough of Queens.

(h) South Shore located at Forbell Street and 157th. Avenue, borough

of Brooklyn.

(i) Edgemere located at Edgemere Landfill, borough of Queens.

(j) Integrated Utility located at Hellgate, Consolidated Edison plant,

borough of Bronx.

(k) Upgraded Betts Avenue incinerator located in the borough of

Brooklyn.

(l) Upgraded Greenpoint incinerator located in the borough of

Brooklyn.

(m) Upgraded Southwest Brooklyn incinerator located in the borough of

Brooklyn.

(n) Hamilton Avenue facility located in the borough of Brooklyn.

(o) Existing 135th. Street M.T.S. located in the borough of Manhattan.

(p) Existing 91st. Street M.T.S. located in the borough of Manhattan.

(q) North Shore located at thirty-first Avenue and Flushing Bay,

borough of Queens.

(r) Existing South Bronx located in the borough of the Bronx.

(s) Harlem River Yards located in the borough of the Bronx.

(t) Columbia Street Marine Terminal located in the borough of

Brooklyn.

b. The sustained daily tonnage throughput capacity of any solid waste

recovery and management facility constructed pursuant to this section in

such city shall not exceed three thousand tons per day.

c. Notwithstanding any other provision of law, no solid waste recovery

and management facility having a capacity to generate electricity or

steam and having a sustained daily tonnage throughput capacity of

greater than twenty-five tons per day, shall be constructed in the

county of Richmond except that this limitation shall not apply to a

single solid waste recovery and management facility having a sustained

daily tonnage throughput capacity of not more than three thousand tons

per day to be constructed at Arthur Kill, located at Fresh Kill

landfill.

d. This subdivision shall not apply to facilities to be used for the

source separation, collection, storage, processing or marketing of

recyclable or reusable components of solid waste as defined in paragraph

b of subdivision two of section one hundred twenty-aa of this article,

provided, however that in the borough of Staten Island any such facility

shall be located at Fresh Kill landfill.

6. An action, suit or proceeding contesting the validity of a contract

awarded pursuant to this section, or the validity of the procedures

relating to such award, must be commenced within sixty days after

publication of notice of such award as hereinafter prescribed, if the

following requirements are met:

(a) official action of the municipality in awarding a contract under

this section shall contain a statement that the validity of such

contract and the procedures relating to its award may be contested only

if:

(1) such action, suit or proceeding is commenced within sixty days

after the date of publication of such official action; and

(2) such award of procedure was not authorized pursuant to this

section; or

(3) any of the provisions of this section which should be complied

with at the date of the publication of such official action have not

been substantially complied with; or

(4) a conflict of interest can be shown in the manner in which the

contract was awarded; and

(b) notice of the official action of the municipality awarding a

contract under this section shall be published in full by the clerk or

chief executive officer of the municipality in substantially the

following form in the official newspaper of the municipality, if any, in

at least one newspaper of general circulation, in the state register and

in the environmental notice bulletin:

"On (date) the (name of municipality) awarded a contract to (name of

party) pursuant to section one hundred twenty-w of the general

municipal law for the (purpose of contract). The validity of this

contract or the procedures which led to its award may be hereafter

contested only by action, suit or proceeding commenced within sixty

days after the date of this notice and only upon the ground or grounds

that: (1) such award or procedure was not authorized pursuant to that

section, or (2) any of the provisions of that section which should be

complied with at the date of this publication have not been

substantially complied with, or (3) a conflict of interest can be

shown in the manner in which the contract was awarded; or by action,

suit or proceeding commenced on the grounds that such contract was

awarded in violation of the provisions of the Constitution.

_________________________________

Clerk or other official or person

designated by the municipality"

7. Every contract entered into between a municipality and a project

developer pursuant to the provisions of subparagraph four of paragraph

(e) of subdivision four of this section, for construction of a solid

waste management-resource recovery building by the project developer,

shall contain provisions that such building shall be constructed through

construction contracts awarded through public competitive bidding in

accordance with paragraphs (a) through (g) of this subdivision; that the

project developer shall furnish a bond guaranteeing prompt payment of

moneys that are due to all persons furnishing labor and materials

pursuant to the requirements of such construction contracts, and that a

copy of such payment bond shall be kept by the municipality and shall be

open to public inspection; provided, however, that the requirements of

this subdivision shall not apply when the cost of such construction is

less than five thousand dollars.

(a) The project developer shall advertise for bids for such

construction contracts in a daily newspaper having general circulation

in the county in which such public solid waste management-resource

recovery building is to be located. Such advertisement shall contain a

statement of the time when and place where all bids received pursuant to

such notice will be publicly opened and read. An employee of the

municipality shall be designated to open the bids at the time and place

specified in the notice. All bids received shall be publicly opened and

read at the time and place so specified. At least five days shall elapse

between the publication of such advertisement and date on which the bids

are opened.

(b) Except as otherwise provided in section two hundred twenty-two of

the labor law, when the entire cost of constructing such building shall

exceed three million dollars in the counties of the Bronx, Kings, New

York, Queens, and Richmond; one million five hundred thousand dollars in

the counties of Nassau, Suffolk and Westchester; and five hundred

thousand dollars in all other counties within the state, the project

developer shall prepare separate specifications for the following

subdivisions of such work, so as to permit separate and independent

bidding upon each subdivision:

(i) plumbing and gas fittings;

(ii) steam heating, hot water heating, ventilating and air

conditioning apparatus; and

(iii) electric wiring and standard illuminating fixtures.

(b-1) Each bidder on a public work contract, where the preparation of

separate specifications is not required, shall submit with its bid a

separate sealed list that names each subcontractor that the bidder will

use to perform work on the contract, and the agreed-upon amount to be

paid to each, for: (i) plumbing and gas fitting, (ii) steam heating, hot

water heating, ventilating and air conditioning apparatus and (iii)

electric wiring and standard illuminating fixtures. After the low bid is

announced, the sealed list of subcontractors submitted with such low bid

shall be opened and the names of such subcontractors shall be announced,

and thereafter any change of subcontractor or agreed-upon amount to be

paid to each shall require the approval of the public owner, upon a

showing presented to the public owner of legitimate construction need

for such change, which shall be open to public inspection. Legitimate

construction need shall include, but not be limited to, a change in

project specifications, a change in construction material costs, a

change to subcontractor status as determined pursuant to paragraph (e)

of subdivision two of section two hundred twenty-two of the labor law,

or the subcontractor has become otherwise unwilling, unable or

unavailable to perform the subcontract. The sealed lists of

subcontractors submitted by all other bidders shall be returned to them

unopened after the contract award.

(c) After public competitive bidding the project developer shall award

one or more separate contracts for each of the above subdivisions of

such work, whenever separate specifications are required pursuant to

paragraph (b) of this subdivision, and one or more contracts for the

remainder of such work. The project developer may award such contracts

at different times. Contracts awarded pursuant to this subdivision shall

be awarded by the project developer to the lowest responsible and

responsive bidder and shall be contracts of the project developer and

not of the municipality which shall have no obligation or liabilities,

whatsoever, thereunder. The project developer shall have the

responsibility for the supervision, coordination, and termination of

such contracts, unless otherwise specified in contractual terms between

the project developer and the municipality.

(d) In determining whether a prospective contractor is responsible and

responsive, the project developer may require that prospective

contractors:

(i) have adequate financial resources or the ability to obtain such

resources;

(ii) be able to comply with the required or proposed delivery or

performance schedule;

(iii) have a satisfactory record of performance;

(iv) have the necessary organization, experience, operational

controls, and technical skills, or the ability to obtain them;

(v) have the necessary production, construction and technical

equipment and facilities, or the ability to obtain them;

(vi) be eligible to receive an award under applicable laws and

regulations and be otherwise qualified.

(e) The project developer may reject any bid of a bidder which the

project developer determines to be nonresponsible or nonresponsive to

the advertisement for bids.

(f) The project developer may, in its discretion, reject all bids, and

may revise bid specifications and may readvertise for bids as provided

herein.

(g) Only as used in this subdivision:

(i) "project developer" means any private corporation, partnership, or

individual or combination thereof which has submitted a proposal in

response to a request for proposals issued pursuant to subparagraph two

of paragraph (e) of subdivision four of this section;

(ii) "construction" shall include reconstruction, rehabilitation or

improvement;

(iii) "solid waste management-resource recovery building" means a

building of a solid waste management-resource recovery facility. Such

building shall not include the system to be used for the purposes of

receiving, processing, handling or storing solid waste, the products and

by-products derived therefrom, or materials used in such processing or

handling and any equipment or property involving proprietary or trade

secrets.