NY Gen Mun L § 120-W (2021)
2021 New York Laws GMU - General Municipal Article 6 - Public Health and Safety 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.