58:27-23. Public notice, review of proposals, contract terms

5. a. A public entity shall publish notice of its intent to enter into a contract pursuant to P.L.1995, c.216 (C.58:27-19 et al.) in at least one newspaper of general circulation in the jurisdiction or service area that will receive wastewater treatment services under the terms of the contract and one newspaper of broad regional circulation, at least 60 days prior to conducting the public hearing required under section 6 of P.L.1995, c.216 (C.58:27-24). b. The public notice required under subsection a. of this section shall describe the type of services desired and provide the name, address and phone number of the person who can provide additional information and a proposal document to an interested party. The notice shall specify a deadline, which shall be not less than 30 days from the date of the publication of the notice for the submission of proposals by private firms or public authorities to the public entity. The public entity may at any time revise the proposal document and each private firm or public authority that received a proposal document shall be provided with the revised proposal document. c. The public entity shall conduct a review of the proposals submitted by private firms and public authorities to determine which proposals meet the minimum qualifications and standards. The review shall be conducted in a manner that avoids disclosure of the contents of a proposal to any private firm and public authority submitting a competing proposal. The public entity may conduct discussions with a private firm and public authority submitting a qualified proposal for the purpose of clarifying the information submitted in the proposal. The public entity may at any time revise its proposal document after the review of the submitted proposals if it notifies simultaneously, and in writing, each private firm and public authority that submitted a proposal of the revision and provides a uniform time within which a firm and an authority may submit a revised proposal for review. d. The public entity shall select one qualified proposal from among those submitted. The public entity shall negotiate a contract with the private firm or public authority that submitted the selected proposal. If the public entity is unable to negotiate a satisfactory contract with the selected private firm or public authority, it may select another qualified proposal from among those submitted and proceed to negotiate a contract with the private firm or public authority that submitted the proposal. The public entity shall set forth, in writing, the reasons for the selection of the qualified proposal submitted by the private firm or public authority with which the public entity has negotiated a proposed contract and shall make this document available to the public along with the proposed contract, upon request, and during the public hearing conducted pursuant to section 6 of P.L.1995, c.216 (C.58:27-24). e. A contract entered into pursuant to P.L.1995, c.216 (C.58:27-19 et al.) shall include provisions addressing the following: (1) The charges, rates, fees or formulas to be used to determine the charges, rates, or fees to be charged by the public entity for the wastewater treatment services to be provided; (2) The allocation of the risks of financing and constructing planned capital additions or upgrades to existing wastewater treatment systems; (3) The allocation of the risks of operating and maintaining the wastewater treatment system; (4) The allocation of the risks associated with circumstances or occurrences beyond the control of the parties to the contract; (5) The defaulting and termination of the contract; (6) The employment of current employees of the public entity whose positions or employment will be affected by the terms of the contract; (7) The requirements for the provision of a performance bond by the private firm or public authority, if so required by the public entity; and (8) The financial cost of compliance with all relevant permits. A contract may contain any other terms and conditions that have been negotiated by the public entity and the private firm or public authority. f. If a dispute over contract compliance, performance or termination cannot be resolved by the public entity and the private firm or public authority pursuant to the procedures set forth in the contract, either party to the contract may file with the Superior Court which has appropriate jurisdiction a request for an order either to terminate the contract based on the reasons stated in the request or for an order for other appropriate relief to the dispute. The court may take such action as it may deem necessary to facilitate the expeditious resolution of the dispute and an expeditious response to the request, including ordering the parties to undertake a dispute resolution or mediation process. The court shall use, as it deems necessary, the services of a financial expert in the area of wastewater treatment service contracts in its analysis of the contract and the issues before it. Within 90 days after the filing of a request, the court shall either grant the request or deny the request. If the request is granted, the court shall order such appropriate relief measures or remedies as it deems appropriate and necessary. g. A public entity that has negotiated a contract with a private firm or a public authority pursuant to P.L.1995, c.216 (C.58:27-19 et al.) shall obtain the written opinion of bond counsel as to the effect of the contract on the tax exempt status of existing and future financing instruments executed by the public entity given the terms of the contract and the federal laws or regulations concerning this matter. h. If a public entity entering into a contract pursuant to P.L.1995, c.216 (C.58:27-19 et al.) consists of multiple municipalities, or is an authority subject to the provisions of P.L.1983, c.313 (C.40A:5A-1 et seq.), a concession fee paid by a private firm or public authority as a result of the contract shall be paid directly to the municipality or municipalities that created or constitute that public entity. Any concession fee paid by a private firm or a public authority to a public entity shall be used for the purpose of reducing or off-setting property taxes, reducing wastewater treatment services rates, one-time nonrecurring expenses or capital asset expenditures; provided, however, nothing herein shall preclude the public entity from using all or part of the concession fees for the purpose of the public entity's qualification for relief from the repayment of federal grant awards associated with the wastewater treatment system as may be required by federal law or regulation. Any disagreement as to whether a payment constitutes a concession fee as that term is defined pursuant to section 3 of this act shall be resolved by the division. L.1995,c.216,s.5.