N.J. Stat. tit. 58, ch. 27

in effect

N.J. Stat. § 58:27-1 Short title

This act shall be known and may be cited as the "New Jersey Wastewater Treatment Privatization Act." L. 1985, c. 72, s. 1, eff. March 11, 1985.

N.J. Stat. § 58:27-2 Findings, declarations

The Legislature finds and declares that protecting the ground and surface water of the State from pollution is vital to the health and general welfare of the citizens of New Jersey; that the construction, rehabilitation, operation, and maintenance of modern and efficient sewer systems and wastewater treatment plants are essential to protecting and improving the State's water quality; that in addition to protecting and improving water quality, adequate wastewater treatment systems are essential to economic growth and development; that many of the wastewater treatment systems in New Jersey must be replaced or upgraded if an inexorable decline in water quality is to be avoided during the coming decades; that the United States Congress, in recognition of the crucial role wastewater treatment systems and plants play in maintaining and improving water quality, and with an understanding that the cost of financing and constructing these systems must be borne by local governments and authorities with limited sources of revenues, established in the "Clean Water Act" a program to provide local governments with grants for constructing these systems; that during the last several years the amount of federal grant money available to states and local governments for assistance in constructing and improving wastewater treatment systems has sharply diminished; that the current level of federal grant funding is inadequate to meet the cost of upgrading the State's wastewater treatment capacity to comply with State water quality standards; that given this inadequate present level of federal grant funding, alternative methods of financing the construction, operation, and improvement of wastewater treatment systems must be developed and encouraged; that one alternative method of financing necessary wastewater treatment systems available to local government units consists of contracting with private-sector firms for the financing, construction and operation of these systems; and that for some local government units, contracting for the provision of wastewater treatment services, if done in such a way as to protect the interests of consumers and to conform with environmental standards, will constitute an appropriate method of securing these needed wastewater treatment systems. The Legislature therefore determines that it is in the public interest to establish a comprehensive procedure designed to authorize local government units to contract with private firms for the provision of wastewater treatment services. L. 1985, c. 72, s. 2, eff. March 11, 1985.

N.J. Stat. § 58:27-3 Definitions

As used in this act: a. "Contracting unit" means a county, municipality, municipal or county sewerage or utility authority, municipal sewerage district, joint meeting or any other political subdivision of the State authorized pursuant to law to construct wastewater treatment systems or provide wastewater treatment services. b. "Department" means the Department of Environmental Protection. c. "Division" means the Division of Local Government Services in the Department of Community Affairs. d. "Vendor" means any person financially, technically, and administratively capable of financing, planning, designing, constructing, operating, or maintaining, or any combination thereof, a wastewater treatment system, or of providing wastewater treatment services to a local government unit under the terms of a contract awarded pursuant to the provisions of this act. e. "Wastewater" means residential, commercial, industrial, or agricultural liquid waste, sewerage, storm water runoff, or any combination thereof, or other liquid residue discharged or collected into a sewer system or storm water system, or any combination thereof. f. "Wastewater treatment system" means any equipment, plants, structures, machinery, apparatus, or land, or any combination thereof, acquired, used, constructed or operated for the storage, collection, reduction, recycling, reclamation, disposal, separation, or other treatment of wastewater or sewage sludge, or for the final disposal of residues resulting from the treatment of wastewater, including, but not limited to, pumping and ventilating stations, facilities, plants and works, connections, outfall sewers, interceptors, trunk lines, and other personal property and appurtenances necessary for their use or operation. g. "Wastewater treatment services" means services provided by a wastewater treatment system. L. 1985, c. 72, s. 3, eff. March 11, 1985.

N.J. Stat. § 58:27-4 Contracts authorized

The provisions of any other law, or rules and regulations adopted pursuant thereto to the contrary notwithstanding, any contracting unit may enter into a contract with a vendor for the financing, designing, construction, operation, or maintenance, or any combination thereof, of a wastewater treatment system, or for wastewater treatment services, pursuant to the provisions of this act. L. 1985, c. 72, s. 4, eff. March 11, 1985.

N.J. Stat. § 58:27-5 Notice of intent.

5. A contracting unit which intends to enter into a contract with a private vendor for the provision of wastewater treatment services pursuant to the provisions of this act shall notify, at least 60 days prior to issuing a request for qualifications from interested vendors pursuant to section 6 of this act, the division, the department and the Department of the Public Advocate of its intention, and shall publish notice of its intention in at least one newspaper of general circulation in the jurisdiction which would be served under the terms of the proposed contract. L.1985,c.72,s.5; amended 1994, c.58, s.61; 2005, c.155, s.101.

N.J. Stat. § 58:27-6 Request for qualifications

Upon submitting the notices of intent pursuant to section 5 of this act, a contracting unit may issue a request for qualifications of vendors interested in entering into a contract with the contracting unit for the provision of wastewater treatment services. The request for qualifications shall include a general description of the wastewater treatment services required by the contracting unit, the minimum acceptable qualifications to be possessed by a vendor proposing to enter into a contract for the provision of these services, and the date by which vendors must submit their qualifications. In addition to all other factors bearing on qualifications, the contracting unit shall consider the reputation and experience of the vendor, and may consider information which might result in debarment or suspension of a vendor from State contracting and may disqualify a vendor if the vendor has been debarred or suspended by a State agency. The request for qualifications shall be published in at least one appropriate professional or trade journal, and in at least one newspaper of general circulation in the jurisdiction which would be served under the terms of the proposed contract. L. 1985, c. 72, s. 6, eff. March 11, 1985.

N.J. Stat. § 58:27-7 Qualified vendors

After reviewing the qualifications submitted by vendors pursuant to section 6 of this act, a contracting unit shall establish a list of all vendors responding to the request for qualifications, and shall designate the vendor or vendors which the contracting unit has determined to be qualified to provide the wastewater treatment services described in the request for qualifications. This list shall include a statement setting forth the criteria applied by the contracting unit in selecting qualified vendors, and shall be published in the same publications in which the requests for qualifications were published pursuant to section 6 of this act. L. 1985, c. 72, s. 7, eff. March 11, 1985.

N.J. Stat. § 58:27-8 Request for proposals

Upon selecting the qualified vendors pursuant to section 7 of this act, a contracting unit shall transmit a request for proposals to the qualified vendors, which shall include a detailed description of the wastewater treatment system and services required, the format and procedure to be followed in submitting proposals, the specific information which the vendor must provide in the proposal, a statement setting forth the relative importance of factors, including cost, which the contracting unit will consider in evaluating a proposal submitted by a qualified vendor, and any other information which the contracting unit deems appropriate. The request for proposals shall include the date and time of day by which, and the place at which, the proposals shall be submitted to the contracting unit. The contracting unit may extend the deadline for submission of proposals, but this extension shall apply to all qualified vendors, who shall be provided with simultaneous written notification of this extension. L. 1985, c. 72, s. 8, eff. March 11, 1985.

N.J. Stat. § 58:27-9 Review of proposals; revision

A contracting unit shall review proposals submitted by vendors pursuant to section 8 of this act in such a manner as to avoid disclosure of the contents of any proposal to vendors submitting competing proposals. If provided for in the request for proposals, the contracting unit may conduct discussions with qualified vendors who have submitted proposals for the purpose of clarifying any information submitted in the proposal, or assuring that the vendor fully understood and responded to the requirements set forth in the request for proposals. If, as a result of these discussions, the contracting unit decides to revise the request for proposals, it shall immediately notify in writing each qualified vendor which has submitted a proposal of any such revision or revisions to the request for proposals. In the event of any revision in the request for proposals, a qualified vendor shall be permitted to submit revisions to its proposal. L. 1985, c. 72, s. 9, eff. March 11, 1985.

N.J. Stat. § 58:27-10 Vendor designation

After reviewing the proposals submitted by qualified vendors pursuant to section 9 of this act, a contracting unit shall designate in writing the selected vendor or vendors. This designation shall include a list of the qualified vendors submitting proposals, the basis on which the selected vendor or vendors was chosen, and a finding that the proposal submitted by the selected vendor or vendors constitutes the proposal most advantageous to the jurisdiction to be served under the terms of the proposal, based upon the evaluation factors included in the request for proposals. This designation shall be published in at least one newspaper in general circulation in the jurisdiction to be served under the terms of the proposal. L. 1985, c. 72, s. 10, eff. March 11, 1985.

N.J. Stat. § 58:27-11 Negotiation of proposed contract.

11. Upon designating the selected vendor or vendors pursuant to section 10 of this act, a contracting unit shall negotiate with the selected vendor or vendors a proposed contract, which shall include the accepted proposal and the provisions required pursuant to section 15 of this act. Upon negotiating a proposed contract, the contracting unit shall make the proposed contract available to the public at its main offices, and shall transmit a copy of the proposed contract to the division, the department and the Division of Rate Counsel in, but not of, the Department of the Treasury. L.1985, c.72, s.11; amended 1994, c.58, s.62; 2005, c.155, s.102; 2010, c.34, s.48.

N.J. Stat. § 58:27-12 Public hearing.

12. a. A contracting unit shall conduct a public hearing or hearings on the charges, rates, or fees, or the formula for determining these charges, rates, or fees, and the other provisions contained in a proposed contract negotiated pursuant to section 11 of this act. The contracting unit shall provide at least 90 days' public notice of this public hearing to the Division of Rate Counsel in, but not of, the Department of the Treasury, prospective consumers and other interested parties. This notice shall be published in at least one newspaper of general circulation in the jurisdiction to be served under the terms of the proposed contract. Within 45 days after giving notice of the public hearing, the contracting unit shall hold a meeting with prospective consumers and other interested parties to explain the terms and conditions of the proposed contract, and to receive written questions which will be part of the record of the public hearing. At the public hearing, the selected vendor or vendors shall be present, and the contracting unit shall have the burden to answer the questions received at the meeting, and to show that the proposed contract complies with the provisions of section 15 of this act, and that it constitutes the best means of securing the required wastewater treatment services among available alternatives. The contracting unit shall provide that a verbatim record be kept of the public hearing, and that a written transcript of this record be printed and made available to the public within 45 days of the close of the public hearing. Written testimony received no more than 15 days after the public hearing shall be included in the written transcript. After the public hearing the contracting unit and the vendor may agree to make changes to the proposed contract, and the contracting unit shall transmit the proposed contract, a copy of the printed transcript of the public hearing, and a statement summarizing the major issues raised at the public hearing and the response of the contracting unit to these issues, to the division, the department, and the Division of Rate Counsel, and shall make copies available to any other person upon request. b. If the Division of Rate Counsel represents the public interest at a public hearing or hearings conducted pursuant to this section, the Division of Rate Counsel shall be entitled to assess the vendor for costs incurred in this representation in the manner provided in section 20 of P.L.1974, c.27 (C.52:27E-19). The basis of the assessment shall be the prospective first year's revenue realized by the vendor from the provision of the wastewater treatment services pursuant to the terms of the proposed contract. c. If a contract awarded pursuant to the provisions of this act is renegotiated, the contracting unit shall conduct a public hearing on the renegotiated contract pursuant to the provisions of this section. L.1985, c.72, s.12; amended 1994, c.58, s.63; 2005, c.155, s.103; 2010, c.34, s.49.

N.J. Stat. § 58:27-13 Approval, conditional approval

a. The department, within 60 days of receipt of a proposed contract submitted to it by a contracting unit pursuant to section 12 of this act, shall approve or conditionally approve the proposed contract. If the department approves the proposed contract, it shall accompany its approval with a written finding that the proposed contract will meet appropriate environmental and water quality standards, and that it is consistent with the areawide and facility water quality management plans adopted for the jurisdiction to be served under the terms of the proposed contract pursuant to the "Water Quality Planning Act," P.L. 1977, c. 75 (C. 58:11A-1 et seq.). If the department conditionally approves a proposed contract, it shall state in writing the revisions which shall be made to the proposed contract prior to receiving approval, and shall inform the contracting unit if the revisions to be made to the proposed contract warrant a public hearing. b. The division, within 60 days of receipt of a proposed contract transmitted to it by a contracting unit pursuant to section 12 of this act, shall approve or conditionally approve the proposed contract. If the division approves the proposed contract, it shall accompany its approval with a written finding that the proposed contract complies with the provisions of section 15 of this act, and that the proposed contract is compatible with the fiscal and financial capabilities of the contracting unit. If the division conditionally approves the proposed contract, it shall state in writing the revisions which shall be made to the proposed contract prior to receiving approval, and shall inform the contracting unit if the revisions to be made to the proposed contract warrant a public hearing. L. 1985, c. 72, s. 13, eff. March 11, 1985.

N.J. Stat. § 58:27-14 Contract award

A contracting unit may award a contract negotiated pursuant to the provisions of this act to a vendor only after the department and the division have approved the proposed contract pursuant to section 13 of this act. L. 1985, c. 72, s. 14, eff. March 11, 1985.

N.J. Stat. § 58:27-15 Mandatory provisions

Any contract for the provision of wastewater treatment services negotiated and awarded to a vendor by a contracting unit pursuant to this act, or the "Local Public Contracts Law," P.L. 1971, c. 198 (C. 40A:11-1 et seq.), shall include, but shall not be limited to, provisions concerning: a. The allocation of the risks of financing and constructing a wastewater treatment system, including delays in completion of the construction of the system, construction and financing cost overruns and increased costs resulting from change orders, construction changes required by revisions in applicable laws, rules, or regulations, failure of the system to achieve its required operating performance or efficiency, changes in tax benefits, and the need for equity contributions in addition to those provided for in the contract; b. The allocation of the risks of operating and maintaining a wastewater treatment system, including excessive or nonscheduled periods of inoperation or technical failure, excess labor and materials costs due to underestimation, changes in operating procedures required by revisions in applicable laws, rules, or regulations, changes in the quantity or composition of wastewater delivered for treatment, excessive operation or maintenance costs due to poor management, and increased costs of disposal of the residue resulting from wastewater treatment; c. The allocation of the risks associated with circumstances or occurrences beyond the control of the parties to the contract; d. The defaulting and termination of the contract; e. The periodic preparation by the vendor of an operating performance report and an audited balance statement of the wastewater treatment system, which shall be submitted to the contracting unit, the department and the division; f. The intervals at which the contract shall be renegotiated; g. The employment of current employees of the contracting unit whose positions or employment will be affected by the terms of the contract; and h. The formulas to be used to determine the charges, rates, or fees to be charged for the wastewater treatment services, and the methodology or methodologies used to develop these formulas. L. 1985, c. 72, s. 15, eff. March 11, 1985.

N.J. Stat. § 58:27-16 Lease of site

A contracting unit which has awarded a contract for the provision of wastewater treatment services to a vendor pursuant to this act or the "Local Public Contracts Law," P.L. 1971, c. 198 (C. 40A:11-1 et seq.) may lease to the vendor, for a fair market price, the property to be used as a site for a wastewater treatment system, the provisions of any other laws or rules and regulations adopted pursuant thereto to the contrary notwithstanding. L. 1985, c. 72, s. 16, eff. March 11, 1985.

N.J. Stat. § 58:27-17 Prior negotiations

Any contracting unit which, prior to the effective date of this act, has issued a request for qualifications and a request for proposals from vendors for the provision of wastewater treatment services, or has initiated negotiations with a vendor for the provision of wastewater treatment services, may petition the department for certification as being substantially and materially in compliance with the provisions of this act, and, upon receiving this certification, may award a contract for the provision of wastewater treatment services pursuant to the provisions of this act. L. 1985, c. 72, s. 17, eff. March 11, 1985.

N.J. Stat. § 58:27-18 Rules, regulations

The department and the division may adopt, pursuant to the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.), rules and regulations necessary to carry out their respective responsibilities under this act. L. 1985, c. 72, s. 18, eff. March 11, 1985.

N.J. Stat. § 58:27-19 Short title

1. Sections 1 through 9 of P.L.1995, c.216 (C.58:27-19 through 58:27-27) shall be known and may be cited as the "New Jersey Wastewater Treatment Public-Private Contracting Act." L.1995,c.216,s.1.

N.J. Stat. § 58:27-20 Findings, declarations

2. The Legislature finds and declares that protecting the ground and surface water of the State from pollution is vital to the health and general welfare of the citizens of New Jersey; that the construction, rehabilitation, operation, and maintenance of modern and efficient sewer systems and wastewater treatment plants are essential to protecting and improving the State's water quality; that in addition to protecting and improving the State's water quality, adequate wastewater treatment systems are essential to economic growth and development; that many of the wastewater treatment systems in New Jersey must be replaced or upgraded if an inexorable decline in water quality is to be avoided during the coming decades; that the United States Congress in recognition of the crucial role wastewater treatment systems and plants play in maintaining and improving water quality, and with an understanding that the cost of financing and constructing these systems must be borne by local governments and authorities with limited sources of revenues, established a program to provide local governments with grants for constructing these systems; that during the last several years the amount of federal grant money available to states and local governments for assistance in constructing and improving wastewater treatment systems has sharply diminished; that the current level of federal grant funding is inadequate to meet the cost of upgrading the State's wastewater treatment capacity to comply with State water quality standards; that given this inadequate present level of federal grant funding, alternative methods of financing the construction, operation, and improvement of wastewater treatment systems must be developed and encouraged; that one alternative method of financing necessary wastewater treatment systems available to local governments consists of contracting with private sector firms for the financing, construction and operation of these systems; and that for some local government units, contracting for the provision of wastewater treatment services, if done in such a way as to protect the interests of consumers and to conform with environmental standards, will constitute an appropriate method of securing these needed wastewater treatment systems. The Legislature further finds that it is in the public interest and the policy of the State to foster and promote by all reasonable means the long-term operation and maintenance of modern, efficient wastewater treatment systems designed to protect and improve the State's water quality thereby ensuring the health and general welfare of all inhabitants of the State; that while the "New Jersey Wastewater Treatment Privatization Act," P.L.1985, c.72 (C.58:27-1 et seq.), enabled local government units to enter into long term contracts with private-sector firms for the provision of wastewater treatment services, the time consuming procedures and the regulatory framework required therein has dissuaded private firms and local government units from entering into long-term contractual relationships as envisioned by this act; that there is a need for an alternative statutory process which enables local government units to enter with private firms or public authorities into long-term contracts that protect the rights and interests of residents of the local government unit, but allow the private firms or public authorities to utilize their expertise, experience and resources to enable the local government unit to comply with existing and more stringent future requirements of the "Federal Water Pollution Control Act," 33 U.S.C. s.1251 et seq., the State "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.) and the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et seq.). The Legislature therefore determines that it is in the public interest to establish a comprehensive procedure designed to authorize local government units to enter into contracts with private firms or public authorities for the financing, designing, construction, improvement, operation, maintenance, or administration, or any combination thereof, of wastewater treatment systems or for the provision of wastewater treatment services. L.1995,c.216,s.2.

N.J. Stat. § 58:27-21 Definitions

3. As used in sections 1 through 9 of P.L.1995, c.216 (C.58:27-19 through 58:27-27): "Concession fee" means a payment from a private firm or a public authority to a public entity, regardless of when it is received, that is exclusive of or exceeds any contractually specified reimbursement of direct costs incurred by the public entity; "Contract" means a long-term written agreement wherein a private firm or a public authority agrees to provide wastewater treatment services for a public entity and wherein the private firm or public authority agrees to provide, during the term of the contract, capital expenditures on behalf of the public entity's wastewater treatment system, which expenditures are set forth in the contract; "Department" means the New Jersey Department of Environmental Protection; "Division" means the Local Finance Board within the Division of Local Government Services in the Department of Community Affairs; "Governing body" means the board of chosen freeholders in the case of the county; the board of chosen freeholders and the county executive, the county supervisor or the county manager, as appropriate, in the case of a county organized pursuant to the provisions of the "Optional County Charter Law," P.L.1972, c.154 (C.40:41A-1 et seq.); the commission, council, board or body, by whatever name it may be known, having charge of the finances of the municipality, in the case of a municipality; and the decision-making body of an authority, joint meeting or commission; "Private firm" means any privately or publicly held company qualified to do business in the State of New Jersey that is financially, technically, and administratively capable of providing wastewater treatment services to a public entity under the terms of a contract entered into pursuant to P.L.1995, c.216 (C.58:27-19 et al.); "Proposal document" means the document prepared by or on behalf of a public entity describing the wastewater treatment services that the public entity is considering having provided by a private firm or a public authority pursuant to a contract. The proposal document shall include specific minimum qualifications that a private firm or a public authority shall meet, as well as the criteria that will be used by a public entity to evaluate a proposal submitted by a private firm or a public authority; "Public authority" means a municipal or county authority, commission, municipal or county utility authority, sewerage authority, or joint meeting, which is authorized by law to construct, rehabilitate, operate or maintain a wastewater treatment system or arrange for the provision of wastewater treatment service; "Public entity" means a county, a municipality, a municipal or county authority or any commission or other political subdivision of the State, or any two or more counties, municipalities, municipal or county utilities authorities, sewerage authorities, joint meetings, or any commission or other political subdivisions of the State, acting jointly, that are authorized by law to construct, rehabilitate, operate or maintain wastewater treatment systems or arrange for the provision of wastewater treatment services; "Wastewater" means residential, commercial, industrial, or agricultural liquid waste, sewage, septage, stormwater runoff, or any combination thereof, or other liquid residue discharged or collected into a sewer system or stormwater runoff system, or directly into surface or ground waters, or any combination thereof; "Wastewater treatment services" means the financing, designing, construction, improvement, operation, maintenance, administration, or any combination thereof, of a wastewater treatment system, which services are provided pursuant to P.L.1995, c.216 (C.58:27-19 et al.); "Wastewater treatment system" means any equipment, plants, structures, machinery, apparatus, or land, or any combination thereof, acquired, used, constructed or operated by, or on behalf of, a public entity for the storage, collection, reduction, recycling, processing, reclamation, disposal, separation, or other treatment of wastewater or sewage sludge, or for the collection or treatment, or both, of stormwater runoff and wastewater, or for the final disposal of residues resulting from the treatment of wastewater, including, but not limited to, pumping and ventilating stations, treatment plants and works, connections, outfall sewers, interceptors, trunk lines, stormwater runoff collection systems, and other personal property and appurtenances necessary for their use or operation. L.1995,c.216,s.3.

N.J. Stat. § 58:27-22 Supersedure

4. Notwithstanding the provisions of any other law, rule or regulation to the contrary, a public entity may enter into a contract with a private firm or a public authority pursuant to P.L.1995, c.216 (C.58:27-19 et al.) for the provision of wastewater treatment services. L.1995,c.216,s.4.

N.J. Stat. § 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.

N.J. Stat. § 58:27-24 Public hearing, proceedings

6. a. A public entity that intends to enter into a contract with a private firm or public authority for the provision of wastewater treatment services pursuant to P.L.1995, c.216 (C.58:27-19 et al.) shall conduct a public hearing on the proposed contract negotiated pursuant to section 5 of P.L.1995, c.216 (C.58:27-23). A public entity shall also conduct a public hearing pursuant to this section on revisions to a contract required by subsection b. of section 7 of P.L.1995, c.216 (C.58:27-25) or on substantial amendments to a contract as required by subsection f. of section 7 of P.L.1995, c.216 (C.58:27-25). b. The public entity shall provide, at least 14 days prior to the public hearing, (1) notice in writing to the department and the division of its intent to enter into a contract with a private firm or public authority for the provision of wastewater treatment services, and (2) notice of the public hearing by publication in at least one newspaper of general circulation in the jurisdiction or service area of the public entity to be served under the terms of the proposed contract. The publication shall include notice of the date, time and place of the public hearing, notice of the place at which copies of the proposed contract will be available for public inspection, and the times during which such inspection will be permitted. The notice shall specifically state whether any concession fee will be paid by a private firm or public authority to the public entity as a result of the contract for wastewater treatment services, the monetary amount of the fee and the potential impact of the fee on the charges, rates or fees which will be paid for wastewater treatment services by users in the jurisdiction or service area that will receive the wastewater treatment services pursuant to the terms of the contract. c. At the public hearing, the public entity shall explain the terms and conditions of the proposed contract and shall answer questions raised by prospective consumers and other interested parties. The public entity shall explain during the hearing the charges, rates or fees that will or may be charged by the public entity for wastewater treatment services as a result of the proposed contract. In addition, the entity shall explain any concession fee to be paid by a private firm or public authority to the public entity as a result of the contract for wastewater treatment services, the monetary amount of the fee and the potential impact of the fee or benefit on the charges, rates or fees which will be paid for wastewater treatment services by users in the jurisdiction or service area that will receive the wastewater treatment services pursuant to the terms of the contract. d. The public entity shall produce a verbatim record of the public hearing. The record of the public hearing shall be kept open for a period of seven days following the conclusion of the hearing, during which time interested parties may submit written statements to be included in the hearing report. The public entity shall prepare a written hearing report, which shall include a copy of the proposed contract, a copy of the statement setting forth the public entity's reasons for the selection of the proposal submitted by the private firm or public authority with which the entity has negotiated a contract, the verbatim record of the public hearing, written statements submitted by interested parties, a copy of the bond counsel's written opinion required pursuant to subsection g. of section 5 of P.L.1995, c.216 (C.58:27-23) and a statement prepared by the public entity summarizing the major issues raised at the public hearing and the public entity's specific responses to those issues. The public entity shall make copies of the hearing report available to interested parties, upon request, at a cost not to exceed the actual cost of printing or copying. e. The governing body of a public entity that has negotiated the proposed contract shall adopt an ordinance or a resolution, as appropriate, or parallel ordinances or resolutions, as the case may be, if there is more than one governing body involved, approving the proposed contract. The ordinance or resolution may be introduced at the first meeting of the governing body of the public entity held after the public hearing on the proposed contract, and shall acknowledge that the agreement requires approval pursuant to the provisions of section 7 of P.L.1995, c.216 (C.58:27-25). f. Within 30 days after the close of a public hearing on a proposed contract held pursuant to subsection a. of this section and upon at least 10 days prior written notice, the public entity shall submit an application for approval to the division and shall submit the hearing report to the department for review pursuant to the provisions of section 7 of P.L.1995, c.216 (C.58:27-25). The division shall specify the form of the application to be submitted. L.1995,c.216,s.6.

N.J. Stat. § 58:27-25 Approval, conditional approval of application; review of contract

7. a. Within 60 days of receipt of the application, the division shall approve, or conditionally approve, an application submitted by a public entity pursuant to subsection f. of section 6 of P.L.1995, c.216 (C.58:27-24). Within 60 days of receipt of the hearing report, the department shall provide any comments on the hearing report or on the technical capabilities of the private firm or public authority that it deems appropriate to the division and the public entity. If the division fails to approve or conditionally approves the application within 60 days after receipt, the application shall be deemed approved, unless the public entity has agreed to an extension of the period. b. If the division conditionally approves the application, the division shall state in writing the revision to the proposed contract that is necessary in order for it to be approved. If the division determines that the required revision is substantial, the public entity shall hold a public hearing on the revision and adhere to the provisions of section 6 of P.L.1995, c.216 (C.58:27-24) in so doing. A substantial revision shall be a change that results in an increase in the charges, rates or fees of the private firm or public authority or that materially changes other terms and conditions of the contract. The proposed revision to the contract shall be submitted to the division and the department 15 days prior to the date of the public hearing. If the division determines that the required revision in the conditional approval is not substantial, the public entity shall submit the proposed revision to the contract to the division for approval and to the department for review. The revision shall be approved if found to be consistent with the conditions set forth in the conditional approval, or disapproved with a written explanation as to why the revision is not consistent, within 15 days after the next public meeting of the division. c. In its review of a contract, the division shall apply the following criteria in determining whether to approve the contract: (1) The terms of the proposed contract do not materially impair the ability of the public entity to punctually pay principal and interest due on its outstanding indebtedness and to supply other essential public improvements and services; (2) A concession fee paid by a private firm or a public authority as a result of the contract is paid directly to the municipality or municipalities that created or constitute the public entity, and any concession fee paid by a private firm or a public authority to a public entity is used for the purpose of reducing or off-setting property taxes, reducing wastewater treatment services rates, one-time nonrecurring expenses or capital asset expenditures; and (3) The contract contains the provisions required by subsection e. of section 5 of P.L.1995, c.216 (C.58:27-23). The division shall also review and specifically approve any contract provision pursuant to which a public entity will or may execute a financing instrument for the purposes set forth in the contract. In addition, the division shall review any contract between a public entity and public authority in which a concession fee is paid by the public authority to determine if the payment of the concession fee is in the best interest of the parties to the contract. d. The division may provide the public entity with any non-binding comments or advice during or after the review of the application as the division deems appropriate. e. The division shall assess and the applicant shall pay a fee equal to the cost incurred by the division for an analysis of an application by an independent person who has expertise in the area of wastewater treatment services if during the review of an application the division determines that such an analysis is required. f. If the public entity and private firm or public authority would like to amend a contract after approval of an application by the division, the public entity shall submit proposed amendments to the division for approval and to the department for review. At the next public meeting of the division after receipt of proposed amendments, the division shall determine whether the proposed amendments are substantial. If the amendments are substantial in nature as determined by the division, the public entity shall conduct a hearing pursuant to section 6 of P.L.1995, c.216 (C.58:27-24). Within 60 days of the receipt of proposed amendments that are not determined to be substantial, or within 60 days of the receipt of an application for approval of proposed amendments that are determined to be substantial, the division shall approve or conditionally approve the amendments in accordance with the applicable procedures established for approval of an original contract pursuant to this section. L.1995,c.216,s.7.

N.J. Stat. § 58:27-26 Bonds, financing

8. In order to pay its part of the cost of the wastewater treatment system, a public entity may issue bonds in accordance with the "Local Bond Law," N.J.S.40A:2-1 et seq. If a public entity enters into a financing instrument the proceeds of which are used by the private firm or public authority for a capital expenditure for the benefit of a wastewater treatment system, the expenditure of the funds provided by the public entity shall be in compliance with applicable public contracting statutes. L.1995,c.216,s.8.

N.J. Stat. § 58:27-27 Procurement of wastewater treatment services prior to enactment

9. A public entity may enter into a contract with a private firm or public authority for the provision of wastewater treatment services, the procurement for which contract commenced prior to the effective date of P.L.1995, c.216 (C.58:27-19 et al.), if the procurement was initiated in anticipation of the enactment of the act and the procurement otherwise complies with the provisions of the act. L.1995,c.216,s.9.

Source: Open US Law by Vaquill AI (CC BY 4.0)URL: https://www.njleg.state.nj.us/legislative-activity/statutesFetched: 10/17/2026