Bill Text: NJ A5902 | 2020-2021 | Regular Session | Introduced
Bill Title: Requires use of design-bid-build or design-build delivery system for certain local government construction projects.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2021-06-16 - Reported out of Assembly Committee, 2nd Reading [A5902 Detail]
Download: New_Jersey-2020-A5902-Introduced.html
Sponsored by:
Assemblyman CRAIG J. COUGHLIN
District 19 (Middlesex)
SYNOPSIS
Requires use of design-bid-build or design-build delivery system for certain local government construction projects.
CURRENT VERSION OF TEXT
As introduced.
An Act requiring certain delivery systems for certain local government construction projects, amending various parts of the statutory law, and supplementing P.L.1960, c.183 (C.40:37A-44 et seq.) and P.L.1992, c.79 (C.40A:12A-1 et al.).
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) a. For the purpose of any construction project, an authority, including any governmental unit that aids the authority by directly entering into contracts for a construction project with any person, shall use either a design-bid-build or a design-build delivery system. If an authority or governmental unit selects a design-bid-build delivery system, the authority or governmental unit shall solicit proposals and award design-bid-build contracts in accordance with the requirements of P.L.1971, c.198 (C.40A:11-1 et seq.), and the authority or governmental unit shall act as a "contracting unit" under that law. If an authority or governmental unit selects a design-build delivery system, the authority or governmental unit shall solicit proposals and award design-build contract in accordance with the requirements of P.L.2021, c.71 (C.52:35B-1 et seq.), and the authority shall act as a "contracting unit" under that law.
b. As used in this section:
"Construct" and "construction" shall connote and include acts of clearance, demolition, construction, development or redevelopment, reconstruction, replacement, extension, improvement, and betterment.
"Construction project" means the construction of any public facility, improvement, or project under P.L.1960, c.183 (C.40:37A-44 et seq.), including an development or redevelopment project or plan undertaken pursuant to section 34 of P.L.1979, c.275 (C.40:37A-55.1) or P.L.1992, c.879 (C.40A:12A-1 et al.)
"Delivery system" means the procedure used to develop and construct a construction project.
"Design-bid-build" means the delivery system used in a construction project in which a licensed and prequalified design professional develops the project design in its entirety; and the authority or governmental unit then solicits bids and awards the contract to the lowest responsible bidder that demonstrates the ability to complete the project specified in the design.
"Design-build" means the delivery system in which a design-builder provides labor, materials, and other construction services for a construction project under a contract with an authority or governmental unit.
"Design-builder" means the entity, whether natural person, partnership, joint stock company, corporation, trust, professional corporation, business association, or other legal business entity or successor, that proposes to design and construct any construction project who is registered pursuant to the provisions of P.L.1999, c.238 (C.34:11-56.48 et seq.), and classified by the New Jersey Division of Property Management and Construction or the New Jersey Department of Transportation, where applicable, to perform work on a design-build project.
"Design professional" means the entity, whether natural person, partnership, joint stock company, corporation, trust, professional corporation, business association, or other legal business entity or successor that provides licensed and prequalified architectural, engineering, or surveying services in accordance with R.S.45:3-1 et seq., and P.L.1938, c.342 (C.45:8-27 et seq.), and that shall be responsible for planning, designing, and observing the construction of the construction project.
2. Section 12 of P.L.1960, c.183, s.12 (C.40:37A-55) is amended to read as follows:
12. Every authority shall be a public body politic and corporate constituting a political subdivision of the State established as an instrumentality exercising public and essential governmental functions to provide for the public convenience, benefit and welfare and shall have perpetual succession and, for the effectuation of its purposes, have the following additional powers:
(a) To adopt and have a common seal and to alter the same at pleasure;
(b) To sue and be sued;
(c) To acquire, hold, use and dispose of its facility charges and other revenues and other moneys;
(d) To acquire, rent, hold, use and dispose of other personal property for the purposes of the authority;
(e) Subject to the provisions of section 26 of this act, to acquire by purchase, gift, condemnation or otherwise, or lease as lessee, real property and easements or interests therein necessary or useful and convenient for the purposes of the authority, whether subject to mortgages, deeds of trust or other liens or otherwise, and to hold and to use the same, and to dispose of property so acquired no longer necessary for the purposes of the authority; provided that the authority may dispose of such property at any time to any governmental unit or person if the authority shall receive a leasehold interest in the property for such term as the authority deems appropriate to fulfill its purposes;
(f) Subject to the provisions of section 13 of this act, to lease to any governmental unit or person, all or any part of any public facility for such consideration and for such period or periods of time and upon such other terms and conditions as it may fix and agree upon;
(g) To enter into agreements to lease, as lessee, public facilities for such term and under such conditions as the authority may deem necessary and desirable to fulfill its purposes, and to agree, pursuant thereto, to be unconditionally obligated to make payments for the term of the lease, without set-off or counterclaim, whether or not the public facility is completed, operating or operable, and notwithstanding the destruction of, damage to, or suspension, interruption, interference, reduction or curtailment of the availability or output of the public facility to which the agreement applies;
(h) To extend credit or make loans to any governmental unit or person for the planning, design, acquisition, construction, equipping and furnishing of a public facility, upon the terms and conditions that the loans be secured by loan and security agreements, mortgages, leases and other instruments, the payments on which shall be sufficient to pay the principal of and interest on any bonds issued for the purpose by the authority, and upon such other terms and conditions as the authority shall deem reasonable;
(i) Subject to the provisions of section 13 of this act, to make agreements of any kind with any governmental unit or person for the use or operation of all or any part of any public facility for such consideration and for such period or periods of time and upon such other terms and conditions as it may fix and agree upon;
(j) (1) To borrow money and issue negotiable bonds or notes or other obligations and provide for and secure the payment of any bonds and the rights of the holders thereof, and to purchase, hold and dispose of any bonds;
(2) To issue bonds, notes or other obligations to provide funding to a municipality that finances the purchase and installation of renewable energy systems and energy efficiency improvements by property owners as provided in section 2 of P.L.2011, c.187 (C.40:56-13.1);
(k) To apply for and to accept gifts or grants of real or personal property, money, material, labor or supplies for the purposes of the authority from any governmental unit or person, and to make and perform agreements and contracts and to do any and all things necessary or useful and convenient in connection with the procuring, acceptance or disposition of such gifts or grants;
(l) To determine the location, type and character of any public facility and all other matters in connection with all or any part of any public facility which it is authorized to own, construct, establish, effectuate or control;
(m) To make and enforce bylaws or rules and regulations for the management and regulation of its business and affairs and for the use, maintenance and operation of any public facility, and to amend the same;
(n) To do and perform any acts and things authorized by this act under, through or by means of its own officers, agents and employees, or by contract with any governmental unit or person;
(o) To acquire, purchase, construct, lease, operate, maintain and undertake any project and to fix and collect facility charges for the use thereof;
(p) To mortgage, pledge or assign or otherwise encumber all or any portion of its revenues and other income, real and personal property, projects and facilities for the purpose of securing its bonds, notes and other obligations or otherwise in furtherance of the purpose of this act;
(q) To extend credit or make loans to redevelopers for the planning, designing, acquiring, constructing, reconstructing, improving, equipping and furnishing any redevelopment project or redevelopment work;
(r) To conduct examinations and investigations, hear testimony and take proof, under oath at public or private hearings of any material matter, require the attendance of witnesses and the production of books and papers and issue commissions for the examination of witnesses who are out of the State, unable to attend, or excused from attendance;
(s) To authorize a committee designated by it consisting of one or more members, or counsel, or any officer or employee to conduct any such investigation or examination, in which case such committee, counsel, officer or employee shall have power to administer oaths, take affidavits and issue subpenas or commissions;
(t) To enter into any and all agreements or contracts, execute any and all instruments, and do and perform any and all acts or things necessary, convenient or desirable for the purposes of the authority or to carry out any power expressly given in this act subject to the "Local Public Contracts Law," P.L.1971, c.198 (C.40A:11-1 et seq.);
(u) To pool loans for any local governmental units within the county or any beneficiary county that are refunding bonds and do and perform any and all acts or things necessary, convenient or desirable for the purpose of the authority to achieve more favorable interest rates and terms for those local governmental units; and
(v) To act as and exercise the powers of a land bank entity pursuant to P.L.2019, c.159 (C.40A:12A-74 et al.) for any municipality situated within the county pursuant to a land banking agreement approved by an ordinance adopted by the municipal governing body.
The enumerated powers in subsections (f), (h), (o), (q), and (t) of this section are subject to the additional requirements that, to the extent those powers are implemented in connection with any public improvement, the authority shall require any person with whom the authority enters into an agreement, contract, or lease, to furnish a payment and performance bond issued in accordance with N.J.S.2A:44-147, and that any and all moneys loaned or otherwise provided by the authority shall constitute trust funds pursuant to N.J.S.2A:44-148.
(cf: P.L.2019, c.159, s.17)
3. Section 39 of P.L.1960, c.183 (C.40:37A-82) is amended to read as follows:
39. All property of an authority shall be exempt from levy and sale by virtue of an execution and no execution or other judicial process shall issue against the same nor shall any judgment against an authority be a charge or lien upon its property; provided, that nothing herein contained shall apply to or limit the rights of the holder of any bonds to pursue any remedy for the enforcement of any pledge, mortgage or lien given by an authority on its facility revenues or other moneys, or on its real or personal property; and provided that nothing herein shall apply to or limit the rights of the holder of s lien, pursuant to the "municipal mechanics' lien law," N.J.S.2A:44-125 et seq., to pursue any remedy for the enforcement of the lien upon the moneys due or to grow due under any contract or lease involving a public improvement made between any person and the authority, and which moneys are in the control of the authority, even if not directly held by the authority.
(cf: P.L.1977, c. 291, s. 4)
4. Section 47 of P.L.1960, c.183 (C.40:37A-90) is amended to read as follows:
47. This act shall be construed liberally to effectuate the legislative intent and as complete and independent authority for the performance of each and every act and thing herein authorized, and an authority shall not constitute or be deemed to be a county or municipality or agency or component of a municipality for the purposes of any other law; provided, however, that
a. an authority or governmental unit shall be deemed a "contracting unit" under the "Local Public Contracts Law," P.L.1971, c.198 (C.40A:11-1 et seq.) or the "Design Build Construction Services Procurement Act," P.L.2021, c.71 (C.52:35B-1 et seq.) when soliciting proposals and awarding contracts for construction, and
b. that no authority, other than an authority created in or performing services for a county of the second class having a population in excess of 265,000, but less than 350,000 inhabitants, in a county of the third class having a population not in excess of 70,000 inhabitants, or in a county of the fifth class having a population in excess of 150,000, but less than 300,000 inhabitants, shall exercise the powers of a common carrier in any such county, and, except as hereinabove in this section set forth, nothing contained in this act shall in any way affect or limit the jurisdiction, rights, powers or duties of any State regulatory agencies.
(cf: P.L.1994, c.76, s.11)
5. Section 22 of P.L.1979, c.275 (C.40:37A-127) is amended to read as follows:
22. All property of the authority, except as otherwise provided herein, shall be exempt from levy and sale by virtue of an execution and no execution or other judicial process shall issue against the same nor shall any judgment against the authority be a charge or lien upon its property; provided, that nothing herein shall apply to or limit the rights of the holder of any bonds, bond anticipation notes or other notes or obligations to pursue any remedy for the enforcement of any pledge or lien given by the authority on its revenues or other moneys; and provided that nothing herein shall apply to or limit the rights of the holder of a lien, pursuant to the "municipal mechanics' lien law", N.J.S.2A:44-125 et seq., to pursue any remedy for the enforcement of the lien upon the moneys due or to grow due under any contract or lease involving a public improvement made between any person and the authority, and which moneys are in the control of the authority, even if not directly held by the authority; and provided, further, that nothing herein shall limit the authority's ability to enter into partnerships, limited partnerships, joint ventures or other associations as a general partner, limited partner or participant therein.
(cf: P.L.1982, c.113, s.17)
6. (New section) a. For the purpose of selecting a redeveloper or a person to perform the construction of any public redevelopment project under P.L.1992, c.79 (C.40A:12A-1 et seq.), the municipality or redevelopment entity shall use either a design-bid-build or a design-build delivery system. If the municipality or redevelopment entity selects a design-bid-build delivery system, the municipality or redevelopment entity unit shall solicit proposals and award design-bid-build contracts in accordance with the requirements of P.L.1971, c.198 (C.40A:11-1 et seq.), and the municipality or redevelopment entity shall act as a "contracting unit" under that law. If the municipality or redevelopment entity selects a design-build delivery system, the municipality or redevelopment entity shall solicit proposals and award design-build contract in accordance with the requirements of P.L.2021, c.71 (C.52:35B-1 et seq.), and the municipality or redevelopment entity shall act as a "contracting unit" under that law.
b. As used in this section:
"Construct" and "construction" shall mean and include acts of clearance, demolition, construction, development or redevelopment, reconstruction, replacement, extension, improvement, and betterment.
"Delivery system" means the procedure used to develop and construct a public redevelopment project.
"Design-bid-build" means the delivery system used in a public redevelopment project in which a licensed and prequalified design professional develops the project design in its entirety; and the municipality or redevelopment entity then solicits bids and awards the contract to the lowest responsible bidder that demonstrates the ability to complete the project specified in the design.
"Design-build" means the delivery system in which a design-builder provides labor, materials, and other construction services for a public redevelopment project under a contract with a municipality or redevelopment entity.
"Design-builder" means the entity, whether natural person, partnership, joint stock company, corporation, trust, professional corporation, business association, or other legal business entity or successor, that proposes to design and construct any public redevelopment project who is registered pursuant to the provisions of P.L.1999, c.238 (C.34:11-56.48 et seq.), and classified by the New Jersey Division of Property Management and Construction or the New Jersey Department of Transportation, where applicable, to perform work on a design-build project.
"Design professional" means the entity, whether natural person, partnership, joint stock company, corporation, trust, professional corporation, business association, or other legal business entity or successor that provides licensed and prequalified architectural, engineering, or surveying services in accordance with R.S.45:3-1 et seq., and P.L.1938, c.342 (C.45:8-27 et seq.), and that shall be responsible for planning, designing, and observing the construction of the public redevelopment project.
"Public redevelopment project" means a redevelopment project where the construction is done under contract with a public body and is: (1) paid for in whole or in part out of the funds of a public body, or (2) done on a property or premises owned, leased, or to be subsequently leased by a public body. "Public redevelopment project" shall not be construed to include construction on property which is privately owned and entirely financed by a private developer.
7. This act shall take effect immediately.
STATEMENT
This bill would require the use of either a design-bid-build or design-build delivery system for construction projects undertaken by a county improvement authority pursuant to the "county improvement authorities law," P.L.1960, c.183 (C.40:37A-44 et seq.) and for public redevelopment projects undertaken by a municipality or redevelopment entity pursuant to the "Local Redevelopment and Housing Law," P.L.1992, c.79 (C.40A:12A-1 et seq.). If a design-bid-build delivery system is selected, then the provisions of the "Local Public Contracts Law," P.L.1971, c.198 (C.40A:11-1 et seq.), would apply. If a design-build delivery system is selected, then the provisions of the "Design Build Construction Services Procurement Act," P.L.2021, c.71 (C.52:35B-1 et seq.) would apply.
