AN ACT Relating to water quality services; amending RCW 35.42.080 and 56.08.070; reenacting and amending RCW 35.23.352; adding a new section to chapter 19.86 RCW; adding a new section to chapter 35.92 RCW; adding a new section to chapter 35.94 RCW; adding a new section to chapter 36.34 RCW; adding a new chapter to Title 70 RCW; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The long-range health and economic and environmental goals for the state of Washington require the protection of the state's surface and underground waters for the health, safety, use, and enjoyment of its people. It is the purpose of this chapter to provide public bodies an additional means by which to provide for financing, development, and operation of water pollution control facilities needed for achievement of state and federal water pollution control requirements for the protection of the state's waters.

It is the intent of the legislature that public bodies be authorized to provide service from water pollution control facilities by means of service agreements with public or private parties as provided in this chapter.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Agreement" means any agreement to which a municipal corporation and a service provider are parties by which the service provider agrees to deliver service to such corporation in connection with its design, financing, construction, ownership, operation, or maintenance of water pollution control facilities in accordance with this chapter.

(2) "Public body" means the state of Washington or any agency, county, city or town, political subdivision, municipal corporation, quasi-municipal corporation, and those Indian tribes now or hereafter recognized as such by the federal government.

(3) "Service provider" means any privately owned or publicly owned profit or nonprofit corporation, partnership, joint venture, association, or other person or entity that is legally capable of contracting for and providing service with respect to the design, financing, ownership, construction, operation, or maintenance of water pollution control facilities in accordance with this chapter.

(4) "Water pollution" means such contamination, or other alteration of the physical, chemical, or biological properties of any waters of the state, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is likely to create a nuisance or render such waters harmful, detrimental, or injurious to the public health, safety, or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish, or other aquatic life.

(5) "Water pollution control facilities" or "facilities" means any facilities, systems, or subsystems owned or operated by a public body, or owned or operated by any person or entity for the purpose of providing such service to a public body, for the control, collection, storage, treatment, disposal, or recycling of waste water, including but not limited to sanitary sewage, storm water, residential, commercial, industrial, and agricultural wastes, that are causing water quality degradation due to concentrations of conventional, nonconventional, or toxic pollutants. Water pollution control facilities include all equipment, utilities, structures, real property, and interests in and improvements on real property necessary for or incidental to such purpose. Water pollution control facilities also include such facilities, equipment, and collection systems as are necessary to protect federally designated sole source aquifers.

NEW SECTION. Sec. 3. (1) Public bodies may enter into agreements with service providers for the furnishing of service in connection with water pollution control facilities under the process set forty in section 4 of this act. The agreements may provide that a public body pay a minimum periodic fee in consideration of the availability of the service without regard to the amount of service actually used during all or any part of the contractual period. Agreements may be for a term not to exceed forty years or the life of the associated water pollution control facilities, whichever is longer, and may be renewable.

(2) The source of funds to meet periodic payment obligations assumed by a public body pursuant to an agreement permitted under this section may be paid from taxes, or solely from user fees, charges, or other revenues pledged to the payment of the periodic obligations, or both.

NEW SECTION. Sec. 4. Notwithstanding the charter of any public body, such a public body may secure services by means of an agreement with a service provider. Such an agreement may obligate a service provider to finance, construct, own, operate, or maintain water pollution control facilities by which services are provided to the public body. Service agreements and related agreements under this chapter shall be entered into in accordance with the following procedure:

(1) The public body shall publish notice that it is seeking to secure certain specified services by means of entering into an agreement with a service provider. The notice shall be published in the official newspaper of the public body, or if there is no official newspaper then in a newspaper in general circulation within the boundaries of the public body, at least once each week for two consecutive weeks. The final notice shall appear not less than sixty days before the date for submission of proposals. The notice shall state (a) the nature of the services needed, (b) the location in the public body's offices where the requirements and standards for construction, operation, or maintenance of projects needed as part of the services are available for inspection, and (c) the final date for the submission of proposals.

(2) The request for proposals shall indicate (a) the time and place responses are due, (b) evaluation criteria to be considered in selecting a service provider, and (c) minimum requirements or other limitations applying to selection.

(3) The criteria set forth in the request for proposals shall be those determined to be relevant by the legislative authority of the public body, which may include but shall not be limited to: The respondent's prior experience, including design, construction, or operation of other similar facilities, respondent's management capability, schedule availability, and financial resources; cost of the service; facility design; system reliability; performance standards required for the facilities' compatibility with existing service facilities operated by the public body or other providers of service to the public body; project performance warranties; penalty and other enforcement provisions; environmental protection measures to be used; and allocation of project risks.

(4) After responsive proposals under subsections (1) through (3) of this section have been received, discussions may be held with any or all respondents considered qualified to assure full understanding of, and responsiveness to, the request notice. Any respondent with whom discussions are held shall be accorded a reasonable opportunity for revision of its proposal before beginning the negotiation provided in subsection (5) of this section, for the purpose of obtaining the best and final proposals.

(5) After the discussions, if any, are held, the public body may negotiate and contract with the respondent whose proposal the public body determines to be the most advantageous to it, considering the criteria set forth in the request for proposals. If the negotiation is unsuccessful, the public body may begin negotiations with any other qualified respondent.

NEW SECTION. Sec. 5. A public body entering into an agreement with a service provider under this chapter may acquire, by purchase or lease, property and property rights, both within and without its jurisdiction, that are desirable or necessary in connection with the delivery of services for public use to be provided the public body under the agreement. To the extent authorized under existing law, the property and property rights may be acquired by the use of eminent domain if industrial development revenue bonds are not issued under chapter 39.84 RCW for the project. Public bodies may institute and maintain such proceedings as may be authorized by the general laws of this state for the appropriation of the property for public use.

NEW SECTION. Sec. 6. A public body may sell, lease, or assign public property, including property acquired under section 5 of this act, for fair market value to any service provider as part of a service agreement entered into under the authority of this chapter. The property sold or leased shall be used by the provider, directly or indirectly, in providing services to the public body. Such use may include demolition, modification, or other use of the property as may be necessary to execute the purposes of the service agreement.

NEW SECTION. Sec. 7. (1) Public bodies that are not authorized to provide for the issuance of industrial development revenue bonds under Article XXXII, section 1 of the state Constitution and chapter 39.84 RCW, or service providers contracting under this chapter with such public bodies, may enter into agreements with public bodies that are so authorized by which such bonds may be issued to facilitate the financing of water pollution control facilities under the authority of this chapter.

(2) A public body that enters into a service agreement under this chapter, under which a facility is owned wholly or partially by a service provider, shall be eligible for a grant or loan to the extent permitted by law or regulation as if the entire portion of the facility dedicated to service to such public body were publicly owned. Such grant or loan shall be made to and shall inure to the benefit only of the public body, and not the service provider.

NEW SECTION. Sec. 8. This chapter shall provide an additional method for providing services from and in connection with water pollution control facilities and shall be regarded as supplemental and additional to powers conferred by other state laws and by federal laws.

NEW SECTION. Sec. 9. This chapter may be cited as the "water quality joint development act."

NEW SECTION. Sec. 10. A new section is added to chapter 19.86 RCW to read as follows:

Entry by a municipal corporation or service provider into an agreement under authority of chapter 70.-- RCW (sections 1 through 9 of this act) shall not violate any provision of this chapter. Actions of a service provider in securing or performing under such an agreement shall remain subject to the provisions of this chapter.

Sec. 11. Section 35.23.352, chapter 7, Laws of 1965 as last amended by section 7, chapter 169, Laws of 1985 and by section 2, chapter 219, Laws of 1985 and by section 24, chapter 469, Laws of 1985 and RCW 35.23.352 are each reenacted and amended to read as follows:

(1) Any second or third class city or any town may construct any public work or improvement by contract or day labor without calling for bids therefor whenever the estimated cost of the work or improvement, including cost of materials, supplies and equipment will not exceed the sum of fifteen thousand dollars. Whenever the cost of the public work or improvement, including materials, supplies and equipment, will exceed fifteen thousand dollars, the same shall be done by contract. All such contracts shall be let at public bidding upon posting notice calling for sealed bids upon the work. The notice thereof shall be posted in a public place in the city or town and by publication in the official newspaper once each week for two consecutive weeks before the date fixed for opening the bids. The notice shall generally state the nature of the work to be done that plans and specifications therefor shall then be on file in the city or town hall for public inspections, and require that bids be sealed and filed with the council or commission within the time specified therein. Each bid shall be accompanied by a bid proposal deposit in the form of a cashier's check, postal money order, or surety bond to the council or commission for a sum of not less than five percent of the amount of the bid, and no bid shall be considered unless accompanied by such bid proposal deposit. The council or commission of the city or town shall let the contract to the lowest responsible bidder or shall have power by resolution to reject any or all bids and to make further calls for bids in the same manner as the original call. When the contract is let then all bid proposal deposits shall be returned to the bidders except that of the successful bidder which shall be retained until a contract is entered into and a bond to perform the work furnished, with surety satisfactory to the council or commission, in the full amount of the contract price. If the bidder fails to enter into the contract in accordance with his bid and furnish a bond within ten days from the date at which he is notified that he is the successful bidder, the check or postal money order and the amount thereof shall be forfeited to the council or commission or the council or commission shall recover the amount of the surety bond. If no bid is received on the first call the council or commission may readvertise and make a second call, or may enter into a contract without any further call or may purchase the supplies, material or equipment and perform the work or improvement by day labor.

(2) In addition to the procedures of subsection (1) of this section, a second or third class city or a town may use a small works roster and award contracts under this subsection for contracts of one hundred thousand dollars or less.

(a) The city or town may maintain a small works roster comprised of all contractors who have requested to be on the roster and are, where required by law, properly licensed or registered to perform such work in this state.

(b) Whenever work is done by contract, the estimated cost of which is one hundred thousand dollars or less, and the city uses the small works roster, the city or town shall invite proposals from all appropriate contractors on the small works roster: PROVIDED, That whenever possible, the city or town shall invite at least one proposal from a minority or woman contractor who shall otherwise qualify under this section. The invitation shall include an estimate of the scope and nature of the work to be performed, and materials and equipment to be furnished.

(c) When awarding such a contract for work, the estimated cost of which is one hundred thousand dollars or less, the city or town shall award the contract to the contractor submitting the lowest responsible bid.

(3) Any purchase of supplies, material, equipment or services other than professional services, except for public work or improvement, where the cost thereof exceeds two thousand dollars shall be made upon call for bids: PROVIDED, That the limitations herein shall not apply to any purchases of materials at auctions conducted by the government of the United States, any agency thereof or by the state of Washington or a political subdivision thereof.

(4) Bids shall be called annually and at a time and in the manner prescribed by ordinance for the publication in a newspaper published or of general circulation in the city or town of all notices or newspaper publications required by law. The contract shall be awarded to the lowest responsible bidder.

(5) For advertisement and competitive bidding to be dispensed with as to purchases between two thousand and four thousand dollars, the city legislative authority must authorize by resolution a procedure for securing telephone and/or written quotations from enough vendors to assure establishment of a competitive price and for awarding the contracts for purchase of materials, equipment, or services to the lowest responsible bidder. Immediately after the award is made, the bid quotations obtained shall be recorded and open to public inspection and shall be available by telephone inquiry.

(6) This section does not apply to performance-based contracts, as defined in RCW 39.35A.020(3), that are negotiated under chapter 39.35A RCW.

(7) This section does not apply to service agreements entered into pursuant to chapter 70.-- RCW (sections 1 through 9 of this 1986 act).

Sec. 12. Section 35.42.080, chapter 7, Laws of 1965 as amended by section 28, chapter 469, Laws of 1985 and RCW 35.42.080 are each amended to read as follows:

A lease and lease back agreement requiring a lessee to build on city or town property shall be made pursuant to a call for bids upon terms most advantageous to the city or town. The call for bids shall be given by posting notice thereof in a public place in the city or town and by publication in the official newspaper of the city or town once each week for two consecutive weeks before the date fixed for opening the bids. The city council or commission of the city or town may by resolution reject all bids and make further calls for bids in the same manner as the original call. If no bid is received on the first call, the city council or commission may readvertise and make a second call, or may execute a lease without any further call for bids.

As an alternative to the procedure required by this section, the procedures in section 4 of this 1986 act may be followed for agreements entered into pursuant to chapter 70.-- RCW (sections 1 through 9 of this 1986 act).

NEW SECTION. Sec. 13. A new section is added to chapter 35.92 RCW to read as follows:

The provisions of this chapter shall not apply to agreements entered into pursuant to chapter 70.-- RCW (sections 1 through 9 of this act).

NEW SECTION. Sec. 14. A new section is added to chapter 35.94 RCW to read as follows:

The provisions of this chapter shall not apply to dispositions of utility property in connection with an agreement entered into pursuant to chapter 70.-- RCW (sections 1 through 9 of this act).

NEW SECTION. Sec. 15. A new section is added to chapter 36.34 RCW to read as follows:

The provisions of RCW 36.34.150 through 36.34.200 shall not apply to agreements entered into pursuant to chapter 70.-- RCW (sections 1 through 9 of this act).

Sec. 16. Section 44, chapter 210, Laws of 1941 as last amended by section 1, chapter 154, Laws of 1985 and RCW 56.08.070 are each amended to read as follows:

(1) All materials purchased and work ordered, the estimated cost of which is in excess of five thousand dollars shall be let by contract. All contract projects, the estimated cost of which is less than twenty-five thousand dollars, may be awarded to a contractor on the small works roster. The small works roster shall be comprised of all responsible contractors who have requested to be on the list. The board of sewer commissioners may set up uniform procedures to prequalify contractors for inclusion on the small works roster. The board of sewer commissioners shall authorize by resolution a procedure for securing telephone and/or written quotations from the contractors on the small works roster to assure establishment of a competitive price and for awarding contracts to the lowest responsible bidder. Such procedure shall require that a good faith effort be made to request quotations from all contractors on the small works roster. Immediately after an award is made, the bid quotations obtained shall be recorded, open to public inspection, and available by telephone inquiry. The small works roster shall be revised once a year. All contract projects equal to or in excess of twenty-five thousand dollars shall be let by competitive bidding. Before awarding any competitive contract the board of sewer commissioners shall cause a notice to be published in a newspaper in general circulation where the district is located at least once, ten days before the letting of such contract, inviting sealed proposals for such work, plans and specifications which must at the time of publication of such notice be on file in the office of the board of sewer commissioners subject to public inspection. Such notice shall state generally the work to be done and shall call for proposals for doing the same to be sealed and filed with the board of sewer commissioners on or before the day and hour named therein.

(2) Each bid shall be accompanied by a bid proposal deposit in the form of a certified check, cashier's check, postal money order, or surety bond payable to the order of the county treasurer for a sum not less than five percent of the amount of the bid and no bid shall be considered unless accompanied by such bid proposal deposit. At the time and place named such bids shall be publicly opened and read and the board of sewer commissioners shall proceed to canvass the bids and may let such contract to the lowest responsible bidder upon plans and specifications: PROVIDED, That no contract shall be let in excess of the cost of said materials or work, or if in the opinion of the board of sewer commissioners all bids are unsatisfactory they may reject all of them and readvertise and in such case all checks, cash or bid bonds shall be returned to the bidders. If such contract be let, then all checks, cash or bid bonds shall be returned to the bidders, except that of the successful bidder, which shall be retained until a contract shall be entered into for the purchase of such materials or doing such work, and a bond to perform such work furnished with sureties satisfactory to the board of sewer commissioners in the full amount of the contract price between the bidder and the commission in accordance with bid. If said bidder fails to enter into said contract in accordance with said bid and furnish such bond within ten days from the date at which he is notified that he is the successful bidder, the said check, cash or bid bonds and the amount thereof shall be forfeited to the sewer district.

(3) In the event of an emergency when the public interest or property of the sewer district would suffer material injury or damage by delay, upon resolution of the board of sewer commissioners, or proclamation of an official designated by the board to act for the board during such emergencies, declaring the existence of such emergency and reciting the facts constituting the same, the board, or the official acting for the board, may waive the requirements of this chapter with reference to any purchase or contract.

(4) This section shall not apply to agreements entered into pursuant to chapter 70.--!sc ,1RCW (sections 1 through 9 of this 1986 act).

NEW SECTION. Sec. 17. Sections 1 through 9 of this act shall constitute a new chapter in Title 70 RCW.

NEW SECTION. Sec. 18. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 19. This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect immediately.