Township of Waterford, NJ Chapter 10 Contracts, Professional Service

[HISTORY: Adopted by the Township Committee of the Township of Waterford as indicated in article histories. Amendments noted where applicable.]

GENERAL REFERENCES

Purchasing procedures — See Ch. 59.

Article I Professional Service Contracts

[Adopted 9-27-2006 by Ord. No. 2006-15[1]]

[1] Editor's Note: This ordinance was repealed 12-28-2011 by Ord. No. 2011-23 and then subsequently reinstated 1-25-2012 by Ord. No. 2012-1.

§ 10-1 Adoption of standards; applicability.

The following standards and criteria are hereby adopted and shall be made applicable to all contracts awarded and/or confirmed by the Township Committee and any and all boards, authorities, and committees appointed, either through the authority of statute or ordinance, by the Township Committee, unless a specific contrary intention is expressed in an individual case by the Township Committee.

§ 10-2 Award of public professional services and other no-bid contracts.

A. Purpose and intent. Although professional services contracts and certain other contracts for goods and services are exempt from the competitive bidding requirements of the Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq., the Township Committee deems it appropriate, and consistent with the provisions of recently enacted New Jersey legislation, now codified at N.J.S.A. 19:44A-20.1 et seq., to henceforth award such contracts through a competitive, quality-based, fair and open process, unless a specific determination to the contrary is made by the Township Committee.

B. Process for award of professional services and other no-bid contracts. The Township of Waterford, or any agency or instrumentality thereof, shall not enter into a contract, including a professional services contract, or such other contract which is exempt from public bidding requirements, having an anticipated value in excess of $17,500, as determined by the Township of Waterford or any agency or instrumentality, with a business entity, except through a contract that is awarded pursuant to a fair and open process if, during the preceding one-year period, that business entity has made a contribution that is reportable by the recipient under N.J.S.A. 19:44A-1 et seq. to any municipal committee of a political party if a member of that political party is in office as a member of the Township Committee when the contract is awarded or to any candidate committee of any person serving in an elected public office of the Township of Waterford when the contract is awarded. The fair and open process shall be quality-based and shall be as follows:

(1) Professional services may be awarded by virtue of a publicly advertised request for proposals (RFP) which will be issued as one document for those appointments which are made on an annual basis, such as, but not limited to, the positions of: Township Attorney, Township Engineer, Township Planner, Planning Board Attorney, Planning Board Engineer, Zoning Board Attorney, Zoning Board Engineer, and such other statutory and/or ordinance public positions.

(2) For said positions, no contract shall be awarded unless and until the positions are:

(a) Publicly advertised in newspapers or on the internet website maintained by the Township in sufficient time to give notice in advance of the solicitation for the contracts;

(b) Awarded under a process that provides for public solicitation of proposals and qualifications, including the following:

[1] Experience and reputation in the field;

[2] Knowledge of the subject matter of the services to be provided to the Township;

[3] Knowledge of the Township, its affairs and operations;

[4] Availability to accommodate any required meetings of the Township;

[5] Compensation proposal;

[6] Compliance with the minimum qualifications established by the Township for the position;

[7] Other factors determined to be in the best interest of the Township.

(c) Awarded and disclosed under criteria established in writing by the Township of Waterford prior to the solicitation of proposals or qualifications as set forth in this article;

(d) Publicly announced when awarded; and as to those RFPs which prove to be unsuccessful, the Township Clerk shall retain a copy of same on file for a period of not less than 60 days.

(3) For contracts which arise on an occasional basis, such as appraisals needed for the acquisition of land and/or open space, as well as title searches, surveying, and similar work associated with same; and comparable assignments, such as planning services needed for Master Plan updates, appraisals, special counsel, special project engineer contracts, etc., professional services contracts may be awarded without following the foregoing provisions, so long as:

(a) The anticipated value does not exceed the $17,500 threshold set forth above; and

(b) The Township Clerk makes every effort to solicit at least two proposals for said work.

C. Review of RFPs by review committee. A review committee shall be established by the Mayor, consisting of not fewer than two committee members, to prepare, process and evaluate any RFP issued pursuant to the professional services contracting procedures set forth above. The review committee shall evaluate the respective qualifications and/or proposals, taking into consideration the designated qualifications and/or performance criteria, experience, reputation of vendor, quality of services, quoted fee and other relevant factors in making a recommendation of award to the Township Committee; and the Township Clerk may, in his/her sole discretion, conduct negotiations with qualified vendors, after receipt of proposals, in order to achieve the best possible contract terms and conditions for the Township and its taxpayers. No contract shall be awarded, however, unless same is authorized by resolution duly adopted in public session by the Township Committee.

D. Contribution statement by professional business entity.

(1) Prior to awarding any contract or agreement to procure services, including banking or insurance coverage services, with any professional business entity, the Township or any of its purchasing agents or agencies, as the case may be, shall receive a sworn statement from the professional business entity, made under penalty of perjury, that the bidder or offer or has not made a contribution in violation of this article.

(2) The professional business entity shall have a continuing duty to report any violations of this article that may occur during the negotiation or duration of a contract. The certification required under this subsection shall be made prior to entry into the contract or agreement with the Township and shall be in addition to any other certifications that may be required by any other provision of law.

E. Contracts issued without use of the RFP process.

(1) In circumstances where the Township Committee determines that the use of the RFP process is not appropriate, such as, but not limited to, contracts with other government agencies, and agreements with public utilities, the Township Clerk shall use his/her best efforts to obtain at least two quotations for the work and shall require the contractor to fully comply with the provisions of N.J.S.A.19:44A-22 et seq. and related statutes.

(2) No business entity which enters into negotiations for, or agrees to, any contract or agreement with the Township of Waterford or any department or agency thereof, or of its independent authorities for the rendition of professional, banking or insurance coverage services, or any other consulting services, shall solicit or make any contribution of money, or pledge of a contribution, including in-kind contributions, to any Township of Waterford municipal candidate or holder of the public office having ultimate responsibility for the award of the contract, or campaign committee supporting such candidate or officeholder, or to any Waterford Township party committee, between the time of first communications between that business entity and the Township regarding a specific professional services agreement and the later of the termination of negotiations or the completion of the contract or agreement.

F. Emergency exceptions. Notwithstanding the foregoing, the Township Committee recognizes that the New Jersey Legislature has provided for certain emergencies and further recognizes that the procedure outlined above might not be capable of being achieved in the event of an emergency or other time constraints. Thus, should a situation arise, and time does not permit resort to this procedure, and the immediate performance of services is necessary, then an award for same may be made in accordance with the provisions of the Local Public Contracts Law relating to emergency contracts and such rules and regulations as may be promulgated, from time to time, by the Township Committee with regard to same. No such emergency contracts, however, may be awarded without a resolution establishing a basis for the deviation from the procedures outlined herein.

Article II Pay to Play

[Adopted 7-18-2012 by Ord. No. 2012-9]

§ 10-3 Definitions.

As used in this article, the following terms shall have the meanings indicated:

BUSINESS ENTITY

Whose contributions are regulated by this article:

A. An individual, including the individual’s spouse, and any child/children;

B. A firm, corporation, professional corporation, partnership, limited liability company, organization, association, and any other manner and kind of business entity;

C. Any person who owns 10% or more of the equity or ownership or income interests in a person or entity, as defined in Subsections A and B above, and their spouses and child/children;

D. All partners or officers of such an entity, in the aggregate, and their spouses and child/children;

E. Any person, subcontractor, subsidiary, corporation, firm, partnership, limited liability company, organization or association who or which has received or indefeasibly acquired the right to receive, from a person described in Subsection A above, more than $100,000 in compensation or income of any kind (including, by way of illustration and not limitation, wages, salaries, sums paid to independent contractors, benefits, dividends, profit-sharing, pension contributions, deferred contributions, stock, stock options or gifts) in any twelve-month period prior to the award of, or during the term of, a contract subject to this article.

CAMPAIGN COMMITTEE

(1) Every candidate for Township of Waterford elective municipal office; (2) every candidate committee established by or for the benefit of a candidate for Township of Waterford elective municipal office; (3) every joint candidate committee established in whole or in part by or for the benefit of a candidate for Township of Waterford elective municipal office; (4) every political party committee of the Township of Waterford; and (5) every political committee, continuing political committee, or other form of association or organization that regularly engages in the support of candidates for the Township of Waterford Municipal elective offices or Township of Waterford Municipal political parties or political party committees. The terms in this definition shall have the meanings prescribed in N.J.A.C. 19:25-1.7.

CONTRACT FOR PROFESSIONAL OR EXTRAORDINARY SERVICES

All contracts for “professional services” and “extraordinary unspecifiable services,” as such terms are used in N.J.S.A. 40A:11-5.

CONTRIBUTION

The meaning prescribed in N.J.A.C. 19:25-1.7. By way of illustration, and not limitation, this definition includes pledges, loans, and in-kind contributions.

§ 10-4 Prohibition on awarding public contracts to certain contributors.

A. To the extent that it is not inconsistent with state or federal law, the Township of Waterford and any of its departments, instrumentalities or purchasing agents shall not enter into any agreement or otherwise contract to procure “professional services,” as such term is defined at N.J.S.A. 40A:11-2(6) and used at N.J.S.A. 40A:11-5(1)(a)(i), and/or banking, insurance or other consulting service (hereinafter “professional services”), nor “extraordinary unspecified services,” as such term is defined at N.J.S.A. 40A:11-2(7) and used at N.J.S.A. 40A:11-5(1)(a)(ii), and/or media, public relations, lobbying, parking garage management or other consulting and/or management service (hereinafter “extraordinary unspecified services”) from any business entity if such business entity has, within one calendar year immediately preceding the date of the contract or agreement, solicited or made any contribution in excess of the thresholds specified in Subsection C of this section to:

(1) A candidate, candidate committee or joint candidates committee of any candidate for elective municipal office in the Township of Waterford or a holder of public office having ultimate responsibility for the award of a contract;

(2) Any Township of Waterford political party committee; or

(3) Any continuing political committee or political action committee that regularly engages in the support of the Township of Waterford candidates and elections.

B. Contributions.

(1) No business entity who submits a proposal for, enters into, negotiates for, or agrees to any contract or agreement with the Township of Waterford or any of its departments or instrumentalities for the rendition of professional services or extraordinary unspecified services shall, between the time of first communication between that business entity and the municipality regarding a specific agreement for professional services or extraordinary unspecified services and the later of the termination of negotiations or rejection of any proposal, or the completion of the performance or specified time period of that contract or agreement, solicit or make, either directly or indirectly, any contribution in excess of the thresholds specified in Subsection C of this section to:

(a) A candidate, candidate committee or joint candidates committee of any candidate for elective municipal office in the Township of Waterford or a holder of public office having ultimate responsibility for the award of a contract;

(b) Any Township of Waterford political party committee; or

(c) Any political action committee.

(2) For purposes of this subsection, an indirect contribution shall include a contribution made to a political organization (as defined in Subsection F below) that subsequently makes a contribution to (i) any category of individual or organization described above in Subsection B(1)(a), (b) or (c) of this section; or (ii) another political organization, which then directly, or through a series of subsequent contributions to other political organizations, makes a contribution to any category of individual or organization described above in Subsection B(1)(a), (b) or (c) of this section, regardless of whether:

(a) The business entity had knowledge of such political organization’s or political organizations’, as the case may be, contributions; or

(b) Such political organization's or political organizations', as the case may be, use the funds of the business entity in making the contribution or contributions, as the case may be.

C. Monetary thresholds.

(1) The monetary thresholds of this article are:

(a) A maximum of $300 per calendar year for any purpose to any single candidate or candidate committee for Mayor or governing body, or $500 per calendar year to any joint candidates committee for Mayor or governing body, or $300 per calendar year to a political committee or political party committee of the Township of Waterford;

(b) A maximum of $500 per calendar year to any political action committee that regularly engages in the support of Township of Waterford candidates.

(2) However, for each business entity party to a contract for professional or extraordinary unspecified services as defined in Subsection A, when such business entity’s contribution is aggregated with all “persons” defined in “business entity” in § 10-3 above, by virtue of their affiliation to that business entity party, a maximum of $2,500 to all Township of Waterford candidates, candidates committees, joint candidate committees, and holders of public office having ultimate responsibility for the award of a contract, all Township of Waterford political committees and political party committees, as described herein, combined, without violating Subsection A of this section.

D. For purposes of this section, the office that is considered to have ultimate responsibility for the award of the contract shall be the Mayor and Township Committee of the Township of Waterford.

E. Rules regarding subcontractors. No person may be awarded a subcontract to perform under a contract subject to this article if the subcontractor would be disqualified by Subsection A from receiving the contract at the time that the subcontract is awarded; nor may any person who would be disqualified by Subsection A from receiving the contract perform substantially all of the obligations described in a contract for professional or extraordinary services that is subject to this article.

F. No Waterford Township candidate for committee shall accept any contribution from any state, county or municipal or other political party or committee, political action committee, union or any other association or organization that regularly engages in the support of candidates for elective office (collectively, ”political organizations” and each, a “political organization”) to the extent the political organization received funds constituting such contribution from another political organization or individual and that results in contributions that exceed the contribution thresholds, limits and restrictions set forth in this article. It is the express intent and purpose of this provision to prohibit the practice commonly known as “wheeling.”

G. Any union whose membership has a direct interest in any contract with the Township of Waterford shall be subject to the contribution thresholds set forth in Subsection C above.

§ 10-5 Contributions made prior to the effective date.

No contribution or solicitation of contributions made prior to the effective date of this article shall be deemed to give rise to a violation of this article.

§ 10-6 Contract renewal.

No contract subject to this article may be renewed, extended, or materially modified unless the resulting renewal, extension, or modification would be allowable under the provisions of this article if it were an initial contract.

§ 10-7 Contribution statement by business entity.

A. Prior to awarding any contract or agreement to procure “professional services” or “extraordinary unspecified services” from any business entity, the Township of Waterford or its purchasing agents and departments, as the case may be, shall receive a sworn statement from said business entity which is the intended recipient of said contract that he/she/it has not made a contribution in violation of § 10-4 of this article. The Township of Waterford, its purchasing agents and departments shall be responsible for informing the Township Committee that the aforementioned sworn statement has been received and that the business entity is not in violation of this article, prior to awarding the contract or agreement.

B. A business entity shall have a continuing duty to report to the Township of Waterford any contributions that constitute a violation of this article that are made during the negotiation, proposal process or the duration of a contract. The Township of Waterford, its purchasing agents and departments shall be responsible for informing the governing body within 10 business days after receipt of said report from the business entity, or at the next Township Committee meeting following receipt of said report from the business entity, whichever comes first.

C. The certification required under this section shall be made prior to entry into the contract or agreement with the Township of Waterford, or prior to the provision of services or goods, as the case may be, and shall be in addition to any other certifications that may be required by any other provision of law.

§ 10-8 Return of excess contributions.

A business entity that is a party to a contract for professional services or extraordinary unspecified services may cure a violation of § 10-4 of this article if, within 30 days after the date on which the applicable ELEC report is published, said business entity notifies the municipality in writing and seeks and receives reimbursement of the contribution from the recipient of such contribution.

§ 10-9 Exemptions.

The contribution limitations prior to entering into a contract in § 10-4A do not apply to contracts which are awarded to the lowest responsible bidder after public advertising for bids and bidding therefor, within the meaning of N.J.S.A. 40A:11-4, or are awarded in the case of emergency under N.J.S.A. 40A:11-6. There is no exemption for contracts awarded pursuant to a “fair and open process” under N.J.S.A. 19:44A-20 et seq.

§ 10-10 Violations and penalties. [1]

A. It shall be a material breach of the terms of a Township of Waterford agreement or contract for professional services or extraordinary unspecified services when a business entity that is a party to such agreement or contract has:

(1) Made or solicited a contribution in violation of this article;

(2) Knowingly concealed or misrepresented a contribution given or received;

(3) Made or solicited contributions through intermediaries for the purpose of concealing or misrepresenting the source of the contribution;

(4) Made or solicited any contribution on the condition or with the agreement that it will be contributed to a candidate, candidate committee or joint committee of any candidate for elective municipal office in the Township of Waterford, or a holder of public office having ultimate responsibility for the award of a contract, or any Township of Waterford political committee or political party committee, or any political action committee;

(5) Engaged or employed a lobbyist or consultant with the intent or understanding that such lobbyist or consultant would make or solicit any contribution which, if made or solicited by the professional business entity itself, would subject that entity to the restrictions of this article;

(6) Funded contributions made by third parties, including consultants, attorneys, family members and employees;

(7) Engaged in any exchange of contributions to circumvent the intent of this article; or

(8) Directly or indirectly, through or by any other person or means, done any act which, if done directly, would subject that entity to the restrictions of this article.

B. Furthermore, any business entity that violates Subsection A(1) through (8) above shall be disqualified from eligibility for future Township of Waterford contracts for a period of four calendar years from the date of the violation.

C. Any person who knowingly, purposely, or recklessly violates any provision of this article, or who conspires with another person to violate any provision of this article, or who, with the purpose of promoting or facilitating a violation of this article, solicits another person to commit it, or aids or agrees or attempts to aid another person in planning or committing it, shall be subject to punishment, including fines and/or imprisonment as set forth in N.J.S.A. 19:44A-22, which penalty provisions shall be utilized by the Township of Waterford in the enforcement of this article.

[1] Editor's Note: See also Ch. 1, Art. II, General Penalty.