[Second Reprint]
ASSEMBLY, No. 3765
STATE OF NEW JERSEY
221st LEGISLATURE
INTRODUCED FEBRUARY 22, 2024
Sponsored by:
Assemblyman CLINTON CALABRESE
District 36 (Bergen and Passaic)
Co-Sponsored by:
Assemblywomen Haider, Speight and Carter
SYNOPSIS
Requires contract between certain governmental units and online parking payment service providers stipulate service provider not charge user during certain times.
CURRENT VERSION OF TEXT
As reported by the Senate Community and Urban Affairs Committee on June 5, 2025, with amendments.
An Actconcerning online parking payment services and amending 2[R.S.40:52-1 and P.L.1948, c.198] and supplementing the "Local Public Contracts Law," P.L.1971. c.1982.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
2[1. R.S.40:52-1 is amended to read as follows:
40:52-1. The governing body may make, amend, repeal, and enforce ordinances to license and regulate:
a. [All] all vehicles used for the transportation of passengers, baggage, merchandise, and goods and chattels of every kind, and the owners and drivers of [all such] those vehicles; and the places and premises in which or at which the different kinds of business or occupations mentioned herein are carried on and conducted. Nothing herein contained shall be construed as modifying or repealing any of the provisions of chapter 4 of Title 48 of the Revised Statutes (R.S.48:4-1 et seq.);
b. [Autobuses] autobuses, and the owners and drivers of [all such] those vehicles, and to fix the fees for [such] licenses, which may be imposed for revenue, and to prohibit the operation of [all such] those vehicles in the public streets or places of [such] the municipality, unless [such] the ordinances are complied with, whether [such] the vehicles are operated over routes wholly or partly within the territorial limits of [such] the municipality; the powers conferred by this section shall not be in substitution of but in addition to whatever other right, power, and authority [any such] a municipality may at any time have as to licensing, regulating, or control of the operation of [such] autobuses, commonly called jitneys, and this section shall not be construed as modifying or repealing any of the provisions of chapter 4 (R.S.48:4-1 et seq.) or article 3 of chapter 16 (R.S.48:16-23 et seq.) of Title 48 of the Revised Statutes;
c. [Cartmen] cartmen, expressmen, baggagemen, porters, common criers, hawkers, peddlers, employment agencies, pawnbrokers, junk shop-keepers, junk dealers, motor vehicle junk dealers, street sprinklers, bill posters, bill tackers, sweeps, scavengers, itinerant vendors of merchandise, medicines, and remedies; and the places and premises in which or at which the different kinds of business or occupations mentioned herein are conducted and carried on; provided, however, no ordinance regulating solicitation for services shall be applicable to solicitations, whether written or oral, for snow shoveling services made within 24 hours of a snowstorm that has been predicted by a commonly recognized commercial or governmental weather reporting entity;
d. [Hotels] hotels, boardinghouses, lodging and rooming houses, trailer camps and camp sites, motels, furnished and unfurnished rented housing or living units, and all other places and buildings used for sleeping and lodging purposes, and the occupancy thereof, restaurants and all other eating places, and the keepers thereof;
e. [Automobile] automobile garages, dealers in second-hand motor vehicles and parts thereof, bathhouses, swimming pools, and the keepers thereof;
f. [Theatres] theaters, cinema, and show houses, opera houses, concert halls, dance halls, pool or billiard parlors, bowling alleys, exhibition grounds, and all other places of public amusement, circuses and traveling or other shows, plays, dances, exhibitions, concerts, theatrical performances, and all street parades in connection therewith;
g. [Lumber] lumber and coal yards, stores for the sale of meats, groceries, and provisions, dry goods and merchandise, and goods and chattels of every kind, and all other kinds of business conducted in the municipality other than herein mentioned, and the places and premises in or at which the business is conducted and carried on; street stands for the sale or distribution of newspapers, magazines, periodicals, books, and goods and merchandise or other articles;
h. [Street] street signs and other objects projecting beyond the building line, into or over any public street or highway;
i. [Auctioneers] auctioneers and their business, whether the auctioneers be real estate brokers engaged in selling at auction or real estate auctioneers licensed by the New Jersey Real Estate Commission; fix their fees, and license and regulate public auctions; make [such] regulations as the governing body of the municipality shall deem necessary[,] to protect the public against fraud at public auction sales, and for the safety and protection of the property of the municipality and its inhabitants, including the power to require from auctioneers a bond to the municipality, not exceeding the penal sum of [$5,000.00] $5,000, conditioned as the governing body shall require;
j. [Sales] sales of goods, wares, and merchandise to be advertised, held out, or represented, or which are advertised, held out, or represented, to the public, by any means, directly or by implication, as forced sales at reduced prices or as insurance, bankruptcy, mortgage foreclosure, insolvency, removal, loss, or expiration of lease or closing out sales, or as assignees', receivers', or trustees' sales or as sales of goods distrained or as sales of goods damaged by fire, smoke, or water, except any sale [which] that is to be held under a judicial order, judgment, or decree or a writ issuing out of any court or to enforce any lawful lien or power of sale whether by judicial process or not or by a licensed auctioneer; to make [such] regulations governing the advertisement, holding out, or representing to the public of [such] those sales, and the conduct thereof, as the governing body of the municipality shall deem necessary to protect the public against fraud; to prohibit the advertising, holding out, or representing to the public of any sale as being of the character above described [which] that is not of [such] that character and to fix license fees for the conduct of [such] those sales and to impose penalties for the violation of [any such] the ordinance;
k. (Deleted by amendment, P.L.1997, c.320[.])
l. (Deleted by amendment, P.L.1984, c.205[.])
m. [The] the rental of real property for commercial purposes wherein the lease is for a term less than 175 consecutive days. No ordinance adopted pursuant to this subsection shall apply to any lease or occupancy which results from a tenant holding over at the expiration or early termination of a lease with an original term in excess of 175 consecutive days, regardless of whether the holdover is month-to-month or for some other term of less than 175 consecutive days; [and]
n. [The] the rental of real property for a term less than 175 consecutive days for residential purposes by a person having a permanent place of residence elsewhere[.] ; and
o. parking in the municipality, and related contracting between the municipality and an online parking payment service provider, provided that the contract stipulate that the service provider shall not charge a parking fee to a user during a time period when parking is prohibited 1or is free1 at a parking project. "Online1parking1 payment service provider," "user," and "parking project" shall have the same meaning as defined in section 3 of P.L.1948, c.198 (C.40:11A-3).
Nothing in this chapter contained shall be construed to authorize or empower the governing body of any municipality to license or regulate any person holding a license or certificate issued by any department, board, commission, or other agency of the State; provided, however, that the governing body of a municipality may make, amend, repeal, and enforce ordinances to license and regulate real estate auctioneers or real estate brokers engaged in selling at auction and their business as provided in this section despite the fact that [such] real estate auctioneers or brokers may be licensed by the New Jersey Real Estate Commission and notwithstanding the provisions of this act or any other act.
(cf: P.L.2015, c.240, s.1)]2
2[2. Section 3 of P.L.1948, c.198 (C.40:11A-3) is amended to read as follows:
The following terms, wherever used or referred to in [this act] P.L.1948, c.198 (C.40:11A-1 et seq.), shall have the following respective meanings, unless a different meaning clearly appears from the context:
(a) "Authority" or "parking authority" or "authorities" or "parking authorities" shall mean any of the public corporations created pursuant to [this act] P.L.1948, c.198 (C.40:11A-1 et seq.).
(b) "Municipality" shall mean any city of any class, any town, township, village, borough, or any other municipality of this State other than a county or a school district. "County" shall mean any county of any class of this State. "The municipality" shall mean the particular municipality for which a particular parking authority is created. "The county" shall mean the particular county for which a particular parking authority is created.
(c) "Governing body" shall mean in the case of a municipality the commission, council, board, or body, by whatever name it may be known, having charge of the finances of the municipality, and in the case of a county the board of 1[chosen freeholders] county commissioners1.
(d) "Clerk" shall mean the clerk of the municipality or the clerk of the board of 1[chosen freeholders of the county] county commissioners1, as the case may be, or the officer charged with the duties customarily imposed on [such] a clerk.
(e) "Area of operation" in the case of a parking authority of a municipality, shall mean the area of [such] the municipality, and in the case of a parking authority of a county, shall mean the area of each municipality in the county: (1) the governing body of which by ordinance[,] has consented to inclusion of the territory of the municipality within [such] the area of operation[,] ; and (2) for which no parking authority was created prior to [such] the consent or for which the parking authority previously created shall have ceased to exist prior to [such] the consent.
(f) "Federal agency" shall mean and include the United States of America, the President of the United States of America, and any department or corporation, agency or instrumentality heretofore or hereafter created, designated or established by the United States of America.
(g) "Public body" shall mean the State, or any county, city, town, township, borough, village, school district, authority, or any other political subdivision of the State.
(h) "Bonds" shall mean any bonds, notes, interim certificates, debentures, or other obligations issued by an authority pursuant to [this act] P.L.1948, c.198 (C.40:11A-1 et seq.).
(i) "Construct" and "construction" shall mean and include acts of planning, designing, construction, reconstruction, replacement, enlargement, improvement, and betterment, also demolition or removal of buildings or structures on land acquired, held, leased, or used for or with respect to a project.
(j) "Person" shall mean any person, association, corporation, nation, State, or any agency or subdivision thereof, other than a county or municipality of this State or a parking authority.
(k) "Project" or "parking project" shall mean any area or place, garage, building, or other improvement or structure for the parking or storage of motor or other vehicles including, without limiting the foregoing, all real and personal property, approaches, meters, mechanical equipment, appurtenances, and facilities either on, above, or under the ground necessary or useful and convenient for or in connection with [such] parking or storage, together with [such] additional structures, buildings, space, or accommodations as may be provided in accordance with paragraph (5) of section 6 [hereof] of P.L.1948, c.198 1[(C.40:11A-1 et seq.)] (C.40:11A-6)1.
(l) "Approach" shall mean any driveway, road, or other structure or area necessary or useful or convenient for access to a project from a public street, road, or highway.
(m) "Online parking payment service" shall mean a public-facing Internet website, Internet web application, or computer or mobile application that allows a user to submit payment for parking a motor vehicle at a publicly available parking project.
(n) "User" means an individual who uses an online parking payment service.
(cf: P.L.1958, c.22, s.1)]2
2[3. Section 6 of P.L.1948, c.198 (C.40:11A-6) is amended to read as follows:
(1) Every parking authority shall constitute a public body corporate and politic and a political subdivision of the State with the same territorial boundaries as the boundaries of the municipality or county creating the authority, exercising public and essential governmental functions, and having all the powers necessary or convenient to carry out and effectuate its corporate purposes and the purposes and provisions of [this act] P.L.1948, c.198 (C.40:11A-1 et seq.).
(2) The purposes of every parking authority shall be the construction, provision, or operation of [offstreet] off-street parking projects within its area of operation and, subject to the provisions of R.S.39:4-202, shall include, to the extent authorized by the governing body of the municipality, the management and operation of [onstreet] on-street and other parking meters and related facilities and enforcement of the applicable law, ordinances, and regulations as to the parking of vehicles in [such] the municipality, and the consequent promotion of free movement of traffic and relief of traffic congestion on the streets of [said] the area or municipality, and improvement of conditions affecting the public safety and welfare therein.
(3) Every parking authority is hereby authorized to plan, design, construct, reconstruct, enlarge, improve, manage, maintain, repair, operate, and use [such] the parking project or projects as in the opinion of the authority will provide an effective and satisfactory method for promoting the purposes of the authority.
(4) Every parking authority shall have perpetual succession and have the following powers in addition to any others herein granted:
(a) [To] to sue and be sued; to have a seal and to alter the same at pleasure; to make and execute contracts and other instruments necessary or convenient to the exercise of the powers of the authority; and to make and from time to time amend and repeal bylaws, rules and regulations, not inconsistent with [this act] P.L.1948, c.198 (C.40:11A-1 et seq.), to carry into effect the powers and purposes of the authority[.] ;
(b) [To] to conduct research respecting parking and the possibility or necessity of fulfillment of public needs in relation thereto [.] ;
(c) [To] to acquire by gift, purchase, lease, devise, or otherwise and hold and use, and to construct, improve, maintain, operate, own, manage, or lease either in a capacity of lessor or lessee parking projects and any land, franchise, property, real, personal or mixed, tangible or intangible, or any interest therein, meters, equipment, or facilities to be devoted to the parking or storage of vehicles of any kind or which in the opinion of the authority are necessary or useful and convenient in connection therewith or with the promotion of free movement of traffic, subject to the provisions of R.S.39:4-202[.] ;
(d) [Subject] subject to the provisions of paragraph 5 of this section, to lease as lessor any real property, parking project, or portion or portions of parking projects for any business, commercial, or other use to any person for [such] consideration and for [such] a period or periods of time and upon [such other] terms and conditions as it may fix and agree upon. Any [such] lease may be upon condition that the lessee shall or may construct or provide any building or buildings or other facilities on [such] real property, parking project or projects, or portions thereof, including space for business, commercial, or other uses, all upon [such] terms and conditions as may be agreed upon[.] ;
(e) [To] to sell, transfer, and dispose of any property or interest therein at any time acquired by it upon [such] terms and conditions as it may determine, with or without public bidding[.] ;
(f) [To] to fix, alter, charge, and collect rents, rates, and other charges at reasonable rates to be determined exclusively by it, for the use of the facilities and projects of the authority and for all services sold, furnished, or supplied directly or indirectly by the authority through [said] its facilities and projects, which shall, together with any grants, receipts, contributions, or income from other sources, be sufficient to provide for the payment of the expenses of the authority, repair, maintenance, and operation of its facilities and projects, and payment of the principal of and interest on, and any premiums upon the redemption of, its bonds and other obligations, and to fulfill the terms and provisions of any agreements made with the purchasers or holders of any [such] bonds or other obligations[.] ;
(g) [To] to invest any funds held in reserve or sinking funds, or any funds not required for immediate disbursement, in property or securities in which savings banks may legally invest funds subject to their control[.] ;
(h) [To] to borrow money and accept grants from and to enter into contracts, leases, or other transactions with the State of New Jersey, any Federal agency, any person, or any municipality, county, or other public body[.] ;
(i) [To] to mortgage, pledge, hypothecate, or otherwise encumber all or any of its property or assets then existing or thereafter acquired or coming into existence, including real and personal property donated to it by a municipality or county[.] ;
(j) [To] to enter into contracts with the State of New Jersey or any municipality, county, or governmental agency for the use of any project of the authority[.] ;
(k) [To] to do and perform any acts and things authorized by [this act] P.L.1948, c.198 (C.40:11A-1 et seq.) under, through, or by means of its own officers, agents, and employees, or by contract with any person[.] ;
(l) [To] to enter into and perform any and all contracts, execute any and all instruments, and do and perform any and all acts and things necessary or useful and convenient for the purposes of the authority or to carry out any of the powers expressly granted to it by [this act] P.L.1948, c.198 (C.40:11A-1 et seq.) or any other acts subject to [P.L.1971, c. 198] the "Local Public Contracts [Law"] Law," P.L.1971, c.198 (C.40A:11-1 et seq.) ; and
(m) to contract with an online parking payment service provider, provided that the contract stipulate that the service provider shall not charge a parking fee to a user during a time period when parking is prohibited 1or is free1 at a parking project.
(5) No parking authority shall engage directly in the sale of gasoline or accessories for, or in the repair or other servicing of, automobiles and other motor vehicles except in emergency, or shall engage directly in the sale of any commodity of trade or commerce, but any authority may include in any parking project, and provide and lease as lessor, structures, buildings, space, or accommodations (whether constructed by the authority or by a lessee) for any business, commercial or other use, including the sale of gasoline or accessories for, or the repair or other servicing of, automobiles and other motor vehicles, if, in the opinion of the authority, [such] the inclusion, provision, and proposed leasing is necessary to assist in defraying the expenses of the authority and make possible the operation of the parking facilities of [such] the project at reasonable rates and will increase the facilities for [offstreet] off-street parking [which] that can be feasibly included, financed, constructed, and operated as part of [such] a project.
(cf: P.L.1975, c. 96, s.1)]2
21. Section 2 of P.L.1971, c.198 (C.40A:11-2) is amended to read as follows:
2. As used herein the following words have the following definitions, unless the context otherwise indicates:
(1) "Contracting unit" means:
(a) Any county; or
(b) Any municipality; or
(c) Any board, commission, committee, authority or agency, which is not a State board, commission, committee, authority, except as provided pursuant to P.L.2013, c.4, or agency, and which has administrative jurisdiction over any district other than a school district, project, or facility, included or operating in whole or in part, within the territorial boundaries of any county or municipality which exercises functions which are appropriate for the exercise by one or more units of local government, including functions exercised in relation to the administration and oversight of a tourism district located in a municipality in which authorized casino gaming occurs, and which has statutory power to make purchases and enter into contracts awarded by a contracting agent for the provision or performance of goods or services.
The term shall not include a private firm that has entered into a contract with a public entity for the provision of water supply services pursuant to P.L.1995, c.101 (C.58:26-19 et al.).
"Contracting unit" shall not include a private firm or public authority that has entered into a contract with a public entity for the provision of wastewater treatment services pursuant to P.L.1995, c.216 (C.58:27-19 et al.).
"Contracting unit" shall not include a duly incorporated nonprofit association that has entered into a contract with the governing body of a city of the first class for the provision of water supply services or wastewater treatment services pursuant to section 2 of P.L.2002, c.47 (C.40A:11-5.1).
"Contracting unit" shall not include an entity that has entered into a contract for management and operation services with a local hospital authority established pursuant to P.L.2006, c.46 (C.30:9-23.15 et al.).
(2) "Governing body" means:
(a) The governing body of the county, when the purchase is to be made or the contract or agreement is to be entered into by, or on behalf of, a county; or
(b) The governing body of the municipality, when the purchase is to be made or the contract or agreement is to be entered into by, or on behalf of, a municipality; or
(c) Any board, commission, committee, authority or agency of the character described in subsection (1) (c) of this section.
(3) "Contracting agent" means the governing body of a contracting unit, or appointed membership of a State authority authorized to enter into a cooperative purchasing agreement pursuant to P.L.2013, c.4, or its authorized designee, which has the power to prepare the advertisements, to advertise for and receive bids and, as permitted by [this act] P.L.1971, c.198 (C.40A:11-1 et seq.), to make awards for the contracting unit in connection with purchases, contracts or agreements.
(4) "Purchase" means a transaction, for a valuable consideration, creating or acquiring an interest in goods, services and property, except real property or any interest therein.
(5) (Deleted by amendment, P.L.1999, c.440 [.])
(6) "Professional services" means services rendered or performed by a person authorized by law to practice a recognized profession, whose practice is regulated by law, and the performance of which services requires knowledge of an advanced type in a field of learning acquired by a prolonged formal course of specialized instruction and study as distinguished from general academic instruction or apprenticeship and training. Professional services may also mean services rendered in the provision or performance of goods or services that are original and creative in character in a recognized field of artistic endeavor.
(7) "Extraordinary unspecifiable services" means services which are specialized and qualitative in nature requiring expertise, extensive training and proven reputation in the field of endeavor.
(8) (Deleted by amendment, P.L.1999, c.440 [.])
(9) "Work" includes services and any other activity of a tangible or intangible nature performed or assumed pursuant to a contract or agreement with a contracting unit.
(10) "Homemaker--home health services" means at home personal care and home management provided to an individual or members of the individual's family who reside with the individual, or both, necessitated by the individual's illness or incapacity. "Homemaker--home health services" includes, but is not limited to, the services of a trained homemaker.
(11) "Recyclable material" means those materials which would otherwise become municipal solid waste, and which may be collected, separated or processed and returned to the economic mainstream in the form of raw materials or products.
(12) "Recycling" means any process by which materials which would otherwise become solid waste are collected, separated or processed and returned to the economic mainstream in the form of raw materials or products.
(13) "Marketing" means the sale, disposition, assignment, or placement of designated recyclable materials with, or the granting of a concession to, a reseller, processor, materials recovery facility, or end-user of recyclable material, in accordance with a district solid waste management plan adopted pursuant to P.L.1970, c.39 (C.13:1E-1 et seq.) and shall not include the collection of such recyclable material when collected through a system of routes by local government unit employees or under a contract administered by a local government unit.
(14) "Municipal solid waste" means, as appropriate to the circumstances, all residential, commercial and institutional solid waste generated within the boundaries of a municipality; or the formal collection of such solid wastes or recyclable material in any combination thereof when collected through a system of routes by local government unit employees or under a contract administered by a local government unit.
(15) "Distribution" (when used in relation to electricity) means the process of conveying electricity from a contracting unit that is a generator of electricity or a wholesale purchaser of electricity to retail customers or other end users of electricity.
(16) "Transmission" (when used in relation to electricity) means the conveyance of electricity from its point of generation to a contracting unit that purchases it on a wholesale basis for resale.
(17) "Disposition" means the transportation, placement, reuse, sale, donation, transfer or temporary storage of recyclable materials for all possible uses except for disposal as municipal solid waste.
(18) "Cooperative marketing" means the joint marketing by two or more contracting units of the source separated recyclable materials designated in a district recycling plan required pursuant to section 3 of P.L.1987, c.102 (C.13:1E-99.13) pursuant to a written cooperative agreement entered into by the participating contracting units thereof.
(19) "Aggregate" means the sums expended or to be expended for the provision or performance of any goods or services in connection with the same immediate purpose or task, or the furnishing of similar goods or services, during the same contract year through a contract awarded by a contracting agent.
(20) "Bid threshold" means the dollar amount set in section 3 of P.L.1971, c.198 (C.40A:11-3), above which a contracting unit shall advertise for and receive sealed bids in accordance with procedures set forth in P.L.1999, c.440 (C.40A:11-4.1 et al.).
(21) "Contract" means any agreement, including but not limited to a purchase order or a formal agreement, which is a legally binding relationship enforceable by law, between a vendor who agrees to provide or perform goods or services and a contracting unit which agrees to compensate a vendor, as defined by and subject to the terms and conditions of the agreement. A contract also may include an arrangement whereby a vendor compensates a contracting unit for the vendor's right to perform a service, such as, but not limited to, operating a concession.
(22) "Contract year" means the period of 12 consecutive months following the award of a contract.
(23) "Competitive contracting" means the method described in sections 1 through 5 of P.L.1999, c.440 (C.40A:11-4.1 [thru] through 40A:11-4.5) of contracting for specialized goods and services in which formal proposals are solicited from vendors; formal proposals are evaluated by the purchasing agent or counsel or administrator; and the governing body awards a contract to a vendor or vendors from among the formal proposals received.
(24) "Goods and services" or "goods or services" means any work, labor, commodities, equipment, materials, or supplies of any tangible or intangible nature, except real property or any interest therein, provided or performed through a contract awarded by a contracting agent, including goods and property subject to N.J.S.12A:2-101 et seq.
(25) "Library and educational goods and services" means textbooks, copyrighted materials, student produced publications and services incidental thereto, including but not limited to books, periodicals, newspapers, documents, pamphlets, photographs, reproductions, microfilms, pictorial or graphic works, musical scores, maps, charts, globes, sound recordings, slides, films, filmstrips, video and magnetic tapes, other printed or published matter and audiovisual and other materials of a similar nature, necessary binding or rebinding of library materials, and specialized computer software used as a supplement or in lieu of textbooks or reference material.
(26) "Lowest price" means the least possible amount that meets all requirements of the request of a contracting agent.
(27) "Lowest responsible bidder or vendor" means the bidder or vendor: (a) whose response to a request for bids offers the lowest price and is responsive; and (b) who is responsible.
(28) "Official newspaper" means any newspaper designated by the contracting unit pursuant to R.S.35:1-1 et seq.
(29) "Purchase order" means a document issued by the contracting agent authorizing a purchase transaction with a vendor to provide or perform goods or services to the contracting unit, which, when fulfilled in accordance with the terms and conditions of a request of a contracting agent and other provisions and procedures that may be established by the contracting unit, will result in payment by the contracting unit.
(30) "Purchasing agent" means the individual duly assigned the authority, responsibility, and accountability for the purchasing activity of the contracting unit, and who has such duties as are defined by an authority appropriate to the form and structure of the contracting unit, pursuant to P.L.1971, c.198 (C.40A:11-1 et seq.) and who possesses a qualified purchasing agent certificate.
(31) "Quotation" means the response to a formal or informal request made by a contracting agent by a vendor for provision or performance of goods or services, when the aggregate cost is less than the bid threshold. Quotations may be in writing, or taken verbally if a record is kept by the contracting agent.
(32) "Responsible" means able to complete the contract in accordance with its requirements, including but not limited to requirements pertaining to experience, moral integrity, operating capacity, financial capacity, credit, and workforce, equipment, and facilities availability.
(33) "Responsive" means conforming in all material respects to the terms and conditions, specifications, legal requirements, and other provisions of the request.
(34) "Public works" means building, altering, repairing, improving or demolishing any public structure or facility constructed or acquired by a contracting unit to house local government functions or provide water, waste disposal, power, transportation, and other public infrastructures.
(35) "Director" means the Director of the Division of Local Government Services in the Department of Community Affairs.
(36) "Administrator" means a municipal administrator appointed pursuant to N.J.S.40A:9-136 and N.J.S.40A:9-137; a business administrator, a municipal manager or a municipal administrator appointed pursuant to the "Optional Municipal Charter Law," P.L.1950, c.210 (C.40:69A-1 et seq.); a municipal manager appointed pursuant to "the municipal manager form of government law," R.S.40:79-1 et seq.; or the person holding responsibility for the overall operations of an authority that falls under the "Local Authorities Fiscal Control Law," P.L.1983, c.313 (C.40A:5A-1 et seq.).
(37) "Concession" means the granting of a license or right to act for or on behalf of the contracting unit, or to provide a service requiring the approval or endorsement of the contracting unit, and which may or may not involve a payment or exchange, or provision of services by or to the contracting unit.
(38) "Index rate" means the rate of annual percentage increase, rounded to the nearest half-percent, in the Implicit Price Deflator for State and Local Government Purchases of Goods and Services, computed and published quarterly by the United States Department of Commerce, Bureau of Economic Analysis.
(39) "Proprietary" means goods or services of a specialized nature, that may be made or marketed by a person or persons having the exclusive right to make or sell them, when the need for such goods or services has been certified in writing by the governing body of the contracting unit to be necessary for the conduct of its affairs.
(40) "Service or services" means the performance of work, or the furnishing of labor, time, or effort, or any combination thereof, not involving or connected to the delivery or ownership of a specified end product or goods or a manufacturing process. Service or services may also include an arrangement in which a vendor compensates the contracting unit for the vendor's right to operate a concession.
(41) "Qualified purchasing agent certificate" means a certificate granted by the director pursuant to section 9 of P.L.1971, c.198 (C.40A:11-9).
(42) "Mistake" means, for a public works project, a clerical error that is an unintentional and substantial computational error or an unintentional omission of a substantial quantity of labor, material, or both, from the final bid computation.
(43) "Parking project" shall have the same meaning as provided in section 3 of P.L.1948, c.198 (C.40:11A-3).
(44) "Online parking payment service" means a public-facing Internet website, Internet web application, or computer or mobile application that allows a user to submit payment for parking a motor vehicle at a publicly available parking project.2
(cf: P.L.2016, c.55, s.8)
22. Section 13 of P.L.1971, c.198 (C.40A:11-13) is amended to read as follows:
13. Specifications. Any specifications for the provision or performance of goods or services under [this act] P.L.1971, c.198 (C.40A:11-1 et seq.) shall be drafted in a manner to encourage free, open and competitive bidding. In particular, no specifications under [this act] P.L.1971, c.198 (C.40A:11-1 et seq.) may:
(a) Require any standard, restriction, condition or limitation not directly related to the purpose, function or activity for which the contract is awarded; or
(b) Require that any bidder be a resident of, or that the bidder's place of business be located in, the county or municipality in which the contract will be awarded or performed, unless the physical proximity of the bidder is requisite to the efficient and economical performance of the contract; except that no specification for a contract for the collection and disposal of municipal solid waste shall require any bidder to be a resident of, or that the bidder's place of business be located in, the county or municipality in which the contract will be performed; or
(c) Discriminate on the basis of race, religion, sex, national origin, creed, color, ancestry, age, marital status, affectional or sexual orientation, familial status, liability for service in the Armed Forces of the United States, or nationality; or
(d) Require, with regard to any contract, the furnishing of any "brand name," but may in all cases require "brand name or equivalent," except that if the goods or services to be provided or performed are proprietary, such goods or services may be purchased by stipulating the proprietary goods or services in the bid specification in any case in which the resolution authorizing the contract so indicates, and the special need for such proprietary goods or services is directly related to the performance, completion or undertaking of the purpose for which the contract is awarded; or
(e) Fail to include any option for renewal, extension, or release which the contracting unit may intend to exercise or require; or any terms and conditions necessary for the performance of any extra work; or fail to disclose any matter necessary to the substantial performance of the contract; or
(f) Require that any bidder submit a financial statement if either a guarantee, by certified check, cashier's check or bid bond, or a surety company certificate is also required to be furnished by the bidder, unless any law or regulation of the United States imposes a condition upon the awarding of a monetary grant to be used for the purchase, contract or agreement, which condition requires that a financial statement be submitted.
(g) As used in this subsection:
"asphalt price index" means the asphalt price index as determined and published by the New Jersey Department of Transportation;
"basic asphalt price index" means the asphalt price index for the month preceding the month in which the bids are opened;
"department" means the New Jersey Department of Transportation;
"fuel price index" means the fuel price index as determined and published by the New Jersey Department of Transportation; and
"pay item" means a specifically described item of work for which the bidder provides a per unit or lump sum price in a bid specification determined and published by the New Jersey Department of Transportation.
In addition to the requirements of paragraphs (a) through (f) of this section, any bid specification for the provision or performance of goods or services under P.L.1971, c.198 (C.40A:11-1 et seq.) that includes the purchase or use of 1,000 or more tons of hot mix asphalt shall include a pay item for an asphalt price adjustment reflecting changes in the cost of asphalt cement. The pay item for asphalt price adjustment shall apply to each ton of hot mix asphalt purchased or used by the contracting unit. Any bid specification prepared pursuant to P.L.1971, c.198 (C.40A:11-1 et seq.) that includes the purchase or use of less than 1,000 tons of hot mix asphalt shall include a pay item for an asphalt price adjustment applicable to any quantity of hot mix asphalt exceeding 1,000 tons that may be purchased or used in the work in the event that performance of the work, including change orders, requires more than 1,000 tons of hot mix asphalt. As set forth in section 7 of P.L.1971, c.198 (C.40A:11-7), no contract shall be divided to disaggregate the quantity of hot mix asphalt or equivalent asphalt cement-based paving product to be purchased or used for the purpose of avoiding compliance with this paragraph.
The asphalt price adjustment shall be calculated in accordance with the formula and relevant instructions published in the most recent edition of the "New Jersey Department of Transportation Standard Specifications for Road and Bridge Construction." All invoices for payment shall be accompanied by the calculation of any asphalt price adjustment and a showing of the current month's asphalt price index and the basic asphalt price index.
Every bid specification prepared pursuant to P.L.1971, c.198 (C.40A:11-1 et seq.) shall be eligible for a fuel price adjustment. Fuel that is eligible for a fuel price adjustment shall be the sum of the quantities of the eligible pay items in the contract multiplied by the fuel usage factors as determined by the department. The types of fuel furnished shall be at the discretion of the contractor.
The fuel requirement for items not determined by the department to be eligible, and for pay items in the bid specifications calling for less than 500 gallons of fuel, shall not be eligible for a fuel price adjustment. If more than one pay item has the same nomenclature but with different thicknesses, depths, or types, each individual pay item must require 500 gallons or more of fuel to be eligible for a fuel price adjustment. If more than one pay item has the same nomenclature, similar pay items shall be combined and the combination must require 500 gallons or more of fuel to be eligible for the fuel price adjustment.
Fuel price index adjustments shall not be made in those months for which the monthly fuel price index has changed by less than five percent from the basic fuel price index.
Any specification which knowingly excludes prospective bidders by reason of the impossibility of performance, bidding or qualification by any but one bidder, except as provided herein, shall be null and void and of no effect and shall be readvertised for receipt of new bids, and the original contract shall be set aside by the governing body.
Any specification for a contract for the collection and disposal of municipal solid waste shall conform to the uniform bid specifications for municipal solid waste collection contracts established pursuant to section 22 of P.L.1991, c.381 (C.48:13A-7.22).
Any specification for a contract for an online parking payment service shall stipulate that parking fees shall not be charged to a user of the online parking payment service during a time period when parking is prohibited or is free at a parking project.
Any specification may include an item for the cost, which shall be paid by the contractor, of creating a file to maintain the notices of the delivery of labor or materials required by N.J.S.2A:44-128.
Any prospective bidder who wishes to challenge a bid specification shall file such challenges in writing with the contracting agent no less than three business days prior to the opening of the bids. Challenges filed after that time shall be considered void and having no impact on the contracting unit or the award of a contract.2
(cf: P.L.2015, c.201, s.1)
23. (New section) Any contract entered into by a municipality, or a parking authority, as that term is defined in section 3 of P.L.1948, c.198 (C.40:11A-3), for an online parking payment service shall stipulate that parking fees shall not be charged to a user of the service during a time period when parking is prohibited or is free at a parking project.2
4. This act shall take effect immediately 1and shall apply to all contracts and agreements entered into, renewed, modified, or amended on or after the date this act takes effect1.