REMEDIAL ACTION AGREEMENT BETWEEN THE CITY OF VERNON
DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL AND [PROPONENT’S NAME] FOR LOCAL REGULATORY OVERSIGHT The City of Vernon, a California charter City and California municipal corporation (City), is considered by the State to be technically competent to provide remedial oversight under California Health and Safety Code sections 25299.50.6, 101480, 101483, 101485, and 101487 as amended by AB 304, and [RESPONSIBLE PARTY] (Proponent), a [Insert State Incorporated In] corporation enter into this Remedial Action Agreement (Agreement) and agree as follows:
1. Site. This Agreement applies to the Site located at [physical address], in the City of Vernon in Los Angeles County, California [Zip Code], identified by Los Angeles County Assessor's Parcel Number(s) [Insert APN No(s).], and any off-site area to which hazardous substances have or may have migrated from the Site. [If the Site occupies a portion of the APN(s), add the following sentence: “The Site occupies a portion of the Assessor Parcel Number(s).”] The Site is approximately [X] acres in size and is bordered by [list adjacent roadways or other known physical markers]. [Describe current and historic land uses of the Site and uses bordering the Site.] A Site location map and a Site diagram are attached as Exhibits A and B.
2. Jurisdiction. This Agreement is entered into by the City and Proponent pursuant to California Health and Safety Code sections 101480 through 101490, as amended by AB 304. As indicated on your application for oversight, Proponent has requested to be the Responsible Party1 for the remedial action.
3. Purpose. The purpose of this Agreement is for the Proponent to investigate, remediate, and/or evaluate a release, a threatened release, or a potential release of any hazardous substance at or from the Site under the oversight of the City. The purpose of this Agreement is also for the City to obtain reimbursement from Proponent for the City's oversight costs incurred pursuant to this Agreement.
4. Ownership and Notification.
4.1 The Site is owned by [Name of Site Owner or Owners]. [If the Site consists of more than one parcel, identify the owners of each parcel.]
4.2 Prior to the City providing oversight or review or comment on any document, Proponent shall provide the City with all of the following: (a) proof of the identity of all current record owners of fee title to the Site and their mailing addresses; (b) written evidence that the owners of record have been sent a notice that describes the actions completed or proposed by Proponent; and (c) an acknowledgment of the receipt of the notice required in subpart (b) from the property owners or proof that Proponent has made reasonable efforts to deliver the notice to the property owner and was 1 Responsible Party as defined in Health and Safety Code Section 101480. [Insert Proponent Name] Remedial Action Agreement
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unable to do so. [This information is required prior to executing the Agreement]
4.3 Proponent shall notify the City of any changes in ownership of the Site subsequent to the Effective Date of this Agreement and provide written evidence that Proponent notified the new owner(s) of record of the actions completed or proposed by Proponent under this Agreement.
5. Affect Area and Substances Found at the Site. Based on the information available to the City and Proponent, the Site is or may be contaminated with hazardous substances, including [Describe Area Impacted and List Contaminants].
6. Scope of Work and City Oversight. The City shall review and provide Proponent with written comments on all Proponent’s deliverables prepared in support of this Agreement, and other documents applicable to the project work. The City shall provide oversight of field activities, including sampling and remedial activities, as appropriate. Proponent agrees to perform all the work required by this Agreement. Proponent shall perform the work in accordance with applicable local, state and federal statutes, regulations, ordinances, rules and guidance documents, in particular, California Health and Safety Code section 101480 et seq., as amended.
7. Additional Activities. The City and Proponent may amend this Agreement to include additional activities in accordance with Paragraph 18 of this Agreement.
If the City expects to incur additional oversight costs for these additional activities, it will provide an estimate of the additional oversight costs to the Proponent.
8. Endangerment During Implementation.
8.1 Proponent shall notify the City’s Director of Health and Environmental Control or their designee immediately upon learning of any condition that may pose an immediate threat to public health or safety or the environment. Within seven (7) days of the onset of such a condition, the Proponent shall furnish a report to the City, signed by the Proponent’s Project Manager, setting forth the conditions and events that occurred and the measures taken in response thereto.
8.2 In the event the City determines that any activity (whether or not pursued in compliance with this Agreement) may pose an imminent or substantial endangerment to the health or safety of people on the Site or in the surrounding area or to the environment, the City may order Proponent to conduct additional activities in accordance with Paragraph 7 of this Agreement or to stop further implementation of this Agreement for such period of time as may be needed to abate the endangerment. The City may request that Proponent implement interim measures to address any immediate threat or imminent or substantial endangerment.
9. Access. Proponent shall provide, and/or obtain access to the Site and [Insert Proponent Name] Remedial Action Agreement
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take all reasonable efforts to obtain access to offsite areas to which access is necessary to implement the Agreement. Such access shall be provided to the City's employees, contractors, and consultants at all reasonable times. Nothing in this paragraph is intended or shall be construed to limit in any way the right of entry or inspection that the City or any other agency may otherwise have by operation of law.
10. Sampling, Data and Document Availability. When requested by the City, Proponent shall make available for the City’s inspection, and shall provide access to, all data and information concerning contamination at or from the Site, including technical records and contractual documents, sampling and monitoring information and photographs and maps, whether or not such data and information was developed pursuant to this Agreement. For all final reports, Proponent shall submit electronically, via the State Water Resources Control Board’s GeoTracker electronic data management system (GeoTracker) in conformance with data dictionaries found in Title 27, Division 3, Subdivision 2 (Monitoring and Release Information) and specifications contained in the State Water Resources Control Board EDF Guidelines and Restrictions (Version 1.2i) and Survey XYZ Guidelines and Restrictions (Version 6), one hard (paper) copy and/or one electronic copy with all applicable signatures and certification stamps as a text-readable Portable Document Formatted (pdf) file compatible with Adobe Acrobat or a formatted file compatible with Microsoft Word. The City, upon entering this Remedial Action Agreement for the site, shall ensure the establishment of a Global Identification Number (Global ID) in GeoTracker and shall upload a copy of the agreement under the Proponent’s Global ID.
11. Photographs and Drawings. Upon request by the City, Proponent shall provide the City with photographs Proponent has in its possession of the Site and activities at the Site, as well as drawings Proponent has in its possession in connection with redevelopment plans for the Site. Proponent shall allow the City to take photographs of the Site, including activities at the Site, whenever the City accesses the Site pursuant to Paragraph 9. Proponent grants the City the right to distribute, transmit, publish, or copy, in any medium, either in whole or in part, the photographs or drawings the City obtains pursuant to this section for any use, including, but not limited to, project documentation, public outreach, web and social media content, and marketing materials. This section does not apply to drawings that contain confidential business information.
12. Record Preservation. The City requires that applicable case records, agency correspondence, and ESI data are uploaded and maintained in GeoTracker.
The City’s Director of Health and Environmental Control or their designee, shall direct the Proponent to submit all remedial action documents to GeoTracker under the Global ID established for the waste release site. These documents will be made publicly available. Proponent shall retain, during the implementation of this Agreement and for a minimum of six years after its termination, all data, reports, and other documents that relate to the performance of this Agreement. If the City requests that some or all of these documents be preserved for a longer period of time, Proponent shall either [Insert Proponent Name] Remedial Action Agreement
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comply with the request, deliver the documents to the City, or permit the City to copy the documents at Proponent’s expense prior to destruction. At least thirty (30) days before certifying that the remedial actions were accomplished, the City shall conduct a public notification process that shall include, at a minimum (i) notifying the department, the regional water quality control board, agencies with authority to issue building permits for land affected by the waste release, owners and occupants of the property impacted by the waste release, and the owners and occupants of all parcels adjacent to the waste release site, and (ii) posting the public notice on GeoTracker under the Global ID established for the waste release site.
13. Notification of Field Activities. Proponent shall inform the City at least seven (7) days in advance of all field activities pursuant to this Agreement and shall allow the City and its authorized representatives to take duplicates of any samples collected by Proponent pursuant to this Agreement.
14. Project Personnel. Within fourteen (14) days of the effective date of this Agreement, the Director of Health and Environmental Control or their Deputy shall designate a Local Officer on behalf of the City and Proponent shall designate a Project Manager and both shall notify each other in writing of the individual selected. The Proponent's Project Manager shall have the technical expertise in project management, regulatory compliance, and hazardous substance site investigation and remediation sufficient to fulfill his or her responsibilities. Each individual shall be responsible for overseeing the implementation of this Agreement and for designating a person to act in his/her absence. All communications between the City and Proponent, and all notices, documents and correspondence concerning the activities performed pursuant to this Agreement shall be directed through the Local Officer and Project Manager. Each party may change its respective Local Officer or Project Manager with at least seven (7) days prior written notice.
15. Proponent’s Consultant and Contractor. All engineering and geological work performed pursuant to this Agreement shall be under the direction and supervision of appropriately licensed professionals, a registered Professional Civil Engineer and/or Professional Geologist licensed in California, with expertise in hazardous substance site investigation and remediation. Proponent's contractors, consultants, and other technical staff shall have the technical expertise sufficient to fulfill his or her responsibilities.
Within fourteen (14) days of the effective date of this Agreement, the Proponent and/or Project Manager shall notify the City in writing of the name, title, and qualifications of the registered Professional Civil Engineer and/or Professional Geologist and of any contractors or consultants and their personnel to be used in carrying out the work under this Agreement in conformance with applicable state law, including but not limited to, Business and Professions Code sections 6735 and 7835.
16. City Review and Approval. All work performed pursuant to this Agreement is subject to the City’s review and approval. If the City determines that any [Insert Proponent Name] Remedial Action Agreement
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report, plan, schedule or other document submitted for approval pursuant to this Agreement fails to comply with this Agreement or fails to protect public health or safety or the environment, the City may (a) return comments to Proponent with recommended changes and a date by which the Proponent must submit a revised document incorporating or addressing the recommended changes; or (b) modify the document in consultation with Proponent and approve the document as modified. All City approvals and decisions made regarding submittals and notifications will be communicated to Proponent in writing by the City's Director of Health and Environmental Control or their designee. No informal advice, guidance, suggestions or comments by the City regarding reports, plans, specifications, schedules or any other writings by the Proponent shall be construed to relieve Proponent of the obligation to obtain such written approvals. One reason that a City may, after giving a responsible party at least thirty (30) days’ notice, withdraw from this Remedial Action Agreement at any time is if the responsible party is not in compliance with the Agreement.
17. Payment.
17.1 As allowed by Health and Safety Code section 101490, proponent is required to pay (a) all costs incurred by the City in association with preparation of this Agreement, and for oversight activities, including review of documents, conducted prior to the effective date of this Agreement; and (b) all costs incurred by the City in providing oversight pursuant to this Agreement, including review of the documents and activities described in Exhibit C and associated documents, and oversight of field activities. Costs incurred include interest on unpaid amounts that are invoiced and outstanding more than sixty (60) days from the date of the invoice.
17.2 An estimate of the City's oversight costs is attached as Exhibit D.
It is understood by the parties that Exhibit D is an estimate and cannot be relied upon as the final cost figure. The City may provide an adjusted cost estimate as the work progresses. Prior to adjusting the cost estimate, the City will provide the Proponent with a written notice and a detailed explanation of the change to the cost estimate. The City will invoice the Proponent quarterly at the rate specified in the City’s Fee Schedule.
Proponent agrees to make payment within thirty (30) days of receipt of the City's billing.
Such invoicing will reflect any amounts that have been advanced to the City by the Proponent.
17.3 In anticipation of oversight activities to be conducted, Proponent shall make an advance payment of $[Insert Amount] to the City no later than ten (10) days after this Agreement is fully executed. It is expressly understood and agreed that the City's receipt of the entire advance payment as provided in this paragraph is a condition precedent to the City's obligation to provide oversight, review of, or comment on documents. The City will draw-down from the advance payment, which will be documented in the City’s invoice. When the advance payment is depleted, the City will continue to request payment through the invoice process. [Insert Proponent Name] Remedial Action Agreement
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17.4 All payments made by the Proponent pursuant to this Agreement must be by check. Checks should be payable to the "City of Vernon" and must include on their face the GeoTracker Global ID and the docket number of this Agreement.
Checks should be sent to:
City of Vernon
Attn: Finance Department
4305 Santa Fe Avenue
Vernon, CA 90058
A photocopy of the check shall be sent concurrently to the City’s designated Local Officer.
17.5 The City shall retain cost records associated with the work performed under this Agreement as may be required by state law. The City will make all documents that support the City's cost determination available for inspection upon request in accordance with the Public Records Act, Government Code section 6250 et seq.
17.6 In addition to direct costs incurred by the City, the City also bills its indirect costs associated with direct staff costs. Such indirect costs are only applied to the City's direct labor costs and not to the City's contractor costs or the City staff travel costs. The City calculates separate indirect cost rates (salary/benefits and general operating costs) for each of its major programs (Site Mitigation and Restoration, Hazardous Waste Management, and Safer Products and Workplaces Programs). Because the ratio of direct to indirect costs varies among the City’s various programs, the indirect cost rates associated with those programs will also vary.
18. Written Amendments. This Agreement may only be amended in writing by mutual agreement between the City and Proponent. Such amendment shall be effective at such time as all signatories have signed the original or counterparty original of the amendment. The parties may agree to a different effective date.
19. Termination for Convenience.
19.1 Except as otherwise provided in this paragraph, each party to this Agreement reserves the right to unilaterally terminate this Agreement for any reason.
Termination may be accomplished by giving a thirty (30) day advance written notice of the election to terminate this Agreement to the other party. In the event that this Agreement is terminated under Paragraph 19.1, Proponent shall be responsible for City costs through the effective date of termination.
19.2 If, at any time, the Proponent is not in compliance with directives from the City that constitute a portion of this Agreement, the City can, with adequate [Insert Proponent Name] Remedial Action Agreement
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notice, terminate this Agreement. If the Agreement is terminated prior to adequate completion of the remedial action, the case may be referred to the Department of Toxic Substance Control (DTSC) or Regional Water Quality Control Board (RWQCB) for issuance of a State Corrective Action Order, Cleanup and Abatement Order, or other order or enforceable agreement, as appropriate, for further remedial action directives.
19.3 If, upon further characterization, the City determines that the release of waste that is the subject of this Agreement is sufficiently complex, may present such a significant potential hazard to human health or the environment, or may not be in the best interest of the City to continue as lead agency, the case may be referred to the DTSC or RWQCB for further action. In the event this case is referred to and accepted by the DTSC or RWQCB, this Agreement is terminated.
20. Scope of Work. Proponent shall submit a detailed workplan(s) for all tasks to be completed under this Agreement. The workplan(s) shall describe the scope of work, methodology, timeline, and resources needed for each task. The workplan(s) shall be submitted to the City for review and approval no later than ten (10) days prior to the initiation of any work described therein. The Proponent shall not commence any work until the workplan(s) has been reviewed and approved by the City.
21. Calendar of Tasks and Schedules. Upon approval of the Site workplan(s) by the City, the Proponent shall submit a Calendar detailing the tasks to be completed under this Agreement. The Calendar shall be submitted within ten (10) days of the City’s approval and include the proposed schedule for each task. If the Proponent is unable to start the tasks as scheduled, the City must be notified at least five (5) days in advance, and an updated Calendar shall be submitted.
22. Incorporation of Exhibits, Plans and Reports. All exhibits are incorporated into this Agreement by reference. All plans, schedules, and reports that require the City’s approval and are submitted by Proponent pursuant to this Agreement are incorporated in this Agreement upon the City’s approval.
23. Reservation of Rights. The City reserves all of its statutory and regulatory powers, authorities, rights, and remedies under applicable laws to protect public health or the environment, including the right to recover its costs incurred therefor.
Proponent reserves all of its statutory and regulatory rights, defenses, and remedies available to the Proponent under applicable laws.
24. Non-Admission of Liability. By entering into this Agreement, Proponent does not admit to any finding of fact or conclusion of law set forth in this Agreement or any fault or liability under applicable laws.
25. Proponent Liabilities. Nothing in this Agreement shall constitute or be considered a covenant not to sue, release, or satisfaction from liability by the City for [Insert Proponent Name] Remedial Action Agreement
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any condition or claim arising as a result of the Proponent's past, current, or future operations or ownership of the Site.
26. Government Liabilities. The City shall not be liable for any injuries or damages to persons or the Site resulting from acts or omissions by Proponent or by related parties in carrying out activities pursuant to this Agreement, nor shall the City be held as a party to any contract entered into by Proponent or its agents in carrying out the activities pursuant to this Agreement.
27. Indemnification. Proponent shall defend and indemnify the City (including its agents, officials, and employees) against any claims, demands, damages, penalties, or liabilities (herein “claims or liabilities”) arising out of either the contamination of the site or the acts or omissions of either party in the implementation of this Agreement, except to the extent such claims or liabilities arise from the sole negligence or willful misconduct of the City , its agents, officials, or employees. The provisions of this Paragraph 27 shall remain in effect notwithstanding any termination of this Agreement.
28. Third Party Actions. In the event that Proponent is a party to any suit or claim for damages or contribution relating to the Site to which the City is not a party, Proponent shall notify the City in writing within ten (10) days after service of the complaint in the third-party action. Proponent shall pay all costs incurred by the City relating to such third-party actions, including but not limited to responding to subpoenas.
29. California Law. This Agreement shall be governed, performed and interpreted under the laws of the State of California.
30. Severability. If any portion of this Agreement is ultimately determined not to be enforceable, that portion will be severed from the Agreement and the severability shall not affect the enforceability of the remaining provisions of the Agreement.
31. Parties Bound. This Agreement applies to and is binding, jointly and severally, upon Proponent and its agents, receivers, trustees, successors and assignees, and upon the City and any successor agency that may have responsibility for and jurisdiction over the subject matter of this Agreement. Proponent shall ensure that its contractors, subcontractors, and agents receive a copy of this Agreement and comply with this Agreement.
32. Effective Date. The effective date of this Agreement is the date all authorized signatories have signed the original or counterpart original of the Agreement.
Except as otherwise specified, “days” means calendar days.
33. Representative Authority. Each undersigned representative of the party to this Agreement certifies that she or he is fully authorized to enter into the terms and conditions of this Agreement and to execute and legally bind the party to this [Insert Proponent Name] Remedial Action Agreement
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Agreement.
34. Counterparts. This Agreement may be executed and delivered in any number of counterparts, each of which when executed and delivered shall be deemed to be an original, but such counterparts shall together constitute one and the same document. This Agreement and documents related to it may be executed and transmitted by facsimile or pdf copy, which copies shall be deemed to be, and utilized in all respects as, an original. However, Proponent must provide the wet-inked signed original of each counterpart to the City by mail within fourteen (14) calendar days of signing. The City, upon entering this Agreement, shall ensure the establish of a Global ID and public record for the site in GeoTracker and shall upload a copy of the agreement under that global identification number.
Date: Date:
City of Vernon, a California charter City [Proponent’s Name], a [State and California municipal Corporation incorporated in] corporation By: By:
[Insert Name], Director of
Health and Environmental Control Name:
ATTEST: Title:
[Insert Name], City Clerk By:
APPROVED AS TO FORM: Name:
Title:
[Insert Name], City Attorney
[Insert Proponent Name] Remedial Action Agreement
[Month] [Date], [Year]
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LIST OF EXHIBITS TO THE AGREEMENT
EXHIBIT A: SITE LOCATION MAP
EXHIBIT B: SITE DIAGRAM [Must include Site boundaries]
EXHIBIT C: SCOPE OF WORK [Must include detailed workplan(s), methodology, timeline, and resources needed for each task]
EXHIBIT D: COST ESTIMATE
[Insert Proponent Name] Remedial Action Agreement
[Month] [Date], [Year]
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EXHIBIT A
SITE LOCATION MAP
[Insert Proponent Name] Remedial Action Agreement
[Month] [Date], [Year]
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EXHIBIT B
SITE DIAGRAM
[Insert Proponent Name] Remedial Action Agreement
[Month] [Date], [Year]
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EXHIBIT C
SCOPE OF WORK
[Insert Proponent Name] Remedial Action Agreement
[Month] [Date], [Year]
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EXHIBIT D
COSE ESTIMATE