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HomeMy WebLinkAboutMINUTES - 07111995 - C48 To: BOARD OF SUPERVISORS '. ..FROM; Mark Finucane, Health Services Director Costa DATE: June 16, 1995 County SUBJECT: Approve , Agreement #28-561 with the GBF/Pittsburg Landfill Respondents Group SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION I. RECOMMENDED ACTION: Approve and authorize the Chair, Board of Supervisors, to execute on behalf of the County, Agreement #28-561 with the GBF/Pittsburg Landfill Respondents Group '4(Respondents Group) , in the amount of $60, 000, for FY 1994-95 And FY 1995-96, for the GBF Public Participation Project. II. FINANCIAL IMPACT: Approval of this Agreement will result in $60, 000 of funding to the County for the GBF Public Participation Project. No County funds are required. III. REASONS FOR RECOMMENDATIONS/BACKGROUND: The California Environmental Protection Agency, Department of Toxic Substances Control (DTSC) , has issued Remedial Action Order #HSA 87/88-012A, directing certain actions concerning the GBF/Pittsburg Landfill site be undertaken within specific timeframes. The Respondents Group, a group of cooperating responsible parties to the GBF/Pittsburg Landfill site project, was formed to undertake such action. The County's Health Services Department has an ongoing. interest in the effective clean-up of the GBF/Pittsburg Landfill site, as it poses a potential threat to the health of citizens residing in the area. The Department has a long history of working with members of the community through the GBF Task Force, and a previous GBF community relations contract with the DTSC. It has established a solid working relationship with community members through these efforts, and is therefore, the appropriate intermediary for community relations in this project. The Board Chair should sign four copies of the Agreement. Three copies of the Agreement and three certified and sealed copies of this Board Order should be returned to the Contracts and Grants Unit. CONTINUED ON ATTACHMENT: YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S) ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS UNANIMOUS (ABSENT ) I HEREBY CERTIFY THAT THIS IS A TRUE AYES: NOES: AND CORRECT COPY OF AN ACTION TAKEN ABSENT: ABSTAIN: AND ENTERED ON THE MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact: 11endel Brunner, M.D. (313-6712) CC: Health Services (Contracts) ATTESTED Risk Management Phil Bate %, {erk of the Board of Auditor-Controller Suou isots and County Administrator Contractor M362/7-83 BY � DEPUTY 2 ® . c .� AGREEMENT TO CONDUCT PUBLIC PARTICIPATION ACTIVITIES BETWEEN GBF/PITTSBURG LANDFILLS) RESPONDENTS GROUP AND CONTRA COSTA COUNTY HEALTH SERVICES DEPARTMENT THIS AGREEMENT is entered into on the _th day of May, 1995, by and between GBF/PITTSBURG LANDFILLS) RESPONDENTS GROUP ( "Respondents Group" ) and CONTRA COSTA COUNTY for its HEALTH SERVICES DEPARTMENT ( "CCCHSD" ) . WHEREAS, the California Environmental Protection Agency Department of Toxic Substances Control (the "Department" ) has issued. Remedial Action Order (the "Order" ) No. HSA 87/88-012A directing that certain actions concerning the GBF/Pittsburg Landfill(s) (the "Site" ) be undertaken within specific time frames; WHEREAS, the Department has identified numerous potentially responsible parties in the Order; WHEREAS, certain potentially responsible parties desire to comply with the Order and to cooperate among themselves and with the Department, and have entered into an agreement known as the 11544978 -1- GBF/Pittsburg PRP Agreement, which agreement formed Respondents Group to undertake such action; WHEREAS, Respondents Group specifically denies any fault, liability or responsibility under any federal, state or local statute, regulation, ordinance or common law and does not waive any rights it may have to assert any claims against any person or any governmental fund; and WHEREAS, the Memorandum of Understanding between CCCHSD, the Department and Respondents Group, dated September 30, 1993, provides that CCCHSD and Respondents Group may enter into an agreement to conduct public participation activities during the remedial action at the Site. NOW, THEREFORE, in consideration of the covenants, obligations, terms and conditions contained herein, the parties hereby agree as follows: ARTICLE I - *DESCRIPTION OF SERVICES AND DURATION OF AGREEMENT 1. Respondents Group hereby engages CCCHSD and CCCHSD agrees to perform the work and services as described herein for . the fees and upon the terms and conditions specified. In the performance of such work and services, CC_CHSD shall act solely as an independent contractor; and nothing contained in this Agreement shall at any time be so construed as to create a 11544978 -2- relationship of employer and employee, partnership., principal and agent, or joint venture, as between Respondents Group and CCCHSD 2 . The work and services to be performed by CCCHSD shall consist of the tasks set forth in the "Scope of Work for GBF/Pittsburg Landfill Public Participation Activities, " attached hereto as Exhibit A. The tasks shall be performed at the direction of Respondents Group, to the satisfaction of Respondents Group and the Department. 3 . The work and services specified above shall be provided commencing on the date of this Agreement as first written above and shall continue until termination inaccordance with Article VI_-I herein. ARTICLE II - FEES 1 . CCCHSD shall be paid for services rendered and for . reimbursement of out-of-pocket costs expended on a time and materials basis in accordance with the Schedule of Fees and Budget attached as Exhibit ,B to this Agreement. 11544978 -3- 2 . The Schedule of Fees and Budget set forth in Exhibit B contains estimated budgets for each task, and CCCHSD shall not exceed the estimated- budget for any task without written authorization from Respondents Group, nor shall it exceed a total Budget of $60,000 without written authorization. from Respondents Group. ARTICLE III - PAYMENT OF FEES AND COSTS 1. Payments for the work, services and costs described herein shall be made within thirty (30) days of Respondents Group' s receipt of. invoices from CCCHSD. 2 . If Respondents Group objects to all or any portion of an invoice, it shall so notify CCCHSD of the same, stating the reasons for the objection, within thirty ( 30) days of the receipt of the invoice. Respondents Group shall be entitled to withhold payment only with respect to any amountsin dispute. The parties shall immediately negotiate in good faith to settle any disputed portion of an invoice. 3 . Payment of an invoice shall not be evidence of Respondents Group' s final acceptance of such work and services, and payment by Respondents Group shall not affect the rights of Respondents Group to seek a refund of any payments made to CCCHSD under this Agreement. 11544978 -4- r. T • j 4 . Copies of all invoices shall be forwarded to the Acting Chair of Respondents Group, currently Douglas Waltermire at 4585 Pacheco Boulevard, Martinez, CA 94553 . Invoices shall be in the same format as the Schedule of Fees and Budget .set forth in Exhibit B, except that, in addition to columns showing the task hours, hourly rates and task budget, the invoices shall contain columns listing the current and cumulative dollar amounts invoiced for each Budget category. Copies of time sheets and expense receipts, as well as a cover letter containing a description of the work and services performed and invoiced, shall be provided with all invoices. ARTICLE IV - STAFFING/ASSIGNMENT 1. CCCHSD shall provide professional staff suitably qualified to carry out the work and services described herein. Specific staffing positions are as follows: Administration: Wendel Brunner, M.D. , Public Health Director Supervision: Mary Anne Morgan, MPH, Director of Health Education Hazardous Materials Specialist: Paul Andrews Project Coordinator: Suzanne Teran 11544978 -5- t r , CCCHSD shall immediately notify the Respondents Group Chair, in writing, of any changes in CCCHSD personnel or contract consultants providing work hereunder. 2 . Neither this Agreement nor any interest herein or claim hereunder shall be assigned or transferred by either party to this Agreement without prior approval of the other party, . and any purported or attempted assignment or transfer shall be void unless approved by the other party to this Agreement. ARTICLE V - UPDATES, PUBLIC NOTICES, FACT SHEETS, MAILING LISTS AND OTHER PUBLIC PARTICIPATION PRODUCTS; RECORDS 1. This Agreement requires that CCCHSD prepare and submit certain draft and final public participation products to the Department. All documents prepared under this Agreement shall carry the Department ' s name on the cover and title page. The Respondents Group name shall not appear except as part of the project title. CCCHSD' s. name shall not appear except in reference. to contact from the public for general public involvement assistance. 2 . Upon termination of this Agreement, CCCHSD shall provide .to Respondents Group, originals or copies of all available: (i) documents and other evidence pertaining to the costs, charges, fees and other expenses of this Agreement to the extent and in such detail as will properly reflect all net costs for labor, materials, equipment, supplies and services, and such 11544978 -6- other costs and expenses of. whatever nature for which reimburse- ment is claimed under the provisions of this Agreement; ,and (ii) drawings, designs, specifications, computer data, computer output, models, tracings, photographs, negatives, reports, findings, recommendations, data and memoranda of every description relating to the work and services described herein, or any part .thereof. ARTICLE VI - ADJUSTMENTS AND CHANGES 1. Respondents Group may at any time during the term of this Agreement by written notice to CCCHSD request changes within the general scope of this Agreement to the work and services to be performed hereunder, and such changes will be performed by mutual agreement of the parties. Respondents Group may also request additions, deletions or substitutions of the CCCHSD personnel or subconsultants working on tasks pursuant to this Agreement. Any changes must be mutually, agreed upon by the parties - in writing All changes are subject to prior approval of the Department. . 2 . If any. such requested change alters the cost of, or time required for, performance of the obligations of either party hereto, the parties shall in good faith negotiate an equitable adjustment to the applicable fees and budget set forth in Exhibit B. If such changes require the addition of f 11544978 -7- categories of labor not set forth herein, the parties hereto shall in good faith negotiate the rates applicable to such categories of labor and shall incorporate such categories and the rates applicable thereto by written amendment to the Budget. 3 . In the .event that during the term of this Agreement the labor rates applicable .to CCCHSD personnel working on tasks pursuant to this Agreement are increased pursuant to a labor rates increase for County employees by the Contra Costa County Board of Supervisors, CCCHSD will notify Respondents Group in writing of the. rate changes . The Schedule of Fees set forth in Exhibit ,B shall be adjusted in accordance with any applicable rate changes,. and the parties shall discuss whether an adjustment to the Budget is required. ARTICLE VII - TERMINATION OF AGREEMENT 1. The. parties shall have the right to. terminate this Agreement at will, immediately upon delivery of written notice to the other party and the Department. Written notice shall. be addressed to the persons identified in Article X. 2 . I.f not earlier terminated in accordance with Paragraph 1 of this Article, this Agreement shall terminate at the completion of the remedial action at the Site. 3 . Upon termination of this Agreement, CCCHSD shall deliver its final invoice. CCCHSD shall be paid for all 11544978 -8- services performed and expenses incurred up to the effective date of termination. Respondents Group shall pay such invoice in accordance with the terms of Article III . ARTICLE VIII - FORCE MAJEURE Neither party shall be responsible for damages or delays in performance caused by acts of God or other events that are beyond its control and that could not have been reasonably foreseen or prevented. For this purpose; such acts or events shall include storms, floods, earthquakes, epidemics, war, riot, strikes, lockouts .or other industrial disturbances . Should such acts or events occur, it is agreed that both parties shall use best efforts to overcome all difficulties caused thereby and to resume as soon as reasonably possible the normal pursuit and schedule of the services covered by this Agreement. ARTICLE .IX - CONFIDENTIALITY/DISCLOSURE OF INFORMATION 1 . To the extent allowed by .law, CCCHSD agrees to maintain confidentiality with regard to work and services performed pursuant to this Agreement. To the extent allowed by law, CCCHSD shall not disclose any documents or information produced by CCCHSD or its subconsultants, including drafts, except those documents approved for public distribution, to third parties, except that all documents shall be made available 11544978 -9- ' I to the Department. If, pursuant to the California Public Records Act, CCCHSD receives a request for a preliminary draft or note, produced within the scope of this Agreement, CCCHSD agrees to notify the Department and the Respondents Group Acting Chair of such request. CCCHSD shall endeavor to provide advance notice to the Department and the Respondents Group before disclosing any preliminary draft or note pursuant to. a Public Records Act request. To the extent allowed by law, including the Public Records Act, CCCHSD shall not disclose to any third party any information not already available to the public arising from the performance of work or services under this Agreement, without prior written authorization of Respondents Group, and. shall require a similar agreement from any. employee or subconsultant participating in the rendering of work or services under this Agreement. 2 . If any legal proceeding (including, but not limited to, any subpoena, notice of deposition or other discovery request) is instituted against CCCHSD to obtain confidential information, CCCHSD shall immediately notify Respondents Group of such proceeding, and if Respondents Group requests CCCHSD to take administrative measures to prevent disclosure of such confidential information, CCCHSD shall comply with such request to the extent CCCHSD determines that such measure is clearly permitted by law, and provided such request is reasonable. 11544978 -10- CCCHSD has no obligation or duty to defend any such legal proceeding. 3 . CCCHSD shall mark all correspondence, including draft reports, directed to the Department or to Respondents Group "CONFIDENTIAL, RESTRICTED DISTRIBUTION" except to the extent that the correspondence is a final document approved for public distribution pursuant to this Agreement. ARTICLE X - COMMUNICATIONS All communications dealing with the substance of the work to be performed under the Agreement (as opposed to administrative communications, such as invoices or remittances) between the parties shall -be through the Department Branch Chief or her designee unless the Branch Chief gives explicit permission for direct communication between the parties . The Department shall be notified at least three (3) business days in advance of any meetings, conversations or other oral communications between the parties . Communications hereunder by either party to the other shall be in writing and delivered by first-class mail, postage prepaid. If to Respondents Group, such communication should be addressed to the Acting Chair, currently as follows : 11544978 -l l- Acting Chair Mr. Douglas Waltermire Acting Chair, GBF/Pittsburg Landfill(s) Respondents Group 4585 Pacheco Boulevard Martinez, . CA 94553 and if to CCCHSD, to: Ms . Mary Anne Morgan Public Health Administration 597 Center Avenue, Suite 200 Martinez, California , 94553 and if to the Department, to the Branch Chief ' s designee, currently as follows: Mr. Bill Albert Public. Participation Coordinator Region II Department of Toxic Substances Control 700 Heinz Avenue, .Suite 200 Berkeley, CA 94710-2737 Either party may change its notice recipient upon notice to the other and to the .Department. ARTICLE XI - CCCHSD ASSUMPTION OF LOSS, DAMAGES AND EXPENSES 1. CCCHSD agrees to assume the risk of property loss or damage, and of personal injury or death that may be sustained by CCCHSD, CCCHSD' s employees and CCCHSD' s subconsultants arising from the performance of work pursuant to this Agreement. 11544978 -12 2 . CCCHSD shall be exclusively responsible for the payment of any and all employee taxes, benefits, insurance and like expenses relating to CCCHSD' s employees . ARTICLE XII NO ADMISSION OF LIABILITY OR RESPONSIBILITY/ RESERVATION OF RIGHTS 1 . Nothing in this Agreement shall be construed in any manner as an admission of causation, responsibility, liability, contribution, or indemnity by Respondents Group (including entities forming Respondents Group, and officers and directors thereof) with respect to any past, present or future conditions, including impacts on human health or the environment, at and in the vicinity of the Site, or with respect to any related matter. 2 . Respondents Group (including entities forming Respondents Group) reserves any and all claims or defenses relating to any matter arising from any condition at and in the vicinity of the Site. In addition, except as otherwise provided in this Agreement, Respondents Group (including entities forming Respondents Group) reserves any and all rights it may have to indemnity and contribution from any company, person and/or entity with regard to any costs, damages and liabilities . 11544978 -13- ARTICLE XIII - MISCELLANEOUS 1 . CCCHSD agrees to restrict its staff dedicated to performance of work under this Agreement, and its subconsultants, from any employment other than the work pursuant to this Agreement in any way pertaining to the Site for a period of one ( 1) year after completion of the remedial action at the Site and/or termination of this Agreement, unless it. first obtains the written consent of the Department Branch Chief and Respondents Group. CCCHSD shall insert this condition into all agreements with its subconsultants for the performance of work hereunder. 2 . Subject to the restriction upon assignment contained in Article IV hereof, this. Agreement shall inure to the benefit of and bind the successors, assigns, heirs, executors and administrators of Respondents Group (including entities forming Respondents Group) and CCCHSD. 3 . Many of the provisions of this Agreement embody continuing obligations beyond performance of work and services and payment, including but not limited to Article IX (confidentiality) , Article XI (indemnities) and Article XII (reservation of rights) . All such provisions shall survive termination of the Agreement. . 4 . This Agreement constitutes the entire agreement of the parties hereto relating to the work set forth in Exhibit A and 11544978. -14- supersedes', any and all prior and contemporaneous agreements, representations and understandings of the parties . No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by CCCHSD and Respondents Group. No waiver of any of the provisions of this ,Agreement shall be deemed or shall constitute a waiver of any other provisions, whether or not similar, nor shall any waiver in one instance constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. 5. If any term, covenant, condition or provision of this Agreement is . held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired' or invalidated. 6 . This Agreement shall be construed. in accordance with and governed by the laws of the State of California. 7 . ' CCCHSD, in performing the work required under this Agreement, shall not discriminate against any employee or applicant for employment on any improper basis, including but not limited to race, creed, color, national origin, sex, sexual orientation, marital status or disability. 8 . CCCHSD agrees that whenever any actual or potential labor dispute delays or threatens to delay the timely 11544978 -15- performance of this Agreement, CCCHSD shall immediately give notice thereof to Respondents Group. 9 . The parties to this Agreement represent that they have obtained the Department' s approval of this Agreement. 10 . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and such counterparts shall together constitute and be one and the same Agreement. ARTICLE XIV - LIMITATION OF DAMAGES, INDEMNIFICATION .1. Respondents Group (including the entities forming Respondents .Group) agrees that CCCHSD' s exposure for costs,' damages, including but not limited to consequential damages, liability, expenses, etc . , of any kind whatsoever associated in any way with CCCHSD' s breach, performance or nonperformance of this Agreement, shall be limited to returning to Respondents Group any funds paid to CCCHSD by Respondents Group under this Agreement. Other than a suit for refund of funds paid, Respondents Group (including the entities forming Respondents Group) shall have absolutely no recourse against CCCHSD for any action or inaction under this Agreement by CCCHSD, its officers, employees, agents and assigns, whether such action or inaction constitutes negligence, breach of contract or otherwise actionable under any theory. at law or equity. 11544978 -16- 2 . Respondents Group ( for and including the entities forming Respondents Group) hereby expressly waives and releases CCCHSD of any claims, costs, damages, liability, expenses, fines or any other form of indebtedness that may arise on the part of CCCHSD in favor of Respondents Group (including the entities forming Respondents Group) in excess of the amount of funds paid to CCCHSD hereunder. 3 . Respondents Group (including the entities. forming Respondents Group, except for government members) ,agrees to save, indemnify and keep harmless the CCCHSD, its officers, employees and agents against any and all liability, claims, judgments or demands, including demands arising from injuries or deaths of persons and damage to property, arising from environmental damage originating directly or indirectly from the obligations herein undertaken, except claims or litigation arising through the negligence or willful misconduct of CCCHSD, , its officers, employees and agents, and will reimburse CCCHSD for reasonable attorneys ° fees and costs that CCCHSD may expend. by reason of such matters . ;f requested by CCCHSD, Respondents Group shall defend any such suit at the expense of Respondents Group (including the entities forming Respondents Group, except for government members) with counsel selected by Respondents Group and approved by CCCHSD. Approval of counsel by CCCHSD with regard to such matter shall not be unreasonably denied. 11544978 -17- The above promise by Respondents Group to indemnify, hold harmless and defend CCCHSD expressly includes, but is not limited to all claims, damages (including but not limited to consequential damages) , natural resources damages, punitive damages, injuries, costs, response remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal and administrative proceedings, interest, fines, charges, penalties and expenses (including but not . limited to attorneys ' and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever paid or incurred by, or asserted against, CCCHSD, its officers, employees or agents, arising .from or attributable to any action - under this Agreement. The foregoing is intended to operate, in part, as an agreement pursuant to section 107 (e) of the Comprehensive Environmental Response, Compensation and Liability Act ( "CERCLA" ) , 42 U.S.C. S 9607 (e) , and section 25364 of the California Health and Safety Code, to defend, hold harmless and indemnify CCCHSD. The promise and agreement. in this section shall survive the expiration of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. 11544978 -18- COUNTY OF CONTRA COSTA, CALIFORNIA BOARD OF SUPERVISORS FORM APPROVED By J By 40 C air esignee if DEPUTY COUNTY COUNSELV CONTRA COSTA COUNTY, CALIF. APPROVED: COUNTY ADMINISTRATOR RECOMMENDED BY DEPARTMENT By B Design,-'e Design e RESPONDENTS GROUP B / Doug as Waltermire Title: Acting Chair Date 11544978 -19- N� P t� '� W ' a �� r� �� d 1`9�HX� �, � , • i Number: 28-561 Exhibit A, SCOPE OF WORK for GBF/PITTSBURG LANDFILL PUBLIC PARTICIPATION ACTIVITIES The Contractor (Contra Costa County Health Services Department) shall provide the following support for public participation activities: 1. One-time update of all sections of the Public Participation Plan, for the CBF/Pittsburg Landfill hazardous waste site, based on review of Contra Costa County-produced G$F/Pittsburg Landfill Task Force minutes and review of agency files, as appropriate. The update of each section will comply with DTSC public participation guidelines. As necessary, at the direction of DISC, the Contractor may be directed to update the revised Public Participation plan to reflect changes in community concerns and priorities or in the project itself 2. Obtain and provide to DTSC on request additions to the site mailing list, which will include: a. Owners and occupants of properties contiguous to the site boundary, provided by the Respondents Group, based on the most current County Assessor's records. b. Residents of the housing developments.to the north, east and southeast of the site (this part of the mailing list may be provided by obtaining a carrier route list). 3. Produce and distribute update, fact sheets and public notices as directed by, and with the approval of, DTSC. At minimum, the mailing list will receive fact sheets at technical milestones indicated in the updated Public Participation. Plata. 4. Coordinate and staff public meetings as directed by DTSC, including arranging and providing all logistical support. Thatt support may include: arranging for audiovisual equipment; providing agendas, sign-in sheets, evaluation forms and the like; developing display or projection graphics in conjunction with the Respondents Group; etc. At minimum, public meetings will occur at technical milestones indicated in the updated Public Participation Plan. 5. Maintain information repositories at facilities indicated in the updated Public Participation Plan (the Pittsburg, Antioch and Central-Pleasant Hill libraries), containing documents identified by DTSC. The repositories will have an index folder, containing the titles, dates and abstracts of each document and one extra copy of key documents for public check-out. Respondents Group will provide initial sets for repositories; at DTSC's direction, reproduce extra copies of site documents necessary to adequately supply information repositories. 6. As necessary, at the direction of DTSC, coordinate speakers or on-site representatives able to sensitively and articulately describe work in progress at the site. 7. Perforin program management functions, including coordination of fiscal and administrative matters with DTSc, as needed for maintenance of the contract and forwarding queries to DTSC. 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