Article 6.5. Performance-based Contract of California Health And Safety Code >> Division 20. >> Chapter 6.75. >> Article 6.5.
(a) For purposes of this article, the following
definitions shall apply:
(1) "Baseline concentration" means the initial concentration of a
constituent of concern prior to conducting corrective action pursuant
to a performance-based contract.
(2) "Constituent of concern" means the chemical element, compound,
or grouping, including, but not limited to, total petroleum
hydrocarbons, as in gasoline, that is present in the soil or
groundwater and subject to corrective action.
(3) "Performance-based contract" means a written agreement
approved by the board between a claimant and an appropriately
licensed contractor, where the contractor agrees for a fixed price to
take corrective action to reduce the concentrations of designated
constituents of concern to specified concentrations.
(4) "Remediation milestone" means that a specified reduction in
the concentrations of constituents of concern from baseline
concentrations has been attained through corrective action. The
reduction is expressed as a percentage of the total reduction
required by the performance-based contract.
(b) The board may pay a claim pursuant to Section 25299.57 to
reimburse the cost of a performance-based contract if the board
approves the contract as being consistent with this article.
(c) A performance-based contract includes, but is not limited to,
the total fixed price contract amount, designated constituents of
concern, baseline concentrations, and if appropriate, a payment
schedule indicating the amount to be paid when specified remediation
milestones are attained.
(d) The board shall make payments based upon the reduction in the
concentrations of designated constituents of concern to specified
concentrations. If corrective action is estimated to take six months
or more to achieve these concentrations and the remediation
technology proposed is a pump-and-treat or other type of mechanical
remediation technology, the board may pay a portion of the fixed
price based on the attainment of specified remediation milestones or
other performance parameters, in the following manner:
(1) The first payment shall include the amount of incurred capital
costs upon successful installation and startup of the mechanical
(2) The second payment shall be an amount equal to the agreed upon
percent of the total contract price when the 25 percent remediation
milestone is attained.
(3) The third payment shall be equal to an agreed upon percent of
the total contract price when the 50 percent remediation milestone is
(4) The fourth payment shall be equal to an agreed upon percent of
the total contract price when the 75 percent remediation milestone
(5) The fifth payment shall be equal to an agreed upon percent of
the total contract price when the 100 percent remediation milestone
(6) The final payment shall be the amount of the remaining
contract price that shall be paid when the 100 percent remediation
milestone has been maintained for one year following cessation of all
(a) The claimant shall submit multiple bids for a
performance-based contract in accordance with paragraph (1) of
subdivision (g) of Section 25299.57 and any regulations adopted by
the board to implement that section.
(b) To assist claimants in soliciting bids for performance-based
contract projects, the board shall advertise bid solicitations for
these projects through the board's Web site. The board shall be the
receiving address for the bids, and shall offer other assistance,
upon request, in accordance with the regulations adopted pursuant to
this chapter. The bids shall be sealed prior to submittal to the
board. This subdivision does not prevent the board from approving a
performance-based contract covering multisite cleanups, if the board
determines that economies of scale will assist claimants in
soliciting bids or reducing overall costs.
(c) The sites for which the board may consider approving a
performance-based contract include, but are not limited to, all of
(1) A site that had an unauthorized release reported to the board,
the regional board, or local agency five or more years ago and
active remediation has not begun.
(2) A site where corrective action has been implemented for two or
more years pursuant to a corrective action plan that was approved by
the board, the regional board, or local agency, but that corrective
action has not been effective in reducing the concentrations of the
constituents of concern to the satisfaction of that board or agency.
(3) A site where corrective action costs are expected to exceed
the maximum fund reimbursement amount prior to case closure.
(4) A site where the board, the regional board, or local agency
has recently determined that an unauthorized release has occurred
that has the potential to impact nearby receptors or otherwise cause
significant impact to the waters of the state.
(5) A site where an unauthorized release of MTBE, as defined in
paragraph (2) of subdivision (a) of Section 25299.97, has occurred
and corrective action has not been initiated or satisfactorily
conducted, as determined by the board, the regional board, or local
agency, or according to any regulations adopted pursuant to Section
(6) A site where the board, the regional board, or local agency
has determined that corrective action other than ongoing monitoring
of groundwater is more likely to reduce the concentrations of
constituents of concern sooner and at a lower cost.
(d) This article does not preclude a claimant from requesting
board approval of a performance-based contract to conduct corrective
action at the claimant's site.
This article does not limit or abridge the powers and
duties granted to the board, the regional board, or local agency
pursuant to any other provision of law.