Key Components of a CBA

Key Components of a CBA

While projects and the communities and environments they impact have many unique qualities, the form of the CBA and the types of issues to be addressed may be similar. In general, a CBA should clearly state the scope of activities and commitments, assign responsibilities for implementation, establish parameters for ongoing monitoring and periodic evaluation, outline a grievance process, and specify the procedures for enforcement and amendments. More specifically, the following is a list of 24 components that are commonly included within CBAs:

1. Preamble and goals. An introductory section that explains the purpose and context of the CBA.

2. Guiding principles. A framework for interpreting provisions and addressing unforeseen situations when implementing the agreement.    

3. The effective date of the CBA and the period of performance. It identifies when the CBA, a formal contract, comes into effect and how long it remains active. The effective date and the date the first actions are taken often differ.

4. Identification of the parties to the agreement. The specific list of parties involved in the CBA ensures that all parties are accurately identified, which is crucial for the agreement’s validity and enforceability.

5. Definitions for terms. 

6. Languages for translations.

7. Definition of the project and project area.

8. Execution of the agreement. It documents the process by which the agreement was reviewed by all parties and signed, making it legally binding and enforceable.  

9. Land acknowledgement. A formal statement that recognizes and respects the Indigenous peoples in the region, including all Tribes with ancestral territories from before colonization that continue to remain in relationship to these lands through ceremony, culture and stewardship.

10. Documentation of the Tribal engagement process and outcomes. 

11. Benefits provisions. A detailed list of commitments by all parties, including quality, quantity, targeted groups, monitoring, metrics, enforcement, and timelines.

12. Identification of the party(s) responsible for expenses related to enforcement.

13. Conditions if the project fails to be completed or shuts down before the conclusion of the CBA.

14. Decommissioning, closure, and post-closure after the conclusion of the CBA.

15. Confidentiality of terms, conditions, or other information.

16. Dispute resolution.

17. Contingencies for succession. A description of what will happen should the ownership or legal status of signatories change during the term of the agreement.

18. Terms of periodic review.

19. Remediation of deficiencies. A description of what happens if one or more commitments or terms of the agreement are not met.

20. Terms of enforcement.

21. Governing laws. In the case of dispute, what laws apply, and in what courts can legal challenges be filed? This can also include exclusions that are intended to clarify each party’s standing.

22. Unforeseen circumstances that prevent someone from fulfilling a contract [Force Majeure].

23. Status of nonemployment or relationship of parties. Confirmation of the relationship each party has to the developer or project owner. Entities that are being paid by or have a relationship with the developer or project owner must disclose those payments or relationships.

24. Indemnification.

25. Severability. A provision in the agreement states that each provision is independent of the others (unless specifically linked) and that the contract remains valid and enforceable even if one provision is deemed invalid.

26. Amendments to the CBA. A provision that states whether the CBA or any specific provision in the CBA can be amended; if it can, it describes the process for making amendments.

Worksheet 5A—Checklist of Community Benefits Agreement Components can help you organize your CBA activities, including drafting, distributing, and tracking proposals within your negotiation network as well as negotiation meetings. The worksheet is also valuable in organizing your review of draft documents and making more actionable comments. At the end of the process, the worksheet can serve as a checklist to confirm that key components are included in the CBA.

Worksheet 4C—Defining and Prioritizing Community Benefits can guide your process of learning about specific provisions and weighing them against one another. Review this worksheet briefly now to familiarize yourself with the options, and we will return to it later in this section.

Legal Representation

The importance of having legal counsel cannot be overstated. In addition to reviewing and drafting CBA provisions and amendments, an attorney’s advice can guide the preparation of project impact statements and development of negotiation strategies. It can also help ensure that the rights of community coalition members are protected. A CBA may require several attorneys with different areas of expertise, including legal experience in contracts, environmental practices, Tribal cultural resources, business, patients, mining and extraction, and energy. Attorneys need to have standing to practice law in the state where the project is being developed. When identifying an attorney or legal aid professional, there are resources to help you find them, including pro bono rules, etc.

Referrals from environmental justice and labor groups, Tribal nations, or other mission-driven organizations are a great first step in identifying legal representation. If you don’t have access to a referral or want to see what other firms might be out there, look up affiliate members of trade associations where you have shared values or legal aid organizations that focus on environmental or social justice, such as Earthjustice. The State Bar and/or its related attorney associations often have referral services or an online directory of attorney firms based on areas of expertise.   

While attorneys can be expensive, they may be covered by a funder or done pro bono. To identify firms doing pro bono work, check legal aid websites, law schools, and state bars. In California, for example, attorneys can participate in the Pro Bono Practice Program, allowing them to contribute their legal skills and expertise in exchange for reduced annual and mandatory continuing education fees.

Regardless of where the referral comes from—whether it is from a respected organization or independent research—always take the time to interview the firm and the attorney who will be assisting. When considering hiring an attorney, here are six things to consider:

1. Licensing and Experience: An attorney is licensed and admitted to practice law in a particular state or federal jurisdiction. Check that the legal professional you select is licensed (American Bar Association) to practice law in your jurisdiction and has relevant legal experience related to your project.

2. Communication: Assess whether your prospective attorney’s communication style and methods work for you and others in your Negotiation Support Network.

3. Rapport: Assess how comfortable you feel discussing your legal matters with them.

4. Availability and Responsiveness: Confirm that the prospective attorney has the time and resources to dedicate to your case and can respond quickly to your needs.

5. Reputation and Track Record: Find potential legal professionals online by looking at their firm’s testimonials, reviews, and any notable achievements or accomplishments. You can ask peer organizations for references.

6. Fees and Costs: Understand the fee structure and potential expenses associated with your project. For example, do they contract using a monthly retainer fee, work on contingency fees, or charge hourly?

Effective representation requires more than knowing the subject matter; it also requires an open and trusting relationship between the attorney and the client. Before interviewing a prospective attorney, consider what questions you need answered to have a trusting relationship.

Attorney vs. Lawyer

When assembling your negotiation team, it’s essential to consider the type of legal or strategic advice you will need. Will you require someone who can draft CBA provisions and assist you in understanding counterproposals? Will you additionally need representation in court if CBA negotiations break down or if court enforcement becomes necessary?

If you only need the former, then a lawyer who has strong expertise in project development, relevant laws, and negotiation techniques may be sufficient. However, if you believe that it’s important to have someone on board who can legally represent you in court and counsel clients on a court case, then you will need to have an attorney who is licensed to practice law and represent clients in a specific state.  

Depending on our needs, you may want to have both as part of your team. For more information, you can refer to West Coast Trial Lawyers.

Resources for Developing CBA Provisions

• 20-plus CBA examples

• 10-plus case studies of real-world experiences that communities had in negotiating their CBAs 

2 sample ordinances

• Detroit’s Community Benefit Ordinance, link 

• (See the report for a discussion of this ordinance’s shortcomings.)

• Richmond’s Community Benefit Ordinance, link

4 templates to kick-start your CBA

• Community Benefit Ordinance Template, prepared by Emerald Cities, link

• Comprehensive CBA by Fair Shake Environmental Legal Services, link

• Simplified CBA, prepared by Fair Shake Environmental Legal Services, link

• Comprehensive CBA prepared by CCI’s Toolkit Project Team, link

• Link to Black’s Legal Dictionary

Introductory Sections: Preamble, Principles, and Land Acknowledgement

The following subsections provide example provisions to facilitate more meaningful conversations among the fenceline community, other impacted communities, coalition members, their attorneys, and other professionals assisting the CBA Negotiation Team. This is not intended to provide legal advice or be a substitute for seeking professional assistance in drafting the CBA.

Preamble and Guiding Principles

The first sections of the CBA include the preamble and the guiding principles. This is sometimes referred to as the “Recitals.” The preamble is an opportunity for community coalitions to document the context in which the CBA was developed as well as its purpose and intent. The Preamble identifies the parties involved, states the date of the agreement, and provides a brief explanation of the reasons for entering into the agreement. In negotiations, the Preamble can be a good place to establish a shared understanding of the CBA’s purpose with the project sponsor and community coalitions, which can help build a bridge to more specific provisions later in the document.

The guiding principles provide a framework for interpreting provisions and addressing unforeseen situations when implementing the CBA. When preparing and negotiating guiding principles, consider how the provisions would resolve disputes and remove impediments to the successful implementation of the CBA. The guiding principles can also be internally referenced when drafting the provisions related to the grievance process, remediation of deficiencies, and amendments.  

When beginning to draft guiding principles, a good place to start is researching the company’s or sponsor’s existing equity and/or ESG-based commitments. In some cases, these commitments may have very limited commitments, and in others, they may be signatories to broad-based commitments, such as the UN Sustainable Growth Goals and UN Global Compact; financial and investor commitments, such as CDP Disclosures and UN Principles for Responsible Development; or an industry-specific sustainable development performance standard.  

Even in cases where the commitments could be considered greenwashing, they can serve as a practical foundation for building your negotiation strategy. By using language developed by a company or industry association, community groups can potentially apply leverage for more meaningful CBA provisions by holding the company accountable to its own public commitments. Whether publicly or privately, it is more difficult for a company to turn down a CBA provision that advances a principle the company has already committed to supporting.

Land Acknowledgement

The best way to develop a land acknowledgement is through direct dialogue with the descendants of the people you are recognizing. Even if using a land acknowledgement prepared for another project in the region, sharing your proposed language with the Tribe or organization that is affiliated with the ancestral people who lived on these lands is respectful. The US National Endowment for the Humanities, in its booklet “Honor Native Land: A Guide and Call to Acknowledgement,” recommends a multistep process that also involves meaningful engagement, leading to an authentic relationship. For additional resources, you may like to reference this guidance from Sogorea Te’ Land Trust and this video from Humboldt State University’s Native American Studies Department.

Tribal Rights and Access Provisions

As discussed more fully in Section 5, international laws and many federal governments require developers and project sponsors to take steps to invite Tribes to engagement prior to a government entity taking action on a permit or license. These engagements are sometimes informally referred to as a “Tribal Consultation.” We encourage non-Native community coalitions not to use the term “consultation” because it has a specific meaning to Tribes, which recognize formal consultations only to take place on a government-to-government basis, i.e., sovereign nation to sovereign nation.

Because of its regulatory duties to demonstrate engagements with Tribes, the developer or project sponsor may want to use this portion of the CBA to support its permit applications, outline its efforts to engage with a Tribe, describe key issues discussed and any outcomes of the discussion. Fenceline communities can utilize this section of the CBA to explain how they have shared information and supported local Tribes in participating in CBA-related activities.

Selected Examples of Tribal Rights and Access Provisions

Recognition of Indigenous rights, Tribal cultural resources, and associated obligations to free, prior, and informed consent
The Western Cape Communities Co-Existence Agreement, the Ely Bauxite Mining Project Agreement, and the Weipa Township Agreement, between Rio Tinto and 12 Aboriginal “Traditional Owner” groups, recognize Indigenous title to the land that Rio Tinto mines.

Cultural awareness training
A 2020 CBA between Nevada Gold Mines and the Confederated Tribes of the Goshutehone Reservation, the Duckwater Shoshone Tribe, the Ely Shoshone Tribe, the Fort McDermitt Paiute Shoshone Tribe of Nevada and Oregon, the Shoshone-Paiute Tribes of the Duck Valley Indian Reservation, the Te-Moak Tribe of Western Shoshone: Battle Mountain Colony, Elko Colony, South Fork Indian Reservation and Wells Colony, and the Yomba Shoshone Tribe include a commitment to building mutual cultural awareness. In achieving this objective, the agreement includes a process for offering “cultural awareness training that includes learning more about the Western Shoshone, Goshute, and Paiute people and culture and about what is entailed in Nevada Gold Mines’ mining operations.” The agreement outlines the process for selecting training participants, the timing, and a goal that the timing will be such that “all who require or seek such information are able to access it.”

Access Through and/or Around Operations
The 2020 Nevada Gold Mines CBA acknowledges that there may be times when it will be necessary to access the mining property to carry out traditional ceremonies and other cultural activities. The CBA provides for access to the property for these activities and commits to developing written notice procedures to ensure the Nevada Gold Mines can safely provide access to all the Tribes who are signatories. By having written procedures, the agreement lays the foundation for better communications about accessing these lands as well as avoiding disappointments should the occasion arise that access has to be denied.

Governance Provisions: How a Community Can Maintain Control of the Process

Although CBAs are legally binding, ongoing community engagement and CBA governance are consistently raised as concerns by fenceline communities and their allies. Building a formal and ongoing role for the coalition and fenceline communities in the implementation of the CBA is a top priority for many coalitions. These can take the form of Community Advisory Committees (CACs) with diverse membership, such as representatives from impacted neighborhoods, local elected officials, labor unions, community-based organizations and EJ Groups, small businesses, and educators, as well as the company. Some CBAs call for multiple Advisory Groups, each with a specific area of expertise, such as workforce preparedness, supplier diversity, sustainable operations, or volunteerism.

Tips for Designing CBA Provisions

Here are some core questions to ask when preparing a CBA provision:

• Is the commitment clearly defined, including the identification of the responsible entity, quality and quantity conditions, and reporting requirements?

• Does the completion of the commitment align with our equity and community development goals and, if so, how?

• Who is the commitment targeted to serve, and how will the targeted group(s) access the benefits?

• How will we know if the commitment has been successfully fulfilled?

• Is the commitment actionable, or is it better placed within the CBA’s guiding principles?

• Are there consequences and alternative delivery methods if the commitment is not met? 

• Is there a timeline for starting and completing the work?

• How will tracking and monitoring take place?

Road Test Provisions with Allies. Research and community surveys by the Climate Equity Initiative at Clean Air Task Force recommend collaborating on the design of the benefit provisions with third parties and community allies with a history in the community. They can provide valuable perspective on enabling more inclusive outreach strategies and ensuring developers are held accountable to their commitments throughout implementation and enforcement. A neutral third party or mediator can also provide a fair negotiation process as well as evaluate and verify performance during implementation. 

Define Funding for Third Party Monitoring. Recognize that funding will need to be identified to ensure that implementation is monitored, commitments are tracked, and the process is reported. Aligning timelines and milestones with other activities can streamline these processes and potentially take advantage of publicly mandated activities. Third-party evaluations are the most reliable options, and a schedule and funding can be included in the CBA. For environmental benefits, conservation groups and land trusts can receive easements for ongoing stewardship. EJ groups can provide longer-term monitoring of public health, social justice, and workforce provisions dedicated to underserved populations, but the CBA will still need to identify a funding source.

Performance Standards. Ongoing reporting by the project sponsor and other groups that have made commitments is crucial for the Community Advisory Committee and third-party evaluators to track and monitor implementation. The CBA will streamline accountability for all parties if it has clear performance standards and related metrics in place. Specific terms can be added to the CBA language to allow for modifications that address evolving needs. One role for the Community Advisory Committee can be to expand upon and provide a framework on how the metrics and performance standards will be used in reporting.  

Here is a sample of the Annual Report by the City of Richmond, 2022-23, regarding the implementation of the Environmental and Community Investment Agreement. The agreement was part of a larger project, for which the City of Richmond provided approvals, including certification of the final Chevron Refinery Modernization Project Environmental Impact Report and applications for a Conditional Use Permit and Design Review Permit. 

Selected Examples of Governance Provisions

Identification of representatives and CBA decision-making authorities
In Nashville, Tennessee, a CBA covering the site of a new Major League Soccer stadium directed the signatories to establish a six-member Community Advisory Committee, including two representatives from the developer, two representatives from a community coalition, and two residents from each of the two adjacent affected “promise zones” hosting the development. Together, the committee serves as a decision-making body that implements the CBA and ensures compliance with its provisions.

CBA duration, amendment, and expiration date
In 2011, a division of the Chevron Corporation and the City of Richmond signed the Environmental and Community Investment Agreement, aimed at addressing issues relating to a major modernization project at Chevron’s oil refinery in Richmond, California. The agreement set a 10-year lifetime commencing with the operation of a new plant or a period where Chevron was to pay the City $3 million annually in 10 installments, whichever was longer. 

Outline of decision-making processes and meeting requirements
The L.A. Live/Staples Center CBA between the developers, LA Arena Land Company, Flower Holdings LLC, and a coalition of over 20 community groups set a schedule for quarterly meetings of its Advisory Committee. During these meetings, developers were to seek community input on the project and the implementation of the CBA. 

Cross-referencing labor-management agreements or community development plans
Article IX of the 2022 agreement between the Greater Birmingham Ministries, Jobs to Move America, and the electric bus manufacturer New Flyer for their facilities in Anniston, Alabama, states that a labor-management agreement—such as a collective bargaining agreement—will control wherever there is a conflict of a term, right, or obligation under the agreement.

Benefit Provisions: Delivering for Your Community

This subsection is designed to facilitate more meaningful conversations between community members and their attorneys as well as other professionals assisting the CBA Negotiation Team. This is not intended to provide legal advice or be a substitute for seeking professional assistance in drafting the CBA. 

The subsection includes more detailed information on how the benefit provisions may be structured. This includes specific examples (Tables 7–11) of provisions related to financial, labor, training, local businesses, environmental protection, community facilities, and infrastructure. In addition to assisting you in drafting and reviewing CBA provisions, these tables are intended to align with community engagement activities related to Worksheet 4C—Defining and Prioritizing Community Benefits.

Selected Examples of Financial Provisions

Direct payments (one time or recurring)
Under a Host Community Agreement with the Town of East Hampton and the Trustees of the Freeholders and Commonalty of the Town of East Hampton, offshore wind developer South Fork Wind paid the Town and Trustees $500,000 within 90 days of the agreement’s signing. South Fork Wind also agreed to pay the town and trustees an annual amount for 25 years, starting with a $700,000 payment within six months of the wind facility’s full operational capacity and increasing by 2% each year.

Community benefit funds (to facilitate grants for defined community needs, e.g., infrastructure, parks, scholarships, affordable housing, early childhood education, waste management, etc.)
A Community Agreement between mining company Perpetua Resources Corp. and multiple nearby municipalities in central Idaho directed the company to establish a charitable trust, the Stibnite Foundation, to provide grants to local nonprofit organizations and the municipalities themselves. Upon the commencement of Perpetua’s mining operations, the company will offer a minimum of $500,000 in grant funding per year.

See also: Chevron Modernization Project Environmental and Community Investment Agreement, Richmond, California. This agreement supports both educational support but also environmental and public health monitoring because it is a major polluting facility.

Trust accounts held by a third party for money management
As part of the Integrated Benefits Package, the islanders of Lihir, Papua New Guinea, are the beneficiaries of a trust account established by gold miner Lihir Gold Ltd. From 2006 to 2011, the company contributed approximately $35 million to the trust. Portions of the trust are put toward community projects. 

Partial ownership of operations or carried shares of profits from operations with mitigation measures for risk and liability (e.g., free equity or no-interest loans)
Through Morongo Transmission LLC, the Morongo Band of Mission Indians is a part investor in a transmission line. The utility makes direct payments to the Tribe, expanding the Tribe’s capacity to build, own, and deliver solar, wind, and battery power to the Southern California Edison (SCE) electricity grid. SCE also passes energy cost savings to Tribal members. The project was completed in 2021, making the Morongo Band of Mission Indians the first Native American Tribe to be approved as a participating transmission owner in the United States.

Diversified revenues with fixed payments and royalties on produced/extracted commodities (e.g. kWh of energy, tons of copper, percentage of revenue, etc.)
The Raglan Agreement, signed in 1995 by five different Inuit communities and the Raglan nickel mine currently operated by Glencore in the Nunavik region of Quebec, provides single and multiple fixed payments that increase over the life of the project, as well as a 4.5% annual share of profit.

Under a Benefit-Sharing Agreement, 18 Atacameño communities and the nonprofit Consejo de Pueblos Atacameños (CPA) in Chile receive 3.5% of Albemarle’s revenues from lithium extraction on the Atacama salt flats. Three percent of the revenue is divided among the 18 communities and the CPA. The remaining 0.5% is distributed to CPA for studies, plans, programming for Indigenous entrepreneurship, and the establishment of an environmental monitoring unit.

Below is a comparison of advantages and disadvantages of different financial provisions. You may wish to consider a similar comparison of benefits and challenges for any of the benefit categories listed in Worksheet 4C—Defining and Prioritizing Community Benefits. 

Advantages and Disadvantages to Communities of Different Financial Provisions

Fixed payments

A payment amount that remains constant throughout a specified period, as compared to variable payments that are tied to a defined metric, such as profits or production.

Pros

• Guaranteed, predictable, easy to administer

• Not dependent on project profits

Cons

• Payment amounts won’t increase, even if production, commodity prices, or local disturbances increase.

Royalty based on the volume of outputs

A payment for using a certain location or doing an activity is calculated based on the quantity of products sold, which means the royalty rate is typically a percentage of a fixed amount per unit sold and the total royalty payment increases as the volume of outputs increases.

Pros

• Payment amount increases as the company ramps up production.

• Payments for environmental mitigation scale with environmental impact.

• This is not dependent on project profits or falling commodity prices.

Cons

• Payment amounts won’t increase if commodity prices increase.

• If production or operation costs fall, payment amounts won’t increase, and the community may lose jobs due to downsizing, automation, etc.

• There is no guaranteed baseline payment.

Royalty based on the value of production

A payment for using a certain location or doing an activity based on the value of the products sold, which means the royalty rate is typically a percentage of the value per unit sold and the total royalty payment increases as the value of the output increases

Pros

• Community shares in benefits if the commodity price or production levels increase

• Easy to administer

• Not dependent on project profits

• Not dependent on operating, financing, or capital costs

Cons

• Payments may fall, often rapidly, if commodity prices fall.

• Processing steps after production (e.g., smelting, transportation) may limit the output value that can be capitalized on as royalties.

• There is no guaranteed baseline payment.

Royalties based on profits

A payment for using a certain location or doing an activity based on the facility’s or owner’s profits rather than a percentage of their revenue, which means the royalty calculation is tied to the business’s actual profitability after deducting all related expenses

Pros

• Value can increase if mining costs decrease through efficiencies.

• Value increases if commodity prices increase and costs are stable.

Cons

• Not all projects are profitable.

• Agreement must be very clear; it can be hard to administer because of the need for accounting oversight.

• Income changes with commodity price; communities are vulnerable during recessions.

• Operating costs can fluctuate yearly.

• Companies can manipulate deductions before profits are measured. 

• Payments can be delayed until projects become profitable after capital costs are recouped.

Equity

Compensation is most commonly paid to an investor for the use of a location or activity in exchange for the right to receive a share of future revenues generated by the extracted product. This does not require the transfer of ownership in the company.

Pros

• Value increases if the project is profitable.

• This can provide access to information and input to company management and decision-making.

• This can provide greater control over the use of ancestral lands and the environment.

Cons

• The community may need to raise capital for investment.

• The project might not be profitable or have comparable value to other investments.

• Subject to the same risks as the company, like unexpected costs or commodity price changes.

• The community may be required to share operating losses or capital expenditures.

• The community may have liabilities as a partial owner

• Legal costs can be high.

• Funds may not flow early or readily back to the community; short-term benefits are unlikely.

Selected Examples of Labor and Workforce Training Provisions

High-road, family-sustaining jobs with equitable hiring and promotion practices to remove barriers for local workers (i.e., transportation and childcare); wage commitments with union neutrality

In Nashville, Nashville Soccer Holdings (NSH), the developer of a new Major League Soccer stadium, agreed to establish a Hiring and Workforce Development Program under a CBA with Stand Up Nashville, a local nonprofit organization. The program requires NSH to consider applicants from Nashville’s federally determined “Promise Zones” before other candidates for job openings in guest services (including box office, ticket sales, ushers and attendants), janitorial, custodial and maintenance, and field maintenance and to pay such employees at least $15.50 per hour. 

See also: LA Live! Community Benefits Agreement, Los Angeles, California

Job-related health and safety
The 2022 agreement between the Greater Birmingham Ministries, Jobs to Move America, and the electric bus manufacturer New Flyer for their facilities in Anniston, Alabama, includes OSHA-10 training and participation in an environmental health committee focused on employee safety matters as well as independent safety training by an external expert.

Workforce training, including on-the-job training and apprenticeships
In 2017, Jobs to Move America helped to build a community-labor coalition that resulted in a CBA between the Sheet Metal, Air, Rail and Transportation Workers Union (SMART) and electric bus manufacturer BYD for apprenticeship and pre-apprenticeship programs for jobs at BYD’s facility in Lancaster, California. This resulted in an award of around $1 million from California’s High Road Training Partnership.

Selected Examples of Environmental Provisions

Bans on specific development practices
In central Montana, Sandfire Resources—an Australian mining corporation—is constructing its Black Butte Copper Project. Under a Mining Practices Agreement between Sandfire and the Meagher County Stewardship Council, a local community group, the company has agreed not to pursue open-pit mining during any phase of the project on any parcel of land within its operations. 

Net-positive benefits beyond compensatory mitigation
Negotiated between a developer and a coalition of over 20 community organizations, the CBA covering the Los Angeles Sports and Entertainment District Project (adjacent to the Staples Center) in downtown Los Angeles required the developer to build public green and open space as part of project construction. Community organizations identified the Figueroa Corridor, the project’s host neighborhood, as having less than one-quarter of the parkspace acreage required by the city. With the agreement’s green space provisions, park construction efforts worked to reduce this deficit.

Monitoring requirements and penalties for pollution and remediation
The Good Neighbor Agreement between Northern Plains Resource Council, a grassroots conservation group, and Sibanye-Stillwater, a multinational mining corporation, covers two platinum/palladium mines in south-central Montana. The agreement established a “Comprehensive Surface Water, Ground Water, and Aquatic Resources Protection Program,” which involves ongoing water quality monitoring for known pollutants against scientifically established baselines—stricter than requirements in Montana state law—and directs remedial actions up to a defined funding level for pollutant exceedances. The program is overseen by an oversight committee with representatives from both Northern Plains and Sibanye-Stillwater, which together review the water quality program and approve of any remedial steps.

See also: Los Angeles World Airports CBA

Funding of third-party studies and capacity-building for analyzing project impacts
The Northern Plains Resource Council/Sibanye-Stillwater Good Neighbor Agreement (see above) directs Sibanye-Stillwater to annually fund third-party studies assessing fisheries populations in downstream sections of the Stillwater and Boulder rivers, the watersheds in which the company is mining. Both rivers are blue-ribbon trout streams and well-known whitewater runs that are important for the local tourism economy. 

Plans for phasing out and shutting down through reclamation and decommissioning
In the 2000 Environmental Agreement, covering the Diavik Diamond Mine (DDMI), DDMI was required to prepare and submit a Reclamation and Abandonment Plan pursuant to Canadian federal law and provide the Minister of Indian Affairs and Northern Development (an arm of the federal government of Canada) with $15 million in an initial “Security Deposit” followed by annual contributions that together summed to an amount equal to the estimated cost of mine reclamation and closure during any given year of operation. DDMI was also required to provide funding for an “Additional Security Deposit” available to the federal government in case of default by DDMI, contingencies, or other unexpected environmental liabilities. 

Selected Examples of Entrepreneurship and Local Businesses Provisions

Commitments to seek contracts with disadvantaged local business enterprises
In Morro Bay, California, Castle Wind—the developer of a proposed offshore wind farm—signed a CBA with two local fishermen’s associations. Under the agreement, the fishermen’s associations were given the right of first offer to provide certain qualified services to Castle Wind during the construction and operation of the offshore wind project. The proposed wind farm never came to fruition because Castle Wind was outbid for an offshore wind lease with the Bureau of Ocean Energy Management in an auction for the call areas.

Encourage and protect local businesses
The CBA for the Kingsbridge National Ice Center in the Kingsbridge Armory in the Northwest Bronx requires the development of a Local Procurement Plan with commitments to “make all diligent efforts, in good faith, to ensure at least 51%, but in no event shall less than 25%, of total procurement to come from Local Businesses.” Similar provisions are applied to minority- and women-owned businesses. The agreement also requires the developer to join a local business improvement district, if one is established, while also committing not to lease space to or contract with any chain fast-food stores or big box stores.

Microbusiness incubator
The 2018 Nashville MLS Soccer CBA between Stand Up Nashville, Inc. and Nashville Soccer Holdings includes a commitment for 4,000 square feet of retail space that will include a microbusiness incubator for artisans and small-business merchants who are verified local residents.   

Selected Examples of Community Facilities and Infrastructure Provisions

Upgrades to community spaces
CBAs can help communities be more by addressing long-term maintenance issues and contributing to tourism. The 2014 CBA between Footprint Power Salem Harbor Real Estate LP; Footprint Power Salem Harbor Development LP; and the City of Salem, Massachusetts, requires a maintenance plan for publicly accessible areas to be in place prior to the commencement of other specific construction activities. It also requires signage/environmental graphics “to encourage public access and draw visitors from the historic portion of the harbor walk to the non-plant portion of the site.” Footprint RealCo will cover the costs of these upgrades and coordinate the design, placement, and timing of signage with the city’s Planning Department.

First responder training
The Trailblazer C02 Pipeline CBA (2024), in response to concerns over the unique risks associated with the pipeline, commits $200,000 for the development and deployment of a First Responder C02 Training Program. For added community protections regarding the validity of the training and assurances that it will occur, the Nebraska Department of Emergency Management, the Nebraska Fire Marshal, and the Nebraska Volunteer Fire Association will review the curriculum and training deployment schedule. Efforts will also be made to have the curriculum added to the annual Nebraska fire school training curriculum.

Childcare
The 2018 Nashville MLS Soccer CBA, between community coalition Stand Up Nashville, Inc and Nashville Soccer Holdings (NSH), will direct the developer to reserve 4,000 square feet within or near the development for a childcare location. NSH will also provide startup seed capital to help get the facility up and running.  

Defining Your Priority Benefits

Once you have reviewed the example provisions in each category above, you can use Worksheet 4C—Defining and Prioritizing Community Benefits to begin to prioritize which specific provisions your community is most interested in negotiating. You may wish to first revisit Worksheet 3B—Identifying Priorities for CBA Engagement in Section 2 to recall the community’s needs and priorities.

Enforcement Provisions: How to Make Sure the Company Follows the Agreement

Clear Commitments

Addressing the many challenges of enforcement begins with clear descriptions of the commitments made, including specific metrics for evaluating whether those commitments are fulfilled.  

• The CBA should contain all the essential details about the provision.  

• Pay particular attention to the who, how, and when of the agreement. This includes identifying who is responsible for providing the benefits; how this work will be funded; establishing contingencies for unanticipated impediments; and setting metrics for quality, quantity, and timelines.

• Utilize the expertise of your Technical Advisory Group to ensure the CBA does not contain vague, unclear, or inconsistent language. One approach is to work backward when analyzing a CBA provision and consider what evidence you would need to present if the coalition had to take the project sponsor to court to enforce a provision. As discussed in other areas of this chapter, lawsuits are often not the best remedy; the courtroom scenario is being used as an effective analysis tool. 

Annual Review

Circumstances and standards of practice change over time. The CBA should include provisions for its periodic review among responsible parties and others who may be involved in its implementation and evaluation.  

• One option is to have a trusted local government or regulatory entity convene an annual review. Even if the local government has no specified enforcement role in the CBA, there is no limitation on it discussing outcomes in the community. Meetings and hearings of government bodies increase transparency and accountability of all parties.

• The CBA should coordinate these reviews with implementation milestones and provisions related to monitoring and reporting. Having a previously designated review process reduces the negative connotations associated with it and may motivate companies to take action so they have good things to report during this very public venue.  

Disputes

Even when making progress, disputes will likely arise during the CBA’s implementation. Having a specific process for any party to the agreement to raise issues and the other party having the right to address the problem within a clear timeline may help resolve issues quickly before they threaten a full breach of the contract.  

• You will want to have a clear dispute resolution process detailed in the CBA.  

• A typical dispute process is to first commit all parties to acting in “good faith” and then requiring informal discussions prior to mediation and then arbitration.  

• In some cases, you will want to be specifically authorized to remedy the problem yourself (with compensation)—should the company fail to act—and, in other cases, retain the ability to seek a remedy through litigation.

• This is an important policy area to discuss with your attorney. Worksheet 3B helps collect input from fenceline communities and other impacted groups, and Worksheet 2B includes research prompts about the company and its previous dispute resolution activities.

Enforcement Costs

The costs of investigating complaints of noncompliance can be a barrier for some coalition members; therefore, consider specifying in the CBA that these costs can be covered by one of the funds established through the agreement. Furthermore, while each party will initially bear the costs of mediation and litigation, the CBA can provide that, upon resolution, the party at fault will reimburse the other party’s costs. Below we include several examples of dispute resolution provisions.

Selected Examples of Enforcement Provisions

Dispute resolution process and/or arbitration clause(s)
A Host Community Agreement (HCA) between offshore wind developer Vineyard Wind and the town of Barnstable, Massachusetts, established a dispute resolution in the event of a conflict between the parties. The resolution sets time frames for requesting a mediation process, selecting a mediator, and outlines options in the event mediation is unsuccessful. The framework allows for judicial relief (i.e., litigation) only after all other options, including mediation, have been exhausted. 

A HCA between the town of Perinton and Waste Management New York, LLC (2021) provides for recovering costs for taking legal steps to enforce provisions. “If the Dispute is not resolved through the mediation process, either party may thereafter institute a suit in a court of competent jurisdiction. If any litigation is commenced under this HCA, the successful party shall be entitled to recover, in addition to such other relief as the court may award, its reasonable attorneys’ fees, expert witness fees, litigation-related expenses, court costs, and other costs incurred in such litigation or proceeding.”

Transparency, mandated sharing and reporting requirements, and outline of penalties or legal obligations for not adhering to CBA
The 2022 agreement between the Greater Birmingham Ministries, Jobs to Move America, and the electric bus manufacturer New Flyer for their facilities in Anniston, Alabama, includes detailed language about how specific provisions of the agreement may be amended and waived without constituting a waiver of any other provisions.

Identification of who is responsible for periodic review and CBA enforcement
In Menlo Park, California, a Community Compact between Facebook and a coalition of local community organizations clearly stipulates each party’s commitments as part of the compact, the creation of a working group with equal representation from both parties, and a clearly defined enforcement clause.

Assumption of contract obligations in the event of acquisition, bankruptcy, foreclosure, etc.
A Host Community Agreement between the city of Portsmouth, Rhode Island, and South Coast Wind LLC., an offshore wind developer, includes language that clarifies that the agreement is binding to both parties, their respective affiliates, successors, and assigns.

Ability to reopen or renegotiate contingent on environmental review
Chevron Modernization Project Environmental and Community Investment Agreement, Richmond, California. This agreement is renegotiated upon renewal of key operating permits with the city.

Having a corrective action plan
The Community Benefits Program Agreement for the Kingsbridge National Ice Center, located in the Kingsbridge Armory in the Northwest Bronx, includes provisions that require corrective action plans with timelines when certain CBA requirements are not met. These include when an employer fails to meet the hiring requirements during any 6-month period. The CBA also specifies the role of the Community Advisory Committee if the employer fails to complete the Hiring Corrective Action Plan for a year.

Table 12 also includes examples of provisions about reopening CBAs for further negotiations and/or amendment. There are multiple reasons to consider allowing amendments; however, fenceline communities should be clear about their objectives, have legal counsel, be prepared, and possess the capacity to engage. It may be helpful to revisit and perhaps refresh several worksheets, including Worksheet 2B—Information Gathering on Project and Developer, Worksheet 3B—Identifying Priorities for CBA Engagement, Worksheet 3A—Information Gathering on Community Capacity to Engage, and Worksheet 4C—Defining and Prioritizing Community Benefits.

Relative to language, a starting place for amendment provisions includes, “The Agreement may be modified, supplemented, or amended in writing by the Parties. Any modification, supplementation, amendments, or waiver that would materially affect the rights of either Party shall be signed by both Parties.” Another and shorter option is, “This CBA may not be altered, amended, or modified, except by an instrument in writing signed by the parties.”

Force Majeure, aka Unforeseen Circumstances that Prevent CBA Fulfillment

Natural disasters and changes in law are examples of unforeseen circumstances that prevent a party to the CBA from fulfilling its contractual obligations. When one of these significant force majeure situations occurs, the agreement usually states that the affected party is relieved of its directly related commitments, including any impacts on the other party.

To protect community coalition members, the CBA should include a process for the affected party to identify the elements of the agreement impacted by these unforeseen circumstances and initiate negotiations on appropriate modifications to the CBA terms to recapture some, if not all, of the lost benefits. Here is an example of these provisions: “If and to the extent that either party is prevented from performing its obligations hereunder by an event of force majeure, such party shall be excused from performing hereunder and shall not be liable in damages or otherwise, and the parties instead shall negotiate in good faith with respect to appropriate modifications to the terms hereof.”

It is common for the force majeure provisions to include an illustration of causes that are beyond the reasonable control of the affected party, including an action of a court, a regulatory authority, or other public authority having jurisdiction over an element in the CBA or the project; a range of natural disasters, such as storms, floods, fires, earthquakes; and human-caused disasters, such as explosions, civil disturbances, labor disputes, or act of a public enemy.

Decommissioning, Closure, & Post-Closure Provisions

This is a very important part of the CBA and one that often gets very little attention. We have included questions about closure in Worksheet 3B—Identifying Priorities for CBA Engagement, Worksheet 4C—Defining and Prioritizing Community Benefits, and Worksheet 4A—Guiding Questions to Move from Community Engagement to Negotiation Strategy. As you use these tools with fenceline community and other coalition members, here are two suggestions for taking a deeper dive:

• Consider starting to ask questions about the developer’s closure plans early and often (including before, during, and after CBA negotiations), because these plans should influence project design as well as the expected risks and burdens placed on local communities. Consider also asking about the developer’s contingency planning and whether they should close or sell the site earlier than planned. Information gathering on both fronts can help the community prepare for effective monitoring and evaluation.

• Consider how any provisions—such as mining payments, environmental monitoring, hiring requirements, or local infrastructure investments—will continue following the mine or project site closure. Consider solutions to prevent or remedy the closure’s short- and long-term impacts on local economies, natural resources, public health, and social relations. For example, these could include alternative income-generation measures or continued delivery of social or environmental services.

When it comes to drafting your decommissioning provisions, trusted local governments—in some cases—can be an important ally. With the company gone, the local government will want to be sure that the property can be resold and used for purposes that benefit the community. It should not want the closure to be a trigger for the property and the surrounding areas to be blighted or become a superfund site. In addition, both fenceline communities and local officials would be unhappy with large numbers of workers being laid off without significant notice and company-paid retraining. A best practice is to require the development of a Decommissioning and Site Restoration Plan as well as consequences for failure to complete the plan successfully. The development of the plan and requirements could be included as conditions in government approvals.

For any community development or investment to be considered a “community benefit” in good faith, the developer should carry the responsibility to sustain those programs or investments or else accept a community-supported plan to take over. Otherwise, these “benefits” provisions represent, at best, a mere transaction for social license to operate.

Severability Provisions

A severability clause can protect both the project sponsor and the community coalition should one or more components of the CBA be found unconstitutional, void, or unenforceable by a court of law. The severability clause contains two key concepts: first, that each of the agreement’s provisions is independent of the others (unless specifically linked) and, second, that the contract remains valid and enforceable even if specific provisions are deemed invalid.

For example, a CBA may contain a clause that violates a federal or state law; the severability clause ensures that the rest of the contract remains in force. Given recent changes in laws that may occur as a result of a new US federal administration, especially on issues relating to civil rights and the treatment of vulnerable fenceline communities, there may be specific provisions related to hiring practices that could become unlawful to implement.  A severability clause will enable CBA negotiations to address a full range of issues without concern that a single change in US law will render the entire agreement null and void.

Severability clauses may be detailed, as in this example, “If a provision of this Agreement is or becomes illegal, unenforceable, or invalid in any jurisdiction, it shall not affect (1) the enforceability or validity in that jurisdiction of any other provision of this Agreement, or (2) the enforceability or validity in other jurisdictions of that or any other provision of this Agreement.” A simplified version of the severability clause may read: “If any provision of this agreement is held to be invalid or unenforceable, such provision shall be severed from this agreement, and the remaining provisions shall remain in full force and effect.”

The severability clause is just one part of addressing policy uncertainties. The Guiding Principles section of the CBA, as well as the force majeure section (discussed above), should also include specific provisions addressing what happens if a CBA provision becomes unenforceable.

While a severability clause can protect the overall integrity of the agreement and reduce legal uncertainties on implementation, there are also some issues you may not want to be covered by severability. Specific provisions may be so crucial to a community that the continuation of the CBA is untenable if the provisions are removed from the agreement. Should this be true for your group, a severability clause can “specify that some provisions of a contract are so vital to its purposes that, if they are found to be unenforceable or illicit, the contract as a whole must be found to be illicit or unenforceable.” 

Legal Terms Used in CBAs

When negotiating a CBA, community partners may come across unfamiliar terms. Black’s Law Dictionary is a free website where you can look up legal terms and later discuss them with your attorneys. Don’t be intimidated by legal jargon; you should also have legal counsel to guide you in drafting and reviewing your CBA. Having a basic understanding of these terms can help you communicate more effectively with your lawyer or attorney. 

Action Items

Reach out to environmental justice or other trusted partners and ask for referrals for legal representation.

Hold a teach-in to help the CBA Support Team gain a better understanding of the format, structure, and content of CBAs. Different team members can be asked to become familiar with one to two of the case studies and sample CBAs and then present them to the group. Worksheet 5A can be used to take notes and later help organize your discussions and decisions on CBA provisions.