Exhibit 10.32
AGREEMENT NO. 47189-3
BETWEEN
THE DEPARTMENT OF WATER AND POWER
OF THE CITY OF LOS ANGELES
AND
APPLIANCE RECYCLING
CENTERS OF AMERICA - CALIFORNIA INC.
SEPTEMBER 24, 2002
APPLIANCE RECYCLING AGREEMENT
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Table of Contents
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Section Title Page
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1.0 AGREEMENT.....................................................2
2.0 RECITALS......................................................2
3.0 DEFINITIONS...................................................3
4.0 STATEMENT OF WORK.............................................5
5.0 GENERAL CONDITIONS............................................8
6.0 COMPENSATION..................................................14
7.0 BUSINESS POLICIES.............................................15
8.0 INSURANCE REQUIREMENTS........................................19
9.0 INVOICES......................................................23
10.0 CONFLICTS.....................................................24
11.0 MONITORING OF WORK............................................24
12.0 TITLE TO WORK.................................................25
13.0 SECTION HEADINGS..............................................27
14.0 SIGNATURE OF AUTHORIZING AGREEMENT............................28
APPLIANCE RECYCLING AGREEMENT
1.0 AGREEMENT
1.1 PARTIES
This Agreement is made and entered into by and between
APPLIANCE RECYCLING CENTERS OF AMERICA - CALIFORNIA (ARCA),
INC. 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000,
(hereinafter referred to as "Contractor") and the Department
of Water and Power of the City of Los Angeles (hereinafter
referred to as "Department"); Contractor and the Department
are sometimes hereinafter referred to individually as "Party"
and collectively as "Parties'.
2.0 RECITALS
The Agreement is entered into with reference to the following facts,
among others:
2.1 The Department desires to promote energy efficient
refrigerators to its customers through its Low Income
Refrigerator Exchange Program (LIREP), which provides free
super efficient refrigerators (New Refrigerators) to
qualifying customers in exchange for their older, working
refrigerators, which will be recycled.
2.2 The Department also desires to remove older working
inefficient second Refrigerators and Freezers (Second
Refrigerators and Freezers) through its Refrigerator Turn-In
and Recycling Program (RETIRE) that qualifying Customers
turn-in for recycling and disposal.
2.3 The Department envisions implementing the LIREP and RETIRE
Programs for the purpose of saving energy, reducing peak
demand, lowering Department customers' energy bills,
transforming the market for energy-efficient appliances and
providing additional public environmental benefits.
2.4 The Department desires that the Contractor provide services to
ensure the safe, effective, and lawful recovery and recycling
or lawful disposal, as necessary, of HCFC/CFC refrigerants,
CFC-11 foam insulation blowing agent, PCBs, mercury, used oils
and any other Hazardous Materials found in older inefficient
Refrigerators and Freezers, as well as the recycling of all
scrap metals.
2.5 The Department has solicited responses from potentially
qualified vendors through a Request for Proposals and has
determined that the Contractor is the party best qualified to
provide the Department with the required appliance recycling
services in support of the above programs and is qualified to
provide other related services described in this agreement.
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3.0 DEFINITIONS
The following terms, whether in the singular or in the plural, when
used in this Agreement, shall have the meanings specified:
3.1 Agreement: This document, the terms and condition contained in
this agreement as may be amended and supplemented.
3.2 Appliance Delivery and Removal Contractor: The entity
contracted by the Department to deliver New Refrigerators and
pick-up replaced Primary or Second Refrigerators and Freezers
from Program Participants.
3.3 Approved Customers: Those entities approved to participate in
the LIREP or RETIRE programs based on established eligibility
criteria set by the Department. Such entities may include
residential, multi-family residential and low-income customers
of the Department.
3.4 CFCs/HCFCs: Chlorofluorocarbon and Hydrochlorofluorocarbon
refrigerants found in Refrigerator and Freezer cooling
systems.
3.5 CFC-ll: Chlorofluorcarbons contained in Refrigerator and
Freezer insulating foam.
3.6 Change Order: document issued by the Department to Contractor
to change the Agreement.
3.7 Contract Administrator: The Department's authorized
representative for this Agreement as specified in Section 5.5.
3.8 Contract Period: The period beginning with the time of
effectiveness date as defined in Section 5.1.4, and extending
through October 31, 2005, or as extended by mutual agreement
of the Parties.
3.9 Documentation: Specifications, procedures, instructions,
reports, test results, analyses, calculations, manuals, and
other data specified in this Agreement, and any amendment to
this Agreement, as required by any legal entity having
jurisdiction over the Work.
3.10 Freezer: A freezer which provides supplementary cold storage
to a primary freezer or to the freezer section located within
the Primary Refrigerator in a residential household.
3.11 Hazardous Materials: Any substance or material which has been
designated as hazardous or toxic by the U.S. Environmental
Protection Agency or the California Department of Toxic
Substances Control now or hereinafter authorized to regulate
materials in the environment, including, but not limited to
"Materials which require special handling," as defined in
California Public Resources Code and the California Health and
Safety Code, which is contained in or is derived from the
Refrigerators or Freezers.
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3.12 "Low-Income Refrigerator Exchange Program": Department Program
that is supported by Work covered by this Agreement, also
referred to as LIREP Program.
3.13 Mercury: Mercury-containing Components such as lid
tilt-switches found in Freezers.
3.14 PCBs: Polychlorinated Biphenyls.
3.15 Primary Freezer: Freezer utilized by the Customer as the
principal means of storing frozen foods in the residence.
3.16 Primary Refrigerator: Refrigerator utilized as the principal
means of storing frozen foods in the residence.
3.17 Programs: Incentive Programs such as the LIREP and RETIRE
Programs or other Programs that may be implemented by the
Department for the purpose of promoting energy efficient
appliances to its customers and the removal and
environmentally sound recycling of replaced older, inefficient
appliances from the Department Customers' residences.
3.18 Program Participants: Approved Customers selected by the
Department to participate in the Program who agree to turn in
old Primary Refrigerators and/or Second Refrigerators or
Freezers.
3.19 Recycling Center: The site at which Refrigerators and Freezers
are processed in an environmentally sound manner to legally
remove, dispose of and/or recycle CFCs, CFC Foam Insulation,
HCFCs, CFC 11, PCBs, mercury, used oils, and other Hazardous
Materials.
3.20 Refrigerator Turn-In and Recycling Program (RETIRE):
Department Program that is supported by Work covered by this
Agreement, also referred to as RETIRE Program.
3.21 Second Freezer: Surplus or spare freezer utilized by Approved
Customer concurrently with primary refrigerator and/or
freezer.
3.22 Second Refrigerator: Surplus or spare refrigerator utilized by
Approved Customer concurrently with primary refrigerator.
3.23 Subcontractor: An entity contracting directly with Contractor
to furnish services or materials as part of, or directly
related to, the Work.
3.24 Work: Any and all obligations of Contractor to be performed
pursuant to this Agreement which includes but is not limited
to: (1) Proper removal
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and management of CFC/HCFC refrigerants, CFC-ll found in foam
insulation blowing agent, PCBs, mercury, and used oils from
collected Refrigerators and Freezers; 2) handling, storage and
legal disposal of removed Hazardous Materials; 3) recycling of
metals, CFCs,/HCFCs, CFC 11, mercury, used oils and all other
materials that can be recycled and 4) proper disposal of all
materials that cannot be recycled in an environmentally sound
manner and in accordance with all applicable laws.
4.0 STATEMENT OF WORK
4.1 Services to be Performed
The Contractor hereby agrees to provide the following services
to the Department pursuant to the terms and conditions of this
Agreement:
4.1.1 Assist the Department in developing and implementing
Program protocols, procedures and coordination
activities for: 1) Contractor's employees and
subcontractors and 2) Department employees and
subcontractors;
4.1.2 Receive from the Department's Appliance Delivery and
Removal Contractor Primary Refrigerators and/or
Second Refrigerator or Freezers turned-in by Program
Participants for recycling and/or disposal;
4.1.3 Recycle all removed Refrigerators and Freezers
including: 1) Proper removal and management of
CFC/HCFC refrigerants, CFC-11 found in foam
insulation blowing agent, PCBs, mercury, and used
oils from collected Refrigerators and Freezers; 2)
handling, storage and legal disposal of removed
Hazardous Materials; 3) recycling of metals,
CFCs,/HCFCs, CFC 11, mercury, used oils and all other
materials that can be recycled and 4) proper disposal
of all materials that cannot be recycled in an
environmentally sound manner and in accordance with
all applicable laws; and
4.1.4 Provide reporting to the Department as specified herein.
4.2 Program Mechanics
4.2.1 The Department's Appliance Delivery and Removal
Contractor shall collect and transport to the
Recycling Center all Primary and Second Refrigerators
and Freezers turned-in by Program Participants.
4.2.2 The Contractor shall receive and accept all Primary
Refrigerators and/or Second Refrigerator or Freezers
turned-in for proper disposal and/or recycling as
specified in this Agreement.
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4.2.3 Documentation and records of all refrigerators and
freezers received, services provided and work
performed shall be maintained by the contractor and
included in the monthly reports to the Department as
specified herein.
4.3 Contractor's Responsibilities
4.3.1 Warranty
Contractor warrants to the Department that the Work
shall be performed in a competent manner, in
accordance with this Agreement, and that the that the
handling, storage, recycling, and disposal of the
Primary/Second Refrigerators and Freezers and
Hazardous Materials shall be in accordance with (a)
the requirements of this Agreement and (b) applicable
local, state, and federal laws and regulations in
effect at the time the work is performed.
4.3.2 Contractor shall be solely responsible for all
methods, techniques, sequences, and procedures for
the recovery, storage and disposal and/or recycling
of all CFCs/HCFCs, CFC-11, PCBs, mercury, used oil,
scrap metals, and hazardous materials found in
Refrigerators and Freezers turned-in by Program
Participants.
4.3.3 Contractor shall document and maintain records for
services under this Agreement as follows:
a) A monthly Reporting System for recording,
documenting and reconciling
Refrigerator/Freezer deliveries made by the
Department's Appliance Delivery and Removal
Contractor.
b) Program Work Order Form to collect data such
as:
i) Primary/Second Refrigerator or
Freezer manufacturer's name and
quantities;
ii) Primary/Second Refrigerator or
Freezer style, defrost type, size
and estimated age;
iii) Identification of Primary/Second
Refrigerators and Freezers
containing CFC-11 foam insulation;
4.3.4 Compilation of data in Section 4.3.3 shall be in
electronic mode, employing the Contractor's Database
software program with online and real-time access
capability. Data shall be provided to
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the Department in both hard copy and electronic
format (e.g. Microsoft Excel) acceptable to the
Department.
4.4 Reporting Requirements
Contractor shall provide the Department with reports for the
services performed under this Agreement as follows:
4.4.1 A monthly report, provided no later than the fifteen
(15) days following the end of the previous month,
listing the number of Primary and Second
Refrigerators or Freezers processed through the
Recycling Center during the previous month and
containing size in cubic feet, year of manufacture,
style, age and defrost type of each Primary/Second
Refrigerator or Freezer.
4.4.2 A quarterly report, presented within fifteen (15)
days of the new quarter, which shall include, but not
limited to:
a) An estimated breakdown of the amount of
refrigerant recovered (in pounds by type);
b) An estimated breakdown of the number of
pounds of capacitors recovered;
c) A breakdown of the number and size of
polyurethane- foam containing refrigerators
or freezers which were processed for CFC-11
recovery (in pounds of CFC-11 recovered);
d) An estimated weight of metals and recyclable
materials;
e) An estimate of the Monthly subtotal and
cumulative annual energy consumption for all
refrigerators recycled under this Contract
to date; and
4.4.3 Program summary reports provided no later than
fifteen (15) working days following the end of a
twelve month period specified by the Department,
covering all the activities requested in the monthly
reports plus information from any incomplete month.
4.4.4 Special and Non-recurring Reports
Upon reasonable written request from an authorized
representative of the Department, Contractor may be
asked to prepare special and nonrecurring reports
during course of the Program. Such report content may
be developed by the parties in anticipation of
requests from the Board, internal Department audits,
or compilation of data relevant to program
activities.
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5.0 GENERAL CONDITIONS
5.1 Integrated Agreement
This Agreement sets forth all of the rights and duties of the
parties with respect to the subject matter hereof, and
replaces any and all previous agreements, or understandings,
whether written or oral, relating thereto.
This Agreement may be amended only as provided for in
paragraph 5.1.1 hereof.
5.1.1 Amendment. All amendments hereto shall be in writing
and signed by the persons authorized to bind the
parties thereto.
5.1.2 Prohibition Against Assignment or Delegation
The Contractor may not, unless it has first obtained
the written permission of the Department, which may
be withheld for any reason:
a) assign or otherwise alienate any of its
rights hereunder, including the right to
payment, or
b) delegate, subcontract, or otherwise transfer
any of its duties hereunder.
5.1.3 Non-Waiver of Agreement
The Department's failure to enforce any provision of
this Agreement or the waiver thereof in a particular
instance shall not be construed as a general waiver
of any part of such provision. The provision shall
remain in full force and effect.
5.1.4 Time of Effectiveness
Unless otherwise provided, this Agreement shall take
effect when all the following events have occurred:
a) this Agreement has been signed on behalf of
the Contractor by the person(s) authorized
to bind the Contractor hereto;
b) this Agreement has been signed on behalf of
the Department by the person designated by
the Board, officer or employee authorized to
enter into this Agreement;
c) the Office of the City Attorney has
indicated in writing its approval of this
Agreement as to form and legality; and
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d) this Agreement has been approved by the
City's Councilor by the Board, officer, or
employee authorized to give such approval.
5.1.5 Independent Contractor
The Contractor is acting hereunder as an independent
contractor and not as an agent or employee of the
Department. The Contractor shall not represent or
otherwise hold out itself or any of its directors,
officers, partners, employees, or agents to be an
agent or employee of the Department.
5.1.6 Applicable Law, Interpretation, Enforcement and
Severability.
Each party's performance hereunder shall comply with
all applicable laws of the United States of America,
the State of California, and the City of Los Angeles.
This Agreement shall be enforced and interpreted
under the laws of the State of California and the
City of Los Angeles with venue for any litigation in
Los Angeles, California.
If any part, term or provision of this Agreement
shall be held void, illegal, unenforceable, or in
conflict with any law of a Federal, State, or Local
Government having jurisdiction over this Agreement,
the validity of the remaining portions or provisions
shall not be affected thereby.
5.2 Personnel
5.2.1 Staff Size
The size of the staff employed by the contractor in
the performance of the services shall be kept
consistent with the services and schedules as
described in this Agreement.
5.2.2 Identification of Key Personnel
The Contractor shall furnish the Department the
names, titles, and qualifications of its key project
personnel.
5.2.3 Approval of Key Personnel
The Contract
Administrator will have the right to interview and
approve personnel. Resumes of individual personnel
will be reviewed and approved by the Department's
Contract Administrator before the individual can be
assigned work.
5.2.4 Changes in Key Personnel
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The Contractor shall minimize changes to key project
personnel. The Department shall have the right to
request key personnel changes and to review and
approve key project personnel changes proposed by the
Contractor. The Department's approval of key
personnel assignments and changes shall not be
unreasonably withheld.
5.3 Subcontractors
5.3.1 Subcontracts/Joint Participation Agreement
With prior approval of the Department, the Contractor
may enter into subcontracts and joint participation
agreements with others for the performance of
portions of this Agreement. The Contractor shall at
all times be responsible for the acts and errors or
omissions of its subcontractors or joint participants
and persons directly or indirectly employed by them.
Nothing in this Agreement shall constitute any
contractual relationship between any others and the
Department or any obligation on the part of the
Department to pay, or to be responsible for the
payment of, any sums to any subcontractors.
5.3.2 Copies of Subcontractor Agreement
Upon written request from the Contract Administrator,
the contractor shall supply the Department with all
subcontractor agreements.
5.3.3 Provisions Binding on Subcontractors
The provisions of this Agreement shall apply to all
Subcontractors providing service in connection with
the Work to be bound by general terms and conditions
protecting the Department which are equivalent to the
terms and conditions of this Agreement. In particular
the Department will not pay, even indirectly, the
fees and expenses of a subcontractor which do not
conform to the limitations and documentation
requirements of this Agreement.
5.4 Contractor's Quality Assurance Program
The Contractor shall perform the work in accordance with the
Contractor's Quality Assurance Program, which shall be subject
to review, approval, and audit by the Department. The
Contractor's work shall reflect competent professional
knowledge, judgment, and accepted industry practice. The
Contractor shall promptly correct, or remedy any work, errors
or omissions, at its sole expense, which do not conform to the
provisions of this Agreement.
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5.5 Representatives and Notices
Any notice, demand, or request directed to the Department
shall be delivered to:
DEPARTMENT OF WATER AND POWER
CITY OF LOS ANGELES
Xxxxxxxx X. Xxxxx
Contract Administrator
000 Xxxxx Xxxx Xxxxxx, Xxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Any notice, demand, or request directed to the Contractor
shall be delivered to:
APPLIANCE RECYCLING CENTERS OF AMERICA -
CALIFORNIA, INC.
Xxx Xxxxxx
General Manager - ARCA California
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Such correspondence shall be in writing, except as specified
elsewhere in this Agreement. General correspondence will be
deemed complete upon receipt.
5.5.1 Change of Address or Representatives
Either party, by written notice, may designate
different or additional person(s) or different
addresses.
5.5.2 Excusable Delays
In the event that performance on the part of any
party hereto shall be delayed or suspended as a
result of circumstances beyond the reasonable control
and without the fault and negligence of said party,
none of the parties shall incur any liability to the
other parties as a result of such delay or
suspension. Circumstances deemed to be beyond the
control of the parties hereunder shall include, but
not be limited to acts of God or the public enemy;
insurrection; acts of the Federal Government or any
unit of State or Local Government in either sovereign
or contractual capacity; earthquakes, fires; floods;
epidemics; quarantine restrictions; strikes; freight
embargoes or delays in transportation; to the extent
that they are not caused by the party's willful or
negligent acts or omissions, and to the extent that
they are beyond the party's reasonable control.
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5.5.3 Breach
Except for excusable delays, if any party fails to
perform, in whole or in part, any promise, covenant,
or agreement set forth herein, or should any
representation made by it to be untrue, any aggrieved
party may avail itself of all rights and remedies, at
law or equity, in the courts of law. Said rights and
remedies are cumulative of those provided for herein
except that in no event shall any party recover more
than once, suffer a penalty or forfeiture, or be
unjustly compensated.
5.6 Permits, Codes, And Statutes
5.6.1 Contractor shall perform the Work set forth in this
Agreement in accordance with all applicable Federal,
state, and local laws, rules, and/or ordinances.
Prior to performance of any services, Contractor
shall, at its own cost, have obtained, and shall have
required all Subcontractors to obtain, all licenses
and permits required by law, rule, regulations, and
ordinance, or any of them, to engage in the
activities required in connection with this
transaction.
5.6.2 Contractor shall comply with all applicable local,
state, and federal safety and health laws in effect
in the date of this agreement, including, but not
limited to EPA, California EPA, RCRA, the
Occupational Safety and Health Act of 1970 (OSHA),
and all standards, rules, regulations, and orders
issued pursuant to such local, state, and federal
safety and health laws. Should any such law, rule, or
regulation be enacted or promulgated subsequent to
the date of this Agreement, which renders
Contractor's performance impractical, Contractor and
the Department shall amend this Agreement to
reasonably compensate Contractor for its additional
costs.
5.7 Suspension and Termination
5.7.1 Suspension of Work
The Contract Administrator may orally direct the
Contractor to suspend, and to subsequently resume
performance of all or any part of the work. Such
direction shall be confirmed by a Change Order or a
revision to a task assignment if such suspension
impacts the cost of the work and/or work completion
schedule. The Department shall complete the payments
due for the suspended work up to the effective date
of suspension notice and shall resume payments
effective as of the work resumption date.
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5.7.2 Termination of Agreement
5.7.2.1 Cancellation Without Cause
This Agreement may be canceled by the
Department, without cause, on 30 calendar
days' written notice or at any time by
mutual agreement of the parties. Said
notice, on the Department's behalf, will be
given by the Contract Administrator. Upon
receipt of such notice, the Contractor shall
immediately stop all work under this
agreement. The Contractor shall be entitled
to payment for all services performed to
date of cancellation and shall be
compensated at the established rates for
completing all task assignments and work in
progress as of the date of receipt of the
written cancellation notice. The Contractor
shall then deliver to the Department, in an
organized and usable form, all work done
prior to the date of cancellation.
5.7.2.2 Termination Due to Expenditure Limit
This Agreement will automatically terminate
if expenditures reach the limit of
$1,750,000.00
5.7.2.3 Expiration of Agreement
Unless amended by mutual agreement of the
Parties, this Agreement expires on October
31, 2005.
5.7.2.4 Termination of the Services of any Person.
If the Department no longer requires the
services of a particular person(s) supplied
by the Contractor, the Department may
terminate the services immediately upon
written notice to the contractor.
5.8 Patents, Copyrights and Trademarks
The Contractor shall fully indemnify the Department against
any and all liability whatsoever by reason of any alleged
infringement of any patent, copyright, or trademark on any
hardware, software, firmware, equipment or instrumentation
used by the Contractor in the construction of the work, or by
reason of any intended use under these specifications by the
Department of any hardware, software, firmware, equipment or
instrumentation furnished under this contract; provided,
however, that the contractor shall have no liability to the
Department under any provision of this Article with respect to
any claim of patent, copyright, or trademark infringement
which is based upon the combination or utilization of the
Contractor's hardware, software, firmware, equipment or
instrumentation
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with hardware, software, firmware, equipment or
instrumentation not made by the Contractor; or the
modification by the Department of hardware, software,
firmware, equipment or instrumentation furnished hereunder.
The Contractor shall have the sole control of the defense and
all negotiations for settlement or compromise of any action or
claim of any alleged infringement of any patent, copyright, or
trademark on hardware, software, firmware, equipment or
instrumentation used by the Contractor in the designing,
fabrication, and delivery of the deliverables as specified
herein to the extent that such control is not consistent with
the provisions of Article IV, Section 42 of the Los Angeles
City Charter, but in any event the Contractor shall have the
right to participate fully in such defense. The Department and
the Contractor shall mutually agree to any settlement or
compromise of such action.
5.9 Express Warranty Provision
Contractor warrants that the software furnished hereunder
shall be free from significant programming errors and form
defects in workmanship and materials and shall operate in
conformity with the performance capabilities, specifications,
functions and other descriptions and standards applicable
thereto as set forth in this Agreement; and that the software
shall conform to standards generally observed in the industry
for similar software (including source code) so long as
Contractor can discharge any warranty obligations
notwithstanding such modifications or following their removal
by the Department.
6.0 COMPENSATION
6.1 Specific Rates of Compensation
Upon satisfactory performance of the services required herein,
the Department agrees to pay and the contractor agrees to
accept in full satisfaction thereof the actual cost of
services rendered payable at the rates set forth. The prices
shall remain in effect through October 31, 2005, unless
amended by mutual agreement of the Parties.
6.2 Payment - Additional Services
Payment for additional services and expenses not identified
but related to and required in the implementation of the
Programs, shall be negotiated between the parties and
implemented by an amendment to the Agreement.
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6.3 Expenditure Limits
The total amount of this Agreement shall not exceed $
1,750,000.00 without further appropriation to this Agreement
by the Board of Water and Power Commissioners of the City of
Los Angeles.
7.0 BUSINESS POLICIES
7.1 LADWP Recycling Policy
LADWP supports the use of recycled-content products of all
types. Recycled-content products help conserve natural
resources, including water and energy, and reduce demands upon
landfills.
The Contractor shall submit all written documents on paper
with a minimum of 30 percent post-consumer recycled content.
Existing company/corporate letterhead/stationery that
accompanies these documents is exempt from this requirement.
Documents of two or more pages in length shall be
duplex-copied (double-sided pages). Neon or fluorescent paper
shall not be used in any written documents submitted to the
Department.
7.2 Affirmative Action
During the performance of any contract, the Contractor shall
not discriminate in its employment practices against any
employee or applicant for employment because of race,
religion, national origin, ancestry, sex, age or physical
handicap. All subcontracts awarded under such contract shall
contain a like nondiscrimination provision. The applicable
provisions of Executive Order NO. 11246 of September 24. 1965;
Part 60-741 of 41 CFR pertaining to handicapped workers,
including 60-741.4 Affirmative Action Clause; and Section 10.8
to 10.13 of the Los Angeles Administrative Code pertaining to
nondiscrimination in employment in the performance of City
contracts are incorporated herein by reference and made a part
hereof as if they were fully set forth herein.
7.3 Minority and Women Business Enterprise (MBE/WBE) Outreach
Program
It is the policy of the Department to provide Minority
Business Enterprises (MBEs), Women Business Enterprises (WBEs)
and all other business enterprises an equal opportunity to
participate in the performance of all Department contracts.
The Contractor shall assist the Department in implementing
this policy and shall use its best effort to attain MBE and
WBE participation of 15 percent and 7 percent, respectively,
and to ensure that all available business enterprises,
including MBEs and WBEs, have an equal opportunity to compete
for and participate in the work of this agreement.
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7.3.1 MBE/WBE Defined
"Minority Business Enterprise" (MBE) or "Women
Business Enterprise" (WBE), as used herein means a
business enterprise that meets both of the following
criteria:
a) A business that is at least 51 percent owned
by one or more minority person(s) or women
or, in the case of any business whose stock
is publicly held, at least 51 percent of the
stock is owned by one or more minority
person(s) or women.
b) A business whose management and daily
business operations are controlled by one or
more minority person(s) or women.
7.3.2 Efforts to Obtain Participation
Efforts to obtain participation of MBEs, WBEs, and
other business enterprises could reasonably be
expected to produce a level of participation by
interested subcontractors, including 15 percent MBEs
and 7 percent WBEs. Good faith efforts to reach out
to MBEs, WBEs, and all other business enterprises
shall be determined by the following factors:
1. Meetings with MBEs, WBEs, associations
representing MBEs, WBEs and other groups.
2. Identification of selected portions of the
work to be performed by subcontractors in
order to provide participation by MBEs,
WBEs, and other business enterprises. The
contractor shall, when economically
feasible, divide total contract requirements
into small portions or quantities to permit
maximum participation of MBEs, WBEs, and
other business enterprises.
3. Requests for proposals from interested
business enterprises or proposals in
newspapers, trade association publications,
minority or trade-oriented publications,
trade journals, or other appropriate media.
4. Providing written notice to those business
enterprises, including MBEs and WBEs, having
an interest in participating in this
Agreement. The contractor shall document
that invitations were sent to available
MBEs, WBEs, and other business enterprises
for each portion of the work.
5. Documenting efforts to follow up initial
solicitations of interest by contacting the
business enterprises to determine
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whether the enterprises are interested in
participating in the work.
6. Providing interested enterprises with
information about the plans, specifications,
and requirements for the selected
subcontracting work.
7. Requesting assistance from organizations
that provide assistance in the recruitment
and placement of MBEs, WBEs, and other
business enterprises.
8. Negotiating in good faith with interested
MBEs, WBEs, and other business enterprises
and not unjustifiably rejecting proposals
prepared by any enterprise. As
documentation, the bidder shall submit a
list of all documentation, the bidder shall
submit a list of all sub bidders for each
portion of potential work for MBEs, WBEs,
and other business enterprises.
9. Documenting efforts to advise and assist
interested MBEs, WBEs and other business
enterprises in obtaining bonds, lines of
credit, or required insurance.
7.3.3 Program Documentation
The Contractor shall submit quarterly reports to the Contract
Administrator demonstrating compliance with the Department's
Outreach Program, and make related records available to the
Department upon request. The Reports shall be submitted on
Department forms which can be obtained from the Contract
Administrator, and show the following:
a) the name of each participating subcontractor;
b) description of the work each subcontractor has
contracted to perform;
c) the percentage of completion for the work under each
subcontract;
d) the compensation contracted to be paid to each
subcontractor (attach a copy of subcontractor's
invoice);
e) the cumulative compensation earned by each
subcontractor; and
f) the cumulative compensation paid to each
subcontractor.
17
7.4 Service Contract Worker Retention and Living Wage Policy
7.4.1 General Provisions
This contract is subject to the Service Contract
Worker Retention Ordinance (SCWRO), Section 10.36 et
seq, and the Living Wage Ordinance (LWO), Section
10.37 et seq of the Los Angeles Administrative Code.
The Ordinances require that, unless specific
exemptions apply, all employers who are awarded
service contracts that involve expenditures in excess
of $25,000 and have a duration of at least three
months; and any persons who receive City financial
assistance of one million dollars or more in any 12
-month period, shall comply with the following
provisions of the ordinance:
(a) Retention for a 90-day transition period,
the employees who were employed for the
preceding 12 months or more by the
terminated contractor or subcontractor, if
any, as provided for in the SCWRO;
(b) Payment of a minimum initial wage rate to
employees as defined in the LWO, of $7.99
per hour, with health benefits of at least
$1.25 per hour, or otherwise $9.24 per hour
without benefits.
7.4.2 Termination Provisions
Under the provisions of Section 10.36.3 (c) and
Section 10.37.5 (c) of the Los Angeles Administrative
Code, the Department of Water and Power, shall have
the authority, under appropriate circumstances, to
terminate this contract and otherwise pursue legal
remedies that may be available, if the Department of
Water and Power determines that the subject
Contractor or financial assistance recipient violated
the provisions of the referenced Code Section.
7.4.3 Invoice Provisions
All invoices related to SCWRO and LWO Contracts shall
contain the following statement:
"The Contractor fully complies with Section 10.36 et.
seq. And Section 10.37 et. seq., SCWRO and LWO,
respectively, of the Los Angeles Administrative
Code."
7.5 Child Support Policy
The Contractor and any Subcontractor(s) must fully comply with
all applicable State and Federal employment reporting
requirements for
18
the Contractor's and any Subcontractor(s)' employees. The
contractor and any Subcontractor(s) must fully comply with all
lawfully served Wage and Earnings Assignment Orders and
Notices of Assignment in accordance with the California Family
Code. The Contractor and any Subcontractor(s) must certify
that the principal owner(s) thereof (any person who owns an
interest of 10 percent or more) are in compliance with any
Wage and Earnings Assignment Orders or Notices of Assignment
applicable to them personally. The Contractor and any
Subcontractor(s) must certify that such compliance will be
maintained throughout the term of the Contract.
Failure of the Contractor and/or any Subcontractor(s) to fully
comply with all applicable reporting requirements or to
implement lawfully served Wage and Earnings Assignments or
Notices of Assignment or failure of the principal owner(s) to
comply with any Wage and Earnings Assignments or Notices of
Assignment applicable to them personally shall constitute a
default under the Contract. Failure of the Contractor and/or
any Subcontractor(s) or principal owner(s) thereof to cure the
default within 90 days of notice of such default by the City
shall subject the Contract to termination.
8.0 INSURANCE REQUIREMENTS
8.l General Insurance Coverage
Prior to the start of work, but not later than 30 days after
the date of award of contract, the Contractor shall furnish
the Department evidence of coverage from insurers acceptable
to the Department and in a form acceptable to the Risk
Management Section and the Office of the City Attorney. Such
insurance shall be maintained by the Contractor at the
Contractor's sole cost and expense.
Such insurance shall not limit or qualify the liabilities and
obligations of the Contractor assumed under the contract. The
Department shall not by reason of its inclusion under these
policies incur liability to the insurance carrier for payment
of premium for these policies.
Any insurance carried by the Department which may be
applicable shall be deemed to be excess insurance and the
Contractor's insurance is primary for all purposes despite any
conflicting provision in the Contractor's policies to the
contrary.
Said evidence of insurance shall contain a provision that the
policy cannot be canceled or reduced in coverage or amount
without first giving 30 calendar days' notice thereof (10 days
for non-payment of premium) by registered mail to The Office
of the City Attorney, Water and Power Division, Xxxx Xxxxxx
Xxx 00000, XXX Xxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000.
19
Should any portion of the required insurance be on a "Claims
Made" policy, the Contractor shall, at the policy expiration
date following completion of work, provide evidence that the
"Claims Made" policy has bee renewed or replaced with the same
limits, terms and conditions of the expiring policy, or that
an extended discovery period has been purchased on the
expiring policy at least for the contract under which the work
was performed.
Failure to maintain and provide acceptable evidence of the
required insurance for the required period of coverage shall
constitute a breach of contract, upon which the Department may
immediately terminate or suspend the agreement.
Contractor shall be responsible for all subcontractors'
compliance with the insurance requirements.
8.2 Specific Coverage
8.2.1 Workers' Compensation Insurance
The Contractor shall provide Workers' Compensation
insurance covering all of the Contractor's employees
in accordance with the laws of any state in which the
work is to be performed and including Employer's
Liability insurance and a Waiver of Subrogation in
favor the Department of Water and Power. The limit
for Employer's Liability coverage shall be not less
than $2,000,000.00 each accident and shall be a
separate policy if not included with Workers'
Compensation coverage. Evidence of such insurance
shall be in the form of a special endorsement of
insurance. Workers' Compensation/Employer's Liability
exposure may be self-insured provided that the
Department is furnished with a copy of the
certificate issued by the state authorizing the
Contractor to self-insure. Contractor shall notify
the Risk Management Section by receipted delivery as
soon as possible of the state withdrawing authority
to self-insure.
8.2.2 Commercial General Liability Insurance
The Contractor shall provide Commercial General
Liability insurance with Blanket Contractual
Liability, Independent Contractors, Broad Form
Property Damage, Premises and Operations, Products
and Completed Operations, and Personal Injury
coverages included. Such insurance shall provide
coverage for total limits actually arranged by the
contractor, but not less than $3,000,000.00 combined
single limit per occurrence. Should the policy have
an aggregate limit, such aggregate limits should not
be less than double the Combined Single Limit and be
specific for this contract. Umbrella or Excess
Liability coverages may be used to supplement primary
coverages to meet the required limits.
20
Evidence of such coverage shall be on the
Department's additional insured endorsement form or
on an endorsement to the policy acceptable to the
Risk Management Section and provide for the
following:
1) Include the Department and its officers,
agents, and employees as additional insureds
with the Named Insured for the activities
and operations under the contract.
2) Severability-of-Interest or Cross-Liability
Clause such as: "The policy to which this
endorsement is attached shall apply
separately to each insured against whom a
claim is made or suit is brought, except
with respect to the limits of the company's
liability."
3) A description of the coverages included
under the policy. 8.2.3 Commercial
Automobile Liability Insurance
The Contractor shall provide Commercial Automobile
Liability insurance which shall include coverage's
for liability arising out of the use of owned,
non-owned, and hired vehicles for performance of the
work as required to be licensed under the California
or any other applicable state vehicle code. The
Commercial Automobile Liability insurance shall have
not less than $2,000,000.00 combined single limit per
occurrence and shall apply to all operations of the
Contractor.
The Commercial Automobile Liability policy shall name
the City of Los Angeles, the Board of Water and Power
Commissioners of the City of Los Angeles, the
Department of Water and Power of the City of Los
Angeles, and their officers, agents, and employees
while acting within the scope of their employment, as
additional insureds with the Contractor, and shall
insure against liability for death, bodily injury, or
property damage resulting from the performance of
this Agreement.
8.3 Excess Liability
The Contractor may use an Umbrella or Excess Liability
Coverage to meet coverage limits specified in the contract.
Evidence of Excess Liability shall be in the form of the
Department's Excess Liability-Additional Insured Endorsement
form or equivalent. The Contractor shall require the carrier
for Excess Liability to properly schedule and to identify the
underlying policies as provided for on the Additional Insured
Endorsement form, including, as appropriate, Commercial
General
21
Liability, Commercial Automobile Liability, Employer's
Liability, or other applicable insurance coverages.
8.4 Pollution Legal Liability
Pollution Legal Liability insurance with minimum limits of
$3,000,000 per occurrence shall be furnished by the
Contractor, and shall provide coverage for death, bodily
injury, or property damage to third parties, as well as for
environmental remediation of sites damaged by pollution
resulting directly or indirectly form the Contractor's
operations under this Agreement. Such policy shall be
maintained for not less than (3) years after the date of final
acceptance and completion of the work performed under this
Agreement. The Department of Water and Power General Liability
endorsement form is the preferred means of submitting evidence
of insurance for this coverage.
If the Contractor will subcontract out hazardous waste
treatment, storage, and/or disposal work, Contractor shall
identify to the Department, the name of subcontractor(s), and
require the subcontractor(s) to procure insurance, and provide
evidence of insurance, with all terms and conditions as
specified above, naming he City of Los Angeles, the Board of
Water and Power Commissioners of the City of Los Angeles, and
their officers, agents, and employees and the Contractor, as
additional insureds.
8.5 Professional Liability Insurance
The Contractor shall provide Professional Liability insurance
covering liability arising from errors and omissions made
during the executing of this contract for the total limits
actually arranged by the contractor, but not less than
$1,000,000.00, per occurrence. The coverage shall include
Contractual Liability, and should the policy be of a
claims-made form, such policy shall be maintained for not less
than three (3) years after the date of final acceptance of
completion of all work performed under this agreement.
8.6 Indemnification Clause
The Contractor undertakes and agrees to indemnify and hold
harmless the City of Los Angeles, the Department of Water and
Power, the Board of Water and Power Commissioners of the City
of Los Angeles, the Department, and their officers, agents,
representatives, employees, assigns and successors in interest
from and against any and all suits and causes of action,
claims, charges, damages, demands, judgments, civil fines and
penalties, or losses of any kind or nature whatsoever for
death, bodily injury or personal injury to any person,
including Contractor's employees and agents, or damage or
destruction to any property of either party hereto, or third
person in any manner arising by reason of negligent acts,
errors,
22
omissions or willful misconduct incident to the performance of
this contract on the part of the Contractor, or the
Contractor's officers, agents, employees, or subcontractors of
any tier, except for the sole negligence or willful misconduct
of the Department, its Board, officers, agents,
representatives or employees.
9.0 INVOICES
The Contractor shall be authorized to submit an itemized payment
request for services performed on a monthly basis. Such request shall
be submitted to:
Los Angeles Department of Water and Power
Xx. Xxxxxxxx X. Xxxxx
Contract Administrator
X.X. Xxx 00000, Xxxx 0000
Xxx Xxxxxxx, XX 00000-0000
9.1 Invoice Detail
The invoice shall be submitted by the Contractor in the form
of one original and three copies. The detailed invoice shall
include itemized charges for Contractor services that have
been pre-approved by the Department and completed during the
invoice period.
The Payment Request will be certified, audited, and paid by
the Department within 45 days following receipt of a complete
and accurate invoice. Invoice payments will not be made if the
invoice is received more than six months after the billing
period.
Each invoice shall show the contract/purchase order number,
the vendor code number, the City of Los Angeles Business Tax
Registration Certificate Number, and the identification of
services covered by the invoices.
9.2 Current Los Angeles City Business Tax Registration Certificate
Required
The Contractor shall obtain and keep in full force and effect
during the term of the contract all Business Tax Registration
Certificates required by the City of Los Angeles Business Tax
Ordinance, Article 1, Chapter II, Section 21.00 and following,
of the Los Angeles Municipal Code.
9.3 Taxpayer Identification Number (TIN)
Contractor declares that its authorized TIN is 00-0000000. No
payment will be made under this agreement without a valid TIN
number.
23
10.0 CONFLICTS
10.1 Errors and Omissions
The contractor will be responsible for correcting or remedying
any errors or omissions which occur in performance of the
services under this Agreement and which are the result of the
contractor's negligence or action. The cost of correcting or
remedying any error or omission shall be borne by the
contractor. Revising contractor-prepared documents at the
request of the Department to incorporate comments by the
public or by agencies having jurisdiction in matters of the
particular task assignment is not considered to be a remedy of
errors or omissions, but is considered an integral part of
document preparation which may be called for by a task
assignment.
10.2 Priority of Documents
In the event of any conflicting provisions between the
documents referenced or included in this Agreement, the
priority shall be as follows:
a. Amendments to the Agreement, incorporating change
orders, in chronological order from the most recent
to the earliest.
b. Written Change Orders to the Agreement in
chronological order from most recent to earliest.
c. Agreement.
d. Task Assignments.
e. Other Referenced Documents.
Each party shall notify the other immediately upon the
determination of any such conflict or inconsistency.
11.0 MONITORING OF WORK
11.1 Records and Audits
The Contractor shall maintain records and books of accounts
showing all costs and expenses incurred by the Contractor for
this Agreement. The Department shall have the right, upon
reasonable notice, to audit the books, records, documents, and
other evidence and the accounting procedures and practices,
where needed, to verify the costs and expenses claimed. The
Department retains this right for at least three years after
final payment and until all disputes, appeals, litigation, or
claims have been resolved. This right to audit shall also
include inspection at
24
reasonable times of the Contractor's office or facilities
which are engaged in the performance of the Agreement. In
addition, the Contractor shall, at no expense to the
Department, furnish reasonable facilities and assistance for
such an audit. Upon request, Contractor shall also provide
copies of documents applicable to this Agreement. The audit
findings shall, to the extent allowed by law, be treated by
the Department as confidential.
11.2 Right to Review Services, Facilities, and Records
The Department reserves the right to review any portion of the
services performed by the contractor under this Agreement, and
the contractor agrees to cooperate to the fullest extent
possible. Contractor shall furnish to the Department such
reports, statistical data, and other information pertaining to
the contractor's services as shall be reasonably required by
the Department to carry out its rights and responsibilities
under its agreements with its bondholders or noteholders and
any other agreement relating to the development of the
project(s) and in connection with the issuance of its official
statements and other prospectuses with respect to the
offering, sale, and issuance of its bond and other
obligations.
The right of the Department to review or approve drawings,
specifications, procedures, instructions, reports, test
results, calculations, schedules, or other data that are
developed by the contractor shall not relieve the contractor
of any obligation set forth herein.
11.3 Department's Quality Assurance Program
Work performed under this agreement will be subject to review
by the Department's personnel.
12.0 TITLE TO WORK
12.1 Confidentiality of Department Information
All information disclosed by the Department during meetings or
negotiations with regard to the Program, and any information
contained in drawings, specification, technical reports, and
data provided by the Department to Contractor during
performance of this Agreement shall be held in confidence by
Contractor and used only for the performance of the Work
pursuant to this Agreement.
Contractor, its employees, and any subcontractors shall not
disclose any program or customer information to any person
other than the Department's personnel, or the Department's
designated agent, either during the term of this Agreement or
after its completion, without Contractor having obtained the
prior written consent of the Department, except as provided by
lawful court order or subpoena and provided contractor gives
the Department advance written notice of such order or
subpoena.
25
12.1.1 Department Property
The Contractor shall not copy any drawing,
specification, technical report, or data provided by
the Department. The Contractor shall return all
materials provided by the Department. All materials
shall be returned no later than the closing date of
the Agreement.
12.2 Right to Documentation Developed by Contractor
All information, material, and documents prepared or caused to
be prepared under this Agreement by Contractor shall become
the property of the Department. Such information, or
derivative information, materials, and documents, shall be
used by Contractor only for work done directly for the
Department and shall neither be disclosed nor revealed in any
way to a third party without the prior express consent of the
Department.
12.2.1 Nondisclosure
The contractor shall not disclose to others any
information developed by contractor under this
Agreement without prior written approval by the
Contract Administrator.
12.3 Confidentiality of Contractor Information
The Department, its employees and any agents or subcontractors
of the Department shall not disclose any confidential or
proprietary information of Contractor ("Contractor's
Confidential Information") to any person other than
Contractor's personnel, either during the term of the
Agreement, or after its completion, without having obtained
their prior written consent of Contractor. By way of example,
Contractor's Confidential Information shall include, without
limitation, Contractor's system for oil degassing, CFC/HCFC
recovery, CFC-l1 Recovery and Contractor's computer software.
12.3.1 The Department agrees that, without the prior written
consent of Contractor, it will not, during the term
or after termination of this Agreement, directly or
indirectly, disclose to any individual, corporation,
or other entity, or use for its own or such other's
benefit, any of Contractor's Confidential
Information, whether reduced to written or other
tangible form, which:
a) Is not generally known to the public or in
the industry;
b) Has been treated by Contractor or any of its
subsidiaries as confidential or proprietary;
and
26
c) Is of a competitive advantage to Contractor
or any of its subsidiaries and in the
Confidentiality of which Contractor or any
of its subsidiaries has a legally
protectable interest.
12.3.2 Contractor's Confidential Information which becomes
generally known to the public or in the industry, or,
in the confidentiality of which, Contractor and its
subsidiaries cease to have a legally protectable
interest, shall cease to be subject to the
restrictions of this Paragraph.
12.4 Title of Collected Refrigerators and Freezers
12.4.1 Title to the Hazardous Material shall pass to
Contractor when Contractor receives Primary or Second
Refrigerator and Freezers from the Appliance Delivery
and Removal Contractor.
12.4.2 Title of received Primary or Second Refrigerators and
Freezers shall pass to Contractor.
13.0 SECTION HEADINGS
Section headings appearing in this Agreement are for convenience only
and shall not be construed as interpretations of text.
27
14.0 SIGNATURE OF AUTHORIZING AGREEMENT
Each party was represented by counsel in the negotiations and execution
of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their authorized representatives on the day and year
written below.
APPLIANCE RECYCLING CENTERS OF AMERICA- CALIFORNIA, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------------
Title: President
-----------------------------------------------------
Dated: 9/26/02
-----------------------------------------------------
DEPARTMENT OF WATER AND POWER
OF THE CITY OF LOS ANGELES
BY
BOARD OF WATER AND POWER COMMISSIONERS
OF THE CITY OF LOS ANGELES
By: /s/Xxxxx X. Xxxxx, General Manager
-----------------------------------------------------
And /s/Secretary
-----------------------------------------------------
APPROVED AS TO FORM AND LEGALITY
XXXXXXX X. XXXXXXXXXX, CITY ATTORNEY
OCT 08 2002
BY XXXXXX XXXXX XXXXXX
Assistant City Attorney
28
AGREEMENT NO. 47190-3
BETWEEN
THE DEPARTMENT OF WATER AND POWER
OF THE CITY OF LOS ANGELES
AND
APPLIANCE RECYCLING
CENTERS OF AMERICA - CALIFORNIA INC.
SEPTEMBER 24, 2002
APPLIANCE DELIVERY SERVICES AGREEMENT
-------------------------------------
Table of Contents
-----------------
Section Title Page
------- ----- ----
1.0 AGREEMENT........................................................2
2.0 RECITALS ........................................................2
3.0 DEFINITIONS .....................................................2
4.0 STATEMENT OF WORK ...............................................5
5.0 CUSTOMER AND REFRIGERATOR/FREEZER QUALIFICATION.................13
6.0 GENERAL CONDITIONS .............................................14
7.0 COMPENSATION....................................................20
8.0 BUSINESS POLICIES...............................................21
9.0 INSURANCE REQUIREMENTS..........................................25
10.0 INVOICES .......................................................29
11.0 CONFLICTS ......................................................30
12.0 MONITORING OF WORK. ............................................30
13.0 TITLE TO WORK ..................................................31
14.0 SECTION HEADINGS................................................33
15.0 SIGNATURE OF AUTHORIZING AGREEMENT..............................34
APPLIANCE DELIVERY SERVICES AGREEMENT
1.0 AGREEMENT
1.1 PARTIES
This Agreement is made and entered into by and between
APPLIANCE RECYCLING CENTERS OF AMERICA - CALIFORNIA (ARCA),
INC. 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000,
(hereinafter referred to as "Contractor") and the Department
of Water and Power of the City of Los Angeles (hereinafter
referred to as "Department"); Contractor and the Department
are sometimes hereinafter referred to individually as "Party"
and collectively as "Parties'.
2.0 RECITALS
The Agreement is entered into with reference to the following facts,
among others:
2.1 The Department desires to promote energy efficient
refrigerators to its customers through its Low Income
Refrigerator Exchange Program (LIREP), which provides free
super efficient refrigerators (New Refrigerators) to
qualifying customers in exchange for their older, working
refrigerators, which will be recycled.
2.2 The Department also desires to remove older working
inefficient second Refrigerators and Freezers (Second
Refrigerators and Freezers) through its Refrigerator Turn-In
and Recycling Program (RETIRE) that qualifying Customers
turn-in for recycling and disposal.
2.3 The Department envisions implementing the LIREP and RETIRE
Programs for the purpose of saving energy, reducing peak
demand, lowering Department customers' energy bills,
transforming the market for energy-efficient appliances and
providing additional public environmental benefits.
2.4 The Department has solicited responses from potentially
qualified vendors through a Request for Proposals and has
determined that the Contractor is the party best qualified to
provide the Department with the required appliance delivery
services in support of the above programs and is qualified to
provide other related services described in this agreement.
3.0 DEFINITIONS
The following terms, whether in the singular or in the plural, when
used in this Agreement, shall have the meanings specified:
3.1 Agreement: This document, the terms and conditions contained
in this agreement as may be amended and supplemented.
2
3.2 Appliance Delivery Warehouse: The site at which Contractor
will store New Refrigerators prior to delivery to Program
Participants or location that may be utilized for temporary
storage of Refrigerators and Freezers Eligible for Recycling
that are collected from Program Participants.
3.3 Approved Customers: Those entities approved by the Department
to participate in the LIREP or RETIRE programs based on
established eligibility criteria described in this agreement.
Such entities may include residential, multi-family
residential and low-income customers of the Department. The
solicitation, evaluation and approval of such customers for
participation in the programs shall be conducted based upon
guidelines established by the Department.
3.4 Change Order: document issued by the Department to Contractor
to change the Agreement.
3.5 Contract Administrator: The Department's authorized
representative for this Agreement as specified in Section 6.5.
3.6 Contract Period: The period beginning with the time of
effectiveness date as defined in Section 6.1.4, and extending
through October 31, 2005, or as extended by mutual agreement
of the Parties.
3.7 Documentation: Specifications, procedures, instructions,
reports, test results, analyses, calculations, manuals, and
other data specified in this Agreement, and any amendment to
this Agreement, as required by any legal entity having
jurisdiction over the Work.
3.8 Freezer: A freezer which provides supplementary cold storage
to a primary freezer or to the freezer section located within
the Primary Refrigerator in a residential household.
3.9 Freezers Eligible for Recycling: Freezers that meet the
Program appliance eligibility criteria as referenced in
Section 5.
3.10 Incentives: Customer giveaways in the form of cash, monetary
amounts and/or products such as compact fluorescent lamps as
inducement to Department customers to participate in the
Programs.
3.11 "Low-Income Refrigerator Exchange Program": Department Program
that is supported by Work covered by this Agreement, also
referred to as LIREP Program.
3.12 New Refrigerator: Energy efficient Refrigerator, purchased by
the Department which replaces the Primary Refrigerator
utilized by the Customer prior to the installation of a New
Refrigerator.
3
3.13 Primary Freezer: Freezer utilized by the Customer as the
principal means of storing frozen foods in the residence.
3.14 Primary Refrigerator: Refrigerator utilized by the Customer as
the principal means of storing frozen foods in the residence.
3.15 Programs: Incentive Programs such as the LIREP and RETIRE
Programs or other Programs that may be implemented by the
Department for the purpose of promoting energy efficient
appliances to its customers and the removal and
environmentally sound recycling of replaced older, inefficient
appliances from the Department Customers' residences.
3.16 Program Participants: Approved Customers as determined by the
Department, who participate in the Programs and agree to the
installation of New Refrigerators and, if applicable, turn in
old Primary/Second Refrigerators or Freezers.
3.17 Recycling Center: The site at which Refrigerators and Freezers
are processed in an environmentally sound manner to legally
remove, dispose of and/or recycle CFCs, CFC Foam Insulation,
HCFCs, CFC 11, PCBs, mercury, used oils, and other Hazardous
Materials.
3.18 Refrigerator Turn-In and Recycling Program (RETIRE):
Department Program that is supported by Work covered by this
Agreement, also referred to as RETIRE Program.
3.19 Refrigerators Eligible for Recycling: Refrigerators that meet
the Program appliance eligibility criteria as referenced in
Section 5.
3.20 Second Freezer: Surplus or spare freezer utilized by approved
customer concurrently with Primary Refrigerator and/ or
Freezer.
3.21 Second Refrigerator: Surplus or spare refrigerator utilized by
Approved Customer concurrently with Primary Refrigerator.
3.22 Subcontractor: An entity contracting directly with Contractor
to furnish services or materials as part of, or directly
related to, the Work.
3.23 Suitable for Replacement: An approved customer's Primary
Refrigerator which the Department has determined is eligible,
as referenced in Section 5 and where a properly working
grounded electrical outlet, sound flooring, access and
adequate clearance will allow the installation of a New
Refrigerator.
4
3.24 Task Assignment: Duly authorized request for contractor
services submitted either in written form or through
electronic media for the sole purpose of performing specific
Work for the Department.
3.25 Work: Any and all obligations of Contractor to be performed
pursuant to this Agreement, which includes but is not limited
to the following: a) New Refrigerator warehouse/ inventory
services; b) New Refrigerator
delivery/uncrate/setup/installation services; c) Customer
Services; d) Primary or Second Refrigerator or Freezer
removal/pick-up and delivery to Recycling Center; d)
Documentation, Report preparation, Program tracking and
Database administration.
4.0 STATEMENT OF WORK
4.1 Services to be Performed
The Contractor hereby agrees to provide the following services
to the Department pursuant to the terms and conditions of this
Agreement:
4.1.1 Assisting the Department in developing and
implementing Program protocols, procedures and
coordination activities for: 1) Contractor's
employees and subcontractors and 2) Department
employees and its subcontractors;
4.1.2 Assisting the Department in developing and
implementing Program protocols, and procedures
pertaining to issuance of Incentives to Program
Participants as determined by the Department;
4.1.3 Providing Customer Services as applicable in support
of Programs implemented by the Department. Such
Customer Services shall include but not limited to
the following:
(a) Providing a toll-free telephone number
dedicated exclusively for Department
customers with incoming lines adequate for
receiving inquiries and application requests
for the Department Programs;
(b) Providing adequate staff to receive and
answer customer calls made on the toll-free
lines as follows: Monday through Friday
(except Department holidays): 8:00 a.m. to
8:00 p.m. (pacific Standard Time) and 8:00
a.m. to 6:00 p.m. (pacific Standard Time) on
Saturdays; At all other times, the
Contractor shall provide a recorded message
with pertinent Program information and the
capability for the customer to leave a
message for call back by the Contractor.
Such messages shall be returned the next
business day and daily thereafter until
customer has been contacted. All contacts
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and contact attempts shall be recorded in
the Contractor's Internet-based program
database and will be made available to the
Department for review on a real time basis.
(c) Providing all necessary training to Program
staff that will directly respond to and
handle routine customer service issues as
described in this Agreement;
(d) Responding to general telephone inquiries
about the Programs as necessary and
resolving problems with customers to the
satisfaction of the Department. If there are
any reported damages to a customer's home or
property as a result of appliance delivery
and/or removal services, the Contractor
shall inspect the damages incurred within
five (5) working days and will be
satisfactorily repaired or adjustments made
within three weeks. Repairs will be made at
no charge to the customer or the Department.
The Department reserves the right to be the
final arbiter in dispute resolution;
(e) Receiving customer calls and checking
customer eligibility and other program
requirements specified by the Department,
scheduling appointments and dispatching New
Refrigerator deliveries, Primary/Second
Refrigerator and Freezer pick-ups for
Approved Customers;
(f) Sending written notices three (3) days in
advance of actual Primary/Second
Refrigerator and Freezer pick-ups for
Approved Customers informing them of Program
requirements as specified in section 5.2.5.;
(g) Making 24-hour ahead reminder calls to
customers with appointments and reminding
them of the Program requirements to
facilitate delivery of New Refrigerators and
removal of Second Refrigerators and Freezers
as applicable;
(h) Responding to customer inquiries regarding
status of applications and requests for
services;
(i) Maintaining appropriate records (electronic
and hard copy) on all customer calls,
applications and inquiries and forwarding
those records to the LADWP on an
as-requested basis;
(j) Working with the Department to ensure
exemplary customer service by conducting
Quality Assurance surveys and customer
follow-ups.
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4.1.4 Receiving, warehousing and inventorying the
Department's stock of New Refrigerators as required
in the implementation of the LIREP program;
4.1.5 Making deliveries, uncrating, setting up and
installing New Refrigerators at Approved Customers'
residences;
4.1.6 Providing Customers with New Refrigerator
manufacturers' ownership/operation manual, warranty
registration information and other required
documentation;
4.1.7 Removing, disabling, collecting and transporting or
warehousing and transporting replaced Primary and any
Second Refrigerators or Freezers turned-in by the
Department's customers, directly to the Recycling
Center;
4.1.8 Removing and transporting all New Refrigerator crates
and packing materials from the Customers' residence
for disposal and/or recycling;
4.1.9 Provide reporting, Documentation and program tracking
information to the Department as specified herein.
4.2 Program Mechanics - LIREP Program
The Department and the Contractor hereby agree to the
following program specific provisions, pursuant to the terms
and conditions of this Agreement. Contractor shall provide
services under the LIREP Program as follows:
4.2.1 The Department will provide the Contractor, in
writing, or through electronic media authorized task
assignments for specific LIREP Program services to be
performed. Such authorizations shall be forwarded to
the Contractor from time to time on an as needed
basis, and shall include specific information as to
the approved customers address, phone number,
specific services to be provided, and the desired
time frame for performance of said services. Task
assignments may include one or multiple customers,
based on actual Program requirements.
Under no circumstances shall the Contractor engage in
any work related to this Contract without the prior
authorized task assignment issued by the Department.
4.2.2 Upon receipt and acceptance of an authorized task
assignment, the Contractor shall contact the Approved
Customer and make arrangements for the performance of
the specified services within five (5) working days.
4.2.3 Records of all services provided and work performed
shall be maintained by the contractor and included in
the monthly reports to the Department as specified
herein.
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The Department shall manage the following aspects of the LIREP
Program:
4.2.4 Marketing and advertising the Program to potentially
eligible and qualified customers and participants;
4.2.5 Assisting customers and other potential participants
in requesting applications for the Program services;
4.2.6 Determining customer and participant eligibility
(low-income and other criteria) and suitability for
refrigerator replacement and/or removal services;
4.2.7 Submitting, to the Contractor, Task Assignments
authorizing the performance of specific services;
4.2.8 Reviewing and approving invoices and reports; and
4.2.9 Developing and implementing Program protocols,
procedures, training and coordination activities
between the Department and Contractor as maybe
necessary.
4.3 Program Mechanics - RETIRE Program
Contractor shall provide services under the RETIRE Program as
follows:
4.3.1 The Contractor will manage and administer the
Department's RETIRE Program in accordance with
guidelines approved by the Department. Such
guidelines and any other Program guidelines,
protocols and procedures not identified in this
Agreement and subsequently developed between the
Department and the Contractor shall be incorporated
into this Agreement through amendment provisions as
referenced in Section 6.1.1. The RETIRE Program is
available to all eligible Department customers. The
Contractor will be responsible for the determination
of eligibility, issuance of Program Incentives as
specified by the Department, customer service and
program database management. These tasks will be
performed as specified in Section 4.1 under Statement
of Work.
4.3.2 The Contractor shall provide, develop and maintain a
pro gram database as required in the implementation
of the RETIRE Program. On-line database access shall
be made available to the Department in real-time.
Contractor shall also provide and turn- over the
complete Program database in a single-user format to
the Department at the termination of this Agreement.
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The Department shall provide monthly updates of its
residential customer database to the Contractor in
ASCII format. The Contractor shall use this data to
confirm applicant eligibility and will update the
Program database within five days of receipt of the
Department data. The Contractor shall be responsible
for maintaining the Program database, and ensuring
data integrity/security and nightly database back up.
4.3.3 Records of all services provided and work performed
shall be maintained by the contractor and included in
the monthly reports to the Department as specified
herein.
4.4 Contractor's Responsibilities
4.4.1 Warranty
Contractor warrants to the Department that the Work
shall be performed in a competent manner acceptable
to the Department, in accordance with this Agreement,
and that the acceptance, removal collection,
warehousing, inventorying, delivery, uncrating, set
up and installation of all New and Second
Refrigerators and Freezers, as applicable, shall be
in accordance with (a) the requirements of this
Agreement and (b) applicable local, state, and
federal laws and regulations in effect at the time
the work is performed.
4.4.2 Contractor shall be responsible for:
a) Receiving, maintaining and executing task
assignments issued to the Contractor by the
Department;
b) Contractor services as specified in Section
4.1 and all other Program services performed
in the Approved Customer's premises in
connection with either the RETIRE or LIREP
programs;
c) Complete accounting of all New Refrigerator
deliveries and Primary and/or Second
Refrigerators and Freezers collected and
delivered to the Department's Recycling
Center;
d) Issuance, inventory, computerized
tracking/monitoring and real-time reporting
of Incentives given to Program Participants
as required in the implementation of the
RETIRE program;
e) Determining and ensuring that the best
methods and practices will be used in
appliance delivery, removal and collection
services as required in the implementation
of the
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Department Programs to avoid damage to
Department and customer's property and to
prevent personal injury;
e) Producing required Documentation, reports
and other necessary program implementation
documents;
f) Providing uniforms and photo-identification
badges, approved by the Department to all
Program representatives authorized to visit
customer homes and property or Department
facilities;
g) Verifying and certifying on a monthly basis
that all delivery/pick-up personnel have
valid California driver's licenses and auto
insurance as required by law.
4.4.3 Contractor shall be solely responsible for all
methods, techniques, sequences, and procedures for
the:
a) Warehousing and inventory of New
Refrigerators;
b) Delivery, uncrating, setup and installation
of New Refrigerators in accordance with the
manufacturer's specifications;
c) Removal and immediate disabling by cutting
the electrical supply cord of replaced
Primary and Second Refrigerators and
Freezers turned-in by Program Participants
and transporting or warehousing and
transporting of said refrigerators and
freezers to the Recycling Center; and
d) Recycling of Refrigerator corrugated
cardboard packaging.
4.4.4 Contractor shall document and maintain records for
services under this Agreement as follows:
a) A bi-weekly Customer Comment Tracking Report
for customer inquires, complaints,
resolution of complaints, problems and
positive feedback.
b) Provisions to collect and report data such
as:
i) Date of each contact with customer;
ii) Customer name, address, home and
work phone numbers;
iii) Department customer account number;
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iv) New Refrigerator, model serial
number and size;
v) Any incentives given to customer;
vi) Scheduled delivery and/or
collection date and any reschedules
or cancellations;
vii) Primary/Second Refrigerator or
Freezer manufacturer's name;
viii) Primary/Second Refrigerator or
Freezer style, defrost type, size
and estimated age;
ix) Location of Primary/Second
Refrigerator or Freezer within the
residence;
x) Primary/Second Refrigerator or
Freezer final disposition code
(which indicates operating
condition of the Primary/Second
Refrigerator or Freezer);
xi) Special instructions (if
applicable); and
xii) Signature of Customer following
Customer certification that
Customer owns the removed
Primary/Second Refrigerator or
Freezer, or has the owner's written
permission (for example, multi-
family property owner/manager),
that the New Refrigerator has been
properly installed and meets with
the Customers' satisfaction.
4.4.5 Compilation of data in Section 4.4.4 shall be in
electronic mode, employing the Contractor's Database
software program. Data shall be provided to the
Department in both hard copy and electronic format
(e.g. Microsoft Excel) acceptable to the Department
and available for review on a real-time basis through
an Internet-based database program.
4.5 Reporting Requirements
Contractor shall provide the Department with reports for the
services performed under this Agreement as follows:
4.4.1 A monthly report provided no later than the fifteen
(15) working days following the end of the previous
month, listing the number of New Refrigerators
installed, the number of Primary Refrigerators
removed and the number of Second Refrigerators or
Freezers removed and delivered to
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the Recycling Center during the previous month and
containing size in cubic feet, year of manufacture,
style, and defrost type of each Primary/Second
Refrigerator or Freezer, any Incentives given to
Approved Customers and corresponding ending balances
and/or remaining inventory as applicable.
4.5.2 Program summary reports provided no later than
fifteen (15) working days following the end of a
twelve month period specified by the Department,
covering all the activities requested in the monthly
reports plus information from any incomplete month.
4.5.3 Special and Non-recurring Reports
4.5.3.1 Upon written request from an authorized
representative of the Department,
Contractor may be asked to prepare
special and nonrecurring reports during
course of the Program. Such report
content may be developed by the parties
in anticipation of requests from the
Board, internal Department audits, or
compilation of data relevant to program
activities.
4.6 New Refrigerator Inspection, Handling and Accounting
4.6.1 Upon uncrating, setting up and installing each New
Refrigerator at the Approved Customer's residence,
Contractor shall inspect the unit for any defects.
Contractor shall notify the Department of any
defective units and, upon instruction from the
Department, return any defective units directly to
the manufacturer for a replacement. The Department
shall pay the contractor a handling charge for the
return of any such defective Refrigerators.
4.6.2 On a monthly and/or on an as needed basis, Contractor
shall provide the Department with an unaudited
accounting of New Refrigerators remaining in
Contractor's inventory.
4.6.3 On a quarterly basis, Contractor shall complete and
provide the Department with reconciliation to account
for the New Refrigerators that were defective,
damaged, or stolen. Contractor shall reimburse the
Department for any and all New Refrigerators that are
either stolen from the Contractor or damaged by the
Contractor, the Contractor's employees or
subcontractors of the Contractor. For each unit
stolen or so damaged, reimbursement shall be the
Department's purchase price, subject to the
provisions of Section 4.6.4.
4.6.4 Should the total cumulative number of units stolen
from, or damaged by, the Contractor, as stipulated in
Section 4.6.3, exceed 2% of the total cumulative
number of units accepted into inventory by the
Contractor, reimbursement shall be the Department's
12
purchase price plus $75 for each such unit in excess
of the stated 2% threshold.
4.6.5 If, after a New Refrigerator is delivered by
Contractor, any Program Participant alleges that the
Refrigerator is damaged or defective, the Department
shall inspect the Refrigerator and, at its discretion
authorize replacement of such defective and/or
damaged Refrigerator by Contractor. If the damage to
a Refrigerator is the result of any action by
Contractor, the Department shall be relieved of any
obligation to pay Contractor a Delivery/Installation
Charge for the damaged Refrigerator, and the
Contractor shall submit payment to the Department for
the damaged refrigerator in accordance with paragraph
4.6.3 herein. If a refrigerator has been determined
to contain a manufacturer defect, the customer will
be advised to call the appropriate phone number per
manufacturer warranty.
5.0 CUSTOMER AND REFRIGERATOR/FREEZER QUALIFICATION
5.1 The Department shall perform Customer qualification in
connection with the LIREP Program implementation. After a
customer has been approved for participation, the Department
will forward a task assignment authorizing the Contractor to
carry out the specified services contained within said task
assignment. Under no circumstances shall the contractor engage
in any work related to the LIREP Program Work without the
prior authorized task assignment issued by the Department.
5.2 The Department intends to execute the Retire Program subject
to the following conditions:
5.2.1 Customer owns the Eligible Refrigerator or Freezer or
possesses written consent from the Refrigerator or
Freezer owner to turn in a Primary or Second
Refrigerator or Freezer.
5.2.2 Primary or Second Refrigerator or Freezer must be
capable of cooling or freezing, or both, as
applicable, at time of collection.
5.2.3 Primary or Second Refrigerator or Freezer minimum
size is 10 cubic feet and maximum size is 25 cubic
feet.
5.2.4 Primary or Second Refrigerator or Freezer is
certified by the customer to have been in use as
such.
5.2.5 Customer will properly prepare the Primary
Refrigerator or Freezer for Removal by:
a) boxing/bagging food items;
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b) clearing a path for safe removal;
c) disconnecting the water supply if the
Primary/Second Refrigerator or Freezer
contains an icemaker;
5.2.6 Commercial refrigerators, ammonia-containing gas
refrigerators, commercial freezers, and room air
conditioner do not qualify for the Program.
6.0 GENERAL CONDITIONS
6.1 Integrated Agreement
This Agreement sets forth all of the rights and duties of the
parties with respect to the subject matter hereof, and
replaces any and all previous agreements, or understandings,
whether written or oral, relating thereto. This Agreement may
be amended only as provided for in paragraph 6.1.1 hereof.
6.1.1 Amendment. All amendments hereto shall be in writing
and signed by the persons authorized to bind the
parties thereto.
6.1.2 Prohibition Against Assignment or Delegation
The Contractor may not, unless it has first obtained
the written permission of the Department, which may
be withheld for any reason:
a) assign or otherwise alienate any of its
rights hereunder, including the right to
payment, or
b) delegate, subcontract, or otherwise transfer
any of its duties hereunder.
6.1.3 Non-Waiver of Agreement
The Department's failure to enforce any provision of
this Agreement or the waiver thereof in a particular
instance shall not be construed as a general waiver
of any part of such provision. The provision shall
remain in full force and effect.
6.1.4 Time of Effectiveness
Unless otherwise provided, this Agreement shall take
effect when all the following events have occurred:
a) this Agreement has been signed on behalf of
the Contractor by the person(s) authorized
to bind the Contractor hereto;
14
b) this Agreement has been signed on behalf of
the Department by the person designated by
the Board, officer or employee authorized to
enter into this Agreement;
c) the Office of the City Attorney has
indicated in writing its approval of this
Agreement as to form and legality; and
d) this Agreement has been approved by the
City's Councilor by the Board, officer, or
employee authorized to give such approval.
6.1.5 Independent Contractor
The Contractor is acting hereunder as an independent
contractor and not as an agent or employee of the
Department. The Contractor shall not represent or
otherwise hold out itself or any of its directors,
officers, partners, employees, or agents to be an
agent or employee of the Department.
6.1.6 Applicable Law, Interpretation, Enforcement and
Severability.
Each party's performance hereunder shall comply with
all applicable laws of the United States of America,
the State of California, and the City of Los Angeles.
This Agreement shall be enforced and interpreted
under the laws of the State of California and the
City of Los Angeles with venue for any litigation in
Los Angeles, California.
If any part, term or provision of this Agreement
shall be held void, illegal, unenforceable, or in
conflict with any law of a Federal, State, or Local
Government having jurisdiction over this Agreement,
the validity of the remaining portions or provisions
shall not be affected thereby.
6.2 Personnel
6.2.1 Staff Size
The size of the staff employed by the contractor in
the performance of the services shall be kept
consistent with the services and schedules as
described in this Agreement.
6.2.2 Identification of Key Personnel
The Contractor shall furnish the Department the
names, titles, and qualifications of its key project
personnel.
15
6.2.3 Approval of Key Personnel
The Contract Administrator will have the right to
interview and approve personnel. Resumes of
individual personnel will be reviewed and approved by
the Department's Contract Administrator before the
individual can be assigned work.
6.2.4 Changes in Key Personnel
The Contractor shall minimize changes to key project
personnel. The Department shall have the right to
request key personnel changes and to review and
approve key project personnel changes proposed by the
Contractor. The Department's approval of key
personnel assignments and changes shall not be
unreasonably withheld.
6.3 Subcontractors
6.3.1 Subcontracts/Joint Participation Agreement
With prior approval of the Department, the Contractor
may enter into subcontracts and joint participation
agreements with others for the performance of
portions of this Agreement. The Contractor shall at
all times be responsible for the acts and errors or
omissions of its subcontractors or joint participants
and persons directly or indirectly employed by them.
Nothing in this Agreement shall constitute any
contractual relationship between any others and the
Department or any obligation on the part of the
Department to pay, or to be responsible for the
payment of, any sums to any subcontractors.
6.3.2 Copies of Subcontractor Agreement
Upon written request from the Contract Administrator,
the contractor shall supply the Department with all
subcontractor agreements.
6.3.3 Provisions Binding on Subcontractors
The provisions of this Agreement shall apply to all
Subcontractors providing service in connection with
the Work to be bound by general terms and conditions
protecting the Department which are equivalent to the
terms and conditions of this Agreement. In particular
the Department will not pay, even indirectly, the
fees and expenses of a subcontractor which do not
conform to the limitations and documentation
requirements of this Agreement.
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6.4 Contractor's Quality Assurance Program
The Contractor shall perform the work in accordance with the
Contractor's Quality Assurance Program, which shall be subject
to review, approval, and audit by the Department. The
Contractor's work shall reflect competent professional
knowledge, judgment, and accepted industry practice. The
Contractor shall promptly correct, or remedy any work, errors
or omissions, at its sole expense, which do not conform to the
provisions of this Agreement.
6.5 Representatives and Notices
Any notice, demand, or request directed to the Department
shall be delivered to:
DEPARTMENT OF WATER AND POWER
CITY OF LOS ANGELES
Xxxxxxxx X. Xxxxx
Contract Administrator
000 Xxxxx Xxxx Xxxxxx, Xxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Any notice, demand, or request directed to the Contractor
shall be delivered to:
APPLIANCE RECYCLING CENTERS OF AMERICA -
CALIFORNIA, INC.
Xxx Xxxxxx
General Manager - ARCA California
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Such correspondence shall be in writing, except as specified
elsewhere in this Agreement. General correspondence will be
deemed complete upon receipt.
6.5.1 Change of Address or Representatives
Either party, by written notice, may designate
different or additional person(s) or different
addresses.
6.5.2 Excusable Delays
In the event that performance on the part of any
party hereto shall be delayed or suspended as a
result of circumstances beyond the reasonable control
and without the fault and negligence of said party,
none of the parties shall incur any liability to the
other parties as a result of such delay or
suspension. Circumstances deemed to be beyond the
control of the parties hereunder shall
17
include, but not be limited to acts of God or the
public enemy; insurrection; acts of the Federal
Government or any unit of State or Local Government
in either sovereign or contractual capacity;
earthquakes, fires; floods; epidemics; quarantine
restrictions; strikes; freight embargoes or delays in
transportation; to the extent that they are not
caused by the party's willful or negligent acts or
omissions, and to the extent that they are beyond the
party's reasonable control.
6.5.3 Breach
Except for excusable delays, if any party fails to
perform, in whole or in part, any promise, covenant,
or agreement set forth herein, or should any
representation made by it to be untrue, any aggrieved
party may avail itself of all rights and remedies, at
law or equity, in the courts of law. Said rights and
remedies are cumulative of those provided for herein
except that in no event shall any party recover more
than once, suffer a penalty or forfeiture, or be
unjustly compensated.
6.6 Permits, Codes, And Statutes
6.6.1 Contractor shall perform the Work set forth in this
Agreement in accordance with all applicable Federal,
state, and local laws, rules, and/or ordinances.
Prior to performance of any services, Contractor
shall, at its own cost, have obtained, and shall have
required all Subcontractors to obtain, all licenses
and permits required by law, rule, regulations, and
ordinance, or any of them, to engage in the
activities required in connection with this
transaction.
6.6.2 Contractor shall comply with all applicable local,
state, and federal safety and health laws in effect
in the date of this agreement, including, but not
limited to EPA, California EPA, RCRA, the
Occupational Safety and Health Act of 1970 (OSHA),
and all standards, rules, regulations, and orders
issued pursuant to such local, state, and federal
safety and health laws. Should any such law, rule, or
regulation be enacted or promulgated subsequent to
the date of this Agreement, which renders
Contractor's performance impractical, Contractor and
the Department shall amend this Agreement to
reasonably compensate Contractor for its additional
costs.
6.7 Suspension and Termination
6.7.1 Suspension of Work
The Contract Administrator may orally direct the
Contractor to suspend, and to subsequently resume
performance of all or any
18
part of the work. Such direction shall be confirmed
by a Change Order or a revision to a task assignment
if such suspension impacts the cost of the work
and/or work completion schedule. The Department shall
complete the payments due for the suspended work up
to the effective date of suspension notice and shall
resume payments effective as of the work resumption
date.
6.7.2 Termination of Agreement
6.7.2.1 Cancellation Without Cause
This Agreement may be canceled by the
Department, without cause, on 30 calendar
days' written notice or at any time by
mutual agreement of the parties. Said
notice, on the Department's behalf, will be
given by the Contract Administrator. Upon
receipt of such notice, the Contractor shall
immediately stop all work under this
agreement. The Contractor shall be entitled
to payment for all services performed to
date of cancellation and shall be
compensated at the established rates for
completing all task assignments and work in
progress as of the date of receipt of the
written cancellation notice. The Contractor
shall then deliver to the Department, in an
organized and usable form, all work done
prior to the date of cancellation.
6.7.2.2 Termination Due to Expenditure Limit
This Agreement will automatically terminate
if expenditures reach the limit of
$2,100,000.00
6.7.2.3 Expiration of Agreement
Unless amended by mutual agreement of the
Parties, this Agreement expires on October
31, 2005.
6.7.2.4 Termination of the Services of any Person.
If the Department no longer requires the
services of a particular person(s) supplied
by the Contractor, the Department may
terminate the services immediately upon
written notice to the contractor.
6.8 Patents, Copyrights and Trademarks
The Contractor shall fully indemnify the Department against
any and all liability whatsoever by reason of any alleged
infringement of any patent, copyright, or trademark on any
hardware, software, firmware, equipment or instrumentation
used by the Contractor in the construction of the work, or by
reason of any
19
intended use under these specifications by the Department of
any hardware, software, firmware, equipment or instrumentation
furnished under this contract; provided, however, that the
contractor shall have no liability to the Department under any
provision of this Article with respect to any claim of patent,
copyright, or trademark infringement which is based upon the
combination or utilization of the Contractor's hardware,
software, firmware, equipment or instrumentation with
hardware, software, firmware, equipment or instrumentation not
made by the Contractor; or the modification by the Department
of hardware, software, firmware, equipment or instrumentation
furnished hereunder.
The Contractor shall have the sole control of the defense and
all negotiations for settlement or compromise of any action or
claim of any alleged infringement of any patent, copyright, or
trademark on hardware, software, firmware, equipment or
instrumentation used by the Contractor in the designing,
fabrication, and delivery of the deliverables as specified
herein to the extent that such control is not consistent with
the provisions of Article IV, Section 42 of the Los Angeles
City Charter, but in any event the Contractor shall have the
right to participate fully in such defense. The Department and
the Contractor shall mutually agree to any settlement or
compromise of such action.
6.9 Express Warranty Provision
Contractor warrants that the software furnished hereunder
shall be free from significant programming errors and form
defects in workmanship and materials and shall operate in
conformity with the performance capabilities, specifications,
functions and other descriptions and standards applicable
thereto as set forth in this Agreement; and that the software
shall conform to standards generally observed in the industry
for similar software (including source code) so long as
Contractor can discharge any warranty obligations
notwithstanding such modifications or following their removal
by the Department.
7.0 COMPENSATION
7.1 Specific Rates of Compensation
Upon satisfactory performance of the services required herein,
the Department agrees to pay and the contractor agrees to
accept in full satisfaction thereof the actual cost of
services rendered payable. The prices shall remain in effect
through October 31, 2005, unless amended by mutual agreement
of the Parties.
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7.2 Payment - Additional Services
Payment for additional services and expenses but related to
and required in the implementation of the Programs, shall be
negotiated between the parties and implemented by an amendment
to the Agreement.
7.3 Expenditure Limits
The total amount of this Agreement shall not exceed $2,100,000
without further appropriation to this Agreement by the Board
of Water and Power Commissioners of the City of Los Angeles.
8.0 BUSINESS POLICIES
8.1 LADWP Recycling Policy
LADWP supports the use of recycled-content products of all
types. Recycled-content products help conserve natural
resources, including water and energy, and reduce demands upon
landfills.
The Contractor shall submit all written documents on paper
with a minimum of 30 percent post-consumer recycled content.
Existing company/corporate letterhead/stationery that
accompanies these documents is exempt from this requirement.
Documents of two or more pages in length shall be duplex
-copied (double-sided pages). Neon or fluorescent paper shall
not be used in any written documents submitted to the
Department.
8.2 Affirmative Action
During the performance of any contract, the Contractor shall
not discriminate in its employment practices against any
employee or applicant for employment because of race,
religion, national origin, ancestry, sex, age or physical
handicap. All subcontracts awarded under such contract shall
contain a like nondiscrimination provision. The applicable
provisions of Executive Order NO. 11246 of September 24. 1965;
Part 60-741 of 41 CFR pertaining to handicapped workers,
including 60-741.4 Affirmative Action Clause; and Section 10.8
to 10.13 of the Los Angeles Administrative Code pertaining to
nondiscrimination in employment in the performance of City
contracts are incorporated herein by reference and made a part
hereof as if they were fully set forth herein.
8.3 Minority and Women Business Enterprise (MBE/WBE) Outreach
Program
It is the policy of the Department to provide Minority
Business Enterprises (MBEs), Women Business Enterprises (WBEs)
and all other business enterprises an equal opportunity to
participate in the performance of all Department contracts.
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The Contractor shall assist the Department in implementing
this policy and shall use its best effort to attain MBE and
WBE participation of 15 percent and 7 percent, respectively,
and to ensure that all available business enterprises,
including MBEs and WBEs, have an equal opportunity to compete
for and participate in the work of this agreement.
8.3.1 MBE/WBE Defined
"Minority Business Enterprise" (MBE) or "Women
Business Enterprise" (WBE), as used herein means a
business enterprise that meets both of the following
criteria:
a) A business that is at least 51 percent owned
by one or more minority person(s) or women
or, in the case of any business whose stock
is publicly held, at least 51 percent of the
stock is owned by one or more minority
person(s) or women.
b) A business whose management and daily
business operations are controlled by one or
more minority person(s) or women.
8.3.2 Efforts to Obtain Participation
Efforts to obtain participation of MBEs, WBEs, and
other business enterprises could reasonably be
expected to produce a level of participation by
interested subcontractors, including 15 percent MBEs
and 7 percent WBEs. Good faith efforts to reach out
to MBEs, WBEs, and all other business enterprises
shall be determined by the following factors:
1. Meetings with MBEs, WBEs, associations
representing MBEs, WBEs and other groups.
2. Identification of selected portions of the
work to be performed by subcontractors in
order to provide participation by MBEs,
WBEs, and other business enterprises. The
contractor shall, when economically
feasible, divide total contract requirements
into small portions or quantities to permit
maximum participation of MBEs, WBEs, and
other business enterprises.
3. Requests for proposals from interested
business enterprises or proposals in
newspapers, trade association publications,
minority or trade-oriented publications,
trade journals, or other appropriate media.
4. Providing written notice to those business
enterprises, including MBEs and WBEs, having
an interest in participating in this
Agreement. The contractor shall document
that invitations were sent to available
MBEs, WBEs, and other business enterprises
for each portion of the work.
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5. Documenting efforts to follow up initial
solicitations of interest by contacting the
business enterprises to determine whether
the enterprises are interested in
participating in the work.
6. Providing interested enterprises with
information about the plans, specifications,
and requirements for the selected
subcontracting work.
7. Requesting assistance from organizations
that provide assistance in the recruitment
and placement of MBEs, WBEs, and other
business enterprises.
8. Negotiating in good faith with interested
MBEs, WBEs, and other business enterprises
and not unjustifiably rejecting proposals
prepared by any enterprise. As
documentation, the bidder shall submit a
list of all documentation, the bidder shall
submit a list of all sub bidders for each
portion of potential work for MBEs, WBEs,
and other business enterprises.
9. Documenting efforts to advise and assist
interested MBEs, WBEs and other business
enterprises in obtaining bonds, lines of
credit, or required insurance.
8.3.3 Program Documentation
The Contractor shall submit quarterly reports to the
Contract Administrator demonstrating compliance with
the Department's Outreach Program, and make related
records available to the Department upon request. The
Reports shall be submitted on Department forms which
can be obtained from the Contract Administrator, and
show the following:
a) the name of each participating
subcontractor;
b) description of the work each subcontractor
has contracted to perform;
c) the percentage of completion for the work
under each subcontract;
d) the compensation contracted to be paid to
each subcontractor (attach a copy of
subcontractor's invoice);
e) the cumulative compensation earned by each
subcontractor; and
f) the cumulative compensation paid to each
subcontractor.
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8.4 Service Contract Worker Retention and Living Wage Policy
8.4.1 General Provisions
This contract is subject to the Service Contract
Worker Retention Ordinance (SCWRO), Section 10.36 et
seq, and the Living Wage Ordinance (LWO), Section
10.37 et seq of the Los Angeles Administrative Code.
The Ordinances require that, unless specific
exemptions apply, all employers who are awarded
service contracts that involve expenditures in excess
of $25,000 and have a duration of at least three
months; and any persons who receive City financial
assistance of one million dollars or more in any 12
-month period, shall comply with the following
provisions of the ordinance:
(a) Retention for a 90-day transition period,
the employees who were employed for the
preceding 12 months or more by the
terminated contractor or subcontractor, if
any, as provided for in the SCWRO;
(b) Payment of a minimum initial wage rate to
employees as defined in the LWO, of $7.99
per hour, with health benefits of at least
$1.25 per hour, or otherwise $9.24 per hour
without benefits.
8.4.2 Termination Provisions
Under the provisions of Section 10.36.3 (c) and
Section 10.37.5 (c) of the Los Angeles Administrative
Code, the Department of Water and Power, shall have
the authority, under appropriate circumstances, to
terminate this contract and otherwise pursue legal
remedies that may be available, if the Department of
Water and Power determines that the subject
Contractor or financial assistance recipient violated
the provisions of the referenced Code Section.
8.4.3 Invoice Provisions
All invoices related to SCWRO and LWO Contracts shall
contain the following statement:
"The Contractor fully complies with Section 10.36 et.
seq. And Section 10.37 et. seq., SCWRO and LWO,
respectively, of the Los Angeles Administrative
Code."
8.5 Child Support Policy
The Contractor and any Subcontractor(s) must fully comply with
all applicable State and Federal employment reporting
requirements for
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the Contractor's and any Subcontractor(s)' employees. The
contractor and any Subcontractor(s) must fully comply with all
lawfully served Wage and Earnings Assignment Orders and
Notices of Assignment in accordance with the California Family
Code. The Contractor and any Subcontractor(s) must certify
that the principal owner(s) thereof (any person who owns an
interest of 10 percent or more) are in compliance with any
Wage and Earnings Assignment Orders or Notices of Assignment
applicable to them personally. The Contractor and any
Subcontractor(s) must certify that such compliance will be
maintained throughout the term of the Contract.
Failure of the Contractor and/or any Subcontractor(s) to fully
comply with all applicable reporting requirements or to
implement lawfully served Wage and Earnings Assignments or
Notices of Assignment or failure of the principal owner(s) to
comply with any Wage and Earnings Assignments or Notices of
Assignment applicable to them personally shall constitute a
default under the Contract. Failure of the Contractor and/or
any Subcontractor(s) or principal owner(s) thereof to cure the
default within 90 days of notice of such default by the City
shall subject the Contract to termination.
9.0 INSURANCE REQUIREMENTS
9.1 General Insurance Coverage
Prior to the start of work, but no latter that 30 days after
date of award of contract, the Contractor shall furnish the
Department, evidence of coverage either on Department forms or
in a form which is acceptable to the Department and the Office
of the City Attorney for the kinds of insurance as specified
herein. Such insurance shall be maintained by the Contractor
at he Contractor's sole cost and expense.
Such insurance shall not limit or qualify the liabilities and
obligations of the Contractor assumed under the contract. The
Department shall not by reason of its inclusion under these
policies incur liability to the insurance carrier for payment
of premium for these policies.
Any insurance carried by the Department which may be
applicable shall be deemed to be excess insurance and the
Contractor's insurance is primary for all purposes despite any
conflicting provision in the Contractor's policies to the
contrary.
Said evidence or endorsement shall contain a provision that
the policy cannot be canceled or reduced in coverage or amount
without first giving 30 calendar days' notice thereof (10 days
for nonpayment of premium) by registered mail to the Office of
the City Attorney, Water and Power Division, Post Office Box
51111, 000 X. Xxxx Xx., Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000.
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Such evidence shall be subject to the approval of the Risk
Management Section and the Office of the City Attorney.
Department forms will be supplied at the time of award of
contract along with instructions for completion, execution,
and submission to the Department.
Should any portion of the required insurance be on a "Claims
Made" policy, the Contractor shall, at the policy expiration
date following completion of work, provide evidence that the
"Claims Made" policy has been renewed or replaced with the
same limits, terms and conditions of the expiring policy, or
that an extended discovery period has been purchased on the
expiring policy at least for the contract under which the work
was performed.
Failure to maintain and provide acceptable evidence of the
required insurance for the required period of coverage shall
constitute a breach of contract, upon which the Department may
immediately terminate or suspend the agreement.
Contractor shall be responsible for all subcontractors'
compliance with the insurance requirements.
9.2 Specific Coverage
9.2.1 Workers' Compensation Insurance
The Contractor shall provide Workers' Compensation
insurance covering all of the Contractor's employees
in accordance with the laws of any state in which the
work is to be performed and including Employer's
Liability insurance and a Waiver of Subrogation in
favor the Department of Water and Power. The limit
for Employer's Liability coverage shall be not less
than $2,000,000.00 each accident and shall be a
separate policy if not included with Workers'
Compensation coverage. Evidence of such insurance
shall be in the form of a special endorsement of
insurance. Workers' Compensation/Employer's Liability
exposure may be self-insured provided that the
Department is furnished with a copy of the
certificate issued by the state authorizing the
Contractor to self-insure. Contractor shall notify
the Risk Management Section by receipted delivery as
soon as possible of the state withdrawing authority
to self-insure.
9.2.2 Commercial General Liability Insurance
The Contractor shall provide Commercial General
Liability insurance with Blanket Contractual
Liability, Independent Contractors, Broad Form
Property Damage, Premises and Operations, Products
and Completed Operations, and Personal Injury
coverages included. Such insurance shall provide
coverage for total limits actually arranged by the
contractor, but
26
not less than $3,000,000.00 combined single limit per
occurrence. Should the policy have an aggregate
limit, such aggregate limits should not be less than
double the Combined Single Limit and be specific for
this contract. Umbrella or Excess Liability coverages
may be used to supplement primary coverages to meet
the required limits.
Evidence of such coverage shall be on the
Department's additional insured endorsement form or
on an endorsement to the policy acceptable to the
Risk Management Section and provide for the
following:
1) Include the Department and its officers,
agents, and employees as additional insureds
with the Named Insured for the activities
and operations under the contract.
2) Severability-of-Interest or Cross-Liability
Clause such as: "The policy to which this
endorsement is attached shall apply
separately to each insured against whom a
claim is made or suit is brought, except
with respect to the limits of the company's
liability."
3) A description of the coverages included
under the policy.
9.2.3 Commercial Automobile Liability Insurance
The Contractor shall provide Commercial Automobile
Liability insurance which shall include coverage's
for liability arising out of the use of owned,
non-owned, and hired vehicles for performance of the
work as required to be licensed under the California
or any other applicable state vehicle code. The
Commercial Automobile Liability insurance shall have
not less than $2,000,000.00 combined single limit per
occurrence and shall apply to all operations of the
Contractor.
The Commercial Automobile Liability policy shall name
the City of Los Angeles, the Board of Water and Power
Commissioners of the City of Los Angeles, the
Department of Water and Power of the City of Los
Angeles, and their officers, agents, and employees
while acting within the scope of their employment, as
additional insureds with the Contractor, and shall
insure against liability for death, bodily injury, or
property damage resulting from the performance of
this Agreement.
9.3 Excess Liability
The Contractor may use an Umbrella or Excess
Liability Coverage to meet coverage limits specified
in the contract. Evidence of Excess Liability shall
be in the form of the Department's Excess
Liability-Additional Insured Endorsement form or
equivalent. The Contractor shall require the carrier
for Excess Liability to properly schedule and to
identify the underlying policies as provided for on
the Additional Insured
27
Endorsement form, including, as appropriate,
Commercial General Liability, Commercial Automobile
Liability, Employer's Liability, or other applicable
insurance coverages.
9.4 Fidelity Bond
The contractor shall maintain a fidelity bond covering
Employee dishonesty in an amount arranged by the Contractor,
but not less than $1,000,000 aggregate, and shall apply to any
and all work performed on behalf of the Department. Said bond
shall name the City of Los Angeles, the Board of Water and
Power Commissioners of the City of Los Angeles, the
Department, and their officers, agents and employees, as
additional insureds with the Contractor individually and
jointly, and shall insure against liability resulting from the
Contractor's employees' dishonesty in the performance of this
contract. Said bond shall contain a provision that the bond
cannot be cancelled, terminated or altered without first
giving 30 calendar days' written notice of such cancellation,
termination or alteration as previously described under
General Insurance Coverage. Evidence of such bond shall be
provided to the Department in a form acceptable to the office
of the City Attorney.
9.5 Professional Liability Insurance
The Contractor shall provide Professional Liability insurance
covering liability arising from errors and omissions made
during the execution of this contract for the total limits
actually arranged by the contractor, but not less than$
1,000,000.00 per occurrence. The coverage shall include
Contractual liability, and should the policy be of a
claims-made form, such policy shall be maintained for not less
than three (3) years after the date of final acceptance or
completion of all work performed under this agreement.
9.6 Indemnification Clause
The Contractor undertakes and agrees to indemnify and hold
harmless the City of Los Angeles, the Department of Water and
Power, the Board of Water and Power Commissioners of the City
of Los Angeles, the Department, and their officers, agents,
representatives, employees, assigns and successors in interest
from and against any and all suits and causes of action,
claims, charges, damages, demands, judgments, civil fines and
penalties, or losses of any kind or nature whatsoever for
death, bodily injury or personal injury to any person,
including Contractor's employees and agents, or damage or
destruction to any property of either party hereto, or third
person in any manner arising by reason of negligent acts,
errors, omissions or willful misconduct incident to the
performance of this contract on the part of the Contractor, or
the Contractor's officers, agents, employees, or
subcontractors of any tier, except for the sole negligence or
willful misconduct of the Department, its Board, officers,
agents, representatives or employees.
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10.0 INVOICES
The Contractor shall be authorized to submit an itemized payment
request for services performed on a monthly basis. Such request shall
be submitted to:
Los Angeles Department of Water and Power
Xx. Xxxxxxxx X. Xxxxx
Contract Administrator
X.X. Xxx 00000, Xxxx 0000
Xxx Xxxxxxx, XX 00000-0000
10.1 Invoice Detail
The invoice shall be submitted by the Contractor in the form
of one original and three copies. The detailed invoice shall
include the following information:
(a) Itemized charges, for Contractor services that have
been pre-approved by the Department and completed
during the invoice period; and
(b) Itemized charges for task assignments and services as
requested by the Department and completed during the
invoice period. Charges shall be in accordance with
the respective task assignment and price schedule.
The Payment Request will be certified, audited, and paid by
the Department within 45 days following receipt of a complete
and accurate invoice. Invoice payments will not be made if the
invoice is received more than six months after the billing
period.
Each invoice shall show the contract/purchase order number,
the vendor code number, the City of Los Angeles Business Tax
Registration Certificate Number, and the identification of
services covered by the invoices.
10.2 Current Los Angeles City Business Tax Registration Certificate
Required
The Contractor shall obtain and keep in full force and effect
during the term of the contract all Business Tax Registration
Certificates required by the City of Los Angeles Business Tax
Ordinance, Article 1, Chapter II, Section 21.00 and following,
of the Los Angeles Municipal Code.
29
10.3 Taxpayer Identification Number (TIN)
Contractor declares that its authorized TIN is 00-0000000. No
payment will be made under this agreement without a valid TIN
number.
11.0 CONFLICTS
11.1 Errors and Omissions
The contractor will be responsible for correcting or remedying
any errors or omissions which occur in performance of the
services under this Agreement and which are the result of the
contractor's negligence or action. The cost of correcting or
remedying any error or omission shall be borne by the
contractor. Revising contractor-prepared documents at the
request of the Department to incorporate comments by the
public or by agencies having jurisdiction in matters of the
particular task assignment is not considered to be a remedy of
errors or omissions, but is considered an integral part of
document preparation which may be called for by a task
assignment.
11.2 Priority of Documents
In the event of any conflicting provisions between the
documents referenced or included in this Agreement, the
priority shall be as follows:
a. Amendments to the Agreement, incorporating change
orders, in chronological order from the most recent
to the earliest.
b. Written Change Orders to the Agreement in
chronological order from most recent to earliest.
c. Agreement.
d. Task Assignments.
e. Other Referenced Documents.
Each party shall notify the other immediately upon the
determination of any such conflict or inconsistency.
12.0 MONITORING OF WORK
12.1 Records and Audits
The Contractor shall maintain records and books of accounts
showing all costs and expenses incurred by the Contractor for
this Agreement. The Department
30
shall have the right, upon reasonable notice, to audit the
books, records, documents, and other evidence and the
accounting procedures and practices, where needed, to verify
the costs and expenses claimed. The Department retains this
right for at least three years after final payment and until
all disputes, appeals, litigation, or claims have been
resolved. This right to audit shall also include inspection at
reasonable times of the Contractor's office or facilities
which are engaged in the performance of the Agreement. In
addition, the Contractor shall, at no expense to the
Department, furnish reasonable facilities and assistance for
such an audit. Upon request, Contractor shall also provide
copies of documents applicable to this Agreement. The audit
findings shall, to the extent allowed by law, be treated by
the Department as confidential.
12.2 Right to Review Services, Facilities, and Records
The Department reserves the right to review any portion of the
services performed by the contractor under this Agreement, and
the contractor agrees to cooperate to the fullest extent
possible. Contractor shall furnish to the Department such
reports, statistical data, and other information pertaining to
the contractor's services as shall be reasonably required by
the Department to carry out its rights and responsibilities
under its agreements with its bondholders or noteholders and
any other agreement relating to the development of the
project(s) and in connection with the issuance of its official
statements and other prospectuses with respect to the
offering, sale, and issuance of its bond and other
obligations.
The right of the Department to review or approve drawings,
specifications, procedures, instructions, reports, test
results, calculations, schedules, or other data that are
developed by the contractor shall not relieve the contractor
of any obligation set forth herein.
12.3 Department's Quality Assurance Program
Work performed under this agreement will be subject to review
by the Department's personnel.
13.0 TITLE TO WORK
13.1 Confidentiality of Department Information
All data and information, including that supplied by the
Department to the Contractor, that obtained by the Contractor
from the Department's customers, and that developed by the
Contractor in the course of providing Program management and
administration services to the Department shall be held in
strict confidence and shall be used solely for the performance
of the Work pursuant to this Agreement.
Contractor, its employees, and any subcontractors shall not
disclose any Program or customer information to any person
other than the
31
Department's personnel, or the Department's designated agent,
either during the term of this Agreement or after its
completion, without Contractor having obtained the prior
written consent of the Department, except as provided by
lawful court order or subpoena and provided contractor gives
the Department advance written notice of such order or
subpoena.
13.1.2 Department Property
The Contractor shall not copy any drawing,
specification, technical report, or data provided by
the Department. The Contractor shall return all
materials provided by the Department. All materials
shall be returned no later than the closing date of
the Agreement.
13.2 Right to Documentation Developed by Contractor
Documentation, including all reports, drawings, documents,
field notes, specifications, and data developed by the
contractor and its subcontractors, shall be the property of
the Department, and may be used; revised, and distributed by
the Department in any manner.
13.2.1 Nondisclosure
The contractor shall not disclose to others any
information developed by contractor under this
Agreement without prior written approval by the
Contract Administrator.
13.2.2 Attorney Fees and Costs
The Parties agree that in any action to enforce the
terms of this Agreement that each Party shall be
responsible for its own attorney fees and costs.
13.3 Confidentiality of Contractor Information
The Department, its employees and any agents or subcontractors
of the Department shall not disclose any confidential or
proprietary information of Contractor ("Contractor's
Confidential Information") to any person other than
Contractor's personnel, either during the term of the
Agreement, or after its completion, without having obtained
their prior written consent of Contractor
13.3.1 The Department agrees that, without the prior written
consent of Contractor, it will not, during the term
or after termination of this Agreement, directly or
indirectly, disclose to any individual, corporation,
or other entity, or use for its own or such other's
benefit, any of Contractor's Confidential
Information, whether reduced to written or other
tangible form, which:
32
a) Is not generally known to the public or in
the industry;
b) Has been treated by Contractor or any of its
subsidiaries as confidential or proprietary;
and
c) Is of a competitive advantage to Contractor
or any of its subsidiaries and in the
Confidentiality of which Contractor or any
of its subsidiaries has a legally
protectable interest.
13.3.2 Contractor's Confidential Information which becomes
generally known to the public or in the industry, or,
in the confidentiality of which, Contractor and its
subsidiaries cease to have a legally protectable
interest, shall cease to be subject to the
restrictions of this Paragraph.
13.4 Title of Collected Refrigerators and Freezers
13.4.1 Title to the Hazardous Material shall pass to
Contractor when Contractor collects Primary or Second
Refrigerator and Freezers from customers and said
Title shall be held by the Contractor until the
Primary or Second Refrigerators and Freezers are
transported to the Department's Recycling Center.
Subsequently the Title to the Hazardous Material
shall pass to the Recycling Contractor.
13.4.2 Title to collected Primary or Second Refrigerators
and Freezers shall pass to Contractor until the
Primary or Second Refrigerators and Freezers are
transported to the Department's Recycling Center.
Subsequently, the Title to the collected Primary or
Second Refrigerators and Freezers shall pass to the
Recycling Contractor.
14.0 SECTION HEADING
Section headings appearing in this Agreement are for convenience only
and shall not be constructed as interpretations of text.
33
15 SIGNATURE OF AUTHORIZING AGREEMENT
Each party was represented by counsel in the negotiations and execution
of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their authorized representatives on the day and year written below.
APPLIANCE RECYCLING CENTERS OF AMERICA- CALIFORNIA, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------------
Title: President
-----------------------------------------------------
Dated: 9/26/02
-----------------------------------------------------
DEPARTMENT OF WATER AND POWER
OF THE CITY OF LOS ANGELES
BY
BOARD OF WATER AND POWER COMMISSIONERS
OF THE CITY OF LOS ANGELES
By: /s/Xxxxx X. Xxxxx, General Manager
-----------------------------------------------------
And /s/Secretary
-----------------------------------------------------
APPROVED AS TO FORM AND LEGALITY
XXXXXXX X. XXXXXXXXXX, CITY ATTORNEY
OCT 08 2002
BY XXXXXX XXXXX XXXXXX
Assistant City Attorney
34
