EXHIBIT 10.1
APPLIANCE EARLY RETIREMENT & RECYCLING AGREEMENT
FOR REFRIGERATORS, FREEZERS, AND ROOM AIR CONDITIONERS
BETWEEN
APPLIANCE RECYCLING CENTERS OF AMERICA, INC.
AND
THE CALIFORNIA PUBLIC UTILITIES COMMISSION
APPLIANCE EARLY RETIREMENT & RECYCLING AGREEMENT
FOR REFRIGERATORS, FREEZERS, AND ROOM AIR CONDITIONERS
TABLE OF CONTENTS
1. DEFINITIONS.............................................................2
2. GENERAL TERMS...........................................................5
3. CONTRACT DOCUMENTS......................................................5
4. SCOPE OF WORK...........................................................5
5. CUSTOMER AND APPLIANCE ELGIBILITY......................................10
6. OWNERSHIP AND CONFIDENTIALITY..........................................12
7. COMMERCIAL TERMS.......................................................14
8. BILLING................................................................16
9. RIGHT TO AUDIT.........................................................17
10. CHANGES................................................................17
11. PERMITS, CODES AND STATUTES............................................17
12. WARRANTY...............................................................18
13. TITLE..................................................................18
14. INSURANCE..............................................................18
15. INDEMNITY..............................................................20
16. TERM AND TERMINATION...................................................21
17. WRITTEN NOTICES........................................................21
18. SUBCONTRACTS...........................................................22
19. NON-WAIVER.............................................................22
20. ASSIGNMENT.............................................................23
21. FORCE MAJEURE..........................................................23
APPLIANCE EARLY RETIREMENT & RECYCLING AGREEMENT
FOR REFRIGERATORS, FREEZERS, AND ROOM AIR CONDITIONERS
TABLE OF CONTENTS
22. GOVERNING LAW..........................................................23
23. SECTION HEADINGS.......................................................23
24. SURVIVAL...............................................................23
25. NONRELIANCE............................................................24
26. COOPERATION............................................................24
27. ENTIRE AGREEMENT.......................................................24
28. NON DISCRIMINATION CLAUSE..............................................24
29. CERTIFICATION CLAUSE...................................................24
30. CHILD SUPPORT COMPLIANCE...............................................24
31. UNION ORGANIZING.......................................................25
32. SETTLEMENT OF DISPUTES.................................................25
33. MEDIA RELATIONS........................................................25
34. TERMINATION-BANKRUPTCY.................................................26
35. TERMINATION IN EVENT OF BREACH.........................................26
36. CONFLICT OF INTEREST...................................................27
37. COUNTERPARTS...........................................................27
THIS AGREEMENT ("Agreement") is made and entered into as of the lst day of June,
2001, by and between THE CALIFORNIA PUBLIC UTILITIES COMMISSION, an agency of
the State of California ("CPUC") and APPLIANCE RECYCLING CENTERS OF AMERICA,
INC., a Minnesota corporation ("Contractor"). The CPUC and Contractor are also
each individually referred to herein as "Party" and collectively as "Parties."
The Term of this Agreement shall be from June 1, 2001 through May 31, 2002 and
shall not exceed $14,624,856 unless changed by an amendment to this Agreement.
RECITALS
WHEREAS, the Parties wish to enter into an agreement with respect to
the early retirement and recycling of older inefficient refrigerators, freezers,
and room air conditioners to achieve electric energy savings and peak load
demand reductions under the terms set forth below for the period June 2001
through May 2002 (the "Agreement").
WHEREAS, the CPUC desires to ensure the safe, lawful recovery and
recycling or lawful disposal, as necessary, of CFCs/HCFCs/HFCS, PCBS, mercury,
and used oil ("Hazardous Materials") contained in refrigerators, freezers, and
room air conditioners ("Appliances").
WHEREAS, in furtherance thereof, the CPUC desires to contract with
Contractor for the turnkey implementation of its Statewide Appliance Early
Retirement and Recycling Program for Refrigerators, Freezers, and Room Air
Conditioners ("Program").
WHEREAS, Contractor desires to contract with the CPUC for the turnkey
implementation of the Program, said implementation to include
marketing/advertising, collection and dismantling of Appliances; removal of
Hazardous Materials from collected Appliances; handling storage and legal
disposal of Hazardous Materials; recycling of metals, CFCs/HCFCs/HFCs, mercury,
and oil; proper disposal of PCB articles; providing Incentives to participating
eligible jurisdictional electric Customers who relinquish working Appliances;
conducting a customer survey; and providing reports and data to assist the CPUC
in tracking program expenditures and evaluating the Program.
WHEREAS, Contractor represents (i) that it has knowledge of the federal
Clean Air Act, the Resource Conservation and Recovery Act, and Toxic Substances
Control Act as well as the California Health and Safety Act (Article 10.1,
commencing with Section 25211 of Chapter 6.5 of Division 20), the California
Public Resources Code (Chapter 3.5, commencing with Section 42160 of Part 3 of
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Division 30), and all other applicable federal, state, and local regulations
regarding the proper processing and recycling of Appliances and Hazardous
Materials contained within the Appliances, (ii) that it has knowledge of the
hazards associated with the removal, handling, storage, recycling, and legal
disposal of Hazardous Materials, (iii) that it has experience and expertise in
such removal, handling, storage, recycling, and legal disposal, (iv) that it
uses only qualified personnel, (including subcontractor's and agent's personnel)
who have been instructed and certified in the proper safety procedures to be
used in such removal, handling, storage, recycling, or legal disposal, and (v)
that it has established and will continue to operate and maintain its recycling
center in the City of Xxxxxxx or other areas acceptable to Contractor and the
CPUC.
WHEREAS, the Parties hereto desire to set forth terms and conditions
under which the aforesaid turnkey implementation services shall be performed and
which shall constitute the Parties' agreement.
NOW THEREFORE, in consideration of the foregoing Recitals, the mutual
covenants contained herein, the payments and agreement to be made and performed
by the CPUC as set forth in the pricing schedule attached hereto as EXHIBIT A
and incorporated by reference herein, the Parties agree as follows:
1. DEFINITIONS
1.1 Agreement: This document, the terms and conditions contained
in this Agreement as amended from time to time.
1.2 Amendment: supplemental terms and conditions for performing
the Work as mutually agreed to and signed by Contractor and
the Commission's Project Manager.
1.3 CFCs/HCFCs/HFCs: Chlorofluorocarbons,
hydrochlorofluorocarbons, and hydrofluorocarbons used as
refrigerant gases in refrigerators, freezers, and room air
conditioners.
1.4 CFC-11: Chlorofluorocarbons used as the blowing agent in the
polyurethane foam insulation used in refrigerators and
freezers.
1.5 Change Order: Document issued by the CPUC to Contractor to
change a Purchase Order otherwise known as an Amendment.
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1.6 Contract Period: June 1, 2001 to May 31, 2002, or as extended
by mutual agreement of the Parties and approved by the
Commission's Executive Director or designee.
1.7 Disposition Code: Code assigned to each customer order that
identifies whether a working Appliance was collected, or
disabled with the customer's permission, if the order was
cancelled by the customer and other similar details regarding
each order.
1.8 Documentation: Specifications, procedures, instructions,
reports, test results, analyses, calculations, manuals, and
other data specified in the Purchase Order, Change Order, this
Agreement, and any amendment to this Agreement, as required by
any legal entity having jurisdiction over the Work.
1.9 Eligible Appliances: Refrigerators, Freezers, and Room Air
Conditioners that meet the Program appliance eligibility
criteria as set forth in Section 5.
1.10 Eligible Customers: Jurisdictional residential electric
service customers who meet the customer eligibility criteria
in Section 5.
1.11 Freezer: a free-standing freezer utilized by customer
concurrently with primary refrigerator.
1.12 Hazardous Materials: Any substance or material which has been
designated as hazardous or toxic by the U.S. Environmental
Protection Agency, the California Department of Toxic
Substances Control and/or any other governmental agency 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 Section 42167, which is contained in or is
derived from the Refrigerators, Freezers, or Room Air
Conditioners.
1.13 Program: The Appliance Early Retirement and Recycling Program
for Refrigerators, Freezers, and Room Air Conditioners as
defined by this Agreement.
1.14 Program Participants: Eligible customers who turn in
qualifying Refrigerators, Freezers, or Room Air Conditioners.
1.15 PCBS: Polychlorinated Biphenyls.
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1.16 Purchase Order: Amendment document issued by the CPUC to
Contractor and executed by the Parties, which contains
additional terms and conditions for the Work described herein
and approved by the Commission's Executive Director or
designee.
1.17 Recycling Center: The site at which Contractor will process
Appliances, remove CFCs/HCFCs/HFCs, PCBS, mercury, used oils
and other Hazardous Materials, and recycle or legally dispose
of Hazardous materials.
1.18 Basic Recycling Charge: Per-unit price for services performed
by Contractor under scope of work, excluding
marketing/advertising, CFC-11 recovery services, customer
Incentives, and financing services.
1.19 Primary refrigerator: refrigerator currently in use by
customer as the main refrigeration appliance.
1.20 Secondary refrigerator: Surplus refrigerator utilized by
customer concurrently with primary refrigerator.
1.21 Room air conditioner: a window/wall air conditioner utilized
by customer to provide space cooling in a room.
1.22 Subcontractor: Either an entity contracting directly with
Contractor to furnish services or materials as part of or
directly related to, the Work; or an entity contracting with
Subcontractor of any tier to furnish services or materials as
a part of, or directly related to, the Work.
1.23 Work: Any and all obligations of Contractor to be performed
pursuant to this Agreement or a subsequent Purchase Order or
Change Order incorporating this Agreement, such as Appliance
marketing/advertising, customer services, Appliance
collection, Appliance processing, handling, storing,
recycling, and legal disposal, of Hazardous Materials and
Documentation preparation.
1.24 Remote Area: a city or town that, because of its population
and distance from the Contractor's base of operations,
justifies the use of an extended timeframe (up to 25 business
days from the initial customer contact) to complete collection
when mutually agreed to by the parties.
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2. GENERAL TERMS
2.1 Contractor shall perform the Work and its associated
obligations described below as an independent contractor.
2.2 This Agreement shall be supplemented by an Amendment
containing additional terms and conditions for performing the
work described below.
3. CONTRACT DOCUMENTS
3.1 This Agreement shall consist of the following documents: this
Agreement, any amendments to this Agreement and Change Orders.
In the event of any conflict or apparent conflict between any
of the provisions of the documents comprising this Agreement,
the following order of construction of the documents shall
apply:
3.1.1 Amendments to the Agreement in chronological order
from the most recent to the earliest;
3.1.2 Change Orders incorporating and reflecting any
Amendments to the Agreement in chronological order
from the most recent to the earliest; and
3.1.3 This Agreement.
3.2 Each Party shall notify the other immediately upon the
identification of any such conflict or inconsistency.
4. SCOPE OF WORK
4.1 Contractor shall be responsible for developing and placing
advertising and marketing to inform all eligible residential
customers of the Program. Advertising may include: television
ads, radio ads, newspaper ads, xxxx inserts, brochures,
postcards, and point-of-sale materials that are prepared in
both Spanish and English. Advertising and marketing materials
shall be approved by the CPUC Project Manager prior to their
use.
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Contractor shall be responsible for customer service
activities, including providing inbound 800 telephone numbers
for Customers, a webpage which allows Customer access for
inquiries and/or qualification and signup 24 hours a day,
seven days a week, (see Section 4.9), all communication
services, verification of customer and appliance eligibility,
scheduling collection appointments, documentation of customer
data, and other activities.
Contractor shall be responsible, to the complete satisfaction
of the CPUC, for the management of customer complaints and the
Contractor shall undertake activities to resolve customer
complaints in an expedited manner including: ensuring adequate
levels of professional customer service staff, direct access
of customer complaints to supervisory and/or management
personnel and ensuring sufficient levels of delivery personnel
expected during times of high volumes. Contractor shall
provide on a monthly basis, information on the number,
characterization and resolution of customer complaints.
Contractor shall also develop advertising and marketing
suitable for use in encouraging Program by participating low-
and moderate-income customers, as defined as federal poverty
guidelines, which may include providing Program information to
local organizations providing other energy or economic
assistance services to the low- and moderate-income customers,
direct mail to targeted zip codes in the Program service areas
or other appropriate methods.
The CPUC agrees to provide assistance to the Program's
marketing/advertising efforts by promoting Appliance Early
Retirement & Recycling through press releases, Program-related
events, Flex Your Power Campaign activities, and formal
linkages to other Appliance energy efficiency/conservation
programs under the jurisdiction of the CPUC.
4.2 Contractor shall
(i) collect all Eligible Appliances from Customers' residences
within 20 business days from the date of initial customer
contact (unless otherwise requested by the Customer). In
Remote Areas, or as approved by the CPUC's Project Manager,
collection shall be no later than 25 business days from the
date of the initial customer contact, unless otherwise
requested by Customer. In the event of unanticipated high
demand (beyond the projected monthly participation estimates)
for Program services, Contractor and the CPUC Project Manager
shall, by mutual agreement, establish other appropriate time
limitations as necessary. For purposes of this section, the
Remote Areas shall be specified by Amendment to the Agreement
to include individual cities and towns the
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Program services areas. EXHIBIT B shall be used to identify
these agreed upon cities and towns (including zip codes) that
the Parties agree are appropriate for inclusion in the Remote
Area list.
(ii) ensure that the Eligible Appliance is an operating unit
before removing it from a residence;
(iii) disable the unit prior to leaving pick-up location;
(iv) transport the Appliance to the Recycling Center.
4.3 Contractor shall be solely responsible for all methods,
techniques, sequences, and procedures for the dismantling of
Eligible Appliances, processing of metal panels and
components, recycling of recovered scrap metal, removal,
recycling, or lawful disposal of Hazardous Materials.
4.4 Contractor shall be solely responsible for all methods,
techniques, sequences, and procedures for the removal and
management of all Hazardous Materials found in Eligible
Appliances, and the removal and recycling or disposal
Hazardous Materials from the time Contractor collects Eligible
Appliances pursuant to this Agreement.
4.5 Contractor shall document and maintain records for services
under this Agreement, or Amendment incorporating this
Agreement, as follows:
4.5.1 A Customer Comment Tracking System for recording
customer inquiries, complaints, and positive
feedback.
4.5.2 Appliance Turn-in Order Form to collect data such as
customer name, address, home and work phone numbers;
utility distribution company name; Appliance
manufacturer's name; Appliance model and style;
defrost type; color, size (cubic footage for
refrigerators and freezers or BTUs for room air
conditioners), and estimated age of unit; location of
Appliance within the residence; amperage, final
disposition code (which indicates operating condition
of Appliance and/or Incentive received)
identification of units containing CFC-11; special
pick-up instructions (if applicable) and signature of
customer in the event Appliance is discovered not to
be an Eligible Appliance as certified, customer
acknowledges liability to the CPUC for program costs
associated with the services received.
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4.5.3 Compilation of data in subsection 4.5.2 in electronic
mode, employing a software program suitable for
exchange of information with the CPUC, subject to the
approval of CPUC's Project Manager.
4.6 Contractor shall conduct a customer survey, comparable to
EXHIBIT C, which is attached and incorporated by reference
herein, using a stratified purposeful sample of 5% to 20% of
the Program Participants. The stratification and frequency of
the survey may be modified periodically the CPUC, provided
that an Amendment to this Agreement or a separate agreement
shall be entered into if any such modification necessitates
unreasonable labor, as substantiated by Contractor, requiring
the negotiation of a charge separate from the Recycling
Charge. The purpose of the survey shall be to elicit
information such as appliance use, customer demographics and
customer satisfaction. Survey questions and response
selections may be modified periodically as determined by the
CPUC provided modified survey is reasonably comparable to
EXHIBIT C.
4.7 Contractor and the CPUC shall establish and implement a
financial incentive service as follows:
4.7.1 Each Program Participant will be entitled to receive
a check in the amount of fifty Dollars ($50.00) for
each refrigerator or freezer and twenty-five Dollars
($25.00) for each room air conditioner.
4.7.2 Customer Incentive checks shall be processed and
mailed via the U.S. Postal System within 20 business
days of the date the Eligible Appliance was picked
up.
4.7.3 Contractor shall provide the CPUC with a weekly
listing of Customers qualifying for an Incentive.
Customers qualifying for an Incentive are Program
Participants who turn in an Eligible Appliance for
which the Program will pay a per-unit price as set
forth in Section 4.7.1.
4.7.4 Upon the CPUC's reimbursement of Contractor for the
Incentives described in Section 7.4 of this
Agreement, the CPUC shall be under no further
obligation with respect to reimbursement of such
amounts and such reimbursement shall constitute full
payment to Contractor on behalf of the Program
Participants entitled to Incentives. Moreover, upon
the CPUC's payment to Contractor of such
reimbursement, Contractor shall be deemed the holder
of such property as far as the interests of the
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Program Participants entitled thereto are concerned
for any and all purposes, including, but not limited
to, complying with the unclaimed property laws of
California and any and all other applicable states.
The CPUC shall not assume any responsibility for
other disposition of the reimbursement payments after
such reimbursement is paid to Contractor and shall
not be entitled to the reversion of any amounts so
paid.
4.7.5 On a weekly basis, in arrears, Contractor shall
prepare an invoice for the CPUC to substantiate the
charges due for Contractor's payment of Customer
Incentives. The Invoice shall include an ATO report
showing the payment of Incentives during the billing
period. All invoices will be paid pursuant to Section
8.5.
4.8 Contractor shall provide the CPUC with reports for the
services performed under this Agreement as follows:
4.8.1 A monthly report, provided no later than the 15th day
of the month which shall contain the following:
(a) the number of Eligible Appliances processed
through the Recycling Center during the previous
month and the size (in cubic feet for refrigerators
and freezers and BTUs for room air conditioners),
year of manufacture, style, and defrost type.
(b) environmental data such as an estimated breakdown
of amount of CFCs/HCFCs/HFCs recovered; number of
pounds of PCB articles removed; number of pounds of
mercury articles removed; number and size of CFC-11
units recycled; amount of compressor oil recycled;
and weight of metals materials sold for recycling;
and the weight of non-recyclable materials disposed.
(c) the monthly Customer Comment Tracking System
information required pursuant to Section 4.5.1.
4.8.2 A final report no later than thirty (30) days after
the termination of this Agreement of all amounts paid
by Contractor in compliance with any unclaimed
property laws pursuant to Section 4.7.4 hereof.
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4.8.3 Upon reasonable written request from an authorized
representative of the CPUC, special and nonrecurring
reports during the course of the Program shall he
prepared by Contractor. Such report content will be
developed by the Parties in anticipation of requests
from the Governor, Legislature, internal audits, or
compilation of data relevant to the activities of the
CPUC. An amendment to this Agreement or a separate
agreement shall be entered into only if any such
report necessitates unreasonable labor, as
substantiated by Contractor, requiring the
negotiation of a charge separate from the Basic
Recycling Charge.
4.8.4 The Contractor shall cooperate fully with an
independent third-party monitoring and verification
(M&V) report of the program. The report will address
both impact and process evaluation aspects of the
program. As part of the M&V report the CPUC will
require a Total Resource Cost (TRC) Test analysis of
the program cost effectiveness to be conducted.
4.8.5 Contractor shall utilize a computer software program
designed to allow the Contractor's Appliance Turn-In
Order Form ('ATO') to assign a disposition code for
each customer order. In all cases, when Contractor
picks up an Eligible Appliance from a Program
Participant, Contractor shall obtain the Program
Participant's signature on the Contractor's ATO.
4.8.6 On a weekly basis, Contractor shall prepare an
invoice for the CPUC to substantiate the fees due for
Contractor's payment of Customer Incentives. The
Invoice shall include an ATO report showing the
payment of Incentives during the billing period. All
Invoices will be paid pursuant to Section 8.5.
4.9 Contractor shall design and implement a website which enables
potential customers to electronically submit information for
pre-qualification and initiate scheduling appointments on a 24
hour, seven day a week basis. The website content shall be
approved by the CPUC Project Manager. Any changes to the
content must be reviewed and approved prior to implementation.
The site shall match the "look and feel" of the CPUC server
page, or the Flex Your Power server page, which shall host the
link.
5. CUSTOMER AND APPLIANCE ELIGIBILITY
5.1 Customer eligibility for the Program shall depend on the
following:
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5.1.1 Customer is a resident in the service territories
identified by the CPUC in Section 5.5 and occupies a
single-family residential (Domestic Rate) or
multi-unit dwelling or mobile home. Eligible
customers exclude Low-Income Energy Efficiency (LIEE)
program participants receiving a new refrigerator and
who are required to surrender their old refrigerator
under the requirements of that program.
5.1.3 Customer is the owner of the Eligible Appliance or
possesses written consent from the actual owner to
turn in the Eligible Appliance.
5.1.4 Customer turns in no more than four appliances of any
combination per household annually. Contractor will
strive for an 80/20 split between
refrigerators/freezers and room air conditioners as
overall program goals subject to modification by
mutual agreement.
5.2 Commercial electric service customers do not qualify for the
Program. Landlords are considered commercial customers. At
such time that landlords may be included in the program, an
amendment will be issued outlining the terms and conditions of
the program expansion.
5.3 Refrigerator, Freezer and Room Air Conditioner eligibility for
the Program shall depend on the following:
5.3.1 Appliance must be capable of cooling or freezing, or
both, as applicable, at time of collection.
5.3.2 Refrigerator or Freezer minimum size is 10 cubic feet
and maximum size is 27 cubic feet.
5.3.3 Room air conditioners must be capable of blowing
cooled air with size limitation determined by both
parties.
5.4 Commercial refrigerators, ammonia-containing gas
refrigerators, commercial freezers, central air conditioners,
and window/wall evaporative coolers do not qualify for the
Program.
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5.5. The Parties agree that eligible jurisdictional residential
electric service customers of Investor Owned Utility companies
residing in the following counties shall be eligible to
participate in the Program, or as mutually agreed to by future
Amendments to the Agreement:
SDG&E Service Territory: San Diego and South Orange Counties
PG&E Service Territory: Fresno, Kings, Madera, San Xxxxxxx and
Stanislaus Alameda, Contra Costa, Marin, San Francisco, San
Mateo, Santa Xxxxx And Santa Xxxx
6. OWNERSHIP AND CONFIDENTIALITY
6.1 All information disclosed by the CPUC during meetings or
negotiations with regard to the Program, and any information
contained in drawings, specifications, technical reports, and
data provided by the CPUC 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.
6.2 Pursuant to Public Utilities Code 582 and General Order 66-C,
Contractor, its employees, and any subcontractors shall not
disclose any Program or customer information to any person
other than the CPUC's personnel either during the term of this
Agreement or after its completion, without Contractor having
obtained the prior written consent of the CPUC, except as
provided by lawful court order or subpoena and provided
Contractor gives the CPUC advance written notice of such order
or subpoena. Prior to any approved disclosure, persons
receiving said information, including Contractor, its
employees, or third parties, must enter into a nondisclosure
agreement with the CPUC. Contractor agrees to require its
employees and subcontractors to execute a nondisclosure
agreement prior to performing any services under this
Agreement. This provision, however, does not prohibit
Contractor from disclosing non-confidential information
concerning the Program in any CPUC proceeding, CPUC-sanctioned
meeting or other public forum.
6.3 All materials provided by the CPUC to Contractor during the
performance of this Agreement shall be returned to the CPUC
after this Agreement is terminated or at the request of the
CPUC. Contractor shall not duplicate any material furnished by
the CPUC without prior written approval from the CPUC.
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6.4 All information, material, and documents prepared or caused to
be prepared under this Agreement by Contractor shall become
the property of the CPUC. Such information, or derivative
information, materials, and documents, shall be used by
Contractor only for work performed directly for the CPUC, and
shall not be used in Contractor's general course of business,
disclosed nor revealed in any way to a third party without the
prior express written consent of the CPUC.
6.5 All information disclosed by Contractor to the CPUC during
meetings or negotiations with regard to the Program, and any
information contained in drawings, specifications, technical
reports, and data provided by contractor to the CPUC during
performance of this Agreement, shall be held in confidence by
the CPUC, and used only in relation to the Work pursuant to
this Agreement.
6.6 Except as required by the CPUC, the CPUC's employees and any
subcontractors of the CPUC shall not disclose any confidential
or proprietary information provided by 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
the prior written consent of Contractor. By way of example,
Contractor's Confidential Information shall include, without
limitation, Contractor's systems for oil degassing, CFC
recovery, CFC-11 recovery and Contractor's computer software.
Prior to any approved disclosure, persons to receive
Contractor's Confidential Information, including the CPUC, its
employees or any third-party, must enter into a nondisclosure
agreement with Contractor. The CPUC agrees to require its
employees to execute appropriate nondisclosure agreements
prior to any contact with, or evaluation of Contractor's
Confidential Information.
6.7 The CPUC 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:
6.7.1 Is not generally known to the public or in the
industry;
6.7.2 Has been treated by Contractor or any of its
subsidiaries as confidential or proprietary; and
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6.7.3 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.
6.8 Contractor's Confidential Information that 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 Section 6.
7. COMMERCIAL TERMS
7.1 Payment
No payment shall be made under this Agreement until the CPUC
has received a signed Agreement from the Contractor and
approval has been obtained from the Commission's Executive
Director or designee. The CPUC shall pay to Contractor, as
full compensation for completing the Work, the prices set
forth in EXHIBIT A in accordance with the payment provisions
set forth below in subsections 7.2 through 7.4.
7.2 Summary of Charges
7.2.1 Marketing/Advertising Charge. The CPUC shall pay to
Contractor a per-unit Marketing/Advertising Charge
for the number of units collected pursuant to this
Agreement at the price or prices set forth in Section
8.3 below and shown in EXHIBIT A.
7.2.2 Customer Incentive Charge. The CPUC shall pay to
Contractor a per-unit Customer Incentive Charge as
set forth in Section 4.7.1 and shown in EXHIBIT A.
7.2.3 Basic Recycling Charge. The CPUC shall pay to
Contractor a per-unit Basic Recycling Charge for the
number of Appliances collected pursuant to this
Agreement at the price or prices shown in EXHIBIT A.
The Basic Recycling Charge covers the scope of work
described in Section 4, excluding
marketing/advertising, incentive purchasing, CFC-11
recovery, and financing services.
7.2.4 CFC-11 Recovery Charge. The CPUC shall pay to
Contractor a per-unit CFC-11 Recovery Charge for the
number of refrigerators and freezers collected
pursuant to this Agreement at the price or prices
shown in EXHIBIT A.
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7.2.5 Other Charges. All other costs for services shall be
negotiated between the parties and implemented by an
amendment to the Agreement.
7.2.5 Transportation Fuel Adjustment. The parties agree
that Contractor shall be entitled to a per-unit
price adjustment, as set forth in the following
table, should diesel fuel costs, as measured by the
U.S. Department of Energy, Energy Information
Agency's PADDS index for California, exceed certain
benchmark prices during the term of this Agreement.
ADDITIONAL PRICE PER UNIT, IF THE PRICE PER GALLON EXCEEDS
$1.00 per unit $2.00 per gallon
1.50 per unit 2.50 per gallon
2.00 per unit 3.00 per gallon
The per-unit price adjustment shall be reflected on all succeeding
invoices until said prices for diesel fuel in California, as reported
by the DOE PADD5 Index, drop below the established per-gallon
benchmarks shown in the table in this Section.
7.2.6 Incentive Cost. The CPUC shall pay to Contractor
Incentive costs as specified in Section 7.4 below.
7.3 Pricing Charges
7.3.1 The per-unit Charges to be paid by the CPUC for the
Contract Period shall be as set forth in EXHIBIT A.
7.4 Pricing Incentive Costs
7.4.1 The CPUC shall reimburse Contractor for the cost of
each Incentive payment distributed to Program
Participants.
7.5 Miscellaneous
Contractor agrees that any agreement it has, or in which it
may enter with other entities for similar services, shall not
detrimentally affect Contractor's services under this
Agreement.
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8. BILLING
8.1 Contractor shall submit a weekly invoice, in arrears,
reflecting the per-unit charge for the Eligible Appliances
collected, processed, and recycled, per-unit
marketing/advertising costs, CFC-11 recovery services, and for
the purchase of Incentives. Contractor shall apply a per-unit
charge on units that have been disabled and only for the
following transactions:
8.1.1 Collection of an Eligible Appliance.
8.1.2 Collection contact made for Eligible Appliance that
cannot be removed due to obstruction because of size
or structural barrier provided that Contractor
obtains written permission from Customer to
permanently disable said unit, and Contractor then
permanently disables the unit.
8.1.3 Collection of an Eligible Appliance that could not be
inspected for eligibility confirmation only with
prior approval in accordance with subsection 5.3.
8.2 Contractor shall submit a final invoice for the Contract
Period in hard copy and in electronic format acceptable to the
CPUC.
8.3 Contractor shall apply a 25% per unit discount to the Basic
Recycling Charge to any additional units when two or more
Eligible Appliances are removed during a single collection
appointment from Customer's residence. In the event that the
Customer turns in a refrigerator/freezer and a room air
conditioner, the discount shall be applied to the Basic
Recycling Charge for the room air conditioner. Said discount
shall be clearly documented and identified in Contractor's
invoice.
8.4 Contractor shall submit a weekly invoice for the purchase
price of the incentive payments.
8.5 The CPUC shall make payment (less any unsubstantiated or
incorrect charge):
8.5.1 For Customer Incentives, within thirty days of
receipt of an Invoice by the CPUC's Fiscal Office
(NOTE: if checks are issued by the Controller,
issuance will be within 45 days)
8.5.2 For Marketing/Advertising, Basic Recycling, and
CFC-11 Recovery Charges, within thirty days (see note
above) of receipt of an Invoice from Contractor
approved by the CPUC Program Administrator.
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8.5.3 For Incentive Financing Fees within thirty days (see
note above) of receipt of an Invoice from Contractor
approved by the CPUC Program Administrator.
9. RIGHT TO AUDIT
For a period of three years after final payment of the Agreement,
unless a longer records retention period is stipulated, the CPUC,
Department of General Services or Bureau of State Audits, or Authorized
Representatives, shall have the right and free access, at any
reasonable time during normal business hours, to examine, audit, and
copy all Contractor's records and books as related to Contractor's
obligations under this Agreement, including, but not limited to,
verification of charges to the CPUC, as claimed by Contractor.
10. CHANGES
Changes to this Agreement shall be made by mutual agreement of the
Parties through a written amendment to the Agreement and approved by
the Executive Director or designee. The amendment shall hereby be
incorporated into the original Agreement.
11. PERMITS, CODES, AND STATUTES
11.1 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, regulation, and
ordinance, or any of them, to engage in the activities
required in connection with this transaction. Contractor also
represents and warrants that, to the best of its knowledge,
based upon reasonable and prudent inquiry, any storage site
and any disposal facility to which the Hazardous Materials may
be moved are in compliance with any and all federal, state and
local laws and regulations pertaining thereto and that such
storage sites and disposal facilities are suitable and may
lawfully receive and/or dispose of the Hazardous materials.
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11.2 Contractor shall comply with all applicable local, state, and
federal safety and health laws in effect an 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 CPUC shall, in good faith, negotiate an amendment to this
Agreement reasonably compensating Contractor for its
additional costs.
12. WARRANTY
12.1 Contractor warrants to the CPUC that the Work shall be
performed in a competent manner, in accordance with this
Agreement, and that the acceptance, handling, storage,
recycling, and disposal of the Appliances and the Hazardous
Materials shall be in accordance with (i) the requirements of
this Agreement and (ii) the applicable local, state, and
federal laws and regulations in effect at the time of the work
performed.
13. TITLE
13.1 Title to the Hazardous Materials shall pass to Contractor when
Contractor collects Eligible Appliances from customers.
13.2 Title of collected Appliances shall pass to Contractor.
14. INSURANCE
14.1 Without limiting Contractor's liability to the CPUC, including
the requirements of Section 15, Indemnity, Contractor shall
maintain for the work, and shall require that each
Subcontractor of the first tier maintain, at all times during
the work and at its own expense, valid and collectible
insurance as described below. This insurance shall not be
terminated, expire, not be materially altered, except on
thirty days prior written notice to the CPUC. Contractor shall
furnish the CPUC with certificates of insurance and forms
acceptable to the CPUC and shall require each Subcontractor of
the first tier to furnish Contractor with certificates of
insurance, as evidence that policies do provide the required
coverage and limits of insurance listed below. Such
certificates shall be furnished to the CPUC's Project Manager
by Contractor upon receipt of the Purchase Order, and by
Subcontractor for the first tier upon receipt of its
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subcontract, but in any event prior to start of its portion of
the Work. Any other insurance carried by the CPUC, its
officers, agents, and employees, which may be applicable,
shall be deemed to be excess insurance, and Contractor's
insurance shall be deemed primary for all purposes
notwithstanding any conflicting provision in Contractor's
policies to the contrary.
(i) Workers' Compensation Insurance with statutory
limits, as required by the state in which the Work is
performed, and Employer's Liability Insurance with
limits of not less than $5,000,000. Carriers
furnishing such insurance shall be required to waive
all rights of subrogation against the CPUC, its
officers, agents, employees, and other contractors
and subcontractors.
(ii) Comprehensive Bodily Injury and Property Damage
Liability Insurance, including owners, and
contractors' protective liability, product/completed
operations liability, contractual liability, and
coverage for liability incurred as a result of sudden
and accidental discharge, dispersal, release or
escape of polluting materials, (excluding automobile)
with a combined single limit of not less than
$3,000,000 for each occurrence. Such insurance shall:
(a) acknowledge the CPUC, its officers, agents, and
employees, and additional insureds; (b) be primary
for all purposes; and (c) contain standard
cross-liability provisions.
(iii) Automobile Bodily Injury and Property Damage
Liability Insurance with a combined single limit of
not less than $3,000,000 for each occurrence. Such
insurance shall cover liability arising out of the
use by Contractor and Subcontractors of owned, non
owned and hired automobiles in the performance of the
Work. As used herein, the term "automobile" means
vehicles licensed or required to be licensed under
the Vehicle Code of the state in which the Work is
performed. Such insurance shall acknowledge the CPUC
as an additional insured and be primary for all
purposes.
(iv) Environmental Impairment Expense Insurance with a
combined single limit of not less than $5,000,000 for
each occurrence and overall limits of $10,000,000.
Such insurance shall provide coverage for necessary
costs or expense of removing, cleaning-up,
transporting, nullifying, and rendering ineffective,
or any of them, any substance which has caused
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environmental impairment and such insurance shall
contain no exclusions for non-sudden and/or
non-accidental discharge, release or escape of
polluting materials. Such insurance shall acknowledge
the CPUC as an additional insured and be primary for
all purposes.
Contractor shall report immediately to the CPUC and
confirm in writing any injury, loss, or damage
incurred by Contractor or Subcontractors in excess of
$500.00, or its receipt of notice of any claim by a
third party in excess of $500.00, or any occurrence
that might give rise to such claim.
If Contractor fails to comply with any of the
provisions of this Section 14, Contractor shall, at
its own cost, defend, indemnify, and hold harmless
the CPUC, its officers, agents, employees, assigns,
and successors in interest, from and against any and
all liability, damages, losses, claims, demands,
actions, causes of action, costs, including
attorney's fees and expenses, or any of them,
resulting from the death or injury to any person or
damage to any property to the extent that the CPUC
would have been protected had Contractor complied
with all of the provisions of this Section.
15. INDEMNITY
15.1 Contractor shall, at its own cost, indemnify, defend,
reimburse, and hold harmless the CPUC, its officers,
directors, employees, agents, assigns, and successors in
interest, from and against any and all liability, damages,
losses, claims, suits, demands, actions, causes of action,
costs, expenses, including attorney's fees and expenses, or
any of them resulting from the death or injury to any person
or damage to or destruction of any property caused by
Contractor, Subcontractors, and employees, officers and agents
of either Contractor or Subcontractors, or any of them, and
arising out of or attributable to the performance or
nonperformance of Contractor's obligations under this
Agreement and including, without limitation, failure to comply
fully with every federal, state, or local law, statute,
regulation, rule, ordinance, or government directive which
directly or indirectly regulates or affects the handling,
storage, recycling, or disposal of the Hazardous Materials to
be managed by Contractor hereunder. In all cases of death or
injury to employees, officers or agents of either Contractor
or Subcontractors, whether or not caused by Contractor, the
CPUC shall be indemnified by Contractor for any and all
liability except to the extent such death or injury results
from the negligence of the CPUC.
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15.2 Contractor shall, at its own cost, indemnify, defend,
reimburse, and hold harmless the CPUC, its officers,
directors, employees, and agents, assigns, and successors in
interest, from and against any and all liability imposed upon,
or to he imposed upon the CPUC, under any law imposing
liability for the environmental clean-up of the Hazardous
Materials at any location (other than the CPUC's property)
where the Hazardous Materials have been placed, stored or
disposed of in the performance or nonperformance of
Contractor's obligations under this Agreement, or any other
site to which the Hazardous Materials have migrated.
15.3 The indemnities set forth in this Section 15 shall not be
limited by the insurance requirements set forth in Section 14.
16. TERM AND TERMINATION
16.1 This Agreement shall commence on June 1, 2001 and shall
continue in effect until May 31, 2002, or until Contractor has
picked up all units scheduled prior to May 31, 2002, whichever
is later. This Agreement may be extended, by an Amendment to
this Agreement signed by the Parties and approved by the
Executive Director or designee.
16.2 Contractor shall notify the CPUC Project Manager in writing
when a total of 80% of the funds budgeted for the Contractor's
Program services have been invoiced to the CPUC for payment.
16.3 In the event of termination pursuant to this Section 16 or
Section 19, Contractor and the CPUC shall work cooperatively
to facilitate the termination of the Program.
16.4 Each Party shall immediately provide at no cost to the other
any testimony, or any communications with the CPUC, or any
board, division, committee or member thereof, which could
reasonably be anticipated to affect the Program or which
addresses it in any manner.
17. WRITTEN NOTICES
Any written notice, demand or request required or authorized in
connection with this Agreement, shall be deemed properly given if
delivered in person or sent by facsimile, nationally recognized
overnight courier, or first class mail, postage prepaid, to the address
specified below, or to another address specified in writing by the CPUC
as follows:
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CPUC: The California Public Utilities Commission
Attention: Xxxxxxx Xxxx, Project Manager
Energy Division, Appliance Retirement Program
000 Xxx Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000 telephone
(000) 000-0000 facsimile
CONTRACTOR: Appliance Recycling Centers of America, Inc.
Attention: Xxxx Xxxxxxx, President
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
(000) 000-0000 telephone
(000) 000-0000 facsimile
17.1 Notices shall be deemed received (a) if personally or
hand-delivered, upon the date of delivery to the address of
the person to receive such notice if delivered before 5:00
p.m., or otherwise on the Business Day following personal
delivery; (b) if mailed, three Business Days after the date
the notice is postmarked; (c) if by facsimile, upon electronic
confirmation of transmission, followed by telephone
notification of transmission by the noticing Party; or (d) if
by overnight courier: on the Business Day following delivery
to the overnight courier within the time limits set by that
courier for next-day delivery.
18. SUBCONTRACTS
18.1 Contractor shall contractually require each Subcontractor of
the first tier providing service in connection with the Work
to be bound by general terms and conditions protecting the
CPUC that are equivalent to the terms and conditions of this
Agreement.
18.2 Contractor shall, at all times, be responsible for the work,
and acts and omissions, of Subcontractors and persons directly
or indirectly employed by them for services in connection with
the Work. The Purchase Order and this Agreement shall not
constitute a contractual relationship between any
Subcontractor and the CPUC nor any obligation for payment to
any Subcontractor.
19. NON-WAIVER
None of the provisions of the Agreement shall be considered waived by
either Party unless such waiver is specifically stated in writing.
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20. ASSIGNMENT
The CPUC may be required to assign its rights, duties and obligations
under this Agreement. Contractor hereby consents to such assignment.
Other than the CPUC's assignment to another administrator, neither
Party shall delegate or assign this Agreement or any part or interest
thereof, without the prior written consent of the other Party, and any
assignment without such consent shall be void and of no effect.
21. FORCE MAJEURE
Failure of Contractor to perform any of the provisions of this
Agreement by reason of any of the following shall not constitute an
event of default or breach of this Agreement: strikes, picket lines,
boycott efforts, earthquakes, fires, floods, war (whether or not
declared), revolution, riots, insurrections, acts of God, acts of
government (including, without limitation, any agency or department of
the United States of America), acts of the public enemy, scarcity or
rationing of gasoline or other fuel or vital products, inability to
obtain materials or labor, or other causes which are reasonably beyond
the control of the Contractor.
22. GOVERNING LAW
The contract shall be interpreted, governed, and construed under the
laws of the State of California as if executed and to be performed
wholly within the State of California. Any action brought to enforce or
interpret this Agreement shall be filed in San Francisco County,
California.
23. SECTION HEADINGS
Section headings appearing in this Agreement are for convenience only
and shall not be construed as interpretations of text.
24. SURVIVAL
Notwithstanding completion or termination of the Work, of this
Agreement or any amendment to the Agreement, the Parties shall continue
to be bound by the provisions of this Agreement and any Amendment to
this Agreement which by their nature shall survive such completion or
termination. Such provisions shall include, but not be limited to,
Contractor's indemnity protecting the CPUC from any liability for
environmental clean up as provided in Section 16 of this Agreement.
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25. NONRELIANCE
Neither Party has relied upon any representation, warranty, projection,
estimate or other communication from the other not specifically so
identified in this Agreement.
26. COOPERATION
Each Party agrees to cooperate with the other Party in whatever manner
reasonably required to facilitate the successful completion of the
Agreement.
27. ENTIRE AGREEMENT
This Agreement contains the entire agreement and understanding between
the Parties and merges and supersedes all prior representations and
discussions pertaining to the Agreement, including Contractor's
proposal. Any changes, exceptions, or different terms and conditions
proposed by Contractor are hereby rejected unless express y stated in
this Agreement.
28. NON DISCRIMINATION CLAUSE
During the performance of this Agreement, contractor and its
subcontractors shall not unlawfully discriminate, harass, or allow
harassment against any employee or applicant for employment because of
sex, race, color ancestry, religious creed, national origin, physical
disability (including HIV and AIDS), mental disability, medical
condition (cancer). Age (over age 40), martial status, and denial of
family care leave. Contractor and subcontractors shall comply with
provisions of the Fair Employment and Housing Act (GC Section 12990,
a-D and the applicable regulations promulgated under CA Code of
Regulations, Title 2 Section 7285 et seq hereby incorporated by
reference in this Agreement.
29. CERTIFICATION CLAUSE
The Contractor Certification Clauses contained in document CCC201 are
hereby incorporated by reference and made part of this Agreement by
this reference.
30. CHILD SUPPORT COMPLIANCE ACT
For any Agreement in excess of $100,000, the Contractor acknowledges in
accordance with, that:
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a. The contractor recognizes the importance of child and family
support obligation and shall fully comply with all applicable
state and federal laws relating to child and family support
enforcement, including but not limited to, disclosure of
information and compliance earning assignment orders as
provided in Chapter 8 (commencing with Section 5200) of Part 5
of division 9 of the Family Code and
b. The contractor, to the best of its knowledge is fully
complying with earnings assignment orders of all employees and
is providing the names of all new employees to the New hire
Registry maintained by the CA Employment Development
Department.
31. UNION ORGANIZING
For all contracts, except fixed price contracts of $50,000 or less, the
Contractor acknowledges that by signing this Agreement the
applicability of Government Code Section 16645 through Section 16649 to
this Agreement and agrees to abide by the sections.
32. SETTLEMENT OF DISPUTES
In the event of a dispute, the contractor shall file a "Notice of
Dispute" with the CPUC's Executive director or designee within 10 days
of discovery of the problem. Within 10 days, the Executive Director or
designee shall meet with the Contractor and Project Manager for
purposes of resolving the dispute. The decision of the Executive
Director or designee shall be final.
33. MEDIA RELATIONS
The Contractor and the Commission recognize that the programs funded by
this Agreement benefit from advertisements, press coverage and other
publicity designed to increase public awareness of energy efficiency
programs, and in particular, the ones funded by this Agreement. The
Contractor may publicize the programs funded by this Agreement through
advertisements and other means of promoting public awareness, and may
publicly discuss the programs that are funded by this Agreement,
including with the press and/or other media, but shall not comment
publicly on the Commission's policy regarding the terms of this
Agreement or the administration of this Agreement, unless such comments
are at a legislative hearing or in response to questions from the
Commission.
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34. TERMINATION-BANKRUPTCY
In the event (i) a bankruptcy case is or a liquidation or insolvency
proceeding is commenced by or against the Contractor, (ii) a custodian,
receiver, trustee or other officer with similar powers is appointed
with respect to the Contractor or a substantial part of its property,
(iii) the Contractor makes an assignment for the benefit of its
creditors or (iv) the Contractor is finally adjudicated insolvent or to
be liquidated, the State may terminate this Contract by giving ten
days' notice in writing to the Contractor
35. TERMINATION
This project may be terminated for any reason set forth below.
A. With Cause
In the event of any breach by the Contractor of the
conditions set forth in this Agreement, the
Commission may, without prejudice to any of its legal
remedies, terminate this Agreement for cause upon ten
(10) days written notice to Contractor. The
Commission agrees that prior to giving notice of its
intent to terminate the contract for cause, it will
notify the contractor of the problem and attempt to
resolve the problem informally. In the event of such
termination the State may proceed with the work in
any reasonable manner deemed proper by the State. All
appropriate and reasonable costs to the State shall
be deducted from any sum due the Contractor under
this Agreement and the balance, if any, shall be paid
to the Contractor upon demand.
B. Without Cause
The Commission or the Contractor may, at its option,
terminate this Agreement without cause in whole or in
part, upon giving thirty (30) days advance notice in
writing to the non-terminating party. If the
Commission terminates this Agreement, the Contractor
agrees to use all reasonable efforts to mitigate the
Contractor's expenses and obligations hereunder after
receipt of a valid notice of termination. Also in
such event, the Commission shall pay the Contractor
for all satisfactory services rendered and expenses
incurred prior to such notice of termination which
could not by reasonable efforts of the Contractor
have been avoided, but not in excess of the maximum
payable under this Agreement.
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36. CONFLICT OF INTEREST
Contractor agrees to refrain from entering into any relationship that
could result in a conflict of interest in the performance of this
Agreement; and to notify the CPUC's Project Manager promptly of any
potential conflict of interest, including subcontractors. The CPUC may
exercise its option to terminate this Agreement if a conflict is found.
37. COUNTERPARTS
For the convenience of the parties, any number of counterparts of this
Agreement may be executed by the parties hereto. Each such counterpart
shall, and shall be deemed to be, an original instrument, but all such
counterparts taken together shall constitute one and the same
Agreement.
APPLIANCE RECYCLING CALIFORNIA PUBIC UTILITIES
CENTERS OF AMERICA, INC. COMMISSION
By: By:
Its: Its:
Date: Date:
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