Exhibit 10.1


 


2003 STATEWIDE RESIDENTIAL APPLIANCE RECYCLING

PROGRAM AGREEMENT


 


BETWEEN


 


ARCA CALIFORNIA, INC.


 


AND


 


SOUTHERN CALIFORNIA EDISON COMPANY


 


 


This program is funded
by California utility customers and administered by Southern California Edison Company
under the auspices of the California Public Utilities Commission.


 

















 


2003
STATEWIDE RESIDENTIAL APPLIANCE RECYCLING PROGRAM AGREEMENT


 


TABLE OF CONTENTS


 


	
  1

  	
  DEFINITIONS

  
	
   

  	
   

  
	
  2

  	
  GENERAL TERMS

  
	
   

  	
   

  
	
  3

  	
  CONTRACT
  DOCUMENTS

  
	
   

  	
   

  
	
  4

  	
  CONTRACTOR RECYCLING
  SERVICES

  
	
   

  	
   

  
	
  5

  	
  CONTRACTOR
  REPORTS

  
	
   

  	
   

  
	
  6

  	
  CONTRACTOR
  CUSTOMER COMPLAINT AND DISPUTE RESOLUTION PROCESS

  
	
   

  	
   

  
	
  7

  	
  ELIGIBLE
  CUSTOMERS AND REFRIGERATORS AND FREEZERS

  
	
   

  	
   

  
	
  8

  	
  INELIGIBLE
  CUSTOMERS AND REFRIGERATORS AND FREEZERS

  
	
   

  	
   

  
	
  9

  	
  CONTRACTOR’S COMPENSATION

  
	
   

  	
   

  
	
  10

  	
  CONTRACTOR
  BILLING

  
	
   

  	
   

  
	
  11

  	
  SCE
  RESPONSIBILITIES

  
	
   

  	
   

  
	
  12

  	
  OWNERSHIP AND CUSTOMER CONFIDENTIALITY
  REQUIREMENTS

  
	
   

  	
   

  
	
  13

  	
  CONFLICT
  OF INTEREST

  
	
   

  	
   

  
	
  14

  	
  RIGHT TO AUDIT AND INSPECT; RECORDKEEPING

  
	
   

  	
   

  
	
  15

  	
  CHANGES

  
	
   

  	
   

  
	
  16

  	
  PERMITS, CODES AND STATUTES

  
	
   

  	
   

  
	
  17

  	
  REPRESENTATIONS AND
  WARRANTIES

  
	
   

  	
   

  
	
  18

  	
  TITLE

  
	
   

  	
   

  
	
  19

  	
  INSURANCE

  
	
   

  	
   

  
	
  20

  	
  INDEMNITY

  
	
   

  	
   

  
	
  21

  	
  TERM
  AND TERMINATION

  
	
   

  	
   

  
	
  22

  	
  STOP WORK

  



 


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  23

  	
  WRITTEN NOTICES

  
	
   

  	
   

  
	
  24

  	
  SUBCONTRACTS

  
	
   

  	
   

  
	
  25

  	
  INDEPENDENT
  CONTRACTOR

  
	
   

  	
   

  
	
  26

  	
  NON-DISCRIMINATION CLAUSE

  
	
   

  	
   

  
	
  27

  	
  CPUC
  AUTHORITY TO MODIFY

  
	
   

  	
   

  
	
  28

  	
  NON-WAIVER

  
	
   

  	
   

  
	
  29

  	
  ASSIGNMENT

  
	
   

  	
   

  
	
  30

  	
  FORCE MAJEURE

  
	
   

  	
   

  
	
  31

  	
  DISPUTE RESOLUTION

  
	
   

  	
   

  
	
  32

  	
  SEVERABILITY

  
	
   

  	
   

  
	
  33

  	
  GOVERNING LAW

  
	
   

  	
   

  
	
  34

  	
  SECTION HEADINGS

  
	
   

  	
   

  
	
  35

  	
  SURVIVAL

  
	
   

  	
   

  
	
  36

  	
  NONRELIANCE

  
	
   

  	
   

  
	
  37

  	
  ATTORNEYS’ FEES

  
	
   

  	
   

  
	
  38

  	
  COOPERATION

  
	
   

  	
   

  
	
  39

  	
  ENTIRE AGREEMENT

  
	
   

  	
   

  
	
  40

  	
  COUNTERPARTS

  



 


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THIS  AGREEMENT
(“Agreement”) is effective as of the 2nd day of September, 2003 (“Effective
Date”) by and between SOUTHERN CALIFORNIA
EDISON COMPANY, a California corporation (“SCE”) and ARCA CALIFORNIA, INC., a California
corporation and wholly owned subsidiary of Appliance Recycling Centers of
America, Inc. (“Contractor”).  SCE and Contractor
are also each individually referred to herein as “Party” and collectively as
“Parties.”


 


RECITALS


 


WHEREAS the Parties desire to implement
an appliance recycling program 2003 under the terms and conditions required by
the California Public Utilities Commission and as set forth herein, for the
removal of older, working inefficient refrigerators and freezers (“Eligible
Refrigerators and Freezers”) (“the 2003 Statewide Residential Appliance
Recycling Program”) or “Program”) from customer residences in the separate
service territories of SCE, and San Diego Gas & Electric (“SDG&E”)
(collectively, the “Southern Territory.”)


 


WHEREAS, SCE desires to ensure the
safe, lawful recovery and recycling or lawful disposal, as necessary, of CFCs,
HCFCs, HFCs, PCBs, mercury, and used oil and Hazardous Materials.


 


WHEREAS, SCE desires to contract with
Contractor for the comprehensive management of the 2003 Statewide Residential
Appliance Recycling Program in the Southern Territory.


 


WHEREAS, Contractor desires to contract
with SCE for the comprehensive management of the 2003 Statewide Residential
Appliance Recycling Program in the Southern Territory, said management to
include, without limitation, the collection, disabling and proper disposal of
primary and secondary working Eligible Refrigerators and Freezers; removal of
CFCs, HCFCs, HFCs, PCBs and other Hazardous Materials from collected Eligible
Refrigerators and Freezers; handling storage and legal disposal of compressor
oil, PCBs and other Hazardous Materials; recycling of metal, sulfur dioxide,
CFCs, HCFCs, HFCs and oil; providing incentives to participating customers of
SCE and SDG&E who relinquish Eligible Refrigerators and Freezers,
performance of a Program Participant survey, and providing reports and data to
assist SCE in tracking program goals and expenditures and evaluating the
program.


 


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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 Division 30), and all other
applicable federal, state, and local regulations regarding the proper
processing and recycling of refrigerators and freezers and hazardous materials
contained within the refrigerators and freezers; (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 Compton or other areas acceptable
to Contractor and SCE.


 


WHEREAS, the Parties hereto desire to
set forth terms and conditions under which the aforesaid management services
shall be performed and which shall constitute the Parties’ agreement.


 


NOW THEREFORE, for valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, 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:  Future document signed by the authorized
representatives of both Parties which changes or modifies the terms of this
Agreement.


 


1.3           Business Day:  The period from one midnight to the
following midnight, excluding Saturdays, Sundays, and holidays.


 


1.4           Calendar Day:  The period from one midnight to the
following midnight, including Saturdays, Sundays, and holidays.


 


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1.5           CFCs:  Chlorofluorocarbons. (See also HCFCs and
HFCs.)


 


1.6           CFC-11:  Chlorofluorocarbons used as the blowing
agent in the refrigerator and freezer polyurethane foam insulation.


 


1.7           Change Order:  Document issued by SCE to Contractor and
accepted by Contractor that changes or modifies the terms of this Agreement.


 


1.8           Contract Period:  September 2,
2003 to December 31, 2003 for  completion of the
Work.  Contractor’s final report shall
be submitted to SCE on or before January 31, 2004, or as extended by order
of the CPUC.  (See also Section 21
– “Term and Termination.”)


 


1.9           CPUC:  the California Public Utilities Commission.


 


1.10         Disposition Code:  Code assigned to each customer appliance
turn-in order form (ATO) that identifies whether a working or non-working
Refrigerator or Freezer was collected, or disabled with the customer’s
permission, if the order was cancelled by the customer, which incentive was
selected, and other similar details regarding each order.


 


1.11         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.


 


1.12         Eligible Customer:  For purposes of this Agreement, an Eligible
Customer is a resident of the Southern Territory who occupies an existing
single-family residential (Domestic Rate) or multi-unit dwelling or mobile home,
or is the owner or authorized representative of existing multifamily housing
and who may qualify for the 2003 Statewide Residential Appliance Recycling
Program.  Eligible Customers include
customers who reside in the Southern Territory but who take distribution
services from an entity other than SCE or SDG&E.  (See Section 7 of this Agreement.)


 


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1.13         Eligible Refrigerators and
Freezers:  Refrigerators and freezers
that meet the 2003 Statewide Residential Appliance Recycling Program refrigerator
and freezer eligibility criteria as set forth in Section 7 of this
Agreement.


 


1.14         Hard-to-Reach:  Eligible Customers who are residents of
areas other than the Los Angeles basin or San Diego Area and/or are moderate
income and/or multifamily or mobile home tenants and are within the zip codes
listed.  See remote area definition
also.


 


1.15         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 or
other applicable code, rule or regulation, which is contained in or is derived
from the Eligible Refrigerators or Freezers.


 


1.16         HCFCs and HFCs:  hydrochlorofluorocarbons, and
hydrofluorocarbons.  (See also CFCs.)


 


1.17         PCB:  Polychlorinated Biphenyl.


 


1.18         PGC funds:  Public Goods Charge Funds.  The source of the funds used to pay
Contractor for work performed pursuant to this Agreement.


 


1.19         Primary Refrigerator or
Freezer:  Refrigerator or freezer
currently in use by customer as the main refrigerator or freezer.


 


1.20         Program Participants:  Eligible Customers who turn in Eligible
Refrigerators or Freezers during the Contract Period.


 


1.21         Purchase Order:  Document issued by SCE to facilitate payment
to Contractor for the Work described herein.


 


1.22         Recycling Center:  The site at which Contractor will process
Eligible Refrigerators and Freezers, remove CFCs, HCFCs, HFCs, PCBs and other
Hazardous Materials, and recycle or legally dispose of Hazardous materials.


 


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1.23         Recycling Charge:  Per-unit price paid by SCE for services
performed by Contractor for the Work. 
The Recycling Charge does not include marketing or incentive charges.


 


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.


 


1.25         Secondary Refrigerator or
Freezer:  Surplus refrigerator or
freezer currently in use and utilized by customer concurrently with primary
refrigerator or freezer.


 


1.26         Southern
Territory:  The collective service
territories of SCE and SDG&E.


 


1.27         2003 Statewide Residential
Appliance Recycling Program:  2003
statewide appliance recycling program approved by the CPUC to be implemented in
the respective service territories of SCE, SDG&E and Pacific Gas &
Electric Company.


 


1.28         Subcontractor:  An entity contracting directly or indirectly
with Contractor to furnish services or materials as part of or directly related
to Contractor’s Work.


 


1.29         Utility
or Utilities:  SCE and/or SDG&E.


 


1.30         Work:  Any and all obligations of Contractor to be performed for SCE and
SDG&E and Eligible Customers of SCE and SDG&E pursuant to this
Agreement, any Amendment to this Agreement, or a subsequent Purchase Order or
Change Order incorporating this Agreement. 
The Work shall include the services described in Sections 4, 5, 6, and
10 of this Agreement, but is not limited to, Eligible Refrigerator and Freezer
collection, Eligible Refrigerator and Freezer processing, handling, storing,
recycling, and legal disposal of Hazardous Materials and Documentation
preparation, customer complaint resolution and other related activities.


 


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2.             GENERAL
TERMS 


 


Contractor
shall perform the Work and its associated obligations described below as an
independent contractor.


 


3.             CONTRACT
DOCUMENTS 


 


This
Agreement shall consist of the following documents:  this Agreement, any amendments to this Agreement, Purchase
Orders, 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:


 


(i)            Amendments
to the Agreement in chronological order from the most recent to the earliest;


 


(ii)           Change Orders incorporating and
reflecting any Amendments to the Agreement in chronological order from the most
recent to the earliest;


 


(iii)          This Agreement including all
attachments; and (iv) Purchase Order incorporating this Agreement.


 


Each
Party shall notify the other immediately upon the identification of any such
conflict or inconsistency.


 


4.             CONTRACTOR
RECYCLING SERVICES 


 


4.1           Contractor shall be responsible
for Program Participant service activities in the service territory of each
Utility, including providing an inbound 800 telephone number for customers to
access in English or Spanish, a web page which allows statewide customer access
for inquiries and/or qualification and to signup for appointments 24 hours a
day, seven days a week, all communication services, verification of customer
and refrigerator or freezer eligibility, scheduling Eligible Refrigerator and
Freezer collection appointments, documentation of Program Participant data, and
other activities.  The web site content
shall be approved by SCE.  Any changes
to the content must be reviewed and approved by SCE prior to implementation.


 


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Contractor
is not performing any Work in the service territory of Pacific Gas &
Electric Company (“PG&E”) under this Agreement.  Nonetheless, Contractor agrees to maintain its inbound 800
telephone number dedicated to customers in PG&E’s service territory to
access in English or Spanish, and forward any calls received from PG&E
customers during the Term of this Agreement to the inbound 800 telephone number
of SCE’s contractor delivering Program services in PG&E’s service
territory.  SCE shall reimburse
Contractor for any costs associated with maintaining the inbound 800 telephone
number for PG&E’s customers, and forwarding calls from PG&E’s customers
to SCE’s contractor delivering Program services in PG&E’s service territory
during the Term of this Agreement.


 


4.2           Contractor shall be responsible
for the following collection services in the service territory of each Utility:


 


(i)            Collect
all Eligible Refrigerators and Freezers from Eligible Customers’ residences
within 20 Business Days from the date the Refrigerator or Freezer was scheduled
for pickup (unless otherwise requested by the Eligible Customer).  In  Remote Areas of the service
territory, or as approved by SCE’s Program Manager, collection shall be no
later than 25 Business Days from the date the Eligible Refrigerator or Freezer
was scheduled for pickup, unless otherwise requested by the Eligible
Customer.  In  the event of
unanticipated high demand (beyond the projected monthly participation estimates)
for Program services, Contractor and the SCE Program Manager shall, by mutual
agreement, establish other appropriate time limitations as necessary.


 


Contractor
shall dedicate 14  international straight trucks with
24’ cargo boxes and hydraulic lift gates solely to performing the Work.


 


A
twenty-five percent (25%) reduction in the Recycling Charge shall be made by
SCE if Eligible Refrigerators and Freezers are collected later than 20 Business
Days after the Eligible Refrigerator or Freezer was scheduled for pickup and 25
Business Days in Remote Areas of each Utility’s service territory after the
Eligible Refrigerator or Freezer was scheduled for pickup or unless the
Eligible Customer requested the later collection date or unless the Contractor
and the SCE Program Manager shall, by mutual agreement establish other
appropriate time limitations as necessary.


 


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(ii)           Ensure that the Eligible
Refrigerator or Freezer is a working unit before removing it from a residence;


 


(iii)          Disable the Eligible
Refrigerator or Freezer prior to leaving pick-up location; and


 


(iv)          Transport and Process the
Eligible Refrigerator or Freezer at its Recycling Center.  Contractor represents and warrants that no
refrigerator or freezer, nor any component thereof, picked up by Contractor or
a Subcontractor in the performance of the Work, shall be resold or reused.


 


4.3           Contractor shall be solely
responsible for all methods, techniques, sequences, and procedures for the
dismantling of Eligible Refrigerators and Freezers, processing of metal panels
and components, recycling of recovered scrap metal, removal and management
including, but not limited to, 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 capacitors found in Eligible Refrigerators and
Freezers, and the removal and disposal of compressor oil, CFCs, HCFCs, HFCs,
PCBs, and other Hazardous Materials from the time Contractor collects Eligible
Refrigerators and Freezers pursuant to this Agreement.


 


4.5           For each Utility, Contractor and
SCE shall establish and implement a financial incentive service as follows:


 


4.5.1        Each Program Participant will be
entitled to receive a check in the amount of Thirty-five Dollars ($35.00) or a
5-pack set of compact fluorescent lamps (CFL Pack).  The check and the CFL Pack are each referred to individually as
the “Incentive”.


 


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4.5.2        Contractor shall process and
mail an Incentive check to each Program Participant who selects the $35.00
Incentive via the U.S. Postal System within 15 Business Days of the date such
Program Participant’s Eligible Refrigerator or Freezer was picked up.


 


4.5.3        The CFL Pack shall be delivered
to the Program Participants who select such Incentive by SCE’s contractor,
Sunpark Electronics Company (“Sunpark”), provided
that Contractor emails Sunpark (c/o Meynardo Velasco at
mjvelasco@sunpkco.com) on a weekly basis a list of Program Participants who
select the CFL Pack, including each Program Participant’s full name and
address, ATO and phone number.


 


4.5.4        As required under
Section 10, Contractor shall provide SCE with a weekly listing of Program
Participants qualifying for an Incentive check or CFL Pack for SCE’s
approval.  The weekly listing shall
include the Program Participants’ names and addresses, dates of pickup, dates
the Incentive checks were mailed, and the date the list regarding the CFL Pack
Incentive was emailed to Sunpark.


 


4.5.8        Upon SCE’s reimbursement of
Contractor for the Incentives described in Section 4 of this Agreement,
SCE 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 receive such Incentives.  Moreover, upon SCE’s payment to Contractor
of such reimbursement, Contractor shall be deemed the holder of such property
as far as the interests of the Program Participants 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.  SCE 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.


 


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4.5.5        As between the Parties, SCE
shall be responsible for the replacement of the damaged and/or defective CFL
Pack, including, but not limited to, the Program Participant’s receipt of a new
CFL Pack, unless damage to a CFL Pack was caused by Contractor, in which case
Contractor shall be responsible for the replacement of the damaged CFL Pack.


 


4.6           For any Work Contractor performs
in SDG&E’s service territory, Contractor shall take reasonable steps to
meet the Hard-to-Reach (“HTR”) goals for SDG&E’s service territory, set
forth in SDG&E’s Program Implementation Plan.  Contractor shall maintain adequate documentation of its efforts
to meet the HTR goals for SDG&E’s service territory, so that SCE can
demonstrate to the CPUC with particularity that reasonable steps were taken
with respect to the HTR goals for SDG&E’s service territory.


 


4.7           Contractor
Exceptions List.  Contractor shall
provide SCE with its Customer Exceptions list within five (5) Business Days of
receipt of the relevant customer records information from SCE.


 


4.8           Contractor
services documentation and record maintenance services.  Contractor shall document and maintain
records for services performed under this Agreement on a Utility-specific
basis, as follows:


 


4.8.1        Appliance Turn-in Order Form
(ATO) to collect data such as (a) customer name, address, home and work phone
numbers, (b) Utility account number, (c) Eligible Refrigerator or Freezer
manufacturer’s name model and style, (d) defrost type, color, size, amperage,
and estimated age of unit; (e) location of Eligible Refrigerator or Freezer
within the residence, (f) disposition code for each Program Participant
indicating which Incentive was selected, (g) disposition code which indicates
operating condition of Eligible Refrigerator or Freezer, (h) identification of
units containing CFC-11, HCFCs and HFCs, (i) special pick-up instructions (if
applicable), and (j) in all cases each participating Eligible Customer’s
signature, when Contractor picks up an Eligible Refrigerator or Freezer.  Contractor shall obtain the signature of
customer in the event refrigerator or freezer is discovered not to be an
Eligible Refrigerator or Freezer.


 


ATO
data shall be compiled in electronic mode, employing a software program
suitable for exchange of information with SCE, subject to the approval of SCE’s
Program Manager.


 


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Contractor
shall utilize a computer software program designed to assign a Disposition Code
to each ATO for each Program Participant.


 


ATO
originals shall be maintained at the Contractor’s Recycling Center and made
available to SCE in accordance with Section 14 of this Agreement.


 


4.9           Contractor Survey.  Contractor shall conduct a Program
Participant telephone survey throughout the year using a stratified purposeful
sample of 5% to 20% of the total number of Program Participants.  The stratification and frequency of the
survey may be modified periodically by SCE, 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 refrigerator or freezer use, customer demographics and
customer satisfaction.  Survey
questions, stratification and frequency of survey may be modified periodically
as determined by SCE provided modified survey is reasonably comparable.


 


5.             CONTRACTOR
REPORTS 


 


5.1           Contractor shall provide SCE
with separate reports for each participating Utility for the services performed
under this Agreement.  Required data
shall be compiled in electronic mode, employing software suitable to exchange
information with SCE, subject to approval of SCE’s Program Manager.  SCE may request that Contractor submit
program documentation, including invoices, electronically.


 


5.1.1        A weekly invoice report as
described below in Section 10;


 


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5.1.2        A monthly report, provided no
later than the 15th Calendar Day of the preceding month’s activity which shall
contain the following:


 


(i)            Number
of Eligible Refrigerators and Freezers processed through the Recycling Center
during the previous month and the size in cubic feet, year of manufacture,
style, and defrost type.


 


(ii)           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 recycled Eligible Refrigerators and Freezers containing CFC-11; amount
of compressor oil recycled; and weight of metals materials sold for recycling;
and the weight of non-recyclable materials disposed.


 


5.1.3        A final Program report
summarizing year-to-date Program information, if required, shall be submitted
to SCE no later than thirty (30) Calendar Days after the termination of this
Agreement.


 


5.1.4        Customer Comments and Complaints
Report.  Contractor shall
provide SCE with a monthly status report on customer comments and status of
customer complaints (on a cumulative basis) as described below in
Section 6.


 


5.1.5        Aging Reports.  A report indicating the number of Eligible
Refrigerators and Freezers that were collected during the preceding month and
that were scheduled for collection from Eligible Customers during that month,
the date of the initial contact with the Eligible Customer, any subsequent
rescheduled dates initiated by Eligible Customer, the date or dates the
Eligible Refrigerator or Freezer was scheduled for collection, and the actual
collection date.


 


5.1.6        Weekly List to Sunpark.  Contractor shall provide a weekly list to
Sunpark pursuant to and in accordance with Section 4.5.3 herein.


 


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5.1.6        Upon reasonable written request
from an authorized representative of SCE, special and nonrecurring reports
during the course of the 2003 Statewide Residential Appliance Recycling
Program.  Such report content will be
developed by the Parties in anticipation of or response to requests from the
CPUC, SCE internal audits, or compilation of data relevant to the 2003
Statewide Residential Appliance Recycling Program activities.  An amendment to this Agreement or a separate
agreement shall be entered into only if any such report necessitates a
substantial change in labor, as substantiated by Contractor, requiring the
negotiation of a charge separate from the Recycling Charge.


 


6.             CONTRACTOR
CUSTOMER COMPLAINT AND DISPUTE RESOLUTION PROCESS. 


 


6.1           Contractor shall be responsible,
to the complete satisfaction of SCE, for developing and implementing a process
for the management of customer complaints. 
Contractor shall undertake activities to resolve customer complaints in
an expedited manner including, but not limited to:  (a) ensuring adequate levels of professional customer service
staff, (b) direct access of customer complaints to supervisory and/or
management personnel, and (c) ensuring sufficient levels of delivery personnel
expected during times of high volume.


 


6.2           For each Utility, a Customer
Comment Tracking System for recording customer inquiries, complaints, and
positive feedback.  This Customer
Comment Tracking System is to include, but is not limited to, dates of customer
complaints, information on the number, characterization, resolution of customer
complaints, date of each complaint resolution, and tracking of the total number
of telephone calls, duration of calls, number of calls placed on hold, duration
of time calls are on hold, and number of cancelled calls (hang-ups).


 


7.             ELIGIBLE
CUSTOMERS AND REFRIGERATORS AND FREEZERS


 


7.1           Eligible
Customers  shall include the following:


 


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7.1.1        Customer is a resident in a
participating Utility service territory and occupies an existing single-family
residential (Domestic Rate) or multi-unit dwelling or mobile home, or is the
owner or authorized representative of existing multifamily housing and who may
qualify for the 2003 Statewide Residential Appliance Recycling Program.  Eligible customers include customers who
reside in a participating Utility service territory but who take distribution
services from an entity other than a participating Utility.


 


(i)            Contractor
shall determine a customer’s eligibility status before Contractor picks up a unit from a customer.


 


(ii)           Failure to verify customer
eligibility shall result in nonpayment of fees.  Contractor shall be obligated to reimburse SCE for any costs
associated with the delivery of any CFL Pack to an Ineligible Customer.


 


7.1.2        Customer is the owner of the
Eligible Refrigerator or Freezer or possesses written consent from the actual
owner to turn in the Eligible Refrigerator or Freezer.


 


7.1.3        Customer turns in no more than
two Eligible Refrigerators or Freezers or one each Eligible Refrigerator and
Freezer per year unless written SCE approval is obtained for any additional
Eligible Refrigerator or Freezer.  SCE
shall not be obligated to pay Contractor the Incentive check amount or
Recycling Charge for any Eligible Refrigerator or Freezer picked up from an
Eligible Customer that exceeds the limit of two Eligible Refrigerators or
Freezers.  Contractor shall be obligated
to reimburse SCE for any costs associated with the delivery of any CFL Pack to
a Program Participant pursuant to the pickup of any Eligible Refrigerator or
Freezer exceeding the limit of two Eligible Refrigerators or Freezers per
Eligible Customer.


 


14

















 


7.2           Eligible Refrigerators and Freezers  for the 2003 Statewide Residential
Appliance Recycling Program shall depend on the following:


 


7.2.1        Refrigerator or freezer must be
capable of cooling or freezing, or both, as applicable, at time of collection.


 


7.2.2        Refrigerator or freezer minimum
size is 14 cubic feet and maximum size is 27 cubic feet.


 


8.             INELIGIBLE
CUSTOMERS AND REFRIGERATORS AND FREEZERS 


 


8.1           Ineligible
Customers


 


8.1.2        Low income customers who
participate in a Utility’s refrigerator replacement program for low-income
customers in 2003.


 


8.1.3        Commercial customers who are on
commercial Utility rates


 


8.1.4        A resident in a
non-participating utility service territory.


 


8.2           Ineligible
Refrigerators and Freezers


 


8.2.1        Refrigerators or freezers sizes
less than 14 cubic feet or greater than 27 cubic feet.


 


8.2.2        Refrigerators or freezers
containing sulphur dioxide (S02) or ammonia.


 


8.2.3        Commercial refrigerators or
freezers, ammonia-containing gas refrigerators, commercial freezers, and room
air conditioners


 


8.2.4        Refrigerators or freezers not
capable of cooling or freezing or both, as applicable.


 


15

















 


9.             CONTRACTOR’S
COMPENSATION 


 


9.1           Summary
of Fees Payable to Contractor


 


SCE
shall pay to Contractor, as full compensation for completing the Work at the
prices set forth herein.  The total
amount to be paid to Contractor for work performed in each Utility’s service
territory shall not exceed the authorized amounts.


 


9.1.1        Recycling Charge (All
Utilities).  For the Contract
Period, SCE shall pay to Contractor a per-unit Recycling Charge for the number
of units collected pursuant to this Agreement at the price or prices set forth.


 


9.1.2        Incentive Cost (All Utilities).  For the Contract Period, SCE shall reimburse
Contractor for each Incentive check payment distributed to Program Participants
under the terms and conditions set forth in this Agreement.


 


9.1.4        Marketing and Advertising Costs
(SDG&E only).  During the Contract
period, SCE shall pay Contractor per unit recycled (pick-up and properly
disposed of) in the service territory of SDG&E, as full compensation for
approved marketing activities conducted by Contractor.  Contractor must submit all marketing
materials to the SCE Program Manager for review and approval before using the
materials.  SCE will be responsible for
obtaining the approval of SDG&E as needed.


 


9.2           Payment
schedule.


 


SCE
shall transmit payments to Contractor for the Work (subject to offset by SCE
for any amount that is unsubstantiated or found to be incorrect) as follows:


 


(i)            For
Incentive check reimbursement, within thirty (30) Calendar Days of receipt of
Contractor’s weekly invoice and approval by SCE;


 


(ii)           For Recycling Charges incurred,
within thirty (30) Calendar Days of receipt of Contractor’s weekly invoice and
approval by SCE;


 


16

















 


SCE
shall attempt to review and approve all weekly invoices within 5 Business Days
of receipt of a properly documented invoice.


 


10            CONTRACTOR
BILLING 


 


10.1         On a weekly basis, in arrears,
Contractor shall prepare and electronically submit a weekly invoice to SCE to
substantiate the Recycling Charges, Advertising Costs and Incentive check
amounts due for Contractor’s payments to Program Participants for the prior
week.  Contractor shall provide SCE with
a weekly listing of prospective Program Participants who have been qualified as
eligible for an Incentive check or CFL Pack for SCE’ approval.  The weekly listing shall include the Program
Participants’ names and addresses, dates of unit pickups, the dates the Incentive
checks were mailed, and the date the CFL Pack list was emailed to Sunpark.


 


The
weekly invoice shall also include the applicable ATO number and the per-unit
Recycling Charge for the Eligible Refrigerators and Freezers collected,
processed, and recycled during the invoice period.


 


10.2         SCE will not pay any invoice
which does not contain all required documentation and information.


 


10.3         SCE will not pay any invoice
that includes charges (Recycling Charges, marketing/advertising costs,
Incentive check amounts) for Work performed or services rendered more than 60
days prior to the date the invoice is received by SCE unless the delay is
solely attributable to SCE’s failure to timely furnish the information
referenced in Section 11.


 


10.4         Contractor shall apply a
per-unit Recycling Charge on units that have been disabled, and only for the
following transactions:


 


10.4.1      Collection
of an Eligible Refrigerator or Freezer.


 


10.4.2      Collection contact made for
Eligible Refrigerator or Freezer 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.


 


17

















 


10.5         Contractor shall submit a final
invoice for the Contract Period within 15 Calendar Days after the termination
of this Agreement or final Eligible Refrigerator or Freezer pickup, whichever
occurs later, in hard copy and in electronic format acceptable to SCE.  Failure to submit the invoice and required
documentation to SCE within 15 Calendar Days may result in nonpayment of the
invoice by SCE.


 


11.           SCE
RESPONSIBILITIES 


 


11.1         SCE
shall provide to Contractor the following services:


 


11.1.1      Bi-weekly updates of SCE’s
Customer Records for purposes of identifying Eligible Customers.


 


11.1.2      Customer exceptions lookups
within five (5) Business Days of receipt of Contractor’s customer’s exceptions
list.


 


11.1.3      If SCE fails to provide
Contractor the required data within the time frames specified above in this
section, then the reporting time frames stipulated in Section 5 shall be
extended by the number of Business Days the information is delayed.


 


12.           OWNERSHIP
AND CUSTOMER CONFIDENTIALITY REQUIREMENTS 


 


12.1         Contractor, its employees, and
any Subcontractors shall not disclose any Confidential Customer Information
(defined below) to any person other than SCE’s personnel either during the term
of this Agreement or after its completion, without Contractor having obtained
the prior written consent of SCE, except as provided by lawful court order or
subpoena and provided Contractor gives SCE advance written notice of such order
or subpoena.


 


18

















 


12.1.1      “Confidential Customer
Information” includes, but is not limited to, the customer’s name, address and
all billing and usage information.  If
Contractor is uncertain whether any information concerning a customer should be
considered Confidential Customer Information, Contractor shall contact SCE
prior to disclosing the customer information.


 


12.1.3      Prior to any approved disclosure
of Confidential Customer Information, Contractor must enter into a
nondisclosure agree men t with SCE.


 


12.1.3      This provision does not prohibit
Contractor from disclosing non-confidential information concerning the Work to
the CPUC in any CPUC proceeding, or any CPUC-sanctioned meeting or proceeding
or other public forum.


 


12.2         All materials provided by SCE to
Contractor during the performance of this Agreement shall be returned to SCE
after this Agreement is terminated or at the request of SCE.  Contractor shall not duplicate any material
furnished by SCE without prior written approval from SCE.


 


12.3         All new, original information,
material, and documents prepared or caused to be prepared under this Agreement
by Contractor using PGC funds shall become the property of the CPUC.  Such information, or derivative information,
materials, and documents, shall be used by Contractor only for work performed
pursuant to this Agreement, 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 SCE.


 


12.4         All information disclosed by
Contractor to SCE during meetings or negotiations with regard to the Work, and
any information contained in drawings, specifications, technical reports, and
data provided by contractor to SCE during performance of this Agreement, shall
be held in confidence by SCE, and used only in relation to the Work pursuant to
this Agreement.


 


12.5         Contractor
Confidential Information


 


19

















 


12.5.1      Except as required by the CPUC,
SCE, its employees and any Subcontractors of SCE 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 and HCFC and HCF recovery and Contractor’s
computer software.  Prior to any
approved disclosure, persons to receive Contractor’s Confidential Information,
including SCE, its employees or any third-party, must enter into a
nondisclosure agreement with Contractor. 
SCE agrees to require its employees to execute appropriate nondisclosure
agreements prior to any contact with, or evaluation of Contractor’s
Confidential Information.


 


12.5.2      SCE 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:


 


(i)            Is not
generally known to the public or in the industry;


 


(ii)           Has been treated by Contractor
or any of its subsidiaries as confidential or proprietary; and


 


(iii)          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 protect able interest.


 


12.5.3      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 Section 12.


 


20

















 


13.           CONFLICT
OF INTEREST 


 


Contractor
agrees that time is of the essence for the Work described herein.  Contractor further agrees that any agreement
it has, or in which it may enter with other parties (e.g., utilities or
government agencies) for a recycling program, shall not detrimentally affect
the quality or timeliness of Contractor’s performance of the Work required
under this Agreement.


 


14.           RIGHT
TO AUDIT AND INSPECT; RECORDKEEPING 


 


14.1         SCE and/or its designated
representatives shall have the right to periodically audit, during normal
business hours, the records and documents in Contractor’s possession or under
its control, relating to the Work, upon reasonable advance written notice to
Contractor.  This right to audit shall
extend for a period of five (5) years beyond the termination or expiration of
this Agreement.  Contractor agrees to
allow SCE or its designated representatives reasonable access to such records
during normal business hours and to allow interviews of any employees who might
reasonably have information related to such records.  Further, Contractor represents and warrants that Contractor shall
contractually require all Subcontractors to provide SCE reasonable access to
relevant records and staff of all Subcontractors concerning the Work.


 


14.2         SCE and/or its designated
representatives shall have the right to periodically inspect, during normal
business hours, Contractor’s facilities, including trucks, used in performing
the Work, upon reasonable advance written notice to Contractor.  This right to inspect shall extend for a
period of five (5) years beyond the termination or expiration of this
Agreement.  Contractor agrees to allow
SCE and/or its designated representatives reasonable access to such facilities
during normal business hours and to allow interviews of any employees who might
reasonably have information related to such facilities.  Further, Contractor represents and warrants
that Contractor shall contractually require all Subcontractors to provide SCE
reasonable access to facilities and staff of all Subcontractors used in
performing the Work.


 


21

















 


14.3         Contractor shall retain, and
shall cause its Subcontractors to retain, all records and documents pertaining
to the Work for a period of not less than 5 years beyond the termination or
expiration of this Agreement.


 


15.           CHANGES 


 


Changes
to this Agreement shall be made by mutual agreement of the Parties through a
written amendment to the Agreement. 
Such written amendment may be incorporated into this Agreement through a
subsequent Purchase Order or Change Order.


 


16.           PERMITS,
CODES, AND STATUTES


 


16.1         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.


 


16.2         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, EP A, California EP A,
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 law:  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 SCE shall, in good faith, negotiate an amendment to this
Agreement reasonably compensating Contractor for its additional costs.


 


22

















 


17.           REPRESENTATIONS
AND WARRANTIES 


 


Contractor
represents and warrants to SCE 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 Eligible Refrigerators and Freezers 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.


 


18.           TITLE 


 


18.1         Title to the Hazardous Materials
shall pass to Contractor when Contractor collects Eligible Refrigerators and
Freezers from customers.


 


18.2         Title
of collected Eligible Refrigerators and Freezers shall pass to Contractor.


 


19.           INSURANCE 


 


19.1         Without limiting Contractor’s
liability to SCE, including the requirements of Section 20, Indemnity,
Contractor shall maintain for the Work, and shall require that each
Subcontractor 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, or materially
altered except on thirty (30) Calendar Days prior written notice to SCE.  Contractor shall furnish SCE with
certificates of insurance and forms acceptable to SCE and shall require each
Subcontractor 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 SCE’s Program Manager by Contractor within 30 days of execution of this Agreement, and by
Subcontractor upon receipt of its subcontract, but in any event prior to start
of its portion of the Work.  Any other
insurance carried by SCE, 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.


 


23

















 


(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 SCE, 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 SCE and SDG&E,
and their officers, agents, and employees, as 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 SCE and SDG&E 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 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 SCE and SDG&E as an additional
insured and be primary for all purposes.


 


24

















 


Contractor
shall report immediately to SCE 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 19,
Contractor shall, at its own cost, defend, indemnify, and hold harmless SCE and
SDG&E, and their respective 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 SCE or SDG&E would have
been protected had Contractor complied with all of the provisions of this
Section 19.


 


20.           INDEMNITY 


 


20.1         Contractor shall, at its own
cost, indemnify, defend, reimburse, and hold harmless SCE and SDG&E, their
officers, directors, employees, agents, assigns, and successors in interest,
(1) 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; and (2) for any breach of any representation or warranty
made by Contractor in this Agreement.


 


25

















 


In
all cases of death or injury to employees, officers or agents of either
Contractor or Subcontractors, whether or not caused by Contractor, SCE shall be
indemnified by Contractor for any and all liability except to the extent such
death or injury results from the negligence of SCE, and SDG&E shall be
indemnified by Contractor for any and all liability except to the extent such
death or injury results from the negligence of SDG&E.


 


20.2         Contractor shall, at its own
cost, indemnify, defend, reimburse, and hold harmless SCE and SDG&E, their
officers, directors, employees, and agents, assigns, and successors in
interest, from and against any and all liability imposed upon, or to be imposed
upon SCE or SDG&E as applicable, under any law imposing liability for the
environmental clean-up of the Hazardous Materials at any location (other than
SCE’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.


 


20.3         The indemnities set forth in
this Section 20 shall not be limited by the insurance requirements set
forth in Section 19.


 


21.           TERM
AND TERMINATION


 


21.1         This Agreement shall commence on
September 2,2003 and continue in effect until one of the following
occurs:  (a) December 31,2003; (b)
SCE determines that Contractor has picked up all units called in prior to
December 31,2003; (c) SCE determines that Contractor has exhausted all
available funding; (d) SCE learns that Contractor has filed a petition in
bankruptcy or that an involuntary petition has been filed against Contractor
and said petition(s); or (e) the
CPUC discontinues funding for the 2003 Statewide Residential Appliance
Recycling Program or this Agreement (the “Term”).


 


26

















 


21.2         Either Party may terminate the
Agreement for any reason by providing thirty (30) Calendar Days advance written
notice to the other Party.  The
termination shall become effective on the last day of said notice period
(“Termination Date”).  Contractor shall
be paid for all Work performed prior to the Termination Date.  In such event, SCE shall only be obligated
to pay contractor for such Eligible Refrigerators and Freezers actually
collected by Contractor for recycling as of the Termination Date, and shall not
be obligated to pay Contractor for units not collected.


 


21.3         In the event of termination
pursuant to this Section 21, Contractor and SCE shall work cooperatively
to facilitate the termination of the 2003 Statewide Residential Appliance
Recycling Program.


 


21.4         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 2003 Statewide Residential Appliance Recycling
Program or which addresses it in any manner.


 


22.           STOP
WORK 


 


SCE
may suspend the Work for good cause, such as safety concerns, fraud, or
excessive customer complaints, by orally notifying Contractor to suspend the
Work.  Contractor shall stop work
immediately, and may resume the Work only upon receiving written notice from
SCE to resume the Work.


 


23.           WRITTEN
NOTICES 


 


23.1         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 SCE as
follows:


 


27

















 


SCE:


Southern California Edison Company


Refrigerator
/Freezer Recycling Program


Tom Schober


2244 Walnut Grove Avenue - Quad 2A


Rosemead, CA 91770


(626) 302-8626 telephone


(626) 302-1834 facsimile


 


Contractor:


ARCA CALIFORNIA Inc.


Jack Cameron, President


7400 Excelsior Boulevard


Minneapolis, MN 55426


(952) 930-1717 telephone


(612) 889-6600 cellular


(952) 930-1800 facsimile


 


23.2         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
(3) 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.


 


24.           SUBCONTRACTS


 


24.1         Contractor represents and
warrants that Contractor shall contractually require each Subcontractor to be
bound by general terms and conditions protecting each participating Utility
which are equivalent to the terms and conditions of this Agreement.


 


24.2         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.  This Agreement shall not constitute
a contractual relationship between any Subcontractor and SCE nor any obligation
for payment by SCE to any Subcontractor.


 


28

















 


25.           INDEPENDENT
CONTRACTOR 


 


The
Contractor, and its employees, Subcontractors, and agents of Contractor in the performance
of this Agreement, shall act in an independent capacity and not as officers or
employees or agents of SCE.


 


26.           NON-DISCRIMINATION
CLAUSE 


 


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 40), marital status, and denial of family care leave.  Contractor and Subcontractors shall insure
that the evaluation and treatment of their employees and applicants for
employment are free from such discrimination and harassment.  Contractor and its Subcontractors shall
comply with the provisions of the Fair Employment and Housing Act (Government
Code Section 12990 (a-f) et seq.) and the applicable regulations
promulgated thereunder (California Code of Regulations, Title 2,
Section 7285 et seq.).  The
applicable regulations of the Fair Employment and Housing Commission
implementing Government Code Section 12990 (a-f), set forth in Chapter 5
of pi vision 4 of Title 2 of the California Code of Regulations, are
incorporated into this Agreement by reference and made a part hereof as if set
forth in full.  Contractor and its
Subcontractors shall give written notice of their obligations under this clause
to labor organizations with which they have a collective bargaining or other
Agreement.


 


Contractor
shall include the nondiscrimination and compliance provisions of this clause in
all subcontracts for the Work.


 


27.           CPUC
AUTHORITY TO MODIFY 


 


This
Agreement shall at all times be subject to such changes or modifications by the
CPUC as it may from time to time direct in the exercise of its jurisdiction.


 


29

















 


28.           NON-WAIVER 


 


None
of the provisions of this Agreement shall be considered waived by either Party
unless such waiver is specifically stated in writing.


 


29.           ASSIGNMENT 


 


In
the event SCE is required to assign its rights, duties and obligations under
this Agreement to the CPUC and/or its designee, Contractor agrees to consent to
such an assignment.  Other than the
aforementioned assignment, 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.


 


30.           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.


 


31.           DISPUTE
RESOLUTION 


 


31.1         Should any dispute arise between
the Parties regarding this Agreement, the Parties agree to enter into good
faith negotiations as soon as practicable to resolve such disputes within five
(5) Business Days of receipt of a written notice describing the dispute.  If the Parties are unable to resolve the
dispute, the Parties agree to refer the matter to the Energy Division for
resolution by the CPUC.


 


30

















 


31.2         All negotiations, mediation
and/or arbitration conducted pursuant to this clause are confidential and shall
be treated as compromise and settlement negotiations, to which
Section 1119 of the California Evidence Code shall apply, and
Section 1119 is incorporated herein by reference.


 


31.3         Notwithstanding the foregoing
provisions, a Party may seek a preliminary injunction or other provisional
judicial remedy if in its judgment such action is necessary to avoid
irreparable damage or to preserve the status quo.


 


31.4         Each Party is required to
continue to perform their obligations under this Agreement that are not related
to the dispute, pending final resolution of a dispute arising out of or
relating to this Agreement.


 


32.           SEVERABILITY 


 


In
the event that any of the terms, covenants or conditions of this Agreement, or
the application of any such term, covenant or condition, shall be held invalid
as to any person or circumstance by any court, regulatory agency, or other
regulatory body having jurisdiction, all other terms, covenants, or conditions
of this Agreement and their application shall not be affected thereby, but
shall remain in full force and effect, unless a court, regulatory agency, or
other regulatory body holds that the provisions are not separable from all
other provisions of this Agreement.


 


33.           GOVERNING
LAW 


 


This
Agreement 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 Los Angeles County, California.


 


34.           SECTION HEADINGS


 


Section headings
appearing in this Agreement are for convenience only and shall not be construed
as interpretations of text.


 


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35.           SURVIVAL 


 


Notwithstanding
completion or of this Agreement, the Parties shall continue to be bound by the
provisions of this Agreement which by their nature survive such completion or
termination.  Such provisions shall
include, but not be limited to, Sections 12, 14, and 20 of this Agreement.


 


36.           NONRELIANCE 


 


Neither
Party has relied upon any representation, warranty, projection, estimate or
other communication from the other not specifically so identified in this
Agreement.


 


37.           ATTORNEYS’
FEES 


 


In
the event of any legal action or other proceeding between the Parties arising
out of this Agreement or the transactions contemplated herein, the prevailing
Party in such legal action or proceeding shall be entitled to have and recover
from the other Party all costs and expenses incurred therein, including
reasonable attorneys’ fees.


 


38.           COOPERATION 


 


Each
Party agrees to cooperate with the other Party in whatever manner reasonably
required to facilitate the successful completion of this Agreement.


 


39.           ENTIRE
AGREEMENT 


 


This
Agreement contains the entire agreement and understanding between the Parties
and merges and supersedes all prior agreements, including but not limited to the 2002 Statewide Residential Appliance
Recycling Agreement between SCE and Contractor, representations and
discussions pertaining to the subject matter of this Agreement, including
Contractor’s proposals.  Any changes,
exceptions, or different terms and conditions proposed by Contractor are hereby
rejected unless expressly stated in this Agreement


 


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40.           COUNTERPARTS. 


 


This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together shall be deemed to be one
and the same instrument.


 


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IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be executed by their duly authorized representatives.


 


	
  CONTRACTOR:

  	
   

  	
  SCE:

  	
   

  
	
  ARCA CALIFORNIA, INC.

  	
   

  	
  SOUTHERN CALIFORIA EDISON

  COMPANY

  	
   

  
	
  By:

  	
  /s/
  Jack Cameron

  	
   

  	
  By:

  	
  /s/
  Linda Ziegler

  	
   

  
	
  Its:

  	
  President

  	
   

  	
  Its:

  	
  Director

  	
   

  
	
  Name
  Printed:

  	
  Jack
  Cameron

  	
   

  	
  Name
  Printed:

  	
  Linda
  Ziegler

  	
    

  
	
  Date:

  	
   August 28

  	
  ,
  2003

  	
   

  	
  Date:

  	
    September 2

  	
  ,
  2003

  	
   

  
												



 


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