**Exhibit 10.34**

 

**2004-05 STATEWIDE RESIDENTIAL APPLIANCE RECYCLINGPROGRAM AGREEMENT**

 

 

### BETWEEN

 

**ARCA CALIFORNIA, INC.**

 

### **AND**

###  

### **SOUTHERN CALIFORNIA EDISON COMPANY**

###  

 

**This program is funded by California utility customers andadministered by Southern California Edison Company under the auspices of theCalifornia Public Utilities Commission.**

 

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**TABLE OF CONTENTS**

 
| 1    DEFINITIONS                                                  |   |
|-----------------------------------------------------------------------------|--------|
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| 2   GENERAL TERMS                                                 |   |
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| 3   CONTRACT DOCUMENTS                                            |   |
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| 4    CONTRACTOR RECYCLING SERVICES                                |   |
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| 5   CONTRACTOR REPORTS                                            |   |
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| 6   CONTRACTOR CUSTOMER COMPLAINT AND DISPUTE  RESOLUTION PROCESS |   |
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| 7   ELIGIBLE CUSTOMERS AND REFRIGERATORS AND  FREEZERS            |   |
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| 8    INELIGIBLE CUSTOMERS AND REFRIGERATORS AND FREEZERS          |   |
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| 9    CONTRACTOR’S COMPENSATION                               |   |
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| 10   CONTRACTOR BILLING                                           |   |
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| 11   SCE RESPONSIBILITIES                                         |   |
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| 12    OWNERSHIP AND CUSTOMER CONFIDENTIALITY REQUIREMENTS         |   |
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| 13   CONFLICT OF INTEREST                                         |   |
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| 14    RIGHT TO AUDIT AND INSPECT; RECORDKEEPING                   |   |
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| 15    CHANGES                                                     |   |
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| 16    PERMITS, CODES AND STATUTES                                 |   |
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| 17    REPRESENTATIONS AND WARRANTIES                              |   |
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| 18   TITLE                                                        |   |
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| 19    INSURANCE                                                   |   |
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| 20    INDEMNITY                                                   |   |
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| 21   TERM AND TERMINATION                                         |   |
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| 22    STOP WORK                                                   |   |

 

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| 23    WRITTEN NOTICES          |   |
|------------------------------------------|--------|
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| 24    SUBCONTRACTS             |   |
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| 25    INDEPENDENT CONTRACTOR   |   |
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| 26   NON-DISCRIMINATION CLAUSE |   |
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| 27    CPUC AUTHORITY TO MODIFY |   |
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| 28    NON-WAIVER               |   |
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| 29    ASSIGNMENT               |   |
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| 30    FORCE MAJEURE            |   |
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| 31    DISPUTE RESOLUTION       |   |
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| 32    SEVERABILITY             |   |
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| 33    GOVERNING LAW            |   |
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| 34    SECTION HEADINGS         |   |
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| 35    SURVIVAL                 |   |
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| 36    NONRELIANCE              |   |
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| 37    ATTORNEYS’ FEES     |   |
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| 38    COOPERATION              |   |
|                                     |   |
| 39    ENTIRE AGREEMENT         |   |
|                                     |   |
| 40    COUNTERPARTS             |   |

 

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THISAGREEMENT (“Agreement”) is effective as of the 1st day of January, 2004(“Effective Date”) by and between **SOUTHERNCALIFORNIA EDISON COMPANY**, a California corporation (“SCE”) and **ARCA CALIFORNIA, INC.**, a Californiacorporation and wholly owned subsidiary of Appliance Recycling Centers ofAmerica, Inc. (“Contractor”).  SCE andContractor are also each individually referred to herein as “Party” andcollectively as “Parties.”

 

RECITALS

 

WHEREAS the Parties desire to implement an appliance recycling programduring Program Years 2004 and 2005 under the terms and conditions required bythe California Public Utilities Commission and as set forth herein, for theremoval of older, working inefficient refrigerators and freezers (“EligibleRefrigerators and Freezers”) (“the 2004-05 Statewide Residential ApplianceRecycling Program” or “Program”) from customer residences in the serviceterritory of SCE.

 

WHEREAS, SCE desires to ensure the safe, lawful recovery and recyclingor lawful disposal, as necessary, of CFCs, HCFCs, HFCs, PCBs, mercury, and usedoil and Hazardous Materials.

 

WHEREAS, SCE desires to contract with Contractor for the comprehensivemanagement of the 2004-05 Statewide Residential Appliance Recycling Program inthe SCE Territory.

 

WHEREAS, Contractor desires to contract with SCE for the comprehensiveimplementation of recycling services of the 2004-05 Statewide ResidentialAppliance Recycling Program in the SCE Territory, said management to include,without limitation, the collection, disabling and proper disposal of primaryand secondary working Eligible Refrigerators and Freezers; removal of CFCs,HCFCs, HFCs, PCBs, mercury and other Hazardous Materials from collectedEligible Refrigerators and Freezers; handling storage and legal disposal ofcompressor oil, PCBs and other Hazardous Materials; recycling of metal, sulfurdioxide, CFCs, HCFCs, HFCs and oil; providing incentives to participatingcustomers of SCE and SDG&E who relinquish Eligible Refrigerators andFreezers, performance of a Program Participant survey, and providing reportsand data to assist SCE in tracking program goals and expenditures andevaluating the program.

 

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WHEREAS, Contractor represents (i) that it has knowledge of the federalClean Air Act, the Resource Conservation and Recovery Act, and Toxic SubstancesControl 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 CaliforniaPublic Resources Code (Chapter 3.5, commencing with Section 42160 of Part 3 ofDivision 30), and all other applicable federal, state, and local regulationsregarding the proper processing and recycling of refrigerators and freezers andhazardous materials contained within the refrigerators and freezers; (ii) thatit has knowledge of the hazards associated with the removal, handling, storage,recycling, and legal disposal of hazardous materials; (iii) that it hasexperience and expertise in such removal, handling, storage, recycling, andlegal disposal; (iv) that it uses only qualified personnel, (includingsubcontractor’s and agent’s personnel) who have been instructed and certifiedin the proper safety procedures to be used in such removal, handling, storage,recycling, or legal disposal, and (v) that it has established and will continueto operate and maintain its recycling center in the City of Compton or otherareas acceptable to Contractor and SCE.

 

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

 

NOW THEREFORE, for valuable consideration, the receipt and sufficiencyof 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 amendedfrom time to time.

 

1.2           Amendment:  Future document signed by the authorizedrepresentatives of both Parties which changes or modifies the terms of thisAgreement.

 

1.3           BusinessDay:  The period from one midnight tothe following midnight, excluding Saturdays, Sundays, and holidays.

 

1.4           CalendarDay:  The period from one midnight tothe following midnight, including Saturdays, Sundays, and holidays.

 

1.5           CFCs:Chlorofluorocarbons.  (See also HCFCsand HFCs.)

 

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

 

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1.7           ChangeOrder: Document issued by SCE to Contractor and accepted by Contractor thatchanges or modifies the terms of this Agreement.

 

1.8           ContractPeriod: **January 1, 2004 to December 31, 2005**for completion of the Work, unless otherwise terminated pursuant to the termsand conditions of this Agreement.

 

1.9           CPUC:the California Public Utilities Commission.

 

1.10         DispositionCode:  Code assigned to each customerappliance turn-in order form (ATO) that identifies whether a working ornon-working Refrigerator or Freezer was collected, or disabled with thecustomer’s permission, if the order was cancelled by the customer, whichincentive 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, ChangeOrder, this Agreement, and any amendment to this Agreement, as required by anylegal entity having jurisdiction over the Work.

 

1.12         EligibleCustomer: For purposes of this Agreement, an Eligible Customer is a resident inSCE’s service territory who occupies an existing single-family residential(Domestic Rate) or multi-unit dwelling or mobile home, or is the owner orauthorized representative of existing multifamily housing and who may qualifyfor the 2004-05 Statewide Residential Appliance Recycling Program.  Eligible Customers include customers whoreside in the SCE’s service territory but who take distribution services froman entity other than SCE.  (See Section7 of this Agreement.)

 

1.13           EligibleRefrigerators and Freezers: Refrigerators and freezers that meet the 2004-05Statewide Residential Appliance Recycling Program refrigerator and freezereligibility 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 basinand/or are moderate income and/or multifamily or mobile home tenants and arewithin the zip codes listed.

 

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1.15         HazardousMaterials: Any substance or material which has been designated as hazardous ortoxic by the U.S. Environmental Protection Agency, the California Department ofToxic Substances Control and/or any other governmental agency now orhereinafter authorized to regulate materials in the environment, including, butnot limited to “Materials which require special handling” as defined inCalifornia Public Resources Code Section 42167 or other applicable code, ruleor regulation, which is contained in or is derived from the EligibleRefrigerators or Freezers.

 

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

 

1.17         PCB:Polychlorinated Biphenyl.

 

1.18         PGCfunds: Public Goods Charge Funds.  Thesource of the funds used to pay Contractor for work performed pursuant to thisAgreement.

 

1.19         PrimaryRefrigerator or Freezer: Refrigerator or freezer currently in use by customeras the main refrigerator or freezer.

 

1.20         ProgramParticipants: Eligible Customers who turn in Eligible Refrigerators or Freezersduring the Contract Period.

 

1.21         ProgramYear 2004:  January 1, 2004 – December31, 2004, unless otherwise directed by the CPUC.

 

1.22         ProgramYear 2005:  January 1, 2005 – December31, 2005, unless otherwise directed by the CPUC.

 

1.23         PurchaseOrder: Document issued by SCE to facilitate payment to Contractor for the Workdescribed herein.

 

1.24         RecyclingCenter: The site at which Contractor will process Eligible Refrigerators andFreezers, remove CFCs, HCFCs, HFCs, PCBs and other Hazardous Materials, andrecycle or legally dispose of Hazardous materials.

 

1.25         RecyclingCharge: Per-unit price paid by SCE for services performed by Contractor for theWork.  The Recycling Charge does notinclude marketing or incentive charges.

 

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1.26         RemoteArea: A city or town that, because of its population and distance from theContractor’s base of operations, justifies the use of an extended timeframe (upto 25 Business Days from the initial customer contact) to complete collectionwhen mutually agreed to by the Parties.

 

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1.27         SecondaryRefrigerator or Freezer: Surplus refrigerator or freezer currently in use andutilized by customer concurrently with primary refrigerator or freezer.

 

1.28         2004-05Statewide Residential Appliance Recycling Program: 2004-05 statewide appliancerecycling program approved by the CPUC to be implemented in service territoryof SCE.

 

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

 

1.30         Utility:SCE.

 

1.31         Work:Any and all obligations of Contractor to be performed for SCE and EligibleCustomers of SCE pursuant to and during the Term of this Agreement, anyAmendment to this Agreement, or a subsequent Purchase Order or Change Orderincorporating this Agreement.  The Workshall include the services described in Sections 4, 5, 6, and 10 of thisAgreement, but is not limited to, Eligible Refrigerator and Freezer schedulingand collection, Eligible Refrigerator and Freezer processing, handling,storing, recycling, and legal disposal of Hazardous Materials and Documentationpreparation, customer complaint resolution and other related activities.

 

2.             GENERAL TERMS

 

Contractorshall perform the Work and its associated obligations described below as anindependent contractor during the Term of this Agreement.

 

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3.             CONTRACTDOCUMENTS

 

ThisAgreement shall consist of the following documents: this Agreement, anyamendments to this Agreement, Purchase Orders, and Change Orders.  In the event of any conflict or apparentconflict between any of the provisions of the documents comprising thisAgreement, the following order of construction of the documents shall apply:

 

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

 

(ii)           ChangeOrders incorporating and reflecting any Amendments to the Agreement inchronological order from the most recent to the earliest;

 

(iii)          This Agreement; and

 

(iv)          Purchase Order incorporating this Agreement.

 

EachParty shall notify the other immediately upon the identification of any suchconflict or inconsistency.

 

4.             CONTRACTOR RECYCLING SERVICES

 

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

 

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4.2           Contractorshall be responsible for the following collection services in SCE’s serviceterritory:

 

(i)    Collect allEligible Refrigerators and Freezers from Eligible Customers’ residences within20 Business Days from the date the Refrigerator or Freezer was scheduled forpickup (unless otherwise requested by the Eligible Customer).  In Remote Areas of the service territory, oras approved by SCE’s Program Manager, collection shall be no later than 25Business Days from the date the Eligible Refrigerator or Freezer was scheduledfor pickup, unless otherwise requested by the Eligible Customer.  In the event of unanticipated high demandfor Program services, Contractor and the SCE Program Manager shall, by mutualagreement, establish other appropriate time limitations as necessary.

 

Contractorshall dedicate 14 international straight trucks with 24’ cargo boxes andhydraulic lift gates solely to performing the Work.

 

Atwenty-five percent (25%) reduction in the Recycling Charge shall be made bySCE if Eligible Refrigerators and Freezers are collected later than 20 BusinessDays after the Eligible Refrigerator or Freezer was scheduled for pickup or 25Business Days in Remote Areas of each Utility’s service territory after theEligible Refrigerator or Freezer was scheduled for pickup, unless the EligibleCustomer requested the later collection date or the Contractor and the SCEProgram Manager established, by mutual agreement, other appropriate timelimitations.

 

(ii)   Ensure thatthe Eligible Refrigerator or Freezer is a working (cooling) unit beforeremoving it from a****residence;

 

(iii)  Ensure the EligibleRefrigerator or Freezer was manufactured prior to 1990;

 

(iv)  Disable theEligible Refrigerator or Freezer by cutting through the electrical cord priorto leaving pick-up location; and

 

(v)   Transportand process the Eligible Refrigerator or Freezer at its Recycling Center.

 

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Contractorrepresents and warrants that no refrigerator or freezer, nor any componentthereof, picked up by Contractor or a Subcontractor in the performance of theWork, shall be resold or reused.

 

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4.3           Contractorshall be solely responsible for all methods, techniques, sequences, andprocedures for the dismantling of Eligible Refrigerators and Freezers,processing of metal panels and components, recycling of recovered scrap metal,glass and plastics, removal and management including, but not limited to,recycling or lawful disposal of Hazardous Materials.

 

4.4           Contractorshall be solely responsible for all methods, techniques, sequences, andprocedures for the removal and management of all capacitors found in EligibleRefrigerators and Freezers, and the removal and disposal of compressor oil,CFCs, HCFCs, HFCs, PCBs, mercury and other Hazardous Materials from the timeContractor collects Eligible Refrigerators and Freezers pursuant to thisAgreement.

 

4.5           Contractorand SCE shall establish and implement a financial incentive service as follows:

 

4.5.1        EachProgram Participant will be entitled to receive a check in the amount ofThirty-five Dollars ($35.00).  The checkis referred to as the “Incentive”.

 

4.5.2        Contractorshall process and mail an Incentive check to each Program Participant via theU.S. Postal System within 15 Business Days of the date such ProgramParticipant’s Eligible Refrigerator or Freezer was picked up.

 

4.5.3        Asrequired under Section 10, Contractor shall provide SCE with a weekly listingof Program Participants qualifying for an Incentive check for SCE’sapproval.  The weekly listing shallinclude the Program Participants’ names and addresses, ATO numbers, and datesof pickup

 

4.5.8        UponSCE’s reimbursement of Contractor for the $35.00 Incentive described in Section4 of this Agreement, SCE shall be under no further obligation with respect toreimbursement of such amounts and such reimbursement shall constitute fullpayment to Contractor on behalf of the Program Participants entitled to receivesuch Incentives.  Moreover, upon SCE’spayment to Contractor of such reimbursement, Contractor shall be deemed theholder of such property as far as the interests of the Program Participants forany and all purposes, including, but not limited to, complying with theunclaimed property 

 

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lawsof California and any and all other applicable states.  SCE shall not assume any responsibility forother disposition of the reimbursement payments after such reimbursement ispaid to Contractor and shall not be entitled to the reversion of any amounts sopaid.

 

4.7           Contractor’sCustomer Eligibility Inquiry List.  Contractor shall provide SCEwith its Customer Eligibility Inquiry Customer Eligibility Inquiry listwithin five (5) Business Days of receipt of SCE’s relevant customer recordsprovided to Contractor for purposes of identifying Eligible Customers.

 

4.8           Contractorservices documentation and record maintenance services. Contractor shall document and maintain records for services performedunder this Agreement as follows:

 

4.8.1        ApplianceTurn-in Order Form (ATO) to collect data such as (a) customer name, address,home and work phone numbers, (b) SCE account number, (c) Eligible Refrigeratoror Freezer manufacturer’s name model and style, (d) defrost type, color, size,amperage, and age of unit; (e) location of Eligible Refrigerator or Freezerwithin the residence, (f) disposition code, (g) identification of unitscontaining CFC-11, HCFCs and HFCs, (h) special pick-up instructions (ifapplicable), and (i) in all cases each participating Eligible Customer’ssignature, when Contractor picks up an Eligible Refrigerator or Freezer.  Contractor shall obtain the signature ofcustomer in the event refrigerator or freezer is discovered not to be anEligible Refrigerator or Freezer.

 

ATOdata shall be compiled in electronic mode, employing a software programsuitable for exchange of information with SCE, subject to the approval of SCE’sProgram Manager.

 

Contractorshall utilize a computer software program designed to assign a Disposition Codeto each ATO for each Program Participant.

 

ATOoriginals shall be maintained at the Contractor’s Recycling Center and madeavailable to SCE in accordance with Section 14 of this Agreement.

 

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4.9           ContractorSurvey.  Contractor shall conduct aProgram Participant telephone survey throughout the year, using a stratifiedpurposeful sample of 5% to 20% of the total number of Program Participants.  The stratification and frequency of thesurvey may be modified periodically by SCE, provided that an Amendment to thisAgreement or a separate agreement shall be entered into if any suchmodification 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 elicitinformation such as refrigerator or freezer use, customer demographics andcustomer satisfaction.  Surveyquestions, stratification and frequency of survey may be modified periodicallyas determined by SCE provided modified survey is reasonably comparable.

 

5.             CONTRACTORREPORTS

 

5.1           Contractorshall provide SCE with reports on the Work performed under this Agreement.  Required data shall be compiled inelectronic mode, employing software suitable to exchange information with SCE,subject to approval of SCE’s Program Manager. SCE requests that Contractor submit program documentation, includinginvoices, electronically.

 

5.1.1        Aweekly invoice report as described below in Section 10;

 

5.1.2.       A weeklycheck disbursement report that corresponds to a weekly invoice that shallinclude the Program Participants names and addresses, ATO numbers, dates ofpickup, and the dates the Incentive checks were mailed

 

5.1.3        Aweekly program status report which shall contain scheduled, cancelled andbilled pickups delineating such by hard-to-reach (HTR) and non-HTR.

 

5.1.4        Amonthly report, provided no later than the 15th Calendar Day of the precedingmonth’s activity which shall contain the following:

 

(i)    Number ofEligible Refrigerators and Freezers processed through the Recycling Centerduring the previous month and the manufacturer’s name, model and style, color,size in cubic feet, age of unit, and defrost type.

 

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(ii)   Environmentaldata such as an estimated breakdown of amount of CFCs/HCFCs/HFCs recovered;number of pounds of PCB articles removed; number of pounds of mercury articlesremoved, number and size of recycled Eligible Refrigerators and Freezerscontaining CFC-11*;*  amount of compressor oil recycled; andweight of metals materials sold for recycling: and the weight of non-recyclablematerials disposed.

 

5.1.5                Anannual Program report summarizing Program Year 2004 information shall besubmitted to SCE within 30 days after final collection of outstanding 2004scheduled pickups.

 

5.1.6                Anannual Program report summarizing Program Year 2005 information shall besubmitted to SCE within 30 days after final collection of outstanding 2005scheduled pickups.

 

5.1.7        CustomerComments and Complaints Report.  Contractor shall provide SCE with a monthlystatus report on customer comments and status of customer complaints (on acumulative basis) as described below in Section 6.

 

5.1.8        ApplianceCollection Reports. A reportindicating the number of Eligible Refrigerators and Freezers that werecollected during the preceding month and that were scheduled for collectionfrom Eligible Customers during that month, the date of the initial contact withthe Eligible Customer, any subsequent rescheduled dates initiated by EligibleCustomer, the date or dates the Eligible Refrigerator or Freezer was scheduledfor collection, and the actual collection date.

 

5.1.9        Uponreasonable oral or written request from an authorized representative of SCE,special and nonrecurring reports during the course of the 2004-05 StatewideResidential Appliance Recycling Program. Such report content will be developed by the Parties in anticipation ofor response to requests from the CPUC, SCE internal audits, or compilation ofdata relevant to the 2004-05 Statewide Residential Appliance Recycling Programactivities.  An amendment to thisAgreement or a separate agreement shall be entered into only if any 

 

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suchreport necessitates a substantial change in labor, as substantiated byContractor, requiring the negotiation of a charge separate from the RecyclingCharge.

 

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6.             CONTRACTORCUSTOMER COMPLAINTAND DISPUTE RESOLUTION PROCESS.

 

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

 

Anycustomer questions or disputes that cannot be answered or resolved by Contractorshall be referred to SCE’s program manager within 24 hours of occurrence.

 

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

 

7.             ELIGIBLECUSTOMERS ANDREFRIGERATORS AND FREEZERS

 

7.1           ***Eligible Customers*** shall include the following:

 

7.1.1        Customeris a resident in SCE’s service territory and occupies an existing single-familyresidential (Domestic Rate) or multi-unit dwelling or mobile home, or is theowner or authorized representative of existing multifamily housing and who mayqualify for the 2004-05 Statewide Residential Appliance Recycling Program.  Eligible customers include customers whoreside in SCE’s service territory but who take distribution services from anentity other than SCE.

 

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

 

(ii)           Failureto verify customer eligibility shall result in nonpayment of fees.

 

7.1.2        Customeris the owner of the Eligible Refrigerator or Freezer****or possesses written consent from the actual owner to turn inthe Eligible Refrigerator or Freezer.

 

7.1.3        Customerturns in no more than two Eligible Refrigerators or Freezers or one eachEligible Refrigerator and Freezer per year unless written SCE approval isobtained for any additional Eligible Refrigerator or Freezer.  SCE shall not be obligated to pay Contractorthe Incentive check amount or Recycling Charge for any Eligible Refrigerator orFreezer picked up from an Eligible Customer that exceeds the limit of twoEligible Refrigerators or Freezers.

 

7.2           ***Eligible Refrigerators and Freezers*** for the 2004-05 Statewide ResidentialAppliance Recycling Program shall depend on the following:

 

7.2.1        Refrigeratoror freezer must be capable of cooling or freezing, or both, as applicable, attime of collection.

 

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

 

7.2.3        Refrigeratoror freezer was manufactured prior to 1990.

 

8.             INELIGIBLE CUSTOMERS AND REFRIGERATORS AND FREEZERS

 

8.1           IneligibleCustomers

 

8.1.2        Lowincome customers who participate in a SCE’s refrigerator replacement programfor low-income customers in 2004-05.

 

8.1.3        Commercialcustomers who are on commercial SCE rates

 

8.1.4        Aresident in a non-participating utility service territory.

 

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8.2           Ineligible Refrigerators and Freezers

 

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

 

8.2.2        Refrigeratorsor freezers containing sulphur dioxide (SO2) or ammonia.

 

8.2.3        Commercialrefrigerators or freezers, ammonia-containing gas refrigerators, commercialfreezers, and room air conditioners

 

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

 

8.2.5        Refrigeratorsor freezers manufactured during or after 1990.

 

9.             CONTRACTOR’S COMPENSATION 

 

9.1           Summaryof Fees Payable to Contractor

 

ProgramYear 2004.  SCE shall pay Contractor asfull compensation for completing the Work during 2004**.**  The total amount tobe paid to Contractor for Work performed in accordance with the terms andconditions of this Agreement shall not exceed the 2004 Maximum AggregateAmount.

 

ProgramYear 2005.  SCE shall pay Contractor asfull compensation for completing the Work during 2005.  The total amount to be paid to Contractorfor Work performed in accordance with the terms and conditions of this Agreementshall not exceed the 2005 Maximum Aggregate Amount.

 

9.1.1        RecyclingCharge.  SCEshall pay to Contractor a per-unit Recycling Charge for the number of unitscollected pursuant to this Agreement.

 

9.1.2        IncentiveCost.  SCE shall reimburse Contractor $35 for eachIncentive check payment distributed to Program Participants under the terms andconditions of this Agreement.

 

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9.2           Paymentschedule.

 

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

 

(i)            ForIncentive check reimbursement, within thirty (30) Calendar Days of receipt inSCE’s Accounts Payable Division and Energy Efficiency Division of Contractor’sweekly invoice and approval by SCE;

 

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(ii)           ForRecycling Charges incurred, within thirty (30) Calendar Days of receipt inSCE’s Accounts Payable Division and Energy Efficiency Division of Contractor’sweekly invoice and approval by SCE;

 

SCEshall attempt to review and approve all weekly invoices within 5 Business Daysof receipt in SCE’s Accounts Payable Division and Energy Efficiency Division ofa properly documented invoice. Contractor shall submit its invoices to Energy Efficiency Division viaSCE’s Program Manager at the contact information set forth in Section 23below.  Contractor shall submit itsinvoices to SCE’s Accounts Payable Division in accordance with the instructionsin the Purchase Order.

 

10.           CONTRACTORBILLING

 

10.1         On aweekly basis, in arrears, Contractor shall prepare and electronically submittwo weekly invoices to SCE as specified above to substantiate the RecyclingCharges, and Incentive check amounts due for Contractor’s recycling servicesand payments to Program Participants for the prior week.  Contractor shall provide SCE with a weeklylisting of prospective Program Participants. The weekly listing shall include the Program Participants’ names andaddresses, dates of unit pickups, and the dates the Incentive checks were mailed.

 

Theweekly Recycling Charges invoice shall include the Refrigerators and Freezerscollected, processed, and recycled during the invoice period and the totalinvoice amount.  Contractor shallprovide with each invoice Program Participants’ weekly listing including ATOnumber, service date, recycling charge for the first unit, recycling charge forsecond unit, if applicable, and total number of units and total recyclingcharge amount invoiced.

 

Theweekly Participants Incentive Checks invoice shall include the per-unitIncentive for the Eligible Refrigerators and Freezers payments to ProgramParticipants.  Contractor shall providewith each invoice Program Participants’ weekly listing including participants’names, ATO numbers, appliance type, pickup date, and total number of units andtotal Incentives amount invoiced.

 

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10.2         SCEwill not pay any invoice which does not contain all required documentation andinformation.

 

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10.3         SCEwill not pay any invoice that includes charges (Recycling Charges Incentivecheck amounts) for Work performed or services rendered more than 60 days priorto the date the invoice is received by SCE unless the delay is solelyattributable to SCE’s failure to timely furnish the information referenced inSection 11.

 

10.4         Contractorshall apply a per-unit Recycling Charge on units that have been disabled, andonly for the following transactions:

 

10.4.1      Collectionof an Eligible Refrigerator or Freezer.

 

10.4.2      Collectioncontact made for Eligible Refrigerator or Freezer that cannot be removed due toobstruction because of size or structural barrier, *provided that* Contractor obtains written permission fromCustomer to permanently disable said unit, and Contractor then permanentlydisables the unit.

 

10.5         Contractorshall submit a final invoice as specified in Section 9.2 above for the ContractPeriod within 15 Calendar Days after the termination or expiration of thisAgreement or final Eligible Refrigerator or Freezer pickup, whichever occurslater, in hard copy and in electronic format acceptable to SCE.  Failure to submit the invoice and requireddocumentation to SCE within 15 Calendar Days may result in nonpayment of theinvoice by SCE.

 

11.           SCERESPONSIBILITIES

 

11.1         SCE shall provide to Contractor the following services:

 

11.1.1      Weeklyupdates of SCE’s Customer Records for purposes of identifying EligibleCustomers.

 

11.1.2      Customerlookups within five (5) Business Days of receipt of Contractor’s CustomerEligibility Inquiry list.

 

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

 

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12.           OWNERSHIP AND CUSTOMER CONFIDENTIALITY REQUIREMENTS

 

12.1         Contractor,its employees, and any Subcontractors shall not disclose any ConfidentialCustomer Information (defined below) to any person other than SCE’s personneleither during the Term of this Agreement or after its completion, withoutContractor having obtained the prior written consent of SCE, except as providedby lawful court order or subpoena and provided Contractor gives SCE advancewritten notice of such order or subpoena.

 

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

 

12.1.3      Prior toany approved disclosure of Confidential Customer Information, Contractor mustenter into a nondisclosure agreement with SCE.

 

12.1.3      Thisprovision does not prohibit Contractor from disclosing non-confidentialinformation concerning the Work to the CPUC in any CPUC proceeding, or anyCPUC-sanctioned meeting or proceeding or other public forum.

 

12.2         Allmaterials provided by SCE to Contractor during the performance of thisAgreement shall be returned to SCE after this Agreement is terminated or at therequest of SCE.  Contractor shall notduplicate any material furnished by SCE without prior written approval fromSCE.

 

12.3         Allnew, original information, material, and documents prepared or caused to beprepared under this Agreement by Contractor using PGC funds shall become theproperty of the CPUC.  Such information,or derivative information, materials, and documents, shall be used byContractor only for work performed pursuant to this Agreement, and shall not beused in Contractor’s general course of business, disclosed nor revealed in 

 

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anyway to a third party without the prior express written consent of SCE.

 

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12.4         ContractorConfidential Information

 

12.4.1      Except asrequired by the CPUC, SCE, its employees and any Subcontractors of SCE shallnot disclose any confidential or proprietary information provided to SCE byContractor (“Contractor’s Confidential Information”) to any person other thanContractor’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 ConfidentialInformation shall include, without limitation, Contractor’s systems for oildegassing, CFC recovery, CFC-11 and HCFC and HCF and PCB recovery andContractor’s computer software.  Priorto any approved disclosure, persons to receive Contractor’s ConfidentialInformation, including SCE, its employees or any third-party, must enter into anondisclosure agreement with Contractor. SCE agrees to require its employees to execute appropriate nondisclosureagreements prior to any contact with, or evaluation of Contractor’sConfidential Information

 

12.4.2      SCEagrees that, except as otherwise required by the CPUC, without the priorwritten consent of Contractor, SCE will not, during the Term or aftertermination or expiration of this Agreement, directly or indirectly, discloseto any individual, corporation, or other entity, or use for its own or suchother’s benefit, any of Contractor’s Confidential Information, whether reducedto written or other tangible form, which:

 

(i)            Isnot generally known to the public or in the industry;

 

(ii)           Hasbeen treated by Contractor or any of its subsidiaries as confidential orproprietary; and

 

(iii)          Is ofa competitive advantage to Contractor or any of its subsidiaries and in theconfidentiality of which Contractor or any of its subsidiaries has a legallyprotectable interest.

 

12.4.3      Contractor’sConfidential Information which becomes generally known to the public or in theindustry, or, in the 

 

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confidentialityof which, Contractor and its subsidiaries cease to have a legally protectableinterest, shall cease to be subject to the restrictions of this Section 12.

 

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13.           CONFLICT OFINTEREST

 

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

 

14.           RIGHT TO AUDIT AND INSPECT; RECORDKEEPING

 

14.1         SCEand/or its designated representatives shall have the right to periodicallyaudit, during normal business hours, the records and documents in Contractor’spossession or under its control, relating to the Work, upon reasonable advancewritten notice to Contractor.  Thisright to audit shall extend for a period of five (5) years beyond thetermination or expiration of this Agreement. Contractor agrees to allow SCE or its designated representativesreasonable access to such records during normal business hours and to allowinterviews of any employees who might reasonably have information related tosuch records.  Further, Contractorrepresents and warrants that Contractor shall contractually require allSubcontractors to provide SCE reasonable access to relevant records and staffof all Subcontractors concerning the Work.

 

14.2         SCEand/or its designated representatives shall have the right to periodicallyinspect, during normal business hours, Contractor’s facilities, includingtrucks, used in performing the Work, upon reasonable advance written notice toContractor.  This right to inspect shallextend for a period of five (5) years beyond the termination or expiration ofthis Agreement.  Contractor agrees toallow SCE and/or its designated representatives reasonable access to suchfacilities during normal business hours and to allow interviews of anyemployees who might reasonably have information related to suchfacilities.  Further, Contractorrepresents and warrants that Contractor shall contractually require allSubcontractors to provide SCE reasonable access to facilities and staff of allSubcontractors used in performing the Work.

 

14.3         Contractorshall retain, and shall cause its Subcontractors to retain, all records anddocuments pertaining to the Work for a 

 

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periodof not less than 5 years beyond the termination or expiration of thisAgreement.

 

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15.           CHANGES

 

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

 

16.           PERMITS, CODES, AND STATUTES

 

16.1         Contractorshall perform the Work set forth in this Agreement in accordance with allapplicable 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 allSubcontractors to obtain, all licenses and permits required by law, rule,regulation, and ordinance, or any of them, to engage in the activities requiredin connection with this transaction. Contractor also represents and warrants that, to the best of itsknowledge, based upon reasonable and prudent inquiry, any storage site and anydisposal facility to which the Hazardous Materials may be moved are incompliance with any and all federal, state and local laws and regulationspertaining thereto and that such storage sites and disposal facilities aresuitable and may lawfully receive and/or dispose of the Hazardous materials.

 

16.2         Contractorshall comply with all applicable local, state, and federal safety and healthlaws in effect at 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 tosuch local, state, and federal safety and health laws.  Should any such law, rule, or regulation beenacted or promulgated subsequent to the date of this Agreement, which rendersContractor’s performance impractical, Contractor and SCE shall, in good faith,negotiate an amendment to this Agreement reasonably compensating Contractor forits additional costs.

 

17.           REPRESENTATIONS AND WARRANTIES

 

Contractorrepresents and warrants to SCE that the Work shall be performed in a competentmanner, in accordance with this Agreement, 

 

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andthat the acceptance, handling, storage, recycling, and disposal of the EligibleRefrigerators and Freezers and the Hazardous Materials shall be in accordancewith (i) the requirements of this Agreement, and (ii) the applicable local,state, and federal laws and regulations in effect at the time of the Workperformed.

 

18.             TITLE

 

18.1         Titleto the Hazardous Materials shall pass to Contractor when Contractor collectsEligible Refrigerators and Freezers from customers.

 

18.2         Titleof collected Eligible Refrigerators and Freezers shall pass to Contractor.

 

19.           INSURANCE

 

19.1         Withoutlimiting Contractor’s liability to SCE, including the requirements of Section20, Indemnity, Contractor shall maintain for the Work, and shall require thateach Subcontractor maintain, at all times during the Work and at its ownexpense, valid and collectible insurance as described below.  This insurance shall not be terminated,expire, or materially altered except on thirty (30) Calendar Days prior writtennotice to SCE.  Contractor shall furnishSCE with certificates of insurance and forms acceptable to SCE and shallrequire each Subcontractor to furnish Contractor with certificates ofinsurance, as evidence that policies do provide the required coverage andlimits of insurance listed below.  Suchcertificates 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 tostart of its portion of the Work.  Anyother insurance carried by SCE, its officers, agents, and employees, which maybe applicable, shall be deemed to be excess insurance, and Contractor’sinsurance shall be deemed primary for all purposes notwithstanding anyconflicting provision in Contractor’s policies to the contrary.

 

(i)            Workers’Compensation Insurance with statutory limits, as required by the state in whichthe Work is performed, and Employer’s Liability Insurance with limits of notless than $5,000,000.  Carriersfurnishing such insurance shall be required to waive all rights of subrogation 

 

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againstSCE, its officers, agents, employees, and other contractors and subcontractors.

 

(ii)           ComprehensiveBodily Injury and Property Damage Liability Insurance, including owners, andcontractors’ protective liability, product/completed operations liability,contractual liability, and coverage for liability incurred as a result ofsudden and accidental discharge, dispersal, release or escape of pollutingmaterials, (excluding automobile) with a combined single limit of not less than$3,000,000 for each occurrence.  Suchinsurance shall: (a) acknowledge SCE and their officers, agents, and employees,as additional insureds; (b) be primary for all purposes; and (c) containstandard cross-liability provisions.

 

(iii)          AutomobileBodily Injury and Property Damage Liability Insurance with a combined singlelimit of not less than $3,000,000 for each occurrence.  Such insurance shall cover liability arisingout of the use by Contractor and Subcontractors of owned, non owned and hiredautomobiles in the performance of the Work. As used herein, the term “automobile” means vehicles licensed orrequired to be licensed under the Vehicle Code of the state in which the Workis performed.  Such insurance shallacknowledge SCE as an additional insured and be primary for all purposes.

 

(iv)          EnvironmentalImpairment 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 fornecessary costs or expense of removing, cleaning-up, transporting, nullifying,and rendering ineffective, or any of them, any substance which has causedenvironmental impairment and such insurance shall contain no exclusions for non-suddenand/or non-accidental discharge, release or escape of polluting materials.  Such insurance shall acknowledge SCE as anadditional insured and be primary for all purposes.

 

Contractorshall report immediately to SCE and confirm in writing any injury, loss, ordamage incurred by Contractor or Subcontractors in excess of $500.00, or itsreceipt of notice of any claim by a third party in excess of 

 

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$500.00,or any occurrence that might give rise to such claim.

 

IfContractor fails to comply with any of the provisions of this Section 19,Contractor shall, at its own cost, defend, indemnify, and hold harmless SCE andtheir respective officers, agents, employees, assigns, and successors ininterest, from and against any and all liability, damages, losses, claims,demands, actions, causes of action, costs, including attorney’s fees andexpenses, or any of them, resulting from the death or injury to any person ordamage to any property to the extent that SCE would have been protected hadContractor complied with all of the provisions of this Section 19.

 

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20.           INDEMNITY

 

20.1         Contractorshall, at its own cost, indemnify, defend, reimburse, and hold harmless SCE andits officers, directors, employees, agents, assigns, and successors ininterest, (1) from and against any and all liability, damages, losses, claims,suits, demands, actions, causes of action, costs, expenses, includingattorney’s fees and expenses, or any of them resulting from the death or injuryto any person or damage to or destruction of any property caused by Contractor,Subcontractors, and employees, officers and agents of either Contractor orSubcontractors, or any of them, and arising out of or attributable to theperformance or nonperformance of Contractor’s obligations under this Agreementand including, without limitation, failure to comply fully with every federal,state, or local law, statute, regulation, rule, ordinance, or governmentdirective which directly or indirectly regulates or affects the handling,storage, recycling, or disposal of the Hazardous Materials to be managed byContractor hereunder; and (2) for any breach of any representation or warrantymade by Contractor in this Agreement.

 

Inall cases of death or injury to employees, officers or agents of eitherContractor or Subcontractors, whether or not caused by Contractor, SCE shall beindemnified by Contractor for any and all liability except to the extent suchdeath or injury results from the negligence of SCE.

 

20.2         Contractorshall, at its own cost, indemnify, defend, reimburse, and hold harmless SCE,their officers, directors, employees, and agents, assigns, and successors ininterest, from and against any and all liability imposed upon, or to be imposedupon SCE as applicable, under any law imposing liability for the environmentalclean-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 theperformance or nonperformance of Contractor’s obligations under this Agreement,or any other site to which the Hazardous Materials have migrated.

 

20.3         Theindemnities set forth in this Section 20 shall not be limited by the insurancerequirements set forth in Section 19.

 

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21.           TERM ANDTERMINATION

 

21.1         ThisAgreement shall commence on January 1, 2004 and continue in effect until one ofthe following occurs: (a) December 31, 2005; (b) SCE determines that Contractorhas picked up all units called in prior to December 31, 2005; (c) SCEdetermines that Contractor has exhausted all available funding; (d) SCE learnsthat Contractor has filed a petition in bankruptcy or that an involuntarypetition has been filed against Contractor and said petition(s);**or**(e) the CPUC discontinues funding forthe 2004-05 Statewide Residential Appliance Recycling Program or this Agreement(the “Term”).

 

21.2         EitherParty 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 onthe last day of said notice period (“Termination Date”).  Contractor shall be paid for all Workperformed prior to the Termination Date. In such event, SCE shall only be obligated to pay contractor for suchEligible Refrigerators and Freezers actually collected by Contractor forrecycling as of the Termination Date, and shall not be obligated to payContractor for units not collected.

 

21.3         In theevent of termination pursuant to this Section 21, Contractor and SCE shall workcooperatively to facilitate the termination of the 2004-05 StatewideResidential Appliance Recycling Program.

 

21.4         EachParty shall immediately provide at no cost to the other any testimony, or anycommunications with the CPUC, or any board, division, committee or memberthereof, which could reasonably be anticipated to affect the 2004-05 StatewideResidential Appliance Recycling Program or which addresses it in any manner.

 

22.           STOP WORK

 

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

 

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23.           WRITTEN NOTICES

 

23.1         Anywritten notice, demand or request required or authorized in connection withthis Agreement, shall be deemed properly given if delivered in person or sentby facsimile, nationally recognized overnight courier, or first class mail,postage prepaid, to the address specified below, or to another address specifiedin writing by SCE as follows:

 

**SCE**:

SouthernCalifornia Edison CompanyRefrigerator /Freezer Recycling ProgramTom Schober

2244Walnut Grove Avenue - Quad 2ARosemead, CA 91770(626) 302-8626 telephone(626) 302-1834 facsimiletom.schober@sce.com

 

**Contractor**:

ARCACALIFORNIA Inc.Jack Cameron, President7400 Excelsior BoulevardMinneapolis, MN 55426(952) 930-1717 telephone(612) 889-6600 cellular(952) 930-1800 facsimilejcameron@arcainc.com

 

23.2         Noticesshall be deemed received (a) if personally or hand-delivered, upon the date ofdelivery to the address of the person to receive such notice if deliveredbefore 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 bytelephone notification of transmission by the noticing Party; or (d) if byovernight courier: on the Business Day following delivery to the overnightcourier within the time limits set by that courier for next-day delivery.

 

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24.           SUBCONTRACTS

 

24.1         Contractorrepresents and warrants that Contractor shall contractually require eachSubcontractor to be bound by general terms and conditions protecting eachparticipating Utility which are equivalent to the terms and conditions of thisAgreement.

 

24.2         Contractorshall, at all times, be responsible for the Work, and acts and omissions, ofSubcontractors and persons directly or indirectly employed by them for servicesin connection with the Work.  ThisAgreement shall not constitute a contractual relationship between anySubcontractor and SCE nor any obligation for payment by SCE to anySubcontractor.

 

25.           INDEPENDENT CONTRACTOR

 

TheContractor, and its employees, Subcontractors, and agents of Contractor in theperformance of this Agreement, shall act in an independent capacity and not asofficers or employees or agents of SCE.

 

26.           NON-DISCRIMINATION CLAUSE

 

Contractorand its Subcontractors shall not unlawfully discriminate, harass, or allowharassment 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 insurethat the evaluation and treatment of their employees and applicants foremployment are free from such discrimination and harassment.  Contractor and its Subcontractors shallcomply with the provisions of the Fair Employment and Housing Act (GovernmentCode Section 12990 (a-f) et seq.) and the applicable regulations promulgatedthereunder (California Code of Regulations, Title 2, Section 7285 et seq.). Theapplicable regulations of the Fair Employment and Housing Commissionimplementing Government Code Section 12990 (a-f), set forth in Chapter 5 ofDivision 4 of Title 2 of the California Code of Regulations, are incorporatedinto this Agreement by reference and made a part hereof as if set forth infull.  Contractor and its Subcontractorsshall give written notice of their 

 

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obligationsunder this clause to labor organizations with which they have a collectivebargaining or other Agreement.

 

Contractorshall include the nondiscrimination and compliance provisions of this clause inall subcontracts for the Work.

 

27.           CPUC AUTHORITY TO MODIFY

 

ThisAgreement shall at all times be subject to review and change or modification bythe CPUC in the exercise of its jurisdiction.

 

28.           NON-WAIVER

 

Noneof the provisions of this Agreement shall be considered waived by either Partyunless such waiver is specifically stated in writing.

 

29.           ASSIGNMENT

 

Inthe event SCE is required to assign its rights, duties and obligations underthis Agreement to the CPUC and/or its designee, Contractor agrees to consent tosuch an assignment.  Other than theaforementioned assignment, neither Party shall delegate or assign thisAgreement or any part or interest thereof, without the prior written consent ofthe other Party, and any assignment without such consent shall be void and ofno effect.

 

30.           FORCE MAJEURE

 

Failureof Contractor to perform any of the provisions of this Agreement by reason ofany of the following shall not constitute an event of default or breach of thisAgreement: 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 ofthe United States of America), acts of the public enemy, scarcity or rationingof gasoline or other fuel or vital products, inability to obtain materials orlabor, or other causes which are reasonably beyond the control of theContractor.

 

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31.           DISPUTE RESOLUTION

 

31.1         Shouldany dispute arise between the Parties regarding this Agreement, the Partiesagree to enter into good faith negotiations as soon as practicable to resolvesuch disputes within five (5) Business Days of receipt of a written noticedescribing the dispute.  If the Partiesare unable to resolve the dispute, the Parties agree to refer the matter to theEnergy Division for resolution by the CPUC.

 

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31.2         Allnegotiations, mediation and/or arbitration conducted pursuant to this clauseare confidential and shall be treated as compromise and settlementnegotiations, to which Section 1119 of the California Evidence Code shallapply, and Section 1119 is incorporated herein by reference.

 

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

 

31.4         EachParty is required to continue to perform their obligations under this Agreementthat are not related to the dispute, pending final resolution of a disputearising out of or relating to this Agreement.

 

32.           SEVERABILITY

 

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

 

33.           GOVERNING LAW

 

ThisAgreement shall be interpreted, governed, and construed under the laws of theState of California as if executed and to be performed wholly within the Stateof California.  Any action brought toenforce or interpret this Agreement shall be filed in Los Angeles County,California.

 

34.           SECTIONHEADINGS

 

Sectionheadings appearing in this Agreement are for convenience only and shall not beconstrued as interpretations of text.

 

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35.           SURVIVAL

 

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

 

36.           NONRELIANCE

 

NeitherParty has relied upon any representation, warranty, projection, estimate orother communication from the other not specifically so identified in thisAgreement.

 

37.           ATTORNEYS’ FEES

 

Inthe event of any legal action or other proceeding between the Parties arisingout of this Agreement or the transactions contemplated herein, the prevailingParty in such legal action or proceeding shall be entitled to have and recoverfrom the other Party all costs and expenses incurred therein, includingreasonable attorneys’ fees.

 

38.           COOPERATION

 

EachParty agrees to cooperate with the other Party in whatever manner reasonablyrequired to facilitate the successful completion of this Agreement.

 

39.           ENTIREAGREEMENT

 

ThisAgreement contains the entire agreement and understanding between the Partiesand merges and supersedes all prior agreements, representations and discussionspertaining to the subject matter of this Agreement, including Contractor’sproposals.  Any changes, exceptions, ordifferent terms and conditions proposed by Contractor are hereby rejectedunless expressly stated in this Agreement.

 

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40.           COUNTERPARTS.

 

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

 

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

 
| **CONTRACTOR:**            | **SCE:**                               |
|----------------------------|----------------------------------------|
|                       |                                   |
| **ARCA  CALIFORNIA, INC.** | **SOUTHERN  CALIFORIA EDISON COMPANY** |
|                       |                                   |
| By:                        | /s/Jack Cameron                        |   | By: | /s/Pamela A. Bass |   |
| Its:                       | President                              |   |   | Its: | Sr. Vice President |   |
| CSBU                       |                                   |   |
| Name Printed:              | Jack Cameron                           |   |   | Name Printed: | Pamela A. Bass |   |
| Date:                      | January 17, 2004                       |   | Date: | January 22, 2004 |   |
|                            |                                        |  |  |  |  |  |  |  |  |  |  |  |  |  |

 

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