EXHIBIT 10.1
2002 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.
2002 STATEWIDE RESIDENTIAL APPLIANCE RECYCLING PROGRAM AGREEMENT
TABLE OF CONTENTS
Page
1 DEFINITIONS 2
2 GENERAL TERMS 5
3 CONTRACT DOCUMENTS 5
4 CONTRACTOR RECYCLING SERVICES 6
5 CONTRACTOR REPORTS 10
6 CONTRACTOR CUSTOMER COMPLAINT
AND DISPUTE RESOLUTION PROCESS 12
7 ELIGIBLE CUSTOMERS AND REFRIGERATORS AND FREEZERS 12
8 INELIGIBLE CUSTOMERS AND REFRIGERATORS AND FREEZERS 13
9 CONTRACTOR'S COMPENSATION 14
10 CONTRACTOR BILLING 16
11 SCE RESPONSIBILITIES 17
12 OWNERSHIP AND CUSTOMER CONFIDENTIALITY REQUIREMENTS 17
13 CONFLICT OF INTEREST 19
14 RIGHT TO AUDIT 20
15 CHANGES 20
16 PERMITS, CODES AND STATUTES 20
17 WARRANTY 21
18 TITLE 21
19 INSURANCE 21
20 INDEMNITY 23
21 TERM AND TERMINATION 24
22 WRITTEN NOTICES 25
-i-
2002 STATEWIDE RESIDENTIAL APPLIANCE RECYCLING PROGRAM AGREEMENT
TABLE OF CONTENTS
Page
23 SUBCONTRACTS 26
24 INDEPENDENT CONTRACTOR NON-DISCRIMINATION CLAUSE 26
25 NON-DISCRIMINATION CLAUSE 26
26 CPUC AUTHORITY TO MODIFY 27
27 NON-WAIVER 27
28 ASSIGNMENT 27
29 FORCE MAJEURE 27
30 DISPUTE RESOLUTION 27
31 SEVERABILITY 28
32 GOVERNING LAW 28
33 SECTION HEADINGS 29
34 SURVIVAL 29
35 NONRELIANCE 29
36 ATTORNEYS' FEES 29
37 COOPERATION 29
38 ENTIRE AGREEMENT 29
39 COUNTERPARTS 30
-ii-
2002 STATEWIDE RESIDENTIAL APPLIANCE RECYCLING PROGRAM
AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the lst day of
April, 2002, 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
in 2002 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")
from customer residences in the separate service territories of SCE, Pacific Gas
& Electric ("PG&E"), and San Diego Gas & Electric ("SDG&E") ("the 2002 Statewide
Residential Appliance Recycling Program" or "Program").
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, in furtherance thereof, SCE desires to contract with
Contractor for comprehensive management of the 2002 Statewide Residential
Appliance Recycling Program.
WHEREAS, Contractor desires to contract with SCE for the comprehensive
management of the 2002 Statewide Residential Appliance Recycling Program, said
management to include, but is not limited to, collection and dismantling 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 Utility
customers 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.
-1-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
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 Xxxxxxx 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, in consideration of the foregoing Recitals, the mutual
covenants contained herein, the payments and agreement to be made and performed
by SCE as set forth, 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.
-2-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
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: APRIL 1, 2002 TO DECEMBER 31, 2002 for
completion of the Work. Contractor's final report shall be
submitted to SCE on or before January 31, 2003, 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: A resident in a participating Utility
service 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 2002 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. (See Section 7 of
this Agreement.)
1.13 Eligible Refrigerators and Freezers: Refrigerators and
freezers that meet the 2002 Statewide Residential Appliance
Recycling Program refrigerator and freezer eligibility
criteria as set forth in Section 7 of this Agreement.
-3-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
1.14 Hard-to-Reach: Eligible Customers who are residents of areas
other than the Los Angeles basin, San Francisco Bay Area, San
Diego Area or Sacramento and/or are moderate income and/or
multifamily or mobile home tenants and are within the zip
codes.
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.
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, incentive or handling fee charges.
-4-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
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 2002 Statewide Residential Appliance Recycling Program: 2002
Program implemented in the separate service territories of
SCE, PG&E, and SDG&E. Contractor's specific authorized
activities to be performed in the Utilities' respective
service territories.
1.27 Subcontractor: An entity contracting directly or indirectly
with Contractor to furnish services or materials as part of or
directly related to Contractor's Work.
1.28 Utility or Utilities: SCE, PG&E, and/or SDG&E.
1.29 Work: Any and all obligations of Contractor to be performed
for SCE, PG&E and SDG&E and Eligible Customers of SCE, PG&E
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.
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.
-5-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
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, 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.
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
-6-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
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.
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.
(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.
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:
-7-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
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) which will be provided
to Contractor by SCE. The check and the CFL Pack are each
referred to individually as the "Incentive".
4.5.2 SCE shall arrange for the CFL Packs to be delivered to
Contractor at a location to be mutually agreed upon by the
Parties. SCE shall require the manufacturer to deliver the CFL
Pack in packages designed to diminish the possibility of
damage to the units during transit.
4.5.3 Upon receipt of each shipment of CFL Packs, Contractor shall
inspect the shipment for any damaged or defective CFL Packs.
Contractor shall contact the SCE Program Manager for
instructions regarding the disposition of any damaged and/or
defective CFL Pack. SCE shall reimburse Contractor for all
costs associated with the return of any such damaged and/or
defective CFL Pack.
4.5.4 Contractor shall deliver CFL Pack to Program Participants at
the time the Eligible Refrigerator or Freezer is picked up.
Each Program Participant who receives a CFL Pack must sign a
receipt acknowledging that he/she received the CFL Pack.
4.5.5 If, after a CFL Pack is delivered by Contractor, a Program
Participant alleges that a CFL Pack is damaged or defective,
SCE shall replace such defective and/or damaged CFL Pack. 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. If the damage to a
CFL Pack is the result of any action by Contractor, SCE shall
be relieved of any obligation to pay Contractor a Handling Fee
in connection with the damaged CFL Pack.
4.5.6 Contractor shall process and mail Incentive checks via the
U.S. Postal System within 15 Business Days of the date the
Eligible Refrigerator or Freezer was picked up.
4.5.7 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 date of pickup and date the
Incentive check was mailed or date the CFL Pack was provided
to Program Participants.
-8-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
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 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.
4.6 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.
4.7 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:
4.7.1 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.
-9-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
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.
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.
4.8 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.
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 a 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;
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:
-10-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
(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.
(iii) An unaudited accounting of CFL packs remaining in
Contractor's inventory of CFL packs. At the end of
the program year, Contractor shall complete and
provide SCE with a reconciliation to account for the
CFL packs that were defective, damaged, or stolen.
Contractor shall reimburse SCE for any and all CFL
Packs stolen from Contractor after delivery to
Contractor.
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.
-11-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
5.1.6 Upon reasonable written request from an authorized
representative of SCE, special and nonrecurring reports during
the course of the 2002 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 2002 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 unreasonable 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 for the 2002 Statewide Residential
Appliance Recycling Program shall include the following:
7.1.1 Customer is a resident in a participating Utility
service territory and occupies an existing
single-family residential (Domestic
-12-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
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 2002
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.
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
Handling Fee nor Recycling Charge for Eligible
Refrigerators or Freezers picked up from an Eligible
Customer that exceeds the limit of two Eligible
Refrigerators or Freezers.
7.2 ELIGIBLE REFRIGERATORS AND FREEZERS for the 2002 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 10 cubic feet
and maximum size is 27 cubic feet.
8. INELIGIBLE CUSTOMERS AND REFRIGERATORS AND FREEZERS
8.1 Ineligible Customers
-13-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
8.1.2 Low income customers who participate in a Utility's
refrigerator replacement program for low-income
customers in 2002.
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 10 cubic
feet or greater than 27 cubic feet.
8.2.2 Commercial refrigerators or freezers,
ammonia-containing gas refrigerators, commercial
freezers, and room air conditioners
8.2.3 Refrigerators or freezers not capable of cooling or
freezing or both, as applicable.
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. The total amount to be paid to Contractor
for work performed in each Utility's service territory shall not exceed
the amounts included.
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 $35 for each Incentive check
payment distributed to Program Participants under the terms
and conditions set forth in this Agreement.
9.1.3 Handling Fee (All Utilities). For the Contract Period, SCE
shall pay Contractor a fee of Two Dollars ($2.00) ("Handling
Fee") per CFL Pack for each CFL Pack distributed to Program.
Participants under the terms and conditions set forth in this
Agreement. The Handling Fee shall compensate Contractor for
-14-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
the storage, handling and delivery of the CFL Pack, additional
labor, and any and all other costs and expenses in connection
with the CFL Pack Incentive, including any additional
documentation and reports that may be necessary or required as
a result of the CFL Pack Incentive. SCE shall not be
responsible for any other compensation or reimbursement to
Contractor as a result of the CFL Pack Incentive except for
the Handling Fee.
9.1.4 Marketing and Advertising Costs (PG&E and SDG&E only). During
the Contract period, SCE shall pay Contractor per unit
recycled (pick-up and properly disposed of) in the service
territories of PG&E and SDG&E respectively, as full
compensation for approved marketing activities conducted by
Contractor in the service territories of PG&E and SDG&E.
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 approvals
of PG&E and 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;
(iii) For CFL Pack Handling Fees incurred, within thirty
(30) Calendar Days of receipt of Contractor's weekly
invoice and approval by SCE.
SCE shall attempt to review and approve all weekly invoices
within 5 Business Days of receipt of a properly documented
invoice.
-15-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
10. CONTRACTOR BILLING
10.1 On a weekly basis, in arrears, Contractor shall prepare and
submit a weekly invoice to SCE to substantiate the Recycling
Charges, Advertising Costs, Handling Fees, 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's approval. The weekly listing shall include the date of
unit pickup, the date the Incentive check was mailed, and the
date the CFL Pack was provided to a Program Participant.
The weekly invoice shall also include the applicable ATO
number, per- unit Recycling Charge for the Eligible
Refrigerators and Freezers collected, processed, and recycled,
and the total Handling Fee due for the CFL Packs distributed
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,
or CFL Pack Handling Fees) 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.
10.5 Contractor shall apply a 25% per unit discount to the
Recycling Charge to any additional units when two, or more in
the case of multifamily, Eligible Refrigerators or Freezers
are removed during a single collection appointment from
Customer's residence or multifamily site.
-16-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
Said discount shall be clearly documented and identified in
Contractor's invoice and accompanying report.
10.6 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 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 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.
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.
-17-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
12.1.2 Prior to any approved disclosure of Confidential Customer
Information, persons receiving said information, including
Contractor, its employees, or third parties, must enter into a
nondisclosure agreement with SCE. Contractor agrees to require
its employees and subcontractors to execute a nondisclosure
agreement prior to performing any services under this
Agreement.
12.1.3 This provision does not prohibit Contractor from disclosing
non-confidential information concerning the 2002 Statewide
Residential Appliance Recycling Program 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 2002 Statewide Residential
Appliance Recycling Program, 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 Confidential Contractor Information
12.5.l 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
-18-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
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
protectable 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.
13. CONFLICT OF INTEREST
Contractor agrees that time is of the essence for the services
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
-19-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
recycling program, shall not detrimentally affect the quality or
timeliness of Contractor's performance of the services required under
this Agreement.
14. RIGHT TO AUDIT
SCE or its designated representatives shall have the right to
periodically review and copy 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 three (3) years beyond the
termination or cancellation of this Agreement. Contractor agrees to
allow the auditor(s) 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 agrees to contractually require all Subcontractors to
provide access to relevant records and staff of all Subcontractors
concerning the Work.
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,
-20-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
including, but not limited to, EPA, California EPA, RCRA, the
Occupational Safety and Health Act of 1970 (OSHA), and all
standards, rules, regulations, and orders issued pursuant to
such local, state, and federal safety and health laws. Should
any such law, rule, or regulation be enacted or promulgated
subsequent to the date of this Agreement, which renders
Contractor's performance impractical, Contractor and SCE
shall, in good faith, negotiate an amendment to this Agreement
reasonably compensating Contractor for its additional costs.
17. WARRANTY
Contractor 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, not be
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
-21-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
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.
(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, its officers, agents, and
employees, and additional insureds; (b) be primary
for all purposes; and (e) 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 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
-22-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
non-sudden and/or non-accidental discharge, release
or escape of polluting materials. Such insurance
shall acknowledge SCE as an additional insured and be
primary for all purposes.
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, its officers, agents, employees, assigns, and
successors in interest, from and against any and all
liability, damages, losses, claims, demands, actions,
causes of action, costs, including attorney's fees
and expenses, or any of them, resulting from the
death or injury to any person or damage to any
property to the extent that SCE 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, PG&E, and SDG&E, their
officers, directors, employees, agents, assigns, and
successors in interest, from and against any and all
liability, damages, losses, claims, suits, demands, actions,
causes of action, costs, expenses, including attorney's fees
and expenses, or any of them resulting from the death or
injury to any person or damage to or destruction of any
property caused by Contractor, Subcontractors, and employees,
officers and agents of either Contractor or Subcontractors, or
any of them, and arising out of or attributable to the
performance or nonperformance of Contractor's obligations
under this Agreement and including, without limitation,
failure to comply fully with every federal, state, or local
law, statute, regulation, rule, ordinance, or government
directive which directly or indirectly regulates or affects
the handling, storage, recycling, or disposal of the Hazardous
Materials to be managed by Contractor hereunder.
In all cases of death or injury to employees, officers or
agents of either Contractor or Subcontractors, whether or not
caused by Contractor,
-23-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
SCE, PG&E, or 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 SCE, PG&E, or SDG&E.
20.2 Contractor shall, at its own cost, indemnify, defend,
reimburse, and hold harmless SCE, PG&E, 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 PG&E, 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 April 1, 2002 and continue in
effect until one of the following occurs: (a) December 31,
2002; (b) SCE determines that Contractor has picked up all
units called in prior to December 31, 2002; (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 ha been filed against Contractor
and said petition(s); OR (e) the CPUC discontinues funding for
the 2002 Statewide Residential Appliance Recycling Program or
this Agreement.
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 2002 Statewide Residential Appliance
Recycling Program.
-24-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
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 2002 Statewide
Residential Appliance Recycling Program or which addresses it
in any manner.
22. WRITTEN NOTICES
22.1 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:
SCE: Southern California Edison Company
Refrigerator/Freezer Recycling Program Manager
0000 Xxxxxx Xxxxx Xxxxxx - Xxxx 0X
Xxxxxxxx, XX 00000
(000) 000-0000 telephone
(000) 000-0000 facsimile
CONTRACTOR: ARCA, Inc.
Attention: Mr. Xxxx Xxxxxxx, President
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
(000) 000-0000 telephone
(000) 000-0000 facsimile
22.2 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; (e) 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.
-25-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
23. SUBCONTRACTS
23.1 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.
23.2 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.
24. 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.
25. 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 Division 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.
-26-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
Contractor shall include the nondiscrimination and compliance
provisions of this clause in all subcontracts for the Work.
26. 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.
27. NON-WAIVER
None of the provisions of this Agreement shall be considered waived by
either Party unless such waiver is specifically stated in writing.
28. ASSIGNMENT
SCE may be required to assign its rights, duties and obligations under
this Agreement to the CPUC and/or its designee. Contractor hereby
consents to such 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.
29. 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.
30. DISPUTE RESOLUTION
30.1 Should any dispute arise between the Parties regarding this
Agreement, the Parties agree to enter into good faith
negotiations as
-27-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
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.
30.2 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.
30.3 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.
30.4 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.
31. 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.
32. 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.
-28-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
33. SECTION HEADINGS
Section headings appearing in this Agreement are for convenience only
and shall not be construed as interpretations of text.
34. 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, Contractor's indemnity protecting SCE,
PG&E, and SDG&E from any liability for environmental clean up arising
out of Contractor's Work.
35. NONRELIANCE
Neither Party has relied upon any representation, warranty, projection,
estimate or other communication from the other not specifically so
identified in this Agreement.
36. 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.
37. COOPERATION
Each Party agrees to cooperate with the other Party in whatever manner
reasonably required to facilitate the successful completion of this
Agreement.
38. ENTIRE AGREEMENT
This Agreement contains the entire agreement and understanding between
the Parties and merges and supersedes all prior representations and
discussions
-29-
2002 STATEWIDE RESIDENTIAL REFRIGERATOR RECYCLING
AGREEMENT
pertaining to this Agreement, including Contractor's proposal. Any
changes, exceptions, or different terms and conditions proposed by
Contractor are hereby rejected unless expressly stated in this
Agreement.
39. 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.
ARCA CALIFORNIA INC. SOUTHERN CALIFORNIA
EDISON COMPANY
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxxx Xxxx
-------------------------- ----------------------------
Its: President Its: Sr. Vice President
Date: June 18, 2002 Date: July 10, 2002
-30-
