EXHIBIT 10.8
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
1. PARTIES
The parties to the Agreement are Appliance Recycling Centers of
America, Inc., the entity responsible for the performance of the work
as one Party (hereinafter referred to as "Contractor"), and Southern
California Edison Company, a California corporation (hereinafter
referred to as "Edison") as the other Party.
2. RECITALS
The Agreement is entered into with reference to the following facts,
among others:
2.1. The Parties have previously entered into agreements with
respect to the recycling of older inefficient refrigerators
and freezers and the disposal of hazardous materials ("the
Refrigerator Recycling Program").
2.2 The Parties desire to continue to implement a Refrigerator
Recycling Program ("the 1998 Program") for the removal of
older, inefficient second refrigerators and freezers
("Refrigerators and Freezers") from Edison Customer
residences thereby reducing the load demand on the
electrical system under the terms set forth below.
2.3 Edison desires to continue and increase its efforts to
reduce the load demand on the electrical system through the
further removal of older inefficient second Refrigerators
and Freezers.
2.4 Edison desires to ensure the safe, lawful recovery and
recycling or lawful disposal, as necessary, of CFCs, PCBs,
and Hazardous Materials.
2.5 In furtherance thereof, Edison desires to contract with
Contractor for the continued comprehensive management of the
1998 Program.
2.6 Contractor desires to contract with Edison for the continued
comprehensive management of the 1998 Program, said
management to include collection and dismantling of second
Refrigerators and Freezers; removal of CFCs, PCBs and other
Hazardous Materials from collected Refrigerators and
Freezers; handling storage and legal disposal of compressor
oil, PCBs and other Hazardous Materials; recycling of metal,
sulfur dioxide, and CFCs; providing incentives to
participating Edison Customers who relinquish second
Refrigerators and Freezers; and performance of a customer
survey.
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
2.7 Contractor represents (i) that it has knowledge of the
Metallic Discard Act, effective January 1, 1994, which
prohibits the disposal of Refrigerators and Freezers in
landfills and requires that Refrigerators and Freezers be
shredded for metal recovery following removal of CFCs, PCBs,
and other Hazardous Materials contained in discarded
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 purchased property and has established
and will continue to operate and maintain its recycling
center on said purchased property in the City of Xxxxxxx or
other area acceptable to Contractor and Edison.
2.8 Pursuant to a 1997 decision of the California Public
Utilities Commission ("CPUC"), Edison's rights, duties and
obligations under this Agreement may be assigned in the
future to the California Board for Energy Efficiency
("Board") or, at the Board's discretion, to the Board's
administrator. In the event of such assignment, Edison will
have no further obligations under this Agreement except as
stated in Section 9.3.3.3.
2.9 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.
3. AGREEMENT
3.1 In consideration of the aforesaid Recitals, the mutual
covenants contained herein, the payments and agreement to be
made and performed by Edison as set forth in the pricing
schedule attached hereto as Exhibit A and incorporated by
reference herein, Contractor shall perform the Work and its
associated obligations as an independent contractor.
3.2 This Agreement shall be incorporated in a Purchase Order as
the terms and conditions for performing the work.
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
4. DEFINITIONS
4.1 Agreement: This document, the terms and conditions contained
in this Agreement as amended from time to time.
4.2 CFCs: Chlorofluorocarbons
4.3 CFC-11: Chlorofluorocarbons contained in refrigerator and
freezer insulating foam.
4.4 Change Order: Document issued by Edison to Contractor to
change a Purchase Order.
4.5 Contract Period: January 1, 1998 to September 30, 1998, or
as extended by mutual agreement of the Parties.
4.6 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.
4.7 Edison's Specified Volume: The number of units to which
Edison commits for the Contract Period.
4.8 Eligible Customers: Residential customers in Edison service
territory who meet the customer eligibility criteria in
Section 7.
4.9 Eligible Freezers: Freezers that meet the 1998 Program
appliance eligibility criteria as set forth in Section 7.
4.10 Eligible Refrigerators: Second refrigerators that meet the
1998 Program appliance eligibility criteria as set forth in
Section 7.
4.11 Freezer: A freezer which provides supplementary cold storage
to a primary freezer or to the freezer section located
within the primary refrigerator in a residential household.
4.12 Hazardous Materials: Any substance or material which has
been designated as hazardous or toxic by the U.S.
Environmental Protection Agency, the California Department
of Toxic Substances Control and/or any other governmental
agency now or hereinafter authorized to regulate materials
in the environment, including, but not limited to
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
"Materials which require special handling" as defined in
California Public Resources Code Section 42167, which is
contained in or is derived from the Refrigerators or
Freezers.
4.13 1998 Program: Refrigerator Recycling Program defined by this
Agreement.
4.14 1998 Program Participants: Eligible customers who turn in
qualifying Refrigerators or Freezers.
4.15 PCB: Polychlorinated Biphenyl
4.16 Purchase Order: Document issued by Edison to Contractor and
executed by the Parties, which incorporates by reference
this Agreement.
4.17 Recycling Center: The site at which Contractor will process
Refrigerators and Freezers, remove CFCs, PCBs and other
Hazardous Materials, and recycle or legally dispose of
Hazardous materials.
4.18 Recycling Charge: Per-unit price for services performed by
Contractor under scope of work, including CFC-11 recovery
services, and excluding bond purchasing, incentive and
financing services.
4.19 Second refrigerator: Surplus refrigerator utilized by
customer concurrently with primary refrigerator.
4.20 Specified Volume: The number of units to which Edison
commits for the Contract Period.
4.21 Subcontractor: Either an entity contracting directly with
Contractor to furnish services or materials as part of or
directly related to, the Work; or an entity contracting with
Subcontractor of any tier to furnish services or materials
as a part of, or directly related to, the Work.
4.22 Work: Any and all obligations of Contractor to be performed
pursuant to this Agreement or a Purchase Order incorporating
this Agreement, such as Refrigerator and Freezer collection,
Refrigerator and Freezer processing, handling, storing,
recycling, and legal disposal, of Hazardous Materials and
Documentation preparation.
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
5. CONTRACT DOCUMENTS
5.1 The contract between the Parties shall consist of the
following documents: Change Orders, Purchase Order, this
Agreement, and any amendments to this Agreement. In the
event of conflicting provisions within the contract, the
provisions of the contract shall govern in the following
order:
5.1.1 Amendments to the Agreement in chronological order
from the most recent to the earliest;
5.1.2 Change Orders incorporating and reflecting any
Amendments to the Agreement in chronological order
from the most recent to the earliest.
5.1.3 This Agreement.
5.1.4 Purchase Order incorporating this Agreement.
5.2 Each party shall notify the other immediately upon the
determination of any such conflict or inconsistency.
6. SCOPE OF WORK
6.1 Contractor shall be responsible for customer services
including provision of inbound 800 telephone numbers for
Customers, use and all communication services, scheduling of
Refrigerator and Freezer collection appointments,
verification of customer and appliance eligibility, and
documentation of customer data.
6.2 Contractor shall (i) collect all Eligible Refrigerators and
Eligible Freezers from Customers' residences within 10 to 15
working days from the date of initial customer contact
(unless otherwise requested by the customer, in remote areas
of the service territory, or approved by Edison's 1998
Program Manager because of 1998 Program response in excess
of the Edison's Specified Volume for which approval shall
not be unnecessarily withheld, and collection shall be no
later than 25 working days from the date of the initial
customer contact, unless otherwise requested by customer),
(ii) ensure Refrigerator or Freezer is an operating unit
before removal from residence, (iii) disable the unit prior
to leaving pick-up location, and (iv) process unit at its
Recycling Center.
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
6.3 Contractor shall be solely responsible for all methods,
techniques, sequences, and procedures for the dismantling of
Refrigerators and Freezers, processing of metal panels and
components, recycling of recovered scrap metal, removal,
recycling, or lawful disposal of Hazardous Materials.
6.4 Contractor shall be solely responsible for all methods,
techniques, sequences, and procedures for the removal and
management of all capacitors found in Refrigerators and
Freezers, and the removal and disposal of compressor oil,
PCBs, and other Hazardous Materials from the time Contractor
collects Refrigerators and Freezers pursuant to this
Agreement.
6.5 Contractor shall document and maintain records for services
under this Agreement, or the Purchase order, incorporating
this Agreement, as follows:
6.5.1 A Customer Comment Tracking System for recording
customer inquiries, complaints, and positive
feedback.
6.5.2 Appliance Turn-in Order Form to collect data such
as customer name, address, home and work phone
numbers; utility account number, Refrigerator or
Freezer manufacturer's name; Refrigerator or
Freezer model and style; defrost type; color,
size, and estimated age of unit; location of
Refrigerator or Freezer within the residence;
amperage, final disposition code (which indicates
operating condition of Refrigerator or Freezer),
identification of units containing CFC-11; special
pick-up instructions (if applicable) and signature
of customer following customer certification that
the unit is a Second Refrigerator or Freezer in
continuous use for a minimum of six months and
that in the event refrigerator or freezer is
discovered not to be an Eligible Refrigerator or
Freezer as certified, customer acknowledges
liability to Edison for recycling costs.
6.5.3 Compilation of data in paragraphs 6.5.1 and 6.5.2
in electronic mode, employing the Microsoft EXCEL
software program.
6.6 Contractor shall conduct a customer survey, comparable to
Exhibit B, attached and incorporated by reference herein,
using a stratified purposeful sample of 5 to 20% of the 1998
Program Participants. The stratification and frequency of
the survey may be modified periodically by Edison, provided
that an Amendment to this Agreement or a separate agreement
shall be entered into if any such modification
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
necessitates unreasonable labor, as substantiated by
Contractor, requiring the negotiation of a charge separate
from the Recycling Charge. The purpose of the survey shall
be to elicit information such as appliance use, customer
demographics and customer satisfaction. Stratification and
frequency of survey shall be modified periodically as
determined by Edison provided modified survey is comparable
to Exhibit B.
6.7 Contractor and Edison shall establish and implement a
financial incentive service as follows:
6.7.1 The incentive to each 1998 Program Participant
will be a savings bond with a face value of Fifty
Dollars ($50.00) or, a check in the amount of
Twenty-Five Dollars ($25.00) or, an item with a
retail value of at least Twenty-Five dollars
($25.00) or, subject to availability, a 38
quart/36.1 liter Igloo(R)cooler ("Cooler") (the
"Cooler Promotion"). The savings bond, the check,
the retail item, and the Cooler are each referred
to individually as the "Incentive". Each 1998
Program Participant has a right to receive one
Incentive, at his or her discretion. The Parties
may agree in the future to increase the number of
Incentives a 1998 Program Participant may receive.
The Coolers shall be delivered to Contractor at a
location to be mutually agreed upon by the
Parties. Edison shall require the cooler
manufacturer to deliver the Coolers in either
individual boxes or shrink-wrapped with two
Coolers to a wrap in order to diminish the
possibility of damage to the Coolers. Edison shall
use its best efforts to have the manufacturer
deliver the Coolers in split lots with a minimum
of One Thousand (1,000) Coolers each. Contractor
shall provide Edison with a minimum of fifteen
(15) business days prior written notice in which
to deliver each Cooler lot to Contractor.
6.7.2. Contractor shall provide Edison with a weekly
listing for approval of Customers qualifying for
an Incentive. Customers qualifying for an
Incentive are 1998 Program Participants who turn
in an
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
Eligible Refrigerator or Freezer for which Edison
will pay a per-unit price as set forth in Section
10.1 of the Agreement.
6.7.3 Upon reimbursement by Edison to Contractor of the
Incentives under Section 9.4 of this Agreement,
Edison 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 1998 Program
Participants entitled to Incentives. Moreover,
upon Edison's payment to Contractor of the amounts
described above, Contractor shall be deemed the
holder of such property as far as the interests of
the 1998 Program Participants entitled thereto are
concerned for any and all purposes, including, but
not limited to, complying with the unclaimed
property laws of California and any and all other
applicable states. At no time after such
reimbursement to Contractor is Edison to assume
any responsibility for other disposition of such
amounts and shall not be entitled to the reversion
of any amounts so paid.
6.8 Contractor shall provide Edison with reports for the
services performed under this Agreement as follows:
6.8.1 A monthly report, provided no later than the 15th
day of the month, listing the number of
Refrigerators and Freezers processed through the
Recycling Center during the previous month and
containing size in cubic feet, year of
manufacture, style, and defrost type.
6.8.2 A quarterly report, presented within fifteen (15)
days of the new quarter, summarizing the monthly
report information from the previous quarter and
containing environmental data such as an estimated
breakdown of amount of refrigerants recovered;
number of pounds of capacitors removed; number and
size of CFC-11 units and amount of CFC-11
recovered; amount of sulfur dioxide recovered,
amount of compressor oil recycled, and weight of
metals and nonrecyclable materials sold for
shredding.
6.8.3 A quarterly report presented within fifteen (15)
days of the new quarter summarizing the monthly
Customer Comment Tracking System information in
Section 6.5.1.
6.8.4 By the 15th day of each month during the term of
this Agreement, Contractor shall provide Edison
with monthly aging
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
reports indicating the number of Refrigerators and
Freezers that were collected during the preceding
month and that were scheduled for collection from
customers during that month, the date of the
initial contact with the Customer, the date or
dates the appliance was scheduled for collection,
and the actual collection date.
6.8.5 Final summary reports covering all activity
requested in monthly reports plus information from
any incomplete month.
6.8.6 A final report by October 31 of all amounts paid
by Contractor in compliance with any unclaimed
property laws pursuant to Section 6.7.3, hereof.
6.8.7 Upon reasonable written request from an authorized
representative of Edison, special and nonrecurring
reports during course of the 1998 Program. Such
report content will be developed by the parties in
anticipation of requests from the CPUC, Edison
internal audits, or compilation of data relevant
to Rebuild LA 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.
6.8.8 Contractor shall modify its current computer
software program so that the Contractor's
Appliance Turn-In Order Form ("ATO") has a
disposition code which can be coded for each 1998
Program Participant indicating which Incentive was
selected by the 1998 Program Participant. In all
cases, when Contractor picks up an Eligible
Refrigerator or Eligible Freezer from a 1998
Program Participant, Contractor shall obtain the
1998 Program Participant's signature on the
Contractor's ATO. On a weekly basis, Contractor
shall prepare an invoice for Edison to evidence
the Cooler Fees due for Contractor's delivery of
Coolers under the Cooler Promotion and the costs,
if any, incurred by Contractor pursuant to Section
10.6 of the First Amendment ("Invoice"). The
Invoice shall include an ATO report showing the
delivery of Coolers during the billing period. All
Invoices will be paid pursuant to Section 10.5.3.
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
7. CUSTOMER AND REFRIGERATOR ELIGIBILITY
7.1 Customer eligibility for the 1998 Program shall depend on
the following:
7.1.1 Customer is a resident in the Edison service
territory and occupies a single-family residential
(Domestic Rate) or multi-unit dwelling or mobile
home.
7.1.2 Customer owns the Eligible Refrigerator or Freezer
or possesses written consent from the Refrigerator
or Freezer owner to turn in Eligible Refrigerator
or Freezer.
7.1.3 Customer turns in no more than two Eligible
Refrigerators and two Eligible Freezers per year
unless written Edison approval is obtained for any
additional Refrigerator or Freezer.
7.2 Commercial customers do not qualify for the 1998 Program.
7.3 Refrigerator and Freezer eligibility for the 1998 Program
shall depend on the following:
7.3.1 Refrigerator or Freezer must be capable of cooling
or freezing, or both, as applicable, at time of
collection.
7.3.2 Refrigerator or Freezer minimum size is 10 cubic
feet and maximum size is 25 cubic feet.
7.3.3 Refrigerator or Freezer is certified by the
customer to have been in use for a minimum of six
months as a Second Refrigerator or Freezer, as the
case may be.
7.4 Commercial refrigerators, ammonia-containing gas
refrigerators, commercial freezers, and room air
conditioners do not qualify for the 1998 Program.
8. OWNERSHIP AND CONFIDENTIALITY
8.1 All information disclosed by Edison during meetings or
negotiations with regard to the 1998 Program, and any
information contained in drawings, specifications, technical
reports, and data provided by Edison to Contractor during
performance of this Agreement shall be
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
held in confidence by Contractor and used only for the
performance of the Work pursuant to this Agreement.
8.2 Contractor, its employees, and any subcontractors shall not
disclose any 1998 Program or customer information to any
person other than Edison's personnel either during the term
of this Agreement or after its completion, without
Contractor having obtained the prior written consent of
Edison, except as provided by lawful court order or subpoena
and provided Contractor gives Edison advance written notice
of such order or subpoena. Prior to any approved disclosure,
persons receiving said information, including Contractor,
its employees, or third parties, must enter into a
nondisclosure agreement with Edison. Contractor agrees to
require its employees and subcontractors to execute a
nondisclosure agreement prior to performing any services
under this Agreement.
8.3 All material provided by Edison to Contractor during the
performance of this Agreement shall be returned to Edison
after this Agreement is terminated or at the request of
Edison. Contractor shall not duplicate any material
furnished by Edison without prior written approval from
Edison.
8.4 All information, material, and documents prepared or caused
to be prepared under this Agreement by Contractor shall
become the property of Edison. Such information, or
derivative information, materials, and documents, shall be
used by Contractor only for work done directly for Edison,
shall not be used in Contractor's general course of
business, and shall neither be disclosed nor revealed in any
way to a third party without the prior express written
consent of Edison.
8.5 All information disclosed by Contractor to Edison during
meetings or negotiations with regard to the 1998 Program,
and any information contained in drawings, specifications,
technical reports, and data provided by contractor to Edison
during performance of this Agreement, shall be held in
confidence by Edison, and used only in relation to the Work
pursuant to this Agreement.
8.6 Except as required by the CPUC, Edison, its employees and
any subcontractors of Edison shall not disclose any
confidential or proprietary information of Contractor
("Contractor's Confidential Information") to any person
other than Contractor's personnel, either during the term of
the Agreement, or after its completion, without having
obtained the prior written consent of Contractor. By way of
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
example, Contractor's Confidential Information shall
include, without limitation, Contractor's systems for oil
degassing, CFC recovery, CFC-11 recovery and Contractor's
computer software. Prior to any approved disclosure, persons
to receive Contractor's Confidential Information, including
Edison, its employees or any third-party, must enter into a
nondisclosure agreement with Contractor. Edison agrees to
require its employees to execute appropriate nondisclosure
agreements prior to any contact with, or evaluation of
Contractor's Confidential Information.
8.7 Edison 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:
8.7.1 Is not generally known to the public or in the
industry;
8.7.2 Has been treated by Contractor or any of its
subsidiaries as confidential or proprietary; and
8.7.3 Is of a competitive advantage to Contractor or any
of its subsidiaries and in the confidentiality of
which Contractor or any of its subsidiaries has a
legally protectable interest.
8.8 Contractor's Confidential Information which becomes
generally known to the public or in the industry, or, in the
confidentiality of which, Contractor and its subsidiaries
cease to have a legally protectable interest, shall cease to
be subject to the restrictions of this Paragraph 8.
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
9. COMMERCIAL TERMS
9.1 Payment
No payment shall be made under this Agreement until Edison
has received a signed "Acceptance Copy" of the Purchase
Order from Contractor. Edison shall pay to Contractor, as
full compensation for completing the Work, the prices set
forth in Exhibit A in accordance with the payment provisions
set forth in Sections 9.2 through 9.4.
9.2 Summary of Charges
9.2.1 Recycling Charge Edison shall pay to Contractor a
per-unit Recycling Charge for the greater of the
number of units collected, or specified per
Section 9.3.2 below, pursuant to this Agreement at
the price or prices set forth in Section 9.3
below. The Recycling Charge covers the scope of
work described in Section 6, including CFC-11
Recovery and excluding bond or incentive
purchasing and financing services.
9.2.2 Other Charges. All other costs for services shall
be negotiated between the parties and implemented
by an amendment to the Agreement.
9.2.3 Pursuant to the terms of Section 10.5.3, Edison
shall pay Contractor a fee of Two Dollars ($2.00)
("Cooler Fee") per Cooler for each Cooler
distributed to 1998 Program Participants. The
Cooler Fee shall compensate Contractor for the
storage, handling and delivery of the Coolers,
additional labor, and any and all other costs and
expenses in connection with the Cooler Promotion,
including any additional documentation and reports
that may be necessary or required as a result of
the Cooler Promotion. Edison shall not be
responsible for any other compensation or
reimbursement to Contractor as a result of the
Cooler Promotion except for the Cooler Fee.
9.2.4 Bond or Incentive Cost and Finance Charges. Edison
shall pay to Contractor bond and Incentive costs
and finance charges as specified in Section 9.4,
below.
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
9.3 Pricing Recycling Charge
9.3.1 The per-unit Recycling Charge to be paid by Edison
for the Contract Period shall be as set forth in
Exhibit A.
9.3.2 Edison's Specified Volume for the Contract Period
shall be 25,000 units.
9.3.3 If at the end of the Contract Period the Specified
Volume has not been achieved, Edison shall pay to
Contractor a per-unit Recycling Charge for each
unit in the shortfall.
9.3.3.1 The shortfall shall be determined by
subtracting from the Specified Volume
all units collected from Edison for the
Contract Period.
9.3.3.2 If this Agreement should be assigned to
the California Board for Energy
Efficiency ("Board") prior to September
1, 1998, the shortfall shall be prorated
by month and Edison shall pay 50% of the
per unit Recycling Charge for each unit
in the shortfall.
9.3.3.3 If this Agreement is assigned to the
Board prior to September 1, 1998, Edison
shall have no further payment
obligations to Contractor as of the
effective date of the assignment except
for any payments due under Section
9.3.3.2.
9.4 Pricing Bond or Incentive Costs and Finance Charges
9.4.1 Edison shall reimburse Contractor for the cost of
each bond or incentive payment distributed to 1998
Program Participants.
9.4.2 Edison shall pay to Contractor monthly interest at
the rate of three-quarter of one percent (0. 75%)
on the average monthly balance of the outstanding
bond or incentive costs.
9.5 Miscellaneous
Contractor agrees that any agreement it has, or in which it
may enter with other utilities or agencies for a recycling
program, shall not detrimentally affect Contractor's
services under this Agreement.
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
10. BILLING
10.1 Contractor shall submit a weekly invoice reflecting the
per-unit charge for the refrigerators and freezers
collected, processed, and recycled, and for the purchase and
approval of U.S. Savings Bonds and incentives. Contractor
shall apply a per-unit charge on units that have been
disabled and only for the following transactions:
10.1.1 Collection of an Eligible Refrigerator or Freezer.
10.1.2 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.
10.1.3 Collection of an oversized Eligible Refrigerator
or Freezer that requires additional trips,
personnel, or equipment to execute removal.
Additional services for removal of an oversized
Eligible Refrigerator or Freezer shall be charged
as a single appointment with no extra charge for
said additional services.
10.1.4 Collection of an Eligible Refrigerator or Freezer
that could not be inspected for eligibility
confirmation.
10.2 Contractor shall submit a final invoice for the Contract
Period in hard copy and in electronic format acceptable to
Edison.
10.3 Contractor shall apply a 25% per unit discount to the
Recycling Charge to any additional units when two or more
refrigerators or freezers are removed during a single
collection appointment from Customer's residence. Said
discount shall be clearly documented and identified in
Contractor's invoice.
10.4 Contractor shall submit a weekly invoice for the purchase
price of the bonds and for other incentive payments and a
monthly invoice for the interest charge identified in
paragraph 9.5.
10.5 Edison shall make payment (less any unsubstantiated or
incorrect charge):
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
10.5.1 For bond and check incentive services, within
thirty days of receipt of an Invoice by Edison's
Accounts Payable Department.
10.5.2 Of Recycling Fee, within thirty days of receipt of
an Invoice from Contractor approved by Edison..
10.5.3 For Cooler Fees within thirty days of receipt of
an Invoice from Contractor approved by Edison.
10.6 Upon receipt of each shipment of the Coolers, Contractor
shall inspect the shipment for any damaged or defective
Coolers. Contractor shall return any damaged and/or
defective Cooler directly to the manufacturer for a
replacement Cooler. Pursuant to Sections 6.8.8 and 10.5.3,
Edison shall reimburse Contractor for all costs associated
with the return of any such damaged and/or defective
Coolers.
10.7 On a weekly basis, Contractor shall provide Edison with an
unaudited accounting of Coolers remaining in Contractor's
inventory of Coolers. At the end of the Cooler Promotion,
Contractor shall complete and provide Edison with a
reconciliation to account for the Coolers that were
defective, damaged, or stolen. Contractor shall reimburse
Edison for any and all Coolers stolen from Contractor after
delivery to Contractor.
10.8 If after a Cooler is delivered by Contractor any 1998
Program Participant alleges that a Cooler is damaged or
defective, Edison shall replace such defective and/or
damaged Cooler. Edison shall be responsible for the
replacement of the such damaged and/or defective Cooler,
including, but not limited to, the deliver of a new Cooler
to the 1998 Program Participant. If the damage to a Cooler
is the result of any action by Contractor, Edison shall be
relieved of any obligation to pay Contractor a Cooler Fee
for the damaged Cooler.
11. RIGHT TO AUDIT
Edison, or its Authorized Representative, shall have the right and
free access, at any reasonable time during normal business hours, to
examine,
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
audit, and copy all Contractor's records and books as related to
Contractor's obligations under this Agreement, including, but not
limited to, verification of costs to Edison, as claimed by Contractor.
12. CHANGES
Changes to this Agreement shall be made by mutual agreement of the
Parties through a written amendment to the Agreement, which shall be
incorporated into the Purchase order by Change Order.
13. PERMITS, CODES, AND STATUTES
13.1 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.
13.2 Contractor shall comply with all applicable local, state,
and federal safety and health laws in effect an the date of
this Agreement, including, but not limited to, EPA,
California EPA, RCRA, the Occupational Safety and Health Act
of 1970 (OSHA), and all standards, rules, regulations, and
orders issued pursuant to such local, state, and federal
safety and health laws. Should any such law, rule, or
regulation be enacted or promulgated subsequent to the date
of this Agreement, which renders Contractor's performance
impractical, Contractor and Edison shall, in good faith,
negotiate an amendment to this Agreement reasonably
compensating Contractor for its additional costs.
14. WARRANTY
Contractor warrants to Edison 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
Refrigerators
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
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.
15. TITLE
15.1 Title to the Hazardous Materials shall pass to Contractor
when Contractor collects refrigerators and freezers from
customers.
15.2 Title of collected Refrigerators and Freezers shall pass to
Contractor.
16. INSURANCE
16.1 Without limiting Contractor's liability to Edison, including
the requirements of Section 18.0 Indemnity, Contractor shall
maintain For the work, and shall require that each
Subcontractor of the first tier maintain, at all times
during the work and at its own expense, valid and
collectible insurance as described below. This insurance
shall not be terminated, expire, not he materially altered,
except on thirty days prior written notice to Edison.
Contractor shall furnish Edison with certificates of
insurance an forms acceptable to Edison and shall require
each Subcontractor of the first tier to furnish Contractor
with certificates of insurance, as evidence that policies do
provide the required coverages and limits of insurance
listed below. Such certificates shall be furnished to
Edison's 1998 Program Manager by Contractor upon receipt of
the Purchase Order, and by Subcontractor for the first tier
upon receipt of its subcontract, but in any event prior to
start of its portion of the Work. Any other insurance
carried by Edison, 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 Edison,
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
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
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
Edison, its officers, agents, and employees, and
additional insureds; (b) be primary for all
purposes; and (c) contain standard cross-liability
provisions.
(iii) Automobile Bodily Injury and Property Damage
Liability Insurance with a combined single limit
of not less than $3,000,000 for each occurrence.
Such insurance shall cover liability arising out
of the use by Contractor and Subcontractors of
owned, non owned and hired automobiles in the
performance of the Work. As used herein, the term
"automobile" means vehicles licensed or required
to be licensed under the Vehicle Code of the state
in which the Work is performed. Such insurance
shall acknowledge Edison as an additional insured
and be primary for all purposes.
(iv) Environmental Impairment Expense Insurance with a
combined single limit of not less than $5,000,000
for each occurrence and overall limits of
$10,000,000. Such insurance shall provide coverage
for necessary costs or expense of removing,
cleaning-up, transporting, nullifying, and
rendering ineffective, or any of them, any
substance which has caused environmental
impairment and such insurance shall contain no
exclusions for non-sudden and/or non-accidental
discharge, release or escape of polluting
materials. Such insurance shall acknowledge Edison
as an additional insured and be primary for all
purposes.
Contractor shall report immediately to Edison 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 16.0, Contractor shall,
at its own cost, defend, indemnify, and hold
harmless Edison, 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
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
damage to any property to the extent that Edison
would have been protected had Contractor complied
with all of the provisions of this Section.
17. RESERVED.
18. INDEMNITY
18.1 Contractor shall, at its own cost, indemnify, defend,
reimburse, and hold harmless Edison, its officers,
directors, employees, agents, assigns, and successors in
interest, from and against any and all liability, damages,
losses, claims, suits, demands, actions, causes of action,
costs, expenses, including attorney's fees and expenses, or
any of them resulting from the death or injury to any person
or damage to or destruction of any property caused by
Contractor, Subcontractors, and employees, officers and
agents of either Contractor or Subcontractors, or any of
them, and arising out of or attributable to the performance
or nonperformance of Contractor's obligations under this
Agreement and including, without limitation, failure to
comply fully with every federal, state, or local law,
statute, regulation, rule, ordinance, or government
directive which directly or indirectly regulates or affects
the handling, storage, recycling, or disposal of the
Hazardous Materials to be managed by Contractor hereunder.
In all cases of death or injury to employees, officers or
agents of either Contractor or Subcontractors, whether or
not caused by Contractor, Edison shall be indemnified by
Contractor for any and all liability except to the extent
such death or injury results -from the negligence of Edison.
18.2 Contractor shall, at its own cost, indemnify, defend,
reimburse, and hold harmless Edison, its officers,
directors, employees, and agents, assigns, and successors in
interest, from and against any and all liability imposed
upon, or to he imposed upon Edison, under any law imposing
liability for the environmental clean-up of the Hazardous
Materials at any location (other than Edison'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.
18.3 The indemnities set forth in this Section 18.0 shall not be
limited by the insurance requirements set forth in Section
16.0.
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
19. TERM AND TERMINATION
19.1 This Agreement shall commence on January 1, 1998 and shall
continue in effect until September 30, 1998, or until
Contractor has picked up all units called in prior to
September 30, 1998, whichever is later. This Agreement may
be extended as agreed to in writing by the Parties.
19.2 Either Party may terminate the Agreement for cause by 60
days advance written notice, and failure to cure, to the
other Party. If the default has not been cured within said
time period, the non-defaulting party may declare this
Agreement terminated, effective the last day of said notice
period. Contractor shall be paid for its services rendered
to the date of said termination with all required specified
volumes prorated to the date of termination.
19.3 Edison shall have the right to terminate this Agreement by
30 days advance written notice to Contractor upon CPUC
mandate, or upon depletion of the amount of funding
authorized by the CPUC for the Contract Period. In the event
the Agreement is terminated upon CPUC mandate, Edison shall
pay Contractor all amounts owed under the Agreement as of 30
days after Edison's written notice to Contractor of the
CPUC's mandate (the "Termination Date"). In such event,
Edison shall only be obligated to pay contractor for such
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 but
which would otherwise be required to be paid for as units
comprising Edison's Specified Volume.
19.4 In the event of termination pursuant to this Section 19,
Contractor and Edison shall work cooperatively to
facilitate the termination of the 1998 Program.
19.5 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 effect the 1998 Program or
which addresses the 1998 Program in any manner.
20. SUBCONTRACTS
20.1 Contractor shall contractually require each Subcontractor of
the first tier providing service in connection with the Work
to be bound by
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
general terms and conditions protecting Edison which are
equivalent to the terms and conditions of this Agreement.
20.2 Contractor shall, at all times, be responsible for the work,
and acts and omissions, of Subcontractors and persons
directly or indirectly employed by them for services in
connection with the Work. The Purchase Order and this
Agreement shall not constitute a contractual relationship
between any Subcontractor and Edison nor any obligation for
payment to any Subcontractor.
21. CALIFORNIA PUBLIC UTILITIES COMMISSION
This Agreement and the Purchase Order incorporating 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.
22. NON-WAIVER
None of the provisions of the Agreement shall be considered waived by
either Party unless such waiver is specifically stated in writing.
23. ASSIGNMENT
Edison may be required to assign its rights, duties and obligations
under this Agreement to the California Board for Energy Efficiency
("Board") or, at the Board's discretion, to the Board's Administrator.
Contractor hereby consents to such assignment. Other than Edison's
assignment to the Board or the Board's administrator, neither Party
shall delegate or assign this Agreement or any part or interest
thereof, without the prior written consent of the other Party, and any
assignment without such consent shall be void and of no effect.
24. 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.
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
25. GOVERNING LAW
The contract shall be interpreted, governed, and construed under the
laws of the State of California as if executed and to be performed
wholly within the State of California.
26. SECTION HEADINGS
Section headings appearing in this Agreement are for convenience only
and shall not be construed as interpretations of text.
27. SURVIVAL
Notwithstanding completion or termination of the Work, of this
Agreement, any amendment to the Agreement, or of any Purchase Order or
Change Order, the Parties shall continue to be bound by the provisions
of this Agreement and any Purchase order incorporating this Agreement,
Amendment to this Agreement and Change Orders, which by their nature
shall survive such completion or termination. Such provisions shall
include, but not be limited to, Contractor's indemnity protecting
Edison from any liability for environmental clean up as provided in
Section 18 of this Agreement.
28. NONRELIANCE
Neither Party has relied upon any representation, warranty,
projection, estimate or other communication from the other not
specifically so identified in this Agreement.
29. 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.
SOUTHERN CALIFORNIA EDISON COMPANY'S 1998 REFRIGERATOR RECYCLING
AND HAZARDOUS MATERIALS DISPOSAL AGREEMENT
30. COOPERATION
Each of the parties agrees to cooperate with the other in whatever
manner reasonably required to facilitate such parties' successful
completion of the Agreement.
31. ENTIRE AGREEMENT
This Agreement contains the entire agreement and understanding between
the Parties and merges and supersedes all prior representations and
discussions pertaining to the Agreement, including Contractor's
proposal. Any changes, exceptions, or different terms and conditions
proposed by Contractor, or contained in Contractor's acknowledgment of
the Agreement, or Change Order, are hereby rejected unless expressly
stated in the Agreement or incorporated by a Change Order.
CONTRACTOR:
APPLIANCE RECYCLING CENTERS SOUTHERN CALIFORNIA
OF AMERICA. INC. EDISON COMPANY
BY: By:
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Its: Its:
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Dated as of: Dated as of:
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