PROFESSIONAL ENGAGEMENT AGREEMENT GENERAL TERMS BETWEEN CALPINE CORPORATION AND PA CONSULTING GROUP, INC. Calpine Corporation Telephone (713) 830-2000
EXHIBIT
10.2
PROFESSIONAL
ENGAGEMENT AGREEMENT
GENERAL
TERMS
BETWEEN
CALPINE
CORPORATION
AND
PA
CONSULTING GROUP, INC.
Calpine
Corporation
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone
(▇▇▇) ▇▇▇-▇▇▇▇
PROFESSIONAL
ENGAGEMENT AGREEMENT
GENERAL
TERMS
THIS
PROFESSIONAL ENGAGEMENT AGREEMENT (“Agreement”) is made and entered into as of
the 2nd day of May, 2008 (“Effective Date”) between Calpine Corporation, a
Delaware corporation ("CALPINE"), with a principal office located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; and PA Consulting Group, Inc, a New
Jersey corporation, with an office located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("PROFESSIONAL"). CALPINE and PROFESSIONAL may be collectively
referred to as "the Parties" or individually as a "Party." In consideration of
the mutual agreements herein contained, it is agreed as follows:
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1.
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ENGAGEMENT,
SERVICES AND LIMITATION ON
AUTHORITY
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1.1.
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ENGAGEMENT
of PROFESSIONAL shall be made pursuant to the general terms set forth in
this PROFESSIONAL ENGAGEMENT AGREEMENT – GENERAL
TERMS.
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1.2.
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PROFESSIONAL
agrees to perform the services described in each “Statement of
Work/Work-Stream” or Addendum No. 1 (hereafter collectively the “Statement
of Work”), and any attachments thereto, entered into and executed by the
Parties from time to time (hereinafter, collectively referred to as the
"Services"). Services under this Agreement are limited to Services
provided by PROFESSIONAL’s energy group. Each Statement of Work shall: (i)
be separately numbered; and, (ii) contain, at minimum, the name of
contracting Parties, date of this Agreement, date of Statement of Work,
description of Services to be performed, date when Services are to be
performed or delivered, and rate of compensation payable to PROFESSIONAL
for the Services. PROFESSIONAL will determine the method, details and
means of performing the Services. Each Statement of Work is incorporated
herein as if fully set forth herein and each Statement of Work is subject
to all the terms and provisions hereof. Notwithstanding the foregoing, if
any terms or conditions in an applicable Statement of Work (including
Addendum No. 1) are inconsistent or in conflict with the Agreement, the
Statement of Work (or Addendum No. 1 as the case may be) shall
control. A sample Statement of Work is attached to this
Agreement as Exhibit A.
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1.3.
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PROFESSIONAL
shall have no right, power or authority to control or direct the
performance or activities of any officer, employee or agent of CALPINE, or
to enter into any contract, agreement or arrangement or incur any
obligation or liability on behalf of or for the account of CALPINE, unless
stated otherwise in the Statement of
Work.
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1.4.
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CALPINE
will designate an individual to be responsible for the administration of
the terms of this Agreement and all Statements of
Work
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pursuant
to which the PROFESSIONAL shall provide services to CALPINE. The
individual designated by CALPINE will be referred to as the “Calpine Contact
Person” and will be the person with whom the PROFESSIONAL should communicate
regarding any matters related to the provision of services, payment of fees and
expenses and any other matters related to the PROFESSIONAL’s relationship with
CALPINE.
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1.5
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The
“Calpine Contract Person” is:
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Name
▇▇▇▇▇▇ ▇. May
Position
CEO
Address
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
Office
Phone (▇▇▇) ▇▇▇-▇▇▇▇
Email
▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
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1.6
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CALPINE
will provide such facilities, materials, information and resources for the
performance of the Services as reasonably requested by PROFESSIONAL, and
will liaise with PROFESSIONAL as appropriate during the performance of the
Services and shall respond promptly to PROFESSIONAL’s reasonable requests
for consultation, information, decisions and
approvals.
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2.
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TERM
AND TERMINATION
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2.1
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This
Agreement shall be for a term of one (1) year from the date first
specified above, unless terminated earlier pursuant to this Agreement or
extended by a mutual written agreement executed by both Parties. Provided
that for any Statement of Work executed during the one (1) year term of
this Agreement, should the performance of the Services extend beyond the
one (1) year term of this Agreement, then the terms of this Agreement
shall be extended solely for and until completion of the
Services.
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2.2
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Either
Party may terminate this Agreement (or any Statement of Work) upon fifteen
(15) days’ prior written notice in the event of substantial failure by the
other Party to perform in accordance with the terms of this Agreement (or
such Statements of Work) through no fault of the terminating Party; provided that
such notice shall specify in reasonable detail the nature of such
substantial failure of performance; and further provided that
if during such fifteen-day period such other Party substantially
remedies such performance, this Agreement (or such Statement of Work)
shall not be terminated. However, the non-performing Party
shall not be relieved of the obligation to complete such performance or
from liability for any damages caused to the other Party by such failure
of performance. This Agreement (including any or
all
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Statement
of Work) may also be terminated by CALPINE for its convenience without penalty
or termination fee, but only upon fifteen (15) days’ prior written notice to
PROFESSIONAL and CALPINE shall pay PROFESSIONAL for all authorized expenses and
work performed under any terminated Statement of Work through the date of
termination.
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2.3
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Upon
receipt of notice of termination from CALPINE, unless otherwise permitted
by the foregoing provisions or otherwise instructed within the body of
such notice, PROFESSIONAL shall discontinue its Services, and as soon as
reasonably possible thereafter, shall deliver to CALPINE all data,
documents, drawings, reports, files, estimates, summaries and such other
information and materials, as may have been accumulated by PROFESSIONAL in
the performance of this Contract, whether completed or in
process.
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3.
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COMPENSATION
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3.1
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Compensation
to PROFESSIONAL for the Services rendered pursuant to this agreement or
related Statement of Work shall be calculated as described in the
Statement of Work covering such Services and shall be paid in United
States dollars. No expenses of PROFESSIONAL shall be reimbursable by
CALPINE unless the obligation and manner of reimbursement is expressly set
forth in such Statement of Work. The compensation provided for in each
Statement of Work shall be the only payment to which PROFESSIONAL shall be
entitled for the Services covered by such Statement of
Work.
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3.2
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PROFESSIONAL
shall invoice CALPINE for services rendered pursuant to this agreement and
each related Statement of Work on the basis set out in the
applicable Statement of Work. CALPINE will pay the amounts
properly invoiced pursuant to the terms of this agreement and each related
Statement of Work within thirty (30) days of invoice
receipt. All invoices will be submitted in an electronic format
as specified by CALPINE. Overdue invoice are subject to simple interest at
the rate of one-half of one percent per
month.
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3.3
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Invoices
and communications regarding invoices shall be sent directly to the
Calpine Contact Person identified in this agreement and in each Statement
of Work, unless otherwise directed by said Statement of
Work.
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3.4
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CALPINE
reserves the right to audit upon reasonable notice and at reasonable times
all records of PROFESSIONAL pertaining to the invoiced fees, costs and
expenses of the Services provided to CALPINE during and for a two (2) year
period following the term of this Agreement. Any such audit will be
conducted in a manner that minimizes disruption to Professional’s business
operations.
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4.
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PROFESSIONAL
STANDARDS
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PROFESSIONAL
assumes complete professional and technical responsibility for performance of
all Services and will provide Services in a good and ▇▇▇▇▇▇▇ like
manner, in accordance with recognized prudent professional standards applicable
in the industry of PROFESSIONAL, and in accordance with all applicable laws,
regulations, standards and codes. PROFESSIONAL warrants that all Services and
deliverables will conform to agreed specifications. If
within 90 days following completion of the Services or provision of
the deliverables, CALPINE notifies PROFESSIONAL in wiring that certain SERVICES
or deliverables do not conform to agreed specifications, PROFESSIONAL
shall promptly re-perform such Services or correct defective deliverables,
without charge to CALPINE.
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5.
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INDEPENDENT
CONTRACTOR
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5.1.
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PROFESSIONAL
enters into this Agreement as an independent contractor. Under no
circumstances shall PROFESSIONAL look to CALPINE as its employer, nor as a
partner, agent or principal. PROFESSIONAL shall not be entitled to any
benefits accorded to CALPINE's employees, including, without limitation,
workers compensation, disability insurance, and vacation or sick pay.
PROFESSIONAL shall be responsible for providing, at its expense and in its
name, disability, workers' compensation or other insurance as well as
licenses and permits usual or necessary for conducting its Services
hereunder.
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5.2.
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PROFESSIONAL
shall pay, when and as due, any and all taxes, duties and other similar
charges assessed or incurred as a result of PROFESSIONAL’s Services or
compensation hereunder, including estimated taxes. PROFESSIONAL hereby
agrees to indemnify CALPINE for any third party claims, losses, costs,
fees, liabilities, damages or injuries suffered by CALPINE arising out of
PROFESSIONAL’s breach of this Section or arising out of a determination by
a court or agency that PROFESSIONAL or PROFESSIONAL’s employees are not
independent contractors. CALPINE is hereby authorized to make all
withholding, value added tax or similar payments required by law as a
deduction against the amount of compensation paid to PROFESSIONAL
hereunder.
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5.3.
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PROFESSIONAL
represents that he or she has the qualifications and ability to perform
the Services in a professional manner, without the advice, control or
supervision of CALPINE. PROFESSIONAL shall have sole discretion
and control of the Services and the manner in which they are
performed. PROFESSIONAL agrees to follow workplace standards
that adhere to the CALPINE Code of Conduct promptly upon receipt of a
written copy of such CALPINE Code of
Conduct.
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6.
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PROFESSIONAL
INSURANCE
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6.1. PROFESSIONALS
providing Services for CALPINE are expected to maintain insurance coverage that
is reasonable and prudent in relation to the Services provided by
PROFESSIONAL. If PROFESSIONAL does not have coverage or
if coverage is cancelled and not immediately replaced with comparable coverage,
PROFESSIONAL must immediately report this to the Calpine Contact Person.
However, PROFESSIONAL shall at a minimum maintain Workers Compensation insurance
with statutory limits with coverage as required under laws and regulations,
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Employer’s
Liability insurance with limits of not less than $1,000,000. Such policy shall
include a waiver of subrogation in favor of CALPINE.
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7.
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MUTUAL
INDEMNITY AND LIMITATION OF
LIABILITY
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7.1.
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CALPINE
and PROFESSIONAL (the Indemnifying Party) agree to indemnify, defend and
hold harmless the other and its affiliates, and all of their
employees, officers, directors, shareholders, and joint ventures (the
Indemnified Party) from and against any and all third party claims,
demands, losses, damages, liabilities, expenses, obligations, judgments,
recoveries and deficiencies (Losses), arising out of or due to the
negligent acts or omissions or willful misconduct of the Indemnifying
Party excluding any portion of such Losses which are directly attributable
to the Indemnified Party’s negligent acts or omissions or willful
misconduct. For the avoidance of doubt, “third party” does not include the
Parties or their affiliates, directors, officers or
employees. The Indemnifying Party’s obligation to indemnify
hereunder is predicated upon the Indemnified Party (a) giving prompt
written notice of any Loss, (b) giving the Indemnifying Party the
opportunity to assume sole control over the defense and settlement, if
applicable, of the Loss, and (c) providing, at the Indemnifying Party’s
sole expense, all reasonably requested and relevant information,
assistance and authority to enable the Indemnifying Party to perform it
obligations hereunder. The Indemnifying Party agrees not to settle any
Loss without the Indemnified Party’s written consent, which shall not be
unreasonably withheld.
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7.2
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In
addition, CALPINE will indemnify PROFESSIONAL for the costs and expenses
that PROFESSIONAL reasonably incurs to produce documents and electronic
records, and to provide oral or written testimony, in response to
discovery requests related to any of the Services PROFESSIONAL provides
from January 31, 2008 through the term of this Agreement. For
purposes of clarity, discovery requests include subpoenas in civil or
criminal suits, as well as orders from administrative agencies in any
other type of proceeding or investigation; and costs and expenses include
the cost of searching archived records, the cost of production, and the
cost of retaining outside counsel. This section does not apply
to any suit by CALPINE against
PROFESSIONAL.
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7.3.
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Any
statutory limitations in effect now or hereafter which affect the validity
or enforceability of the indemnification provisions in this Agreement are
made a part hereof in the respective jurisdiction where the statute
applies and any such statutory limitations shall operate to amend the
indemnity provisions hereof to the minimum extent necessary to bring such
provisions into conformity with the requirements of the statute. So
modified, the indemnity provisions of this Agreement shall continue in
full force and effect.
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7.3.
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IN
NO EVENT SHALL CALPINE OR PROFESSIONAL BE LIABLE FOR CONSEQUENTIAL,
SPECIAL, INDIRECT OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT WHETHER IN AN ACTION BASED ON CONTRACT,
TORT OR ANY OTHER LEGAL THEORY EVEN IF THE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
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7.4
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For
each Statement of Work, except for third party indemnity claims pursuant
to Section 7.1 which shall not be limited as to a dollar amount,
PROFESSIONAL agrees to indemnify and hold harmless CALPINE under the
following terms and conditions:
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(i)
without limitation, for death or personal injury to any person due to its
negligence or the negligence of its employees;
(ii) for
physical damage to or loss of the CALPINE’s tangible property, including loss of
data, if the damage or loss is due to PROFESSIONAL’s negligence or breach of
contract, in the amount of $750,000 for any one incident or series of connected
incidents, with an aggregated cap in the amount of $3,000,000 per statement of
work; and
(iii) for
all other causes of action, PROFESSIONAL’s total liability arising out of or in
connection with the Agreement shall not exceed in aggregate 150% of the fees
paid by the CALPINE.
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8.
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INTELLECTUAL
PROPERTY AND CONFIDENTIALITY
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8.1.
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The
Parties may either receive or disclose Confidential Information under this
Agreement and may therefore be referred to either as the "Recipient" or
the "Disclosing Party" as the case may be. Recipients of Confidential
Information promise to protect and maintain the confidentiality nature of
the information they receive. “Confidential Information” means
information that is marked or otherwise identified as confidential, or
information that can reasonably be understood to be confidential, but
excludes:
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(i)
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Information
that is known Recipient, without restriction, prior to obtaining the same
from Disclosing Party; or
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(ii)
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Information
that is in the public domain at the time of disclosure;
or
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(iii)
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Information
that is rightfully obtained by Recipient from a third party who did not
receive the same, directly or indirectly, from Disclosing Party, and who
has no obligation of confidentiality with respect thereto;
or
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(iv)
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Information
that is independently developed without use of Disclosing Party’s
information.
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Either
Party may disclose Confidential Information to its employees, subcontractors and
advisors, and to the employees, subcontractors and advisors of affiliated
companies, on a need-to-know basis, who are in all cases contractually obliged
to keep the information confidential. Neither Party shall acquire any
intellectual property rights in any Confidential Information disclosed by the
other.
8.2. Subject
to 8.1 above, PROFESSIONAL further agrees that it will not, without the prior
written consent of CALPINE, disclose to any third party any of such Confidential
Information developed or obtained by PROFESSIONAL in the performance of this
Agreement. If so requested by CALPINE, PROFESSIONAL further agrees to require
its employees to execute a nondisclosure agreement prior to performing Services
under this Agreement.
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8.3.
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It
shall not be a breach of the confidentiality obligations hereof for
Recipient to disclose Confidential Information where, but only to the
extent that, such disclosure is required by law or applicable legal
process, provided in such case the Recipient shall (i) give the earliest
notice possible to Disclosing Party that such disclosure is or may be
required, and (ii) cooperate in protecting such confidential or
proprietary nature of the Confidential Information which must so be
disclosed.
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8.4
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Intellectual
Property (“IP”) owned or licensed by a Party on the date a Statement of
Work is fully signed, as well as modifications or adaptations to that IP
made during the performance of any Services (“Background IP”), will remain
the property of that Party.
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8.5
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Unless
otherwise provided IP developed by PROFESSIONAL in the course of
performing the Services (“Foreground IP”) will be owned by PROFESSIONAL.
Upon completion of all phases of the Services and on receipt of payment in
full by PROFESSIONAL, PROFESSIONAL grants CALPINE a royalty-free,
non-exclusive, world-wide licence to (i) use the Foreground IP for the
purposes set out in the relevant Statement of
Work,
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and (ii)
use PROFESSIONAL’s Background IP to the extent required for CALPINE to fully
utilize the Services and any deliverables provided by PROFESSIONAL.
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8.6
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Notwithstanding
anything to the contrary in this Agreement, the Parties and their
employees providing Services shall be free to use Residuals for any
purpose, including use in development, marking and provision of
their own services and products to other third parties. “Residuals” means
the Confidential Information disclosed under this Agreement that may be
retained in intangible form (e.g., not in written or other documentary
form, including in any electronic media) by the Recipient’s personnel
having had access to that Confidential Information in connection with
providing the services so long as the Recipient’s personnel do not
intentionally retain Confidential Information for the purpose of its
reuse.
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9.
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DISPUTE
RESOLUTION
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9.1.
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Dispute
Resolution.
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9.1.1
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General
Provisions. The Parties shall attempt to resolve
disputes of any kind or nature (“Disputes”) by utilizing the provisions of
Section 9.1.2 prior to instituting legal
action.
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9.1.2
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Referral to Senior
Management.
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9.1.2.1
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Upon
the occurrence of a Dispute, either Party may deliver a notice to the
other Party requesting that the Dispute be referred to the senior
management of the Parties for resolution. Any such notice shall
include the names of the senior management of the Party nominated (such
senior management shall be limited to 3 individuals) to attempt to resolve
the Dispute, and a schedule of their availability to meet and confer
during the thirty (30) day period following the date of the
notice. Any such notice shall be delivered within a reasonable
time after the Dispute arises, but in no event shall it be delivered less
than sixty (60) days before the institution of legal or equitable
proceedings based on such Dispute would be barred by any applicable
statute of limitations.
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9.1.2.2
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Within
seven (7) days after receipt of a notice pursuant to Clause 9.1.2.1 of
this Section, the other Party shall provide a reply to the requesting
Party indicating the names of the senior management of the Party nominated
to meet and confer to resolve the Dispute, and a schedule of their
availability during the remainder of the thirty (30)
day
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period
following the date of the notice of referral to senior management.
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9.1.2.3
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Within
ten (10) days after notice is given pursuant to clause 9.1.2.1, and during
the remainder of the thirty (30) day period following delivery of the
notice, the nominated members of the senior management of the Parties
shall meet as frequently as reasonably possible, and shall attempt in good
faith to resolve the Dispute.
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9.1.2.4
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Senior
Management shall include employees of the Parties, but not outside
counsel, experts or other third
parties.
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10.
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JURISDICTION,
COMPLIANCE WITH LAW AND FORUM
SELECTION
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10.1
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PROFESSIONAL
shall, and shall cause PROFESSIONAL’s affiliates to, comply with all laws
applicable to its or their performance under this Agreement, including,
without limitation, laws dealing with improper or illegal payments, gifts
or gratuities. PROFESSIONAL shall not pay, promise to pay, or authorize
the payment of any money or other thing of value, directly or indirectly,
to any person (whether a government official or private individual) for
the purpose of inducing any government official, political party or
official thereof to illegally or improperly assist in obtaining or
retaining business for, or to take any other action favorable to, CALPINE,
and shall take all reasonable steps to assure that all agents and
representatives engaged by PROFESSIONAL comply with all laws applicable to
the activities and obligations of PROFESSIONAL hereunder, including laws
dealing with improper or illegal payments as described
above.
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10.2
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This
Agreement and any Statement of Work (including Addendum No. 1) will be
governed by and construed in accordance with the laws of the State of
Delaware (without giving effect to principles of conflicts of
laws). The Parties hereto agree that all actions or proceedings
arising in connection with this Agreement and any and all
Statements of Work, or any attachments thereto, shall be conducted, tried
and litigated exclusively in the State and Federal courts located in the
County of ▇▇▇▇▇▇, State of Texas. The aforementioned choice of venue is
intended by the Parties to be mandatory and not permissive in nature,
thereby precluding the possibility of litigation between the Parties with
respect to or arising out of this Agreement in any jurisdiction other than
that specified in this paragraph. Each Party hereby waives any right it
may have to assert the doctrine of forum non conveniens or similar
doctrine or to object to venue with respect to any proceeding brought in
accordance with this paragraph, and stipulates that the State and Federal
courts located in the County of ▇▇▇▇▇▇, State of Texas shall have in
personam jurisdiction and venue over each of them for the purpose of
litigating any dispute, controversy,
or
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proceeding
arising out of or related to this Agreement. Each Party hereby authorizes and
accepts service of process sufficient for personal jurisdiction in any action
against it as contemplated by this paragraph by registered or certified mail,
return receipt requested, postage prepaid, to its address for the giving of
notices as set forth in this Agreement. Any final judgment rendered against a
Party in any action or proceeding shall be conclusive as to the subject of such
final judgment and may be enforced in other jurisdictions in any manner provided
by law.
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11.
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PUBLICATION
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PROFESSIONAL
shall make no media releases, public announcements and other disclosures
relating to this Agreement or related Statement of Work or the subject matter
hereof, including promotional or marketing material, but excluding announcements
intended solely for internal distribution or to meet legal or regulatory
requirements, without prior written approval from the CALPINE CORPORATE
COMMUNICATIONS DEPARTMENT, provided however, it is agreed by the Parties that
PROFESSIONAL shall be permitted, without the approval of CALPINE, to state in
materials that PROFESSIONAL provides to prospective clients and or employers
that PROFESSIONAL provided services to CALPINE and the nature of the services
provided.
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12.
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SURVIVAL
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In the
event of expiration or termination of this Agreement for any reason whatsoever,
Sections 2.2 (last two sentences), 2.3, 3, 5.2, 7.4, 8, 9.1, 10.2, 11, 12 and 20
of this Agreement and those section identified in Addendum No. 1 shall survive
such expiration or termination and remain in full force and effect in accordance
with their terms. The rights and obligations of the Parties which by
their nature are normally intended to survive the termination or completion of
any Statement of Work shall remain in full force and effect following
termination of this Agreement for any reason.
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13.
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ENTIRE
AGREEMENT AND AMENDMENTS
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13.1
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This
Agreement, together with any and all Statements of Work entered into
pursuant to this Agreement, contain the entire Agreement between the
Parties hereto with respect to the subject matter hereof. No amendment to
this Agreement or to any Statement of Work shall be binding upon either
Party hereto, unless it is in writing and executed on behalf of each Party
hereto by a duly authorized representative and expressly specified as
such. This Agreement supersedes all previous Agreements, whether written
or
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oral,
including all prior agreements entered into between the Parties relating to the
subject matter hereunder.
14. ASSIGNMENT
AND SUBCONTRACTING
PROFESSIONAL
shall not have the right to assign this Agreement or subcontract any of the
Services without the prior written consent of CALPINE. PROFESSIONAL
shall supervise all work subcontracted by PROFESSIONAL in performing the
Services and shall be responsible for all work performed by a subcontractor as
if PROFESSIONAL itself had performed such work. The assignment or subcontracting
of any work to subcontractors shall not relieve PROFESSIONAL from any of its
obligations under this Contract with respect to the Services. CALPINE
may assign its rights and obligations hereunder to an affiliate or another
entity involved in the subject matter of the Services or in connection with any
merger, acquisition or similar event. CALPINE shall provide
PROFESSIONAL written notice of any such assignment.
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15.
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BINDING
EFFECT
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This
Agreement shall be binding upon and inure to the benefit of the Parties hereto,
and to their successors and permitted assigns.
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16.
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PERSONNEL
POLICIES & PROCEDURES INCLUDING SAFETY AND HEALTH
PROGRAMS
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16.1
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PROFESSIONAL
shall take all reasonable steps and precautions to comply with all
federal, state or local laws and regulations applicable to protect the
health and safety of its employees, agents, representatives and other
personnel with regard to the
Services.
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16.2
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PROFESSIONAL
shall comply with all CALPINE site programs and procedures when performing
Services onsite at CALPINE
facilities.
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17.
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DRUGS,
ALCOHOL AND WEAPONS
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PROFESSIONAL
agrees to comply with CALPINE's policy regarding drugs, alcohol and weapons and
shall advise and enforce this policy with its employees, subcontractors and
agents. CALPINE's policy prohibits: (a) the use, possession and/or distribution
of illegal or unauthorized drugs, drug-related paraphernalia or weapons on
CALPINE's premises; and (b) the use or possession of alcoholic beverages, except
where authorized by CALPINE's management. PROFESSIONAL shall immediately remove
and bar from CALPINE's premises any employee or contractor who is in violation
of this policy. CALPINE reserves its rights to remove and bar any person who is
found in violation of this policy.
18.
AUTHORITY
PROFESSIONAL
possesses all requisite power and authority to enter into and perform the
services contemplated in this Agreement and all related Statement of
Works. PROFESSIONAL has all legal power and authority to own and use
its properties and to transact the business in which it engages or proposes to
engage, and holds or expects to obtain all Authorizations necessary and required
therefore.
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19.
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CONFLICTS
OF INTEREST
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PROFESSIONAL
agrees during the term of this agreement to disclose to CALPINE any consulting
engagements that it enters into with competitors of CALPINE involving services
similar to those provided by PROFESSIONAL to CALPINE hereunder. If requested by
CALPINE, PROFESSIONAL and CALPINE will discuss in good faith implementation of
customary measures by PROFESSIONAL designed to ensure the maintenance of the
confidentiality of CALPINE’s Confidential Information (such as firewalls).
PROFESSIONAL shall not be required to disclose any information to CALPINE which
could reasonably be expected to violate any applicable securities or other laws,
any obligation of confidentiality to any other client of PROFESSIONAL or any
professional standard applicable to PROFESSIONAL.
13
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20.
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NOTICES
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All
notices, correspondence and other communications under this Agreement shall be
in writing and shall be deemed to have been duly given when actually received.
Such notices may be given by first class, registered or certified mail, email or
by facsimile transmission.
If to
CALPINE:
Calpine
Corporation
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Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, EVP, GC
Email:
▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
with a
copy to:
Calpine
Corporation
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▇▇▇▇▇▇▇,
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Attention:
General Counsel
If to
PROFESSIONAL:
PA
Consulting Group, Inc.
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Email:
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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21.
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COUNTERPARTS
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This
Agreement may be signed in any number of counterparts with the same effect as if
the signatures to each counterpart were upon a single instrument, and all such
counterparts together shall be deemed an original of this Agreement. Execution
and delivery of this Agreement by exchange of facsimile copies or PDF bearing
the facsimile or electronic signature of a Party hereto shall constitute a valid
and binding execution and delivery of this Agreement by such Party. Such
facsimile or PDF copies shall constitute enforceable original
documents.
14
IN
WITNESS WHEREOF, this Agreement is executed effective as of the day and year
first above written.
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CALPINE
CORPORATION
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PA
CONSULTING GROUP, INC.
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By:
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/s/ R. P. May |
By:
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
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Name:
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Name:
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Title:
Chief
Executive Officer
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Title:
Managing
Partner
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Address:
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Address:
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[SIGNATURE
PAGE TO THE PROFESSIONAL ENGAGEMENT AGREEMENT]