INFORMATION TECHNOLOGY SERVICES AGREEMENT
EFFECTIVE AS OF FEBRUARY 28, 2000
BETWEEN
CALIFORNIA POWER EXCHANGE CORPORATION
AND
▇▇▇▇▇ SYSTEMS CORPORATION
Article 1
Definitions, Agreement and Term
1.1 Certain Definitions .................................................. 1
1.1 Certain Definitions .................................................. 1
1.2 Agreement ............................................................ 1
1.3 Term ................................................................. 1
Article 2
Account Management and Personnel
2.1 Account Manager ...................................................... 1
2.2 Change of Account Manager ............................................ 1
2.3 ▇▇▇▇▇ Systems Key Employees .......................................... 2
2.4 PSC Personnel ........................................................ 3
2.5 Conduct and Removal of PSC Personnel ................................. 3
2.6 CalPX Representative ................................................. 4
2.7 Transfer of Personnel ................................................ 4
2.8 Subcontractors ....................................................... 4
2.9 Restrictions on Hiring ............................................... 5
Article 3
Services
3.1 Base Services ...................................................... 5
3.2 Service Levels ..................................................... 6
3.3 Additional Services ................................................ 7
3.4 Change Control Procedure ........................................... 8
3.5 IT Procurement Services ............................................ 10
3.6 Management Procedures Manual ....................................... 10
3.7 Reports ............................................................ 10
3.8 Improved Technology ................................................ 10
3.9 Changes in Law and Regulations ..................................... 10
3.10 Technical Standards ................................................ 11
3.11 Knowledge Sharing .................................................. 11
3.12 Customer Satisfaction .............................................. 11
3.13 Regular Improvement ................................................ 12
Article 4
CalPX Responsibilities
4.1 Cooperation ......................................................... 12
4.2 Access to Software .................................................. 13
4.3 Access to CalPX Facilities .......................................... 13
4.4 Access to Technology ............................................... 14
4.5 Required Improvements .............................................. 14
Article 5
Payments to ▇▇▇▇▇ Systems
5.1 Base Services Fees ................................................. 15
5.2 Additional Services Charges ........................................ 15
5.3 Performance Bonuses and Credits .................................... 15
5.4 Reimbursable Expenses .............................................. 16
5.5 Taxes .............................................................. 16
5.6 Cost of Living Adjustment .......................................... 16
5.7 Time of Payment .................................................... 17
5.8 Audit of Charges ................................................... 17
5.9 Pass-Through Expenses .............................................. 17
5.10 Adjustment of Budget ............................................... 17
5.11 No Other Charges ................................................... 18
5.12 Fee Disputes ....................................................... 18
5.13 Proration .......................................................... 19
5.14 Unused Credits ..................................................... 19
5.15 Retention of Records ............................................... 19
Article 6
Confidentiality, Proprietary Rights and Audit Rights
6.1 CalPXData .......................................................... 19
6.2 Confidential Information ........................................... 20
6.3 CalPX Proprietary Software ........................................ 22
6.4 ▇▇▇▇▇ Systems Software and ▇▇▇▇▇ Systems Tools ..................... 22
6.5 Rights in Developed Software ....................................... 23
6.6 Know-How ........................................................... 25
6.7 Audit of Ca1PX's Business .......................................... 26
6.7 Audit of CalPX's Business .......................................... 2
6.8 Data Security ...................................................... 26
6.9 Safety and Security Procedures ..................................... 26
6.10 Security Relative to CalPX Competitors ............................. 26
Article 7
Performance Review and Termination
7.1 Performance Review ................................................. 27
7.2 Dispute Resolution ................................................. 27
7.3 Arbitration ........................................................ 27
7.4 Termination for Cause .............................................. 28
7.5 Termination for Non-Payment ........................................ 28
7.6 Termination for Insolvency ......................................... 28
7.7 Termination for Convenience ........................................ 28
7.8 Termination for Causing Failure of Critical Services ............... 29
7.9 Force Majeure Termination Provision ................................ 30
7.10 Continuity of Services ............................................. 30
7.11 Transition Obligations ............................................. 30
7.12 Force Majeure ...................................................... 32
Article 8
Indemnities
8.1 Bodily Injury and Property Damage Indemnity ........................ 32
8.2 Intellectual Property Indemnity .................................... 33
8.3 Employment Indemnity ............................................... 33
8.4 CalPX Business Risk Indemnity ..................................... 34
8.5 Other ▇▇▇▇▇ Systems Indemnities .................................... 34
8.6 Indemnification Procedures ......................................... 34
Article 9
Liability
9.1 Limitation of Liability ............................................ 35
9.2 Limitation on Type of Damages ...................................... 35
9.3 Exclusions ......................................................... 35
9.4 Year 2000 Problems ................................................. 35
Article 10
Warranty
10.1 By ▇▇▇▇▇ Systems ................................................... 36
10.2 By Each Party ...................................................... 36
10.3 Disclaimer of Warranty ............................................. 37
10.4 Certain Covenants .................................................. 37
Article 11
Insurance
11.1 Insurance .......................................................... 38
Article 12
Miscellaneous
12.1 Relationship of Parties ........................................... 39
12.2 Notices ........................................................... 40
12.3 Assignment ........................................................ 40
12.4 Severability ...................................................... 41
12.5 Captions .......................................................... 41
12.6 Modification; Waiver .............................................. 41
12.7 No Third-Party Beneficiaries ...................................... 41
12.8 Governing Law ..................................................... 41
12.9 Consents, Approvals, Requests and Opinions ........................ 41
12.10 Survival .......................................................... 41
12.11 Sole and Exclusive Venue .......................................... 42
12.12 Covenant of Further Assurances .................................... 42
12.13 Negotiated Terms .................................................. 42
12.14 Remedies Cumulative ............................................... 42
12.15 Conflict of Interest .............................................. 42
12.16 Export ............................................................ 42
12.17 Entire Agreement .................................................. 42
12.18 Media Releases .................................................... 43
12.19 TaskOrderNo.5 ..................................................... 43
Schedules
1.1 Definitions
1.2 Excluded Services
2.3 Personnel
2.4 Key Employees
2.5 Corporate Information Securities Standards, Guidelines & Procedures
2.7 Transfer of Employees
3.1 Base Services
3.2 Service Levels
4.2 Managed Software
4.4 CalPX Technology
4.5 Required Improvements
5.1 Service Charges
5.2 ▇▇▇▇▇ Systems Standard Commercial Rates
5.4 CalPX Expense and Reimbursement Policy
7.3 Supplemental Procedures for CalPX Disputes
7.8 Disruption of Critical Services
INFORMATION TECHNOLOGY SERVICES AGREEMENT
This Information Technology Services Agreement ("Agreement"), dated as of
February 17, 2000 (the "Agreement Date"), is between ▇▇▇▇▇ Systems Corporation
("▇▇▇▇▇ Systems"), a Delaware corporation with its principal place of business
at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and the California Power
Exchange Corporation ("CalPX"), a California nonprofit public benefit
corporation with its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Article 1
Definitions, Agreement and Term
1.1 Certain Definitions. The terms set forth in Schedule 1.1 are defined as
set forth in Schedule 1.1.
1.2 Agreement. CalPX shall purchase all of its requirements for information
technology services related to application maintenance, application
development, program management and computer operations from ▇▇▇▇▇
Systems during the Term in accordance with the terms of this Agreement,
except for the information technology services described in Schedule 1.2
("Excluded Services").
1.3 Term. The term of this Agreement shall begin on February 28, 2000 at
12:01 a.m., PST ("Effective Date") and shall end on February 27, 2003 at
11:59 p.m., PST (the "Initial Term") unless earlier terminated in
accordance with the terms of this Agreement.
Article 2
Account Management and Personnel
2.1 Account Manager. ▇▇▇▇▇ Systems shall designate an Account Manager
("Account Manager") who shall be directly responsible for coordinating,
managing and supervising the delivery of the Services and shall have full
authority to act on ▇▇▇▇▇ Systems' behalf with respect to all matters
relating to this Agreement. The Account Manager shall work with the CalPX
Representative to address CalPX's information technology issues and
strategies and the parties' relationship under this Agreement. The
initial Account Manager shall be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇.
2.2 Change of Account Manager.
a. Unless CalPX agrees, ▇▇▇▇▇ Systems shall not replace or reassign
the Account Manager for a period of not less than 12 months after
the date of his or her assignment to the CalPX account unless such
Account Manager (a) voluntarily resigns his or her employment or
terminates his or her contract of engagement with ▇▇▇▇▇ Systems,
(b) is dismissed by ▇▇▇▇▇ Systems for misconduct, (c) fails to
perform his or her duties and responsibilities pursuant to this
Agreement, (d) dies or
is unable to work due to his or her disability, or (e)
independently initiates a request for reassignment for personal
reasons.
b. Before assigning a replacement Account Manager, ▇▇▇▇▇ Systems
shall (a) notify the CalPX Representative of the proposed
assignment, (b) introduce the individual to appropriate
representatives of CalPX, and (c) provide the CaIPX Representative
with the qualifications and any other appropriate information
regarding the individual that may be requested by the CalPX
Representative. In the event the CalPX Representative does not
approve of an individual which ▇▇▇▇▇ Systems proposes to appoint
as an Account Manager, ▇▇▇▇▇ Systems shall in good faith select an
alternate candidate and shall follow the procedure set forth in
this subsection with respect to such candidate.
2.3 ▇▇▇▇▇ Systems Key Employees. With respect to the persons identified in
Schedule 2.4 (the "Key Personnel"), the parties agree as follows:
a. The individuals serving as Key Personnel shall each be dedicated
to the CalPX account on a full-time basis.
b. Before assigning an individual, other than those individuals named
in Schedule 2.4 as Key Personnel, as a replacement for any Key
Personnel, ▇▇▇▇▇ Systems shall (a) notify the CalPX Representative
of the proposed assignment, (b) introduce the individual to the
CalPX Representative and, (c) provide the CalPX Representative
with the qualifications and any other appropriate information
regarding the individual that may be requested by the CalPX
Representative. If the CalPX Representative does not approve of
the assignment of such individual as Key Personnel, ▇▇▇▇▇ Systems
shall in good faith select an alternate candidate and shall follow
the procedure set forth in this subsection with respect to such
candidate.
c. Unless CalPX agrees otherwise, ▇▇▇▇▇ Systems shall not replace or
reassign any individual assigned to the CalPX account as Key
Personnel during a period of 12 months from the date of his or her
assignment as Key Personnel unless such individual (a) voluntarily
resigns from, or terminates his or her contract of engagement
with, ▇▇▇▇▇ Systems, (b) is dismissed by ▇▇▇▇▇ Systems, (c) fails
or is not qualified to perform his or her duties and
responsibilities pursuant to this Agreement, (d) dies or is unable
to work due to his or her disability, (e) independently initiates
a request for reassignment for personal reasons, or (f) the
services of such Key Personnel, in ▇▇▇▇▇ Systems' reasonable
opinion and with the concurrence of the CalPX Representative, are
no longer required for the performance of this Agreement.
d. If, in CaIPX's opinion, any individual assigned to the CalPX
account as Key Personnel should not remain assigned to the CalPX
account, then CaIPX shall advise ▇▇▇▇▇ Systems of such opinion,
and ▇▇▇▇▇ Systems shall promptly investigate
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the matter and take appropriate action which may include (a)
removing such individual from his or her status as Key Personnel
and notifying CalPX of such removal and replacing such individual
with another qualified individual; or (b) other appropriate
disciplinary action.
▇. ▇▇▇▇▇ Systems shall maintain recruiting and replacement procedures
for Key Personnel designed to assure an orderly succession in as
prompt a manner as reasonably possible for any Key Personnel who
resign or are replaced.
2.4 PSC Personnel. ▇▇▇▇▇ Systems shall assign qualified personnel as PSC
Personnel to perform the Services under this Agreement. On a quarterly
basis, ▇▇▇▇▇ Systems shall provide to the CaIPX Representative a list of
all PSC Personnel dedicated full-time to the CalPX account.
2.5 Conduct and Removal of PSC Personnel.
a. While on CalPX premises, ▇▇▇▇▇ Systems shall use reasonable
commercial efforts to cause the PSC Personnel to comply with the
reasonable requests and standard rules and regulations of CalPX
regarding safety, health and personal conduct generally applicable
to CalPX and vendor personnel working at such CalPX premises,
including (i) subject to each individual person serving as PSC
Personnel being provided with a copy, complying with the CalPX
Employee Code of Conduct, (ii) wearing an identification badge,
and (iii) otherwise conducting themselves in a businesslike
manner.
▇. ▇▇▇▇▇ Systems shall cause the PSC Personnel to comply with (a) the
confidentiality provisions of this Agreement, and (b) CalPX's
computer security procedures, a current copy of which is attached
as Schedule 2.5, as amended by CalPX from time to time.
c. If CalPX reasonably determines that any PSC Personnel are not
conducting themselves in accordance with this Section, CalPX shall
notify ▇▇▇▇▇ Systems of the non-compliant conduct. Upon receiving
such notice, ▇▇▇▇▇ Systems shall promptly investigate the matter
and take appropriate disciplinary action which may include (a)
removing the applicable person from the CalPX account, providing
CalPX with notice of such removal, and replacing him or her with
another qualified person, or (b) other disciplinary action
reasonably anticipated to prevent a recurrence. If there are
repeated violations of this Section by a particular individual,
▇▇▇▇▇ Systems shall remove the individual from the CalPX account.
▇▇▇▇▇ Systems shall notify the CalPX Representative immediately
after dismissing or reassigning any PSC Personnel whose normal
work location is at a CalPX service location. Except as otherwise
approved by CalPX, those PSC Personnel located on CalPX's premises
may only provide services on such premises which support CalPX's
operations.
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2.6 CalPX Representative. CalPX shall designate a representative ("CalPX
Representative") who shall have overall responsibility for managing and
coordinating the performance of CaIPX's obligations under the Agreement,
including determining prioritization of certain of the Services, and shall
have full authority to act on CalPX's behalf with respect to all matters
relating to this Agreement. The CalPX Representative shall work with the
Account Manager to address CalPX's information technology issues and
strategies and the parties' relationship under this Agreement. The initial
CalPX Representative shall be ▇▇▇▇▇▇ ▇▇▇. The CalPX Representative may
delegate such of his or her responsibilities to another officer or
director of CaIPX with notice to ▇▇▇▇▇ Systems.
2.7 Transfer of Personnel.
(a) ▇▇▇▇▇ Systems shall offer employment to CalPX's employees who are
listed in Part A of Schedule 2.3 in accordance with ▇▇▇▇▇ Systems'
standard employment policies as of the Effective Date, and in
accordance with Schedule 2.7. Such offer of employment shall be
made on or before February 22, 2000. ▇▇▇▇▇ Systems shall request
that these employees accept the offer of employment by the close of
business of CalPX on February 24, 2000, which acceptance shall be
effective as of 12:01 a.m., PST, on February 28, 2000.
(b) ▇▇▇▇▇ Systems shall use reasonable commercial efforts to engage as
independent contractors or employees the contract personnel who are
listed in Part B of Schedule 2.3 in accordance with ▇▇▇▇▇ Systems'
standard independent contractor agreement. ▇▇▇▇▇ Systems shall
offer to engage or employ such contract personnel, or notify CalPX
of its decision not to engage or employ such contract personnel,
within two business days of the Agreement Date.
(c) Those CalPX employees listed in Schedule 2.3 who accept ▇▇▇▇▇
Systems' offer of employment are referred to collectively as the
"Transitioned Employees" and those CalPX employees who do not
accept such offers of employment are referred to collectively as
the "Non-Transitioned Employees." CalPX shall cooperate with ▇▇▇▇▇
Systems in connection with ▇▇▇▇▇ Systems making such offers. CalPX
shall not make any representations to the Transitioned Employees
relating to the terms of employment by ▇▇▇▇▇ Systems. If any
Transitioned Employee is terminated by ▇▇▇▇▇ Systems within six
months after the Effective Date, CalPX shall reimburse ▇▇▇▇▇
Systems for severance costs as same may be incurred by ▇▇▇▇▇
Systems in accordance with ▇▇▇▇▇ Systems' standard employment
policies as of the Effective Date. CalPX shall reimburse the
severance paid by ▇▇▇▇▇ Systems after presentation of an invoice
with supporting documentation in accordance with Section 5.7.
2.8 Subcontractors. ▇▇▇▇▇ Systems may engage independent third parties or one
or more of its Affiliates to perform as a subcontractor to ▇▇▇▇▇ Systems
any part of the Services or other obligations to be performed by ▇▇▇▇▇
Systems under this Agreement, provided that:
4
(a) ▇▇▇▇▇ Systems' Account Manager shall obtain the CalPX
Representative's prior approval of any subcontractor (other than an
Affiliate controlled by ▇▇▇▇▇ Systems) that ▇▇▇▇▇ Systems
reasonably expects, at the time of the initial engagement, shall be
paid more than $250,000 during the term of the agreement under
which such subcontractor is engaged or, in the case of multiple
agreements with a single subcontractor, during any 12 month period.
Such approval shall not be necessary for Affiliates controlled by
▇▇▇▇▇ Systems unless otherwise agreed in the Change Control
Procedure.
(b) ▇▇▇▇▇ Systems shall be fully responsible for the work and
activities of its subcontractors, including the compliance of such
subcontractors with the terms of this Agreement. ▇▇▇▇▇ Systems
shall use commercially reasonable efforts to keep CalPX's property
free from liens arising in connection with the Services performed
by ▇▇▇▇▇ Systems under this Agreement.
2.9 Restrictions on Hiring. Except as otherwise specifically provided in this
Agreement, ▇▇▇▇▇ Systems and CalPX each agree not to hire or recruit the
other's employees with whom ▇▇▇▇▇ Systems or CalPX came into contact in
connection with the activities contemplated by this Agreement until the
earlier of a) six months after the end of the Term; and b) six months
after such employee is no longer employed by the applicable party,
without, in each case, the prior written consent of the other party.
Article 3
Services
3.1 Base Services. During the Term, ▇▇▇▇▇ Systems shall provide the Core
Services and up to the number of Full-Time Equivalent PSC Personnel shown
in Schedule 5.1 to perform Applications Development services, and
Business Consulting services (collectively, "Base Services") at CalPX's
offices in Alhambra, California; Pasadena, California; ▇▇▇▇▇ Systems'
▇▇▇▇▇▇▇▇▇▇ Information Management Facility ("RIMF"), and such other ▇▇▇▇▇
Systems offices and data centers as the parties mutually agree.
(a) Core Services are defined as:
(i) the Program Management Services described in Part A of
Schedule 3. 1;
(ii) the Computer Operations Services described in Part B of
Schedule 3. 1;
(iii) the Applications Maintenance Services described in Part C of
Schedule 3.1; and
(iv) the IT Procurement Services.
(b) Applications Development Services are described in Part D of
Schedule 3. 1; and
(c) Business Consulting Services are described in Part E of Schedule
3.1.
5
3.2 Service Levels.
(a) In the absence of adequate historical data from the operation of
CalPX's Systems, the parties agree to use the service levels set
forth in Schedule 3.2 ("Service Levels") for the Services. These
Service Levels have been selected based upon industry data and a
partial analysis of the operation of CalPX's Systems and the
number of PSC Personnel assigned to perform the Services. During
the first 120 days after the Effective Date ("Transition Period"),
▇▇▇▇▇ Systems and CalPX shall diligently and in good faith
negotiate any changes to the Service Levels that are required to
reflect the actual operation of CalPX's Systems during the
six-month period prior to the Effective Date. After the Transition
Period, ▇▇▇▇▇ Systems shall meet or exceed the mutually agreed
Service Levels with respect to the Services. The addition of any
Service Level not set forth on Schedule 3.3 as of the Effective
Date shall require an amendment to this Agreement.
(b) ▇▇▇▇▇ Systems shall be excused from its obligation to perform the
Computer Operations Services in accordance with the Service Levels
to the extent that it can not meet such Service Levels as a result
of actions or failures to act by CalPX in accordance with this
Agreement or by a third party other than ▇▇▇▇▇ Systems or PSC
Personnel, including any failure to obtain any access described in
Section 4.2(b) or Force Majeure Event.
(c) As contemplated by the Change Control Procedure, (i) any Change
Order implementing service or resource additions or reductions
requested by CalPX and any other Change Order changing the manner
in which the Core Services are provided by ▇▇▇▇▇ Systems shall
include an appropriate adjustment to the applicable Service
Levels, and (ii) ▇▇▇▇▇ Systems shall review with CalPX as part of
the Change Order Procedure the anticipated effect of such
reduction, addition or change on ▇▇▇▇▇ Systems' ability to meet
the applicable Service Levels.
(d) If ▇▇▇▇▇ Systems fails to meet any Service Level, ▇▇▇▇▇ Systems
shall (i) promptly investigate and perform a root-cause analysis
to identify the cause of the failure; (ii) provide to CalPX a
report on the causes of the problem; (iii) correct the problem, to
the extent such problem is within its control, or take appropriate
steps to cause the problem to be corrected to the extent such
problem is not within its control; (iv) to the extent within its
control, take appropriate preventive measures to reduce the
probability of a recurrence of the problem; (v) take appropriate
actions to mitigate the adverse effects of the problem prior to
its correction; and (vi) periodically advise the CalPX
Representative of the status of remedial efforts being undertaken
with respect to such problems.
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3.3 Additional Services.
(a) ▇▇▇▇▇ Systems shall provide to CalPX such additional services that
are beyond the scope of the Base Services ("Additional Services")
as ▇▇▇▇▇ Systems and CalPX from time to time agree in writing.
Base Services, Additional Services, and any Transition Assistance
provided under Section 7.11 are collectively referred to herein as
"Services." Upon identifying a need for information technology or
business consulting services outside the scope of the Base
Services, the Account Manager and the CalPX Representative shall
coordinate the preparation of a document identifying, in
reasonable detail, the services to be performed, the specific
hardware, software and third party services to be delivered as
part of such services, and the objective completion criteria to be
applied in connection with such services. This document shall be
reviewed by the IT Steering Committee.
(b) ▇▇▇▇▇ Systems acknowledges and agrees that CalPX prefers to use
commercial off-the-shelf software, rather than custom-designed
solutions, to meet its requirements whenever and wherever
practical, and ▇▇▇▇▇ Systems shall use reasonable commercial
efforts to identify commercial off-the-shelf software products
that are suitable for use by CalPX as part of any proposal to
provide Additional Services.
(c) If CalPX, in its sole and absolute discretion, chooses to
terminate the contract of any third party vendor that is providing
desktop, network or telecommunications information technology
services, or such contract expires in accordance with its terms,
and CalPX (i) desires to obtain such services from another third
party and (ii) determines in its reasonable discretion that ▇▇▇▇▇
Systems has the appropriate expertise and resources to provide
such services, then CalPX and ▇▇▇▇▇ Systems shall commence good
faith negotiations for ▇▇▇▇▇ Systems to provide such services. In
the event that following such good faith negotiations, the parties
shall not have reached agreement on the terms of ▇▇▇▇▇ Systems
providing such services within 30 days of the commencement of such
negotiations, then CalPX shall have the right to enter into an
agreement with a third party to provide such services; provided
that prior to entering into a definitive agreement for the
provision of such services ▇▇▇▇▇ Systems shall be offered the
opportunity to resubmit another proposal for the provision of such
services. CalPX acknowledges and agrees that ▇▇▇▇▇ Systems has, as
of the Effective Date, the technical capability and experience to
perform the Desktop Support Services and Desktop Procurement
Services.
(d) Additional Services will be performed under individual written
task order ("Task Orders") that are approved and issued in
accordance with this Section 3.3 and the Change Control Procedure.
Each Task Order shall identify, in reasonable detail, the services
to be performed, the specific hardware, software and third party
services to be delivered as part of such services, and the
objective completion criteria to be applied in connection with
such services, in addition to the price, reimbursable expenses and
pass-through expenses to be paid by CalPX for such Additional
7
Services. ▇▇▇▇▇ Systems will commence the Additional Services upon
execution of the Task Order by CalPX and ▇▇▇▇▇ Systems.
3.4 Change Control Procedure.
(a) All Changes (as defined herein) shall be reviewed by the Change
Review Board. All Change Orders shall be reviewed and approved in writing by the
Account Manager and CalPX Representative. The budgetary and schedule effects of
reasonably interrelated Change Orders shall be aggregated to determine whether
the CalPX Representative or the Change Review Board should review such Change
Orders. The parties shall use their reasonable commercial efforts to minimize
any adjustments to development schedules, development budget and application
requirements. Change Orders may be approved electronically by the Account
Manager and the CalPX Representative.
(b) During the first 30 days after the Effective Date, ▇▇▇▇▇ Systems
shall prepare and deliver to the Change Review Board, for its review and
approval, the Change Control Procedures to be used under this Agreement to
control Changes in scope, schedule and cost of the Services. The Change Control
Procedures shall provide, at a minimum, that (i) all Changes, including Changes
to the Change Control Procedures, shall be made pursuant to the Change Control
Procedures, except as may be necessary on an emergency basis; (ii) no Change
which is reasonably expected to materially or adversely affect the function or
performance of any System or result in a material increase in the charges to
CalPX under this Agreement shall be implemented without the Change Review
Board's approval, except as may be necessary on an emergency basis; (iii) all
Changes, except those made as necessary on an emergency basis, shall be
implemented in accordance with a schedule provided to the Change Review Board
periodically and under circumstances that are reasonably expected not to
interrupt CalPX's business oper- ations materially; and (iv) the Account Manager
shall give the Change Review Board prompt notice (which may be given orally,
provided that any oral notice is confirmed in writing within five business days)
of any Change made as necessary on an emergency basis.
(c) Changes to the application requirements, development budget, or
development schedule shall be made only by mutual agreement of the affected
parties through the use of a Change Order. All requests for Changes by a party
shall be communicated by the Account Manager or CalPX Representative, as the
case may be, to the CalPX Representative or Account Manager, as the case may be,
or the Change Review Board as appropriate. No party shall have any obligation or
authority to implement Changes requested through any other means.
(d) Requests for Change Orders shall be submitted for review in
accordance with the Change Control Procedure, and shall include the following
information: (i) a
8
detailed description of the Change requested, (ii) the business,
technical or financial justification for the Change requested, (iii) the price,
capital and operating costs associated with the Change requested, (iv) the
projected schedule impact of the Change requested, and (v) the priority of the
Change requested.
(e) Within ten business days (or such longer period as is mutually
agreeable) after receiving a request from CalPX for a Change Order, ▇▇▇▇▇
Systems shall prepare and provide to CalPX's Representative or the Change Review
Board a document summarizing the effect, if any, of the proposed Change on (i)
the development schedule, including but not limited to CalPX's obligations under
the development schedule, (ii) the functionality and requirements of the
applicable System to be delivered, and (iii) the development budget. In
addition, ▇▇▇▇▇ Systems shall inform CalPX regarding any other business impact
that ▇▇▇▇▇ Systems believes to be relevant to an evaluation of the Change Order.
The CalPX Representative or the Change Review Board, as the case may be, shall
review the information and, as the Change Review Board deems necessary, revise
it at the next succeeding Change Review Board meeting and promptly forward its
report on the proposed Change to CalPX. Within ten business days or such longer
period as is mutually agreeable to the parties, after receiving such
information, CalPX shall approve, reject or with-draw the request for such
Change Order. CalPX's failure to approve, reject or withdraw the request within
the applicable time period shall be deemed a withdrawal of such request.
(f) Upon submitting a request for a Change Order initiated by ▇▇▇▇▇
Systems, ▇▇▇▇▇ Systems shall provide to CalPX a document summarizing the effect,
if any, on (i) the development schedule, including but not limited to CalPX's
obligations under the development schedule, (ii) the functionality and
requirements of the applicable System to be delivered, and (iii) the development
budget. In addition, ▇▇▇▇▇ Systems shall inform CalPX regarding any other
business impact that it believes to be relevant to an evaluation of the Change
Order. The Change Review Board shall review the information and, as the Change
Review Board deems necessary, revise it at the next succeeding Change Review
Board meeting and promptly forward its report to CalPX. Within ten business days
after receiving such information (or within ten business days after receiving
the Change Review Board's report, in the case of a Change request reviewed by
the Change Review Board), CalPX shall approve or reject the requested Change
Order. CalPX's failure to approve or reject the requested Change Order within
the applicable time period shall be deemed a rejection of such request.
(g) In any case where no final agreement has been reached on a Change
request but the CalPX Representative nonetheless orders ▇▇▇▇▇ Systems to carry
out such Change, ▇▇▇▇▇ Systems shall use its commercially reasonable efforts to
carry out such Change within the time requested by CalPX at the price and
related terms proposed
9
by ▇▇▇▇▇ Systems, and either party may refer the disputed Change
request to the procedures provided in Section 7.2 and 7.3.
3.5 IT Procurement Services. At CalPX's written request, ▇▇▇▇▇ Systems
shall purchase, lease or license equipment, software, services and supplies from
▇▇▇▇▇ Systems' suppliers on behalf of CalPX and for CaIPX's account or shall
facilitate the purchase, lease or license of such items by Ca1PX at the prices
available to ▇▇▇▇▇ Systems (the "IT Procurement Services").
3.6 Management Procedures Manual. On or before the end of the
Transition Period and as part of the Services, (1) Ca1PX and ▇▇▇▇▇ Systems shall
establish procedures pursuant to which mutually agreed policies of CalPX and
▇▇▇▇▇ Systems shall be adhered to during the Term, and (2) ▇▇▇▇▇ Systems shall
prepare and deliver to CalPX, for CalPX's approval, a management procedures
manual (the "Management Procedures Manual") generally describing (a) the
Services, (b) the computer hardware and software environments in which the
Services will be performed, (c) the documentation, if any, which provides
further details regarding the Services or computer hardware and software
environment in which the Services will be performed, (d) the procedures ▇▇▇▇▇
Systems intends to use to manage the Services, and (e) the management reporting
system that ▇▇▇▇▇ Systems shall use to manage this Agreement and communicate to
CalPX. ▇▇▇▇▇ Systems and CalPX shall update the Management Procedures Manual
whenever necessary to reflect any changes in the operations or procedures
described therein within a reasonable time after such changes are made.
3.7 Reports. ▇▇▇▇▇ Systems shall provide to CalPX performance,
utilization and status reports relating to the Services and Service Levels as
requested by CalPX in a form acceptable to CalPX.
3.8 Improved Technology. As part of the Services, ▇▇▇▇▇ Systems shall
provide CalPX with information about, and recommendations regarding, information
technology developments that could reasonably be expected to have a favorable
impact on CalPX's information technology operations for CalPX's consideration
and evaluation, including information regarding any new information technology
developments that are not subject to third party confidentiality restrictions
made generally available by ▇▇▇▇▇ Systems for use by ▇▇▇▇▇ Systems' customers.
In addition, ▇▇▇▇▇ Systems shall meet with CalPX at least twice per year during
the Term to inform CaIPX of any new information technology developments that are
not subject to third party confidentiality restrictions which ▇▇▇▇▇ Systems is
developing and any appropriate information processing trends and directions of
which ▇▇▇▇▇ Systems is aware.
3.9 Changes in Law and Regulations.
(a) ▇▇▇▇▇ Systems shall identify and notify CalPX of any changes in
any laws or regulations applicable to ▇▇▇▇▇ Systems or its operating procedures
that could adversely affect the use or delivery of the Services. CalPX shall
identify and notify ▇▇▇▇▇ Systems of any changes in any laws or regulations
applicable to CaIPX or its operating procedures that require changes to the way
in which the Services are
10
provided by ▇▇▇▇▇ Systems. ▇▇▇▇▇ Systems and CalPX shall work
together to identify the impact of any such laws or regulations on how CalPX
uses, and ▇▇▇▇▇ Systems delivers, the Services. Each party shall be responsible
for any fines and penalties arising from its failure to comply with any laws or
regulations applicable to its business operations relating to the delivery or
use of the Services.
(b) If any changes in laws or regulations prevent ▇▇▇▇▇ Systems from
performing its obligations under this Agreement, ▇▇▇▇▇ Systems shall (i) use
commercially reasonable efforts to continue to perform the Services and (ii)
develop and, upon CalPX's approval, implement a suitable workaround for its
obligations under this Agreement that cannot be performed until such time as
▇▇▇▇▇ Systems can perform its obligations under this Agreement without such
workaround. If the applicable change in law or regulatory requirements is
applicable to ▇▇▇▇▇ Systems, then ▇▇▇▇▇ Systems shall develop and implement such
workaround at its own expense. If the applicable change in law or regulatory
requirements is applicable to CalPX and such change results in additional costs
to ▇▇▇▇▇ Systems to perform its obligations under this Agreement, then CalPX
shall pay ▇▇▇▇▇ Systems for its incremental costs incurred in connection with
making the appropriate changes as part of the Base Services or as an Additional
Service, as the case may be.
3.10 Technical Standards. ▇▇▇▇▇ Systems shall comply with CalPX's
information management technical architecture and product standards in effect on
the Agreement Date and as amended pursuant to the Change Control Procedure
during the Term.
3.11 Knowledge Sharing. At least once every year, and on request after at
least 30 days' notice from CalPX, ▇▇▇▇▇ Systems shall meet with representatives
of CalPX to explain, at an executive level, how (1) the Systems are designed and
operate, and (2) the Services are provided.
3.12 Customer Satisfaction.
(a) Within 90 days after the Effective Date, ▇▇▇▇▇ Systems shall
conduct a survey to measure end-user satisfaction with the Services at each
CalPX site. The survey shall contain questions, and shall be administered
according to procedures, mutually agreed by CalPX and ▇▇▇▇▇ Systems within 60
days after the Agreement Date. ▇▇▇▇▇ Systems shall promptly share the results of
each such survey with CalPX, including, without limitation, copies of the user
questionnaires completed by any CalPX personnel.
(b) At least annually during the Term, ▇▇▇▇▇ Systems shall conduct
a survey to measure end-user satisfaction with the Services and ▇▇▇▇▇ Systems'
responsiveness to requests for Services at each CalPX site. The survey shall
contain questions to be agreed upon by CalPX and ▇▇▇▇▇ Systems no later than 30
days before the date on which the survey is scheduled to begin. ▇▇▇▇▇ Systems
shall promptly share the
11
results of each such survey with CalPX, including, without
limitation, copies of the user questionnaires completed by any CalPX personnel.
The content, scope, and method of each such survey shall be consistent with the
baseline customer survey conducted under Section 3.12(a), and the timing of the
surveys shall be subject to mutual agreement.
(c) During the last six months of the Term, CalPX may initiate at its
expense a third- party review of the Services being performed by ▇▇▇▇▇ Systems.
If CalPX initiates such a review, CalPX shall, within five business days after
sending notice of such election, provide ▇▇▇▇▇ Systems with a list of three
unbiased third party benchmarkers acceptable to CalPX, none of whom shall be
competitors to ▇▇▇▇▇ Systems. ▇▇▇▇▇ Systems shall select one of such third party
benchmarkers to be engaged by CalPX. CalPX and ▇▇▇▇▇ Systems shall negotiate in
good faith to determine jointly the information to be provided to the
benchmarker (the "Benchmark Information") and the scope and cost of the review,
and shall (1) review the Benchmark Information and (2) schedule a meeting to
address any issues either party may have with respect to the Benchmark
Information. The benchmarker shall review the scope and level of Services then
being provided under this Agreement, the total number of personnel assigned to
perform those Services, and the charges for the Services and any other
appropriate information related to this Agreement and compare the scope and
level of Services, the total number of personnel assigned to perform such
Services, and the charges for the Services against similar services that are
performed by other full service information technology outsourcing providers who
compete with ▇▇▇▇▇ Systems in similar markets in a similar period. The
benchmarker results shall be treated as Confidential Information.
3.13 Regular Improvement. ▇▇▇▇▇ Systems shall, on a regular basis (1)
identify processes, techniques, equipment and software that could improve the
Services and Service Levels and (2) recommend for adoption or acquisition
non-confidential processes, techniques, equipment, software and tools used by
▇▇▇▇▇ Systems that could improve or lower the cost of CalPX's technology
operations. ▇▇▇▇▇ Systems shall, from time to time, include the information
required by this Section 3.13 in appropriate reports provided to CalPX under
this Agreement.
Article 4
CalPX Responsibilities
4.1 Cooperation. CalPX shall keep ▇▇▇▇▇ Systems informed, as reasonably
appropriate, about those aspects of CalPX's business that could reasonably have
a material effect on the demand for, or provision of, the Services. CalPX shall
cooperate with ▇▇▇▇▇ Systems to ensure that the Change Control Procedure and
other processes relating to the Services that are dependent upon information
from CaIPX are not unreasonably delayed by CalPX.
12
4.2 Access to Software.
(a) CalPX Proprietar Software. CaIPX shall provide ▇▇▇▇▇ Systems
with access to, and the necessary rights to operate, modify, and enhance, its
proprietary software listed in Part A of Schedule 4.2 and such other proprietary
software of CalPX as is necessary for ▇▇▇▇▇ Systems to perform its obligations
under the Agreement ("CaIPX Proprietary Software"). CalPX shall pay any access
or other fees associated with obtaining such rights to the CalPX Proprietary
Software. CalPX shall pay all license, maintenance and other fees associated
with the CaIPX Proprietary Software.
(b) CalPX Vendor Software. CalPX shall provide ▇▇▇▇▇ Systems with
access to, and the necessary rights to operate and, where necessary to perform
the Services to modify and to enhance, its vendor software listed in Part B of
Schedule 4.2 and such other vendor software as is necessary for ▇▇▇▇▇ Systems to
perform its obligations under the Agreement ("Ca1PX Vendor Software") and shall
pay any access or other fees associated with obtaining such rights to the CalPX
Vendor Software. CalPX shall pay all license, maintenance and other fees
associated with the CalPX Vendor Software. Except as contemplated by this
Section 4.2(b), ▇▇▇▇▇ Systems' access to, and other rights in respect of, CalPX
Vendor software shall be subject to the terms of the applicable software license
agreement between CaIPX and the applicable vendors. If CalPX is unable to obtain
the rights described in this paragraph (b), (i) ▇▇▇▇▇ Systems shall be relieved
of any obligations under this Agreement that cannot be performed in the absence
of such rights without violating a third person's intellectual property or other
rights, and (ii) CalPX and ▇▇▇▇▇ Systems shall work together in good faith to
find an alternative way for CalPX to obtain any Services that ▇▇▇▇▇ Systems
cannot perform in a manner that is reasonably satisfactory to both parties.
4.3 Access to Ca1PX Facilities. CalPX shall provide ▇▇▇▇▇ Systems access
to its facilities and shall provide to all PSC Personnel performing Services at
such facilities, without charge, such office furnishings, janitorial service,
telephone service, utilities (including air conditioning) and office-related
equipment (including but not limited to personal computers and related software,
peripherals and supplies and facsimile machines), supplies, and duplicating
services as ▇▇▇▇▇ Systems may reasonably require in connection with the
activities contemplated hereunder. Unless otherwise agreed, CalPX shall not be
obligated to provide such facilities for PSC Personnel performing (i) Services
at the RIMF (or another ▇▇▇▇▇ Systems data center), (ii) Business Consulting
Services, or (iii) any Services on a part-time basis, except as may be necessary
on a short-term, shared basis. CalPX shall procure and purchase at its sole cost
and expense all the necessary hardware and software of Ca1PX reasonably required
by ▇▇▇▇▇ Systems to provide the Services. CalPX shall provide such access 24
hours a day, seven days a week. ▇▇▇▇▇ Systems shall obey all generally
applicable rules and procedures at any CalPX facility of which CalPX has
notified ▇▇▇▇▇
13
Systems. CalPX agrees that such CalPX facilities shall comply with
all applicable laws and regulations. Access and equipment requirements shall be
handled through the Change Control Procedure. PSC Personnel shall receive
similar technologies to those currently in use or contemplated at CalPX.
4.4 Access to Technology. CalPX shall provide ▇▇▇▇▇ Systems with access
to its hardware, equipment, and technology related items and services listed in
Schedule 4.4 and such other hardware, equipment and technology related items and
services as otherwise reasonably necessary for ▇▇▇▇▇ Systems to perform its
obligations under this Agreement (the "CalPX Technology"). CalPX shall pay all
costs and expenses, including without limitation, maintenance costs, associated
with the CalPX Technology.
4.5 Required Improvements. CalPX shall implement, or cause to be
implemented, each of the process, infrastructure, testing and project management
improvements described in Schedule 4.5, and the initiation of the maintenance
windows set forth in Schedule 4.5 ("Required Improvements'). If CalPX does not
implement, or cause to be implemented the Required Improvements, the provisions
of Section 5.3(b) shall not apply until after the Required Improvements have
been implemented. The estimates of additional expenditures, implementation times
and requirements for additional Full-Time Equivalent resources set forth in
Schedule 4.5 as to Required Improvements are subject to change in accordance
with the Change Control Procedures. CalPX agrees to provide funding for those
Required Improvements that require additional expenditures or additional
external resources. Upon the request of CalPX, ▇▇▇▇▇ Systems agrees to provide
the additional external resources as Application Development and Business
Consulting Services under this Agreement. Expenditures for hardware, software
and third party services to implement the Required Improvements shall be the
responsibility of CalPX.
14
Article 5
Payments to ▇▇▇▇▇ Systems
5.1 Base Services Fees.
(a) During the Transition Period and thereafter until the Required
Improvements are completed, ▇▇▇▇▇ Systems shall invoice CalPX on or before the
10th day of each month the Calculated Services Fee for each of the Core
Services, the Application Development Services and the Business Consulting
Services provided during the previous month. After the Transition Period and the
Required Improvements have been completed, ▇▇▇▇▇ Systems shall invoice CalPX on
or before the 10th day of each month for (i) an amount equal to the Baseline
Budget per month for the Core Services to be provided during the following
month, plus (ii) the Calculated Services Fee for each of the Application
Development Services and the Business Consulting Services provided during the
previous month.
(b) After the Transition Period and the Required Improvements have
been completed, the invoice for the first month of each calendar quarter shall
reflect any credit due to CalPX, and any additional amount payable by CalPX, for
all adjustments to the previously invoiced amounts that are required under this
Agreement, including but not limited to any adjustments required pursuant to
Section 5.3 (the "Quarterly True- Up"). ▇▇▇▇▇ Systems shall not modify any
previously prepared Quarterly True-Up, subject to the provisions of Section 5.8.
5.2 Additional Services Charges. During the Term, CalPX shall pay ▇▇▇▇▇ Systems
each month for the Additional Services the amounts agreed to by CalPX and ▇▇▇▇▇
Systems at the times agreed to by ▇▇▇▇▇ Systems and CalPX. Additional Services
shall be provided on a time and materials basis using ▇▇▇▇▇ Systems' "Standard
Commercial Rates", less a 25% discount. ▇▇▇▇▇ Systems may adjust the Standard
Commercial Rates no more often than once per year, beginning in the second year
of the Term, with 60 days advance written notice.
5.3 Performance Bonuses and Credits.
(a) CalPX and ▇▇▇▇▇ Systems have established the "Baseline Budget"
set forth in Schedule 5. 1, which represents CalPX's good faith projection of
the fixed and variable costs and expenses that would have been incurred or paid
by CalPX to perform the Core Services on a monthly basis in the absence of this
Agreement, minus a level of savings projected in good faith to be achievable as
a result of the Required Improvements and other improvements initiated by ▇▇▇▇▇
Systems. The Baseline Budget shall be adjusted annually as provided in Section
5.6.
(b) If during any calendar quarter in which the Calculated Service
Fees for the Core Services (calculated in accordance with paragraph A of
Schedule 5.1) are less than the Baseline Budget for the Core Services, as
adjusted in accordance with Section
15
5.6, for that calendar quarter, then ▇▇▇▇▇ Systems shall credit
CalPX an amount equal to one-half of the amount by which the applicable Baseline
Budget exceeds such Calculated Service Fees. The credit shall be issued on the
first invoice issued to CalPX following the completion of that calendar quarter;
provided that no such credit shall be issued until after the Transition Period
and the Required Improvements have been completed.
(c) If during any calendar quarter the Calculated Service Fees for the
Core Services (calculated in accordance with paragraph A of Schedule 5.1) are
greater than the Baseline Budget for the Core Services, as adjusted in
accordance with Section 5.6, for that calendar quarter, then CalPX shall pay
▇▇▇▇▇ Systems an amount equal to one-half of the amount by which the applicable
Calculated Service Fees exceed the applicable Baseline Budget, which amount
shall be included on the first invoice issued to CalPX following the completion
of that calendar quarter.
5.4 Reimbursale Expenses. CalPX shall pay or reimburse ▇▇▇▇▇
Systems for its reasonable out-of-pocket travel and travel related expenses
incurred in connection with its performance of the Services that arise in
connection with any travel by the PSC Personnel outside of the greater Los
Angeles area requested by CalPX. Notwithstanding the preceding sentence, CalPX
shall not pay or reimburse ▇▇▇▇▇ Systems for travel or travel-related costs
incurred by PSC Personnel assigned to perform the Base Services for travel
within the Los Angeles area. Unless otherwise agreed, any expenses shall be
reimbursed according to CalPX Expense and Reimbursement Policy, attached as
Schedule 5.4, as amended from time to time.
5.5 Taxes. There shall be added to any charges payable by CalPX
under this Agreement, and CalPX shall pay or reimburse to ▇▇▇▇▇ Systems, amounts
equal to any taxes, however designated or levied based upon such charges, the
Services, or this Agreement, including state and local taxes, and any taxes or
amounts in lieu thereof paid or payable by ▇▇▇▇▇ Systems in respect of the
foregoing, excluding franchise taxes and taxes based on the net income of ▇▇▇▇▇
Systems. Each party shall cooperate with the other in minimizing any applicable
tax and, in connection therewith, CalPX shall provide ▇▇▇▇▇ Systems any resale
certificates, information regarding out-of-state use of materials, services or
sales, or other exemption certificates or information reasonably requested by
▇▇▇▇▇ Systems.
5.6 Cost of Living Adjustment. If the Price Index at the end of
each one year period following the Effective Date ("Current Index") is higher
than the Price Index at the beginning of such one year period ("Base Index"),
then, effective as of the end of such one year period, all charges hereunder
shall be increased by the percentage that the Current Index increased from the
applicable Base Index. "Price Index" means the index entitled "Private Industry,
Wages and Salaries, 12-Month Percent Change, Not Seasonally Adjusted," published
by the Bureau of Labor Statistics. If the publisher of this index should stop
publishing or substantially change the content or format of the index, the
parties shall substitute therefor another comparable measure published by a
mutually acceptable source; provided, however, that if such change is merely to
redefine the base year for the Price Index to
16
another year, the parties shall continue to use the Price Index but shall, if
necessary, adjust the Base Index and Current Index as reasonably appropriate.
5.7 Time of Payment. All amounts due hereunder shall be due within 30
days after receipt by CalPX of an invoice therefor. An invoice shall be deemed
to be received in accordance with the terms of Section 12.2, provided that all
invoices shall be addressed to the attention of the CalPX Chief Financial
Officer. CalPX shall deliver a CalPX check to the Account Manager at CalPX's
offices in Pasadena on the due date and ▇▇▇▇▇ Systems shall not charge CalPX for
overnight courier. Amounts not paid when due shall incur interest until paid at
the lesser of (i) 1.5% per month, or (ii) the maximum rate permitted by
applicable law. If any amount not paid when due under this Agreement is disputed
in good faith, interest shall not begin to accrue until the dispute has been
resolved.
5.8 Audit of Charges. Within 30 days after the Effective Date, ▇▇▇▇▇
Systems and CalPX shall agree as to the documentation that ▇▇▇▇▇ Systems will
provide to CalPX each month in support of its charges under this Agreement,
including reimbursable expenses. Upon notice from CalPX, ▇▇▇▇▇ Systems shall
provide CalPX and its representatives (collectively, the "CaIPX Auditors") with
access to such financial records and supporting documentation as may reasonably
be requested by the CalPX Auditors, and the CalPX Auditors may audit reasonably
appropriate books and records of ▇▇▇▇▇ Systems for the purpose of verifying that
any amounts charged under this Agreement with respect to the Services are
accurate and in accordance with this Agreement. If, as a result of such audit,
CalPX determines that ▇▇▇▇▇ Systems has overcharged or undercharged CalPX, CalPX
shall notify ▇▇▇▇▇ Systems of the amount of such overcharge or undercharge and
▇▇▇▇▇ Systems or CalPX, as the case may be, shall promptly pay the amount due.
In addition, if any such audit reveals an overcharge to CalPX of five percent or
more of the aggregate amount of the invoices audited, ▇▇▇▇▇ Systems shall
reimburse CalPX for the cost of such audit.
5.9 Pass-Through Expenses. ▇▇▇▇▇ Systems shall review all IT vendor
invoices for Pass- Through Expenses, including but not limited to invoices
relating to IT Procurement Services, to determine whether the charges reflected
in such invoices comply in all material respects with the applicable purchase
documentation or contract. After completing its review, ▇▇▇▇▇ Systems shall
submit an invoice to CalPX for such IT vendor invoices, together with ▇▇▇▇▇
Systems' recommendation for payment, nonpayment, or partial payment, to CalPX
twice per month on or about the fifth and twentieth days of the month for
CalPX's review and payment. CalPX shall promptly review and pay the invoices
submitted to it (or advise ▇▇▇▇▇ Systems' Account Manager that an invoice is not
approved, with an explanation of the reasons for not approving the invoice).
5.10 Adjustment of Budget.
(a) During any 12-month period commencing as of the Effective
Date, CalPX may, in one or more installments, reduce the Baseline Budget (as
adjusted in accordance with Section 5.6) as of the beginning of such 12-month
period by a percentage
17
amount up to a percentage equal to the sum of (i) 5% (the "Reduction
Percentage"), plus (ii) the aggregate number of percentage points, if any, for
all of the unused portions of the Reduction Percentages with respect to all
previous 12-month periods, provided that CalPX may not exercise such right to
reduce the Baseline Budget until after the Transition Period and Required
Improvements are completed. If during any three calendar month period commencing
after the Transition Period and the Required Improvements are completed the
average number of transactions settled through CalPX's settlement system during
such three-month period is less than 50% of the average number of transactions
settled through CalPX's settlement system during the Transition Period, CalPX
and ▇▇▇▇▇ Systems shall negotiate appropriate adjustments to the Baseline
Budget, the number of Full-Time Equivalent PSC Personnel providing Core
Services, the Service Levels, and Schedule 7.8 provided that the reduction in
the number of transactions settled is the result of circumstances outside
CalPX's reasonable control.
(b) If CalPX elects to reduce the Baseline Budget as provided in Section
5.10(a), CalPX shall give ▇▇▇▇▇ Systems at least (i) 90 days prior written
notice of any budget reduction of 5% or less of the applicable Baseline Budget,
(ii) 135 days prior written notice of any budget reduction of 5% to 10% of the
applicable Baseline Budget, and (iii) 180 days prior written notice of any
budget reduction of more than 10% of the applicable Baseline Budget. On the
effective date of any reduction in the Baseline Budget, ▇▇▇▇▇ Systems shall have
the right to reduce the number of Full-Time Equivalent PSC Personnel performing
Core Services under this Agreement, and ▇▇▇▇▇ Systems and CalPX shall adjust the
Service Levels and Schedule 7.8 as appropriate to reflect the staffing
adjustments.
5.11 No Other Charges. There shall be no other charges payable by CalPX other
than those stated in this Article 5, Schedule 5.1 and Schedule 5.2.
5.12 Fee Disputes.
(a) Within 30 days after receiving each invoice, CalPX shall give notice
to ▇▇▇▇▇ Systems of any amount shown in such invoice that is reasonably disputed
in good faith by CalPX, which notice shall include a reasonably detailed
explanation of the disputed amount and the grounds for the dispute. CalPX's
failure to pay amounts disputed in accordance with this Section 5.12 shall not
be grounds for a claim of breach or suspension of work by ▇▇▇▇▇ Systems so long
as CalPX complies with the provisions of Section 5.12(b). CalPX shall pay any
amounts to ▇▇▇▇▇ Systems within five business days after such amounts are found
to be payable to ▇▇▇▇▇ Systems. If the aggregate disputed invoiced amounts
exceed $120,000, then CalPX shall pay all such disputed amounts, on or before 30
days after giving notice of dispute, into escrow in a major United States
commercial bank with which neither party has significant dealings, with interest
to be allocated to the party entitled to
18
the principal upon resolution of the dispute, which dispute shall be
resolved through good faith negotiation or otherwise in accordance with Article
7.
5.13 Proration. All periodic fees under this Agreement are to be computed on a
calendar month basis and shall be prorated for any partial month.
5.14 Unused Credits. Any unused credits against future payments owed to either
party by the other pursuant to this Agreement shall be paid to the applicable
party within 30 days after the expiration or termination of this Agreement.
5.15 Retention of Records. ▇▇▇▇▇ Systems shall retain records and supporting
documentation sufficient to document the Services and the fees paid or payable
by CalPX under this Agreement for a period of seven years after the expiration
or termination of this Agreement.
Article 6
Confidentiality, Proprietary Rights and Audit Rights
6.1 CalPX Data.
(a) All data and information (i) provided by or on behalf of CalPX to
▇▇▇▇▇ Systems in connection with the Services, (ii) obtained, developed or
produced by ▇▇▇▇▇ Systems as part of the Services, or (iii) to which ▇▇▇▇▇
Systems has access as a result of providing the Services ("CaIPX Data") shall
remain the property of CalPX or the third party that owns such data and
information. ▇▇▇▇▇ Systems shall use such CaIPX Data solely in connection with
the activities contemplated by this Agreement. The CalPX Data shall be treated
as Confidential Information of CalPX under the Agreement. ▇▇▇▇▇ Systems hereby
irrevocably assigns, transfers and conveys, and shall cause all PSC Personnel to
assign, transfer and convey, to CalPX without further consideration all of its
and their right, title and interest in and to the CalPX Data.
(b) At ▇▇▇▇▇ Systems' expense, ▇▇▇▇▇ Systems shall promptly correct any
errors or inaccuracies in the CalPX Data and the reports delivered to CalPX
under this Agreement, to the extent caused by ▇▇▇▇▇ Systems. At CalPX's request
and expense, ▇▇▇▇▇ Systems shall promptly correct any other errors or
inaccuracies in the CalPX Data or such reports.
(c) Upon request by CalPX at any time during the Term and upon expiration
or termination of the Agreement, ▇▇▇▇▇ Systems shall (1) promptly return to
CalPX in the format and on the media requested by CalPX, all or any part of the
CaIPX Data and (2) erase or destroy all or any part of the CaIPX Data in ▇▇▇▇▇
System's possession, in each case to the extent so requested by CalPX, except
for (i) archive and backup copies that are not readily accessible for use, and
(ii) business records required by law to be
19
retained by ▇▇▇▇▇ Systems. Any archival and backup tapes containing CalPX Data
shall be deemed Confidential Information of CalPX and subject to the provisions
of Article 6 and shall be used by ▇▇▇▇▇ Systems only for back-up and audit
purposes.
6.2 Confidential Information.
(a) Confidential Information. Each receiving party shall use at least the
same degree of care, but no less than a reasonable degree of care, to avoid
unauthorized disclosure or use of each disclosing party's Confidential
Information, including any third party Confidential Information disclosed by the
disclosing party, as it employs with respect to its own Confidential Information
of similar importance. Each receiving party may disclose Confidential
Information only to the other party to this Agreement and its own officers,
directors, and employees and to its consultants, subcontractors and advisors who
reasonably need to know it. Each receiving party shall be responsible to the
disclosing party for any violation of this Agreement by its officers, directors,
employees, consultants, subcontractors or advisors. No receiving party may print
or copy, in whole or in part, any documents or other media containing a
disclosing party's Confidential Information, other than copies for its officers,
directors, employees, consultants or advisors who are working on the matter,
without the prior consent of the disclosing party. No receiving party may use a
disclosing party's Confidential Information for competing with the disclosing
party or for any purpose not in furtherance of this Agreement. The term
"Confidential Information" is defined to mean, with respect to CalPX and ▇▇▇▇▇
Systems, all information, documents, records and data, in whatever form or
medium (including, without limitation, (i) verbal statements summarized in
writing within 10 business days, (ii) printed and electronic forms, (iii)
handwritten notes or summaries, (iv) portions of any such items) regarding each
other party's (a "disclosing party") methodologies, financial affairs, business
activities and plans and records identified as confidential in CalPX's tariff,
operating manual and Records Availability Policy communicated by a disclosing
party to a receiving party.
(b) Certain Permitted Disclosures. Each of ▇▇▇▇▇ Systems and CalPX shall,
however, be permitted to disclose relevant aspects of the other party's
Confidential Information to its respective officers, agents, subcontractors and
employees to the extent that such disclosure is reasonably necessary for the
performance of its duties and obligations under this Agreement; provided,
however, that such party shall take reasonable measures to prevent, and shall
remain responsible for, the disclosure of Confidential Information of the other
party in contravention of the provisions of this Agreement by such officers,
agents, subcontractors (except as otherwise specifically provided in this
Agreement) and employees.
(c) Disclosures Required by Law. If a receiving party is requested, as
part of an administrative or judicial proceeding, to disclose any of a
disclosing party's
20
Confidential Information, the receiving party shall, to the extent permitted by
applicable law, promptly notify the disclosing party of such request and
cooperate with the disclosing party in seeking a protective order or similar
confidential treatment for such Confidential Information. The seeking of
protective orders shall be at the expense of the party whose Confidential
Information is at issue.
(d) Exclusions. Confidential Information shall not include information that (1)
was known by the receiving party without an obligation of confidentiality prior
to its receipt from the disclosing party, (2) is independently developed by the
receiving party without reliance on Confidential Information, (3) is or becomes
publicly available without a breach of this Agreement by the receiving party,
(4) is disclosed to the receiving party by a third person who is not required to
maintain its confidentiality, or (5) is required to be disclosed by reason of
legal, accounting or regulatory requirements beyond the reasonable control of
the receiving party.
(e) Obligations upon Termination or Expiration. Promptly after the expiration or
termination of this Agreement, except as provided in Section 6.5 with respect to
the Developed Software, each receiving party shall return or, with the consent
of the disclosing party, destroy all of the disclosing party's Confidential
Information, including any third party Confidential Information in the hands of
either party, except for (i) archive and backup copies that are not readily
accessible for use, and (ii) business records required by law to be retained by
the receiving party.
21
(f) Certain Privileged Information. ▇▇▇▇▇ Systems acknowledges that CalPX
may assert that certain documents, data and databases created by ▇▇▇▇▇ Systems
as part of the Operations Services provided under this Agreement and all
communications related thereto (collectively, "Privileged Work Product") are
subject to certain privileges under applicable law, including the
attorney-client privilege, and may seek to protect such Privileged Work Product
from disclosure by Rule 26 of the Federal Rules of Civil Procedure or other
applicable rules or laws. CalPX shall notify ▇▇▇▇▇ Systems of any Privileged
Work Product to which ▇▇▇▇▇ Systems has or may have access. After ▇▇▇▇▇ Systems
receives such notice, ▇▇▇▇▇ Systems shall use reasonable commercial efforts to
limit access to such Privileged Work Product solely to those PSC Personnel for
whom such access is required to fulfill ▇▇▇▇▇ Systems' obligations under this
Agreement. If ▇▇▇▇▇ Systems is requested to provide any third party with access
to Privileged Work Product, ▇▇▇▇▇ Systems shall, to the extent permitted by
applicable law, promptly notify CalPX and take, at CalPX's expense, such
reasonable actions as may be requested by CalPX to resist providing such access.
▇▇▇▇▇ Systems shall have the right, at CalPX's expense, to retain independent
legal counsel in connection with any such request. If ▇▇▇▇▇ Systems is
ultimately required, pursuant to an order of a court or other authority
reasonably believed by ▇▇▇▇▇ Systems to be of competent jurisdiction, to
disclose Privileged Work Product, ▇▇▇▇▇ Systems shall have no liability under
this Agreement in connection with such disclosure.
(g) Internal Audits. ▇▇▇▇▇ Systems may periodically perform, or cause to
be performed, internal compliance reviews of its activities under this
Agreement. The specific findings of these reviews other than those performed
under this Agreement, whether performed by ▇▇▇▇▇ Systems or a third person,
shall be deemed Privileged Work Product and ▇▇▇▇▇ Systems shall not be required
to disclose such findings to CalPX under any circumstances.
6.3 CalPX Proprietary Software. CalPX Proprietary Software shall be and remain
the property of CaIPX, and ▇▇▇▇▇ Systems shall have no rights or interests
therein except as required to perform the Services or as otherwise provided in
this Agreement.
6.4 ▇▇▇▇▇ Systems Software and ▇▇▇▇▇ Systems Tools.
(a) Any software that is proprietary to ▇▇▇▇▇ Systems that ▇▇▇▇▇ Systems
uses or to which ▇▇▇▇▇ Systems provides CaIPX access ("▇▇▇▇▇ Systems Software")
and any tools or methodologies which are proprietary to ▇▇▇▇▇ Systems and used
in connection with the activities contemplated by this Agreement ("▇▇▇▇▇ Systems
Tools"), including any modifications to any ▇▇▇▇▇ Systems Software or ▇▇▇▇▇
Systems Tools, shall be and remain the property of ▇▇▇▇▇ Systems, and CalPX
shall have no rights or interests therein, except as otherwise provided in this
Agreement.
22
(b) ▇▇▇▇▇ Systems shall provide CalPX, Affiliates of CalPX and CalPX
Partners with access to the ▇▇▇▇▇ Systems Software, ▇▇▇▇▇ Systems Tools and
▇▇▇▇▇ Systems' Third Party Software and Third Party Tools used in connection
with the Services during the Term to the extent such access is necessary for
CalPX or its Affiliates to receive the Services. Upon request, CalPX shall have
the right to approve the ▇▇▇▇▇ Systems Software, ▇▇▇▇▇ Systems Tools and Third
Party Software and Third Party Tools prior to their use by ▇▇▇▇▇ Systems in
connection with the Services.
(c) Upon termination or expiration of this Agreement, at the request of
CaIPX, ▇▇▇▇▇ Systems shall grant to CaIPX, Affiliates of CalPX and CalPX
Partners, and the first successor provider of the Services, a license to access,
use, operate, modify and enhance for CalPX or its Affiliate's business
operations any ▇▇▇▇▇ Systems Software or ▇▇▇▇▇ Systems Tools then being used to
provide the Services at ▇▇▇▇▇ Systems' then prevailing commercial rates and
terms, provided that ▇▇▇▇▇ Systems shall not be obligated to grant any license
rights with respect to any such software and tools to Electronic Data Systems
Corporation, Computer Sciences Corporation, ▇▇▇▇▇▇▇▇ Consulting LLP or any of
their Affiliates for any period in excess of 180 days.
(d) At the request of CalPX, ▇▇▇▇▇ Systems will use commercially
reasonable efforts to obtain for CalPX, Affiliates of CalPX and CalPX Partners,
and the first successor provider of the Services, after the expiration or
termination of the Agreement license rights from the applicable third parties to
access, use, operate, modify and enhance any Third Party Software and Third
Party Tools being used by ▇▇▇▇▇ Systems to provide the Services as of expiration
or termination of this Agreement.
6.5 Rights in Developed Software.
(a) Except as otherwise agreed in this Article 6, CalPX shall acquire all
right, title and interest in and to all Work Product produced under this
Agreement, including but not limited to all trade secrets, copyrights, patents
and other intellectual property rights in and to such Work Product. Except as
otherwise agreed in this Article 6, ▇▇▇▇▇ Systems hereby irrevocably assigns,
transfers and conveys, and shall cause all PSC Personnel to assign, transfer and
convey, to CalPX without further consideration all of its and their right, title
and interest in and to such Work Product. ▇▇▇▇▇ Systems acknowledges, and shall
cause all PSC Personnel to acknowledge, that CalPX and the successors and
permitted assigns of CalPX shall have the right to obtain and hold in their own
name the intellectual property rights referred to above in and to such Work
Product including all rights of patent, copyright, trade secret or other
proprietary rights. ▇▇▇▇▇ Systems agrees to execute, and shall cause all PSC
Personnel to execute, any documents or take any other actions as may reasonably
be necessary, or as CalPX may reasonably request, to perfect or register CalPX's
ownership of any such Work Product.
23
(b) All ▇▇▇▇▇ Developed Software and related Documentation shall be owned
by ▇▇▇▇▇ Systems. To the extent that any of the ▇▇▇▇▇ Developed Software
and related Documentation is deemed a "work for hire" by operation of
law, except as otherwise provided in this Article 6, CalPX hereby
assigns, transfers and conveys, and shall cause CalPX Affiliates and
agents to assign, transfer and convey, to ▇▇▇▇▇ Systems without further
consideration all of its and their right, title and interest in and to
such ▇▇▇▇▇ Developed Software and related Documentation including all
rights of patent, copyright, trade secret or other proprietary rights.
CalPX acknowledges that ▇▇▇▇▇ Systems and the successors and permitted
assigns of ▇▇▇▇▇ Systems shall have the right to obtain and hold in their
own names such intellectual property rights in and to the ▇▇▇▇▇ Developed
Software and related Documentation. CalPX agrees to execute any documents
or take any other actions as may be necessary, or as ▇▇▇▇▇ Systems may
reasonably request, to perfect ▇▇▇▇▇ Systems' ownership of or register
such intellectual property rights in any ▇▇▇▇▇ Developed Software and
related Documentation.
(i) Unless otherwise agreed in this Article 6, ▇▇▇▇▇ Systems shall grant
and hereby does grant to CalPX, subject to the terms of this Article 6 and the
terms and conditions of any license or similar agreement relating to third party
Embedded Software, a fully paid-up, worldwide, non-exclusive, non- transferable
(except as provided in this Agreement) and perpetual license to use, copy,
maintain, and modify the ▇▇▇▇▇ Developed Software, Embedded Software and related
Documentation for CalPX's use in connection with its own operations. For
purposes of this Section 6.5, CalPX's operations shall include the operations of
any Affiliate of CalPX and other third parties (i) to whom CalPX provides
services in addition to any sublicense of software; or (ii) in whom CaIPX has an
ongoing equity interest ("Ca1PX Partners"). CalPX shall be permitted to
sublicense such rights to its Affiliates and CalPX Partners. The license granted
in this paragraph shall include a non- transferable (except as provided in the
Agreement) and perpetual license to use and practice any and all inventions of
▇▇▇▇▇ Systems embedded in any ▇▇▇▇▇ Developed Software, Embedded Software or
related Documentation (including those covered by patents and patent
applications at any time).
(ii) ▇▇▇▇▇ Systems shall provide CalPX with one or more copies of the
source code, source code documentation, and other documentation that is
reasonably necessary to enable CalPX to enjoy the benefits of the license
granted in this Article 6.
(iii) Unless otherwise specifically agreed in writing by CalPX, ▇▇▇▇▇
Systems shall not license or otherwise use, copy, maintain or modify, or
authorize any third party to use, copy, maintain or modify Work Product that is
prepared under this Agreement to provide or market electricity services in any
Restricted Territory (defined below), during the period while the Work
24
Product is being developed and for a period of one (1) year
following the expiration or termination of this Agreement. For purposes of this
paragraph, the term "Restricted Territory" means the geographic region covered
on the Effective Date by the Western Systems Coordinating Council (WSCC), the
Electric Reliability Council of Texas (ERCOT), or the Southwest Power Pool
(SPP).
(c) The term "Embedded Software" is defined to mean pre-existing software
that is licensed by CalPX or ▇▇▇▇▇ Systems from a third party or owned by ▇▇▇▇▇
Systems that is embedded in or is necessary to operate the Developed Software.
▇▇▇▇▇ Systems shall retain its rights to any Embedded Software that is owned by
▇▇▇▇▇ Systems, but grants to CalPX the license rights referred to in paragraph
(b) above, provided that if any Embedded Software is owned by a third party,
then the terms of the applicable license shall define each party's rights to
such Embedded Software.
6.6 Know-How.
(a) CalPX acknowledges that, prior to the Effective Date, ▇▇▇▇▇ Systems
has acquired, conceived, developed or licensed, and after the Effective Date
shall continue (both independently and as a result of performing services under
this Agreement) to acquire, conceive, develop or license, certain architectures,
concepts, industry knowledge, techniques and template works of authorship which
embody copyrights, inventions, trade secrets and other intellectual property
(collectively, "Know-How") relating to the types of services to be performed for
CalPX under this Agreement. CalPX desires ▇▇▇▇▇ Systems to apply its Know-How in
connection with the Services, and acknowledges that performance of the Services
shall enhance and expand the Know- How. Accordingly, ▇▇▇▇▇ Systems may (1)
develop or distribute products or perform services similar to the Work Product
(including the Deliverables and the Documentation), and (2) use its Know-How to
develop or distribute products or to perform services for any other person,
provided that (i) no such activity violates the other provisions of this Article
6, (ii) the Know-How does not contain any Confidential Information of CalPX and
(iii) use of the Know-How does not misappropriate any trade secret rights or
infringe upon any other copyright, patent or other proprietary rights of CalPX.
To the extent necessary to enjoy the rights described in this Section 6.6, ▇▇▇▇▇
Systems shall retain, whenever intellectual property rights are assigned to
CalPX under this Agreement, (i) a royalty-free, perpetual, worldwide license to
use, modify and practice any and all inventions of PSC Personnel embedded in any
Work Product, ▇▇▇▇▇ Developed Software or related Documentation (including those
covered by patents and patent applications at any time) and (ii) the copyright
in any templates that form the basis for the Work Product (but not the copyright
in the Work Product derived from the template).
25
(b) ▇▇▇▇▇ Systems acknowledges that, prior to the Effective Date, CalPX
and its employees have acquired, conceived, developed or licensed, and after the
Effective Date shall continue to acquire, conceive, develop or license, certain
Know-How. ▇▇▇▇▇ Systems acknowledges and agrees that nothing in this Agreement
shall restrict in any manner the right of CalPX to use any such Know-How in any
manner.
6.7 Audit of CalPX's Business. ▇▇▇▇▇ Systems shall provide reasonable support to
CalPX in connection with an audit of CalPX's business as Additional Services.
▇▇▇▇▇ Systems shall not be obligated by this Agreement to disclose to CalPX or
any other person or entity any information which is not reasonably necessary to
conduct an audit of CalPX's business, nor shall ▇▇▇▇▇ Systems be obligated to
divulge any Confidential Information of ▇▇▇▇▇ Systems or any third party, except
as may be required under applicable law. In no event shall ▇▇▇▇▇ Systems be
obligated to disclose any Confidential Information to any competitor, or
Affiliate of a competitor, of ▇▇▇▇▇ Systems. CalPX may utilize third parties to
conduct such audit subject to such third party or parties entering into a
confidentially agreement reasonably satisfactory to CalPX and ▇▇▇▇▇ Systems.
6.8 Data Security. ▇▇▇▇▇ Systems shall establish and maintain mutually agreed
safeguards against the destruction, loss, or alteration of the CalPX Data in the
possession of ▇▇▇▇▇ Systems. ▇▇▇▇▇ Systems shall only have access to the CalPX
production data on an as-needed basis. In the event any PSC Personnel discover
or are notified of a material breach or potential material breach of security of
the CalPX Data, ▇▇▇▇▇ Systems shall immediately (1) notify the CalPX
Representative of the same and (2) if the CalPX Data was in the possession of
▇▇▇▇▇ Systems or PSC Personnel, as part of the Services, ▇▇▇▇▇ Systems shall
investigate the breach or potential breach. In addition, at CalPX's request,
▇▇▇▇▇ Systems shall promptly provide CalPX Data security reports to CalPX in a
form to be agreed upon by CalPX and ▇▇▇▇▇ Systems.
6.9 Safety and Security Procedures. ▇▇▇▇▇ Systems shall maintain and enforce
mutually agreed physical security standards and procedures at each of the
service locations and comply with CalPX environmental and physical security
procedures in effect at the CalPX service locations.
6.10 Security Relative To CalPX Competitors. If ▇▇▇▇▇ Systems intends to provide
the Services from a service location that is shared with (1) a third party or
(2) any part of the business of ▇▇▇▇▇ Systems that competes with the business of
CalPX, then, prior to providing any of the Services from such service location,
▇▇▇▇▇ Systems shall develop a process, subject to CalPXs prior approval, to
restrict access to the systems in any shared environment in a manner that
prevents persons other than PSC Personnel from having access to CalPX's
Confidential Information.
26
Article 7
Performance Review and Termination
7.1 Performance Review. The Account Manager and CalPX Representative shall meet
as often as reasonably requested by either party to review the performance of
the parties under this Agreement. Each party shall bear its own costs and
expenses incurred in connection with such review.
7.2 Dispute Resolution. If any continuing dispute between the parties is not
resolved after reasonable attempts to resolve such dispute are made by either
party, then, upon the written request of either party, each party shall appoint
an officer who does not spend most of his or her time on activities relating to
this Agreement, to meet with the other party's officer for the purpose of
resolving the dispute. The officers shall negotiate in good faith to resolve the
dispute without the necessity of any formal proceeding. During the course of
such negotiations, all reasonable requests made by one party to the other for
information shall be honored.
7.3 Arbitration. Any dispute that is not resolved through negotiation pursuant
to Section 7.2 shall be settled through mandatory binding arbitration in
accordance with the dispute resolution procedures described in Schedule 9 of
CalPX's Tariff and the CalPX's "Supplemental Procedures for California Power
Exchange Disputes", as shown in Schedule 7.3 (the Supplemental Procedures for
California Power Exchange Disputes) administered by the American Arbitration
Association, as amended from time to time (which tariff provisions are
incorporated into and made part of this Agreement as if set forth in full). Such
arbitration shall be final and binding in accordance with the following:
(a) American Arbitration Association Rules. Except as specified below or
otherwise agreed in writing, the arbitration shall be conducted in accordance
with the then- current Commercial Arbitration Rules of the American Arbitration
Association.
(b) Demands and Counterclaims. Any demand for arbitration or any
counterclaim shall specify in reasonable detail the facts and legal grounds
forming the basis for the claimant's request for relief, and shall include a
statement of the total amount of damages claimed, if any, and any other remedy
sought by the claimant.
(c) Panel and Location. The arbitration shall be conducted by an
arbitration panel consisting of a single neutral arbitrator selected in
accordance with those Commercial Arbitration Rules. The arbitration proceedings
shall take place in Los Angeles, California.
(d) Panel Actions. The arbitration panel may render awards of monetary
damages, direction to take or refrain from taking action, or both. However, the
arbitration panel may not award monetary damages in excess of the damages
allowed pursuant
27
to Article 8 or 9. The arbitration panel may, at its discretion, require
any party to the arbitration to reimburse any other party to the arbitration for
all or any part of the expenses of the arbitration paid by the other party and
the attorneys' fees and other expenses reasonably incurred by the other party in
connection with the arbitration. Judgement upon the award rendered in the
arbitration may be entered in any court of competent jurisdiction.
7.4 Termination for Cause. If either party (i) breaches any of its material
obligations under this Agreement (excluding CalPX's obligation to pay ▇▇▇▇▇
Systems) or (ii) repeatedly breaches any of its other obligations and the effect
of any such repeated breaches is material, and the breaching party fails to cure
any such breach within 30 days (or such longer period, not to exceed 60 days, if
such breach can not be reasonably cured within such 30 day period and the
breaching party commences to cure such breach upon receipt of notice and
diligently pursues a cure for such breach) after receipt of written notice from
the other party identifying such breach, then the nonbreaching party may
terminate this Agreement by providing the breaching party with prior written
notice of termination.
7.5 Termination for Non-Payment. If CalPX fails to pay ▇▇▇▇▇ Systems any
undisputed amounts due hereunder and fails to cure such nonpayment within 10
days after receipt of written notice from ▇▇▇▇▇ Systems identifying such
nonpayment, then ▇▇▇▇▇ Systems may terminate this Agreement by providing CalPX
with prior written notice of termination.
7.6 Termination for Insolvency. ANY LICENSE CONTEMPLATED BY THIS AGREEMENT SHALL
BE DEEMED AN EXECUTORY CONTRACT UNDER SECTION 365(n) OF TITLE 11 TO THE U.S.
BANKRUPTCY CODE AND SHALL REMAIN IN FULL FORCE AND EFFECT UPON THE LICENSEE'S
ELECTION AND THE LICENSEE'S SUBSTANTIAL PERFORMANCE HEREUNDER, NOTWITHSTANDING
ANY BANKRUPTCY OR INSOLVENCY OF THE LICENSOR. If either party is unable to pay
its debts generally as they come due or is declared insolvent or bankrupt, is
the subject of any proceedings relating to its liquidation, insolvency or for
the appointment of a receiver or similar officer for it, makes an assignment for
the benefit of all or substantially all of its creditors, or enters into an
agreement for the composition, extension or readjustment of all or substantially
all of its obligations, then the other party may, by giving prior written notice
thereof to such party, terminate this Agreement as of a date specified in such
notice of termination.
7.7 Termination for Convenience.
(a) CalPX may terminate this Agreement for convenience effective as of
any time after the second anniversary of the Effective Date by (i) giving ▇▇▇▇▇
Systems notice of the termination at least 180 days prior to the termination
date specified in the notice, and (ii) paying a termination fee in accordance
with this Section 7.7 in the event the date of termination is a date prior to
the end of the Initial Term.
28
(b) The aggregate termination fee payable by CaIPX in the event of
a termination for convenience pursuant to this Section 7.7 prior to the end of
the Initial Term shall equal an amount equal to $6,575.34 times the number of
calendar days remaining between the termination date and the end of the Initial
Term. Fifty percent of such termination fee shall be payable 90 days following
delivery of such termination notice, and shall be paid in accordance with
Section 5.7. The remaining 50% shall be due on the termination date and shall be
paid in accordance with Section 5.7. In the event of an extension of this
Agreement beyond the Initial Term, the parties shall negotiate the availability
of a termination for convenience right and any related fee, if any.
(c) If CalPX exercises its right under this Section 7.7, ▇▇▇▇▇
Systems shall, not later than 60 days after the termination date, invoice CalPX
for the Make-Whole Costs and CalPX shall pay the Make-Whole Costs within 30 days
after receiving the invoice. For purposes of this Section 7.7, "Make-Whole
Costs" means all reasonable out-of-pocket direct costs and expenses resulting
from the early termination of this Agreement, such as and by way of example
only: (i) equipment lease termination penalties, prorated over a period of the
lesser of the Term or the entire lease term during the Term, and (ii)
unamortized equipment and software costs (subject to CalPX's right to elect to
take delivery or transfer of such equipment or software at ▇▇▇▇▇ Systems' then
book value), less (iii) any savings realized by ▇▇▇▇▇ Systems in connection with
CalPX's exercise of its rights under this Section 7.7. Each party will use
reasonable commercial efforts, and will cooperate with the other party or its
designee, to minimize the Make-Whole Costs.
7.8 Termination for Causing Failure of Critical Services. If ▇▇▇▇▇ Systems (1)
as a result of a breach of its obligations under this Agreement causes the
failure of any specific Critical Service described in Schedule 7.8 and (2) does
not cure such failure with a permanent solution within the number of hours
identified in Schedule 7.8 as the applicable cure period, after receipt of a
notice from CalPX with respect to such failure, more than the number of
disruptions in a six month time period set forth in Schedule 7.8 for that
Critical Service, then CalPX may, upon notice to ▇▇▇▇▇ Systems, terminate this
Agreement, in whole or in part, as of the termination date specified in the
notice. For the purposes of this Section 7.8, such failures caused by ▇▇▇▇▇
Systems shall not be counted as a disruption (i) during the Transition Period,
(ii) prior to the date a disaster recovery solution is completed, (iii) to the
extent the failure of a Critical Service is caused by the failure to complete
all Required Improvements, (iv) in connection with any failure caused by a
server that has not had its scheduled maintenance window made available by CalPX
during the 30 day period prior to the disruption, (v) if ▇▇▇▇▇ Systems'
inability to cure the failure is caused by any third party's failure or
inability to provide software, hardware or services necessary for ▇▇▇▇▇ Systems
to cure the failure, (vi) in connection with any failure of a Critical Service
caused by the installation of new hardware or software that occurs within 30
days after such installation, or (vii) in connection with any failure to provide
a Critical Service caused by a Force Majeure Event.
29
7.9 Force Majeure Termination Provision. If any Force Majeure Event prevents,
hinders or delays performance of the Services for seven days, in the case of
Critical Services, or more than 30 days, in the case of all other Services,
CalPX may procure such Services from an alternate source. If the Force Majeure
Event continues to prevent, hinder or delay performance of the Services for more
than 30 days, in the case of Critical Services, or more than 45 days, in the
case of all other Services, and CalPX can obtain such Services from a third
party, then CalPX may terminate this Agreement, in whole or in part, as of a
date specified by CalPX in a termination notice to ▇▇▇▇▇ Systems. If CalPX
terminates this Agreement pursuant to this Section 7.9, such termination will be
CalPX's sole remedy, and ▇▇▇▇▇ Systems shall have no liability for damages or
otherwise to CalPX, in connection with the unavailability of any Services as a
result of any of the designated Force Majeure Events.
7.10 Continuity of Services. ▇▇▇▇▇ Systems acknowledges that the timely and
complete performance of its obligations pursuant to this Agreement is critical
to the business and operations of CalPX. Accordingly, in the event of a dispute
between CalPX and ▇▇▇▇▇ Systems, ▇▇▇▇▇ Systems shall continue to so perform its
obligations under this Agreement in good faith during the resolution of such
dispute unless and until this Agreement is terminated in accordance with the
provisions hereof so long as CalPX continues to comply with the terms of Article
5.
7.11 Transition Obligations.
(a) Transition Assistance. During the Transition Assistance Period
(hereinafter defined), ▇▇▇▇▇ Systems shall provide to CalPX the Transition
Assistance described below as reasonably requested by Ca1PX ("Transition
Assistance"). The term "Transition Assistance Period" is defined as (i) if this
Agreement expires under Section 1.3, the six month period after the expiration
date or termination date, as the case may be, or (ii) if this Agreement is
terminated under Sections 7.4, 7.5,7.6, 7.7, 7.8 or 7.9 the period beginning on
the date on which a notice of termination is delivered by either party through
the termination date or, upon CalPX's written request prior to the termination
date, through the date six months after the termination date. The Transition
Assistance to be provided to CalPX by ▇▇▇▇▇ Systems shall consist of the
following:
(i) Continuing to perform any or all of the Services then being performed
by ▇▇▇▇▇ Systems.
(ii) Working with CalPX to develop a plan for the transition of services
from ▇▇▇▇▇ Systems to CalPX or another third party provider.
(iii) Providing training for personnel of CalPX in the performance of the
Services then being transitioned to CalPX.
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(iv) With respect to any equipment owned by ▇▇▇▇▇ Systems and used solely
to perform the Services, CalPX may purchase any such equipment at
▇▇▇▇▇ Systems' then-current book value on an "as is -- where is"
basis. With respect to any equipment leased by ▇▇▇▇▇ Systems and
used solely to perform the Services, subject to the terms of any
applicable lease, ▇▇▇▇▇ Systems shall assign to CalPX ▇▇▇▇▇ Systems'
rights and obligations with respect to any such equipment leased by
▇▇▇▇▇ Systems; provided, however, that the lessor under the lease
agrees to release ▇▇▇▇▇ Systems from all liability under the lease
as of the date of assignment.
(v) With respect to any third party services acquired by ▇▇▇▇▇ Systems
and used solely to perform the Services, subject to the terms of any
applicable third party services agreement, ▇▇▇▇▇ Systems shall
assign to CalPX ▇▇▇▇▇ Systems' rights and obligations with respect
to any such third party services used by ▇▇▇▇▇ Systems; provided,
however, that such third party service provider under the third
party service agreement agrees to release ▇▇▇▇▇ Systems from all
liability arising under the third party service agreement after the
date of assignment.
(vi) Returning CalPX Proprietary Software, delivering and installing
software and tools licensed to CalPX by ▇▇▇▇▇ Systems, delivering
and installing Developed Software and Work Product, delivering CalPX
Data in a format specified by CalPX and cooperating with CalPX and a
successor third party service provider.
(vii) CalPX shall have the opportunity to offer employment to Transitioned
Employees and any replacements for the Transitioned Employees and
any other PSC Personnel who are providing Services to CalPX upon
expiration or termination of this Agreement. ▇▇▇▇▇ Systems shall
provide CalPX with reasonable access to such PSC Personnel to enable
CalPX to meet with, solicit and hire such PSC Personnel. ▇▇▇▇▇
Systems shall waive any non- competition or similar provisions of
any agreements or benefit plans that may prevent or inhibit the PSC
Personnel from being hired by CalPX, except that ▇▇▇▇▇ Systems shall
have no obligation to modify vesting, participation or similar terms
in any stock option agreements or stock purchase program agreements.
(b) Payment for Transition Assistance. CalPX shall pay ▇▇▇▇▇ Systems for such
Transition Assistance on a time and materials basis at ▇▇▇▇▇ Systems'
then-standard commercial billing rates (less a discount of 25% in the case
of a termination under Sections 7.4, 7.6, 7.8 or 7.9) or on any other
mutually acceptable basis. Notwithstanding Section 5.8, CalPX shall pay
▇▇▇▇▇ Systems for any Transition Assistance in advance on the first day of
each month of the Transition Assistance Period an amount equal to ▇▇▇▇▇
Systems' reasonable estimate of the total amount
31
payable to ▇▇▇▇▇ Systems for such Transition Assistance for that month
adjusted, as necessary, to reflect the reconciliation based on the actual
charges for Transition Assistance provided during the prior month. ▇▇▇▇▇
Systems shall provide CalPX with an invoice each month evidencing the
estimate of the total amount payable to ▇▇▇▇▇ Systems for Transition
Assistance for the next month and a reconciliation with the actual charges
for the Transition Assistance provided to CalPX during the prior month.
7.12 Force Maieure. If and to the extent that a party's performance of any of
its obligations pursuant to this Agreement is prevented, hindered or
delayed by fire, flood, earthquake, elements of nature or acts of God,
acts of war, terrorism, riots, civil disorders, rebellions or revolutions,
or any other similar cause beyond the reasonable control of such party
(each, a "Force Majeure Event"), and such non-performance, hindrance or
delay could not have been prevented by reasonable precautions, then the
non-performing, hindered or delayed party shall be excused for such
non-performance, hindrance or delay, as applicable, of those obligations
affected by the Force Majeure Event for as long as such Force Majeure
Event continues and such party continues to use all commercially
reasonable efforts to recommence performance whenever and to whatever
extent possible without delay, including through the use of alternate
sources, workaround plans or other means. The party whose performance is
prevented, hindered or delayed by a Force Majeure Event shall immediately
notify the other party of the occurrence of the Force Majeure Event and
describe in reasonable detail the nature of the Force Majeure Event.
Article 8
Indemnities
8.1 Bodily Injury and Property Damage Indemnity.
(a) By ▇▇▇▇▇ Systems. ▇▇▇▇▇ Systems agrees to indemnify, defend and hold
harmless CalPX and its Affiliates from and against all Losses
arising out of or relating to the death or bodily injury of any
agent, employee, consultants, subcontractors, contractors, customer
or visitor or damage to property caused by the acts or omission of
▇▇▇▇▇ Systems.
(b) By CalPX. CalPX agrees to indemnify, defend and hold harmless ▇▇▇▇▇
Systems from and against all Losses arising out of or relating to
the death or bodily injury of any agent, employee, consultants,
subcontractors, contractors, customer or visitor or damage to
property caused by the acts or omission of CalPX.
32
8.2 Intellectual Property Indemnity.
(a) By ▇▇▇▇▇ Systems. ▇▇▇▇▇ Systems agrees, at its expense, to
indemnify, defend and hold harmless CalPX and its Affiliates from
and against any and all claims, damages, demands, liabilities, costs
and expenses, including reasonable attorneys' fees and expenses
("Losses") resulting from, arising out of or relating to any third
party claims brought against CalPX or its Affiliates alleging that
any Work Product, Developed Software, ▇▇▇▇▇ Systems Software, ▇▇▇▇▇
Systems Tools or the Services infringe a third person's copyright,
patent, trade secret or other intellectual property right (except as
may have been caused by CalPX, including any infringement caused by
any method or process required to meet the specifications as
requested by CalPX.)
(b) By CalPX. CalPX agrees, at its expense, to indemnify, defend and
hold harmless ▇▇▇▇▇ Systems from and against any Losses resulting
from, arising out of or relating to any third-party claims brought
against ▇▇▇▇▇ Systems alleging that ▇▇▇▇▇ Systems' use, in
accordance with the terms of this Agreement, of CalPX Proprietary
Software infringes a third person's copyright, trade secret, patent
or other intellectual property right (except as may have been caused
by ▇▇▇▇▇ Systems).
(c) Mitigation. Upon receiving notice of an infringement claim, the
indemnitor may, in its sole discretion, (i) modify the allegedly
infringing item to be non-infringing without materially impairing
its functionality, (ii) replace the allegedly infringing item with a
noninfringing item of substantially equivalent functionality, or
(iii) obtain for the indemnitee the right to continue to use the
item in accordance with the terms of this Agreement.
8.3 Employment Indemnity.
(a) Indemnification by ▇▇▇▇▇ Systems. ▇▇▇▇▇ Systems agrees to indemnify,
defend and hold harmless CalPX against any and all Losses arising
out of or relating to any Transitioned Employee, attributable to any
period commencing on or after the date on which such Transitioned
Employee accepts employment with ▇▇▇▇▇ Systems and arising out of
▇▇▇▇▇ Systems' employment of that Transitioned Employee, including
without limitation claims relating to salary, employee benefits,
employment taxes and other payments in connection therewith, but
excluding claims relating to agreements, arrangements or commitments
made by CalPX with or to that Transitioned Employee.
(b) Indemnification by CalPX. CalPX agrees to indemnify, defend and hold
harmless ▇▇▇▇▇ Systems from any and all Losses arising out of or
relating to any Transitioned Employee or Non-Transitioned Employee,
attributable to any period during which such Transitioned Employee
or Non-Transitioned Employee was employed by
33
CalPX and arising out of CalPX's employment of that Transitioned
Employee or Non-Transitioned Employee, including without limitation
claims relating to salary, employee benefits, and other payments in
connection therewith, but excluding any claims relating to
agreements, arrangements, or commitments made by ▇▇▇▇▇ Systems with
or to that Transitioned Employee or Non-Transitioned Employee.
8.4 CalPX's Business Risk Indemnity. To the extent, and only to the extent,
CalPX's insurance carriers cover CalPX's obligations under this Section
8.4, CalPX shall indemnify, defend and hold ▇▇▇▇▇ Systems harmless from
any and all Losses resulting from, arising out of or relating to any third
party claims by CalPX's participants and vendors relating to any duties or
obligations of CalPX to such third parties.
8.5 Other ▇▇▇▇▇ Systems Indemnities. ▇▇▇▇▇ Systems agrees, at its expense, to
indemnify, defend and hold harmless CalPX from and against all Losses
resulting from, arising out or relating to any claims:
(a) relating to any duties or obligations of ▇▇▇▇▇ Systems or its agents
in respect of a third party or any subcontractor of ▇▇▇▇▇ Systems;
(b) relating to ▇▇▇▇▇ System's breach of Section 6.2; or
(c) relating to ▇▇▇▇▇ System's breach of Section 6.1.
8.6 Indemnification Procedures. With respect to third-party claims subject to
the indemnities set forth in this Article, the indemnitee shall notify the
indemnitor promptly of any matters in respect of which the foregoing
indemnity may apply and of which the indemnitee has knowledge and shall
give the indemnitor full opportunity to control the response thereto and
the defense thereof, including, without limitation, any agreement relating
to the settlement thereof, provided that the indemnitee shall have the
right to approve any settlement or any decision not to defend, which
approval shall not be unreasonably withheld. The indemnitee's failure to
promptly give notice shall affect the indemnitor's obligation to indemnify
the indemnitee only to the extent that the indemnitor's rights are
materially prejudiced thereby. The indemnitee may participate, at its own
expense, in any defense and any settlement directly or through counsel of
its choice. If the indemnitor elects not to defend, the indemnitee shall
have the right to defend or settle the claim as it may deem appropriate,
at the cost and expense of the indemnitor, which shall promptly reimburse
the indemnitee for such costs, expenses and settlement amounts.
34
Article 9
Liability
9.1 Limitation of Liabili. Each party's liability for damages under this
Agreement shall not exceed, in the aggregate, an amount equal to the
Service Fees actually paid by CalPX to ▇▇▇▇▇ Systems during the first nine
months after the Effective Date.
9.2 Limitation on Type of Damages. Each party shall only be liable for the
direct damages of the other party. The measure of damages payable by a
party shall not include, and a party shall not be liable for, any amounts
for the indirect, incidental, reliance, special, consequential (including
without limitation lost profits, income or revenue) or punitive damages of
the other party or any third parties, whether in tort or contract, and
whether or not such damages are foreseen or unforeseen.
9.3 Exclusions.
(a) The limitation or exculpation of liability set forth in Section 9.1
shall not apply to (i) a party's obligations to make payments to the
other party under Section 5 of this Agreement, or (ii) except for
indemnification claims under Section 8.1 relating to damage to data
or information, indemnification claims under Article 8.
(b) The limitation or exculpation of liability set forth in Section 9.2
shall not apply to (i) a party's obligations to make payments to the
other party under Section 5 of this Agreement, (ii) indemnification
claims under Article 8 for Losses that are (A) final judgments or
awards obtained by a third party against the indemnified party by a
court or arbitrator of competent jurisdiction and any settlements to
which the indemnifying party agrees in writing (which shall be
considered direct damages for purposes of this Agreement), or (B)
damages to tangible personal or real property (excluding any data or
information) or (iii) indemnification claims under Section 8.5.
9.4 Year 2000 Problems. Except as set forth in this Section 9.4, ▇▇▇▇▇ Systems
shall have no obligation under this Agreement to (i) identify, correct or
resolve or any problem caused by the failure of any CalPX Software, CaIPX
Vendor Software or CalPX Technology to record, store, process, or present
calendar dates falling on or after January 1, 2000, in the same manner,
and with the same functionality and accuracy, as performed on or before
December 31, 1999; (ii) provide a century indicator on all dates produced
therein as output or results from its operation; (iii) abnormally end or
generate an incorrect result when performing date calculations involving
either a single century or multiple centuries; (iv) sort all files in an
accurate sequence when sorted by date and read and write in an accurate
sequence when the date is used as the key for such reading or writing; and
(v) be capable of determining leap years. In addition, ▇▇▇▇▇ Systems shall
have no liability to CalPX for ▇▇▇▇▇ Systems' inability to perform its
obligations under this Agreement as a result of any failure of the type or
nature described above. Notwithstanding anything to the contrary in
35
this Section 9.4, upon request by CalPX, ▇▇▇▇▇ Systems shall assign PSC
Personnel to identify, correct or resolve Y2K problems provided that no
such actions shall materially affect the ability of ▇▇▇▇▇ Systems to
provide the Services.
Article 10
Warranty
10.1 By ▇▇▇▇▇ Systems. ▇▇▇▇▇ Systems warrants and covenants to CalPX that:
(i) the Services shall be performed by qualified personnel in a manner
consistent with good practice in the information technology services
industry; and
(ii) in providing the Services, ▇▇▇▇▇ Systems and the PSC Personnel shall
comply in all material respects with all federal, state, and local
laws and regulations that apply to, and obtain all material permits
and licenses that pertain to, the provision of the Services
generally.
If ▇▇▇▇▇ Systems breaches this Section 10. 1, it shall supply services to
correct or replace the work at no charge. THE REMEDY SET FORTH IN THIS
PARAGRAPH 10.1 IS CALPX'S EXCLUSIVE REMEDY FOR BREACH OF THE WARRANTY IN
SECTION 10.1 (i); PROVIDED THAT THE FORGOING SHALL NOT LIMIT ANY OTHER
RIGHT OR REMEDY OF CALPX IN RESPECT OF ANY OTHER BREACH OF ANY PROVISION
OF THIS AGREEMENT BY ▇▇▇▇▇ SYSTEMS.
10.2 By Each Party. Each party warrants that:
(a) it is a corporation duly incorporated, validly existing, and in good
standing under the laws of its state of incorporation,
(b) it has all requisite power and authority to execute, deliver, and
perform its obligations under this Agreement,
(c) the execution, delivery, and performance of this Agreement has been
duly authorized by such party and shall not conflict with, result in
a breach or constitute a default under any other agreement to which
it is a party,
(d) no approval, authorization, or consent of any governmental or
regulatory authority is required to be obtained or made by it in
order for it to enter into and perform its obligations under this
Agreement, and
(e) there is no outstanding litigation, arbitrated matter or other
dispute to which it is a party which, if decided unfavorably to it,
would reasonably be expected to have a material adverse effect on
its ability to fulfill its obligations under this Agreement.
36
10.3 Disclaimer of Warranty.
(a) IF ▇▇▇▇▇ SYSTEMS ACQUIRES ANY THIRD-PARTY SOFTWARE, HARDWARE OR
SERVICES FOR CALPX UNDER THIS AGREEMENT AT THE REQUEST OF CALPX,
▇▇▇▇▇ SYSTEMS SHALL PROVIDE SUCH THIRD-PARTY SOFTWARE, HARDWARE OR
SERVICES ON AN "AS IS" BASIS, BUT ▇▇▇▇▇ SYSTEMS SHALL USE REASONABLE
COMMERCIAL EFFORTS TO ASSIST CALPX IN ENFORCING ANY THIRD-PARTY
WARRANTY AND SHALL PASS THROUGH TO CALPX THE BENEFIT OF ANY SUCH
WARRANTY.
(b) EXCEPT AS MAY BE SPECIFICALLY PROVIDED IN THIS AGREEMENT, EACH PARTY
DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY
WARRANTY OF THE MERCHANTABILITY, SUITABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF ANY
RESOURCES, SERVICES OR MATERIALS PROVIDED PURSUANT TO THIS
AGREEMENT.
(c) ▇▇▇▇▇ SYSTEMS DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES THAT ANY
SERVICES PROVIDED UNDER THIS AGREEMENT SHALL IDENTIFY OR RESOLVE
CALPX'S YEAR 2000 PROBLEM AREAS. ▇▇▇▇▇ SYSTEMS SHALL NOT BE LIABLE
FOR ANY FAILURE TO IDENTIFY OR CORRECT CALPX'S YEAR 2000 PROBLEM
AREAS REGARDLESS OF THE FORM OF THE CLAIM, EXCEPT FOR ▇▇▇▇▇ SYSTEMS
OBLIGATIONS TO PROVIDE SERVICES DESCRIBED IN SECTION 9.4.
10.4 Certain Covenants.
(a) Viruses.
(i) Each party shall use reasonable commercial efforts to prevent
any software viruses or other surreptitious software codes
(collectively, "Virus") from being introduced into the
Systems. ▇▇▇▇▇ Systems shall evaluate, recommend and maintain
up-to-date, subject to CalPX's approval, virus detection and
removal products to be used in connection with the Systems, on
a mutually satisfactory periodic basis.
(ii) If a Virus is introduced into a System, each party shall use
reasonable commercial efforts to identify and neutralize such
Virus and to mitigate any adverse effect of such Virus, and
▇▇▇▇▇ Systems shall repair or restore, as soon as, and to the
extent, reasonably practicable any data, information or
Systems damaged by such Virus. The priority and intensity of
the efforts
37
undertaken by the parties to identify and neutralize the
Virus, and to repair or restore any affected data, information
or systems, shall be determined by CalPX based on its
evaluation of the situation, based on such factors as it deems
appropriate, including but not limited to, the number of sites
affected, the severity of the damage being caused, and the
relative importance of the Systems affected.
(b) ▇▇▇▇▇ Systems shall not, without the prior consent of CalPX,
intentionally introduce into any System or intentionally invoke any
code which is intended to disable or wrongfully impair or shut down
such System.
Article 11
Insurance
Insurance.
(a) Prior to the commencement of performance of Services under this
Agreement, ▇▇▇▇▇ Systems shall procure and maintain in full force
and effect during the Term of this Agreement, and any extension
hereof, the following insurance policies:
(i) Commercial general liability insurance with limits of at least
one million dollars ($ 1,000,000.00) combined single limits
per occurrence and general aggregate for (a) bodily injury and
property damage, (b) completed operations, (c) blanket
contractual, and (d) contractor's protective liability on such
terms and in such amounts as are satisfactory to CalPX.
(ii) Commercial automobile liability insurance policy with combined
single limits of $1,000,000 for bodily injury and property
damage for each occurrence, and with coverage for non-owned
vehicles.
(iii) Workers' Compensation in statutory required amounts under
applicable state Workers Compensation laws, and employers
liability insurance with a policy limit of at least $500,000 ;
and
(iv) Computer Services errors and omissions liability insurance
with limits of at least one million dollars ($1,000,000.00)
per claim and aggregate.
(b) The policies shall state that they afford primary coverage and the
commercial general liability and the commercial automobile liability
insurance shall name CalPX as an additional insured for loss or
liability pursuant to the above indemnity occurring during activity
or performance under this Agreement, including costs of defending
such claim.
(c) CalPX reserves the right to increase or decrease the coverage upon
giving thirty days written notice to ▇▇▇▇▇ Systems.
38
(d) ▇▇▇▇▇ Systems shall, within 15 days of the signing of this
Agreement, furnish to CaIPX certificates of insurance certifying the
above insurance coverage or renewals thereof. All insurance policies
shall bear endorsement providing that the policies cannot be
cancelled or materially restricted without 30 days prior written
notice to CalPX.
(e) In the absence of the required certificates of insurance evidencing
at least the minimum types and amounts of insurance, CalPX may, at
its option: (i) procure insurance with collection rights for
premiums, attorney's fees and costs against ▇▇▇▇▇ Systems by way of
set-off or recoupment from sums due ▇▇▇▇▇ Systems, at CalPX's
option; or (ii) terminate this Agreement under the terms of Section
7.4.
(f) The cost of all insurance shall be borne solely by ▇▇▇▇▇ Systems.
Article 12
Miscellaneous
12.1 Relationship of Parties.
(a) ▇▇▇▇▇ Systems is appointed by CalPX only for the purposes and to the
extent set forth in this Agreement, and ▇▇▇▇▇ Systems' relation to
CalPX shall, during the period covered by this Agreement, be that of
an independent contractor, and ▇▇▇▇▇ Systems does not have and shall
not have any power, and ▇▇▇▇▇ Systems shall not represent that ▇▇▇▇▇
Systems has any power, to bind CalPX, to assume or to create any
obligation or responsibility, express or implied, on behalf of CalPX
or in its name.
(b) ▇▇▇▇▇ Systems shall not be considered, under the provisions of this
Agreement or otherwise, as having an employee status or the status
of an agent or partner of CaIPX, and shall not be entitled to
participate in any plans, arrangements, or distributions by CalPX
pertaining to or in connection with any pension, stock, bonus,
profit sharing, health plans, or similar benefits for CalPX
employees. ▇▇▇▇▇ Systems shall meet all of its obligations and
responsibilities as an employer to its own employees under any
federal, state or local laws, regulations or order now or hereafter
in force, including those relating to taxes, unemployment
compensation or insurance, arising out of its engagement of persons
for the performance of or contribution to the Services performed
hereunder.
(c) No part of ▇▇▇▇▇ Systems' compensation shall be subject to
withholding by CalPX for the payment of social security,
unemployment, or disability insurance or any other similar state or
federal tax obligation. In the event CalPX is found to be so
39
liable for social security, unemployment, disability insurance or
other tax or withholding, CalPX shall have the right to recover an
equivalent amount, including any interest or penalties paid in
connection therewith, from ▇▇▇▇▇ Systems.
12.2 Notices. All consents, notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement
shall be in writing and may be given by any of the following methods:
(a) personal delivery, (b) facsimile transmission, (c) registered or
certified mail, postage prepaid, return receipt requested, or (d)
overnight delivery service. All such communications shall be sent to the
appropriate party at the following address or facsimile number (or to such
other address or facsimile number as that party may have specified by
notice given according to this Section).
If to ▇▇▇▇▇ Systems: With a copy to:
▇▇▇▇▇ Systems Corporation ▇▇▇▇▇ Systems Corporation
Attn: President Attn: General Counsel
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to CalPX:
California Power Exchange Corporation California Power Exchange Corporation
Attn: Chief Information Officer Attn: General Counsel
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
All such consents, notices, requests, demands, waivers and other
communications shall be deemed received upon (x) actual receipt by the
addressee, (y) actual delivery to the appropriate address or (z) in the
case of a facsimile transmission, upon transmission thereof by the sender
and issuance by the transmitting machine of a confirmation slip that the
number of pages constituting the notice has been transmitted without
error. In the case of notices sent by facsimile transmission, the sender
shall contemporaneously mail a copy of the notice to the addressee at the
address provided for above. However, such mailing shall in no way alter
the time at which the facsimile notice is deemed received.
12.3 Assignment. This Agreement may not be assigned by either party without the
written consent of the other party, except that (i) either party may
assign this Agreement to the surviving entity in connection with the
merger, consolidation, or sale of all or substantially all of the assets
of that party, (ii) CalPX may assign this Agreement in connection with a
corporate reorganization of CalPX or to any Affiliate of CalPX, so long as
CalPX remains responsible for the actions of such Affiliate and (iii)
▇▇▇▇▇ Systems may assign this Agreement to any Affiliate that is a
subsidiary of ▇▇▇▇▇ Systems organized within the United States or, with
the consent of CalPX, any other subsidiary of ▇▇▇▇▇ Systems, so long as
▇▇▇▇▇ Systems, in each case, remains responsible for (a) the actions of
such Affiliate and
40
(b) any additional costs or expenses arising out of or relating to any
such assignment by ▇▇▇▇▇ Systems. The consent of a party to any assignment
of this Agreement shall not constitute that party's consent to any other
assignment of this Agreement. This Agreement shall be binding on the
parties and their respective successors and permitted assigns. Any
assignment in contravention of this Section shall be void.
12.4 Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision shall be deemed restated to
reflect the original intentions of the parties as nearly as possible in
accordance with applicable law, and, if capable of substantial
performance, the remaining provisions of this Agreement shall be enforced
as if this Agreement was entered into without the invalid provision.
12.5 Captions. The captions used in this Agreement are for convenience of
reference only and do not constitute a part of this Agreement and shall
not be deemed to limit, characterize or in any way affect any provision of
this Agreement, and all provisions of this Agreement shall be enforced and
construed as if no caption had been used in this Agreement.
12.6 Modification; Waiver. This Agreement may be modified only by a written
instrument duly executed by or on behalf of each party. No delay or
omission by either party to exercise any right or power hereunder shall
impair such right or power or be construed to be a waiver thereof. A
waiver by either party of any of the obligations to be performed by the
other or any breach thereof shall not be construed to be a waiver of any
succeeding breach thereof or of any other obligation herein contained.
12.7 No Third-Party Beneficiaries. The parties agree that this Agreement is for
the benefit of the parties hereto and is not intended to confer any rights
or benefits on any third-party, including any employee of either party,
and that there are no third-party beneficiaries to this Agreement or any
part or specific provision of this Agreement.
12.8 Governing Law. The laws of the state of California, other than its rules
on conflicts of laws, shall govern the interpretation and construction of
this Agreement. The Uniform Electronic Transactions Act shall not apply to
this Agreement, and except as provided in Section 3.4(a), communications
sent by electronic means and electronic signatures shall not be effective
under this Agreement.
12.9 Consents. Approvals, Requests and Opinions. Except as specifically set
forth in this Agreement, all consents and approvals to be given or
opinions to be adopted by either party under this Agreement shall not be
unreasonably withheld or delayed and each party shall make only reasonable
requests and opinions under this Agreement.
12.10 Survival. The terms of Section 2.8(b), Section 2.9, Article 5 (with
respect to any amounts payable but not yet paid thereunder), Section 5.8,
Section 5.12, Section 5.15, Article 6,
41
Section 7.2, Section 7.3, Section 7.11, Article 8, Article 9, Section
10.1, Section 10.2, Section 10.3, and Article 12 shall survive the
expiration or termination of this Agreement.
12.11 Sole and Exclusive Venue. Each party irrevocably agrees that any legal
action, suit or proceeding or alternate dispute resolution brought by it
in any way arising out of this Agreement must be brought solely and
exclusively in the United States District Court for the Central District
of California, or in the state courts of the State of California for Los
Angeles County and irrevocably accepts and submits to the sole and
exclusive jurisdiction of each of the aforesaid courts in persona,
generally and unconditionally with respect to any action, suit or
proceeding brought by it or against it by the other party.
12.12 Covenant of Further Assurances. CalPX and ▇▇▇▇▇ Systems covenant and agree
that, subsequent to the execution and delivery of this Agreement and,
without any additional consideration, each of CalPX and ▇▇▇▇▇ Systems
shall execute and deliver any further legal instruments and perform any
acts that are or may become necessary to effectuate the purposes of this
Agreement.
12.13 Negotiated Terms. The parties agree that the terms and conditions of this
Agreement are the result of negotiations between the parties and that this
Agreement shall not be construed in favor of or against any party by
reason of the extent to which any party or its professional advisors
participated in the preparation of this Agreement.
12.14 Remedies Cumulative. Except as otherwise specified under this Agreement,
no specific remedy under this Agreement shall limit a party's right to
exercise all other remedies available to such party under law, in equity
or under this Agreement, and all such remedies shall be cumulative.
12.15 Conflict of Interest. Individual PSC Personnel who perform Services
regularly on a full time basis shall be deemed to be a "substantially full
time consultant" within the meaning of Section 1.1. of the Code of Conduct
and shall accordingly comply with the Code of Conduct. Such individual's
noncompliance with the Code of Conduct, whether with or without knowledge,
intentional or otherwise, shall constitute grounds to have such individual
removed from the CalPX account under Section 2.5.
12.16 Export. CalPX and ▇▇▇▇▇ Systems shall not knowingly export or re-export
any personal computer system, part, technical data or sub-elements under
this Agreement, directly or indirectly, to any destinations prohibited by
the United States Government. The term "technical data" in this context
means such data as is defined as technical data by applicable United
States export regulations.
12.17 Entire Agreement. This Agreement, including any Schedules referred to
herein and attached hereto, each of which is incorporated herein for all
purposes, constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and there are no representations,
understandings or agreements relative hereto which are not fully expressed
42
herein. No change, waiver, or discharge hereof shall be valid unless in
writing and signed by an authorized representative of the party against
which such change, waiver, or discharge is sought to be enforced.
12.18 Media Releases. All media releases, public announcements and public
disclosures by CalPX or ▇▇▇▇▇ Systems relating to this Agreement,
including without limitation, promotional or marketing material (but not
including any announcement intended solely for internal distribution
within CalPX or ▇▇▇▇▇ Systems, as the case may be, or any disclosure
required by legal, accounting or regulatory requirements beyond the
reasonable control of Ca1PX or ▇▇▇▇▇ Systems, as the case may be) shall be
coordinated with and approved by the other prior to the release thereof.
12.19 Task Order No. 5. The parties acknowledge and agree that after the
Effective Date, ▇▇▇▇▇ Systems shall have no further obligations to provide
any services under Task Order No. 5, Effective as of January 16, 1999,
between the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed and
delivered by their duly authorized representative as of the date first set forth
above.
CALIFORNIA POWER EXCHANGE ▇▇▇▇▇ SYSTEMS CORPORATION
CORPORATION
By: /s/ By: /s/
Name: Name:
Title: Title:
Date: Date:
43
SCHEDULE 1.1
Definitions
"AAA" has the meaning given this term in paragraph (a) of Schedule 7.3.
"Acceptance" has the meaning given this term in Part D, paragraph (b)(i) of
Schedule 3.1.
"Acceptance Period" has the meaning given this term in Part D, paragraph (b)(i)
of Schedule 3.1.
"Acceptance Test Plan" has the meaning given this term in Part D, paragraph
(b)(ii) of Schedule 3.1.
"Account Manager" has the meaning given this term in Section 2. 1.
"Additional Services" has the meaning given this term in Section 3.3.
"Affiliate" means, as to any entity, any other entity that, directly or
indirectly controls, is controlled by or is under common control with such
entity.
"Agreement" has the meaning given this term in the preamble to this Agreement.
"Agreement Date" has the meaning given this term in the preamble to this
Agreement.
"Applications" means the software programs that are operated by ▇▇▇▇▇ Systems
under this Agreement.
"Applications Development Services" means the services described in Part D,
paragraph (a) of Schedule 3.1.
"Applications Maintenance Services" means the services described in Part C,
paragraph (a) of Schedule 3.1.
"Base Index" has the meaning given this term in Section 5.6.
"Baseline Budget" has the meaning given this term in Section 5.3(a).
"Base Services" has the meaning given this term in Section 3. 1.
"Benchmark Information" has the meaning given this term in Section 3.12(c).
"Business Consulting" means the services described in Part E of Schedule 3.1.
"Calculated Services Fee" has the meaning given in Schedule 5. 1.
Schedule 1.1 -Page 1
"CalPX" has the meaning given this term in the preamble to this Agreement.
Whenever any Affiliate of CalPX receives Services under this Agreement, the
definition of "CalPX" shall be deemed to include such Affiliate.
"CalPX" Auditors" has the meaning given this term in Section 5.8.
"CalPX Data" has the meaning given this term in Section 6. 1.
"CalPX Developed Software" means any Deliverable that (i) contains a
modification to the source code of CalPX Proprietary Software, or (ii) contains
newly developed source code the functionality of which cannot reasonably be
separated from the functionality of the related CalPX Proprietary Software, and
any derivatives of such Deliverables.
"CalPX Partners" has the meaning given this term in Section 6.5(b)(i).
"CalPX Proprietary Software" has the meaning given this term in Section 4.2(a).
"CalPX Representative" has the meaning given this term in Section 2.6.
"CalPX Software" means CalPX Proprietary Software and CalPX Vendor Software.
"CalPX Technology" has the meaning given this term in Section 4.4.
"CalPX Vendor Software" has the meaning given this term in Section 4.2(b).
"Change" means a material addition to or modification in the scope or method of
providing a Service, including any material addition to or modification of the
requirements or specification of any Deliverable.
"Change Control Procedure" means the procedures specified in or developed in
accordance with Section 3.5 pursuant to which Changes to the Services shall be
authorized by the parties.
"Change Order" means a document executed by the parties that authorizes a
Change.
"Change Review Board" has the meaning given this term in Part A of Schedule 3.
1.
"Computer Operations Services" means the services described in Part B of
Schedule 3. 1.
"Confidential Information" has the meaning given this term in Section 6.2(a).
"Configuration Services" has the meaning given to this term in Part D, paragraph
(a) of Schedule 3.1.
"Core Applications" has the meaning given this term in Part C, paragraph (b) of
Schedule 3. 1.
Schedule 1.1 - Page 2
"Core Services" has the meaning given this term in Section 3. 1(a).
"Critical Services" has the meaning given this term in Schedule 7.8.
"Current Index" has the meaning given this term in Section 5.6.
"Defect" has the meaning given this term in Part D, paragraph (b)(ii) of
Schedule 3. 1.
"Defect Notice" has the meaning given this term in Part D, paragraph (B) of
Schedule 3. 1.
"Deliverable" means all works of authorship that are prepared for CalPX by ▇▇▇▇▇
Systems in connection with the Services. The Deliverables shall include all
reports, drawings, plans, specifications, computer disks, tapes, printouts,
studies, memoranda, computation sheets, and other information, documents,
records or data, in whatever form or medium that contain CalPX's Confidential
Information.
"Desktop Procurement Services" means the services that are generally described
in Paragraph 2 of Schedule 1.2.
"Desktop Support Services" means the services generally described in Paragraph 2
of Schedule 1.2.
"Developed Software" means any Deliverable that is a software program,
programming script or similar work of authorship.
"disclosing party" has the meaning given this term in Section 6.2(a).
"disruption" has the meaning given this term in Schedule 7.8.
"Documentation" means all manuals, specifications, literature (excluding
generalized product descriptions, advertising materials, and similar items), and
documentation including but not limited to flow diagrams, file descriptions,
codes, and other written information prepared by ▇▇▇▇▇ Systems for CalPX under
this Agreement.
"Effective Date" has the meaning given this term in Section 1.3.
"Embedded Software" has the meaning given this term in Section 6.5(c).
"Excluded Services" means the services described in Schedule 1.2.
"FERC" has the meaning given this term in paragraph I (a) of Schedule 7.3.
"FPA" has the meaning given this term in paragraph l(c) of Schedule 7.3.
Schedule 1.1 -Page 3
"Full-Time Equivalent" or "FTE" means the level of effort expended by an
individual performing his or her duties for approximately 160 hours per month,
12 months per year, less time off for vacation, holidays, illness, training and
other reasons (including short-term, unpaid marketing and proposal assignments
that do not materially and adversely affect any Services) consistent with ▇▇▇▇▇
Systems' human resources and benefits policies, provided that for PSC Personnel
assigned to perform Services under this Agreement for a committed duration of
one month or less, the actual time spent performing Services, pro-rated on a 160
hours per month basis, shall be used to determine the number of FTEs expended.
"Force Majeure Event" has the meaning given this term in Section 7.12.
"Improved Technology" has the meaning given this term in Section 3.8.
"Initial Term" has the meaning given this term in Section 1.3.
"ISO" has the meaning given this term in paragraph (c) (2) of Schedule 7.3.
"IT Procurement Services" has the meaning given this term in Section 3.5.
"IT Steering Committee" has the meaning given this term in Part A, paragraph 6
of Schedule 3. 1.
"Key Personnel" has the meaning given this term in Section 2.3.
"Know-How" has the meaning given this term in Section 6.6.
"Losses" has the meaning given this term in Section 8.2(a).
"Make Whole Costs" has the meaning given this term in Section 7.7(c).
"Managed Equipment" means the third-party equipment listed in Part A of Schedule
4.2 that is managed by ▇▇▇▇▇ Systems as part of the Services.
"Managed Software" means the CalPX Software, CalPX Vendor Software, Third Party
Software, Third Party Tools and ▇▇▇▇▇ Systems Software listed in Schedule 4.2,
all ▇▇▇▇▇ Systems Tools and ▇▇▇▇▇ Developed Software, and all other software
programs agreed to be managed by ▇▇▇▇▇ Systems as part of the Services.
"Management Procedures Manual" has the meaning given this term in Section 3.6.
"Network Services" has the meaning given this term in paragraph 3 of Schedule
1.2.
"Non-Transitioned Employees" has the meaning given this term in Section 2.7(c).
Schedule 1.1 - Page 4
"Pass-Through Expenses" means any expenses for third party products and services
that are incurred by ▇▇▇▇▇ Systems while acting as an agent of CalPX.
"▇▇▇▇▇ Developed Software" shall mean any Developed Software, other than CalPX
Developed Software.
"▇▇▇▇▇ Systems" has the meaning given this term in the preamble to this
Agreement or any subsidiary or Affiliate of ▇▇▇▇▇ Systems Corporation that
performs Services under this Agreement.
"▇▇▇▇▇ Systems Software" has the meaning given this term in Section 6.4.
"▇▇▇▇▇ Systems Tools" has the meaning given this term in Section 6.4.
"Price Index" has the meaning given this term in Section 5.6.
"Privileged Work Product" has the meaning given this term in Section 6.2(f).
"Program Management Services" means the services described in Part A of Schedule
3. 1.
"PSC Personnel" means employees of, or independent contractors of any level
retained by, ▇▇▇▇▇ Systems providing Services under this Agreement.
"Punch List" has the meaning given this term in Part D, paragraph (b)(ii)(D) of
Schedule 3. 1.
"PX" has the meaning given this term in paragraph (1)(c)(1) of Schedule 7.3.
"Quarterly True-Up" has the meaning given this term in Section 5.1 (b).
"Reduction Percentage" has the meaning given this term in Section 5.1 0(a).
"Renewal Tern" shall, in each case, mean the period that the term of this
Agreement may be extended or renewed beyond the Initial Term or the then
preceding Renewal Term, as the case may be.
"Required Improvements" has the meaning given this term in Section 4.5.
"Requirements" means the functional and operational requirements for a
Deliverable or Service that are specified by CalPX.
"Restricted Territory" has the meaning given this term in Section 6.5(b)(iii).
Schedule 1.1 - Page 5
"RIMF" has the meaning given this term in Section 3. 1.
"Service Fees" means the fees payable by CalPX for the Services.
"Service Levels" has the meaning given this term in Section 3.2(a).
"Services" has the meaning given this term in Section 3.3(a).
"Standard Commercial Rates" has the meaning given this term in Section 5.2.
"Systems" means the Managed Equipment, Managed Software and the Applications
that are operated and managed by ▇▇▇▇▇ Systems as part of the Services.
"Systems Software" means Managed Software and related object and source codes,
and all related supporting documentation and media, that perform tasks basic to
the functioning of the Managed Equipment or which are required to operate the
Applications or otherwise provide Services, and any modifications, enhancements,
revisions, or supplements to such programs and methods from time to time,
including operating systems, systems utilities, data security software,
compilers, telecommunications monitors and database software.
"Tariff' has the meaning given this term in paragraph (1)(a) of Schedule 7.3.
"Task Orders" has the meaning given this term in Section 3.3(d).
"Term" means the Initial Term and all Renewal Terms.
"Third Party Software" means software programs owned by persons other than ▇▇▇▇▇
Systems, CalPX or any of their Affiliates.
"Third Party Tools" means tools owned by persons other than ▇▇▇▇▇ Systems, CalPX
or any of their Affiliates.
"Transition Assistance" has the meaning given this term in Section 7.1 (a).
"Transition Assistance Period" has the meaning given this term in Section 7.1
1(a).
"Transition Period" has the meaning given this term in Section 3.2(a).
"Transitioned Employees" has the meaning given this term in Section 2.7(c).
"Virus" has the meaning given this term in Section 10.4(a).
"Work Product" means all Deliverables and Documentation, including but not
limited to reports, drawings, plans, specifications, computer disks, tapes,
printouts, studies, memoranda,
Schedule 1.1 - Page 6
computation sheets, and other information, documents, records or data, in
whatever form or medium (including without limitation writings, printed and
electronic forms) prepared for CalPX by ▇▇▇▇▇ Systems in connection with the
Services provided under this Agreement.
"Y2K Problem" has the meaning given this term in paragraph 1 of Schedule 1.2.
Schedule 1.1 - Page 7
SCHEDULE 1.2
Excluded Services
Subject to the provisions of Section 3.3(c), CalPX shall have no obligation to
purchase any of the following services from ▇▇▇▇▇ Systems.
1. Year 2000 Services. ▇▇▇▇▇ Systems shall have no obligation under this
Agreement to identify, correct or resolve any problem caused by the
failure of any CalPX Software, CalPX Vendor Software or CalPX Technology,
(i) to record, store, process, or present calendar dates falling on or
after January 1, 2000, in the same manner, and with the same functionality
and accuracy, as performed on or before December 31, 1999; (ii) provide a
century indicator on all dates produced therein as output or results from
its operation; (iii) abnormally end or generate an incorrect result when
performing date calculations involving either a single century or multiple
centuries; (iv) sort all files in an accurate sequence when sorted by date
and read and write in an accurate sequence when the date is used as the
key for such reading or writing; and (v) be capable of determining leap
years (each such failure being a "Y2K Problem"). Notwithstanding the
foregoing, upon request by CalPX ▇▇▇▇▇ Systems shall assign PSC Personnel
to identify, correct or resolve Y2K Problems in substitution for the
Services regularly performed by such PSC Personnel.
2. Desktop Support Services and Desktop Procurement Services. ▇▇▇▇▇ Systems
shall have no obligation under this Agreement to provide Desktop Support
Services or Desktop Procurement Services.
The term "Desktop Support Services" means services involving maintenance,
operation or support (including help desk support services) of (i)
personal computers (including hardware, software, and other components)
typically used by a single individual at a time or (ii) the local area
network or wide area network hardware, software, and other components by
which such personal computers are linked, that are contracted to be
performed by IBM Global Services Corporation on the Agreement Date.
The term "Desktop Procurement Services" means services relating to the
procurement (including but not limited to vendor management, contract
management, costing, purchase order issuance and acquisition management)
of (i) personal computers (including hardware, software, and other
components) typically used by a single individual at a time or (ii) the
local area network or wide area network hardware, software, and other
components by which such personal computers are linked, that are
contracted to be performed by IBM Global Services Corporation on the
Agreement Date.
3. Network Services.
▇▇▇▇▇ Systems shall have no obligation under this Agreement to provide
Network Services.
The term "Network Services" means services involving procurement,
maintenance, operation or support of (i) hardware, software and other
components, including but not
Schedule 1.2 -Page 1
limited to routers, hubs, and network interfaces, necessary to support a
data network from (and including) the router out to the third party
telecommunications infrastructure, or (ii) hardware, software and other
components including but not limited to telephone switches, handsets and
voice network that are being performed by MCI Worldcom on the Agreement
Date.
4. Configuration Services.
▇▇▇▇▇ Systems shall have no obligation under this Agreement to provide
Configuration Services.
Schedule 1.2 - Page 2
SCHEDULE 2.3
Personnel
Part A - CaIPX Employees
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, Yung ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ Shia, Ike ▇▇▇▇▇, ▇▇▇▇▇
Sun, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Part B - CaPX Contractors
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Paragos, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇
Schedule 2.3 - Page 1
SCHEDULE 2.4
Key Employees
This schedule may be revised from time to time by mutual agreement of the
Account Manager and the CalPX Representative.
Employee
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
Schedule 2.4 - Page 1
SCHEDULE 2.5
Corporate Information Securities Standards, Guidelines & Procedures
Schedule 2.5 - Cover
SCHEDULE 2.7
HR Issues
▇▇▇▇▇ Systems shall prepare a transition event plan for review and approval by
CalPX prior to the Effective Date.
Transitioned Employees shall be eligible to participate in all ▇▇▇▇▇ Systems'
employee benefit programs, plans and policies, maintained for employees of ▇▇▇▇▇
Systems under the same terms and conditions as apply to present employees of
▇▇▇▇▇ Systems. In particular, and without limitation as to other employee
benefits, ▇▇▇▇▇ Systems shall provide health care coverage so that the
Transitioned Employees and their eligible dependents are covered by such
coverage on the Effective Date and ▇▇▇▇▇ Systems shall waive all pre-existing
conditions, exceptions, exclusionary provisions and waiting periods.
For vacations and benefit plans, ▇▇▇▇▇ Systems shall recognize length of service
with CalPX as length of service for ▇▇▇▇▇ Systems.
▇▇▇▇▇ Systems shall consider making an accommodation for Transitioned Employees
who have 401k loans under CalPX's 401K Plan and shall consider on a case by case
basis as ▇▇▇▇▇ Systems deems appropriate; provided that ▇▇▇▇▇ Systems shall have
no obligation to amend the ▇▇▇▇▇ Systems Corporation Retirement Savings Plan to
make such accommodation.
▇▇▇▇▇ Systems shall provide for Tuition Reimbursement for those Transitioned
Employees who are enrolled in courses on the Effective Date that will end after
the Effective Date.
Schedule 2.7 - Page I
SCHEDULE 3.1
Base Services
Part A - Program Management Services
1. Program Office Services.
▇▇▇▇▇ Systems shall organize and manage a program office (i) to act as
a single point of contact to manage CalPX's information technology projects,
(ii) to facilitate the integration of common efforts across CalPX's business
units, (iii) to act as single point of contact for all change requests, (iv) to
manage the Enterprise Technology Test Facility through which all development
projects must pass before being released to production, and (v) to facilitate
the IT Steering Committee. The Account Manager shall lead the program office and
each party shall assign appropriate personnel to participate in its activities
as the parties' from time to time agree are appropriate.
2. Project Management Services.
▇▇▇▇▇ Systems shall as appropriate:
a. Use project management tools for major projects, and provide current
status reports, including identifying issues that are reasonably expected to
cause delays in timely completion of projects.
b. Work with CalPX's managers to understand project priorities and
budget, and to resolve issues.
c. Schedule projects after approval is given by CalPX in accordance with
the Change Control Procedure.
d. Coordinate activities and manage the activities of Third Party
Vendors, including priorities, requirements, dependencies, deliverables,
schedules, and milestones.
e. Coordinate cross-functional impacts between Third Party Vendors and
CalPX, including adherence to CalPX's technology and business process standards.
f. Create and distribute performance and other reports as mutually agreed
between ▇▇▇▇▇ Systems and CalPX.
g. Coordinate technical efforts across operations.
h. Participate in site planning for IT initiatives requiring specialized
site preparation upon request.
i. Define and summarize CalPX's information needs and potential IT areas
for improvement. Develop strategies and summary implementation plans to address
as required upon request.
j. Finalize budgets and obtain authorization to implement projects.
k. Manage projects in accordance with the authorized budget.
l. Work with CalPX to integrate initiatives into tactical plans.
m. Implement reasonably appropriate quality controls as part of processes
and procedures.
Schedule 3.1 - Page I
3. Change Control Services.
▇▇▇▇▇ Systems shall as appropriate:
a) Manage all requests for Change Orders and other changes that are
reasonably expected to affect the production environment.
b) Obtain approvals required by the Change Control Procedure for Change
Orders and to implement changes to the production environment.
c) The Change Review Board.
(a) ▇▇▇▇▇ Systems shall organize and coordinate the activities of a
"Change Review Board" to review and approve or reject proposed Changes and to
prioritize approved Changes and existing information technology projects.
(b) The Account Manager, the CalPX Representative and one or more
executive-level employees designated by CalPX shall participate in the Change
Review Board. The CalPX Representative shall chair the Change Review Board,
which shall meet monthly or more often as the parties deem necessary. ▇▇▇▇▇
Systems shall provide monthly project status reports on all outstanding
information technology projects to the Change Review Board.
4. Enterprise Technology Test Facility Services
▇. ▇▇▇▇▇ Systems shall manage and operate the Managed Equipment and
Managed Software comprising the Enterprise Technology Test Facility.
b. Schedule usage of the Enterprise Technology Test Facility.
c. Develop, review and approve acceptance test plans for software
applications to be evaluated or tested in the Enterprise Technology Test
Facility.
d. Evaluate and, if appropriate, approve successful tests of software
applications for release to CalPX's production environment.
5. Architecture Services
a. Propose technology standards for adoption by CalPX and manage
compliance with adopted standards.
b. Develop, maintain and publish Architecture Standards.
c. Participate in maintaining and updating CalPX Technology Standards,
Architecture, Topology, Methods, and Project Plans.
6. IT Steering Committee Services
▇▇▇▇▇ Systems shall organize an IT Steering Committee to (i) participate
in the development of and approve CalPX's technology plan and budgets,
(ii) provide senior-
Schedule 3.1 - Page 2
level guidance to ▇▇▇▇▇ Systems on CalPX's business priorities as they
affect the Services, and (iii) review and approve Changes submitted through the
Change Control Procedure. The CalPX Representative shall chair the IT Steering
Committee and each party shall designate up to four senior personnel, including
the Account Manager, the CalPX Customer Representative, and such other persons
as the parties collectively agree are appropriate to participate in the IT
Steering Committee. The IT Steering Committee shall meet weekly or as otherwise
mutually agreed.
The initial members of the IT Steering Committee shall be:
From ▇▇▇▇▇ Systems:
Account Manager
Representatives of each service areas:
Program Management
Applications Management
Computer Operations
From CalPX:
CalPX Representative
Representatives of each major business unit:
Trading
Settlements and Billing
Finance
Marketing
Compliance
Regulatory
Schedule 3.1 - Page 3
Part B -Computer Operations Services
▇▇▇▇▇ Systems shall operate and manage the Systems seven days per week, 24 hours
per day, by performing the following specific activities:
1.0 CalPX's Data Center Operation
1.1 Perform all master console and sub-system console functions for
production Systems.
1.2 Monitor all production processing for the Systems using
then-available Tools.
1.3 Using then-available Tools operate CalPX's Systems and
Applications.
1.4 Provide system availability in accordance with the Service Levels.
1.5 Make available, monitor, and process on-line and batch
applications, including scheduled jobs re-runs, end-user requested processing
for the production Systems. Start application scheduling scripts (cron jobs).
Monitor Application batch cycles for completion as scheduled.
1.6 Resolve system-related problems in accordance with Service Levels.
1.7 Using then-available Tools monitor batch jobs and overnight
processing for successful completion for production Systems.
1.8 Using then-available Tools monitor for, and notify the Help Desk,
CalPX and third parties, as appropriate, of, problems with production Systems in
accordance with mutually agreed escalation procedures.
1.9 Evaluate, recommend, and, subject to CalPX's approval, implement
Tools required to perform systems automation, management, and reporting.
1.10 Perform resolution and restart activities (including data set
synchronization) for abnormally ended batch Applications.
1.11 Maintain operations logs of CalPXs data center activities,
systems problems, and report incidents to level I support.
1.12 Perform and monitor production Systems start-up and shut down.
1.13 Perform scheduled "full backups" and "incremental backups" of
production Systems, including databases, file systems, and Systems Software on
production Systems in accordance with CalPX's backup schedules.
1.14 Conduct an annual test of the Disaster Recovery Plan.
1.15 Develop, maintain, and execute, as required, restore procedures
for production Systems. Assist in the execution of the restore procedures for
Applications.
1.16 Manage production Systems in accordance with the Change Control
Procedure.
1.17 Reestablish Systems Software after failure and coordinate with
application support personnel any application recovery issues.
1.18 Establish and manage the maintenance window.
1.19 Provide Managed Equipment problem identification and resolution.
1.20 Perform or arrange for Managed Equipment maintenance.
1.21 Provide coordination, assistance, and acceptance of new Managed
Equipment services, (e.g. installations, cabling, and training) using ▇▇▇▇▇
Systems' resources assigned to CalPX's account within the existing capability of
Managed Equipment.
Schedule 3.1 - Page 4
2.0 Production Control and Scheduling
2.1 Develop, maintain, initiate, and monitor all production Systems
schedules (e.g., on line, batch, technical support, off-hours, and restricted
period).
2.2 Resolve scheduling conflicts with CalPX.
2.3 Provide schedule status updates to CalPX, as reasonably requested.
2.4 Process on-request jobs.
3.0 Tape Operations and Administration
3.1 Perform all tape mount requests at CalPX's data center.
3.2 Perform output distribution activities for the tape library, as
required. CalPX shall pay costs of media distribution.
3.3 Maintain and administer tape library at CalPX's data center.
3.4 Maintain integrity of tape library system at CalPX's data center.
3.5 Monitor tape hardware for malfunction.
3.6 Monitor tape usage.
3.7 Perform daily tape hardware and media maintenance.
3.8 Initialize new tapes.
4.0 Off-site Storage for the Data Center
4.1 Develop, coordinate, and execute standard off-site operational
storage requirements as defined in the Disaster Recovery Plan.
4.2 Archive production data.
4.3 Coordinate off-site storage functions as defined in the Disaster
Recovery Plan.
4.4 Review and comply with the physical specifications, retention
periods, and security procedures mutually agreed by the parties in accordance
with the Disaster Recovery Plan for off site stored output.
4.5 Execute off-site storage procedures in accordance with the
Disaster Recovery Plan.
5.0 Operations Documentation
5.1 Create and maintain current all operations and related technical
documentation including an inventory of all hardware and software, and software
release levels for all production Systems.
5.2 Maintain Change Control Procedure documentation.
5.3 Maintain and propagate standard methodologies and Tools within the
production Systems.
6.0 Hardware Support
6.1 Manage Third Party Vendors of Managed Equipment with respect to
planning, installation, and problem resolution using the PSC Personnel.
6.2 Provide hardware sizing estimates with the existing resources.
6.3 Administer equipment leases for Managed Equipment.
6.4 Coordinate and assist in regular maintenance for Managed
Equipment.
Schedule 3.1 Page 5
6.5 Initiate and track requests for space, power and other technical
center modifications in support of Managed Equipment installations.
6.6 Use then-available Tools to allocate and maintain space, equipment
and cabinets, (e.g., inventories and layouts) for Managed Equipment located at
CalPX's Data Center.
6.7 Diagnose and coordinate the resolution of Managed Equipment
problems in accordance with applicable maintenance contracts.
6.8 Schedule, coordinate, and supervise changes to Managed Equipment,
including parts provisioning and testing, site survey verification, capacity,
redeployment, and integration for Managed Equipment.
7.0 Data Center Planning
7.1 Recommend, and, if approved by CalPX, procure and maintain spare
equipment needed to meet Service Levels.
7.2 Provide guidance and coordination for Managed Equipment
installations, routine maintenance, problem and crisis management.
8.0 Technical Support
General
8.1 Assist with new product evaluations, project support, applications
tuning or efficiency improvements, and other IT-related projects using available
PSC Personnel.
8.2 Evaluate, install/deinstall, customize, test, and maintain System
Software.
8.3 Provide technical advice and support to CalPX applications and
operations staff.
8.4 Notify help desk of critical outages.
8.5 Support the Disaster Recovery Plan.
8.6 Provide vendor access to Managed Equipment as required to resolve
problems or perform hardware maintenance. Provide technical liaison for third
party vendors.
8.7 Perform or, where appropriate, arrange for Third Party Vendors to
perform, Systems maintenance.
8.8 Maintain version control of Systems Software and Application.
8.9 Manage Third Party Vendor problem resolution activities for
production Systems.
Capacity Planning
8.10 Forecast resource requirements (disk, memory, etc.) for Managed
Equipment.
8.11 Develop a capacity plan. Manage capacity plan review and approval
process.
8.12 Analyze and report resource trends.
8.13 Provide operational input for hardware planning for the Systems.
8.14 Coordinate and manage projects to install storage devices.
Configuration Planning
8.15 Evaluate alternative configurations and recommend solutions.
Schedule 3.1 - Page 6
8.16 Establish and maintain standard configurations and related
documentation for production Systems.
Performance
8.17 Use reasonable commercial efforts to optimize the performance of
Managed Equipment and Managed Software at the CalPX's data center to reduce
costs or improve Service Levels.
8.18 Provide production System performance tuning.
8.19 Monitor System Software impacts on performance and recommend
enhancements, as appropriate.
8.20 Monitor performance of the Systems.
8.21 Using then-available Tools, report on service level performance.
9.0 Data Center Storage Management
9.1 Monitor and control storage performance and usage using
then-available Tools
9.2 Monitor and control mirrored disk systems.
9.3 Assign and initialize direct access storage volumes.
9.4 Replace or coordinate the replacement of failed disk drives and
systems.
9.5 Maintain established disk storage standards.
9.6 Maintain disk space requirements to accommodate CalPX's business
growth forecasts as authorized by CalPX.
9.7 Provide direct disk storage technology and storage management.
9.8 Perform catalog management.
9.9 Provide Third Party Vendor access to Managed Equipment as required
to resolve problems or perform hardware maintenance. Provide technical liaison
for Third Party Vendors.
9.10 Install and move Managed Equipment, with Third Party Vendor
support, as required, in accordance with the Change Control Procedure.
9.11 Monitor and adjust disk space allocations.
10.0 Database Management For Production Systems Only
10.1 Maintain physical databases.
10.2 Support database software.
10.3 Manage production database availability, including space planning
for expansions (segments, extents, table free space, transaction logs, etc.).
10.4 Perform production database reorganizations and changes due to
application changes or to optimize performance (e.g., redundancy, access, etc.).
10.5 Perform ongoing production database management and tuning of the
production database, including interactions with production hardware, software,
and operating systems.
10.6 Install new database management System Software releases.
10.7 Perform production database administration.
10.8 Perform production database log monitoring and tracking.
10.9 Assist and coordinate Third Party Vendor problem resolution
activities.
Schedule 3.1 - Page 7
10.10 Perform production database object management (index relocations
and rebuilds, table relocations and rebuilds, rollback segment resizing, on-line
redo log management, temporary segment management).
10.11 Provide operational interfacing with application database
administrators in relation to testing environment databases. Support data
analysis, modeling, and logical database design.
10.12 Perform database administration using then-available Tools.
10.13 Maintain appropriate redundancy and fail-over capabilities - may
not be automatic for some applications.
11.0 Administration
11.1 Recommend and implement Managed Equipment utilization planning,
including redeployment of user workstations, except for desktop workstations, in
accordance with CalPX's business policies.
11.2 Administer leases for Managed Equipment, including monitoring
expiration, warranty and technical terms and review invoices prior to submission
for payment by CalPX, but excluding arranging for payment of lease payments.
11.3 Order and coordinate installation of Managed Equipment.
11.4 Administer software licenses for Managed Software and System
Software.
11.5 Monitor software maintenance levels and recommend updates as
appropriate.
12.0 Information Security and Disaster Recovery
12.1 Establish, maintain, and implement the security policies and
procedures approved by CalPX.
12.2 Establish, maintain, and implement security administration
processes, including User ID administration standards, providing special
authorities, and purging unused access.
12.3 Perform Application security administrative functions, including
implementing functions of access control software up to and including the
front-end application (GUI) and database access.
12.4 Manage authorizations and access for users and operations to the
Systems.
12.5 Perform password administration for all supported Systems
Software, database environments, LAN systems, and network components.
12.6 Implement and maintain a security violation log that shall be
reported to management.
12.7 Use then-available Tools approved by CalPX to restrict
unauthorized use of Managed Equipment and network devices.
12.8 Provide secure storage for portable storage media relating to
production servers.
12.9 Maintain appropriate tracking of Managed Equipment.
12.10 Identify, implement, and maintain virus avoidance, detection and
elimination software for servers.
12.11 Recommend and implement Tools to maintain commercially
reasonable security controls for dial-in services.
Schedule 3.1 - Page 8
12.12 Define specific disaster recovery requirements and propose a
Disaster Recovery Plan. Use reasonable commercial efforts to ensure that the
Disaster Recovery Plan remains current at all times.
12.13 Restore operating environment upon failure within agreed-upon
time frames and parameters, according to the CaLPX approved Disaster Recovery
Plan.
12.14 Store CalPX-identified critical information and media off-site
in accordance with the Disaster Recovery Plan paid for by CalPX.
12.15 Work with CalPX to identify test objectives for the annual test
of the Disaster Recovery Plan.
12.16 Establish and monitor disaster recovery facilities in accordance
with the Disaster Recovery Plan.
12.17 Provide operational support requirements for the Applications
disaster recovery solutions in accordance with the Disaster Recovery Plan.
12.18 Maintain recovery management (file backup/recovery) processes
for Managed Equipment at the Data Center and current listings of system
configurations for such Managed Equipment in accordance with the Disaster
Recovery Plan.
12.19 Provide procedures for moving media from off-site storage to
recovery center in accordance with the Disaster Recovery Plan.
12.20 Provide recovery site resources for system recovery in
accordance with the Disaster Recovery Plan.
12.21 Develop, manage, and implement approved disaster declaration
policies in accordance with the Disaster Recovery Plan.
12.22 Provide contact lists of personnel responsible for coordinating
and managing recovery planning procedures in accordance with the Disaster
Recovery Plan.
12.23 Provide and maintain procedures for emergency recovery of
Managed Equipment at the Data Center and successful transfer of operations to
the alternate-processing site.
12.24 Develop and implement procedures to be followed at recovery
center in accordance with the Disaster Recovery Plan.
12.25 Make Changes to the Disaster Recovery Plan using the Change
Control Procedure.
12.26 Develop and implement Disaster declaration processes, including
Third Party Vendor notification, establishing CalPX communication points, and
activating the Disaster Recovery Plan.
CalPX and ▇▇▇▇▇ Systems shall revise the scope and description of all
Services relating to disaster recovery in this Schedule 3.1 as appropriate after
the Required Improvements relating to disaster recovery are completed.
13.0 Help Desk, Problem Management and Reporting
13.1 Establish single point of contact on a 7 days a week, 24 hours a
day basis, that provides assistance for end-user problems, and coordinate
problem tickets, through a supplied and supported problem management system.
13.2 Respond to end-user service requests and problem reports, in
accordance with escalation processes that assign severity levels by problem.
Schedule 3.1 - Page 9
13.3 Log appropriate caller information into a centralized problem
management System.
13.4 Identify appropriate support group for escalated problems.
13.5 Identify training opportunities for CalPX's employees based on
problem history using PSC Personnel.
13.6 Seek opportunities for continuous improvement for Help Desk
activities.
13.7 Initiate work request for the applications support team, when
necessary.
13.8 Track problems through resolution.
13.9 Establish and manage problem prioritization.
13.10 Provide direct access to all appropriate operations staff when
required.
13.11 Establish standards and procedures for Help Desk calls.
13.12 Provide on-call Help Desk operational support, and if provided,
to CalPX's application support staff.
13.13 Track and provide status on all reported incidents.
13.14 Confirm with initiator that problem has been corrected and close
incidents accordingly.
13.15 Provide daily status report containing all outstanding problems.
13.16 Analyze trends and recommend actions to resolve recurring
problems upon request using PSC Personnel.
13.17 Provide prompt notification and escalation of critical problems
or outages.
13.18 Collect and report Help Desk statistics monthly.
13.19 Provide information to end-users on Help Desk functions and
availability.
13.20 Communicate application and environment information to Help Desk
personnel.
13.21 Provide assistance and recommendations for "work around"
solutions when technology has failed or under performed.
13.22 Perform and supervise problem process as defined by the problem
management procedure guide.
13.23 Create and publish bulletins and procedures regarding issues and
changes to CalPX's production Systems, and communicate these to user communities
defined by CalPX.
13.24 Perform weekly problem management reviews in order to identify
repetitive problems.
13.25 Open problem tickets to initiate work requests for Application
changes.
Schedule 3.1 -Page 10
Part C - Application Maintenance Services
(a) Application Maintenance Services.
(i) ▇▇▇▇▇ Systems shall maintain the CalPX Proprietary Software and ▇▇▇▇▇
Systems Software identified in Part A and Part C, respectfully, of Schedule 4.1.
▇▇▇▇▇ Systems shall have no obligation to maintain any other software programs,
except as agreed in accordance with the Change Control Procedure.
(ii) For Core Applications:
* ▇▇▇▇▇ Systems shall provide first line problem determination
on a 7 days a week, 24 hours per day basis.
* ▇▇▇▇▇ Systems shall provide second line problem resolution
support for Core Applications whose source code it can access and modify based
on the severity level problem determination defined in paragraph C of Schedule
3.3.
(iii) For non-Core Applications:
* ▇▇▇▇▇ Systems shall provide first line problem determination
during Normal Business Hours.
* ▇▇▇▇▇ Systems shall provide second line problem resolution
support for non- Core Applications whose source code it can access and modify on
a reasonable commercial efforts basis.
(b) Core Applications.
During the Transition Period, CalPX and ▇▇▇▇▇ Systems shall validate and
revise as appropriate the following list of Core Applications. After the
Transition Period, this list of Core Applications shall be modified, if at all,
by the parties through the Change Control Procedure.
Software Description Software
Version
Block Forward Ticker 1.0
BuckEye (ISODAB) 2.1
Zonal Price Calculation (DA & HA) 1.1.9
Metering System 1.2
Over Generation Management (DA & HA) 1.0.1
PeopleSoft 7.5
Post-Processor 5.2.1
PowerBase 1.15
Pre-Processor Plus 1.6.1
Schedule 3.1 - Page 11
Web (ST) 1.15
Zonal Price Checker (DA & HA) 1.0
During the Transition Period, CalPX and ▇▇▇▇▇ Systems shall validate and
revise as appropriate the following list of Core Applications that are provided
by OM Technology. After the Transition Period, this list of Core Applications
shall be modified, if at all, by the parties through the Change Control
Procedure.
Software Description Software
Version
Block Forward Secure Back Office 4.3
Block Forward CIBIOS Trade Application 3.0 - 6.7
Day Ahead Bidding & Scheduling 5.1.16
Hour Ahead Bidding & Scheduling 5.1.15
OM Net OMEX (network gateway) 2.2.1
Settlements 5.1.7.1
Trade Application 5.1.14
Block Forward Click 3.01
Schedule 3.1- Page 12
Part D - Applications Development Services
a) Application Development Services.
* ▇▇▇▇▇ Systems shall assist CalPX personnel to develop, enhance and
review the functional requirements for Application and Developed Software
identified by the Program Office that has been approved for acquisition or
development through the Change Control Procedure in accordance with technology
standards, development budgets and schedules approved by CalPX from time to
time.
* ▇▇▇▇▇ Systems and CalPX shall review, and revise as necessary, the
functional requirements, development budget and development schedule for each
Application. Following CalPX's approval of these items, ▇▇▇▇▇ Systems shall
prepare a Change Order confirming the requirements, development budget and
schedule for submission to the Change Review Board. Work shall begin under the
Change Order promptly after its execution by CalPX and ▇▇▇▇▇ Systems.
* All enhancements to Application shall be considered part of Application
Development Services.
* All services required to introduce or integrate any software into CalPX
systems, including customization or configuration of such software, shall be
considered part of Application Development Services, provided, however, that if
the vendor of Third Party Software requires that (i) such vendor customize or
configure its software, or (ii) an authorized reseller, systems integrator or
similar service provider customize or configure its software, then such
customization or configuration of such software shall not be considered part of
Application Development Services unless ▇▇▇▇▇ Systems is an authorized reseller,
systems integrator or similar service provider at the time the Third party
Software is acquired by CalPX ("Configuration Services").
* ▇▇▇▇▇ Systems shall have no obligation to enhance any Application whose
source code it can not access and modify.
b) Acceptance.
Acceptance of Deliverables shall be conducted in accordance with the
following procedures.
* Documentation. ▇▇▇▇▇ Systems may submit interim drafts of Documentation
to CalPX for its review. CalPX shall review each interim draft within 15
business days after receiving it. When ▇▇▇▇▇ Systems delivers final
Documentation to CalPX, CalPX shall have the opportunity to review the written
deliverable for an acceptance period of 10 business days after receiving it
("Acceptance Period"). CalPX shall notify ▇▇▇▇▇ Systems' Account Manager in
writing by the end of the Acceptance Period either stating that the
Documentation is accepted in the form delivered or describing in reasonable
detail any deficiencies that must be corrected prior to acceptance. If CalPX
does not send a deficiency notice by the end of the Acceptance Period, the
Documentation shall be deemed to be Accepted. If CalPX sends a timely notice of
deficiencies, ▇▇▇▇▇ Systems shall correct the described deficiencies as promptly
as possible; provided, however, if ▇▇▇▇▇ Systems, upon
Schedule 3.1 - Page 13
providing CalPX's Account Manager a detailed justification of its position, does
not believe that CalPX has identified a deficiency, the parties shall follow the
procedures set forth in Article 7. Upon receipt of corrected Documentation from
▇▇▇▇▇ Systems, CalPX shall have a reasonable additional period of time, not to
exceed 15 business days, to review the corrected Documentation to confirm that
the identified deficiencies have been corrected.
Deliverables. At least 30 days prior to the date on which ▇▇▇▇▇ Systems
is scheduled to deliver any Deliverable to CalPX for testing, ▇▇▇▇▇ Systems
shall deliver proposed testing procedures for the Deliverable for CalPX's
review. At least 15 days prior to the date on which ▇▇▇▇▇ Systems is scheduled
to deliver the Deliverable to CalPX, the parties shall agree upon the testing
procedures for the Deliverable and the objective criteria for determining
whether the Deliverable should be accepted ("Acceptance Test Plan"). The purpose
of the Acceptance Test Plan shall be to determine whether the Deliverable
performs the functions described in its approved specifications and performs the
Requirements without any Defects. As used in this Agreement, "Defect" means a
reproducible failure of a Deliverable to satisfy the Acceptance Test Plan.
Acceptance of Software deliverables shall be conducted in accordance with the
following procedures.
(A) The Acceptance Test Period for each Deliverable shall be specified
in the relevant Project Plan.
(B) ▇▇▇▇▇ Systems and CalPX shall start to perform Acceptance Testing
on each Deliverable promptly after receiving ▇▇▇▇▇ Systems' notice that the
Deliverable is ready for acceptance. Acceptance Testing shall be performed as
set forth in the Acceptance Test Plan. If CalPX determines during the Acceptance
Period that the Deliverable has one or more Defects, CalPX shall promptly send
to ▇▇▇▇▇ Systems' Account Manager a notice ("Defect Notice") describing the
alleged Defect(s) in sufficient detail to allow ▇▇▇▇▇ Systems to recreate it or
them. The parties shall use commercially reasonable efforts to identify all
Defects prior to the end of the Acceptance Test Period.
(C) ▇▇▇▇▇ Systems shall correct any Defects in a Deliverable promptly
after receiving a Defect Notice and provide the corrections to CalPX for
re-testing. CalPX shall promptly re-test any corrected portions of a Deliverable
after receiving the corrections from ▇▇▇▇▇ Systems.
(D) If any remaining uncorrected Defects exists in the Deliverable at
the end of the Acceptance Test Period, CalPX shall provide ▇▇▇▇▇ Systems by the
end of the Acceptance Test Period with notice of the final list of outstanding
Defects, describing them in sufficient detail to allow ▇▇▇▇▇ Systems to recreate
them ("Punch List"). ▇▇▇▇▇ Systems shall correct any Defects identified on the
Punch List promptly after receiving the Punch List. When all Defects on the
Punch List have been corrected, ▇▇▇▇▇ Systems shall provide the corrections to
CalPX. The parties shall have 15 days after receipt of the corrections, unless
the parties agree to a different period in writing, to re-test the corrected
Deliverable to confirm the
Schedule 3.1 -Page 14
correction of the Defects identified on the Punch List and to identify any
remaining Defects. If CalPX determines that any Defects identified in the Punch
List have not been corrected, CalPX shall provide ▇▇▇▇▇ Systems by the end of
the 15-day re-testing period with notice of a revised Punch List, which may
include Defects not identified on the Punch List. ▇▇▇▇▇ Systems shall promptly
correct any Defects that are identified in the revised Punch List and provide
the corrections to CalPX. The parties shall have a further 15 day period after
receipt of the corrections, unless the parties agree to a different period in
writing, to re-test the corrected Deliverable to confirm the correction of the
Defects. If CalPX determines as a result of the re-testing that the Software
deliverable still contains one or more Defects, CalPX shall notify ▇▇▇▇▇
Systems' Account Manager, who shall promptly cause ▇▇▇▇▇ Systems to perform a
root cause analysis of such Defects and refer the matter to the IT Steering
Committee. If the IT Steering Committee is unable to resolve the matter within
15 days after the matter is submitted to it, any party may submit the matter to
the dispute resolution procedures set forth in Article 7.
(E) ▇▇▇▇▇ Systems and CalPX each agree to work diligently to achieve
Acceptance of each Deliverable at the earliest possible date.
Schedule 3.1 - Page 15
Part E - Business Consulting Services
The PSC Personnel assigned to provide Business Consulting Services to CalPX
shall, upon request by CalPX, provide advice to CalPX in the following
substantive areas:
* Trading and scheduling
* Business and regulatory affairs
* Settlements calculation
* Market compliance
* Information technologies
.. Finance
.. Marketing
* Product Development
Business Consulting Services shall include the following activities,
among others:
* Design, review, document or train on business protocols for CalPX and
other participants in the California energy market, including the California
Independent System Operator (ISO), upon request by CalPX;
* Design, review, or document regulatory filings for CalPX and all
other participants in the California energy market, including the ISO, upon
request by CalPX; and
* Design, review, document or train on information technology solution
methods and algorithms, including development and review of mathematical model,
computational algorithm and detailed functional specifications.
All services related to the above activities including but not limited to
meeting with CalPX's staff, ISO staff and all other participants in the
California energy market, including preparation time for training shall be
deemed as Business Consulting Services.
Schedule 3.1 - Page 16
SCHEDULE 3.3
Service Levels
A. Service Levels - General Provisions
During the Transition Period CalPX and ▇▇▇▇▇ Systems shall validate the service
levels set forth in this Schedule 3.3. Commencing with the first full calendar
month after the Transition Period for new Application, each performance metric
shall be measured and reported to CalPX on a monthly basis.
▇▇▇▇▇ Systems shall perform Services for which no Service Level is
specified in this Schedule 3.3 at least at the same level, and with the same
degree of accuracy, quality, completeness and responsiveness as CalPX performed
such Services prior to the Effective Date.
Assumptions and Pre-conditions: ▇▇▇▇▇ Systems' obligation to comply
with the Service Levels set forth in this Schedule 3.3 is contingent upon the
accuracy of the assumptions and the satisfaction of the pre-conditions set forth
below. If any of these assumptions are inaccurate or any of these pre-conditions
are not satisfied, ▇▇▇▇▇ Systems and CalPX shall negotiate in good faith to
adjust the Service Levels appropriately or to select alternate Service Levels.
* Each Service Level shall be measured using then existing measurement
Tools.
Server availability shall be calculated by dividing (i) the number of minutes
the applicable server is responding to system commands, by (ii) the total number
of minutes in the applicable month, based on 7 x 24 availability, minus the
total number of minutes of downtime (a) reserved for system maintenance windows,
(b) reserved for CalPX approved, non-routine maintenance periods, (c) reserved
for CalPX approved Application installation periods, (d) caused by defects in
Managed Equipment, Applications (except to the extent such defects result from
modifications to such Applications made by PSC Personnel), or services provided
by Third Party Vendors (other than PSC Personnel), (e) caused by processing
transaction volumes in excess of those for which the applicable system was
designed, (f) caused by an Application that has not been tested in a reasonably
adequate test environment for a reasonably adequate time period before being
placed into the production System, and (g) defects in Applications (except to
the extent such defects result from modifications to such Application made by
PSC Personnel), or services provided by Third Party Vendors (other than PSC
Personnel).
* CalPX shall authorize the replacement or repair, as reasonably appropriate, of
any hardware and software reasonably necessary (i) to replace hardware that
begins to exhibit erratic performance or has otherwise become obsolete, (ii) to
Schedule 3.3 - Page I
upgrade such hardware or software in accordance with the
recommendations of its manufacturer, (iii) to interoperate properly
with other hardware or software authorized to be replaced by CalPX,
or (iv) to process the transaction volumes then being processed by
the applicable hardware or software.
* Service Levels shall be measured but not enforced until the next
calendar month following each (i) transition to a new hardware or
software platform that affects the applicable Service Level and (ii)
implementation of new Applications that affects the applicable
Service Level.
* Unless otherwise agreed, the scheduled system maintenance window
shall be 12:01 a.m. to 3:00 a.m. Pacific Time each Saturday and
Sunday.
SERVICES OR
SYSTEMS TO BE SERVICE LEVEL SERVICE LEVEL
MONITORED SERVICE OBJECTIVE SERVICE LEVEL METRIC REQUIREMENT
------------- ----------------- ------------- ------------- -------------
Production Servers Servers running Core ▇▇▇▇▇ Systems shall cause A server shall be deemed 95%
Applications used by CalPX servers running Core "available" if the operating
to operate the day ahead and Applications used by CalPX system installed on such
hour ahead markets should be to operate the day ahead and server is responding to
"available" 7 days per week, hour ahead markets to be console commands entered at
24 hours per day. "available" 7 days per week, the server.
24 hours per day, except
during maintenance windows
and other scheduled outages
approved in advance by
CalPX, for at least the
percent of time set forth
under the heading Service
Level Requirement.
Back-Office Servers Servers running Core ▇▇▇▇▇ Systems shall cause A server shall be deemed 95%
Applications that are used servers running Core "available" if the operating
by CalPX (i) to settle Applications used by CalPX system installed on such
transactions from the day (i) to settle transactions server is responding to
ahead and hour ahead markets from the day ahead and hour console commands entered at
or (ii) to manage its ahead markets or (ii) to the server.
financial or other internal manage its financial or
operations (e.g., PeopleSoft other internal operations to
applications) should be be "available" 7 days per
"available" 7 days per week, week, 24 hours per day,
24 hours per day. except during maintenance
windows and other scheduled
outages approved in advance
by CalPX, for at least the
percent of time set forth
under the heading Service
Level Requirement.
Test/Market Simulation Servers forming part of the ▇▇▇▇▇ Systems shall cause A server shall be deemed 90%
Servers Enterprise Technology Test servers forming part of the "available" if the operating
Facility should be Enterprise Technology Test system installed on such
"available" during Normal Facility to be "available" server is responding to
Business Hours and otherwise during Normal Business console commands entered at
during scheduled simulations Hours, except during the server.
during scheduled test maintenance windows and
periods. other scheduled outages
(including outages to
reconfigure hardware or
software) approved in
advance by CalPX, for at
least the percent of time
set forth under the heading
Service Level Requirement.
Schedule 3.3 - Page 2
SERVICE
SERVICES OR LEVEL
SYSTEMS TO BE REQUIRE-
MONITORED SERVICE OBJECTIVE SERVICE LEVEL SERVICE LEVEL METRIC MENT
--------------- ----------------------------------- -------------------------------------- ---------------------------- --------
Gateway Servers The DEC Alpha servers running the ▇▇▇▇▇ Systems shall cause the DEC A server shall be deemed 95%
OM Gateway should be "available" 7 Alpha servers running the OM "available" if the operating
days per week, 24 hours per day. Gateway to be "available" 7 days per system installed on such
week, 24 hours per day, except server is responding to
during maintenance windows and console commands entered
other scheduled outages approved in at the server.
advance by CalPX, for at least the
percent of time set forth under the
heading Service Level Requirement.
User accounts User accounts and user IDs for Cal During Normal Business Hours, ▇▇▇▇▇ A request for an activation 95%
and ID PX employees should be activated or Systems shall activate or change each of or a change to a user
changed within four hours after user account or user ID within four account or user ID shall be
receiving a proper request for such business hours after receiving a deemed to be proper if the
action. proper request for such action, for at request is submitted through
least the percentage of requests set ▇▇▇▇▇ System's help desk or
forth under the heading Service Level electronic ticketing system
Requirement. with the approvals required
by the Management
Procedures Manual.
Password Resets User passwords that have expired or During Normal Business Hours, ▇▇▇▇▇ A request for a password 94%
have been suspended should be reset Systems shall reset each user reset shall be deemed to be
within 15 minutes after receiving a password that has expired or has been proper if the request is
proper request for such action. suspended within 15 minutes after submitted through ▇▇▇▇▇
receiving a proper request for such Systems' help desk or
action, for at least the percentage of electronic ticketing system
requests set forth under the heading with the approvals required
Service Level Requirement. by the Management
Procedures Manual.
Help Desk Call Calls to the help desk should be During Normal Business Hours, ▇▇▇▇▇ This service level shall be 90%
Response Time answered within 30 seconds during Systems shall answer all calls to the measured based upon call
Normal Business Hours. help desk within 30 seconds for at reports from CalPX's ACD
least the percentage of calls set or equivalent system, and
forth under the heading Service Level shall exclude delays in
Requirement. answering during which
recorded messages are being
played.
Backups Backup procedures for each System ▇▇▇▇▇ Systems shall perform the CalPX and ▇▇▇▇▇ Systems 96%
should be performed as provided in backup procedure for each System as shall establish backup
the Management Procedures Manual. provided in the Management procedures and schedules
Procedures Manual in at least the within 60 days after the
percentage of cases as set forth under Effective Date.
the heading Service Level
Requirement.
C. Problem Resolution Commitments
▇▇▇▇▇ Systems shall provide the support services described in the tables
below to resolve problems within the time periods specified in the tables below
for problems of the severity described below for systems and Applications that
it has access to and can modify.
Schedule 3.3 - Page 3
Definition of Terms
Severity Level: The severity level reasonably assigned to a problem by
CalPX and ▇▇▇▇▇ Systems based on the impact of that
problem on CalPX's business.
Definition: The general nature of the problem that falls within the
applicable Severity Level.
Support: The general level of support that ▇▇▇▇▇ Systems and
CalPX shall provide while attempting to resolve a
problem of the applicable Severity Level.
Service Level: Maximum amount of time ▇▇▇▇▇ Systems shall take to
resolve a problem of the applicable Severity Level.
Status Update: The frequency with which CalPX shall be updated on the
status of the problem.
Report
Required: If YES, then ▇▇▇▇▇ Systems shall regularly report its
problem resolution status to CalPX.
Schedule 3.3 - Page 4
01 A problem shall be ▇▇▇▇▇ Systems shall provide uninterrupted problem ▇▇▇▇▇
Systems Every hour Yes assigned this isolation and determination services. shall
resolve or until the severity level if (i) ▇▇▇▇▇ Systems shall implement
workarounds and provide ticket first the majority of users patches immediately
after testing such items as workarounds reaches at the applicable site provided
in the Management Procedures Manual. for 98% of all Temp Fix, are adversely
▇▇▇▇▇ Systems shall implement hardware and problems Resolved or affected, (ii)
the software upgrades implementing more thorough assigned this Closed problem
has high resolutions during the first available maintenance Severity Level
status. visibility, and (ii) window after testing of such upgrades is within
four there is no copee.hours. workaround available. CalPX shall provide on-site
support to assist in problem isolation and determination activities and Example:
A file to test problem resolution. server is not available.
02 A problem shall be ▇▇▇▇▇ Systems shall provide problem isolation and ▇▇▇▇▇
Systems Every four Yes assigned this determination support on an as needed basis
until a shall resolve or hours until severity level if (i) workaround is
identified. provide the ticket the majority of users ▇▇▇▇▇ Systems shall
implement a workarounds workarounds first reaches at the applicable site
immediately after it is tested as provided in the for 98% of all Temp Fix, are
adversely Management Procedures Manual. ▇▇▇▇▇ Systems problems Resolved or
affected, (ii) the shall implement hardware and software upgrades assigned this
Closed problem has high implementing more thorough resolutions during Severity
Level status. visibility, and (iii) a the first available maintenance window
after within 24 work around is testing of such upgrades is completed. hours.
performance of the CalPX shall provide support to assist in problem applicable
System is isolation and determination activities and to test degraded or the the
workaround. functionality of the applicable System is materially limited.
Example: A router is down, however, traffic is rerouted with degraded
performance.
03 A problem shall be ▇▇▇▇▇ Systems shall provide problem isolation and ▇▇▇▇▇
Systems Twice No assigned this determination support during Normal Business
shall resolve or weekly until severity level if (i) aHours. provide the ticket
small percentage of ▇▇▇▇▇ Systems shall implement workarounds and workarounds
first reaches users at the hardware and software upgrades during the first for
98% of all Temp Fix, applicable site are available maintenance window after
testing of is problems Resolved or adversely affected, copee.assigned this
Closed and (ii) the problem Severity Level status. has limited visibility.CalPX
shall test fixes. within five Example: A user is business days. unable to
establish an application session from his/her machine.
Schedule 3.3 - Page 5
04 A problem shall be ▇▇▇▇▇ Systems shall provide problem isolation and ▇▇▇▇▇
Systems Weekly until No assigned this determination support during Normal
Business shall resolve or the ticket severity level if the Hours. provide first
reaches affected Systems can ▇▇▇▇▇ Systems shall implement workarounds and
workarounds Temp Fix, be operated without hardware and software upgrades during
the first for 98% of all Resolved or significant available maintenance window
after testing is problems Closed limitations on completed. assigned this status.
performance or Severity Level functionality using a CaIPX shall test all fixes.
within five workaround. business days. Example: A printer is not working
however, users can re-route jobs to another printer.
05 A problem shall be ▇▇▇▇▇ Systems shall provide problem isolation and ▇▇▇▇▇
Systems Twice No assigned this determination support during Normal Business
shall resolve or monthly Severity Level if Hours. provide until the neither the
user nor ▇▇▇▇▇ Systems shall implement workarounds and workarounds ticket first
operation of the hardware and software upgrades during the first for 98% of all
reaches applicable System is available maintenance window afer testing is
problems Temp Fix, materially adversely comple assigned this Resolved or
affected. completed. Severity Level Closed Example: A PC CalPX shall test all
fixes. within 10 status. connects duplicate business days. sessions to one
resource.
Schedule 3.3 - Page 6
SCHEDULE 4.2
Managed Software
Part A - CalPX Proprietary Software
Software Program Version
Admin Fee Calculator 4.5.2
Automatic UMCP Posting (DA & HA) n/a
Compliance (DA & HA) Powerbuilder Reports 2.65
Compliance Data Warehouse n/a
Credit Reports (security deposit) 2.4.1
Invoice Parser 2.2
Metering System 1.2
PGE Post 4.1
Post-Processor 5.2.1
PowerBase 1.15
Pre-Processor Plus 1.6.1
Real Time DA Loader (RTHABACK) 7.0.0
Real Time HA Loader (RTHALOAD) 9.4.0
Real Time Report/Data Entry (RTHAFRNT) 8.1.8
Real Time NERC Scheduling Tagging (NERC) 3.5.1
Settlements Reports n/a
Trading Reports 1.34
Web DA Loader 4.6
Web HA Loader 4.7
Web (ST) 1.15
Part B -- CalPX Vendor Software
Utilities
Acrobat Reader 3.01
Acrobat Reader 3.0
ADP PC/Payroll for Windows 2.52-01
ADP HR Perspective 2.5
AutoSys 4.3
BAMTRAC System 2.6
BMC Patrol Agent 3.2.5
Business Objects 4.1.3
ClientPak for Windows NT 5.1
Schedule 4.2 - Page 1
Data Direct Connection OBDC Drivers 3.10
Dbartisan 4.01
DB Tools Core Lib Win 2.2w
DEC Forms 2.2A
Dialer - IBM Global Network 4.18.4
Ditto Tools Driver for Windows NT 3.51
Ditto Tools Driver for Windows NT 4.0
English HP-UX CDE Runtime Environment B.10.20
English HP-UX CDE Runtime Environment B.10.20
Enterprise Administrator Domain License 4.51.00
Enterprise Administrator User License
Enterprise Cluster Master Toolkit A.10.11
Extension Software Patch Bundle B.10.20.38
Extension Software Patch Bundle B. 10.20.33
Extension Software Patch Bundle B.10.20.33
Fast Forward 3.0
Fasttrack Server B.01.00.00
Fasttrack Server B.01.00.00
Fibre Channel Mass Storage Driver B.10.20.30
Fibre Channel Mass Storage Driver B.10.20.30
GDB 4.17
HP aC++ Compiler S800 A.01.07.01
lOOBT/9000 EISA B. 10.20.01
HP GlancePlus/UX for s800 10.20 B.10.20.72
HP Mpower //Web for Series 700 - E B.10.20.03
HP OnLineJFS (Advanced VxFS) B.10.20
HP-PB 10OBase-T/9000 B.10.20.06
HP-PB 100 Base-T/9000 B. 10.20.02
HP-PB 10OBase-T/9000 B.10.20.09
HP-UX Media Kit B10.20
HP-UX 10.20 Hardware Extensions B.10.20.HWE
HP-UX 8-User Licensee B.10.20
HP-UX Installation Utilities (Ignite-UX-S800-A. 1.51
10.20
HPUX Installation Utilities for Installing 10.20 A. 1.51
HPUX 10.0 Support Tools Bundle B.10.20.08
HPUX 10.0 Support Tools Bundle B.10.20.08.04
HP-UX Core OS Year 2000 Patch Bundle B.10.20.A0720
HPUX Core OS Year 2000 Patch Bundle B.10.20.A0720
HummingBird (Exceed/Xpress, Xpress/Host 1.6 rel 4.25
Hyena 1.76
Internet Information Server 3.0
Internet Information Server 2.0
Schedule 4.2 - Page 2
Logic Works ER win/ERX 3.0
Logic Works EW win/ERX 3.5.1
Lotus Domino Fax Server Pspt Media Pack 4.5
Lotus Domino Fax Server Win NT 4.5
MC / Service Guard A.10.10
MC / Service Guard A.10.10
MCSG 10.10 Patches A. 1.0
Microsoft SMS Client Access License server 1.2
Microsoft Systems Management Server 1.2
Microsoft TechNet Starter Kit Server N/A
Microsoft Telnet 4.0
Microsoft Telnet 4.4
Microsoft Internet Information Server 3.0
Microsoft Index Server 2.0
Microsoft Transaction Server 2.0
Microsoft Active Server Pages 3.0
Microsoft Visual SourceSafe 6.0
MirrorDisk / UX B. 10.20
Money h++ Win 2.21w
MPWebl.I s700 reference bundle B.10.20.03
Multi Edits 7.11
Net BackUp (Windows NT server) 3.2
Net Term 4.2.5
Netviz 2.5
NetWorker for HP-UX 5.1
NetWorker for Windows NT 5.1
Norton AntiVirus 4.0
Norton AntiVirus NT Server 4.0
Norton AntiVirus NFR Promo 4.0
Norton AntiVirus (Windows NT Server) 4.0
Norton AntiVirus 5.0
ODBC 3.1.0
Octopus HA+ 3.0
Omni Page Limited Edition 5.0
Palm Pilot Desktop 2.1
Patrol/WMS 3.2.05
Patrol/NT 3.2.06
PeopleSoft 7.5
PowerMart - Informatica 4.5.1
PSPT Media Pack Fax Server 1.1
PSPT Media Pack Notes NA/Lotus Pass 4.5.2
Purify 4.2
Quota Manager Standard Edition 2.6. 1A
Schedule 4.2 - Page 3
RDB 6.1A
RTR 3.1-D
Scan Wizard 2.35
Secure Server Certificate n/a
shmmax +1Gb Patches A.1.0
SPF / Source Edit 2.0
Sybase System 11 ODBC 3.0.28.22
TexBridge Pro 96 96
Tools h++ Win 7.07w
Trial HP GlancePlus/US Pak for s800 10.20 B.10.20.140
Trial HP MeasureWare Server Agent for s800 B.10.20.140
10.20
Trial HP PerfView for s800 10.20 B.10.20.109
Trial HP GlancePlus/UX for s800 1 B.10.20.95
▇▇▇▇▇ Electronic Services System 2.41
Win Zip 6.3 (SR-)
WinZip Software License 6.3
WinZip 6.3
XDB A.10.20
Xemacs 20.4
Productivity Tools
▇▇▇▇▇ Wizard 1.10 MSW97
Business Wire Connect 1.3
Lotus Domino Upgrade Server 4.6
Lotus Notes 4.5
Lotus Notes 4.6
Lotus SmartSuite 97 97
Microsoft Frontpage 97 97
Microsoft Frontpage 98 98
Microsoft Office 97 Standard Edition 97
Microsoft Office 97 Pro Edition 97
Microsoft Project 98 98
Microsoft Image Composer 1.5
Microsoft Outlook 97
Microsoft Internet Explorer 4.0
Microsoft ACCESS Professional Edition 98
Microsoft Internet Explorer 4.0
Netscape Communicator 4.Ox
Netscape Communicator 4.01
Netscape Communicator 4.04
ORG Plus for windows 3.01
Remedy Action Request System 3.2
SeaGate Crystal Reports (Standard) 6.0
Schedule 4.2 - Page 4
Visio Pro 4.0
Visio Pro 5.0
Visio Pro CD/Doc Set 5.0
Operating Systems
ADSM Upgrade to AIX 3.1 3.1
AIX 4.1.5
AIX 4.2
AIX 4.3
HP UX B.10.20
Microsoft Windows NT Server 4.0
Microsoft NT Workstation 4.0
Microsoft Windows NT Client Access License 4.0
Microsoft NT 4.0 Server w/service pk3 4.0
Development Tools
ANSI C B. 10.20.02
ANSI C B.10.20.07
C/C++ 5.6
GNU make 3.7.6.1
GNU RCS/CVS 5.7
HP C Compiler 10.20
HP Linker/Assembler 10.30
HP-UX Developer's Kit for Java JDK 1.1.5
Microsoft Visual Basic 5.0
Microsoft Visual C++ 5.0
Microsoft Visual J++ 1.1
Microsoft Visual Basic 6.0
Microsoft Visual Basic Pro. Edition (SP 2&3) 5.0
Microsoft C++ Pro. Edition 4.2
Microsoft Visual C++ Prol. Edition 5.0
NetExpress 3.0
Object Cobol Developers Suite for UNIX 4.1
Oracle Forms 4.5 4.5.7.1.6
Perl 5.003_07
Picasso 2 2.5f
Power Builder Enterprise 6.0
Power Designer 6.1.0
Visual Component (First Impression) 5.0
Visual Cafe for Java 2.5
DBMS
Microsoft SQL Server 6.5, SP4
Oracle for windows NT 7.3
Oracle Enterprise Manger 7.3.3.0
SQL Plus 3.3
Schedule 4.2 - Page 5
Sybase Adaptive Server 11.0
Sybase Administrative Tools 3.0.0.1887
Sybase Adaptive Server 11.5
Sybase Adaptive Server Enterprise 11.5
Sybase Adaptive Server 11.0.3.2 EBF
Sybase 11.9.2
Sybase Open Client 11.1.1
Sybase CT Access Lib 3.0.1
Communication Tools
Reflection X for windows NT 7.0
Symantec PCAnywhere 8.0
UCX 4.2
Graphics Tools
Macro Media Flash 3 3.0
Other Software
Data Trek EDI 3.01
D & B Desktop Solutions for Windows 6.0
DocuShare 2.0
Fidelity Web Station 1.0
OM Software
Block-Forward Secur Back Office 4.3
Block Forward CIBIOS Trade Annlication 3.0 - 6.7
Dav Ahead Bidding & Scheduling 5.1.16
Hour Ahead Bidding & Scheduling 5.1.15
OM Net OMFX (network gatewav) 2.2.1
Settlement 5.1.7.1
Trade Annlication 5.1.14
Web (DA & HA) 15.5
Block Forward Click 3.01
Part C -- ▇▇▇▇▇ Systems Software
Adjustment Bid Checker 1.0
Block Forward Report Generator 1.0
Block Forward Invoice Run Generator 1.0
Block Forward Clearing Data Retrieval 1.0
Block Forward Ticker 1.0
BuckEye (ISODAB) 2.1
Day Ahead Adjustment Bid Checker 1.0
Day Ahead Pit 0 Bull (ITOS) 1.0
Day Ahead Schedule Difference Checker 1.0
Hour Ahead Schedule Difference Checker 1.0
Schedule 4.2 - Page 6
Manta Ray 1.0
Over Generation Mitigation 1.0
Real Time Data Collection 1.0
Real Time Reporting System 1.0
Settlement Reporter (PXSR/TO Debit) 1.1
Zonal Price Calculators (DA & HA) 1.1.9
Zonal Price Checker (DA &HA) 1.0
Shared Resource Trading &
Scheduling (Shark) 1.0
Schedule 4.2 - Page 7
SCHEDULE 4.4
Client Technology
Managed Equipment (Tentative)
Who Who
Operating Owns Supports Failover
Server Hardware System CPUs RAM Disk It It Capabilities Domain Location
Production
ALHDEV171 HP ▇.▇▇ D6131A NTS4 SP4+ 1 64M 4G PX PX none PXPROD Svr room
ALHDEV172 HP L-Pr D6131A NTS4 SP4+ 1 64M 4G PX PX none PXPROD Svr room
ALHPAP107 Digital Prioris MX6200 NTS4 SP4+ 1 PX PX none PXPROD Svr room
ALHPAP108 Digital Prioris MX6200 NTS4 SP4+ I PX PX none PXPROD Svr room
ALHPAP1 10 Digital Priors MX6200 NTS4 SP4+ 1 PX PX none PXPROD Svr room
ALHPAP1 11 Digital Priors MX6200 NTS4 SP4+ 1 PX PX none PXPROD Svr room
ALHPAPI 13 HP Vectra D4841 NTW4 SP4+ 1 PX PX none PXPROD Svr room
ALHPAP180 HP LXr 8000 NTS4 SP4+ 1 4G mir PX PX ALHPAP181 PXPROD Svr room
ALHPAP181 HP LXr 8000 NTS4 SP4+ 1 4G mir PX PX ALHPAP180 PXPROD Svr room
ALHPAP193 HP L-Pr D6131A NTS4 SP4+ 1 64M 4G mir PX PX none PXPROD Svr room
▇▇▇▇▇▇▇▇▇ HP L-Pr D6131A NTS4 SP4+ I 64M 4G mir PX PX none PXPROD Svr room
ALHPAP195 HP ▇.▇▇ D6131A NTS4 SP4+ 1 64M 4G mir PX PX none PXPROD Svr room
ALHPAP199 HP L-Pr D6131A NTS4 SP4+ 1 64M 4G mir PX PX none PXPROD Svr room
ALHPAP200 HP LXr 8000 NTS4 SP4+ I 4G mir PX PX ALHPAP201 PXPROD Svr room
ALHPAP201 HP LXr 8000 NTS4 SP4+ 1 4G mir PX PX ALHPAP200 PXPROD Svr room
ALHPAP203 HP LXr 8000 NTS4 SP4+ 1 4G mir PX PX ALHPAP204 PXPROD Svr room
ALHPAP2O4 HP LXr 8000 NTS4 SP4+ 1 4G mir PX PX ALHPAP203 PXPROD Svr room
▇▇▇▇▇▇▇▇▇ HP I.Xr 8000 NTS4 SP4+ 1 4G mir PX PX ALHPAP211 PXPROD Svr room
ALHPAP211I HP LXr 8000 NTS4 SP4+ 1 4G mir PX PX ▇▇▇▇▇▇▇▇▇ PXPROD Svr room
ALHPAP7532 HP L-Pr D6131A NTS4 SP4+ 1 64M 4G PX PX ALHPAP7533 PXPROD Svr room
ALHPAP7533 HP L-Pr D6131A NTS4 SP4+ 1 64M 4G PX PX ALHPAP7532 PXPROD Svr room
▇▇▇▇▇▇▇▇ ▇▇▇▇ SP4+ I PX PX none PXPROD Svr room
▇▇▇▇▇▇▇▇ ▇▇▇▇ SP'4+ I PX PX none PXPROD Svr room
ALHPSEC2 HP L-Pr D6131A NTS4 SP4+ 1 64M 4G PX PX none PXOAI Svr room
ALHPWEB10 HP L-Pr D6131A NTS4 SP4+ I 64M 4G PX PX none PXPROD Svr room
AI.HPWEBI1I IBM PC Server 704 NTS4 SP4+ 1 PX PX none PXPROD Svr room
ALHPWEB13 IBM PC Server 704 NTS4 SP4+ 1 PX PX none PXPROD Svr room
ALHPWEB14 IBM PC Server 704 NTS4 SP4+ 1 PX PX none PXPROD Svr room
ALHPWEB17 IBM PC Server 704 NTS4 SP4+ 1 PX PX none PXPROD Svr room
ALHPWEB25 IBM PC Server 704 NTS4 SP4+ 1 PX PX none PXPROD Svr room
BFWDWEB1 HP L-Pr D6131A NTS4 SP4+ 1 64M 4G PX PX BFWDWEB2 PXPROD Svr room
BFWDWEB2 HP ▇.▇▇ D6131A NTS4 SP4+ 1 64M 4G PX PX BFWDWEBI PXPROD Svr room
BFWDTWEB HP ▇.▇▇ D6131A NTS4 SP4+ 1 64M 4G PX PX none PXPROD Svr room
CSAA`2 B CSre 0 T4SFC 2M IM IM nn XA Srrom
o: CSIAPAPPIA IBM PC Server 704 NTS4 SP4+ 1 128M IBM IBM none PXOA Svr room
C: CSIAPMAIL1A IBM PC Server 704 NTS4 SP4+ I PX PX none PXPROD Svr room
IMSINTRA NTS4 SP4+ I PX PX none PXPROD Svr room
co
Help HW OS App DR Hot
Server Function Desk Support Support Support Site
Production
ALHDEV171 Test/Development PX HP PX PX
ALHDEV172 Test/Development PX HP PX PX
ALHPAP107 MDAS ftp server #1 PX Compaq PX Folsom
ALHPAP108 MDAS DB server #1 PX Compaq PX Folsom
ALHPAP1 10 MDAS ftp, server #2,Psoft Apps PX Compaq PX Folsom
ALHPAP1 11 MVDAS DB server #2 PX Compaq PX Folsom
ALHPAPI 13 Settlement Util Processor PX HP PX Folsom Q
ALHPAP180 BDC: PXPROD, PEP+ PX HP PX PX Folsom
ALHPAP181 BDC; PXPROD, Settlement PX HP PX PX Folsom
ALHPAP193 OM Gateway PX HP PX PX Folsom
▇▇▇▇▇▇▇▇▇ OM Gateway PX HP PX PX Folsom
ALHPAP195 OM Gateway PX HP PX PX Folsom
ALHPAP199 WLBS Web Server PX HP PX PX
ALHPAP200 BDC: PXPROD, Buckeye PX HP PX PX Folsom
ALHPAP201 BDC: PXPROD, Peoplesoft PX HP PX PX Folsom
ALHPAP203 BDC PXPROD, SQL7 PX HP PX PX Folsom
ALHPAP2O4 PDC PXPROD PX HP PX PX Folsom
▇▇▇▇▇▇▇▇▇ BDC PXPROD, PXMDAS PX HP PX PX Folsom
ALHPAP211I BDC PXPROD, Intranet PX HP PX PX Folsom
ALHPAP7532 OM Gateway PX HP PX PX Folsom
ALHPAP7533 WLBS Web Server PX HP PX PX
ALHPAP97 Buckeye & Book PX PX
ALHPAP98 PeopleSoft File Share PX PX
ALHPSEC2 PDC: In DMZ PX PX PX
ALHPWEB10 A-Frame DB Server PX HP PX
AI.HPWEBI1I Ext PRMS Web Server PX IBM PX Folsom
ALHPWEB13 DayAhead MCP Server PX IBM PX
ALHPWEB14 HourAhead MCP Server PX IBM PX
ALHPWEB17 Settlements Web Server PX IBM PX
ALHPWEB25 Powerbase PX IBM PX
BFWDWEB1 BF Prod Web Server PX HP PX PX
BFWDWEB2 BF Prod Web Server PX HP PX PX
BFWDTWEB BF Test Web Server PX HP PX PX
CSAA`2 PCPD1IM IM IM IM Flo
o: CSIAPAPPIA PDC PXOAI IBM IBM IBM IBM Folsom
C: CSIAPMAIL1A CALPX web site IBM IBM PX
IMSINTRA Int PRMS Web Server PX IBM PX Folsom
co
Schedule 4.4 - Page
Who Who
Operating Owns Supports Failover
Server Hardware System CPUs RAM Disk It It Capabilities Domain Location
Retired or in non
production status?
ALHPAP1 Digital PWS 200i NTS4 SP4+ 1 64M 4.3G PX PX none PX? Svr room
ALHPAP2 Digital PWS 200i NTS4 SP4+ 1 64M 4.3G PX PX none PX? Svr room
ALHPAP3 Digital PWS 200i NTS4 SP4+ 1 64M 4.3G PX PX none PX? Svr room
ALHPAP28 Digital PWS 200i NTS4 SP4+ 1 64M 4.3G PX PX none PX? Svr room
ALHPAP33 Digital PWS 200i NTS4 SP4+ 1 64M 4.3G PX PX none PX? Svr room
ALHPAP27 Digital PWS 200i NTS4 SP4+ 1 64M 4.3G PX PX none PX? Svr room
ALHPAP52 Digital PWS 200i NTS4 SP4+ 1 64M 4.3G PX PX none PX? Svr room
ALHPAP133 Digital PWS 200i NTS4 SP4+ I 64M 4.3G PX PX none PX? Svr room
ALHPAP134 Digital PWS 200i NTS4 SP4+ I 64M 4.3G PX PX none PX? Svr room
ALHPAP53 Digital PWS 200i NTS4 SP4+ 1 64M 4.3G PX PX none PX? Svr room
ALHPAP88 Digital Priori.
MX6200 NTS4 SP4+ I none PX? Svr room
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ SP4+ I PX PX none PX? Svr room
▇▇▇▇▇▇▇▇ ▇▇▇▇ SP4+ 1 PX PX none PX? Svr room
▇▇▇▇▇▇▇▇▇ NTS4 SP4+ 1 PX PX none PX? Svr room
ALHPAP142 NTS4 SP4+ 1 PX PX none PX? Svr room
ALHPAP138 NTS4 SP4+ 1 PX PX none PX? Svr room
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ SP4+ 1 PX PX none PX? Svr room
ALHPAP80 Digital Priorik
MX6200 NTS4 SP4+ 1 PX PX none PX? Svr room
▇▇▇▇▇▇▇▇ ▇▇▇▇ SP4+ I PX PX none PX? Svr room
ALHPAP171 HP LPr D6131A NTS4 SP4+ 1 64M 4G PX PX ALHPAP172 PXDEV Svr room
ALHPAP172 HP LPr D6131A NTS4 SP4+ 1 64M 4G PX PX ALHPAP171 PXDEV Svr room
ALHPAP109 HP Netserve 6/200 NTS4 SP4+ 1 PX PX none PXPROD Svr room
Help HW OS App
Server Function Desk Support Support Support
ALHPAP1 OMN Gateway PX Compaq PX OM
ALHPAP2 OMN Gateway PX Compaq PX OM
ALHPAP3 OMN Gateway PX Compaq PX OM
ALHPAP28 OMN Gateway PX Compaq PX OM
ALHPAP33 OMN Gateway PX Compaq PX OM
ALHPAP27 OMN Gateway PX Compaq PX OM
ALHPAP52 OMN Gateway PX Compaq PX OM
ALHPAP133 OMN Gateway PX Compaq PX OM
ALHPAP134 OMN Gateway PX Compaq PX OM
ALHPAP53 OMN Gateway PX Compaq PX OM
ALHPAP88
PeopleSoft
Apps PX Compaq PX OM
ALHPAP150 PX PX
ALHPAP80 PX PX
▇▇▇▇▇▇▇▇▇ PX PX
ALHPAP142 PEP+ Test PX PX
ALHPAP138 PX PX
ALHPWEB12 PX PX
ALHPAP80
PX Compaq PX
ALHPAP74 MDAS Test PX PX
ALHPAP171 PDC PXDEV PX HP PX PX
ALHPAP172 BDC PXDEV PX HP PX PX
ALHPAP109 master/
master
db sen PX HP PX
Schedule 4.4 - Page 2
Ca1PX UNIX System Configuration
Alhambra, CA. UNIX Server Inventory (Tentative)
* a3
Prodnol HP-UX HP9000 3.0 81.7 GB Day Ahead & Hour Ahead
10.20 Model K460 Production
altnode HP-UX HP9000 3.0 12.28 GB Day Ahead & Hour Ahead
10.20 Model K460 Secondary
settle HP-UX HP9000 4.2 22.0 GB Settle Production
10.20 Model K460 Sysbase 11.0.3.3
Alhpap5 HP-UX HP9000 2.7 85.36 GB Settle Secondary
10.20 Model K460
Pep 1 HP-UX HP9000 2.1 29.08 GB PEP Plus, Sybase 11.9.2
10.20 Model K460
psoft HP-UX HP9000 3.0 25.54 GB PeopleSoft 7.5.2
10.20 Model K460 SyBase 11.9.2
Setestl HP-UX HP9000 3.8 57.32 GB SE Test Server, Sybase
10.20 Model K460 11.0.3
Settest2 HP-UX HP9000 1.9 40.94 GB SE Test Server, Sybase
10.20 Model K460 11.0.3
Alhpbk51 HP-UX HP9000 2.0 213.64 Data Warehouse,
10.20 Model K460 GB Development and test,
Sybase 11.5.1
Alhpap8 HP-UX HP9000 1.5 24.38 GB Admin. Server, PeopleSoft
10.20 Model K260 Production, Sybase 11.0.3
Alhpap34 HP-UX HP9000 512 MB 32.38 GB Admin. Server, PeopleSoft
10.20 Model K260 Test and Development,
Sybase 11.0.3
Alhpap57 HP-UX HP9000 3.0 137.24 Historical Database, Test
10.20 Model GB Psoft and Settlements,
K460 Sybase
EMC 7800 1.5 TB Raid 0,1 mirrored
Jamaica 6 x 4GB
Jamaica 6 x 4GB
Schedule 4.4 - Page 3
Folsom, CA. UNIX Server Inventory
FOLPAP87 HP-UX HP9000 unknown unknown Sybase, Replication
10.20 K460 DA/HA/SE
FOLPA1OIO HP-UX HP9000 unknown unknown Settlements
10.20 K260
FOLPA108 HP-UX HP9000 unknown unknown Not used.
10.20 K260
Hostname HP-UX HP9000 unknown unknown Not used.
unknown 10.20 K260
EMC 7800 unknown
Schedule 4.4 - Page 4
SCHEDULE 4.5
Required Improvements
The following is a list of the Required Improvements and ▇▇▇▇▇ Systems' estimate
of the number of Full-Time Equivalent PSC Personnel above the number of PSC
Personnel that will be assigned to perform the Core Services, Application
Development Services and Business Consulting Services (the "Baseline") that will
be necessary to implement these Required Improvements.
1. HP-UX Software Level Upgrade
The HP-UX operating system for each Hewlett-Packard computer listed as
Managed Equipment must be upgraded to the most current release.
This upgrade is required to provide baseline, Year 2000 and 64-bit
architectural support. This 64-bit version of the operating system supports
larger file systems, which increases performance and enhances memory
utilization. This task must also include installation of patches, both Y2K
related and Application driven patches. ▇▇▇▇▇ Systems shall manage HP to
complete this Required Improvement under the current agreement between CalPX
and HP.
Estimated PSC Personnel Requirements above Baseline: None
2. Enterprise System Management (ESM) Identification/Implementation
An Enterprise System Management product must be identified and implemented.
▇▇▇▇▇ Systems shall target the evaluation of systems management products and
tools for use by the Computer Operations team to efficiently monitor and
manage the multiple platforms used in the CalPX environment. Once product
selection is completed, an implementation of the targeted environment must be
planned and executed. This includes customization and integration of the
Problem Management and Change Management packages.
Estimated PSC Personnel Requirements above Baseline: 9 FTE-months
3. NT Service Pack
All Managed Equipment running the Microsoft Windows NT operating system must
be upgraded to NT Service Pack 6A.
The current NT environment is at the NT Service Pack 4 plus hot fixes. A
project to implement the new service into each cluster discretely must occur
to resolve known problems with memory leaks and other technical fixes.
Estimated PSC Personnel Requirements above Baseline: None
Schedule 4.5 - Page I
4. Remedy Customization/Implementation/Training
The Remedy(TM) software that ▇▇▇▇▇ Systems uses for problem and change
management must be customized to support the CalPX's specific requirements.
In addition, the escalation process used to support the CalPX's business must
be automated.
This process shall improve the notification and response of technicians when
warning or alerts are issued by Systems.
After the Remedy(TM) software is customized, it must be implemented in the
CalPX's environment to provide access to all authorized PSC Personnel,
including Transitioned Employees, and all authorized CalPX personnel. Each of
the authorized users must be trained to use this software.
This process shall improve the notification and response of technicians when
warning or alerts are issued by Systems.
Estimated PSC Personnel Requirements above Baseline: None
5. HP Firmware Updates
All Hewlett-Packard servers and system components must be inventoried to
determine its current firmware version and, if necessary, upgraded to the
most current firmware version that is commercially available.
Upgrading to the latest firmware versions may resolve issues such as data
corruption, missing interrupts and lost data chains. In addition, these
upgrades should increase reliability and availability. ▇▇▇▇▇ Systems shall
manage HP to complete this Required Improvement under the current agreement
between CalPX and HP.
Estimated PSC Personnel Requirements above Baseline: None
6. Review Backup and Archive Strategies
CalPX backup and archive strategies must be reviewed and updated, if
necessary.
▇▇▇▇▇ Systems shall review the CalPX's requirements for application and data
backup and archival. The methods and tools currently being used to meet these
requirements must be reviewed for compliance.
As appropriate, ▇▇▇▇▇ Systems shall specify changes in these requirements,
methods and tools to manage these requirements more effectively across the
CalPX's Systems. ▇▇▇▇▇ Systems shall review with CalPX the work that must be
done to establish the most appropriate frequency and methodology to meet
CalPX's data recovery requirements.
Schedule 4.5 - Page 2
Estimated PSC Personnel Requirements above Baseline: None
7. Implement Program/Project Management Office
CalPX must implement and use the Program Office/Project Management processes
and procedures to effectively manage programs and projects.
Estimated PSC Personnel Requirements above Baseline: None
8. Implement Change Management Methodology
CalPX must implement the Change Control Procedure for all proposed Changes.
CalPX must also implement the Change Control Board and the IT Steering
Committee.
Estimated PSC Personnel Requirements above Baseline: None
9. Add CalPX IT Operations to Automated Call Distributor (ACD)
The Automated Call Distributor (ACD) system used by ▇▇▇▇▇ Systems must be
used to manage the help desk.
This system must be implemented to provide the capability to efficiently
distribute calls throughout the enterprise and report the call volumes,
service time, queue time, and average talk time. These metrics are critical
when forecasting future operational service levels and requirements. As part
of implementing this Improvement, ▇▇▇▇▇ Systems shall manage CalPX vendor to
implement the required improvement.
Estimated PSC Personnel Requirements above Baseline: None
10. Plan and Implement Consolidated Test Environment
The physical architecture that shall support the testing environment and the
required software and tools necessary to manage production promotion from one
environment to the next (i.e. development to test, test to model office and
model office to production) must be planned, designed and implemented. Also
included in this Required Improvement is planning and implementation of
configuration management/release procedures and the required tools. Test
procedures that describe how applications are to be tested and promoted
through the testing environments, server code, database objects, CalPX based
applications and the tracking of application source code must also be
developed and implemented.
Estimated PSC Personnel Requirements above Baseline: 16 FTE-months.
Schedule 4.5 - Page 3
11. Commercial Disaster Recovery Hot Site
Procedures and systems to be followed to prevent avoidable System failures
and to minimize the adverse effects of unavoidable System failures and
Disasters must be planned, designed and implemented. Disaster Recovery Plans
must be established and implemented via a Commercial Disaster Recovery
Vendor/Site or otherwise. Test Plans must be established, and tests
periodically completed.
Estimated PSC Personnel Requirements above Baseline: 12 FTE-months.
12. Sybase SQL Server Software Level Upgrade - (before Titan goes into
production)
The Sybase SQL Server software installed on each of the servers listed in
Schedule 4.1 must be upgraded to the most current version.
This upgrade is required to ensure continued vendor product support, improve
performance through enhanced concurrency and tuning options, and simplify
administration by standardizing on a single product release.
Estimated PSC Personnel Requirements above Baseline: 14 FTE-months.
13. IT Security
Develop and implement an IT security plan which shall address the following
issues: * End user security awareness * Physical security issues * UserID
security issues * Password security issues * Policies - Expanding the
existing policies to cover specific standards for systems and "User Guides"
for use in the End user security awareness program. * Auditing -
Recommendations for an audit log structure * Enterprise Security Software -
Information of currently available 3rd party security management software.
* Topology - A mapping of systems at CalPX.
* Role Based Access - Data received in other areas can be used for a high
level (not detailed) role based access matrix.
Estimated PSC Personnel Requirements above Baseline: 30 FTE-months.
Schedule 4.5 - Page 4
SCHEDULE 5.1
Service Charges
A. Fees for Base Services.
The rates set forth below shall be adjusted annually in accordance with Section
5.6 of the Agreement.
Service Fee for Core Services:
▇▇▇▇▇ Systems shall calculate a monthly services fee ("Calculated Services Fee")
by multiplying (i) the actual number of person-hours of Core Services performed
by PSC Personnel during such month, divided by 139 (to determine the number of
Full-Time Equivalent PSC Personnel), by (ii) the Core Services Rate.
B. Baseline Bud2et for Core Services
Months one to 12 inclusive: $ 733,100 / month
Months 13 to 36 inclusive: $ 749,250 / month
The Core Services Rate for PSC Personnel is $ 16,650.00 per month for each
Full-Time Equivalent.
C. Fees for IT Procurement Services
As consideration for the IT Procurement Services, CalPX shall pay ▇▇▇▇▇ Systems
an administrative fee equal to 6.0% of the actual third-party cost, including
the cost of freight, insurance, taxes or other similar charges, of purchasing,
leasing or licensing any equipment, software or services.
D. Fees for Applications Development Services and Business Consulting
Services
As consideration for the Applications Development Services, CalPX shall pay
▇▇▇▇▇ Systems a monthly services fee ("Calculated Services Fee") equal to the
sum of (A) the minimum monthly fee set forth below for the core number of
Full-Time Equivalent PSC Personnel available to perform Applications Development
Services, and (B) the amount, if positive, determined on a time and materials
basis by multiplying (i) the actual number of person-hours of Applications
Development performed by PSC Personnel, divided by 139 (to determine the number
of Full-Time Equivalent PSC Personnel), less the core number of the Full-Time
Equivalent PSC Personnel made available by ▇▇▇▇▇ Systems to provide Applications
Development Services (to determine the number of Full-Time Equivalent PSC
Personnel above the core Resources available to perform Applications Development
Services), by (ii) the applicable rate from the table set forth below.
Schedule 5.1 - Page I
As consideration for the Business Consulting Services, CalPX shall pay ▇▇▇▇▇
Systems a monthly services fee ("Calculated Services Fee") equal to the sum of
(A) the minimum monthly fee set forth below for the core number of Full-Time
Equivalent PSC Personnel available to perform Business Consulting Services, and
(B) the amount, if positive, determined on a time and materials basis by
multiplying (i) the actual number of person-hours of Business Consulting
performed by PSC Personnel, divided by 139 (to determine the number of Full-Time
Equivalent PSC Personnel), less the core number of the Full-Time Equivalent PSC
Personnel made available by ▇▇▇▇▇ Systems to provide Business Consulting
Services (to determine the number of Full-Time Equivalent PSC Personnel above
the core Resources available to perform Business Consulting Services), by (ii)
the applicable rate from the table set forth below.
The core number of Full-Time Equivalent PSC Personnel that ▇▇▇▇▇ Systems shall
make available to perform (i) Applications Development Services shall be (a) 11
Full-Time Equivalent PSC Personnel during the first year of the Term, (b) seven
Full-Time Equivalent PSC Personnel during the first eight months of the second
and third years of the Term, and (c) eight Full-Time Equivalent PSC Personnel
during the ninth through twelfth months of the second and third years of the
Term, and (ii) Business Consulting Services shall be two and one half (2.5)
Full-Time Equivalent PSC Personnel for the first 36 months of the Term. If CalPX
requires or uses more services, the rates shall be as set forth based on the
rate schedule below.
E. Rates for Applications Development Services
Minimum Monthly Fee for core Resources:
Month one to 12 inclusive: $ 250,000 / month
Month 13 to 20 inclusive: $ 159,090 / month
Month 21 to 24 inclusive: $ 181,830 /month
Month 25 to 32 inclusive: $ 159,090 /month
Month 33 to 36 inclusive: $ 181,830 /month
Monthly Rate for additional Full-Time Equivalent PSC Personnel to Perform
Applications Development Services
Additional Resources committed for minimum of 12 Months: $ 22,730 / month
Additional Resources committed for less than 12 Months: $ 27,040 / month
F. Rates for Business Consulting Services
Minimum Monthly Fee for core Resources:
Month one to 36 inclusive: $ 59,660 / month
Monthly Rate for additional Full-Time Equivalent PSC Personnel to Perform
Business Consulting Services (except for any Full-Time Equivalent Personnel who
have the positions listed in Schedule 5.2).
Schedule 5.1 - Page 2
Additional Resources committed for minimum of 12 Months: $ 29,200 / month
Additional Resources committed for less than 12 Months: $ 32,050 / month
G. Changes in Baseline Budget
All changes, except as set forth in the Agreement, in Baseline Budget shall be
mutually agreed to by both parties in accordance with the Change Control
Procedure.
The Baseline Budget for the Core Services has been agreed to by ▇▇▇▇▇ Systems
based on a number of key assumptions, including those listed below. If any of
these key assumptions are incorrect, CalPX and ▇▇▇▇▇ Systems shall negotiate an
appropriate adjustment to the Baseline Budget for the Core Services as soon as
practical after determining that the assumptions are incorrect.
* CalPX shall introduce into production the Titan Application (CalPX
settlements calculation application) on or before May 1, 2000.
* CalPX shall not require support for parallel operation of the Titan
Application and its existing suite of settlements applications for more
than 2 months.
* CalPX shall retire the PEP+ and POP applications on or before July 1,
2000.
Schedule 5.1 - Page 3
SCHEDULE 5.2
▇▇▇▇▇ Systems Standard Commercial Rates
▇▇▇▇▇ Systems standard commercial rates as of the Effective Date are set forth
below.
Consulting Hourly Daily Monthly
Senior Advisor N/A $ 7,000.00 $152,000.00
Principal N/A $ 5,000.00 $108,500.00
Senior Engagement Manager N/A $ 4,000.00 $ 87,000.00
Senior Consultant N/A $ 3,000.00 $ 65,000.00
All rates are for services only. Travel and other out-of-pocket expenses are not
included.
Schedule 5.2 - Page I
SCHEDULE 5.4
CaIPX Expense Reimbursement Policy
It is the policy of the California Power Exchange Corporation to reimburse
its employees for necessary and reasonable travel and other actual expenses
incurred in the performance of their duties or assignments. Employees are
expected to exercise reasonable and prudent judgement in incurring such
expenses. This policy outlines broadly the types of such expenses, which are
acceptable for reimbursement and the documentation and approval requirements.
The department officers and directors are responsible for managing and
approving expense reimbursements. In addition, they will determine which
expenses are reasonable or unreasonable given the situation and, in
conformance with this policy, will approve all expense reports. Unreasonable
expenses will not be reimbursed. The Chief Financial Officer and Controller
may challenge expense requests approved by officers and directors. The Chief
Financial Officer and Controller will have final approval authority regarding
the reimbursement of the expense. It is expected that employees will submit
these expenses for reimbursement on a timely basis. Reimbursement should be
requested when the amount is in excess of $100.00 and not more than 45 days
after the expenses are incurred. Expense requests must be properly documented
as to the nature and business purpose of the expenses.
PROCEDURES
DOCUMENTATION
All elements of the expense report must be completed with original invoices
or receipts attached. The only exception to the original invoice requirement
is for airline tickets booked through the Internet (Southwest Airlines only),
where a print out of the download from the Internet will be accepted as an
original invoice. This print out must include the name of the traveler, the
dates of travel, the flight numbers, the departure and destination cities,
and the amount paid. Documentation is required for each expense item in
excess of $35.00. For expenses in excess of $35.00 that are not supported by
a receipt, a memo to the Chief Financial Officer and Controller should be
attached explaining why required procedures were not followed. Reimbursement
of these expenses will be at discretion of the Chief Financial Officer and
Controller. Each individual expense must include the business purpose of the
item. An appropriate business purpose will not be assumed before final
approval. The business purpose for the expenses can be grouped and one
explanation provided for all expenses on the report. The employee must sign
the expense report acknowledging the validity of the charges and supporting
the business reason for the request.
APPROVALS
Schedule 5.4 - Page I
Employees may be required to complete a Travel Authorization form prior to
leaving on a business trip. Use of this document is subject to the discretion of
department senior management. Employees are required to adhere to Travel
Authorization procedures established at the department level. No one is allowed
to approve his or her own expenses and must have their reimbursement request
approved by their supervisor. Expense reports may not be approved by a peer of
the employee's supervisor. The Audit Committee of the Governing Board will
direct the Internal Auditor to review the CEO's expense reports.
TYPES OF EXPENSES
Transportation
Air Travel
Employees are expected to use commercial air travel. Use of charter aircraft
or personal aircraft is not allowed to conduct California Power Exchange
business. Airfare may be booked through a travel agent the Internet, or
directly with the Airline. All airfare must be charged to either the company
American Express or Diners Club card. Employees are responsible for paying
these charges to the credit card company. Employees should always strive to
travel at the lowest available fare. If the lowest available fare is not
utilized, the employee must indicate the reason on the expense report. If
coach fare is not available, an explanation must be documented on the expense
report form. Employees may fly business class for scheduled flights more than
three hours in duration. For scheduled flights less than three hours in
duration, employees are expected to book coach level fares. The company will
not reimburse employees for flying first class. Employees are not allowed to
purchase upgradable coach fares so that first class upgrade certificates can
be used. In addition, the CalPX will not reimburse employees for the cost of
first class upgrade certificates. If an employee chooses to upgrade to first
class travel, only the lowest available coach fare will be reimbursed. Travel
should not be scheduled to earn frequent flyer awards at the detriment of the
California Power Exchange. Frequent flyer awards are the property of the
employees. Expenses will only be reimbursed after travel is completed.
Receipts showing the total price must be included for reimbursement.
Car Rental
Car rental should be limited to use when alternative transportation such as
taxi or shuttles is not available or not economical. Receipts showing the
total price must be included for reimbursement. Car rental reservations may
be made either through a travel agent, the Internet, or directly with the
rental car company. Compact or intermediate cars should be rented based on
the
Schedule 5.4 - Page 2
number of employees traveling. Employees should make good judgements as to
the gasoline options offered with the rental car.
The California Power Exchange carries liability and vehicle damage insurance
that protects the CalPX when employees rent vehicles while on CalPX business.
Employees must indicate on the rental form the California Power Exchange 's
name to put this insurance into effect. The CalPX will not reimburse
employees for insurance from rental agencies, or credit cards offers of other
agencies. Employees should decline insurance coverage offered by rental
agencies unless they choose to purchase the insurance without reimbursement.
In the event a California Power Exchange employee has a claim for damage to a
vehicle while on CalPX business, the employee must contact the Chief
Financial Officer and Controller immediately so that claims may be processed
with the CalPX carrier. If an employee rents a vehicle while on California
Power Exchange business, and extends its time at either the beginning or end
of the trip for personal reasons, the CalPX insurance only covers the time
related to CalPX business. Employees are responsible for the cost of vehicle
insurance while using it for personal use.
Business use of Personal Vehicles
When it is necessary for employees to use their personal vehicle for
business purposes, reimbursement of mileage will be made in lieu of other
vehicle charges such as gas and oil, insurance, financing costs or other
wear and tear. The currently approved IRS reimbursement rate will be used.
No reimbursement will be made for employees' normal commuting to their
assigned work location. Requests for reimbursement of business mileage
should reflect a reduction of normal commuting miles.
Parking, Tolls and Other Costs
Parking, taxi, shuttle, tolls, tips and other expenses in excess of $35.00
must be supported by a receipt. Cost of parking fines or other driving
citations will not be reimbursed.
Loding
Aggregations of multiple days stay
Employees may enter multiple days stay as one line on the report, provided
the supporting documentation clearly shows the daily rate and taxes
applicable. The original receipt from the hotel or motel must be attached.
Meals, tips, telephone, parking or other charges on the hotel or motel
▇▇▇▇ must be shown in the proper area of the expense report.
Schedule 5.4 - Page 3
Movies, snacks, and mini-bar charges are not reimbursable. Reasonable tips
to hotel personnel should be shown as other incidental expense.
Meals
Employee Meals
Employees' expenses for meals are expected to be reasonable given the
location. Expenses in excess of $35.00 per meal must have receipts showing
the name of the establishment and the total amount of the meal including tip.
Tips should be included in determining the $35.00 amount and be shown as part
of the meal costs.
Business Meals
These expenses must constitute an ordinary and necessary business expense.
Expenditures should not be lavish or extravagant. Employees must document the
business purpose of the meal, the name of the restaurant, and include the
names, titles and the name of the company for all in attendance.
Entertainment
When it is necessary to entertain customers or other business associates
of the California Power Exchange in connections with the conduct of
business, documentation as to the nature of the entertainment,
participants (by name, title and company name), location, and business
purpose is required.
Non-Reimbursable Expenses
In general, expenses of a personal nature, that are unreasonable or
excessive, and that not specifically related to the conduct of the
business activities of the California Power Exchange are not reimbursable.
Examples of specifically excluded costs are spousal travel expenses,
excessive alcoholic beverages, flowers, other gifts for employees, credit
card fees or interest charges, memberships in travel clubs or other
airport services. Employee meals, other than for out of town travel, are
not reimbursable This exclusion includes employee working meals which will
not be reimbursed. When employees are having a meal, the most senior
employee, officer or director should report the expense so that no one
approving expenses for reimbursement would be approving a meal in which
they participated.
Schedule 5.4 - Page 4
SCHEDULE 7.3
Supplementary Procedures for California Power Exchange Disputes
1. Applicability
(a) The Supplementary Procedures for California Power Exchange Disputes
(hereinafter, "the Procedures") shall apply to all cases administered by the
American Arbitration Association (hereinafter, "AAA") under its Commercial
Mediation Rules and its Commercial Arbitration Rules in which a claim is made
arising out of the Power Exchange Operating Agreement and Tariff
(hereinafter, "the Tariff') filed with the Federal Energy Regulatory
Commission (hereinafter, "FERC"). The Procedures are designed to complement
the Commercial Mediation Rules and the Commercial Arbitration Rules; to the
extent that there is any variance between those rules and the Procedures, the
Procedures shall control.
(b) The parties to any arbitration proceeding that is to be subject to the
Procedures may, by written consent of all parties, agree to eliminate, modify
or alter any of the Procedures, and, in such case, the Procedures as so
modified or altered shall apply to that particular case.
(c) Except as limited below or otherwise as limited by law (including the
rights of any party to file a complaint with FERC under the relevant
provisions of the Federal Power Act (hereinafter, "FPA"), the Procedures
shall apply to all disputes between parties which arise under the Tariff. The
Procedures shall not apply:
(1) where the decision of the California Power Exchange
(hereinafter, "PX") is stated in the provisions of the Tariff to be final;
(2) where the PX is bound, as a Scheduling Coordinator under the
California Independent System Operator Agreement and Tariff, by a final
determination of the California Independent System Operator ("ISO"), in which
case the final determination of the ISO shall be binding on all PX
Participants;
(3) to disputes arising under existing contracts which pre-date
the creation of the PX, except as the disputing parties may otherwise agree;
or
(4) to disputes as to whether rates and charges set forth in the
PX Tariff are just and reasonable under the FPA.
(d) If a party to a dispute is a government agency, application of the
dispute resolution process procedures shall be subject to any limitations
imposed on the agency by law, including, but not limited to, the authority of
the agency to effect a
Schedule 7.3 - Page 1
remedy. If the governmental agency is a federal entity, the dispute resolution
process shall not apply to disputes involving issues arising under the United
States Constitution.
(e) Where the court having jurisdiction so determines, use of the
dispute resolution process shall not be a condition precedent to court action
for injunctive relief nor shall the provision of the California Code of Civil
Procedure Section 1281 et sei. apply to such court actions.
2. Negotiation
The PX and PX Participants who may be parties to a dispute shall make
good- faith efforts to negotiate and resolve any dispute between them arising
under the PX Tariff prior to invoking mediation or arbitration. Each party shall
designate in writing an individual with authority to negotiate the matter in
dispute in such negotiations.
3. Statement of Claim
(a) In the event a dispute is not resolved through good-faith
negotiations, any one of the parties may submit in writing a statement of claim
to the AAA, to each other disputing party that was involved in good faith
negotiations under Section 2 and to the PX. Such submission shall constitute
commencement of the dispute resolution process.
(b) The statement of claim shall set forth in reasonable detail (i)
each claim, (ii) the relief sought, including the proposed award, if applicable,
(iii) a summary of the grounds for such relief and the basis for each claim,
(iv) the parties to the dispute, (v) the individuals having knowledge of each
claim and (vi) a summary of the claim suitable for publication by the PX.
(c) The other disputing parties identified in the statement of claim
prepared pursuant to Section 3(a) shall similarly submit in writing to the AAA
their respective statement of claim (which may be a response) and a summary of
their claim (or response) suitable for publication by the PX within fourteen
(14) days of the submission of the initial statement of claim or such longer
time period as the AAA may permit following application by the responding party.
(d) Any responding party wishing to submit a counterclaim must do so in
writing and include such counterclaim in their responsive statement of claim.
(e) The PX in the PX newsletter, electronic bulletin board, or any
other method adopted by the PX ADR Committee, shall, within fourteen (14) days
of receipt by the PX of the statement(s) of claim, publish a summary of any such
statements. No Market Participant shall be considered as having received notice
of a
Schedule 7.3 - Page 2
claim decided or relief granted by a decision made under the Procedures unless
the summary of the statement(s) of claim published by the PX includes such claim
or relief.
4. Mediation
After submission of the statement(s) of claim, the parties to a dispute
may request mediation if at least 75% of them so agree, or in disputes involving
only three parties, if at least two of the parties so agree. A submission to
mediation form signed by the requisite number of agreeing parties must be filed
with the AAA. Intervention shall not be allowed during the mediation stage.
5. Selection of the Mediator
(a) Upon receipt of a signed submission form and payment of the filing
fee by the parties, the AAA shall distribute to the parties by facsimile or
other electronic means a list containing the names of at least seven (7)
prospective mediators with mediation experience, or with technical or business
experience in the electric power industry, or both, as AAA shall deem
appropriate to the dispute.
(b) The parties shall either:
(i) agree upon a mediator from the list provided, or from any
alternative source provided that the prospective mediators meet the
requisite qualifications or
(ii) alternate in striking names from the list provided by AAA
with the last name remaining on the list being assigned the mediator
(the first party to strike a name shall be determined by lottery) or
(iii) request that AAA select a mediator with the appropriate
qualifications.
(c) The parties shall have seven (7) days from the date of receipt of
the AAA's list of prospective mediators to complete the process of selecting and
appointing a mediator.
(d) The mediator shall comply with the disclosures required by Section
11 of the Procedures.
6. Mediation Process
(a) The mediator and representatives of the disputing parties with
authority to settle the dispute shall, within fourteen (14) days after the
mediator's date of appointment, schedule a date within sixty (60) days
thereafter on which to mediate the dispute.
Schedule 7.3 - Page 3
(b) Matters discussed during the mediation shall be confidential and
shall not be referred to in any subsequent proceeding.
(c) With the consent of all disputing parties, a resolution may include
referring the dispute directly to a technical body (such as a Western Systems
Coordinating Council technical advisory panel) for resolution or an advisory
opinion, or referring the dispute directly to FERC. Within thirty (30) days, the
PX shall publish notice of the referral of the dispute in the PX newsletter or
electronic bulletin board, or any other method adopted by the PX ADR Committee.
7. Termination of Mediation
If (a) thirty (30) days have passed since the filing of the statement
of the claim and the disputing parties have not succeeded in negotiating a
resolution of the dispute, or (b) thirty (30) days have passed since the
parties' first meeting with the mediator, whichever is later, such parties shall
be deemed to be at an impasse and any disputing party may then commence the
arbitration process, unless all of the parties by mutual agreement decide to
extend the time for mediation.
8. Demand for Arbitration
A party seeking arbitration shall provide notice of its demand for
arbitration to the other disputing parties identified in the statement(s) of
claim, the AAA and the PX. The PX shall publish notice of such demand in the PX
newsletter or electronic bulletin board, or any other method adopted by the PX
ADR Committee within fourteen (14) days.
9. Intervention by Market Participants or Other Third Parties
Upon receipt of the notice of a demand for arbitration, the AAA shall
acknowledge receipt of the matter to the parties named in the notice. The AAA
shall allow a period of thirty (30) days following the date of publication of
the notice by the PX for third parties whose interests may be affected by the
outcome of the dispute to file a written petition to appear and testify at
arbitration hearings. If no petitions are received from intervening third
parties within said thirty (30) day period, the case will move forward in
accordance with Section 10 of the Procedures. Petitions to intervene shall be in
writing and shall set forth the grounds of the proposed intervention, the
position and interest of the petitioner in the proceeding, and whether
petitioner's position is in support of or opposition to the relief sought in the
notice. Petitioners for intervention also shall pay the appropriate filing fee
if the intervention is challenged.
Upon receipt of a petition to intervene from any third party, the AAA
will invite the comments of the original parties set forth on the notice. If no
objection is raised within fourteen (14) days to the petitions of the
intervening third parties, the
Schedule 7.3 - Page 4
petitioners shall be allowed to participate as requested and the case will move
forward in accordance with Section 10 of the Procedures.
If any timely objection is received to any petition for intervention,
the AAA will appoint one neutral intervention arbitrator, without the submission
of lists, to consider the petitions and objections and to make a binding
determination regarding the participation of the party or parties requesting to
intervene. The intervention arbitrator will be subject to the disclosures
required by Section 11 of the Procedures.
Upon confirmation of the appointment of the intervention arbitrator,
the AAA will deliver to him or her the relevant petitions and objections
thereto, and the intervention arbitrator will render a written decision within
fourteen (14) days of receipt of those documents, without oral hearings. The
arbitration shall, upon good cause shown, grant the petition(s) for intervention
provided that the issues in the arbitration will not be unduly broadened or the
arbitration unduly extended. The intervenors may only participate to the extent
authorized by the intervention arbitrator. The case will then move forward in
accordance with Section 10 of the Procedures. The intervenor(s) shall file a
statement of claim, pay the appropriate filing fee and share in the costs
associated with the arbitration in an amount to be determined by the
arbitrator(s) appointed to hear the case.
10. Selection of the Arbitrator(s)
Disputes Under $1,000,000 Where the total amount of the claims and
counterclaims in controversy is less than $1,000,000 (exclusive of legal costs
and interest), the disputing parties shall select within fourteen (14) days an
arbitrator from a list containing the names of at least ten (10) individuals
with arbitration experience, or with technical or business experience in the
electric power industry, or both. The AAA shall supply the list following
expiration of the intervention period, submission of the formal demand for
arbitration and payment of any appropriate filing fees. If the parties cannot
agree upon an arbitrator within the stated time, the parties shall take turns
striking names from the list of proposed arbitrators. The first party to strike
a name shall be determined by lottery. The last name remaining on the list shall
be designated the arbitrator.
Disputes of $1,000,000 or More Where the total amount of claims and
counterclaims in controversy is $1,000,000 or more (exclusive of interest and
legal costs), the disputing parties may (a) agree on any person to serve as a
single arbitrator, or (b) shall endeavor in good faith to agree within fourteen
(14) days on a single arbitrator from a list of ten (10) individuals with
arbitration experience, or with technical or business experience in the electric
power industry, or both. The AAA shall supply the list following expiration of
the intervention period, submission of the demand for arbitration and payment of
any appropriate filing fees. If the parties are unable to agree on a single
arbitrator within the stated time, the party or parties
Schedule 7.3 - Page 5
demanding arbitration shall designate one arbitrator and the party or parties
responding to the demand for arbitration shall designate one arbitrator, in both
cases from the AAA's list of arbitrators no later than the tenth (10th) day
after the expiration of the stated time (the intervention arbitrator shall
determine the position of intervenors for the purposes of arbitrator selection).
The two arbitrators so chosen shall choose a third arbitrator from the AAA's
list of arbitrators.
11. Disclosures Required of Mediators and Arbitrators
The designated mediator or arbitrator(s) shall be required to disclose
to the parties any circumstances which might preclude them from acting in an
objective and impartial manner. Each mediator or arbitrator shall disclose:
(a) any direct financial or personal interest in the outcome of the
mediation or the arbitration;
(b) any information required to be disclosed by the California Code of
Civil Procedure Section 1281.9; and,
(c) any existing or past financial, business, professional or personal
interests that are likely to affect impartiality or might reasonably create an
appearance of partiality or bias. Designated mediators or arbitrators shall
disclose any relationships that they personally have with any party or its
counsel, or with any individual whom they have been told will be a witness. They
should also disclose any such relationship involving members of their families
or their current employers, partners, or business associates. Designated
mediators or arbitrators shall make a reasonable effort to inform themselves of
any interests or relationships described above. The obligation to disclose
interests, relationships, or circumstances that might preclude a mediator or an
arbitrator from acting in an objective and impartial manner is a continuing duty
that requires mediators and arbitrators to disclose, at any stage of the
mediation or the arbitration, any such interests, relationships, or
circumstances that arise, or are recalled or discovered. If, as a result of the
continuing disclosure duty, a mediator or an arbitrator makes a disclosure which
is likely to affect his or her impartiality, or might reasonably create an
appearance of partiality or bias or if a party independently discovers the
existence of such circumstances, a party wishing to object to the continuing use
of a mediator or an arbitrator must provide written notice of the objection to
the other parties within ten (10) days of receipt of the mediator's or
arbitrator's disclosure or the date of a party's discovery of the circumstances
giving rise to that party's objection. Failure to provide such notice shall be
deemed to be a waiver of such objection. If a party timely provides a notice of
objection to the continuing use of the mediator or the arbitrator, the parties
shall
Schedule 7.3 - Page 6
attempt to agree whether the mediator or the arbitrator should be dismissed and
replaced in the manner described in Section 5 or 6 of the Procedures. If, within
ten (10) days of a party's objection notice the parties have not agreed on how
to proceed, the matter shall be referred to the AAA for resolution. With respect
to intervention proceedings, the term "party" as used in this Section 1 shall
include only the petitioner(s) in intervention and any challengers.
12. Modification of Arbitration Procedures
In determining whether to modify the standard procedures for use in the
pending matter, the arbitrator(s) shall consider (a) the complexity of the
dispute, (b) the extent to which facts are disputed, (c) the extent to which the
credibility of witnesses is relevant to a resolution, (d) the amount in
controversy, and (e) the opinions of, and any representations made by, the
parties. Alternatively, the parties may, by written agreement, modify the
standard procedures. In the event of a disagreement between the arbitrator(s)
and the written agreement of the parties regarding arbitration procedures to be
utilized, the parties' written agreement shall prevail.
13. Remedies
(a) "Baseball" Arbitration If all of the parties agree to conduct the
arbitration "baseball" style, each party shall submit to the arbitrator(s) and
exchange with each other their last best offers in the form of the award they
believe the arbitrator(s) should make, not less than seven (7) days in advance
of the date fixed for the hearing, or such other date as the arbitrator(s) may
decide. If a party fails to submit its last best offer in accordance with this
Section, that party shall be deemed to have accepted the offer proposed by the
other party. The arbitrator(s) shall be limited to awarding only one of the
proposed offers, and may not determine an alternative or compromise remedy.
(b) Arbitrator's Discretion Unless all of the parties agree to conduct
the arbitration "baseball" style, the arbitrators shall have the discretion to
grant the relief sought by a party, or determine such other remedy as is
appropriate. Unless otherwise expressly limited herein, the arbitrators shall
have the authority to award any remedy or relief available from FERC, or any
court of competent jurisdiction. Where any PX Document allows the parties to
reach an agreement on a matter at some future time and provides that defaults or
disputes shall be referred to the PX ADR Procedures, the arbitrator(s) shall
make a decision on the matter considering what is fair and reasonable in light
of the circumstances.
14. Summary Disposition
Schedule 7.3 - Page 7
The arbitrator(s) shall dispose in a summary manner a statement of
claim, response to a statement of claim, counterclaim, demand for arbitration or
a response to a demand for arbitration that in the reasoned opinion of the
arbitrator(s) does not have a good faith basis in either law or fact. If the
arbitrator(s) make a determination that there is no good faith basis in either
law or fact, the arbitrator(s) shall have discretion to award the costs of the
time, expenses, and other charges of the arbitrator(s) to the prevailing party.
A determination made under this Section (a) may be made any time after the
review and consideration by the arbitrator(s) of the parties' briefs, which may
be before a hearing is held on the matter and (b) is subject to appeal under the
Tariff.
15. Discovery Procedures
Adequate provision for the discovery of relevant facts, including the
taking of testimony under oath, production of relevant documents and other
things, the presentation of evidence, the taking of samples, conducting of
tests, and inspection of land and tangible items shall be granted by the
arbitrator(s). When deciding the nature and extent of such discovery, the
arbitrator(s) shall take into account (a) the complexity of the dispute, (b) the
extent to which facts are disputed, (c) the extent to which the credibility of
witnesses is relevant to a resolution, and (d) the amount in controversy.
Discovery disputes shall be resolved by the arbitrator(s) by telephonic means or
other means determined by the arbitrator(s).
Schedule 7.3 - Page 8
16. Evidentiary Hearing
An evidentiary hearing with provision for the examination and
cross-examination of witnesses shall be conducted unless all parties consent in
writing to the resolution of the matter on the basis of the written record. The
forms and methods for taking evidence shall be determined by the arbitrator(s)
and may be modified pursuant to Section 12 of the Procedures. The arbitrator(s)
may require such written or other submissions from the parties as deemed
appropriate by the arbitrator(s), including submission of direct and rebuttal
testimony of witnesses in written form. The arbitrator(s) may exclude any
evidence that is irrelevant, immaterial, unduly repetitious, unduly prejudicial
or privileged. The arbitrator(s) shall compile a complete evidentiary record of
the arbitration hearing (that may include a summary of testimony presented and
the briefs, affidavits and exhibits submitted), which shall be available to the
parties upon request on completion of the arbitration.
17. Confidentiality
Subject to the other provisions of the Procedures, any party may claim
that information contained in a document otherwise subject to discovery is
"confidential" if such information would be so characterized under the Federal
Rules of Evidence. The party making such claim shall provide to the
arbitrator(s) in writing the basis for the assertion. If the claim of
confidentiality is confirmed by the arbitrator(s), they shall establish
requirements for the protection of such documents or other information
designated as "confidential" as may be reasonable and necessary to protect the
confidentiality and commercial value of such information. Any party disclosing
information in violation of these provisions or requirements established by the
arbitrator(s), unless such disclosure is required by federal or state law or by
a court order, shall thereby (a) waive any right to introduce or otherwise use
such information in any judicial, regulatory, or other legal or dispute
resolution proceeding, including the proceeding in which the information was
obtained and (b) be subject to monetary sanctions by the arbitrator(s) and
injunctive relief in a court of competent jurisdiction.
18. Timetable
Promptly after appointment, the arbitrator(s) shall set a date for the
issuance of the arbitration decision, which shall be within six (6) months (or
such earlier date as the parties and the arbitrator(s) may agree) from the date
of their appointment, with other dates, including the dates for an evidentiary
hearing or other final submissions of evidence, set in light of this date. The
date for the evidentiary hearing or other final submission of evidence may be
extended by the reasonable discretion of the arbitrator(s). The arbitrator(s)
shall have the power to impose sanctions, including dismissal of the proceeding,
for dilatory tactics or undue delay in completing the arbitration proceedings.
Schedule 7.3 - Page 9
19. Decision
(a) Except as provided below with respect to the "baseball" style
arbitration, the arbitrator(s) shall issue a written decision (and a summary
suitable for publication by the PX) granting the relief requested by one of the
parties, or such other remedy as is appropriate, if any, and shall include
findings of fact and law. The arbitrator'(s) decision shall be based on the
evidence in the record and the terms of PX Documents, as applicable, and shall
consider (and not violate) applicable substantive United States federal law,
including the FPA, and any applicable FERC regulations and decisions or
applicable substantive state law. Additionally, the arbitrator(s) may consider
relevant decisions in previous arbitration proceedings. A summary of the
disputed matter and the decision of the arbitrator(s) shall be published in the
PX newsletter or electronic bulletin board, or any other method adopted by the
PX ADR Committee, and maintained by the PX.
(b) In an arbitration conducted "baseball" style, the arbitrator(s)
shall issue a written decision adopting one of the awards proposed by the
parties, and shall include findings of fact and law. The decision of the
arbitrator(s) shall be based upon the evidence in the record and the terms of PX
Documents, as applicable, and shall consider (and not violate) applicable
substantive United States federal law, including the FPA, and any applicable
FERC regulations and decisions or applicable substantive state law. If the
arbitrator(s) conclude that no proposed award is consistent with the factors
enumerated in the evidence in the record and the terms of PX Documents, as
applicable, or with the applicable substantive United States federal law,
including the FPA, and any applicable FERC regulations and decisions or with the
applicable substantive state law, or address all of the issues in dispute, the
arbitrator(s) shall specify how each proposed award is deficient and direct that
the parties submit new proposed awards that cure the identified deficiencies. A
summary of the disputed matter and the decision of the arbitrator(s) shall be
published within thirty (30) days in the PX newsletter or electronic bulletin
board, or any other method adopted by the PX ADR Committee. An award shall not
be deemed to be precedential.
(c) Where a three-person panel of arbitrators is appointed pursuant to
Section 10 of the Procedures, at least two of the arbitrators must agree on the
decision.
20. Compliance
Schedule 7.3 - Page 10
Unless the decision of the arbitrator(s) is appealed to FERC or a court
of competent jurisdiction, the disputing parties shall, upon receipt of the
decision, immediately take whatever action is required to comply with the award
to the extent the award does not require regulatory action. An award that is not
appealed shall be deemed to have the same force and effect as an order entered
by the FERC or any court of competent jurisdiction.
21. Enforcement
Following the expiration of the time for appeal of an award, any party
may apply to FERC or any court of competent jurisdiction for entry and
enforcement of judgement based on the award.
22. Costs
Subject to the adjustment pursuant to Section 9 with respect to third
party intervention, the costs of the time, expenses, and other charges of the
arbitrator(s) shall be borne by the parties to the dispute, with each side on an
arbitrated issue bearing its pro-rata share of such costs, and each party to an
arbitration proceeding bearing its own costs and fees. If the arbitrator(s)
determine that a demand for arbitration or response to a demand for arbitration
was made in bad faith, the arbitrator(s) shall have the discretion to award the
costs of the time, expenses, and other charges of the arbitrator(s) to the
winning party. Notwithstanding the above, at the discretion of the
arbitrator(s), the winning party in any dispute which has resulted in the
enforcement of an important right affecting the public interest shall not be
required to pay any of the costs of the arbitrator(s) and may recover such of
its own reasonable attorney fees, expert witness fees, and other reasonable
costs from the losing party to the dispute if (a) a significant benefit, whether
pecuniary or non-pecuniary, has been conferred on the general public, (b) the
necessity and financial burden of private enforcement are such as to make the
award appropriate and (c) such fees should not, in the interest of justice, be
paid out of the recovery. The parties should be aware of Rules 48-51 of the
AAA's Commercial Arbitration Rules and pages 13-14 of the AAA's Commercial
Mediation Rules regarding costs. A complete fee schedule is attached to the
Procedures.
23. Appellate Record
The parties intend that FERC or the court of competent jurisdiction
should afford substantial deference to the factual findings of the
arbitrator(s). No party shall seek to expand the record before the FERC or court
of competent jurisdiction beyond that assembled by the arbitrator(s), except (a)
by making reference to legal authority which did not exist at the time of the
decision of the arbitrator(s), or (b) if such party contends the decision was
based upon or affected by fraud, collusion, corruption, misconduct or
misrepresentation.
Schedule 7.3 - Page 11
24. Appellate Procedures
(a) If a party to an arbitration desires to appeal an award, that party
shall provide a notice of appeal to the PX and all parties within fourteen (14)
days following the date of the award. The PX shall publish within fourteen (14)
days' notice of the appeal in the PX newsletter or electronic bulletin board, or
any other method adopted by the PX ADR Committee. Within ten (10) days of filing
the notice of appeal, the appellant must file an appropriate application,
petition or motion with FERC to trigger review under the FPA or with a court of
competent jurisdiction. Such filing shall state that the subject matter had been
the subject of arbitration pursuant to the Tariff.
(b) Within thirty (30) days of the notice of appeal (or such other
period as FERC or the court of competent jurisdiction may specify) the appellant
shall file the complete evidentiary record of the arbitration and a copy of the
award with FERC or with the court of competent jurisdiction. The appellant shall
serve copies of a description of all materials included in the submitted
evidentiary record on the PX and all parties.
(c) Implementation of the award shall be deemed stayed pending an
appeal unless and until, at the request of a party, the FERC or the court of
competent jurisdiction to which an appeal has been filed issues an order
dissolving, shortening, or extending such stay. However, a summary of each
appeal shall be published in the PX newsletter or electronic bulletin board, or
any other method adopted by the PX ADR Committee.
(d) FERC orders resulting from appeal shall be subject to judicial
review pursuant to the FPA.
Schedule 7.3 - Page 12
EXHIBIT A
FEE SCHEDULE
Mediation Services.
$150.00 per party filing fee.
- plus compensation per hour for the mediator split by the
parties (hourly rate of compensation will vary depending upon
the mediator selected.
- plus $75.00 per hour surcharge per hour of mediator service
(split by the parties to cover AAA's administrative services).
AAA's delivery of mediation services commences upon the filing of a
submission to mediation form with AAA that contains the requisite
number of signatures as established by the PX Tariff.
2. Arbitration Services. AAA's Commercial Arbitration administrative
fees are based on the amount of the claim or counterclaim. Arbitrator
compensation is additional. Unless the parties agree otherwise, arbitrator
compensation and administrative fees are subject to allocation by the arbitrator
in the final award. Services in respect of intervention requests shall be paid
pursuant to Section 3 of this Exhibit A. a. Filing Fees. A nonrefundable filing
fee is payable in full by the filing party when a claim, counterclaim or
additional claim is filed, as follows:
Amount of Claim Filing Fee
Up to $10,000 $ 500.00
Above 10,000 to $50,000 750.00
Above $50,000 to $100,000 1,250.00
Above $100,000 to $250,000 2,000.00
Above $250,000 to $500,000 3,500.00
Above $500,000 to $1,000,000 5,000.00
Above $1,000,000 to $5,000,000 7,000.00
When no amount can be stated at the time of filing, the minimum fee is
$2,000, subject to increase when the claim or counterclaim is
disclosed. The minimum filing fee for any case having three arbitrators
is $2,000. When a claim or counterclaim is not for a monetary amount,
AAA shall determine an appropriate filing fee.
Schedule 7.3 - Page 13
The administrative fee for claims in excess of $5,000,000 will be
negotiated with the parties to the dispute.
The expedited procedures outlined in sections 53-57 of the Commercial
Arbitration Rules (as modified herein) shall apply in any case where no
disclosed claim or counterclaim exceeds $50,000, exclusive of interest and
arbitration cost. Those procedures provide for arbitrators to be directly
appointed by AAA. If the parties desire to chose an arbitrator as provided in
Section 7.3.1.1 of the PX Tariff, a service charge of $150 will be payable by
each party.
b. Hearing Fees. For each day of hearing held before a single
arbitrator, an administrative fee of$ 150 is payable by each party. For each day
of hearing held before a multi-arbitrator panel, an administrative fee of $250
is payable by each party. There is no AAA hearing fee for the initial Procedural
Hearing. There is no hearing fee for the initial hearing in cases in which no
party's claim exceeds $10,000, administered under the expedited procedures, but
the arbitrator's compensation shall be split by the parties (hourly rate of
compensation will vary depending upon the arbitrator selected).
C. Postponement/Cancellation Fees. A fee of $150 is payable by a party
causing a postponement of any hearing scheduled before a single arbitrator. A
fee of $250 is payable by a party causing a postponement of any hearing
scheduled before a multi-arbitrator panel.
d. Suspension for Nonpayment. If arbitrator compensation or
administrative charges have not been paid in full, the administrator may so
inform the parties in order that one of them may advance the required payment.
If such payments are not made, the arbitrator or arbitrator panel may order the
suspension or termination of the proceedings. If no arbitrator has yet been
appointed, the administrator may suspend the proceedings.
3. Intervention Services. There will be no additional charge if an
intervention request is not challenged. If the request for intervention is
challenged by a party to the dispute, the following fee schedule shall apply:
- Each challenger and each challenged intervenor shall pay a
$150 fee (even if parties make joint filings)
- plus compensation per hour for the arbitrator split between
the intervenor(s) being challenged and the challenger(s)
(compensation rate will vary depending upon the arbitrator
selected)
- plus $75 surcharge per hour of arbitrator compensation split
by the intervenor being challenged and by the challenger(s)
(to cover AAA administrative costs).
Schedule 7.3 - Page 14
- If the arbitrator finds that an intervention request or
challenge was made in bad faith or for purposes of delay, the
arbitrator shall have discretion to assess all of the fees and
costs related to the intervention arbitration to the other
party.
- After an intervention request has been granted, the intervenor
shall file a statement of claim. If the intervenor seeks
separate monetary relief the intervenor shall pay the filing
fee set forth in Section 2 of this Exhibit A with respect to
arbitration issues.
Schedule 7.3 - Page 15
SCHEDULE 7.8
Disruption of Critical Services
▇▇▇▇▇ Systems is providing Services that support the Critical Services set forth
below. In the event any of these Critical Services become unavailable
("disruption"), ▇▇▇▇▇ Systems shall (in addition to its other obligations under
this Agreement) make all reasonable commercial efforts, as applicable, to
promptly restore functionality of such Critical Services through workarounds or
transfer of operations to the disaster recovery site. In the event ▇▇▇▇▇ Systems
is not able to restore the Critical Services within such cure period, CalPX
shall, in addition to any other rights or remedies under this Agreement, have
the rights set forth in Section 7.8 of this Agreement.
This schedule may be revised from time to time by amending this Agreement.
Critical Service Cure Period No. of Disruptions in a 6
Month Time Period*
Day Ahead Trading 48 hours 3
Day Ahead Scheduling 48 hours 3
Day-Of Trading 72 hours 3
Hour-Ahead Scheduling 72 hours 3
Real-Time Operations 72 hours 3
Block Forward Trading 72 hours 3
Metering 168 hours 3
Settlements 168 hours 3
Billing 168 hours 3
Dispute Resolution 168 hours 3
Participant Registration 72 hours 3
Master File Update 72 hours 3
Schedule 7.8 - Page I