EXHIBIT 99.516
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
frill 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 CalPX 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 CalPX's opinion, any individual assigned to the CalPX
account as Key Personnel should not remain assigned to the CalPX
account, then CalPX shall advise ▇▇▇▇▇ Systems of such opinion,
and ▇▇▇▇▇ Systems shall promptly investigate 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
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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 CalPX 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.
2.6 CalPX Representative. CalPX shall designate a representative ("CALPX
REPRESENTATIVE") who shall have overall responsibility for managing and
coordinating the performance of CalPXs 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
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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
CalPX 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:
(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
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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 frilly 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.
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
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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.
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."
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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
Services. ▇▇▇▇▇ Systems will commence the Additional Services upon
execution of the Task Order by CalPX and ▇▇▇▇▇ Systems.
3.4 Change Control Procedure.
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(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 operations
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 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.
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(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 withdraw 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 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
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CalPX and for CalPX's account or shall facilitate the purchase, lease or
license of such items by CalPX 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) CalPX 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 CalPXs 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 CalPXs information technology operations for CalPXs
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 CalPX
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
CalPX or its operating procedures that require changes to the way
in which the Services are 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.
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(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 CalPXs 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 CalPXs 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 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.
11
(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 benebmarkers 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 frill
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 CalPX are not
unreasonably delayed by CalPX.
4.2 Access to Software
(a) CalPX Proprietary Software. CalPX shall provide ▇▇▇▇▇ Systems
with access to, and the necessary rights to operate, modify,
and enhance, its proprietary software
12
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
("CALPX 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 CalPX
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 ("CALPX 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
CalPX 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 CalPX 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
Services at the RIIMF (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 CalPX 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 ▇▇▇▇▇ 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.
13
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.
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-
14
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
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 Reimbursable 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
15
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 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 "CALPX 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
16
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
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
17
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). Ca1PX 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 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.
18
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 ("CALPX DATA") shall remain
the property of CalPX or the third party that owns such data
and information. ▇▇▇▇▇ Systems shall use such CalPX 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 CalPX Data
and (2) erase or destroy all or any part of the CalPX 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 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
19
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
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.
20
(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.
(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 CalPX, 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.
21
(a) Any software that is proprietary to ▇▇▇▇▇ Systems that ▇▇▇▇▇
Systems uses or to which ▇▇▇▇▇ Systems provides CalPX 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.
(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 CalPX,
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
22
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.
(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 CalPX has an
ongoing equity interest ("CALPX 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
23
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 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 tenns 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,
24
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).
(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 CalPX's prior approval, to restrict access to the
systems in any shared environment in a
25
manner that prevents persons other than PSC Personnel from having
access to CalPX's Confidential Information.
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 renew.
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
26
panel may not award monetary damages in excess of the damages
allowed pursuant 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 3 65(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 it 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.
27
(b) The aggregate termination fee payable by CalPX 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 CaIPX 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 CaIPX'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 Ca1IPX 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.
28
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 CalPX ("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.
29
(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 payable to ▇▇▇▇▇ Systems for such Transition
Assistance for that month adjusted, as
30
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 Majeure. 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.
31
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
32
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 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.
33
ARTICLE 9
LIABILITY
9.1 Limitation of Liability. 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, CalPX 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 this Section 9.4, upon request by CalPX, ▇▇▇▇▇ Systems
shall assign PSC Personnel to
34
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.
35
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
36
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
11.1 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.
37
(d) ▇▇▇▇▇ Systems shall, within 15 days of the signing of this
Agreement, furnish to CalPX 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 CalPX, 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 liable for social security, unemployment, disability
insurance or other tax or
38
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 2 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 (b)
any additional costs or expenses arising out of or relating to any such
assignment by
39
▇▇▇▇▇ 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,
40
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 to 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
41
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 enforce&
12.18 Media Releases. All media releases, public announcements and public
disclosures by CaIPX or ▇▇▇▇▇ Systems relating to this Agreement,
including without mutation, promotional or marketing material (but not
including any announcement intended solely for internal distribution
within CaIPX or ▇▇▇▇▇ Systems, as the case may be, or any disclosure
required by legal, accounting or regulatory requirements beyond the
reasonable control of CalPX 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 CORPORATION ▇▇▇▇▇ SYSTEMS CORPORATION
By: By:
------------------------- ---------------------------
Name: Name:
----------------------- ----------------------------
Title: Title:
---------------------- ---------------------------
Date: Date:
----------------------- ----------------------------
42
SCHEDULE 1.1
DEFINITIONS
"AAA" has the meaning given this term in paragraph 1(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 tat (i) contains a modification
to the source code of CaIPX Proprietary Software, or (ii) contains newly
developed source code the functionality of which cannot reasonably be separated
from the functionality of the related CaIPX 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 CaIPX Proprietary Software and CaIPX 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.
Schedule 1.1 - Page 2
"Core Applications" has the meaning given this term in Part C, paragraph (b) of
Schedule 3.1.
"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 CaIPX by ▇▇▇▇▇
Systems in connection wit 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 CatPX's Confidential
Information.
"Desktop Procurement Services means the services tat 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,
programing 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 1(a) of Schedule 7.3.
Schedule 1.1 - Page 3
"EPA" has the meaning given this term in paragraph 1(c) of Schedule 7.3.
"Full-Time Equivalent" or "ETE" 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, prorated on a 160
hours per month basis, shall be used to detemine the number of ETEs 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 1(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 CaIPX 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.
Schedule 1.1 - Page 4
"Non-Transitioned Employees" has the meaning given this term in Section 2.7(c).
"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(0.
"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 5.10(a).
"Renewal Term" 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.
Schedule 1.1 - Page 5
"Restricted Territory" has the meaning given this term in Section 6.5(b)(iii).
"RIME" 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, tat 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, Ca1PX 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 7.11(a).
"Transition Assistance Period" has the meaning given this term in Section
7.11(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).
Schedule 1.1 - Page 6
"Work Product" means all Deliverables and Documentation, including but not
limited to reports, drawings, plans, specifications, computer disks, tapes,
printouts, studies, memoranda, 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, CaIPX Vendor Software or CaJPX
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 -- CalPX Employees
Part B - CalPX Contractors
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 CaIPX 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 CaIPX as length of service for ▇▇▇▇▇ Systems.
▇▇▇▇▇ Systems shall consider making an accommodation for Transitioned Employees
who have 401k loans under CalPXs 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 1
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 CaIPX's information technology
projects, (ii) to facilitate the integration of common efforts across
CaIPX'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 CaIPX's managers to understand project priorities
and budget, and to resolve issues.
c. Schedule projects after approval is given by CaIPX 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 CaIPX, 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 intiatives 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.
1. Work with CaIPX to integrate initiatives into tactical plans.
m. Implement reasonably appropriate quality controls as part of
processes and procedures.
Schedule3.1 - Page 1
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 Ca1PX 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-level guidance to ▇▇▇▇▇ Systems on CalPX's business
priorities as they affect the
Schedule 3.1 - Page 2
ITSA_Final 20000217
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
ITSA_Final 20000217
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 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
ITSA_Final 20000217
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 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
ITSA_Final 20000217
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
ITSA_Final 20000217
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 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
ITSA_Final 20000217
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 m 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 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
ITSA_Final 20000217
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 m 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
ITSA_Final 20000217
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 Ca1PX.
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
ITSA_Final 20000217
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.
o 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
SOFTWARE DESCRIPTION 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
Web (ST) 1.15
Zonal Price Checker (DA & HA) 1.0
Schedule 3.1 - Page 11
ITSA_Final 20000217
o 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
SOFTWARE DESCRIPTION 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
ITSA_Final 20000217
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.
o All enhancements to Application shall be considered part of Application
Development Services.
o 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.
o 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
ITSA_Final 20000217
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.
o 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
ITSA_Final 20000217
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 retest 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
ITSA_Final 20000217
Part E -- Business Consulting Services
The PSC Personnel assigned to provide Business Consulting Services to CalPX
shall, upon request by Ca1PX, provide advice to CalPX in the following
substantive areas:
o Trading and scheduling
o Business and regulatory affairs
o Settlements calculation
o Market compliance
o Information technologies
o Finance
o Marketing
o Product Development
Business Consulting Services shall include the following activities, among
others:
o 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;
o 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
o 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
ITSA_Final 20000217
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.
▇▇▇▇▇ System 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.
o Each Service shall be measured using then existing measurement Tools.
o Service 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 results from modifications to such Application made by PSC
Personnel), or services provided by Third Party Vendors (other than PSC
Personnel).
o CalPS 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 1
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.
o Service Levels shall be measure but not enforce 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.
o 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 SERVICE OBJECTIVE SERVICE LEVEL SERVICE LEVEL METRIC SERVICE LEVEL
SYSTEMS TO BE REQUIREMENT
MONITORED
------------------------------------------------------------------------------------------------------------------------------------
Production Servers running Core Applications ▇▇▇▇▇ System shall cause servers A server shall be deemed 95%
Services used by CalPX to operate the running Core Applications used "available" if the operating
day ahead and hour ahead market by Cal\PX to operate the day system installed on such
should be "available" 7 days per ahead and hour ahead markets server is responding to
week, 24 hours per day. to be "available" 7 days per console commands entered
week, 24 hours per day, at the server.
except during maintenance
windows and other scheduled
outages approved in advanced
by CalPX, for at least the
percent of time set forth
under the heading Service
Level Requirement.
------------------------------------------------------------------------------------------------------------------------------------
Back-Office Servers running Core Applications ▇▇▇▇▇ System shall cause servers A server shall be deemed 95%
Servers that are used by Cal\PX (i) to running Core Applications used by "available" if the operating
settle transactions from day ahead CalPX (i) to settle transactions system installed on such
and hour ahead markets or (ii) to from the day ahead and hour ahead server is responding to
manage its financial or other markets or (ii) to manage its console commands entered
internal operations (e.g., financial or other internal at the server.
PeopleSoft applications) should operations to be "available"
be "available" 7 days per week, 7 days per week, 24 hours per
24 hours per day. 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.
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Test/Market Servers forming part of the ▇▇▇▇▇ System shall cause servers A server shall be deemed 95%
Simulation Enterprise Technology Test forming part of the Enterprise "available" if the operating
Servers Facility should be "available" Technology Test Facility to be system installed on such
during Normal Business Hours "available" during Normal Business server is responding to
and otherwise during scheduled Hours, except during maintenance console commands entered
simulations during scheduled windows and other scheduled at the server.
test periods. 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.
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Schedule 3.3 - Page 2
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SERVICES OR SERVICE OBJECTIVE SERVICE LEVEL SERVICE LEVEL METRIC SERVICE LEVEL
SYSTEMS TO BE REQUIREMENT
MONITORED
------------------------------------------------------------------------------------------------------------------------------------
Gateway The DEC Alpha servers running the ▇▇▇▇▇ Systems shall cause the DEC A server shall be deemed 95%
Servers OM Gateway should be "available" Alpha servers running the OM "available" if the operating
days per week, 24 hours per day. Gateway to be "available" 7 days system installed on such
per week, 24 hours per day, server is responding to
except during maintenance windows console commands entered
and other scheduled outages at the server.
approved in advance by CalPX, for
at least the percent of time set
forth under the heading Service
Level Requirement.
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User accounts User accounts and user IDs for During Normal Business Hours, A request for an activation 95%
and ID CalPX employees should be ▇▇▇▇▇ Systems shall activate or of or a change to a user
activated or changed within four change each user account or user account or user ID shall be
hours after receiving a proper ID within four business hours deemed to be proper if the
request for such action. after receiving a proper request request is submitted though
for such action, for at least the ▇▇▇▇▇ Systems' help desk or
percentage of requests set forth electronic ticketing system
under the heading Service Level with the approvals required
Requirement. by the Management Procedures
Manual.
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Password User passwords that have expired During Normal Business Hours, A request for a password 94%
Resets or have been suspended should be ▇▇▇▇▇ Systems shall reset each reset shall be deemed to be
reset within 15 minutes after user password that has expired or proper if the request is
receiving a proper request for has been suspended within 15 submitted through ▇▇▇▇▇
such action. minutes after receiving a proper Systems' help desk or
request for such action, for at electronic ticketing system
least the percentage of requests with the approvals required
set forth under the heading by the Management Procedures
Service Level Requirement. Manual.
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Help Desk Calls to the help desk should be During Normal Business Hours, This service level shall be 90%
Call Res;onse answered within 30 seconds during ▇▇▇▇▇ Systems shall answer all measured based upon call
Time Normal Business Hours. calls to the help desk within reports from CalPX's ACD
30 seconds for at least the or equivalent system, and
percentage of calls set forth shall exclude delays in
under the heading Service Level answering during which
Requirement. recorded messages are being
played.
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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 shall establish backup
the Management Procedures Manual. as provided in the Management procedures and schedules
Procedure Manual in at least the within 60 days after the
percentage of cases as set forth Effective Date.
under the heading Service Level
Requirement.
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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
----------------------------------------------------------------------------------------------------------------------------------
SEVERITY DEFINITION SUPPORT SERVICE LEVEL STATUS REPORT
LEVEL UPDATE REQUIRED
----------------------------------------------------------------------------------------------------------------------------------
01 A problem shall be ▇▇▇▇▇ Systems shall provide uninterrupted ▇▇▇▇▇ Systems Every hour Yes
assigned this problem isolation and determination services. shall resolve or until the
severity level if (i) provide ticket first
the majority of users ▇▇▇▇▇ Systems shall implement workarounds workarounds reaches Temp
at the applicable site and patches immediately after testing such for 98% of all Fix, Resolved
are adversely items as provided in the Management problems or Closed
affected, (ii) the Procedures Manual. ▇▇▇▇▇ Systems shall assigned this status.
problem has high implement hardware and software upgrades Severity Level
visibility, and (iii) implementing more thorough resolutions within four
there is no during the first available maintenance hours.
workaround window after testing of such upgrades is
available. completed.
Example: A file CalPX shall provide on-site support to
server is not assist in problem isolation and
available. determination activities and to test
problem resolution.
----------------------------------------------------------------------------------------------------------------------------------
02 A problem shall be ▇▇▇▇▇ Systems shall provide problem ▇▇▇▇▇ Systems Every four Yes
assigned this isolation and determination support shall resolve or hours until
severity level if (i) on an as needed basis until a provide the ticket
the majority of users workaround is identified. workarounds first reaches
at the applicable size for 98% of all Temp Tix,
are adversely ▇▇▇▇▇ Systems shall implement a problems assigned Resolved or
affected, (ii) the workarounds immediately after it is this Severity Closed
problem has high tested as provided in the Management Level within 24 status.
visibility, and (iii) a Procedures Manual. ▇▇▇▇▇ Systems hours.
work around is shall implement hardware and
available, but the software upgrades implementing more
performance of the thorough resolutions during the
applicable System is first available maintenance window
degraded or the after testing of such upgrades is
functionality of the completed.
applicable System is
materially limited. CalPX shall provide support to assist
in problem isolation and determination
Example: A router activities and to test the workaround.
is down, however,
traffic is rerouted
with degraded
performance.
----------------------------------------------------------------------------------------------------------------------------------
03 A problem shall be ▇▇▇▇▇ Systems shall provide problem ▇▇▇▇▇ Systems Twice No
assigned this isolation and determination support shall resolve or weekly until
severity level if (i) a during Normal Business Hours. provide the ticket
small percentage of workarounds first reaches
users at the ▇▇▇▇▇ Systems shall implement workarounds for 98% of all Temp Fix,
applicable site are and hardware and software upgrades during problems Resolved or
adversely affected, the first available maintenance window assigned this Closed
and (ii) the problem after testing of is completed. Severity Level status.
has limited visibility. within five
CalPX shall test fixes. business days.
Example: A user is
unable to establish
an application
session from his/her
machine.
----------------------------------------------------------------------------------------------------------------------------------
Schedule 3.3 - Page 5
----------------------------------------------------------------------------------------------------------------------------------
SEVERITY DEFINITION SUPPORT SERVICE LEVEL STATUS REPORT
LEVEL UPDATE REQUIRED
----------------------------------------------------------------------------------------------------------------------------------
04 A problem shall be ▇▇▇▇▇ Systems shall provide problem isolation ▇▇▇▇▇ Systems Weekly until No
assigned this and determination support during Normal shall resolve or the ticket
severity level if the Business Hours. provide first reaches
affected System can workarounds Temp Fix,
be operated without ▇▇▇▇▇ Systems shall implement workarounds for 98% of all Resolved or
significant and hardware and software upgrades during problems Closed
limitations on the first available maintenance window assigned this status.
performance or after testing is completed. Severity Level
functionality using a within five
workaround. CalPX shall test all fixes. 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 ▇▇▇▇▇ Systems Twice No
assigned this and determination support during Normal shall resolve or monthly
Severity Level if Business Hours. provide until the
neither the user nor workarounds ticket first
operation of the ▇▇▇▇▇ Systems shall implement workarounds for 98% of all reaches
applicable System is and hardware and software upgrades during problems Temp Fix,
materially adversely the first available maintenance window assigned this Resolved or
affected. after testing is completed. Severity Level Closed
within 10 status.
Example: A PC CalPX shall test all fixes. business days.
connects duplicate
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
100BT/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 100 Base-T/9000 B.10.20.06
HP-PB 100 Base-T/9000 B.10.20.02
HP-PB 100 Base-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-S800-10.20 A.1.51
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
HP_UX 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 ER 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 Source Safe 6.0
MirrorDisk/UX B.10.20
Money h++ Win 2/21w
MPWeb1.1 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 +Gb 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 Glance Plus/US Pak for s800 10.20 B.10.20.140
Trial HP Measure ▇▇▇▇ Server Agent for s800 10.20 B.10.20.140
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 ▇▇▇▇ 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 Composser 1.5
Microsoft Outlook 97
Microsoft Internet Explorer 4.0
Microsoft ACCESS Professional Edition 98
Microsoft Internet Explorer 4.0
Netscape Communicator 4.0x
Netscape Communicator 4.1
Netscape Communicator 4.4
ORG Plus for windows 3.01
Remedy Actioin Request System 3.2
SeaGate Crystal Reports (Stadard) 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 Solution 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 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
Settlement 5.1.7.1
Trade Application 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 O 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 FALLOVER
SERVER HARDWARE SYSTEM CPUS RAM DISK IT IT CAPABILITIES
------ -------- --------- ---- ---- ------ ---- -------- ------------
PRODUCTION
ALHDEV171 HP LPr D6131A NTS4 SP4+ 1 64M 4G PX PX none
ADHEV172 HP LPR D6131A NTS4 SP4+ 1 64M 4G PX PX none
ADHPAP107 Digital Prioris MX6200 NTS4 SP4+ 1 PX PX non
ALHPAP108 Digital Prioris MX6200 NTS4 SP4+ 1 PX PX none
ALHPAP110 Digital Prioris MX6200 NTS4 PS4+ 1 PX PX none
▇▇▇▇▇▇▇▇▇ Digital Prioris MX6200 NTS4 SP4+ 1 PX PX none
ALHPAP113 HP Vectra D4841 NTS4 SP4+ 1 PX PX none
ALHPAP180 HP LXr 8000 NTS4 SP4+ 1 4G mir PX PX ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ SP4+ 1 4G mir PX PX ALHPAP180
ALHPAP193 HP LPr D6131A NTS4 SP4+ 1 64M 4G mir PX PX none
▇▇▇▇▇▇▇▇▇ HP LPr D6131A NTS4 SP4+ 1 64M 4G mir PX PX none
ALHPAP195 HP LPr D6131A NTS4 SP4+ 1 64M 4G mir PX PX none
ALHPAP199 HP LPr D6131A NTS4 SP4+ 1 64M 4G mir PX PX none
ALHPAP200 HP LXr 8000 NTS4 SP4+ 1 4G mir PX PX ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ SP4+ 1 4G mir PX PX ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ SP4+ 1 4G mir PX PX ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ SP4+ 1 4G mir PX PX ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ SP4+ 1 4G mir PX PX ▇▇▇▇▇▇▇▇▇
ALHPAP7532 HP LPr D6131A NTS4 SP4+ 1 64M 4G PX PX ALHPAP7533
ALHPAP7533 HP LPr D6131A NTS4 SP4+ 1 64M 4G PX PX ALHPAP7532
▇▇▇▇▇▇▇▇ ▇▇▇▇ SP4+ 1 PX PX none
▇▇▇▇▇▇▇▇ ▇▇▇▇ SP4+ 1 PX PX none
ALHPSEC2 HP LPr D6131A NTS4 SP4+ 1 64M 4G PX PX none
ALHPWEB10 HP LPr D6131A NTS4 SP4+ 1 64M 4G PX PX none
▇▇▇▇▇▇▇▇▇ IBM PC Server 704 NTS4 SP4+ 1 PX PX none
ALHPWEB13 IBM PC Server 704 NTS4 SP4+ 1 PX PX none
ALHPWEB14 IBM PC Server 704 NTS4 SP4+ PX PX none
ALHPWEB17 IBM PC Server 704 NTS4 SP4+ 1 PX PX none
ALHPWEB25 IBM PC Server 704 NTS4 SP4+ 1 PX PX none
BFWDWEB1 HP LPr D6131A NTS4 SP4+ 1 64M 4G PX PX ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ HP LPr D6131A NTS4 SP4+ 1 64M 4G PX PX BFWDWEB1
BFWDTWEB HP LPr D6131A NTS4 SP4+ 1 64M 4G PX PX none
CSIAPAPP2A IBM PC Server 704 NTS4 SP4+ 1 128M IBM IBM none
CSIAPAPP1A IBM PC Server 704 NTS4 SP4+ 1 128M IBM IBM none
CSIAPMAIL1A IBM PC Server 704 NTS4 SP4+ PX PX none
IMSINTRA NTS4 SP4+ 1 PX PX none
DR
HELP HW OS APP HOT
SERVER DOMAIN LOCATION FUNCTION DESK SUPPORT SUPPORT SUPPORT SITE
------ ------ -------- -------- ---- ------- ------- ------- -------
PRODUCTION
ALHDEV171 PXPROD Svr room Test/Development PX HP PX PX
ADHEV172 PXPROD Svr room Test/Development PX HP PX PX
ADHPAP107 PXPROD Svr room MDAS ftp server #1 PX Compaq PX Folsom
ALHPAP108 PXPROD Svr room MDAS DB server #1 PX Compaq PX Folsom
ALHPAP110 PXPROD Svr room MDAS ftp server #2, Psoft PX Compaq PX Folsom
Apps
▇▇▇▇▇▇▇▇▇ PXPROD Svr room MDAS DB server #2 PX Compaq PX Folsom
ALHPAP113 PXPROD Svr room Settlement Util PRocessor PX HP PX Folsom
ALHPAP180 PXPROD Svr room BDC PXPROD, PEP+ PX HP PX PX Folsom
ALHPAP181 PXPROD Svr room BDC PXPROD, Settlement PX HP PX PX Folsom
ALHPAP193 PXPROD Svr room OM Gateway PX HP PX PX Folsom
▇▇▇▇▇▇▇▇▇ PXPROD Svr room OM Gateway PX HP PS PX Folsom
ALHPAP195 PXPROD Svr room OM Gateway PX HP PX PX Folsom
ALHPAP199 PXPROD Svr room WLBS Web Server PX HP PX PX
ALHPAP200 PXPROD Svr room BDC PXPROD, Buckeye PX HP PX PX Folsom
ALHPAP201 PXPROD Svr room BDC PXPROD, Peoplesoft PX HP PX PX Folsom
ALHPAP203 PXPROD Svr room BDC PXPROD, SQL7 PX HP PX PX Folsom
ALHPAP204 PXPROD Svr room PDC PXPROD PX HP PX PX Folsom
▇▇▇▇▇▇▇▇▇ PXPROD Svr room PDC PXPROD, PXMDAS PX HP PX PX Folsom
ALHPAP211 PXPROD Svr room BDC PXPROD, Intranet PX HP PX PX Folsom
ALHPAP7532 PXPROD Svr room OM Gateway PX HP PX PX Folsom
ALHPAP7533 PXPROD Svr room WLBS Web Server PX HP PX PX
ALHPAP97 PXPROD Svr room Buckeye & Book PX PX
ALHPAP98 PXPROD Svr room PeopleSoft File Share PX PX
ALHPSEC2 PXOA1 Svr room PDC in DMZ PX PX PX
ALHPWEB10 PXPROD Svr room A-Frame DB Server PX HP PX Folsom
▇▇▇▇▇▇▇▇▇ PXPROD Svr room Ext PRMS Web Server PX IBM PX
ALHPWEB13 PXPROD Svr room DayAhead MCP Server PX IBM PX
ALHPWEB14 PXPROD Svr room HourAhead MCP Server PX IBM PX
ALHPWEB17 PXPROD Svr room Settlements Web Server PX IBM PX
ALHPWEB25 PXPROD Svr room Powerbase PX IBM PX
BFWDWEB1 PXPROD Svr room BF Prod Web Server PX HP PX PX
BFWDWEB2 PXPROD Svr room BF Prod Web Server PX HP PX PX
BFWDTWEB PXPROD Svr room BF Test Web Server PS HP PX PX
CSIAPAPP2A PXOA Svr room PDC PXOA1 IBM IBM IBM IBM Folsom
CSIAPAPP1A PXOA Svr room BDC PXOA1 IBM IBM IBM IBM Folsom
CSIAPMAIL1A PXPROD Svr room CALPX web site IBM IBM PX
IMSINTRA PXPROD Svr room Int PRMS Web Server PX IBM PX Folsom
WHO WHO
OPERATING OWNS SUPPORTS FALLOVER
SERVER HARDWARE SYSTEM CPUS RAM DISK IT IT CAPABILITIES
------ -------- --------- ---- ---- ------ ---- -------- ------------
ALHPAP1 Digital PWS 200i NTS4 SP4+ 1 64M 4.3G PX PX none
ALHPAP2 Digital PWS 200i NTS4 SP4+ 1 64M 4.3G PX PX none
ALHPAP3 Digital PWS 200i NTS4 SP4+ 1 64M 4.3G PX PX none
ALHPAP28 Digital PWS 200i NTS4 SP4+ 1 64M 4.3G PX PX none
ALHPAP33 Digital PWS 200i NTS4 SP4+ 1 64M 4.3G PX PX none
ALHPAP27 Digital PWS 200i NTS4 SP4+ 1 64M 4.3G PX PX none
ALHPAP52 Digital PWS 200i NTS4 SP4+ 1 64M 4.3G PX PX none
ALHPAP133 Digital PWS 200i NTS4 SP4+ 1 64M 4.3G PX PX none
ALHPAP134 Digital PWS 200i NTS4 SP4+ 1 64M 4.3G PX PX none
ALHPAP53 Digital PWS 200i NTS4 SP4+ 1 64M 4.3G PX PX none
ALHPAP88 Digital Priori MX6200 NTS4 SP4+ 1 none
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ SP4+ 1 PX PX none
▇▇▇▇▇▇▇▇ ▇▇▇▇ SP4+ 1 PX PX none
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ SP4+ 1 PX PX none
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ SP4+ 1 PX PX none
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ SP4+ 1 PX PX none
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ SP4+ 1 PX PX none
ALHPAP80 Digital Priori MX6200 NTS4 SP4+ 1 PX PX none
▇▇▇▇▇▇▇▇ ▇▇▇▇ SP4+ 1 PX PX none
ALHPAP171 HP LPr D6131A NTS4 SP4+ 1 64M 4G PX PX ALHPAP172
ALHPAP172 HP LPr D6131A NTS4 SP4+ 1 64M 4G PX PX ALHPAP171
ALHPAP109 HP Netserv 6/200 NTS4 SP4+ 1 PX PX none
HELP HW OS APP
SERVER DOMAIN LOCATION FUNCTION DESK SUPPORT SUPPORT SUPPORT
------ ------ -------- -------- ---- ------- ------- -------
ALHPAP1 PX? Svr room OMN Gateway PX Compaq PX OM
ALHPAP2 PX? Svr room OMN Gateway PX Compaq PX OM
ALHPAP3 PX? Svr room OMN Gateway PX Compaq PX OM
ALHPAP28 PX? Svr room OMN Gateway PX Compaq PX OM
ALHPAP33 PX? Svr room OMN Gateway PX Compaq PX OM
ALHPAP27 PX? Svr room OMN Gateway PX Compaq PX OM
ALHPAP52 PX? Svr room OMN Gateway PX Compaq PX OM
ALHPAP133 PX? Svr room OMN Gateway PX Compaq PX OM
ALHPAP134 PX? Svr room OMN Gateway PX Compaq PX OM
ALHPAP53 PX? Svr room OMN Gateway PX Compaq PX OM
ALHPAP88 PX? Svr room PeopleSoft Apps PX Compaq PX OM
ALHPAP150 PX? Svr room PX PX
ALHPAP80 PX? Svr room PX PX
▇▇▇▇▇▇▇▇▇ PX? Svr room PX PX
ALHPAP142 PX? Svr room PEP + Test PX PX
ALHPAP138 PX? Svr room PX PX
ALHPWEB12 PX? Svr room PX PX
ALHPAP80 PX? Svr room PX Compaq PX
ALHPAP74 PX? Svr room MDAS Test PX PX
ALHPAP171 PXDEV Svr room PDC PXDEV PX HP PX PX
ALHPAP172 PXDEV Svr room BDC PXDEV PX HP PX PX
ALHPAP109 PXPROD Svr room master/master db ser PX HP PX
ITSA-Final SCHEDULE 4.4 -- PAGE 2 200000217
CALPX UNIX SYSTEM CONFIGURATION
ALHAMBRA, CA. UNIX SERVER INVENTORY (TENTATIVE)
=========================================================================================
HOST NAME OS LEVEL HARDWARE RAM DISK APPLICATIONS
(GB) STORAGE
=========================================================================================
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
Pep1 HP-UX HP9000 1.1 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
Setest1 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 GB Data Warehouse,
10.20 Model K460 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 GB Historical Database, Test
10.20 Model K460 Psoft and Settlements, 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
=========================================================================================
HOST NAME OS LEVEL HARDWARE RAM DISK APPLICATIONS
(GB) STORAGE
=========================================================================================
FOLPAP87 HP-UX HP9000 unknown unknown Sybase, Replication
10.20 K460 DA/HA/SE
FOLPA110 HP-UX HP9000 unknown unknown Settlements
10.20 K460
FOLPA108 HP-UX HP9000 unknown unknown Not used.
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 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 1
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: 16FTE-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
Disaster 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:
o End user security awareness
o Physical security issues
o UserID security issues
o Password security issues
o Policies -- Recommendations for an audit log structure
o Enterprise Security Software -- Information of currently available 3rd
party security management software.
o Topology -- A mapping of systems at CalPX.
o 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 BUDGET 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 equivalent, software or services.
D. FEES FOR APPLICATIONS DEVELOPMENT SERVICES AND BUSINESS CONSULTING SERVICES
As consideration for the Application 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 1
As consideration for the Business Consulting Services, CAlPX shall pay ▇▇▇▇▇
Systems a monthly services for ("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 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: $159,000 / 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
the 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.
o CalPX shall introduce into production the Titan Application (CalPX
settlements calculation application) on or before May 1,2000.
o CalPX shall not require support for parallel operation of the Titan
Application and its existing suite of settlements applications for more
than 2 months.
o CalPX shall retire 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 MONTHS
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 1
SCHEDULE 5.4
CALPX 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 1
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 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 of 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 milage 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 of other driving
citations will not be reimbursed.
LODGING
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 form the hotel or motel must be attached.
Meals,tips, telephone, parking or other charges on the hotel of 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 4 seq. 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
fir st 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 often (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 (l0th) 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 11 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.
Schedule 7.3 - Page 7
14. SUMMARY DISPOSITION
The arbitrator(s) shall dispose in a sununary 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
sununary 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 EPA, 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 EPA, 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.
Schedule 7.3 - Page 10
20. COMPLIANCE
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 48-5 1 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 EPA.
Schedule 7.3 - Page 12
EXHIBIT A
FEE SCHEDULE
1. Mediation Services.
$150.00 per party filing fee.
o plus compensation per hour for the mediator split by the parties
(hourly rate of compensation will vary depending upon the mediator
selected.
o 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 53-5 7 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:
o Each challenger and each challenged intervenor shall pay a $150 fee
(even if parties make joint filings)
o 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)
o 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
o 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.
o 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.
NO. OF DISRUPTIONS IN A 6
CRITICAL SERVICE CURE PERIOD 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 1