----------
Exhibit
ITEM 16 - 4c
MATERIAL CONTRACTS
PACIFIC GAS & ELECTRIC SERVICE AGREEMENT
----------
Pacific Gas and Electric Company
ENERGY SERVICE PROVIDER (ESP) SERVICE
AGREEMENT
This Energy Service Provider (ESP) Service Agreement (this "Agreement") is made
and entered into as of this 10th day Of MARCH, 1998 by and between POWERSOURCE
CORP., ("ESP"), a corporation organized and existing under the laws of the state
of - NEVADA , and "Pacific Gas and Electric Company" ("PG&E"), a corporation
organized and existing under the laws of the state of California. From time to
time, ESP and PG&E shall be individually referred to herein as a "Party" and
collectively as the "Parties."
SECTION 1: GENERAL DESCRIPTION OF AGREEMENT
1.1 This Agreement is a legally binding contract. The Parties named in this
Agreement are bound by the terms set forth herein and otherwise incorporated
herein by reference. This Agreement shall govern the business relationship
between the Parties hereto by which ESP shall offer electrical energy services,
including, but not limited to, account maintenance and billing services,
electrical meter installation, meter reading services and/or any other services
that may be approved by the California Public Utilities Commission ("CPUC') in
Direct Access transactions with customers in PG&E's service territory ("Direct
Access Services"). Each Party, by agreeing to undertake specific activities and
responsibilities for or on behalf of customers, acknowledges that each Party
shall relieve and discharge the other Party of the responsibility for said
activities and responsibilities with respect to those customers. Except where
explicitly defined herein (including Attachment A hereto) the definitions
controlling this Agreement are contained in PG&E's applicable rules or in the
relevant direct access tariff.
1.2 The form of this Agreement has been developed as part of the CPUC regulatory
process, was intended to conform to CPUC directions, was filed and approved by
the CPUC for use between PG&E and ESPs and may not be waived, altered, amended
or modified, except as provided herein or in the relevant direct access tariff,
or as may otherwise be authorized by the CPUC.
SECTION 2: REPRESENTATIONS
2.1 Each Party represents that it is and shall remain in compliance with all
applicable laws and tariffs, including applicable CPUC requirements.
2.2 Each person executing this Agreement for the respective Parties expressly
represents and warrants that he or she has authority to bind the entity on whose
behalf this Agreement is executed.
2.3 Each Party represents that (a) it has the full power and authority to
execute and deliver this Agreement and to perform its terms and conditions; (b)
the execution, delivery and performance of this Agreement have been duly
authorized by all necessary corporate or other action by such Party; and (c)
this agreement constitutes such Party's legal, valid and binding obligation,
enforceable against such Party in accordance with its terms.
2.4 Each Party shall (a) exercise all reasonable care, diligence and good faith
in the performance of its duties pursuant to this Agreement; and (b) carry out
its duties in accordance with applicable recognized professional standards in
accordance with the requirements of this Agreement.
Section 3: Term of Service
The term of this Agreement shall commence on the date of execution by both
Parties hereto (the "Effective Date") and shall terminate on the earlier of (a)
the date ESP informs PG&E that it is no longer operating as an ESP in PG&E's
service territory; (b) the earlier termination pursuant to Section 4 hereof; or
(c) the effective date of a new ESP Service Agreement between the Parties
hereto. Notwithstanding the Effective Date of this Agreement, the ESP
acknowledges that it may only offer Direct Access Services to customers
effective January 1, 1998, or such other date as may be directed by the CPUC for
commencement of such services by ESPs, and only after it has complied with all
provisions of this Agreement and PG&E's applicable tariffs.
Section 4: Events of Default and Remedy for Default
4.1 An Event of Default under this Agreement shall include either Party's
material breach of any provision of this Agreement, including those incorporated
by reference herein, and failure to cure such breach within thirty (30) calendar
days of receipt of written notice thereof from the non-defaulting Party; or such
other period as may be provided by this Agreement or PG&E's direct access
tariff.
4.2 In the event of such an Event of Default, the non-defaulting Party shall be
entitled (a) to exercise any and all remedies available under PG&E's direct
access tariff ; (b) to the extent not inconsistent with PG&E's direct access
tariff, to exercise any and all remedies provided for by law or in equity; and
(c) in the event of a material Event of Default, to terminate this Agreement
upon written notice to the other Party, which shall be effective upon the
receipt thereof.
4.3 Breach by any Party hereto of any provision of PG&E's direct access tariff
shall be governed by applicable provisions contained therein and each Party will
retain all rights granted thereunder.
SECTION 5: BILLING, METERING AND PAYMENT
5.1 Billing options and metering services which are available to ESP shall be as
described in PG&E's direct access tariff, as stated in PG&E's Electric Rule 22.
Billing and metering options applicable to a particular customer shall be
designated in the Direct Access Service Request submitted by the ESP for such
customer.
5.2 PG&E will ▇▇▇▇ and the ESP agrees to pay PG&E for all services and products
provided by PG&E in accordance with the terms and conditions set forth in PG&E's
direct access tariff, as stated in PG&E's Electric Rule 22 and PG&E's rate
schedules. Any services provided by the ESP to PG&E shall be by separate
agreement between the Parties and are not a subject of this Agreement.
SECTION 6: LIMITATION OF LIABILITY
Each Party's liability to the other Party for any loss, cost, claim, injury,
liability, or expense, including reasonable attorneys' fees, relating to or
arising from any act or omission in its performance of this Agreement, shall be
limited to the amount of direct damage actually incurred, except as provided for
in this Section. In no event shall either Party be liable to the other Party for
any indirect, special, consequential, or punitive damages of any kind
whatsoever, whether in contract, tort or strict liability, except in the event
of an action covered by the Indemnification provisions of Section 7 of this
Agreement, in which event this Section 6 shall not be applicable.
SECTION 7: INDEMNIFICATION
7.1 To the fullest extent permitted by law, and subject to the limitations
set forth in Section 6 of this Agreement, each Party (the "Indemnifying Party')
shall indemnify and hold harmless the other Party, and its current and future
direct and indirect parent companies, affiliates and their shareholders,
officers, directors, employees, agents, servants and assigns (collectively, the
Indemnified Party") and at the Indemnified Party's option, the Indemnifying
Party shall defend the Indemnified Party from and against any and all claims
and/or liabilities for losses, expenses, damage to property, injury to or death
of any person, including, but not limited to, the Indemnified Party's employees
and its affiliates' employees, subcontractors and subcontractors' employees, or
any other liability incurred by the Indemnified Party, including reasonable
expenses, legal and otherwise, which shall include reasonable attorneys' fees,
caused wholly or in part by any negligent, grossly negligent or willful act or
omission by the Indemnifying Party, its officers, directors, employees, agents
or assigns arising out of this Agreement, except to the extent caused wholly or
in part by any negligent, grossly negligent or willful act or omission of the
Indemnified Party.
7.2 If any claim covered by Section 7.1 is brought against the Indemnified
Party, then the Indemnifying Party shall be entitled to participate in, and
unless in the opinion of counsel for the Indemnified Party a conflict of
interest between the Parties may exist with respect to such claim, assume the
defense of such claim, with counsel reasonably acceptable to the Indemnified
Party. If the Indemnifying Party does not assume the defense of the Indemnified
Party, or if a conflict precludes the Indemnifying Party from assuming the
defense, then the Indemnifying Party shall reimburse the Indemnified Party on a
monthly basis for the Indemnified Party's defense through separate counsel of
the Indemnified Party's choice. Even if the Indemnifying Party assumes the
defense of the Indemnified Party with acceptable counsel, the Indemnified Party,
at its sole option, may participate in the defense, at its own expense, with
counsel of its own choice without relieving the Indemnifying Party of any of its
obligations hereunder. In no event shall either Party be liable to the other
Party for any indirect, special, consequential, or punitive damages of any kind
whatsoever, whether in contract, tort or strict liability.
7.3 The Indemnifying Party's obligation to indemnify under this Section 7 shall
survive termination of this Agreement, and shall not be limited in any way by
any limitation on the amount or type of damages, compensation or benefits
payable by or for the Indemnifying Party under any statutory scheme, including,
without limitation, under any Workers Compensation Acts, Disability Benefit Acts
or other Employee Benefit Acts.
SECTION 8: ASSIGNMENT AND DELEGATION
8.1 Neither Party to this Agreement shall assign any of its rights or
obligations under this Agreement, except with the prior written consent of the
other Party, which consent shall not be unreasonably withheld or delayed. No
assignment of this Agreement shall relieve the assigning Party of any of its
obligations under this Agreement until such obligations have been assumed by the
assignee. When duly assigned in accordance with the foregoing, this Agreement
shall be binding upon and shall inure to the benefit of the assignee and the
assignor shall be relieved of its rights and obligations. Any assignment in
violation of this Section 8 shall be void.
8.2 Notwithstanding the provisions of this Section 8, either Party may
subcontract its duties under this Agreement to a subcontractor, provided that
the subcontracting Party shall remain fully responsible as a principal and not
as a guarantor for performance of any subcontracted duties, shall serve as the
point of contact between its subcontractor and the other Party, and shall
provide the other Party with thirty (30) calendar days' prior written notice of
any such subcontracting, which notice shall include such information about the
subcontractor as the other Party shall reasonably require, and provided further
that each Party may subcontract its obligation to provide Metering or Meter
Reading Services under this Agreement only to subcontractors who have complied
with all certification or registration requirements described in applicable law,
CPUC rules and PG&E's direct access tariff . If either Party subcontracts any of
its duties hereunder, it shall cause its subcontractors to perform in a manner
which is in conformity with that Party's obligations under this Agreement.
SECTION 9: INDEPENDENT CONTRACTORS
Each Party shall perform its obligations under this Agreement (including any
obligations performed by a Party's designees as permitted under Section 8 of
this Agreement) as an independent contractor.
SECTION 10: ENTIRE AGREEMENT
This Agreement consists of, in its entirety, this Energy Service Provider
Service Agreement and all attachments hereto, all Direct Access Service Requests
submitted pursuant to this Agreement and PG&E's direct access tariff. This
Agreement supersedes all other agreements or understandings, written or oral,
between the Parties related to the subject matter hereof. This Agreement may be
modified from time to time only by an instrument in writing, signed by both
Parties.
SECTION II: NONDISCLOSURE
11.1 Neither Party may disclose any Confidential Information obtained pursuant
to this Agreement to any third party, including affiliates of such Party,
without the express prior written consent of the other Party. As used herein,
the term "Confidential Information" shall include, but not be limited to, all
business, financial, and commercial information pertaining to the Parties,
customers of either or both Parties, suppliers for either Party, personnel of
either Party, any trade secrets, and other information of a similar nature,
whether written or in intangible form that is marked proprietary or confidential
with the appropriate owner's name. Confidential Information shall not include
information known to either Party prior to obtaining the same from the other
Party, information in the public domain, or information obtained by a Party from
a third party who did not, directly or indirectly, receive the same from the
other Party to this Agreement or from a party who was under an obligation of
confidentiality to the other Party to this Agreement or information developed by
either Party independent of any Confidential Information. The receiving Party
shall use the higher of the standard of care that the receiving Party uses to
preserve its own confidential information or a reasonable standard of care to
prevent unauthorized use or disclosure of such Confidential Information. Each
receiving Party shall, upon termination of this Agreement or at any time upon
the request of the disclosing Party, promptly return or destroy all Confidential
Information of the disclosing Party then in its possession.
11.2 Notwithstanding the preceding, Confidential Information may be disclosed to
any governmental, judicial or regulatory authority requiring such Confidential
Information pursuant to any applicable law, regulation, ruling, or order,
provided that: (a) such Confidential Information is submitted under any
applicable provision, if any, for confidential treatment by such governmental,
judicial or regulatory authority; and (b) prior to such disclosure, the other
Party is given prompt notice of the disclosure requirement so that it may take
whatever action it deems appropriate, including intervention in any proceeding
and the seeking of any injunction to prohibit such disclosure.
SECTION 12: ENFORCEABILITY
If any provision of this Agreement or the application thereof, is to any extent
held invalid or unenforceable, the remainder of this Agreement and the
application thereof, other than those provisions which have been held invalid or
unenforceable, shall not be affected and shall continue in full force and effect
and shall be enforceable to the fullest extent permitted by law or in equity.
SECTION 13: NOTICES
13.1 Except as otherwise provided in this Agreement, any notices under this
Agreement shall be in writing and shall be effective upon delivery if delivered
by (a) hand; (b) U.S. Mail, first class postage pre-paid, or (c) facsimile, with
confirmation of receipt to the Parties as follows:
If the notice is to ESP:
Contact Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Business Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., #▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
IF THE NOTICE IS TO PG&E:
Contact Name: Director of ESP Relations
Business Address:
Account Services Department
Mail Code H 28 B
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
13.2 Each Party shall be entitled to specify as its proper address any other
address in the United States upon written notice to the other Party.
13.3 Each Party shall designate on Attachment A the person(s) to be contacted
with respect to specific operational matters relating to Direct Access service.
Each Party shall be entitled to specify any change to such person(s) upon
written notice to the other Party.
SECTION 14: TIME OF ESSENCE
The Parties expressly agree that time is of the essence for all portions of this
Agreement.
SECTION 15: DISPUTE RESOLUTION
15.1 The form of this Agreement has been filed with and approved by the CPUC as
part of PG&E's applicable tariffs. Except as provided in Section 15.2 and 15.3,
any dispute arising between the Parties relating to interpretation of the
provisions of this Agreement or to the performance of PG&E's obligations
hereunder (including the performance of Billing Services, Metering Services and
MDMA Services by PG&E) shall be reduced to writing and referred to the Parties'
representatives identified on Attachment A for resolution. Should such a dispute
arise, the parties shall be required to meet and confer in an effort to resolve
their dispute. Pending resolution, the Parties shall proceed diligently with the
performance of their respective obligations under this Agreement, except if this
Agreement has been terminated under Section 4.2. If the Parties fail to reach an
agreement within a reasonable period of time, the matter shall, upon demand of
either Party, be submitted to resolution before the CPUC in accordance with the
CPUC's rules, regulations and procedures applicable to resolution of such
disputes.
15.2 Any dispute arising between the Parties relating to interpretation of the
provisions of this Agreement or to the performance of the ESP's obligations
hereunder (including the performance of Billing Services, Metering Services and
MDMA Services by the ESP) shall be reduced to writing and referred to the
Parties' representatives identified on Attachment A for resolution. Should such
a dispute arise, the parties shall be required to meet and confer in an effort
to resolve their dispute. Pending resolution, the Parties shall proceed
diligently with the performance of their respective obligations under this
Agreement, except if this Agreement has been terminated under Section 4.2. If
the Parties fail to reach an agreement within a reasonable period of time, the
parties may mutually agree to pursue mediation or arbitration to resolve such
issues.
15.3 Notwithstanding the provisions of Paragraph 15.1 and 15.2 above: (a) all
disputes between the Parties relating to the payment by the ESP of any PG&E fees
or charges shall be subject to the provisions of PG&E's applicable tariffs
governing disputes over customer bills; (b) all disputes between the Parties
regarding Competition Transition Charges payable by direct access customers or
the ESP on behalf of such customers shall be subject to the provisions of PG&E's
applicable tariffs; and (c) PG&E may pursue available remedies for unauthorized
electrical use by the ESP in a court of competent jurisdiction.
15.4 If the dispute involves a request for damages, parties are notified that
the Commission has no authority to award damages. To resolve such issues, the
parties may mutually agree to pursue mediation or arbitration to resolve such
issues, or if no agreement is reached, to pursue other legal remedies that are
available to the parties.
SECTION 16: APPLICABLE LAW AND VENUE
This Agreement shall be interpreted, governed by and construed in accordance
with the laws of the State of California, and shall exclude any choice of law
rules that direct the application of the laws of another jurisdiction,
irrespective of the place of execution or of the order in which the signatures
of the parties are affixed or of the place or places of performance. Except for
matters and disputes with respect to which the CPUC is the sole proper venue for
dispute resolution pursuant to applicable law or this Agreement, the federal and
state courts located in San Francisco County, California shall constitute the
sole proper venue for resolution of any matter or dispute hereunder, and the
Parties submit to the exclusive jurisdiction of such courts with respect to such
matters and disputes.
SECTION 17: FORCE MAJEURE
Neither Party shall be liable for any delay or failure in the performance of any
part of this Agreement (other than obligations to pay money) due to any event of
force majeure or other cause beyond its reasonable control, including but not
limited to, unusually severe weather, flood, fire, lightning, epidemic,
quarantine restrictions war, sabotage, act of a public enemy, earthquake,
insurrection, dot, civil disturbance, strike, work stoppage caused by
jurisdictional and similar disputes, restraint by court order or public
authority, or action or non-action by or inability to obtain authorization or
approval from any governmental authority, or any combination of these causes,
which by the exercise of due diligence and foresight such Party could not
reasonably have been expected to avoid and which by the exercise of due
diligence is unable to overcome. It is agreed that upon the Party so affected
giving written notice and reasonably full particulars of such force majeure to
the other Party within a reasonable time after the cause relied on, then the
obligations of the Party, so far as they are affected by the event of force
majeure, shall be suspended during the continuation of such inability and
circumstance and shall, so far as possible, be remedied with all reasonable
dispatch. In the event of force majeure, as described herein, both Parties shall
take all reasonable steps to comply with this Agreement and PG&E's applicable
tariffs despite occurrence of a force majeure event.
SECTION 18: UNAUTHORIZED USE OF ENERGY (ENERGY THEFT)
18.1 The ESP represents and warrants that for each of its Customers, and at all
times during which it provides Direct Access services as an Energy Service
Provider, the ESP shall completely, accurately, and in a timely manner account
for each of its Customer's loads with a duly authorized Scheduling Coordinator.
Load data not accounted for in this manner may provide grounds for termination
of this Agreement. For verification purposes only, PG&E shall have complete
access to the identity of the Scheduling Coordinator and the load data provided
to it by the ESP. Such information is to remain confidential, and shall not be
disclosed to any unauthorized person.
18.2 PG&E shall notify the ESP immediately and the ESP shall notify PG&E
immediately of any suspected unauthorized energy use. The Parties agree to
preserve any evidence of unauthorized energy use. Once unauthorized energy use
is suspected, PG&E, in its sole discretion, may take any or all of the actions
permitted under PG&E's applicable tariffs.
SECTION 19: NOT A JOINT VENTURE
Unless specifically stated in this Agreement to be otherwise, the duties,
obligations, and liabilities of the Parties are intended to be several and not
joint or collective. Nothing contained in this Agreement shall ever be construed
to create an association, trust, partnership or joint venture or to impose a
trust or partnership duty, obligation, or liability on or with regard to either
Party. Each Party shall be liable individually and severally for its own
obligations under this Agreement.
SECTION 20: CONFLICTS BETWEEN THIS AGREEMENT AND PG&E'S DIRECT ACCESS TARIFF
Should a conflict exist or develop between the provisions of this Agreement and
PG&E's direct access tariff, as approved by the CPUC, the provisions of PG&E's
direct access tariff shall prevail.
SECTION 21: AMENDMENTS OR MODIFICATIONS
21.1 Except as provided in Section 21.2, no amendment or modification shall be
made to this Agreement, in whole or in part, except by an instrument in writing
executed by authorized representatives of the Parties, and no amendment or
modification shall be made by course of performance, course of dealing or usage
of trade.
21.2 This Agreement may be subject to such changes or modifications as the CPUC
may from time to time direct or necessitate in the exercise of its jurisdiction,
and the Parties may amend the Agreement to conform to changes directed or
necessitated by the CPUC. In the event the Parties are unable to agree on the
required changes or modifications to this Agreement, their dispute shall be
resolved in accordance with the provisions of Section 15 hereof or, in the
alternative, ESP may elect to terminate this Agreement upon written notice to
PG&E, which shall be effective upon the receipt thereof. PG&E retains the right
to unilaterally file with the CPUC, pursuant to the CPUC's rules and
regulations, an application for a change in PG&E's rates, charges,
classification, service or rules, or any agreement relating thereto.
SECTION 22: BILLING OPTIONS OFFERED TO END-USE CUSTOMERS BY ESP
Check which billing options (as described in PG&E's direct access tariff ) ESP
intends to provide its Customers under this Agreement.
X CONSOLIDATED BILLING BY PG&E.
___ CONSOLIDATED BILLING BY THE ESP.
___ SEPARATE PG&E AND ESP BILLS.
ESP may change these elections from time to time in compliance with the relevant
direct access tariff upon prior written notice to PG&E. The Direct Access
Service Request (DASR) for each Direct Access customer will specify which
billing option will apply to that customer. If ESP specifies in any DASR any
billing option that has not been checked above, the DASR will be rejected.
SECTION 23: METER OPTIONS OFFERED TO END-USE CUSTOMER BY ESP
Check which meter options (as described in PG&E's direct access tariff) ESP will
offer for some or all of its Customers served under this Agreement.
X ESP will provide Hourly Meters. X ESP will offer Hourly Meter Installation
Services. X ESP will offer Hourly Meter Reading Services.
ESP may change these elections from time to time in compliance with PG&E's
direct access tariff upon prior written notice to PG&E. The Direct Access
Service Request (DASR) for each Direct Access customer will specify which
metering option will apply to that Customer. If ESP specifies in any Direct
Access Service Request any metering option that has not been checked above, the
DASR will be rejected.
SECTION 24: AUDITS
24.1 PG&E and the ESP shall each retain such specific records as may be required
to support the accuracy of meter data provided in their respective consolidated
▇▇▇▇▇▇▇▇. When either Party reasonably believes that errors related to metering
or billing activity may have occurred, a Party may request the production of
such documents as may be required to verify the accuracy of such metering and
consolidated billing. Such documents shall be provided within ten (1 0) business
days of such request. In the event the requesting Party, upon review of such
documents, continues to believe that the other Party's duty to accurately meter
and provide consolidated billing for usage has been breached, the requesting
Party may direct that an audit be conducted. PG&E and the ESP shall designate
their own employee representative or their contracted representative to audit
the other party's records.
24.2 Any such audit shall be undertaken by PG&E, the ESP, or their contracted
representative at reasonable times without interference with the audited Party's
business operations, and in compliance with the audited Party's security
procedures. PG&E and the ESP agree to cooperate fully with any such audit.
24.3 Specific records to support the accuracy of meter data provided in the
consolidated ▇▇▇▇▇▇▇▇ may require examination of billing and metering support
documentation maintained by subcontractors. PG&E and the ESP shall include a
similar clause in their agreements with their subcontractors reserving the right
to designate their own employee representative, or their contracted
representative to audit records related to consolidated billing to Direct Access
Customers.
24.4 The auditing Party will notify the audited Party in writing of any
exception taken as a result of an audit. The audited Party shall refund the
amount of any undisputed exception to the auditing Party within ten (10) days.
If the audited Party fails to make such payment, the audited Party agrees to pay
interest, accruing monthly, at a rate equal to the prime rate plus two percent
(2%) of Bank of America NT&SA, San Francisco, or any successor institution, in
effect from time to time, but not to exceed the maximum contract rate permitted
by the applicable usury laws of the State of California. Interest will be
computed from the date of written notification of exceptions to the date the
audited Party reimburses the auditing Party for any exception. The cost of such
audit shall be paid by the auditing Party; provided, however, that in the event
an audit verifies overcharges of five percent (5%) or more, then the audited
Party shall reimburse the auditing Party for the cost of the audit.
24.5 This right to audit shall extend for a period of three (3) years following
the date of final payment under this Agreement. Each party and each
subcontractor shall retain all necessary records and documentation for the
entire length of this audit period.
SECTION 25: MISCELLANEOUS
25.1 Unless otherwise stated in this Agreement: (a) any reference in this
Agreement to a section, subsection, attachment or similar term refers to the
provisions of this Agreement; (b) a reference to a section includes that section
and all its subsections; and (c) the words "include," "includes," and
"including" when used in this Agreement shall be deemed in each case to be
followed by the words "without limitation." The Parties agree that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting Party shall not be employed in the interpretation of this
Agreement
25.2 The provisions of this Agreement are for the benefit of the Parties and not
for any other person or third party beneficiary. The provisions of this
Agreement shall not impart rights enforceable by any person, firm or
organization other than a Party or a successor or assignee of a Party to this
Agreement.
25.3 The descriptive headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall in no way define,
modify or restrict any of the terms and provisions thereof.
25.4 Any waiver at any time by either Party of its rights with respect to a
default under this Agreement, or with respect to any other matter arising in
connection with this Agreement, shall not be deemed a waiver with respect to any
other or subsequent default or matter and no waiver shall be considered
effective unless in writing.
25.5 Each Party shall be responsible for paying its own attorneys' fees and
other costs associated with this Agreement, except as provided in Sections 6 and
7 hereof. If a dispute exists hereunder, the prevailing Party, as determined by
the CPUC, or as may otherwise be determined by the dispute resolution procedure
contained in Section 15 hereof, if used, or by a court of law, shall be entitled
to reasonable attorneys' fees and costs.
25.6 To the extent that the CPUC has a right under then-current law to audit
either Party's compliance with this Agreement or other legal or regulatory
requirements pertaining to Direct Access transactions, that Party shall
cooperate with such audits. Nothing in this Section shall be construed as an
admission by either Party with respect to the right of the CPUC to conduct such
audits or the scope thereof.
25.7 Except as otherwise provided in this Agreement, all rights of termination,
cancellation or other remedies in this Agreement are cumulative. Use of any
remedy shall not preclude any other remedy in this Agreement.
The Parties have executed this Agreement on the dates indicated below, to be
effective upon the later date.
ON BEHALF OF ESP ON BEHALF OF PG&E
By: /S/▇▇▇▇▇ ▇▇▇▇▇▇ By:/S/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------- ----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director Title: MGR, ACCT SERVICES
Date: 3/10/98 Date: 3/20/98
ATTACHMENT A
A. Definitions:
Billing Services - The consolidated billing services described in PG&E's direct
access tariff which are provided by PG&E and/or ESP.
Consolidated ESP ▇▇▇▇ - The consolidated ▇▇▇▇ prepared and presented by ESP to
an end-use customer which includes the customer's ESP Charges and PG&E Charges.
Consolidated PG&E ▇▇▇▇ - The consolidated ▇▇▇▇ prepared and presented by PG&E to
an end use customer which includes the Customer's ESP Charges and PG&E Charges.
Direct Access Customer - An end-use customer located within PG&E's service
territory who purchases Direct Access Services through the ESP.
ESP Charges - Charges for Direct Access Services provided by the ESP.
Metering Services - The meter installation, maintenance and related services
described in PG&E's direct access tariff which are provided by PG&E and/or ESP.
Meter Reading Services - The meter reading and related services described in
PG&E's direct access tariff which are provided by PG&E and/or ESP.
PG&E Charges - Charges (a) for services provided by PG&E; or (b) which are
energy-related and which are approved by the CPUC or the Federal Energy
Regulatory Commission (including any Competition Transition Charges or Fixed
Transition Amount Charges owing to PG&E or its affiliates, as those terms are
defined under the California Public Utilities Code). Fixed Transition Amount
Charges are also referred to as Trust Transfer Amount (TTA) Charges.
B. Contact Persons (Section 13.3):
1. Billing Services
PG&E Contact:
ESP Billing 415/▇▇▇-▇▇▇▇
ESP
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
2. Metering and Meter Reading Services
PG&E Contact:
ESP Metering Event Group 415/▇▇▇-▇▇▇▇
ESP
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇