MASTER SERVICES AGREEMENT
▇▇▇▇▇ Systems Corporation ("▇▇▇▇▇ Systems") and California Power Exchange
Corporation, a California nonprofit public benefit corporation ("Client") and
Debtor-in-Possession in case number LA-01-16577-ES, pending in the United States
Bankruptcy Court for the Central District of California, Los Angeles Division
enter into this Master Services Agreement ("Agreement") as of March 10, 2001
(the "Effective Date"). ▇▇▇▇▇ Systems shall perform the services, provide the
resources, and acquire and provide to Client the third party software, equipment
and services, all as described in task orders to be executed by the parties from
time to time ("Task Orders") on the terms and conditions set forth in such Task
Order and this Agreement. Each Task Order shall be generally in the form of the
Exhibit attached hereto. Upon execution of a Task Order, it shall be subject to
and part of this Agreement.
1. Project Managers. Each party shall designate one of its employees to be its
Project Manager under each Task Order, who shall act for that party on all
matters under the Task Order. Each party shall notify the other in writing of
any replacement of a Project Manager. The Project Managers for each Task Order
shall meet as often as either one requests to review the status of the Task
Order.
2. Charges: Time and Method of Payment.
(a) Client will pay ▇▇▇▇▇ Systems in advance for all services, resources
and third party software, equipment and services provided under each Task Order
on a time and materials basis at ▇▇▇▇▇ Systems' then-current commercial rates.
(b) ▇▇▇▇▇ Systems shall invoice Client twice a month and at least five
business days (to the extent practicable) before the beginning of each "Service
Period" (("Service Period" is defined as either the first half or second half of
a calendar month) for an amount equal to (i) all service fees and other charges
associated with the services, resources and third party software, equipment and
services to be provided in connection with each Task Order during that Service
Period, plus (ii) any adjustments to the service fees and other charges
associated with the services, resources and third party software, equipment and
services to provided in connection with each Task Order since the previous
invoice, including but not limited to out-of-pocket expenses.
(c) Client shall pay to ▇▇▇▇▇ Systems the amount set forth in each invoice
on or before the first day of the Service Period in which the services,
resources and third party software, equipment and services will be provided.
Late payments shall accrue interest from the due date at the lesser of (i) one
and a half percent per month or (ii) the maximum rate allowed by law. Client
shall deliver a check to ▇▇▇▇▇ Systems' Project Manager at Client's offices in
Pasadena on the due date and ▇▇▇▇▇ Systems shall not charge Client for an
overnight courier.
3. Out-of-Pocket Expenses. Client shall pay or reimburse ▇▇▇▇▇ Systems for its
reasonable out-of-pocket travel and travel related expenses incurred in
connection with each Task Order,
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provided that travel outside of the greater Los Angeles area has been approved
in advance by Client. Unless otherwise agreed, any expenses shall be reimbursed
according to CalPX Expense and Reimbursement Policy in effect on the Effective
Date.
4. Taxes. There shall be added to any charges payable by Client under this
Agreement, and Client shall pay or reimburse to ▇▇▇▇▇ Systems, amounts equal to
any taxes, however designated or levied based upon such charges, the services,
resources and third party software, equipment and services provided in
connection with each Task Order 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, Client 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. Cost of Living Adiustment. The rates and charges stated in each Task Order
with a term longer than one year will be increased (unless such rates and
charges are periodically adjusted to reflect ▇▇▇▇▇ Systems' then-current
commercial rates and charges), effective as of each anniversary of that Task
Order's effective date by the percentage that the Private Industry, Wages and
Salaries, 12-Month Percent Change, Not Seasonally Adjusted, index ("ECI") for
the United States as published by the Bureau of Labor Statistics of the
Department of Labor, for such anniversary exceeds the ECI for the previous such
anniversary. If the Bureau of Labor Statistics stops publishing this index or
substantially changes the content or format thereof, the parties will substitute
another mutually acceptable price index.
6. Termination. This Agreement or any Task Orders may be terminated as follows:
(a) If Client defaults in the payment of any amount due under any Task
Order and does not cure the default within one business day after receiving
written notice of such default, then ▇▇▇▇▇ Systems may terminate the Task Order
or this Agreement (and thereby all Task Orders) by providing written notice of
termination to Client;
(b) If either party materially defaults in the performance of any term of
a Task Order or this Agreement with respect to a specific Task Order (other than
by nonpayment) and does not substantially cure such default within 30 days after
receiving written notice of such default, then the non-defaulting party may
terminate the Task Order by providing ten days prior written notice of
termination to the defaulting party; or
(c) Either party may terminate this Agreement by providing the other party
with at least 30 days prior written notice of termination if there are no
outstanding Task Orders.
All Task Orders shall terminate immediately upon termination of the
Agreement.
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7. Confidentiality.
(a) Confidential Information. Each receiving party shall use at least the
same degree of care, but no less than a reasonable degree of care, to avoid
unauthorized disclosure or use of each disclosing party's Confidential
Information, including any third party Confidential Information disclosed by the
disclosing party, as it employs with respect to its own Confidential Information
of similar importance. Each receiving party may disclose Confidential
Information only to the other party to this Agreement and its own officers,
directors, and employees and to its consultants, subcontractors and advisors who
reasonably need to know it. Each receiving party shall be responsible to the
disclosing party for any violation of this Agreement by its officers, directors,
employees, consultants, subcontractors or advisors. No receiving party may print
or copy, in whole or in part, any documents or other media containing a
disclosing party's Confidential Information, other than copies for its officers,
directors, employees, consultants or advisors who are working on the matter,
without the prior consent of the disclosing party. No receiving party may use a
disclosing party's Confidential Information for competing with the disclosing
party or for any purpose not in furtherance of this Agreement. The term
"Confidential Information" is defined to mean, with respect to Client 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 Client'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 Client 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.
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(d) Exclusions. Confidential Information shall not include information
that (1) was known by the receiving party without an obligation of
confidentiality prior to its receipt from the disclosing party, (2) is
independently developed by the receiving party without reliance on Confidential
Information, (3) is or becomes publicly available without a breach of this
Agreement by the receiving party, (4) is disclosed to the receiving party by a
third person who is not required to maintain its confidentiality, or (5) is
required to be disclosed by reason of legal, accounting or regulatory
requirements beyond the reasonable control of the receiving party.
(e) Obligations upon Termination or Expiration. Promptly after the
expiration or termination of this Agreement, 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.
8. Client Obligations. Client will provide timely access to Client personnel,
systems and information required for ▇▇▇▇▇ Systems to perform its obligations
hereunder. Client shall provide to ▇▇▇▇▇ Systems' employees performing its
obligations hereunder at Client's premises, without charge, a reasonable work
environment in compliance with all applicable laws and regulations, including
office space, furniture, telephone service, and reproduction, computer,
facsimile and other necessary equipment, supplies, and services. With respect to
all third party hardware or software operated by or on behalf of Client, Client
shall, at no expense to ▇▇▇▇▇ Systems, obtain all consents, licenses and
sublicenses necessary for ▇▇▇▇▇ Systems to perform under the Task Orders and
shall pay any fees or other costs associated with obtaining such consents,
licenses and sublicenses. Client shall indemnify, defend, and hold ▇▇▇▇▇ Systems
harmless from and against all third party claims and expenses, including
reasonable attorneys' fees and expenses, arising by reason of any failure or
delay by Client to obtain the consents, licenses or sublicenses necessary for
▇▇▇▇▇ Systems to perform under the Task Orders.
9. Warranty/Disclaimer of Warranty. ▇▇▇▇▇ Systems warrants that its services
shall be performed by qualified personnel in a manner consistent with good
practice in the information technology services industry. If ▇▇▇▇▇ Systems
breaches this warranty, it shall supply services to correct or replace the work
at no charge. THE REMEDY SET FORTH IN THIS SECTION IS CLIENT'S EXCLUSIVE REMEDY
FOR BREACH OF WARRANTY. ▇▇▇▇▇ SYSTEMS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
10. Third Party Goods. ALL THIRD PARTY SOFTWARE, HARDWARE AND SERVICES PROVIDED
BY ▇▇▇▇▇ SYSTEMS UNDER ANY TASK ORDER IS PROVIDED "AS IS," BUT ▇▇▇▇▇ SYSTEMS
WILL USE REASONABLE COMMERCIAL EFFORTS TO ASSIST CLIENT IN ENFORCING ANY THIRD
PARTY WARRANTY.
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11. Limitation of Liability Under the Are . ▇▇▇▇▇ Systems will have no liability
of any sort to Client for claims, actions and causes of action arising out of,
under, or in connection with this Agreement, except as such claims, actions and
causes of action arise out of a specific Task Order entered into by the parties
hereunder.
12. LIMITATION ON DIRECT DAMAGES. With respect to all claims, actions and causes
of action arising out of, under or in connection with a Task Order (including
claims, actions and causes of action arising out of, under or in connection with
this Agreement that arise out of such Task Order), regardless of the form of
action, whether in contract or tort (including negligence, strict liability or
otherwise) and whether or not such damages are foreseen, ▇▇▇▇▇ Systems'
liability will not exceed, in the aggregate, the total amount actually paid to
▇▇▇▇▇ Systems by Client for services provided under such Task Order (excluding
amounts paid as reimbursement of expenses or taxes) during the month period in
which the first claim, action, or cause of action arose out of, under or in
connection with such Task Order.
13. LIMITATION ON TYPE OF DAMAGES. With respect to all claims, actions and
causes of action arising out of, under or in connection with this Agreement and
all Task Orders (except for Client's obligations to make payments under this
Agreement), regardless of the form of action, whether in contract or tort
(including negligence, strict liability or otherwise) and whether or not such
damages are foreseen, neither party will be liable for, any amounts for
indirect, incidental, special, consequential (including without limitation lost
profits, lost revenue, or damages for the loss of data) or punitive damages of
the other party or any third parties.
14. Statute of Limitations. Neither party may assert a claim against the other
party more than one year after the date that such claim arose.
15. Indemnification. ▇▇▇▇▇ Systems and Client shall each indemnify, defend and
hold the other harmless from all claims, damages, demands, liabilities, costs
and expenses, arising by reason of any claim for personal injury of any agent,
employee, customer or business visitor of the indemnitor or damage to tangible
property (other than data or information) owned or leased by the indemnitor,
without regard to which party caused such injury or damage; provided, however,
that indemnitee gives indemnitor: (a) prompt written notice of any such claims;
failure or delay to so notify indemnitor shall not relieve indemnitor from any
liability hereunder so long as the failure or delay shall not have prejudiced
the defense of such claim; (b) reasonable assistance in defending the claim; and
(c) sole authority to defend or settle such claim. The parties agree that ▇▇▇▇▇
Systems will not assume and should not be exposed to the business and
operational risks associated with Client's business. Therefore, Client shall
indemnify, defend and hold ▇▇▇▇▇ Systems harmless from and against all third
party claims and expenses, including reasonable attorneys' fees and expenses,
arising by reason of the use by Client of the services, materials and resources
provided by ▇▇▇▇▇ Systems hereunder.
16. Waiver. No change, waiver, or discharge hereof shall be valid unless in
writing and signed by the party against which it is sought to be enforced. No
delay or omission by either party in exercising any right hereunder shall be
construed as a waiver. A waiver by either of the parties of any provision or
breach shall not be a waiver of any other provision or breach.
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17. Relationship of Parties. ▇▇▇▇▇ Systems is acting only as an independent
contractor and does not undertake, by this Agreement, any Task Order or
otherwise, to perform any obligation of Client, whether regulatory or
contractual, or to assume any responsibility for Client's business or
operations. Neither party shall act or represent itself, directly or by
implication, as an agent of the other, except as expressly authorized in a Task
Order. ▇▇▇▇▇ Systems has the sole right to supervise and manage its employees
and resources hereunder and to perform or cause the performance of all services
under this Agreement or any Task Order.
18. Force Maeure. Neither party shall be liable for any failure or delay in its
performance (other than non-payment) due to circumstances beyond its reasonable
control, provided that it notifies the other party as soon as practicable and
uses reasonable commercial efforts to resume performance.
19. Severability. If any provision of this Agreement or any Task Order is
declared or found to be illegal, unenforceable or void, then the parties will be
relieved of all obligations arising under such provision, but only to the extent
that such provision is illegal, unenforceable or void, it being the intent and
agreement of the parties that this Agreement and any Task Order will be deemed
amended by modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objective. If such illegal, unenforceable or void provision
does not relate to the payments to be made to ▇▇▇▇▇ Systems hereunder and if the
remainder of this Agreement or any Task Order will not be affected by such
declaration or finding and is capable of substantial performance, then each
provision not so affected will be enforced to the extent permitted by law.
20. ▇▇▇▇▇ Systems Know-How. Client acknowledges that, prior to the Effective
Date, ▇▇▇▇▇ Systems has acquired, conceived, developed or licensed, and after
the Effective Date will continue to acquire, conceive, develop or license,
certain architectures, concepts, industry knowledge, techniques, templates, and
works of authorship which embody copyrights, inventions, trade secrets and other
intellectual property relating to the type of services to be performed for
Client (collectively, the "Know-How"). Client desires ▇▇▇▇▇ Systems to apply its
Know-How in connection with the services hereunder, and acknowledges that
performance of the Services will enhance and expand the Know-How. Subject to the
confidentiality provisions of this Agreement, nothing in this Agreement or any
Task Order will impair ▇▇▇▇▇ Systems' right to use its Know-How or to acquire,
license, market, distribute, develop for itself or others or have others develop
for ▇▇▇▇▇ Systems similar technology performing the same or similar functions as
the technology and services contemplated by this Agreement or any Task Order.
21. Survival. Any sections of this Agreement that by their nature reasonably
should survive any termination or expiration of this Agreement, shall survive
any termination or expiration of this Agreement.
22. Attorneys' Fees. If either party sues the other in connection with this
Agreement, the prevailing party shall recover its reasonable attorneys' fees and
costs.
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23. Governing Law. The laws of California shall govern this Agreement without
giving effect to any rules of conflicts of law. Both parties waive their right
to a jury trial as to any or all of the issues arising out of or related to this
Agreement.
24. Media Releases. Neither party shall identify the other party in any media
releases, public disclosures or marketing material without the prior consent of
the other party, except for (i) any announcement intended solely for a party's
internal distribution, (ii) any listing of the other party as a client or vendor
of the other in confidential proposals, and (iii) any disclosure required by
law.
25. Assignment. Neither party may or can assign any of its rights and
obligations under this Agreement or any Task Order without the prior written
consent of the other, which consent will not be unreasonably withheld. ▇▇▇▇▇
Systems may use subcontractors to perform work under this Agreement or any Task
Order provided that any subcontract shall contain confidentiality provisions
substantially similar to those herein.
26. Notices. Any notice under this Agreement shall be deemed delivered when
delivered in person, the day after being sent by Federal Express or comparable
overnight courier, or five days after being mailed by registered or certified
U.S. mail, return receipt requested, to the person designated at the address set
forth below. Either party may change its address by written notice to the other
party.
If to ▇▇▇▇▇ Systems: With a copy to:
▇▇▇▇▇ Systems Corporation ▇▇▇▇▇ Systems Corporation
Attn: President Attn: General Counsel
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
If to Client:
California Power Exchange Corporation California Power Exchange Corporation
Attn: Chief Financial Officer Attn: Managing Attorney
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Jeffer, Mangels, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, LLP
2121 Avenue of the Stars, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
27. Entire Agreement. This Agreement and the Task Orders issued hereunder
constitute the final, entire, and exclusive agreement between the parties with
respect to the subject matter hereof and may be amended or modified only in
writing. In case of any inconsistency between
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this Agreement and a Task Order, the Task Order shall prevail with respect to
interpretation of that Task Order, except that no Task Order may survive
termination of this Agreement.
28. Effectiveness. This Agreement shall become effective upon the entry of final
and nonappealable order by the United States Bankruptcy Court:
(a) Approving Client's execution and performance of this Agreement,
(b) Providing that all payments hereunder due ▇▇▇▇▇ Systems shall have
administrative expense priority under U.S.C. Section 503(b),
(c) Rejecting that certain Information Technology Services Agreement
between ▇▇▇▇▇ Systems and Client dated February 28, 2000, and setting
a bar date for the filing of claims created thereby, and
(d) Releasing ▇▇▇▇▇ Systems from any and all causes of action Client may
have under 11 U.S.C. Section 550.
Agreed by Client: Agreed by ▇▇▇▇▇ Systems:
CALIFORNIA POWER EXCHANGE ▇▇▇▇▇ SYSTEMS CORPORATION
CORPORATION,
as Debtor-in Possession
By: /s/ By: /s/
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Exhibit to the Master Services Agreement
Form of Task Order
Task Order No. 001
▇▇▇▇▇ Systems Corporation ("▇▇▇▇▇ Systems") and California Power Exchange
Corporation ("Client") hereby enter into this Task Order No. 001 under the
Master Services Agreement between such parties, effective as of March 10, 2001
(the "Agreement"), on the following terms. Except as otherwise defined herein,
all capitalized terms used herein shall have the same meaning as in the
Agreement.
1. Term. This Task Order will commence on March 10, 2001 (the "Task Order
Effective Date") and will continue until May 31, 2001, unless earlier
terminated in accordance with the Agreement. Subject to agreement on rates
and services, this Task Order may be extended upon mutual written
agreement of the parties.
2. ▇▇▇▇▇ Sstems Obligations. ▇▇▇▇▇ Systems will provide the resources
described in Schedule A on a time and materials basis. These resources
will, to the extent possible with the resources provided during the term
of this Task Order, perform tasks and complete deliverables specified by
the Project Managers.
3. Project Managers.
Client Project Manager: ▇▇▇ ▇▇▇
▇▇▇▇▇ Systems Project Manager: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (until 3/20/2001)
▇▇▇▇ ▇▇▇▇▇▇▇ (starting 3/21/2001)
4. Client Responsibilities. In addition to its obligations in the Agreement,
Client will provide or perform the following to allow ▇▇▇▇▇ Systems to
perform its obligations hereunder:
(a) Cooperation. Client shall keep ▇▇▇▇▇ Systems informed, as
reasonably appropriate, about those aspects of Client's business
that could reasonably have a material effect on the demand for, or
provision of, the services to be provided under this Task Order.
Client shall cooperate with ▇▇▇▇▇ Systems to ensure that Client
does not unreasonably delay processes and procedures dependent upon
information from or action by Client.
(b) Access to Software.
(i) Client Proprietary Software. Client shall provide ▇▇▇▇▇
Systems with access to, and the necessary rights to operate,
modify, and enhance, its proprietary software as necessary
for ▇▇▇▇▇ Systems to perform its obligations under this Task
Order ("Client Proprietary Software").
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Client shall pay any access or other fees associated with
obtaining such rights to the Client Proprietary Software. Client
shall pay all license, maintenance and other fees associated with
the Client Proprietary Software.
(ii) Client Vendor Software. Client shall provide ▇▇▇▇▇ Systems with
access to, and the necessary rights to operate and, where
necessary to perform the Services to modify and to enhance, all
third party software necessary for ▇▇▇▇▇ Systems to perform its
obligations under this Task Order ("Client Vendor Software") and
shall pay any access or other fees associated with obtaining such
rights. Client shall pay all license, maintenance and other fees
associated with the Client Vendor Software. Except as contemplated
by this Section (b)(ii), ▇▇▇▇▇ Systems' access to, and other
rights in respect of, Client Vendor software shall be subject to
the terms of the applicable software license agreement between
Client and the applicable vendors. If Client is unable to obtain
the rights described in this paragraph (ii), (A) ▇▇▇▇▇ Systems
shall be relieved of any obligations under this Task Order that
cannot be performed in the absence of such rights without
violating a third person's intellectual property or other rights,
and (B) Client and ▇▇▇▇▇ Systems shall work together in good faith
to find an alternative way for Client to obtain any services that
▇▇▇▇▇ Systems cannot perform in a manner that is reasonably
satisfactory to both parties.
(c) Access to Client Facilities. Client shall provide ▇▇▇▇▇ Systems access to
its facilities and shall provide to all ▇▇▇▇▇ Systems employees and
contractors performing services at such facilities ("PSC Personnel"),
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. Client shall procure and
purchase at its sole cost and expense all hardware and software reasonably
required by ▇▇▇▇▇ Systems to provide services under this Task Order.
Client shall provide such access 24 hours a day, seven days a week. ▇▇▇▇▇
Systems shall obey all generally applicable rules and procedures at any
Client facility of which Client has notified ▇▇▇▇▇ Systems. Client agrees
that such Client facilities shall comply with all applicable laws and
regulations. PSC Personnel shall receive similar technologies to those
currently in use or contemplated at Client.
(d) Access to Technology. Client shall provide ▇▇▇▇▇ Systems with access to
all hardware, equipment, and technology related items and services
reasonably necessary for ▇▇▇▇▇ Systems to perform its obligations under
this Task Order (the "Client Technology"). Client shall pay all costs and
expenses, including without limitation, maintenance costs, associated with
the Client Technology.
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(e) To the extent, and only to the extent, Client's insurance or tariff
covers Client's obligations under this Section (e), Client shall
indemnify, defend and hold ▇▇▇▇▇ Systems harmless from any and all
claims, damages, demands, liabilities, costs and expenses, including
reasonable attorneys' fees and expenses resulting from, arising out
of or relating to any third party claims by Client's participants
and vendors relating to any duties or obligations of Client to such
third parties.
5. Payments and Invoices. ▇▇▇▇▇ Systems will provide and Client will pay for
the resources provided herein on a time and materials basis at the rates
set forth in Schedule A. Client may request to reduce resources below the
numbers indicated in Schedule A provided that Client provide ▇▇▇▇▇ Systems
at least one month written notice of its request. Such rates (i) are
subject to adjustment in accordance with the terms of the Agreement and
(ii) do not include taxes or out-of-pocket expenses which will be invoiced
and payable in accordance with the provisions of the Agreement. If Client
requests, and ▇▇▇▇▇ Systems agrees to provide, additional resources from
▇▇▇▇▇ Systems to provide services under this Task Order, Client will pay
the rates set forth in Schedule B for such resources on a time and
materials basis. ▇▇▇▇▇ Systems will deliver, and Client will pay, invoices
for services to provided under this Task Order weekly in advance.
AGREED:
CALIFORNIA POWER EXCHANGE ▇▇▇▇▇ SYSTEMS CORPORATION
CORPORATION, By: /s/
as Debtor-in-Possession Name:
By: /s/ Date:
Name:
Date:
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Schedule A
Resources and Rates
Monthly Rate Overtime Rate 3/10 - 3/20 3/21 - 3/31 4/1 - 4/30 5/1 - 5/31
Service Area Per FTE (1) per Hour (2) 2001 (3) 2001 (3) 2001 (3) 2001 (3)
------------ ----------- ------------ -------- -------- -------- --------
Account Mgmt
Project Manager $ 34,000.00 $300. 0.35FTEs 0.35FTE One FTE One FTE
Wind-down Mgr $ 34,000.00 $300. 0.35 FTEs None None None
Admin. Support $ 10,000.00 $150. 0.35 FTEs 0.35FTE One FTE One FTE
Operations _
Operations Mgr $ 34,000.00 $250. 0.35 FTEs 0.35FTE One FTE One FIE
Unix Operations $ 29,000.00 $250. 1.05 FTEs 0.70 FTEs Two FTEs One FTEs
Windows NT Operations $ 29,000.00 $250. 1.05 FTEs 0.7 FTEs Two FTEs Two FTEs
Database Administrator $ 29,000.00 $250. 1.4 FTEs 0.7 FTEs Two FTEs One FTE
Wind down $ 29,000.00 $250. 1.93 FTEs 1.93 FTEs Three FTEs Two FTE
Help Desk $ 15,000.00 n/a 1.65 FTEs 0.45 FIEs One FTE None
Applications Maintenance
Applications Mgr $ 34,000.00 $300. 0.7 FTEs 0.7 FIEs One FTE None
Compliance $ 29,000.00 $250. 1.75 FTEs 1.75 FTEs 2.53 FTEs One FTE
Finance $ 29,000.00 $250. 0.7FTEs 0.7FTEs Two FTEs 0.77FTEs
Settlements $ 29,000.00 $250. 1.21FTEs 1.21FTEs 1.98 FTEs None
Corporate Website $ 29,000.00 $250. 0.7FrEs 0.35FTEs 0.70FTEs None
Wind down $ 29,000.00 $250. 1.05FTEs 1.4FTEs Four FTEs Two FTEs
Applications Development
Soft Cap Development $ 31,000.00 $300. 1.75FTEs 1.4 FTEs 1.5 FTEs 1.5 FTEs
(1) For purposes of this Task Order, the term "FTE" means the level of
effort provided by a typical employee during a calendar month
comprised of 40-hour work-weeks, after allowances are made for
scheduled and unscheduled absences resulting from illness, vacation,
training and personal issues.
(2) Overtime rates will be charged for all time worked outside the
normal service hours set forth below. A minimum charge of two hours
will be billed.
(3) Unless otherwise agreed, services will be provided during the
"normal service hours" of 9:00 a.m. to 6:00 p.m., Pacific time,
Monday through Friday (except Client holidays), except that Help
Desk services will be provided 24 hours per day, seven days per week
until March 20, 2001.
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Schedule B
▇▇▇▇▇ SYSTEMS CORPORATION
COMMERCIAL RATES (Effective 7/00)
Consulting Daily Monthly
Analyst $ 1,950 $ 41,760
pecialist/Manager 1 $ 2,160 $ 46,980
Specialist/Manager 2 $ 2,640 $ 57,420
Sr Specialist/Sr Manager $ 2,880 $ 62,640
Advisor $ 3,120 $ 67,860
irector $ 3,600 $ 78,300
Principal/Sr Advisor/Group Director $ 6,000 $130,500
Other Daily Monthly
One Month
Jr Specialist/Analyst $ 1,300 $ 28,200
pecialist/Manager $ 1,800 $ 39,000
Sr Specialist/Sr Manager $ 2,000 $ 43,400
Lead Specialist/Project Manager $ 2,400 $ 52,000
Client Manager $ 2,900 $ 62,900
Advisor/Director $ 3,000 $ 65,000
rr Advisor/Group Director $ 3,800 $ 82,400
Terms:
- All rates are for services only. Travel and other expenses are not
included.
- Rates apply only to North America Operations.
- Rates are based on North America averages and do not account for
geographic market differences or specialized technical expertise.
- Rates are subject to EC.
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