EXHIBIT 10.24
***Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Section 200.80(b)(4),
200.83 and 230.406
Contract No. ____________________
AGREEMENT
for
TECHNICAL SERVICES
between
ENOVA CORPORATION
and
TRANSNATIONAL PARTNERS, II
for
BUILDING CENTER OF EXCELLENCE
TABLE OF CONTENTS
Page
----
1. SCOPE .............................................................. 1
2. COMMENCEMENT AND COMPLETION OF WORK ................................ 2
3. REPRESENTATIVES .................................................... 2
4. RESPONSIBILITY OF CONTRACTOR ....................................... 2
5. INSPECTION ......................................................... 2
6. CHANGES ............................................................ 2
7. DELAYS ............................................................. 3
8. OWNERSHIP OF INTELLECTUAL PROPERTY AND MATERIAL .................... 3
9. REPORTS ............................................................ 4
10. SUBCONTRACTORS ..................................................... 5
11. EMERGING BUSINESS ENTERPRISES ...................................... 5
12. COMPENSATION ....................................................... 5
13. PAYMENT ............................................................ 6
14. AUDIT .............................................................. 7
15. TAXES .............................................................. 7
16. INDEPENDENT CONTRACTOR ............................................. 8
17. WARRANTY ........................................................... 8
18. INSURANCE .......................................................... 8
19. INDEMNITY .......................................................... 9
20. GOVERNING LAW ...................................................... 10
21. COMPLIANCE WITH LAWS ............................................... 10
22. TERMINATION ........................................................ 10
23. LIENS .............................................................. 11
24. ASSIGNMENT ......................................................... 11
25. EQUAL EMPLOYMENT OPPORTUNITY ....................................... 11
26. GOVERNMENT CONTRACT CLAUSES INCORPORATED BY REFERENCE .............. 11
27. NONWAIVER .......................................................... 11
28. DISPUTES ........................................................... 12
29. NOTICES OR DEMANDS ................................................. 12
30. NONDISCLOSURE ...................................................... 13
31. TIME OF ESSENCE .................................................... 14
32. VALIDITY ........................................................... 14
33. SURVIVAL ........................................................... 14
34. NO ORAL MODIFICATIONS .............................................. 14
35. CAPTIONS ........................................................... 14
36. COUNTERPARTS ....................................................... 14
37. AUTHORITY .......................................................... 15
38. COMPLETE AGREEMENT ................................................. 15
SCHEDULE A - TECHNICAL SERVICES SCOPE OF WORK
SCHEDULE B - COMPENSATION
SCHEDULE C - TASK COST ESTIMATES
SCHEDULE D - REQUIRED INSURANCE
SCHEDULE E - TERMINATION FEE
SCHEDULE F - GOVERNMENT CONTRACT CLAUSES
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ENOVA CORPORATION
San Diego, California
TECHNICAL SERVICES AGREEMENT
This Technical Services Agreement ("Agreement") is made effective as of
January 1, 1997, between ENOVA CORPORATION, a Delaware corporation ("Enova") and
TRANSNATIONAL PARTNERS, II, a California limited liability company
("Contractor").
The Parties hereby agree as follows:
1. SCOPE
Contractor shall perform, at its own proper cost and expense, in the most
substantial and skillful manner, to the satisfaction of Enova, the following
generally described Technical Services (hereinafter, the "Services"):
(A) Providing advice and assistance to Enova in finalizing the
architectural specification for the Center of Excellence ("▇▇▇") to
be established by Enova as outlined generally in the confidential
ITS Future State document dated October, 1996;
(B) Conducting screening and initial interviews and recommending to
Enova the hiring or retention of potential employees, independent
contractors and consultants for the ▇▇▇;
(C) Assisting Enova in the selection and management of system
integrators, software services companies and other vendors to
develop and build the ▇▇▇'▇ software and networking infrastructure
and assisting Enova in the procurement process to be conducted
through Enova's procurement department;
(D) Providing advice and assistance to Enova in developing architecture
and other design specifications for business line software or
services to be developed through the ▇▇▇; and
(E) Providing additional information technology consulting and expertise
as needed to supplement Enova's information technology personnel.
The Services, including the scope of work, specifications, schedule of
deliverables, and performance standards, are more fully described in SCHEDULE A
- TECHNICAL SERVICES SCOPE OF WORK (hereinafter, the "Scope of Work"), attached
hereto and made a part hereof by this reference.
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2. COMMENCEMENT AND COMPLETION OF WORK
This Agreement shall commence January 1, 1997, and shall be in full force
and effect through upon execution by the parties upon execution by the parties,
unless terminated earlier in accordance with Article 24. Contractor agrees to
commence and perform the Services in accordance with the reasonable requests of
Enova Representative. The nature of the Services is such that timely performance
is critical to the orderly progress of related work and to the operating
schedule of Enova.
3. REPRESENTATIVES
3.1 Enova Representative: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Director, Information
Technology Services.
Enova designates, and Contractor accepts, the individual named above
as Enova Representative for all matters relating to Contractor's performance of
Services under this Agreement. The actions taken by the Enova Representative
regarding such performance shall be deemed the acts of Enova. Enova may, upon
written notice to Contractor, pursuant to Article 29 hereof, change the
designated Representative.
3.2 Contractor Representative: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Contractor designates, and Enova accepts, the individual named above
as Contractor Representative for all matters relating to Contractor's
performance of Services under this Agreement. The actions taken by Contractor
Representative shall be deemed the acts of Contractor.
4. RESPONSIBILITY OF CONTRACTOR
Contractor shall perform the Services in accordance with established
professional and business standards and ethics. All Services shall conform to
the Scope of Work and performance standards set forth in the Scope of Work.
Contractor shall remedy any and all deficiencies in its Services which result
from Contractor's failure to adhere to the Scope of Work or to adhere to any
specifications and performance requirements for any work within five business
days from the date of notice of the deficiency.
5. INSPECTION
All Services performed by Contractor shall be subject to the inspection
and approval of Enova at all times, but such right of inspection or actual
approval of Services shall not relieve Contractor of responsibility for the
proper performance of the Services. Contractor shall provide to Enova or Enova's
designee access to Contractor's facility or facilities where the Services are
being performed and sufficient, safe and proper work conditions for such
inspection and Contractor shall furnish to Enova such information concerning its
operations or the performance of the Services as Enova shall reasonably request.
6. CHANGES
6.1 Either party may initiate a request for a change in this Agreement by
advising the other party of the change in writing. As soon as practicable after
notice of such request,
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Contractor shall prepare and forward to Enova in writing the proposed changes in
this Agreement, together with a detailed estimate of the effect on Contractor's
compensation.
6.2 If the parties fail to agree on an Amendment to this Agreement
("Amendment") relating to a proposed change, Enova reserves the option to retain
others to provide the Services subject to the change order.
6.3 Contractor shall implement a change in this Agreement only after
Contractor has received a written Amendment executed by an authorized
procurement agent or officer of Enova. All changes shall be performed under the
Terms and Conditions of this Agreement. Contractor hereby expressly waives any
compensation, reimbursement of expenses and any other right to receive payment
with respect to any change not authorized by a written Amendment to this
Agreement.
7. DELAYS
Contractor shall notify Enova in writing immediately of any delay, or
anticipated delay in Contractor's performance of this Agreement due to causes or
circumstances beyond the reasonable control of Contractor, and the reason for
and anticipated length of the delay. Enova may extend the date of performance
for a period equal to the time lost by reason of the delay if Enova, in its sole
judgment, determines that the delay is due to causes or circumstances beyond the
reasonable control of Contractor. Contractor shall not be eligible under any
circumstances for additional compensation due to any such extension of time. Any
extension to the contract term or deliverables schedule pursuant to this
Article, shall be documented by a written Amendment to this Agreement.
8. OWNERSHIP OF INTELLECTUAL PROPERTY AND MATERIAL
8.1 Any idea, invention, work of authorship, drawing, design, formula,
algorithm, utility, tool, pattern, compilation, program, device, method,
technique, process, improvement, development or discovery (hereinafter,
collectively, "Invention"), whether or not patentable, or copyrightable, or
entitled to legal protection as a trade secret or otherwise, that Contractor may
conceive, make, develop, create, reduce to practice, or work on, in whole or in
part, in the course of performing the Services shall be owned by Enova and shall
be delivered to Enova upon completion of the Services. Contractor agrees that
any copyrightable Invention shall constitute a "work made for hire." Contractor
hereby assigns to Enova, without royalty or any further consideration,
Contractors entire right, title and interest in and to any such Inventions.
8.2 Contractor hereby grants to Enova an irrevocable, assignable,
nonexclusive royalty-free unrestricted license to use, copy, distribute and make
derivatives of any proprietary rights or specialized knowledge of Contractor or
any subcontractor that are part of any work product furnished by Contractor to
Enova under this Agreement for Enova's and its affiliates' use. Prior to
furnishing to Enova any proprietary rights of Contractor or any subcontractor,
Contractor shall inform Enova in writing of its plan to provide such rights and
shall describe such rights in sufficient detail so that Enova can understand
that the scope of the rights claimed by Contractor.
8.3 If requested by Enova, Contractor agrees to take all actions
necessary, at Enova's sole cost and expense, to obtain, maintain or enforce
patents, copyrights, trade
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secrets and other proprietary rights in connection with any Invention, and
Contractor agrees that its obligations under this Article shall continue beyond
the termination or completion of this Agreement.
8.4 Any and all material and information prepared, accumulated or
developed by Contractor, any subcontractor or their respective employees,
including, without limitation, documents, drawings, calculations, maps, plans,
estimates, specifications, sketches, notes, reports, summaries, data models and
samples, source code, object code, object libraries and development tools, to
the extent Enova may determine (hereinafter, collectively, the "Material"),
shall become the property of Enova when prepared or in process, whether or not
delivered by Contractor. Contractor shall deliver the Material, together with
any other materials furnished to Contractor by Enova hereunder, to Enova upon
request, and, in any event, upon termination or completion of this Agreement.
8.5 Contractor acknowledges that Enova is making a substantial investment
in the development and building of the ▇▇▇ and in the future development of
information technology for providing business products and services to Enova's
and its affiliates' customers. Enova could lose a substantial strategic
advantage were its competitors to gain access to any of the trade secret
information developed by Contractor or Enova relating to the ▇▇▇. Without
limiting the provisions set forth in subsections 8.1 through 8.4 inclusive,
Contractor agrees that during the term of this Agreement and for a period of
eighteen (18) months following its expiration or termination, Contractor will
not provide any consulting services to any gas or electric utility, any utility
holding company or any regulated or unregulated subsidiary of a utility holding
company, any power marketer or any other company that provides energy
information or energy purchasing related products or services in the United
States
8.6 Prior to working on any customized software, Contractor shall identify
in writing to Enova any third party development tools, (whether or not
commercially available), compilers, libraries or other source code to be
embedded in, used in the development of and/or necessary for the maintenance of
any customized software written by Contractor or any subcontractor in accordance
with SCHEDULE A. In addition, prior to working on the project, Contractor shall
inform Enova of the cost of procuring a perpetual royalty-free license to use,
modify, translate and create derivatives of the third party source code as part
of the Enova software, the cost of obtaining a run-time executable license to
the third party software and the cost of development tools (whether or not
commercially available). If Enova approves the project in accordance with
SCHEDULE A, then Contractor shall be responsible for initiating and assisting
Enova in the procurement, in the name of Enova, of any third party license
required to enable Enova to maintain, enhance and create derivatives of its
customized software, and, in the case of any business line software, to enable
Enova or its affiliates to sublicense Enova's software (with the embedded third
party code) on a shrink wrap basis.
9. REPORTS
Contractor shall provide monthly status reports as requested by Enova
Representative. Reports shall make monthly comparisons of the Services rendered
to date against the Scope of Work, including any deliverables and costs. Such
reports shall include an explanation of any significant variations, an
identification of any potential or known developments which may impact Enova,
and any corrective actions implemented. In
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addition, Contractor shall provide every six months updating the strategy
direction of information technology for the ▇▇▇ based upon developments at the
▇▇▇ during the preceding six months and industry technical advances.
10. SUBCONTRACTORS
Contractor shall at all times be responsible for the acts and omissions of
subcontractors and individuals directly or indirectly employed by them.
Contractor shall be responsible for performance of all the Services, whether
performed by Contractor or its subcontractors. This Agreement shall not give
rise to any contractual relationship between Enova and a subcontractor of
Contractor. Enova shall not undertake any obligation to pay or to be responsible
for the payment of any sums to any subcontractor of Contractor. Contractor
acknowledges that the vendors supplying hardware, software, software development
services and integration services to the ▇▇▇ will not be subcontractors of
Contractor. The only subcontractors of Contractor will be consultants retained
by Contractor with the prior approval of Enova to provide technical and
consulting services to Enova under this Agreement.
11. EMERGING BUSINESS ENTERPRISES
It is the policy of Enova to provide maximum opportunity for women,
minority and service disabled veteran business enterprises, hereafter referred
to as emerging business enterprises ("EBE") to participate in the performance of
contracts. As part of Enova's efforts toward achieving its EBE goals, Enova
requests and expects as performance to this Agreement, Contractor to utilize EBE
subcontractors and subsuppliers and to make good faith efforts to set and attain
goals in parity with the Enova goals when contracting for work with Enova.
12. COMPENSATION
12.1 Contractor agrees that Contractor and Enova shall agree to a
budget for each deliverable. Contractor shall not ▇▇▇▇ Enova for any amounts
in excess of the budget unless Enova agrees in writing to allow Contractor to
exceed the budget for a particular item. In no event shall Contractor's total
compensation for Services during each of the twelve month periods, commencing
January 1 and ending December 31, during the term of this Agreement exceed
[...***...] for such period unless prior to providing any Services in excess
of the "not to exceed project budget", an executive officer of Enova approves
in writing a revised not to exceed project budget" for the Services. No right
to exceed any deliverable budget or to exceed project budget" shall be
inferred from course of performance or course of dealing. The "not to exceed
budget" is based upon Contractor's two year cost estimate for the Services
specified in SCHEDULE A which is attached as SCHEDULE C - TASK COST
ESTIMATES. The TASK COST ESTIMATES do not impose any obligation on Enova to
use a minimum number of hours of Contractors Services and are not intended by
either party to be used as a performance standard, as a measure of damages or
as a basis for the calculation of any termination fees. The "not to exceed
budget" is not a budget for any deliverable and does not negate the
obligation to budget the individual deliverables.
12.2 Contractor hereby agrees to accept as full compensation for
satisfactory performance of the Services as described in Article 1 and SCHEDULE
A, the compensation
*CONFIDENTIAL TREATMENT REQUESTED
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that is outlined in SCHEDULE B - COMPENSATION. Payments shall be made at the
times and in the manner specified in Article 13.
13. PAYMENT
13.1 Except as otherwise expressly provided, Contractor shall invoice
Enova monthly for the prior month's Services and for reimbursement of
Contractor's reasonable out-of-pocket travel and related expenses incurred at
the request of Enova and with the prior written approval of the Enova
Representative plus any additional reasonable out-of-pocket expenses incurred in
connection with the Services with the prior written approval of the Enova
Representative. Except as otherwise expressly provided, Enova will not reimburse
Contractor for its overhead expenses including any legal fees, insurance costs
or office expenses and Enova will not reimburse Contractor for any out-of-pocket
expenses or per diem allowances of its subcontractors. Invoices shall have
complete support documentation of all charges incurred, including timesheets and
any other data required to calculate fees or variable rate charges, plus
receipts for reimbursable expenses in amounts equal to or greater than $25.00
per item and a breakdown by category.
13.2 If Enova consents to Contractor's retention of a subcontractor to
develop any software deliverables in accordance with SCHEDULE A, then Contractor
and Enova shall agree to a milestone and delivery or other payment schedule for
the deliverable and Contractor will invoice Enova in accordance with the payment
schedule.
13.3 Enova may withhold payment of the whole or part of any amount due or
claimed to be due by Contractor to such extent as may be necessary to protect
Enova from loss on account of any of the following;
13.3.1 Defective Services not remedied or any software errors or
software deficiencies not remedied, including repair costs, the cost of
procuring substitute Services or goods or the cost of rewriting unusable
software;
13.3.2 Third party claims filed or reasonable evidence indicating
probable filing of such claims.
13.3.3 Failure of Contractor to make payment promptly to its
employees, suppliers or subcontractors.
13.3.4 Damage caused by Contractor to others and/or Enova; or
13.3.5 A good faith dispute as to the achievement of a quarterly
deliverable or the calculation of the amount invoiced or a good faith dispute as
to the achievement of any milestone for a software deliverable or acceptance of
any software deliverable.
13.4 Contractor shall submit invoices in duplicate in a format approved by
Enova and as set forth in this Article to:
Originals to: Enova Corporation
Attention: Accounts Payable
P. 0. Box ▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇
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Copy to: Enova Corporation
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
Director, Information Technology Services
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Enova shall make payment within thirty (30) days after receipt and
approval of invoice.
14. AUDIT
14.1 Enova reserves the right to designate its own employee
representative(s) or its contracted representative with a certified public
accounting firm, who shall have the right to audit and to examine any cost,
payment, settlement or supporting documentation resulting from any Services and
work performed on this Agreement. Any such audit(s) shall be undertaken by Enova
or its contracted representative at reasonable times and in conformance with
generally accepted auditing standards. Contractor agrees to fully cooperate with
any such audit(s).
14.2 Contractor shall include a similar clause in its agreements with its
subcontractors reserving the right to designate Contractor's own employee
representative(s), its contracted representative from a certified public
accounting firm, and representative(s) from Enova, who shall have the right to
audit and to examine any cost, payment, settlement or other supporting
documentation resulting from any item set forth in its agreements.
14.3 Contractor shall be notified in writing of any exception taken as
a result of an audit of Contractor or a subcontractor. Contractor shall
refund the amount of any undisputed exception to Enova within ten (10) days.
If Contractor fails to make such payment, Contractor agrees to pay interest,
accruing monthly, at a rate of 10% per annum. Interest will be computed from
the date of written notification of exception(s) to the date Contractor
reimburses Enova for any exception(s). In the event an audit verifies
overcharges of five percent (5%) or more, then Contractor shall reimburse
Enova for the cost of the audit. Any disputed exceptions will be resolved
between the parties or pursuant to Article 28 hereunder.
14.4 This right to audit shall extend for a period of five (5) years
following the date of final payment under this Agreement. Contractor and each
subcontractor shall retain all necessary records/documentation for the entire
length of this audit period.
15. TAXES
Contractor assumes exclusive liability for and shall pay before
delinquency, all federal, state or local sales, use, excise and other taxes,
charges or contributions of any kind now or hereafter imposed on, or with
respect to, or measured by the equipment, materials, supplies or labor furnished
hereunder or the wages, salaries or other remunerations paid to individuals
employed in connection with the performance of the Services or any work
hereunder. Contractor shall hold harmless, indemnify and defend Enova, together
with any and all its officers, directors, agents and employees from any
liability, penalty, interest and expense by reason of Contractor's failure to
pay such taxes, charges or contributions. Contractor and Enova shall cooperate
with each other to minimize the tax liability of both parties to the extent
legally permissible, including separately stating taxable charges on
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Contractors invoices and supplying resale and exemption certificates, if
applicable, and other information as reasonably requested.
16. INDEPENDENT CONTRACTOR
16.1 It is agreed that Contractor shall perform the Services under this
Agreement as an independent contractor and no principal-agent or
employer-employee relationship or joint venture or partnership shall be created
with Enova.
16.2 Contractor represents to Enova that it and its subcontractors are
properly licensed in the State of California, insured, fully experienced and
properly qualified to perform the class and type of the Services as specified in
this Agreement, in addition to being properly equipped, organized, staffed and
financed to handle such Services.
16.3 Contractor shall perform the Services in an orderly and workmanlike
manner, enforce strict discipline and order among its personnel, and shall NOT
employ on the Services any personnel unskilled in the work assigned.
16.4 Contractor shall use prudent business practices in its relationships
with suppliers and subcontractors.
16.5 Contractor shall NOT engage in any advertising, publicity or other
promotional activities which in any way directly or indirectly refers to this
Agreement.
17. WARRANTY
Contractor expressly warrants, from the date of this Agreement until
twelve (12) months after the date on which the last Services are performed under
this Agreement by Contractor, that all the Services performed hereunder shall be
in compliance with the performance standards and specifications set forth in the
Scope of Work and the terms of this Agreement. Any Services furnished hereunder
failing to meet such standards shall be repeated or corrected, at no charge to
Enova. Additionally, Contractor shall reimburse Enova for any and all damages
and repair costs resulting from, or due to, any deficiencies in the Services
provided by Contractor. Any software deliverable will include the warranty set
forth in SCHEDULE A.
18. INSURANCE
Without limiting any of the other obligations or liabilities of
Contractor, Contractor shall, at its own expense, secure and maintain in effect
during the term of this Agreement, except as otherwise expressly provided on an
"Occurrence" and not a "Claims Made" basis, insurance coverages as described
herein, in amounts NOT less than the minimum limits specified, to protect
Contractor and Enova from claims or liabilities in any way arising out of
Contractors performance or non-performance hereunder: (1) Workers Compensation
Insurance and Employers Liability Insurance in accordance with statutory
requirements and limits, and (2) Commercial General Liability Insurance,
including completed operations coverage, products liability coverage, automobile
liability and contractual liability coverage for liability assumed by Contractor
in this Agreement, with limits of NOT less than the amount specified in SCHEDULE
D - REQUIRED INSURANCE (the limits specified on SCHEDULE D shall not be less
than $1,000,000 (One Million Dollars) for each occurrence for bodily injury
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and property damage combined, and, if no limits are specified in SCHEDULE D, the
limits shall not be less than $1,000,000 (One Million Dollars) for each
occurrence for bodily injury and property damage combined), (3) Claims Made
professional errors and omissions insurance with limits of not less than the
amount specified in SCHEDULE D (the limits specified on SCHEDULE D shall not be
less than $1,000,000 (One Million Dollars), provided that Enova shall reimburse
Contractor for the first $10,000 in premiums incurred to acquire a policy and
any renewals thereof during the term of this Agreement and for at least six
months following termination of the Agreement, and (4) such other insurance as
required pursuant to SCHEDULE D Contractor shall name Enova, and its past and
present parent company, subsidiaries, and affiliates, and their directors,
officers and employees as additional insureds on the policy(ies) of insurance
and endorsements to the policies in a form approved by Enova and shall provide
to Enova certificates evidencing this coverage. Contractor agrees that the
insurance provided to Enova hereunder shall be primary to any insurance of Enova
for all purposes, such Enova insurance to be considered as excess of and not
contributing with Contractors policies. Contractor shall be responsible solely
for any deductible or self-insured retention on such insurance. All such
insurance policy(ies) shall contain a severability of interest or cross
liability clause, shall contain a waiver by the insurer of subrogation in favor
of Enova, and shall provide that the insurance may not be modified, canceled or
not renewed for any reason, except with the insurer giving thirty (30) days'
prior written notice to Enova.
19. INDEMNITY
19.1 As between Enova and Contractor, Contractor shall be solely liable
for and Contractor shall indemnify, defend and hold Enova, and its parent
company, subsidiaries, affiliates, divisions and their respective directors,
officers, shareholders, employees, agents, representatives, successors and
assigns harmless from and against any and all claims, actions, suits,
proceedings, losses, liabilities, penalties, damages, costs or expenses
(including attorneys' fees and disbursements) of any kind whatsoever resulting
from (1) injuries to or death of any and all individuals, including, without
limitation, members of the general public, or any employee, agent, independent
contractor or consultant or affiliate of either Enova or Contractor, arising
from the negligence, error, omission or wilful misconduct or breach of this
Agreement by Contractor or its subcontractors, (2) damage to, loss, and/or
destruction of property, including, without limitation, to, property of Enova or
Contractor arising from the negligence, error, omission or wilful misconduct or
breach of this Agreement by Contractor or its subcontractors, (3) third party
claims of any kind, whether based upon negligence, strict liability or
otherwise, arising out of or in connected in any manner to Contractors or any of
its subcontractor's acts or omissions in breach of this Agreement, or (4)
Contractors failure to comply with Article 21 hereunder.
19.2 Contractor shall indemnify, defend and hold Enova, and its parent
company, subsidiaries, and affiliates and their directors, officers,
shareholders, employees, agents and representatives harmless from and against
any and all claims, actions, suits, proceedings, losses, liabilities, penalties,
damages, costs or expenses (including attorneys' fees and disbursements) of any
kind whatsoever arising from (1) actual or alleged infringement or
misappropriation by Contractor or any subcontractor of any patent, copyright,
trade secret, trademark, service ▇▇▇▇, trade name, or other intellectual
property right in connection with the Services, including without limitation,
any deliverable, (2) Contractors violation of any third party license to use
intellectual property in connection with the Services, including, without
limitation, any deliverable.
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19.3 If any claim is brought against Enova, then Contractor shall be
entitled to participate in, and, unless in the opinion of counsel for Enova a
conflict of interest between Enova and Contractor may exist with respect to such
claim, assume the defense of such claim, with counsel reasonably acceptable to
Enova. If Contractor does not assume the defense of Enova, or if a conflict
precludes Contractor from assuming the defense, then Contractor shall reimburse
Enova on a monthly basis for Enova's defense through separate counsel of Enova's
choice. Even if Contractor assumes the defense of Enova with acceptable counsel,
Enova, at its sole option, may participate in the defense, at its own expense,
with counsel of its own choice without relieving Contractor of any of its
obligations hereunder.
19.4 In no event, whether as contract, warranty, tort (including
negligence) or otherwise, shall Contractor or Enova be liable to the other party
for indirect, special, incidental or consequential damages, including, without
limitation, loss of data, loss of profits or down time costs.
20. GOVERNING LAW
The formation, interpretation and performance of this Agreement shall be
governed by the internal laws of the State of California.
21. COMPLIANCE WITH LAWS
Contractor and its subcontractors shall be deemed to be familiar with, and
at all times during performance of the Services shall comply with and observe,
all applicable federal, state and local laws, ordinances, rules, regulations,
executive orders, all applicable safety orders and all orders or decrees of
administrative agencies, courts or other legally constituted authorities having
jurisdiction or authority over Contractor, Enova or the Services.
22. TERMINATION
22.1 Contractor agrees that if (1) Contractor abandons the Services, or
(2) Contractor shall become bankrupt or insolvent, or shall assign this
Agreement, or sublet any part thereof, without the written authorization of
Enova, or (3) Contractor violates any of the provisions of this Agreement, or
executes this Agreement in bad faith, or (4) Contractor is not performing the
Services or any software development work in accordance with the terms of this
Agreement, Enova may notify Contractor, pursuant to Article 29, to discontinue
all or any part of the Services or work and Contractor shall thereupon
discontinue the Services, work or such parts thereof. Contractor shall not be
entitled to any termination fee if the Services, work or any part thereof is
terminated pursuant to this subsection.
22.2 It is also expressly agreed that Enova shall have the right to
terminate this Agreement, or any part thereof, at any time for its sole
convenience upon thirty (30) days' written notice, pursuant to Article 29, to
Contractor and payment of any fees accrued prior to the effective date of the
termination and, depending upon when such termination for convenience occurs, a
termination fee calculated as set forth on SCHEDULE E - TERMINATION FEES.
-10-
22.3 In no event shall Contractor be entitled to payment for any Services
which has NOT been authorized by Enova, or, if authorized, is NOT yet performed,
or any anticipated profits for any Services that have not been authorized or
performed.
23. LIENS
Without limiting the generality of Article 19, Contractor shall indemnify,
defend, and hold Enova, and its parent company, subsidiaries, affiliates and
their directors, officers, shareholders, employees, agents and representatives
harmless from and against any mechanics lien or stop notice claim against Enova
by Contractor, subcontractors, employees or agents pertaining to the Services
specified in this Agreement, including any software deliverables.
24. ASSIGNMENT
Contractor shall give personal attention to the execution of the Services
herein provided for, and shall NOT assign this Agreement, nor employ any
subcontractor for the execution of the same or any part thereof, without prior
written authorization of Enova. No such written authorization, however, shall be
construed as discharging or releasing Contractor in any way from the performance
of the Services or the fulfillment of any obligation specified in this
Agreement. Contractor shall remain jointly and severally liable with any
assignee of its rights or obligations.
25. EQUAL EMPLOYMENT OPPORTUNITY
If this Agreement is subject to Executive Order 11246 of September 24,
1965, Section 503 of the Rehabilitation Act of 1973, or the Vietnam Era
Veterans' Readjustment Act of 1974, Contractor agrees to comply with the equal
employment opportunity clauses set out at 41 CFR 60-1.4 and the requirements for
affirmative action for veterans and disabled persons set out at 41 CFR 60-250.4
and 60-741.4, respectively, which clauses are incorporated herein by reference
with the same force and effect as if stated in full text.
26. GOVERNMENT CONTRACT CLAUSES INCORPORATED BY REFERENCE
If this Agreement is entered into as a subcontract to a prime contract
with the United States Government, then each of the clauses set forth on
SCHEDULE F - GOVERNMENT CONTRACT CLAUSES (to the extent applicable) set forth in
the Federal Acquisition Regulation in effect on the date of this Agreement is
incorporated herein by reference, with the same force and effect as if they were
given in full text and the terms and conditions thereof shall be controlling
over any conflicting terms and conditions set forth in the Agreement or any
amendment hereto.
27. NON WAIVER
The failure of Enova to insist upon or enforce, in any instance, strict
performance by Contractor of any of the terms of this Agreement or to exercise
any rights herein conferred shall NOT be construed as a waiver or relinquishment
to any extent of its right to assert, or rely upon any such terms or rights on
any future occasion. No waiver shall be valid unless stated in writing as set
forth in Article 29.
-11-
28. DISPUTES
28.1 Any dispute that cannot be resolved between Contractor Representative
and Enova Representative shall be referred to Enova Chief Information Officer
and an officer of Contractor for resolution. If Enova and Contractor cannot
reach an agreement within a reasonable period of time or cannot agree on the use
of a mediator to assist in reaching an agreement, then Enova and Contractor
shall have the right to demand arbitration as provided for herein.
28.2 Any dispute arising under or in connection with this Agreement shall
be settled by binding arbitration in the City of San Diego under the existing
Commercial Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered may be entered in any court having jurisdiction
hereto. Either party may demand arbitration by written notice to the other party
and the American Arbitration Association, within a reasonable period of time
after the date on which the dispute arose, and in no event later than one year
after the claim arose. The arbitration shall be conducted by a panel of three
arbitrators, one of whom shall be selected by Enova and one of whom shall be
selected by Contractor and the third of whom shall be selected by the other two
arbitrators. Discovery may be conducted under the California Rules of Civil
Procedure. All discovery shall be completed by no later than the commencement of
the arbitration hearing, unless upon a showing of good cause, the arbitrators
extend or shorten that period. The arbitrators shall issue an award in writing,
which if requested by either party, shall include written findings of fact and
conclusions of law. The arbitration shall be final and binding regardless of
whether one of the parties fails or refuses to participate in the arbitration.
The arbitrators are empowered to hear all disputes between parties concerning
the subject matter of this Agreement, and the arbitrators may award monetary
damages, specific performance, injunctive relief, rescission, restitution, costs
of arbitration and attorneys' fees. The arbitrators shall have no authority to
award exemplary or punitive damages or to change, modify or alter any express
term, condition or provision of this Agreement, and to that extent the scope of
their authority is limited.
28.3 In any action in arbitration to enforce or interpret any of the terms
of this Agreement, the prevailing party shall be entitled to recover from the
unsuccessful party all costs, expenses, (including expert testimony) and
reasonable attorneys fees incurred therein by the prevailing party.
28.4 In no event shall the arbitration of any controversy or the
settlement thereof delay the performance of this Agreement.
29. NOTICES OR DEMANDS
Any notice, request, demand or other communication required or permitted
under this Agreement, shall be deemed to be properly given by the sender and
received by the addressee if made in writing and (1) upon receipt, if personally
delivered; (2) three days after deposit in the mails if mailed by certified or
registered air mail, post prepaid, with a return receipt requested; or (3) if
sent by facsimile with confirmation sent as provided in (2) above. All
correspondence shall reference the contract number shown on the cover page of
this document. Mailed notices and facsimile notices shall be addressed as
follows to:
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Enova: ENOVA CORPORATION
P. 0. ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: _______________
Contract No.______________
Contractor: TRANSNATIONAL PARTNERS, II
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
30. NONDISCLOSURE
30.1 LIMITATIONS ON USE AND DISCLOSURE. Contractor shall NOT use for any
purpose other than performing Services under this Agreement or divulge,
disclose, produce, publish, or permit access to, without the prior written
consent of Enova, any Confidential Information. Confidential Information
includes, without limitation, all information or materials prepared in
connection with the work performed under this or any related subsequent
agreement, designs, drawings, specifications, architecture, techniques, models,
data, documentation, source code, object code, diagrams, flow charts, research,
development, processes, procedures, know-how, manufacturing, development or
marketing techniques and materials, development or marketing timetables,
strategies and development plans, customer, supplier or personnel names and
other information related to customers, suppliers or personnel, pricing policies
and financial information, and other information of a similar nature, whether or
not reduced to writing or other tangible form, and any other trade secrets.
Confidential information does not include (1) information known to Contractor
prior to obtaining the same from Enova; (2) information in the public domain at
the time of disclosure by Contractor, or (3) information obtained by Contractor
from a third party who did not receive same, directly or indirectly, from Enova.
Contractor shall use the higher of the standard of care that Contractor uses to
preserve its own confidential information or a reasonable standard of care to
prevent unauthorized use or disclosure of such Confidential Information.
30.2 COURT OR ADMINISTRATIVE ORDER. Notwithstanding the provisions of
Section 30.1 above, Contractor and its employees, agents and representatives
("Representatives") may disclose any of the Confidential Information in the
event, but only to the extent, that, based upon advice of counsel, it is
required to do so by the disclosure requirements of any law, rule, or regulation
or any order, decree, subpoena or ruling or other similar process of any court,
governmental agency or governmental or regulatory authority. Prior to making or
permitting any of its Representatives to make such disclosure, Contractor shall
provide Enova with prompt written notice of any such requirement so that Enova
(with Contractor's assistance) may seek a protective order or other appropriate
remedy.
30.3 DOCUMENT RETENTION. At any time upon the request of Enova, Contractor
shall promptly deliver to Enova or destroy (with such destruction to be
certified to Enova) all documents (and all copies thereof, however stored)
furnished to or prepared by Contractor and its Representatives that contain
Confidential Information and all other documents in Contractors possession or
control that contain or that are based on or derived from Confidential
Information.
-13-
30.4 SURVIVAL. Notwithstanding the return or destruction of all or any
part of the Confidential Information, the confidentiality provisions set forth
in this agreement shall nevertheless remain in full force and effect with
respect to specific Confidential Information until the date that is four years
after the date of disclosure of such Confidential Information.
30.5 REMEDIES. The parties acknowledge that the Confidential Information
is valuable and unique, and that damages would be an inadequate remedy for
breach of this Agreement and the obligations of Contractor and the
Representatives are specifically enforceable. Accordingly, the parties agree
that in the event of a breach or threatened breach of this Agreement by
Contractor, Enova shall be entitled to seek an injunction preventing such
breach, without the necessity of proving damages or posting any bond. Any such
relief shall be in addition to, and not in lieu of, money damages or any other
legal or equitable remedy available to Enova.
31. TIME OF ESSENCE
Time is expressly agreed to be of the essence of this Agreement and each,
every and all of the terms, conditions and provisions herein.
32. VALIDITY
The invalidity, in whole or in part, of any provisions hereof shall NOT
affect the validity of any other provisions hereof.
33. SURVIVAL
The obligations imposed on Contractor and Contractor's employees by and
pursuant to Articles 8,14,15,17, 18, 19, 23 and 30 survive termination of this
Agreement.
34. NO ORAL MODIFICATIONS
No modification of any provisions of this Agreement shall be valid unless
in writing and signed by authorized representatives of the party against whom
such modification is sought to be enforced. The authorized representative of
Enova is not the Enova Representative and the Enova Representative is not the
authorized representative for Amendments. Amendments must be signed by persons
internally authorized to do so by Enova pursuant to its corporate policies.
35. CAPTIONS
The captions in this Agreement are for convenience and reference only and
the words contained therein shall in no way be held to explain, modify, amplify
or aid in the interpretation, construction or meaning of the provisions of this
Agreement.
36. COUNTERPARTS
This Agreement may be executed in counterparts which, taken together,
shall constitute a single instrument.
-14-
37. AUTHORITY
Each individual executing this Agreement on behalf of Enova and Contractor
represents and warrants that he or she is duly authorized to execute and deliver
this Agreement on behalf of said party and that this Agreement is binding upon
said party in accordance with its terms.
38. COMPLETE AGREEMENT
This Agreement constitutes the complete and entire Agreement between the
parties and supersedes any previous communications, representations or
agreements, whether oral or written, with respect to the subject matter hereof
There are no additions to, or deletions from, or changes in, any of the
provisions hereof, and no understandings, representations or agreements
concerning any of the same, which are NOT expressed herein, unless stated
below. THE PARTIES HEREBY AGREE THAT NO TRADE USAGE, PRIOR COURSE OF DEALING
OR COURSE OF PERFORMANCE UNDER THIS AGREEMENT SHALL BE A PART OF THIS
AGREEMENT OR SHALL BE USED IN THE INTERPRETATION OR CONSTRUCTION OF THIS
AGREEMENT. The following Schedules are attached hereto and incorporated
herein by this reference:
SCHEDULE A - TECHNICAL SERVICES SCOPE OF WORK
SCHEDULE B - COMPENSATION
SCHEDULE C - TASK COST ESTIMATES
SCHEDULE D - REQUIRED INSURANCE
SCHEDULE E - TERMINATION FEES
SCHEDULE F - GOVERNMENT CONTRACT CLAUSES
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TRANSNATIONAL PARTNERS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ENOVA CORPORATION
--------------------------------
Title: Managing Partner
----------------------------- By:
Date: 2/3/97 -------------------------------------
------------------------------ Title: Sr. V.P., CFO and Treasurer
----------------------------------
Date: 2/4/97
-----------------------------------
-15-
ENOVA CORPORATION
SCHEDULE A
TECHNICAL SERVICES SCOPE OF WORK
FOR
CENTER OF EXCELLENCE
1. Strategic Architecture Refinement and Maintenance
Transnational Partners II ("Contractor") and the Information Technology
Services Department of Enova ("ITS") have completed a preliminary
architecture specification for Enova's future information technology as
set forth in the ITS Future State document dated October, 1996 attached
hereto ("architecture specification"). This architecture specification is
being used as a blue print for building the software infrastructure that
is the heart of the Center of Excellence. This architecture specification,
like software itself, must be updated regularly to provide Enova with a
strategic direction that is relevant both to underlying business and
technology directions. Contractor shall provide Enova ongoing advice and
assistance in finalizing and updating, as necessary, the architecture
specification.
2. Center of Excellence Staff
2.1 Employees. The staff of the Center of Excellence will be composed of
internal Enova employees and external contract support staff
retained by Contractor. Enova business timelines make it imperative
that selected employees and contractors possess the necessary
technical skills and vision behind Center of Excellence projects.
Enova expects that it will hire through its normal employment hiring
channels any personnel that it will need to operate the Center of
Excellence and to support business line product development.
Contractor shall assist Enova in screening, conducting initial
interviews and recommending persons to fill any Enova employee staff
positions for the Center of Excellence. All Enova hiring decisions
shall be made by Enova.
2.2 Contract Personnel. Contractor, however, may retain contract support
staff (as opposed to system integrators and other vendors who may
provide services in connection with the projects) to fill positions
that are expected to be temporary or be limited to the duration of
the Contractor project to work under the direction of Contractor
and, subject to the conditions specified below, may hire individual
expert programmers to work on approved projects under the direction
of Contractor. Contractor shall be responsible for entering into an
appropriate confidentiality, work made for hire, and invention
assignment agreements with each of its contract support staff and
subcontractors in form and substance reasonably satisfactory to
Enova and Enova shall be named a third party beneficiary of those
agreements (such form to be prepared and approved prior to the
execution of this Agreement). Contractor shall responsible for
paying its contract support staff and any third party programmers or
consultants that it directly retains, including any out-of
A-1
pocket expenses or per diem allowances which are not reimbursable by
Enova.
Contractor acknowledges that it is not a general contractor under
this Agreement and that Enova will generally procure third party
software, including customized software, directly from vendors.
However, Contractor has represented to Enova that it has contacts
with individual expert computer programmers and integrators who work
on projects throughout the country on a consulting basis and who may
be willing to work as subcontractors on this project because of
Contractors involvement. Subject to (a) Enova's written approval of
(i) each specific project on which a subcontractor will work, (ii)
unless the specific project requires fewer than eight man hours or
unless otherwise waived in writing by the Enova Representative, the
functionality specifications and performance requirements for each
custom software or programming to be done by the subcontractor, and
(iii), unless the specific project requires fewer than eight man
hours, Enova and Contractor's agreement as to a fixed fee or time
and materials arrangement with a budget and milestone and
deliverables schedule for each such specific project and (b)
Contractor's adherence to the software development terms and
conditions set forth in this SCHEDULE - A, then Contractor may
retain such consultants as a subcontractor and ▇▇▇▇ Enova for the
services in accordance with the agreed upon fee arrangement and in
accordance with the payment provisions of this Agreement.
3. Enova Enterprise Infrastructure Development
3.1 GENERAL. Contractor shall provide lead direction, management and
system engineering in the development of the following components of
the Enova Enterprise Infrastructure as specified in the architecture
specification approved by Enova: (i) enterprise network
infrastructure, (ii) system security for the Center of Excellence,
(iii) data and application services infrastructure for the Center of
Excellence, (iv) world wide web infrastructure, (v) legacy systems
data access and interface operability, (vi) desktop environment for
the staff of the Center of Excellence, (vii) data repository for the
Center of Excellence's access to enterprise wide data from separate
existing and legacy systems, (viii) middleware layer of the
infrastructure for the Center of Excellence, (ix) integrated system
management environment for the maintenance and operation of an
enterprise computing environment and (ix) repository of application
software components and application software standards. Each of
these items will be developed in accordance with the approved
architecture specification.
3.2 REQUIREMENTS
3.2.1 Network Infrastructure.
(a) prepare with Enova's input and submit for Enova's
written approval a detailed design specification for
each of the five networks specified in the architecture
specification (I.E. firewalls
A-2
and demilitarized zone network, public services network,
internal services network, business unit network and
internal backbone network), a detailed design
specification for the interconnection of these networks,
and a detailed functionality specifications and
performance requirements for any custom software
included within any of the network designs or the
interconnection of the networks;
(b) recommend to Enova the procurement of specific hardware
and software components for the networks, identify
vendors, solicit bids and proposals and provide
recommendations to Enova on vendor selection for the
network hardware and software components and for
pre-installation and installation related services;
(c) assist Enova in procuring through Enovas normal
procurement channels any capital assets (regardless of
price), technical services, hardware and software
warranties and maintenance contracts and any services
from each vendor whose total ▇▇▇▇ for goods and services
on one or more purchase orders may exceed a total of
$500,000 and procure on Enovas behalf any other
services required for pre-installation or installation
of the network;
(d) supervise and manage projects relating to the
pre-installation preparation of the facility and
installation of the networks and the integration of the
networks;
(e) conduct quality testing of each of the installed
networks and the integration of the networks and certify
quality compliance; and
(g) provide knowledge transfer and on-the-job training to
Enova personnel through work performed jointly with
Enova employees and contractors.
3.2.2 System Security
(a) subject to Enova's input and approval, develop an
integrated Enova enterprise system for user
identification and system access privileges and other
security management;
(b) subject to Enova's input and approval, develop and or
assist Enova in procuring through its normal procurement
channels technology and materials to permit digital
signatures and certificates issued by agencies approved
by Enova for use in business line products;
(c) identify and recommend to Enova public-key encryption
technology to ensure highly secure storage and exchange
of sensitive information and assist Enova in procuring
such technology through its normal procurement channels
(d) provide quality testing of the security systems and
certify quality compliance; and
(e) provide knowledge transfer and on-the-job training to
Enova personnel through work performed jointly with
Enova employees and contractors.
A-3
3.2.3 Data & Application Services Infrastructure
(a) prepare with Enova's input and submit for Enova's
written approval a detailed design specification for the
data and application services infrastructure specified
in the architecture specification and a detailed
functionality specifications and performance
requirements for any custom software included within the
data and applications services infrastructure;
(b) recommend to Enova middleware, database, data repository
and software development tools and assist Enova in
procuring such tools through its normal procurement
channels;
(c) recommend specific middleware products, data warehouse
products and data replication products based upon
Enova's determination of its business line application
requirements;
(d) identify vendors, prepare requests for proposal, solicit
bids and proposals and provide recommendations to Enova
on vendor selection for such selected middleware
products, data warehouse products and data replication
products and for any installation related services;
(e) assist Enova in procuring through its normal procurement
channels any capital assets (regardless of price),
technical services, hardware and software warranties and
maintenance contracts and any services from each vendor
whose total ▇▇▇▇ for goods and services on one or more
purchase orders may exceed a total of $500,000 and
procure on Enova's behalf any other services required
for pre-installation or installation of such products;
(f) supervise and manage the development of and installation
of such products;
(g) provide quality testing of the installed products and
certify compliance; and
(h) provide knowledge transfer and on-the-job training to
Enova personnel through work performed jointly with
Enova employees and contractors.
3.2.4 Web Infrastructure
(a) prepare and submit for Enova's approval a detailed
design specification for a commerce-capable Web site
that meets the requirements of OneStep and EnergyTrader.
(b) build Web site and Web enabled applications to utilize
fully the Web as a delivery channel for OneStep and
EnergyTrader;
(c) identify and assist Enova in procuring through its
normal procurement channels customized back-end database
and application services integration and related
warranty and maintenance contracts;
(d) provide quality testing of front-end and back-end of Web
site, including commerce security aspects and certify
compliance; and
A-4
(e) provide knowledge transfer and on-the-job training to
Enova personnel through work performed jointly with
Enova employees and contractors.
3.2.5 Desktop Environment
(a) assist Enova in selecting software components for
desktop;
(b) integrate selected Web browser with enterprise mail,
office software and proprietary Enova software systems;
(c) assist Enova in procuring licenses, warranties and
maintenance contracts for software; and
(d) provide knowledge transfer and on-the-job training to
Enova personnel through work performed jointly with
Enova employees and contractors.
3.2.6 Data Repository
(a) manage specified projects approved by Enova to create
tools and systems needed to link general ledger data
with other business lines' financial systems in
accordance with the architecture specification;
(b) manage specified project approved by Enova to create
link between corporate and affiliate financial systems
in accordance with the architecture specification;
(c) build and manage central repository of business objects
for reuse and redeployment as specified in the
architecture specification; and
(d) provide knowledge transfer and on-the-job training to
Enova personnel through work performed jointly with
Enova employees and contractors.
4. BUSINESS LINE DEVELOPMENT SUPPORT
Contractor will provide architecture design services for business line
development activities of the Center of Excellence. The purpose of this
service is to ensure that business line development projects are in
conformance with Center of Excellence design and development principles.
As part of this activity, Contractor will:
4.1 Educate project staff in Center of Excellence principles and
underlying technology;
4.2 Assist Enova in the selection of project development tools;
4.3 Assist Enova in the development of interoperability bridges between
business line components and to the underlying infrastructure;
4.4 Participate in the project design and review process;
4.5 Provide, at Enova's option, project management and development
assistance; and
4.6 Interface with and obtain required sign-offs from Enova business
lines for any project for such business line.
A-5
5. PROJECT SYSTEM INTEGRATOR SELECTION
Contractor may provide system engineering and technical assistance for
large-scale, large cost projects not directly related to the core Enova
infrastructure development or specifically created to support new
lines-of-business requirements. These activities beyond that of system
integration, toolset and implementation guideline assistance are outside
the scope of this Schedule A and will be covered under a separate scope of
work that when executed by both parties shall become part of this
Agreement.
8. QUARTERLY DELIVERABLES.
Contractor will commence work at an interim site before the established
system network topologies and physical assets are transferred to the
"permanent" Center of Excellence. Contractor will accomplish the following
core corporate infrastructure deliverables within the following timelines,
subject to any change in the deliverables or timeline agreed to in
writing by the Enova Representative and the Contractors Representative to
meet new of changed Center of Excellence requirements. Each of these
deliverables is subject to the requirements set forth in Section 3 of this
SCHEDULE -A:
Quarter 1
---------
1. Recommend assist in procurement, develop software components and
install basic network infrastructure
2. Recommend and install basic infrastructure middleware, software
development and management software components
3. Establish Center of Excellence recruiting program (in coordination
with Enova HR and ITS)
4. Create ITS acquisition "SWAT" team
5. Establish Center of Excellence teams for all infrastructure and
business unit development projects (MINT, OneStep, EnergyTrader);
establish roles and timelines for each team
6. Recommend key initial Enova and contractor personnel
7. Develop Request for Proposal and receive initial bids for Center of
Excellence data repository
Quarter 2
---------
1. Commence design and development of components for assigned business
line and infrastructure development for the Center of Excellence
projects
2. Recommend and install infrastructure middleware, software
development and management software components to extend basic
infrastructure
3. Recommend and install initial set of data repository tools
4. Commence development of interfaces that bridge selected Center of
Excellence infrastructure software components
5. Commence development of Enova interface data repository
6. Develop component specification guidelines for Center of Excellence
software development activities
A-6
Quarter 3
---------
1. Recommendation and development of commerce-capable Web
infrastructure
2. Continued development of interface data repository and middleware
component architecture
3. Prototype development of Center of Excellence business unit systems
(E.G., MINT, OneStep, EnergyTrader)
4. Commence prototype development of data warehouse application for one
or more Center of Excellence business unit project
5. Specify interface and gateway implementation guidelines for
achieving interoperability between the Center of Excellence
component architecture and legacy systems
6. Initiate development of gateway between MINT project software and
the current SDG&E Cost General software system
Quarter 4
1. Support deployment of MINT general ledger and other system
components
2. Support deployment of interoperability bridge between MINT and
corporate financial systems
3. Testing and refinement of Total Energy Services (E.G., EnergyTrader
and OneStep projects) in support of achieving basic operational
capability
4. Commence development of integrated system security components
5. Prototype development of MINT/corporate financial systems
interoperability interface to support financial interoperability
associated with additional Enova acquisitions
6. Commence population of Center of Excellence application component
and data repositories
Quarter 5
---------
1. Commence work on 2nd phase of data interface repository and
refinement of basic Center of Excellence infrastructure support
services
2. Development of distributed production support guidelines for Center
of Excellence-based projects
3. Begin development of workflow management components for distribution
of incubated Center of Excellence projects requiring external
support interfaces
Quarters 6-8
------------
1. Commence development of integrated system management capability for
all Center of Excellence and application components
2. Continued support of Center of Excellence business line development
project deployments and system refinement
3. Creation and deployment of data warehouse technology as needed
4. Deployment of workflow management capability
5. Extend middleware support services
6. Extend Web services
7. Extend data and application repository services
A-7
7. CENTER OF EXCELLENCE ADMINISTRATION
Contractor will provide the following Center of Excellence services:
7.1 Development and maintenance of the Center of Excellence master
schedule;
7.2 Assistance in vendor negotiation and contract development;
7.3 Coordination and top-level administration of Center of Excellence
projects;
7.4 Development of progress reports and briefings for Enova management;
and
7.5 Prepare monthly reports on the actual project costs versus the
budgeted project costs during the preceding month and to date, and a
projection of costs during the current month.
8. ADDITIONAL DELIVERABLES
In addition to the services, design specifications, software
specifications and vendor recommendations and documentation outlined
above, Contractor will provide the following deliverables:
D1 MONTHLY PROGRESS REPORT
Contractor will submit a monthly progress report documenting all Center of
Excellence activities. This report will include an overview of Center of
Excellence activities including:
- major project accomplishments
- problems and issues
- schedule progress
- budget summary
D2 INFORMATION TECHNOLOGY SERVICES STRATEGIC ARCHITECTURE DOCUMENT
Contractor will publish the Enova's Information Technology Services
strategic architecture report no less than every six months. The report
will further document and outline Enova's strategic information direction
based on the lessons learned implementing Center of Excellence projects
and industry technical advances.
E SOFTWARE DEVELOPMENT TERMS AND CONDITIONS
Any software programming supplied by Contractor or its subcontractors
shall be subject the following terms and conditions:
E.1 Contractor shall perform the agreed upon work and produce the
deliverables set forth in writing signed by the Enova representative
and the Contractor representative which shall constitute part of
this SCHEDULE-A, by the deliverable dates set forth therein. Except
as expressly provided in Section 2.2 above, prior to commencing work
on any deliverable, Contractor shall prepare and obtain Enova's
approval to functional specifications and performance requirements
for such deliverable and shall prepare a fixed fee or budgeted time
and materials proposal for the specified deliverables. Neither
Contractor nor Subcontractor shall commence any work on any
A-8
deliverable unless the Enova Representative has approved in writing
the specifications and compensation arrangement for the project.
E.2 Failure to deliver a deliverable by specified delivery dates, except
where such failure to due to a force majeure event specified in
Section 7 of the Agreement or due to a failure by Enova or a
contractor of Enova to perform or deliver a prerequisite service or
product, shall entitle Enova to terminate Contractor's right to
provide such deliverable under the Agreement. If Contractor or any
subcontractor is responsible for a late deliverable and if such
deliverable is being done on a time and materials basis, Contractor
shall ▇▇▇▇ Enova for any time incurred for the deliverable after the
due date for delivery at 25% of the applicable hourly rates.
E.3 All work shall be performed in skillful, competent and professional
manner and all deliverables shall meet in all material respects the
approved functionality specifications and performance requirements
for such deliverable. All software deliverables shall comply with
Enova's standards for dates. Contractor, however, shall not be
responsible for any year 2000 compliance issues in legacy software
systems.
E.4 Each deliverable shall include all specifications, source code and
executable object code and all development tools, compilers and
materials created for or used in the development of such software,
including any third party code imbedded in the deliverables. All
source code shall be commented to the extent reasonably necessary to
enable Enova to maintain and modify the deliverable using persons
skilled in the programming language involved. Contractor shall
provide to Enova at least one copy of documentation relating to the
operation of the deliverables concurrent with the delivery of the
deliverables.
E.5 Contractors shall certify to Enova that each deliverable was
originally created by Contractor or its subcontractor and that work
constitutes a work made for hire as defined in the federal Copyright
Act of 1976 and is owned by Enova. Contractor shall also certify
that it has no knowledge of any liens or encumbrances relating to
each deliverable.
E.6 Unless the project requires fewer than eight man hours or unless
Enova otherwise waives the term in writing, Enova and Contractor
shall agree in writing upon an acceptance test procedure for the
alpha, beta and final versions of each deliverable. During the
agreed upon testing period for each version, Contractor and Enova
shall jointly test the deliverable, in accordance with the agreed
upon procedure, to verify if it meets the functionality
specifications and performance requirements. Enova shall inform
Contractor of any errors or deficiencies discovered during any of
the test periods. Contractor shall promptly proceed to correct any
errors or deficiencies.
E.7 Contractor warrants that for a period of six months following
Enova's written acceptance of the final version of a deliverable,
any component of any such deliverable which has been provided by
Contractor or any of its subcontractors will perform substantially
in accordance with the functional
A-9
specifications and performance requirements for such deliverable
when properly installed and operated on the computer system for
which the deliverable was designed; provided however, that such
warranty by Contractor shall not extend to any component of any such
deliverable which has been provided by Enova or any contractor of
Enova. In addition, Contractor warrants that no deliverable will
contain any "back door," "time bomb," "Trojan horse," "worm," "drop
dead device", or "virus" as these terms are commonly used in the
computer software industry), or other software routines or hardware
components designed to permit unauthorized access, to disable or
erase software, hardware, or data in a manner unauthorized by, and
contrary to the intentions of, the user, or to perform any other
similar unauthorized destructive type of functions. Contractor shall
pass through to Enova any third party warranties on any software
components
E.8 Contractor does not warrant that the operation of the software
deliverables will be error free or uninterrupted or that all defects
in the software deliverables will be corrected; provided, however,
that upon Enova's request, Contractor shall promptly correct
significant defects or provide replacement services for any
Significant Non-Conforming Services. Significant Non-conforming
Services is defined as the failure of a deliverable product to
perform substantially any of the functions specified in the
functional specifications for such product or to meet substantially
the performance requirements for such product. Contractor shall use
best efforts to have any Significant Non-conforming Services or
significant defects that cause disruption of critical business
operations of the Center of Excellence corrected within 48 hours of
the first report of such Significant Non-conforming Service or
significant defect.
E.9 The use of any deliverable by Enova shall not violate or infringe
the rights of any third party.
E.10 Each subcontractor shall maintain the same type of insurance in the
same amounts as required of Contractor unless Enova waives in
writing this requirement as to a particular subcontractor.
E.11 The other terms and conditions of the Agreement shall apply,
including, without limitation, Sections 8, 14, 15, 18, 19 and 22.
E.12 No waiver of any term or condition for software deliverables shall
constitute a waiver as to all such terms or conditions or as to such
term or condition as applied to any other deliverable. The foregoing
terms and conditions may not be modified by course of dealing,
course of performance or trade usage and may only be modified in
writing signed by both parties.
A-10
ENOVA CORPORATION
SCHEDULE B
COMPENSATION
Further definition of Article 12 - COMPENSATION, is as follows:
This is a time and materials contract which shall be subject to budgets
for each deliverable to be agreed upon by the parties. Time shall be billed in
hour increments and shall be billed at the following rates:
Job Classification Billing Rate
------------------ ------------
President [...***...]
Senior Partner [...***...]
Senior Technical Consultant [...***...]
Technical Consultant [...***...]
Associate Technical Consultant [...***...]
Research Support [...***...]
Administrative Support [...***...]
Subject to the Agreement, including the approval requirements, to the
extent that Contractor retains individual expert programmers as
subcontractors, Contractor shall ▇▇▇▇ Enova for such time on a cost plus
[...***...] basis, with the cost not to exceed the hourly billing rates
set forth below. The ▇▇▇▇-up is subject to the following limitations:
(i) the ▇▇▇▇-up will only apply to the first [...***...] hours of a single
subcontractor's time and (ii) the total ▇▇▇▇-ups during the term of the
Agreement shall not exceed [...***...]. These limitations are not
limitations on usage of subcontractors and do not constitute an approval
to use subcontractors up to such limitations. Consultant's invoices for
such work shall include the information required by the Agreement and
any other information reasonably required by Enova to verify the actual
cost incurred for this work. These invoices shall be subject to the audit
rights set forth in the Agreement:
Subcontractor Classification Billing Rate
---------------------------- ------------
Object Oriented Architects and Designers [...***...]
Network/Web Designers and Developers [...***...]
Distributed Infrastructure Developers [...***...]
Collaborative Component Developers [...***...]
Senior Expert Designers and Engineers [...***...]
*CONFIDENTIAL TREATMENT REQUESTED
B-1
ENOVA CORPORATION
SCHEDULE C
TASK COSTS ESTIMATES
This is a time and materials contract with no minimum guaranteed number of hours
required during the Agreement:
Contractor has estimated that the Services required by SCHEDULE A - STATEMENT OF
WORK will require the following level of effort during 24 months of performance:
Contractor Job Classification Estimated Number of Hours during each
----------------------------- -------------------------------------
12 month period
---------------
General Manager [...***...]
Senior Partner [...***...]
Senior Technical Consultant [...***...]
Technical Consultant [...***...]
Associate Technical Consultant [...***...]
Research Support [...***...]
Administrative Support [...***...]
---------------
Total Hours Per 12 Months [...***...]
Estimated Cost of Services Per Year [...***...]
Estimated Total Cost of Services [...***...]
Contractor has estimated that the additional information technology consulting
and expertise that may be requested pursuant to Section 1 (E) of the Agreement
will require the following level of effort during 24 months of performance:
Contractor Job Classification Estimated Number of Hours during each
----------------------------- -------------------------------------
12 month period
---------------
President [...***...]
Senior Partner [...***...]
Senior Technical Consultant [...***...]
Technical Consultant [...***...]
Associate Technical Consultant [...***...]
Research Support [...***...]
Administrative Support [...***...]
---------------
Total Hours Per 12 Months [...***...]
Estimated Cost of Services per Year [...***...]
Estimated Total Cost of Services [...***...]
*CONFIDENTIAL TREATMENT REQUESTED
C-1
NOT TO EXCEED PROJECT
PROJECT BUDGET FOR SERVICES
DURING EACH 12 MONTH
PERIOD [...***...]
TOTAL NOT TO EXCEED PROJECT
BUDGET FOR SERVICES [...***...]
*CONFIDENTIAL TREATMENT REQUESTED
C-2
ENOVA CORPORATION
SCHEDULE D
REQUIRED INSURANCE
Workers' Compensation Insurance
Carrier Name: _____________________________
Policy No.: __________________________
Endorsement No.: _______________________________
Coverage: _______________________________
Deductible: _______________________________
Additional Insured/Cancellation Provisions: _________________________________
Commercial General Liability Insurance
Carrier Name: ITT Hartford
Policy No.: 72SBAGC 7862
Endorsement No.: _________________________________
Coverage: Office Package including Business Liability
Deductible: 0 on liability_________________________________
Additional Insured/Cancellation Provisions: 30 Days notice to Enova Corporation
Professional Liability Insurance
Carrier Name: ______________________________
Policy No.: ___________________________
Endorsement No.: ______________________________
Coverage: Claims Made: $1,000,000
Deductible: ________________________________
Additional Insured/Cancellation Provisions: _________________________________
Other Insurance
Carrier Name: ______________________________
Policy No.: ___________________________
Endorsement No.: _______________________________
Coverage: ________________________________
Deductible: ________________________________
Additional Insured/Cancellation Provisions: _________________________________
D-1
ENOVA CORPORATION
SCHEDULE E
TERMINATION FEES
If Enova elects to terminate this Agreement for its sole convenience at any time
during the first four quarters of the Agreement, then, in addition to paying
Contractor any accrued and unpaid fees, Enova shall pay Contractor the following
termination fee:
--------------------------------------------------------------------------------
CONTRACT QUARTER IN WHICH TERMINATION OCCURS TERMINATION FEE
--------------------------------------------------------------------------------
First Quarter ending March 31, 1997 [...***...]
--------------------------------------------------------------------------------
Second Quarter ending June 30, 1997 [...***...]
--------------------------------------------------------------------------------
Third Quarter ending September 30, 1997 [...***...]
--------------------------------------------------------------------------------
Fourth Quarter ending December 31, 1997 [...***...]
--------------------------------------------------------------------------------
Fifth Quarter ending March 31, 1998 and any [...***...]
subsequent quarters
--------------------------------------------------------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
E-1
ENOVA CORPORATION
SCHEDULE F
GOVERNMENT CONTRACT CLAUSES
52.202-1 Definitions (APR 1984)
52.203-1 Officials Not to Benefit (APR 1984)
52.203-3 Gratuities (APR 1984)
52.203-5 Covenant Against Contingent Fees (APR 1984)
52.203-7 Anti-Kickback Procedures (SEP 1988)
52.208-3 Conflicts (APR 1984)
52.219-8 Utilization of Small Business Concerns and Small Disadvantaged
Business Concerns (JUN 1985)
52.219-9 Small Business and Small Disadvantaged Business Subcontracting
Plan (APR 1984)
52.219-13 Utilization of Women-Owned Small Businesses (AUG 1986)
52.219-16 Liquidated Damages-Small Business Subcontracting Plan (AUG 1989)
52.220-3 Utilization of Labor Surplus Area Concerns (APR 1984)
52.222-3 Convict Labor (APR 1984)
52.222-4 Contract Work Hours and Safety Standards Act-Overtime
Compensation-General (MAR 1986)
52.222-26 Equal Opportunity (APR 1984)
52.222-35 Affirmative Action for Special Disabled and Vietnam Era Veterans
(APR 1984)
52.222-36 Affirmative Action for Handicapped Workers (APR 1984)
52.223-2 Clean Air and Water (APR 1984)
52.223-6 Drug-Free Workplace (MAR 1989)
52.237-2 Protection of Government Buildings, Equipment and Vegetation
(APR 1984)
52.232-17 Interest (APR 1984)
52.232-23 Assignment of Claims (JAN 1986)
52.233-1 Disputes (APR 1984)
52.233-70 Disputes (Utility Contracts) (APR 1984)
F-1
FIRST AMENDMENT TO
TECHNICAL SERVICES AGREEMENT
This First Amendment to the Technical Services Agreement ("Amendment") amends
the Technical Services Agreement between ENOVA CORPORATION, a Delaware
corporation ("Enova") and TRANSNATIONAL PARTNERS, II, a California limited
liability company ("Contractor") dated January 1, 1997 ("Agreement"), and is
made effective as of October 1, 1997.
The Parties hereby agree as follows:
1. SCOPE OF AMENDMENT
This Amendment amends SCHEDULE A - TECHNICAL SERVICES SCOPE OF WORK by the
addition of additional Services and amends SCHEDULE C- TASK COST ESTIMATES.
Except as specifically amended, the Agreement remains in full force and effect
without any amendments or modifications, including, without limitation, any
modifications arising out of course of dealing, course of performance or trade
usage. Unless otherwise defined in this Amendment, all words with the initial
letter capitalized have the same definition as in the Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment as of January
16, 1998 to be effective as of October 1, 1997.
TRANSNATIONAL PARTNERS II ENOVA CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ 1/16/98
------------------------------- --------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Partner Title: Vice President and Chief
Information Technology Officer
ENOVA CORPORATION
FIRST AMENDMENT TO SCHEDULE A
TECHNICAL SERVICES SCOPE OF WORK
FOR
CENTER OF EXCELLENCE
9. CITO OPERATIONS AND SUPPORT
The Contractor shall assist the Enova Office of the Chief Information Technology
Officer ("CITO") to develop and implement information technology-related
policies and procedures for both the Center of Excellence and the new entity to
be created through the merger of Enova Corporation and Pacific Enterprises
("NewCo"). To fulfill this role, the Contractor will participate in relevant
CITO staff meetings and, to the extent requested by the CITO to create and
present position papers and other presentations. Also, to the extent requested
by the CITO, the Contractor shall provide business and technical expertise to
the CITO to identify and select strategic partners and technology.
10. NEW PROJECT DEVELOPMENT SUPPORT
10.1 GENERAL. Section 4 of the SCHEDULE A did not specify in detail a specific
process by through which new business line development or other
application program projects could be initiated. Subject to Enova
approval, the Contractor will develop a procedure for the initiation of
new projects in the ▇▇▇, including the provision of senior-level technical
and business process support for the projects. In addition to the items
specified in Section 4, as part of this activity, Contractor will perform
the Services specified in Section 10.2.
10.2 REQUIREMENTS
a) Work with Enova and technical project managers for the business
initiating the project to develop project requirement
specifications, project plans and budgets.
b) Develop top-level operational concepts for building and deploying
new business support systems, subject to Enova's approval.
c) Conduct internal rapid implementation plan (RIP) workshops utilizing
the ▇▇▇ design center.
d) Assist Enova and the technical project managers for the business
initiating the project in the selection of project implementation
support partners.
e) Assist Enova and the technical support managers for the business
initiating the project in the selection of third party software
development tools and applications
f) Assist NewCo project managers to understand and access the resources
and services available within the ▇▇▇.
11. ▇▇▇ DESIGN CENTER DEVELOPMENT
11.1 GENERAL. Successful utilization of software rapid application development
(RAD) processes requires the development and usage of a formalized project
implementation methodology. In addition, the methodology must be supported
by an adequate physical infrastructure that facilitates, rather than
hinders, the RAD process. Finally, trained facilitators are required to
assist project teams in the development of requirements and design
specifications that are adequate to meet the needs of software
implementation teams.
The Contractor will develop, with the approval of Enova, a formal RAD
process for application software development for the Design Center.
Subject to Enova's budgetary considerations and approvals, this Design
Center generally will contain the necessary physical, technical, and
procedural infrastructure necessary to incubate and deliver application
software projects in adherence with RAD project management and delivery
principles. The Design Center will be located at Enova's Sorrento Mesa
facility.
11.2 REQUIREMENTS
a) Develop RAD process templates for all project phases (requirements,
design, implementation, stabilization, and production). These
project templates will serve as a shared design and implementation
template to be used across all NewCo projects.
b) Design a prototype Design Center. The design for the prototype
Design Center will contain the necessary team rooms, break out work
areas, implementation, support areas, and technical infrastructure
(e.g., audio visual equipment) needed to support the RAD process.
The design shall be subject to the CITO's input and prior approval
and any tenant improvements, fixtures, furnishings, and equipment
shall be procured through Enova's normal procurement channels and be
subject to Enova's normal budget and approval processes.
c) Identify and recommend to Enova the software support systems needed
to manage the RAD process, assist Enova in procuring through its
normal procurement channels such software support systems, and
integrate the software support systems. Anticipated support systems
include design software systems (e.g., Rational Rose), project
management software, and project action item and tracking databases.
d) Develop process manuals and training curriculum to support the
Design Center. This process manuals and training materials will be
used to mentor new staff in the ▇▇▇ RAD development methodology.
These manuals and training information will be tailored to support
the specific employment of ▇▇▇ design support systems and software
implementation tools.
12. BUSINESS OBJECT DEVELOPMENT FRAMEWORK
12.1 GENERAL. The focus of this task is to create the necessary framework for
expressing fine-grain business objects and components. The development of
the business object framework complements the current ▇▇▇ enterprise
framework task. In particular, the fine-grain business objects created
utilizing the framework developed in this task will implement the behavior
and processing of enterprise service objects. These fine-grain business
objects are tailored to utilize specific implementation languages (i.e.,
Java) and are instantiated as process local objects. The Contractor will
create a framework so that it is completely compatible and operational
with the existing Enova ▇▇▇ enterprise framework. The framework will be an
integration of existing enterprise frameworks (e.g., Claremont Technology
Group's Business Solution Framework) and technology platforms (e.g., Sun's
Java Beans) rather than a proprietary framework developed from scratch.
12.2 REQUIREMENTS
a) Evaluate existing candidate technical solutions and products as a
basis for creating the NewCo business object framework
b) Subject to Enova's input and approval, develop a requirement
specification for the overall business object framework. A part of
this requirement specification will be to determine the
implementation languages and environments that must be addressed by
the business object framework.
c) Subject to Enova's input and approval, develop design specification
for the business object framework. Included in the design
specification will be plans for integrating the
A-2
business object framework with the existing ▇▇▇ enterprise component
model and services.
d) Implement the business object framework. An aspect of this task will
be to coordinate the delivery and integration of software developed
by contracted third parties and product suppliers into the business
object framework.
e) Iterate the development of the framework to meet new requirements
resulting from the utilization of the business object framework by
NewCo application project teams.
13. APPLICATION PROJECT SUPPORT
13.1 GENERAL. Upon the request of Enova, the Contractor shall provide
architectural and programming assistance to application development
efforts in NewCo that utilize the ▇▇▇ infrastructure and services. The
Contractors role shall be limited to providing the technical integration
and object modeling skills to utilize the ▇▇▇ infrastructure effectively,
rather than providing general application development staff. As of the
date of this Amendment, the projects covered by this task are Pacific
Enterprises' Phoenix and Energy Pacific's Energy Delivery Management (EDM)
system. Any future projects will be added through a new Scope of Work or
other amendment to the Agreement.
13.2 REQUIREMENTS
a) Provide projects with ▇▇▇ enterprise modeling and technical
implementation support.
b) Assist the project in implementing enterprise interfaces to other
NewCo systems utilizing the ▇▇▇ integration framework.
c) Assist the project team in developing business object services
utilizing the ▇▇▇ framework.
d) Assist the project management team in negotiations with the
implementation partners and vendors.
e) Assist project managers to ensure that contracted delivery partners
are meeting overall NewCo objectives.
14. NEWCO SYSTEM CONSOLIDATION
14.1 GENERAL. The information technology ("IT") merger team is in the planning
phase for consolidating the current set of applications fielded by both
Enova and Pacific Enterprises into a single, unified suite. The Contractor
will provide the system consolidation team with both technical
infrastructure and enterprise object modeling expertise to plan and
implement the integration of the NewCo application suite. The Contractor
expertise will be focused on leveraging the existing ▇▇▇ infrastructure to
create an integration solution based on sharable business objects rather
on a point solution which link specific applications using pair-wise
interfaces.
14.2 REQUIREMENTS
a) Work with the IT system consolidation program manager to develop
application consolidation strategies.
b) Assist the system consolidation program in selecting application
integration technology. A part of this selection process will be to
assess the suitability of the existing and planned ▇▇▇ enterprise
infrastructure to support application consolidation.
c) Subject to system consolidation team input and approval, design and
develop standard interface solutions that can be shared across
application interface development teams. It is expected that this
activity will result in the creation of a set of foundation
interface classes and techniques that will form the basis of the
general integration solution.
A-3
Standard interface forms will consider real-time, batch, mainframe,
and client-server interfaces in addition to any relevant permutation
of these factors.
d) Assist the system consolidation team in expressing the consolidate
application suite as business objects.
e) Assist the application consolidation team in developing concrete
interfaces that link existing application processing and interface
requirements to the common enterprise object model.
15. OTHER PROJECTS
a) To the extent that Enova or Pacific Enterprises' requests that the
Contractor work on other significant projects that are not covered
by the existing scope of services, including, without limitation,
due diligence for possible acquisitions, the scope of Services and
the budget for such Services shall be set worth in either a new
Scope of Work or an amendment to this Agreement.
A-4
ENOVA CORPORATION
FIRST AMENDMENT TO SCHEDULE C
TASK COST ESTIMATES
This is a time and materials contract with no minimum guaranteed number of
hours required during the Agreement. As of November 30, 1997, Contractor has
invoiced Enova Service with a total cost of [...***...] under the Agreement,
including for Services not covered by Schedule A prior to its Amendment and
other Services to be covered under separate Scopes of Work.
Contractor has estimated that the following level of work will be required to
support the additional activity outlined in the First Amendment to Schedule A,
Technical Services Cope of Work for Center of Excellence during the period
ending December 31, 1998.
Estimated Number of Hours
Contractor Job Classification during remaining contract period
----------------------------- --------------------------------
Senior Partner [...***...]
Partner [...***...]
Senior Technical Consultant [...***...]
Technical Consultant [...***...]
Associate Technical Consultant [...***...]
Research Support [...***...]
Administrative Support [...***...]
Total Hours [...***...]
Estimated Total Cost of Amended Services [...***...]
Previous Estimated Total Cost of Services [...***...]
Amended Total Not to Exceed [...***...]
Project Budget for Services for the entire
term of the Agreement
*CONFIDENTIAL TREATMENT REQUESTED
C-1
ENOVA CORPORATION
SECOND AMENDMENT TO
TECHNICAL SERVICES AGREEMENT
FOR CENTER OF EXCELLENCE
This Second Amendment to the Technical Services Agreement ("Amendment") amends
the Technical Services Agreement between ENOVA CORPORATION, a Delaware
corporation ("Enova") and TRANSNATIONAL PARTNERS, II, a California limited
liability company ("Contractor") dated January 1, 1997 ("Agreement"), and is
made effective as of March 1, 1998
The Parties hereby agree as follows:
1. SCOPE OF AMENDMENT
This Amendment amends SCHEDULE A - TECHNICAL SERVICES SCOPE OF WORK and
SCHEDULE C- TASK COST ESTIMATES to include work expected to continue through
1999. Except as specifically amended, the Agreement remains in full force and
effect without any amendments or modifications, including, without limitation,
any modifications arising out of course of dealing, course of performance or
trade usage. Unless otherwise defined in this Amendment, all words with the
initial letter capitalized have the same definition as in the Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
March__, 1998 to be effective as of March 1, 1997
TRANSNATIONAL PARTNERS II ENOVA CORPORATION
By: /s/ [ILLEGIBLE] By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------- ---------------------------------
Title: Managing Partner ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Title: Senior Vice President
and Financial Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Chief
Information Technology Officer
ENOVA CORPORATION
SECOND AMENDMENT TO SCHEDULE A
TECHNICAL SERVICES SCOPE OF WORK
16. CENTER OF EXCELLENCE PERFORMANCE UPDATES AND ENHANCEMENTS
The first phase of the Enova Center of Excellence (▇▇▇) has resulted in
the creation of a set of software components, design processes and
services. These components, processes, and services are outlined in
contract Schedule A and the First Amendment to Schedule A. The purpose of
this task is to extend the scope of work defined in the First Amendment to
Schedule A to include services to be performed during 1999. The Contractor
will provide continued support for ▇▇▇ developed software frameworks and
processes. The Contractor will continue to provide strategic consulting
services to Enova over the extended contract performance period.
ENOVA CORPORATION
SECOND AMENDMENT TO SCHEDULE C
TASK COST ESTIMATES
This is a time and materials contract with no minimum guaranteed number of hours
required during the Agreement. As of February 28, 1998, Contractor has invoiced
Enova Corporation with a total cost of $[...***...] under the base Agreement and
first Amendment to Schedule A and Schedule C.
The Contractor has estimated that the following level of work will be required
to support the additional activity outlined in the Second Amendment to Schedule
A, Technical Services Scope of Work for Center of Excellence through the period
ending December 31, 1999.
Estimated Number
Contractor Job Classification Of Hours during 1999
----------------------------- --------------------
Senior Partner [...***...]
Partner [...***...]
Senior Technical Consultant [...***...]
Technical Consultant [...***...]
Associate Technical Consultant [...***...]
Research Support [...***...]
Administrative Support [...***...]
Total Hours Contract Amendment 2 [...***...]
Total Cost Contract Amendment 2 [...***...]
Previous Total Cost of Services [...***...]
Amended Total Not to Exceed Cost [...***...]
*CONFIDENTIAL TREATMENT REQUESTED
▇-▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇-▇▇▇▇ BUSINESS PLAN
(000)
CAPITAL REQUIREMENTS
--------------------
1997 1998
---- ----
EC1000 [...***...] [...***...] MINT PROJECT:
Creation of a General Ledger system to
facilitate financial information base of
consolidated reporting
EC1001 [...***...] [...***...] ENERGY TRADER
The creation of Energy Trader services
for extensive and reliable network
connections to energy markets
EC1002 [...***...] [...***...] SERVICE BUREAU
Provide integrated billing and energy
analysis solutions for commercial
customers.
EC1003 [...***...] [...***...] ENTERPRISE INFRASTRUCTURE
Provide necessary software and hardware
infrastructure requirements to support
any application functionality.
EC1004 [...***...] [...***...] NEW PROJECTS
Provide the necessary project support for
the Joint Venture and Enova, and
facilitate project funding with Enova
affiliates.
Total [...***...] [...***...]
OPERATING REQUIREMENTS
----------------------
97-▇▇▇-6 [...***...] [...***...] Facilities: Office Space, Equipment
97-▇▇▇-7 [...***...] [...***...] Operational: Telecom, Network, Support
GRAND [...***...] [...***...]
Resources for the Center of Excellence will will mostly be provided by
contract staffing, supplemented by a small component of Enova RFT support staff.
The requirement for System Integrators during the first two years of the center
will be utilized where it is necessary. The actual priority of project
investments will be driven by the needs for supporting the requirements between
the Joint Venture and Enova. Funding will also be prioritized by demands by the
individual operational units in demands for projects like the implementation of
the Financial Reporting System as defined by the MINT project.
*CONFIDENTIAL TREATMENT REQUESTED
--------------------------------------------------------------------------------
COMPONENT DEVELOPMENT CENTER
1997-1999 Business Plan
(000)
------------------------------------------------------------------------------------------------------------------------------------
1997 1998 1999
=====================================================================================
PROJECT DESCRIPTION BUDGET ACTUAL BUDGET REVISED ACTUAL BUDGET REVISED ACTUAL
====================================================================================================================================
EC1000 MINT [..***..] [..***..] [..***..] [..***..]
------------------------------------------------------------------------------------------------------------------------------------
EC1001 TRADER [..***..] [..***..] [..***..] [..***..]
------------------------------------------------------------------------------------------------------------------------------------
EC1002 SERVICE BUREAU GAMEKEEPER [..***..] [..***..] [..***..] [..***..] [..***..]
------------------------------------------------------------------------------------------------------------------------------------
EC1003 ENTERPRISE INFRASTRUCTURE [..***..] [..***..] [..***..] [..***..] [..***..] [..***..]
------------------------------------------------------------------------------------------------------------------------------------
EC1004 NEW PROJECTS [..***..] [..***..] [..***..] [..***..] [..***..] [..***..]
------------------------------------------------------------------------------------------------------------------------------------
EC1004PP PHOENIX [..***..] [..***..] [..***..]
------------------------------------------------------------------------------------------------------------------------------------
EC1004EC ENTERPRISE CONSOLIDATION [..***..] [..***..] [..***..]
------------------------------------------------------------------------------------------------------------------------------------
EC1004VM VEGETATION MANAGEMENT [..***..] [..***..] [..***..]
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EC1004DC DESIGN CENTER [..***..] [..***..] [..***..]
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EC1004SC SERVCO CONCEPT [..***..]
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EP-1011 EAGLE [..***..] [..***..] [..***..]
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*CONFIDENTIAL TREATMENT REQUESTED
1
SEMPRA ENERGY CORPORATION
THIRD AMENDMENT TO
TECHNICAL SERVICES AGREEMENT
FOR CENTER OF EXCELLENCE
This Third Amendment to the Technical Services Agreement ("Amendment") amends
the Technical Services Agreement ("Agreement") between Enova Corporation and
TRANSNATIONAL PARTNERS II, a California limited liability company
("Contractor") dated January 1, 1997, as previously amended and assigned by
Enova Corporation to Sempra Energy, a Delaware corporation ("Sempra") is made
effective January 1, 1999.
The parties hereby agree as follows:
This Amendment amends Schedule A - TECHNICAL SERVICES SCOPE OF WORK FOR
CENTER OF EXCELLENCE, and Schedule C - TASK COST ESTIMATES to include work
expected to continue throughout 1999. Except as specifically amended, the
Agreement remains in full force and effect without any amendments or
modifications, including, without limitation, any modifications arising out
of course of dealing, course of performance or trade usage. Unless otherwise
defined in this Amendment, all words with the initial letter capitalized have
the same definition as in the Agreement.
TRANSNATIONAL PARTNERS II SEMPRA ENERGY CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- ---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Partner Title: Vice President and Chief
--------------------------- Information Technology Officer
Date: 8 Jan 99 Date: 8 Jan 99
---------------------------- --------------------------------
A-1
AMENDMENT THREE TO SCHEDULE A
TECHNICAL SERVICES SCOPE OF WORK FOR CENTER OF EXCELLENCE
13 SEMPRA ENERGY LEGACY INTERFACE IMPLEMENTATION
13.1 GENERAL. Sempra Energy is currently configuring and installing
interfaces with it's Legacy Systems. The contractor will provide interface
development and systems integration expertise to create new interfaces
that link these Systems with other principal application packages and
systems. The contractor's efforts will be focused on creating using
Sempra Energy's existing EFX frameworks as the basis of creating any and
all application interfaces.
13.2 REQUIREMENTS
a) Work with the SAP project team members to establish application
interface requirements.
b) Assist in the development of enterprise information models.
c) Design and develop specific SAP application integration components.
d) Document and any all created interfaces in accordance with Sempra Energy
IT SAP project standards.
e) Provide training and technology transfer regarding created SAP
interfaces to Sempra Energy staff.
f) Evaluate products and tools that can be used to integrate SAP with
external systems.
g) Assist in the development of implementation project plans.
h) Provide periodic reports that document all SAP interface development
activities.
14. EFX INFRASTRUCTURE PRODUCT AND SERVICES DEVELOPMENT SUPPORT
14.1 GENERAL. The ▇▇▇ was principally chartered to provide application
development support for the corporation's existing affiliates. The
purpose of this activity is to provide general project implementation
support for creating and deploying products within the EFX
infrastructure environment. The contractor will provide full life-cycle
implementation support for selected EFX infrastructure products
including requirements, design, implementation, testing, documentation
and customer roll-out. This activity will be performed in direct
support of EFX infrastructure product management activities.
A-2
14.2 REQUIREMENTS
a) Work with EFX infrastructure product management to develop product
requirement specifications, implementation plans, schedules, and
budgets.
b) Conduct internal rapid implementation plan (RIP) workshops utilizing
the ▇▇▇ design center to clarify requirements.
c) Assist EFX infrastructure project managers in the selection of system
development and implementation partners.
d) Assist EFX infrastructure product managers in the selection of third
party software development tools and applications.
e) Develop and deliver selected EFX infrastructure products. All
development products will comply with Sempra Energy's EFX framework to
support reuse and future product extensions.
f) Provide technical management for EFX infrastructure product development
activities.
g) Create supporting documentation and training information for developed
products.
h) Assist in the development of sales support and marketing literature for
developed products.
15. EFX INFRASTRUCTURE CUSTOMER PRODUCT DEPLOYMENT SUPPORT
15.1 GENERAL. It is expected that all EFX infrastructure contracts will
have an implementation component associated with bringing a new
customer into the service bureau. The contractor's role within this
task is to provide EFX infrastructure with technical support in
deploying the company's products and services with customers. It is
expected that the contractor's role will be focused on the creation
of customer interface systems to facilitate the exchange of data between
customer and EFX infrastructure systems. In addition, the contractor
will provide development support services to create any necessary EFX
infrastructure one-off product extensions to satisfy near-term customer
requirements. Finally the contractor will provide implementation
project management support for selected customer implementation
projects.
15.2 REQUIREMENTS
a) Development of project plans and budget estimates for EFX
infrastructure customer projects.
b) Locate and integrate third party products for use in EFX
infrastructure customer projects.
c) Establish training and support requirements needed by the
customer and EFX infrastructure production support teams.
d) Provide project management and tracking of customer
implementation projects.
e) Development of interface applications linking customer and
EFX infrastructure systems.
f) Development of bolt-on component software to meet specialized
customer needs.
A-3
g) Conversion of data from legacy systems to EFX infrastructure
standards.
h) Development and integration of system management software to
control applications and software developed for customers.
i) Development of necessary documentation and training material to
support all software, procedures, and systems created as a
resulting from customer implementations.
16. EFX INFRASTRUCTURE DEPLOYMENT
16.1 GENERAL. The purpose of this activity is to deploy and extend the EFX
infrastructure within EFX infrastructure to meet the needs of delivering
the company's products and services through a service bureau. The
contractor will ensure that any and all enhancements made to the base
framework will be incorporated back into the general EFX release
deployed within Sempra Energy.
16.2 REQUIREMENTS
a) Train staff in the utilization of EFX infrastructure and services.
b) Identify any EFX framework gaps relating to EFX infrastructure
product requirements.
c) Implement or acquire solutions that address specific EFX
infrastructure requirements.
d) Develop documentation and support information for all developed EFX
infrastructure.
e) Integrate specific EFX extensions back into the general Sempra
Energy release.
17. EFX INFRASTRUCTURE PRODUCT IMPLEMENTATION TEMPLATE DEVELOPMENT
17.1 GENERAL. The purpose of this task is to create standard customer
implementation templates for EFX infrastructure products and services.
EFX infrastructure project delivery teams will use these templates
to configure and install product solutions for customers. The contractor
will ensure EFX infrastructure templates are consistent with the
Strategic Enterprise Application Patterns (SNAP) project methodology
developed by the contractor for the Sempra Energy Center of Excellence.
17.2 REQUIREMENTS
a) Establish standard project implementation plan for EFX infrastructure
products based on fixed time and cost methodologies.
b) Categorize the EFX infrastructure staffing resources necessary to
support the utilization of templates in projects. These resource
requirements will be used to update the overall EFX infrastructure
table of distribution.
c) Identify and integrate tools to support project template development
including those of base technologies incorporated into EFX
infrastructure products (e.g., SAP ASAP methodology).
d) Develop training materials for all project implementation templates.
A-4
e) Provide training classes in the utilization of EFX infrastructure
project templates.
f) Provide consulting support to EFX infrastructure project
implementation teams.
g) Capture lessons learned from actual implementation projects. These
lessons learned will be used to update standard EFX infrastructure
project implementation templates.
18. EFX INFRASTRUCTURE REPOSITORY MANAGEMENT
18.1 GENERAL. The purpose of this task activity is to establish the base
tools and processes for managing the software developed in all EFX
infrastructure projects. In particular, the contractor's focus on this
task will be to facilitate the harvesting of software components from
EFX infrastructure customer implementation projects. The harvesting
of these components will not only speed future implementation efforts
but also enhance quality by reducing the amount of new software that
needs to be constructed to meet future implementation projects as well
as promoting a common development style throughout the enterprise. The
contractor's approach to this task assumes that a separate repository
will exist for each EFX infrastructure product line in addition to a
set of common services and facilities shared by all projects.
18.2 REQUIREMENTS
a) Establish definitions and areas of responsibility for all EFX
infrastructure software and product repositories.
b) Select and integrate repository management tools. Any additional
tools selected for use in EFX infrastructure will be consistent
with those in use within Sempra Energy IT.
c) Factor project software for incorporation into repositories. In
particular, the repository management team will generalize code
developed to meet specific customer implementation projects to meet
future project needs.
d) Documentation of repository elements to support their use by
application project teams.
19. INTEGRATION OF COMMON BUSINESS SERVICES
19.1 GENERAL. The focus of this activity is to develop a set of common
application facilities and business shared across most software
applications. The contractor will perform these activities in close
cooperation with emerging and ongoing Sempra Energy IT project
initiatives. The contractors role will be to assist IT project leaders
in selecting and integrating base business service technologies in
accordance with EFX standards. Current anticipated common business
services might include but are not limited to:
- Electronic Data Interchange
- Application Imaging
- Report Generation
- Workflow Management
A-5
- Internet-based Commerce
19.2 REQUIREMENTS
a) Establish requirements for basic common business services in
conjunction with Sempra Energy IT and business project leaders.
b) Perform technology analyses and develop system prototypes to
select any required third party products used in the creation
of business services.
c) Establish project plans to implement business services either as the
lead system integrator or as part of a larger Sempra Energy IT team.
d) Design, develop, and integrate business services as EFX-compliant
software components and collaborative subsystems.
e) Document all developed business services from application use as
well as system support perspectives.
f) Provide training to Sempra Energy IT to utilize and maintain
developed common business services.
A-6
AMENDMENT THREE TO SCHEDULE C
TASK COST ESTIMATES
The contractor has estimated that the following level of work will be
required to support the additional activity outlined in the Amendment Three
to Schedule A, Technical Services Scope of Work for Center of Excellence.
Estimated Number of Hours
during 12 month amended
Contractor Job Classification period
----------------------------- --------------------------
Senior Partner [...***...]
Partner [...***...]
Senior Technical Consultant [...***...]
Technical Consultant [...***...]
Associate Technical Consultant [...***...]
Research Support [...***...]
Administrative Support [...***...]
Estimated Total Cost of Amendment [...***...]
Three Services
Previous Total Contract Budget Amount [...***...]
(Second Amendment to Schedule C)
New Amended Total Not to Exceed [...***...]
Project Budget
These estimates are based upon Contractor's hourly rates set forth
in the Agreement, nothing contained herein shall create any binding
obligation upon Sempra Energy to engage Contractor to perform any work.
*CONFIDENTIAL TREATMENT REQUESTED
C-1