ENERGY SERVICE PROVIDER
(ESP)
SERVICE AGREEMENT
[LOGO] -----------------------------------
ENERGY SERVICE PROVIDER (ESP)
SERVICE AGREEMENT
-----------------------------------
Agreement Number: 54
This Energy Service Provider Service Agreement (this "Agreement") is made and
entered into as of this 9 day of April (month), 1998 (year), by and between
FULL POWER CORPORATION (ESP Name), a CORPORATION (type of entity) organized
and existing under the laws of the state of OHIO and San Diego Gas & Electric
Company (SDG&E), a corporation organized and existing under the laws of the
state of California. From time to time, ESP and UDC shall be individually
referred to herein as a "Party" and collectively as the "Parties."
SECTION 1: GENERAL DESCRIPTION OF AGREEMENT
1.1 This Agreement is a legally binding contract. The Parties
named in this Agreement are bound by the terms set forth herein
and otherwise incorporated herein by reference. This Agreement
shall govern the business relationship between the Parties
hereto by which ESP shall offer electrical energy services,
including, but not limited to, account maintenance and billing
services, electrical meter installation, meter reading services
and/or any other services that may be approved by the
California Public Utilities Commission ("CPUC") in Direct
Access transactions with customers in UDC's service territory
("Direct Access Services"). Each Party, by agreeing to
undertake specific activities and responsibilities for or on
behalf of customers, acknowledges that each Party shall relieve
and discharge the other Party of the responsibility for said
activities and responsibilities with respect to those
customers. Except where explicitly defined herein (including
Attachment A hereto) the definitions controlling this Agreement
are contained in UDC's applicable rules or in the relevant
direct access tariff.
1.2 The form of this Agreement has been developed as part of the
CPUC regulatory process, was intended to conform to CPUC
directions, was filed and approved by the CPUC for use between
UDC and ESPs and may not be waived, altered, amended or
modified, except as provided herein or in the relevant direct
access tariff, or as may otherwise be authorized by the CPUC.
1
[LOGO] ---------------------------------
ENERGY SERVICE PROVIDER (ESP)
SERVICE AGREEMENT
---------------------------------
SECTION 2: REPRESENTATIONS
2.1 Each Party represents that it is and shall remain in compliance
with all applicable laws and tariffs, including applicable CPUC
requirements.
2.2 Each person executing this Agreement for the respective Parties
expressly represents and warrants that he or she has authority
to bind the entity on whose behalf this Agreement is executed.
2.3 Each Party represents that (a) it has the full power and
authority to execute and deliver this Agreement and to perform
its terms and conditions; (b) the execution, delivery and
performance of this Agreement have been duly authorized by all
necessary corporate or other action by such Party; and (c) this
agreement constitutes such Party's legal, valid and binding
obligation, enforceable against such Party in accordance with
its terms.
2.4 Each Party shall (a) exercise all reasonable care, diligence
and good faith in the performance of its duties pursuant to
this Agreement; and (b) carry out its duties in accordance with
applicable recognized professional standards in accordance with
the requirements of this Agreement.
SECTION 3: TERM OF SERVICE
The term of this Agreement shall commence on the date of
execution by both Parties hereto (the "Effective Date") and
shall terminate on the earlier of (a) the date ESP informs UDC
that it is no longer operating as an ESP in the UDC's service
territory; (b) the earlier termination pursuant to Section 4
hereof; or (c) the effective date of a new ESP Service
Agreement between the Parties hereto. Notwithstanding the
Effective Date of this Agreement, the ESP acknowledges that it
may only offer Direct Access Services to customers effective
January 1, 1998, or such other date as may be directed by the
CPUC for commencement of such services by ESPs, and only after
it has complied with all provisions of this Agreement and UDC's
applicable tariffs.
SECTION 4: EVENTS OF DEFAULT AND REMEDY FOR DEFAULT
4.1 An Event of Default under this Agreement shall include either
Party's material breach of any provision of this Agreement,
including those incorporated by reference herein, and failure
to cure such breach within thirty (30) calendar days of
receipt of written notice thereof from the non-defaulting
Party; or such other period
2
[LOGO] -----------------------------------
ENERGY SERVICE PROVIDER (ESP)
SERVICE AGREEMENT
-----------------------------------
as may be provided by this Agreement or the relevant direct
access tariff.
4.2 In the event of such an Event of Default, the non-defaulting
Party shall be entitled (a) to exercise any and all remedies
available under the relevant direct access tariff: (b) to the
extent not inconsistent with the relevant direct access
tariff, to exercise any and all remedies provided for by law
or in equity; and (c) in the event of a material Event of
Default, to terminate this Agreement upon written notice to
the other Party, which shall be effective upon the receipt
thereof.
4.3 Breach by any Party hereto of any provision of the relevant
direct access tariff shall be governed by applicable
provisions contained therein and each Party will retain all
rights granted thereunder.
SECTION 5: BILLING, METERING AND PAYMENT
5.1 Billing options and metering services which are available to
ESP shall be as described in the relevant direct access tariff,
as stated in UDC's Electric Rule 25. Billing and metering
options applicable to a particular customer shall be
designated in the Direct Access Service Request submitted by
the ESP for such customer.
5.2 UDC will xxxx and the ESP agrees to pay UDC for all services
and products provided by UDC in accordance with the terms
and conditions set forth in the relevant direct access tariff,
as stated in UDC's Electric Rule 25. Any services provided by
the ESP to the UDC shall be by separate agreement between the
Parties and are not a subject of this Agreement.
SECTION 6: LIMITATION OF LIABILITY
Each Party's liability to the other Party for any loss, cost,
claim, injury, liability, or expense, including reasonable
attorneys' fees, relating to or arising from any act or
omission in its performance of this Agreement, shall be
limited to the amount of direct damage actually incurred,
except as provided for in this Section. In no event shall
either Party be liable to the other Party for any indirect,
special, consequential, or punitive damages of any kind
whatsoever, whether in contract, tort or strict liability,
except in the event of an action covered by the
Indemnification provisions of Section 7 of this Agreement, in
which event this Section 6 shall not be applicable.
3
[LOGO] -----------------------------------
ENERGY SERVICE PROVIDER (ESP)
SERVICE AGREEMENT
-----------------------------------
SECTION 7: INDEMNIFICATION
7.1 To the fullest extent permitted by law, and subject to the
limitations set forth in Section 6 of this Agreement, each
Party (the "Indemnified Party") shall indemnify and hold
harmless the other Party, and its current and future direct
and indirect parent companies, affiliates and their
shareholders, officers, directors, employees, agents, servants
and assigns (collectively, the "Indemnified Party") and at
the Indemnified Party's option, the Indemnifying Party shall
defend the Indemnified Party from and against any and all
claims and/or liabilities for losses, expenses, damage to
property, injury to or death of any person, including, but not
limited to, the Indemnified Party's employees and its
affiliates' employees, subcontractors and subcontractors'
employees, or any other liability incurred by the Indemnified
Party, including reasonable expenses, legal and otherwise,
which shall include reasonable attorneys' fees, caused wholly
or in part by any negligent, grossly negligent or willful act or
omission by the Indemnifying Party, its officers, directors,
employees, agents or assigns arising out of this Agreement,
except to the extent caused wholly or in part by any negligent,
grossly negligent or willful act or omission of the
Indemnified Party.
7.2 If any claim covered by Section 7.1 is brought against the
Indemnified Party, then the Indemnifying Party shall be
entitled to participate in, and unless in the opinion of
counsel for the Indemnified Party a conflict of interest
between the Parties may exist with respect to such claim,
assume the defense of such claim, with counsel reasonably
acceptable to the Indemnified Party. If the Indemnifying Party
does not assume the defense of the Indemnified Party, or if a
conflict precludes the Indemnifying Party from assuming the
defense, then the Indemnifying Party shall reimburse the
Indemnified Party on a monthly basis for the Indemnified
Party's defense through separate counsel of the Indemnified
Party's choice. Even if the Indemnifying Party assumes the
defense of the Indemnified Party with acceptable counsel, the
Indemnified Party, at its sole option, may participate in the
defense, at its own expense, with counsel of its own choice
without relieving the Indemnifying Party of any of its
obligations hereunder. In no event shall either Party be
liable to the other Party for any indirect, special,
consequential, or punitive damages of any kind whatsoever,
whether in contract, tort or strict liability.
7.3 The Indemnifying Party's obligation to indemnify under this
Section 7 shall survive termination of this Agreement, and
shall not be limited in any way by any limitation on the
amount or type of damages, compensation or benefits payable by
or for the Indemnifying Party under any statutory scheme,
including, without limitation, under any Worker's Compensation
Acts, Disability Benefit Acts or other Employee Benefit Acts.
4
[LOGO] ---------------------------------
ENERGY SERVICE PROVIDER (ESP)
SERVICE AGREEMENT
---------------------------------
SECTION 8: ASSIGNMENT AND DELEGATION
8.1 Neither Party to this Agreement shall assign any of its rights
or obligations under this Agreement, except with the prior
written consent of the other Party, which consent shall not be
unreasonably withheld or delayed. No assignment of this
Agreement shall relieve the assigning Party of any of its
obligations under this Agreement until such obligations have
been assumed by the assignee. When duly assigned in accordance
with the foregoing, this Agreement shall be binding upon and
shall inure to the benefit of the assignee and the assignor
shall be relieved of its rights and obligations. Any
assignment in violation of this Section 8 shall be void.
8.2 Notwithstanding the provisions of this Section 8, either Party
may subcontract its duties under this Agreement to a
subcontractor, provided that the subcontracting Party shall
remain fully responsible as a principal and not as a guarantor
for performance of any subcontracted duties, shall serve as the
point of contact between its subcontractor and the other Party,
and shall provide the other Party with thirty (30) calendar
days' prior written notice of any such subcontracting, which
notice shall include such information about the subcontractor
as the other Party shall reasonably require, and provided
further that each Party may subcontract its obligation to
provide Metering or Meter Reading Services under this Agreement
only to subcontractors who have complied with all certification
or registration requirements described in applicable law, CPUC
rules and the relevant direct access tariff. If either Party
subcontracts any of its duties hereunder, it shall cause its
subcontractors to perform in a manner which is in conformity
with that Party's obligations under this Agreement.
SECTION 9: INDEPENDENT CONTRACTORS
Each Party shall perform its obligations under this Agreement
(including any obligations performed by a Party's designees as
permitted under Section 8 of this Agreement) as an independent
contractor.
SECTION 10: ENTIRE AGREEMENT
This Agreement consists of, in its entirety, this Energy
Service Provider Service Agreement and all attachments hereto,
all Direct Access Service Requests submitted pursuant to this
Agreement and the relevant direct access tariff. This
Agreement supersedes all other agreements or understandings,
written or oral, between the Parties related to the subject
matter hereof. This Agreement may be modified from time to
time only by an instrument in writing, signed by both Parties.
5
[LOGO] ---------------------------------
ENERGY SERVICE PROVIDER (ESP)
SERVICE AGREEMENT
---------------------------------
SECTION 11: NONDISCLOSURE
11.1 Neither Party may disclose any Confidential Information
obtained pursuant to this Agreement to any third party,
including affiliates of such Party, without the express prior
written consent of the other Party. As used herein, the term
"Confidential Information" shall include, but not be limited
to, all business, financial, and commercial information
pertaining to the Parties, customers of either or both Parties,
suppliers for either Party, personnel of either Party, any
trade secrets, and other information of a similar nature,
whether written or in intangible form that is marked
proprietary or confidential with the appropriate owner's name.
Confidential Information shall not include information known to
either Party prior to obtaining the same from the other Party,
information in the public domain, or information obtained by a
Party from a third party who did not, directly or indirectly,
receive the same from the other Party to this Agreement or from
a party who was under an obligation of confidentiality to
the other Party to this Agreement or information developed by
either Party independent of any Confidential Information. The
receiving Party shall use the higher of the standard of care
that the receiving Party uses to preserve its own confidential
information or a reasonable standard of care to prevent
unauthorized use or disclosure of such Confidential
Information. Each receiving Party shall, upon termination of
this Agreement or at any time upon the request of the
disclosing Party, promptly return or destroy all Confidential
Information of the disclosing Party then in its possession.
11.2 Notwithstanding the preceding, Confidential Information may be
disclosed to any governmental, judicial or regulatory authority
requiring such Confidential Information pursuant to any
applicable law, regulation, ruling, or order, provided that:
(a) such Confidential Information is submitted under any
applicable provision, if any, for confidential treatment by
such governmental, judicial or regulatory authority; and (b)
prior to such disclosure, the other Party is given prompt
notice of the disclosure requirement so that it may take
whatever action it deems appropriate, including intervention in
any proceeding and the seeking of any injunction to prohibit
such disclosure.
6
[LOGO] ---------------------------------
ENERGY SERVICE PROVIDER (ESP)
SERVICE AGREEMENT
---------------------------------
SECTION 12: ENFORCEABILITY
If any provision of this Agreement or the application thereof, is
to any extent held invalid or unenforceable, the remainder of this
Agreement and the application thereof, other than those provisions
which have been held invalid or unenforceable, shall not be
affected and shall continue in full force and effect and shall be
enforceable to the fullest extent permitted by law or in equity.
SECTION 13: NOTICES
13.1 Except as otherwise provided in this Agreement, any notices under
this Agreement shall be in writing and shall be effective upon
delivery if delivered by (a) hand; (b) U.S. Mail, first class
postage pre-paid, or (c) facsimile, with confirmation of receipt
to the Parties as follows:
IF THE NOTICE IS TO ESP:
Contact Name: XXXXXX X. XXXXXXX
--------------------------------------------------------
Business Address: 00000 XXXXXXX XXXXXX, XXXXX 000
--------------------------------------------------
XXXXXXXX, XX 00000
--------------------------------------------------
Facsimile: 000-000-0000
-----------------------------------------------------------
IF THE NOTICE IS TO UDC:
Contact Name: XXXXXXX X. XXXXXXXXX
--------------------------------------------------------
Business Address: 0000 XXXXXXX XXXX XXXXX, XXXXX 0000
----------------------------------------------------
XXX XXXXX, XX 00000-0000
----------------------------------------------------
Facsimile: (000) 000-0000
----------------------------------------------------
13.2 Each Party shall be entitled to specify as its proper address any
other address in the United States upon written notice to the
other Party.
7
[LOGO] ---------------------------------
ENERGY SERVICE PROVIDER (ESP)
SERVICE AGREEMENT
---------------------------------
13.3 Each Party shall designate on Attachment A the person(s) to be
contacted with respect to specific operational matters relating to
Direct Access service. Each Party shall be entitled to specify any
change to such person(s) upon written notice to the other Party.
SECTION 14: TIME OF ESSENCE
The Parties expressly agree that time is of the essence for all
portions of this Agreement.
SECTION 15: DISPUTE RESOLUTION
15.1 The form of this Agreement has been filed with and approved by the
CPUC as part of the UDC's applicable tariffs. Except as provided
in Section 15.2 and 15.3, any dispute arising between the Parties
relating to interpretation of the provisions of this Agreement or
to the performance of the UDC's obligations hereunder (including
the performance of Billing Services, Metering Services and MDMA
Services by the UDC) shall be reduced to writing and referred to
the Parties' representatives identified on Attachment A for
resolution. Should such a dispute arise, the parties shall be
required to meet and confer in an effort to resolve their
dispute. Pending resolution, the Parties shall proceed diligently
with the performance of their respective obligations under this
Agreement, except if this Agreement has been terminated under
Section 4.2. If the Parties fail to reach an agreement within a
reasonable period of time, the matter shall, upon demand of either
Party, be submitted to resolution before the CPUC in accordance
with the CPUC's rules, regulations and procedures applicable to
resolution of such disputes.
15.2 Any dispute arising between the Parties relating to interpretation
of the provisions of this Agreement or to the performance of the
ESP's obligations hereunder (including the performance of Billing
Services, Metering Services and MDMA Services by the ESP) shall be
reduced to writing and referred to the Parties' representatives
identified on Attachment A for resolution. Should such a dispute
arise, the parties shall be required to meet and confer in an
effort to resolve their dispute. Pending resolution, the Parties
shall proceed diligently with the performance of their respective
obligations under this Agreement, except if this Agreement has
been terminated under Section 4.2. If the Parties fail to reach an
agreement within a reasonable period of time, the parties may
mutually agree to pursue mediation or arbitration to resolve such
issues.
15.3 Notwithstanding the provisions of Paragraph 15.1 and 15.2 above:
(a) all disputes
8
[LOGO] ---------------------------------
ENERGY SERVICE PROVIDER (ESP)
SERVICE AGREEMENT
---------------------------------
between the Parties relating to the payment by the ESP of any UDC
fees or charges shall be subject to the provisions of the UDC's
applicable tariffs governing disputes over customer bills; (b) all
disputes between the Parties regarding Competition Transition
Charges payable by direct access customers or the ESP on behalf of
such customers shall be subject to the provisions of the UDC's
applicable tariffs; and (c) the UDC may pursue available remedies
for unauthorized electrical use by the ESP in a court of competent
jurisdiction.
15.4 If the dispute involves a request for damages, parties are
notified that the Commission has no authority to award damages. To
resolve such issues, the parties may mutually agree to pursue
mediation or arbitration to resolve such issues, or if no
agreement is reached, to pursue other legal remedies that are
available to the parties.
SECTION 16: APPLICABLE LAW AND VENUE
This Agreement shall be interpreted, governed by and construed in
accordance with the laws of the State of California, and shall
exclude any choice of law rules that direct the application of the
laws of another jurisdiction, irrespective of the place of
execution or of the order in which the signatures of the parties
are affixed or of the place or places of performance. Except for
matters and disputes with respect to which the CPUC is the sole
proper venue for dispute resolution pursuant to applicable law or
this Agreement, the federal and state courts located in San Diego
County, California shall constitute the sole proper venue for
resolution of any matter or dispute hereunder, and the Parties
submit to the exclusive jurisdiction of such courts with respect
to such matters and disputes.
SECTION 17: FORCE MAJEURE
Neither party shall be liable for any delay or failure in the
performance of any part of this Agreement (other than obligations
to pay money) due to any event of force majeure or other cause
beyond its reasonable control, including but not limited to,
unusually severe weather, flood, fire, lightning, epidemic,
quarantine restriction, war, sabotage, act of a public enemy,
earthquake, insurrection, riot, civil disturbance, strike, work
stoppage caused by jurisdictional and similar disputes, restraint
by court order or public authority, or action or non-action by or
inability to obtain authorization or approval from any
governmental authority, or any combination of these causes, which
by the exercise of due diligence and foresight such Party could
not reasonably have been expected to avoid and which by the
exercise of due diligence is unable to overcome. It is agreed that
upon the Party so
9
[LOGO] ---------------------------------
ENERGY SERVICE PROVIDER (ESP)
SERVICE AGREEMENT
---------------------------------
affected giving written notice and reasonably full particulars of
such force majeure to the other Party within a reasonable time
after the cause relied on, then the obligations of the Party, so
far as they are affected by the event of force majeure, shall be
suspended during the continuation of such inability and
circumstance and shall, so far as possible, be remedied with all
reasonable dispatch. In the event of force majeure, as
described herein, both Parties shall take all reasonable steps to
comply with this Agreement and UDC's applicable tariffs despite
occurrence of a force majeure event.
SECTION 18: UNAUTHORIZED USE OF ENERGY (ENERGY THEFT)
18.1 The ESP represents and warrants that for each of its Customers,
and at all times during which it provides Direct Access services
as an Energy Service Provider, the ESP shall completely,
accurately, and in a timely manner account for each of its
Customer's loads with a duly authorized Scheduling Coordinator.
Load data not accounted for in this manner may provide grounds for
termination of this Agreement. For verification purposes only, the
UDC shall have complete access to the identity of the Scheduling
Coordinator and the load data provided to it by the ESP. Such
information is to remain confidential, and shall not be disclosed
to any unauthorized person.
18.2 The UDC shall notify the ESP immediately and the ESP shall notify
the UDC immediately of any suspected unauthorized energy use. The
Parties agree to preserve any evidence of unauthorized energy use.
Once unauthorized energy use is suspected, the UDC, in its sole
discretion, may take any or all of the actions permitted under
UDC's applicable tariffs.
SECTION 19: NOT A JOINT VENTURE
Unless specifically stated in this Agreement to be otherwise, the
duties, obligations, and liabilities of the Parties are intended
to be several and not joint or collective. Nothing contained in
this Agreement shall ever be construed to create an association,
trust, partnership or joint venture or to impose a trust or
partnership duty, obligation, or liability on or with regard to
either Party. Each Party shall be liable individually and
severally for its own obligations under this Agreement.
10
[LOGO] ---------------------------------
ENERGY SERVICE PROVIDER (ESP)
SERVICE AGREEMENT
---------------------------------
SECTION 20: CONFLICTS BETWEEN THIS AGREEMENT AND THE RELEVANT DIRECT ACCESS
TARIFF
Should a conflict exist or develop between the provisions of this
Agreement and the relevant direct access tariff, as approved by
the CPUC, the provisions of the relevant direct access tariff
shall prevail.
SECTION 21: AMENDMENTS OR MODIFICATIONS
21.1 Except as provided in Section 21.2, no amendment or modification
shall be made to this Agreement, in whole or in part, except by an
instrument in writing executed by authorized representatives of
the Parties, and no amendment or modification shall be made by
course of performance, course of dealing or usage of trade.
21.2 This Agreement may be subject to such changes or modifications as
the CPUC may from time to time direct or necessitate in the
exercise of its jurisdiction, and the Parties may amend the
Agreement to conform to changes directed or necessitated by the
CPUC. In the event the Parties are unable to agree on the required
changes or modifications to this Agreement, their dispute shall be
resolved in accordance with the provisions of Section 15 hereof
or, in the alternative, ESP may elect to terminate this Agreement
upon written notice to UDC, which shall be effective upon the
receipt thereof. UDC retains the right to unilaterally file with
the CPUC, pursuant to the CPUC's rules and regulations, an
application for a change in UDC's rates, charges, classification,
service or rules, or any agreement relating thereto.
11
[LOGO] ---------------------------------
ENERGY SERVICE PROVIDER (ESP)
SERVICE AGREEMENT
---------------------------------
SECTION 22: BILLING OPTIONS OFFERED TO END-USE CUSTOMERS BY ESP
Check which billing options (as described in the relevant
direct access tariff) ESP intends to provide its Customers
under this Agreement.
X CONSOLIDATED BILLING BY UDC. (if ESP is selecting this
----- billing option, indicate the primary method for
notifying UDC of ESP charges)
X EDI
----
Other electronic exchange
----
----- CONSOLIDATED BILLING BY THE ESP. If ESP is selecting
this billing option, (a) ESP must submit a credit
application on the form supplied by UDC; and (b) indicate
the primary method for notifying ESP of UDC Charges
(CHECK ONE):
Paper
----
Diskette
----
EDI
----
Other electronic exchange
----
----- SEPARATE UDC AND ESP BILLS.
ESP may change these elections from time to time in compliance
with the relevant direct access tariff upon prior written
notice to UDC. The Direct Access Service Request for each
Direct Access customer will specify which billing option will
apply to that customer. If ESP specifies in any DASR any billing
option that has not been checked above, the DASR will be rejected.
SECTION 23: METER OPTIONS OFFERED TO END-USE CUSTOMERS BY ESP
PLEASE INDICATE WHICH METER OPTIONS (AS DESCRIBED IN UDC'S
APPLICABLE TARIFFS) THE ESP WILL OFFER FOR SOME OR ALL CUSTOMERS
SERVED UNDER THIS AGREEMENT:
ESP will provide Hourly Meters.
------
ESP will offer Hourly Meter Installation
------ Services.
ESP will offer Hourly Meter Reading Services.
------
ESP may change these elections from time to time in
compliance with the relevant
12
[LOGO] ---------------------------------
ENERGY SERVICE PROVIDER (ESP)
SERVICE AGREEMENT
---------------------------------
direct access tariff upon prior written notice to
UDC. The Direct Access Service Request for each
Direct Access customer will specify which metering
option will apply to that Customer. If ESP
specifies in any Direct Access Service Request any
metering option that has not been checked above, the
DASR will be rejected.
SECTION 24: AUDITS
24.1 The UDC and the ESP shall each retain such specific records as
may be required to support the accuracy of meter data provided
in their respective consolidated xxxxxxxx. When either Party
reasonably believes that errors related to metering or billing
activity may have occurred, a Party may request the production
of such documents as may be required to verify the accuracy of
such metering and consolidated billing. Such documents shall
be provided within ten (10) business days of such request. In
the event the requesting Party, upon review of such documents,
continues to believe that the other Party's duty to accurately
meter and provide consolidated billing for usage has been
breached, the requesting Party may direct that an audit be
conducted. The UDC and the ESP shall designate their own
employee representative or their contracted representative to
audit the other party's records.
24.2 Any such audit shall be undertaken by the UDC, the ESP, or
their contracted representative at reasonable times without
interference with the audited Party's business operations, and
in compliance with the audited Party's security procedures.
UDC and the ESP agree to cooperate fully with any such audit.
24.3 Specific records to support the accuracy of meter data provided
in the consolidated xxxxxxxx may require examination of billing
and metering support documentation maintained by
subcontractors. UDC and the ESP shall include a similar
clause in their agreements with their subcontractors reserving
the right to designate their own employee representative, or
their contracted representative to audit records related to
consolidated billing to Direct Access Customers.
24.4 The auditing Party will notify the audited Party in writing of
any exception taken as a result of an audit. The audited Party
shall refund the amount of any undisputed exception to the
auditing Party within ten (10) days. If the audited Party
fails to make such payment, the audited Party agrees to pay
interest, accruing monthly, at a rate equal to the prime rate
plus two percent (2%) of Bank of America NT&SA, San Francisco,
or any successor institution, in effect from time to time, but
not to exceed the maximum contract rate permitted by the
applicable usury laws of the State of California. Interest will
be computed from the date of written notification of exceptions
to the date the audited Party reimburses the auditing Party for
any exception. The cost of such audit shall be
13
[LOGO] ---------------------------------
ENERGY SERVICE PROVIDER (ESP)
SERVICE AGREEMENT
---------------------------------
paid by the auditing Party; provided, however, that in the event
an audit verifies overcharges of five percent (5%) or more, then
the audited Party shall reimburse the auditing Party for the cost
of the audit.
24.5 This right to audit shall extend for a period of three (3)
years following the date of final payment under this Agreement.
Each party and each subcontractor shall retain all necessary
records and documentation for the entire length of this audit
period.
SECTION 25: MISCELLANEOUS
25.1 Unless otherwise stated in this Agreement: (a) any reference in
this Agreement to a section, subsection, attachment or similar
term refers to the provisions of this Agreement; (b) a
reference to a section includes that section and all its
subsections; and (c) the words "include," "includes," and
"including" when used in this Agreement shall be deemed in each
case to be followed by the words "without limitation." The
Parties agree that the normal rule of construction to the
effect that any ambiguities are to be resolved against the
drafting Party shall not be employed in the interpretation of
this Agreement.
25.2 The provisions of this Agreement are for the benefit of the
Parties and not for any other person or third party
beneficiary. The provisions of this Agreement shall not impart
rights enforceable by any person, firm or organization other
than a Party or a successor or assignee of a Party to this
Agreement.
25.3 The descriptive headings of the various sections of this
Agreement have been inserted for convenience of reference only
and shall in no way define, modify or restrict any of the terms
and provisions thereof.
25.4 Any waiver at any time by either Party of its rights with
respect to a default under this Agreement, or with respect to
any other matter arising in connection with this Agreement,
shall not be deemed a waiver with respect to any other or
subsequent default or matter and no waiver shall
be considered effective unless in writing.
25.5 Each Party shall be responsible for paying its own attorneys'
fees and other costs associated with this Agreement, except as
provided in Sections 6 and 7 hereof. If a dispute exists
hereunder, the prevailing Party, as determined by the CPUC, or
as may otherwise be determined by the dispute resolution
procedure contained in Section 15 hereof, if used, or by a
court of law, shall be entitled to reasonable attorneys' fees
and costs.
14
[LOGO]
---------------------------------
ENERGY SERVICE PROVIDER (ESP)
SERVICE AGREEMENT
---------------------------------
25.6 To the extent that the CPUC has a right under then-current law
to audit either Party's compliance with this Agreement or other
legal or regulatory requirements pertaining to Direct Access
transactions, that Party shall cooperate with such audits.
Nothing in this Section shall be construed as an admission by
either Party with respect to the right of the CPUC to conduct
such audits or the scope thereof.
25.7 Except as otherwise provided in this Agreement, all rights of
termination, cancellation or other remedies in this Agreement
are cumulative. Use of any remedy shall not preclude any other
remedy in this Agreement.
------------------------------------------------------------------------------
The Parties have executed this Agreement on the dates indicated
below, to be effective upon the later date.
On Behalf of ESP On Behalf of UDC
---------------- ----------------
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Gunzelma
------------------------ --------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxxx X. Gunzelma
Title: PRESIDENT Title: Account Executive
Date: 4-9-98 Date: 4-27-98
15
[LOGO]
---------------------------------
ENERGY SERVICE PROVIDER (ESP)
SERVICE AGREEMENT
---------------------------------
ATTACHMENT A
A. DEFINITIONS:
BILLING SERVICES - The consolidated billing services described in the
relevant direct access tariff which are provided by the UDC and/or ESP.
CONSOLIDATED ESP XXXX - The consolidated xxxx prepared and presented by ESP
to an end-use customer which includes the customer's ESP Charges and UDC
Charges.
CONSOLIDATED UDC XXXX - The consolidated xxxx prepared and presented by UDC
to an end-use customer which includes the Customer's ESP Charges and UDC
Charges.
DIRECT ACCESS CUSTOMERS - An end-use customer located within UDC's service
territory who purchases Direct Access Services through the ESP.
ESP CHARGES - Charges for Direct Access Services provided by the ESP.
METERING SERVICES - The meter installation, maintenance and related services
described in the relevant direct access tariff which are provided by the UDC
and/or ESP.
METER READING SERVICES - The meter reading and related services described in
the relevant direct access tariff which are provided by the UDC and/or ESP.
UDC CHARGES - Charges (a) for services provided by UDC; or (b) which are
energy-related and which are approved by the CPUC or the Federal Energy
Regulatory Commission (including any Competition Transition Charges or Fixed
Transition Amount Charges owing to UDC or its affiliates, as those terms are
defined under the California Public Utilities Code). Fixed Transition Amount
Charges are also referred to as Trust Transfer Amount (TTA) Charges.
------------------------------------------------------------------------------
B. CONTACT PERSONS (SECTION 13.3):
1. BILLING SERVICES
UDC Contact: Xxxxxxx Xxxxxx (000) 000-0000
ESP Contact: Xxxxxx X. Xxxxxxx
2. METERING AND METER READING SERVICES
UDC Contact: Xxxxx Xxxxx (000) 000-0000
ESP Contact: Xxxxxx X. Xxxxxxx
C. PARTIES' REPRESENTATIVES (SECTION 15.1):
UDC Representative: Xxxxxxx Xxxxxxxxx (000) 000-0000
ESP Representative: Xxxxxx X. Xxxxxxx
