AMENDED AND RESTATED FIELD SERVICES AGREEMENT between TXU ELECTRIC DELIVERY COMPANY and INFRASTRUX ENERGY SERVICES GROUP LP Dated June 24, 2006
Exhibit
10.l
CONFIDENTIAL
TREATMENT REQUESTED.
CONFIDENTIAL
PORTIONS OF THIS
DOCUMENT
HAVE BEEN REDACTED
AND
HAVE BEEN SEPARATELY
FILED
WITH THE COMMISSION.
EXECUTION
COPY
AMENDED
AND RESTATED
between
TXU
ELECTRIC DELIVERY COMPANY
and
INFRASTRUX
ENERGY SERVICES GROUP LP
Dated
June 24, 2006
TXUED
AND
VENDOR CONFIDENTIAL
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This
Field Services Agreement (this “Services
Agreement”)
is
entered into effective June 24, 2006 (the “Services
Agreement Effective Date”)
by and
between TXU
ELECTRIC DELIVERY COMPANY,
a Texas
corporation having a principal place of business at Lincoln Plaza, 000 X. Xxxxx
Xxxxxx, Xxxxxx, Xxxxx 00000 (“TXUED”),
and
INFRASTRUX
ENERGY SERVICES GROUP LP,
a
Delaware limited partnership having a principal place of business at 000 X.
0xx
Xxxxxx,
Xxxx Xxxxx, Xxxxx 00000 (“Vendor”).
WHEREAS,
simultaneously
with entering into this Services Agreement, TXUED
and
Vendor have entered into the Master Agreement which establishes the overall
contractual framework for TXUED’s and Vendor’s relationship and sets forth terms
and conditions that apply to all Services provided by Vendor; and
WHEREAS,
TXUED desires to procure from Vendor, and Vendor desires to provide to TXUED,
the field services described in this Services Agreement, on the additional
terms
and conditions specified herein.
NOW
THEREFORE, in consideration of the mutual promises and covenants contained
herein, and of other good and valid consideration, the receipt and sufficiency
of which is hereby acknowledged, TXUED and Vendor (collectively, the
“Parties”
and
each, a “Party”)
hereby
agree as follows:
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BACKGROUND
AND CONDITIONS
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1.1
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TXUED
desires that certain field services presently performed and managed
by or
for TXUED, as each is described in this Services Agreement, be performed
and managed by Vendor.
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1.2
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If
(a) the Closing Date (under and as defined in the Participation Agreement,
dated June 24, 2006, among InfrastruX Group, Inc., a Washington
corporation, TXU Asset Services Company LLC, a Delaware limited liability
company, and (for certain limited purposes only) TXU Electric Delivery
Company, a Texas corporation), has not occurred by December 31, 2006,
as
such date may be extended by the Parties, or (b) the Participation
Agreement terminates for any reason prior to the Closing Date, then
in
either case this Services Agreement shall automatically terminate
without
action by either Party and neither Party shall have any liability
to the
other Party as a result of such
termination.
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2.
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DEFINITIONS
AND DOCUMENTS
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2.1
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Definitions.
The terms used with initial capital letters in this Services Agreement
shall have the meanings ascribed to them in this Services Agreement,
Schedule
A
or
in the Master Agreement.
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2.2
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Other
Services Agreement Terms.
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TXUED
AND
VENDOR CONFIDENTIAL
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(a)
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This
Services Agreement is a “Services Agreement” under and as defined in the
Master Agreement. References to Services Agreements in the Master
Agreement and the other Services Agreements shall include this Services
Agreement.
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(b)
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The
provisions of the Master Agreement are incorporated herein by
reference.
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(c)
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In
the event of a conflict between the Master Agreement and this Services
Agreement, the terms of the Master Agreement shall prevail. In the
event
of a conflict between the Master Agreement and any Schedule hereto,
the
terms of the Master Agreement shall
prevail.
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(d)
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In
the event of a conflict between this Services Agreement and any Schedule
hereto, the terms of this Services Agreement shall
prevail.
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(e)
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All
references to this Services Agreement shall include the Schedules
and
other attachments to this Services Agreement, unless otherwise
specified.
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3.
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TERM
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3.1
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Initial
Services Agreement Term.
The initial term of this Services Agreement shall commence as of
12:00:01
a.m., Central Time, on the Services Agreement Effective Date and
continue
until the later of (a) 11:59:59 p.m., Central Time, on the tenth
(10th)
anniversary of the Services Agreement Commencement Date and (b) such
date
as of which the aggregate amount specified in Section
1.2(c)
of
the Master Agreement has been spent by TXUED, unless this Services
Agreement is terminated earlier as provided herein or in the Master
Agreement, in which case the initial term of this Services Agreement
shall
end at 11:59:59 p.m., Central Time, on the effective date of such
termination (the “Initial
Services Agreement Term”).
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3.2
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Extension.
If
TXUED desires to renew this Services Agreement after the Initial
Services
Agreement Term or any Services Agreement Renewal Term, TXUED shall
provide
written notice to Vendor of its desire to do so at least one hundred
and
eighty (180) days prior to the expiration of the Initial Services
Agreement Term or the then current Services Agreement Renewal Term.
Unless
Vendor notifies TXUED within fifteen (15) days of receipt of such
notice
that Vendor does not desire to renew this Services Agreement, the
Parties
shall thereafter negotiate in good faith with respect to the terms
and
conditions upon which the Parties may renew this Services Agreement
and
thereafter execute such renewal (each, a “Services
Agreement Renewal Term”).
In the event the Parties are unable to reach agreement and execute
such
renewal at least one-hundred twenty (120) days prior to the expiration
of
the Initial Services Agreement Term or the then current Services
Agreement
Renewal Term, TXUED may, at its sole option, by delivery of notice
to
Vendor at least ninety (90) days prior to the expiration of the Initial
Services Agreement Term or the then current Services Agreement Renewal
Term, extend the Initial Services Agreement Term or the then current
Services Agreement Renewal Term for one (1) additional period of
up to
twelve (12) months (the exact period of which shall be specified
in
TXUED’s notice of extension) on terms and conditions then in effect. The
Initial Services Agreement Term and the Services Agreement Renewal
Terms,
if any, are collectively referred to as the “Services
Agreement Term”.
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TXUED
AND
VENDOR CONFIDENTIAL
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4.
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SERVICES
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4.1
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Overview.
In addition to the Services described in the Master Agreement, for
purposes of this Services Agreement the Services shall include the
following, as they may be supplemented, enhanced, modified or replaced
in
accordance with the terms of the Master Agreement and this Services
Agreement:
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(a)
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the
Services set forth in this Services Agreement (including in Schedule
E),
which include the following:
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(i)
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the
Transition Services, as described in Section
4.2
and Schedule
B;
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(ii)
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the
Transformation Services, as described in Section
4.2
and Schedule
S;
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(iii)
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the
Termination Assistance Services, as described in Section
4.3
and Schedule
I;
and
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(iv)
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unless
otherwise agreed by the Parties, the services, functions and
responsibilities (y) specified in or reasonably inferable from the
TXUED
2004 Base Case, if any, attached to this Services Agreement and/or
(z)
performed during the twelve (12) months preceding the Services Agreement
Effective Date by TXUED Affected Personnel as reasonably demonstrated
by
TXUED, or upon TXUED’s request, demonstrated by the Transitioned Employees
acting in good faith.
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(b)
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TXUED
may identify new or additional work activities to be performed by
Vendor
(including work activities that would otherwise be treated as New
Services) or reprioritize or reset the schedule for existing work
activities to be performed by Vendor. Vendor shall use commercially
reasonable efforts to perform such work activities without impacting
the
established schedule for other tasks or the performance of the Services,
including in accordance with the Service Levels. Subject to the Change
Control Process, if it is not possible to avoid such an impact, Vendor
shall notify TXUED of the anticipated impact and the amount of any
additional Charges applicable to such work activities in accordance
with
the applicable rates set forth in Exhibit
11,
and obtain TXUED’s consent prior to proceeding with such work activities.
Vendor shall not begin performing any such work activities until
the TXUED
Service Delivery Executive has provided Vendor with authorization
to
perform such work activities. TXUED, in its sole discretion, may
forego or
delay such work activities or temporarily adjust the work to be performed
by Vendor, the schedules associated therewith or the Service Levels
to
permit the performance by Vendor of such work
activities.
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TXUED
AND
VENDOR CONFIDENTIAL
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4.2
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Transition
Services and Transformation Services.
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(a)
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Transition.
During the Transition Period, Vendor shall perform the Transition
Services
and provide the deliverables in accordance with the terms and conditions
set forth in the Transition Plan. If any services, functions or
responsibilities not specifically described in the Transition Plan
are an
inherent or necessary part of the Transition Services, they shall
be
deemed to be included within the scope of the Transition Services
to be
delivered, as if such services, functions or responsibilities were
specifically described in the Transition Plan. During the Transition
Period, TXUED will only be required to perform those tasks which
are
designated to be TXUED’s responsibility in the Transition Plan. Unless
otherwise agreed, TXUED shall not incur any charges, fees or expenses
payable to Vendor or third parties in connection with the Transition
Services, other than those charges, fees and expenses specified in
Section
10.1(e)
of
the Master Agreement and those incurred by TXUED in connection with
its
performance of tasks designated in the Transition Plan as TXUED’s
responsibility.
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(b)
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Transition
Plan.
The
initial Transition Plan is attached to this Services Agreement as
Schedule
B.
No later than thirty (30) days following the Services Agreement Effective
Date, Vendor shall prepare and deliver to TXUED a detailed Transition
Plan. The proposed detailed Transition Plan shall describe in greater
detail the specific transition activities to be performed by Vendor,
and,
unless otherwise agreed by TXUED, shall be consistent in all material
respects with the initial Transition Plan, including the activities,
deliverables and Transition Milestones described therein. The Parties
shall work collaboratively to revise and finalize the Transition
Plan.
Vendor shall address and resolve any questions or concerns TXUED
may have
as to any aspect of the proposed detailed Transition Plan and incorporate
any modifications, additions or deletions into such Transition Plan
reasonably requested by TXUED. The Transition Plan shall be subject
to
mutual agreement of the Parties. When agreed upon by the Parties,
the
detailed Transition Plan shall be appended to and incorporated in
this
Services Agreement as Schedule B.1.
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(c)
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Content
of Transition Plan.
The detailed Transition Plan shall identify,
among other things, (i) the transition activities to be performed
by
Vendor and the significant components and subcomponents of each such
activity, (ii) the deliverables to be completed by Vendor, (iii)
the
date(s) by which each such activity or deliverable is to be completed
(the
“Transition
Milestones”),
(iv) a
process and set of standards acceptable to the Parties to which Vendor
will adhere in the performance of the Transition Services and that
will
enable the Parties to determine whether Vendor has successfully completed
the transition and the activities and deliverables associated with
each
Transition Milestone;
provided, however, that to the extent the Transition Plan does not
contain
any such criteria
for any given Transition Milestone, then successful completion of
such
Transition Milestone shall be subject to approval by TXUED, such
approval
not to be unreasonably withheld or delayed under the circumstances,
(v) a
process for TXUED to delay Vendor from proceeding with any part of
the
transition, either current or future plans, or to alter the timing
for
implementation,
with appropriate modifications of Transition Milestones
(if necessary),
of
parts of the Services if TXUED determines that any part of the transition
poses a risk or hazard to TXUED’s business interests, (vi) the
contingency or risk mitigation strategies to be employed by Vendor
in the
event of disruption or delay, (vii)
any
transition responsibilities to be performed or transition resources
to be
provided by TXUED and (viii) a detailed work plan identifying the
specific
transition activities to be performed by Vendor Personnel (at the
individual or team level, as appropriate) on a weekly basis during
the
Transition Period.
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TXUED
AND
VENDOR CONFIDENTIAL
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(d)
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Performance.
Vendor and TXUED shall perform the Transition Services described
in the
Transition Plan in accordance with the Transition Milestones. Vendor
shall
use commercially reasonable efforts to provide all cooperation and
assistance reasonably required or requested by TXUED in connection
with
TXUED’s evaluation or testing of the deliverables set forth in the
Transition Plan. Vendor shall perform the Transition Services in
a
professional and workmanlike manner that, except as may be expressly
provided otherwise in the Transition Plan, will not (i) materially
adversely impact the business or operations of TXUED, (ii) materially
degrade the Services then being received by TXUED, or (iii) materially
interfere with the ability of TXUED to obtain the Services, except
as may
be otherwise provided in the Transition Plan. Prior to undertaking
any
transition activity, Vendor shall discuss with TXUED all TXUED-specific
material risks known to Vendor and shall not proceed with such activity
until TXUED is reasonably satisfied with the plans with regard to
such
risks. Vendor shall identify and resolve, with TXUED’s reasonable
assistance, any problems that may impede or delay the timely completion
of
each task in the Transition Plan that is Vendor’s responsibility and shall
use commercially reasonable efforts to assist TXUED with the resolution
of
any problems that may impede or delay the timely completion of each
task
in the Transition Plan that is TXUED’s responsibility. The
transition and the activities and deliverables associated with individual
Transition Milestones shall be deemed complete if they successfully
meet
the measurable success criteria identified in the Transition
Plan;
provided, however, that to the extent the Transition Plan does not
contain
any such criteria for any given Transition Milestone, then successful
completion of the
transition and the activities and deliverables associated with individual
Transition Milestones shall be subject to approval by TXUED, such
approval
not to be unreasonably withheld.
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(e)
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Reports/Meetings.
Vendor shall meet with TXUED, as reasonably requested by TXUED, to
report
on its progress in performing its responsibilities and meeting the
timetable set forth in the Transition Plan. Vendor also shall provide
written reports to TXUED regarding such matters, and shall provide
oral
reports, each as reasonably requested by TXUED. Promptly upon receiving
any information indicating that Vendor may not perform its
responsibilities or meet the timetable set forth in the Transition
Plan,
Vendor shall notify TXUED in writing of material delays and shall
identify
for TXUED’s consideration and approval specific measures to address such
delay and mitigate the risks associated
therewith.
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TXUED
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VENDOR CONFIDENTIAL
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(f)
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Reserved.
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(g)
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Transformation.
During the period that commences on the Services Agreement Commencement
Date and expires 11:59:59 p.m., Central Time, on the date specified
for
the completion of the Transformation Services as specified in the
Transformation Plan, unless expressly extended in writing by TXUED
(the
“Transformation
Period”),
Vendor shall perform the Transformation Services and provide the
deliverables in accordance with the terms and conditions set forth
in the
Transformation Plan. If any services, functions or responsibilities
not
specifically described in the Transformation Plan are an inherent
or
necessary part of the Transformation Services, they shall be deemed
to be
included within the scope of the Transformation Services to be delivered,
as if such services, functions or responsibilities were specifically
described in the Transformation Plan. During the Transformation Period,
TXUED will only be required to perform those tasks which are designated
to
be TXUED’s responsibility in the Transformation Plan. Unless otherwise
agreed, TXUED shall not incur any charges, fees or expenses payable
to
Vendor or third parties in connection with the Transformation Services,
other than those incurred by TXUED in connection with its performance
of
tasks designated in the Transformation Plan as TXUED’s
responsibility.
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(h)
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Transformation
Plan.
The
initial Transformation Plan is attached to this Services Agreement
as
Schedule
S.
During the sixty (60) days immediately following the Services Agreement
Commencement Date, Vendor shall prepare and deliver to TXUED a detailed
Transformation Plan. The proposed detailed Transformation Plan shall
describe in greater detail the specific transformation activities
to be
performed by Vendor, but, unless otherwise agreed by TXUED, shall
be
consistent in all material respects with the initial Transformation
Plan
including the activities, deliverables and Transformation Milestones
described therein. The Parties shall work collaboratively to revise
and
finalize the Transformation Plan. Vendor shall address and resolve
any
questions or concerns TXUED may have as to any aspect of the proposed
detailed Transformation Plan and incorporate any modifications, additions
or deletions to such Transformation Plan reasonably requested by
TXUED.
The Transformation Plan shall be subject to mutual agreement of the
Parties. When agreed upon by the Parties, the detailed Transformation
Plan
shall be appended to and incorporated in this Services Agreement
as
Schedule S.1.
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TXUED
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VENDOR CONFIDENTIAL
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(i)
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Content
of Transformation Plan.
The detailed Transformation Plan shall identify,
among other things, (i) the transformation activities to be performed
by
Vendor and the significant components and subcomponents of each such
activity, (ii) the deliverables to be completed by Vendor, (iii)
the
anticipated date(s) by which each such activity or deliverable is
to be
completed (the “Transformation
Milestones”),
(iv) a
process and set of standards acceptable to the Parties to which Vendor
will adhere in the performance of the Transformation Services and
that
will enable the Parties to determine whether Vendor has successfully
completed the transformation and the activities and deliverables
associated with each Transformation Milestone; provided, however,
that to
the extent the Transformation Plan does not contain any such criteria
for
any given Transformation Milestone, then successful completion of
such
Transformation Milestone shall be subject to approval by TXUED, such
approval not to be unreasonably withheld or delayed under the
circumstances, (v) a process for TXUED to delay Vendor from proceeding
with any part of the transformation, either current or future plans,
or to
alter the timing for implementation,
with appropriate modifications of Transformation Milestones (if
necessary),
of
parts of the Services if TXUED determines that any part of the
transformation poses a risk or hazard to TXUED’s business interests, (vi)
the
contingency or risk mitigation strategies to be employed by Vendor
in the
event of disruption or delay, (vii)
any
transformation responsibilities to be performed or transformation
resources to be provided by TXUED and (viii) a detailed work plan
identifying the specific transformation activities to be performed
by
Vendor Personnel during the Transformation Period at the individual
or
team level and on such periodic basis as agreed upon by the Parties,
in
each case as appropriate.
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(j)
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Performance.
Vendor and TXUED shall perform the Transformation Services described
in
the Transformation Plan in accordance with the Transformation Milestones.
Vendor shall use commercially reasonable efforts to provide all
cooperation and assistance reasonably required or requested by TXUED
in
connection with TXUED’s evaluation or testing of the deliverables set
forth in the Transformation Plan. Vendor shall perform the Transformation
Services in a professional and workmanlike manner that, except as
may be
expressly provided otherwise in the Transformation Plan, will not
(i)
materially adversely impact the business or operations of TXUED,
(ii)
materially degrade the Services then being received by TXUED or (iii)
materially interfere with the ability of TXUED to obtain the Services,
except as may be otherwise provided in the Transformation Plan. Prior
to
undertaking any transformation activity, Vendor shall discuss with
TXUED
all TXUED-specific material risks known to Vendor and shall not proceed
with such activity until TXUED is reasonably satisfied with the plans
with
regard to such risks. Vendor shall identify and resolve, with TXUED’s
reasonable assistance, any problems that may impede or delay the
timely
completion of each task in the Transformation Plan that is Vendor’s
responsibility and shall use commercially reasonable efforts to assist
TXUED with the resolution of any problems that may impede or delay
the
timely completion of each task in the Transformation Plan that is
TXUED’s
responsibility. The
transformation and the activities and deliverables associated with
individual Transformation Milestones shall be deemed complete if
they
successfully meet the measurable success criteria identified in the
Transformation Plan; provided, however, that to the extent the
Transformation Plan does not contain any such criteria for any given
Transformation Milestone, then successful completion of the
transformation and the activities and deliverables associated with
individual Transformation Milestones shall be subject to approval
by
TXUED, such approval not to be unreasonably
withheld.
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TXUED
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EXECUTION
COPY
AMENDED
AND RESTATED
FIELD
SERVICES AGREEMENT
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(k)
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Reports/Meetings.
Vendor shall meet with TXUED, as reasonably requested by TXUED, to
report
on its progress in performing its responsibilities and meeting the
timetable set forth in the Transformation Plan. Vendor also shall
provide
written reports to TXUED regarding such matters, and shall provide
oral
reports, each as reasonably requested by TXUED. Promptly upon receiving
any information indicating that Vendor may not perform its
responsibilities or meet the timetable set forth in the Transformation
Plan, Vendor shall notify TXUED in writing of material delays and
shall
identify for TXUED’s consideration and approval specific measures to
address such delay and mitigate the risks associated
therewith.
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4.3
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Termination
Assistance Services. Upon
notice in accordance with Section
4.2(b)
of
the Master Agreement, clauses (a) through (d) of this Section shall
apply.
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(a)
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General.
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(i)
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Scope.
For purposes of this Services Agreement, Termination Assistance Services
shall include the Termination Assistance Services described in this
Section
4.3
as
well as Schedule
I.
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(ii)
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General
Support.
Vendor shall provide TXUED with a written termination assistance
plan
describing the Termination Assistance Services to be provided to
TXUED (a
“Termination
Assistance Plan”).
Such Termination Assistance Plan shall be subject to mutual agreement
by
the Parties, and shall describe, among other subjects, the obligations
and
responsibilities of each of Vendor and TXUED, including Vendor’s
obligation to (A) continue to provide the Services in effect immediately
prior to the commencement of Termination Assistance Services, until
such
time as the Services are transitioned from Vendor to TXUED or to
TXUED’s
designee(s) (subject to Section
4.2(d)
of
the Master Agreement), (B) develop facilities planning, systems planning,
human resources planning and other planning necessary to effect the
transition, (C) perform consulting services as requested to assist
in
implementing the Termination Assistance Plan, (D) train personnel
designated by TXUED in the use of any Resources used in connection
with
the provision of the Services that will be transitioned to TXUED
or its
designee, (E) catalog all Resources, TXUED Data and Third Party Contracts
necessary to provide the Services, (F) analyze and report on any
requirements needed for the TXUED Data and the Software necessary
to
provide the Services, (G) assist in the execution of a parallel operation,
data migration and testing process until the transition to TXUED
has been
successfully completed, (H) create and provide copies of the TXUED
Data in
the format and on the media reasonably requested by TXUED, (I) provide
a
complete and up-to-date electronic copy of the Policy and Procedures
Manual in the format and on the media reasonably requested by TXUED
and
(J) provide other business process assistance as requested by
TXUED.
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AMENDED
AND RESTATED
FIELD
SERVICES AGREEMENT
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(iii)
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Fees
for Termination Assistance Services.
TXUED shall pay Vendor for Termination Assistance Services as set
forth in
Exhibit
11
to
the Master Agreement.
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(iv)
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Asset
Maintenance. Vendor
shall maintain all assets necessary to perform the Services during
the
term of this Services Agreement.
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(b)
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Rights
Upon Expiration or any Termination.
Upon TXUED’s request:
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(i)
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Upon
completion of the Termination Assistance Services with respect to
any
Vendor Owned Materials that are not generally available and are necessary
to provide the Services and not otherwise sold to TXUED in accordance
with
clause (iv) below (excluding labor, CableCure® Technology, the Vendor ERP
System and off-the-shelf Materials that are generally commercially
available), Vendor shall, and shall cause Vendor’s Affiliates to, deliver
to TXUED or its designee(s) a copy of such Vendor Owned Materials
and
related documentation in the form in use to provide the Services,
and
TXUED shall have the rights described in Section
12.2(c)
in
respect of such Vendor Owned Materials for a fee reflecting the fair
market value of the license, as shall be determined by an agreed-upon
appraisal. Commencing upon the completion of the Termination Assistance
Services, Vendor shall, and shall cause Vendor’s Affiliates to, offer
TXUED and its designee(s) maintenance, support and other services
for such
Vendor Owned Materials on reasonable commercial terms and conditions
for a
term not to exceed two (2) years and for reasonable fees and
charges.
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(ii)
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Upon
completion of the Termination Assistance Services, with respect to
all
Vendor Licensed Materials that are not generally available and are
necessary to provide the Services and not otherwise transferred or
assigned to TXUED in accordance with clause (iii) below (excluding
labor,
CableCure® Technology, the Vendor ERP System and off-the-shelf Materials
that are generally commercially available), Vendor shall, and shall
cause
Vendor’s Affiliates to, to the extent permitted under Vendor’s agreements
with third parties that are not Vendor’s Affiliates, deliver to TXUED or
its designee(s) a copy of such Vendor Licensed Materials (including
source
code) and related documentation in the form in use to provide the
Services, and TXUED shall have those rights described in Section
12.2(d)
in
respect of such Vendor
Licensed Materials. Any such sublicense shall be subject to the
following:
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TXUED
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AMENDED
AND RESTATED
FIELD
SERVICES AGREEMENT
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(1)
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TXUED’s
and its designee(s)’s use of such Vendor Licensed Materials shall be
subject to the license terms governing such Vendor Licensed Materials
of
which TXUED is made aware;
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(2)
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TXUED
shall be responsible for its designee’s failure to comply with such
license terms; and
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(3)
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TXUED
agrees, under and in accordance with Section
15.4
of
the Master Agreement, to indemnify, defend and hold harmless Vendor,
Vendor’s Affiliates and their officers, directors, employees, agents,
representatives, successors and assigns from and against any and
all
Losses due to third party claims arising from or in connection with
violation of such license terms by TXUED or its
designee(s).
|
Commencing
upon the completion of the Termination Assistance Services, Vendor shall, and
shall cause Vendor’s Affiliates to, at TXUED’s or its designee(s)’ option and
expense, use commercially reasonable efforts to arrange for maintenance, support
and other services to continue to be available to TXUED and its designee(s)
for
a reasonable term (to the extent it has been available to Vendor or Vendor’s
Affiliates) in respect of Vendor Licensed Materials that are sublicensed by
Vendor to TXUED or its designees.
|
(iii)
|
Upon
completion of the Termination Assistance Services, with respect to
any
Third Party Contracts for (A) any Vendor Licensed Materials (excluding
labor, CableCure® Technology, the Vendor ERP System and off-the-shelf
Materials that are generally commercially available), (B) any third
party
services and (C) any Vendor Licensed Resources (excluding labor,
CableCure® Technology, the Vendor ERP System and off-the-shelf Resources
that are generally commercially available), in each case which are
necessary to provide and are being used solely to provide the Services
to
TXUED, Vendor shall, and shall cause Vendor’s Affiliates to, (X) deliver
to TXUED or its designee(s) such Vendor Licensed Materials (including
source code) and such Vendor Licensed Resources (and any related
documentation) in the form in use to provide the Services and (Y)
transfer
or assign such Third Party Contracts to TXUED or its designee(s)
to the
extent such rights were obtained under Section
12.2(d) or Section 12.2(e),
as applicable. Commencing upon the completion of the Termination
Assistance Services, Vendor shall, and shall cause Vendor’s Affiliates to,
at TXUED’s or its designee(s)’ option and expense, use commercially
reasonable efforts to arrange for maintenance, support and other
services
to continue to be available to TXUED and its designee(s) for a reasonable
term (to the extent it has been available to Vendor or Vendor’s
Affiliates) in respect of such Vendor Licensed Materials and
Resources.
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(iv)
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Upon
completion of the Termination Assistance Services, with respect to
Vendor
Owned Resources (excluding labor, CableCure® Technology, the Vendor ERP
System and off-the-shelf Resources that are generally commercially
available, but including other Vendor Owned Materials) which are
not
generally available and are necessary to provide and being used solely
to
provide the Services to TXUED, Vendor shall, and shall cause Vendor’s
Affiliates to, (A) deliver to TXUED or its designee(s) such Vendor
Owned
Resources and any related documentation in the form in use to provide
the
Services, and (B) sell to TXUED or its designee(s) such Vendor Owned
Resources, free and clear of all liens, security interests or other
encumbrances. The sale of such Vendor Owned Resources shall be at
fair
market value, as shall be determined by an agreed-upon appraisal.
Commencing upon the completion of the Termination Assistance Services,
Vendor shall, and shall cause Vendor’s Affiliates to, offer TXUED and its
designee(s) maintenance, support and other services for any Vendor
Owned
Materials comprising such Vendor Owned Resources on reasonable commercial
terms and conditions for a term not to exceed two (2) years and for
reasonable fees and charges. In addition, Vendor shall, and shall
cause
Vendor’s Affiliates to, at TXUED’s or TXUED’s designee(s)’ option and
expense, use commercially reasonable efforts to arrange for maintenance,
support and other services to continue to be available to TXUED and
its
designee(s) for a reasonable term (to the extent it has been available
to
Vendor or Vendor’s Affiliates) in respect of all other Vendor Owned
Resources that are sold to TXUED.
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|
(v)
|
In
the event that the Master Agreement or this Services Agreement is
terminated by TXUED for Vendor’s breach (including any termination by
TXUED under Section
18.1(a)
of
the Master Agreement or Section
14.1(a)
of
this Services Agreement), then Vendor (not TXUED) shall pay any
transfer,
assignment, switching, termination or other fees
or costs in connection with
(A) the transfer or assignment of any Third
Party Contracts
under Section
4.3(b)(iii)
and (B) the procurement of any new licenses under Section
4.3(b)(ii),
provided the rights granted under such new licenses are of the same
scope
as the rights granted to Vendor under its original
license.
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(c)
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Hiring
of Vendor Personnel.
Upon
TXUED’s request, with respect to the Vendor Personnel performing the
applicable Termination Assistance Services, Vendor shall not terminate
(except for Cause, as such term is defined in Exhibit
2
to
the Master Agreement), reassign or otherwise remove from TXUED’s account
any such Vendor Personnel until after the end of the applicable
Termination Assistance Services period. Notwithstanding Section
19.16
of
the Master Agreement, upon TXUED’s request, with respect to the Vendor
Personnel the primary responsibilities of which involve performing
the
applicable Termination Assistance Services but excluding any such
vendor
personnel who were employees of InfrastruX Group, Inc. or any of
its
Affiliates immediately prior to the Services Agreement Effective
Date (the
“Affected
Vendor Personnel”),
Vendor shall not (i) terminate (except for Cause, as such term is
defined
in Exhibit
2
to
the Master Agreement), reassign or otherwise remove from TXUED’s account
any Affected Vendor Personnel until after the end of the applicable
Termination Assistance Services period and (ii) to the extent not
prohibited by Law: (A) provide TXUED with each Affected Vendor Personnel’s
name, position and title and a description of job responsibilities
and
compensation package; (B) provide TXUED and its designee(s) full
access to
such Affected Vendor Personnel; and (C) allow TXUED and its designee(s)
to
meet with, solicit and hire such Affected Vendor Personnel without
interference (including counter-offers) from Vendor or Vendor’s
Affiliates. Vendor shall, and shall cause Vendor’s Affiliates to, waive
its rights, if any, under contracts with such personnel restricting
the
ability of such personnel to be recruited or hired by TXUED (including
waiving any right to restrict such personnel via non-compete agreements
or
other contractual means). TXUED shall conduct the above-described
hiring
activity in a manner that is not unnecessarily disruptive of the
performance by Vendor of its obligations under this Services
Agreement.
|
|
(d)
|
Termination
Assistance Services Upon Partial Termination.
If there is a partial termination of this Services Agreement or a
resourcing or insourcing of any Services under this Services Agreement
(to
the extent expressly permitted by this Agreement), then Sections
4.2(a),
4.2(b)
and 4.2(c)
shall apply only with respect to the Services being so terminated,
resourced or insourced and only to the extent the applicable Resources,
Materials, Third Party Contracts or Vendor Personnel are not needed
by
Vendor to provide the remaining
Services.
|
|
4.4
|
Use
of Third Parties.
|
|
(a)
|
Vendor
Cooperation.
Vendor shall fully cooperate with and work in good faith with TXUED
or
TXUED Third Party Contractors as described in Schedule
E
or
requested by TXUED. Such cooperation may include: (i) timely providing
access to any facilities being used to provide the Services, as necessary
for TXUED Personnel or TXUED Third Party Contractors to perform the
work
assigned to them, provided that TXUED shall ensure that all TXUED
Personnel and TXUED Third Party Contractors comply with Vendor’s policies,
rules and regulations applicable to Vendor Facilities (including
with
respect to security, confidentiality and regulatory issues) of which
TXUED
has been provided prior notice, (ii) timely providing reasonable
electronic and physical access to the business processes and Resources
(other than facilities) used by Vendor to provide the Services to
the
extent necessary and appropriate for TXUED Personnel or TXUED Third
Party
Contractors to perform the work assigned to them, provided that TXUED
shall ensure that all TXUED Personnel and TXUED Third Party Contractors
comply with Vendor’s policies, rules and regulations applicable to such
business processes and Resources (including with respect to security,
confidentiality and regulatory issues) of which TXUED has been provided
prior notice, (iii) timely providing written requirements, standards,
policies or other documentation for the business processes used by
Vendor
in connection with the Services or (iv) any other cooperation or
assistance reasonably necessary for TXUED Personnel or TXUED Third
Party
Contractors to perform the work in question. TXUED Personnel and
TXUED
Third Party Contractors shall, to the extent performing work on Resources
owned, licensed or leased by Vendor and used by Vendor to provide
the
Services, comply with Vendor’s reasonable standards, methodologies and
procedures of which Vendor has provided TXUED with prior written
notice.
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(b)
|
Notice
by Vendor.
Vendor shall immediately notify TXUED when it becomes aware that
an act or
omission of an TXUED Third Party Contractor will cause, or has caused,
a
problem or delay in providing the Services, and shall use commercially
reasonable efforts to work with TXUED and the TXUED Third Party Contractor
to prevent or circumvent such problem or delay. Vendor shall cooperate
with TXUED and TXUED Third Party Contractors to resolve differences
and
conflicts arising between the Services and other activities undertaken
by
TXUED or TXUED Third Party
Contractors.
|
|
4.5
|
Employee
Transfers.
The transitioning of TXUED’s employees to Vendor under this Services
Agreement shall be effected in accordance with Exhibit
2
to
the Master Agreement and Schedule
M.
|
|
4.6
|
Operational
and Financial Responsibility.
The Parties shall comply with their respective obligations in Schedule
E.1.
|
|
5.
|
FACILITIES,
ASSIGNED AGREEMENTS AND REQUIRED
CONSENTS
|
|
5.1
|
TXUED
Facilities.
|
|
(a)
|
Furniture,
Fixtures and Equipment.
Commencing on the Services Agreement Effective Date and continuing
for so
long as Vendor requires the same for the performance of the Services,
Vendor may use the TXUED office furniture and fixtures located as
of the
Services Agreement Effective Date in the portions of the TXUED Facilities
that Vendor is entitled to use pursuant to Section
6.1(b)
of
the Master Agreement. Vendor shall be financially responsible for
providing all other office furniture and fixtures needed by Vendor
or
Vendor Personnel (including Transitioned Employees) to provide the
Services, and for all Upgrades, replacements and additions to any
office
furniture or fixtures used by Vendor to provide the Services; provided
that any material Upgrades, replacements and additions to any office
furniture and fixtures at any TXUED Facilities must be approved in
advance
by TXUED and meet TXUED’s then-current standards; and provided further
that Vendor may, if commercially reasonable, purchase and use surplus
TXUED furniture and fixtures to the extent available. Vendor
Personnel using TXUED Facilities will be accorded reasonable access
to the
communications wiring in such facilities (including fiber, copper
and wall
jacks, subject to Section
5.1(c))
and the use of certain shared office equipment and services, such
as
photocopiers, local and long distance telephone service for TXUED-related
calls, telephone handsets, mail service, office support service (e.g.,
janitorial), heat, light and air conditioning. Any office furniture
or
office related equipment provided by Vendor, and all Upgrades,
replacements and additions to such office furniture or equipment,
shall be
owned by Vendor and removed by Vendor upon Vendor no longer needing
any
TXUED Facility for the provision of Services to TXUED (subject to
TXUED’s
rights in Section
6.1(d)
of
the Master Agreement).
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(b)
|
Vendor’s
Responsibilities Regarding TXUED’s Network.
To the extent any Equipment provided or used by Vendor or Vendor
Personnel
is connected directly to the network(s) of TXUED, such Equipment
shall be
subject to (i) review in advance by TXUED, (ii) in compliance with
TXUED’s
then current security policies, architectures, standards, rules and
procedures and (iii) in compliance with the current Policy and Procedures
Manual and the hardware and software specifications in the Policy
and
Procedures Manual.
|
|
(c)
|
Employee
Services.
Subject to applicable security requirements, TXUED will permit Vendor
Personnel to use certain employee facilities (e.g., designated parking
facilities, cafeteria and common facilities) at the TXUED Facilities
that
are generally made available to the employees and contractors of
TXUED.
The employee facilities in question and the extent of Vendor Personnel’s
permitted use shall be specified in writing by TXUED and shall be
subject
to modification, in TXUED’s sole discretion, upon advance notice as is
reasonable under the circumstances or required under applicable Law.
Vendor Personnel will not be permitted to use employee facilities
designated by TXUED for the exclusive use of certain TXUED employees
and
will not be entitled to the provision or reimbursement of paid
parking.
|
|
5.2
|
Vendor
Facilities.
|
|
(a)
|
Furniture,
Fixtures and Equipment.
The office space and office furniture provided by Vendor for the
use of
TXUED Personnel at Vendor Facilities will be generally comparable
to the
then standard office space and office furniture provided to similarly
situated Vendor employees. TXUED shall be financially responsible
for
providing all Upgrades, replacements and additions to such office
furniture or fixtures; provided that any material Upgrades, replacements
and additions to such office furniture and fixtures at any Vendor
Facilities must be approved in advance by Vendor and meet Vendor’s then
current standards; and provided further that TXUED may, if commercially
reasonable, purchase and use surplus Vendor furniture and fixtures
to the
extent available. TXUED
Personnel using Vendor Facilities will be accorded reasonable access
to
the communications wiring in such facilities (including fiber, copper
and
wall jacks, subject to Section
5.2(c))
and the use of certain shared office equipment and services, such
as
photocopiers, local and long distance telephone service, telephone
handsets, mail service, office support service (e.g., janitorial),
heat,
light and air conditioning. Any office furniture or office related
equipment provided by TXUED, and all Upgrades, replacements and additions
to such office furniture or equipment, shall be owned by TXUED and
removed
by TXUED upon TXUED no longer occupying any Vendor
Facility.
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(b)
|
TXUED’s
Responsibilities Regarding Vendor’s Network.
To the extent any Equipment provided or used by TXUED or TXUED Personnel
is connected directly to the network(s) of Vendor, such Equipment
shall be
(i) subject to review in advance by Vendor, (ii) in compliance with
Vendor’s then current security policies, architectures, standards, rules
and procedures and (iii) in compliance with the current Policy and
Procedures Manual and the hardware and software specifications in
the
Policy and Procedures Manual.
|
|
(c)
|
Employee
Services.
Subject to applicable security requirements, Vendor will permit TXUED
Personnel to use certain employee facilities (e.g., designated parking
facilities, cafeteria and common facilities) at the Vendor Facilities
that
are generally made available to the employees and contractors of
Vendor.
The employee facilities in question and the extent of TXUED Personnel’s
permitted use shall be specified in writing by Vendor and shall be
subject
to modification, in Vendor’s sole discretion, upon advance notice as is
reasonable under the circumstances or required under applicable Law.
TXUED
Personnel will not be permitted to use employee facilities designated
by
Vendor for the exclusive use of certain Vendor employees and will
not be
entitled to the provision or reimbursement of paid
parking.
|
|
5.3
|
Reserved.
|
|
5.4
|
Assignment
of Third Party Contracts.
Upon the Services Agreement Commencement Date, Vendor will assume
operational and financial responsibility for the Third Party Contracts
set
forth on Schedule
F
(collectively, the “Assigned
Agreements”),
provided, however, that, except as otherwise licensed to Vendor under
this
Services Agreement, such assignment shall not include any assignment
or
transfer of any rights, title or interest in, to or under Resources
acquired, obtained, made, created, built, constructed or developed
under
such Assigned Agreements prior to the date of such assignment and,
as
between the Parties, TXUED hereby expressly reserves and retains
such
rights. Subject to TXUED obtaining any TXUED Required Consents, the
Assigned Agreements will be novated or assigned to
Vendor.
|
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5.5
|
Managed
Third Party Agreements.
|
|
(a)
|
Vendor
shall manage, administer and maintain the Managed Third Party Agreements.
Vendor shall provide TXUED with reasonable notice of any renewal,
termination or cancellation dates and fees with respect to the Managed
Third Party Agreements. Vendor shall not renew, modify, terminate
or
cancel, or request or grant any consents or waivers under, any Managed
Third Party Agreements without the consent of the TXUED Account Executive.
Any Losses incurred by or obligations imposed on TXUED in connection
with
(i) any such renewal, modification, termination or cancellation of,
or
consent or waiver under, the Managed Third Party Agreements, obtained
or
given without TXUED’s consent, or (ii) Vendor’s failure to comply with the
terms of the Managed Third Party Agreements shall be paid or discharged,
as applicable, by Vendor, except to the extent such Losses are caused
by
TXUED.
|
|
(b)
|
Vendor
shall (i) receive all invoices in respect of Managed Third Party
Agreements (“Managed
Invoices”),
(ii) review and correct any errors in any such Managed Invoices in
a
timely manner and (iii) submit such Managed Invoices to TXUED within
a
reasonable period of time prior to the due date or, if a discount
for
payment is offered, the date on which TXUED may pay such Managed
Invoice
with a discount. TXUED shall pay the Managed Invoices received and
approved by Vendor. TXUED shall only be responsible for payment of
the
Managed Invoices and shall not be responsible to Vendor for any
management, administration or maintenance fees of Vendor in connection
with the Managed Invoices. TXUED shall be responsible for any late
fees in
respect of the Managed Invoices, provided that Vendor submitted the
applicable Managed Invoices to TXUED for payment within a reasonable
period of time prior to the date any such Managed Invoice is due
or the
date on which TXUED may pay with a discount, but in no event later
than
fifteen (15) days prior to the due date of such Managed Invoice.
If Vendor
fails to submit a Managed Invoice to TXUED for payment in accordance
with
the preceding sentence, Vendor shall be responsible for any discount
not
received or any late fees in respect of such Managed
Invoice.
|
|
5.6
|
Reserved.
|
|
5.7
|
Required
Consents.
|
|
(a)
|
“Vendor Required
Consents”
shall mean all licenses, consents, permits, approvals, authorizations
and
other actions that are necessary for Vendor to provide the Services
or
which allow, among other things, (a) Vendor and Vendor Personnel to
use any third party services procured by Vendor to provide the Services,
(b) Vendor and Vendor Personnel the right to use any Resources in
connection with providing the Services, (c) TXUED and TXUED Personnel
to exercise their rights under this Services Agreement in respect
of
Vendor owned, leased or licensed Resources and (d) Vendor to assign
to TXUED the Work Product paid for entirely by TXUED. Vendor shall
be
administratively and, except as otherwise provided in this Services
Agreement, financially responsible for obtaining and maintaining
all
Vendor Required Consents (e.g., for any transfer or Upgrade fees),
and
each Party shall be responsible for complying with all Vendor Required
Consents. TXUED
will cooperate with Vendor in obtaining all Vendor Required Consents.
|
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(b)
|
“TXUED Required
Consents”
shall mean all consents, permits, approvals, authorizations and other
actions that are necessary for TXUED to assign the Assigned Agreements
to
Vendor and Vendor to manage and administer the Managed Third Party
Agreements in accordance with this Agreement or for Vendor to exercise
its
rights under this Services Agreement in respect of TXUED owned, leased
or
licensed Resources. TXUED shall be administratively and financially
responsible for obtaining and maintaining all TXUED Required Consents,
and
each Party shall be responsible for complying with all TXUED Required
Consents. Vendor will cooperate with TXUED in obtaining all TXUED
Required
Consents.
|
|
(c)
|
If,
despite using all reasonable efforts, TXUED is unable to obtain an
TXUED
Required Consent or Vendor is unable to obtain a Vendor Required
Consent,
then, unless and until such TXUED Required Consent or Vendor Required
Consent is obtained, Vendor shall use all reasonable efforts to determine
and adopt, subject to TXUED’s prior approval, such alternative approaches
as are necessary and sufficient to provide the Services without such
TXUED
Required Consent or Vendor Required Consent, as applicable (including,
with respect to any Assigned Agreement, Vendor managing the agreement
as a
Managed Third Party Agreement, to the extent contractually and legally
possible). TXUED will be responsible for the financial costs of such
alternative approaches to the extent they arise from TXUED’s failure to
obtain any TXUED Required Consent, and Vendor will be responsible
for the
financial costs of such alternative approaches to the extent they
arise
from Vendor’s failure to obtain any Vendor Required Consent. If such
alternative approaches are required for a period longer than ninety
(90)
days following the Services Agreement Effective Date, the Parties
shall
equitably adjust the terms and reduce the Charges to reflect any
additional costs being incurred by either
Party.
|
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6.
|
SERVICE
LEVELS
|
|
6.1
|
General.
|
|
(a)
|
Service
Level Performance Standards.
Beginning on the dates specified in Schedule
G,
Vendor
shall perform the Services so as to meet or exceed the Service Levels
as
set
forth in Schedule
G.
|
|
(b)
|
Multiple
Service Levels.
If more than one Service Level applies to any particular obligation
of
Vendor, Vendor shall perform in accordance with the most stringent
of such
Service Levels.
|
|
6.2
|
***
|
|
7.
|
RESERVED.
|
|
8.
|
VENDOR
RESPONSIBILITIES.
|
|
8.1
|
Policy
and Procedures Manual.
|
|
(a)
|
Delivery
and Contents.
Vendor shall deliver to TXUED for its review, comment and approval
(i) an
outline of the topics to be addressed in the Policy and Procedures
Manual
within ninety (90) days after the Services Agreement Commencement
Date,
and (ii) a final draft of the Policy and Procedures Manual within
one
hundred eighty (180) days after the Services Agreement Commencement
Date
(the “Policy
and Procedures Manual”).
At a minimum, the Policy and Procedures Manual shall include the
following:
|
|
(i)
|
a
detailed description of the Services and the manner in which each
will be
performed by Vendor, including (A) documentation (including policies
and
procedures, and disaster recovery plans) providing further details
regarding such Services, and (B) the specific activities to be undertaken
by Vendor in connection with each Service, including, where appropriate,
the direction, supervision, monitoring, staffing, reporting, planning
and
oversight activities to be performed by Vendor under this Services
Agreement;
|
***CONFIDENTIAL
MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
TXUED
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(ii)
|
the
procedures for TXUED/Vendor interaction and communication, including
(A)
call lists, (B) procedures for and limits on direct communication
by
Vendor with TXUED Personnel, (C) problem management and escalation
procedures, (D) priority procedures, (E) Acceptance testing and
procedures, (F) quality assurance procedures and checkpoint reviews
and
(G) annual and quarterly financial objectives, budgets and performance
goals; and
|
|
(iii)
|
practices
and procedures addressing such other issues and matters as TXUED
shall
reasonably require.
|
|
(b)
|
Revision
and Maintenance.
Vendor shall incorporate any reasonable comments or suggestions of
TXUED
into the Policy and Procedures Manual and shall deliver a final revised
version to TXUED within thirty (30) days of its receipt of such comments
and suggestions for TXUED’s approval. The Policy and Procedures Manual
will be delivered and maintained by Vendor in hard copy and electronic
formats and will be accessible electronically by TXUED Personnel
in a
manner consistent with TXUED’s security policies.
|
|
(c)
|
Compliance.
Vendor shall perform the Services in accordance with TXUED’s then current
policies and procedures until the Policy and Procedures Manual is
finalized and agreed upon by the Parties. Thereafter, Vendor shall
perform
the Services in accordance with the Policy and Procedures Manual,
as may
be amended. In the event of a conflict between the provisions of
this
Services Agreement and the Policy and Procedures Manual, the provisions
of
this Services Agreement shall control unless the Parties expressly
agree
otherwise and such agreement is set forth in the relevant portion
of the
Policy and Procedures Manual.
|
|
(d)
|
Modification
and Updating.
Subject to the Change Control Process, Vendor
shall modify and update the Policy and Procedures Manual to reflect
changes in the operations or procedures described therein and to
comply
with TXUED Rules and TXUED Standards
of
which Vendor has been notified.
Vendor shall make such modifications and updates within an appropriate
period of time given the nature and urgency of the change(s), and
any
resulting changes to the Services shall be addressed through the
Change
Control Process. Vendor shall provide the proposed changes in the
Policy
and Procedures Manual to TXUED for review, comment and approval.
To the
extent such change could (i) increase TXUED’s total costs of receiving the
Services, (ii) require material changes to TXUED’s owned, licensed or
leased Resources, (iii) have a material adverse impact on the performance,
accuracy, speed, responsiveness, quality or resource efficiency of
the
Services or (iv) violate or be inconsistent with the TXUED Rules
and TXUED
Standards, Vendor shall not implement such change without first obtaining
TXUED’s approval.
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8.2
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Government
Contract Flow-Down Clauses.
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(a)
|
General.
The Parties acknowledge and agree that, as a matter of federal procurement
law, Vendor may be deemed a “subcontractor” to TXUED under one or more of
their contracts with the federal government, that the Services provided
or
to be provided by Vendor in such circumstances constitute “commercial
items” as that term is defined in the Federal Acquisition Regulation, 48
C.F.R. Section 52.202, and that “subcontractors” providing “commercial
items” under government contracts are subject to certain mandatory
“flow-down” clauses (currently, (i) Equal Opportunity, (ii) Affirmative
Action for Special Disabled and Vietnam Era Veterans and (iii) Affirmative
Action for Handicapped Workers) under the Federal Acquisition Regulation,
48 C.F.R. Section 52.244-6. The Parties agree that, insofar as those
clauses are required to be flowed down to Vendor, any changes to
this
Agreement shall
be addressed through the Change Control Process.
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(b)
|
Special
Requirements.
The Parties do not believe that the Services provided by Vendor under
this
Services Agreement will be subject to government flow-down requirements
other than those associated with any subcontracts for commercial
items.
Should compliance by Vendor with additional flow-down provisions
nevertheless be required by the federal government in certain
circumstances, Vendor shall comply with such additional flow-down
provisions and the Parties shall address the additional consideration,
if
any, to be paid to Vendor in such circumstances through the Change
Control
Process.
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(c)
|
Special
Purchases Support.
TXUED’s intent is to purchase products and services from Small
Disadvantaged Businesses and Small Woman Owned Businesses (collectively
“SDBs”)
in order to satisfy its goals and comply with government procurement
laws
and regulations. To help TXUED achieve its goals, Vendor agrees to
establish as a goal the purchase, when commercially feasible, of
products
and services from SDBs, on behalf of TXUED, in the performance of
Vendor’s
obligations under this Services Agreement. Vendor, as part of the
Services, shall track invoice payments made to SDBs, and shall submit
a
quarterly summary to TXUED with respect to such
activity.
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8.3
|
Unauthorized
Use.
TXUED and Vendor shall cooperate fully in efforts to prevent and
cure
unauthorized use of the Services by expeditiously informing each
other of
suspected abuse and, when known, the identity of the responsible
individuals. Vendor shall advise TXUED regarding methods to minimize
TXUED’s exposure to misuse and abuse of the Services. Vendor shall provide
assistance to TXUED upon TXUED’s request in Vendor’s efforts to minimize
ongoing misuse or abuse through timely reconfiguration and limitation
of
the Services. Appropriate representatives of Vendor, TXUED and Eligible
Recipient shall meet at the request of TXUED to establish appropriate
operational fraud control procedures. The Parties acknowledge and
agree
that Vendor’s performance of its obligations under this
Section shall
be subject to and in accordance with applicable Privacy
Laws.
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8.4
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Interface.
In performing the Services, subject to the Change Control Process,
Vendor
shall use Resources and business processes that interface and integrate
with the Retained Resources and Business Processes without (i)
materially adversely impacting the business or operations of TXUED,
(ii)
materially degrading the Services then being received by TXUED, (iii)
materially interfering with the ability of TXUED to obtain the
Services
or
(iv) increasing TXUED’s total costs of receiving the
Services.
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9.
|
TXUED
RESPONSIBILITIES.
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|
9.1
|
TXUED
Service Delivery Executive.
TXUED shall designate one (1) individual to whom all Vendor communications
concerning this Services Agreement shall be addressed (the “TXUED
Service Delivery Executive”),
who shall have the authority to act on behalf of TXUED in all day-to-day
matters pertaining to this Services Agreement. TXUED may change the
designated TXUED Service Delivery Executive by providing notice to
Vendor.
Additionally, (i) TXUED shall be entitled to designate additional
representatives who will be authorized to make certain decisions
(e.g.,
regarding emergency maintenance) if the TXUED Service Delivery Executive
is not available and (ii) the TXUED Service Delivery Executive shall
be
entitled to delegate any of his or her rights and obligations to
one or
more designees upon prior notice to Vendor. Vendor is entitled to
rely
upon instructions given by the TXUED Service Delivery Executive or
any
other individual designated to have decision-making authority in
accordance with this Section.
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9.2
|
Cooperation.
In
connection with the transition of the Services to Vendor and the
transformation of the Services, TXUED shall use commercially reasonable
efforts to provide all cooperation and assistance reasonably required
or
requested by Vendor in connection with Vendor’s completion of such
transition and the Transition Plan as well as such transformation
and the
Transformation Plan. In accordance with the governance policies and
procedures set forth in Exhibit
8
to
the Master Agreement, TXUED will cooperate with Vendor in good faith
to
define and execute the completion of all necessary approvals, agencies
and
authorities to carry on the daily activities of the processes set
forth in
this Services Agreement.
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10.
|
CHARGES.
|
|
10.1
|
Reserved.
|
|
10.2
|
***
|
***CONFIDENTIAL
MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
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11.
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RESERVED.
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|
12.
|
OWNERSHIP
OF MATERIALS.
|
|
12.1
|
TXUED
Owned Resources.
|
|
(a)
|
Ownership
of TXUED Resources.
As between the Parties, TXUED shall be the sole and exclusive owner
of:
(i) all Resources lawfully owned by TXUED or TXUED’s Affiliates prior to
the Services Agreement Effective Date; (ii) all Resources acquired
by
TXUED or TXUED’s Affiliates on or after the Services Agreement Effective
Date; (iii) all TXUED Standards and all TXUED Rules; (iv) except
as
otherwise agreed by the Parties in any Work Request, all Work Product
that
is paid for entirely by TXUED; and (v) all modifications, enhancements,
improvements and Upgrades to and Derivative Works of such Resources,
the
TXUED Standards, the TXUED Rules and such Work Product (collectively,
“TXUED
Owned Resources”),
including all worldwide intellectual property rights in the TXUED
Owned
Resources. Any TXUED Owned Resources that are acquired,
obtained, made, created, built, constructed or developed by or on
behalf
of Vendor shall
be considered
to be works made for hire (as that term is used in Section
101
of
the United States Copyright Act, 17 U.S.C. § 101, or in analogous
provisions of other applicable Laws) and owned by TXUED. If any such
TXUED
Owned Resources
may not be considered a work made for hire under applicable Law,
Vendor
hereby irrevocably assigns, and shall assign, to TXUED without further
consideration, all of Vendor’s rights, title and interest in, to and under
such TXUED
Owned Resources,
including all worldwide intellectual property rights in
such TXUED Owned Resources.
Vendor acknowledges that TXUED and the successors and assigns of
TXUED
shall have the right to obtain and hold in their own names all rights,
title and interest in, to and under any TXUED Owned
Resources.
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|
(b)
|
License
to TXUED Owned Resources.
As of the Services Agreement Commencement Date, TXUED hereby grants
to
Vendor and, to the extent necessary for Vendor to provide the Services,
to
Subcontractors designated by Vendor that sign a written agreement
to be
bound by all of the terms contained herein applicable to such Resources
(which agreement shall include the terms specified in this Section
as well
as those pertaining to the ownership of such Resources, the scope
and term
of the license, the restrictions on the use of such Resources, the
obligations of confidentiality, etc.), for the sole purpose of providing
the Services, a non-exclusive, non-transferable, royalty-free right
and
license during the Services Agreement Term to access, use, practice,
make,
have made, operate, copy, execute, reproduce, display, perform,
distribute, modify, maintain, upgrade, store and create Derivative
Works
of the TXUED Owned Resources that are provided by TXUED to Vendor.
Vendor
shall have no right to the source code to any TXUED Owned Resources
unless
and to the extent approved in advance by TXUED. Except as otherwise
approved by TXUED, which
approval will not be unreasonably withheld
or
delayed under the circumstances,
Vendor shall not (i) use any TXUED Owned Resources for the benefit of
any person or Entity other than TXUED, (ii) separate or uncouple
any
portions of any Software comprising the TXUED Owned Resources, in
whole or
in part, from any other portions thereof or (iii) reverse assemble,
reverse engineer, translate, disassemble, decompile or otherwise
attempt
to create or discover any source or human readable code, underlying
algorithms, ideas, file formats, trade secrets or programming interfaces
of any Software comprising the TXUED Owned Resources by any means
whatsoever. Except as otherwise requested or approved by TXUED, Vendor
shall cease all use of TXUED Owned Resources upon the end of the
Services
Agreement Term.
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(c)
|
License
to TXUED Licensed Resources.
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|
(i)
|
As
of the Services Agreement Commencement Date, to the extent permitted
under
the applicable third party contracts, TXUED hereby grants to Vendor
and,
to the extent necessary for Vendor to provide the Services, to
Subcontractors designated by Vendor that sign a written agreement
to be
bound by all of the terms contained herein applicable to such Resources
(which agreement shall include the terms specified in this Section
as well
as those pertaining to the ownership of such Resources, the scope
and term
of the license, the restrictions on the use of such Resources, the
obligations of confidentiality, etc.), for the sole purpose of providing
the Services, a non-exclusive, non-transferable, royalty-free right
and
license during the Services Agreement Term to access, use, operate,
copy,
execute, reproduce, display, perform, distribute, modify, maintain,
upgrade, store and create Derivative Works of the TXUED Licensed
Resources
that are provided by TXUED to Vendor. Vendor shall have no right
to the
source code to any TXUED Licensed Resources unless and to the extent
approved in advance by TXUED. Except as otherwise approved by TXUED,
which
approval will not be unreasonably withheld or delayed under the
circumstances,
Vendor shall not (A) use any TXUED Licensed Resources for the benefit
of
any person or Entity other than TXUED, (B) separate or uncouple any
portions of any Software comprising the TXUED Licensed Resources,
in whole
or in part, from any other portions thereof or (C) reverse assemble,
reverse engineer, translate, disassemble, decompile or otherwise
attempt
to create or discover any source or human readable code, underlying
algorithms, ideas, file formats, trade secrets or programming interfaces
of any Software comprising the TXUED Licensed Resources by any means
whatsoever. Except as otherwise requested or approved by TXUED, Vendor
shall cease all use of TXUED Licensed Resources upon the end of the
Services Agreement Term.
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(ii)
|
Notwithstanding
anything to the contrary in clause (i) of this Section
12.1(c),
TXUED hereby approves Vendor’s use of the motor vehicles that are provided
by TXUED to Vendor and licensed pursuant to clause (i) of this
Section
12.1(c)
in
connection with Vendor’s provision of services to its other customers,
provided that Vendor may only use such motor vehicles pursuant to
clause
(i) of this Section
12.1(c)
for the remaining duration of the initial term of the applicable
leases
under which TXUED has leased such motor vehicles. Upon the earlier
to
occur of (A) the expiration of the initial term of the applicable
leases
under which TXUED has leased such motor vehicles and (B) the date
on which
Vendor no longer requires such motor vehicles to perform the Services
or
any services for Vendor’s other customers, Vendor shall promptly return
such motor vehicles to TXUED in substantially the same condition
as when
such motor vehicles were first provided to Vendor, subject to reasonable
wear and tear. Vendor’s use of such motor vehicles shall at all times be
in compliance with the terms of their applicable leases and applicable
Laws. Vendor hereby agrees, under and in accordance with Section
15.4
of
the Master Agreement, to indemnify, defend and hold harmless TXUED
and its
officers, directors, employees, agents, representatives, successors
and
assigns from and against any and all Losses due to third party claims
(excluding the claims of TXUED’s Affiliates and Eligible Recipients)
arising from or in connection with Vendor’s use of such motor
vehicles.
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|
(d)
|
Work
Product.
Prior
to initiating any Work Product that will not be entirely paid for
by
TXUED, Vendor shall notify TXUED and TXUED shall have five (5) business
days to notify Vendor in writing that such Work Product will be entirely
paid for by TXUED. If TXUED provides such notice, TXUED shall pay
all
amounts in connection with the acquisition,
creation, construction or development of
such Work Product. If TXUED fails to provide such notice or pay such
amounts, such Work Product shall not be owned by
TXUED.
|
|
12.2
|
Vendor
Owned Resources.
|
|
(a)
|
General.
As between the Parties, Vendor shall be the sole and exclusive owner
of
(i) all Resources lawfully owned by Vendor or Vendor’s Affiliates prior to
the Services Agreement Effective Date; (ii) all Resources acquired,
obtained, made, created, built, constructed or developed by or on
behalf
of Vendor or Vendor’s Affiliates on or after the Services Agreement
Effective Date (excluding any Work Product paid for entirely by TXUED);
and (iii) all modifications, enhancements, improvements and Upgrades
to
and derivative Works of such Resources (collectively, “Vendor
Owned Resources”),
including CableCure® Technology, the Vendor ERP System, and all worldwide
intellectual property rights in such Vendor Owned
Resources.
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(b)
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Vendor
Owned Items.
Notwithstanding Section
12.1(a)(iv)
and Section
12.1(a)(v),
modifications, enhancements, improvements and Upgrades to, and Derivative
Works of, Vendor Owned Resources that are acquired,
obtained, made, created, built, constructed or developed by or on
behalf
of Vendor
or
Vendor’s Affiliates as part of the Services shall be owned by Vendor. To
the extent that ownership in the Vendor Owned Resources does not
automatically vest in Vendor, then TXUED hereby irrevocably assigns,
and
shall assign, to Vendor without further consideration, all of TXUED’s
rights, title and interest in, to and under such Vendor Owned Resources,
including all worldwide intellectual property rights in such Vendor
Owned
Resources. TXUED acknowledges that Vendor and the successors and
assigns
of Vendor shall have the right to obtain and hold in their own names
all
rights, title and interest in, to and under any Vendor Owned
Resources.
|
|
(c)
|
License
to Vendor Owned Materials.
Effective upon Vendor’s first use of any Vendor Owned Materials (including
in each case all related documentation, processes and methodologies
but
excluding labor, CableCure® Technology, the Vendor ERP System and
off-the-shelf
Materials that are generally commercially available),
Vendor hereby grants to TXUED, at no additional charge (during the
Services Agreement Term), a global, non-exclusive, non-transferable
(except in connection with a Change in Control), perpetual (only
with
respect to clause (ii) below), irrevocable, royalty-free (during
the
Services Agreement Term) right and license to access, use, practice,
make,
have made, operate, copy, execute, reproduce, display, perform,
distribute, modify, maintain, upgrade, store and create Derivative
Works
of such Vendor Owned Materials (i) during the services Agreement
Term
solely to
the extent necessary for TXUED (including,
for the avoidance of doubt, any Entity that is Controlled by TXUED)
to
receive the Services or exercise any of its specific rights under
Schedule
E and
(ii) upon completion of the Termination Assistance Services solely
for the
benefit of TXUED (including, for the avoidance of doubt, any Entity
that
is Controlled by TXUED), and, upon Vendor’s prior written consent, such
consent not to be unreasonably withheld or delayed, to sublicense
and
permit third parties to access, use, practice, make, have made, operate,
copy, execute, reproduce, display, perform, distribute, modify, maintain,
upgrade, store and create Derivative Works of such Vendor Owned Materials
solely for the purposes set forth in the preceding clauses (i) and
(ii).
Any approved sublicensee must sign a written agreement to be bound
by all
of the terms contained herein applicable to such Vendor Owned Materials
(such agreement shall include the terms specified in this Section
as well
as those pertaining to the ownership of such Vendor Owned Materials,
the
scope and term of the license, the restrictions on the use of such
Vendor
Owned Materials, the obligations of confidentiality, etc). Except
as
otherwise approved by Vendor, which approval will not be unreasonably
withheld or delayed under the circumstances, TXUED shall not (i)
separate
or uncouple any portions of any Software comprising the Vendor Owned
Resources, in whole or in part, from any other portions thereof,
or (ii)
reverse assemble, reverse engineer, translate, disassemble, decompile
or
otherwise attempt to create or discover any source or human readable
code,
underlying algorithms, ideas, file formats, trade secrets or programming
interfaces of any Software comprising the Vendor Owned Resources
by any
means whatsoever.
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(d)
|
License
to Vendor Licensed Materials.
Effective upon Vendor’s first use of Vendor Licensed Materials (including
in each case all related documentation, processes and methodologies
but
excluding CableCure® Technology, the Vendor ERP System and off-the-shelf
Materials that are generally commercially available) and to the extent
permitted under Vendor’s agreements with third parties that are not
Vendor’s Affiliates, Vendor hereby grants to TXUED, at no additional
charge by Vendor, a global, non-exclusive, non-transferable (except
in
connection with a Change in Control), perpetual (only with respect
to
clause (ii) below), irrevocable, royalty-free (during the Services
Agreement Term) right and license to access, use, practice, make,
have
made, operate, copy, execute, reproduce, display, perform, distribute,
modify, maintain, upgrade, store and create Derivative Works of such
Vendor Licensed Materials (i) during the Services Agreement Term
solely to
the extent necessary for TXUED (including,
for the avoidance of doubt, any Entity that is Controlled by TXUED)
to
receive the Services or exercise any of its specific rights under
Schedule
E
and (ii) upon completion of the Termination Assistance Services solely
for
the benefit of TXUED (including, for the avoidance of doubt, any
Entity
that is Controlled by TXUED), and to sublicense and permit third
parties
to access, use, practice, make, have made, operate, copy, execute,
reproduce, display, perform, distribute, modify, maintain, upgrade,
store
and create Derivative Works of such Vendor Licensed Materials solely
for
the purposes set forth in the preceding clauses (i) and (ii). Vendor
shall
not use any such Vendor Licensed Materials to provide the Services
for
which Vendor is unable to offer the rights set forth in this Section
and
Section
4.3(b)(ii)
without TXUED’s prior consent. Absent such consent, Vendor’s use of any
such Vendor Licensed Materials necessary to provide the Services
shall
obligate Vendor to provide, at no cost to TXUED, the rights set forth
in
this Section and Section
4.3(b)(ii).
TXUED shall be responsible for any transfer, assignment, switching,
termination or other fees or costs to obtain for TXUED the rights
and
license set forth is in this Section and to a transfer or assignment
of
any Third Party Contract as set forth in Section
4.3(b)(iii);
provided, that TXUED was informed of, and agreed to, such transfer,
assignment, switching, termination or other fees or costs prior to
Vendor’s first use of any such Vendor Licensed Materials.
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(e)
|
Rights
to Vendor Resources.
Effective upon Vendor’s first use of any Vendor Owned Resources
(excluding
labor, CableCure® Technology, the Vendor ERP System and off-the-shelf
Resources that are generally commercially available)
or
any Resources that are licensed, leased or otherwise obtained by
Vendor
from a third party in connection with the Services (excluding labor,
Vendor Owned Materials, Vendor Licensed Materials, CableCure® Technology,
the Vendor ERP System, Work Product paid for entirely by TXUED and
off-the-shelf
Resources that are generally commercially available)
(“Vendor
Licensed Resources”),
to the extent permitted under Vendor’s Agreements with such third parties,
Vendor hereby grants to TXUED, at no additional charge by Vendor,
during
the Services Agreement Term a global, non-exclusive, non-transferable
(except in connection with a Change in Control), irrevocable, royalty-free
right and license to access, use, operate, modify, maintain and upgrade
such Vendor Owned Resources and Vendor Licensed Resources solely
to the
extent necessary for TXUED (including, for the avoidance of doubt,
any
Entity that is Controlled by TXUED) to receive the Services or
to
exercise any of its specific rights under Schedule
E,
and, upon Vendor’s prior written consent, such consent not to be
unreasonably withheld or delayed, to permit third parties to access,
use,
operate, modify, maintain and upgrade such Vendor Owned Resources
and
Vendor Licensed Resources solely to the extent necessary for TXUED
(including, for the avoidance of doubt, any Entity that is Controlled
by
TXUED) to receive the Services or exercise any of its specific rights
under Schedule
E.
Vendor shall not use any such Vendor Licensed Resources to provide
the
Services for which Vendor is unable to offer the rights set forth
in this
Section and Section
4.3(b)(iii)
without TXUED’s prior consent. Absent such consent, Vendor’s use of any
such Vendor Licensed Resources necessary to provide the Services
shall
obligate Vendor to provide, at no cost to TXUED, the rights set forth
in
this Section and Section
4.3(b)(iii).
TXUED shall be responsible for any transfer, assignment, switching,
termination or other fees or costs to obtain for TXUED the rights
and
license set forth in this Section and to a transfer or assignment
of any
Third Party Contract as set forth in Section
4.3(b)(iii);
provided, that TXUED was informed of, and agreed to, such transfer,
assignment, switching, termination or other fees or costs prior to
Vendor’s first use of any Vendor Licensed
Resources.
|
|
(f)
|
Embedded
Materials.
To the extent that Vendor Owned Resources are embedded in any TXUED
Owned
Resources, Vendor shall not be deemed to have assigned its rights
(including intellectual property rights) in such Vendor Owned Resources
to
TXUED, but such Vendor Owned Resources shall be subject to the license
grant under Section 12.2(c).
|
|
12.3
|
General
Rights.
|
|
(a)
|
Legends.
Each Party agrees to reproduce any copyright, patent, trademark or
other
proprietary or restrictive notice or legend contained in or included
on
any portion of the Resources which may be owned by the other Party
or
third parties.
|
|
(b)
|
No
Implied Licenses.
Except as expressly specified in this Services Agreement, nothing
in this
Services Agreement shall be deemed to grant to one Party, by implication,
estoppel or otherwise, license rights, ownership rights or any other
intellectual property rights in any Resources owned by the other
Party or
any Affiliate of the other Party (or, in the case of Vendor,
TXUED).
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12.4
|
Return
of TXUED Owned Resources.
Following
the completion by Vendor of any Termination Assistance Services for
which
TXUED
Owned Resources
are required,
Vendor shall, at no cost to TXUED:
|
|
(a)
|
promptly
return to TXUED all TXUED Owned Resources (and all copies thereof)
in
substantially the same condition (as they may have been modified
or
improved by Vendor) as when such TXUED Owned Resources were first
provided
to Vendor, subject to reasonable wear and
tear;
|
|
(b)
|
following
confirmation by TXUED that TXUED has received the TXUED Owned Resources,
destroy or securely erase all other copies of such Resources then
in
Vendor’s possession and cease using such Resources for any purpose;
and
|
|
(c)
|
certify
such destruction, erasure and cessation to TXUED in a notice signed
by an
officer of Vendor.
|
|
12.5
|
Return
of Vendor Owned Resources.
Following
the completion by Vendor of any Termination Assistance Services for
which
Vendor
Owned Resources
are required,
TXUED shall, at Vendor’s cost:
|
|
(a)
|
promptly
return to Vendor those Vendor Owned Resources (and all copies thereof)
that are not transferred to TXUED or to which TXUED does not have
ongoing
rights under this Agreement in substantially the same condition (as
they
may have been modified or improved by TXUED) as when such Vendor
Owned
Resources were first provided to TXUED, subject to reasonable wear
and
tear;
|
|
(b)
|
following
confirmation by Vendor that Vendor has received such Vendor Owned
Resources, destroy or securely erase all other copies of such Resources
then in TXUED’s possession and cease using such Resources for any purpose;
and
|
|
(c)
|
certify
such destruction, erasure and cessation to Vendor in a notice signed
by an
officer of TXUED.
|
|
13.
|
ADDITIONAL
WARRANTIES AND COVENANTS.
|
13.1 (a) General
Warranty.
Without
limiting any other provisions of this Agreement, but subject to Section 13.1(f)
below, Vendor warrants and covenants as follows (the “General
Warranty”):
(i)
the Vendor Personnel shall perform the Services in a professional and
workmanlike manner, in accordance with high professional standards, with a
level
of care, safety, skill, knowledge and judgment required or reasonably expected
of firms or persons performing comparable services, that Vendor shall use
adequate numbers of qualified individuals with suitable training, experience,
competence and skill to perform the Services and that Vendor shall provide
such
individuals with training as to new products and services prior to the
implementation of such products and services in the TXUED environment, and
(ii)
all Services shall be performed in accordance and compliance with the terms
of
this Agreement and all Work Product paid for entirely by TXUED shall be free
from defects in workmanship and, to the extent Work Product paid for entirely
by
TXUED has underlying Specifications, shall be Compliant.
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|
(b)
|
Warranty
Period.
The General Warranty shall extend for a period (the “Warranty
Period”)
as follows: for a period of twenty-four months (24) months from the
date
of provision of Services or, in the case of Work Product paid for
entirely
by TXUED, TXUED’s final acceptance of such Work Product, except: (i) where
specific Services or Work Product have been specified to have a longer
warranty, in which case the General Warranty shall cover such specific
Services or Work Product for the duration of such longer warranty
period;
or (ii) for any Services that are not performed in accordance with
applicable TXUED Rules, TXUED Standards or Specifications, in which
case
the General Warranty shall cover such Services for four (4)
years.
|
|
(c)
|
Remedies.
If within the Warranty Period a breach of the General Warranty occurs,
then upon receiving notice or otherwise becoming aware thereof, and
as
TXUED’s sole and exclusive remedy and Vendor’s sole and exclusive
obligation and liability, Vendor shall, at no additional cost or
expense
to TXUED, re-perform the Services that are the subject of the General
Warranty breach, or repair, replace or otherwise cure the defective
or
non-Compliant Work Product, and in each case the Resources required
for
such re-performance or repair, replacement or other cure shall not
be
counted in calculating the Charges payable or Resources utilized
by
TXUED.
|
|
(d)
|
Risk
of Loss.
Vendor shall bear the risk of loss or damage to any specific Work
Product
requiring repair, replacement or cure pursuant to this Section during
the
period during which Vendor is performing any repair, replacement
or cure
work on such Work Product.
|
|
(e)
|
Extended
Warranty Period.
The General Warranty shall apply to Services that are re-performed
and
Work Product that is repaired, replaced or otherwise cured pursuant
to
this Section for the longest of (x) an additional twenty-four (24)
month
period following re-performance or completion of the repair, replacement
or other cure, (y) such longer period with respect to those specific
Services or Work Product that have been specified to have a longer
warranty or (z) four (4) years with respect to those Services that
are not
performed in accordance with applicable TXUED Rules, TXUED Standards
or
Specifications.
|
|
(f)
|
EXCLUSIVE
WARRANTEES.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SERVICES AGREEMENT SECTION
13.1,
SECTION
13.2
AND SECTION 13.3
AND IN THE MASTER AGREEMENT SECTION
13.3,
SECTION
13.4
AND SECTION
13.5,
VENDOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE
SERVICES OR THE WORK PRODUCT, AND TXUED DISCLAIMS ANY WARRANTY IMPLIED
BY
LAW, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A
PARTICULAR PURPOSE AND ALL OTHER WARRANTIES IMPLIED OR ARISING BY
OPERATION OF LAW, INCLUDING WARRANTIES OF CUSTOM, TRADE, COURSE OF
DEALING
OR USAGE.
|
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13.2
|
Work
Product and Incorporated and Attached Items.
Vendor warrants and covenants that all Work Product paid for entirely
by
TXUED and any materials (including Materials), equipment (including
Equipment), tools and other Resources provided by Vendor and incorporated
into or attached to any such Work Product shall be (a) free and clear
of
any security interests or other liens or encumbrances upon transfer
to
TXUED, and (b) of the grade specified by the applicable TXUED Rules,
TXUED
Standards or Specifications for their intended uses or, if no grade
is so
specified, of a reasonable grade for their intended
uses.
|
|
13.3
|
Other
Warranties.
Vendor warrants and covenants that (a) the title conveyed to TXUED
to any
Work Product shall be good and its transfer rightful, and (b) none
of the
Work Product paid for entirely by TXUED shall infringe upon the rights
(including proprietary rights) of any third
party.
|
|
13.4
|
TXUED
Warranties.
TXUED warrants and covenants that (a) TXUED is the owner of or otherwise
has the authority to grant the license in TXUED Owned Resources under
Section
12.1
and (b) none of the TXUED Owned Resources shall infringe upon the
rights
(including proprietary rights) of any third
party.
|
|
14.
|
TERMINATION.
|
|
14.1
|
Termination
for Cause.
|
|
(a)
|
By
TXUED.
In addition to the termination rights set forth in the Master Agreement,
if Vendor:
|
|
(i)
|
commits
a material breach of this Services Agreement or
its material obligations in respect of any functional Services
area
which breach is not cured within forty-five (45) days after notice
of the
breach from TXUED or such longer period as may be set forth in the
Master
Agreement or this Services Agreement; provided that such forty-five
(45)
day period shall be extended up to one-hundred thirty-five (135)
additional days so long as Vendor has commenced and is diligently
pursuing
and continues to use its best efforts to cure such breach and the
failure
to cure such breach does not have a material adverse effect on TXUED
(which, for the avoidance of doubt, excludes those effects that have
been
cured by payment of money damages);
|
|
(ii)
|
commits
a material breach of this Services Agreement or its material obligations
in respect of any functional Services area which is not capable of
being
cured (including
by the payment of money, where appropriate) within
the period specified pursuant to Section 14.1(a)(i);
or
|
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|
(iii)
|
commits
numerous breaches of this Services Agreement or
its material obligations in respect of any functional Services
area
of
which Vendor has received formal notice and which collectively constitute
a material breach, and fails to (A) cure such breaches within forty-five
(45) days
after receiving notice from TXUED that such breaches have become
a
material breach;
provided that such forty-five (45) day period shall be extended up
to
one-hundred thirty-five (135) additional days so long as Vendor has
commenced and is diligently pursuing and continues to use its best
efforts
to cure such breach and the failure to cure such breach does not
have a
material adverse effect on TXUED (which, for the avoidance of doubt,
excludes those effects that have been cured by payment of money
damages);
and (B) give TXUED adequate assurance that the cause of each of such
breach has been corrected so as not to be repeated again, provided
that
if, within the twenty-four (24) month period following the completion
of
the cure described in the preceding clause (A), Vendor again commits
numerous breaches of this Services Agreement or
its material obligations in respect of any functional Services
area
which Vendor has previously received formal notice and which collectively
constitute a material breach, Vendor shall not be entitled to the
cure
rights described in the preceding clause (A) and
(B);
|
then
TXUED may, by giving notice to Vendor, terminate this Services Agreement as
of a
date specified in the notice of termination.
|
(b)
|
By
Vendor.
In
the event that (i) TXUED fails to pay Vendor any undisputed portion
of any
Bi-Monthly Invoice within fifteen (15) days following notice from
Vendor
and TXUED continues to fail to pay Vendor within fifteen (15) days
following a second notice from Vendor (to be delivered no earlier
than
fifteen (15) days after the first notice) stating that such amount
is
overdue and stating that Vendor may, in Vendor’s sole discretion,
terminate the Agreement if such amount is not paid within three (3)
days
from the date of such second notice or (ii) in any calendar year,
TXUED
fails to pay the undisputed portion of five (5) or more Bi-Monthly
Invoices within the time period set forth in Section
11.1(b)
and has received at least one notice from Vendor in respect of each
such
failure to pay.
|
|
14.2
|
Reserved.
|
|
14.3
|
Reserved.
|
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|
14.4
|
Termination
for Insolvency.
In the event that a Party (i) files for bankruptcy, (ii) becomes
or is declared insolvent, or is the subject of any bona fide proceedings
related to its liquidation, administration, provisional liquidation,
insolvency that is not dismissed within sixty (60) days or the appointment
of a receiver or similar officer for it, (iii) passes a resolution
for its voluntary liquidation, (iv) has a receiver or manager
appointed over all or substantially all of its assets, (v) makes an
assignment for the benefit of all or substantially all of its creditors,
(vi) enters into an agreement or arrangement for the composition,
extension or readjustment of substantially all of its obligations
or any
class of such obligations, (vii) has its credit rating issued by one
or more Ratings Agencies downgraded to or below “CCC” or their equivalent
grade in the event of a change in rating scales by the Rating Agencies
(provided that until Vendor obtains a credit rating, this clause
(vii)
shall not be a basis upon which TXUED may terminate this Services
Agreement) or (viii) experiences an event analogous to any of the
foregoing in any jurisdiction in which any of its assets are situated,
then in any such event the other Party may terminate this Services
Agreement as of a date specified in a termination notice; provided,
however, that Vendor shall not have the right to exercise such termination
under this Section so long as TXUED pays for the Services on a current
basis. For purposes of this Section, “Ratings
Agency”
means each of Xxxxx’x Investor Services or Standard & Poors and any
successors thereto, and in the event either of such Entities no longer
issues credit ratings, then another nationally recognized credit
rating
agency (if any) agreed to by the
Parties.
|
|
14.5
|
Reserved.
|
|
14.6
|
Cross
Terminations and Termination Charges.
|
|
(a)
|
This
Services Agreement shall automatically terminate upon the expiration
or
termination of the Master
Agreement.
|
|
(b)
|
Except
for Termination Fees payable by TXUED if it terminates the Master
Agreement under Section
18.9,
no other termination fees shall be payable by a Party that terminates
this
Services Agreement under an express termination right set forth in
this
Services Agreement.
|
|
(c)
|
Except
as otherwise expressly provided in the Master Agreement or in this
Services Agreement, each Party may only terminate this Services Agreement
in its entirety.
|
|
14.7
|
Reserved.
|
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SERVICES AGREEMENT
|
15.
|
ASSIGNMENT
OF SERVICES AGREEMENT FOR FINANCING.
|
Vendor
may assign, transfer, pledge, hypothecate or otherwise encumber all of its
right, title and interest in, to and under this Services Agreement as collateral
security for any financing Vendor may elect to enter into with any lender,
trustee, lessor or other financing party (each a “Lender”) and pursuant to such
financing, TXUED will execute and deliver a reasonable and customary consent
to
assignment for the benefit of the Lenders, which shall be in form and substance
reasonably acceptable to TXUED. Such consent to assignment may address, among
other items, (i) the right (but not the obligation) of the Lenders, pursuant
to
the exercise of their remedies under such assignment, to exercise Vendor’s
rights and receive notices on behalf of Vendor under this Services Agreement,
(ii) the right (but not the obligation) of the Lenders to cure defaults of
Vendor in a manner reasonably satisfactory to TXUED, (iii) the right of the
Lenders, upon request (to the extent permitted by applicable law), to receive
a
replacement agreement (which shall be in form and substance reasonably
satisfactory to TXUED) should this Services Agreement be terminated or rejected
as a result of any bankruptcy of Vendor, and (iv) the right to direct payments
otherwise payable to Vendor (without offset or reduction) to an account
controlled by the Lenders.
TXUED
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SERVICES AGREEMENT
IN
WITNESS WHEREOF,
the
Parties have caused this Services Agreement to be executed by their respective
duly authorized representatives as of the Services Agreement Effective
Date.
| TXU ELECTRIC DELIVERY COMPANY | ||
| |
|
|
| By: | ______________________________________ | |
| Name: ________________________________ | ||
| Title: ________________________________ | ||
| INFRASTRUX ENERGY SERVICES | ||
| GROUP LP | ||
| |
|
|
| By: | InfrastruX Energy GP, LLC, its general partner | |
| By: | InfrastruX Group, Inc., its member | |
| By: _________________________________ | ||
| Name: _________________________________ | ||
| Title: _________________________________ | ||
| |
By: |
TXU Asset Services Group Management LLC, its general partner |
| By: | __________________________________________________ | |
| Name: _____________________________________________ | ||
| Title: _____________________________________________ | ||
[Signature
Page to Field Services Agreement]
EXECUTION
COPY
AMENDED
AND RESTATED
FIELD
SERVICES AGREEMENT
TABLE
OF CONTENTS
|
Page
|
|
|
BACKGROUND
AND CONDITIONS
|
1
|
|
|
2.
|
DEFINITIONS
AND DOCUMENTS
|
1
|
|
|
2.1
|
Definitions
|
1
|
|
|
2.2
|
Other
Services Agreement Terms
|
1
|
|
|
3.
|
TERM
|
2
|
|
|
3.1
|
Initial
Services Agreement Term
|
2
|
|
|
3.2
|
Extension
|
2
|
|
|
4.
|
SERVICES
|
3
|
|
|
4.1
|
Overview
|
3
|
|
|
4.2
|
Transition
Services and Transformation Services.
|
4
|
|
|
4.3
|
Termination
Assistance Services
|
8
|
|
|
4.4
|
Use
of Third Parties
|
12
|
|
|
4.5
|
Employee
Transfers
|
13
|
|
|
4.6
|
Operational
and Financial Responsibility
|
13
|
|
|
5.
|
FACILITIES,
ASSIGNED AGREEMENTS AND REQUIRED CONSENTS
|
13
|
|
|
5.1
|
TXUED
Facilities.
|
13
|
|
|
5.2
|
Vendor
Facilities.
|
14
|
|
|
5.3
|
Reserved
|
15
|
|
|
5.4
|
Assignment
of Third Party Contracts
|
15
|
|
|
5.5
|
Managed
Third Party Agreements
|
15
|
|
|
5.6
|
Reserved
|
16
|
|
|
5.7
|
Required
Consents
|
16
|
|
|
6.
|
SERVICE
LEVELS
|
17
|
|
|
6.1
|
General
|
17
|
|
|
6.2
|
***
|
18
|
|
|
7.
|
RESERVED
|
19
|
|
|
8.
|
VENDOR
RESPONSIBILITIES.
|
19
|
|
|
8.1
|
Policy
and Procedures Manual
|
19
|
|
|
8.2
|
Government
Contract Flow-Down Clauses
|
20
|
|
|
8.3
|
Unauthorized
Use
|
21
|
|
|
8.4
|
Interface
|
21
|
|
***CONFIDENTIAL
MATERIAL REDACTED AND FILED SEPARATELY WITH THE
COMMISSION
.i
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AMENDED
AND RESTATED
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SERVICES AGREEMENT
TABLE
OF CONTENTS
(continued)
|
Page
|
|
9.
|
TXUED
RESPONSIBILITIES
|
21
|
|
|
9.1
|
TXUED
Service Delivery Executive
|
21
|
|
|
9.2
|
Cooperation
|
22
|
|
|
10.
|
CHARGES
|
22
|
|
|
10.1
|
Reserved
|
22
|
|
|
10.2
|
***
|
22
|
|
|
11.
|
RESERVED
|
22
|
|
|
12.
|
OWNERSHIP
OF MATERIALS
|
23
|
|
|
12.1
|
TXUED
Owned Resources
|
23
|
|
|
12.2
|
Vendor
Owned Resources
|
25
|
|
|
12.3
|
General
Rights
|
28
|
|
|
12.4
|
Return
of TXUED Owned Resources
|
28
|
|
|
12.5
|
Return
of Vendor Owned Resources
|
29
|
|
|
13.
|
ADDITIONAL
WARRANTIES AND COVENANTS
|
29
|
|
|
13.1
|
(a)
General Warranty
|
29
|
|
|
13.2
|
Work
Product and Incorporated and Attached Items
|
31
|
|
|
13.3
|
Other
Warranties
|
31
|
|
|
13.4
|
TXUED
Warranties
|
31
|
|
|
14.
|
TERMINATION
|
31
|
|
|
14.1
|
Termination
for Cause
|
31
|
|
|
14.2
|
Reserved
|
32
|
|
|
14.3
|
Reserved
|
32
|
|
|
14.4
|
Termination
for Insolvency
|
32
|
|
|
14.5
|
Reserved
|
33
|
|
|
14.6
|
Cross
Terminations and Termination Charges
|
33
|
|
|
14.7
|
Reserved
|
33
|
|
|
15.
|
ASSIGNMENT
OF SERVICES AGREEMENT FOR FINANCING
|
33
|
|
***CONFIDENTIAL
MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
End
of TOC - Do not delete this paragraph!
ii
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AND RESTATEDSCHEDULE A
FIELD
SERVICES AGREEMENT
DEFINITIONS
In
addition to the terms defined in the Master Agreement, the following terms
shall
have the following meanings when used in this Services Agreement.
“Affected
Vendor Personnel”
has
the
meaning set forth in Section
4.3(c)
of this
Services Agreement.
“AMIS”
means
automated meter information System.
“AMR”
means
automated meter reading.
“ANSI”
means
American National Standards Institute and includes ANSI A300 and ANSI Z133
as
they relate to VM activities.
ANSI/ASQC
Z1.9”
means
a
statistical sampling method that provides for the division of meters into
homogenous groups, the annual selection and testing of a random sample of meters
of each group, and the evaluation of the test results.
“Annual
Supply Chain Plan”
means
the annual plan developed by Vendor and approved by TXUED, to deliver Total
Cost
of Ownership savings and process improvements.
“Asset
Plan”
means
TXUED-approved types and scopes of Services required by TXUED for each calendar
year.
“Assigned
Agreements”
has
the
meaning set forth in Section
5.4(a)
of this
Services Agreement.
“Association
of Edison Illuminating Companies”
or
“AEIC”
means
the association made up of electric utilities that meet to exchange views and
experiences in the management of their business in order to pool their common
knowledge.
“ASTM”
means
American Society for Testing and Materials.
“Auxiliary
Items”
means
extra equipment and services used to support the provision of the Services,
including alternating current station service, direct current station service,
batteries, battery chargers, power and control cable, conduit, fire protection,
emergency generators, oil filtration, fiber optic isolation, oil spill
mitigation and security systems.
“Bermuda
Release”
means
a
vegetation management program for converting land covered with nuisance weeds
and vines into hardy bermuda species of grass, completed over a defined period
of time and by applying prescribed methods as set forth in the relevant
program.
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SERVICES AGREEMENT
“Business
Hours”
means
Monday through Friday, 7:00 AM to 7:00 PM CPT, excluding the following federally
observed holidays: New Year’s Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Days (Thursday and Friday) and Christmas Day. Business Hours
includes any day on which TXUED’s corporate offices are open for business.
“Business
Process Evolution”
has
the
meaning set forth in Section
10.2(a)
of this
Services Agreement.
“CableCure®
Technology”
means
the technology, intellectual property rights, products and services licensed
by
Dow Corning Corporation to Vendor’s Affiliate, UtilX Corporation, under an
Exclusive License and Distribution Agreement dated September 26, 1991; all
technology, intellectual property rights, products and services marketed
and
sold under the CableCure® trademark; all related Resources; all modifications,
enhancements, improvements and Upgrades to and Derivative Works of any of
the
foregoing; the CableCure® trademark; and all intellectual property and
proprietary rights therein.
“CADD”
means
computer-aided design and drafting.
“CAE”
means
computer-aided engineering.
“Capital
Maintenance Manual”
means
the manual that provides guidance and instructions for the proper accounting
treatment of costs related to physical changes in TXUED property. The
purpose of the Capital Maintenance Manual is to provide consistent guidelines
for the classification of expenditures as either capital or expense. It
identifies all existing Property Units and substantial items of property
which
make up the capital assets of TXUED.
“Category”
means
a
group of Products which are common among Suppliers that provide those Products.
An example of a Category is safety supplies, which includes most common safety
products typical to Suppliers carrying this Category of Products.
“CATS”
means
Computer Assisted Trouble System, which is the name for the outage management
System.
“CCN”
means
certificate of convenience and necessity.
“Central
Prevailing Time”,
“Central
Time”
or
“CPT”
means
either Central Standard Time or Central daylight time, as applicable, as
established by national time standards.
“Chargeable
Vehicle Accident”
means
an accident involving damage to a vehicle or property in which the vehicle
is in
motion, ready for motion, or otherwise not legally parked.
“CIAC”
means
contribution-in-aid of construction, which is the amount that a customer
will be
charged for a requested service.
TXUED
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AND RESTATEDSCHEDULE A
FIELD
SERVICES AGREEMENT
“CIGRE”
means
the International Council on Large Electric Systems.
“CMPC”
means
Capital Maintenance Prioritization Committee, or the committee within TXUED’s
transmission Business Unit that is responsible for identifying and prioritizing
specific Transmission Line and Substation components requiring upgrade or
replacement as part of a Maintenance program.
“Comanche
Peak”
means
the nuclear power plant located near Xxxx Xxxx, Texas.
“Commissioning”
and
its
derivatives mean all final assembly, processing, adjustments, diagnostic
testing, and verification work required prior to placing a piece of Substation
and Transmission Line equipment in service.
“Communication
Items”
means
the physical plants and equipment for disseminating information, including
SCADA, remote terminal units, carrier equipment, wave traps, coupling
capacitors, fiber optic relay communication links, tone relaying circuit
interface equipment and fiber optic isolation equipment.
“Competitive
Retailer”
or
“CR”
means
a
retail electric provider, or a municipally owned utility or electric
cooperative, that has the right to offer electric energy and related services
at
unregulated prices directly to retail customers who have Customer Choice,
without regard to geographic location.
“Construction”
and
its
derivatives mean all Resources necessary for the addition, modification,
relocation, rebuilding, replacement or removal of Utility Facilities or any
component thereof.
“Construction
Status Report”
means
a
report utilized to give updated status on Construction projects.
”Contract
Changes”
has
the
meaning set forth in Section
10.1
of this
Services Agreement.
“Contract
Year”
means
the period ending on each anniversary of the Services Agreement Commencement
Date during the Services Agreement Term. If any Contract Year is less than
twelve (12) months, the rights and obligations that are calculated on a Contract
Year basis will be proportionately adjusted for such shorter
period.
“Control
Building Items”
means
the Substation facilities which include architectural design, structure,
space
conditioning, grounding, raceways, lighting and communications.
“Customer
Average Interruption Duration Index”
or
“CAIDI”
means
the average interruption duration for those customers whose electrical
service(s) is/are interrupted during a year.
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“Customer
Choice”
means
the freedom of a retail customer to purchase electric services, either
individually or through voluntary aggregation with other retail customers,
from
the provider(s) of the customer’s choice.
“Customer
Information System”
or
“CIS”
means
the System containing all data pertaining to all customer premises, including
addresses, billing determinants and historical usage data.
“DART”
means
an employee injury or work-related illness resulting in a day or days away
from
work, an employee job transfer or restricted duty.
“DFR”
means
digital fault recorder.
“DFR
Report Viewer”
means
the system (including the viewer) used to collect, classify, view, analyze
and
manipulate data pertaining to digital fault recorders and to notify
electronically (E-mail or paging) of a Transmission System event.
“Diagnostic
Tests”
and
“Diagnostic
Testing”
means
a
test or testing conducted to detect, evaluate and/or indicate faults or
failures, including power factor, transformer turns ratio, transformer frequency
response analysis, DC megger insulation testing, winding resistance, low
resistance ohm measurements, AC partial discharge, circuit breaker motion
analysis, circuit breaker operator signature analysis, high potential testing,
thermal infrared inspections, high current ground grid testing, soil resistivity
and ground resistance, ground continuity, batteries and charger troubleshooting
and acoustical testing. Oil tests include dielectric breakdown, moisture
content, total combustible gas, and dissolved gasses.
“Dig-Tess”
means
the Dig-Tess Center, a damage prevention service, and TESS, the Texas Excavation
Safety System, Inc.
“Distribution
Step-Down Substations”
means
those Substations that perform transformation between transmission network
and
distribution network voltage levels, and interconnect portions of the utility
distribution network.
“Distribution
System”
means
that portion of the electric delivery system operating at under 60 kilovolts
(kV) that delivers electric energy to customers.
“DOC”
means
Distributions Operations Center.
“Door
Hanger”
means
the method and means of notifying landowners and customers of upcoming VM
work,
or of educating landowners and customers of the need for VM work, and providing
a toll free number for questions or concerns.
“EEI”
means
the Edison Electric Institute.
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“EHV”
means
extra high voltage.
“Electrical
System”
means
the Distribution System and the Transmission System.
“Electronic
Interfaces”
means
any electronic transfer point for Substation and Transmission Line
information.
“EMF”
means
electromagnetic field.
“EPRI”
means
the Electric Power Research Institute.
“EPS
Metering”
means
ERCOT polled settlement metering.
“ERCOT”
means
the Electric Reliability Council of Texas.
“ESI
ID”
means
basic identifier assigned to each service delivery point used in the
registration and settlement Systems managed by ERCOT or another independent
organization.
“Facilities
Meter Information System”
or
“FMIS”
means
the System used to track, manipulate and store data pertaining to all meters,
current transformers, voltage transformers and associated metering devices.
“FIM”
means
the financial information management System.
“Fleet”
means
transportation vehicles and equipment including passenger vehicles, aerial
equipment, trailers and licensed specialty equipment.
“Generating
Switching Stations”
means
those stations that transform generation voltage (usually 15 kV to 23 kV)
up to
transmission network voltage (usually 69 kV through 345 kV).
“Generation/Transmission
Switching Stations”
means
Transmission Switching Stations located physically adjacent to Generating
Switching Stations.
“Hazard
Tree”
means
any tree identified as a potential hazard or liability to the Electrical
System.
“HV”
means
high voltage.
“IEC”
means
the International Engineering Consortium.
“IEEE”
means
the Institute of Electrical and Electronics Engineers.
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“In-Service”
is
defined as the Transmission Line and Substation facilities that are permanently
energized and serving load or that are permanently placed in a condition
such
that they can immediately be used in a backstand role to serve
load.
“Initial
Services Agreement Term”
has
the
meaning set forth in Section
3.1
of this
Services Agreement.
“Interconnection
Facility”
means
a
facility to connect other Entities’ equipment to TXUED equipment.
“ISA”
means
the International Society of Arboriculture.
“Joint
ROW”
means
the agreements between TXUED and other electric transmission operators or
owners
for maintenance responsibilities of designated ROWs.
“Joint
Use”
means
the common use of facilities, including multiple entities attaching their
facilities to a common pole, permitted pursuant to agreements between TXUED
and
other utilities, cable or telephone companies.
“Kitting”
means
the packaging of a job-specific consolidated xxxx of material that is labeled
with information, including job number, crew number, location to be delivered
and other applicable information, ensuring the efficient packaging and delivery
of all Products.
“Long
Range Transmission & Distribution Plan”
means
the multi-year forward looking strategic plan with regards to expansion and
enhancement of the Transmission and Distribution Systems.
“LV”
means
low voltage.
“Make
Safe”
means
the pruning of a tree to a safe distance from TXUED energized facilities
so that
customer or its agent can legally and safely continue pruning of the tree
or
seek its removal.
“Maintenance”
and
its
derivatives mean all Resources necessary for the repair, overhaul, correction,
processing and rebuilding of any Utility Facilities or any component
thereof.
“Major
Transmission/Substation SAIDI Event”
means
the System Average Interruption Duration Index (SAIDI) minutes associated
with a
single Transmission/Substation outage event which meets or exceeds 0.25 SAIDI
minutes and is deemed non-controllable by TXUED.
“Managed
Invoices”
has
the
meaning set forth in Section
5.5(b)
of this
Services Agreement.
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“Merchant
Plant”
means
an electrical generating facility.
“Mobile
Equipment”
means
mobile or portable transformer, regulators, switches, breakers, protective
relaying, emergency cables and other associated components.
“National
Arbor Day Foundation”
means
the organization that TXUED participates with and from which TXUED seeks
annual
Tree Line USA recognition.
“National
Electrical Safety Code”
or
“NESC”
means
IEEE standard C2-2002 engineering standards for accepted safety criteria
for
environments with live electric supply and communication lines.
“National
Institute of Standards Technology”
or
“NIST”
means
the Federal agency that works with industries to develop and apply technology,
measurements, and standards.
“NEMA”
means
National Electrical Manufacturers Association.
“NERC”
means
North American Electric Reliability Council.
“Nominal
Voltages”
means
all available voltages as described in TXUED.
“Non-Storm
CAIDI”,
“Non-Storm
SAIDI”
and
“Non-Storm
XXXXX”
means
CAIDI, SAIDI or XXXXX, as applicable, calculated after excluding outages
that
occur during storms or other events that meet the “Insurance Reserve” criteria
established in TXUED’s then-current “Accounting Policies and Procedures
Manual.”
“NRC”
means
the Nuclear Regulatory Commission.
“Oak
Xxxx Guidelines”
means
the Texas Forest Service’s guideline for mitigating oak xxxx during various
seasons in Texas.
“OFF-ROW”
means
vegetation that originates outside the normal ground or aerial ROW space.
“TXUED
Black Start Manual”
means
the manual that defines the purpose, scope, objectives, and strategies to
respond to a total or near total blackout. This manual provides guidelines
for
directing the overall recovery of the Electrical System, consistent with
ERCOT
guidelines and in support of ERCOT actions.
“TXUED
Emergency Restoration Plan”
means
the manual that defines mission, policy and objectives in case of substantial
damage to Transmission Lines, Substations, the Electrical System or other
facilities. This manual includes detailed procedures needed to restore electric
service in a timely, efficient, orderly and safe manner.
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“TXUED
Licensed Resources”
means
Resources that are licensed,
leased or otherwise obtained by TXUED from a third party and used in connection
with the Services.
“TXUED
Owned Resources”
has
the
meaning set forth in Section
12.1(a)
of this
Services Agreement.
“TXUED
Safety Handbook”
means
TXUED’s set of safety procedures and rules for performing work.
“TXUED
Service Delivery Executive”
has
the
meaning set forth in Section
9.1
of this
Services Agreement.
“TXUED
Standards”
means
all applicable TXUED business standards, including codes of conduct, hours
of
operation, and safety, security, confidentiality, quality assurance and testing
requirements.
“TXUED
Tariff”
means
the TXU Electric Delivery Company tariff filed with the PUCT and dated August
30, 2004 (as such tariff may be amended from time to time).
“TXUED
Transmission and Substation Regions”
means
the geographical boundaries, presently consisting of Dallas, Fort Worth,
southeast and western regions, which are used to quantify a subset of the
total
Transmission Line and Substation assets.
“ON-ROW”
means
vegetation that originates or has grown within the ground or aerial ROW space
that is targeted by industry accepted methods.
“Operating
Procedures for Televised Events”
means
the guidelines established for preparation and stand-by personnel if applicable
for events meeting the criteria of a televised event.
“Operations”
means
all Services described in Schedule
E-C
and
Schedule
E-E
except
those Services comprising Construction or Maintenance work. Operations include
exercising or changing the state of various discrete pieces of equipment
including fuses or circuit breakers, energizing discrete small portions of
the
Electrical System, modifying the control settings of discrete electrical
components including capacitor or regulator controls or installing temporary
facilities such as electrical jumpers or portable equipment under the guidance
of TXUED Rules and TXUED Standards or as directed by TXUED. Notwithstanding
anything to the contrary in the Master Agreement or this Services Agreement,
Vendor’s performance of Operations shall not be deemed to mean that Vendor
controls or manages the Electrical System.
“OSHA”
means
the Occupational Health and Safety Administration.
“PCB”
means
polychlorinated biphenyls.
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“Priority
Service Request”
means
a
request from a Competitive Retailer to provide a customer with same day service
(including outside regular work hours).
“Problem”
means
any incident, issue or occurrence having an adverse effect on the Services
or
TXUED’s operations or any portion thereof.
“Product”
shall
have the meaning set forth in Exhibit
11
of the
Master Agreement.
“Property
Units”
are
defined in the Capital Maintenance Manual. A Property Unit Number consists
of
six digits. The first two digits represent the appropriate capital account
(the
first digit of capital accounts has been dropped for simplification). The
next
four identify a specific Property Unit within the capital account. Each Property
Unit detail page contains the name of the unit, the Property Unit number,
the
capital account, a description of the Property Unit and its components,
substantial items of property included in the Property Unit and the types
of
costs that should be charged to maintenance.
“Protection
Control and Metering
Items”
means
the Substation facilities which include protective relaying, controls,
Substation automation, electronic and electrical metering, thermal metering,
indication, annunciation equipment, digital fault recorders, AMR, AMIS, SPS,
EPS
Metering, transducers and system monitoring.
“PUCT”
means
the Public Utility Commission of Texas.
“Ratings
Agency”
has
the
meaning set forth in Section
14.4
of this
Services Agreement.
“Red
Zone”
means
TXUED’s formal approach to internal review and notification of critical work
activities that may adversely affect the Electrical System and/or customers.
It
requires work oversight and proper notification when relatively high-risk
tasks
are being done that could adversely affect critical portions of the grid
and/or
critical customers. Such approach includes Construction, Operation, and
Maintenance activities.
“Refusal”
means
a
landowner, customer or other entity that attempts to prohibit the normal
operation and maintenance of VM work activities including the ingress and
egress
to ROWs.
“Refusal
Packet”
means
those materials useful in discussing necessary VM work with a landowner and/or
customer. This packet includes applicable easements, TXUED Tariff, TXUED
Plan
Before You Plant, Chapter 756-Texas Health & Safety Code, Chapter
186-Utilities Code and the PUCT Customer Fact Sheet-All About Trees and Power
Lines.
“Relocation
Project”
means
the adjustment or relocation of TXUED facilities in response to a request
or as
required by a retail customer or governmental/municipal entity.
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“REP”
means
retail electric provider, defined in PURA § 31.002(17) as an Entity,
certificated pursuant to PURA § 39.352, that sells electric power and energy to
retail customers.
“Required
Consents”
has
the
meaning set forth in Section
5.7
of this
Services Agreement.
“Retained
Resources and Business Processes”
has
the
meaning set forth in Section
6.3
of this
Services Agreement.
“Right
of Way”
or
“ROW”
means
the space (ground and/or aerial) that the utility has rights for the
construction, operation and maintenance of the Electrical System, including
the
pruning distance necessary for clearances. This space may be fee owned, a
franchise utility easement, used pursuant to a verbal or written agreement
with
landowner or a documented easement with landowner or prescriptive rights.
This
also includes gates, barriers, culverts, roads and vehicle access.
“S&T”
means
Substation and Transmission Lines.
“S&T
Databases”
means
the Systems required to track, manipulate and store asset, project, Maintenance,
work management and operational data.
“SCADA”
means
supervisory control and data acquisition.
“SDB”
has
the
meaning set forth in Section
8.2(c)
of this
Services Agreement.
“Service
Center” means
a
business office where TXUED Personnel, Vendor Personnel, Subcontractors and
TXUED’s designees may meet and conduct business and where Products may be
delivered or picked up.
“Services
Agreement Commencement Date”
for
this Services Agreement shall mean the Closing Date under and as defined
in the
Participation Agreement, dated June 24, 2006, among InfrastruX Group, Inc.,
a
Washington corporation, TXU Asset Services Company LLC, a Delaware limited
liability company, and (for certain limited purposes only) TXU Electric Delivery
Company, a Texas corporation).
“Services
Agreement Renewal Term”
has
the
meaning set forth in Section
3.2
of this
Services Agreement.
“Services
Agreement Term”
has
the
meaning set forth in Section
3.2
of this
Services Agreement.
“Site
Related Items”
means
non-electrical Substation equipment, including security fences/walls, site
access, site grading, drainage, yard surfacing, site landscaping, irrigation,
plumbing and foundations.
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“SOSF
Laboratory”
means
TXUED’s “System Operating Services Facility” which provides laboratory support
services including oil sample analysis.
“Source”
and
“Sourcing”
means
the process of determining the buying method to utilize for any
Product.
“SPCC”
means
spill prevention control and countermeasure(s).
“Speaker’s
Bureau”
means
the TXUED program that includes photos, presentations, key messages and
frequently asked questions for use by TXUED representatives during education
meetings.
“SPS”
means
the special protection system, an automatic control system used to alter
configuration or loading on a power grid.
“Storm
Debris”
means
the tree damage from a storm. TXUED’s standard procedure is to follow-up over
the subsequent day(s) to remove any of the ON-ROW trimmings related to healthy
trees that were left on the ground during restoration. TXUED’s procedure
prohibits the cleaning up or removal of those trees that split, blew over
or
otherwise failed due to windy storm conditions as this is the responsibility
of
the landowner.
“Strategic
Sourcing”
means
those activities which support determining the purchasing direction for any
Product or commodity to facilitate the total cost of ownership of those
Products.
“Substation”
means
one or more of the following: Transmission Switching Station; Generating
Switching Station; Generation/Transmission Switching Stations; Distribution
Step-Down Substation; Transmission/Distribution Step-Down Substation; and
in
each case includes Site Related Items, Switchyard Items, Control Building
Items,
Protection, Control, and Metering Items, Auxiliary Items, and Communications
Items.
“Substation
and Transmission Line Information”
means
all data, materials and files in electronic or paper formats and any derived
knowledge, associated with, including Substation and Transmission Line assets,
work processes, management processes, financial processes, reporting processes
and operational processes.
“Summer
Preparedness”
means
the Construction, Maintenance and Operations work and reporting necessary
to
prepare the Electrical System for anticipated summer loading
conditions.
“Supplier”
means
a
third party vendor or supplier of Products.
“Supplier
Performance Scorecard”
means
the quantitative scorecard developed by Vendor and approved by TXUED to provide
a quantitative measure of a Supplier’s performance.
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“Switchyard
Items”
means
circuit breakers, air switches, circuit switchers, autotransformers, power
transformations, voltage transformers, current transformers, metal clad
switchgear, capacitors, metal clad capacitor banks, conductor, bus, connectors,
insulation, reactive power compensation equipment, steel and wood support
structures, grounding, raceways, lighting, communication equipment, load
tap
changers, bushings, voltage regulators, cooling equipment, motor operators,
lightning shielding, surge arrestors, reactors, reclosers, instrument
transformers and wildlife deterrent.
“SWPPP”
means
storm water pollution prevention plans.
“System
Average Interruption Duration Index”
or
“SAIDI”
means
the average interruption duration per customer served per year.
“System
Average Interruption Frequency Index”
or
“XXXXX”
means
the average number of times a customer’s service is interrupted during a
year.
“System
Emergency Operations Procedures Manual”
means
the manual that defines the operating policies and procedures used during
an
ERCOT short supply advisory or an ERCOT emergency electric curtailment plan
(EECP) condition, and that addresses inadequate generation or other negative
grid impacts during adverse weather conditions. This manual also defines
reporting requirements to PUCT, the U. S. Department of Energy and
ERCOT.
“System
One-Line”
means
a
single line electrical representation of Substation and Transmission Line
facilities.
“System
Operator”
means
the TXUED entity
which is expressly responsible for the control and operation and which directs
to reconfiguration of the Electrical System. These responsibilities presently
reside in TXUED’s Transmission Grid Management and in TXUED’s Distribution
Operating Centers in Dallas and Ft. Worth.
“Termination
Assistance Plan”
has
the
meaning set forth in Section
4.3(a)(ii)
of this
Services Agreement.
“Texas
Department of Transportation”
or
“TXDOT”
means
the State of Texas agency with applicable VM standards for managing vegetation
along state highways.
“Texas
Forest Service”
or
“TFS”
means
the State of Texas department in cooperation with the Texas A&M University
system.
“TGM”
means
transmission grid management.
“TGO”
means
transmission grid operations.
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“TMS”
means
transmission management system, which includes the energy management system
used
to monitor and control Substations and Transmission Lines.
“Total
Cost of Ownership”
means
the total net cost of a Product, including initial price, expected life,
operating cost and salvage cost.
“Tower”
means
the Services described in each subsidiary Schedule to Schedule
E
or any
portion of the Services that are designated within a subsidiary Schedule
to
Schedule
E
as
comprising a Tower.
“TPIT”
means
transmission project information tracking.
“Transformation
Milestone”
has
the
meaning set forth in Section
4.2(i)
of this
Services Agreement.
“Transition
Milestone”
has
the
meaning set forth in Section
4.2(c)
of this
Services Agreement.
“Transmission/Distribution
Step-Down Substations”
means
Distribution Step-Down Substations located within Transmission Switching
Stations or within Generation/Transmission Switching Stations.
“Transmission
Line”
means
Transmission Overhead Line Facilities, Transmission Underground Facilities
and
ROW rated at Nominal Voltages.
“Transmission
Repair Center”
means
the TXUED shop used to fabricate replacement parts and to stock specialty
equipment parts for routine and reactive maintenance of Substation
equipment.
“Transmission
Overhead Line”
means
the following components: structures (includes lattice structures, wood,
concrete, steel tower and steel pole), wire, insulators, hardware, foundations,
grounding, lightning shielding, fiber optic communication paths, guys, anchors,
aerial marker balls, aerial lights, cathodic protection, surge arrestors,
wildlife protection, switches, motor operators, SCADA, automatic sectionalizing
equipment, and other associated components. Transmission Overhead Line
Facilities may be jointly used by other entities upon approval by
TXUED.
“Transmission
ROW Facilities”
means
land held in easement or owned in fee upon which Transmission Overhead Line
Facilities and Transmission Underground Line Facilities reside and includes
land, gates, fences, barriers, culverts and roads.
“Transmission
Switching Stations”
means
interconnect portions of the utility system transmission network, and may
include transformation between transmission network voltage levels.
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“Transmission
System”
means
the electric grid encompassing Transmission Lines and Substations.
“Transmission
Underground Line”
means
the following components: underground transmission cable, terminations,
termination Substation items, duct banks, pumping stations, cathodic protection,
and other associated components.
“Tree
Growth Regulator”
or
“TGR”
means
the process where a chemical is applied or injected into a tree system (may
include soil treatments) for slowing or retarding future tree growth. It
is
usually applied to a tree that may grow at a much higher rate than other
trees
on the circuit.
“Tree
Line USA”
means
the annual recognition for utilities committed to the requirements as set
forth
under the National Arbor Day Foundation and approved in cooperation with
the
Texas Forest Service.
“Tree
Removal Guidelines”
means
the standard removal criteria described within the VM Guidelines and reviewed
periodically to support current circuit cycle.
“TSN”
means
the assigned identification number for a Product.
“TXDOT”
means
the Texas Department of Transportation.
“UAA”
means
the Utility Arborist Association.
“Utility
Facilities”
means
all Resources used to provide electric transmission and distribution services,
including all Distribution Step-Down Substations, Distribution Systems,
Generating Switching Stations, Generation/Transmission Switching Stations,
S&T, S&T Databases, Substations, Switchyard Items, TMS,
Transmission/Distribution Step-Down Substations, Transmission Lines,
Transmission Overhead Lines, Transmission ROW Facilities, Transmission Switching
Stations, Transmission Systems and Transmission Underground Lines.
“Utility
Industry Average Reliability”
means
the average of PA Consulting T&D Best Practices Survey, Public Service
Electric & Gas Peer Panel Survey, Southern Company Distribution Benchmarking
Study and EEI Reliability Report.
“VEE”
means
the process of validating, editing and estimating data.
“Vendor
ERP System”
means
Vendor’s ERP system (currently based on Oracle software), the configuration and
implementation of the system and related Software, all related materials,
and
all intellectual property and proprietary rights therein.
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“Vendor
Licensed Materials”
means
Materials that are licensed,
leased or otherwise obtained by Vendor from a third party,
excluding in each case any Work Product paid for entirely by TXUED,
and used
in connection with the Services.
“Vendor
Owned Materials”
means
Materials that are owned,
acquired or developed by or on behalf of Vendor or Vendor’s
Affiliates,
excluding in each case any Work Product paid for entirely by TXUED and any
Vendor Licensed Materials, and
used
in connection with the Services.
“Vendor
Owned Resources”
has
the
meaning set forth in Section
12.2(a)
of this
Services Agreement.
“Vendor
Service Delivery Executive”
has
the
meaning set forth in Section
7.1
of this
Services Agreement.
“VM”
means
vegetation management.
“VM
Distribution Guidelines”
means
TXUED’s preferred strategy for chemically treating all trees (except on
residential property) at or below the neutral in lieu of pruning such trees.
The
VM Distribution Guidelines include industry standards, ANSI guidelines and
Texas
Forest Service Oak Xxxx Guidelines.
“VM
Guidelines”
means
a
set of materials for describing standards, methods, procedures and processes,
including the VM Distribution Guidelines and the VM Transmission
Guidelines.
“VM
Transmission Guidelines”
means
TXUED’s preferred strategy for clearing the floor within transmission rights of
ways so that only grasses exist. The VM Transmission Guidelines include industry
standards, ANSI guidelines and Texas Forest Service Oak Xxxx
Guidelines.
“VM
Trouble Codes”
means
outage codes with weather descriptions for describing vegetation-related
incidents. They are outages that occur during normal or adverse weather
conditions and further coded as ON-ROW, OFF-ROW or VINE/IVY.
“Warning
Letter”
means
the action taken, including written or verbal warning and/or notification
of law
enforcement, to educate an entity that has notified TXUED or TXUED Third
Party
Contractors of its intent to violate the State of Texas Health & Safety
Code, also known as Chapter 752 - Texas Health & Safety Code. Such violation
includes pruning a tree in close proximity to a high voltage power line.
“Winter
Preparedness”
means
the Construction, Maintenance and Operations work and reporting necessary
to
prepare the Electrical System for anticipated winter loading
conditions.
“Work
Product”
shall
have the meaning set forth in Exhibit
1
of the
Master Agreement.
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DETAILED
TRANSITION PLAN
To
be
completed pursuant to Section
4.2(b)
of this
Services Agreement.
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KEY
VENDOR PERSONNEL
***
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STATEMENT
OF WORK
1. INTRODUCTION
AND GENERAL OBLIGATIONS
***
2. GUIDING
PRINCIPLES
***
3. COMPLIANCE
WITH LAWS
***
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SOFTWARE
|
Application
|
|
ACIS
-Automated Contractor Invoicing System
|
|
ADRS
- Automated Distribution Reporting System
|
|
AERS
- Automated Emergency Reporting System
|
|
AIS
- Aerial Inspections System
|
|
AMI
|
|
Ares
Landmark
|
|
ASAP
|
|
ASPEN
|
|
Aspen
Learning Center
|
|
Autoview
|
|
CATS
- HOT CATS - Computer Assisted Trouble System - Disaster
Recovery System -
Boulder Colorado
|
|
CATS
- Computer Assisted Trouble System
|
|
CC
Information System
|
|
CC
Switching and Tagging
|
|
Chemical
Inventory
|
|
CIS
- Customer Information System
|
|
CITRIX
|
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|
Application
|
|
Clearance
Tracking
|
|
CNO
- Customer Notification of Outages System
|
|
CPC
Viewer
|
|
CYME
|
|
Data
Mining Tool
|
|
DBNews
|
|
DBUINET
|
|
DEMS
- Distribution Equipment Management System
|
|
DFR
- Digital Fault Recorder
|
|
DFR
- Report Viewer
|
|
DIS
- Distribution Information System
|
|
Documentum
|
|
DPS-
Distribution Planning System
|
|
Driver
Management On-Line
|
|
E*Gate
|
|
EDIFY
|
|
EIS
- Employment Information System
|
|
Emergency
Restoration
|
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|
Application
|
|
EMT
- Estimating and Materials Tracking
|
|
E-Portal
|
|
EPRI
SDW V2.0 Substation Design
|
|
Events
Logger
|
|
EZPAY
|
|
FALLS
|
|
FEPI
|
|
FIM
- Financial Information Management System
|
|
FIM-FAM
|
|
FMIS
- Facility Meter Information System
|
|
XXXX
- Forecasting Requirements Engineering Database
|
|
Geomedia
|
|
Image
Wave
|
|
IVR
|
|
KVAR
Management
|
|
Laboratory
Information Management System
|
|
Lotus
Notes
|
|
Manager
Express
|
|
Maximo
- Distribution
|
|
Maximo
- Transmission
|
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|
Application
|
|
Microstation
TDMS
|
|
Mobile
Data - Mobile Data Computing
|
|
Navigator
|
|
ODMP
|
|
Outlook
|
|
P3e
- Primavera - Distribution
|
|
P3e
- Primavera - Transmission
|
|
PI
Historian - Process Information
|
|
Plant
Xxxx
|
|
PMMS/Prolenium
- Purchasing and Materials Management System
|
|
Polaris
|
|
PONS
- Planned Outage Notification System
|
|
PTLoad
and Transformer ratings program
|
|
Right
Now
|
|
Rooftop
|
|
Shell
Accounts Database
|
|
SOSF
Waste Tracking
|
|
Spill
Management System
|
|
SQM
/ ERM
|
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|
Application
|
|
TAD
- Transmission Administration
|
|
Tadpole-Cartesia
|
|
Telalert
|
|
Teleatlas
database
|
|
XXX
- Transmission Engineering Database
|
|
Transmission
Document Management System
|
|
TFCC
|
|
TIRS
- Transmission Interruption Reporting Systems
|
|
TLM
-Transformer Load Mgmt
|
|
TMS
- Transmission Management System
|
|
TMS
Logger
|
|
T-Portal
|
|
Tree
Manager
|
|
Trouble
Density
|
|
Transformer
Load Management
|
|
VALTRAN
|
|
Weather
Collector & Sign Display
|
|
Work
Order Tracking System
|
|
Worktech
Time
|
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|
Application
|
|
Yucon
|
|
Custom
Applications - Centralized
|
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SERVICES AGREEMENT
TERMINATION
ASSISTANCE SERVICES
In
addition to the Termination Assistance Services described in this
Services
Agreement, Termination Assistance Services may include, as requested
by TXUED,
the Services, functions and responsibilities set forth below.
| A. |
Risk
Identification.
|
Vendor
shall notify TXUED of significant risk factors relating to the
transition of the
Services and, at TXUED’s request, shall design plans and contingencies to
mitigate such risk.
| B. |
Termination
Management Team.
|
Vendor
and TXUED shall each assemble a transition management team, at
such location as
specified by TXUED, within ten (10) business days following TXUED’s notice of
termination of the Master Agreement or this Services Agreement
as to all or part
of the Services or ten (10) business days after TXUED’s notice of its decision
not to extend the Term of
the
Master Agreement or the Services Agreement Term.
Vendor’s transition management team shall provide to TXUED a detailed
methodology for the complete review, certification and acceptance
of the
Termination Assistance Services and related Resources. In addition,
Vendor’s
transition management team shall perform a complete assessment
of the
documentation, lists, instructions, specifications and other informational
materials required to be delivered under this Schedule
I
and
shall update such Resources as and to the extent appropriate. Except
as
otherwise provided herein and to the extent practicable, this assessment,
together with such documentation, lists, instructions, specifications
and other
informational materials and any resulting updates, shall be delivered
to TXUED
no later than thirty (30) days prior to the effective date of the
expiration or
termination of the Master Agreement or this Services Agreement.
Vendor’s
transition management team and identified subject matter experts,
as approved by
TXUED, will remain at the location specified by TXUED for a minimum
of sixty
(60) calendar days after the effective date of the expiration or
TXUED’s
termination of the Master Agreement or this Services Agreement,
or as otherwise
directed by TXUED.
| C. |
Knowledge
Transfer.
|
As
requested by TXUED, Vendor shall
provide
for a transfer of knowledge regarding the Services, TXUED’s requirements and
related topics so as to facilitate the provision of the Services
by TXUED or its
designee(s). This knowledge transfer shall consist of:
|
1.
|
Providing
to personnel designated by TXUED reasonable training
(in a manner mutually
agreed to by the Parties) in the performance of the Services
that are to
be transferred;
|
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|
2.
|
Providing
to TXUED and its designee(s) information regarding the
Services as
reasonably necessary to implement the termination assistance
plan, and
providing such information regarding the Services as
reasonably necessary
for TXUED or its designee(s) to assume responsibility
for continued
performance of Services in an orderly manner so as to
minimize disruption
in the operations of TXUED and the Eligible Recipients,
including (i) the
information and work product related to the work processes
and Software
for which Vendor has financial or operational responsibility;
and (ii) key
support contacts (names, business phone numbers, fax
numbers, e-mail
addresses and business postal addresses) of TXUED Personnel
and
third-party personnel, and of Vendor Personnel during
the transition from
Vendor to TXUED or its designee(s);
|
|
3.
|
Subject
to the terms of this Services Agreement, providing TXUED
and its
designee(s) immediate access to Equipment, Materials,
supplies, tools,
Equipment, vehicles, information, facilities, Software,
employees, third
parties and other Resources used by Vendor to provide
the Services, and
providing TXUED and its designee(s) information concerning
such items, all
as necessary for transition of the Services to TXUED
or its designee(s);
|
|
4.
|
Providing
Software and hardware to which TXUED or its designee(s)
is entitled under
the Agreement, including a complete production image
of mainframe and
midrange/server Systems, object code, related work product,
master file
and field descriptions, record layouts, object libraries,
reference files,
technical specifications, and all other Materials and
user documentation
and manuals for such Software, along with run documentation
and job
control or parameter listings necessary for TXUED or
its designee(s) to
run such Software and provide the
Services.
|
|
5.
|
Supplying
information concerning Equipment, Software, types and
skills of employees,
third parties and other Resources used by Vendor to provide
the Services,
as may be reasonably necessary for TXUED or its designee(s)
to assume
responsibility for the Services;
|
|
6.
|
Explaining
the Change Control Process, problem management process,
Policy and
Procedures Manual, Reports and other standards and procedures
to TXUED’s
or its designee’s operations staff;
|
|
7.
|
Providing
TXUED and its designee(s) with reasonable telephone access
to Vendor
Personnel during the twelve (12) months following the
conclusion of
Termination Assistance Services; provided, however, that
Vendor shall not
be obligated to provide a level of such access that would
materially
disrupt the then-current activities of such Vendor Personnel;
|
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|
8.
|
Explaining
the extent and nature of the impact of governmental or
regulatory
requirements compliance (to the extent Vendor is responsible
for such
regulatory compliance), if any, on the Services; and
|
|
9.
|
Assisting
in identifying alternate sources of Resources, including
skilled labor and
spare Equipment parts.
|
| D. |
Human
Resources Transfer.
|
| 1. |
All
Services described in this Services Agreement and in
Schedule
E,
including the Services related to safe and reliable electric
delivery, are
essential to TXUED; therefore, Vendor shall provide immediate
assistance
required by TXUED or its designee(s) in hiring Vendor
Personnel (pursuant
to the terms of this Services Agreement) or substitute
employees that are
trained, competent and possessing any required certification
to perform
the Services. Such assistance shall consist of: (i) providing a
listing of Vendor Personnel used to provide the Services
in sufficient
detail to determine their applicability to the transition
process and
on-going operation and support of TXUED’s or its designee’s performance of
the Services; (ii) making available, subject to applicable Law and
confidentiality requirements and solely for internal
TXUED use,
information on current salary and benefit structures,
both overall and in
matrices by individual Vendor Personnel performing the
Services, as
required in order to make hiring decisions; (iii) providing a current
organizational chart by individual Vendor Personnel assigned
to perform
the Services; (iv) assessing the skills mix of Vendor Personnel
providing the Services; (v) identifying any then-current or
anticipated employee resource requirements and comparing
those
requirements with the skill set of the Vendor Personnel
then assigned to
perform the Services; and (vi) allowing TXUED immediate
access to Vendor
Personnel through personal contacts such as phone calls,
mail (including
e-mail) and face-to-face meetings.
|
|
2.
|
Subject
to applicable Laws, during the Termination Assistance
Services period,
TXUED shall provide Vendor with a list of those Vendor
Personnel, if any,
to whom TXUED does not in good faith expect to make offers
of employment
and those Vendor Personnel who have finally declined
offers of employment,
and shall update such list from time to time. TXUED’s inclusion or
omission of any Vendor Personnel from the list supplied
to Vendor shall
neither preclude TXUED from making an offer of employment
to those Vendor
Personnel omitted from the list nor obligate TXUED to
make an offer to
those included on the list.
|
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|
F.
|
Operational
Transfer.
|
Vendor
shall perform all activities reasonably required to effect a smooth
transition
of operational responsibility for the Services. Subject to the
terms of this
Services Agreement, this shall include providing to TXUED or its
designee(s) the
items described below and completing the tasks described below:
|
1.
|
Pre-Transition
Services. At
TXUED’s request, pre-transition services of Vendor shall
include:
|
| a. |
Providing
to TXUED all documentation used by Vendor to provide the
Services,
including Vendor’s back-up tapes (to the extent applicable to TXUED),
disaster recovery plans, TXUED Data, Equipment, Software,
Services,
desktop, server and mainframe Software inventories, TXUED
System
configuration information and all other technical
information;
|
| b. |
Identifying,
recording and providing release levels for Software and
updating such
records of release levels prior to and during transition
of the
Services;
|
| c. |
Halting
development and implementation of all changes to the Systems,
Software or
other Resources utilized in performing the Services unless
otherwise
requested by TXUED, except maintenance necessary to address
processing
problems;
|
| d. |
Providing
reasonable assistance to TXUED or its designee(s) in notifying
third party
suppliers of procedures to be followed during the transition
of Services;
|
| e. |
Assisting
TXUED or its designee(s) in transferring naming
conventions;
|
| f. |
Providing
multiple tape copies of TXUED’s DASD volumes as requested by
TXUED;
|
| g. |
Providing
interim copies of TXUED Data, as reasonably requested by
TXUED;
|
| h. |
Transferring
physical and logical security processes and tools, including
cataloging
and tendering all badges and keys for TXUED Sites and TXUED
Facilities,
documenting ownership and access levels for all passwords,
providing all
security tables and rules, and instructing TXUED or its
designee(s) in the
use and operation of security controls;
|
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| i. |
Providing,
in then-current format, source and object code and documentation
for all
Software modifications and interfaces which are in Vendor’s possession or
control and to which TXUED or its designee(s) are entitled
under this
Services Agreement;
|
| j. |
To
the extent applicable, providing topology diagrams and all
relevant
documentation describing TXUED’s Systems and
networks;
|
| k. |
To
the extent applicable and subject to the terms of this Services
Agreement,
providing copies of all relevant Equipment leases, Third Party
Software
licenses, Third Party Contracts and warranty information related
to the
provision of the Services;
|
| l. |
To
the extent applicable, delivering support profiles, enhancement
logs,
problem tracking/resolution documentation (both current and
historic),
status reports End User profiles from the help desk and other
informational documentation maintained by Vendor and associated
with the
Services;
|
| m. |
Identifying
projects and other work expected to be in progress, if any,
as of the
effective date of termination or expiration. With respect to
such work,
documenting current status, stabilizing for continuity during
transition,
and providing any required training to achieve transfer of
responsibility
without loss of momentum and to achieve an orderly hand-off,
or (as
mutually agreed) providing a bridge services agreement to complete
essential projects after the effective date of termination
or expiration
of the Master Agreement or the Services Agreement Term and
the Termination
Assistance Services period;
|
| n. |
Identifying
any pending claims, complaints, disputes or encroachments and
Vendor’s
action plan to resolve such items. Upon TXUED’s approval of such action
plan, resolving pending claims, complaints, disputes or encroachments
pursuant thereto; and
|
| o. |
Documenting
and delivering data and databases specific to the operation
of the
Services, including those for tracking projects, reported problems
and
service information requests, and those used for knowledge
transfer.
|
|
2.
|
Transition Services. At
TXUED’s request, transition services of Vendor shall
include:
|
| a. |
In
conjunction with TXUED or its designee(s), conducting a rehearsal
of the
transition prior to the cutover at such time as is reasonably
acceptable
to both Parties;
|
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| b. |
Unloading
all requested data files and other TXUED Data and TXUED Proprietary
Information from Vendor Owned Software and Vendor Third Party Software.
Returning all TXUED Data and other TXUED Proprietary Information
in
accordance with this Services Agreement. Transferring responsibility
for
off-site storage of both tape and documents. Making available data
files
and other TXUED Data and TXUED Proprietary Information stored on
mainframes, midrange devices, servers and PCs for which Vendor
is
responsible, including back-up tapes. Returning to TXUED or its
designee(s) any remaining property of TXUED in Vendor’s possession or
under Vendor’s control, including any remaining Reports, TXUED Owned
Materials, and, subject to the terms of this Services Agreement,
TXUED
Data and other TXUED Proprietary Information. At TXUED’s request, securely
erasing, wiping clean or otherwise destroying any remaining copies
of
TXUED Software or data files and, subject to the terms of this
Services
Agreement, all other TXUED Data and TXUED Proprietary Information;
|
| c. |
Producing
process maps, reports and tapes of all requested TXUED data files
(with
content listing) and printouts of control file
information;
|
| d. |
Providing
reasonable assistance to TXUED or its designee(s) in loading its
Systems;
|
| e. |
Providing
assistance to TXUED or its designee(s) in transitional staffing
and the
re-deployment of Equipment, Materials, supplies, tools, Equipment,
vehicles, information, facilities, Software and other
Resources;
|
| f. |
Providing
all support, information and services necessary to TXUED pertaining
to
Vendor’s contractors as required of Vendor Personnel under this
Agreement;
|
| g. |
Providing
image copies of the TXUED operating Systems environment in a dump/restore
mode;
|
| h. |
Providing
all source and object code and related documentation in Vendor’s
possession for TXUED Owned Software and TXUED licensed Third Party
Software and, subject to the terms of this Services Agreement,
Vendor
Owned Software and Vendor licensed Third Party
Software;
|
| i. |
Assisting
with physical de-installation and transportation of Equipment, Materials,
supplies, tools, Equipment, vehicles, information, Software and
other
equipment owned by TXUED, and related physical assets from Vendor
premises;
|
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| j. |
Providing
TXUED and its designee(s) with coverage under Vendor’s disaster recovery
service until the date on which the transition of the Services
covered by
such disaster recovery services to TXUED or its designee(s) is
complete;
and
|
| k. |
Providing
TXUED or its designee(s) with facility environmental testing reports,
as
requested by TXUED, and completing any steps required by TXUED
to address
concerns that arose during Vendor’s occupation or use of such TXUED
Facilities.
|
3. Post-transition
Services.
After
transition of the Services to TXUED or its designee(s), Vendor shall provide
additional assistance as reasonably requested by TXUED for the continuity
of
operations. Vendor shall return to TXUED any remaining property of TXUED
in its
possession or under its control, including any Reports, TXUED Owned Materials,
and, subject to the terms of this Services Agreement, TXUED Data and other
TXUED
Proprietary Information.
4. Removal
of Property.
During
the period in which Vendor is providing Termination Assistance Services:
| a. |
prior
to removing any documents, Equipment, Materials,
supplies, tools, Equipment, vehicles, information, Software or
other
Resources from any TXUED Site other than in the ordinary course
of
providing the Services, Vendor shall provide appropriate notice
to TXUED
identifying the property it intends to remove. Such identification
shall
be in sufficient detail to apprise TXUED of the nature and ownership
of
such property;
|
| b. |
Other
than in the ordinary course of providing the Services, Vendor shall
not
remove property owned by TXUED from a TXUED Site without the prior
written
consent of TXUED; and
|
| c. |
Vendor
shall comply with the removal procedures reasonably established
by
TXUED for
removal of property from TXUED Sites.
|
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5. Media
Support
Unless
otherwise approved, Vendor shall make no announcements or notifications
to
officials, regulators, media, etc. regarding expiration or termination
of the
Master Agreement or this Services Agreement and future plans. Upon TXUED’s
request, Vendor shall provide support with regard to such announcements
or
notifications.
6. Continued
Services.
If
Vendor
has integrated TXUED’s network infrastructure, work management processes or any
other System utilized in day-to-day services into its own proprietary network
to
provide Services to TXUED, then for a period of up to two (2) years following
the expiration or termination of the Term or the Termination Assistance
period,
upon TXUED’s request, Vendor shall continue to provide such network
infrastructure, process or System and other related Services at the rates,
and
subject to the terms and conditions, set forth in this Services Agreement.
For
the avoidance of doubt, this obligation does not apply to a communications
network owned by a third party.
TXUED
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VENDOR CONFIDENTIAL
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SERVICES AGREEMENT
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MATERIAL REDACTED AND FILED SEPRATELY WITH THE COMMISSION.
TXUED
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SERVICES AGREEMENT
TERMINATION
CHARGES
For
purposes of this Services Agreement, Termination Charges shall equal
the present
value of the Remaining Spend. For purposes of determining the present
value of
the Remaining Spend:
| 1. |
The
“Remaining
Spend”
shall mean the result of the following calculation: (($8,700,000,000
minus
the total aggregate amount of all Charges (including, for the
avoidance of
doubt, amounts paid by TXUED for Termination Assistance Services)
that are
paid by TXUED during the period of time from the Services Agreement
Commencement Date through the date of Substantial Completion
of all
Termination Assistance Services requested by TXUED) multiplied
by thirteen
percent (13%)). If the result of the foregoing calculation
is a negative
number, then no Termination Charges shall be payable in connection
with
terminating this Services Agreement.
|
| 2. |
The
Remaining Spend shall be allocated ratably over the number
of Contract
Years remaining in the Initial Services Agreement Term following
the date
of Substantial Completion of all Termination Assistance Services
requested
by TXUED, pro rated as applicable for partial Contract Years.
For purposes
of example only, if Substantial Completion occurs on the last
day of the
seventh (7th)
Contract Year, then for purposes of determining the present
value of the
Remaining Spend, three (3) payments shall be assumed, one for
each
Contract Year remaining in the Initial Services Agreement
Term.
|
| 3. |
The
discount rate shall equal the then-current rate set by Citibank,
N.A. as
its prime lending rate.
|
The
discount rate and the present value of the Remaining Spend shall be
determined
as of the date of Substantial Completion of all Termination Assistance
Services
requested by TXUED. Such amount shall be payable within thirty (30)
days
following the date of Substantial Completion of all Termination Assistance
Services requested by TXUED. No Termination Charges shall be payable
in
connection with any termination of this Services Agreement following
the end of
the Initial Services Agreement Term.
TXUED
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TXUED
FACILITIES
|
PROPERTY
NAME
|
ADDRESS
|
SPACE
ALLOCATED TO VENDOR
|
|
Dallas
(TMSSB)
|
0000
Xx. Xxxx Xx.
|
No
space allocated
|
|
Dallas
(TGM)
|
0000
Xx. Xxxx Xx.
|
No
space allocated
|
|
Energy
Plaza
|
0000
Xxxxx Xxxxxx
|
No
space allocated
|
|
Fort
Worth (DOC)
|
1201
Sylvania
|
· Current
office space allocated for Distribution Technicians
· Current
storage space allocated for materials and tools for Technicians
and
Troublemen
· Use
of common areas and parking lots by Technicians and
Troublemen
|
|
Xxxx
Rose Transmission
|
Comanche
Peak SES
|
100%
of square footage
|
|
Irving
(DOC)
|
0000
Xxxxx Xx.
|
· Current
office space allocated for Distribution Technicians
· Current
storage space allocated for materials and tools for Technicians
and
Troublemen
· Use
of common areas and parking lots by Technicians and
Troublemen
|
|
Lincoln
Plaza
|
500
X. Xxxxx
|
17,000
square feet
(12%
of a total of 147,000 square Ft.)
|
TXUED
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TXUED
AND
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TXUED
AND
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SERVICES AGREEMENT
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SEPARATELY
WITH THE COMMISSION.
TXUED
AND
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SERVICES AGREEMENT
***
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COMMISSION.
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