Confidential Treatment Requested
under 17 C.F.R. Sections 200.80 (B)(4),
200.83 and 230.406
CONTRACT NO. 5600001842
AGREEMENT
FOR
TECHNICAL SERVICES
BETWEEN
SEMPRA ENERGY
AND
XXXXXXX.XXX
FOR
INFORMATION TECHNOLOGY CONSULTING SERVICES
TABLE OF CONTENTS
ARTICLE.........................................................PAGE
1. SCOPE..........................................................1
2. COMMENCEMENT AND COMPLETION OF WORK............................1
3. REPRESENTATIVES................................................1
4. RESPONSIBILITY OF XXXXXXX.XXX..................................2
5. MONITORING.....................................................2
6. CHANGES........................................................2
7. DELAYS.........................................................2
8. OWNERSHIP OF INTELLECTUAL PROPERTY AND MATERIAL................3
9. REPORTS........................................................3
10. SUBCONTRACTORS................................................4
11. COMPENSATION..................................................4
12. PAYMENT.......................................................4
13. AUDIT.........................................................5
14. TAXES.........................................................6
15. INDEPENDENT XXXXXXX.XXX.......................................6
16. WARRANTY......................................................7
17. INSURANCE.....................................................7
18. INDEMNITY.....................................................8
19. GOVERNING LAW.................................................9
20. COMPLIANCE WITH LAWS..........................................9
21. TERMINATION...................................................9
22. LIENS........................................................10
23. ASSIGNMENT...................................................10
24. EQUAL EMPLOYMENT OPPORTUNITY.................................10
25. CALENDAR YEAR 2000 COMPLIANCE................................11
26. NONWAIVER....................................................11
27. DISPUTES.....................................................11
28. NOTICES OR DEMANDS...........................................11
29. CONFIDENTIALITY..............................................12
30. TIME OF ESSENCE..............................................14
31. VALIDITY.....................................................14
32. SURVIVAL.....................................................14
33. NO ORAL MODIFICATIONS........................................14
34. CAPTIONS.....................................................14
35. COUNTERPARTS.................................................14
36. AUTHORITY....................................................14
37. JOINT AND SEVERAL LIABILITY..................................14
38. COMPLETE AGREEMENT...........................................15
SCHEDULE A - TECHNICAL SERVICES SCOPE OF WORK
SCHEDULE B - SUBCONTRACTORS LIST
SCHEDULE C - RESERVED
SCEHDULE D - COMPENSATION
SCHEDULE E - REQUIRED INSURANCE
SCHEDULE F - INTENTIONALLY OMITTED
SCHEDULE G - WORK AUTHORIZATION
SCHEDULE H - WEEKLY TIME CARD
SCHEDULE I - TRAVEL GUIDELINES
SEMPRA ENERGY
San Diego, California
TECHNICAL SERVICES AGREEMENT
This Technical Services Agreement ("Agreement") is made effective as of
January 1, 2000, by and between Sempra Energy (SEMPRA ENERGY) and Xxxxxxx.xxx
("Xxxxxxx.xxx").
The Parties hereby agree as follows:
1. SCOPE
Xxxxxxx.xxx shall perform, at its own proper cost and expense, in
workmanlike fashion to the industry standard, to the satisfaction of SEMPRA
ENERGY, the following generally described Technical Services (hereinafter,
the "Services"):
Information Technology Consulting Services
The Services, including the scope of work, specifications, schedule of
milestones and deliverables, and performance standards, are more fully
described in SCHEDULE A - TECHNICAL SERVICES SCOPE OF WORK (hereinafter, the
"Scope of Work"), attached hereto and made a part hereof by this reference.
2. COMMENCEMENT AND COMPLETION OF WORK
This Agreement shall commence January 3, 2000, and shall be in full
force and effect through June 30, 2001, unless terminated earlier in
accordance with Article 21. Xxxxxxx.xxx agrees to commence and perform the
Services in accordance with the requests of SEMPRA ENERGY Representative. The
nature of the Services is such that timely performance is critical to the
orderly progress of related work and to the operating schedule of SEMPRA
ENERGY.
3. REPRESENTATIVES
3.1. SEMPRA ENERGY Representative: Xxxxx Xxxxx
Phone (000) 000-0000
Fax (000) 000-0000
SEMPRA ENERGY designates, and Xxxxxxx.xxx accepts, the individual
named above as SEMPRA ENERGY Representative for all matters relating to
Xxxxxxx.xxx's performance of Services under this Agreement. The actions
taken by the SEMPRA ENERGY Representative regarding such performance shall be
deemed the acts of SEMPRA ENERGY. SEMPRA ENERGY may, upon written notice to
Xxxxxxx.xxx, pursuant to Article 28 hereof, change the designated
Representative.
3.2. Xxxxxxx.xxx Representative: Xxxxx Xxxxxxxx
000 Xxxxxxxx
Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
(000) 000-0000 x0000
Xxxxxxx.xxx designates, and SEMPRA ENERGY accepts, the individual
named above as Xxxxxxx.xxx Representative for all matters relating to
Xxxxxxx.xxx's performance of Services under this Agreement. The actions taken
by Xxxxxxx.xxx Representative shall be deemed the acts of Xxxxxxx.xxx.
4. RESPONSIBILITY OF XXXXXXX.XXX
Xxxxxxx.xxx shall perform the Services in accordance with
established professional and business standards and ethics. All Services
shall conform to the Scope of Work and performance standards set forth in the
Scope of Work. Xxxxxxx.xxx shall remedy any and all deficiencies in its
Services which result from Xxxxxxx.xxx's failure to employ commercially
reasonable efforts to adhere to the Scope of Work.
5. MONITORING
All Services performed by Xxxxxxx.xxx shall be subject to the
monitoring and approval of SEMPRA ENERGY at all times, but such right of
monitoring or actual approval of Services shall not relieve Xxxxxxx.xxx of
responsibility for the proper performance of the Services. Xxxxxxx.xxx shall
provide to SEMPRA ENERGY or SEMPRA ENERGY's designee access to Xxxxxxx.xxx's
facility or facilities where the Services are being performed and sufficient,
safe and proper work conditions for such services and Xxxxxxx.xxx shall
furnish to SEMPRA ENERGY such information concerning its operations or the
performance of the Services as SEMPRA ENERGY shall reasonably request.
6. CHANGES
6.1 Either party may initiate a request for a change in this
Agreement by advising the other Party of the change in writing. As soon as
practicable after notice of such request, Xxxxxxx.xxx shall prepare and
forward to SEMPRA ENERGY in writing the proposed changes to this Agreement.
6.2 If the parties fail to agree on an Amendment to this Agreement
("Amendment") relating to a proposed change, SEMPRA ENERGY reserves the
option to retain others to provide the Services subject to the change order.
6.3 Xxxxxxx.xxx shall implement a change in this Agreement only after
Xxxxxxx.xxx has received a written Amendment executed by an authorized
procurement agent or officer of SEMPRA ENERGY. All changes shall be
performed under the Terms and Conditions of this Agreement. Xxxxxxx.xxx
hereby expressly waives any compensation,
reimbursement of expenses and any other right to receive payment with respect
to any change NOT authorized by a written Amendment to this Agreement.
7. DELAYS
Xxxxxxx.xxx shall notify SEMPRA ENERGY in writing immediately of any
delay, or anticipated delay in Xxxxxxx.xxx's performance of this Agreement
due to causes or circumstances beyond the reasonable control of Xxxxxxx.xxx,
and the reason for and anticipated length of the delay. SEMPRA ENERGY may
extend the date of performance for a period equal to the time lost by reason
of the delay if SEMPRA ENERGY, in its reasonable judgment, determines that
the delay is due to causes or circumstances beyond the reasonable control of
Xxxxxxx.xxx. Any extension to the contract term or milestone schedule
pursuant to this Article, shall be documented by a written Amendment to this
Agreement.
8. OWNERSHIP OF INTELLECTUAL PROPERTY AND MATERIAL
8.1 Any idea, invention, work of authorship, drawing, design,
formula, algorithm, utility, tool, pattern, compilation, program, device,
method, technique, process, improvement, development or discovery (hereinafter,
collectively, "Invention"), whether or not patentable, or copyrightable, or
entitled to legal protection as a trade secret or otherwise, that Xxxxxxx.xxx
may conceive, make, develop, create, reduce to practice, or work on, in whole
or in part, in the course of performing the Services shall be owned by SEMPRA
ENERGY and shall be delivered to SEMPRA ENERGY upon completion of the
Services. Xxxxxxx.xxx of the Services. Xxxxxxx.xxx agrees that any
copyrightable invention shall constitute a "work made for hire." Xxxxxxx.xxx
hereby assigns to SEMPRA ENERGY, without royalty or further consideration,
Xxxxxxx.xxx's entire right, title and interest in and to any such inventions.
8.2 Xxxxxxx.xxx hereby grants to SEMPRA ENERGY an irrevocable,
assignable, nonexclusive royalty-free unrestricted license to use, copy,
distribute and make derivatives of any proprietary rights or specialized
knowledge of Xxxxxxx.xxx that are part of any work product furnished by
Xxxxxxx.xxx to SEMPRA ENERGY under this Agreement for SEMPRA ENERGY's and its
affiliates' use. Prior to furnishing to SEMPRA ENERGY any proprietary rights
of Contractor or any subcontractor, Contractor shall inform SEMPRA ENERGY in
writing of its plan to provide such rights and shall describe such rights in
sufficient detail so that SEMPRA ENERGY can understand that the scope of the
rights claimed by Contractor.
8.3 If requested by SEMPRA ENERGY, Xxxxxxx.xxx agrees to take all
actions necessary, at SEMPRA ENERGY's sole cost and expense, to obtain,
maintain or enforce patents, copyrights, trade secrets and other proprietary
rights in connection with any Invention, and Xxxxxxx.xxx agrees that its
obligations under this Article shall continue beyond the termination or
completion of this Agreement.
8.4 Any and all material and information prepared, accumulated or
developed by Xxxxxxx.xxx, any subcontractor or their respective employees in
the scope of work performing the services, including, without limitation,
documents, drawings, calculations, maps, plans, estimates, specifications,
sketches, notes, reports, summaries, data models and samples (hereinafter,
collectively, the "Material"), shall become the property of SEMPRA ENERGY
when prepared or in process, whether or not delivered by Xxxxxxx.xxx.
Xxxxxxx.xxx shall deliver the Material, together with any other materials
furnished to Xxxxxxx.xxx by SEMPRA ENERGY hereunder, to SEMPRA ENERGY upon
request, and, in any event, upon termination or completion of this Agreement.
8.5 Contractor agrees that during the term of this Agreement and
for a period of eighteen (18) months following its expiration or termination.
Contractor will not provide any consulting services to any gas or electric
utility, any utility holding company, or any regulated or unregulated
subsidiary of a utility holding company, any power marketer or any other
company that provided energy information or energy purchasing related
products or services in the United States, unless that entity is a wholly or
partially owned direct or indirect subsidiary (i.e. at least 10% voting and
beneficial membership) of Sempra Energy.
8.6 Prior to working on any customized software, Contractor shall
identify in writing to SEMPRA ENERGY any third party development tools,
(whether or not commercially available), compilers, libraries or other source
code to be embedded in, used in the development of and/or necessary for the
maintenance of any customized software written by Contractor or any
subcontractor in accordance with Schedule A. In addition, prior to working
on the project, Contractor shall inform SEMPRA ENERGY of the cost of
procuring a perpetual royalty-free license to use, modify, translate and
create derivatives of the third party source code as part of the SEMPRA
ENERGY software, the cost of obtaining a run-time executable license to the
third party software and the cost of development tools (whether or not
commercially available). If SEMPRA ENERGY approves the project in accordance
with SCHEDULE A, then Contractor shall be responsible for initiating and
assisting SEMPRA ENERGY in the procurement, in the name of SEMPRA ENERGY, of
any third party license required to enable SEMPRA ENERGY to maintain, enhance
and create derivatives of its customer software, and, in the case of any
business line software, to enable SEMPRA ENERGY or its subsidiaries and
affiliates (including without limitation Soliance Networks, L.L.C., a Delaware
limited liability company) to sublicense SEMPRA ENERGY's software (with the
embedded third party code) on a shrink wrap basis.
9. REPORTS
Xxxxxxx.xxx shall provide periodic status reports in accordance with
Schedule A and as requested by the SEMPRA ENERGY Representative. Reports
shall be issued to the SEMPRA ENERGY Representative on a weekly basis and are
due by 2:00 p.m. every Friday. The reports shall contain weekly time sheet,
weekly accomplishments planned activities for the upcoming week, and issues
affecting current assignments. Reports shall make periodic comparisons of
the Services rendered to date against the Work Order, including any
milestones and estimated costs. Such reports shall include an explanation of
any significant variations, an identification of any potential or known
developments which may impact SEMPRA ENERGY, and any corrective actions
implemented.
10. SUBCONTRACTORS
Xxxxxxx.xxx shall at all times be responsible for the negligent or
illegal acts and omissions of subcontractors and individuals directly or
indirectly employed by them. Xxxxxxx.xxx shall be responsible for performance
of all the Services, whether performed by
Xxxxxxx.xxx or its subcontractors. This Agreement shall NOT give rise to
any contractual relationship between SEMPRA ENERGY and a subcontractor.
SEMPRA ENERGY shall NOT undertake any obligation to pay or to be responsible
for the payment of any sums to any subcontractor. Initial subcontractors are
referenced on SCHEDULE B - SUBCONTRACTORS LIST.
11. COMPENSATION
Xxxxxxx.xxx xxxxxx agrees to accept as full compensation for
satisfactory performance of the Services as described in Article 1 and
SCHEDULE A, the compensation that is outlined in SCHEDULE D - COMPENSATION.
Payments shall be made at the times and in the manner specified in Article 12.
12. PAYMENT
12.1. Xxxxxxx.xxx shall invoice SEMPRA ENERGY in accordance with
the daily rates set forth in SCHEDULE D. Invoices shall be submitted
bi-weekly, with the beginning of the pay period being a Monday and the end of
the pay period being on a Friday. Invoices shall include at a minimum the
Contract Number, Work Authorization Number, Xxxxxxx.xxx's employee name,
hours worked per pay period, daily rate and extended amount for each of
Xxxxxxx.xxx's employees, and the total amount due for the pay period.
Xxxxxxx.xxx shall have complete support documentation of all charges
incurred, including weekly time sheets as described in SCHEDULE H - WEEKLY
TIME CARD, any data required to calculate fees or variable rate changes, plus
receipts for reimbursable expenses in amount equal to or greater than $25.00
per item and a breakdown by category.
12.2. SEMPRA ENERGY may withhold payment of the whole or part of
any amount due or claimed to be due by Xxxxxxx.xxx to such extent as may be
necessary to protect SEMPRA ENERGY from loss on account of any of the
following:
12.2.1. Defective Services NOT remedied.
12.2.2. Third party claims indemnified hereunder as filed
or with reasonable evidence indicating probable filing of such claims.
12.2.3. Failure of Xxxxxxx.xxx to make payment promptly to
its employees, suppliers or subcontractors.
12.2.4. Indemnified damage caused by Xxxxxxx.xxx to others
and/or SEMPRA ENERGY; or
12.2.5. A good faith dispute as to the achievement of a
milestone or the calculation of the amount invoiced.
12.3. Xxxxxxx.xxx shall submit invoices in duplicate. SEMPRA
ENERGY's Representative shall approve all invoices before payment. Invoices
and payments shall be addressed as follows:
Originals to: Sempra Energy
Attention: Accounts Payable
PO Box 129007
San Diego, CA 92112-9007
Copy to: SEMPRA ENERGY
Attention: Xxxxx Xxxxx
000 Xxx Xxxxxx, XX-00
Xxx Xxxxx, XX 00000
12.4. SEMPRA ENERGY shall make payment within [...***...] days
after receipt and approval of invoice.
13. AUDIT
13.1. SEMPRA ENERGY reserves the right to designate its own
employee representative(s) or its contracted representative with a certified
public accounting firm, who shall have the right to audit and to examine any
cost, payment, settlement or supporting documentation resulting from any
Services performed on this Agreement. Any such audit(s) shall be done by
SEMPRA ENERGY at reasonable times and in conformance with generally accepted
auditing standards and General Accepted Accounting Principles (GAAP).
Xxxxxxx.xxx agrees to fully cooperate with any such audit(s).
13.2. Xxxxxxx.xxx shall include a similar clause in its
agreements with its subcontractors reserving the right to designate
Xxxxxxx.xxx's own employee representative(s), its contracted representative
from a certified public accounting firm, and representative(s) from SEMPRA
ENERGY, who shall have the right to audit and to examine any cost, payment,
settlement or other supporting documentation resulting from any item set
forth in its agreements.
13.3. Xxxxxxx.xxx shall be notified in writing of any exception
taken as a result of an audit of Xxxxxxx.xxx or a subcontractor. Xxxxxxx.xxx
shall refund the amount of any exception to SEMPRA ENERGY within ten (10)
days or have the right to have the exception(s) audited by an independent
accounting firm whose determination shall be binding upon both parties.
Xxxxxxx.xxx agrees to pay interest, accruing monthly, at a rate of [...***...]
% per annum on any payment which it is found responsible. Interest will be
computed from the date of written notification of exception(s) to the date
Xxxxxxx.xxx reimburses SEMPRA ENERGY for any exception(s). In the event an
audit verifies overcharges of [...***...]%) or more, then Xxxxxxx.xxx
shall reimburse SEMPRA ENERGY for the cost of the audit.
13.4. This right to audit shall extend for a period of five (5)
years following the date of final payment under this Agreement. Xxxxxxx.xxx
and each subcontractor shall retain all necessary records/documentation for
the entire length of this audit period.
* Confidential Treatment Requested
14. TAXES
14.1. Except as stated in Section 14, Xxxxxxx.xxx shall
separately invoice and assumes exclusive liability for and shall pay before
delinquency, all federal, state or local sales, use, excise and other taxes,
charges or contributions imposed on, or with respect to, or measured by the
equipment, materials, supplies or labor furnished hereunder or the wages,
salaries or other remunerations paid to individuals employed in connection
with the performance of the Services. Provided that the conditions of
indemnification as set forth in Article 18 are satisfied, Xxxxxxx.xxx shall
hold harmless, indemnify and defend SEMPRA ENERGY, together with any and all
its officers, directors, agents and employees from any liability, penalty,
interest and expense by reason of Xxxxxxx.xxx's failure to pay such taxes,
charges or contributions. Xxxxxxx.xxx and SEMPRA ENERGY shall cooperate with
each other to minimize the tax liability of both parties to the extent
legally permissible, including separately stating taxable charges on
Xxxxxxx.xxx's invoices and supplying resale and exemption certificates, if
applicable, and other information as reasonably requested. Xxxxxxx.xxx
agrees to deliver any software solely by (a) electronic transmission or (b) a
"load and leave" procedure whereby Xxxxxxx.xxx loads the software onto SEMPRA
ENERGY's systems using LICENSOR's own media, over which media Xxxxxxx.xxx at
all times retains possession and control. In the case of delivery under
option (b) above, Xxxxxxx.xxx shall remove such media from SEMPRA ENERGY's
premises promptly following completion of such loading procedure.
14.2. Without limiting the generality of the foregoing,
Xxxxxxx.xxx agrees to treat all individuals performing services under the
Agreement as employees of the Xxxxxxx.xxx for purposes of Federal and State
employment taxes. No exceptions are permitted under this section without a
written Amendment to this Agreement prior to an individual performing any
Services under this Agreement.
14.3. Without limiting any of the provisions of Article 14,
Xxxxxxx.xxx agrees that, at any time during the performance of this
Agreement, SEMPRA ENERGY shall have the right to audit Xxxxxxx.xxx's
compliance with the requirement stated in Article 14.2 that Xxxxxxx.xxx treat
all individuals performing Services under this Agreement as employees of
Xxxxxxx.xxx for Federal and State employment tax purposes. Such audit shall
occur at reasonable times with Xxxxxxx.xxx's full cooperation.
15. INDEPENDENT CONTRACTOR
15.1. It is agreed that Xxxxxxx.xxx shall perform the Services
under this Agreement as an independent Contractor and no principal-agent or
employer-employee relationship or joint venture or partnership shall be
created with SEMPRA ENERGY.
15.2. Xxxxxxx.xxx represents to SEMPRA ENERGY that it has taken
commercially reasonably efforts to ensure that it and its subcontractors are
properly licensed, insured, fully experienced and properly qualified to
perform the class and type of the Services as specified in this Agreement, in
addition to being properly equipped, organized, staffed and financed to
handle such Services.
15.3. Xxxxxxx.xxx shall perform the Services in an orderly and
workmanlike manner, enforce strict discipline and order among its personnel,
and shall NOT employ on the Services any personnel it knows or reasonably
should know are unskilled in the work assigned.
15.4. Xxxxxxx.xxx shall use prudent business practices in its
relationships with suppliers and subcontractors.
15.5. Xxxxxxx.xxx shall NOT engage in any advertising, publicity
or other promotional activities which in any way directly or indirectly
refers to this Agreement.
16. WARRANTY
Xxxxxxx.xxx warrants that all services performed hereunder shall
satisfy the standards of care, skill and diligence normally provided by a
performance of such services. Any services supplied hereunder failing to
meet such standards shall be repeated or corrected, at no cost to SEMPRA
ENERGY and shall conform to the requirements of this Agreement.
17. INSURANCE
Insurance requirements set forth below do not in any way limit the
amount or scope of liability of Xxxxxxx.xxx under this agreement. The
amounts listed indicate only the minimum amounts of insurance coverage SEMPRA
ENERGY is willing to accept to help insure full performance of all terms and
conditions of this agreement. All insurance required of Xxxxxxx.xxx under
this agreement shall meet the following minimum requirements.
17.1. CERTIFICATES, NOTICE OF CANCELLATION. On or before the
effective date of this agreement, and thereafter during its term, Xxxxxxx.xxx
shall provide SEMPRA ENERGY with current certificates of insurance, executed
by a duly authorized representative of each insurer, as evidence of all
insurance policies required under this Article 17. No insurance policy may
be canceled, materially revised, or non-renewed without at least thirty (30)
days prior written notice being given to SEMPRA ENERGY. Insurance must be
maintained without lapse in coverage during the term of this agreement.
SEMPRA ENERGY shall also be given certified copies of Xxxxxxx.xxx's policies
of insurance, upon request.
17.2. ADDITIONAL INSURED. SEMPRA ENERGY shall be named as an
additional insured in each general liability policy. Such general liability
insurance shall provide a severability of interest or cross-liability clause.
17.3. PRIMARY COVERAGE. The required policies, and any of
Xxxxxxx.xxx's policies providing coverage excess of the required policies,
shall provide that the coverage is primary for all purposes and Xxxxxxx.xxx
will not seek any contribution from any insurance or self-insurance
maintained by SEMPRA ENERGY.
17.4. COMPANY RATINGS. All required policies of insurance must
be written by companies having an A.M. Best rating of "A-" or better, or
equivalent.
17.5. DEDUCTIBLE; RETENTIONS. Xxxxxxx.xxx shall be solely
responsible for any deductible or self-insured retention on insurance
required hereunder.
17.6. REQUIRED INSURANCE. At all times during this agreement,
Xxxxxxx.xxx shall provide and maintain, at its own expense, the following
types of insurance:
17.6.1. GENERAL LIABILITY INSURANCE. Xxxxxxx.xxx shall
maintain an occurrence form commercial general liability policy, or policies,
including coverage for sudden and accidental pollution liability on land and
on water, insuring against liability arising from bodily injury, property
damage, personal and advertising injury, independent Cayenta.coms liability,
products and completed operations and contractual liability. Such coverage
shall be in an amount of not less than $1,000,000 combined single limit per
occurrence.
17.6.2. AUTOMOBILE LIABILITY INSURANCE. In the event that
automobiles are used in connection with Xxxxxxx.xxx's performance of this
agreement, Xxxxxxx.xxx shall maintain an automobile liability policy or
policies insuring against liability for damages because of bodily injury,
death, or damage to property, (including loss of use thereof), and occurring
in any way related to the use, loading or unloading of any of Xxxxxxx.xxx's
automobiles (including owned, hired and non-owned vehicles). Coverage shall
be in an amount of not less than $1,000,000 each accident.
17.6.3. WORKERS' COMPENSATION INSURANCE. In accordance with
the laws of the State or States in which the work will be performed,
Xxxxxxx.xxx shall maintain in force workers' compensation insurance for all
of its employees. If applicable, Xxxxxxx.xxx shall obtain U.S.
Longshoremen's and Harbor Workers compensation insurance, separately, or as
an endorsement to workers' compensation insurance. Xxxxxxx.xxx shall also
maintain employer's liability coverage in an amount of not less than
$1,000,000 per accident and per employee for disease. In lieu of such
insurance, Xxxxxxx.xxx may maintain a self-insurance program meeting the
requirements of the State or States in which the work will be performed along
with the required employer's liability insurance.
17.6.4. PROFESSIONAL LIABILITY INSURANCE. Xxxxxxx.xxx shall
maintain professional liability insurance covering the professional
activities contemplated under this agreement in an amount of not less than
$1,000,000 each claim.
17.7. WAIVER OF SUBROGATION. Each policy of property, general
liability and automobile (including automobile physical damage) insurance
maintained by Xxxxxxx.xxx shall contain a waiver of subrogation in favor of
SEMPRA ENERGY.
18. INDEMNITY
18.1. As between SEMPRA ENERGY and Xxxxxxx.xxx, Xxxxxxx.xxx shall
be solely liable for and Xxxxxxx.xxx shall indemnify, defend and hold SEMPRA
ENERGY, and its present and future direct and indirect parent company(ies),
subsidiaries, affiliates, divisions and their respective directors, officers,
shareholders, employees, agents, representatives, successors and assigns
harmless from and against any and all claims, actions, suits,
proceedings, losses, liabilities, penalties, damages, costs or expenses
(including attorneys' fees and disbursements) of any kind whatsoever
resulting from Xxxxxxx.xxx's, its employees, or subcontractor's negligence or
willful misconduct causing, (1) injuries to or death of any and all
individuals, including, without limitation, members of the general public, or
any employee, agent, independent Xxxxxxx.xxx or Xxxxxxx.xxx or affiliate of
either SEMPRA ENERGY or Xxxxxxx.xxx, arising out of or connected in any
manner with the performance of Services, (2) damage to, loss, and/or
destruction of property, including, without limitation, to, property of
SEMPRA ENERGY or Xxxxxxx.xxx arising out of or connected in any manner with
the performance of Services, (3) third party claims of any kind, whether
based upon negligence, strict liability or otherwise, arising out of or in
connected in any manner to Xxxxxxx.xxx's or any of its subcontractor's acts
or omissions in breach of this Agreement, or (4) Xxxxxxx.xxx's failure to
comply with Article 20 hereunder. The indemnification obligation shall not
apply to the extent that injuries, death, loss, damage or destruction is
caused by the willful misconduct of SEMPRA ENERGY, its agents or employees,
or SEMPRA ENERGY's sole negligence.
18.2. Xxxxxxx.xxx shall indemnify, defend and hold SEMPRA ENERGY,
and its present and future direct and indirect parent company(ies),
subsidiaries and affiliates and their directors, officers, shareholders,
employees, agents and representatives harmless from and against any and all
claims, actions, suits, proceedings, losses, liabilities, penalties, damages,
costs or expenses (inducing attorneys' fees and disbursements) of any kind
whatsoever arising from (1) actual or alleged infringement or
misappropriation by Xxxxxxx.xxx or any subcontractor of any patent,
copyright, trade secret, trademark, service mark, trade name, or other
intellectual property right in connection with the Services, including
without limitation, any deliverable, (2) Xxxxxxx.xxx's violation of any third
party license to use intellectual property in connection with the Services,
including, without limitation, any deliverable.
18.3. If any claim is brought against SEMPRA ENERGY, then
Xxxxxxx.xxx shall be entitled to participate in, and, unless in the opinion
of counsel for SEMPRA ENERGY a conflict of interest between SEMPRA ENERGY and
Xxxxxxx.xxx may exist with respect to such claim, assume the defense of such
claim, with counsel reasonably acceptable to SEMPRA ENERGY. If Xxxxxxx.xxx
does not assume the defense of SEMPRA ENERGY, or if a conflict precludes
Xxxxxxx.xxx from assuming the defense, then Xxxxxxx.xxx shall reimburse
SEMPRA ENERGY on a monthly basis for SEMPRA ENERGY's defense through separate
counsel of SEMPRA ENERGY's choice. Even if Xxxxxxx.xxx assumes the defense
of SEMPRA ENERGY with acceptable counsel, SEMPRA ENERGY, at its sole option,
may participate in the defense, at its own expense, with counsel of its own
choice without relieving Xxxxxxx.xxx of any of its obligations hereunder.
18.4. Xxxxxxx.xxx's obligation to indemnify under this Article
shall not be limited in any way by any limitation on the amount or type of
damages, compensation or benefits payable by or for Xxxxxxx.xxx under any
Worker's Compensation Acts, Disability Benefit Acts or other Employee Benefit
Acts.
19. GOVERNING LAW
The formation, interpretation and performance of this Agreement
shall be governed by the internal laws of the State of California.
20. COMPLIANCE WITH LAWS
Xxxxxxx.xxx hereby represents that it and its subcontractors are and
at all times shall be familiar with, and at all times during performance of
the Services shall comply with and observe, all applicable federal, state and
local laws, ordinances, rules, regulations, executive orders, all applicable
safety orders and all orders or decrees of administrative agencies, courts or
other legally constituted authorities having jurisdiction or authority over
Xxxxxxx.xxx, SEMPRA ENERGY or the Services.
21. TERMINATION
21.1. Xxxxxxx.xxx agrees that if (1) Xxxxxxx.xxx abandons the
Services, or (2) Xxxxxxx.xxx shall become bankrupt or insolvent, or shall
assign this Agreement, or sublet any part thereof, without the written
authorization of SEMPRA ENERGY, or (3) Xxxxxxx.xxx, in the reasonable opinion
of SEMPRA ENERGY Representative violates any of the provisions of this
Agreement, or executes this Agreement in bad faith, or (4) Xxxxxxx.xxx, in
the sole opinion of the SEMPRA ENERGY Representative is not performing the
Services in accordance with the terms of this Agreement, SEMPRA ENERGY may
notify Xxxxxxx.xxx pursuant to Article 28, to discontinue all or any part of
the Services and Xxxxxxx.xxx shall thereupon discontinue the Services or such
parts thereof. The remedies herein shall be inclusive and additional to any
other remedies in law or equity, and no action by SEMPRA ENERGY shall
constitute a waiver of any such right or remedy.
21.2. It is also expressly agreed that SEMPRA ENERGY shall have the
right to terminate this Agreement, or any part thereof, at any time for its
sole convenience upon [...***...] days' written notice, pursuant to Article
28, to Xxxxxxx.xxx and payment of termination charges as set forth in
SCHEDULE D, if applicable. Xxxxxxx.xxx shall fully justify and document to
SEMPRA ENERGY any termination charges so claimed. In no event shall
Xxxxxxx.xxx be entitled to payment for any Services which has NOT been
authorized by SEMPRA ENERGY, or is NOT yet performed, or any anticipated
profits for any Services that have not been authorized or performed.
21.3. Payment of termination charges shall occur within [...***...]
days of receipt of Xxxxxxx.xxx's written submittal of charges and
justification to SEMPRA ENERGY's satisfaction. SEMPRA ENERGY shall have the
right to review and verify by independent audit, any termination charges
claimed by Xxxxxxx.xxx prior to payment.
22. LIENS
Without limiting the generality of Article 18, Xxxxxxx.xxx shall
indemnify, defend, and hold SEMPRA ENERGY, and its present and future direct
and indirect parent company(ies), subsidiaries, affiliates and their
directors, officers, shareholders, employees, agents and representatives
harmless from and against any mechanics lien or stop notice claim against
SEMPRA ENERGY by Xxxxxxx.xxx, subcontractors, employees or agents pertaining
to the Services specified in this Agreement.
* Confidential Treatment Requested
23. ASSIGNMENT
Xxxxxxx.xxx shall give personal attention to the execution of the
Services herein provided for, and shall NOT assign this Agreement, nor employ
any subcontractor for the execution of the same or any part thereof, without
prior written authorization of SEMPRA ENERGY. No such written authorization,
however, shall be construed as discharging or releasing Xxxxxxx.xxx in any
way from the performance of the Services or the fulfillment of any obligation
specified in this Agreement. Xxxxxxx.xxx shall remain jointly and severally
liable with any assignee of its rights or obligations.
24. EQUAL EMPLOYMENT OPPORTUNITY
If this Agreement is subject to Executive Order 11246 of September
24, 1965, Section 503 of the Rehabilitation Act of 1973, or the Vietnam Era
Veterans' Readjustment Act of 1974, Xxxxxxx.xxx agrees to comply with the
equal employment opportunity clauses set out at 41 CFR 60-1.4 and the
requirements for affirmative action for veterans and disabled persons set out
at 41 CFR 60-250.4 and 60-741.4, respectively, which clauses are incorporated
herein by reference with the same force and effect as if stated in full text.
25. CALENDAR YEAR 2000 COMPLIANCE
Xxxxxxx.xxx represents, warrants and reports that the systems
utilized by Xxxxxxx.xxx in the performance of Services for SEMPRA ENERGY
shall exhibit calendar Year 2000 Compliance. Year 2000 Compliance shall mean
the capability to (1) manage and manipulate data involving all dates
subsequent to, prior to and including the calendar year 2000 including
single-century and multi-century formulas, and will not cause an abnormally
ending (ABEND) scenario within the application, or result in incorrect values
generated involving such dates; (2) ensure that all date-related functions,
including generated code, will include the indication of century; and (3)
convert between date representatives (such as YYMMDD, Xxxxxx and Gregorian).
Failure of Xxxxxxx.xxx to be Year 2000 compliant shall NOT in any way excuse
Xxxxxxx.xxx from the duty to perform its obligations hereunder.
26. NONWAIVER
The failure of SEMPRA ENERGY to insist upon or enforce, in any
instance, strict performance by Xxxxxxx.xxx of any of the terms of this
Agreement or to exercise any rights herein conferred shall NOT be construed
as a waiver or relinquishment to any extent of its right to assert, or rely
upon any such terms or rights on any future occasion. No waiver shall be
valid unless stated in writing as set forth in Article 28.
27. DISPUTES
27.1. Any dispute that cannot be resolved between Xxxxxxx.xxx
Representative and SEMPRA ENERGY Representative shall be referred to Sempra
Energy Director-Procurement and an officer of Xxxxxxx.xxx for resolution. If
SEMPRA ENERGY and Xxxxxxx.xxx cannot reach an agreement within a reasonable
period of time, SEMPRA ENERGY and Xxxxxxx.xxx shall have the right to pursue
litigation as provided for herein.
27.2. In the event of any litigation to enforce or interpret any
terms of this Agreement, the parties agree that such action will be brought
in the Superior Court of the County of San Diego, California (or, if the
federal courts have exclusive jurisdiction over the subject matter of the
dispute, in the U.S. District Court for the Southern District of
California), and the parties hereby submit to the exclusive jurisdiction of
said court.
27.3. In any action in litigation to enforce or interpret any of
the terms of this Agreement, the prevailing party shall be entitled to
recover from the unsuccessful party all costs, expenses, (including expert
testimony) and reasonable attorneys fees incurred therein by the prevailing
party.
27.4. In no event shall the litigation of any controversy or the
settlement thereof delay the performance of this Agreement.
28. NOTICES OR DEMANDS
Any notice, request, demand or other communication required or
permitted under this Agreement, shall be deemed to be properly given by the
sender and received by the addressee if made in writing and (1) if personally
delivered; (2) three days after deposit in the mails if mailed by certified
or registered air mail, post prepaid, with a return receipt requested; or (3)
if sent by facsimile with confirmation sent as provided in (2) above. All
correspondence shall reference the contract number shown on the cover page of
this document. Mailed notices and facsimile notices shall be addressed as
follows to:
SEMPRA ENERGY: SEMPRA ENERGY
PO BOX 129007
San Diego, California 92112-9007
Facsimile No: (000) 000-0000
Attention: Director-Procurement
Contract No. 56000001842
Xxxxxxx.xxx: XXXXXXX.XXX
000 Xxxxxxxx
Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
29. CONFIDENTIALLY
29.1. DEFINITIONS. For purposes of this Agreement, the term
"Confidential Information" means proprietary information concerning the
business, operations and assets of SEMPRA ENERGY, its present and future
direct or indirect parent company(ies), affiliates and/or subsidiaries,
including, without limitation, information or materials prepared in
connection with Peregrine Project or any related subsequent agreement,
designs, drawings, specifications, techniques, models, data, documentation,
source code, object code, diagrams, flow charts, research, development,
processes, procedures, know-how, manufacturing, development or
marketing techniques and materials, development or marketing timetables,
strategies and development plans, customer, supplier or personnel names and
other information related to customers, suppliers or personnel, pricing
policies and financial information, and other information of a similar
nature, whether or not reduced to writing or other tangible form, and any
other trade secrets. Confidential Information shall not include (1)
information known to Xxxxxxx.xxx or a Representative prior to obtaining the
same from SEMPRA ENERGY; (2) information in the public domain at the time of
disclosure by Xxxxxxx.xxx; (3) information obtained by Xxxxxxx.xxx or a
Representative from a third party who did not receive same, directly or
indirectly, from SEMPRA ENERGY; or (4) information approved for release by
written authorization of an authorized officer of SEMPRA ENERGY. For purposes
of this Agreement, Representatives means collectively each of Xxxxxxx.xxx's
directors, officers, employees, agents, advisors or affiliates.
29.2. LIMITED USE; NONDISCLOSURE. Xxxxxxx.xxx hereby agrees that it
shall use the Confidential Information solely for the purpose of performance
under this or other SEMPRA ENERGY contracts and not in any way detrimental to
SEMPRA ENERGY, its present and future direct or indirect parent company(ies),
affiliates and/or subsidiaries. Neither Xxxxxxx.xxx nor its Representatives
shall use the Confidential Information for their own benefit. Xxxxxxx.xxx
agrees to use the higher of the same degree of care it uses with respect to
its own proprietary or confidential information or a reasonable standard of
care to prevent unauthorized use or disclosure of the Confidential
Information. Expect as otherwise provided herein, Xxxxxxx.xxx and its
Representatives shall keep confidential and not disclose the Confidential
Information. Xxxxxxx.xxx shall cause each of its Representatives to become
familiar with, and abide by, the terms of this Agreement.
29.3. COURT OR ADMINISTRATIVE ORDER. Notwithstanding the provisions
of Article 29.2 above, Xxxxxxx.xxx and its Representatives may disclose any
of the Confidential Information in the event, but only to the extent, that,
based upon advice of counsel, it is required to do so by the disclosure
requirements of any law, rule, or regulation or any order, decree, subpoena
or ruling or other similar process of any court, governmental agency or
governmental or regulatory authority. Prior to making or permitting any of
its Representatives to make such disclosure, Xxxxxxx.xxx shall provide SEMPRA
ENERGY with prompt written notice of any such requirement so that SEMPRA
ENERGY (with Xxxxxxx.xxx's assistance) may seek a protective order or other
appropriate remedy.
29.4. PUBLICITY. Xxxxxxx.xxx] and its Representatives shall not,
without the prior written consent of SEMPRA ENERGY, disclose to any person
(1) the fact that the Confidential Information has been made available to
Xxxxxxx.xxx or its Representatives or (2) any information regarding the
ongoing discussions and negotiations between the parties, including the fact
that such discussions and negotiations are occurring; provided, however, that
Xxxxxxx.xxx and its Representatives may disclose the information described in
clauses (1) and (2) above if such disclosure is required under any of the
circumstances described in Article 29.3 above, in which the case the
procedures specified therein with respect to such disclosure shall apply.
29.5. DOCUMENT RETENTION. At any time upon the request of SEMPRA
ENERGY, Xxxxxxx.xxx shall promptly deliver to SEMPRA ENERGY or destroy (with
such
destruction to be certified to SEMPRA ENERGY) all documents (and all copies
thereof, however stored) furnished to or prepared by Xxxxxxx.xxx and its
Representatives that contain Confidential Information and all other documents
in Xxxxxxx.xxx's possession that contain or that are based on or derived from
Confidential Information.
29.6. SURVIVAL. Notwithstanding the return or destruction of all or
any part of the Confidential Information, the confidentiality provisions set
forth in this agreement shall nevertheless remain in full force and effect
with respect to specific Confidential Information until the date that is five
(5) years after the date of disclosure of such Confidential Information.
29.7. REMEDIES. The parties acknowledge that the Confidential
Information is valuable and unique, and that damages would be an inadequate
remedy for breach of this Agreement and the obligations of Xxxxxxx.xxx and
the Representatives are specifically enforceable. Accordingly, the parties
agree that in the event of a breach or threatened breach of this Agreement by
Xxxxxxx.xxx, SEMPRA ENERGY, its present and future direct or indirect parent
company(ies), affiliates and/or subsidiaries, who shall be third party
beneficiaries of this Agreement, shall be entitled to seek an injunction
preventing such breach, without the necessity of proving damages or posting
any bond. Any such relief shall be in addition to, and not in lieu of, money
damages or any other legal or equitable remedy available to SEMPRA ENERGY,
its present and future direct or indirect parent company(ies), affiliates
and/or subsidiaries.
30. TIME OF ESSENCE
Time is expressly agreed to be of the essence of this Agreement and
each, every and all of the terms, conditions and provisions herein.
31. VALIDITY
The invalidity, in whole or in part, of any provisions hereof shall
NOT affect the validity of any other provisions hereof.
32. SURVIVAL
The obligations imposed on Xxxxxxx.xxx and Xxxxxxx.xxx's employees
by and pursuant to Articles 8, 13, 14, 16, 17, 18, 22 and 27 survive
termination of this Agreement.
33. NO ORAL MODIFICATIONS
No modification of any provisions of this Agreement shall be valid
unless in writing and signed by authorized representatives of the party
against whom such modification is sought to be enforced. The authorized
representative of SEMPRA ENERGY is not the SEMPRA ENERGY Representative.
SEMPRA ENERGY Representative is not the authorized representative for
Amendments. Amendments must be signed by persons internally authorized to do
so by SEMPRA ENERGY pursuant to its corporate policies.
34. CAPTIONS
The captions in this Agreement are for convenience and reference
only and the words contained therein shall in no way be held to explain,
modify, amplify or aid in the interpretation, construction or meaning of the
provisions of this Agreement.
35. COUNTERPARTS
This Agreement may be executed in counterparts which, taken
together, shall constitute a single instrument.
36. AUTHORITY
Each individual executing this Agreement on behalf of SEMPRA ENERGY
and Xxxxxxx.xxx represents and warrants that he or she is duly authorized to
execute and deliver this Agreement on behalf of said party and that this
Agreement is binding upon said party in accordance with its terms.
37. JOINT AND SEVERAL LIABILITY
INTENTIONALLY OMITTED
38. COMPLETE AGREEMENT
This Agreement constitutes the complete and entire Agreement between
the parties and supersedes any previous communications, representations or
agreements, whether oral or written, with respect to the subject matter
hereof. There are no additions to, or deletions from, or changes in, any of
the provisions hereof, and no understandings, representations or agreements
concerning any of the same, which are NOT expressed herein, unless stated
below. THE PARTIES HEREBY AGREE THAT NO TRADE USAGE, PRIOR COURSE OF DEALING
OR COURSE OF PERFORMANCE UNDER THIS AGREEMENT SHALL BE A PART OF THIS
AGREEMENT OR SHALL BE USED IN THE INTERPRETATION OR CONSTRUCTION OF THIS
AGREEMENT. The following Schedules are attached hereto and incorporated
herein by this reference:
SCHEDULE A - TECHNICAL SERVICES SCOPE OF WORK
SCHEDULE B - SUBCONTRACTORS LIST
SCHEDULE C - RESERVED
SCHEDULE D - COMPENSATION
SCHEDULE E - REQUIRED INSURANCE
SCHEDULE F - INTENTIONALLY OMITTED
SCHEDULE G - WORK AUTHORIZATION
SCHEDULE H - WEEKLY TIME CARD
SCHEDULE I - TRAVEL GUIDELINES
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXXX.XXX SEMPRA ENERGY
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxx
------------------------------- -----------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxx Xxxxx
---------------------------- ---------------------------------
Vice President & Chief
Title: Chief Technical Officer Title: Information Technology Officer
--------------------------- -------------------------------
Date: 12/16/1999 Date: 12/16/99
---------------------------- --------------------------------
SEMPRA ENERGY
SCHEDULE A
TECHNICAL SERVICES SCOPE OF WORK
The Services as generally described in Article 1 - SCOPE, are more definitively
described as stated below:
Xxxxxxx.xxx shall provide SEMPRA ENERGY with consulting and professional
services support on a Time and Expense basis that includes but is not limited to
the following.
EFX APPLICATIONS PROJECTS
OVERVIEW
XXXXXXX.XXX will deliver time and materials consulting and contract services
in support of the enablement of nine strategic business applications to
operate within the EFX FRAMEWORK and also to deliver added business function.
The nine applications to be enabled and enhanced are CIS, CISCO, Gas Select,
GIR, Gas Select, OMS-A, OMS-B, MCS, Phoenix and Web Portal Enablement-SAP.
Xxxxxxx.xxx will support eight related projects, which will deliver the
business enhancements and EFX integration.
The EFX FRAMEWORK is SEMPRA ENERGY'S strategic direction for delivering and
managing superior (web technology based) business applications in a
competitive market. The EFX Framework will enable delivery of new and
enhanced applications more rapidly, with higher quality and at lower cost
than can be delivered by conventional development methods.
The projects will deliver all created services and facilities in accordance
with Sempra Energy's EFX framework. All services will be designed such that
the resulting software components can be factored into Sempra Energy's
Business Services and Common Horizontal Facilities libraries. All web
components will make use of EFX web services to develop any and all web
client solutions.
EFX CIS ENABLEMENT
The CIS application provides customer care and billing functions for all
SoCal Gas core customers and partial customer management services for the
Phoenix non-core system.
This project will support the CIS application team in creating application
components that assist the CIS team to migrate the application away from OS/2
and Smalltalk. In addition, this project will deliver new component services
that help the CIS team extend their WEB-based client and add additional
e-commerce facilities as well as develop new CIS-specific integration
services and components
mandated by GIR.
Specific services to be delivered include a java and CORBA-based CICS access
service packaged to meet specific CIS needs. Smalltalk process management
services will also be provided as well as Smalltalk CORBA interface to EFX to
enable the eventual migration of the CIS system to a physical 3-tier
implementation. The project will assist the CIS development team to integrate
GIR project requirements as new EFX components.
EFX CISCO ENABLEMENT
The CISCO application provides customer care and billing functions for all SDG&E
customers.
The purpose of this project is to provide bolt-on components and services that
make the CISCO application easier to interface with other applications, provide
enhanced services in support of Electric Industry Restructuring (EIR) and Gas
Industry Restructuring (GIR), and enable web-based customer access to billing
information.
EFX GIR INTEGRATION
Gas Industry Restructuring (GIR) is a PUC-initiated activity underway in
California to provide increased competition in the California natural gas
marketplace. One of the key impacts of this initiative is on Utility
Distribution Company (UDC) information technology systems that will require
modification to meet new regulator specified functional requirements. A key
aspect of these changes will be a requirement to provide expanded interfaces and
e-commerce facilities that link UDC's with their trading partners (e.g.,
retailers, shippers).
The purpose of this project is to provide a common platform that can be shared
by both SoCal Gas and SDG&E to provide e-commerce, trading partner integration,
and common GIR-mandated bolt-on services that can be utilized by both company's
application suite to meet the needs of deregulation. This project will develop a
common set of GIR-specific integration services and bolt-on functional
components that can be shared by both SoCal Gas and SDG&E.
EFX GAS SELECT DEVELOPMENT
The Gas Select application provides an on-line order entry system for SoCal Gas
non-core commercial customers.
The application, as part of the overall GIR process and in response to
competitive pressures needs to be redeveloped as a web-based portal solution.
The development of the application as a web-based solution will enable the Gas
Select to not only provide enhanced functionality, but will also provide lowered
support and maintenance costs on the part of the Gas Company as the system's
client will eliminate most client support issues. The purpose of this project
will be to provide the core web services and management facilities to host the
Gas Select application as an Internet portal. A key expected requirement is the
need to package commerce grade security with application to support secure
end-user access over
the web.
EFX OMS INTEGRATION PLATFORM DEVELOPMENT - A
Outage Management Systems (OMS) are mission-critical applications that are
required to detect system outages and manage the recovery of service to Sempra
Energy customers. SDG&E has initiated a new project to replace its current
system with a new application platform. To operate, this new system will be
required to integrate key utility systems including GIS, SCADA, service order
dispatch, work force management, and customer information systems with the core
outage management system functionality. As a mission-critical system, it is also
necessary that the OMS application be highly-available to its users and be able
to sustain operations in a 7X24 environment and under degraded modes of
operation including application server failures.
The purpose of this project is to establish the necessary integration
infrastructure to host the OMS system including application integration, system
monitoring, and failure recovery services. This project will result in the
development and deployment of a system integration framework and management
environment for the OMS. Key services to be provided are application specific
proxies that will enable communication between all OMS II system components.
Specific proxy objects needing development for the OMS II include
representations of the CISCO, SORT, GFMS, and SCADA applications. A key focus
will be to provide facilities and services for enabling the OMS II system to
remain in operation in response to failures in feeder application systems as
well as support the dynamic redeployment of the OMS II application components in
response to system failures.
EFX OMS INTEGRATION PLATFORM DEVELOPMENT - B
Outage Management Systems (OMS) are mission-critical applications that are
required to detect system outages and manage the recovery of service to Sempra
Energy customers. SDG&E has initiated a new project to replace its current
system with a new application platform. To operate, this new system will be
required to integrate key utility systems including GIS, SCADA, service order
dispatch, work force management, and customer information systems with the core
outage management system functionality. As a mission-critical system, it is also
necessary that the OMS application be highly-available to its users and be able
to sustain operations in a 7X24 environment and under degraded modes of
operation including application server failures.
The purpose of this project is to establish the necessary integration
infrastructure to host the OMS system including application integration, system
monitoring, and failure recovery services. This project will result in the
development and deployment of a system integration framework and management
environment for the OMS. Key services to be provided are application specific
proxies that will enable communication between all OMS II system components.
Specific proxy objects needing development for the OMS II include
representations of the CISCO, SORT, GFMS, and SCADA applications. A key focus
will be to provide facilities and services for enabling the OMS II system to
remain in operation in response to failures in feeder application systems as
well as support the dynamic redeployment of the OMS II application components in
response to system failures.
EFX MCS ENABLEMENT
The Measurement and Collection Service (MCS) provides the focal point for
collecting consumption information by Gas Company customers. The system is
expected to undergo revisions as a result of industry restructuring and the need
to provide additional support for the automated meter reading (AMR) devices.
The purpose of this project is to assist the MCS team to both meet the needs of
industry restructuring and provide an enhanced application platform for
extending and managing the MCS system. Services to be delivered as part of this
project include the development of new Meter Data Management Agency (MDMA)
interfaces as well as being able to deliver this information to customers via
EDI-based transactions. In addition, a new component architecture will be
designed to support the integration and management of vendor supplied AMR
systems and controllers.
EFX PHOENIX SERVICES DEVELOPMENT AND INTEGRATION SUPPORT
The Phoenix application has been developed by SoCal Gas to provide a highly
flexible and tailorable non-core gas billing and contract management platform.
The initial release of the application is currently being deployed and will then
be modified to support the needs of GIR both from regulatory and competitive
perspectives.
The purpose of this project is to create additional components and services to
enhance the competitiveness SoCal Gas' Gas product offering. This effort will
focus on the development of e-commerce, bill presentment, and beyond the
firewall business to business integration. This project will also provide
functional enhancements to core Phoenix application services including logging,
security, and load balancing services.
The initial release of the Phoenix project has been developed utilizing EFX.
EFX WEB PORTAL ENABLEMENT - SAP
Sempra Energy has recognized the benefits of using an already built ERP system
for providing back-end corporate processes and is implementing SAP applications
to that end. The integration between the front-end Web applications and the
back-end processes that they feed can provide improved efficiencies to Sempra
Energy. This will extend EFX services to be used to Web-enable the SAP
applications.
This project will develop required SAP services utilizing the Sempra Energy EFX
framework.
All Services shall be authorized by SEMPRA ENERGY via a Work Authorization
(Schedule G) and shall be provided by Xxxxxxx.xxx on a Time and Expense basis.
All work will be performed onsite at SEMPRA ENERGY facilities.
SEMPRA ENERGY will define all work to be performed by Xxxxxxx.xxx via a Work
Authorization - SCHEDULE X. XXXXXX ENERGY will not reimburse Xxxxxxx.xxx for
any work performed that has not been previously authorized by a Work
Authorization - SCHEDULE G.
The Cayenta.coms will work during SEMPRA ENERGY normal business hours and will
not be paid for holidays or weekends. If SEMPRA ENERGY requires Xxxxxxx.xxx to
work on a holiday that is observed by SEMPRA ENERGY, Xxxxxxx.xxx shall be
reimbursed if authorized by a Work Authorization - SCHEDULE G.
SEMPRA ENERGY shall be given ten (10) days notice and request for any vacation
or leave of absence planned by the Cayenta.coms. SEMPRA ENERGY must approve any
vacation or leave of absence taken by the Cayenta.coms.
Any changes to the Estimated expenditures, and Scope/Task as described in the
Work Authorization shall be documented and approved by the SEMPRA ENERGY
authorized representative as described herein. SEMPRA ENERGY shall not be liable
for payment for any change or work performed that has not been authorized and
approved in writing via a Work Authorization.
If at any time SEMPRA ENERGY is dissatisfied with the material performance or
experience level of an assigned Xxxxxxx.xxx employee or Xxxxxxx.xxx, SEMPRA
ENERGY shall immediately report such to Xxxxxxx.xxx in writing and may request
Xxxxxxx.xxx to replace such personnel. Xxxxxxx.xxx shall use its commercially
reasonable best efforts to accomplish such change, recognizing the adverse
impact that unsatisfactory personnel shall have on the performance of Services
and meeting of the task and scope as described in the Work Authorization.
SEMPRA ENERGY
SCHEDULE B
SUBCONTRACTORS LIST
INTENTIONALLY OMITTED
This section was intentionally omitted. There are no subcontractors identified
at this time. Any subcontractors, and their key employees, will be identified
in Work Authorizations.
SEMPRA ENERGY
SCHEDULE C
RESERVED
SEMPRA ENERGY
SCHEDULE D
COMPENSATION
Further definition of Article 11 - COMPENSATION, is as follows:
Xxxxxxx.xxx shall provide SEMPRA ENERGY with software consulting and
professional services support on a Time and Expense basis that shall not exceed
[...***...].
Table C-1 defines standard billing rates for all standard TNP labor categories.
The rates presented below reflect those charged by TNP to its best customers and
are identical to the negotiated rates currently in place between Sempra Energy
and TNP.
TABLE C-1. BILLING RATES.
Category Hourly Rate
Managing Partner $[...***...]
Partner $[...***...]
Senior Technical Consultant $[...***...]
Technical Consultant $[...***...]
Associate Technical $[...***...]
Consultant
Research/Documentation $[...***...]
Support
Administrative Support $[...***...]
Table C-2 documents total project cost and associated level of effort required
to meet the proposed statement of work over the contract's one year duration.
TABLE C-2. COSTS BY APPLICATION PROJECT ($000)
CIS ENABLEMENT [...***...]
CICSCO ENABLEMENT [...***...]
GIR INTEGRATION DEVELOPMENT [...***...]
GAS SELECT DEVELOPMENT [...***...]
OMS INTEGRATION PLATFORM DEVELOPMENT-A [...***...]
OMS INTEGRATION PLATFORM DEVELOPMENT-B [...***...]
MCS ENABLEMENT [...***...]
PHOENIX SERVICES DEVELOPMENT/INTEGRATION [...***...]
WEB PORTAL ENABLEMENT [...***...]
-----------
[...***...]
* Confidential Treatment Requested
SEMPRA ENERGY and Xxxxxxx.xxx will negotiate the rate for all additional
Cayenta.coms on the project based on Xxxxxxx.xxx experience and will be
documented and incorporated into any future Work Authorizations - SCHEDULE G.
Xxxxxxx.xxx guarantees that the rates listed herein will remain the same
throughout the term of this Agreement.
SEMPRA ENERGY does not guarantee, represent or warrant that it will commit to
any specific quantities or dollar total for these services and assumes no
commitment liability, financial or otherwise, except as authorized on an
individual basis from time to time.
SEMPRA ENERGY
SCHEDULE E
REQUIRED INSURANCE
SEMPRA ENERGY
SCHEDULE F
INTENTIONALLY OMITTED
SEMPRA ENERGY
SCHEDULE G
WORK AUTHORIZATION
WORK AUTHORIZATION #____
This signed document represents authorization for Xxxxxxx.xxx to commence
consulting services against Agreement No.______ dated November 13, 1998
between Xxxxxxx.xxx and SEMPRA ENERGY.
Cost Center____________ Acct: No.____________
SCOPE/TASK DESCRIPTION:
SEMPRA ENERGY REPRESENTATIVE
Name _____________ Phone No.____________
XXXXXXX.XXX STAFF MEMBER:
Name Classification Rate Phone No.
1.
2.
PERFORMANCE PERIOD
START DATE: END DATE:
TRAVEL AND EXPENSES:
All expenses are to be reimbursed in accordance with Schedule I - Travel
Guidelines.
ESTIMATED EXPENDITURES
The estimated expenditures for this Work Authorization is $_____________
Agreed and Accepted:
For: Sempra Energy For: Xxxxxxx.xxx LLC
Signature:______________ Signature:______________
Name:___________________ Name:___________________
Title:__________________ Title:__________________
Date:___________________ Date:___________________
SEMPRA ENERGY
SCHEDULE H
WEEKLY TIME CARD
for Time & Material Service Providers
(see Attachment H-2)
WEEKLY TIME CARD
for Time & Material Service Providers
PERIOD COMPANY NAME Sempra Energy
--------------------------------
FROM: COMPANY REPRESENTATIVE --------------------------------
01-Jan-2000 XXXXXXX.XXX --------------------------------
THROUGH: CONSULTANT NAME: --------------------------------
07 Jan 2000 LOCATION SERVICES PERFORMED: --------------------------------
CONTRACT NUMBER --------------------------------
1
WORK AUTHORIZATION NUMBER --------------------------------
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DESCRIPTION OF SERVICES PROVIDED 01 Jan 02 Jan 03 Jan 04 Jan 05 Jan 06 Jan 07 Jan TOTAL
2000 2000 2000 2000 2000 2000 2000
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SAT SUN MON TUE WED THU FRI
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0
----------------------------------------------------------------------------------------------------------------
0
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4 4
----------------------------------------------------------------------------------------------------------------
0
----------------------------------------------------------------------------------------------------------------
3 3
----------------------------------------------------------------------------------------------------------------
0
----------------------------------------------------------------------------------------------------------------
0
----------------------------------------------------------------------------------------------------------------
0
----------------------------------------------------------------------------------------------------------------
8 4 8 8 5 33
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0
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Totals 0 0 8 8 8 8 8 40
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I CERTIFY THE FOREGOING TO BE CORRECT ACCOUNT OF THE TIME WORKED
CONSULTANT DATE
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Sempra Energy REPRESENTATIVE: DATE
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*THIS TIMECARD WITH SEMPRA ENERGY REPRESENTATIVE SIGNATURE MUST
ACCOMPANY ALL INVOICES FOR SERVICES*
SEMPRA ENERGY
SCHEDULE I
TRAVEL GUIDELINES
All travel-related reservations (hotel, air, car rental, etc.) shall be made
through SEMPRA ENERGY' Travel Services office. All bills shall include an
itemized listing supported by copies of the original bills, invoices, expense
accounts and miscellaneous supporting data. If charged to SEMPRA ENERGY, all
travel either to San Diego or from San Diego to other locations shall be
approved in writing in advance by SEMPRA ENERGY' Representative. Time for
travel will not be reimbursed except for travel during normal business hours.
A. AUTO MILEAGE
Auto mileage will be reimbursed are $.31 per mile, or the current rate as
specified by the Internal Revenue Service.
B. AIR TRAVEL
Air fares will be reimbursed based on the most direct route at coach
class travel rates. Upgrading (coach to a higher class) of airline tickets
will only be reimbursed when approved by the SEMPRA ENERGY Representative,
and only when the business schedule requires immediate travel and only
higher class accommodations are available. Downgrading (exchange) of
airline ticket where Xxxxxxx.xxx receives financial or personal gain is
not permitted. If a trip is postponed, reservations should be canceled
immediately. Xxxxxxx.xxx shall provide copies of passenger receipts to
SEMPRA ENERGY to receive reimbursement.
Travel arrangements should be made as early as possible (preferably three
(3) weeks) to take advantage of advance reservation rates.
C. COMBINING BUSINESS TRAVEL WITH PERSONAL TRAVEL
Xxxxxxx.xxx may combine personal travel with SEMPRA ENERGY' business only
if the personal travel does not increase the cost to SEMPRA ENERGY.
Arrangement for personal travel should be handled by Xxxxxxx.xxx. SEMPRA
ENERGY will not manage personal travel.
D. AIR TRAVEL INSURANCE
SEMPRA ENERGY does not pay for air travel insurance.
E. ACCOMMODATIONS
SEMPRA ENERGY will reimburse hotel room fees at the preferred corporate
rate. SEMPRA ENERGY may reimburse hotel room fees at the standard rate
based on single room occupancy in cases where a corporate rate is not
available.
F. LAUNDRY
Laundry and dry cleaning charges will only be paid if Xxxxxxx.xxx is on
travel for SEMPRA ENERGY for a period in excess of six (6) consecutive
days.
G. ENTERTAINMENT
SEMPRA ENERGY will not pay for the rental of premium channel movies, use
of health club facilities or other forms of entertainment.
H. AUTO RENTAL
If required, SEMPRA ENERGY will pay for reasonable car rental charges.
Xxxxxxx.xxx is expected to request the rental of an economy car.
I. MEALS
Meals will be reimbursed on the actual cost up to a maximum of $50.00 per
day of travel. Receipts are required for all meals. In order to be
reimbursed, meal receipts (itemized if possible) in the form of
receipts, credit card receipts, or cash register tape must be submitted.
SEMPRA ENERGY will not pay for alcoholic beverages. In lieu of itemizing
meal expenses and submitting receipts, Xxxxxxx.xxx may claim the standard
$31.00 per diem for the duration of the travel.
J. TELEPHONE USAGE
Xxxxxxx.xxx shall submit documentation regarding all telephone calls
charged to SEMPRA ENERGY. Documentation must include the name of the
party being called and the purpose of the call. SEMPRA ENERGY shall
allow one business call upon arrival and one call prior to departure.
SEMPRA ENERGY will not pay for additional business calls unless directly
related to the Contract. Personal telephone call are not reimbursable
unless Xxxxxxx.xxx is on travel for SEMPRA ENERGY for more than three
consecutive days. In this case, the cost of a call shall not exceed
$5.00 and one call is permitted every other day.
K. GROUND TRANSPORTATION
Public transportation should be used whenever possible; however, if
necessary, rental car expenses, including gas actually purchased, will be
reimbursed for authorized travel only. Cab fare (on a shared basis
whenever possible) is reimbursable. Receipts shall be required to
document all ground transportation charges.
Xxxxxxx.xxx shall rent the lowest automobile classification appropriate
for the size or purpose of the group using the vehicle.
1-2 Travelers Compact
3 Travelers Medium/Intermediate
4-5 Travelers Full Size/Standard Equipment
6+ Travelers Van
Xxxxxxx.xxx must fuel rental automobiles prior to turn-in as rental
companies normally add a large service charge to fuel costs.
L. PARKING
SEMPRA ENERGY does not reimburse its employees for parking expenses at
any of its facilities; therefore, Xxxxxxx.xxx will not be reimbursed for
such.
M. TOLLS AND FEES
Transportation-related toll and fees incurred while on SEMPRA ENERGY
business are reimbursable at actual cost.
N. BAGGAGE HANDLING
Baggage handling service fees are reimbursable at standard reasonable
rates.
O. OTHER BUSINESS EXPENSES
Supplies, equipment rental, reprographics and facsimile expenses may be
reimbursed when traveling on SEMPRA ENERGY business. Such expenses shall
be billed at cost.
P. NON-ALLOWABLE EXPENSES
SEMPRA ENERGY will not provide any reimbursement for travel expenses for
family members, personal items, charitable contributions, or for any
other type of expense not listed above.
