ORIGINAL
INDEPENDENT SYSTEM OPERATOR
SCHEDULING APPLICATIONS, SCHEDULING INFRASTRUCTURE AND
BUSINESS SYSTEMS
CONTRACT
No. ISO-97 [ ]
SA/SI/BS CONTRACT TABLE OF CONTENTS
1. PARTIES ................................................. 1
2. AGREEMENT .............................................. 1
3. DEFINITIONS ............................................. 2
4. INTERPRETATION OF CONTRACT ............................. 7
5. SCOPE OF WORK .......................................... 7
6. WORK SCHEDULE .......................................... 8
7. RISK OF LOSS ............................................ 9
8. TITLE ................................................... 9
9. COMMERCIAL TERMS ....................................... 10
10. CONTRACT MODIFICATION .................................. 19
11. PROJECT MANAGEMENT .................................... 20
12. CODES AND STATUTES ..................................... 23
13. SUBCONTRACTORS ......................................... 23
14. PROPRIETARY INFORMATION AND MATERIAL .................. 23
15. PROPRIETARY RIGHTS AND LICENSES ......................... 25
16. SOURCE CODE ............................................ 28
17. INSPECTION, TESTING AND ACCEPTANCE ...................... 28
18. WARRANTIES ............................................. 31
19. SUPPLIER'S SYSTEM SUPPORT ............................... 34
20. INFRINGEMENT PROTECTION ................................ 35
21. FITNESS FOR DUTY ........................................ 37
22. INDEMNITY ............................................... 37
23. INSURANCE ............................................... 39
24. SAFETY NOTIFICATIONS .................................... 40
25. LIMITATION OF LIABILITY ................................. 43
26. DISPUTES ................................................ 44
27. TERMINATION AT WILL ..................................... 46
28. DEFAULTS AND TERMINATION FOR CAUSE ..................... 47
29. WAIVER .................................................. 49
30. ASSIGNMENT .............................................. 49
31. CONFLICT OF INTEREST/BUSINESS ETHICS .................... 50
32. EQUAL OPPORTUNITY LAWS .................................. 51
33. INJURY AND ILLNESS PREVENTION PROGRAM ................... 53
34. SEVERABILITY ............................................ 43
35. NOTICES ................................................. 54
36. GOVERNING LAW ........................................... 55
37. SECTION HEADINGS ........................................ 55
38. SURVIVAL ................................................ 55
39. ENTIRE AGREEMENT ........................................ 55
40. REPRESENTATIONS ......................................... 55
Annex A: Form of Guaranty
Annex B: Customized Software and Recoupment Fees
Annex C: Supplier Rates
Annex D: Form of Letter of Credit
Annex E: Software Maintenance Agreements
Annex F: WSCC Subregion Map
ii
Annex G: Third Party Software Licenses
Annex H: Potential Conflicts of Interest
Annex I: Purchaser's Equal Opportunity Purchasing Program Policy
Annex J: Policy Regarding Small Business Concerns and Small Disadvantaged
Business Concerns
Annex K: Injury and Illness Prevention Program Compliance Certificate
Annex L: Stage I DSOWs
Volume I: Common Sections
Volume II: Scheduling Infrastructure
Volume III: Scheduling Applications
Volume IV: Business Systems
THIS CONTRACT MADE as this 14th day of March, 1997, consists of the terms and
conditions by which the Parties to the Contract, identified herein, agree to be
bound:
WHEREAS, pursuant to the transition to a competitive electric market in
the State of California, the Independent System Operator Restructuring Trust
issued on December 17, 1996 a Request for Proposals to supply computer hardware
and software systems to provide for the ISO's scheduling and business (e.g.,
billings and settlements) functions (hereinafter "RFP");
WHEREAS, ABB Power T&D Company Inc. ("ABB") and Perot Systems Corporation
("Perot Systems") will form ISO Alliance, LLC as a Delaware limited liability
company with no independent employees or assets for the purpose of performing
through subcontracts between ABB and Perot Systems the Contract;
WHEREAS, as an inducement to the Independent System Operator
Restructuring Trust to enter into the Contract with the ISO Alliance, ABB and
Perot Systems have agreed to guaranty ISO Alliance's performance and obligations
under the Contract (the "Guaranties"), and have thereby executed such Guaranties
as are mutually agreeable to the Parties and the form of such Guaranties is
attached in Annex A;
NOW, THEREFORE, the Parties, as identified herein, have agreed as follows:
1. PARTIES
1.1 The Parties to the Contract are ISO Alliance, LLC, a Delaware
limited liability company ("Supplier"), and Independent System
Operator Restructuring Trust, established pursuant to the
ISO Trust Agreement (enabled by the Funding Decision, CPUC
Decision 96-10-044 (October 25, 1996)) ("Purchaser").
2. AGREEMENT
2.1 In consideration of the not-to-exceed Contract Price of $48,991,000 to be
paid as specified in this Section, and subject to changes pursuant to Section
10, Section 9, and other obligations to be performed by Purchaser as specified
herein. Supplier shall perform the Work and its other obligations as specified
herein. In consideration for Stage I Work Supplier shall be paid a fixed price,
subject to changes as provided in the Contract, of $45,559,767 (the "Stage I
Fixed Price"). Stage II Work is to be performed on a price, subject to changes
as provided in the Contract, to be negotiated upon approval of the Stage II
DSOWs but in any event for a price not to exceed $3,431,233 (the "Stage II
Guaranteed Maximum Price"). Reference to "the Contract Price"
shall be read to include the Stage I Fixed Price and the Stage II Guaranteed
Maximum Price unless the context unambiguously indicates otherwise.
3. DEFINITIONS
When used herein with initial capitalizations, whether in the singular or
in the plural, the following terms shall have the following meanings:
3.1 Acceptance or Accepted: When all of the conditions of acceptance
have been met, as set forth in Section 17 hereof.
3.2 Acceptance Test Procedure ("ATP"): Documents, prepared by
Supplier and approved by Purchaser, which designate the specific
objective tests and inspections to be performed on Subsystems and
the System, as appropriate, to determine its conformance with the
Detailed Statements of Work ("DSOWs") and the Contract prior to
acceptance by Purchaser.
3.3 Authorized Users: The employees, contractors, consultants and
System Users who are authorized, or whom the Purchaser is
permitted to authorize, to use the Licensed Software as provided
in the Contract.
3.4 Availability Test: Test for operational availability as specified
in the DSOWs.
3.5 Backup Unit: The hardware, computers, processors, firmware.
Documentation, Licensed Software, and interconnecting cables
and other incidental equipment as specified in the DSOWs and
located at Alhambra, California ISO site which are intended as the
backup unit to the Primary unit for the day-to-day operation of
the System.
3.6 Change Order: Document issued by Purchaser, and agreed to by
Supplier, which amends the Contract pursuant to Section 10.
3.7 Contract: This document of agreement, together with the DSOWs and
other attachments and documents expressly incorporated herein by
reference.
3.8 Contract Date: The date set forth below as the date the Parties
have executed the Contract.
3.9 Contract Modification: Amendments to the Contract which modify
(i) the Contract Price, (ii) Supplier performance milestones,
(iii) Purchaser delivery obligations, (iv) Stage I or Stage II
completion dates, or (v) required System functionality.
3.10 Contract Price: The aggregate sum to be paid hereunder by
Purchaser to Supplier, including the amount of any increase or
decrease provided for in any Change Orders.
3.11 Customized Software: All computer programs, code, procedures,
rules or routines in Source or Object Code, and all supporting
documentation identified in Annex B, as updated from time to
time, which are unique to Purchaser's System, and which perform
certain specialized functions and which embody Purchaser's
Confidential Material, including Derivative Works, Upgrades,
Enhancements and Error Corrections thereto.
3.12 Derivative Work: A revision, modification, translation,
abridgement, condensation, expansion, improvement, enhancement,
upgrade, error corrections or adaptation into other operating
systems, or other manipulation of the Licensed software which if
created without the permission of the owner would infringe on the
owner's rights.
3.13 Detailed Statement(s) of Work ("DSOWfsV): A functional
specification or description of the System and the Work, agreed
to by the Parties, to be performed under Stage I or Stage II of
the Contract. Stage I DSOWs are attached in Annex L hereto.
3.14 Developmental Unit: The hardware, computers, processors,
firmware, Documentation, Licensed Software, and interconnecting
cables and other incidental equipment which are intended to be
used for the development and testing of the Subsystems and the
System.
3.15 Documentation: Drawings, procedures, instructions, reports,
manuals, Licensed Software documentation, test data, test
scripts, simulation programs and other data, furnished by
Supplier pursuant to the Contract.
3.16 Enhancements: Any addition or modification to the Licensed
Software that adds new features or functionality or improves the
Licensed Software's performance.
3.17 Error Corrections: Any addition or modification to the Licensed
Software or Documentation that corrects an error, reestablishes
conformity of the Licensed Software to the DSOWs or restores
proper operation of the Licensed Software.
3.18 Field Technical Services: Additional technical services furnished
by Supplier at the Jobsite or System Premises, as appropriate,
such as technical support during installation and acceptance
testing.
3.19 Funding Decision: California Public Utilities Commission ("CPUC")
Decision 96-08-038 (August 2, 1996) as modified by CPUC Decision
96-10-044 (October 25, 1996), as that decision may be modified or
superseded. This decision among other things provides for funding
of the Work pending establishment of, and assumption of such
funding by, the Independent System Operator, and enables a
Trustee, a trust advisory committee and independent technical
advisors to have oversight over the Work and payments for such
Work.
3.20 Future Developments: All software, concepts, methods, techniques,
designs, processes and ideas, or other components developed
specifically for Purchaser by Supplier but not included in the
DSOW.
3.21 Independent System Operator ("ISO"): A corporation, to be formed,
which will operate the California interconnected electric
transmission system as contemplated in the Restructuring
Decision, and, through the Trust, for which the Work is being
performed and the System is being developed.
3.22 Integrated System Tests ("1ST"): Specific objective tests
prepared by Supplier and approved by Purchaser conducted to
demonstrate conformance with the DSOWs and the Contract prior to
the Operational Dry Run
3.23 Intellectual Property Rights: Any patent, copyright, trademark,
service mark (and any application or registration respecting the
foregoing), trade secret, and other intellectual property right
of any type.
3.24 Jobsites: The locations of the facilities for the development and
deployment of the System as set forth in the DSOWs.
3.25 Licensed Software: All computer programs, code (including Object
Code, and to the extent specified in the DSOWs, Source Code),
procedures, formats, templates, rules or routines, and all
supporting Documentation provided by Supplier to the Purchaser
for use in connection with the System, pursuant to the DSOWs,
including all Derivative Works, Upgrades, Enhancements, Error
Corrections, and Customized Software.
3.26 Major Subcontractors: ABB Power T&D Company Inc. ("ABB") and
Perot Systems Corporation ("Perot Systems") and other
Subcontractors that may be added in the future upon mutual
agreement of the Parties.
3.27 Object Code: The form of a computer program resulting from the
translation or processing of Source Code by a computer into
machine language or intermediate code, which is not convenient to
human understanding of the pro-
4
gram logic, but which is appropriate for execution or
interpretation by a computer.
3.28 Operational Dry Run: Specific objective tests prepared by
Supplier and approved by Purchaser, and conducted by Purchaser
with the assistance of Supplier on the System installed at the
Jobsite or System Premises, as appropriate, to demonstrate System
conformance with the DSOWs and the Contract.
3.29 Party or Parties: A party or the parties to the Contract.
3.30 Primary Unit: The hardware, computers, processors, firmware.
Documentation, Licensed Software, and interconnecting cables and
other incidental equipment as specified in the DSOWs located at
Folsom, California ISO site which are intended as the primary
unit for day-to-day operation of the System.
3.31 Purchaser: The Party so identified in Section 1 or, if assigned
to another person or entity, the then current assignee.
3.32 Purchaser's Representative f'PR"): The person or entity
designated by notice given to Supplier by Purchaser as being
authorized to act on behalf of Purchaser for the purpose of the
Contract, subject to any limitations specified in such notice,
and identified at Section 35.
3.33 Restructuring Decisions: CPUC Decision 95-12-063 (December 20,
1995) as modified by D.96-01-009 (January 10, 1996), in Dockets
Nos. R.94-04-031 and 1.94-04-032, as those decisions may be
subsequently modified or superseded.
3.34 Source Code: The set of instructions expressed in a non-machine
language from which the Object Code is derived.
3.35 Subcontractor: An entity contracting directly with Supplier,
including but not limited to Major Subcontractors, to furnish any
part of the Work including materials or services, or an entity
contracting with Supplier's subcontractors of any tier to furnish
any part of the Work including materials or services.
3.36 Subsystem: A computer system comprising part of the System which
performs a specific function described in the DSOWs, and is
agreed to be inspected or tested independently under the
Acceptance Test Procedures
3.37 Supplier's Representative ("SR"): The person or entity designated
by notice given to Purchaser by Supplier as being authorized to
act on behalf of Suppli-
er for the purposes of the Contract, subject to any limitations
specified in each notice, and identified at Section 35.
3.38 Supplier Rates: The rates charged by a Major Subcontractor for
work comparable to me Work, and if no comparable rate exists,
such Major Subcontractor's standard rate for similar services as
set forth in Annex C. Such rates are those rates charged between
the Major Subcontractors.
3.39 System: The integrated computer system or systems, including and
consisting of hardware, computers, processors, firmware.
Documentation, Licensed Software, and interconnecting cables and
other incidental equipment, which perform the functions described
in the DSOWs and include the Primary Unit and Backup Unit.
3.40 System Premises: The locations of the facilities where the System
is installed. :
3.41 System User: Any person, legal or natural, that uses the System
for its intended purposes, including but not limited to the use
in connection with the marketing, procurement and transmission of
electricity, and ancillary services.
3.42 Trust: The trust established pursuant to the Funding Decision to
manage funds for development of the infrastructure of the ISO.
3.43 Trustee: The trustee or trustees of the Trust.
3.44 Uncontrollable "Force: Causes beyond the reasonable control of a
Party including but not limited to: flood, fire, lightning,
earthquake, unusually severe weather, unavailability of
materials, epidemic, quarantine restriction, war, sabotage, act
of a public enemy, insurrection, riot, civil disturbance, strike,
restraint by court order or public authority and action or
non-action by or inability to obtain authorization or approval
from, any governmental agency or authority, which by the exercise
of due diligence and foresight such Party could not avoid and
which by exercise of due diligence such Party is unable to
overcome.
3.45 Upgrades: Any modifications, revisions or additions to the
Licensed Software that support new versions or releases of the
platforms, hardware, operating systems or applications, on or
with which the Licensed Software is designed to operate.
3.46 Work: The engineering, analysis, design, development,
manufacture, assembly, inspection, testing, shipment,
installation, integration, creation of Docu-
mentation, training, and all other tasks and obligations
of Supplier to be performed or furnished as required by the
Contract.
3.47 Work Schedule: A chronological listing of significant events and
milestones in the performance of the Work contained in the DSOW,
including delivery and testing of the System as agreed to by the
Parties.
4. INTERPRETATION OF CONTRACT
4.1 In the event of conflicting provisions within the Contract, the
provisions shall govern in the following order: (i) Change Orders
from the most recent to the earliest, (ii) this document of
agreement, and (iii) the DSOWs. In addition, the SA/SI/BS RFP and
Supplier's response are hereby incorporated into the Contract to
be used solely for interpretation purposes in the following
manner: Supplier reservations in their response to the SA/SI/BS
RFP expressly included in the DSOWs shall prevail over the
SA/SI/BS RFP, whereas for Supplier reservations to the SA/SI/BS
RFP, not expressly retained in the DSOWs, the SA/SI/BS RFP shall
prevail. Each party shall notify the other immediately upon the
determination of the existence of any conflict.
4.2 The Contract requirements will be interpreted reasonably and,
except where an express term or the context otherwise requires,
with due consideration given to the materiality of any minor
deviation from a particular requirement.
5. SCOPE OF WORK
5.1 Supplier shall perform the work and tender the deliverables
described in the DSOWs (Volumes II, III, and IV will be completed
by the Parties within one week following execution of the
Contract). Stage II DSOWs shall be developed and agreed to by
Supplier and Purchaser in conformance with the Stage I DSOWs. If
Purchaser and Supplier are unable to reach mutual agreement on
the Stage II DSOWs by the date specified in the DSOWs, and any
equitable adjustments relating thereto. Purchaser may either (i)
re-compete the Stage II Work, or (ii) engage Supplier to provide
the full System functionality as provided by the Contract.
5.2 This Contract is intended to include all requirements necessary
to perform the Work and to furnish the System in good working
order, performing all functions as specified in the DSOWs. Unless
expressly excluded in a DSOW or the Contract, any and all
equipment, labor, material and services not specified therein but
which are reasonably implied from the DSOWs and are reasonably
necessary to provide such a System shall be within the scope of
the DSOW and shall be furnished by Supplier for the Contract
Price.
6. WORK SCHEDULE
6.1 Supplier shall complete the Work and deliver the System and
Documentation as shown in the Work Schedule as set forth in the
DSOWs. Meeting these dates is essential to the operating schedule
of the facilities for which the System is to be furnished. Time
is therefore of the essence. The parties agree that completion of
each stage of the System pursuant to the Work Schedule is a
material obligation of the Contract.
6.2 If any milestone or deadline in the Work Schedule is not met or
it is reasonably certain that it will not be met due to causes
other than (i) Uncontrollable Forces or (ii) Purchaser's failure
to meet Purchaser's delivery obligations as specified in Section
9.2.3, and such delayed dates would be reasonably expected to
adversely affect the completion of the System in accord with the
Work Schedule, Supplier shall, at its own expense, take whatever
measures may be required (including but not limited to, adding
employees or consultants, shifts, and overtime) to bring the Work
back on schedule.
6.3 Uncontrollable Forces:
6.3.1 Supplier shall not be liable to Purchaser for delay or
inability of Supplier to perform the Work, due to
Uncontrollable Forces; provided that Supplier (i)
promptly notifies Purchaser in writing of the nature,
cause, date of commencement, and expected duration of
such delay or inability, and (ii) has exercised due
diligence to meet the Work Schedule. In such event.
Purchaser shall either (a) extend the Work Schedule for
a period of time consistent with the period of such
delay, without any change in the Contract Price, or (b)
direct by a Change Order that subsequent Work be
accelerated in order to meet the Work Schedule.
6.3.2 Purchaser shall not be in default in the performance of
its obligations under the Contract (other than
obligations to pay monies pursuant to the Contract for
Work performed and Accepted or Work performed and
thereafter Accepted), if Purchaser's delay or inability
to perform is due to Uncontrollable Forces.
6.3.3 The following delays shall in no event constitute
Uncontrollable Forces in performance by Supplier
and shall not constitute a reason for extending
the date for performance of the Work:
(a) Delays by Subcontractors not caused by
Uncontrollable Forces;
(b) Delays in approval by Purchaser due to
Documentation or approval schedules not in
accordance with the DSOWs; and
(c) Delays caused by Supplier's lack of
sufficient personnel with necessary
technical skills.
6.4 Upon request by Supplier, Purchaser will provide reasonable
access to ISO controlled premises including access outside ISO's
published working hours and on ISO's observed holidays to the
extent necessary for Supplier to deliver the System and
Documentation on the dates set forth in the Work Schedule.
6.5 Supplier's performance hereunder is contingent upon Purchaser's
delivery obligations specified in Section 9.2.3. In the event
delays in Supplier's performance occur as a result of Purchaser's
failure or untimely performance of such Purchaser delivery
obligations, the Contract, the Contract Price, or the Work
Schedule, as appropriate, shall be equitably adjusted to reflect
such delay in a Change Order and Supplier shall not incur any
liability to Purchaser or any other person as the result of such
delay. Subject to the foregoing, (i) the Purchaser shall promptly
notify Supplier when the required performance of such Purchaser
delivery obligation will be fulfilled and use its best efforts to
fulfill such delivery obligation, and (ii) the Parties will use
their best efforts in good faith to work around the deficiency
and continue me Work.
7. RISK OF LOSS
7.1 Risk of loss of or damage to each Subsystem shall pass from
Supplier to Purchaser upon delivery of that Subsystem to the
System Premises.
8. TITLE
8.1 Title to System hardware shall pass to Purchaser upon payment for
that hardware by Purchaser. The license(s) granted to Purchaser
as provided in Section 15 shall be effective upon final payment
of all amounts due and payable under the Contract upon Acceptance
or pursuant to the Termination at Will provisions of Section 27
or the Defaults and Termination for Cause provisions of Section
29.
8.2 Except for Availability Test data, title to test data developed
by Supplier or its Subcontractor and input or output received
through operation of the System or Subsystems during such testing
shall remain with Supplier, provided that Supplier shall provide
a copy of all such test data to Purchaser. Otherwise, title to
all data and information input into the System and to all
data and information output received through the operation
of the System shall remain with Purchaser.
8.3 Passage of title to the System shall be free and clear of all
liens and encumbrances (other than restrictions relating to
Licensed Software).
9. COMMERCIAL TERMS
9.1 Invoices:
9.1.1 For progress or partial shipment payments when so stated
in the Contract: The invoice for each progress payment
listed in Section 9.2.1 below shall be submitted to the
Purchaser following completion of the corresponding
Supplier performance milestone.
9.1.2 Final payment:
9.1.2.1 Stage I: The invoice for the final payment
for Stage I shall be submitted to Purchaser
when all of the items of the System for
Stage I have been received at the Jobsite
or System Premises, as appropriate, and the
System for Stage I has been Accepted
pursuant to Section 17 hereof.
9.1.2.2 Stage II: The invoice for the final payment
for Stage II shall be submitted to
Purchaser when all of the items of the
System for Stage II have been received at
the Jobsite or System Premises, as
appropriate, and the System for Stage II
has been Accepted pursuant to Section 17
hereof.
9.2 Payment:
9.2.1 Supplier performance milestones are set forth in Section
9.2.2 below. Progress payments shall become due following
completion of each Supplier performance milestone without
regard for the completion date scheduled for each such
Supplier performance milestone. When a Contract
Modification is approved pursuant to Section 10, the
Contract Price and the remaining Supplier performance
milestones and Supplier performance milestone payments as
specified in Section 9.2.2, and Purchaser's delivery
obligations as specified in Section 9.2.3, shall be
adjusted as appropriate. Following completion of each
Supplier performance milestone. Purchaser shall pay
Supplier the relevant milestone payment within thirty
days
10
of receipt of a correct invoice therefor. Late payments
shall bear interest at the lesser of (i) of two
percentage (2%) points above the reference rate charged
by the Bank of America, NT&SA, San Francisco, California,
on the first day of each month for that month or portion
thereof, or (ii) the highest rate allowed by law.
9.2.2 Supplier Performance Milestones: The Supplier performance
milestones and the percent of the Contract Price to be
paid upon completion of each such supplier performance
milestone shall be as follows (hereinafter "Supplier
Performance Milestones"):
Stage I - Supplier Performance Milestones
Supplier Performance Milestone Schedule
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
Stage II Supplier Performance Milestones: To be established in
Stage II DSOWs
9.2.3 Purchaser Delivery Obligations: The Purchaser delivery obligations
required for Supplier completion of Supplier Purchaser performance
milestones shall be as follows (hereinafter "Purchaser Delivery
Obligations"):
15
Stage I - Purchaser Delivery Obligations
Purchaser's Delivery Obligations
Schedule
Provide resource scheduling data 3/22/97
Provide WSS model 3/22/97
Provide registered TCP/IP and domain name addresses for 4/30/97
ISO
Provide folly functional development site capable of housing 4/1/97
100+ developers
Computer room at primary site, linked to WEnet, and ready to 4/ /97
support production equipment
WEnet POP available at Hayward, CA 4/ /97
Finalize settlement definition (supplier provide proposal by 4/15/97
4/15/97)
Finalize billing/credit definition (supplier provide proposal by 4/15/97
4/15/97)
Provide fully functional physical primary location for equip- 4/ /97
ment shipment and installation purposes
Computer room at backup site completed, linked to WEnet, 5/ /97
and ready to support production equipment
WEnet POP available at Dominguez Hills, Ca. 5/1/97
Provide fully functional physical backup site location 5/ /97
Provide all FERC/CPUC reporting requirements 7/15/97
ISO staff available to commence training 8/20/97
Finalize (i.e., freeze) power system model 7/15/97
ISO operational policies and procedures in place 9/1/97
ISO staff, non-Alliance provided equipment and systems (with 10/1/97
appropriate interfaces) ready to support operational dry run
Start operational dry run 10/1/97
16
Stage II - Purchaser Delivery Obligations: To be established
in Stage II DSOWs
9.2.4 In the event the System or Documentation, or portion thereof, does not
conform to the requirements of the Contract, a portion of the progress
payment specified for the applicable Supplier performance milestone or
the final payment may be withheld until such nonconformance is
corrected.
9.2.5 Purchaser will provide a Letter of Credit, in the form attached as Annex
D, at the Bank of America, San Francisco, California, for the benefit of
Supplier that will provide assurance of payment of the milestones as
achieved. Following payment of the final Stage I Supplier Performance
Milestone as set forth in Section 9.2.2 above. Purchaser shall renew the
Letter of Credit at an amount not Co exceed the then
Taxes: existing largest remaining Stage II Supplier Performance Milestone as
then set forth in Section 9.2.2 above.
9.3.1 Purchaser shall pay the sales, use, personal property and other taxes
applicable to the Work or System, except franchise taxes and taxes
levied upon Supplier's income which shall be paid by Supplier. The
Parties shall cooperate with each other to minimize any applicable tax,
to the extent permitted by law and, in connection therewith, each Party
shall provide the other Party with any resale certificates, information
regarding the use of materials, services or sales or other exemption
certificates or information reasonably requested by the other Party.
9.3.2 Supplier shall identify separately on invoices (i) the non-taxable
portion of the Contract Price and the reason therefor, and (ii) the
taxable portion of the Contract Price and the applicable taxes. Supplier
shall provide supporting data as may be requested by Purchaser.
9.3.3 Field Technical Services: For payment for additional technical services
by Supplier at the Jobsite or System Premises, as appropriate, such as
technical support during installation and acceptance ("Field Technical
Services") not included in the Contract Price:
9.3.4 Purchaser shall pay Supplier at Supplier Rates for Field Technical
Services approved by Purchaser which are not included in the Contract
Price based on actual time spent at Jobsites or System Premises, as
appropriate, in the performance of such services, provided that Supplier
shall have the right to establish a minimum per- call charge for on-site
Field Technical Services.
17
9.3.5 Purchaser shall reimburse Supplier for local travel and living
expenses while at Jobsites or System Premises, as appropriate,
performing Field Technical Services based on actual cost plus an
administrative surcharge of fifteen percent (15%) and for air
travel to and from Jobsites or System Premises, as appropriate,
at the lesser of published coach/economy class rates or actual
costs.
9.3.6 Supplier shall submit to the PR for approval on a weekly basis
timesheets setting forth the actual hours worked in the
performance of the Field Technical Services.
9.3.7 At the end of each month or upon completion of the work,
whichever occurs first. Supplier shall submit its invoice listing
the name of the persons, dates and hours worked and applicable
rates, including per diem and air travel charges for Field
Technical Services performed during that period.
9.3.8 Purchaser shall pay correct invoices for Field Technical Services
within thirty (30) days after receipt less any unsubstantiated or
incorrect charges. Late payments shall be at the lesser of (i) an
interest charge of two percentage (2%) points above the reference
rate charged by the Bank of America, NT&SA, San Francisco,
California, on the first day of each month for that month or
portion thereof, or (ii) the highest rate allowed by law.
9.3.9 Recoupment of deductions for unsubstantiated or incorrect charges
and retention for Field Technical Services shall be invoiced
separately, providing substantiating or correcting information.
9.3.10 Supplier shall provide notice of the event and attending
circumstances that may give rise to a claim for an equitable
adjustment within thirty (30) calendar days after the event which
gave rise to such claim becomes known to Supplier. Failure to
give such notice shall result in Supplier's waiver of such claim
for additional compensation. Supplier's acceptance of final
payment shall constitute its waiver of all such claims under the
Contract.
9.4 Software Maintenance Agreements:
9.4.1 Supplier has agreed to enter into, or to use its best efforts to
cause applicable third parties, including but not limited to
Major Subcontractors and Subcontractors (except that Supplier
shall cause Ernst & Young LLP, a Subcontractor to Supplier
through ABB), to enter into, certain Software Maintenance
Agreements attached as Annex E
18
and to provide certain services as specified therein, which are to
become effective following the warranty period. The price for these
services will be payable to Supplier or appropriate third parties, as
applicable, upon the signing of this Contract or as otherwise agreed
by the Parties.
9.5 Royalties or other charges for any Intellectual Property Rights
necessary to grant the license conveyed in the Contract (directly or by
implication) shall be considered as included in the Contract Price.
10. CONTRACT MODIFICATION
10.1 Generally: Contract Modifications shall be made only by mutual
agreement of the Parties. To be valid, such modification shall be
set forth in a Change Order amending the Contract that is issued
and executed as set forth in this Section 10. All Contract
Modifications shall be communicated through the SR and the PR.
Each Party shall promptly comply with each Contract Modification
executed in accordance with this Section and evidence its
acceptance of all of the provisions contained therein by promptly
returning the acceptance copy of each Contract Modification to
the other Party.
10.2 Purchaser Initiated Contract Modification: Upon receipt of a
request for a Contract Modification from Purchaser, Supplier
shall, within five (5) business days unless the parties otherwise
agree, submit to Purchaser in writing (i) the effect, if any, on
Supplier Performance Milestones and Purchaser Delivery
Obligations, (ii) the requisite mitigating actions, if required,
to ensure System operation by, the dates specified in the
Contract, (iii) an assessment of the impact of the Contract
Modification on the spare parts, training, testing, Documentation
work hours by type of labor, rates, material and Subcontract
costs and Work Schedule requirements, and (iv) the adjustment to
the Contract Price of the requested Contract Modification or
notification as to when such information and such adjustment to
the Contract Price shall be provided by Supplier. Within five (5)
business days after receiving such information and such
adjustment to the Contract Price for the requested Contract
Modification, Purchaser shall approve, reject or withdraw the
request for such Contract Modification. Failure by Purchaser to
respond within this five (5) day period shall be deemed a
rejection of such Contract Modification.
10.3 Supplier Initiated Contract Modifications: Upon submitting a
request for a Contract Modification, Supplier shall provide to
Purchaser in writing (i) the effect, if any, on Supplier
Performance Milestones and Purchaser Delivery Obligations, (ii)
the requisite mitigating actions, if required, to ensure System
operation by the dates specified in the Contract, (iii) an
assessment of the impact of the Contract Modification on the
spare parts, training, testing,
19
Documentation work hours by type of labor, rates, material and
Subcontract costs and Work Schedule requirements, and (iv) the
adjustment to the Contract Price of the requested Contract
Modification or notification as to when such information and such
adjustment to the Contract Price shall be provided by Supplier.
Within five (5) business days after receiving such information
and such adjustment to the Contract Price for the requested
Contracted Modification, Purchaser shall approve or reject the
requested Contract Modification. Failure by Purchaser to respond
within this five (5) day period shall be deemed a rejection of
such Contract Modification.
10.4 Implementation: Supplier shall not implement a Contract
Modification, or submit an invoice for the resulting price
change, until the authorizing Change Order has been issued by
Purchaser and accepted by Supplier and has been executed by both
Parties.
10.5 Changes:
10.5.1 In the event Supplier's cost of performance of the Work
or the time required for the Work is increased by (i) a
change in the Work directed by PR, (ii) Purchaser's
breach of a Purchaser Delivery Obligation under the
Contract, or (iii) Uncontrollable Force, an equitable
adjustment shall be made in the Contract Price and, if
appropriate, in the Work Schedule. The equitable
adjustment or change of schedule shall be presented to
Purchaser in a proposed Contract Modification or a claim,
provided, that Supplier has promptly notified Purchaser
that Supplier considers that such change, breach or
Uncontrollable Force event will cause such adjustment or
change.
10.5.2 Supplier shall present the Proposed Contract Modification
or the claim within thirty (30) calendar days after the
event which gave rise to such modification or claim
become known to Supplier. Failure to give such notice
shall result in Supplier's waiver of such claim for
additional compensation. Supplier's acceptance of final
payment shall constitute waiver of all such claims under
the Contract.
11. PROJECT MANAGEMENT
11.1 PR: The PR shall manage Purchaser's activities associated with
the Contract. Any correspondence to Purchaser of a technical or
administrative nature shall be addressed to the attention of the
PR as provided in Section 36 and shall be identified by the
Contract number.
20
11.2 SR: The SR shall have overall responsibility for directing the Work. Any
correspondence to Supplier of a technical or administrative nature shall
be addressed to the attention of the SR as provided in Section 36 and
shall be identified by Contract number.
11.3 Reports: Within thirty (30) days after execution of the Contract,
Supplier shall furnish to the PR the current status of the events in the
Work Schedule. Thereafter, Supplier shall furnish every month to the PR
a status report showing the actual status of the Work and each Supplier
performance milestone. If actual completion of Supplier's performance
milestones lag such scheduled dates, an explanation shall accompany the
status report stating the problem area, measures taken, and that will be
taken, to eliminate the problem, and a good faith estimate of whether or
when the item will be back on schedule. Notwithstanding the foregoing,
the PR shall be notified immediately of any potential problem situations
which may affect the timely completion of any of the Supplier
Performance Milestones specified in Section 9.2.2.
11.3.1 In the event Supplier reports made pursuant to this Section 11.3
indicate Supplier's performance milestones as specified in
Section 9.2.2 and Work Schedule may not be met. Supplier shall
upon request by Purchaser review allocation of Supplier's
resources and take necessary action, including the assignment or
hiring of additional employees, or the retention of additional
Subcontractors. If, in the opinion of Supplier, the need for such
action is due to Purchaser's failure to meet Purchaser Delivery
Obligations as specified in Section 9.2.3, Supplier shall submit
a Change Order seeking equitable adjustment within five (5) days
of undertaking such corrective action unless the Parties
otherwise agree.
11.3.2 In the event Purchaser anticipates that a Purchaser delivery
obligation may not be met. Purchaser shall timely notify Supplier
of the problem area, the measures Purchaser is taking, or will
take, to provide such Purchaser delivery obligation, and a good
faith estimate of whether or when such Purchaser delivery
obligation will be provided to Supplier. Notwithstanding the
foregoing, the SR shall be notified immediately of any potential
problem situations which may affect the ability of Purchaser to
provide any of the Purchaser Delivery Obligations specified in
Section 9.2.3.
11.4 Records Access: Purchaser, the PR and their agents shall have the right
of access to Supplier's and any Major Subcontractor's facilities and
non-financial records directly relating to the Work upon reasonable
notice and during normal working hours to verify conformance to the Work
Schedule and inspect the Work.
21
11.5 Compliance: PR's approval of any interim or partial Documentation or
data submittals shall not relieve Supplier from compliance with all the
requirements of the Contract.
11.6 Executive Committee:
(a) The SR will organize and maintain the minutes of, and the PR and
SR will alternately chair, an Executive Committee, the principal
activities of which will be to review the current status of the
Work, including Supplier's progress toward and completion of its
performance milestones, and to resolve any outstanding issues
escalated by the PR and SR.
(b) The members of the Executive Committee shall include the PR, the
SR, the senior technical manager having responsibility for the
System of each of Purchaser and Supplier, an officer or relevant
executive of Purchaser, Supplier and each Major Subcontractor,
and such other persons as the PR or SR deems appropriate. Each
Party shall cause its appointees to the Executive Committee to
devote such time and attention to the activities of the Committee
as may be reasonably necessary to fulfill its responsibilities.
If an appointee ceases to serve on the Executive Committee for
any reason, a replacement member of equivalent responsibility
will be appointed as soon as practicable by the applicable Party.
(c) The Executive Committee shall meet as often as necessary, but not
less than bi-weekly by telephone, and once per month in person.
At each meeting, the Executive Committee shall review, among
other things, (i) Supplier's conformance to the Work Schedule,
including but not limited to Supplier's progress toward and
timely completion of its performance milestones, (ii) Purchaser's
conformance to the Work Schedule, including but not limited to
Purchaser's progress toward and timely completion of its delivery
obligations, (iii) Supplier's current staffing levels and any
anticipated requirements for additional staffing, (iv) Supplier's
anticipated requirements for access to Purchaser's personnel
during the following thirty (30) days, (v) where necessary,
adjustments to the Work Schedule by Supplier and Purchaser during
the following thirty (30) days, (vi) proposed changes to the
DSOWs, the Work, Supplier's performance milestones. Purchaser's
delivery obligations, or the System functionality or performance
requirements or capabilities, including any outstanding Change
Orders, (vii) claims by Supplier under Section 10.5, and (viii)
all other issues escalated to the Executive Committee by the PR
and SR.
22
(d) During the period between meetings of the Executive
Committee, the Parties will work together to implement the
agreements reached by the Executive Committee including,
to the extent necessary, revising the Supplier Performance
Milestones, Purchaser Delivery Obligations, DSOWs, and
Work Schedule in harmony with those agreements.
12. CODES AND STATUTES
12.1 The Work shall comply with all applicable laws, statutes, acts,
ordinances, regulations, codes and standards of federal, state
and local governmental agencies having regulatory jurisdiction.
Any changes to these after January 21, 1997, the date of
Supplier's bid submitted to Purchaser, shall be treated as a
change to the Work and shall be authorized by a Change Order.
12.2 Supplier shall conform to the employment practices requirements
of Executive Order 11246 of September 24, 1965, as amended, and
applicable regulations promulgated thereunder.
13. SUBCONTRACTORS
13.1 Supplier shall at all times be responsible for the Work, and for
the acts and omissions of Subcontractors and persons directly or
indirectly employed by Subcontractor, which acts or omissions,
were they acts or omissions of Supplier or any persons directly
employed by Supplier, would be a breach of the Contract. The
Contract shall not constitute a contractual relationship between
any Subcontractor and Purchaser. Purchaser shall not have any
obligation for payment to any Subcontractor. Purchaser shall have
the right to approve any new Subcontractors who shall have
responsibility for delivery of a Subsystem, provided that such
approval shall not be unreasonably withheld.
14. PROPRIETARY INFORMATION AND MATERIAL
14.1 Confidential Material: "Confidential Material" shall mean
business or technical information and materials (including but
not limited to plans, drawings, specifications, designs, oral and
visual disclosures, records, source code and object code and
related documentation) that is marked "confidential" or with
words of similar meaning, and provided to one party (the
"Receiving Party") by the other Party. Confidential Material
shall also include, but not be limited to, information received
from a Disclosing Party in connection with the DSOW, the
Contract, or the performance of the Work, information developed
expressly for Purchaser under the Contract, and all Licensed
Software
23
and Documentation. Confidential Material shall not include information
that the Receiving Party establishes by substantial evidence:
(i) is or has become generally available to the public other
than by a disclosure by the Receiving Party;
(ii) was possessed by the Receiving Party prior to its
acquisition from the Disclosing Party; provided that the source
of such information was not known by the Receiving Party
to be bound by a confidentiality obligation to the
Disclosing Party or any other party with respect to such
information;
(iii) is received by the Receiving Party from a third party who
has the right to disclose such information;
(iv) has been independently developed by the Receiving Party by
its employees or third parties that have not had access to the
Confidential Material in the possession of the Receiving
Party; or
(v) is required by law, or by a governmental agency, court or
tribunal, to be disclosed.
14.2 A Receiving Party in possession of Confidential Material from a
Disclosing Party obtained under this Contract, the DSOW or during the
negotiations of this Contract shall hold such Confidential Material in
confidence and, except as permitted in this Section 14, shall not
disclose it, or otherwise make it available to any person or third
party, or use it for the benefit of any third party, without the prior
written consent of the Disclosing Party.
14.3 Each Party agrees that all Confidential Material in its possession that
was received from a Disclosing Party:
(i) shall be used by such Party (including its employees,
agents and consultants) only for the purpose of performing the
Work or in operating and maintaining the System by, or for, the
Purchaser; and
(ii) shall not be reproduced, copied, in whole or in part,
except as specifically directed by the Disclosing Party, or if
necessary for the purposes set forth in (i) above; and
(iii) shall, together with any copies (except backup and
archival copies produced in accordance with a Party's network
information processing procedures or retained in accordance
with applicable law), reproductions or other records thereof,
in any form, and all in-
24
formation and materials developed therefrom, be returned
to the Disclosing Party when no longer needed in
connection with the Contract or in the use of the System,
by or for the Purchaser, except as otherwise expressly
agreed by the Parties in writing; and
(iv) may be disclosed by such Party to employees,
consultants and third persons (including its contractors,
subcontractors, consultants or other person) for the
purposes set forth in (i) above if the Receiving Party
obtains from such persons a written nondisclosure
agreement substantively equivalent to this Section 14 to
treat such information or material as confidential; and
provided, however, that disclosure of Licensed Software
Source Code or Documentation shall not be made to any such
consultants or third persons unless the Purchaser has
first offered to Supplier, and Supplier has declined, the
opportunity to provide to Purchaser, on substantially the
same terms and price offered by any such consultant or
third person, the service or product for which such a
disclosure is necessary.
14.4 Confidential Material furnished to the Receiving Party in
connection with the Contract, shall be protected by the Receiving
Party from disclosure to others with reasonable efforts in that
regard.
14.5 Each Receiving Party agrees that (i) violation of this Section 14
would cause irreparable harm to the Disclosing Party which could
not be adequately remedied by damages, and (ii) injunctive or
other equitable relief is an appropriate remedy for violation of
this Section 14. Receiving Party also agrees to waive any
requirement for the posting of any bond by the Disclosing Party
in connection with such remedy.
14.6 Except as otherwise expressly provided for or incorporated into
the Contract, the confidentiality provisions of this Section 14
shall constitute the sole confidentiality obligations of the
Parties under the Contract.
15. PROPRIETARY RIGHTS AND LICENSES
15.1 Software License. Supplier hereby grants to Purchaser, upon
Acceptance and final payment or as otherwise provided in the
Contract, including the Annexes thereto, a non-exclusive,
99-year, nontransferable (except pursuant to an assignment under
Section 30) fully paid-up, license to use, reproduce, distribute,
and display (all of the foregoing to the extent reasonably
necessary) the Licensed Software in connection with the
authorized use of the System, including, but not limited to,
training, operation, modification, and maintenance, subject to
the provisions of this Section 15.
25
15.1.1 Purchaser Limitations:
(a) Purchaser shall restrict the installation and use of the Licensed
Software to two sites (logical), and to computer workstations at
participating area control centers and SCADA centers, and will not use
the Licensed Software to provide electric transmission jurisdiction, or
to extend System applications or functions, beyond the control areas, as
they exist on the Contract Date, of the electric utilities any part of
whose service areas as of the Contract Date are within the
California-Southern Nevada Area of the WSCC Sub- Region as shown on the
map attached hereto as Annex F. There is no geographic limit on
acquisition of transmission grid data or generation control/date
acquisition via computer links to other independent control centers,
ISO's, data banks or other communication channels to generators.
(b) Purchaser shall not reverse engineer, disassemble, or decompile any of
the Licensed Software, including but not limited to Licensed Software
provided by Supplier's licensors. Purchaser shall make all reasonable
efforts to prevent any of its employees and subcontractors (other than
those Subcontractors engaged by Supplier) from independently attempting
any such prohibited activities;
(c) Purchaser shall not publish the results of any benchmark tests run on
the Licensed Software;
(d) Purchaser recognizes and acknowledges the licensors of third party
software included in the Licensed Software to be third party
beneficiaries of this grant of license;
(e) Except as otherwise permitted in Section 30, Purchaser will not assign,
timeshare, rent, or resell the Licensed Software to other persons, use
the Licensed Software to provide consulting services to other persons at
a profit, or reuse or install on third party systems the License
Software;
(f) Purchaser shall protect the Licensed Software from disclosure to
others in accordance with the provisions set forth in Section 14 of
this Contract;
(g) Purchaser shall not permit use of Licensed Software applications that
utilize third party software, as specified in the DSOWs, by more than
the licensed number of concurrent users as specified in the DSOWs or
such additional number of concurrent users for which
26
additional license fees have been paid, or on any basis other than that
for which such third party software has been licensed;
(h) Purchaser shall be bound by the license agreement terms required by
third party software providers of any of the Licensed Software as
specified in the DSOWs which are procured by Supplier in prepackaged
form for delivery to Purchaser under the Contract; and
15.1.2 Purchaser Rights: Purchaser's rights under this grant of license shall
include:
(a) the right to use the Licensed Software by means of, or in
conjunction with, known and future technologies, including but
not limited to known and future platforms, provided that such
technologies (or platforms) have been duly licensed to Purchaser
for such use. Purchaser has paid any required royalties or
license fees associated with such license, and provided further
that neither Supplier nor its Subcontractors shall have any
obligation to support the Licensed Software on or in conjunction
with such future technologies (or platforms).
(b) the right to use Upgrades and Enhancements of the Licensed
Software during the life of the System as it may be modified from
time to time;
(c) the right to permit employees, contractors and consultants of
Purchaser to use and reproduce (to the extent reasonably
necessary) the Licensed Software solely in conjunction with or
for the purpose of the performance of services for Purchaser in
connection with the System;
(d) the right to permit System Users to use the executable form of
the Licensed Software as required for their use of the System for
its specified purposes;
(e) the right to develop, or have developed on its behalf, Derivative
Works, Future Developments, Upgrades, Enhancements or Error
Corrections using the Licensed Software technologies; and
(f) the right to use the Licensed Software for performing ISO
functions as such functions are defined in the Trust Agreement,
legislation, decisions of the CPUC, and the Memorandum of
Understanding leading to the formation of the ISO as
27
of the Contract Date and subject to the restrictions of Section
15.1.1 (a).
15.1.3 With respect to third party software, nothing herein is
to be construed as conveying any additional rights
beyond that granted in the applicable third party
software license as such licenses are identified in
Annex G.
15.2 Customized Software. To the extent that Customized Software and
any Derivative Works of the Customized Software are licensed by
Supplier to third parties. Supplier agrees to pay Purchaser a
recoupment fee to be assessed on every such license granted; such
Customized Software and applicable recoupment fees which are to
be negotiated. Such Customized Software and recoupment fees are
identified in Annex B as updated from time to time as agreed by
the Parties.
15.3 Future Developments. Future Developments shall be made pursuant
to a purchase order under terms, including ownership, to be
negotiated on a case- by-case basis.
15.4 Right to Copy the Licensed Software. Purchaser shall be entitled
to make or cause to be made up to the number of copies of the
Licensed Software as specified in the DSOWs for the purposes
permitted hereunder, plus a reasonable number of backup and
archival copies. Such copies may be made without further
permission of Supplier or the copyright owner and regardless of
whether such Licensed Software or other materials are copyrighted
or otherwise proprietary. All such copies shall be subject to the
terms of the Contract and to the applicable license agreement.
15.5 Distribution Rights: Purchaser may distribute authorized copies
of the Licensed Software for purposes permitted hereunder to
Authorized Users (subject to Section 14 obligation to obtain
non-disclosure agreements) by such means or technologies as
Purchaser may choose, including without limitation physical
media, electronic transmission and telecommunications, and known
and future technologies, provided that such distributions are in
accordance with the confidentiality provision of Section 14.
16. SOURCE CODE
16.1 Supplier shall deliver to Purchaser the Source Code for these
portions of the Licensed Software specified in the DSOW.
17. INSPECTION, TESTING AND ACCEPTANCE
28
17.1 Inspection: Purchaser shall have the right at all reasonable times to
inspect and witness testing of the System and to verify milestone
completion through visual inspection or review of relevant records.
Supplier shall make all necessary arrangements and provide all
reasonable facilities and access for such inspection and witnessing,
either at Supplier's place of fabrication, manufacture or assembly, or
at any other place where any major assembly of the System is fabricated,
manufactured or assembled. Inspection by Purchaser shall not be
construed as constituting either a waiver of any rights of Purchaser or
obligations of the Supplier, or Acceptance. Supplier shall give
Purchaser a minimum often (10) calendar days prior notice as to the time
when the System or any major hardware and software component thereof
will be ready and available for inspection.
17.2 Stage I Testing, Placing m Service and Acceptance:
17.2.1 The System shall be tested by Supplier and Purchaser pursuant to
ATPs as provided in the appropriate Stage I DSOWs, to include
Integrated System Stability Testing, Operational Dry Run, and
Availability Test.
17.2.2 Ready To Be Put In Service
17.2.2.1 Upon completion of the Stage I Operational Dry Run, the
System will be deemed to be ready to be put in service
if there are no Critical Variances. "Critical Variances"
are those which (i) render any Stage I System functions
as defined in the DSOWs unavailable, (ii) reduce the
availability of the total System below adequate levels,
(iii) produce erroneous results which affect System
operations, or (iv) render System performance below
adequate levels as specified in the DSOWs.
17.2.2.2 The existence of variances which are not Critical
Variances will not be a basis to consider the System not
ready to be put in service. However, an aggregation of
variances which individually are not Critical Variances
but which in combination meet the criteria for a
Critical Variance, will be considered as a Critical
Variance for purposes of this section.
17.2.2.3 If, despite the existence of Critical Variances, the
System is actually placed in service by the ISO, it
29
will be deemed to be ready to be put in service for the purposes of this
section.
17.2.3 Acceptance:
Acceptance of the System ("Acceptance") by Purchaser shall occur when
all of the following conditions have been met or waived by the Purchaser
in writing:
17.2.3.1 All tests required by this Contract and me DSOWS, required
for Stage I have been completed in accordance with the
terms and conditions herein; and
17.2.3.2 The System has been put in service and meets all of the
requirements for Stage I set forth in this Contract and the
DSOWS and operates and performs all functions as described.
,
17.2.3.3 All deliverables including instruction books, manuals, and
all other Documentation, have been received by Purchaser in
conformance with this Contract; and
17.2.3.4 Purchaser or PR has notified Supplier in writing of
Acceptance.
17.2.3.5 The Work shall be deemed completed, accepted, and ready for
final payment when all of the aforestated conditions have
been met. Upon such Acceptance, Supplier shall invoice
Purchaser for the final payment and any and all outstanding
retention.
17.2.4 In the event Purchaser has not notified Supplier in writing of
Acceptance and Supplier believes Section 17.2.3 has been satisfied
so that Acceptance by Purchaser is warranted. Supplier may notify
Purchaser in writing asserting that Acceptance is warranted and
Purchaser shall respond within thirty (30) days, stating whether it
agrees with Supplier. In the event Purchaser determines Acceptance is
not yet warranted, the Parties shall make a good faith effort to resolve
such dispute prior to resorting to dispute resolution pursuant to
Section 26. Pending resolution of such dispute. Purchaser shall
otherwise pay undisputed properly invoiced amounts and Supplier shall
continue to perform the Work in accordance with the Work Schedule.
30
17.3 Stage Two Testing and Acceptance: Stage II testing shall be
conducted pursuant to the Stage II DSOWS that will be developed
and agreed to as provided in Section 5.1.2. Acceptance of the
Stage II System shall be accomplished by the same procedures as
required for Stage I acceptance at Section 17.2.3.
18. WARRANTIES
18.1 System Warranty: Supplier warrants that all components of the
System (including but not limited to hardware and Licensed
Software) furnished by Supplier under the Contract, shall:
(a) be free of all liens and other encumbrances of title;
(b) be new as of a date not earlier than the Contract Date,
not from the surplus market, and of the kind and quality
specified in the DSOWs;
(c) perform the functions specified in the Contract; and
(d) conform to all requirements and descriptions, detailed and
general, regarding the System contained in the Contract
and/or the Documentation.
18.2 Software Warranty: Supplier warrants that the Licensed Software
will:
(a) be in good operating order and conform in all respects to
the Documentation, all applicable ATPs and the Contract;
(b) be compatible with and operate properly on, or with, the
hardware for which it is intended;
(c) be free from viruses or other surreptitious code that
affect the operation or the good working order of the
Licensed Software or the System;
(d) not contain any code which would have the effect of
disabling or otherwise shutting down authorized use of all
or any part of the Licensed Software or the System; and
(e) on or before July 1, 1998, be century compliant for the
year 2000. In order to be century compliant. Supplier
agrees that the Customized Software shall be capable of
accounting for all calculations using a century and date
sensitive algorithm for the year 2000 and the fact that
the year 2000 is a leap year, and that Supplier shall use
31
its best efforts to ensure Licensed Software obtained from third
parties (excluding Customized Software provided by Ernst & Young
LLP which shall be treated for these purposes as being provided
directly by Supplier) shall be so capable. Supplier agrees that
Purchaser may request test scripts from Supplier to validate that
the Licensed Software is century compliant and determine the
latest future date such Licensed Software is able to process. In
the event Supplier is unable to validate the ability of the
Licensed Software to be century compliant on or before July 1,
1998, Supplier shall, within 10 days of Purchaser's request, at
Purchaser's option, either (a) permit Purchaser to modify such
software so that it is century compliant or (b) reimburse
Purchaser for the costs of obtaining a function equivalent of
such software.
18.3 Hardware Warranty: All Hardware is supplied only as warranted by the
manufacturer. All original manufacturer's warranties covering the
hardware shall be transferred and assigned to Purchaser upon
installation of such hardware at the Jobsite, or System Premises, as
appropriate. Upon expiration of such warranties, it shall be the
responsibility of Purchaser to enter into a hardware maintenance
agreement directly with the manufacturer or a third party of Purchaser's
choosing. Supplier warrants that all hardware delivered by Supplier
under the Contract shall be free of all liens and encumbrances.
18.4 Documentation Warranty: Supplier warrants that the Documentation shall
be accurate, complete, and as specified in the DSOW. Supplier shall, at
its sole expense, promptly correct any nonconforming Documentation .
18.5 DISCLAIMERS: SUPPLIER EXPRESSLY WARRANTS THE SYSTEM AND THE WORK
PERFORMED HEREUNDER ONLY AS SET FORTH HEREIN. SUPPLIER MAKES NO OTHER
WARRANTIES, EITHER EXPRESS OR IMPLIED. NO IMPLIED WARRANTIES, INCLUDING
THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SHALL
APPLY. SUPPLIER'S SOLE OBLIGATION AND THE EXCLUSIVE REMEDIES OF
PURCHASER FOR ANY BREACH BY SUPPLIER OF ITS WARRANTIES SHALL BE AS
EXPRESSLY STATED IN THIS SECTION 18.
18.6 Exclusions: The limited warranty provided in the Contract will not apply
to, and Supplier will have no warranty obligation with respect to, any
defect, malfunction or nonconformity resulting from (i) improper site
preparation or maintenance by or on behalf of Purchaser (other than by
Supplier or its Subcontractors), (ii) calibration, maintenance,
modification or use by or on behalf of Purchaser (other than by Supplier
or its Subcontractors), (iii) operation of hardware outside of its
published environmental specifications, includ-
32
ing any failure of electrical power, air conditioning or humidity
controls, (iv) hardware, software, interfacing or supplies installed or
supplied by Purchaser, any subcontractor to Purchaser (other than
Supplier or its Subcontractors, or any System User, or (v) any cause
other than ordinary use. In addition, Supplier will have no warranty
obligation to adjust, repair or replace any component of its adjustment,
repair or replacement is made impractical because of post-installation
changes made by Purchaser or its subcontractors (other than by Supplier
or its Subcontractors) rendering such component inaccessible for
purposes of the required adjustment, repair or replacement.
18.7 Duration: Any failure of the System, the Documentation or the Licensed
Software to comply with the express warranties set forth in this Section
18 which is discovered within one year after acceptance of the portion
of the Work affected by such failure, but not later than the effective
date of the Maintenance Agreement into which Purchaser will enter as
provided in this Contract, shall be corrected by Supplier in a manner
approved by the Purchaser, such approval not be unreasonably
withheld, at Supplier's sole expense with due diligence and
dispatch as required to make the System conform to the warranties stated
hi this Contract, including, but not limited to, any necessary
adjustments, modifications, repair or replacement, changes to the
Licensed Software and Documentation, and including all necessary parts,
transportation charges and labor as may be necessary. Such correction
shall be Purchaser's exclusive remedy and Supplier's sole liability for
any such breach of warranty.
18.8 Warranty Performance: Supplier shall perform such corrective Work at the
facilities where the System is installed to minimize the down time of
the System. Such Work shall be performed as follows: For any defects,
mal functions or nonconformities that prevents the proper use of
the System, Supplier shall provide diagnostic information within
four (4) hours after the Purchaser's problem call, and, if correction at
the Jobsite is required, shall dispatch personnel within twenty-four
(24) hours after the Purchaser's problem call to perform such
corrective Work. For minor defects, malfunctions or nonconformities
which do not affect the use or operation of the System, Supplier may
group the correction of such defects, malfunctions or nonconformities as
agreed to by the Purchaser.
18.9 Cover: If Supplier fails to promptly make the necessary corrections of
defects, malfunctions or nonconformities discovered during the warranty
period, the Purchaser, upon notification to Supplier, may perform or
have performed such necessary warranty correction work and Supplier
shall pay the Purchaser for all such costs reasonably incurred
including, but not limited to, direct labor programming, consulting,
material, subcontracts, and other related costs.
18.10 Services: Supplier warrants that all Work performed by Supplier pursuant
to the Contract shall be performed with the degree of skill of the trade
and care required by good and sound procedures and practices prevailing
at the time when the services are performed and shall meet the
requirements of the DSOW. In the event that any services performed
pursuant to the Contract are discovered within ninety (90) days after
completion of such services not to comply with the foregoing warranty.
Supplier shall immediately correct and/or re-perform such services.
18.11 Conditions of Warranties: The warranties set forth in this Section 18
are subject to the following conditions applicable to the item for which
a breach of warranty is claimed:
18.11.1 The Purchaser shall give Supplier written notification (or
telephone notification followed up in writing) of any failure
to comply with a warranty within a reasonable time after the
Purchaser becomes aware of such failure.
18.11.2 The Purchaser shall have the right to continue to operate the
System, or any part thereof which may require warranty
correction or repair, until such time as the Purchaser elects
to remove such System or part thereof from service; provided
that, to the extent Supplier would not otherwise be liable
under the Contract, Supplier shall have no liability or
obligation to Purchaser for any damage to the System or
liabilities caused by such continued operation.
18.11.3 The Purchaser shall operate and maintain the System in
accordance with the operation and, if applicable, maintenance
procedures agreed upon by the Parties; provided and on
condition that. Supplier shall furnish to Purchaser such
operating and maintenance procedures clearly stated in writing
and properly identified.
18.11.4 Final payment by the Purchaser shall not release Supplier from
any of its warranty obligations.
19. SUPPLIER'S SYSTEM SUPPORT
19.1 Supplier or Major Subcontractors shall make available
replacement parts, expansion modules, hardware and software
support on System components for a period of up to 10 years,
provided that Purchaser shall have purchased, and Supplier put
into effect, the Software Maintenance Agreements with Supplier
or Major Subcontractor and appropriate maintenance agreements
with hardware manufacturers through the same period. In the
event, however, that certain of these devices are not
available due to obsolescence, and duplicates
34
cannot be purchased at a reasonable price in comparison with
that of the original unit, the Supplier may, with prior
Purchaser approval not be unreasonably withheld, supply a
device which is nearly similar and provides comparable
services with functionality and responsiveness comparable to
the obsolete device.
19.2 If, for administrative reasons. Purchaser orders replacement
parts for the System under a new purchase order instead of
under the Contract, Supplier or Major Subcontractors agrees to
sell such replacement parts under these general terms and
conditions as set forth in the Contract.
19.3 Supplier further agrees that, if Supplier or Major
Subcontractors cannot or no longer fulfills its maintenance
and spare part obligations. Supplier or Major Subcontractor
shall use it best efforts to provide or secure for Purchaser
the necessary maintenance services and, on a form, fit, and
function basis, the required spare parts.
19.4 Supplier shall not unreasonably interfere with normal
operation of the facilities where the System is installed, or
with the equipment, or the work of any contractors or
subcontractors on the System Premises. When Supplier
anticipates unavoidable interference, it shall so notify the
PR as soon as possible, but at least fifteen (15) days in
advance. The PR shall determine, in advance, whether such
interference is unavoidable and shall, if required, establish
the reasonably necessary procedures under which the
interference shall be allowed. The PR shall have final
determination of priorities in case of conflicts with
operations or work of others. Supplier shall not operate any
of the ISO's equipment (other than the affected portions of
the System if necessary at the sole discretion of Purchaser to
provide the System support) or control devices or those of any
other contractor or subcontractor to Purchaser on the System
Premises.
20. INFRINGEMENT PROTECTION
20.1 Supplier shall indemnify and save harmless the Purchaser and
its successors, permitted assignees and transferees and
Authorized Users (all herein referred to individually as
"Infringement Indemnitee" and collectively as "Infringement
Indemnitees") against any and all liabilities, judgments,
costs, expenses, and damages, which may be awarded against any
of the Infringement Indemnitees in any suit, action or
proceeding brought against any of the Infringement Indemnitees
for infringement or alleged infringement of any Intellectual
Property Right in a court of competent jurisdiction, arising
out of the use by the Infringement Indemnitee(s) of the System
or any part thereof, in the ordinary course of its use for the
purposes hereunder specified or the exercise of any rights
granted under Section 15 hereof. If any action, claim
35
or suit for infringement of any Intellectual Property Right or other
proprietary right, or royalty or license agreement, be made or
instituted against the Infringement Indemnitee(s) as above specified on
account of the use of the System, (or any part thereof) or the exercise
of the granted rights. Supplier shall assume the defense of such action,
claim or suit and all expenses incident to the defense thereof.
20.2 Supplier shall have no liability under this section and Purchaser shall
indemnify and save harmless Supplier: (i) for any claim of infringement
based on me use of any superseded or altered release of any Licensed
Software provided or obtained by the Purchaser from parties other than
the Supplier if the infringement would have been avoided by the use of a
current unaltered release of the Licensed Software (or component
thereof) provided to Purchaser by Supplier; (ii) for any claim of
infringement based on Purchaser's modification of the System or any
component thereof; (iii) for any claim of infringement based on
Purchaser's use of the System in conjunction with any product or
software not furnished by Supplier or for a purpose not specified in the
DSOWs; or (iv) in the event the violation of such third party rights
were due to directions by Purchaser to adopt specific hardware or
software items or configurations that had not been proposed by the
Supplier to meet the requirements of the DSOWs. In assuming the defense
of such claim(s) or suit(s) Purchaser shall have control thereof and
Supplier shall provide Purchaser with the assistance, information, and
authority necessary to perform its obligations under this Section. The
Infringement Indemnitee(s) shall be kept fully informed as to the
progress thereof and have the right to confer about and give advice and
assistance regarding the same.
20.3 Consistent with the scope of Supplier's obligations as set forth in
Section 20.1, in the event that (a) there is an adjudication that the
System or any component or its use constitutes infringement, or (b) the
use or sale of any such System or component is enjoined. Supplier shall
or as soon as possible and in any event within thirty (30) days from the
occurrence of any of the aforestated events, at its option and expense
either:
(i) Procure for the Purchaser the right to continue using the
System;
(ii) Replace the System or infringing components with
non-infringing ones providing service equal to that
contracted for hereunder; or
(iii) Modify the System or infringing components thereof so
that they become non-infringing while providing service equal
to that contracted for hereunder.
36
20.4 Supplier's obligations under Section 20.3 shall be in addition to those
under Section 20.1 but together constitute Supplier's entire liability
and Purchaser's exclusive remedy for infringement of any Intellectual
Property Rights.
21. FITNESS FOR DUTY
21.1 Supplier and its Subcontractor personnel on the Jobsite shall:
(a) report for work in a manner fit to do their job;
(b) not be under the influence of or in possession of any
alcoholic beverages or of any controlled substance (except
a controlled substance as prescribed by a physician so
long as the performance or safety of the Work is not
affected thereby); and
(c) not have been convicted of any serious criminal offense
which may have an adverse impact on Purchaser.
21.2 Searches by Purchaser's authorized representatives may be made of
lockers, storage areas, vehicles, persons or personal effects on
Purchaser's-owned or leased property at various times without
prior announcement. Such facility inspections may be conducted
using detection dog teams to search work areas and other common
areas in order to detect evidence of unlawful drug use or other
prohibited items (pyrotechnics, explosives, firearms, weapons, or
facsimiles thereof, alcohol and illegal drugs). Prohibited Items
must not be brought onto or kept on such property.
21.3 Supplier shall (i) advise its personnel of these requirements
before they enter on the Jobsite or System Premises, as
appropriate, (ii) notify Purchaser of any violation of these
requirements, and (iii) unless the Parties otherwise agree,
immediately remove from the Jobsite or System Premises, as
appropriate, any person determined to be in violation of these
requirements. Supplier shall impose these requirements on its
Subcontractors. The aforestated requirements apply solely to
Jobsites and System Premises, as appropriate, and shall not be
construed to reflect the employment or contractual relationships
of Supplier, its employees, agents or Subcontractors.
22. INDEMNITY
22.1 Supplier shall, at its own cost, defend, indemnify and save
harmless Purchaser, and its officers, agents, employees, and
assignors, assignees, and successors in interest ("Indemnified
Parties") from and against any and all liability, damages,
losses, claims, demands, actions, causes of action, costs
including attorney's fees and expenses, or any of them, resulting
from the death or
37
injury to any person or damage to or losses of any property arising out
of, and during, the Supplier's performance except to the extent caused
by the negligence or willful misconduct of such Indemnified Parties.
22.2 Supplier shall save harmless Purchaser, its assignees and successors in
interest for any and all damages, costs and expenses (including property
replacement costs) arising from damage to or loss of Purchaser's
property (which for purposes of this Section 22.2 shall include but not
be limited to the System, the System Premises and any equipment on the
System Premises) arising out of and during the Supplier's performance of
the Contract, except to the extent caused by the negligence or willful
misconduct of Purchaser.
22.3 The indemnities set forth in this Section 22 shall not be limited by the
insurance requirements set forth in Section 23.
22.4 Purchaser shall, at its own cost, defend, indemnify and save harmless
Supplier, and its officers, agents, employees, assignors, assignees, and
successors in interest ("Indemnified Parties") from and against any and
all liability, damages, losses, claims, demands, actions, causes of
action, costs including attorney's fees and expenses, or any of them,
resulting from the death or injury to any person or damage to or losses
of any property arising out of or in connection with the Purchaser's
performance, or Purchaser's failure of performance of the Contract,
however caused, except to the extent caused by the negligence or willful
misconduct of such Indemnified Parties.
22.5 Supplier's indemnity obligations set forth in this Section 22 shall not
apply to liabilities, damages, losses, claims, demands, actions, causes
of action, costs, or any of them, arising from claims asserted by third
parties, based on Purchaser's use of the System, and Purchaser shall
indemnify and defend Supplier ("Indemnified Party") from and against any
and all such claims.
22.6 The indemnity obligations contained in this Section 22 are contingent
upon the Indemnified Parties giving the indemnifying party prompt
written notice of any such claim, full cooperation in the defense of any
such claim, and the right to defend against any such claim with counsel
of the indemnifying party's choosing and to settle or compromise any
such claims as the indemnifying party deems appropriate, subject to the
payment by the indemnifying party of any settlement or compromise
amount. Failure to do so shall relieve the indemnifying party of any
obligation or liability pursuant to this Section 22. Except to the
extent costs were reasonably and necessarily incurred prior to prompt
notice being given to the indemnifying party, the Indemnified Parties
shall not incur, nor shall the indemnifying party be liable for, any of
the Indemnified Parties' costs or expenses related to such claims,
without the consent of the indemnifying party. Indemnified Parties shall
have the right to
38
employ their own counsel for any such claim, but the fees and
expenses of such counsel shall be borne by the Indemnified
Parties.
23. INSURANCE
23.1 Supplier shall maintain for the Work, and shall require that each
Subcontractor performing any service at the Jobsite or System
Premises, as appropriate, (except material delivery only)
(hereinafter referred to as "Jobsite Subcontractor") maintain, at
all times during the Work and at its own expense, valid and
collectible insurance as required below. This insurance shall not
affect Supplier's liability under the indemnity provisions of
Section 22, and shall not be terminated, expire, nor be
materially altered without giving thirty (30) calendar days'
advance written notice to Purchaser.
23.1.1 As evidence that policies do in fact provide the required
coverages and limits of insurance listed below and that
such coverages and limits are in full force and effect.
Supplier shall furnish to Purchaser certificates of
insurance on forms reasonably acceptable to Purchaser.
Supplier shall require each Jobsite Subcontractor to
provide such certificates of insurance to Supplier.
Certificates shall be furnished and made available within
thirty (30) days after execution of the Contract or
subcontract but in any event prior to start of the Work.
23.1.2 Any other insurance carried by Purchaser, its officers,
agents, and employees which may be applicable shall be
deemed to be excess insurance and Supplier's insurance
shall be deemed primary for all purposes despite any
conflicting provision in Supplier's policies to the
contrary, solely to the extent of Supplier's indemnity
obligations under the Contract.
(a) Worker's Compensation with statutory limits, as
required by the state in which the Work is
performed, and Employer's Liability Insurance with
limits of not less than $1,000,000, Carriers
furnishing such insurance shall be required to
waive all rights of subrogation against Purchaser,
its officers, agents, employees and other
contractors and subcontractors.
(b) Commercial General Liability Insurance, written on
an "occurrence" basis, products/completed
operations, broad form property damage liability,
and contractual liability. Such insurance shall
bear a combined single limit per occurrence and
annual aggregate of not less than $5,000,000,
exclusive of defense costs as respects products and
completed operations, and a combined single limit
per occurrence and annual
39
aggregate of not less than $5,000,000, exclusive of defense costs as respects
all other coverages. Such insurance shall: (i) acknowledge Purchaser, its
officers, agents and employees as additional insureds as regards Supplier's acts
or omissions; (ii) be primary for all purposes; (iii) contain standard cross-
liability or severability of interest provisions; and (iv) contain no explosion,
collapse, or underground exclusions, to the extent of Supplier's indemnity
obligations under the Contract.
(c) If Supplier elects, with the concurrence of
Purchaser, to use a "claims made" form of
Commercial General Liability Insurance, then the
following additional requirements shall apply: (i)
the retroactive date of the policy shall be at
least one (1) day prior to the commencement of the
Work; and (ii) coverage for the Work shall be
maintained in effect for a period of not less than
two (2) years after completion of the Work, or a
supplemental extended reporting period of not less
than two (2) years after completion of the Work
shall be included. These requirements shall ensure
that such insurance shall enable Purchaser to
recover for claims reported at any time commencing
with the start of Work and continuing to a date not
less than two (2) years following completion of the
Work.
23.2 Each Party shall report immediately to Purchaser and confirm in
writing any injury, loss, or damage incurred by either Party or
Jobsite Subcontractors in connection with the Work, or its
receipt or notice of any claim by a third party, or of any
occurrence that might give rise to such claim.
23.3 If Supplier fails to comply with any of the provisions of this
Insurance Section, Supplier shall, at its own cost, defend,
indemnify and hold harmless Purchaser, its officers, agents,
employees, assignors and assigns, and predecessors and
successors in interest, from and against any and all liability,
damages, losses, claims, demands, actions, causes of action,
costs including attorney's fees and expenses, or any of them,
resulting from the death or injury to any person or damage to any
property to the extent that Purchaser would have been protected
had Supplier complied with all of the provisions of this section.
24. SAFETY NOTIFICATIONS
24.1 Supplier shall provide (obtain from its Subcontractors or other
appropriate affiliates) a Material Safety Data Sheet ("MSDS") for
each chemical product
40
(e.g., lubricants, solvents, paints, cleaners, inhibitors, etc.)
prior to its use at the Jobsite or System Premises, as
appropriate, and for any such product that may be contained in
any equipment furnished to Purchaser as a part of the Work.
24.1.1 Such MSDSs shall be maintained at the Jobsite or System
Premises, as appropriate, shall be subject to review by
Purchaser, and shall be turned over to Purchaser upon
acceptance of the Work and prior to Contractor's leaving
the Jobsite or System Premises, as appropriate.
24.1.2 A revised MSDS shall also be obtained whenever the
formulation or evaluation of a product is changed.
24.1.3 All MSDSs shall comply with the Federal (29 C.F.R.Section
1910.1200) and California (8 CACSection 5194) OSHA Hazard
Communication Standards without exception, and shall also
include, but not be limited to the following data: (If an
item is not applicable. Contractor shall so state.)
Date of MSDS(s) preparation.
Contract number(s).
Supplier's and manufacturer's catalog number for the
product and its container size and type.
All MSDS's shall be addressed to:
Mr. Eduardo Sugay
DE&S
5000 Executive Parkway - Suite 300
San Ramon, CA 94583
24.2 Container Labeling Requirements:
24.2.1 Prior to shipment. Supplier shall, and shall require its
Subcontractors to, label all containers of hazardous materials,
as defined by the State of California's and the Federal
Government's OSHA programs. Such labels shall include, as a
minimum:
1. The specific chemical identity of the substance. If the
product is a mixture, list the components present in
concentrations of 1% or more, or 0.1% or more if a
carcinogen.
41
2. The name and address of the manufacturer, importer or
other distributor.
3. Warning statements of the substance's Flammability,
Corrosivity, Toxicity, Reactivity, Primary Routes of
Bodily Entry and Target Organs affected.
4. Emergency and first aid procedures.
5. The potential for fire and/or explosion.
6, Any generally known precautions for safe use and handling
of the substance.
24.2.2 These labels shall be clearly legible and capable of
withstanding normal shipping and handling while maintaining
legibility of ALL information printed thereon.
24.2.3 Any container at the Jobsite or System Premises, as
appropriate, without said label, or with illegible information
thereon, is subject to rejection and, at the sole discretion of
Purchaser, may be removed from the Jobsite or System Premises,
as appropriate, and disposed of at an approved dump site at
Supplier's expense.
24.3 California's Toxic Enforcement Act Requirements: Supplier is hereby
warned that exposure to chemicals known to the State of California to
cause cancer, birth defects, or other reproductive harm may occur at
Purchaser's facilities. Upon request. Purchaser shall make available to
the Supplier, and its employees, a Material Safety Date Sheet (MSDS) for
such chemical exposures at the Jobsite or System Premises, as
appropriate. Supplier shall inform its Subcontractors of the above
information. From the time that Supplier enters Purchaser facilities or
begins Work until the time the Work is completed. Supplier shall, and
shall require its Subcontractors to, issue warnings to personnel
on the Jobsite or System Premises, as appropriate, the public, and
Purchaser's personnel about exposure to chemicals known to the State of
California to cause cancer, birth defects, or other reproductive harm.
Supplier shall warn Purchaser of any exposure which may continue after
Supplier has completed the Work. Such warnings may take the form of a
Material Safety Data Sheet.
42
25. LIMITATION OF LIABILITY
25.1 Purchaser, its agents, employees, contractors, subcontractors or
consultants shall not be liable for indirect, incidental,
punitive, special, or consequential damages, whether such damages
arise in contract, warranty, indemnity, tort (including
negligence), strict liability in tort or otherwise, including,
but not limited to, lost profits, and damages arising out of
commitments to contractors, or personal service contracts.
25.2 Supplier, its agents, employees, subcontractors, suppliers, or
licensors shall not be liable for any other indirect, incidental,
special or consequential damages of any nature or kind due to any
cause whatsoever, whether arising in contract, warranty,
indemnity, tort (including negligence), strict liability in tort
or otherwise including but not limited to loss of revenue or
profit, loss of use, loss of power, damages suffered by
Purchaser, any System User or any customer of the foregoing for
service interruptions due to the marketing, sale, transmission
of, or failure to market, sell or transmit, electricity, or for
costs of capital or costs of replacement power.
25.3
25.3.1 Stage I: For Stage I work, notwithstanding anything to the
contrary herein. Supplier's, its agents', employees',
subcontractors, suppliers' and licensor's cumulative
liability hereunder, on any and all claims, for any loss
or damage arising out of, connected with, or resulting
from this Contract, or from the performance or breach
thereof, shall be limited to greater of (i) $10,000,000 or
(ii) the portion of the Contract Price actually paid
solely for Stage I Work up to one- hundred percent (100%)
of the Contract Price for Stage I Work.
25.3.2 Stage II: For Stage II Work, notwithstanding anything to
the contrary herein. Supplier's, it agents', employees',
subcontractors' suppliers' and licensors' cumulative
liability hereunder, on any and all claims, for any loss
or damage arising out of, connected with or resulting from
this Contract, or from the performance or breach thereof,
shall be limited to the greater of (i) $1,500,000 or (ii)
the portion of the Contract Price actually paid solely for
Stage II Work up to one-hundred percent (100%) of the
amount of the Contract Price paid for Stage II Work.
25.4 In no event shall Supplier, its agents, employees.
Subcontractors, suppliers or licensors be liable for preexisting
conditions, delays, curtailment of plant operations, process
failure, pollution or environmental damage or fines levied
43
by regulatory agencies as a result of pollution, occupational disease or toxic
torts.
26. DISPUTES
26.1 Generally: Any dispute pertaining to the Contract, which cannot be
resolved between the SR and the PR shall be referred to Purchaser and
the Supplier for resolution. If the Parties cannot reach an agreement
within a reasonable period of time, the dispute shall be resolved as
provided in Section 26.2. Pending resolution of a dispute. Supplier
shall continue to perform the Work as directed by the PR and Purchaser
shall continue to make payments for the undisputed items as set forth
in the Contract.
26.2 Negotiations: The Parties shall attempt in good faith to resolve any
dispute arising out of, or relating to, this Contract promptly by
negotiations between an officer of Purchaser or his or her designated
representative and an officer or executive of similar authority
designated by Supplier. Either Party may give the other party written
notice of any dispute. Within twenty (20) days after delivery of said
notice, the designated persons shall meet at a mutually acceptable time
and place, and thereafter as often as they reasonably deem necessary to
exchange information and to attempt to resolve the dispute. If the
matter has not been resolved within thirty (30) days of the first
meeting, either Party may initiate a mediation of the controversy.
26.2.1 All negotiations and any mediation conducted pursuant to this
clause are confidential and shall be treated as compromise and
settlement negotiations, to which Section 1152.5 of the
California Evidence Code shall apply, and Section 1152.5 is
incorporated herein by reference.
26.2.2 Notwithstanding the foregoing provisions, a Party may seek a
preliminary injunction or other provisional judicial
remedy if in its judgment such action is necessary to avoid
irreparable damage or to preserve the status quo.
26.2.3 Each Party is required to continue to perform its obligations
under this Contract pending final resolution of any dispute
arising out of or relating to this Contract.
26.3 Resolution of Disputes Through Arbitration
26.3.1 Any dispute arising between the Parties concerning contract
terms or conditions including, but not limited to,
specifications, performance criteria or pricing, or performance
thereof, arising under or relating
44
to the performance of this Contract which dispute cannot be settled by
the Parties within a reasonable time, not to exceed thirty (30) days
after the meeting described in Sections 26.1 or 26.2 above, may be
submitted by either Party to binding arbitration.
26.3.2 All disputes to be arbitrated shall be submitted to and decided by a
board of three arbitrators, one to be appointed by Purchaser and one by
Supplier, provided that both such arbitrators shall be professionals in
the technical area in dispute; and the two arbitrators so appointed
shall appoint a third arbitrator, who shall be an attorney experienced
in the resolution of software systems disputes. If either Party shall
fail or refuse to appoint an arbitrator within thirty (30) days after
written notice has been given to it by the other Party naming the
tatter's arbitrator, the Party giving such notice shall have the right
to request the Presiding Judge of the Superior Court of the State of
California in and for the City and County of Sacramento to appoint an
arbitrator for the other Party so in default. If the two arbitrators
thus chosen shall be unable to agree upon the third arbitrator, such
arbitrator shall be appointed, upon application of either Party, by the
Presiding Judge of the Superior Court of the State of California in and
for the City and County of Sacramento. The arbitration will be conducted
in accordance with the procedures of this Section 26.3.2 and the
Commercial Arbitration Rules of the American Arbitration Association
(the "AAA Rules"), In the event of a conflict, the provisions of this
Contract shall control. Any issue concerning the extent to which any
dispute is subject to arbitration, or concerning the applicability,
interpretation or enforceability of these procedures, including any
contention that all or part of these procedures are invalid or
unenforceable, shall be governed by the Federal Arbitration Act and
resolved by the arbitrators. No potential arbitrator may serve on the
panel unless he or she has agreed to be bound by these procedures. The
arbitrators shall have no power to award (i) damages inconsistent with
the Contract or (ii) punitive damages or any other damages not measured
by the prevailing party's actual damages unless expressly provided for
in the Contract. In no event, even if any other portion of these
provisions is held to be invalid or unenforceable, shall the arbitrators
have power to make an award or impose a remedy that could not be made or
imposed by a court deciding the matter in the same jurisdiction. No
discovery shall be permitted in connection with the arbitration unless
it is expressly authorized by the arbitration panel upon a showing of
substantial need by the party seeking discovery. All aspects of the
arbitration shall be treated as confidential. Neither of the parties nor
the arbitrators may disclose the existence, content or results of the
45
arbitration, except as necessary to comply with legal or
regulatory requirements. Before making any such
disclosure, a party shall give written notice to all
other parties and shall afford such parties a reasonable
opportunity to protect their interests. The decision of
a majority of the arbitrators, after a hearing at which
both Parties shall have an opportunity to be heard and
to introduce evidence, shall be binding upon the Parties
hereto. Any award by such an arbitral proceeding shall
be binding on both Parties and judgment thereon may be
entered in any court of competent jurisdiction.
26.3.3 The cost of the arbitrator appointed by Purchaser shall be
bome by Purchaser; the cost of the arbitrator appointed by
Supplier shall be bome by Supplier; and the cost of the
third arbitrator and any attendant costs of arbitration
shall be bome equally by Purchaser and Supplier. Except as
otherwise specifically provided in this Section, any
arbitration shall be subject to the provisions of Title 9
of Part 3 of the Code of Civil Procedure of the State of
California. Each Party shall bear its own attorneys' fees
and other expenses in connection with any such
arbitration.
26.4 Jurisdiction. Choice of Litigation Location: Any suit or action
permitted to be brought between the Parties pursuant to the
provisions of this Contract shall be litigated only in, to the
extent permitted by law, the jurisdiction of any state or federal
court sitting in the State of California and the parties
unequivocably agree that all claims in respect of such action or
proceeding may be heard and determined in such court.
27. TERMINATION AT WILL
27.1 Purchaser may, at any time, terminate for convenience (a
"Termination at Will") of Purchaser the Contract, the Work, or
any portion of the Work, by written notice to Supplier. Such
notice shall be confirmed by a Change Order.
27.2 Upon receipt of such notice of Termination at Will, Supplier
shall stop performance of the terminated Work and take action as
directed by Purchaser to carry out such termination.
27.3 In the event of a Termination at Will, Purchaser shall pay to
Supplier (i) the payments due for Work completed and for costs
incurred by Supplier for Work in progress, including overhead and
reasonable profit on such amounts; (ii) all costs reasonably
incurred by Supplier in carrying out such Termination at Will,
and (iii) all costs reasonably incurred by Supplier in the
deacti- vation and redeployment of resources that had been
committed to the Work,
46
less any amounts for salvage or credit for Supplier's use of any
materials or equipment purchased or manufactured prior to
termination, and for Supplier's stock items. Supplier shall
furnish reasonably sufficient supporting data for any claims
under this section, including the supporting data of its Major
Contractors corresponding to the foregoing cost categories.
27.4 Purchaser shall take possession of and title to any System
components or materials that have been fabricated or procured,
and shall receive a license (in accordance with the provisions of
Section 15) to any Licensed Software to the extent included in
the termination payment.
27.5 The provisions of this Section 27 shall be Supplier's sole remedy
for Termination at Will of the Contract or the Work or any
portion thereof.
27.6 Any termination under this Section 27 shall be without prejudice
to any other rights of either Party which may have accrued prior
to such termination.
28. DEFAULTS AND TERMINATION FOR CAUSE
28.1 If Supplier: (i) fails to perform any of its material obligations
under the Contract; (ii) fails to give Purchaser adequate
assurance of contract-compliant performance within fifteen (15)
days after written demand by Purchaser when reasonable grounds
arise for insecurity that contract provisions and deadlines will
be met; (iii) fails to address a failure of performance
immediately or cure a failure of performance within thirty (30)
calendar days from Purchaser's notice of such failure; (iv) fails
to meet the Supplier Performance Milestones or the Work
Schedules, or to deliver the System or components thereof on or
before the specified delivery dates and such failure is
reasonably expected to adversely affect the completion of the
system in accord with the Work Schedule; or (v) if all of the
conditions of Acceptance have not been met on or before the date
specified in the DSOWs, then Purchaser may (a) withhold payment
of any further moneys which may be due Supplier until the default
is cured, if a cure period is allowed by Purchaser, and/or (b)
declare Supplier to be in default of the Contract by notice to
Supplier in writing; and Purchaser shall in either case be
entitled to terminate the Contract for cause (a "Termination for
Cause"), in whole or in part. Any termination pursuant to this
Section 28 shall not be deemed a Termination at Will within the
meaning of Section 27; except that a regulatory or legislative
action which has the effect of altering the Work Schedule for, or
obviates the need for continuation of, the Contract shall be
deemed a Termination at Will. Purchaser shall be entitled to
damages and costs as provided by law. In no event shall Purchaser
be liable for lost or anticipated profits, for overhead costs, or
for any other charges or costs arising out of Purchaser's
Termination for Cause of the Contract or any portion thereof.
47
28.2 In the event a notice of Termination for Cause has been delivered by
Purchaser pursuant to Section 28.1, Supplier shall stop the Work (or the
portion thereof terminated by Purchaser) and return all data pertaining
to the terminated Work provided by Purchaser. Purchaser may, consistent
with Purchaser's obligation to mitigate its damages, require Supplier to
proceed as follows:
28.2.1 Supplier shall, upon payment in full for all parts of the System
which have been completed, deliver to Purchaser all completed
portions of the System and Documentation therefor, including the
Licensed Software, and deliver to Purchaser all Licensed
Software. In such event Purchaser shall have the right to have
the System completed by others and to use the Licensed Software
for that purpose, and any additional cost associated with the
completion shall be reimbursed by the Supplier together with
damages and costs provided by law; or
28.2.2 Supplier shall remove the System or parts thereof as applicable
at Supplier's expense, and shall refund to Purchaser all payments
made by Purchaser to Supplier relating to the terminated Work.
The appropriate refund shall be paid by Supplier to Purchaser,
with interest accrued and compounded daily at a rate of two
percent (2%) above the reference rate charged by the Bank of
America, NT&SA, San Francisco California, on the first day of
each month for that month or portion thereof. Full refund shall
be paid within the thirty (30) consecutive calendar days
immediately following the date of the written notice of
termination from Purchaser, with interest accrued from the date
that the payment was made by Purchaser to Supplier.
28.3 Liquidated Damages:
28.3.1 In the event the Stage I System is not ready to be put in service
on or before January 1, 1998, then the Purchaser shall have the
right to collect from Supplier as liquidated damages the sum of
$40,000 per day for each day until the Stage System is ready to
be put in service, but not more than $2,400,000. The collection
of such liquidated damages shall be Purchaser's exclusive remedy,
and Supplier's sole liability, for damages for late completion of
the Stage I System.
28.3.2 In the event the Stage II System is not ready to be put in
service on or before January 1, 1999, then the Purchaser shall
have the right to collect from Supplier liquidated damages in a
sum to be agreed by
48
the Parties and stated in the Stage II DSOWs. The collection of such liquidated
damages shall be Purchaser's exclusive remedy, and Supplier's sole liability,
for damages for late completion of the Stage I System.
29. WAIVER
29.1 None of the provisions of the Contract shall be considered waived
by either Party unless such waiver is specifically stated in
writing, and signed by the authorized representative of the Party
waiving the provision(s).
30. ASSIGNMENT
30.1 Subject to Section 30.4 of the Contract neither Party shall
assign the Contract or any part thereof or interest therein,
without the prior written consent of the other Party, and any
assignment without such consent shall be void and of no effect.
ABB shall provide that Ernst & Young LLP a subcontractor to ABB
shall not assign its subcontract without the prior written
consent of Purchaser.
30.2 Supplier shall notify Purchaser prior to the sale or transfer of
control of its business to another entity. Neither ABB or Perbt
Systems may assign, sell or otherwise alienate or reduce its
interest in Supplier without the prior express written consent of
Purchaser. Supplier shall notify Purchaser prior to the sale or
transfer of control of Ernst & Young LLP to another entity.
30.3 If Supplier enters into any voluntary or involuntary
receivership, bankruptcy or insolvency proceedings, or
voluntarily leaves the business of providing the System,
Purchaser shall have the right to terminate the Contract under
the default provisions set forth in Section 28.
30.4 Purchaser reserves the right to assign and delegate its entire
rights, obligations and interest, under this Contract, or any
portion thereof, to a successor entity, including but not limited
to the ISO contemplated by the Restructuring Decision, as
may be required by the FERC or CPUC. Such an assignment or
delegation shall become effective upon notice thereof to the
Supplier.
30.5 Upon any valid assignment or delegation hereunder, the assignee
shall thereby assume all rights and obligations of the assignor
and the assignor shall be relieved of all obligations to
supplier, including those occurring before the assignment.
49
31. CONFLICT OF INTEREST/BUSINESS ETHICS
31.1 No Existing Conflicts Of Interest: Supplier represents and
warrants that it: (i) has no existing business or other
relationship, contract or employment which could result in a
material conflict with the best interests of Purchaser or in any
way materially compromise the Work to be performed under the
Contract, (ii) will perform the Work in accordance with the
Contract without regard to any relationship or obligation that
Supplier or any Subcontractor may have with any third party not a
party hereto; and (iii) will disclose in Annex H any such
relationships or obligations which may reasonably present the
appearance of such a conflict of interest. Examples of such
conflicts include, but are not limited to, having any direct or
indirect affiliation with, or ownership interest in or by, any
other Party or the Trustee or any member or member-representation
of any advisory committee or advisor of the Trustee.
31.2 Reasonable Care: Supplier shall exercise reasonable care and
diligence to prevent any actions or conditions which could result
in a conflict of interest within the meaning of Section 31.1.
31.3 Other Employment: During the term of the Contract, Supplier,
Major Subcontractors and Ernst & Young LLP, a Subcontractor, will
not accept any employment or engage in any work which creates a
material conflict of interest with Purchaser or in any way
materially compromises the Work to be performed under the
Contract, within the context of their policies and rules relating
to business ethics.
31.4 Gifts: Supplier, its employees, agents or Subcontractors shall
not offer or cause to be offered gifts, entertainment, payments,
loans or other services, benefits or considerations of more than
a nominal value to Purchaser, the Trustee or any advisor or
advisory committee to the Trustee, or to any of their employees,
families, vendors, or subcontractors.
31.5 Accurate Documentation: All financial statements, reports,
billings, and other documents rendered shall properly reflect the
facts about all activities and transactions handled for the
account of Purchaser.
31.6 Notification: Supplier shall immediately notify Purchaser of any
and all violations of this Section 31 upon becoming aware of such
violation.
31.7 Availability Of Information: Purchaser's duly authorized
representatives shall have, during the term of the Contract and
for three (3) years thereafter, access at all reasonable times to
all of the Supplier's and its Subcontractors' personnel, accounts
and records of all description, including but not limited to
computer files, directly relating to this Contract for the
purpose of verifying
50
compliance with these Conflict of Interest/Business Ethics
provisions. The Consultant and its Subcontractors shall preserve
all such accounts and records for a period of three (3) years
after the term of the Contract. Purchaser's duly authorized
representatives shall have the right to reproduce any such
accounts and records for the purpose as stated in the preceding
sentence.
31.8 Subcontractors: Supplier shall include the necessary provisions
in its Subcontracts to ensure that its Subcontractors comply with
this Section 31.
31.9 No Hire: During the term of the Contract and for twelve (12)
months thereafter, unless otherwise agreed to in writing prior to
the offer of employment and only to the extent permitted under
applicable law, each Party agrees that no employee of it or any
of its Subcontractors who performs part of the Work will offer
employment with such Party or any of its subsidiaries to any
personnel of the other Party or its Subcontractors who provide
services related to the Contract within the preceding twelve (12)
months without the prior consent of the other Party.
32. EQUAL OPPORTUNITY LAWS
FEDERAL REGULATIONS: During the performance of the Contract and to the
extent they may be applicable to the Contract, the Supplier agrees to
(i) comply with all laws, orders, and regulations included by summary or
reference in the following Sections and (ii) require flowdown of all
such sections in all subcontracts as applicable:
32.1 EQUAL EMPLOYMENT OPPORTUNITY-EXECUTIVE ORDER NO. 11246, 41 CFR
PART 60-1: (Contracts of $10,000 or more) Provides that Supplier
will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, or national
origin and further that Supplier shall take affirmative action to
ensure that applicant and employees are treated without regard to
their race, color, religion, sex, or national origin.
32.2 CERTIFICATION OF NONSEGREGATED FACILITIES-41 CFR 60-1.8:
(Contracts of $10,000 or more) Supplier hereby certifies that
Supplier will not maintain or provide segregated facilities for
its employees and will not permit its employees to perform their
services at any location under Supplier's control, where
segregated facilities are maintained.
32.3 CONSTRUCTION CONTRACTORS-AFFIRMATIVE ACTION REQUIREMENTS-41 CFR
Part 60-4: (Contracts exceeding $10,000) Establishes procedures
for soliciting and awarding federal or federally assisted
construction contracts.
51
32.4 LISTING OF EMPLOYMENT OPENINGS-Executive Order 11701: (Contracts
of $10,000 or more) Supplier will list employment openings with
the Employment Development Department in accordance with the
Vietnam Era Veterans Readjustment Assistance Act of 1974 and
Executive Order 11701. The affirmative action clause set forth in
41 CFR 60-250.4 is incorporated herein by reference.
32.5 EMPLOYMENT OF THE HANDICAPPED-Rehabilitation Act of 1973, 41 CFR
Part 60-741: (Contracts of $2,500 or more) The affirmative action
clause and the regulations contained in 41 CFR 60-741.4, and
Section 504 of the Rehabilitation Act of 1973, as amended (29
U.S.C. Section 794), which prohibits discrimination on the basis
of handicaps, are incorporated by reference in this Contract.
32.6 FILING PROGRAM SUMMARIES AND PREPARING AFFIRMATIVE ACTION
PLANS-Executive Order 11246, 41 CFR Part 60-2: (Contracts of
$50,000 or more) If the value of the Contract is $50,000 or more
and the Supplier has 50 or more employees, the Supplier agrees to
file appropriate affirmative action program summaries in
accordance with existing regulations and develop and maintain a
current written affirmative action compliance program at each of
its establishments.
32.7 VIETNAM ERA VETERANS READJUSTMENT ASSISTANCE-Act of 1974, Title
41, Chapter 60, Part 250: (Contracts of $10,000 or more) The
affirmative action clause and the regulations pertaining to the
employment of disabled veterans and veterans of the Vietnam era
are incorporated by reference in the Contract.
32.8 AMERICANS WITH DISABILITIES ACT-42 U.S.C. Section 12101, et seq.:
Supplier agrees that, to the extent it may be applicable to the
Contract, Supplier shall comply with the Americans with
Disabilities Act.
32.9 Purchaser's POLICY: It is Purchaser's policy that Women,
Minority, and Disabled Veteran Business Enterprises (WMDVBEs)
shall have the maximum practicable opportunity to participate in
providing the products and services Purchaser purchases.
32.10 For all Purchaser contracts, the Supplier agrees to comply, and
to require all Subcontractors and sub-subcontractors to comply,
with Purchaser's Equal Opportunity Purchasing Program (EOPP)
policy, as set forth in Annex I hereto. The Supplier shall
provide to each prospective Subcontractor a copy of Annex I.
52
32.11 In addition, for contracts exceeding $500,000 (or $1 Million for
construction contracts), the Supplier must comply with the Policy
Regarding Utilization of Small Business Concerns and Small
Disadvantaged Business Concerns, as described in Annex J hereto.
The Subcontracting Plan for these contracts must include
provisions for implementing the terms prescribed in Annex J.
32.12 Small Business, and Small Disadvantaged Business Subcontracting
Plans are not required for small business contractors, personal
service contracts, contracts that will be performed entirely
outside of the United States and its territories, or
modifications to existing contracts which do not contain
subcontracting potential.
32.13 For all Purchaser contracts, the Supplier shall act in accordance
with the Subcontracting Plan in the performance of the Work and
in the award of all subcontracts.
33. INJURY AND ILLNESS PREVENTION PROGRAM
33.1 In the performance of the Work under this Contract, Supplier
acknowledges that it has an effective Injury and Illness
Prevention Program which meets the requirements of all applicable
laws and regulations, including but not limited to Section 6401.7
of the California Labor Code. Supplier shall ensure that any
Subcontractor hired by Supplier to perform any portion of the
Work under the Contract shall also have an effective Injury and
Illness Prevention Program. If the Supplier has any employees in
California, even if those employees do not perform Work under the
Contract, the attached Compliance Certificate (Annex K) shall be
executed by the person with the authority and responsibility for
implementing and administering such Injury and Illness and
Prevention Program.
34. SEVERABILITY
34.1 Should any section, provision or portion of the Contract be held
to be invalid, illegal or void, by a court of proper jurisdiction
then, and in such event, any such section, provision or portion
shall be deleted from the Contract and the Contract shall be read
as though such invalid, illegal or void section, provision or
portion was never included herein, and the remainder of the
Contract shall nevertheless subsist and continue in force and
effect until such time as the remaining provisions shall be
modified or void, as agreed to by the Parties.
53
35. NOTICES
35.1 Any invoice notice, request, demand, claim or other communication
related to the Contract shall be (i) in writing and delivered by
hand or by telecopier, certified mail (postage prepaid) or
overnight courier to the other party's representative at its
address stated in the Contract, (ii) effective when received,
(iii) identified by the Contract number, and (iv) signed by the
notifying Party's representative.
To Purchaser: Independent System Operator Restructuring Trust
Attn: Eduardo Sugay
DE&S
5000 Executive Parkway - Suite 300
San Ramon, CA 94583
With a copy to: Skadden, Arps, Slate, Meagher & Flom LLP
Attn: Martin R. Hoffman "
1440 New York Avenue, N.W.
Washington, DC 20005-2111
To Supplier: ISO Alliance, LLC
c/o PSC Energy Corporation
633 West Fifth Street
Suite 3829
Los Angeles, California 90071
With a copy to: ABB Power T&D Company Inc.
ABB Systems Control Division
Attn: Ralph Masiello
2550 Walsh Avenue
Santa Clara, California 95051
Manta & Welge
Attn: John R. Attanasio
2005 Market Street
Philadelphia, Pennsylvania 19103
Perot Systems Corporation
Attn: General Counsel
12377 Merit Drive
Dallas, Texas 75251
35.2 Either Party may change the above information by giving notice of each
change to the other Party.
54
36. GOVERNING LAW
36.1 The Contract shall be interpreted, governed and construed under
the laws of the State of California as if executed and to be
performed wholly within the State of California.
37. SECTION HEADINGS
37.1 Section headings appearing in the Contract are for convenience
only and shall not be construed as interpretations of text.
38. SURVIVAL
38.1 Notwithstanding completion or termination of the Work or of the
Contract, the Parties shall continue to be bound by the
provisions of the Contract which by their nature are intended to
and shall survive such completion or termination.
39. ENTIRE AGREEMENT
39.1 The Contract contains the entire agreement and understanding
between the Parties and merges and supersedes all prior
representations and discussions pertaining to the Contract,
including Supplier's proposal (except as specifically
included). Any changes, exceptions or different terms and
conditions proposed by Supplier, or contained in Supplier's
acknowledgment of the Contract, are hereby rejected and shall
have no force or effect unless expressly stated in the
Contract or incorporated by a Change Order.
39.2 No significance shall attach to any differences between any terms
in the Contract and any analogous terms in any other contract
between Purchaser and Supplier or between Purchaser and any of
Supplier's members. No such differences shall be used to
interpret, construe, or explain any term of the Contract or any
other such contract.
40. REPRESENTATIONS
40.1 Supplier Representations. Supplier hereby represents, warrants
and covenants to Purchaser that:
(a) it has the power and authority to enter into this
Agreement and fully to perform its obligations hereunder;
and
55
(b) all necessary organizational action to approve the execution,
delivery and performance of this Agreement has been duly taken by
it, and this Agreement constitutes a valid and binding Agreement
of such Party enforceable against it in accordance with its
terms.
40.2 Purchaser Representations. Purchaser hereby represents, warrants and
covenants to Supplier that:
(a) it has the power and authority to enter into this Agreement and
fully to perform its obligations hereunder;
(b) all necessary organizational action to approve the execution,
delivery and performance of this Agreement has been duly taken by
it, and this Agreement constitutes a valid and binding Agreement
of such Party enforceable against it in accordance with its
terms; and
(c) neither the execution and the delivery of this Agreement nor the
consummation of the transactions contemplated hereby will violate
any provision of the charter or bylaws of Purchaser.
IN WITNESS WHEREOF the Parties have caused-this Contract to be signed by their
authorized officers or representatives as of this tU-of March, 1997.
INDEPENDENT SYSTEM OPERATOR RESTRUCTURING TRUST
/s/
S. David Freeman, Not in his personal
capacity but as Trustee for the
Independent System Operator
Restructuring Trust
ISO ALLIANCE LLC
/s/
By: Perot Systems corporation By:
Its: Manager A---Member
56