Pacific Gas and Electric Company
[LOGO] ENERGY SERVICE PROVIDER (ESP) SERVICE
AGREEMENT
This Energy Service Provider (ESP) Service Agreement (this "Agreement") is made
and entered into as of this 9th day of May, 1998, by and between "Full Power
Corporation" ("ESP"), a corporation organized and existing under the laws of the
state of Ohio, and "Pacific Gas and Electric Company" ("PG&E"), a corporation
organized and existing under the laws of the state of California. From time to
time, ESP and PG&E shall be individually referred to herein as a "Party" and
collectively as the "Parties."
SECTION 1: GENERAL DESCRIPTION OF AGREEMENT
1.1 This Agreement is a legally binding contract. The Parties named in
this Agreement are bound by the terms set forth herein and
otherwise incorporated herein by reference. This Agreement shall
govern the business relationship between the Parties hereto by
which ESP shall offer electrical energy services, including, but
not limited to, account maintenance and billing services,
electrical meter installation, meter reading services and/or any
other services that may be approved by the California Public
Utilities Commission ("CPUC") in Direct Access transactions with
customers in PG&E's service territory ("Direct Access Services").
Each Party, by agreeing to undertake specific activities and
responsibilities for or on behalf of customers, acknowledges that
each Party shall relieve and discharge the other Party of the
responsibility for said activities and responsibilities with
respect to those customers. Except where explicitly defined herein
(including Attachment A hereto) the definitions controlling this
Agreement are contained in PG&E's applicable rules or in the
relevant direct access tariff.
1.2 The form of this Agreement has been developed as part of the CPUC
regulatory process, was intended to conform to CPUC directions,
was filed and approved by the CPUC for use between PG&E and ESPs
and may not be waived, altered, amended or modified, except as
provided herein or in the relevant direct access tariff, or as may
otherwise be authorized by the CPUC.
SECTION 2: REPRESENTATIONS
2.1 Each Party represents that it is and shall remain in compliance
with all applicable laws and tariffs, including applicable CPUC
requirements.
2.2 Each person executing this Agreement for the respective Parties
expressly represents and warrants that he or she has authority to
bind the entity on whose behalf this Agreement is executed.
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2.3 Each Party represents that (a) it has the full power and authority
to execute and deliver this Agreement and to perform its terms and
conditions; (b) the execution, delivery and performance of this
Agreement have been duly authorized by all necessary corporate or
other action by such Party; and (c) this agreement constitutes
such Party's legal, valid and binding obligation, enforceable
against such Party in accordance with its terms.
2.4 Each Party shall (a) exercise all reasonable care, diligence and
good faith in the performance of its duties pursuant to this
Agreement; and (b) carry out its duties in accordance with
applicable recognized professional standards in accordance with
the requirements of this Agreement.
SECTION 3: TERM OF SERVICE
The term of this Agreement shall commence on the date of execution
by both Parties hereto (the "Effective Date") and shall terminate
on the earlier of (a) the date ESP informs PG&E that it is no
longer operating as and ESP in PG&E's service territory; (b) the
earlier termination pursuant to Section 4 hereof; or (c) the
effective date of a new ESP Service Agreement between the Parties
hereto. Notwithstanding the Effective Date of this Agreement, the
ESP acknowledges that it may only offer Direct Access Services to
customers effective January 1, 1998, or such other date as may be
directed by the CPUC for commencement of such services by ESPs,
and only after it has complied with all provisions of this
Agreement and PG&E's applicable tariffs.
SECTION 4: EVENTS OF DEFAULT AND REMEDY FOR DEFAULT
4.1 An Event of Default under this Agreement shall include either
Party's material breach of any provision of this Agreement,
including those incorporated by reference herein, and failure to
cure such breach within thirty (30) calendar days of receipt of
written notice thereof from the non-defaulting Party; or such
other period as may be provided by this Agreement or PG&E's direct
access tariff.
4.2 In the event of such an Event of Default, the non-defaulting Party
shall be entitled (a) to exercise any and all remedies available
under PG&E's direct access tariff; (b) to the extent not
inconsistent with PG&E's direct access tariff, to exercise any and
all remedies provided for by law or in equity; and (c) in the
event of a material Event of Default, to terminate this Agreement
upon written notice to the other Party, which shall be effective
upon the receipt thereof.
4.3 Breach by any Party hereto of any provision of PG&E's direct
access tariff shall be governed by applicable provisions contained
therein and each Party will retain all rights granted thereunder.
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SECTION 5: BILLING, METERING AND PAYMENT
5.1 Billing options and metering services which are available to
ESP shall be as described in PG&E's direct access tariff, as
stated in PG&E's Electric Rule 22. Billing and metering
options applicable to a particular customer shall be designated
in the Direct Access Service Request submitted by the ESP for
such customer.
5.2 PG&E will xxxx and the ESP agrees to pay PG&E for all services
and products provided by PG&E in accordance with the terms and
conditions set forth in PG&E's direct access tariff, as stated
in PG&E's Electric Rule 22 and PG&E's rate schedules. Any
services provided by the ESP to PG&E shall be by separate
agreement between the Parties and are not a subject of this
Agreement.
SECTION 6: LIMITATION OF LIABILITY
Each Party's liability to the other Party for any loss, cost,
claim, injury, liability, or expense, including reasonable
attorneys' fees, relating to or arising from any act or
omission in its performance of this Agreement, shall be
limited to the amount of direct damage actually incurred,
except as provided for in this Section. In no event shall
either Party be liable to the other Party for any indirect,
special, consequential, or punitive damages of any kind
whatsoever, whether in contract, tort or strict liability,
except in the event of an action covered by the
indemnification provisions of Section 7 of this Agreement, in
which event this Section 6 shall not be applicable.
SECTION 7: INDEMNIFICATION
7.1 To the fullest extent permitted by law, and subject to the
limitations set forth in Section 6 of this Agreement, each
Party (the "Indemnifying Party") shall indemnify and hold
harmless the other Party, and its current and future direct
and indirect parent companies, affiliates and their
shareholders, officers, directors, employees, agents, servants
and assigns (collectively, the "Indemnified Party") and at the
Indemnified Party's option, the Indemnifying Party shall
defend the Indemnified Party from and against any and all
claims and/or liabilities for losses, expenses, damage to
property, injury to or death of any person, including, but not
limited to, the Indemnified Party's employees and its
affiliates' employees, subcontractors and subcontractors'
employees, or any other liability incurred by the Indemnified
Party, including reasonable expenses, legal and otherwise,
which shall include reasonable attorneys' fees, caused wholly
or in part by any negligent, grossly negligent or willful act
or omission by the Indemnifying Party, its officers,
directors, employees, agents or assigns arising out of this
Agreement, except to the extent caused wholly or in part by any
negligent, grossly negligent or willful act or omission of the
Indemnified Party.
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7.2 If any claim covered by Section 7.1 is brought against the
Indemnified Party, then the Indemnifying Party shall be
entitled to participate in, and unless in the opinion of
counsel for the Indemnified Party a conflict of interest
between the Parties may exist with respect to such claim, assume
the defense of such claim, with counsel reasonably acceptable to
the Indemnified Party. If the Indemnifying Party does not
assume the defense of the Indemnified Party, or if a conflict
precludes the Indemnifying Party from assuming the defense,
then the Indemnifying Party shall reimburse the Indemnified
Party on a monthly basis for the Indemnified Party's defense
through separate counsel of the Indemnified Party's choice.
Even if the Indemnifying Party assumes the defense of the
Indemnified Party with acceptable counsel, the Indemnified
Party, at its sole option, may participate in the defense, at
its own expense, with counsel of its own choice without
relieving the Indemnifying Party of any of its obligations
hereunder. In no event shall either Party be liable to the
other Party for any indirect, special, consequential, or
punitive damages of any kind whatsoever, whether in contract,
tort or strict liability.
7.3 The Indemnifying Party's obligation to indemnify under this
Section 7 shall survive termination of this Agreement, and
shall not be limited in any way by any limitation on the
amount or type of damages, compensation or benefits payable by
or for the Indemnifying Party under any statutory scheme,
including, without limitation, under any Workers Compensation
Acts, Disability Benefit Acts or other Employee Benefit Acts.
SECTION 8: ASSIGNMENT AND DELEGATION
8.1 Neither Party to this Agreement shall assign any of its rights
or obligations under this Agreement, except with the prior
written consent of the other Party, which consent shall not be
unreasonably withheld or delayed. No assignment of this
Agreement shall relieve the assigning Party of any of its
obligations under this Agreement until such obligations have
been assumed by the assignee. When duly assigned in
accordance with the foregoing, this Agreement shall be binding
upon and shall inure to the benefit of the assignee and the
assignor shall be relieved of its rights and obligations. Any
assignment in violation of this Section 8 shall be void.
8.2 Notwithstanding the provisions of this Section 8, either
Party may subcontract its duties under this Agreement to a
subcontractor, provided that the subcontracting Party shall
remain fully responsible as a principal and not as a guarantor
for performance of any subcontracted duties, shall serve as
the point of contact between its subcontractor and the other
Party, and shall provide the other Party with thirty (30)
calendar days' prior written notice of any such subcontracting,
which notice shall include such information about the
subcontractor as the other Party shall reasonably require, and
provided further that each Party may subcontract its obligation
to provide Metering or Meter Reading Services under this
Agreement only to subcontractors who have complied with all
certification or registration requirements described in
applicable law, CPUC rules and PG&E's
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direct access tariff. If either Party subcontracts any of its
duties hereunder, it shall cause its subcontractors to perform
in a manner which is in conformity with that Party's obligations
under this Agreement.
SECTION 9: INDEPENDENT CONTRACTORS
Each Party shall perform its obligations under this Agreement
(including any obligations performed by a Party's designees as
permitted under Section 8 of this Agreement) as an independent
contractor.
SECTION 10: ENTIRE AGREEMENT
This Agreement consists of, in its entirety, this Energy Service
Provider Service Agreement and all attachments hereto, all
Direct Access Service Requests submitted pursuant to this
Agreement and PG&E's direct access tariff. This Agreement
supersedes all other agreements or understandings, written or
oral, between the Parties related to the subject matter hereof.
This Agreement may be modified from time to time only by an
instrument in writing, signed by both Parties.
SECTION 11: NONDISCLOSURE
11.1 Neither Party may disclose any Confidential Information obtained
pursuant to this Agreement to any third party, including
affiliates of such Party, without the express prior written
consent of the other Party. As used herein, the term
"Confidential Information" shall include, but not be limited to,
all business, financial, and commercial information pertaining
to the Parties, customers of either or both Parties, suppliers
for either Party, personnel of either Party, any trade secrets,
and other information of a similar nature, whether written or in
intangible form that is marked proprietary or confidential with
the appropriate owner's name. Confidential information shall not
include information known to either Party prior to obtaining the
same from the other Party, information in the public domain, or
information obtained by a Party from a third party who did not,
directly or indirectly, receive the same from the other Party to
this Agreement or from a party who was under an obligation of
confidentiality to the other Party to this Agreement or
information developed by either Party independent of any
Confidential Information. The receiving Party shall use the
higher of the standard of care that the receiving Party uses to
preserve its own confidential information or a reasonable
standard of care to prevent unauthorized use or disclosure of
such Confidential Information. Each receiving Party shall, upon
termination of this Agreement or at any time upon the request of
the disclosing Party, promptly return or destroy all
Confidential Information of the disclosing Party then in its
possession.
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11.2 Notwithstanding the preceding, Confidential Information may be
disclosed to any governmental, judicial or regulatory authority
requiring such Confidential Information pursuant to any
applicable law, regulation, ruling, or order, provided that (a)
such Confidential Information is submitted under any applicable
provision, if any, for confidential treatment by such
governmental, judicial or regulatory authority; and (b) prior to
such disclosure, the other Party is given prompt notice of the
disclosure requirement so that it may take whatever action it
deems appropriate, including intervention in any proceeding and
the seeking of any injunction to prohibit such disclosure.
SECTION 12: ENFORCEABILITY
If any provision of this Agreement or the application thereof is
to any extent held invalid or unenforceable, the remainder of
this Agreement and the application thereof, other than those
provisions which have been held invalid or unenforceable, shall
not be affected and shall continue in full force and effect and
shall be enforceable to the fullest extent permitted by law or
in equity.
SECTION 13: NOTICES
13.1 Except as otherwise provided in this Agreement, any notices
under this Agreement shall be in writing and shall be effective
upon delivery if delivered by (a) hand; (b) U.S. Mail, first
class postage pre-paid, or (c) facsimile, with confirmation of
receipt to the Parties as follows:
IF THE NOTICE IS TO ESP:
Contact Name:
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Business Address:
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Facsimile:
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IF THE NOTICE IS TO PG&E:
CONTACT NAME: Director of ESP Relations
BUSINESS ADDRESS:
Account Services Department
Mail Code H 28 B
X.X. Xxx 000000
XXX XXXXXXXXX, XX 00000
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13.2 Each Party shall be entitled to specify as its proper address
any other address in the United States upon written notice to the
other Party.
13.3 Each Party shall designate on Attachment A the person(s) to be
contacted with respect to specific operational matters relating
to Direct Access service. Each Party shall be entitled to
specify any change to such person(s) upon written notice to the
other Party.
SECTION 14: TIME OF ESSENCE
The Parties expressly agree that time is of the essence for all
portions of this Agreement.
SECTION 15: DISPUTE RESOLUTION
15.1 The form of this Agreement has been filed with and approved by
the CPUC as part of PG&E's applicable tariffs. Except as
provided in Section 15.2 and 15.3, any dispute arising between
the Parties relating to interpretation of the provisions of this
Agreement or to the performance of PG&E's obligations hereunder
(including the performance of Billing Services, Metering
Services and MDMA Services by PG&E) shall be reduced to writing
and referred to the Parties' representatives identified on
Attachment A for resolution. Should such a dispute arise, the
parties shall be required to meet and confer in an effort to
resolve their dispute. Pending resolution, the Parties shall
proceed diligently with the performance of their respective
obligations under this Agreement, except if this Agreement has
been terminated under Section 4.2. If the Parties fail to reach
an agreement within a reasonable period of time, the matter
shall, upon demand of either Party, be submitted to resolution
before the CPUC in accordance with the CPUC's rules, regulations
and procedures applicable to resolution of such disputes.
15.2 Any dispute arising between the Parties relating to
interpretation of the provisions of this Agreement or to the
performance of the ESP's obligations hereunder (including the
performance of Billing Services, Metering Services and MDMA
Services by the ESP) shall be reduced to writing and referred to
the Parties' representatives identified on Attachment A for
resolution. Should such a dispute arise, the parties shall be
required to meet and confer in an effort to resolve their
dispute. Pending resolution, the Parties shall proceed
diligently with the performance of their respective obligations
under this Agreement, except if this Agreement has been
terminated under Section 4.2. If the Parties fail to reach an
agreement within a reasonable period of time, the parties may
mutually agree to pursue mediation or arbitration to resolve
such issues.
15.3 Notwithstanding the provisions of Paragraph 15.1 and 15.2 above:
(a) all disputes between the Parties relating to the payment by
the ESP of any PG&E fees or
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charges shall be subject to the provisions of PG&E's applicable
tariffs governing disputes over customer bills; (b) all disputes
between the Parties regarding Competition Transition Charges
payable by direct access customers or the ESP on behalf of such
customers shall be subject to the provisions of PG&E's
applicable tariffs; and (c) PG&E may pursue available remedies
for unauthorized electrical use by the ESP in a court of
competent jurisdiction.
15.4 If the dispute involves a request for damages, parties are
notified that the Commission has no authority to award damages.
To resolve such issues, the parties may mutually agree to pursue
mediation or arbitration to resolve such issues, or if no
agreement is reached, to pursue other legal remedies that are
available to the parties.
SECTION 16: APPLICABLE LAW AND VENUE
This Agreement shall be interpreted, governed by and construed
in accordance with the laws of the State of California, and
shall exclude any choice of law rules that direct the
application of the laws of another jurisdiction, irrespective of
the place of execution or of the order in which the signatures
of the parties are affixed or of the place or places of
performance. Except for matters and disputes with respect to
which the CPUC is the sole proper venue for dispute resolution
pursuant to applicable law or this Agreement, the federal and
state courts located in San Francisco County, California shall
constitute the sole proper venue for resolution of any matter or
dispute hereunder, and the Parties submit to the exclusive
jurisdiction of such courts with respect to such matters and
disputes.
SECTION 17: FORCE MAJEURE
Neither Party shall be liable for any delay or failure in the
performance of any part of this Agreement (other than
obligations to pay money) due to any event of force majeure or
other cause beyond its reasonable control, including but not
limited to, unusually severe weather, flood, fire, lightning,
epidemic, quarantine restriction, war, sabotage, act of a public
enemy, earthquake, insurrection, riot, civil disturbance,
strike, work stoppage caused by jurisdictional and similar
disputes, restraint by court order or public authority, or
action or non-action by or inability to obtain authorization or
approval from any governmental authority, or any combination of
these causes which by the exercise of due diligence and
foresight such Party could not reasonably have been expected to
avoid and which by the exercise of due diligence is unable to
overcome. It is agreed that upon the Party so affected giving
written notice and reasonably full particulars of such force
majeure to the other Party within a reasonable time after the
cause relied on, then the obligations of the Party, so far as
they are affected by the event of force majeure, shall be
suspended during the continuation of such inability and
circumstance and shall, so far as possible, be remedied with all
reasonable dispatch. In the event of force majeure, as described
herein, both Parties shall take all reasonable steps to comply
with this Agreement
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and PG&E's applicable tariffs despite occurrence of a force
majeure event.
SECTION 18: UNAUTHORIZED USE OF ENERGY (ENERGY THEFT)
18.1 The ESP represents and warrants that for each of its Customers,
and at all times during which it provides Direct Access services
as an Energy Service Provider, the ESP shall completely,
accurately, and in a timely manner account for each of its
Customer's loads with a duly authorized Scheduling Coordinator.
Load data not accounted for in this manner may provide grounds
for termination of this Agreement. For verification purposes
only, PG&E shall have complete access to the identity of the
Scheduling Coordinator and the load data provided to it by the
ESP. Such information is to remain confidential, and shall not
be disclosed to any unauthorized person.
18.2 PG&E shall notify the ESP immediately and the ESP shall notify
PG&E immediately of any suspected unauthorized energy use. The
Parties agree to preserve any evidence of unauthorized energy
use. Once unauthorized energy use is suspected, PG&E, in its
sole discretion, may take any or all of the actions permitted
under PG&E's applicable tariffs.
SECTION 19: NOT A JOINT VENTURE
Unless specifically stated in this Agreement to be otherwise,
the duties, obligations, and liabilities of the Parties are
intended to be several and not joint or collective. Nothing
contained in this Agreement shall ever be construed to create an
association, trust, partnership or joint venture or to impose a
trust or partnership duty, obligation, or liability on or with
regard to either Party. Each Party shall be liable individually
and severally for its own obligations under this Agreement.
SECTION 20: CONFLICTS BETWEEN THIS AGREEMENT AND PG&E'S DIRECT ACCESS TARIFF
Should a conflict exist or develop between the provisions of
this Agreement and PG&E's direct access tariff, as approved by
the CPUC, the provisions of PG&E's direct access tariff shall
prevail.
SECTION 21: AMENDMENTS OR MODIFICATIONS
21.1 Except as provided in Section 21.2, no amendment or modification
shall be made to this Agreement, in whole or in part, except by
an instrument in writing executed by authorized representatives
of the Parties, and no amendment or modification shall be made
by course of performance, course of dealing or usage of trade.
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21.2 This Agreement may be subject to such changes or modifications
as the CPUC may from time to time direct or necessitate in the
exercise of its jurisdiction, and the Parties may amend the
Agreement to conform to changes directed or necessitated by the
CPUC. In the event the Parties are unable to agree on the
required changes or modifications to this Agreement, their
dispute shall be resolved in accordance with the provisions of
Section 15 hereof or, in the alternative, ESP may elect to
terminate this Agreement upon written notice to PG&E, which
shall be effective upon the receipt thereof. PG&E retains the
right to unilaterally file with the CPUC, pursuant to the CPUC's
rules and regulations, an application for a change in PG&E's
rates, charges, classification, service or rules, or any
agreement relating thereto.
SECTION 22: BILLING OPTIONS OFFERED TO END-USE CUSTOMERS BY ESP
Check which billing options (as described in PG&E's direct
access tariff) ESP intends to provide its Customers under this
Agreement.
X CONSOLIDATED BILLING BY PG&E.
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CONSOLIDATED BILLING BY THE ESP.
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SEPARATE PG&E AND ESP BILLS.
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ESP may change these elections from time to time in compliance
with the relevant direct access tariff upon prior written notice
to PG&E. The Direct Access Service Request (DASR) for each
Direct Access customer will specify which billing option will
apply to that customer. If ESP specifies in any DASR any billing
option that has not been checked above, the DASR will be
rejected.
SECTION 23: METER OPTIONS OFFERED TO END-USE CUSTOMERS BY ESP
Check which meter options (as described in PG&E's direct access
tariff) ESP will offer for some or all of its Customers served
under this Agreement.
ESP will provide Hourly Meters.
-------
ESP will offer Hourly Meter Installation Services.
-------
ESP will offer Hourly Meter Reading Services.
-------
ESP may change these elections from time to time in compliance
with PG&E's direct access tariff upon prior written notice to
PG&E. The Direct Access Service Request (DASR) for each Direct
Access customer will specify which metering option will apply to
that Customer. If ESP specifies in any Direct
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Access Service Request any metering option that has not been checked above,
the DASR will be rejected.
SECTION 24: AUDITS
24.1 PG&E and the ESP shall each retain such specific records as may be
required to support the accuracy of meter data provided in their
respective consolidated xxxxxxxx. When either Party reasonably
believes that errors related to metering or billing activity may
have occurred, a Party may request the production of such
documents as may be required to verify the accuracy of such
metering and consolidated billing. Such documents shall be
provided within ten (10) business days of such request. In the
event the requesting Party upon review of such documents,
continues to believe that the other Party's duty to accurately
meter and provide consolidated billing for usage has been
breached, the requesting Party may direct that an audit be
conducted. PG&E and the ESP shall designate their own employee
representative or their contracted representative to audit the
other party's records.
24.2 Any such audit shall be undertaken by PG&E, the ESP, or their
contracted representative at reasonable times without interference
with the audited Party's business operations, and in compliance
with the audited Party's security procedures. PG&E and the ESP
agree to cooperate fully with any such audit.
24.3 Specific records to support the accuracy of meter data provided in
the consolidated xxxxxxxx may require examination of billing and
metering support documentation maintained by subcontractors. PG&E
and the ESP shall include a similar clause in their agreements
with their subcontractors reserving the right to designate their
own employee representative, or their contracted representative to
audit records related to consolidated billing to Direct Access
Customers.
24.4 The auditing Party will notify the audited Party in writing of any
exception taken as a result of an audit. The audited Party shall
refund the amount of any undisputed exception to the auditing
Party within ten (10) days. If the audited Party fails to make
such payment, the audited Party agrees to pay interest, accruing
monthly, at a rate equal to the prime rate plus two percent (2%)
of Bank of America MT&SA, San Francisco, or any successor
institution, in effect from time to time, but not to exceed the
maximum contract rate permitted by the applicable usury laws of
the State of California. Interest will be computed from the date
of written notification of exceptions to the date the audited
Party reimburses the auditing Party for any exception. The cost of
such audit shall be paid by the auditing Party; provided, however,
that in the event an audit verifies overcharges of five percent
(5%) or more, then the audited Party shall
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reimburse the auditing Party for the cost of the audit.
24.5 This right to audit shall extend for a period of three (3) years
following the date of final payment under this Agreement. Each
party and each subcontractor shall retain all necessary records
and documentation for the entire length of this audit period.
SECTION 25: MISCELLANEOUS
25.1 Unless otherwise stated in this Agreement: (a) any reference in
this Agreement to a section, subsection, attachment or similar
term refers to the provisions of this Agreement; (b) a reference
to a section includes that section and all its subsections; and
(c) the words "include," "includes," and "including" when used in
this Agreement shall be deemed in each case to be followed by the
words "without limitation." The Parties agree that the normal rule
of construction to the effect that any ambiguities are to be
resolved against the drafting Party shall not be employed in the
interpretation of this Agreement.
25.2 The provisions of this Agreement are for the benefit of the
Parties and not for any other person or third party beneficiary.
The provisions of this Agreement shall not impart rights
enforceable by any person, firm or organization other than a Party
or a successor or assignee of a Party to this Agreement.
25.3 The descriptive headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall in
no way define, modify or restrict any of the terms and provisions
thereof.
25.4 Any waiver at any time by either Party of its rights with respect
to a default under this Agreement, or with respect to any other
matter arising in connection with this Agreement, shall not be
deemed a waiver with respect to any other or subsequent default or
matter and no waiver shall be considered effective unless in
writing.
25.5 Each Party shall be responsible for paying its own attorneys' fees
and other costs associated with this Agreement, except as provided
in Sections 6 and 7 hereof. If a dispute exists hereunder, the
prevailing Party, as determined by the CPUC, or as may otherwise
be determined by the dispute resolution procedure contained in
Section 15 hereof, if used, or by a court of law, shall be
entitled to reasonable attorneys' fees and costs.
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25.6 To the extent that the CPUC has a right under then-current law
to audit either Party's compliance with this Agreement or other
legal or regulatory requirements pertaining to the Direct
Access transactions, that Party shall cooperate with such
audits. Nothing in this Section shall be construed as an
admission by either Party with respect to the right of the CPUC
to conduct such audits or the scope thereof.
25.7 Except as otherwise provided in this Agreement, all rights of
termination, cancellation or other remedies in this Agreement
are cumulative. Use of any remedy shall not preclude any other
remedy in this Agreement.
The Parties have executed this Agreement on the dates indicated below, to
be effective upon the later date.
ON BEHALF OF ESP ON BEHALF OF PG&E
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxx
------------------------------ ------------------------------
Title: PRESIDENT Title: MANAGER, ACCOUNT SERVICES
--------------------------- ---------------------------
Date: 4/28/98 Date: 5/7/98
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ATTACHMENT A
A. DEFINITIONS:
BILLING SERVICES - The consolidated billing services described in PG&E's
direct access tariff which are provided by PG&E and/or ESP.
CONSOLIDATED ESP XXXX - The consolidated xxxx prepared and presented by ESP
to an end-use customer which includes the customer's ESP Charges and PG&E
Charges.
CONSOLIDATED PG&E XXXX - The consolidated xxxx prepared and presented by PG&E
to an end-use customer which includes the Customer's ESP Charges and PG&E
Charges.
DIRECT ACCESS CUSTOMER - An end-use customer located within PG&E's service
territory who purchases Direct Access Services through the ESP.
ESP CHARGES - Charges for Direct Access Services provided by the ESP.
METERING SERVICES - The meter installation, maintenance and related services
described in PG&E's direct access tariff which are provided by PG&E and/or
ESP.
METER READING SERVICES - The meter reading and related services described in
PG&E's direct access tariff which are provided by PG&E and/or ESP.
PG&E CHARGES - Charges (a) for services provided by PG&E; or (b) which are
energy-related and which are approved by the CPUC or the Federal Energy
Regulatory Commission (including any Competition Transition Charges or
Fixed Transition Amount Charges owing to PG&E or its affiliates, as those
terms are defined under the California Public Utilities Code). Fixed
Transition Amount Charges are also referred to as Trust Transfer Amount
(TTA) Charges.
B. CONTACT PERSONS (SECTION 13.3):
1. BILLING SERVICES
PG&E Contact:
ESP Billing 415/972-5825
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ESP
Contact:
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2. METERING AND METER READING SERVICES
PG&E Contact:
ESP Metering Event Group 415/972-5363
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ESP
Contact:
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Appendix A
Form No. 79-948
Page 1 of 2
Tariffs & Compliance
October 30, 1997
C. PARTIES' REPRESENTATIVES (SECTION 15.1):
PG&E REPRESENTATIVE:
Manager of Account Services
Account Services Department
Mail Code H 28 B
X.X. Xxx 000000
XXX XXXXXXXXX, XX 00000
ESP REPRESENTATIVE:
------------------------------------------
CONTACT NAME
------------------------------------------
BUSINESS ADDRESS
----------------------------------------
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Appendix A
Form No. 79-948
Page 2 of 2
Tariffs & Compliance
October 30, 1997
