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EXHIBIT NO. 6.1
ESP SERVICE AGREEMENT WITH SAN DIEGO GAS & ELECTRIC.
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ENERGY SERVICE PROVIDER (ESP)
SERVICE AGREEMENT
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AGREEMENT NUMBER: 80
This Energy Service Provider Service Agreement (this "Agreement") is made and
entered into as of this 10 day of January (month), 2000 (year), by and between
FRIENDLY ENERGY CORPORATION (ESP Name), a Corporation (type of entity)
organized and existing, under the laws of the state of Nevada and San Diego
Gas & Electric Company (SDG&E), a corporation organized and existing under the
laws of the state of California. From time to time, ESP and UDC shall be
individually referred to herein as a "Party" and collectively as the "Parties."
SECTION 1: GENERAL DESCRIPTION OF AGREEMENT
1.1 This Agreement is a legally binding contract. The Parties
named in this Agreement are bound by the terms set forth
herein and otherwise incorporated herein by reference. This
Agreement shall govern the business relationship between the
Parties hereto by which ESP shall offer electrical energy
services, including, but not limited to, account maintenance
and billing services, electrical meter installation, meter
reading services and/or any other services that may be
approved by the California Public Utilities Commission
("CPUC") in Direct Access transactions with customers in UDC's
service territory ("Direct Access Services"). Each Party, by
agreeing to undertake specific activities and responsibilities
for or on behalf of customers, acknowledges that each Party
shall relieve and discharge the other Party of the
responsibility for said activities and responsibilities with
respect to those customers. Except where explicitly defined
herein (including Attachment A hereto) the definitions
controlling this Agreement are contained in UDC's applicable
rules or in the relevant direct access tariff.
1.2 The form of this Agreement has been developed as part of the
CPUC regulatory process, was intended to conform to CPUC
directions, was filed and approved by the CPUC for use between
UDC and ESPs and may not be waived, altered, amended or
modified, except as provided herein or in the relevant direct
access tariff, or as may otherwise be authorized by the CPUC.
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SECTION 2: REPRESENTATIONS
2.1 Each Party represents that it is and shall remain in
compliance with all applicable laws and tariffs, including
applicable CPUC requirements.
2.2 Each person executing this Agreement for the respective
Parties expressly represents and warrants that he or she has
authority to bind the entity on whose behalf this Agreement is
executed.
2.3 Each Party represents that (a) it has the full power and
authority to execute and deliver this Agreement and to perform
its terms and conditions; (b) the execution, delivery and
performance of this Agreement have been duly authorized by all
necessary corporate or other action by such Party; and (c)
this agreement constitutes such Party's legal, valid and
binding obligation, enforceable against such Party in
accordance with its terms.
2.4 Each Party shall (a) exercise all reasonable care, diligence
and good faith in the performance of its duties pursuant to
this Agreement; and (b) carry out its duties in accordance
with applicable recognized professional standards in
accordance with the requirements of this Agreement.
SECTION 3: TERM OF SERVICE
The term of this Agreement shall commence on the date of
execution by both Parties hereto (the "Effective Date") and
shall terminate on the earlier of (a) the date ESP informs UDC
that it is no longer operating as an ESP in the UDC's service
territory; (b) the earlier termination pursuant to Section 4
hereof, or (c) the effective date of a new ESP Service
Agreement between the Parties hereto. Notwithstanding the
Effective Date of this Agreement, the ESP acknowledges that it
may only offer Direct Access Services to customers effective
January 1, 1998, or such other date as may be directed by the
CPUC for commencement of such services by ESPs, and only after
it has complied with all provisions of this Agreement and
UDC's applicable tariffs.
SECTION 4: EVENTS OF DEFAULT AND REMEDY FOR DEFAULT
4.1 An Event of Default under this Agreement shall include either
Party's material breach of any provision of this Agreement,
including those incorporated by reference herein, and failure
to cure such breach within thirty (30) calendar days of
receipt of written notice thereof from the non-defaulting
Party; or such other period
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as may be provided by this Agreement or the relevant direct
access tariff.
4.2 In the event of such an Event of Default, the non-defaulting
Party shall be entitled (a) to exercise any and all remedies
available under the relevant direct access tariff; (b) to the
extent not inconsistent with the relevant direct access
tariff, to exercise any and all remedies provided for by law
or in equity; and (c) in the event of a material Event of
Default, to terminate this Agreement upon written notice to
the other Party, which shall be effective upon the receipt
thereof.
4.3 Breach by any Party hereto of any provision of the relevant
direct access tariff shall be governed by applicable
provisions contained therein and each Party will retain all
rights granted thereunder.
SECTION 5: BILLING, METERING AND PAYMENT
5.1 Billing options and metering services which are available to
ESP shall be as described in the relevant direct access
tariff as stated in UDC's Electric Rule 25. Billing and
metering options applicable to a particular customer shall be
designated in the Direct Access Service Request submitted by
the ESP for such customer.
5.2 UDC will bill and the ESP agrees to pay UDC for all services
and products provided by UDC in accordance with the terms and
conditions set forth in the relevant direct access tariff, as
stated in UDC's Electric Rule 25. Any services provided by the
ESP to the UDC shall be by separate agreement between the
Parties and are not a subject of this Agreement.
SECTION 6: LIMITATION OF LIABILITY
Each Party's liability to the other Party for any loss, cost,
claim, injury, liability, or expense, including reasonable
attorneys' fees, relating to or arising from any act or
omission in its performance of this Agreement, shall be
limited to the amount of direct damage actually incurred,
except as provided for in this Section. In no event shall
either Party be liable to the other Party for any indirect,
special, consequential, or punitive damages of any kind
whatsoever, whether in contract, tort or strict liability,
except in the event of an action covered by the
Indemnification provisions of Section 7 of this Agreement, in
which event this Section 6 shall not be applicable.
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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.
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 tile 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 an any statutory scheme,
including, without limitation, under any Worker's Compensation
Acts, Disability Benefit Acts or other Employee Benefit Acts.
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SECTION 8: ASSIGNMENT AND DELEGATION
8.1 Neither Party to this Agreement shall assign any of its rights
or obligations under this Agreement, except with the prior
written consent of the other Party, which consent shall not be
unreasonably withheld or delayed. No assignment of this
Agreement shall relieve the assigning Party of any of its
obligations under this Agreement until such obligations have
been assumed by the assignee. When duly assigned in accordance
with the foregoing, this Agreement shall be binding upon and
shall inure to the benefit of the assignee and the assignor
shall be relieved of its rights and obligations. Any
assignment in violation of this Section 8 shall be void.
8.2 Notwithstanding the provisions of this Section 8, either Party
may subcontract its duties under this Agreement to a
subcontractor, provided that the subcontracting Party shall
remain fully responsible as a principal and not as a guarantor
for performance of any subcontracted duties, shall serve as
the point of contact between its subcontractor and the other
Party, and shall provide the other Party with thirty (30)
calendar days' prior written notice of any such
subcontracting, which notice shall include such information
about the subcontractor as the other Party shall reasonably
require, and provided further that each Party may subcontract
its obligation to provide Metering or Meter Reading Services
under this Agreement only to subcontractors who have complied
with all certification or registration requirements described
in applicable law, CPUC rules and the relevant direct access
tariff. If either Party subcontracts any of its duties
hereunder, it shall cause its subcontractors to perform in a
manner which is in conformity with that Party's obligations
under this Agreement.
SECTION 9: INDEPENDENT CONTRACTORS
Each Party shall perform its obligations under this Agreement
(including any obligations performed by a Party's designees as
permitted under Section 8 of this Agreement) as an independent
contractor.
SECTION 10: ENTIRE AGREEMENT
This Agreement consists of, in its entirety, this Energy
Service Provider Service Agreement and all attachments hereto,
all Direct Access Service Requests submitted pursuant to this
Agreement and the relevant direct access tariff. This
Agreement supersedes all other agreements or understandings,
written or oral, between the Parties related to the subject
matter hereof. This Agreement may be modified from time to
time only by an instrument in writing, signed by both Parties.
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SECTION 11: NONDISCLOSURE
11.1 Neither Party may disclose any Confidential Information
obtained pursuant to this Agreement to any third party,
including affiliates of such Party, without the express prior
written consent of the other Party. As used herein, the term
"Confidential Information" shall include, but not be limited
to, all business, financial, and commercial information
pertaining to the Parties, customers of either or both
Parties, suppliers for either Party, personnel of either
Party, any trade secrets, and other information of a similar
nature, whether written or in intangible form that is marked
proprietary or confidential with the appropriate owner's name.
Confidential Information shall not include information known
to either Party prior to obtaining the same from the other
Party, information in the public domain, or information
obtained by a Party from a third party who did not, directly
or indirectly, receive the same from the other Party to this
Agreement or from a party who was under an obligation of
confidentiality to the other Party to this Agreement or
information developed by either Party independent of any
Confidential Information. The receiving Party shall use the
higher of the standard of care that the receiving Party uses
to preserve its own confidential information or a reasonable
standard of care to prevent unauthorized use or disclosure of
such Confidential Information. Each receiving Party shall,
upon termination of this Agreement or at any time upon the
request of the disclosing Party, promptly return or destroy
all Confidential Information of the disclosing Party then in
its possession.
11.2 Notwithstanding the preceding, Confidential Information may be
disclosed to any governmental, judicial or regulatory
authority requiring such Confidential Information pursuant to
any applicable law, regulation, ruling, or order, provided
that: (a) such Confidential Information is submitted under any
applicable provision, if any, for confidential treatment by
such governmental, judicial or regulatory authority; and (b)
prior to such disclosure, the other Party is given prompt
notice of the disclosure requirement so that it may take
whatever action it deems appropriate, including intervention
in any proceeding and the seeking of any injunction to
prohibit such disclosure.
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SECTION 12: ENFORCEABILITV
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: Thomas Bowers
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Business Address: 4275 Executive Square, Suite 250
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La Jolla, CA 92037
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Facsimile: 858-622-1204
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IF THE NOTICE IS TO UDC:
Contact Name: Lora S. Clay
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Business Address: 8306 Century Park Court Suite 42L
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San Diego, CA 92123-1576
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Facsimile: (619) 654-1794
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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.
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13.3 Each Party shall designate on Attachment A the person(s) to be
contacted with respect to specific operational matters
relating to Direct Access service. Each Party shall be
entitled to specify any change to such person(s) Upon written
notice to the other Party.
SECTION 14: TIME OF ESSENCE
The Parties expressly agree that time is of the essence for
all portions of this Agreement.
SECTION 15: DISPUTE RESOLUTION
15.1 The form of this Agreement has been filed with and approved by
the CPUC as part of the UDC's applicable tariffs. Except as
provided in Section 15.2 and 15.3, any dispute arising between
the Parties relating to interpretation of the provisions of
this Agreement or to the performance of the UDC's obligations
hereunder (including the performance of Billing Services,
Metering Services and MDMA Services by the UDC) shall be
reduced to writing and referred to the Parties'
representatives identified on Attachment A for resolution.
Should such a dispute arise, the parties shall be required to
meet and confer in an effort to resolve their dispute. Pending
resolution, the Parties shall proceed diligently with the
performance of their respective obligations under this
Agreement, except if this Agreement has been terminated under
Section 4.2. If the Parties fail to reach an agreement within
a reasonable period of time, the matter shall, upon demand of
either Party, be submitted to resolution before the CPUC in
accordance with the CPUC's rules, regulations and procedures
applicable to resolution of such disputes.
15.2 Any dispute arising between the Parties relating to
interpretation of the provisions of this Agreement or to the
performance of the ESP's obligations hereunder (including the
performance of Billing Services, Metering Services and MDMA
Services by the ESP) shall be reduced to writing and referred
to the Parties' representatives identified on Attachment A for
resolution. Should such a dispute arise, the parties shall be
required to meet and confer in an effort to resolve their
dispute. Pending resolution, the Parties shall proceed
diligently with the performance of their respective
obligations under this Agreement, except if this Agreement has
been terminated under Section 4.2. If the Parties fail to
reach an agreement within a reasonable period of time, the
parties may mutually agree to pursue mediation or arbitration
to resolve such issues.
15.3 Notwithstanding the provisions of Paragraph 15.1 and 15.2
above: (a) all disputes
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between the Parties relating to the payment by the ESP of any
UDC fees or charges shall be subject to the provisions of
the UDC's applicable tariffs governing disputes over
customer bills; (b) all disputes between the Parties
regarding Competition Transition Charges payable by direct
access customers or the ESP on behalf of such customers
shall be subject to the provisions of the UDC's applicable
tariffs; and (c) the UDC may pursue available remedies for
unauthorized electrical use by the ESP in a court of
competent jurisdiction.
15.4 If the dispute involves a request for damages, parties are
notified that the Commission has no authority to award
damages. To resolve such issues, the parties may mutually
agree to pursue mediation or arbitration to resolve such
issues, or if no agreement is reached, to pursue other legal
remedies that are available to the parties.
SECTION 16: APPLICABLE LAW AND VENUE
This Agreement shall be interpreted, governed by and construed
in accordance with the laws of the State of California, and
shall exclude any choice of law rules that direct the
application of the laws of another jurisdiction, irrespective
of the place of execution or of the order in which the
signatures of the parties are affixed or of the place or
places of performance. Except for matters and disputes with
respect to which the CPUC is the sole proper venue for dispute
resolution pursuant to applicable law or this Agreement, the
federal and state courts located in San Diego County,
California shall constitute the sole proper venue for
resolution of any matter or dispute hereunder, and the Parties
submit to the exclusive jurisdiction of such courts with
respect to such matters and disputes.
SECTION 17: FORCE MAJEURE
Neither Party shall be liable for any delay or failure in the
performance of any part of this Agreement (other than
obligations to pay money) due to any event of force majeure or
other cause beyond its reasonable control, including but not
limited to, unusually severe weather, flood, fire, lightning,
epidemic, quarantine restriction, war, sabotage, act of a
public enemy, earthquake, insurrection, riot, civil
disturbance, strike, work stoppage caused by jurisdictional
and similar disputes, restraint by court order or public
authority, or action or non-action by or inability to obtain
authorization or approval from any governmental authority, or
any combination of these causes, which by the exercise of due
diligence and foresight such Party could not reasonably have
been expected to avoid and which by the exercise of due
diligence is unable to overcome. It is agreed that upon the
Party so
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affected giving written notice and reasonably full particulars
of such force majeure to the other Party within a reasonable
time after the cause relied on, then the obligations of the
Party, so far as they are affected by the event of force
majeure, shall be suspended during the continuation of such
inability and circumstance and shall, so far as possible, be
remedied with all reasonable dispatch. In the event of force
majeure, as described herein, both Parties shall take all
reasonable steps to comply with this Agreement and UDC's
applicable tariffs despite occurrence of a force majeure
event.
SECTION 18: UNAUTHORIZED USE OF ENERGY (ENERGY THEFT)
18.1 The ESP represents and warrants that for each of its
Customers, and at all times during which it provides Direct
Access services as an Energy Service Provider, the ESP shall
completely, accurately, and in a timely manner account for
each of its Customer's loads with a duly authorized Scheduling
Coordinator. Load data not accounted for in this manner may
provide grounds for termination of this Agreement. For
verification purposes only, the UDC shall have complete access
to the identity of the Scheduling Coordinator and the load
data provided to it by the ESP. Such information is to remain
confidential, and shall not be disclosed to any unauthorized
person.
18.2 The UDC shall notify the ESP immediately and the ESP shall
notify the UDC immediately of any suspected unauthorized
energy use. The Parties agree to preserve any evidence of
unauthorized energy use. Once unauthorized energy use is
suspected, the UDC, in its sole discretion, may take any or
all of the actions permitted under UDC's applicable tariffs.
SECTION 19: NOT A JOINT VENTURE
Unless specifically stated in this Agreement to be otherwise,
the duties, obligations, and liabilities of the Parties are
intended to be several and not joint or collective. Nothing
contained in this Agreement shall ever be construed to create
an association, trust, partnership or joint venture or to
impose a trust or partnership duty, obligation, or liability
on or with regard to either Party. Each Party shall be liable
individually and severally for its own obligations under this
Agreement.
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SECTION 20: CONFLICTS BETWEEN THIS AGREEMENT AND THE RELEVANT DIRECT
ACCESS TARIFF
Should a conflict exist or develop between the provisions of
this Agreement and the relevant direct access tariff, as
approved by the CPUC, the provisions of the relevant direct
access tariff shall prevail.
SECTION 21: AMENDMENTS OR MODIFICATIONS
21.1 Except as provided in Section 21.2, no amendment or
modification shall be made to this Agreement, in whole or in
part, except by an instrument in writing executed by
authorized representatives of the Parties, and no amendment or
modification shall be made by course of performance, course of
dealing or usage of trade.
21.2 This Agreement may be subject to such changes or modifications
as the CPUC may from time to time direct or necessitate
in the exercise of its jurisdiction, and the Parties may amend
the Agreement to conform to changes directed or necessitated
by the CPUC. In the event the Parties are unable to agree on
the required changes or modifications to this Agreement, their
dispute shall be resolved in accordance in with the provisions
of Section 15 hereof or, in the alternative, ESP may elect to
terminate this Agreement upon written notice to UDC, which
shall be effective upon the receipt thereof. UDC retains the
right to unilaterally file with the CPUC, pursuant to the
CPUC's rules and regulations, all application for a change in
UDC's rates, charges, classification, service or rules, or any
agreement relating thereto.
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SECTION 22: BILLING OPTIONS OFFERED TO END-USE CUSTOMERS BY ESP
Check which billing options (as described in the relevant
direct access tariff) ESP intends to provide its Customers
under this Agreement.
X CONSOLIDATED BILLING BY UDC. (if ESP is selecting
--- this billing option, indicate the primary method for
notifying UDC of ESP charges)
EDI
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X Other electronic exchange
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CONSOLIDATED BILLING BY THE ESP. If ESP is selecting
--- this billing option, (a) ESP must submit a credit
application on the form supplied by UDC; and (b)
indicate the primary method for notifying ESP of UDC'
Charges (CHECK ONE):
Paper
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Diskette
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EDI
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Other electronic exchange
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SEPARATE UDC AND ESP BILLS.
---
ESP may change these elections from time to time in compliance
with the relevant direct access tariff upon prior written
notice to UDC. The Direct Access Service Request for each
Direct Access customer will specify which billing option will
apply to that customer. If ESP specifies in any DASR any
billing option that has not been checked above, the DASR will
be rejected.
SECTION 23: METER OPTIONS OFFERED TO END-USE CUSTOMERS BY ESP
PLEASE INDICATE WHICH METER OPTIONS (AS DESCRIBED IN UDCS
APPLICABLE TARIFFS) THE ESP WILL OFFER FOR SOME OR ALL
CUSTOMERS SERVED UNDER THIS AGREEMENT:
ESP will provide Hourly Meters.
---
ESP will offer Hourly Meter Installation Services.
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ESP will offer Hourly Meter Reading Services.
---
ESP may change these elections from time to time in compliance
with the relevant
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direct access tariff upon prior written notice to UDC. The
Direct Access Service Request for each Direct Access customer
will specify which metering option will apply to that
Customer. If ESP specifies in any Direct Access Service
Request any metering option that has not been checked above,
the DASR will be rejected.
SECTION 24: AUDITS
24.1 The UDC and the ESP shall each retain such specific records as
may be required to support the accuracy of meter data provided
in their respective consolidated billings. 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 tell (10) business days of such request. In
the event the requesting, Party, upon review of such
documents, continues to believe that the other Party's duty to
accurately meter and provide consolidated billing for usage
has been breached, the requesting Party may direct that an
audit be conducted. The UDC and the ESP shall designate their
own employee representative or their contracted representative
to audit the other party's records.
24.2 Any such audit shall be undertaken by the UDC, the ESP, or
their contracted representative at reasonable times without
interference with the audited Party's business operations, and
in compliance with the audited Party's security procedures.
UDC and the ESP agree to cooperate fully with any such audit.
24.3 Specific records to support the accuracy of meter data
provided in the consolidated billings may require examination
of billing and metering support documentation maintained by
subcontractors. UDC and tile 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
falls to make such payment, the audited Party agrees to pay
interest, accruing monthly, at a rate equal to the prime rate
plus two percent (2%) of Bank of America NT&SA, San Francisco,
or any successor institution in effect from time to time, but
not to exceed the maximum contract rate permitted by the
applicable usury laws of the State of California. Interest
will be computed from the date of written notification of
exceptions to the date the audited Party reimburses the
auditing Party for any exception. The cost of such audit shall
be
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paid by the auditing Party; provided, however, that in the
event an audit verifies overcharges of five percent (5%) or
more, then the audited Party shall reimburse the auditing
Party for the cost of the audit.
24.5 This right to audit shall extend for a period of three (3)
years following the date of final payment under this
Agreement. Each party and each subcontractor shall retain all
necessary records and documentation for the entire length of
this audit period.
SECTION 25: MISCELLANEOUS
25.1 Unless otherwise stated in this Agreement: (a) any reference
in this Agreement to a section, subsection, attachment or
similar term refers to the provisions of this Agreement; (b) a
reference to a section includes that section and all its
subsections; and (c) the words "include," "includes," and
"including" when used in this Agreement shall be deemed in
each case to be followed by the words "without limitation."
The Parties agree that the normal rule of construction to the
effect that any ambiguities are to be resolved against the
drafting Party shall not be employed in the interpretation of
this Agreement.
25.2 The provisions of this Agreement are for the benefit of the
Parties and not for any other person or third party
beneficiary. The provisions of this Agreement shall not impart
rights enforceable by any person, firm or organization other
than a Party or a successor or assignee of a Party to this
Agreement.
25.3 The descriptive headings of the various sections of this
Agreement have been inserted for convenience of reference only
and shall in no way define, modify or restrict any of the
terms and provisions thereof.
25.4 Any waiver at any time by either Party of its rights with
respect to a default under this Agreement, or with respect to
any other matter arising in connection with this Agreement,
shall not be deemed a waiver with respect to any other or
subsequent default or matter and no waiver shall be considered
effective unless in writing.
25.5 Each Party shall be responsible for paying its own attorneys'
fees and other costs associated with this Agreement, except as
provided in Sections 6 and 7 hereof. If a dispute exists
hereunder, the prevailing Party, as determined by the CPUC, or
as may otherwise be determined by the dispute resolution
procedure contained in Section 15 hereof, if used, or by a
court of law, shall be entitled to reasonable attorneys' fees
and costs.
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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 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.
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The Parties have executed this Agreement on the dates indicated below,
to be effective upon the later date.
ON BEHALF OF ESP ON BEHALF OF UDC
By: /s/ Thomas Bowers By: /s/ Lora Clay
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FRIENDLY ENERGY CORPORATION
Name: Thomas Bowers Name: Lora Clay
------------------------------ ----------------------
Title: Chief Operating Officer Title: ESP Relations
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Date: January 10, 2000 Date: January 10, 2000
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15
<PAGE>
[LOGO]
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ENERGY SERVICE PROVIDER (ESP)
SERVICE AGREEMENT
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ATTACHMENT A
A. DEFINITIONS:
BILLING SERVICES - The consolidated billing services described in the relevant
direct access tariff which are provided by the UDC and/or ESP.
CONSOLIDATED ESP BILL - The consolidated bill prepared and presented by ESP to
an end-use customer which includes the customer's ESP Charges and UDC Charges.
CONSOLIDATED UDC BILL - The consolidated bill prepared and presented by UDC to
all end-use customer which includes the Customer's ESP Charges and UDC Charges.
DIRECT ACCESS CUSTOMERS - An end-use customer located within UDC's service
territory who purchases Direct Access Services through the ESP.
ESP CHARGES - Charges for Direct Access Services provided by the ESP.
METERING SERVICES - The meter installation, maintenance and related services
described in the relevant direct access tariff which are provided by the UDC
and/or ESP.
METER READING SERVICES - The meter reading and related services described in the
relevant direct access tariff which are provided by the UDC and/or ESP.
UDC CHARGES - Charges (a) for services provided by UDC; or (b) which are
energy-related and which are approved by the CPUC or the Federal Energy
Regulatory Commission (including any Competition Transition Charges or Fixed
Transition Amount Charges owing to UDC or its affiliates, as those terms are
defined under the California Public Utilities Code). Fixed Transition Amount
Charges are also referred to as Trust Transfer Amount (TTA) Charges.
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B. CONTACT PERSONS (SECTION 13.3):
1. BILLING SERVICES
UDC Contact: Shannon Ray (858) 654-11??
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ESP Contact: Thomas Bowers (858) 622-1200
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2. MLETERING AND METER READING SERVICES
UDC Contact: Steve Grady (619) 654-8242
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ESP Contact: Thomas Bowers (858) 622-1200
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C. Parties' Representatives (Section 15.1):
UDC Contact: Dawn Osborne (858) 654-275?
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ESP Representative: Thomas Bowers (858) 622-1200
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