Opinion
Case No. 01-16034 (AJG), Jointly Administered.
July 17, 2003.
Melanie Gray, Weil, Gotshal Manges, LLP, New York, NY, Attorneys for Debtors and Debtors in Possession.
Brian S. Hucker, Esq., McDermott, Will Emery, Chicago, IL, Attorneys for Computer Sciences Corporation.
Enron Energy Services Operations, Inc., on its own behalf and on behalf of its Affiliates (collectively, "EESO"), and Computer Sciences Corporation, on its own behalf and on behalf of its Affiliates (collectively, "CSC"), by and through their respective counsel, do hereby stipulate as follows:
RECITALS
A. On December 2, 2001 (the "Petition Date"), Enron Corp. and certain of its affiliated debtor entities (collectively, the "Debtors"), each filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code") in the United States Bankruptcy Court for the Southern District of New York (the "Court").
B. On or about November 1, 2000, EESO entered into a certain Amended and Restated Services Agreement (the "CSC Services Agreement") with Computer Sciences Corporation. The CSC Services Agreement has a term of 50 years (subject to renegotiation or termination as of the commencement of its 11th, 12th, 20th, 30th and 40th years) and provides for EESO to outsource certain metering, billing, collections, response and related services (the "MBCR Services") and certain other services (the "Other Services") with respect to EESO retail commodity customers. CSC has provided services pursuant to the CSC Services Agreement and EESO has paid CSC for such services post-petition through February 28, 2003.
Capitalized terms not defined in this Stipulation shall have the meanings given to such terms in the CSC Services Agreement.
C. Included in the Other Services that CSC provides under the CSC Services Agreement are certain meter data processing and settlement services.
D. Enron Energy Services, Inc. and Enron Energy Marketing Corp., Affiliates of EESO, were each an energy services provider ("ESP") and a portion of the ESP's settlement duties were outsourced to CSC.
E. In November 2002, CSC discovered that some of the data read and transmitted to EESO may have, in some instances, resulted in under-reporting for periods before and after the Petition Date. CSC promptly reported its discovery to EESO, and EESO and Enron Power Marketing, Inc. promptly (after investigation necessary to understand the likely cause and potential scope of the under-reporting) reported the CSC discovery as well as additional information from its own review to the California Independent System Operator Corporation ("CA ISO").
F. CSC has agreed to re-run certain data for EESO in accordance with the terms of this Stipulation and Order.
G. Because EESO is in the process of winding up its businesses, EESO has determined that rejection of the CSC Services Agreement and additional related agreements between CSC and EESO, to the extent that such additional related agreements are executory contracts, is in the best interest of its estate and creditors. Accordingly, this Stipulation and Order governs the rejection of the CSC Services Agreement and such additional related agreements, as well as performance of the ISO Settlement Services Project, which could not have been completed prior to the parties' agreed-upon rejection date.
NOW, THEREFORE, IT IS HEREBY AGREED, BY THE PARTIES, BY AND THROUGH THEIR RESPECTIVE COUNSEL, AS FOLLOWS:
AGREEMENT
1. Upon approval of this Stipulation and Order by the Court, the CSC Services Agreement and the additional related agreements between CSC and EESO listed on Exhibit A attached hereto ("Other Agreements"), to the extent that such Other Agreements are executory contracts, shall be deemed rejected pursuant to section 365 of the Bankruptcy Code, as of February 28, 2003.
2. Notwithstanding the rejection of the CSC Services Agreement and Other Agreements, and termination thereof pursuant to Section 6 below, CSC has agreed to perform the work described in the Statement of Work attached hereto as Exhibit B (the "ISO Settlement Services Project").
3. All information and data resulting from the performance of the ISO Settlement Services Project shall be considered Confidential Information of EESO and EESO Data. CSC shall hold in strict confidence and not disclose to any third party any settlement file or related information generated or developed in connection with the ISO Settlement Services Project (or information generated therefrom) except as authorized herein; provided that CSC may disclose any such information to the extent required by applicable law upon reasonable advance written notice to EESO. EESO may use or disclose any such settlement files or related information (or information generated therefrom) as it determines in its discretion including, without limitation, to the CA ISO, any regulatory body, the Creditor's Committee in its pending Bankruptcy Case, or the Court.
4. Upon completion of the ISO Settlement Services Project, CSC will copy EESO's final customer, meter, and consumption data in MDMA-EESO and MDMA-EEMC databases to tape. CSC will ship the physical tapes to EESO in Houston at EESO's expense. CSC will attempt to remove all CSC Confidential Information and CSC intellectual property (collectively, the "CSC IP") that is imbedded in the EESO Data. To the extent that all imbedded CSC IP is not removed from the EESO Data, CSC hereby grants EESO a limited license to use the CSC IP solely for the purpose of accessing the EESO Data so long as EESO needs to access the EESO Data. EESO may not transfer this limited license to any other party under any circumstances, nor may EESO use the CSC IP for any other purpose. THIS LICENSE IS ON AN "AS IS" AND "WHERE IS" BASIS WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. There shall be no maintenance or support for the license. Any CSC IP obtained by EESO pursuant to this paragraph shall be destroyed after it is no longer required to access the EESO Data. This license does not include any right to use any applications that CSC uses or used to perform services under the CSC Services Agreement. Notwithstanding any provision of this Stipulation and Order, nothing herein shall alter EESO's right to use any EESO intellectual property other than intellectual property sold or assigned to CSC in connection with the CSC Services Agreement or the Other Agreements. If EESO discovers that it possesses any of the following items, then EESO shall promptly return same to CSC: (i) personal computers and other related information technology equipment owned or leased by CSC, and () CSC process and procedure documents relative to the CSC Services Agreement.
5. (a) EESO, for itself, its successors and assigns, hereby waives, releases and forever discharges CSC and each of their past, present and future officers, directors, partners, members, employees, agents, and servants from any and all claims, obligations, demands, actions, causes of action and liabilities, of whatsoever kind and nature, character and description, whether in law or equity, whether sounding in tort, contract or under other Applicable Law (as defined below), whether known or unknown, and whether anticipated or unanticipated, of or to EESO, which EESO and its successors and assigns ever had, now have or may ever have, arising from any event, transaction, matter, circumstance or fact in any way arising out of, arising as a result of, related to, with respect to or in connection with or based in whole or in part on the CSC Services Agreement and the Other Agreements (such claims, obligations, demands, actions, causes of action and liabilities referred to herein collectively as "EESO Claims"); provided, however, that EESO does not hereby waive, release or discharge CSC from any of its obligations under this Stipulation and Order.
(b) CSC, for itself, its successors and assigns, hereby waives, releases and forever discharges EESO, including its Affiliate Enron Corp., and each of their past, present, and future officers, directors, partners, members, employees, agents, and servants from any and all claims, obligations, demands, actions, causes of action and liabilities, of whatsoever kind and nature, character and description, whether in law or equity, whether sounding in tort, contract or under other Applicable Law, whether known or unknown, and whether anticipated or unanticipated, of or to CSC, which CSC and its successors and assigns ever had, now have or may ever have, arising from any event, transaction, matter, circumstance or fact in any way arising out of, arising as a result of, related to, with respect to or in connection with or based in whole or in part on the CSC Services Agreement and the Other Agreements (inclusive of the Enron Guaranty) (such claims, obligations, demands, actions, causes of action and liabilities referred to herein collectively as "CSC Claims" and, together with the EESO Claims, as "Claims"); provided, however, that CSC does not hereby waive, release or discharge EESO from any of its obligations under this Stipulation and Order.
(c) The consequences of the foregoing waiver provisions have been explained by each of the parties' respective counsel. Each of the parties acknowledge that they may hereafter discover facts different from, or in addition to, those which they now know or believe to be true with respect to the Claims, and agree that the releases contained herein shall be and remain effective in all respects notwithstanding such different or additional facts or the discovery thereof.
(d) To the extent Applicable Law would not otherwise recognize the provisions of subsections (a) and (b) of this Section 5 as constituting a full and final release applying to all unknown and unanticipated Claims, as well as those now known or disclosed, the parties hereby expressly waive all rights or benefits which either one or both of them may have now or in the future under any such Applicable Law. Each of EESO and CSC waives all rights or benefits which it now has or may have in the future under the terms, should California law apply, of Section 1542 of the California Civil Code and all similar statutes in force in other jurisdictions and understands that California Civil Code Section 1542 reads as follows:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release which if known by him must have materially affected his settlement with the debtor."
(e) As used herein, the following terms shall have the following meanings:
(i) "Affiliates" shall mean a Person directly or indirectly controlled by, controlling or under common control with the other Person. For the purposes of this definition, "control" means, when used with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
(ii) "Applicable Law" shall mean any statute, law, rule or regulation or any judgment, order, consent order, stipulated agreement, ordinance, writ, injunction or decree of any Governmental Entity.
(iii) "Governmental Entity" shall mean any domestic court or tribunal in any domestic jurisdiction or any federal, state, municipal or local government or other governmental body, agency, authority, district, department, commission, board, bureau, or other instrumentality, arbitrator or arbitral body (domestic or foreign), including any joint action agency, public power authority, public utility district, or other similar political subdivision.
(iv) "Person" shall mean any individual, corporation, partnership, joint venture, trust, limited liability company, unincorporated organization, Governmental Entity or other entity.
(f) EESO and CSC hereby acknowledge and agree that the provisions of this Section 5 and the releases provided for therein shall be solely applicable to the CSC Services Agreement and Other Agreements. The provisions of this Section 5 shall not be interpreted as or otherwise intended to be a release of any rights, remedies or obligations either one or both of the parties may have against the other party and/or any Affiliates of the other party arising out of, related to or in connection with any contracts, agreements or other arrangements, other than those rights, remedies, or obligations set forth in the CSC Services Agreement and the Other Agreements.
(g) CSC agrees that it will withdraw, with prejudice, all proofs of claims filed in the Court within ten (10) days after approval of this Stipulation and Order by the Court.
(h) CSC agrees that it will return to EESO the original Guaranty of Enron Corp. listed in Exhibit A upon approval of this Stipulation and Order by the Court.
6. Upon approval of this Stipulation and Order by the Court, automatically and immediately without further action by either party, the CSC Services Agreement and the Other Agreements (inclusive of the Enron Guaranty) shall be deemed terminated and the parties shall have no further rights or obligations whatsoever under the CSC Services Agreement and the Other Agreements. Notwithstanding anything in this Stipulation and Order to the contrary, EESO shall have all rights and remedies provided by Applicable Law to enforce CSC's obligations under this Stipulation and Order and CSC shall have all rights and remedies provided by Applicable Law to enforce EESO's obligations under this Stipulation and Order.
7. The parties acknowledge that notwithstanding the rejection and termination of the CSC Services Agreement, the ISO Settlement Services Project shall be performed diligently, in a workmanlike manner and in accordance with the practices and professional standards of the information technology services industry and that any claims related to the ISO Settlement Services Project shall be governed by the provisions set forth in the CSC Services Agreement, including but not limited to the provisions set forth in paragraphs 28 and 29 of the CSC Services Agreement.
8. Upon approval of the Court, this Stipulation and Order shall be binding on the parties hereto, and their respective successors and assigns.
9. To facilitate execution, this Stipulation and Order may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature and acknowledgment of, or on behalf of, each party, or that the signature and acknowledgment of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this Stipulation and Order to produce or account for more than a single counterpart containing the respective signatures and acknowledgment of, or on behalf of, each of the parties hereto. Facsimile signatures shall be binding to the same effect as originals.
10. This Stipulation and Order may only be amended by the written consent of the parties; provided however, that in connection therewith, the parties shall obtain the prior written consent of the Official Committee of Unsecured Creditors, which consent shall not be unreasonably withheld, and, provided further, that any such modification, amendment or supplement shall neither be material nor change the economic substance of the settlement approved hereby.
11. The payments being made to CSC pursuant to the Statement of Work attached as Exhibit B are being made in the ordinary course of EESO's business pursuant to section 1108 of the Bankruptcy Code.
So Ordered.
Exhibit "A" To Stipulation And Order Authorizing Enron Energy Services Operations, Inc. To Reject Executory Contracts With Computer Sciences Corporation And Enter Into Settlement Agreement Other Agreements
1. Stock Purchase Agreement between CSC and EESO dated as of May 24, 1999, as amended as of May, 1999, December 21, 1999 and November 1, 2000
2. Operating Income Sharing Agreement between and EESO dated November 1, 2000
3. Guaranty Agreement, dated as of May 24, 1999, made by Enron Corp in favor of CSC to support EESO's obligations to CSC (the "Enron Guaranty")Exhibit "B" To Stipulation And Order Authorizing Enron Energy Services Operations, Inc. To Reject Executory Contracts With Computer Sciences Corporation And Enter Into Settlement Agreement ISO Settlement Services Project Statement of Work
1 Objective
The overall objective of this project (the "ISO Settlement Services Project") is for Computer Sciences Corporation ("CSC") to provide settlement data for the following periods to Enron Energy Services Operations, Inc. ('EESO") in support of EESO's business objective of providing re-stated data to the California Independent System Operator Corporation (the "CA ISO"): (i) December 2, 2001 through November 11, 2002 ("Post-Petition In-Scope Dates"), (ii) November 12, 2002 through December 23, 2002, as may be required pursuant to Section 7 ("Other Post-Petition Dates") and (iii) those sample dates from July 1, 2001 through November 30, 2001, as specified in Exhibit "A" ("Pre-Petition Sample Dates"). This Statement of Work includes Appendices A, B and C and Exhibits A and B attached hereto.
References herein to any day for re-run or preparation of settlement file mean beginning that day at 12:00:00 a.m. Pacific Time and ending that day at 11:59:59 p.m. Pacific Time.
2 Generation of Settlement Files for Post-Petition Sample Dates
CSC will first re-run daily settlement files for all active Enron Energy Services, Inc. ("EESI") and Enron Energy Marketing Corp. ("EEMC") California direct access retail power customers for the dates after December 2, 2001 specified in Exhibit "A" (the "Post-Petition Sample Dates"), in accordance with the applicable procedures in Sections 3 through 8 below. CSC estimates that the interim milestone of completing the settlement file re-runs described in the previous sentence and forwarding the related files to EESO will be reached on or before May 2, 2003. CSC and EESO recognize that this work is being done to (i) assist EESO in estimating the magnitude of post-petition under-reporting to the CA ISO using the sample dates specified in Exhibit "A", and (ii) resolve various data issues prior to commencement of re-settlements pursuant to Sections 3 through 8 below. The settlement files submitted from this first re-run are to be shared by EESO with an outside consultant (Charles River Associates) and EESO may share the overall results with other parties. To the extent that completion of the work described in this Section 2 is delayed beyond May 2, 2003 due to EESO's identification of research items (including those research items that are date related) after April 29, 2003 or due to the failure of UDCs to provide feedback to EESO's inquiries by April 29, 2003, then EESO shall pay for such delayed work beyond May 2, 2003 in accordance with Appendix B to this Statement of Work.
3 Generation of Settlement Files for Post-Petition In-Scope Dates
Upon completion of the initial sample settlement files described in Section 2 above, CSC will rerun daily settlement files for the Post-Petition In Scope Dates to include complete and accurate usage data where available in the MDMA database (the "Post-Petition In-Scope Dates Work"). Where usage data is not available in the MDMA database, usage estimates will be included using the estimation methodology in the MDMA application. CSC will forward the re-run settlement files to EESO in MDEF (final file summary only) and Excel (detail) formats, as is currently provided. CSC will re-run the EESI and EEMC daily settlement files simultaneously. Based upon the methodology outlined above, CSC expects to be able to complete ten (10) settlement days each for EESI and EEMC within a business day (i.e. for purposes hereof, Monday through Friday, excluding holidays observed by CSC in Dublin, OH). CSC will re-run settlement files for one calendar month at a time. CSC estimates that the Post-Petition In-Scope Dates Work will be completed no later than July 16, 2003, as detailed in Appendix C.
4 EESO Analysis Tool
EESO will review each re-run settlement file and identify research items using an existing MS Access-based tool ("Analysis Tool") that compares the Excel formatted (detail) settlement data provided by CSC to data in an Oracle-based database ("Power Master") containing account and other information maintained by EESO. Exhibit "B" identifies the format in which EESO's research items will be reported to CSC for review. EESO's Analysis Tool will be used to evaluate each Excel (detail) settlement file provided by CSC and identify research items based upon the following research categories:
• Should settle (date issue)
• Should not settle (date issue)
• Not in Power Master
• Recognized Multiple Meter
• Recognized Multiple Meter with Zero Usage
• Missing Multiple Meter
• Unidentified Multiple Meter
• Second Service Point
• Duplicate (Same account / Same meter)
• Old Meter / New Meter
• Zero usage
• Reasonable Usage Check
EESO will identify each previously unreported research item as a new research item in the research file. If thirteen (13) days of files are batched and received by EESO, in accordance with the timing outlined in Section 6 below, one research file will contain research items for the thirteen (13) days of files, with one row per distinct research item, with the following information specified: the first occurrence date and the number of times in said research file the research item occurs. For example: Account 123 appears to be past the termination date in the first file. It continues to appear in all thirteen (13) files. Account 123 will appear once in the research file, with the first date and number of days it appears thirteen (13) specified.
5 Changes to the EESO Analysis Tool and Power Master Database
EESO will make the Analysis Tool logic available to CSC, at no charge to CSC. If an additional research item category is identified that results in under-reporting, the research item category will be added. If a new research item category is identified that results in an over-reporting, CSC and EESO will jointly assess the materiality of the potential new research item category, and, if both parties agree with the need to make a change, a new research item category will be added. EESO will analyze, review and screen the research items prior to submitting research files to CSC, in order to decrease the amount of research items sent to CSC that have previously been researched by CSC and need no further action based on previous research completed. The goal is that a minimum of eighty percent (80%) of the total research items provided to CSC will require further action. Process and Analysis Tool improvements have been identified and implemented and additional process and Analysis Tool improvements may be identified by EESO and/or CSC and, if mutually agreed by EESO and CSC that the improvements will result in a decrease in the time to review research items, will be implemented. Additionally, EESO will provide CSC with the settlement files, by load zone, for each of the Post-Petition In-Scope Dates that were last submitted by EESO's Scheduling Coordinator, associated with the retail books of business (EESI and EEMC).
The parties agree that the direct access start and end dates for EESI and EEMC California direct access retail power customers, for the Post-Petition In-Scope Dates, Other Post-Petition Dates and Pre-Petition Sample Dates will not be changed by CSC or EESO unless such changes are verified by the applicable Utility Distribution Company ("UDC"), through communication with EESO. EESO will be the primary interface with the UDCs, unless otherwise agreed by CSC and ESSO.
6 EESO Settlement File Review
The process and timing of EESO's review will be as follows: For files received by EESO in Houston, TX before 10:00 a.m. Central Time on a business day (i.e., for purposes hereof, Monday through Friday, excluding holidays observed by EESO in Houston), EESO will review and return such files by midnight Central Time on that same business day, noting items that need to be researched by CSC, excluding items referred to the UDCs for research. For files received by EESO in Houston at or after 10:00 a.m. Central Time on a business day, EESO will review and return such files by midnight Central Time on the next business day, noting items that need to be researched by CSC, excluding items referred to UDCs for research. Notwithstanding the foregoing, EESO will not be obligated to review and return more than thirteen (13) files per book of business (i.e., EESI and EEMC) on any business day. Any files received on a non-business day shall be deemed to have been received by EESO at 8:00 a.m. Central Time on the next occurring business day. EESO will send no more than, and CSC will accept no more than, one (1) research file per business day for settlement files received and analyzed by EESO pursuant to Section 4 above.
7 CSC MDMA Database Changes and Settlement File Re-Run Process
CSC will make necessary corrections based upon those research items for which it is determined by EESO and CSC that further action is required by CSC, for up to three hundred (300) research items per day on the next business day following the date of receipt of the research detail from EESO, excluding items referred to the UDC for research. Files received after 2:00 p.m. Central Time will be deemed received on the next business day, and the research items in said files will be included in the count for the next business day.
CSC will re-run settlement files to reflect any necessary corrections and will provide such re-run files to EESO for review and identification of any further research items. Additionally, CSC will provide feedback to EESO regarding research items for which CSC believes that no further action is required, and if the EESO and CSC ISO Settlement Services Project Directors agree, then EESO will make changes to the Analysis Tool and/or the Power Master to prevent that research item from being reported to CSC in subsequent runs. Such process will continue until all necessary corrections are made by CSC; provided however, that CSC is not obligated to continue to re-run any settlement day where there is an over-reporting usage variance, as determined jointly by the EESO and CSC ISO Settlement Services Project Directors, using settlement file usage and/or another agreed upon method of estimation, of no more than one percent (1%) of total usage per load zone, for the combined EESI and EEMC market. CSC shall be obligated to continue to re-run any daily settlement file where there is an under-reporting usage variance, as determined jointly by the EESO and CSC ISO Settlement Services Project Directors using settlement file usage and/or another agreed upon method of estimation, for any load zone for the combined EESI and EEMC market, until there is a zero (0) usage variance or an over-reporting of no more than one percent (1%) of total usage per load zone, for the combined EESI and EEMC market. The parties agree to work cooperatively in a commercially reasonable manner in accomplishing the joint analysis referred to herein. If during the re-run process, any items are discovered that would indicate that the originally submitted settlement files for any of the Other Post-Petition Dates were incorrect, resulting in an under reporting usage variance, CSC shall re-run such Other Post-Petition Dates at EESO's request and EESO shall pay CSC for such work in accordance with Appendix B (and subject to the terms specified in Appendix B) to this Statement of Work; provided that (a) EESO shall give CSC written notice thereof as soon as is reasonably practicable prior to the anticipated completion of the re-run of Pre-Petition Sample Dates described in Section 9 (which will be as close to two-weeks notice as is reasonably practicable), and (b) CSC shall not be required to commence such work until CSC has completed the Post-Petition In-Scope Dates Work and re-rerun of the Pre-Petition Sample Dates.
8 Generation of Final Settlement Files
Provided that data accuracy is not adversely affected, CSC may clone the MDMA production database and use such cloned MDMA production database to run preliminary or final settlement files for each day of such month and forward all such files to EESO. EESO will review such final settlement file and identify any research items in accordance with the foregoing criteria, and CSC will clear any necessary research items in accordance with Section 7. Simultaneously, along with the running of the final settlement files for the calendar month, CSC may use the current MDMA production database to begin the re-run process described above for the next calendar month.
Once the final run for December 2001 and January 2002 settlement months have been completed and submitted to EESO, EESO will accept or reject the files for the two (2) settlement months pursuant to the Deliverable Receipt/Acceptance Criteria described in Appendix "A". Once settlement files for February 2002 and each month thereafter have been completed and submitted to EESO, EESO will accept or reject the files for each such month pursuant to the Deliverable Receipt/Acceptance Criteria described in Appendix "A". Once acceptance has been received for the settlement files for a settlement month, both parties agree that the settlement files for the "accepted" month will not be run again and CSC will provide the final settlement file(s) for such month to EESO; provided that CSC shall re-run such months at EESO's request and EESO shall pay CSC for such work in accordance with Appendix B (and subject to the terms specified in Appendix B) to this Statement of Work; provided, further, that (a) EESO shall give CSC written notice thereof as soon as is reasonably practicable prior to the anticipated completion of the rerun of the Pre-Petition Sample Dates described in Section 9 (which will be as close to two-weeks notice as is reasonably practicable), and (b) CSC shall not be required to commence such work until CSC has completed the Post-Petition In-Scope Dates Work and re-rerun of the Pre-Petition Sample Dates, unless otherwise mutually agreed by the ISO Settlement Services Project Directors.
9. Generation of Settlement Files for Pre-Petition Sample Dates
Upon completion of the Post-Petition In-Scope Dates Work, CSC will re-run daily settlement files for all active EESI and EEMC California direct access retail power customers for the Pre-Petition Sample Dates in accordance with the applicable procedures in Sections 3 through 8 above. CSC estimates that re-run of the Pre-Petition Sample Dates will take approximately eleven (11) weeks from the completion of the Post-Petition In-Scope Dates Work. Completion of such work is estimated by CSC to be no later than October 3, 2003. The settlement files submitted from the re-run of the Pre-Petition Sample Dates are to be shared by EESO with an outside consultant (Charles River Associates) and EESO may share the overall results with other parties. EESO shall pay CSC for the re-run of the Pre-Petition Sample Dates in accordance with Appendix B to this Statement of Work.
10 Project Management
Issues will be identified, documented, and tracked, using a structured issues-management process. Issues will be discussed on regularly scheduled project conference calls on Monday, Wednesday, and Friday of each week, with all necessary participants.
Appendix A: Deliverables
The following table identifies and briefly describes the products that will be delivered to EESO. Each deliverable is subject to a formal acceptance process, as outlined below.
Deliverable Description Receipt/Acceptance Criteria
1. Daily MDEF Contains the hourly usage EESO Requestor or (his or Settlement Files numbers for accounts that her) designee will (includes UDC Files were active accounts with acknowledge receipt of and Final Settlement EESI/EEMC on the date of files through email. For Files) for the the settlement file in a files received by EESO in Post-Petition In summary format per load Houston, TX before 10:00 Scope Dates, Other zone. a.m. Central Time on a Post-Petition Dates, business day, EESO will and Pre-Petition CSC will provide a Final acknowledge such files by Sample Dates. Daily Settlement File to 3:00 p.m. Central Time on EESO after an entire that same business day. calendar month has been For files received by completed. EESO in Houston at or after 10:00 a.m. Central CSC will provide a Final Time on a business day, Daily Settlement File for EESO will acknowledge each UDC with usage only such files by 10:00 a.m. for that UDC's load Central Time on the next zone(s) (other UDCs' business day. zones will indicate zero usage). At EESO's If a receipt request, CSC will provide acknowledgement is not a separate settlement received by CSC from EESO file to the UDCs for each within the time specified of EESO's books of above, the files will be business (EESI and EEMC) deemed "received". for informational purposes. Additionally, Acceptance Form signed by CSC will make these files the CSC Project Manager available to EESO. or (his or her) designee and the EESO Requestor or (his or her) designee for the Final Daily Settlement Files for each calendar month. EESO shall sign and return (accept or reject) the Acceptance Form to CSC within 2 business days after receipt of the Acceptance Form. Grounds for rejection would be the following: an inability to read the MDEF file, MDEF file is corrupt, or MDEF file usage is not equal to the sum of daily settlement file usage. EESO will notify CSC in writing of the rejection within the time specified above so that CSC may resubmit the file to EESO. If the Acceptance Form is not received by CSC from EESO within 2 business days after receipt, the files will be deemed "accepted."
2. Within five CSC shall provide to EESO Receipt signed by the CSC business days of the a detailed written Project Manager or (his email approval of description of the or her) designee and the this Statement of method(s) of estimation EESO Requestor or (his or Work, CSC shall of data used by CSC in her) designee. provide to EESO a preparation of any detailed written settlement file. This EESO shall acknowledge description of the description shall include receipt of the written method(s) of the methods utilized in description to CSC within estimation of the the settlements file 5 business days after the data used by CSC in generation process to receipt of the written preparation of any estimate data were actual description of the settlement file. usage data is not methodology. If receipt available in the MDMA is not acknowledged by database. EESO within 5 business days, the written description of the methodology will be deemed "received."
3. Daily settlement Contains the daily usage EESO Requestor or (his or files in an MS Excel numbers for accounts that her) designee will format (includes were active accounts with acknowledge receipt of Initial and Final EESO on the date of the files through e-mail. Files) for the settlement file by Post-Petition In individual account. For files received by Scope Dates, Other EESO in Houston, TX Post-Petition Dates, An Initial Daily File before 10:00 a.m. Central and Pre-Petition will be provided to EESO Time on a business day, Sample Dates. for their review and a EESO will acknowledge Final Daily File will be such files by 3:00 p.m. provided after an entire Central Time on that same calendar month has been business day. For files completed. received by EESO in Houston at or after 10:00 Re-run files will be a.m. Central Time on a provided until the business day, EESO will criteria stated in acknowledge such files by Section 7 of this 10:00 a.m. Central Time Statement Of Work are on the next business day. met. If a receipt acknowledgement is not received by CSC from EESO within the time specified above, the files will be deemed "received".
Acceptance Form signed by the CSC Project Manager or (his or her) designee and the EESO Requestor or (his or her) designee for the Final Daily Files for each calendar month.
EESO shall sign and return (accept or reject) the Acceptance Form to CSC within 2 business days after receipt of the Acceptance Form. Grounds for rejection would be the following: an inability to read the Excel file, MDEF file or Excel file is corrupt, or MDEF file or Excel file usage is not equal to sum of daily settlement file usage. EESO will notify CSC in writing of the rejection within the time specified above, so that CSC may re-submit the file to EESO. If the Acceptance Form is not received by CSC from EESO within 2 business days after receipt, the files will be deemed "accepted."
4. Project Closing When all project Project Closing Report Report. deliverables have been Acceptance Form signed by delivered to EESO, EESO's the CSC Project Manager Requestor or their and the EESO Requestor or designee will signify (his or her) designee. acceptance of the project by signing a final EESO shall sign and Project Acceptance return (accept or reject) Form/Release. A report the Acceptance Form to that captures the CSC within 5 days after project's pertinent receipt of the Acceptance information (e.g. general Form. If the Acceptance information, budget, Form is not received by schedule, etc.) and CSC from EESO within 5 confirms completion of days after receipt, the the project will be project will be deemed provided. "complete and accepted".
Appendix B: Pricing And Related Terms
1. Except as set forth below in this Appendix B, CSC shall perform the ISO Settlement Services Project at CSC's expense without any additional charge to EESO (including, without limitation, any incremental labor hours) irrespective of the date of completion
(a) Within two (2) business days after approval by the Bankruptcy Court for the Southern District of New York of the Stipulation and Order to which this Statement of Work is attached, EESO shall pay CSC the sum of $183,470 as consideration for CSC's performance of the ISO Settlement Services Project.
(b) To the extent that CSC's re-run of Post-Petition Sample Dates is delayed beyond May 2, 2003 due to EESO's identification of research items (including those research items that are date related) after April 29, 2003 or due to the failure of UDCs to provide feedback to EESO's inquiries by April 29, 2003, then EESO shall pay CSC for such delayed work beyond May 2, 2003 at the Agreed Rate (defined below).
(c) To the extent that EESO or persons or entities other than CSC or its contractors cause the Post-Petition In-Scope Work to be delayed beyond July 16, 2003, EESO shall pay CSC for such work beyond July 16, 2003 at the Agreed Rate.
(d) To the extent that CSC is required to re-run Other Post-Petition Dates pursuant to Section 7, EESO shall pay CSC for such work at the Agreed Rate.
(e) To the extent that CSC is required to re-run an "accepted" month pursuant to Section 8, EESO shall pay CSC for such work at the Agreed Rate.
(f) To the extent that CSC's re-rerun of Pre-Petition Sample Dates pursuant to Section 9 extends beyond six calendar weeks after commencement of such work (the "Initial Period"), EESO shall pay CSC for such work occurring after the Initial Period at the Agreed Rate by prepaying CSC for two weeks of work at a time one week in advance; provided, that if such work is completed prior to the end of a period for which EESO has prepaid CSC, then CSC shall, within two (2) business days after such completion of work, repay to EESO the portion of the prepayment applicable to the period occurring after such completion of work, prorated on a five-day business-week basis. Notwithstanding the foregoing, the Initial Period shall be extended on a day-for-day basis for each day that CSC is delayed in beginning or prosecuting such work due to delay caused by CSC and its contractors (including delay in completion of the Post-Petition In-Scope Work beyond July 16, 2003 caused by CSC and its contractors).
2. As used herein, "Agreed Rate" means (i) for all work performed through and including October 31, 2003 (the "Agreed Rate End Date"), an aggregate amount of $36,694 (including with respect to all benefits and any other charges) per five-day business-week based on the level of productivity currently being provided by CSC and its contractors, and (ii) for all work performed after the Agreed Rate End Date, a mutually agreed commercially reasonable amount; provided that (a) all work performed after the Agreed Rate End Date is subject to resource availability, however, CSC shall use commercially reasonable efforts to procure resources necessary to continue such work; and (b) the Agreed Rate End Date shall be extended for a period equivalent to any period of delay in completion of the ISO Settlement Services Project caused by CSC and its contractors.
3. CSC shall not be required to perform any activity pursuant hereto which is outside of the scope of the ISO Settlement Services Project, which includes, but is not limited to the following:
(a) Any scope items not listed in this Statement of Work or otherwise described in this Statement of Work as being part of the ISO Settlement Services Project;
(b) Travel required by CSC project resources (unless necessitated solely by actions or omissions by CSC);
(c) Provision for or development of deliverables not included in this Statement of Work (unless necessitated solely by actions or omissions by CSC);
(d) A material change in responsibilities assigned in this Statement of Work between CSC and EESO that require CSC to perform additional functions;
(e) Any rework of completed activities or accepted Deliverables including re-running of files that have already been deemed "accepted", except as provided in Appendix A;
(f) Any work on the Post-Petition Sample Dates beyond May 2, 2003 due to EESO's identification of research items (including those research items that are date related) after April 29, 2003 or due to the failure of UDCs to provide feedback to EESO's inquiries by April 29, 2003; provided, however EESO and CSC recognize that the the Post-Petition Sample Dates will be re-run in the normal process of the Post-Petition In Scope Dates Work;
(g) Re-runs requested by EESO which were not jointly determined as necessary by the EESO and CSC ISO Settlement Services Project Directors pursuant to Section 7; and
(h) Development of proposals by CSC to perform out of scope work.
Exhibit "A" To ISO Settlement Service Project Statement Of Work Post-Petition Sample Dates
Day 1 Day 2 Day 3 Day 4 Day Date Day Date Day Date Day Date 1 December 2001 2 January 2002 3 February 2002 4 March 2002 5 April 2002 6 May 2002 7 June 2002 8 July 2002 9 August 2002 10 September 2002 11 October 2002 12 November 2002
Thursday 27-Dec-01 Sunday 16-Dec-01 Monday 3-Dec-01 Saturday 15-Dec-01 Thursday 3-Jan-02 Tuesday 22-Jan-02 Sunday 20-Jan-02 Saturday 19-Jan-02 Saturday 23-Feb-02 Tuesday 19-Feb-02 Friday 8-Feb-02 Sunday 3-Feb-02 Tuesday 12-Mar-02 Wednesday 20-Mar-02 Sunday 31-Mar-02 Saturday 23-Mar-02 Sunday 21-Apr-02 Tuesday 30-Apr-02 Wednesday 10-Apr-02 Saturday 20-Apr-02 Thursday 2-May-02 Saturday 11-May-02 Monday 20-May-02 Sunday 26-May-02 Wednesday 12-Jun-02 Monday 24-Jun-02 Saturday 1-Jun-02 Sunday 23-Jun-02 Wednesday 31-Jul-02 Sunday 7-Jul-02 Saturday 27-Jul-02 Friday 12-Jul-02 Thursday 1-Aug-02 Wednesday 21-Aug-02 Saturday 3-Aug-02 Sunday 25-Aug-02 Monday 16-Sep-02 Wednesday 4-Sep-02 Sunday 22-Sep-02 Saturday 21-Sep-02 Monday 7-Oct-02 Thursday 24-Oct-02 Sunday 13-Oct-02 Saturday 12-Oct-02 Thursday 7-Nov-02 Sunday 17-Nov-02 Tuesday 19-Nov-02 Saturday 30-Nov-02