EXHIBIT EX-10.6
Dated 30th March, 1990
THE GENERATORS
named herein
- and -
THE SUPPLIERS
named herein
- and -
ENERGY SETTLEMENTS AND INFORMATION SERVICES
as Settlement System Administrator
- and -
ENERGY POOL FUNDS
ADMINISTRATION LIMITED
as Pool Funds Administrator
- and -
THE NATIONAL GRID COMPANY plc
as Grid Operator and Ancillary Services Provider
- and -
SCOTTISH POWER plc
and
ELECTRICITE DE FRANCE, SERVICE NATIONAL
as Externally
Interconnected Parties
- and -
THE OTHER PARTIES
named herein
--------------------------------------------
POOLING AND SETTLEMENT
AGREEMENT
for the Electricity Industry in
England and Wales
(as amended and restated at 2 December 1994)
--------------------------------------------
Main Text Schedules 1 - 8 and 10 - 21
Page
----
CONTENTS
PART I: PRELIMINARY 3
1. Definitions and Interpretation 3
2. The Effective Date 30
3. Additional Parties 30
PART II: OBJECTS, REVIEW AND PRIORITY 35
4. Objects and Purpose of the Agreement 35
5. Transitional Arrangements and Reviews 35
6. Entrenched Provisions, Inconsistencies and Conflicts 45
PART III: POOL MEMBERSHIP AND GENERAL MEETINGS 51
7. Introduction 51
8. Pool Membership 52
9. General Meetings 59
10. Proceedings at General Meetings 63
11. Voting 65
12. Proxies 71
13. Matters reserved to the General Meeting: Class Rights 73
PART IV: THE EXECUTIVE COMMITTEE 78
14. Establishment of the Executive Committee 78
15. Membership of the Executive Committee 79
16. Pool Chairman 84
17. Chief Executive, Secretarial and Secretary 86
18. Proceedings of the Executive Committee 89
19. Conduct of Executive Committee Meetings 91
20. Delegation 92
21. Vacation of Office by Committee Members 94
22. Voting 95
23. Committee Members' Responsibilities and Protections 98
24. Powers of the Executive Committee 101
PART V: LIMITATION OF LIABILITY 106
25. Limitation of Liability 106
i
Page
----
PART VI: THE SETTLEMENT SYSTEM ADMINISTRATOR 108
26. Appointment 108
27. Resignation and Removal 108
28. Transfer of Responsibilities and Assets 111
PART VII: THE SETTLEMENT SYSTEM ADMINISTRATOR'S
RESPONSIBILITIES 115
29. Responsibilities 115
30. Insurance Responsibilities 119
31. Performance of Duties 121
[SUBSTITUTE PAGE TO COME]
PART XV: METERING 173
60. Metering 173
PART XVI: POOL CIVIL EMERGENCIES 197
61. Pool Civil Emergencies 197
PART XVII: TRADING SITE 208
62. Trading Site 208
PART XVIII: THE POOL FUNDS ADMINISTRATOR, BILLING
AND SETTLEMENT 209
63. The Pool Funds Administrator 209
64. Procedures Manual 213
65. Billing and Settlement 214
PART XIX: DEFAULT, TERM AND TERMINATION 215
66. Default 215
67. Term and Termination 220
ii
Page
----
PART XX: CONFIDENTIALITY 222
68. Definitions and Interpretation 222
69. Confidentiality for NGC and its Subsidiaries 223
70. Confidentiality other than for NGC and its Subsidiaries 228
71. Release of Information 229
PART XXI: THE PARTICIPATION OF NGC 232
72. The Participation of NGC 232
73. Intra-Company Contracts 232
PART XXII: MISCELLANEOUS 234
74. Force Majeure 234
75. Notices 235
76. Assignment 236
77. Counterparts 236
78. Waivers; Remedies Not Cumulative 236
79. Severance of Terms 237
80. Entire Agreement 237
81. Language 237
82. Restrictive Trade Practices Act 1976 238
83. Arbitration 238
84. Jurisdiction 239
85. Governing Law 240
86. The Settlement System Administrator's Contract 240
Page
----
SCHEDULES 242
1. Part I The Generators 242
Part II The Suppliers 244
Part A: Public Electricity Suppliers 244
Part B: Second Tier Suppliers 245
Part C: Others 247
2. The Other Parties 248
3. Form of Accession Agreement 250
iii
Page
----
4. The Accounting Procedure 252
Part A: Preliminary 254
Part B: The Provision of Financial Information 261
Part C: The Settlement System Administrator's 267
Charges
Part D: Allocation of Charges 275
Part E: [Not Used] 279
Part F: Pro-forma Budget 280
Part G: Pro-forma Statement of Costs 286
Part H: Pro-forma Statement of Charges 288
5. Form of Admission Application 289
6. Form of Pool Membership Application 292
7. Form of Escrow Agreement 295
8. The Hardware and Software 302
Part A: The Hardware 302
Part B: Developed Software 303
Part C: Licensed Software 303
9. The Pool Rules 304
Preamble 308
Part I: Definitions and Interpretation 312
Part II: Data Input to Settlement 322
Part III: Computation of Payments in Settlement 359
Part IV: Interconnectors 472
Part V: Special Provisions 484
Part VI: Settlement Runs 501
Appendix 1: Part I: Definitions 516
Part II: List of Acronyms 626
Appendix 2: Procedures for running GOAL 635
Appendix 3: Forms and Terms to be used when 673
entering Despatch Instructions into PORTHOLE
Appendix 4: Reporting Requirements 674
Appendix 5: Variables established by reference to PORTHOLE 691
Appendix 6: Procedures for the Aggregation of Metered Data 693
Appendix 7: Short-Term Modifications 715
10. Form of Resignation Notice 810
11. Billing and Settlement 812
Part 1: Preliminary 813
Part 2: Establishment of Systems 819
Part 3: Security Cover and Credit Monitoring 831
Part 4: Billing and Paying Procedures 836
iv
Page
----
Annex 1: Form of Advice Note 859
Annex 2: Form of Confirmation Notice 860
Annex 3: Part 1: Form of Settlement Account
Designation 861
Part 2: Form of Change of Settlement
Account 862
Annex 4: Form of Letter of Credit 863
12. Transitional Arrangements 864
13. Contributory Shares 872
14. Membership of the Executive Committee: Public 874
Electricity Suppliers and Independent Suppliers
15. The Pool Funds Administrator's Contract 880
Annex 1: PFA Budget for the 1992 PFA Accounting
Period 910
Annex 2: Pro-Forma Statement of Charges 911
Annex 3: Pro-Forma Statement of Costs and Fees 912
Annex 4: Existing Funds Transfer Software 913
Part A: Beneficially Owned 913
Part B: Licensed 914
Annex 5: Escrow Arrangements 915
16. Matters requiring consent of the Settlement System Administrator 917
17. Trading Sites 919
Part A: General 919
Part B: Procedures 919
Part C: Trading Site Applications 922
Part D: Additional Provisions 923
18. The Ancillary Services Accounting Procedure 924
Annex: Part 1: ASP Budget for the First Accounting Period 931
Part 2: Pro-Forma Statement of Costs 932
Part 3: Pro-Forma Statement of Charges 933
19. Objective and Scope of the Scheduling and Despatch Review 934
20. Accountable Interest 936
21. Meter Operator Schedule 939
ANNEX: Issue C Pool Rules
v
THIS AGREEMENT is made on 30th March, 1990 (as amended and restated pursuant to
a Supplemental Deed dated 22nd April, 1994)
BETWEEN:
(1) THE PERSONS whose names, registered numbers and registered or principal
offices are set out in Part I of Schedule 1;
(2) THE PERSONS whose names, registered numbers and registered or principal
offices are set out in Part II of Schedule 1;
(3) NGC SETTLEMENTS LIMITED (registered number 2444282) whose registered
office is situated at Fairham House, Green Xxxx, Xxxxxxx, Nottingham
NG11 9LN as Settlement System Administrator;
(4) ENERGY POOL FUNDS ADMINISTRATION LIMITED (registered number 2444187)
whose registered office is situate at 000 Xxxx Xxxxxx, Xxxxxx XX0 0XX as
Pool Funds Administrator;
(5) THE NATIONAL GRID COMPANY plc (registered number 2366977) whose
registered office is situate at National Grid House, Xxxxx Corner Road,
Coventry CV4 8JY as Grid Operator and Ancillary Services Provider;
(6) SCOTTISH POWER plc (registered number 117120) whose principal office is
situate at 0 Xxxxxxxx Xxxx, Xxxxxxx X0 0XX, Xxxxxxxx as an Externally
interconnected Party;
(7) ELECTRICITE DE FRANCE, SERVICE NATIONAL whose principal office is
situate at 0 Xxx xx Xxxxxxx, 00000 Xxxxx, Xxxxxx as an Externally
Interconnected Party; and
(8) THE OTHER PARTIES whose names, registered numbers and registered or
principal offices are set out in Schedule 2.
WHEREAS:
(A) it is a Condition of the NGC Transmission License that, subject to its
removal or resignation as Settlement System Administrator hereunder, NGC
shall implement, maintain and operate a settlement system which will
provide (inter alia) for the calculation of any payments which become
due to or owing by Authorized Electricity Operators in respect of sales
and purchases of electricity under the terms of this Agreement and such
License further provides that NGC may comply with its said obligations
by participating in this Agreement in the manner provided in such
License
1
(B) it is a Condition of the Generation License granted to each of the
Founder Generators in England and Wales requiring such a License that
the licensee shall be a party to and a pool member under, and shall
comply with the provisions of, this Agreement insofar as the same shall
apply to it in its capacity as a party to this Agreement and/or as a
pool member being a generator of electricity as the case may be;
(C) it is a Condition of the PES License granted to each of the Founder
Suppliers whose names are set out in Part A of Part II of Schedule 1
that the licensee shall be a pool member under, and comply with the
provisions of, this Agreement;
(D) it is a Condition of the Second Tier Supply License granted to each of
the Founder Suppliers whose names are set out in Part B of Part II of
Schedule 1 that the licensee shall be a pool member under, and comply
with the provisions of, this Agreement insofar as the same shall apply
to it in its capacity as a private electricity supplier (as that
expression is defined in section 17(1) of the Act);
(E) this Agreement sets out, inter alia, the rules and procedures for the
operation of an electricity trading pool and for the operation of a
settlement system (including the calculation of payments due) and in
compliance with the conditions of their respective Licenses those
parties subject to such conditions have agreed to become parties hereto
with the intent that this Agreement shall be and shall remain approved
by the Director; and
(F) in relation to this Agreement each of the Secretary of State and the
Director enjoys the rights, powers and authorities conferred upon him
inter alia by the Act and the Licenses.
NOW IT IS XXXXXX AGREED as set out on the following pages of this Agreement.
2
PART I
PRELIMINARY
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: in this Agreement (including the Recitals and the
Schedules), except where the context otherwise requires:
"Accession Agreement" means an accession agreement in or substantially
in the form set out in Schedule 3 or in such other form (to which the
Settlement System Administrator has no reasonable objection) as the
Executive Committee may for the time being and from time to time
approve;
"Accountable Interest" has the meaning given that expression in Schedule
20;
"Accounting Date" means, in relation to any Accounting Period, the last
day of such Accounting Period;
"Accounting Period" means each successive period of 12 months beginning
on 1st April in each year or of such other length and/or beginning on
such other date as may be determined in accordance with the terms
hereof, provided that the first such period shall begin on and include
31st March, 1990 and shall end on and include 31st March, 1991;
"Accounting Procedure" means the accounting procedure set out in
Schedule 4, as amended, varied or substituted from time to time in
accordance with the terms hereof;
"Act" means the Electricity Act 1989;
"Active Energy" means the electrical energy produced, flowing or
supplied by an electric circuit during a time interval, and being the
integral with respect to time o the instantaneous power, measured in
units of watt-hours or standard multiples thereof, that is:
1000Wh = 1kWh
1000kWh = 1MWh
1000MWh = 1GWh
1000GWh = 1TWh;
"Active Power" means the product of voltage and the in-phase component
of alternating current measured in units of xxxxx and standard multiples
thereof, that is:
1000 Xxxxx = 1kW
3
1000kW = 1MW
1000MW = 1GW
1000GW = 1TW;
"Admission Application" means an application in or substantially in the
form set out in Schedule 5 or in such other form as the Executive
Committee may for the time being and from time to time approve;
"Agreed Procedure" means each of the agreed procedures specified in the
Agreed Procedures Index and which is agreed to be treated as an Agreed
procedure for the purposes of this Agreement either:
(a) by the Executive Committee and the Settlement System
Administrator and (where the agreed procedure imposes
obligations on the Grid Operator) the Grid Operator; or
(b) where such agreed procedure concerns the duties and
responsibilities of the Pool Funds Administrator, by the
Executive Committee and the Pool Funds Administrator
as the same
(i) may be amended or substituted from time to time by the Executive
Committee with the prior written consent of the Settlement
System Administrator and (where such Agreed Procedure imposes
obligations on the Grid Operator) the Grid Operator (in each
case, such consent not to be unreasonably withheld or delayed);
or
(ii) shall be amended or substituted from time to time by the
Executive Committee at the request of the Settlement System
Administrator and with the prior written consent of the
Executive Committee and (where such Agreed Procedure imposes
obligations on the Grid Operator) the Grid Operator (in each
case, such consent not to be unreasonably withheld or delayed);
or
Provided that the reference to the Grid Operator in this definition
shall be construed as if it were a reference to such term prior to the
creation of Meter Operator Parties and the associated amendments to this
Agreement, but this shall be without limitation to any right to agree
any adoption, amendment or substitution under this definition;
"Agreed Procedures Index" means an index of agreed procedures agreed to
be treated as Agreed Procedures in accordance with and for the purposes
of this Agreement;
"Agreement" means this Agreement (including the Schedules), as amended,
varied, supplemented, modified or suspended from time to time in
accordance with the terms hereof;
4
"Ancillary Service" means a System Ancillary Service and/or a Commercial
Ancillary Service, as the case may be;
"Ancillary Services Agreement" means an agreement between a User and the
Ancillary Services Provider for the payment by the Ancillary Services
Provider to that User in respect of the provision by such User of
Ancillary Services;
"Ancillary Services Business" means the business relating to Ancillary
Services carried on by the Ancillary Services Provider;
"Ancillary Services Provider" mans the person who for the time being and
from time to time is required by the terms of a Transmission License to
contract for Ancillary Services;
"Apparatus" means all equipment in which electrical conductors are used
or supported or of which they may form a part;
"Approved Recommendation" has the meaning given that expression in
Clause 5.8;
"ASP Accounting Procedure" means the accounting procedure set out in
Schedule 18, as amended, varied or substituted from time to time in
accordance with the terms hereof;
"Authorized Electricity Operator" means any person who is authorized
under the Act to generate, transmit or supply electricity and shall
include any person transferring electricity to or from England and Wales
across an interconnector (as such term is used in the NGC Transmission
License), other than the Grid Operator in its capacity as operator of
the NGC Transmission System;
"Banking System" has the meaning given that expression in Section 1.1 of
Schedule 11;
"Billing System" has the meaning given that expression in Section 1.1 of
Schedule 11;
"BPS Goal" has the meaning given that expression in Appendix 2 of
Schedule 9;
"British Grid Systems Agreement" means the agreement of that name made
or to be made between NGC, Scottish Hydro-Electric PLC and Scottish
Power plc inter alia regulated the relationship between their respective
grid systems;
"Budget" has the meaning given that expression in Part A of Schedule 4;
"Bulk Supply Point" means any or (as the context may require) a
particular point of supply where Metering Equipment for the purposes of
the Bulk Supply Tariff is or
5
would have been located and, in the event of any dispute as to location,
as determined in accordance with Clause 83;
"Bulk Supply Tariff" means the basis of payment for Active Energy as
levied by the Generating Board prior to the Effective Date;
"Central Despatch" means the process of Scheduling and issuing direct
instructions by the Grid Operator referred to in paragraph 1 of
Condition 7 of the NGC Transmission License and "Centrally Despatched"
shall be construed accordingly;
"Change Management Policies" means the policies, procedures and
guidelines for the co-ordination by the Settlement System Administrator
of the implementation of changes to the Settlement System entitled
respectively "Change Management Policy", "Settlement Change Co-ordinator
Operating Procedures" and "Change Management Implementation Guidelines"
in the form initialled for the purposes of identification as at 29th
November, 1991 by or on behalf of the Executive Committee and the
Settlement System Administrator, as the same have been or may be amended
from time to time in accordance with the terms of the Initial Settlement
Agreement or this Agreement;
"Chief Executive" has the meaning given that expression in Clause
17.1.1;
"Code of Practice" means each of the codes of practice in relation to
any Metering Equipment or any part or class thereof which are specified
in the Synopsis of Metering Codes, as the same may be amended or
substituted from time to time by the Executive Committee with the
agreement or approval of:
(i) in the case of any Code of Practice in respect of Metering
Equipment in respect of which it is the Operator, the Grid
Operator;
(ii) in the case of any Code of Practice in respect of Metering
Equipment relating to Reactive Energy, the Ancillary Services
Provider;
(iii) in the case of any change to any Code of Practice prior to lst
April, 1994 in respect of standards of accuracy of Metering
Equipment required for Second Tier Customers up to (and
including) 1MW, the Suppliers in separate general meeting; and
(iv) in the case of any change to any Code of Practice prior to lst
April, 1998 in respect of standards of accuracy of Metering
Equipment required for Second Tier Customers up to (and
including) 100kW, the Suppliers in separate general meeting,
6
(provided that, prior to the date on which the transitional arrangements
regarding metering of Reactive Power at Grid Supply Points are brought
into effect (the "RP Date") in the case of a Code of Practice or part
thereof which relates to Reactive Power metering at Grid Entry Points,
such Code or part thereof may only be amended or substituted by
agreement between the Ancillary Services Provider and all Committee
Members), and any other code of practice which is agreed from time to
time to be treated as a Code of Practice for the purposes of this
Agreement by the Executive Committee (or, where appropriate, prior to
the RP Date all Committee Members) and, where appropriate, the Grid
Operator and/or the Ancillary Services Provider and/or the Suppliers;
"Commercial Ancillary Services" means Ancillary Services, other than
System Ancillary Services, utilized by the Grid Operator in operating
the Total System if a User has agreed to provide them under a
Supplemental Agreement with payment being dealt with under an Ancillary
Services Agreement or, in the case of Externally Interconnected Parties
or External Pool Members, under any other agreement;
"Commissioned" means, in relation to any Plant or Apparatus connected to
the NGC Transmission System or to any External Interconnection or any
Distribution System, commissioned for the purposes of the Connection
Agreement relating to such Plant or Apparatus;
"Committee Member" means a member of the Executive Committee;
"Communications Equipment" means, in respect of any Metering Equipment,
the terminating equipment (which may include a modem) necessary to
convert data from such Metering Equipment into a state for transmission
to the Settlement System Administrator across the communications link
provided pursuant to Clause 60.6.3(a), but it shall not include an
Outstation;
"Competent Authority" means the Secretary of State, the Director and any
local or national agency, authority, department, inspectorate, minister,
ministry, official or public or statutory person (whether autonomous or
not) of, or of the government of, the United Kingdom or the European
Community;
"Computer Systems" means all and any computer systems used by the
Settlement System Administrator and required in connection with the
operation of the Settlement System;
"Connection Agreements" means the Master Connection and Use of System
Agreement, the Supplemental Agreements, the Supplier's Connection
Agreements, the Supplier's Use of System Agreements and the
Interconnection Agreements, and "Connection Agreement" means any or (as
the context may require) a particular one of them;
7
"Connection Point" means a Grid Supply Point or Grid Entry Point, as the
case may be;
"Consumer Metered Demand" has the meaning given that expression in Part
I of Appendix 1 to Schedule 9;
"Contributory Share" means, in relation to any Pool Member, the
Contributory Share for the time being and from time to time of such Pool
Member calculated in accordance with Schedule 13;
"Control" has the meaning set out in section 840 of the Income and
Corporation Taxes Act 1988 and "Controlled" shall be construed
accordingly;
"Custodian" has the meaning given that expression in Clause 45.1;
"Customer" means a person to whom electrical power is provided (whether
or not he is the provider of such electrical power);
"De-energization" means the movement of any isolator, breaker or switch
or the removal of any fuse whereby no electricity can flow to or from
the relevant User System through the User's Plant or Apparatus connected
to such User System and, in relations to any External Pool Member, the
termination of such External Pool Member's rights to use any relevant
External Interconnection;
"Default Calling Creditor" means any Pool Creditor, the Settlement
System Administrator and the Pool Funds Administrator;
"Default Interest Rate" has the meaning given the expression in Section
1.1 of Schedule 11;
"Defaulting Pool Member" has the meaning given that expression in Clause
66.3.1;
"Despatch" means the issue by the Grid Operator of instructions for
Generating Plant and/or Generation Trading Blocks to achieve specific
Active Power (and, in relation to Generating Plant, Reactive Power or
target voltage) levels within their Generation Scheduling and Despatch
Parameters or Generation Trading Block Scheduling and Despatch
Parameters, as the case may be, and by stated times;
"Development Policies" means the policies, procedures and practices for
the development of the Computer Systems in the forms initialled for the
purpose of identification as at 29th November, 1991 by or on behalf of
the Executive Committee and the Settlement System Administrator, as the
same have been or may be amended from time to time in accordance with
the terms of the Initial Settlement Agreement or this Agreement;
8
"Directive" includes any present or future directive, requirement,
instruction, direction or rule of any Competent Authority (but only, if
not having the force of law, if compliance with the Directive is in
accordance with the general practice of persons to whom the Directive is
addressed) and includes any modification, extension or replacement
thereof then in force;
"Director" means the Director General of Electricity Supply appointed
for the time being pursuant to section 1 of the Act;
"Distribution Code" means the Distribution Code required to be drawn up
by each Public Electricity Supplier and approved by the Director, as
from time to time revised with the approval of the Director;
"Distribution System" means the system consisting (wholly or mainly) of
electric lines owned or operated by a Public Electricity Supplier and
used for the distribution of electricity from Grid Supply Points or
Generating Units or other entry points to the point of delivery to
Customers or other Users and includes any Remote Transmission Assets (as
defined in the Grid Code) operated by such Public Electricity Supplier
and any Plant and Apparatus and meters owned or operated by such Public
Electricity Supplier in connection with the distribution of electricity,
but does not include any part of the NGC Transmission System;
"EdF Documents" means any agreement for the time being and from time to
time made between NGC and Electricite de France, Service National
relating to the use or operation of relevant External Interconnection;
"Effective Date" means 2400 hours on 30th March, 1990;
"Effective Date of Termination" shall mean 2400 hours on 31st March,
1993;
"Electricity" means Active Energy and Reactive Energy;
"Electricity Arbitration Association" means the unincorporated members'
club of that name formed inter alia to promote the efficient and
economic operation of the procedure for the resolution of disputes
within the electricity supply industry by means of arbitration or
otherwise in accordance with its arbitration rules;
"Embedded" means having a direct connection to a Distribution System or
the System of any other User to which Customers and/or Power Stations
are connected, such connection being either a direct connection or a
connection via a busbar of another User or of NGC (but with no other
connection to the NGC Transmission System);
9
"Embedded Non-Franchise Site" means:
(i) a Site which is Embedded and which is at the point of
connection to a Second Tier Customer; or
(ii) a Site which is Embedded in respect of which there is a
Potential Operator where the customer to which that Site
is at a point of connection is eligible to receive
supplies from a Second Tier Supplier in the period
between 1st April, 1994 and 31st March, 1998;
"Equipment Owner" means, in relation to a Metering System, the person
which is the owner of that Metering System;
"Escrow Agreement" has the meaning given that expression in Clause 45.1;
"Event of Default" means any event declared as such pursuant to Clause
66.1.1 or 66.2.1, as the case may be;
"Executive Committee" means the committee established pursuant to Clause
14.1;
"Export" means, in respect of any Party, a flow of electricity from the
Plant or Apparatus of such Party to the Plant or Apparatus of another
Party and, in relation to any Party which is an External Pool Member,
the External Interconnection in respect of which that Party has the
right to deliver or take electricity to or from the NGC Transmission
System shall be treated as the Plant or Apparatus of such Party and the
verb "Export" and its respective tenses shall be construed accordingly;
"External Interconnection" means Apparatus for the transmission of
electricity to or from the NGC Transmission System into or out of an
External System;
"Externally Interconnected Party" means a person operating an External
System which is connected to the NGC Transmission System by an External
Interconnection (which person may or may not also be an External Pool
Member);
"External Pool Member" means a Party supplying electricity to or taking
electricity from the NGC Transmission System through an External
Interconnection and which has been or (where appropriate) is to be
admitted as a Pool Member in the capacity of a Generator and/or a
Supplier;
"External System" means, in relation to an Externally Interconnected
Party, the transmission or distribution system which it owns or operates
and any Apparatus or Plant which connects that system to the External
Interconnection and which is owned or operated by such Externally
Interconnected Party;
10
"Final Metering Scheme" means a national metering scheme to be installed
in accordance with the relevant Codes of Practice and to come into
effect on the FMS Date;
"First Quarter" means, in respect of any year, the months of January,
February and March;
"FMS Codes of Practice" means the Codes of Practice B, C, E, J, K1 and
K2 and, to the extent that they relate to Metering Equipment the date
derived from which was not used as Settlement Metering Data immediately
prior to the FMS Date, F and G, and Codes of Practice 1, 2, 3, 4 and 5;
"FMS Date" means 1st April, 1993;
"FMS Metering Equipment" means Metering Equipment comprising a Metering
System at or in relation to the commercial boundary in accordance with
paragraph 7.1.2 of Schedule 21 in relation to the requirements to be met
from the FMS Date;
"FMS Trading Date" means 10th January, 1994;
"Following Quarter" means, in respect of any Quarter Day or Quarter, the
period of three months immediately following such Quarter Day or
Quarter;
"Force Majeure" means, in relation to any Party, any event or
circumstance which is beyond the reasonable control of such Party and
which results in or causes the failure of that Party to perform any of
its obligations under this Agreement including act of God, strike,
lockout or other industrial disturbance, act of the public enemy, war
declared or undeclared, threat of war, terrorist act, blockade,
revolution, riot, insurrection, civil commotion, public demonstration,
sabotage, act of vandalism, lightning, fire, storm, flood, earthquake,
accumulation of snow or ice, lack of water arising from weather or
environmental problems, explosion, fault or failure of Plant and
Apparatus (which could not have been prevented by Good Industry
Practice), governmental restraint, Act of Parliament, other legislation,
bye-law and Directive (not being any order, regulation or direction
under section 32, 33, 34 or 35 of the Act) provided that lack of funds
shall not be interpreted as a cause beyond the reasonable control of
that Party. For the avoidance of doubt, Force Majeure shall not apply in
respect of the Settlement System Administrator where and to the extent
that the Settlement System Administrator can perform its obligations
under this Agreement by using the back-up arrangements referred to in
Clause 29.2 or by acting in accordance with Clause 52 or Section 31 of
Schedule 9;
"Founder Generators" means the parties to this Agreement of the first
part at 30th March, 1990;
11
"Founder Suppliers" means the parties to this Agreement of the second
part at 30th March, 1990;
"Fourth Quarter" means, in respect of any year, the months of October,
November and December;
"Fuel Security Code" means the document of that title designated as such
by the Secretary of State, as from time to time amended;
"Funds Transfer Agreement" has the meaning given that expression in
Section 1.1 of Schedule 11;
"Funds Transfer Business" has the meaning given that expression in
Section 1.1 of Schedule 11;
"Funds Transfer Hardware" has the meaning given that expression in
Section 1.1 of Schedule 15;
"Funds Transfer Software" has the meaning given that expression in
Section 1.1 of Schedule 15;
"Funds Transfer System" has the meaning given that expression in Section
1.1 of Schedule 11;
"The Generating Board" has the meaning given that expression in the Act;
"Generating Plant" means a Power Station subject to Central Despatch;
"Generating Unit" means any Apparatus which produces electricity and, in
respect of an External Pool Member, means a Generation Trading Block;
"Generation License" means a license granted or to be granted under
section 6(1)(a) of the Act;
"Generation Scheduling and Despatch Parameters" means those parameters
listed in Appendix A1 to SDC1;
"Generation Trading Block" means a notional Centrally Despatched
Generating Unit of an External Pool Member treated as such for the
purposes of the Grid Code;
"Generation Trading Block Scheduling and Despatch Parameters" means
those parameters listed in Appendix A1 to SDC1 relating to Generation
Trading Blocks;
12
"Generator" means:
(i) a person who generates electricity under license or exemption
under the Act; or
(ii) a person who is an External Pool Member who delivers electricity
or on whose behalf electricity is delivered to the NGC
Transmission System; or
(iii) a person who is acting as the agent for any such person who is
referred to in paragraph (i) or (ii) above,
and, in any such case, for the time being party to this Agreement, and:
(a) who is a Founder Generator; or
(b) who was admitted as a Party in the capacity of a Generator; or
(c) who, in accordance with Clause 3.10, has changed capacity(ies)
such that it participates as a Party in the capacity of a
Generator,
and, where the expression is used in Part III or Part IV, who is also or
(where appropriate) is to become a Pool Member;
"Generic Dispensation" shall have the meaning ascribed thereto in
paragraph 14.1(b) of Schedule 21;
"Genset Metered Generation" has the meaning given that expression in
Part I of Appendix 1 to Schedule 9;
"Gigawatt" means 10000MW;
"GOALPOST" has the meaning given that expression in the Pool Rules;
"Good Industry Practice" means, in relation to any undertaking and any
circumstances, the exercise of that degree of skill, diligence, prudence
and foresight which would reasonably and ordinarily be expected from a
skilled and experienced operator engaged in the same type of undertaking
under the same or similar circumstances;
"Grid Code" means the Grid Code drawn up pursuant to the Transmission
License, as from time to time revised in accordance with the
Transmission License;
"Grid Code Review Panel" has the meaning given that expression in the
Grid Code;
13
"Grid Entry Point" means the point at which a Power Station which is not
Embedded connects to the NGC Transmission System;
"Grid Operator" means the person who for the time being and from time to
time is required by the terms of a License, inter alia, to implement the
Grid Code;
"Grid Supply Point" means the point of supply from the NGC Transmission
System to Public Electricity Suppliers or to other Users with User
Systems with Customers connected to them or Non-Embedded Customers;
"GW" means Gigawatt;
"GWh" means Gigawatt-hour;
"Hardware" means at any time the computer equipment and accessories
specified in Schedule 8 or such other computer equipment and accessories
used by the Settlement System Administrator on or in connection with
which the Software Functions or is intended to function at such time
(other than the Second Tier Hardware);
"Host PES" means, in respect of a Metering System, either:
(i) the Public Electricity Supplier to whose Distribution System
such Metering System is connected; or
(ii) where such Metering System is connected directly to the NGC
Transmission System, the Public Electricity Supplier whose
Consumer Metered Demand determined in accordance with the Pool
Rules is calculated by the Settlement System Administrator using
data from such Metering System;
"Import" means, in respect of any Party, a flow of electricity to the
Plant or Apparatus of such Party from the Plant or Apparatus of another
Party and, in relations to any Party which is an External Pool Member,
the External Interconnection in respect of which it has the right to
deliver or take electricity to or from the NGC Transmission System shall
be treated as the Plant or Apparatus of such Party and the verb "Import"
and its respective tenses shall be construed accordingly;
"Independent Generators" means Generators other than:
(i) the Founder Generators;
(ii) any Generator which is an External Pool Member; and
(iii) any Generator which is an affiliate or related undertaking of
(a) any person referred to in paragraph (i) or (ii) above, (b)
any person referred to in
14
paragraph (i) of the definition of Independent Suppliers, or (c) any
Public Electricity Supplier;
"Independent Suppliers" means Suppliers other than:
(i) Eastern Electricity plc, East Midlands Electricity plc, London
Electricity plc, Manweb plc, Midlands Electricity plc, Northern
Electric plc, NORWEB plc, SEEBOARD plc, Southern Electric plc,
South Wales Electricity plc, South Western Electricity plc,
Yorkshire Electricity Group plc, National Power plc, PowerGen
plc, Nuclear Electric plc, British Nuclear Fuels plc, The
National Grid Company plc (Pumped Storage Business Division),
Electricite de France, Service National, Scottish Power plc and
Scottish Hydro-Electric plc;
(ii) Public Electricity Suppliers;
(iii) any Supplier which is an External Pool Member; and
(iv) any Supplier which is an affiliate or related undertaking of any
person referred to in paragraph (i), (ii) or (iii) above;
"Information Systems" has the meaning given that expression in Section
1.1 of Schedule 11;
"Initial Period" means the period from the date of this Agreement until
the end of the Accounting Period in which the Executive Committee
reaches the conclusion set out in Clause 5.4.2 or, if earlier, the date
of termination thereof determined in accordance with the provisions of
Clause 5.4.5;
"Initial Settlement Agreement" means the agreement of even date herewith
made between the Parties as at such date modifying and suspending the
provisions of this Agreement for an initial period and setting out inter
alia the rules and procedures for the operation of the electricity
trading pool referred to in Recital (E) and for the operation of a
settlement system and the procedures for the development of the phases
and pool rules during such initial period, as amended, varied,
supplemented, modified or suspended from time to time;
"Interconnection Agreement" means an agreement between NGC and an
Externally Interconnected Party and/or an External Pool Member relating
to an External Interconnection and/or an agreement under which an
External Pool Member can use an External Interconnection;
"kVAr" means kilovoltamperes reactive;
"Kw" means kilowatt;
15
"Kwh" means kilowatt-hour;
"Licenses" means all Generation Licenses, PES Licenses, Second Tier
Supply Licenses and Transmission Licenses and "License" means any or (as
the context may require) a particular one of them;
"Localized Implementation Errors" means errors the correction of which:
(i) requires no amendment to or variation of the Specification or
the design or functionality of the Software; and
(ii) does not alter the numerical outputs from the Software;
"LOLP" means the computer program developed by Energy Management
Associates Inc. for the National Grid Division of the Generating Board
pursuant to agreements with reference PCC/GB/J6638 and PCC/GB/J6881, as
such program is amended from time to time in accordance with this
Agreement;
"Lost Opportunity Costs" means, in relation to any Generator, the profit
foregone by such Generator in respect of a Generating Unit during a
period when it is out of service for the purposes of maintenance,
repair, modification, renewal or replacement needed to comply with a
proposal made by such Generator to restore the Generating Unit's
Reactive Power capability to that required by the Grid Code or, where
relevant, the applicable Supplemental Agreement, whichever capability is
lower provided that:
(i) the period when it is taken out of service is:
(a) outside the period identified for the Generating Unit
concerned pursuant to Section OC2 of the Grid Code as at
the time when the failure to have Reactive Power
capability was notified or determined; and
(b) approved by the Grid Operator; and
(ii) the Generator gives credit for any savings in loss of profit by
carrying out other repair work at the same time as that required
for the purposes of Reactive Power;
"Main Site" means those sites specified in paragraphs (i), (ii) and (v)
of the definition of Site;
16
"Majority Default Calling Creditors" means:
(i) in respect of each calendar quarter other than the first, any
single or group of Default Calling Creditors to whom, in respect
of the aggregate of (a) all Notified Payments payable on the
last five Business Days of the immediately preceding calendar
quarter and (b) all sums due to the Settlement System
Administrator, the Pool Funds Administrator and the Ancillary
Services Provider and outstanding under this Agreement on the
last Business Day of such immediately preceding calendar
quarter, more than 50 percent of the total amount of all such
Notified Payments and such other sums were due; and
(ii) in respect of the first calendar quarter, all Pool Members other
than the Defaulting Pool Member;
"Master Connection and Use of System Agreement" means the agreement
envisaged in Condition 10B of the NGC Transmission License;
"Meter" means a device for measuring Active Energy and/or Reactive
Energy;
"Meter Operator Party" means each person admitted in the capacity as
such and for the time being and from time to time party to Schedule 21
in accordance with the provisions thereof, and shall include any
successor(s) in title to, or permitted assign(s) of, such person;
"Meter Operator Party Accession Agreement" means an accession agreement
in or substantially in the form set out in Annex 3 to Schedule 21 or in
such other form (to which the Settlement System Administrator has no
reasonable objection) as the Executive Committee may for the time being
and from time to time approve;
"Meter Operator Party Admission Application" means an application in or
substantially in the form set out in Annex 1 to Schedule 21 or in such
other form as the Executive Committee may for the time being and from
time to time approve;
"Meter Operator Party Resignation Notice" means an application in or
substantially in the form set out in Annex 2 to Schedule 21 or in such
other form as the Executive Committee may for the time being and from
time to time approve;
"Metering Equipment" means Meters, measurement transformers (voltage,
current or combination units), metering protection equipment including
alarms, circuitry, their associated Communications Equipment and
Outstations, and wiring which are part of the Active Energy and/or
Reactive Energy measuring and transmitting equipment at or relating to a
Site;
17
"Metering System" means all or that part of the Metering Equipment at or
relating to a site linked to a single Outstation at or relating to a
Site linked to a single Outstation at or relating to that Site and
includes, for the avoidance of doubt, such Outstation. Without prejudice
to the generality of the foregoing, a set of non-exhaustive diagrammatic
representations of Metering Systems is contained in Annex 5 to Schedule
21;
"MVAr" means megavar;
"MVArh" means megavar-hours;
"MW" means megawatt;
"MWh" means megawatt-hours;
"New Software" means the Software, the development of which is initiated
after the Effective Date of Termination;
"NGC" means the National Grid Company plc (registered number 2366977)
whose registered office is situate at National Grid House, Xxxxx Xxxxxx
Xxxx, Xxxxxxxx XX0 0XX;
"NGC Pumped Storage" means the pumped storage business division of NGC
or any permitted successor to which such business may be transferred in
accordance with its Generation License;
"NGC Site" means a site owned (or occupied pursuant to a lease, license
or other agreement) by NGC at which there is a Connection Point and, for
the avoidance of doubt, a site owned by a User but occupied by NGC as
aforesaid is an NGC Site;
"NGC Transmission License" means the Transmission License granted or to
be granted to NGC;
"NGC Transmission System" means the system consisting (wholly or mainly)
of high voltage electric lines owned or operated by NGC and used for the
transmission of electricity from one Power Station to a sub-station or
to another Power Station or between sub-stations or to or from any
External Interconnection and includes any Plant and Apparatus and meters
owned or operated by NGC in connection with the transmission of
electricity but does not include any Remote Transmission Assets (as
defined in the Grid Code);
"Non-Embedded Customer" means any Customer, other than a PES, receiving
electricity direct from the NGC Transmission System irrespective of from
whom it is supplied;
18
"Notified Payment" has the meaning given that expression in Section 1.1
of Schedule 11;
"Operator" means, in relation to any Metering System:
(i) used to measure the supply to a Second Tier Customer, the Meter
Operator Party who is appointed as such by the Second Tier
Customer or by the Registrant (with the consent of that Second
Tier Customer) and who agrees to act as Operator in relation to
such Metering System; or
(ii) not within (i) above or (iii) to (v) below, the Meter Operator
Party who is appointed as such by the Registrant of such
Metering System and who agrees to act as Operator in relation to
such Metering System; or
(iii) where new Metering Equipment is to be added to an existing
Metering System, the Operator of such existing Metering System;
or
(iv) the Meter Operator Party which continues as the Operator in
accordance with the transitional arrangements set out in
paragraph 23 of Schedule 21; or
(v) the Party who is deemed to be the Operator and Meter Operator
Party in respect thereof in accordance with the terms of Clause
60.4.4;
"Outstation" means equipment which receives and stores data from a
Meter(s) for the purpose, inter alia, of transfer of that metering data
to the Settlement System Administrator and which may perform some
processing before such transfer. This equipment may be in one or more
separate units or may be integral with the Meter;
"Party" means each person for the time being and from time to time party
to this Agreement acting in a capacity, or deemed to be acting in a
capacity, other than that of Operator or Meter Operator Party, and shall
include any successor(s) in title to, or permitted assign(s) of, such
person;
"Period Metered Demand" has the meaning given that expression in Part I
of Appendix 1 to Schedule 9;
"PES License" means a license granted or to be granted under section
6(1)(c) of the Act;
"PFA Accounting Procedure" means the procedure for the recovery of
certain moneys set out in Section 20 of Schedule 15;
"Plant" means fixed and moveable items used in the generation and/or
supply and/or transmission of electricity, other than Apparatus;
19
"Pool Auditor" means the firm of accountants appointed for the time
being and from time to time pursuant to Clause 47.1;
"Pool Banker" has the meaning given that expression in Section 1.1 of
Schedule 11;
"Pool Chairman" has the meaning given that expression in Clause 16.1;
"Pool Creditor" has the meaning given that expression in Section 1.1 of
Schedule 11;
"Pool Funds Administrator" means the person for the time being and from
time to time appointed pursuant to Schedule 15 to act as Pool Funds
Administrator;
"Pool Member" means each of the Founder Generators and Founder Suppliers
and any other person who is admitted to pool membership in accordance
with Clause 8.2, in each case until it shall have resigned from pool
membership or otherwise ceased to be a member in accordance with this
Agreement be a member in accordance with this Agreement, and "Pool
Membership" shall be construed accordingly;
"Pool Membership Application" means an application in or substantially
in the form set out in Schedule 6 or in such other form as the Executive
Committee may for the time being and from time to time approve;
"Pool Rules" means the rules referred to in Clause 7.4 and set out in
Schedule 9, as amended, varied or substituted from time to time in
accordance with the terms hereof;
"PORTHOLE" means the database which allows the transfer of operational
information from the Grid Operator to the Settlement System
Administrator;
"Potential Operator" means a Meter Operator Party which is appointed as
the operator pursuant to an agreement or arrangement:
(i) in respect of a Metering System or Metering Equipment at a Site
or Sites but which is not yet registered as Operator in respect
of that Metering System; or
(ii) in respect of Metering Equipment where such Metering Equipment
has not been registered as comprising a Metering System;
"RP Date" has the meaning given to that expression in the definition of
Code of Practice;
"Power Station" means an installation comprising one or more Generating
Units (even where sited separately), other than an External
Interconnection, owned and/or controlled by the same Generator, which
may reasonably be considered as being managed as one Power Station;
20
"Project Manager" has the meaning given that expression in Clause 5.13;
"Public Electricity Supplier" or "PES" means a person for the time being
party to this Agreement who is a public electricity supplier (as that
expression is defined in the Act) and, in relation to Clauses 15.4 and
15.5 and Schedule 14, means a person for the time being party to this
Agreement who is a public electricity supplier in England and Wales;
"Quarter" means the period of three calendar months ending on a Quarter
Day;
"Quarter Day" means 31st March, 30th June, 30th September and 31st
December;
"Reactive Energy" means the integral with respect to time of the
Reactive Power;
"Reactive Power" means the product of voltage and current and the sine
of the phase angle between them measured in units of voltamperes
reactive and standard multiples thereof, that is:
1000VAr = 1kVAr
1000kVAr = 1MVAr;
"Register" means the register to be maintained by the Settlement System
Administrator pursuant to Clause 60.5;
"Registered Capacity" has the meaning given that expression in the Grid
Code;
"Registrant" means, in relation to a Metering System at or in relation
to any site which is:
(i) a Grid Entry Point,
the Pool Member which operates Generating Plant at such Site; or
(ii) a Grid Supply Point or Bulk Supply Point,
the Pool Member whose System is directly connected to the NGC
Transmission System at or in Relation to such Grid Supply Point or Bulk
Supply Point; or
(iii) the point of connection of a Customer of a Supplier and the NGC
Transmission System,
the Supplier which is the supplier to that Customer; or
21
(iv) the point of connection of a Generator which is Embedded or of a
Second Tier Supplier or of a Second Tier Customer to a
Distribution System,
the Party which is such Generator which is Embedded or such Second Tier
Supplier or the Second Tier Supplier in respect of such Second Tier
Customer, as the case may be; or
(v) the point of connection of two or more Distribution Systems,
the Authorized Electricity Operator of one of such Distribution Systems
which is nominated in accordance with the provisions of this Agreement;
or
(vi) the point of connection of an External Interconnection to the
NGC Transmission System or a Distribution System,
The Externally Interconnected Party;
"Resignation Notice" means a resignation notice in or substantially in
the form set out in Schedule 10;
"Schedule Day" has the meaning given that expression in Part I of
Appendix 1 to Schedule 9;
"Scheduling" means the process of compiling and issuing a Generation
Schedule (as that expression is defined in the Grid Code), as set out in
SDCI;
"Scheduling and Despatch Code" or "SDC" means that portion of the Grid
Code which is identified as such in the Grid Code;
"Scheme" means the scheme set out in Clause 53 and, separately, each
further scheme implemented pursuant to Clause 56.2;
"Scheme Admission Application" means an application form setting out the
Scheme Admission Conditions and requiring such information as the
Executive Committee may consider necessary to enable it to consider the
application, in such form as the Executive Committee may from time to
time determine;
"Scheme Admission Conditions" means the conditions set out in Clause 54;
"Scheme Genset" means a Centrally Despatched Generating Unit which is
admitted to a Scheme under Clause 53.3;
"Scheme Planned Availability" or "SPA" has the meaning given that
expression Clause 55;
22
"Scheme Year" means, in respect of each Scheme Genset, each successive
period of twelve months, the first such period commencing on 1st April,
1990;
"Second Quarter" means, in respect of any year, the months of April, May
and June;
"Second Tier Agent" means an agent appointed pursuant to Clause 60.16.1
acting where the provisions of Clause 60.16 are applicable or, as the
case may be, appointed pursuant to Clause 60.27.1 acting where the
provisions of Clause 60.17 are applicable;
"Second Tier Computer Systems" means all and any computer systems used
by any Second Tier Agent in connection with the operation of the Second
Tier Data Collection System operated by such Second Tier Agent;
"Second Tier Customer" means a person who is supplied with or sold
electricity by a Second Tier Supplier;
"Second Tier Data Collection System" means those parts of the Settlement
System which relate to the obligations of the Settlement System
Administrator under this Agreement in relation to collecting, estimating
and aggregating data as may be required for the proper functioning of
Settlement from Metering Systems at the point of connection between the
Distribution System of a Public Electricity Supplier and:
(i) a Second Tier Customer;
(ii) the System of an Authorized Electricity Operator other than the
Public Electricity Supplier;
(iii) an Embedded Generator not subject to Central Despatch; and
(iv) the Distribution System of another Public Electricity Supplier,
and providing such data to the Settlement System Administrator;
"Second Tier Hardware" means at any time the computer equipment and
accessories used by any Second Tier Agent on or in connection with which
the Second Tier Software functions or is intended to function at such
time;
"Second Tier Software" means at any time the computer programs and codes
and associated documents and materials which are used by any Second Tier
Agent in connection with the operation of the Second Tier Data
Collection System operated by such Second Tier Agent;
23
"Second Tier Specification" means at any time the computer
specifications developed to give effect to the collection, estimation
and aggregation of data for the purposes set out in Clause 60.16.3 and
such other matters as may be agreed between the Settlement System
Administrator and the relevant Second Tier Agent;
"Second Tier Supplier" means a person for the time being party to this
Agreement who is the holder of a Second Tier Supply License;
"Second Tier Supply License" means a license granted or to be granted
under section 6(2)(a) of the Act;
"Secretary" means the person for the time being and from time to time
holding office as secretary of the Executive Committee;
"Secretary of State" has the meaning given that expression in the Act;
"Security Cover" has the meaning given that expression in Section 1.1 of
Schedule 11;
"Security Period" has the meaning given that expression in the Fuel
Security Code;
"Settlement" means the operation of the Settlement System under this
Agreement;
"Settlement Account" has the meaning given that expression in Section
1.1 of Schedule 11;
"Settlement Day" has the meaning given that expression in Part I of
Appendix 1 to Schedule 9;
"Settlement GOAL" has the meaning given that expression in Appendix 2 to
Schedule 9;
"Settlement Metering Data" shall mean Metered Data as defined in, and
used in accordance with Section 3 of Schedule 9 and relevant metered
data in accordance with Appendix 6 to Schedule 9 of this Agreement,
which is used for the purposes of Settlement;
"Settlement Period" has the meaning given that expression in Part I of
Appendix 1 to Schedule 9;
"Settlement System" means those assets, systems and procedures for the
calculation in accordance with the Pool Rules of payments which become
due thereunder, as modified from time to time;
24
"Settlement System Administrator" means the person appointed for the
time being pursuant to Clause 26 or any replacement thereof from time to
time appointed pursuant to Part VI;
"Settlements Business" means the business of the Settlement System
Administrator in operating the Settlement System under this Agreement;
"Site" means:
(i) a Grid Entry Point;
(ii) a Grid Supply Point or Bulk Supply Point;
(iii) the point of connection of a Generator which is Embedded or of a
Second Tier Supplier or of a Second Tier Customer to a
Distribution System or the NGC Transmission System;
(iv) the point of connection of two Distribution Systems; or
(v) the point of connection of an External Interconnection to the
NGC Transmission System;
"Small Generator" means any Independent Generator with Generating Units
the aggregate Registered Capacity of which does not exceed 100MW;
"Software" means at any time the computer programs codes and associated
documents and materials which are at such time used by or on behalf of
the Settlement System Administrator and required in the operation of the
Settlement System;
"Specification" means at any time the computer specification(s) giving
effect to the Pool Rules and such other matters as may be agreed between
the Executive Committee and the Settlement System Administrator at the
time;
"Statement of Costs" has the meaning given that expression in Section
1.1 of Part A of Schedule 4;
"Supplemental Agreement" means any agreement entered or to be entered
into between NGC and any User party to the Master Connection and Use of
System Agreement and expressed to be supplemental thereto;
"Supplier" means a person for the time being party to this Agreement:
(i) who is a Founder Supplier; or
25
(ii) who was admitted as a Party in the capacity of a Supplier; or
(iii) who, in accordance with Clause 3.10, has changed capacity(ies)
such that it participates as a Party in the capacity of a
Supplier,
and, where the expression is used in Part III, Part IV or Part XI or
Schedule 14 or 18, who is also or (where appropriate) is to become a
Pool Member;
"Supplier's Connection Agreement" means the agreement for connection to
any User System envisaged in Condition 8B of a PES License and Condition
3 of a Second Tier Supply License;
"Supplier's Use of System Agreement" means the agreement for use of
system envisaged in Condition 8B of a PES License and Condition 3 of a
Second Tier Supply License;
"Synopsis of Metering Codes" means a synopsis maintained and updated as
necessary by the Executive Committee listing each Code of Practice
approved as such from time to time in accordance with this Agreement;
"System" means any User System or the NGC Transmission System, as the
case may be;
"System Ancillary Services" means Ancillary Services which are required
for System reasons and which must be provided by Users (but in some
cases only if a User has agreed to provide the same under a Supplemental
Agreement);
"Tariff" means the tariff approved by the Director and published by the
Executive Committee on or before 31st March in each year (beginning with
31st March, 1994) and providing for amounts payable to Operators or
Potential Operators of certain Sites in respect of the provision and
maintenance of Communications Equipment;
"Third Quarter" means, in respect of any year, the months of July,
August and September;
"Total System" means the NGC Transmission System and all User Systems in
England and Wales;
"Total Votes" means, in relation to a Pool Member, the number of votes
to which such Pool Member is entitled pursuant to Clause 11.7;
"Trading Site" shall be determined in accordance with Schedule 17;
26
"Transmission License" means a license granted or to be granted under
section 6(1)(b) of the Act, the authorized area of which is England and
Wales or any part of either thereof;
"TW" means terrawatt;
"TWh" means terrawatt-hours;
"Undertaking" has the meaning given that expression by section 259 of
the Companies Act 1985 as substituted by section 22 of the Companies Act
1989 and, if that latter section is not in force at the date of this
Agreement, as if such latter section were in force at such date;
"User" means a term utilized in various sections of the Grid Code to
refer to a person using the NGC Transmission System and includes an
Externally Interconnected Party, all as more particularly identified in
each section of the Grid Code concerned;
"User Site" means a site owned (or occupied pursuant to a lease, license
or other agreement) by a User in which there is a Connection Point;
"User System" means:
(i) other than in relation to an External Pool Member or an
Externally Interconnected Party, any system owned or operated by
a User comprising Generating Units and/or Distribution Systems
(and/or other systems consisting, wholly or mainly, of electric
lines which are owned or operated by a person other than a PES)
and Plant and/or Apparatus connecting Generation Units,
Distribution Systems (and/or other systems consisting, wholly or
mainly, of electric lines which are owned or operated by a
person other than a PES) or Non-Embedded Customers to the NGC
Transmission System or (except in the case of Non-Embedded
Customers) to the relevant other User System, as the case may
be, including any Remote Transmission Assets (as defined in the
Grid Code) operated by such User or other person and any Plant
and/or Apparatus and meters owned or operated by the User or
other person in connection with the distribution of electricity,
but does not include any part of the NGC Transmission Systems;
and
(ii) in relation to an External Pool Member or an Externally
Interconnected Party, the External System connected to the
relevant External Interconnection;
"Value For Money Audit" has the meaning given that expression in Part A
of Schedule 4;
"VAr" means voltamperes reactive;
27
"Votes Calculation Period" means:
(i) in relation to the First Quarter in any year, the Third Quarter
in the immediately preceding year;
(ii) in relation to the Second Quarter in any year, the Fourth
Quarter in the immediately preceding year;
(iii) in relation to the Third Quarter in any year, the First Quarter
of the same year; and
(iv) in relation to the Fourth Quarter in any year, the Second
Quarter in the same year;
"Weighted Votes" means, in relation to a Pool Member, the number of
votes to which such Pool Member is entitled pursuant to Clause 11.2;
"Wh" means watt-hours; and
"Working Day" has the meaning given that expression in the Act.
1.2 Construction of Certain References: in this Agreement, except where the
context otherwise requires, any reference to:
1.2.1 an Act of parliament of any Part or section or other provision
of, or Schedule to, an Act of Parliament shall be construed, at
the particular time, as including a reference to any
modification extension or reenactment thereof then in force and
to all instruments, orders or regulations then in force and made
under or deriving validity from the relevant Act of Parliament;
1.2.2 another agreement or any deed or other instrument shall be
construed as a reference to that other agreement, deed or other
instrument as the same may have been, or may from time to time
be, amended, varied, supplemented or novated;
1.2.3 an "affiliate" means, in relation to any person, any holding
company or subsidiary of such person or any subsidiary of a
holding company of such person, in each case within the meaning
of sections 736, 736A and 736B of the Companies Act 1985 as
substituted by section 144 of the Companies Act 1989 and, if
that latter section is not in force at the date of this
Agreement, as if such latter section were in force at such date;
28
1.2.4 a "Business Day" means any week day (other than a Saturday) on
which banks are open for domestic business in the City of
London;
1.2.5 a "day" means a period of 24 hours (or such other number of
hours as may be relevant in the case of changes for daylight
saving) ending at 12:00 midnight;
1.2.6 a "holding company" means, in relation to any person, a holding
company of such person within the meaning given that expression
in Clause 1.2.3;
1.2.7 a "month" means a calendar month;
1.2.8 a "person" includes any individual, partnership, firm, company,
corporation, joint venture, trust, association, organization or
other entity, in each case whether or not having separate legal
personality;
1.2.9 a "related undertaking" means, in relation to any person, any
undertaking in which such person has a participating interest as
defined by section 260(1) of the Companies Act 1985 as
substituted by section 22 of the Companies Act 1989 and, if that
latter section is not in force at the date of this Agreement, as
if such latter section were in force at such date;
1.2.10 a "subsidiary" means, in relation to any person, a subsidiary of
such person within the meaning given that expression in Clause
1.2.3; and
1.2.11 a "year" means a calendar year.
For all purposes of this Agreement no Party shall be an associate or a
related undertaking of any other Party only by reason of all or any of
the share capital of any Party being owned directly or indirectly by the
Secretary of State.
1.3 Interpretation:
1.3.1 in this Agreement:
(a) references to the masculine shall include the feminine
and references in the singular shall include references
in the plural and vice versa;
(b) references to the word "include" or "including" are to
be construed without limitation;
29
(c) references to time are to London time;
(d) except where the context otherwise requires, references
to a particular Part, Clause, sub-clause, paragraph,
sub-paragraph or Schedule shall be a reference to that
Part, Clause, sub-clause, paragraph, sub-paragraph or
Schedule in or to this Agreement;
(e) except where the context otherwise requires, references
in a Schedule to a particular Section, sub-section,
Annex or Appendix shall be a reference to that Section,
sub-section, Annex or Appendix in or to that Schedule;
and
(f) the table of contents, the headings to each of the
Parts, Clauses, sub-clauses, paragraphs, sub-paragraphs,
Schedules, Sections, sub-sections, Annexes and
Appendices are inserted for convenience only and shall
be ignored in construing this Agreement.
1.3.2 With respect to Part XV of and Schedule 21 to this Agreement
(but not elsewhere or otherwise):
(a) in the event that any person is required to give or is
entitled to withhold its consent or approval to terms
and conditions of this Agreement or an Agreed Procedure
or Code of Practice or to any other act, matter or thing
under or referred to in this Agreement or has agreed to
revise such terms and conditions or an Agreed Procedure
or Code of Practice or any dispensation therefrom, such
person shall act in good faith and be reasonable in
giving or withholding of such consent or approval or in
imposing conditions to such consent or approval or in
agreeing revised terms and conditions of Part XV of or
Schedule 21 to this Agreement or any Agreed Procedure or
Code of Practice; and
(b) where any person is required to perform any act or give
any consent or notification or do any other thing, it
shall, in the absence of any specified time limit,
perform, give or do or (as the case may be) notify its
withholding of its consent or approval to the same as
soon as is reasonably practicable in all the
circumstances.
1.4 Agreed Procedures and Codes of Practice: each of the Parties undertakes
to comply with the Agreed Procedures and the Codes of Practice insofar
as applicable to such
30
Party. The Executive Committee shall provide copies of the Agreed
Procedures and Codes of Practice to a Party upon request.
1.5 Obligation on Generators with respect to Availability Declarations: in
respect of each of its Centrally Despatched Generating Units a Generator
shall submit an Availability Declaration or a re-declared Availability
Declaration to ensure that its Genset Offered Availability and Genset
Re-Offered Availability do not exceed at any time the maximum Gross/Net
generation which it, acting as a prudent operator using Good Industry
Practice, would reasonably expect to achieve if such Centrally
Despatched Generating Unit were to be despatched at that level. In this
Clause 1.5 capitalized terms not defined in Clause 1.1 shall have the
respective meanings given to them in the Pool Rules.
2. THE EFFECTIVE DATE
Commencement: the rights and obligations of each of the Parties under
this Agreement shall commence on the Effective Date.
3. ADDITIONAL PARTIES
3.1 General: subject to the following provisions of this Clause 3, the
Parties shall admit as an additional party to this Agreement any person
(the "New Party") (not, for the avoidance of doubt, being a successor
Settlement System Administrator, Pool Funds Administrator, Grid Operator
or Ancillary Services Provider, to which the provisions of Clause 3.11,
3.12, 3.13 or, as the case may be, 3.14 apply) who applies to be
admitted, in the capacity or, as the case may be, capacities requested
by the New Party.
3.2 Admission Application: a New Party wishing to be admitted as an
additional party to this Agreement shall complete an Admission
Application and shall deliver it to the Executive Committee together
with the fee (which shall be non-refundable) and other documents (if
any) therein specified.
3.3 Executive Committee response:
3.3.1 upon receipt of any Admission Application duly completed the
Executive Committee shall notify (for information only) all
Parties and the Director of such receipt and of the name of the
New Party.
3.3.2 Within 60 days after receipt of a duly completed Admission
Application from a New Party the Executive Committee shall
notify the New Party and the Director either:
31
(a) that the New Party shall be admitted as a Party, in
which event the provisions of Clause 3.6 shall apply; or
(b) that the Executive Committee requires the New Party to
produce evidence satisfactory to the Executive Committee
("Additional Evidence") demonstrating the New Party's
fulfillment of the admission conditions relevant to it
set out in its Admission Application, in which event the
provisions of Clause 3.4 shall apply.
If the Executive Committee shall fail so to notify the New Party
and the Director, the New Party may within 28 days after the
expiry of the said 60 day period refer the matter to the
Director pursuant to Clause 3.5, in which event the provisions
of that Clause shall apply.
3.4 Additional Evidence: within 28 days (or such longer period as the
Executive Committee in its absolute discretion may allow) after the
Executive Committee has given notice pursuant to Clause 3.3.2(b) the New
Party shall:
3.4.1 provide the Executive Committee with the Additional Evidence, in
which event the Provisions of Clause 3.6 shall apply; or
3.4.2 refer the matter to the Director pursuant to Clause 3.5, in
which event the provisions of that Clause shall apply,
failing which the New Party's application for admission shall lapse and
be of no effect and the New Party shall not be, and shall not be
entitled to be, admitted as a Party consequent upon such application
(but without prejudice to any new application for admission it may make
thereafter).
3.5 Reference to the Director:
3.5.1 if:
(a) any dispute shall arise between the Executive Committee
and a New Party over whether the New Party has fulfilled
the admission conditions relevant to it; or
(b) the Executive Committee shall have failed to notify the
New Party as provided in Clause 3.3 within the 60 day
period therein specified,
the issue of whether the New Party has fulfilled the admission
conditions relevant to it may be referred by way of written
application
32
of the New Party, copies to the Executive Committee, to the
Director for determination. The determination of the Director,
which shall be made within 28 days after receipt of the said
written application and shall be to the effect set out in
paragraph (a) or (b) of Clause 3.5.2, shall be final and binding
for all purposes. The Director shall publish reasons supporting
his determination.
3.5.2 (a) If the determination is to the effect that the New Party
has fulfilled the said admission conditions, the New
Party shall be admitted and the provisions of Clause 3.6
shall apply.
(b) If the determination is to the effect that the New Party
has not fulfilled the said admission conditions, the New
Party's application for admission shall lapse and be of
no effect and the New Party shall not be, and shall not
be entitled to be, admitted as a Party consequent upon
such application (but without prejudice to any new
application it may make thereafter).
3.6 Admission: if:
3.6.1 the Executive Committee shall notify the New Party and the
Director as provided in Clause 3.3.2(a); or
3.6.2 following a request for Additional Information pursuant to
Clause 3.3.2(b), the New Party provides the same within the
period specified in Clause 3.4; or
3.6.3 the New Party is to be admitted as a Party pursuant to Clause
3.5,
the Executive Committee shall forthwith prepare or cause to be prepared
an Accession Agreement. Subject to the Executive Committee making all
notifications and filings (if any) required of it for regulatory
purposes and obtaining all regulatory consents and approvals (if any)
required to be obtained by it, the Executive Committee shall instruct
the Chief Executive or another person authorized by the Executive
Committee for the purpose to prepare an Accession Agreement and to sign
and deliver the Accession Agreement on behalf of all Parties other than
the New Party and the New Party shall also execute and deliver the
Accession Agreement and, on and subject to the terms and conditions of
the Accession Agreement, the New Party shall become a Party for all
purposes of this Agreement with effect from the date specified in such
Accession Agreement (and, if no such date is so specified, the date of
such Accession Agreement). The New Party shall pay all costs and
expenses associated with the preparation, execution and delivery of its
Accession Agreement. Each Party hereby authorizes and instructs the
Chief Executive and each person authorized for the purpose by the
Executive Committee to sign on its behalf Accession Agreements and
33
undertakes not to withdraw, qualify or revoke such authority and
instruction at any time. The Executive Committee shall promptly notify
all Parties and the Director of the execution and delivery of each
Accession Agreement.
3.7 Additional Agreements: upon and as a condition of admission as a Party,a
New Party shall execute and deliver such further agreements and
documents and shall do all such other acts, matters and things as the
Executive Committee may reasonably require.
3.8 Application fees: all fees received by the Executive Committee in
respect of any application by a New Party to become a Party shall be
used to defray the costs and expenses of the Executive Committee and
shall be paid to such account as the Executive Committee may direct. The
application fee shall be (pound)250 or such other amount as the
Executive Committee may, with the prior approval of the Director, from
time to time prescribe.
3.9 Compliance: each Party shall procure that for so long as it is a Party
it shall at all times satisfy or otherwise comply with the admission
conditions set out in its Admission Application applicable to it (and/or
such further or other conditions as the Executive Committee may from
time to time reasonably specify) and upon request from time to time
shall promptly provide the Executive Committee with evidence reasonably
satisfactory to the Executive Committee of such satisfaction and
compliance.
3.10 Change of capacities:
3.10.1 any Founder Generator, any Founder Supplier, any Externally
Interconnected Party and any Party admitted as an additional
party to this Agreement pursuant to this Clause 3 may, upon
application to the Executive Committee and satisfaction of such
conditions (if any) as the Executive Committee may reasonably
require, change the capacity(ies) in which it participates as a
Party.
3.10.2 If upon receipt of any Admission Application the Executive
Committee shall consider that the New Party should either:
(a) not be admitted as a Party in the capacity in which it
has applied so to be admitted but should be admitted in
another capacity; or
(b) be admitted both in the capacity in which it has applied
so to be admitted and in another capacity,
then the Executive Committee shall within the period specified
in Clause 3.3.2 notify the New Party and the Director
accordingly and shall specify what, if any, additional evidence
the Executive Committee
34
requires the New Party to produce to demonstrate its fulfillment
of the admission conditions relevant to its admission in such
other capacity(ies). The provisions of Clauses 3.4, 3.5 and 3.6
shall apply mutatis mutandis but as if the references therein to
Additional Evidence were read and construed as references to the
said additional evidence.
3.11 Successor Settlement System Administrator: any successor Settlement
System Administrator requiring to be admitted as a Party in that
capacity shall, upon application to the Executive Committee, be so
admitted by any of Accession Agreement modified insofar as is necessary
to take account of the capacity in which such successor is to be
admitted. The provisions of Clause 3.6 shall apply mutatis mutandis to
any such admission.
3.12 Successor Pool Funds Administrator: any successor Pool Funds
Administrator appointed in accordance with the provisions of Schedule 15
shall be admitted as a Party in that capacity at such time and on such
terms and conditions as the Executive Committee may reasonably require.
3.13 Successor Grid Operator: any successor Grid Operator requiring to be
admitted as a Party in that capacity shall, upon application to the
Executive Committee, be so admitted by way of Accession Agreement
modified insofar as is necessary to take account of the capacity in
which such successor is to be admitted. The provisions of Clause 3.6
shall apply mutatis mutandis to any such admission.
3.14 Successor Ancillary Services Provider: any successor Ancillary Services
Provider requiring to be admitted as a Party in that capacity shall,
upon application to the Executive Committee, be so admitted by way of
Accession Agreement modified insofar as is necessary to take account of
the capacity in which such successor is to be admitted. The provisions
of Clause 3.6 shall apply mutatis mutandis to any such admission.
35
PART II
OBJECTS, REVIEW AND PRIORITY
4. OBJECTS AND PURPOSE OF THE AGREEMENT
4.1 Principal objects and purpose: the principal objects and purpose of this
Agreement are:
4.1.1 to provide a set of rules which, when implemented, will
quantify:
(a) the financial obligations owed by certain Pool members
to other Pool Members in respect of the former Pool
Members' purchases of electricity produced or delivered
by such other Pool Members; and
(b) the financial obligations owed by certain Pool Members
to the Ancillary Services Provider in respect of the
purchase of Ancillary Services;
4.1.2 to establish, maintain and operate efficiently computer and
other systems (whether or not computer related) which will
implement the rules referred to in Clause 4.1.1; and
4.1.3 by following the procedures for amending this Agreement set out
or referred to herein, to keep under review and promote the
implementation, administration and development of the systems
referred to in Clause 4.1.2 in a way which takes into account,
and balances, the respective interests of actual and potential
generators and suppliers of electricity and of consumers of
electricity and providers of Ancillary Services.
4.2 Interpretation: in the construction and interpretation of this Agreement
due regard shall be had to the principal objects and purpose set out in
Clause 4.1.
4.3 Exercise of rights: in exercising its rights under this Agreement, each
Party shall exercise and enforce such rights and perform its obligations
in good faith having due regard both to its own legitimate commercial
interests and the principal objects and purpose set out in Clause 4.1.
5. TRANSITIONAL ARRANGEMENTS AND REVIEWS
5.1 [Not used]
36
Transitional Arrangements
5.2 Transitional Arrangements: the Parties acknowledge and agree that the
arrangements described or referred to in the first column of Schedule 12
("Transitional ------------ Arrangements") have been designed as
transitional arrangements only. The Parties ------------ undertake with
each other to use all reasonable endeavors (including, where
appropriate, through their representation on the Executive Committee) to
give effect to the principle (the "New Principle") set opposite the
relevant Transitional ------------- Arrangement in the second column of
Schedule 12 by the date set opposite such Transitional Arrangement in
the third column of that Schedule. Clauses 5.9 to 5.14 (inclusive) shall
have effect in relation to all Transitional Arrangements.
Regular Reviews
5.3 Conduct of reviews: within a period (the "Review Period") of six months
beginning on each of the dates referred to in Clause 5.5 (the "Review
Dates") the Executive Committee shall review in consultation with the
Settlement System Administrator and the Pool Auditor the operation in
practice of this Agreement and the Settlement System to assess whether
the principal objects and purpose set out in Clause 4.1 are being or
could be better achieved. In carrying out each such review the Executive
Committee shall give due consideration to any matter referred to it by
any Party, the Pool Auditor, the Director or the Secretary of State.
Clauses 5.4 to 5.15 (inclusive) shall have effect in relation to the
reviews described in this Clause 5.3, and such reviews shall be in
addition to the reviews associated with the Transitional Arrangements.
5.4 Initial Period reviews:
5.4.1 in addition to the matters set out in Clause 5.3, as part of its
review beginning on the date falling 24 months after the
Effective Date the Effective Committee shall consider whether or
not the Initial Period shall terminate with effect from the end
of the then current Accounting Period in which the relevant
Review Period ends taking into account the following:
(a) whether material changes to the nature or level of
service which the Settlement System Administrator is
required to provide under this Agreement in the
operation of the Settlement System have been proposed by
the Executive Committee or the Pool Members in general
meeting which have been accepted or are in the process
of being implemented or are under discussion and likely
to be accepted and implemented;
37
(b) whether anticipated costs to be incurred by the
Settlement System Administrator in running the
Settlement System are materially in excess of actual
costs for the immediately preceding Accounting Period
due, directly or indirectly, to circumstances beyond the
control of the Settlement System Administrator; and
(c) any other relevant considerations.
5.4.2 The Executive Committee shall notify the Settlement System
Administrator of the result of such considerations as are
referred to the in Clause 5.4.1. In the absence of written
representations to the contrary from the Settlement System
Administrator to the Executive Committee to the effect that it
is inequitable to conclude that the Initial Period should
terminate (having regard to the consequences of such termination
as set out in Schedule 4), such representations to be made
within three months after the date of such notification, the
Executive Committee may conclude that the Initial Period shall
terminate, but may not otherwise come to such conclusion unless
it has complied with Clause 5.4.3.
5.4.3 Where written representations have been made by the Settlement
System Administrator pursuant to Clause 5.4.2, the Executive
Committee and the Settlement System Administrator shall
negotiate in good faith with a view to agreeing whether the
Initial Period should terminate. If the matter is not resolved
by agreement between the Settlement System Administrator and the
Executive Committee within one month (or such other period as
the Settlement System Administrator and the Executive Committee
may agree) after the Settlement System Administrator has made
such written representations, the same shall be referred to
arbitration in accordance with Clause 83. The costs of any such
reference shall be borne in accordance with the Accounting
Procedure.
5.4.4 If for any reason the Executive Committee does not in the course
of any review referred in Clause 5.3 reach the conclusion that
the Initial Period should terminate or it is resolved pursuant
to Clause 5.4.3 that the Initial Period should not terminate,
the Executive Committee shall be obliged to have regard to the
same considerations in each subsequent review to be carried out
pursuant to Clause 5.3 and the provisions of Clauses 5.4.2 and
5.4.3 shall apply in relation thereto.
5.4.5 The Settlement System Administrator may, upon not less than two
months' notice to the Executive Committee prior to any Review
Date,
38
determine that the Initial Period should terminate at the end of
the then current Accounting Period whereupon the Initial Period
shall so terminate.
5.5 Review Dates: the Review Dates are:
5.5.1 those dates falling 12 and 24 months after the Effective Date;
5.5.2 those dates falling on the last day of each successive period of
two years, the first such period beginning on 30th March, 1992;
and
5.5.3 such other date(s) as the Pool Members in general meeting may
from time to time determine.
5.6 Reports: promptly (and in any event within one month) after the end of
each Review Period the Executive Committee shall prepare or cause to be
prepared a written report of its review containing such matters as are
referred to in Clause 5.7 and a copy of such report shall be sent to
each Party, the Pool Auditor, the Director and the Secretary of State.
If at the time of issue of such report no such conclusion or resolution
as is referred to in Clause 5.4.2 or (as the case may be) 5.4.3 has been
reached, the Executive Committee shall notify each Party, the Pool
Auditor, the Director and the Secretary of State accordingly.
5.7 Content of reports: each report referred to in Clause 5.6 shall set out:
5.7.1 the scope of the review conducted;
5.7.2 the matters reviewed and the investigations and enquiries made;
5.7.3 the findings of such review;
5.7.4 the recommendations (if any) as to the changes to be made to
this Agreement and the Settlement System so as to achieve or
better to achieve the principal objects and purpose set out in
Clause 4.1;
5.7.5 the effect which any such recommendation referred to in Clause
5.7.4 would, if implemented, have on the role of the Pool
Auditor under this Agreement and any comments of the Pool
Auditor thereon;
5.7.6 the financial effects (if any) which any such recommendation
referred to in Clause 5.7.4 would, if implemented, have on Pool
Members;
5.7.7 in the case of the report for the review beginning on the second
Review Date and (if appropriate) each subsequent Review Date,
whether the
39
Executive Committee has concluded as set out in Clause 5.4.2,
whether it has been resolved pursuant to Clause 5.4.3 that the
Initial Period should terminate or (as the case may be) whether
the Executive Committee has received notice under Clause 5.4.5;
and
5.7.8 such other matters as the Executive Committee shall consider
appropriate.
If any Committee Member shall disagree with any of the recommendations
made in any such report, such report shall set out the reasons for such
disagreement and any alternative proposals of such Committee Member.
5.8 General Meeting approval: within two months after the end of each Review
Period the Executive Committee shall convene an extraordinary general
meeting of Pool Members to consider and, if thought fit, approve (in
whole or in part) the recommendations (the "Recommendations") made in
the report referred to in Clause 5.6. If any Recommendation is so
approved (an "Approved Recommendation") then, subject to Clause 13.5,
the provisions of Clauses 5.9 to 5.14 (inclusive) shall have effect in
relation thereto. If any Recommendation is not so approved, no further
action shall be taken in respect thereof arising from such report.
Works Programme
5.9 Works Programme: in respect of each Transitional Arrangement and each
Approved Recommendation the Executive Committee shall:
5.9.1 in the case of a Transitional Arrangement, b the date set
opposite such Transitional Arrangement in the fourth column of
Schedule 12; and
5.9.2 in the case of an Approved Recommendation,by the date stipulated
by the Pool Members in general meeting or (if no date is
stipulated) within a reasonable time,
prepare (or cause to be prepared) in consultation with the Pool Auditor
a programme (the "Works Programme", which expression shall include any
associated documentation hereinafter referred to in this Clause 5.9)
which programme shall (unless otherwise resolved b the Executive
Committee after consultation with those Parties not being Pool Members
who might reasonably be expected to be affected by the Works Programme)
include:
(a) a detailed timetable for the implementation of the New Principle
or (as the case may be) the Approved Recommendation, including
(where appropriate) a series of milestone and/or target dates
for the achievement of specified parts of such programme;
40
(b) a full explanation of how such New Principle or approved
Recommendation is to be implemented, including a detailed
analysis of such New Principle or Approved Recommendation and
the objectives which it is intended to achieve, the work
involved, the resources required and the amendments likely to be
required to this Agreement, the Specification and to any other
relevant agreement or document and of any changes required to be
made to the Software or the Hardware; and
(c) an estimate of the cost of such implementation supported by a
breakdown of such costs and a detailed commentary on each
element thereof together with proposals for the recovery of such
cost,
and (unless otherwise resolved by the Executive Committee after
consultation with those Parties not being Pool Members who might
reasonably be expected to be affected by the Works Programme) shall be
supported by:
(i) any draft legal documentation required to give effect to the
amendments referred to in paragraph (b) above; and
(ii) the outline form of agreement appointing the Project Manager as
project manager for the implementation of the Works Programme
(which form shall, where the Settlement System Administrator is
or, in the Executive Committee's opinion, is likely to be the
Project Manager or here the Works Programme involves changes to
the Specification or the Software, be prepared in consultation
with the Settlement System Administrator).
5.10 Review: the Executive Committee shall arrange for a copy of each Works
Programme to be sent to each Party, the Pool Auditor and the Director
for review under cover of a letter setting a deadline for receipt of
comments on such Works Programme (being no earlier than one month and no
later than two months after the date of despatch of copies of the Works
Programme for comment) and indicating to whom such comments should be
addressed. Within such time as is reasonable after the deadline set for
receipt of comments, but, in any event, within two months thereafter,
the Executive Committee shall revise (or cause to be revised) the Works
Programme to take into account (so far as it considers desirable) the
comments received from the Parties, the Pool Auditor and the Director.
5.11 General Meeting referral: as soon as a Works Programme has been revised
as provided in Clause 5.10 (or, if the Executive Committee considers no
such revision desirable, within one month after the deadline set under
Clause 5.10 for receipt of comments on such Works Programme), the
Executive Committee shall convene an extraordinary general meeting of
Pool Members to consider and, if thought fit, approve such Work
Programme (with or without amendment).
41
5.12 Approval of the Works Programme:
5.12.1 a Works Programme shall not be given effect to unless and until
approved by the Pool Members in general meeting. Additionally,
if a Works Programme or any part thereof shall involve a matter
requiring the approval of Generators or Suppliers in separate
general meeting under Clause 13.2 (a "Class Issue"), then such
Works Programme shall not be given effect to unless and until
approved by the relevant class of Pool Members. If a Works
Programme shall not be duly approved (with or without
amendment), then the Executive Committee shall revise (or cause
to be revised) the same to take account of the wishes of the
Pool Members in general meeting and/or (as the case may be) in
separate general meeting and thereafter such revised Works
Programme shall be re-submitted to the Pool Members in general
meeting and, if such revised Works Programme or any part thereof
shall involve a Class Issue, to the relevant Pool Members in
separate general meeting, in each case for approval (with or
without amendment). This revision and re-submission procedure
shall be repeated as often as may be required until such time as
the Pool Members in general meeting and, as necessary, in
separate general meetings approve the Works Programme.
5.12.2 Notwithstanding the provisions of Clause 5.12.1, the Executive
Committee and each Party shall be entitled at any time prior to
the approval of a Works Programme by the Pool Members in general
meeting and (where required under Clause 5.12.1) by the relevant
class of Pool Members in separate general meeting to apply to
the Director requesting that the implementation of the New
Principle or (as the case may be) the Approved Recommendation
should not proceed or should not proceed in the manner set out
by such Works Programme and, in such event, effect shall not be
given to the Works Programme pending the determination of the
Director and then (subject as provided in Clause 5.14) only to
the extent (if at all) that the Director in his absolute
discretion shall approve.
5.13 Implementation: the implementation of all Works Programmes shall be
project managed by the Settlement System Administrator or (if the
Settlement System Administrator is unable or unwilling so to project
manage) such other person as the Executive Committee shall nominate (the
"Project Manager") upon and subject to such terms and conditions as are
agreed by the Executive Committee with the Project Manager and the cost
thereof recovered in accordance with the terms of the relevant Works
Programme. Cost overruns, liquidated damages and all other financing
costs, incentives and penalties shall be financed, levied and/or paid at
the times and in the manner provided for in such Works Programme. The
Executive Committee shall
42
require the Project Manager to prepare and submit to the Executive
Committee no less frequently than quarterly a written report giving a
detailed commentary on the progress of implementing each Work Programme,
including a comparison of actual progress made against the timetable set
by such Works Programme and of actual costs incurred against budgeted
costs.
5.14 Pool Auditor's approval: at the completion of the work required by each
Works Programme but prior to effect being given to the New Principle or
(as the case may be) the Approved Recommendation the Executive Committee
shall request the Pool Auditor to issue an opinion in form and content
satisfactory to the Executive Committee confirming to all Parties and
the Director that the Pool Auditor has inspected and tested the
arrangements giving effect to the new Principle or (as the case may be)
the Approved Recommendation and is satisfied (without qualification or
reservation) that such arrangements do give effect to the New Principle
or Approved Recommendation in the manner required by the Works
Programme. The Executive Committee shall use all reasonable endeavors to
make (or procure to be made) such modifications to such arrangements as
are necessary to enable the Pool Auditor to give its opinion without
qualification or reservation, and the costs of any such modification
shall be recovered in accordance with the relevant Works Programme. If
the Pool Auditor's opinion can be given only with qualification or
reservation, the Executive Committee shall convene an extraordinary
general meeting of Pool Members and, where required under Clause 5.12.1,
a separate general meeting of Generators and/or (as the case may be)
Suppliers to consider and, if thought fit, approve such arrangements in
the knowledge that the Pool Auditor's opinion can be given only with
qualification or reservation. Subject to the provisions of Clause 6,
each of the Parties undertakes with each of the other Parties promptly
following the issue of the Pool Auditor's opinion (but, where such
opinion has a qualification or reservation, only after approval as
aforesaid by the Pool Members in general meeting and, where required
under Clause 5.12.1, by the relevant class of Pool Members in separate
general meeting) to execute and deliver any amending agreement or other
documents and to take such other action as may reasonably be required of
it to give effect to such arrangements, in any such case at its own cost
and expense.
5.15 Secretary of State's approval: in respect of the Secretary of State's
decision as set out in his letter of 11th December, 1991 to the Chief
Executive concerning the selling of the output of plant by Generators
with on-site demand under this Agreement:
5.15.1 each of the Parties undertakes with each of the other Parties
forthwith to take all such steps (including as to the execution
of any document) as may be required to give full force and
effect to the decision of the Secretary of State. Each of the
Parties shall take all such steps at its own costs and expense
except that the Settlement System Administrator, the Pool Funds
Administrator and the Ancillary Services Provider shall
43
be entitled to recover any such costs and expenses in accordance
with the terms of this Agreement; and
5.15.2 each of the Parties acknowledges and agrees that damages would
not be an adequate remedy for any failure by it to give in
accordance with Clause 5.15.1 full force and effect to the
decision of the Secretary of State pursuant to this Clause 5.15
and that, accordingly, each of the other Parties and the
Director shall be entitled to the remedies of injunction,
specific performance and other equitable relief for any
threatened or actual such failure and that no proof of special
damages shall be necessary for enforcement.
5.16 Director's modifications:
5.16.1 Where the Monopolies and Mergers Commission has issued a report
on a reference under section 12 of the Act which:
(a) includes conclusions to the effect that any of the
matters specified in the reference operate, or may be
expected to operate, against the public interest;
(b) specifies effects adverse to the public interest which
those matters have or may be expected to have;
(c) includes conclusions to the effect that those effects
could be remedied or prevented by modifications of the
conditions of any License and such modifications would
require a change to the Pooling and Settlement
Agreement; and
(d) specifies modifications by which those effects could be
remedied or prevented,
the Director may, subject to the following provisions of this
Clause, require such modifications to this Agreement as are
requisite for the purpose of remedying or preventing the adverse
effect specified in the report.
5.16.2 Before requiring modifications to be made pursuant to this
Clause, the Director shall have regard to the modifications
specified in the report. Further, the Director shall not, and
shall not be entitled to, require a modification to be made to
this Agreement which modification could not have been achieved
lawfully through a modification of one or more Licenses
consequent upon the report (but as if, for this purpose, only
44
those Parties who are holders of Licenses were parties to this
Agreement).
5.16.3 Before requiring modifications to be made pursuant to this
Clause, the Director shall give notice:
(a) stating that he proposes to make the modifications and
setting out their effect;
(b) stating the reasons why he proposes to make the
modifications; and
(c) specifying the period (not being less than 28 days from
the date of publication of the notice) within which
representations or objections with respect to the
proposed modifications may be made,
and shall consider any representations or objections from any
person which are duly made and not withdrawn.
5.16.4 A notice under Clause 5.16.3 shall be given:
(a) by publishing the notice in such manner as the Director
considers appropriate for the purpose of bringing the
matters to which the notice relates to the attention of
persons likely to be affected by the making o the
modifications; and
(b) by serving a copy of the notice on each Party, the
Executive Committee and the Pool Auditor.
5.16.5 After considering any representations or objections which are
duly made and not withdrawn pursuant to Clause 5.16.3, the
Director may by notice published as provided in Clause 5.16.4(a)
and served on those referred to in Clause 5.16.4(b) specify the
modifications to this Agreement which he requires to be made and
the date upon which such modifications are to take effect and
each of the Parties undertakes with each other of the Parties
promptly to take all such steps as may be necessary to give full
force and effect to the modifications so required.
45
6. ENTRENCHED PROVISIONS, INCONSISTENCIES AND CONFLICTS
Entrenched Provisions
6.1 Secretary of State's consent: the Parties acknowledge and agree that,
notwithstanding any other provision of this Agreement, no amendment to
or variation of any of the matters dealt with in any of the following
provisions of this Agreement shall take effect without the prior written
consent of the Secretary of State:
6.1.1 Clause 5.15, Part XIV and Section 28 of Schedule 9; and
6.1.2 this Clause 6.1.
6.2 Director's consent: the Parties acknowledge and agree that,
notwithstanding any other provision of this Agreement, no amendment to
or variation of any of the matters dealt with in any of the following
provisions of this Agreement shall take effect without the prior written
consent of the Director:
6.2.1 (a) Clauses 3.5, 4, 5.12.2, 5.15, 5.16, 6.11, 11, 13, 15.6,
27.5, 27.7, 53.6, 67.3, 67.4, 83, 84 and 85 and Section
8 of Schedule 14 and Section 7 of Schedule 20;
(b) paragraphs 1.4, 2.2.3, 3.3, 3.4, 3.7, 4.4.1, 6.4, 6.5,
17.3 and 22.5 of Schedule 21;
6.2.2 without prejudice to Clause 6.2.3, the Pool Rules or any of
them, other than an amendment or variation which:
(a) involves only a change of a technical nature in the
systems, rules and procedures contemplated by this
Agreement; and
(b) will not increase the liability or decrease the rights
of any Party under this Agreement beyond what may
reasonably be regarded as de minimis in relation to such
Party,
but in any event including Section 22 thereof;
6.2.3 any provision of this Agreement which requires or permits any
matter to be referred to the Director for approval, consent,
direction or decision or confers any rights or benefits upon the
Director; and
6.2.4 the Clause 6.2.
46
6.3 Settlement System Administrator's consent: the Parties acknowledge and
agree that, notwithstanding any other provision of this Agreement,
insofar as directly affects in any material respect the rights, benefits
duties responsibilities, liabilities and/or obligations of the
Settlement System Administration no amendment to or variation of any of
the matters dealt with in any of the following provisions of this
Agreement shall take effect:
6.3.1 without the prior written consent of the Settlement System
Administrator:
(a) the definitions in Clause 1.1 of "Agreed Procedure",
"Code of Practice", "Force Majeure" and "Good Industry
Practice";
(b) Clauses 6.9, 7.3, 7.6, 9.5, 10.9, 10.10, 19.4, 27, 28,
32, 33, 34.1, 34.2, 35.3, 35.4, 35.6, 36.2, 37, 39,
42.4, 42.5, 66, 68, 69, 72, 74 and 78.2;
(c) Sections 1.6 (and its application to any other Section
of Schedule 9), 1.7 and 3 of Schedule 9: and
(d) this Clause 6.3;
6.3.2 without the prior written consent of the Settlement System
Administrator (such consent not to be unreasonably withheld or
delay):
(a) Clauses 18.1.2, 18.1.4, 19.5, 29, 30, 31, 40 to 48
(inclusive), 60, 70, 71.1, 71.2 (but only insofar as
directly concerns the fees and charges referred to
therein), 71.5 and 71.6;
(b) Part XXII (other than Clauses 74 and 78.2);
(c) paragraphs 4 to 16 (inclusive), 18, 19, 21 and 22 of
Schedule 21;
(d) Section 30 of, and Appendix 4 to, Schedule 9; and
(e) Section 2(b) of Part C to Schedule 17.
6.4 Pool Funds Administrator's consent: the prior written consent of the
Pool Funds Administrator may be needed to certain amendments to or
variations of this Agreement, as provided in Schedule 15.
6.5 Grid Operator's consent: the Parties acknowledge and agree that,
notwithstanding any other provision of this Agreement, insofar as
directly affects in any material
47
respect the rights, benefits, duties, responsibilities, liabilities
and/or obligations of the Grid Operator, no amendment to or variation of
any of the matters dealt with in any of the following provisions shall
take effect:
6.5.1 without the prior written consent of the Grid Operator:
(a) Clauses 6.9, 7.3, 7.6, 9.5, 10.9, 10.10, 19.4, 25, 37.3,
47 to 50 (inclusive), 66, 68, 69, 72, 74 and 78.2;
(b) sub-section 3.1 of Appendix 2 to Schedule 9; and
(c) this Clause 6.5; and
6.5.2 without the prior written consent o the Grid Operator (such
consent not to be unreasonable withheld or delayed), any other
provision of this Agreement,
Provided that the references to Parties and to the Grid Operator in this
Clause 6.5 shall be construed as if they were references to such terms
prior to the creation of Meter Operator Parties and the associated
amendments to this Agreement, but this shall be without limitation to
any right of the Grid Operator to consent to any amendment or variation
to this Agreement under this Clause 6.5.
6.6 Ancillary Services Provider's consent: the Parties acknowledge and agree
that, notwithstanding any other provision of this Agreement, insofar as
directly affects in any material respect the rights, benefits, duties,
responsibilities, liabilities and/or obligations of the Ancillary
Services Provider, no amendment to or variation of any of the following
provisions shall take effect:
6.6.1 without the prior written consent of the Ancillary Services
Provider:
(a) Clauses 6.9, 7.3, 7.6, 9.5, 10.9, 10.10, 19.4, 25, 52.3,
66, 68, 69, 72, 74 and 78.2;
(b) Part XI and the provisions expressly incorporated
therein by reference;
(c) Sections 1.8, 23, 24.8 and 28 of Schedule 9; and
(d) this Clause 6.6; and
6.6.2 without the prior written consent of the Ancillary Services
Provider (such consent not to be unreasonably withheld or
delayed), any other provision of this Agreement.
48
6.7 Amendments generally: without prejudice to the rights, powers and
privileges of the Secretary of State and the Director under the Act or
any License or otherwise howsoever:
6.7.1 subject to:
(a) any consent of a particular person(s) required to be
obtained under the foregoing provisions of this Clause 6
being obtained; and
(b) the requirements of Clauses 6.7.2 and 13.2; and
save where otherwise expressly provided in this Agreement, any
amendment to or variation of this Agreement shall be effective
if approved by the Pool Members in general meeting pursuant to
Clause 13.1 or 13.2 and all Parties agree promptly to execute
and deliver all agreements and other documentation and to do all
such other acts, matters and things as may be necessary to give
effect to such amendment or variation; and
6.7.2 where any change is proposed to this Agreement which, if made:
(a) would introduce provisions dealing with matters not then
dealt with in or expressly contemplated by this
Agreement; and
(b) would in any material respect directly affect the
rights, benefits, duties, responsibilities, liabilities
and/or obligations under this Agreement of the
Settlement System Administrator, the Grid Operator, the
ancillary Services Provider and/or any Externally
Interconnected Party,
such change shall not be made without the prior written consent
of the relevant one(s) of them (in each case such consent not to
be unreasonably withheld or delayed) Provided that the reference
to the Grid Operator in this Clause 6.7.2 shall be construed as
if it was a reference to such term prior to the creation of
Meter Operator Parties and the associated amendments to this
Agreement, but this shall be without limitation to any right to
consent to any amendment or variation of this Agreement under
this Clause 6.7.2.
Inconsistencies and Conflicts
6.8 Internal inconsistencies and conflicts: in the event of any
inconsistency or conflict:
49
6.8.1 the Pool Rules shall prevail over the other provisions of this
Agreement (except Clause 4);
6.8.2 the provisions of this Agreement shall prevail over the
Specification; and
6.8.3 the Specification shall prevail over the Software,
and the Parties shall use all reasonable endeavors promptly to secure
the elimination of such inconsistency or conflict.
6.9 External inconsistencies and conflicts:
6.9.1 each of the Parties hereby acknowledges and agrees the
desirability of achieving and maintaining consistency and
absence of conflict between the provisions o this Agreement and
the Grid Code but recognizes that, due principally to the
different functions and objectives of this Agreement and the
Grid Code, the fact that there may be Parties who are not bound
by the Grid Code and the difference procedures in this Agreement
and the Grid Code for review of their respective terms, it will
not in all circumstances be possible to avoid inconsistency or
conflict.
6.9.2 Where at the Effective Date there is an inconsistency or
conflict between the provisions of this Agreement and the Grid
Code the Executive Committee shall first consider the matter and
make recommendations and thereafter the Parties shall negotiate
in good faith to eliminate such inconsistency and/or conflict
having regard to the different functions and objectives o the
Grid Code and this Agreement.
6.9.3 Each of the Parties shall use its reasonable endeavors to ensure
that where any change to this Agreement is proposed to be made
which may reasonably be expected to require a change to the Grid
Code (or vice versa) such change is brought by the Executive
Committee to the attention of the Grid Code Review Panel in good
time to enable it to consider what corresponding change, if any,
should be made to the Grid Code or (as the case may be) this
Agreement. In any such consideration, the Parties acknowledge
and agree that it would be desirable in the event of any
inconsistency or conflict between the provisions of this
Agreement and the Grid Code if regard were had by the Grid Code
Review Panel to the principles set out in Clause 6.9.4.
6.9.4 The principles referred to in Clause 6.9.3 are that:
50
(a) where by reason of any inconsistency or conflict the
security, quality of supply and/or safe operation of the
NGC Transmission System under both normal and/or
abnormal operating conditions would necessarily be
compromised and/or the Grid Operator would necessarily
be in breach of its obligations under the Act or its
Transmission License, the provisions of this Agreement
should be made to conform (to the extent of such
inconsistency or conflict) to those of the Gird Code;
and
(b) in any other case, where by reason of such inconsistency
or conflict there is or is likely to be a material
financial effect on any class of Pool Members or on all
or a significant number of Pool Members, the provisions
of the Grid Code should be made to conform (to the
extent of such inconsistency or conflict) to those of
this Agreement.
6.9.5 The Parties acknowledge that changes to the Grid Code are
required to be approved by the Director.
6.9.6 Where there is any conflict or inconsistency between the Grid
Code and the Pool Rules, no Party shall be liable hereunder or
under the Grid Code as a result of complying with its
obligations under this Agreement or under the Grid Code.
6.10 Breaches of the Pool Rules: if at any time any Party believes that there
has been a breach of the Pool Rules, such Party shall promptly report
the same in writing to the Executive Committee.
6.11 Director's requests: the Executive Committee shall:
(i) give due and prompt consideration to any matter referred to it
in writing by the Director;
(ii) advise the Director in writing of any decision or action of the
Executive Committee in relation to such matter;
(iii) provide the Director in writing with an explanation in
reasonable detail of the reasons for such decision or action;
and
(iv) if reasonably requested by the Director (having regard, in
particular, to the resources available to the Executive
Committee), in relation to any proposal by the Director for a
change to any provision of this Agreement provide or procure the
provision of advice and assistance to the Director as soon as
51
reasonably practicable as to the implications of the change and
the actions necessary to implement it (including any relevant
feasibility study).
52
PART III
POOL MEMBERSHIP AND GENERAL MEETINGS
7. INTRODUCTION
7.1 Obligations contractually binding: each Pool Member acknowledges and
agrees that it is bound to each other Pool Member as a matter of
contract and will comply with its obligations under this Agreement.
7.2 Externally Interconnected Parties: each Externally Interconnected Party
acknowledges and agrees that it is bound to each Pool Member as a mater
of contract and undertakes to comply with the Pool Rules so far as they
may be applicable to it and each Pool Member acknowledges and agrees
that it is bound to each Externally Interconnected Party as a matter of
contract and will comply with its obligations under this Agreement.
7.3 Parties not Pool Members: the Settlement System Administrator, the Pool
Funds Administrator, the Grid Operator and the Ancillary Services
Provider shall not be Pool Members and not be bound as against other
Pool Members or the Executive Committee except as expressly provided for
in this Agreement, the Escrow Agreement and the Funds Transfer Agreement
in their respective roles as Settlement System Administrator, Pool Funds
Administrator, Grid Operator and Ancillary Services Provider.
7.4 Pool Rules:
7.4.1 the Pool Rules as at lst April, 1993 are set out in Schedule 9.
The Settlement System calculations shall be carried out on the
basis of the Settlement System and the Pool Rules. The Annex to
this Agreement contains modified Pool Rules to which the
Executive Committee shall have regard when considering changes
to the Pool Rules pursuant to Clause 38.
7.4.2 The Pool Rules shall be developed under the control of the
Executive Committee. The Executive Committee shall approve all
changes to the Pool Rules and no change shall be made to the
Pool Rules without the prior approval of the Executive
Committee.
7.5 Pool Members obligations:
7.5.1 save as otherwise expressly provided in this Agreement, the
obligations of each Pool Member under this Agreement are several
and a Pool Member shall not be responsible for the obligations
or liabilities of any
53
other Pool Member. The failure of any Pool Member to carry out
all or any of its obligations under this Agreement shall not
relieve any other Pool Member of all or any o its obligations
hereunder.
7.5.2 In respect of those obligations of a Pool Member (the
"Indemnifying Pool member") under this Agreement which are
expressed to be several, the Indemnifying Pool Member shall
indemnify and keep indemnified each other Pool member from and
against all losses, costs (including legal costs) and expenses
which such other Pool Member may suffer or incur as a result of
being held liable by operation of law (or contesting any such
liability) for the performance or non- performance of all or any
of such obligations o the Indemnifying Pool Member.
7.6 Information: in respect of all data and other information which a Pool
Member or an Externally Interconnected Party (not being a Pool Member)
is required to notify to the Settlement System Administrator under or
pursuant to this Agreement (other than (i) Metered Data (as defined in
paragraph 3.1.2 of Schedule 9) and (ii) pursuant to paragraph 2.3.2 of
Schedule 9, the relevant Pool member or (as the case may be) Externally
Interconnected Party shall use all reasonable endeavors to ensure that
all such data and other information is complete and accurate in all
material respects.
8. POOL MEMBERSHIP
8.1 Initial Pool Members: the initial Pool Members shall be the Founder
Generators and the Founder Suppliers.
8.2 Additional Pool Members:
8.2.1 subject to the following provisions of this Clause 8.2 and to
the fulfillment by the Party concerned of the conditions set out
or referred to in Clause 8.3 (the "Pool Membership Conditions"),
any Party shall, upon application to the Executive Committee, be
admitted as a Pool Member.
8.2.2 For the purposes of this Clause 8, "Party" shall include any
person who is applying to be admitted as a Party pursuant to
Clause 3 contemporaneously with being admitted as a Pool Member
but shall exclude the Settlement System Administrator, the Pool
Funds Administrator, the Grid Operator and the ancillary
Services Provider.
8.2.3 Subject to Clause 8.2.4, the admission of a Party as a Pool
Member shall take effect on the date (the "Admission Date")
specified by the Executive Committee (with the prior agreement
of the Settlement
54
System Administrator) in a notice given by the Executive
Committee to the relevant Party no later than 28 days after the
Satisfaction Date, provided that the Admission Date shall be a
date falling no earlier than the Satisfaction Date and (unless
otherwise agreed by the Executive Committee, the Settlement
System Administrator and such party) no later than 90 days after
the Satisfaction Date. In default of such notification being
given by the Executive Committee within the said 28 days, the
admission shall take effect on the day falling 35 days after the
Satisfaction Date. For the purposes of this Clause, the
"Satisfaction Date" shall be the day on which the last of the
Pool Membership Conditions required to be fulfilled by such
party shall have been fulfilled by it.
8.2.4 No person shall be admitted as a Pool Member unless prior to or
contemporaneously with such admission it shall have been or (as
the case may be) shall be admitted as a Party.
8.2.5 Prior to a Party's admission as a Pool member the Executive
Committee shall, where appropriate, determine and notify the
relevant party of the amount of Security Cover (if any) to be
provided by such Party.
8.3 Pool Membership Conditions:
8.3.1 where a person has been admitted as a Party pursuant to Clause 3
otherwise than contemporaneously with being admitted as a Pool
Member pursuant to Clause 8, the Pool Membership Conditions
applicable to it shall (unless otherwise determined by the
Director upon the application of such person or the Executive
Committee) be those that would have been applicable to it if it
had applied to be admitted as a Pool Member at the date of its
admission as a Party and, subject as aforesaid, such person
shall not be required to fulfill any further or other Pool
Membership Conditions introduced after such date unless the
applicant notifies the Executive Committee in writing prior to
or contemporaneously with its application for admission as a
Pool Member that it wishes such further or other conditions to
apply, in which case the Pool Membership Conditions applicable
to it shall (subject as aforesaid) be those applicable on the
date of its application for admission as a Pool Member.
8.3.2 The Pool Membership Conditions required to be fulfilled by a
Party prior to its admission as a Pool member are:
55
(a) the due completion by the Party and the delivery to the
Executive Committee of a Pool Membership Application;
(b) in respect of any Metering System required to be taken
into account for the purposes of Settlement and which
relates to the Party, the provision of evidence
reasonably satisfactory to the Executive Committee that:
(i) there is a Registrant and an Operator for such
Metering System;
(ii) such Registrant has provided to the Settlement
System Administrator the information required
for standing data purposes as required by this
Agreement or the relevant Agreed Procedure; and
(iii) such Metering System conforms with the
requirements of Part XV, all relevant Agreed
Procedures and all Codes of Practice and is
compatible with the Settlement System;
(c) the Party has entered into and has in full force and
effect all appropriate Connection Agreements or, if the
Party is applying to be admitted as an External Pool
Member, that all appropriate Connection Agreements with
the relevant Externally Interconnected Party in relation
to the relevant Interconnection are in full force and
effect;
(d) the provision of such information as the Executive
Committee may reasonably require to enable the Executive
Committee to ascertain whether any of the provisions of
Clause 11.4 are applicable to that Party, to determine
whether that Party is an Independent Generator, Small
Generator and/or Independent Supplier and to calculate
the initial Weighted Votes and Points of that Party as a
Pool Member under Clause 11.3 and Schedule 13
respectively;
(e) the provision of such information as the Executive
Committee may reasonably require:
(i) to enable the Executive Committee to ascertain
whether (and, if so, on what basis) that Party
is entitled to take the benefit of any exception
in Clause 8.5 claimed by it; and
56
(ii) to assist the Executive Committee in making any
determination under Clause 8.5 relevant to that
Party;
(f) if the Party is a Generator (other than an External Pool
Member), the provision of evidence reasonably
satisfactory to the Executive Committee that the Party
operates or has under its control one or more Generating
Units, which Generating Unit(s) has (have) provided
electricity to the Total system or will be capable of so
providing electricity within such period as the
Executive Committee may specify; and
(g) if the Party is an External Pool Member, the provision
of evidence reasonably satisfactory to the Executive
Committee that the Party has the right to use one or
more Generation Trading Blocks and/or the right to take
electricity across an External Interconnection under an
Interconnection Agreement then in full force and effect.
8.4 Compliance: each Pool Member shall procure that for so long as it is a
Pool Member it shall at all times satisfy or otherwise comply with those
Pool Membership Conditions (whether set out in this Agreement or in its
Pool Membership Application) applicable to it (and/or such further or
other conditions as the Executive Committee may from time to time
reasonably specify). Each Pool Member shall upon request from time to
time promptly provide the Executive Committee with such information as
the Executive Committee may reasonably require (i) to enable the
Executive Committee to ascertain whether (and, if so, on what basis)
that Pool Member is entitled to take the benefit of any exception in
Clause 8.5 claimed by it, and (ii) to assist the Executive Committee in
making any determination under Clause 8.5 relevant to that Party, and
further with evidence reasonably satisfactory to the Executive Committee
of such satisfaction and compliance.
8.5 Restrictions applicable to Pool Members:
8.5.1 at each of its Sites, or where any such Site forms part of a
Trading Site, such Trading Site, each Generator shall sell its
entire Exports of electricity to Pool Members pursuant to this
Agreement except:-
(a) for its Exports of electricity from any generating
station in respect of which (but for other generating
stations owned or operated by it) it would not be
required to hold a Generation Licence, being Exports at
any Site, or as the case may be, Trading Site for which
the Generator is not required to complete a Supplemental
Agreement to the Master Connection and Use of System
Agreement.
57
Provided that the Generator has given the Executive Committee
either on the Effective Date or not less than 10 Business Days
before that Site, or as the case may be, Trading Site is
withdrawn from the requirements of this provision written notice
that the circumstances described in sub-paragraph (a) apply: or
(b) for the output of electricity from any of its Generating
Units in circumstances which the Executive Committee
resolves by a vote passed by 80 per cent. or more of the
votes of all Committee Members (after consultation with
the Director) are exceptional.
8.5.2 In respect of all its requirements for electricity which a
Supplier wishes to purchase from Pool Members, the Supplier
shall purchase the same pursuant to this Agreement, provided
that nothing in this Agreement shall prevent or restrict the
purchase by a Supplier otherwise than pursuant to this
Agreement:-
(a) in circumstances where the Supplier is acting otherwise
than in its capacity as a consumer, of all or part of
that output of electricity from any Generating Unit
which is not required to be sold to Pool members
pursuant to Clause 8.5.1 or of electricity which has
been purchased by an External Pool Member at its
associated External Interconnection as an export from
the NGC Transmission System pursuant to this Agreement;
(b) in circumstances where the Supplier is acting in its
capacity as a consumer:-
(i) of electricity from any Supplier which has
purchased that electricity pursuant to this
Agreement; or
(ii) of such output of electricity as is referred to
in paragraph (a) above; or
(c) in circumstances where the Supplier is a Supplier
holding a PES Licence and is acting in its capacity as a
PES, of electricity from any Supplier which is a
Supplier holding a PES Licence, which operates a
Distribution System directly connected to the
Distribution System operated by the Supplier first
mentioned in this paragraph (c) and which has purchased
that electricity pursuant to this Agreement; or
(d) in circumstances which the Executive Committee resolves
by a vote passed by 80 per cent. or more of the votes of
all Committee Members (after consultation with the
Director) are exceptional, from any person.
58
For the purposes of this Clause 8.5.2 a "consumer" means a
person who purchases electricity from a Supplier for its own
consumption at premises owned or occupied by that person.
8.6 Restrictions applicable to non-Pool Members: save as otherwise expressly
provided, a Party which is not a Pool Member shall not be entitled to
any of the rights and benefits accorded to Pool Members under this
Agreement.
8.7 Resignation: subject as provided in Clause 8.8:-
8.7.1 a Party (other than the Settlement System Administrator, the
Pool Funds Administrator, the Grid Operator, the Ancillary
Services Provider and each Externally Interconnected Party)
shall be entitled at any time to resign as a Party by delivering
a Resignation Notice to the Secretary; and
8.7.2 such resignation shall take effect 28 days after receipt of the
Resignation Notice by the Secretary.
Promptly after receipt of a duly completed Resignation Notice from a
Party, the Secretary shall notify (for information only) all of the
other Parties, the Executive Committee and the Director of such receipt
and of the name of the Party wishing to resign.
8.8 Restrictions on resignation: a Party may not resign as a Party (and any
Resignation Notice delivered pursuant to Clause 8.7.1 shall lapse and be
of no effect) unless:-
8.8.1 as at the date its resignation would otherwise become effective
all sums due from such Party to the Executive committee or any
other Party under (a) this Agreement, (b) the Funds Transfer
Agreement or (c) any agreement entered into pursuant to this
Agreement (whether by or on behalf of such Party) and notified
for the purposes of this Clause 8.8 by the Executive Committee
to such Party prior to the date of its resignation, have been
paid in full; and
8.8.2 it would not be a breach of any Licence condition applicable to
such Party so to resign.
8.9 Release as a Party: without prejudice to Clause 66.7 and its accrued
rights and liabilities and its rights and liabilities which may accrue
in relation to the period during which it was a Party under this
Agreement, the funds Transfer Agreement or any agreement referred to in
Clause 8.8.1(c), upon a Party's resignation becoming effective in
accordance with Clause 8.7:-
8.9.1 such Party (if it is a Pool Member) shall cease automatically to
be a Pool Member;
59
8.9.2 such Party shall be automatically released and discharged from
all its obligations and liabilities under this Agreement, the
Funds Transfer Agreement and any agreement referred to in Clause
8.8.1(c); and
8.9.3 each of the other Parties shall be automatically released and
discharged from its obligations and liabilities to such Party
under this Agreement, the Funds Transfer Agreement and any
agreement referred to in Clause 8.8.1(c).
Each Party shall promptly at its own cost and expense execute and
deliver all agreements and other documentation and do all such other
acts, matters and things as may be necessary to confirm such cessation,
release and discharge.
8.10 Withdrawal as a Party: if a Party (the "Withdrawing Party") shall apply
on three occasions to be admitted as a Pool Member pursuant to this
Clause 8 and on each such occasion it is not so admitted by reason of
its failure to fulfil the relevant Pool Membership conditions then with
effect from the date the Withdrawing Party is deemed to receive
notification from the Executive Committee pursuant to Clause 75 that it
has failed for the third time to fulfil such conditions, without
prejudice to Clause 66.7 and its accrued rights and liabilities, and its
rights and liabilities which may accrue in relation to the period during
which it was a Party, under any agreement entered into pursuant to this
Agreement (whether by or on behalf of the Withdrawing Party) and
notified to it for the purposes of this Clause 8.10 by the Executive
Committee prior to the date of its cessation as a Party:-
8.10.1 the Withdrawing Party shall automatically cease to be a Party
and shall be automatically released and discharged from all its
obligations and liabilities under this Agreement and any such
agreement;
8.10.2 each of the other Parties shall be automatically released and
discharged from its obligations and liabilities to the
Withdrawing Party under this Agreement and any such agreement;
and
8.10.3 each Party shall promptly, at the cost and expense of the
Withdrawing Party, execute and deliver all agreements and other
documentation and do all such other acts, matters and things as
may be necessary to confirm such cessation, release and
discharge.
8.11 External Pool Members: a person who has been admitted as an External
Pool Member shall immediately cease to be a Pool Member (such cessation
to be without prejudice to Clause 66.7) upon either:-
8.11.1 all of its rights under an Interconnection Agreement to use the
relevant External Interconnection(s) for taking or delivering
electricity from or to the NGC Transmission System having
permanently ceased; or
60
8.11.2 the relevant External Interconnection(s) permanently ceasing to
be connected to the NGC Transmission System.
8.12 Change of capacities: any Pool Member may, upon application to the
Executive Committee and satisfaction of those of the Pool Membership
conditions relevant to its new capacity and such other conditions (if
any) as the Executive Committee may reasonably require, change the
capacity(ies) in which it participates as a Pool Member.
9. GENERAL MEETINGS
9.1 Annual general meeting: once in, and no later than 31st March of, each
year Pool Members shall hold a general meeting as their annual general
meeting in addition to any other meetings of Pool Members in that year,
and notices calling such general meeting shall specify it as the annual
general meeting. At each annual general meeting the Pool Members shall
be required to consider and, where appropriate, resolve upon the
following, namely:-
9.1.1 a report prepared by the Executive Committee on the Settlement
System and its operation during the immediately preceding year,
which report shall include:-
(a) a review of the operation of the Settlement System, the
Accounting Procedure, the accounting procedure set out
in Schedule 15 and the Funds Transfer System during the
immediately preceding year;
(b) a report on the progress of all Works Programmes then
current and of all changes to the operation of the
Settlement System, the Accounting Procedure, the
accounting procedure set out in Schedule 15, the Funds
Transfer System, all revisions to this Agreement and all
enhancements, improvements and modifications of or to
the Specification, the Hardware or the Software, in each
case which have been undertaken pursuant to this
Agreement;
(c) a review of performance over the immediately preceding
year against the business plan referred to in Clause
9.1.6; and
(d) such other information or matters as the Executive
Committee shall consider appropriate (including any
proposed revision to this Agreement);
9.1.2 a report prepared by the Pool Auditor on the Settlement System
and its operation during the immediately preceding year, which
report shall include:-
61
(a) a summary of the audits, reviews, tests and/or checks
referred to in Part IX carried out by the Pool Auditor
during such immediately preceding year;
(b) any recommendation which the Pool Auditor wishes to make
regarding the operation of the Settlement System, the
Accounting Procedure, the accounting procedure set out
in Schedule 15, the ASP Accounting Procedure and the
Funds Transfer System; and
(c) such other information or matters which the Executive
Committee may reasonably require or the Pool Auditor
shall consider appropriate;
9.1.3 all Budgets and reports prepared by the Settlement System
Administrator under Schedule 4 since the date of the immediately
preceding annual general meeting;
9.1.4 the appointment of Committee Members pursuant to Clause 15
(where appropriate, in separate class meetings of Pool
Members);
9.1.5 such matters as any Pool Member present in person may wish to
raise at such meeting, notice of which has been given to the
Secretary no later than seven days before the date of such
meeting, it being acknowledged and agreed that failure by a Pool
Member so to notify shall not prejudice the right of any Pool
Member to ask questions at such meeting on any matter then
before such meeting;
9.1.6 a business plan prepared by the Executive Committee for the then
current year and the next following four years (or such shorter
period as the Pool Members in general meeting shall from time to
time determine) on the Settlement System and the Funds Transfer
System and their operation and in relation to all other matters
which are the subject of this Agreement;
9.1.7 the election of the Pool Chairman pursuant to Clause 16; and
9.1.8 such other matters as the Executive Committee sees fit to
propose and of which notice has been given in accordance with
Clause 9.4.1.
9.2 General meetings: all general meetings of Pool Members other than annual
general meetings shall be extraordinary general meetings.
9.3 Calling meetings: all general meetings of Pool Members shall be called
by 14 days' notice in writing at the least, provided that a general
meeting of Pool Members shall, notwithstanding that it is called by
shorter notice, be deemed to have been duly called if it is so agreed by
a majority in number of the Pool Members having a right to
62
attend and vote at such meeting, being a majority in number together
holding not less than 95 per cent. of the Total Votes.
9.4 Convening meetings:
9.4.1 an annual general meeting shall be convened by the Secretary on
the instructions of the Executive Committee and any notice
convening such a meeting shall set out or append details of any
such matters as are referred to in Clause 9.1.8 and shall be
accompanied by a copy of the reports referred to in Clauses
9.1.1 to 9.1.3 (inclusive) and of the business plan referred to
in Clause 9.1.6. The Secretary shall use its reasonable
endeavours to notify the Pool Chairman and Pool Members in
advance of the relevant annual general meeting of any such
matters referred to in Clause 9.1.8 of which the Secretary has
received notice in accordance with that Clause.
9.4.2 Extraordinary general meetings shall be convened:-
(a) by the Secretary on the instructions of the Executive
Committee or of any one or more Committee Members
pursuant to Clause 13.4; or
(b) by the Executive Committee, forthwith upon receipt of a
Pool Members' requisition being a requisition of Pool
Members holding together at the date of the deposit of
the requisition not less than two per cent. of the Total
Votes of all Pool Members; or
(c) by the Secretary on the instructions of the Pool
Chairman.
9.4.3 A Pool Members' requisition shall state the objects of the
meeting and must be signed by or on behalf of the
requisitionists and deposited at the office of the Secretary,
and may consist of several documents in like form each signed by
one or more requisitionists. If the Executive Committee does not
within 21 days from the date of the deposit of the requisition
proceed duly to convene an extraordinary general meeting for a
date not later than two months after the said date of deposit,
the requisitionists may themselves convene a meeting, but any
meeting so convened shall not be held after the expiration of
three months from such date. A meeting convened under this
Clause 9.4 by requisitionists shall be convened in the same
manner, as nearly as possible, as that in which meetings are to
be convened by the Executive Committee.
9.5 Notice of general meetings: any notice convening any general meeting of
Pool Member shall be exclusive of the day on which it is served or
deemed to be served and of the day for which it is given, and shall
specify the place, the day and the hour of the meeting and the general
nature of the business of such meeting and shall be given to all
Parties, all Committee Members, the Pool Chairman, the Chief Executive
63
(if any), the Pool Auditor and the Director. The accidental omission to
give notice of a meeting to, or the non-receipt of notice of a meeting
by, any person entitled to receive notice shall not invalidate the
proceedings at that meeting. In every such notice there shall appear
with reasonable prominence a statement that a Pool Member entitled to
attend and vote is entitled to appoint a proxy to attend, speak and
(subject to Clause 12.1) vote in its place and that a proxy need not
also be a Pool Member.
9.6 Quarterly meetings:
9.6.1 The Secretary shall, on the instructions of the Executive
Committee, convene meetings of Pool Members not less frequently
than once in each Quarter to discuss reports prepared by the
Executive Committee pursuant to Clause 24.2.16 and any other
matter of interest which is the subject of this Agreement.
Unless the Executive Committee otherwise determines, no such
meeting shall be convened for the Quarter in which any annual
general meeting is to take place.
9.6.2 The provisions of Clauses 9.3 and 9.5 shall apply, mutatis
mutandis, for the purposes of the notice and the calling of
quarterly meetings pursuant to Clause 9.6.1 as if such meetings
were general meetings of Pool Members and the provisions of
Clause 10.9 shall also apply mutatis mutandis. Nothing in this
Agreement shall prevent a quarterly meeting being convened also
as an extraordinary general meeting.
10. PROCEEDINGS AT GENERAL MEETINGS
10.1 General: save as provided in Clause 12.8 and Part IV, all business of
Pool Members shall be transacted at general meetings of Pool Members,
the proceedings for the conduct of which are set out in this Clause 10.
10.2 Quorum: no business shall be transacted at any general meeting of Pool
Members unless a quorum of Pool Members is present at the time when the
meeting proceeds to business. Save as herein otherwise provided, a
quorum shall be Pool Members present in person representing:-
10.2.1 50 per cent. or more of the aggregate number of Weighted Votes
to which all Generators are entitled under Clause 11.2.1; and
10.2.2 50 per cent. or more of the aggregate number of Weighted Votes
to which all Suppliers are entitled under Clause 11.2.2
10.3 Lack of quorum: if within half an hour from the time appointed for the
general meeting a quorum is not present, the meeting shall stand
adjourned to the same day in the next week, at the same time and place
or to such other day and at such other time
64
and place as the Executive Committee may determine and, if at the
adjourned meeting a quorum is not present within half an hour from the
time appointed for the meeting, the Pool member(s) present shall be a
quorum.
10.4 Chairman: the Pool Chairman shall preside as chairman at every general
meeting and separate general meeting of Pool Members (other than one
convened to consider his removal) or, if there is no Pool Chairman or if
he shall not be present within 15 minutes after the time appointed for
the holding of the meeting or is unwilling to act or if the relevant
meeting has been convened to consider the removal of the Pool Chairman,
the Chief Executive (if any) shall preside as chairman or, if the Chief
Executive shall not be present or is unwilling to act or if the relevant
meeting has been convened to consider the removal of the Chief
Executive, the Pool Members present shall choose one of their number to
be chairman of the meeting.
10.5 Adjournments: the chairman of the meeting may, with the consent of any
general meeting of Pool Members at which a quorum is present (and shall
if so directed by the meeting) adjourn the meeting from time to time and
from place to place, but no business shall be transacted at any
adjourned meeting other than the business left unfinished at the meeting
from which the adjournment took place. When a meeting is adjourned for
30 days or more, notice of the adjourned meeting shall be given as in
the case of an original meeting. Save as aforesaid, it shall not be
necessary to give any notice of an adjournment or of the business to be
transacted at an adjourned meeting.
10.6 Demand for a pool: at any general meeting of Pool Members a resolution
put to the vote of the meeting shall be decided on a show of hands
unless a poll is (before or on the declaration of the result of the show
of hands) demanded:-
10.6.1 by the chairman of the meeting; or
10.6.2 by at least two Pool Members present in person or by proxy; or
10.6.3 by any Pool Member present in person or by proxy and holding not
less than two per cent. of the Total Votes of all Pool Members.
Unless a poll be so demanded a declaration by the chairman of the
meeting that a resolution has on a show of hands between carried or
carried unanimously, or by a particular majority, or lost and an entry
to that effect in the book containing minutes of the proceedings of
general meetings shall be conclusive evidence of the fact without proof
of the number or proportion of the votes recorded in favour of or
against such resolution. The demand for a poll may be withdrawn.
10.7 Timing of poll: except as hereinafter provided in this Clause 10.7, if a
poll is duly demanded it shall be taken in such manner as the chairman
of the meeting directs, and
65
the result of the poll shall be deemed to be the resolution of the
meeting at which the poll was demanded. A poll demanded on the election
of the chairman of the meeting or on a question of adjournment shall be
taken forthwith. A poll demanded on any other question shall be taken at
such time as the chairman of the meeting directs, and any business other
than that upon which a poll has been demanded may be proceeded with
pending the taking of the poll.
10.8 No casting vote: in the case of an equality of votes, whether on a show
of hands or on a poll, the chairman of the meeting at which the show of
hands takes place or at which the poll is demanded, shall not be
entitled to a second or casting vote.
10.9 Representation of non-Pool Members: each of the Chief Executive (if any)
or his duly appointed representative, the Settlement System
Administrator, the Pool Funds Administrator, the Grid Operator and the
Ancillary Services Provider shall be obliged to attend, and each other
Party, each Committee Member, the Pool Auditor and the Director (or its
or his duly appointed representative) shall have the right to attend, at
each general meeting of Pool Members, and each of them shall have the
right to speak (but not to vote) thereat.
10.10 Minutes: the Secretary shall prepare minutes of all general meetings of
Pool Members and shall circulate copies thereof to all Parties, each
Committee Member, the Pool Chairman, the Chief Executive (if any), the
Pool Auditor and the Director as soon as practicable (and in any event
within ten working days) after the relevant meeting has been held.
11. VOTING
11.1 Membership Votes: each Pool Member shall be entitled to one vote by
reason of its Pool Membership (its "Membership Vote"),,
11.2 Weighted Votes: subject as provided in Clauses 11.3 and 11.4, in respect
of any Quarter:-
11.2.1 each Pool Member which is a Generator shall be entitled in that
capacity to one vote for each GWh of Genset Metered Generation
of all Generating Units of such Pool Member for all Settlement
Periods falling in the Votes Calculation Period relative to such
Quarter, as determined from the final run of Settlement (as
referred to in paragraph D(3) of the Preamble to Schedule 9) for
each such Settlement Period; and
11.2.2 each Pool Member which is a Supplier shall be entitled in that
capacity to such number of votes as is equal to the total GWh of
Consumer Metered Demand taken by that Pool Member in all
Settlement Periods
66
falling in the Votes Calculation Period relative to such
Quarter, as determined from the final run of Settlement (as
referred to in paragraph D(3) of the Preamble to Schedule 9) for
each such Settlement Period,
11.3 Calculation of Weighted Votes: subject as provided in Clause 11.4:-
11.3.1 New Pool Members:
(a) until the third Quarter Day next falling after the date
of its admission as a Pool Member, any Party who is
admitted as a Pool Member pursuant to Clause 8.2 shall
have that number of Weighted Votes as fall to be
determined in accordance with the following provisions
of this Clause 11.3.1. Thereafter, such Pool Member's
Weighted Votes shall be calculated in accordance with
Clause 11.2;
(b) until the third Quarter Day next falling after the date
of admission of the relevant Pool member as a Pool
Member such Pool Member shall have that number of
Weighted Votes as are accorded to it upon its admission
as a Pool Member by the Executive Committee (which the
Executive Committee shall do prior to the date of such
admission) who shall have regard to the factors listed
in paragraph (c), (d) and/or (as the case may be) (e)
below or as are determined by the Director in accordance
with Clause 11.5;
(c) the factors referred to in paragraph (b) shall i the
case of such Generator:-
(i) the Registered Capacity of all Generating Units
of such Generator;
(ii) the Executive Committee's assessment of the
likely availability of all such Generating Units
for the period from the date of admission of
such Pool Member as a Pool Member to the third
Quarter Day next falling after such date, having
regard to the registered Generation Scheduling
and Despatch Parameters or (as the case may be)
Generation Trading Block Scheduling and Despatch
Parameters for such Generating Units;
(iii) the Executive Committee's assessment of the
likely output of all such Generating Units
during such period having regard to the output
of Generating Units which in
67
the Executive Committee's opinion most nearly
correspond to such Generating Units; and
(iv) the Executive Committee's assessment of the
likely daily station load associated with the
Power Stations of which such Generating Units
form part during such period.
(d) the factors referred to in paragraph (b) above shall in
the case of a Supplier be the total GWh which would be
supplied by the relevant Supplier in the period from the
date of admission of such Pool Member as a Pool Member
to the third Quarter Day next falling after such date on
the basis of its Customers' metered demand or, where
such metered information is not available, the load
profiles of its Customers used for the purposes of
estimating the consumption of Second Tier Customers; and
(e) the factors referred to in paragraph (b) above shall in
the case of an External Pool Member be whichever one or
more of those factors referred to in paragraph (c) above
and those referred to in paragraph (d) above as the
Executive Committee considers to be most readily
applicable to the Generating Units (if any) of such Pool
Member and to the level of demand for Active Energy of
that Pool Member across the relevant External
Interconnection but as if the references to Customers in
paragraph (d) were references to that Pool Member's own
requirements:
11.3.2 Calculation: on or prior to each Quarter Day the Executive
Committee shall, on the basis of information to be supplied by
the Settlement System Administrator, calculate the number of
Weighted Votes to which each Pool Member whose Weighted Votes
are to be calculated in accordance with Clause 11.2 is entitled
in its capacity as a Generator or a Supplier for the Following
Quarter, and shall notify each Pool Member and the Director in
writing of the number of Weighted Votes of all Pool Members in
their respective capacities (whether calculated in accordance
with Clause 11.2 or 11.3.1). Subject to Clause 11.5, the
determination of the Executive Committee as to the number of
Weighted votes of each Pool Member shall (in the absence of
manifest error) be final and binding for all purposes of this
Agreement;
11.3.3 Attribution: if a Pool Member shall receive one Weighted Vote or
no Weighted Votes by reason of the calculations under Clause
11.2 or the foregoing provisions of this Clause 11.2 or the
foregoing provisions of
68
this Clause 11.3, such Pool Member shall nevertheless be
accorded two Weighted Votes;
11.3.4 Rounding: in calculating Weighted Votes in accordance with the
provisions of Clause 11.2 and this clause 11.3, the total GWh
for each Generator or (as the case may be) Supplier shall be
rounded up or down (0.5 being rounded upwards) to the nearest
whole number; and
11.3.5 Information: the information to be supplied by the Settlement
system Administrator referred to in Clause 11.3.2 is:-
(a) in respect of each Generator, the number of GWh of the
Genset Metered Generation for that Generator for each of
the Settlement periods referred to in Clause 11.2.1; and
(b) in respect of each Supplier, the number of GWh of the
Consumer Metered Demand for that Supplier for each of
the Settlement Periods referred to in Clause 11.2.2.
11.4 Restrictions on Weighted Votes:
11.4.1 Generators: at no time shall the aggregate number of Weighted
Votes to which Central Power Limited (together with its
affiliates and related undertakings) shall be entitled in its
capacity as a Generator under the foregoing provisions of this
Clause 11 exceed 10 per cent. of the aggregate number of
Weighted Votes to which all Generators are entitled under the
foregoing provisions of this Clause 11 and the number of
Weighted Votes of Central Power Limited in such capacity shall,
if necessary, be limited accordingly;
11.4.2 Suppliers: at no time shall the aggregate number of Weighted
Votes to which both National Power PLC and PowerGen plc
(together with their respective affiliates and related
undertakings) are entitled in their capacity as Suppliers under
the foregoing provisions of this Clause 11 exceed 10 per cent.
of the aggregate number of Weighted Votes to which all Suppliers
are entitled under the foregoing provisions of this Clause 11
and the aggregate number of Weighted votes to which both such
companies ar entitled in that capacity shall be limited
accordingly and the number of weighted votes of each such
company in its capacity as a Supplier shall, if necessary, be
pro rata reduced; and
69
11.4.3 Cap on Weighted Votes:
(a) at no time shall the aggregate number of Weighted Votes
to which a Generator and its affiliates and related
undertakings which are also Generators are entitled in
their capacity as Generators under the foregoing
provisions of this Clause 11 exceed 44 per cent. of the
aggregate number of Weighted Votes to which all
Generators are entitled under the foregoing provisions
of this Clause 11 (after taking account of any
limitation required under Clause 11.4.1) and the
aggregate number of Weighted Votes to which such
Generator and all such affiliates and related
undertakings are entitled in that capacity shall be
limited accordingly and the number of Weighted Votes of
such Generator and all such affiliates and related
undertakings in their capacity as Generators shall, if
necessary, be pro rata reduced.
(b) At no time shall the aggregate number of Weighted Votes
to which a Supplier and its affiliates and related
undertakings which are also Suppliers are entitled in
their capacity as Suppliers under the foregoing
provisions of this Clause 11 exceed 44 percent of the
aggregate number of Weighted Votes to which all
Suppliers are entitled under the foregoing provisions of
this Clause 11 (after taking account of any limitation
required under clause 11.4.2) and the aggregate number
of Weighted Votes to which such undertakings are
entitled in that capacity shall be limited accordingly
and the number of Weighted Votes of each Supplier and
all such affiliates and related undertakings in their
capacity as Suppliers shall, if necessary, be pro rata
reduced.
(c) If any limitation or reduction pursuant to paragraph (a)
or (b) above would otherwise result in a Generator or
(as the case may be) a Supplier being accorded other
than a whole number of Weighted Votes, the Weighted
Votes actually accorded to such person shall be rounded
down to the nearest whole number.
11.4.4 Interim arrangement: the Parties acknowledge that the
application of Clauses 11.4.1 and 11.4.2 has been limited to
named companies pending resolution of how (if at all)
restrictions on Weighted Votes should apply to Generators with
second tier supply businesses and to Suppliers with an interest
in a generation business. The Parties agree to use all
reasonable endeavours to reach an agreed resolution to this
issue and to amend this Agreement to give effect thereto no
later
70
than 31st March, 1994 (or such later date as the Executive
Committee may decide).
11.5 Reference to the Director: if any person as is referred to in clause
11.3.1(a) shall dispute the calculation of or the number of Weighted
Votes accorded to it in accordance with Clause 11.3.1, such person may
refer such dispute to the Director for determination, whose
determination as to the calculation of or the number of Weighted Votes
to which such person shall be entitled shall be final and binding for
all purposes of this Agreement.
11.6 Alteration of Weighted Votes: the Director may at any time by notice to
the Executive Committee alter the calculation of Weighted Votes set out
in clauses 11.2.1 and 11.2.2 and/or the restrictions on Weighted Votes
set out in Clause 11.4 if in his opinion such alteration is required to
achieve fair representation for all Pool Members.
11.7 Total Votes: each Pool Member shall be entitled to that number of votes
("Total Votes") calculated in accordance with the following formulae:
TV = X + Y
where:
X = A x B
-----
2 x C
Y = A x D
-----
2 x E
and where:
TV = the number of Total Votes (rounded up or down, 0.5 being
rounded up) to which such Pool Member
A = the greater of C and E and, where C is equal to E, 0
B = the number of Weighted Votes for the time being of all Pool
Members which are Generators, in their capacity as such
(ignoring those Generators whose voting rights have been
suspended pursuant to this Agreement)
C = the number of Weighted Votes for the time being of all Pool
Members which are Generators, in their capacity as such
(ignoring those
71
Generators whose voting rights have been suspended pursuant to
this Agreement)
D = the number of Weighted Votes for the time being of such Pool
Member in its capacity as a Supplier
E = the number of Weighted Votes for the time being of all Pool
Members which are Suppliers, in their capacity as such (ignoring
those Suppliers whose voting rights have been suspended pursuant
to this Agreement).
11.8 Calculation of Total Votes: on or prior to:
11.8.1 each Quarter Day;
11.8.2 each date upon which a New Party is admitted as a Pool Member;
11.8.3 each date upon which a Pool Member's voting rights have been
suspended or reinstated pursuant to this Agreement; and
11.8.4 each date upon which a Pool Member ceases to be a Party,
the Executive Committee shall calculate for the Following Quarter or (as
the case may be) the remainder of the then current Quarter the number of
Total Votes to which each Pool Member is for the time being entitled,
and shall notify each Pool Member and the Director in writing if the
number of Total Votes of each of the Pool Members. The determination of
the Executive Committee as to the number of Total Votes of each Pool
Member shall (in the absence of manifest error) be final and binding for
all purposes of this Agreement.
11.9 Records: the Executive Committee shall maintain, and retain for a period
of not less than eight years, a register recording the Weighted Votes
(as a Generator and as a Supplier) and Total Votes of each Pool Member,
which register shall be open for inspection by any Party at the office
of the Secretary during normal business hours.
11.10 Voting on a show of hands: on a show of hands every Pool Member present
in person shall have only its Membership Vote.
11.11 Voting on a poll: on a poll every Pool Member shall have only its Total
Votes. On a poll votes may be given either personally or by proxy.
11.12 Objections: no objection shall be raised to the qualification of any
voter except at the meeting or adjourned meeting at which the vote
objected to is given or tendered, and every vote not disallowed at such
meeting shall be valid for all purposes. Any such
72
objection made in due time shall be referred to the chairman of the
meeting whose decision shall be final and conclusive.
12. PROXIES
12.1 Authority: any Pool Member entitled to attend and vote at any general
meeting of Pool Members shall be entitled to appoint another person
(whether a Pool Member or not) as its proxy to attend, speak and vote in
its place, save that a proxy shall not be entitled to vote except on a
poll.
12.2 Authentication of proxy: the instrument appointing a proxy shall be in
writing either under seal or under the had of an officer or attorney
duly authorised. A proxy need not be a Pool Member.
12.3 Deposit of proxy: the instrument appointing a proxy and the power of
attorney or other authority, if any, under which it is signed or
certified copy of that power or authority shall be deposited at the
office of the Secretary or at such other place within the United Kingdom
as is specified for that purpose in the notice convening the relevant
general meeting of Pool Members, not less than 48 hours before the time
for holding the meeting or adjourned meeting, at which the person named
in the insturment proposes to vote, or, in the case of a poll, not less
than 24 hours before the time appointed for the taking of the poll, and
in default the instrument of proxy shall not be treated as valid.
12.4 Form of proxy (1): an instrument appointing a proxy shall be in the
following form or a form as near thereto as circumstances admit:
"POOLING AND SETTLEMENT AGREEMENT FOR THE ELECTRICITY INDUSTRY IN
ENGLAND AND WALES dated 30th March, 1990
We, ________________ of ________________, being a Pool Member (as
defined in the above-mentioned Agreement), hereby appoint ______________
of _____________, or failing him, ___________________ of
________________, as our proxy to vote for us on our behalf at the
[annual or extraordinary, as the case may be] general meeting of Pool
Members, to be held on the __________ day of __________ 19__, and at any
adjournment thereof.
Signed this __________ day of ___________ 19__."
12.5 Form of proxy (2): where it is desired to afford Pool Members an
opportunity of voting for or against a resolution the instrument
appointing a proxy shall be in the following form or a form as near
thereto as circumstances admit:
73
"POOLING AND SETTLEMENT AGREEMENT FOR THE ELECTRICITY INDUSTRY IN
ENGLAND AND WALES dated 30th March, 1990
We, ________________ of ________________, being a Pool Member (as
defined in the above-mentioned Agreement), hereby appoint ______________
of _____________, or failing him, ___________________ of
________________, as our proxy to vote for us on our behalf at the
[annual or extraordinary, as the case may be] general meeting of Pool
Members, to be held on the __________ day of __________ 19__, and at any
adjournment thereof.
Signed this __________ day of ___________ 19__."
this form is to be used *in favour of the resolution.
------------
against
Unless otherwise instructed, the proxy will vote as he thinks fit.
*Strike out whichever is not desired."
12.6 Authority to demand a poll: the instrument appointing a proxy shall be
deemed to confer authority to demand or join in demanding a poll.
12.7 Proxy valid: a vote given in accordance with the terms of an instrument
of proxy shall be valid notwithstanding the previous revocation of the
proxy or of the authority under which the proxy was executed, provided
that no intimation in writing of such revocation shall have been
received by the Secretary at his office before the commencement of the
meeting of adjourned meeting at which the proxy is used.
12.8 Resolution in writing: a resolution in writing signed by all the Pool
Members for the time being entitled to receive notice of and to attend
and vote at general meetings of Pool Members (or by their duly
authorised representatives) shall be as valid and effective as if the
same had been passed at a general meeting of Pool Members duly convened
and held and may consist of several instruments in like form and
executed by or on behalf of one or more Pool Members.
12.9 Corporations acting be representives at meetings: any company,
corporation, partnership, firm joint venture, trust, association or
other organisation which is a Pool Member may be resolution of its
directors or other governing body authorise such person as it thinks fit
to act as its representative at any general meeting of Pool Members, and
references in this Agreement to a Pool Member acting in person
(howsoever expressed) shall be deemed to include Pool Members acting by
their duly authorised representatives.
74
13. MATTERS RESERVED TO THE GENERAL MEETING: CLASS RIGHTS
13.1 Matters reserved generally:
13.1.1 as between the Pool Members each of the matters referred to in
Clause 13.1.2 shall require the prior approval of Pool Members
in general meeting before effect is given to same, such approval
to be (subject as provided in Clause 27.3) by resolution of Pool
Members passed by not less than 65 percent of the Membership
Votes of such Pool Members as (being entitled to do so) vote in
person or by proxy at a general meeting of Pool Members of which
notice specifying the intention to propose the resolution has
been duly given.
13.1.2 The matters referred to in Clause 13.1.1 are:
(a) the removal of the Settlement System Adminstrator;
(b) the appointment and removal of the Pool Auditor;
(c) any amendment to or variation of this Agreement (other
than any amendment or variation referred to in Clause
13.2.1, 13.2.2 or 13.2.3 or any amendment of or
variation to Schedule 9 (including any amendment thereto
made pursuant to Clause 56.2) or to Schedule 15);
(d) the approval pursuant to Clause 5.8 of any
Recommendation and pursuant to Clause 5.11 of any Works
Programme and any approval pursuant to clause 5.14;
(e) the appointment and removal of the Pool Chairman; and
(f) such other matters (not being matters referred to in
clause 9.1.8) which are otherwise designated under this
Agreement for reference to the Pool Members in general
meeting.
13.2 Matters reserved to particular classes of Pool Members:
13.2.1 as between the Pool Members any amendment to or variation of
this clause 13.2 shall require the prior approval of the
Generators in separate general meeting.
13.2.2 As between the Pool Members each of the following matters shall
require the prior approval of the Suppliers in separate general
meeting:
75
(a) any change prior to 1st April, 1994 to the standards of
accuracy of Metering Equipment required for Second Tier
Customers up to (and including) 1MW;
(b) any change prior to 1st April, 1998 to the standards of
accuracy of Metering Equipment required for Second Tier
Customers up to (and including) 100kW;
(c) any amendment to or variation of Part XI and/or Schedule
18; and
(d) any amendment to or variation of this Clause 13.2.
13.2.3 As between the Pool Members any amendment to or variation of
Clause 10.2, 10.6, 13.4, 13.5, 15.2, 15.3, 15.4, 15.5, 15.8,
16.2, 19.2, 22 or 83, Schedule 14 or this Clause 13.2 shall
require the approval both of the Generators in separate general
meeting and of the Suppliers in separate general meeting.
13.2.4 To every separate general meeting referred to in this Clause
13.2 the provisions of this Part III relating to general
meetings of Pool Members (other than Clause 10.9, save in
respect of the attendance by the Pool auditor or the Director or
its or his duly appointed representative) shall apply mutatis
mutandis but so that:
(a) in the case of the Generators, the necessary quorum
shall be two Pool Members of that class;
(b) in the case of the Suppliers, the necessary quorum shall
be eight Pool Members of that class;
(c) the reference in clause 10.6.3 to Total Votes shall be
substituted by a reference to Weighted Votes; and
(d) notice of any such separate general meeting need be
given only to those entitled to attend the same,
and any resolution put to any such separate general meeting
shall, to be passed, require (in the case of the Generators) 75
percent and (in the case of the Suppliers) a simple majority of
the total Membership Votes or (as the case may be) Weighted
Votes of such Pool Members as (being entitled to do so) vote in
person or by proxy at such separate general meeting of which
notice specifying the intention to propose the resolution has
been duly given.
76
13.3 Provisions cumulative: the provisions of Clauses 13.1 and 13.2 are
cumulative and not exclusive one of the other.
13.4 Executive Committee's referral: in the event of receipt by the Secretary
from one or move of the Committee Members of a request that any matter
resolved upon a poll by the Executive Committee (or upon which it has
been unable or has refused to resolve other than where the taking of a
vote has ben deferred pursuant to Clause 22.1) be remitted to the Pool
Members in general meeting, such request having been received no later
than five working days after the date on which the results of such poll
were notified to Committee Members (exclusive of the date on which
notice was given) (or, as the case may be, the date of its failure or
refusal so to resolve), the matter the subject of the relevant
resolution shall be remitted to the Pool Members in general meeting and,
pending the decision of Pool Members in general meeting, such resolution
shall not have effect. The provisions of this Clause 13.4 are subject to
the provisions of Clause 61.9.
13.5 Dissentient Pool Member's right of appeal:
13.51. any Pool Member who:
(a) voted against a resolution passed or in favour of a
resolution not passed by Pool Members in general
meeting; or
(b) voted against a resolution passed or in favour of a
resolution not passed by Generators or (as the case may
be) Suppliers in separate general meeting; or
(c) is directly affected by Pool Creditors passing or
failing to pass a resolution of Pool Creditors (but only
where such resolution does not concern the enforcement
or non-enforcement of any payment obligation),
and each Externally Interconnected Party (not being a Pool
Member) (each such Pool Member a "Dissentient Pool Member",
which expression shall include each such Externally
Interconnected Party) shall be entitled within ten working days
after the date of such resolution to apply in writing to the
Director seeking a ruling that the relevant resolution shall or
shall not have effect on the grounds that either:
(i) the interests of a group of Pool Members (including the
Dissentient Pool Member) or of the Dissentient Pool
Member under this Agreement have been, are or will be
unfairly
77
prejudiced by the passing of or the failure to pass such
resolution; or
(ii) such resolution will breach, or will cause the
dissentient Pool Member to be in breach of, one or more
provisions of this Agreement or of its License or of the
Act.
Any such application shall give detailed reasons and evidence in
support and shall be copied to the Executive Committee. The
Dissentient Pool Member shall be entitled to mark all or any
part of such application as confidential and the Executive
Committee shall give such weight as its sees fit to such marking
in the copying of such application to those persons to whom it
is obliged to copy such application. The Executive Committee
shall promptly notify all other Pool Members, each Externally
Interconnected Party (not being a Pool Member), the Pool
Chairman, the Settlement System Administrator and the Pool Funds
Administrator of receipt of such application. At the same time
as the Executive Committee shall notify all such other Pool
Members, each Externally Interconnected Party (not being a Pool
Member), the Pool Chairman, the Settlement System Administrator
and the Pool Funds Administrator of such receipt, the Executive
Committee shall send each of them a copy of the relevant
application (amended, if appropriate, to take account of any
such marking where the Executive Committee shall have seen fit
so to do). The Executive Committee, each Pool Member, each
Externally Interconnected Party (not being a Pool Member), the
Pool Chairman, the Settlement System Administrator and (if
invited by the Director) the Pool Auditor shall each be entitled
to make representations to the Director. If the Pool Auditor
shall be so invited to make any such representations, the
Executive Committee will provide it with a copy of the relevant
application (amended, if appropriate, as aforesaid).
13.5.2 Any determination of the Director in respect of any such
application as is referred to in Clause 13.5.1 shall be final
and binding. Pending any determination of the Director in
respect of any such application, the relevant resolution (if
passed) shall not have effect provided that, if the Director
shall decline to accept a reference or to make a determination
(in either case, for whatsoever reason), such resolution shall
take effect from the date that the Director notifies the
Executive Committee that he declines to accept the reference or
to make the determination.
13.5.3 The Parties acknowledge and agree that the satisfaction of
either of the grounds referred to in Clause 13.5.1(i) or (ii)
shall not of itself entitle
78
the Dissentient Pool Member to a determination by the Director
in its favour.
79
PART IV
THE EXECUTIVE COMMITTEE
14. ESTABLISHMENT OF THE EXECUTIVE COMMITTEE
14.1 Establishment: the Pool Members hereby establish the Executive Committee
upon the terms and subject to the conditions of this Agreement.
14.2 1993/4 Committee Members:
14.2.1 at 1st December, 1993 the Committee Members for the Generators
are:
(a) Xxxxx Xxxxxxx, deemed appointed by National Power PLC
pursuant to Clause 15.2.4(a);
(b) Xxxxxx Xxxxxx, deemed appointed by PowerGen plc pursuant
to Clause 15.2.4(a);
(c) Xxxxxx Xxxxxxxx, deemed appropriate by Nuclear electric
plc pursuant to Clause 15.2.4(a);
(d) Xxxxx Xxxxx, deemed appointed pursuant to Clause
15.2.4(b) by those Generators who were Pool Members as
at 1st april, 1993 (other than National Power PLC,
PowerGen plc, Nuclear Electric plc and Small Generators
but including Central Power Limited); and
(e) Xxxxx Xxxxxx, deemed appointed by Small Generators who
were Pool members as at 1st April, 1993 (other than
Central Power Limited) pursuant to Clause 15.2.4(c).
14.2.2 at 1st December, 1993 the Committee Members for the Suppliers
are:
(a) Xxxxxx Xxxxxx, appointed for Group A;
(b) Xxxxxxx Xxxxxx, appointed for Group B;
(c) Xxxxxxx Xxxxxxxx, appointed for Group C;
(d) Xxx Xxxxxxx, appointed for Group D; and
80
(e) Xxxxx Xxxxxxxxxx, deemed appointed by those Independent
Suppliers who were Pool Members as at 1st April, 1993
pursuant to Section 6 of Schedule 14.
14.3 Deemed appointments: those Committee Members who according to Clause
14.2 were deemed appointed shall be treated for allpurposes of this
Agreement as having been duly appointed in accordance with the
provisions of this Part IV by the persons who are stated in that Clause
to have made the relevant appointment. In the case of any deemed
appointment by Generators of a Committee Member the provisions of
Clauses 15.3.1(c) and 15.3.2(b) shall not apply to any removal of such
Committee Member or (as the case may be) appointment of a substitute
Committee Member.
15. MEMBERSHIP OF THE EXECUTIVE COMMITTEE
15.1 Membership: Committee Members shall be appointed and removed in
accordance with the following provisions of this Clause 15.
15.2 Right to appoint (Generators):
15.2.1 subject to Clauses 15.6, 15.7 and 15.8, Generators shall
together have the right to appoint not more than five Committee
Members, such appointments to be made in accordance with the
following provisions of this Clause 15.2.
15.2.2 No later than seven days before each annual general meeting of
Pool Members or, failing election at such meeting, seven days
before an extraordinary general meeting convened for such
purpose each Generator shall be entitled, by notice to the
Executive Committee, to propose one person (a "Nominee") to be a
Committee Member. Any such proposal to be valid shall be
accompanied by a written statement from the Nominee stating that
he is aware of the proposal and would be prepared to serve as a
Committee Member is elected. As soon as practicable after such
seventh day (and in any event before the date of the annual
general meeting or, as the case may be, extraordinary general
meeting) the Executive Committee shall circulate (or cause to be
circulated) to all Generators a list of all the names of the
Nominees and of the Generators who proposed them. Such list
shall also be circulated at the annual general meeting or, as
the case may be, extraordinary general meeting to all Generators
present in person or by proxy.
15.2.3 The term of office of Committee members appointed by Generators
shall be from 1st April in the year of appointment to 31st March
in the next following year provided that, if the meeting at
which any such
81
Committee Member is appointed is held after 1st April, his term
of office shall commence from the time of his appointment. A
Committee Member whose term of office has expired or is to
expire shall be eligible for re-election.
15.2.4 At each annual general meeting or extraordinary general meeting
of Pool Members resolutions shall be put to the Generators for
the election by them of Committee Members from the list of
Nominees referred to in Clause 15.2.2. The election shall be
conducted in such manner as shall give effect to the following:
(a) on the first round of voting:
(i) each Generator (other than Central Power
Limited) shall be entitled to vote;
(ii) each Generator shall have its Weighted Votes
(disregarding for this purpose the restrictions
imposed by Clause 11.4.3(a)); and
(iii) the votes of a Generator and of all its
affiliates and related undertakings which are
also Generators may only be cast in favor of one
Nominee.
and at the conclusion of the first round the three
Nominees with the highest number of Weighted Votes cast
in their favor shall be elected Committee Members;
(b) on the second round of voting:
(i) each Generator (not being (A) Central Power
Limited, (B) a Generator which voted in favour
of one of the three Nominees referred to in
paragraph (a) above or (C) an affiliate or
related undertaking of such Generator) shall be
entitled to vote; and
(ii) each Generator shall have its Weighted Votes
(disregarding for this purpose the restrictions
imposed by Clause 11.4.3(a)),
and at the conclusion of the second round the Nominee
with the highest number of Weighted Votes cast in its
favour shall be elected a Committee Member;
82
(c) on the third round of voting, each Small Generator which
did not vote in the first or the second round of voting
shall be entitled to vote and at the conclusion of the
third round the Nominee with the highest number of votes
cast in its favour shall be elected a Committee member;
and
(d) if in any round of voting there is a tie between two or
more Nominees as to who should be elected a Committee
Member, that round of voting shall be reheld and, in the
event of another tie, the matter shall be resolved:
(i) in the case of a tie at any reheld first or
second round of voting, by xxx held in such
manner as the chairman of the meeting shall
decide; and
(ii) in the case of a tie at any reheld third round
of voting, by the casting vote of the Small
Generator holding the largest number of Weighted
Votes (disregarding for this purpose the
restrictions imposed by Clause 11.4.3(a)) and
entitled to vote in such third round.
15.3 Right to remove (Generators):
15.3.1 a Committee Member appointed by Generators or any class of
Generators may be removed at any time by written notice of
removal given to that Committee Member (copied to the Executive
Committee) by or on behalf of that number of those Generators
who:
(a) voted in favour of his appointment;
(b) are Pool Members at such time; and
(c) (disregarding for this purpose the restrictions imposed
by Clause 11.4.3(a)) hold more Weighted Votes than the
difference between:
(i) the number of Weighted Votes cast in favour of
that Committee Member; and
(ii) the number of Weighted Votes cast in favour of
the candidate, in that round of voting, who
received the next highest number of Weighted
Votes after the Committee Member being removed
(or, if there was no such candidate, zero).
83
15.3.2 If a Committee Member appointed by Generators is removed or his
office is vacated pursuant to Clause 21, a separate general
meeting of Generators shall be convened for the purpose of
appointing a substitute Committee Member. To such separate
general meeting the provisions of Clause 15.2 shall apply
mutatis mutandis but so that only those Generators which:
(a) are within the class of Generators entitled to vote in
respect of the appointment of the first-mentioned
Committee Member; and
(b) did not (when that first-amended Committee Member was
appointed) by reason of exercising their rights under
Xxxxxx 15.2 to vote for another candidate disenfranchise
themselves from voting in respect of the appointment of
the first-mentioned Committee Member (unless the
candidate in whose favour those votes were cast was not
appointed),
shall be entitled to vote on the appointment of his successor
(and then in accordance with the relevant paragraph of Clause
15.2.4). Until such successor is appointed the remaining
Committee Members appointed (or deemed appointed) by Generators
shall be entitled to nominate a successor.
15.4 Right to appoint (Suppliers): subject to Clause 15.6, 15.7 and 15.8,
Suppliers shall together have the right to appoint not more than five
Committee Members, such appointments to be made in accordance with the
provisions of Schedule 14.
15.5 Right to remove (Suppliers): a Committee Member appointed (or deemed
appointed) by Suppliers or any class of Suppliers may be removed in
accordance with the provisions of Schedule 14.
15.6 Director's right to appoint: if at any time there shall be no Small
Generators, the Parties acknowledge and agree that the Director shall
have the right to appoint one person to be a Committee Member to
represent the interests of all Small Generators and to remove from
office any person so appointed by him. The foregoing provisions of this
Clause 15.6 shall apply mutatis mutandis if at any time there shall be
no Independent Suppliers.
15.7 Qualifications on right to appoint:
15.7.1 no person appointed a Committee Member by the Generators (or any
of them) may for the duration of his appointment be appointed a
Committee Member by the Suppliers (or any of them) and vice
versa.
84
15.7.2 No person other than an individual shall be appointed a
Committee Member or his alternate.
15.7.3 No person for the time being appointed as Pool Chairman shall be
appointed a Committee Member or his alternate and no person for
the time being appointed a Committee Member or his alternate
shall be appointed as Pool Chairman.
15.7.4 No person for the time being appointed as Chief Executive shall
be appointed a Committee Member or his alternate and no person
for the time being appointed a Committee Member or his alternate
shall be appointed as Chief Executive.
15.8 Number: the maximum number of Committee Members shall not at any time
exceed ten.
15.9 Alternates:
15.9.1 each Committee Members shall have the power to appoint any
person (who may be an existing Committee Member) to be his
alternate and may at his discretion remove an alternate
Committee Member so appointed. Any appointment or removal of an
alternate Committee Member shall be effected by notice in
writing executed by the appointor and delivered to the Secretary
who shall forthwith notify all other Committee Members of such
appointment. If his appointor so requests, an alternate
Committee Member shall be entitled to receive notice of all
meetings of the Executive Committee or of sub-committees or
sub-groups of which his appointor is a member and to receive a
voting paper on a poll instead of the appointor. He shall also
be entitled to attend, speak and vote as a Committee Member at
any such meeting at which the Committee Member appointing him is
not personally present and at the meeting to exercise and
discharge all the functions, powers and duties of his appointor
as a Committee Member and for the purposes of the proceedings at
the meeting the provisions of this Part IV shall apply as if he
were a Committee Member. He shall also be entitled to demand a
poll (whether at or after the meeting) pursuant to Clause 22.3,
to carry out consultations with Pool Members contemplated by
Clause 22.9 insofar as his appointor shall be unable to do so,
to act on the instructions of Pool Members duly given to his
appointor and to complete his appointor's voting paper on a poll
on to behalf of his appointor.
15.9.2 Except on a poll, every person acting as an alternate Committee
Member shall have one vote for each Committee Member for whom he
acts as alternate, in addition to his own vote if he is also a
Committee
85
Member. On a poll, an alternate Committee Member shall be
entitled (if his appointor and by completion of the appointor's
separate voting paper) all of the votes which his appointor is
entitled to cast, in addition to any votes which the alternate
is entitled to cast in his own capacity if he is also a
Committee Member. Execution by an alternate Committee Member of
any resolution in writing of the Executive Committee shall,
unless the notice of his appointment provides to the contrary,
be as effective as execution by his appointor.
15.9.3 An alternate Committee Member shall ipso facto cease to be an
alternate Committee Member if his appointor ceases for any
reason to be a Committee Member.
15.9.4 References in this Agreement to a Committee Member shall, unless
the context otherwise requires, include his duly appointed
alternate.
16. POOL CHAIRMAN
16.1 Pool Chairman: there shall at all times be a Chairman of the pooling and
settlement arrangements for the electricity industry in England and
Wales established by this Agreement (the "Pool Chairman").
16.2 Appointments, removal and resignation:
16.2.1 (a) The election of the Pool Chairman shall take place at
each annual general meeting of Pool Members or, failing
election at such meeting, at an extraordinary general
meeting of Pool Members convened for such purpose.
(b) The right to nominate a person to stand for election as
Pool Chairman shall alternate from year to year between
the Committee Members appointed by Suppliers and the
Committee Members appointed (or deemed appointed) by
Generators.
(c) The procedures for selecting a nominee for the purposes
of paragraph (b) shall be as agreed between the relevant
Committee Members (having regard to their
responsibilities under Clause 23.2) or, failing
agreement, by simple majority vote of such Committee
Members.
(d) Nominations made pursuant to paragraph (a) shall be
delivered in writing to the Secretary no later than 21
days prior to the relevant annual general meeting or (as
the case may be) extraordinary general meeting. Any such
nomination to be valid
86
shall be accompanied by a written statement from the
nominee stating that he is aware of the proposal and
would be prepared to serve as Pool Chairman if elected.
(e) The term of office of the Pool Chairman shall be from
1st April in the year of his election to 31st March in
the next following year provided that:
(i) if the meeting at which he is elected is held
after 1st April, his term of office shall
commence from such date as the Pool Members in
general meeting shall resolve (being no later
than the date of such meeting); and
(ii) his term of office shall expire before 31st
March is he resigns or is unable for whatever
reason to continue to act or if a successor Pool
Chairman is elected with a term of office which
Pool Members in general meeting resolve is to
commence before that date.
(f) If at any time the Pool Chairman shall resign or be
unable for whatever reason to continue or act, those
Committee Members who were entitled to nominate a
candidate for election at the immediately preceding
annual general meeting shall forthwith do so and the
Executive Committee shall procure that a general meeting
is convened to consider the election of such candidate
as Pool Chairman.
16.3 Functions:
16.3.1 the Pool Chairman shall have and carry out only such duties and
responsibilities and exercise such powers as are expressly
provided in this Agreement. The Pool Chairman shall exercise all
duties, responsibilities and powers impartially.
16.3.2 the Pool Chairman shall liaise with the Chief Executive (if any)
on a frequent and regular basis and on behalf of Pool Members
shall generally monitor the performance by the Executive
Committee of its powers, duties and responsibilities under this
Agreement. The Pool Chairman in his capacity as Pool Chairman
shall have no voting rights under this Agreement.
16.4 Expenses: the Pool Chairman shall be paid his reasonable travelling,
hotel and incidental expenses of attending and returning from meetings
of the Executive Committee or any sub-committee thereof and any general
meetings and separate
87
general meetings of Pool Members and all costs and expenses properly and
reasonably incurred by him in the performance of his duties and
responsibilities under this Agreement. All such costs and expenses shall
be recovered in accordance with the PFA Accounting Procedure.
16.5 Indemnity: the Pool Chairman shall be indemnified and kept indemnified
jointly and severally by those Pool Members for the time being entitled
to appoint and remove the Pool Chairman pursuant to Clause 16.2 (and, as
between the relevant Pool Members, rateably in the proportion which
their respective Contributory Shares bear one to the other at the time
of receipt of the request for indemnification) from and against any and
all costs (including legal costs), charges, expenses, damages or other
liabilities property incurred or suffered by him in relation to his
office as Pool Chairman or the due exercise by him of his powers, duties
and responsibilities as Pool Chairman and all claims, demands or
proceedings arising out of or in connection with the same except any
such costs, charges, expenses, damages or other liabilities which are
suffered or incurred or occasioned by the wilful default or bad faith
of, or breach of duty or trust by, the Pool Chairman. Such Pool Members
shall, upon request, provide the Pool Chairman with a written deed of
indemnity to that effect.
17. CHIEF EXECUTIVE, SECRETARIAT AND SECRETARY
17.1 Chief Executive:
17.1.1 Subject to Clause 15.7.4, a chief executive of the Executive
Committee (the "Chief Executive") shall be appointed and be
subject to removal and replacement by resolution of the
Executive Committee passed by 70 percent or more of the votes of
all Committee Members (after consultation with the Pool
Chairman). The Chief Executive shall be appointed on such terms
and conditions as they see fit.
17.1.2 The Chief Executive shall undertake such duties and
responsibilities and exercise such powers in relation to the
Executive Committee and its activities as the Executive
Committee may from time to time assign to or vest in him.
17.1.3 The Chief Executive shall have the right and shall be obliged to
attend all meetings of the Executive Committee and all meetings
of the Pool Members in general meeting. The Chief Executive in
his capacity as Chief Executive shall have no voting rights
under this Agreement. If for any reason the Chief Executive is
unable to attend any such meeting, he shall nominate a
representative to attend in his place.
17.1.4 The Executive Committee shall make arrangements for the
remuneration of the Chief Executive and the payment of his costs
and
88
expenses and the same shall be recovered in accordance with the
PFA Accounting Procedure or as otherwise directed by the
Executive Committee from time to time.
17.2 Secretariat:
17.2.1 the Executive Committee may from time to time appoint and
remove, or make arrangements for the appointment and removal of,
such personnel as the Executive Committee requires to assist the
Executive Committee, any sub-committee of the Executive
Committee, the chairman of the Executive Committee or any such
sub-committee, the Pool Chairman, the Chief Executive or the
Secretary in the proper performance of its or his duties and
responsibilities, in each such case upon such terms and
conditions as the Executive Committee sees fit.
17.2.2 Any personnel referred to in Clause 17.2.1 shall undertake such
duties and responsibilities and exercise such powers as the
Executive Committee may from time to time assign to or vest in
him, it or them
17.2.3 The Executive Committee shall make arrangements for the
remuneration of such personnel as are referred to in clause
17.2.1 and the payment of their costs and expenses and the same
shall be recovered in accordance with the PFA Accounting
Procedure or as otherwise directed by the Executive Committee
from time to time.
17.3 Secretary:
17.3.1 the Executive Committee may from time to time appoint and
remove, or make arrangements for the appointment and removal of,
the Secretary on such terms and conditions as it sees fit.
17.3.2 The Secretary in his capacity as Secretary shall have no voting
rights under this Agreement.
17.3.3 The Secretary shall have and carry out only such duties and
responsibilities as are expressly provided in this Agreement and
such other reasonable secretarial and administrative duties and
responsibilities as may from time to time be delegated to it by
the Executive Committee. If at any time there is no Secretary,
the responsibilities and duties of the Secretary under this
Agreement shall become those of the Chief Executive or, if there
shall be no Chief Executive, the Executive Committee until such
time as a Secretary is appointed pursuant to Clause 17.3.1 or a
Chief Executive is appointed
89
pursuant to Clause 17.1.1 (and notices to the Secretary under
this Agreement shall be re-addressed accordingly).
17.3.4 The Secretary shall be entitled to receive such remuneration (if
any) as the Executive Committee may from time to time approve,
such remuneration to be paid to it at such times and in such
manner as the Executive Committee shall from time to time direct
and to be recovered in accordance with the PFA Accounting
Procedure or as otherwise directed by the Executive Committee
from time to time. Further, the Secretary shall be paid its
reasonable travelling, hotel and incidental expenses of
attending and returning from meetings of the Executive Committee
or any sub-committee thereof and any general meetings and
separate general meetings of Pool Members and all costs and
expenses properly and reasonably incurred by it in the
performance of its duties and responsibilities under this
Agreement. All such costs and expenses shall be recovered in
accordance with the PFA Accounting Procedure or as otherwise
directed by the Executive Committee from time to time.
17.4 Indemnity:
17.4.1 all Pool Members shall jointly and severally indemnify and keep
indemnified the Chief Executive, the personnel referred to in
Clause 17.2.1, the Executive Committee or any sub-group
established by any such sub-committee (other than a Committee
Member, without prejudice to Clause 23.3.4) (and, as between the
Pool Members, according to their respective Contributory Shares
at the time of receipt of the request for indemnification) from
and against any and all costs (including legal costs), charges,
expenses, damages or other liabilities properly incurred or
suffered by the Chief Executive in relation to his office as
Chief Executive or (as the case may be) the Secretary in
relation to its office as Secretary or the due exercise by the
Chief Executive, the said personnel, the Secretary or (as the
case may be) any such member of his, their or its powers, duties
and responsibilities under this Agreement and all claims,
demands or proceedings arising out of or in connection with the
same except any such costs, charges, expenses, damages or other
liabilities which are suffered or incurred or occasioned by the
wilful default or bad faith of, or breach of obligation by, the
Chief Executive, such personnel, the Secretary or (as the case
may be) any such member.
17.4.2 The Pool Members undertake to enter into an indemnity in favour
of any employer of the Chief Executive, any personnel referred
to in Clause 17.2.1, the Secretary or (as the case may be) any
such member of any sub-committee of the Executive Committee or
of any sub-group
90
established by any such sub-committee as is referred to in
Clause 17.4.1 under which they shall jointly and severally
indemnify and keep indemnified any such employer in respect of
all acts and omissions of the Chief Executive, such personnel,
the Secretary or (as the case may be) any such member in the
performance of his, their or its rights, powers, duties and
responsibilities under this Agreement (and, as between the Pool
Members, according to their respective Contributory Shares at
the time of receipt of the request for indemnification under the
relevant indemnity).
18. PROCEEDINGS OF THE EXECUTIVE COMMITTEE
18.1 Meetings:
18.1.1 until the second anniversary of the Effective Date meetings of
the Executive Committee (other than special meetings referred to
in Clause 18.1.3) shall be held at least once every month and
thereafter at least quarterly (or, in either case at such
shorter regular intervals as may be agreed from time to time by
the Executive Committee) at such time and place in any
jurisdiction in which any Pool Member is incorporated or has its
principal place of business as may be agreed from time to time
by the Executive Committee (or, in default of agreement, as
stipulated by the Pool Chairman).
18.1.2 Meetings of the Executive Secretary shall be convened by the
Secretary upon giving to the Committee Members, the Pool
Chairman, the Chief Executive (if any), the Settlement System
Administrator, the Director and the Pool Auditor and (where
matters the subject of the agenda referred to in Clause 18.1.4
concern directly the functions, duties or responsibilities of
any Externally Interconnected Party(not being a Pool Member),
the Pool Funds Administrator, the Grid Operator and/or the
Ancillary Services Provider) the relevant one(s) of them at
least five working days' notice of the place, the day and the
hour of the relevant meeting.
18.1.3 Special meetings of the Executive Committee shall be convened
upon the request of any Committee Member, the Pool Chairman or
the Chief Executive. Such request shall be made in writing to
the Secretary and shall state the matters to be considered at
that special meeting. Upon receipt of such request the Secretary
shall convene in accordance with Clause 18.1.2 without delay
such special meeting for a date occurring as soon as practicable
thereafter but not less than five nor more than ten working days
after receipt of such request. If the Secretary shall fail so to
convene a special meeting the Committee member which
91
made such request, the Pool Chairman or (as the case may be) the
Chief Executive may himself convent a special meeting, but any
meeting so convened shall not be held after the expiration of
two months from the date of such request. A special meeting
convened under this Clause 18.1.3 by a Committee Member, the
Pool Chairman or the Chief Executive shall be convened in the
same manner, as nearly as possible, as that in which meetings of
the Executive Committee are to be convened by the Secretary
pursuant to Clause 18.1.2.
18.1.4 Any notice given under Clause 18.1.2 shall be exclusive of the
day on which it is served or deemed to be served and of the day
for which it is given and shall be accompanied by an agenda of
the matters to be considered at the relevant meeting together
with any supporting documents or papers then available to the
Secretary, Any Committee Member may advise additional matters
which he wishes to be considered at such meeting by notice to
all other Committee Members, the Pool Chairman, the Chief
Executive (if any), the Secretary, the Settlement System
Administrator, the Director and the Pool Auditor and (where such
additional matters concern directly the functions, duties or
responsibilities of any Externally Interconnected Party (not
being a Pool Member), the Pool Funds Administrator, the Grid
Operator and/or the Ancillary Services Provider) the relevant
one(s) of them given no later than three working days before the
date of such meeting. Only matters identified in such agenda or
so advised shall be discussed or resolved upon at such meeting.
The accidental omission to give notice of a meeting or
accompanying agenda or supporting documents or papers to, or the
non-receipt of notice of a meeting or accompanying agenda or
supporting documents or papers by, any person entitled to
receive notice shall not invalidate the proceedings at that
meeting.
18.1.5 For any meeting of the Executive Committee, the periods and
methods of notice referred to in the foregoing provisions of
this Clause 18 may be waived prospectively or retrospectively
with the consent in writing of all such persons as are entitled
to attend the relevant meeting.
18.1.6 The Secretary shall prepare minutes of all meetings of the
Executive Committee and shall provide copies thereof to all such
persons as were entitled to attend the relevant meeting as soon
as practicable (and in any event within ten working days) after
the relevant meeting has been held. Each person who attended
such meeting shall notify his approval or disapproval of the
minutes thereof to the Secretary no later than ten working days
after receipt thereof and, if he fails to do so, he or it shall
be deemed to have approved the same. The Secretary shall record
92
any such disapproval in the minutes unless the same shall have
been withdrawn or the minutes amended with the agreement of the
Executive Committee. The Secretary shall provide copies of
minutes of meetings of the Executive Committee to any other
Party within a reasonable time after request therefor provided
that the said time for approving or disapproving the same has
expired. Further, the Secretary shall provide copies of such
minutes to such persons as the Executive Committee may from time
to time direct within a reasonable time after receipt of such
direction.
19. CONDUCT OF EXECUTIVE COMMITTEE MEETINGS
19.1 General: Chairman:
19.1.1 subject as provided in Clauses 13, 18, and 22 and this Clause
19, the Executive Committee may meet for the transaction of
business, and adjourn and otherwise regulate its meetings, as it
shall see fit.
19.1.2 The Pool Chairman shall preside as chairman at every meeting of
the Executive Committee provided that:
(a) if the Pool Chairman is unable to attend any meeting, he
shall nominate another individual to preside as chairman
at that meeting in his place. Such individual shall be a
director or senior executive of one of the Pool Members
entitled under Clause 16.2.1 to appoint the next
successor Pool Chairman, but shall not be a Committee
member or an alternate for any Committee Member; and
(b) if there is no Pool Chairman or the Pool Chairman or his
duly appointed nominee shall not be present within 15
minutes after the time appointed for the holding of the
meeting or the Pool Chairman is unwilling to act, the
Committee Members present may appoint one of their
number to be chairman of the meeting.
19.1.3 The chairman of the meeting in his capacity as chairman shall
not have any vote at meetings of the Executive Committee.
19.2 Quorum:no business shall be transacted at a meeting of the Executive
Committee unless a quorum is present at the time the meeting proceeds to
business. Three Committee Members appointed pursuant to Clause 15.2 and
three Committee Members appointed pursuant to Clause 15.4 present in
person or by their respective alternates shall constitute a quorum.
93
19.3 Lack of quorum: if within half an hour from the time appointed for
holding any meeting of the Executive Committee, a quorum is not present,
the meeting shall be adjourned to the same day in the next week at the
same time and place and if at the adjourned meeting a quorum is not
present within half an hour from the time appointed for holding the
meeting, those present shall constitute a quorum.
19.4 Representation of non-Committee Members: each of the Settlement System
Administrator, the Pool Chairman, the Director and the Pool Auditor (or
its or his duly appointed representative) shall have the right to attend
and speak (but not to vote) at meetings of the Executive Committee. Each
Externally Interconnected Party (not being a Pool Member) and each of
the Pool Funds Administrator, the Grid Operator and the Ancillary
Services Provider (or its duly appointed representative) shall be
entitled to attend and speak (but not vote) at meetings of the Executive
Committee only where matters directly concerning its functions, duties
or responsibilities have been identified or advised as provided in
Clause 18.1.4 or if so requested by the Executive Committee. The Chief
Executive (or his duly appointed representative) shall have the right to
attend and speak (but not vote) at meetings of the Executive Committee
and shall be obliged so to attend.
19.5 Written resolutions: a resolution in writing, executed by or on behalf
of each Committee Member, shall be as valid and effectual as if it had
been passed at a meeting of the Executive Committee duly convened and
held and may consist of several instruments in like form and executed by
or on behalf of one or more of such Committee Members. Any proposed
resolution in writing shall be circulated to all those persons who would
have been entitled to attend a meeting of the Executive Committee at
which such resolution could properly have been passed.
19.6 Default in appointment: all acts done by any meeting of the Committee
Members or of a sub-committee of the Executive Committee shall,
notwithstanding that it be afterwards discovered that there was some
defect in the appointment of such Committee Member, be as valid as if
such person had been duly appointed.
20. DELEGATION
20.1 Sub-Committees: the Executive Committee may establish sub-committees.
Each sub-committee:
20.1.1 shall be composed of such persons (whether or not Committee
Members) and shall discharge such rights, powers, duties and
responsibilities as from time to time the Executive Committee
considers desirable to delegate to it; and
20.1.2 in the exercise of its rights and powers and the performance of
its duties and responsibilities delegated to it by the Executive
Committee
94
shall at all times conduct itself and its affairs in a manner
which it considers best designed to give effect to the principal
objects and purpose set out in Clause 4.1.2 and to promote, and
not obstruct, the fair and efficient operation of the procedures
referred to in Clause 4.1.3 so that the objectives set out in
Clause 4.1.3 are thereby achieved; and
20.1.3 shall be given written terms of reference and, unless otherwise
varied by the Executive Committee, the provisions of Clauses 18
and 19 shall apply mutatis mutandis to meetings of such
sub-committee and the provisions of Clauses 19.4, 23.3.1,
23.2.2, and 23.3.3 shall apply mutatis mutandis in relation to
any such sub-committee and the members thereof; and
20.1.4 may establish sub-groups to assist in the discharge of the
rights, powers, duties and responsibilities of such
sub-committee, each of which sub-groups shall be given written
terms of reference and, unless otherwise varied by the Executive
Committee or any sub-committee acting on the authority of the
Executive Committee, the provisions of Clauses 18 and 19 shall
apply mutatis mutandis to meetings of such sub-groups and the
provisions of Clauses 23.3.1, 23.3.2, and 23.3.3 shall apply
mutatis mutandis in relation to each such sub-group and the
members thereof.
20.2 Nominees: upon written request of the Executive Committee each Pool
Member and the Settlement System Administrator shall:
20.2.1 nominate one or more persons knowledgeable in the matters
referred to, or the subject of consideration by, the relevant
sub-committee to attend at meetings of, and otherwise
participate as a member of, any sub-committee established by the
Executive Committee; and
20.2.2 procure that such nominee(s) shall so attend and participate at
such time or times as the Executive Committee os such
sub-committee may require,
provided that a Pool Member shall not be required in any period of 12
months to make available nominees for more than 60 days in aggregate.
Save as provided by Clause 25.3 no payment shall be made in respect of
any such attendance or participation.
20.3 Member's responsibilities: to the extent not inconsistent with the
provisions of Clauses 20.1.1, 20.1.2 and 20.1.3 a member of any
sub-committee established by the Executive Committee shall be free to
represent the interests of the person or persons
95
which nominated him to that sub-committee but each such person
acknowledges and agrees the subordination of those interests to the
responsibilities of such sub-committee under Clause 20.1.2.
20.4 Chief Executive: the Executive Committee may from time to time delegate
all or any of its rights, powers, duties and responsibilities under this
Agreement to the Chief Executive upon such terms and conditions as the
Executive Committee thinks fit.
20.5 Effect of decisions: resolutions of sub-committees shall not have
binding effect (a) unless and then only to the extent that the Executive
Committee shall have delegated the relevant decision-making powers to
the sub-committee, or (b) unless approved by resolution of the Executive
Committee (and then subject to Clause 13). Meetings of such
sub-committee shall, so far as possible, be arranged so that minutes of
such meetings can be circulated to each Committee Member in sufficient
time for consideration before the next following regular meeting of the
Executive Committee. Resolutions of sub-groups shall not have binding
effect. The Executive Committee shall remain at all times responsible
for the actions of all its sub-committees and sub- groups.
20.6 Other delegation: subject to any direction to the contrary by Pool
Members in general meeting but without prejudice to the Executive
Committee's rights under Clauses 20.1 and 20.4, the Executive Committee
may from time to time delegate in any particular case all or any of its
rights, powers, duties and responsibilities under this Agreement,
including any decision-making powers and the conduct of any review or
consultation and the preparation and submission of any report required
of it under this Agreement, to such person or persons as it thinks fit
and on such terms and conditions as it thinks fit and shall require
that, in the performance of the delegated duties, such person or persons
shall conform to any regulations that may be imposed on it or them by
the Executive Committee.
21. VACATION OF OFFICE BY COMMITTEE MEMBERS
The office of a Committee Member shall be vacated if:
21.1 he resigns his office by notice delivered to the Secretary; or
21.2 he becomes bankrupt or compounds with his creditors generally;
or
21.3 he becomes of unsound mind or a patient for any purpose of any
statute relating to mental health; or
21.4 he and his alternate fail to attend more than three consecutive
meetings of the Executive Committee; or
96
21.5 he is removed from office pursuant to Clause 15.3, 15.5 or (as
the case may be) 15.6.
22. VOTING
22.1 Voting: the chairman of the relevant meeting of the Executive Committee
and any Committee Member may demand that any question or matter arising
at a meeting of the Executive Committee be put to a vote of Committee
Members. Any vote so demanded shall be taken forthwith or at such other
time as such chairman directs not being later than the date of the next
meeting of the Executive Committee. Any demand for a vote may, before
the vote is taken, be withdrawn.
22.2 Simple majority: subject as provided in Clauses 22.3 to 22.11, any
question or matter arising at a meeting of the Executive Committee shall
be decided by a simple majority of the votes cast at the meeting by
Committee Members. On any such question or matter each Committee Member
shall be entitled to one vote. In the event of an equality of votes on
any resolution put to the Executive Committee, the matter the subject of
the relevant resolution shall be remitted to the Committee Members for
decision on a poll.
22.3 Demand for a poll: in respect of any matter or question which is put to
a vote of Committee Members a poll may be demanded (before or after the
simple majority vote) either:
22.3.1 at the meeting at which the simple majority vote takes place, by
the chairman of the meeting or by any Committee Member; or
22.3.2 by no later than five working days after such meeting, by notice
in writing to the Secretary by any Committee Member (whether or
not present at the relevant meeting).
22.4 Effect of decision: a decision duly made at a meeting of the Executive
Committee shall (unless otherwise determined by the Executive Committee
or otherwise provided by the terms of the decision) have immediate
effect, unless a poll be duly demanded in accordance with Clause 22.3,
in which case, pending the outcome of the vote on a poll, the decision
shall cease to or shall not have effect.
22.5 Conduct of a poll: the Secretary shall without delay following the
demand for, or the remittance of a matter for decision on, a poll
dispatch to each Committee Member a voting paper in such form as shall
be agreed by the chairman of the Executive Committee meeting at which
the matter in question was considered or (failing him) the Chief
Executive but which shall in any event set out the full text of the
resolution in respect of which the poll is required (which shall be the
same as the resolution which was put to a simple majority vote), shall
provide for each Committee Member
97
to cast votes for or against the resolution and shall specify the date
by which votes must be lodged by Committee Members. The Secretary shall
at the same time give notice to all Parties that a poll has been
demanded and shall specify in such notice the resolution on which the
poll has been called (if applicable), the identity of the person (or
persons) who has demanded the poll and the date by which votes must be
lodged by the Committee Members. The accidental omission to issue a
voting paper or to give notice of a poll, or the non-receipt of a voting
paper or such a notice by, any person entitled to receive the voting
paper or (as the case may be) the notice shall not invalidate the
conduct of the poll or the result thereof.
22.6 Votes on a poll: on a vote on a poll:
22.6.1 the Committee Members shall in aggregate be entitled to a number
of votes equal to the number of votes which the Pool Members
would have been entitled to cast on a poll at a general meeting
if such meeting had taken place on the day of the Executive
Committee meeting at which the matter in question was
considered;
22.6.2 the Committee Members appointed (or deemed appointed) by
Generators shall be entitled to cast votes on the following
basis:
(a) each Committee Member nominated by a single Generator
(which for this purpose shall include affiliates and
related undertakings of a Generator which are also
Generators) and elected on the first round of voting
shall cast the number of votes respectively attributable
to that Generator and to its affiliates and related
undertakings (in each case, whether as Generators of
Suppliers) in accordance with the written instructions
of that Generator and of each relevant affiliate and
undertaking;
(b) the Committee Members not falling within (a) above shall
have the votes attributable to all other Generators (not
being those referred to in paragraph (a) above or their
affiliates and related undertakings) and shall cast such
votes in accordance with the individual written
instructions of each such Generator, but so that no
Generator shall be entitled to instruct that the votes
attributable to it be cast more than once;
22.6.3 the Committee Members appointed by the Suppliers shall be
entitled to cast votes on the following basis:
(a) the Committee Members appointed (or deemed
appointed) by Groups A, B, C and D shall each
cast the votes attributable to
98
the members of the relevant Group in accordance
with the written instructions of the individual
Suppliers which are members of that Group;
(b) the Committee Member appointed on behalf of the
Independent Suppliers shall cast the votes
attributable to the Independent Suppliers in
accordance with the individual written
instructions of each such Supplier;
22.6.4 in the absence of any written instructions from any Generator or
Supplier, a Committee Member shall not be entitled to cast any
votes on behalf of that Generator or Supplier;
22.6.5 a Generator or Supplier may instruct the relevant Committee
Member to abstain from casting any or a specified number of
votes on its behalf;
22.6.6 the votes cast by a Committee Member shall not be valid unless:
(a) the relevant voting paper shall have been received by
the Secretary on or before the date falling 14 working
days after the date on which the voting papers were
despatched to Committee Members and the votes cast in
such voting paper accord with the written instructions
referred to in paragraph (b) below;
(b) accompanied by a copy of the written instructions given
by or on behalf of the Generator(s) or Supplier(s) whose
votes the Committee Member is entitled to cast;
(c) the Committee Member in other respects shall have
complied with the procedures for votes on a poll (if
any) from time to time established by the Executive
Committee;
22.6.7 any Generator or Supplier on whose instructions a Committee
Member is required to act in accordance with the foregoing
provisions shall be entitled to make arrangements with any other
Generator or Supplier on whose instructions that same Committee
Member is required to act for the requisite written instructions
to be given on its behalf by that other Generator or Supplier.
Details of any such arrangement shall promptly be given to the
Secretary.
22.7 65 per cent. majority: a resolution on a poll shall be decided by a
majority of not less than 65 per cent. of the votes duly cast. The
Secretary shall as soon as reasonably practicable after the expiry of
the 14 working day period for return of
99
voting papers referred to in Clause 22.6.6(a) ascertain the results of
the poll in consultation with the Pool Chairman or (failing him) the
Chief Executive and the Chief Executive or (failing him) the Secretary
shall as soon as practicable thereafter notify all Parties and all other
persons entitled or required to attend general meetings of Pool Members
of the outcome of the poll. The result of the poll shall be deemed to be
the resolution of the meeting at which or after which the poll was
demanded.
22.8 Withdrawal of demand: any demand for a poll may be withdrawn by the
person who made it at any time provided that notice of withdrawal is
received by the Secretary by no later than the seventh day following the
date of the Executive Committee meeting at which the simple majority
vote took place. The Secretary shall as soon as reasonably practicable
notify all Parties and other persons entitled or required to attend
general meetings of Pool Members of receipt of any such notice of
withdrawal.
22.9 Responsibilities of Committee Members: the Committee Members shall
consult the Pool Members whose votes they are entitled to cast as soon
as reasonably practicable following the demand for a poll and shall be
required to cast, or to refrain from casting, the votes of such Pool
Members in accordance with their individual instructions. The provisions
of Clauses 23.1 and 23.2 shall not apply in respect of any vote
conducted on a poll.
22.10 Referral to general meetings: the provisions of this Clause 22 are
subject to the requirements of referral to the Pool Members in general
meeting described in Clause 13.4.
22.11 Civil emergencies: the provisions of this Clause 22 are subject to the
provisions of Clause 61.9.
23. COMMITTEE MEMBERS' RESPONSIBILITIES AND PROTECTIONS
23.1 Executive Committee's responsibilities: in the exercise of its powers
and the performance of its duties and responsibilities under this
Agreement the Executive Committee shall at all times conduct itself and
its affairs in a manner which it considers best designed to give effect
to the principal objects and purpose set out in Clause 4.1.2 and to
promote, and not obstruct, the fair and efficient operation of the
procedures referred to in Clause 4.1.3 so that the objectives set out in
Clause 4.1.3 are thereby achieved. To the extent not inconsistent with
the responsibilities of the Executive Committee under this Clause 23.1 a
Committee Member shall be free to give effect to his responsibilities
under Xxxxxx 23.2 but each of the Pool Members whom such Committee
Member represents acknowledges and agrees the subordination of such
Committee Member's responsibilities under Clause 23.2 to the
responsibilities of the Executive Committee under this Clause 23.1
100
23.2 Committee Members' responsibilities: in the exercise of his powers and
the performance of his duties and responsibilities as a Committee Member
under this Agreement a Committee Member shall represent:
23.2.1 where he is appointed on the first round of voting under Xxxxxx
15.2.4, the interests of the Pool Member who cst the most number
of votes in favour of his appointment;
23.2.2 where he is appointed on the second or third round of voting
under Clause 15.2.4 or where he is appointed pursuant to Section
6 of Schedule 14, the interests of all Pool Members who were
entitled to vote on his appointment, (and, for the purposes of
this Clause, until the annual general meeting of Pool Members in
1995 Central Power shall be deemed to be a Pool Member who was
entitled to vote on the appointment of the Committee Member
appointed on the second round of voting), but so that he shall
not incur personal liability as against one or more such Pool
Members if, acting bona fide, he acts in a way which gives
effect to the interests of one or more other such Pool Members;
and
23.2.3 where he is appointed by Groups A, B, C or D pursuant to
Schedule 14, the interests of all PES Members (as defined in
Schedule 14).
23.3 Protections:
23.3.1 the Executive Committee, each Committee Member, the Pool
Chairman, the Chief Executive (if any) and the Secretary shall
be entitled to rely upon any communication or document
reasonably believed by it or him to be genuine and correct and
to have been communicated or signed by the person by whom it
purports to be communicated or signed and shall not be liable to
any of the Parties for any of the consequences of such reliance.
23.3.2 The Executive Committee, each Committee Member, the Pool
Chairman, the Chief Executive (if any) and the Secretary may in
relation to any act, matter or thing contemplated by this
Agreement act on the opinion or advice of, or any information
from, any lawyer, banker, valuer, broker, accountant or any
other specialist or professional adviser given within the field
of expertise usually ascribed to persons of such description or
the specialist field of expertise for which he has been retained
and duly instructed so to act by the Executive Committee, and
shall not be liable for the consequences of so acting. The
appointment of any such adviser to the Executive
101
Committee shall be approved by the Executive Committee before
any such cost is charged to the PFA Accounting Procedure.
23.3.3 In the event of any conflict or inconsistency, any directions
and instructions of the Director (which the Director's entitled
under his statutory or regulatory powers to issue or give) shall
prevail over the duties and responsibilities of the Executive
Committee or the Secretary under this Agreement and no liability
whatsoever shall attach to the Executive Committee or any
Committee Member or the Pool Chairman or the Chief Executive (if
any) or the Secretary (as the case may be) as a result of due
compliance by it or him with any such directions and
instructions.
23.3.4 Each Committee Member shall be indemnified and kept indemnified
by that Pool Member or jointly and severally by those Pool
Members whom he represents as provided in Clause 23.2 (and, if
more than one, as between the relevant Pool Members rateably in
the proportion which their respective Contributory Shares bear
one to the other at the time of receipt of the request for
indemnification) from and against any and all costs (including
legal costs), charges, expenses, damages or other liabilities
properly incurred or suffered by him in relation to the
Executive Committee or his office as Committee Member or the due
exercise by him or his powers, duties and responsibilities as a
Committee Member and all claims, demands or proceedings arising
out of or in connection with the same except any such costs and
expenses referred to in Clause 23.4 which have been recovered in
accordance with the PFA Accounting Procedure and any such costs,
charges, expenses, damages or other liabilities which are
suffered or incurred or occasioned by the wilful default or bad
faith of, or breach of duty or trust by, such Committee Member.
The Pool Member or (as the case may be) Pool Members whom he
represents as aforesaid shall, upon request, provide the
relevant Committee Member with a written deed of indemnity to
that effect.
23.4 Committee Members' costs and expenses: each committee Member and each
member of any sub-committee or sub-group of the Executive Committee may
be paid his reasonable travelling, hotel and incidental expenses of
attending and returning from meetings of the Executive Committee or any
such sub-committee or sub-group and shall be paid all expenses properly
and reasonably incurred by him in the conduct of the business of the
Executive Committee or the relevant sub-committee or sub-group or in the
discharge of his duties as a Committee Member or (as the case may be) a
member of the relevant sub-committee or sub-group. All such expenses
shall be recovered in accordance with the PFA Accounting procedure.
102
23.5 Committee's costs and expenses: the Executive Committee and each of its
sub- committees and sub-groups shall be entitled to recover all its
costs and expenses reasonably incurred in accordance with the PFA
Accounting Procedure. For this purpose, the costs and expenses of the
Executive Committee shall include the reasonably incurred costs of any
business accommodation and services required by the Executive Committee,
the Chief Executive, the Secretary or the personnel referred to in
Clause 17.2.1 and the reasonably incurred costs and expenses of any
consultant or adviser retained by the Executive Committee or any such
person in the proper performance of its or his duties and
responsibilities.
24. POWERS OF THE EXECUTIVE COMMITTEE
24.1 General power: subject as otherwise provided in this Agreement, the
Executive Committee shall, as between itself and the Pool Members in
general meeting, exercise overall supervision of the Settlement System
and its operations.
24.2 Specific powers: subject as otherwise provided in this Agreement, the
powers, duties and responsibilities of the Executive Committee shall, as
between itself and the Pool Members in general meeting, include:-
24.2.1 the specific powers, duties and responsibilities set out in the
Pool Rules;
24.2.2 monitoring on a regular basis the Settlement System
Administrator in its operation of the Settlement System
(including deciding whether to propose to the Pool Members in
general meeting for their approval the removal of the Settlement
System Administrator);
24.2.3 the power to appoint and remove the Pool Funds Administrator and
to carry out the other functions ascribed to it in Schedules 11
and 15 and to enter into on behalf of Pool Members any agreement
or arrangement with the Pool funds Administrator (or successor
Pool Funds Administrator) in substitution for that set out in
Schedule 15;
24.2.4 monitoring on a regular basis each of the Grid Operator and the
Ancillary Services Provider in the performance of its
obligations under this Agreement;
24.2.5 considering applications by New Parties to be admitted as
parties to this Agreement under Clause 3 and of Parties to be
admitted as Pool Members under Clause 8;
24.2.6 considering, amending, substituting, approving and disapproving
all Agreed Procedures and Codes of Practice (including
commissioning
103
reviews thereof by the Pool Auditor in accordance with Clause
47.1.5 or by other technical experts);
24.2.7 where provided in Schedule 4, considering, revising, approving
or disapproving all budgets and authorities for capital
expenditure prepared and submitted to it by the Settlement
System Administrator in accordance with the Accounting
Procedure;
24.2.8 commissioning and review Value For Money Audits in accordance
with the Accounting Procedure;
24.2.9 the specific powers, duties and responsibilities set out in
Schedule 15;
24.2.10 appointing and removing the Pool Auditor, and instructing the
Pool Auditor to conduct audits, reviews, tests and checks and
the monitoring and review thereof, all in accordance with Part
IX;
24.2.11 opening, maintaining and closing bank accounts for its own
purposes and crediting and debiting sums thereto;
24.2.12 controlling the development of the Software and/or the
Specification, considering, revising and approving or
disapproving changes to the Software and/or the Specification,
and considering, revising and approving or disapproving all
proposals to change the Hardware;
24.2.13 controlling the development of the Pool Rules and considering
and approving or disapproving amendments to the Pool Rules;
24.2.14 commissioning independent reviews of the Scheme and its
operation in accordance with Part XIII;
24.2.15 conducting reviews, preparing Works Programmes and implementing
Transitional Arrangements, all in accordance with Clause 5;
24.2.16 preparing the reports referred to in Clause 9.1.1 and the
business plan referred to in Clause 9.1.6 and preparing and
despatching regular quarterly reports to the Parties (with a
copy to the Director) in relation to all matters which are the
subject of this Agreement and in such reports reviewing
performance over the immediately preceding Quarter against the
business plan referred to in Clause 9.1.6;p
24.2.17 considering any representation from any Pool Member in relation
to any regular quarterly report prepared pursuant to Clause
24.2.16 above
104
or otherwise relating to any matter which is the subject of this
Agreement;
24.2.18 overseeing the standards of Metering Equipment and the Codes of
Practice, agreeing in accordance with paragraph 14 of Schedule
21 dispensations therefrom and reviewing the need for new
standards for Metering Equipment and, where it considers such
new standards are required, adopting such standards in
accordance with the requirements for adoption of Codes of
Practice (as contained in the definition of Code of Practice)
and in accordance with the provisions of Schedule 21;
24.2.19 dealing promptly and efficiently with any dispute referred to it
concerning Settlement or its operation (including with respect
to data);
24.2.20 convening in accordance with Clause 9.4 general meetings of Pool
Members or classes of Pool Members and convening in accordance
with Clause 9.6 quarterly meetings of Pool Members;
24.2.21 appointing, remunerating and removing the Chief Executive in
accordance with Clause 17.1 and, where permitted by the terms of
this Agreement, giving directions and instructions to the Chief
Executive (if any), the Settlement System Administrator, the
Pool Funds Administrator, the Grid Operator, the Ancillary
Services Provider, Externally Interconnected Parties (not being
Pool Members) and other persons to carry into effect the
decisions of the Executive Committee or Pool Members in general
meeting or separate general meeting;
24.2.22 if requested by the Director, conveying any direction or request
of the Director to the Settlement System Administrator, the Pool
Funds Administrator, the Grid Operator, the Ancillary Services
Provider or any other Party or the Pool Auditor;
24.2.23 appointing, remunerating and removing in accordance with the
Grid Code one or more persons to represent the Executive
Committee on the Grid Code Review Panel;
24.2.24 appointing, remunerating and removing lawyers, bankers, valuers,
brokers, accountants and other professional and specialist
advisers to assist the Executive Committee or any of its
sub-committees in the performance of its duties and
responsibilities under this Agreement;
105
24.2.25 subject to any applicable confidentiality provisions, monitoring
any litigation, arbitration or other proceedings affecting or
which may affect the Settlement System;
24.2.26 subject to any applicable confidentiality provisions, advising
Pool Members, Externally Interconnected Parties (not being Pool
Members), the Settlement System Administrator, the Pool Funds
Administrator, the Grid Operator and the Ancillary Services
Provider of decisions of the Executive Committee applicable to
them or the relevant one(s) of them and liaising with all such
persons on an ongoing and regular basis;
24.2.27 advising each of the Pool Auditor and the Director of decisions
of the Executive Committee and of Pool Members in general
meeting or separate general meeting and liaising with each of
the Pool Auditor and the Director on an ongoing and regular
basis;
24.2.28 investigating any complaints made by any Pool Member concerning
the Settlement System, the Funds Transfer System (or any part or
aspect of any thereof), the Settlement System Administrator, the
Pool Funds Administrator, the Grid Operator, the Ancillary
Services Provider, the Pool Auditor, the Pool Banker or the
Custodian;
24.2.29 approving the Pool Banker and giving instructions for, or
consenting to, the removal of the same;
24.2.30 reviewing and approving or disapproving the Procedures Manual in
accordance with Clause 64;
24.2.31 considering and dealing with any other matter relating to the
Settlement System, the Funds Transfer System (or any part or
aspect of any thereof) or its or their operation referred to the
Executive Committee by the Pool Members in general meeting or
separate general meeting, any Pool Member, the Pool Chairman,
the Pool Auditor or the Director and any other matter which is
otherwise designated under this Agreement for reference to it;
and
24.2.32 determining the amount of the Second Tier Suppliers' System
Charge for the purpose of Section 6.3 of Part C of Schedule 4.
24.3 Exclusion of general meeting powers: Pool Members in general meeting
shall have no powers in relation to the matters expressly reserved under
this Agreement to the Executive Committee except to the extent that such
matters are remitted to the Pool Members in general meeting under Clause
13.4.
106
PART V
LIMITATION OF LIABILITY
25. LIMITATION OF LIABILITY
25.1 Limitation of liability: subject to Clause 25.2 and save where any
provision of this Agreement provides for an indemnity, each Party agrees
and acknowledges that no Party (excluding for this purpose the
Settlement System Administrator) (the "Party Liable") or any of its
officers, employees or agents shall be liable to any of the other
Parties for loss arising from any breach of this Agreement other than
for loss directly resulting from such breach and which at the date of
this Agreement was reasonably foreseeable as not unlikely to occur in
the ordinary course of events from such breach in respect of:-
25.1.1 physical damage to the property of any of the other Parties or
its or their respective officers, employees or agents; and/or
25.1.2 the liability of any such other Party to any other person for
loss in respect of physical damage to the property of any other
person.
25.2 Death and personal injury: nothing in this Agreement shall exclude or
limit the liability of the Party Liable for death or personal injury
resulting from the negligence of the Party Liable or any of its
officers, employees or agents and the Party Liable shall indemnify and
keep indemnified each of the other Parties, its officers, employees or
agents from and against all such and any loss or liability which any
such other Party may suffer or incur by reason of any claim on account
of death or personal injury resulting from the negligence of the Party
Liable or any of its officers, employees or agents.
25.3 Exclusion of certain types of loss: subject to Clause 25.2 and save
where any provision of this Agreement provides for an indemnity, neither
the Party Liable nor any of its officers, employees or agents shall in
any circumstances whatsoever be liable to any of the other Parties for:-
25.3.1 any loss of profit, loss of revenue, loss of use, loss of
contract or loss of goodwill; or
25.3.2 any indirect or consequential loss; or
25.3.3 loss resulting from the liability of any other Party to any
other person howsoever and whensoever arising save as provided
in Clauses 25.1.2 and 25.2.
107
25.4 Trust: each Party acknowledges and agrees that each of the other Parties
holds the benefit of Clauses 25.1, 25.2 and 25.3 for itself and as
trustee and agent for its officers, employees and agents.
25.2 Survival: each of Clauses 25.1, 25.2, 25.3 and 25.4 shall:-
25.5.1 be construed as a separate and severable contract term, and if
one or more of such Clauses is held to be invalid, unlawful or
otherwise unenforceable the other or others of such Clauses
shall remain in full force and effect and shall continue to bind
the Parties; and
25.5.2 survive termination of this Agreement.
25.6 Saving: for the avoidance of doubt, nothing in this Part V shall prevent
or restrict any Party enforcing any obligation (including suing for a
debt) owed to it under or pursuant to this Agreement.
25.7 Full negotiation: each Party acknowledges and agrees that the foregoing
provisions of this Part V have been the subject of discussion and
negotiation and are fair and reasonable having regard to the
circumstances as at the date of this Agreement.
108
PART VI
THE SETTLEMENT SYSTEM ADMINISTRATOR
26. APPOINTMENT
NGC Settlements Limited is hereby appointed by each Pool Member and
agrees to act as the initial Settlement System Administrator on and
subject to the terms and conditions of this Agreement.
27. RESIGNATION AND REMOVAL
27.1 Resignation: subject:-
27.1.1 to the Settlement System Administrator having demonstrated to
the satisfaction of the Director good cause for its resignation;
and
27.1.2 as provided in Clauses 27.5 and 27.6,
the Settlement System Administrator may at any time on or after the
third anniversary of the Effective Date resign as Settlement System
Administrator having given to the Secretary (who shall forthwith notify
all Pool Members) and the Director not less than 12 months' notice in
writing of its intention so to do.
27.2 Good cause for resignation: examples of good cause for the purposes of
Clause 27.1.1 may include the following:-
27.2.1 a failure on the part of the Settlement System Administrator
(all relevant circumstances being taken into account) to achieve
a reasonable rate of return from the Settlements Business (not
being a failure occasioned by the Settlement System
Administrator's own default, negligence or inefficient
management); and
27.2.2 a failure on the part of the Settlement System Administrator to
receive all or a not insignificant part of its budgeted income
in any Accounting Period, not being:-
(a) a failure which could have been avoided by proper and
efficient debt collection or could adequately be cured
by a provision for bad debts in the then current or next
succeeding Budget; or
(b) a failure which is remedied within a reasonable time
(and in any event within 120 days) after the Settlement
System Administrator has given the defaulting Pool
Member(s) and the
109
Executive Committee notice of such failure and requiring
the same to be remedied.
For the avoidance of doubt, the Parties hereby acknowledge and
agree that an application by the Settlement System Administrator
to the Director to resign shall not, of itself, constitute good
cause.
27.3 Removal: subject:-
27.3.1 to good cause for the removal of the Settlement System
Administrator having been demonstrated to the satisfaction of
the Director; and
27.3.2 as provided in Clauses 27.5 and 27.6.
the Settlement System Administrator may at any time on or after the
third anniversary of the Effective Date be removed as Settlement System
Administrator by:-
(a) resolution of the Pool Members in general meeting passed
by Pool Members holding not less than 80 per cent. of
the Total Votes of Pool Members who are entitled to vote
in person or by proxy at a general meeting of Pool
Members or deemed effective pursuant to Clause 13.5; and
(b) the giving by the Executive Committee to the Settlement
System Administrator after such resolution has been
passed or deemed effective (which the Executive
Committee shall promptly do) of not less than 6 months'
notice in writing of such removal (or such other period
as the Director may determine in response to the
application made to him for the purposes of Clause
27.3.1).
27.4 Good cause for removal: examples of good cause for the purposes of
Clause 27.3.1 may include the following:-
27.4.1 the failure by the Settlement System Administrator in any
persistent, material respect or in any single, major respect to
perform or comply with any of the obligations expressed to be
assumed by it under this Agreement and such default (if capable
of remedy) is not remedied within a reasonable period of time
after the Executive Committee has given notice to the Settlement
System Administrator of the occurrence thereof and requiring the
same to be remedied;
27.4.2 the revocation or determination or cessation in force for any
reason whatsoever of the Condition of the Transmission Licence
applicable to the Settlement System Administrator requiring the
Settlement System
110
Administrator to implement, maintain and operate a settlement
system; and
27.4.3 the Settlement System Administrator:-
(a) is unable to pay its debts (within the meaning of
section 123(1) or (2) of the Insolvency Act 1986, but
subject as hereinafter provided in this Clause 27.4.3)
or if any voluntary agreement is proposed in relation to
it under section 1 of that Act or enters into any scheme
of arrangement (other than for the purpose of
reconstruction or amalgamation upon terms and within
such period as may previously have been approved in
writing by the Executive Committee);
(b) has a receiver (which expression shall include an
administrative receiver within the meaning of section 29
of the Insolvency Act of 1986) of the whole or any
material part of its assets or undertaking appointed;
(c) has an administration order under section 8 of the
Insolvency Act of 1986 made in relation to it;
(d) passes any resolution for winding-up other than a
resolution previously approved in writing by the
Executive Committee; or
(e) becomes subject to an order by the High Court for
winding-up.
For the purposes of paragraph (a) above section 123(1)(a) of the
Insolvency Act of 1986 shall have effect as if for
"(pound)250,000" and, further, the Settlement System
Administrator shall not be deemed to be unable to pay its debts
for the purposes of paragraph (a) above if any such demand as is
mentioned in the said section is being contested in good faith
by the Settlement System Administrator with recourse to all
appropriate measures and procedures.
For the avoidance of doubt, the Parties hereby acknowledge and agree
that a resolution of Pool Members in general meeting to remove the
Settlement Administrator shall not, of itself, constitute good cause.
27.5 Referral to the Director: the Parties agree that the Settlement System
Administrator shall not be entitled to resign under Xxxxxx 27.1 and
shall not be removed under Clause 27.3 unless the Director shall have
notified the Settlement System Administrator and the Executive Committee
(which shall promptly notify all the other
111
Parties) that he is satisfied that good cause has been demonstrated for
such resignation or removal.
27.6 Appointment of successor: any resignation by or removal of the
Settlement System Administrator pursuant to Clause 27.1 or 27.3 shall
not take effect until a successor Settlement System Administrator shall
have been appointed and shall have accepted such appointment and the
Settlement System Administrator shall continue to perform and discharge
its duties and responsibilities under this Agreement until such
appointment and acceptance. Subject as provided in Clause 27.7:-
27.6.1 during the period of notice of resignation provided in Clause
27.1 the Executive Committee shall have the right to appoint a
successor but, if none is so appointed, the Settlement System
Administrator shall have the right to appoint a successor; and
27.6.2 upon removal of the Settlement System Administrator under Clause
27.3 the Executive Committee shall have the right to appoint a
successor.
27.7 Approval of the Director: the Parties undertake with each other that no
successor Settlement System Administrator shall be appointed without the
written approval of the Director first having been obtained.
27.8 Discharge: if a successor to the Settlement System Administrator is
appointed under the provisions of Clause 27.6 and accepts such
appointment, the retiring or removed Settlement System Administrator
shall (save as provided in Clause 28 and save as regards any rights and
liabilities accrued as at the date of retirement or removal) be
discharged from any further obligation and shall have no further rights
under this Agreement but shall remain entitled to the benefit of the
provisions of Clauses 32 and 33 and any other provision of this
Agreement providing for an indemnity in favour of the Settlement System
Administrator, and its successor and (save as provided in this Clause
27.8) each of the other Parties shall have the same rights and
obligations amongst themselves as they would have had if such successor
had been a party to this Agreement in place of the retiring or removed
Settlement System Administrator.
28. TRANSFER OF RESPONSIBILITIES AND ASSETS
28.1 Transfer of responsibilities and assets: upon a successor Settlement
System Administrator being appointed under Clause 27.6 and accepting
such appointment the retiring or removed Settlement System Administrator
shall:-
28.1.1 transfer to such successor all copies of all Software belonging
to the Settlement System Administrator together with all rights
therein vested in the Settlement System Administrators;
112
28.1.2 use all reasonable endeavours to novate, or procure the novation
of, any licence or other agreement to use and/or maintain the
Software to such successor;
28.1.3 when no longer reasonably required by the Settlement System
Administrator to perform its duties and responsibilities under
this Agreement, transfer to such successor all Hardware
belonging to the Settlement System Administrator and required by
such successor to carry out such successor's duties and
responsibilities under this Agreement and necessary for the
proper functioning of the Settlement System;
28.1.4 make over to such successor all such records, manuals and data
and other information in the ownership or under the control of
the settlement System Administrator and relating to the
operation, and necessary for the proper functioning, of the
Settlement System, provided that, until such time as no longer
reasonably required by the Settlement System Administrator for
its operation hereunder of the Settlement System, the Settlement
System Administrator may retain copies of all such records,
manuals, data or other information solely for that purpose;
28.1.5 provide such training and systems support as such successor may
reasonably require and for such period as such successor may
reasonably require to enable such successor to carry out its
duties and responsibilities under this Agreement; and
28.1.6 without prejudice to the foregoing provisions of this Clause 28,
transfer or otherwise make available to such successor all
assets (excluding freehold and leasehold property), equipment,
facilities, rights, know-how and transitional assistance which
it possesses and which is necessary for such successor to have
to operate the Settlement System in accordance with this
Agreement and which is not otherwise readily obtainable by such
successor,
in each case on such reasonable terms (other than as to consideration)
as may be agreed between the Settlement System Administrator, such
successor and the Executive Committee (and, in default of agreement, the
dispute shall be referred to arbitration in accordance with Clause 83)
and in consideration of the payment of such sums as are referred to in
Clause 28.2. The Settlement System Administrator further agrees, in
consideration of the payment of such sums as are referred too in Clause
28.2, to co-operate with any such successor and the Executive Committee
so that the transfer of duties, responsibilities, assets and know-how to
such successor is carried
113
out causing as little disruption to the operation of the Settlement
System and inconvenience to the Parties as is practicable in all the
circumstances.
28.2 Costs of transfer:
28.2.1 the consideration referred to in Clause 28.1 is:
(a) in respect of all Software, Hardware, records, manuals,
data and other information referred to in Clauses
28.1.1, 28.1.3 and 28.1.4, the net book value of the
same at the date of transfer (which net book value shall
not be written up without the prior written consent of
the Executive Committee, such consent not to be
unreasonably withheld or delayed); and
(b) in respect of the training and systems support referred
to in Clause 28.1.5, the co-operation referred to in the
last sentence of Clause 28.1 and such other matters as
are within Clause 28.1.6 but not paragraph (a) above,
such reasonable amount as may be agreed between the
Settlement System Administrator, the successor and the
Executive Committee (and, in default of agreement, the
dispute shall be referred to arbitration in accordance
with Clause 83).
28.2.2 Where, during its appointment under this Agreement as Settlement
System Administrator, the Settlement System Administrator has at
the request of the Executive Committee purchased assets for use
solely for the purposes of the Settlements Business (not being
assets transferred or to be transferred pursuant to Clause 28.1)
the Pool Members shall use all reasonable endeavours to procure
that the successor to the Settlement System Administrator shall
acquire from the Settlement System Administrator at the
Settlement System Administrator's request all or any of such
assets on such reasonable terms (other than as to consideration)
as may be agreed between the Settlement System Administrator,
such successor and the Executive Committee (and, in default of
agreement, the dispute shall be referred to arbitration in
accordance with Clause 83) and at their respective net book
values at the date of acquisition by such successor (which net
book values shall not be written up without the prior written
consent of the Executive Committee, such consent not to be
unreasonably withheld or delayed).
28.2.3 (a) With respect to the removal of the Settlement System
Administrator, if in giving notice pursuant to Clause
27.5 the Director shall state that in his opinion the
removal of the Settlement System Administrator is not
occasioned in any
114
material respect by fault, negligence or inefficient
management on the part of the Settlement System
Administrator, the Settlement System administrator's
costs and expenses of, or directly associated with, its
removal (including any redundancy or relocation costs or
expenses and any costs and expenses arising from the
vacation or surrender of any premises or disposal or its
own redeployment of any plant or equipment used in the
Settlements Business) (the "Unwinding Costs") shall be
borne as to 50 per cent. by the Settlement System
Administrator and as to 50 per cent. by the Pool Members
(and as between the Pool Members according to their
respective Contributory Shares at the date of removal).
(b) With respect to the resignation of the Settlement System
Administrator, if in giving notice pursuant to Clause
27.5 the Director shall state that in his opinion good
cause has been demonstrated on the basis of the grounds
set out in Clause 27.2.1 or 27.2.2, the Unwinding Costs
of the Settlement System Administrator shall be borne
exclusively by the Pool Members (and as between the Pool
Members according to their respective Contributory
Shares at the date of resignation).
(c) In any other case, the Settlement System Administrator
shall bear all its Unwinding Costs.
28.2.4 Any payment made by all or any of the Pool Members to the
Settlement System Administrator under this Clause 28 shall be
without prejudice to any rights and remedies which the Pool
Members (or any of them) may have against the Settlement System
Administrator arising under this Agreement.
115
PART VII
THE SETTLEMENT SYSTEM ADMINISTRATOR'S RESPONSIBILITIES
29. RESPONSIBILITIES
Responsibilities: the Settlement System Administrator shall have the
following general duties, responsibilities and obligations under this
Agreement:-
29.1 The Settlement System: on and subject to the terms and conditions of
this Agreement, compliance with its obligations under this Agreement in
respect of the day-to-day operation of the Settlement System;
29.2 Back-up arrangements: In accordance with such requirements as the
Executive Committee may from time to time notify to it, the maintenance
at one or more sites separate from the site(s) (the "Primary Site")
where the day-to-day operation of the Settlement system is carried out
of up-to-date copies of the software, appropriate computer hardware,
other facilities, records and data such that, upon any breakdown in the
operation of the settlement System at the Primary Site, the day-to-day
operation thereof can be transferred and run from the separate site or
sites at such levels and to such standards of performance as the
Executive committee may from time to time so notify, provided that the
Settlement System Administrator shall not be obliged to take any action
in this regard until the date falling six months after the Effective
date;
29.3 Budgets: compliance with its obligations under Schedule 4;
29.4 Metering: compliance with its obligations under Part XV and Schedule 21;
29.5 Works Programmes: subject to the availability of resources, co-operation
in the preparation, finalisation and implementation of all Works
Programmes in respect of which the Settlement System Administrator is
not appointed Project Manager;
29.6 Recommendations: at the request of the Executive Committee or of its own
initiative, the recommendation to the Executive Committee of changes to
this Agreement, the Settlement System, the Pool Rules, the
Specification, the Hardware, the Software, the Agreed Procedures and the
Codes of Practice (or any part or aspect of any thereof);
29.7 Instructions: subject as provided in Clause 31.3, the implementation of
all directions and instructions advised to it under this Agreement by
the Executive Committee;
29.8 Records:
29.8.1 the maintenance of such records, data and other information as
the Pool Auditor may from time to time (after consultation with
the Executive
116
Committee) by notice in reasonable detail to the Settlement
System Administrator require for the purposes of Part IX or as
may otherwise be reasonably necessary to enable the Settlement
System Administrator to comply promptly and fully with all its
obligations under this Agreement and to facilitate the operation
of the Fuel Security Code; and
29.8.2 the retention in machine readable form for a period of not less
than eight years (or such longer period as the Executive
Committee may from time to time reasonably require) and in
electronic or hard copy form (which for these purposes shall
include microfiche) for a period of not less than one year of
the records, data and other information referred to in Clause
29.8.1 (such records, data and other information to include, to
the extent not already included, that specified in Appendix 4 to
Schedule 9);
provided that this obligation shall cease to apply to the Settlement
System Administrator which has resigned or been removed to the extent
that it has complied with its obligations under Clause 28.1;
29.9 Provision of information (1): subject to any statutory or Licence
obligations, the provision to the Executive Committee upon request of
reports, data and other information concerning the Settlement System
(other than information which is exclusively confidential to and the
property of the Settlement System Administrator) required by the
Executive Committee and which the Settlement System Administrator is
required to retain under Clause 29.8. Each of the Parties agrees to the
release of all such reports, data and other information in the
circumstances described in this Clause 29.9;
29.10 Provisions of information (s): the provision to the Pool Auditor upon
request of reports, data and other information concerning the Settlement
System required by the Pool Auditor and which the Settlement System
Administrator is required to retain under Clause 29.8. Each of the
Parties agrees to the release of all such reports, data and other
information in the circumstances described in this Clause 29.10;
29.11 Provision of information (3): the provision to each Pool Member and the
Ancillary Services Provider upon request of a certified copy of such
records, data and other information concerning amounts payable by or to
such Pool Member and the Ancillary Services Provider as such Pool Member
may reasonably request for the purpose of establishing the amounts which
are owed to or by such Pool Member in accordance with this Agreement,
and in any event such information as any Pool Member may request from
the Settlement System Administrator in order to establish or prove a
claim to any amounts due or claimed to be due. The Settlement System
Administrator shall provide such information forthwith upon request or
(if so
117
required by the Settlement System Administrator) upon delivery of a
certificate from the Pool Member's counsel certifying that such
information is required for such purpose. Each of the Parties agrees to
the release of all such records, data and other information in the
circumstances described in this Clause 29.11;
29.12 Pool Rules: those specific duties and responsibilities ascribed to it in
the Pool Rules:
29.13 Operation of the Settlement System: the operation of the software in
accordance with the Pool rules and the proper employment of the Hardware
in the carrying out of its duties and responsibilities and the
performance of its obligations in respect of its operation of the
Settlement System;
29.14 Arrangements with the Grid Operator and Ancillary Services Provider:
each of the Settlement System Administrator, the Grid Operator and the
Ancillary Services Provider shall make and maintain arrangements with
each other whereby such data and other information as may be collected
or received by any of them or necessary for the purposes of the
Settlement System, the Ancillary Services Business or (as the case may
be and subject to Clause 69) the operation of the NGC Transmission
System or the performance by the Grid Operator of its obligations under
the NGC Transmission Licence shall be provided to such other(s) to the
extent necessary to enable such other(s) to perform its or their
respective obligations under this agreement, the Grid Code, any
Ancillary Services Agreement and/or the NGC Transmission Licence. Each
of the Parties agrees to the release of all such data and other
information in the circumstances described in this Clause 29.14;
29.15 Arrangements with the Pool Funds Administrator: the Settlement System
Administrator and the Pool Funds Administrator shall make and maintain
arrangements with each other whereby:-
(a) sufficient data and other information is provided by the
Settlement System Administrator to the Pool Funds Administrator
as to enable the Pool Funds Administrator to perform its
obligations under this Agreement and the Funds Transfer
Agreement; and
(b) sufficient data and other information is provided by the Pool
Funds Administrator to the Settlement System Administrator as to
enable the Settlement System Administrator to perform its
obligations under this Agreement.
Each of the Parties agrees to the release of all such data and other
information in the circumstances described in this Clause 29.15;
29.16 Notification of arrangements: the provision, upon request, to the
Executive Committee of full details of its arrangements for the time
being in effect with each
118
of the Grid Operator, the Pool Funds Administrator and the Ancillary
Services Provider Preferred to in Clause 29.15 or (as the case may be)
29.15;
29.17 Provision of information (4): the provision to each Pool Member of a
report of the running of the Settlement System for each Settlement Day.
Such report may be provided to each Pool Member by electronic means via
data communication links or in such other manner as is agreed between
the Settlement System Administrator and the relevant Pool Member.
29.18 Estimates: without prejudice to its obligations under Section 17.8 of
Schedule 11, where the Settlement System Administrator is unable for
whatever reason to provide the Pool Funds Administrator with the actual
information required in respect of each Settlement Day for each Pool
Member and the Ancillary Services Provider, the provision to the Pool
Funds Administrator of its best estimates of that information by the
same time as it was required to provide the actual information. The
Settlement System Administrator shall promptly notify the Pool Funds
Administrator, the Ancillary Services Provider, each Pool Member, each
Externally Interconnected Party (not being a Pool Member), the Executive
Committee, the Pool Auditor and the Director that the information so
provided has been provided on an estimated, and not actual, basis;
29.19 Provisional determinations: where a provisional determination of any
dispute is required for the purposes of any run of Settlement (as
referred to in paragraph D of the Preamble to Section 9) the same shall
be made by the Settlement System Administrator in accordance with the
relevant Agreed Procedure or, if there is no such Agreed Procedure, on
such basis as the Settlement System Administrator shall reasonably
consider to be appropriate in all the circumstances. If the Settlement
System Administrator shall make any such provisional determination, it
shall promptly notify the Executive Committee in writing of the same and
shall give such details thereof as the Executive Committee may from time
to time request;
29.20 Other: subject to Clause 31.3, generally the carrying out of all such
technical, operative, executive, administrative and advisory services in
connection with the operation of the Settlement System as from time to
time may reasonably be required by the Executive Committee;
29.21 Availability testing: the giving of instructions to the Grid Operator to
conduct Availability Tests (as defined in paragraph 19.1.1 of Schedule
9), which the Grid Operator undertakes to conduct, all in accordance
with Section 19 of that Schedule.
119
30. INSURANCE RESPONSIBILITIES
30.1 Insurance requirements: subject to the availability in the insurance
market of such insurances, the Settlement System Administrator shall
effect and maintain in full force and effect with first class insurers
the following insurances:-
30.1.1 insurance with respect to (a) physical loss or damage to each of
the Hardware (including Second Tier Hardware) and Software
(including Second Tier Software) and (b) corruption of the
Software (including Second Tier Software) and related computer
data, in each case in an amount equivalent to its replacement
cost, except, with effect from 1st April, 1994, insofar as
concerns any Second Tier Hardware and Second Tier Software owned
and/or operated by any particular Second Tier Agent where such
Second Tier Agent has agreed with the Settlement System
Administrator substantially to the effect, inter alia, that:
(i) the Second Tier Agent will effect and maintain in full
force and effect with first class insurers insurance
with respect to (a) physical loss or damage to each of
such Second Tier Hardware and Second Tier Software and
(b) corruption of such Second Tier Software and related
computer data, in each case in an amount equivalent to
its correction cost;
(ii) the Second Tier Agent shall promptly on request provide
to the Settlement System Administrator an insurance
broker's certificate having a form and content as
specified in Clause 30.4 and evidence that the Second
Tier Agent has paid the relevant premiums; and
(iii) if the Second Tier Agent has not so insured and paid the
relevant premiums the Settlement System Administrator
shall, on behalf of the Second Tier Agent, take out such
insurance and pay such premiums and recover the cost of
the same from the Second Tier Agent; and
provided that, in the case of (iii) above, where:
(a) the Settlement System Administrator is aware
that the Second Tier Agent has not so insured in
accordance with (i) above; and
(b) a period of fourteen days since the Settlement
System Administrator first became aware that the
Second Tier Agent had not insured in accordance
with (i) above, has
120
elapsed, during which period the Second Tier
Agent has not so insured in accordance with (i)
above.
the Settlement System Administrator shall so take out
such insurances in the name of such Second Tier Agent
unless, after having sought, to the extent that it is
able, such information from the Second Tier Agent as is
necessary for the purposes of obtaining such insurances,
it has failed to obtain such information; and
30.1.2 professional indemnity insurance as Settlement System
Administrator in an amount of not less than "(pound)20,000,000"
any one claim and "(pound)20,000,000" all claims in any one year
(or such other amount as may from time to time be reasonably
required by the Executive Committee after consultation with the
Settlement System Administrator).
30.2 Costs: all premiums and other sums of money payable in respect of all
insurances effected or to be effected pursuant to Clause 30.1 where
borne by the Settlement System Administrator shall be recovered in
accordance with the Accounting Procedure.
30.3 Application of proceeds: the Settlement System Administrator shall use
all reasonable endeavors:
(i) in the case of insurance where its Second Tier Agent is the
insured, to procure that such Second Tier Agent makes and
collects claims promptly; and
(ii) in the case of insurances where its Second Tier Agent is the
insured, to procure that such Second Tier Agent makes and
collects claims promptly,
and shall apply and, as appropriate, shall procure that its Second Tier
Agent applies, all moneys so received by it in respect of the insurances
referred to in Clause 30.1 in or towards making good the loss and fully
repairing the damage or (as the case may be) satisfying the relevant
liability in respect of which such moneys were receivable or reimbursing
the cost of the same.
30.4 Information requirements: the Settlement System Administrator shall
promptly supply the Executive Committee upon request from time to time
with an insurance broker's certificate in form and content reasonably
satisfactory to the Executive Committee confirming that cover has been
effected, whether by it or its Second Tier Agent, in respect of the
insurances referred to in Clause 30.1 and giving reasonable details of
the terms and conditions of such insurance.
121
31. PERFORMANCE OF DUTIES
31.1 Independent contractor: in carrying out its duties and responsibilities
under this Agreement and otherwise in acting as Settlement System
Administrator hereunder, the Settlement System Administrator shall act
as an independent contractor and (unless expressly authorised to the
contrary) shall neither act nor hold itself out nor be held out as
acting as agent for any of the other Parties.
31.2 Delegation:
31.2.1 subject as provided in Clauses 31.2.2 and 31.2.3 the Settlement
System Administrator may delegate the performance of all or any
of its duties and responsibilities under this Agreement to
agents or contractors.
31.2.2 The Settlement system Administrator shall be entitled to
delegate the performance of all or any of its duties and
responsibilities under this Agreement (not being duties or
responsibilities which are in respect of any significant matter,
unless the prior written approval of the Executive Committee
under Clause 31.2.3 has been given).
31.2.3 In giving any such approval as is referred to in Clause 31.2.2
the Executive Committee shall specify the particular duties and
responsibilities which may be delegated and to whom and for what
period. On receipt of such approval the Settlement System
Administrator may delegate its duties and responsibilities only
to the extent of the terms of such approval.
31.2.4 As between the Settlement System Administrator and the other
parties, no delegation pursuant to this Clause 31.2 or pursuant
to Clause 60.15 nor the terms or conditions of any contract
pursuant to which any such delegation is effected shall relieve
the Settlement System Administrator of any of its duties or
responsibilities under this Agreement. The Settlement System
Administrator shall at all times properly supervise the
performance of all such delegates.
31.3 Compliance with Executive Committee's instructions:
31.3.1 subject to the other provisions of this Clause 31, the
Settlement System Administrator shall at all times observe and
comply with all directions and instructions of the Executive
Committee or the Chief Executive which fulfil the criteria set
out in Clause 31.3.2.
31.3.2 A direction or instruction of the Executive Committee or the
Chief Executive shall:-
122
(a) be clear and unequivocal (and a direction or instruction
shall be deemed such until such time as the Settlement
System Administrator requests any necessary
clarification);
(b) have due regard to the resources of the Settlement
System Administrator available to give effect to such
direction or instruction (and the Settlement System
Administrator shall promptly provide the Executive
Committee or the Chief Executive upon request from time
to time with full details of such available resources);
(c) not increase the duties, responsibilities or liabilities
of the Settlement System Administrator beyond those
contemplated under this Agreement without proper
compensation: for this purpose, without limitation, (a)
compensation for increased duties and responsibilities
shall be proper if the costs are included in the Budget
or, as appropriate, the Statement of Costs with a margin
in accordance with the Accounting Procedure or such
higher margin as may be appropriate to the level of such
increased duties or responsibilities, and (b)
compensation for increased liabilities shall be proper
if an indemnity is given to the Settlement System
Administrator which is reasonably satisfactory to it or
other compensation reasonably satisfactory to the
Settlement System Administrator is provided to it; and
(d) not conflict with the terms of this Agreement.
31.3.3 The Settlement System Administrator shall be entitled to rely
upon any direction or instruction of the Executive Committee or
the Chief Executive (if any) if the same is signed by way of
authority in accordance with Clause 31.6 on behalf of two or
more Committee Members or on behalf of the Chief Executive and
shall not be obliged to comply with any direction or instruction
of any sub-committee of the Executive Committee or any delegate
of the Executive Committee other than the Chief Executive
(unless such direction or instruction is shown as having been
ratified by the Executive Committee).
31.3.4 The Settlement System Administrator shall be entitled to rely
upon any communication or document reasonably believed by it to
be genuine and correct and to have been communicated or signed
by the person by whom it purports to be communicated or signed
and shall not be liable to any of the Parties for any of the
consequences of such reliance.
123
31.4 Compliance with the Director's directions: no liability whatsoever shall
attach to the Settlement System Administrator as a result of due
compliance by it with any directions and instructions of the Director,
provided that in complying with such directions and instructions the
Settlement System Administrator is at all times acting in good faith.
31.5 Prior approval: where by the terms of this Agreement the Settlement
System Administrator is required to obtain the prior directions,
instructions, approval or consent of the Executive Committee or the
Chief Executive, the Settlement System Administrator shall have no
authority to, and shall not, act unless the requisite directions,
instructions, approval or consent have first been obtained.
Notwithstanding the foregoing sentence, nothing in this Agreement shall
prevent the Executive Committee from ratifying any act of the Settlement
System Administrator.
31.6 Express authority: all directions and instructions of the Executive
Committee or the Chief Executive to the Settlement System Administrator
shall, as between the Settlement System Administrator and the Pool
Members, be deemed to have the express authority of, and shall be
binding without reservation upon, all Pool Members.
31.7 Authority of Pool Members: the Settlement System Administrator shall not
be bound to act in accordance with the directions or instructions of the
Pool Members unless the Pool Members act through the Executive
Committee.
31.8 General Meetings: the Settlement System Administrator shall not be
obliged to take any steps to ascertain whether any resolution of Pool
Members in general meeting or of any class of Pool Members in separate
general meeting which it is advised by the Executive Committee or the
Chief Executive as having been passed was in fact passed or passed by
the requisite majority and until the Settlement System Administrator
shall have express written notice to the contrary from the Executive
Committee or the Chief Executive it shall be entitled to assume that the
relevant resolution was passed or (as the case may be) the relevant
requisite majority was obtained.
31.9 Exceptions: notwithstanding the foregoing provisions of this Clause 31,
in the performance of its duties and responsibilities under this
Agreement the Settlement System Administrator shall not be bound to act
in accordance with the directions or instructions of the Executive
Committee or the Chief Executive if:-
31.9.1 to do so would cause the Settlement System Administrator to
breach any of its obligations under the Act or its Transmission
Licence; or
124
31.9.2 the Settlement System Administrator has reasonable grounds for
believing that it would so breach any of such obligations and
has consulted the Director and:-
(a) the Director has indicated that, notwithstanding any
such actual or potential breach, the Director would not
be minded to enforce compliance with those obligations
and the Settlement System Administrator has received an
indemnity reasonably satisfactory to it in respect of
its acting in accordance with such directions and
instructions.
In any such event the Settlement System Administrator shall promptly
notify the Executive Committee.
31.10 Reference to the Director: if at any time the Settlement System
Administrator has a concern which is properly and reasonably found that,
in acting in accordance with any direction or instruction of the
Executive Committee or the Chief Executive, it will breach one or more
of its obligations under the Act or its Transmission Licence, then, if
having discussed the matter with the Executive Committee the matter
remains unresolved, the Settlement System Administrator shall either
comply with such direction or instruction or by notice in writing refer
the same to the Director, such notice to set out in full the directions
or instructions given to the Settlement System Administrator and the
grounds for such concern and to be copied to the Executive Committee.
Pending any guidance from the Director in response to any such reference
and, provided that the Director shall not express any view that such
reference is misconceived, vexatious or in respect of an improperly or
unreasonably founded concern, the Settlement System Administrator shall
not be liable to any of the other Parties for refusing to act in
accordance with the relevant direction or instruction. If the Director
shall express such a view, the Settlement system Administrator shall be
so liable.
32. STANDARD OF CARE AND LIMITATION OF LIABILITY
32.1 Standard of care: in the exercise of its duties and responsibilities
under this Agreement the Settlement System Administrator shall exercise
that degree of care, diligence, skill and judgement which would
ordinarily be expected of a reasonably prudent operator of the
Settlement System taking into account the circumstances actually known
to the Settlement System Administrator, its officers and employees at
the relevant time or which ought to have been known to it or them had it
or they made such enquiries as were reasonable in the circumstances. In
particular, but without prejudice to the generality of the foregoing, in
the absence of directions and instructions given to it by the Executive
Committee under this Agreement and having due regard to the constraints
imposed on the Settlement System Administrator by the Accounting
Procedure and the resources available to it, the Settlement System
125
Administrator shall at all times conduct itself in a manner calculated
to achieve the principal objects and purpose of this Agreement set out
in Clauses 4.1.2 and 4.1.3.
32.2 Limitation of liability: subject to Clauses 32.3 and 39.7 and save where
any provision of this Agreement provides for an indemnity, each Party
agrees and acknowledges that neither the Settlement System Administrator
nor any of its officers, employees or agents shall be liable to any of
the other Parties for loss arising from any breach of this Agreement
other than for loss directly resulting from such breach and which at the
date of this Agreement was reasonably forseeable as not unlikely to
occur in the ordinary course of events from such breach in respect of:-
32.2.1 physical damage to the property of any of the other Parties or
its or their respective officers, employees or agents; and/or
32.2.2 the liability of any such other Party to any other person for
loss in respect of physical damage to the property of any other
person.
32.3 Death and personal injury: nothing in this Agreement shall exclude or
limit the liability of the Settlement System Administrator for death or
personal injury resulting from the negligence of the Settlement System
Administrator or any of its officers, employees or agents and the
Settlement System Administrator shall indemnify and keep indemnified
each of the other Parties, its officers, employees or agents from and
against all such and any loss or liability which any such other Party
may suffer or incur by reason of any claim on account of death or
personal injury resulting from the negligence of the Settlement System
Administrator or any of its officers, employees or agents.
32.4 Exclusion of certain types of loss: subject to Clauses 32.3 and 39.7 and
save where any provision of this Agreement provides for an indemnity,
neither the Settlement System Administrator nor any of its officers,
employees or agents shall in any circumstances whatsoever be liable to
any of the other Parties for:-
32.4.1 any loss of profit, loss of revenue, loss of use, loss of
contract or loss of goodwill; or
32.4.2 any indirect or consequential loss; or
32.4.3 loss resulting from the liability of any other Party to any
other person howsoever and whensoever arising save as provided
in Clauses 32.2.2 and 32.3
126
32.5 Trust: each Party acknowledges and agrees that each of the other Parties
holds the benefit of Clauses 32.2, 32.3 and 32.4 for itself and as
trustee and agent for its officers, employees and agents.
32.6 Survival: each of Clauses 32.2, 32.3, 32.4 and 32.5 shall:-
32.6.1 be construed as a separate and severable contract term, and if
one or more of such Clauses is held to be invalid, unlawful or
otherwise unenforceable the other or others of such Clauses
shall remain in full force and effect and shall continue to bind
the Parties; and
32.6.2 survive termination of this Agreement.
32.7 Saving: for the avoidance of doubt, nothing in this Clause 32 shall
prevent or restrict any Party enforcing any obligation (including suing
for a debt) owed to it under or pursuant to this Agreement.
32.8 Full negotiation: each party acknowledges and agrees that the foregoing
provisions of this Clause 32 have been the subject of discussion and
negotiation and are fair and reasonable having regard to the
circumstances as at the date of this Agreement.
33. INDEMNITY
33.1 Definition: in this Clause 33 "Losses" means all losses, costs,
damages, expenses, liabilities and claims suffered or incurred
by the Settlement System Administrator, its officers, employees
or agents, including the costs of management time incurred.
33.2 Indemnity (1); each Pool Member (or, in the case of any
agreement entered into for or on behalf of any class of Pool
Members, each Pool Member of that class) shall (but only in
respect of its Contributory Share at the time of receipt of the
request for indemnification) severally indemnify and keep
indemnified the Settlement System Administrator, its officers,
employees and agents against all Losses arising directly or
indirectly as a result of the Settlement System Administrator,
with the approval of Pool Members in general meeting or (as
appropriate) of any class of Pool Members in separate General
Meeting, entering into any agreement as agent for, or otherwise
on behalf of, the Pool Members and/or any class of Pool Members
and/or the Executive Committee (other than any Losses
recoverable under the Accounting Procedure or arising from the
wilful default, bad faith or negligence of, or breach of its
obligations under this Agreement by, the Settlement System
Administrator, its officers, employees or agents). For the
purposes of this Clause 33.2 the Pool Members in general meeting
shall be deemed to have approved the Escrow Agreement and each
Accession
127
Agreement executed prior to 1st October, 1991 and the relevant
class of Pool Members which are parties thereto shall be deemed
to have approved each deed of indemnity entered into in favour
of a Pool Chairman where his period of appointment began on or
before 1st April, 1993.
33.3 [Not used].
33.4 Litigation: the Settlement System Administrator shall not be obliged to
engage in any litigation or arbitration proceedings on behalf of the
Pool members or any of them or the Executive Committee but, if it does
agree to become engaged in any such proceedings, it shall be entitled,
inter alia, to an indemnity in its favour in form and content
satisfactory to it.
34. COSTS, FEES AND EXPENSES
34.1 Schedule 4: the provisions of Schedule 4 shall have effect.
34.2 Fees:
34.2.1 each Party which is not a Pool Member (other than the Settlement
System Administrator, the Pool Funds Administrator, the Grid
Operator and the Ancillary Services provider) shall pay the
Settlement System Administrator a fee in respect of the
provision to such Party of all data and other information which
is required by the terms and conditions of this Agreement to be
made available to it by the Settlement System Administrator save
where there is a specific provision in this Agreement for
payment in respect of such data or other information. Such fee
shall be an amount (exclusive of Untied Kingdom Value Added Tax)
determined by the Executive Committee in consultation with the
Settlement System Administrator to be the aggregate of (a) the
cost to the Settlement System Administrator of providing all
such data and other information or (as the case may be) such of
it as is requested by such Party, (b) the Permitted margin and
(c) such additional amount (if any) as the Executive Committee
shall from time to time determine. Such fee shall be payable
quarterly in arrears within 15 days after the issue by the
Settlement System Administrator of an invoice therefor or within
such other period as may be agreed from time to time by the
relevant Party and the Settlement System Administrator. All such
payments shall be made in sterling in cleared funds in full
without set- off or counter-claim, withholding or deduction of
any kind whatsoever but without prejudice to any other remedy.
In the event of any dispute regarding payment of such fees, no
Party may withhold payment of any invoiced amount but may refer
such dispute regarding payment of such fees, no Party may
withhold payment of any invoiced amount but may
128
refer such dispute to arbitration in accordance with Clause 83
following payment. The provisions of Section 2.3 of Part C of
Schedule 4 shall apply mutatis mutandis to any amount due to the
Settlement System Administrator pursuant to this Clause 34.2.1
which is not received on the due date.
34.2.2 For the purposes of this Clause 34.2 "Permitted Margin" means in
respect of any amount (the "Base Amount"), such amount as, when
added to the Base Amount, is equal to x per cent. of the sum of
such amount and the Base Amount, where x is equal to the
mid-range figure for the Net Xxxxxx of the Settlements Business
referred to in Section 8.1 of Part C of Schedule 4.
34.2.3 A Party may at any time by notice in writing to the Settlement
System Administrator elect not to be provided with all or some
of the data and other information to which it is entitled from
the Settlement System Administrator under this Agreement and xxx
change such election at any time upon further written notice to
the Settlement System Administrator.
34.3 Charges: the Executive Committee shall be entitled to require that a fee
or other charge (not exceeding(pound)500 per dispute or such other sum
as the Pool Members in general meeting may from time to time approve) be
levied on and paid by a Party in respect of any dispute concerning
Settlement or its operation (including with respect to data) referred by
such Party for determination to the Executive Committee or any
sub-committee thereof. Such fee or other charge shall be levied, paid
and collected in such manner and at such time as the Executive Committee
shall direct and the relevant Party hereby undertakes to pay any such
fee or other charge so levied. Any such fee or other charge shall at the
option of the Executive Committee (i) be refunded in whole or in part to
the Party which paid the same, or (ii) be applied against the
administration costs of whatsoever nature of the Executive Committee or
the relevant sub-committee and the surplus, if any, after payment in
full of all such costs shall be applied against the charges of the
Settlement System Administrator recoverable from all Pool Members under
Part C of Schedule 4.
34.4 Externally Interconnected Parties' costs:
34.4.1 an Externally Interconnected Party shall be entitled to recover
in accordance with this Clause 34.4 its costs and expenses
reasonably incurred in acting in accordance with this Agreement
as the Externally Interconnected Party for its Corresponding
External Pool Members (as defined in the Pool Rules).
129
34.4.2 Not later than 30 days after the beginning of each Accounting
Period (commencing with the Accounting Period beginning in 1992)
each Externally Interconnected Party shall submit in writing to
the Executive Committee for approval (such approval not to be
unreasonably withheld) reasonable details of the costs and
expenses anticipated as likely to be incurred by it in its
capacity as an Externally Interconnected Party in that
Accounting period and (commencing with the Accounting period
beginning in 1993) of the actual costs and expenses so incurred
by it in the immediately preceding Accounting Period. If
approved by the Executive Committee, all such costs and expenses
shall be recovered by an Externally Interconnected Party from
its Corresponding External Pool Members in accordance with
Clause 34.4.3. If not so approved, the Externally Interconnected
Party shall revise and resubmit to the Executive Committee the
said details as often as may be required in order to obtain such
approval.
10.4.3 Each Corresponding External Pool Member shall reimburse its
Externally Interconnected Party its due proportion of all its
Externally Interconnected Party's approved costs and expenses
within 28 days after receipt of an invoice from its Externally
Interconnected Party. The Externally Interconnected Party shall
issue invoices in respect of each Quarter on or after the
Quarter Day relating thereto. Invoices shall be based on
approved anticipated costs and expenses for the relevant
Accounting Period and the first invoice for each Accounting
Period (commencing with the Accounting Period beginning in 1993)
shall include any correction that may be necessary on account on
the approved actual costs and expenses being different from the
approved anticipated costs and expenses for the immediately
preceding Accounting Period.
34.4.4 For the purposes of this Clause 34.4 a Corresponding External
Pool Member's due proportion of its Externally Interconnected
Party's approved costs and expenses for each Quarter shall be
calculated as follows:-
(a) the aggregate of the Externally Interconnected Party's
approved costs and expenses shall be divided by two;
(b) as to one half of such approved costs and expenses, the
Corresponding External Pool Member's due proportion
shall be the proportion which the sum of (i) the number
of its Generation Trading Blocks and (ii) one
(representing the notional Consumer referred to in
paragraph 26.5.2(d) of the Pool Rules) bears to the sum
of (a) the total number of the
130
Generation Trading Blocks of all Corresponding External
Pool Members the Externally Interconnected Party of
which is the same as that for the Corresponding External
Pool Member in question and (b) the number of all such
Corresponding External Pool Member shall for this
purpose be allocated at least one Generation Trading
Block; and
(c) as to the other half of such approved costs and
expenses, the Corresponding External Pool Member's due
proportion shall be the proportion which its Gross
Traded Energy for the Quarter in question bears to the
aggregate of the Gross Traded Energy for that Quarter of
all Corresponding External Pool Members the Externally
Interconnected Party of which is the same as that for
the Corresponding External Pool Member in question, and
for this purpose "Gross Traded Energy" in respect of any
Quarter and any Corresponding External Pool member shall
be the aggregate amount of Active Energy (measured in
kWh) bought and sold pursuant to this Agreement by such
Corresponding External Pool member in its capacity as
such in that Quarter.
34.4.5 The foregoing provisions of this Clause may be amended or varied
in respect of an Externally Interconnected Party and its
Corresponding External Pool Members (or any of them) by prior
written agreement of that Externally Interconnected Party, all
its Corresponding External Pool Members and the Executive
Committee.
131
PART VIII
THE SETTLEMENT SYSTEM AND COMPUTER OPERATIONS
35. DEVELOPMENT OF THE SETTLEMENT SYSTEM
35.1 Development: the Settlement System shall be developed under the overall
control of the Executive Committee. All developments of and changes to
the Computer Systems shall be made in accordance with the terms of the
Development Policies.
35.2 Delegation: save as provided by the Development Policies, the Executive
Committee shall be entitled to delegate all or any of its rights, powers
and duties under Clause 35.1 and the Development Policies to such
person(s) and on such terms and conditions as from time to time it may
see fit.
33.3 Development Policies:
35.3.1 (a) The matters addressed by the Development Policies are
set out in the list of contents in the Development
Policies. These general headings define the scope of the
Development Policies.
(b) The scope of the Development Policies may be amended at
any time and from time to time by written agreement of
the Executive Committee and the Settlement System
Administrator.
(c) Any amendment to any of the matters addressed by the
Development Policies or any addition or substitution to
the Development Policies which does not extend or
restrict (other than in a way or to an extent which can
reasonably be regarded as de minimis) the scope of the
Development Policies may be made at any time and from
time to time, and shall be effective if so made, by the
Executive Committee after consultation with the
Settlement System Administrator unless such matter is
one covered by the headings in Schedule 16 in which
event such amendment, addition or substitution may be
made and shall be effective only by written agreement of
the Executive Committee and the Settlement System
Administrator.
35.3.2 Without prejudice to Clause 35.3.1(c), Schedule 16 may be
changed at any time and from time to time by written agreement
of the Executive Committee and the Settlement System
Administrator.
132
35.3.3 Each of the Parties undertakes to comply with (and the Pool
members undertake to ensure that the Executive Committee
complies with) the Development Policies.
35.3.4 In carrying out any development of the Settlement System the
omission of any step generally comprising the life cycle of any
project under the Development Policies or the omission,
substitution or modification of any standard, method or
procedure specified in the Development Policies shall be taken
into account in determining the liability of the Settlement
System Administrator under Clause 39, save where such step,
standard, method or procedure is omitted, substituted or
modified by the Settlement System Administrator, its employees,
officers or agents without the consent of the Executive
Committee or any authorised delegate of the Executive Committee.
35.4 Project Management:
35.4.1 in accordance with the following provisions of this Clause 35.4,
the Settlement System Administrator shall have the right and, at
the request of the Executive Committee, the obligation:-
(i) to procure the project management; and
(ii) to contract for all developments,
of the Settlement system or any stage or module thereof. In
connection with any such project management or contracting for
any such development the Settlement system Administrator shall
enter into agreements with persons (other than the Settlement
System Administrator or any of its employees) on such terms as
the Executive Committee may reasonably require.
35.4.2 The project manager of any development of the Settlement System
or any stage or module thereof shall be as agreed between the
Executive Committee and the Settlement System Administrator
taking into account inter alia such matters as
cost-effectiveness, quality and the competitive terms of such
project manager.
35.4.3 The functional and technical direction of any project manager of
a development of the Settlement System or any stage or module
thereof shall be given by the Executive Committee or any
sub-committee or sub-group thereof established to monitor the
particular development of the Settlement System or any stage or
module thereof for which such person is appointed as a project
manager, provided that the
133
management of the use of the Settlement System Administrator's
computing and human resources by any project manager so
appointed shall remain with the Settlement System Administrator.
The Settlement System Administrator shall be obliged and have
the right to attend any meeting of such sub-committee or
sub-group.
35.4.4 The Executive Committee or the particular sub-committee or
sub-group in respect of any development of the Settlement System
shall take into account all reasonable comments of the
Settlement System Administrator in relation to the
specification, design, testing and implementation requirements
of any development of the Settlement System where such comments
relate to the operational compatibility or consistency with the
Settlement System or the ability of the Settlement System
Administrator to comply with this Agreement, the Act or NGC's
Transmission Licence.
35.4.5 Where a person (other than the Settlement System Administrator
or any of its employees) is chosen to project manage a
development of the Settlement System or any stage or module
thereof, the Settlement System Administrator shall co-operate
with such project manager to the extent necessary to enable such
project manager properly to manage such development.
35.5 Provision of data and information: each Party shall ensure that all data
and information necessary to enable any testing of the Settlement System
or any development thereof or change thereto required under the
Development Policies and which is permitted to be released by the
Settlement System Administrator under the Pool Rules or as otherwise
expressly provided herein is supplied to the Executive Committee or as
it may direct and to the Settlement System Administrator, and each party
shall use all reasonable endeavours to co-operate with and support any
such testing.
35.6 Provision of data and information to authorised persons: the Parties
shall provide or ensure that the Settlement System Administrator
provides all data and information required under Clause 35.5 to such
persons as may from time to time be authorised by the Executive
Committee to receive the same provided that such persons shall have
executed a confidentiality undertaking in such form as the Executive
Committee may from time to time determine. If the Settlement System
Administrator is not permitted or required to release any data and
information by reason only of the confidential nature of such data and
information it shall and may provide representative data to the extent
required for such testing.
134
35.7 Inconsistencies and conflicts: in the event of any inconsistency or
conflict between the provisions of this Agreement and the provisions of
the Development Policies, the provisions of this Agreement shall
prevail.
36. CHANGE MANAGEMENT
36.1 Change Management Policies: in order to ensure that developments of and
changes to the Settlement System are brought into effect in an ordered
and controlled manner, each of the Parties undertakes to comply with the
Change Management Policies.
36.2 Amendments: the Change Management Policies may be amended at any time
and from time to time by the Executive Committee after consultation with
the Settlement System Administrator.
37. SOFTWARE
37.1 Acceptance of Software: the Settlement System Administrator shall not
after the Effective Date accept any software unless and until instructed
to do so by the Executive Committee and, to the extent that any lack of
any such instruction causes the Settlement System Administrator to
suffer or incur a loss under any contract relating thereto (not being a
loss occasioned by its own fault), it shall be entitled to recover the
same in accordance with the Accounting procedure, provided always that
the Settlement System Administrator has notified the Executive Committee
in writing of the nature and amount of any such potential loss in good
time prior to the loss arising.
37.2 Warranties: without prejudice to Clauses 39 and 44, nothing in this
Agreement shall imply or impose any requirement on the Settlement System
Administrator to give any warranty with respect to any Software.
38.3 No liability: each Party acknowledges that neither NGC nor NGC
Settlements Limited shall have any liability in respect of any software
developed before the Effective Date.
38. CHANGES TO THE POOL RULES
39.1 The Settlement System Administrator's obligations: the Settlement System
Administrator shall have the obligations and responsibilities set out in
this Clause 39 in respect of the New Software and its related
Specifications and the written procedures used by the Settlement System
Administrator in connection with the operation of the Settlement System
(the "Operation Procedures").
39.2 Future developments (1): in respect of:
135
39.2.1 each Works Programme involving a change to the Specification or
the Software for which the Settlement System Administrator is
appointed Project Manager or which is developed by or on behalf
of the Settlement System Administrator; or
39.2.2 all changes to the Software or the Specification (other than
those referred to in Clause 39.2.1 or 39.3).
the Settlement System Administrator shall ensure that, subject to Clause
39.4, upon the implementation of such change the New Software which is
the result of such change (excluding Settlement GOAL, GOALPOST, LOLP and
Second Tier Software and any Software the development of which has been
project managed by a person other than the Settlement System
Administrator) is consistent in all material respects with, and will in
its operation give effect in all material respects to, and the
Operational Procedures are appropriate to give effect in all material
respects to, the Specification relating to such New Software (other than
those parts relating to Settlement GOAL, GOALPOST, LOLP and Second Tier
Software and any Software the development of which has been project
managed by a person other than the Settlement System Administrator.)
39.3 Future developments (2); in respect of each Works Programme or
development specified in accordance with the Development Policies
involving a change to the Specification or the Software for which the
Settlement System Administrator is not appointed Project Manager and
which is not developed by or on behalf of the Settlement System
Administrator, the Settlement System Administrator shall ensure that,
subject to Clause 39.5, upon the implementation of such change the New
Software which is the result of such change (excluding Settlement GOAL,
GOALPOST, LOLP and Second Tier Software and any Software the development
of which has been project managed by a person other than the Settlement
System Administrator) is consistent in all material respects with, and
will in its operation give effect in all material respects to, and the
Operational Procedures are appropriate to give effect in all material
respects to, the Specification relating to such new Software (other than
those parts relating to Settlement GOAL, GOALPOST, LOLP and Second Tier
Software and any Software the development of which has been project
managed by a person other than the Settlement System Administrator).
39.4 Relief from liability (1): the Settlement System Administrator shall be
relieved from liability under Clause 39.2 if (but only to the extent
that):-
39.4.1 in good time (having regard to the time elapsed from the date
upon which work on the relevant change is initiated by the
Executive Committee to the date such change is implemented and
taking into account, where appropriate, that testing of the New
Software by or on behalf of the Settlement System Administrator
may have taken place
136
only after delivery thereof to the Settlement System
Administrator) before such implementation the Settlement System
Administrator has notified the Executive Committee in writing on
Specified Grounds of inconsistencies between the New Software
and/or its Operational Procedures and the Specification or
operational failures in the Settlement System which will arise
by reason of such implementation, which inconsistencies or
operational failures remain unresolved at the time of such
implementation; and
39.4.2 any other such inconsistency could not reasonably have been
expected to have been discovered by a project manager engaged to
give effect to such change and acting in accordance with Good
Industry Practice (taking into account the actual time given for
such development and the testing of any relevant software).
39.5 Relieve from liability (2): the Settlement System Administrator shall be
relived from liability under Clause 39.3 if (but only to the extent
that):-
39.5.1 in good time (having regard to the time elapsed from the date
upon which work on the relevant change is initiated by the
Executive Committee to the date such change is implemented and
taking into account, where appropriate, that testing of the New
Software by or on behalf of the Settlement System Administrator
may have taken place only after delivery thereof to the
Settlement System Administrator) before such change the
Settlement system Administrator has notified the Executive
Committee in writing on Specified Grounds of inconsistencies
between the New Software and/or its Operational procedures and
its Specification or operational failures in the Settlement
System which will arise by reason of such implementation, which
inconsistencies or operational failures remain unresolved at the
time of such implementation; and
39.5.2 any other such inconsistency could not reasonably have been
expected to have been discovered by the Settlement System
Administrator having regard to its actual knowledge of the
detail of such change and the development works in relation
thereto, its involvement generally in the development of the
related Specification and the New Software and its actual
knowledge of the Settlement System and the effect of such change
thereon.
39.6 Specified Grounds: in this Clause 39 "Specified Grounds" means grounds
reasonably held by the Settlement System Administrator for believing
that at the time of the implementation of any such change as is referred
to in Clause 39.2 or 39.3, there will be an inconsistency between the
New Software (excluding Settlement GOAL,
137
GOALPOST, LOLP and Second Tier Software and any Software the development
of which has been project managed by a person other than the Settlement
System Administrator) and/or its Operational procedures and its
Specification (other than those parts relating to Settlement GOAL,
GOALPOST, and Second Tier Software and any Software the development of
which has been project managed by a person other than the Settlement
System Administrator) or operational failures in the Settlement System
which will arise by reason of such introduction or implementation, which
grounds (and the reasons therefor) are fairly disclosed to the Executive
Committee (taking into account the actual time given for the relevant
development and the testing of any relevant software). In the event of
any dispute between the Executive Committee and the Settlement System
Administrator as to whether a matter has been fairly disclosed the same
shall be referred promptly (and in any event within one month after the
dispute has arisen) to arbitration in accordance with Clause 83. if the
decision of the arbitrator(s) is that the matter has not been fairly
disclosed, the relevant disclosure shall be ignored for the purpose of
establishing a Specified Ground.
39.7 Liability for breach: the Settlement System Administrator's liability
for breach of any of its obligations under the foregoing provisions of
this Clause 39 shall be subject to the limitations set out in Clause 32
save that the Settlement System Administrator shall also be liable to
the extent (if any) agreed in writing with the Executive Committee in
relation to each development relating to New Software (and shall not
charge or recharge that liability to Pool Members).
39.8 Claims limitation: the Settlement System Administrator shall not be
liable in respect of any breach of this Clause 39 unless:-
(i) a breach in respect of the New Software is notified to the
Executive Committee or the Executive Committee becomes aware of
such breach within 12 months after the date upon which such New
Software is accepted by or on behalf of the Executive Committee;
and
(ii) details of any claim to be made in respect of such breach are
given to the Settlement System Administrator within 3 months
after the Executive Committee is notified or otherwise becomes
aware of such breach.
40. OPERATION OF THE COMPUTER SYSTEM
40.1 Data input and validation:
40.1.1 the Settlement System Administrator undertakes to the other
Parties promptly and properly to input such data and other
information as it may receive pursuant to the terms of this
Agreement.
138
40.1.2 The Settlement System Administrator shall review and validate
data and other information in accordance with the Agreed
Procedures to establish the completeness thereof and to identify
any inconsistencies therein.
40.2 Procedures: the Settlement System Administrator shall:-
40.2.1 promptly report internally in accordance with its management
procedures and to the Executive Committee any deviation from
pre- specified norms in the Computer Systems (which
pre-specified norms shall be those for the time being and from
time to time agreed between the Settlement System Administrator
and the Executive Committee and, in default of agreement, as
reasonably specified by the Executive Committee), shall promptly
investigate any such deviation to determine whether the Hardware
and/or the Software is (are) functioning correctly and in
accordance with the Specification and shall promptly report the
findings of any such investigation to the Executive Committee.
Any such deviation shall be corrected in accordance with Clause
40.2.5 or (as the case may be) 35.1;
40.2.2 ensure that prompt attention and response is given by the
Settlement System Administrator to all reasonable enquiries of
Pool Members concerning unexpected results arising from the
operation of the Computer Systems and to all notifications by
Pool Members to it of suspected defects in the Software or the
Hardware or its operation;
40.2.3 in addition to its obligations under Clause 39, ensure that any
defects in the Software or inconsistencies between it and the
Specification of which the Settlement System Administrator is or
is made aware (including in the course of development work) are
reported promptly to the Executive Committee;
40.2.4 conduct such programmes of tests as may be agreed for the time
being and from time to time by it with the Executive Committee
(and, in default of agreement, as reasonably specified by the
Executive Committee) in order to verify the conformity of the
Software with the Specification;
40.2.5 review on a regular basis (and not less frequently than once in
every six months) the Computer Systems for the purposes of
identifying and isolating, and in the course of operating,
testing and maintaining the Computer Systems shall maintain for
a period of not less than eight years (or such longer period as
the Executive Committee may from
139
time to time reasonably require) records of, Localised
Implementation Errors and shall following:-
(a) notification of such Localised Implementation Errors to
the Executive Committee;
(b) a release of a suitable correction, which the Settlement
System Administrator shall prepare; and
(c) a report from the Pool Auditor confirming that, in its
opinion, by implementing such release, a suitable
correction will be made in accordance with the
Specification,
correct them; and
40.2.6 on a regular basis (and not less frequently than once in every
six months, beginning at the Effective Date of Termination or at
such longer regular intervals as the Executive Committee may
from time to time notify the Settlement System Administrator)
review the Computer Systems and report to the Executive
Committee any deviations from the pre-specified norms referred
to in Clause 40.2.1 (not being Localised Implementation Errors).
Any such deviation shall be corrected in accordance with Clause
35.1.
41. NOTIFICATION OF DEFECTS BY POOL MEMBERS
Each Pool Member undertakes to the Settlement System Administrator and
each other Pool Member promptly to notify the Settlement System
Administrator and the Executive Committee in writing of any defects of
which it is or becomes aware in the Software or its operation and to
provide such further information as may reasonably be required by the
Settlement System Administrator to identify, isolate and correct such
defect.
42. TESTING AND ACCESS
42.1 Tests requested by the Executive Committee:
42.1.1 the Settlement System Administrator shall, upon receipt of not
less than ten working days' notice from the Executive Committee
and subject to availability of computer time and other necessary
resources, arrange for such tests of the Hardware and Software
to be performed by the Settlement System Administrator as are
from time to time reasonably required by the Executive
Committee.
140
42.1.2 The Executive Committee shall be entitled to nominate the Pool
Auditor or any other person to whom the Settlement System
Administrator has no reasonable objection to attend at and
monitor any test under Clause 42.1.1 and the Settlement System
Administrator shall give the Pool Auditor or (as the case may
be) such other person reasonable access to the Hardware and the
Software for the purpose of attending at and monitoring any such
test.
42.1.3 The costs of any test under Clause 42.1.1 shall be borne in
accordance with the Accounting Procedure.
42.2 Tests requested by Pool Members:
42.2.1 the Settlement System Administrator shall upon being given
reasonable notice by a Pool Member conduct tests on information
or data sets provided by such Pool member by running the
Software subject to the availability of computer time and other
resources and at such cost and on such terms as the Settlement
System Administrator may reasonably determine.
42.2.2 The costs of any test under Clause 42.2.1 shall be borne by the
Pool member which requested the same.
42.3 Tests requested by the Pool Auditor:
42.3.1 the Settlement System Administrator shall, upon receipt of not
less than ten working days' notice from the Pool Auditor and
subject to availability of computer time, arrange for such tests
of the Hardware and Software to be performed as are from time to
time reasonably required by the Pool Auditor for the performance
of its functions under Part IX. The Settlement System
Administrator shall, if so required by the Pool Auditor, permit
the Pool Auditor to carry out such tests provided that the
person or persons allocated to carry out such tests by the Pool
Auditor is or are suitably qualified in the operation of
computers and computer systems to carry out such tests and, in
any other case, the Settlement System Administrator shall carry
out such tests.
42.3.2 The Settlement System Administrator shall give the Pool Auditor
reasonable access to the Hardware and the Software for the
purpose of monitoring any test under Clause 42.3.1.
42.4 Access to Listings: the Settlement System Administrator shall afford
each Pool Member reasonable access in a secure environment to enable it
visually to examine
141
either in hard copy form or by electronic display all of the then
current operation versions of source code listings relevant to the
running of Settlement and of Settlement GOAL and GOALPOST software
provided that no Pool Member shall be entitled to make any notes
relating to such examination which may be taken outside of such secure
environment. The Settlement System Administrator shall report all such
examinations to the Executive Committee.
42.5 Load Modules: subject to any licence restrictions imposed on the
Settlement System Administrator by any relevant software supplies (and
the Settlement System Administrator shall use all reasonable endeavours
to ensure that there are no such restrictions), the Settlement System
Administrator shall against payment of a reasonable charge therefor:-
42.5.1 make available to any Pool Member upon request run time copies
(modified, where appropriate, to meet the requirements of the
Pool Auditor) of the then current operational load modules and
associated operating documentation of any Software in the forms
run by or on behalf of the Settlement System Administrator or in
such other form as may be reasonably requested by the Pool
member; and
42.5.2 provide reasonable assistance to any Pool Member upon request in
the understanding and use of such load modules and associated
operating documentation. If the Settlement System Administrator
does not have adequate resources to provide such assistance, it
will promptly notify the Executive Committee of such fact
specifying what duties and responsibilities under this Agreement
it could not perform if it were to provide the assistance
requested. The Executive Committee will then notify the
Settlement System Administrator whether it wishes it to provide
such assistance or to perform such duties and responsibilities
instead and the Settlement System Administrator shall comply
with the notification received.
In operating such load modules, a Pool Member shall not make copies of
such load modules available to any other person and shall use its best
endeavours to keep any information about the operation of such load
modules restricted on a "need-too-know" basis amongst its staff.
43. CHANGES TO THE HARDWARE
43.1 Changes to the Hardware: changes in Hardware (not being changes
occasioned by the use of the Settlement System Administrator's back-up
facilities or changes which do not affect the functioning of the
Settlement System) shall be made by the Settlement System Administrator
only with the prior approval of the Executive
142
Committee (which may take the form of a general approval of specified
categories of changes).
43.2 Implementation: the Settlement System Administrator shall be responsible
for giving effect to any changes approved as provided in Clause 43.1.
For this purpose the Settlement System Administrator shall consult the
Executive Committee as to the manner in which any such change shall be
implemented and shall provide the Executive Committee with such
documents, information and other data as it may reasonably request in
connection with such implementation.
43.3 Costs: the costs of and associated with implementing any such change
approved as provided in Clause 43.1 shall be borne in accordance with
the Accounting Procedure.
44. PROPRIETARY RIGHTS
44.1 Definitions: in this Clause 44:-
"Developed Software" means those computer programs and codes described
in Part B of Schedule 8 and all copyright and other intellectual
property rights therein and all documents and materials forming part
thereof or relating thereto;
"Future Developed Software" means those computer programs and codes
comprising software and all copyright and other intellectual property
rights therein which after the date of this Agreement are specifically
developed at the request of the Settlement System Administrator for the
purposes of the running of the Settlement System;
"Future Licensed Software" means those computer programs and codes which
after the date of this Agreement are to be licensed to the Settlement
System Administrator for the purposes of the running of the Settlement
System; and
"Licensed Software" means those computer programs and codes described in
Part C of Schedule 8, Settlement GOAL and GOALPOST.
44.2 As at the Effective Date: the Settlement System Administrator
represents, warrants and undertakes to the other Parties as a continuing
obligation that:-
44.2.1 the Settlement System Administrator has, and for so long as it
remains the Settlement System Administrator will have,
unencumbered and freely transferable title to Developed
Software;
44.2.2 the Licensed Software is, and for so long as the Settlement
System Administrator remains as such will remain, the subject
143
of a non-exclusive licence in favour of the Settlement System
Administrator transferable to its successor Settlement System
Administrator; and
44.2.3 where any such Licensed Software is transferable with the
consent of the licensor, the Settlement System Administrator
shall use all reasonable endeavors to obtain consent to assign
such Licensed Software to its successor Settlement System
Administrator, as son as is reasonably practicable.
44.3 Following the Effective Date: the Settlement System Administrator
represents, warrants and undertakes to the other Parties as a continuing
obligation that:-
44.3.1 save and to the extent notified to the Executive Committee prior
to the Settlement System Administrator entering into any
agreement for the production of Future Developed Software, the
Settlement System Administrator, for so long as it remains as
such, will have unencumbered and freely transferable title to
all Future Developed Software;
44.3.2 Future Licensed Software will be, and for so long as the
Settlement System Administrator remains as such will remain, the
subject of a non-exclusive licence in favour of the Settlement
System Administrator transferable to its successor Settlement
System Administrator;
44.3.3 where any Future Licensed Software is transferable with the
consent of the licensor, the Settlement System Administrator
shall use all reasonable endeavours to obtain consent to assign
such Future Licensed Software to its successor Settlement System
Administrator and will notify the Executive Committee if it
cannot obtain such consent prior to entering into any agreement
for such Future Licensed Software; and
44.3.4 the Settlement System Administrator shall use all reasonable
endeavours to obtain unencumbered and freely transferable title
to any Future Developed Software and, having notified the
Executive Committee pursuant to Clause 44.3.1, shall not enter
into any such agreement without the consent of the Executive
Committee, such consent not to be unreasonably withheld or
delayed.
44.4 Listing and Updating: the Settlement System Administrator undertakes to
establish and maintain a list of all Software and a list of all
Specifications of Developed
144
Software and Future Developed Software and to make copies of such lists
available to Pool Members on reasonable request.
44.5 Restrictions on use: subject to Clauses 42.4, 42.5 and 45 and the
requirements of the Pool Auditor, the Settlement System Administrator
may not, without the prior written consent of the Executive Committee
(such consent not to be unreasonably withheld or delayed) grant to any
person (other than a successor Settlement System Administrator) any
right or title to, or give that person a copy of or permit that person
to use, Developed Software or Future Developed Software or otherwise
derive any benefit or profit therefrom (other than by itself using such
Software for the purposes of the Settlement System or in the actual
production or development of the same).
45. ESCROW ARRANGEMENTS
45.1 Escrow Agreement: no later than eight months after the Effective Date
(or such longer period as the Executive Committee may from time to time
approve) the Settlement System Administrator (for itself and on behalf
of the Pool Members acting though the executive Committee) shall enter
into and deliver an escrow agreement (the "Escrow Agreement") in or
substantially in the form set out in Schedule 7 or in such other
reasonable form as the Executive Committee after consultation with the
Settlement System Administrator may direct with a reputable software
escrow agent (the "Custodian") shall use all reasonable endeavours to
procure the Custodian to enter into and deliver the Escrow Agreement.
Forthwith upon entering into the Escrow Agreement the Settlement System
Administrator shall deposit with the Custodian to the extent then in
existence (and, if not in existence, as soon after it becomes such):-
45.1.1 a copy of the source code and load (machine executable) modules
relating to all Developed Software and Future Developed Software
together with all job control language and licensed software
system tables, each in a machine readable form and the source
code and job control language in a hard copy form; and
45.1.2 a copy of all related manuals and other associated
documentation, including:-
(a) any user requirement documents, together with all
associated authorised change requests;
(b) any functional specification documents associated with
those documents described in paragraph (a) above,
together with all authorised change requests associated
with the relevant functional specification;
145
(c) to the extent available to the Settlement System
Administrator, any design specification documents
associated with those documents described in paragraphs
(a) and (b) above, together with the relevant design
specification;
(d) any program and/or user guides prepared to assist in the
day-t-day operation and future development of the
computer programs (including records of test cases
together with the associated test input and output data
used for validation purposes);
(e) any relevant test strategy schedules and acceptance
schedules as specified for functional and operational
end to end testing;
(f) any relevant test acceptance certificates and reports
for all tests recording comments and observations made
on the appropriate tests where such tests are
commissioned by the Settlement System Administrator;
(g) any relevant client acceptance certificates and reports
for all tests recording comments and observations made
on the appropriate tests where such tests are
commissioned by the Settlement System Administrator;
(h) any relevant compilation or detailed operating
procedures required in connection with any of the
relevant paragraphs in this Clause 45.1.2;
(i) all Software licenses for Licensed Software and Future
Licensed Software; and
(j) a list detailing all versions of Licensed Software and
Future Licensed Software (including operating systems
and compilers) used in creating each version of the
object code detailing the version numbers used and any
program temporary fixes or equivalent mode,
(together the "Material").
If, after consultation with the Settlement System Administrator, the
Executive committee shall so request:-
(A) the Settlement System Administrator shall use its reasonable
endeavours (which may include the payment of a fee or further
fee recoverable
146
through the Accounting Procedure) to procure that any licence
for any Licensed Software or Future Licensed software is on
terms or amended terms that permit the deposit of such Licensed
Software or Future Licensed Software with a reputable software
escrow agent approved by the Executive Committee on the terms of
an escrow agreement approved by the Executive Committee and NGC
(in the case of NGC such approval not to be unreasonably
withheld).
45.2 Updating: the Settlement System Administrator shall ensure that the
Material deposited with the Custodian is kept fully up-to-date and
reflects all Modifications (as defined in the Escrow Agreement) and
shall deposit a copy of all Modifications with the Custodian as soon as
the same are available, all in accordance with the terms and subject to
the conditions of the Escrow Agreement.
45.3 Notification to Executive Committee: the Settlement System Administrator
shall notify the Executive Committee promptly of the delivery of each
Modification to the Custodian.
45.4 Amendments: any amendment to or variation of the Escrow Agreement shall
be made in accordance with its terms provided that the Settlement System
Administrator shall not make or agree to any such amendment or variation
without the prior written consent of the Executive Committee.
46. MAINTENANCE ARRANGEMENTS
The Settlement System Administrator shall ensure that at all times it
has in full force and effect proper arrangements for the maintenance of
(and the prompt rectification of defects in) the Hardware and Software
and, upon reasonable request of the Executive Committee, shall supply
evidence reasonably satisfactory to the Executive Committee of the
existence and nature of such arrangements. The costs of all such
maintenance arrangements (not being costs relating to the rectification
of defects under the terms of any warranty cover in relation to the
Computer Systems) shall be borne in accordance with the Accounting
Procedure.
147
PART IX
THE POOL AUDITOR AND SCHEDULING AND DESPATCH REVIEWS
47. THE POOL AUDITOR AND SCHEDULING AND DESPATCH REVIEWS
47.1 Appointment and removal: the Executive Committee shall (after
consultation with the Settlement System Administrator) from time to time
appoint a firm of accountants of internationally recognised standing to
carry out:-
47.1.1 audits of the calculations and allocations performed by the
Settlement System, such audits to be carried out annually;
47.1.2 audits of the Funds Transfer System, such audits to be carried
out annually;
47.1.3 tests and/or checks on new items or versions of Software;
47.1.4 reviews of Agreed Procedures and Codes of Practice, as required
from time to time by the Executive Committee; and
47.1.5 audits, reviews, tests and/or checks of such other matters as
are otherwise designated under this Agreement for reference to
it and, where not so designated, such other audits, reviews,
tests and/or checks as the Executive Committee may from time to
time reasonably require (having regard, in particular, to the
disruptive effect of the same on the business and operations of
the Parties),
and to assist, upon request of the Executive Committee, in the
preparation of Works Programmes pursuant to Clause 5.9.
The Executive Committee shall have the right at any time and from time
to time (after consultation with the Settlement System Administrator) to
remove from office as Pool Auditor any firm of accountants so appointed
by it, but the Executive Committee shall ensure that there shall at all
times be a Pool Auditor.
47.2 Scheduling and Despatch Review:
47.2.1 the Grid Operator shall (after consultation with the Executive
Committee) decide upon the appointment from time to time of such
firm of accounts of internationally recognised standing as the
Executive Committee shall approve (such approval not to be
unreasonably withheld or delayed) to carry out reviews
("Scheduling and Despatch Reviews" of the Scheduling and
Despatch processes under the Grid
148
Code, such reviews to be carried out, until the first
anniversary of the effective date, at such time or times as
shall be agreed between the Grid Operator and the Executive
Committee and, thereafter, annually. The objective and scope of
each such review is set out in Schedule 19.
47.2.2 The Grid Operator shall have the right at any time and from time
to time (after consultation with the Executive Committee) to
decide upon the removal from office of the firm of accountants
so appointed by it with the consent of the Executive Committee
(such consent not to be unreasonably withheld or delayed).
47.2.3 The auditor carrying out the Scheduling and Despatch Review
shall report to the Grid Operator.
47.3 Scope of work:
47.3.1 the terms of engagement and scope of the work to be carried out
by the Pool Auditor shall be in accordance with the terms of
this Agreement and as determined from time to time by the
Executive Committee (after consultation with the Pool Auditor
and, where appropriate, the Settlement System Administrator or
the Pool Funds Administrator) and the Pool Auditor shall report
to the Executive Committee. the Executive Committee shall, upon
request, provide each Pool Member, the Director, any Party which
has applied pursuant to Clause 8.2 to become a Pool Member and
(as appropriate) the Settlement System Administrator of the Pool
Funds Administrator with a copy of such terms of engagement.
47.3.2 Any opinion or report of the auditor carrying out the Scheduling
and Despatch Review shall be addressed to the Grid Operator (for
its own benefit) and a copy thereof shall be sent to the
Executive Committee and to each Pool Member, the Director, the
Settlement System Administrator and the Pool Funds Administrator
(each of whom shall be entitled to rely on it).
47.3 Notification of disputes: upon written request of the Pool Auditor or,
where the dispute relates to Scheduling and Despatch, the auditor
carrying out the Scheduling and Despatch Review, a Party shall promptly
provide the Pool Auditor or (as the case may be) the auditor carrying
out the Scheduling and Despatch Review with a written statement of all
disputes under or in connection with this Agreement or any Ancillary
Services agreement which are then outstanding and which involve such
Party or which the relevant Party believes may arise and are likely to
involve such Party, and (subject to any supervening obligations of
confidentiality binding on such Party) such statement shall include
reasonable details of each such dispute.
149
48. AUDIT INSTRUCTIONS
48.1 Frequency:
48.1.1 audits, tests, reviews and checks pursuant to Clause 47.1 shall
be carried out at such time or times as the Executive Committee
shall determine (after consultation with the Pool Auditor and,
where appropriate, the Settlement System Administrator or the
Pool Funds Administrator) and any such audit, test, review or
check shall relate to such period(s) as the Executive Committee
and the Pool Auditor shall agree.
48.1.2 The review pursuant to Clause 47.2 shall be carried out at such
time or times as the Grid Operator shall determine and the
Executive Committee shall approve (such approval not to be
unreasonably withheld or delayed).
48.1.3 In good time before each annual general meeting of Pool
Members:-
(a) the Executive Committee shall instruct the Pool Auditor
to prepare the report referred to in clause 9.1.2; and
(b) the Grid Operator shall instruct the auditor carrying
out the Scheduling and Despatch Review to prepare the
report referred to in Clause 47.2.3.
48.2 Opinions and reports: any opinion or report of the Pool Auditor required
by the Executive Committee for the benefit of all Pool Members and to
such other person(s) as the Executive Committee may direct and a copy
thereof shall be sent by the Executive Committee to each Pool Member and
the Director and, if requested and the Executive Committee approves, the
Settlement System Administrator and the Pool Funds Administrator (and
the Settlement System Administrator and the Pool Funds Administrator
shall be entitled to rely upon the same in any legal proceedings
(including arbitration)).
48.3 Concerns and recommendations:
48.3.1 in instructing the Pool Auditor in respect of any of the matters
referred to in Clause 47.1 the Executive Committee shall require
the Pool Auditor:-
(a) forthwith to report any material concerns with respect
to matters the subject of the relevant audit, test,
review and/or check; and
150
(b) to make such recommendations as to changes in the
procedures, controls and/or audit coverage as the Pool
Auditor considers appropriate.
Upon receipt of any such report or recommendation the Executive
Committee shall, after consultation with the Settlement System
Administrator or (in the case of the review referred to in
Clause 47.1.2) the Pool Funds Administrator, prepare and sand or
cause to be prepared and sent a report to Pool Members, the Pool
Auditor and the Director and the Settlement System Administrator
or (as the case may be) the Pool Funds Administrator enclosing a
copy of the Pool Auditor's report of recommendation. The
Executive Committee shall instruct the Settlement System
Administrator to carry out such corrective action as the Pool
Members in general meeting may approve or (where such approval
is not required by the terms of this Agreement) as the Executive
Committee may resolve consequent upon receipt of the Executive
Committee's report (which the Settlement System Administrator
and the Pool Funds Administrator undertake promptly to do).
48.3.2 In instructing the auditor in respect of the scheduling and
Despatch review the Grid Operator shall require the auditor to
make the reports and recommendations referred to in Clauses
48.3.1(a) and (b). Upon receipt of a copy of any such report or
recommendation the Executive committee shall, after consultation
with the Settlement System Administrator and the Grid Operator,
prepare or send or cause to be prepared and sent a report to
Pool Members, the auditor carrying out the Scheduling and
Despatch review and the Settlement System Administrator
enclosing a copy of the report or recommendation. The Executive
Committee may instruction the Grid Operator to carry out such
corrective action as may be reasonable and practicable in all
the circumstances and which is consistent with the grid Code
which Pool Members in general meeting shall approve.
48.4 Access:
48.4.1 the Settlement System Administrator shall permit the Pool
Auditor unrestricted access to the Settlement System, the
Hardware and Software and all data used, information held and
records kept by the Settlement System Administrator or its
agents in operating the Settlement System and shall make
available members of its staff to explain the operation of the
Settlement System and such other issues as the Pool Auditor
considers relevant.
151
48.4.2 To the extent that the Pool Auditor reasonably requires in order
to be satisfied that the Pool Funds Administrator is complying
with its obligations under this Agreement and the Agreed
Procedures, the Pool Funds Administrator shall permit the Pool
Auditor unrestricted access to its operation of the Funds
Transfer System, the Funds Transfer Hardware and the Funds
Transfer Software and all data used, information held and
records kept by the Pool Funds Administrator or its agents in
the conduct of that operation and shall make available members
of its staff to explain such operation and such other issues as
the Pool Auditor considers relevant.
48.4.3 The Grid Operator shall permit the auditor carrying out the
Scheduling and Despatch Review unrestricted access to that part
of its business as relates to Scheduling and Despatch and the
operation of BPS GOAL and all data used, information held and
records kept by the Grid Operator in the conduct of such
business and shall make available members of its staff to
explain such operations and such other issues as the auditor
considers relevant.
48.5 Costs:
48.5.1 the costs of any audit, test, review or check pursuant to Clause
47.1.1, 47.1.3, 47.1.4 or 47.1.5 and any corrective action on
the part of the Settlement System Administrator pursuant to
Clause 48.3.1 shall be as agreed between the Pool Auditor and
the Executive committee (after consultation with the Settlement
System Administrator) and shall be borne in accordance with the
Accounting procedure.
48.5.2 The costs of any review pursuant to Clause 47.1.2 and any
corrective action on the part of the Pool Funds Administrator
pursuant to Clause 48.3.1 shall be as agreed between the Pool
Auditor and the Executive Committee (after consultation with the
Pool Funds Administrator) and shall be borne by the Pool Funds
Administrator and recovered by it in accordance with the
accounting procedure set out in Schedule 15.
48.5.3 The costs of any review pursuant to Clause 47.2 and any
corrective action on the part of the Grid Operator pursuant to
Clause 48.3.2 shall be borne by the Grid Operator.
48.6 Conflict: the Executive Committee shall require the Pool Auditor and the
auditor carrying out the Scheduling and Despatch Review to disclose to
the Executive Committee the existence and nature of all audit
assignments with any Party.
152
48.7 Own auditors' review: each Pool Member may request of the Executive
Committee that its own external auditors be permitted to liaise with the
Pool Auditor and the auditor carrying out the Scheduling and Despatch
Review in accordance with normal professional standards, including
provision of access to working papers. The Executive Committee shall
take such steps as may reasonably be required of it to ensure that each
of the Pool Auditor and the auditor carrying out the Scheduling and
Despatch Review co-operates accordingly (subject to Clause 48.9).
48.8 Pool Auditor's rights: the Pool Auditor shall be entitled to attend and
speak at meetings of the Executive Committee and at general meetings and
separate general meetings of Pool Members. The Pool Auditor shall be
entitled to resign upon giving prior notice to the Executive Committee
(the period of such notice (if any) to be as set out in the terms of its
appointment). Should the Pool Auditor resign, be removed from office or
not be reappointed the Pool Auditor shall have the right to communicate
directly with Pool Members if it believes there are matters which should
be brought to their attention.
48.9 Confidentiality:
48.9.1 the Pool Auditor shall as a condition precedent to its
appointment execute a confidentiality undertaking in favour of
each of the Settlement System Administrator, the Pool Funds
Administrator, the Grid Operator and the Ancillary Services
Provider and the Executive Committee on behalf of all Pool
members in such form as may be reasonably required from time to
time by the Executive Committee.
48.9.2 The auditor carrying out the Scheduling and Despatch Review
shall as a condition precedent to its appointment execute a
confidentiality undertaking in such form as may be reasonably
required from time to time by the Grid Operator and which shall
be approved by the Executive Committee (such approval not to be
unreasonably withheld or delayed).
48.9.3 If requested by the Settlement System Administrator, the Pool
funds Administrator, the Grid Operator or the Ancillary Services
provider, the auditor carrying out the Scheduling and Despatch
Review shall execute a confidentiality undertaking in favour of
the relevant one of them in such form as the Executive Committee
may from time to time approve (such approval not to be
unreasonably withheld or delayed).
48.10 Scheduling and Despatch Auditor: the auditor appointed to carry out the
Scheduling and Despatch Review shall be entitled to attend and speak at
meetings of the Executive Committee and at general meetings and separate
general meetings of Pool Members where matters relating to Scheduling
and
153
Despatch are to be discussed or considered. The auditor shall be
entitled to resign upon giving prior notice to the Grid Operator (who
shall send a copy forthwith to the Executive Committee) (the period of
such notice, if any, to be as set out in the terms of its appointment).
Should the auditor resign, be removed from office or not be reappointed
it shall have the right to communicate directly with Pool members if it
believes that there are matters which should be brought to their
attention.
154
PART X
THE GRID OPERATOR'S RESPONSIBILITIES
49. RESPONSIBILITIES
The Grid Operator shall have the following duties, responsibilities and
obligations under this Agreement:-
49.1 PORTHOLE: ensuring that, insofar as relevant to the operation of
the Settlement System and the Pool Rules, PORTHOLE will in its
operation comply with its user and functional specifications;
49.2 Services: making available to any successor Settlement System
Administrator those services necessary for the proper
functioning of the Settlement System which the Grid Operator
made available to the incumbent Settlement System Administrator
at any time in the twelve month period prior to the resignation
or removal of such incumbent Settlement System Administrator, in
any such case upon such terms as may be agreed between the Grid
Operator, such successor Settlement system Administrator and the
Executive Committee; and
49.3 Generally: such other duties, responsibilities and obligations
as are set out in this Agreement.
50. STANDARD OF CARE
50.1 Standard of Care: the standard of care applicable to the Grid Operator
in the exercise of its duties and responsibilities pursuant to this
Agreement shall be as set out in Clause 32.1 in respect of the
Settlement System Administrator mutatis mutandis except that the final
sentence in Clause 32.1 shall not apply.
50.2 Miscellaneous: the provisions of Clauses 31.3.3, 31.3.4, 31.4, 31.5 and
31.6 to 31.10 (inclusive) shall apply in respect of the Grid Operator
mutatis mutandis.
155
PART XI
ANCILLARY SERVICES AND THE
ANCILLARY SERVICES PROVIDER
51. ANCILLARY SERVICES
51.1 Obligations: the obligations of the Ancillary Services Provider and the
Grid Operator pursuant to this Clause 51 shall be owed to each and every
Supplier.
51.2 Obligations of Ancillary Services Provider: the Ancillary Services
Provider shall:-
51.2.1 implement, maintain and operate all such systems as are
necessary to enable it properly to carry on the Ancillary
Services Business in accordance with the Transmission Licence;
51.2.2 operate the Ancillary Services Business in an efficient and
economic manner;
51.2.3 maintain such records, data and other information as the Pool
Auditor may from time to time by notice in reasonable detail to
the Ancillary Services Provider reasonably require for the
purposes of this Part XI or as may otherwise be reasonably
necessary to enable the Ancillary Services Provider to comply
promptly and fully with its obligations under this Agreement;
51.2.4 retain in electronic or machine readable form for a period of
not less than eight years (or such longer period as the Pool
Auditor may from time to time reasonably require), copies of all
records, data and information referred to in Clause 51.2.3 in
respect of the Ancillary Services;
51.2.5 provide to the Settlement System Administrator who shall
promptly provide the same to each Supplier monthly and annual
statements giving aggregate payment details separately in
respect of each of the following items:-
(a) Reactive Energy;
(b) frequency control;
(c) Black Start Capability (as defined in the Grid Code);
(d) lost opportunity costs;
156
(e) supplies of Ancillary Services to Externally
Interconnected Parties;
(f) adjustments for disputes which have been settled or
otherwise determined; and
(g) the Ancillary Services Provider's business charges,
together with a statement of the sum of all such items, and each
of the Parties agrees to such information being so provided;
51.2.6 not transfer or seek to transfer any of its duties or
responsibilities as Ancillary Services Provider save to NGC's
successor as Grid Operator where NGC is removed as Grid Operator
(but not further or otherwise);
51.2.7 upon a successor Grid Operator being appointed (so far as it is
able), transfer to such successor all data, records, other
information, assets, equipment, facilities, rights and know-how
which it has (excluding freehold and leasehold real property)
and which are necessary to carry out the duties and
responsibilities of the Ancillary Services Provider and which
are not otherwise readily obtainable by such successor including
all original and copy material relating to the same and, in
consideration for such transfer, the Suppliers shall jointly and
severally pay to the Ancillary Services Provider a reasonable
sum to reflect the costs of, and the costs of transferring, such
material, such sum to be determined pursuant to Clause 83 in
default of agreement between the Suppliers and Ancillary
Services Provider; and
51.2.8 ensure that all agreements or arrangements for the provision of
Ancillary Services to Externally Interconnected Parties are on
the best commercial terms reasonably available.
51.3 Obligations of Suppliers: each Supplier shall pay the Ancillary Services
Provider the amount allocated to such Supplier for Ancillary Services in
any Settlement Period for Ancillary Services in accordance with this
Agreement.
51.4 Obligation of Grid Operator: the Grid Operator shall enforce the Master
Connection and Use of System Agreement and each Supplemental Agreement
(insofar as it concerns the provision of Ancillary Services) in
accordance with their respective terms in all circumstances in which it
is reasonable to do so having regard to its obligations under the Act,
the Transmission Licence and the Grid Code.
157
51.5 Audit of Ancillary Services:
51.5.1 the Suppliers may require the Pool Auditor to carry out audits,
tests, checks or reviews in relation to the operation by the
Ancillary Services Provider of the Ancillary Services Business
as Suppliers may from time to time reasonably require (having
regard, in particular, to the disruptive effect of the same on
the business and operations of the Ancillary Services Provider).
The terms of engagement for any such audit, test, check or
review shall be made available to the Ancillary Services
Provider.
51.5.2 The Suppliers shall not require more than two audits, tests,
checks and reviews pursuant to Clause 51.5.1 in any Accounting
Period.
51.5.3 On instructing the Pool Auditor pursuant to Clause 51.5.1, the
Supplier(s) concerned may require the Pool Auditor:-
(a) forthwith to report any material concerns with respect
to matters the subject of the relevant audit, test,
check or review; and
(b) to make such recommendation as to changes in the
procedures, controls and/or audit coverage of the
Ancillary Services Business as the Pool Auditor
considers appropriate.
51.5.4 The Ancillary Services Provider shall permit the Pool Auditor
such access to its Ancillary Services' operations and all
records, documents, data and other information (other than
Excluded Information) held by the Ancillary Services Provider in
the conduct of such operations in each case as the Pool Auditor
may reasonably require and shall make available members of its
staff to explain such operations and such other issues as the
Pool Auditor considers relevant. The Pool Auditor shall not
disclose and shall not be obliged to disclose to any Supplier
details of prices paid to each Generator by the Ancillary
Services Provider.
51.5.2 The Suppliers shall not require more than two audits, tests,
checks and reviews pursuant to Clause 51.5.1 in any Accounting
period.
51.5.3 On instructing the Pool Auditor pursuant to Clause 51.5.1, the
Supplier(s) concerned may require the Pool Auditor:-
(a) forthwith to report any material concerns with respect
to matters the subject of the relevant audit, test,
check or review; and
158
(b) to make such recommendation as to changes in the
procedures, controls and/or audit coverage of the
Ancillary Services Business as the Pool Auditor
considers appropriate.
51.5.4 The Ancillary Services Provider shall permit the Pool Auditor
such access to its Ancillary Services' operations and all
records, documents, data and other information (other than
Excluded Information) held by the Ancillary Services Provider in
the conduct of such operations in each case as the Pool Auditor
may reasonably require and shall make available members of its
staff to explain such operations and such other issues as the
Pool Auditor considers relevant. The Pool Auditor shall not
disclose and shall not be obliged to disclose to any Supplier
details of prices paid to each Generator by the Ancillary
Services Provider.
In this Clause 51.5 "Excluded Information" means all records,
documents, data and other information provided in the course of
the discussions or negotiations with any person with whom the
Ancillary Services Provider contracts or considers contracting
for the provision of Ancillary Services other than as stated in
any Ancillary Services Agreement whether such discussions or
negotiations take place before contracting or as part of any
price review during the term of any Ancillary Services
Agreement.
51.5.5 The Pool Auditor shall report to the Suppliers and a copy of any
report by the Pool Auditor relating to an audit, test, check or
review pursuant to Clause 51.5.1 shall be provided to the
Ancillary Services Provider. The Pool Auditor shall owe a duty
of confidentiality to the Ancillary Services Provider save to
the extent necessary to carryout the particular audit, test,
check or review provided that any matter or thing set out in any
report to the Suppliers shall not be subject to any such
obligation and provided always that nothing in this Clause
51.5.5 shall prevent the disclosure of any information pursuant
to Clause 69. The Ancillary Services Provider shall be entitled
to rely on any such report in any legal proceedings (including
arbitration).
51.5.6 if the Suppliers so resolve, the Ancillary Services provider
shall promptly implement any recommendations made by the Pool
Auditor in a report relating to an audit, test, check or review
pursuant to Clause 51.5.1 and, in the event of any dispute, such
dispute shall be referred to arbitration in accordance with
Clause 83.
51.5.7 The cost of any audit, test, check or review pursuant to Clause
51.5.1 shall be borne by the requisitioning Supplier(s). The
costs of implementing any recommendations pursuant to Clause
51.5.6 may be
159
recovered by the Ancillary Services Provider in accordance with
the ASP Accounting Procedure.
51.6 Basis of Payment: the Ancillary Services Provider shall calculate the
total amount payable under Ancillary Services Agreements in respect of
each Settlement Day together with any amendments to calculations made
for previous Settlement Days based upon information derived from the
Grid Operator and the Settlement System Administrator. The charges to
Suppliers for Ancillary Services shall comprise the costs so calculated
together with the charges of the Ancillary Services provider calculated
in accordance with Schedule 18. The Ancillary Services Provider shall
notify a provisional sum to the Settlement System Administrator within
three working days after receipt of such information from the Grid
Operator and the Settlement System Administrator so as to be despatched
by the Settlement System Administrator to Suppliers in accordance with
the relevant Agreed Procedure to enable the Settlement System
Administrator to apportion this sum to the sale of Active Energy
according to the Pool Rules. The Ancillary Services Provider shall
notify a final sum to the Settlement System Administrator by such time
as will enable the Settlement System Administrator to take into account
the final Settlement Run for each Settlement Day. Any unresolved amount
shall be included in the final Settlement Run on an interim basis
pending resolution. Thereafter it may be included (together with any
errors or omissions subsequently arising) in any appropriate Settlement
run.
51.7 Lost opportunity costs:
51.7.1 subject to Clause 51.6, where the Ancillary Services Provider
pays any Generator an amount in respect of lost opportunity
costs the Ancillary Services Provider shall use reasonable
endeavours to include any such amounts in its Ancillary Service
charge to Suppliers in the Settlement Day on which it arises or
as soon as possible thereafter.
51.7.2 As soon as the Ancillary Services Provider is notified by any
Generator that any obligation to pay lost opportunity costs may
arise it shall consult the Suppliers and, without prejudice to
the Ancillary Services Provider's right to recover such lost
opportunity costs from Suppliers, if requested by the Suppliers
shall recover such lost opportunity costs over such a period as
may be agreed between the Ancillary Services Provider and the
Suppliers and, in default of agreement, over such period as the
Ancillary Services Provider considers to be reasonable.
51.8 Standard of Care: the standard of care applicable to the Ancillary
Services Provider in the exercise of its duties and responsibilities
pursuant to this Agreement shall be as set out in Clause 32.1 in respect
of the Settlement System Administrator mutatis mutandis except that the
final sentence in Clause 32.1 shall not apply.
160
51.9 Independent Contractor: the Ancillary Services Provider shall act as an
independent contractor in carrying out its duties pursuant to this
Agreement and Clause 31.1 in respect of the Settlement System
Administrator shall apply mutatis mutandis.
51.10 Miscellaneous: the provisions of Clauses 31.3.3, 31.3.4, 31.4, 31.5 and
31.6 to 31.10 (inclusive) shall apply in respect of the Ancillary
Services Provider mutatis mutandis.
51.11 Suppliers' Resolutions: where any matter is reserved under this Part XI
or Schedule 18 for the Suppliers to resolve, that matter shall be
decided upon by the majority vote of the Suppliers' representatives on
the Executive Committee.
51A. UPLIFT MANAGEMENT INCENTIVE SCHEME
51A.1 Notwithstanding any other provision of this Agreement, the provisions of
this Clause shall govern the right and obligations of the Parties in
relation to UMIS.
51A.2 Nothing in this Clause shall prejudice or affect in any way the rights
of the parties and the Executive Committee to establish arrangements for
the management of the difference between Pool Selling Price and Pool
Purchase Price subject to Clauses 51A.5 and 51A.3. The parties and the
Executive Committee acknowledge that in the period until 24.00 hours on
the 31st March, 1995 the relevant arrangements shall be UMIS.
51A.3 Neither this Clause 51A (other than Clauses 51A.5 or 51A.7) or UMIS nor
any amendment, variation or replacement of either of them may become
effective except with the prior written agreement of the suppliers and
the Grid Operator (acting through its agent the Ancillary Services
Provider).
51A.4 The Parties agree:
(a) to be bound by the terms, conditions and other provisions of
UMIS;
(b) that the Grid Operator and each Consumer (as defined in the Pool
Rules) shall make such payments as are required and determined
by the provisions of UMIS; and
(c) that from the date UMIS takes effect the following changes to
this Agreement shall take effect.
(i) in Clause 51.6 the words "in respect of Ancillary
Services and UMIS" shall be inserted after the words
"provisional sum";
161
(ii) in paragraphs 1, 5.4, 5.14 and 17.6 of Schedule 11
references to the Ancillary Services Provider shall be
deemed to be references to itself and as agent for the
Grid Operator;
(iii) in line 7 of paragraph 2.1 of Schedule 11 the words "and
UMIS" shall be inserted after the words "Ancillary
Services";
(iv) in paragraph 5.14 of Schedule 11 the words "or in
respect of UMIS" shall be inserted after the words
"Ancillary Services" in line 5 and the words "or in
respect of UMIS for the relevant Payment Date" shall be
inserted after the words "that same day" in line 9; and
(v) in Part 4 of Schedule 11 references to information in
respect of Ancillary Services shall be deemed to include
information in respect of UMIS for the relevant Payment
Date.
51A.5 The Suppliers and the Grid Operator may request the Parties and the
Executive Committee promptly (and in any event before the date UMIS is
to take effect) to execute and do all such acts, matters and things
(including effecting amendments to the Pool Rules) as may be necessary
to give effect to UMIS. The Parties and the Executive Committee shall
not refuse any such request on the grounds of any objections to any
values specified in Annex 1 or the provisions of Annex 2 of Appendix 8
to the Pool Rules as agreed from time to time between the suppliers and
the Grid Operator.
51A.6 In this Part XI, in Schedule 9 and in Schedule 11:
(i) "UMIS" means the amendment and/or additions to the Pool Rules to
implement an uplift management incentive scheme to provide an
incentive for the Grid Operator to minimise certain elements of
the difference between the Pool Selling Price and Pool Purchase
Price (other than payments in respect of the Daily Pool Payment
and/or the Genset Availability Payment) and to provide for
payments and repayments associated therewith between the Grid
Operator (acting through its agent the Ancillary Services
Provider) and Consumers (as defined in the Pool Rules) i the
form agreed pursuant to Clause 51A.3 as the same may be amended
from time to time in accordance with the terms of that Clause.
(ii) whenever the agreement of the Suppliers is required it shall be
given by a resolution of the Suppliers in a separate class
meeting.
162
51A.7 The provisions of this Clause, UMIS and any addition to or amendment of
any other provisions of this Agreement effected pursuant to this Clause
shall terminate at 24.00 hours on 31st March, 1995 except for any
provision, addition or amendment which is required to continue beyond
that date to give effect to the operation of UMIS in respect of any
period before that date. Nothing in this Clause shall prejudice or
affect in any way whether and if so by what means all or any of the
elements comprising the difference between Pool Selling Price and Pool
Purchase Price are managed or otherwise dealt with after 24.00 hours on
31st March, 1995. This Clause 51A.7 may not be amended without the prior
written consent of all Parties.
51A.8 Termination or expiry of the provisions of this Clause, UMIS and/or any
addition to or amendment of any other provision of this Agreement
effected pursuant to this Clause shall not prejudice any Consumer's (as
defined in the Pool Rules) or the Grid Operator's (acting through its
agent the Ancillary Services Provider) accrued rights and liabilities
under UMIS at the date of such termination or expiry, which accrued
rights shall include, for the avoidance of doubt, the ability to adjust
sums calculated under UMIS in respect of disputes arising after such
termination or expiry.
163
PART XII
STATEMENT RE-RUNS
52. SETTLEMENT RERUNS
52.1 Re-runs: the Parties acknowledge and agree that there may be occasions
following any final run of Settlement (as referred to in paragraph D(3)
of the Preamble to Schedule 9) when it is necessary in respect of a
Settlement Day (or part thereof) to re-determine the trades of
electricity pursuant to this Agreement and the provision of Ancillary
Services (whether to take account of oversight or error, malfunction of
the Settlement System operation in accordance with Grid Operator
Despatch instructions issued under emergency circumstances, award of an
arbitrator(s) pursuant to Clause 83, court order or otherwise
howsoever). The Executive Committee, in consultation with the Settlement
System Administrator, the Pool Funds Administrator and the Pool Auditor
and, where appropriate, the Ancillary Services Provider, shall decide
how such re-determination is to be effected, the re-allocation of moneys
and the period of time over which any such reallocation is to take
place, any such decision to take account and give effect, as nearly as
practicable, to the principles and procedures set out in this Agreement
(and, where relevant, the award of the said arbitrator(s) or court
order). In particular, but without prejudice to the generality of the
foregoing, the Executive Committee may require following any relevant
final run of Settlement (and, shall take due notice of any request from
the Ancillary Services Provider to this effect) the Settlement System
Administrator to re-run, and the Settlement System Administrator shall
re-run, Settlement in respect of any Settlement Day (or relevant part
thereof) using the software and data originally used in respect of such
Settlement Day (or relevant part thereof) but subject to such changes,
amendments or additional inputs as may be required by the Executive
Committee, the Ancillary Services Provider, such arbitrator(s) or court
or (as the case may be) any other relevant Party. Any such re-run shall
hereafter in this Clause 52 be referred to as a "Re-run".
52.2 Timing: the Settlement System Administrator shall arrange for any Re-run
to be carried out as soon as is reasonably practicxable following
request by the Executive Committee subject to the availability of
computer time, compatible software, appropriate data and other
resources.
52.3 Ancillary Services Provider: the Ancillary Services Provider shall have
the right to incorporate any delayed or disputed amount in respect of
the provision of Ancillary Services into Settlement without requiring a
Re-run.
52.4 Notification: the Executive Committee shall promptly notify each Party,
the Pool Auditor and the Director of each occasion on which it requries
the Settlement System Administrator to carry out any Re-run, the reasons
for such requirement, the
164
timing thereof and the period to be covered thereby and shall provide
each Party with such information about any Re-run as is relevant to such
Party and shall provide the Pool Auditor and the Director with full
details of any Re-run.
52.5 Proviso: the foregoing provisions of this Clause 52 are subject to the
proviso that no Re-run shall be carried out, and neither the Executive
Committee nor any Party shall be entitled to requrie that a Re-run be
carried out, in respect of a Settlement Day or any part thereof after
the first anniversary of such Settlement Day, but so that this proviso
shall not restrict the right of any Party to claim or recover any moneys
properly due and owing to it under this Agreement.
165
PART XIII
RISK MANAGEMENT SCHEME
53. APPLICATION
53.1 Request: the Executive Committee shall send any Pool Member a Scheme
Admission Application within 28 days after receipt of a request for the
same from that Pool Member.
53.2 Scheme Admission Application: any Pool Member may apply to the Executive
Committee to have any Centrally Despatched Generating Unit admitted to
the Scheme by completing and submitting to the Executive Committee a
duly completed Scheme Admission Application not less than 40 days before
the proposed date of admission to the Scheme of that Centrally
Despatched generating Unit.
53.3 Admission: the Executive committee shall admit any Centrally Despatched
Generating Unit to the Scheme in respect of which all Scheme Admission
Condition are met.
53.4 Notification (1): if the executive committee determines that, in respect
of any Centrally Despatched Generating Unit, the Scheme Admission
Conditions have been met it shall forthwith and in any event within 40
days after receipt of the Scheme Admission Application notify the
relevant Pool Member and the Settlement system Administrator
accordingly.
53.5 Notification (2): if the Executive Committee determines that, in respect
of any Centrally Despatched Generating Unit, the Scheme Admission
Conditions have not been met it shall forthwith and in any event within
40 days after receipt of the Scheme Admission Application notify the
relevant Pool Member of the reasons why the Scheme Admission conditions
have not been met.
53.6 Reference to the Director: in the event of any dispute between the
Executive Committee and the relevant Pool Member over whether such Pool
Member has fulfilled the Scheme Admission conditions the same may be
referred by the Executive committee or the relevant Pool Member to the
Director for determination, whose determination shall be final and
binding for all purposes.
54. SCHEME ADMISSION CONDITIONS
The Scheme Admission Conditions are that:-
54.1 no person has an Accountable Interest in the Centrally
Despatched Generating Unit which is the subject of the Scheme
Admission Application which, when
166
added to the Accountable Interests of that person in other
Generating Units (whether situate with England and Wales or
elsewhere), exceeds in aggregate 1500MW;
54.2 the Pool Member does not have an Accountable Interest (excluding
any Accountable Interest of less than 10MW) in more than four
Generating Units (whether situate within england and Wales or
elsewhere). For the avoidance of doubt a combined cycle module
shall be deemed for these purposes a single Generating Unit;
54.3 the Centrally Despatched Generating Unit which is the subject of
the Scheme Admission Application has not at the date of the
Scheme Admission Application been Commissioned;
54.4 the Centrally Despatched Generating Unit shall be admitted for
seven calendar years from the date of its admission to the
Scheme specified in the Scheme Admission Application; and
54.5 the Pool Member shall specify in the Scheme Admission
Application the proposed Scheme Planned Availability for each
Settlement Period in the proposed first Scheme Year for the
Centrally Despatched Generating Unit.
55. RIGHTS AND OBLIGATIONS OF POOL MEMBERS
55.1 Notification of unavailability: in respect of each Scheme Year for each
Scheme Genset (other than the first) the Pool Member shall not later
than 28 days before the start of that Scheme Year for each Scheme Genset
notify the Executive Committee of all Settlement periods in that Scheme
Year during which the Scheme Genset is intended to be unavailable.
55.2 Scheme Planned availability: all settlement Periods in that Scheme Year
other than those notified under clause 55.1 shall together constitute
the Scheme Planned Availability in respect of that Scheme Genset for
that Scheme Year.
55.3 Failure to notify: if the Pool Member fails to notify the Executive
Committee in accordance with Clause 55.1 of the Scheme Planned
Availability in respect of that Scheme Genset for the following Scheme
Year, the Scheme Planned Availability shall be deemed to be the same as
the Scheme Planned Availability for the current Scheme Year.
55.4 No amendment: the Scheme Planned Availability for any Scheme Year
notified in accordance with Clause 55.1 or deemed in accordance with
Clause 55.3 may not be amended.
167
55.5 Payment rights: the Pool Member shall make or be entitled to receive
payments in respect of each Scheme Genset as determined in accordance
with Section 27 of Schedule 9 notwithstanding the expiry of the period
referred to in Clause 50.4.
55.6 No withdrawal: the Pool Member may not withdraw any Scheme Genset from
the Scheme during any period referred to in Clause 50.4 applicable to
that Scheme Genset.
55.7 Actual planned availability: in respect of each Scheme Genset, the Pool
member shall use all reasonable endeavours to ensure that the Scheme
Planned Availability for each Scheme Year is the actual planned
availability of such Scheme Genset.
56. REVIEW
56.1 Review: within two months after the end of the third Scheme Year in
respect of which the first Scheme Genset has been admitted to the Scheme
and each subsequent anniversary of that date the Executive Committee
shall (with the consent of the Director) appoint an independent firm of
accountants of internationally recognised standing to review the Scheme
to establish whether or not any element of the Scheme (or the Scheme
taken as a whole) gives rise to a systematic imbalance which is likely
to prevent the payments to the Scheme balancing payments from the Scheme
and to submit to the Executive committee and the director a report
setting out details of any such imbalance and his findings and
recommendations for amending the Scheme designed to correct any such
imbalance.
56.2 Amendments: the Executive Committee may make such amendments to the
provisions of Section 27 of Schedule 9 as are required to implement the
recommendations referred to in Clause 56.1. Any such amendments shall
apply in respect of any Scheme Admission Application received after the
date such amendments become effective and shall constitute a new Scheme.
56.3 Existing rights and obligations continue: any Pool Member shall remain
entitled to the benefits and subject to the obligations of the Scheme
with respect to any Scheme Genset in effect at the time of admission of
that Scheme Genset to the Scheme.
168
PART XIV
FUEL SECURITY
57. DEFINITIONS
Definitions: in this Part XIV:-
"Fuel Security Interest" in relation to a particular Payment
Instruction, means the interest (if any) accruing on the Fuel Security
Payment or Fuel Security Reimbursement specified in that Payment
Instruction pursuant to Sub-clause 2.08 of Part 5 of the Fuel Security
code:
"Fuel Security Ledger" means any ledger required to be maintained by the
Pool Funds Administrator in accordance with Clause 59;
"Fuel Security Payment" means the amount specified in a Payment
Instruction which a Generator is entitled to recover from those persons
specified in that Payment Instruction (excluding Fuel Security Interest,
if any, in relation thereto);
"Payment Instruction" means an instruction which has been duly
authorised and delivered by a Generator to whom the Fuel Security Code
applies to the Pool Funds Administrator in the form, and in the manner,
specified in the Fuel Security Code.
58. PAYMENT INSTRUCTIONS
58.1 Effect of a Payment Instruction: following delivery of a Payment
Instruction to the Pool Funds Administrator:-
58.1.1 any Fuel Security Payment specified in that Payment Instruction
(together with any Fuel Security Interest in relation thereto)
shall be treated as an amount which is due to that Generator
from those persons specified in that Payment Instruction and
which is payable on the basis provided in that Payment
Instruction; and
58.1.2 any Fuel Security Reimbursement specified in that Payment
Instruction (together with any Fuel Security Interest in
relation thereto) shall be treated as an amount which is due
from that Generator to those persons specified in that Payment
Instruction and which is payable on the basis provided in that
Payment Instruction; and
58.1.3 subject to Clauses 58.2 and 58.3, the Pool funds Administrator
shall arrange for such Fuel Security Payment or such Fuel
Security Reimbursement (together with any Fuel Security Interest
in relation
169
thereto) to be paid to or, as the case may be, paid by that
Generator by or, as the case may be, to those persons specified
in that Payment Instruction in accordance with the provisions of
such Payment Instruction; and
58.1.4 such Payment Instruction (including any calculation,
determination or other matter stated or specified therein)
shall, save in the case of fraud, be conclusive and binding upon
all Parties.
58.2 Clarification: if the Pool Funds Administrator considers either that the
basis of payment of a Fuel Security Payment or a Fuel Security
Reimbursement provided for in a Payment Instruction is unclear,
contradictory or incomplete or that it is impossible to implement in
full the basis of payment provided for in a Payment Instruction, then
the Pool Funds Administrator must, promptly on becoming aware of the
same, notify the Director in reasonable detail of the same and, until
that matter is clarified, the Pool Funds Administrator shall only be
obliged to implement the payment specified in that Payment Instruction
to the extent that without clarification such implementation is
possible.
58.3 Failure to specify or clarify: if a Payment Instruction fails to specify
the basis upon which the Fuel Security Payment or a Fuel Security
Reimbursement specified in that Payment Instruction must be paid or if
the Director fails to clarify any matter notified to it in accordance
with Clause 58.2 within ten Business Days of such notification then the
Pool Funds Administrator shall arrange for the relevant payment to be
made on such basis as the Executive Committee shall, with the written
approval of the director, determine to be appropriate.
59. RECORD KEEPING AND PAYMENTS
59.1 Fuel Security Ledgers:
59.2.1 following delivery of a Payment Instruction to the Pool Funds
Administrator, the Pools Funds Administrator shall, if he has
not already done so, open and thereafter maintain a Fuel
Security Ledger in the name of that Generator and shall record
therein all amounts (together with any Fuel Security Interest in
relation thereto) due to and from that Generator that are
specified in Payment Instructions and shall also record therein
all transactions arranged by the Pool Funds Administrator for
payments to be made to and from that Generator in accordance
with the provisions of Payment Instructions.
59.2.2 The Pool Funds Administrator shall from the time that a Fuel
Security Ledger is opened until it records a nil balance provide
to each Generator and to each Supplier on the last Business Day
of each
170
calendar month a statement reflecting all entries recorded in
the Fuel Security Ledger of that Generator over the course of
the previous month.
59.2.3 The Fuel Security Ledger of a Generator shall, except as
required by Clause 59.2.2 or Part IX, be kept confidential in
accordance with Part XX.
59.2.4 Each monthly statement provided under Clause 59.2.2 shall, save
in the case of manifest error, be deemed prima facie evidence of
the contents of that part of the Fuel Security Ledger to which
it relates.
59.2.5 Each Party shall promptly review each monthly statement provided
to it under Clause 59.2.2 and shall (without prejudice to any of
its rights under this Agreement) where practicable within ten
Business Days after receiving each such statement notify the
Pool Funds Administrator of any inaccuracies in such statement
of which it is aware.
59.2.6 If the Pool Funds Administrator at any time receives from a
Generator or any Supplier a notice disputing the accuracy of the
Fuel Security Ledger of that Generator, the Pool funds
Administrator shall consult with the Party giving the notice and
use all reasonable endeavours to rectify any inaccuracy. In the
event that any inaccuracy in a Fuel Security Ledger of a
Generator is rectified, the Pool funds Administrator shall
advise that Generator and the Suppliers of the inaccuracy that
was rectified.
59.2 Fuel Security Payments: following delivery to the Pool Funds
Administrator of a Payment Instruction specifying a Fuel Security
Payment, the Pool funds Administrator shall enter in the fuel Security
Ledger of that Generator as a credit (a) the amount of the Fuel Security
Payment, and (b) thereafter, any Fuel Security Interest in relation
thereto.
59.3 Fuel Security Reimbursements: following delivery to the Pool Funds
Administrator of a Payment Instruction specifying a Fuel Security
Reimbursement, the Pool funds Administrator shall enter in the Fuel
Security Ledger of that Generator as a debit (a) the amount of the Fuel
Security Reimbursement, and (b) thereafter, any Fuel Security Interest
in relation thereto.
59.4 Other Entries: any amount paid to or, as the case may be, paid by a
Generator in accordance with the provisions of a Payment Instruction
shall be entered as a debit or, as the case may be, a credit in the Fuel
Security Ledger of that Generator.
171
59.5 Set off: the Pool Funds Administrator shall, unless it reasonably
believes that it would be unlawful to do so, from time to time where
possible set off any amounts shown as credits in the Fuel Security
Ledger of a Generator against any amounts shown as debits in the Fuel
Security Ledger of that Generator in the order in which they were
entered. Any balance shown in the Fuel Security Ledger of a Generator
shall, if it is a credit, be paid to or, if it is a debit, be paid by
that Generator to the extent that it relates to a Payment Instruction on
the basis provided for in that Payment Instruction. The entitlements and
liabilities of a Generator (and the corresponding liabilities and
entitlements of the respective debtors and creditors of that Generator)
shall, to the extent that they have been set off as aforesaid, be deemed
satisfied and extinguished.
59.6 Schedule 11: all payments made to or by any Generator in accordance with
the provisions of a Payment Instruction shall, subject to any contrary
instruction contained i the provisions of a Payment Instruction, be
effected by the Pool funds Administrator through the Banking System and
the Billing System established in accordance with Schedule 11.
172
PART XV
METERING
60.1 METERING
60.1 Introduction: the rights and obligations of each Party to this Agreement
which enable the accurate measurement of Energy traded for the purposes
of this Agreement by appropriate metering installations are as set out
in this Part XV and also in Schedule 21, and the provisions of Schedule
21 shall have effect and apply in the same manner as the remaining
provisions of this Agreement apply with respect to each such Party.
60.2 General
60.2.1 for the purposes of this Agreement the quantities of Active
Energy and Reactive Energy Exported or Imported by Parties shall
be measured and recorded through Metering Equipment installed,
operated and maintained and otherwise provided for as set out in
this Part XV and in Schedule 21. Each Generating Unit (excluding
for this purpose Generation Trading Blocks) which is subject to
Central Despatch shall have separate Metering Equipment.
60.2.2 Each Party is required to register or procure that there is
registered with the Settlement system Administrator the Metering
System at each site where such Party Exports or Imports
electricity except where such electricity is not sold or
purchased in accordance with the Pool Rules.
60.3 Registrants:
60.3.1 a Metering System shall have a Registrant and Operator before
the Settlement System Administrator is required to take such
Metering system into account for the purposes of Settlement.
60.3.2 Each Metering System (and the identifies of its respective
Registrant and Operator) which the Settlement System
Administrator shall take into account for the purposes of
Settlement shall be as set out, for the time being and from time
to time, in the Register.
60.3.3 A Registrant's role in relation to a Metering System under this
Agreement shall continue until:-
(i) such Registrant ceases to be a party or another Party
complying with the definition of Registrant accepts such
role
173
as Registrant in accordance with the provisions of this
Agreement by service of a duly completed notice in the
form prescribed by the relevant Agreed Procedure (but
without prejudice to any accrued liabilities of the
previous Registrant); or
(ii) the Plant or Apparatus of the Registrant, in respect of
such Metering System, ceases to be connected at the
relevant site (as indicated in the notification to the
Settlement system Administrator in the form prescribed
by the relevant Agreed Procedure); or
(iii) in the case of a Registrant of a Metering System which
is at the point of connection between a Public
Electricity Supplier's Distribution System and a Second
Tier Customer, the Registrant ceases to act as Second
Tier Supplier in relation to the same at such point of
connection.
60.3.4 The Settlement System Administrator shall inform the relevant
Host PES of:-
(i) the identity of any new Registrant; and
(ii) any change in the identity of any existing Registrant.
of a Metering System in respect of which that Public Electricity
is Host PES, after such change is notified to the Settlement
system Administrator in accordance with the terms of this
Agreement.
60.3.5 there must always be one and, at any point in time, no more than
one Registrant for each Metering System which is registered with
the Settlement System Administration.
60.3.6 Any notice of a new, or of a change in an existing, Registrant,
Equipment Owner Operator, Second Tier customer or Host PES or
any Form of Acknowledgement required under this Part XV or
Schedule 21 shall be in such form and given to such person at
such time(s) and accompanied by payment of such fees (if any) as
is prescribed by the relevant Agreed Procedures.
60.3.7 If a Metering System ceases to have a Registrant who is not
replaced as Registrant in relation to the relevant Metering
Equipment, the Settlement System Administrator shall not be
obliged to take the relevant Metering System into account for
the purposes of Settlement.
174
60.3.8 A Registrant may not resign or retire as Registrant except in
accordance with Clause 60.3.3.
60.3.9 The Registrant in respect of any Metering System shall provide
to the Settlement System Administrator such information as may
be required by the relevant Agreed Procedures.
60.3.10 The Settlement System Administrator shall not enter on the
Register a Registrant in respect of which evidence of consent of
the Equipment Owner has not been provided in accordance with the
relevant Agreed Procedure.
60.3.11 Where a Metering System at the point of connection of two or
more Distribution Systems is to be registered with the
Settlement System Administrator, all interested Parties shall
agree upon and nominate the Registrant by means of a duly
completed nomination to the Settlement System Administrator in
the form prescribed by the relevant Agreed Procedure.
60.4 Operators:
60.4.1 there must always be one and, at any point in time, no more than
one Operator for each Metering System which is registered with
the Settlement System Administrator. A replacement Operator of
such Metering System may be appointed from time to time in
accordance with the provisions of this Part XV, Schedule 21 and
the relevant Agreed Procedure.
60.4.2 Any notice of a new Operator or of a change in Operator
(including upon resignation, removal or cessation in accordance
with the provisions of Schedule 21) or any form of
Acknowledgement required under this Part XV or Schedule 21 shall
be in such form and given to such person at such time(s) and
accompanied by payment of such fees (if any) as is prescribed by
the relevant Agreed Procedures. Where any Meter Operator Party
has not acknowledged its appointment as Operator the Settlement
system Administrator shall notify the Registrant in accordance
with the relevant Agreed Procedure.
60.4.3 The Registrant in respect of a Metering System shall ensure that
there is appointed from time to time an Operator, which is a
Meter Operator Party, in accordance with, and for the purposes
of, Schedule 21 as Operator in respect of that Metering System.
175
60.4.4 If a person which is an Operator in respect of any Metering
System ceases to be an Operator in respect thereof for whatever
reason (including upon removal or resignation) or ceases to be a
meter Operator Party (including upon removal or resignation) and
there has not been appointed, at that time, a replacement
Operator in respect of the relevant Metering System(s) in
accordance with the provisions of this Part XV and Schedule 21,
such person's responsibilities as Operator of such Metering
Equipment shall upon such cessation be assumed by the Registrant
in respect of such Metering Equipment who shall be deemed to be
the Operator therefor (notwithstanding that it shall not be
registered as such by the Settlement System Administrator) in
accordance with the provisions of this Clause (the "deemed
Operator").
60.4.5 As soon as any Registrant has reasonable grounds to believe that
an Operator of any Metering system in respect of which it is the
Registrant has ceased to act as Operator therefor in accordance
with substantially all of its responsibilities as set out in
Schedule 21 it shall remove such Operator in respect of such
Metering System in accordance with paragraph 6.1 of Schedule 21.
60.4.6 If the Settlement System Administrator has reasonable grounds to
believe that an Operator of any Metering System has ceased to
act as Operator therefor in accordance with substantially all of
its responsibilities as set out in Schedule 21 the Settlement
System Administrator shall notify the Registrant in accordance
with the relevant Agreed Procedure.
60.4.7 Any Registrant which is deemed to be the Operator of a Metering
System pursuant to the provisions of Clause 60.4.4 shall,
subject to Clauses 60.4.8 and 60.4.9, continue to act as the
Operator in respect of any Metering System to which that Clause
applies, or shall appoint an agent or contractor which shall
continue to act as the Operator in respect of such Metering
System, for a period of 10 Business Days (which shall commence
at the time of the cessation referred to in Clause 60.4.4) or,
if a new Operator is registered in respect of that Metering
System prior to the expiry of that period, for a period ending
on the date of such registration.
60.4.8 If a Registrant to which Clause 60.4.7 applies does not act as
Operator in accordance with the provisions thereof or does not
appoint an agent or contractor who shall act as Operator, or if
the 10 Business Day period referred to in Clause 60.4.7 shall
expire without a replacement Operator being registered with the
Settlement System Administrator in
176
respect of that Metering System in accordance with paragraph 4
of Schedule 21, that Registrant shall:
(i) undertake to cease forthwith to supply or to generate
electricity for the purposes of the sale or acquisition
of electricity pursuant to this Agreement at the site
where such supply or generation is measured, recorded
and communicated to the Settlement System Administrator
by that Metering System; and
(ii) notify the Settlement System Administrator in accordance
with the relevant Agreed Procedure of that fact.
60.4.9 During the period in which a Registrant is the deemed Operator
in accordance with this Clause it shall be required (save only
as expressly provided to the contrary in this Agreement) to
comply with the requirements of this Part XV and Schedule 21 as
Operator provided that, but without prejudice to any liability
to pay for Active or Reactive Energy traded by it, such
Registrant as deemed Operator:
(i) shall not be required to be registered as Operator with
the Settlement System Administrator nor to comply with
the prescribed conditions for registration as Operator
from time to time in accordance with the provisions of
Schedule 21; and
(ii) shall not at any time when it is the deemed Operator be
required to incur significant capital expenditure in the
fulfillment of obligations contained in this Part XV or
Schedule 21 where:
(a) the Metering Equipment shall have become
defective, inaccurate or in want of repair (the
"defective Metering Equipment") as a direct
consequence of the act or omission of any
previous Operator;
(b) the Registrant shall upon becoming aware of the
same have taken all steps to cease forthwith to
supply or to generate electricity for the
purposes of the sale or acquisition of
electricity pursuant to this Agreement at or in
relation to the site where such supply or
generation is measured, recorded and
communicated to the Settlement System
Administrator by the defective Metering
Equipment; and
177
(c) the Registrant shall have notified the
Settlement System Administrator in accordance
with the relevant Agreed Procedure of the fact
that the supply or generation has ceased.
Where (x) the Settlement System Administrator proposes
to exercise its right under paragraph 18 of Schedule 21
to replace, renew or repair the defective Metering
Equipment (the "remedial work"); (y) the exercise of
such right would result in the incurring of significant
capital expenditure; and (z) the Register indicates that
such Registrant is acting as deemed Operator, the
Settlement System Administrator shall notify the
Registrant before undertaking such remedial work and
shall give such Registrant the opportunity to comply
with (ii) (b) and (c) above before commencing such
remedial work.
60.5 Maintenance of Register and documents:
60.5.1 the Settlement System Administrator shall keep a register
recording:
(i) each Metering System which is accepted for the purposes
of the Settlement System;
(ii) the respective identities in respect of each such
Metering System of:
(a) the Registrant;
(b) the Operator;
(c) the Equipment Owner;
(d) the Host PES (where applicable);
(e) any Second Tier Customer in respect of a supply
to which that Metering System is being used; and
(f) any agent which may be appointed from time to
time by the Settlement System Administrator for
the purpose of data collection or, where
appropriate, of any Second Tier Agent in respect
of such Metering System or, where the Settlement
System Administrator does not appoint or have
currently appointed such agent or Second Tier
Agent in respect of a Metering System, a note to
this effect;
178
(iii) loss adjustment details whether by meter biasing or by
software;
(iv) whether the Metering Equipment comprising a Metering
System is the subject of a dispensation agreed in
accordance with paragraph 14 of Schedule 21; and
(v) the relevant Code(s) of Practice in respect of such
Metering System.
60.5.2 For the purposes of this Agreement, the Settlement System
Administrator shall refer only to the Register to identify the
Registrant, Operator, Equipment Owner, Host PES, Second Tier
Customer, agent or Second Tier Agent referred to in Clause
60.5.1 relating to each Metering System and shall not be obliged
to acknowledge or be bound by any other agreement or arrangement
entered into by any Registrant, Operator, Equipment Owner, Host
PES or Second Tier Customer.
60.5.3 The Settlement System Administrator shall keep the Register up
to date, noting changes to Registrants, Operators, Equipment
Owners, Host PESs, Second Tier Customers, Metering Equipment,
dispensations and any Site disconnections as notified to it
pursuant to this Agreement and any changes to any agent or
Second Tier Agent. The Settlement System Administrator shall
also record in the Register any other information regarding each
Metering System as may be reasonably required by the Executive
Committee.
60.6 Communication lines and central collector stations:
60.6.1 the Settlement System Administrator shall collect (or procure
the collection of) and estimate data relating to quantities of
Active and Reactive Power Imported or Exported by any Party as
may be required for the proper functioning of Settlement in
accordance with the provisions of this Clause 60.6.
60.6.2 The Settlement System Administrator shall collect or procure the
collection of all such data referred to in Clause 60.6.1 as is
available from Outstations either by means of remote
interrogation or by means of manual on-site interrogation.
60.6.3 (a) For the purposes of remote interrogation the Settlement
System Administrator shall enter into, manage and
monitor contracts or other arrangements to provide for
the maintenance of all communication links by which
information is passed from
179
Outstations to the Settlement System Administrator or
its agent.
(b) In the event of any fault or failure of any
communication link or any error or omission in such data
or all necessary data not being available from
Outstations the Settlement System Administrator shall
collect or procure the collection of such data by manual
on-site interrogation in accordance with the relevant
Agreed Procedures.
60.6.4 The Settlement System Administrator shall be responsible for the
installation and maintenance of central collector stations.
60.6.5 The Settlement System Administrator shall collect or procure the
collection of data for the purposes of the Settlement System
from Embedded Generators, Second Tier Suppliers, Second Tier
Customers and inter-Distribution System connections in
accordance with the relevant Agreed Procedures.
60.6.6 The obligation to maintain communications links in respect of
Metering Equipment shall not apply where and with effect from
the date on which a person receiving a supply of or generating
electricity recorded by such Metering Equipment ceases to be a
Second Tier Customer, a Generator or a PES.
60.7 Class rights:
60.7.1 the levels of accuracy for Metering Equipment at points of
connection of Second Tier Customers taking up to (and including)
100kW of demand and at new points of connection between two or
more Distribution Systems were not set as at 1st April, 1993 and
shall be specified by the Executive Committee subject to the
consent of any relevant class of Pool Members.
60.7.2 Any change to the standards of accuracy of Metering Equipment
required for Second Tier Customers up to (and including) 1MW
before 31st March, 1994 or up to (and including) 100kW before
31st March, 1998 shall be a change to the class rights of
Suppliers.
60.8 Sealing: Metering Equipment shall be as secure as is practicable in all
the circumstances and for this purpose:
180
(a) all Metering Equipment shall comply with the relevant Agreed
Procedure; and
(b) the Executive Committee and the Settlement System Administrator
shall regularly review Agreed Procedures for security
arrangements in relation to Metering Equipment.
60.9 Discrepancies between meter advance and half hourly value totals: the
Parties acknowledge that, in transmitting metered data, impulses
representing quantities of electricity may be lost between the relevant
Meter and the Outstations giving rise to inaccuracies in half hourly
values notwithstanding that the Metering Equipment is complying with the
standards required by this Agreement. In such circumstances any
differences between electricity flows recorded on meters and the total
of the half hourly values recorded in the Settlement System will be
noted at the time that the Meter is inspected and read by the Settlement
System Administrator pursuant to paragraph 10 of Schedule 21 and will be
dealt with as provided in the relevant Agreed Procedure. In any other
circumstances where the Metering Equipment is not complying with the
standards required by this Agreement such difference will be dealt with
in accordance with paragraph 11 of Schedule 21.
60.10 Meter Failure:
60.10.1 if at any time any Metering Equipment ceases to function or is
found to be outside the prescribed limits of accuracy referred
to in paragraph 7.3.1 of Schedule 21 for whatever reason then,
except in those circumstances referred to in Clause 60.10.2:
(a) in the case of Metering Equipment ceasing to function,
during the period from the date of such cessation; or
(b) in any other case, during the period from the time when
such inaccuracy first occurred or, if such time is
unknown, from the midnight preceding the day during
which the disputed reading occurred.
until, in either such case, the date of adjustment,
replacement, repair or renewal of such Metering
Equipment under paragraph 8.4 of Schedule 21, the meter
readings shall be deemed to be those calculated pursuant
to the relevant Agreed Procedure.
60.10.2 If at any time a voltage transformer fuse on a circuit supplying
a Meter fails with the result that the Metering Equipment is
outside the prescribed limits of accuracy referred to in
paragraph 7.3.1 of Schedule 21, the meter readings from the time
the failure is deemed to have
181
occurred until the voltage transformer circuit is again restored
to the Meter shall be deemed to be those calculated pursuant to
the relevant Agreed Procedure. A failure shall be deemed to have
occurred at the point in time provided for in the relevant
Agreed Procedure.
60.11 Disputes:
60.11.1 any dispute regarding the accuracy of data recorded or
transmitted by Metering Equipment in respect of any Settlement
Day which is to be used for the purposes of Settlement and where
the purpose of the resolution of such dispute is solely to
affect payments arising from a Settlement Run shall, if there is
a relevant Agreed Procedure, be dealt with in accordance with
such Agreed Procedure. If, having exhausted such Agreed
Procedure any Party is not satisfied with the outcome, such
Party may refer the matter to the Executive Committee. If there
shall be no relevant Agreed Procedure, such dispute shall be
referred to the Executive Committee. If, in either case, any
Party is not satisfied with the decision of the Executive
Committee, the matter may be referred by such Party to
arbitration in accordance with Clause 83.
60.11.2 Any dispute regarding Metering Equipment (other than a dispute
referred to in Clause 60.11.1) shall be referred to the
Executive Committee. If any Party is not satisfied with the
decision of the Executive Committee, the matter may be referred
by such Party to arbitration in accordance with Clause 83.
60.11.3 It is hereby expressly acknowledged and agreed by the Parties
that the resolution of any dispute referred to in Clause 60.11.1
or 60.11.2 shall in all cases be without prejudice to the
bringing or pursuing of any claim, by or against, or the
resolving of any issue between any one or more of such Parties
or any other Party arising out of the same facts or
circumstances, or facts or circumstances incidental to the facts
and circumstances giving rise to such dispute, or upon the basis
of which such dispute has been resolved, in favor of, or
against, a Meter Operator Party or Meter Operator Parties.
60.11.4 Upon the request of any Party which is a party to a dispute
referred to in Clause 60.11.1 or 60.11.2 any relevant data
derived from Metering Equipment may be submitted by the
Settlement System Administrator to the body then having
jurisdiction in respect of the relevant dispute for the purposes
of resoling such dispute.
182
60.12 Information:
60.12.1 if a Pool Member or Party intends to make or provide or make a
significant alteration to a connection to the NGC Transmission
System or to a Distribution System which connection is of 100MW
or more in capacity and which may require a new Metering System
to be registered into the Settlement System or a significant
change to a Metering System to be registered into the Settlement
System, the Pool Member or Party shall inform the Settlement
System Administrator as soon as possible and, in any event, not
later than three months prior to the date on which the Pool
Member or Party expects to make or provide the connection or
change. Such information will be regarded as confidential to the
Pool Member or Party providing it, and will be used by the
Settlement System Administrator only for the purpose of
preparing the Settlement System to take account of the Metering
System when it is registered.
60.12.2 Any information regarding or data acquired by the Settlement
System Administrator or its agent from Metering Equipment at any
Site which is a point of connection to a Distribution System
shall, and may, be passed by the Settlement System Administrator
or its agent to the operator of the relevant Distribution
System. The said operator of the relevant Distribution System
may only use the same for the purposes of the operation of the
Distribution System and the calculation of charges for use of
and connection to the Distribution System.
60.13 Ownership of Metering Data, access, use and use of Communications
Equipment:
60.13.1 the Registrant of any Metering System shall own the data
acquired therefrom provided that (and each Registrant hereby
expressly agrees and acknowledges that) a Second Tier Customer
of that Registrant in respect of which such data is generated
shall be entitled at all times without charge by the Registrant
to access, obtain and use such data and provided further that:
(i) such access, obtaining or use, or the method of such
access, obtaining or use, does not interfere with the
operation of Settlement;
183
(ii) nothing in this Clause 60.13.1 shall require the
Registrant actively to provide such data to such Second
Tier Customer or so to provide such data free of charge;
and
(iii) such access shall not be by using any communications
link used by the Settlement System Administrator for the
purposes of Clause 60.6 without the prior written
consent of the Settlement System Administrator.
60.13.2 The Settlement System Administrator is hereby authorized to use
all data which is owned by the Registrant pursuant to Clause
60.13.1 as may be permitted pursuant to this Agreement, and the
Settlement System Administrator may only release such data to
others to the extent set out in this Agreement. It is hereby
expressly agreed that the Settlement System Administrator is
permitted to and shall against request and payment of a
reasonable charge therefor release to a Second Tier Customer
such data relating to it as is referred to in Claque 60.13.1.
60.13.3 Communications Equipment need not be dedicated exclusively to
the provision of data to the Settlement System Administrator for
the purposes of Settlement provided that any other use shall not
interfere at any time with the operation of Settlement and
subject also to the relevant provisions (if any) in the Tariff.
60.14 Ancillary Services: until the RP Date, the Ancillary Services Provider
shall be entitled at its own cost and expense (which shall not be
charged or recharged to Pool Members) to prepare and submit to the
Suppliers in separate class meeting a works program relating to the
method of recovery from Pool Members for the supply of Reactive Energy
by reference to the actual amount of Reactive Energy consumed by Pool
Members as measured by MVAr Metering Equipment at each relevant Site,
and, if approved by the Suppliers in separate class meeting, such works
program shall be deemed to be an approved Works Program for all purposes
of this Agreement and the provisions of Clauses 5.13 and 5.14 shall
apply mutatis mutandis.
60.15 Appointment by Agents by Settlement System Administrator:
notwithstanding the provisions of Clause 31.2.2 the Settlement System
Administrator may appoint one or more agents to perform any or all of
its obligations under this Part XV and Schedule 21.
60.16 Appointment of Second Tier Agents by Settlement System Administrator
from the Effective Date:
184
60.16.1 from the Effective Date, each of the Public Electricity
Suppliers who are Founder Suppliers shall be appointed a non-
exclusive agent by the Settlement System Administrator for the
purpose of carrying out the obligations of the Settlement System
Administrator under or in connection with this Part XV and
Schedule 21 in relation to such Metering Systems at the point of
connection between such Public Electricity Supplier's
Distribution System and:
(i) a Second Tier Customer;
(ii) the System of an Authorized Electricity Operator other
than the Public Electricity Supplier;
(iii) an Embedded Generator not subject to Central Dispatch;
and
(iv) the Distribution System of another Public Electricity
Supplier,
as the Settlement System Administrator may direct. The
appointment of each such Second Tier Agent shall
continue unless and until terminated by either such
Second Tier Agent or the Settlement System Administrator
giving to the other no less than 12 months' notice in
writing to expire on or after the fourth anniversary of
the date of this Agreement. The provisions of Clauses
60.16.1 to 60.16.20 and Clause 60.18 shall apply in
respect of such Second Tier Agents for so long as they
continue to be appointed as Second Tier Agents pursuant
to the provisions of Clause 60.16.1. For the avoidance
of doubt the provisions of Clause 60.16.15 shall
continue to apply to such Second Tier Agents after 31st
March 1994.
60.16.2 Notwithstanding the provisions of Clause 60.16.1 the Settlement
System Administrator may remove a Second Tier Agent at any time
without notice if it fails in any persistent and material
respect to perform its obligations hereunder, provided that the
Settlement System Administrator shall have given written notice
to the Second Tier Agent specifying in reasonable detail the
nature of the breach and requiring the Second Tier Agent within
28 days after notice of such breach (or within any longer period
agreed between the Settlement System Administrator and the
Second Tier Agent) and that at the expiry of such period the
breach remains unremedied.
185
60.16.3 A Second Tier Agent shall collect, aggregate, adjust and
transmit metering data in accordance with the provisions of the
relevant Agreed Procedure and the Pool Rules. The costs of any
agency appointment made pursuant to this Part XV or Schedule 21
shall be treated as Bought-In Supplies (as defined in Schedule
4) and accordingly a cost beyond the control of the Settlement
System Administrator.
60.16.4 Each Second Tier Agent shall operate such agency business in an
efficient and economic manner. It shall maintain such records,
data and other information as the Pool Auditor may from time to
time by notice and in reasonable detail to the Second Tier Agent
reasonably require for the purposes of this Clause 60.16 or as
may otherwise be reasonably necessary to enable the Settlement
System Administrator to comply with its obligations under this
Agreement which are referred to in Clause 60.16.1.
60.16.5 The Settlement System Administrator may require the Pool Auditor
to carry out audits, reviews, tests or checks in relation to
each Second Tier Agent as the Settlement System Administrator
may from time to time reasonably require (having regard, in
particular, to the disruptive effect of the same on the business
and operations of the Second Tier Agent). The terms of
engagement of any such audit, reviews, tests or checks shall be
made available to the Second Tier Agent. No more than two
audits, reviews, tests or checks may be made in any one
Accounting Period.
60.16.6 In instructing the Pool Auditor pursuant to Clause 60.16.5 the
Settlement System Administrator may require the Pool Auditor:
(a) forthwith to report any material concerns with respect
to matters the subject of the relevant audit, review,
tests or check; or
(b) make such recommendations as to changes in the
procedures, controls and/or audit coverage of the agency
business as the Pool Auditor considers appropriate.
60.16.7 Any Second Tier Agent shall permit the Pool Auditor such access
to its agency operations and all records, data and information
held by the Second Tier Agent in the conduct of
186
such agency operations as the Pool Auditor may reasonably
require and shall make available members of its staff to
explain such operations and such other issues as the Pool
Auditor considers relevant.
60.16.8 The Pool Auditor shall report to the Settlement System
Administrator and a copy of any report by the Pool Auditor
relating to any audit, review, tests or check made pursuant to
Clause 60.16.5 shall be provided to the Settlement System
Administrator. The Pool Auditor shall owe a duty of
confidentiality to the Second Tier Agent provided that nothing
in this Clause 60.16.8 shall prevent the disclosure of such
report to the Settlement System Administrator.
60.16.9 If the Settlement System Administrator so requires, the Second
Tier Agent shall promptly implement any recommendation made by
the Pool Auditor in a report relating to any audit, review,
test or check pursuant to Clause 60.16.5 subject to a right of
appeal.
60.16.10 The costs of any audit, test, review or check pursuant to
Clause 60.16.5 shall be borne by the Settlement System
Administrator which may recover the same through the
Accounting Procedure. The cost of implementing any
recommendations pursuant to Clause 60.16.9 may be recovered by
the Second Tier Agent through its agency charges.
60.16.11 In the performance of its duties and obligations under this
Clause 60.16 a Second Tier Agent shall at all times be acting
as the agent of the Settlement System Administrator and the
Settlement System Administrator shall indemnify each Second
Tier Agent and its officers, employees and agents against all
Losses (as defined in Clause 33.1) arising whether directly or
indirectly as a result of the Second Tier Agent entering into
any agreement as agent for, or otherwise on behalf of, the
Settlement System Administrator other than any Losses
recoverable through its charges as agent or arising from the
willful default, bad faith or negligence of, or breach of its
obligations under this Agreement by, the Second Tier Agent,
its officers, employees and agents.
60.16.12 Each Second Tier Agent acknowledges the responsibilities of
the Settlement System Administrator under this Agreement and
the standard of care set out therein and under the NGC
187
Transmission License and the Act. In the collection,
aggregation and adjustment of data and information required
pursuant to this Clause 60.16 to each Second Tier Agent shall
act in accordance with such directions and instructions of the
Settlement System Administrator as are required to fulfill its
obligations under this Agreement in accordance with the
standard of care set out in Clause 32.1, and in any event,
without prejudice to the generality of the foregoing, in the
absence of directions and instructions given to it by the
Settlement System Administrator each Second Tier Agent shall,
in its role as agent under this Clause 60.16, at all times
conduct itself in a manner best calculated to achieve the
principal objects and purpose of this Agreement set out in
Clauses 4.1.2 and 4.1.3.
60.16.13 Each Second Tier Agent shall:
(a) maintain such back-up arrangements in relation to its
Second Tier Data Collection System as the Settlement
System Administrator may reasonably require in order
for it to comply with its obligations under Clause
29.2;
(b) implement all directions and instructions in relation
to its Second Tier Data Collection System as shall be
advised to the Settlement System Administrator under
this Agreement by the Executive Committee and with
which the Settlement System Administrator is obliged
to comply;
(c) provide upon request such reports, data and other
information concerning the Second Tier Data
Collection System as the Settlement System
Administrator may reasonably require to comply with
its obligations under this Agreement;
(d) operate the Second Tier Software in accordance with
the Pool Rules and properly employ the Second Tier
Hardware in carrying out its duties and
responsibilities and performing its obligations in
respect of the operation of its Second Tier
Collection System;
(e) provide the Settlement System Administrator with its
best estimates of information within the timescales
provided by this Agreement for the purposes of Clause
29.18;
188
(f) generally carry out all such technical operative,
executive, administrative and advisory services in
connection with the operation of its Second Tier Data
Collection System as from time to time may reasonably
be required by the Settlement System Administrator;
(g) subject to the availability in the insurance market
of such insurances, effect and maintain in full force
and effect with first class insurers insurance in
relation to the Second Tier Hardware, the Second Tier
Software, its Second Tier Data Collection System and
its duties as agent hereunder so as to permit the
Settlement System Administrator to comply with the
requirements of Clause 30;
(h) take such other action as may reasonably be required
by the Settlement System Administrator in relation to
its Second Tier Data Collection System in order to
permit the Settlement System Administrator to comply
with its obligations under this Agreement;
(i) not delegate the performance of all or any of its
duties and responsibilities hereunder to agents or
other contractors without the prior written consent
of the Settlement System Administrator; and
(j) reimburse the Settlement System Administrator any
costs, losses or expenses suffered by the Settlement
System Administrator (which are not recoverable under
the Accounting Procedure) due to claims made against
the Settlement System Administrator to the extent the
same are due to any breach by such Second Tier Agent
of its obligations under this Clause 60.
60.16.14 (i) Where at any time there is any material inconsistency
between the Second Tier Software, the written
procedures used by the relevant Second Tier Agent in
connection with the operation of the Second Tier Data
Collection System (the "Second Tier Operational
Procedures") and the Second Tier Specification such
Second Tier Agent shall promptly correct the same (so
as to ensure that the Second Tier Software and the
Second Tier Operational Procedures are consistent in
all material respects with the Second Tier
Specification) and may
189
charge or recharge the reasonable costs of correction
to the Settlement System Administrator.
(ii) Each Second Tier Agent undertakes to the Settlement
System Administrator promptly and properly to input
data and other information as it may receive pursuant
to the terms of this appointment into its Second Tier
Computer Systems. Each Second Tier Agent shall review
and validate data and other information in accordance
with the relevant Agreed Procedures to establish the
completeness thereof and to identify any
inconsistencies therein.
60.16.15 Each Second Tier Agent hereby acknowledges and agrees that the
Settlement System Administrator is required pursuant to
Clauses 68 and 69 to keep certain information confidential and
hereby undertakes to the Settlement System Administrator not
to disclose information obtained by the Second Tier Agent in
such capacity so as to cause a breach by the Settlement System
Administrator of its obligations pursuant to Clauses 68 or 69.
Each Second Tier Agent shall reimburse the Settlement System
Administrator the costs of any breach of such confidentiality
obligations by the Settlement System Administrator caused by
such Second Tier Agent.
60.16.16 Upon the removal or resignation of any Second Tier Agent, the
retiring or removed Second Tier Agent shall make over to the
Settlement System Administrator or its nominee all such
records, manuals and data and other information in the
ownership or under the control of the Second Tier Agent and
relating to the operation, and necessary for the proper
functioning, of the Second Tier Data Collection System.
60.16.17 Upon the removal or resignation of any Second Tier Agent, all
Second Tier Agents as at the Effective Date shall, if
requested by the Settlement System Administrator, grant a
license of the Second Tier Software to the Settlement System
Administrator or to such of its agents as the Settlement
System Administrator may direct upon terms which are
reasonable in all the circumstances and shall use all
reasonable endeavors to make available to the Settlement
System Administrator or any such agent any license or other
agreement to use or maintain the Second Tier Software where
necessary for the proper functioning of the Second Tier Data
Collection System. Any
190
failure to agree such terms shall be referred to arbitration
pursuant to the provisions of Clause 83.
60.16.18 Following the FMS Date, the Settlement System Administrator
may direct that some or all of the Metering Systems referred
to in Clause 60.16.1 which, as at the Effective Date, provide
data and information directly to the Settlement System
Administrator shall thenceforth provide data to a specified
Second Tier Agent or Second Tier Agents (if any).
60.16.19 Each Second Tier Agent shall be entitled to recover from the
Settlement System Administrator all costs properly incurred in
acting as Second Tier Agent in accordance with this Clause
60.16. In addition, each Second Tier Agent may recover a
reasonable annual management agency fee as may be agreed
between it and the Settlement System Administrator (and, in
default of agreement, the dispute shall be referred to
arbitration in accordance with Clause 83). During the first
four years of its appointment each Second Tier Agent shall
recover its capital expenditure properly incurred for the
purposes of its Second Tier Data Collection System spread
equally over such four year period at a real discount rate of
8 percent. Each Second Tier Agent shall recover the costs to
which it is entitled under this Clause 60.16.19 from the
Settlement System Administrator on a monthly basis.
60.16.20 Upon the resignation or removal of any Second Tier Agent, the
relevant Second Tier Agent shall be entitled to recover from
the Settlement System Administrator such costs as are detailed
in Clause 60.16.19 and which that Second Tier Agent has not
recovered prior to the date of such resignation or removal.
The costs which such Second Tier Agent is entitled to recover
shall be any accrued management agency fee referred to in
Clause 60.16.19 together with the net book value of the
capital assets or parts of assets the subject of the capital
expenditure referred to in Clause 60.16.19 (which net book
value shall not be written up without the consent of the
Executive Committee, such consent not be to unreasonably
withheld or delayed). Such Second Tier Agent shall make a
balancing payment to the Settlement System Administrator in an
amount equal to the net realizable market value of such
capital assets or parts of assets at the date of the
resignation or the removal of the Second Tier Agent. The costs
to or receipts by the Settlement System Administrator as a
result of
191
such resignation or removal shall be charged or credited to
Pool Members which are Registrants of Metering Systems at
Second Tier Sites as appropriate. Any dispute relating to the
amount of any payment to be made pursuant to this Clause
60.16.20 shall be referred to arbitration pursuant to the
provisions of Clause 83.
60.17 Appointment of Second Tier Agents by Settlement System Administrator
with effect from 31st March 1994:
60.17.1 if, for the purposes of Clause 60.15, the Settlement System
Administrator appoints whether in addition to or substitution
for those agents appointed pursuant to Clause 60.16 one or
more agents for the purpose of carrying out the obligations of
the Settlement System Administrator under or in connection
with this Part XV or Schedule 21 in relation to Metering
Systems at or referable to points of connection relating to
Second Tier Customers as the Settlement System Administrator
may direct, then the provisions of Clauses 60.17.1 xx 00.00.00
and Clause 60.18 shall, inter alia, apply to such
arrangements.
60.17.2 The Settlement System Administrator shall, prior to appointing
any Second Tier Agent pursuant to Clause 60.17.1, consult with
the Executive Committee as to the appropriateness of the
appointment of such Second Tier Agent and the terms upon
which, if appropriate, such agent is to be appointed and shall
have due regard to the wishes expressed pursuant to this
Clause 60.17.2 by the Executive Committee.
60.17.3 The Settlement System Administrator may require the Pool
Auditor to carry out audits, reviews, tests or checks in
relation to each or any Second Tier Agent as the Settlement
System Administrator may from time to time reasonably require.
No more than two audits, reviews, tests or checks may be made
by the Pool Auditor in any one Accounting Period.
60.17.4 In instructing the Pool Auditor pursuant to Clause 60.17.3 the
Settlement System Administrator may require the Pool Auditor:
(a) forthwith to report any material concerns with
respect to matters the subject of the relevant audit,
review, test or check; or
192
(b) make such recommendations as to changes in the
procedures, controls and/or audit coverage of the
agency business as the Pool Auditor considers
appropriate.
60.17.5 The Settlement System Administrator shall use reasonable
endeavors to procure that each Second Tier Agent shall permit
the Pool Auditor such access to its agency operations and all
records, data and information held by the Second Tier Agent in
the conduct of such agency operations as the Pool Auditor may
reasonably require and shall make available members of its
staff to explain such operations and such other issues as the
Pool Auditor considers relevant.
60.17.6 The Pool Auditor shall report to the Settlement System
Administrator and a copy of any report by the Pool Auditor
relating to any audit, review, test or check made pursuant to
Clause 60.17.3 shall be provided to the Settlement System
Administrator and to the Executive Committee.
60.17.7 The costs of any audit, test, review or check pursuant to
Clause 60.17.3 shall be borne by the Settlement System
Administrator which may recover the same through the
Accounting Procedure.
60.17.8 The Settlement System Administrator shall use reasonable
endeavors to procure that each Second Tier Agent shall
promptly and properly input data and other information as it
may receive pursuant to the terms of its appointment into its
Second Tier Computer Systems and shall review and validate
data and other information in accordance with the relevant
Agreed Procedures to establish the completeness thereof and to
identify any inconsistencies therein.
60.17.9 The Settlement System Administrator shall use reasonable
endeavors to procure that each Second Tier Agent shall keep
secure and confidential and not disclose, during the period of
its appointment or following its resignation or removal,
information, data and documentation obtained by the Second
Tier Agent in such capacity as to cause a breach by the
Settlement System Administrator of its obligations pursuant to
Clauses 68 or 69 of this Agreement.
60.17.10 The Settlement System Administrator shall use reasonable
endeavors to procure that upon the reasonable request of the
193
Settlement System Administrator and in any event upon the
removal or resignation of any Second Tier Agent, such Second
Tier Agent shall make over to the Settlement System
Administrator or its nominee all such records, manuals and
data and other information in the ownership or under the
control of the Second Tier Agent and relating to the
operation, and necessary for the proper functioning, of the
Second Tier Data Collection System.
60.18 Review:
(a) as soon as practicable after the third anniversary of the date
of this Agreement the Executive Committee, in consultation
with the Settlement System Administrator and the Director,
shall carry out a full review of the Second Tier Data
Collection System and, in consultation with the Director,
shall seek to agree with the Settlement System Administrator
(the agreement of the Settlement System Administrator not to
be unreasonably withheld or delayed) the manner by which the
costs of the Second Tier Data Collection System should be
recovered, in the Accounting Periods commencing on or after
1st April, 1994.
(b) if, and to the extent, deemed necessary by the Executive
Committee in consultation with the Settlement System
Administrator and the Director, the Executive Committee shall
conduct a further review of the Second Tier Data Collection
System and, in consultation with the Director, shall seek to
agree with the Settlement System Administrator (the agreement
of the Settlement System Administrator not to be unreasonably
withheld or delayed), the manner by which the Second Tier Data
Collection System should operate, and by which the costs of
the same should be recovered, in the Accounting Periods
commencing on or after 1st April, 1996 such review to commence
in due time to enable implementation of any changes to the
Second Tier Data Collection System on that date.
(c) The Executive Committee, in consultation with the Settlement
System Administrator and the Director, shall carry out a
further full review of the Second Tier Data Collection System
and, in consultation with the Director, shall seek to agree
with the Settlement system Administrator (the agreement of the
Settlement System Administrator not to be unreasonably
withheld or delayed), the manner by which the Second Tier Data
Collection System should operate, and by which the costs of
the same should be recovered, in the Accounting Periods
commencing on or after 1st April, 1998 such review to commence
in due time to
194
enable implementation of any changes to the Second Tier Data
Collection System on that date.
(d) In the event of an agreement within (a), () or, as the case
may be, (c) above, the provisions of this Agreement relating
to the Second Tier Data Collection System shall be amended
accordingly and, in the event of any failure to agree, the
matter shall be referred to arbitration pursuant to the
provisions of Clause 83. If such agreement has not been
reached or a determination has not been made or a settlement
not been reached under any such arbitration prior to:
(i) in the case of (a) above, the fourth anniversary of
the date of this Agreement;
(ii) in the case of (b) above (where applicable) by 1st
April, 1996; and
(iii) in the case of (c) above by 1st April, 1998,
the Settlement System Administrator shall, between
such date and the date on which agreement is reached
or (if applicable) a determination or settlement
under such arbitration is made or reached, recover
the costs, expenses and charges of the Second Tier
Data Collection System in accordance with the
provisions of Section 1.3.4 of Part D of Schedule 4.
60.19 Software for FMS:
The Settlement System Administrator shall develop and implement
appropriate computer software for the purposes of collecting and
aggregating data following the FMS Date.
60.20 Second Tier Unmetered Supplies:
60.20.1 Notwithstanding any of the other provisions of this Agreement,
including Clause 60 (other than the provisions of this Clause
60.20) and Schedule 21, the provisions of this Clause 60.20
and any Second Tier Unmetered Supplies Procedures shall, to
the extent they are supplemental to or conflict with any other
provisions of this Agreement, govern the rights and
obligations of the Parties (including each Operator and each
Meter Operator Party) in relation to Second Tier Unmetered
Supplies.
60.20.2 Neither this Clause 60.20 (save for the requirements set out
in this Clause 60.20.2 for the bringing into effect of this
Clause
195
60.20) nor the Second Tier Unmetered Supplies Procedures nor
any amendment, variation or replacement of either of them may
become effective:
(i) unless and until the Chief Executive shall have given
each Public Electricity Supplier, each Second Tier
Supplier, the Director (who may consult with such
persons as he considers appropriate) and the
Settlement System Administrator not less than 14
days' notice that this Clause 60.20 (or any
amendment, variation or replacement thereof) and/or
the Second Tier Unmetered Supplies Procedures are to
become effective, stating the date on which the same
are proposed to become effective and having attached
thereto a xxx of any proposed Second Tier Unmetered
Supplies Procedures; and
(ii) so long as none of the recipients of the notice
referred to in Clause 60.20.2(i) shall have given a
counternotice to the Chief Executive before the date
on which this Clause 60.20 and/or the Second Tier
Unmetered Supplies Procedures are to become effective
stating, on reasonable grounds, an objection to this
Clause 60.20 or the Second Tier Unmetered Supplies
Procedures becoming effective on the proposed date or
at all,
in the event that a counternotice shall have been
given in accordance with Clause 60.20.2(ii) the Chief
Executive shall, as soon as is reasonably
practicable, notify the persons referred to in Clause
60.20.2(i) of that fact.
60.20.3 Nothing in this Clause 60.20 shall permit the adoption, in the
Second Tier Unmetered Supplies Procedures or otherwise, of
standards of accuracy of data for Second Tier Unmetered
Supplies different from those which apply generally under this
Agreement other than during the transitional period expiring
on 31st March, 1995.
60.20.4 Except where the context otherwise requires, in this Clause
60.20:
"Second Tier Unmetered Supplies" means unmetered street
lighting and related supplies of a type which as at the date
this Clause 60.20 becomes effective are permitted to be made
by a Second Tier Supplier;
196
"Second Tier Unmetered Supplies Procedures" means the
procedures in respect of Second Tier Unmetered Supplies in the
form agreed between all Public Electricity Suppliers and the
Director (who may consult with such persons as he considers
appropriate) as the same may be amended, varied or replaced
from time to time with the agreement of such persons.
60.20.5 The Executive Committee may determine that Agreed Procedures
are necessary to implement this Clause 60.20 or the Second
Tier Unmetered Supplies Procedures and in such case nothing in
this Clause 60.20 or the Second Tier Unmetered Supplies
Procedures shall prejudice such determination or the adoption
or implementation of such Agreed Procedures, provided that any
such Agreed Procedure shall not include matters which would
occur on the Second Tier Customer's side of the outstation.
60.20.6 The Parties accept that modifications to the Settlement System
Administrator's rights and obligations under this Agreement
may be required under the Second Tier Unmetered Supplies
Procedures or otherwise before this Clause 60.20 can become
effective.
197
PART XVI
POOL CIVIL EMERGENCIES
61.1 DEFINITIONS
Definitions: in this Part XVI:
"Civil Emergency Pool Credit Facility" shall mean a credit facility to
be arranged by and for the use of Supplies upon terms and conditions to
be set out in Schedule 11 to this Agreement:
"Pool Civil Emergency" shall have the meaning ascribed to it in Clause
61.2.1;
"Pool Civil Emergency Period" shall mean a period initiated by the
Executive Committee after the occurrence of a Pool Civil Emergency
Event which shall commence, and terminate, in accordance with this
Part;
"Pool Rules Civil Emergency Condition" shall mean, in respect of any
Schedule Day, that both:
(i) UMT 0.1 (as determined in accordance with paragraph 32.1(a) of
Schedule 9); and
(ii) RAPT 3 * CAPT (as determined in accordance with paragraph
32.1(b) of Schedule 9);
"Pool Rules Civil Emergency Period" shall mean a period which
commences, and terminates, and in which Section 32.2 of Schedule 9 is
in force, in accordance with this Part; and
"Relevant Time" in relation to any event, means the time which falls
two hours prior to the first time at which an Availability Declaration
must be submitted pursuant to Section 6.1 of Schedule 9 on the first
Settlement Day which commences at least 24 hours after the occurrence
of such event.
61.2 APPLICATION AND STATEMENT OF INTENT
61.2.1 General Statement of Intended Application: it is intended that
this Part shall apply where there is in existence an event, or
series of events which does or do not generally occur as part
of normal market operating conditions and which affect(s) the
operation of the market for the generation, transmission
and/or supply of electricity in England and
198
Wales and which, as a result, cause(s) or is or are likely to
cause materially changed pool prices to arise and continue (a
"Pool Civil Emergency"). The following conditions set out in
this Part are intended to reflect the circumstances in which
it is envisaged that it would likely be the case that such
event or events shall have so occurred.
61.2.2 Interrelationship with Act: the Act and the Energy Act 1976
contain legislation conferring wide powers upon the Secretary
of State to regulate the generation, transmission and/or
supply of electricity in an emergency. It is intended that the
provisions of this Part shall coexist in application with such
legislation.
61.3 CONDITIONS FOR EXISTENCE OF A POOL CIVIL EMERGENCY
61.3.1 Determination of a Pool Civil Emergency: a Pool Civil
Emergency shall exist upon any resolution to that effect
passed by the Executive Committee in accordance with the
provisions of this Part whereafter, subject to the following
provisions of this Part, a Pool Civil Emergency Period shall
commence.
61.3.2 Conditions: the Executive Committee shall resolve that a Pool
Civil Emergency exists only if it has formed the opinion that
a Pool Civil Emergency Event has occurred. A Pool Civil
Emergency Event shall occur whenever:
(a) materially changed pool prices exist or are likely to
exist and, in either case, are likely to continue;
and
(b) such materially changed pool prices are the direct
result of any one or more of the following:
(i) a major failure affecting the operation of
the NGC Transmission System;
(ii) a major operational failure of one or more
Distribution Systems; or
(iii) an inability of any Generator to generate or
the loss of generating plant availability of
any Generator; and
199
(c) the event within (i), (ii), or as the case may be,
(iii) of (b) above has itself resulted from any one
or more of the following:
(i) any action taken by or on behalf of Her
Majesty's Government pursuant to and in
accordance with the emergency provisions set
out in Sections 1 to 4 of the Energy Act
1976 or Section 96 of the Act;
(ii) any act, order, regulation, direction or
directive, legislation or restraint of
Parliament or any governmental authority, or
agent or instrument of the foregoing;
(iii) any act of public enemy or terrorist, act of
war or hostilities (whether declared or
undeclared), threat of war or hostilities,
blockade, revolution, riot, insurrection,
civil commotion or unrest or demonstration;
(iv) any strike, lock-out or other industrial
action;
(v) any act of sabotage or vandalism;
(vi) lightning, earthquake, hurricane, storm,
fire, flood, drought, accumulation of snow
or ice, or any other extreme weather or
environmental condition; or
(vii) any other event provided that in such a case
any resolution of the Executive Committee
determining that a Pool Civil Emergency
exists must be carried by a majority of not
less than 75 percent of the total votes of
all Committee Members entitled to vote at a
meeting of the Executive Committee whether
or not present.
61.4 CONDITIONS FOR EXISTENCE OF A POOL RULES CIVIL EMERGENCY PERIOD
Pool Rules Civil Emergency Period: a Pool Rules Civil Emergency Period
shall, subject to the following provisions of this Part, commence as
part of a Pool Civil Emergency Period whenever (i) a Pool Civil
Emergency Period is
200
current and (ii) the Pool Rules Civil Emergency Condition is satisfied
and (iii) Section 28 of Schedule 9 hereof is not in effect.
61.5 PROCEDURE FOR INITIATION OF A POOL CIVIL EMERGENCY PERIOD AND
COMMENCEMENT OF A POOL RULES CIVIL EMERGENCY PERIOD
61.5.1 Right to requisition:
(a) Each Pool Member, the Settlement System
Administrator, the Grid Operator, the Director and
the Secretary of State shall have the several right
to have convened a special meeting of the Executive
Committee for it to consider whether a Pool Civil
Emergency exists (and accordingly whether a Pool
Civil Emergency Period is to commence).
(b) To requisition a meeting of the Executive Committee
the relevant Party, the Director or, as the case may
be, the Secretary of State shall notify in writing:
(i) in the case of a Pool Member, its appointed
Committee Member, the Pool Chairman or the
Chief Executive; and
(ii) in the case of the Settlement System
Administrator, the Grid Operator, the
Director or the Secretary of State, the Pool
Chairman or the Chief Executive,
that it wishes such a meeting to be convened giving
as full an explanation as it is able of the event or
events which it believes constitute(s) the relevant
Pool Civil Emergency Event.
(c) Upon receipt of a written requisition in accordance
with (b), the relevant Committee Member, the Pool
Chairman or, as the case may be, the Chief Executive
shall convene a special meeting of the Executive
Committee in accordance with Clause 18 to take place
within 48 hours after receipt of such requisition,
and the provisions relating to notice periods in
Clause 18 shall be varied for the purposes of this
Part accordingly.
201
61.5.2 Initiation by the Executive Committee:
Pool Civil Emergency Period: if the Executive Committee shall
resolve that a Pool Civil Emergency exists then, subject to
the right of veto in Clause 61.5.7 being exercised, a Pool
Civil Emergency Period shall commence upon the expiry of the
time limit for the exercise of such veto and shall continue
until terminated in accordance with Clause 61.7.
61.5.3 Pool Rules Civil Emergency Period:
(a) Commencement: a Pool Rules Civil Emergency Period
shall, subject to the right of veto in (b) below and
in Clause 61.5.7 being exercised, commence in
accordance with Clause 61.4 at the expiry of the
period for the exercise of the Executive Committee's
veto in (b) below and shall continue until terminated
in accordance with the provisions of Clause 61.7.
(b) Executive Committee's Right of Veto: the Executive
Committee shall have the right to veto the
commencement of a Pool Rules Civil Emergency Period
by the passing of a resolution to that effect carried
by a majority of not less than 65 percent of the
total votes of all Committee Members entitled to vote
at such meeting whether or not present, provided that
the Executive Committee shall only be able to
exercise such right of veto prior to the Relevant
Time relative to the time at which the Secretary
receives a notification given by the Settlement
System Administrator pursuant to Clause 61.5.4.
(c) Effect of Veto: where the Executive Committee
exercises its right of veto in accordance with (b)
above, the relevant Pool Rules Civil Emergency Period
shall not commence.
61.5.4 Settlement System Administrator's Notification: the Settlement
System Administrator shall notify forthwith by telephone (and
confirm in writing as soon as is practicable thereafter to)
the Chief Executive, Pool Chairman, Secretary, Director and
Secretary of State whenever it becomes aware that the Pool
Rules Civil Emergency Condition is satisfied.
202
61.5.5 Reasons: the Executive Committee shall give reasons for the
passing of any resolution pursuant to this Clause or the
exercising of any right of veto conferred on it by this
Clause, to be notified to the relevant parties by the
Secretary in accordance with Clause 61.5.6.
61.5.6 Notification (1): the Secretary shall notify in accordance
with Clause 75 all Parties, the Director and the Secretary of
State:
(a) of the result of any vote taken on a resolution of
the Executive Committee pursuant to this Part, giving
reasons in outline explaining such result,
immediately following the conclusion of the meeting
at which the vote was taken; such notification may be
given by telephone or by facsimile transmission. An
outline statement of reasons shall be circulated by
the Secretary to the same persons as soon as is
reasonably practicable thereafter; and
(b) where there has been no exercise within the time
limit provided therefor of a right of veto pursuant
to either Clause 61.5.3 by the Executive Committee or
Clause 61.5.7 by the Director or the Secretary of
State, notify all Parties, the Director and the
Secretary of State immediately of the commencement of
a Pool Rules Civil Emergency Period.
61.5.7 Right of Veto:
(a) Right of Veto: the Director and the Secretary of
State shall each have a several right to veto the
commencement of any Pool Civil Emergency Period or,
as the case may be, Pool Rules Civil Emergency Period
by giving written notice of an exercise of such right
of veto addressed to the Executive Committee, the
Pool Chairman and the Chief Executive within the time
periods specified below. To be validly given, such
notice shall specify in sufficient detail (in the
case of a Pool Civil Emergency Period) the relevant
resolution of the Executive Committee or (in the case
of a Pool Rules Civil Emergency Period) the relevant
notification of the Settlement System Administrator,
in respect of which the right of veto is being
exercised.
203
(b) Effect of veto: where the Director or the Secretary
of State exercises his veto in accordance with this
Clause 61.5.7, the relevant Pool Civil Emergency
Period or, as the case may be, Pool Rules Civil
Emergency Period shall not commence.
(c) Time Limits: any veto given by, or on behalf of,
either of the Director or Secretary of State must be
received by or on behalf of the Executive Committee:
(i) in respect of a resolution initiating a Pool
Civil Emergency Period, before the expiry of
a period of 48 hours commencing upon the
receipt by the Director or, as appropriate,
the Secretary of State, of the notification
of the result of the vote upon the relevant
resolution; or
(ii) in the case of a veto in respect of the
commencement of a Pool Rules Civil Emergency
Period, before the expiry of the time for
the exercise of the Executive Committee's
right of veto pursuant to 61.5.3.
For the avoidance of doubt, such veto may be given at any time
before the commencement of such period.
(d) Reasons: the Director shall upon exercising a right
of veto conferred by this Clause give reasons to the
Executive Committee supporting the exercise of that
right and the Parties would expect the Secretary of
State also to give reasons upon any exercise of his
right of veto conferred by this Xxxxxx.
(e) Notification (2): upon receipt by or on behalf of the
Executive Committee of a notice of exercise of veto
pursuant to this Clause, the Secretary, on behalf of
the Executive Committee, shall as soon as is possible
thereafter give notice in accordance with Clause 75
of the exercise of such veto.
204
61.6 EFFECT OF POOL AND POOL RULES CIVIL EMERGENCY PERIODS
61.6.1 Effect of a Pool Civil Emergency Period:
(a) Upon a determination that a Pool Civil Emergency
exists in accordance with 61.2.1 above:
(i) Suppliers shall be entitled during the Pool
Civil Emergency Period, for the purposes of
payments to be made by them pursuant to this
Agreement during such period, to utilize the
Civil Emergency Pool Credit Facility; and
(ii) Section 32.1 and 32.2 of the Pool Rules
shall enter into force and effect.
(b) The Pool Members expressly acknowledge the fact that
during the currency of any Pool Civil Emergency
Period Suppliers shall be entitled to operate credit
facilities in accordance with and subject to any
conditions of their respective Licenses (where
relevant).
61.6.2 Effect of a Pool Rules Civil Emergency Period: upon the
commencement of a Pool Rules Civil Emergency Period in
accordance with Clause 61.5.3(a), the provisions of Section
32.2 of Schedule 9 shall enter into full force and effect and
shall continue in full force and effect until such time as
that Pool Rules Civil Emergency Period is terminated in
accordance with Clause 61.7.
61.7 TERMINATION OF A POOL CIVIL EMERGENCY PERIOD
61.7.1 Director's determination of end of Pool Civil Emergency
Period: a Pool Civil Emergency Period and, where applicable,
any concurrent Pool Rules Civil Emergency Period, shall
terminate upon any determination of the Director to that
effect.
61.7.2 Consultation: the Director shall only determine that a Pool
Civil Emergency Period and, where applicable, any concurrent
Pool Rules Civil Emergency Period shall terminate after having
fully consulted and taken into consideration the views of all
relevant Parties and after having obtained the approval of the
Secretary of State.
205
61.7.3 Notification (3): the Director shall notify in writing the
Secretary, the Pool Chairman and the Chief Executive as soon
as is possible of any determination made pursuant to this
Clause 61.7 giving reasons for any determination so made and
the Secretary shall immediately notify all Parties of such
determination upon receipt.
61.7.4 Confirmation: the Director shall confirm to the Executive
Committee upon any determination pursuant to this Clause 61.7
that a Pool Civil Emergency Period shall terminate, that he
has taken full account of all relevant matters, the views of
such relevant Parties and has obtained the approval of the
Secretary of State.
61.7.5 Termination of a Pool Rules Civil Emergency Period within a
continuing Pool Civil Emergency Period:
(a) The Executive Committee may, by resolution carried by
a majority of not less than 65 percent of the total
votes of all Committee Members whether or not
present, terminate any current Pool Rules Civil
Emergency Period whenever it considers, in its
absolute discretion, that the continued application
of the modified Pool Rules as set out in Section 32.3
of Schedule 9 to be, in the circumstances, no longer
appropriate.
(b) The relevant Pool Rules Civil Emergency Period shall
terminate following the passing of that resolution at
the Relevant Time relative to the time at which that
resolution is passed.
(c) The Secretary, on behalf of the Executive Committee,
shall as soon as is possible after the passing of
such resolution give notice to all Parties, the
Director and the Secretary of State in accordance
with Clause 75 that the relevant Pool Rules Civil
Emergency Period is to so terminate.
(d) Whenever Section 28 of Schedule 9 enters into force
and effect, in accordance with this Agreement, any
Pool Rules Civil Emergency Period then current shall
terminate at the time that such Section so enters
into force and effect.
206
61.7.6 Effect of Termination:
(a) Pool Civil Emergency Period: upon the termination of
any Pool Civil Emergency Period the Civil Emergency
Pool Credit Facility shall forthwith cease to be
utilized and, where there is a concurrent Pool Rules
Civil Emergency Period, the provisions of Section 32
of Schedule 9, shall forthwith cease to be effective.
(b) Pool Rules Civil Emergency Period within a current
and continuing Pool Civil Emergency Period: upon the
termination of any Pool Rules Civil Emergency Period
within a current and continuing Pool Civil Emergency
Period the provisions of Section 32.3 of Schedule 9
shall forthwith cease to be effective.
61.8 REFERENCE TO DIRECTOR
61.8.1 Reference to the Director: if any dispute shall arise between
the Executive Committee and any Pool Member:
(a) as to whether the Executive Committee ought to have
concluded that the conditions for the initiation of a
Pool Civil Emergency Period in accordance with Clause
61.3.2 were satisfied either as a matter of fact or
such that there was a Pool Civil Emergency within the
spirit of the statement of intent set out at Clause
61.2.1; or
(b) as to whether the Executive Committee ought or ought
not to have exercised its right of veto pursuant to
Clause 61.5.3(b) in respect of the commencement of a
Pool Rules Civil Emergency Period; or
(c) as to whether a Pool Rules Civil Emergency Period
within a current and continuing Pool Civil Emergency
Period ought or ought not to have been terminated by
the Executive Committee in accordance with Clause
61.7.5 above,
the dispute may be referred by notice of the dispute given in
writing by the relevant Pool Member to the Director and as if
such Pool Member were exercising a Dissentient Pool Member's
right of appeal pursuant to Clause 13.5. The Director shall
determine the matter within 60 days of receipt of
207
such referral. Notice of any such referral shall be given to
the Executive Committee at the same time that the dispute is
so referred.
61.8.2 Content and Effect of Determination:
(a) If the Director shall determine in accordance with
61.8.1 that a Pool Civil Emergency Period or Pool
Rules Civil Emergency Period should commence, or a s
the case may be, resume, then:-
(i) in the case of a Pool Civil Emergency
Period, upon such determination having been
notified to the Secretary in accordance with
61.8.3, a Pool Civil Emergency Period shall
commence or, as the case may be, resume; and
(ii) in the case of a Pool Civil Emergency
Period, such period shall commence at the
Relevant Time relative to the time at which
such determination has been notified to the
Secretary in accordance with 61.8.3; or
(b) If the Director shall determine in accordance with
61.8.1 that a continuing Pool Civil Emergency Period
or Pool Rules Civil Emergency Period should
terminate, then:-
(i) in the case of a Pool Civil Emergency
Period, upon such determination having been
notified to the Secretary in accordance with
61.8.3, the then current Pool Civil
Emergency Period shall terminate; and
(ii) in the case of a Pool Rules Civil Emergency
Period, the then current such period shall
terminate at the Relevant Time relative to
the time at which such determination has
been notified to the Secretary in accordance
with 61.8.3.
61.8.3 Notification (4): the Director shall notify in writing the
Secretary, the Pool Chairman and the Chief Executive as soon
as is possible of any determination made pursuant to this
208
Clause 61.8 giving reasons for any determination so made and
the Secretary shall immediately notify all Parties of such
determination upon receipt.
61.9 MODIFICATION OF PROCEDURES
Modification of Procedures: neither the procedures for a poll set out
in Clause 22 nor the provisions of Clause 13.4 shall apply to any
resolution of the Executive Committee referred to in this Part XVI, and
there shall be no right of referral of the matter the subject of such
resolution to the Pool Members in general meeting.
209
PART XVII
TRADING SITE
62. TRADING SITE
Trading Site: the provisions of Schedule 17 shall have effect.
210
PART XVII
THE POOL FUNDS ADMINISTRATOR, BILLING AND SETTLEMENT
63. THE POOL FUNDS ADMINISTRATOR
63.1 Responsibilities: the Pool Funds Administrator shall have the following
duties, responsibilities and obligations, namely:-
63.1.1 to comply with all the obligations set out in this Agreement
and the Agreed Procedures in respect of the establishment,
maintenance and operation of the Funds Transfer System and to
carry out its obligations under the Funds Transfer Agreement;
63.1.2 to keep under review and to make recommendations to the
Executive Committee on its own initiative or whenever
requested by the Executive Committee concerning:-
(a) any change to the Funds Transfer System (or any part
or aspect thereof);
(b) the appointment of a new Pool Banker;
(c) any change to Schedule 11 or 15; and
(d) any change to the Funds Transfer Agreement,
which the Pool Funds Administrator may consider desirable. In
making such recommendations, the Pool Funds Administrator
shall have regard to, and shall provide details of, the cost
of implementing such changes (which cost would be charged or
recharged to Pool Members) and shall recommend whether, in
light of those costs, certain parties or categories of party
to the Agreement should be exempted from such changes or
whether special provisions for such parties or categories of
party should be adopted;
63.1.3 (a) to maintain such records, data and other information
as the Pool Auditor may, after consultation with the
Executive Committee, from time to time by notice in
writing and in reasonable detail to the Pool Funds
Administrator, require for the purposes of Part IX,or
as may otherwise be reasonably necessary to enable
the Pool Funds Administrator to comply promptly and
fully with all its obligations under this Agreement,
the Agreed Procedures or the Funds Transfer
211
Agreement, in either such case in such form as the
Pool Auditor may from time to time by notice to the
Pool Funds Administrator require or (in the absence
of such notification) in such form as a reasonably
prudent operator of the Funds Transfer System would
adopt; and
(b) to maintain such records, data and other information
as H.M. Customs and Excise may from time to time
require of the Pool Funds Administrator;
63.1.4 to retain in machine readable form or hard copy form for a
period of not less than eight years (or such longer period as
any applicable law may require) and in any event in hard copy
form (which for these purposes shall include microfiche) for a
period of not less than one year copies of the records, data
and other information received and processed by the Pool Funds
Administrator in connection with its performance of the
Services including:-
(a) (to the extent relevant for the performance of the
Services) Settlement Runs and Settlement Re-runs;
(b) Advice Notes and Confirmation Notices;
(c) bank statements in respect of the Pool Accounts;
(d) Pool Ledger Accounts;
(e) Payments Calendars;
(f) a record of all Default Interest Rates and Reserve
Interest Rates calculated from time to time
(including the period to which each interest rate
relates);
(g) details of Security Cover supplied and to be supplied
by each Supplier; and
(h) correspondence between the Pool Funds Administrator,
on the one hand, and the Executive Committee, the
Pool Chairman, the Chief Executive, any Pool Member,
the Pool Banker, any Collection Bank, the Settlement
System Administrator, the Ancillary Services
Provider, the Director, the Pool Auditor, the Grid
Operator and any other relevant bank of institution,
on the other hand;
212
63.1.5 to provide to the Executive Committee and the Chief Executive
upon request records, data and other information concerning
the Funds Transfer System (and any part thereof) (unless
disclosure would breach any duty of confidentiality imposed on
the Pool Funds Administrator) and which the Pool Funds
Administrator is required to retain under paragraph 63.1.3 or
63.1.4 (and each of the Parties agrees to the release of all
such records, data and other information in the circumstances
and manner described in this paragraph 63.1.5);
63.1.6 to provide to the Pool Auditor upon request records, data and
other information concerning the Funds Transfer System (and
any part thereof) and which the Pool Funds Administrator is
required to maintain and retain under paragraph 63.1.3 or
63.1.4 (and each of the Parties agrees to the release of all
such records, data and other information in the circumstances
and manner described in this paragraph 63.1.6);
63.1.7 subject to the provisions of Part XX, to provide a certified
copy of such records, data and other information concerning
the Funds Transfer System (and any part thereof) and amounts
payable by or to any Pool Member or the Ancillary Services
Provider as the relevant Pool Member or (as the case may be)
the Ancillary Services Provider may reasonably request for the
purpose of establishing the amounts which are owed to or by
such Pool Member or the Ancillary Services Provider in
accordance with this Agreement, and in any event such
information as any Pool Member or the Ancillary Services
Provider may request from the Pool Funds Administrator in
order to establish or prove a claim to any amounts due or
claimed to be due. The Pool Funds Administrator shall
forthwith upon such request provide such information upon
delivery (if so required by the Pool Funds Administrator) of a
certificate from the counsel of such Pool Member or the
Ancillary Services Provider certifying that, in such counsel's
opinion, such information is required for such purpose;
63.1.8 to issue Advice Notes and Confirmation Notices within the
times and containing the details required by Schedule 11;
63.1.9 upon request, promptly to supply on its own behalf and on
behalf of Pool Members and the Ancillary Services Provider
(with a copy to the Pool Member concerned and the Ancillary
Services Provider) any information (including copies of
documents) to H.M. Customs and Excise, and to co-operate in
any investigation by H.M. Customs and Excise or H.M. Inspector
of Taxes relating to the Funds Transfer System (or any part or
aspect thereof);
213
63.1.10 in respect of each calendar quarter, to issue to all Pool
Members, the Executive Committee, the Chief Executive, the
Settlement System Administrator and the Ancillary Services
Provider no later than the fifth Business Day after each
calendar quarter a statement enabling the identification of
who may constitute Majority Default Calling Creditors during
that calendar quarter (and the Parties hereby agree to such
disclosure being made);
63.1.11 except in respect of moneys received on account of the PFA
Operating Costs, the PFA Handling Charge, the Annual Fee or
Bank Charges in accordance with the accounting procedure set
out in Schedule 15 or the consideration received pursuant to
sub-section 5.1 or 5.2 of that Schedule, to pay all moneys
received by it from a Pool Member or the Ancillary Services
Provider in accordance with Schedule 11 into a pool Account to
be held in trust in accordance with the provisions of Schedule
11; and
63.1.12 to comply with all its other obligations under this Agreement
(including Schedules 11 and 15) and the Agreed Procedures,
and expression defined in Schedules 11 and 15 shall have the same
respective meanings when used in this Clause 63.1.
63.2 Standard of care: in the exercise of its duties and responsibilities
under this Agreement and the agreed Procedures the Pool Funds
Administrator shall exercise that degree of care, diligence, skill and
judgment which would ordinarily be expected of a reasonably prudent
operator of the Funds Transfer System taking into account the
circumstances actually known to the Pool Funds Administrator, its
officers and employees at the relevant time or which ought to have been
known to it or them had it or they made such inquiries as were
reasonable in the circumstances. In particular, but without prejudice
to the generality of the foregoing, in the absence of directions and
instructions given to it by the Executive Committee under this
Agreement and having due regard to the resources available to it, the
Pool Funds Administrator shall at all times conduct itself in a manner
calculated to achieve the principal objects and purpose of this
Agreement set out in Clauses 4.1.2 and 4.1.3.
63.3 UK value added tax indemnity:
63.3.1 Indemnity (1): without prejudice to paragraph 63.3.2 all Pool
Members shall jointly and severally indemnify and keep
indemnified the Pool Funds Administrator, its officers,
employees and agents (and, as between the Pool Members,
according to their respective Contributory Shares at the time
of receipt of the request for indemnification, calculated on
the basis that the points allocated to the Pool Member in
214
default are disregarded) against any liability which the Pool
Funds Administrator may incur as a result of the failure of
any Pool Member or the Ancillary Services Provider (as the
case may be) properly to account to H.M. Customs and Excise
for all amounts of United Kingdom Value Added Tax payable or
receivable by it in respect of any supplies of electricity or
Ancillary Services.
63.3.2 Indemnity (2): if any Pool Member or the Ancillary Services
Provider shall fail properly to account for any amount of
United Kingdom Value Added Tax payable or receivable by it,
that person shall indemnify and keep indemnified each Pool
Member (on an after tax basis, but taking account of any tax
relief available to the relevant Pool Member) against any
liability which such Pool Member shall incur pursuant to
paragraph 63.2.1.
63.4 Schedule 15:
63.4.1 subject to the rights of each of the Parties under this
Agreement, all Parties hereby agree promptly to execute and
deliver all agreements and other documentation necessary to
give effect to any act, matter or thing done by the Executive
Committee in accordance with Schedule 15 (including the
removal of the incumbent Pool Funds Administrator and the
appointment of a successor in accordance with the terms
thereof).
63.4.2. Schedule 15 provides that certain matters may be referred by
the Executive Committee to arbitration pursuant to Clause 83.
In making any such reference or in alleging that any such
reference is being made pursuant to Clause 83 the Executive
Committee shall act (and is hereby irrevocably authorized by
each of the Pool Members to act) as the sole and exclusive
representative of all the Pool Members and the Pool Funds
Administrator hereby agrees that the Executive Committee shall
have the authority so to act.
63.4 Schedule 15:
63.4.1 subject to the rights of each of the Parties under this
Agreement, all Parties hereby agree promptly to documentation
necessary to give effect to any act, accordance with Schedule
15 (including the removal of the incumbent Pool Funds
Administrator and the appointment of a successor in accordance
with the terms thereof).
63.4.2 Schedule 15 provides that certain matters may be referred by
the Executive Committee to arbitration pursuant to Clause 83.
In making any such reference or in alleging that any such
reference is being made
215
pursuant to Clause 83 the Executive Committee shall act (and
is hereby irrevocably authorized by each of the Pool Member to
act) as the sole and exclusive representative of all the Pool
Members and the Pool Funds Administrator hereby agrees that
the Executive Committee shall have the authority so to act.
64. PROCEDURES MANUAL
64.1 Preparation: within 28 days after the Effective Date (or such longer
period as the Executive Committee may approve) the Pool Funds
Administrator shall prepare, or cause to be prepared, a Procedures
Manual which is shall submit to the Executive Committee for its review.
The Executive Committee shall give its comments on the Procedures
Manual to the Pool Funds Administrator within 28 days after receipt
thereof and the Pool Funds Administrator shall revise, or cause to be
revised, the Procedures Manual to the satisfaction of the Executive
Committee within 21 days after receipt of such comments (or such longer
period as the Executive Committee may approve). Promptly thereafter the
Pool Funds Administrator shall provide the Executive Committee with
sufficient copies of the revised Procedures Manual for distribution by
the Executive Committee to all Parties, the Pool Auditor, the Pool
Banker and the Director.
64.2 Amendments: where from time to time any amendments to the Procedures
Manual are necessary to reflect changes in the systems and/or
procedures associated with the Funds Transfer System, the procedure set
out in Clause 64.1 shall apply mutatis mutandis.
64.3 Costs: the costs of producing, revising and amending the Procedures
Manual shall be borne by the Pool Funds Administrator and recovered by
it in accordance with the provisions of Schedule 11 as part of its
charges.
65. BILLING AND SETTLEMENT
The provisions of Schedule 11 shall have effect.
216
PART XIX
DEFAULT, TERM AND TERMINATION
66. DEFAULT
66.1 Default (1): at any time after the occurrence of any of the events
referred to in Clause 66.3.1, 66.3.2 or 66.3.3 and so long as such
event continues unremedies or unwaived by Majority Default Calling
Creditors:-
66.1.1 Majority Default Calling Creditors may, upon reaching a bona
fide conclusion that the reason for the failure by the
Defaulting Pool Member under Clause 66.3.1, 66.3.2 or 66.3.3
is other than administrative or banking error (having taken
into account the representations, if any, of the Defaulting
Pool Member made within 24 hours after request therefor is
made to the Defaulting Pool Member on behalf of the Majority
Default Calling Creditors, which request Majority Default
Calling Creditors shall be obliged to make), by notice to the
Defaulting Pool Member (copied to the Executive Committee and
the Director) declare such even an Event of Default;
66.1.2 at the same time as Majority Default Calling Creditors declare
such an Event of Default or at any time thereafter, Majority
Default Calling Creditors may by notice to the Executive
Committee (copied to the Defaulting Pool Member and the
Director) require the Executive Committee to suspend (which
the Executive Committee shall forthwith do) all voting rights
of the Defaulting Pool Member under this Agreement for a
specified period (being not more than 90 days) and, upon the
Executive Committee giving notice to such effect to the
Defaulting Pool Member (copied to the Director), such voting
rights (but not any other rights or any liabilities or
obligations of the Defaulting Pool Member) shall be suspended
for such period; and
66.1.3 where:-
(a) the Defaulting Pool Member is a Public Electricity
Supplier, no earlier than 28 days after the date of
the notice referred to in Clause 66.1.1.; and
(b) in any other case, at the same time as Majority
Default Calling Creditors declare such an Event of
Default or at any time thereafter,
217
Majority Default Calling Creditors may by notice to
Defaulting Pool Member (copied to the Executive
Committee, the Settlement System Administrator, the
Grid Operator, the Pool Funds Administrator the
Ancillary Services Provider and the Director) require
the Defaulting Pool Member to cease to be a Party
with effect from the date of its De-energisation and
until such date all voting rights of the Defaulting
Pool Member under this Agreement (but not any other
rights or any liabilities or obligations of the
Defaulting Pool Member) shall be automatically
suspended.
For the avoidance of doubt, Majority Default Calling Creditors
shall be at liberty to give notice under Clause 66.1.2 and,
upon expiry of the specified period referred to therein and
subject as provided in the foregoing provisions of this Clause
66.1, to give notice under Clause 66.1.3.
66.2 Default (2): at any time after the occurrence of any of the events
referred to in Clause 66.3 (other than (a) any of the events referred
to in Clause 66.3.1, 66.3.2 and 66.3.3 and (b) in the case where the
Defaulting Pool Member is unable to pay its debts as referred to in
Clause 66.3.6(a), unless any of the other events referred to in Clause
66.3 has occurred and is continuing) and so long as such event
continues unremedied or unwaived by the Pool Members in general meeting
the Executive Committee may (and shall if so directed by the Pool
Members in general meeting):-
66.2.1 by notice to the Defaulting Pool Member (copied to the
Director) declare such event and Event of Default and suspend
all voting rights of the Defaulting Pool Member under this
Agreement for a specified period (being not more than 90 days)
whereupon such voting rights (but not any other rights or any
liabilities or obligations of the Defaulting Pool Member)
shall be suspended for such period; and
66.2.2 upon the expiry of such period by notice to the Defaulting
Pool Member (copied to the Settlement System Administrator,
the Grid Operator, the Pool Funds Administrator, the Ancillary
Services Provider and the Director) require the Defaulting
Pool Member to cease to be a party to this Agreement with
effect from the date of its De-energisation and until such
date all voting rights of the Defaulting Pool Member under
this Agreement (but not any other rights or any liabilities or
obligations of the Defaulting Pool Member) shall be
automatically suspended.
66.3 Events of Default: the event referred to in the foregoing provisions of
this Clause 66 are:-
218
66.3.1 the Pool Member in question (the "Defaulting Pool Member")
shall fail to provide or maintain or renew in accordance with
Schedule 11 the requisite amount of Security Cover determined
pursuant to that Schedule; or
66.3.2 the Defaulting Pool Member shall fail to pay in the manner
provided in this Agreement any sum payable by it to any Pool
Creditor within three Business Days after its due date; or
66.3.3 the Defaulting Pool Member shall fail to pay in the manner
provided in this Agreement any sum payable by it hereunder to
the Settlement System Administrator or the Pool Funds
Administrator within 28 days after the Settlement System
Administrator or (as the case may be) the Pool Funds
Administrator has given notice to it (copied to the Executive
Committee and the Director) that payment has not been received
and requiring such default to be remedied; or
66.3.4 the Defaulting Pool Member shall fail to pay in the manner
provided in this Agreement any sum payable by it hereunder to
the Executive Committee within 28 days after the Executive
Committee has given notice to it (copied to the Director) that
payment has not been received and requiring such default to be
remedied; or
66.3.5 the Defaulting Pool Member shall fail in any material respect
to perform or comply with any of its other obligations under
this Agreement and such default (if it is capable of remedy)
is not remedied within a reasonable period of time (not
exceeding 90 days) after the Executive Committee has given
notice to the Defaulting Pool Member (copied to the Director)
of the occurrence thereof and requiring the same to be
remedied; or
66.3.6 the Defaulting Pool Member:-
(a) is unable to pay its debts (within the meaning of
section 123(1) or (2) of the Insolvency Act 1986, but
subject as hereinafter provided in this Clause
66.3.5) or if any voluntary agreement is proposed in
relation to it under section 1 of that Act or enters
into any scheme of arrangement (other than for the
purpose of reconstruction or amalgamation upon terms
and within such period as may previously have been
approved in writing by the Executive Committee);
(b) has a receiver (which expression shall include an
administrative receiver within the meaning of section
29 of the
219
Insolvency Act 1986) of the whole or any material
part of its assets or undertaking appointed;
(c) has an administration order under section 8 of the
Insolvency Act 1986 made in relation to it;
(d) passes any resolution for winding-up other than a
resolution previously approved in writing by the
Executive Committee; or
(e) becomes subject to an order by the High Court for
winding-up.
For the purposes of paragraph (a) above section 123(1)(a) of
the Insolvency Act 1986 shall have effect as if the
"(pound)750" there was substituted (pound)10,000 and, further,
the Defaulting Pool Member shall not be deemed to be unable to
pay its debts for the purposes of paragraph (a) above it any
such demand as is mentioned in the said section is being
contested in good faith by the Defaulting Pool Member with
recourse to all appropriate measures and procedures; or
66.3.7 the License (if any) granted to the Defaulting Pool Member is
determined or revoked or otherwise ceases to be in force for
any reason whatsoever,
in any such case for whatever reason and whether reason and whether or
not within the control of the Defaulting Pool Member.
66.4 De-energisation:
66.4.1 if the Majority Default Calling Creditors shall give notice to
a Defaulting Pool Member under Clause 66.1.3 or the Executive
Committee shall give notice to a Defaulting Pool Member under
Clause 66.2.2 the Defaulting Pool Member shall forthwith, and
in compliance with the instructions of the Grid Operator or
(in the case of any connection to a User whose System it is
(the "Relevant User"), take all such action as may be
necessary to give effect to the relevant De-energisation.
66.4.2 If the Defaulting Pool Member shall fail to take such action
as is referred to in Clause 66.4.1 within 48 hours after the
date of any such notice referred to therein, the Grid Operator
and/or, as the case may be, the Relevant User undertakes to
each of the other Parties and the Executive Committee to use
reasonable endeavors to effect or (as the case may be) give
instructions to effect such De-energisation as quickly
220
as practicable having regard to all the circumstances
affecting such De-energisation (including any operational
difficulties and relevant License duties).
66.4.3 Each Pool Member hereby irrevocably and unconditionally
consents to its De-energisation by the Grid Operator and/or,
as the case may be, the Relevant User in the circumstances set
out in Clause 66.4.2.
66.5 Sharing of risk: where an Event of Default is declared under Clause
66.1.1 or 66.2.1 in respect of a Defaulting Pool Member which is a
Public Electricity Supplier, then for the period beginning on the date
of the notice declaring such Event of Default until the earlier of:-
66.5.1 the date falling 28 days thereafter; and
66.5.2 the date on which the Event of Default has been remedied or
waived by Majority Default Calling Creditors or (as the case
may be) the Pool Members in general meeting,
(but not further or otherwise) each Pool Member (other than the
Defaulting Pool Member) shall be severally liable for its Contributory
Share (calculated on the basis that the Points allocated to the
Defaulting Pool Member and Ancillary Services during each complete
Settlement Day falling within such period and which are not paid on the
due date therefor by the Defaulting Pool Member. The Defaulting Pool
Member shall indemnify and keep indemnified each Pool Member on demand
against all sums properly paid by such Pool Member pursuant to this
Clause 66.5 together with interest thereon from the date of payment by
such Pool Member to the date of its reimbursement (as well after as
before judgment) at the Default Interest Rate.
66.6 Indemnity on De-energisation: where under Clause 66.4 the Grid Operator
and/or the Relevant User is required to effect or (as the case may be)
give instructions to effect a De-energisation the Defaulting Pool
Member, failing which, each Pool Member (but, in the case of each Pool
Member, only in respect of its Contributory Share at the time of
receipt of the request for indemnification, calculated on the basis
that the Points allocated to the Defaulting Pool Member are
disregarded) shall indemnify and keep indemnified the Grid Operator
and/or the Relevant User (as the case may be) on demand against any and
all liability, loss or damage which it may suffer or incur by reason of
effecting or giving instructions to effect such De-energisation.
66.7 Accrued rights and liabilities:
66.7.1 the suspension of a person as a Pool Member and the cessation
of a person as a Pool Member and/or a Party for whatever
reason shall not prejudice its accrued rights and liabilities
under this Agreement as at
221
the date of its suspension or (as the case may be) cessation
or its rights and liabilities under this Agreement which may
accrue in relation to the period during which it was not so
suspended or (as the case may be) it was a Party or any of its
obligations under this Agreement which are expressed to
continue notwithstanding such suspension or cessation.
66.7.2 Without prejudice to the generality of Clause 66.7.1, a
Defaulting Pool Member shall be liable for all sums (including
United Kingdom Value Added Tax) which it is required under
this Agreement to pay in respect of electricity taken by it
and Ancillary Services pending its De-energisation pursuant to
Clause 66.4.
67. TERM AND TERMINATION
67.1 Term: this Agreement shall have no fixed duration.
67.2 Suspension of Pool Member's voting rights: a Pool Member's voting
rights shall be suspended only in the circumstances and to the extent
specified in Clauses 66.1.2 and 66.2.1.
67.3 Termination as a Party: a Pool Member shall cease to be a Party only:-
67.3.1 in the circumstances and to the extent specified in Clauses
8.7 to 8.10 (inclusive);
67.3.2 in the circumstances and to the extent specified in Clauses
66.1.3 and 66.2.2; or
67.3.3 if, by unanimous resolution of all Committee Members, the
Executive Committee shall so reasonably determine and the
prior written consent of the Director shall have been
obtained.
67.4 Termination of the Agreement:
67.4.1 this Agreement may be terminated if a resolution of Pool
Members in general meeting is unanimously carried by those
Pool Members present in person or by proxy at the relevant
general meeting and the prior written consent of the Director
has been obtained.
67.4.2 The termination shall take effect from whichever is the later
in time of the date of the resolution referred to in Clause
67.4.1 and the consent in writing of the Director referred to
in that Clause.
222
67.5 Xxxxxx exhaustive: the Pool Members agree that the foregoing
provisions of this Clause 67, when read with the Clauses
referred to herein and Clause 8.11, are exhaustive of the
rights of suspension of a Pool Member's voting rights, of
termination of Pool Membership, of cessation as a Party and of
termination of this Agreement.
223
PART XX
CONFIDENTIALITY
66. DEFINITIONS AND INTERPRETATION
66.1 Definitions: in this Part XX, except where the context otherwise
requires:-
"Authorised Recipient" means, in relation to any Protected Information,
any Business Person who, before the Protected Information had been
divulged to him by NGC or any subsidiary of NGC, had been informed of
the nature and effect of Clause 69 and who requires access to such
Protected Information for the proper performance of his duties as a
Business Person in the course of Permitted Activities;
"Business Person" means any person who is a Main Business Person or a
Corporate Functions Person, and "Business Personnel" shall be construed
accordingly;
"Confidential Information" means all data and other information
supplied to the Obligor or any nominee of the Obligor appointed
pursuant to paragraph 10 of Appendix 4 of Schedule 9 by another Party
under the provisions of this Agreement, and shall include copies of the
load modules referred to in Clause 42.5;
"Corporate Functions Person" means any person who:-
(a) is a director of NGC; or
(b) is an employee of NGC or any of its subsidiaries carrying out
any administrative, finance or other corporate services of any
kind which in part relate to the Main Business; or
(c) is engaged as an agent of or an adviser to or performs work in
relation to or services for the Main Business;
"Generation Business" has the same meaning as in the NGC Transmission
License;
"Main Business" means any business of NGC or any of its subsidiaries as
at the Effective Date or which it is required to carry on under the NGC
Transmission License, other than the Generation Business;
"Main Business Person" means any employee of NGC or any director or
employee of its subsidiaries who is engaged solely in the Main
Business, and "Main Business Personnel" shall be construed accordingly;
"Obligor" has the meaning given that expression in Clause 70.1;
224
"Permitted Activities" means activities carried on for the purposes of
the Main Business; and
"Protected Information" means any information relating to the affairs
of a Party which is furnished to Business Personnel pursuant to this
Agreement unless, prior to such information being furnished, such Party
has informed the recipient thereof by notice in writing or by
endorsement on such information that the said information is not to be
regarded as Protected Information.
68.2 Interpretation: for the avoidance of doubt, data and other information
which any Party is permitted or obliged to divulge or publish to any
other Party pursuant to this Agreement shall not necessarily be
regarded as being in the public domain by reason of being so divulged
or published.
69. CONFIDENTIALITY FOR NGC AND ITS SUBSIDIARIES
69.1 Protection of Protected Information: NGC and its subsidiaries in each
of their capacities in this Agreement shall secure that Protected
Information is not:-
69.1.1 divulged by Business Personnel to any person unless that
person is an Authorised Recipient;
69.1.2 used by Business Personnel for the purposes of obtaining for
NGC or any of its subsidiaries or for any other person:-
(a) any electricity license; or
(b) any right to purchase or otherwise acquire, or to
distribute, electricity (including rights under any
electricity purchase contract, as defined in the NGC
Transmission License); or
(c) any contract or arrangement for the supply of
electricity to Customers or Suppliers; or
(d) any contract for the use of any electrical lines or
electrical plant belonging to or under the control of
a Supplier; or
(e) control of any body corporate which, whether directly
or indirectly, has the benefit of any such license,
contract or arrangement; and
69.1.3 used by Business Personnel for the purpose of carrying on any
activities other than Permitted Activities
225
except with the prior consent in writing of the Party to whose
affairs such Protected Information relates.
69.2 Exceptions: nothing in this Clause 69 shall apply:-
69.2.1 to any Protected Information which, before it is furnished to
Business Personnel, is in the public domain; or
69.2.2 to any Protected Information which, after it is furnished to
Business Personnel:-
(a) is acquired by NGC or any subsidiary of NGC in
circumstances in which this Clause 69 does not apply;
or
(b) is acquired by NGC or any subsidiary of NGC in
circumstances in which this Clause 69 does apply and
thereafter ceases to be subject to the restrictions
imposed by this Clause 69; or
(c) enters the public domain,
and in any such case otherwise than as a result of (i) a
breach by NGC or any subsidiary of NGC of its obligations in
this Clause 69 or (ii) a breach by the person who disclosed
that Protected Information of that person's confidentiality
obligation and NGC or any of its subsidiaries is aware of such
breach; or
69.2.3 to the disclosure of any Protected Information to any person
if NGC or any subsidiary of NGC is required or expressly
permitted to make such disclosure to such person:-
(a) in compliance with the duties of NGC or any
subsidiary of NGC under the Act or any other
requirement of a Competent Authority; or
(b) in compliance with the conditions of the NGC
Transmission License or any document referred to in
the NGC Transmission License with which NGC or any
subsidiary of NGC is required by virtue of the Act or
the NGC Transmission License to comply; or
(c) in compliance with any other requirement of law; or
226
(d) in response to a requirement of any stock exchange or
regulatory authority or the Panel on Take-overs and
Mergers; or
(e) pursuant to the arbitration rules for the Electricity
Arbitration Association or pursuant to any judicial
or other arbitral process or tribunal having
jurisdiction in relation to NGC or its subsidiaries;
or
69.2.4 to any Protected Information to the extent that NGC or any of
its subsidiaries is expressly permitted or required to
disclose that information under the terms of any agreement or
arrangement (including this Agreement, the Grid Code, the
Distribution Codes and the Fuel Security Code) with the Party
to whose affairs such Protected Information relates; or
69.2.5 to any Protected Information but only to the extent that it
has been properly provided to NGC or any subsidiary of NGC by
the Settlement System Administrator pursuant to any provision
of the Pool Rules.
69.3 Use of information by NGC: NGC and each of its subsidiaries may use al
and any information or data supplied to or acquired by it from or in
relation to the Parties in performing Permitted Activities including,
for the following purposes:-
69.3.1 the operation and planning of the NGC Transmission System;
69.3.2 the calculation of charges and preparation of offers of terms
for connection to or use of the NGC Transmission Systems;
69.3.3 the operation and planning of the Ancillary Services Business
and the calculation of charges therefor;
69.3.4 the operation of the Settlements Business;
69.3.5 the provision of information under the British Grid Systems
Agreement and the EdF Documents,
and may pass the same to subsidiaries of NGC which carry out such
activities and the Parties agree to provide all information to NGC and
its subsidiaries for such purposes.
69.4 Restrictions on Business Personnel: NGC undertakes to each of the other
Parties that, having regard to the activities in which any business
person is engaged and the nature
227
and effective life of the Protected Information divulged to him by
virtue of such activities, neither NGC nor any of its subsidiaries
shall unreasonably continue (taking into account any industrial
relations concerns reasonably held by it) to divulge Protected
Information or permit Protected Information to be divulged by any
subsidiary of NGC to any Business Person:-
69.4.1 who has notified NGC or the relevant subsidiary of his
intention to become engaged as an employee or agent of any
other person (either than of NGC or any subsidiary thereof)
who is:-
(a) authorised by license or exemption to generate,
transmit or supply electricity; or
(b) an electricity broker or who is known to be engaged
in the writing of electricity purchase contracts (as
hereinbefore defined); or
(c) known to be retained as a consultant to any such
person who is referred to in paragraph (a) or (b)
above; or
69.4.2 who is to be transferred to the Generation Business,
save where NGC or such subsidiary could not, in all the circumstances,
reasonably be expected to refrain from divulging to such Business
Person Protected Information which is required for the proper
performance of his duties.
69.5 Identification of Protected Information: without prejudice to the other
provisions of this Clause 69, NGC shall procure that any additional
copies made of the Protected Information, whether in hard copy or
computerised form, will clearly identify the Protected Information as
protected.
69.5 Identification of Protected Information: without prejudice to the other
provisions of this Clause 69, NGC shall procure that any additional
copies made of the Protected Information, whether in hard copy or
computerised form, will clearly identify the Protected Information as
protected.
69.6 Corporate Functions Person: NGC undertakes to use all reasonable
endeavours to procure that no employee is a Corporate Functions Person
unless the same is necessary for the proper performance of his duties.
69.7 Charge restriction condition variable: without prejudice to Clause
69.3, NGC and each of its subsidiaries may use and pass to each other
all and any Period Metered Demand data supplied to or acquired by it
and all and any information and data supplied to it pursuant to Section
OC6 of the Grid Code for the purposes of Demand
228
Control (as defined in the Grid Code), but in each case only for the
purposes of its estimation and calculation from time to time of the
variable "system maximum ACS demand" (as defined in Condition 4 of the
NGC Transmission License).
69.8 Ancillary Services: NGC shall secure that Protected Information which
is subject to the provisions of Clause 69.1 and which relates to the
cost of Reactive Power provided by each individual Generator is not
divulged to any Business Person engaged in the provision of static
compensation for use by the Grid Operator.
69.9 Metering data - Distribution System: any information regarding, or data
acquired by the Settlement Administrator or its agent from, Metering
Equipment at Sites which are a point of connection to a Distribution
System shall and may be passed by the Settlement System Administrator
or his agent to the operator of the relevant Distribution System. The
said operator of the relevant Distribution System may use the same only
for the purposes of the operation of such Distribution System and the
calculation of charges for use of and connection to such Distribution
System.
69.10 Metering data - Qualifying Arrangements: the Settlement System
Administrator and the Grid Operator shall and may pass any relevant
information and data relating to the Genset Metered Generation
(including, for the avoidance of doubt, all relevant Metered Data, as
defined in paragraph 3.1.2 of Schedule 9) of any of the Generating
Units which are the subject of qualifying arrangements (as defined in
section 33 of the Act) to such persons as may be specified from time to
time pursuant to such qualifying arrangements.
70. CONFIDENTIALITY OTHER THAN FOR NGC AND ITS SUBSIDIARIES
70.1 General obligation: each party (other than NGC and its subsidiaries)
(the "Obligor") hereby undertakes with each other Party (including NGC
and its subsidiaries that it shall preserve the confidentiality of, and
not directly or indirectly reveal, report, publish, disclose or
transfer or use for its own purposes Confidential Information except:-
70.1.1 in the circumstances set out in Clause 70.2; or
70.1.2 to the extent otherwise expressly permitted by this Agreement;
or
70.1.3 with the prior consent in writing of the Party to whose
affairs such Confidential Information relates; or
70.1.4 to the extent that it has been properly provided to the
Obligor by the Settlement System Administrator pursuant to any
provision of the Pool Rules.
229
70.2 Exceptions: the circumstances referred to in Clause 70.1.1 are:-
70.2.1 where the Confidential Information, before it is furnished to
the Obligor, is in the public domain; or
70.2.2 where the Confidential Information, after it is furnished to
the Obligor:-
(a) is acquired by the Obligor in circumstances in which
this Clause 70 does not apply; or
(b) is acquired by the Obligor in circumstances in which
this Clause 70 does apply and thereafter ceases to be
subject to the restrictions imposed by this Clause
70; or
(c) enters the public domain,
and in any such case otherwise than as a result of (i) a
breach by the Obligor of its obligations in this Clause 70 or
(ii) a breach by the person who disclosed that Confidential
Information of that person's confidentiality obligation and
the Obligor is aware of such breach; or
70.2.3 if the Obligor is required or permitted to make disclosure of
the Confidential Information to any person:-
(a) in compliance with the duties of the Obligor under
the Act or any other requirement of a Competent
Authority; or
(b) in compliance with the conditions of any Licence or
any document referred to in any Licence with which
the Obligor is required to comply; or
(c) in compliance with any other requirement of law; or
(d) in response to a requirement of any stock exchange or
regulatory authority or the Panel on Take-overs and
Mergers; or
(e) pursuant to the arbitration rules for the Electricity
Arbitration Association or pursuant to any judicial
or other arbitral process or tribunal having
jurisdiction in relation to the Obligor; or
70.2.4 to the employees, directors, agents, consultants and
professional advisers of the Obligor, in each case on the
basis set out in Clause 70.3.
230
70.3 Internal procedures: with effect from the date of this Agreement the
Obligor shall adopt procedures within its organisation for ensuring the
confidentiality of all Confidential Information which it is obliged to
preserved as confidential under Clause 70.1. These procedures are:-
70.3.1 the Confidential Information will be disseminated within the
Obligor only on a "need to know" basis;
70.3.2 employees, directors, agents, consultants and professional
advisers of the Obligor in receipt of Confidentiality
Information will be made fully aware of the Obligor's
obligations of confidence in relation thereto; and
70.3.3 any copies of the Confidential Information, whether in hard
copy or computerised form, will clearly identify the
Confidential Information as confidential.
71. RELEASE OF INFORMATION
71.1 Notwithstanding any foregoing provisions of this Part XX, the Parties
agree that each of them shall be at liberty to provide copies of this
Agreement and the Initial Settlement Agreement and any supplemental
agreement to both or either thereof to any third party, and each of the
Parties consents to disclosure by any other Party of the fact that it
is a party to this Agreement and the Initial Settlement Agreement and,
where such is the case, a Pool Member.
71.1.1 The following provisions of this Clause are designed to
facilitate the release of certain data and other information
to persons who are not Parties. Such provisions are without
prejudice to any Party's rights to disclose or use data or
information pursuant to the other provisions of this Agreement
or otherwise.
71.1.2 At the request of the Executive Committee or any person who is
not a Party and against payment by or on behalf of the person
to whom the data or other information is to be released of a
fee or charge therefor calculated mutatis mutandis on the
basis set out in Clause 34.2, the Settlement System
Administrator shall provide to such person(s) as the Executive
Committee may nominate or (as the case may be) to the person
requesting the same, data and other information received by
the Settlement System Administrator in or derived from the
operation of the Settlement System provided that:-
(a) the Pool Rules specify that such data or other
information may be so released; or
231
(b) the Party to whose affairs such data or other
information relates has given its prior consent in
writing to such disclosure.
71.1.3 Upon request by the Executive Committee, the Settlement System
Administrator shall notify the Executive Committee in writing
of any request received by it from any person under Clause
71.1.2 and of the name of such person and shall give details
of the data and other information provided.
71.1.4 Each of the parties agrees to the release of data and other
information in the circumstances described in Clause 71.1.2.
71.2 The Parties acknowledge that, for the Executive Committee and each of
its sub- committees properly to carry out its duties and
responsibilities under this Agreement, the Executive Committee may
decide or be obliged to keep confidential to it (and may instruct its
sub-committees to keep confidential) matters, reports, data and other
information produced by or for, made available to or held by, the
Executive Committee or the relevant sub-committee and, in any such
case, Committee Members shall neither disclose the same to the Pool
Member(s) which they represent nor be required by such Pool Member(s)
so to disclose. Each of the Parties agrees to respect the position of
the Executive Committee, its sub-committees and the Committee Members
accordingly.
71.3 Each of the Parties other than the Settlement System Administrator, the
Grid Operator, the Ancillary Services Provider and the Pool Funds
Administrator agrees, subject to any relevant confidentiality
restriction binding on it, to provide the Executive committee, the
Chief Executive and the personnel referred to in Clause 17.2.1 with all
data and other information reasonably requested by the Executive
Committee and necessary for the Executive Committee, the Chief
Executive or (as the case may be) such personnel properly to carry out
its or his duties and responsibilities under this Agreement. The Grid
Operator and the Ancillary Services Provider each agree, subject to any
relevant confidentiality restriction binding on it, to provide the
Executive Committee, the Chief Executive and the personnel referred to
in Clause 17.2.1 with such data and other information relating to its
duties, responsibilities or obligations under this Agreement which the
Executive Committee shall reasonably request and which is necessary for
the Executive Committee, the Chief Executive or (as the case may be)
such personnel to carry out its or his duties and responsibilities
under this Agreement.
71.4 Each party acknowledges and agrees that no Party shall be in breach of
any obligation of confidentiality owed by it pursuant to this Agreement
in reporting under Clause 6.10 any breach of the Pool Rules or its
belief that any such breach has occurred.
232
71.5 Notwithstanding any other provision of this Agreement, the provisions
of this Part XX shall continue to bind a person after its cessation as
a Party for whatever reason.
233
PART XXI
THE PARTICIPATION OF NGC
72. THE PARTICIPATION OF NGC
72.1 As Grid Operator: for so long as NGC is the Grid Operator, references
in this Agreement to the Grid Operator shall be read and construed as
references to NGC acting in its capacity as Grid Operator, and all
rights, benefits, duties, responsibilities, liabilities and obligations
under this Agreement with regard to the Grid Operator shall be those of
NGC acting in that capacity.
72.2 As Ancillary Services Provider: for so long as NGC is the Ancillary
Services Provider, references in this Agreement to the Ancillary
Services Provider shall be read and construed as references to NGC
acting in its capacity as Ancillary Services Provider, and all rights,
benefits, duties, responsibilities, liabilities and obligations under
this Agreement with regard to the ancillary services Provider shall be
shoe of NGC acting in that capacity. The Ancillary Services Provider
shall have the benefit of the obligations and undertakings entered into
by the Settlement System Administrator and Pool Funds Administrator in
this Agreement.
72.3 As Pumped Storage Business: references in this Agreement to NGC Pumped
Storage shall be read and construed as references to the pumped storage
business division of NGC, and all rights, benefits, responsibilities,
liabilities and obligations of NGC Pumped Storage under this Agreement
shall be those of NGC acting in that capacity.
72.4 As Pool Member: the Parties acknowledge that, save in its capacity as
NGC Pumped Storage, NGC is not in any of its capacities under this
Agreement a Pool Member.
72.5 Wholly-owned subsidiary: NGC shall procure that so long as NGC
Settlements Limited is appointed Settlement System Administrator it
shall at all times remain a wholly-owned subsidiary of, and wholly
controlled by, NGC.
73. INTRA-COMPANY CONTRACTS
73.1 Intra-company contracts (1): NGC acknowledges and agrees that where, as
Ancillary Services Provider, it enters into an Ancillary Services
Agreement with NGC Pumped Storage for the purchase of Ancillary
Services NGC shall, in each of those capacities, comply with the terms
and conditions as if for the purpose the Ancillary Services Provider
and NGC Pumped Storage were separate legal entities.
73.2 Intra-company contracts (2): NGC acknowledges and agrees that where, as
Grid Operator, it enters into the Master Connection and Use of System
Agreement and/or any Supplemental Agreement with NGC Pumped Storage NGC
shall, in each of those
234
capacities, comply with the terms and conditions as if for the purpose
the Grid Operator and NGC Pumped Storage were separate legal entities.
235
PART XXII
MISCELLANEOUS
74. FORCE MAJEURE
74.1 Force Majeure: where the Settlement System Administrator, the Grid
operator, the Pool Funds Administrator or the Ancillary Services
Provider (the "Non-Performing Party") is unable to carry out all or any
of its obligations under this Agreement by reason of Force Majeure:-
74.1.15 this Agreement shall remain in effect; but
74.1.2 (a) the Non-Preforming Party's relevant obligations;
(b) the obligations of each of the other parties owed to
the Non- Performing Party under this Agreement; and
(c) any other obligations (not being payment obligations)
of such other Parties under this Agreement owed inter
se which the relevant Party is unable to carry out
directly as a result of the suspension of the
Non-Performing Party's obligations.
shall be suspended for a period qual to the Force Majeure
provided that:-
(i) the suspension of performance is of no greater scope
and of no longer duration than is required by the
Force Majeure;
(ii) no obligations of any Party are excused as a result
of the Force Majeure; and
(iii) in respect of the suspension of the Non-Performing
Party's obligations:-
(A) the Non-Performing Party gives the Executive
Committee (which shall promptly inform the
other Parties, the Pool Auditor and the
Director) prompt notice describing the
circumstance of Force Majeure, including the
nature of the occurrence and its expected
duration, and continues to furnish daily
reports with respect thereto during the
period of Force Majeure; and
236
(B) the Non-Performing Party uses all reasonable
efforts to remedy its inability to perform.
74.2 Discussions: as soon as is practicable after the occurrence of the
Force Majeure the Non-Performing Party shall discuss with the Executive
Committee how best to continue its operations and give effect to its
obligations so far as possible in accordance with this Agreement.
75. NOTICES
75.1 Addresses: save as otherwise expressly provided in this Agreement, any
notice or other communication to be given by one Party to another
under, or in connection with the matters contemplated by, this
Agreement shall be addressed to the recipient and sent to the address,
telex number or facsimile number of such other Party given in this
Agreement for the purpose and marked for the attention of the person so
given or to such other address, telex number and/or facsimile number
and/or marked for such other attention as such other Party may from
time to time specify by notice given in accordance with this Clause 75
to the Party giving the relevant notice or other communication to it.
75.2 Executive Committee: any notice or other communication to be given to
the Executive Committee under, or in connection with the matters
contemplated by, this Agreement shall be sent to the Secretary at the
address, telex number or facsimile number given in this Agreement for
the purpose or to such other address, telex number or facsimile number
as the Secretary may from time to time specify by notice given in
accordance with this Clause 75 to the Parties.
75.2 Deemed receipt: save as otherwise expressly provided in this Agreement,
any notice or other communication to be given by any Party to any other
Party under, or in connection with the matters contemplated by, this
Agreement shall be in writing and shall be given by letter delivered by
hand or sent by first class prepaid post (airmail if overseas) or telex
or facsimile, and shall be deemed to have been received:-
75.3.1 in the case of delivery by hand, when delivered; or
75.3.2 in the case of first class prepaid post, on the second day
following the day of posting or (if sent airmail overseas or
from overseas) on the fifth day following the day of posting;
or
75.3.3 in the case of telex, on the transmission of the automatic
answer-back of the addressee (where such transmission occurs
before 1700 hours on the day of transmission) and in any other
case on the day following the day of transmission; or
237
75,3,4 in the case of facsimile, on acknowledgement by the
addressee's facsimile receiving equipment (where such
acknowledgement occurs before 1700 hours on the day of
acknowledgement) and in any other case on the day following
the day of acknowledgement.
76. ASSIGNMENT
A Party shall not assign and/or transfer and shall not purport to
assign and/or transfer any of its rights and/or obligations under this
Agreement provided that any Party may assign by way of security only
all or any of its rights over receivables arising under this Agreement.
77. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
different Parties on separate counterparts, each of which when executed
and delivered shall together constitute but one and the same
instrument.
78. WAIVERS; REMEDIES NOT CUMULATIVE
Waivers: no delay by or omission of any Party in exercising any right,
power, privilege or remedy under this Agreement shall operate to impair
such right, power, privilege or remedy or be construed as a waiver
thereof. Any single or partial exercise of any such right, power,
privilege or remedy shall not preclude any other or further exercise
thereof or the exercise of any other right, power, privilege or remedy.
78.2 Remedies not cumulative: the rights and remedies provided by this
Agreement to the Parties are exclusive and not cumulative and exclude
and are in place of all substantive (but not procedural) rights or
remedies express or implied and provided by common law or stature in
respect of the subject matter of this Agreement (other than any such
rights or remedies provided under section 58 of the Act or any
directions (if any) issued thereunder), including without limitation
any rights any Party may possess in tort which shall include actions
brought in negligence and/or nuisance. Accordingly, each of the Parties
hereby waivers to the fullest extent possible all such rights and
remedies provided by common law or statute, and releases a Party which
is liable to another (or others), its officer, employees and agents to
the same extent from all duties, liabilities, responsibilities or
obligations provided by common law or statute in respect of the xxxxxx
dealt with in this Agreement and undertakes not to enforce any of the
same except as expressly provided herein.
78.3 Director's and Secretary of State's rights: for the avoidance of doubt,
the Parties acknowledge and agree that nothing in this Agreement shall
exclude or restrict or otherwise prejudice or affect any of the rights,
powers, privileges, remedies, duties
238
and obligations of the Secretary of State or the Director under the Act
or any Licence or otherwise howsoever.
79. SEVERANCE OF TERMS
If for any reason whatever any provision of this Agreement is or
becomes invalid, illegal or unenforceable, or is declared by any court
of competent jurisdiction or any other Competent Authority to be
invalid, illegal or unenforceable or if such Competent Authority:-
79.1 refuses, of formally indicates an intention to refuse, authorisation
of, or exemption to, any of the provisions of or refusal either way of
outright refusal or by way of requiring the amendment or deletion of
any provision of this Agreement and/or the giving of undertakings or
the acceptance of conditions as to future conduct before such
authorisation or exemption can be granted); or
79.2 formally indicates that to continue to operate any provision of this
Agreement may expose the Parties to sanctions under any law, order,
enactment or regulation, or requests any Party to give undertakings or
to accept conditions as to future conduct in order that such Party may
not be subject to such sanctions
80. ENTIRE AGREEMENT
This Agreement contains or expressly refers to the entire agreement
between the Parties with respect to the subject matter hereof and
expressly excludes any warranty, condition or other taking implied at
law or by custom and supersedes all previous agreements and
understandings between the Parties with respect thereto and each of the
Parties acknowledges and confirms that it does not enter into this
Agreement in reliance on any representation, warranty or other
undertaking not fully reflected in the terms of this Agreement,
81. LANGUAGE
Each notice, instrument, certificate or other document to be given by
one Party to another hereunder shall be in the English language.
82. RESTRICTIVE TRADE PRACTICES ACT 1976
If after the commencement of section 100 of the Act (the "RTP Section")
this Agreement is subject to registration under the Restrictive Trade
Practices Act 1976 then NGC undertakes, no earlier than five months but
no later than six months after the commencement of the RTP Section, to
furnish to the Director General of Fair Trading particulars of this
Agreement and of any agreement of which it forms part. Before
furnishing such particulars NGC will consult with the Founder
Generators and
239
the Founder Suppliers as to the nature of the particulars to be so
furnished and will consult with the Founder Generators and Founder
Suppliers regularly regarding the progress of discussions with the
Director General of Fair Trading in regard to the agreement(s) so
furnished.
83. ARBITRATION
83.1 Referral to arbitration: save where expressly stated in this Agreement
to the contract and subject to any contrary provision of the Act or any
Licence or the rights, powers, duties and obligations of the Director
or the Secretary of State under the Act, any Licence or otherwise
howsoever, any dispute or difference of whatever nature howsoever
arising under, out of or in connection with this Agreement between any
one or more parties shall be and is hereby referred to arbitration
pursuant to the arbitration rules of the Electricity Arbitration
Association in force from time to time.
83.2 Proper law: whatever the nationality, residence or domicile of any
Party and wherever the dispute or difference or any part thereof arose
the law of England shall be the proper law of any reference to
arbitration hereunder and in particular (but not so as to derogate from
the generality of the foregoing) the provisions of the Arbitration Acts
1950 (notwithstanding anything in section 34 thereof) to 1979 shall
apply to any such arbitration wherever the same or any part of it shall
be conducted.
83.3 Third Party Claims (1): subject always to Clause 83.6, if any tariff
customer (as defined in section 22(4) of the Act) brings any legal
proceedings in any court (as defined in the Rules of the Supreme Court
1965 and in the County Courts Act 1984) against one or more persons,
any of which is a Party (the "Defendant Contracting Party"), and the
Defendant Contracting Party wishes to made a Third Party Claim (as
defined in Clause 83.5) against any other Party (a "Contracting Party")
which would but for this Clause 83.3 have been a dispute or difference
referred to arbitration by virtue of Clause 83.1 then, notwithstanding
the provisions of Clause 83.1 which shall not apply and in lieu of
arbitration, the court in which the legal proceedings have been
commenced shall hear and completely determine and adjudicate upon the
legal proceedings and the Third Party Claim not only between the tariff
customer and the Defendant Contracting Party but also between either or
both of them and any other Contracting Party whether by way of third
party proceedings (pursuant to the Rules of the Supreme Court 1965 or
the County Court Rules 1981) or otherwise as may be ordered by the
court
83.4 Third Party Claims (2): where a Defendant Contracting Party makes a
Third Party Claim against any Contracting Party and such Contracting
Party wishes to make a Third Party Claim against a further Contracting
Party the provisions of Clause 83.3 shall apply mutatis mutandis as if
such Contracting Party had been the Defendant Contracting Party and
similarly in relation to any such further Contracting Party.
240
83.5 Third Party Claims (3): for the purposes of this Clause 83 "Third Party
Claim" shall mean:-
83.5.1 any claim by a Defendant Contracting Party against a
Contracting Party (whether or not already a party to the legal
proceedings) for any contribution or indemnity; or
83.5.2 any claim by a Defendant Contracting Party against such a
Contracting Party for any relief or remedy relating to or
connected with the subject matter of the legal proceedings and
substantially the same as some relief or remedy claimed by the
tariff customer; or
83.5.3 any requirement by a Defendant Contracting Party that any
question or issue relating to or connected with the subject
matter of the legal proceedings should be determined not only
as between the tariff customer and the defendant Contracting
Party but also as between either or both of them and a
Contracting Party (whether or not already a party to the legal
proceedings).
83.6 Limitation: Clause 83.3 shall apply only if at the time the legal
proceedings are commenced no arbitration has been commenced between the
Defendant Contracting Party and another Contracting Party raising or
involving the same or substantially the same issues as would be raised
by or involved in the Third Party Claim. The tribunal in any
arbitration which has been commenced prior to the commencement of legal
proceedings shall determine the question, in the event of dispute,
whether the issues raised or involved are the same or substantially the
same.
84. JURISDICTION
84.1 Submission to jurisdiction: subject and without prejudice to Clauses 83
and 84.4, all the Parties irrevocably agree that the courts of England
are to have exclusive jurisdiction to settle any disputes which may
arise out of or in connection with this Agreement and that accordingly
any suit, action or proceeding (together in this Clause 84 referred to
as "Proceedings") arising out of or in connection with this Agreement
may be brought in such courts.
84.2 Waiver: each Party irrevocably waives any objection which it may have
now or hereafter to the laying of the venue of any Proceedings in any
such court as if referred to in this Clause and any claim that any such
Proceedings have been brought in an inconvenient forum and further
irrevocably agrees that a judgment in any Proceedings brought in the
English courts shall be conclusive and binding upon such Party and may
be enforced in the courts of any other jurisdiction.
241
84.3 Agent for service of process: each Party which is not incorporated in
any part of England or Wales agrees that if it does not have, or shall
cease to have, a place of business in England or Wales it will promptly
and hereby does appoint the Settlement System Administrator (or such
other person as shall be acceptable to the Executive Committee)
irrevocably to accept service of process on its behalf in any
Proceedings in England.
84.4 Arbitration: for the avoidance of doubt nothing contained in the
foregoing provisions of this Clause 84 shall be taken as permitting a
Party to commence Proceeding to be referred to arbitration.
85. GOVERNING LAW
This Agreement shall be governed by, and construed in all respects in
accordance with, English law.
86. THE SETTLEMENT SYSTEM ADMINISTRATOR'S CONTRACT
86.1 The Parties anticipate that this Agreement will be amended by a
Supplemental Agreement to provide for revised terms and conditions upon
and subject to which the Settlement System Administrator will
administer and render services connected with the administration of the
Settlement System (the "Revised Terms") and it is expected that these
revised terms and conditions will be contained in a separate Schedule
to (but nevertheless will form part of) this Agreement. At the date at
which this Clause 86 takes effect negotiations are continuing on the
Revised Terms.
86.2 Notwithstanding the fact that the Revised Terms do not exist at the
date at which this Clause 86 takes effect, the Parties are keen to
establish as soon as possible the terms of understanding reached
between the Parties as to the revised terms and conditions to be
contained in the Revised Terms. Accordingly, a letter of intent (the
"Letter of Intent") is in the course of preparation which, and subject
to the Executive Committee by unanimous resolution approving the Letter
of Intent and the Settlement System Administrator acknowledging the
same will revise in part the billing and financial reporting
arrangements associated with the provision of services by the
Settlement System Administrator described in Clause 86.1 from 1st
April, 1994.
86.3 With a view to finalisation of the Revised Terms an agreement is also
in the course of preparation which will give detailed effect to those
revised terms and conditions (the "Framework Agreement") and subject to
the Executive Committee first approving (with or without amendment) the
Framework Agreement by unanimous resolution and the Settlement System
Administrator executing and delivering the same, each of the Parties
agrees that, it shall be bound by the Framework Agreement until the
Framework End Date as if it were part of this Agreement provided that:-
242
(i) if the Framework Agreement shall expressly suspend provisions
of this Agreement which relate to the performance of services
by the Settlement System Administrator or other rights,
obligations, responsibilities and/or duties of the Settlement
System Administrator under this Agreement, those provisions
shall be suspended for the period ending no later than the
Framework End Date specified in the Framework Agreement;
(ii) subject as provided in (i) above, in the event of any
inconsistency or conflict between the provisions of the
Framework Agreement and this Agreement, the provisions of this
Agreement shall prevail; and
(iii) the expiry or termination of the Framework Agreement shall be
without prejudice to the accrued rights and liabilities of
each Party thereunder.
86.4 The Framework End Date shall be 31st March, 1995 or such other date,
being no later than 31st March, 1996, as the Executive Committee and
the Settlement System Administrator may agree,
IN WITNESS whereof this Agreement has been duly executed the day and year first
above written
243
SCHEDULE 1
PART I
The Generators
Registered Registered or
Name Number Principal Office
---- ------ ----------------
National Power PLC 2366963 Windmill Hill Business Park
Xxxxxxxxx Way
Swindon
Wiltshire SN5 6PB
PowerGen plc 2366970
00 Xxx Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Nuclear Electric plc 2264251 Xxxxxxx Way
Barnwood
Gloucester GL4 7RS
The National Grid 2366977 National Grid House
Company plc Xxxxx Corner Road
(Pumped Storage Coventry CV4 8JY
Business Division)
Electricite de France, - Department Relations avec
Service National L'Etranger
Echanges d'Energie
0 Xxx Xxxxx Xxxxx
0 xxx xxxxx
00000 Xxxxx
Cedex 08
Scottish Power plc 117120 1 Atlantic Quay
Glasgow G2 8SP
Scotland
Scottish Hydro-Electric PLC 117119 00 Xxxxxxx Xxxxxxx
Xxxxxxxxx XX0 0XX
Xxxxxxxx
244
Registered Registered or
Name Number Principal Office
---- ------ ----------------
British Nuclear Fuels plc 1002607 Xxxxxx
Warrington
Lancashire WA3 6AS
Central Power Limited 2251099 Xxxxxxx Xxxx Halesowen
West Midlands B62 8BP
Lakeland Power Limited 2355290 Roosecote Power Station
Roosecote Xxxxx
Xxxxxx-in-Furness
Cumbria LA13 OPR
245
PART II
The Suppliers
Part A
Public Electricity Suppliers
Registered Registered or
Name Number Principal Office
---- ------ ----------------
Fibropower Limited 0000000 00 Xxxxxxxxx Xxxx
Xxxxxx X00 0XX
Teesside Power 246040 00 Xxxx Xxxxxx
Xxxxxx X0X 0XX
CeltPower 2656561 13 Xxxxxxx XX Street
Limited Phoenix Parkway
Corby
Nothampshire
NN17 1QT
Peterborough Power 2353599 Storeys Bar Road
Limited Peterborough
PE1 5NT
Regional Power Generators 2352390 Whetherby Road
Limited Scarcroft
Leeds
LS14 3HS
Fibrogen Limited 0000000 00 Xxxxxxxxx Xxxx
Xxxxxx X00 0XX
Elm Energy & Recycling (UK) 2516685 Sparklemore House
Limited Biddings Lane
Bilston
Wolverhampton
West Midlands
WV14 9NN
South East London 2489384 0 Xxxxxxxx Xxxxx
246
Registered Registered or
Name Number Principal Office
---- ------ ----------------
Combined Heat London SW1X 7DH
and Power Limited
Keadby Generation 2729513 P.O. Box 3
Limited Lowgate House
Lowgate
Hull
HU1 1JJ
Eukan Energy 7716139 3rd Floor
00 Xxxxx Xxxxxx
Xxxxxxxxxx
Xxxxxxxxx
XX0 0XX
247
PART II
The Suppliers
Part A
Public Electricity Suppliers
Registered Registered or
Name Number Principal Office
---- ------ ----------------
Eastern Electricity plc 2366906 Wherstead Park
Wherstead
Ipswich
Suffolk
1P9 2AQ
East Midlands 2366923 398 Coppice Road
Electricity plc P.O. Box 4
Xxxxxx
Xxxxxxxxxx
NG5 7HX
London Electricity plc 2366852 Templar House
00 - 00 Xxxx Xxxxxxx
Xxxxxx XX0X 0XX
Manweb plc 2366937 Sealand Road
Chester
CH1 4LR
Midlands Electricity 2366928 Xxxxxxx Xxxx
Halesowen
West Midlands
B62 8BP
Northern Electric plc 2366942 Carliol House
Market Xxxxxx
Xxxxxxxxx xxxx Xxxx
XX0 0XX
NORWEB plc 0000000 Xxxxxx Xxxx
Xxxxxxxxxx
248
Registered Registered or
Name Number Principal Office
---- ------ ----------------
M16 0HQ
SEEBOARD plc 0000000 Xxxxx Xxxxxx
Xxxx
Xxxx Xxxxxx
XX0 0XX
Southern Electric plc 2366879 Littlewick Green
Maidenhead
Berkshire
SL6 3QB
South Wales Electricity plc 0000000 Xxxxxxx Xxxx
Xx. Xxxxxxx
Xxxxxxx
XX00 0XX
South Western Electricity 2366894 000 Xxxx Xxxxxx
xxx Xxxxx Xxxx
Xxxxxxxxxxx
Xxxxxxx
XX00 0XX
Yorkshire Electricity 2366995 Wetherby Road
Group plc Xxxxxxxxx
Xxxxx
XX00 0XX
Part B
Second Tier Suppliers
Registered Registered or
Name Number Principal Office
---- ------ ----------------
National Power PLC 2366963 Windmill Hill Business Park
Xxxxxxxxx Way
Swindon
Wiltshire SN5 6PB
249
Registered Registered or
Name Number Principal Office
---- ------ ----------------
PowerGen plc 2366970 00 Xxx Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Nuclear Electric plc 2264251 Xxxxxxx Way
Barnwood
Gloucester GL4 7RS
SEEBOARD plc 0000000
Xxxxx Xxxxxx
Xxxx
Xxxx Xxxxxx
XX0 0XX
British Nuclear Fuels plc 1002607 Xxxxxx
Warrington
Lancashire WA3 6AS
Xxxxxx Xxxxxxxxx & Sons 48745 Bank Quay
Limited P.O. Box 26
Warrington
Cheshire
WA4 1AB
UML Limited 661900 P.O, Box 115
Port Sunlight
Wirral
Merseyside
L62 4ZG
Slough Electricity Supplies 2474514 000 Xxxx Xxxx
Xxx Xxxxxx
XX0 0XX
Shell Power Limited 2559630 Shell-Mex House
Strand
London
WC2R 0DX
Energy Supply Contracts 172268 P.O. Box 178
One Melford Court
The Xxxxxx
250
Registered Registered or
Name Number Principal Office
---- ------ ----------------
Ransomes Europark
Ipswich
Suffolk IP3 9SZ
IMPKEMIX Energy Limited 2076043 The Heath
Runcorn
Cheshire WA7 4QT
CITIGEN Limited 0000000 00 Xx. Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxx Xxxx & Co. AG 3-12738 Baarerstrasse 37
CH6304 Zug
Switzerland
Accord Energy 2869629 000 Xxxxxxxxx Xxxx
Xxxxxxx Xxxxxx XX0X 0XX
Eukan Energy
7716139 3rd Floor
Limited 00 Xxxxx Xxxxxx
Xxxxxxxxxx
Xxxxxxxxx
XX0 0XX
Xxxxxxx Petroleum 2749711 3rd Floor
00 Xxxxx Xxxxxx
Xxxxxxxxxx
Xxxxxxxxx
XX0 0XX
Altwood Petroleum 2728156 Xxxxxxx House
Limited Altwood Close
Maidenhead
Berkshire
SL6 4PP
251
Part C
Others
Registered Registered or
Name Number Principal Office
---- ------ ----------------
Electricite de France, - 0 Xxx xx Xxxxxxx
Xxxxxxx Xxxxxxxx 00000 Xxxxx
Xxxxxx
Scottish Power plc 117120
1 Atlantic Quay
Glasgow G2 8SP
Scotland
Scottish Hydro-Electric PLC 117119 00 Xxxxxxx Xxxxxxx
Xxxxxxxxx XX0 0XX
Xxxxxxxx
252
SCHEDULE 2
The Other Parties
Registered Registered or
Name Number Principal Office
---- ------ ----------------
Barking Power Limited 2354681 Devonshire House
Mayfair Place
London W1X 5FH
Keadby Power 2548042 P.O. Box 3
Limited Lowgate House
Lowgate
Hull
HU1 1JJ
Hydro Electric 2487475 Royex House
Energy Limited Aldermanbury Square
London EC2V 7LD
Medway Power 2537903 Boston House
Limited The Little Green
Richmond Twp 1QE
Derwent Cogeneration 2650621 66 Buckingham Gate
Limited London SW1E 6AU
South East London 2489384 8 Headfort Place
Combined Heat and London SW1X 7DH
Power Limited
Cabah Energy 2759706 000 Xxxxxx
Xxxxxxx Xxxxxx XX0X 0XX
Keadby Generation 2729513 P.O. Box 3
Limited Lowgate House
Lowgate
Hull
HU1 1JJ
Kingsnorth Power 2656343 190 Strand
Limited London Wc2R 1JN
253
Fellside Heat and 2614535 Risley
Power Limited Warrington
Cheshire
Schlumberger 534821 1 Kingsway
Industries Limited london WC2B 6XH
Humber Power Limited 2571241 18 Savile Row
Limited London W1X 1AE
Eastern Generation 2529347 Wherstead Park
Services Limited Wherstead
Ipswich
Suffolk
IP9 2AQ
254
SCHEDULE 3
Form of Accession Agreement
THIS SUPPLEMENTAL AGREEMENT is made on [__________] BETWEEN:-
(1) [__________], a company incorporated [with limited liability] under the
laws of [___________] [(registered number [____________])] and having
its [registered] [principal] office at [___________] (the "New Party");
and
(2) [___________] (the "Nominee") on behalf of all the parties to the
Pooling and Settlement Agreement referred to below.
WHEREAS:-
(a) by an agreement dated 30th march, 1990 made between the Founder
Generators named therein (1), the Founder Suppliers named therein (2),
NGC Settlements Limited as Settlement System Administrator (3), Energy
Pool Funds Administration Limited as Pool Funds Administrator (45), The
National Grid Company plc as Grid Operator and Ancillary Services
Provider (5), and Scottish Power plc and Electricite de France, Service
national as Externally Interconnected Parties (6) (as amended, varied,
supplemented, modified or suspended, the "Pooling and Settlement
Agreement") the parties thereto agreed to give effect to and be bound
by certain rules and procedures for the operation of an electricity
trading pool and the operation of a settlement system; and
(b) the New Party has requested that it be admitted as a Party pursuant to
Clause 3 of the Pooling and Settlement Agreement and each of the
Parties hereby agrees to such admission.
NOW IT IS XXXXXX AGREED as follows:-
1. Unless the context otherwise requires, word and expressions defined in
the Pooling and Settlement Agreement shall bear the same meanings
respectively when used herein.
2. The Nominee (acting on behalf of each of the Parties) hereby admits the
New Party as an additional Party under the Pooling and Settlement
Agreement on the terms and conditions hereof and with effect from
[insert effective date of admission].
3. The New Party hereby accepts its admission as a Party and undertakes
with the Nominee (acting on behalf of each of the Parties) to perform
and to be bound by the terms and conditions of the Pooling and
Settlement Agreement as a Party as from the [insert effective date of
admission].
255
4. For all purposes in connection with the Pooling and Settlement
Agreement the New Party shall as from the [insert effective date of
admission] be treated as if it had been a signatory of the Pooling and
Settlement Agreement as a [[Generator]/[Supplier]/[Externally
Interconnected Party]]*, and as if this Agreement were part of the
Pooling and Settlement Agreement, and the rights and obligations of the
Parties shall be construed accordingly.
5. This Agreement and the Pooling Agreement and Settlement Agreement shall
be read and construed as one document and references in the Pooling and
Settlement Agreement to the Pooling and Settlement Agreement (howsoever
expressed) shall be read and construed as references to the Pooling and
Settlement Agreement and this Agreement.
6. This Agreement shall be governed by and construed in all respects in
accordance with English law and the provisions of Clauses 83 and 84 of
the Pooling and Settlement Agreement shall apply hereto mutatis
mutandis.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first above written
[New Party]
By:
Notice details (Clause 75 of the Pooling and Settlement Agreement)
Address:
Telex number:
Facsimile number:
Attention:
[Nominee]
(for and on behalf of each of the parties to the Pooling and Settlement
Agreement)
By:
___________________________________________
* Delete/complete as appropriate
256
Note: this form will require adaptation in the circumstances described in
Clauses 3.11 to 31.14 inclusive.
257
SCHEDULE 4
The Accounting Procedure
PART A
PRELIMINARY
1. Definitions and Interpretation
PART B
THE PROVISION OF FINANCIAL INFORMATION
1. Budgets, Statements of Costs and Statements of Charges
2. Review and Audits
3. Auditors' opinion
4. Accounting Period
PART C
THE SETTLEMENT SYSTEM ADMINISTRATOR'S CHARGES
1. General
2. The Initial Period
3. Post-Initial Period
4. Corporate Overhead Charges and Purchases
5. Miscellaneous Charges and Fuel Security Costs
6. Second Tier System Changes
7. Allocation of Charges
8. Adjustment to Margin
9. Capital Expenditure
258
PART D
ALLOCATION OF CHARGES
1. The settlement System Administrator's Charges
PART E
[NOT USED]
PART F
PRO-FORMA BUDGET
PART G
PRO-FORMA STATEMENT OF COSTS
PART H
PRO-FORMA STATEMENT OF CHARGES
259
PART A
Preliminary
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: in this Schedule, unless the context otherwise requires,
the words and expressions set out in this Section 1.1 shall bear the
meanings respectively set out herein:-
"1993/1994 Accounting Period" has the meaning given to that expression
i Section 6,1 of part C;
"Bought-in Supplies" means goods or services supplied to or acquired by
the Settlement System Administrator for the running of the Settlements
Business including, for the avoidance of doubt, goods or services
supplied by or acquired from any affiliate of the Settlement System
Administrator;
"Budget" means any budget prepared by the Settlement System
Administrator pursuant to Section 1.1 of Part B;
"Capital Charge" means, in respect of any Accounting Period or part
thereof, a sum equal to interest on the Capital Employed during such
period calculated at a rate of 2.5 per cent. per annum below the Base
Rate from time to time of National Westminster bank PLC during such
period;
"Capital Employed" means, in respect of any Accounting Period, the
Fixed Assets plus the Current Assets less the Current Liabilities;
"Capital Expenditure" means, in respect of any Accounting Period,
expenditure by the Settlement System Administrator on fixed assets
required for the purposes of the Settlements Business including assets
acquired on lease which are required by generally accepted accounting
principles to be capitalised;
"Cost base" means, in respect of any Accounting Period, the average
value of the current assets of the Settlement System Administrator
employed in the Settlements Business during such period determined by
the following formula:-
a+b
---
2
where "a"= the closing balance for current assets of the
Settlement System Administrator employed in the
Settlements Business for the Accounting Period
immediately prior to such period; and
260
"b"= the closing balance for current assets of the
Settlement System Administrator employed in the
Settlements Business for such period as set out in
the audited accounts of the Settlements Business
provided that in the case of the first Accounting Period "a" shall
equal the balance for current assets of the Settlement System
Administrator employed in the Settlements business as at 1st June, 1990
a reported upon by the auditors of the Settlement System Administrator
in its opining to Pool Members issued pursuant to Section 3 of Part B;
"Current Liabilities" means, in respect of any Accounting Period, the
average value of the current liabilities of the Settlement System
Administrator incurred in the Settlements Business during such period
determined by the following formula:-
a+b
---
2
where "a"= the closing balance for current liabilities of the
Settlement System Administrator incurred in the
Settlements Business for the Accounting Period
immediately prior to such period; and
"b"= the closing balance for current liabilities of the
Settlement System Administrator incurred in the
Settlements Business for such period as set out in
the audited accounts of the Settlements Business
provided that in the case of the first Accounting Period "a: shall
equal the balance for current liabilities of the Settlement System
Administrator employed in the Settlements Business as at 1st June, 1990
as reported upon by the auditors of the Settlement System Administrator
in its opinion to Pool Members issued pursuant to Section 3 of Part B;
"Depreciation" means, in respect of any Accounting Period, the
aggregate value of all depreciation on assets owned or employed by the
Settlement System Administrator in the Settlements Business, such
assets being depreciated in accordance with the accounting policies of
the Settlement System Administrator for such period as stated in the
audited accounts of the Settlement System Administrator for such period
and treated as depreciation in accordance with the terms of this
Agreement;
"Efficiencies" means, in respect of any Accounting Period in the Post
Initial Period, the amount (if any) by which the Cost Base in such
Accounting Period is less than the Cost Base in the immediately
preceding Accounting Period (the "First Period") after adjustments on a
pound for pound basis to any difference between such two Cost Bases to
offset movements from the Cost Base in the First Period due to the Rate
of
261
Inflation, Value For Money Audit Adjustments, Required Adjustments and
any other matters beyond the control of the Settlement System
Administrator and changes in the accounting principles or practices of
the Settlement System Administrator made during the Accounting Period
in question;
"Fixed Assets" means, in respect of any Accounting Period, the average
value of the fixed assets of the Settlement System Administrator
employed in the Settlements Business during such period determined by
the following formula:_
a+b
---
2
where "a"= the closing balance for fixed assets of the
Settlement System Administrator employed in the
Settlements Business for the Accounting Period
immediately prior to such period; and
"b"= the closing balance for fixed assets of the
Settlement System Administrator employed in the
Settlements Business for such period as set out in
the audited accounts of the Settlements Business
provided that in the case of the first Accounting Period "a: shall
equal the balance for fixed assets of the Settlement System
Administrator employed in the Settlements Business as at 1st June, 1990
as reported upon by the auditors of the Settlement System Administrator
in its opinion to Pool Members issued pursuant to Section 3 of Part B;
"Handling Charge" means, in respect of any amount, 2 per cent. of such
amount;
"individual Limit means, in respect of any Accounting Period during the
Initial Period, such amount as, when added to the Total Operating Costs
in such Accounting Period, is equal to 6 per cent. of the sum of such
amount and such Total Operating Costs and, in respect of any Accounting
Period during the Post-Initial Period, such amount as when added to the
Revenue Base in such accounting Period is equal to 6 per cent. of the
sum of such amount and such Revenue Base;
"Non-Second Tier System" means a metering system at premises eligible
for supply under a Second Tier Supply Licence in the authorized area of
a Supplier holding a PES Licence but not being a Metering System in
respect of which a Second Tier Supplier is the Registrant;
"Overall Limit" means, in respect of Capital Expenditure in any
Accounting Period, (pound)250,000, as the same may b increased from the
Effective Date by the Rate of Inflation;
262
"Post-Initial Period" means the period commencing on the day following
the last day of the Accounting Period at the end of which the Initial
Period ends;
"Rate of Inflation" means, in respect of any Accounting Period, the
average percentage increase in earnings for service industries during
such period determined by reference to the service industries indicator
in the Average Earnings Index for All Employees In Main Industrial
Sectors currently published by HMSO in the Employment Gazette or in the
event such index is no longer published in such form or by HMSO, any
replacement or alternative index therefor which is appropriate in the
circumstances;
"Required Adjustment" means the aggregate cost of all adjustments taken
into account by the Settlement System Administrator during any
Accounting Period in order to give effect to any increase in revenue
expenditure required to be made by the Settlement System Administrator
arising from changes to be made to the Settlement System, the Hardware
or Software or in any other respect, in any such case as agreed from
time to time by the Executive Committee with the Settlement System
Administrator (and, in default of agreement, the dispute shall be
referred to arbitration in accordance with Clause 83);
"Revenue Base" means, in respect of any Accounting Period:-
(i) the Cost Base for the immediately preceding Accounting Period
as identified by the Statement of Costs for the immediately
preceding Accounting Period submitted pursuant to Section 1.4
of Part B; plus
(ii) Value For Money Audit Adjustments made during such Accounting
Period; plus
(iii) Required Adjustments made during such Accounting Period; plus
(iv) Depreciation in such Accounting Period; Plus
(v) Efficiencies which are permitted to be included in any
Statement of Costs pursuant to Section 3.6 of Part C; plus
(vi) a sum equal to that percentage which is the Rate of Inflation
for such Accounting Period of the aggregate of the amounts
referred to in (i) to (iii) (inclusive) of this definition;
plus
(vii) any other costs or expenses which are beyond the control of
the Settlement System Administrator, in any such case as
agreed from time to time by the Executive Committee with the
Settlement System Administrator (and, in
263
default of agreement, the dispute shall be referred to
arbitration in accordance with Clause 83);
"Second Tier System" means any Metering System from which the
Settlement System Administrator or any Second Tier Agent is required to
collect, aggregate, adjust or transmit date for the purposes of a
supply pursuant to a Second Tier Supply Licence;
"Second Tier Suppliers' System Charge" means the amount determined by
the Executive Committee for the purposes of Section 6.3 of Part C;
"Specified Area" means an area of the Settlements Business in respect
of which a Value For Money Audit may be performed, being any one of the
following:-
(i) data acquisition - Generators,
(ii) data acquisition - Suppliers,
(iii) production computer facilities,
(iv) standby computer facilities,
(v) Settlement System development,
(vi) client interface - electronic mail/reporting,
(vii) support activities, that is, any other activities not referred
to above,
and any category of expenditure included in the most recent Budget or
Statement of Costs;
"Statement of Charges" means the statement of charges required to be
submitted by the Settlement System Administrator pursuant to Section
1.11 of Part B in the form or substantially in the form set out in Part
H or such other form as the Executive Committee and the Settlement
System Administrator may agree showing the total charges to be made by
the Settlement System Administrator on all Pool Members in accordance
with Part C;
"Statement of Costs" means the statement of costs required to be
submitted by the Settlement System Administrator pursuant to Section 1
of Part B setting out the actual and accrued expenditure incurred by
the Settlement System Administrator in any period which shall be
substantially in the form set out Part G or such other form as the
Executive Committee and the Settlement System Administrator may agree;
264
"Supplier's System Charge" means the amount determined by the Executive
Committee in accordance with the provisions of Section 6.4 of Part C;
"Total Operating Costs" means, in respect of any Accounting Period or
part thereof:-
(i) the total expenditure properly incurred or accrued by or on
behalf of the Settlement System Administrator in operating the
Settlements Business in such period or part thereof (other
than those referred to in (ii) and (iii) below); plus
(ii) all Depreciation in such period on all assets owned or
employed by the Settlement System Administrator in the
Settlements Business; plus
(iii) all other expenditure properly incurred or accrued during such
period which, under this Schedule, is permitted to be included
in any Statement of Costs or required to be dealt with in
accordance with the Accounting Procedure;
"Total Second Tier System Charges" means, in respect of any Specified
Accounting Period (as defined in Section 6.1 of Part C), the aggregate
of the costs, expenses and charges incurred by all Second Tier Agents
in respect of the relevant Specified Accounting Period and relating to
the collection, aggregation. adjustment and transmission of data from
Second Tier Systems of when the collection, aggregation, adjustment and
the transmission of data from Second Tier Systems is performed by the
Settlement System Administrator the costs, expenses and charges
directly incurred by the Settlement System Administrator (including,
for the avoidance of doubt, the costs described in Clause 60.16.10 and
Clause 60.17.7) plus the deficit (if any) or (as the case may be) less
the surplus (if any) in the amount of Total Second Tier System Charges
recovered for the immediately preceding Specified Accounting Period
carried forward in accordance with the provisions of Section 6.6 of
Part C;
"Total Sum Due" means, in respect of any Accounting Period, the total
aggregate amount chargeable by the Settlement System Administrator in
accordance with Section 2.1 or 3.2 of Part C;
"Value For Money Audit" means an independent appraisal of the
performance of management in seeking to secure economy, efficiency and
effectiveness in the use of resources at its disposal (but not any
appraisal of policy objectives) carried out in accordance with the most
recently published auditing guideline on value for money audits
published by the Institute of Chartered Accountants in England and
Wales; and
"Value For Money Audit Adjustments" means the aggregate value of all
changes in the Cost Base required to be taken into account by the
Settlement System Administrator during any Accounting Period in order
to give effect to the conclusions resulting from a Value For Money
Audit commissioned pursuant to Section 2.2.2 of Part B, if necessary,
as resolved pursuant to Section 2.2.7 of Part B.
265
1.2 Interpretation: in this Schedule, except where the context otherwise
requires, references to a particular Appendix, Part, Section,
sub-section, paragraph or sub-paragraph shall be a reference to that
Appendix or Part of this Schedule or, as the case may be, that Section,
sub-section, paragraph or sub-paragraph of the relevant Part.
PART B
The Provision of Financial Information
1. BUDGETS, STATEMENTS OF COSTS AND STATEMENTS OF CHARGES
Budgets
1.1 Budgets: not earlier than six nor later than three months prior to the
first day of each Accounting Period (other than the first) the
Settlement System Administrator shall prepare and submit to the
Executive Committee a Budget for such Accounting Period. Such Budget
shall be indicative only but prepared on a best estimate basis.
1.2 Contents of Budgets: each Budget (other than the first) shall compare
each item or category of budgeted expenditure shown therein with the
forecast expenditure in respect of such item or category for the
remainder of the then current Accounting Period and report any salient
differences between any such item or category for the remainder of the
then current Accounting Period and report any salient differences
between and such forecast expenditures and the budgeted expenditure in
respect of each such item or category and the budgeted expenditure in
respect of each such item or category in the immediately preceding
Budget.
1.3 Form of Budgets: each Budget shall be substantially in the form of that
set out in Part F (or in such other form as the Settlement System
Administrator and the Executive Committee may from time to time agree.
Statement of Costs
1.4 Statements of Costs: no later than one month following the date in any
Accounting Period of the publication of the audited accounts for the
Settlements Business for the previous Accounting Period, the Settlement
System Administrator shall prepare and submit to the Executive
Committee and all Pool Members a Statement of Costs for such previous
Accounting Period. The audited accounts of the Settlement System
Administrator and the auditors' management letter, to the extent it
related to the economy, efficiency and effectiveness of the Settlement
System Administrator in carrying out its duties, shall accompany each
Statement of Costs for each entire Accounting Period.
266
1.5 Form of Statement of Costs: the Statement of Costs for any Accounting
Period shall attribute actual and accrued expenditure for such period
against, inter alia, each of the categories and sub-categories set out
in the corresponding Budget for such Accounting Period.
1.6 Accompanying Report: each Budget and Statement of Costs for an entire
Accounting Period submitted to the Executive Committee and, in the case
of the Statement of Costs, Pool Members pursuant to Section 1.1 or 1.4
shall be supported by a written report of the Settlement System
Administrator commenting in reasonable detail upon the matters
comprised in the categories of expenditure included in such Budget or
Statement of Costs drawing attention to and giving reasons for any
unusual commitment or item of expenditure proposed to be incurred or
which had been incurred and, in the case of a Statement of Costs,
explaining the difference (if material) between:-
1.6.1 the amount set against each item or category therein; and
1.6.2 the amount set against each corresponding item or category in
the immediately preceding Budget.
1.7 Quarterly Statement of Costs: the Settlement System Administrator
shall, during the Initial Period, issue Statements of Costs on a
quarterly basis to Pool Members and the Executive Committee. Each such
quarterly Statement of Costs shall include a forecast of commitments
and expenditure in respect of each item or category for the entire
current Accounting Period based (where appropriate) on actual and
accrued commitments and expenditure already incurred in such Accounting
Period.
1.8 Basis of preparation: all Statements of Costs other than a Statement of
Costs in respect of an entire Accounting Period shall be unaudited but
prepared on a best estimates basis.
1.9 Six-monthly Statement of Costs: the Settlement System Administrator may
and shall, if so requested by the Executive Committee, during the
Post-Initial Period, issue to Pool Members a Statement of Costs every
six months. A Statement of Costs for six months of any Accounting
Period shall attach a forecast of commitments and expenditure in
respect of each item or category for the entire current Accounting
Period based (where appropriate) on actual and accrued commitments and
expenditure already incurred in such Accounting Period.
1.10 Accounting Practices: each Budget and Statement of Costs shall be
prepared on the basis of the accounting principles and practices used
to draw up the most recent audited accounts of the Settlement System
Administrator and consistently applied. If any Statement of Costs for
an entire Accounting Period is not prepared on such basis, the
Settlement System Administrator shall prepare and submit to the
Executive
267
Committee and all Pool Members a pro-forma set of audited accounts of
the Settlement System Administrator for such entire Accounting Period
which is prepared on the basis of the accounting principles and
practices used to prepare the relevant Statement of Costs. Any changes
in the accounting principles and practices or their method of
application used to prepare audited accounts of the Settlement System
Administrator shall be noted in the next following Budget or Statement
of Costs, as the case may be.
1.11 Statement of Charges: a Statement of Charges shall accompany each
Statement of Costs.
1.12 Bad debts: the total cost of any bad debts of the Settlement System
Administrator arising in any Accounting Period may be taken into
account by the Settlement System Administrator in its Statement of
Costs for such Accounting Period or any subsequent Accounting Period
and accordingly recovered as part of Total Operating Costs or Revenue
Base for any such Accounting Period.
2. REVIEWS AND AUDITS
2.1 Review: at the written request of the Executive Committee, the
Settlement System Administrator shall review with the Executive
Committee the Budget for the forthcoming Accounting Period or any
Statement of Costs. The Settlement System Administrator will, if
requested by the Executive Committee, submit a revised Budget,
following any such review taking into account changes requested by the
Executive Committee.
2.2 Audits:
2.2.1 the Settlement System Administrator shall, upon written
request of the Executive Committee, review with the Executive
Committee, any Specified Area with a view to agreeing whether
the Specified Area represents value for money to Pool Members
in terms of economy, efficiency and effectiveness in the use
of the resources available to the operation of the Settlement
System by the Settlement System Administrator.
2.2.2 If, in respect of any Specified Area which is the subject of
review pursuant to Section 2.2.1, agreement on any of the
matters referred to in Section 2.2.1 cannot be reached between
the Settlement System Administrator and the Executive
Committee within three months after the Executive Committee
having first made a request in respect of such Specified Area
pursuant to Section 2.2.1 (or such longer period as the
Settlement System Administrator and the Executive Committee
may agree), the Executive Committee may require an independent
firm of Chartered Accountants of international repute (which
may be the Pool Auditor - but not the same person or persons
within
268
such firm) to conduct a Value For Money Audit in respect of
the Specified Area and to report in writing to the Executive
Committee and the Settlement System Administrator. The terms
of engagement (including the objectives and scope of the work
to be performed and the form of report to be issued) for any
such Value For Money Audit shall be set by the Executive
Committee in accordance with this Schedule and in consultation
with the Settlement System Administrator. The firm conducting
any Value For Money Audit shall be required to owe a duty of
confidentiality to the Settlement System Administrator except
to the extent necessary to conduct such Value For Money Audit
provided that nothing in this Section 2.2.2 shall prevent,
restrict or qualify the disclosure to Pool Members or the
Executive Committee in such report of such information as
ought reasonably to be disclosed.
2.2.3 The Executive Committee shall not be entitled to require a
Value for Money Audit unless and until:-
(a) the Executive Committee shall have given the
Settlement System Administrator at least one month's
notice of its intention to commission such Value For
Money Audit and the scope thereof; and
(b) the Settlement System Administrator shall within that
period either:-
(i) have failed to prepare and submit to the
Executive Committee detailed proposals for
the implementation of a cost-efficiency
programme in respect of the Specified Area
proposed to be the subject of such Value For
Money Audit; or
(ii) have submitted such detailed proposals or
notified the Executive Committee that no
such cost-efficiency programme is
appropriate, and the Executive Committee
shall have notified the Settlement System
Administrator that it rejects such detailed
proposals or (as the case may be) the
Settlement System Administrator's
notification that a cost-efficiency
programme is not appropriate.
2.2.4 No more than two Value For Money Audits shall be performed in
any Accounting Period. No more than one Value For Money Audit
shall be performed in respect of the same Specified Are in any
period of three consecutive Accounting Periods. A Value For
Money Audit may only be performed in respect of a Specified
Area and may not be performed on the Settlements Business on a
general basis or in respect of Bought-in Supplies.
269
2.2.5 The Settlement System Administrator shall be given the
opportunity to examine and comment on the report in respect of
any Value For Money Audit before it is submitted in final
form. Such final form shall, if the auditor commission to
carry out the Value For Money Audit shall think fit, take into
consideration the comments of the Settlement System
Administrator and otherwise include an indication of the
response and proposed action of the Settlement System
Administrator.
2.2.6 Upon agreement being reach as described in Section 2.2.1 or
upon receipt of a report pursuant to Section 2.2.2, the
Settlement System Administrator shall (if so required by and
in consultation with the Executive Committee) give effect to
such agreement or (as the case may be) the conclusions, if
any, set out in such report as soon as is reasonably
practicable following the date of such agreement or report.
2.2.7 If the Settlement System Administrator shall in good faith
consider the conclusions in any report referred to in Section
2.2.2 to be incorrect or inaccurate or any recommended
remedial action impractical or inappropriate the same shall be
referred for resolution to arbitration in accordance with
Clause 83.
2.3 Access: for the purposes of any such report as if referred to in
Section 2.2.2 the Settlement System Administrator shall permit the
relevant auditor access to its company books, accounts and vouchers and
the relevant auditor shall be entitled to require from the Settlement
System Administrator's officers such information and explanations as
are necessary for the performance of the Value For Money Audit (but,
for the avoidance of doubt, the auditor shall not have access to any
data used, information held or records kept in relation to any Pool
Member without such Pool Member's prior written consent).
3. AUDITORS' OPINION
The Statement of Costs in respect of an entire Accounting Period to be
sent to the Executive Committee pursuant to Section 1.4 shall be
accompanied by a report from the auditors of the Settlement System
Administrator, considering whether, in such auditors' opinion:-
(a) the Statement of Costs is in agreement with the underlying
books and records of the Settlement System Administrator; and
(b) Total Operating Costs and Depreciation have been properly
extracted from the audited financial statements.
270
Such auditors' report shall also contain such other matters as the
Executive Committee may agree with the auditors of the Settlement
System Administrator.
4. ACCOUNTING PERIOD
The first Accounting Period shall run from (and including) 31st March,
1990 to (and including) 31st March, 1991. Thereafter, unless agreed by
the Settlement System Administrator and the Executive Committee each
Accounting Period shall be for a period of 12 months. In the event that
the Settlement System Administrator wishes to change its accounting
reference date it shall give due notice thereof to the Executive
Committee which shall agree to enter into an amending agreement to this
Agreement in order to give effect to the same at the cost and expenses
of the Settlement System Administrator.
271
PART C
The Settlement System Administrator's Charges
1. GENERAL
The Settlement System Administrator shall be entitled to recover from
all Pool Members the charges set out in this Part C in respect of its
operation of the Settlement System.
2. THE INITIAL PERIOD
2.1 Initial Period - Annual Charges: in respect of each Accounting Period
which begins during the Initial Period, the Settlement System
Administrator shall be entitled to recover from Pool Members annual
charges equal to the aggregate of the following amounts:-
2.1.1 Total Operating Costs as identified by the Statement of Costs
of such period submitted pursuant to Section 1.4 of Part B;
2.1.2 the Margin; and
2.1.3 the Capital Charge.
2.2 Recovery of Charges: the due proportion (determined in accordance with
Section 2.4) of the annual changes of the Settlement System
Administrator referred to in Section 2.1 payable by each Pool Member
for each Accounting Period in the Initial Period shall be recovered by
monthly payments in advance from each Pool Member or, where the
Settlement System Administrator and the Pool Member otherwise agree,
semi-annually in advance (calculated on a best estimate and reasonable
basis to be one twelfth or, as the case may be, one half of the annual
charges payable by such Pool Member by reference to the most recent
Statement of Costs). Except for the first month or, as the case may be,
other period the Settlement System Administrator shall advise each Pool
Member of such amount by invoice despatched to each Pool Member
approximately 15 days prior to the first day of each month or other
period. Such invoice shall be paid no later than the first day of such
month or such other period. In the case of the first month or, as the
case may be, other period, each Pool Member shall pay the amount
advised in the relevant invoice within 15 days after the invoice date.
Each Pool Member shall pay all amounts due hereunder in sterling in
cleared funds in full without set off or counterclaim, withholding or
deduction of any kind whatsoever but without prejudice to any other
remedy. All charges are exclusive of United Kingdom Value Added Tax
which shall be added to such charges, if applicable. In the event of
any dispute regarding charges in any month, no Pool Member may withhold
payment of any invoiced amount but may refer such dispute to
arbitration in accordance with Clause 83 following payment.
272
2.3 Interest on non-payment: if any amount due to the Settlement System
Administrator is not received on the due date the Pool Member required
to pay such amount shall pay interest on the Settlement System
Administrator on such amount from and including the date of default to
the date of actual payment (as well after as before judgment) at the
rate which is 4 per cent. per annum above the Base Rate from time to
time during each period of default of National Westminster Bank PLC.
2.4 Payment of Charges: during the Initial Period each Pool Member shall
pay its due proportion of the Settlement System Administrator's charges
for each Accounting Period determined in accordance with Part D.
2.5 Amount of Charges: the amount of each such payment during the Initial
Period shall be estimated initially by reference to the Budget and
thereafter adjusted as required by this Part C. The Settlement System
Administrator shall adjust the amount of each such payment by reference
to the most recent Statement of Costs (whether quarterly or otherwise)
and so as to take into account Total Operating Costs, the Margin
thereon and the Capital Charge during the previous quarter and
anticipated costs in respect of the same during the current quarter and
shall recover from, or as appropriate, credit to each Pool Member its
due proportion of the difference between actual and anticipated Total
Operating Costs, the Margin thereon and the Capital Charge and payments
received in respect of such costs, margin and charges in each case for
the previous and the current quarter. Such recovery or credit shall
take place by reference to an adjustment to each Pool Member's charges
for the current quarter.
3. POST-INITIAL PERIOD
3.1 Post-Initial Period - Annual Charges: in respect of each Accounting
Period which begins after the Initial Period, the Settlement System
Administrator shall be entitled to recover the charges set out in
Section 3.2.
3.2 Amount of Charges: the charges referred to in Section 3.1 shall be the
aggregate of:-
3.2.1 the Revenue Base and the Margin for the relevant Accounting
Period (as identified by the Statement of Costs for such
Accounting Period to be submitted pursuant to Section 1.4 of
Part B); and
3.2.2 the Capital Charge for such Accounting Period.
3.3 Recovery of Charges: annual charges for the Post-Initial Period shall
be recovered mutatis mutandis for Pool Members, in accordance with
Section 2.2 with the substitution of the reference to "Section 2.1" by
"Section 3.2".
3.4 Interest on non-payment: the provisions of Section 2.3 shall apply to
any amount due to the Settlement System Administrator which is not
received on the due date.
273
3.5 Adjustment of Charges: the Settlement System Administrator may adjust
(either up or down) its charges in any Accounting Period during the
Post-Initial Period within one month following the publication of a
Statement of Costs. Such adjustment may only take into account:-
3.5.1 the Revenue Base, the Margin and Capital Employed for the
immediately preceding Accounting Period; and
3.5.2 the Settlement System Administrator's best estimate of its
charges for the current Accounting Period taking into account
the Cost Base for the immediately preceding Accounting Period.
That part of the adjustment referred to in Section 3.5.1 shall be made
only in respect of the charges applicable to persons who were Pool
Members during the immediately preceding Accounting Period and shall
take into account changes in Pool Membership during such preceding
Accounting Period.
3.6 Sharing of Efficiency: the Settlement System Administrator shall be
entitled to the benefit of all Efficiencies and, accordingly, to charge
Pool Members the amount of all Efficiencies by including them in
Budgets and Statements of Costs during the Post- Initial Period in the
following manner. The amount of any Efficiency arising in any
Accounting Period shall be identified in the Statement of Costs for
such Accounting Period submitted pursuant to Section 1.4 of Part B and
shall be taken into account in the Statement of Costs for the two
successive Accounting Periods thereafter. Accordingly, the amount of
any Efficiency may be included in any Statement of Costs for the two
Accounting Periods following that in which the Efficiency is
identified. In the Statement of Costs for the third consecutive
Accounting Period and all following Accounting Periods thereafter the
amount of such Efficiency shall be eliminated.
4. CORPORATE OVERHEAD CHARGES AND PURCHASES
4.1 Corporate Overhead Charges: the Settlement System Administrator may
take into account in any Budget or Statement of Costs (and consequently
its charges to Pool Members) all corporate overhead charges payable by
the Settlement System Administrator to its immediate holding company of
any other affiliate which is solely a property holding company provided
such corporate overhead charges are reasonable and in due proportion to
the corporate overhead charges payable by other affiliates of the
Settlement System Administrator or divisions of such affiliates as
reported upon by the auditors of the Settlement System Administrator.
4.2 Goods of Services: purchases of goods or services from affiliates of
the Settlement System Administrator shall be on arm's length terms and
included in Total Operating Costs or Revenue Base. If requested by the
Executive Committee, the Settlement
274
System Administrator shall procure its auditors to confirm that such
purchases have been contracted and paid for on an open market value
basis.
5. MISCELLANEOUS CHARGES AND FUEL SECURITY COSTS
5.1 Accounting Procedure: for the purposes of this Agreement, all costs,
expenses and other amounts required by this Agreement (or any other
agreement or document executed or prepared pursuant to this Agreement
and for this purpose approved by the Executive Committee) to be dealt
with "in accordance with the Accounting Period" shall be deemed to be a
cost and expense of the operation of the Settlement System and shall be
recovered by the Settlement System Administrator as part of Total
Operating Costs or Revenue Base save that, where the same are treated
as Revenue Base, they shall be regarded as costs beyond the control of
the Settlement System Administrator which may recover the same in full
from Pool Members who shall be obliged to pay the actual amount of such
costs and expenses.
5.2 Fuel Security: except to the extent recoverable under any other
provision of this Schedule, any additional costs necessarily incurred
by the Settlement System Administrator in running the Settlements
Business during a Security Period shall be regarded as beyond the
control of the Settlement System Administrator, which may recover the
same in full from Pool Members provided such costs have been verified
as additional costs by the auditors of the Settlement System
Administrator. Pool Members shall be obliged to pay the actual amount
of such costs and expenses.
5.3 No Liability to finance: the Settlement System Administrator shall not
be required to finance the Electricity Arbitration Association or the
Executive Committee.
6. SECOND TIER SYSTEM CHARGES
6.1 The provisions set out in this Section 6 of Part C and Section 1.3.3 of
Part D of this Schedule (prior to their amendment and restatement with
effect from midnight on 31st March, 1994) and the definitions of
"Second Tier Site" (now "Second Tier System") and "Total Second Tier
System Charges" (prior to their amendment and restatement with effect
from midnight on 31st March, 1994) shall continue to apply but only in
respect of the Accounting Period beginning on 1st April, 1993. The
following provisions of this Section 6 (as amended and restated with
effect from midnight on 31st March, 1994) shall apply in respect of
each of the Accounting Periods beginning on 1st April, 1994, 1st April,
1995, 1st April, 1996 and 1st April, 1997 (each a "Specified Accounting
Period").
6.2 In respect of each of the Specified Accounting Periods the Settlement
System Administrator shall be entitled to recover as part of Total
Operating Costs or Revenue Base the Total Second Tier System Charges
for the Specified Accounting Period.
275
6.3 Subject to Section 6.6, the Second Tier Suppliers' System Charge for a
Specified Accounting Period shall be determined by the Executive
Committee as the amount per annum to be charged to each Second Tier
Supplier in respect of each Second Tier System supplied by such
Supplier.
6.4 Subject to Section 6.6, the Suppliers' System Charge for a Specified
Accounting Period shall be determined by the Executive Committee as the
amount per annum to be charged to each Supplier (other than a Second
Tier Supplier) in respect of each Non-Second Tier System in that
Supplier's authorized area.
6.5 The second tier system charge payable by a Supplier in respect of each
calendar month in a Specified Accounting Period (the "Supplier's Second
Tier Charge") shall be calculated as follows:-
6.5.1 in respect of each Second Tier Supplier, in accordance with
the following formula:-
Second Tier Suppliers' System Charge x NOSP
------------------------------------
12
where NOSP is the total number of Second Tier Systems supplied
by such Supplier at the beginning of the relevant calendar
month;
6.5.2 in respect of each Supplier (other than a Second Tier
Supplier), in accordance with the following formula:-
Suppliers' System Charge x NMS
------------------------
12
where NMS is the total number of Non-Second Tier Systems in
that Supplier's authorized area as at the beginning of that
month;
6.5.3 for these purposes, the numbers of Second Tier Systems and of
Non-Second Tier Systems as at the beginning of each calendar
month shall be as notified to the Settlement System
Administrator (who shall then notify the Director) by the
relevant Suppliers (the first such notifications to be made no
later than 1st May, 1994 and the Settlement System
Administrator being entitled, in the absence of any
notification to the contrary, to rely on the last such
notification and other information in its possession) and, in
the event of any dispute between the Parties, shall be as
determined by the Director (whose determination shall be final
and binding); and
276
6.5.4 only those Second Tier Systems in respect of which data
collection costs are incurred by Second Tier Agents or the
Settlement System Administrator shall be used in determining
the number of Second Tier Systems.
6.6 If in respect of any Specified Accounting Period (other than the one
beginning on 1st April, 1997) the aggregate of all second tier system
charges payable pursuant to Sections 6.5.1 and 6.5.2 and received by
the Settlement System Administrator is less than or (as the case may
be) more than the Total Second Tier System Charges for such Specified
Accounting Period the deficit or (as the case may be) the surplus shall
be carried forward to the immediately succeeding Specified Accounting
Period and shall be included in the calculation of the Total Second
Tier System Charges therefor, and in making any determination pursuant
to Section 6.3 or 6.4 the Executive Committee shall use its reasonable
endeavors to ensure that the aggregate of all second tier system
charges payable pursuant to Sections 6.5.1 and 6.5.2 in respect of that
immediately succeeding Specified Accounting Period will equal the
anticipated Total Second Tier System Charges therefor. There shall be
no carry forward of any such deficit or surplus arising in respect of
the Specified Accounting Period beginning on 1st April, 1997.
7. ALLOCATION OF CHARGES
7.1 Allocation: the Settlement System Administrator shall allocate its
charges amongst Pool Member in accordance with Part D.
7.2 New and Former Pool Members: any Pool Member which is a Pool Member for
part only of any Accounting Period shall pay charges on an interim
basis of such amount as the Executive Committee estimates to be
reasonable for such Accounting Period on the basis of the allocation of
charges set out in Part D. Adjustments to charges on all Pool Members
as a result of existing Pool Members leaving or new Pool Members
joining will be made following, and shall be set out in, the Statement
of Charges published for the relevant Accounting Period pursuant to
Section 1.11 of Part B whereupon the Pool Members and/or former Pool
Members shall be required to pay such additional amount or be entitled
to such reimbursement as may be determined in accordance with this
Agreement by an adjustment to charges in the then current Accounting
Period.
8. ADJUSTMENT TO MARGIN
The Parties acknowledge and agree that the Margin has been determined
by the Parties based upon:-
8.1 the Net Margin of the Settlement Business falling within the
range 15 to 20 per cent.; and
277
8.2 the Return on Capital Employed of the Settlements Business
falling within the range 15 to 20 per cent.; and
8.3 the accounts of the Settlement System Administrator being
prepared on the basis of the Historic Cost Convention.
For these purposes "Net Margin" means profit before interest and tax
divided by turnover and "Return on Capital Employed" means profit
before interest and tax divided by capital employed.
In the event that either of the factors in Section 8.1 and 8.2 should
fall outside its respective range or the factor in Section 8.3 should
change, the Executive Committee and the Settlement System Administrator
agree to meet to discuss the basis of the Margin and, if necessary, to
agree in good faith a revised Margin based upon the requirements of the
Settlements Business at such time. The Director shall be invited to
attend any such meeting.
During the Initial Period the Net Margin should not be taken into
account in determining whether the Margin should be adjusted.
9. CAPITAL EXPENDITURE
9.1 Capital Expenditure (1): the following provisions apply to Capital
Expenditure by the Settlement System Administrator in respect of the
Settlements Business:-
9.1.1 save as provided below, Capital Expenditure by the Settlement
System Administrator which may be recovered by Depreciation
charged to Pool Members shall require the prior approval of
the Executive Committee, such approval to take into account an
appropriate sharing of the Efficiencies arising from such
Capital Expenditure;
9.1.2 Capital Expenditure which may be recovered by Depreciation
charged to Pool Members specified in any Budget shall be
regarded as approved by the Executive Committee unless the
Executive Committee notifies the Settlement System
Administrator to the contrary within one month after receipt
of such Budget;
9.1.3 in any Accounting Period the Settlement System Administrator
may incur Capital Expenditure which may be recovered by
Depreciation charged to Pool Members without the need to
consult or obtain the approval of the Executive Committee up
to a maximum of the Individual Limit for each item of Capital
Expenditure and a maximum of the Overall Limit for all items
of Capital Expenditure and in the event of the Settlement
System Administrator incurring
278
such Capital Expenditure, it shall notify the Executive
Committee as soon as practicable thereafter;
9.1.4 the Settlement System Administrator shall be entitled to incur
Capital Expenditure which may be recovered by Depreciation
changed to Pool Members of the any amount without the need to
obtain the approval of the Executive Committee, in
circumstances where:-
(a) the Settlement System Administrator would be in
breach of its duty under the NGC Transmission License
to implement, maintain and operate a Settlement
System unless such Capital Expenditure were incurred;
and
(b) it has not reached agreement with the Executive
Committee on such Capital Expenditure within a
reasonable period of time.
9.2 Capital Expenditure (2): Capital Expenditure not falling within Section
9.1.1 to 9.1.4 may not be charged as Depreciation to Pool Members.
279
PART D
Allocation of Charges
1. THE SETTLEMENT SYSTEM ADMINISTRATOR'S CHARGES
1.1 Total Sum Due: in respect of each Accounting Period, the Total Sum Due
shall be allocated amongst Pool Members in accordance with the
following provisions of this Part D.
1.2 Payment of Total Sum Due: each Pool Member shall be obliged to pay the
amount allocated to it in accordance with this Part D. The total
aggregate amount allocated to all Pool Members in respect of any
Accounting Period shall equal the Total Sum Due in respect of such
Accounting Period.
1.3 Allocation of Total Sum Due: the Total Sum Due in respect of each
Accounting Period shall be allocated amongst Pool Members in the
following manner:-
1.3.1 first, in order to recover discrete costs referable to each
Pool Member during such Accounting Period:-
(a) the costs, as reasonably determined by the Settlement
System Administrator, associated with any change to
the Software necessitated by such Pool Member's
request for data from Settlement additional to that
which is generally provided to other Pool Members of
the same class or for reporting of data in a format
different from that in which data is generally
provided to other Pool Members of the same class
(which costs shall, in the first Accounting Period
that they are charged to such Pool Member, have added
to them a single lump sum payment for maintenance
equal to 40 per cent. of the costs of such change, as
reasonably determined by the Settlement System
Administrator) shall be allocated to such Pool
Member; and
(b) the costs for the use by such Pool Member of
electronic mail, the provision and maintenance of
communication links from Outstations and any other
services procured or provided by the Settlement
System Administrator which are directly referable to
such Pool Member shall, as far as practicable, be
allocated to such Pool Member;
1.32. secondly:-
(a) each Generator shall pay ___500 (or such other amount
as the Executive Committee and the Settlement System
Administrator may agree) for
280
each of its Generating Units in respect of which
standing data has been submitted;
(b) each Pool Member shall pay 750 (or such other amount
as the Executive Committee and the Settlement System
Administrator may agree) for each metering System in
respect of which it is the Registrant;
(c) subject as provided in paragraphs (d) to (h)
inclusive below, each Pool Member shall pay an annual
membership fee as follows:-
Category Fee
-------- ---
(A) A Supplier with a maximum demand
at any time during such
Accounting Period (as reasonably
determined by the Executive
Committee) of less than 200MW or
a Generator with aggregate
Registered Capacity of less than
50MW (other than a Supplier or
Generator referred to in (B)
below)
(pound)9,000
(B) A Supplier with a maximum demand
at any time during such
Accounting Period (as reasonably
determined by the Executive
Committee) of less than 200MW or
a Generator with aggregate
Registered Capacity of less than
50MW, in either case which
requires to have delivered to it
only its own trading information (pound)2,500
(ii) A Supplier with a maximum demand
at any time during such
Accounting Period (as reasonably
determined by the Executive
Committee) of 200MW or more up to
(but excluding) 2000MW or a
Generator with aggregate
Registered Capacity of 50MW or
more up to (but excluding) 1000MW (pound)20,000
(iii) Large
281
A Supplier with a maximum demand
at any time during such
Accounting Period (as reasonably
determined by the Executive
Committee) of 2000MW or more or a
Generator with aggregate
Registered Capacity of 1000MW or
more (pound)45,000
(d) any Pool Member which is both a Generator and a
Supplier shall pay only one annual membership fee,
being that fee which is the greater of its annual
membership fee as a Generator and its annual
membership fee as a Supplier (and, if both are the
same amount, such Pool Member shall pay only its
annual membership fee as a Generator): such fee shall
continue to be payable regardless of any change
during the relevant Accounting Period in the
capacity(ies) in which such Pool Member participates
as a Pool Member;
(e) unless otherwise resolved by the Executive Committee
with respect to the relevant Pool Member, a Pool
Member with no demand or generation shall not pay any
membership fee and, if the Executive Committee shall
so resolve, shall pay only that annual membership fee
referable to a Pool Member falling within the
relevant sub-category of paragraph (c)(i) above;
(f) if, in its reasonable opinion, the Executive
Committee considers:-
(i) any Pool Member (not being a Pool Member
referred to in paragraph (e) above) to be
insignificant in terms of generation or
demand, it may waive the membership fee for
such Pool Member until further notice; and
(ii) it inequitable or otherwise inappropriate to
levy the full amount of the annual
membership fee that would otherwise be
payable by any Pool Member, it may waive all
or part of such fee on such terms and for
such period(s) as it reasonably sees fit;
(g) (i) any Pool Member falling within sub-category
(B) of paragraph (c)(i) above which wishes
to receive data by electronic mail shall be
required to pay an additional membership fee
of (pound)800;
(ii) any Pool Member which wishes to receive data
by courier shall be required to pay an
additional membership fee of (pound)1,000;
282
(h) the Executive Committee may from time to time amend
the categories of membership and the fees (with the
consent of the Settlement System Administrator, such
consent not to be unreasonably withheld or delayed);
(i) the annual charges referred to in this Section 1.3.2
shall be adjusted in relation to each Pool Member,
Generator or Supplier, as the case may be, by
reference to the number of days during each
Accounting Period for which such Party was a Pool
Member and (where appropriate) the number of
Generating Units or Metering Systems allocated to it
during such period;
1.3.3 thirdly, in respect of a Specified Accounting Period (as
defined in Section 6.1 of Part C), each Pool Member which is a
Supplier shall pay its Supplier's Second Tier Charge in
respect of each calendar month in such Accounting Period; and
1.3.4 fourthly, 100 per cent. of the balance of the Total Sum Due
during any Accounting Period not recovered pursuant to
Sections 1.3.1 or 1.3.2 shall be allocated amongst all Pool
Members during each Quarter of such Accounting Period by
reference to the Total Sum Due attributed to such Quarter by
the Settlement System Administrator and Contributory Shares of
each Pool Member during such Quarter.
1.4 Prima facie evidence: the Settlement System Administrator's
determination of the allocation of all costs during any Accounting
Period shall, in the absence of manifest error, be prima facie evidence
thereof.
1.5 Contributory Shares: the Settlement System Administrator shall advise
each Pool Member of its Contributory Share and how such Contributory
Share is calculated in the Statement of Charges sent to such Pool
Member.
283
PART E
[Not Used]
284
PART E
Pro-forma Budget
Estimated Proposed
Out-turn Budget Variance Schedule
-------- ------ -------- --------
Production
Development
Capitalized
Second Tier
Chief Executive
Arbitration Association
Administration Costs
Depreciation & Asset
Write Off
-------- ------ --------
Total Cost
-------- ------ --------
Capital
======== ====== ========
285
SCHEDULE 1
Reference in
Forecast Supporting
Out-turn Budget Variance Commentary
-------- ------ -------- ----------
Staff Costs
Software Maintenance
Hardware Maintenance
NGC Recharges
Computer Consumables
Communication Links
Professional Indemnity
Consultancy
External Auditor
Other
Sundry Income
---------- ---------- ----------
Total Production Costs
Capital
========== ========== ==========
286
SCHEDULE 2
Reference in
Supporting
Forecast Budget Variance Commentary
-------- ------ -------- ----------
Staff Costs
Hardware Maintenance
Computer Consumables
Property Costs
Consultancy
Other Costs
Capitalized Costs
---------- ---------- ----------
Total Development Costs
========== ========== ========== TOTAL RULES
287
SCHEDULE 3
Reference in
Supporting
Forecast Budget Variance Commentary
-------- ------ -------- ----------
Eastern Electricity Board plc
East Midland plc
London Electricity plc
MANWEB plc
Midlands Electricity plc
Northern Electricity
NORWEB plc
SEEBOARD plc
South Wales Electricity plc
South Western Electricity plc
Yorkshire Electricity
---------- ---------- ----------
Total Second Tier Costs
---------- ---------- ---------- TOTAL RULES
288
SCHEDULE 4
Forecast Budget Variance
-------- ------ --------
Staff Costs
Accommodation
Office Services
Professional Services
Consultancy
Income ( ) ( )
Total Chief Executive's
Executive Committee
Expenses
Consultancy
Sub-Committees
Expenses
Consultancy
Total Committee Costs
Total Pool Executive Costs
289
SCHEDULE 5
Reference in
Supporting
Forecast Budget Variance Commentary
-------- ------ -------- ----------
Staff Costs
Property Costs
Building Maintenance
Other Services
Consultancy Costs
Insurance & Legal Costs
Corporate Overheads
---------- ---------- ----------
Total Administration Costs
========== ========== ========== TOTAL RULES
290
PART G
Pro-forma Statement of Costs
Actual Out-turn
Budget for previous for previous
Accounting Period Accounting Period
----------------- -----------------
1. Revenue
(a) Process Costs Internal
Computer Maintenance
Software Maintenance
Process Consumables
Communication Links
Other
(b) Process Costs External (NGC recharges)
CDCS
Porthole
Metering Collection etc.
SMP & LOLP Broadcast
SID Operation
Consultancy
(c) Process Costs External
Insurance
SMP & LOLP Broadcast
SID Operation
Consultancy
(d) Business Costs Internal
Salaries Process
Salaries Development
Property
Insurance
Consultancy
Other
291
Actual Out-turn
Budget for previous for previous
Accounting Period Accounting Period
----------------- -----------------
(e) Business Costs External
Corporate Overhead
Other
(f) Other Payments
Depreciation
Interest
(g) Other Revenue Costs
External Auditor
Contingency Provision
Other
2. Capital
(a) Schemes
as approved
(b) Global
(as approved in excess of (pound)250,000 and other)
3. Executive Committee Costs
Disputes Procedure
Executive Expenses
4. Revenue Base
5. Capital Employed
6. Capital Charge
7. Handling Charge
8. Efficiencies
292
Actual Out-turn
Budget for previous for previous
Accounting Period Accounting Period
----------------- -----------------
9. Margin
293
PART H
Pro-forma Statement of Costs
--------------------------------------------------------------------------------
Name Contributory Period to which Amount
Share charges relate
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
294
SCHEDULE 5
Form of Admission Application
The Executive Committee for the
Pooling and Settlement System in England and Wales
[Date]
Dear Xxx,
1. We [insert full legal name and address of registered/principal office of
applicant] refer to the Pooling and Settlement Agreement for the electricity
industry in England and Wales dated 30th March, 1990 (as amended, varied,
supplemented, modified or suspended, the "Pooling and Settlement Agreement").
2. Unless the context otherwise requires, words and expressions defined in the
Pooling and Settlement Agreement shall bear the same meanings respectively when
used herein.
3. We hereby apply to be admitted as an additional party to the Pooling and
Settlement Agreement pursuant to Clause 3 thereof. We wish to participate as a
[[Generator]/[Supplier]/[Externally Interconnected Party]]*.
4. We confirm that:-
(A)** (i) we have been granted and have in full force and
effect a Generation License or we have made and have
current an application for such a license; or
(ii) we are exempted from the obligation to hold a
Generation License by reason of an exemption under
section 5 of the Act; or
(iii) we have entered into an Interconnection Agreement
under which we will, subject to becoming a Pool
Member, have the right (whether alone or together
with others) then or at any time in the future to use
all or any part of an External Interconnection for
the delivery of electricity to the NGC Transmission
System; or
(iv) we are acting as the agent for a person generating or
proposing to generate electricity on terms whereby we
have the exclusive right to all the output of those
Generating Unit(s) of such person and in respect of
which we have been appointed agent;
295
(B) (i) we have been granted and have in full force and effect a
PES License or a Second Tier Supply License or we have made
and have current an application for such a license; or
(ii) we are exempted from the obligation to hold a PES
License or (as the case may be) a Second Tier Supply
License by reason of an exemption under section 5 of
the Act; or
(iii) we have entered into an Interconnection Agreement
under which we will, subject to alone or together
with others) then or at any time in the future to use
all or any part of an External Interconnection for
the taking of electricity from the NGC Transmission
System;
(C) (i) we are [or [________] (being our agent and a person which
the Executive Committee has confirmed in writing to us is
acceptable to the Executive Committee, a copy of which
confirmation is acceptable to the Executive Committee, a copy
of which confirmation is enclosed) is]* registered for United
Kingdom Value Added Tax purposes;
(ii) we have [or our agent has]* so arranged matters that
any payment receivable by us under or pursuant to the
Pooling and Settlement Agreement will constitute for
United Kingdom Value Added Tax purposes the
consideration for a taxable supply made in the United
Kingdom by us [or our agent]* as a taxable person in
the United Kingdom in the course of furtherance of a
business;
(iii) we have [or our agent has]* so arranged matters that
any payment required to be made by us under or
pursuant to the Pooling and Settlement Agreement will
constitute for United Kingdom Value Added Tax
purposes the consideration for a taxable supply made
in the United Kingdom to us [or our agent]*; and
(iv) in any case where any electricity has been or will be
generated or produced by us outside the United
Kingdom, we have [or our agent has]* so arranged
matters that any import thereof for the purposes of
or otherwise in connection with the Pooling and
Settlement Agreement will constitute for United
Kingdom Value Added Tax purposes an importation or
acquisition of goods solely by us [or our agent]* and
so not by any other Party.
(D) as a Party we shall accede to the Initial Settlement Agreement
in accordance with its terms.
296
5. We hereby represent and warrant to the Executive Committee (for itself and on
behalf of all the Parties) that:-
(A) we are duly organized and validly existing under the laws of
the jurisdiction of our organization or incorporation;
(B) We have the power to execute and deliver our Accession
Agreement and any other documentation relating to that other
agreements as are required thereby and to perform our
obligations hereunder or thereunder and we have taken all
necessary action to authorize such execution, delivery and
performance; and
(C) such execution, delivery and performance do not violate or
conflict with any law applicable to us, any provision of our
constitutional documents, any order or judgment of any court
or other agency of government applicable to us or any of our
assets or any contractual restriction on or affecting us or
any of our assets.
We confirm that these representations and warranties will also be true and
correct in all material respects at the date of our admission as a New Party.
6. We enclose the application fee of (pound)[________________].****
7. We accept and agree to be bound by the terms of Clause 3 of the Pooling and
Settlement Agreement.
Yours faithfully,
___________________________________________
duly authorized for and on behalf of
[insert full legal name of the New Party]
________________________________________________________________________________
* Complete/delete as appropriate.
** Include paragraph (A) if applying to be admitted as a Generator.
*** Include paragraph (B) if applying to be admitted as a Supplier.
**** Insert current application fee prescribed by the Executive Committee.
297
SCHEDULE 6
Form of Pool Membership Application
The Executive Committee for the
Pooling and Settlement System in England and Wales.
[Date]
Dear Xxx,
1. We [insert full legal name and address of registered/principal office of
applicant] refer to the Pooling and Settlement Agreement for the electricity
industry in England and Wales dated 30th March, 1990 (as amended, varied,
supplemented, modified or suspended, the "Pooling and Settlement Agreement").
2. Unless the context otherwise requires, words and expressions defined in the
Pooling and Settlement Agreement shall bear the same meanings respectively when
used herein.
3. We hereby apply to be admitted as a Pool Member pursuant to Clause 8.2 of the
Pooling and Settlement Agreement. We wish to participate as a
[[Generator]/[Supplier]/[and an External Pool Member]]*.
4. We confirm that:-
(A)**
(i) we have been granted and have in full force and
effect a Generation License; or
(ii) we are exempted from the obligation to hold a PES
License (as the case may be) a Second Tier Supply
License by reason of an exemption under section 5 of
the Act; or
(iii) we have entered into an Interconnection Agreement
under which we will, subject to becoming a Pool
Member, have the right (whether alone or together
with others) then or at any time in the future to use
all or any part of an External Interconnection for
the taking of electricity from the NGC Transmission
System;
298
(iv) we are acting as the agent for a person generating or
proposing to generate electricity on terms whereby we
have the exclusive right to all the output of those
Generating Unit(s) of such person and in respect of
which we have been appointed agent;
(B)*** (i) we have been granted and have in full force and
effect a PES License or a Second Tire Supply License;
or
(ii) we are exempted from the obligation to hold a PES
license or (as the case may be) a Second Tier Supply
License by reason of an exemption under section 5 of
the Act; or
(iii) we have entered into an Interconnection Agreement
under which we will, subject to become a Pool Member,
have the right (whether alone or together with
others) then or at any External Interconnection for
the taking of electricity from the NCG Transmission
System;
(C) with effect form the date of our admission as a Pool Member,
we will accede as a party to the Funds Transfer Agreement and
to the Deed to Indemnity in favor (inter alia) of the Chief
Executive in accordance with their respective terms;
(D) on or before our admission as a Pool Member, we will open a
Settlement Account and comply with all other applicable
requirements of Schedule 11 to the Pooling and Settlement
Account;
(E) (i) we are [or [___________] (being our agent and a
person which the Executive Committee has confirmed in
writing to us is acceptable to the Executive
Committee, a copy of which confirmation is enclosed)
is]* registered for United Kingdom Value Added Tax
purposes;
(ii) we have [or our agent has]* so arranged matters that
any payment receivable by us under or pursuant to the
Pooling and Settlement Agreement will constitute for
a taxable supply made in the United Kingdom by us [or
our agent]* as a taxable person in the United Kingdom
in the course of furtherance of a business;
(iii) we have [or our agent has]* so arranged matters that
any payment required to be made by us under or
pursuant to the Pooling and Settlement Agreement will
constitute for United Kingdom Value Added Tax
purposes for consideration for a taxable supply made
in the United Kingdom to us [or our agent]*; and
(iv) in any case where any electricity has been or will be
generated or produced by us outside the United
Kingdom, we have [or our agent has]* so arranged
matters that any import thereof for the purposes of
or otherwise in connection
299
with the Pooling and Settlement Agreement will
constitute for United Kingdom Value Added Tax
purposes an importation or acquisition of goods
solely by us [or our agent]* and so not by any other
Party;
(F)****
Option 1
We have entered into and have in full force and effect (or,
prior to our admission as a Pool Member, will enter into and
have in full force and effect) all appropriate Connection
Agreement;
-or-
Option 2
all appropriate Connection Agreement with [______________],
being the relevant Externally Interconnected Party, in
relation to [______________], being the relevant External
Interconnection, are in full force and effect.
5. We enclose:-
[insert details of evidence in support of fulfillment of the
other Pool Membership Conditions set out in Clause 8.3 of the
Pooling and Settlement Agreement].
Yours faithfully,
_______________________________________________
duly authorized for and on behalf of
[insert full legal name of the applicant]
________________________________________________________________________________
* Complete/delete as appropriate.
** Include paragraph (A) if applying to be admitted as a Generator.
*** Include paragraph (B) if applying to be admitted as a Supplier.
**** Include Option 2 if applying to be admitted as an External Pool
Member. Otherwise include Option 1.
300
SCHEDULE 7
Form of Escrow Agreement
THIS AGREEMENT is made on [_______________________], 1990
BETWEEN:-
(1) NGC SETTLEMENTS LIMITED (registered number 2444282) whose registered
office is situate at National Grid House, Xxxxxx Street, London SEI 9JU
for itself and on behalf of the Pool Member (as defined in the Pooling
and Settlement Agreement hereinafter referred to) acting through the
Executive Committee (as hereinafter defined) (the "Settlement System
Administrator" which expression shall include the Settlement System
Administrator's successors in title); and
(2) [___________________________]LIMITED (registered number
[________________]) whose registered office is situated at
[___________________________] (the "Custodian").
WHEREAS:-
(A) by a Pooling and Settlement Agreement (the "Pooling and Settlement
Agreement") details of which are set out in Schedule A the Settlement
System Administrator has agreed to act as Settlement System
Administrator and operate a settlements system requiring the use of
certain computer package(s) comprising computer programs and related
systems;
(B) certain technical information and documentation describing or otherwise
relating to the said computer programs and related systems is required
for the understanding, maintaining, modifying and correcting of the
said computer programs and related systems; and
(C) the Settlement System Administrator acknowledges that in certain
circumstances the Executive Committee may require possession of the
said technical information and documentation, up-to-date and in good
order
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement:-
"Director" means the Director General of Electricity Supply;
301
"Executive Committee" means the Executive Committee established under
the Pooling and Settlement Agreement and "Committee Member" means a
member of the Executive Committee;
"Material" means the source code and load (machine executable) modules
and the technical information manuals and other documentation described
in Schedule B;
"Modification" means the technical information and documents relating
to all modifications, updates and changes to the Material; and
"Receptacle" means the receptacle to contain a copy of the Material
pursuant to Clause 3.1
1.2 Unless the context otherwise requires, words and expression defined in
the Pooling and Settlement Agreement shall bear the same meanings
respectively when used herein.
2. DEPOSIT
2.1 Forthwith upon execution and delivery of this Agreement, the Settlement
System Administrator will deposit and the Custodian will accept as
custodian for the Pool Members (acting through the Executive Committee)
a copy of the Material.
2.2 The Custodian will place the copy of the Material in the Receptacle.
2.3 The Custodian shall bear no obligation or responsibility to any person
to determine the existence, relevance, completeness, accuracy or any
other or any other aspect of the Material and/or Modifications. The
Custodian shall have no responsibility to determine that whatever is
deposited or accepted by it for deposit is or is not Material and/or
Modifications.
3. MODIFICATIONS
3.1 The Settlement System Administrator will ensure that the Material is
kept fully up-to-date and reflects all Modifications and will deposit a
copy of all Modifications with the Custodian as soon as the same is
available.
34.2 The Settlement System Administrator will advise the Executive Committee
of all Modifications and will confirm in writing that a copy of all
Modifications has been delivered to the Custodian and the Custodian
shall as soon as possible confirm receipt thereof in writing to the
Executive Committee.
302
4. RELEASE TO THE EXECUTIVE COMMITTEE
4.1 The Custodian shall forthwith release to the Executive Committee (or a
person nominated by the Executive Committee) the copy(ies) of the
Material and/or all the Modifications:-
4.1.1 upon the written request of the Executive Committee if the
Settlement System Administrator has resigned or has been
removed as Settlement System Administrator under the Pooling
and Settlement Agreement; or
4.1.2 at any time, upon the written request of the Director.
4.2 Any written request of the Executive Committee referred to in Clause
4.1.1 shall be in the form of a statutory declaration by one or more
Committee Members setting out the grounds on which release is sought
and exhibiting such documentation in support thereof as the Custodian
shall reasonably require.
4.3 When any dispute shall arise as to the occurrence of the event set out
in Clause 4.1.1, such dispute will be referred at the instance of
either the Settlement System Administrator, the Custodian or the
Executive Committee to the Director whose decision shall be final and
binding.
5. CONFIDENTIALITY
The Settlement System Administrator will pay the Custodian's fees as
detailed in Schedule C as amended from time to time by written
agreement between the parties.
7. TERMINATION
7.1 This Agreement shall terminate upon the release of the copy of the
Material and copies of all Modification in accordance with Clause 4.1.
7.2 This Agreement may be terminated by the Custodian by giving not less
than 90 days' written notice to both the Executive Committee and the
Settlement System Administrator.
7.3 The Settlement System Administrator may not terminate this Agreement
without the consent of the Executive Committee first being given in
writing. In the event of such consent being given, this Agreement may
be terminated by the Settlement System Administrator giving not less
than 90 days' written notice to the Custodian.
7.4 Upon termination under the provisions of Clause 7.2 or 7.3 the
Custodian will deliver the copy(ies) of the Material and all the
Modifications to the Settlement System
303
Administrator (unless jointly instructed to the contrary by the
Settlement System Administrator and the Executive Committee).
7.5 Termination of the Agreement for whatever reason will not relieve the
Custodian from the obligations of confidentiality contained in Clause
5.
8. TESTS
The Executive Committee shall be entitled to require the Custodian to
carry out such tests which in the opinion of the Custodian would
reasonably establish that the Material and Modification contain true
and accurate versions of the source codes. Any reasonable charges and
expenses incurred by the Custodian will be paid by the Settlement
System Administrator.
9. NOTICES
9.1 Any notice or other communication to be given by one party to the other
party under, or in connection with the matters contemplated by, this
Agreement shall be addressed to the recipient and sent to the address,
telex number of facsimile number of such other party given in this
Agreement for the purpose and marked for the attention of the person so
given or to such other address, telex number and/or facsimile number
and/or marked for such other attention as such other party may from
time to time specify by notice given in accordance with this Clause to
the party giving the relevant notice or other communication to it.
9.2 Any notice or other communication to be given to the Executive
Committee under, or in connection with the matters contemplated by,
this Agreement shall be sent to the Secretary at such address, telex
number or facsimile number as the Secretary may from time to time
specify by notify given in accordance with this Clause to the parties.
9.3 Any notice or other communications to be given by one party to the
other party under, or in connection with the matters contemplated by,
this Agreement shall be in writing and shall be given letter delivered
by hand or sent by first class prepaid post (airmail if overseas) or
telex or facsimile, and shall be deemed to have been received:-
9.3.1 in the case of delivery by hand, when delivered; or
9.3.2 in the case of first class prepaid post, on the second day
following the day of posting or (if sent airmail overseas or
from overseas) on the first day following the day of posting;
or
304
9.3.3 in the case of telex, on the transmission of the automatic
answer-back of the addressee (where such transmission occurs
before 1700 hours on the day of transmission) and in any other
case on the day following the day of transmission; or
9.3.4 in the case of facsimile, on acknowledgement by the address's
facsimile receiving equipment (where such acknowledgement
occurs before 1700 hours on the day of acknowledgement) and in
any other case on the day following the day of
acknowledgement.
10. GOVERNING LAW
This Agreement shall be governed by, and construed in all respects in
accordance with, English law.
305
SCHEDULE A
Details of the Pooling and Settlement Agreement
Pooling and Settlement Agreement dated 30th March, 1990 made between the Founder
Generators named therein (1), the Founder Suppliers named therein (2), NGC
Settlements Limited as Settlement Systems Administrator (3), Energy Pool Funds
Administration Limited as Pooling Funds Administrator (4), The National Grid
Company plc as Grid Operator and Ancillary Services Provider (5) and Scottish
Power plc and Electricite de France, Service
National as Externally Interconnected Parties (6).
SCHEDULE B
The Material
SCHEDULE C
The Custodian's Fees
1. Initial fee
2. Receptacle fee
3. Annual fee
4. Release fee
306
IN WITNESS whereof this Agreement has been duly executed the day and year fist
above written
As Settlement System Administrator
(for itself and on behalf of the Pool Members
acting through the Executive Committee)
THE COMMON SEAL OF )
NCG SETTLEMENTS )
LIMITED was hereunto )
affixed in the )
presence of:- )
Director
Director/Secretary
Address:
Telex No:
Facsimile No:
Attention:
As Custodian
[ ]
Address:
Telex No:
Facsimile No:
Attention:
By:
307
SCHEDULE 8
The Hardware and Software
Part A
The Hardware
AT NATIONAL GRID HOUSE
3 X 8830 VAX Processors
2 x HSC20 Disk Controllers
3 X LPS40 Printers
11 X RA90 Disk Drives
1 x TA79 Magnetic Tape Drives
1 X TB79 Magnetic Tape Drives
2 X RU20 Optical Disk Drives
7 X DEMSA Routers
1 X Decnet Monitor
16 X VT340 Terminals
5 X DEC Terminal Servers
6 X PS2 IBM PCs
12 X Quatro Modems
1 X IBM Comms Gear
1 X 3100 Processors
AT FAIRHAM HOUSE
3 X 6000-420 VAX Processors
2 X HSC70 Disk Controllers
3 X LPS40 Printers
11 X RA90 Disk Drives
1 X TA79 Magnetic Tape Drives
1 X TB79 Magnetic Tape Drives
2 X RU20 Optical Disk Drives
7 X DEMSA Routers
1 X Decnet Monitor
24 X VT340 Terminals
5 X DEC200 Terminal Servers
6 X PS2 IBM PCs
8 X Quatro Modems
1 X IBM Comms Gear
1 X 3100 Processors
308
Part B
Developed Software
SD-Scicon Settlement Application Software
Xxxxxx and Gyr Software
Central Data Collection Systems
LOLP Software
Part C
Limited Software
ORACLE
Digital VMS Operating System
Xxxxxx and Gyr Software
LOLP Software
LOLP Software
309
SCHEDULE 9
THE POOL RULES
SEE SEPARATELY
PRINTED VOLUME
310
SCHEDULE 10
THE POOL RULES
The Secretary of the Executive Committee for the Pooling and Settlement System
in England and Wales
(copied to:
(A) Settlement System Administrator; and
(B) the Pool Funds Administrator).
[Date]
Dear Xxx,
We [insert full legal name and address of registered/principal office of
applicant] refer to the Pooling and Settlement Agreement for the electricity
industry in England and Wales dated 30th March, 1990 as amended, varied,
supplemented, modified or suspended, (the "Pooling and Settlement Agreement").
Unless the context otherwise requires, words and expressions defined in the
Pooling and Settlement Agreement shall bear the same meanings respectively when
used herein.
We hereby give notice pursuant to Clause 8.7 of the Pooling and Settlement
Agreement that we are resigning as a Party with effect form the date falling 28
days after receipt by you of this Resignation Notice.
We confirm that, in giving this notice of resignation, we are not and will not
be in breach of any of the restrictions on resignation set our in Clause 8.8 of
the Pooling and Settlement Agreement.
We [enclose]/[confirm that we have already provided]* such notices if any) as
are required to be given by us pursuant to the provisions of Part XV of the
Pooling and Settlement Agreement.
810
We acknowledge that our resignation as a Party is without prejudice to our
accrued rights and liabilities and any rights and liabilities which may accrue
to us in relation to the period during which we were a Party under the Pooling
and Settlement Agreement, the Funds Transfer Agreement or any agreement referred
to in Clause 8.8.1(c) of the Pooling and Settlement Agreement.
Yours faithfully,
__________________________________
duly authorized for and on behalf of
[insert full legal name of Party]
_______________________________________________
*Complete/delete as appropriate
811
SCHEDULE 11
Billing and Settlement
PART 1
PRELIMINARY
1. Definitions and Interpretation
PART 2
ESTABLISHMENT OF SYSTEMS
2. Payments Calendar
3. Information Systems
4. Banking System
5. Establishment of Trusts
6. Pool Ledger Accounts
[Sections 7 to 14 (inclusive) not used]
PART 3
SECURITY COVER AND CREDIT MONITORING
15. Security Cover
16. Credit Monitoring
PART 4
BILLING AND PAYMENT PROCEDURES
17. Receipt and Verification of Information
18. Advice Notes
19. Payment Procedure
812
20. Alternative Payment Procedure
21. Payment Default
22. Confirmation Notices
23. Payment Errors
24. Enforcement of Claims
25. Credit Facility: Payment Defaults
26. Credit Facility: General
Annex 1 - Form of Advice Note
Annex 2 - Form of Confirmation Notice
Annex 3 Part 1 - Form of Settlement Account Designation
Part 2 - Form of Change of Settlement Account
Annex 4 - Form of Letter of Credit
813
SCHEDULE 11
Billing and Settlement
PART 1
PRELIMINARY
1. DEFINITION AND INTERPRETATION
1.1 Definitions: in this Schedule, except where the context otherwise
requires:-
"Advice Note" means a statement substantially in the form and
containing the information set out in Annex 1 (or in such other form or
containing such further information as may from time to time be
specified by the Executive Committee) issued in the name of the Pool
Funds Administrator to a Pool Member or the Ancillary Services
Provider;
"Approved Credit Rating" means, in relation to a Pool Member, a
short-term debt rating of not less than Al by Standard and Poor's
Corporation or a rating of not less than P1 by Xxxxx'x Investors
Service or an equivalent rating from any other reputable credit rating
agency approved by the Executive Committee;
"Banking System" means the banking system described in Section 4, for
the transfer of funds from Pool Debtors to Pool Creditors in accordance
with this Schedule, as amended or replaced from time to time in
accordance with the provisions of the Agreement;
"Billing System" means the systems and procedures described in Sections
18 and 22 for the issuing of Advice Notes and Confirmation Notices by
the Pool Funds Administrator to Pool Members and the Ancillary Services
Provider, as amended or replaced from time to time in accordance with
the provisions of the Agreement;
"CHAPS" means the Clearing House Automated Payments System;
"Collection Account" means an account denominated in sterling
maintained by the Pool Funds Administrator at a Town Clearing branch of
a Settlement Bank, and designated from time to time as a Collection
Account in accordance with Section 4;
"Collection Account" means an account denominated in sterling
maintained by the Pool Funds Administrator at a Town Clearing branch of
a Settlement Bank, and designated from time to time as a Collection
Account in accordance with Section 4;
814
"Confirmation Notice" means a statement substantially in the form and
containing the information set out in Annex 2 (or in such other form or
containing such further information as may from time to time be
specified by the Executive Committee) issued in the name of the Pool
Funds Administrator to a Pool Member of the Ancillary Services
Provider;
"Credit Facility" means the credit facility in a principal amount of up
to (pound)20,000,000 provided to the Pool Funds Administrator by
Barclays Bank PLC (acting through its branch at 00 Xxxxxxx Xxxxxx,
Xxxxxx XX0 0XX) with effect from 1st January, 1993 as from time to time
extended, renewed or modified and any other facility provided to the
Pool Funds Administrator by Barclays Bank PLC or any other bank
(approved by the Executive Committee) whether in substitution for or in
addition to the same in any such case or terms approved by the
Executive Committee;
"Default Interest Rate" means:-
(i) a rate per annum determined by the Pool Funds Administrator to
be equal to the aggregate of:-
(a) 4 per cent, per annum; and
(b) the Pool Banker's base lending rate from time to
time;
(ii) such other rate as the Executive Committee may from time to
time determine;
"Facility Bank" means Barclays Bank PLC (acting through its branch at
00 Xxxxxxx Xxxxxx, Xxxxxx XX0 XXX) or such other bank as may from time
to time provided a Credit Facility;
"Funds Transfer Agreement" means the agreement of that name dated 30th
March, 1990 and made between Energy Pool Funds Administration Limited,
Barclays Bank PLC, the Pool Members named therein and The National Grid
Company plc as Ancillary Services Provider, as amended, varied,
supplemented, modified or suspended from time to time in accordance
with the terms hereof and thereof;
"Funds Transfer Business" means the business of the Pool Funds
Administrator in operating the Funds Transfer System and providing the
Services;
"Funds Transfer Hardware" has the meaning ascribed to it in Schedule
15;
"Funds Transfer Software" has the meaning ascribed to it in Schedule
15;
"Funds Transfer System" means the Banking System, the Billing System
and the Information Systems;
815
"Information Systems" means the information systems described in
Section 3 for the transfer of information to be given by or to the Pool
Funds Administrator in connection with the Funds Transfer Administrator
in connection with the Funds Transfer Business, as amended or replaced
from time to time in accordance with the provisions of the Agreement;
"Letter of credit" means an unconditional irrevocable standby letter of
credit substantially in the form set out in Annex 4 (or such other form
as the Executive Committee may approve) issued for the account of a
Supplier in sterling in favor of the Pool Funds Administrator as
trustee on the trusts set out in Section 5 by any United Kingdom
clearing bank or any other bank which has a long term debt rating of
not less than single A by Standard and Poor's Corporation or by Xxxxx'x
Investors Service, or such other bank as the Executive Committee may
approve, and which shall be available for payment at a Town Clearing
branch of the issuing bank;
"Notification Date" means, in respect of any Settlement Day, the day
specified in the Payments Calendar as the day on which the Settlement
Run shall be required to be delivered by the Settlement System
Administrator to the Pool Funds Administrator for that Settlement Day;
"Notified Payment" means a payment notified in accordance with Section
18 by the Pool Funds Administrator to a Pool Member or the Ancillary
Services Provider as being a payment required to be cleared through the
Pool Clearing Account;
"Notified Payments System" means the system to be established by
Section 19 for the settling of Notified Payments, as amended or
replaced from time to time in accordance with the provisions of the
Agreement;
"Payment Date" means, in relation to any Settlement Day, the date fixed
in accordance with Section 2 upon which Notified Payments in respect of
supplies of electricity and the provision of Ancillary Services must be
settled in accordance with this Schedule;
"Payment Calendar" means the calendar prepared and issued in accordance
with Section 2 showing a Notification Date and a Payment Date in
respect of each Settlement Day;
"Pool Accounts" means the Pool Clearing Account, the Pool Borrowing
Account, the Pool Reserve Account and the Collection Accounts and such
other accounts as may be established in accordance with sub-section
4.2;
"Pool Banker" means Barclays Bank PLC or such other person nominated
form time to time by the Executive Committee as Pool Banker and
appointed as Pool Banker;
816
"Pool Borrowing Account" means the account of that title in the name of
the Pool Funds Administrator with the Facility Bank which may from time
to time be opened in respect of the Credit Facility;
"Pool Clearing Account" means the account in the name of the Pool Funds
Administrator (holding as trustee on the trusts set out in Section 5)
with the Pool Banker to which Notified Payments are required to be
transferred for allocation to Pool Creditors in accordance with their
respective entitlements;
"Pool Creditor" means each Pool Member and the Ancillary Services
Provider to whom moneys are payable pursuant to the terms of this
Schedule other than a Supplier in respect of (i) amounts owning to it
by another Supplier pursuant to the operation of sub-section 21.1;
"Pool Debt" means, in respect of a Pool Member or the Ancillary
Services Provider, the aggregate amount payable by such Pool Member or
the Ancillary Services Provider pursuant to the terms of this Schedule;
"Pool Debtor" means each Pool Member the Ancillary Services Provider,
but in either case only where it is required to make payment under this
Schedule;
"Pool Ledger Accounts" means the accounting records required to be
maintained by the Pool Funds Administrator in accordance with Section 6
for the recording of transactions settled in accordance with this
Schedule;
"Pool Reserve Account" means the account established pursuant to
sub-section 4.2 for the purpose of holding a cash deposit which may be
used in or towards clearing the Pool Clearing Account in accordance
with Section 21;
"Pool Reserve Assets" has the meaning given that expression in
sub-section 5.12;
"Reserve Interest Rate" means the rate of interest payable from time to
time by the Pool Banker on amounts standing to the credit of the Pool
Reserve Account;
"Security Amount" means, in respect of a Supplier, the aggregate of
available amounts of each outstanding Letter of Credit plus the
principal amount (if any) of cash that such Supplier has paid to the
credit of the Pool Reserve Account (and which has not been repaid to
such Supplier) and less the amount of all outstanding loans deemed to
be made under paragraphs 21.1.3 or 21.1.5 of this Schedule to such
Supplier; for the purposes of this definition, in relation to a Letter
of Credit, "available amount" means the face amount thereof less (i)
payment already made thereunder and (ii) claims made thereunder but not
yet paid;
817
"Security Cover" means, in respect of each Supplier, the aggregate
amount for the time being which it shall be required by the Executive
Committee to provide and maintain by way of security in accordance with
Part 3;
"Services" means the services and responsibilities to be supplied or
discharged by the Pool Funds Administrator pursuant to the Agreement;
"Settlement Account" means, in relation to a Pool Member or the
Ancillary Services Provider, an account maintained at a Settlement Bank
and designated in accordance with sub-section 4.4;
"Settlement Account Designation" means a notice substantially in the
form set our in Part 1 of Annex 3 or in such other forms as may be
specified by the Executive Committee, completed and signed by a Pool
Member of the Ancillary Services Provider designating a Settlement
Account for the purposes of this Schedule;
"Settlement Bank" means a bank which:-
(a) has its head office or a branch situated in the United Kingdom
and which holds sterling denominated accounts such office or
branch;
(b) is a settlement member of the Clearing House Automated Payment
Systems ("CHAPS") or is a CHAPS participant by virtue of an
agency agreement with a settlement member; and
(c) is either:-
(i) a European institution under the Banking Coordination
(Second Council Directive) Regulations 1992; or
(ii) an authorized institution under the Banking Act 1987;
"Settlement Bank Mandate" means any mandate referred to in sub-section
4.7 to be given by the Pool Funds Administrator in favor of a
Settlement Bank or, as the context may require, a particular one of
them in such form(s) as the Executive Committee may approve, such
approval not to be unreasonably withheld, such mandate being given for
the purpose of establishing and maintaining a Collection Account;
"Settlement Re-run" means any re-run of Settlement in accordance with
Part XII of the Agreement;
"Settlement Bank Mandate" means any mandate referred to in sub-section
4.7 to be given by the Pool Funds Administrator in favor of a
Settlement Bank or, as the
818
context may require, a particular one of them in such form(s) as the
Executive Committee may approve, such approval not to be unreasonably
withheld, such mandate being given for the purpose of establishing and
maintaining a Collection Account;
"Settlement Re-run" means any re-run of Settlement in accordance with
Part XII of the Agreement;
"Settlement Run" means, in respect of transactions occurring on the
relevant Settlement Day for which payments are to be settled pursuant
to this Schedule, the data which the Settlement System Administrator is
required to deliver from time to time to the Pool Funds Administrator
pursuant to Section 17 in respect of such transactions; and
"Shortfall" has the meaning given that expression in sub-section 5.7
1.2 Interpretation: in this Schedule, except where the context otherwise
requires, references to a particular Annex, Part, Section, sub-section,
paragraph or sub- paragraph shall be a reference to that Annex to or
part of this Schedule or, as the case may be, that Section,
sub-section, paragraph or sub-paragraph in this Schedule and references
to any amount being exclusive or inclusive of United Kingdom Value
Added Tax shall mean that that amount is exclusive or inclusive (as the
case may be) of a sum equal to such amount, if any, of United Kingdom
Value Added Tax as is properly chargeable on the supply to which the
first-mentioned amount is attributable as being all or part of the
consideration for that supply.
819
PART 2
ESTABLISHMENT OF SYSTEMS
2. PAYMENTS CALENDAR
2.1 Preparation: no later than 31st January in each year the Pool Funds
Administrator and the Settlement System Administrator shall agree on a
Payments Calendar showing for the period from 1st April in that year to
31st March in the next succeeding year (both dates inclusive) the
Payment Dates on which payments pursuant to the Agreement in respect of
supplies of electricity and the provision of Ancillary Services on each
Settlement Day are required to be settled and showing the Notification
Dates on which the Settlement Run in respect of such supplies shall be
delivered by the Settlement System Administrator to the Pool Funds
Administrator.
2.2 Principles: each Payments Calendar shall give effect to the following
principles:
2.2.1 the Settlement Run shall be required to be delivered by the
Settlement System Administrator to the Pool Funds
Administrator no later than the 24th day after the Settlement
Day to which the Settlement Run relates (or, if such day is
not a Business Day, the next succeeding day which is a
Business Day);
2.2.2 the Payment Date shall not fall earlier than two clear
Business Days after the day on which the Settlement Run is
required to be delivered by the Settlement System
Administrator to the Pool Funds Administrator;
2.2.3 expressed as an average over the entire period covered by the
Payments Calendar, the Payment Date shall fall, as near as
practicable, 28.0 days after the Settlement Day to which it
relates; and
2.2.4 each Payment Date shall fall as close as is reasonably
practicable to the 28th day after the Settlement Day to which
it relates,
2.3 Form: the Payments Calendar shall be in such form as the Executive
Committee shall from time to time prescribe.
2.4 Default: if the Pool Funds Administrator and the Settlement System
Administrator shall fail to agree a Payments Calendar for any period by
the date stated in subsection 2.1 or the Payments Calendar prepared by
them does not give effect to the principles set out in sub-section 2.2,
the Executive Committee shall prepare or cause to be prepared a
Payments Calendar for that period giving effect to the said principles
and that shall be the Payments Calendar for use for that period.
820
2.5 Distribution: any Payments Calendar prepared pursuant to this Section 2
shall e distributed promptly to each Pool Member, the Ancillary
Services Provider, the Pool Banker, the Pool Auditor and the Director
and (if prepared by the Pool Funds Administrator and the Settlement
System Administrator) the Executive Committee and (if prepared by or
for the Executive Committee) the Pool Funds Administrator and the
Settlement System Administrator.
3. INFORMATION SYSTEMS
3.1 Provision of information: unless otherwise required by the Executive
Committee, all written information to be given by or to the Pool Funds
Administrator in connection with the Banking System and the Billing
System shall be provided in the following manner:
3.1.1 for information flowing between the Pool Funds Administrator,
the Settlement System Administrator and the Ancillary Services
Provider by electronic mail as designated from time to time by
the recipient in a written notice to the sender of the
information or if such electronic mail systems are not
operational by the Effective Date, then until such systems are
operational, by such means as such parties shall agree;
3.1.2 for information flowing between the Pool Funds Administrator
and the Pool Banker, in the manner prescribed in the Funds
Transfer Agreement or in such other manner as may be agreed
between the Pool Funds Administrator and the Pool Banker;
3.1.3 for information flowing between the Pool Funds Administrator
and a Settlement Bank, in the manner prescribed in the
relevant Settlement Bank Mandate or in such manner as may be
agreed between the Pool funds Administrator and the Settlement
Bank;
3.1.4 for information flowing between the Pool Funds Administrator
and any Pool Member who has installed an electronic mail
transfer system compatible with the Pool Funds Administrator's
electronic mail transfer system, by electronic mail as
designated from time to time by the recipient in a written
notice to the sender of the information;
3.1.5 for information flowing between the Pool Funds Administrator
and any other Pool Member, by facsimile transmission and
addressed for the attention of the Authorized Person (as
defined in sub-section 3.3) for such Pool Member and sent to
them latest facsimile number of such Authorized Person
notified to the Pool Funds Administrator pursuant to
sub-section 3.3 provided that, if at the relevant time there
is no Authorized Person for such Pool Member, such information
shall be sent by facsimile transmission and addressed for the
821
attention of the company secretary of such Pool Member and
sent to the facsimile number of its registered or principal
office.
3.2 Communications Equipment: each Party undertakes to exercise reasonable
skill and care to ensure that its communications equipment at all times
adequate to transmit and receive information in connection with the
Banking System and the Billing System. In the case of any breakdown,
failure or non-availability of the communications or other equipment,
each Party affected shall use all reasonable efforts to agree promptly
on the use and implementation of alternative, effective and secure
means of communication (and, in default of agreement, notices or other
communication shall be by letter delivered or sent in accordance with
Clause 75).
3.3 Authorized persons: upon written request of the Pool Funds
Administrative each Pool Member shall (and may of the its own accord)
provide the Pool Funds Administrator in writing with the name of, and
communication details for, one or more individuals ("Authorized
Persons") who are authorized (and, until it receives written notice to
the contrary, the Pool Funds Administrator shall be entitled to assume
that they are authorized) to take action on behalf of such Pool Member
in respect of all communications and other dealings under this Schedule
between the Pool Funds Administrator and such Pool Member. Each Pool
Member shall promptly advise the Pool Funds Administrator in writing of
any change of any such individual or his communication details. The
Pool Funds Administrator shall notify all Pool Members and the
Executive Committee of the names and communication details of all
Authorized Persons and of any change in any such individual or his
communication details.
822
4. BANKING SYSTEM
4.1 Funds Transfer Agreement: on the Effective Date the Pool Funds
Administrator, the Pool Banker, each Pool Member and the Ancillary
Services Provider (in each case as at such date) entered into the Funds
Transfer Agreement.
4.2 Establishment of Accounts: the Pool Funds Administrator shall establish
and operate in accordance with the Agreement and Funds Transfer
Agreement a Pool Clearing Account to and from which all payments
calculated in accordance with this Schedule are to be made, a Pool
Reserve Account from which any debit balances on the Pool Clearing
Account at the close of banking business on each Business Day shall be
settled or reduced in accordance with this Schedule, a Collection
Account at each bank at which, from time to time, any Pool Member or
the Ancillary.
4.3 Rights and obligations under Funds Transfer Agreement: the Pool Funds
Administrator is authorized by the Pool Members and the Ancillary
Services Provider to exercise the rights granted to it under, and shall
perform its obligations pursuant to, the Funds Transfer Agreement
except that it shall not remove the Pool Banker without the prior
written consent of the Executive Committee; and that at the request of
the Executive Committee it Transfer Agreement. Subject to the agreement
of the Pool Banker, the Parties agree promptly to give effect to any
amendment to the Funds Transfer Agreement as may be required by the
Executive Committee.
4.4 Settlement Account: each Pool Member and the Ancillary Services
Provider shall deliver to the Pool funds Administrator, in the case of
a Pool Member, not later than the later of the Effective Date and 10
Business Days (or such lesser number of Business Member, by notice to
such Pool Member and the Pool Funds Administrator specify) before it is
admitted as a Pool Member and, in the case of the Ancillary Services
Provider, not later than the later of the Effective Date and the date
of its admission as a Party a duly completed and signed Settlement
Account Designation providing details of the Settlement Account to
which the Pool Funds Administrator is instructed to make payments to
such person and, if such person wishes to designate a second account as
its Settlement Account from which payments due from such person are to
be transferred in accordance with this Schedule, providing details of
such other account.
4.5 Further information: each Pool Member and the Ancillary Services
Provider shall also supply to the Pool Funds Administrator and the
Executive Committee such information or (as the case may be) further
information concerning its Settlement Account as shall be reasonably
requested by the Executive Committee or the Pool Funds Administrator.
4.6 Change of Settlement Account: each Pool Member and the Ancillary
Services Provider may, in consultation with the Pool Funds
Administrator and the Pool
823
Banker, change its Settlement Account at any time by delivering to the
Pool Funds Administrator and the Pool Banker a duly completed and
signed notice substantially in the form set out in Part 2 of Annex 3
(or in such other form as may from time to time be specified by the
Executive Committee) specifying the effective date of the change (which
shall be no less than 10 Business Days after the notice is received by
the Pool Funds Administrator and the Pool Banker a duly completed and
signed notice substantially in the form set out in Part 2 of Annex 3
(or in such other form as may from time to time be specified by the
Executive Committee) specifying the effective date of the change (which
shall be no less than 10 Business Days after the notice is received by
the Pool Funds Administrator).
4.7 Maintenance of Settlement Account and Settlement Bank Mandate: each
Pool Member and the Ancillary Services Provider shall, unless otherwise
agreed by the Executive Committee, at all times maintain a Settlement
Account and the Pool Funds Administrator shall enter into and maintain
a Settlement Bank Mandate with each of the relevant Settlement Banks.
4.8 Details of Accounts: the Pool Funds Administrator shall supply full
details to each Pool Member and the Ancillary Services Provider of the
Pool Clearing Account, the Pool Reserve Account and any relevant
Collection Account and, for so long as it is maintained, the Pool
Borrowing Account and shall supply the Executive Committee with full
details of all Pool Accounts and Settlement Accounts.
5. ESTABLISHMENT OF TRUSTS
5.1 Trusts: the Pool Funds Administrator shall hold all moneys deposited
with or paid to it (other than Pool Reserve Assets) and such rights as
may from time to time be vested in it with regard to payment by Pool
Members (apart from fees owed or paid to it for its services in
accordance with Schedule 15 and any amounts payable to it pursuant to
that Schedule upon its removal as Pool Funds Administrator or the
expiry or termination of its appointment as such) by and from each Pool
Debtor or with regard to the provision of Security Cover by each Pool
Member, including:-
5.1.1 subject as provided in sub-section 5.2, all moneys from time
to time standing to the credit of each Pool Account other than
the Pool Reserve Account and the Pool Borrowing Account;
5.1.2 all rights of the Pool Funds Administrator to call for payment
or Security Cover;
5.1.3 the Letters of Credit and all rights to, and (subject to
sub-section 15.5) moneys representing, any proceeds therefrom
other than proceeds repayable by loan in accordance with
paragraphs 5.12.5 and 5.16; and
824
5.1.4 any interest received or receivable in respect of a Pool Debt
or a Pool Account (other than interest on the Pool Reserve
Account),
on trust for Pool Creditors in accordance with their respective individual
entitlement as they arise in accordance with the Agreement. Upon termination of
the said trust any residual balance after satisfaction of the entitlement of all
Pool Creditors shall be held for Suppliers in accordance with their respective
individual entitlement as they arise in accordance with the Agreement.
5.2 Trusts in respect of the Credit Facility: the Pool Funds Administrator
shall hold all moneys from time to time standing to the credit of the
Pool Clearing Account on trust first for the Facility Bank to the
extent that there is an aggregate amount outstanding under the Credit
Facility but on terms that no funds shall be withdrawn in favor of the
Facility Bank under the terms of the Credit Facility or in accordance
with this Schedule and on terms that the Pool Funds Administrator
Members and other Parties in accordance with the other provisions of
this Schedule.
5.3 Rights of Pool Creditors other than the Ancillary Services Provide: the
respective rights of Pool Creditors other than the Ancillary Services
Provider to the assets held by the Pool Funds Administrator on the
trusts set out in sub-section 5.1 shall be determined in accordance
with the Agreement and in accordance with the following principles:
5.3.1 the extent of each Pool Creditor's individual rights shall be
deemed to consist of the aggregate of the claims (to the
extent not paid or otherwise satisfied of such Pool Creditor
in respect of each Settlement Period; and
5.3.2 the assets referred to in sub-section 5.1 shall be deemed to
consist of a series of funds, each fund representing the
rights or moneys owed, paid, held or otherwise attributable to
each Settlement Period. The Pool Funds Administrator shall not
be obliged to segregate moneys into separate funds.
5.4 Rights of Ancillary Services Provider: the rights of the Ancillary
Services Provider to assets held on trust shall be determined in
accordance with Section 23 of Schedule 9.
5.5 Trusts in respect of Pool Reserve Assets: the Pool Funds Administrator
shall stand possessed of the Pool Reserve Assets on the following
trusts, that is to say:-
5.5.1 at any time when no amounts owed by Pool Debtors are overdue,
on trust to repay (subject to and in accordance with the
provision of sub-section 5.8 and 5.9) to each Supplier such
Supplier's respective share (determined in accordance with
sub-section 5.13) of the Pool Reserve Assets; and
825
5.5.2 with automatic effect as soon as any amount owed by a Pool
Debtor becomes overdue, to hold an amount of the moneys
credited from time to time to the Pool Reserve Account equal
to the Shortfall or the amount held in the Pool Reserve
Account attribute to such Pool Debtor (whichever is less) on
the trusts set out in sub-section 5.1 and the balance (if any)
shall be held on the trusts set out in paragraph 5.5.1.
5.6 Overdue amounts: in respect of a Pool Debtor and for the purposes of
sub-section 5.5, an amount shall be deemed to become overdue at the
time at which the Pool Funds Administrator becomes aware that such Pool
Debtor has not made or will not make by 12.30 hours payment in full to
the credit of the Collection Account of such Pool Debtor of such an
amount as it is required on such day to make and, for as long as the
Credit Facility remains unconditionally available, the Pool Funds
Administrator considers in good faith that the amount in default is not
likely to be remedied on the next Business Day and the amount overdue
shall be the amount of the Shortfall.
5.7 Shortfall: the term "Shortfall", as used in this Section 5 means the
amount from time to time of Notified Payments which have become overdue
by application of the rule set out in sub-section 5.6 and which have
not subsequently been paid (whether by remittance from a Pool Debtor,
payment out of the extent that the Pool Reserve Account or a call under
a Letter of Credit). To the extent that the Pool Funds Administrator is
unable to determine the precise amount a Shortfall, it shall be deemed
to be such amount as the Pool Funds Administrator and the Pool Banker
shall agree, or failing agreement, the entire amount of the Notified
Payment.
5.8 Supplier's rights to funds: each Supplier remitting funds for credit to
the Pool Reserve Account agrees that the following terms shall apply.
None of the remittances shall be repayable full amounts actually or
contingently owed by it to any Pool Creditor, the Settlement System
Administrator or the Pool Funds Administrator. Furthermore, if and to
the extent that, at any time when an amount would be repayable to a
Supplier pursuant to this sub-section 5.8, all or any part of the
Supplier's interest in the Pool Reserve Assets is represented by a loan
to a Pool Member deemed to be made in accordance with paragraph 21.1.3
or 21.1.5 the Supplier's rights as against the Pool Funds Administrator
to receive a payment of its share in the Pool Reserve Assets (or the
relevant portion of such share) shall be conditional on repayment in
full of the relevant loan.
5.9 Funds not to be withdrawn: each Supplier undertakes not to seek
withdrawal of any funds of which it may be entitled except in the
circumstances permitted by sub-section 5.10 or 16.7. The Pool Funds
Administrator shall be entitled to disregard any purported notice of
withdrawal not complying with this sub-section 5.9.
5.10 Suppliers' rights to withdraw funds: notwithstanding sub-sections 5.8
and 5.9, if a Supplier is not in default in respect of any amount owed
to a Pool Creditor:-
826
5.10.1 the Pool Funds Administrator shall transfer to the relevant
Supplier quarterly its share of interest credited to the Pool
Reserve Account; and
5.10.2 the Pool Funds Administrator shall transfer to such Supplier
with a reasonable time after such Supplier's written request
therefor an amount of cash which exceeds the amount which such
Supplier is required to maintain in the Pool Reserve Account
from time to time in accordance with Section 16.
5.11 Waiver of Supplier's rights: each Supplier waives any right it might
otherwise have to set off against any obligation owed to the Pool Funds
Administrator, the Pool Banker, any Pool Member or the Ancillary
Services Provider any claims Supplier may have to or in respect of the
Pool Reserve Assets.
5.12 Pool Reserve Assets: "Pool Reserve Assets" means the aggregate of:-
5.12.1 amounts form time to time credited to the Pool Reserve
Account;
5.12.2 amounts which any Supplier is from time to time obliged to pay
to the Pool Funds Administrator for credit to the Pool Reserve
Account and claims in respect of such amounts;
5.12.3 interest accrued and accruing on the Pool Reserve Account;
5.12.4 any amounts credited to the Pool Reserve Account pursuant to
paragraph 15.4.3; and
5.12.5 any loans deemed to be made from any amounts credited to the
Pool Reserve Account pursuant to paragraph 21.1.3 or 21.1.5.
5.13 Suppliers' rights and interests in the Pool Reserve Account: at any
time when it is necessary to determine the respective rights and
interests of Suppliers in and to funds standing to the credit of the
Pool Reserve Account, such rights shall be determined in accordance
with the following rules:-
5.13.1 any amount withdrawn from the Pool Reserve Account following
the occurrence of a Shortfall which the Pool Funds
Administrator has determined to be attributable to a
particular Supplier (the "Relevant Supplier") (irrespective of
the existence or otherwise of actual fault on the part of the
Relevant Supplier) shall in the first instance reduce pro
tanto the Relevant Supplier's interest in the Pool Reserve
Assets;
5.13.2 if, in any circumstances described in paragraph 5.13.1, the
Shortfall exceeds the Relevant Supplier's interest in the Pool
Reserve Account,
827
then any excess required to be withdrawn from the Pool Reserve
Account shall reduce the respective interests of Suppliers
other than the Relevant Supplier in proportion to their
respective interests in the Pool Reserve Account prior to the
withdrawal;
5.13.3 any proceeds of a Letter of Credit which are to be credited to
the Pool Reserve Account pursuant to sub-section 5.16, and any
amounts paid by a Relevant Supplier to make up a payment out
of the Pool Reserve Account, shall be applied in priority in
or towards reinstating (rateably among themselves) the
respective interests of Suppliers other than the Relevant
Supplier in the Pool Reserve Account;
5.13.4 subject to the rules set out in paragraphs 5.13.1 to 5.13.3
(inclusive), the respective rights of each Supplier in and to
funds standing to the credit of the Pool Reserve Account shall
be to receive (subject to subsections 5.8 and 5.9) an amount
equal to the aggregate amounts remitted by the Supplier to the
Pool Reserve Account and not subsequently withdrawn together
with a proportionate share of any interest from time to time
credited to the Pool Reserve Account;
5.13.5 in the absence of a Shortfall, any amounts credited to the
Pool Reserve Account following a call under a Letter of Credit
pursuant to subsection 15.5 shall be considered as an interest
in the Pool Reserve Assets of the relevant Supplier in respect
of the relevant Letter of Credit.
5.14 Overpayments to be held on trust: if and to the extent that payments
under this Schedule actually made on any day by the Pool Funds
Administrator to Pool Members or the Ancillary Services Provider in
respect of supplies of electricity under the Agreement or the provision
of Ancillary Services do not correspond exactly with their respective
payment entitlement established in accordance with the Agreement in
relation to supplies of electricity or the provision of Ancillary
Services in respect of that same day, then the person receiving any
overpayment shall receive and be deemed to hold the amount of such
overpayment on trust for the Pool Member or rateably for the Pool
Members or, as the case may be, for the Ancillary Services Provider
which, in respect of that same day was (were) underpaid and, on the
written instruction of the Pool Funds Administrator, shall account in
accordance with sub- section 23.2 to the Pool Funds Administrator
accordingly for redistribution of the moneys.
5.15 Reimbursement of overpayments: subject to sub-section 5.8 and 5.14, all
payments under this Schedule shall be made on the basis that a Pool
Member shall only be entitled to claim reimbursement of an overpayment
made by it (whether to the Pool
828
Funds Administrator or (through the Pool Funds Administrator) to
another Pool Member or the Ancillary Services Provider) if, any then
only to the extent that:-
(a) the aggregate amounts paid by the Pool Member in respect of
the relevant Payment Date
exceed
(b) the total amounts payable to that Pool Member to Pool
Creditors in respect of that Payment Date together with all
amounts (if any) overdue by that Pool Member in respect of
periods prior to the relevant Payment Date.
5.16 Repayment of loans: notwithstanding their rights pursuant to
sub-section 5.1 in and to Letters of Credit and the proceeds thereof,
Pool Creditors agree that if:-
5.16.1 a payment is received under a Letter of Credit after a sum has
been withdrawn from the Pool Reserve Account to make good (in
whole or in part) a discrepancy between amounts owed and
amounts received by the due time on a particular Payment Date;
and
5.16.2 the aggregate of the amounts paid out of the Pool Reserve
Account and paid under the Letter of Credit exceeds the
amounts owed in respect of the relevant Payment Date.
then any excess paid under the Letter of Credit over the amount then
remaining unpaid in respect of the relevant Payment Date appropriate,
any such credit shall pro tanto constitute repayment of any loans
deemed to be made pursuant to paragraphs 21.1.3 or 21.1.5.
5.17 No claim for breach of trust: provided that the Pool Funds
Administrative carries out its duties under the Agreement, no Pool
Member shall have any claim against the Pool Funds Administrator for
breach of trust or fiduciary duty arising solely out of any discrepancy
between payments actually made in respect of any day and the
entitlement of Pool Members to receive payments in respect of that same
day.
6. POOL LEDGER ACCOUNTS
6.1 Maintenance of Pool Ledger Accounts: the Pool Funds Administrator shall
maintain ledger accounts showing all amounts payable and receivable by
each Pool Member and the Ancillary Services Provider according to
calculations made and notifications issued by the Pool Funds
Administration pursuant to this Schedule.
6.2 Ledger extracts: each Pool Member and the Ancillary Services Provider
shall be entitled to receive a quarterly extract of the ledger account
which is relevant to it
829
showing all amounts debited and credited to its account provided that,
if a Pool Member or the Ancillary Services Provider so requests of the
Pool Funds Administrator, it shall be entitled to receive a monthly
extract of such ledger account.
6.3 Certified copy extracts: without prejudice to the generality of the
general duties and responsibilities of the Pool Funds Administrator set
out in Schedule 15, in the event of any enforcement proceedings being
brought by a Pool Creditor against a non- paying Pool Member, the Pool
Funds Administrator shall forthwith upon request being made to it a the
cost of the requesting Pool Creditor provide a certified copy of an
extract of the ledger accounts sufficient to establish the details of
each transaction in respect of which the Pool Creditor has a claim
against the non-paying Pool Member.
6.4 Confidentiality: the ledger accounts maintained by the Pool Funds
Administrator shall be kept confidential in accordance with Part XVIII
of the Agreement from Committee Members and from all Pool Members
(except as required pursuant to Clause 63.1.5 or 63.1.6 or sub-section
6.2 or 6.3) but the Pool Funds Administrator shall disclose such ledger
accounts to the Pool Auditor for the purpose of any audit requested to
be conducted pursuant to Part IX of the Agreement.
6.5 Information: any extract of a ledger account of any other records, data
or information provided pursuant to Clause 63.1.5 or 63.1.6 or
sub-section 6.2 (collectively referred to in this Section 6 as the
"information") shall, save in the case of manifest error, be deemed
prima facie evidence of its contents.
6.6 Review of extracts: each Pool Member and the Ancillary Services
Provider shall promptly review all extracts of ledger accounts sent to
it and shall without prejudice to any of its rights under the
Agreement) where practicable within 10 Business Days after receiving
such information notify the Pool Funds Administrator of any errors in
such account of which it is aware.
6.7 Dispute of accuracy: if the Pool Funds Administrator at any time
receives a notice disputing the accuracy of any ledger account,
records, data or information, it shall consult with the Pool Member who
gave the notice or (as the case may be) the Ancillary Services Provider
and both shall use all reasonable endeavors to agree the information.
Promptly after agreement is reached, the Pool Funds Administrator
shall, if necessary, issue corrected information and notifications
under the provisions of sub-section 17.8.
[Sections 7 to 14 (inclusive) not used]
830
PART 3
SECURITY COVER AND CREDIT MONITORING
15. SECURITY COVER
15.1 Provision of Security Cover: each Supplier shall provide Security Cover
from time to time in accordance with the following provisions: -
15.1.1 each Supplier (with the exception of any entity of or
wholly-owned or Controlled by the United Kingdom Government)
shall:-
(a) deliver to the Pool Funds Administrator evidence
reasonably satisfactory to the Executive Committee
that:-
(i) it presently holds an Approved Credit
Rating; or
(ii) it has provided and is not in default under
alternative or additional security as may be
approved from time to time by unanimous
decision of all Committee Members (Committee
Members being under no obligation to approve
any such security), or
(b) comply with the provisions of paragraph 15.1.3;
15.1.2 in addition to the provisions of paragraph 15.1.1 but subject
as provided in Sections 21.12 and 25, each Supplier (including
any entity of or wholly-owned or Controlled by the United
Kingdom Government shall:-
(a) not later than the date of its admission as a Pool
Member, deliver to the Pool Funds Administrator a
Letter of Credit (available for an initial period of
not less than 12 months) in such amount as shall be
notified by the Executive Committee in accordance
with Section 16; and
(b) not later than the date of its admission as a Pool
Member, deliver to the Pool Funds Administrator cash
for credit to the Pool Reserve Account in such amount
as shall be notified by the Executive Committee in
accordance with Section 16;
15.1.3 each Supplier mentioned in paragraph 15.1.1 to which paragraph
(b) of paragraph 15.1.1 applies shall immediately be required
(in addition to its obligation, if any, under paragraph
15.1.2) to deliver to the Pool Funds Administrator a Letter of
Credit (available for an initial period
831
of not less than 12 months) or cash for credit to the Pool
Reserve Account in such amount and in such proportions as
shall be notified by the Executive Committee in accordance
with Section 16.
15.2 Letters of Credit: for the avoidance of doubt nothing in sub-section
15.1 or 15.6 shall prevent any Supplier from delivering a single Letter
of Credit in respect of its obligations under paragraphs 15.1.2 and
15.1.3.
15.3 Cash deposit: any cash amount delivered to the Pool Funds Administrator
for credit to the Pool Reserve Account shall be held on the terms set
out in Section 5. Amounts standing to the credit of the Pool Reserve
Account shall bear interest at the Reserve Interest Rate.
15.4 Maintenance of Security Cover: each Supplier shall be required to
provide and at all times thereafter maintain a Security Amount equal to
or more than the Security Cover applicable to it in such aggregate
amount as shall be set from time to time in accordance with this Part
3. Immediately upon any reduction occurring in the Security Amount
provided by any Supplier or any Letter of Credit being for any reason
drawn down (and including the deemed making of any loan to that
Supplier under the provisions of paragraph 21.1.3 or 21.1.5) the
Supplier will procure that new Letters of Credit are issued or existing
Letters of Credit are reinstated (to the satisfaction of the Pool Funds
Administrator) to their full value or cash is placed to the credit of
the Pool Reserve Account in an amount required to restore the Security
Amount to an amount at least equal to the Security Cover applicable to
the Supplier, and in such proportions of Letters of Credit and cash as
this Part 3 requires. Not later than 10 Business Days before any
outstanding Letter of Credit is due to expire, the Supplier providing
such Letter of Credit shall procure to the satisfaction of the Pool
Funds Administrator that is required Security Amount will be available
for a further period not less than 12 months which may be done in one
of the following ways:
15.4.1 (subject to the issuing bank continuing to have the credit
rating referred to in sub-section 15.6) provide the Pool Funds
Administrator with confirmation from the issuing bank that the
validity of the Letter of Credit has been extended for a
period of not less than 12 months on the same terms and
otherwise for such amount as is required by this Part 3; or
15.4.2 provide the Pool Funds Administrator with a new Letter of
Credit issued by an issuing bank with the credit rating
required by this Schedule for an amount at least equal to the
required Security Amount applicable to it (less its balance on
the Pool Reserve Account) which Letter of Credit shall be
available for a period of not less than 12 months; or
832
15.4. procure such transfer to the Pool Funds Administration for
credit to the Pool Reserve Account as shall ensure that the
credit balance applicable to it standing to the credit of the
Pool Reserve Account shall be at lest equal to the required
Security Amount.
15.5 Failure to supply Security Cover: if a Supplier fails at any time to
provide Security Cover to the satisfaction of the Pool Funds
Administrator in accordance with the provisions of this Section 15, the
Pool Funds Administrator may at any time while such default continues,
and if at such time any Letter of Credit forming part of the Security
Cover is due to expire within nine Business Days it shall immediately,
and without notice to such Supplier, demand payment of the entire
amount of any outstanding Letter of Credit and shall credit the
proceeds of the Letter of Credit to the Pool Reserve Account to be held
on the terms and on the trusts set out in Section 5.
15.6 Substitute Letter of Credit: if the bank issuing any Suppler's Letter
of Credit ceases to have the credit rating as is set out in sub-section
1.1 under "Letter of Credit", such Supplier shall forthwith procure the
issue of a substitute Letter of Credit by a bank that has such credit
rating.
16. CREDIT MONITORING
16.1 Determination of Security Cover: the amount of Security Cover which
each Supplier shall be required to maintain and, in respect of the
amounts of Security Cover to be provided under paragraph 15.1.2 (so
long as applicable and paragraph 15.1.3 the proportions as between cash
and Letter of Credit that may be permitted, shall be determined from
time to time by the Executive Committee in consultation with the Pool
funds Administrator in accordance with this Section 16 and on the basis
of the criteria set out in sub-section 16.2, and shall be notified to
such Supplier and to the Pool Funds Administrator.
16.2 Criteria for provision of Security Cover:
16.2.1 in respect of each Supplier to which paragraph (b) of
paragraph 15.1.1 applies, the amount of Security Cover
required to be provided by such Supplier in addition to the
amounts referred to in paragraph 15.1.2 (so long as
applicable) shall be provided by Letter of Credit in an amount
to be assessed by the Executive Committee in consultation with
the Pool Funds Administrator as the aggregate amounts payable
pursuant to the Agreement by the relevant Supplier in respect
of purchases of, or as the case may be, prospective purchase
of electricity (including Ancillary Services) made by the
relevant Supplier over a 28 day period, as determined by the
Executive Committee provided that with the approval of the
Executive Committee, all or part of the required
833
Security Cover may be provided in cash credited to the Pool
Reserve Account; and
16.2.2 in respect of all Suppliers, the amounts required to be
provided by each Supplier which are referred to in paragraph
15.1.2 (so long as applicable) shall (subject as provided in
sub-section 21.12 and Section 25) be initially as to a minimum
of 20 per cent in cash and the remainder by way of Letter of
Credit; and thereafter as revised by the Executive Committee.
Such amounts shall be assessed by the Executive Committee in
consultation with the Pool Funds Administrator to cover
banking error and to minimize reductions of payments to Pool
Creditors.
16.3 Six monthly variation: in respect of paragraph 16.2.1 and 16.2.2, the
Executive Committee shall calculate two amounts for the two six-month
periods commencing 1st april and 1st October in each year and shall
advise the Pool Funds Administrator and the relevant Suppliers
accordingly. Such six monthly variation shall not apply to paragraph
16.2.2 where Section 25 is applicable.
16.4 Review of Security Cover: the Pool Funds Administrator shall keep under
review the Security Amounts relating to each Supplier and shall
promptly advise the Executive Committee and the relevant Supplier
whenever the Security Cover maintained by such Supplier is
significantly more or less than the amount required to be maintained
pursuant to this Part 3.
16.5 Increase or Decrease of Security Cover: if, after considering the
recommendations of the Pool Funds Administrator and any representations
which may be made by the relevant Supplier, the Executive Committee
determines that a Supplier's Security cover should be increased or
decreased, it shall so notify the Supplier, the Pool Funds
Administrator and the Director. If the Executive Committee determines
that such Security cover should be decreased, the Supplier consents and
the Director so approve, that reduction shall take place. The Pool
Funds Administrator shall consent to an appropriate reduction in the
available amount of outstanding Letter of Credit and/or shall repay to
the Supplier such part of the deposit held in the Pool Reserve Account
for the account of such Supplier (together with all accrued interest on
the part to be repaid) sufficient to reduce the Supplier's Security
Amount to the level of Security Cover applicable to it. If the
Executive Committee determines that the Supplier's Security Cover
should be increased, the relevant Supplier shall, within five Business
Days of notice as aforesaid, procure an additional or replacement
Letter of Credit or transfer to the Pool Funds Administrator a cash
deposit for credit to the Pool Reserve Account in an amount sufficient
to increase its Security Amount so as to be at least equal to the level
of Security Cover applicable to it.
834
16.6 Notification in respect of Security Cover: the Pool Funds Administrator
shall notify the Executive Committee, the Settlement System
Administrator and the Director promptly if:
16.6.1 a Supplier fails to provide, extend or renew a Letter of
Credit which it is required to maintain pursuant to Section
15; or
16.6.2 the Pool Funds Administrator shall make a call under any such
Letter of Credit; or
16.6.3 the Pool Funds Administrator becomes aware that a Supplier (a)
shall cease to retain an Approved Credit Rating, or (b) shall
be placed on credit watch by the relevant credit rating agency
(or becomes subject to an equivalent procedure) which in any
case casts doubt on the Supplier retaining an Approved Credit
Rating, or (c) shall be in default under the additional or
alternative security referred to in paragraph 15.1.1; or
16.6.4 the Security Amount in relation to any Supplier is at any time
less than the level of its required Security Cover for the
time being; or
16.6.5 the Pool Funds Administrator becomes aware that any bank that
has issued a Letter of Credit which has not expired ceases to
have the credit rating required by this Schedule.
16.7 Release from Security Cover Obligations: upon a Supplier ceasing to be
a Pool Member and provided that all amounts owed by the Supplier have
been duly and finally paid and that it is not otherwise in default in
any respect under the Agreement, the Supplier shall be released form
the obligation to maintain Security Cover and the Pool Funds
Administrator shall consent to the revocation of any outstanding Letter
of Credit.
16.8 No liability for amount of Security Cover: any recommendations made by
the Pool Funds Administrator pursuant to this Section 16 shall be given
in good faith. Any instructions given by the Executive Committee in
respect of the amount of Security Cover to be maintained by a Supplier,
if given in good faith, shall insofar as applicable in terms of this
Services Provider and neither the Pool Funds Administrator nor any
Committee Member shall incur any liability by reason of a Supplier's
Security Cover proving to be inadequate or excessive.
835
PART 4
BILLING AND PAYMENT PROCEDURES
17. RECEIPT AND VERIFICATION OF INFORMATION
17.1 Receipt of Information from Settlement System Administrator: not later
than 12.00 hours on the Notification Date the Pool Funds Administrator
shall require of, and take all steps available to it to procure from,
the Settlement System Administrator, and the Settlement System
Administrator shall use its best endeavours to provide to the Pool
Funds Administrator, the information referred to in sub-sections 17.2
to 17.5 (inclusive) concerning supplies of electricity and the
provision of Ancillary Services in respect of each Settlement Day.
17.2 Information for each Settlement Day: the information required in
respect of each Settlement Day is as follows:-
17.2.1 the Settlement Day:
17.2.2 the corresponding Payment Date;
17.2.3 the Settlement Run identification number;
17.2.4 the total amount owing in accordance with the Agreement
(exclusive of United Kingdom Value Added Tax) in respect of
electricity supplied and Ancillary Services provided during
each Settlement Day; and
17.2.5 the total amount owing (exclusive of United Kingdom Value
Added Tax) in respect of Ancillary Services provided during
each Settlement Day.
17.3 Information - taking of electricity: the information required
in respect of each Pool Member taking electricity in each
Settlement Day is as follows:-
17.3.1 the Pool Member's identification number;
17.3.2 the Pool Member's name; and
17.3.3 the total amount owing in accordance with the Agreement
(exclusive of United Kingdom Value Added Tax) in respect of
electricity taken by such Pool Member during each Settlement
Day including the amount owing in respect of Ancillary
Services attributable to the amount of electricity purchased
by such Pool Member.
836
17.4 Information - provision of electricity: the information required in
respect of each Pool Member providing electricity during each
Settlement Day is as follows:-
17.4.1 the Pool Member's identification number;
17.4.2 the Pool Member's name; and
17.4.3 the total amount owing in accordance with this Agreement
(exclusive of United Kingdom Value Added Tax) in respect of
electricity provided by such Pool Member during each
Settlement Day.
17.5 Information - Ancillary Services Provider: the information required in
relation to the Ancillary Services Provider in respect of each
Settlement Day is the total amount receivable in accordance with the
Agreement by the Ancillary Services Provider (exclusive of United
Kingdom Value Added Tax) for the provision of Ancillary Services during
each Settlement Day.
17.6 Verification of Information: upon receipt of the information supplied
by the Settlement System Administrator, the Pool Funds Administrator
shall verify whether, on the basis of such information, the sum of the
amounts shown to be receivable by each Pool Member in respect of its
sales of electricity plus the amount shown to be payable to the
Ancillary Services on the relevant Settlement Day is equal to the sum
of the amounts shown to be payable by each Pool Member in respect of
its purchase of electricity on the same Settlement Day.
17.7 Deemed Verification: unless the Pool Funds Administrator shall, by
close of business on the Notification Date, otherwise inform the
Settlement System Administrator, each Pool Member and the Ancillary
Services Provider to the contrary before the Payment Date, the
information provided by the Settlement System Administrator shall be
deemed to be verified.
17.8 Rectification of Errors: if the Pool Funds Administrator determines
that the information provided by the Settlement System Administrator
cannot be verified in accordance with sub-section 17.6, it shall as
soon as possible notify the Settlement System Administrator, each Pool
Member and the Ancillary Services Provider accordingly and require the
Settlement System Administrator to correct any errors and obtain the
Pool Funds Administrator's verification of the corrected information as
quickly as possible. As soon as the Pool Funds Administrator verifies
that the information provided by the Settlement System Administrator
can be verified in accordance with sub-section 17.6, the Pool Funds
Administrator shall notify the Settlement System Administrator, each
Pool Member and the Ancillary Services Provider of the verified
information required to be given pursuant to sub-section 17.6. The
settlement System Administrator shall use its best endeavours to
provide
837
such corrected information as may be necessary for the Pool Funds
Administrator to issue verification.
17.9 Amounts in Advice Notes; Adjustments:
17.9.1 the amounts to be incorporated in the Advice Notes in
accordance with sub-section 18.1 (and in all cases together
with United Kingdom Value Added Tax thereon) shall be:-
(a) if verification has been made in accordance with
sub-section 17.6, the full amounts so verified;
(b) to the extent verification can reasonably be made in
circumstances where all the information cannot be
fully verified as described in sub-section 17.6,
those amounts which are shown against the name of
each Pool Debtor in such information as is received
under the provisions of sub-section 17.1 (whether or
not such information is an estimate only) and such
amounts will be shared amongst the relevant Pool
Creditors in the proportion which the amount shown as
due to each of them in such information as aforesaid
bears to the amounts which are so shown as due to all
of them; and
(c) to the extent that for any reason whatever the
amounts to be paid cannot be verified at all
(including, but not limited to, application of Force
Majeure and failure to provide information on the
part of the Settlement System Administrator) of the
appropriate calculations to permit payment in
accordance with sub-paragraph (b) above cannot
properly be made, the same as the amounts calculated
as being payable by and to Pool Members and to the
Ancillary Services Provided in respect of the last
same day of the week in respect of which payments
were verified under sub-section 17.6 (provided that
any Pool Member who was not at that earlier time a
Pool Member, or vice versa, shall be ignored and such
adjustment made as the Pool Funds Administrator
considers appropriate).
17.9.2 in the event that payments are made in the circumstances set
out in paragraph 17.9.1(b) or (c), the Settlement System
Administrator in conjunction with the Pool Funds Administrator
shall, as soon as actual verification an thereafter be made,
make such adjustments as may be necessary (and, where
relevant, apply interest at the Reserve Interest Rate or at
such rate as shall be set from time to time by the Executive
838
Committee) to account for any differences between payments
made and actual verified payment information.
17.10 Postponed Payment Date: if for any reason beyond the reasonable control
of the Pool Funds Administrator it is not possible, after application
of sub-section 17.9, for the Pool Funds Administrator to determine by
the close of business on the Notification Date the amounts to be
incorporated in the Advice Notes, the Pool Funds Administrator shall
inform the Settlement System Administrator, each Pool Member and the
Ancillary Services Provider that the Payment Date shall be postponed so
the Pool Funds Administrator verifies the information provided by the
Settlement System Administrator pursuant to sub-section 17.6 (any such
Payment Date being the "Postponed Payment Date" and a reference to a
Payment Date in this Schedules shall where applicable include a
reference to a Postponed Payment Date). On the Postponed Payment Date,
each Pool Member who took electricity on the Settlement Day to which
the Postponed Payment Date applies shall pay interest on all such
amounts for each day from and including the originally scheduled
Payment Date to (but excluding) the Postponed Payment Date at such rate
as shall be set from time to time by the Executive Committee or, in the
absence of such rate, at the Reserve Interest Rate and all Pool Members
who supplied electricity and the Ancillary Services Provider on such
Settlement Day shall be entitled to receive in addition to the amounts
that they are entitled to receive in respect of such supplies, interest
on such amounts for each day during the same period and at the same
rate. Interest shall accrue from day to day and shall be calculated by
the Pool Funds Administrator on a 365 day year basis.
17.11 Further notification: where instructed by the Executive Committee, or
where there is an award by a Court of competent jurisdiction or an
arbitrator, or a decision of the Pool Auditor or where rendered
appropriate by Clause 52, the Pool Funds Administrator shall issue
further or other notification to the Pool Members and the Ancillary
Services Provided in accordance with the provisions of this Section 17;
and the Business Day which falls five Business Days after the date of
such notification or earlier if practicable shall be a Payment Date.
17.12 Payment by Pool Debtor: without prejudice to its obligations in respect
of supplies of electricity in accordance with the provisions of the
Agreement, each Pool Debtor shall without defense, set-off or
counterclaim (but without prejudice to any other rights or remedies
available to such Pool Debtor) make payment on the relevant Payment
Date of the full amount (including United Kingdom Value Added Tax) so
notified as being payable by it for the account of those pool members
and, as the case may be, the Ancillary Services Provider so notified as
being entitled to receive payments. Payment shall be made in accordance
with the terms of this Schedule. For the avoidance of doubt no payment
made shall be treated as being paid on account or subject to any
condition or reservation, notwithstanding the provisions for the making
of subsequent adjusting payments provided in this Schedule. The
839
provisions of sub-section 5.14 shall apply to any payment insofar as it
is or may constitute an overpayment.
17.13 Liability several: save as otherwise expressly provided, the liability
of each Pool Member for amounts payable by it pursuant to this Schedule
is several and no Pool Member shall be liable for the default of any
other Pool Member.
18. ADVICE NOTES
18.1 Despatch of Advice Notes: not later than 17.00 hours on the relevant
Notification Date (and, if this is not practicable, in good time (as
that expression is explained in more detail in the relevant Agreed
Procedure) to enable Pool Members and the Ancillary Services Provider
to give all necessary instructions for payments to be effected on the
relevant Payment Date) the Pool Funds Administrator shall:-
18.1.1 despatch to Pool Members and the Ancillary Services Provider
Advice Notes showing amounts (inclusive of United Kingdom
Value Added Tax) which, according to its calculations, are to
be paid by or to each Pool Member and the Ancillary Services
Provider on each Payment Date in respect of supplies of
electricity and the provision of Ancillary Services during
each Settlement Day to which that Notification Date relates;
18.1.2 notify each Settlement Bank of amounts payable by the Pool
Members or the Ancillary Services Provider maintaining a
Settlement Account at the relevant Settlement Bank; and
18.1.3 notify the Pool Banker of the amount to be remitted to the
Pool Clearing Account by each Settlement Bank.
18.2 Method of despatch: all Advice Notes shall be despatched by the means
established in accordance with paragraphs 3.1.1 and 3.1.5, or by such
other means as the Executive Committee may reasonably direct.
18.3 Content of Advice Notes: all Advice Notes will include an appropriate
indication if payment is being made under the provisions of paragraph
17.9.1(b), 17.9.1(c) or 17.9.2.
18.4 Interest: where interest is payable by or to any Pool Member or the
Ancillary Services Provider pursuant to this Schedule, the Pool Funds
Administrator shall, at the same time as it despatches the Advice
Notes, despatch to each Pool Member and the Ancillary Services Provider
who is required to pay interest and to each Pool Member and the
Ancillary Services Provider who is entitled to receive interest a
statement showing the amount of interest payable or receivable by it,
the rate of interest applicable thereto and the amount (if any) of tax
to be withheld.
840
19. PAYMENT PROCEDURE
19.1 Instructions for payment: each Pool Member and the Ancillary Services
Provider shall, in respect of each Payment Date on which it is under an
obligation to make a payment under this Schedule, make such
arrangements as will ensure that such payment is credited to the
relevant Collection Account in sufficient time to allow such Settlement
Bank to make irrevocable arrangements to remit to the Pool Clearing
Account by 12.30 hours the amount payable by that Pool Member or (as
the case may be) the Ancillary Services Provider in respect of that
Payment Date. Each Pool Member and the Ancillary Services Provider
shall ensure all remittances by its bank to the relevant Collection
Account shall be remittances for value on the relevant Payment Date.
19.2 Pool Funds Administrator's responsibilities:
19.2.1 As soon as practicable and in any event not later than 13.00
hours on each Payment Date the Pool Funds Administrator shall
take such action as is required to ensure that all amounts
required to be credited to each Collection Account on such
Payment Date have been so credited (or if not so credited, the
reason therefor established).
19.2.2 As soon as practicable and in any event not later than 13.30
hours on each Payment Date the Pool Funds Administrator shall
take such action as is required to ensure that all amounts
credited to each Collection Account on such Payment Date in
accordance with sub-section 19.1 have been remitted to the
Pool Clearing Account.
19.3 Non-payment by Pool Member: if a Pool Member becomes aware that a
payment for which it is responsible will not be credited to the
relevant Collection Account by 12.30 hours on the relevant Payment
Date, it will immediately notify the Pool Funds Administrator, giving
all details available to the Pool Member. The Pool Funds Administrator
shall, as soon as it becomes aware that payment will not be remitted,
use its best endeavours to establish the cause of non-payment.
19.4 Excess payments: if by 12.30 hours on any Payment Date the Pool Funds
Administrator is advised by a Settlement Bank that the Settlement Bank
will be making a payment in excess of the amount notified to the Pool
Member pursuant to sub-section 18.1 in respect of that Payment Date, or
if the Pool Banker notifies the Pool Funds Administrator by 13.30 hours
that amounts greater than the amounts notified to the Pool Banker
pursuant to paragraph 18.1.3 have been credited to the Pool Clearing
Account, the Pool Funds Administrator shall use its best endeavours to
ascertain the nature of the excess payment, to calculate the
entitlement to such payment and to instruct the Pool Banker by 13.30
hours that day to credit the appropriate Settlement Account(s) with the
amount determined by the Pool Funds
841
Administrator as falling due to each Pool Creditor in accordance with
this Schedule provided that, where an External Pool Member makes a
payment in excess of the amount owing by it on any Payment Date and the
reason for such overpayment is the difficulty in remitting funds on a
future Payment Date because of the mismatch of bank and public holidays
between countries, the Pool Funds Administrator shall instruct the Pool
Banker to credit the Pool Reserve Account with the amount of the
excess. Any Pool Member who instructs its bank to make a payment in
excess of the amount owing by that Pool Member on any Payment Date
shall simultaneously with giving such instructions advise the Pool
Funds Administrator in writing of the amount of the excess payment
providing a description of what the Pool Member considers the excess
payment relates to.
19.5 Payment to Pool Creditors: the Pool Funds Administrator shall, prior to
14.30 hours on each day, calculate the amounts available for
distribution to Pool Creditors on that day. As soon as practicable and
not later than 14.30 hours on that day the Pool Funds Administrator
shall give irrevocable instructions to the Pool Banker to remit from
the Pool Clearing Account to the relevant Settlement Accounts
maintained by the Pool Creditors the aggregate of amounts determined by
the Pool Funds Administrator to be available for payment to Pool
Creditors and, if required, to transfer amounts from the Pool Reserve
Account or the Pool Borrowing Account to the Pool Clearing Account or
vice versa.
19.6 Making good the Pool Reserve Account: if the Pool Reserve Account is
debited or credited in or towards clearing the Pool Clearing Account,
the Pool Funds Administrator shall as soon as possible thereafter take
the necessary steps, including making any calculations or taking any
action in accordance with Section 21, to reverse the debit or credit to
the Pool Reverse Account and/or to make a call under a Letter of
Credit.
19.7 Prohibition on transfers: the Pool Funds Administrator shall not at any
time instruct the Pool Banker to transfer any sum from a Pool Account
to another account (not being a Pool Account) unless that account is a
Settlement Account.
19.8 Application of payments: where payments in respect of more than one
Settlement Day are required to be settled on a Payment Date, payments
in respect of the longest outstanding Settlement Day shall be, and be
deemed to be, settled first.
19.9 Bank contacts: upon written request of the Pool Funds Administrator each
Pool Member and the Ancillary Services Provider shall provide the Pool Funds
Administrator in writing with the name of, and communication details for, one or
more individuals at the branch of its Settlement Bank from which payments or
payment instructions required to be made or given by it pursuant to this
Schedule originate (the "Local Branch") who is (are) familiar with the payment
procedures set out in this Section 19 applicable to such Pool Member or (as the
case may be) the Ancillary Services Provider, and shall promptly advise
842
the Pool Funds Administrator in writing of any change of any such individual or
his communication details. Each Pool Member and the Ancillary Services Provider
hereby authorizes the Pool Funds Administrator to contact any such individual to
enquire in respect of any Payment Date whether and in respect of what amount
instructions have been given for the remittance of any payment required to be
made by such Pool Member or (as the case may be) the Ancillary Services Provider
under this Schedule and/or whether such payment has been remitted or otherwise
made as provided for in this Schedule, and undertakes not to withdraw, qualify
or revoke such authority at any time. Each Pool Member and the Ancillary
Services Provider shall instruct its Local Branch to co-operate with the Pool
Funds Administrator accordingly and to provide the Pool Funds Administrator with
all such information as is necessary to answer such enquiries. The Pool Funds
Administrator shall comply with all reasonable security arrangements imposed by
the relevant Pool Member or the Ancillary Services Provider or any Local Branch.
20. ALTERNATIVE PAYMENT PROCEDURE
20.1 Alternative Payment procedure: without prejudice to other obligations
in the Agreement not substituted by the provisions of this Section 20,
the provisions set out in this Section 20 shall apply:-
20.1.1 if, on the Effective Date, it has not been possible to
establish the Notified Payments System (in which case they
shall continue to apply until the Notified Payments System is
established, or until such other time as the Executive
Committee may determine); or
20.1.2 if, for any reason, it is not possible to apply the procedures
contemplated by the Notified Payments System and for so long
as it is not possible to apply such procedures.
20.2 Pool Debtor to effect remittance: each Pool Debtor shall, in respect of
each Payment Date on which it is under an obligation to make a payment
under the Agreement, give instructions to its bank, which it undertakes
not to qualify, withdraw or revoke, to effect remittance to the Pool
Clearing Account of the amount payable by that Pool Member to be
received on that Payment Date.
20.3 Receipt of remittance: any remittance must be received by the Pool
Banker in the Pool Clearing Account no later than 12.30 hours on the
Payment Date unless arrangements have been made between the Pool Banker
and the relevant Pool Member which shall be notified to the Pool Funds
Administrator and which are satisfactory to the Pool Banker such that
funds will be received for value on that Payment Date. The Pool Members
shall ensure that instructions are given to their banks in sufficient
time to ensure that their respective banks comply with this time limit.
843
20.4 Method of remittance: the Parties acknowledge and agree that when
practicable to give effect to sub-section 20.3 a Pool Debtor shall
cause remittances to be effected through CHAPS but, where not
practicable or where the amount payable is less than the minimum
individual amount then processed through CHAPS, the Pool Member shall
ensure by whatever means at its disposal that remittance for value on
the relevant Payment Date is made for credit to the Pool Clearing
Account not later than 12.30 hours.
20.5 Notification of non-payment: the Parties acknowledge and agree that if
a Pool Debtor becomes aware that a payment for which it is responsible
will not be remitted to the Pool Banker by 12.30 hours on the relevant
day, and where satisfactory arrangements, as referred to in sub-section
20.3 have not been made, it shall immediately notify the Pool Funds
Administrator, giving all details available to that Pool Debtor.
20.6 Payment default: if the Pool Funds Administrator determines at any time
after 12.30 hours on any day that a remittance which should have been
credited on that day to the Pool Clearing Account has not been made (or
that the credit has not been received) (in whole or in part) and where
satisfactory arrangements, as referred to in sub-section 20.3, have not
been made, the provisions of Section 21 shall apply mutatis mutandis.
20.7 Late payment: if, after the Pool Funds Administrator shall, prior to
14.30 hours on each day, calculate the amounts available for
distribution to Pool Creditors on that day (including amounts resulting
from the application of sub-section 20.6). Not later than 14.30 hours
on that day the Pool Funds Administrator shall give instructions to the
Pool Banker, which it undertakes not to qualify, withdraw or revoke, to
make same day value remittances to the Pool Creditors.
20.9 Construction: where the provisions of this Section 20 apply references
in Sections 5 and 18 and sub-section 21.1 to "Settlement Bank" and
"Collection Account" shall be construed as references to "bank" and
"Pool Clearing Account" respectively.
21. PAYMENT DEFAULT
21.1 Payment default: subject as provided by sub-section 21.12, if, by 12.30
hours on a Payment Date, the Pool Funds Administrator has been notified
by a Settlement Bank or it otherwise has reason to believe that a
Settlement Bank will not remit to the Pool Clearing Account all or any
part (the "amount in default") of any amount which has been notified by
the Pool Funds Administrator as being payable by a Pool Debtor (the
"non-paying Pool Debtor") on the relevant Payment Date in sufficient
time to ensure that such amount can be cleared through the Pool
Clearing Account not later than the close of banking business on such
Payment Date, the Pool Funds Administrator shall act in accordance with
the following provisions (or whichever of
844
them shall apply) in the order in which they appear until the Pool
Funds Administrator is satisfied that the Pool Clearing Account will
clear not later than the close of business on the relevant Payment
Date:-
21.1.1 if the Pool Funds Administrator has been able to identify the
non-paying Pool Debtor in sufficient time to apply this
paragraph 21.1.1 and to the extent that the non-payment Pool
Debtor is entitled to receive payment from any Pool Debtor
pursuant to this Schedule on the relevant Payment Date, then
the Pool Funds Administrator shall (unless it reasonably
believes that such set-off shall be unlawful) set off the
amount of such entitlement against the amount in default;
21.1.2 if the Pool Funds Administrator has been able to identify the
non-paying Pool Debtor in sufficient time to apply this
paragraph 21.1.2, the Pool Funds Administrator shall debit the
Pool Reserve Account and credit the Pool Clearing Account with
a sum not exceeding the amount of funds standing to the credit
of the non-paying Pool Debtor in the Pool Reserve Account;
21.1.3 subject to sub-section 21.2, the Pool Funds Administrator
shall debit the Pool Reserve Account and credit the Pool
Clearing Account with a sum not exceeding the amount of funds
then standing to the credit of the Poll Reserve Account to the
extent that they represent Security Cover provided in
accordance with paragraph 15.1.2, the transfer of such amount
as is not attributable to the funds standing to the credit of
the non-paying Pool Debtor by each Supplier rateably according
to its share of the funds standing to the credit of the Pool
Reserve Account to the extent that they represent Security
Cover provided in accordance with paragraph 15.1.2, at the
time immediately prior to the transfer, such loans to be
repayable on demand and to carry interest at the Reserve
Interest Rate and in any case repayable not later than two
Business Days after they arise after which, to the extent that
any such loans remain outstanding, such loans shall carry
interest at the Default Interest Rate (which interest shall be
credited to the relevant Supplier's Pool Ledger Account). Each
Supplier hereby irrevocably authorizes the Pool Funds
Administrator to advance, collect in and enforce payment of
such loans for its account and on its behalf and each Pool
Member hereby irrevocably consents to the making of such loans
to the extent that such Pool Member has a share in the Pool
Reserve Account;
21.1.4 if the Pool Funds Administrator has been able to identify the
non-paying Pool Debtor in sufficient time to apply this
paragraph 21.1.4 and provided that the Pool Funds
Administrator is satisfied that the proceeds of a call under
the Letter of Credit will be paid into the Pool Clearing
Account in
845
sufficient time to ensure that it will clear not later than
the close of business on the relevant Payment Date, the Pool
Funds Administrator shall make a call under the Letter of
Credit supplied by the non-paying Pool Debtor in a sum not
exceeding the available amount of all such Letter of Credit,
and the Pool Funds Administrator shall cause the proceeds of
such call or calls to be paid into the Pool Clearing Account;
21.1.5 subject to sub-section 21.2 and provided that the Pool Funds
Administrator is satisfied that the proceeds of a call under a
Letter of Credit will be paid into the Pool Clearing Account
in sufficient time to ensure that it will clear not later than
the close of business on the relevant Payment Date, the Pool
Funds Administrator shall make a call under one or more
Letters of Credit supplied by Pool Members (other than the
non-paying Pool Debtor) in a total sum not exceeding the total
available amount of all such Letters of Credit to the extent
that such amount represents Security Cover provided in
accordance with paragraph 15.1.2, and the Pool Funds
Administrator shall cause the proceeds of such call or calls
to be paid into the Pool Clearing Account. The transfer of
such proceeds into the Pool Clearing Account shall be deemed
to give rise to a series of loans to the non-paying Pool
Debtor by each Supplier whose Letter of Credit was called
rateably according to the amounts called udder their
respective Letter of Credit, such loans to be repayable on
demand and to carry interest at the Reserve Interest Rate and
in any case repayable not later than two Business Days after
they arise after which, to the extent that any such loans
remain outstanding, such loans shall carry interest at the
Default Interest Rate (which interest shall be credited to the
relevant Supplier's Pool Ledger Account). Each Supplier hereby
irrevocably authorizes the Pool Funds Administrator to
advance, collect in and enforce payment of such loans for its
account and on its behalf and each Pool Member hereby
irrevocably consents to the making of such loans to the extent
that such Pool Member has a share in the Pool Reserve Account;
21.1.6 if and to the extent that, notwithstanding application of the
foregoing measures, it is not possible to clear the Pool
Clearing Account by any of the foregoing means, the Pool Funds
Administrator shall reduce payments to all Pool Creditors in
proportion to the amounts payable to them on the relevant
Payment Date by an aggregate amount equal to the amount
necessary to clear the Pool Clearing Account and shall account
for such reduction in the Pool Ledger Accounts as amounts due
and owing by the non-paying Pool Debtor to each Pool Creditor
whose payments were reduced.
21.2 Amounts in default likely to be remedied: the Pool Funds Administrator
shall not apply paragraph 21.1.3 or 21.1.5 unless it considers in good
faith that the amount in
846
default is likely to be remedied by the non-paying Pool Debtor no later
than the next Business Day and in such a case the Pool Funds
Administrator shall only apply paragraphs 21.1.2 and 21.1.4 to the
extent of any amounts provided by way of Security Cover pursuant to
paragraph 15.1.2.
21.3 Loans part of Pool Reserve Assets: any loans arising pursuant to
paragraph 21.1.3 or 21.1.5 shall be deemed to constitute part of the
Pool Reserve Assets and all repayments of such loans, together with
interest thereon, shall be paid into the Pool Reserve Account for the
account of each Supplier who is deemed to have made such loan.
21.4 Repayment of loans: if any loans to a non-paying Pool Debtor arising
pursuant to paragraph 21.1.3 or 21.1.5 shall not have been repaid in
full (together with interest at the rate or rates specified therein) by
12.00 hours on the next Business Day after such loan is deemed to have
arisen, the Pool Funds Administrator shall make a call under the Letter
of Credit (if any) which shall been supplied by the non-paying Pool
Debtor and which remains outstanding in an amount not exceeding the
amount necessary to repay such loans and all accrued interest in full
and, if the proceeds of any Letter of Credit are insufficient to repay
all outstanding loans to the relevant non-paying Pool Debtor, such
proceeds shall be applied towards repayment of each such outstanding
loan rateably.
21.5 Reduction of payments to Pool Creditors: if, after the date that any
loans to a non- paying Pool Debtor arise pursuant to paragraph 21.1.3
or 21.1.5, the Pool Funds Administrator shall reasonably be of the
opinion that the non-paying Pool Debtor will not repay forthwith all of
such loans and all accrued interest in full or the loans have not been
repaid with all interest within two Business Days after they arose
(whichever occurs first), the Pool Funds Administrator shall reduce
payments to all Pool Creditors in proportion to the amounts payable to
them on the Payment Date to which the default relates and any
succeeding Payment Dates as may be required by an aggregate amount
necessary to restore the balance in the Pool Reserve Account to the sum
for the time being required under this Schedule to be deposited by the
Pool Members other than the non-paying Pool Debtor, to the intent that
all loans arising under paragraphs 21.1.3 and 21.1.5 and remaining
undischarged after application of the non-paying Pool Debtor's Letter
of Credit are discharged in full together with interest thereon at the
Reserve Interest Rate.
21.6 Obligation to make calls: if and whenever the Pool Funds Administrator
has not applied the provisions of paragraph 21.1.4, and has reduced
payments to Pool Creditors in accordance with paragraph 21.1.6, it
shall, on the relevant Payment Date or so soon thereafter as the
non-paying Pool Debtor has been identified (but, in any event, not
later than the close of business on the Business Day following such
Payment Date) make a call under the Letter of Credit supplied by the
non-paying Pool Debtor in a sum sufficient to cover the reduction made
under paragraph 21.1.6
847
(but not exceeding the available amount of all such Letters of Credit)
and the Pool Funds Administrator shall cause the proceeds of such call
to be paid forthwith into the Pool Reserve Account. On the next
Business Day following receipt of such proceeds, the Pool Funds
Administrator shall pay such amounts as have been credited to the Pool
Reserve Account to the Pool Creditors whose payments were reduced in
full or (as the case may be) in proportion to their respective
entitlement including interest on such amounts at the Reserve Interest
Rate.
21.7 Indemnification by non-paying Pool Debtor: the non-paying Pool Debtor
shall indemnify and keep indemnified each Pool Member whose Letter of
Credit is called under paragraph 21.1.5 and/or who is deemed to have
made loans under paragraph 21.1.3 or 21.1.5 on demand against all
costs, expenses and losses (including the costs of management time)
suffered or incurred by such Pool Member arising from its Letter of
Credit being so called (including the costs of reinstating the same) or
such loans being deemed to have been made to the extent that such Pool
Member is not compensated under this Section 21. This indemnity shall
be in addition to or without prejudice to the liability of the
non-paying Pool Debtor to repay the loan, together with accrued
interest, which arises pursuant to paragraph 21.1.5. The Pool
Creditors, in proportion to the amounts payable to them on the Payment
Date to which a default relates in respect of which the Pool Funds
Administrator has operated sub-section 21.5, and any succeeding Payment
Dates as may be required, shall indemnify and keep indemnified each
Pool Member as is referred to in the earlier provisions of this
sub-section 21.7 to the extent of any failure by the non- paying Pool
Debtor to fulfill its obligations under this sub-section 21.7.
21.8 Notification of Pool Creditors: the Pool Funds Administrator shall use
all reasonable endeavours promptly to notify the relevant Pool
Creditors whenever it makes any such reduction as is referred to in
paragraph 21.1.6.
21.9 Default Interest: save as otherwise provided in the Agreement
(including where an express rate of interest is provided), if any
amount payable by any Pool Debtor pursuant to this Schedule is not
given value for the due date by close of banking business on the due
date the Pool Debtor shall on written demand by the Pool Funds
Administrator pay to the Pool Funds Administrator, for the account of
the person or persons entitled to receive the amount in default,
interest on such amount from the due date up to the day of actual
receipt by the Pool Funds Administrator (as well after as before
judgment) at the Default Interest Rate.
21.10 Application of payments: any amount received by the Pool Funds
Administrator from a non-paying Pool Debtor for the credit of any Pool
Account shall be applied by the Pool Funds Administrator in or towards
payment of amounts payable by the non-paying Pool Debtor to Pool
Creditors on each successive Payment Date in respect of which there is
an outstanding default (with the longest outstanding default being
settled first).
848
21.11 Clearing of Pool Clearing Account: all amounts standing to the credit
of the Pool Clearing Account at the close of business on any Payment
Date shall be transferred to the Pool Reserve Account so that the
balance in the Pool Clearing Account shall at the end of such day be
nil.
21.12 Credit Facility: if and for so long as the Credit Facility remains
unconditionally available, the provision of this Section 21 shall apply
with the modifications provided by Section 25.
22. CONFIRMATION NOTICES
22.1 Despatch of Confirmation Notices: within two Business Days after each
Payment Date the Pool Funds Administrator shall issue a Confirmation
Notice to each Pool Member and the Ancillary Services Provider in
respect of the corresponding Payment Date setting out the information
required in sub-sections 22.2, 22.3, and 22.4.
22.2 Information - taking of electricity: the information required on a
Confirmation Notice in respect of each Pool Member taking electricity
on each Settlement Day is as follows:-
22.2.1 the Pool Member's identification number;
22.2.2 the Pool Member's name;
22.2.3 the total amount (inclusive of United Kingdom Value Added Tax)
received in the Pool Clearing Account on the relevant Payment
Date by the Pool Funds Administrator in respect of electricity
taken by such Pool Member during the Settlement Day and
Ancillary Services attributable thereto;
22.2.4 the amount received in the Pool Clearing Account on the
relevant Payment Date by the Pool Funds Administrator in
respect of electricity taken by such Pool Member during the
Settlement Day and Ancillary Services attributable thereto,
exclusive of United Kingdom Value Added Tax; and
22.2.5 the amount of United Kingdom Value Added Tax received in the
Pool Clearing Account on the Payment Day by the Pool Funds
Administrator in respect of electricity taken by such Pool
Member during the Settlement Day and Ancillary Services
attributable thereto.
22.3 Information - supplies of electricity: the information required on a
Confirmation Notice in respect of each Pool Member supplying
electricity on each Settlement Day shall include:-
849
22.3.1 the Pool Member's identification number;
22.3.2 the Pool Member's name;
22.3.3 the Settlement Run identification number;
22.3.4 the total amount (inclusive of United Kingdom Value Added Tax)
paid out of the Pool Clearing Account on the relevant Payment
Date by the Pool Funds Administrator in respect of electricity
supplied by such Pool Member during the Settlement Day;
22.3.5 the amount paid out and the date on which such amount is paid
out of the Pool Clearing Account on the relevant Payment Date
by the Pool Funds Administrator in respect of electricity
supplied by such Pool Member during the Settlement Day
exclusive of United Kingdom Value Added Tax and the Settlement
Run identification number; and
22.3.6 the amount of United Kingdom Value Added Tax paid out of the
Pool Clearing Account on the relevant Payment Date by the Pool
Funds Administrator in respect of electricity supplied by such
Pool Member during the Settlement Day.
22.4 Information - Ancillary Services Provider: the information required on
a Confirmation Notice in respect of the Ancillary Services Provider is
as follows:-
22.4.1 the total amount receivable by the Ancillary Services Provider
(exclusive of United Kingdom Value Added Tax) for the
provision of Ancillary Services during the Settlement Day;
22.4.2 the total amount receivable by the Ancillary Services Provider
(inclusive of United Kingdom Value Added Tax) for the
provision of Ancillary Services during the Settlement Day; and
22.4.3 the total amount of United Kingdom Value Added Tax receivable
by the Ancillary Services Provider for the provision of
Ancillary Services during the Settlement Day.
22.5 Interest: where interest has been paid to any Pool Member or the
Ancillary Services Provider, the Pool Funds Administrator shall
promptly after such payment provide to each Pool Member and the
Ancillary Services Provider a statement showing the amount of interest
paid or received, the rate of interest applicable thereto and the
amount (if any) of tax withheld. If applicable, the Pool Funds
Administrator shall provide to the relevant Pool Member or the
Ancillary Services Provider an appropriate tax deduction certificate in
respect of any withholding tax.
850
23. PAYMENT ERRORS
23.1 Overpayments: if for any reason whatsoever (including the negligence of
the Pool Banker or the Pool Funds Administrator) a Pool Creditor
receives on any Payment Date a payment in excess of the amount
disclosed in the Pool Ledger Account as calculated as being payable to
it (an "overpayment" (including but not limited to the proceeds of any
loan made or deemed to be made in accordance with Section 21 or Section
25 to any non-paying Pool Debtor which becomes insolvent before such
advance is repaid) the provisions of sub-section 5.15 apply, and the
Pool Creditor shall forthwith notify the Pool Funds Administrator of
the amount of the overpayment and shall forthwith pay the overpayment
into a Pool Account specified by the Pool Funds Administrator.
23.2 Repayment of overpayment (1): if prior to a Pool Creditor notifying the
Pool Funds Administrator of the overpayment, the Pool Funds
Administrator receives notice (from the Pool Banker or otherwise) of
the overpayment, the Pool Funds Administrator shall forthwith require
(by written notice) that the recipient of the overpayment pay the
overpayment to a Pool Account specified by the Pool Funds Administrator
and any Pool Creditor who receives such notice shall forthwith pay the
amount to an account specified by the Pool Funds Administrator. If the
overpayment is repaid within two Business Days of receiving the notice,
the overpayment (or any part not paid) shall bear interest at the
Reserve Interest Rate of at such rate as shall be set from time to time
by the Executive Committee from the date the overpayment was received
up to the date that value is given in a Pool Account by the Pool Funds
Administrator (as well after as before judgment). Any overpayment (or
part thereof) not repaid within two Business Days after demand therefor
in accordance with this Section 23 shall bear interest at the Default
Interest Rate from the expiry of that period and shall be recoverable
in accordance with Section 24. The Pool Funds Administrator shall
account to those entitled to payment by reason of an overpayment.
23.3 Repayment of overpayment (2): upon receipt of the overpayment
(including any interest) the Pool Funds Administrator shall (forthwith
upon entitlement to it being ascertained) pay the amount received to
the Pool Member or the Ancillary Services Provider who should have
received the payment on the Payment Date.
23.4 Underpayments: if for any reason whatsoever (including the negligence
of the Pool Banker or the Pool Funds Administrator) a Pool Creditor
does not receive on the relevant Payment Date the full amount disclosed
as owing to it pursuant to the Pool Ledger Account (an "underpayment")
that Pool Creditor shall forthwith notify the Pool Funds Administrator
of the amount of the underpayment, and the Pool Funds Administrator
after consultation with the Pool Banker shall use all reasonable
endeavours to identify such person as shall have received any
corresponding overpayment and promptly to correct the underpayment. If,
by reason of
851
negligence, the Pool Funds Administrator holds or has under its control
amounts which it ought properly to have paid to Pool Members, such Pool
Members shall be entitled to interest on such amounts at the Default
Interest Rate and for such period as the Pool Funds Administrator
improperly holds or has such amounts under its control.
24. ENFORCEMENT OF CLAIMS
24.1 Notification of amount in default: without prejudice to the provisions
of Section 21, if a Pool Member shall fail to pay any amount payable
pursuant to this Schedule on the due date, the Pool Funds Administrator
shall notify the Director, the Executive Committee and each Pool
Creditor to whom the amount in default is owed pursuant to this
Agreement of the name of the non-paying Pool Debtor, the aggregate
amount in default and the amount owed to each Pool Creditor.
24.2 Duties of Pool Funds Administrator: except as otherwise expressly
provided in this Schedule, the Pool Funds Administrator shall not be
required to ascertain or enquire as to the performance or observance by
any Pool Member or the Ancillary Services Provider of its obligations
under the Agreement and shall have no duty to inform the Executive
Committee or any Pool Member or the Ancillary Services Provider of any
default, other than a failure to pay as may come to its attention.
24.3 Notice before action: each Pool Creditor shall give notice to the Pool
Funds Administrator before instituting any action or proceedings in any
court to enforce payments due to it pursuant to this Schedule. Upon
receipt of any notice under this sub-section 24.3, the Pool Funds
Administrator will as soon as practicable notify the Executive
Committee, all Pool Members, the Settlement System Administrator, the
Ancillary Services Provider and the Director.
24.4 Proceedings to Recover Overdue Amounts: without prejudice to the right
of any Pool Member to bring such proceedings as it sees fit in
connection with matters related to the Agreement, the Pool Funds
Administrator shall, if instructed to do so by the Executive Committee,
bring proceedings against a Pool Member (on behalf of those Pool
Members who have indicated their willingness to the Executive Committee
for the Pool Funds Administrator first so to act) for the recovery of
any amounts due by that Pool Member pursuant to this Schedule so long
as the Pool Funds Administrator has first reached agreement with the
Executive Committee and the Pool Members as to appropriate
remuneration, is indemnified to its reasonable satisfaction or, if it
so requires, provided that it shall have received such security as it
may reasonably request against all costs, claims, expenses (including
legal fees) and liabilities which it will or may sustain or incur in
complying with such instructions. Save as provided in the foregoing
provisions of this sub-section 24.4, the Pool Funds Administrator shall
not be obliged to bring any such proceedings.
852
25. CREDIT FACILITY: PAYMENT DEFAULTS
25.1 Purpose of Credit Facility: It is acknowledged that the Credit Facility
provides an alternative to the Security Cover referred to in paragraph
15.1.2 and the Pool Funds Administrator will use the Credit Facility to
cover banking error and payment error and to minimize reductions of
payments to Pool Creditors unless it consider in good faith that an
amount in default is not likely to be remedied by the non-paying Pool
Debtor no later than the next Business Day.
25.2 Modification of other provisions of this Schedule: if and so long as
the Credit Facility is unconditionally available to the Pool Funds
Administrator (whether or not there remains any amount undrawn),
paragraphs 15.1.2, 21.1.3 and 21.1.5 shall be of no effect and the
remaining provisions of this Schedule shall be implemented on the basis
that the following sub-sections apply.
25.3 Payment default: the Pool Funds Administrator shall operate the Credit
Facility on the following basis:-
25.3.1 the Credit Facility may be drawn down by the Pool Funds
Administrator if, by 12.30 hours on any Payment Date, there is
an amount in default unless the Pool funds Administrator
considers in good faith that the amount in default is not
likely to be remedied by the non-paying Pool Debtor no later
than the next Business Day;
25.3.2 if paragraph 25.3.1 applies such that the Credit Facility may
be drawn down, the Pool Funds Administrator will first act in
accordance with paragraph 21.1.1, will then draw on the Credit
Facility for an amount not exceeding the available amount
under the Credit Facility (after allowing for any repayment to
be made to the Facility Bank under sub-section 25.6) and, if
it is not possible to clear the Pool Clearing Account by
either or both of those means, it will then act in accordance
with paragraph 21.1.6;
25.3.3 if paragraph 25.3.1 does not apply, then the Pool funds
Administrator will act in accordance first with paragraph
21.1.1, then with paragraph 21.1.2, then with paragraph 21.1.4
and only then with paragraph 21.1.6.
25.4 Amounts in default: each non-paying Pool Debtor will be responsible in
relation to any amount in default in accordance with the following
paragraphs:-
25.4.1 each non-paying Pool Debtor will be responsible for the
repayment of all amounts of principal drawn down under the
Credit Facility in respect of any amount in default relating
to that Pool Debtor as if the Pool Funds Administrator had
made a loan to such Pool Debtor of the relevant amount and the
amounts so payable are to be paid to, or otherwise made
available
853
for credit to, the Pool Clearing Account as soon as possible,
but in any event no later than two Business Days after the
relevant Payment Date;
25.4.2 each non-paying Pool Debtor will be responsible also for
interest (determined in accordance with paragraph 25.4.4) on
all amounts of principal drawn down under the Credit Facility
in respect of any amount in default relating to that Pool
Debtor as if the Pool Funds Administrator had made a loan to
such Pool Debtor of the relevant amount and the amount so
payable by way of interest is to be paid to, or otherwise made
available for credit to, the Pool Clearing Account by no later
than the day notified by the Pool Funds Administrator to such
Pool Debtor for payment thereof (being the date which is 2
Business Days prior to the date on which interest is payable
under the Credit Facility by the Pool Funds Administrator to
the Facility Bank for the month in which the principal amount
in question was outstanding);
25.4.3 each non-paying Pool Debtor will further be responsible for
its proportionate share (determined in accordance with
paragraph 25.4.5) of any additional sum payable to the
Facility Bank pursuant to the terms of the Credit Facility as
if the Pool Funds Administrator had made a loan to such Pool
Debtor of the relevant amount and the amount so payable is to
be paid to, or otherwise made available for credit to, the
Pool Clearing Account forthwith on notification thereof by the
Pool Funds Administrator to the Pool Debtor in question;
25.4.4 for the purposes of paragraph 25.4.2, interest is to be
calculated using the effective daily rate of interest
reasonably determined by the Pool Funds Administrator on the
basis of the aggregate interest (including any compound
interest) payable under the Credit Facility in relation to any
particular day;
25.4.5 for the purposes of paragraph 25.4.3, the proportionate share
for a particular non-paying Pool Debtor is the amount (if any)
which the Pool Funds Administrator reasonably determines
(after consultation with the Facility Bank) as being the
amount of any additional sum payable in accordance with the
terms of the Credit Facility attributable to drawings under
the Credit Facility made in respect of that Pool Debtor.
25.5 Application of payments: on the Relevant Date the Pool Funds
Administrator shall, if the amount in question has not been received in
full from the non-paying Pool Debtor:-
854
25.5.1 first debit the Pool Reserve Account and credit the Pool
Clearing Account with a sum not exceeding the amount of funds
(if any) standing to the credit of the non-paying Pool Debtor
in the Pool Reserve Account;
25.5.2 if that sum is insufficient to repay in full the amount in
question, the Pool Funds Administrator shall call the Letter
of Credit (if any) provided by the non-paying Pool Debtor (for
an amount not exceeding the available amount) and pay or cause
the proceeds thereof to be paid into the Pool Clearing
Account; and
25.5.3 if the amount credited to the Pool Clearing Account after
following the foregoing procedure is insufficient, reduce
payments to all Pool Creditors in proportion to the amounts
payable to them on the Payment Date to which the default
relates,
so that, in any case, the Pool Funds Administrator has available to it
on the Pool Clearing Account sufficient funds to comply with paragraph
25.6. For the purposes of this paragraph, the "Relevant Date" is
whichever of the following is applicable:-
(a) in relation to any principal amount for which a non-paying
Pool Debtor is responsible under paragraph 25.4.1, the last
date specified for payment under paragraph 25.4.1;
(b) in relation to any principal amount as referred to in
sub-paragraph (a), the first date (if earlier than the date
referred to in sub-paragraph (a)) on which the Pool Funds
Administrator is reasonably of the opinion that the non-paying
Pool Debtor will not repay forthwith all of the amounts of
principal in question;
(c) in relation to payment of interest under paragraph 25.4.2, the
last date for payment thereof; and
(d) in relation to an additional amount under paragraph 25.4.3 the
last date for payment of this amount.
25.6 Payments to Facility Bank: to the extent of any payment by the
non-paying Pool Debtor and/or if any of the circumstances described in
sub-section 25.5 occur, the Pool Funds Administrator will forthwith
repay to the Facility Bank by credit to the Pool Borrowing Account, if
applicable, an amount equal, in the former case, to the amount so paid
and, in the latter case, to the amount which should have been paid by
the non-paying Pool Debtor.
25.7 Reduction in payments to Pool Creditors: a reduction in payments as
contemplated by paragraphs 25.5.3 will also apply in the event of any
amounts drawn down under
855
the Credit Facility being required to be repaid in accordance with the
terms of the Credit Facility and the Pool Funds Administrator shall
account for such reduction in the Pool Ledger Accounts as amounts due
and owing by the non-paying Pool Debtor to each Pool Creditor whose
payments were reduced.
25.8 Enforcement of Claims and other provisions: Sub-sections 21.7, 21.8,
21.9, 21.10 and Section 24 shall have effect in relation to amounts due
from a non-paying Pool Debtor which arise under the foregoing
sub-sections.
25.9 Unavailability of Credit Facility: if at any time the Credit Facility
ceases to be unconditionally available and paragraph 15.1.2 shall
thereupon have been effective, the whole or any part of the Security
Cover thereby required to be provided by each Supplier may be provided
by a credit to the Pool Reserve Account, unless otherwise determined by
the Executive Committee. The Executive Committee shall from time to
time assess (in consultation with the Pool Funds Administrator) and
determine the amount of Security Cover which would be required pursuant
to paragraph 15.1.2 as if that paragraph were in effect and such
assessment and determination shall apply for the purposes of paragraph
16.2.2 if paragraph 15.1.2 becomes applicable, pending any revised
assessment by the Executive Committee.
25.10 Interpretation: terms and expressions used in this Section 25 shall,
unless the context otherwise requires, have the same meanings as are
given to them for the purposes of Clause 21.
26. CREDIT FACILITY: GENERAL
26.1 Notifications to the Executive Committee: the Pool Funds Administrator
shall notify the Executive Committee forthwith:-
26.1.1 on it becoming aware of any circumstances which might lead to
an event under the Credit Facility as a result of which the
Credit Facility might cease to be available; and
26.1.2 upon receipt of a written demand from the Facility Bank
pursuant to the terms of the Credit Facility as a result of
which the Facility ceases to be available; and
26.1.3 in the event that the Facility Bank requires any additional
amount to be paid under the Credit Facility by reason of any
increased costs to the Facility Bank or any changes in
circumstances.
26.2 Notifications to Suppliers: the Pool Funds Administrator shall notify
the Suppliers as soon as reasonably practicable after receipt by it of
a notice from the Facility
856
Bank that an additional amount will or may be payable by the Pool Funds
Administrator to the Facility Bank under the terms of the Credit
Facility.
26.3 Amendment and Cancellation:
26.3.1 the Pool Funds Administrator shall not:-
(a) amend or supplement, or agree to any amendment or
supplement to, the terms of the Credit Facility
without the approval of the Executive Committee; or
(b) cancel the Credit Facility unless either the approval
of the Executive Committee has been obtained of
paragraph 26.3.2 applies.
26.3.2 The Pool Funds Administrator shall cancel the Credit Facility
in full at any time if a resolution to that effect is passed
(on a simple majority vote) by the Suppliers in separate
general meeting or if all Suppliers have requested such
cancellation.
26.4 Extension and Renewal: the Pool Funds Administrator shall negotiate
with the Facility Bank an extension or renewal of the Credit Facility
on the instructions of the Executive Committee and, in the absence or
such instructions, shall begin negotiations with the Facility Bank no
later than ten weeks before the Credit Facility is due to terminate in
accordance with its terms, with a view to the extension or renewal of
the Credit Facility on substantially the same terms for a further year
and, in any event, to keep the Executive Committee in agreeing any
extension or renewal of the Credit Facility and the Executive Committee
shall be responsible for deciding whether or not to renew or extend the
Credit Facility and, if so, on what terms and for what period.
26.5 Fees not attributable to a particular Supplier: any fees (and any
additional amounts payable under the terms of the Credit Facility to
the Pool Funds Administrator shall be recharged to the Suppliers, in
accordance with their respective Supplier Contributory Shares (to be
calculated on the basis of those current on the date on which the
relevant fee (or the relevant portion thereof) or additional amount is
payable by the Pool Funds Administrator under the Credit Facility).
26.6 No additional charge: the Pool Funds Administrator shall not make any
additional charge for arranging, participating in or administering the
Credit Facility.
857
ANNEX 1
Form of Advice Note
ADVICE NOTE
DATE: Energy Pool Funds Administration Ltd.
Room 000.0
000 Xxxx Xxxxxx
Xxxxxx XX0 0XX
TELEPHONE: (000) 000 0000
FAX NO: (000) 000 0000
NAME:
ADDRESS:
ADVICE NOTE:
PAYMENT DATE:
FAX NO.:
THIS IS NOT A TAX INVOICE
Advice Note issued in accordance with the Pooling and Settlement Agreement for
the Electricity Industry in England and Wales dated 30th March 1990 as amended,
varied or supplemented from time to time.
====================================================================================================================================
SETTLEMENT RUN/ DESCRIPTION Amount payable Amount payable
DATE TYPE exc VAT inc VAT
------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
DO NOT NET YOUR PAYABLES TO YOUR RECEIVABLES
A wholly owned subsidiary of the National Grid Company plc. Regd. in England No.
2444187 VAT No 547 8630 11
858
ANNEX 2
Form of Confirmation Notice
CONFIRMATION NOTICE
DATE: Energy Pool Funds Administration Ltd.
TELEPHONE: Room 157.2
FAX NO: 000 Xxxx Xxxxxx
XXXXX: Xxxxxx XX0 0XX
NAME:
ADDRESS:
CONFIRMATION NO:
PAYMENT DATE:
FAX NO:
Confirmation notice issued in accordance with the Pooling and Settlement
Agreement for the Electricity Industry in England and Wales dated 30th March
1990 as amended, varied or supplemented from time to time.
THIS IS A TAX INVOICE
====================================================================================================================================
PAYMENT SETTLEMENT DESCRIPTION AMOUNT PAID VAT VAT AMOUNT PAID
DATE DATE EXC VAT RATE PAID INC VAT
------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
A wholly owned subsidiary of The National Grid Company plc. Regd. in England No
2444187 VAT No 547 8630 11
859
ANNEX 3
Part 1
Form of Settlement Account Designation
To: Energy Pool Funds Administration Limited
as Pool Funds Administrator
and
Barclays Bank PLC
00 Xxxxxxx Xxxxxx Branch
as Pool Banker
Date:
Settlement Account Designation
1. [Insert name of Pool Member/Ancillary Service Provider] hereby
designates the following account as its Settlement Account to which you
are instructed to remit all amounts which are payable to us through the
Pool Clearing Account in accordance with Schedule 11 to the Pooling and
Settlement Agreement for the Electricity Industry in England and Wales
dated 30th March, 1990, as amended, varied or supplemented from time to
time (the "Agreement").
Name of Bank Branch Address Sorting Code Name of Account Account No.
2. We hereby designate the following account as our Settlement Account
from which all payments due from us in accordance with Schedule 11 to
the Agreement will be remitted.
Name of Bank Branch Address Sorting Code Name of Account Account No.
Signed by .........................
Position ..........................
For and on behalf of
[Name of Pool Member/Ancillary Services Provider]
860
ANNEX 3
Part 2
Form of Change of Settlement Account
To: Energy Pool Funds Administration Limited as
Pool Funds Administrator
and
Barclays Bank PLC
00 Xxxxxxx Xxxxxx Branch
as Pool Banker
In accordance with sub-section 4.6 of Schedule 11 to the Pooling and Settlement
Agreement [insert name] hereby gives you notice that, with effect from [insert
date] (or 10 Business Days after you receive this notice, whichever is later),
our new Settlement Account [from which payments due from the undersigned/to
which payments due to the undersigned]* will be paid shall be
Name of Bank Branch Address Sorting Code Name of Account Account No.
Yours sincerely,
[_________________]
for and on behalf of
[Name of Pool Member/Ancillary Services Provider]
_________________________________________________________
*Please complete as appropriate
861
ANNEX 4
Form of Letter of Credit
To: Energy Pool Funds Administration Limited
as Pool Funds Administrator
At the request of [Supplier] we have opened in your favour our irrevocable
Letter of Credit Number (_______) for (pound)[______________] (amount in words).
This Letter of Credit is available against your sight drafts accompanied by a
signed statement either that the applicant has failed to pay to you the amount
you are claiming under the terms of the Pooling and Settlement Agreement for the
electricity industry in England and Wales dated 30th March, 1990 (the
"Agreement") or that the claim is being made under sub-section 15.5 or Section
21 of Schedule 11 to the Agreement. Payments under this Letter of Credit shall
be effected immediately to [insert relevant account details].
Partial drawings are allowed hereunder.
Claims under this Letter of Credit shall be made at the counters of [insert
details of the Town Clearing branch of the issuing bank].
This Letter of Credit expires on [______________].
We waive any right to set off against any amount payable hereunder any claims we
may have against you.
Any demand hereunder must comply with all the above requirements [and signatures
thereon must be confirmed by yours Bankers].
This Letter of Credit is subject to Uniform customs and practice for Documentary
Credits (1983 Revision) International Chamber of Commerce.
We undertake that drafts and documents drawn under and in strict conformity with
the terms of this credit will be honoured upon presentation.
This Letter of Credit shall be governed by and construed in accordance with
English law.
For and on behalf of [______________] Bank [Plc]
862
SCHEDULE 12
Transitional Arrangements
Date for Submission
Transitional Arrangement New Principle date for Implementation of Works Programme
------------------------ ------------- ----------------------- ------------------
GOAL
(1) Use of GOAL programme (i) An auditable April 1997 April 1993
for Scheduling and calculation route for (GOAL Replacement Phase 1)
Settlement purposes scheduling
(ii) Assessment for April 1997 April 1993
development or (GOAL Replacement Phase 1)
replacement of GOAL
(2) [Not used]
(3) [Not used]
863
Date for Submission
Transitional Arrangement New Principle date for Implementation of Works Programme
------------------------ ------------- ----------------------- ------------------
(4) Ancillary Service costs (i) Review the Reactive Power Reactive Power:
charged by NGC as a arrangements for the April 1994 December 1993
lump sum per day payment to generators
for ancillary services. Other services: Other services:
Where appropriate, April 1996 December 1995
recommend and, if
agreed, implement
changes to the level of
aggregation by payment
type and by time
period, and the method
of calculating payment.
Review the requirement
for the Ancillary
Services Provider to
contract for particular
ancillary services.
(ii) Review the Reactive Power: Reactive Power
arrangements for April 1995 December 1994
charging consumers for
ancillary services and, Other services: Other services:
in particular, whether April 1996 December 1995
individual consumers
can be charged for the
impact of their demands
on reactive power
requirements.
(5) Scheduling, Despatch and Review arrangements to
Settlement cater :or:
864
Date for Submission
Transitional Arrangement New Principle date for Implementation of Works Programme
------------------------ ------------- ----------------------- ------------------
No special treatment (i) energy constrained January 1998 April 1996
plant; (GOAL Replacement Phase 2)
(ii) plant with cost January 1998 April 1996
structures that cannot (GOAL Replacement Phase 2)
adequately be expressed
as a Willans line
(6) [Not used]
(7) Dynamic Parameters Treatment of changes in April 1998 April 1996
generator dynamic
parameters during the
day
(8) Offer Prices submitted Review frequency at
daily which revised offer
prices can be used in
Scheduling, Despatch
and Settlement e.g.:
(i) submitted for each April 1997 August 1995
scheduling period
(control phase);
(ii) submitted at any April 1997 April 1995
time for opportunity
trading on despatch
timescales
865
Date for Submission
Transitional Arrangement New Principle date for Implementation of Works Programme
------------------------ ------------- ----------------------- ------------------
(9) Out-of-merit costs shared Review demand
forecasts entered by
NGC into Settlement,
based on information
supplied by customers,
against actual demand
figures. Review and, if
agreed, implement
changes in the:
(i) [Not used];
(ii) allocation of July 1995 July 1994
out-of-merit costs
associated with
deviations from
forecast; and
(iii) incentives and July 1995 July 1994
penalties associated
with demand forecast
accuracy
866
Date for Submission
Transitional Arrangement New Principle date for Implementation of Works Programme
------------------------ ------------- ----------------------- ------------------
(10) Three stage settlement Introduction of October 1995 October 1994
process (unconstrained additional stage(s), in
schedule, despatch and particular, the
out-turn) transmission
constrained schedule, to
allow further
disaggregation of
difference between
unconstrained schedule
costs and out-turn costs.
(Could be a phased
implementation)
(11) Sharing cost across all
demand for:
(A) Transmission constraints Cost of out-of-merit April 1995 October 1994
generation required
only to support stability
of a local network to be
charged to the owner of
such network
(B) Transmission losses Review and, if agreed, July 1996 October 1994
implement changes in
the arrangements for
allocating the costs of
transmission losses on
the supergrid, e.g. to
reflect:
867
Date for Submission
Transitional Arrangement New Principle date for Implementation of Works Programme
------------------------ ------------- ----------------------- ------------------
(i) electrical location
of generation and
demand; and/or
(ii) contractual
arrangements between
Generators, Suppliers
and NGC; and/or
(iii) incentives for
investment in supergrid
facilities
(12) Metering data collection by (i) [Not used]
Settlement Day (0000
hours to 2400 hours)
(ii) Review change to December 1999 December 1997
collecting metering data
by variable scheduling
day (see (13)(A)) and
implement if agreed
(13) Schedule Day parameters
(A) Schedule Day start and Review the introduction December 1999 December 1997
finish (0500 hours to 0500 of varying length
hours) Schedule Days based
upon the shape of the
demand curve or other
factors and implement
if and as agreed
868
Date for Submission
Transitional Arrangement New Principle date for Implementation of Works Programme
------------------------ ------------- ----------------------- ------------------
(B) Settlement Period duration Review the use of December 1999 December 1997
set at 0.5 hours shorter scheduling
periods and implement
if agreed
869
SCHEDULE 13
Contributory Shares
1. Contributory Share: the Contributory Share of a Pool Member shall be
calculated in accordance with the following provisions of this
Schedule.
2. Points: subject as provided in Section 3, in respect of each Quarter:-
2.1 each Pool Member which is a Generator shall receive in that
capacity one point (a "Point") for each MWh of Genset Metered
Generation of all Generating Units of such Pool Member for all
Settlement Periods falling in the Votes Calculation Period
relative to such Quarter, as determined from the final run of
Settlement (as referred to in paragraph D(3) of the Preamble
to Schedule 9) for each such Settlement Period; and
2.2 each Pool Member which is a Supplier shall receive in that
capacity such number of points (each a "Point") as is equal to
the total MWh of Consumer Metered Demand taken by that Pool
Member in all Settlement Periods falling in the Votes
Calculation Period relative to such Quarter, as determined
from the final run of Settlement (as referred to in paragraph
D(3) of the Preamble to Schedule 9) for each such Settlement
Period.
3. New Pool Members: until the third Quarter Day next falling after the
date of its admission as a Pool Member, any Party which is admitted as
a Pool Member pursuant to Clause 8.2 shall receive that number of
Points as is equal to one thousand times the number of Weighted Votes
to which such Pool Member would have been entitled under Clause
11.3.1(b) had:-
3.1 the provisions of Clause 11.3.3 been ignored; and
3.2 any applicable restrictions under Clause 11.4 been ignored;
as determined by the Executive Committee. Thereafter, such Pool
Member's Points shall be calculated in accordance with paragraph 2.
4. Calculation of Points: on or prior to each Quarter Day the Executive
Committee shall, on the basis of information to be supplied by the
Settlement System Administrator as referred to in Clause 11.3.5,
calculate for the Following Quarter the number of Points which each
Pool Member whose Points are to be calculated in accordance with
paragraph 2 shall receive, and shall notify each Pool Member and the
Director in writing of the number of Points received by all Pool
Members (whether calculated in accordance with paragraph 2 or 3). The
determination of the Executive Committee as to the number of Points of
each Pool Member shall (in the absence of manifest error) be final and
binding for all purposes of this Agreement.
5. Contributor Shares: the Contributory Share of a Pool Member shall be
calculated in accordance with the following formula:-
870
CS = X + Y
Where:-
X = A
-----
2 x B
Y = C
-----
2 x D
and where:-
CS = the Contributory Share of such Pool Member, expressed as a
percentage
A = the number of Points for the time being of such Pool Member
in its capacity as a Generator
B = the number of Points for the time being of such Pool Members
which are Generators, in their capacity as such
C = the number of Points for the time being of such Pool Member
in its capacity as a Supplier
D = the number of Points for the time being of all Pool Members
which are Suppliers, in their capacity as such.
6. Calculation of Contributory Shares: on or prior to:-
6.1 each Quarter Day;
6.2 each date upon which a New Party is admitted as a Pool Member;
and
6.3 each date upon which a Pool Member ceases to be a Party,
the Executive Committee shall calculate for the Following Quarter or
(as the case may be) the remainder of the then current Quarter the
Contributory Share for the time being of each Pool Member, and shall
notify each Pool Member and the Director in writing of the Contributory
Share of each of the Pool Members. The determination of the Executive
Committee as to the Contributory Share of each Pool Member shall (in
the absence of manifest error) be final and binding for all purposes of
this Agreement.
7. Records: the provisions of Clause 11.9 shall apply mutatis mutandis in
respect of each Pool Member's Points and Contributory Share.
871
SCHEDULE 14
Membership of the Executive Committee:
Public Electricity Suppliers and Independent Suppliers
1. Definitions: in this Schedule the following expressions have the
following meanings:-
"Appointment Date" means the first day in any Appointment Period;
"Appointment Period" means either a Preliminary Period or a period of
four years, as the case may require;
"Appointor" means a PES having for the time being a right to appoint a
PES Committee Member;
"Group" means Group A, B, C, or D, as the case may be;
"PES Member" means any Pool Member which is a Public Electricity
Supplier; and
"Preliminary Period" means the period commencing on the Effective Date
and ending on the following dates:-
(a) in the case of the Appointor is Group A, 31st March, 1991;
(b) in the case of the Appointor in Group B, 31st March, 1992;
(c) in the case of the Appointor in Group C, 31st March, 1993; and
(d) in the case of the Appointor in Group D, 31st March, 1994.
2. Appointment - Public Electricity Suppliers:
2.1 subject to Sections 2 to 5 and Section 8, the PES Members shall
together have the right to appoint not more than four members of the
Executive Committee (the "PES Committee Members").
2.2 The PES Members shall for the purposes of Sections 2 to 5 and Section 8
be arranged into Groups as follows:-
Group A: 1 SEEBOARD plc
2 Southern Electric plc
3 London Electricity plc
Group B: 1 Midlands Electricity plc
2 South Wales plc
3 Eastern Electricity plc
Group C: 1 Yorkshire Electricity Group plc
872
2 Northern Electric plc
3 NORWEB plc
Group D: 1 South Western Electricity plc
2 East Midlands Electricity plc
3 Manweb plc
2.3 In respect of the Preliminary Period appropriate to each Group, the
first-named PES Member shall be entitled to appoint a PES Committee
Member and in respect of each subsequent Appointment Period the
entitlement to appoint shall pass to the second-named PES Member and so
on through each Group, in constant rotation.
2.4 No later than seven days before the end of an Appoint