DATED 30TH MARCH, 1990-
THE GENERATORS
named herein
and
THE SUPPLIERS
named herein
and
ENERGY SETTLEMENTS AND INFORMATION SERVICES LIMITED
as Settlement System Administrator
and
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 at 17th October, 1996)
Main Text Schedules 1-8 and 10-22
Contents
PART I: PRELIMINARY
1 Definitions and Interpretation
2 The Effective Date
3 Additional Parties
PART II: OBJECTS, REVIEW AND PRIORITY
4 Objects and Purpose of the Agreement
5 Transitional Arrangements and Reviews
6 Entrenched Provisions, Inconsistencies and Conflicts
PART III: POOL MEMBERSHIP AND GENERAL MEETINGS
7 Introduction
8 Pool Membership
9 General Meetings
10 Proceedings at General Meetings
11 Voting
12 Proxies
13 Matters reserved to the General Meeting: Class Rights
PART IV: THE EXECUTIVE COMMITTEE
14 Establishment of the Executive Committee
15 Membership of the Executive Committee
16 Pool Chairman
17 Chief Executive, Secretariat and Secretary
18 Proceedings of the Executive Committee
19 Conduct of Executive Committee Meetings
20 Delegation
21 Vacation of Office by Committee Members
22 Voting
23 Committee Members' Responsibilities and Protections
24 Powers of the Executive Committee
PART V: LIMITATION OF LIABILITY
25 Limitation of Liability
PART VI: THE SETTLEMENT SYSTEM ADMINISTRATOR
26 Appointment
27 Not Used
28 Not Used
PART VII: THE SETTLEMENT SYSTEM ADMINISTRATOR'S RESPONSIBILITIES
29 Responsibilities
30 Not Used
31 Not Used
32 Not Used
33 Not Used
34 Costs, Fees and Expenses
34A Second Tier System Charges
PART VIII: THE SETTLEMENT SYSTEM AND COMPUTER OPERATIONS
35 Development of the Settlement System
36 Change Management
37 Software
38 Not Used
39 Not Used
40 Not Used
41 Notification of Defects by Pool Members
42 Not Used
43 Not Used
44 Not Used
45 Escrow Arrangements
46 Not Used
PART IX: THE POOL AUDITOR AND SCHEDULING AND DESPATCH REVIEWS
47 The Pool Auditor and Scheduling and Despatch Reviews
48 Audit Instructions
PART X: THE GRID OPERATOR'S RESPONSIBILITIES
49 Responsibilities
50 Standard of Care
PART XI: ANCILLARY SERVICES AND THE ANCILLARY SERVICES PROVIDER
51 Ancillary Services
51A Transmission Services
51B Transmission Services Scheme 2
PART XII: SETTLEMENT RE-RUNS
52 Settlement Re-runs
PARTY XIII: RISK MANAGEMENT SCHEME
53 Application
54 Scheme Admission Conditions
55 Rights and Obligations of Pool Members
56 Review
PART XIV: FUEL SECURITY
57 Definitions
58 Payment Instructions
59 Record Keeping and Payments
PART XV: METERING
60 Metering
PARTY XVI: POOL CIVIL EMERGENCIES
61 Pool Civil Emergencies
PART XVII: TRADING SITE
62 Trading Site
PART XVIII: THE POOL FUNDS ADMINISTRATOR, BILLING AND SETTLEMENT
63 The Pool Funds Administrator
64 Procedures Manual
65 Billing and Settlement
PART XIX: DEFAULT, TERM AND TERMINATION
66 Default
67 Term and Termination
PARTY XX: CONFIDENTIALITY
68 Definitions and interpretation
69 Confidentiality for NGC and its Subsidiaries
70 Confidentiality other than for NGC and its Subsidiaries
71 Release of Information
PART XXI: THE PARTICIPATION OF NGC
72 The Participation of NGC
73 Not Used
PART XXII: MISCELLANEOUS
74 Force Majeure
75 Notices
76 Assignment
77 Counterparts
78 Waivers; Remedies Not cumulative
79 Severance of Terms
80 Entire Agreement
81 Language
82 Restrictive Trade Practices Act 1976
83 Arbitration
84 Jurisdiction
85 Governing Law
SCHEDULES
1 The Founder Generators
2 The Founder Suppliers
Part A: Public Electricity Suppliers
Part B: Second Tier Suppliers
Part C: Others
3 Form of Accession Agreement
4 Terms of Engagement of the Settlement System
5 Form of Admission Application
6 Form of Pool Membership Application
7 Form of Escrow Agreement
8 Not Used
9 The Pool Rules [See separate document]
Preamble
Part I: Definitions and Interpretation
Part II: Data Input to Settlement
Part III: Computation of Payments in Settlement
Part IV: Interconnectors
Part V: Special Provisions
Part VI: Settlement Funds
Appendix 1: Part I: Definitions
Part II: List of Acronyms
Appendix 2: Procedures for running GOAL
Appendix 3: Transmission Services Scheme
Appendix 4: Reporting Requirements
Appendix 5: Variables established by reference to PORTHOLE
Appendix 6: Procedures for the Aggregation of Metered Data
Appendix 7: Short-Term Modifications
Appendix 8: Uplift Management Incentive Scheme 2
10 Form of Resignation Notice
11 Billing and Settlement
Part 1: Preliminary
Part 2: Establishment of Systems
Part 3: Security Cover and Credit Monitoring
Part 4: Billing and Payment Procedures
Annex 1: Form of Advice Note
Annex 2: Form of Confirmation Notice
Annex 3: Part 1: Form of Settlement Account esignation
Part 2: Form of Change of Settlement Account
Annex 4: Form of Letter of Credit
12 Transitional Arrangements
13 Contributory Shares
14 Membership of the Executive Committee: Public Electricity
Suppliers and Independent Suppliers
15 The Pool Funds Administrator's Contract
Annex 1: PFA Budget for the 1992 PFA Accounting Period
Annex 2: Pro-Forma Statement of Charges
Annex 3: Pro-Forma Statement of Costs and Fees
Annex 4: Existing Funds Transfer Software
Part A: Beneficially Owned
Part B: Licensed
Annex 5: Escrow Arrangements
16 Matters requiring consent of the Settlement System Administrator
17 Trading Sites
Part A: General
Part B: Procedures
Part C: Trading Site Applications
Part D: Additional Provisions
18 The Ancillary Services Accounting Procedure
Annex: Part 1: ASP Budget for the First Accounting Period
Part 2: Pro-forma Statement of Costs
Part 3: Pro-forma Statement of Charges
19 Objective and Scope of the Scheduling and Despatch Review
20 Accountable Interest
21 Meter Operator Schedule
22 1998 Programme Funding and Cost Recovery
THIS AGREEMENT is made on 30th March, 1990
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) ENERGY SETTLEMENTS AND INFORMATION SERVICES LIMITED
(registered number 2444282) whose registered office is situate at
Fairham House, Green Lane, Clifton, Nottingham NG11 9LN as
Settlement System Administrator;
(4) ENERGY POOL FUNDS ADMINISTRATION LIMITED (registered number
2444187) whose registered office is situate at 185 Park Street,
London SE1 9DY as Pool Funds Administrator;
(5) THE NATIONAL GRID COMPANY plc (registered number 2366977
whose registered office is situate at National Grid House, Kirby
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 1 Atlantic Quay, Glasgow G2 8SP,
Scotland as an Externally Interconnected Party;
(7) ELECTRICITE DE FRANCE, SERVICE NATIONAL whose principal
office is situate at 3 Rue de Messine, 75008 Paris, France as an
Externally Interconnected Party; and
(8) THE OTHER PARTIES whose names, registered numbers and
registered or principals offices are set out in Schedule 2.
WHEREAS:
(A) it is a Condition of the NGC Transmission Licence 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
Authorised Electricity Operators in respect of sales and
purchases of electricity under the terms of this Agreement and
such Licence further provides that NGC may comply with its said
obligations by participation in this Agreement in the manner
provided in such Licence;
(B) it is a Condition of the Generation Licence granted to each
of the Founder Generators in England and Wales requiring such a
Licence 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 Licence 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 Licence 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 Licences 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;
(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 Licences; and
(G) without prejudice to the ability of Parties to agree in the
future to the terms of an incentive scheme, the Parties
acknowledge that the Transmission Services Scheme 2 is part of
the long term objective of the Parties that the Grid Operator is
provided with an incentive to reduce the cost of certain charges
made to Suppliers which arise as a result of the purchase of
electricity under the terms of this Agreement. The Transmission
Services Scheme 2 is a replacement of the Transmission Services
Schemes, which previously applied.
NOW IT IS HEREBY AGREED as set out on the following pages of this
Agreement.
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 to that term 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;
"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 of 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 watts and
standard multiples thereof, that is:
1000 Watts = 1kW
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),
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;
"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" means the person who for the
time being and from time to time is required by the terms of a
Transmission Licence 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 to that term
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;
"Authorised Electricity Operator" means any person who is
authorised under the Act to generate, transmit or supply
electricity and shall include an person transferring electricity
to or from England and Wales across an interconnector (as such
term is used in the NGC Transmission Licence), other than the
Grid Operator in its capacity as operator of the NGC Transmission
System;
"Banking System" has the meaning given to that term in
Section 1.1 of Schedule 11;
"Billing System" has the meaning given to that term in
Section 1.1 of Schedule 11
"BPS Goal" has the meaning given to that term in Appendix 2
to 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 regulating the relationship
between their respective grid systems;
"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 would have been
located and, in the event any dispute as to location, as
determined in accordance with Clause 83;
"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 Licence 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;
"Charging Procedure" means the charging procedure set out in
the Appendix to Schedule 4, as amended, varied or substituted
from time to time in accordance with the terms hereof;
"Chief Executive" has the meaning given to that term in
Clause 17.1.1;
"Chief Executive's Office" means the Chief Executive, the
Contract Manager and the personnel referred to in Clause 17.2.1;
"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; and
(iii) in the case of any change to any Code of Practice prior
to 1st April, 1998 in respect of standards of accuracy of
Metering Equipment required for Second Tier Customers up to ( and
including) 100kW or Non-Pooled Generators, the Suppliers in
separate general meeting;
(provided that, prior to the date on which the transitional
arrangements regarding metering of Reactive Power at Grid Supply
Points are brought into effect ("RP Date") in the case of a Code
of Practice or part thereof which relates to Reactive Power
metering at the Grid Energy 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, utilised 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 (i) 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; or (ii) in relation to any Metering System
or Metering Equipment, commissioned in accordance with the
relevant Code of Practice;
"Committee Member" means a member of the Executive
Committee;
"Communications Equipment" means, at or relating to any
Site, in respect of any Metering Equipment (i) 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; and (ii) in the case of Sites
which are not 1993/1994 Tariff Qualifying Sites (as defined in
the Tariff which is entitled Tariff for 1993/1994 Sites) the
exchange link which is dedicated to that terminating equipment,
but (iii) 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;
"Connection Point" means a Grid Supply Point or Grid Energy
Point, as the case may be;
"Consumer Metered Demand" has the meaning given to that term
in Part I of Appendix 1 of Schedule 9;
"Contract Management Rules" has the meaning given to that
term in sub-section 1.1 of Schedule 4;
"Contract Manager" has the meaning given to that term in
sub-section 1.1 of Schedule 4;
"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 to that term 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-energisation" 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 relation 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 to that term
in Section 1.1 of Schedule 11;
"Defaulting Pool Member" has the meaning given to that term
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 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 this
Agreement;
"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 deliver 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 Transmissions 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 the relevant
External Interconnection;
"Effective Date" means 2400 hours on 30th March, 1990;
"electricity" means Active Energy and Reactive Energy;
"Electricity Arbitration Association" means the
unincorporated member's 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 of NGC (but with no other connection to the NGC
Transmission System);
"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 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 to that term in
Clause 45.1;
"ESIS" means Energy Settlement and Information Systems
Limited (registered number 2444282) whose registered office is at
Fairham House, Green Lane, Clifton, Nottingham NG11 9LN;
"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;
"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;
"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 data 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 required by Service Line 6
(Off-Site Security) 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;
"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 to that
term in Section 1.1 of Schedule 11;
"Funds Transfer Business" has the meaning given to that term
in Section 1.1 of Schedule 11;
"Funds Transfer Hardware" has the meaning given to that term
in Section 1.1 of Schedule 15;
"Funds Transfer Software" has the meaning given to that term
in Section 1.1 of Schedule 15;
"Funds Transfer System" has the meaning given to that term
in Section 1.1 of Schedule 11;
"the Generating Board" has the meaning given to that term 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 Licence" means a licence 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;
"Generator" means:
(i) a person who generates electricity under licence 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,
and 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 to that
term in Part I of Appendix 1 to Schedule 9;
"Gigawatt" means 1000MW;
"GOALPOST" has the meaning given to that term 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 Licence, as from time to time revised in accordance
with the Transmission Licence;
"Grid Code Review Panel" has the meaning given to that term
in the Grid Code;
"Grid Entry Point" means the point at which a Power Station
which is not Embedded connects to the NGC Transmission System;
"Grid Operator" means person who for the time being and from
time to time is required by the terms of a Licence, 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 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 Second Tier Hardware) and for
the avoidance of doubt the Hardware at 1st April, 1996 is
specified in version 1.0 of the Contract Management Rules;
"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 relation 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 paragraph (i) of the
definition of Independent Suppliers, or (c) any Public
Electricity Supplier;
"Independent Suppliers" means Suppliers other than:
(i) Eastern Group 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, 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 to that term in
Section 1.1 of Schedule 11;
"Initial Settlement Agreement" means the agreement of even
date herewith made between the Parties 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;
"kWh" means kilowatt-hour;
"Licences" means all Generation Licences, PES Licences,
Second Tier Supply Licences and Transmission Licences and
"Licence" means any or (as the context may require) a particular
one of them;
"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;
"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 per cent 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
Licence;
"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 a
resignation notice 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;
"Metering System" means all or that part of the Commissioned
Metering Equipment 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;
"NGC" means the National Grid Company plc (registered number
2366977) whose registered office is situate at National Grid
House, Kirby Corner Road, Coventry CV4 8JY;
"NGC Site" means a site owned (or occupied pursuant to a
lease, licence 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 Licence" means the Transmission Licence
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;
"Non-Pooled Generation" means generation from any site which
is directly connected to the Distribution System of a Public
Electricity Supplier where (i) the output is accounted for in
Settlement and (ii) the Generator owning such site:
"Non-Pooled Generation System" means any Metering System of
a Non-Pooled Generator which has been registered with the
Settlement System Administrator by a Second Tier Supplier and
from which the Settlement System Administrator or any Second Tier
Agent is required to collect, aggregate, adjust or transmit data
for the purposes of taking a supply of electricity;
"Non-Pooled Generator" means a Generator who produces Non-
Pooled Generation, provided that a Generator shall be a Non-
Pooled Generator only to the extent that it owns sites which
produce Non-Pooled Generation;
(a) is exempted from holding a Generation Licence; or
(b) would be exempted from holding a Generation licence if such
site were the only site owned by that Generator;
"Notified Payment" has the meaning given to that term 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 or from
a Non-Pooled Generator, the Meter Operator Party who is appointed
as such by the Second Tier Customer, the Non-Pooled Generator or
by the Registrant (with the consent of that Second Tier Customer
or, as the case may be, Non-Pooled Guarantor) 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 by 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 to that term
in Part I of Appendix 1 to Schedule 9;
"PES Licence" means a licence 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;
"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 to that term in Section
1.1 of Schedule 11;
"Pool Chairman" has the meaning given to that term in Clause
16.1;
"Pool Creditor" has the meaning given to that term 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, 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
operations information form 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;
"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
on Power Station;
"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 Schedules 14 and
22, means a person for the time being party to this Agreement who
is a public electricity supplier in England and Wales;
"Qualifying Site" means an Embedded Non-Franchise Site
qualifying in accordance with the terms of the relevant Tariff
for payments to be made for the provision of installation and
maintenance services;
"Quarter" means the period of three calendar months ending
on 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 to that term 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
(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 a Non-Pooled Generator to a
Distribution System,
the party which is the Supplier or Second Tier Supplier, as
the case may be, in respect of such Metering System of such Non-
Pooled Generator; or
(vi) the point of connection of two or more Distribution Systems;
the Authorised Electricity Operator of one of such
Distribution Systems which is nominated in accordance with the
provisions of this Agreement; or
(vii) 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;
"RP Date" has the meaning given to that term in the
definition of Code of Practice;
"Schedule Day" has the meaning given to that term 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 SDC1;
"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
to that term in Clause 55;
"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;
"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 or Non-Pooled Generator;
(ii) the System of an Authorised 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;
"Second Tier Supplier" means a person for the time being
party to this Agreement who is the holder of a Second Tier Supply
Licence;
"Second Tier Suppliers' Non-Pooled Generation System Charge"
means the amount determined by the Executive Committee for the
purposes of Clause 34A.3;
"Second Tier Suppliers' System Charge" means the amount
determined by the Executive Committee for the purposes of Clause
34A.1;
"Second Tier Supply Licence" means a licence granted or to
be granted under section 6(2)(a) of the Act;
"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 data for the
purposes of a supply pursuant to a Second Tier Supply Licence;
"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 to that term in
the Act;
"Security Cover" has the meaning given to that term in
Section 1.1 of Schedule 11;
"Security Period" has the meaning given to that term in the
Fuel Security Code;
"Service Line" has the meaning given to that term in Section
1.1 of Schedule 4;
"Settlement" means the operation of the Settlement System
under this Agreement;
"Settlement Account" has the meaning given to that term in
Section 1.1 of Schedule 11;
"Settlement Day" has the meaning given to that term in Part
I of Appendix 1 to Schedule 9;
"Settlement GOAL" has the meaning given to that term 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 to that term 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;
"Settlement System Administrator" means ESIS in its capacity
as Settlement System Administrator or any replacement therefor as
Settlement System Administrator from time to time appointed
pursuant to this Agreement;
"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,
or the point of connection of a Non-Pooled Generator to a
Distribution 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 all 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;
"SSA Arrangements" means this Agreement, the Service Lines,
the Agreed Procedures and the Codes of Practice;
"SSA System" means all operating systems, compilers and
other software necessary to or used for the operation or testing
of the Hardware and the Settlement System (excluding, for the
avoidance of doubt, Developed Application Software and Licensed
Application Software, each as defined in sub-section 10.1 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
(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
Licence and Condition 3 of a Second Tier Supply Licence;
"Supplier's System Charge" means the amount determined by
the Executive Committee in accordance with the provisions of
Clause 34A.3;
"Supplier's Use of System Agreement" means the agreement for
use of system envisaged in Condition 8B of a PES Licence and
Condition 3 of a Second Tier Supply Licence;
"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" for any period of one year in respect of any Site
(which whenever used in this definition shall include all
Qualifying Sites) means the tariff approved by the Director and
published by the Executive Committee on or before that tariff
becomes effective and providing for amounts payable to Tariff
Operators of certain Sites in a class of which that Site is a
member in respect of the provision of installation and
maintenance services in respect of Communications Equipment; and
the "relevant Tariff" in respect of any Site (or Metering
Equipment or Metering System in respect of a Site) shall be the
Tariff which is so expressed by its terms to apply to that class
of Sites to which such Site so belongs;
"Tariff Operator" means a Meter Operator Party which is an
Operator or which is appointed as the operator pursuant to an
agreement or an arrangement in respect of Metering Equipment at a
Qualifying Site;
"Third Quarter" means, in respect of any year, the months of
July, August and September;
"Total Second Tier System Charges" means, in respect of any
Specified Accounting Period (as defined in Clause 34A.1), 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 and
Non-Pooled Generation Systems or when the collection,
aggregation, adjustment and the transmission of data from Second
Tier Systems and Non-Pooled Generation Systems is performed by
the Settlement System Administration the costs, expenses and
charges directly incurred by the Settlement System Administrator
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 Clause 34A.5;
"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;
"Transmission Licence" means a licence granted or to be
granted under section 6(1)(b) of the Act, the authorised 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 to that term 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 utilised 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, licence 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 Generating 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 and or other
person in connection with the distribution of electricity, but
does not include any part of the NGC Transmission System; and
(ii) in relation to an External Pool Member or an Externally
Interconnected Party, the External System Connected to the
relevant External Interconnection;
"VAr" means voltamperes reactive;
"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;
"Working day" has the meaning given to that term in the Act;
and
"Works Programmed Manager" has the meaning given to that
term in Clause 5.13.
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 or 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 re-enactment 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 instruments
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;
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 charges 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 to that
term 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,
organisation 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 to that term
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;
(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 Hierarchy: If the provisions of an Agreed Procedure, a Code
of Practice, a Service Line or the Development Policies are
inconsistent with the Provisions of this Agreement, the
provisions of this Agreement shall prevail to the extent of such
inconsistency. If the provisions of a Service Line are
inconsistent with the provisions of an Agreed Procedure or a Code
of Practice, the provisions of the Service Line shall prevail to
the extent of such inconsistency.
1.5.(a) The Parties undertake to review the Agreed Procedures,
the Codes of Practice and the Service Lines by no later than the
date (the "Review End Date") falling 30 days after the date on
which this Clause 1.5 takes effect in accordance with a workplan
in form and content agreed by the Executive Committee and the
Settlement System Administrator as at the date on which this
Clause 1.5 takes effect, such workplan to include the principle
that ESIS will provide discussion drafts of the Service Lines to
the Executive Committee and that these redrafts will then be the
subject of the joint review by ESIS and the Executive Committee.
(b) In reviewing the Agreed Procedures, the Codes of Practice
and the Service Lines:
(i) the product of each Service Line shall remain unaltered and
if any Agreed Procedure or Code of Practice shall have a product
which is part of the current working practice of ESIS but which
is not currently in a Service Line, that product shall be
incorporated into the relevant Service Line;
(ii) subject to (i) above, each of the Agreed Procedures, the
Codes of Practice and the Service Lines shall be brought into
line with Parties' working practices current at the date on which
this Clause 1.5 takes effect and made consistent inter se.
(c) Each of the Parties undertakes to comply at all times with
its obligations under or pursuant to the Service Lines
notwithstanding that the same are being reviewed as provided in
this Clause 1.5.
(d) (i) Each of the Parties undertakes to comply at all times
with the Agreed Procedures and the Codes of Practice insofar as
applicable to such Party provided that:
(A) subject to (B) below, pending completion of the review of
the Agreed Procedures and Codes of Practice pursuant to this
Clause 1.5, if Parties' working practices current at the date on
which this Clause 1.5 takes effect are inconsistent with the
terms of any Agreed Procedure or Code of Practice, such working
practices shall prevail (but without prejudice and subject to the
requirements of Clause 1.5(b)(i)); and
(B) if the review of a Service Line, Agreed Procedure Code of
Practice pursuant to this Clause 1.5 is not completed by the
Review End Date then, until it is completed, the Parties shall
continue to comply with the Parties' working practices then
current.
(ii) The Executive Committee shall provide copies of the Agreed
Procedures and Codes of Practice to a Party upon request.
(e) Nothing in this Clause 1.5 shall affect Clause 1.4 or any
other review of Agreed Procedures, Codes of Practice or Service
Lines required or permitted elsewhere pursuant to this Agreement.
1.6 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 1.6 capitalised terms not defined in
Clause 1.1 shall have the respective meanings given to them in
the Pool Rules.
1.7 1998: The provisions of Schedule 22, shall have effect.
1.8 1998 Framework Agreement: The Parties and the Meter
Operator Parties agree that, to accommodate the removal of the
franchise limit generally contained in Condition 2 of the Second
Tier Supply Licences schedule for 31st March, 1998 (the "1998
Programme"), changes may be needed to this Agreement. The
Parties and Meter Operator Parties therefore authorise the Chief
Executive to maintain a document (the "1998 Framework Agreement")
which shall contain points of principle and text relating to the
implementation of the 1998 Programme which have been approved in
principle by either the Executive Committee or Pool Members in
general meeting. It is the intention of Pool Members that the
1998 Framework Agreement will be revised as further principles
and/or text are agreed by the Executive Committee or Pool Members
in general meeting so that, in good time before 31st March, 1998,
the 1998 Framework Agreement will contain all text necessary to
be included in this Agreement in order to implement the 1998
Programme. Notwithstanding the Agreement of Pool Members or the
Executive Committee to the inclusion of such principles and/or
text in the 1998 Framework Agreement, it is agreed by the
Parties and Meter Operator Parties that no part of the 1998
Framework Agreement shall have effect or shall alter, amend or
replace any part of this Agreement until included in this
Agreement by way of a supplemental agreement hereto and the
process in this Clause 1.8 shall not bind or commit any Party or
Meter Operator Party or otherwise affect in any way the rights
and discretions of any Party or Meter Operator Party to withhold
or qualify its agreement to any supplemental agreement to this
Agreement.
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:
(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 to so 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 of the New Party, copied 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 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 authorised 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 authorises and instructs the Chief Executive
and each person authorised for the purpose by the Executive
Committee to sign on its behalf Accession Agreements and
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 delivery 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
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 Found Generator, any Founder Supplier, any
Externally Interconnected Party and any Party admitted as a
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 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 to any such admission.
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 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.
3.12 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.
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].
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 endeavours
(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 the
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 5.5 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 [Not used].
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.
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; and
5.7.7 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, but 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 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) 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;
(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 cost 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 Works Programme
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 Works Programme Manager or where 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 Works Programme (with or without
amendment).
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), 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 "Works Programme Manager") upon and
subject to such terms and conditions as are agreed by the
Executive Committee with the Works Programme 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. Costs incurred by the Settlement System
Administrator shall be recovered in accordance with the Charging
Procedure. The Executive Committee shall require the Works
Programme 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
Works 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 endeavours 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 cost and expense
except that the Settlement System Administrator, the Pool Funds
Administrator and the Ancillary services Provider shall 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 have;
(c) includes conclusions to the effect that those effects could
be remedied or prevented by modifications of the conditions of
any Licence 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 Licences
consequent upon the report (but as if, for this purpose, only
those Parties who are holders of Licences 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 of 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. Any
costs incurred by the Settlement System Administrator in giving
effect to such modifications shall be recovered in accordance
with the Charging Procedure.
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, 53.6, 67.3, 67.4, 83, 84 and 85 and Section 8 of Schedule
14 and Section 7 of Schedule 20;
(b) sub-section 19.1 of Schedule 14; and
(c) 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 this Clause 6.2
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
Administrator 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",
"Charging Procedure", "Code of Practice", "Force Majeure", "Good
Industry Practice", "Hardware", "SSA Arrangements" and SSA
System"'
(b) Clauses 6.9, 7.3, 7.6, 9.5, 10.9, 10.10, 19.4, 34.1, 34.2,
35.3, 35.6, 36.2, 37, 66, 68, 69, 74 and 78.2;
(c) Schedule 4;
(d) Sections 1.6 (and its application to any other Section of
Schedule 9), 1.7 and 3 of Schedule 9; and
(e).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 delayed):
(a) Clauses 18.1.2, 18.1.4, 19.5, 41, 45, 47.1, 47.3, 48.1,
48.2, 48.9, 60, 70, 71.1, 71.4 and 71.5;
(b) Part XXII (other than Clauses 74 and 78.2);
(c) Section 30 of, and Appendix 4 to, Schedule 9;
(d) Section 2(b) of Part C to Schedule 17; and
(e) paragraphs 4 to 16 (inclusive), 18, 19, 21 and 22 of
Schedule 21.
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 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 of the Grid Operator
(such consent not to be unreasonably 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.
6.7 Amendments generally:
6.7.1 The following provisions of this Clause 6.7 are without
prejudice to the rights, powers and privileges of the Secretary
of State and the Director under the Act or any Licence or
otherwise howsoever.
6.7.2 In relation to Schedule 4 (including its Appendix), and
save as provided in Clause 6.7.3, where that Schedule provides
for an amendment to the SSA Arrangements, the Menus of Prices or
the Variation Menus (or any or any part thereof) to be agreed
between certain designated persons and those persons agree in
writing the amendment to be made, then the SSA Arrangements, the
Menu of Prices or, as the case may be, the Variation Menus (or
the relevant one or part thereof) shall be so amended without the
need for any other Party to execute or deliver any amending or
confirmatory document and each Party hereby consents to such
amendments being made in such a manner and undertakes not to
withdraw that consent.
6.7.3 In the following cases the amendment procedure set out
in Clause 6.7.2 shall itself be modified as hereinafter provided:
(a) if Schedule 4 refers to "formal documentation" being agreed
to give effect to the amendment, an amending agreement executed
by all Parties shall be required;
(b) if the consent of a particular person is required to be
obtained under Clauses 6.1 to 6.6 (inclusive), the amendment
shall not take effect until that consent has been obtained.
6.7.4 Subject to:
(a) any consent of a particular person required to be obtained
under Clauses 6.1 to 6.6 (inclusive) being obtained;
(b) the requirements of Clauses 6.7.5 and 13.2,
and save as provided otherwise in this Agreement, any amendment
to or variation of this Agreement shall be effective if approved
by 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.
6.7.5 Where any change is proposed to be made 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 of them (in each case not to be unreasonably
withheld or delayed) provided that the reference to the Grid
Operator in this Clause 6.7.5 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 6.7.5.
Inconsistencies and Conflicts
6.8 Internal inconsistencies and conflicts: In the event of any
inconsistency or conflict:
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 Specifications shall prevail over the Software,
and the Parties shall use all reasonable endeavours 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 of this Agreement and the Grid
Code but recognises 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 different 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 of the
Grid Code and this Agreement.
6.9.3 Each of the Parties shall use its reasonable endeavours
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:
(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 Licence, the provisions of this
Agreement should be made to conform (to the extent of such
inconsistency or conflict) to those of this Agreement.
(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
reasonably practicable as to the implications of the change and
the actions necessary to implement it (including any relevant
feasibility study).
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 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 matter 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
shall 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 1st April, 1996 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.
7.4.2 The Pool Rules shall be developed under the control of
the Executive Committee. Subject to Clause 6, the Executive
Committee may at any time and from time to time change all or any
of the Pool Rules upon notification to all Parties and Meter
Operator parties, and any such change shall be binding on all
Parties and Meter Operator Parties without further action being
required on the part of any person.
7.5 Pool Member's 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 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 of 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 of 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 endeavours 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 Clause 8.13 and to the fulfilment 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 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 the
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 fulfil 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:
(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
(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
the 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
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; or
(b) in circumstances where the Supplier which has purchased that
electricity pursuant to this Agreement; or
(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.
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 the 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;
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 it 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 form 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
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 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 and any Pool Member who acquires an additional
capacity in which it participates as a Pool Member shall be
deemed to have been admitted as a new Pool Member pursuant to
Clause 8.2 in that additional capacity.
8.13 Saving: The Executive Committee shall have the right to
waive compliance by a Party with all or any of the Pool
Membership Conditions either absolutely or on terms if, in the
opinion of the Executive Committee, this is necessary to ensure
or help ensure that the Settlement process operates efficiently
or that the interests of other Pool Members are safeguarded.
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 meeting 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
Charging Procedure, the PFA Accounting Procedure 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 Charging Procedure, the PFA Accounting Procedure, 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:
(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 Charging
Procedure, the PFA Accounting Procedure, 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 [Not used]
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 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 and 9.1.2 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 percent 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 Members 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 (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 the 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 24.2.14 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 has 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 11.21.;
and
10.2.2 50 percent of 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 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 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 poll: 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.
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 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 its Allocated Generating Units 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,
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 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,
each such vote a "Weighted Vote".
For the purposes of this Clause 11.2:
(A) a Generating Unit shall be an Allocated Generating Unit of a
Pool Member (in this Clause, the "Identified Pool Member") if it
belongs to the Identified Pool Member as of the date on which the
Executive Committee calculates the Weighted Votes of Pool Members
for the relevant Quarter pursuant to Clause 11.3.2. If at any
time during such Quarter an Allocated Generating Unit shall
belong to another Pool Member (in this Clause, the "Transferee
Pool Member"), the Weighted Votes attributed to the Identified
Pool Member for such Quarter by reason of the Allocated
Generating Unit belong to it shall be transferred to the
Transferee Pool Member as of the date on which such Allocated
Generating Unit first belongs to the Transferee Pool Member (and
the Identified Pool Member and the Transferee Pool Member shall
jointly notify the Executive Committee in writing of such date in
good time before its occurrence);
(B) a Generating Unit shall belong to a Pool Member if it is
owned by that Pool Member and not leased to another person or if
it is leased by that Pool Member from another person;
(C) a Pool Member shall notify the Executive Committee promptly
on request of its Allocated Generating Units and the Executive
Committee and each other Party may rely on the information in
that notification and in any notification under paragraph (A)
above without further enquiry or need to verify that information;
(D) in determining the meaning of "good time" for the purposes
of paragraph (A) above one factor to be taken into account is
that the Settlement System Administrator must be allowed
sufficient time to effect the necessary changes in Settlement
associated with the transfer of the relevant Allocated Generating
Unit; and
(E) the Executive Committee may, upon application of any Pool
Member involved in any transfer of assets between Pool Members
during any Quarter, adjust as between the Pool Members involved
in such transfer, the number of Points and/or Weighted Votes to
which they in their capacities as Suppliers are entitled in
respect of the remaining part of that Quarter and/or one or both
of the two immediately succeeding Quarters if, in the opinion of
the Executive Committee, such adjustment would help accommodate
the consequences of such a transfer and not prejudice the
interests of any other Pool Member in any material respect.
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 in the case
of a Generator include:
(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 the Executive
Committee's opinion most nearly correspond to such Generating
Units;
(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; and
(v) where a Generating Unit of an existing Pool Member is
transferred to, and then belongs to, such Generator at or soon
after the time of such Generator's admission as a Pool Member,
the Weighted Votes most recently attributed to the existing Pool
Member by reason of that Generating Unit shall be attributed to
such Generator as if such Generator were a Transferee Pool Member
under the provisions of paragraphs (A) and (B) of Clause 11.2;
(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 in accordance
with Service Line 10 (Service to CEO and Pool Members), 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
11.3, 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 (.05 being rounded upwards) to the
nearest whole number; and
11.3.5 Additional capacity: For the purposes of Clause 11 any
Pool Member who acquires an additional capacity in which it
participates as a Pool Member shall be deemed to have been
admitted as a new Pool Member pursuant to Clause 8.2 in that
additional capacity and until the third Quarter Day next falling
after the date such Pool Member's application to the Executive
Committee pursuant to Clause 8.12 is approved, it shall have that
number of Weighted Votes in that additional capacity as fall to
be determined in accordance with the provisions of Clause 11.3.1.
Thereafter, such Pool Member's Weighted Votes shall be calculated
in accordance with Clause 11.2.
11.4 Restrictions on Weighted Votes:
11.4.1 Generators: At no time shall the aggregate number of
Weighted Votes to which both Central Power Limited and
Peterborough Power Limited (together with their respective
affiliates and related undertakings) are entitled in their
capacity as Generators 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 aggregate number of Weighted
Votes to which both such companies are entitled in that capacity
shall be limited accordingly and the number of Weighted Votes of
each such company in its capacity as a Generator shall be limited
accordingly and the number of Weighted Votes of each such company
in its capacity as a Generator shall, if necessary, be pro rata
reduced;
11.4.2 Suppliers: At no time shall the aggregate number of
Weight 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
are 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
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 percent 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 Supplier and all such affiliates and related
undertakings are entitled in that capacity shall be limited
accordingly and the number of Weighted Votes of such 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 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 shall be entitled
A = the greater of C and E and, Where C is equal to E, C
B = the number of Weighted Votes for the time being of such Pool
Member in its capacity as a Generator
C = 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)
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 such 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 of 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 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 hand 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 a 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 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 instrument
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:
"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 or 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 by representatives at meetings: Any
company, corporation, partnership, firm, joint venture, trust,
association or other organisation which is a Pool Member may by
resolution of its directors to other governing body authorise
such person as it thinks fit to act as it 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.
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 the
same, such approval to be (subject as provided in Sections 15, 16
and 17 of Schedule 4) by resolution of Pool Members passed by not
less than 65 per cent of the Membership Votes or (as the case may
be) Total 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 Administrator;
(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 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:
(a) 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 or required for No-Pooled Generators;
(b) any amendment to or variation of Part XI and/or Schedule 18;
and
(c) 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
per cent 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.
13.2A As between the Pool Members any amendment to or
variation of Schedule 22 shall require the approval of the Public
Electricity Suppliers in separate general meeting in accordance
with the provisions of that Schedule.
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 more of the Committee Members of a
request that any matter resolved upon on 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 been 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:
13.5.1 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 or are or will be unfairly 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 it sees fit to such marking in the
copying of such application to those persons 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 to do so). The
Executive Committee, each Pool Member, each Externally
Interconnected Party (not being a Pool Member), the Pool
Chairman, the Settlement System Administrator and the Pool Funds
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 the Dissentient Pool Member to a
determination by the Director in its favour.
PART IV
THE EXECUTIVE COMMITTEE
14 ESTABLISHMENT OF THE EXECUTIVE COMMITTEE
Establishment: The Pool Members hereby establish the Executive
Committee upon the terms and subject to the conditions of this
Agreement.
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 if 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) all 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 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 or
Peterborough 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 all of its affiliates and
related undertakings which are also Generators may only be cast
in favour of one Nominee,
and at the conclusion of the first round the three Nominees with
the highest number of Weighted Votes cast in their favour shall
be elected Committee Members;
(b) on the second round of voting:
(i) each Generator (not being (A) Central Power Limited or
Peterborough 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;
(c) on the third round of voting, each Small Generator which did
not vote in the first or 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 lot 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 (copies 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 cost 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).
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-mentioned Committee Member was
appointed) by reason of exercising their rights under Clause 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 were 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 Clauses 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.
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 of 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 Alternatives:
15.9.1 Each Committee Member 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 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 or to
him on behalf of his appointor and to complete his appointor's
voting paper on a poll on 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 Member. On a poll, an alternate Committee
Member shall be entitled (if his appointor is unable to do so) to
exercise (on behalf of 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 Appointment and Term:
16.2.1 The election of a Pool Chairman shall take place
either:
(i) at the annual general meeting or (as the case may be) an
extraordinary general meeting of Pool Members convened for that
purpose (where practicable) held not less than three months
before the end of the term of the then current Pool Chairman; or
(ii) should the Executive Committee so decide, by a postal vote
in accordance with Clause 16.4, such postal vote to have a
closing date which (where practicable) is not less than three
months before the end of the term of the then current Pool
Chairman.
16.2.2 Subject to Clause 16.2.4, the term of office of the
Pool Chairman shall be from 1st April in the year of his election
to the 31st March falling two years thereafter provided that:
(i) where the Pool Chairman is to be elected at an annual
general meeting or (as the case may be) an extraordinary general
meeting of Pool Members, 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 earlier than the date of such meeting);
(ii) where the Pool Chairman is to be elected by postal vote, if
the closing date of such postal vote is after 1st April, his term
of office shall commence from such date as shall be set out in
the notice of postal vote which shall have been sent to all Pool
Members by the Chief Executive in accordance with Clause 16.4;
and
(iii) his term of office shall expire before 31st March if 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 either in general meeting or (as the case may be) by
the terms of a postal vote resolve is to commence before that
date.
16.2.3 The appointment of the Pool Chairman shall be on such
terms and conditions (including, but not limited to, terms and
conditions in relation to reimbursement, hours of work and
removal (subject to Clause 13.1.2)) as have been approved by Pool
Members in general meeting. Any amendment to those terms and
conditions shall require the prior approval of Pool Members in
general meeting.
16.2.4 Not later than three months prior to the end of the two
year term of the then current Pool Chairman, Pool Members may
either (i) call and hold a general meeting or (ii) call and hold
a postal vote and, if the Pool Chairman agrees, may resolve to
extend the term of appointment of the Pool Chairman by one year.
If the resolution is approved in accordance with the terms of
this Agreement then the term of appointment shall be so extended
provided that under no circumstances shall the term of
appointment exceed three years.
16.2.5 If at any time the Pool Chairman shall resign or be
unable for whatever reason to continue to act, an extraordinary
general meeting shall be called in accordance with Clause 9.4 or
a postal vote shall be called in accordance with Clause 16.4 for
the purposes of electing a successor Pool Chairman. Unless that
successor Pool Chairman himself is removed, resigns or is unable
for whatever reason to continue to act, he shall hold office
until the 31st March falling closest to the date two years after
the date of his election and his appointment may be extended in
accordance with Clause 16.2.4.
16.3 Transitional Provision: The appointment of the Pool
Chairman whose two year term of office starts on 1st April, 1996
is hereby ratified and confirmed by all Pool Members.
16.4 Election procedure (postal vote): The Executive Committee
may (where practicable) resolve to call a postal vote to elect a
Pool Chairman. Where the Executive Committee so resolves, such
postal vote shall be held in accordance with the following
principles:
16.4.1 the Executive Committee shall instruct the Chief
Executive, who shall send a notice to Pool Members, stating that
a postal vote has been called and inviting nominations to be sent
to the Chief Executive within a period of not less than 21 days
from the date of such notice;
16.4.2 once such period for nomination has closed, the Chief
Executive shall send to all Pool Members a ballot paper
containing a list of all eligible nominees and a closing date for
the receipt by the Chief Executive of completed ballot papers,
such date being no less than 21 days from the date of such ballot
paper; and
16.4.3 each Pool Member shall have one vote and the successor
Pool Chairman shall be elected by single transferable vote in
accordance with the procedures approved by the Executive
Committee.
16.5 Election procedure (general meeting):
16.5.1 Where any successor Pool Chairman is to be elected at
an annual general meeting or (as the case may be) extraordinary
general meeting, nominations shall be delivered no later than 21
days prior to the relevant annual general meeting or (as the case
may be) extraordinary general meeting.
16.5.2 At the relevant annual general meeting or (as the case
may be) extraordinary general meeting, all eligible nominees
shall be proposed by the Pool Chairman (failing whom, the Chief
Executive). Each Pool Member shall have one vote and the
successor Pool Chairman shall be elected by single transferable
vote in accordance with the procedures approved by the Executive
Committee.
16.6 Nominations: Any Pool Member can nominate any one person,
whether not an employee of a Pool Member, to be Pool Chairman.
Nominations made pursuant to this Clause 16.6 shall be delivered
in writing to the Chief Executive within any time period
specified pursuant to Clause 16.4 or (as the case may be) Clause
16.5. Any such nomination shall only be valid where 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
in accordance with this Agreement and the relevant terms and
conditions if elected.
16.7 Functions: The Pool Chairman shall have and carry out only
such duties and responsibilities and exercise such powers as are
expressly provided in this Agreement and in his terms of
reference approved by the Executive Committee from time to time.
The Pool Chairman shall exercise impartially all such duties,
responsibilities and powers.
16.8 No voting rights: The Pool Chairman in his capacity as Pool
Chairman shall have no voting rights under this Agreement.
16.9 Indemnity: The Pool Chairman shall be indemnified and kept
indemnified jointly and severally by all Pool Members (and, as
between the 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 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 willful default or bad faith of, or
breach of duty or trust by, the Pool Chairman. The 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 on 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 per cent 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 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 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 traveling, 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 Contract Manager,
the personnel referred to in Clause 17.2.1, the Secretary and
each member of any sub-committee of the Executive Committee or of
any sub-group established by any such sub-committee (other than a
Committee Member, but 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 Contract Manager, the said
personnel, the Secretary or (as the case may be) any such member
of his, their or its power, duties and responsibilities under
this Agreement and all 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, the Contract
Manager, 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
if favour of an 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 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, the Contract Manager, 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 Meetings of the Executive Committee (other than special
meetings referred to in Clause 18.1.3) shall be held at least
quarterly (or 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 Committee 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 18.1.1
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 made such request, the Pool Chairman or (as the case may
be) the Chief Executive may himself convene 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 person 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 and, if he fails to do so, he or it shall be
deemed to have approved the same. The Secretary shall record 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 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 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.
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 meeting 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 attend. With the exception of attendances by the Pool
Chairman, the Chief Executive and the Pool Auditor, no payment
shall be made to any person who has the right by virtue of this
Clause 19.4 to attend Executive Committee meetings in respect of
any such attendance.
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 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,
23.3.2 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
or, in the case of the Settlement System Administrator, Order
issued by the Contract Manager under Schedule 4, 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 or
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 23.5 no payment shall be
made to Pool Members 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 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 think 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-committees 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, power, 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 on 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
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 and
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.
23.3 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 despatch 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 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 case 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 or Suppliers) in accordance with the written
instructions of that Generator and of each relevant affiliate and
related 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 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
the members of the relevant Group in accordance with the written
instruction so 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 a 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 10 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 percent 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 20 working day period for return of
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 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 working 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 all 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 a 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 Clause 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.
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 Clause 15.2.4, the interests of the Pool Member who cast
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 1996 Central Power Limited and Peterborough Power Limited
shall be deemed to be Pool Members who were 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 as a Committee Member for a Group
pursuant to Schedule 14, the interests of the PES Members of the
Group in respect of which he is appointed.
23.3 Protections:
23.3.1 The Executive Committee, each Committee Member, the
Pool Chairman, the Chief Executive, the Contract Manager 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, the Contract Manager 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
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
is 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
or the Contract Manager 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 of 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 traveling, 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.
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 properly incurred in
accordance with the PFA Accounting Procedure. For this purpose,
the costs and expenses of the Executive Committee shall include
properly incurred costs, expenses and liabilities off or
associated with 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 properly
incurred costs and expenses of any consultant or adviser retained
by the Executive Committee or any such person in the proper
performance of its of his duties and responsibilities.
24 POWER 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 of 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 it
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, Codes of Practice (including
commissioning reviews thereof by the Pool Auditor in accordance
with Clause 47.1.5 or by other technical experts) and Service
Lines;
24.2.7 the specific powers, duties and responsibilities set
out in Schedule 4;
24.2.8 the specific powers, duties and responsibilities set
out in Schedule 15;
24.2.9 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;
24.2.10 opening, maintaining and closing bank accounts for its
own purposes and crediting and debiting sums thereto;
24.2.11 controlling the development of the Pool Rules and
considering and approving or disapproving amendments to the Pool
Rules in accordance with Clause 7.4.2;
24.2.12 commissioning independent reviews of the Scheme and its
operation in accordance with Part XIII;
24.2.13 conducting reviews, preparing Works Programmes and
implementing Transitional Arrangements, all in accordance with
Clause 5;
24.2.14 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;
24.2.15 considering any representation from any Pool Member in
relation to any regular quarterly report prepared pursuant to
Clause 24.2.14 above or otherwise relating to any matter which is
the subject of this Agreement;
24.2.16 overseeing the standards of Metering Equipment and the
Codes of Practice, agreeing in accordance with paragraph 14 of
Schedule 21 dispensation 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;
24.2.17 dealing promptly and efficiently with any dispute
referred to it concerning Settlement or its operation (including
with respect to data);
24.2.18 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;
24.2.19 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, the Contract Manager, 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;
24.2.20 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;
24.2.21 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;
24.2.22 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;
22.2.23 subject to any applicable confidentiality provisions,
monitoring any litigation, arbitration or other proceedings
affecting or which may affect the Settlement System;
24.2.24 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 liaising with
all such persons on an ongoing and regular basis;
24.2.25 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 a ongoing and
regular basis;
24.2.26 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;
24.2.27 approving the Pool Banker and giving instructions for,
or consenting to, the removal of the same;
24.2.28 reviewing and approving or disapproving the Procedures
Manual in accordance with Clause 64;
24.2.29 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
24.2.30 determining the amount of the Second Tier Suppliers'
System Charge.
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.
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.
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.
25.5 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 in 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.
PART VI
THE SETTLEMENT SYSTEM ADMINISTRATOR
26 APPOINTMENT
ESIS 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 the SSA Arrangements.
27 [Not used].
28 [Not used].
PART VII
THE SETTLEMENT SYSTEM ADMINISTRATOR'S RESPONSIBILITIES
29 RESPONSIBILITIES
Responsibilities: Without prejudice to the generality of the
duties, responsibilities and obligations of the Settlement System
Administrator provided elsewhere in the SSA Arrangements.
29.1 Provision of information: The Settlement System
Administrator shall provide each Pool Member and the Ancillary
Services Provider upon request with 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 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 29.1.
29.2 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 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 29.2.
29.3 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
29.3.
30 [Not used].
31 [Not used].
32 [Not used].
33 [Not used].
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 as provided in Section
8 of Part G of the Appendix to Schedule 4 in respect of the
provision to such Party of all data and other information which
is required by the terms and conditions of Service Line 10
(Service to CEO and Pool Members to be made available to it by
the Settlement System Administrator.
34.2.2 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
may 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 500 pounds
sterling 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 o f 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.
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).
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.
34.4.3 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 of 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 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 Members, and each 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 Interconnection 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.
34A SECOND TIER SYSTEM CHARGES
34A.1 The Following provisions of this Section 34A 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").
34A.2 Subject to Section 34A.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.
34A.3 Subject to Section 34A.6, the Second Tier Suppliers'
Non-Pooled Generation 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 Non-Pooled Generator for whose Metering System
such Second Tier Supplier is the Registrant.
34A.4 Subject to Section 34A.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 authorised area.
34A.5 The second tier system charge payable by a Supplier in
respect of each calendar month in a Specified Accounting Period
shall be calculated as follows:
(a) in respect of each Second Tier Supplier, in accordance with
the following formula:
Second Tier Suppliers' System Charge times NOSP divided by 12
where NOSP is the total number of Second Tier Systems supplied by
such Supplier at the beginning of the relevant calendar month;
(b) in respect of each Second Tier Supplier and in addition to
the charge in Section 34A.5(a), in accordance with the following
formula:
Second Tier Suppliers' Non-Pooled Generation System Charge times
NNPG divided by 12
where NNPG is the total number of Metering Systems of Non-Pooled
Generators for which such Second Tier Supplier is the Registrant
at the beginning of the relevant calendar month;
(c) in respect of each Supplier (other than a Second Tier
Supplier), in accordance with the following formula:
Suppliers' System Charge times NMS divided by 12
where NMS is the total number of Non-Second Tier Systems in that
Supplier's authorised area as at the beginning of that month;
(d) 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
(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
(e) 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.
34A.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 34A.5(a),
34A.5(b) and 34A.5(c) 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.
34A.7 The Executive Committee will use its reasonable
endeavours to ensure that the aggregate of all second tier system
charges payable pursuant to Sections 34A.5(a), 34A.5(b) and
34A.5(c) and received by the Settlement System Administrator in
respect of the Accounting Period beginning on 1st April, 1997
meets the Total Second Tier System Charges specified for that
Accounting Period. 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.
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 and 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.
35.3 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.
35.3.1(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.
35.3.1(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 and 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.
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.
35.4 SSA's comments: The Executive Committee or the particular
sub-committee or sub-group in respect off 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.
35.5 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 person: 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 to 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.
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 [Not used].
37.2 Warranties: Without prejudice to Service Line 19 (System
Integration) and Section 9 of Schedule 4, nothing in this
Agreement shall imply or impose any requirement on the Settlement
System Administrator to give any warranty with respect to any
Software.
37.3 No liability: Each Party acknowledges that neither NGC nor
Energy Settlements and Information Services Limited shall have
any liability in respect of any software developed before the
Effective Date.
38 [Not used]
39 [Not used]
40 [Not used]
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 [Not used]
43 [Not used]
44 [Not used]
45 ESCROW ARRANGEMENTS
45.1 Escrow Agreement: On 17th March, 1992 the Settlement System
Administrator (for itself and on behalf of the Pool Members
acting through the Executive Committee) entered into an escrow
agreement (the "Escrow Agreement") in the form set out in
Schedule 7 with the National Computing Centre Limited (the
"Custodian"). The Settlement System Administrator has deposited
or will deposit as soon as it comes into existence:
45.1.1 a copy of the source code and load (machine executable)
modules relating to all Developed Application Software (as
defined in Schedule 4) 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 for;
and
45.1.2 a copy of all related manuals and other associated
documentation, including:
(a) any user requirement documents, together will 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;
(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 all authorised change requests associated with the
relevant design specification;
(d) any program and/or user guides prepared to assist in the
day-to-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 test
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 test where such tests are commissioned by the
Settlement System Administrator;
(g) any relevant client acceptance certificates and Pool
Auditor's reports, together with any reports recording such
clients' and the Pool Auditor's observations and comments on the
tests;
(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 licences for Licensed Application Software (as
defined in Schedule 4); and
(j) a list detailing all versions of Licensed Application
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 the 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 through the Charging Procedure) to procure that any
licence for any Licensed Application Software is on terms or
amended terms that permit the deposit of such Licensed
Application 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 the Settlement
System Administrator (in the case of the Settlement System
Administrator such approval not to be unreasonably withheld), and
(B) NGC shall use its reasonable endeavours to procure that any
licence for any Licensed Application Software licensed by it to
the Settlement System Administrator is on terms or amended terms
that permit the deposit of such Licensed Application 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 tits 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 [Not used]
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 accountants 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 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 or 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).
47.4 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.
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 shall be addressed to
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 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
(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 send 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 or recommendation. The
Executive Committee shall instruct the Settlement System
Administrator or (as the case may be) the Pool Funds
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
instruct 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 the Pool Members in
general meeting shall approve.
48.4 Access:
48.4.1 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.
48.4.2 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 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 PFA Accounting Procedure.
48.5.2 The costs of any audit, test, review or check pursuant
to Clause 47.1.1 to 47.1.5 (Inclusive) 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 in the case of any such corrective action) and
shall be borne by the Pool Funds Administrator and recovered by
it in accordance with the PFA Accounting Procedure.
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.
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 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 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.
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.
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: In the exercise of its duties and
responsibilities under this Agreement the Grid Operator shall
exercise that degree of care, diligence, skill and judgment which
would ordinarily be expected of a reasonably prudent operator of
the NGC Transmission System taking into account the circumstances
actually known to the Grid Operator, 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.
50.2 Miscellaneous:
50.2.1(a) The Grid Operator 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 50.2.4 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).
50.2.1(b) The Grid Operator 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.
50.2.2 Compliance with the Director's directions: No
liability whatsoever shall attach to the Grid Operator 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 Grid Operator is at all
times acting in good faith.
50.2.3 Prior approval: Where by terms of this Agreement the
Grid Operator is required to obtain the prior directions,
instructions, approval or consent of the Executive Committee or
the Chief Executive, the Grid Operator 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 Grid Operator.
50.2.4 Express authority: All directions and instructions of
the Executive Committee or the Chief Executive to the Grid
Operator shall, as between the Grid Operator and the Pool
Members, be deemed to have the express authority of, and shall be
binding without reservation upon, all Pool Members.
50.2.5 Authority of Pool Members: The Grid Operator 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.
50.2.6 General Meetings: The Grid Operator 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
Grid Operator shall have express written notice to the contrary
form 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.
50.2.7 Exceptions: Notwithstanding the foregoing provisions
of this sub-clause 50.2, in the performance of its duties and
responsibilities under this Agreement the Grid Operator shall not
be bound to act in accordance with the directions or instructions
of the Executive Committee or the Chief Executive if:
(a) to do so would cause the Grid Operator to breach any of its
obligations under the Act or its Transmission Licence; or
(b) the Grid Operator has reasonable grounds for believing that
it would so breach any of such obligations and has consulted the
Director and:
(i) the Director has not indicated that in his view it would not
involve any such breach; or
(ii) 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 Grid Operator
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 Grid Operator shall promptly notify
the Executive Committee.
50.2.8 Reference to the Director: If at any time the Grid
Operator has a concern which is properly and reasonably founded
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 Grid Operator 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 Grid Operator
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 is misconceived, vexatious or in
or in respect of an improperly or unreasonably founded concern,
the Grid Operator 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 Grid
Operator shall be so liable.
PART XI
ANCILLARY SERVICE 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 out 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;
(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.
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 o n 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 recommendations 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 discussion or
negotiations take place before contracting or as part of any
price review during the term of any Ancillary Services Agreement.
51.1.5 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 55.5.1 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 carry out 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 the 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 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 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 any 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 Independent Contractor: The Ancillary Services Provider
shall act as an independent contractor in carrying out its duties
pursuant to this Agreement 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.
51.9 Standard of care: In the exercise of its duties and
responsibilities under this Agreement the Ancillary Services
Provider shall exercise that degree of care, diligence, skill and
judgment which would ordinarily be expected of a reasonably
prudent operator of the Ancillary Services Business taking into
account the circumstances actually known to the Ancillary
Services Provider, 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.
51.10 Miscellaneous:
51.10.1(a) The Ancillary Services provider 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 51.10.4 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);
51.10.1(b) The Ancillary Services Provider 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.
51.10.2 Compliance with the Director's directions: No
liability whatsoever shall attach to the Ancillary Services
Provider 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 Ancillary Services Provider
is at all times acting in good faith.
51.10.3 Prior approval: Where by the terms of this Agreement
the Ancillary Services Provider is required to obtain the prior
directions, instructions, approval or consent of the Executive
Committee or the Chief Executive, the Ancillary Services Provider
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 Ancillary Serves Provider.
51.10.4 Express authority: All directions and instructions of
the Executive Committee or the Chief Executive to the Ancillary
Services Provider shall, as between the Ancillary Services
Provider and the Pool Members, be deemed to have the express
authority of, and shall be binding without reservation upon, all
Pool Members.
51.10.5 Authority of Pool Members: The Ancillary Services
provider 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.
51.10.6 General Meetings: The Ancillary Services Provider
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 Ancillary Services Provider 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.
51.10.7 Exceptions: Notwithstanding the foregoing provisions
of this sub-clause 51.10, in the performance of its duties and
responsibilities under this Agreement the Ancillary Service
Provider shall not be bound to act in accordance with the
directions or instructions of the Executive Committee or the
Chief Executive if:
(a) to do so would cause the Ancillary Services Provider to
breach any of its obligations under the Act or its Transmission
Licence; or
(b) the Ancillary Services Provider has reasonable grounds for
believing that it would so breach any of such obligations and has
consulted the Director and:
(i) the Director has not indicated that in his view it would not
involve any such breach; or
(ii) 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 Ancillary
Services Provider 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 Ancillary Services Provider shall promptly
notify the Executive Committee
51.10.8 Reference to the Director: If at any time the
Ancillary Services Provider has a concern which is properly and
reasonably founded 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 Ancillary Services Provider shall either comply
with such direction or instruction or by notice in writing refer
the same to the Director, such notice to et out in full the
directions or instructions given to the Ancillary Services
Provider 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 Ancillary Services Provider 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 Ancillary Services Provider shall be so
liable.
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 TRANSMISSION SERVICES
It is expressly acknowledged by the Parties that neither (i) the
termination or expiry of the provisions of Clause 51A, 51B or 51C
of this Agreement as in force immediately prior to the coming
into effect of this Clause 51A, including the Transmission
Services Scheme ("TSS") (as therein defined) and/or any addition
to or amendment of any other provision of this Agreement effected
pursuant to those Clauses whilst in force nor (ii) the
termination or expiry of previous clauses in this Agreement which
related to UMIS2 (as was therein defined) shall 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 each of UMIS2 and/or TSS 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 UMIS2 and/or TSS in respect of disputes arising
after such termination or expiry in respect of periods falling
before such termination or expiry.
51B TRANSMISSION SERVICES SCHEME 2
General:
51B.1 Notwithstanding any other provision of this Agreement,
the provisions of this Clause shall govern the rights and
obligations of the Parties in relation to the Transmission
Services Scheme 2.
51B.2 In Recital (G), this Clause 51B, Schedule 9 and
Schedule 11, for so long as amended by the provisions of Clause
51B.4, the term "Transmission Services Scheme 2" means the scheme
to provide an incentive for the Grid Operator to minimise (taking
into account other associated costs) a proportion of the costs
arising under this Agreement and/or resulting from the operation
of the NGC Transmission System including those arising form the
acquisition of Ancillary Services, and more particularly:
(a) which provides for payments between the Grid Operator
(acting through its agent the Ancillary Services Provider) and
Consumers in relation to:
(i) the Transmission Service Uplift Payment, which comprises a
Reactive Power Daily Payment, a Transport Uplift Daily Payment
and an Energy Uplift Daily Payment; and
(ii) the Transmission Losses Daily Payment; and
(b) which provides for an adjustment in relation to out of merit
costs,
in the form agreed pursuant to Clause 51B.6 as the same may be
amended from time to time in accordance with the terms of that
Clause.
51B.3 The Transmission Services Scheme 2:
(a) The Parties agree (and agree that they will procure that the
Executive Committee will so agree) that in the period from 00.00
hours on 1st April, 1996 to 24.00 hours on 31st March, 1997 the
Transmission Services Scheme 2, the amendments and/or additions
to the Pool Rules to implement the Transmission Services Scheme 2
and the provisions of this Clause, shall apply. This Clause
51B.3(a) may not be amended without the prior written consent of
all Parties.
(b) As indicated in Clause 51B.3(a), the provisions of Clause
51B, the Transmission Services Scheme 2 and any addition to or
amendment of any other provisions of this Agreement or the Pool
Rules effected pursuant to this Clause 51B shall terminate at
24.00 hours on 31st March 1997, except for any provision,
addition or amendment which is required to continue beyond that
date to give effect to the operation of the Transmission Services
Scheme 2 in respect of any period before that date.
51B.4 The Parties agree:
(a) to be bound by the terms, conditions and other provisions of
the Transmission Services Scheme 2;
(b) that the Grid Operator (acting through its agent the
Ancillary Services Provider) and each Consumer shall make such
payments as are required and determined by the provisions of the
amendments and/or additions to the Pool Rules to implement the
Transmission Services Scheme 2;
(c) that for the period during which this Clause 51.B applies,
the following changes shall be made to the provisions of this
Agreement:
(i) in paragraphs 1, 5.4, 5.14, 17.5 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 in
relation to the Transmission Services Scheme 2;
(ii) in paragraph 2.1 of Schedule 11 the words "and the
Transmission Services Scheme 2" shall be inserted after the words
"Ancillary Services";
(iii) in paragraph 5.14 of Schedule 11 the words "or in
respect of the Transmission Services Scheme 2" shall be inserted
after the first reference to "Ancillary Services" and the words
"or in respect of the Transmission Services Scheme 2 for the
relevant payment day" shall be inserted after the words "that
same day" and in paragraph 5.15 of Schedule 11 the words "or the
Ancillary Services Provider" shall be inserted after the words
"Pool Member" wherever they occur in that paragraph; and
(iv) in Part 4 of Schedule 11, references to information in
respect of Ancillary Services shall be deemed to include
information in respect of the Transmission Services Scheme 2, in
paragraph 17.5 the information required shall include the total
amount payable by the Ancillary Services Provider (exclusive of
United Kingdom Value Added Tax) pursuant to the Transmission
Services Scheme 2 in respect of each Settlement Day, in paragraph
17.6 the Pool Funds Administrator shall include in its
verification the amount shown to be payable by the Ancillary
Services Provider pursuant to the Transmission Services Scheme 2
in respect of each Settlement Day and in paragraph 22.4 the
Confirmation Notices shall include the total amount payable by
the Ancillary Services Provider pursuant to the Transmission
Services Scheme 2 in respect of each Settlement Day.
51B.5 The Suppliers and the Grid Operator may request the
Parties and the Executive Committee promptly (and in any event
before the date the Transmission Services Scheme 2 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 the Transmission Services Scheme 2.
The Parties shall not refuse (and agree that they will procure
that the Executive Committee shall not refuse) any such request
on the grounds of any objections to any provisions of any of the
Annexes of Appendix 3 to the Pool Rules as agreed from time to
time between the Suppliers and the Grid Operator.
51B.6 Effectiveness:
Neither this Clause 51B (other than Clauses 51B.2, 51B.5 and this
Clause 51B.6), nor the Transmission Services Scheme 2, nor any
amendment, variation or replacement of either of them, nor any
amendment, variation or replacement to the Pool Rules relating to
the Transmission Services Scheme 2, may become effective except
with the prior agreement of the Suppliers (which agreement shall
be given by the passing of a resolution in a separate class
meeting) and the prior written agreement of the Grid Operator.
51B.7 Survival:
(a) Termination or expiry of the provisions of this Clause 51B,
the Transmission Services Scheme 2 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 or the
Grid Operator's accrued rights and liabilities under the
Transmission Services Scheme 2 at the date of such termination or
expiry, which accrued rights shall, for the avoidance of doubt,
include the ability to adjust sums calculated under the
Transmission Services Scheme 2 in respect of disputes arising
after such termination or expiry in respect of periods falling
before such termination or expiry; and
(b) the provisions of this sub-Clause 51B.7 and Clause 51B.3(b)
shall survive the termination of the Transmission Services Scheme
2.
51B.8 Definitions:
In, and in relation to, this Clause 51B "Consumer" shall bear the
meaning given to that term in the Pool Rules.
52 SETTLEMENT RE-RUNS
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, aware 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
re-allocation 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
practicable 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 requires the Settlement System Administrator to carry
out any Re-run, the reasons for such requirement, the 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 require 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.
PART XII
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 Conditions 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 added to the Accountable
Interests of that person in other Generating Units (whether
situate within 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.
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.
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);
"Fuel Security Reimbursement" means the amount specified in
a Payment Instruction which a Generator is liable to reimburse to
those persons specified in that Payment Instruction (excluding
Fuel Security Interest, if any, in relation thereto); and
"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 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:
59.1.1 Following delivery of a Payment Instruction to the
Pool Funds Administrator, the Pool 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.
59.1.2 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 calendar month a statement reflecting
all entries recorded in the Fuel Security Ledger of that
Generator over the course of the previous month.
59.1.3 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.
59.1.4 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.
59.1.5 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.
59.1.6 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.
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 in 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.
PART XV
METERING
60 METERING
60.1 Introduction: The rights and obligations of each Party of
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 (and shall be commissioned in accordance with the
relevant Code of Practice) before the Settlement System
Administrator is required to take such Metering System and the
data derived therefrom into account for the purposes of
Settlement.
60.3.2 Each Metering System (and the identities 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 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; or
(iv) 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 Non-Pooled Generator, the Registrant
ceases to act as Second Tier Supplier purchasing generation from
such Non-Pooled Generator 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
Supplier 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 Administrator.
60.3.6 Any notice of a new, or a change in an existing,
Registrant, Equipment Owner Operator, Second Tier Customer, Non-
Pooled Generator or Host PES or any Form of Acknowledgment
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.
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.
60.3.12 A Metering System for recording the output of a
Non-Pooled Generator must be capable of being identified
separately for the purposes of Settlement from any Metering
System recording demand. For the avoidance of doubt, it is
acknowledged that one set of Metering Equipment may comprise
more than one separately-identified Metering System.
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 All Metering systems at the site of a Non-Pooled
Generator, which contain all or any part of the same Metering
Equipment must have the same Operator.
60.4.3 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
Acknowledgment 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.
60.4.4 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.
60.4.5 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").
60.4.6 If a person which is an Operator in respect of any
Metering System at the site of a Non-Pooled Generator 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 the relevant Metering Equipment
shall upon such cessation be assumed by the Registrant of the
Metering System registered for supply with respect to such
Metering Equipment. Such Registrant 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").
60.4.7 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.
60.4.8 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.
60.4.9 Any Registrant which is deemed to be the Operator
of a Metering System pursuant to the provisions of Clause 60.4.5
shall, subject to Clauses 60.4.10 and 60.4.11, 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.
60.4.10 If a Registrant to which Clause 60.4.9 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 60.4.9 shall expire without a replacement Operator being
registered with the Settlement System Administrator in 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 or
take a supply of 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.
60.4.11 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
(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 or Non-Pooled Generator 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 or a Metering System, a
note to this effect;
(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, Non-Pooled Generator 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, Second Tier Customer or Non-
Pooled Generator.
60.5.3 The Settlement System Administrator shall keep
the Register up to date, noting changes to Registrants,
Operators, Equipment Owners, Host PES's, Second Tier Customers,
Non-Pooled Generators' 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 links 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 Outstations to the Settlement System Administrator or
its agent other than exchange links which form part of
communications Equipment.
(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, Non-Pooled Generators 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 Non-Pooled Generator, 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 as specified by the Executive Committee
subject to the consent of any relevant class of Pool Members.
60.7.2 The levels of accuracy for Metering Equipment at
points of connection of Non-Pooled Generators shall be as
specified by the Executive Committee subject to the consent of
any relevant class of Pool Members."
60.7.3 Any change to the standards of accuracy of
Metering Equipment required for Second Tier Customers up to (and
including) 100kW before 31st March, 1998 shall be a change to the
class rights of Suppliers.
60.7.4 Any change to the standards of accuracy of
Metering Equipment required for Non-Pooled Generators 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:-
(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 the 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 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 favour 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 resolving such dispute.
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 or Non-Pooled Generator 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 provide 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;
(ii) nothing in this Clause 60.13.1 shall require the Registrant
actively to provide such data to such Second Tier Customer or
such Non-Pooled Generator 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 and, for the
purposes of the performance by the Pool Auditor of its functions
under Part IX, the Pool Auditor are hereby authorised 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 or, as the case may be, the Pool
Auditor 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 or Non-Pooled Generator such data relating
to it as is referred to in Clause 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 programme 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 programme shall be deemed to be an approved Works Programme
for all purposes of this Agreement and the provisions of Clauses
5.13 and 5.14 shall apply mutatis mutandis.
60.15 Appointment of Agents by Settlement System
Administrator: Notwithstanding the provisions of paragraph 7.2.2
of Schedule 4 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 with effect from 31st March, 1994:
60.16.1 If, for the purposes of Clause 60.15, the
Settlement System Administrator appoints 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 or Non-
Pooled Generators as the Settlement System Administrator may
direct, then the provisions of Clauses 60.16.1 to 60.16.5 and
Clause 60.17 shall, inter alia, apply to such arrangements.
60.16.2 The Settlement System Administrator shall, prior
to appointing any Second Tier Agent pursuant to Clause 60.16.1,
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
60.16.2 by the Executive Committee.
60.16.3 The Settlement System Administrator shall use
reasonable endeavours 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.
60.16.4 The Settlement System Administrator shall use
reasonable endeavours 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 so as to cause a breach by the
Settlement System Administrator of its obligations pursuant to
Clauses 68 or 69 of this Agreement.
60.16.5 The Settlement System Administrator shall use
reasonable endeavours to procure that upon the reasonable request
of the 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.
60.17 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 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 enable
implementation of any changes to the Second Tier Data Collection
System on that date.
(d) In the event of an agreement within (a), (b) 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 Clause 34A and
paragraph 3 of Part G of the Appendix to Schedule 4.
60.18 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.
60.19 Second Tier Unmetered Supplies:
60.19.1 Notwithstanding any of the other provisions of
this Agreement, including Clause 60 (other than the provisions of
this clause 60.19) and Schedule 21, the provisions of this clause
60.19 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.
60.19.2 Neither this Clause 60.19 (save for the
requirements set out in this Clause 60.19.2 for the bringing into
effect of this Clause 60.19) 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 60.19 (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 copy of any proposed Second Tier
Unmetered Supplies Procedures; and
(ii) so long as none of the recipients of the notice referred to
in Clause 60.19.2(i) shall have given a counternotice to the
Chief Executive before the date on which this Clause 60.19 and/or
the Second Tier Unmetered Supplies Procedures are to become
effective stating, on reasonable grounds, an objection to this
Clause 60.19 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 60.19.2(ii) the Chief Executive shall, as
soon as is reasonably practicable, notify the persons referred
to in Clause 60.19(i) of that fact.
60.19.3 Nothing in this Clause 60.19 shall permit the
adoption, in the Second Tier Unmetered Supplies Procedure 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.
60.19.4 Except where the context otherwise requires, in
this Clause 60.19:
"Second Tier Unmetered Supplies" means unmetered street lighting
and related supplies of a type which as at the date this Clause
60.19 becomes effective are permitted to be made by a Second Tier
Supplier;
"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.
60.19.5 The Executive Committee may determine that Agreed
Procedures are necessary to implement this Clause 60.19 or the
Second Tier Unmetered Supplies Procedures and in such case
nothing in this Clause 60.19 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.
60.19.6 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 60.19 can
become effective.
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 Suppliers upon
terms and conditions to be set out in Schedule 11 to this
Agreement;
"Poor Civil Emergency" shall have the meaning ascribed to it
in Clause 61.2.1;
"Pool Civil Emergency Event" shall mean an event or series
of events which satisfies the conditions set out in Clause
61.3.2;
"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 32.3 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 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
(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 provision 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 per cent 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 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 constitutes(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.
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 per cent 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 exercise 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.
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.
(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 Clause 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 Clause.
(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.
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 Clause 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 utilise the Civil
Emergency Pool Credit Facility; and
(ii) Sections 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 Licences (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 32.3
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 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.
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 per cent 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 circumstance, 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.
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 utilised 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 61.2.2; 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 Dissenting Pool Member's right
of appeal pursuant to Clause 13.5. The Director shall determine
the matter within 60 days of receipt of 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
Clause 61.8.1 that a Pool Civil Emergency Period or Pool Rules
Civil Emergency Period should commence, or as 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 Clause 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 Rules 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 Clause 61.8.3; or
(b) If the Director shall determine in accordance with
Clause 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 Clause 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 Clause 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
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.
PART XVII
TRADING SITE
62 TRADING SITE
Trading Site: The provisions of Schedule 17 shall have
effect.
PART XVIII
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 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 or institution, on the other hand;
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 purposes 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 form 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);
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 provision 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 expressions 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 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 resources available to it, the Pool Funds
Administrator shall at all times conduct itself in a manner
calculated to achieve the principal objects and purposes 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 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 63.3.1.
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 authorised 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.
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 it 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 for 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.
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 unremedied 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 event an Event of Default;
66.1.2 at the same time as Majority Default Calling
Creditors declare such an Event of Default or any time
thereafter, Majority Default Calling Creditors may by notice to
the Executive Committee (copies 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,
Majority Default Calling Creditors may by notice to the
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 an 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 events referred to in the
foregoing provision of this Clause 66 are:-
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 66.3.6) 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 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 for "o750" there was
substituted o10,000 and, further, the Defaulting Pool Member
shall not be deemed to be unable to pay its debts for the
purposes of paragraph (a) above if 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 Licence (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 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 System) the 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 endeavours to effect or (as the case may be) give
instructions to effect such De-energisation as quickly as
practicable having regard to all the circumstances affecting such
De-energisation (including any operational difficulties and
relevant Licence duties).
66.4.3 Each Pool Member hereby irrevocably and unconditionally
consents to its De-energisation by the Grid Operation and/or, as
the case may be, the Relevant User in 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 are disregarded) of all
sums (including United Kingdom Value Added Tax) which such
Defaulting Pool Member is required under this Agreement to pay in
respect of electricity taken by 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 for 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 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.
67.5 Clause 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.
PART XX
CONFIDENTIALITY
68 DEFINITIONS AND INTERPRETATION
68.1 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 Service Line 11
(Listings and Load Modules);
"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 Licence;
"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 Licence, 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 to that term in Clause 70.1;
"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 licence; 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 Licence);
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 licence, contract or
arrangement; and
69.1.3 used by Business Personnel for the purpose of
carrying on any activities other than Permitted Activities,
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
Licence or any document referred to in the NGC Transmission
Licence with which NGC or any subsidiary of NGC is required by
virtue of the Act or the NGC Transmission Licence 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
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 all and any information or data supplied to or acquired
by it from or in relation to the other 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
System;
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 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 (other than of NGC or any subsidiary thereof) who
is:-
(a) authorised by licence 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.
69.6 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 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 Licence).
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 System
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 the 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 or 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 person 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.
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 of 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
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 preserve 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 Confidential
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 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, 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
(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 Members(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.
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.
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 those 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 Pool Member: The Parties acknowledge that NGC is not in
any of its capacities under this Agreement a Pool Member.
72.4 Wholly-owned subsidiary: NGC shall procure that so long as
Energy Settlements and Information Services Limited is appointed
Settlement System Administrator it shall at all times remain a
wholly-owned subsidiary of, and wholly controlled by, NGC.
73 [Not used.]
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 the SSA Arrangements by
reason of Force Majeure (but subject, in the case of the
Settlement System Administrator, to Section 33 of Schedule 4):-
74.1.1 the SSA Arrangements shall remain in effect; but
74.1.2 (a) the Non-Performing Party's relevant
obligations;
(b) the obligations of each of the other Parties owned to the
Non-Performing Party under the SSA Arrangements; and
(c) any other obligations (not being payment obligations) of
such other Parties under the SSA Arrangements 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 equal 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
(B) the Non-Performing Party uses all reasonable efforts to
remedy its inability to perform.
74.2 Discussions: As soon as 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 the SSA
Arrangements, any notice or other communication to be given by
one Party to another under, or in connection with the matters
contemplated by, the SSA Arrangements shall be addressed to the
recipient and sent to the address, telex number or facsimile
number of such other Party given in the SSA Arrangements 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, the SSA Arrangements shall be sent
to the Secretary at the address, telex number or facsimile number
given in the SSA Arrangements 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.
75.3 Deemed receipt: Save as otherwise expressly provided in the
SSA Arrangements, any notice or other communication to be given
by any Party to any other Party under, or in connection with the
matters contemplated by, the SSA Arrangements 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
75.3.4 in the case of facsimile, on acknowledgment by the
addressee's facsimile receiving equipment (where such
acknowledgment occurs before 1700 hours on the day of
acknowledgment) and in any other case on the day following the
day of acknowledgment.
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 the SSA Arrangements provided that any Party
may assign by way of security only all or any of its rights over
receivables arising under the SSA Arrangements.
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 constitute an original,
but all the counterparts shall together constitute but one and
the same instrument.
78 WAIVERS; REMEDIES NOT CUMULATIVE
78.1 Waivers: No delay by or omission of any Party in exercising
any right, power, privilege or remedy under the SSA Arrangements
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 the SSA Arrangements 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 statute in respect of the subject
matter of the SSA Arrangements (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 waives 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
officers, employees and agents to the same extent from all
duties, liabilities, responsibilities or obligations provided by
common law or statute in respect of the matters 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 the SSA Arrangements shall exclude or restrict or
otherwise prejudice or affect any of the rights, powers,
privileges, remedies, duties 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 the SSA
Arrangements 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:
(a) refuses, or formally indicates an intention to refuse,
authorisation of, or exemption to, any of the provisions of or
arrangements contained in the SSA Arrangements (in the case of a
refusal either by way of outright refusal or by way of requiring
the amendment or deletion of any provision of the SSA
Arrangements and/or the inclusion of any provision in the SSA
Arrangements and/or the giving of undertakings or the acceptance
of conditions as to future conduct before such authorisation or
exemption can be granted); or
(b) formally indicates that to continue to operate any provision
of the SSA Arrangements may expose the Parties to sanctions under
any law, order, enacting or regulations, 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
and, in all cases, whether initially or at the end of any earlier
period or periods of exemption then, in any such case, the
Parties will negotiate in good faith with a view to agreeing one
or more provisions which may be substituted for such invalid,
unenforceable or illegal provision which substitute provision(s)
is(are) satisfactory to the Competent Authority(ies) and
produce(s) as nearly as is practicable in all the circumstances
the appropriate balance of the commercial interest of the
Parties.
80 ENTIRE AGREEMENT
The SSA Arrangements contain or expressly refer to the entire
agreement between the Parties with respect to the subject matter
hereof and expressly exclude any warranty, condition or another
undertaking 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 the SSA Arrangements.
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 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 contrary 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 the SSA Arrangements 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 2950 (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 make 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.
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 our in connection with
the SSA Arrangements and that accordingly any suit, action or
proceeding (together in this Clause 84 referred to as
"Proceedings") arising out of or in connection with the SSA
Arrangements 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 is 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.
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 Proceedings in the courts where
this Agreement otherwise provides for Proceedings to be referred
to arbitration.
85 GOVERNING LAW
The SSA Arrangements shall be governed by, and construed in
all respects in accordance with, English law.
IN WITNESS whereof this Agreement has been duly executed the day
and year first above written.