Exhibit 10(C)
Western Systems Power Pool
Rate Schedule FERC No. 6
WESTERN SYSTEMS POWER POOL
AGREEMENT
(C) Western System Power Pool, Inc. 2003
All rights reserved
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool (Note: Above date is incorrect;
Issued on: November 30, 2004 should be September 1, 2005)
Western Systems Power Pool Second Revised Sheet No. 1
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 1
TABLE OF CONTENTS
PAGE
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1. PARTIES............................................................. 4
2. RECITALS............................................................ 4
3. AGREEMENT........................................................... 5
4. DEFINITIONS......................................................... 5
5. TERM, TERMINATION AND WITHDRAWAL.................................... 11
6. SERVICE SCHEDULES AND WSPP DEFAULT TRANSMISSION TARIFF.............. 12
7. ADMINISTRATION...................................................... 13
8. EXECUTIVE AND OPERATING COMMITTEES.................................. 16
9. PAYMENTS............................................................ 20B
10. UNCONTROLLABLE FORCES............................................... 22
11. WAIVERS............................................................. 24
12. NOTICES............................................................. 24
13. APPROVALS AND EFFECTIVENESS......................................... 25
14. TRANSFER OF INTEREST IN AGREEMENT................................... 27
15. SEVERABILITY........................................................ 28
16. MEMBERSHIP.......................................................... 28
17. RELATIONSHIP OF PARTIES............................................. 29A
18. NO DEDICATION OF FACILITIES......................................... 30
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Third Revised Sheet No. 2
Rate Schedule FERC No. 6 Superseding Second Revised Sheet No. 2
TABLE OF CONTENTS
PAGE
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19. NO RETAIL SERVICES.................................................. 30
20. THIRD PARTY BENEFICIARIES........................................... 30
21. LIABILITY AND DAMAGES............................................... 30
22. DEFAULT OF TRANSACTIONS UNDER THIS AGREEMENT AND CONFIRMATIONS...... 34
22A. DEFAULT IN PAYMENT OF WSPP OPERATING COSTS.......................... 41
23. OTHER AGREEMENTS.................................................... 43
24. GOVERNING LAW....................................................... 43
25. JUDGMENTS AND DETERMINATIONS........................................ 43
26. COMPLETE AGREEMENT.................................................. 44
27. CREDITWORTHINESS.................................................... 44
28. NETTING............................................................. 46
29. TAXES............................................................... 47A
30. CONFIDENTIALITY..................................................... 48
31. TRANSMISSION TARIFF................................................. 49
32. TRANSACTION SPECIFIC TERMS AND ORAL AGREEMENTS...................... 49
33. PERFORMANCE, TITLE, AND WARRANTIES FOR TRANSACTIONS UNDER SERVICE
SCHEDULES........................................................... 52A
34. DISPUTE RESOLUTION.................................................. 53
35. FORWARD CONTRACTS................................................... 56
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Fifth Revised Sheet No. 3
Rate Schedule FERC No. 6 Superseding Fourth Revised Sheet No. 3
TABLE OF CONTENTS
PAGE
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36. TRADE OPTION EXCEPTION.............................................. 56
37. ADDITIONAL REPRESENTATIONS AND WARRANTIES........................... 57
38. FLOATING PRICES..................................................... 58
39. AMENDMENT........................................................... 58B
40. EXECUTION BY COUNTERPARTS........................................... 58C
41. WITNESS............................................................. 59
EXHIBIT A: NETTING
EXHIBIT B: FORM OF COUNTERPARTY GUARANTEE AGREEMENT
EXHIBIT C: SAMPLE FORM FOR CONFIRMATION
EXHIBIT D: WSPP MEDIATION AND ARBITRATION PROCEDURES
SERVICE SCHEDULES
A. ECONOMY ENERGY SERVICE
B. UNIT COMMITMENT SERVICE
C. FIRM CAPACITY/ENERGY SALE OR EXCHANGE SERVICE
LIST OF MEMBERS
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 4
Rate Schedule FERC No. 6 Superseding Original Sheet No. 4
1. PARTIES:
The Parties to this Western Systems Power Pool Agreement (hereinafter
referred to as "Agreement") are those entities that have executed this
Agreement, hereinafter sometimes referred to individually as "Party"
and collectively as "Parties," but excluding any such entity that
withdraws its participation in the Agreement. An entity shall become a
Party on the date specified in Section 16.6.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Third Revised Sheet No. 5
Rate Schedule FERC No. 6 Superseding Second Revised Sheet No. 5
2. RECITALS
2.1 Through this Agreement, the WSPP administers a multi-lateral,
standardized agreement applicable to capacity and/or energy
transactions between members and is available to entities (which
qualify for membership under Section 16) throughout the entire
continental United States, Canada, and Mexico.
2.2 This Agreement serves two functions. First, it sets out the rules
applicable to the operation of the WSPP. Second, it sets out the terms
for the standardized agreement used for capacity and/or energy
transactions between members.
2.3 This Agreement facilitates physical transactions in capacity and/or
energy under a FERC accepted or approved rate schedule (this Rate
Schedule FERC No. 6).
2.4 Through the standardization of terms for transactions in capacity
and/or energy which facilitates such transactions, the public interest
has been and will continue to be served.
3. AGREEMENT:
In consideration of the mutual covenants and promises herein set
forth, the Parties agree as follows:
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 5A
Rate Schedule FERC No. 6 Superseding Original Sheet No. 5A
4. DEFINITIONS:
The following terms, when used herein with initial capitalization,
whether in the singular or in the plural, shall have the meanings
specified:
4.1 Agreement: This Western Systems Power Pool Agreement, including the
Service Schedules and Exhibits attached hereto, as amended; provided,
however, that Confirmation(s) are not included within this definition.
4.1a Administrative Committee: A sub-committee of the Executive Committee
in accordance with Section 8.1.2.
4.1aa Broker: An entity or person that arranges trades or brings together
Purchasers and Sellers without taking title to the power.
4.1b Business Day(s): Any day other than a Saturday or Sunday or a national
(United States or Canadian, whichever is applicable) holiday. United
States holidays shall be holidays observed by Federal Reserve member
banks in New York City. Where both the Seller and the Purchaser have
their principal place of business in the United States, Canadian
holidays shall not apply. Similarly, where both the
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Fourth Revised Sheet No. 6
Rate Schedule FERC No. 6 Superseding Third Revised Sheet No. 6
Seller and the Purchaser have their principal places of business in
Canada, Canadian holidays shall apply and United States holidays shall
not apply. In situations where one Party has its principal place of
business within the United States and the other Party's principal
place of business is within Canada, both United States and Canadian
holidays shall apply.
4.1c California ISO: The California Independent System Operator Corporation
or any successor organization.
4.1d Confirmation(s): The confirmations for transactions developed and made
effective in accordance with Section 32.
4.1e Contract Price: The price agreed to between the Seller and the
Purchaser for a transaction under the Agreement and Confirmation.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Third Revised Sheet No. 6A
Rate Schedule FERC No. 6 Superseding Second Revised Sheet No. 6A
4.1f Contract Quantity: The amount of capacity and/or energy to be supplied
for a transaction under the Agreement.
4.2 Control Area: An electric system capable of regulating its generation
in order to maintain its interchange schedule with other electric
systems and to contribute its frequency bias obligation to the
interconnection as specified in the North American Electric
Reliability Council (NERC) Operating Guidelines.
4.2a Costs: As defined in Section 22.3 of this Agreement.
4.2b Dealer: An entity or person that buys or sells power and takes title
to the power at some point.
4.2c Defaulting Party: As defined in Section 22.1 of this Agreement.
4.2d Determination Period: As defined in Section 38.2 of this Agreement.
4.3 Economy Energy Service: Non-firm energy transaction whereby the Seller
has agreed to sell or exchange and the Purchaser has agreed to buy or
exchange energy that is subject to immediate interruption upon
notification, in accordance with the Agreement, including Service
Schedule A, and any applicable Confirmation.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Third Revised Sheet No. 7
Rate Schedule FERC No. 6 Superseding Second Revised Sheet No. 7
4.4 Electric Utility: An entity or lawful association which (i) is a
public utility, Independent Power Producer, or Power Marketer
regulated under applicable state law or the Federal Power Act, or (ii)
is exempted from such regulation under the Federal Power Act because
it is the United States, a State or any political subdivision thereof
or an agency of any of the foregoing, or a Rural Utilities Service
cooperative, or (iii) is a public utility, Independent Power Producer,
or Power Marketer located in Canada or Mexico that is similarly
regulated.
4.4a ERCOT: Electric Reliability Council of Texas, Inc., and any successor
organization.
4.4b Event of Default: As defined in Section 22.1 of this Agreement.
4.5 Executive Committee: The committee established pursuant to Section 8
of this Agreement.
4.6 FERC: The Federal Energy Regulatory Commission or its regulatory
successor.
4.7 Firm Capacity/Energy Sale or Exchange Service: Firm capacity and/or
energy transaction whereby the Seller has agreed to sell or exchange
and the Purchaser has agreed to buy or exchange for a specified period
available capacity with or without associated energy which may include
a Physically-Settled Option and a capacity transaction in accordance
with the Agreement, including Service Schedule C, and any applicable
Confirmation.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 7A
Rate Schedule FERC No. 6 Superseding Original Sheet No. 7A
4.7a First Party: As defined in Section 27 of this Agreement.
4.7b Floating Price: As defined in Section 38.1 of this Agreement.
4.7c Gains: As defined in Section 22.3 of this Agreement.
4.7d Guarantee Agreement: An agreement providing a guarantee issued by a
parent company or another entity guaranteeing responsibility for
obligations arising under this Agreement and Confirmation. A sample
form of Guarantee Agreement is provided in Exhibit B.
4.7e Guarantor: The entity providing a guarantee pursuant to a Guarantee
Agreement.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Third Revised Sheet No. 8
Rate Schedule FERC No. 6 Superseding Second Revised Sheet No. 8
4.8 Hub: An electronic communication center that functions as a central
point to electronically receive and assemble data for offers to buy or
sell power or transmission service from each Party and make that data
electronically available concurrently to all Parties.
4.9 Incremental Cost: The forecasted expense incurred by the Seller in
providing an additional increment of energy or capacity during a given
hour.
4.10 Independent Power Producer: An entity which is a non-traditional
public utility that produces and sells electricity but which does not
have a retail service franchise.
4.11a Letter of Credit: An irrevocable, transferable, standby letter of
credit, issued by an issuer acceptable to the Party requiring the
Letter of Credit.
4.11b Losses: As defined in Section 22.3 of this Agreement.
4.11c Market Disruption Event: As defined in Section 38.2 of this
Agreement.
4.11d NERC: North American Electric Reliability Council or any successor
organization.
4.11e Non-Defaulting Party: As defined in Section 22.1(a) of this
Agreement.
4.11f Non-Performing Party: As defined in Section 21.3(a) of this
Agreement.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 8A
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 8A
4.11g Non-Standard Confirmation Provisions: Provisions other than Standard
Confirmation Provisions.
4.11h NYMEX: New York Mercantile Exchange and any successor organization.
4.12 Operating Agent: An agent of the WSPP as may be designated by the
Executive Committee from time to time.
4.13 Operating Committee: That committee established pursuant to Section 8
of this Agreement.
4.13a Party or Parties: As defined in Section 1 of this Agreement.
4.13b Performing Party: As defined in Section 21.3(a) of this Agreement.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 9
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 9
4.14 Power Marketer: An entity which buys, sells, and takes title to
electric energy, transmission and/or other services from traditional
utilities and other suppliers.
4.14a Physically-Settled Option: Includes (i) a call option which is the
right, but not the obligation, to buy an underlying power product as
defined under Service Schedules B or C according to the price and
exercise terms set forth in the Confirmation; and (ii) a put option
which is the right, but not the obligation, to sell an underlying
power product as defined under Service Schedules B or C according to
the price and exercise terms set forth in the Confirmation.
4.14b Premium: The amount paid by the Purchaser of a Physically-Settled
Option to the Seller of such option by the date agreed to by the
Parties in the Confirmation.
4.14c Present Value Rate: As defined in Section 22.3(b) of this Agreement.
4.15 Purchaser: Any Party which agrees to buy or receive from one or more
of the other Parties any service pursuant to the Agreement and any
applicable Confirmation.
4.16 Qualifying Facility: A facility which is a qualifying small power
production facility or a qualifying cogeneration facility as these
terms are defined in Federal Power Act Sections 3(17)(A), 3(17)(C),
3(18)(A), and 3(18)(B); which meets the requirements set forth in 18
C.F.R. Sections 292.203-292.209; or a facility in Canada or Mexico
that complies with similar requirements.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Third Revised Sheet No. 10
Rate Schedule FERC No. 6 Superseding Second Revised Sheet No. 10
4.16a Replacement Price: The price at which the Purchaser, acting in a
commercially reasonable manner, effects a purchase of substitute
capacity and/or energy in place of the capacity and/or energy not
delivered (for energy) or made available (for capacity only) by the
Seller or, absent such a purchase, the market price for such quantity
of capacity and/or energy, as determined by the Purchaser in a
commercially reasonable manner, at the delivery point specified for
the transaction in the Confirmation.
4.16b Resale Price: The price at which the Seller, acting in a commercially
reasonable manner, effects a resale of the capacity and/or energy not
received by the Purchaser or, absent such a resale, the market price
for such quantity of capacity and/or energy, as determined by the
Seller in a commercially reasonable manner at the delivery point
specified for the transaction in a Confirmation.
4.16c Retail Entity: A retail aggregator or supplier or retail customer;
provided, however, only those Retail Entities eligible for
transmission service under the FERC's pro forma open access
transmission tariff are eligible to become members of the WSPP.
4.16d Second Party: As defined in Section 27 of this Agreement.
4.17 Seller: Any Party which agrees to sell or provide to one or more of
the other Parties any service pursuant to the Agreement and the
applicable Confirmation.
4.18 Service Schedule: A schedule of services established pursuant to
Section 6 of this Agreement on file with FERC as part of this
Agreement.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 10A
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 10A
4.18a Standard Confirmation Provisions: Provisions setting forth: Seller,
Purchaser, period of delivery, schedule, delivery rate, delivery
points, type of service (e.g. Service Schedule A, B, C or other),
contract quantity, price, transmission path (if any), date, and
certain additional information for physically settled options (option
type, option style, exercise date or period, premium, premium payout
date, and method for providing notice of exercise).
4.18b Successor in Operation: The successor entity which takes over the
wholesale electric trading operations of the first entity either
through a merger or restructuring. A Successor in Operation shall not
include an entity which merely acquires power sales contracts from the
first entity either through a purchase or other means without taking
over the wholesale electric trading operations of the first entity.
4.18c Terminated Transaction: As defined in Section 22.2 of this Agreement.
4.18d Termination Payment: As defined in Section 22.2 of this Agreement.
4.18e Trading Day: As defined in Section 38.2 of this Agreement.
4.19 Uncontrollable Forces: As defined in Section 10 of this Agreement or
in a Confirmation.
4.20 Unit Commitment Service: A capacity and/or associated scheduled energy
transaction or a Physically-Settled Option under which the Seller has
agreed to sell and the Purchaser has agreed to buy from a specified
unit(s) for a specified period, in
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Third Revised Sheet No. 11
Rate Schedule FERC No. 6 Superseding Second Revised Sheet No. 11
accordance with the Agreement, including Service Schedule B, and any
applicable Confirmation.
4.20a WSPP: The Western Systems Power Pool, Inc. a corporation organized in
1995 and duly existing under the Utah Revised Nonprofit Corporation
Act.
4.20b WSPP Default Transmission Tariff: The transmission tariff filed on
behalf of WSPP members with FERC as it may be amended from time to
time.
4.20c WSPP Homepage: WSPP's internet web site, www.wspp.org.
5. TERM, TERMINATION AND WITHDRAWAL:
5.1 This Agreement shall remain in effect until the Executive Committee,
consistent with the voting provisions of Section 8.3, votes to
terminate this Agreement and FERC accepts that termination, or FERC
otherwise terminates the Agreement.
5.2 Any Party may withdraw its participation as a member of the WSPP and
as a Party to this Agreement by providing thirty (30) days prior
written notice to
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 20043
Western Systems Power Pool First Revised Sheet No. 11A
Rate Schedule FERC No. 6 Superseding Original Sheet No. 11A
the Operating Agent and to the WSPP Homepage, and to all of its
counterparties to outstanding transactions. As of the effective date
of any withdrawal, the withdrawing Party shall have no further rights
or obligations under this Agreement
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 12
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 12
or as a member of the WSPP, except with respect to each outstanding
Confirmation, all outstanding rights and obligations arising under any
such Confirmation and this Agreement shall remain in full force and
effect as if the withdrawal had not occurred. No Party shall oppose,
before any court or regulatory agencies having jurisdiction, any other
Party's withdrawal as provided in this Section.
5.3 Except as provided for in Section 5.2, after termination, or
withdrawal with respect to the withdrawing Party, all rights to
services provided under this Agreement shall cease, and no Party shall
claim or assert any continuing right to such services thereunder.
Except as provided in Section 5.2, no Party shall be required to
provide services based in whole or in part on the existence of this
Agreement or on the provision of services under this Agreement beyond
the termination date, or date of withdrawal with respect to the
withdrawing Party. If the Parties have entered into a master
confirmation agreement only for WSPP transactions as that term is
defined in Section 32.10, the withdrawing Party shall have no further
rights under that master confirmation agreement except for
transactions that were outstanding at the time of the withdrawal.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Original Sheet No. 12A
Rate Schedule FERC No. 6
5.4 The Parties subject to FERC jurisdiction under the Federal Power Act
shall have the right to terminate their participation as a Member of
the WSPP and as Party to this Agreement and any Confirmation without
the necessity of filing with or approval by FERC, provided that such
Parties comply with the requirements of Section 5.2.
6. SERVICE SCHEDULES AND WSPP DEFAULT TRANSMISSION TARIFF:
6.1 The Parties contemplate that they may, from time to time, add or
remove Service Schedules under this Agreement. The attached Service
Schedules A through C for Economy Energy Service, Unit Commitment
Service, and Firm Capacity/Energy Sale or Exchange Service are
incorporated into and made a part of this Agreement. Nothing contained
herein shall be construed as affecting in any way the right of the
Parties to jointly make application to FERC for a change
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 13
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 13
in the rates and charges, classification, service, terms, or
conditions affecting WSPP transactions under Section 205 of the
Federal Power Act and pursuant to FERC rules and regulations
promulgated thereunder. Additional Service Schedules or amendments to
existing Service Schedules, if any, shall be adopted only by amendment
of this Agreement approved by the Executive Committee pursuant to
Section 8.3 and shall become effective on the effective date allowed
or accepted by FERC consistent with Section 39.
6.2 [RESERVED]
6.3 When the WSPP Default Transmission Tariff applies as specified in the
preamble to such Default Transmission Tariff, Transmission Service
under it shall be available both to Parties and non-Parties under this
Agreement; provided, however, each Party or non-Party must be an
eligible customer under the WSPP Default Transmission Tariff in order
to receive service.
7. ADMINISTRATION:
7.1 The WSPP shall perform the administrative tasks necessary and
appropriate to implement this Agreement. All authority to direct,
manage and administer the WSPP shall reside in the Executive
Committee. All duties assigned under this Agreement, or otherwise, to
the Operating Committee, sub-committees, officers, Administrative
Committee, or Operating Agent, are delegated powers of the Executive
Committee and are
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Original Sheet No. 13A
Rate Schedule FERC No. 6
subject to the Executive Committee's direction and control. The WSPP
may engage the services of an Operating Agent, from time to time, to
perform tasks in furtherance of this Agreement.
7.2 At least sixty (60) days prior to each calendar year that this
Agreement is in effect, the Administrative Committee shall submit a
budget for said year of operation to the Operating Committee for
review. The proposed budget shall then be submitted, with the
Operating Committee's recommendations, to the Executive Committee. The
Executive Committee may approve the budget as submitted or with
revisions. The Administrative Committee, Operating Committee, and
Executive Committee shall address any appropriate revisions of the
budget in the same manner.
Issued by: Michael E. Small, General Counsel to Effective: October 1, 2003
Western Systems Power Pool
Issued on: August 1, 2003
Western Systems Power Pool First Revised Sheet No. 14
Rate Schedule FERC No. 6 Superseding Original Sheet No. 14
7.3 The WSPP shall, as necessary, bill the Parties for costs incurred
under this Agreement on an estimated basis reasonably in advance of
when due, and such billings shall be paid by the Parties when due.
Such billings shall be adjusted in the following month(s) to reflect
recorded costs. Billing and payment of WSPP costs shall otherwise be
implemented in accordance with the provisions of Section 9.
7.4 The WSPP shall maintain the WSPP Homepage and, as it deems
appropriate, may engage a contractor for this purpose.
7.5 Each Party shall maintain a link to the WSPP Homepage and shall be
responsible for expenses related thereto.
Issued by: Michael E. Small, General Counsel to Effective: October 1, 2003
Western Systems Power Pool
Issued on: August 1, 2003
Western Systems Power Pool First Revised Sheet No. 15
Rate Schedule FERC No. 6 Superseding Original Sheet No. 15
7.6 The WSPP, at reasonable times and places, shall make available its
books of account, and records and documentation supporting
expenditures under this Agreement, for the inspection of any Party for
a period of time not to exceed two (2) years from the time such
expenditures were incurred. A Party requesting review of the WSPP's
records shall give the WSPP sufficient notice of its intent, but in no
event less than thirty (30) days. The requesting Party may perform
this review using personnel from its own staff or designate a
certified public accounting firm for the purpose of this review. All
costs incurred to perform this review shall be at the requesting
Party's own expense. The Party performing the review shall not
voluntarily release the WSPP's records or disclose any information
contained therein to any third party unless the written consent of the
WSPP and the Executive Committee has been obtained, except as required
by law.
7.7 Upon the termination of this Agreement, in accordance with applicable
law, the WSPP shall dispose of any and all of its assets and wind up
its affairs as the Executive Committee may direct.
Issued by: Michael E. Small, General Counsel to Effective: October 1, 2003
Western Systems Power Pool
Issued on: August 1, 2003
Western Systems Power Pool First Revised Sheet No. 16
Rate Schedule FERC No. 6 Superseding Original Sheet No. 16
8. EXECUTIVE AND OPERATING COMMITTEES:
As a means of securing effective and timely cooperation within the
activities hereunder and as a means of dealing on a prompt and orderly
basis with various problems which may arise in connection with system
coordination and operation under changing conditions, the Parties hereby
establish an Executive Committee and an Operating Committee.
8.1 Executive Committee:
The Executive Committee shall consist of one representative and
an alternate from each Party designated pursuant to Section 8.5
herein. The responsibilities of the Executive Committee are as
follows:
8.1.1 To establish and amend bylaws of the WSPP consistent with this
Agreement and to serve as the Board of Directors of the WSPP in
accordance with applicable law.
Issued by: Michael E. Small, General Counsel to Effective: October 1, 2003
Western Systems Power Pool
Issued on: August 1, 2003
Western Systems Power Pool Original Sheet No. 16A
Rate Schedule FERC No. 6
8.1.2 To establish sub-committees as it may from time to time deem
necessary or appropriate. Such sub-committees shall include an
Administrative Committee to administer the affairs of the WSPP as
the Executive Committee may direct or approve, which
sub-committee shall be comprised of the Chairman, Vice-Chairman,
and Secretary/Treasurer of the WSPP and the Chairman and
Vice-Chairman of the Operating Committee.
8.1.3 To review at least annually the service activities hereunder to
ensure that such activities are consistent with the spirit and
intent of this Agreement.
8.1.4 To review any unresolved issues which may arise hereunder and
endeavor to resolve the issues.
Issued by: Michael E. Small, General Counsel to Effective: October 1, 2003
Western Systems Power Pool
Issued on: August 1, 2003
Western Systems Power Pool Second Revised Sheet No. 17
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 17
8.1.5 To review and approve the WSPP's annual budget under this
Agreement, and any revision thereto, in accordance with Section
7.2 of this Agreement or otherwise as the Executive Committee
deems necessary or appropriate.
8.1.6 To amend this Agreement, from time to time, provided that no
such amendment or restatement shall be effective unless approved
or accepted by the FERC and subject to terms and conditions of
such approval or acceptance. The effectiveness of any amendment
also shall be consistent with Section 39.
8.1.7 To review and act on the application of an entity to become a
Party to this Agreement, or to delegate such authority as the
Executive Committee deems appropriate.
8.1.8 To do such other things and carry out such duties as
specifically required or authorized by this Agreement.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Original Sheet No. 17A
Rate Schedule FERC No. 6
8.1.9 To notify any Party of the rescission of its interest in this
Agreement due to its failure to continue to meet the requirements
of Section 16.1, or to delegate such authority to the Chairman of
the Executive Committee, the Chairman of the Operating Committee,
or the Administrative Committee.
8.1.10 To arrange for legal representation of the WSPP.
Issued by: Michael E. Small, General Counsel to Effective: October 1, 2003
Western Systems Power Pool
Issued on: August 1, 2003
Western Systems Power Pool First Revised Sheet No. 18
Rate Schedule FERC No. 6 Superseding Original Sheet No. 18
8.2 Operating Committee:
The Operating Committee shall consist of one representative and
an alternate from each Party designated pursuant to Section 8.5. The
responsibilities of the Operating Committee are as follows:
8.2.1 To establish, review, approve, or modify procedures and standard
practices, consistent with the provisions hereof, for the
guidance of operating employees in the Parties' electric systems
as to matters affecting transactions under this Agreement.
8.2.2 To submit to the Executive Committee any proposed revisions to
the Service Schedules or proposed additional Service Schedules.
8.2.3 To submit to the Executive Committee proposed amendments to this
Agreement, provided that the Operating Committee shall have no
authority to amend this Agreement, and further provided that the
Executive Committee may amend this Agreement under Section 8.1.6
without having first received recommendations from the Operating
Committee.
Issued by: Michael E. Small, General Counsel to Effective: October 1, 2003
Western Systems Power Pool
Issued on: August 1, 2003
Western Systems Power Pool Original Sheet No. 18A
Rate Schedule FERC No. 6
8.2.4 To establish, review, approve, or modify any scheduling or
operating procedures required in connection with transactions
under this Agreement.
8.2.5 To review and make recommendations to the Executive Committee
for approval of the annual budget of the WSPP under this
Agreement, including any proposed revisions thereto.
8.2.6 To review and recommend as necessary the types and arrangement
of equipment for intersystem communication facilities to enhance
transactions and benefits under this Agreement.
8.2.7 To monitor the administration and costs of the WSPP Homepage.
Issued by: Michael E. Small, General Counsel to Effective: October 1, 2003
Western Systems Power Pool
Issued on: August 1, 2003
Western Systems Power Pool First Revised Sheet No. 19
Rate Schedule FERC No. 6 Superseding Original Sheet No. 19
8.2.8 If the Executive Committee so directs, to review new member
applications for membership in the WSPP under this Agreement and
make recommendations on said applications to the Executive
Committee, or to delegate such authority as the Operating
Committee deems appropriate.
8.2.9 To do such other things and carry out such duties as
specifically required or authorized by this Agreement or as
directed by the Executive Committee; provided, however, that the
Operating Committee shall have no authority to amend this
Agreement.
8.3 All matters which require Operating Committee or Executive Committee
approval as provided in this Agreement shall be by no less than ninety
percent (90%) affirmative agreement of the committee members present
or voting by proxy.
8.4 Unless otherwise agreed by all committee members of the applicable
committee, the Chairman of the Executive Committee and the Chairman of
the Operating Committee shall cause all members of the applicable
committee to receive notice of a committee meeting at least ten (10)
Business Days prior to the date of the meeting. Such notice shall
include an agenda of matters to be discussed and voted on at the
meeting. All material issues to be submitted to a vote of the
committee shall appear on the agenda.
Issued by: Michael E. Small, General Counsel to Effective: October 1, 2003
Western Systems Power Pool
Issued on: August 1, 2003
Western Systems Power Pool First Revised Sheet No. 19A
Rate Schedule FERC No. 6 Superseding Original Sheet No. 19A
8.5 In accordance with Section 16.5.1, each Party shall give notice to the
other Parties and the WSPP of the name of its designated
representative and alternate representative (to act in the absence of
the designated representative) on the Executive Committee and
Operating Committee, and of any changes thereto.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 20
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 20
Each Party's designated representatives shall be authorized to act on
its behalf with respect to votes taken of committee members and other
activities of the committee.
8.6 The Executive Committee shall meet no less than once annually and
otherwise as determined by the Chairman in his discretion. The
Operating Committee shall meet as necessary, as determined by the
Chairman in his discretion. The Chairman shall call a meeting of a
committee upon the written request of not less than ten (10) members
of the applicable committee.
8.7 The Executive Committee shall elect a Chairman, Vice-Chairman, and
Secretary/Treasurer. The Operating Committee shall elect a Chairman,
Vice-Chairman, and Secretary. These officers shall serve terms of
two-years duration, which terms shall commence on January 1 of the
year following the election and expire on December 31 of the
subsequent year, provided, that despite the expiration of an officer's
term, the officer shall continue to serve until the officer's
successor is elected and commences to serve, and further provided that
with or without cause, the Executive Committee or Operating Committee,
as applicable, may elect a substitute officer prior to the expiration
of a term.
8.7.1 The Chairman of the Executive Committee shall be the Chairman of
the
Issued by: Michael E. Small, General Counsel to Effective: October 1, 2003
Western Systems Power Pool
Issued on: August 1, 2003
Western Systems Power Pool First Revised Sheet No. 20A
Rate Schedule FERC No. 6 Superseding Original Sheet No. 20A
WSPP. The Chairman shall preside over meetings of the Executive
Committee and, when the Executive Committee is not in session,
exercise day to day management and control of the business and
affairs of the WSPP, subject at all times to this Agreement and
the direction of the Executive Committee.
8.7.2 The Vice-Chairman of the Executive Committee shall be the
Vice-Chairman of the WSPP. The Vice-Chairman, in the absence or
disability of the Chairman, shall exercise the powers and perform
the duties of the Chairman and such other duties as the Executive
Committee or the Chairman may prescribe, subject at all times to
this Agreement and the direction of the Executive Committee.
8.7.3 The Secretary/Treasurer shall be the Secretary/Treasurer of the
WSPP. The Secretary/Treasurer, or his designee, shall record
minutes of meetings and actions of the Executive Committee,
perform the customary duties of a secretary and treasurer of a
non-profit corporation, and attend to the giving and serving of
all notices required by law or under this Agreement.
8.7.4. The Chairman of the Operating Committee shall preside over
Operating Committee meetings. The Vice Chairman of the Operating
Committee shall serve in the absence of the Chairman and perform
such other duties as the Operating Committee may assign. The
Secretary of the Operating Committee, or his designee, shall
record minutes of meetings and actions of the Operating
Committee, and shall give Notice of meetings.
Issued by: Michael E. Small, General Counsel to Effective: October 1, 2003
Western Systems Power Pool
Issued on: August 1, 2003
Western Systems Power Pool First Revised Sheet No. 20B
Rate Schedule FERC No. 6 Superseding Original Sheet No. 20B
9. PAYMENTS:
9.1 The accounting and billing period for transactions under this
Agreement shall be one (1) calendar month. Bills sent to any Party
shall be sent to the appropriate billing address as set forth on the
WSPP homepage or as otherwise specified by such Party.
9.2 Payments for amounts billed under this Agreement and any Confirmation
shall be received by the Party to be paid on the 20th day of the month
in which the invoice was received or the tenth (10) day after receipt
of the bill, whichever is later. Notwithstanding the foregoing,
Premiums shall be paid within three (3) Business Days of receipt of
the invoice. Payment shall be made at the location designated by the
Party to which payment is due. Payment shall be considered received
when payment is received by the Party to which Payment is due at the
location designated by that Party. If the due date falls on a
non-Business Day of either Party, then the payment shall be due on the
next following Business Day.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Original Sheet No. 20C
Rate Schedule FERC No. 6
9.3 Amounts not paid on or before the due date shall be payable with
interest calculated daily, at a rate equal to 200 basis points above
the per annum Prime Rate reported daily in the Wall Street Journal for
the period beginning on the day after the due date and ending on the
day of payment, provided that such interest shall not exceed the
amount permitted by law.
Issued by: Michael E. Small, General Counsel to Effective: October 1, 2003
Western Systems Power Pool
Issued on: August 1, 2003
Western Systems Power Pool Third Revised Sheet No. 21
Rate Schedule FERC No. 6 Superseding Second Revised Sheet No. 21
9.4 In order to dispute a bill in whole or in part, a Party must provide
written notice of the dispute to the other Party to the transaction.
Such written notice shall specify the amount in dispute and state the
basis for the dispute. In case any portion of any bill is in dispute,
the entire bill shall be paid when due. Any excess amount of bills
which, through inadvertent errors or as a result of a dispute, may
have been overpaid shall be returned by the owing Party upon
determination of the correct amount, with interest calculated in the
manner set forth in Section 9.3. A Party shall have the right to
dispute the accuracy of any bill or payment only for a period of two
(2) years from the date on which the bill was initially delivered.
9.5 If a Party's records reveal that a bill was not delivered, then the
Party may deliver to the appropriate Party a bill within two (2) years
from the date on which the bill would have been delivered under
Section 9.1 of this Agreement. The right to payment is waived with
respect to any amounts not billed within such two (2) year period.
9.6 Each Party, or any third party representative of a Party, shall keep
complete and accurate records, and shall maintain such data as may be
necessary for the purpose of ascertaining the accuracy of all relevant
data, estimates, or statements
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 21A
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 21A
of charges submitted hereunder for a period of two (2) years from the
date the bill was delivered under this Agreement and/or Confirmation.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Fourth Revised Sheet No. 22
Rate Schedule FERC No. 6 Superseding Third Revised Sheet No. 22
Within a two (2) year period from the date on which the bill was
initially delivered, any Party to the applicable transaction may
request in writing copies of the records of the other Party for that
transaction to the extent reasonably necessary to verify the accuracy
of any statement or charge. The Party from which documents or data has
been requested shall provide all reasonably requested documents and
data within a reasonable time period.
10. UNCONTROLLABLE FORCES:
No Party shall be considered to be in breach of this Agreement or any
applicable Confirmation to the extent that a failure to perform its
obligations under this Agreement or any such Confirmation is due to an
Uncontrollable Force. The term "Uncontrollable Force" means an event or
circumstance which prevents one Party from performing its obligations under
one or more transactions, which event or circumstance is not within the
reasonable control of, or the result of the negligence of, the claiming
Party, and which by the exercise of due diligence the claiming Party is
unable to avoid, cause to be avoided, or overcome. So long as the
requirements of the preceding sentence are met, an "Uncontrollable Force"
may include and is not restricted to flood, drought, earthquake, storm,
fire, lightning, epidemic, war, riot, act of terrorism, civil disturbance
or disobedience, labor dispute, labor or material shortage, sabotage,
restraint by court order or public authority, and action or nonaction by,
or failure to obtain the necessary authorizations or approvals from, any
governmental agency or authority.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 22A
Rate Schedule FERC No. 6 Superseding Original Sheet No. 22A
The following shall not be considered "Uncontrollable Forces": (i) Seller's
cost of obtaining capacity and/or energy; or (ii) Purchaser's inability due
to the price of the capacity and/or energy, to use or resell such capacity
and/or energy. No Party shall, however, be relieved of liability for
failure of performance to the extent that such failure is due to causes
arising out of its own negligence or due to removable or remediable causes
which it fails to remove or remedy within a reasonable time period. Nothing
contained herein shall be construed to require a
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 23
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 23
Party to settle any strike or labor dispute in which it may be involved.
Any Party rendered unable to fulfill any of its obligations by reason of an
Uncontrollable Force shall give prompt notice of such fact and shall
exercise due diligence, as provided above, to remove such inability within
a reasonable time period. If oral notice is provided, it shall be promptly
followed by written notice.
Notwithstanding the "due diligence" obligations or obligations to
remove or remedy the causes set forth in the foregoing paragraph (which do
not apply to this paragraph except as specified below), where the entity
providing transmission services for transactions under this Agreement and
Confirmation interrupts such transmission service, the interruption in
transmission service shall be considered an Uncontrollable Force under this
Section 10 only in the following two sets of circumstances:
(1) An interruption in transmission service shall be considered an
Uncontrollable Force if (a) the Parties agreed on a transmission path
for that transaction at the time the transaction under this Agreement
was entered into by the Parties' thereto, (b) firm transmission
involving that transmission path was obtained pursuant to a
transmission tariff or contract to effectuate the transaction under
this Agreement and Confirmation, and (c) the entity providing
transmission service curtailed or interrupted such firm transmission
pursuant to the applicable transmission tariff or contract;
(2) If the Parties did not agree on the transmission path for a
transaction at the time the transaction was entered into, an
interruption in transmission service shall be
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 24
Rate Schedule FERC No. 6 Superseding Original Sheet No. 24
considered an Uncontrollable Force only if (a) the Party contracting
for transmission services shall have made arrangements with the entity
providing transmission service for firm transmission to effectuate the
transaction under the Agreement and Confirmation, (b) the entity
providing transmission service curtailed or interrupted such
transmission service due to an event of Uncontrollable Forces or
provision of like effect, and (c) the Party which contracted for such
firm transmission services could not obtain alternate energy at the
delivery point, alternate transmission services, or alternate means of
delivering energy after exercising due diligence.
No Party shall be relieved by operation of this Section 10 of any
liability to pay for power delivered to the Purchaser or to make payments
then due or which the Party is obligated to make with respect to
performance which occurred prior to the Uncontrollable Force.
11. WAIVERS:
Any waiver at any time by any Party of its rights with respect to a
default under this Agreement or any Confirmation, or any other matter under
this Agreement, shall not be deemed a waiver with respect to any subsequent
default of the same or any other matter.
12. NOTICES:
12.1 Except for the oral notice provided for in Section 10 of this
Agreement, any formal notice, demand or request provided for in this
Agreement shall be in
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 25
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 25
writing and shall be deemed properly served, given or made if
delivered in person, or sent by either registered or certified mail
(postage prepaid), prepaid telegram, fax, or overnight delivery (with
record of receipt).
12.2 Notices and requests of a routine nature applicable to delivery or
receipt of capacity and/or energy shall be given in such manner as the
Parties to a transaction shall prescribe in a Confirmation or
otherwise; provided, however, if the Parties have not prescribed a
method of providing such routine notices, then the procedures in
Section 12.1 shall apply.
13. EFFECT OF APPROVALS:
13.1 This Agreement and all Confirmations are subject to valid laws,
orders, rules and regulations of duly constituted authorities having
jurisdiction. Nothing contained in this Agreement or any Confirmation
shall give FERC jurisdiction over those Parties not otherwise subject
to such jurisdiction or be construed as a grant of jurisdiction over
any Party by any state or federal agency not otherwise having
jurisdiction by law.
13.2 Nothing in this Agreement or any Confirmation is intended to restrict
the authority of the Bonneville Power Administration (BPA) pursuant to
applicable statutory authority to use its existing
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Original Sheet No. 25A
Rate Schedule FERC No. 6
wholesale power and transmission rates or to adopt new rates, rate
schedules, or general rate schedule provisions for application under
this Agreement and obtain
Issued by: Michael E. Small, General Counsel to Effective: September 1, 2002
Western Systems Power Pool
Issued on: July 2, 2002
Western Systems Power Pool First Revised Sheet No. 26
Rate Schedule FERC No. 6 Superseding Original Sheet No. 26
interim or final approval of those rates from FERC pursuant to Section
7 of the Pacific Northwest Electric Power Planning and Conservation
Act, 16 U.S.C. Sec. 839e, provided such rates do not exceed the
maximum rates in the applicable Service Schedule and are consistent
with the terms and conditions of said Service Schedule.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 27
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 27
13.3 Nothing contained in this Agreement or any Confirmation shall be
construed to establish any precedent for any other agreement or to
grant any rights to or impose any obligations on any Party beyond the
scope and term of this Agreement or any Confirmation.
14. TRANSFER OF INTEREST IN AGREEMENT:
No Party shall voluntarily transfer its membership in the WSPP under
this Agreement without the written consent and approval of all other
Parties except to a Successor in Operation of such Party. With regard to
the transfer of the rights and obligations of any Party associated with
transactions under this Agreement and Confirmation(s), neither Party to
such transactions may assign such rights or obligations unless (a) the
other Party provides its prior written consent which shall not be
unreasonably withheld; or (b) the assignment is to a Successor in Operation
which provides reasonable creditworthiness assurances (see Section 27 for
examples of such assurances) if required by the non-assigning Party based
upon its reasonably exercised discretion. Any successor or assignee of the
rights of any Party, whether by voluntary transfer, judicial or foreclosure
sale or otherwise, shall be subject to all the provisions and conditions of
this Agreement and Confirmation(s) (where applicable) to the same extent as
though such successor or assignee were the original Party under this
Agreement or the Confirmation(s), and no assignment or transfer of any
rights under this Agreement or any Confirmation(s)
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 27A
Rate Schedule FERC No. 6 Superseding Original Sheet No. 27A
shall be effective unless and until the assignee or transferee agrees in
writing to assume all of the obligations of the assignor or transferor and
to be bound by all of the provisions and
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 28
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 28
conditions of this Agreement and any Confirmation(s) (where applicable).
The execution of a mortgage or trust deed or a judicial or foreclosure sale
made thereunder shall not be deemed a voluntary transfer within the meaning
of this Section 14.
15. SEVERABILITY:
In the event that any of the terms, covenants or conditions of this
Agreement or any Confirmation, or the application of any such term,
covenant or condition, shall be held invalid as to any person or
circumstance by any court, regulatory agency, or other regulatory body
having jurisdiction, all other terms, covenants or conditions of this
Agreement and the Confirmation and their application shall not be affected
thereby, but shall remain in force and effect unless a court, regulatory
agency, or other regulatory body holds that the provisions are not
separable from all other provisions of this Agreement or such
Confirmation(s).
16. MEMBERSHIP:
16.1 Any Electric Utility, Retail Entity or Qualifying Facility may become
a Party to this Agreement. The Executive Committee shall notify such
Electric Utility, Retail Entity or Qualifying Facility of its decision
within sixty (60) days of a request to become a Party to this
Agreement, and any acceptable entity shall become a Party hereto by
the execution of this Agreement or a counterpart hereof, payment of
costs pursuant to Section 16.4, and concluding any necessary
acceptance or approval referred to in Section 13. Any such Party, if
it is subject to the ratemaking jurisdiction of FERC,
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 29
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 29
shall be responsible for any FERC filing necessary for it to implement
its performance under this Agreement.
16.2 Each Party shall continue to meet the requirements of Section 16.1 in
order to remain a Party to this Agreement
16.3 Being a Party to this Agreement shall not serve as a substitute for
contractual arrangements that may be needed between any Party which
operates a Control Area and any other Party which operates within that
Control Area.
16.4 Any entity that becomes a Party to this Agreement which was not a
party to the experimental Western Systems Power Pool Agreement shall
pay a one time fee of $25,000 under this Agreement in recognition of
prior efforts and costs incurred by the parties to the experimental
Western Systems Power Pool Agreement, which efforts greatly
facilitated development of this Agreement. Such fee shall be credited
to future costs of the WSPP incurred hereunder.
16.5 In addition to requirements set forth elsewhere in this Agreement
imposed on Parties as part of their membership in the WSPP, each Party
shall abide by the following requirements:
16.5.1 Each Party shall maintain updated information regarding its
Executive Committee and Operating Committee representatives on
the WSPP Homepage and shall submit changes within a reasonable
time period.
16.5.2 With regard to disputes involving transactions under this
Agreement or other agreements, no Party shall seek to conduct
discovery of the WSPP or issue or seek to obtain the issuance of
any subpoena to the WSPP or
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 29A
Rate Schedule FERC No. 6 Superseding Original Sheet No. 29A
WSPP officers acting in their capacities as officers of the WSPP
or of the WSPP's attorneys or consultants with regard to their
work for the WSPP or their opinions regarding the construction or
interpretation of any clause of the Agreement, provided that the
foregoing prohibition shall not apply in proceedings brought
against the WSPP. In the event a Party seeks to compel discovery
or testimony in violation of this Section, that Party shall be
deemed to have consented to the quashing of the subpoena or other
process providing therefor. Notwithstanding any other provision
in this Agreement, a Party that seeks to conduct discovery or
issue or seek to obtain the issuance of any subpoena in breach of
this provision shall compensate the WSPP and its officers,
attorneys, and consultants, as applicable, for all out-of-pocket
costs incurred.
16.6 An entity shall become a Party to this Agreement and a member of the
WSPP upon satisfaction of the requirements in this Section 16 and on
the date allowed by FERC if it is a FERC public utility or upon the
date of satisfaction of the requirements in this Section 16 if it is
not a FERC public utility.
17. RELATIONSHIP OF PARTIES:
17.1 Nothing contained in this Agreement or in any Confirmation shall be
construed to create an association, joint venture, trust, or
partnership, or agency relationship between or among the Parties, or
to impose a trust or partnership covenant, obligation, or liability on
or with regard to any of the Parties. Each Party shall be individually
responsible for its own covenants, obligations, and liabilities under
this Agreement and under any applicable Confirmation.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Third Revised Sheet No. 30
Rate Schedule FERC No. 6 Superseding Second Revised Sheet No. 30
17.2 All rights and obligations of the Parties under this Agreement are
several and are not joint.
18. NO DEDICATION OF FACILITIES:
Any undertaking by one Party to another Party under any provision of
this Agreement shall not constitute the dedication of the electric system
or any portion thereof of the undertaking Party to the public or to the
other Party, and it is understood and agreed that any such undertaking
under any provision of this Agreement by a Party shall cease upon the
termination of such Party's obligations under this Agreement.
19. NO RETAIL SERVICES:
Nothing contained in this Agreement shall grant any rights to or
obligate any Party to provide any services hereunder directly to or for
retail customers of any Party.
20. THIRD PARTY BENEFICIARIES:
This Agreement shall not be construed to create rights, in, or to
grant remedies to, any third party as a beneficiary of this Agreement or of
any duty, obligation or undertaking established herein except as provided
for in Section 14.
21. LIABILITY AND DAMAGES:
21.1 This Agreement contains express remedies and measures of damages in
Sections 21.3 and 22 for non-performance or default. This Agreement
also contains additional remedies to enforce payment of monies due and
to enforce terms of the Agreement and applicable Confirmations in
Section 21.2.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 30A
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 30A
ALL OTHER DAMAGES OR REMEDIES ARE HEREBY WAIVED.
Therefore, except as provided in Sections 21.3 and 22, no Party or its
directors, members of its governing bodies, officers or employees
shall be liable to any other Party or Parties for any loss or damage
to property, loss of earnings, or revenues, personal injury, or any
other direct, indirect, or consequential damages or injury, or
punitive damages, which may occur or result from the performance or
non-performance of this Agreement (including any applicable
Confirmation), including any negligence arising hereunder. Any
liability or damages incurred by an officer or employee of a Federal
agency or by that agency that would result from the operation of this
provision shall not be inconsistent with Federal law.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 31
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 31
21.2 Any Party due monies under this Agreement, the amounts of which are
not in dispute or if disputed have been the subject of a decision
awarding monies, (i) shall have the right to seek payment of such
monies in any forum having competent jurisdiction and (ii) shall
possess the right to seek relief directly from that forum without
first utilizing the mediation or arbitration provisions of this
Agreement and without exercising termination and liquidation rights
under Section 22.
In addition, each Party shall possess the right to seek specific
performance (injunctive relief) of the non-delivery related terms of
this Agreement and any Confirmation in any forum having competent
jurisdiction. In seeking to enforce the terms of this Agreement,
however, consistent with Section 21.1, no Party is entitled to receive
or recover monetary damages except as provided in Sections 21.3 and
22.
21.3 The following damages provision shall apply to all transactions under
this Agreement. For transactions under Service Schedule A, however,
this damages provision or some other damages provision will apply only
if such a damages provision is agreed to through a Confirmation. The
damages under this Section 21.3 apply to a Party's failure to deliver
or receive (or make available in the case of capacity) capacity and/or
energy in violation of the terms of the Agreement and any
Confirmation. The Contract Quantity and Contract Price referred to in
this Section
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 31A
Rate Schedule FERC No. 6 Superseding Original Sheet No. 31A
21.3 are part of the agreement between the Parties for which damages are
being calculated under this Section.
(a) If either Party fails to deliver or receive (or make available in
the case of capacity), as the case may be, the quantities of
capacity and/or energy due under the Agreement and any
Confirmation (thereby becoming a "Non-Performing Party" for the
purposes of this Section 21.3), the other party (the "Performing
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 32
Rate Schedule FERC No. 6 Superseding Original Sheet No. 32
Party") shall be entitled to receive from the Non-Performing
Party an amount calculated as follows (unless performance is
excused by Uncontrollable Forces as provided in Section 10, the
applicable Service Schedule, or by the Performing Party):
(1) If the amount the Purchaser scheduled or received in any
hour is less than the applicable hourly Contract Quantity,
then the Purchaser shall be liable for (a) the product of
the amount (whether positive or negative), if any, by which
the Contract Price differed from the Resale Price (Contract
Price - Resale Price) and the amount by which the quantity
provided to the Purchaser was less than the hourly Contract
Quantity; plus (b) the amount of transmission charge(s), if
any, for firm transmission service upstream of the delivery
point, which the Seller incurred to achieve the Resale
Price, less the reduction, if any, in transmission charge(s)
achieved as a result of the reduction in the Purchaser's
schedule or receipt of electric energy (based on Seller's
reasonable commercial efforts to achieve such reduction). If
the total amounts for all hours calculated under this
paragraph (1) are negative, then neither the Purchaser nor
the Seller shall pay any amount under this Section
21.3(a)(1).
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 33
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 33
(2) If the amount the Seller scheduled or delivered (or made
available in the case of capacity) in any hour is less than
the applicable hourly Contract Quantity, then the Seller
shall be liable for (a) the product of the amount (whether
positive or negative), if any, by which the Replacement
Price differed from the Contract Price (Replacement Price -
Contract Price) and the amount by which the quantity
provided by the Seller was less than the hourly Contract
Quantity; plus (b) the amount of transmission charge(s), if
any, for firm transmission service downstream of the
delivery point, which the Purchaser incurred to achieve the
Replacement Price, less the reduction, if any, in
transmission charge(s) achieved as a result of the reduction
in the Seller's schedule or delivery (based on Purchaser's
reasonable commercial effort to achieve such reduction). If
the total amounts for all hours calculated under this
paragraph (2) are negative, then neither the Purchaser nor
the Seller shall pay any amount under this Section
21.3(a)(2).
(3) The Non-Performing Party also shall reimburse the Performing
Party for any charges imposed on the Performing Party under
open access transmission or FERC accepted or approved
tariffs for regional organizations due to the
non-performance.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 33A
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 33A
(4) The Non-Performing Party shall pay any amount due from it
under this section within the billing period as specified in
Section 9 of this Agreement or agreed to in the applicable
Confirmation if the Parties agreed to revise the billing
period in Section 9.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 34
Rate Schedule FERC No. 6 Superseding Original Sheet No. 34
(b) The Parties agree that the amounts recoverable under this Section
21.3 are a reasonable estimate of loss and not a penalty, and
represent the sole and exclusive remedy for the Performing Party.
Such amounts are payable for the loss of bargain and the loss of
protection against future risks.
(c) Each Party agrees that it has a duty to mitigate damages in a
commercially reasonable manner to minimize any damages it may
incur as a result of the other Party's performance or
non-performance of this Agreement.
(d) In the event the Non-Performing Party disputes the calculation of
the damages under this Section 21.3, the Non-Performing Party
shall pay the full amount of the damages as required by Section 9
of this Agreement to the Performing Party. After informal dispute
resolution as required by Section 34.1, any remaining dispute
involving the calculation of the damages shall be referred to
binding dispute resolution as provided by Section 34.2 of this
Agreement. If resolution or agreement results in refunds or the
need for refunds to the Non-Performing Party, such refunds shall
be calculated in accordance with Section 9.4 of this Agreement.
22. DEFAULT OF TRANSACTIONS UNDER THIS AGREEMENT AND CONFIRMATIONS:
22.1 EVENTS OF DEFAULT
An "Event of Default" shall mean with respect to a Party ("Defaulting
Party"):
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 35
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 35
(a) the failure by the Defaulting Party to make, when due, any
payment required pursuant to this Agreement or Confirmation if
such failure is not remedied within two (2) Business Days after
written notice of such failure is given to the Defaulting Party
by the other Party ("the Non-Defaulting Party"). The
Non-Defaulting Party shall provide the notice by facsimile to the
designated contact person for the Defaulting Party and also shall
send the notice by overnight delivery to such contact person; or
(b) the failure by the Defaulting Party to provide clear and good
title as required by Section 33.3, or to have made accurate
representations and warranties as required by Section 37 and such
failure is not cured within five (5) Business Days after written
notice thereof to the Defaulting Party; or
(c) The institution, with respect to the Defaulting Party, by the
Defaulting Party or by another person or entity of a bankruptcy,
reorganization, moratorium, liquidation or similar insolvency
proceeding or other relief under any bankruptcy or insolvency law
affecting creditor's rights or a petition is presented or
instituted for its winding-up or liquidation; or
(d) The failure by the Defaulting Party to provide adequate
assurances of its ability to perform all of its outstanding
material obligations to the Non-Defaulting Party under the
Agreement or any Confirmation
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Third Revised Sheet No. 36
Rate Schedule FERC No. 6 Superseding Second Revised Sheet No. 36
pursuant to Section 27 of this Agreement or any substitute or
modified provision in any Confirmation.
(e) With respect to its Guarantor, if any:
(i) if a material representation or warranty made by a Guarantor
in connection with this Agreement, or any transaction
entered into hereunder, is false or misleading in any
material respect when made or when deemed made or repeated;
or
(ii) the failure of a Guarantor to make any payment required or
to perform any other material covenant or obligation in any
guarantee made in connection with this Agreement, including
any transaction entered into hereunder, and such failure
shall not be remedied within three (3) Business Days after
written notice; or
(iii) the institution, with respect to the Guarantor, by the
Guarantor or by another person or entity of a bankruptcy,
reorganization, moratorium, liquidation or similar
insolvency proceeding or other relief under any bankruptcy
or insolvency law affecting creditor's rights or a petition
is presented or instituted for its winding-up or
liquidation; or
(iv) the failure, without written consent of the other Party, of
a Guarantor's guarantee to be in full force and effect for
purposes of this Agreement (other than in accordance with
its terms) prior to
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Third Revised Sheet No. 36A
Rate Schedule FERC No. 6 Superseding Second Revised Sheet No. 36A
the satisfaction of all obligations of such Party under each
transaction to which such guarantee shall relate; or
(v) a Guarantor shall repudiate, disaffirm, disclaim, or reject,
in whole or in part, or challenge the validity of, any
guarantee.
22.2 REMEDIES FOR EVENTS OF DEFAULT
22.2(a) If an Event of Default shall have occurred and be continuing,
the Non-Defaulting Party, upon written notice to the Defaulting
Party, shall have the right (i) to suspend performance of
transactions under this Agreement; provided, however, (i) in no
event shall any such suspension continue for longer than ten (10)
Business Days; (ii) such suspension must include all transactions
under this Agreement in effect as of the date of the suspension
between the Defaulting Party and the Non-Defaulting Party; and
(iii) such suspension is available only once for each default.
This ten (10) day suspension period shall not affect in any way
the thirty (30) day period for exercising a right of termination
under Section 22.2(b). The Non-Defaulting Party shall have the
unilateral right to exercise its rights under this Agreement
including its termination rights at any time within the
suspension period. The Defaulting Party shall have no suspension
rights. In no event shall the suspension continue beyond the cure
of or waiver by the Non-Defaulting Party of the applicable Event
of Default. If the Non-Defaulting Party seeks to terminate the
suspension period such that the suspension shall be terminated
prior to the end of the ten (10) Business Day period specified
above, it may do so only by providing at least twenty-four (24)
hours written notice to the Defaulting Party before the
suspension may be terminated.
22.2(b) If an Event of Default occurs, the Non-Defaulting Party shall
possess the right to terminate all transactions between the
Parties under this Agreement upon written notice (by facsimile or
other reasonable means) to the Defaulting Party, such notice of
termination to be effective immediately upon receipt. If the
Non-Defaulting Party fails to exercise
Issued by: Michael E. Small, General Counsel to Effective: September 1, 2005
Western Systems Power Pool
Issued on: June 29, 2005
Western Systems Power Pool Second Revised Sheet No. 36B
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 36B
this right of termination within thirty (30) days following the
time when the Event of Default becomes known (or more than thirty
days if the Non-Defaulting and Defaulting Parties agree to an
extension), then such right of termination shall no longer be
available to the Non-Defaulting Party as a remedy for the
Event(s) of Default; provided, however, this thirty day
requirement for exercising termination rights shall not apply to
defaults pursuant to Sections 22.1(c) and 22.1(e)(iii). The
Non-Defaulting Party terminating transaction(s) under this
Section 22.2 may do so without making a filing at FERC.
If the Non-Defaulting Party elects to terminate under this
Section, it shall be required to terminate all transactions
between the Parties under the Agreement at the same time. Upon
termination, the Non-Defaulting Party shall liquidate all
transactions as soon as practicable, provided that in no event
will the Non-Defaulting Party be allowed to liquidate Service
Schedule A transactions. The payment associated with termination
("Termination Payment") shall be calculated in accordance with
this Section 22.2 and Section 22.3. The Termination Payment shall
be the sole and exclusive remedy for the Non-Defaulting Party for
each terminated transaction ("Terminated Transaction") for the
time period beginning at the time notice of termination under
this Section 22 is received. Prior to receipt
Issued by: Michael E. Small, General Counsel to Effective: September, 2005
Western Systems Power Pool
Issued on: June 29, 2005
Western Systems Power Pool First Revised Sheet No. 37
Rate Schedule FERC No. 6 Superseding Original Sheet No. 37
of such notice of termination by the Defaulting Party, the
Non-Defaulting Party may exercise any remedies available to it
under Section 21.3 of this Agreement or Confirmation(s), and any
other remedies available to it at law or otherwise.
Upon termination, the Non-Defaulting Party may withhold any
payments it owes the Defaulting Party for any obligations
incurred prior to termination under this Agreement or
Confirmation(s) until the Defaulting Party pays the Termination
Payment to the Non-Defaulting Party. The Non-Defaulting Party
shall possess the right to set-off the amount due it under this
Section 22 by any such payments due the Defaulting Party as
provided in Section 22.3(d).
22.3 LIQUIDATION CALCULATION OPTIONS
The Non-Defaulting Party shall calculate the Termination
Payment as follows:
(a) The Gains and Losses shall be determined by comparing the value
of the remaining term, transaction quantities, and transaction
prices under each Terminated Transaction had it not been
terminated to the equivalent quantities and relevant market
prices for the remaining term either quoted by a bona fide
third-party offer or which are reasonably expected to be
available in the market under a replacement contract for each
Terminated Transaction. To ascertain the market prices of a
replacement contract, the Non-Defaulting Party may consider,
among other valuations, quotations
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 38
Rate Schedule FERC No. 6 Superseding Original Sheet No. 38
from Dealers in energy contracts, any or all of the settlement
prices of the NYMEX power futures contracts (or NYMEX power
options contracts in the case of Physically-Settled Options) and
other bona fide third party offers, all adjusted for the length
of the remaining term and differences in transmission. It is
expressly agreed that the Non-Defaulting Party shall not be
required to enter into replacement transactions in order to
determine the Termination Payment.
(b) The Gains and Losses calculated under paragraph (a) shall be
discounted to present value using the Present Value Rate as of
the time of termination (to take account to the period between
the time notice of termination was effective and when such amount
would have otherwise been due pursuant to the relevant
transaction). The "Present Value Rate" shall mean the sum of
0.50% plus the yield reported on page "USD" of the Bloomberg
Financial Markets Services Screen (or, if not available, any
other nationally recognized trading screen reporting on-line
intraday trading in United States government securities) at 11:00
a.m. (New York City, New York time) for the United States
government securities having a maturity that matches the average
remaining term of the Terminated Transactions; and
(c) The Non-Defaulting Party shall set off or aggregate, as
appropriate, the Gains and Losses (as calculated in Section
22.3(a)) and Costs and notify
Issued by: Michael E. Small, General Counsel to Effective: September 1, 2002
Western Systems Power Pool
Issued on: July 2, 2002
Western Systems Power Pool Second Revised Sheet No. 39
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 39
the Defaulting Party. If the Non-Defaulting Party's aggregate
Losses and Costs exceed its aggregate Gains, the Defaulting Party
shall, within three (3) Business Days of receipt of such notice,
pay the Termination Payment to the Non-Defaulting Party, which
amount shall bear interest at the Present Value rate from the
time notice of termination was received until paid. If the
Non-Defaulting Party's aggregate Gains exceed its aggregate
Losses and Costs, the Non-Defaulting Party, after any set-off as
provided in paragraph (d), shall pay the remaining amount to the
Defaulting Party within three (3) Business Days of the date
notice of termination was received including interest at the
Present Value from the time notice of termination was received
until the Defaulting Party receives payment.
(d) The Non-Defaulting Party shall aggregate or set off, as
appropriate, at its election, any or all other amounts owing
between the Parties (discounted at the Present Value Rate) under
this Agreement and any Confirmation against the Termination
Payment so that all such amounts are aggregated and/or netted to
a single liquidated amount. The net amount due from any such
liquidation shall be paid within three (3) Business Days
following the date notice of termination is received.
(e) (i) If the Non-Defaulting Party owes the Defaulting Party monies
under this Section 22.3, then notwithstanding the three Business
Day payment requirement detailed above, the Non-Defaulting
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 39A
Rate Schedule FERC No. 6 Superseding Original Sheet No. 39A
Party may elect to pay the Defaulting Party the monies owed under
this Section 22.3 over the remaining life of the contract(s)
being terminated. The Non-Defaulting Party may make this election
by providing written notice to the Defaulting Party within three
Business Days of the notice being provided to terminate and
liquidate under this Section 22.3. The Non-Defaulting Party shall
provide the Defaulting Party with the details on the method for
recovering the monies owed over the remaining life of the
contract(s). That method shall ensure that the Defaulting Party
receives a payment each month through the end of the term of each
contract which allows it to receive the monies which would have
been due it under Sections 22.3(c) and (d) in total (to be
recovered over the term of the contract(s) to replicate as
closely as possible the payment streams under such contract(s))
provided that the discounting using the Present Value Rate
referenced in Section 22.3 (b) shall not be reflected in
determining the amounts to be recovered under this provision. Any
disputes as to the methodology shall be resolved pursuant to the
dispute resolution procedures in Section 34, with binding
arbitration pursuant to Section 34.2 required for disputes as to
the methodology if mediation is unsuccessful.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2003
Western Systems Power Pool
Issued on: December 3, 2002
Western Systems Power Pool Second Revised Sheet No. 39B
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 39B
(ii) This Section 22.3(e) and the rights and obligations under it
shall survive termination of any applicable transactions or
agreements.
(iii) The Party owed monies under this Section 22.3(e) shall have
the right to request credit assurances consistent with
Section 27 even after termination of any contract or
transaction.
(iv) If the Party owing money defaults on its payment obligations
consistent with Section 22.1(a) or defaults with regard to
providing credit assurances consistent with Section 22.1(d),
then the other Party shall have the right (by written
notice) at any time after the Party owing money defaults to
require that Party to pay all monies owed under all of the
contracts subject to this Section 22.3(e) within three
Business Days of receipt of the written notice. The monies
to be paid under this accelerated payment provision shall be
the remaining amounts to be paid under the contract(s)
reflecting a discount using the Present Value Rate from the
date of the written notice.
(f) If the Defaulting Party disagrees with the calculation of the
Termination Payment and the Parties cannot otherwise resolve
their differences, the calculation issue shall be submitted to
informal dispute resolution as provided in Section 34.1
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 40
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 40
of this Agreement and thereafter binding dispute resolution
pursuant to Section 34.2 if the informal dispute resolution does
not succeed in resolving the dispute. Pending resolution of the
dispute, the Defaulting Party shall pay the full amount of the
Termination Payment calculated by the Non-Defaulting Party within
three (3) Business Days (except if the option under 22.3(e) has
been invoked in which case the payment times in that provision
would apply) of receipt of notice as set forth in Sections
22.3(c) and (d) subject to the Non-Defaulting Party refunding,
with interest, pursuant to Section 9.4, any amounts determined to
have been overpaid.
(g) For purposes of this Section 22.3:
(i) "Gains" means the economic benefit (exclusive of Costs), if
any, resulting from the termination of the Terminated
Transactions, determined in a commercially reasonable manner
as calculated in accordance with this Section 22.3;
(ii) "Losses" means the economic loss (exclusive of Costs), if
any, resulting from the termination of the Terminated
Transactions, determined in a commercially reasonable manner
as calculated in accordance with this Section 22.3;
(iii) "Costs" means brokerage fees, commissions and other similar
transaction costs and expenses reasonably incurred in
terminating any specifically related arrangements which
replace a Terminated Transaction, transmission and ancillary
service costs associated with Terminated Transactions, and
reasonable attorneys' fees, if any, incurred in connection
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Original Sheet No. 41
Rate Schedule FERC No. 6
with the Non-Defaulting Party enforcing its rights with
regard to the Terminated Transactions. The Non-Defaulting
Party shall use reasonable efforts to mitigate or eliminate
these Costs.
(iv) In no event, however, shall a Party's Gains, Losses or Costs
include any penalties or similar charges imposed by the
Non-Defaulting Party.
22A. DEFAULT IN PAYMENT OF WSPP OPERATING COSTS:
22A.1 A Party shall be deemed to be in default in payment of its share
of WSPP operating costs pursuant to Section 7 of this Agreement,
if any, when payment is not received within ten (10) days after
receipt of written notice. A default by any Party in such payment
obligations shall be cured by payment of all overdue amounts
together with interest accrued at the rate of one percent (1%)
per month, or the maximum interest rate permitted by law, if any,
whichever is less, prorated by days from the due date to the date
the payment curing the default is made unless and until the
Executive Committee shall determine another rate.
22A.2 A defaulting Party, which is in default under Section 22.A1,
shall be liable for all costs, including costs of collection and
reasonable attorney fees, plus interest as provided in Section
22.A1 hereof.
22A.3 The rights under this Agreement of a Party which is in default
of its obligation to pay operating costs under this Agreement for
a period of three (3) months or more may be revoked by a vote of
the non-defaulting
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission,
Docket Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool First Revised Sheet No. 42
Rate Schedule FERC No. 6 Superseding Original Sheet No. 42
Parties' representatives on the Executive Committee consistent
with Section 8.3. The defaulting Party's rights shall not be
revoked, however, unless said Party has received at least thirty
(30) days written notice of the non-defaulting Parties' intent to
revoke such rights. Said notice shall state the date on which the
revocation of rights shall become effective if the default is not
cured and shall state all actions which must be taken or amounts
which must be paid to cure the default. This provision allowing
the non-defaulting Parties to revoke such rights is in addition
to any other remedies provided in this Agreement or at law and
shall in no way limit the non-defaulting Parties' ability to seek
judicial enforcement of the defaulting Party's obligations to pay
its share of the operating costs under this Agreement. Upon the
effective date of such revocation of rights, the defaulting party
shall not be allowed to enter into any new transactions under
this Agreement. The defaulting party under the Agreement and
Confirmation(s) shall be required to carry out all obligations
that existed prior to the effective date of such revocation. If a
defaulting Party's rights under this Agreement have been revoked,
the Executive Committee may restore that Party's rights upon the
defaulting Party paying all amounts due and owing under this
Agreement.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Original Sheet No. 42A
Rate Schedule FERC No. 6
22A.4 Upon revocation of the rights of a defaulting Party under this
Agreement, costs of the WSPP hereunder shall be equally shared
among the
Issued by: Michael E. Small, General Counsel to Effective: October 1, 2003
Western Systems Power Pool
Issued on: August 1, 2003
Western Systems Power Pool Second Revised Sheet No. 43
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 43
remaining Parties. Cost allocation adjustments shall be
retroactive to the date of the default.
23. OTHER AGREEMENTS:
No provision of this Agreement shall preclude any Party from entering
into other agreements or conducting transactions under existing agreements
with other Parties or third parties. This Agreement shall not be deemed to
modify or change any rights or obligations under any prior contracts or
agreements between or among any of the Parties.
24. GOVERNING LAW:
This Agreement and any Confirmation shall be governed by and construed
in accordance with the laws of the State of Utah, without regard to the
conflicts of laws rules thereof. The foregoing notwithstanding, (1) if both
the Seller and Purchaser are organized under the laws of Canada, then the
laws of the province of the Seller shall govern, or (2) if the Seller or
Purchaser is an agency of or part of the United States Government, then the
laws of the United States of America shall govern.
25. JUDGMENTS AND DETERMINATIONS:
Whenever it is provided in this Agreement that a Party shall be the
sole judge of whether, to what extent, or under what conditions it will
provide a given service, its exercise of its judgment shall be final and
not subject to challenge. Whenever it is provided that (i) a service under
a given transaction may be curtailed under certain conditions or
circumstances, the existence of which are determined by or in the judgment
of a Party, or (ii) the existence of qualifications for membership shall be
determined by
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 44
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 44
the Executive Committee pursuant to Section 16, that Party's or the
Executive Committee's determination or exercise of judgment shall be final
and not subject to challenge if it is made in good faith and not made
arbitrarily or capriciously.
26. COMPLETE AGREEMENT:
This Agreement and the Confirmation(s), shall constitute the full and
complete agreement of the Parties with respect to a transaction, except as
provided under Section 32.4.
27. CREDITWORTHINESS:
Should a Party's creditworthiness, financial responsibility, or
performance viability become unsatisfactory to the other Party in such
other Party's reasonably exercised discretion with regard to any
transaction pursuant to this Agreement and any Confirmation, the
dissatisfied Party (the "First Party") may require the other Party (the
"Second Party") to provide, at the Second Party's option (but subject to
the First Party's acceptance based upon reasonably exercised discretion),
either (1) the posting of a Letter of Credit, (2) a cash prepayment, (3)
the posting of other acceptable collateral or security by the Second Party,
(4) a Guarantee Agreement executed by a creditworthy entity; or (5) some
other mutually agreeable method of satisfying the First Party. The Second
Party's obligations under this Section 27 shall be limited to a reasonable
estimate of the damages to the First Party
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 45
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 45
(consistent with Section 22.3 of this Agreement) if the Second Party were
to fail to perform its obligations. Events which may trigger the First
Party questioning the Second Party's creditworthiness, financial
responsibility, or performance viability include, but are not limited to,
the following:
(1) The First Party has knowledge that the Second Party (or its Guarantor
if applicable) are failing to perform or defaulting under other
contracts.
(2) The Second Party has exceeded any credit or trading limit set out in
any Confirmation or other agreement between the Parties.
(3) The Second Party or its Guarantor has debt which is rated as
investment grade and that debt falls below the investment grade rating
by at least one rating agency or is below investment grade and the
rating of that debt is downgraded further by at least one rating
agency.
(4) Other material adverse changes in the Second Party's financial
condition occur.
(5) Substantial changes in market prices which materially and adversely
impact the Second Party's ability to perform under this Agreement or
any Confirmation occur.
If the Second Party fails to provide such reasonably satisfactory
assurances of its ability to perform a transaction hereunder within three
(3) Business Days of demand therefore, that will be considered an Event of
Default under Section 22 of this Agreement and the First Party shall have
the right to exercise any of the remedies provided for under
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 46
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 46
that Section 22. Nothing contained in this Section 27 shall affect any
credit agreement or arrangement, if any, between the Parties.
28. NETTING:
28.1 Parties shall net payments (associated with transactions under this
Agreement and Confirmation(s)) in accordance with Exhibit A, if such
Parties have executed the form attached as Exhibit A. The Parties'
obligations to net shall include the netting of all payments received
by the Parties in the same calendar month. Parties that have executed
Exhibit A shall provide a signed copy of
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 47
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 47
Exhibit A to a representative of the WSPP and to any Party that
requests a copy and indicate on the WSPP Homepage that they have
executed Exhibit A. If a Party indicated its election to net payments
on the WSPP Homepage and that Party desires to withdraw its agreement
to net, that Party shall provide at least 30 days notice on the WSPP
Homepage of the change in its election to net and also shall provide,
concurrent with its withdrawal notice, written notice to all Parties
with which it has ongoing transactions or with which it has committed
to future transactions under the Agreement at the time of the notice.
Any such changes in netting status shall apply beginning at least 30
days after notice required by this Section 28.2 is provided and only
shall apply to transactions agreed to beginning on or after the date
the change in netting status becomes effective.
28.2 The Parties may by separate agreement either through a Confirmation or
some other agreement set out specific terms relating to the
implementation of the netting in addition to or in lieu of Exhibit A.
28.3 Each Party reserves to itself all rights, set offs, counterclaims, and
other remedies and defenses (to the extent not expressly herein waived
or denied) which such Party has or may be entitled to arising from or
out of this Agreement and any applicable Confirmation.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 47A
Rate Schedule FERC No. 6 Superseding Original Sheet No. 47A
29. TAXES:
The Contract Price for all transactions under this Agreement shall
include full reimbursement for, and the Seller is liable for and shall pay,
or cause to be paid, or reimburse the Purchaser for if the Purchaser has
paid, all taxes applicable to a transaction that arise prior to the
delivery point. If the Purchaser is required to remit such tax, the amount
shall be deducted from any sums due to the Seller. The Seller shall
indemnify,
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 48
Rate Schedule FERC No. 6 Superseding Original Sheet No. 48
defend, and hold harmless the Purchaser from any claims for such taxes. The
Contract Price does not include reimbursement for, and the Purchaser is
liable for and shall pay, cause to be paid, or reimburse the Seller for if
the Seller has paid, all taxes applicable to a transaction arising at and
from the delivery point, including any taxes imposed or collected by a
taxing authority with jurisdiction over the Purchaser. The Purchaser shall
indemnify, defend, and hold harmless the Seller from any claims for such
taxes. Either Party, upon written request of the other Party, shall provide
a certificate of exemption or other reasonably satisfactory evidence of
exemption if either Party is exempt from taxes, and shall use reasonable
efforts to obtain and cooperate with the other Party in obtaining any
exemption from or reduction of any tax. Taxes are any amounts imposed by a
taxing authority associated with the transaction.
30. CONFIDENTIALITY:
30.1 The terms of any transaction under this Agreement or any other
information exchanged by the Purchaser and Seller relating to the
transaction shall not be disclosed to any person not employed or
retained by the Purchaser or the Seller or their affiliates, except to
the extent disclosure is (1) required by law, (2) reasonably deemed by
the disclosing Party to be required to be disclosed in connection with
a dispute between or among the Parties, or the defense of any
litigation or dispute, (3) otherwise permitted by consent of the other
Party, which consent shall not be unreasonably withheld, (4) required
to be
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2004
Western Systems Power Pool
Issued on: November 19, 2003
Western Systems Power Pool Original Sheet No. 48A
Rate Schedule FERC No. 6
made in connection with regulatory proceedings (including proceedings
relating to FERC, the United States Securities and Exchange Commission
or any other
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2004
Western Systems Power Pool
Issued on: November 19, 2003
Western Systems Power Pool First Revised Sheet No. 49
Rate Schedule FERC No. 6 Superseding Original Sheet No. 49
federal, state or provincial regulatory agency); (5) required to
comply with North American Electric Reliability Organization, regional
reliability council, or successor organization requirements; (6)
necessary to obtain transmission service; or (7) to a developer of an
index of electric power prices in accordance with Section 30.2. In the
event disclosure is made pursuant to this provision, the Parties shall
use reasonable efforts to minimize the scope of any disclosure and
have the recipients maintain the confidentiality of any documents or
confidential information covered by this provision, including, if
appropriate, seeking a protective order or similar mechanism in
connection with any disclosure. This provision shall not apply to any
information that was or is hereafter in the public domain (except as a
result of a breach of this provision).
30.2 A Party may disclose the terms of transactions under this Agreement,
excluding the identities of parties, to any developer of any index of
electric power prices without violation of the confidentiality
obligations under Section 30.1 if: (1) the disclosing Party and the
index developer have entered into a written agreement, prior to the
disclosure, under which the developer has agreed to use the
information solely for the development of an index of electric power
prices for publication and not for any other purpose; and (2) the
index with respect to which disclosure is made is an aggregation of
terms of transactions and does not identify terms of single
transactions or the identities of parties to transactions.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2004
Western Systems Power Pool
Issued on: November 19, 2003
Western Systems Power Pool Second Revised Sheet No. 49A
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 49A
31. TRANSMISSION TARIFF:
Pursuant to FERC Order No. 888, issued on April 24, 1996, and FERC
orders where applicable, the WSPP Default Transmission Tariff has been
filed and has become effective. The Parties agree to be bound by the terms
of that Tariff for so long as they are Western Systems Power Pool members.
32. TRANSACTION SPECIFIC TERMS AND ORAL AGREEMENTS:
32.1 General
32.1.1 The terms of a transaction which constitute the Confirmation
shall be made by one of the following methods: (1) a statement of
specific terms in a written Confirmation (see Exhibit C for a
sample); or (2) subject to the limitations stated in Sections
32.2 and 32.3, electronically recorded oral conversation.
Issued by: Michael E. Small, General Counsel to Effective: September 1, 2005
Western Systems Power Pool
Issued on: June 29, 2005
Western Systems Power Pool Fourth Revised Sheet No. 50
Rate Schedule FERC No. 6 Superseding Third Revised Sheet No. 50
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Third Revised Sheet No. 50A
Rate Schedule FERC No. 6 Superseding Second Revised Sheet No. 50A
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 51
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 51
32.1.2 Pursuant to the provisions of this Section 32, the Parties to a
transaction under this Agreement may agree to modify any term of
this Agreement (other than provisions regarding the operation of
the WSPP as an organization including Sections 7 and 8) which
applies to such transaction, such agreement to be stated in a
Confirmation or Confirmations.
32.2 Process For Confirming Standard Confirmation Provisions.
32.2.1 Confirmation of Standard Confirmation Provisions For
Transactions of Less Than One Week in Duration.
Confirmation for Standard Confirmation Provisions applicable to
transactions of less than one week in duration may be through an
electronically recorded oral conversation, a written Confirmation
executed by both Parties, or a Confirmation not executed by both
Parties but which is binding under Section 32.2.3.
Notwithstanding the foregoing sentence, with respect to a
transaction of less than one week in duration as agreed in an
electronically recorded conversation and that commences within
one week of that conversation, a written Confirmation document
under Section 32.2.3 shall have no effect unless it is executed
by both Parties.
32.2.2 Standard Confirmation Provisions For Transactions of One Week
or More in Duration.
Issued by: Michael E. Small, General Counsel to Effective: September 1, 2005
Western Systems Power Pool
Issued on: June 29, 2005
Western Systems Power Pool Original Sheet No. 51A
Rate Schedule FERC No. 6
Written confirmation shall be required for all Standard
Confirmation Provisions for transactions of one week or more in
duration. Such written confirmation may be made by a written
Confirmation executed by both Parties or a Confirmation not
executed by both Parties but which is binding under Section
32.2.3.
32.2.3 Written Confirmation Process for Standard Confirmation
Provisions. The Seller shall provide a proposed written
Confirmation which must be received by the Purchaser within five
Business Days of the date of the agreement to the transaction.
The Purchaser shall have five Business Days from date of receipt
to accept or propose modifications to the proposed confirmation.
If the Purchaser does not respond within that time period, the
Seller's proposed written confirmation shall be considered as
accepted and shall be the final Confirmation. If the Seller fails
to provide a proposed written Confirmation within the five
Business Days period, then, within the immediately subsequent
five Business Days, the Purchaser may submit a proposed written
Confirmation to the Seller. The Seller shall then have five
Business Days from date of receipt to accept or propose
modifications to the proposed confirmation. If the Seller does
not respond within that time period, the Purchaser's written
confirmation shall be considered as accepted and shall be the
final Confirmation.
32.3 Process for Confirming Non-Standard Confirmation Provisions.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 51B
Rate Schedule FERC No. 6 Superseding Original Sheet No. 51B
32.3.1 Non-Standard Confirmation Provisions for Transactions of Less
Than One Week in Duration. Confirmation for Non-Standard
Confirmation Provisions for a transaction of less than one week
in duration only may be through: (i) an electronically recorded
oral conversation; or (ii) in a written Confirmation executed by
both Parties.
32.3.2 Non-Standard Confirmation Provisions for Transactions of One
Week or More in Duration. Confirmation for Non-Standard
Confirmation Provisions for transactions of one week or more only
shall be through a written Confirmation executed by both Parties.
32.3.3 WSPP Agreement is a Default Agreement.
If the Parties to a transaction (i) do not reach agreement on any
proposed Non-Standard Confirmation Provision and (ii) do not
confirm it under Section 32.3.1 or 32.3.2, as applicable, then
the term or terms of the Agreement, which the Parties could not
reach agreement to modify or change or which are not considered
modified pursuant to this Section 32.3, shall apply to the
transaction.
32.4 Prior Discussions And Statements
32.4.1 A Confirmation under Section 32.2 and/or 32.3, shall, together
with this Agreement, be an integrated contract with respect to
the transaction, shall supercede all discussions and negotiations
with respect thereto, and are intended by the Parties as a final
expression of their agreement with respect to such terms as are
included therein and may not be contradicted by evidence of any
prior
Issued by: Michael E. Small, General Counsel to Effective: September 1, 2005
Western Systems Power Pool
Issued on: June 29, 2005
Western Systems Power Pool First Revised Sheet No. 51C
Rate Schedule FERC No. 6 Superseding Original Sheet No. 51C
agreement unless there is clear and convincing evidence of a
mutual mistake in the Confirmation.
32.4.2 Notwithstanding any provision in this Agreement (including
Sections 32.3.2 and 32.4.1), until the Confirmation has become
final in accordance with Sections 32.2 and/or 32.3 for a
transaction, any oral agreement of the Parties relating to such
transaction shall remain valid and binding.
32.5 The Parties agree not to contest, or assert any defense with respect
to, the validity or enforceability of any agreement to the terms
concerning a specific transaction, on the basis that documentation of
such terms fails to comply with the requirements of any statute that
agreements be written or signed. Each Party consents to the recording
by the other Party, without any further notice, of telephone
conversations between representatives of the Parties, which contain
agreements to or discussion concerning the terms of a specific
transaction. All such recordings may be introduced and admitted into
evidence for the purpose of proving agreements to terms, and any
objection to such introduction or admission for such purpose is hereby
expressly waived.
Issued by: Michael E. Small, General Counsel to Effective: September 1, 2005
Western Systems Power Pool
Issued on: June 29, 2005
Western Systems Power Pool Third Revised Sheet No. 52
Rate Schedule FERC No. 6 Superseding Second Revised Sheet No. 52
32.6 In the event of a conflict between a binding and effective
Confirmation and this Agreement, the Confirmation shall govern.
32.7 The Seller shall not be required to file any Confirmation with FERC
except as provided in the Service Schedules.
32.8 Other Products and Service Levels: The Parties may apply this
Agreement and make a Confirmation with respect to a product/service
level defined under any other document or form of agreement (e.g., the
California ISO tariff, the ERCOT agreement or the EEI agreement). The
confirmation process set forth in Section 32.3 shall apply to any such
Confirmation. Unless the Parties expressly state and agree that all
the terms and conditions of such other agreement will apply to any
such transaction consistent with Section 32.3, the transaction shall
be subject to all the terms of this Agreement, except that (1) all
service level/product definitions, (2) force majeure/uncontrollable
force definitions, and (3) other terms as mutually agreed shall have
the meaning
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 52A
Rate Schedule FERC No. 6 Superseding Original Sheet No. 52A
ascribed to them in the different agreement or in the applicable
Confirmation.
32.9 Written confirmation pursuant to this Section 32 may be provided in
electronic format, such as e-mail, so long as the Parties to the
affected transaction have agreed on the procedures and format for
doing so.
32.10 The Parties may agree to modify terms of this Agreement for more than
one transaction pursuant to a separate written agreement (a "master
confirmation agreement"), which agreement shall be considered part of
each Confirmation between the Parties and shall apply to all
transactions entered into between the two Parties unless the Parties
specifically agree to override such changes for a particular
transaction consistent with the procedure in Section 32.2 or 32.3,
whichever is applicable.
33. PERFORMANCE, TITLE, AND WARRANTIES FOR TRANSACTIONS UNDER SERVICE
SCHEDULES:
33.1 Performance
33.1.1 The Seller shall deliver to the delivery point(s) as agreed to
in the applicable Confirmation and sell to the Purchaser in
accordance with the terms of the Agreement and such Confirmation.
33.1.2 The Purchaser shall receive and purchase the Contract Quantity,
as agreed to by the Parties in the applicable Confirmation, at
the delivery point(s) and purchase from the Seller in accordance
with the terms of the Agreement and such Confirmation.
33.2 Title and Risk of Loss
Title to and risk of loss of the electric energy shall pass from
the Seller to the Purchaser at the delivery point agreed to in the
Confirmation; provided, however, with regard to federal agencies or
parts of the United States
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 20041
Western Systems Power Pool First Revised Sheet No. 53
Rate Schedule FERC No. 6 Superseding Original Sheet No. 53
Government, title to and risk of loss shall pass to Purchaser to the
extent permitted by and consistent with applicable law.
33.3 Warranties
The Seller warrants that it will transfer to the Purchaser good
title to the electric energy sold under the Agreement and any
Confirmation, free and clear of all liens, claims, and encumbrances
arising or attaching prior to the delivery point and that Seller's
sale is in compliance with all applicable laws and regulations. THE
SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
34. DISPUTE RESOLUTION:
34.1 INFORMAL DISPUTE RESOLUTION
Before binding dispute resolution or any other form of litigation
may proceed, any dispute between the Parties to a transaction under
this Agreement first shall be referred to nonbinding mediation except
for actions taken pursuant to Section 21.2. The Parties shall attempt
to agree upon a mediator from a list of ten (10) candidates provided
by the Chairman of the WSPP Operating Committee or his or her
designee. If the Parties are unable to agree, then the Chairman or the
designee shall appoint a mediator for the dispute. Neither the
mediator nor the person involved on behalf of the WSPP in developing a
list of mediators for the Parties to choose from or in selecting the
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Original Sheet No. 54
Rate Schedule FERC No. 6
mediator (if the Parties are unable to do so) shall possess a direct
or indirect interest in either Party or the subject matter of the
mediation. The WSPP shall establish procedures for the appointment of
mediators and the conduct of mediation and those procedures shall
apply to the mediation.
34.2 BINDING DISPUTE RESOLUTION
The Parties to a dispute may elect binding dispute resolution
using the following process unless binding arbitration of certain
disputes is required under this Agreement in which event the Parties
shall use the process set forth in this Section 34.2 to resolve such
disputes, unless the Parties otherwise agree:
(a) WSPP Dispute Resolution: A Party to a dispute (if binding dispute
resolution is required) or all Parties to a dispute (if agreement
of the Parties is required for binding dispute resolution) may
initiate binding dispute resolution under WSPP procedures by
notifying the Chairman of the WSPP Operating Committee or his or
her designee. The Chairman or his or her designee shall provide
the Parties with a list of ten (10) eligible arbitrators. Within
ten (10) days of receiving the list, the Parties shall agree on a
single arbitrator from the list to conduct the arbitration, or
notify the Chairman of the Operating Committee or the designee of
their inability to reach agreement. If notified of the Parties
inability to reach agreement, then the Chairman or the designee
shall choose the arbitrator from the list within five (5) days.
Neither the arbitrator nor the person
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool First Revised Sheet No. 55
Rate Schedule FERC No. 6 Superseding Original Sheet No. 55
involved on behalf of the WSPP in developing a list of
arbitrators for the Parties to choose from or in selecting the
arbitrator (if the Parties are unable to do so) shall possess a
direct or indirect interest in either Party or the subject matter
of the arbitration. The Procedures to be used for this
arbitration shall follow the arbitration procedures which shall
be developed and maintained by the WSPP and the procedures will
be generally consistent with the commercial arbitration rules of
the American Arbitration Association though not involving the
Association.
If the Parties agree to binding dispute resolution under this
Section 34.2, each Party understands that it will not be able to bring
a lawsuit concerning any dispute that may arise which is covered by
this arbitration provision. Notwithstanding the foregoing, nothing
herein is intended to waive any provision of the Federal Arbitration
Act, 9 U.S.C. Section 1, et. seq., or any right under state
statute or common law to challenge an arbitration award or to prevent
any action to enforce any arbitration award.
A Party's liability and damages under any arbitration award
resulting from the process set forth in this Section 34.2 shall be
limited as provided in this Agreement or in any Confirmation.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 56
Rate Schedule FERC No. 6 Superseding Original Sheet No. 56
34.3 COSTS
Each Party shall be responsible for its own costs and those of
its counsel and representatives. The Parties shall equally divide the
costs of the arbitrator or mediator and the hearing.
34.4 CONFIDENTIALITY
Any arbitration or mediation under this Section 34 shall be
conducted on a confidential basis and not disclosed, including any
documents or results which shall be considered confidential, unless
the Parties otherwise agree or such disclosure is required by law.
35. FORWARD CONTRACTS:
The Parties acknowledge and agree that all transactions under the
Agreement and Confirmation(s) are forward contracts and that the Parties
are forward contract merchants, as those terms are used in the United
States Bankruptcy Code. The Parties acknowledge and agree that all of their
transactions, together with this Agreement and the related Confirmation(s)
form a single, integrated agreement, and agreements and transactions are
entered into in reliance on the fact that the agreements and each
transaction form a single agreement between the Parties.
36. TRADE OPTION EXCEPTION
The Parties intend that any Physically Settled Option under this
Agreement shall qualify under the trade option exception, 17 C.F.R. Section
32.4. Accordingly, each Party buying or selling a Physically Settled Option
agrees and warrants that any such option
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 57
Rate Schedule FERC No. 6 Superseding Original Sheet No. 57
shall be offered only to a provider, user, or merchant and that the
entities entering into the options are doing so solely for purposes related
to their business.
37. ADDITIONAL REPRESENTATIONS AND WARRANTIES:
Each Party warrants and represents to the other(s) that it possesses
the necessary corporate, governmental and legal authority, right and power
to enter into and agree to the applicable Confirmation for a transaction or
transactions and to perform each and every duty imposed, and that the
Parties' agreement to buy and sell power under this Agreement and the
Confirmation represents a contract. Each Party also warrants and represents
to the other(s) that each of its representatives executing or agreeing
through a Confirmation to a transaction under this Agreement is authorized
to act on its behalf.
Each Party further warrants and represents that entering into this
Agreement and any applicable Confirmation does not violate or conflict with
its Charter, By-laws or comparable constituent document, any law applicable
to it, any order or judgment of any court or other agency of government
applicable to it or any agreement to which it is a party and that this
Agreement and applicable Confirmation, constitute a legal, valid and
binding obligation enforceable against such Party in accordance with the
terms of such agreements.
Each Party also represents that it is solvent and that on each
delivery this representation shall be deemed renewed unless notice to the
contrary is given in writing by the Purchaser to the Seller before
delivery.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Second Revised Sheet No. 58
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 58
38. FLOATING PRICES:
38.1 In the event the Parties intend that the price for a transaction is to
be based on an index, exchange or any other kind of variable reference
price (such price being a "Floating Price"), the Parties shall specify
the "Floating Price" to be used to calculate the amounts in a
Confirmation due Seller for that transaction.
38.2 Market Disruption. If a Market Disruption Event has occurred and is
continuing during the Determination Period, the Floating Price for the
affected Trading Day shall be determined as follows. The Parties shall
negotiate in good faith to agree on a Floating Price (or a method for
determining a Floating Price) for the affected Trading Day. If the
Parties have not so agreed on or before the twelfth Business Day
following the first Trading Day on which the Market Disruption Event
occurred or existed, then the Floating Price shall be determined in
good faith by the Parties based upon (1) quotes from Dealers in energy
contracts; and/or (2) quotes from Brokers in energy contracts. Each
Party may obtain up to a maximum of four quotes which must be provided
to the other Party no later than twenty-two Business Days following
the first Business Day on which the Market Disruption Event occurred
or existed. These quotes shall reflect transacted prices. The Floating
Price for the affected Trading Day shall equal a simple average of the
quotes obtained and provided by the Parties consistent with the
provisions of this Section 38. Each Party providing quote(s) to the
other Party also shall
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Original Sheet No. 58A
Rate Schedule FERC No. 6
identify to that other Party the Dealer(s) and/or the Broker(s) who
provided each of the quotes to allow verification.
"Determination Period" means each calendar month during the term of
the relevant transaction; provided that if the term of the transaction
is less than one calendar month the Determination Period shall be the
term of the transaction.
"Market Disruption Event" means, with respect to an index, any of the
following events (the existence of which shall be determined in good
faith by the Parties): (a) the failure of the index to announce or
publish information necessary for determining the Floating Price; (b)
the failure of trading to commence or the permanent discontinuation or
material suspension of trading in the relevant options contract or
commodity on the exchange or market acting as the index; (c) the
temporary or permanent discontinuance or unavailability of the index;
(d) the temporary or permanent closing of any exchange acting as the
index; or (e) a material change in the formula for or the method of
determining the Floating Price.
"Trading Day" means a day in respect of which the relevant price
source published the relevant price or would have published the
relevant price but for the Market Disruption Event.
38.3 Calculation of Floating Price. For the purposes of the calculation of
a Floating Price, all numbers shall be rounded to three (3) decimal
places. If the fourth (4th) decimal number is five (5) or greater,
then the third (3rd) decimal number shall be
Issued by: Michael E. Small, General Counsel to Effective: March 1, 2002
Western Systems Power Pool
Issued on: December 21, 2001
Western Systems Power Pool Second Revised Sheet No. 58B
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 58B
increased by one (1), and if the fourth (4th) decimal number is less
than five (5), then the third (3rd) decimal number shall remain
unchanged.
38.4 Corrections. For the purposes of determining the relevant prices for
any day, if the price published or announced on a given day and used
or to be used to determine the relevant price is subsequently
corrected and the correction is published or announced by the person
responsible for that publication or announcement, either Party may
notify the other Party of (i) that correction and (ii) the amount (if
any) that is payable as a result of that correction. If a Party gives
notice that an amount is so payable, the Party that originally either
received or retained such amount will pay such amount consistent with
the provisions of this Section 38.4. The amount that is payable as a
result of the correction shall be included in the billing cycle in
which the notice of the correction is provided.
39. AMENDMENT:
39.1 This Agreement may be amended upon the submission to FERC and
acceptance by FERC of that amendment. The effective date of the
amendment shall be the date on which FERC allows the amendment to
become effective; provided, however, if the FERC orders a hearing on a
filing under Section 205 of the Federal Power Act proposing an
amendment to this Agreement, the amendment as it may be revised by the
FERC shall not become effective until the FERC issues its final order
(i.e. its order on rehearing before any judicial review) on the
amendment. The Parties through the Executive Committee shall direct
the filing of any amendments. The Parties to this Agreement agree to
bound by this Agreement as it may be amended, provided that the
Parties possess the right to challenge any amendments at FERC and to
exercise any applicable withdrawal rights under this Agreement.
39.2 Unless otherwise stated in the amendment, all amendments shall apply
only to new transactions entered into or agreed to on or after the
effective date of the amendment. Preexisting agreements and
transactions shall operate under the
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 58C
Rate Schedule FERC No. 6 Superseding Original Sheet No. 58C
version of the WSPP Agreement effective at the time of the agreement
for the transaction unless the Parties to a transaction or
transactions mutually agree otherwise.
39.3 An agreement modifying this Agreement or a Confirmation for a
transaction needs no consideration to be binding.
40. EXECUTION BY COUNTERPARTS:
This Agreement may be executed in any number of counterparts, and upon
execution by all Parties, each executed counterpart shall have the same
force and effect as
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 59
Rate Schedule FERC No. 6 Superseding Original Sheet No. 59
an original instrument and as if all Parties had signed the same
instrument. Any signature page of this Agreement may be detached from any
counterpart of this Agreement without impairing the legal effect of any
signatures thereon, and may be attached to another counterpart of this
Agreement identical in form hereto but having attached to it one or more
signature pages.
41. WITNESS:
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representative as of the 27th day of
July, 1991 (or as of the date of execution of this Agreement by each
Party's duly authorized representation, in the case of any Party that
becomes a signatory to this Agreement subsequent to July 27, 1991).
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Issued by: Michael E. Small, General Counsel to Effective: March 1, 2002
Western Systems Power Pool
Issued on: December 21, 2001
Western Systems Power Pool First Revised Sheet No. 60
Rate Schedule FERC No. 6 Superseding Original Sheet No. 60
EXHIBIT A
NETTING [NOTE - NEED AMENDMENT.]
Each Party that executes this Exhibit A to the Agreement agrees to net
payments for transactions under the WSPP Agreement and the applicable
Confirmation(s) with any other Party or Parties which also have agreed to net
payments by executing a copy of this Exhibit A. The Party executing this Exhibit
A shall indicate below when it desires that its agreement to net becomes
effective. A Party agreeing to net under this Exhibit A shall comply with the
provisions of Section 28.2 of the Agreement. Defined terms used herein are as
defined in the WSPP Agreement. Netting shall be done in accordance with the
following provision:
If the Purchaser and Seller are each required to pay an amount on the
payment due date in the same month for transactions under the
Agreement and Confirmation(s), then such amounts with respect to each
Party will be aggregated and the Parties will discharge their
obligations to pay through netting, in which case the Party owing the
greater aggregate amount will pay to the other party the difference
between the amounts owed consistent with the payment times in Section
9.2 of the Agreement, unless the Parties have otherwise agreed to a
different payment time as allowed by the Agreement. Each Party
reserves to itself all rights, set-offs, counterclaims and other
remedies and/or defenses to which it is or may be entitled, arising
from or out of the Agreement. All outstanding payments between the
Parties which are to be netted pursuant to this Exhibit A for
transactions under WSPP Agreement and the applicable Confirmation(s)
shall be offset against each other or set off or recouped therefrom.
- ------------------------------------- ----------------------------------------
Name of Authorized Representative Effective Date for Netting
- -------------------------------------
Name of WSPP Member
- ------------------------------------- ----------------------------------------
Signature of Authorized Date of Execution
Representative
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 61
Rate Schedule FERC No. 6 Superseding Original Sheet No. 61
[WSPP SAMPLE FORM - PARTIES ARE FREE TO USE THIS OR DISREGARD IT.]
EXHIBIT B
FORM OF COUNTERPARTY GUARANTEE AGREEMENT
This Guarantee Agreement (this "Guarantee"), dated, as of [__________],
199[__], is made and entered into by [_____________], a [__________] corporation
("Guarantor").
WITNESSETH:
WHEREAS, [___________________] (the "Company") may enter into transactions
involving power sales under the Western Systems Power Pool ("WSPP Agreement")
and related Confirmation(s)(1) (collectively "Agreements") with [Company Name]
("Guaranteed Party"); and
WHEREAS, Guarantor will directly or indirectly benefit from the Agreements.
NOW THEREFORE, in consideration of the Guaranteed Party agreeing to conduct
business with Company, Guarantor hereby covenants and agrees as follows:
1. GUARANTY. Subject to the provisions hereof, Guarantor hereby irrevocably
and unconditionally guarantees the timely payment when due of the obligations of
Company (the "Obligations") to the Guaranteed Party in accordance with the
Agreements. If Company fails to pay any Obligations, Guarantor shall promptly
pay to the Guaranteed Party no later than the next Business Day (as defined in
the WSPP Agreement), after notification, the amount due in the same currency and
manner provided for in the Agreements. This Guarantee shall constitute a
guarantee of payment and not of collection. Guarantor shall have no right of
subrogation with respect to any payments it makes under this Guarantee until all
of the Obligations of Company to the Guaranteed Party are paid in full. The
liability of Guarantor under the Guarantee shall be subject to the following:
(a) Guarantor's liability hereunder shall be and is specifically
limited to payments expressly required to be made in accordance with the
Agreements (even if such payments are deemed to be damages) and, except to the
extent specifically provided in the Agreements, in no event shall Guarantor be
subject hereunder to consequential, exemplary, equitable, loss of profits,
punitive, tort, or any other even if such fees together with the payments
- ----------
(1)
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Original Sheet No. 62
Rate Schedule FERC No. 6
exceed the cap in Section 1(b), damages, costs, except that Guarantor shall be
required to pay reasonable attorney fees.
(b) The aggregate liability of the Guarantor shall not exceed [_____]
Million U.S. Dollars [___________].
2. DEMANDS AND NOTICE. If Company fails or refuses to pay any Obligations,
the Guaranteed Party may make a demand upon Guarantor (hereinafter referred to
as a "Payment Demand"). A Payment Demand shall be in writing and shall
reasonably and briefly specify in what manner and what amount Company has failed
to pay and an explanation of why such payment is due, with a specific statement
that the Guaranteed Party is calling upon Guarantor to pay under this Guarantee.
A Payment Demand satisfying the foregoing requirements shall be deemed
sufficient notice to Guarantor that it must pay the Obligations. A single
written Payment Demand shall be effective as to any specific default during the
continuance of such default, until Company or Guarantor has cured such default,
and additional Payment Demands concerning such default shall not be required
until such default is cured.
3. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants that:
(a) it is a corporation duly organized and validly existing under the
laws of the State of [_____________] and has the corporate power and authority
to execute, deliver and carry out the terms and provisions of this Guarantee;
(b) no authorization, approval, consent or order of, or registration
or filing with, any court or other governmental body having jurisdiction over
Guarantor is required on the part of Guarantor for the execution and delivery of
this Guarantee; and
(c) this Guarantee constitutes a valid and legally binding agreement
of Guarantor enforceable against Guarantor in accordance with its terms, except
as the enforceability of this Guarantee may be limited by the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and by general principles of equity.
4. EFFECT OF BANKRUPTCY BY COMPANY. The Guarantor's obligation to pay under
this Guarantee shall not be affected in any way by the institution with respect
to the Company of a bankruptcy, reorganization, moratorium or similar insolvency
proceeding or other relief under any bankruptcy or insolvency law affecting
creditor's rights or a petition for the Company's winding-up or liquidation.
5. AMENDMENT. No term or provision of this Guarantee shall be amended,
modified, altered, waived, or supplemented except in a writing signed by the
Guarantor and Guaranteed Party hereto.
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool Original Sheet No. 63
Rate Schedule FERC No. 6
6. WAIVERS. Guarantor hereby waives (a) notice of acceptance of this
Guarantee; (b) presentment and demand concerning the liabilities of Guarantor,
except as expressly hereinabove set forth; and (c) any right to require that any
action or proceeding be brought against Company or any other person, or except
as expressly hereinabove set forth, to require that the Guaranteed Party seek
enforcement of any performance against Company or any other person, prior to any
action against Guarantor under the terms hereof.
Except as to applicable statutes of limitation, no delay of the Guaranteed
Party in the exercise of, or failure to exercise, any rights hereunder shall
operate as a waiver of such rights, a waiver of any other rights or a release of
Guarantor from any obligations hereunder.
Guarantor consents to the renewal, compromise, extension, acceleration or
other changes in the time of payment of or other changes in the terms of the
Obligations, or any part thereof or any changes or modifications to the terms of
the Agreements.
Guarantor may terminate this Guarantee by providing written notice of such
termination to the Guaranteed Party and upon the effectiveness of such
termination, Guarantor shall have no further liability hereunder, except as
provided in the last sentence of this paragraph. No such termination shall be
effective until fifteen (15) Business Days after receipt by the Guaranteed Party
of such termination notice. No such termination shall affect Guarantor's
liability with respect to any obligations arising under any transaction entered
into prior to the time the termination is effective, which transaction shall
remain guaranteed pursuant to the terms of this Guarantee.
7. ASSIGNMENT. The Guarantor shall not assign this Guarantee without the
express written consent of the Guaranteed Party. The Guaranteed Party shall be
entitled to assign its rights under this Agreement in its sole discretion.
8. NOTICE. Any Payment Demand, to the Guaranteed Party or the Guarantor
notice, request, instruction, correspondence or other document to be given
hereunder by any party to another (herein collectively called "Notice") shall be
in writing and delivered personally or mailed by certified mail, postage prepaid
and return receipt requested, or by telegram or telecopier, as follows:
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool Original Sheet No. 64
Rate Schedule FERC No. 6
To [Name of Guaranteed Party] ____________________________
_______________________________
_______________________________
Attn: _________________________
Fax No.: (___) ________________
To Guarantor: _____________________________________
______________________________
______________________________
Attn: ________________________
Fax No.: (___) _______________
Notice given by personal delivery or mail shall be effective upon actual
receipt. Notice given by telegram or telecopier shall be effective upon actual
receipt if received during the recipient's normal business hours, or at the
beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. All Notices by telegram or
telecopier shall be confirmed promptly after transmission in writing by
certified mail or personal delivery. Any party may change any address to which
Notice is to be given to it by giving notice as provided above of such change of
address.
8. MISCELLANEOUS. THIS GUARANTEE SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF [State], WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS. This Guarantee shall be binding upon
Guarantor, its successors and assigns and inure to the benefit of and be
enforceable by the Guaranteed Party, its successors and assigns. The Guarantee
embodies the entire agreement and understanding between Guarantor and the
Guaranteed Party and supersedes all prior agreements and understandings relating
to the subject matter hereof. The headings in this Guarantee are for purposes of
reference only, and shall not affect the meaning hereof. This Guarantee may be
executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument.
EXECUTED as of the day and year first above written.
[____________________________]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool Second Revised Sheet No. 65
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 65
EXHIBIT C
SAMPLE FORM FOR CONFIRMATION
1. TRANSACTION SPECIFIC AGREEMENTS
The undersigned Parties agree to sell and purchase electric energy, or
a Physically-Settled Option, pursuant to the WSPP Agreement as it is
supplemented and modified below:
(a) Seller: __________________________________
(b) Purchaser: __________________________________
(c) Period of Delivery: From __\__\__ To __\__\__
(d) Schedule (Days and Hours): __________________
(e) Delivery Rate:_______________________________
(f) Delivery Point(s): __________________________
(g) Type of Service (Check as Applicable)
Service Schedule A _________
Service Schedule B _________
Service Schedule C _________
Physically-Settled Option Service Schedule B ______
Physically-Settled Option Service Schedule C ______
Other products per Section 32.6 _________________ [DESCRIBE
PRODUCT]
(h) Contract Quantity: ________ Total MWhrs.
(i) Contract or Strike Price: _____________________
(j) Transmission Path for the Transaction (If Applicable): _____________
(k) Date of Agreement if different: _____________
(l) Additional Information for Physically-Settled Options
(i) Option Type: Put __________ Call ______________
(ii) Option Style: __________
(iii) Exercise Date or Period: __________
(iv) Premium: __________
(v) Premium Payment Date: _________
(vi) Method for providing notice of exercise ________________________
(m) Special Terms and Exceptions:
See Attachment A
[Special Terms and Exceptions shall be shown on an Attachment to this
Confirmation.]
____________________________ _________________________
Name of Trader for Purchaser Name of Trader for Seller
Issued by: Michael E. Small, General Counsel to Effective: March 1, 2002
Western Systems Power Pool
Issued on: December 21, 2001
Western Systems Power Pool Original Sheet No. 66
Rate Schedule FERC No. 6
- ------------------------------------- ----------------------------------------
Authorized Signature for Authorized Signature
Purchaser for Seller
- ------------------------------------- ----------------------------------------
Date Date
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool Original Sheet No. 67
Rate Schedule FERC No. 6
EXHIBIT D
WSPP MEDIATION AND ARBITRATION PROCEDURES
I. MEDIATION
A. INFORMAL MEDIATION. WSPP members with a dispute or a potential dispute
involving transactions under the WSPP Agreement may request
non-binding, informal mediation by contacting the WSPP's General
Counsel and by providing a brief explanation in writing of the dispute
and the remedy being sought. All parties to the dispute must request
this Informal Mediation for it to become effective. After this
contact, a telephonic conference call will be arranged among the
affected WSPP members and the WSPP's General Counsel, the Chairman of
the Operating Committee, and/or some other independent and
knowledgeable person requested by the Chairman of the Operating
Committee to participate. The purpose of the conference call will be
to discuss the issues and to have an independent person or persons
state their views. Best efforts will be made to set up this conference
call within five Business Days after the WSPP's General Counsel is
contacted subject to accommodating the schedules of all involved. This
Informal Mediation shall be considered as satisfying the Mediation
requirements of Section 34.1 of the WSPP Agreement.
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool Original Sheet No. 68
Rate Schedule FERC No. 6
B. INITIATING FORMAL MEDIATION. A WSPP member which believes that it
possesses a claim against another WSPP member relating to a WSPP
transaction, which is unable to resolve the dispute through agreement
with the other member to the transaction, and which desires to pursue
that claim shall initiate non-binding formal mediation pursuant to
Section 34.1 of the WSPP Agreement. The member initiating such
mediation shall do so by Serving written notice to the Chairman of the
WSPP Operating Committee, the WSPP's General Counsel, and the other
members against which the claim is directed. Such notice shall state
the nature of the dispute, the remedy sought, and support the claim.
C. RESPONSE TO DOCUMENT INITIATING FORMAL MEDIATION. Within eight days,
the member or members against which the claim is directed may provide
a response to the notice which shall be Served on the member which
initiated the Mediation, the Chairman of the WSPP's Operating
Committee, and the WSPP's General Counsel.
D. CHOOSING THE MEDIATOR. The Mediator shall be chosen in accordance with
the procedures set forth in Section 34.1 of the WSPP Agreement. Each
Party may suggest persons to be included on the list of Mediators to
be presented to the Parties provided that these suggested persons
shall be provided to the WSPP Representative together with relevant
personal histories within two Business Days
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool Original Sheet No. 69
Rate Schedule FERC No. 6
of the date by which time the list of Mediators is to be sent out. The
WSPP Representative shall allow at least one person suggested by each
Party to be added to the list of Mediators. A brief personal history
of each person on the list of potential mediators shall be provided to
the Parties, with that history showing the person's employment over
the last five years and any other relevant facts. The WSPP
Representative shall provide the Parties with the list of Mediators
within five days of receipt of notice of the dispute. The Parties then
shall have five days in which to reach agreement on a Mediator or
inform the WSPP Representative that they were unable to reach
agreement in which event the WSPP Representative shall appoint the
Mediator consistent with Section 34.1 of the WSPP Agreement. Upon
request of the Parties for expedition, the WSPP Representative shall
use best efforts to expedite this process.
E. LOCATION FOR THE FORMAL MEDIATION. The Parties shall agree on a
location for the Mediation. If the Parties fail to reach agreement,
then the WSPP Representative shall set the location which shall be
convenient for the Parties and the Mediator.
F. TIME FOR THE FORMAL MEDIATION. The Parties shall agree on the time for
the Mediation after consultation with the Mediator if one has been
appointed. If the Parties fail to reach agreement, then the WSPP
Representative shall set the time
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool Original Sheet No. 70
Rate Schedule FERC No. 6
which shall not be more than twenty-one days after the notice
initiating the Mediation is received after consultation with the
Parties and any Mediator.
G. CONDUCT OF THE FORMAL MEDIATION. The Mediator shall have the ability
to conduct the Mediation in any manner which the Mediator believes is
appropriate to facilitate resolution of the dispute. Each Party shall
have at least one representative with the authority to settle the
dispute present at the Mediation. The Mediation shall be private and
confidential and the Mediator shall have the authority to exclude any
person not directly involved unless the Parties agree otherwise in
writing. At the Mediation, each Party shall have the right to make a
brief presentation of its case and to question the other Party. Each
Party also may be represented by counsel.
H. REPLACEMENT OF THE MEDIATOR. If the Mediator resigns, withdraws or is
no longer able to serve, then the Parties shall have two Business Days
in which to agree on a new Mediator. If the Parties are unable to
agree within such time, the WSPP Representative shall appoint a
replacement Mediator from the list used to select the first Mediator
within two Business Days after being notified that the Parties are
unable to agree. The dates and deadlines in this section may require
modification if the mediator is replaced. Any extensions shall be as
limited as possible.
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool Original Sheet No. 71
Rate Schedule FERC No. 6
II. ARBITRATION
A. INITIATING ARBITRATION. A WSPP member which initiates Arbitration
pursuant to Section 34.2 of the WSPP Agreement shall do so by Serving
the Chairman of the WSPP Operating Committee, the WSPP General Counsel
and the members against which the claim is directed with written
notice of its demand for arbitration. Such notice shall state the
nature of the dispute, the remedy sought, and support the claim.
B. RESPONSE. Within ten days of receipt of the notice, any member or
members against which the claim is directed may provide a response to
the notice. Such response must include any counterclaims which the
member believes are appropriate. If a counterclaim is submitted, then
the member which submitted the notice may respond to the counterclaim
within ten days of receipt. All such responses shall be Served on the
Parties, the Chairman of the WSPP Operating Committee, and the WSPP
General Counsel.
C. CHOOSING THE ARBITRATOR. The Arbitrator shall be chosen in accordance
with the procedures set forth in Section 34.2 of the WSPP Agreement.
Each Party may suggest persons to be included on the list of
Arbitrators to be presented to the Parties provided that these
suggested persons are provided to the WSPP Representative together
with relevant personal histories within two business days
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool Original Sheet No. 72
Rate Schedule FERC No. 6
of the date by which time the list of Arbitrators is to be sent out.
The WSPP Representative shall allow at least one person suggested by
each Party to be added to the list of potential Arbitrators. A brief
personal history of each person on the list of potential Arbitrators
shall be provided to the Parties, with that history showing the
person's employment over the last five years and any other relevant
facts. The WSPP Representative shall provide the Parties with the list
of Arbitrators within seven days of receipt of notice of the request
for Arbitration. The Parties then shall have ten days in which to
reach agreement on the Arbitrator or to inform the WSPP Representative
that they were unable to reach agreement in which event the WSPP
Representative shall appoint the Arbitrator consistent with Section
34.2 of the Agreement. Upon request of the Parties for expedition, the
WSPP Representative shall use best efforts to cause this process to be
expedited.
D. LOCATION FOR THE ARBITRATION. The Parties shall agree on a location
for the Arbitration. If the Parties fail to reach agreement, then the
WSPP Representative shall set the location which shall be convenient
for the Parties and the Arbitrator.
E. TIME FOR THE ARBITRATION. The Parties shall agree on the time for the
Arbitration and coordinate that time with the Arbitrator if one has
been agreed to or appointed. If the Parties fail to reach agreement,
then the WSPP Representative
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool Original Sheet No. 73
Rate Schedule FERC No. 6
shall set the time which shall not be more than 60 days after the
notice is received. The WSPP Representative shall set a time after
consultation with the Parties and the Arbitrator to check their
schedules.
F. DISCOVERY. After appointment of the Arbitrator, each Party shall be
entitled to obtain relevant documents from the other Parties and to
take depositions. Each Party shall respond to such a document request
within seven days of receipt of the request and make its employees or
consultants available for depositions to the extent that the employee
or consultant possesses knowledge and information relevant to the
dispute. Each Party shall disclose documents that are confidential or
commercially sensitive subject to a reasonable protective order. Any
disputes concerning discovery shall be promptly referred to the
Arbitrator who shall have authority to resolve such disputes,
including the authority to require attendance of witnesses at
depositions. The Federal Rules of Civil Procedure shall apply to
discovery under these procedures.
G. CONDUCT OF ARBITRATION IF THE PARTIES AGREE TO WAIVE AN ORAL HEARING.
If the Parties agree to waive an oral hearing, then the Parties shall
Serve Initial Briefs no later than 35 days after the notice is
received or notify the Arbitrator that they do not wish to submit any
additional documents. Parties shall Serve any Reply Briefs no later
than ten days after the date for Service of Initial Briefs.
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool Original Sheet No. 74
Rate Schedule FERC No. 6
H. CONDUCT OF THE ARBITRATION HEARING. No later than fifteen days before
any hearing, any Party may Serve an Initial Brief or notify the
Arbitrator that they do not wish to submit any additional documents. A
Party shall Serve any Reply Brief no later than five Business Days
before any hearing. The Arbitrator shall preside over any hearing and
rule on all objections including objections as to the admissibility of
evidence or whether the questioning is proper. All testimony shall be
submitted under oath. The Arbitrator is not bound to follow any
particular rules governing the conduct of the proceeding. The
Arbitrator may rely on legal advice provided through the WSPP. The
Arbitrator may require any person employed by a Party to attend and
testify at the hearing. Each Party shall possess the right to present
evidence, including witnesses, and to cross-examine other Parties'
witnesses. The Arbitration shall be private and the Arbitrator shall
have the authority to exclude any person not directly involved unless
the Parties otherwise agree. Each Party may be represented by counsel.
A stenographic record of the Arbitration shall be kept.
I. DECISION. Within ten Business Days after the end of the Arbitration
hearing, the Arbitrator shall issue his award in writing. If the
Parties waived the right to an oral hearing, then the Arbitrator shall
issue the award within ten Business Days of the last date Briefs were
to be submitted. The Arbitrator is not limited in the
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool First Revised Sheet No. 75
Rate Schedule FERC No. 6 Superseding Original Sheet No. 75
remedies he may order so long as any arbitration award is consistent
with the provisions and limitations of the WSPP Agreement and any
applicable Confirmation with respect to the liability and damages of
any Party; provided, however, upon agreement of the Parties to the
dispute, the Arbitrator's choice of remedies may be limited.
J. REPLACEMENT OF THE ARBITRATOR. If the Arbitrator resigns, withdraws,
or is no longer able to serve then the Parties shall have two Business
Days in which to agree on a new Arbitrator. If the Parties are unable
to agree within such time, the WSPP Representative shall appoint a
replacement Arbitrator from the list used to select the first
Arbitrator within two Business Days after being notified that the
Parties are unable to agree. The dates and deadlines in this section
may require modification if the mediator is replaced. Any extensions
shall be as limited as possible.
III. MISCELLANEOUS
A. CONFIDENTIALITY. Any Arbitration or Mediation shall be confidential as
provided in Section 34.4 of the WSPP Agreement.
B. COSTS. Costs shall be borne by Parties as provided in Section 34.3 of
the WSPP Agreement.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Original Sheet No. 76
Rate Schedule FERC No. 6
C. RESTRICTIONS ON LAWSUITS. Each Party shall be subject to the
restrictions provided in Section 34.2 of the WSPP Agreement.
D. ATTORNEY-CLIENT/ATTORNEY WORKPRODUCT. The Arbitrator or Mediator shall
not take any action which would result in disclosure of information in
violation of the attorney-client privilege or attorney workproduct
doctrine.
IV. DEFINITIONS
A. ARBITRATOR OR ARBITRATION. The Arbitrator appointed pursuant to these
procedures and Section 34.2 of the WSPP Agreement and the Arbitration
pursuant to these procedures and the WSPP Agreement.
B. INITIAL OR REPLY BRIEFS. Written documents submitted by the Parties to
support their positions and respond to each others positions. Such
documents shall be limited to 25 pages.
C. BUSINESS DAYS. Defined as in the WSPP Agreement.
D. MEDIATOR OR MEDIATION. The Mediator appointed pursuant to these
procedures and Section 34.1 of the WSPP Agreement and the Mediation
pursuant to these procedures and the WSPP Agreement.
E. PARTIES. The WSPP members involved in the Mediation or Arbitration
which have a direct interest in the dispute.
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool Original Sheet No. 77
Rate Schedule FERC No. 6
F. SERVICE, SERVING, OR SERVED. The method of service shall be by fax,
unless impracticable because of the size of the document. In all
events, the document should be delivered to the Party by overnight
mail. Parties also should attempt to send the document out by email if
possible. Service will be accomplished to a Party if sent to the
Party's contact person for the disputed transaction. If there are
multiple contact persons for one Party, service to one such person
shall suffice. Service shall be to those individuals or entities
specified in this procedures, but must include service to the Parties,
the Mediator or Arbitrator (if either has been appointed), and to the
WSPP General Counsel.
G. WSPP REPRESENTATIVE. The Chairman of the WSPP Operating Committee or
his or her designee for the purposes of the Arbitration or Mediation.
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool First Revised Sheet No. 78
Rate Schedule FERC No. 6 Superseding Original Sheet No. 78
SERVICE SCHEDULE A
ECONOMY ENERGY SERVICE
A-1 PARTIES:
This Service Schedule is agreed upon as a part of this Agreement by the
Parties.
A-2 PURPOSE:
The purpose of this Service Schedule is to define additional specific
procedures, terms and conditions for requesting and providing Economy
Energy Service.
A-3 TERMS:
A-3.1 A Party may schedule Economy Energy Service from another Party by
mutual agreement; provided, however, that each Party shall be the sole
judge as to the extent to and the conditions under which it is willing
to provide or receive such service hereunder consistent with statutory
requirements and contractual commitments including the Agreement and
any applicable Confirmation.
A-3.2 Scheduling of Economy Energy Service hereunder shall be a
responsibility of the Parties involved.
A-3.3 Each Seller/Purchaser may prepare a daily estimate of the amount of
Economy Energy Service that it is willing and able to sell/buy each
hour and the associated hourly sale/purchase price for the next
Business Day, plus the weekend and
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Original Sheet No. 79
Rate Schedule FERC No. 6
holidays, and communicate this information to all other Parties via
the Hub.
A-3.4 Purchasers shall arrange purchases directly with Sellers, and shall
be responsible for transmission arrangements.
A-3.5 Unless otherwise mutually agreed between the Purchaser and the
Seller, all Economy Energy Service transactions shall be
pre-scheduled, and billings shall be based on amounts and prices
agreed to in advance by schedulers, subject to Paragraphs A-3.6 and
3.7 and subject to change by mutual agreement between dispatchers or
schedulers due to system changes.
A-3.6 The price for Economy Energy Service shall be mutually agreed to in
advance between Seller and Purchaser and shall not be subject to the
rate caps specified in Section A-3.7 in either of the following two
circumstances:
(1) where the Seller is a FERC regulated public utility and that
Seller has been authorized to sell power like that provided for
under this Service Schedule at market-based rates; or
(2) where the Seller is not a FERC regulated public utility.
A Party is a FERC regulated public utility if it is a "public utility"
as defined in Section 201(e) of the Federal Power Act, 16 U.S.C.
Section 824(e).
A-3.7 Except as provided for in Section A-3.6, the price shall not exceed
the Seller's forecasted Incremental Cost plus up to: $7.32/kW/ month;
$1.68/kW/week;
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool Original Sheet No. 80
Rate Schedule FERC No. 6
33.78 cent(s)/kW/day; 14.07 mills/kWh; or 21.11 mills/kWh for service
of sixteen (16) hours or less per day. The hourly rate is capped at
the Seller's forecasted Incremental Cost plus 33.78 cent(s)/kW/ day.
The total demand charge revenues in any consecutive seven-day period
shall not exceed the product of the weekly rate and the highest demand
experienced on any day in the seven-day period. In lieu of payment,
such Parties may mutually agree to exchange economy energy at a ratio
not to exceed that ratio provided for in Section C-3.7 of Service
Schedule C. The Seller's forecasted Incremental Cost discussed above
also may include any transmission and/or ancillary service costs
associated with the sale, including the cost of any transmission
and/or ancillary services that the Seller must take on its own system.
Any such transmission and/or ancillary services charges shall be
separately identified by the Seller to the Purchaser for transactions
under this Schedule including the exchange of economy energy. The
transmission and ancillary service rate ceilings shall be available
through the WSPP's Hub or homepage. Any such transmission services
(and ancillary service provided in conjunction with such transmission
service) by Seller shall be provided pursuant to any applicable
transmission tariff or agreement, and the rates therefore shall be
consistent with such tariff or agreement.
A-3.8 Unless otherwise agreed, the Purchaser shall be responsible for
maintaining
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool First Revised Sheet No. 81
Rate Schedule FERC No. 6 Superseding Original Sheet No. 81
operating reserve requirements as back-up for Economy Energy Service
purchased and the Seller shall not be required to maintain such
operating reserve.
A-3.9 Each Party that is a FERC regulated public utility as defined in
A-3.6 shall file the Confirmation with FERC for each transaction under
this Service Schedule with a term in excess of one year no later than
30 days after service begins if that Party would have been required to
file such Confirmation or similar agreements with FERC under an
applicable FERC accepted market based rate schedule.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 82
Rate Schedule FERC No. 6 Superseding Original Sheet No. 82
SERVICE SCHEDULE B
UNIT COMMITMENT SERVICE
B-1 PARTIES:
This Service Schedule is agreed upon as part of this Agreement by the
Parties.
B-2 PURPOSE:
The purpose of this Service Schedule is to define additional specific
procedures, terms, and conditions for requesting and providing Unit
Commitment Service.
B-3 TERMS:
B-3.1 A Party may schedule Unit Commitment Service from another Party by
mutual agreement; provided, however, that each Party shall be the sole
judge as to the extent to and the conditions under which it is willing
to provide or receive such service hereunder consistent with statutory
requirements and contractual commitments including the Agreement and
any applicable Confirmation. Once an agreement is reached, then the
obligation for Unit Commitment Service becomes a firm commitment, for
both Parties, for the agreed capacity and terms.
B-3.2 Unless otherwise mutually agreed by the Parties involved in a Unit
Commitment Service transaction, the terms set forth in this Service
Schedule B shall govern such transaction.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Original Sheet No. 83
Rate Schedule FERC No. 6
B-3.3 Unless otherwise agreed between the Purchaser and the Seller, all
transactions shall be prescheduled, subject to any conditions agreed
to by schedulers, for a specified unit for a specified period of time.
B-3.4 Purchasers shall arrange purchases directly with Sellers.
B-3.5 The price for Unit Commitment Service shall be mutually agreed to in
advance between Seller and Purchaser and shall not be subject to the
rate caps specified in Section B-3.6 in either of the following two
circumstances:
(1) where the Seller is a FERC regulated public utility and that
Seller has been authorized to sell power like that provided for
under this Service Schedule at market-based rates; or
(2) where the Seller is not a FERC regulated public utility.
A Party is a FERC regulated public utility if it is a "public
utility" as defined in Section 201(e) of the Federal Power Act, 16
U.S.C. Section 824(e).
B-3.6 Except as provided for in Section B-3.5, the price shall not exceed
the Seller's forecasted Incremental Cost plus up to: $7.32/kW/month;
$1.68/kW/week; 33.78 cent(s)/kW/day; 14.07 mills/kWh; or 21.11
mills/kWh for service of sixteen (16) hours or less per day. The
hourly rate is capped at the Seller's forecasted Incremental Cost plus
33.78 cent(s)/kW/day. The total demand charge revenues in any
consecutive seven-day period shall not exceed the product of the
weekly rate and the
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool Original Sheet No. 84
Rate Schedule FERC No. 6
highest demand experienced on any day in the seven-day period. The
Seller's forecasted Incremental Cost discussed above also may include
any transmission and/or ancillary service costs associated with the
sale, including the cost of any transmission and/or ancillary services
that the Seller must take on its own system. Any such transmission
and/or ancillary service charges shall be separately identified by the
Seller to the Purchaser. The transmission and ancillary service rate
ceilings shall be available through the WSPP's Hub or homepage.
B-3.7 Start-up costs and no-load costs if included by the Seller shall be
stated separately in the price.
B-3.8 Energy schedules for the Purchaser's share of a unit may be modified
by the Purchaser with not less than a thirty (30) minute notice before
the hour in which the change is to take place, unless otherwise
mutually agreed or unforeseen system operating conditions occur.
B-3.9 Unit Commitment Service is intended to have assured availability;
however, scheduled energy deliveries may be interrupted or curtailed
as follows:
(a) By the Seller by giving proper recall notice to the Purchaser if
the Seller and the Purchaser have mutually agreed to recall
provisions,
(b) By the Seller when all or a portion of the output of the unit is
unavailable, by an amount in proportion to the amount of the
reduction in the output of the
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool First Revised Sheet No. 85
Rate Schedule FERC No. 6 Superseding Original Sheet No. 85
unit, unless otherwise agreed by the schedulers,
(c) By the Seller to prevent system separation during an emergency,
provided the Seller has exercised all prudent operating
alternatives prior to the interruption or curtailment,
(d) Where applicable, by the Seller to meet its public utility or
statutory obligations to its customers, or
(e) By either the Seller or the Purchaser due to the unavailability
of transmission capacity necessary for the delivery of scheduled
energy.
B-3.10 Each Party that is a FERC regulated public utility as defined above
in B-3.5 shall file the Confirmation with FERC for each transaction
under this Service Schedule with a term in excess of one year no later
than 30 days after service begins if that Party would have been
required to file such Confirmation or similar agreements with FERC
under an applicable FERC accepted market based rate schedule.
B-4 BILLING AND PAYMENT PROVISIONS:
B-4.1 Except as provided in Sections B-4.2 and B-5, billing for Unit
Commitment Service shall be computed based upon the agreed upon
prices.
B-4.2 In the event the Seller requests recall of Unit Commitment Service in
a shorter time frame than was mutually agreed pursuant to Section
B-3.9(a) and the
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Original Sheet No. 86
Rate Schedule FERC No. 6
Purchaser agrees to allow such recall, the Purchaser shall be relieved
of any obligation to pay start-up costs.
B-5 TERMINATION PROVISION:
In the event Unit Commitment Service is curtailed or interrupted except as
provided in Section B-3.9(a), the Purchaser shall have the option to cancel
the Unit Commitment Service at any time by paying the Seller for (i) all
energy deliveries scheduled up to the notice of termination and (ii) all
separately stated start-up and no-load costs.
Issued by: Michael E. Small, General Counsel to Effective: July 1, 2000
Western Systems Power Pool
Issued on: September 29, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool Second Revised Sheet No. 87
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 87
SERVICE SCHEDULE C
FIRM CAPACITY/ENERGY SALE OR EXCHANGE SERVICE
C-1 PARTIES:
This Service Schedule is agreed upon as a part of this Agreement by the
Parties.
C-2 PURPOSE:
The purpose of this Service Schedule is to define additional specific
procedures, terms, and conditions for requesting and providing Firm
Capacity/Energy Sale or Exchange Service.
C-3 TERMS:
C-3.1 A Party may schedule Firm Capacity/Energy Sale or Exchange Service
from another Party by mutual agreement; provided, however, that each
Party shall be the sole judge as to the extent to and the conditions
under which it is willing to provide or receive such service hereunder
consistent with statutory requirements and contractual commitments
including the Agreement and any applicable Confirmation. Once an
agreement is reached, then the obligation for Firm Capacity/Energy
Sale or Exchange Service becomes a firm commitment, for both Parties,
for the agreed service and terms.
C-3.2 Unless otherwise agreed between the Purchaser and the Seller, all
transactions shall be prescheduled, subject to any conditions agreed
to by schedulers.
C-3.3 Firm capacity transactions shall include buying, selling, or
exchanging capacity between Parties with or without associated energy.
Firm capacity is deemed a capacity sale from the Seller's resources
and backed by the Seller's
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool First Revised Sheet No. 88
Rate Schedule FERC No. 6 Superseding Original Sheet No. 88
capacity reserves.
C-3.4 Firm energy transactions shall include buying, selling, or exchanging
firm energy between Parties. Subject to mutual agreement, firm energy
is deemed a quantity of energy the Seller has agreed to sell and
deliver and the Purchaser has agreed to buy within a specified time
period.
C-3.5 Purchaser shall arrange purchases directly with Sellers.
C-3.6 The price for Firm Capacity/Energy Sale or Exchange Service shall be
mutually agreed to in advance between Seller and Purchaser and shall
not be subject to the rate caps specified in Section C-3.7 in either
of the following two circumstances:
(1) where the Seller is a FERC regulated public utility and that
Seller has been authorized to sell power like that provided for
under this Service Schedule at market-based rates; or
(2) where the Seller is not a FERC regulated public utility.
A Party is a FERC regulated public utility if it is a "public utility"
as defined in Section 201(e) of the Federal Power Act, 16 U.S.C.
Section 824(e).
C-3.7 Except as provided for in Section C-3.6, the price shall not exceed
the Seller's forecasted Incremental Cost plus up to: $7.32/kW/month;
$1.68/kW/week; 33.78 cent(s)/kW/day; 14.07 mills/kWh; or 21.11
mills/kWh for service of sixteen (16) hours or less per day. The
hourly rate is capped at the Seller's forecasted Incremental Cost plus
33.78 cent(s)/kW/day. The total demand charge revenues in any
consecutive seven-day period shall not exceed the product of the
weekly rate and the
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2001
Western Systems Power Pool
Issued on: December 1, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool Second Revised Sheet No. 89
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 89
highest demand experienced on any day in the seven-day period.
Exchange ratios among such Parties shall be as mutually agreed between
the Purchaser and the Seller, but shall not exceed the ratio of 1.5 to
1.0. The Seller's forecasted Incremental Cost discussed above also may
include any transmission and/or ancillary service costs associated
with the sale, including the cost of any transmission and/or ancillary
services that the Seller must take on its own system. Any such
transmission and/or ancillary service charges shall be separately
identified by the Seller to the Purchaser for transactions under this
Schedule including exchanges. The transmission and ancillary service
rate ceiling shall be available through the WSPP's Hub or homepage.
Any such transmission service (and ancillary services provided in
conjunction with such transmission service) by Seller shall be
provided pursuant to any applicable transmission tariff or agreement,
and the rates therefore shall be consistent with such tariff or
agreement.
C-3.8 Firm Capacity/Energy Sale or Exchange Service shall be interruptible
only if the interruption is: (a) within the recall time or allowed by
other applicable provisions governing interruptions of service under
this Service Schedule mutually agreed to by the Seller and the
Purchaser, (b) due to an Uncontrollable Force as provided in Section
10 of this Agreement; or (c) where applicable, to meet Seller's public
utility or statutory obligations to its customers. If service under
this Service Schedule is interrupted under Section C-3.8(a) or (b),
neither Seller nor Purchaser shall be obligated to pay any damages
under this Agreement or Confirmation. If service under this Service
Schedule is interrupted for any reason
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Original Sheet No. 89A
Rate Schedule FERC No. 6
other than pursuant to Section C-3.8(a) or (b), the Non-Performing
Party shall be responsible for payment of damages as provided in
Section 21.3 of this Agreement or in any Confirmation.
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2001
Western Systems Power Pool
Issued on: December 1, 2000
Filed to comply with order of the Federal Energy Regulatory Commission, Docket
Nos. ER00-3338, et al., issued September 15, 2000.
Western Systems Power Pool Second Revised Sheet No. 90
Rate Schedule FERC No. 6 Superseding First Revised Sheet No. 90
C-3.9 Each Party that is a FERC regulated public utility as defined in
Section C-3.6 shall file the Confirmation with FERC for each
transaction under this Service Schedule with a term in excess of one
year no later than 30 days after service begins if that Party would
have been required to file such Confirmation or similar agreements
with FERC under an applicable FERC accepted market based rate
schedule.
C-3.10 Seller shall be responsible for ensuring that Service Schedule C
transactions are scheduled as firm power consistent with the most
recent rules adopted by the applicable NERC regional reliability
council.
Wspp/Sept 05 Effective Amendments Redlined(filed 6-29-05)
Issued by: Michael E. Small, General Counsel to Effective: February 1, 2005
Western Systems Power Pool
Issued on: November 30, 2004
Western Systems Power Pool Third Revised Sheet No. 91
Rate Schedule FERC No. 6 Superseding Second Revised Sheet No. 91
LIST OF MEMBERS
ACN Power, Inc.
Allegheny Energy Supply Co., LLC
Amerada Hess Corporation
Ameren Energy Generating Company
Ameren Energy Marketing Company
American Electric Power Service
Corporation as agent for Ohio Power
Company, Public Service Company of
Oklahoma and Southwestern Electric
Power Company
APS Energy Services Company, Inc.
Aquila Merchant Services, Inc.
Aquila Networks Canada (British Columbia)
Ltd.
Aquila, Inc. (also UtiliCorp United-Kansas,
UtiliCorp United-Missouri, and St.
Joseph Light & Power)
Arizona Electric Power Coop.
Arizona Public Service Co.
Arkansas Electric Coop. Corp.
Associated Electric Cooperative, Inc.
Astra Oil Company, Inc.
ATCO Power Canada, Ltd.
Avista Corporation
Avista Energy, Inc.
Basin Electric Power Cooperative
Benton Public Utility District No. 1
of Benton County
BioConverter Park Bradley, LLC
Black Hills Generation, Inc.
Black Hills Power Inc.
Bonneville Power Adm.
BP Energy Company
Brascan Energy Marketing Inc.
Burbank, City of
Calif. Dept. of Water Resources (also
California Energy Resources Scheduler &
CCHG)
Calpine Energy Management, L.P.
Calpine Energy Services, L.P.
Calpine Northbrook Energy Marketing, LLC
Candela Energy Corporation
Cargill Power Markets, LLC
Cheyenne Light, Fuel and Power Co.
Cinergy Capital & Trading, Inc.
Cinergy Operating Companies (also
Cincinnati Gas & Electric Co., PSI
Energy, Inc.)
Citadel Energy Products LLC
Citigroup Energy Inc.
City of Anaheim, Public Utilities Dept.
City of Azusa
City of BanningCity of Glendale Water &
Power Dept.
City of Independence
City of Klamath Falls
City of Palo Alto
City of Riverside, California
City of Santa Clara Electric Department
City of Sikeston, Board of Municipal
Utilities
City Utilities of Springfield, Missouri
City Water & Light (Jonesboro, AR)
Clatskanie PUD
Cleco Marketing & Trading LLC
Cleco Utility Group, Inc.
CMS Marketing, Services and Trading
Company
CNG Power Services Corp.
Colorado River Commission of Nevada
Colorado Springs Utilities
Colton, City of
Columbia Energy Power Marketing
Columbia Power Corporation
Comision Federal de Electricidad
Commonwealth Energy Corporation
ConAgra Trade Group, Inc.
Conectiv Energy Supply, Inc.
ConocoPhillips Co.
Constellation NewEnergy, Inc.
Constellation Power Source
Cook Inlet Energy Supply
Issued by: Michael E. Small, General Counsel to Effective: October 18, 2004
Western Systems Power Pool
Issued on: October 18, 2004
Western Systems Power Pool Fourth Revised Sheet No. 92
Rate Schedule FERC No. 6 Superseding Third Revised Sheet No. 92
Coral Power, L.L.C.
Deseret G&T
Direct Energy Marketing, Inc.
Dominion Energy Marketing, Inc.
DTE Energy Trading, Inc.
Duke Energy Marketing America, LLC
Duke Energy Trading & Marketing, LLC
Duke Power
Duke Solutions, Inc.
Duke/Louis Dreyfuss, LLC
Dynegy Power Marketing, Inc.
Dynegy Power Services, Inc.
E prime
Eagle Energy Partners I, L.P.
Edison Mission Marketing & Trading, Inc.
El Paso Electric
El Paso Merchant Energy, L.P. (also Coastal
Merchant Electric)
Empire District Electric Co.
Energy Transfer Group, LLC
EnerZ Corporation
Engage Energy America LLC
Engelhard Power Marketing, Inc.
ENMAX Energy Corporation
ENMAX Energy Marketing Inc.
Enron Power Marketing, Inc.
Enserco Energy Inc.
Entergy Power, Inc.
Entergy Services, Inc. (also Entergy
Arkansas, Inc., Entergy Gulf States, Inc.,
Entergy Louisiana, Inc., Entergy
Mississippi, Inc., Entergy New Orleans,
Inc.)
Entergy-Koch Trading, LP
EPCOR Merchant and Capital (US) Inc.
Equitable Power Services Co.
Eugene Water & Electric Board
Exelon Generation Company, LLC
Farmington, City of
Federal Energy Sales, Inc.
FPL Energy Power Marketing Inc.
Golden Spread Electric Cooperative
Grand River Dam Authority
Hafslund Energy Trading, LLC
Harquahala Generating Company, LLC
Hetch-Hetchy Water & Power
Hinson Power Co., LLC
Howard Energy Co., Inc.
IDACORP Energy L.P.
Idaho Falls Power
Idaho Power Company
IGI Resources, Inc.
Illinova Energy Partners, Inc.
Imperial Irrigation District
Industrial Energy Applications, Inc.
Innovative Technical Services, LLC
InterCoast Power Marketing
J. Aron & Company
KAMO Electric Cooperative, Inc.
Kansas City Board of Public Utilities
Kansas City Power & Light
KN Energy Marketing
La Paloma Generating Company, LLC
Lafayette Utilities System
Las Vegas Cogeneration II, L.L.C.
LG&E Energy Marketing Inc.
Lincoln Electric System
Los Alamos County
Los Angeles Dept. of Water & Power
Louisiana Energy and Power Authority
Louisiana Generating LLC
Louisville Gas & Electric Company
Mason County PUD No. 3
McMinnville Water & Light
Merrill Lynch Capital Services, Inc.
Merrill Lynch Commodities, Inc.
Metropolitan Water District
MidAmerican Energy Company
MidCon Power Services Corp.
MIECO, Inc.
Mirant Americas Energy Marketing, LP
Missouri Joint Municipal Electric Utility
Comm.
Modesto Irrigation District
Morgan Stanley Capital Group, Inc.
M-S-R Public Power Agency
Municipal Energy Agency of Mississippi
Issued by: Michael E. Small, General Counsel to Effective: October 22, 2004
Western Systems Power Pool
Issued on: November 22, 2004
Western Systems Power Pool Fifteenth Revised Sheet No. 93
Rate Schedule FERC No. 6 Superseding Fourteenth Revised Sheet No. 93
Municipal Energy Agency of Nebraska
Nebraska Public Power District
NEGT, Energy Trading - Power, L.P.
Nevada Power Co.
New West Energy
Northern California Power Agency
Northern States Power Company
NorthPoint Energy Solutions Inc.
NorthWestern Corporation
NP Energy Inc.
NRG Power Marketing Inc.
Occidental Power Services, Inc.
OGE Energy Resources, Inc.
Oklahoma Gas & Electric
Oklahoma Municipal Power Authority
Omaha Public Power District
ONEOK Energy Marketing and Trading
Company, L.P.
Ontario Power Generation, Inc.
Otter Tail Power Company
Pacific Gas & Electric Co.
PacifiCorp
Panda Gila River, L.P.
Pasadena, City of
PG&E Energy Services
PG&E Energy Trading - Power, L.P.
Phibro Inc.
Pinnacle West Capital Corporation
Plains Elec. Gen. & Trans. Coop. Inc.
Platte River Power Authority
PNGC Power
Port of Oakland
Portland General Electric Co.
Power Exchange Corporation
Powerex Corp.
PPL Electric Utilities Corporation
PPL EnergyPlus, LLC
PPL Montana, LLC
PPM Energy, Inc.
Progress Ventures, Inc.
PSEG Energy Resources & Trade LLC
Public Service Co. of NM
Public Service Co. of Colorado
Public Util. Dist. No. 1 of Douglas Cty.
Public Util. Dist. No. 1 of Franklin Cty.
Public Util. Dist. No. 1 of Okanogan Cty.
PUD No. 1 of Chelan County
PUD No. 1 of Grays Harbor County
PUD No. 1 of Snohomish County
PUD No. 2 of Grant County
Puget Sound Energy
QST Energy Trading Inc.
Questar Energy Trading
Rainbow Energy Marketing Corporation
Rainy River Energy Corporation
Redding, City of
Reliant Energy Services, Inc.
Rocky Mountain Generation Coop., Inc.
Roseville Electric
RWE Trading Americas Inc. Americas
Sacramento Municipal Utility District
Salt River Project Agricultural Improvement
and Power District
San Diego Gas & Electric Co.
Seattle City Light
Select Energy, Inc.
Sempra Energy Resources
Sempra Energy Solutions
Sempra Energy Trading Corp.
Sierra Pacific Power Co.
South Point Energy Center LLC
Southern Calif. Edison Co.
Southern California Water Company
Southern Company Services, Inc., as agent
for Alabama Power Company, Georgia
Power Company, Gulf Power Company,
Mississippi Power Company, Savannah
Electric & Power Company and Southern
Power Company
Southern Illinois Power Cooperative
Southern Nevada Water Authority
Southwest Power Administration
Southwestern Public Service Company
Split Rock Energy LLC
Statoil Energy Trading, Inc.
Strategic Energy LLC
Sunflower Electric Power Corp.
Issued by: Michael E. Small, General Counsel to Effective: July 29, 2004
Western Systems Power Pool
Issued on: July 29, 2004
Western Systems Power Pool Thirteenth Revised Sheet No. 94
Rate Schedule FERC No. 6 Superseding Twelfth Revised Sheet No. 94
Tacoma Power
Teck Cominco Metals Ltd.
TECO EnergySource, Inc.
Tenaska Power Services Co.
Tennessee Valley Authority
Texaco Energy Services
Texas-New Mexico Power Company
The Detroit Edison Co.
The Energy Authority (Operating Agent for
Jacksonville Power Authority, The
Municipal Electric Authority of Georgia,
and Santee Cooper)
The Power Company of America, LP
Tosco Power, Inc.
Tractebel Energy Marketing, Inc.
TransAlta Energy Marketing (US) Inc. (also
TransAlta Energy Marketing and
Merchant Energy Group of the Americas)
TransCanada Energy Ltd.
Tri-State Generation and Transmission
Assoc.
Tucson Electric Power
Turlock Irrigation District
TXU Portfolio Management Company LP
UBS AG
Union Electric Company
Union Power Partners, L.P.
Utah Associated Municipal Power Systems
Vastar Power Marketing, Inc.
Vernon, City of
VIASYN, Inc.
Virginia Electric and Power Company
Vitol Gas & Electric LLC
WAPA-Colorado River Storage Project
WAPA-Desert Southwest Region
WAPA-Upper Great Plains Region
WAPA-Sierra Nevada Region
Westar Energy, Inc.
Western Farmers Electric Co-op
Western Power Services, Inc.
Williams Power Company, Inc.
WPS Energy Services, Inc.
WTMPA/City of Lubbock (Lubbock Power
& Light)
XCEL Energy Services, Inc.
Issued by: Michael E. Small, General Counsel to Effective: July 29, 2004
Western Systems Power Pool
Issued on: July 29, 2004