Exhibit 10.3
THIS AGREEMENT is made on 30th March, 1990
BETWEEN:-
(1) THE PERSONS whose names, registered numbers and registered or principal
offices are set out in Part I of Schedule 1;
(2) THE PERSONS whose names, registered numbers and registered or principal
offices are set out in Part II of Schedule 1;
(3) ENERGY SETTLEMENTS AND INFORMATION SERVICES LIMITED (registered number
2444282) whose registered office is situate at Fairham House, Green Lane,
Clifton, Nottingham NG11 9LN as Settlement System Administrator;
(4) ENERGY POOL FUNDS ADMINISTRATION LIMITED (registered number 2444187) whose
registered office is situate at 185 Park Street, London SE1 9DY as Pool
Funds Administrator;
(5) THE NATIONAL GRID COMPANY plc (registered number 2366977) whose registered
office is situate at National Grid House, Kirby Corner Road, Coventry CV4
8JY
as Grid Operator and Ancillary Services Provider;
(6) SCOTTISH POWER plc (registered number 117120) whose principal office is
situate at 1 Atlantic Quay, Glasgow G2 8SP, Scotland as an Externally
Interconnected Party;
(7) ELECTRICITE DE FRANCE, SERVICE NATIONAL whose principal office is situate
at 3 Rue de Messine, 75008 Paris, France as an Externally Interconnected
Party; and
(8) THE OTHER PARTIES whose names, registered numbers and registered or
principal offices are set out in Schedule 2.
WHEREAS:-
(A) it is a Condition of the NGC Transmission Licence that, subject to its
removal or resignation as Settlement System Administrator hereunder,
NGC shall implement, maintain and operate a settlement system which
will provide inter alia for the calculation of any payments which
become due to or owing by Authorised Electricity Operators in respect
of sales and purchases of electricity under the terms of this Agreement
and such Licence further provides that NGC may comply with its said
obligations by participation in this Agreement in the manner provided
in such Licence;
(B) it is a Condition of the Generation Licence granted to each of the
Founder Generators in England and Wales requiring such a Licence that
the licensee shall be a party to and a pool member under, and shall
comply with the provisions of, this Agreement insofar as the same shall
apply to it in its capacity as a party to this Agreement and/or as a
pool member being a generator of electricity as the case may be;
(C) it is a Condition of the PES Licence granted to each of the Founder
Suppliers whose names are set out in Part A of Part II of Schedule 1
that the licensee shall be a pool member under, and comply with the
provisions of, this Agreement;
(D) it is a Condition of the Second Tier Supply Licence granted to each of
the Founder Suppliers whose names are set out in Part B of Part II of
Schedule 1 that the licensee shall be a pool member under, and comply
with the provisions of, this Agreement insofar as the same shall apply
to it in its capacity as a private electricity supplier (as that
expression is defined in section 17(1) of the Act);
(E) this Agreement sets out, inter alia, the rules and procedures for the
operation of an electricity trading pool and for the operation of a
settlement system (including the calculation of payments due) and in
compliance with the conditions of their respective Licences those
parties subject to such conditions have agreed to become parties hereto
with the intent that this Agreement shall be and shall remain approved
by the Director;
(F) in addition to the rules and procedures set out herein, payments to the
Grid Operator connected with the Transmission Services Activity (as
that term is defined in the Transmission Licence) are dealt with
pursuant to specific arrangements between the Grid Operator and certain
parties to this Agreement; and
(G) in relation to this Agreement each of the Secretary of State and the
Director enjoys the rights, powers and authorities conferred upon him
inter alia by the Act and the Licences.
NOW IT IS HEREBY AGREED as set out on the following pages of this Agreement.
PART I
PRELIMINARY
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Agreement (including the Recitals and the
Schedules), except where the context otherwise requires:-
"Accession Agreement" means an accession agreement in or substantially
in the form set out in Schedule 3 or in such other form (to which the
Settlement System Administrator has no reasonable objection) as the
Executive Committee may for the time being and from time to time
approve;
Accountable Interest" has the meaning given to that term in Schedule 20;
"Accounting Date" means, in relation to any Accounting Period, the
last day of such Accounting Period;
"Accounting Period" means each successive period of 12 months beginning
on 1st April in each year or of such other length and/or beginning on
such other date as may be determined in accordance with the terms
hereof, provided that the first such period shall begin on and include
31st March, 1990 and shall end on and include 31st March, 1991;
"Act" means the Electricity Act 1989;
"Active Energy" means the electrical energy produced, flowing or
supplied by an electric circuit during a time interval, and being the
integral with respect to time of the instantaneous power, measured in
units of watt-hours or standard multiples thereof, that is:-
1000Wh = 1kWh 1000kWh = 1MWh 1000MWh = 1GWh 1000GWh = 1TWh;
"Active Power" means the product of voltage and the in-phase component
of alternating current measured in units of watts and standard
multiples thereof, that is:-
1000 Watts = 1kW
1000kW = 1MW
1000MW = 1GW
1000GW = 1TW;
"Admission Application" means an application in or substantially in the
form set out in Schedule 5 or in such other form as the Executive
Committee may for the time being and from time to time approve;
"Agreed Procedure" means each of the agreed procedures specified in the
Agreed Procedures Index and which is agreed to be treated as an Agreed
Procedure for the purposes of this Agreement either:-
(a) by the Executive Committee and the Settlement System
Administrator and (where the agreed procedure imposes
obligations on the Grid Operator) the Grid Operator; or
(b) where such agreed procedure concerns the duties and
responsibilities of the Pool Funds Administrator, by the
Executive Committee and the Pool Funds Administrator
as the same
(i) may be amended or substituted from time to time by the
Executive Committee with the prior written consent of the
Settlement System Administrator and (where such Agreed
Procedure imposes obligations on the Grid Operator) the Grid
Operator (in each case, such consent not to be unreasonably
withheld or delayed); or
(ii) shall be amended or substituted from time to time by the
Executive Committee at the request of the Settlement System
Administrator and with the prior written consent of the
Executive Committee and (where such Agreed Procedure imposes
obligations on the Grid Operator) the Grid Operator (in each
case, such consent not to be unreasonably withheld or
delayed),
Provided that the reference to the Grid Operator in this definition
shall be construed as if it were a reference to such term prior to the
creation of Meter Operator Parties and the associated amendments to
this Agreement, but this shall be without limitation to any right to
agree any adoption, amendment or substitution under this definition;
"Agreed Procedures Index" means an index of agreed procedures agreed to
be treated as Agreed Procedures in accordance with and for the purposes
of this Agreement;
"Agreement" means this Agreement (including the Schedules), as amended,
varied, supplemented, modified or suspended from time to time in
accordance with the terms hereof;
"Allocated Generating Unit" has the meaning given to that term in
Clause 11.2.2(a);
"Ancillary Service" means a System Ancillary Service and/or a
Commercial Ancillary Service, as the case may be;
"Ancillary Services Agreement" means an agreement between a User and
the Ancillary Services Provider for the payment by the Ancillary
Services Provider to that User in respect of the provision by such User
of Ancillary Services;
"Ancillary Services Business" means the business relating to Ancillary
Services carried on by the Ancillary Services Provider;
"Ancillary Services Provider" means the person who for the time being
and from time to time is required by the terms of a Transmission
Licence to contract for Ancillary Services;
"Annual Conference" has the meaning given to that term in Clause 9.6.1;
"Apparatus" means all equipment in which electrical conductors are
used or supported or of which they may form a part;
"Approved Recommendation" has the meaning given to that term in Clause
5.8;
"ASP Accounting Procedure" means the accounting procedure set out in
Schedule 18, as amended, varied or substituted from time to time in
accordance with the terms hereof;
"Authorised Electricity Operator" means any person who is authorised
under the Act to generate, transmit or supply electricity and shall
include any person transferring electricity to or from England and
Wales across an interconnector (as such term is used in the NGC
Transmission Licence), other than the Grid Operator in its capacity as
operator of the NGC Transmission System;
"Banking System" has the meaning given to that term in Section 1.1 of
Schedule 11;
"Billing System" has the meaning given to that term in Section 1.1 of
Schedule 11;
"BPS Goal" has the meaning given to that term in Appendix 2 to
Schedule 9;
"British Grid Systems Agreement" means the agreement of that name made
or to be made between NGC, Scottish Hydro-Electric PLC and Scottish
Power plc inter alia regulating the relationship between their
respective grid systems;
"Bulk Supply Point" means any or (as the context may require) a
particular point of supply where Metering Equipment for the purposes of
the Bulk Supply Tariff is or would have been located and, in the event
of any dispute as to location, as determined in accordance with Clause
83;
"Bulk Supply Tariff" means the basis of payment for Active Energy as
levied by the Generating Board prior to the Effective Date;
"Central Despatch" means the process of Scheduling and issuing direct
instructions by the Grid Operator referred to in paragraph 1 of
Condition 7 of the NGC Transmission Licence and "Centrally Despatched"
shall be construed accordingly;
"Change Management Policies" means the policies, procedures and
guidelines for the co-ordination by the Settlement System Administrator
of the implementation of changes to the Settlement System entitled
respectively "Change Management Policy", "Settlement Change
Co-ordinator Operating Procedures" and "Change Management
Implementation Guidelines" in the form initialled for the purposes of
identification as at 29th November, 1991 by or on behalf of the
Executive Committee and the Settlement System Administrator, as the
same have been or may be amended from time to time in accordance with
the terms of the Initial Settlement Agreement or this Agreement;
"Charging Procedure" means the charging procedure set out in the
Appendix to Schedule 4, as amended, varied or substituted from time to
time in accordance with the terms hereof;
"Chief Executive" has the meaning given to that term in Clause 17.1.1;
"Chief Executive's Office" means the Chief Executive, the Contract
Manager and the personnel referred to in Clause 17.2.1;
"Code of Practice" means each of the codes of practice in relation to
any Metering Equipment or any part or class thereof which are specified
in the Synopsis of Metering Codes, as the same may be amended or
substituted from time to time by the Executive Committee with the
agreement or approval of:-
(i) in the case of any Code of Practice in respect of Metering
Equipment in respect of which it is the Operator, the Grid
Operator;
(ii) in the case of any Code of Practice in respect of Metering
Equipment relating to Reactive Energy, the Ancillary Services
Provider; and
(iii) in the case of any change to any Code of Practice prior to 1st
April, 1998 in respect of standards of accuracy of Metering
Equipment required for Second Tier Customers up to (and
including) 100kW or Non-Pooled Generators, the Suppliers in
separate general meeting,
(provided that, prior to the date on which the transitional
arrangements regarding metering of Reactive Power at Grid Supply Points
are brought into effect (the "RP Date") in the case of a Code of
Practice or part thereof which relates to Reactive Power metering at
Grid Entry Points, such Code or part thereof may only be amended or
substituted by agreement between the Ancillary Services Provider and
all Committee Members), and any other code of practice which is agreed
from time to time to be treated as a Code of Practice for the purposes
of this Agreement by the Executive Committee (or, where appropriate,
prior to the RP Date all Committee Members) and, where appropriate, the
Grid Operator and/or the Ancillary Services Provider and/or the
Suppliers;
"Commercial Ancillary Services" means Ancillary Services, other than
System Ancillary Services, utilised by the Grid Operator in operating
the Total System if a User has agreed to provide them under a
Supplemental Agreement with payment being dealt with under an Ancillary
Services Agreement or, in the case of Externally Interconnected Parties
or External Pool Members, under any other agreement;
"Commissioned" means (i) in relation to any Plant or Apparatus
connected to the NGC Transmission System or to any External
Interconnection or any Distribution System, commissioned for the
purposes of the Connection Agreement relating to such Plant or
Apparatus; or (ii) in relation to any Metering System or Metering
Equipment, commissioned in accordance with the relevant Code of
Practice;
"Committee Member" means a member of the Executive Committee appointed
in accordance with the provisions of Part IV;
"Communications Equipment" means, at or relating to any Site, in
respect of any Metering Equipment (i) the terminating equipment (which
may include a modem) necessary to convert data from such Metering
Equipment into a state for transmission to the Settlement System
Administrator; and (ii) in the case of Sites which are not 1993/1994
Tariff Qualifying Sites (as defined in the Tariff which is entitled
Tariff for 1993/1994 Sites) the exchange link which is dedicated to
that terminating equipment, but (iii) it shall not include an
Outstation;
"Competent Authority" means the Secretary of State, the Director and
any local or national agency, authority, department, inspectorate,
minister, ministry, official or public or statutory person (whether
autonomous or not) of, or of the government of, the United Kingdom or
the European Community;
"Computer Systems" means all and any computer systems used by the
Settlement System Administrator and required in connection with the
operation of the Settlement System;
"Connection Agreements" means the Master Connection and Use of System
Agreement, the Supplemental Agreements, the Supplier's Connection
Agreements, the Supplier's Use of System Agreements and the
Interconnection Agreements, and "Connection Agreement" means any or (as
the context may require) a particular one of them;
"Connection Point" means a Grid Supply Point or Grid Entry Point, as
the case may be;
"Constituent" has the meaning given to that term in Clause 23.6.5;
"Consumer Metered Demand" has the meaning given to that term in Part I
of Appendix 1 to Schedule 9;
"Contract Management Rules" has the meaning given to that term in
sub-section 1.1 of Schedule 4;
"Contract Manager" has the meaning given to that term in sub-section
1.1 of Schedule 4;
"Contributory Share" means, in relation to any Pool Member, the
Contributory Share for the time being and from time to time of such
Pool Member calculated in accordance with Schedule 13;
"Control" has the meaning set out in section 840 of the Income and
Corporation Taxes Act 1988 and "Controlled" shall be construed
accordingly;
"Custodian" has the meaning given to that term in Clause 45.1;
"Customer" means a person to whom electrical power is provided
(whether or not he is the provider of such electrical power);
"De-energisation" means the movement of any isolator, breaker or switch
or the removal of any fuse whereby no electricity can flow to or from
the relevant User System through the User's Plant or Apparatus
connected to such User System and, in relation to any External Pool
Member, the termination of such External Pool Member's rights to use
any relevant External Interconnection;
"Default Calling Creditor" means any Pool Creditor, the Settlement
System Administrator and the Pool Funds Administrator;
"Default Interest Rate" has the meaning given to that term in Section
1.1 of Schedule 11;
"Defaulting Pool Member" has the meaning given to that term in Clause
66.3.1;
"Despatch" means the issue by the Grid Operator of instructions for
Generating Plant and/or Generation Trading Blocks to achieve specific
Active Power (and, in relation to Generating Plant, Reactive Power or
target voltage) levels within their Generation Scheduling and Despatch
Parameters or Generation Trading Block Scheduling and Despatch
Parameters, as the case may be, and by stated times;
"Development Policies" means the policies, procedures and practices for
the development of the Computer Systems in the forms initialled for the
purposes of identification as at 29th November, 1991 by or on behalf of
the Executive Committee and the Settlement System Administrator, as the
same have been or may be amended from time to time in accordance with
the terms of this Agreement;
"Directive" includes any present or future directive, requirement,
instruction, direction or rule of any Competent Authority (but only, if
not having the force of law, if compliance with the Directive is in
accordance with the general practice of persons to whom the Directive
is addressed) and includes any modification, extension or replacement
thereof then in force;
"Director" means the Director General of Electricity Supply appointed
for the time being pursuant to section 1 of the Act;
"Distribution Code" means the Distribution Code required to be drawn up
by each Public Electricity Supplier and approved by the Director, as
from time to time revised with the approval of the Director;
"Distribution System" means the system consisting (wholly or mainly) of
electric lines owned or operated by a Public Electricity Supplier and
used for the distribution of electricity from Grid Supply Points or
Generating Units or other entry points to the point of delivery to
Customers or other Users and includes any Remote Transmission Assets
(as defined in the Grid Code) operated by such Public Electricity
Supplier and any Plant and Apparatus and meters owned or operated by
such Public Electricity Supplier in connection with the distribution of
electricity, but does not include any part of the NGC Transmission
System;
"EdF Documents" means any agreement for the time being and from time to
time made between NGC and Electricite de France, Service National
relating to the use or operation of the relevant External
Interconnection;
"Effective Date" means 2400 hours on 30th March, 1990;
"electricity" means Active Energy and Reactive Energy;
"Electricity Arbitration Association" means the unincorporated members'
club of that name formed inter alia to promote the efficient and
economic operation of the procedure for the resolution of disputes
within the electricity supply industry by means of arbitration or
otherwise in accordance with its arbitration rules;
"Embedded" means having a direct connection to a Distribution System or
the System of any other User to which Customers and/or Power Stations
are connected, such connection being either a direct connection or a
connection via a busbar of another User or of NGC (but with no other
connection to the NGC Transmission System);
"Embedded Non-Franchise Site" means:-
(i) a Site which is Embedded and which is at the point of connection
to a Second Tier Customer; or
(ii) a site which is Embedded where the customer to which that site
is at a point of connection is eligible to receive supplies
from a Second Tier Supplier in the period between 1st April,
1994 and 31st March, 1998;
"Equipment Owner" means, in relation to a Metering System, the person
which is the owner of that Metering System;
"ERS"means the electronic registration system operated by the
Settlement System Administrator in accordance with Clause 60.5;
"ERS First Tier Customer" means a Customer with a demand greater than
100kW, other than a Second Tier Customer, of a Public Electricity
Supplier in respect of whom that Public Electricity Supplier has
registered in ERS the Metering System which is associated with supplies
to that Customer;
"Escrow Agreement" has the meaning given to that term in Clause 45.1;
"ESIS" means Energy Settlement and Information Systems Limited
(registered number 2444282) whose registered office is at Fairham
House, Green Lane, Clifton, Nottingham NG11 9LN;
"Event of Default" means any event declared as such pursuant to Clause
66.1.1 or 66.2.1, as the case may be;
"Executive Committee" means the committee established pursuant to
Clause 14;
"Export" means, in respect of any Party, a flow of electricity from the
Plant or Apparatus of such Party to the Plant or Apparatus of another
Party and, in relation to any Party which is an External Pool Member,
the External Interconnection in respect of which that Party has the
right to deliver or take electricity to or from the NGC Transmission
System shall be treated as the Plant or Apparatus of such Party and the
verb "Export" and its respective tenses shall be construed accordingly;
"External Interconnection" means Apparatus for the transmission of
electricity to or from the NGC Transmission System into or out of
an External System;
"Externally Interconnected Party" means a person operating an External
System which is connected to the NGC Transmission System by an External
Interconnection (which person may or may not also be an External Pool
Member);
"External Pool Member" means a Party supplying electricity to or taking
electricity from the NGC Transmission System through an External
Interconnection and which has been or (where appropriate) is to be
admitted as a Pool Member in the capacity of a Generator and/or a
Supplier;
"External System" means, in relation to an Externally Interconnected
Party, the transmission or distribution system which it owns or
operates and any Apparatus or Plant which connects that system to the
External Interconnection and which is owned or operated by such
Externally Interconnected Party;
"Final Metering Scheme" means a national metering scheme to be
installed in accordance with the relevant Codes of Practice and to come
into effect on the FMS Date;
"First Quarter" means, in respect of any year, the months of January,
February and March;
"FMS Codes of Practice" means the Codes of Practice B, C, E, J, K1 and
K2 and, to the extent that they relate to Metering Equipment the data
derived from which was not used as Settlement Metering Data immediately
prior to the FMS Date, F and G, and Codes of Practice 1, 2, 3, 4 and 5;
"FMS Date" means 1st April, 1993;
"FMS Metering Equipment" means Metering Equipment comprising a Metering
System at or in relation to the commercial boundary in accordance with
paragraph 7.1.2 of Schedule 21 in relation to the requirements to be
met from the FMS Date;
"FMS Trading Date" means 10th January, 1994;
"Following Quarter" means, in respect of any Quarter Day or Quarter,
the period of three months immediately following such Quarter Day
or Quarter;
"Force Majeure" means, in relation to any Party, any event or
circumstance which is beyond the reasonable control of such Party and
which results in or causes the failure of that Party to perform any of
its obligations under this Agreement including act of God, strike,
lockout or other industrial disturbance, act of the public enemy, war
declared or undeclared, threat of war, terrorist act, blockade,
revolution, riot, insurrection, civil commotion, public demonstration,
sabotage, act of vandalism, lightning, fire, storm, flood, earthquake,
accumulation of snow or ice, lack of water arising from weather or
environmental problems, explosion, fault or failure of Plant and
Apparatus (which could not have been prevented by Good Industry
Practice), governmental restraint, Act of Parliament, other
legislation, bye-law and Directive (not being any order, regulation or
direction under section 32, 33, 34 or 35 of the Act) provided that lack
of funds shall not be interpreted as a cause beyond the reasonable
control of that Party. For the avoidance of doubt, Force Majeure shall
not apply in respect of the Settlement System Administrator where and
to the extent that the Settlement System Administrator can perform its
obligations under this Agreement by using the back-up arrangements
required by Service Line 6 (Off-Site Security) or by acting in
accordance with Clause 52 or Section 31 of Schedule 9;
"Founder Generators" means the parties to this Agreement of the first
part at 30th March, 1990;
"Founder Suppliers" means the parties to this Agreement of the second
part at 30th March, 1990;
"Fourth Quarter" means, in respect of any year, the months of October,
November and December;
"Fuel Security Code" means the document of that title designated as
such by the Secretary of State, as from time to time amended;
"Funds Transfer Agreement" has the meaning given to that term in
Section 1.1 of Schedule 11;
"Funds Transfer Business" has the meaning given to that term in
Section 1.1 of Schedule 11;
"Funds Transfer Hardware" has the meaning given to that term in
Section 1.1 of Schedule 15;
"Funds Transfer Software" has the meaning given to that term in
Section 1.1 of Schedule 15;
"Funds Transfer System" has the meaning given to that term in Section
1.1 of Schedule 11;
"the Generating Board" has the meaning given to that term in the Act;
"Generating Plant" means a Power Station subject to Central Despatch;
"Generating Unit" means any Apparatus which produces electricity and,
in respect of an External Pool Member, means a Generation Trading
Block;
"Generation Licence" means a licence granted or to be granted under
section 6(1)(a) of the Act;
"Generation Scheduling and Despatch Parameters" means those parameters
listed in Appendix A1 to SDC1;
"Generation Trading Block" means a notional Centrally Despatched
Generating Unit of an External Pool Member treated as such for the
purposes of the Grid Code;
"Generation Trading Block Scheduling and Despatch Parameters" means
those parameters listed in Appendix A1 to SDC1 relating to
Generation Trading Blocks;
"Generator" means:-
(i) a person who generates electricity under licence or exemption
under the Act; or
(ii) a person who is an External Pool Member who delivers electricity
or on whose behalf electricity is delivered to the NGC
Transmission System; or
(iii)a person who is acting as the agent for any such person who is
referred to in paragraph (i) or (ii) above,
and, in any such case, for the time being party to this Agreement,
and:-
(a) who is a Founder Generator; or
(b) who was admitted as a Party in the capacity of a Generator; or
(c) who, in accordance with Clause 3.10, has changed capacity(ies)
such that it participates as a Party in the capacity of a
Generator,
and, where the expression is used in Part III or Part IV, who is also
or (where appropriate) is to become a Pool Member;
"Generator Weighted Vote" has the meaning given to that term in Clause
11.2.1;
"Generic Dispensation" shall have the meaning ascribed thereto in
paragraph 14.1(b) of Schedule 21;
"Genset Metered Generation" has the meaning given to that term in Part
I of Appendix 1 to Schedule 9;
"Gigawatt" means 1000MW;
"GOALPOST" has the meaning given to that term in the Pool Rules;
"Good Industry Practice" means, in relation to any undertaking and any
circumstances, the exercise of that degree of skill, diligence,
prudence and foresight which would reasonably and ordinarily be
expected from a skilled and experienced operator engaged in the same
type of undertaking under the same or similar circumstances;
"Grid Code" means the Grid Code drawn up pursuant to the Transmission
Licence, as from time to time revised in accordance with the Transmission
Licence;
"GridCode Review Panel" has the meaning given to that term in the
Grid Code;
"Grid Entry Point" means the point at which a Power Station which is
not Embedded connects to the NGC Transmission System;
"Grid Operator" means the person who for the time being and from time
to time is required by the terms of a Transmission Licence, inter alia,
to implement the Grid Code;
"Grid Supply Point" means the point of supply from the NGC Transmission
System to Public Electricity Suppliers or to other Users with User
Systems with Customers connected to them or Non-Embedded Customers;
"GW" means Gigawatt;
"GWh" means Gigawatt-hour;
"Hardware" means at any time the computer equipment and accessories
used by the Settlement System Administrator on or in connection with
which the Software functions or is intended to function at such time
(other than Second Tier Hardware) and for the avoidance of doubt the
Hardware at 1st April, 1996 is specified in version 1.0 of the Contract
Management Rules;
"Host PES" means, in respect of a Metering System, either:-
(i) the Public Electricity Supplier to whose Distribution System such
Metering System is connected; or
(ii) where such Metering System is connected directly to the NGC
Transmission System, the Public Electricity Supplier whose
Consumer Metered Demand determined in accordance with the Pool
Rules is calculated by the Settlement System Administrator
using data from such Metering System;
"Identified Pool Member" has the meaning given to that term in Clause
11.2.2(a) or, as the context may require, paragraph 2(A) of Schedule 13;
"Import" means, in respect of any Party, a flow of electricity to the
Plant or Apparatus of such Party from the Plant or Apparatus of another
Party and, in relation to any Party which is an External Pool Member,
the External Interconnection in respect of which it has the right to
deliver or take electricity to or from the NGC Transmission System
shall be treated as the Plant or Apparatus of such Party and the verb
"Import" and its respective tenses shall be construed accordingly;
"Independent Generators" means Generators other than:-
(i) the Founder Generators;
(ii) any Generator which is an External Pool Member; and
(iii) any Generator which is an affiliate or related undertaking of
(a) any person referred to in paragraph (i) or (ii) above, (b)
any person referred to in paragraph (i) of the definition of
Independent Suppliers, or (c) any Public Electricity Supplier;
"Independent Suppliers" means Suppliers other than:-
(i) Eastern Group plc, East Midlands Electricity plc, London
Electricity plc, Manweb plc, Midlands Electricity plc,
Northern Electric plc, NORWEB plc, SEEBOARD plc, Southern
Electric plc, South Wales Electricity plc, South Western
Electricity plc, Yorkshire Electricity Group plc, National
Power PLC, PowerGen plc, Nuclear Electric plc, British Nuclear
Fuels plc, Electricite de France, Service National, Scottish
Power plc and Scottish Hydro-Electric PLC;
(ii) Public Electricity Suppliers;
(iii) any Supplier which is an External Pool Member; and
(iv) any Supplier which is an affiliate or related undertaking of any
person referred to in paragraph (i), (ii) or (iii) above;
"Information Systems" has the meaning given to that term in Section
1.1 of Schedule 11;
"Initial Settlement Agreement" means the agreement of even date
herewith made between the Parties as at such date modifying and
suspending the provisions of this Agreement for an initial period and
setting out inter alia the rules and procedures for the operation of
the electricity trading pool referred to in Recital (E) and for the
operation of a settlement system and the procedures for the development
of the phases and pool rules during such initial period, as amended,
varied, supplemented, modified or suspended from time to time;
"Interconnection Agreement" means an agreement between NGC and an
Externally Interconnected Party and/or an External Pool Member relating
to an External Interconnection and/or an agreement under which an
External Pool Member can use an External Interconnection;
"IS Committee Member" means an RS Committee Member elected in order
to represent the interests of Independent Suppliers on the
Executive Committee;
"IS Nominee" has the meaning given to that term in Clause 15.6.4(c);
"IS Preference List" has the meaning given to that term in Clause
15.6.4(i);
"IS Pool Member" means an Independent Supplier:-
(i) which is not a Public Electricity Supplier;
(ii) which is not in the same Pool Member's Group as an MP
Pool Member; and
(iii) whose Weighted Votes constitute one per cent. or less of
the Total Weighted Votes;
"kVAr" means kilovoltamperes reactive;
"kW" means kilowatt;
"kWh" means kilowatt-hour;
"Licences" means all Generation Licences, PES Licences, Second Tier
Supply Licences and Transmission Licences and "Licence" means any or
(as the context may require) a particular one of them;
"lost opportunity costs" means, in relation to any Generator, the
profit foregone by such Generator in respect of a Generating Unit
during a period when it is out of service for the purposes of
maintenance, repair, modification, renewal or replacement needed to
comply with a proposal made by such Generator to restore the Generating
Unit's Reactive Power capability to that required by the Grid Code or,
where relevant, the applicable Supplemental Agreement, whichever
capability is lower provided that:-
(i) the period when it is taken out of service is:-
(a) outside the period identified for the Generating Unit
concerned pursuant to Section OC2 of the Grid Code as
at the time when the failure to have Reactive Power
capability was notified or determined; and
(b) approved by the Grid Operator; and
(ii) the Generator gives credit for any savings in loss of profit by
carrying out other repair work at the same time as that required
for the purposes of Reactive Power;
"MainSite" means those sites specified in paragraphs (i), (ii) and
(v) of the definition of Site;
"Majority Default Calling Creditors" means:-
(i) in respect of each calendar quarter other than the first, any
single or group of Default Calling Creditors to whom, in
respect of the aggregate of (a) all Notified Payments payable
on the last five Business Days of the immediately preceding
calendar quarter and (b) all sums due to the Settlement System
Administrator, the Pool Funds Administrator and the Ancillary
Services Provider and outstanding under this Agreement on the
last Business Day of such immediately preceding calendar
quarter, more than 50 per cent. of the total amount of all
such Notified Payments and such other sums were due; and
(ii) in respect of the first calendar quarter, all Pool Members other
than the Defaulting Pool Member;
"Master Connection and Use of System Agreement" means the agreement
envisaged in Condition 10B of the NGC Transmission Licence;
"Membership Vote" has the meaning given to that term in Clause 11.1;
"Meter" means a device for measuring Active Energy and/or Reactive
Energy;
"Meter Operator Party" means each person admitted in the capacity as
such and for the time being and from time to time party to Schedule 21
in accordance with the provisions thereof, and shall include any
successor(s) in title to, or permitted assign(s) of, such person;
"Meter Operator Party Accession Agreement" means an accession agreement
in or substantially in the form set out in Annex 3 to Schedule 21 or in
such other form (to which the Settlement System Administrator has no
reasonable objection) as the Executive Committee may for the time being
and from time to time approve;
"Meter Operator Party Admission Application" means an application in or
substantially in the form set out in Annex 1 to Schedule 21 or in such
other form as the Executive Committee may for the time being and from
time to time approve;
"Meter Operator Party Resignation Notice" means a resignation notice in
or substantially in the form set out in Annex 2 to Schedule 21 or in
such other form as the Executive Committee may for the time being and
from time to time approve;
"Metering Equipment" means Meters, measurement transformers (voltage,
current or combination units), metering protection equipment including
alarms, circuitry, their associated Communications Equipment and
Outstations, and wiring which are part of the Active Energy and/or
Reactive Energy measuring and transmitting equipment at or relating to
a Site;
"Metering System" means all or that part of the Commissioned Metering
Equipment at or relating to a Site linked to a single Outstation at or
relating to that Site and includes, for the avoidance of doubt, such
Outstation. Without prejudice to the generality of the foregoing, a set
of non-exhaustive diagrammatic representations of Metering Systems is
contained in Annex 5 to Schedule 21;
"Moderator" means a person nominated for the time being and from time
to time by the Pool Chairman (failing whom, by the Chief Executive) to
perform certain obligations pursuant to Clause 15;
"MP Committee Member" has the meaning given to that term in Clause
15.5;
"MP Nominee" has the meaning given to that term given in Clause 15.5.1;
"MP Nominee List" has the meaning given to that term in Clause 15.5.2;
"MP Pool Member" means a Pool Member which is neither an Independent
Supplier nor a Small Generator but shall include:
(i) a Pool Member which is an Independent Supplier if:
(a) it is a Public Electricity Supplier; or
(b) its Weighted Votes constitute more than one per cent.
of the Total Weighted Votes; and
(ii) a Pool Member which is an Independent Supplier or Small
Generator which is a member of a Pool Member's Group in which
there is at least one other Pool Member which is neither:
(a) an Independent Supplier (not being a Public Electricity
Supplier) with Weighted Votes constituting one per
cent. or less of the Total Weighted Votes; or
(b) a Small Generator;
"MP Preference List" has the meaning given to that term in Clause
15.5.3(f);
"MVAr" means megavar;
"MVArh" means megavar-hours;
"MW" means megawatt;
"MWh" means megawatt-hours;
"NGC" means the National Grid Company plc (registered number 2366977)
whose registered office is situate at National Grid House, Kirby Corner
Road, Coventry CV4 8JY;
"NGC Site" means a site owned (or occupied pursuant to a lease, licence
or other agreement) by NGC at which there is a Connection Point and,
for the avoidance of doubt, a site owned by a User but occupied by NGC
as aforesaid is an NGC Site;
"NGC Transmission Licence" means the Transmission Licence granted or
to be granted to NGC;
"NGC Transmission System" means the system consisting (wholly or
mainly) of high voltage electric lines owned or operated by NGC and
used for the transmission of electricity from one Power Station to a
sub-station or to another Power Station or between sub-stations or to
or from any External Interconnection and includes any Plant and
Apparatus and meters owned or operated by NGC in connection with the
transmission of electricity but does not include any Remote
Transmission Assets (as defined in the Grid Code);
"Non-Embedded Customer" means any Customer, other than a PES, receiving
electricity direct from the NGC Transmission System irrespective of
from whom it is supplied;
"Non-Pooled Generation" means generation from any site which is
directly connected to the Distribution System of a Public Electricity
Supplier where (i) the output is accounted for in Settlement and (ii)
the Generator owning such site:-
(a) is exempted from holding a Generation Licence; or
(b) would be exempted from holding a Generation Licence if such site
were the only site owned by that Generator;
"Non-Pooled Generation System" means any Metering System of a
Non-Pooled Generator which has been registered with the Settlement
System Administrator by a Second Tier Supplier or Public Electricity
Supplier and from which the Settlement System Administrator or any
Second Tier Agent is required to collect, aggregate, adjust or transmit
data for the purposes of taking a supply of electricity;
"Non-Pooled Generator" means a Generator who produces Non-Pooled
Generation, provided that a Generator shall be a Non-Pooled Generator
only to the extent that it owns sites which produce Non-Pooled
Generation;
"Non-Second Tier System" means a metering system at premises eligible
for supply under a Second Tier Supply Licence in the authorised area of
a Supplier holding a PES Licence but not being a Metering System in
respect of which a Second Tier Supplier is the Registrant;
"Notified Payment" has the meaning given to that term in Section 1.1
of Schedule 11;
"Operator" means, in relation to any Metering System:-
(i) used to measure the supply to a Second Tier Customer or from a
Non-Pooled Generator, the Meter Operator Party who is
appointed as such by the Second Tier Customer, the Non-Pooled
Generator or by the Registrant (with the consent of that
Second Tier Customer or, as the case may be, Non-Pooled
Generator) and who agrees to act as Operator in relation to
such Metering System; or
(ii) not within (i) above or (iii) to (v) below, the Meter Operator
Party who is appointed as such by the Registrant of such
Metering System and who agrees to act as Operator in relation
to such Metering System; or
(iii)where new Metering Equipment is to be added to an existing
Metering System, the Operator of such existing Metering System;
or
(iv) the Meter Operator Party which continues as the Operator in
accordance with the transitional arrangements set out in
paragraph 23 of Schedule 21; or
(v) the Party who is deemed to be the Operator and Meter Operator
Party in respect thereof in accordance with the terms of Clause
60.4.4;
"Outgoing Committee Member" has the meaning given to that term in
Clause 15.12;
"Outstation" means equipment which receives and stores data from a
Meter(s) for the purpose, inter alia, of transfer of that metering data
to the Settlement System Administrator and which may perform some
processing before such transfer. This equipment may be in one or more
separate units or may be integral with the Meter; "Party" means each
person for the time being and from time to time party to this Agreement
acting in a capacity, or deemed to be acting in a capacity, other than
that of Operator or Meter Operator Party, and shall include any
successor(s) in title to, or permitted assign(s) of, such person;
"Period Metered Demand" has the meaning given to that term in Part I
of Appendix 1 to Schedule 9;
"PES Licence" means a licence granted or to be granted under section
6(1)(c) of the Act;
"PFA Accounting Procedure" means the procedure for the recovery of
certain moneys set out in Section 20 of Schedule 15;
"Plant" means fixed and moveable items used in the generation and/or
supply and/or transmission of electricity, other than Apparatus;
"Pool Auditor" means the firm of accountants appointed for the time
being and from time to time pursuant to Clause 47.1;
"PoolAuditor's Report" has the meaning given to that term in Clause
9.7.1;
"PoolBanker" has the meaning given to that term in Section 1.1 of
Schedule 11;
"Pool Chairman" has the meaning given to that term in Clause 16.1;
"PoolCreditor" has the meaning given to that term in Section 1.1 of
Schedule 11;
"Pool Funds Administrator" means the person for the time being and
from time to time appointed pursuant to Schedule 15 to act as
Pool Funds Administrator;
"Pool Member" means each of the Founder Generators and Founder
Suppliers and any other person who is admitted to pool membership in
accordance with Clause 8.2, in each case until it shall have resigned
from pool membership or otherwise ceased to be a member in accordance
with this Agreement, and "Pool Membership" shall be construed
accordingly;
"PoolMember's Group" in relation to any Pool Member means that Pool
Member and any affiliate (as defined in Clause 1.2.3) of that
Pool Member;
"Pool Membership Application" means an application in or substantially
in the form set out in Schedule 6 or in such other form as the
Executive Committee may for the time being and from time to time
approve;
"Pool Rules" means the rules referred to in Clause 7.4 and set out in
Schedule 9, as amended, varied or substituted from time to time in
accordance with the terms hereof;
"PORTHOLE" means the database which allows the transfer of operational
information from the Grid Operator to the Settlement System
Administrator;
"Potential Operator" means a Meter Operator Party which is appointed
as the operator pursuant to an agreement or arrangement:-
(i) in respect of a Metering System or Metering Equipment at a Site
or Sites but which is not yet registered as Operator in respect
of that Metering System; or
(ii) in respect of Metering Equipment where such Metering Equipment
has not been registered as comprising a Metering System;
"Power Station" means an installation comprising one or more Generating
Units (even where sited separately), other than an External
Interconnection, owned and/or controlled by the same Generator, which
may reasonably be considered as being managed as one Power Station;
"Preferred IS Nominee" has the meaning given to that term in Clause
15.6.4(e);
"Preferred MP Nominee" has the meaning given to that term in Clause
15.5.3(b);
"Preferred RS Nominees" has the meaning given to that term in Clause
15.6.4(e);
"Preferred SG Nominee" has the meaning given to that term in Clause
15.6.4(d);
"Public Electricity Supplier" or "PES" means a person for the time
being party to this Agreement who is a public electricity supplier (as
that expression is defined in the Act) and, in relation to Clauses 15.4
and 15.5 and Schedules 14 and 22, means a person for the time being
party to this Agreement who is a public electricity supplier in England
and Wales;
"Qualifying Site" means an Embedded Non-Franchise Site qualifying in
accordance with the terms of the relevant Tariff for payments to be
made for the provision of installation and maintenance services;
"Quarter" means the period of three calendar months ending on a
Quarter Day;
"Quarter Day" means 31st March, 30th June, 30th September and 31st
December;
"Reactive Energy" means the integral with respect to time of the
Reactive Power;
"Reactive Power" means the product of voltage and current and the sine
of the phase angle between them measured in units of voltamperes
reactive and standard multiples thereof, that is:-
1000VAr = 1kVAr
1000kVAr = 1MVAr;
"Redistributed Votes" has the meaning given to that term in Clause
11.4.3(a);
"Register" means the register to be maintained by the Settlement
System Administrator pursuant to Clause 60.5;
"Registered Capacity" has the meaning given to that term in the Grid
Code;
"Registrant" means, in relation to a Metering System at or in relation
to any Site which is:-
(i) a Grid Entry Point,
the Pool Member which operates Generating Plant at such Site; or
(ii) a Grid Supply Point or Bulk Supply Point,
the Pool Member whose System is directly connected to the NGC
Transmission System at or in relation to such Grid Supply Point or Bulk Supply
Point; or
(iii) the point of connection of a Customer of a Supplier and the NGC
Transmission System,
the Supplier which is the supplier to that Customer; or
(iv) the point of connection to a Distribution System of a Generator
which is Embedded or of a Second Tier Supplier or of a Second
Tier Customer or of an ERS First Tier Customer,
the Party which is such Generator which is Embedded or such Second Tier
Supplier or the Second Tier Supplier in respect of such Second Tier
Customer or the Public Electricity Supplier in respect of such ERS
First Tier Customer, as the case may be; or
(v) the point of connection of a Non-Pooled Generator to a
Distribution System,
the party which is the Supplier or Second Tier Supplier, as the case
may be, in respect of such Metering System of such Non-Pooled Generator; or
(vi) the point of connection of two or more Distribution Systems,
the Authorised Electricity Operator of one of such Distribution
Systems which is nominated in accordance with the provisions of
this Agreement; or
(vii) the point of connection of an External Interconnection to the NGC
Transmission System or a Distribution System,
the Externally Interconnected Party;
"Resignation Notice" means a resignation notice in or substantially in
the form set out in Schedule 10;
"RP Date" has the meaning given to that term in the definition of
Code of Practice;
"RS Committee Member" means a member of the Executive Committee elected
by RS Pool Members in accordance with provisions of Clause 15.6;
"RS Nominee" has the meaning given to that term in Clause 15.6.1;
"RS Nominee List" has the meaning given to that term in Clause 15.6.2;
"RS Pool Member" means an IS Pool Member or a SG Pool Member, as the
context may require;
"Schedule Day" has the meaning given to that term in Part I of
Appendix 1 to Schedule 9;
"Scheduling" means the process of compiling and issuing a Generation
Schedule (as that expression is defined in the Grid Code), as set
out in SDC1;
"Scheduling and Despatch Code" or "SDC" means that portion of the Grid
Code which is identified as such in the Grid Code;
"Scheme" means the scheme set out in Clause 53 and, separately, each
further scheme implemented pursuant to Clause 56.2;
"Scheme Admission Application" means an application form setting out
the Scheme Admission Conditions and requiring such information as the
Executive Committee may consider necessary to enable it to consider the
application, in such form as the Executive Committee may from time to
time determine;
"Scheme Admission Conditions" means the conditions set out in Clause
54;
"Scheme Genset" means a Centrally Despatched Generating Unit which is
admitted to a Scheme under Clause 53.3;
"Scheme Planned Availability" or "SPA" has the meaning given to that
term in Clause 55;
"Scheme Year" means, in respect of each Scheme Genset, each successive
period of twelve months, the first such period commencing on 1st April, 1990;
"Second Quarter" means, in respect of any year, the months of April,
May and June;
"Second Tier Agent" means an agent appointed pursuant to Clause
60.16.1;
"Second Tier Computer Systems" means all and any computer systems used
by any Second Tier Agent in connection with the operation of the Second
Tier Data Collection System operated by such Second Tier Agent;
"Second Tier Customer" means a person who is supplied with or sold
electricity by a Second Tier Supplier;
"Second Tier Data Collection System" means those parts of the
Settlement System which relate to the obligations of the Settlement
System Administrator under this Agreement in relation to collecting,
estimating and aggregating data as may be required for the proper
functioning of Settlement from Metering Systems at the point of
connection between the Distribution System of a Public Electricity
Supplier and:-
(i) a Second Tier Customer, an ERS First Tier Customer or Non-Pooled
Generator;
(ii) the System of an Authorised Electricity Operator other than the
Public Electricity Supplier;
(iii) an Embedded Generator not subject to Central Despatch; and
(iv) the Distribution System of another Public Electricity Supplier,
and providing such data to the Settlement System Administrator;
"Second Tier Hardware" means at any time the computer equipment and
accessories used by any Second Tier Agent on or in connection with
which the Second Tier Software functions or is intended to function at
such time;
"Second Tier Software" means at any time the computer programs and
codes and associated documents and materials which are used by any
Second Tier Agent in connection with the operation of the Second Tier
Data Collection System operated by such Second Tier Agent;
"Second Tier Supplier" means a person for the time being party to this
Agreement who is the holder of a Second Tier Supply Licence;
"Second Tier Suppliers' Non-Pooled Generation System Charge" means the
amount determined by the Executive Committee for the purposes of Clause 34A.3;
"Second Tier Suppliers' System Charge" means the amount determined by
the Executive Committee for the purposes of Clause 34A.2;
"Second Tier Supply Licence" means a licence granted or to be granted
under section 6(2)(a) of the Act;
"Second Tier System" means any Metering System from which the
Settlement System Administrator or any Second Tier Agent is required to
collect, aggregate, adjust or transmit data for the purposes of a
supply pursuant to a Second Tier Supply Licence;
"Secretary" means the person for the time being and from time to time
holding office as secretary of the Executive Committee;
"Secretary of State" has the meaning given to that term in the Act;
"Security Cover" has the meaning given to that term in Section 1.1 of
Schedule 11;
"Security Period" has the meaning given to that term in the Fuel
Security Code;
"Service Line" has the meaning given to that term in Section 1.1 of
Schedule 4;
"Settlement" means the operation of the Settlement System under this
Agreement;
"Settlement Account" has the meaning given to that term in Section 1.1
of Schedule 11;
"Settlement Day" has the meaning given to that term in Part I of
Appendix 1 to Schedule 9;
"Settlement GOAL" has the meaning given to that term in Appendix 2 to
Schedule 9; "Settlement Metering Data" shall mean Metered Data as
defined in, and used in accordance with Section 3 of Schedule 9 and
relevant metered data in accordance with Appendix 6 to Schedule 9 of
this Agreement, which is used for the purposes of Settlement;
"Settlement Period" has the meaning given to that term in Part I of
Appendix 1 to Schedule 9;
"Settlement System" means those assets, systems and procedures for the
calculation in accordance with the Pool Rules of payments which become
due thereunder, as modified from time to time;
"Settlement System Administrator" means ESIS in its capacity as
Settlement System Administrator or any replacement therefor as
Settlement System Administrator from time to time appointed pursuant to
this Agreement;
"Settlements Business" means the business of the Settlement System
Administrator in operating the Settlement System under this
Agreement;
"SG Committee Member" means an RS Committee Member elected in order
to represent the interests of Small Generators on the Executive
Committee;
"SG Nominee" has the meaning given to that term in clause 15.6.4(b);
"SG Pool Member" means a Small Generator which is not in the same
Pool Member's Group as an MP Pool Member;
"SG Preference List" has the meaning given to that term in Clause
15.6.4(h);
"Site" means:-
(i) a Grid Entry Point;
(ii) a Grid Supply Point or Bulk Supply Point;
(iii) the point of connection to a Distribution System or the NGC
Transmission System of a Generator which is Embedded or of a
Second Tier Supplier or of a Second Tier Customer or of an ERS
First Tier Customer, or the point of connection of a
Non-Pooled Generator to a Distribution System;
(iv) the point of connection of two Distribution Systems; or
(v) the point of connection of an External Interconnection to the NGC
Transmission System;
"Small Generator" means any Independent Generator with Generating Units
the aggregate Registered Capacity of which does not exceed 100MW;
"Software" means at any time all the computer programs, codes and
associated documents and materials which are at such time used by or on
behalf of the Settlement System Administrator and required in the
operation of the Settlement System;
"Specification" means at any time the computer specification(s) giving
effect to the Pool Rules and such other matters as may be agreed
between the Executive Committee and the Settlement System Administrator
at the time;
"SSA Arrangements" means this Agreement, the Service Lines, the Agreed
Procedures and the Codes of Practice;
"SSA System" means all operating systems, compilers and other software
necessary to or used for the operation or testing of the Hardware and
the Settlement System (excluding, for the avoidance of doubt, Developed
Application Software and Licensed Application Software, each as defined
in sub-section 10.1 of Schedule 4);
"Supplemental Agreement" means any agreement entered or to be entered
into between NGC and any User party to the Master Connection and Use of
System Agreement and expressed to be supplemental thereto;
"Supplier" means a person for the time being party to this Agreement:-
(i) who is a Founder Supplier; or
(ii) who was admitted as a Party in the capacity of a Supplier; or
(iii) who, in accordance with Clause 3.10, has changed capacity(ies)
such that it participates as a Party in the capacity of a Supplier,
and, where the expression is used in Part III, Part IV or Part XI or
Schedule 14 or 18, who is also or (where appropriate) is to become a Pool
Member;
"Supplier Weighted Vote" has the meaning given to that term in Clause
11.2.2;
"Supplier's Connection Agreement" means the agreement for connection to
any User System envisaged in Condition 8B of a PES Licence and
Condition 3 of a Second Tier Supply Licence;
"Supplier's System Charge" means the amount determined by the
Executive Committee in accordance with the provisions of Clause
34A.4;
"Supplier's Use of System Agreement" means the agreement for use of
system envisaged in Condition 8B of a PES Licence and Condition 3 of a
Second Tier Supply Licence;
"Synopsis of Metering Codes" means a synopsis maintained and updated as
necessary by the Executive Committee listing each Code of Practice
approved as such from time to time in accordance with this Agreement;
"System" means any User System or the NGC Transmission System, as the
case may be;
"System Ancillary Services" means Ancillary Services which are required
for System reasons and which must be provided by Users (but in some
cases only if a User has agreed to provide the same under a
Supplemental Agreement);
"Tariff" for any period of one year in respect of any Site (which
whenever used in this definition shall include all Qualifying Sites)
means the tariff approved by the Director and published by the
Executive Committee on or before that tariff becomes effective and
providing for amounts payable to Tariff Operators of certain Sites in a
class of which that Site is a member in respect of the provision of
installation and maintenance services in respect of Communications
Equipment; and the "relevant Tariff" in respect of any Site (or
Metering Equipment or Metering System in respect of a Site) shall be
the Tariff which is so expressed by its terms to apply to that class of
Sites to which such Site so belongs;
"Tariff Operator" means a Meter Operator Party which is an Operator or
which is appointed as the operator pursuant to an agreement or an
arrangement in respect of Metering Equipment at a Qualifying Site;
"Third Quarter" means, in respect of any year, the months of July,
August and September;
"Total Second Tier System Charges" means, in respect of any Specified
Accounting Period (as defined in Clause 34A.1), the aggregate of the
costs, expenses and charges incurred by all Second Tier Agents in
respect of the relevant Specified Accounting Period and relating to the
collection, aggregation, adjustment and transmission of data from
Second Tier Systems, Non-Pooled Generation Systems and any other
Metering Systems registered in ERS pursuant to any requirement of this
Agreement, or when the collection, aggregation, adjustment and the
transmission of data from Second Tier Systems, Non-Pooled Generation
Systems and any other Metering Systems registered in ERS pursuant to
any requirement of this Agreement is performed by the Settlement System
Administrator the costs, expenses and charges directly incurred by the
Settlement System Administrator plus the deficit (if any) or (as the
case may be) less the surplus (if any) in the amount of Total Second
Tier System Charges recovered for the immediately preceding Specified
Accounting Period carried forward in accordance with the provisions of
Clause 34A.5;
"Total System" means the NGC Transmission System and all User Systems
in England and Wales;
"Total Weighted Votes" means at any time the aggregate number of
Weighted Votes to which all Pool Members (in whatever capacity) are
entitled at such time before the application of Clause 11.4;
"Trading Site" shall be determined in accordance with Schedule 17;
"Transferee Pool Member" has the meaning given to that term in Clause
11.2.2(a) or, as the context may require, paragraph 2(A) of Schedule 13;
"Transmission Licence" means a licence granted or to be granted under
section 6(1)(b) of the Act, the authorised area of which is England and
Wales or any part of either thereof;
"Transport Uplift" has the meaning given to that term in Appendix 1 to
Schedule 9;
"TW" means terrawatt;
"TWh" means terrawatt-hours;
"undertaking" has the meaning given to that term by section 259 of the
Companies Act 1985 as substituted by section 22 of the Companies Act
1989 and, if that latter section is not in force at the date of this
Agreement, as if such latter section were in force at such date;
"User" means a term utilised in various sections of the Grid Code to
refer to a person using the NGC Transmission System and includes an
Externally Interconnected Party, all as more particularly identified in
each section of the Grid Code concerned;
"User Site" means a site owned (or occupied pursuant to a lease,
licence or other agreement) by a User in which there is a Connection Point;
"User System" means:-
(i) other than in relation to an External Pool Member or an
Externally Interconnected Party, any system owned or operated
by a User comprising Generating Units and/or Distribution
Systems (and/or other systems consisting, wholly or mainly, of
electric lines which are owned or operated by a person other
than a PES) and Plant and/or Apparatus connecting Generating
Units, Distribution Systems (and/or other systems consisting,
wholly or mainly, of electric lines which are owned or
operated by a person other than a PES) or Non-Embedded
Customers to the NGC Transmission System or (except in the
case of Non-Embedded Customers) to the relevant other User
System, as the case may be, including any Remote Transmission
Assets (as defined in the Grid Code) operated by such User or
other person and any Plant and/or Apparatus and meters owned
or operated by the User or other person in connection with the
distribution of electricity, but does not include any part of
the NGC Transmission System; and
(ii) in relation to an External Pool Member or an Externally
Interconnected Party, the External System connected to the
relevant External Interconnection;
"VAr" means voltamperes reactive;
"Votes Calculation Period" means:-
(i) in relation to the First Quarter in any year, the Third Quarter
in the immediately preceding year;
(ii) in relation to the Second Quarter in any year, the Fourth Quarter
in the immediately preceding year;
(iii) in relation to the Third Quarter in any year, the First Quarter
of the same year; and
(iv) in relation to the Fourth Quarter in any year, the Second Quarter
in the same year;
"Voting Paper" has the meaning given to that term in Clause 15.5.3(a)
or (as the context may require) Clause 15.6.4(a);
"Weighted Vote" means a Generator Weighted Vote or a Supplier Weighted
Vote or the sum of the two for each Pool Member, as the context may require;
"Weighted Votes" means, in relation to a Pool Member, the number of
votes to which such Pool Member is entitled pursuant to Clause 11.2;
"Wh" means watt-hours;
"working day" has the meaning given to that term in the Act; and
"Works Programme Manager" has the meaning given to that term in Clause
5.13.
1.2 Construction of certain references: In this Agreement, except
where the context otherwise requires, any reference to:-
1.2.1 an Act of Parliament or any Part or section or other provision
of, or Schedule to, an Act of Parliament shall be construed,
at the particular time, as including a reference to any
modification, extension or re-enactment thereof then in force
and to all instruments, orders or regulations then in force
and made under or deriving validity from the relevant Act of
Parliament;
1.2.2 another agreement or any deed or other instrument shall be
construed as a reference to that other agreement, deed or
other instrument as the same may have been, or may from time
to time be, amended, varied, supplemented or novated;
1.2.3 an "affiliate" means, in relation to any person, any holding
company or subsidiary of such person or any subsidiary of a
holding company of such person, in each case within the
meaning of sections 736, 736A and 736B of the Companies Act
1985 as substituted by section 144 of the Companies Act 1989
and, if that latter section is not in force at the date of
this Agreement, as if such latter section were in force at
such date;
1.2.4 a "Business Day" means any week day (other than a Saturday) on
which banks are open for domestic business in the City of London;
------------
1.2.5 a "day" means a period of 24 hours (or such other number of
hours as may be relevant in the case of changes for daylight
saving) ending at 12.00 --- midnight;
1.2.6 a "holding company" means, in relation to any person a holding
company of such person within the meaning given to that term in
Clause 1.2.3; ---------------
1.2.7 a "month" means a calendar month;
1.2.8 a "person" includes any individual, partnership, firm,
company, corporation, joint venture, trust, association,
organisation or other entity, in each case whether or not
having separate legal personality;
1.2.9 a "related undertaking" means, in relation to any person, any
undertaking in which such person has a participating interest
as defined by section 260(1) of the Companies Act 1985 as
substituted by section 22 of the Companies Act 1989 and, if
that latter section is not in force at the date of this
Agreement, as if such latter section were in force at such
date;
1.2.10 a "subsidiary" means, in relation to any person, a subsidiary
of such person within the meaning given to that term in Clause
1.2.3; and ----------
1.2.11 a "year" means a calendar year.
For all purposes of this Agreement no Party shall be an associate or a
related undertaking of any other Party only by reason of all or any of
the share capital of any Party being owned directly or indirectly by
the Secretary of State.
1.3 Interpretation:
1.3.1 In this Agreement:-
(a) references to the masculine shall include the feminine
and references in the singular shall include
references in the plural and vice versa;
(b) references to the word "include" or "including" are to
be construed without limitation;
(c) references to time are to London time;
(d) except where the context otherwise requires,
references to a particular Part, Clause, sub-clause,
paragraph, sub-paragraph or Schedule shall be a
reference to that Part, Clause, sub-clause, paragraph,
sub-paragraph or Schedule in or to this Agreement;
(e) except where the context otherwise requires,
references in a Schedule to a particular Section,
sub-section, Annex or Appendix shall be a reference to
that Section, sub-section, Annex or Appendix in or to
that Schedule; and
(f) the table of contents, the headings to each of the
Parts, Clauses, sub-clauses, paragraphs,
sub-paragraphs, Schedules, Sections, sub-sections,
Annexes and Appendices are inserted for convenience
only and shall be ignored in construing this
Agreement.
1.3.2 With respect to Part XV of and Schedule 21 to this Agreement
(but not elsewhere or otherwise):-
(a) in the event that any person is required to give or is
entitled to withhold its consent or approval to terms
and conditions of this Agreement or an Agreed
Procedure or Code of Practice or to any other act,
matter or thing under or referred to in this Agreement
or has agreed to revise such terms and conditions or
an Agreed Procedure or Code of Practice or any
dispensation therefrom, such person shall act in good
faith and be reasonable in giving or withholding of
such consent or approval or in imposing conditions to
such consent or approval or in agreeing revised terms
and conditions of Part XV of or Schedule 21 to this
Agreement or any Agreed Procedure or Code of Practice;
and
(b) where any person is required to perform any act or
give any consent or notification or do any other
thing, it shall, in the absence of any specified time
limit, perform, give or do or (as the case may be)
notify its withholding of its consent or approval to
the same as soon as is reasonably practicable in all
the circumstances.
1.4 Hierarchy: If the provisions of an Agreed Procedure, a Code of
Practice, a Service Line or the Development Policies are inconsistent
with the provisions of this Agreement, the provisions of this Agreement
shall prevail to the extent of such inconsistency. If the provisions of
a Service Line are inconsistent with the provisions of an Agreed
Procedure or a Code of Practice, the provisions of the Service Line
shall prevail to the extent of such inconsistency.
1.5 (a) The Parties undertake to review the Agreed Procedures, the
Codes of Practice and the Service Lines by no later than the
date (the "Review End Date") falling 30 days after the date on
which this Clause 1.5 takes effect in accordance with a
workplan in form and content agreed by the Executive Committee
and the Settlement System Administrator as at the date on
which this Clause 1.5 takes effect, such workplan to include
the principle that ESIS will provide discussion drafts of the
Service Lines to the Executive Committee and that these
redrafts will then be the subject of the joint review by ESIS
and the Executive Committee.
(b) In reviewing the Agreed Procedures, the Codes of Practice
and the Service Lines:-
(i) the product of each Service Line shall remain
unaltered and if any Agreed Procedure or Code of
Practice shall have a product which is part of the
current working practice of ESIS but which is not
currently in a Service Line, that product shall be
incorporated into the relevant Service Line;
(ii) subject to (i) above, each of the Agreed Procedures,
the Codes of Practice and the Service Lines shall be
brought into line with Parties' working practices
current at the date on which this Clause 1.5 takes
effect and made consistent inter se.
(c) Each of the Parties undertakes to comply at all times with its
obligations under or pursuant to the Service Lines
notwithstanding that the same are being reviewed as provided
in this Clause 1.5.
(d) (i) Each of the Parties undertakes to comply at all times
with the Agreed Procedures and the Codes of Practice insofar
as applicable to such Party provided that:-
(A) subject to (B) below, pending completion of
the review of the Agreed Procedures and Codes
of Practice pursuant to this Clause 1.5, if
Parties' working practices current at the
date on which this Clause 1.5 takes effect
are inconsistent with the terms of any Agreed
Procedure or Code of Practice, such working
practices shall prevail (but without
prejudice and subject to the requirements of
Clause 1.5(b)(i)); and
(B) if the review of a Service Line, Agreed
Procedure or Code of Practice pursuant to
this Clause 1.5 is not completed by the
Review End Date then, until it is completed,
the Parties shall continue to comply with the
Parties' working practices then current.
(ii) The Executive Committee shall provide copies of the
Agreed Procedures and Codes of Practice to a Party upon request.
(e) Nothing in this Clause 1.5 shall affect Clause 1.4 or any
other review of Agreed Procedures, Codes of Practice or
Service Lines required or permitted elsewhere pursuant to this
Agreement.
1.6 Obligation on Generators with respect to Availability Declarations: In
respect of each of its Centrally Despatched Generating Units a
Generator shall submit an Availability Declaration or a re-declared
Availability Declaration to ensure that its Genset Offered Availability
and Genset Re-Offered Availability do not exceed at any time the
maximum Gross/Net generation which it, acting as a prudent operator
using Good Industry Practice, would reasonably expect to achieve if
such Centrally Despatched Generating Unit were to be despatched at that
level. In this Clause 1.6 capitalised terms not defined in Clause 1.1
shall have the respective meanings given to them in the Pool Rules.
1.7 1998: The provisions of Schedules 22, 23, 24 and 25 shall have effect.
1.8 1998 Framework Agreement: The Parties and the Meter Operator Parties
agree that, to accommodate the removal of the franchise limit generally
contained in Condition 2 of the Second Tier Supply Licences scheduled
for 31st March, 1998 (the "1998 Programme"), changes may be needed to
this Agreement. The Parties and Meter Operator Parties therefore
authorise the Chief Executive to maintain a document (the "1998
Framework Agreement") which shall contain points of principle and text
relating to the implementation of the 1998 Programme which have been
approved in principle by either the Executive Committee or Pool Members
in general meeting. It is the intention of Pool Members that the 1998
Framework Agreement will be revised as further principles and/or text
are agreed by the Executive Committee or Pool Members in general
meeting so that, in good time before 31st March, 1998, the 1998
Framework Agreement will contain all text necessary to be included in
this Agreement in order to implement the 1998 Programme.
Notwithstanding the Agreement of Pool Members or the Executive
Committee to the inclusion of such principles and/or text in the 1998
Framework Agreement, it is agreed by the Parties and Meter Operator
Parties that no part of the 1998 Framework Agreement shall have effect
or shall alter, amend or replace any part of this Agreement until
included in this Agreement by way of a supplemental agreement hereto
and the process in this Clause 1.8 shall not bind or commit any Party
or Meter Operator Party or otherwise affect in any way the rights and
discretions of any Party or Meter Operator Party to withhold or qualify
its agreement to any supplemental agreement to this Agreement.
2. THE EFFECTIVE DATE
Commencement: The rights and obligations of each of the Parties
under this Agreement shall commence on the Effective Date.
3. ADDITIONAL PARTIES
3.1 General: Subject to the following provisions of this Clause 3, the
Parties shall admit as an additional party to this Agreement any person
(the "New Party") (not, for the avoidance of doubt, being a successor
Settlement System Administrator, Pool Funds Administrator, Grid
Operator or Ancillary Services Provider, to which the provisions of
Clause 3.11, 3.12, 3.13 or, as the case may be, 3.14 apply) who applies
to be admitted, in the capacity or, as the case may be, capacities
requested by the New Party.
3.2 Admission Application: A New Party wishing to be admitted as an
additional party to this Agreement shall complete an Admission
Application and shall deliver it to the Executive Committee together
with the fee (which shall be non-refundable) and other documents (if
any) therein specified.
3.3 Executive Committee response:
3.3.1 Upon receipt of any Admission Application duly completed the
Executive Committee shall notify (for information only) all
Parties and the Director of such receipt and of the name of
the New Party.
3.3.2 Within 60 days after receipt of a duly completed Admission
Application from a New Party the Executive Committee shall
notify the New Party and the Director either:-
(a) that the New Party shall be admitted as a Party, in which
event the provisions of Clause 3.6 shall apply; or
(b) that the Executive Committee requires the New Party to
produce evidence satisfactory to the Executive Committee
("Additional Evidence") demonstrating the New Party's
fulfilment of the admission conditions relevant to it set
out in its Admission Application, in which event the
provisions of Clause 3.4 shall apply.
If the Executive Committee shall fail so to notify the New
Party and the Director, the New Party may within 28 days after
the expiry of the said 60 day period refer the matter to the
Director pursuant to Clause 3.5, in which event the provisions
of that Clause shall apply.
3.4 Additional Evidence: Within 28 days (or such longer period
as the Executive Committee in its absolute discretion may
allow) after the Executive Committee has given notice
pursuant to Clause 3.3.2(b) the New Party shall:-
3.4.1provide the Executive Committee with the Additional
Evidence, in which event the provisions of Clause 3.6 shall
apply; or
3.4.2 refer the matter to the Director pursuant to Clause 3.5, in which
event the provisions of that Clause shall apply,
failing which the New Party's application for admission shall lapse and
be of no effect and the New Party shall not be, and shall not be
entitled to be, admitted as a Party consequent upon such application
(but without prejudice to any new application for admission it may make
thereafter).
3.5 Reference to the Director:
3.5.1 If:-
(a) any dispute shall arise between the Executive
Committee and a New Party over whether the New Party
has fulfilled the admission conditions relevant to it;
or
(b) the Executive Committee shall have failed to notify the New
Party as provided in Clause 3.3 within the 60 day period
therein specified,
the issue of whether the New Party has fulfilled the admission
conditions relevant to it may be referred by way of written
application of the New Party, copied to the Executive
Committee, to the Director for determination. The
determination of the Director, which shall be made within 28
days after receipt of the said written application and shall
be to the effect set out in paragraph (a) or (b) of Clause
3.5.2, shall be final and binding for all purposes. The
Director shall publish reasons supporting his determination.
3.5.2 (a) If the determination is to the effect that the New
Party has fulfilled the said admission conditions, the
New Party shall be admitted and the provisions of
Clause 3.6 shall apply.
(b) If the determination is to the effect that the New
Party has not fulfilled the said admission conditions,
the New Party's application for admission shall lapse
and be of no effect and the New Party shall not be,
and shall not be entitled to be, admitted as a Party
consequent upon such application (but without
prejudice to any new application it may make
thereafter).
3.6 Admission: If:-
3.6.1 the Executive Committee shall notify the New Party and the
Director as provided in Clause 3.3.2(a); or
3.6.2 following a request for Additional Information pursuant to
Clause 3.3.2(b), the New Party provides the same within the
period specified in Clause 3.4; or
3.6.3 the New Party is to be admitted as a Party pursuant to
Clause 3.5,
the Executive Committee shall forthwith prepare or cause to be prepared
an Accession Agreement. Subject to the Executive Committee making all
notifications and filings (if any) required of it for regulatory
purposes and obtaining all regulatory consents and approvals (if any)
required to be obtained by it, the Executive Committee shall instruct
the Chief Executive or another person authorised by the Executive
Committee for the purpose to prepare an Accession Agreement and to sign
and deliver the Accession Agreement on behalf of all Parties other than
the New Party and the New Party shall also execute and deliver the
Accession Agreement and, on and subject to the terms and conditions of
the Accession Agreement, the New Party shall become a Party for all
purposes of this Agreement with effect from the date specified in such
Accession Agreement (and, if no such date is so specified, the date of
such Accession Agreement). The New Party shall pay all costs and
expenses associated with the preparation, execution and delivery of its
Accession Agreement. Each Party hereby authorises and instructs the
Chief Executive and each person authorised for the purpose by the
Executive Committee to sign on its behalf Accession Agreements and
undertakes not to withdraw, qualify or revoke such authority and
instruction at any time. The Executive Committee shall promptly notify
all Parties and the Director of the execution and delivery of each
Accession Agreement.
3.7 Additional Agreements: Upon and as a condition of admission as a Party,
a New Party shall execute and deliver such further agreements and
documents and shall do all such other acts, matters and things as the
Executive Committee may reasonably require.
3.8 Application fees: All fees received by the Executive Committee in
respect of any application by a New Party to become a Party shall be
used to defray the costs and expenses of the Executive Committee and
shall be paid to such account as the Executive Committee may direct.
The application fee shall be (pound)250 or such other amount as the
Executive Committee may, with the prior approval of the Director, from
time to time prescribe.
3.9 Compliance: Each Party shall procure that for so long as it is a Party
it shall at all times satisfy or otherwise comply with the admission
conditions set out in its Admission Application applicable to it
(and/or such further or other conditions as the Executive Committee may
from time to time reasonably specify) and upon request from time to
time shall promptly provide the Executive Committee with evidence
reasonably satisfactory to the Executive Committee of such satisfaction
and compliance.
3.10 Change of capacities:
3.10.1 Any Founder Generator, any Founder Supplier, any Externally
Interconnected Party and any Party admitted as an additional
party to this Agreement pursuant to this Clause 3 may, upon
application to the Executive Committee and satisfaction of
such conditions (if any) as the Executive Committee may
reasonably require, change the capacity(ies) in which it
participates as a Party.
3.10.2 If upon receipt of any Admission Application the Executive
Committee shall consider that the New Party should either:-
(a) not be admitted as a Party in the capacity in which it has
applied so to be admitted but should be admitted in another
capacity; or
(b) be admitted both in the capacity in which it has applied so
to be admitted and in another capacity,
then the Executive Committee shall within the period specified
in Clause 3.3.2 notify the New Party and the Director
accordingly and shall specify what, if any, additional
evidence the Executive Committee requires the New Party to
produce to demonstrate its fulfilment of the admission
conditions relevant to its admission in such other
capacity(ies). The provisions of Clauses 3.4, 3.5 and 3.6
shall apply mutatis mutandis but as if the references therein
to Additional Evidence were read and construed as references
to the said additional evidence.
3.11 Successor Settlement System Administrator: Any successor Settlement
System Administrator requiring to be admitted as a Party in that
capacity shall, upon application to the Executive Committee, be so
admitted by way of Accession Agreement modified insofar as is necessary
to take account of the capacity in which such successor is to be
admitted. The provisions of Clause 3.6 shall apply mutatis mutandis to
any such admission.
3.12 Successor Pool Funds Administrator: Any successor Pool Funds Administrator
appointed in accordance with the provisions of Schedule 15 shall be
admitted as a Party in that capacity at such time and on such terms and
conditions as the Executive Committee may reasonably require.
3.13 Successor Grid Operator: Any successor Grid Operator requiring to be
admitted as a Party in that capacity shall, upon application to the
Executive Committee, be so admitted by way of Accession Agreement
modified insofar as is necessary to take account of the capacity in
which such successor is to be admitted. The provisions of Clause 3.6
shall apply mutatis mutandis to any such admission.
3.14 Successor Ancillary Services Provider: Any successor Ancillary Services
Provider requiring to be admitted as a Party in that capacity shall,
upon application to the Executive Committee, be so admitted by way of
Accession Agreement modified insofar as is necessary to take account of
the capacity in which such successor is to be admitted. The provisions
of Clause 3.6 shall apply mutatis mutandis to any such admission.
PART II
OBJECTS, REVIEW AND PRIORITY
4. OBJECTS AND PURPOSE OF THE AGREEMENT
4.1 Principal objects and purpose: The principal objects and purpose of this
Agreement are:-
4.1.1 to provide a set of rules which, when implemented, will
quantify:-
(a) the financial obligations owed by certain Pool Members
to other Pool Members in respect of the former Pool
Members' purchases of electricity produced or
delivered by such other Pool Members;
(b) the financial obligations owed by the Grid Operator to
the Ancillary Services Provider in respect of the
purchase of Ancillary Services; and
(c) the financial obligations owed by the Grid Operator to
certain Pool Members in respect of Transport Uplift
(exclusive of any element thereof relating to
Ancillary Services);
4.1.2 to establish, maintain and operate efficiently computer and
other systems (whether or not computer related) which will
implement the rules referred to in Clause 4.1.1; and
4.1.3 by following the procedures for amending this Agreement set
out or referred to herein, to keep under review and promote
the implementation, administration and development of the
systems referred to in Clause 4.1.2 in a way which takes into
account, and balances, the respective interests of actual and
potential generators and suppliers of electricity and of
consumers of electricity and providers of Ancillary Services.
4.2 Interpretation: In the construction and interpretation of this Agreement
due regard shall be had to the principal objects and purpose set out in
Clause 4.1.
4.3 Exercise of rights: In exercising its rights under this Agreement, each
Party shall exercise and enforce such rights and perform its
obligations in good faith having due regard both to its own legitimate
commercial interests and the principal objects and purpose set out in
Clause 4.1.
5. TRANSITIONAL ARRANGEMENTS AND REVIEWS
5.1 [Not used].
Transitional Arrangements
5.2 Transitional Arrangements: The Parties acknowledge and agree that the
arrangements described or referred to in the first column of Schedule
12 ("Transitional Arrangements") have been designed as transitional
arrangements only. The Parties undertake with each other to use all
reasonable endeavours (including, where appropriate, through their
representation on the Executive Committee) to give effect to the
principle (the "New Principle") set opposite the relevant Transitional
Arrangement in the second column of Schedule 12 by the date set
opposite such Transitional Arrangement in the third column of that
Schedule. Clauses 5.9 to 5.14 (inclusive) shall have effect in relation
to all Transitional Arrangements.
Regular Reviews
5.3 Conduct of reviews: Within a period (the "Review Period") of six months
beginning on each of the dates referred to in Clause 5.5 (the "Review
Dates") the Executive Committee shall review in consultation with the
Settlement System Administrator and the Pool Auditor the operation in
practice of this Agreement and the Settlement System to assess whether
the principal objects and purpose set out in Clause 4.1 are being or
could be better achieved. In carrying out each such review the
Executive Committee shall give due consideration to any matter referred
to it by any Party, the Pool Auditor, the Director or the Secretary of
State. Clauses 5.5 to 5.15 (inclusive) shall have effect in relation to
the reviews described in this Clause 5.3, and such reviews shall be in
addition to the reviews associated with the Transitional Arrangements.
5.4 [Not used].
5.5 Review Dates: The Review Dates are:-
5.5.1 those dates falling 12 and 24 months after the Effective Date;
5.5.2those dates falling on the last day of each successive period of two
years, the first such period beginning on 30th March, 1992; and
5.5.3 such other date(s) as the Pool Members in general meeting may
from time to time determine.
5.6 Reports: Promptly (and in any event within one month) after the end of
each Review Period the Executive Committee shall prepare or cause to be
prepared a written report of its review containing such matters as are
referred to in Clause 5.7 and a copy of such report shall be sent to
each Party, the Pool Auditor, the Director and the Secretary of State.
5.7 Content of reports: Each report referred to in Clause 5.6 shall set
out:-
5.7.1 the scope of the review conducted;
5.7.2 the matters reviewed and the investigations and enquiries
made;
5.7.3 the findings of such review;
5.7.4 the recommendations (if any) as to the changes to be made to
this Agreement and the Settlement System so as to achieve or
better to achieve the principal objects and purpose set out in
Clause 4.1;
5.7.5 the effect which any such recommendation referred to in Clause
5.7.4 would, if implemented, have on the role of the Pool
Auditor under this Agreement and any comments of the Pool
Auditor thereon;
5.7.6 the financial effects (if any) which any such recommendation
referred to in Clause 5.7.4 would, if implemented, have on Pool Members; and
5.7.7 such other matters as the Executive Committee shall consider
appropriate.
If any Committee Member shall disagree with any of the recommendations
made in any such report, such report shall set out the reasons for such
disagreement and any alternative proposals of such Committee Member.
5.8 General Meeting approval: Within two months after the end of each
Review Period the Executive Committee shall convene an extraordinary
general meeting of Pool Members to consider and, if thought fit,
approve (in whole or in part) the recommendations (the
"Recommendations") made in the report referred to in Clause 5.6. If any
Recommendation is so approved (an "Approved Recommendation") then,
subject to Clause 13.5, the provisions of Clauses 5.9 to 5.14
(inclusive) shall have effect in relation thereto. If any
Recommendation is not so approved, no further action shall be taken in
respect thereof arising from such report.
Works Programme
5.9 Works Programme: In respect of each Transitional Arrangement and each
Approved Recommendation the Executive Committee shall:-
5.9.1 in the case of a Transitional Arrangement, by the date set
opposite such Transitional Arrangement in the fourth column of Schedule 12; and
5.9.2 in the case of an Approved Recommendation, by the date
stipulated by the Pool Members in general meeting or (if no
date is stipulated) within a reasonable time,
prepare (or cause to be prepared) in consultation with the Pool Auditor
a programme (the "Works Programme", which expression shall include any
associated documentation hereinafter referred to in this Clause 5.9)
which programme shall (unless otherwise resolved by the Executive
Committee after consultation with those Parties not being Pool Members
who might reasonably be expected to be affected by the Works Programme)
include:-
(a) a detailed timetable for the implementation of the New
Principle or (as the case may be) the Approved Recommendation,
including (where appropriate) a series of milestone and/or
target dates for the achievement of specified parts of such
programme;
(b) a full explanation of how such New Principle or Approved
Recommendation is to be implemented, including a detailed
analysis of such New Principle or Approved Recommendation and
the objectives which it is intended to achieve, the work
involved, the resources required and the amendments likely to
be required to this Agreement, the Specification and to any
other relevant agreement or document and of any changes
required to be made to the Software or the Hardware; and
(c) an estimate of the cost of such implementation supported by a
breakdown of such cost and a detailed commentary on each
element thereof together with proposals for the recovery of
such cost,
and (unless otherwise resolved by the Executive Committee after
consultation with those Parties not being Pool Members who might
reasonably be expected to be affected by the Works Programme) shall be
supported by:-
(i) any draft legal documentation required to give effect to the amendments
referred to in paragraph (b) above; and
(ii) the outline form of agreement appointing the Works Programme Manager as
project manager for the implementation of the Works Programme (which form
shall, where the Settlement System Administrator is or, in the Executive
Committee's opinion, is likely to be the Works Programme Manager or where
the Works Programme involves changes to the Specification or the Software,
be prepared in consultation with the Settlement System Administrator).
5.10 Review: The Executive Committee shall arrange for a copy of each Works
Programme to be sent to each Party, the Pool Auditor and the Director
for review under cover of a letter setting a deadline for receipt of
comments on such Works Programme (being no earlier than one month and
no later than two months after the date of despatch of copies of the
Works Programme for comment) and indicating to whom such comments
should be addressed. Within such time as is reasonable after the
deadline set for receipt of comments but, in any event, within two
months thereafter, the Executive Committee shall revise (or cause to be
revised) the Works Programme to take into account (so far as it
considers desirable) the comments received from the Parties, the Pool
Auditor and the Director.
5.11 General Meeting referral: As soon as a Works Programme has been revised
as provided in Clause 5.10 (or, if the Executive Committee considers no
such revision desirable, within one month after the deadline set under
Clause 5.10 for receipt of comments on such Works Programme), the
Executive Committee shall convene an extraordinary general meeting of
Pool Members to consider and, if thought fit, approve such Works
Programme (with or without amendment).
5.12 Approval of the Works Programme:
5.12.1 A Works Programme shall not be given effect to unless and
until approved by the Pool Members in general meeting.
Additionally, if a Works Programme or any part thereof shall
involve a matter requiring the approval of Generators or
Suppliers in separate general meeting under Clause 13.2 (a
"Class Issue"), then such Works Programme shall not be given
effect to unless and until approved by the relevant class of
Pool Members.
-----------
If a Works Programme shall not be duly approved (with or
without amendment), then the Executive Committee shall revise
(or cause to be revised) the same to take account of the
wishes of the Pool Members in general meeting and/or (as the
case may be) in separate general meeting and thereafter such
revised Works Programme shall be re-submitted to the Pool
Members in general meeting and, if such revised Works
Programme or any part thereof shall involve a Class Issue, to
the relevant Pool Members in separate general meeting, in each
case for approval (with or without amendment). This revision
and re-submission procedure shall be repeated as often as may
be required until such time as the Pool Members in general
meeting and, as necessary, in separate general meetings
approve the Works Programme.
5.12.2 Notwithstanding the provisions of Clause 5.12.1, the Executive
Committee and each Party shall be entitled at any time prior
to the approval of a Works Programme by the Pool Members in
general meeting and (where required under Clause 5.12.1) by
the relevant class of Pool Members in separate general meeting
to apply to the Director requesting that the implementation of
the New Principle or (as the case may be) the Approved
Recommendation should not proceed or should not proceed in the
manner set out by such Works Programme and, in such event,
effect shall not be given to the Works Programme pending the
determination of the Director and then (subject as provided in
Clause 5.14) only to the extent (if at all) that the Director
in his absolute discretion shall approve.
5.13 Implementation: The implementation of all Works Programmes shall be
project managed by the Settlement System Administrator or (if the
Settlement System Administrator is unable or unwilling so to project
manage) such other person as the Executive Committee shall nominate
(the "Works Programme Manager") upon and subject to such terms and
conditions as are agreed by the Executive Committee with the Works
Programme Manager and the cost thereof recovered in accordance with the
terms of the relevant Works Programme. Cost overruns, liquidated
damages and all other financing costs, incentives and penalties shall
be financed, levied and/or paid at the times and in the manner provided
for in such Works Programme. Costs incurred by the Settlement System
Administrator shall be recovered in accordance with the Charging
Procedure. The Executive Committee shall require the Works Programme
Manager to prepare and submit to the Executive Committee no less
frequently than quarterly a written report giving a detailed commentary
on the progress of implementing each Works Programme, including a
comparison of actual progress made against the timetable set by such
Works Programme and of actual costs incurred against budgeted costs.
5.14 Pool Auditor's approval: At the completion of the work required by each
Works Programme but prior to effect being given to the New Principle or
(as the case may be) the Approved Recommendation the Executive
Committee shall request the Pool Auditor to issue an opinion in form
and content satisfactory to the Executive Committee confirming to all
Parties and the Director that the Pool Auditor has inspected and tested
the arrangements giving effect to the New Principle or (as the case may
be) the Approved Recommendation and is satisfied (without qualification
or reservation) that such arrangements do give effect to the New
Principle or Approved Recommendation in the manner required by the
Works Programme. The Executive Committee shall use all reasonable
endeavours to make (or procure to be made) such modifications to such
arrangements as are necessary to enable the Pool Auditor to give its
opinion without qualification or reservation, and the costs of any such
modification shall be recovered in accordance with the relevant Works
Programme. If the Pool Auditor's opinion can be given only with
qualification or reservation, the Executive Committee shall convene an
extraordinary general meeting of Pool Members and, where required under
Clause 5.12.1, a separate general meeting of Generators and/or (as the
case may be) Suppliers to consider and, if thought fit, approve such
arrangements in the knowledge that the Pool Auditor's opinion can be
given only with qualification or reservation. Subject to the provisions
of Clause 6, each of the Parties undertakes with each of the other
Parties promptly following the issue of the Pool Auditor's opinion
(but, where such opinion has a qualification or reservation, only after
approval as aforesaid by the Pool Members in general meeting and, where
required under Clause 5.12.1, by the relevant class of Pool Members in
separate general meeting) to execute and deliver any amending agreement
or other documents and to take such other action as may reasonably be
required of it to give effect to such arrangements, in any such case at
its own cost and expense.
5.15 Secretary of State's approval: In respect of the Secretary of State's
decision as set out in his letter of 11th December, 1991 to the Chief
Executive concerning the selling of the output of plant by Generators with
on-site demand under this Agreement:-
5.15.1 each of the Parties undertakes with each of the other Parties
forthwith to take all such steps (including as to the
execution of any document) as may be required to give full
force and effect to the decision of the Secretary of State.
Each of the Parties shall take all such steps at its own cost
and expense except that the Settlement System Administrator,
the Pool Funds Administrator and the Ancillary Services
Provider shall be entitled to recover any such costs and
expenses in accordance with the terms of this Agreement; and
5.15.2 each of the Parties acknowledges and agrees that damages would
not be an adequate remedy for any failure by it to give in
accordance with Clause 5.15.1 full force and effect to the
decision of the Secretary of State pursuant to this Clause
5.15 and that, accordingly, each of the other Parties and the
Director shall be entitled to the remedies of injunction,
specific performance and other equitable relief for any
threatened or actual such failure and that no proof of special
damages shall be necessary for enforcement.
5.16 Director's modifications:
5.16.1 Where the Monopolies and Mergers Commission has issued a report on a
reference under section 12 of the Act which:-
(a) includes conclusions to the effect that any of the
matters specified in the reference operate, or may be
expected to operate, against the public interest;
(b) specifies effects adverse to the public interest which
those matters have or may be expected to have;
(c) includes conclusions to the effect that those effects
could be remedied or prevented by modifications of the
conditions of any Licence and such modifications would
require a change to the Pooling and Settlement
Agreement; and
(d) specifies modifications by which those effects could be
remedied or prevented,
the Director may, subject to the following provisions of this
Clause, require such modifications to this Agreement as are
requisite for the purpose of remedying or preventing the
adverse effect specified in the report.
5.16.2 Before requiring modifications to be made pursuant to this
Clause, the Director shall have regard to the modifications
specified in the report. Further, the Director shall not, and
shall not be entitled to, require a modification to be made to
this Agreement which modification could not have been achieved
lawfully through a modification of one or more Licences
consequent upon the report (but as if, for this purpose, only
those Parties who are holders of Licences were parties to this
Agreement).
5.16.3 Before requiring modifications to be made pursuant to this
Clause, the Director shall give notice:-
(a) stating that he proposes to make the modifications and
setting out their effect;
(b) stating the reasons why he proposes to make the
modifications; and
(c) specifying the period (not being less than 28 days from
the date of publication of the notice) within which
representations or objections with respect to the
proposed modifications may be made,
and shall consider any representations or objections from any
person which are duly made and not withdrawn.
5.16.4 A notice under Clause 5.16.3 shall be given:-
(a) by publishing the notice in such manner as the
Director considers appropriate for the purpose of
bringing the matters to which the notice relates to
the attention of persons likely to be affected by the
making of the modifications; and
(b) by serving a copy of the notice on each Party, the
Executive Committee and the Pool Auditor.
5.16.5 After considering any representations or objections which are
duly made and not withdrawn pursuant to Clause 5.16.3, the
Director may by notice published as provided in Clause
5.16.4(a) and served on those referred to in Clause 5.16.4(b)
specify the modifications to this Agreement which he requires
to be made and the date upon which such modifications are to
take effect and each of the Parties undertakes with each other
of the Parties promptly to take all such steps as may be
necessary to give full force and effect to the modifications
so required. Any costs incurred by the Settlement System
Administrator in giving effect to such modifications shall be
recovered in accordance with the Charging Procedure.
6. ENTRENCHED PROVISIONS, INCONSISTENCIES AND CONFLICTS
Entrenched Provisions
6.1 Secretary of State's consent: The Parties acknowledge and agree that,
notwithstanding any other provision of this Agreement, no amendment to
or variation of any of the matters dealt with in any of the following
provisions of this Agreement shall take effect without the prior
written consent of the Secretary of State:-
6.1.1 Clause 5.15, Part XIV and Section 28 of Schedule 9; and
6.1.2 this Clause 6.1.
6.2 Director's consent: The Parties acknowledge and agree that,
notwithstanding any other provision of this Agreement, no amendment to
or variation of any of the matters dealt with in any of the following
provisions of this Agreement shall take effect without the prior
written consent of the Director:-
6.2.1(a) Clauses 3.5, 4, 5.12.2, 5.15, 5.16, 6.11, 11, 13, 15.6, 53.6,
67.3, 67.4, 83, 84 and 85 and Section 8 of Schedule 14 and
Section 7 of Schedule 20;
(b) sub-section 19.1 of Schedule 14; and
(c) paragraphs 1.4, 2.2.3, 3.3, 3.4, 3.7, 4.4.1, 6.4, 6.5, 17.3 and
22.5 of Schedule 21;
6.2.2 without prejudice to Clause 6.2.3, the Pool Rules or any of them,
other than an amendment or variation which:-
(a) involves only a change of a technical nature in the systems,
rules and procedures contemplated by this Agreement; and
(b) will not increase the liability or decrease the rights of any
Party under this Agreement beyond what may reasonably be regarded
as de minimis in relation to such Party,
but in any event including Section 22 thereof;
6.2.3 any provision of this Agreement which requires or permits any
matter to be referred to the Director for approval, consent,
direction or decision or confers any rights or benefits upon
the Director; and
6.2.4 this Clause 6.2.
6.3 Settlement System Administrator's consent: The Parties acknowledge and
agree that, notwithstanding any other provision of this Agreement,
insofar as directly affects in any material respect the rights,
benefits, duties, responsibilities, liabilities and/or obligations of
the Settlement System Administrator no amendment to or variation of any
of the matters dealt with in any of the following provisions of this
Agreement shall take effect:-
6.3.1without the prior written consent of the Settlement System
Administrator:-
(a) the definitions in Clause 1.1 of "Agreed Procedure", "Charging
Procedure", "Code of Practice", "Force Majeure", "Good Industry
Practice", "Hardware", "SSA Arrangements" and "SSA System";
(b) Clauses 6.9, 7.3, 7.6, 9.5, 10.9, 10.10, 19.4, 34.1, 34.2, 35.3,
35.6, 36.2, 37, 66, 68, 69, 74 and 78.2;
(c) Schedule 4;
(d) Sections 1.6 (and its application to any other Section of
Schedule 9), 1.7 and 3 of Schedule 9; and
(e) this Clause 6.3;
6.3.2 without the prior written consent of the Settlement System
Administrator (such consent not to be unreasonably withheld or delayed):-
(a) Clauses 18.1.2, 18.1.4, 19.5, 41, 45, 47.1, 47.3, 48.1, 48.2,
48.9, 60, 70, 71.1, 71.4 and 71.5;
(b) Part XXII (other than Clauses 74 and 78.2);
(c) Section 30 of, and Appendix 4 to, Schedule 9;
(d) Section 2(b) of Part C to Schedule 17; and
(e) paragraphs 4 to 16 (inclusive), 18, 19, 21 and 22 of Schedule 21.
6.4 Pool Funds Administrator's consent: The prior written consent of
the Pool Funds Administrator may be needed to certain amendments
to or variations of this Agreement, as provided in Schedule 15.
6.5 Grid Operator's consent: The Parties acknowledge and agree that,
notwithstanding any other provision of this Agreement, insofar as
directly affects in any material respect the rights, benefits, duties,
responsibilities, liabilities and/or obligations of the Grid Operator,
no amendment to or variation of any of the matters dealt with in any of
the following provisions shall take effect:-
6.5.1 without the prior written consent of the Grid Operator:-
(a) Clauses 6.9, 7.3, 7.6, 9.5, 10.9, 10.10, 19.4, 25, 37.3, 47 to 50
(inclusive), 66, 68, 69, 72, 74 and 78.2;
(b) sub-section 3.1 of Appendix 2 to Schedule 9; and
(c) this Clause 6.5; and
6.5.2 without the prior written consent of the Grid Operator (such
consent not to be unreasonably withheld or delayed), any other
provision of this Agreement,
Provided that the references to Parties and to the Grid Operator in
this Clause 6.5 shall be construed as if they were references to such
terms prior to the creation of Meter Operator Parties and the
associated amendments to this Agreement, but this shall be without
limitation to any right of the Grid Operator to consent to any
amendment or variation to this Agreement under this Clause 6.5.
6.6 Ancillary Services Provider's consent: The Parties acknowledge and
agree that, notwithstanding any other provision of this Agreement,
insofar as directly affects in any material respect the rights,
benefits, duties, responsibilities, liabilities and/or obligations of
the Ancillary Services Provider, no amendment to or variation of any of
the following provisions shall take effect:-
6.6.1 without the prior written consent of the Ancillary Services
Provider:-
(a) Clauses 6.9, 7.3, 7.6, 9.5, 10.9, 10.10, 19.4, 25, 52.3, 66, 68,
69, 72, 74 and 78.2;
(b) Part XI and the provisions expressly incorporated therein by
reference;
(c) Sections 1.8, 23, 24.8 and 28 of Schedule 9; and
(d) this Clause 6.6; and
6.6.2 without the prior written consent of the Ancillary Services
Provider (such consent not to be unreasonably withheld or
delayed), any other provision of this Agreement.
6.7 Amendments generally:
6.7.1 The following provisions of this Clause 6.7 are without
prejudice to the rights, powers and privileges of the
Secretary of State and the Director under the Act or any
Licence or otherwise howsoever.
6.7.2 In relation to Schedule 4 (including its Appendix), and save
as provided in Clause 6.7.3, where that Schedule provides for
an amendment to the SSA Arrangements, the Menus of Prices or
the Variation Menus (or any or any part thereof) to be agreed
between certain designated persons and those persons agree in
writing the amendment to be made, then the SSA Arrangements,
the Menu of Prices or, as the case may be, the Variation Menus
(or the relevant one or part thereof) shall be so amended
without the need for any other Party to execute or deliver any
amending or confirmatory document and each Party hereby
consents to such amendments being made in such a manner and
undertakes not to withdraw that consent.
6.7.3 In the following cases the amendment procedure set out in Clause
6.7.2 shall itself be modified as hereinafter provided:-
(a) if Schedule 4 refers to "formal documentation" being agreed to
give effect to the amendment, an amending agreement executed by
all Parties shall be required;
(b) if the consent of a particular person is required to be obtained
under Clauses 6.1 to 6.6 (inclusive), the amendment shall not
take effect until that consent has been obtained.
6.7.4 Subject to:-
(a) any consent of a particular person required to be obtained under
Clauses 6.1 to 6.6 (inclusive) being obtained;
(b) the requirements of Clauses 6.7.5 and 13.2,
and save as provided otherwise in this Agreement, any
amendment to or variation of this Agreement shall be effective
if approved by Pool Members in general meeting pursuant to
Clause 13.1 or 13.2 and all Parties agree promptly to execute
and deliver all agreements and other documentation and to do
all such other acts, matters and things as may be necessary to
give effect to such amendment or variation.
6.7.5 Where any change is proposed to be made to this Agreement which,
if made:-
(a) would introduce provisions dealing with matters not then
dealt with in or expressly contemplated by this Agreement; and
(b) would in any material respect directly affect the
rights, benefits, duties, responsibilities,
liabilities and/or obligations under this Agreement of
the Settlement System Administrator, the Grid
Operator, the Ancillary Services Provider and/or any
Externally Interconnected Party,
such change shall not be made without the prior written
consent of the relevant one of them (in each case not to be
unreasonably withheld or delayed) provided that the reference
to the Grid Operator in this Clause 6.7.5 shall be construed
as if it was a reference to such term prior to the creation of
Meter Operator Parties and the associated amendments to this
Agreement, but this shall be without limitation to any right
to consent to any amendment or variation of this Agreement
under this Clause 6.7.5.
Inconsistencies and Conflicts
6.8 Internal inconsistencies and conflicts: In the event of any
inconsistency or conflict:-
6.8.1 the Pool Rules shall prevail over the other provisions of this
Agreement (except Clause 4);
6.8.2 the provisions of this Agreement shall prevail over the
Specification; and
6.8.3 the Specification shall prevail over the Software,
and the Parties shall use all reasonable endeavours promptly to secure
the elimination of such inconsistency or conflict.
6.9 External inconsistencies and conflicts:
6.9.1 Each of the Parties hereby acknowledges and agrees the
desirability of achieving and maintaining consistency and
absence of conflict between the provisions of this Agreement
and the Grid Code but recognises that, due principally to the
different functions and objectives of this Agreement and the
Grid Code, the fact that there may be Parties who are not
bound by the Grid Code and the different procedures in this
Agreement and the Grid Code for review of their respective
terms, it will not in all circumstances be possible to avoid
inconsistency or conflict.
6.9.2 Where at the Effective Date there is an inconsistency or
conflict between the provisions of this Agreement and the Grid
Code the Executive Committee shall first consider the matter
and make recommendations and thereafter the Parties shall
negotiate in good faith to eliminate such inconsistency and/or
conflict having regard to the different functions and
objectives of the Grid Code and this Agreement.
6.9.3 Each of the Parties shall use its reasonable endeavours to
ensure that where any change to this Agreement is proposed to
be made which may reasonably be expected to require a change
to the Grid Code (or vice versa) such change is brought by the
Executive Committee to the attention of the Grid Code Review
Panel in good time to enable it to consider what corresponding
change, if any, should be made to the Grid Code or (as the
case may be) this Agreement. In any such consideration, the
Parties acknowledge and agree that it would be desirable in
the event of any inconsistency or conflict between the
provisions of this Agreement and the Grid Code if regard were
had by the Grid Code Review Panel to the principles set out in
Clause 6.9.4.
6.9.4 The principles referred to in Clause 6.9.3 are that:-
(a) where by reason of any inconsistency or conflict the
security, quality of supply and/or safe operation of
the NGC Transmission System under both normal and/or
abnormal operating conditions would necessarily be
compromised and/or the Grid Operator would necessarily
be in breach of its obligations under the Act or its
Transmission Licence, the provisions of this Agreement
should be made to conform (to the extent of such
inconsistency or conflict) to those of the Grid Code;
and
(b) in any other case, where by reason of such
inconsistency or conflict there is or is likely to be
a material financial effect on any class of Pool
Members or on all or a significant number of Pool
Members, the provisions of the Grid Code should be
made to conform (to the extent of such inconsistency
or conflict) to those of this Agreement.
6.9.5 The Parties acknowledge that changes to the Grid Code are
required to be approved by the Director.
6.9.6 Where there is any conflict or inconsistency between the Grid
Code and the Pool Rules, no Party shall be liable hereunder or
under the Grid Code as a result of complying with its
obligations under this Agreement or under the Grid Code.
6.10 Breaches of the Pool Rules: If at any time any Party believes
that there has been a breach of the Pool Rules, such Party shall
promptly report the same in writing to the Executive Committee.
6.11 Director's requests: The Executive Committee shall:-
(i) give due and prompt consideration to any matter referred to it in
writing by the Director;
(ii) advise the Director in writing of any decision or action of the
Executive Committee in relation to such matter;
(iii) provide the Director in writing with an explanation in reasonable
detail of the reasons for such decision or action; and
(iv) if reasonably requested by the Director (having regard, in
particular, to the resources available to the Executive
Committee), in relation to any proposal by the Director for a
change to any provision of this Agreement provide or procure
the provision of advice and assistance to the Director as soon
as reasonably practicable as to the implications of the change
and the actions necessary to implement it (including any
relevant feasibility study).
PART III
POOL MEMBERSHIP AND GENERAL MEETINGS
7. INTRODUCTION
7.1 Obligations contractually binding: Each Pool Member acknowledges
and agrees that it is bound to each other Pool Member as a matter
of contract and will comply with its obligations under this
Agreement.
7.2 Externally Interconnected Parties: Each Externally Interconnected Party
acknowledges and agrees that it is bound to each Pool Member as a
matter of contract and undertakes to comply with the Pool Rules so far
as they may be applicable to it and each Pool Member acknowledges and
agrees that it is bound to each Externally Interconnected Party as a
matter of contract and will comply with its obligations under this
Agreement.
7.3 Parties not Pool Members: The Settlement System Administrator, the Pool
Funds Administrator, the Grid Operator and the Ancillary Services
Provider shall not be Pool Members and shall not be bound as against
other Pool Members or the Executive Committee except as expressly
provided for in this Agreement, the Escrow Agreement and the Funds
Transfer Agreement in their respective roles as Settlement System
Administrator, Pool Funds Administrator, Grid Operator and Ancillary
Services Provider.
7.4 Pool Rules:
7.4.1 The Pool Rules as at 1st April, 1996 are set out in Schedule
9. The Settlement System calculations shall be carried out on
the basis of the Settlement System and the Pool Rules.
7.4.2 The Pool Rules shall be developed under the control of the
Executive Committee. Subject to Clause 6, the Executive
Committee may at any time and from time to time change all or
any of the Pool Rules upon notification to all Parties and
Meter Operator Parties, and any such change shall be binding
on all Parties and Meter Operator Parties without further
action being required on the part of any person.
7.5 Pool Member's obligations:
7.5.1 Save as otherwise expressly provided in this Agreement, the
obligations of each Pool Member under this Agreement are
several and a Pool Member shall not be responsible for the
obligations or liabilities of any other Pool Member. The
failure of any Pool Member to carry out all or any of its
obligations under this Agreement shall not relieve any other
Pool Member of all or any of its obligations hereunder.
7.5.2 In respect of those obligations of a Pool Member (the
"Indemnifying Pool Member") under this Agreement which are
expressed to be several, the Indemnifying Pool Member shall
indemnify and keep indemnified each other Pool Member from and
against all losses, costs (including legal costs) and expenses
which such other Pool Member may suffer or incur as a result
of being held liable by operation of law (or contesting any
such liability) for the performance or non-performance of all
or any of such obligations of the Indemnifying Pool Member.
7.6 Information: In respect of all data and other information which a Pool
Member or an Externally Interconnected Party (not being a Pool Member)
is required to notify to the Settlement System Administrator under or
pursuant to this Agreement (other than (i) Metered Data (as defined in
paragraph 3.1.2 of Schedule 9) and (ii) pursuant to paragraph 2.3.2 of
Schedule 9, the relevant Pool Member or (as the case may be) Externally
Interconnected Party shall use all reasonable endeavours to ensure that
all such data and other information is complete and accurate in all
material respects.
8. POOL MEMBERSHIP
8.1 Initial Pool Members: The initial Pool Members shall be the Founder
Generators and the Founder Suppliers.
8.2 Additional Pool Members:
8.2.1 Subject to the following provisions of this Clause 8.2 and
Clause 8.13 and to the fulfilment by the Party concerned of
the conditions set out or referred to in Clause 8.3 (the "Pool
Membership Conditions"), any Party shall, upon application to
the Executive Committee, be admitted as a Pool Member.
8.2.2 For the purposes of this Clause 8, "Party" shall include any
person who is applying to be admitted as a Party pursuant to
Clause 3 contemporaneously with being admitted as a Pool
Member but shall exclude the Settlement System Administrator,
the Pool Funds Administrator, the Grid Operator and the
Ancillary Services Provider.
8.2.3 Subject to Clause 8.2.4, the admission of a Party as a Pool
Member shall take effect on the date (the "Admission Date")
specified by the Executive Committee (with the prior agreement
of the Settlement System Administrator) in a notice given by
the Executive Committee to the relevant Party no later than 28
days after the Satisfaction Date, provided that the Admission
Date shall be a date falling no earlier than the Satisfaction
Date and (unless otherwise agreed by the Executive Committee,
the Settlement System Administrator and such Party) no later
than 90 days after the Satisfaction Date. In default of such
notification being given by the Executive Committee within the
said 28 days, the admission shall take effect on the day
falling 35 days after the Satisfaction Date. For the purposes
of this Clause, the "Satisfaction Date" shall be the day on
which the last of the Pool Membership Conditions required to
be fulfilled by such Party shall have been fulfilled by it.
8.2.4 No person shall be admitted as a Pool Member unless prior to
or contemporaneously with such admission it shall have been or
(as the case may be) shall be admitted as a Party.
8.2.5 Prior to a Party's admission as a Pool Member the Executive
Committee shall, where appropriate, determine and notify the
relevant Party of the amount of Security Cover (if any) to be
provided by such Party.
8.3 Pool Membership Conditions:
8.3.1 Where a person has been admitted as a Party pursuant to Clause
3 otherwise than contemporaneously with being admitted as a
Pool Member pursuant to Clause 8, the Pool Membership
Conditions applicable to it shall (unless otherwise determined
by the Director upon the application of such person or the
Executive Committee) be those that would have been applicable
to it if it had applied to be admitted as a Pool Member at the
date of its admission as a Party and, subject as aforesaid,
such person shall not be required to fulfil any further or
other Pool Membership Conditions introduced after such date
unless the applicant notifies the Executive Committee in
writing prior to or contemporaneously with its application for
admission as a Pool Member that it wishes such further or
other conditions to apply, in which case the Pool Membership
Conditions applicable to it shall (subject as aforesaid) be
those applicable on the date of its application for admission
as a Pool Member.
8.3.2 The Pool Membership Conditions required to be fulfilled by a
Party prior to its admission as a Pool Member are:-
(a) the due completion by the Party and the delivery to the
Executive Committee of a Pool Membership Application;
(b) in respect of any Metering System required to be taken into
account for the purposes of Settlement and which relates to
the Party, the provision of evidence reasonably satisfactory
to the Executive Committee that:-
(i) there is a Registrant and an Operator for such Metering
System;
(ii) such Registrant has provided to the
Settlement System Administrator the
information required for standing data
purposes as required by this Agreement or the
relevant Agreed Procedure; and
(iii) such Metering System conforms with the
requirements of Part XV, all relevant Agreed
Procedures and all Codes of Practice and is
compatible with the Settlement System;
(c) the Party has entered into and has in full force and
effect all appropriate Connection Agreements or, if
the Party is applying to be admitted as an External
Pool Member, that all appropriate Connection
Agreements with the relevant Externally Interconnected
Party in relation to the relevant Interconnection are
in full force and effect;
(d) the provision of such information as the Executive
Committee may reasonably require to enable the
Executive Committee to ascertain whether any of the
provisions of Clause 11.4 are applicable to that
Party, to determine whether that Party is an
Independent Generator, Small Generator and/or
Independent Supplier and to calculate the initial
Weighted Votes and Points of that Party as a Pool
Member under Clause 11.3 and Schedule 13 respectively;
(e) the provision of such information as the Executive
Committee may reasonably require:-
(i) to enable the Executive Committee to
ascertain whether (and, if so, on what basis)
that Party is entitled to take the benefit of
any exception in Clause 8.5 claimed by it;
and
(ii) to assist the Executive Committee in making any
determination under Clause 8.5 relevant to that Party;
(f) if the Party is a Generator (other than an External
Pool Member), the provision of evidence reasonably
satisfactory to the Executive Committee that the Party
operates or has under its control one or more
Generating Units, which Generating Unit(s) has (have)
provided electricity to the Total System or will be
capable of so providing electricity within such period
as the Executive Committee may specify; and
(g) if the Party is an External Pool Member, the provision
of evidence reasonably satisfactory to the Executive
Committee that the Party has the right to use one or
more Generation Trading Blocks and/or the right to
take electricity across an External Interconnection
under an Interconnection Agreement then in full force
and effect.
8.4 Compliance: Each Pool Member shall procure that for so
long as it is a Pool Member it shall at all times
satisfy or otherwise comply with those Pool Membership
Conditions (whether set out in this Agreement or in its
Pool Membership Application) applicable to it (and/or
such further or other conditions as the Executive
Committee may from time to time reasonably specify).
Each Pool Member shall upon request from time to time
promptly provide the Executive Committee with such
information as the Executive Committee may reasonably
require (i) to enable the Executive Committee to
ascertain whether (and, if so, on what basis) that Pool
Member is entitled to take the benefit of any exception
in Clause 8.5 claimed by it, and (ii) to assist the
Executive Committee in making any determination under
Clause 8.5 relevant to that Party, and further with
evidence reasonably satisfactory to the Executive
Committee of such satisfaction and compliance.
8.5 Restrictions applicable to Pool Members:
8.5.1 At each of its Sites, or where any such Site forms part of a
Trading Site, such Trading Site, each Generator shall sell its
entire Exports of electricity to Pool Members pursuant to this
Agreement except:-
(a) for its Exports of electricity from any generating
station in respect of which (but for other generating
stations owned or operated by it) it would not be
required to hold a Generation Licence, being Exports
at any Site or, as the case may be, Trading Site for
which the Generator is not required to complete a
Supplemental Agreement to the Master Connection and
Use of System Agreement
Provided that the Generator has given the Executive Committee
either on the Effective Date or not less than 10 Business Days
before that Site or, as the case may be, Trading Site is
withdrawn from the requirements of this provision, written
notice that the circumstances described in sub-paragraph (a)
apply; or
(b) for the output of electricity from any of its
Generating Units in circumstances which the Executive
Committee resolves by a vote passed by 80 per cent. or
more of the votes of all Committee Members (after
consultation with the Director) are exceptional.
8.5.2 In respect of all its requirements for electricity which a
Supplier wishes to purchase from Pool Members, the Supplier
shall purchase the same pursuant to this Agreement, provided
that nothing in this Agreement shall prevent or restrict the
purchase by a Supplier otherwise than pursuant to this
Agreement:-
(a) in circumstances where the Supplier is acting
otherwise than in its capacity as a consumer, of all
or part of that output of electricity from any
Generating Unit which is not required to be sold to
Pool Members pursuant to Clause 8.5.1 or of
electricity which has been purchased by an External
Pool Member at its associated External Interconnection
as an export from the NGC Transmission System pursuant
to this Agreement; or
(b) in circumstances where the Supplier is acting in its
capacity as a consumer:-
(i) of electricity from any Supplier which has purchased
that electricity pursuant to this Agreement; or
(ii) of such output of electricity as is referred to in
paragraph (a) above; or
(c) in circumstances where the Supplier is a Supplier
holding a PES Licence and is acting in its capacity as
a PES, of electricity from any Supplier which is a
Supplier holding a PES Licence, which operates a
Distribution System directly connected to the
Distribution System operated by the Supplier first
mentioned in this paragraph (c) and which has
purchased that electricity pursuant to this Agreement;
or
(d) in circumstances which the Executive Committee resolves
by a vote passed by 80 per cent. or more of the votes
of all Committee Members (after consultation with the
Director) are exceptional, from any person.
For the purposes of this Clause 8.5.2 a "consumer" means a
person who purchases electricity from a Supplier for its own
consumption at premises owned or occupied by that person.
8.6 Restrictions applicable to non-Pool Members: Save as otherwise expressly
provided, a Party which is not a Pool Member shall not be entitled to any
of the rights and benefits accorded to Pool Members under this Agreement.
8.7 Resignation: Subject as provided in Clause 8.8:-
8.7.1 a Party (other than the Settlement System Administrator, the
Pool Funds Administrator, the Grid Operator, the Ancillary
Services Provider and each Externally Interconnected Party)
shall be entitled at any time to resign as a Party by
delivering a Resignation Notice to the Secretary; and
8.7.2such resignation shall take effect 28 days after receipt of the
Resignation Notice by the Secretary.
Promptly after receipt of a duly completed Resignation Notice from a
Party, the Secretary shall notify (for information only) all of the
other Parties, the Executive Committee and the Director of such receipt
and of the name of the Party wishing to resign.
8.8 Restrictions on resignation: A Party may not resign as a Party
(and any Resignation Notice delivered pursuant to Clause 8.7.1
shall lapse and be of no effect) unless:-
8.8.1 as at the date its resignation would otherwise become
effective all sums due from such Party to the Executive
Committee or any other Party under (a) this Agreement, (b) the
Funds Transfer Agreement or (c) any agreement entered into
pursuant to this Agreement (whether by or on behalf of such
Party) and notified for the purposes of this Clause 8.8 by the
Executive Committee to such Party prior to the date of its
resignation, have been paid in full; and
8.8.2 it would not be a breach of any Licence condition applicable to
such Party so to resign.
8.9 Release as a Party: Without prejudice to Clause 66.7 and its accrued
rights and liabilities and its rights and liabilities which may accrue
in relation to the period during which it was a Party under this
Agreement, the Funds Transfer Agreement or any agreement referred to in
Clause 8.8.1(c), upon a Party's resignation becoming effective in
accordance with Clause 8.7:-
8.9.1 such Party (if it is a Pool Member) shall cease automatically to
be a Pool Member;
8.9.2 such Party shall be automatically released and discharged from
all its obligations and liabilities under this Agreement, the
Funds Transfer Agreement and any agreement referred to in
Clause 8.8.1(c); and
8.9.3 each of the other Parties shall be automatically released and
discharged from its obligations and liabilities to such Party
under this Agreement, the Funds Transfer Agreement and any
agreement referred to in Clause 8.8.1(c).
Each Party shall promptly at its own cost and expense execute and
deliver all agreements and other documentation and do all such other
acts, matters and things as may be necessary to confirm such cessation,
release and discharge.
8.10 Withdrawal as a Party: If a Party (the "Withdrawing Party") shall apply
on three occasions to be admitted as a Pool Member pursuant to this
Clause 8 and on each such occasion it is not so admitted by reason of
its failure to fulfil the relevant Pool Membership Conditions then with
effect from the date the Withdrawing Party is deemed to receive
notification from the Executive Committee pursuant to Clause 75 that it
has failed for the third time to fulfil such conditions, without
prejudice to Clause 66.7 and its accrued rights and liabilities, and
its rights and liabilities which may accrue in relation to the period
during which it was a Party, under any agreement entered into pursuant
to this Agreement (whether by or on behalf of the Withdrawing Party)
and notified to it for the purposes of this Clause 8.10 by the
Executive Committee prior to the date of its cessation as a Party:-
8.10.1 the Withdrawing Party shall automatically cease to be a Party
and shall be automatically released and discharged from all
its obligations and liabilities under this Agreement and any
such agreement;
8.10.2 each of the other Parties shall be automatically released and
discharged from its obligations and liabilities to the
Withdrawing Party under this Agreement and any such agreement;
and
8.10.3 each Party shall promptly, at the cost and expense of the
Withdrawing Party, execute and deliver all agreements and
other documentation and do all such other acts, matters and
things as may be necessary to confirm such cessation, release
and discharge.
8.11 External Pool Members: A person who has been admitted as an External Pool
Member shall immediately cease to be a Pool Member (such cessation to be
without prejudice to Clause 66.7) upon either:-
8.11.1 all of its rights under an Interconnection Agreement to use
the relevant External Interconnection(s) for taking or
delivering electricity from or to the NGC Transmission System
having permanently ceased; or
8.11.2 the relevant External Interconnection(s) permanently ceasing to
be connected to the NGC Transmission System.
8.12 Change of capacities: Any Pool Member may, upon application to the
Executive Committee and satisfaction of those of the Pool Membership
conditions relevant to its new capacity and such other conditions (if
any) as the Executive Committee may reasonably require, change the
capacity(ies) in which it participates as a Pool Member and any Pool
Member who acquires an additional capacity in which it participates as
a Pool Member shall be deemed to have been admitted as a new Pool
Member pursuant to Clause 8.2 in that additional capacity.
8.13 Saving: The Executive Committee shall have the right to waive
compliance by a Party with all or any of the Pool Membership Conditions
either absolutely or on terms if, in the opinion of the Executive
Committee, this is necessary to ensure or help ensure that the
Settlement process operates efficiently or that the interests of other
Pool Members are safeguarded.
9. GENERAL MEETINGS
9.1 Annual general meeting: Once in, and no later than 31st March of, each
year Pool Members shall hold a general meeting as their annual general
meeting in addition to any other meetings of Pool Members in that year,
and notices calling such general meeting shall specify it as the annual
general meeting. At each annual general meeting the Pool Members shall
be required to consider and, where appropriate, resolve upon the
following, namely:-
9.1.1 a business plan prepared by the Executive Committee for the
next following Accounting Period and the four Accounting
Periods thereafter (or for such shorter period as the Pool
Members in general meeting shall from time to time determine)
in relation to the operation of the Settlement System and the
Funds Transfer System and all other matters which are the
subject of this Agreement;
9.1.2 a report prepared by the Executive Committee, which report
shall include:-
(a) a review against the business plan prepared by the
Executive Committee for the current Accounting Period
including a reconciliation based on the then latest
available figures against budget for all items within
such business plan for that Accounting Period;
(b) a review of the operation of the Settlement System and the
Funds Transfer System during that Accounting Period;
(c) a report on the performance by the Settlement System
Administrator of its obligations under Schedule 4 and the related
Service Lines during that Accounting Period;
(d) a report on the performance by the Pool Funds Administrator of
its obligations under Schedules 11 and 15 during that Accounting
Period;
(e) a report on the performance of the Chief Executive's
Office (taken as a whole) during that Accounting Period; and
(f) such other information or matters as the Executive
Committee shall consider appropriate (including any
proposed revision to this Agreement);
9.1.3 the appointment of Committee Members pursuant to Clause 15;
9.1.4 the election of the Pool Chairman pursuant to Clause 16;
9.1.5 such matters as any Pool Member present in person may wish to
raise at such meeting, notice of which has been given to the
Secretary no later than seven days before the date of such
meeting, it being acknowledged and agreed that failure by a
Pool Member so to notify shall not prejudice the right of any
Pool Member to ask questions at such meeting on any matter
then before such meeting; and
9.1.6 such other matters as the Executive Committee sees fit to propose
and of which notice has been given in accordance with Clause 9.4.1.
9.2 General meetings: All general meetings of Pool Members other than
annual general meetings shall be extraordinary general meetings.
9.3 Calling meetings: All general meetings of Pool Members shall be
called by 14 days' notice in writing at the least, provided that
a general meeting of Pool Members shall, notwithstanding that it
is called by shorter notice, be deemed to have been duly called
if it is so agreed by a majority in number of the Pool Members
having a right to attend and vote at such meeting, being a
majority in number together holding not less than 95 per cent. of
the Total Weighted Votes.
9.4 Convening meetings:
9.4.1 An annual general meeting shall be convened by the Secretary
on the instructions of the Executive Committee and any notice
convening such a meeting shall set out or append details of
any such matters as are referred to in Clause 9.1.6 and shall
be accompanied by a copy of the business plan referred to in
Clause 9.1.1 and of the report referred to in Clause 9.1.2.
The Secretary shall use its reasonable endeavours to notify
the Pool Chairman and Pool Members in advance of the relevant
annual general meeting of any such matters referred to in
Clause 9.1.6 of which the Secretary has received notice in
accordance with that Clause.
9.4.2 Extraordinary general meetings shall be convened:-
(a) by the Secretary on the instructions of the Executive Committee
or of any one or more Committee Members pursuant to Clause 13.4;
or
(b) by the Executive Committee, forthwith upon receipt of a Pool
Members' requisition being a requisition of Pool Members holding
together at the date of the deposit of the requisition not less
than two per cent. of the Total Weighted Votes of all Pool
Members; or
(c) by the Secretary on the instructions of the Pool Chairman.
9.4.3 A Pool Members' requisition shall state the objects of the
meeting and must be signed by or on behalf of the
requisitionists and deposited at the office of the Secretary,
and may consist of several documents in like form each signed
by one or more requisitionists. If the Executive Committee
does not within 21 days from the date of the deposit of the
requisition proceed duly to convene an extraordinary general
meeting for a date not later than two months after the said
date of deposit, the requisitionists may themselves convene a
meeting, but any meeting so convened shall not be held after
the expiration of three months from such date. A meeting
convened under this Clause 9.4 by requisitionists shall be
convened in the same manner, as nearly as possible, as that in
which meetings are to be convened by the Executive Committee.
9.5 Notice of general meetings: Any notice convening any general
meeting of Pool Members shall be exclusive of the day on which it
is served or deemed to be served and of the day for which it is
given, and shall specify the place, the day and the hour of the
meeting and the general nature of the business of such meeting
and shall be given to all Parties, all Committee Members, the
Pool Chairman, the Chief Executive (if any), the Pool Auditor and
the Director. The accidental omission to give notice of a meeting
to, or the non-receipt of notice of a meeting by, any person
entitled to receive notice shall not invalidate the proceedings
at that meeting. In every such notice there shall appear with
reasonable prominence a statement that a Pool Member entitled to
attend and vote is entitled to appoint a proxy to attend, speak
and (subject to Clause 12.1) vote in its place and that a proxy
need not also be a Pool Member.
9.6 Annual conference:
9.6.1 In each year, on a date falling as near as practicable to, but
in any event not later than, eight months after the
immediately preceding annual general meeting, a meeting of
Pool Members shall be convened and held which shall not be the
annual general meeting but which may (but need not) be
convened as an extraordinary general meeting (the "Annual
Conference").
9.6.2 At the Annual Conference a report shall be presented by the
Executive Committee on the matters referred to in Clause
9.1.2, such report to cover the period commencing on the day
after the immediately preceding annual general meeting and
ending on the day falling one calendar month before the date
for which the Annual Conference has been convened. In
addition, the Executive Committee shall arrange for such other
matters to be discussed, presentations to be made and Pool
Member activities to be organised at the Annual Conference as
it may resolve to be appropriate.
9.7 Pool Auditor's Report:
9.7.1 The Secretary shall provide to all Pool Members annually by
the last day of the first Quarter following the end of the
then most recent Accounting Period a copy of a report prepared
by the Pool Auditor on the Settlement System and its operation
during such Accounting Period (the "Pool Auditor's Report").
9.7.2 The Pool Auditor's Report shall include:
(i) a summary of the audits, reviews, tests and/or checks referred to
in Part IX carried out by the Pool Auditor during that Accounting
Period;
(ii) any recommendation which the Pool Auditor wishes to make
regarding the operation of the Settlement System, the Charging
Procedure, the PFA Accounting Procedure, the ASP Accounting
Procedure and/or the Funds Transfer System; and
(iii)such other information or matters which the Executive Committee
may reasonably require or the Pool Auditor shall consider
appropriate.
9.7.3 If the Executive Committee so resolves, the Secretary shall
convene a meeting of all Pool Members in order to discuss the
Pool Auditor's Report.
10. PROCEEDINGS AT GENERAL MEETINGS
10.1 General: Save as provided in Clause 12.8 and Part IV, all
business of Pool Members shall be transacted at general meetings
of Pool Members, the proceedings for the conduct of which are set
out in this Clause 10.
10.2 Quorum: No business shall be transacted at any general meeting of
Pool Members unless a quorum of Pool Members is present at the
time when the meeting proceeds to business. Save as herein
otherwise provided, a quorum shall be Pool Members present in
person representing:-
10.2.1 50 per cent. or more of the aggregate number of Weighted Votes
to which all Generators are entitled under Clause 11.2.1; and
10.2.2 50 per cent. or more of the aggregate number of Weighted Votes
to which all Suppliers are entitled under Clause 11.2.2.
10.3 Lack of quorum: If within half an hour from the time appointed for the
general meeting a quorum is not present, the meeting shall stand
adjourned to the same day in the next week, at the same time and place
or to such other day and at such other time and place as the Executive
Committee may determine and, if at the adjourned meeting a quorum is
not present within half an hour from the time appointed for the
meeting, the Pool Member(s) present shall be a quorum.
10.4 Chairman: The Pool Chairman shall preside as chairman at every
general meeting and separate general meeting of Pool Members
(other than one convened to consider his removal) or, if there is
no Pool Chairman or if he shall not be present within 15 minutes
after the time appointed for the holding of the meeting or is
unwilling to act or if the relevant meeting has been convened to
consider the removal of the Pool Chairman, the Chief Executive
(if any) shall preside as chairman or, if the Chief Executive
shall not be present or is unwilling to act or if the relevant
meeting has been convened to consider the removal of the Chief
Executive, the Pool Members present shall choose one of their
number to be chairman of the meeting.
10.5 Adjournments: The chairman of the meeting may, with the consent of any
general meeting of Pool Members at which a quorum is present (and shall
if so directed by the meeting) adjourn the meeting from time to time
and from place to place, but no business shall be transacted at any
adjourned meeting other than the business left unfinished at the
meeting from which the adjournment took place. When a meeting is
adjourned for 30 days or more, notice of the adjourned meeting shall be
given as in the case of an original meeting. Save as aforesaid, it
shall not be necessary to give any notice of an adjournment or of the
business to be transacted at an adjourned meeting.
10.6 Demand for a poll: At any general meeting of Pool Members a resolution put
to the vote of the meeting shall be decided on a show of hands unless a
poll is (before or on the declaration of the result of the show of hands)
demanded:-
10.6.1 by the chairman of the meeting; or
10.6.2 by at least two Pool Members present in person or by proxy; or
10.6.3 by any Pool Member present in person or by proxy and holding
not less than two per cent. of the Total Weighted Votes of all
Pool Members.
Unless a poll be so demanded a declaration by the chairman of
the meeting that a resolution has on a show of hands been
carried or carried unanimously, or by a particular majority,
or lost and an entry to that effect in the book containing
minutes of the proceedings of general meetings shall be
conclusive evidence of the fact without proof of the number or
proportion of the votes recorded in favour of or against such
resolution. The demand for a poll may be withdrawn.
10.7 Timing of poll: Except as hereinafter provided in this Clause 10.7, if
a poll is duly demanded it shall be taken in such manner as the
chairman of the meeting directs, and the result of the poll shall be
deemed to be the resolution of the meeting at which the poll was
demanded. A poll demanded on the election of the chairman of the
meeting or on a question of adjournment shall be taken forthwith. A
poll demanded on any other question shall be taken at such time as the
chairman of the meeting directs, and any business other than that upon
which a poll has been demanded may be proceeded with pending the taking
of the poll.
10.8 No casting vote: In the case of an equality of votes, whether on a show
of hands or on a poll, the chairman of the meeting at which the show of
hands takes place or at which the poll is demanded, shall not be
entitled to a second or casting vote.
10.9 Representation of non-Pool Members: Each of the Chief Executive (if
any) or his duly appointed representative, the Settlement System
Administrator, the Pool Funds Administrator, the Grid Operator and the
Ancillary Services Provider shall be obliged to attend, and each other
Party, each Committee Member, the Pool Auditor and the Director (or its
or his duly appointed representative) shall have the right to attend,
at each general meeting of Pool Members, and each of them shall have
the right to speak (but not to vote) thereat.
10.10 Minutes: The Secretary shall prepare minutes of all general meetings of
Pool Members and shall circulate copies thereof to all Parties, each
Committee Member, the Pool Chairman, the Chief Executive (if any), the
Pool Auditor and the Director as soon as practicable (and in any event
within ten working days) after the relevant meeting has been held.
11. VOTING
11.1 Membership Votes: Each Pool Member shall be entitled to one vote
by reason of its Pool Membership (its "Membership Vote").
---------------
11.2 Weighted Votes: Subject as provided in the following provisions
of this Clause 11, in respect of any Quarter:-
11.2.1 each Pool Member which is a Generator shall be entitled in that
capacity to one vote (each such vote a "Generator Weighted Vote")
for each GWh of Genset Metered Generation of all its Allocated
Generating Units for all Settlement Periods falling in the Votes
Calculation Period relative to such Quarter, as determined from
the final run of Settlement for each such Settlement Period and
with the number of GWh being rounded up or down (0.5 being
rounded upwards) to the nearest whole number;
11.2.2 the number of votes (each a "Supplier Weighted Vote") to which
a Pool Member which is a Supplier shall be entitled in that
capacity shall be calculated in accordance with the following
formula:-
GWV x SV
(SIGMA) SV
where:
SV is equal to the total GWh of Consumer Metered
Demand taken by the relevant Pool Member in
all Settlement Periods falling in the Votes
Calculation Period relative to the relevant
Quarter, as determined from the final run of
Settlement for each such Settlement Period
and with the number of GWh being rounded up
or down (0.5 being rounded upwards) to the
nearest whole number;
GWV is the total number of Generator Weighted Votes of all
Pool Members for the relevant Quarter; and
(SIGMA) means summed over the total SV of all Pool Members
for the relevant Quarter,
provided that the total number of Supplier Weighted Votes
shall at all times equal the total number of Generator
Weighted Votes and if, as a result of the foregoing, such
would not be the case, the Pool Member with the greatest
number of Generator Weighted Votes or of Supplier Weighted
Votes calculated as aforesaid shall have deducted that number
of Weighted Votes of the relevant class as will ensure that
the total number of Supplier Weighted Votes equals the total
number of Generator Weighted Votes.
For the purposes of this Clause 11.2:-
(a) a Generating Unit shall be an Allocated Generating
Unit of a Pool Member (in this Clause, the
"Identified Pool Member") if it belongs to the
Identified Pool Member as of the date on which the
Executive Committee calculates the Weighted Votes of
Pool Members for the relevant Quarter pursuant to
Clause 11.3.2. If at any time during such Quarter an
Allocated Generating Unit shall belong to another
Pool Member (in this Clause, the "Transferee Pool
Member"), the Weighted Votes attributed to the
Identified Pool Member for such Quarter by reason of
the Allocated Generating Unit belonging to it shall
(subject to Clause 11.4) be transferred to the
Transferee Pool Member as of the date on which such
Allocated Generating Unit first belongs to the
Transferee Pool Member (and the Identified Pool
Member and the Transferee Pool Member shall jointly
notify the Executive Committee in writing of such
date in good time before its occurrence);
(b) a Generating Unit shall belong to a Pool Member if it
is owned by that Pool Member and not leased to
another person or if it is leased by that Pool Member
from another person;
(c) a Pool Member shall notify the Executive Committee
promptly on request of its Allocated Generating Units
and the Executive Committee and each other Party may
rely on the information in that notification and in
any notification under paragraph (a) above without
further enquiry or need to verify that information;
(d) in determining the meaning of "good time" for the
purposes of paragraph (a) above one factor to be
taken into account is that the Settlement System
Administrator must be allowed sufficient time to
effect the necessary changes in Settlement associated
with the transfer of the relevant Allocated
Generating Unit; and
(e) the Executive Committee may, upon application of any
Pool Member involved in any transfer of assets
between Pool Members during any Quarter, adjust as
between the Pool Members involved in such transfer,
the number of Points and/or Weighted Votes to which
they in their capacities as Suppliers are entitled in
respect of the remaining part of that Quarter and/or
one or both of the two immediately succeeding
Quarters if, in the opinion of the Executive
Committee, such adjustment would help accommodate the
consequences of such a transfer and not prejudice the
interests of any other Pool Member in any material
respect.
11.3 Calculation of Weighted Votes: Subject as provided in
the following provisions of this Clause 11:-
11.3.1 New Pool Members:
(a) until the third Quarter Day next falling after the
date of its admission as a Pool Member, any Party who
is admitted as a Pool Member pursuant to Clause 8.2
shall have that number of Weighted Votes as fall to be
determined in accordance with the following provisions
of this Clause 11.3.1. Thereafter, such Pool Member's
Weighted Votes shall be calculated in accordance with
Clause 11.2;
(b) until the third Quarter Day next falling after the
date of admission of the relevant Pool Member as a
Pool Member, such Pool Member shall have that number
of Generator Weighted Votes and/or Supplier Weighted
Votes as are accorded to it upon its admission as a
Pool Member by the Executive Committee (which the
Executive Committee shall do prior to the date of such
admission) who shall have regard to the factors listed
in paragraphs (c), (d) and/or (as the case may be) (e)
below or as are determined by the Director in
accordance with Clause 11.5;
(c) the factors referred to in paragraph (b) shall in the
case of a Generator include:-
(i) the Registered Capacity of all Generating Units of such
Generator;
(ii) the Executive Committee's assessment of the
likely availability of all such Generating
Units for the period from the date of
admission of such Pool Member as a Pool
Member to the third Quarter Day next falling
after such date, having regard to the
registered Generation Scheduling and Despatch
Parameters or (as the case may be) Generation
Trading Block Scheduling and Despatch
Parameters for such Generating Units;
(iii) the Executive Committee's assessment of the
likely output of all such Generating Units
during such period having regard to the
output of Generating Units which in the
Executive Committee's opinion most nearly
correspond to such Generating Units;
(iv) the Executive Committee's assessment of the
likely daily station load associated with the
Power Stations of which such Generating Units
form part during such period; and
(v) where a Generating Unit of an existing Pool
Member is transferred to, and then belongs
to, such Generator at or soon after the time
of such Generator's admission as a Pool
Member, the Generator Weighted Votes most
recently attributed to that existing Pool
Member by reason of that Generating Unit
shall be attributed to such Generator as if
such Generator were a Transferee Pool Member
under the provisions of paragraph (a) of
Clause 11.2;
(d) the factors referred to in paragraph (b) above shall
in the case of a Supplier be the total GWh which would
be supplied by the relevant Supplier in the period
from the date of admission of such Pool Member as a
Pool Member to the third Quarter Day next falling
after such date on the basis of its Customers' metered
demand or, where such metered information is not
available, the load profiles of its Customers used for
the purposes of estimating the consumption of Second
Tier Customers; and
(e) the factors referred to in paragraph (b) above shall
in the case of an External Pool Member be whichever
one or more of those factors referred to in paragraph
(c) above and those referred to in paragraph (d) above
as the Executive Committee considers to be most
readily applicable to the Generating Units (if any) of
such Pool Member and to the level of demand for Active
Energy of that Pool Member across the relevant
External Interconnection but as if the references to
Customers in paragraph (d) were references to that
Pool Member's own requirements;
11.3.2 Calculation: on or prior to each Quarter Day and on
each admission, resignation or removal of a Party as a
Pool Member or change in the capacity in which it
participates as a Pool Member the Executive Committee
shall, on the basis of information to be supplied by
the Settlement System Administrator in accordance with
Service Line 10 (Service to CEO and Pool Members),
calculate the number of Weighted Votes to which each
Pool Member whose Weighted Votes are to be calculated
in accordance with Clause 11.2 is entitled in its
capacity as a Generator or a Supplier for the Following
Quarter (or, in the case of an admission, resignation
or removal of a Party as a Pool Member or a change in
the capacity in which it participates as a Pool Member,
for the remainder of the then current Quarter), and
shall notify each Pool Member and the Director in
writing of the number of Generator Weighted Votes and
Supplier Weighted Votes of all Pool Members (whether
calculated in accordance with Clause 11.2 or 11.3.1).
Subject to Clauses 11.5 and 11.6, the determination of
the Executive Committee as to the number of Generator
Weighted Votes and Supplier Weighted Votes of each Pool
Member shall (in the absence of manifest error) be
final and binding for all purposes of this Agreement;
11.3.3 Attribution: if a Pool Member shall not receive any
Weighted Vote by reason of the calculations under
Clause 11.2 or the foregoing provisions of this Clause
11.3, such Pool Member shall nevertheless be accorded
one Generator Weighted Vote and/or one Supplier
Weighted Vote, depending on the capacity(ies) in which
it is participating as a Pool Member; and
11.3.4 Additional capacity: for the purposes of this Clause 11 any
Pool Member who acquires an additional capacity in which it
participates as a Pool Member shall be deemed to have been
admitted as a new Pool Member pursuant to Clause 8.2 in that
additional capacity and until the third Quarter Day next
falling after the date such Pool Member's application to the
Executive Committee pursuant to Clause 8.12 is approved, it
shall have that number of Weighted Votes in that additional
capacity as fall to be determined in accordance with the
provisions of Clause 11.3.1. Thereafter, such Pool Member's
Weighted Votes shall be calculated in accordance with Clause
11.2.
11.4 Cap on Weighted Votes:
11.4.1 The aggregate number of Weighted Votes to which a Pool Member
shall be entitled (in whatever capacity) under Clauses 11.2 and
11.3 shall not at any time exceed 15 per cent. of the Total
Weighted Votes.
11.4.2 The aggregate number of Weighted Votes to which all Pool
Members which are members of the same Pool Member's Group are
entitled (in whatever capacity) under Clauses 11.2 and 11.3
shall not at any time exceed 15 per cent. of the Total
Weighted Votes.
11.4.3 If, by virtue of the number of Weighted Votes accorded to a
Pool Member or to Pool Members which are members of the same
Pool Member's Group pursuant to Clauses 11.2 and/or 11.3, a
Pool Member or Pool Members would in the absence of this
Clause 11.4.3 be in breach of Clause 11.4.1 or 11.4.2, the
number of Weighted Votes to which that Pool Member or (as the
case may be) those Pool Members which are members of the same
Pool Member's Group shall be entitled shall be determined as
follows:-
(a) in the case of a Pool Member which would otherwise be
in breach of Clause 11.4.1, the aggregate number of
Weighted Votes to which that Pool Member shall be
entitled shall be reduced by such number (in this
paragraph (a) the "Redistributed Votes") as will
ensure that, after redistribution of its Weighted
Votes in accordance with Clause 11.4.5, such Pool
Member shall have as nearly as practicable (but not in
excess of) 15 per cent. of the Total Weighted Votes.
The Redistributed Votes shall:-
(i) consist of that number of Weighted Votes in excess of
15 per cent. of the Total Weighted Votes to which the
relevant Pool Member is entitled; and
(ii) comprise Generator Weighted Votes and Supplier Weighted
Votes in the same proportion (as nearly as practicable)
as the total number of Generator Weighted Votes and
Supplier Weighted Votes of that Pool Member (before
such redistribution) bear one to the other;
(b) in the case of Pool Members which are members of the
same Pool Member's Group and which would otherwise be
in breach of Clause 11.4.2, the aggregate number of
Weighted Votes to which those Pool Members shall be
entitled shall be reduced by such number (in this
paragraph (b), the "Redistributed Votes") as will
ensure that, after redistribution of their Weighted
Votes in accordance with Clause 11.4.6, such Pool
Members shall together have as nearly as practicable
(but not in excess of) 15 per cent. of the Total
Weighted Votes. The Redistributed Votes shall:-
(i) consist of that number of Weighted Votes in
excess of 15 per cent. of the Total Weighted
Votes to which all Pool Members which are
members of that Pool Member's Group are, in
aggregate, entitled;
(ii) comprise Generator Weighted Votes and
Supplier Weighted Votes in the same
proportion (as nearly as practicable) as the
total number of Generator Weighted Votes and
Supplier Weighted Votes of all Pool Members
which are members of that Pool Member's Group
(before such redistribution) bear one to the
other; and
(iii) be taken from each Pool Member which is a
member of that Pool Member's Group (in the
case of Redistributed Votes which are
Generator Weighted Votes) in the proportion
(as nearly as practicable) which that Pool
Member's Generator Weighted Votes (if any)
bear to the total number of Generator
Weighted Votes of all Pool Members which are
members of that Pool Member's Group and (in
the case of Redistributed Votes which are
Supplier Weighted Votes) in the proportion
(as nearly as practicable) which that Pool
Member's Supplier Weighted Votes (if any)
bear to the total number of Supplier Weighted
Votes of all Pool Members which are members
of that Pool Member's Group; and
(c) in the case where both paragraphs (a) and (b) above
apply in respect of a Pool Member, the provisions of
paragraph (a) above shall be applied before those of
paragraph (b) above.
11.4.4 Subject to Clause 11.4.7, where more than one Pool Member or
Pool Member's Group would, in the absence of Clause 11.4.3, be
in breach of Clause 11.4.1 or (as the case may be) 11.4.2, the
redistribution of Weighted Votes pursuant to Clause 11.4.5 or
(as the case may be) 11.4.6 shall commence with the Pool
Member or Pool Member's Group that has the greatest percentage
of Total Weighted Votes, shall continue with the Pool Member
or Pool Member's Group with the next greatest percentage and
so on, and the process of redistributing Weighted Votes in
accordance with such Clauses shall continue until such time as
no Pool Member or Pool Member's Group is in breach of Clause
11.4.1 or 11.4.2.
11.4.5 Where Clause 11.4.3(a) applies, the Redistributed Votes shall
(subject as provided in Clauses 11.4.7 and 11.4.8) be allocated as follows:-
(a) the Redistributed Votes which are Generator Weighted
Votes shall be allocated across all other Pool Members
in the proportions (as nearly as practicable) which
their respective Generator Weighted Votes bear to each
other (such proportions to be calculated before any
redistribution of Weighted Votes pursuant to this
Clause 11.4); and
(b) the Redistributed Votes which are Supplier Weighted
Votes shall be allocated across all other Pool Members
in the proportions (as nearly as practicable) which
their respective Supplier Weighted Votes bear to each
other (such proportions to be calculated before any
redistribution of Weighted Votes pursuant to this
Clause 11.4).
11.4.6 Where Clause 11.4.3(b) applies, the Redistributed Votes shall
(subject as provided in Clauses 11.4.7 and 11.4.8) be allocated as follows:-
(a) the Redistributed Votes which are Generator Weighted
Votes shall be allocated across all other Pool Members
which are not members of the relevant Pool Member's
Group in the proportions (as nearly as practicable)
which their respective Generator Weighted Votes bear
to each other (such proportions to be calculated
before any redistribution of Weighted Votes pursuant
to this Clause 11.4); and
(b) the Redistributed Votes which are Supplier Weighted
Votes shall be allocated across all other Pool Members
which are not members of the relevant Pool Member's
Group in the proportions (as nearly as practicable)
which their respective Supplier Weighted Votes bear to
each other (such proportions to be calculated before
any redistribution of Weighted Votes pursuant to this
Clause 11.4).
11.4.7 Redistributed Votes shall not be allocated pursuant to Clause
11.4.5 or 11.4.6 to any Pool Member which before such
allocation is or, but for Clause 11.4.3, would be in breach of
Clause 11.4.1 or 11.4.2.
11.4.8 Any allocation of Redistributed Votes in accordance with the
foregoing provisions of this Clause 11.4 shall not be effected
in the case of votes amounting to fractions of whole numbers
and any Redistributed Votes which are incapable of allocation
as a result of this or any other provision of this Clause 11.4
("Fractional Redistributed Votes") shall, in the case of
Generator Weighted Votes, be allocated automatically to the
largest Generator in terms of Genset Metered Generation for
the relevant Quarter or, in the case of Supplier Weighted
Votes, to the largest Supplier in terms of Consumer Metered
Demand for the relevant Quarter, to the extent that this does
not cause a breach of Clause 11.4.1 or Clause 11.4.2.
Thereafter, any unallocated Fractional Redistributed Votes
shall be allocated in accordance with this Clause 11.4.8 to
the next such largest Generator and/or Supplier and the
process shall continue until all Fractional Redistributed
Votes have been so allocated.
11.5 New Pool Member's reference to the Director: If any Pool Member
referred to in Clause 11.3.1(a) shall dispute the calculation of or the
number of Weighted Votes accorded to it in accordance with Clause
11.3.1, such Pool Member may refer such dispute to the Director for
determination, whose determination as to the calculation of or the
number of Weighted Votes to which such person shall be entitled shall
be final and binding for all purposes of this Agreement.
11.6 Alteration of Weighted Votes: The Director may at any time by notice to
the Executive Committee alter the calculation of Weighted Votes set out
in Clauses 11.2.1 and 11.2.2 and/or the caps on Weighted Votes set out
in Clauses 11.4.1 and 11.4.2 if, in his opinion, such alteration is
required to achieve fair representation for all Pool Members.
11.7 Pool Member Group Information: Each Pool Member shall provide the
Executive Committee with such details of its Pool Member Group as the
Executive Committee may at any time and from time to time reasonably
require for the purposes of this Clause 11 and such Pool Member shall
be deemed to warrant to all other Pool Members that all such details
are true and accurate in all material respects as at the date they are
provided to the Executive Committee.
The Executive Committee may rely on such details without further
enquiry or need to verify them.
11.8 [Not used]
11.9 Records: The Executive Committee shall maintain, and retain for a
period of not less than eight years, a register recording the Generator
Weighted Votes and Supplier Weighted Votes of each Pool Member, which
register shall be open for inspection by any Party at the office of the
Secretary during normal business hours.
11.10 Voting on a show of hands: On a show of hands every Pool Member
present in person shall have only its Membership Vote (that is, one
vote).
11.11 Voting on a poll: On a poll every Pool Member shall have only its
Weighted Votes. On a poll votes may be given either personally or by
proxy.
11.12 Objections: No objection shall be raised to the qualification of any
voter except at the meeting or adjourned meeting at which the vote
objected to is given or tendered, and every vote not disallowed at such
meeting shall be valid for all purposes. Any such objection made in due
time shall be referred to the chairman of the meeting whose decision
shall be final and conclusive.
11.13 Scrutiny: At each meeting at which a Pool Member casts a vote, the
Secretary or another person specifically appointed for the purpose by
the Secretary shall ensure that proper scrutiny of all such votes takes
place, such that he is entirely satisfied that every vote cast was so
cast properly and in accordance with all relevant provisions of this
Agreement and any other applicable agreement between all Pool Members
or rules or regulations governing such votes.
12. PROXIES
12.1 Authority: Any Pool Member entitled to attend and vote at any general
meeting of Pool Members shall be entitled to appoint another person
(whether a Pool Member or not) as its proxy to attend, speak and vote
in its place, save that a proxy shall not be entitled to vote except on
a poll.
12.2 Authentication of proxy: The instrument appointing a proxy shall be in
writing either under seal or under the hand of an officer or attorney
duly authorised. A proxy need not be a Pool Member.
12.3 Deposit of proxy: The instrument appointing a proxy and the power of
attorney or other authority, if any, under which it is signed or a
certified copy of that power or authority shall be deposited at the
office of the Secretary or at such other place within the United
Kingdom as is specified for that purpose in the notice convening the
relevant general meeting of Pool Members, not less than 48 hours before
the time for holding the meeting or adjourned meeting, at which the
person named in the instrument proposes to vote, or, in the case of a
poll, not less than 24 hours before the time appointed for the taking
of the poll, and in default the instrument of proxy shall not be
treated as valid.
12.4 Form of proxy (1): An instrument appointing a proxy shall be in the
following form or a form as near thereto as circumstances admit:-
"POOLING AND SETTLEMENT AGREEMENT FOR THE ELECTRICITY INDUSTRY IN
ENGLAND AND WALES dated 30th March, 1990
We, , of , being a Pool Member (as defined in the above-mentioned
Agreement), hereby appoint of or, failing him, of , as our proxy
to vote for us on our behalf at the [annual or extraordinary, as
the case may be] general meeting of Pool Members, to be held on
the day of 19 , and at any adjournment thereof.
Signed this day of 19 ."
12.5 Form of proxy (2): Where it is desired to afford Pool Members an
opportunity of voting for or against a resolution the instrument appointing
a proxy shall be in the following form or a form as near thereto as
circumstances admit:-
"POOLING AND SETTLEMENT AGREEMENT FOR THE ELECTRICITY INDUSTRY IN ENGLAND AND
WALES dated 30th March, 1990
We, , of , being a Pool Member (as defined in the above-mentioned Agreement),
hereby appoint of or, failing him, of , as our proxy to vote for us on our
behalf at the [annual or extraordinary, as the case may be] general meeting
of Pool Members, to be held on the day of 19 , and at any adjournment
thereof.
Signed this day of 19 .
This form is to be used in favour of the resolution.
against
Unless otherwise instructed, the proxy will vote as he thinks fit.
Strike out whichever is not desired."
12.6 Authority to demand a poll: The instrument appointing a proxy shall be
deemed to confer authority to demand or join in demanding a poll.
12.7 Proxy valid: A vote given in accordance with the terms of an instrument
of proxy shall be valid notwithstanding the previous revocation of the
proxy or of the authority under which the proxy was executed, provided
that no intimation in writing of such revocation shall have been
received by the Secretary at his office before the commencement of the
meeting or adjourned meeting at which the proxy is used.
12.8 Resolution in writing: A resolution in writing signed by all the Pool
Members for the time being entitled to receive notice of and to attend
and vote at general meetings of Pool Members (or by their duly
authorised representatives) shall be as valid and effective as if the
same had been passed at a general meeting of Pool Members duly convened
and held and may consist of several instruments in like form and
executed by or on behalf of one or more Pool Members.
12.9 Corporations acting by representatives at meetings: Any company,
corporation, partnership, firm, joint venture, trust, association or
other organisation which is a Pool Member may by resolution of its
directors or other governing body authorise such person as it thinks
fit to act as its representative at any general meeting of Pool
Members, and references in this Agreement to a Pool Member acting in
person (howsoever expressed) shall be deemed to include Pool Members
acting by their duly authorised representatives.
13. MATTERS RESERVED TO THE GENERAL MEETING: CLASS RIGHTS
13.1 Matters reserved generally:
13.1.1 As between the Pool Members each of the matters referred to in
Clause 13.1.2 shall require the prior approval of Pool Members
in general meeting before effect is given to the same, such
approval to be (subject as provided in Sections 15, 16 and 17
of Schedule 4) by resolution of Pool Members passed by not
less than 65 per cent. of the Membership Votes or (as the case
may be) Weighted Votes of such Pool Members as (being entitled
to do so) vote in person or by proxy at a general meeting of
Pool Members of which notice specifying the intention to
propose the resolution has been duly given.
13.1.2 The matters referred to in Clause 13.1.1 are:-
(a) the removal of the Settlement System Administrator;
(b) the appointment and removal of the Pool Auditor;
(c) any amendment to or variation of this Agreement (other
than any amendment or variation referred to in Clause
13.2.1, 13.2.2 or 13.2.3 or any amendment of or
variation to Schedule 9 (including any amendment
thereto made pursuant to Clause 56.2) or to Schedule
15);
(d) the approval pursuant to Clause 5.8 of any
Recommendation and pursuant to Clause 5.11 of any Works
Programme and any approval pursuant to Clause 5.14;
(e) the removal of the Pool Chairman; and
(f) such other matters (not being matters referred to in
Clause 9.1.8) which are otherwise designated under
this Agreement for reference to the Pool Members in
general meeting.
13.2 Matters reserved to particular classes of Pool Members:
13.2.1 As between the Pool Members any amendment to or variation of
this Clause 13.2 shall require the prior approval of the
Generators in separate general meeting.
13.2.2 As between the Pool Members each of the following matters shall
require the prior approval of the Suppliers in separate general meeting:-
(a) any change prior to 1st April, 1998 to the standards of accuracy
of Metering Equipment required for Second Tier Customers up to
(and including) 100kW or required for Non-Pooled Generators;
(b) any amendment to or variation of Part XI and/or Schedule 18; and
(c) any amendment to or variation of this Clause 13.2.
13.2.3 As between the Pool Members any amendment to or variation of
Clauses 10.2, 10.6, 13.4, 13.5, 15, 16.2, 19.2, 22 or 83, or
this Clause 13.2 shall, in addition to the applicable
requirements of Clauses 13.2.1 and 13.2.2, require the prior
approval of Pool Members in general meeting, such approval to
be by resolution of Pool Members passed by not less than 84
per cent. of the Membership Votes or (as the case may be)
Weighted Votes of such Pool Members as (being entitled to do
so) vote in person or by proxy at a general meeting of Pool
Members of which notice specifying the intention to propose
the resolution has been duly given.
13.2.4 To every separate general meeting referred to in this Clause
13.2 the provisions of this Part III relating to general
meetings of Pool Members (other than Clause 10.9, save in
respect of the attendance by the Pool Auditor or the Director
or its or his duly appointed representative) shall apply
mutatis mutandis but so that:-
(a) in the case of the Generators, the necessary quorum
shall be two Pool Members of that class;
(b) in the case of the Suppliers, the necessary quorum shall
be eight Pool Members of that class; and
(c) notice of any such separate general meeting need be given
only to those entitled to attend the same,
and any resolution put to any such separate general meeting
shall, to be passed, require (in the case of the Generators)
75 per cent. and (in the case of the Suppliers) a simple
majority of the Membership Votes or (as the case may be)
Weighted Votes of such Pool Members as (being entitled to do
so) vote in person or by proxy at such separate general
meeting of which notice specifying the intention to propose
the resolution has been duly given provided that any such
resolution shall be deemed passed if it would have been passed
but for the resolution being opposed by a single Pool Member
or one or more Pool Members of a single Pool Member's Group.
13.2A As between the Pool Members any amendment to or variation of Schedule
22 shall require the approval of the Public Electricity Suppliers in
separate general meeting in accordance with the provisions of that
Schedule.
13.3 Provisions cumulative: The provisions of Clauses 13.1 and 13.2 are
cumulative and not exclusive one of the other.
13.4 Executive Committee's referral: in the event of receipt by the
Secretary from one or more of the Committee Members of a request that
any matter resolved upon on a poll by the Executive Committee (or upon
which it has been unable or has refused to resolve other than where the
taking of a vote has been deferred pursuant to Clause 22.1) be remitted
to the Pool Members in general meeting, such request having been
received no later than five working days after the date on which the
results of such poll were notified to Committee Members (exclusive of
the date on which notice was given) (or, as the case may be, the date
of its failure or refusal so to resolve), the matter the subject of the
relevant resolution shall be remitted to the Pool Members in general
meeting and, pending the decision of Pool Members in general meeting,
such resolution shall not have effect. The provisions of this Clause
13.4 are subject to the provisions of Clause 61.9.
13.5 Dissentient Pool Member's right of appeal:-
13.5.1 Any Pool Member who:-
(a) voted against a resolution passed or in favour of a resolution
not passed by Pool Members in general meeting; or
(b) voted against a resolution passed or in favour of a resolution
not passed by Generators or (as the case may be) Suppliers in
separate general meeting; or
(c) is directly affected by Pool Creditors passing or failing to pass
a resolution of Pool Creditors (but only where such resolution
does not concern the enforcement or non-enforcement of any
payment obligation),
and each Externally Interconnected Party (not being a Pool
Member) (each such Pool Member a "Dissentient Pool Member",
which expression shall include each such Externally
Interconnected Party) shall be entitled within ten working
days after the date of such resolution to apply in writing to
the Director seeking a ruling that the relevant resolution
shall or shall not have effect on the grounds that either:-
(i) the interests of a group of Pool Members
(including the Dissentient Pool Member) or of
the Dissentient Pool Member under this
Agreement have been, are or will be unfairly
prejudiced by the passing of or the failure
to pass such resolution; or
(ii) such resolution will breach, or will cause
the Dissentient Pool Member to be in breach
of, one or more provisions of this Agreement
or of its Licence or of the Act.
Any such application shall give detailed reasons and
evidence in support and shall be copied to the
Executive Committee. The Dissentient Pool Member shall
be entitled to mark all or any part of such
application as confidential and the Executive
Committee shall give such weight as it sees fit to
such marking in the copying of such application to
those persons to whom it is obliged to copy such
application. The Executive Committee shall promptly
notify all other Pool Members, each Externally
Interconnected Party (not being a Pool Member), the
Pool Chairman, the Settlement System Administrator and
the Pool Funds Administrator of receipt of such
application. At the same time as the Executive
Committee shall notify all such other Pool Members,
each Externally Interconnected Party (not being a Pool
Member), the Pool Chairman, the Settlement System
Administrator and the Pool Funds Administrator of such
receipt, the Executive Committee shall send each of
them a copy of the relevant application (amended, if
appropriate, to take account of any such marking where
the Executive Committee shall have seen fit so to do).
The Executive Committee, each Pool Member, each
Externally Interconnected Party (not being a Pool
Member), the Pool Chairman, the Settlement System
Administrator and the Pool Funds Administrator and (if
invited by the Director) the Pool Auditor shall each
be entitled to make representations to the Director.
If the Pool Auditor shall be so invited to make any
such representations, the Executive Committee will
provide it with a copy of the relevant application
(amended, if appropriate, as aforesaid).
13.5.2 Any determination of the Director in respect of any such
application as is referred to in Clause 13.5.1 shall be final
and binding. Pending any determination of the Director in
respect of any such application, the relevant resolution (if
passed) shall not have effect provided that, if the Director
shall decline to accept a reference or to make a determination
(in either case, for whatsoever reason), such resolution shall
take effect from the date that the Director notifies the
Executive Committee that he declines to accept the reference
or to make the determination.
13.5.3 The Parties acknowledge and agree that the satisfaction of
either of the grounds referred to in Clause 13.5.1(i) or (ii)
shall not of itself entitle the Dissentient Pool Member to a
determination by the Director in its favour.
PART IV
THE EXECUTIVE COMMITTEE
14. ESTABLISHMENT OF THE EXECUTIVE COMMITTEE
Establishment: The Pool Members hereby establish the Executive
Committee upon the terms and subject to the conditions of this
Agreement.
15. MEMBERSHIP OF THE EXECUTIVE COMMITTEE
15.1 Number of the Committee Members: The maximum number of Committee
Members shall not at any time exceed twelve or such lesser number
(subject to a minimum of six) as Pool Members may decide in general
meeting not later than 90 days before each annual general meeting of
Pool Members. Any such lesser number so decided upon prior to an annual
general meeting of Pool Members shall be the maximum number of
Committee Members during the entire term of office (according to Clause
15.4) of those Committee Members elected at that annual general meeting
(or, as the case may be, a subsequent extraordinary general meeting).
On the expiry of that term of office, the maximum number of Committee
Members shall be twelve unless a lesser number shall have been decided
upon in accordance with the procedures set out in this Clause 15.1.
15.2 Maximum number of Committee Members fewer than twelve: If Pool Members
decide on a maximum number of Committee Members fewer than twelve in
accordance with Clause 15.1, then:-
15.2.1 The number of Committee Members to be appointed in accordance
with the provisions of Clause 15.5 shall be two fewer than the
agreed maximum number of Committee Members and the number of
Committee Members to be appointed in accordance with Clause
15.6 shall be two; and
15.2.2 The references to "ten" and its derivatives in Clauses
15.5.3(g) and 15.5.3(i) shall be substituted by the number
that is two fewer than the maximum number of Committee Members
agreed by Pool Members and the references to "nine" and
"eleven" (and their respective derivatives) in Clause
15.5.3(i) shall be correspondingly altered.
15.3 Appointment and Removal: As from 1st April, 1997 and subject as provided in
Clauses 15.2 and 15.8, ten Committee Members shall be appointed and removed
in accordance with the provisions of Clauses 15.5 and 15.10 and two
Committee Members shall be appointed and removed in accordance with the
provisions of Clauses 15.6 and 15.10.
15.4 Term of Office: Subject to Clause 15.11, the term of office of
Committee Members shall be from 1st April in the year of appointment to
31st March in the next following year provided that, if the meeting at
which any Committee Member is appointed is held after 1st April, his
term of office shall commence from the time of his appointment. A
Committee Member whose term of office has expired or is to expire shall
be eligible for re-election.
15.5 MP Committee Member election procedure: The procedures set out in this
Clause 15.5 shall apply to the election of those Committee Members who are
not RS Committee Members ("MP Committee Members"):- --------------------
15.5.1 Each MP Pool Member shall be entitled, by notice to the
Executive Committee given no earlier than 90 days and no later
than 30 days before each annual general meeting of Pool
Members or, failing election of any MP Committee Members at
such meeting, no later than 15 days before an extraordinary
general meeting convened for such purpose to propose, one
individual (an "MP Nominee") to be an MP Committee Member. The
MP Nominee need not be an officer or employee of a Pool Member
but shall not be the Chief Executive or Pool Chairman or any
then current nominee for the position of Chief Executive or
Pool Chairman. Any such proposal to be valid shall be
accompanied by a written statement from the MP Nominee stating
that he is aware of the proposal and would be prepared to
serve as a Committee Member if elected.
15.5.2 No later than 10 days before the date of the annual general
meeting (or, as the case may be, extraordinary general
meeting) the Executive Committee shall circulate (or cause to
be circulated) to all Pool Members and the Director a list of
all the names of the MP Nominees and of the Pool Members who
proposed them (the "MP Nominee List"). The MP Nominee List
shall also be circulated at the annual general meeting or, as
the case may be, extraordinary general meeting to all Pool
Members present in person; and
15.5.3 At the annual general meeting or extraordinary general meeting
(as the case may be) of Pool Members held to appoint Committee
Members the following procedures shall be applied in
sequence:-
(a) each MP Pool Member shall be given a voting paper (in
this Clause 15.5, a "Voting Paper") with the name of
every MP Nominee who appears on the MP Nominee List;
(b) subject to paragraphs (c) and (d) below, an MP Pool
Member shall rank each MP Nominee on its Voting Paper
in order of preference by marking the MP Nominee which
is its first choice for membership of the Executive
Committee (its "Preferred MP Nominee") with the number
"1" and continuing numbering sequentially in order of
preference until it is indifferent as to the
preference it accords to any remaining MP Nominees;
(c) if an MP Pool Member has proposed an MP Nominee in
accordance with Clause 15.5.1, then such MP Pool
Member must choose that MP Nominee as its Preferred MP
Nominee;
(d) all MP Pool Members that are members of the same Pool
Member's Group shall be obliged to rank the same MP
Nominees in the same order of preference;
(e) the Moderator shall collect in all Voting Papers and
for each Preferred MP Nominee shall calculate the
number of Weighted Votes cast by those MP Pool Members
in his favour and for this purpose each MP Pool Member
shall be deemed to have cast all its Weighted Votes in
favour of its Preferred MP Nominee;
(f) the Moderator shall prepare a list (the "MP Preference
List") ranking the Preferred MP Nominees in order
according to the number of Weighted Votes cast for
each such Preferred MP Nominee, with the Preferred MP
Nominee with the most number of Weighted Votes being
at the head of the list;
(g) when there are more than ten MP Nominees on the MP
Preference List then, if the MP Nominee ranked tenth
on the MP Preference List has more Weighted Votes cast
in his favour than the sum of all Weighted Votes cast
for all those MP Nominees ranked below him on the MP
Preference List, those MP Nominees ranked first to
tenth on the MP Preference List shall be elected as
Committee Members and the voting procedure in this
Clause 15.5.3 shall terminate;
(h) if the condition in paragraph (g) above is not
satisfied, the MP Nominee whose name appears last on
the MP Preference List shall be removed from the MP
Preference List and shall take no further part in the
election process for the MP Committee Members and the
Moderator shall transfer the Weighted Votes of all
those MP Pool Members who voted for that MP Nominee to
the MP Nominee(s) who is their respective second
preference. The Moderator shall then prepare a revised
MP Preference List to which paragraph (g) above shall
be applied and the procedure set out in this paragraph
(h) shall be repeated as often as may be necessary
until the condition in paragraph (g) above is satisfied
(on each occasion the MP Nominee whose name appears
last on the MP Preference List being removed from it
and the Moderator transferring the Weighted Votes of
all those MP Pool Members attributable to that MP
Nominee to the MP Nominee(s) who is their next
respective preference); and
(i) if the provisions of paragraph (h) above have
been followed with the result that only
eleven MP Nominees appear on the MP
Preference List, and if the MP Nominee ranked
tenth has more Weighted Votes cast in his
favour than the MP Nominee ranked eleventh,
then those MP Nominees ranked first to tenth
on the MP Preference List shall be elected as
Committee Members. If, however, the Weighted
Votes cast in favour of the MP Nominees
ranked tenth and eleventh on the MP
Preference List are equal, then those MP
Nominees ranked first to ninth on the MP
Preference List shall be elected as Committee
Members and the selection of the tenth
Committee Member from the tenth and eleventh
MP Nominee on the MP Preference List shall be
decided by the drawing of lots in a manner to
be determined by the Pool Chairman.
15.6 RS Committee Member election procedures: The procedures set out in
this Clause 15.6 shall apply to the election of the RS Committee
Members:-
15.6.1 Each RS Pool Member shall be entitled, by notice to the
Executive Committee given no earlier than 90 days and no later
than 30 days before each annual general meeting of Pool
Members or, failing election of either RS Committee Member at
such meeting, no later than 15 days before an extraordinary
general meeting convened for such purpose to propose one
individual (a "RS Nominee") to be a RS Committee Member. The
RS Nominee need not be an officer or employee of a Pool Member
but shall not be the Chief Executive or Pool Chairman or any
then current nominee for the position of Chief Executive or
Pool Chairman. Any such proposal to be valid shall be
accompanied by a written statement from the RS Nominee stating
that he is aware of the proposal and would be prepared to
serve as a Committee Member if elected and identifying whether
he is standing for the position of SG Committee Member or IS
Committee Member;
15.6.2 No later than 10 days before the annual general meeting (or,
as the case may be, the extraordinary general meeting) the
Executive Committee shall circulate (or cause to be
circulated) to all Pool Members and the Director a list of all
the names of the RS Nominees and of the Pool Members who
nominated them (the "RS Nominee List"). The Director may
object to any RS Nominee by notice to the Executive Committee
no later than 5 working
---------------
days before the annual general meeting on the grounds that
such RS Nominee could not reasonably be expected to represent
the interests of Small Generators or (as the case may be)
Independent Suppliers on the Executive Committee. Any RS
Nominee to whom the Director so objects shall not be eligible
for election at the relevant meeting of Pool Members as an RS
Committee Member and his name shall be deleted from the RS
Nominee List. The RS Nominee List (amended, if necessary, to
take account of the Director's objections) shall be circulated
at the annual general meeting or, as the case may be,
extraordinary general meeting to all Pool Members present in
person and (if practicable) to all Pool Members in advance of
such meeting;
15.6.3 If there is no RS Nominee or no RS Nominee eligible for
election as the SG Committee Member or (as the case may be)
the IS Committee Member, the Director shall be entitled to
appoint and remove an individual to serve in that capacity for
the term of office referred to in Clause 15.4 and the
procedures in Clause 15.6.4 shall not apply to the election of
such RS Nominee;
15.6.4 At the annual general meeting or extraordinary general meeting
(as the case may be) of Pool Members the following procedures
shall be applied (subject to Clause 15.6.5) in sequence first
for the election of the SG Committee Member and, secondly, for
the election of the IS Committee Member immediately following
the conclusion of the election procedures for the MP Committee
Members in Clause 15.5:-
(a) each RS Pool Member shall be given a voting paper (in
this Clause 15.6, a "Voting Paper") with the name of
every RS Nominee who appears on the RS Nominee List
(amended, if appropriate, in accordance with Clause
15.6.2);
(b) SG Pool Members shall be entitled to vote only for RS
Nominees nominated by SG Pool Members and whose names
appear on the Voting Paper ("SG Nominees");
(c) IS Pool Members shall be entitled to vote only for RS
Nominees nominated by IS Pool Members and whose names
appear on the Voting Paper ("IS Nominees");
(d) in the case of the election of the SG Committee
Member, each SG Pool Member shall rank each SG Nominee
on its Voting Paper in order of preference by marking
the SG Nominee which is its first choice for
membership of the Executive Committee (its "Preferred
SG Nominee") with the number "1" and continuing
numbering sequentially in order of preference until it
is indifferent as to the preference it accords to any
remaining SG Nominees;
(e) in the case of the election of the IS Committee
Member, each IS Pool Member shall rank each IS Nominee
on its Voting Paper in order of preference by marking
the IS Nominee which is its first choice for
membership of the Executive Committee (its "Preferred
IS Nominee") with the number "1" and continuing
numbering sequentially in order of preference until it
is indifferent as to the preference it accords to any
remaining IS Nominees. Preferred SG Nominees and
Preferred IS Nominees are, for the purposes of this
Clause 15.6, known as the "Preferred RS Nominees";
(f) if a RS Pool Member has proposed a SG Nominee or an IS
Nominee in accordance with Clause 15.6.1, then such RS
Pool Member must choose that SG Nominee or (as the
case may be) IS Nominee as its Preferred RS Nominee;
(g) the Moderator shall collect in all Voting Papers and
for each SG Nominee and each IS Nominee shall
calculate the number of Weighted Votes cast by RS Pool
Members in his favour and for this purpose each RS
Pool Member shall be deemed to have cast all its
Weighted Votes in favour of its Preferred RS Nominee;
(h) the Moderator shall prepare a list (the "SG Preference
List") ranking the Preferred SG Nominees in order
according to the number of Weighted Votes cast for
each such Preferred SG Nominee, with the Preferred SG
Nominee with the most number of Weighted Votes being
at the head of the list;
(i) the Moderator shall prepare a list (the "IS Preference
List") ranking the Preferred IS Nominees in order
according to the number of Weighted Votes cast for
each such Preferred IS Nominee, with the Preferred IS
Nominee with the most number of Weighted Votes being
at the head of the list;
(j) if the RS Nominee ranked first on the SG Preference
List or (as the case may be) IS Preference List has
more Weighted Votes cast in his favour than the sum of
all Weighted Votes cast for all those RS Nominees
ranked below him on the same list, the RS Nominee
ranked first on the relevant list shall be elected as
the SG Committee Member or (as the case may be) IS
Committee Member and the voting procedure in this
Clause 15.6.4 shall terminate; and
(k) if the condition in paragraph (j) above is not
satisfied, the RS Nominee whose name appears last on
the SG Preference List or (as the case may be) IS
Preference List shall be removed from that list and
shall take no further part in the election process for
the relevant RS Committee Members and the Moderator
shall transfer the Weighted Votes of all those RS Pool
Members who voted for that RS Nominee to the RS
Nominee(s) who is their respective second preference.
The Moderator shall then prepare a revised SG
Preference List or (as the case may be) IS Preference
List in each case to which paragraph (j) above shall be
applied and the procedure set out in this paragraph (k)
shall be repeated as often as may be necessary until
the condition in paragraph (j) above is satisfied in
relation to the relevant list (on each occasion the RS
Nominee whose name appears last on the SG Preference
List or (as the case may be) IS Preference List being
removed from it and the Moderator transferring the
Weighted Votes of all those RS Pool Members
attributable to that RS Nominee to the RS Nominee(s)
who is their next respective preference); and
15.6.5 If a SG Pool Member is a member of a Pool Member's Group of
which an IS Pool Member is also a member (or vice versa) and
there are no MP Pool Members in that Pool Member's Group, the
SG Pool Member and the IS Pool Member shall jointly notify the
Secretary upon receipt of the RS Nominee List at the annual
general meeting or, as the case may be, extraordinary general
meeting whether the SG Pool Member will participate in the
election of the SG Committee Member or the IS Pool Member will
participate in the election of the IS Committee Member. In the
former case, the IS Pool Member shall not have the right to
participate in the election of either RS Nominee and, in the
latter case, the SG Pool Member shall not have the right to
participate in the election of either RS Nominee. If no such
notification is received by the Secretary before the election
procedure for the RS Nominees begins, the votes of both the SG
Pool Member and the IS Pool Member shall be discounted and
ignored.
15.7 Spoilt papers: If any Voting Paper is incorrectly completed or otherwise
spoilt, the Moderator shall take no account of it or of the Weighted Votes
purported to be cast by it in the conduct of the procedures set out in
Clause 15.5 and/or 15.6.
15.8 Default appointment: If the procedures set out in Clause 15.5 or 15.6
(other than Clause 15.6.3) shall result in less than the prescribed or
(as the case may be) agreed maximum number of Committee Members
permitted under Clause 15.1 being appointed (including where there are
insufficient nominees nominated to fill the seats), the Director shall
have the right to appoint and remove individuals to the Executive
Committee as Committee Members in such numbers as may be necessary to
provide for such maximum number of Committee Members until such time as
another election pursuant to Clause 15.5.3 or (as the case may be)
15.6.4 takes place. Any Committee Member appointed pursuant to this
Clause 15.8 shall, for the purposes of Clause 23.6, represent the
interests of all Pool Members for the time being and from time to time.
15.9 Notification of Committee Members: The Secretary shall promptly notify all
Pool Members and the Director of the appointment and removal of any
Committee Member.
15.10 Removal of Committee Members:
15.10.1 A Committee Member may be removed by vote of all those Pool
Members whose Weighted Votes were cast in favour of that
Committee Member in his election pursuant to Clause 15.5 or
Clause 15.6, such vote to be passed requiring a majority of 65
per cent. of the total number of Weighted Votes of all such
Pool Members (after deduction of any Weighted Votes of persons
who were Pool Members at the time of his election and who
voted in favour of him but who are no longer Pool Members).
For the purposes of such vote, relevant Pool Members may cast
only that number of Weighted Votes which they cast in favour
of such Committee Member in his election pursuant to Clause
15.5 or 15.6.
15.10.2 A separate general meeting of those Pool Members entitled to
vote may be convened for the purpose of removing a Committee
Member and to every such separate general meeting the
provisions of Part III relating to general meetings of Pool
Members (other than Clause 10.9, save in respect of the
attendance by the Pool Auditor or the Director or its or his
duly appointed representative) shall apply mutatis mutandis
but so that:-
(a) the necessary quorum shall be one Pool Member entitled
to vote thereat; and
(b) notice of any such separate general meeting need be given
only to those entitled to attend the same.
15.11 Vacation of office by Committee Members: The office of a Committee
Member shall be vacated if:-
15.11.1 He resigns his office by notice delivered to the Secretary; or
15.11.2 He becomes bankrupt or compounds with his creditors generally; or
15.11.3 He becomes of unsound mind or a patient for any purpose of any
statute relating to mental health; or
15.11.4 He and his alternate fail to attend more than three consecutive
meetings of the Executive Committee; or
15.11.5 He dies; or
15.11.6 He is removed from office pursuant to Clause 15.10.
15.12 Election of replacement Committee Members: At the time of the vacation
of office of a Committee Member (for the purposes of this Clause 15.12
an "Outgoing Committee Member") or as soon as is reasonably practicable
thereafter , a replacement Committee Member shall be elected following
the procedures set out in, in the case of an MP Committee Member,
Clause 15.5 or, in the case of an RS Committee Member, Clause 15.6,
provided that :-
(a) only Pool Members whose Weighted Votes were cast in favour of the
Outgoing Committee Member in an election pursuant to Clause 15.5 or
15.6 and who were, at the time of his vacation of office, represented
by him pursuant to Clause 23.6.1 or 23.6.2; and
(b) only those persons who have become Pool Members in the period of the
Outgoing Committee Member's term of office and who were, at the time
of his vacation of office, represented by him pursuant to Clause
23.6.4
may take part in the election of a replacement Committee Member
pursuant to this Clause 15.12.
15.13 Alternates:
15.13.1 Each Committee Member shall have the power to appoint any person
(who may be an existing Committee Member) to be his alternate and may
at his discretion remove an alternate Committee Member so appointed.
Any appointment or removal of an alternate Committee Member shall be
effected by notice in writing executed by the appointor and delivered
to the Secretary who shall forthwith notify all other Committee
Members of such appointment. If his appointor so requests, an
alternate Committee Member shall be entitled to receive notice of all
meetings of the Executive Committee or of sub-committees or sub-groups
of which his appointor is a member and to receive a voting paper on a
poll instead of the appointor. He shall also be entitled to attend,
speak and vote as a Committee Member at any such meeting at which the
Committee Member appointing him is not personally present and at the
meeting to exercise and discharge all the functions, powers and duties
of his appointor as a Committee Member and for the purposes of the
proceedings at the meeting the provisions of this Part IV shall apply
as if he were a Committee Member. He shall also be entitled to demand
a poll (whether at or after the meeting) pursuant to Clause 22.3, to
carry out consultations with Pool Members contemplated by Clause 22.8
insofar as his appointor shall be unable to do so, to act on the
instructions of Pool Members duly given to his appointor or to him on
behalf of his appointor and to complete his appointor's voting paper
on a poll on behalf of his appointor.
15.13.2 Except on a poll, every person acting as an alternate
Committee Member shall have one vote for each Committee
Member for whom he acts as alternate, in addition to his own
vote if he is also a Committee Member. On a poll, an
alternate Committee Member shall be entitled (if his
appointor is unable to do so) to exercise (on behalf of his
appointor and by completion of the appointor's separate
voting paper) all of the votes which his appointor is
entitled to cast, in addition to any votes which the
alternate is entitled to cast in his own capacity if he is
also a Committee Member. Execution by an alternate Committee
Member of any resolution in writing of the Executive
Committee shall, unless the notice of his appointment
provides to the contrary, be as effective as execution by
his appointor.
15.13.3 An alternate Committee Member shall ipso facto cease to be
an alternate Committee Member if his appointor ceases for
any reason to be a Committee Member.
15.13.4 References in this Agreement to a Committee Member shall,
unless the context otherwise requires, include his duly appointed alternate.
16. POOL CHAIRMAN
16.1 Pool Chairman: There shall at all times be a Chairman of the pooling
and settlement arrangements for the electricity industry in England
and Wales established by this Agreement (the "Pool Chairman").
-------------
16.2 Appointment and Term:
16.2.1 The election of a Pool Chairman shall take place either:-
(i) at the annual general meeting or (as the case
may be) an extraordinary general meeting of
Pool Members convened for that purpose (where
practicable) held not less than three months
before the end of the term of the then
current Pool Chairman; or
(ii) should the Executive Committee so decide, by
a postal vote in accordance with Clause 16.4,
such postal vote to have a closing date which
(where practicable) is not less than three
months before the end of the term of the then
current Pool Chairman.
16.2.2 Subject to Clause 16.2.4, the term of office of the Pool Chairman
shall be from 1st April in the year of his election to the 31st March
falling two years thereafter provided that:-
(i) where the Pool Chairman is to be elected at
an annual general meeting or (as the case may
be) an extraordinary general meeting of Pool
Members, if the meeting at which he is
elected is held after 1st April, his term of
office shall commence from such date as the
Pool Members in general meeting shall resolve
(being no earlier than the date of such
meeting);
(ii) where the Pool Chairman is to be elected by
postal vote, if the closing date of such
postal vote is after 1st April, his term of
office shall commence from such date as shall
be set out in the notice of postal vote which
shall have been sent to all Pool Members by
the Chief Executive in accordance with Clause
16.4; and
(iii) his term of office shall expire before 31st
March if he resigns or is unable for whatever
reason to continue to act or if a successor
Pool Chairman is elected with a term of
office which Pool Members either in general
meeting or (as the case may be) by the terms
of a postal vote resolve is to commence
before that date.
16.2.3 The appointment of the Pool Chairman shall be on such terms
and conditions (including, but not limited to, terms and
conditions in relation to reimbursement, hours of work and
removal (subject to Clause 13.1.2)) as have been approved by
Pool Members in general meeting. Any amendment to those terms
and conditions shall require the prior approval of Pool
Members in general meeting.
16.2.4 Not later than three months prior to the end of the two year
term of the then current Pool Chairman, Pool Members may
either (i) call and hold a general meeting or (ii) call and
hold a postal vote and, if the Pool Chairman agrees, may
resolve to extend the term of appointment of the Pool Chairman
by one year. If the resolution is approved in accordance with
the terms of this Agreement then the term of appointment shall
be so extended provided that under no circumstances shall the
term of appointment exceed three years.
16.2.5 If at any time the Pool Chairman shall resign or be unable for
whatever reason to continue to act, an extraordinary general
meeting shall be called in accordance with Clause 9.4 or a
postal vote shall be called in accordance with Clause 16.4 for
the purposes of electing a successor Pool Chairman. Unless
that successor Pool Chairman himself is removed, resigns or is
unable for whatever reason to continue to act, he shall hold
office until the 31st March falling closest to the date two
years after the date of his election and his appointment may
be extended in accordance with Clause 16.2.4.
16.3 Transitional Provisions: The appointment of the Pool Chairman whose
two year term of office starts on 1st April, 1996 is hereby ratified
and confirmed by all Pool Members.
16.4 Election procedure (postal vote): The Executive Committee may (where
practicable) resolve to call a postal vote to elect a Pool Chairman.
Where the Executive Committee so resolves, such postal vote shall be
held in accordance with the following principles:-
16.4.1 The Executive Committee shall instruct the Chief Executive, who
shall send a notice to Pool Members, stating that a postal vote has
been called and inviting nominations to be sent to the Chief Executive
within a period of not less than 21 days from the date of such notice;
16.4.2 Once such period for nomination has closed, the Chief Executive
shall send to all Pool Members a ballot paper containing a list of all
eligible nominees and a closing date for the receipt by the Chief
Executive of completed ballot papers, such date being no less than 21
days from the date of such ballot paper; and
16.4.3 Each Pool Member shall have one vote and the successor Pool Chairman
shall be elected by single transferable vote in accordance with the
procedures approved by the Executive Committee.
16.5 Election procedure (general meeting):
16.5.1 Where any successor Pool Chairman is to be elected at an
annual general meeting or (as the case may be) extraordinary
general meeting, nominations shall be delivered no later than
21 days prior to the relevant annual general meeting or (as
the case may be) extraordinary general meeting.
16.5.2 At the relevant annual general meeting or (as the case may be)
extraordinary general meeting, all eligible nominees shall be
proposed by the Pool Chairman (failing whom, the Chief
Executive). Each Pool Member shall have one vote and the
successor Pool Chairman shall be elected by single
transferable vote in accordance with the procedures approved
by the Executive Committee.
16.6 Nominations: Any Pool Member can nominate any one person, whether or
not an employee of a Pool Member, to be Pool Chairman. Nominations made
pursuant to this Clause 16.6 shall be delivered in writing to the Chief
Executive within any time period specified pursuant to Clause 16.4 or
(as the case may be) Clause 16.5. Any such nomination shall only be
valid where accompanied by a written statement from the nominee stating
that he is aware of the proposal and would be prepared to serve as Pool
Chairman in accordance with this Agreement and the relevant terms and
conditions if elected.
16.7 Functions: The Pool Chairman shall have and carry out only such duties
and responsibilities and exercise such powers as are expressly provided
in this Agreement and in his terms of reference approved by the
Executive Committee from time to time. The Pool Chairman shall exercise
impartially all such duties, responsibilities and powers.
16.8 No voting rights: The Pool Chairman in his capacity as Pool Chairman
shall have no voting rights under this Agreement.
16.9 Indemnity: The Pool Chairman shall be indemnified and kept indemnified
jointly and severally by all Pool Members (and, as between the Pool
Members, rateably in the proportion which their respective
Contributory Shares bear one to the other at the time of receipt of
the request for indemnification) from and against any and all costs
(including legal costs), charges, expenses, damages or other
liabilities properly incurred or suffered by him in relation to his
office as Pool Chairman or the due exercise by him of his powers,
duties and responsibilities as Pool Chairman and all claims, demands
or proceedings arising out of or in connection with the same except
any such costs, charges, expenses, damages or other liabilities which
are suffered or incurred or occasioned by the wilful default or bad
faith of, or breach of duty or trust by, the Pool Chairman. The Pool
Members shall, upon request, provide the Pool Chairman with a written
deed of indemnity to that effect.
17. CHIEF EXECUTIVE, SECRETARIAT AND SECRETARY
17.1 Chief Executive:
17.1.1 Subject to Clause 15.7.4, a chief executive of the Executive
Committee (the "Chief Executive") shall be appointed and be
subject to removal and replacement by resolution of the
Executive Committee passed by 70 per cent or more of the votes
of all Committee Members (after consultation with the Pool
Chairman). The Chief Executive shall be appointed on such
terms and conditions as they see fit.
17.1.2 The Chief Executive shall undertake such duties and
responsibilities and exercise such powers in relation to the
Executive Committee and its activities as the Executive
Committee may from time to time assign to or vest in him.
17.1.3 The Chief Executive shall have the right and shall be obliged
to attend all meetings of the Executive Committee and all
meetings of the Pool Members in general meeting. The Chief
Executive in his capacity as Chief Executive shall have no
voting rights under this Agreement. If for any reason the
Chief Executive is unable to attend any such meeting, he shall
nominate a representative to attend in his place.
17.1.4 The Executive Committee shall make arrangements for the
remuneration of the Chief Executive and the payment of his
costs and expenses and the same shall be recovered in
accordance with the PFA Accounting Procedure or as otherwise
directed by the Executive Committee from time to time.
17.2 Secretariat:
17.2.1 The Executive Committee may from time to time appoint and
remove, or make arrangements for the appointment and removal
of, such personnel as the Executive Committee requires to
assist the Executive Committee, any sub-committee of the
Executive Committee, the chairman of the Executive Committee
or any such sub-committee, the Pool Chairman, the Chief
Executive or the Secretary in the proper performance of its or
his duties and responsibilities, in each such case upon such
terms and conditions as the Executive Committee sees fit.
17.2.2 Any personnel referred to in Clause 17.2.1 shall undertake
such duties and responsibilities and exercise such powers as
the Executive Committee may from time to time assign to or
vest in him, it or them.
17.2.3 The Executive Committee shall make arrangements for the
remuneration of such personnel as are referred to in Clause
17.2.1 and the payment of their costs and expenses and the
same shall be recovered in accordance with the PFA Accounting
Procedure or as otherwise directed by the Executive Committee
from time to time.
17.3 Secretary:
17.3.1 The Executive Committee may from time to time appoint and
remove, or make arrangements for the appointment and removal
of, the Secretary on such terms and conditions as it sees fit.
17.3.2 The Secretary in his capacity as Secretary shall have no voting
rights under this Agreement.
17.3.3 The Secretary shall have and carry out only such duties and
responsibilities as are expressly provided in this Agreement
and such other reasonable secretarial and administrative
duties and responsibilities as may from time to time be
delegated to it by the Executive Committee. If at any time
there is no Secretary, the responsibilities and duties of the
Secretary under this Agreement shall become those of the Chief
Executive or, if there shall be no Chief Executive, the
Executive Committee until such time as a Secretary is
appointed pursuant to Clause 17.3.1 or a Chief Executive is
appointed pursuant to Clause 17.1.1 (and notices to the
Secretary under this Agreement shall be re-addressed
accordingly).
17.3.4 The Secretary shall be entitled to receive such remuneration
(if any) as the Executive Committee may from time to time
approve, such remuneration to be paid to it at such times and
in such manner as the Executive Committee shall from time to
time direct and to be recovered in accordance with the PFA
Accounting Procedure or as otherwise directed by the Executive
Committee from time to time. Further, the Secretary shall be
paid its reasonable travelling, hotel and incidental expenses
of attending and returning from meetings of the Executive
Committee or any sub-committee thereof and any general
meetings and separate general meetings of Pool Members and all
costs and expenses properly and reasonably incurred by it in
the performance of its duties and responsibilities under this
Agreement. All such costs and expenses shall be recovered in
accordance with the PFA Accounting Procedure or as otherwise
directed by the Executive Committee from time to time.
17.4 Indemnity:
17.4.1 All Pool Members shall jointly and severally indemnify and keep
indemnified the Chief Executive, the Contract Manager, the personnel
referred to in Clause 17.2.1, the Secretary and each member of any
sub-committee of the Executive Committee or of any sub-group
established by any such sub-committee (other than a Committee Member,
but without prejudice to Clause 23.3.4) (and, as between the Pool
Members, according to their respective Contributory Shares at the time
of receipt of the request for indemnification) from and against any
and all costs (including legal costs), charges, expenses, damages or
other liabilities properly incurred or suffered by the Chief Executive
in relation to his office as Chief Executive or (as the case may be)
the Secretary in relation to its office as Secretary or the due
exercise by the Chief Executive, the Contract Manager, the said
personnel, the Secretary or (as the case may be) any such member of
his, their or its powers, duties and responsibilities under this
Agreement and all claims, demands or proceedings arising out of or in
connection with the same except any such costs, charges, expenses,
damages or other liabilities which are suffered or incurred or
occasioned by the wilful default or bad faith of, or breach of
obligation by, the Chief Executive, the Contract Manager, such
personnel, the Secretary or (as the case may be) any such member.
17.4.2 The Pool Members undertake to enter into an indemnity in
favour of any employer of the Chief Executive, any personnel
referred to in Clause 17.2.1, the Secretary or (as the case
may be) any such member of any sub-committee of the Executive
Committee or of any sub-group established by any such
sub-committee as is referred to in Clause 17.4.1 under which
they shall jointly and severally indemnify and keep
indemnified any such employer in respect of all acts and
omissions of the Chief Executive, the Contract Manager, such
personnel, the Secretary or (as the case may be) any such
member in the performance of his, their or its rights, powers,
duties and responsibilities under this Agreement (and, as
between the Pool Members, according to their respective
Contributory Shares at the time of receipt of the request for
indemnification under the relevant indemnity).
18. PROCEEDINGS OF THE EXECUTIVE COMMITTEE
18.1 Meetings:
18.1.1 Meetings of the Executive Committee (other than special
meetings referred to in Clause 18.1.3) shall be held at least
quarterly (or at such shorter regular intervals as may be
agreed from time to time by the Executive Committee) at such
time and place in any jurisdiction in which any Pool Member is
incorporated or has its principal place of business as may be
agreed from time to time by the Executive Committee (or, in
default of agreement, as stipulated by the Pool Chairman).
18.1.2 Meetings of the Executive Committee shall be convened by the
Secretary upon giving to the Committee Members, the Pool
Chairman, the Chief Executive (if any), the Settlement System
Administrator, the Director and the Pool Auditor and (where
matters the subject of the agenda referred to in Clause 18.1.4
concern directly the functions, duties or responsibilities of
any Externally Interconnected Party (not being a Pool Member),
the Pool Funds Administrator, the Grid Operator and/or the
Ancillary Services Provider) the relevant one(s) of them at
least five working days' notice of the place, the day and the
hour of the relevant meeting.
18.1.3 Special meetings of the Executive Committee shall be convened upon
the request of any Committee Member, the Pool Chairman or the Chief
Executive Such request shall be made in writing to the Secretary and
shall state the matters to be considered at that special meeting. Upon
receipt of such request the Secretary shall convene in accordance with
Clause 18.1.2 without delay such special meeting for a date occurring
as soon as practicable thereafter but not less than five nor more than
ten working days after receipt of such request. If the Secretary shall
fail so to convene a special meeting the Committee Member which made
such request, the Pool Chairman or (as the case may be) the Chief
Executive may himself convene a special meeting, but any meeting so
convened shall not be held after the expiration of two months from the
date of such request. A special meeting convened under this Clause
18.1.3 by a Committee Member, the Pool Chairman or the Chief Executive
shall be convened in the same manner, as nearly as possible, as that
in which meetings of the Executive Committee are to be convened by the
Secretary pursuant to Clause 18.1.2.
18.1.4 Any notice given under Clause 18.1.2 shall be exclusive of the day
on which it is served or deemed to be served and of the day for which
it is given and shall be accompanied by an agenda of the matters to be
considered at the relevant meeting together with any supporting
documents or papers then available to the Secretary. Any Committee
Member may advise additional matters which he wishes to be considered
at such meeting by notice to all other Committee Members, the Pool
Chairman, the Chief Executive (if any), the Secretary, the Settlement
System Administrator, the Director and the Pool Auditor and (where
such additional matters concern directly the functions, duties or
responsibilities of any Externally Interconnected Party (not being a
Pool Member), the Pool Funds Administrator, the Grid Operator and/or
the Ancillary Services Provider) the relevant one(s) of them given no
later than three working days before the date of such meeting. Only
matters identified in such agenda or so advised shall be discussed or
resolved upon at such meeting. The accidental omission to give notice
of a meeting or accompanying agenda or supporting documents or papers
to, or the non-receipt of notice of a meeting or accompanying agenda
or supporting documents or papers by, any person entitled to receive
notice shall not invalidate the proceedings at that meeting.
18.1.5 For any meeting of the Executive Committee, the periods and
methods of notice referred to in the foregoing provisions of
this Clause 18 may be waived prospectively or retrospectively
with the consent in writing of all such persons as are
entitled to attend the relevant meeting.
18.1.6 The Secretary shall prepare minutes of all meetings of the Executive
Committee and shall provide copies thereof to all such persons as were
entitled to attend the relevant meeting as soon as practicable (and in
any event within ten working days) after the relevant meeting has been
held. Each person who attended such meeting shall notify his approval
or disapproval of the minutes thereof to the Secretary no later than
ten working days after receipt thereof and, if he fails to do so, he
or it shall be deemed to have approved the same. The Secretary shall
record any such disapproval in the minutes unless the same shall have
been withdrawn or the minutes amended with the agreement of the
Executive Committee. The Secretary shall provide copies of minutes of
meetings of the Executive Committee to any other Party within a
reasonable time after request therefor provided that the said time for
approving or disapproving the same has expired. Further, the Secretary
shall provide copies of such minutes to such persons as the Executive
Committee may from time to time direct within a reasonable time after
receipt of such direction.
19. CONDUCT OF EXECUTIVE COMMITTEE MEETINGS
19.1 General: Chairman:
19.1.1 Subject as provided in Clauses 13, 18 and 22 and this Clause
19, the Executive Committee may meet for the transaction of
business, and adjourn and otherwise regulate its meetings, as
it shall see fit.
19.1.2 The Pool Chairman shall preside as chairman at every meeting of
the Executive Committee provided that:-
(a) if the Pool Chairman is unable to attend any meeting,
he shall nominate another individual to preside as
chairman at that meeting in his place. Such individual
shall be a director or senior executive of one of the
Pool Members but shall not be a Committee Member or an
alternate for any Committee Member; and
(b) if there is no Pool Chairman or the Pool Chairman or
his duly appointed nominee shall not be present within
15 minutes after the time appointed for the holding of
the meeting or the Pool Chairman is unwilling to act,
the Committee Members present may appoint one of their
number to be chairman of the meeting.
19.1.3 The chairman of the meeting in his capacity as chairman shall
not have any vote at meetings of the Executive Committee.
19.2 Quorum: No business shall be transacted at a meeting of the Executive
Committee unless a quorum is present throughout that meeting. Six
Committee Members present in person or by their respective alternates
shall constitute a quorum.
19.3 Lack of Quorum: If, within half an hour from the time appointed for
holding any meeting of the Executive Committee, a quorum is not
present, the meeting shall be adjourned to the same day in the next
week at the same time and place and if at the adjourned meeting a
quorum is not present within half an hour from the time appointed for
holding the meeting, those present shall constitute a quorum.
19.4 Representation of non-Committee Members: Each of the Settlement System
Administrator, the Pool Chairman, the Director and the Pool Auditor
(or its or his duly appointed representative) shall have the right to
attend and speak (but not to vote) at meetings of the Executive
Committee. Each Externally Interconnected Party (not being a Pool
Member) and each of the Pool Funds Administrator, the Grid Operator
and the Ancillary Services Provider (or its duly appointed
representative) shall be entitled to attend and speak (but not vote)
at meetings of the Executive Committee only where matters directly
concerning its functions, duties or responsibilities have been
identified or advised as provided in Clause 18.1.4 or if so requested
by the Executive Committee. The Chief Executive (or his duly appointed
representative) shall have the right to attend and speak (but not
vote) at meetings of the Executive Committee and shall be obliged so
to attend. With the exception of attendances by the Pool Chairman, the
Chief Executive and the Pool Auditor, no payment shall be made to any
person who has the right by virtue of this Clause 19.4 to attend
Executive Committee meetings in respect of any such attendance.
19.5 Written resolutions: A resolution in writing, executed by or on behalf
of each Committee Member, shall be as valid and effectual as if it had
been passed at a meeting of the Executive Committee duly convened and
held and may consist of several instruments in like form and executed
by or on behalf of one or more of such Committee Members. Any proposed
resolution in writing shall be circulated to all those persons who
would have been entitled to attend a meeting of the Executive Committee
at which such resolution could properly have been passed.
19.6 Default in appointment: All acts done by any meeting of the Committee
Members or of a sub-committee of the Executive Committee shall,
notwithstanding that it be afterwards discovered that there was some
defect in the appointment of such Committee Member, be as valid as if
such person had been duly appointed.
20. DELEGATION
20.1 Sub-committees: The Executive Committee may establish sub-committees. Each
sub-committee:-
20.1.1 Shall be composed of such persons (whether or not Committee
Members) and shall discharge such rights, powers, duties and
responsibilities as from time to time the Executive Committee
considers desirable to delegate to it; and
20.1.2 In the exercise of its rights and powers and the performance
of its duties and responsibilities delegated to it by the
Executive Committee shall at all times conduct itself and its
affairs in a manner which it considers best designed to give
effect to the principal objects and purpose set out in Clause
4.1.2 and to promote, and not obstruct, the fair and efficient
operation of the procedures referred to in Clause 4.1.3 so
that the objectives set out in Clause 4.1.3 are thereby
achieved; and
20.1.3 Shall be given written terms of reference and, unless
otherwise varied by the Executive Committee, the provisions of
Clauses 18 and 19 shall apply mutatis mutandis to meetings of
such sub-committee and the provisions of Clauses 19.4, 23.3.1,
23.3.2 and 23.3.3 shall apply mutatis mutandis in relation to
any such sub-committee and the members thereof; and
20.1.4 May establish sub-groups to assist in the discharge of the
rights, powers, duties and responsibilities of such
sub-committee, each of which sub-groups shall be given written
terms of reference and, unless otherwise varied by the
Executive Committee or any sub-committee acting on the
authority of the Executive Committee, the provisions of
Clauses 18 and 19 shall apply mutatis mutandis to meetings of
such sub-groups and the provisions of Clauses 23.3.1, 23.3.2,
and 23.3.3 shall apply mutatis mutandis in relation to each
such sub-group and the members thereof.
20.2 Nominees: Upon written request of the Executive Committee or, in the
case of the Settlement System Administrator, Order issued by the
Contract Manager under Schedule 4, each Pool Member and the Settlement
System Administrator shall:-
20.2.1 Nominate one or more persons knowledgeable in the matters
referred to, or the subject of consideration by, the relevant
sub-committee to attend at meetings of, and otherwise
participate as a member of, any sub-committee established by
the Executive Committee; and
20.2.2 Procure that such nominee(s) shall so attend and participate at
such time or times as the Executive Committee or such sub-committee may require,
provided that a Pool Member shall not be required in any period of 12
months to make available nominees for more than 60 days in aggregate.
Save as provided by Clause 23.5 no payment shall be made to Pool
Members in respect of any such attendance or participation.
20.3 Member's responsibilities: To the extent not inconsistent with the
provisions of Clauses 20.1.1, 20.1.2 and 20.1.3 a member of any
sub-committee established by the Executive Committee shall be free to
represent the interests of the person or persons which nominated him to
that sub-committee but each such person acknowledges and agrees the
subordination of those interests to the responsibilities of such
sub-committee under Clause 20.1.2.
20.4 Chief Executive: The Executive Committee may from time to time delegate
all or any of its rights, powers, duties and responsibilities under
this Agreement to the Chief Executive upon such terms and conditions as
the Executive Committee thinks fit.
20.5 Effect of decisions: Resolutions of sub-committees shall not have
binding effect (a) unless and then only to the extent that the
Executive Committee shall have delegated the relevant decision-making
powers to the sub-committee, or (b) unless approved by resolution of
the Executive Committee (and then subject to Clause 13). Meetings of
such sub-committees shall, so far as possible, be arranged so that
minutes of such meetings can be circulated to each Committee Member in
sufficient time for consideration before the next following regular
meeting of the Executive Committee. Resolutions of sub-groups shall not
have binding effect. The Executive Committee shall remain at all times
responsible for the actions of all its sub-committees and sub-groups.
20.6 Other delegation: Subject to any direction to the contrary by Pool
Members in general meeting but without prejudice to the Executive
Committee's rights under Clauses 20.1 and 20.4, the Executive Committee
may from time to time delegate in any particular case all or any of its
rights, powers, duties and responsibilities under this Agreement,
including any decision-making powers and the conduct of any review or
consultation and the preparation and submission of any report required
of it under this Agreement, to such person or persons as it thinks fit
and on such terms and conditions as it thinks fit and shall require
that, in the performance of the delegated duties, such person or
persons shall conform to any regulations that may be imposed on it or
them by the Executive Committee.
21. [Not used].
22. VOTING
22.1 Voting: The chairman of the relevant meeting of the Executive Committee
and any Committee Member may demand that any question or matter arising
at a meeting of the Executive Committee be put to a vote of Committee
Members. Any vote so demanded shall be taken forthwith or at such other
time as such chairman directs not being later than the date of the next
meeting of the Executive Committee. Any demand for a vote may, before
the vote is taken, be withdrawn.
22.2 Simple majority: Subject as provided in the following provisions of
this Clause 22, any question or matter arising at a meeting of the
Executive Committee shall be decided by a simple majority of the votes
cast at the meeting by Committee Members. On any such question or
matter each Committee Member shall be entitled to one vote. In the
event of an equality of votes on any resolution put to the Executive
Committee, the matter the subject of the relevant resolution shall be
remitted to the Committee Members for decision on a poll.
22.3 Demand for a poll: In respect of any matter or question which is put
to a vote of Committee Members a poll may be demanded (before or after
the simple majority vote) either:-
22.3.1 At the meeting at which the simple majority vote takes place, by
the chairman of the meeting or by any Committee Member; or
22.3.2 By no later than five working days after such meeting, by
notice in writing to the Chief Executive by any Committee
Member (whether or not present at the relevant meeting).
22.4 Effect of decision: A decision duly made at a meeting of the Executive
Committee shall (unless otherwise determined by the Executive Committee
or otherwise provided by the terms of the decision) have immediate
effect, unless a poll be duly demanded in accordance with Clause 22.3,
in which case, pending the outcome of the vote on a poll, the decision
shall cease to or shall not have effect.
22.5 Withdrawal of demand: Any demand for a poll may be withdrawn by the
person who made it at any time provided that notice of withdrawal is
received by the Chief Executive by no later than the seventh working
day following the date of the Executive Committee meeting at which the
vote took place. The Chief Executive shall as soon as reasonably
practicable notify all Parties and all other persons entitled or
required to attend general meetings of Pool Members of receipt of any
such notice of withdrawal.
22.6 Conduct of a poll: The Secretary shall without delay following the
demand for, or the remittance of a matter for decision on, a poll
despatch to each Committee Member a voting paper in such form as shall
be agreed by the chairman of the Executive Committee meeting at which
the matter in question was considered or (failing him) the Chief
Executive but which shall in any event set out the full text of the
resolution in respect of which the poll is required (which shall be the
same as the resolution which was put to a simple majority vote), shall
provide for each Committee Member to cast votes for or against the
resolution and shall specify the date by which votes must be lodged by
Committee Members. The Secretary shall at the same time give notice to
all Parties that a poll has been demanded and shall specify in such
notice the resolution on which the poll has been called (if
applicable), the identity of the person (or persons) who has demanded
the poll and the date by which votes must be lodged by the Committee
Members. The accidental omission to issue a voting paper or to give
notice of a poll, or the non-receipt of a voting paper or such a notice
by, any person entitled to receive the voting paper or (as the case may
be) the notice shall not invalidate the conduct of the poll or the
result thereof.
22.7 Votes on a poll: on a vote on a poll:-
22.7.1 The Committee Members shall in aggregate be entitled to a
number of votes equal to the number of votes which the Pool
Members would have been entitled to cast on a poll at a
general meeting if such meeting had taken place on the day of
the Executive Committee meeting at which the matter in
question was considered;
22.7.2 Each Committee Member shall have the votes attributable to his
Constituents and shall cast such votes in accordance with the
individual written instructions of each such Constituent, but
so that no Constituent shall be entitled to instruct that the
votes attributable to it be cast more than once;
22.7.3 In the absence of any written instructions from any Constituent, a
Committee Member shall not be entitled to cast any votes on behalf of
that Constituent;
22.7.4 A Constituent may instruct the relevant Committee Member to
abstain from casting any or a specified number of votes on its behalf;
22.7.5 The votes cast by a Committee Member shall not be valid
unless:-
(a) the relevant voting paper shall have been received by
the Secretary on or before the date falling 10 working
days after the date on which the voting papers were
despatched to Committee Members and the votes cast in
such voting paper accord with the written instructions
referred to in paragraph (b) below;
(b) accompanied by a copy of the written instructions
given by or on behalf of the Constituent(s) whose
votes the Committee Member is entitled to cast;
(c) the Committee Member in other respects shall have
complied with the procedures for votes on a poll (if
any) from time to time established by the Executive
Committee;
22.7.6 Any Constituent on whose instructions a Committee Member is
required to act in accordance with the foregoing provisions
shall be entitled to make arrangements with any other
Constituent on whose instructions that same Committee Member
is required to act for the requisite written instructions to
be given on its behalf by that other Constituent. Details of
any such arrangement shall promptly be given to the Secretary.
22.8 65 per cent. majority: A resolution on a poll shall be decided by a
majority of not less than 65 per cent. of the votes duly cast. The
Secretary shall as soon as reasonably practicable after the expiry of
the 10 working day period for return of voting papers referred to in
Clause 22.7.5(a) ascertain the results of the poll in consultation with
the Pool Chairman or (failing him) the Chief Executive and the Chief
Executive or (failing him) the Secretary shall as soon as practicable
thereafter notify all Parties and all other persons entitled or
required to attend general meetings of Pool Members of the outcome of
the poll. The result of the poll shall be deemed to be the resolution
of the meeting at which or after which the poll was demanded.
22.9 Responsibilities of Committee Members: The Committee Members shall
consult the Pool Members whose votes they are entitled to cast as soon
as reasonably practicable following the demand for a poll and shall be
required to cast, or to refrain from casting, the votes of such Pool
Members in accordance with their individual instructions. The
provisions of Clause 23.1 shall not apply in respect of any vote
conducted on a poll.
22.10 Referral to general meetings: The provisions of this Clause 22 are
subject to the requirements of referral to the Pool Members in general
meeting described in Clause 13.4.
22.11 Civil emergencies: The provisions of this Clause 22 are subject to
the provisions of Clause 61.9.
23. COMMITTEE MEMBERS' RESPONSIBILITIES AND PROTECTIONS; POOL MEMBER
REPRESENTATION
23.1 Executive Committee's responsibilities: In the exercise of its powers
and the performance of its duties and responsibilities under this
Agreement the Executive Committee shall at all times conduct itself and
its affairs in a manner which it considers best designed to give effect
to the principal objects and purpose set out in Clause 4.1.2 and to
promote, and not obstruct, the fair and efficient operation of the
procedures referred to in Clause 4.1.3 so that the objectives set out
in Clause 4.1.3 are thereby achieved. To the extent not inconsistent
with the responsibilities of the Executive Committee under this Clause
23.1 a Committee Member shall be free to give effect to his
responsibilities under Clause 23.2 but each of the Pool Members whom
such Committee Member represents acknowledges and agrees the
subordination of such Committee Member's responsibilities under Clause
23.2 to the responsibilities of the Executive Committee under this
Clause 23.1.
23.2 Committee Members' responsibilities: In the exercise of his powers and
the performance of his duties and responsibilities as a Committee
Member under this Agreement a Committee Member shall represent those
Pool Members which he is required to represent from time to time in
accordance with the provisions of Clause 23.6.
23.3 Protections:
23.3.1 The Executive Committee, each Committee Member, the Pool
Chairman, the Chief Executive, the Contract Manager and the
Secretary shall be entitled to rely upon any communication or
document reasonably believed by it or him to be genuine and
correct and to have been communicated or signed by the person
by whom it purports to be communicated or signed and shall not
be liable to any of the Parties for any of the consequences of
such reliance.
23.3.2 The Executive Committee, each Committee Member, the Pool
Chairman, the Chief Executive, the Contract Manager and the
Secretary may in relation to any act, matter or thing
contemplated by this Agreement act on the opinion or advice
of, or any information from, any lawyer, banker, valuer,
broker, accountant or any other specialist or professional
adviser given within the field of expertise usually ascribed
to persons of such description or the specialist field of
expertise for which he has been retained and duly instructed
so to act by the Executive Committee, and shall not be liable
for the consequences of so acting. The appointment of any such
adviser to the Executive Committee shall be approved by the
Executive Committee before any such cost is charged to the PFA
Accounting Procedure.
23.3.3 In the event of any conflict or inconsistency, any directions
and instructions of the Director (which the Director is
entitled under his statutory or regulatory powers to issue or
give) shall prevail over the duties and responsibilities of
the Executive Committee or the Secretary under this Agreement
and no liability whatsoever shall attach to the Executive
Committee or any Committee Member or the Pool Chairman or the
Chief Executive or the Contract Manager or the Secretary (as
the case may be) as a result of due compliance by it or him
with any such directions and instructions.
23.3.4 Each Committee Member shall be indemnified and kept indemnified
jointly and severally by all Pool Members and, as between all Pool
Members, rateably in the proportion which their respective
Contributory Share bear one to the other at the time of receipt of
the request for indemnification from and against any and all costs
(including legal costs), charges, expenses, damages or other
liabilities properly incurred or suffered by him in relation to the
Executive Committee or his office as Committee Member or the due
exercise by him of his powers, duties and responsibilities as a
Committee Member and all claims, demands or proceedings arising out of
or in connection with the same except any such costs and expenses
referred to in Clause 23.4 which have been recovered in accordance
with the PFA Accounting Procedure and any such costs, charges,
expenses, damages or other liabilities which are suffered or incurred
or occasioned by the wilful default or bad faith of, or breach of duty
or trust by, such Committee Member.
23.3.5 The Pool Funds Administrator acknowledges and agrees that it
holds the benefit of Clause 23.3.4 as trustee and agent for each Committee
Member.
23.3.6 Each Pool Member shall, upon request by any Committee Member,
provide that Committee Member with a written deed of indemnity in the
terms set out in Clause 23.3.4.
23.4 Committee Members' costs and expenses: Each Committee Member and each
member of any sub-committee or sub-group of the Executive Committee may
be paid his reasonable travelling, hotel and incidental expenses of
attending and returning from meetings of the Executive Committee or any
such sub-committee or sub-group and shall be paid all expenses properly
and reasonably incurred by him in the conduct of the business of the
Executive Committee or the relevant sub-committee or sub-group or in
the discharge of his duties as a Committee Member or (as the case may
be) a member of the relevant sub-committee or sub-group. All such
expenses shall be recovered in accordance with the PFA Accounting
Procedure.
23.5 Committee's costs and expenses: The Executive Committee and each of its
sub-committees and sub-groups shall be entitled to recover all its
costs and expenses properly incurred in accordance with the PFA
Accounting Procedure. For this purpose, the costs and expenses of the
Executive Committee shall include properly incurred costs, expenses and
liabilities of or associated with any business accommodation and
services required by the Executive Committee, the Chief Executive, the
Secretary or the personnel referred to in Clause 17.2.1 and the
properly incurred costs and expenses of any consultant or adviser
retained by the Executive Committee or any such person in the proper
performance of its or his duties and responsibilities.
23.6 Pool Member representation: Each Pool Member will be represented on
the Executive Committee as follows:-
23.6.1 Subject as provided in Clause 23.6.3, if the first preferred
MP Nominee or RS Nominee of a Pool Member is elected to the
Executive Committee pursuant to Clause 15.5 or 15.6, that MP
Nominee or RS Nominee in its capacity as a Committee Member
will represent the interests of that Pool Member;
23.6.2 If the first preferred MP Nominee or RS Nominee of a Pool
Member is not elected to the Executive Committee pursuant to
Clause 15.5 or 15.6, or if a Pool Member did not vote in any
such election, then that Pool Member shall within five working
days after the relevant meeting of Pool Members at which the
Committee Members are elected notify the Secretary of the
identity of the Committee Member whom it wishes to represent
its interests on the Executive Committee and, subject to
Clause 23.6.3, such Committee Member will represent those
interests;
23.6.3 Subject to the prior written agreement of the Committee Member
concerned (such agreement not to be unreasonably withheld or
delayed) and to the relevant Pool Member having first
consulted the Pool Chairman, a Pool Member may by written
notice to the Secretary elect, on no more than two occasions
during the Committee Members' term of office, to have its
interests on the Executive Committee represented by a
Committee Member other than the Committee Member referred to
in Clause 23.6.1 or 23.6.2 (as the case may be);
23.6.4 A person becoming a Pool Member during the Committee Members'
term of office shall be represented by the Committee Member of
their choice, such choice to be notified in writing to the
Director and the Secretary within five working days of that
person becoming a Pool Member. That person shall continue to
be represented by his chosen Committee Member (or his
successor) until the expiry of that Committee Member's term of
office (or, if earlier, its ceasing to be a Pool Member) and
will not during that period be entitled to the benefit of
Clause 23.6.3; and
23.6.5 A Pool Member will be a Constituent of the Committee Member
representing its interests on the Executive Committee for the
time being and from time to time.
23.7 Notification: The Secretary shall notify all Pool Members and the
Director promptly after the meeting of Pool Members at which Committee
Members are elected of the Pool Members and their respective Committee
Member representatives and of any subsequent nomination or change of
representation during the term of office of the Committee Members.
24. POWERS OF THE EXECUTIVE COMMITTEE
24.1 General power: Subject as otherwise provided in this Agreement, the
Executive Committee shall, as between itself and the Pool Members in
general meeting, exercise overall supervision of the Settlement System
and its operations.
24.2 Specific powers: Subject as otherwise provided in this Agreement, the
powers, duties and responsibilities of the Executive Committee shall,
as between itself and the Pool Members in general meeting, include:-
24.2.1 The specific powers, duties and responsibilities set out in the Pool
Rules;
24.2.2 Monitoring on a regular basis the Settlement System Administrator in
its operation of the Settlement System (including deciding whether to
propose to the Pool Members in general meeting for their approval the
removal of the Settlement System Administrator);
24.2.3 The power to appoint and remove the Pool Funds Administrator and to
carry out the other functions ascribed to it in Schedules 11 and 15
and to enter into on behalf of Pool Members any agreement or
arrangement with the Pool Funds Administrator (or successor Pool Funds
Administrator) in substitution for that set out in Schedule 15;
24.2.4 Monitoring on a regular basis each of the Grid Operator and
the Ancillary Services Provider in the performance of its
obligations under this Agreement;
24.2.5 Considering applications by New Parties to be admitted as parties to
this Agreement under Clause 3 and of Parties to be admitted as Pool
Members under Clause 8;
24.2.6 Considering, amending, substituting, approving and disapproving all
Agreed Procedures, Codes of Practice (including commissioning reviews
thereof by the Pool Auditor in accordance with Clause 47.1.5 or by
other technical experts) and Service Lines;
24.2.7 The specific powers, duties and responsibilities set out in Schedule
4;
24.2.8 The specific powers, duties and responsibilities set out in Schedule
15;
24.2.9 Appointing and removing the Pool Auditor, and instructing the Pool
Auditor to conduct audits, reviews, tests and checks and the
monitoring and review thereof, all in accordance with Part IX;
24.2.10 Opening, maintaining and closing bank accounts for its own
purposes and crediting and debiting sums thereto;
24.2.11 Controlling the development of the Pool Rules and
considering and approving or disapproving amendments to the
Pool Rules in accordance with Clause 7.4.2;
24.2.12 Commissioning independent reviews of the Scheme and its
operation in accordance with Part XIII;
24.2.13 Conducting reviews, preparing Works Programmes and implementing
Transitional Arrangements, all in accordance with Clause 5;
24.2.14 Preparing the reports referred to in Clause 9.1.2 and the
business plan referred to in Clause 9.1.1 and preparing and
despatching regular quarterly reports to the Parties (with a
copy to the Director) in relation to all matters which are
the subject of this Agreement and in such reports reviewing
performance over the immediately preceding Quarter against
the business plan referred to in Clause 9.1.1;
24.2.15 Considering any representation from any Pool Member in
relation to any regular quarterly report prepared pursuant
to Clause 24.2.14 above or otherwise relating to any matter
which is the subject of this Agreement;
24.2.16 Overseeing the standards of Metering Equipment and the Codes
of Practice, agreeing in accordance with paragraph 14 of
Schedule 21 dispensations therefrom and reviewing the need
for new standards for Metering Equipment and, where it
considers such new standards are required, adopting such
standards in accordance with the requirements for adoption
of Codes of Practice (as contained in the definition of Code
of Practice) and in accordance with the provisions of
Schedule 21;
24.2.17 Dealing promptly and efficiently with any dispute referred to
it concerning Settlement or its operation (including with respect to data);
24.2.18 Convening in accordance with Clause 9.4 general meetings of Pool
Members or classes of Pool Members;
24.2.19 Appointing, remunerating and removing the Chief Executive in
accordance with Clause 17.1 and, where permitted by the
terms of this Agreement, giving directions and instructions
to the Chief Executive, the Contract Manager, the Settlement
System Administrator, the Pool Funds Administrator, the Grid
Operator, the Ancillary Services Provider, Externally
Interconnected Parties (not being Pool Members) and other
persons to carry into effect the decisions of the Executive
Committee or Pool Members in general meeting or separate
general meeting;
24.2.20 If requested by the Director, conveying any direction or
request of the Director to the Settlement System
Administrator, the Pool Funds Administrator, the Grid
Operator, the Ancillary Services Provider or any other Party
or the Pool Auditor;
24.2.21 Appointing, remunerating and removing in accordance with the
Grid Code one or more persons to represent the Executive
Committee on the Grid Code Review Panel;
24.2.22 Appointing, remunerating and removing lawyers, bankers,
valuers, brokers, accountants and other professional and
specialist advisers to assist the Executive Committee or any
of its sub-committees in the performance of its duties and
responsibilities under this Agreement;
24.2.23 Subject to any applicable confidentiality provisions,
monitoring any litigation, arbitration or other proceedings
affecting or which may affect the Settlement System;
24.2.24 Subject to any applicable confidentiality provisions,
advising Pool Members, Externally Interconnected Parties
(not being Pool Members), the Settlement System
Administrator, the Pool Funds Administrator, the Grid
Operator and the Ancillary Services Provider of decisions of
the Executive Committee applicable to them or the relevant
one(s) of them and liaising with all such persons on an
ongoing and regular basis;
24.2.25 Advising each of the Pool Auditor and the Director of
decisions of the Executive Committee and of Pool Members in
general meeting or separate general meeting and liaising
with each of the Pool Auditor and the Director on an ongoing
and regular basis;
24.2.26 Investigating any complaints made by any Pool Member
concerning the Settlement System, the Funds Transfer System
(or any part or aspect of any thereof), the Settlement
System Administrator, the Pool Funds Administrator, the Grid
Operator, the Ancillary Services Provider, the Pool Auditor,
the Pool Banker or the Custodian;
24.2.27 Approving the Pool Banker and giving instructions for, or
consenting to, the removal of the same;
24.2.28 Reviewing and approving or disapproving the Procedures Manual
in accordance with Clause 64;
24.2.29 Considering and dealing with any other matter relating to
the Settlement System, the Funds Transfer System (or any
part or aspect of any thereof) or its or their operation
referred to the Executive Committee by the Pool Members in
general meeting or separate general meeting, any Pool
Member, the Pool Chairman, the Pool Auditor or the Director
and any other matter which is otherwise designated under
this Agreement for reference to it; and
24.2.30 Determining the amount of the Second Tier Suppliers' System
Charge.
24.3 Exclusion of general meeting powers: Pool Members in general meeting
shall have no powers in relation to the matters expressly reserved
under this Agreement to the Executive Committee except to the extent
that such matters are remitted to the Pool Members in general meeting
under Clause 13.4.".
PART V
LIMITATION OF LIABILITY
25. LIMITATION OF LIABILITY
25.1 Limitation of liability: Subject to Clause 25.2 and save where any
provision of this Agreement provides for an indemnity, each Party
agrees and acknowledges that no Party (excluding for this purpose the
Settlement System Administrator) (the "Party Liable") or any of its
officers, employees or agents shall be liable to any of the other
Parties for loss arising from any breach of this Agreement other than
for loss directly resulting from such breach and which at the date of
this Agreement was reasonably foreseeable as not unlikely to occur in
the ordinary course of events from such breach in respect of:-
25.1.1 physical damage to the property of any of the other Parties or
its or their respective officers, employees or agents; and/or
25.1.2 the liability of any such other Party to any other person for loss
in respect of physical damage to the property of any other person.
25.2 Death and personal injury: Nothing in this Agreement shall exclude or
limit the liability of the Party Liable for death or personal injury
resulting from the negligence of the Party Liable or any of its
officers, employees or agents and the Party Liable shall indemnify and
keep indemnified each of the other Parties, its officers, employees or
agents from and against all such and any loss or liability which any
such other Party may suffer or incur by reason of any claim on account
of death or personal injury resulting from the negligence of the Party
Liable or any of its officers, employees or agents.
25.3 Exclusion of certain types of loss: Subject to Clause 25.2 and save
where any provision of this Agreement provides for an indemnity,
neither the Party Liable nor any of its officers, employees or agents
shall in any circumstances whatsoever be liable to any of the other
Parties for:-
25.3.1 any loss of profit, loss of revenue, loss of use, loss of
contract or loss of goodwill; or
25.3.2 any indirect or consequential loss; or
25.3.3 loss resulting from the liability of any other Party to any other
person howsoever and whensoever arising save as provided in Clauses
25.1.2 and 25.2.
25.4 Trust: Each Party acknowledges and agrees that each of the other
Parties holds the benefit of Clauses 25.1, 25.2 and 25.3 for itself
and as trustee and agent for its officers, employees and agents.
25.5 Survival: Each of Clauses 25.1, 25.2, 25.3 and 25.4 shall:-
25.5.1 be construed as a separate and severable contract term, and
if one or more of such Clauses is held to be invalid,
unlawful or otherwise unenforceable the other or others of
such Clauses shall remain in full force and effect and shall
continue to bind the Parties; and
25.5.2 survive termination of this Agreement.
25.6 Saving: For the avoidance of doubt, nothing in this Part V shall
prevent or restrict any Party enforcing any obligation (including
suing for a debt) owed to it under or pursuant to this Agreement.
25.7 Full negotiation: Each Party acknowledges and agrees that the foregoing
provisions of this Part V have been the subject of discussion and
negotiation and are fair and reasonable having regard to the
circumstances as at the date of this Agreement.
PART VII
THE SETTLEMENT SYSTEM ADMINISTRATOR'S RESPONSIBILITIES
29. RESPONSIBILITIES
Responsibilities: Without prejudice to the generality of the duties,
responsibilities and obligations of the Settlement System
Administrator provided elsewhere in the SSA Arrangements:-
29.1 Provision of information: The Settlement System Administrator shall
upon request provide each Pool Member, the Ancillary Services Provider
and the Grid Operator with a certified copy of such records, data and
other information concerning amounts payable by or to such Pool Member,
the Ancillary Services Provider and the Grid Operator as such Pool
Member, the Ancillary Services Provider or the Grid Operator may
reasonably request for the purpose of establishing the amounts which
are owed to or by such Pool Member, the Ancillary Services Provider or
the Grid Operator in accordance with this Agreement, and in any event
with such information as any Pool Member, the Ancillary Services
Provider or the Grid Operator may request from the Settlement System
Administrator in order to establish or prove a claim to any amounts due
or claimed to be due. The Settlement System Administrator shall provide
such information forthwith upon request or (if so required by the
Settlement System Administrator) upon delivery of a certificate from
the Pool Member's, the Ancillary Service Provider's or the Grid
Operator's counsel certifying that such information is required for
such purpose. Each of the Parties agrees to the release of all such
records, data and other information in the circumstances described in
this Clause 29.1.
29.2 Arrangements with the Grid Operator and Ancillary Services Provider:
Each of the Settlement System Administrator, the Grid Operator and the
Ancillary Services Provider shall make and maintain arrangements with
each other whereby such data and other information as may be collected
or received by any of them or necessary for the purposes of the
Settlement System, the Ancillary Services Business or (as the case may
be and subject to Clause 69) the operation of the NGC Transmission
System or the performance by the Grid Operator of its obligations under
the NGC Transmission Licence shall be provided to such other(s) to the
extent necessary to enable such other(s) to perform its or their
respective obligations under this Agreement, the Grid Code, any
Ancillary Services Agreement and/or the NGC Transmission Licence. Each
of the Parties agrees to the release of all such data and other
information in the circumstances described in this Clause 29.2.
29.3 Arrangements with the Pool Funds Administrator: The Settlement System
Administrator and the Pool Funds Administrator shall make and maintain
arrangements with each other whereby:-
(a) sufficient data and other information is provided by the
Settlement System Administrator to the Pool Funds
Administrator as to enable the Pool Funds Administrator to
perform its obligations under this Agreement and the Funds
Transfer Agreement; and
(b) sufficient data and other information is provided by the
Pool Funds Administrator to the Settlement System
Administrator as to enable the Settlement System
Administrator to perform its obligations under this
Agreement.
Each of the Parties agrees to the release of all such data and other
information in the circumstances described in this Clause 29.3.
30. [Not used].
31. [Not used].
32. [Not used].
33. [Not used].
34. COSTS, FEES AND EXPENSES
34.1 Schedule 4: The provisions of Schedule 4 shall have effect.
34.2 Fees:
34.2.1 Each Party which is not a Pool Member (other than the
Settlement System Administrator, the Pool Funds
Administrator, the Grid Operator and the Ancillary Services
Provider) shall pay the Settlement System Administrator a
fee as provided in Section 8 of Part G of the Appendix to
Schedule 4 in respect of the provision to such Party of all
data and other information which is required by the terms
and conditions of Service Line 10 (Service to CEO and Pool
Members) to be made available to it by the Settlement System
Administrator.
34.2.2 A Party may at any time by notice in writing to the
Settlement System Administrator elect not to be provided
with all or some of the data and other information to which
it is entitled from the Settlement System Administrator
under this Agreement and may change such election at any
time upon further written notice to the Settlement System
Administrator.
34.3 Charges: The Executive Committee shall be entitled to require that a fee or
other charge (not exceeding(pound)500 per dispute or such other sum as the
Pool Members in general meeting may from time to time approve) be levied on
and paid by a Party in respect of any dispute concerning Settlement or its
operation (including with respect to data) referred by such Party for
determination to the Executive Committee or any sub-committee thereof. Such
fee or other charge shall be levied, paid and collected in such manner and
at such time as the Executive Committee shall direct and the relevant Party
hereby undertakes to pay any such fee or other charge so levied. Any such
fee or other charge shall at the option of the Executive Committee (i) be
refunded in whole or in part to the Party which paid the same, or (ii) be
applied against the administration costs of whatsoever nature of the
Executive Committee or the relevant sub-committee.
34.4 Externally Interconnected Parties' costs:
34.4.1 An Externally Interconnected Party shall be entitled to
recover in accordance with this Clause 34.4 its costs and
expenses reasonably incurred in acting in accordance with
this Agreement as the Externally Interconnected Party for
its Corresponding External Pool Members (as defined in the
Pool Rules).
34.4.2 Not later than 30 days after the beginning of each Accounting
Period (commencing with the Accounting Period beginning in 1992)
each Externally Interconnected Party shall submit in writing to
the Executive Committee for approval (such approval not to be
unreasonably withheld) reasonable details of the costs and
expenses anticipated as likely to be incurred by it in its
capacity as an Externally Interconnected Party in that Accounting
Period and (commencing with the Accounting Period beginning in
1993) of the actual costs and expenses so incurred by it in the
immediately preceding Accounting Period. If approved by the
Executive Committee, all such costs and expenses shall be
recovered by an Externally Interconnected Party from its
Corresponding External Pool Members in accordance with Clause
34.4.3. If not so approved, the Externally Interconnected Party
shall revise and resubmit to the Executive Committee the said
details as often as may be required in order to obtain such
approval.
34.4.3 Each Corresponding External Pool Member shall reimburse its
Externally Interconnected Party its due proportion of all
its Externally Interconnected Party's approved costs and
expenses within 28 days after receipt of an invoice from its
Externally Interconnected Party. The Externally
Interconnected Party shall issue invoices in respect of each
Quarter on or after the Quarter Day relating thereto.
Invoices shall be based on approved anticipated costs and
expenses for the relevant Accounting Period and the first
invoice for each Accounting Period (commencing with the
Accounting Period beginning in 1993) shall include any
correction that may be necessary on account of the approved
actual costs and expenses being different from the approved
anticipated costs and expenses for the immediately preceding
Accounting Period.
34.4.4 For the purposes of this Clause 34.4 a Corresponding
External Pool Member's due proportion of its Externally
Interconnected Party's approved costs and expenses for each
Quarter shall be calculated as follows:-
(a) the aggregate of the Externally Interconnected Party's
approved costs and expenses shall be divided by two;
(b) as to one half of such approved costs and expenses,
the Corresponding External Pool Member's due
proportion shall be the proportion which the sum of
(i) the number of its Generation Trading Blocks and
(ii) one (representing the notional Consumer referred
to in paragraph 26.5.2(d) of the Pool Rules) bears to
the sum of (a) the total number of the Generation
Trading Blocks of all Corresponding External Pool
Members the Externally Interconnected Party of which
is the same as that for the Corresponding External
Pool Member in question and (b) the number of all such
Corresponding External Pool Members, and each such
Corresponding External Pool Member shall for this
purpose be allocated at least one Generation Trading
Block; and
(c) as to the other half of such approved costs and
expenses, the Corresponding External Pool Member's due
proportion shall be the proportion which its Gross
Traded Energy for the Quarter in question bears to the
aggregate of the Gross Traded Energy for that Quarter
of all Corresponding External Pool Members the
Externally Interconnected Party of which is the same
as that for the Corresponding External Pool Member in
question, and for this purpose "Gross Traded Energy"
in respect of any Quarter and any Corresponding
External Pool Member shall be the aggregate amount of
Active Energy (measured in kWh) bought and sold
pursuant to this Agreement by such Corresponding
External Pool Member in its capacity as such in that
Quarter.
34.4.5 The foregoing provisions of this Clause may be amended or
varied in respect of an Externally Interconnected Party and
its Corresponding External Pool Members (or any of them) by
prior written agreement of that Externally Interconnected
Party, all its Corresponding External Pool Members and the
Executive Committee.
34A. SECOND TIER SYSTEM CHARGES
34A.1 The following provisions of this Section 34A shall apply in respect of
each of the Accounting Periods beginning on 1st April, 1994, 1st April,
1995, 1st April, 1996 and 1st April, 1997 (each a "Specified Accounting
Period").
34A.2 Subject to Section 34A.6, the Second Tier Suppliers' System Charge for
a Specified Accounting Period shall be determined by the Executive
Committee as the amount per annum to be charged to each Second Tier
Supplier in respect of each Second Tier System supplied by such
Supplier.
34A.3 Subject to Section 34A.6, the Second Tier Suppliers' Non-Pooled
Generation System Charge for a Specified Accounting Period shall be
determined by the Executive Committee as the amount per annum to be
charged to each Supplier in respect of each Non-Pooled Generator for
whose Metering System such Supplier is the Registrant.
34A.4 Subject to Section 34A.6, the Suppliers' System Charge for a Specified
Accounting Period shall be determined by the Executive Committee as the
amount per annum to be charged to each Supplier (other than a Second
Tier Supplier) in respect of each Non-Second Tier System in that
Supplier's authorised area.
34A.5The second tier system charge payable by a Supplier in respect
of each calendar month in a Specified Accounting Period shall be
calculated as follows:-
(a) in respect of each Second Tier Supplier, in accordance with
the following formula:-
Second Tier Suppliers' System Charge x NOSP
where NOSP is the total number of Second Tier Systems supplied
by such Supplier at the beginning of the relevant calendar month;
(b) in respect of each Supplier and in addition to the charge in
Section 34A.5(a), in accordance with the following formula:-
[OBJECT OMITTED]
where NNPG is the total number of Metering Systems of
Non-Pooled Generators for which such Supplier is the
Registrant at the beginning of the relevant calendar month;
(c) in respect of each Supplier (other than a Second Tier Supplier), in
accordance with the following formula:-
Suppliers' System Charge x NMS
12
where NMS is the total number of Non-Second Tier Systems in
that Supplier's authorised area as at the beginning of that month;
(d) for these purposes, the numbers of Second Tier Systems and of
Non-Second Tier Systems as at the beginning of each calendar
month shall be as notified to the Settlement System
Administrator (who shall then notify the Director) by the
relevant Suppliers (and the Settlement System Administrator
being entitled, in the absence of any notification to the
contrary, to rely on the last such notification and other
information in its possession) and, in the event of any
dispute between the Parties, shall be as determined by the
Director (whose determination shall be final and binding); and
(e) only those Second Tier Systems in respect of which data
collection costs are incurred by Second Tier Agents or the
Settlement System Administrator shall be used in determining
the number of Second Tier Systems.
34A.6 If in respect of any Specified Accounting Period (other than the one
beginning on 1st April, 1997) the aggregate of all second tier system
charges payable pursuant to Sections 34A.5(a), 34A.5(b) and 34A.5(c)
and received by the Settlement System Administrator is less than or (as
the case may be) more than the Total Second Tier System Charges for
such Specified Accounting Period the deficit or (as the case may be)
the surplus shall be carried forward to the immediately succeeding
Specified Accounting Period and shall be included in the calculation of
the Total Second Tier System Charges therefor.
34A.7 The Executive Committee will use its reasonable endeavours to ensure
that the aggregate of all second tier system charges payable pursuant
to Sections 34A.5(a), 34A.5(b) and 34A.5(c) and received by the
Settlement System Administrator in respect of the Accounting Period
beginning on 1st April, 1997 meets the Total Second Tier System Charges
specified for that Accounting Period. There shall be no carry forward
of any such deficit or surplus arising in respect of the Specified
Accounting Period beginning on 1st April, 1997.
PART VIII
THE SETTLEMENT SYSTEM AND COMPUTER OPERATIONS
35. DEVELOPMENT OF THE SETTLEMENT SYSTEM
35.1 Development: The Settlement System shall be developed under the overall
control of the Executive Committee. All developments of and changes to
the Computer Systems shall be made in accordance with the terms of the
Development Policies.
35.2 Delegation: Save as provided by the Development Policies, the Executive
Committee shall be entitled to delegate all or any of its rights,
powers and duties under Clause 35.1 and the Development Policies to
such person(s) and on such terms and conditions as from time to time it
may see fit.
35.3 Development Policies:
35.3.1 (a) The matters addressed by the Development Policies
are set out in the list of contents in the Development
Policies. These general headings define the scope of
the Development Policies.
(b) The scope of the Development Policies may be amended
at any time and from time to time by written agreement
of the Executive Committee and the Settlement System
Administrator.
(c) Any amendment to any of the matters addressed by the
Development Policies or any addition or substitution
to the Development Policies which does not extend or
restrict (other than in a way or to an extent which
can reasonably be regarded as de minimis) the scope of
the Development Policies may be made at any time and
from time to time, and shall be effective if so made,
by the Executive Committee after consultation with the
Settlement System Administrator unless such matter is
one covered by the headings in Schedule 16 in which
event such amendment, addition or substitution may be
made and shall be effective only by written agreement
of the Executive Committee and the Settlement System
Administrator.
35.3.2 Without prejudice to Clause 35.3.1(c), Schedule 16 may be
changed at any time and from time to time by written
agreement of the Executive Committee and the Settlement
System Administrator.
35.3.3 Each of the Parties undertakes to comply with (and the Pool
Members undertake to ensure that the Executive Committee
complies with) the Development Policies.
35.4. SSA's comments: The Executive Committee or the particular sub-committee
or sub-group in respect of any development of the Settlement System
shall take into account all reasonable comments of the Settlement
System Administrator in relation to the specification, design, testing
and implementation requirements of any development of the Settlement
System where such comments relate to the operational compatibility or
consistency with the Settlement System or the ability of the Settlement
System Administrator to comply with this Agreement, the Act or NGC's
Transmission Licence.
35.5 Provision of data and information: Each Party shall ensure that all
data and information necessary to enable any testing of the Settlement
System or any development thereof or change thereto required under the
Development Policies and which is permitted to be released by the
Settlement System Administrator under the Pool Rules or as otherwise
expressly provided herein is supplied to the Executive Committee or as
it may direct and to the Settlement System Administrator, and each
Party shall use all reasonable endeavours to co-operate with and
support any such testing.
35.6 Provision of data and information to authorised persons: The Parties
shall provide or ensure that the Settlement System Administrator
provides all data and information required under Clause 35.5 to such
persons as may from time to time be authorised by the Executive
Committee to receive the same provided that such persons shall have
executed a confidentiality undertaking in such form as the Executive
Committee may from time to time determine. If the Settlement System
Administrator is not permitted or required to release any data and
information by reason only of the confidential nature of such data and
information it shall and may provide representative data to the extent
required for such testing.
35.7 Inconsistencies and conflicts: In the event of any inconsistency or
conflict between the provisions of this Agreement and the provisions of
the Development Policies, the provisions of this Agreement shall
prevail.
36. CHANGE MANAGEMENT
36.1 Change Management Policies: In order to ensure that developments of and
changes to the Settlement System are brought into effect in an ordered
and controlled manner, each of the Parties undertakes to comply with
the Change Management Policies.
36.2 Amendments: The Change Management Policies may be amended at any time and
from time to time by the Executive Committee after consultation with the
Settlement System Administrator.
37. SOFTWARE
37.1 [Not used].
37.2 Warranties: Without prejudice to Service Line 19 (System Integration)
and Section 9 of Schedule 4, nothing in this Agreement shall imply or
impose any requirement on the Settlement System Administrator to give
any warranty with respect to any Software.
37.3 No liability: Each Party acknowledges that neither NGC nor Energy
Settlements and Information Services Limited shall have any liability in
respect of any software developed before the Effective Date.
38. [Not used].
39. [Not used].
40. [Not used].
41. NOTIFICATION OF DEFECTS BY POOL MEMBERS
Each Pool Member undertakes to the Settlement System Administrator and
each other Pool Member promptly to notify the Settlement System
Administrator and the Executive Committee in writing of any defects of
which it is or becomes aware in the Software or its operation and to
provide such further information as may reasonably be required by the
Settlement System Administrator to identify, isolate and correct such
defect.
42. [Not used].
43. [Not used].
44. [Not used].
45. ESCROW ARRANGEMENTS
45.1 Escrow Agreement: On 17th March, 1992 the Settlement System
Administrator (for itself and on behalf of the Pool Members acting
through the Executive Committee) entered into an escrow agreement (the
"Escrow Agreement") in the form set out in schedule 7 with The National
Computing Centre Limited (the "Custodian"). The Settlement System
Administrator has deposited or will deposit as soon as it comes into
existence:-
45.1.1 a copy of the source code and load (machine executable)
modules relating to all Developed Application Software (as
defined in Schedule 4) together with all job control
language and licensed software system tables, each in a
machine readable form and the source code and job control
language in a hard copy form; and
45.1.2 a copy of all related manuals and other associated
documentation, including:-
(a) any user requirement documents, together with all associated
authorised change requests;
(b) any functional specification documents associated with those
documents described in paragraph (a) above, together with all
authorised change requests associated with the relevant
functional specification;
(c) to the extent available to the Settlement System Administrator,
any design specification documents associated with those
documents described in paragraphs (a) and (b) above, together
with all authorised change requests associated with the relevant
design specification;
(d) any program and/or user guides prepared to assist in he
day-to-day operation and future development of the computer
programs (including records of test cases together with the
associated test input and output data used for validation
purposes);
(e) any relevant test strategy schedules and acceptance test
schedules as specified for functional and operational end to end
testing;
(f) any relevant test acceptance certificates and reports for all
tests recording comments and observations made on the appropriate
tests where such tests are commissioned by the Settlement System
Administrator;
(g) any relevant client acceptance certificates and Pool Auditor's
reports, together with any reports recording such clients' and
the Pool Auditor's observations and comments on the tests;
(h) any relevant compilation or detailed operating procedures
required in connection with any of the relevant paragraphs in
this Clause 45.1.2;
(i) all Software licences for Licensed Application Software (as
defined in Schedule 4); and
(j) a list detailing all versions of Licensed Application Software
(including operating systems and compilers) used in creating each
version of the object code detailing the version numbers used and
any program temporary fixes or equivalent mode,
(together the "Material").
If, after consultation with the Settlement System Administrator, the
Executive Committee shall so request:-
(A) the Settlement System Administrator shall use its reasonable
endeavours (which may include the payment of a fee or
further fee recoverable through the Charging Procedure) to
procure that any licence for any Licensed Application
Software is on terms or amended terms that permit the
deposit of such Licensed Application Software with a
reputable software escrow agent approved by the Executive
Committee on the terms of an escrow agreement approved by
the Executive Committee and the Settlement System
Administrator (in the case of the Settlement System
Administrator such approval not to be unreasonably
withheld); and
(B) NGC shall use its reasonable endeavours to procure that any
licence for any Licensed Application Software licensed by it
to the Settlement System Administrator is on terms or
amended terms that permit the deposit of such Licensed
Application Software with a reputable software escrow agent
approved by the Executive Committee on the terms of an
escrow agreement approved by the Executive Committee and NGC
(in the case of NGC such approval not to be unreasonably
withheld).
45.2 Updating: The Settlement System Administrator shall ensure that the
Material deposited with the Custodian is kept fully up-to-date and
reflects all Modifications (as defined in the Escrow Agreement) and
shall deposit a copy of all Modifications with the Custodian as soon as
the same are available, all in accordance with the terms and subject to
the conditions of the Escrow Agreement.
45.3 Notification to Executive Committee: The Settlement System Administrator
shall notify the Executive Committee promptly of the delivery of each
Modification to the Custodian.
45.4 Amendments: Any amendment to or variation of the Escrow Agreemen shall
be made in accordance with its terms provided that the Settlement
System Administrator shall not make or agree to any such amendment or
variation without the prior written consent of the Executive Committee.
46. [Not used].
PART IX
THE POOL AUDITOR AND SCHEDULING AND DESPATCH REVIEWS
47. THE POOL AUDITOR AND SCHEDULING AND DESPATCH REVIEWS
47.1 Appointment and removal: The Executive Committee shall (after consultation
with the Settlement System Administrator) from time to time appoint a firm
of accountants of internationally recognised standing to carry out:-
47.1.1 audits of the calculations and allocations performed by the
Settlement System, such audits to be carried out annually;
47.1.2 audits of the Funds Transfer System, such audits to be carried out
annually;
47.1.3 tests and/or checks on new items or versions of Software;
47.1.4 reviews of Agreed Procedures and Codes of Practice, as required
from time to time by the Executive Committee; and
47.1.5 audits, reviews, tests and/or checks of such other matters
as are otherwise designated under this Agreement for
reference to it and, where not so designated, such other
audits, reviews, tests and/or checks as the Executive
Committee may from time to time reasonably require (having
regard, in particular, to the disruptive effect of the same
on the business and operations of the Parties),
and to assist, upon request of the Executive Committee, in the
preparation of Works Programmes pursuant to Clause 5.9.
The Executive Committee shall have the right at any time and from time
to time (after consultation with the Settlement System Administrator)
to remove from office as Pool Auditor any firm of accountants so
appointed by it, but the Executive Committee shall ensure that there
shall at all times be a Pool Auditor.
47.2 Scheduling and Despatch Review:
47.2.1 The Grid Operator shall (after consultation with the
Executive Committee) decide upon the appointment from time
to time of such firm of accountants of internationally
recognised standing as the Executive Committee shall approve
(such approval not to be unreasonably withheld or delayed)
to carry out reviews ("Scheduling and Despatch Reviews") of
the Scheduling and Despatch processes under the Grid Code,
such reviews to be carried out, until the first anniversary
of the Effective Date, at such time or times as shall be
agreed between the Grid Operator and the Executive Committee
and, thereafter, annually. The objective and scope of each
such review is set out in Schedule 19.
47.2.2 The Grid Operator shall have the right at any time and from
time to time (after consultation with the Executive
Committee) to decide upon the removal from office of the
firm of accountants so appointed by it with the consent of
the Executive Committee (such consent not to be unreasonably
withheld or delayed).
47.2.3 The auditor carrying out the Scheduling and Despatch Review
shall report to the Grid Operator.
47.3 Scope of work:
47.3.1 The terms of engagement and scope of the work to be carried
out by the Pool Auditor shall be in accordance with the
terms of this Agreement and as determined from time to time
by the Executive Committee (after consultation with the Pool
Auditor and, where appropriate, the Settlement System
Administrator or the Pool Funds Administrator) and the Pool
Auditor shall report to the Executive Committee. The
Executive Committee shall, upon request, provide each Pool
Member, the Director, any Party which has applied pursuant
to Clause 8.2 to become a Pool Member and (as appropriate)
the Settlement System Administrator or the Pool Funds
Administrator with a copy of such terms of engagement.
47.3.2 Any opinion or report of the auditor carrying out the
Scheduling and Despatch Review shall be addressed to the
Grid Operator (for its own benefit) and a copy thereof shall
be sent to the Executive Committee and to each Pool Member,
the Director, the Settlement System Administrator and the
Pool Funds Administrator (each of whom shall be entitled to
rely on it).
47.4 Notification of disputes: Upon written request of the Pool Auditor or,
where the dispute relates to Scheduling and Despatch, the auditor
carrying out the Scheduling and Despatch Review, a Party shall promptly
provide the Pool Auditor or (as the case may be) the auditor carrying
out the Scheduling and Despatch Review with a written statement of all
disputes under or in connection with this Agreement or any Ancillary
Services Agreement which are then outstanding and which involve such
Party or which the relevant Party believes may arise and are likely to
involve such Party, and (subject to any supervening obligations of
confidentiality binding on such Party) such statement shall include
reasonable details of each such dispute.
48. AUDIT INSTRUCTIONS
48.1 Frequency:
48.1.1 Audits, tests, reviews and checks pursuant to Clause 47.1
shall be carried out at such time or times as the Executive
Committee shall determine (after consultation with the Pool
Auditor and, where appropriate, the Settlement System
Administrator or the Pool Funds Administrator) and any such
audit, test, review or check shall relate to such period(s)
as the Executive Committee and the Pool Auditor shall agree.
48.1.2 The review pursuant to Clause 47.2 shall be carried out at
such time or times as the Grid Operator shall determine and
the Executive Committee shall approve (such approval not to
be unreasonably withheld or delayed).
48.1.3 In good time before each annual general meeting of Pool
Members:-
(a) the Executive Committee shall instruct the Pool Auditor
to prepare the report referred to in Clause 9.1.2; and
(b) the Grid Operator shall instruct the auditor carrying
out the Scheduling and Despatch Review to prepare the
report referred to in Clause 47.2.3.
48.2 Opinions and reports: Any opinion or report of the Pool Auditor
required by the Executive Committee shall be addressed to the Executive
Committee for the benefit of all Pool Members and to such other
person(s) as the Executive Committee may direct and a copy thereof
shall be sent by the Executive Committee to each Pool Member and the
Director and, if requested and the Executive Committee approves, the
Settlement System Administrator and the Pool Funds Administrator (and
the Settlement System Administrator and the Pool Funds Administrator
shall be entitled to rely upon the same in any legal proceedings
(including arbitration)).
48.3 Concerns and recommendations:
48.3.1 In instructing the Pool Auditor in respect of any of the matters referred
to in Clause 47.1 the Executive Committee shall require the Pool Auditor:-
(a) forthwith to report any material concerns with respect to
matters the subject of the relevant audit, test, review and/or check; and
(b) to make such recommendations as to changes in the
procedures, controls and/or audit coverage as the Pool Auditor considers
appropriate.
Upon receipt of any such report or recommendation the
Executive Committee shall, after consultation with the
Settlement System Administrator or (in the case of the
review referred to in Clause 47.1.2) the Pool Funds
Administrator, prepare and send or cause to be prepared and
sent a report to Pool Members, the Pool Auditor and the
Director and the Settlement System Administrator or (as the
case may be) the Pool Funds Administrator enclosing a copy
of the Pool Auditor's report or recommendation. The
Executive Committee shall instruct the Settlement System
Administrator or (as the case may be) the Pool Funds
Administrator to carry out such corrective action as the
Pool Members in general meeting may approve or (where such
approval is not required by the terms of this Agreement) as
the Executive Committee may resolve consequent upon receipt
of the Executive Committee's report (which the Settlement
System Administrator and the Pool Funds Administrator
undertake promptly to do).
48.3.2 In instructing the auditor in respect of the Scheduling and
Despatch Review the Grid Operator shall require the auditor
to make the reports and recommendations referred to in
Clauses 48.3.1(a) and (b). Upon receipt of a copy of any
such report or recommendation the Executive Committee shall,
after consultation with the Settlement System Administrator
and the Grid Operator, prepare or send or cause to be
prepared and sent a report to Pool Members, the auditor
carrying out the Scheduling and Despatch Review and the
Settlement System Administrator enclosing a copy of the
report or recommendation. The Executive Committee may
instruct the Grid Operator to carry out such corrective
action as may be reasonable and practicable in all the
circumstances and which is consistent with the Grid Code
which the Pool Members in general meeting shall approve.
48.4 Access:
48.4.1 To the extent that the Pool Auditor reasonably requires in
order to be satisfied that the Pool Funds Administrator is
complying with its obligations under this Agreement and the
Agreed Procedures, the Pool Funds Administrator shall permit
the Pool Auditor unrestricted access to its operation of the
Funds Transfer System, the Funds Transfer Hardware and the
Funds Transfer Software and all data used, information held
and records kept by the Pool Funds Administrator or its
agents in the conduct of that operation and shall make
available members of its staff to explain such operation and
such other issues as the Pool Auditor considers relevant.
48.4.2 The Grid Operator shall permit the auditor carrying out the
Scheduling and Despatch Review unrestricted access to that
part of its business as relates to Scheduling and Despatch
and the operation of BPS GOAL and all data used, information
held and records kept by the Grid Operator in the conduct of
such business and shall make available members of its staff
to explain such operations and such other issues as the
auditor considers relevant.
48.5 Costs:
48.5.1 The costs of any corrective action on the part of the
Settlement System Administrator pursuant to Clause 48.3.1
shall be as agreed between the Pool Auditor and the
Executive Committee (after consultation with the Settlement
System Administrator) and shall be borne in accordance with
the PFA Accounting Procedure.
48.5.2 The costs of any audit, test, review or check pursuant to
Clause 47.1.1 to 47.1.5 (inclusive) and any corrective
action on the part of the Pool Funds Administrator pursuant
to Clause 48.3.1 shall be as agreed between the Pool Auditor
and the Executive Committee (after consultation with the
Pool Funds Administrator in the case of any such corrective
action) and shall be borne by the Pool Funds Administrator
and recovered by it in accordance with the PFA Accounting
Procedure.
48.5.3 The costs of any review pursuant to Clause 47.2 and any corrective action
on the part of the Grid Operator pursuant to Clause 48.3.2 shall be borne
by the Grid Operator.
48.6 Conflict: The Executive Committee shall require the Pool Auditor and the
auditor carrying out the Scheduling and Despatch Review to disclose to the
Executive Committee the existence and nature of all audit assignments with
any Party.
48.7 Own auditors' review: Each Pool Member may request of the Executive
Committee that its own external auditors be permitted to liaise with
the Pool Auditor and the auditor carrying out the Scheduling and
Despatch Review in accordance with normal professional standards,
including provision of access to working papers. The Executive
Committee shall take such steps as may reasonably be required of it to
ensure that each of the Pool Auditor and the auditor carrying out the
Scheduling and Despatch Review co-operates accordingly (subject to
Clause 48.9).
48.8 Pool Auditor's rights: The Pool Auditor shall be entitled to attend and
speak at meetings of the Executive Committee and at general meetings
and separate general meetings of Pool Members. The Pool Auditor shall
be entitled to resign upon giving prior notice to the Executive
Committee (the period of such notice (if any) to be as set out in the
terms of its appointment). Should the Pool Auditor resign, be removed
from office or not be reappointed the Pool Auditor shall have the right
to communicate directly with Pool Members if it believes there are
matters which should be brought to their attention.
48.9 Confidentiality:
48.9.1 The Pool Auditor shall as a condition precedent to its
appointment execute a confidentiality undertaking in favour
of each of the Settlement System Administrator, the Pool
Funds Administrator, the Grid Operator and the Ancillary
Services Provider and the Executive Committee on behalf of
all Pool Members in such form as may be reasonably required
from time to time by the Executive Committee.
48.9.2 The auditor carrying out the Scheduling and Despatch Review
shall as a condition precedent to its appointment execute a
confidentiality undertaking in such form as may be
reasonably required from time to time by the Grid Operator
and which shall be approved by the Executive Committee (such
approval not to be unreasonably withheld or delayed).
48.9.3 If requested by the Settlement System Administrator, the
Pool Funds Administrator, the Grid Operator or the Ancillary
Services Provider, the auditor carrying out the Scheduling
and Despatch Review shall execute a confidentiality
undertaking in favour of the relevant one of them in such
form as the Executive Committee may from time to time
approve (such approval not to be unreasonably withheld or
delayed).
48.10 Scheduling and Despatch Auditor: The auditor appointed to carry out the
Scheduling and Despatch Review shall be entitled to attend and speak at
meetings of the Executive Committee and at general meetings and
separate general meetings of Pool Members where matters relating to
Scheduling and Despatch are to be discussed or considered. The auditor
shall be entitled to resign upon giving prior notice to the Grid
Operator (who shall send a copy forthwith to the Executive Committee)
(the period of such notice, if any, to be as set out in the terms of
its appointment). Should the auditor resign, be removed from office or
not be reappointed it shall have the right to communicate directly with
Pool Members if it believes that there are matters which should be
brought to their attention.
PART X
THE GRID OPERATOR'S RESPONSIBILITIES
49. RESPONSIBILITIES
The Grid Operator shall have the following duties, responsibilities and
obligations under this Agreement:-
49.1 PORTHOLE: Ensuring that, insofar as relevant to the operation of the
Settlement System and the Pool Rules, PORTHOLE will in its operation comply
with its user and functional specifications.
49.2 Services: Making available to any successor Settlement
System Administrator those services necessary for the proper
functioning of the Settlement System which the Grid Operator
made available to the incumbent Settlement System
Administrator at any time in the twelve month period prior
to the resignation or removal of such incumbent Settlement
System Administrator, in any such case upon such terms as
may be agreed between the Grid Operator, such successor
Settlement System Administrator and the Executive Committee.
49.3 Generally: Such other duties, responsibilities and obligations as
are set out in this Agreement.
50. STANDARD OF CARE
50.1 Standard of care: In the exercise of its duties and responsibilities
under this Agreement the Grid Operator shall exercise that degree of
care, diligence, skill and judgment which would ordinarily be expected
of a reasonably prudent operator of the NGC Transmission System taking
into account the circumstances actually known to the Grid Operator, its
officers and employees at the relevant time or which ought to have been
known to it or them had it or they made such enquiries as were
reasonable in the circumstances.
50.2 Miscellaneous:
50.2.1 (a) The Grid Operator shall be entitled to rely upon
any direction or instruction of the Executive
Committee or the Chief Executive (if any) if the same
is signed by way of authority in accordance with
Clause 50.2.4 on behalf of two or more Committee
Members or on behalf of the Chief Executive and shall
not be obliged to comply with any direction or
instruction of any sub-committee of the Executive
Committee or any delegate of the Executive Committee
other than the Chief Executive (unless such direction
or instruction is shown as having been ratified by the
Executive Committee).
(b) The Grid Operator shall be entitled to rely upon any
communication or document reasonably believed by it to
be genuine and correct and to have been communicated
or signed by the person by whom it purports to be
communicated or signed and shall not be liable to any
of the Parties for any of the consequences of such
reliance.
50.2.2 Compliance with the Director's directions: No liability
whatsoever shall attach to the Grid Operator as a result of
due compliance by it with any directions and instructions of
the Director, provided that in complying with such directions
and instructions the Grid Operator is at all times acting in
good faith.
50.2.3 Prior approval: Where by the terms of this Agreement the Grid
Operator is required to obtain the prior directions,
instructions, approval or consent of the Executive Committee
or the Chief Executive, the Grid Operator shall have no
authority to, and shall not, act unless the requisite
directions, instructions, approval or consent have first been
obtained. Notwithstanding the foregoing sentence, nothing in
this Agreement shall prevent the Executive Committee from
ratifying any act of the Grid Operator.
50.2.4 Express authority: All directions and instructions of the
Executive Committee or the Chief Executive to the Grid
Operator shall, as between the Grid Operator and the Pool
Members, be deemed to have the express authority of, and shall
be binding without reservation upon, all Pool Members.
50.2.5 Authority of Pool Members: The Grid Operator shall not be
bound to act in accordance with the directions or instructions
of the Pool Members unless the Pool Members act through the
Executive Committee.
50.2.6 General Meetings: The Grid Operator shall not be obliged to
take any steps to ascertain whether any resolution of Pool
Members in general meeting or of any class of Pool Members in
separate general meeting which it is advised by the Executive
Committee or the Chief Executive as having been passed was in
fact passed or passed by the requisite majority and until the
Grid Operator shall have express written notice to the
contrary from the Executive Committee or the Chief Executive
it shall be entitled to assume that the relevant resolution
was passed or (as the case may be) the relevant requisite
majority was obtained.
50.2.7 Exceptions: Notwithstanding the foregoing provisions of this
sub-clause 50.2, in the performance of its duties and
responsibilities under this Agreement the Grid Operator shall
not be bound to act in accordance with the directions or
instructions of the Executive Committee or the Chief Executive
if:-
(a) to do so would cause the Grid Operator to breach any of its
obligations under the Act or its Transmission Licence; or
(b) the Grid Operator has reasonable grounds for believing
that it would so breach any of such obligations and
has consulted the Director and:-
(i) the Director has not indicated that in his view it would not
involve any such breach; or
(ii) the Director has indicated that,
notwithstanding any such actual or potential
breach, the Director would not be minded to
enforce compliance with those obligations and
the Grid Operator has received an indemnity
reasonably satisfactory to it in respect of
its acting in accordance with such directions
and instructions.
In any such event the Grid Operator shall promptly notify the
Executive Committee.
50.2.8 Reference to the Director: If at any time the Grid
Operator has a concern which is properly and reasonably
founded that, in acting in accordance with any direction or
instruction of the Executive Committee or the Chief
Executive, it will breach one or more of its obligations
under the Act or its Transmission Licence, then, if having
discussed the matter with the Executive Committee the matter
remains unresolved, the Grid Operator shall either comply
with such direction or instruction or by notice in writing
refer the same to the Director, such notice to set out in
full the directions or instructions given to the Grid
Operator and the grounds for such concern and to be copied
to the Executive Committee. Pending any guidance from the
Director in response to any such reference and, provided
that the Director shall not express any view that such
reference is misconceived, vexatious or in respect of an
improperly or unreasonably founded concern, the Grid
Operator shall not be liable to any of the other Parties for
refusing to act in accordance with the relevant direction or
instruction. If the Director shall express such a view, the
Grid Operator shall be so liable.
PART XI
ANCILLARY SERVICES AND THE
ANCILLARY SERVICES PROVIDER
51. ANCILLARY SERVICES
51.1 Obligations: The obligations of the Ancillary Services
Provider and the Grid Operator pursuant to this Clause 51
shall be owed to each and every Supplier.
51.2 Obligations of Ancillary Services Provider: The Ancillary
Services Provider shall:-
51.2.1 implement, maintain and operate all such systems as are
necessary to enable it properly to carry on the Ancillary
Services Business in accordance with the Transmission
Licence;
51.2.2 operate the Ancillary Services Business in an efficient
and economic manner;
51.2.3 maintain such records, data and other information as the
Pool Auditor may from time to time by notice in reasonable
detail to the Ancillary Services Provider reasonably require
for the purposes of this Part XI or as may otherwise be
reasonably necessary to enable the Ancillary Services
Provider to comply promptly and fully with its obligations
under this Agreement;
51.2.4 retain in electronic or machine readable form for a period
of not less than eight years (or such longer period as the
Pool Auditor may from time to time reasonably require),
copies of all records, data and information referred to in
Clause 51.2.3 in respect of the Ancillary Services;
51.2.5 provide to the Settlement System Administrator who shall
promptly provide the same to each Supplier monthly and
annual statements giving aggregate payment details
separately in respect of each of the following items:-
(a) Reactive Energy;
(b) frequency control;
(c) Black Start Capability (as defined in the Grid Code);
(d) lost opportunity costs;
(e) supplies of Ancillary Services to Externally
Interconnected Parties;
(f) adjustments for disputes which have been settled or
otherwise determined; and
(g) the Ancillary Services Provider's business charges,
together with a statement of the sum of all such items, and
each of the Parties agrees to such information being so
provided;
51.2.6 not transfer or seek to transfer any of its duties or
responsibilities as Ancillary Services Provider save to
NGC's successor as Grid Operator where NGC is removed as
Grid Operator (but not further or otherwise);
51.2.7 upon a successor Grid Operator being appointed (so far as it
is able), transfer to such successor all data, records,
other information, assets, equipment, facilities, rights and
know-how which it has (excluding freehold and leasehold real
property) and which are necessary to carry out the duties
and responsibilities of the Ancillary Services Provider and
which are not otherwise readily obtainable by such successor
including all original and copy material relating to the
same and, in consideration for such transfer, the Suppliers
shall jointly and severally pay to the Ancillary Services
Provider a reasonable sum to reflect the costs of, and the
costs of transferring, such material, such sum to be
determined pursuant to Clause 83 in default of agreement
between the Suppliers and Ancillary Services Provider; and
51.2.8 ensure that all agreements or arrangements for the provision
of Ancillary Services to Externally Interconnected Parties
are on the best commercial terms reasonably available.
51.3 Obligations of Suppliers: Each Supplier shall pay the Ancillary
Services Provider the amount allocated to such Supplier for Ancillary
Services in any Settlement Period for Ancillary Services in accordance
with this Agreement.
51.4 Obligation of Grid Operator: The Grid Operator shall enforce the Master
Connection and Use of System Agreement and each Supplemental Agreement
(insofar as it concerns the provision of Ancillary Services) in
accordance with their respective terms in all circumstances in which it
is reasonable to do so having regard to its obligations under the Act,
the Transmission Licence and the Grid Code.
51.5 Audit of Ancillary Services:
51.5.1 The Suppliers may require the Pool Auditor to carry out
audits, tests, checks or reviews in relation to the
operation by the Ancillary Services Provider of the
Ancillary Services Business as Suppliers may from time to
time reasonably require (having regard, in particular, to
the disruptive effect of the same on the business and
operations of the Ancillary Services Provider). The terms of
engagement for any such audit, test, check or review shall
be made available to the Ancillary Services Provider.
51.5.2 The Suppliers shall not require more than two audits, tests,
checks and reviews pursuant to Clause 51.5.1 in any Accounting Period.
51.5.3 On instructing the Pool Auditor pursuant to Clause 51.5.1, the
Supplier(s) concerned may require the Pool Auditor:-
(a) forthwith to report any material concerns with respect
to matters the subject of the relevant audit, test, check or review; and
(b) to make such recommendations as to changes in the
procedures, controls and/or audit coverage of the
Ancillary Services Business as the Pool Auditor
considers appropriate.
51.5.4 The Ancillary Services Provider shall permit the Pool
Auditor such access to its Ancillary Services' operations
and all records, documents, data and other information
(other than Excluded Information) held by the Ancillary
Services Provider in the conduct of such operations in each
case as the Pool Auditor may reasonably require and shall
make available members of its staff to explain such
operations and such other issues as the Pool Auditor
considers relevant. The Pool Auditor shall not disclose and
shall not be obliged to disclose to any Supplier details of
prices paid to each Generator by the Ancillary Services
Provider.
In this Clause 51.5 "Excluded Information" means all
records, documents, data and other information provided in
the course of the discussions or negotiations with any
person with whom the Ancillary Services Provider contracts
or considers contracting for the provision of Ancillary
Services other than as stated in any Ancillary Services
Agreement whether such discussions or negotiations take
place before contracting or as part of any price review
during the term of any Ancillary Services Agreement.
51.5.5 The Pool Auditor shall report to the Suppliers and a copy of
any report by the Pool Auditor relating to an audit, test,
check or review pursuant to Clause 51.5.1 shall be provided
to the Ancillary Services Provider. The Pool Auditor shall
owe a duty of confidentiality to the Ancillary Services
Provider save to the extent necessary to carry out the
particular audit, test, check or review provided that any
matter or thing set out in any report to the Suppliers shall
not be subject to any such obligation and provided always
that nothing in this Clause 51.5.5 shall prevent the
disclosure of any information pursuant to Clause 69. The
Ancillary Services Provider shall be entitled to rely on any
such report in any legal proceedings (including
arbitration).
51.5.6 If the Suppliers so resolve, the Ancillary Services Provider
shall promptly implement any recommendations made by the
Pool Auditor in a report relating to an audit, test, check
or review pursuant to Clause 51.5.1 and, in the event of any
dispute, such dispute shall be referred to arbitration in
accordance with Clause 83.
51.5.7 The cost of any audit, test, check or review pursuant to
Clause 51.5.1 shall be borne by the requisitioning
Supplier(s). The costs of implementing any recommendations
pursuant to Clause 51.5.6 may be recovered by the Ancillary
Services Provider in accordance with the ASP Accounting
Procedure.
51.6 Basis of Payment: The Ancillary Services Provider shall calculate the
total amount payable under Ancillary Services Agreements in respect of
each Settlement Day together with any amendments to calculations made
for previous Settlement Days based upon information derived from the
Grid Operator and the Settlement System Administrator. The charges to
Suppliers for Ancillary Services shall comprise the costs so calculated
together with the charges of the Ancillary Services Provider calculated
in accordance with Schedule 18. The Ancillary Services Provider shall
notify a provisional sum to the Settlement System Administrator within
three working days after receipt of such information from the Grid
Operator and the Settlement System Administrator so as to be despatched
by the Settlement System Administrator to Suppliers in accordance with
the relevant Agreed Procedure to enable the Settlement System
Administrator to apportion this sum to the sale of Active Energy
according to the Pool Rules. The Ancillary Services Provider shall
notify a final sum to the Settlement System Administrator by such time
as will enable the Settlement System Administrator to take into account
the final Settlement Run for each Settlement Day. Any unresolved amount
shall be included in the final Settlement Run on an interim basis
pending resolution. Thereafter it may be included (together with any
errors or omissions subsequently arising) in any appropriate Settlement
Run.
51.7 Lost opportunity costs:
51.7.1 Subject to Clause 51.6, where the Ancillary Services
Provider pays any Generator an amount in respect of lost
opportunity costs the Ancillary Services Provider shall use
reasonable endeavours to include any such amounts in its
Ancillary Service charge to Suppliers in the Settlement Day
on which it arises or as soon as possible thereafter.
51.7.2 As soon as the Ancillary Services Provider is notified by
any Generator that any obligation to pay any lost
opportunity costs may arise it shall consult the Suppliers
and, without prejudice to the Ancillary Services Provider's
right to recover such lost opportunity costs from Suppliers,
if requested by the Suppliers shall recover such lost
opportunity costs over such a period as may be agreed
between the Ancillary Services Provider and the Suppliers
and, in default of agreement, over such period as the
Ancillary Services Provider considers to be reasonable.
51.8 Independent Contractor: The Ancillary Services Provider shall act as an
independent contractor in carrying out its duties pursuant to this
Agreement and (unless expressly authorised to the contrary) shall
neither act nor hold itself out nor be held out as acting as agent for
any of the Other Parties.
51.9 Standard of care: In the exercise of its duties and responsibilities
under this Agreement the Ancillary Services Provider shall exercise
that degree of care, diligence, skill and judgment which would
ordinarily be expected of a reasonably prudent operator of the
Ancillary Services Business taking into account the circumstances
actually known to the Ancillary Services Provider, its officers and
employees at the relevant time or which ought to have been known to it
or them had it or they made such enquiries as were reasonable in the
circumstances.
51.10 Miscellaneous:
51.10.1 (a) The Ancillary Services Provider shall be
entitled to rely upon any direction or
instruction of the Executive Committee or the
Chief Executive (if any) if the same is
signed by way of authority in accordance with
Clause 51.10.4 on behalf of two or more
Committee Members or on behalf of the Chief
Executive and shall not be obliged to comply
with any direction or instruction of any
sub-committee of the Executive Committee or
any delegate of the Executive Committee other
than the Chief Executive (unless such
direction or instruction is shown as having
been ratified by the Executive Committee);
(b) The Ancillary Services Provider shall be
entitled to rely upon any communication or
document reasonably believed by it to be
genuine and correct and to have been
communicated or signed by the person by whom
it purports to be communicated or signed and
shall not be liable to any of the Parties for
any of the consequences of such reliance.
51.10.2 Compliance with the Director's directions: No
liability whatsoever shall attach to the Ancillary
Services Provider as a result of due compliance by it
with any directions and instructions of the Director,
provided that in complying with such directions and
instructions the Ancillary Services Provider is at all
times acting in good faith.
51.10.3 Prior approval: Where by the terms of this Agreement
the Ancillary Services Provider is required to obtain
the prior directions, instructions, approval or
consent of the Executive Committee or the Chief
Executive, the Ancillary Services Provider shall have
no authority to, and shall not, act unless the
requisite directions, instructions, approval or
consent have first been obtained. Notwithstanding the
foregoing sentence, nothing in this Agreement shall
prevent the Executive Committee from ratifying any act
of the Ancillary Services Provider.
51.10.4 Express authority: All directions and instructions of
the Executive Committee or the Chief Executive to the
Ancillary Services Provider shall, as between the
Ancillary Services Provider and the Pool Members, be
deemed to have the express authority of, and shall be
binding without reservation upon, all Pool Members.
51.10.5 Authority of Pool Members: The Ancillary Services
Provider shall not be bound to act in accordance with
the directions or instructions of the Pool Members
unless the Pool Members act through the Executive
Committee.
51.10.6 General Meetings: The Ancillary Services Provider
shall not be obliged to take any steps to ascertain
whether any resolution of Pool Members in general
meeting or of any class of Pool Members in separate
general meeting which it is advised by the Executive
Committee or the Chief Executive as having been passed
was in fact passed or passed by the requisite majority
and until the Ancillary Services Provider shall have
express written notice to the contrary from the
Executive Committee or the Chief Executive it shall be
entitled to assume that the relevant resolution was
passed or (as the case may be) the relevant requisite
majority was obtained.
51.10.7 Exceptions: Notwithstanding the foregoing provisions
of this sub-clause 51.10, in the performance of its
duties and responsibilities under this Agreement the
Ancillary Services Provider shall not be bound to act
in accordance with the directions or instructions of
the Executive Committee or the Chief Executive if:-
(a) to do so would cause the Ancillary Services Provider to
breach any of its obligations under the Act or its
Transmission Licence; or
(b) the Ancillary Services Provider has
reasonable grounds for believing that it
would so breach any of such obligations and
has consulted the Director and:-
(i) the Director has not indicated that in his view it would not
involve any such breach; or
(ii) the Director has indicated that,
notwithstanding any such actual or
potential breach, the Director would
not be minded to enforce compliance
with those obligations and the
Ancillary Services Provider has
received an indemnity reasonably
satisfactory to it in respect of its
acting in accordance with such
directions and instructions.
In any such event the Ancillary Services Provider
shall promptly notify the Executive Committee.
51.10.8 Reference to the Director: If at any time the
Ancillary Services Provider has a concern which is
properly and reasonably founded that, in acting in
accordance with any direction or instruction of the
Executive Committee or the Chief Executive, it will
breach one or more of its obligations under the Act or
its Transmission Licence, then, if having discussed the
matter with the Executive Committee the matter remains
unresolved, the Ancillary Services Provider shall
either comply with such direction or instruction or by
notice in writing refer the same to the Director, such
notice to set out in full the directions or
instructions given to the Ancillary Services Provider
and the grounds for such concern and to be copied to
the Executive Committee. Pending any guidance from the
Director in response to any such reference and,
provided that the Director shall not express any view
that such reference is misconceived, vexatious or in
respect of an improperly or unreasonably founded
concern, the Ancillary Services Provider shall not be
liable to any of the other Parties for refusing to act
in accordance with the relevant direction or
instruction. If the Director shall express such a view,
the Ancillary Services Provider shall be so liable.
51.11Suppliers' Resolutions: Where any matter is reserved
under this Part XI or Schedule 18 for the Suppliers to
resolve, that matter shall be decided upon by the
majority vote of the Suppliers' representatives on the
Executive Committee.
51A. TRANSMISSION SERVICES
It is expressly acknowledged by the Parties that neither (i) the
termination or expiry of the provisions of Clause 51A, 51B or 51C of
this Agreement as in force immediately prior to the coming into effect
of this Clause 51A, including the Transmission Services Scheme ("TSS")
(as therein defined) and/or any addition to or amendment of any other
provision of this Agreement effected pursuant to those Clauses whilst
in force nor (ii) the termination or expiry of previous clauses in this
Agreement which related to UMIS2 (as was therein defined) shall
prejudice any Consumer's (as defined in the Pool Rules) or the Grid
Operator's (acting through its agent the Ancillary Services Provider)
accrued rights and liabilities under each of UMIS2 and/or TSS at the
date of such termination or expiry which accrued rights shall include,
for the avoidance of doubt, the ability to adjust sums calculated under
UMIS2 and/or TSS in respect of disputes arising after such termination
or expiry in respect of periods falling before such termination or
expiry.
51B. TRANSMISSION SERVICES SCHEME 2
General:
51B.1 Notwithstanding any other provision of this Agreement, the provisions
of this Clause shall govern the rights and obligations of the Parties
in relation to the Transmission Services Scheme 2.
51B.2 In Recital (G), this Clause 51B, Schedule 9 and Schedule 11, for so
long as amended by the provisions of Clause 51B.4, the term
"Transmission Services Scheme 2" means the scheme to provide an
incentive for the Grid Operator to minimise (taking into account other
associated costs) a proportion of the costs arising under this
Agreement and/or resulting from the operation of the NGC Transmission
System including those arising from the acquisition of Ancillary
Services, and more particularly:-
(a) which provides for payments between the Grid Operator (acting
through its agent the Ancillary Services Provider) and Consumers in relation
to:-
(i) the Transmission Services Uplift Payment, which
comprises a Reactive Power Daily Payment, a Transport
Uplift Daily Payment and an Energy Uplift Daily
Payment; and
(ii) the Transmission Losses Daily Payment; and
(b) which provides for an adjustment in relation to out of
merit costs,
in the form agreed pursuant to Clause 51B.6 as the same may be amended
from time to time in accordance with the terms of that Clause.
51B.3 The Transmission Services Scheme 2:
(a) The Parties agree (and agree that they will procure that the
Executive Committee will so agree) that in the period from
00.00 hours on 1st April, 1996 to 24.00 hours on 31st March,
1997 the Transmission Services Scheme 2, the amendments and/or
additions to the Pool Rules to implement the Transmission
Services Scheme 2 and the provisions of this Clause, shall
apply. This Clause 51B.3(a) may not be amended without the
prior written consent of all Parties.
(b) As indicated in Clause 51B.3(a), the provisions of Clause 51B,
the Transmission Services Scheme 2 and any addition to or
amendment of any other provisions of this Agreement or the
Pool Rules effected pursuant to this Clause 51B shall
terminate at 24.00 hours on 31st March, 1997, except for any
provision, addition or amendment which is required to continue
beyond that date to give effect to the operation of the
Transmission Services Scheme 2 in respect of any period before
that date.
51B.4 The Parties agree:-
(a) to be bound by the terms, conditions and other provisions of the
Transmission Services Scheme 2;
(b) that the Grid Operator (acting through its agent the Ancillary
Services Provider) and each Consumer shall make such payments as are
required and determined by the provisions of the amendments and/or
additions to the Pool Rules to implement the Transmission Services
Scheme 2;
(c) that for the period during which this Clause 51.B applies, the
following changes shall be made to the provisions of this Agreement:-
(i) in paragraphs 1, 5.4, 5.14, 17.5 and 17.6 of Schedule 11
references to the Ancillary Services Provider shall be deemed to
be references to itself and as agent for the Grid Operator in
relation to the Transmission Services Scheme 2;
(ii) in paragraph 2.1 of Schedule 11 the words "and the Transmission
Services Scheme 2" shall be inserted after the words "Ancillary
Services";
(iii)in paragraph 5.14 of Schedule 11 the words "or in respect of the
Transmission Services Scheme 2" shall be inserted after the first
reference to "Ancillary Services" and the words "or in respect of
the Transmission Services Scheme 2 for the relevant payment day"
shall be inserted after the words "that same day" and in
paragraph 5.15 of Schedule 11 the words "or the Ancillary
Services Provider" shall be inserted after the words "Pool
Member" wherever they occur in that paragraph; and
(iv) in Part 4 of Schedule 11, references to information in respect of
Ancillary Services shall be deemed to include information in
respect of the Transmission Services Scheme 2, in paragraph 17.5
the information required shall include the total amount payable
by the Ancillary Services Provider (exclusive of United Kingdom
Value Added Tax) pursuant to the Transmission Services Scheme 2
in respect of each Settlement Day, in paragraph 17.6 the Pool
Funds Administrator shall include in its verification the amount
shown to be payable by the Ancillary Services Provider pursuant
to the Transmission Services Scheme 2 in respect of each
Settlement Day and in paragraph 22.4 the Confirmation Notices
shall include the total amount payable by the Ancillary Services
Provider pursuant to the Transmission Services Scheme 2 in
respect of each Settlement Day.
51B.5 The Suppliers and the Grid Operator may request the Parties and the
Executive Committee promptly (and in any event before the date the
Transmission Services Scheme 2 is to take effect) to execute and do all
such acts, matters and things (including effecting amendments to the
Pool Rules) as may be necessary to give effect to the Transmission
Services Scheme 2. The Parties shall not refuse (and agree that they
will procure that the Executive Committee shall not refuse) any such
request on the grounds of any objections to any provisions of any of
the Annexes of Appendix 3 to the Pool Rules as agreed from time to time
between the Suppliers and the Grid Operator.
51B.6 Effectiveness:
Neither this Clause 51B (other than Clauses 51B.2, 51B.5 and this
Clause 51B.6), nor the Transmission Services Scheme 2, nor any
amendment, variation or replacement of either of them, nor any
amendment, variation or replacement to the Pool Rules relating to the
Transmission Services Scheme 2, may become effective except with the
prior agreement of the Suppliers (which agreement shall be given by the
passing of a resolution in a separate class meeting) and the prior
written agreement of the Grid Operator.
51B.7 Survival:
(a) Termination or expiry of the provisions of this Clause 51B,
the Transmission Services Scheme 2 and/or any addition to or
amendment of any other provision of this Agreement effected
pursuant to this Clause shall not prejudice any Consumer's or
the Grid Operator's accrued rights and liabilities under the
Transmission Services Scheme 2 at the date of such termination
or expiry, which accrued rights shall, for the avoidance of
doubt, include the ability to adjust sums calculated under the
Transmission Services Scheme 2 in respect of disputes arising
after such termination or expiry in respect of periods falling
before such termination or expiry; and
(b) the provisions of this sub-Clause 51B.7 and Clause 51B.3(b) shall
survive the termination of the Transmission Services Scheme 2.
51B.8 Definitions:
In, and in relation to, this Clause 51B "Consumer" shall bear the
meaning given to that term in the Pool Rules.
PART XII
SETTLEMENT RE-RUNS
52. SETTLEMENT RE-RUNS
52.1 Re-runs: The Parties acknowledge and agree that there may be
occasions following any final run of Settlement (as referred to
in paragraph D(3) of the Preamble to Schedule 9) when it is
necessary in respect of a Settlement Day (or part thereof) to
re-determine the trades of electricity pursuant to this Agreement
and the provision of Ancillary Services (whether to take account
of oversight or error, malfunction of the Settlement System
operation in accordance with Grid Operator Despatch instructions
issued under emergency circumstances, award of an arbitrator(s)
pursuant to Clause 83, court order or otherwise howsoever). The
Executive Committee, in consultation with the Settlement System
Administrator, the Pool Funds Administrator and the Pool Auditor
and, where appropriate, the Ancillary Services Provider and the
Grid Operator, shall decide how such re-determination is to be
effected, the re-allocation of moneys and the period of time over
which any such re-allocation is to take place, any such decision
to take account and give effect, as nearly as practicable, to the
principles and procedures set out in this Agreement (and, where
relevant, the award of the said arbitrator(s) or court order). In
particular, but without prejudice to the generality of the
foregoing, the Executive Committee may require following any
relevant final run of Settlement (and shall take due notice of
any request from the Ancillary Services Provider or the Grid
Operator to this effect) the Settlement System Administrator to
re-run, and the Settlement System Administrator shall re-run,
Settlement in respect of any Settlement Day (or relevant part
thereof) using the software and data originally used in respect
of such Settlement Day (or relevant part thereof) but subject to
such changes, amendments or additional inputs as may be required
by the Executive Committee (in consultation with the Ancillary
Services Provider, the Grid Operator or any other relevant party)
or by (as the case may be) such arbitrator(s) or court. Any such
re-run shall hereafter in this Clause 52 be referred to as a
"Re-run".
52.2 Timing: The Settlement System Administrator shall arrange for any
Re-run to be carried out as soon as is reasonably practicable following
request by the Executive Committee subject to the availability of
computer time, compatible software, appropriate data and other
resources.
52.3 Ancillary Services Provider: The Ancillary Services Provider shall have
the right to incorporate any delayed or disputed amount in respect of
the provision of Ancillary Services into Settlement without requiring a
Re-run.
52.4 Notification: The Executive Committee shall promptly notify each Party,
the Pool Auditor and the Director of each occasion on which it requires
the Settlement System Administrator to carry out any Re-run, the
reasons for such requirement, the timing thereof and the period to be
covered thereby and shall provide each Party with such information
about any Re-run as is relevant to such Party and shall provide the
Pool Auditor and the Director with full details of any Re-run.
52.5 Proviso: The foregoing provisions of this Clause 52 are subject to the
proviso that no Re-run shall be carried out, and neither the Executive
Committee nor any Party shall be entitled to require that a Re-run be
carried out, in respect of a Settlement Day or any part thereof after
the first anniversary of such Settlement Day, but so that this proviso
shall not restrict the right of any Party to claim or recover any
moneys properly due and owing to it under this Agreement.
PART XIII
RISK MANAGEMENT SCHEME
53. APPLICATION
53.1 Request: The Executive Committee shall send any Pool Member a
Scheme Admission Application within 28 days after receipt of a
request for the same from that Pool Member.
53.2 Scheme Admission Application: Any Pool Member may apply to the
Executive Committee to have any Centrally Despatched Generating
Unit admitted to the Scheme by completing and submitting to the
Executive Committee a duly completed Scheme Admission Application
not less than 40 days before the proposed date of admission to
the Scheme of that Centrally Despatched Generating Unit.
53.3 Admission: The Executive Committee shall admit any Centrally
Despatched Generating Unit to the Scheme in respect of which all
Scheme Admission Conditions are met.
53.4 Notification (1): If the Executive Committee determines that, in
respect of any Centrally Despatched Generating Unit, the Scheme
Admission Conditions have been met it shall forthwith and in any
event within 40 days after receipt of the Scheme Admission
Application notify the relevant Pool Member and the Settlement
System Administrator accordingly.
53.5 Notification (2): If the Executive Committee determines that, in
respect of any Centrally Despatched Generating Unit, the Scheme
Admission Conditions have not been met it shall forthwith and in
any event within 40 days after receipt of the Scheme Admission
Application notify the relevant Pool Member of the reasons why
the Scheme Admission Conditions have not been met.
53.6 Reference to the Director: In the event of any dispute between the
Executive Committee and the relevant Pool Member over whether such Pool
Member has fulfilled the Scheme Admission Conditions the same may be
referred by the Executive Committee or the relevant Pool Member to the
Director for determination, whose determination shall be final and
binding for all purposes.
54. SCHEME ADMISSION CONDITIONS
The Scheme Admission Conditions are that:-
54.1 No person has an Accountable Interest in the Centrally
Despatched Generating Unit which is the subject of the
Scheme Admission Application which, when added to the
Accountable Interests of that person in other Generating
Units (whether situate within England and Wales or
elsewhere), exceeds in aggregate 1500MW;
54.2 The Pool Member does not have an Accountable Interest
(excluding any Accountable Interest of less than 10MW) in
more than four Generating Units (whether situate within
England and Wales or elsewhere). For the avoidance of doubt
a combined cycle module shall be deemed for these purposes a
single Generating Unit;
54.3 The Centrally Despatched Generating Unit which is the subject of
the Scheme Admission Application has not at the date of the
Scheme Admission Application been Commissioned;
54.4 The Centrally Despatched Generating Unit shall be admitted for
seven calendar years from the date of its admission to the Scheme
specified in the Scheme Admission Application; and
54.5 The Pool Member shall specify in the Scheme Admission Application
the proposed Scheme Planned Availability for each Settlement
Period in the proposed first Scheme Year for the Centrally
Despatched Generating Unit.
55. RIGHTS AND OBLIGATIONS OF POOL MEMBERS
55.1 Notification of unavailability: In respect of each Scheme Year for each
Scheme Genset (other than the first) the Pool Member shall not later
than 28 days before the start of that Scheme Year for each Scheme
Genset notify the Executive Committee of all Settlement Periods in that
Scheme Year during which the Scheme Genset is intended to be
unavailable.
55.2 Scheme Planned Availability: All Settlement Periods in that
Scheme Year other than those notified under Clause 55.1 shall
together constitute the Scheme Planned Availability in respect of
that Scheme Genset for that Scheme Year.
55.3 Failure to notify: If the Pool Member fails to notify the Executive
Committee in accordance with Clause 55.1 of the Scheme Planned
Availability in respect of that Scheme Genset for the following Scheme
Year, the Scheme Planned Availability shall be deemed to be the same as
the Scheme Planned Availability for the current Scheme Year.
55.4 No amendment: The Scheme Planned Availability for any Scheme Year
notified in accordance with Clause 55.1 or deemed in accordance
with Clause 55.3 may not be amended.
55.5 Payment rights: The Pool Member shall make or be entitled to
receive payments in respect of each Scheme Genset as determined
in accordance with Section 27 of Schedule 9 notwithstanding the
expiry of the period referred to in Clause 50.4.
55.6 No withdrawal: The Pool Member may not withdraw any Scheme Genset
from the Scheme during any period referred to in Clause 50.4
applicable to that Scheme Genset.
55.7 Actual planned availability: In respect of each Scheme Genset, the Pool
Member shall use all reasonable endeavours to ensure that the Scheme
Planned Availability for each Scheme Year is the actual planned
availability of such Scheme Genset.
56. REVIEW
56.1 Review: Within two months after the end of the third Scheme Year in
respect of which the first Scheme Genset has been admitted to the
Scheme and each subsequent anniversary of that date the Executive
Committee shall (with the consent of the Director) appoint an
independent firm of accountants of internationally recognised standing
to review the Scheme to establish whether or not any element of the
Scheme (or the Scheme taken as a whole) gives rise to a systematic
imbalance which is likely to prevent the payments to the Scheme
balancing payments from the Scheme and to submit to the Executive
Committee and the Director a report setting out details of any such
imbalance and his findings and recommendations for amending the Scheme
designed to correct any such imbalance.
56.2 Amendments: The Executive Committee may make such amendments to the
provisions of Section 27 of Schedule 9 as are required to implement the
recommendations referred to in Clause 56.1. Any such amendments shall
apply in respect of any Scheme Admission Application received after the
date such amendments become effective and shall constitute a new
Scheme.
56.3 Existing rights and obligations continue: Any Pool Member shall remain
entitled to the benefits and subject to the obligations of the Scheme
with respect to any Scheme Genset in effect at the time of admission of
that Scheme Genset to the Scheme.
PART XIV
FUEL SECURITY
57. DEFINITIONS
Definitions: In this Part XIV:-
"Fuel Security Interest" in relation to a particular Payment
Instruction, means the interest (if any) accruing on the Fuel Security
Payment or Fuel Security Reimbursement specified in that Payment
Instruction pursuant to sub-clause 2.08 of Part 5 of the Fuel Security
Code;
"Fuel Security Ledger" means any ledger required to be maintained by
the Pool Funds Administrator in accordance with Clause 59;
"Fuel Security Payment" means the amount specified in a Payment
Instruction which a Generator is entitled to recover from those persons
specified in that Payment Instruction (excluding Fuel Security
Interest, if any, in relation thereto);
"Fuel Security Reimbursement" means the amount specified in a Payment
Instruction which a Generator is liable to reimburse to those persons
specified in that Payment Instruction (excluding Fuel Security
Interest, if any, in relation thereto); and
"Payment Instruction" means an instruction which has been duly
authorised and delivered by a Generator to whom the Fuel Security Code
applies to the Pool Funds Administrator in the form, and in the manner,
specified in the Fuel Security Code.
58. PAYMENT INSTRUCTIONS
58.1 Effect of a Payment Instruction: Following delivery of a Payment
Instruction to the Pool Funds Administrator:-
58.1.1 any Fuel Security Payment specified in that Payment
Instruction (together with any Fuel Security Interest in
relation thereto) shall be treated as an amount which is due
to that Generator from those persons specified in that
Payment Instruction and which is payable on the basis
provided in that Payment Instruction; and
58.1.2 any Fuel Security Reimbursement specified in that Payment
Instruction (together with any Fuel Security Interest in
relation thereto) shall be treated as an amount which is due
from that Generator to those persons specified in that
Payment Instruction and which is payable on the basis
provided in that Payment Instruction; and
58.1.3 subject to Clauses 58.2 and 58.3, the Pool Funds
Administrator shall arrange for such Fuel Security Payment
or such Fuel Security Reimbursement (together with any Fuel
Security Interest in relation thereto) to be paid to or, as
the case may be, paid by that Generator by or, as the case
may be, to those persons specified in that Payment
Instruction in accordance with the provisions of such
Payment Instruction; and
58.1.4 such Payment Instruction (including any calculation,
determination or other matter stated or specified therein)
shall, save in the case of fraud, be conclusive and binding
upon all Parties.
58.2 Clarification: If the Pool Funds Administrator considers either that
the basis of payment of a Fuel Security Payment or a Fuel Security
Reimbursement provided for in a Payment Instruction is unclear,
contradictory or incomplete or that it is impossible to implement in
full the basis of payment provided for in a Payment Instruction, then
the Pool Funds Administrator must, promptly on becoming aware of the
same, notify the Director in reasonable detail of the same and, until
that matter is clarified, the Pool Funds Administrator shall only be
obliged to implement the payment specified in that Payment Instruction
to the extent that without clarification such implementation is
possible.
58.3 Failure to specify or clarify: If a Payment Instruction fails to
specify the basis upon which the Fuel Security Payment or a Fuel
Security Reimbursement specified in that Payment Instruction must be
paid or if the Director fails to clarify any matter notified to it in
accordance with Clause 58.2 within ten Business Days of such
notification then the Pool Funds Administrator shall arrange for the
relevant payment to be made on such basis as the Executive Committee
shall, with the written approval of the Director, determine to be
appropriate.
59. RECORD KEEPING AND PAYMENTS
59.1 Fuel Security Ledgers:
59.1.1 Following delivery of a Payment Instruction to the Pool
Funds Administrator, the Pools Funds Administrator shall, if
he has not already done so, open and thereafter maintain a
Fuel Security Ledger in the name of that Generator and shall
record therein all amounts (together with any Fuel Security
Interest in relation thereto) due to and from that Generator
that are specified in Payment Instructions and shall also
record therein all transactions arranged by the Pool Funds
Administrator for payments to be made to and from that
Generator in accordance with the provisions of Payment
Instructions.
59.1.2 The Pool Funds Administrator shall from the time that a Fuel
Security Ledger is opened until it records a nil balance
provide to each Generator and to each Supplier on the last
Business Day of each calendar month a statement reflecting
all entries recorded in the Fuel Security Ledger of that
Generator over the course of the previous month.
59.1.3 The Fuel Security Ledger of a Generator shall, except as
required by Clause 59.2.2 or Part IX, be kept confidential in
accordance with Part XX.
59.1.4 Each monthly statement provided under Clause 59.2.2 shall,
save in the case of manifest error, be deemed prima facie
evidence of the contents of that part of the Fuel Security
Ledger to which it relates.
59.1.5 Each Party shall promptly review each monthly statement
provided to it under Clause 59.2.2 and shall (without
prejudice to any of its rights under this Agreement) where
practicable within ten Business Days after receiving each
such statement notify the Pool Funds Administrator of any
inaccuracies in such statement of which it is aware.
59.1.6 If the Pool Funds Administrator at any time receives from a
Generator or any Supplier a notice disputing the accuracy of
the Fuel Security Ledger of that Generator, the Pool Funds
Administrator shall consult with the Party giving the notice
and use all reasonable endeavours to rectify any inaccuracy.
In the event that any inaccuracy in a Fuel Security Ledger
of a Generator is rectified, the Pool Funds Administrator
shall advise that Generator and the Suppliers of the
inaccuracy that was rectified.
59.2 Fuel Security Payments: Following delivery to the Pool Funds
Administrator of a Payment Instruction specifying a Fuel Security
Payment, the Pool Funds Administrator shall enter in the Fuel Security
Ledger of that Generator as a credit (a) the amount of the Fuel
Security Payment, and (b) thereafter, any Fuel Security Interest in
relation thereto.
59.3 Fuel Security Reimbursements: Following delivery to the Pool Funds
Administrator of a Payment Instruction specifying a Fuel Security
Reimbursement, the Pool Funds Administrator shall enter in the Fuel
Security Ledger of that Generator as a debit (a) the amount of the Fuel
Security Reimbursement, and (b) thereafter, any Fuel Security Interest
in relation thereto.
59.4 Other Entries: Any amount paid to or, as the case may be, paid by a
Generator in accordance with the provisions of a Payment Instruction
shall be entered as a debit or, as the case may be, a credit in the
Fuel Security Ledger of that Generator.
59.5 Set off: The Pool Funds Administrator shall, unless it reasonably
believes that it would be unlawful to do so, from time to time where
possible set off any amounts shown as credits in the Fuel Security
Ledger of a Generator against any amounts shown as debits in the Fuel
Security Ledger of that Generator in the order in which they were
entered. Any balance shown in the Fuel Security Ledger of a Generator
shall, if it is a credit, be paid to or, if it is a debit, be paid by
that Generator to the extent that it relates to a Payment Instruction
on the basis provided for in that Payment Instruction. The entitlements
and liabilities of a Generator (and the corresponding liabilities and
entitlements of the respective debtors and creditors of that Generator)
shall, to the extent that they have been set off as aforesaid, be
deemed satisfied and extinguished.
59.6 Schedule 11: All payments made to or by any Generator in accordance
with the provisions of a Payment Instruction shall, subject to any
contrary instruction contained in the provisions of a Payment
Instruction, be effected by the Pool Funds Administrator through the
Banking System and the Billing System established in accordance with
Schedule 11.
PART XV
METERING
60. METERING
60.1 Introduction: The rights and obligations of each Party to this
Agreement which enable the accurate measurement of Energy traded for
the purposes of this Agreement by appropriate metering installations
are as set out in this Part XV and also in Schedule 21, and the
provisions of Schedule 21 shall have effect and apply in the same
manner as the remaining provisions of this Agreement apply with respect
to each such Party.
60.2 General:
60.2.1 For the purposes of this Agreement the quantities of Active
Energy and Reactive Energy Exported or Imported by Parties
shall be measured and recorded through Metering Equipment
installed, operated and maintained and otherwise provided
for as set out in this Part XV and in Schedule 21. Each
Generating Unit (excluding for this purpose Generation
Trading Blocks) which is subject to Central Despatch shall
have separate Metering Equipment.
60.2.2 Each Party is required to register or procure that there is
registered with the Settlement System Administrator the
Metering System at each Site where such Party Exports or
Imports electricity except where such electricity is not
sold or purchased in accordance with the Pool Rules.
60.3 Registrants:
60.3.1 A Metering System shall have a Registrant and Operator (and
shall be commissioned in accordance with the relevant Code
of Practice) before the Settlement System Administrator is
required to take such Metering System and the data derived
therefrom into account for the purposes of Settlement.
60.3.2 Each Metering System (and the identities of its respective
Registrant and Operator) which the Settlement System
Administrator shall take into account for the purposes of
Settlement shall be as set out, for the time being and from
time to time, in the Register.
60.3.3 A Registrant's role in relation to a Metering System under this
Agreement shall continue until:-
(i) such Registrant ceases to be a Party or another Party
complying with the definition of Registrant accepts
such role as Registrant in accordance with the
provisions of this Agreement by service of a duly
completed notice in the form prescribed by the
relevant Agreed Procedure (but without prejudice to
any accrued liabilities of the previous Registrant);
or
(ii) the Plant or Apparatus of the Registrant, in respect
of such Metering System, ceases to be connected at the
relevant Site (as indicated in the notification to the
Settlement System Administrator in the form prescribed
by the relevant Agreed Procedure); or
(iii) in the case of a Registrant of a Metering System which
is at the point of connection between a Public
Electricity Supplier's Distribution System and a
Second Tier Customer, the Registrant ceases to act as
Second Tier Supplier in relation to the same at such
point of connection; or
(iv) in the case of a Registrant of a Metering System which
is at the point of connection between a Public
Electricity Supplier's Distribution System and an ERS
First Tier Customer, the Registrant ceases to act as
Supplier in relation to the same at such point of
connection; or
(v) in the case of a Registrant of a Metering System which
is at the point of connection between a Public
Electricity Supplier's Distribution System and a
Non-Pooled Generator, the Registrant ceases to act as
Supplier purchasing generation from such Non-Pooled
Generator in relation to the same at such point of
connection.
60.3.4 The Settlement System Administrator shall inform the relevant
Host PES of:-
(i) the identity of any new Registrant; and
(ii) any change in the identity of any existing Registrant,
of a Metering System in respect of which that Public
Electricity Supplier is Host PES, after such change is
notified to the Settlement System Administrator in
accordance with the terms of this Agreement.
60.3.5 There must always be one and, at any point in time, no more
than one Registrant for each Metering System which is
registered with the Settlement System Administrator.
60.3.6 Any notice of a new, or of a change in an existing,
Registrant, Equipment Owner Operator, Second Tier Customer,
ERS First Tier Customer, Non-Pooled Generator or Host PES or
any Form of Acknowledgement required under this Part XV or
Schedule 21 shall be in such form and given to such person
at such time(s) and accompanied by payment of such fees (if
any) as is prescribed by the relevant Agreed Procedures.
60.3.7 If a Metering System ceases to have a Registrant who is not
replaced as Registrant in relation to the relevant Metering
Equipment, the Settlement System Administrator shall not be
obliged to take the relevant Metering System into account
for the purposes of Settlement.
60.3.8 A Registrant may not resign or retire as Registrant except in
accordance with Clause 60.3.3.
60.3.9 The Registrant in respect of any Metering System shall
provide to the Settlement System Administrator such
information as may be required by the relevant Agreed
Procedures.
60.3.10 The Settlement System Administrator shall not enter on the
Register a Registrant in respect of which evidence of
consent of the Equipment Owner has not been provided in
accordance with the relevant Agreed Procedure.
60.3.11 Where a Metering System at the point of connection of two or
more Distribution Systems is to be registered with the
Settlement System Administrator, all interested Parties
shall agree upon and nominate the Registrant by means of a
duly completed nomination to the Settlement System
Administrator in the form prescribed by the relevant Agreed
Procedure.
60.3.12 A Metering System for recording the output of a Non-Pooled
Generator must be capable of being identified separately for
the purposes of Settlement from any Metering System
recording demand. For the avoidance of doubt, it is
acknowledged that one set of Metering Equipment may comprise
more than one separately-identified Metering System.
60.4 Operators:
60.4.1 There must always be one and, at any point in time, no more
than one Operator for each Metering System which is
registered with the Settlement System Administrator. A
replacement Operator of such Metering System may be
appointed from time to time in accordance with the
provisions of this Part XV, Schedule 21 and the relevant
Agreed Procedure.
60.4.2 All Metering Systems at the site of a Non-Pooled Generator,
which contain all or any part of the same Metering Equipment must
have the same Operator.
60.4.3 Any notice of a new Operator or of a change in Operator
(including upon resignation, removal or cessation in
accordance with the provisions of Schedule 21) or any Form
of Acknowledgement required under this Part XV or Schedule
21 shall be in such form and given to such person at such
time(s) and accompanied by payment of such fees (if any) as
is prescribed by the relevant Agreed Procedures. Where any
Meter Operator Party has not acknowledged its appointment as
Operator the Settlement System Administrator shall notify
the Registrant in accordance with the relevant Agreed
Procedure.
60.4.4 The Registrant in respect of a Metering System shall ensure
that there is appointed from time to time an Operator, which
is a Meter Operator Party, in accordance with, and for the
purposes of, Schedule 21 as Operator in respect of that
Metering System.
60.4.5 If a person which is an Operator in respect of any Metering
System ceases to be an Operator in respect thereof for
whatever reason (including upon removal or resignation) or
ceases to be a Meter Operator Party (including upon removal
or resignation) and there has not been appointed, at that
time, a replacement Operator in respect of the relevant
Metering System(s) in accordance with the provisions of this
Part XV and Schedule 21, such person's responsibilities as
Operator of such Metering Equipment shall upon such
cessation be assumed by the Registrant in respect of such
Metering Equipment who shall be deemed to be the Operator
therefor (notwithstanding that it shall not be registered as
such by the Settlement System Administrator) in accordance
with the provisions of this Clause (the "deemed Operator").
60.4.6 If a person which is an Operator in respect of any Metering
System at the site of a Non-Pooled Generator ceases to be an
Operator in respect thereof for whatever reason (including
upon removal or resignation) or ceases to be a Meter
Operator Party (including upon removal or resignation) and
there has not been appointed, at that time, a replacement
Operator in respect of the relevant Metering System(s) in
accordance with the provisions of this Part XV and Schedule
21, such person's responsibilities as Operator of the
relevant Metering Equipment shall upon such cessation be
assumed by the Registrant of the Metering System registered
for supply with respect to such Metering Equipment. Such
Registrant shall be deemed to be the Operator therefor
(notwithstanding that it shall not be registered as such by
the Settlement System Administrator) in accordance with the
provisions of this Clause (the "Deemed Operator").
60.4.7 As soon as any Registrant has reasonable grounds to believe
that an Operator of any Metering System in respect of which
it is the Registrant has ceased to act as Operator therefor
in accordance with substantially all of its responsibilities
as set out in Schedule 21 it shall remove such Operator in
respect of such Metering System in accordance with paragraph
6.1 of Schedule 21.
60.4.8 If the Settlement System Administrator has reasonable
grounds to believe that an Operator of any Metering System
has ceased to act as Operator therefor in accordance with
substantially all of its responsibilities as set out in
Schedule 21 the Settlement System Administrator shall notify
the Registrant in accordance with the relevant Agreed
Procedure.
60.4.9 Any Registrant which is deemed to be the Operator of a
Metering System pursuant to the provisions of Clause 60.4.5
shall, subject to Clauses 60.4.10 and 60.4.11, continue to
act as the Operator in respect of any Metering System to
which that Clause applies, or shall appoint an agent or
contractor which shall continue to act as the Operator in
respect of such Metering System, for a period of 10 Business
Days (which shall commence at the time of the cessation
referred to in Clause 60.4.4) or, if a new Operator is
registered in respect of that Metering System prior to the
expiry of that period, for a period ending on the date of
such registration.
60.4.10 If a Registrant to which Clause 60.4.9 applies does not act
as Operator in accordance with the provisions thereof or
does not appoint an agent or contractor who shall act as
Operator, or if the 10 Business Day period referred to in
Clause 60.4.9 shall expire without a replacement Operator
being registered with the Settlement System Administrator in
respect of that Metering System in accordance with paragraph
4 of Schedule 21, that Registrant shall:-
(i) undertake to cease forthwith to supply or to generate
or to take a supply of electricity for the purposes of
the sale or acquisition of electricity pursuant to
this Agreement at the site where such supply or
generation is measured, recorded and communicated to
the Settlement System Administrator by that Metering
System; and
(ii) notify the Settlement System Administrator in
accordance with the relevant Agreed Procedure of that fact.
60.4.11 During the period in which a Registrant is the deemed
Operator in accordance with this Clause it shall be required
(save only as expressly provided to the contrary in this
Agreement) to comply with the requirements of this Part XV
and Schedule 21 as Operator provided that, but without
prejudice to any liability to pay for Active or Reactive
Energy traded by it, such Registrant as deemed Operator:-
(i) shall not be required to be registered as Operator
with the Settlement System Administrator nor to comply
with the prescribed conditions for registration as
Operator from time to time in accordance with the
provisions of Schedule 21; and
(ii) shall not at any time when it is the deemed Operator
be required to incur significant capital expenditure
in the fulfilment of obligations contained in this
Part XV or Schedule 21 where:-
(a) the Metering Equipment shall have become
defective, inaccurate or in want of repair (the
"defective Metering Equipment") as a direct
consequence of the act or omission of any
previous Operator;
(b) the Registrant shall upon becoming aware of the
same have taken all steps to cease forthwith to
supply or to generate electricity for the
purposes of the sale or acquisition of
electricity pursuant to this Agreement at or in
relation to the site where such supply or
generation is measured, recorded and
communicated to the Settlement System
Administrator by the defective Metering
Equipment; and
(c) the Registrant shall have notified the
Settlement System Administrator in accordance
with the relevant Agreed Procedure of the fact
that the supply or generation has ceased.
Where (x) the Settlement System Administrator
proposes to exercise its right under paragraph 18 of
Schedule 21 to replace, renew or repair the
defective Metering Equipment (the "remedial work");
(y) the exercise of such right would result in the
incurring of significant capital expenditure; and
(z) the Register indicates that such Registrant is
acting as deemed Operator, the Settlement System
Administrator shall notify the Registrant before
undertaking such remedial work and shall give such
Registrant the opportunity to comply with (ii) (b)
and (c) above before commencing such remedial work.
60.5 Maintenance of Register and documents:
60.5.1 The Settlement System Administrator shall keep a register
recording:-
(i) each Metering System which is accepted for the purposes of the
Settlement System;
(ii) the respective identities in respect of each such Metering System
of:-
(a) the Registrant;
(b) the Operator;
(c) the Equipment Owner;
(d) the Host PES (where applicable);
(e) any Second Tier Customer, ERS First Tier
Customer or Non-Pooled Generator in respect
of a supply to which that Metering System is
being used; and
(f) any agent which may be appointed from time to
time by the Settlement System Administrator
for the purpose of data collection or, where
appropriate, of any Second Tier Agent in
respect of such Metering System or, where the
Settlement System Administrator does not
appoint or have currently appointed such
agent or Second Tier Agent in respect of a
Metering System, a note to this effect;
(iii) loss adjustment details whether by meter biasing or by software;
(iv) whether the Metering Equipment comprising a Metering System is
the subject of a dispensation agreed in accordance with paragraph
14 of Schedule 21; and
(v) the relevant Code(s) of Practice in respect of such
Metering System.
60.5.2 For the purposes of this Agreement, the Settlement System
Administrator shall refer only to the Register to identify
the Registrant, Operator, Equipment Owner, Host PES, Second
Tier Customer, ERS First Tier Customer, Non-Pooled
Generator, agent or Second Tier Agent referred to in Clause
60.5.1 relating to each Metering System and shall not be
obliged to acknowledge or be bound by any other agreement or
arrangement entered into by any Registrant, Operator,
Equipment Owner, Host PES, Second Tier Customer, ERS First
Tier Customer or Non-Pooled Generator.
60.5.3 The Settlement System Administrator shall keep the Register
up to date, noting changes to Registrants, Operators,
Equipment Owners, Host PESs, Second Tier Customers, ERS
First Tier Customers, Non-Pooled Generators, Metering
Equipment, dispensations and any Site disconnections as
notified to it pursuant to this Agreement and any changes to
any agent or Second Tier Agent. The Settlement System
Administrator shall also record in the Register any other
information regarding each Metering System as may be
reasonably required by the Executive Committee.
60.6 Communication links and central collector stations:
60.6.1 The Settlement System Administrator shall collect (or
procure the collection of) and estimate data relating to
quantities of Active and Reactive Power Imported or Exported
by any Party as may be required for the proper functioning
of Settlement in accordance with the provisions of this
Clause 60.6.
60.6.2 The Settlement System Administrator shall collect or procure
the collection of all such data referred to in Clause 60.6.1
as is available from Outstations either by means of remote
interrogation or by means of manual on-site interrogation.
60.6.3 (a) For the purposes of remote interrogation the
Settlement System Administrator shall enter into,
manage and monitor contracts or other arrangements to
provide for the maintenance of all communication links
by which information is passed from Outstations to the
Settlement System Administrator or its agent other
than exchange links which form part of Communications
Equipment.
(b) In the event of any fault or failure of any
communication link or any error or omission in such
data or all necessary data not being available from
Outstations the Settlement System Administrator shall
collect or procure the collection of such data by
manual on-site interrogation in accordance with the
relevant Agreed Procedures.
60.6.4 The Settlement System Administrator shall be responsible for the
installation and maintenance of central collector stations.
60.6.5 The Settlement System Administrator shall collect or procure
the collection of data for the purposes of the Settlement
System from Embedded Generators, Second Tier Suppliers,
Second Tier Customers, ERS First Tier Customers, Non-Pooled
Generators and inter-Distribution System connections in
accordance with the relevant Agreed Procedures.
60.6.6 The obligation to maintain communications links in respect
of Metering Equipment shall not apply where and with effect
from the date on which a person receiving a supply of or
generating electricity recorded by such Metering Equipment
ceases to be a Second Tier Customer or an ERS First Tier
Customer, a Non-Pooled Generator, a Generator or a PES.
60.7 Class rights:
60.7.1 The levels of accuracy for Metering Equipment at points of
connection of Second Tier Customers taking up to (and
including) 100kW of demand and at new points of connection
between two or more Distribution Systems were not set as at
1st April, 1993 and shall be as specified by the Executive
Committee subject to the consent of any relevant class of
Pool Members.
60.7.2 The levels of accuracy for Metering Equipment at points of
connection of Non-Pooled Generators shall be as specified by
the Executive Committee subject to the consent of any
relevant class of Pool Members.
60.7.3 Any change to the standards of accuracy of Metering
Equipment required for Second Tier Customers up to (and
including) 100kW before 31st March, 1998 shall be a change
to the class rights of Suppliers.
60.7.4 Any change to the standards of accuracy of Metering
Equipment required for Non-Pooled Generators shall be a
change to the class rights of Suppliers.
60.8 Sealing: Metering Equipment shall be as secure as is practicable
in all the circumstances and for this purpose:-
(a) all Metering Equipment shall comply with the relevant Agreed
Procedure; and
(b) the Executive Committee and the Settlement System
Administrator shall regularly review Agreed Procedures for
security arrangements in relation to Metering Equipment.
60.9 Discrepancies between meter advance and half hourly value totals:
The Parties acknowledge that, in transmitting metered data,
impulses representing quantities of electricity may be lost
between the relevant Meter and the Outstations giving rise to
inaccuracies in half hourly values notwithstanding that the
Metering Equipment is complying with the standards required by
this Agreement. In such circumstances any differences between
electricity flows recorded on Meters and the total of the half
hourly values recorded in the Settlement System will be noted at
the time that the Meter is inspected and read by the Settlement
System Administrator pursuant to paragraph 10 of Schedule 21 and
will be dealt with as provided in the relevant Agreed Procedure.
In any other circumstances where the Metering Equipment is not
complying with the standards required by this Agreement such
difference will be dealt with in accordance with paragraph 11 of
Schedule 21.
60.10 Meter Failure:
60.10.1 If at any time any Metering Equipment ceases to function or
is found to be outside the prescribed limits of accuracy
referred to in paragraph 7.3.1 of Schedule 21 for whatever
reason then, except in the circumstances referred to in
Clause 60.10.2:-
(a) in the case of Metering Equipment ceasing to function,
during the period from the date of such cessation; or
(b) in any other case, during the period from the time
when such inaccuracy first occurred or, if such time
is unknown, from the midnight preceding the day during
which the disputed reading occurred,
until, in either such case, the date of adjustment,
replacement, repair or renewal of such Metering Equipment
under paragraph 8.4 of Schedule 21, the meter readings shall
be deemed to be those calculated pursuant to the relevant
Agreed Procedure.
60.10.2 If at any time a voltage transformer fuse on a circuit
supplying a Meter fails with the result that the Metering
Equipment is outside the prescribed limits of accuracy
referred to in paragraph 7.3.1 of Schedule 21, the meter
readings from the time the failure is deemed to have
occurred until the voltage transformer circuit is again
restored to the Meter shall be deemed to be those calculated
pursuant to the relevant Agreed Procedure. A failure shall
be deemed to have occurred at the point in time provided for
in the relevant Agreed Procedure.
60.11 Disputes:
60.11.1 Any dispute regarding the accuracy of data recorded or
transmitted by Metering Equipment in respect of any
Settlement Day which is to be used for the purposes of
Settlement and where the purpose of the resolution of such
dispute is solely to affect payments arising from a
Settlement Run shall, if there is a relevant Agreed
Procedure, be dealt with in accordance with such Agreed
Procedure. If, having exhausted such Agreed Procedure any
Party is not satisfied with the outcome, such Party may
refer the matter to the Executive Committee. If there shall
be no relevant Agreed Procedure, such dispute shall be
referred to the Executive Committee. If, in either case, any
Party is not satisfied with the decision of the Executive
Committee, the matter may be referred by such Party to
arbitration in accordance with Clause 83.
60.11.2 Any dispute regarding Metering Equipment (other than a
dispute referred to in Clause 60.11.1) shall be referred to
the Executive Committee. If any Party is not satisfied with
the decision of the Executive Committee, the matter may be
referred by such Party to arbitration in accordance with
Clause 83.
60.11.3 It is hereby expressly acknowledged and agreed by the
Parties that the resolution of any dispute referred to in
Clause 60.11.1 or 60.11.2 shall in all cases be without
prejudice to the bringing or pursuing of any claim, by or
against, or the resolving of any issue between any one or
more of such Parties or any other Party arising out of the
same facts or circumstances, or facts or circumstances
incidental to the facts and circumstances giving rise to
such dispute, or upon the basis of which such dispute has
been resolved, in favour of, or against, a Meter Operator
Party or Meter Operator Parties.
60.11.4 Upon the request of any Party which is a party to a dispute
referred to in Clause 60.11.1 or 60.11.2 any relevant data
derived from Metering Equipment may be submitted by the
Settlement System Administrator to the body then having
jurisdiction in respect of the relevant dispute for the
purposes of resolving such dispute.
60.12 Information:
60.12.1 If a Pool Member or Party intends to make or provide or make
a significant alteration to a connection to the NGC
Transmission System or to a Distribution System which
connection is of 100MW or more in capacity and which may
require a new Metering System to be registered into the
Settlement System or a significant change to a Metering
System to be registered into the Settlement System, the Pool
Member or Party shall inform the Settlement System
Administrator as soon as possible and, in any event, not
later than three months prior to the date on which the Pool
Member or Party expects to make or provide the connection or
change. Such information will be regarded as confidential to
the Pool Member or Party providing it, and will be used by
the Settlement System Administrator only for the purpose of
preparing the Settlement System to take account of the
Metering System when it is registered.
60.12.2 Any information regarding or data acquired by the Settlement
System Administrator or its agent from Metering Equipment at
any Site which is a point of connection to a Distribution
System shall, and may, be passed by the Settlement System
Administrator or its agent to the operator of the relevant
Distribution System. The said operator of the relevant
Distribution System may only use the same for the purposes
of the operation of the Distribution System and the
calculation of charges for use of and connection to the
Distribution System.
60.13 Ownership of Metering Data, access, use and use of Communications
Equipment:
60.13.1 The Registrant of any Metering System shall own the data
acquired therefrom provided that (and each Registrant hereby
expressly agrees and acknowledges that) a Second Tier
Customer, ERS First Tier Customer or Non-Pooled Generator of
that Registrant in respect of which such data is generated
shall be entitled at all times without charge by the
Registrant to access, obtain and use such data and provided
further that:-
(i) such access, obtaining or use, or the method of such
access, obtaining or use, does not interfere with the operation of Settlement;
(ii) nothing in this Clause 60.13.1 shall require the
Registrant actively to provide such data to such
Second Tier Customer, such ERS First Tier Customer or
such Non-Pooled Generator or so to provide such data
free of charge; and
(iii) such access shall not be by using any communications
link used by the Settlement System Administrator for
the purposes of Clause 60.6 without the prior written
consent of the Settlement System Administrator.
60.13.2 The Settlement System Administrator and, for the purposes of
the performance by the Pool Auditor of its functions under
Part IX, the Pool Auditor are hereby authorised to use all
data which is owned by the Registrant pursuant to Clause
60.13.1 as may be permitted pursuant to this Agreement, and
the Settlement System Administrator or, as the case may be,
the Pool Auditor may only release such data to others to the
extent set out in this Agreement. It is hereby expressly
agreed that the Settlement System Administrator is permitted
to and shall against request and payment of a reasonable
charge therefor release to a Second Tier Customer, ERS First
Tier Customer or Non-Pooled Generator such data relating to
it as is referred to in Clause 60.13.1.
60.13.3 Communications Equipment need not be dedicated exclusively
to the provision of data to the Settlement System
Administrator for the purposes of Settlement provided that
any other use shall not interfere at any time with the
operation of Settlement and subject also to the relevant
provisions (if any) in the Tariff.
60.14 Ancillary Services: Until the RP Date, the Ancillary Services Provider
shall be entitled at its own cost and expense (which shall not be
charged or recharged to Pool Members) to prepare and submit to the
Suppliers in separate class meeting a works programme relating to the
method of recovery from Pool Members for the supply of Reactive Energy
by reference to the actual amount of Reactive Energy consumed by Pool
Members as measured by MVAr Metering Equipment at each relevant Site,
and, if approved by the Suppliers in separate class meeting, such works
programme shall be deemed to be an approved Works Programme for all
purposes of this Agreement and the provisions of Clauses 5.13 and 5.14
shall apply mutatis mutandis.
60.15 Appointment of Agents by Settlement System Administrator:
Notwithstanding the provisions of paragraph 7.2.2 of Schedule 4 the
Settlement System Administrator may appoint one or more agents to
perform any or all of its obligations under this Part XV and Schedule
21.
60.16 Appointment of Second Tier Agents by Settlement System Administrator with
effect from 31st March, 1994:
60.16.1 If, for the purposes of Clause 60.15, the Settlement System
Administrator appoints one or more agents for the purpose of
carrying out the obligations of the Settlement System
Administrator under or in connection with this Part XV or
Schedule 21 in relation to Metering Systems at or referable
to points of connection relating to Second Tier Customers,
ERS First Tier Customers or Non-Pooled Generators as the
Settlement System Administrator may direct, then the
provisions of Clauses 60.16.1 to 60.16.5 and Clause 60.17
shall, inter alia, apply to such arrangements.
60.16.2 The Settlement System Administrator shall, prior to
appointing any Second Tier Agent pursuant to Clause 60.16.1,
consult with the Executive Committee as to the
appropriateness of the appointment of such Second Tier Agent
and the terms upon which, if appropriate, such agent is to
be appointed and shall have due regard to the wishes
expressed pursuant to this Clause 60.16.2 by the Executive
Committee.
60.16.3 The Settlement System Administrator shall use reasonable
endeavours to procure that each Second Tier Agent shall
promptly and properly input data and other information as it
may receive pursuant to the terms of its appointment into
its Second Tier Computer Systems and shall review and
validate data and other information in accordance with the
relevant Agreed Procedures to establish the completeness
thereof and to identify any inconsistencies therein.
60.16.4 The Settlement System Administrator shall use reasonable
endeavours to procure that each Second Tier Agent shall keep
secure and confidential and not disclose, during the period
of its appointment or following its resignation or removal,
information, data and documentation obtained by the Second
Tier Agent in such capacity so as to cause a breach by the
Settlement System Administrator of its obligations pursuant
to Clause 68 or 69 of this Agreement.
60.16.5 The Settlement System Administrator shall use reasonable
endeavours to procure that upon the reasonable request of
the Settlement System Administrator and in any event upon
the removal or resignation of any Second Tier Agent, such
Second Tier Agent shall make over to the Settlement System
Administrator or its nominee all such records, manuals and
data and other information in the ownership or under the
control of the Second Tier Agent and relating to the
operation, and necessary for the proper functioning, of the
Second Tier Data Collection System.
60.17 Review:
(a) As soon as practicable after the third anniversary of the
date of this Agreement the Executive Committee, in
consultation with the Settlement System Administrator and
the Director, shall carry out a full review of the Second
Tier Data Collection System and, in consultation with the
Director, shall seek to agree with the Settlement System
Administrator (the agreement of the Settlement System
Administrator not to be unreasonably withheld or delayed)
the manner by which the costs of the Second Tier Data
Collection System should be recovered, in the Accounting
Periods commencing on or after 1st April, 1994.
(b) If, and to the extent, deemed necessary by the Executive
Committee in consultation with the Settlement System
Administrator and the Director, the Executive Committee
shall conduct a further review of the Second Tier Data
Collection System and, in consultation with the Director,
shall seek to agree with the Settlement System Administrator
(the agreement of the Settlement System Administrator not to
be unreasonably withheld or delayed), the manner by which
the Second Tier Data Collection System should operate, and
by which the costs of the same should be recovered, in the
Accounting Periods commencing on or after 1st April, 1996
such review to commence in due time to enable implementation
of any changes to the Second Tier Data Collection System on
that date.
(c) The Executive Committee, in consultation with the Settlement
System Administrator and the Director, shall carry out a
further full review of the Second Tier Data Collection
System and, in consultation with the Director, shall seek to
agree with the Settlement System Administrator (the
agreement of the Settlement System Administrator not to be
unreasonably withheld or delayed), the manner by which the
Second Tier Data Collection System should operate, and by
which the costs of the same should be recovered, in the
Accounting Periods commencing on or after 1st April, 1998
such review to commence in due time to enable implementation
of any changes to the Second Tier Data Collection System on
that date.
(d) In the event of an agreement within (a), (b) or, as the case
may be, (c) above, the provisions of this Agreement relating
to the Second Tier Data Collection System shall be amended
accordingly and, in the event of any failure to agree, the
matter shall be referred to arbitration pursuant to the
provisions of Clause 83. If such agreement has not been
reached or a determination has not been made or a settlement
not been reached under any such arbitration prior to:
(i) in the case of (a) above, the fourth anniversary of the date of
this Agreement;
(ii) in the case of (b) above (where applicable) by 1st
April, 1996; and
(iii) in the case of (c) above by 1st April, 1998,
the Settlement System Administrator shall, between such date
and the date on which agreement is reached or (if
applicable) a determination or settlement under such
arbitration is made or reached, recover the costs, expenses
and charges of the Second Tier Data Collection System in
accordance with Clause 34A and paragraph 3 of Part G of the
Appendix to Schedule 4.
60.18Software for FMS: The Settlement System Administrator shall develop and
implement appropriate computer software for the purposes of collecting and
aggregating data following the FMS Date.
60.19 Qualifying Unmetered Supplies:
60.19.1 Notwithstanding any of the other provisions of this
Agreement, including Clause 60 (other than the provisions of
this Clause 60.19) and Schedule 21, the provisions of this
Clause 60.19 and any Second Tier Unmetered Supplies
Procedures shall, to the extent they are supplemental to or
conflict with any other provisions of this Agreement, govern
the rights and obligations of the Parties (including each
Operator and each Meter Operator Party) in relation to
Qualifying Unmetered Supplies.
60.19.2 Neither this Clause 60.19 (save for the requirements set out
in this Clause 60.19.2 for the bringing into effect of this
Clause 60.19) nor the Second Tier Unmetered Supplies
Procedures nor any amendment, variation or replacement of
either of them may become effective:
(i) unless and until the Chief Executive shall have given
each Public Electricity Supplier, each Second Tier
Supplier, the Director (who may consult with such
persons as he considers appropriate) and the
Settlement System Administrator not less than 14 days'
notice that this Clause 60.19 (or any amendment,
variation or replacement thereof) and/or the Second
Tier Unmetered Supplies Procedures are to become
effective, stating the date on which the same are
proposed to become effective and having attached
thereto a copy of any proposed Second Tier Unmetered
Supplies Procedures; and
(ii) so long as none of the recipients of the notice
referred to in Clause 60.19.2(i) shall have given a
counternotice to the Chief Executive before the date
on which this Clause 60.19 and/or the Second Tier
Unmetered Supplies Procedures are to become effective
stating, on reasonable grounds, an objection to this
Clause 60.19 or the Second Tier Unmetered Supplies
Procedures becoming effective on the proposed date or
at all,
in the event that a counternotice shall have been given in
accordance with Clause 60.19.2(ii) the Chief Executive
shall, as soon as is reasonably practicable, notify the
persons referred to in Clause 60.19(i) of that fact.
60.19.3 Nothing in this Clause 60.19 shall permit the adoption, in
the Second Tier Unmetered Supplies Procedures or otherwise,
of standards of accuracy of data for Qualifying Unmetered
Supplies different from those which apply generally under
this Agreement other than during the transitional period
expiring on 31st March, 1995.
60.19.4 Except where the context otherwise requires, in this Clause 60.19:-
"Qualifying Unmetered Supplies" means unmetered street
lighting and related supplies of a type which as at the date
this Clause 60.19 becomes effective are permitted to be made
by a Second Tier Supplier;
"Second Tier Unmetered Supplies Procedures" means the
procedures in respect of Qualifying Unmetered Supplies in
the form agreed between all Public Electricity Suppliers and
the Director (who may consult with such persons as he
considers appropriate) as the same may be amended, varied or
replaced from time to time with the agreement of such
persons.
60.19.5 The Executive Committee may determine that Agreed Procedures
are necessary to implement this Clause 60.19 or the Second
Tier Unmetered Supplies Procedures and in such case nothing
in this Clause 60.19 or the Second Tier Unmetered Supplies
Procedures shall prejudice such determination or the
adoption or implementation of such Agreed Procedures,
provided that any such Agreed Procedure shall not include
matters which would occur on the Second Tier Customer's or
ERS First Tier Customer's side of the outstation.
60.19.6 The Parties accept that modifications to the Settlement
System Administrator's rights and obligations under this
Agreement may be required under the Second Tier Unmetered
Supplies Procedures or otherwise before this Clause 60.19
can become effective.
60.20 Obligation on Suppliers to install half-hourly metering and
register above 100 kW customers: Each Supplier shall use all
reasonable endeavours to ensure that half-hourly metering
and the necessary communications links are installed in
respect of all Embedded Non-Franchise Sites in respect of
which it is Supplier by no later than 1st October, 1997 and
that all Metering Systems associated with such Embedded
Non-Franchise Sites are registered in ERS by no later than
31st December, 1997, in accordance with the approach
specified by the Executive Committee Provided that there
shall be no obligation to install metering and
communications links in respect of sites relating to
Qualifying Unmetered Supplies.
PART XVI
POOL CIVIL EMERGENCIES
61.1 DEFINITIONS
Definitions: In this Part XVI:-
"Civil Emergency Pool Credit Facility" shall mean a credit facility to
be arranged by and for the use of Suppliers upon terms and conditions
to be set out in Schedule 11 to this Agreement;
"PoolCivil Emergency" shall have the meaning ascribed to it in Clause
61.2.1;
"Pool Civil Emergency Event" shall mean an event or series of events
which satisfies the conditions set out in Clause 61.3.2;
"Pool Civil Emergency Period" shall mean a period initiated by the
Executive Committee after the occurrence of a Pool Civil Emergency
Event which shall commence, and terminate, in accordance with this
Part;
"PoolRules Civil Emergency Condition" shall mean, in respect of any
Schedule Day, that both:-
(i) UMT _ 0.1 (as determined in accordance with paragraph 32.1(a) of
Schedule 9); and
(ii) RAPT _ 3 * CAPT (as determined in accordance with paragraph
32.1(b) of Schedule 9);
"Pool Rules Civil Emergency Period" shall mean a period which
commences, and terminates, and in which section 32.3 of Schedule 9 is
in force, in accordance with this Part; and
"Relevant Time" in relation to any event, means the time which falls
two hours prior to the first time at which an Availability Declaration
must be submitted pursuant to section 6.1 of Schedule 9 on the first
Settlement Day which commences at least 24 hours after the occurrence
of such event.
61.2 APPLICATION AND STATEMENT OF INTENT
61.2.1 General Statement of Intended Application: It is intended
that this Part shall apply where there is in existence an
event, or series of events which does or do not generally
occur as part of normal market operating conditions and
which affect(s) the operation of the market for the
generation, transmission and/or supply of electricity in
England and Wales and which, as a result, cause(s) or is or
are likely to cause materially changed pool prices to arise
and continue (a "Pool Civil Emergency"). The following
conditions set out in this Part are intended to reflect the
circumstances in which it is envisaged that it would likely
be the case that such event or events shall have so
occurred.
61.2.2 Interrelationship with Act: The Act and the Energy Act 1976
contain legislation conferring wide powers upon the
Secretary of State to regulate the generation, transmission
and/or supply of electricity in an emergency. It is intended
that the provisions of this Part shall coexist in
application with such legislation.
61.3 CONDITIONS FOR EXISTENCE OF A POOL CIVIL EMERGENCY
61.3.1 Determination of a Pool Civil Emergency: A Pool Civil
Emergency shall exist upon any resolution to that effect
passed by the Executive Committee in accordance with the
provisions of this Part whereafter, subject to the following
provisions of this Part, a Pool Civil Emergency Period shall
commence.
61.3.2 Conditions: The Executive Committee shall resolve that a
Pool Civil Emergency exists only if it has formed the
opinion that a Pool Civil Emergency Event has occurred. A
Pool Civil Emergency Event shall occur whenever:-
(a) materially changed pool prices exist or are likely to
exist and, in either case, are likely to continue; and
(b) such materially changed pool prices are the direct
result of any one or more of the following:-
(i) a major failure affecting the operation of the NGC Transmission
System;
(ii) a major operational failure of one or more Distribution Systems;
or
(iii)an inability of any Generator to generate or the loss of
generating plant availability of any Generator; and
(c) the event within (i), (ii), or as the case may be, (iii) of (b)
above has itself resulted from any one or more of the following:-
(i) any action taken by or on behalf of Her
Majesty's Government pursuant to and in
accordance with the emergency provisions set
out in sections 1 to 4 of the Energy Act 1976
or section 96 of the Act;
(ii) any act, order, regulation, direction or
directive, legislation or restraint of
Parliament or any governmental authority, or
agent or instrument of the foregoing;
(iii) any act of public enemy or terrorist, act of
war or hostilities (whether declared or
undeclared), threat of war or hostilities,
blockade, revolution, riot, insurrection,
civil commotion or unrest or demonstration;
(iv) any strike, lock-out or other industrial
action;
(v) any act of sabotage or vandalism;
(vi) lightning, earthquake, hurricane, storm,
fire, flood, drought, accumulation of snow or
ice, or any other extreme weather or
environmental condition; or
(vii) any other event provided that in such a case
any resolution of the Executive Committee
determining that a Pool Civil Emergency
exists must be carried by a majority of not
less than 75 per cent. of the Total Weighted
Votes of all Committee Members entitled to
vote at a meeting of the Executive Committee
whether or not present.
61.4 CONDITIONS FOR EXISTENCE OF A POOL RULES CIVIL EMERGENCY PERIOD
Pool Rules Civil Emergency Period: A Pool Rules Civil Emergency Period
shall, subject to the following provisions of this Part, commence as
part of a Pool Civil Emergency Period whenever (i) a Pool Civil
Emergency Period is current and (ii) the Pool Rules Civil Emergency
Condition is satisfied and (iii) Section 28 of Schedule 9 hereof is not
in effect.
61.5 PROCEDURE FOR INITIATION OF A POOL CIVIL EMERGENCY PERIOD AND
COMMENCEMENT OF A POOL RULES CIVIL EMERGENCY PERIOD
61.5.1 Right to requisition:
(a) Each Pool Member, the Settlement System Administrator,
the Grid Operator, the Director and the Secretary of
State shall have the several right to have convened a
special meeting of the Executive Committee for it to
consider whether a Pool Civil Emergency exists (and
accordingly whether a Pool Civil Emergency Period is
to commence).
(b) To requisition a meeting of the Executive Committee
the relevant Party, the Director or, as the case may
be, the Secretary of State shall notify in writing:-
(i) in the case of a Pool Member, its appointed Committee
Member, the Pool Chairman or the Chief Executive; and
(ii) in the case of the Settlement System Administrator, the
Grid Operator, the Director or the Secretary of State,
the Pool Chairman or the Chief Executive,
that it wishes such a meeting to be convened giving as
full an explanation as it is able of the event or
events which it believes constitute(s) the relevant
Pool Civil Emergency Event.
(c) Upon receipt of a written requisition in accordance
with (b), the relevant Committee Member, the Pool
Chairman or, as the case may be, the Chief Executive
shall convene a special meeting of the Executive
Committee in accordance with Clause 18 to take place
within 48 hours after receipt of such requisition, and
the provisions relating to notice periods in Clause 18
shall be varied for the purposes of this Part
accordingly.
61.5.2 Initiation by the Executive Committee:
Pool Civil Emergency Period: If the Executive Committee
shall resolve that a Pool Civil Emergency exists then,
subject to the right of veto in Clause 61.5.7 being
exercised, a Pool Civil Emergency Period shall commence upon
the expiry of the time limit for the exercise of such veto
and shall continue until terminated in accordance with
Clause 61.7.
61.5.3 Pool Rules Civil Emergency Period:
(a) Commencement: A Pool Rules Civil Emergency Period
shall, subject to the right of veto in (b) below and
in Clause 61.5.7 being exercised, commence in
accordance with Clause 61.4 at the expiry of the
period for the exercise of the Executive Committee's
veto in (b) below and shall continue until terminated
in accordance with the provisions of Clause 61.7.
(b) Executive Committee's Right of Veto: The Executive
Committee shall have the right to veto the
commencement of a Pool Rules Civil Emergency Period by
the passing of a resolution to that effect carried by
a majority of not less than 65 per cent. of the Total
Weighted Votes of all Committee Members entitled to
vote at such meeting whether or not present, provided
that the Executive Committee shall only be able to
exercise such right of veto prior to the Relevant Time
relative to the time at which the Secretary receives a
notification given by the Settlement System
Administrator pursuant to Clause 61.5.4.
(c) Effect of Veto: Where the Executive Committee
exercises its right of veto in accordance with (b)
above, the relevant Pool Rules Civil Emergency Period
shall not commence.
61.5.4 Settlement System Administrator's Notification: The
Settlement System Administrator shall notify forthwith by
telephone (and confirm in writing as soon as is practicable
thereafter to) the Chief Executive, Pool Chairman,
Secretary, Director and Secretary of State whenever it
becomes aware that the Pool Rules Civil Emergency Condition
is satisfied.
61.5.5 Reasons: The Executive Committee shall give reasons for the
passing of any resolution pursuant to this Clause or the
exercising of any right of veto conferred on it by this
Clause, to be notified to the relevant parties by the
Secretary in accordance with Clause 61.5.6.
61.5.6 Notification (1): The Secretary shall notify in accordance with
Clause 75 all Parties, the Director and the Secretary of State:-
(a) of the result of any vote taken on a resolution of the
Executive Committee pursuant to this Part, giving
reasons in outline explaining such result, immediately
following the conclusion of the meeting at which the
vote was taken; such notification may be given by
telephone or by facsimile transmission. An outline
statement of reasons shall be circulated by the
Secretary to the same persons as soon as is reasonably
practicable thereafter; and
(b) where there has been no exercise within the time limit
provided therefor of a right of veto pursuant to
either Clause 61.5.3 by the Executive Committee or
Clause 61.5.7 by the Director or the Secretary of
State, notify all Parties, the Director and the
Secretary of State immediately of the commencement of
a Pool Rules Civil Emergency Period.
61.5.7 Right of Veto:
(a) Right of Veto: The Director and the Secretary of State
shall each have a several right to veto the
commencement of any Pool Civil Emergency Period or, as
the case may be, Pool Rules Civil Emergency Period by
giving written notice of an exercise of such right of
veto addressed to the Executive Committee, the Pool
Chairman and the Chief Executive within the time
periods specified below. To be validly given, such
notice shall specify in sufficient detail (in the case
of a Pool Civil Emergency Period) the relevant
resolution of the Executive Committee or (in the case
of a Pool Rules Civil Emergency Period) the relevant
notification of the Settlement System Administrator,
in respect of which the right of veto is being
exercised.
(b) Effect of Veto: Where the Director or the Secretary of
State exercises his veto in accordance with this
Clause 61.5.7, the relevant Pool Civil Emergency
Period or, as the case may be, Pool Rules Civil
Emergency Period shall not commence.
(c) Time Limits: Any veto given by, or on behalf of, either
of the Director or Secretary of State must be received
by or on behalf of the Executive Committee:-
(i) in respect of a resolution initiating a Pool
Civil Emergency Period, before the expiry of
a period of 48 hours commencing upon the
receipt by the Director or, as appropriate,
the Secretary of State, of the notification
of the result of the vote upon the relevant
resolution; or
(ii) in the case of a veto in respect of the
commencement of a Pool Rules Civil Emergency
Period, before the expiry of the time for the
exercise of the Executive Committee's right
of veto pursuant to Clause 61.5.3.
For the avoidance of doubt, such veto may be given at
any time before the commencement of such period.
(d) Reasons: The Director shall upon exercising a right of
veto conferred by this Clause give reasons to the
Executive Committee supporting the exercise of that
right and the Parties would expect the Secretary of
State also to give reasons upon any exercise of his
right of veto conferred by this Clause.
(e) Notification (2): Upon receipt by or on behalf of the
Executive Committee of a notice of exercise of veto
pursuant to this Clause, the Secretary, on behalf of
the Executive Committee, shall as soon as is possible
thereafter give notice in accordance with Clause 75 of
the exercise of such veto.
61.6 EFFECT OF POOL AND POOL RULES CIVIL EMERGENCY PERIODS
61.6.1 Effect of a Pool Civil Emergency Period:
(a) Upon a determination that a Pool Civil Emergency exists
in accordance with Clause 61.2.1 above:-
(i) Suppliers shall be entitled during the Pool Civil
Emergency Period, for the purposes of payments to be
made by them pursuant to this Agreement during such
period, to utilise the Civil Emergency Pool Credit
Facility; and
(ii) Sections 32.1 and 32.2 of the Pool Rules shall enter
into force and effect.
(b) The Pool Members expressly acknowledge the fact that
during the currency of any Pool Civil Emergency Period
Suppliers shall be entitled to operate credit
facilities in accordance with and subject to any
conditions of their respective Licences (where
relevant).
61.6.2 Effect of a Pool Rules Civil Emergency Period: Upon the
commencement of a Pool Rules Civil Emergency Period in
accordance with Clause 61.5.3(a), the provisions of Section
32.3 of Schedule 9 shall enter into full force and effect
and shall continue in full force and effect until such time
as that Pool Rules Civil Emergency Period is terminated in
accordance with Clause 61.7.
61.7 TERMINATION OF A POOL CIVIL EMERGENCY PERIOD
61.7.1 Director's determination of end of Pool Civil Emergency
Period: A Pool Civil Emergency Period and, where applicable,
any concurrent Pool Rules Civil Emergency Period, shall
terminate upon any determination of the Director to that
effect.
61.7.2 Consultation: The Director shall only determine that a Pool
Civil Emergency Period and, where applicable, any concurrent
Pool Rules Civil Emergency Period shall terminate after
having fully consulted and taken into consideration the
views of all relevant Parties and after having obtained the
approval of the Secretary of State.
61.7.3 Notification (3): The Director shall notify in writing the
Secretary, the Pool Chairman and the Chief Executive as soon
as is possible of any determination made pursuant to this
Clause 61.7 giving reasons for any determination so made and
the Secretary shall immediately notify all Parties of such
determination upon receipt.
61.7.4 Confirmation: The Director shall confirm to the Executive
Committee upon any determination pursuant to this Clause
61.7 that a Pool Civil Emergency Period shall terminate,
that he has taken full account of all relevant matters, the
views of such relevant Parties and has obtained the approval
of the Secretary of State.
61.7.5 Termination of a Pool Rules Civil Emergency Period within a
continuing Pool Civil Emergency Period:
(a) The Executive Committee may, by resolution carried by
a majority of not less than 65 per cent. of the Total
Weighted Votes of all Committee Members whether or not
present, terminate any current Pool Rules Civil
Emergency Period whenever it considers, in its
absolute discretion, that the continued application of
the modified Pool Rules as set out in Section 32.3 of
Schedule 9 to be, in the circumstances, no longer
appropriate.
(b) The relevant Pool Rules Civil Emergency Period shall
terminate following the passing of that resolution at
the Relevant Time relative to the time at which that
resolution is passed.
(c) The Secretary, on behalf of the Executive Committee,
shall as soon as is possible after the passing of such
resolution give notice to all Parties, the Director
and the Secretary of State in accordance with Clause
75 that the relevant Pool Rules Civil Emergency Period
is to so terminate.
(d) Whenever Section 28 of Schedule 9 enters into force
and effect, in accordance with this Agreement, any
Pool Rules Civil Emergency Period then current shall
terminate at the time that such section so enters into
force and effect.
61.7.6 Effect of Termination:
(a) Pool Civil Emergency Period: Upon the termination of
any Pool Civil Emergency Period the Civil Emergency
Pool Credit Facility shall forthwith cease to be
utilised and, where there is a concurrent Pool Rules
Civil Emergency Period, the provisions of Section 32
of Schedule 9, shall forthwith cease to be effective.
(b) Pool Rules Civil Emergency Period within a current and
continuing Pool Civil Emergency Period: Upon the
termination of any Pool Rules Civil Emergency Period
within a current and continuing Pool Civil Emergency
Period the provisions of Section 32.3 of Schedule 9
shall forthwith cease to be effective.
61.8 REFERENCE TO DIRECTOR
61.8.1 Reference to the Director: If any dispute shall arise
between the Executive Committee and any Pool Member:-
(a) as to whether the Executive Committee ought to have
concluded that the conditions for the initiation of a
Pool Civil Emergency Period in accordance with Clause
61.3.2 were satisfied either as a matter of fact or
such that there was a Pool Civil Emergency within the
spirit of the statement of intent set out at Clause
61.2.1; or
(b) as to whether the Executive Committee ought or ought
not to have exercised its right of veto pursuant to
Clause 61.5.3(b) in respect of the commencement of a
Pool Rules Civil Emergency Period; or
(c) as to whether a Pool Rules Civil Emergency Period
within a current and continuing Pool Civil Emergency
Period ought or ought not to have been terminated by
the Executive Committee in accordance with Clause
61.7.5 above,
the dispute may be referred by notice of the dispute given
in writing by the relevant Pool Member to the Director and
as if such Pool Member were exercising a Dissentient Pool
Member's right of appeal pursuant to Clause 13.5. The
Director shall determine the matter within 60 days of
receipt of such referral. Notice of any such referral shall
be given to the Executive Committee at the same time that
the dispute is so referred.
61.8.2 Content and Effect of Determination:
(a) If the Director shall determine in accordance with
Clause 61.8.1 that a Pool Civil Emergency Period or
Pool Rules Civil Emergency Period should commence, or
as the case may be, resume, then:-
(i) in the case of a Pool Civil Emergency Period,
upon such determination having been notified
to the Secretary in accordance with Clause
61.8.3, a Pool Civil Emergency Period shall
commence or, as the case may be, resume; and
(ii) in the case of a Pool Rules Civil Emergency
Period, such period shall commence at the
Relevant Time relative to the time at which
such determination has been notified to the
Secretary in accordance with Clause 61.8.3;
or
(b) If the Director shall determine in accordance with
Clause 61.8.1 that a continuing Pool Civil Emergency
Period or Pool Rules Civil Emergency Period should
terminate, then:-
(i) in the case of a Pool Civil Emergency Period,
upon such determination having been notified
to the Secretary in accordance with Clause
61.8.3, the then current Pool Civil Emergency
Period shall terminate; and
(ii) in the case of a Pool Rules Civil Emergency
Period, the then current such period shall
terminate at the Relevant Time relative to
the time at which such determination has been
notified to the Secretary in accordance with
Clause 61.8.3.
61.8.3 Notification (4): The Director shall notify in writing the
Secretary, the Pool Chairman and the Chief Executive as soon
as is possible of any determination made pursuant to this
Clause 61.8 giving reasons for any determination so made and
the Secretary shall immediately notify all Parties of such
determination upon receipt.
61.9 MODIFICATION OF PROCEDURES
Modification of Procedures: Neither the procedures for a poll set out
in Clause 22 nor the provisions of Clause 13.4 shall apply to any
resolution of the Executive Committee referred to in this Part XVI, and
there shall be no right of referral of the matter the subject of such
resolution to the Pool Members in general meeting.
PART XVII
TRADING SITE
62. TRADING SITE
Trading Site: The provisions of Schedule 17 shall have effect.
PART XVIII
THE POOL FUNDS ADMINISTRATOR, BILLING AND SETTLEMENT
63. THE POOL FUNDS ADMINISTRATOR
63.1 Responsibilities: The Pool Funds Administrator shall have the following
duties, responsibilities and obligations, namely:-
63.1.1 to comply with all the obligations set out in this Agreement
and the Agreed Procedures in respect of the establishment,
maintenance and operation of the Funds Transfer System and
to carry out its obligations under the Funds Transfer
Agreement;
63.1.2 to keep under review and to make recommendations to the
Executive Committee on its own initiative or whenever
requested by the Executive Committee concerning:-
(a) any change to the Funds Transfer System (or any part or
aspect thereof);
(b) the appointment of a new Pool Banker;
(c) any change to Schedule 11 or 15; and
(d) any change to the Funds Transfer Agreement,
which the Pool Funds Administrator may consider desirable.
In making such recommendations, the Pool Funds Administrator
shall have regard to, and shall provide details of, the cost
of implementing such changes (which cost would be charged or
recharged to Pool Members) and shall recommend whether, in
light of those costs, certain parties or categories of party
to the Agreement should be exempted from such changes or
whether special provisions for such parties or categories of
party should be adopted;
63.1.3 (a) to maintain such records, data and other
information as the Pool Auditor may, after
consultation with the Executive Committee, from time
to time by notice in writing and in reasonable detail
to the Pool Funds Administrator, require for the
purposes of Part IX, or as may otherwise be reasonably
necessary to enable the Pool Funds Administrator to
comply promptly and fully with all its obligations
under this Agreement, the Agreed Procedures or the
Funds Transfer Agreement, in either such case in such
form as the Pool Auditor may from time to time by
notice to the Pool Funds Administrator require or (in
the absence of such notification) in such form as a
reasonably prudent operator of the Funds Transfer
System would adopt; and
(b) to maintain such records, data and other information
as H.M. Customs and Excise may from time to time
require of the Pool Funds Administrator;
63.1.4 to retain in machine readable form or hard copy form for a
period of not less than eight years (or such longer period
as any applicable law may require) and in any event in hard
copy form (which for these purposes shall include
microfiche) for a period of not less than one year copies of
the records, data and other information received and
processed by the Pool Funds Administrator in connection with
its performance of the Services including:-
(a) (to the extent relevant for the performance of the
Services) Settlement Runs and Settlement Re-runs;
(b) Advice Notes and Confirmation Notices;
(c) bank statements in respect of the Pool Accounts;
(d) Pool Ledger Accounts;
(e) Payments Calendars;
(f) a record of all Default Interest Rates and Reserve
Interest Rates calculated from time to time (including
the period to which each interest rate relates);
(g) details of Security Cover supplied and to be supplied
by each Providing Member (as defined in Schedule 11) or
the Grid Operator, as the case may be; and
(h) correspondence between the Pool Funds Administrator,
on the one hand, and the Executive Committee, the Pool
Chairman, the Chief Executive, any Pool Member, the
Pool Banker, any Collection Bank, the Settlement
System Administrator, the Ancillary Services Provider,
the Director, the Pool Auditor, the Grid Operator and
any other relevant bank or institution, on the other
hand;
63.1.5 to provide to the Executive Committee and the Chief
Executive upon request records, data and other information
concerning the Funds Transfer System (and any part thereof)
(unless disclosure would breach any duty of confidentiality
imposed on the Pool Funds Administrator) and which the Pool
Funds Administrator is required to retain under paragraph
63.1.3 or 63.1.4 (and each of the Parties agrees to the
release of all such records, data and other information in
the circumstances and manner described in this paragraph
63.1.5);
63.1.6 to provide to the Pool Auditor upon request records, data
and other information concerning the Funds Transfer System
(and any part thereof) and which the Pool Funds
Administrator is required to maintain and retain under
paragraph 63.1.3 or 63.1.4 (and each of the Parties agrees
to the release of all such records, data and other
information in the circumstances and manner described in
this paragraph 63.1.6);
63.1.7 subject to the provisions of Part XX, to provide a certified copy of
such records, data and other information concerning the Funds Transfer
System (and any part thereof) and amounts payable by or to any Pool
Member, the Ancillary Services Provider or the Grid Operator as the
relevant Pool Member, the Ancillary Services Provider or (as the case
may be) the Grid Operator may reasonably request for the purpose of
establishing the amounts which are owed to or by such Pool Member, the
Ancillary Services Provider or the Grid Operator in accordance with
this Agreement, and in any event such information as any Pool Member,
the Ancillary Services Provider or the Grid Operator may request from
the Pool Funds Administrator in order to establish or prove a claim to
any amounts due or claimed to be due. The Pool Funds Administrator
shall forthwith upon such request provide such information upon
delivery (if so required by the Pool Funds Administrator) of a
certificate from the counsel of such Pool Member, the Ancillary
Services Provider or the Grid Operator certifying that, in such
counsel's opinion, such information is required for such purpose;
63.1.8 to issue Advice Notes and Confirmation Notices within the times
and containing the details required by Schedule 11;
63.1.9 upon request, promptly to supply on its own behalf and on
behalf of Pool Members, the Ancillary Services Provider and
the Grid Operator (with a copy to the Pool Member concerned,
the Ancillary Services Provider and the Grid Operator) any
information (including copies of documents) to H.M. Customs
and Excise, and to co-operate in any investigation by H.M.
Customs and Excise or H.M. Inspector of Taxes relating to
the Funds Transfer System (or any part or aspect thereof);
63.1.10 in respect of each calendar quarter, to issue to all Pool
Members, the Executive Committee, the Chief Executive, the
Settlement System Administrator, the Ancillary Services
Provider and the Grid Operator no later than the fifth
Business Day after each calendar quarter a statement
enabling the identification of who may constitute Majority
Default Calling Creditors during that calendar quarter (and
the Parties hereby agree to such disclosure being made);
63.1.11 except in respect of moneys received on account of the PFA
Operating Costs, the PFA Handling Charge, the Annual Fee or
Bank Charges in accordance with the accounting procedure set
out in Schedule 15 or the consideration received pursuant to
sub-section 5.1 or 5.2 of that Schedule, to pay all moneys
received by it from a Pool Member, the Ancillary Services
Provider or the Grid Operator in accordance with Schedule 11
into a Pool Account to be held in trust in accordance with
the provisions of Schedule 11; and
63.1.12 to comply with all its other obligations under this Agreement
(including Schedules 11 and 15) and the Agreed Procedures,
and expressions defined in Schedules 11 and 15 shall have the same
respective meanings when used in this Clause 63.1.
63.2 Standard of care: In the exercise of its duties and responsibilities
under this Agreement and the Agreed Procedures the Pool Funds
Administrator shall exercise that degree of care, diligence, skill and
judgment which would ordinarily be expected of a reasonably prudent
operator of the Funds Transfer System taking into account the
circumstances actually known to the Pool Funds Administrator, its
officers and employees at the relevant time or which ought to have
been known to it or them had it or they made such enquiries as were
reasonable in the circumstances. In particular, but without prejudice
to the generality of the foregoing, in the absence of directions and
instructions given to it by the Executive Committee under this
Agreement and having due regard to the resources available to it, the
Pool Funds Administrator shall at all times conduct itself in a manner
calculated to achieve the principal objects and purpose of this
Agreement set out in Clauses 4.1.2 and 4.1.3.
63.3 UK value added tax indemnity:
63.3.1 Indemnity (1): Without prejudice to paragraph 63.3.2 all Pool
Members and the Grid Operator shall jointly and severally indemnify
and keep indemnified the Pool Funds Administrator, its officers,
employees and agents (but so that, as between Pool Members and the
Grid Operator, their liability shall be apportioned so that the Grid
Operator is liable for 5 per cent. of the indemnified amount and the
Pool Members are liable for the balance of such indemnified amount in
proportion to their respective Contributory Shares at the time of
receipt of the request for indemnification calculated on the basis
that the points allocated to the Pool Member in default are
disregarded) against any liability which the Pool Funds Administrator
may incur as a result of the failure of any Pool Member, the Grid
Operator or the Ancillary Services Provider (as the case may be)
properly to account to H.M. Customs & Excise for all amounts of United
Kingdom Value Added Tax payable or receivable by it in respect of any
supplies of electricity, Ancillary Services or Transport Uplift.
63.3.2 Indemnity (2): If any Pool Member, the Ancillary Services
Provider or the Grid Operator shall fail properly to account
for any amount of United Kingdom Value Added Tax payable or
receivable by it, that person shall indemnify and keep
indemnified each non-defaulting Pool Member and (if it is
not in default) the Grid Operator (on an after tax basis,
but taking account of any tax relief available to the
relevant Pool Member or the Grid Operator, as the case may
be) against any liability which such non-defaulting Pool
Member and (if it is not in default) the Grid Operator shall
incur pursuant to paragraph 63.3.1.
63.4 Schedule 15:
63.4.1 Subject to the rights of each of the Parties under this
Agreement, all Parties hereby agree promptly to execute and
deliver all agreements and other documentation necessary to
give effect to any act, matter or thing done by the
Executive Committee in accordance with Schedule 15
(including the removal of the incumbent Pool Funds
Administrator and the appointment of a successor in
accordance with the terms thereof).
63.4.2 Schedule 15 provides that certain matters may be referred by
the Executive Committee to arbitration pursuant to Clause
83. In making any such reference or in alleging that any
such reference is being made pursuant to Clause 83 the
Executive Committee shall act (and is hereby irrevocably
authorised by each of the Pool Members to act) as the sole
and exclusive representative of all the Pool Members and the
Pool Funds Administrator hereby agrees that the Executive
Committee shall have the authority so to act.
64. PROCEDURES MANUAL
64.1 Preparation: Within 28 days after the Effective Date (or such longer
period as the Executive Committee may approve) the Pool Funds
Administrator shall prepare, or cause to be prepared, a Procedures
Manual which it shall submit to the Executive Committee for its review.
The Executive Committee shall give its comments on the Procedures
Manual to the Pool Funds Administrator within 28 days after receipt
thereof and the Pool Funds Administrator shall revise, or cause to be
revised, the Procedures Manual to the satisfaction of the Executive
Committee within 21 days after receipt of such comments (or such longer
period as the Executive Committee may approve). Promptly thereafter the
Pool Funds Administrator shall provide the Executive Committee with
sufficient copies of the revised Procedures Manual for distribution by
the Executive Committee to all Parties, the Pool Auditor, the Pool
Banker and the Director.
64.2 Amendments: Where from time to time any amendments to the Procedures
Manual are necessary to reflect changes in the systems and/or
procedures associated with the Funds Transfer System, the procedure set
out in Clause 64.1 shall apply mutatis mutandis.
64.3 Costs: The costs of producing, revising and amending the Procedures
Manual shall be borne by the Pool Funds Administrator and recovered by
it in accordance with the provisions of Schedule 11 as part of its
charges.
65. BILLING AND SETTLEMENT
The provisions of Schedule 11 shall have effect.
PART XIX
DEFAULT, TERM AND TERMINATION
66. DEFAULT
66.1 Default (1): At any time after the occurrence of any of the events
referred to in Clause 66.3.1, 66.3.2 or 66.3.3 and so long as such
event continues unremedied or unwaived by Majority Default Calling
Creditors:-
66.1.1 Majority Default Calling Creditors may, upon reaching a bona
fide conclusion that the reason for the failure by the
Defaulting Pool Member under Clause 66.3.1, 66.3.2 or 66.3.3
is other than administrative or banking error (having taken
into account the representations, if any, of the Defaulting
Pool Member made within 24 hours after request therefor is
made to the Defaulting Pool Member on behalf of the Majority
Default Calling Creditors, which request Majority Default
Calling Creditors shall be obliged to make), by notice to
the Defaulting Pool Member (copied to the Executive
Committee and the Director) declare such event an Event of
Default;
66.1.2 at the same time as Majority Default Calling Creditors
declare such an Event of Default or at any time thereafter,
Majority Default Calling Creditors may by notice to the
Executive Committee (copied to the Defaulting Pool Member
and the Director) require the Executive Committee to suspend
(which the Executive Committee shall forthwith do) all
voting rights of the Defaulting Pool Member under this
Agreement for a specified period (being not more than 90
days) and, upon the Executive Committee giving notice to
such effect to the Defaulting Pool Member (copied to the
Director), such voting rights (but not any other rights or
any liabilities or obligations of the Defaulting Pool
Member) shall be suspended for such period; and
66.1.3 where:-
(a) the Defaulting Pool Member is a Public Electricity Supplier,
no earlier than 28 days after the date of the notice
referred to in Clause 66.1.1; and
(b) in any other case, at the same time as Majority Default
Calling Creditors declare such an Event of Default or at any
time thereafter,
Majority Default Calling Creditors may by notice to the
Defaulting Pool Member (copied to the Executive Committee,
the Settlement System Administrator, the Grid Operator, the
Pool Funds Administrator, the Ancillary Services Provider
and the Director) require the Defaulting Pool Member to
cease to be a Party with effect from the date of its
De-energisation and until such date all voting rights of the
Defaulting Pool Member under this Agreement (but not any
other rights or any liabilities or obligations of the
Defaulting Pool Member) shall be automatically suspended.
For the avoidance of doubt, Majority Default Calling
Creditors shall be at liberty to give notice under Clause
66.1.2 and, upon expiry of the specified period referred to
therein and subject as provided in the foregoing provisions
of this Clause 66.1, to give notice under Clause 66.1.3.
66.2 Default (2): At any time after the occurrence of any of the events
referred to in Clause 66.3 (other than (a) any of the events referred
to in Clause 66.3.1, 66.3.2 and 66.3.3 and (b) in the case where the
Defaulting Pool Member is unable to pay its debts as referred to in
Clause 66.3.6(a), unless any of the other events referred to in Clause
66.3 has occurred and is continuing) and so long as such event
continues unremedied or unwaived by the Pool Members in general meeting
the Executive Committee may (and shall if so directed by the Pool
Members in general meeting):-
66.2.1 by notice to the Defaulting Pool Member (copied to the
Director) declare such event an Event of Default and suspend
all voting rights of the Defaulting Pool Member under this
Agreement for a specified period (being not more than 90
days) whereupon such voting rights (but not any other rights
or any liabilities or obligations of the Defaulting Pool
Member) shall be suspended for such period; and
66.2.2 upon the expiry of such period by notice to the Defaulting
Pool Member (copied to the Settlement System Administrator,
the Grid Operator, the Pool Funds Administrator, the
Ancillary Services Provider and the Director) require the
Defaulting Pool Member to cease to be a party to this
Agreement with effect from the date of its De-energisation
and until such date all voting rights of the Defaulting Pool
Member under this Agreement (but not any other rights or any
liabilities or obligations of the Defaulting Pool Member)
shall be automatically suspended.
66.3 Events of Default: The events referred to in the foregoing provisions
of this Clause 66 are:-
66.3.1 the Pool Member in question (the "Defaulting Pool Member")
shall fail to provide or maintain or renew in accordance
with Schedule 11 the requisite amount of Security Cover
determined pursuant to that Schedule; or
66.3.2 the Defaulting Pool Member shall fail to pay in the manner
provided in this Agreement any sum payable by it to any Pool
Creditor within three Business Days after its due date; or
66.3.3 the Defaulting Pool Member shall fail to pay in the manner
provided in this Agreement any sum payable by it hereunder
to the Settlement System Administrator or the Pool Funds
Administrator within 28 days after the Settlement System
Administrator or (as the case may be) the Pool Funds
Administrator has given notice to it (copied to the
Executive Committee and the Director) that payment has not
been received and requiring such default to be remedied; or
66.3.4 the Defaulting Pool Member shall fail to pay in the manner
provided in this Agreement any sum payable by it hereunder
to the Executive Committee within 28 days after the
Executive Committee has given notice to it (copied to the
Director) that payment has not been received and requiring
such default to be remedied; or
66.3.5 the Defaulting Pool Member shall fail in any material
respect to perform or comply with any of its other
obligations under this Agreement and such default (if it is
capable of remedy) is not remedied within a reasonable
period of time (not exceeding 90 days) after the Executive
Committee has given notice to the Defaulting Pool Member
(copied to the Director) of the occurrence thereof and
requiring the same to be remedied; or
66.3.6 the Defaulting Pool Member:-
(a) is unable to pay its debts (within the meaning of section
123(1) or (2) of the Insolvency Act 1986, but subject as
hereinafter provided in this Clause 66.3.6) or if any
voluntary agreement is proposed in relation to it under
section 1 of that Act or enters into any scheme of
arrangement (other than for the purpose of reconstruction or
amalgamation upon terms and within such period as may
previously have been approved in writing by the Executive
Committee);
(b) has a receiver (which expression shall include an
administrative receiver within the meaning of section 29 of
the Insolvency Act 1986) of the whole or any material part
of its assets or undertaking appointed;
(c) has an administration order under section 8 of the
Insolvency Act 1986 made in relation to it;
(d) passes any resolution for winding-up other than a resolution
previously approved in writing by the Executive Committee;
or
(e) becomes subject to an order by the High Court for
winding-up.
For the purposes of paragraph (a) above section 123(1)(a) of
the Insolvency Act 1986 shall have effect as if for
"(pound)750" there was substituted (pound)10,000 and,
further, the Defaulting Pool Member shall not be deemed to
be unable to pay its debts for the purposes of paragraph (a)
above if any such demand as is mentioned in the said section
is being contested in good faith by the Defaulting Pool
Member with recourse to all appropriate measures and
procedures; or
66.3.7 the Licence (if any) granted to the Defaulting Pool Member
is determined or revoked or otherwise ceases to be in force
for any reason whatsoever,
in any such case for whatever reason and whether or not within the
control of the Defaulting Pool Member.
66.4 De-energisation:
66.4.1 If the Majority Default Calling Creditors shall give notice
to a Defaulting Pool Member under Clause 66.1.3 or the
Executive Committee shall give notice to a Defaulting Pool
Member under Clause 66.2.2 the Defaulting Pool Member shall
forthwith, and in compliance with the instructions of the
Grid Operator or (in the case of any connection to a User
System) the User whose System it is (the "Relevant User"),
take all such action as may be necessary to give effect to
the relevant De-energisation.
66.4.2 If the Defaulting Pool Member shall fail to take such action
as is referred to in Clause 66.4.1 within 48 hours after the
date of any such notice referred to therein, the Grid
Operator and/or, as the case may be, the Relevant User
undertakes to each of the other Parties and the Executive
Committee to use reasonable endeavours to effect or (as the
case may be) give instructions to effect such
De-energisation as quickly as practicable having regard to
all the circumstances affecting such De-energisation
(including any operational difficulties and relevant Licence
duties).
66.4.3 Each Pool Member hereby irrevocably and unconditionally
consents to its De-energisation by the Grid Operator and/or,
as the case may be, the Relevant User in the circumstances
set out in Clause 66.4.2.
66.5 Sharing of risk: Where an Event of Default is declared under Clause
66.1.1 or 66.2.1 in respect of a Defaulting Pool Member which is a
Public Electricity Supplier, then for the period beginning on the date
of the notice declaring such Event of Default until the earlier of:-
66.5.1 the date falling 28 days thereafter; and
66.5.2 the date on which the Event of Default has been remedied or
waived by Majority Default Calling Creditors or (as the case
may be) the Pool Members in general meeting,
(but not further or otherwise) each Pool Member (other than the
Defaulting Pool Member) shall be severally liable for its Contributory
Share (calculated on the basis that the Points allocated to the
Defaulting Pool Member are disregarded) of all sums (including United
Kingdom Value Added Tax) which such Defaulting Pool Member is required
under this Agreement to pay in respect of electricity taken by the
Defaulting Pool Member and Ancillary Services during each complete
Settlement Day falling within such period and which are not paid on the
due date therefor by the Defaulting Pool Member. The Defaulting Pool
Member shall indemnify and keep indemnified each Pool Member on demand
against all sums properly paid by such Pool Member pursuant to this
Clause 66.5 together with interest thereon from the date of payment by
such Pool Member to the date of its reimbursement (as well after as
before judgment) at the Default Interest Rate.
66.6 Indemnity on De-energisation: Where under Clause 66.4 the Grid Operator
and/or the Relevant User is required to effect or (as the case may be)
give instructions to effect a De-energisation the Defaulting Pool
Member, failing which, each Pool Member (but, in the case of each Pool
Member, only in respect of its Contributory Share at the time of
receipt of the request for indemnification, calculated on the basis
that the Points allocated to the Defaulting Pool Member are
disregarded) shall indemnify and keep indemnified the Grid Operator
and/or the Relevant User (as the case may be) on demand against any and
all liability, loss or damage which it may suffer or incur by reason of
effecting or giving instructions to effect such De-energisation.
66.7 Accrued rights and liabilities:
66.7.1 The suspension of a person as a Pool Member and the
cessation of a person as a Pool Member and/or a Party for
whatever reason shall not prejudice its accrued rights and
liabilities under this Agreement as at the date of its
suspension or (as the case may be) cessation or its rights
and liabilities under this Agreement which may accrue in
relation to the period during which it was not so suspended
or (as the case may be) it was a Party or any of its
obligations under this Agreement which are expressed to
continue notwithstanding such suspension or cessation.
66.7.2 Without prejudice to the generality of Clause 66.7.1, a
Defaulting Pool Member shall be liable for all sums
(including United Kingdom Value Added Tax) which it is
required under this Agreement to pay in respect of
electricity taken by it and Ancillary Services pending its
De-energisation pursuant to Clause 66.4.
67. TERM AND TERMINATION
67.1 Term: This Agreement shall have no fixed duration.
67.2 Suspension of Pool Member's voting rights: A Pool Member's voting rights
shall be suspended only in the circumstances and to the extent specified in
Clauses 66.1.2 and 66.2.1.
67.3 Termination as a Party: A Pool Member shall cease to be a Party only:-
67.3.1 in the circumstances and to the extent specified in Clauses 8.7 to 8.10
(inclusive);
67.3.2 in the circumstances and to the extent specified in Clauses 66.1.3 and
66.2.2; or
67.3.3 if, by unanimous resolution of all Committee Members, the
Executive Committee shall so reasonably determine and the
prior written consent of the Director shall have been
obtained.
67.4 Termination of the Agreement:
67.4.1 This Agreement may be terminated if a resolution of Pool
Members in general meeting is unanimously carried by those
Pool Members present in person or by proxy at the relevant
general meeting and the prior written consent of the
Director has been obtained.
67.4.2 The termination shall take effect from whichever is the
later in time of the date of the resolution referred to in
Clause 67.4.1 and the consent in writing of the Director
referred to in that Clause.
67.5 Clause exhaustive: The Pool Members agree that the foregoing provisions
of this Clause 67, when read with the Clauses referred to herein and
Clause 8.11, are exhaustive of the rights of suspension of a Pool
Member's voting rights, of termination of Pool Membership, of cessation
as a Party and of termination of this Agreement.
PART XX
CONFIDENTIALITY
68. DEFINITIONS AND INTERPRETATION
68.1 Definitions: In this Part XX, except where the context otherwise requires:-
"Authorised Recipient" means, in relation to any Protected Information,
any Business Person who, before the Protected Information had been
divulged to him by NGC or any subsidiary of NGC, had been informed of
the nature and effect of Clause 69 and who requires access to such
Protected Information for the proper performance of his duties as a
Business Person in the course of Permitted Activities;
"Business Person" means any person who is a Main Business Person or a
Corporate Functions Person, and "Business Personnel" shall be construed
accordingly;
"Confidential Information" means all data and other information
supplied to the Obligor or any nominee of the Obligor appointed
pursuant to paragraph 10 of Appendix 4 of Schedule 9 by another Party
under the provisions of this Agreement, and shall include copies of the
load modules referred to in Service Line 11 (Listings and Load
Modules);
"Corporate Functions Person" means any person who:-
(a) is a director of NGC; or
(b) is an employee of NGC or any of its subsidiaries carrying
out any administrative, finance or other corporate services
of any kind which in part relate to the Main Business; or
(c) is engaged as an agent of or an adviser to or performs work in
relation to or services for the Main Business;
"Generation Business" has the same meaning as in the NGC Transmission Licence;
"Main Business" means any business of NGC or any of its subsidiaries as
at the Effective Date or which it is required to carry on under the NGC
Transmission Licence, other than the Generation Business;
"Main Business Person" means any employee of NGC or any director or
employee of its subsidiaries who is engaged solely in the Main
Business, and "Main Business Personnel" shall be construed accordingly;
"Obligor" has the meaning given to that term in Clause 70.1;
"Permitted Activities" means activities carried on for the purposes of
the Main Business; and
"Protected Information" means any information relating to the affairs
of a Party which is furnished to Business Personnel pursuant to this
Agreement unless, prior to such information being furnished, such Party
has informed the recipient thereof by notice in writing or by
endorsement on such information that the said information is not to be
regarded as Protected Information.
68.2 Interpretation: For the avoidance of doubt, data and other information
which any Party is permitted or obliged to divulge or publish to any
other Party pursuant to this Agreement shall not necessarily be
regarded as being in the public domain by reason of being so divulged
or published.
69. CONFIDENTIALITY FOR NGC AND ITS SUBSIDIARIES
69.1 Protection of Protected Information: NGC and its subsidiaries in each
of their capacities in this Agreement shall secure that Protected
Information is
not:-
69.1.1 divulged by Business Personnel to any person unless that person
is an Authorised Recipient;
69.1.2 used by Business Personnel for the purposes of obtaining for NGC
or any of its subsidiaries or for any other person:-
(a) any electricity licence; or
(b) any right to purchase or otherwise acquire, or to
distribute, electricity (including rights under any
electricity purchase contract, as defined in the NGC
Transmission Licence); or
(c) any contract or arrangement for the supply of
electricity to Customers or Suppliers; or
(d) any contract for the use of any electrical lines or
electrical plant belonging to or under the control of a Supplier; or
(e) control of any body corporate which, whether directly or
indirectly, has the benefit of any such licence, contract or arrangement; and
69.1.3 used by Business Personnel for the purpose of carrying on any
activities other than Permitted Activities,
except with the prior consent in writing of the Party to whose affairs
such Protected Information relates.
69.2 Exceptions: Nothing in this Clause 69 shall apply:-
69.2.1 to any Protected Information which, before it is furnished to
Business Personnel, is in the public domain; or
69.2.2 to any Protected Information which, after it is furnished to Business
Personnel:-
(a) is acquired by NGC or any subsidiary of NGC in circumstances in
which this Clause 69 does not apply; or
(b) is acquired by NGC or any subsidiary of NGC in circumstances in
which this Clause 69 does apply and thereafter ceases to be
subject to the restrictions imposed by this Clause 69; or
(c) enters the public domain,
and in any such case otherwise than as a result of (i) a breach by
NGC or any subsidiary of NGC of its obligations in this Clause 69
or (ii) a breach by the person who disclosed that Protected
Information of that person's confidentiality obligation and NGC
or any of its subsidiaries is aware of such breach; or
69.2.3 to the disclosure of any Protected Information to any person
if NGC or any subsidiary of NGC is required or expressly
permitted to make such disclosure to such person:-
(a) in compliance with the duties of NGC or any subsidiary of NGC
under the Act or any other requirement of a Competent Authority;
or
(b) in compliance with the conditions of the NGC Transmission Licence
or any document referred to in the NGC Transmission Licence with
which NGC or any subsidiary of NGC is required by virtue of the
Act or the NGC Transmission Licence to comply; or
(c) in compliance with any other requirement of law; or
(d) in response to a requirement of any stock exchange or regulatory
authority or the Panel on Take-overs and Mergers; or
(e) pursuant to the arbitration rules for the Electricity Arbitration
Association or pursuant to any judicial or other arbitral process
or tribunal having jurisdiction in relation to NGC or its
subsidiaries; or
69.2.4 to any Protected Information to the extent that NGC or any
of its subsidiaries is expressly permitted or required to
disclose that information under the terms of any agreement
or arrangement (including this Agreement, the Grid Code, the
Distribution Codes and the Fuel Security Code) with the
Party to whose affairs such Protected Information relates;
or
69.2.5 to any Protected Information but only to the extent that it
has been properly provided to NGC or any subsidiary of NGC
by the Settlement System Administrator pursuant to any
provision of the Pool Rules.
69.3 Use of information by NGC: NGC and each of its subsidiaries may
use all and any information or data supplied to or acquired by it
from or in relation to the other Parties in performing Permitted
Activities including, for the following purposes:-
69.3.1 the operation and planning of the NGC Transmission System;
69.3.2 the calculation of charges and preparation of offers of terms
for connection to or use of the NGC Transmission System;
69.3.3 the operation and planning of the Ancillary Services Business
and the calculation of charges therefor;
69.3.4 the operation of the Settlements Business;
69.3.5 the provision of information under the British Grid Systems
Agreement and the EdF Documents,
and may pass the same to subsidiaries of NGC which carry out such
activities and the Parties agree to provide all information to NGC and
its subsidiaries for such purposes.
69.4 Restrictions on Business Personnel: NGC undertakes to each of the other
Parties that, having regard to the activities in which any Business
Person is engaged and the nature and effective life of the Protected
Information divulged to him by virtue of such activities, neither NGC
nor any of its subsidiaries shall unreasonably continue (taking into
account any industrial relations concerns reasonably held by it) to
divulge Protected Information or permit Protected Information to be
divulged by any subsidiary of NGC to any Business Person:-
69.4.1 who has notified NGC or the relevant subsidiary of his
intention to become engaged as an employee or agent of any
other person (other than of NGC or any subsidiary thereof)
who is:-
(a) authorised by licence or exemption to generate,
transmit or supply electricity; or
(b) an electricity broker or who is known to be engaged in
the writing of electricity purchase contracts (as hereinbefore defined); or
(c) known to be retained as a consultant to any such person
who is referred to in paragraph (a) or (b) above; or
69.4.2 who is to be transferred to the Generation Business,
save where NGC or such subsidiary could not, in all the circumstances,
reasonably be expected to refrain from divulging to such Business
Person Protected Information which is required for the proper
performance of his duties.
69.5 Identification of Protected Information: Without prejudice to the other
provisions of this Clause 69, NGC shall procure that any additional
copies made of the Protected Information, whether in hard copy or
computerised form, will clearly identify the Protected Information as
protected.
69.6 Corporate Functions Person: NGC undertakes to use all reasonable endeavours
to procure that no employee is a Corporate Functions Person unless the same
is necessary for the proper performance of his duties.
69.7 Charge restriction condition variable: Without prejudice to Clause
69.3, NGC and each of its subsidiaries may use and pass to each other
all and any Period Metered Demand data supplied to or acquired by it
and all and any information and data supplied to it pursuant to Section
OC6 of the Grid Code for the purposes of Demand Control (as defined in
the Grid Code), but in each case only for the purposes of its
estimation and calculation from time to time of the variable "system
maximum ACS demand" (as defined in Condition 4 of the NGC Transmission
Licence).
69.8 Ancillary Services: NGC shall secure that Protected Information which
is subject to the provisions of Clause 69.1 and which relates to the
cost of Reactive Power provided by each individual Generator is not
divulged to any Business Person engaged in the provision of static
compensation for use by the Grid Operator.
69.9 Metering data - Distribution System: Any information regarding, or data
acquired by the Settlement System Administrator or its agent from,
Metering Equipment at Sites which are a point of connection to a
Distribution System shall and may be passed by the Settlement System
Administrator or his agent to the operator of the relevant Distribution
System. The said operator of the relevant Distribution System may use
the same only for the purposes of the operation of such Distribution
System and the calculation of charges for use of and connection to such
Distribution System.
69.10 Metering data - Qualifying Arrangements: The Settlement System
Administrator and the Grid Operator shall and may pass any relevant
information and data relating to the Genset Metered Generation
(including, for the avoidance of doubt, all relevant Metered Data, as
defined in paragraph 3.1.2 of Schedule 9) of any of the Generating
Units which are the subject of qualifying arrangements (as defined in
section 33 of the Act) to such person as may be specified from time to
time pursuant to such qualifying arrangements.
70. CONFIDENTIALITY OTHER THAN FOR NGC AND ITS SUBSIDIARIES
70.1 General obligation: Each Party (other than NGC and its subsidiaries)
(the "Obligor") hereby undertakes with each other Party (including NGC
and its subsidiaries) that it shall preserve the confidentiality of,
and not directly or indirectly reveal, report, publish, disclose or
transfer or use for its own purposes Confidential Information except:-
70.1.1 in the circumstances set out in Clause 70.2; or
70.1.2 to the extent otherwise expressly permitted by this
Agreement; or
70.1.3 with the prior consent in writing of the Party to whose affairs
such Confidential Information relates; or
70.1.4 to the extent that it has been properly provided to the
Obligor by the Settlement System Administrator pursuant to
any provision of the Pool Rules.
70.2 Exceptions: The circumstances referred to in Clause 70.1.1 are:-
70.2.1 where the Confidential Information, before it is furnished to the
Obligor, is in the public domain; or
70.2.2 where the Confidential Information, after it is furnished to the
Obligor:-
(a) is acquired by the Obligor in circumstances in which this Clause 70
does not apply; or
(b) is acquired by the Obligor in circumstances in which this Clause 70
does apply and thereafter ceases to be subject to the restrictions
imposed by this Clause 70; or
(c) enters the public domain,
and in any such case otherwise than as a result of (i) a
breach by the Obligor of its obligations in this Clause 70
or (ii) a breach by the person who disclosed that
Confidential Information of that person's confidentiality
obligation and the Obligor is aware of such breach; or
70.2.3 if the Obligor is required or permitted to make disclosure of the
Confidential Information to any person:-
(a) in compliance with the duties of the Obligor under the
Act or any other requirement of a Competent Authority; or
(b) in compliance with the conditions of any Licence or
any document referred to in any Licence with which the
Obligor is required to comply; or
(c) in compliance with any other requirement of law; or
(d) in response to a requirement of any stock exchange or
regulatory authority or the Panel on Take-overs and Mergers; or
(e) pursuant to the arbitration rules for the Electricity
Arbitration Association or pursuant to any judicial or
other arbitral process or tribunal having jurisdiction
in relation to the Obligor; or
70.2.4 to the employees, directors, agents, consultants and
professional advisers of the Obligor, in each case on the basis set out in
Clause 70.3.
70.3 Internal procedures: With effect from the date of this Agreement the
Obligor shall adopt procedures within its organisation for ensuring the
confidentiality of all Confidential Information which it is obliged to
preserve as confidential under Clause 70.1. These procedures are:-
70.3.1 the Confidential Information will be disseminated within the
Obligor only on a "need to know" basis;
70.3.2 employees, directors, agents, consultants and professional
advisers of the Obligor in receipt of Confidential
Information will be made fully aware of the Obligor's
obligations of confidence in relation thereto; and
70.3.3 any copies of the Confidential Information, whether in hard
copy or computerised form, will clearly identify the
Confidential Information as confidential.
71. RELEASE OF INFORMATION
71.1 Notwithstanding any foregoing provisions of this Part XX, the Parties
agree that each of them shall be at liberty to provide copies of this
Agreement and any supplemental agreement to both or either thereof to
any third party, and each of the Parties consents to disclosure by any
other Party of the fact that it is a party to this Agreement and, where
such is the case, a Pool Member.
71.1.1 The following provisions of this Clause are designed to
facilitate the release of certain data and other information
to persons who are not Parties. Such provisions are without
prejudice to any Party's rights to disclose or use data or
information pursuant to the other provisions of this
Agreement or otherwise.
71.1.2 At the request of the Executive Committee or any person who
is not a Party and against payment by or on behalf of the
person to whom the data or other information is to be
released of a fee or charge therefor calculated mutatis
mutandis on the basis set out in Clause 34.2, the Settlement
System Administrator shall provide to such person(s) as the
Executive Committee may nominate or (as the case may be) to
the person requesting the same, data and other information
received by the Settlement System Administrator in or
derived from the operation of the Settlement System provided
that:-
(a) the Pool Rules specify that such data or other information
may be so released; or
(b) the Party to whose affairs such data or other information
relates has given its prior consent in writing to such
disclosure.
71.1.3 Upon request by the Executive Committee, the Settlement
System Administrator shall notify the Executive Committee in
writing of any request received by it from any person under
Clause 71.1.2 and of the name of such person and shall give
details of the data and other information provided.
71.1.4 Each of the Parties agrees to the release of data and other
information in the circumstances described in Clause 71.1.2.
71.2 The Parties acknowledge that, for the Executive Committee and each of
its sub-committees properly to carry out its duties and
responsibilities under this Agreement, the Executive Committee may
decide or be obliged to keep confidential to it (and may instruct its
sub-committees to keep confidential) matters, reports, data and other
information produced by or for, made available to or held by, the
Executive Committee or the relevant sub-committee and, in any such
case, Committee Members shall neither disclose the same to the Pool
Member(s) which they represent nor be required by such Pool Member(s)
so to disclose. Each of the Parties agrees to respect the position of
the Executive Committee, its sub-committees and the Committee Members
accordingly.
71.3 Each of the Parties other than the Settlement System Administrator, the
Grid Operator, the Ancillary Services Provider and the Pool Funds
Administrator agrees, subject to any relevant confidentiality restriction
binding on it, to provide the Executive Committee, the Chief Executive and
the personnel referred to in Clause 17.2.1 with all data and other
information reasonably requested by the Executive Committee and necessary
for the Executive Committee, the Chief Executive or (as the case may be)
such personnel properly to carry out its or his duties and responsibilities
under this Agreement. The Grid Operator and the Ancillary Services Provider
each agree, subject to any relevant confidentiality restriction binding on
it, to provide the Executive Committee, the Chief Executive and the
personnel referred to in Clause 17.2.1 with such data and other information
relating to its duties, responsibilities or obligations under this
Agreement which the Executive Committee shall reasonably request and which
is necessary for the Executive Committee, the Chief Executive or (as the
case may be) such personnel to carry out its or his duties and
responsibilities under this Agreement.
71.4 Each Party acknowledges and agrees that no Party shall be in breach of
any obligation of confidentiality owed by it pursuant to this Agreement
in reporting under Clause 6.10 any breach of the Pool Rules or its
belief that any such breach has occurred.
71.5 Notwithstanding any other provision of this Agreement, the provisions of
this Part XX shall continue to bind a person after its cessation as a Party
for whatever reason.
PART XXI
THE PARTICIPATION OF NGC
72. THE PARTICIPATION OF NGC
72.1 As Grid Operator: For so long as NGC is the Grid Operator, references
in this Agreement to the Grid Operator shall be read and construed as
references to NGC acting in its capacity as Grid Operator, and all
rights, benefits, duties, responsibilities, liabilities and obligations
under this Agreement with regard to the Grid Operator shall be those of
NGC acting in that capacity.
72.2 As Ancillary Services Provider: For so long as NGC is the Ancillary
Services Provider, references in this Agreement to the Ancillary
Services Provider shall be read and construed as references to NGC
acting in its capacity as Ancillary Services Provider, and all rights,
benefits, duties, responsibilities, liabilities and obligations under
this Agreement with regard to the Ancillary Services Provider shall be
those of NGC acting in that capacity. The Ancillary Services Provider
shall have the benefit of the obligations and undertakings entered into
by the Settlement System Administrator and Pool Funds Administrator in
this Agreement.
72.3 As Pool Member: The Parties acknowledge that NGC is not in any of its
capacities under this Agreement a Pool Member.
72.4 Wholly-owned subsidiary: NGC shall procure that so long as Energy
Settlements and Information Services Limited is appointed Settlement
System Administrator it shall at all times remain a wholly-owned
subsidiary of, and wholly controlled by, NGC.
73. [Not used.]
PART XXII
MISCELLANEOUS
74. FORCE MAJEURE
74.1 Force Majeure: Where the Settlement System Administrator, the Grid
Operator, the Pool Funds Administrator or the Ancillary Services
Provider (the "Non-Performing Party") is unable to carry out all or any
of its obligations under the SSA Arrangements by reason of Force
Majeure (but subject, in the case of the Settlement System
Administrator, to Section 33 of Schedule 4):-
74.1.1 the SSA Arrangements shall remain in effect; but
74.1.2 (a) the Non-Performing Party's relevant obligations;
(b) the obligations of each of the other Parties owed to the
Non-Performing Party under the SSA Arrangements; and
(c) any other obligations (not being payment obligations)
of such other Parties under the SSA Arrangements owed
inter se which the relevant Party is unable to carry
out directly as a result of the suspension of the
Non-Performing Party's obligations
shall be suspended for a period equal to the Force Majeure provided that:-
(i) the suspension of performance is of no greater scope and
of no longer duration than is required by the Force Majeure;
(ii) no obligations of any Party are excused as a result of
the Force Majeure; and
(iii) in respect of the suspension of the Non-Performing
Party's obligations:-
(A) the Non-Performing Party gives the Executive
Committee (which shall promptly inform the
other Parties, the Pool Auditor and the
Director) prompt notice describing the
circumstance of Force Majeure, including the
nature of the occurrence and its expected
duration, and continues to furnish daily
reports with respect thereto during the
period of Force Majeure; and
(B) the Non-Performing Party uses all reasonable
efforts to remedy its inability to perform.
74.2 Discussions: As soon as practicable after the occurrence of the Force
Majeure the Non-Performing Party shall discuss with the Executive
Committee how best to continue its operations and give effect to its
obligations so far as possible in accordance with this Agreement.
75. NOTICES
75.1 Addresses: Save as otherwise expressly provided in the SSA
Arrangements, any notice or other communication to be given by one
Party to another under, or in connection with the matters contemplated
by, the SSA Arrangements shall be addressed to the recipient and sent
to the address, telex number or facsimile number of such other Party
given in the SSA Arrangements for the purpose and marked for the
attention of the person so given or to such other address, telex number
and/or facsimile number and/or marked for such other attention as such
other Party may from time to time specify by notice given in accordance
with this Clause 75 to the Party giving the relevant notice or other
communication to it.
75.2 Executive Committee: Any notice or other communication to be given to
the Executive Committee under, or in connection with the matters
contemplated by, the SSA Arrangements shall be sent to the Secretary at
the address, telex number or facsimile number given in the SSA
Arrangements for the purpose or to such other address, telex number or
facsimile number as the Secretary may from time to time specify by
notice given in accordance with this Clause 75 to the Parties.
75.3 Deemed receipt: Save as otherwise expressly provided in the SSA
Arrangements, any notice or other communication to be given by any
Party to any other Party under, or in connection with the matters
contemplated by, the SSA Arrangements shall be in writing and shall be
given by letter delivered by hand or sent by first class prepaid post
(airmail if overseas) or telex or facsimile, and shall be deemed to
have been received:-
75.3.1 in the case of delivery by hand, when delivered; or
75.3.2 in the case of first class prepaid post, on the second day
following the day of posting or (if sent airmail overseas or
from overseas) on the fifth day following the day of
posting; or
75.3.3 in the case of telex, on the transmission of the automatic
answer-back of the addressee (where such transmission occurs
before 1700 hours on the day of transmission) and in any
other case on the day following the day of transmission; or
75.3.4 in the case of facsimile, on acknowledgement by the
addressee's facsimile receiving equipment (where such
acknowledgement occurs before 1700 hours on the day of
acknowledgement) and in any other case on the day following
the day of acknowledgement.
76. ASSIGNMENT
A Party shall not assign and/or transfer and shall not purport to
assign and/or transfer any of its rights and/or obligations under the
SSA Arrangements provided that any Party may assign by way of security
only all or any of its rights over receivables arising under the SSA
Arrangements.
77. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
different Parties on separate counterparts, each of which when executed
and delivered shall constitute an original, but all the counterparts
shall together constitute but one and the same instrument.
78. WAIVERS; REMEDIES NOT CUMULATIVE
78.1 Waivers: No delay by or omission of any Party in exercising any right,
power, privilege or remedy under the SSA Arrangements shall operate to
impair such right, power, privilege or remedy or be construed as a
waiver thereof. Any single or partial exercise of any such right,
power, privilege or remedy shall not preclude any other or further
exercise thereof or the exercise of any other right, power, privilege
or remedy.
78.2 Remedies not cumulative: The rights and remedies provided by the SSA
Arrangements to the Parties are exclusive and not cumulative and
exclude and are in place of all substantive (but not procedural) rights
or remedies express or implied and provided by common law or statute in
respect of the subject matter of the SSA Arrangements (other than any
such rights or remedies provided under section 58 of the Act or any
directions (if any) issued thereunder), including without limitation
any rights any Party may possess in tort which shall include actions
brought in negligence and/or nuisance. Accordingly, each of the Parties
hereby waives to the fullest extent possible all such rights and
remedies provided by common law or statute, and releases a Party which
is liable to another (or others), its officers, employees and agents to
the same extent from all duties, liabilities, responsibilities or
obligations provided by common law or statute in respect of the matters
dealt with in this Agreement and undertakes not to enforce any of the
same except as expressly provided herein.
78.3 Director's and Secretary of State's rights: For the avoidance of doubt,
the Parties acknowledge and agree that nothing in the SSA Arrangements
shall exclude or restrict or otherwise prejudice or affect any of the
rights, powers, privileges, remedies, duties and obligations of the
Secretary of State or the Director under the Act or any Licence or
otherwise howsoever.
79. SEVERANCE OF TERMS
If for any reason whatever any provision of the SSA Arrangements is or
becomes invalid, illegal or unenforceable, or is declared by any court
of competent jurisdiction or any other Competent Authority to be
invalid, illegal or unenforceable or if such Competent Authority:-
(a) refuses, or formally indicates an intention to refuse,
authorisation of, or exemption to, any of the provisions of or
arrangements contained in the SSA Arrangements (in the case of
a refusal either by way of outright refusal or by way of
requiring the amendment or deletion of any provision of the
SSA Arrangements and/or the inclusion of any provision in the
SSA Arrangements and/or the giving of undertakings or the
acceptance of conditions as to future conduct before such
authorisation or exemption can be granted); or
(b) formally indicates that to continue to operate any provision
of the SSA Arrangements may expose the Parties to sanctions
under any law, order, enactment or regulation, or requests any
Party to give undertakings or to accept conditions as to
future conduct in order that such Party may not be subject to
such sanctions
and, in all cases, whether initially or at the end of any earlier
period or periods of exemption then, in any such case, the Parties will
negotiate in good faith with a view to agreeing one or more provisions
which may be substituted for such invalid, unenforceable or illegal
provision which substitute provision(s) is(are) satisfactory to the
Competent Authority(ies) and produce(s) as nearly as is practicable in
all the circumstances the appropriate balance of the commercial
interests of the Parties.
80. ENTIRE AGREEMENT
The SSA Arrangements contain or expressly refer to the entire agreement
between the Parties with respect to the subject matter hereof and
expressly exclude any warranty, condition or other undertaking implied
at law or by custom and supersedes all previous agreements and
understandings between the Parties with respect thereto and each of the
Parties acknowledges and confirms that it does not enter into this
Agreement in reliance on any representation, warranty or other
undertaking not fully reflected in the terms of the SSA Arrangements.
81. LANGUAGE
Each notice, instrument, certificate or other document to be given by
one Party to another hereunder shall be in the English language.
82. RESTRICTIVE TRADE PRACTICES ACT 1976
If after the commencement of section 100 of the Act (the "RTP Section")
this Agreement is subject to registration under the Restrictive Trade
Practices Act 1976 then NGC undertakes, no earlier than five months but
no later than six months after the commencement of the RTP Section, to
furnish to the Director General of Fair Trading particulars of this
Agreement and of any agreement of which it forms part. Before
furnishing such particulars NGC will consult with the Founder
Generators and the Founder Suppliers as to the nature of the
particulars to be so furnished and will consult with the Founder
Generators and Founder Suppliers regularly regarding the progress of
discussions with the Director General of Fair Trading in regard to the
agreement(s) so furnished.
83. ARBITRATION
83.1 Referral to arbitration: Save where expressly stated in this Agreement
to the contrary and subject to any contrary provision of the Act or any
Licence or the rights, powers, duties and obligations of the Director
or the Secretary of State under the Act, any Licence or otherwise
howsoever, any dispute or difference of whatever nature howsoever
arising under, out of or in connection with the SSA Arrangements
between any one or more Parties shall be and is hereby referred to
arbitration pursuant to the arbitration rules of the Electricity
Arbitration Association in force from time to time.
83.2 Proper law: Whatever the nationality, residence or domicile of any
Party and wherever the dispute or difference or any part thereof arose
the law of England shall be the proper law of any reference to
arbitration hereunder and in particular (but not so as to derogate from
the generality of the foregoing) the provisions of the Arbitration Acts
1950 (notwithstanding anything in section 34 thereof) to 1979 shall
apply to any such arbitration wherever the same or any part of it shall
be conducted.
83.3 Third Party Claims (1): Subject always to Clause 83.6, if any tariff
customer (as defined in section 22(4) of the Act) brings any legal
proceedings in any court (as defined in the Rules of the Supreme Court
1965 and in the County Courts Act 1984) against one or more persons,
any of which is a Party (the "Defendant Contracting Party"), and the
Defendant Contracting Party wishes to make a Third Party Claim (as
defined in Clause 83.5) against any other Party (a "Contracting Party")
which would but for this Clause 83.3 have been a dispute or difference
referred to arbitration by virtue of Clause 83.1 then, notwithstanding
the provisions of Clause 83.1 which shall not apply and in lieu of
arbitration, the court in which the legal proceedings have been
commenced shall hear and completely determine and adjudicate upon the
legal proceedings and the Third Party Claim not only between the tariff
customer and the Defendant Contracting Party but also between either or
both of them and any other Contracting Party whether by way of third
party proceedings (pursuant to the Rules of the Supreme Court 1965 or
the County Court Rules 1981) or otherwise as may be ordered by the
court.
83.4 Third Party Claims (2): Where a Defendant Contracting Party makes a
Third Party Claim against any Contracting Party and such Contracting
Party wishes to make a Third Party Claim against a further Contracting
Party the provisions of Clause 83.3 shall apply mutatis mutandis as if
such Contracting Party had been the Defendant Contracting Party and
similarly in relation to any such further Contracting Party.
83.5 Third Party Claims (3): For the purposes of this Clause 83
"Third Party Claim" shall mean:-
83.5.1 any claim by a Defendant Contracting Party against a
Contracting Party (whether or not already a party to the
legal proceedings) for any contribution or indemnity; or
83.5.2 any claim by a Defendant Contracting Party against such a
Contracting Party for any relief or remedy relating to or
connected with the subject matter of the legal proceedings
and substantially the same as some relief or remedy claimed
by the tariff customer; or
83.5.3 any requirement by a Defendant Contracting Party that any
question or issue relating to or connected with the subject
matter of the legal proceedings should be determined not
only as between the tariff customer and the Defendant
Contracting Party but also as between either or both of them
and a Contracting Party (whether or not already a party to
the legal proceedings).
83.6 Limitation: Clause 83.3 shall apply only if at the time the legal
proceedings are commenced no arbitration has been commenced between the
Defendant Contracting Party and another Contracting Party raising or
involving the same or substantially the same issues as would be raised
by or involved in the Third Party Claim. The tribunal in any
arbitration which has been commenced prior to the commencement of legal
proceedings shall determine the question, in the event of dispute,
whether the issues raised or involved are the same or substantially the
same.
84. JURISDICTION
84.1 Submission to jurisdiction: Subject and without prejudice to Clauses 83
and 84.4, all the Parties irrevocably agree that the courts of England
are to have exclusive jurisdiction to settle any disputes which may
arise out of or in connection with the SSA Arrangements and that
accordingly any suit, action or proceeding (together in this Clause 84
referred to as "Proceedings") arising out of or in connection with the
SSA Arrangements may be brought in such courts.
84.2 Waiver: Each Party irrevocably waives any objection which it may have
now or hereafter to the laying of the venue of any Proceedings in any
such court as is referred to in this Clause and any claim that any such
Proceedings have been brought in an inconvenient forum and further
irrevocably agrees that a judgment in any Proceedings brought in the
English courts shall be conclusive and binding upon such Party and may
be enforced in the courts of any other jurisdiction.
84.3 Agent for service of process: Each Party which is not incorporated in
any part of England or Wales agrees that if it does not have, or shall
cease to have, a place of business in England or Wales it will promptly
and hereby does appoint the Settlement System Administrator (or such
other person as shall be acceptable to the Executive Committee)
irrevocably to accept service of process on its behalf in any
Proceedings in England.
84.4 Arbitration: For the avoidance of doubt nothing contained in the
foregoing provisions of this Clause 84 shall be taken as permitting a
Party to commence Proceedings in the courts where this Agreement
otherwise provides for Proceedings to be referred to arbitration.
85. GOVERNING LAW
The SSA Arrangements shall be governed by, and construed in all
respects in accordance with, English law.
IN WITNESS whereof this Agreement has been duly executed the day and year first
above written
CA971150.152
SCHEDULE 1
This Schedule reflects the parties as at 30th March, 1990
The Founder Generators
Registered Registered or
Name Number Principal Office
National Power PLC 2366963 Sudbury House
15 Newgate Street
London EC1A 7AU
PowerGen plc 2366970 53 New Broad Street
London EC2M 1JJ
Nuclear Electric plc 2264251 Barnett Way
Barnwood
Gloucester GL4 7RS
The National Grid Company plc (Pumped 2366977 National Grid House
Storage Business Division) Sumner Street
London SE1 9JU
Electricite de France, Service National - 3 Rue de Messine
75008 Paris
France
Scottish Power plc 117120 Cathcart House
Spean Street
Glasgow G44 4BE Scotland
Scottish Hydro-Electric PLC 117119 16 Rothesay Terrace Edinburgh
EH3 7SE Scotland
British Nuclear Fuels plc 1002607 Risley
Warrington
Cheshire WA3 6AS
The United Kingdom Atomic Energy Authority - 11 Charles II Street London
SW1 4QT
Central Power Limited 2251099 Mucklow Hill
Halesowen
West Midlands B62 8BP
SCHEDULE 2
This Schedule reflects the parties as at 30th March, 1990
The Founder Suppliers
Part A
Public Electricity Suppliers
Registered Registered or
Name Number Principal Office
Eastern Electricity plc 2366906 Wherstead Park
Wherstead
Ipswich
Suffolk
IP9 2AQ
East Midlands Electricity plc 2366923 398 Coppice Road
Arnold
Nottingham
NG5 7HX
London Electricity plc 2366852 Templar House
81-87 High Holborn
London WC1V 6NU
Manweb plc 2366937 Sealand Road
Chester
CH1 4LR
Midlands Electricity plc 2366928 Mucklow Hill
Halesowen
West Midlands
B62 8BP
Northern Electric plc 2366942 Carliol House
Market Street
Newcastle upon Tyne
NE1 6NE
NORWEB plc 2366949 Talbot Road
Manchester M16 6NE
SEEBOARD plc 2366867 Grand Avenue
Hove
East Sussex
BN3 2LS
Southern Electric plc 2366879 Littlewick Green
Maidenhead
Berkshire
SL6 3QB
South Wales Electricity plc 2366985 Newport Road
St Mellons
Cardiff
CF3 9XW
South Western Electricity plc 2366894 800 Park Avenue
Aztec West
Almondsbury
Bristol
BS12 4SE
Yorkshire Electricity Group plc 2366995 Wetherby Road
Scarcroft
Leeds
LS14 3HS
Part B
Second Tier Suppliers
Registered Registered or
Name Number Principal Office
National Power PLC 2366963 Sudbury House
15 Newgate Street
London
EC1A 7AU
PowerGen plc 2366970 53 New Broad Street
London
EC2M 1JJ
Nuclear Electric plc 2264251 Barnett Way
Barnwood
Gloucester
GL4 7RS
SEEBOARD plc 2366867 Grand Avenue
Hove
East Sussex
BN3 2LS
British Nuclear Fuels plc 1002607 Risley
Warrington
Cheshire
WA3 6AS
Part C
Others
Registered Registered or
Name Number Principal Office
Electricite de France, Service National - 3 Rue de Messine
75008
Paris
France
Scottish Power plc 117120 Cathcart House
Spean Street
Glasgow G44 4BE
Scotland
Scottish Hydro-Electric PLC 117119 16 Rothesay Terrace
Edinburgh EH3 7SE
Scotland
SCHEDULE 3
Form of Accession Agreement
THIS SUPPLEMENTAL AGREEMENT is made on [ ] BETWEEN:-
(1) [ ], a company incorporated [with limited liability] under the laws of [ ]
[(registered number [ ])] and having its [registered] [principal] office at
[ ] (the "New Party"); and
(2) [ ] (the "Nominee") on behalf of all the parties to the Pooling and
Settlement Agreement referred to below.
WHEREAS:-
(A) by an agreement dated 30th March, 1990 made between the Founder
Generators named therein (1), the Founder Suppliers named therein (2),
NGC Settlements Limited now known as Energy Settlements and Information
Services Limited as Settlement System Administrator (3), Energy Pool
Funds Administration Limited as Pool Funds Administrator (4), The
National Grid Company plc as Grid Operator and Ancillary Services
Provider (5), and Scottish Power plc and Electricite de France, Service
National as Externally Interconnected Parties (6) (as amended, varied,
supplemented, modified or suspended, the "Pooling and Settlement
Agreement") the parties thereto agreed to give effect to and be bound
by certain rules and procedures for the operation of an electricity
trading pool and the operation of a settlement system; and
(B) the New Party has requested that it be admitted as a Party pursuant to
Clause 3 of the Pooling and Settlement Agreement and each of the Parties
hereby agrees to such admission.
NOW IT IS HEREBY AGREED as follows:-
1. Unless the context otherwise requires, words and expressions defined in
the Pooling and Settlement Agreement shall bear the same meanings
respectively when used herein.
2. The Nominee (acting on behalf of each of the Parties) hereby admits the
New Party as an additional Party under the Pooling and Settlement
Agreement on the terms and conditions hereof and with effect from
[insert effective date of admission].
3. The New Party hereby accepts its admission as a Party and undertakes
with the Nominee (acting on behalf of each of the Parties) to perform
and to be bound by the terms and conditions of the Pooling and
Settlement Agreement as a Party as from the [insert effective date of
admission].
4. For all purposes in connection with the Pooling and Settlement
Agreement the New Party shall as from the [insert effective date of
admission] be treated as if it had been a signatory of the Pooling and
Settlement Agreement as a [[Generator]/[Supplier]/[Externally
Interconnected Party]]*, and as if this Agreement were part of the
Pooling and Settlement Agreement, and the rights and obligations of the
Parties shall be construed accordingly.
5. This Agreement and the Pooling and Settlement Agreement shall be read
and construed as one document and references in the Pooling and
Settlement Agreement to the Pooling and Settlement Agreement (howsoever
expressed) shall be read and construed as references to the Pooling and
Settlement Agreement and this Agreement.
6. This Agreement shall be governed by and construed in all respects in
accordance with English law and the provisions of Clauses 83 and 84 of the
Pooling and Settlement Agreement shall apply hereto mutatis mutandis.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first above written
[New Party]
By:
Notice details (Clause 75 of the Pooling and Settlement Agreement)
Address:
Telex number:
Facsimile number:
Attention:
[Nominee]
(for and on behalf of each of the parties to the Pooling and Settlement
Agreement)
By:
- ----------------------------------------------------------------------------
* Delete/complete as appropriate.
Note:this form will require adaptation in the circumstances described in
Clauses 3.11 to 3.14 inclusive.
SCHEDULE 4
Terms of Engagement of the Settlement System Administrator
Contents
1. DEFINITIONS
1.1 Definitions
1.2 Executive Committee's and Contract Manager's
obligations
2. ORDERING AND PROVISION OF SERVICES
3. THE SETTLEMENT SYSTEM ADMINISTRATOR'S CHARGES
4. STANDARD OF CARE, LIMITATION OF LIABILITY
AND INDEMNITY
4.1 Standard of care
4.2 Service Line
4.3 Limitation of liability
4.4 Death and personal injury
4.5 Exclusion of certain types of loss
4.6 Trust
4.7 Survival
4.8 Saving
4.9 Full negotiation
4.10 Indemnity
5. PERSONNEL
5.1 Standard of Personnel
5.2 Account Manager
5.3 Contract Manager
5.4 Restriction on recruiting Personnel
6. DUTIES AND RESPONSIBILITIES OF THE
SETTLEMENT SYSTEM ADMINISTRATOR
6.1 The Settlement System
6.2 Back-up arrangements
6.3 Metering
6.4 Works Programmes
6.5 Recommendations
6.6 Records
6.7 Provision of information (1)
6.8 Provision of information (2)
6.9 Provision of information (3)
6.10 Pool Rules
6.11 Arrangements with the Grid Operator and Ancillary Services
Provider
6.12 Arrangements with the Pool Funds Administrator
6.13 Notification of arrangements
6.14 Estimates
6.15 Advisory obligations
6.16 Quality management system and procedures
6.17 Documentation
6.18 Long term forecasting procedures
6.19 Provision of Hardware
6.20 Performance Improvement Programme
6.21 Data input and validation
7. PERFORMANCE OF DUTIES
7.1 Independent contractor
7.2 Delegation
8. RESPONSIBILITY FOR THE SSA SYSTEM
8.1 The SSA System
8.2 Developed software
8.3 Licensed software
8.4 Third party maintenance
8.5 SSA System changes
8.6 Maintenance of the SSA System Software
8.7 Notification of commercial use
9. SOFTWARE
9.1 Definitions
9.2 Representations and Warranties
10. MAINTENANCE ARRANGEMENTS
11. AUDIT ACCESS
12. INSURANCE RESPONSIBILITIES
12.1 Insurance requirements
12.2 Application of proceeds
12.3 Information requirements
12.4 Default
12.5 Change in insurance requirements
13. TERMINATION OF THE APPOINTMENT OF ESIS
13.1 Termination
13.2 Termination pursuant to Clause 67.4
14. RESIGNATION BY ESIS
15. REMOVAL OF ESIS AFTER 31ST MARCH, 1999
16. REMOVAL OF ESIS ON OR BEFORE 31ST MARCH, 1999
17. REMOVAL OF ESIS
17.1 Breach of obligations capable of remedy
17.2 Breach of obligations incapable of remedy
17.3 Insolvency
17.4 Change of Status
17.5 Removal Procedure
18. POWERS OF EXECUTIVE COMMITTEE ON RESIGNATION
AND REMOVAL
19. APPOINTMENT OF SUCCESSOR SETTLEMENT SYSTEM
ADMINISTRATOR
19.1 Approval of the Director
19.2 Discharge
20. CONTINUATION OF SERVICES
20.1 Continuation of Services
20.2 Post-Termination Services
20.3 Extension Period Charges
20.4 Post-Termination Period Charges
20.5 Two year limit
20.6 Full force and effect
21. TRANSFER OF SERVICES, RESPONSIBILITIES AND ASSETS
21.1 Transfer of services, responsibilities and assets
21.2 Asset Transfer Costs
21.3 Transition services
21.4 Disputes
22. ALLOCATION OF COSTS ON RESIGNATION
23. ALLOCATION OF COSTS ON REMOVAL AFTER 31ST MARCH, 1999
24. ALLOCATION OF COSTS ON REMOVAL ON OR BEFORE 31ST MARCH, 1999
25. ALLOCATION OF COSTS ON REMOVAL
26. REIMBURSEMENT BY POOL MEMBERS
27. DIRECTOR'S INVOLVEMENT
28. POOL MEMBER AND EXECUTIVE COMMITTEE BREACHES
29. VARIATION OF SERVICE LINES
30. EXTENSION OF TIME
31. CONTRACT MANAGEMENT RULES
31.1 Contract Management Rules
31.2 Amendments to the Contract Management Rules
32. GROSS MARGIN
32.1 Auditor's Report
32.2 Negotiations
33. FORCE MAJEURE
34. CONFIDENTIALITY
35. NOTICES
APPENDIX
1. DEFINITIONS
1.1. Definitions: In this Schedule and the Appendix hereto, except where the
context otherwise requires:-
"Account Manager" means the person or his alternate who has been
nominated as such by the Settlement System Administrator in accordance
with sub-section 5.2;
"Anticipated Fixed Standing Charges" has the meaning given to that term in the
Appendix hereto;
"Committed Additional Services Charges" has the meaning given to that term in
the Appendix hereto;
"Compensation" means the aggregate of:-
(a) 75 per cent. of the Profit Element attributable to the
Anticipated Fixed Standing Charges; and
(b) the Profit Element attributable to the Committed Additional
Services Charge;
"Contract Management Rules" means the procedures of that name in the
agreed form as amended, modified or varied in accordance with sub-section 31.2;
"Contract Manager" means the person or his alternate who has been
nominated as such by the Executive Committee in accordance with sub-section 5.3;
"Deferred Settlement Project Expenditure" has the meaning given to
that term in the Appendix hereto;
"Extension Notice" has the meaning given to that term in sub-section
20.1;
"Extension Period" has the meaning given to that term in sub-section
20.1;
"Gross Margin" means, in respect of each SSA Accounting Period, the
aggregate of all Total Sums Due invoiced in respect of such SSA
Accounting Period less those costs which can be directly related to the
provision of Services hereunder (but disregarding for the purposes of
such costs, tax, interest charges and Infrastructure Costs);
"Infrastructure" means those assets and resources which are not
dedicated to or directly attributable to the provision of part or parts
of the Services. For the avoidance of doubt, Infrastructure includes
the general manager, finance staff, personnel staff and procurement
staff and the buildings (or parts thereof) attributable to such staff;
"Infrastructure Costs" means those costs incurred by the Settlement
System Administrator in the provision of Infrastructure. For the
avoidance of doubt, Infrastructure Costs include the following costs to
the extent that they are not directly attributable to a part or parts
of the Services:-
(a) legal except where (i) such costs are agreed to be treated as
Third Party Costs, or (ii) such costs relate to the third (or
more) Supplemental Agreement in an SSA Accounting Period, in
which case they shall not be treated as Infrastructure Costs;
(b) training;
(c) audit;
(d) insurance;
(e) travelling;
(f) public relations;
(g) general depreciation; and
(h) group charges,
but do not include professional indemnity insurance costs or costs
related to Deferred Settlement Project Expenditure;
"in the agreed form" means in a form which is agreed on the one hand by
either the Account Manager or the Settlement System Administrator and
on the other hand by either the Contract Manager or the Executive
Committee;
"Irremediable Removal Notice" means a notice given by the Executive
Committee to the Settlement System Administrator pursuant to
sub-section 17.2, 17.3 or (as the context may require) 17.4;
"Menus of Prices" has the meaning given to that term in the Appendix
hereto;
"Order" has the meaning given to that term in the Appendix hereto;
"Outstanding Liabilities" means all liabilities incurred by the
Settlement System Administrator in providing the Services or to enable
it to provide the Services and which as at the Termination Date remain
to be discharged in whole or in part, other than the Pool Agreed
Liabilities;
"Performance Improvement Programme" means a programme agreed between
the Executive Committee and the Settlement System Administrator in
accordance with Section 10 of Part B of the Appendix hereto to improve
the cost-effectiveness of Services;
"Pool Agreed Liabilities" means all liabilities (including Deferred
Settlement Project Expenditure) incurred by the Settlement System
Administrator under any contract or arrangement entered into or renewed
by the Settlement System Administrator at the express written request
or with the express written approval of the Executive Committee or the
Contract Manager and which as at the Termination Date remain to be
discharged in whole or in part;
"Pool Apportioned Outstanding Liabilities" means all Outstanding
Liabilities which as at the Termination Date and according to their
terms at such date fall to be discharged on or before 31st March, 1999
provided that no such Outstanding Liability may be treated as a Pool
Apportioned Outstanding Liability:-
(a) where the Settlement System Administrator accounts for such
Outstanding Liability during the period following the giving
of a Removal Notice on a different basis from that used to
account for such Outstanding Liability on the date which is 12
months prior to such Removal Notice, unless the Executive
Committee or the Contract Manager has consented to such
different basis (such consent not to be unreasonably withheld)
or such different basis of accounting is required by law or
applicable accounting standard; or
(b) to the extent that the amount of the Outstanding Liability
increases in a non-immaterial respect after the giving of a
Removal Notice except where such increase is necessary for the
Settlement System Administrator to provide Services under an
Order;
"Post-Termination Period" means a period of up to twelve months after
the Termination Date;
"Profit Element" means the Gross Margin for the twelve month period
ending on the date of the Removal Notice as reported by the Settlement
System Administrator's auditor pursuant to sub-section 32.1, reduced by
9.4 per cent. on account of overhead costs;
"Remediable Removal Notice" means a notice given by the Executive
Committee to the Settlement System Administrator pursuant to sub-section 17.1;
"Removal Notice" means a notice given by the Executive Committee to the
Settlement System Administrator pursuant to Section 15 or 16 or (as the
case may be) sub-section 17.5;
"Resignation Notice" means a notice given by ESIS to the Executive
Committee and the Director pursuant to Section 14;
"Service Line" means a legally binding operating document which is
agreed for the time being and from time to time by the Settlement
System Administrator and the Executive Committee to be a Service Line
in respect of a particular Service;
"Services" has the meaning given to that term in the Appendix hereto;
"Sole Supplier Index" has the meaning given to that term in the
Appendix hereto;
"SSA Accounting Period" means each successive period of 12 months
beginning on 1st April in each year or of such other length and/or
beginning on such other date as may be agreed between the Settlement
System Administrator and the Executive Committee. The first SSA
Accounting Period shall begin on 1st April, 1994;
"SSA Apportioned Outstanding Liabilities" means all Outstanding
Liabilities other than the Pool Apportioned Outstanding
Liabilities;
"Termination Date" means the date upon which the appointment of ESIS as
Settlement System Administrator is terminated pursuant to Section 13.2,
14, 15, 16 or (as the context may require) 17, as the same may be
postponed pursuant to Section 20;
"Third Party Costs" has the meaning given to that term in the Appendix
hereto;
"Total Sums Due" has the meaning given to that term in the Appendix
hereto; and
"Transition Costs" means:-
(a) the costs incurred by the Settlement System Administrator
during the period from the date of the Removal Notice or the
Resignation Notice to the Termination Date in providing
reasonable training for the person who becomes the successor
Settlement System Administrator, such training to be a single
programme delivered once and to be to the same standards and
to use the same practices and procedures as are then set out
in the Service Lines at the date on which the consultation
procedure prior to serving a Removal Notice or a Resignation
Notice commences;
(b) reasonable costs incurred by the Settlement System
Administrator in supporting the commissioning and proving of
the successor Settlement System such that the successor
Settlement System Administrator is capable of operating on the
same basis and to the same frequencies as are set out in the
Service Lines at the date on which the consultation procedure
prior to serving a Removal Notice or a Resignation Notice
commences;
(c) the costs incurred by the Settlement System Administrator in
physically moving, relocating or handing over to the successor
Settlement System Administrator the property required to be
made available by ESIS (but not, for the avoidance of doubt,
the consideration payable therefor);
(d) the costs incurred by the Settlement System Administrator in
preparing and supplying to the successor Settlement System
Administrator procedural or practice documentation not already
recorded in writing; and
(e) the travelling and accommodation costs of the Settlement
System Administrator's employees in attending upon the
successor Settlement System Administrator for all or any of
the purposes in paragraph (a), (b) or (c) above.
1.2 Executive Committee's and Contract Manager's obligations: Where in this
Schedule and the Appendix hereto an obligation is expressed to be
undertaken by the Executive Committee or the Contract Manager, the Pool
Members shall procure that the Executive Committee or, as the case may
be, the Contract Manager performs that obligation and any breach,
failure or action on the part of the Executive Committee or the
Contract Manager shall be deemed to be a breach, failure or action on
the part of all Pool Members.
2. ORDERING AND PROVISION OF SERVICES
Ordering and provision of Services: Services shall be Ordered and
provided in accordance with and pursuant to the Appendix hereto and the
provisions of that Appendix shall have effect.
3. THE SETTLEMENT SYSTEM ADMINISTRATOR'S CHARGES
Payment for Services: The Settlement System Administrator shall be
entitled to recover from the Pool Members and Parties charges in
accordance with and pursuant to the Appendix hereto.
4. STANDARD OF CARE, LIMITATION OF LIABILITY AND INDEMNITY
4.1 Standard of care: Subject to sub-section 4.2, in the exercise of its
duties and responsibilities under the SSA Arrangements the Settlement
System Administrator shall exercise that degree of care, diligence,
skill and judgment which would ordinarily be expected of a reasonably
prudent operator of the Settlement System taking into account the
circumstances actually known to the Settlement System Administrator,
its officers and employees at the relevant time or which ought to have
been known to it or them had it or they made such enquiries as were
reasonable in the circumstances. In particular, but without prejudice
to the generality of the foregoing, in the absence of directions and
instructions given to it by the Executive Committee or the Contract
Manager under the SSA Arrangements and having due regard to the
constraints imposed on the Settlement System Administrator by the
Charging Procedure and the resources available to it, the Settlement
System Administrator shall at all times conduct itself in a manner
calculated to achieve the principal objects and purpose of the
Agreement set out in Clauses 4.1.2 and 4.1.3.
4.2 Service Line: If the standard required of the Settlement System
Administrator for the performance of a Service is included in the
Service Line for that Service, such standard shall be deemed to be the
standard to which the Settlement System Administrator will be required
to perform to discharge its duty of care under sub-section 4.1 in
respect of that Service.
4.3 Limitation of liability: Subject to sub-section 4.4 and save where any
provision of this Agreement provides for an indemnity, each Party
agrees and acknowledges that neither the Settlement System
Administrator nor any of its officers, employees or agents shall be
liable to any of the other Parties for loss arising from any breach of
the SSA Arrangements other than for loss directly resulting from such
breach and which at the date of this Agreement was reasonably
foreseeable as not unlikely to occur in the ordinary course of events
from such breach in respect of:-
(i) physical damage to the property of any of the other Parties or
its or their respective officers, employees or agents; and/or
(ii) the liability of any such other Party to any other person for
loss in respect of physical damage to the property of any other
person.
4.4 Death and personal injury: Nothing in the SSA Arrangements shall
exclude or limit the liability of the Settlement System Administrator
for death or personal injury resulting from the negligence of the
Settlement System Administrator or any of its officers, employees or
agents and the Settlement System Administrator shall indemnify and keep
indemnified each of the other Parties, its officers, employees and
agents from and against all such and any loss or liability which any
such other Party may suffer or incur by reason of any claim on account
of death or personal injury resulting from the negligence of the
Settlement System Administrator or any of its officers, employees or
agents.
4.5 Exclusion of certain types of loss: Subject to sub-section 4.4 and save
where any provision of this Agreement provides for an indemnity,
neither the Settlement System Administrator nor any of its officers,
employees or agents shall in any circumstances whatsoever be liable to
any of the other Parties for:-
(i) any loss of profit, loss of revenue, loss of use, loss of
contract or loss of goodwill; or
(ii) any indirect or consequential loss; or
(iii)loss resulting from the liability of any other Party to any
other person howsoever and whensoever arising save as provided in
paragraph 4.3(ii) and sub-section 4.4.
4.6 Trust: Each Party acknowledges and agrees that each of the other
Parties holds the benefit of sub-sections 4.3, 4.4 and 4.5 for
itself and as trustee and agent for its officers, employees and
agents.
4.7 Survival: Each of sub-sections 4.3, 4.4, 4.5 and 4.6 shall:-
(i) be construed as a separate and severable contract term, and if
one or more of such sub-sections is held to be invalid,
unlawful or otherwise unenforceable the other or others of
such sub-sections shall remain in full force and effect and
shall continue to bind the Parties; and
(ii) survive termination of the appointment of ESIS as Settlement
System Administrator.
4.8 Saving: For the avoidance of doubt, nothing in this Section 4
shall prevent or restrict any Party enforcing any obligation
(including suing for a debt) owed to it under or pursuant to this
Agreement.
4.9 Full negotiation: Each Party acknowledges and agrees that the
foregoing provisions of this Section 4 have been the subject of
discussion and negotiation and are fair and reasonable having
regard to the circumstances as at the date of this Agreement.
4.10 Indemnity:
(a) In this sub-section 4.10 "Losses" means all losses, costs,
damages, expenses, liabilities and claims suffered or
reasonably incurred by the Settlement System Administrator,
its officers, employees or agents.
(b) Each Pool Member (or, in the case of any agreement entered into
for or on behalf of any class of Pool Members, each Pool Member
of that class) shall (but only in respect of its Contributory
Share at the time of receipt of the request for indemnification)
severally indemnify and keep indemnified the Settlement System
Administrator, its officers, employees and agents against all
Losses arising directly or indirectly out of a third party claim
made against the Settlement System Administrator, its officers,
employees or agents under or pursuant to any agreement which the
Settlement System Administrator, against an Order or a request of
the Executive Committee issued or made as permitted by Part E of
the Appendix hereto, has entered into as agent for, or otherwise
on behalf of, the Pool Members and/or any class of Pool Members
and/or the Executive Committee (other than any Losses recoverable
under the Charging Procedure or arising from the wilful default,
bad faith or negligence of, or breach of its obligations under
the SSA Arrangements by, the Settlement System Administrator, its
officers, employees or agents). For the purposes of this
sub-section 4.10 the Pool Members in general meeting shall be
deemed to have approved the Escrow Agreement and each Accession
Agreement executed prior to 1st October, 1991 and the relevant
class of Pool Members which are parties thereto shall be deemed
to have approved each deed of indemnity entered into in favour of
a Pool Chairman where his period of appointment began on or
before 1st April, 1993.
5. PERSONNEL
5.1 Standard of Personnel: In and for the performance of the Services the
Settlement System Administrator shall engage only persons who are to
the Settlement System Administrator's knowledge suitably qualified,
skilled and honest and shall (where appropriate) provide such persons
with the requisite training for the work which they are to perform.
5.2 Account Manager: The Settlement System Administrator:-
(a) shall from time to time, after consultation with the Chief
Executive, nominate a person with responsibility for liaison
with the Contract Manager regarding the provision of the
Services;
(b) may also from time to time nominate up to two alternates for that
person; and
(c) shall have the right to remove the Account Manager at any time
provided that the Settlement System Administrator shall ensure
that there shall at all times be an Account Manager.
The Settlement System Administrator shall notify the Executive
Committee forthwith in writing of each nomination and removal of an
Account Manager and shall procure that the Account Manager shall be
available to be contacted by the Contract Manager at all reasonable
times during the provision of the Services.
5.3 Contract Manager: The Executive Committee:-
(a) shall from time to time, after consultation with the
Settlement System Administrator, nominate a person with
responsibility for liaison with the Account Manager regarding
the provision of the Services;
(b) may also from time to time nominate up to two alternates for that
person; and
(c) shall have the right to remove the Contract Manager at any
time provided that the Executive Committee shall ensure that
there shall at all times be a Contract Manager.
The Executive Committee shall notify the Settlement System
Administrator forthwith in writing of each nomination and removal of a
Contract Manager and shall procure that the Contract Manager shall be
available to be contacted by the Account Manager at all reasonable
times.
5.4 Restriction on recruiting Personnel:
5.4.1 From 1st April, 1994 until the date falling twelve months (or
such other period as the Settlement System Administrator and
the Executive Committee may agree) after the Termination Date
or, if there is a Post-Termination Period, the last day of the
Post-Termination Period:-
(a) ESIS shall not without the prior written consent of
the Chief Executive employ, solicit or entice or
endeavour to solicit or entice away from the Chief
Executive's Office any person who at that time is, or
was within the previous six months, an employee or
member of staff of the Chief Executive's Office or of
another person seconded to the Chief Executive's
Office; and
(b) Pool Members shall procure that neither the Chief
Executive nor any member of the Chief Executive's
Office nor any Committee Member shall without the
prior written consent of ESIS employ, solicit or
entice or endeavour to solicit or entice away from
ESIS any person who at that time is, or was within the
previous six months, an employee or member of staff of
ESIS.
Each undertaking contained in this paragraph 5.4.1 shall be
construed as a separate undertaking and if one or more of the
undertakings is held to be against the public interest or
unlawful or in any way an unlawful restraint of trade, the
remaining undertakings shall continue to bind the relevant
Party.
5.4.2 Breach by ESIS of its obligations under paragraph 5.4.1(a)
above shall not entitle the Executive Committee to terminate
the appointment of ESIS as Settlement System Administrator
under this Agreement and breach by a Pool Member of its
obligations under paragraph 5.4.1(b) above shall not
constitute a breach by a Pool Member of its obligations for
the purposes of Section 28, but in each case shall only
entitle such other party to claim damages or to bring
proceedings for an injunction.
6. DUTIES AND RESPONSIBILITIES OF THE SETTLEMENT SYSTEM ADMINISTRATOR
Responsibilities: Without prejudice to the generality of the duties,
responsibilities and obligations of the Settlement System
Administrator provided elsewhere in the SSA Arrangements, the
Settlement System Administrator shall:-
6.1 The Settlement System: Comply with its obligations under the SSA
Arrangements in respect of the day-to-day operation of the
Settlement System;
6.2 Back-up arrangements: In accordance with Service Line 7 (Disaster
Recovery), maintain back-up arrangements for the day-to-day
operation of the Settlement System;
6.3 Metering: Comply with its obligations under Part XV of and
Schedule 21 to this Agreement;
6.4 Works Programmes: Subject to the availability of resources,
co-operate in the preparation, finalisation and implementation of
all Works Programmes in respect of which the Settlement System
Administrator is not appointed Works Programme Manager;
6.5 Recommendations: At the invitation of the Executive Committee or
of its own initiative, recommend to the Executive Committee
changes to the Settlement System and the SSA Arrangements;
6.6 Records: In accordance with Service Line 6 (Off-site Security),
on the instruction of the Executive Committee maintain such
records, data and other information as the Pool Auditor may from
time to time by notice in reasonable detail to the Executive
Committee require for the purposes of Part IX of this Agreement
provided that this obligation shall cease to apply to the
Settlement System Administrator following its resignation or
removal;
6.7 Provision of information (1): Subject to any statutory or Licence
obligations, provide the Executive Committee upon request with
reports, data and other information concerning the Settlement
System (other than information which is exclusively confidential
to and the property of the Settlement System Administrator)
required by the Executive Committee and which the Settlement
System Administrator is required to retain under sub-section 6.6.
Each of the Parties agrees to the release of all such reports,
data and other information in the circumstances described in this
sub-section 6.7;
6.8 Provision of information (2): Provide the Pool Auditor upon
request with reports, data and other information concerning the
Settlement System required by the Pool Auditor and which the
Settlement System Administrator is required to retain under
sub-section 6.6. Each of the Parties agrees to the release of all
such reports, data and other information in the circumstances
described in this sub-section 6.8;
6.9 Provision of information (3): Provide each Pool Member, the
Ancillary Services Provider and the Grid Operator upon request
with a certified copy of such records, data and other information
concerning amounts payable by or to such Pool Member, the
Ancillary Services Provider and the Grid Operator in accordance
with Service Line 10 (Service to CEO and Pool Members). Each of
the Parties agrees to the release of all such records, data and
other information in the circumstances described in this
sub-section 6.9;
6.10 Pool Rules: Perform those specific duties and responsibilities
ascribed to it in the Pool Rules;
6.11 Arrangements with the Grid Operator and Ancillary Services
Provider: Make and maintain arrangements with the Grid Operator
and the Ancillary Services Provider in accordance with Clause
29.2;
6.12 Arrangements with the Pool Funds Administrator: Make and maintain
arrangements with the Pool Funds Administrator in accordance with
Clause 29.3;
6.13 Notification of arrangements: Provide, upon request, the
Executive Committee with details of its arrangements for the
time being in effect with each of the Grid Operator, the
Ancillary Services Provider and the Pool Funds Administrator
referred to in sub-section 6.11 or (as the case may be) 6.12;
6.14 Estimates: Without prejudice to its obligations under Section
17.8 of Schedule 11, where the Settlement System Administrator
is unable for whatever reason to provide the Pool Funds
Administrator with the actual information required in respect
of each Settlement Day for each Pool Member, the Ancillary
Services Provider and the Grid Operator, provide the Pool
Funds Administrator in accordance with Service Line 2
(Settlement Process) with its best estimates of that
information by the same time as it is required to provide the
actual information;
6.15 Advisory obligations:
6.15.1 Report to the Executive Committee and/or the Contract
Manager on those matters set out or referred to in the
Service Lines in the manner and within the timescales
prescribed thereby;
6.15.2 Report promptly in writing to the Executive
Committee:-
(a) any problem with the Settlement System or its
then current operation that is putting
pressure on the due and punctual performance
by the Settlement System Administrator of any
Service; and
(b) any problem of which the Settlement System
Administrator is or becomes aware about the
likely future operation of the Settlement
System arising out of the way in which the
Settlement System is then currently being
operated;
6.16 Quality management system and procedures:
6.16.1 Establish and keep under review a quality management
system that is designed to enable the Settlement
System Administrator to meet the standards set out or
referred to in sub-sections 4.1 and 4.2 and under that
system prepare and keep under review procedures to
meet such standards;
6.16.2 Provide the Executive Committee on request with copies
of such procedures and notify the Executive Committee
of any changes made thereto or, where such changes
require contribution or input from all or any of the
Parties, any proposed changes thereto; and
6.16.3 Consider any comments or any proposed changes on or to such
procedures made by or on behalf of the Executive Committee from
time to time;
6.17 Documentation: Maintain up-to-date manuals, specifications and
similar documentation for the provision of the Services and
provide the Executive Committee on request with copies of such
manuals, specifications and similar documentation;
6.18 Long-term forecasting procedures: Having regard to its knowledge
of the requirements of the Executive Committee and the Pool
Members:-
(a) consult the Contract Manager in respect of the
Settlement System Administrator's long term planning
for the use and allocation of resource cover;
(b) following consultation with the Contract Manager
pursuant to paragraph (a) above, plan for anticipated
future requirements of the Executive Committee and
Pool Members;
(c) maintain internal financial controls to ensure that the
objectives of this Schedule and the Appendix hereto are met; and
(d) provide the Executive Committee as appropriate or on
request with a report of the results and/or impact of
the matters arising from the consultation referred to
in paragraph (a) above;
6.19 Provision of Hardware:
6.19.1 Provide Hardware subject to compliance by the
Settlement System Administrator with its obligations
under the remainder of this sub-section;
6.19.2 Be entitled to change the Hardware provided that:-
(a) the Settlement System Administrator has given to the Executive
Committee reasonable prior notice of the intention to change the
Hardware;
(b) the Settlement System Administrator has given to the Executive
Committee reasonable details of the proposed change, together
with a timetable for implementation, at the time notice is given
under paragraph (a) above;
(c) the impact (if any) on the Settlement Software is detailed in the
notice given under paragraph (a) above and, if there shall be any
such impact, the proposed change to the Settlement Software shall
proceed in accordance with the Change Management Policies;
(d) any such change will not materially affect the operation or
function of the Settlement System; and
(e) all costs associated with any such change shall be met by the
Settlement System Administrator (and shall not be recharged to
Pool Members);
6.19.3 Make changes to the Hardware required by Pool Members,
acting through the Executive Committee, provided that
the Settlement System Administrator shall notify Pool
Members in accordance with the Change Management
Policies and appropriate changes to the Service Lines
and/or the Menus of Prices shall be agreed in
accordance with the Appendix hereto;
6.20 Performance Improvement Programme: Seek to identify and give
support to initiatives which may form the basis of Performance
Improvement Programmes;
6.21 Data input and validation:
6.21.1 Promptly and properly input such data and other
information as it may receive pursuant to the terms of this Agreement;
6.21.2 Review and validate data and other information in
accordance with the Agreed Procedures to establish the
completeness thereof and to identify any
inconsistencies therein.
7. PERFORMANCE OF DUTIES
7.1 Independent contractor: In carrying out its duties and responsibilities
under the SSA Arrangements, the Settlement System Administrator shall
act as an independent contractor and (unless expressly authorised to
the contrary) shall neither act nor hold itself out nor be held out as
acting as agent for any of the other Parties.
7.2 Delegation:
7.2.1 Subject as provided in paragraphs 7.2.2 and 7.2.3, the
Settlement System Administrator may delegate the performance
of all or any of its duties and responsibilities under the SSA
Arrangements to agents or contractors.
7.2.2 The Settlement System Administrator shall be entitled to
delegate the performance of all or any of its duties and
responsibilities under the SSA Arrangements provided that they
are not duties or responsibilities which are in respect of any
significant matter (unless the prior written approval of the
Executive Committee under paragraph 7.2.3 has been given).
7.2.3 In giving any such approval as is referred to in paragraph
7.2.2 the Executive Committee shall specify the particular
duties and responsibilities which may be delegated and to whom
and for what period. On receipt of such approval the
Settlement System Administrator may delegate its duties and
responsibilities only to the extent of the terms of such
approval.
7.2.4 As between the Settlement System Administrator and the other
Parties, no delegation pursuant to this sub-section 7.2 or
pursuant to Clause 60.15 nor the terms or conditions of any
contract pursuant to which any such delegation is effected
shall relieve the Settlement System Administrator of any of
its duties or responsibilities under the SSA Arrangements. The
Settlement System Administrator shall at all times properly
supervise the performance of all such delegates.
7.2.5For the avoidance of doubt, the term "delegation" as used in this
sub-section 7.2 includes sub-contracting.
8. RESPONSIBILITY FOR THE SSA SYSTEM
8.1 The SSA System: The Settlement System Administrator shall have
control of the running and development of the SSA System, subject
to the restrictions set out in this Section 8.
8.2 Developed software:
(a) In relation to any Software developed by the Settlement System
Administrator, the Settlement System Administrator shall
procure that all intellectual property rights shall vest in
the Settlement System Administrator absolutely. In the case of
Software commissioned from third parties or where rights in
Software are purchased, the Settlement System Administrator
shall procure that all intellectual property rights are
transferred to the Settlement System Administrator. Where the
Settlement System Administrator customises, or commissions the
customisation of, any Software licensed from any third
parties, the Settlement System Administrator shall procure
that all intellectual property rights shall vest in the
Settlement System Administrator.
(b) Pool Members confirm and agree (i) that they have no objection
to the intellectual property rights referred to in paragraph
(a) above being held in this way and (ii) that the Settlement
System Administrator shall have the right of use of such
intellectual property rights as an absolute owner.
8.3 Licensed software: In respect of any Software not developed internally,
purchased or commissioned, the Settlement System Administrator shall
ensure that it has a fully transferable licence to use the Software,
together with (unless the Executive Committee otherwise notifies the
Settlement System Administrator) suitable escrow arrangements for any
Software for which the source code and full documentation has not been
provided or which is not freely available. No further fees shall be
payable in respect of any transfer of the licence to any nominated
representative of the Executive Committee under Section 21, except to
the extent that the licensor may continue to charge the same licence
fees to the transferee.
8.4 Third party maintenance: Except in circumstances beyond the Settlement
System Administrator's control, the SSA System shall be fully
maintained, by third party maintenance organisations to the extent that
the Software is not developed internally, and the SSA System shall be
fully documented so that it can be operated by any successor to the
Settlement System Administrator. The Settlement System Administrator
shall promptly notify the Executive Committee upon the Settlement
System Administrator becoming aware that the SSA System will cease to
be maintained by such a third party maintenance organisation.
8.5 SSA System changes: The Settlement System Administrator shall be free
to make any changes to the SSA System, except to the extent that (a)
the modification necessitates any change to the Developed Application
Software or Licensed Application Software, or (b) it detrimentally
affects the operation of the Settlement System.
8.6 Maintenance of the SSA System Software: Without prejudice to Section
10, in respect of any Software related to the SSA System which is
written, commissioned or customised by the Settlement System
Administrator, the Settlement System Administrator shall maintain
support for, and where necessary fix any bugs in, such Software from
the Termination Date until the expiry of the Post-Termination Period,
if any, and the costs of maintaining that support and fixing the bugs
shall be as agreed between the Settlement System Administrator and the
Contract Manager and shall be recovered in accordance with the Charging
Procedure.
8.7 Notification of commercial use: The Settlement System Administrator
shall promptly notify the Executive Committee if it uses the Software
for a purpose other than that envisaged under the SSA Arrangements,
including its sale, licence, development or otherwise being made
available howsoever to any other person with such details as the
Executive Committee may reasonably request.
9. SOFTWARE
9.1 Definitions: In this Section 9:-
"Developed Application Software" means those computer programs and
codes described in the Contract Management Rules from time to time and
all copyright and other intellectual property rights therein and all
documents and materials forming part thereof or relating thereto; and
"Licensed Application Software" means those computer programs and codes
described in the Contract Management Rules from time to time.
9.2 Representations and Warranties:
9.2.1 The Settlement System Administrator represents, warrants and
undertakes to the other Parties as a continuing obligation and
the other Parties acknowledge that:-
(a) the Settlement System Administrator has, and for so
long as it remains the Settlement System Administrator
will have, unencumbered and freely transferable title
to Developed Application Software;
(b) the Licensed Application Software is, and for so long
as the Settlement System Administrator remains as such
will remain, the subject of a non-exclusive licence in
favour of the Settlement System Administrator
transferable to its successor Settlement System
Administrator; and
(c) the Settlement System Administrator undertakes to use
all reasonable endeavours to:-
(i) assign or novate, or procure the assignment
or novation, of any licence for Licensed
Application Software to the successor
Settlement System Administrator as soon as is
reasonably practicable and to obtain any
consent necessary for that purpose; or
(ii) procure the grant by the relevant licensor to
the successor Settlement System Administrator
of a licence in respect of Licensed
Application Software as soon as is reasonably
practicable,
so that the licence held by the successor Settlement
System Administrator is on terms no less favourable to
it than the terms of the licence held by the
Settlement System Administrator and without payment of
a fee by Pool Members or the successor Settlement
System Administrator (except to the extent that the
licensor may continue to charge the same licence fee
to the transferee).
9.2.2 Pool Members confirm and agree (i) that they have no objection
to the intellectual property rights referred to in paragraph
8.2(a) above being held in this way and (ii) that, as between
the Settlement System Administrator and Pool Members, the
Settlement System Administrator shall have the right of use of
such intellectual property rights as an absolute owner.
10. MAINTENANCE ARRANGEMENTS
Maintenance arrangements: The Settlement System Administrator shall:-
(a) ensure that at all times it has in full force and effect
proper arrangements for the maintenance of (and the prompt
rectification of defects in) the Hardware and Software
provided that in relation to Developed Application Software
such maintenance shall not be required to extend beyond the
implementation of a corrective procedure or a remedy to such
Software to allow for the continued running of such Software
in accordance with its specification;
(b) upon reasonable request of the Executive Committee, confirm to
the Executive Committee in writing the existence of such
maintenance arrangements in respect of the Hardware and the
SSA System; and
(c) upon reasonable request of the Executive Committee, supply
evidence reasonably satisfactory to the Executive Committee of
the existence and nature of such maintenance arrangements in
respect of the Developed Application Software and the Licensed
Application Software.
11. AUDIT ACCESS
Access:
11.1 The Settlement System Administrator shall:-
(a) permit the Pool Auditor unrestricted access to the
Settlement System, the Hardware and the Software and
all data used, information held and records kept by
the Settlement System Administrator or its agent or
sub-contractors in operating the Settlement System;
(b) use reasonable endeavours to procure that each Second
Tier Agent, each Second Tier Agent's agent (if any)
and each Second Tier Agent's sub-contractor (if any)
permits the Pool Auditor unrestricted access to the
Second Tier Hardware and Second Tier Software, to its
agency or sub-contracting operations and to all data
used, information held and records kept by each such
Second Tier Agent, Second Tier Agent's agent and/or
Second Tier Agent's sub-contractor;
(c) make available members of its staff to explain the
operation of the Settlement System and such other
issues as the Pool Auditor considers relevant; and
(d) use reasonable endeavours to procure that each Second
Tier Agent, each Second Tier Agent's agent (if any)
and each Second Tier Agent's sub-contractor (if any)
makes available members of its staff to explain its
operation of its agency or sub-contracting operations,
the Second Tier Hardware and the Second Tier Software
and such other issues as the Pool Auditor considers
relevant.
11.2 ESIS in its capacity as Settlement System Administrator shall
procure that, in addition to ESIS's auditor auditing the
annual accounts of ESIS for a particular financial year, that
auditor shall report in writing to the Executive Committee the
Gross Margin for that financial year and shall deliver that
report to the Executive Committee no later than the date upon
which such annual accounts are laid before ESIS in general
meeting or otherwise published or issued (if earlier).
11.3 The Settlement System Administrator shall permit an auditor
appointed by the Executive Committee access to the operations
and business of the Settlement System Administrator to confirm
that the quality management procedures and billing practices
applied by the Settlement System Administrator under the terms
of the SSA Arrangements are being complied with. The terms of
reference for each such audit will be agreed by the auditor
with ESIS, such agreement not to be unreasonably withheld.
12. INSURANCE RESPONSIBILITIES
12.1 Insurance requirements: Subject to the availability in the insurance
market of such insurances, the Settlement System Administrator shall
effect and maintain in full force and effect with first class insurers
the following insurances:-
12.1.1 insurance with respect to (a) physical loss or damage to each
of the Hardware (including Second Tier Hardware) and Software
(including Second Tier Software) and (b) corruption of the
Software (including Second Tier Software) and related computer
data, in each case in an amount equivalent to its replacement
cost, except, with effect from 1st April, 1994, insofar as
concerns any Second Tier Hardware and Second Tier Software
owned and/or operated by any particular Second Tier Agent
where such Second Tier Agent has agreed with the Settlement
System Administrator substantially to the effect, inter alia,
that:-
(a) the Second Tier Agent will effect and maintain in full
force and effect with first class insurers insurance
with respect to (i) physical loss or damage to each of
such Second Tier Hardware and Second Tier Software and
(ii) corruption of such Second Tier Software and
related computer data, in each case in an amount
equivalent to its correction cost;
(b) the Second Tier Agent shall promptly on request
provide to the Settlement System Administrator an
insurance broker's certificate having a form and
content as specified in sub-section 12.3 and evidence
that the Second Tier Agent has paid the relevant
premiums; and
(c) if the Second Tier Agent has not so insured and paid
the relevant premiums the Settlement System
Administrator shall, on behalf of the Second Tier
Agent, take out such insurance and pay such premiums
and recover the cost of the same from the Second Tier
Agent; and
provided that, in the case of (c) above, where:-
(i) the Settlement System Administrator is aware that the
Second Tier Agent has not so insured in accordance with
(a) above; and
(ii) a period of fourteen days since the Settlement System
Administrator first became aware that the Second Tier
Agent had not insured in accordance with (a) above has
elapsed, during which period the Second Tier Agent has
not so insured in accordance with (a) above,
the Settlement System Administrator shall so take out such
insurance in the name of such Second Tier Agent unless, after
having sought, to the extent that it is able, such information
from the Second Tier Agent as is necessary for the purposes of
obtaining such insurance, it has failed to obtain such
information; and
12.1.2 professional indemnity insurance as Settlement System
Administrator in an amount of not less than (pound)20,000,000
any one claim and (pound)20,000,000 all claims in any one year
(or such greater amount as may from time to time be reasonably
required by the Executive Committee after consultation with
the Settlement System Administrator or such lesser amount as
may from time to time be agreed between the Executive
Committee and the Settlement System Administrator).
12.2 Application of proceeds: The Settlement System Administrator shall use
all reasonable endeavours:-
(a) in the case of insurance referred to above where it is the insured to
make and collect claims promptly; and
(b) in the case of insurance where its Second Tier Agent is the insured,
to procure that such Second Tier Agent makes and collects claims
promptly,
and shall apply and, as appropriate, shall procure that its Second Tier
Agent applies, all moneys so received by it in respect of the insurance
referred to in this Section 12 in or towards making good the loss and
fully repairing the damage or (as the case may be) satisfying the
relevant liability in respect of which such moneys were receivable or
reimbursing the cost of the same.
12.3 Information requirements: The Settlement System Administrator shall
promptly supply the Executive Committee upon request from time to time
with an insurance broker's certificate in form and content reasonably
satisfactory to the Executive Committee confirming that cover has been
effected, whether by it or its Second Tier Agent, in respect of the
insurance referred to in sub-section 12.1 and giving reasonable details
of the terms and conditions of such insurance.
12.4 Default: If the Settlement System Administrator shall default in the
performance of its obligations under this Section 12, the Executive
Committee shall have the right (but shall not be obliged) to make the
appropriate insurance arrangements and shall have the right to recover
from the Settlement System Administrator any costs incurred (including
any handling fee).
12.5 Change in insurance requirements:
12.5.1 If at the request of the Executive Committee the sums insured
under the Settlement System Administrator's professional
indemnity insurance are increased, the amount of any resultant
increase in the insurance premium shall be recovered by the
Settlement System Administrator (assuming that it has borne
the same) in accordance with the Charging Procedure.
12.5.2 If at the request of the Executive Committee the amount of the
excess or deductible under the Settlement System Administrator's
professional indemnity insurance is increased and there is a
resultant decrease in the insurance premium payable, the amount
of such decrease shall be reimbursed by the Settlement System
Administrator to Pool Members under the Charging Procedure
(assuming that Pool Members have already paid the Settlement
System Administrator on the basis of a higher premium) provided
that in the event of a claim against the Settlement System
Administrator in respect of which a payment is or (but for such
increase in the excess or deductible) would have been made to the
Settlement System Administrator under its professional indemnity
insurance Pool Members shall be required themselves to bear in
aggregate the first part of any such claim up to the amount of
such increased excess or deductible and in satisfaction of that
obligation shall reimburse the same to the Settlement System
Administrator in accordance with the Charging Procedure.
12.5.3 If in any other case the sums insured under the Settlement
System Administrator's professional indemnity insurance are
changed from the amounts referred to in paragraph 12.5.1 or
the amount of the excess or deductible thereunder is changed
from the amount referred to in paragraph 12.5.2, any resultant
increase in the insurance premium payable shall be for the
Settlement System Administrator's own account and shall not be
recoverable by it from the other Parties.
13. TERMINATION OF THE APPOINTMENT OF ESIS
13.1 Termination: The appointment of ESIS as Settlement System
Administrator may be terminated either by the resignation of ESIS
in accordance with Section 14 or by the removal of ESIS in
accordance with Section 15, 16 or 17.
13.2 Termination pursuant to Clause 67.4: If this Agreement is
terminated pursuant to Clause 67.4 then:-
(a) if the effective date of termination of this Agreement is
after 31st March, 1999, the Termination Date shall be deemed
for the purposes of allocating costs between ESIS and Pool
Members to be 31st March, 1999 and the provisions of Section
23 shall apply; and
(b) if the effective date of termination of this Agreement is on
or before 31st March, 1999, the Termination Date shall be
deemed for the purposes of allocating costs between ESIS and
Pool Members to be 31st March, 1999 and the provisions of
Section 24 shall apply.
14. RESIGNATION BY ESIS
Resignation procedure: After consultation between the Settlement System
Administrator and the Executive Committee and the Director having given
his prior written consent ESIS may give 12 months' notice in writing
(the "Resignation Notice") to the Executive Committee (which shall
forthwith notify all Pool Members) and the Director of its intention to
resign as Settlement System Administrator on a date (in this Section
14, the "Termination Date") not earlier than 1st April, 1999 and,
subject to Section 20, the appointment of ESIS as Settlement System
Administrator shall terminate on the Termination Date.
15. REMOVAL OF ESIS AFTER 31ST MARCH, 1999
Removal procedure: After consultation between the Settlement System
Administrator and the Executive Committee ESIS may be removed as
Settlement System Administrator at any time after 31st March, 1999
where:-
(a) a resolution of the Pool Members in general meeting resolving to
remove ESIS as Settlement System Administrator has been passed by either:-
(i) Pool Members holding not less than 80 per cent. of the
Total Votes of Pool Members who are entitled to vote
in person or by proxy at a general meeting of Pool
Members or deemed effective pursuant to Clause 13.5;
or
(ii) Pool Members holding less than 80 per cent. of the
Total Votes of Pool Members who are entitled to vote
in person or by proxy at a general meeting of Pool
Members, but only where there is no more than one
dissentient Pool Member;
(b) the Director has given his prior written consent in the light of
the resolution passed in accordance with paragraph (a) above; and
(c) the Executive Committee has given the Settlement System
Administrator after such resolution has been passed or deemed
effective (which the Executive Committee shall promptly do) 12
months' notice in writing (in this Section 15, the "Removal
Notice") of such removal (or such longer period of notice as
the Director may determine in response to the application made
to him for the purposes of paragraph (b) above) to take effect
on the date being no earlier than 1st April, 1999 specified in
the Removal Notice (in this Section 15, the "Termination
Date") and, subject to Section 20, the appointment of ESIS as
Settlement System Administrator shall terminate on the
Termination Date.
16. REMOVAL OF ESIS ON OR BEFORE 31ST MARCH, 1999
Removal procedure: After consultation between the Settlement System
Administrator and the Executive Committee ESIS may be removed as
Settlement System Administrator at any time on or before 31st March,
1999 where:-
(a) a resolution of the Pool Members in general meeting resolving to
remove ESIS as Settlement System Administrator has been passed by either:-
(i) Pool Members holding not less than 80 per cent. of the
Total Votes of Pool Members who are entitled to vote
in person or by proxy at a general meeting of Pool
Members or deemed effective pursuant to Clause 13.5;
or
(ii) Pool Members holding less than 80 per cent. of the
Total Votes of Pool Members who are entitled to vote
in person or by proxy at a general meeting of Pool
Members, but only where there is no more than one
dissentient Pool Member;
(b) the Director has given his prior written consent in the light of
the resolution passed in accordance with sub-paragraph (a) above; and
(c) the Executive Committee has given the Settlement System
Administrator after such resolution has been passed or deemed
effective (which the Executive Committee shall promptly do) 12
months' notice in writing (in this Section 16, the "Removal
Notice") of such removal (or such longer period of notice as
the Director may determine in response to the application made
to him for the purposes of paragraph (b) above) to take effect
on the date falling before 1st April, 1999 specified in the
Removal Notice (in this Section 16, the "Termination Date")
and, subject to Section 20, the appointment of ESIS as
Settlement System Administrator shall terminate on the
Termination Date.
17. REMOVAL OF ESIS
17.1 Breach of obligations capable of remedy: If the Settlement System
Administrator fails in any persistent, material respect or in any
single, major respect to perform or comply with any of the obligations
expressed to be assumed by it under the SSA Arrangements and such
failure, in the reasonable opinion of the Executive Committee, is
capable of remedy, the Executive Committee shall have the right to give
notice in writing (the "Remediable Removal Notice") to the Settlement
System Administrator giving details of the relevant failure and
requiring that such failure be remedied within 30 days (or such longer
period as may be necessary but in any event within 90 days or any
longer period as may be reasonable and agreed between the Settlement
System Administrator and the Executive Committee) from the date of
receipt by the Settlement System Administrator of the Remediable
Removal Notice and, if a longer period is reasonable, that within 30
days from the said date of receipt the Settlement System Administrator
agree a timetable with the Executive Committee for the remedy of such
failure (such agreement not to be unreasonably withheld).
17.2 Breach of obligations incapable of remedy: If the Settlement System
Administrator fails in any persistent, material respect or in any
single, major respect to perform or comply with any of the obligations
expressed to be assumed by it under the SSA Arrangements and such
failure, in the reasonable opinion of the Executive Committee, is
incapable of remedy, the Executive Committee shall have the right to
give notice in writing (in this sub-section 17.2, the "Irremediable
Removal Notice") to the Settlement System Administrator giving details
of the relevant failure and stating that, in the reasonable opinion of
the Executive Committee, the Settlement System Administrator is in
breach of the terms of the SSA Arrangements and such breach is
incapable of remedy.
17.3 Insolvency: If the Settlement System Administrator:-
(a) is unable to pay its debts (within the meaning of section
123(1) or (2) of the Insolvency Act 1986, but subject as
hereinafter provided in this sub-section 17.3) or if any
voluntary agreement is proposed in relation to it under
section 1 of that Act or if the Settlement System
Administrator enters into any scheme of arrangement (other
than for the purpose of reconstruction or amalgamation upon
terms and within such period as may previously have been
approved in writing by the Executive Committee); or
(b) has a receiver (which expression shall include an administrative
receiver within the meaning of section 29 of the Insolvency Act
1986) of the whole or any material part of its assets or
undertaking appointed; or
(c) has an administration order under section 8 of the Insolvency Act
1986 made in relation to it; or
(d) passes any resolution for winding-up other than a resolution
previously approved in writing by the Executive Committee; or
(e) becomes subject to an order by the High Court for winding-up,
the Executive Committee shall have the right to give notice in writing
(in this sub-section 17.3, the "Irremediable Removal Notice") to the
Settlement System Administrator referring to such event.
For the purposes of paragraph (a) above section 123(1)(a) of the
Insolvency Act 1986 shall have effect as if for "(pound)750" there were
substituted "(pound)250,000" and, further, the Settlement System
Administrator shall not be deemed to be unable to pay its debts for the
purposes of paragraph (a) above if any such demand as is mentioned in
the said section is being contested in good faith by the Settlement
System Administrator with recourse to all appropriate measures and
procedures.
17.4 Change of Status: If ESIS ceases to be a wholly-owned subsidiary of NGC
then, subject to the prior written consent of the Director having been
obtained, the Executive Committee shall have the right to give notice
in writing (in this sub-section 17.4, the "Irremediable Removal
Notice") to the Settlement System Administrator referring to such
event.
17.5 Removal Procedure: Subject to:-
(a) the Executive Committee having given the Settlement System
Administrator a Remediable Removal Notice, and either the
Settlement System Administrator having been unwilling or
unable to remedy the failure within 30 days from the date of
receipt of the Remediable Removal Notice (or such longer
period as may be permitted under sub-section 17.1) or, as the
case may be, within the period provided in the timetable
agreed with the Executive Committee for the remedy of such
failure; or
(b) the Executive Committee having given the Settlement System
Administrator an Irremediable Removal Notice,
ESIS may be removed as Settlement System Administrator where:-
(i) a resolution of the Pool Members in general meeting resolving to
remove ESIS as Settlement System Administrator has been passed by either:-
(a) Pool Members holding not less than 80 per cent. of the
Total Votes of Pool Members who are entitled to vote
in person or by proxy at a general meeting of Pool
Members or deemed effective pursuant to Clause 13.5;
or
(b) Pool Members holding less than 80 per cent. of the
Total Votes of Pool Members who are entitled to vote
in person or by proxy at a general meeting of Pool
Members, but only where there is no more than one
dissentient Pool Member;
(ii) the Director has given his prior written consent in the light of
the resolution passed in accordance with sub-paragraph (i) above; and
(iii) the Executive Committee has given the Settlement System
Administrator after such resolution has been passed or deemed
effective (which the Executive Committee shall promptly do) 12
months' notice in writing (in this Section 17, the "Removal
Notice") of such removal to take effect on the date specified
in the Removal Notice (in this Section 17, the "Termination
Date") and, subject to Section 20, the appointment of ESIS as
Settlement System Administrator shall terminate on the
Termination Date.
18. POWERS OF EXECUTIVE COMMITTEE ON RESIGNATION AND REMOVAL
Executive Committee Powers: At any time and from time to time on or
after a Resignation Notice or a Removal Notice has been given by or on
behalf of the Executive Committee to the Settlement System
Administrator, the Executive Committee shall have the right:-
(a) subject to all security, safety and operational constraints of
the Settlement System Administrator current at the time the
Resignation Notice or (as the case may be) the Removal Notice
is given, to enter (and any third party reasonably nominated
by the Executive Committee shall have the right to enter) upon
reasonable notice any premises where the Settlement System
Administrator performs any of its functions relating to the
Settlement System to inspect any aspect of the Settlement
System, to ensure maintenance of service levels and to
facilitate the transfer of service, responsibilities and
assets pursuant to Section 21; and
(b) on such reasonable basis as may be agreed with the Settlement
System Administrator (such agreement not to be unreasonably
withheld), to communicate with and consult such of the
Settlement System Administrator's staff as are available as
the Executive Committee reasonably considers to be essential
to the Settlement System for a period up to 12 months
following the Termination Date.
19. APPOINTMENT OF SUCCESSOR SETTLEMENT SYSTEM ADMINISTRATOR
19.1 Approval of the Director: The Parties undertake with each other
that no successor Settlement System Administrator shall be
appointed without the written approval of the Director first
having been obtained.
19.2 Discharge: With effect from the Termination Date ESIS in its capacity
as Settlement System Administrator shall (save as provided in
sub-sections 5.4, 8.6, 12.2, 20.2 and Section 21 and save as regards
any rights and liabilities accrued as at the date of its retirement or
removal) be discharged from any further obligation and shall have no
further rights under the SSA Arrangements but shall remain entitled to
the benefit of the provisions of sub-sections 4.3 to 4.9 (inclusive)
and any other provision of this Agreement providing for an indemnity or
the payment of other costs or charges in favour of the Settlement
System Administrator, and its successor and (save as provided in this
sub-section 19.2) each of the other Parties shall have the same rights
and obligations amongst themselves as they would have had if such
successor had been a party to this Agreement in place of ESIS as
Settlement System Administrator.
20. CONTINUATION OF SERVICES
20.1 Continuation of Services: Subject to sub-section 20.5, the Executive
Committee shall have the right to postpone the Termination Date beyond
its original date on a maximum of four occasions and, on each occasion,
for a period of three months (each an "Extension Period") and ESIS
agrees to continue to act as Settlement System Administrator for the
duration of each Extension Period. The Executive Committee shall
exercise such right by written notice to the Settlement System
Administrator specifying the duration of each Extension Period (each an
"Extension Notice"), and the Termination Date shall thereupon be
postponed to the last day of the then proposed Extension Period.
20.2 Post-Termination Services: The Contract Manager may, by placing an
Order, request the Settlement System Administrator to provide such
training and support services as are set out in the Menu of Consultancy
Services Prices and the Menu of Development Services Prices (each as
defined in the Appendix hereto) as the Executive Committee may
reasonably require for the Post-Termination Period. Any such Order
shall specify the length of time for which such services are required.
Subject to sub-section 20.4, the Settlement System Administrator shall
be entitled to charge for such services in accordance with the Menu of
Prices current immediately prior to the Termination Date (subject to
indexation in accordance with the terms of the Appendix hereto) but
shall only be required to provide such services to the extent that the
resources are at the time employed by ESIS or were formerly employed by
ESIS and are at the time employed within the NGC group of companies.
20.3 Extension Period Charges: The Settlement System Administrator
shall have the right to charge for Services rendered during the
Extension Period in accordance with Section 1 of Part H of the
Appendix hereto.
20.4 Post-Termination Period Charges: The Settlement System Administrator
shall charge only a nominal sum (being not more than (pound)100 in the
aggregate) for such training and support services rendered in
accordance with sub-section 20.2 where the Termination Date is
referable to a Resignation Notice given by ESIS pursuant to Section 14
or a Removal Notice given by the Executive Committee pursuant to
Section 17.
20.5 Two year limit: Notwithstanding any other provision of this Agreement,
the Executive Committee shall not be entitled to require ESIS to remain
appointed as Settlement System Administrator after the date falling 24
months after the date on which:-
(a) the Settlement System Administrator gives the Executive Committee
a Resignation Notice; or (as the case may be)
(b) the Executive Committee gives the Settlement System Administrator
a Removal Notice.
20.6 Full force and effect: All the provisions of this Schedule and the
Appendix hereto shall remain in full force and effect for the duration
of the Extension Period (if any) and the Post-Termination Period (if
any) to the extent necessary to give effect to the terms of this
Section 20.
21. TRANSFER OF SERVICES, RESPONSIBILITIES AND ASSETS
21.1 Transfer of services, responsibilities and assets: Upon a
successor Settlement System Administrator being appointed under
Section 19 and accepting such appointment ESIS in its capacity as
outgoing Settlement System Administrator shall:-
(a) grant to a nominee of the Pool Members (who may be the
successor Settlement System Administrator) an unrestricted,
non-exclusive, perpetual and transferable licence of all
Software, all related documentation and other similar
intellectual property belonging to the outgoing Settlement
System Administrator free of charge, to use, copy, adapt and
translate such Software and other property for any purpose
related to the operation of the Settlement System;
(b) use all reasonable endeavours to novate, or procure the
novation of, any licence or other agreement to use and/or
maintain the Software to such successor;
(c) transfer to such successor all Hardware belonging to the
outgoing Settlement System Administrator and essential to such
successor to carry out such successor's duties and
responsibilities under the SSA Arrangements and which is not
otherwise readily obtainable by such successor;
(d) make over to such successor copies of all such records,
manuals and data and other information not referred to in
paragraph 21.1(a) and in the ownership or under the control of
the outgoing Settlement System Administrator and relating to
the operation, and necessary for the proper functioning of the
Settlement System; and
(e) without prejudice to the foregoing provisions of this Section
21, transfer or otherwise make available to such successor all
assets (excluding freehold and leasehold property), equipment,
facilities, rights, know-how and transitional assistance which
it possesses and which is necessary for such successor to have
to operate the Settlement System in accordance with the SSA
Arrangements and which is not otherwise readily obtainable by
such successor,
in each case on such reasonable terms (other than as to consideration)
as may be agreed between ESIS, such successor and the Executive
Committee (and, in default of agreement, the dispute shall be referred
to arbitration in accordance with Clause 83) and in consideration of
the payment of such sums as are referred to in sub-section 21.2. ESIS
further agrees, in consideration of the payment of such sums as are
referred to in sub-section 21.2, to co-operate with any such successor
and the Executive Committee so that the transfer of duties, services,
responsibilities, assets and know-how to such successor is carried out
causing as little disruption to the operation of the Settlement System
and inconvenience to the Parties as is practical in all the
circumstances.
21.2 Asset Transfer Costs:
21.2.1 The consideration referred to in sub-section 21.1 is:-
(a) in respect of:-
(i) the right to use all Software, related
documentation and other similar intellectual
property referred to in paragraph 21.1(a), a
peppercorn rental;
(ii) all Hardware referred to in paragraph 21.1(c),
the fair market value of the same as at the date of transfer; and
(iii) the copies referred to in paragraph 21.1(d), the
cost to the outgoing Settlement System Administrator of making such copies;
(b) in respect of:-
(i) charges to Pool Members which the Executive
Committee has expressly requested ESIS in its
capacity as Settlement System Administrator
to defer and the Deferred Settlement Project
Expenditure, the principal amount deferred
and any interest due and outstanding on that
principal amount and all other amounts
payable in discharging any financing
arrangements undertaken in relation to such
deferred expenditure provided that in the
case of Deferred Settlement Project
Expenditure the consideration shall be the
net book value of the Software at that date;
and
(ii) the co-operation referred to in the last
sentence of sub-section 21.1 and such other
matters as are within sub-section 21.1 (other
than those in paragraph 21.1(b) for which
there shall be no charge made) but not
paragraphs (a) or (b)(i) or (ii) above, a
nominal amount only in respect of the
co-operation (with no additional charge for
matters such as management time expended) and
otherwise at fair market value.
21.2.2 Any payment made by all or any of the Pool Members to ESIS in
its capacity as outgoing Settlement System Administrator under
this Section 21 shall be without prejudice to any rights and
remedies which the Pool Members (or any of them) may have
against ESIS as Settlement System Administrator arising under
the SSA Arrangements.
21.3 Transition services: During the period from the date of the Removal
Notice or, as the case may be, the Resignation Notice to the
Termination Date or, as the case may be, the last day of the
Post-Termination Period, the Contract Manager may give the outgoing
Settlement System Administrator an Order requesting the outgoing
Settlement System Administrator to:-
(a) provide training and systems support for the successor Settlement
System Administrator;
(b) provide parallel running with the successor Settlement System
Administrator;
(c) move, relocate or hand over to the successor Settlement System
Administrator the property it is required to transfer pursuant to
paragraphs 21.1(a) to 21.1(e) (inclusive);
(d) supply to the successor Settlement System Administrator
procedural or practice documentation not already recorded in
writing; and
(e) provide employees to attend upon the successor Settlement System
Administrator for all or any of the purposes referred to in
paragraphs (a), (b) or (c) above.
21.4 Disputes: Any dispute arising under or in connection with this Section 21
shall be referred to arbitration in accordance with Clause 83.
22. ALLOCATION OF COSTS ON RESIGNATION
Allocation of costs on resignation: Subject to Section 28(b), if the
appointment of ESIS as Settlement System Administrator shall be
terminated by the resignation of ESIS in accordance with Section 14:-
(a) the Pool Members shall reimburse ESIS the Pool Agreed Liabilities; and
(b) ESIS shall be responsible for, and shall not have recourse to any Pool
Member for all or any part of:-
(i) the Transition Costs (and shall refund to Pool Members in accordance
with sub-section 2.7 of Part J of the Appendix hereto any sums already
received by ESIS on that account); and
(ii) the Outstanding Liabilities; and
(c) the liability of Pool Members for the payment of charges for
the provision of Services up to the Termination Date and
during the Post-Termination Period shall be as set out
elsewhere in this Schedule and the Appendix hereto.
23. ALLOCATION OF COSTS ON REMOVAL AFTER 31ST MARCH, 1999
Allocation of costs on removal: Subject to Section 28(b), if the
appointment of ESIS as Settlement System Administrator shall be
terminated by the removal of ESIS in accordance with Section 15:-
(a) the Pool Members shall reimburse ESIS the Pool Agreed
Liabilities;
(b) ESIS shall be responsible for, and shall not have recourse
to any Pool Member for all or any part of, the Outstanding
Liabilities; and
(c) the liability of Pool Members for the payment of charges for
the provision of Services up to the Termination Date and
during the Post-Termination Period shall be as set out
elsewhere in this Schedule and the Appendix hereto.
24. ALLOCATION OF COSTS ON REMOVAL ON OR BEFORE 31ST MARCH, 1999
Allocation of costs on removal: If the appointment of ESIS as
Settlement System Administrator shall be terminated by the removal of
ESIS in accordance with Section 16:-
(a) the Pool Members shall reimburse ESIS:-
(i) the Pool Agreed Liabilities;
(ii) the Pool Apportioned Outstanding Liabilities; and
(iii) the Compensation;
(b) ESIS shall be responsible for, and shall not have recourse to
any Pool Member for all or any part of, the SSA Apportioned
Outstanding Liabilities; and
(c) the liability of Pool Members for the payment of charges for
the provision of Services up to the Termination Date and
during the Post-Termination Period shall be as set out
elsewhere in this Schedule and the Appendix hereto.
ESIS shall take all reasonable steps and shall otherwise use all
reasonable endeavours to mitigate the Pool Apportioned Outstanding Liabilities.
25. ALLOCATION OF COSTS ON REMOVAL
Allocation of costs on removal: Subject to Section 28(b), if the
appointment of ESIS as Settlement System Administrator shall be
terminated by the removal of ESIS in accordance with Section 17:-
(a) the Pool Members shall reimburse ESIS the Pool Agreed
Liabilities; and
(b) ESIS shall be responsible for, and shall not have recourse
to any Pool Member for all or any part of:-
(i) the Transition Costs (and shall refund to Pool Members
in accordance with sub-section 2.7 of Part J of the
Appendix hereto any sums already received by ESIS on
that account);
(ii) the Outstanding Liabilities;
(c) the liability of Pool Members for the payment of charges for the
provision of Services up to the Termination Date and during the
Post-Termination Period shall be as set out elsewhere in this
Schedule and the Appendix hereto.
26. REIMBURSEMENT BY POOL MEMBERS
Reimbursement by Pool Members: In respect of any sum to be reimbursed
by Pool Members to the Settlement System Administrator pursuant
to Section 22, 23, 24 or 25:-
(a) ESIS may recover such sum in accordance with sub-paragraph 2.3 of
Part J of the Appendix hereto;
(b) Pool Members shall be liable on a several basis according to
their respective Contributory Shares as at the Termination Date
provided that, if a Pool Member shall fail to pay its
Contributory Share of such sum within 45 days after the due date
for payment therefor, the other Pool Members shall be jointly and
severally liable to pay such unpaid sum (and liable as between
themselves according to their respective Contributory Shares,
calculated on the basis that the Points allocated to the
defaulting Pool Member are disregarded); and
(c) any Pool Member (a "non-paying Pool Member") which fails to
pay its Contributory Share in the circumstances of Section
26(b) shall indemnify and keep indemnified each Pool Member on
demand against all sums properly paid by such Pool Member in
relation to that non-paying Pool Member's Contributory Share
pursuant to Section 26(b).
27. DIRECTOR'S INVOLVEMENT
Director's involvement: If, in giving written consent pursuant to
Section 14, 15(b), 16(b) or 17.5(ii) the Director shall impose
conditions or qualifications which render it impracticable to give
effect to the terms of any of Sections 19 to 26 (inclusive) as written,
ESIS and the Executive Committee shall promptly negotiate in good faith
to agree amendments to the SSA Arrangements (including, if appropriate,
to the charging principles) to give effect to the Director's conditions
or qualifications and, in default of agreement as to such amendments
within six months after the commencement of such negotiations, the
Settlement System Administrator or the Executive Committee or any Pool
Member shall be entitled to refer the dispute to arbitration in
accordance with Clause 83. In the conduct of such negotiations, ESIS
and the Executive Committee shall have regard both to the Menus of
Prices and to the costs which will be incurred by ESIS in continuing to
provide Services to satisfy the Director's conditions or
qualifications, it being understood that, where such costs are properly
incurred, it is the parties' intention that ESIS should be entitled to
recover the same from Pool Members.
28. POOL MEMBER AND EXECUTIVE COMMITTEE BREACHES
Breach by Pool Members and/or Executive Committee: Without prejudice to
Clause 66 if the Pool Members acting collectively, the Executive
Committee, the Contract Manager or the Chief Executive's Office fail,
or any of the same is deemed pursuant to Section 1.2 or Section 29 to
have failed, in any persistent, material respect or in any single,
major respect to perform or comply with any of its or their obligations
under the SSA Arrangements and, if such failure is not capable of
remedy or is capable of remedy, but is not remedied within 30 days from
the date of receipt by the Executive Committee of notice from the
Settlement System Administrator giving details of the relevant failure
and requiring its remedy (or such longer period as may be necessary but
in any event within 90 days or any longer period as may be reasonable
and agreed between the Settlement System Administrator and the
Executive Committee) and, where such reasonable period is longer than
30 days, a timetable for the remedy of such failure is not agreed by
the Executive Committee with the Settlement System Administrator (such
agreement not to be unreasonably withheld) within 30 days from the said
date of receipt, then ESIS may(the prior written consent of the
Director having been obtained):-
(a) give not less than 12 months' notice in writing to the
Executive Committee (which shall forthwith notify all Pool
Members) and the Director of its resignation specifying the
date thereof, and the appointment of ESIS as Settlement System
Administrator shall terminate on that date and the provisions
of Section 24 shall apply as if the appointment of ESIS as
Settlement System Administrator shall have been terminated by
its removal in accordance with Section 16 (but disregarding
for this purpose any requirement to pay Compensation if the
appointment of ESIS as Settlement System Administrator in fact
terminates after 31st March, 1999); or
(b) give notice to all Pool Members, the Executive Committee and
the Chief Executive's Office identifying such irremediable
breach or failure to remedy or agree a timetable for remedy of
a remediable breach and, if at any time after the service of
such notice and while such breach is continuing, the
Settlement System Administrator resigns or is removed pursuant
to Section 14, 15, 16 or 17 then, notwithstanding Sections 22,
23 and 25, the provisions of Section 24 shall apply as if the
appointment of ESIS as Settlement System Administrator shall
have been terminated by its removal in accordance with Section
16 (but disregarding for this purpose any requirement to pay
Compensation if the appointment of ESIS as Settlement System
Administrator in fact terminates after 31st March, 1999).
29. VARIATION OF SERVICE LINES
If the Executive Committee engages a person other than the Settlement
System Administrator to perform a Service contained in a Service Line
or part thereof which is listed in the Sole Supplier Index there shall
be deemed to be a failure by the Executive Committee in a single, major
respect to comply with its obligations under the SSA Arrangements or
the Settlement System Administrator shall be entitled to insist upon
due and proper performance of the SSA Arrangements provided that the
mere variation of any Service Line to a state where no Service is to be
provided or can be Ordered thereunder shall not be deemed to be such a
failure.
30. EXTENSION OF TIME
If performance of the terms of the SSA Arrangements by the Settlement
System Administrator is delayed by reason of the act or default of a
Party or a Meter Operator Party, the Settlement System Administrator
shall be entitled to a reasonable extension of time for performance and
to any reasonable additional costs which it can demonstrate to the
Executive Committee were directly incurred as a result of such delay
provided always and on condition that the Settlement System
Administrator shall notify the Executive Committee in writing within a
reasonable time of the circumstances giving rise to the delay in
performance.
31. CONTRACT MANAGEMENT RULES
31.1 Contract Management Rules: The Parties agree that, whilst the Contract
Management Rules do not constitute or evidence legally binding
obligations, they are indicative of best practice with respect to
certain aspects of the day-to-day operation of the SSA Arrangements and
include practices and procedures which either have been proven or are
expected to facilitate that day-to-day operation. The Parties agree
that a failure by a Party to comply with the Contract Management Rules
shall not of itself constitute a breach of the SSA Arrangements nor
give rise to any sanction against that Party.
31.2 Amendments to the Contract Management Rules: The Contract Management
Rules may be amended, modified or varied by agreement between the
Account Manager and the Contract Manager in accordance with procedures
to be agreed between themselves from time to time.
32. GROSS MARGIN
32.1 Auditor's Report: The Settlement System Administrator shall procure
that its auditor reports to the Executive Committee within one month
after (a) the signature of the Settlement System Administrator's annual
accounts and (b) a Removal Notice being given pursuant to Section 16
the figure that represents the Gross Margin for the financial year in
respect of which such annual accounts have been prepared or (as the
case may be) the twelve month period ending on the date of the Removal
Notice.
32.2 Negotiations:
32.2.1 If, in respect of the SSA Accounting Period to which the
annual accounts referred to in sub-section 32.1 relate, the
Gross Margin expressed as a percentage of the aggregate of the
Total Sums Due for that period is more than 25 per cent. or
less than 15 per cent., Pool Members (acting through the
Executive Committee) or the Settlement System Administrator
may by notice to the other request that the Menus of Prices be
reviewed.
32.2.2 If notice is given as provided in paragraph 32.2.1 above, the
Executive Committee and the Settlement System Administrator
may (but shall not be obliged to) agree to conduct such a
review of the Menus of Prices but if they do so agree and
reach agreement as to the changes in prices, any such price
change shall be effective from the beginning of the SSA
Accounting Period immediately following the SSA Accounting
Period referred to in paragraph 32.2.1 above.
32.2.3 The provisions of this sub-section 32.2 are without prejudice
to any other review or revision of the Menus of Prices
required or permitted pursuant to other provisions of this
Schedule or the Appendix hereto.
33. FORCE MAJEURE
If by reason of Force Majeure the Settlement System Administrator shall
be unable to carry out all or any of its obligations under this
Agreement, the provisions of Clause 74 shall have effect provided that
the Settlement System Administrator shall have the right to recover in
respect of any period of Force Majeure (to the extent that it would not
otherwise have been able to recover by reason of the Force Majeure):-
(a) the standing charge for Consultancy Services referred to in
sub-section 4.1 of Part G of the Appendix hereto time-apportioned
for that period;
(b) the standing charge for Development Services referred to in
sub-section 5.1 of Part G of the Appendix hereto time-apportioned
for that period;
(c) the Monthly Minimum Manpower Charge Commitment referred to in
sub-section 10.1 of Part G of the Appendix hereto (less the sum
of (a) and (b) above) time-apportioned for that period;
(d) to the extent that the sum of (a), (b) and (c) above falls short
of the Minimum Contract Price time-apportioned to that period,
the amount of that shortfall;
(e) Deferred Settlement Project Expenditure;
(f) Third Party Costs invoiced to the Settlement System Administrator
in that period; and
(g) the Suppliers Second Tier Charge time-apportioned for that
period together with any under-recovery and less any
over-recovery on the STSSC Account.
34. CONFIDENTIALITY
Pool Members shall jointly and severally procure that the Executive
Committee, the Chief Executive's Office and the Contract Manager shall
use all reasonable endeavours to preserve the confidentiality of, and
not directly or indirectly reveal, report, publish, disclose or
transfer the Menus of Prices or the Gross Margin, or any part of or any
information contained in or relating to the Menus of Prices or the
Gross Margin (the "Relevant Information") except:-
(a) where the Relevant Information is in the public domain
otherwise than by breach by a Pool Member, the Executive
Committee, the Chief Executive's Office or the Contract
Manager of this Agreement;
(b) to the extent that the Settlement System Administrator gives
its prior consent in writing, it being acknowledged that such
consent has been given for disclosure of the Relevant
Information relating to the Accounting Period beginning on 1st
April, 1994;
(c) to the extent required by law, any Act of Parliament or any
Competent Authority;
(d) to comply with the conditions of any Licence or any document
referred to in the Licence with which the party is required to
comply;
(e) to the Executive Committee's consultants or professional advisers
or to the Pool Auditor; or
(f) to the extent required by any judicial or arbitral process having
jurisdiction over the Pool Members, the Executive Committee, the
Chief Executive's Office or the Contract Manager, as the case may
be,
provided that the Executive Committee and its staff shall be entitled
to keep on display and make available for inspection to (but not
copying by) Pool Members (and to notify Pool Members that there is on
display and available for inspection) at the office of the staff of the
Executive Committee all Relevant Information.
35. NOTICES
Notices: For the purposes of this Schedule 4 and the Appendix hereto,
Clause 75 shall apply as if each of the Account Manager and the
Contract Manager is a Party with the following address and
facsimile number:-
(a) Account Manager: Energy Settlements and Information Services Limited,
Fairham House,
Green Lane,
Clifton,
Nottingham NG11 9LN
Facsimile number: 0115-945 6807;
(b) Contract Manager: The Electricity Pool of England
and Wales,
2nd Floor,
15 Bloomsbury Square,
London WC1A 2LP
Facsimile number: 0171-831 4813
APPENDIX TO SCHEDULE 4
THE SERVICES
CONTENTS
PART A - PRELIMINARY
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
1.2 Interpretation
PART B - THE SERVICES
1. CATEGORIES OF SERVICES
2. PRODUCTION SERVICES
2.1 Production Services
2.2 Types of Production Services
2.3 Continuous Production Services
2.4 Ad Hoc Production Services
2.5 Limits on Production Services
3. CONSULTANCY SERVICES
4. DEVELOPMENT SERVICES
5. NON-MENU SERVICES
6. PRICE ON REQUEST ITEMS
7. SOLE SUPPLIER SERVICES
7.1 Sole Supplier Services
7.2 Status of Sole Supplier Services
7.3 Variations of Sole Supplier Services
7.4 Review of Sole Supplier Index
8. MANAGEMENT OF RESOURCES
9. MARKET TESTS
9.1 Market Tests
9.2 Timing
9.3 Settlement System Administrator's involvement
10. PERFORMANCE IMPROVEMENT PROGRAMMES
10.1 Performance Improvement Programmes
10.2 Close Co-operation
10.3 Cost-benefit Sharing
10.4 Procedure
10.5 Costs of PIPs
10.6 Division of Cost Savings
10.7 Cost Savings by Pool Members
10.8 Non-PIP Modifications
11. CONTRACT REPORTING
PART C - NEW REQUIREMENTS
1. CHANGES TO SERVICES
1.1 Changes to Services
1.2 Negotiation
1.3 Agreed Changes to Services
1.4 Formal documentation
1.5 Addition to Sole Supplier Index
2. PRICE ON REQUEST
2.1 Request for a price
2.2 Basis of the price
2.3 Price on Request
2.4 Amendment Procedure
PART D - VARIATION MECHANICS
1. INDEXATION
1.1 Indexation
1.2 Mechanics
2. VARIATION MENUS
2.1 Variation Menus
2.2 Mechanics
3. RENT COSTS
3.1 Changes in rent
3.2 Mechanics
4. VOLUME CHANGES
4.1 Units of Variation
4.2 Limits
5. STANDING CHARGES
6. MONTHLY MINIMUM MANPOWER CHARGE COMMITMENT
6.1 Monthly Minimum Manpower Charge
Commitment
6.2 Reconciliation
7. MARKET TESTS AND PERFORMANCE IMPROVEMENT PROGRAMMES
8. INCONSISTENCIES IN THE SSA ARRANGEMENTS
PART E - ORDERING SERVICES: GENERAL PROVISIONS
1. GENERAL REQUIREMENT FOR ORDERS
2. EXCEPTIONS TO THE REQUIREMENT FOR ORDERS
3. ISSUING, AND COMPLYING WITH, ORDERS AND REQUESTS
3.1 Entitlement to issue Orders and requests
3.2 Compliance with Orders and requests
3.3 Signature of requests
3.4 Signature of Orders
3.5 Limited delegation
3.6 Criteria for Orders
3.7 Authority of Pool Members, the Executive Committee and the
Chief Executive
4. SETTLEMENT SYSTEM ADMINISTRATOR'S PROTECTIONS
4.1 Recovery of charges
4.2 Compliance with the Director's directions
4.3 Ratification
4.4 Express authority
4.5 Reliance on documents believed genuine
4.6 General meetings
4.7 Exceptions
4.8 Reference to the Director
5. JOB NUMBERS
5.1 Job Numbers
5.2 Extensions to Orders
6. SUPPLEMENTAL PROVISIONS
6.1 Changing resources
6.2 Ordering ethos
6.3 Resource records
6.4 Dedication of resource
6.5 Failure to supply resource
PART F - ORDERING SERVICES: SPECIFIC PROVISIONS
1. ORDERING PRODUCTION SERVICES
1.1 Continuous Production Services
1.2 Volume changes
1.3 Ad Hoc Production Services
2. ORDERING CONSULTANCY SERVICES
2.1 Minimum manpower periods
2.2 Extensions of manpower
2.3 Short Notice Ordering
3. ORDERING DEVELOPMENT SERVICES
3.1 Project Template
3.2 Minimum manpower periods
3.3 Extensions of manpower
3.4 Short Notice Ordering
3.5 Fixed Price
4. ORDERING NON-MENU SERVICES
5. REQUESTS BY DIRECTOR
6. INDIVIDUAL POOL MEMBER REQUESTS
7. THIRD PARTY PROCUREMENT
7.1 Third Party Contract
7.2 Exceptional circumstances
PART G - CHARGES FOR SERVICES: GENERAL PRINCIPLES
1. GENERAL
2. CHARGES FOR PRODUCTION SERVICES
2.1 Continuous Production Services
2.2 Ad Hoc Production Services
3. CHARGES FOR SECOND TIER METERING
3.1 Charges
3.2 Separate Account
3.3 Debits against Account
3.4 Interest
3.5 Over-recovery
4. CHARGES FOR CONSULTANCY SERVICES
4.1 Standing Charge
4.2 Manpower Charges
4.3 Revisions to charges
5. CHARGES FOR DEVELOPMENT SERVICES
5.1 Standing Charge
5.2 Template Charging
5.3 Manpower Charges
5.4 Revisions to Charges
5.5 Fixed Charges
6. CHARGES FOR NON-MENU SERVICES
7. THIRD PARTY PROCUREMENT COSTS
8. POOL DATA CATALOGUE FEES
8.1 Amount of Pool Data Catalogue Fees
8.2 Payment of Pool Data Catalogue Fees
8.3 Disputes
8.4 Interest on non-payment
8.5 Absence of Order
9. SUMMARY OF CHARGES RECOVERABLE
10. MONTHLY MINIMUM MANPOWER CHARGE COMMITMENT
10.1 Monthly recovery
10.2 Reconciliation procedure
11. MINIMUM CONTRACT PRICE
11.1 Annual recovery
11.2 Monthly recovery
11.3 Minimum Contract Price
PART H - CHARGES FOR SERVICES: EXCEPTIONAL ITEMS
1. EXTENSION PERIOD CHARGES
2. BAD DEBTS
3. NEW TAXES OR NEW LEGISLATION
3.1 New Taxes
3.2 New Legislation
4. EXCEPTIONAL ITEMS
5. MARKET TEST COSTS
6. PIP REBATES
PART I - DEFERRED SETTLEMENT PROJECT EXPENDITURE
1. SOFTWARE EXPENDITURE ALREADY CAPITALISED
2. EXISTING WORK IN PROGRESS AS AT APRIL, 1994
3. NEW PROJECTS SINCE APRIL, 1994
PART J - COST RECOVERY
1. CHARGES RECOVERABLE BY THE SETTLEMENT SYSTEM ADMINISTRATOR
2. INVOICING
2.1 Invoice Statement for Prior Charges
2.2 Content of Invoice Statement
2.3 Invoice Statement for Post Charges
2.4 Content of Invoice Statement
2.5 Disputes
2.6 Invoices to Pool Members
2.7 Resignation or removal of the Settlement System
Administrator
3. PAYMENTS
3.1 Payments by Pool Members
3.2 Disputes
3.3 Interest on non-payment
3.4 Payment of charges
4. ALLOCATION OF CHARGES
4.1 Allocation
4.2 New and former Pool Members
PART K - ALLOCATION OF CHARGES
1. THE SETTLEMENT SYSTEM ADMINISTRATOR'S CHARGES
1.1 Payment of Total Sum Due
1.2 Allocation of Total Sum Due
1.3 Prima facie evidence
1.4 Contributory Shares
PART A
PRELIMINARY
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Appendix, except where the context otherwise
requires:-
"Ad Hoc Production Services" means those Production Services
described in sub-section 2.4 of Part B;
"AEI" means, in respect of any SSA Accounting Period, the underlying
percentage increase in earnings over the previous 12 months ending in
the October immediately prior to the start of such SSA Accounting
Period determined by reference to the "Service industries - Divisions
6-9" indicator in the "Average earnings index: all employees: main
industrial sectors" published by HMSO in the Employment Gazette or, if
such index is no longer published in such form or by HMSO, any
replacement or alternative index therefor which is agreed between the
Settlement System Administrator and the Executive Committee to be
appropriate in the circumstances or, if the Settlement System
Administrator and the Executive Committee cannot reach agreement within
a reasonable period of time, the replacement or alternative index
determined by arbitration pursuant to Clause 83 to be appropriate;
"Anticipated Fixed Standing Charges" means (without double counting)
the aggregate of:-
(a) the sum of all charges for (i) all Production Services Ordered
and (ii) all Consultancy Services and Development Services
Ordered at FSC Rates, as at the date of the Removal Notice;
and
(b) the sum of all charges for (i) all Production Services and
(ii) all Consultancy Services and Development Services at FSC
Rates which, taking into account the business plan referred to
in Clause 9.1.6 current at the date of the Removal Notice,
would have been Ordered for delivery in the period from the
Termination Date to 31st March, 1999;
"ASC Rate" means the price for manpower provided in connection with
Consultancy Services and Development Services as set out in the Menu of
Manpower Prices under the title ASC (Additional Standing Charge);
"Average RPI" means, in respect of any SSA Accounting Period, the
percentage increase in retail prices over the previous 12 months ending
in the October immediately prior to the start of such SSA Accounting
Period determined by reference to the "All items" index (excluding,
except in relation to the indexation of the Menu of Second Tier
Metering Prices, mortgage interest) in the Retail Prices Index
published by the Central Statistical Office or, if such index is no
longer published in such form or by the Central Statistical Office, any
replacement or alternative index therefor which is agreed between the
Settlement System Administrator and the Executive Committee to be
appropriate in the circumstances or, if the Settlement System
Administrator and the Executive Committee cannot reach agreement within
a reasonable period of time, the replacement or alternative index
determined by arbitration pursuant to Clause 83 to be appropriate;
"Committed Additional Services Charges" means the sum of all charges
for all Consultancy Services and Development Services Ordered at ASC
Rates as at the date of the Removal Notice;
"Consultancy Services" means the Services described as Consultancy
Services in Section 3 of Part B;
"Continuous Production Services" means those Production Services
described in sub-section 2.3 of Part B;
"Deferred Settlement Project Expenditure" means an amount of that name
which is to be recovered by the Settlement System Administrator as
charges on a deferred basis pursuant to Part I;
"Development Services" means the Services described as Development
Services in Section 4 of Part B;
"FSC Rate" means the price for manpower provided in connection with
Consultancy Services and Development Services as set out in the Menu of
Manpower Prices under the title FSC (Fixed Standing Charge);
"Handling Charge" means, in respect of any item, such amount as when
added to the cost of such item is equal to ten per cent. of the
sum of such amount and such cost;
"Job Number" means a series of alpha-numeric digits relating to an
Order;
"Menu of Consultancy Services Prices" means the most recent document
with that title setting out prices for certain consultancy services
which is in the agreed form or which has been revised pursuant to Part
D;
"Menu of Development Services Prices" means the most recent document
with that title setting out prices for certain development services
which is in the agreed form or which has been revised pursuant to Part
D;
"Menu of Manpower Prices" means the most recent document with that
title setting out prices for manpower which is in the agreed form or
which has been revised pursuant to Part D;
"Menu of Production Services Prices" means the most recent document
with that title setting out prices for certain production services
which is in the agreed form or which has been revised pursuant to Part
D;
"Menus of Prices" means all of:-
(a) the Menu of Consultancy Services Prices;
(b) the Menu of Development Services Prices;
(c) the Menu of Manpower Prices;
(d) the Menu of Production Services Prices (including as an annex
thereto the Menu of Second Tier Metering Prices); and
(e) any other menu of prices in the agreed form;
"Minimum Contract Price" has the meaning given to that expression in
sub-section 11.3 of Part G;
"Monthly Minimum Manpower Charge Commitment" has the meaning given to
that expression in sub-section 6.1 of Part D;
"Non-Menu Services" means the Services referred to in Section 5 of
Part B;
"Order" means a request in the agreed form for Services given by the
Contract Manager to the Account Manager, and "Ordered" and "Ordering"
shall be construed accordingly;
"Post Charges" means those charges in respect of which an invoice
statement is issued pursuant to sub-section 2.3 of Part J;
"Price on Request Items" means the items described as Price on Request
Items in Section 6 of Part B;
"Prior Charges" means those charges in respect of which an invoice
statement is issued pursuant to sub-section 2.1 of Part J;
"Production Services" means the Services described as Production
Services in sub-section 2.1 of Part B;
"Project Template" means a modelling tool in the agreed form which is
used to Order Development Services and which assists in the estimating
and profiling of manpower commitment;
"Rate of Inflation" in respect of any SSA Accounting Period, means:-
(a) in relation to the Menu of Manpower Prices, the AEI; and
(b) in relation to all other Menus of Prices (other than charges
for general depreciation, rent and Deferred Settlement Project
Expenditure to which the Rate of Inflation shall not apply),
the Average RPI (it being acknowledged that, in relation to
Service Line 14 (Second Tier Metering), mortgage interest will
be included in the calculation of Average RPI);
"SCR Rate" means the price for manpower provided in connection with
Consultancy Services and Development Services and set out in the Menu
of Manpower Prices under the title SCR (Standard Contract Rate);
"Services" means the services to be provided by the Settlement System
Administrator pursuant to the SSA Arrangements, the categories of which
are set out in Section 1 of Part B;
"Sole Supplier Index" means the index with that title in the form
agreed by the Settlement System Administrator and the Executive
Committee setting out those Services or parts thereof which are
designated as having sole supplier status, as such index may be amended
or substituted from time to time by written agreement of the Settlement
System Administrator and the Executive Committee;
"Sole Supplier Services" means the Services referred to in sub-section
7.1 of Part B;
"Third Party Contract" has the meaning given to that expression in
Section 7 of Part F;
"Third Party Costs" means costs under a Third Party Contract which are
invoiced to the Settlement System Administrator by the third party and
passed directly through to Pool Members, and shall include those costs
which are expressly stated in this Schedule to be treated as Third
Party Costs;
"Total Sum Due" has the meaning given to that expression in Section 1
of Part J; and
"Variation Menus" means the most recent set of documents of that title
setting out changes in prices for Services which is in the agreed form,
that set comprising as at the date this Schedule takes effect:-
(a) a Continuous Production Services Variation Menu; and
(b) a Manpower Variation Menu.
1.2 Interpretation: In this Appendix:-
(a) except where the context otherwise requires, references to a
particular Part, Section, sub-section or paragraph shall be a
reference to that Part of this Appendix or, as the case may
be, that Section, sub-section or paragraph of the relevant
Part; and
(b) where a notice period in relation to the provision of a
Service begins upon receipt of an Order therefor, such notice
period shall exclude the day upon which the Service is
required to be provided and (if received after 12:00 hours on
any day) the day upon which notice is deemed to be served.
PART B
THE SERVICES
1. CATEGORIES OF SERVICES
Categories of Services: There are four categories of Services, being:-
(a) Production Services;
(b) Consultancy Services;
(c) Development Services; and
(d) Non-Menu Services.
2. PRODUCTION SERVICES
2.1 Production Services: Production Services are those Services described as
Production Services in the Service Lines set out in the Menu of Production
Services Prices.
2.2 Types of Production Services: Production Services are either Continuous
Production Services or Ad Hoc Production Services.
2.3 Continuous Production Services: Continuous Production Services are those
Production Services which the Settlement System Administrator is to provide
on a regular basis as described in the relevant Service Line.
2.4 Ad Hoc Production Services: Ad Hoc Production Services are those Production
Services which the Settlement System Administrator is to provide on an ad
hoc basis as described in the relevant Service Line.
2.5 Limits on Production Services: There are physical constraints on the
Settlement System which are recognised through the maxima set out in
the Menu of Production Services Prices. This Appendix provides in
sub-section 4.2 of Part D how Services are to be Ordered and priced
outside certain maxima and minima limits.
3. CONSULTANCY SERVICES
Consultancy Services are those Services described as Consultancy
Services in the Service Lines set out in the Menu of Consultancy Services
Prices.
4. DEVELOPMENT SERVICES
Development Services are those Services described as Development
Services in the Service Lines set out in the Menu of Development Services
Prices.
5. NON-MENU SERVICES
Non-Menu Services are those Services which (a) are requested by the
Executive Committee or the Contract Manager, or are Ordered, to be
provided by the Settlement System Administrator in its capacity as
Settlement System Administrator, (b) are not included in a Service
Line, and (c) if agreed to be provided, will not be included in a
Service Line or a Menu of Prices but will be provided on stand-alone
terms and conditions and, for the avoidance of doubt, any service or
obligation of the Settlement System Administrator pursuant to the SSA
Arrangements which is not described in a Service Line is a Non-Menu
Service.
6. PRICE ON REQUEST ITEMS
Price on Request Items are those Services designated as Price on
Request in the Service Lines, being services for which there is a
general description in one or more of the Service Lines but for which
there is no corresponding price stated or referred to in any Menu of
Prices and for which the Settlement System Administrator will quote a
price in accordance with Section 2 of Part C and which may or may not
be added to the relevant Menu of Prices.
7. SOLE SUPPLIER SERVICES
7.1 Sole Supplier Services: Those Services or parts thereof which for the time
being and from time to time are listed in the Sole Supplier Index are known
as Sole Supplier Services.
7.2 Status of Sole Supplier Services: Subject to sub-section 7.2 of
Schedule 4, Sole Supplier Services may only be provided by the
Settlement System Administrator. If the Executive Committee shall
engage a person other than the Settlement System Administrator to
perform a Sole Supplier Service, there shall be deemed to be a failure
by the Executive Committee in a single, major respect to comply with
its obligations under the SSA Arrangements for the purposes of Section
28 of Schedule 4 or the Settlement System Administrator shall be
entitled to insist upon due and proper performance by the Executive
Committee of its obligations under the SSA Arrangements.
7.3 Variations of Sole Supplier Services: The Executive Committee shall
have the right to vary the volume of Service under any Sole Supplier
Service to a level where no Service under the relevant Service Line is
capable of being provided or can be Ordered. Exercise of this right
will not constitute a failure or deemed failure by the Executive
Committee to comply with its obligations under the SSA Arrangements.
7.4 Review of Sole Supplier Index: Within a period of six months after 31st
March, 1999 the Settlement System Administrator shall review the Sole
Supplier Index in consultation with the Executive Committee to assess
whether it is appropriate to amend the list of Services which are
designated as Sole Supplier Services. If as a result of that review or
at any other time the Settlement System Administrator and the Executive
Committee shall agree to amend or substitute the list of Services in
whole or in part, the Sole Supplier Index shall be revised accordingly.
8. MANAGEMENT OF RESOURCES
The Settlement System Administrator shall manage and schedule its
resources and the resources available to it as it sees fit. Neither the
Contract Manager nor Pool Members shall be entitled to specify that
particular individuals be provided in relation to Services other than
named project managers pursuant to Service Line 16 (Management
Services), but the Contract Manager and Pool Members shall have the
right to specify skill categories.
9. MARKET TESTS
9.1 Market Tests: The Executive Committee shall have the right to carry out
market tests of the price of Services in accordance with the following
provisions of this Section.
9.2 Timing: Market tests shall be carried out at the request of the Executive
Committee from time to time and shall be conducted by or on behalf of the
Executive Committee.
9.3 Settlement System Administrator's involvement:
(a) If the Executive Committee wishes the Settlement System
Administrator to take account of a market test, then the
Executive Committee shall use its reasonable endeavours to
commission a market test on a "like for like" basis for the
provision of the Service in question (including as to quality,
timeliness and flexibility) from a supplier of equal standing
to the Settlement System Administrator agreed between the
Executive Committee and the Settlement System Administrator
(such agreement not to be unreasonably withheld) and shall
permit the Settlement System Administrator to appraise the
method and results of the market test and to request
clarification of the method and clarification and correction
of the results.
(b) If the market test shall result in an indication that the
Service in question may be obtained at a lower comparable
price from another supplier, the Settlement System
Administrator shall either demonstrate within a reasonable
time why it is unable to adopt the lower comparable price or
accept the results of the market test and forthwith adopt the
lower comparable price.
(c) If the Settlement System Administrator shall seek to
demonstrate why it is unable to adopt the lower comparable
price rather than accept the results of the market test but
the Executive Committee disputes that the Settlement System
Administrator either has done so within a reasonable time as
required by paragraph (b) above or has adequately demonstrated
why it is unable to adopt the lower comparable price, and in
either case should therefore accept the results of the market
test and adopt the lower comparable price, the Executive
Committee may refer the dispute to arbitration in accordance
with Clause 83.
10. PERFORMANCE IMPROVEMENT PROGRAMMES
10.1 Performance Improvement Programmes: The Executive Committee and the
Settlement System Administrator may from time to time agree to conduct
programmes designed to improve the cost-effectiveness of the Services.
All such programmes shall be conducted in accordance with the
principles set out in the following provisions of this Section and the
Settlement System Administrator shall be obliged to participate in all
such programmes.
10.2 Close Co-operation: Performance Improvement Programmes shall require
close co-operation and an exchange of information between the Executive
Committee and the Settlement System Administrator to a greater degree
than is contemplated elsewhere by the terms of this Agreement.
10.3 Cost-benefit Sharing: The purpose of a Performance Improvement
Programme is to yield cost-benefit sharing and any such programme will
involve an analysis of actual costs rather than the prices that are
contained in the Menus of Prices.
10.4 Procedure: The procedure for conducting a Performance Improvement
Programme is set out in the Contract Management Rules.
10.5 Costs of PIPs: The costs of all Performance Improvement Programmes
shall be borne by Pool Members according to their respective
Contributory Shares and shall be recovered in accordance with the
Charging Procedure.
10.6 Division of Cost Savings: If a Performance Improvement Programme shall
demonstrate a saving in all or any of the costs that are incurred by
the Settlement System Administrator in providing the Services, then
that saving shall be shared equally between the Settlement System
Administrator on the one hand and Pool Members on the other hand at
that time and in the manner agreed between the Account Manager and the
Contract Manager from time to time provided that the Pool Members shall
have the right to receive the entire benefit of that saving until such
time as they have received in full through that saving an amount equal
to the costs incurred by them referred to in sub-section 10.5 above.
10.7 Cost Savings by Pool Members: If a Performance Improvement Programme
shall demonstrate a saving in all or any of the costs that are incurred
by Pool Members (other than costs payable to the Settlement System
Administrator under the SSA Arrangements), the relevant Pool Members
shall have the right to the entire benefit of that saving and shall not
be required to share all or any part of that benefit.
10.8 Non-PIP Modifications: The following actions with regard to any Service
provided by the Settlement System Administrator shall not be the
subject of a Performance Improvement Programme and any cost savings
caused by such action shall not be dealt with in accordance with the
principles of the Performance Improvement Programmes:-
(a) a change in the volume and/or frequencies of any Service under
a Service Line within the maximum and minimum limits stated
for that Service in the relevant Menu of Prices;
(b) a change in the level of quality, fault tolerance or security
for a particular Service where the commercial objectives (as
stated in the relevant Service Lines) are not amended in
respect of that change;
(c) replacement of any Hardware or Software in the normal course of
business;
(d) where a Performance Improvement Programme is undertaken in
respect of one or more particular Service Lines, any
concomitant modification to a Service Line which is not the
subject of that particular Performance Improvement Programme;
and
(e) where the Settlement System Administrator discovers that,
through its own efforts, it has performed Services in a more
efficient manner than it originally planned.
11. CONTRACT REPORTING
Reports: The Settlement System Administrator shall provide the Contract
Manager with reports in accordance with Service Line 10 (Service to CEO
and Pool Members).
PART C
NEW REQUIREMENTS
1. CHANGES TO SERVICES
1.1 Changes to Services: Without prejudice to Parties' rights
generally to amend this Agreement, the Contract Manager may from
time to time request the Settlement System Administrator:-
(a) to provide a new Service; or
(b) to amend a Service currently included in a Service Line or to amend
a Non-Menu Service; or
(c) to delete a Service currently included in a Service Line.
1.2 Negotiation: Upon receipt of any such request the Account Manager will
negotiate in good faith with the Contract Manager to amend in
accordance with the Change Management Procedure referred to in Service
Line 12 (Management of Settlement Change) the applicable Service Line,
Menu of Prices and Variation Menu (or, if the Service is a Non-Menu
Service, to agree or amend documentation recording the terms and
conditions on which the Non-Menu Service is to be provided) and, if
necessary, to amend other elements of the SSA Arrangements to give
effect to such request provided that:-
(a) neither the Settlement System Administrator nor the Executive
Committee nor Pool Members shall be obliged to agree any such
amendment or documentation; and
(b) there shall be no obligation on the Account Manager or the
Contract Manager to continue such negotiations if it is or
becomes evident that there is no agreement to provide the
Service or make the change referred to in sub-section 1.1
above or as to the amendments required to give effect to such
new Service or change.
As part of the negotiations for the provision of a new or amended
Service, the Account Manager shall provide the Contract Manager with
(in the case of a new Service) a price for the Service together with a
statement of the incremental (but not necessarily pro rata) resource
requirement and an accompanying written explanation, and (in the case
of an amended Service) a revised price for that Service justified by
reference to the prices in the relevant Menu of Prices and accompanied
by a written explanation.
1.3 Agreed Changes to Services: The SSA Arrangements, applicable Service
Lines, Menus of Prices and Variation Menus (or, if a Non-Menu Service
is affected, the documentation recording the terms and conditions on
which the Non-Menu Service is to be provided) shall be amended as
required to reflect any agreement between the Pool Members and the
Settlement System Administrator to:-
(a) vary the SSA Arrangements, the Settlement System or the
Development Policies; or
(b) include an Ad Hoc Production Service as a Continuous Production
Service,
in accordance, where appropriate, with the Contract Management Rules.
1.4 Formal documentation: Any new Service or change to Service referred to
in sub-section 1.1 above shall take effect as from the date specified
in the formal documentation giving effect to such new Service or change
and in accordance with the terms of such documentation.
1.5 Addition to Sole Supplier Index: Where a new Service Line is created as
part of the formal documentation giving effect to a new Service or
change to a Service the Settlement System Administrator and the
Executive Committee shall consider whether such new Service Line should
be added to the Sole Supplier Index and, if they so agree, it shall be
so added.
2. PRICE ON REQUEST
2.1 Request for a price: The Contract Manager may from time to time request
the Account Manager on behalf of the Settlement System Administrator to
quote a price for any Price on Request Item and the Settlement System
Administrator will within a reasonable time quote such a price.
2.2 Basis of the price: The price quoted by the Settlement System
Administrator shall be calculated by taking account of the Menu of
Prices for the category of Services which most closely corresponds to
the relevant Price on Request Item and, if applicable, to the price
payable for any third party resources for which the Settlement System
Administrator will need to contract to provide such Price on Request
Item.
2.3 Price on Request: The request and quotation procedure in sub-sections 2.1
and 2.2 above is known as the Price on Request procedure.
2.4 Amendment Procedure: Upon receipt of the Settlement System
Administrator's price the Contract Manager may (but shall not be
obliged to) agree the price quoted. If the Contract Manager shall
notify the Account Manager that he agrees the price, the Account
Manager and the Contract Manager shall ordinarily amend the applicable
Menu of Prices to include the quoted price and the applicable Variation
Menu and, if necessary, the applicable Service Line to include more
detail as to the Service to be provided, unless the Contract Manager
and the Account Manager agree that the price of a Price on Request Item
shall not be added to the applicable Menu of Prices in which case such
Price on Request Item shall remain a Price on Request Item. Upon such
amendment(s) being made the relevant Price on Request Item shall cease
to be a Price on Request Item and shall become a Production Service, a
Development Service or a Consultancy Service (as appropriate) which may
then be Ordered.
PART D
VARIATION MECHANICS
1. INDEXATION
1.1 Indexation: With effect from the first day of each SSA Accounting Period,
beginning with the SSA Accounting Period starting in 1995:-
(a) the Variation Menus shall be automatically adjusted by the applicable
Rate of Inflation; and
(b) the Menus of Prices shall be automatically adjusted by the applicable
Rate of Inflation,
but in each case only where and to the extent expressly provided in the
relevant Menu.
1.2 Mechanics: No later than two months before the first day of each SSA
Accounting Period, beginning with the SSA Accounting Period starting in
1995, the Settlement System Administrator shall prepare and deliver to
the Contract Manager revised Menus of Prices and Variation Menus
adjusted in accordance with sub-section 1.1 above and in the case of
Menus of Prices sub-section 2.1 below together with a report from the
Settlement System Administrator's auditor confirming that it has
reviewed the revised Menus of Prices and Variation Menus and that they
have been correctly adjusted in accordance with such sub-sections.
2. VARIATION MENUS
2.1 Variation Menus: With effect from the first day of each SSA Accounting
Period, beginning with the SSA Accounting Period starting in 1995,
and/or at such other times as may be prescribed in the relevant
Variation Menu, the Menus of Prices shall be automatically adjusted as
provided in the Variation Menus, as such Variation Menus have
themselves first been adjusted as appropriate by the applicable Rate of
Inflation pursuant to sub-section 2.1 above.
2.2 Mechanics:
(a) In the preparation of revised Menus of Prices in accordance
with sub-section 1.2 above, the Settlement System
Administrator shall ensure that the adjustments to the Menus
of Prices prescribed by the Variation Menus as referred to in
sub-section 2.1 above are taken fully into account.
(b) If an adjustment to a Menu of Prices is prescribed pursuant to
sub-section 2.1 above otherwise than with effect from the
first day of an SSA Accounting Period, the Settlement System
Administrator shall prepare and deliver to the Contract
Manager no later than two months before the adjustment is to
take effect a revised Menu of Prices.
3. RENT COSTS
3.1 Changes in rent: If there shall be a change (whether an increase or a
decrease) in the aggregate amount of rent payable by the Settlement
System Administrator for such premises occupied by the Settlement
System Administrator as may be agreed from time to time between the
Settlement System Administrator and the Executive Committee (being in
any event premises occupied by the Settlement System Administrator for
the performance of the Services), the Menu of Production Services
Prices shall be automatically adjusted with effect from the date on
which such change takes effect by the fair allocation of the amount of
such change across the prices for all Continuous Production Services
provided that in the calculation of the change in the aggregate amount
of rent payable by the Settlement System Administrator any increase in
the amount of rent payable in respect of any premises occupied by the
Settlement System Administrator shall be taken into account only to
the extent that the Settlement System Administrator is able to
demonstrate to the reasonable satisfaction of the Executive Committee
that the rent for the relevant premises as so increased is no more
than the open market rack rent for those premises as at the date of
such increase.
3.2 Mechanics: If there shall be a change in rent as described in
sub-section 3.1 above, the Settlement System Administrator shall
prepare and deliver to the Contract Manager a revised Menu of
Production Services Prices adjusted in accordance with sub-section 3.1
above together with a report from the Settlement System Administrator's
auditor confirming that it has reviewed the revised Menu of Production
Services Prices and that it has been fairly adjusted in accordance with
sub-section 3.1 above.
4. VOLUME CHANGES
4.1 Units of Variation: Menus of Prices may provide for units of variation
and prices per unit of variation to Services in which case the units of
variation can be Ordered at the price per unit stated upon the
requisite period of notice of variation (if any) being given.
4.2 Limits: Menus of Prices may provide maximum and minimum limits of a
particular Service. Services required in excess of any such maximum
shall be treated as new Services and Services required below any such
minimum shall, at the request of the Contract Manager, be provided at a
revised lower price where determined in accordance with a Performance
Improvement Programme.
5. STANDING CHARGES
The standing charges referred to in sub-sections 4.1 and 5.1 of Part G
shall be varied automatically at the times and in the manner provided
in the relevant Service Line.
6. MONTHLY MINIMUM MANPOWER CHARGE COMMITMENT
6.1 Monthly Minimum Manpower Charge Commitment: For each Service Line, the
Monthly Minimum Manpower Charge Commitment for any month shall be
determined in accordance with the following formula:-
MMMCC = C
12
where:-
MMMCCis the Monthly Minimum Manpower Charge Commitment for the month in
question (expressed in pounds sterling);
A is the minimum number of man-days per annum for each skill
category as shown in the minimum manpower column in the current
Menu of Consultancy Services Prices and the current Menu of
Development Services Prices;
B is the price at current FSC Rates for the same skill category as
shown in the Menu of Manpower Prices; and
C is the aggregate of the sum of (A x B) for all skill categories
as so shown.
6.2 Reconciliation: Within 15 working days after (x) the first six month
period in an SSA Accounting Period and (y) the end of an SSA Accounting
Period (each an "MMMCC Calculation Period") the Settlement System
Administrator shall for each Service Line calculate and notify the
Contract Manager of:-
(a) the aggregate Monthly Minimum Manpower Charge Commitment for the
six months falling in the MMMCC Calculation Period ("Sum A");
(b) the aggregate charges for manpower Ordered for the six months
falling in the MMMCC Calculation Period in connection with
Consultancy Services and Development Services ("Sum B"); and
(c) the aggregate amount invoiced to Pool Members in the MMMCC
Calculation Period being for each month the greater of the
Monthly Minimum Manpower Charge Commitment or the charge for
manpower Ordered ("Sum C").
The relevant adjustment for the purposes of sub-section 10.2 of Part G
shall always be zero or a credit to Pool Members, shall arise either:-
(i) where Sum A is greater than or equal to Sum B in which event the
credit shall be such amount as is equal to the amount by which
Sum C exceeds Sum A; or
(ii) where Sum A is less than Sum B in which event the credit shall be
such amount as is equal to the amount by which Sum C exceeds Sum
B.
7. MARKET TESTS AND PERFORMANCE IMPROVEMENT PROGRAMMES
The Menus of Prices shall be further adjusted following a market test
or the implementation of a Performance Improvement Programme in
accordance with the agreement (if any) reached between the Settlement
System Administrator and the Executive Committee.
8. INCONSISTENCIES IN THE SSA ARRANGEMENTS
If there is a change or variation to any part of the SSA Arrangements
which creates an inconsistency in the obligations to be discharged by
the Settlement System Administrator under the SSA Arrangements, the
Settlement System Administrator may request the Contract Manager (in
the case of a Service Line) or Pool Members, through the Executive
Committee (in the case of any other part of the SSA Arrangements) to
make such amendments to the SSA Arrangements as it considers necessary
to remove such inconsistency and the Contract Manager or, as the case
may be, the Executive Committee shall act accordingly to make such
amendments as soon as reasonably possible.
PART E
ORDERING SERVICES: GENERAL PROVISIONS
1. GENERAL REQUIREMENT FOR ORDERS
Save as provided in Section 2 below, an Order shall be required to be
given to the Settlement System Administrator for each and every
Service. Save as so provided, the Settlement System Administrator shall
not, and shall not be required to, provide any Service, carry out or
comply with any request or enter into any contract or other arrangement
or do any other thing under or pursuant to the SSA Arrangements unless
an Order is given to and received by the Settlement System
Administrator in accordance with this Part and (if applicable) Part F.
2. EXCEPTIONS TO THE REQUIREMENT FOR ORDERS
No Order is required to be received by the Settlement System
Administrator in respect of:-
(a) Services provided under Service Line 14 (Second Tier Metering)
unless and until an ordering procedure is agreed between the
Settlement System Administrator and the Executive Committee;
(b) Services provided to an individual Pool Member under Service
Line 10 (Service to CEO and Pool Members) or Service Line 11
(Listing and Load Modules) for which a request is received by
the Settlement System Administrator directly from that Pool
Member and where the Pool Member is charged directly for those
Services;
(c) Services provided to the Director or his staff in response to a
request therefrom under Service Line 9 (Service to the Director
General of Electricity Supply);
(d) requests of the description in sub-section 3.1(a) below;
(e) Services provided or acts carried out where, in the reasonable
opinion of the Settlement System Administrator, there will be
a breach of NGC's obligations under the Act or NGC's
Transmission Licence unless such Services are provided or such
acts are carried out by the Settlement System Administrator;
(f) Services provided or acts carried out by the Settlement System
Administrator in good faith where the Contract Manager or his
alternate was unavailable to give an Order and, in the
reasonable opinion of the Settlement System Administrator, it
was necessary to act without an Order having been received
from the Contract Manager in order to ensure the continued
provision of the Services under the SSA Arrangements provided
that, for the Settlement System Administrator to have the
right to charge for such Services or acts, an Order shall be
required to be issued after the event and, unless the
Settlement System Administrator has not acted in good faith,
the Contract Manager shall issue such an Order; and
(g) requests from Pool Members, the Executive Committee, the Chief
Executive's Office or the Contract Manager for access to
persons involved in the provision of Production Services and
no charge shall be made where such requests do not exceed the
limits set out in the Contract Management Rules.
3. ISSUING, AND COMPLYING WITH, ORDERS AND REQUESTS
3.1 Entitlement to issue Orders and requests: The only persons
entitled to issue Orders to or to make requests of the Settlement
System Administrator under the SSA Arrangements are:-
(a) if the request has no material cost consequence for the
Settlement System Administrator, the Executive Committee
(either acting by itself or through the Chief Executive) or
the Contract Manager;
(b) if the request has such a material cost consequence, the Contract
Manager by means of an Order;
(c) individual Pool Members by request under Service Line 10 (Service
to CEO and Pool Members) or Service Line 11 (Listing and Load
Modules); and
(d) the Director or his staff by request under Service Line 9
(Service to the Director General of Electricity Supply).
3.2 Compliance with Orders and requests: Subject to the other provisions of
this Section 3, the Settlement System Administrator shall at all times
observe and comply with all requests made by (a) the Executive
Committee or the Contract Manager, or (b) individual Pool Members under
Service Line 10 (Service to CEO and Pool Members) or Service Line 11
(Listing and Load Modules), or (c) the Director or his staff under
Service Line 9 (Service to the Director General of Electricity Supply),
and all Orders which fulfil the criteria set out in sub-section 3.6
given by the Contract Manager.
3.3 Signature of requests: The Settlement System Administrator shall
be entitled to rely upon any request of the Executive Committee
if the same is signed by or on behalf of two or more Committee
Members or by or on behalf of the Chief Executive.
3.4 Signature of Orders: The Settlement System Administrator shall be
entitled to rely upon an Order if the same is signed by the
Contract Manager.
3.5 Limited delegation: The Settlement System Administrator shall not act
on the directions or instructions of any sub-committee of the Executive
Committee or any delegate of the Executive Committee other than the
Chief Executive or (in the case of Orders) the Contract Manager.
3.6 Criteria for Orders: An Order shall:-
(a) be in writing and be clear and unequivocal (and an Order shall
be deemed such until such time as the Settlement System
Administrator requests any necessary clarification);
(b) have due regard to the resources of the Settlement System
Administrator available to give effect to such Order;
(c) not increase the liabilities of the Settlement System
Administrator beyond those contemplated under the SSA
Arrangements without proper compensation. For this purpose,
without limitation, compensation for increased liabilities
shall be proper if an indemnity is given to the Settlement
System Administrator which is reasonably satisfactory to it or
other compensation reasonably satisfactory to the Settlement
System Administrator is provided to it;
(d) not conflict with the terms of the SSA Arrangements; and
(e) not cause the Settlement System Administrator to breach any of
NGC's obligations under the NGC Transmission Licence.
3.7 Authority of Pool Members, the Executive Committee and the Chief
Executive: Save as provided in sub-section 3.1(a) and in respect
of Services under Service Line 10 (Service to CEO and Pool
Members) or Service Line 11 (Listing and Load Modules):-
(a) none of the Pool Members, the Executive Committee and the
Chief Executive may issue requests or Orders to the Settlement
System Administrator; and
(b) the Settlement System Administrator shall not act in
accordance with any request of the Pool Members, Chief
Executive or Executive Committee unless the Pool Members, the
Executive Committee or the Chief Executive act through the
Contract Manager.
4. SETTLEMENT SYSTEM ADMINISTRATOR'S PROTECTIONS
4.1 Recovery of charges: Nothing in this Part E and no omission on the part
of the Contract Manager to issue an Order or to issue an Order for
sufficient Services to cover the Monthly Minimum Manpower Charge
Commitment and Minimum Contract Price shall prevent the Settlement
System Administrator from invoicing and recovering from Pool Members in
accordance with Parts G and J the Monthly Minimum Manpower Charge
Commitment, the Minimum Contract Price and the standing charges
referred to in sub-sections 4.1 and 5.1 of Part G.
4.2 Compliance with the Director's directions: No liability whatsoever
shall attach to the Settlement System Administrator as a result of due
compliance by it with any directions and instructions of the Director,
provided that in complying with such directions and instructions the
Settlement System Administrator is at all times acting in good faith.
4.3 Ratification: Nothing in the SSA Arrangements shall prevent the
Executive Committee or the Contract Manager from ratifying any act of
the Settlement System Administrator such ratification to be, where
applicable, by way of an Order.
4.4 Express authority: All requests of the Executive Committee and Orders
or requests of the Contract Manager to the Settlement System
Administrator shall, as between the Settlement System Administrator and
the Pool Members, be deemed to have the express authority of and shall
be binding without reservation upon all Pool Members.
4.5 Reliance on documents believed genuine: The Settlement System
Administrator shall be entitled to rely upon any communication or
document reasonably believed by it to be genuine and correct and to
have been communicated or signed by the person by whom it purports to
be communicated or signed and shall not be liable to any of the Parties
for any of the consequences of such reliance.
4.6 General meetings: The Settlement System Administrator shall not be
obliged to take any steps to ascertain whether any resolution of Pool
Members in general meeting or of any class of Pool Members in separate
general meeting which it is advised by the Executive Committee or the
Chief Executive as having been passed was in fact passed or passed by
the requisite majority and until the Settlement System Administrator
shall have express written notice to the contrary from the Executive
Committee or the Chief Executive it shall be entitled to assume that
the relevant resolution was passed or (as the case may be) the relevant
requisite majority was obtained.
4.7 Exceptions: Notwithstanding the foregoing provisions of Section 3, in
the performance of its duties and responsibilities under the SSA
Arrangements the Settlement System Administrator shall not be bound to
act in accordance with any request of the Executive Committee or the
Contract Manager or any individual Pool Member under Service Line 10
(Service to CEO and Pool Members) or Service Line 11 (Listing and Load
Modules), or an Order if:-
(a) to do so would cause the Settlement System Administrator to breach
any of NGC's obligations under the Act or NGC's Transmission Licence; or
(b) the Settlement System Administrator has reasonable grounds for
believing that it would so breach any of such obligations and
has consulted the Director and:-
(i) the Director has not indicated that in his view it would not
involve any such breach; or
(ii) the Director has indicated that, notwithstanding any such actual
or potential breach, the Director would not be minded to enforce
compliance with those obligations and the Settlement System
Administrator has received an indemnity reasonably satisfactory
to it in respect of its acting in accordance with such requests
or Orders.
In any such event the Settlement System Administrator shall promptly
notify the Executive Committee.
4.8 Reference to the Director: If at any time the Settlement System
Administrator has a concern which is properly and reasonably founded
that, in acting in accordance with any requests of the Executive
Committee or the Contract Manager or an individual Pool Member or any
Order, it will breach one or more of NGC's obligations under the Act or
NGC's Transmission Licence, then, if having discussed the matter with
the Executive Committee the matter remains unresolved, the Settlement
System Administrator shall either comply with such request or Order or
by notice in writing refer the same to the Director, such notice to set
out in full the request or be accompanied by a copy of the Order (as
the case may be) given to the Settlement System Administrator and the
grounds for such concern and to be copied to the Executive Committee
and (if applicable) the individual Pool Member. Pending any guidance
from the Director in response to any such reference and, provided that
the Director shall not express any view that such reference is
misconceived, vexatious or in respect of an improperly or unreasonably
founded concern, the Settlement System Administrator shall not be
liable to any of the other Parties for refusing to act in accordance
with the relevant request or Order. If the Director shall express such
a view, the Settlement System Administrator shall be so liable.
5. JOB NUMBERS
5.1 Job Numbers: The Contract Manager shall ensure that each Order
that he issues shall have a Job Number and a stated objective.
Where Orders issued by the Contract Manager have a common stated
objective they will bear a related Job Number.
5.2 Extensions to Orders: Extensions to Orders may be made only if
the Order in respect of such extension bears the same stated
objective as the earlier Order.
6. SUPPLEMENTAL PROVISIONS
6.1 Changing resources: Once the Contract Manager has become aware of the
identity of a particular person to be allocated to a particular Order
whose responsibilities include direct communication with the Executive
Committee or the Contract Manager (as the case may be) in connection
with that Order, that person shall not be changed without prior
consultation with and the agreement of the Executive Committee or the
Contract Manager.
6.2 Ordering ethos: The Executive Committee shall endeavour to place Orders
that month on month maintain a steady level of resource requirement but
shall have the right to place Orders at any level that varies
reasonably from one month to the next provided that nothing in this
sub-section shall prevent a Service Line being varied to a state where
no Service is to be provided or can be Ordered thereunder.
6.3 Resource records: The Settlement System Administrator shall
maintain a record showing by Job Number where a Service has been
Ordered but no work delivered or (as the case may be) no added
value provided in the provision of that Service.
6.4 Dedication of resource: The resource represented by an Order shall be
dedicated wholly and exclusively to the provision of the Service
Ordered and shall not be made available to any third party or for any
other purpose without the prior written consent of the Contract
Manager.
6.5 Failure to supply resource: Where a resource has been Ordered but is
not delivered in accordance with the terms of that Order, that resource
shall be delivered at no further cost to Pool Members at such time or
times as may be reasonably required by the Contract Manager and subject
to such limits as may be agreed from time to time by the Account
Manager and the Contract Manager.
PART F
ORDERING SERVICES: SPECIFIC PROVISIONS
1. ORDERING PRODUCTION SERVICES
1.1 Continuous Production Services: The minimum period for which a
Continuous Production Service can be Ordered is one month.
1.2 Volume changes: If there shall be a change in the volume of Continuous
Production Services for which no Order has been given, the Settlement
System Administrator shall promptly notify the Contract Manager who
shall promptly issue an Order with retrospective effect for such
change.
1.3 Ad Hoc Production Services: The Contract Manager shall have the
right to Order Ad Hoc Production Services in accordance with the
Menu of Production Services Prices.
2. ORDERING CONSULTANCY SERVICES
2.1 Minimum manpower periods: The minimum periods for which manpower
can be Ordered for Consultancy Services are:-
(a) if charged at the FSC Rate, one month;
(b) if charged at the ASC Rate, four months; and
(c) if charged at the SCR Rate, one day.
2.2 Extensions of manpower: If manpower of a particular skill category has
been Ordered for Consultancy Services and the Contract Manager requires
further manpower of that skill category for Consultancy Services with
the same stated objective as the earlier Order, the Contract Manager
may Order the extension of such manpower requirement:-
(a) where the earlier Order is charged at the ASC Rate, for one or
more whole months at the same rate upon giving at least one
month's prior notice to the Settlement System Administrator;
and
(b) where the earlier Order is charged at the SCR Rate, for one or
more periods of five days at the same rate upon giving at
least five working days' prior notice to the Settlement System
Administrator.
Once the stated objective of a Consultancy Service has been achieved or
otherwise satisfied, there shall be no extension of manpower under this
sub-section 2.2 in relation to that stated objective.
2.3 Short Notice Ordering: If the Order for Consultancy Services is
received by the Settlement System Administrator less than three working
days before the date on which the Consultancy Service is required, the
Settlement System Administrator shall use all reasonable endeavours to
provide the necessary manpower but shall have no absolute obligation so
to do. The Charge for Consultancy Services Ordered on such notice shall
be the SCR Rate as referred to in sub-section 4.2(c) of Part G.
3. ORDERING DEVELOPMENT SERVICES
3.1 Project Template: Subject to sub-section 3.5 below, Development
Services shall be Ordered to a Project Template and the provisions of
sub-sections 3.2 to 3.4 (inclusive) shall apply to any such Order. The
Settlement System Administrator shall supply the Contract Manager with
copies of Project Templates to the values agreed from time to time
between the Account Manager and the Contract Manager.
3.2 Minimum manpower periods: The minimum periods for which manpower
can be Ordered for Development Services are:-
(a) if charged at the FSC Rate, one month;
(b) if charged at the ASC Rate, four months; and
(c) if charged at the SCR Rate, one day.
3.3 Extensions of manpower: If manpower of a particular skill category has
been Ordered for Development Services and the Contract Manager requires
further manpower of that skill category for Development Services with
the same stated objective as the earlier Order, the Contract Manager
may Order the extension of such manpower requirement:-
(a) where the earlier Order is charged at the ASC Rate, for one or
more whole months at the same rate upon giving at least one
month's prior notice to the Settlement System Administrator;
and
(b) where the earlier Order is charged at the SCR Rate, for one or
more periods of five days at the same rate upon giving at
least five working days' prior notice to the Settlement System
Administrator.
Once the stated objective of a Development Service has been achieved or
otherwise satisfied, there shall be no extension of manpower under this
sub-section 3.3 in relation to that stated objective.
3.4 Short Notice Ordering: If the Order for Development Services is
received by the Settlement System Administrator less than three working
days before the date on which the Development Service is required, the
Settlement System Administrator shall use all reasonable endeavours to
provide the necessary manpower but shall have no absolute obligation so
to do. The Charge for Development Services Ordered on such notice shall
be the SCR Rate as referred to in sub-section 5.3(c) of Part G.
3.5 Fixed Price: Notwithstanding the foregoing provisions of this Section
3, the Contract Manager and the Settlement System Administrator may
agree from time to time that Development Services shall be Ordered on a
fixed price basis and, if so agreed, shall record the terms of that
fixed price agreement (including payment terms) in writing.
4. ORDERING NON-MENU SERVICES
A Non-Menu Service may not be Ordered unless and until documentation
recording the terms and conditions on which it is to be provided has
been agreed as provided in Section 1 of Part C.
5. REQUESTS BY DIRECTOR
The Director or his staff may make requests for Services under and in
accordance with Service Line 9 (Service to the Director General of
Electricity Supply).
6. INDIVIDUAL POOL MEMBER REQUESTS
Individual Pool Members may make requests for Services under and in
accordance with Service Line 10 (Service to CEO and Pool Members) or
Service Line 11 (Listing and Load Modules).
7. THIRD PARTY PROCUREMENT
7.1 Third Party Contract: Subject to sub-section 7.2 below, upon receipt of
an Order and on and subject to the terms and conditions thereof, the
Settlement System Administrator shall enter into or (as the case may
be) amend, vary or modify (or agree to an amendment, variation or
modification of) a contract or other arrangement with a third party for
the provision of a resource to or for the benefit of the Settlement
System Administrator to enable it to provide a Service the costs of
which are to be passed directly to Pool Members (a "Third Party
Contract"), but shall not do any of the foregoing in the absence of
such an Order.
7.2 Exceptional circumstances: If by reason of:-
(a) a term in any licence of Licensed Software (as defined in Section
9 of Schedule 4); or
(b) the Service requiring the provision of skill sets outside the
defined scope of the Manpower Menu of Prices; or
(c) the Service requiring product knowledge outside the defined scope
of the SSA Arrangements,
the Settlement System Administrator has no option but to contract with
a third party for the provision of a resource to or for the benefit of
the Settlement System Administrator to enable it to provide a Service,
it shall request the Contract Manager to issue an Order to that effect
and shall give a written explanation in support of that request and
allow the Contract Manager sufficient time to consult the Executive
Committee provided that the Contract Manager shall have no obligation
to issue any such Order and, if no such Order is issued, the Settlement
System Administrator shall not enter into any such contract.
PART G
CHARGES FOR SERVICES: GENERAL PRINCIPLES
1. GENERAL
The Settlement System Administrator shall have the right to charge Pool
Members for Services it has provided or is to provide and to recover
from them the charges set out in this Part G and in Part H upon and
subject to the terms and conditions set out in such Parts. A summary of
the charges recoverable by the Settlement System Administrator in
respect of any month is set out in Section 9 below.
2. CHARGES FOR PRODUCTION SERVICES
2.1 Continuous Production Services: The charge for each Continuous
Production Service shall be the corresponding price set out in
the Menu of Production Services Prices.
2.2 Ad Hoc Production Services: The charge for each Ad Hoc Production
Service shall be the corresponding price set out in the Menu of
Production Services Prices.
3. CHARGES FOR SECOND TIER METERING
3.1 Charges: The Settlement System Administrator shall have the right
to charge for the provision of Services in Service Line 14
(Second Tier Metering) in accordance with the Menu of Second Tier
Metering Prices (being an annex to the Menu of Production
Services Prices).
3.2 Separate Account: The Settlement System Administrator shall open
and maintain a separate account (the "STSSC Account") to which it
shall credit monthly ------------- the Second Tier Suppliers
System Charge received for that month.
3.3 Debits against Account: The Settlement System Administrator shall
debit the STSSC Account each month with the amount that it is
entitled to charge in accordance with sub-section 3.1 above for
the provision of Services in Service Line 14 (Second Tier
Metering).
3.4 Interest: Interest shall accrue and be chargeable on credit and
debit balances on the STSSC Account as follows:-
(a) the Settlement System Administrator shall have the right to
charge interest on any debit balance on the STSSC Account;
and
(b) the Settlement System Administrator shall be liable to pay
interest on any credit balance on the STSSC Account.
The rate of interest shall be agreed from time to time between the
Executive Committee and the Settlement System Administrator and shall
accrue from day to day on the basis of a 365-day year on the credit or
debit balances outstanding.
3.5 Over-recovery: If at the end of an Accounting Period there shall be a
credit balance on the STSSC Account the Settlement System Administrator
shall account for that balance to such persons as the Executive
Committee shall direct.
4. CHARGES FOR CONSULTANCY SERVICES
4.1 Standing Charge: The Settlement System Administrator shall have the
right to recover in respect of each month the standing charge for
Consultancy Services set out in the Menu of Consultancy Services
Prices, whether or not Consultancy Services are Ordered or the volume
of service under the relevant Service Line has been reduced to zero or
the relevant Service Line cancelled. It is agreed that standing charges
for Consultancy Services are applicable only to Service Lines 8
(Service to Pool Auditor), 10 (Service to CEO and Pool Members), 12
(Management of Settlement Change) and 13 (Consultancy, Committee
Support and Training Services).
4.2 Manpower Charges: The Settlement System Administrator shall have the right
to charge for manpower provided or to be provided for Consultancy Services
at the following rates, subject as provided in sub-section 4.3 below:-
(a) if the Order for Consultancy Services is received by the
Settlement System Administrator 12 months or more before the date
on which the Consultancy Service is required, the FSC Rate;
(b) if the Order for Consultancy Services is received by the
Settlement System Administrator two or more months but less than
12 months before the date on which the Consultancy Service is
required, the ASC Rate;
(c) if the Order for Consultancy Services is received by the
Settlement System Administrator less than two months before
the date on which the Consultancy Service is required, the SCR
Rate; and
(d) if the Order for Consultancy Services is an extension of an
existing manpower commitment in accordance with sub-section 2.2
of Part F, at the relevant rate provided in that sub-section.
4.3 Revisions to charges: If in connection with Orders for Consultancy
Services with the same stated objective the total period (being the
original period and all extensions pursuant to sub-section 2.2 of Part
F) for which manpower in a particular skill category charged by
reference to:-
(a) the ASC Rate is provided equals or exceeds 12 months then,
from the date which is two months after receipt of the Order
which extends the total aggregate period for the provision of
such manpower up to or beyond 12 months, the Settlement System
Administrator shall charge for the provision of such manpower
at the FSC Rate provided that in no event shall the FSC Rate
apply within the minimum four month period referred to in
sub-section 2.1 of Part F; and
(b) the SCR Rate is provided equals or exceeds two months then,
from the date which is one month after receipt of the Order
which extends the total aggregate period for the provision of
such manpower up to or beyond two months, the Settlement
System Administrator shall charge for the provision of such
manpower at the ASC Rate provided that in no event shall the
SCR Rate apply within the two month period following the date
such manpower was first provided.
5. CHARGES FOR DEVELOPMENT SERVICES
5.1 Standing Charge: The Settlement System Administrator shall have the
right to recover in respect of each month the standing charge for
Development Services set out in the Menu of Development Services
Prices, whether or not Development Services are Ordered or the volume
of service under the relevant Service Line has been reduced to zero or
the relevant Service Line cancelled. It is agreed that standing charges
for Development Services are applicable only to Service Lines 15
(Design Authority), 18 (System Development) and 19 (System
Integration).
5.2 Template Charging: Subject as provided in the following sub-sections of
this Section 5, the Settlement System Administrator shall charge for
Development Services Ordered to a Project Template in accordance with
the terms of that Project Template.
5.3 Manpower Charges: The Settlement System Administrator shall have
the right to charge for manpower provided or to be provided for
Development Services at the following rates, subject as provided
in sub-section 5.4 below:-
(a) if the Order for Development Services is received by the
Settlement System Administrator 12 months or more before the
date on which the Development Services is required, the FSC
Rate;
(b) if the Order for Development Services is received by the
Settlement System Administrator two or more months but less
than 12 months before the date on which the Development
Service is required, the ASC Rate;
(c) if the Order for Development Services is received by the
Settlement System Administrator less than two months before
the date on which the Development Services is required, the
SCR Rate; and
(d) if the Order for Development Services is an extension of an
existing manpower commitment in accordance with sub-section
3.2 of Part F, at the relevant rate provided in that
sub-section.
5.4 Revisions to Charges: If in connection with Orders for Development
Services with the same stated objective the total period (being the
original period and all extensions pursuant to sub-section 3.2 of Part
F) for which manpower in a particular skill category charged by
reference to:-
(a) the ASC Rate is provided equals or exceeds 12 months then,
from the date which is two months after receipt of the Order
which extends the total aggregate period for the provision of
such manpower up to or beyond 12 months, the Settlement System
Administrator shall charge for the provision of such manpower
at the FSC Rate provided that in no event shall the FSC Rate
apply within the minimum four month period referred to in
sub-section 3.1 of Part F; and
(b) the SCR Rate is provided equals or exceeds two months then,
from the date which is one month after receipt of the Order
which extends the total aggregate period for the provisions of
such manpower up to or beyond two months, the Settlement
System Administrator shall charge for the provision of such
manpower at the ASC Rate provided that in no event shall the
SCR Rate apply within the two month period following the date
such manpower was first provided.
5.5 Fixed Charges: Notwithstanding the provisions of sub-sections 5.2, 5.3
and 5.4 above, if Development Services have been Ordered on a fixed
price basis in accordance with sub-section 3.5 of Part F, the
Settlement System Administrator shall charge for such Development
Services on the terms of the written fixed price agreement referred to
in that sub-section and not on the terms of sub-sections 5.2, 5.3 and
5.4 above (but without prejudice to the Settlement System
Administrator's right to recover the standing charge referred to in
sub-section 5.1 above).
6. CHARGES FOR NON-MENU SERVICES
The charge for each Non-Menu Service shall be the price set out in the
agreed documentation for the provision of such Non-Menu Service.
7. THIRD PARTY PROCUREMENT COSTS
In respect of any Third Party Contract where in accordance with the
terms of the Order relating thereto the Third Party Costs are to be
invoiced to the Settlement System Administrator and passed directly
through to Pool Members, the Settlement System Administrator shall have
the right to recover the Handling Charge in respect of such Third Party
Costs.
8. POOL DATA CATALOGUE FEES
8.1 Amount of Pool Data Catalogue Fees: The fee payable by a Party pursuant
to Clause 34.2.1 (the "Pool Data Catalogue Fee") shall be determined
from time to time by the Executive Committee and confirmed by Order,
but shall not be less than the aggregate of (a) the cost to the
Settlement System Administrator of providing all such data and other
information or (as the case may be) such of it as is requested by such
Party, and (b) the Handling Charge, provided that the Executive
Committee may, in its discretion, determine that such fee shall be less
than the aggregate of (a) and (b) but, in such event, such Order shall
also specify that the difference between such fee and such aggregate
amount shall be charged to all Pool Members as if it were a Third Party
Cost.
8.2 Payment of Pool Data Catalogue Fees: The Pool Data Catalogue Fee shall
be payable in arrears within 15 days after the issue by the Settlement
System Administrator of an invoice therefor or within such other period
as may be agreed from time to time by the relevant Party and the
Settlement System Administrator. All such payments shall be made in
sterling in cleared funds in full without set-off or counter-claim,
withholding or deduction of any kind whatsoever but without prejudice
to any other remedy.
8.3 Disputes: In the event of any dispute regarding payment of the Pool
Data Catalogue Fee, a Party may not withhold payment of any invoiced
amount therefor but may refer such dispute to arbitration in accordance
with Clause 83 following payment.
8.4 Interest on non-payment: The provisions of sub-section 3.3 of Part J shall
apply mutatis mutandis to any amount due to the Settlement System
Administrator pursuant to sub-section 8.2 above which is not received on
the due date.
8.5 Absence of Order: In the absence of an Order confirming the Pool Data
Catalogue Fee, the Settlement System Administrator may charge Parties a
fee pursuant to Clause 34.2.1 equal to the aggregate of (a) the cost to
the Settlement System Administrator of providing all such data and
other information or (as the case may be) such of it as is requested by
the relevant Party and (b) the Handling Charge.
9. SUMMARY OF CHARGES RECOVERABLE
In respect of any month the Settlement System Administrator shall have
the right to recover from all Pool Members the following amounts in
respect of Services provided or to be provided during that month:-
(a) charges for all Continuous Production Services provided or
to be provided during such month, determined as provided in
sub-section 2.1 above;
(b) charges for all Ad Hoc Production Services provided or to be
provided during such month, determined as provided in
sub-section 2.3 above;
(c) charges for the provision of Services in Service Line 14
(Second Tier Metering) provided or to be provided during
such month, determined as provided in sub-section 3.1 above;
(d) the monthly standing charge for Consultancy Services,
determined as provided in sub-section 4.1 above;
(e) charges for all Consultancy Services provided or to be
provided during each month, determined as provided in
sub-section 4.2 above;
(f) the monthly standing charge for Development Services,
determined as provided in sub-section 5.1 above;
(g) charges for all Development Services provided or to be
provided during such month, determined as provided in
sub-section 5.2 or 5.5 above;
(h) charges for Services provided or to be provided during such
month requested by the Director or his staff pursuant to
Service Line 9 (Service to the Director General of
Electricity Supply) (or a substitute Service Line in agreed
form);
(i) charges for all Non-Menu Services, determined as provided in
Section 6 above;
(j) Third Party Costs that have been invoiced to the Settlement
System Administrator during such month, and the Handling
Charge in respect thereof;
(k) the shortfall (if any) in the Minimum Manpower Charge
Commitment, determined as provided in Section 10 below; and
(l) any charges which are expressed in this Agreement as
recoverable "in accordance with the Charging Procedure"
provided that with the exception of:-
(i) the recovery of the standing charges for Consultancy
Services and Development Services;
(ii) until such time as an ordering procedure is agreed between
the Settlement System Administrator and the Executive
Committee, the recovery of charges for Services referred to
in paragraph (c) above;
(iii)the recovery of charges for Services referred to in
paragraph (h) above;
(iv) the recovery of the Monthly Minimum Manpower Charge
Commitment;
(v) the recovery of the Minimum Contract Price; and
(vi) the recovery of charges for Services referred to in Sections
(2)(b) and 2(e) of Part E,
the Settlement System Administrator shall not have the right to recover
charges in respect of Services provided or to be provided unless an
Order in respect of those Services has been received by the Settlement
System Administrator.
10. MONTHLY MINIMUM MANPOWER CHARGE COMMITMENT
10.1 Monthly recovery: If in respect of any month the aggregate
of the charges referred to in paragraphs (e) and (g) of
Section 9 above shall be less than the Monthly Minimum
Manpower Charge Commitment, the Settlement System
Administrator shall have the right to recover the amount of
such shortfall without an Order.
10.2 Reconciliation procedure: A reconciliation of the Services provided
against the amounts received on account of the Monthly Minimum Manpower
Charge Commitment shall be carried out at the times and in the manner
provided in sub-section 6.2 of Part D, and any resultant adjustment
shall be taken into account in the next invoice for Post Charges to be
issued under Part J.
11. MINIMUM CONTRACT PRICE
11.1 Annual recovery: If in respect of any SSA Accounting Period the
aggregate of the charges referred to in paragraphs (a), (b), (d), (e),
(f), (g) and (k) of Section 9 above (but excluding any such charges
under paragraphs (a), (b), (e) and (g) of Section 9 referable to
Services provided under Service Lines 9, 11, 14, 16, 17, 18 and 21)
recovered for all months in such SSA Accounting Period shall be less
than the Minimum Contract Price, the Settlement System Administrator
shall have the right to recover the amount of such shortfall without an
Order in the first monthly invoice to be issued under Part J after the
end of such SSA Accounting Period.
11.2 Monthly recovery: If in any SSA Accounting Period it appears to the
Account Manager (acting reasonably) after consultation with the
Contract Manager and by reference to Orders received that the sum of
the charges referred to in sub-section 11.1 above for the remainder of
such SSA Accounting Period when aggregated with the sum of such charges
already recovered in such SSA Accounting Period will be less than the
Minimum Contract Price, the amount of such shortfall may be recovered
without an Order in monthly instalments over the remaining months of
such SSA Accounting Period, the amount of such instalments being agreed
in advance by the Contract Manager and the Account Manager, such
agreement not to be unreasonably withheld.
11.3 Minimum Contract Price: The Minimum Contract Price in respect of any
SSA Accounting Period shall be the amount set out against such SSA
Accounting Period in the document entitled Minimum Contract Price Menu
in the agreed form.
PART H
CHARGES FOR SERVICES: EXCEPTIONAL ITEMS
1. EXTENSION PERIOD CHARGES
The Settlement System Administrator shall be entitled to charge in
accordance with the Charging Procedure for all and any Services
provided during the Extension Period by the Settlement System
Administrator as follows:-
(a) where the first Extension Notice is served on the Settlement System
Administrator at least six months before the Termination Date:-
(i) for the first three months of all Extension Periods
(taken together), the Settlement System Administrator
shall be entitled to charge for Services in accordance
with the appropriate rates for those Services in the
relevant Menu of Prices multiplied by 1.0; and
(ii) for the second three months of all Extension Periods
(taken together), the Settlement System Administrator
shall be entitled to charge for Services in accordance
with the appropriate rates for those Services in the
relevant Menu of Prices multiplied by 1.1; and
(iii) for any period thereafter, the Settlement System
Administrator shall be entitled to charge for Services
in accordance with the appropriate rates for those
Services in the relevant Menu of Prices multiplied by
1.2;
(b) where the first Extension Notice is served on the Settlement
System Administrator less than six months but more than three
months before the Termination Date:-
(i) for the first three months of all Extension Periods
(taken together), the Settlement System Administrator
shall be entitled to charge for Services in accordance
with the appropriate rates for those Services in the
relevant Menu of Prices multiplied by 1.1; and
(ii) for any period thereafter, the Settlement System
Administrator shall be entitled to charge for Services
in accordance with the appropriate rates for those
Services in the relevant Menu of Prices multiplied by
1.2; and
(c) where the first Extension Notice is served on the Settlement
System Administrator less than three months before the
Termination Date, the Settlement System Administrator shall be
entitled to charge for Services in the Extension Period in
accordance with the appropriate rates for those Services in
the relevant Menu of Prices multiplied by 1.2.
If the aggregate of any additional or consequential costs (other than
manpower costs) properly incurred in any Extension Period and reported
on by the auditor of the Settlement System Administrator exceeds the
aggregate of the incremental rates charged in any such Extension Period
in accordance with paragraphs (a) to (c) above the amount of such cost
shall be recoverable by the Settlement System Administrator.
2. BAD DEBTS
The total cost of any bad debts (including interest thereon) of the
Settlement System Administrator in providing the Services and arising
in any SSA Accounting Period may be recovered by the Settlement System
Administrator in any subsequent SSA Accounting Period as if it were a
Third Party Cost (but the Settlement System Administrator shall not
have the right to recover the Handling Charge in respect thereof).
3. NEW TAXES OR NEW LEGISLATION
3.1 New taxes: If by reason of the introduction of a new tax (other than a
tax on overall net income) the cost to the Settlement System
Administrator of providing the Services is increased or the amount of
any payment received or receivable by the Settlement System
Administrator under the SSA Arrangements for providing the Services is
reduced, then:-
(a) forthwith upon becoming aware of the happening of such event
the Settlement System Administrator shall notify the Executive
Committee who shall thereupon notify the Pool Members;
(b) the Settlement System Administrator shall, as soon as is
reasonably practicable, give the Executive Committee (who
shall thereupon notify the Pool Members) a certificate giving
details of the new tax and the amount of such additional cost
or reduction and the calculation thereof and the period to
which it applies together with a report from its auditors
confirming that they have reviewed the basis of the
calculation of the additional cost or reduction and confirming
the accuracy of the calculation; and
(c) subject to the Settlement System Administrator complying with
its obligations under paragraphs (a) and (b) above, the
Settlement System Administrator shall have the right to
recover from Pool Members the amount of such additional cost
or reduction through an adjustment to the Menus of Prices or
in such other manner as may be agreed with the Executive
Committee as will in either case ensure that the Settlement
System Administrator is kept whole in respect of such
additional cost or reduction.
3.2 New legislation: If at any time the Settlement System Administrator
becomes subject to either a new statute passed by the government of the
United Kingdom or a new European Union regulation which is directly
applicable, in either case under which the Settlement System
Administrator is obliged to act in a manner which materially increases
the cost to it of providing the Services then it shall notify the
Executive Committee of such a change and if the Executive Committee is
satisfied, in its sole discretion, that:-
(a) the Settlement System Administrator is obliged to act in
accordance with the new legislation; and
(b) the cost to the Settlement System Administrator of providing
the Services as a whole will be materially increased as a
result of complying with such legislation,
the Executive Committee shall enter into good faith negotiations with
the Settlement System Administrator to agree (but with no absolute
obligation on the Executive Committee or the Settlement System
Administrator to agree) amendments to the Menus of Prices to reflect
such increased costs.
4. EXCEPTIONAL ITEMS
If, where Service Line 21 (Emergency Services) is invoked by the
Executive Committee, the Settlement System Administrator shall
necessarily incur additional costs in running the Settlement Business
during a Security Period, those costs shall be regarded as beyond the
control of the Settlement System Administrator and the Settlement
System Administrator may recover the same, together with an
administration charge of 2.5 per cent., as if they were Third Party
Costs (but shall not have the right to recover the Handling Charge in
respect thereof) provided that such costs have been verified as
additional costs by the Settlement System Administrator's auditors.
Pool Members shall be obliged to pay the actual amount of such costs
and all reasonable costs of the Settlement System Administrator's
auditors in verifying the same.
5. MARKET TEST COSTS
Where any market test is commissioned by the Executive Committee, Pool
Members shall be liable according to their Contributory Shares for:-
(a) all Third Party Costs (if any) incurred in contracting for
the market test services; and
(b) all costs (if any) directly and properly incurred by ESIS in
appraising the result of a market test of which the
Settlement System Administrator has been asked to take
account pursuant to sub-section 9.3 of Part B and in
requesting clarification of the method and clarification and
correction of the results thereof.
6. PIP REBATES
If as a result of the implementation of a Performance Improvement
Programme there shall be any rebate due to Pool Members in respect of
the charges of the Settlement System Administrator for the provision of
Services, Pool Members will be credited a proportionate sum of such
rebate according to their Contributory Shares in the next invoice
issued by the Settlement System Administrator under Part J.
PART J
COST RECOVERY
1. CHARGES RECOVERABLE BY THE SETTLEMENT SYSTEM ADMINISTRATOR
The Settlement System Administrator shall have the right to recover
from all Pool Members all sums due to it from them under the SSA
Arrangements provided that such sums are invoiced in accordance with
this Part. All sums to be recovered must be included in an invoice for
Prior Charges or an invoice for Post Charges. In respect of any month,
the amounts invoiced on an invoice for Prior Charges and on an invoice
for Post Charges shall together be known as the Total Sum Due in
respect of that month.
2. INVOICING
2.1 Invoice Statement for Prior Charges: The Settlement System
Administrator shall send the Contract Manager an invoice statement for
Prior Charges in the agreed form in respect of each month no later than
45 days prior to the commencement of such month.
2.2 Content of Invoice Statement: Each invoice statement for Prior Charges
shall specify the amount due in respect of Services to be provided during
the relevant month as follows:-
(a) the charge for Continuous Production Services;
(b) the monthly standing charge for Consultancy Services;
(c) the monthly standing charge for Development Services;
(d) the greater of (i) the Monthly Minimum Manpower Charge
Commitment and (ii) the charges for manpower Ordered for that
month in connection with Consultancy Services and Development
Services at the FSC and ASC Rates; and
(e) (i) one-twelfth of the Suppliers Second Tier Charge for that
Accounting Period; and
(ii) the anticipated under-recovery (if any) in the
Accounting Period to date of charges for the provision
of Services in Service Line 14 (Second Tier Metering),
plus or minus the interest accrued on the debit or
credit balance (as the case may be) on the STSSC
Account.
2.3 Invoice Statement for Post Charges: The Settlement System Administrator
shall send the Contract Manager an invoice statement for Post Charges
in the agreed form in respect of each month no later than ten days
after the end of such month.
2.4 Content of Invoice Statement: Each invoice statement for Post Charges
shall specify the amount due in respect of Services provided during the
relevant month and not contained in the invoice statement for Prior
Charges for such month as follows:-
(a) the charge for Continuous Production Services not charged under
sub-section 2.2(a) above;
(b) the charge for Ad Hoc Production Services;
(c) the charge for Consultancy Services and Development Services not
charged under sub-section 2.2(d) above;
(d) the charge for Non-Menu Services;
(e) any Third Party Costs together with the associated Handling
Charge;
(f) any charges for Services provided during such month requested by
the Director or his staff under Service Line 9 (Service to the
Director General of Electricity Supply); and
(g) any charges for items expressly stated to be otherwise recoverable
"in accordance with the Charging Procedure".
2.5 Disputes: The Contract Manager shall raise, in writing, any concerns in
relation to any such invoice statements as are referred to in
sub-section 2.1 or 2.3 above within five working days of receipt of the
same, but shall not be precluded from raising any such concerns at any
later stage. If any concerns are not settled by the date the invoices
are required to be despatched to Pool Members, such invoices may be
despatched by the Settlement System Administrator on the basis it
reasonably believes to be correct insofar as they relate to Prior
Charges or Post Charges which are not disputed by the Contract Manager.
Any Prior Charges or Post Charges which are believed in good faith to
be wrong by the Contract Manager and continue to be disputed in good
faith may not be included in any invoice until the amount outstanding
has been settled between the Settlement System Administrator and the
Contract Manager. Where, after investigation, it is agreed between the
Contract Manager and the Settlement System Administrator that the
amount disputed has in fact been correctly calculated by the Settlement
System Administrator, the Settlement System Administrator shall have
the right to charge interest on such Prior Charges or Post Charges in
accordance with and on the basis set out in sub-section 3.3 below from
the date upon which they would have been due for payment if undisputed.
Any adjustment following settlement of outstanding concerns will be
made through the next invoice issued under this Part.
2.6 Invoices to Pool Members: The Settlement System Administrator shall send
each Pool Member an invoice:-
(a) in respect of an invoice for Prior Charges, no later than the
first day of the month prior to the month in respect of which the
relevant charges are to be recovered; and
(b) in respect of an invoice for Post Charges, no later than ten days
after such statement is sent to the Contract Manager,
in each case for an amount determined in accordance with Part K.
2.7 Resignation or removal of the Settlement System Administrator: Where
the Settlement System Administrator resigns in accordance with Section
14 of Schedule 4 or is removed in accordance with Section 17 of
Schedule 4, the Settlement System Administrator shall be responsible
for all Transition Costs.
Accordingly:-
(a) Orders placed by Pool Members cannot be used to defray Transition
Costs; and
(b) the Settlement System Administrator shall not include any
Transition Costs in any future invoice statements.
3. PAYMENTS
3.1 Payments by Pool Members: Pool Members shall settle any invoices
delivered to them pursuant to Section 2 above on, and the due date for payment
shall be:-
(a) in the case of an invoice for Prior Charges, the last working day
of the month prior to the month in respect of which the charges
relate; and
(b) in the case of an invoice for Post Charges, the last working day
of the month in which the invoice is delivered to Pool Members.
All amounts shall be paid in sterling in cleared funds and in full
without set-off or counter claim, withholding or deduction of any
kind whatsoever but without prejudice to any other remedy. All
charges are exclusive of United Kingdom Value Added Tax which
shall be added to such charges, if applicable.
3.2 Disputes: If there is any dispute regarding charges in any month, a
Pool Member may not withhold payment of any invoiced amount but, for
the avoidance of doubt, may refer such dispute to arbitration in
accordance with Clause 83 following payment.
3.3 Interest on non-payment: If any amount due to the Settlement System
Administrator is not received on the due date the Pool Member is
required to pay such amount, such Pool Member shall pay interest to the
Settlement System Administrator on such amount from and including the
date of default up to but excluding the date of actual payment (after
as well as before judgment) at the rate which is 4 per cent. per annum
above the base rate from time to time during each period of default of
National Westminster Bank plc.
3.4 Payment of charges: Each Pool Member shall pay its due proportion of
the Settlement System Administrator's charges for each SSA Accounting Period
determined in accordance with Part K.
4. ALLOCATION OF CHARGES
4.1 Allocation: The Settlement System Administrator shall allocate its
charges amongst Pool Members in accordance with Part K.
4.2 New and former Pool Members: Any Pool Member which is a Pool Member for
part only of any month shall pay charges on an interim basis of such
amount apportioned on a daily basis for each day that it was a Pool
Member during that month on the basis of the allocation of charges set
out in Part K. Adjustments to charges on all Pool Members as a result
of existing Pool Members leaving or new Pool Members joining will be
set out in the invoice published for the Post Charges for the relevant
month whereupon the Pool Members and/or former Pool Members shall be
required to pay such additional amount or shall be entitled to such
reimbursement.
PART K
ALLOCATION OF CHARGES
1. THE SETTLEMENT SYSTEM ADMINISTRATOR'S CHARGES
1.1 Payment of Total Sum Due: Each Pool Member shall be obliged to pay the
amount allocated to it in accordance with this Part K. The total
aggregate amount allocated to all Pool Members in respect of any month
shall equal the Total Sum Due in respect of such month.
1.2 Allocation of Total Sum Due: The Total Sum Due in respect of each
month shall be allocated amongst Pool Members as follows:-
(a) first, each Pool Member:-
(i) shall pay the costs (if any), as detailed in the
relevant invoice, associated with any change to the
Software necessitated by such Pool Member's request
for:-
(A) data from Settlement additional to that which is
generally provided to other Pool Members of the same class; or
(B) for reporting of data in a format different
from that in which data are generally
provided to other Pool Members of the same
class
(which costs shall, in the first SSA Accounting Period
that they are charged to such Pool Member, have added
to them a single lump sum payment for maintenance
equal to 40 per cent. of the costs of such charge, as
reasonably determined by the Settlement System
Administrator);
(ii) shall pay the costs (if any and as far as the same are
directly referable to such Pool Member) for the use by
such Pool Member of electronic mail, the provision and
maintenance of telecommunication circuits from data
collector outstations and any other services procured
or provided by the Settlement System Administrator
which are directly referable to such Pool Member; and
(iii) if it is a Supplier, shall pay its Supplier's Second
Tier Charge for that month;
(b) secondly:-
(i) each Generator shall pay (pound)500 (or such other
amount as the Executive Committee and the Settlement
System Administrator may agree) for each of its
Generating Units in respect of which standing data
have been submitted; and
(ii) each Pool Member shall pay (pound)750 (or such other
amount as the Executive Committee and the Settlement
System Administrator may agree) for each Metering
System in respect of which it is the Registrant;
(c) thirdly, but only in respect of the first month in an SSA
Accounting Period in which a Generator or Supplier is a Pool
Member:-
(i) subject as provided in paragraphs (ii) to (vii) inclusive
below, each Pool Member shall pay an annual membership fee as follows:-
Category Fee
(A) Small
(1) A Supplier with a maximum demand at any time (pound) 9,000
during such year (as reasonably
determined by the Executive Committee)
of less than 200MW or a Generator with
an aggregate Registered Capacity of
less than 50MW (other than a Supplier
or Generator referred to in (2) below)
(2) A Supplier with a maximum demand at any time (pound) 2,500
during such year (as reasonably determined by
Executive Committee) of less than 200MW or a
Generator with aggregate Registered Capacity
of less than 50MW, in either case which
requires to have delivered to it only its own
trading information
(B) Intermediate
A Supplier with a maximum demand at
any time (pound)20,000 during such
year (as reasonably determined by the
Executive Committee) of 200MW or more
up to (but excluding) 2000MW or a
Generator with aggregate Registered
Capacity of 50MW or more up to (but
excluding) 1000MW
(C) Large
A Supplier with a maximum demand at
any time (pound)45,000 during such
year (as reasonably determined by the
Executive Committee) of 2000MW or more
or a Generator with aggregate
Registered Capacity of 1000MW or more
(ii) any Pool Member which is both a Generator and a
Supplier shall pay only one membership fee, being that
fee which is the greater of its annual membership fee
as a Generator and its annual membership fee as a
Supplier (and, if both are the same amount, such Pool
Member shall pay only its membership fee as a
Generator): such fee shall continue to be payable
regardless of any change during the relevant year in
the capacity(ies) in which such Pool Member
participates as a Pool Member;
(iii) unless otherwise resolved by the Executive Committee
with respect to the relevant Pool Member, a Pool
Member with no demand or generation shall not pay any
membership fee and, if the Executive Committee shall
so resolve, shall pay only that membership fee
referable to a Pool Member falling within the relevant
sub-category of paragraph (i)(A) above;
(iv) if, in its reasonable opinion, the Executive Committee
considers:-
(A) any Pool Member (not being a Pool Member
referred to in paragraph (iii) above) to be
insignificant in terms of generation or
demand, it may waive the membership fee for
such Pool Member until further notice; and
(B) if inequitable or otherwise inappropriate to
levy the full amount of the membership fee
that would otherwise be payable by any Pool
Member, it may waive all or part of such fee
on such terms and for such period(s) as it
reasonably sees fit;
(v) (A) any Pool Member falling within
sub-category (2) of paragraph (i)(A) above
which wishes to receive data by electronic
mail shall be required to pay an additional
monthly membership fee of one-twelfth of
(pound)800; and
(B) any Pool Member which wishes to receive data
by courier shall be required to pay an
additional monthly membership fee of
one-twelfth of (pound)1,000;
(vi) the Executive Committee may from time to time amend
the categories of membership and the fees (with the
consent of the Settlement System Administrator, such
consent not to be unreasonably withheld or delayed);
(vii) the charges referred to in paragraph (b) above and in
this paragraph (c) shall be adjusted in relation to
each Pool Member, Generator or Supplier, as the case
may be, by reference to the number of days during each
year for which such Party was a Pool Member and (where
appropriate) the number of Generating Units or
Metering Systems allocated to it during such period;
(d) fourthly, 100 per cent. of the balance of the Total Sum Due
during any month not recovered pursuant to paragraphs (a) to
(c) (inclusive) above shall be allocated amongst all Pool
Members during such month by reference to the Contributory
Shares of each Pool Member.
For this purpose, each Pool Member's due proportion
of the charges shall be assessed first by reference to the
then latest Contributory Shares of all Pool Members calculated
by the Executive Committee for the period and each part
thereof to which such charges relate (or, if and to the extent
that the charges relate to a period for which no such
calculation has yet been made, by reference to the then most
recently calculated current Contributory Shares of all Pool
Members) and shall thereafter be readjusted from time to time
for each day within the relevant period following changes to
the Contributory Shares of Pool Members for all or any part of
such period or (as the case may be) following the calculation
of the Contributory Shares for such period.
Provided that, in calculating the balance of the Total Sum Due
payable by each Pool Member in any month, the annual
membership fee payable by each Pool Member in accordance with
paragraph (c) above shall be divided by the number of complete
months in the SSA Accounting Period remaining after the date
of payment of such annual membership fee and the resultant
figure (after rounding to the nearest (pound)1) shall be
credited to the relevant Pool Member for offset against its
proportionate share of the Total Sum Due for each such
remaining month.
1.3 Prima facie evidence: The Settlement System Administrator's
determination of the allocation of all costs during any month
shall, in the absence of
manifest error, be prima facie evidence thereof.
1.4 Contributory Shares: The Settlement System Administrator shall
advise each Pool Member of its Contributory Share and how such
Contributory Share is calculated.
SCHEDULE 5
Form of Admission Application
The Executive Committee for the
Pooling and Settlement System in England and Wales
Dear Sir,
1. We [insert full legal name and address of registered/principal office of
applicant] refer to the Pooling and Settlement Agreement for the electricity
industry in England and Wales dated 30th March, 1990 (as amended, varied,
supplemented, modified or suspended, the "Pooling and Settlement Agreement").
2. Unless the context otherwise requires, words and expressions defined in the
Pooling and Settlement Agreement shall bear the same meanings respectively when
used herein.
3. We hereby apply to be admitted as an additional party to the Pooling and
Settlement Agreement pursuant to Clause 3 thereof. We wish to participate
as a [[Generator]/[Supplier]/[Externally Interconnected Party]]*.
4. We confirm that:-
(A)**(i) we have been granted and have in full force and effect a
Generation Licence or we have made and have current an
application for such a licence; or
(ii) we are exempted from the obligation to hold a Generation Licence
by reason of an exemption under section 5 of the Act; or
(iii)we have entered into an Interconnection Agreement under which we
will, subject to becoming a Pool Member, have the right (whether
alone or together with others) then or at any time in the future
to use all or any part of an External Interconnection for the
delivery of electricity to the NGC Transmission System; or
(iv) we are acting as the agent for a person generating or proposing
to generate electricity on terms whereby we have the exclusive
right to all the output of those Generating Unit(s) of such
person and in respect of which we have been appointed agent;
(B)*** (i) we have been granted and have in full force and effect a
PES Licence or a Second Tier Supply Licence or we have made and
have current an application for such a licence; or
(ii) we are exempted from the obligation to hold a PES
Licence or (as the case may be) a Second Tier Supply
Licence by reason of an exemption under section 5 of
the Act; or
(iii) we have entered into an Interconnection Agreement
under which we will, subject to becoming a Pool
Member, have the right (whether alone or together with
others) then or at any time in the future to use all
or any part of an External Interconnection for the
taking of electricity from the NGC Transmission
System;
(C) (i) we are [or [ ] (being our agent and a person which
the Executive Committee has confirmed in writing to us
is acceptable to the Executive Committee, a copy of
which confirmation is enclosed) is]* registered for
United Kingdom Value Added Tax purposes;
(ii) we have [or our agent has]* so arranged matters that
any payment receivable by us under or pursuant to the
Pooling and Settlement Agreement will constitute for
United Kingdom Value Added Tax purposes the
consideration for a taxable supply made in the United
Kingdom by us [or our agent]* as a taxable person in
the United Kingdom in the course of furtherance of a
business;
(iii) we have [or our agent has]* so arranged matters that
any payment required to be made by us under or
pursuant to the Pooling and Settlement Agreement will
constitute for United Kingdom Value Added Tax purposes
the consideration for a taxable supply made in the
United Kingdom to us [or our agent]*; and
(iv) in any case where any electricity has been or will be
generated or produced by us outside the United
Kingdom, we have [or our agent has]* so arranged
matters that any import thereof for the purposes of or
otherwise in connection with the Pooling and
Settlement Agreement will constitute for United
Kingdom Value Added Tax purposes an importation or
acquisition of goods solely by us [or our agent]* and
so not by any other Party.
5. We hereby represent and warrant to the Executive Committee (for itself and on
behalf of all the Parties) that:-
(A) we are duly organised and validly existing under the laws of the
jurisdiction of our organisation or incorporation;
(B) we have the power to execute and deliver our Accession Agreement
and any other documentation relating to that Agreement or the
Pooling and Settlement Agreement and such other agreements as are
required thereby and to perform our obligations hereunder or
thereunder and we have taken all necessary action to authorise
such execution, delivery and performance; and
(C) such execution, delivery and performance do not violate or
conflict with any law applicable to us, any provision of our
constitutional documents, any order or judgment of any court or
other agency of government applicable to us or any of our assets
or any contractual restriction on or affecting us or any of our
assets.
We confirm that these representations and warranties will also be true
and correct in all material respects at the date of our admission as a New
Party.
6. We enclose the application fee of (pound)[ ].****
7. We accept and agree to be bound by the terms of Clause 3 of the
Pooling and Settlement Agreement.
Yours faithfully,
duly authorised for and on behalf of
- -----
* Complete/delete as appropriate.
** Include paragraph (A) if applying to be admitted as a Generator.
*** Include paragraph (B) if applying to be admitted as a Supplier.
**** Insert current application fee prescribed by the Executive Committee.
SCHEDULE 6
Form of Pool Membership Application
The Executive Committee for the
Pooling and Settlement System in England and Wales.
Dear Sir,
1. We [insert full legal name and address of registered/principal office of
applicant] refer to the Pooling and Settlement Agreement for the electricity
industry in England and Wales dated 30th March, 1990 (as amended, varied,
supplemented, modified or suspended, the "Pooling and Settlement Agreement").
2. Unless the context otherwise requires, words and expressions defined in the
Pooling and Settlement Agreement shall bear the same meanings respectively when
used herein.
3. We hereby apply to be admitted as a Pool Member pursuant to Clause 8.2 of the
Pooling and Settlement Agreement. We wish to participate as a
[[Generator]/[Supplier]/[and an External Pool Member]]*.
4. We confirm that:-
(A)**(i) we have been granted and have in full force and effect a
Generation Licence; or
(ii) we are exempted from the obligation to hold a Generation Licence
by reason of an exemption under section 5 of the Act; or
(iii)we have entered into an Interconnection Agreement under which we
will, subject to becoming a Pool Member, have the right (whether
alone or together with others) then or at any time in the future
to use all or any part of an External Interconnection for the
delivery of electricity to the NGC Transmission System; or
(iv) we are acting as the agent for a person generating or proposing
to generate electricity on terms whereby we have the exclusive
right to all the output of those Generating Unit(s) of such
person and in respect of which we have been appointed agent;
(B)*** (i) we have been granted and have in full force and effect a
PES Licence or a Second Tier Supply Licence; or
(ii) we are exempted from the obligation to hold a PES Licence or (as
the case may be) a Second Tier Supply Licence by reason of an
exemption under section 5 of the Act; or
(iii)we have entered into an Interconnection Agreement under which we
will, subject to becoming a Pool Member, have the right (whether
alone or together with others) then or at any time in the future
to use all or any part of an External Interconnection for the
taking of electricity from the NGC Transmission System;
(C) with effect from the date of our admission as a Pool Member, we
will accede as a party to the Funds Transfer Agreement and to the
Deed of Indemnity in favour (inter alia) of the Chief Executive
in accordance with their respective terms;
(D) on or before our admission as a Pool Member, we will open a
Settlement Account and comply with all other applicable
requirements of Schedule 11 to the Pooling and Settlement
Agreement;
(E) (i) we are [or [ ] (being our agent and a person which the
Executive Committee has confirmed in writing to us is acceptable
to the Executive Committee, a copy of which confirmation is
enclosed) is]* registered for United Kingdom Value Added Tax
purposes;
(ii) we have [or our agent has]* so arranged matters that
any payment receivable by us under or pursuant to the
Pooling and Settlement Agreement will constitute for
United Kingdom Value Added Tax purposes the
consideration for a taxable supply made in the United
Kingdom by us [or our agent]* as a taxable person in
the United Kingdom in the course of furtherance of a
business;
(iii) we have [or our agent has]* so arranged matters that
any payment required to be made by us under or
pursuant to the Pooling and Settlement Agreement will
constitute for United Kingdom Value Added Tax purposes
the consideration for a taxable supply made in the
United Kingdom to us [or our agent]*; and
(iv) in any case where any electricity has been or will be
generated or produced by us outside the United
Kingdom, we have [or our agent has]* so arranged
matters that any import thereof for the purposes of or
otherwise in connection with the Pooling and
Settlement Agreement will constitute for United
Kingdom Value Added Tax purposes an importation or
acquisition of goods solely by us [or our agent]* and
so not by any other Party; and
(F)****
Option 1
we have entered into and have in full force and effect (or,
prior to our admission as a Pool Member, will enter into and
have in full force and effect) all appropriate Connection
Agreements;
- or -
Option 2
all appropriate Connection Agreements with [ ], being the relevant
Externally Interconnected Party, in relation to [ ], being the
relevant External Interconnection, are in full force and effect.
5. We enclose:-
[insert details of evidence in support of fulfilment of the other Pool
Membership Conditions set out in Clause 8.3 of the Pooling and
Settlement Agreement].
Yours faithfully,
-------------------------------
duly authorised for and on behalf of
[insert full legal name of the applicant]
- ---------------------------------------------------------------------------
* Complete/delete as appropriate.
** Include paragraph (A) if applying to be admitted as a Generator.
*** Include paragraph (B) if applying to be admitted as a Supplier.
**** Include Option 2 if applying to be admitted as an External Pool
Member. Otherwise include Option 1.
SCHEDULE 7
Form of Escrow Agreement
THIS AGREEMENT is made on [ ]
BETWEEN:-
(1) NGC SETTLEMENTS LIMITED (registered number 2444282) whose registered
office is situate at National Grid House, Sumner Street, London SE1 9JU
for itself and on behalf of the Pool Members (as defined in the Pooling
and Settlement Agreement hereinafter referred to) acting through the
Executive Committee (as hereinafter defined) (the "Settlement System
Administrator", which expression shall include the Settlement System
Administrator's successors in title); and
(2) THE NATIONAL COMPUTING CENTRE LIMITED (registered number 881195) whose
registered office is situate at Oxford Road, Manchester M1 7ED (the
"Custodian"). ---------
WHEREAS:-
(A) by various agreements (the "Pooling and Settlement Arrangements")
details of which are set out in Schedule A NGC Settlements Limited has
agreed to act as Settlement System Administrator and operate a
settlements system requiring the use of certain computer package(s)
comprising computer programs and related systems;
(B) certain technical information and documentation describing or otherwise
relating to the said computer programs and related systems is required
for the understanding, maintaining, modifying and correcting of the
said computer programs and related systems; and
(C) the Settlement System Administrator acknowledges that in certain
circumstances a successor Settlement System Administrator may require
possession of the said technical information and documentation,
up-to-date and in good order,
NOW IT IS HEREBY AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement:-
"Director" means the Director General of Electricity Supply;
"Executive Committee" means the Executive Committee established under
the Pooling and Settlement Arrangements and "Committee Member" means a
member of the Executive Committee;
"Material" means the source code and load (machine executable) modules
and the technical information, manuals and other documentation
described in Schedule B;
"Modifications" means the source code and load (machine executable)
modules and the technical information, manuals and other documentation
relating to all modifications, updates and changes to the Material as
accepted from time to time by the Executive Committee for use in the
settlement process; and
"Receptacle" means the receptacle to contain a copy of the Material
pursuant to Clause 2.2 and copies of all Modifications delivered
pursuant to Clause 3.1.
1.2 Unless the context otherwise requires, words and expressions defined in the
Pooling and Settlement Arrangements shall bear the same meanings
respectively when used herein.
2. DEPOSIT
2.1 Forthwith upon execution and delivery of this Agreement, the Settlement
System Administrator will deposit and the Custodian will accept as
custodian for the Pool Members (acting through the Executive Committee)
a copy of the Material.
2.2 The Custodian will place the copy of the Material in the Receptacle.
2.3 The Custodian shall bear no obligation or responsibility to any person
to determine the existence, relevance, completeness, accuracy or any
other aspect of the Material and/or Modifications. The Custodian shall
have no responsibility to determine that whatever is deposited or
accepted by it for deposit is or is not Material and/or Modifications.
3. MODIFICATIONS
3.1 Subject to and in accordance with the Pooling and Settlement
Arrangements, the Settlement System Administrator will deposit a copy
of all Modifications with the Custodian within 28 days of such
Modifications being accepted by the Executive Committee.
3.2 The Custodian shall as soon as possible confirm receipt of all
Modifications in writing to the Executive Committee and the Settlement
System Administrator.
3.3 The Custodian will place a copy of all Modifications in the Receptacle.
4. RELEASE
4.1 The Custodian shall forthwith release to any successor Settlement
System Administrator appointed pursuant to and in accordance with the
Pooling and Settlement Arrangements the copy(ies) of the Material
and/or all the Modifications upon the written request of the Executive
Committee provided that the Settlement System Administrator has
resigned or has been removed as Settlement System Administrator under
the Pooling and Settlement Arrangements and has not complied with its
obligations relevant to the Material under Clauses 28.1.1 and 28.1.4 of
the Pooling and Settlement Agreement for the Electricity Industry in
England and Wales dated 30th March, 1990 (as amended, varied,
supplemented, modified or suspended from time to time, the "Pooling and
Settlement Agreement").
4.2 Any written request of the Executive Committee referred to in Clause
4.1 shall be in the form of a statutory declaration by one or more
Committee Members setting out the grounds on which release is sought
and exhibiting such documentation in support thereof as the Custodian
shall reasonably require.
4.3 Where any dispute shall arise as to the occurrence of the event set out
in Clause 4.1, such dispute will be referred at the instance of either
the Settlement System Administrator, the Custodian or the Executive
Committee to the Director whose decision shall be final and binding.
5. CONFIDENTIALITY
The Custodian agrees to maintain all information and/or documentation
coming into its possession or to its knowledge under this Agreement in
strictest confidence and secrecy, not to make use thereof other than
for the purposes of this Agreement and not to disclose or release it
other than in accordance with the terms hereof.
6. FEES
The Settlement System Administrator will pay the Custodian's fees as
detailed in Schedule C as amended from time to time by written
agreement between the parties. Such fees shall be invoiced monthly and
paid within one month of the date of the invoice.
7. TERMINATION
7.1 This Agreement shall terminate upon the release of the copy of the Material
and copies of all Modifications in accordance with Clause 4.1.
7.2 This Agreement may be terminated by the Custodian by giving not less than
90 days' written notice to both the Executive Committee and the Settlement
System Administrator.
7.3 This Agreement may be terminated by the Settlement System Administrator
giving not less than 90 days' written notice to the Custodian provided
that it may not terminate this Agreement without the consent of the
Executive Committee first being given in writing unless it has been
removed or has resigned as Settlement System Administrator and has
complied with its obligations relevant to the Material under Clauses
28.1.1 and 28.1.4 of the Pooling and Settlement Agreement.
7.4 Upon termination under the provisions of Clause 7.2 or 7.3 the
Custodian will deliver the copy(ies) of the Material and all the
Modifications to the Settlement System Administrator (unless jointly
instructed to the contrary by the Settlement System Administrator and
the Executive Committee).
7.5 Termination of this Agreement for whatever reason will not relieve the
Custodian from the obligations of confidentiality contained in Clause 5.
8. TESTS
The Executive Committee shall be entitled to require the Custodian to
carry out such tests in the presence of the Settlement System
Administrator which in the reasonable opinion of the Custodian would
reasonably establish that the Material and Modifications contain true
and accurate versions of the source codes and load (machine executable)
modules in use at the time of testing in the settlement process. Any
reasonable charges and expenses incurred by the Custodian in carrying
out such tests will be paid by the Settlement System Administrator.
9. OBSOLETE MATERIAL AND MODIFICATIONS
9.1 The Executive Committee shall be entitled to review from time to time
the Material and Modifications on deposit with the Custodian. Where the
Executive Committee is satisfied that any part of the Material or
Modifications on deposit has ceased to be used in the settlement
process and will be of no further use, whether directly or indirectly,
it may request the Custodian to release any such part to the then
current Settlement System Administrator. Such request shall be in
writing and identify the part or parts of the Material or Modifications
to be released by the Custodian and state that the reason for such
release is that such part or parts is or are no longer of use. The
Custodian shall release such part or parts to the then current
Settlement System Administrator as soon as conveniently possible after
receipt of any such written request from the Executive Committee.
9.2 Notwithstanding the release of any part or parts of the Material or
Modifications to the Settlement System Administrator pursuant to Clause
9.1, in the event that any such released Material or Modifications or
copies thereof are subsequently used in the settlement process such
Material or Modifications shall be placed on deposit and held in escrow
pursuant to this Agreement on the same terms and conditions as any
Modification.
10. NOTICES
10.1 Any notice or other communication to be given by one person to another
person under, or in connection with the matters contemplated by, this
Agreement shall be addressed to the recipient and sent to the address,
telex number or facsimile number or such other person given in this
Agreement for the purpose and marked for the attention so given or to
such other address, telex number and/or facsimile number and/or marked
for such other attention as such other person may from time to time
specify by notice given in accordance with this Clause to the person
giving the relevant notice or other communication to it.
10.2 Any notice or other communication to be given to the Settlement System
Administrator shall be given to:-
Address: Fairham House,
Green Lane,
Clifton,
Nottingham NG11 9LN
Telex No: N/A
Facsimile No: 0602 456728
Attention: General Manager
Any notice or other communication to be given to the Custodian shall be given
to:-
Address: Oxford House,
Oxford Road,
Manchester M1 7ED
Telex No: 66 8962
Facsimile No: 061-228 2579
Attention: Legal Department
Any notice or other communication to be given to the Executive Committee shall
be given to:-
Address: Chief Executive (Pooling and Settlement)
30 Millbank,
London SW1P 4RD
Telex No: N/A
Facsimile No: 071-233 8254
Attention: Chief Executive
10.3 Any notice or other communication to be given by one person to another
person under, or in connection with the matters contemplated by, this
Agreement shall be in writing and shall be given by letter delivered by
hand or sent by first class prepaid post (airmail if overseas) or telex
or facsimile, and shall be deemed to have been received:-
10.3.1 in the case of delivery by hand, when delivered; or
10.3.2 in the case of first class prepaid post, on the second day
following the day of posting or (if sent airmail overseas or
from overseas) on the fifth day following the day of posting;
or
10.3.3 in the case of telex, on the transmission of the automatic
answer-back of the addressee (where such transmission occurs
before 1700 hours on the day of transmission) and in any other
case on the day following the day of transmission; or
10.3.4 in the case of facsimile, on acknowledgement by the
addressee's facsimile receiving equipment (where such
acknowledgement occurs before 1700 hours on the day of
acknowledgement) and in any other case on the day following
the day of acknowledgement.
11. COUNTERPARTS
This Agreement may be executed in counterpart by the parties on
separate counterparts each of which when executed and delivered shall
constitute an original but which shall together constitute one and the
same instrument.
12. DISPUTE RESOLUTION
12.1 Save where expressly stated in this Agreement to the contrary, and
subject to any contrary provision of the Act or any Licence or the
rights, powers, duties and obligations of the Director or Secretary of
State under the Act, any Licence or otherwise howsoever, any dispute or
difference of whatever nature howsoever arising under, out of or in
connection with this Agreement between the parties shall be and is
hereby referred to arbitration pursuant to the arbitration rules of the
Electricity Arbitration Association in force from time to time.
12.2 Whatever the nationality, residence or domicile of either party and
wherever the dispute or difference or any part thereof arose the law of
England shall be the proper law of any reference to arbitration
hereunder and in particular (but not so as to derogate from the
generality of the foregoing) the provisions of the Arbitration Acts
1950 (notwithstanding anything in Section 34 thereof) to 1979 shall
apply to any such arbitration wherever the same or any part of it shall
be conducted.
13. GOVERNING LAW
This Agreement shall be governed by, and construed in all respects in
accordance with, English law.
SCHEDULE A
Details of the Pooling and Settlement Arrangements
(A) Pooling and Settlement Agreement for the Electricity Industry in
England and Wales dated 30th March, 1990 and made between the Founder
Generators named therein (1), the Founder Suppliers named therein (2),
NGC Settlements Limited as Settlement System Administrator (3), Energy
Pool Funds Administration Limited as Pool Funds Administrator (4), The
National Grid Company plc as Grid Operator and Ancillary Services
Provider (5) and Scottish Power plc and Electricite de France, Service
National as Externally Interconnected Parties(6).
(B) Initial Settlement Agreement for the Electricity Industry in England
and Wales dated 30th March, 1990 and made between the Founder
Generators named therein (1), the Founder Suppliers named therein (2),
NGC Settlements Limited as Settlement System Administrator (3), Energy
Pool Funds Administration Limited as Pool Funds Administrator (4), The
National Grid Company plc as Grid Operator and Ancillary Services
Provider (5) and Scottish Power plc and Electricite de France, Service
National as Externally Interconnected Parties (6).
(C) Two Supplemental Agreements relating to the Initial Settlement
Agreement and the Pooling and Settlement Agreement for the Electricity
Industry in England and Wales, each dated as of 30th June, 1990 and
made between the Founder Generators named therein (1), the Founder
Suppliers named therein (2), NGC Settlements Limited as Settlement
System Administrator (3), Energy Pool Funds Administration Limited as
Pool Funds Administrator (4), The National Grid Company plc as Grid
Operator and Ancillary Services Provider (5) and Scottish Power plc and
Electricite de France, Service National as Externally Interconnected
Parties (6).
(D) Third Supplemental Agreement relating to the Initial Settlement
Agreement and the Pooling and Settlement Agreement for the Electricity
Industry in England and Wales dated as of 15th October, 1990 and made
between the Founder Generators named therein (1), the Suppliers named
therein (2), NGC Settlements Limited as Settlement System Administrator
(3), Energy Pool Funds Administration Limited as Pool Funds
Administrator (4), The National Grid Company plc as Grid Operator and
Ancillary Services Provider (5) and Scottish Power plc and Electricite
de France, Service National as Externally Interconnected Parties (6).
(E) Fourth Supplemental Agreement relating to the Initial Settlement
Agreement and the Pooling Settlement Agreement for the Electricity
Industry in England and Wales dated as of 15th October, 1990 and made
between the Founder Generators named therein (1), the Suppliers named
therein (2), NGC Settlements Limited as Settlement System Administrator
(3), Energy Pool Funds Administration Limited as Pool Funds
Administrator (4), The National Grid Company plc as Grid Operator and
Ancillary Services Provider (5) and Scottish Power plc and Electricite
de France, Service National as Externally Interconnected Parties (6).
SCHEDULE B
The Material
SYSTEM REF ITEM
SMP 101 Source Code - Hardcopy
102 Source Code - Tape
103 Executable Code - Tape
104 DCL - Hardcopy
105 DCL - Tape
106 User Requirement Specification
107 Design Specification
108 Test Plan
109 Program Upgrades Test Specification
110 Acceptance Test Schedule
111 Test Schedule(s)
112 Test Specification
113 User Guide
114 Quality Assurance
115 Licensed software list
116 Licensed software licences
117 Licensed software system tables
118 Acceptance certificates
CDCS 201 Source Code - Tape: GRID02
202 Source Code - Hardcopy
203 Executes clists
204 DB2 Database Request Modules
205 Declaration Libraries
206 Compilation JCL
207 Compilation JCL - Hardcopy
208 Load Modules
209 Menu Library
210 Skeleton Execution JCL
211 Skeleton Execution JCL - Hardcopy
212 Backup JCL and clists
213 System Test Specification
214 User Acceptance Test Specification
215 User Requirement Specification
216 Logical Design Specification
217 User Guide
218 First Line Support Procedures
219 Licensed software list
220 Licensed software certificates
221 Compilation Instructions
222 Special Fixes List
223 Licensed software system tables
224 Acceptance certificates
L&G 301 Source Code - Hardcopy
302 Source Code - 3.5 Diskette
303 DOS Batch Files - Hardcopy
304 DOS Batch Files - 3.5 Diskette
305 Executables - 3.5 Diskette
306 System Documentation
307 Documentation Source Files (VMS Backup save set)
308 Acceptance Test Specification
309 Guide for 2nd-line Maintenance
310 CEGB(NGD) Power Station Collectors Manual
311 Licensed software list
312 Licensed software certificates
313 Compilation Instructions
314 Licensed software system tables
315 Acceptance certificates
LOLP 401 Source Code - Hardcopy
402 Source Code - Disk
403 Object Code - Disk
404 Batch Files - Hardcopy
405 Batch Files - Disk
406 Test Plan and Specification
407 Acceptance Test Data Ph1
408 Test Schedule FAT Ph1
409 Test Schedule SAT Ph1
410 Test Schedule SAT Overview Ph1
411 Format Spec. LOLP to Sys Ops.
412 User Guide
413 User Requirements Spec.
414 Functional Spec.
415 Basic Info. Flow
416 Statement of Principles
417 Project Report
418 Op. Procedures Manual
419 Test Plan LOLP 5.0
420 System Test Execution Vol. 1-4
421 LOLP PEC site Acc. Test Review
422 Regression Test Matrix
423 Model Parameters - Vesting Day Vals
424 Promod Vol. 1-2
425 Software Release 4.7
426 S/W Install and Update Guidelines
427 Software Releases 4.0 to 4.8
428 Licensed software list
429 Licensed software licences
430 Acceptance certificates
SD-SCICON S2/SC1 501 Source Code Fortran, ProFortran, SQL Forms: HCPY
502 Source Code Fortran, ProFortran, SQL Forms: TPE
503 Executable Fortran, ProFortran, SQL Forms: TPE
504 Executable DCL, SQL-PLUS, SQL-RPT: (inc *.MMS)
505 Acceptance Test Specification
506 Test Schedules
507 Test Schedule SAT
508 Op Subsystem Design Specification
509 CR Subsystem Design Specification
510 SY Subsystem Design Specification
511 DT Subsystem Design Specification
512 Level 1 Design Specification
513 CSM Team Guide
514 Process Leader User Guide
515 Training Course - Input Clerks
516 Training Course - Process Leader
517 Training Course - Team Leader
518 Training Course - Data Trans Clerk
519 Input Clerk User Guide
520 Team Leader User Guide
521 Data Trans Clerk User Guide
522 Auditor User Guide
523 Work Breakdown Structure
524 Functional Specification
525 Performance Scoping Study
526 Regression Testing Matrix
527 Migration From SID to 2.21
528 Review of Initial Pool Rules vs Func. Spec.
529 PMW Project Standards
530 Implementation Guide
531 System Build Instructions
532 User Requirements Specification
533 Acceptance Cert: Functional Spec.
534 Acceptance Cert: Acceptance Test Spec.
535 Acceptance Cert: Test Schedules and Data
536 Licensed software list
537 Licensed software certificates
GOALPOST 601 Source Code - Hardcopy
602 Source Code - Tape
603 Executable - Tape
604 Application File (JCL) - Tape
605 Test Document
606 Module Design Specification
607 User Manual
608 Quality Assurance Plan
609 User Requirements Specification
610 Licensed software list
611 Licensed software certificates
612 Compilation Instructions
613 Licensed software system tables
614 Acceptance certificates
GOAL 701 Source Code - Hardcopy
702 Source Code - Tape
703 Executable Code - Tape
704 JCL - Hardcopy
705 JCL - Tape
SCHEDULE C
The Custodian's fees
1. Initial fee - (pound)2,000
2. Annual fee - (pound)500
3. Release fee - (pound)500 plus reasonable expenses
4. Storage fee -(pound)20 per cubic foot per annum (reduced proportionately
for part of any year)
5. Update fee - (pound)100 per update
6. Additional work (testing, etc.) - normal senior consultancy rates from time
to time published by the Custodian.
All such fees are exclusive of VAT and are to be specified in reasonable detail
in each invoice by the Custodian.
IN WITNESS whereof this Agreement has been duly executed the day and year first
above written
As Settlement System Administrator
- ----------------------------------
(for itself and on behalf of the Pool Members
acting through the Executive Committee)
THE COMMON SEAL of )
NGC SETTLEMENTS LIMITED )
was hereunto affixed in the )
presence of:- )
Director
Director/Secretary
As Custodian
THE COMMON SEAL of )
THE NATIONAL COMPUTING CENTRE LIMITED was )
hereunto affixed in the presence of:- )
)
Director
Director/Secretary
SCHEDULE 8
[Not used].
SCHEDULE 9
The Pool Rules
The sequential page numbering is suspended for Schedule 9
and resumes at Schedule 10
SCHEDULE 10
Form of Resignation Notice
The Secretary of the Executive Committee for the
Pooling and Settlement System in England and Wales
(copied to:
(A) the Settlement System Administrator; and
(B) the Pool Funds Administrator).
Dear Sir,
We [insert full legal name and address of registered/principal office of
applicant] refer to the Pooling and Settlement Agreement for the electricity
industry in England and Wales dated 30th March, 1990 as amended, varied,
supplemented, modified or suspended (the "Pooling and Settlement Agreement").
Unless the context otherwise requires, words and expressions defined in the
Pooling and Settlement Agreement shall bear the same meanings respectively when
used herein.
We hereby give notice pursuant to Clause 8.7 of the Pooling and Settlement
Agreement that we are resigning as a Party with effect from the date falling 28
days after receipt by you of this Resignation Notice.
We confirm that, in giving this notice of resignation, we are not and will not
be in breach of any of the restrictions on resignation set out in Clause 8.8 of
the Pooling and Settlement Agreement.
We [enclose]/[confirm that we have already provided]* such notices (if any) as
are required to be given by us pursuant to the provisions of Part XV of the
Pooling and Settlement Agreement.
We acknowledge that our resignation as a Party is without prejudice to our
accrued rights and liabilities and any rights and liabilities which may accrue
to us in relation to the period during which we were a Party under the Pooling
and Settlement Agreement, the Funds Transfer Agreement or any agreement referred
to in Clause 8.8.1(c) of the Pooling and Settlement Agreement.
Yours faithfully,
---------------------------
duly authorised for and on behalf of
[insert full legal name of Party]
SCHEDULE 11
Billing and Settlement
PART 1: PRELIMINARY
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
1.2 Interpretation
PART 2: ESTABLISHMENT OF SYSTEMS
2. PAYMENTS CALENDAR
2.1 Preparation
2.2 Principles
2.3 Form
2.4 Default
2.5 Distribution
3. INFORMATION SYSTEMS
3.1 Provision of information
3.2 Communications Equipment
3.3 Authorised persons
4. BANKING SYSTEM
4.1 Funds Transfer Agreement
4.2 Establishment of Accounts
4.3 Rights and obligations under Funds Transfer Agreement
4.4 Settlement Account
4.5 Further information
4.6 Change of Settlement Account
4.7 Maintenance of Settlement Account and Settlement Bank Mandate
4.8 Details of Accounts
5. ESTABLISHMENT OF TRUSTS
5.1 Trusts
5.2 Trusts in respect of the Credit Facility
5.3 Rights of Pool Creditors other than the Ancillary Services
Provider
5.4 Rights of Ancillary Services Provider
5.5 Trusts in respect of Pool Reserve Assets
5.6 Overdue amounts
5.7 Shortfall
5.8 Providing Members' rights to funds
5.9 Funds not to be withdrawn
5.10 Providing Members' rights to withdraw funds
5.11 Waiver of Providing Members' rights
5.12 Pool Reserve Assets
5.13 Providing Members' rights and interests in the Pool Reserve
Account
5.14 Overpayments to be held on trust
5.15 Reimbursement of overpayments
5.16 Repayment of loans
5.17 No claim for breach of trust
6. POOL LEDGER ACCOUNTS
6.1 Maintenance of Pool Ledger Accounts
6.2 Ledger extracts
6.3 Certified copy extracts
6.4 Confidentiality
6.5 Information
6.6 Review of extracts
6.7 Dispute of accuracy
[Sections 7 to 14 (inclusive) not used]
PART 3: SECURITY COVER AND CREDIT MONITORING
15. SECURITY COVER
15.1 Provision of Security Cover
15.2 Letters of Credit
15.3 Cash deposit
15.4 Maintenance of Security Cover
15.5 Failure to supply Security Cover
15.6 Substitute Letter of Credit
16. CREDIT MONITORING
16.1 Determination of Security Cover
16.2 Criteria for provision of Security Cover
16.3 Six monthly variation
16.4 Review of Security Cover
16.5 Increase or Decrease of Security Cover
16.6 Notification in respect of Security Cover
16.7 Release from Security Cover Obligations
16.8 No liability for amount of Security Cover
PART 4: BILLING AND PAYMENT PROCEDURES
17. RECEIPT AND VERIFICATION OF INFORMATION
17.1 Receipt of Information from Settlement System Administrator
17.2 Information for each Settlement Day
17.3 Information - taking of electricity
17.4 Information - provision of electricity
17.5 Information - Ancillary Services Provider
17.6 Verification of Information
17.7 Deemed Verification
17.8 Rectification of Errors
17.9 Amounts in Advice Notes; Adjustments
17.10 Postponed Payment Date
17.11 Further notification
17.12 Payment by Pool Debtor
17.13 Liability several
18. ADVICE NOTES
18.1 Despatch of Advice Notes
18.2 Method of despatch
18.3 Content of Advice Notes
18.4 Interest
19. PAYMENT PROCEDURE
19.1 Instructions for payment
19.2 Pool Funds Administrator's responsibilities
19.3 Non-payment by Pool Member
19.4 Excess payments
19.5 Payment to Pool Creditors
19.6 Making good the Pool Reserve Account
19.7 Prohibition on transfers
19.8 Application of payments
19.9 Bank contacts
20. ALTERNATIVE PAYMENT PROCEDURE
20.1 Alternative Payment procedure
20.2 Pool Debtor to effect remittance
20.3 Receipt of remittance
20.4 Method of remittance
20.5 Notification of non-payment
20.6 Payment default
20.7 Late payment
20.8 Payments to Pool Creditors
20.9 Construction
21. PAYMENT DEFAULT
21.1 Payment default
21.2 Amount in default likely to be remedied
21.3 Loans part of Pool Reserve Assets
21.4 Repayment of loans
21.5 Reduction of payments to Pool Creditors
21.6 Obligation to make calls
21.7 Indemnification by non-paying Pool Debtor
21.8 Notification to Pool Creditors
21.9 Default Interest
21.10 Application of payments
21.11 Clearing of Pool Clearing Account
21.12 Credit Facility
22. CONFIRMATION NOTICES
22.1 Despatch of Confirmation Notices
22.2 Information - taking of electricity
22.3 Information - supplies of electricity
22.4 Information - Ancillary Services Provider
22.5 Interest
23. PAYMENT ERRORS
23.1 Overpayments
23.2 Repayment of overpayment (1)
23.3 Repayment of overpayment (2)
23.4 Underpayments
24. ENFORCEMENT OF CLAIMS
24.1 Notification of amount in default
24.2 Duties of Pool Funds Administrator
24.3 Notice before action
24.4 Proceedings to Recover Overdue Amounts
25. CREDIT FACILITY: PAYMENT DEFAULTS
25.1 Purpose of Credit Facility
25.2 Modification of other provisions of this Schedule
25.3 Payment default
25.4 Amounts in default
25.5 Application of payments
25.6 Payments to Facility Bank
25.7 Reduction in payments to Pool Creditors
25.8 Enforcement of Claims and other provisions
25.9 Unavailability of Credit Facility
25.10 Interpretation
26. CREDIT FACILITY: GENERAL
26.1 Notifications to the Executive Committee
26.2 Notifications to Providing Members
26.3 Amendment and Cancellation
26.4 Extension and Renewal
26.5 Fees not attributable to a particular Providing Member
26.6 No additional charge
Annex 1: Form of Advice Note
Annex 2: Form of Confirmation Notice
Annex 3: Part 1 - Form of Settlement Account Designation
Part 2 - Form of Change of Settlement Account
Annex 4: Form of Letter of Credit
SCHEDULE 11
Billing and Settlement
PART 1
PRELIMINARY
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Schedule, except where the context otherwise
requires:-
"Advice Note" means a statement substantially in the form and
containing the information set out in Annex 1 (or in such other form or
containing such further information as may from time to time be
specified by the Executive Committee) issued in the name of the Pool
Funds Administrator to a Pool Member, the Ancillary Services Provider
or the Grid Operator;
"Approved Credit Rating" means, in relation to a Pool Member or the
Grid Operator a short-term debt rating of not less than A1 by Standard
and Poor's Corporation or a rating of not less than P1 by Moody's
Investors Service or an equivalent rating from any other reputable
credit rating agency approved by the Executive Committee;
"Banking System" means the banking system described in Section 4, for
the transfer of funds from Pool Debtors to Pool Creditors in accordance
with this Schedule, as amended or replaced from time to time in
accordance with the provisions of the Agreement;
"Billing System" means the systems and procedures described in Sections
18 and 22 for the issuing of Advice Notes and Confirmation Notices by
the Pool Funds Administrator to Pool Members, the Ancillary Services
Provider and the Grid Operator, as amended or replaced from time to
time in accordance with the provisions of the Agreement;
"CHAPS" means the Clearing House Automated Payments System;
"Collection Account" means an account denominated in sterling
maintained by the Pool Funds Administrator at a branch of a Settlement
Bank, and designated from time to time as a Collection Account in
accordance with Section 4;
"Confirmation Notice" means a statement substantially in the form and
containing the information set out in Annex 2 (or in such other form or
containing such further information as may from time to time be
specified by the Executive Committee) issued in the name of the Pool
Funds Administrator to a Pool Member, the Ancillary Services Provider
or the Grid Operator;
"Credit Facility" means the credit facility in a principal amount of up
to (pound)20,000,000 provided to the Pool Funds Administrator by
Barclays Bank PLC (acting through its branch at 54 Lombard Street,
London EC3 9EX) with effect from 1st January, 1993 as from time to time
extended, renewed or modified and any other facility provided to the
Pool Funds Administrator by Barclays Bank PLC or any other bank
(approved by the Executive Committee) whether in substitution for or in
addition to the same in any such case on terms approved by the
Executive Committee;
"Credit Facility Contribution" means a sum equal to 5 per cent. of the
fees (and any additional amounts payable under the terms of the Credit
Facility which are not the responsibility of any particular Providing
Member or the Grid Operator) charged under the Credit Facility to the
Pool Funds Administrator;
"Default Interest Rate" means:-
(i) a rate per annum determined by the Pool Funds Administrator
to be equal to the aggregate of:-
(a) 4 per cent. per annum; and
(b) the Pool Banker's base lending rate from time to time;
or
(ii) such other rate as the Executive Committee may from time to time
determine;
"Facility Bank" means Barclays Bank PLC (acting through its branch at
54 Lombard Street, London EC3 9EX) or such other bank as may from time
to time provide a Credit Facility;
"Funds Transfer Agreement" means the agreement of that name dated 30th
March, 1990 and made between Energy Pool Funds Administration Limited,
Barclays Bank PLC, the Pool Members named therein and The National Grid
Company plc, as amended, varied, supplemented, modified or suspended
from time to time in accordance with the terms hereof and thereof;
"Funds Transfer Business" means the business of the Pool Funds
Administrator in operating the Funds Transfer System and providing the Services;
"Funds Transfer Hardware" has the meaning ascribed to it in Schedule
15;
"Funds Transfer Software" has the meaning ascribed to it in Schedule
15;
"Funds Transfer System" means the Banking System, the Billing System
and the Information Systems;
"Information Systems" means the information systems described in
Section 3 for the transfer of information to be given by or to the Pool
Funds Administrator in connection with the Funds Transfer Business, as
amended or replaced from time to time in accordance with the provisions
of the Agreement;
"Letter of Credit" means an unconditional irrevocable standby letter of
credit substantially in the form set out in Annex 4 (or such other form
as the Executive Committee may approve) issued for the account of a
Providing Member or the Grid Operator in sterling in favour of the Pool
Funds Administrator as trustee on the trusts set out in Section 5 by
any United Kingdom clearing bank or any other bank which has a long
term debt rating of not less than single A by Standard and Poor's
Corporation or by Moody's Investors Service, or such other bank as the
Executive Committee may approve, and which shall be available for
payment at a branch of the issuing bank;
"Notification Date" means, in respect of any Settlement Day, the day
specified in the Payments Calendar as the day on which the Settlement
Run shall be required to be delivered by the Settlement System
Administrator to the Pool Funds Administrator for that Settlement Day;
"Notified Payment" means a payment notified in accordance with Section
18 by the Pool Funds Administrator to a Pool Member, the Ancillary
Services Provider or the Grid Operator as being a payment required to
be cleared through the Pool Clearing Account;
"Notified Payments System" means the system to be established by
Section 19 for the settling of Notified Payments, as amended or
replaced from time to time in accordance with the provisions of the
Agreement;
"Payment Date" means, in relation to any Settlement Day, the date fixed
in accordance with Section 2 upon which Notified Payments in respect of
supplies of electricity, the provision of Ancillary Services and
payments due in accordance with the provisions of Clause 49 of the
Agreement must be settled in accordance with this Schedule;
"Payments Calendar" means the calendar prepared and issued in
accordance with Section 2 showing a Notification Date and a Payment
Date in respect of each Settlement Day;
"Pool Accounts" means the Pool Clearing Account, the Pool Borrowing
Account, the Pool Reserve Account and the Collection Accounts and such
other accounts as may be established in accordance with sub-section
4.2;
"Pool Banker" means Barclays Bank PLC or such other person nominated
from time to time by the Executive Committee as Pool Banker and
appointed as Pool Banker;
"Pool Borrowing Account" means the account of that title in the name of
the Pool Funds Administrator with the Facility Bank which may from time
to time be opened in respect of the Credit Facility;
"Pool Clearing Account" means the account in the name of the Pool Funds
Administrator (holding as trustee on the trusts set out in Section 5)
with the Pool Banker to which Notified Payments are required to be
transferred for allocation to Pool Creditors in accordance with their
respective entitlements;
"Pool Creditor" means each Pool Member, the Ancillary Services Provider
and the Grid Operator to whom moneys are payable pursuant to the terms
of this Schedule, other than a Providing Member or the Grid Operator,
in respect of (i) amounts standing to the credit of its account with
the Pool Reserve Account or (ii) amounts owing to it by another
Providing Member or (as the case may be) the Grid Operator pursuant to
the operation of sub-section 21.1;
"Pool Debt" means, in respect of a Pool Member, the Ancillary Services
Provider or the Grid Operator, the aggregate amount payable by such
Pool Member, the Ancillary Services Provider or (as the case may be)
the Grid Operator pursuant to the terms of this Schedule;
"Pool Debtor" means each Pool Member, the Ancillary Services Provider
and the Grid Operator, but in any such case only where it is required
to make payment under this Schedule;
"Pool Ledger Accounts" means the accounting records required to be
maintained by the Pool Funds Administrator in accordance with Section 6
for the recording of transactions settled in accordance with this
Schedule;
"Pool Reserve Account" means the account established pursuant to
sub-section 4.2 for the purpose of holding a cash deposit which may be
used in or towards clearing the Pool Clearing Account in accordance
with Section 21;
"Pool Reserve Assets" has the meaning given to that expression in
sub-section 5.12;
"Providing Member" means each Pool Member who may, under the terms of
this Schedule, become at any time a Pool Debtor;
"Reserve Interest Rate" means the rate of interest payable from time to
time by the Pool Banker on amounts standing to the credit of the Pool
Reserve Account;
"Security Amount" means, in respect of a Providing Member or the Grid
Operator (as the case may be), the aggregate of available amounts of
each outstanding Letter of Credit plus the principal amount (if any) of
cash that such Providing Member or the Grid Operator has paid to the
credit of the Pool Reserve Account (and which has not been repaid to
such Providing Member or the Grid Operator) and less the amount of all
outstanding loans deemed to be made under paragraphs 21.1.3 or 21.1.5
of this Schedule to such Providing Member or the Grid Operator. For the
purposes of this definition, in relation to a Letter of Credit,
"available amount" means the face amount thereof less (i) payments
already made thereunder and (ii) claims made thereunder but not yet
paid;
"Security Cover" means, in respect of each Providing Member and the
Grid Operator, the aggregate amount for the time being which it shall
be required by the Executive Committee to provide and maintain by way
of security in accordance with Part 3;
"Services" means the services and responsibilities to be supplied or
discharged by the Pool Funds Administrator pursuant to the
Agreement;
"Settlement Account" means, in relation to a Pool Member, the Ancillary
Services Provider or the Grid Operator, an account maintained at a
Settlement Bank and designated in accordance with sub-section 4.4;
"Settlement Account Designation" means a notice substantially in the
form set out in Part 1 of Annex 3 or in such other form as may be
specified by the Executive Committee, completed and signed by a Pool
Member, the Ancillary Services Provider or the Grid Operator
designating a Settlement Account for the purposes of this Schedule;
"Settlement Bank" means a bank which:-
(a) has its head office or a branch situated in the United Kingdom and
which holds sterling denominated accounts at such office or branch;
(b) is a settlement member of the Clearing House Automated
Payment System ("CHAPS") or is a CHAPS participant by virtue
of an agency agreement with a settlement member; and
(c) is either:-
(i) a European institution under the Banking Coordination
(Second Council Directive) Regulations 1992; or
(ii) an authorised institution under the Banking Act 1987;
"Settlement Bank Mandate" means any mandate referred to in sub-section
4.7 to be given by the Pool Funds Administrator in favour of a
Settlement Bank or, as the context may require, a particular one of
them in such form(s) as the Executive Committee may approve, such
approval not to be unreasonably withheld, such mandate being given for
the purpose of establishing and maintaining a Collection Account;
"Settlement Re-run" means any re-run of Settlement in accordance with
Part XII of the Agreement;
"Settlement Run" means, in respect of transactions occurring on the
relevant Settlement Day for which payments are to be settled pursuant
to this Schedule, the data which the Settlement System Administrator is
required to deliver from time to time to the Pool Funds Administrator
pursuant to Section 17 in respect of such transactions; and
"Shortfall" has the meaning given to that expression in sub-section
5.7.
1.2 Interpretation: In this Schedule, except where the context otherwise
requires, references to a particular Annex, Part, Section, sub-section,
paragraph or sub-paragraph shall be a reference to that Annex to or
Part of this Schedule or, as the case may be, that Section,
sub-section, paragraph or sub-paragraph in this Schedule and references
to any amount being exclusive or inclusive of United Kingdom Value
Added Tax shall mean that that amount is exclusive or inclusive (as the
case may be) of a sum equal to such amount, if any, of United Kingdom
Value Added Tax as is properly chargeable on the supply to which the
first-mentioned amount is attributable as being all or part of the
consideration for that supply.
PART 2
ESTABLISHMENT OF SYSTEMS
2. PAYMENTS CALENDAR
2.1 Preparation: No later than 31st January in each year the Pool Funds
Administrator and the Settlement System Administrator shall agree on a
Payments Calendar showing for the period from 1st April in that year to
31st March in the next succeeding year (both dates inclusive) the
Payment Dates on which payments pursuant to the Agreement in respect of
supplies of electricity, the provision of Ancillary Services and in
respect of sums payable by the Grid Operator in relation to Transport
Uplift on each Settlement Day are required to be settled and showing
the Notification Dates on which the Settlement Run in respect of such
supplies shall be delivered by the Settlement System Administrator to
the Pool Funds Administrator.
2.2 Principles: Each Payments Calendar shall give effect to the
following principles:-
2.2.1 the Settlement Run shall be required to be delivered by the
Settlement System Administrator to the Pool Funds
Administrator no later than the 24th day after the
Settlement Day to which the Settlement Run relates (or, if
such day is not a Business Day, the next succeeding day
which is a Business Day);
2.2.2 the Payment Date shall not fall earlier than two clear
Business Days after the day on which the Settlement Run is
required to be delivered by the Settlement System
Administrator to the Pool Funds Administrator;
2.2.3expressed as an average over the entire period covered by the
Payments Calendar, the Payment Date shall fall, as near as
practicable, 28 days after the Settlement Day to which it
relates; and
2.2.4 each Payment Date shall fall as close as is reasonably
practicable to the 28th day after the Settlement Day to which it relates,
and shall be prepared in accordance with the relevant Agreed Procedure.
2.3 Form: The Payments Calendar shall be in such form as the
Executive Committee shall from time to time prescribe.
2.4 Default: If the Pool Funds Administrator and the Settlement System
Administrator shall fail to agree a Payments Calendar for any period by
the date stated in sub-section 2.1 or the Payments Calendar prepared by
them does not give effect to the principles set out in sub-section 2.2,
the Executive Committee shall prepare or cause to be prepared a
Payments Calendar for that period giving effect to the said principles
and that shall be the Payments Calendar for use for that period.
2.5 Distribution: Any Payments Calendar prepared pursuant to this Section 2
shall be distributed promptly to each Pool Member, the Ancillary
Services Provider, the Grid Operator, the Pool Banker, the Pool Auditor
and the Director and (if prepared by the Pool Funds Administrator and
the Settlement System Administrator) the Executive Committee and (if
prepared by or for the Executive Committee) the Pool Funds
Administrator and the Settlement System Administrator.
3. INFORMATION SYSTEMS
3.1 Provision of information: Unless otherwise required by the Executive
Committee, all written information to be given by or to the Pool Funds
Administrator in connection with the Banking System and the Billing
System shall be provided in the following manner:-
3.1.1 for information flowing between the Pool Funds
Administrator, the Settlement System Administrator, the
Ancillary Services Provider and the Grid Operator by
electronic mail as designated from time to time by the
recipient in a written notice to the sender of the
information or if such electronic mail systems are not
operational by the Effective Date then, until such systems
are operational, by such means as such parties shall agree;
3.1.2 for information flowing between the Pool Funds Administrator
and the Pool Banker, in the manner prescribed in the Funds
Transfer Agreement or in such other manner as may be agreed
between the Pool Funds Administrator and the Pool Banker;
3.1.3 for information flowing between the Pool Funds Administrator
and a Settlement Bank, in the manner prescribed in the
relevant Settlement Bank Mandate or in such manner as may be
agreed between the Pool Funds Administrator and the
Settlement Bank;
3.1.4 for information flowing between the Pool Funds Administrator
and any Pool Member who has installed an electronic mail
transfer system compatible with the Pool Funds
Administrator's electronic mail transfer system, by
electronic mail as designated from time to time by the
recipient in a written notice to the sender of the
information; and
3.1.5 for information flowing between the Pool Funds Administrator
and any other Pool Member, by facsimile transmission and
addressed for the attention of the Authorised Person (as
defined in sub-section 3.3) for such Pool Member and sent to
the then latest facsimile number of such Authorised Person
notified to the Pool Funds Administrator pursuant to
sub-section 3.3 provided that, if at the relevant time there
is no Authorised Person for such Pool Member, such
information shall be sent by facsimile transmission and
addressed for the attention of the company secretary of such
Pool Member and sent to the facsimile number of its
registered or principal office.
3.2 Communications Equipment: Each Party undertakes to exercise reasonable
skill and care to ensure that its communications equipment at all times
is adequate to transmit and receive information in connection with the
Banking System and the Billing System. In the case of any breakdown,
failure or non-availability of the communications or other equipment,
each Party affected shall use all reasonable efforts to agree promptly
on the use and implementation of alternative, effective and secure
means of communication (and, in default of agreement, notices or other
communications shall be by letter delivered or sent in accordance with
Clause 75).
3.3 Authorised persons: Upon written request of the Pool Funds
Administrator each Pool Member shall (and may of its own accord)
provide the Pool Funds Administrator in writing with the name of, and
communication details for, one or more individuals ("Authorised
Persons") who are authorised (and, until it receives written notice to
the contrary, the Pool Funds Administrator shall be entitled to assume
that they are authorised) to take action on behalf of such Pool Member
in respect of all communications and other dealings under this Schedule
between the Pool Funds Administrator and such Pool Member. Each Pool
Member shall promptly advise the Pool Funds Administrator in writing of
any change of any such individual or his communication details. The
Pool Funds Administrator shall notify all Pool Members and the
Executive Committee of the names and communication details of all
Authorised Persons and of any change in any such individual or his
communication details.
4. BANKING SYSTEM
4.1 Funds Transfer Agreement: On the Effective Date the Pool Funds
Administrator, the Pool Banker, each Pool Member and NGC (in each case as
at such date) entered into the Funds Transfer Agreement.
4.2 Establishment of Accounts: The Pool Funds Administrator shall establish
and operate in accordance with the Agreement and the Funds Transfer
Agreement a Pool Clearing Account to and from which all payments
calculated in accordance with this Schedule are to be made, a Pool
Reserve Account from which any debit balances on the Pool Clearing
Account at the close of banking business on each Business Day shall be
settled or reduced in accordance with this Schedule, a Collection
Account at each bank at which, from time to time, any Pool Member, the
Ancillary Services Provider or the Grid Operator maintains a Settlement
Account and such other accounts (including a Pool Borrowing Account on
which the Pool Funds Administrator may make drawings under the Credit
Facility) as the Pool Funds Administrator (with the prior written
consent of the Executive Committee) considers desirable to enable it
efficiently to perform any obligations imposed on it pursuant to the
Agreement. Each Pool Account shall be in the name of the Pool Funds
Administrator and (save for the Pool Borrowing Account) shall be
designated as being held in trust in accordance with the provisions of
Section 5. The Pool Funds Administrator shall not commingle any funds
standing to the credit of any Pool Account with its own personal funds.
4.3 Rights and obligations under Funds Transfer Agreement: The Pool Funds
Administrator is authorised by the Pool Members, the Ancillary Services
Provider and the Grid Operator to exercise the rights granted to it
under, and shall perform its obligations pursuant to, the Funds
Transfer Agreement except that it shall not remove the Pool Banker
without the prior written consent of the Executive Committee; and that
at the request of the Executive Committee it shall remove the Pool
Banker in accordance with the Funds Transfer Agreement. Subject to the
agreement of the Pool Banker, the Parties agree promptly to give effect
to any amendment to the Funds Transfer Agreement as may be required by
the Executive Committee.
4.4 Settlement Account: Each Pool Member, the Ancillary Services Provider
and the Grid Operator shall deliver to the Pool Funds Administrator, in
the case of a Pool Member, not later than the later of the Effective
Date and 10 Business Days (or such lesser number of Business Days as
the Executive Committee may, in respect of any Pool Member, by notice
to such Pool Member and the Pool Funds Administrator specify) before it
is admitted as a Pool Member, in the case of the Ancillary Services
Provider, not later than the later of the Effective Date and the date
of its admission as a Party and, in the case of the Grid Operator, not
later than the date on which the Grid Operator first becomes a Pool
Debtor, a duly completed and signed Settlement Account Designation
providing details of the Settlement Account to which the Pool Funds
Administrator is instructed to make payments to such person and, if
such person wishes to designate a second account as its Settlement
Account from which payments due from such person are to be transferred
in accordance with this Schedule, providing details of such other
account.
4.5 Further information: Each Pool Member, the Ancillary Services Provider
and the Grid Operator shall also supply to the Pool Funds Administrator
and the Executive Committee such information or (as the case may be)
further information concerning its Settlement Account as shall be
reasonably requested by the Executive Committee or the Pool Funds
Administrator.
4.6 Change of Settlement Account: Each Pool Member, the Ancillary Services
Provider and the Grid Operator may, in consultation with the Pool Funds
Administrator and the Pool Banker, change its Settlement Account at any
time by delivering to the Pool Funds Administrator and the Pool Banker
a duly completed and signed notice substantially in the form set out in
Part 2 of Annex 3 (or in such other form as may from time to time be
specified by the Executive Committee) specifying the effective date of
the change (which shall be no less than 10 Business Days after the
notice is received by the Pool Funds Administrator).
4.7 Maintenance of Settlement Account and Settlement Bank Mandate: Each
Pool Member, the Ancillary Services Provider and the Grid Operator
shall, unless otherwise agreed by the Executive Committee, at all times
maintain a Settlement Account and the Pool Funds Administrator shall
enter into and maintain a Settlement Bank Mandate with each of the
relevant Settlement Banks.
4.8 Details of Accounts: The Pool Funds Administrator shall supply full
details to each Pool Member, the Ancillary Services Provider and the
Grid Operator of the Pool Clearing Account, the Pool Reserve Account
and any relevant Collection Account and, for so long as it is
maintained, the Pool Borrowing Account and shall supply the Executive
Committee with full details of all Pool Accounts and Settlement
Accounts.
5. ESTABLISHMENT OF TRUSTS
5.1 Trusts: The Pool Funds Administrator shall hold all moneys deposited
with or paid to it (other than Pool Reserve Assets) and such rights as
may from time to time be vested in it with regard to payment by Pool
Members (apart from fees owed or paid to it for its services in
accordance with Schedule 15 and any amounts payable to it pursuant to
that Schedule upon its removal as Pool Funds Administrator or the
expiry or termination of its appointment as such), by and from each
Pool Debtor or with regard to the provision of Security Cover by each
Pool Member or the Grid Operator including:-
5.1.1 subject as provided in sub-section 5.2, all moneys from time
to time standing to the credit of each Pool Account other
than the Pool Reserve Account and the Pool Borrowing
Account;
5.1.2all rights of the Pool Funds Administrator to call for payment or
Security Cover;
5.1.3 the Letters of Credit and all rights to, and (subject to
sub-section 15.5) moneys representing, any proceeds
therefrom other than proceeds repayable by loan in
accordance with paragraphs 5.12.5 and 5.16; and
5.1.4 any interest received or receivable in respect of a Pool Debt or
a Pool Account (other than interest on the Pool Reserve Account),
on trust for Pool Creditors in accordance with their respective
individual entitlements as they arise in accordance with the Agreement.
Upon termination of the said trust any residual balance after
satisfaction of the entitlement of all Pool Creditors shall be held for
Providing Members, the Ancillary Services Provider and the Grid
Operator in accordance with their respective individual entitlements as
they arise in accordance with the Agreement.
5.2 Trusts in respect of the Credit Facility: The Pool Funds Administrator
shall hold all moneys from time to time standing to the credit of the
Pool Clearing Account on trust first for the Facility Bank to the
extent that there is an aggregate amount outstanding under the Credit
Facility but on terms that no funds shall be withdrawn in favour of the
Facility Bank except in satisfaction of a payment due to the Facility
Bank under the terms of the Credit Facility or in accordance with this
Schedule and on terms that the Pool Funds Administrator will be
entitled to make payments out of the account to Pool Members and other
Parties in accordance with the other provisions of this Schedule.
5.3 Rights of Pool Creditors other than the Ancillary Services Provider:
The respective rights of Pool Creditors other than the Ancillary
Services Provider to the assets held by the Pool Funds Administrator on
the trusts set out in sub-section 5.1 shall be determined in accordance
with the Agreement and in accordance with the following principles:-
5.3.1 the extent of each Pool Creditor's individual rights shall
be deemed to consist of the aggregate of the claims (to the
extent not paid or otherwise satisfied) of such Pool
Creditor in respect of each Settlement Period; and
5.3.2 the assets referred to in sub-section 5.1 shall be deemed to
consist of a series of funds, each fund representing the
rights or moneys owed, paid, held or otherwise attributable
to each Settlement Period. The Pool Funds Administrator
shall not be obliged to segregate moneys into separate
funds.
5.4 Rights of Ancillary Services Provider: The rights of the
Ancillary Services Provider to assets held on trust shall be
determined in accordance with Section 23 of Schedule 9.
5.5 Trusts in respect of Pool Reserve Assets: The Pool Funds
Administrator shall stand possessed of the Pool Reserve Assets on
the following trusts, that is to say:-
5.5.1 at any time when no amounts owed by Pool Debtors are
overdue, on trust to repay (subject to and in accordance
with the provisions of sub-sections 5.8 and 5.9) to each
Providing Member and the Grid Operator the respective share
of such Providing Member or (as the case may be) the Grid
Operator (determined in accordance with sub-section 5.13) of
the Pool Reserve Assets; and
5.5.2 with automatic effect as soon as any amount owed by a Pool
Debtor becomes overdue, to hold an amount of the moneys
credited from time to time to the Pool Reserve Account equal
to the Shortfall or the amount held in the Pool Reserve
Account attributable to such Pool Debtor (whichever is less)
on the trusts set out in sub-section 5.1 and the balance (if
any) shall be held on the trusts set out in paragraph 5.5.1.
5.6 Overdue amounts: In respect of a Pool Debtor and for the purposes of
sub-section 5.5, an amount shall be deemed to become overdue at the
time at which the Pool Funds Administrator becomes aware that such Pool
Debtor has not made or will not make by 12.30 hours payment in full to
the credit of the Collection Account of such Pool Debtor of such an
amount as it is required on such day to make and, for as long as the
Credit Facility remains unconditionally available, the Pool Funds
Administrator considers in good faith that the amount in default is not
likely to be remedied on the next Business Day and the amount overdue
shall be the amount of the Shortfall.
5.7 Shortfall: The term "Shortfall", as used in this Section 5, means the
amount from time to time of Notified Payments which have become overdue
by application of the rule set out in sub-section 5.6 and which have
not subsequently been paid (whether by remittance from a Pool Debtor,
payment out of the Pool Reserve Account or a call under a Letter of
Credit). To the extent that the Pool Funds Administrator is unable to
determine the precise amount of a Shortfall, it shall be deemed to be
such amount as the Pool Funds Administrator and the Pool Banker shall
agree, or failing agreement, the entire amount of the Notified Payment.
5.8 Providing Members' and the Grid Operator's rights to funds: Each
Providing Member and the Grid Operator remitting funds for credit to
the Pool Reserve Account agrees that the following terms shall apply.
None of the remittances shall be repayable until a Providing Member has
ceased to be a Pool Member or (as the case may be) the Grid Operator
has ceased to be a Party and has paid in full all amounts actually or
contingently owed by it to any Pool Creditor, the Settlement System
Administrator or the Pool Funds Administrator. Furthermore, if and to
the extent that, at any time when an amount would be repayable to a
Providing Member or the Grid Operator pursuant to this sub-section 5.8,
all or any part of the Providing Member's or the Grid Operator's
interest in the Pool Reserve Assets is represented by a loan to a Pool
Member or the Grid Operator deemed to be made in accordance with
paragraph 21.1.3 or 21.1.5 the rights of a Providing Member or (as the
case may be) the Grid Operator as against the Pool Funds Administrator
to receive a payment of its share in the Pool Reserve Assets (or the
relevant portion of such share) shall be conditional on repayment in
full of the relevant loan.
5.9 Funds not to be withdrawn: Each Providing Member and the Grid Operator
undertakes not to seek withdrawal of any funds to which it may be
entitled except in the circumstances permitted by sub-section 5.10 or
16.7. The Pool Funds Administrator shall be entitled to disregard any
purported notice of withdrawal not complying with this sub-section 5.9.
5.10 Providing Members' and Grid Operator's rights to withdraw funds:
Notwithstanding sub-sections 5.8 and 5.9, if a Providing Member
or (as the case may be) the Grid Operator is not in default in
respect of any amount owed to a Pool Creditor:-
5.10.1 the Pool Funds Administrator shall transfer to the relevant
Providing Member or the Grid Operator quarterly its share of
interest credited to the Pool Reserve Account; and
5.10.2 the Pool Funds Administrator shall transfer to such
Providing Member or the Grid Operator within a reasonable
time after a written request of such Providing Member or (as
the case may be) the Grid Operator therefor any amount of
cash which exceeds the amount which such Providing Member or
the Grid Operator is required to maintain in the Pool
Reserve Account from time to time in accordance with Section
16.
5.11 Waiver of Providing Members' and Grid Operator's rights: Each Providing
Member and the Grid Operator waives any right it might otherwise have
to set off against any obligation owed to the Pool Funds Administrator,
the Pool Banker, any Pool Member, the Ancillary Services Provider or
the Grid Operator any claims such Providing Member or the Grid Operator
may have to or in respect of the Pool Reserve Assets.
5.12 Pool Reserve Assets: "Pool Reserve Assets" means the aggregate of:-
5.12.1 amounts from time to time credited to the Pool Reserve Account;
5.12.2 amounts which any Providing Member or the Grid Operator is
from time to time obliged to pay to the Pool Funds
Administrator for credit to the Pool Reserve Account and
claims in respect of such amounts;
5.12.3 interest accrued and accruing on the Pool Reserve Account;
5.12.4 any amounts credited to the Pool Reserve Account pursuant to
paragraph 15.4.3; and
5.12.5 any loans deemed to be made from any amounts credited to the
Pool Reserve Account pursuant to paragraph 21.1.3 or 21.1.5.
5.13 Providing Members' and Grid Operator's rights and interests in the Pool
Reserve Account: At any time when it is necessary to determine the
respective rights and interests of Providing Members and the Grid
Operator in and to funds standing to the credit of the Pool Reserve
Account, such rights shall be determined in accordance with the
following rules:-
5.13.1 any amount withdrawn from the Pool Reserve Account following
the occurrence of a Shortfall which the Pool Funds
Administrator has determined to be attributable to a
particular Providing Member or (as the case may be) the Grid
Operator (the "Relevant Provider") (irrespective of the
existence or otherwise of actual fault on the part of the
Relevant Provider) shall in the first instance reduce pro
tanto the Relevant Provider's interest in the Pool Reserve
Assets;
5.13.2 if, in any circumstances described in paragraph 5.13.1, the
Shortfall exceeds the Relevant Provider's interest in the
Pool Reserve Account, then any excess required to be
withdrawn from the Pool Reserve Account shall reduce the
respective interests of Providing Members and the Grid
Operator, other than the Relevant Provider, in proportion to
their respective interests in the Pool Reserve Account prior
to the withdrawal;
5.13.3 any proceeds of a Letter of Credit which are to be credited
to the Pool Reserve Account pursuant to sub-section 5.16,
and any amounts paid by a Relevant Provider to make up a
payment out of the Pool Reserve Account, shall be applied in
priority in or towards reinstating (rateably among
themselves) the respective interests of Providing Members
and the Grid Operator other than the Relevant Provider in
the Pool Reserve Account;
5.13.4 subject to the rules set out in paragraphs 5.13.1 to 5.13.3
(inclusive), the respective rights of each Providing Member
and the Grid Operator in and to funds standing to the credit
of the Pool Reserve Account shall be to receive (subject to
sub-sections 5.8 and 5.9) an amount equal to the aggregate
amounts remitted by the Providing Member and the Grid
Operator to the Pool Reserve Account and not subsequently
withdrawn, together with a proportionate share of any
interest from time to time credited to the Pool Reserve
Account; and
5.13.5 in the absence of a Shortfall, any amounts credited to the
Pool Reserve Account following a call under a Letter of
Credit pursuant to sub-section 15.5 shall be considered as
an interest in the Pool Reserve Assets of the Relevant
Provider in respect of the relevant Letter of Credit.
5.14 Overpayments to be held on trust: If and to the extent that
payments under this Schedule actually made on any day by the Pool
Funds Administrator to Pool Members or the Ancillary Services
Provider in respect of supplies of electricity under the
Agreement or the provision of Ancillary Services do not
correspond exactly with their respective payment entitlements
established in accordance with the Agreement in relation to
supplies of electricity or the provision of Ancillary Services in
respect of that same day, then the person receiving any
overpayment shall receive and be deemed to hold the amount of
such overpayment on trust for the Pool Member or rateably for the
Pool Members, the Ancillary Services Provider or (as the case may
be) for the Grid Operator which, in respect of that same day was
(were) underpaid and, on the written instruction of the Pool
Funds Administrator, shall account in accordance with sub-section
23.2 to the Pool Funds Administrator accordingly for
redistribution of the moneys.
5.15 Reimbursement of overpayments: Subject to sub-sections 5.8 and 5.14,
all payments under this Schedule shall be made on the basis that a Pool
Member or the Grid Operator shall only be entitled to claim
reimbursement of an overpayment made by it (whether to the Pool Funds
Administrator or (through the Pool Funds Administrator) to another Pool
Member, the Ancillary Services Provider or the Grid Operator) if, and
then only to the extent that:-
(a) the aggregate amounts paid by the Pool Member or (as the case may
be) the Grid Operator in respect of the relevant Payment Date
exceed
(b) the total amounts payable by that Pool Member or (as the
case may be) the Grid Operator to Pool Creditors in respect
of that Payment Date together with all amounts (if any)
overdue by that Pool Member or (as the case may be) the Grid
Operator in respect of periods prior to the relevant Payment
Date.
5.16 Repayment of loans: Notwithstanding their rights pursuant to
sub-section 5.1 in and to Letters of Credit and the proceeds
thereof, Pool Creditors agree that if:-
5.16.1 a payment is received under a Letter of Credit after a sum
has been withdrawn from the Pool Reserve Account to make
good (in whole or in part) a discrepancy between amounts
owed and amounts received by the due time on a particular
Payment Date; and
5.16.2 the aggregate of the amounts paid out of the Pool Reserve
Account and paid under the Letter of Credit exceeds the amounts
owed in respect of the relevant Payment Date,
then any excess paid under the Letter of Credit over the amount then
remaining unpaid in respect of the relevant Payment Date shall be
credited to the Pool Reserve Account. Where appropriate, any such
credit shall pro tanto constitute repayment of any loans deemed to be
made pursuant to paragraphs 21.1.3 or 21.1.5.
5.17 No claim for breach of trust: Provided that the Pool Funds
Administrator carries out its duties under the Agreement, none of the
Pool Members, Ancillary Services Provider nor the Grid Operator shall
have any claim against the Pool Funds Administrator for breach of trust
or fiduciary duty arising solely out of any discrepancy between
payments actually made in respect of any day and the entitlement of
Pool Members, Ancillary Services Provider or the Grid Operator to
receive payments in respect of that same day.
6. POOL LEDGER ACCOUNTS
6.1 Maintenance of Pool Ledger Accounts: The Pool Funds Administrator shall
maintain ledger accounts showing all amounts payable and receivable by
each Pool Member, the Ancillary Services Provider and the Grid Operator
according to calculations made and notifications issued by the Pool
Funds Administrator pursuant to this Schedule.
6.2 Ledger extracts: Each Pool Member, the Ancillary Services Provider and
the Grid Operator shall be entitled to receive a quarterly extract of
the ledger account which is relevant to it showing all amounts debited
and credited to its account provided that, if a Pool Member, the
Ancillary Services Provider or the Grid Operator so requests of the
Pool Funds Administrator, it shall be entitled to receive a monthly
extract of such ledger account.
6.3 Certified copy extracts: Without prejudice to the generality of the
general duties and responsibilities of the Pool Funds Administrator set
out in Schedule 15, in the event of any enforcement proceedings being
brought by a Pool Creditor against a non-paying Pool Member or the Grid
Operator, the Pool Funds Administrator shall forthwith upon request
being made to it at the cost of the requesting Pool Creditor provide a
certified copy of an extract of the ledger accounts sufficient to
establish the details of each transaction in respect of which the Pool
Creditor has a claim against the non-paying Pool Member or the Grid
Operator.
6.4 Confidentiality: The ledger accounts maintained by the Pool Funds
Administrator shall be kept confidential in accordance with Part XVIII
of the Agreement from Committee Members and from all Pool Members and
the Grid Operator (except as required pursuant to Clause 63.1.5 or
63.1.6 or sub-section 6.2 or 6.3) but the Pool Funds Administrator
shall disclose such ledger accounts to the Pool Auditor for the purpose
of any audit requested to be conducted pursuant to Part IX of the
Agreement.
6.5 Information: Any extract of a ledger account of any other records, data
or information provided pursuant to Clause 63.1.5 or 63.1.6 or
sub-section 6.2 (collectively referred to in this Section 6 as the
"information") shall, save in the case of manifest error, be deemed
prima facie evidence of its contents.
6.6 Review of extracts: Each Pool Member, the Ancillary Services Provider
and the Grid Operator shall promptly review all extracts of ledger
accounts sent to it and shall (without prejudice to any of its rights
under the Agreement) where practicable within 10 Business Days after
receiving such information notify the Pool Funds Administrator of any
errors in such account of which it is aware.
6.7 Dispute of accuracy: If the Pool Funds Administrator at any time
receives a notice disputing the accuracy of any ledger account,
records, data or information, it shall consult with the Pool Member who
gave the notice, the Ancillary Services Provider or (as the case may
be) the Grid Operator and each shall use all reasonable endeavours to
agree the information. Promptly after agreement is reached, the Pool
Funds Administrator shall, if necessary, issue corrected information
and notifications under the provisions of sub-section 17.8.
[Sections 7 to 14 (inclusive) not used].
PART 3
SECURITY COVER AND CREDIT MONITORING
15. SECURITY COVER
15.1 Provision of Security Cover: Each Providing Member and the Grid
Operator shall provide Security Cover from time to time in
accordance with the following provisions:-
15.1.1 each Providing Member and the Grid Operator (with the
exception of any entity of or wholly-owned or Controlled by
the United Kingdom Government) shall:-
(a) deliver to the Pool Funds Administrator evidence
reasonably satisfactory to the Executive Committee that:-
(i) it presently holds an Approved Credit
Rating; or
(ii) it has provided and is not in default under
alternative or additional security as may be
approved from time to time by unanimous
decision of all Committee Members (Committee
Members being under no obligation to approve
any such security); or
(b) comply with the provisions of paragraph 15.1.3;
15.1.2 in addition to the provisions of paragraph 15.1.1 but subject
as provided in Sections 21.12 and 25:-
(a) each Supplier (including any Supplier which is an
entity of or wholly-owned or Controlled by the United
Kingdom Government) shall, not later than the date of
its admission as a Pool Member, deliver to the Pool
Funds Administrator:-
(i) a Letter of Credit (available for an initial period of not less
than 12 months); and
(ii) cash for credit to the Pool Reserve Account,
in both cases in such amount as shall be notified by the Executive
Committee in accordance with Section 16; and
(b) each Providing Member, not being a Supplier,
(including any entity of or wholly-owned or Controlled
by the United Kingdom Government and not referred to
in paragraph 15.1.2(a) above) shall, not later than
the date of its admission as a Pool Member or 31st
March, 1995 (whichever is the later) and the Grid
Operator shall, not later than 1st April, 1997,
deliver to the Pool Funds Administrator:-
(i) a Letter of Credit (available for an initial period of not less
than 12 months); and
(ii) cash for credit to the Pool Reserve Account,
in both cases in such amount as shall be notified by the Executive
Committee in accordance with Section 16;
15.1.3 each Providing Member and the Grid Operator mentioned in
paragraph 15.1.1 to which paragraph (b) of paragraph 15.1.1
applies and (if paragraph (b) of paragraph 15.1.1 applies to
it) the Grid Operator shall immediately be required (in
addition to its obligations, if any, under paragraph 15.1.2)
to deliver to the Pool Funds Administrator a Letter of
Credit (available for an initial period of not less than 12
months) or cash for credit to the Pool Reserve Account in
such amount and in such proportions as shall be notified by
the Executive Committee in accordance with Section 16.
15.2 Letters of Credit: For the avoidance of doubt nothing in sub-section
15.1 or 15.6 shall prevent any Providing Member or the Grid Operator
from delivering a single Letter of Credit in respect of its obligations
under paragraphs 15.1.2 and 15.1.3.
15.3 Cash deposit: Any cash amount delivered to the Pool Funds Administrator
for credit to the Pool Reserve Account shall be held on the terms set
out in Section 5. Amounts standing to the credit of the Pool Reserve
Account shall bear interest at the Reserve Interest Rate.
15.4 Maintenance of Security Cover: Each Providing Member and the Grid
Operator shall be required to provide and at all times thereafter
maintain a Security Amount equal to or more than the Security Cover
applicable to it in such aggregate amount as shall be set from time to
time in accordance with this Part 3. Immediately upon any reduction
occurring in the Security Amount provided by any Providing Member or
the Grid Operator or any Letter of Credit being for any reason drawn
down (and including the deemed making of any loan to that Providing
Member or the Grid Operator under the provisions of paragraph 21.1.3 or
21.1.5) the Providing Member or (as the case may be) the Grid Operator
will procure that new Letters of Credit are issued or existing Letters
of Credit are reinstated (to the satisfaction of the Pool Funds
Administrator) to their full value or that cash is placed to the credit
of the Pool Reserve Account in an amount required to restore the
Security Amount to an amount at least equal to the Security Cover
applicable to the Providing Member or (as the case may be) the Grid
Operator and in such proportions of Letters of Credit and cash as this
Part 3 requires. Not later than 10 Business Days before any outstanding
Letter of Credit is due to expire, the Providing Member or the Grid
Operator providing such Letter of Credit shall procure to the
satisfaction of the Pool Funds Administrator that its required Security
Amount will be available for a further period of not less than 12
months which may be done in one of the following ways:-
15.4.1 (subject to the issuing bank continuing to have the credit
rating referred to in sub-section 15.6) provide the Pool
Funds Administrator with confirmation from the issuing bank
that the validity of the Letter of Credit has been extended
for a period of not less than 12 months on the same terms
and otherwise for such amount as is required by this Part 3;
or
15.4.2 provide the Pool Funds Administrator with a new Letter of
Credit issued by an issuing bank with the credit rating
required by this Schedule for an amount at least equal to
the required Security Amount applicable to it (less its
balance on the Pool Reserve Account) which Letter of Credit
shall be available for a period of not less than 12 months;
or
15.4.3 procure such transfer to the Pool Funds Administrator for
credit to the Pool Reserve Account as shall ensure that the
credit balance applicable to it standing to the credit of
the Pool Reserve Account shall be at least equal to the
required Security Amount.
15.5 Failure to supply Security Cover: If a Providing Member or the Grid
Operator fails at any time to provide Security Cover to the
satisfaction of the Pool Funds Administrator in accordance with the
provisions of this Section 15, the Pool Funds Administrator may at any
time while such default continues, and if at such time any Letter of
Credit forming part of the Security Cover is due to expire within nine
Business Days it shall immediately, and without notice to such
Providing Member or (as the case may be) the Grid Operator, demand
payment of the entire amount of any outstanding Letter of Credit and
shall credit the proceeds of the Letter of Credit to the Pool Reserve
Account to be held on the terms and on the trusts set out in Section 5.
15.6 Substitute Letter of Credit: If the bank issuing the Letter of Credit
of any Providing Member or the Grid Operator ceases to have the credit
rating as is set out in sub-section 1.1 under "Letter of Credit", such
Providing Member or (as the case may be) the Grid Operator shall
forthwith procure the issue of a substitute Letter of Credit by a bank
that has such credit rating.
16. CREDIT MONITORING
16.1 Determination of Security Cover: The amount of Security Cover which
each Providing Member and the Grid Operator shall be required to
maintain and, in respect of the amounts of Security Cover to be
provided under paragraph 15.1.2 (so long as applicable) and paragraph
15.1.3 the proportions as between cash and Letter of Credit that may be
permitted, shall be determined from time to time by the Executive
Committee in consultation with the Pool Funds Administrator in
accordance with this Section 16 and on the basis of the criteria set
out in sub-section 16.2, and shall be notified to such Providing Member
or (as the case may be) the Grid Operator, and to the Pool Funds
Administrator.
16.2 Criteria for provision of Security Cover:
16.2.1 If paragraph (b) of paragraph 15.1.1 applies to a Providing
Member or the Grid Operator, the amount of Security Cover
required to be provided by such Providing Member or (as the case
may be) the Grid Operator in addition to the amounts referred to
in paragraph 15.1.2 (so long as applicable) shall be provided by
Letter of Credit in an amount to be assessed by the Executive
Committee in consultation with the Pool Funds Administrator as
the aggregate amounts payable pursuant to the Agreement by the
relevant Providing Member or (as the case may be) the Grid
Operator in respect of purchases of, or as the case may be,
prospective purchases of electricity (including Ancillary
Services) made by the relevant Providing Member or in respect of
sums payable in accordance with Clause 49 of the Agreement by the
Grid Operator over a 28 day period, as determined by the
Executive Committee provided that with the approval of the
Executive Committee, all or part of the required Security Cover
may be provided in cash credited to the Pool Reserve Account.
16.2.2 In respect of all Providing Members and the Grid Operator, the
amounts required to be provided by each of them which are
referred to in paragraph 15.1.2 (so long as applicable) shall
(subject as provided in sub-section 21.12 and Section 25) be
initially as to a minimum of 20 per cent. in cash and the
remainder by way of Letter of Credit, and thereafter as revised
by the Executive Committee. Such amounts shall be assessed by the
Executive Committee in consultation with the Pool Funds
Administrator to cover banking error and to minimise reductions
of payments to Pool Creditors.
16.3 Six monthly variation: In respect of paragraphs 16.2.1 and 16.2.2, the
Executive Committee shall calculate two amounts for the two six-month
periods commencing 1st April and 1st October in each year and shall
advise the Pool Funds Administrator and the relevant Providing Members
or (as the case may be) the Grid Operator accordingly. Such six monthly
variation shall not apply to paragraph 16.2.2 where Section 25 is
applicable.
16.4 Review of Security Cover: The Pool Funds Administrator shall keep under
review the Security Amounts relating to each Providing Member and the
Grid Operator and shall promptly advise the Executive Committee, the
relevant Providing Member or (as the case may be) the Grid Operator
whenever the Security Cover maintained by such Providing Member or (as
the case may be) the Grid Operator is significantly more or less than
the amount required to be maintained pursuant to this Part 3.
16.5 Increase or Decrease of Security Cover: If, after considering the
recommendations of the Pool Funds Administrator and any representations
which may be made by the relevant Providing Member or (as the case may
be) the Grid Operator, the Executive Committee determines that the
Security Cover of a Providing Member or the Grid Operator should be
increased or decreased, it shall so notify the Providing Member or the
Grid Operator (as the case may be), the Pool Funds Administrator and
the Director. If the Executive Committee determines that such Security
Cover should be decreased, the Providing Member or (as the case may be)
the Grid Operator consents and the Director so approves, that reduction
shall take place. The Pool Funds Administrator shall consent to an
appropriate reduction in the available amount of any outstanding Letter
of Credit and/or shall repay to the Providing Member or (as the case
may be) the Grid Operator such part of the deposit held in the Pool
Reserve Account for the account of such Providing Member or the Grid
Operator (together with all accrued interest on the part to be repaid)
sufficient to reduce the Providing Member's or Grid Operator's Security
Amount to the level of Security Cover applicable to it. If the
Executive Committee determines that the Providing Member's or the Grid
Operator's Security Cover should be increased, the relevant Providing
Member or (as the case may be) the Grid Operator shall, within five
Business Days of notice as aforesaid, procure an additional or
replacement Letter of Credit or transfer to the Pool Funds
Administrator a cash deposit for credit to the Pool Reserve Account in
an amount sufficient to increase its Security Amount so as to be at
least equal to the level of Security Cover applicable to it.
16.6 Notification in respect of Security Cover: The Pool Funds
Administrator shall notify the Executive Committee, the Settlement
System Administrator and the Director promptly if:-
16.6.1 a Providing Member or the Grid Operator fails to provide,
extend or renew a Letter of Credit which it is required to maintain
pursuant to Section 15; or
16.6.2 the Pool Funds Administrator shall make a call under any such
Letter of Credit; or
16.6.3 the Pool Funds Administrator becomes aware that a Providing
Member or the Grid Operator (a) shall cease to retain an
Approved Credit Rating, or (b) shall be placed on credit
watch by the relevant credit rating agency (or becomes
subject to an equivalent procedure) which in any case casts
doubt on the Providing Member or the Grid Operator retaining
an Approved Credit Rating, or (c) shall be in default under
the additional or alternative security referred to in
paragraph 15.1.1; or
16.6.4 the Security Amount in relation to any Providing Member or
the Grid Operator is at any time less than the level of its
required Security Cover for the time being; or
16.6.5 the Pool Funds Administrator becomes aware that any bank
that has issued a Letter of Credit which has not expired
ceases to have the credit rating required by this Schedule.
16.7 Release from Security Cover Obligations: Upon a Providing Member
ceasing to be a Pool Member or the Grid Operator ceasing to be a Party
to the Agreement (as the case may be) and provided that all amounts
owed by the Providing Member or the Grid Operator have been duly and
finally paid and that it is not otherwise in default in any respect
under the Agreement, the Providing Member or the Grid Operator shall be
released from the obligation to maintain Security Cover and the Pool
Funds Administrator shall consent to the revocation of any outstanding
Letter of Credit.
16.8 No liability for amount of Security Cover: Any recommendations made by
the Pool Funds Administrator pursuant to this Section 16 shall be given
in good faith. Any instructions given by the Executive Committee in
respect of the amount of Security Cover to be maintained by a Providing
Member or the Grid Operator if given in good faith shall, insofar as
applicable in terms of this Schedule, be binding on all Pool Members,
the Ancillary Services Provider and the Grid Operator and neither the
Pool Funds Administrator nor any Committee Member shall incur any
liability by reason of the Security Cover of a Providing Member or the
Grid Operator proving to be inadequate or excessive.
PART 4
BILLING AND PAYMENT PROCEDURES
17. RECEIPT AND VERIFICATION OF INFORMATION
17.1 Receipt of Information from Settlement System Administrator: Not later
than 12.00 hours on the Notification Date the Pool Funds Administrator
shall require of, and take all steps available to it to procure from,
the Settlement System Administrator, and the Settlement System
Administrator shall use its best endeavours to provide to the Pool
Funds Administrator, the information referred to in sub-sections 17.2
to 17.5 (inclusive) concerning supplies of electricity, the provision
of Ancillary Services and the sums payable in relation to Transport
Uplift in respect of each Settlement Day.
17.2 Information for each Settlement Day: The information required in
respect of each Settlement Day is as follows:-
17.2.1 the Settlement Day;
17.2.2 the corresponding Payment Date;
17.2.3 the Settlement Run identification number;
17.2.4 the total amount owing in accordance with the Agreement
(exclusive of United Kingdom Value Added Tax) in respect of
electricity supplied and Ancillary Services provided and
Transport Uplift due during each Settlement Day; and
17.2.5 the total amount owing (exclusive of United Kingdom Value Added
Tax) in respect of Ancillary Services provided during each Settlement Day.
17.3 Information - taking of electricity: The information required in
respect of each Pool Member taking electricity in each Settlement Day
is as follows:-
17.3.1 the Pool Member's identification number;
17.3.2 the Pool Member's name; and
17.3.3 the total amount owing in accordance with the Agreement
(exclusive of United Kingdom Value Added Tax) in respect of
electricity taken by such Pool Member during each Settlement
Day.
17.4 Information - provision of electricity: The information required in
respect of each Pool Member providing electricity during each
Settlement Day is as follows:-
17.4.1 the Pool Member's identification number;
17.4.2 the Pool Member's name; and
17.4.3 the total amount owing in accordance with this Agreement
(exclusive of United Kingdom Value Added Tax) in respect of
electricity provided by such Pool Member during each
Settlement Day.
17.5 Information - Ancillary Services Provider and Grid Operator: The
information required in relation to the Ancillary Services Provider and
the Grid Operator in respect of each Settlement Day is the total amount
receivable in accordance with the Agreement by the Ancillary Services
Provider (exclusive of United Kingdom Value Added Tax) for the
provision of Ancillary Services during each Settlement Day and the
total amount (exclusive of United Kingdom Value Added Tax) payable by
the Grid Operator in relation to Transport Uplift (including in
relation to Ancillary Services) during each Settlement Day.
17.6 Verification of Information: Upon receipt of the information supplied
by the Settlement System Administrator, the Pool Funds Administrator
shall verify whether, on the basis of such information, the sum of the
amounts shown to be receivable by each Pool Member in respect of its
sales of electricity plus the amount shown to be payable to the
Ancillary Services Provider in respect of its provision of Ancillary
Services on the relevant Settlement Day is equal to the sum of the
amounts shown to be payable by each Pool Member in respect of its
purchases of electricity on the same Settlement Day and by the Grid
Operator in relation to Transport Uplift.
17.7 Deemed Verification: Unless the Pool Funds Administrator shall, by
close of business on the Notification Date, otherwise inform the
Settlement System Administrator, each Pool Member, the Ancillary
Services Provider and the Grid Operator to the contrary before the
Payment Date, the information provided by the Settlement System
Administrator shall be deemed to be verified.
17.8 Rectification of Errors: If the Pool Funds Administrator determines
that the information provided by the Settlement System Administrator
cannot be verified in accordance with sub-section 17.6, it shall as
soon as possible notify the Settlement System Administrator, each Pool
Member, the Ancillary Services Provider and the Grid Operator
accordingly and require the Settlement System Administrator to correct
any errors and obtain the Pool Funds Administrator's verification of
the corrected information as quickly as possible. As soon as the Pool
Funds Administrator verifies that the information provided by the
Settlement System Administrator can be verified in accordance with
sub-section 17.6, the Pool Funds Administrator shall notify the
Settlement System Administrator, each Pool Member, the Ancillary
Services Provider and the Grid Operator of the verified information
required to be given pursuant to sub-section 17.6. The Settlement
System Administrator shall use its best endeavours to provide such
corrected information as may be necessary for the Pool Funds
Administrator to issue verification.
17.9 Amounts in Advice Notes; Adjustments:
17.9.1 The amounts to be incorporated in the Advice Notes in
accordance with sub-section 18.1 (and in all cases together with
United Kingdom Value
Added Tax thereon) shall be:-
(a) if verification has been made in accordance with
sub-section 17.6, the full relevant amounts so verified;
(b) to the extent verification can reasonably be made in
circumstances where all the information cannot be
fully verified as described in sub-section 17.6, those
amounts which are shown against the name of each Pool
Debtor in such information as is received under the
provisions of sub-section 17.1 (whether or not such
information is an estimate only) and such amounts will
be shared amongst the relevant Pool Creditors in the
proportion which the amount shown as due to each of
them in such information as aforesaid bears to the
amounts which are so shown as due to all of them; and
(c) to the extent that for any reason whatever the amounts
to be paid cannot be verified at all (including, but
not limited to, application of Force Majeure and
failure to provide information on the part of the
Settlement System Administrator) or the appropriate
calculations to permit payment in accordance with
sub-paragraph (b) above cannot properly be made, the
same as the amounts calculated as being payable by and
to Pool Members, to the Ancillary Services Provider
and by the Grid Operator in respect of the last same
day of the week in respect of which payments were
verified under sub-section 17.6 (provided that any
Pool Member who was not at that earlier time a Pool
Member, or vice versa, shall be ignored and such
adjustment made as the Pool Funds Administrator
considers appropriate).
17.9.2 In the event that payments are made in the circumstances set
out in paragraph 17.9.1(b) or (c), the Settlement System
Administrator in conjunction with the Pool Funds
Administrator shall, as soon as actual verification can
thereafter be made, make such adjustments as may be
necessary (and, where relevant, apply interest at the
Reserve Interest Rate or at such rate as shall be set from
time to time by the Executive Committee) to account for any
differences between payments made and actual verified
payment information.
17.10 Postponed Payment Date: If for any reason beyond the reasonable control
of the Pool Funds Administrator it is not possible, after application
of sub-section 17.9, for the Pool Funds Administrator to determine by
the close of business on the Notification Date the amounts to be
incorporated in the Advice Notes, the Pool Funds Administrator shall
inform the Settlement System Administrator, each Pool Member, the
Ancillary Services Provider and the Grid Operator that the Payment Date
shall be postponed so that it falls on the second Business Day after
the day on which the Pool Funds Administrator verifies the information
provided by the Settlement System Administrator pursuant to sub-section
17.6 (any such Payment Date being the "Postponed Payment Date" and a
reference to a Payment Date in this Schedule shall where applicable
include a reference to a Postponed Payment Date). On the Postponed
Payment Date, each Pool Member who took electricity on the Settlement
Day to which the Postponed Payment Date applies and the Grid Operator
shall pay interest on all such amounts for each day from and including
the originally scheduled Payment Date to (but excluding) the Postponed
Payment Date at such rate as shall be set from time to time by the
Executive Committee or, in the absence of such rate, at the Reserve
Interest Rate and all Pool Members who supplied electricity and the
Ancillary Services Provider on such Settlement Day shall be entitled to
receive in addition to the amounts that they are entitled to receive in
respect of such supplies, interest on such amounts for each day during
the same period and at the same rate. Interest shall accrue from day to
day and shall be calculated by the Pool Funds Administrator on a 365
day year basis.
17.11 Further notification: Where instructed by the Executive Committee, or
where there is an award by a Court of competent jurisdiction or an
arbitrator, or a decision of the Pool Auditor or where rendered
appropriate by Clause 52, the Pool Funds Administrator shall issue
further or other notification to the Pool Members, the Ancillary
Services Provider and the Grid Operator in accordance with the
provisions of this Section 17; and the Business Day which falls five
Business Days after the date of such notification or earlier if
practicable shall be a Payment Date.
17.12 Payment by Pool Debtor: Without prejudice to its obligations in respect
of supplies of electricity in accordance with the provisions of the
Agreement, each Pool Debtor shall without defence, set-off or
counterclaim (but without prejudice to any other rights or remedies
available to such Pool Debtor) make payment on the relevant Payment
Date of the full amount (including United Kingdom Value Added Tax) so
notified as being payable by it for the account of those Pool Members
and, as the case may be, the Ancillary Services Provider so notified as
being entitled to receive payments. Payment shall be made in accordance
with the terms of this Schedule. For the avoidance of doubt no payment
made shall be treated as being paid on account or subject to any
condition or reservation, notwithstanding the provisions for the making
of subsequent adjusting payments provided in this Schedule. The
provisions of sub-section 5.14 shall apply to any payment insofar as it
is or may constitute an overpayment.
17.13 Liability several: Save as otherwise expressly provided, the liability
of each Pool Member and the Grid Operator for amounts payable by it
pursuant to this Schedule is several and no Pool Member shall be liable
for the default of any other Pool Member or the Grid Operator and the
Grid Operator shall not be liable for the default of any Pool Member.
18. ADVICE NOTES
18.1 Despatch of Advice Notes: Not later than 17.00 hours on the relevant
Notification Date (and, if this is not practicable, in good time (as
that expression is explained in more detail in the relevant Agreed
Procedure) to enable Pool Members, the Ancillary Services Provider and
the Grid Operator to give all necessary instructions for payments to be
effected on the relevant Payment Date) the Pool Funds Administrator
shall:-
18.1.1 despatch to Pool Members, the Ancillary Services Provider
and the Grid Operator Advice Notes showing amounts
(inclusive of United Kingdom Value Added Tax) which,
according to its calculations, are to be paid by or to each
Pool Member, the Ancillary Services Provider and the Grid
Operator on each Payment Date in respect of supplies of
electricity, the provision of Ancillary Services and sums to
be paid in relation to Transport Uplift during each
Settlement Day to which that Notification Date relates;
18.1.2 notify each Settlement Bank of amounts payable by the Pool
Members, the Ancillary Services Provider or the Grid
Operator maintaining a Settlement Account at the relevant
Settlement Bank; and
18.1.3 notify the Pool Banker of the amount to be remitted to the Pool
Clearing Account by each Settlement Bank.
18.2 Method of despatch: All Advice Notes shall be despatched by the means
established in accordance with paragraphs 3.1.1 and 3.1.5, or by such
other means as the Executive Committee may reasonably direct.
18.3 Content of Advice Notes: All Advice Notes will include an appropriate
indication if payment is being made under the provisions of paragraph
17.9.1(b), 17.9.1(c) or 17.9.2.
18.4 Interest: Where interest is payable by or to any Pool Member, the
Ancillary Services Provider or the Grid Operator pursuant to this
Schedule, the Pool Funds Administrator shall, at the same time as it
despatches the Advice Notes, despatch to each Pool Member and the
Ancillary Services Provider who is required to pay interest and to each
Pool Member, the Ancillary Services Provider and the Grid Operator who
is entitled to receive interest a statement showing the amount of
interest payable or receivable by it, the rate of interest applicable
thereto and the amount (if any) of tax to be withheld.
19. PAYMENT PROCEDURE
19.1 Instructions for payment: Each Pool Member, the Ancillary Services
Provider and the Grid Operator shall, in respect of each Payment Date
on which it is under an obligation to make a payment under this
Schedule, make such arrangements as will ensure that such payment is
credited to the relevant Collection Account in sufficient time to allow
such Settlement Bank to make irrevocable arrangements to remit to the
Pool Clearing Account by 12.30 hours the amount payable by that Pool
Member, the Ancillary Services Provider or (as the case may be) the
Grid Operator in respect of that Payment Date. Each Pool Member, the
Ancillary Services Provider and the Grid Operator shall ensure all
remittances by its bank to the relevant Collection Account shall be
remittances for value on the relevant Payment Date.
19.2 Pool Funds Administrator's responsibilities:
19.2.1 As soon as practicable and in any event not later than 13.00
hours on each Payment Date the Pool Funds Administrator
shall take such action as is required to ensure that all
amounts required to be credited to each Collection Account
on such Payment Date have been so credited (or if not so
credited, the reason therefor established).
19.2.2 As soon as practicable and in any event not later than 13.30
hours on each Payment Date the Pool Funds Administrator
shall take such action as is required to ensure that all
amounts credited to each Collection Account on such Payment
Date in accordance with sub-section 19.1 have been remitted
to the Pool Clearing Account.
19.2.3 As soon as practicable and in any event not later than 14.30
hours on each Payment Date the Pool Funds Administrator
shall take such action as is required to ensure that it
verifies the actual amounts credited to each Collection
Account and remitted to the Pool Clearing Account on or
before 13.30 hours on that Payment Date and the aggregate of
such amounts.
19.3 Non-payment: If a Pool Member or the Grid Operator becomes aware that a
payment for which it is responsible will not be credited to the
relevant Collection Account by 12.30 hours on the relevant Payment
Date, it will immediately notify the Pool Funds Administrator, giving
all details available to the Pool Member or (as the case may be) the
Grid Operator. The Pool Funds Administrator shall, as soon as it
becomes aware that a payment will not be remitted, use its best
endeavours to establish the cause of non-payment.
19.4 Excess payments: If by 12.30 hours on any Payment Date the Pool Funds
Administrator is advised by a Settlement Bank that the Settlement Bank
will be making a payment in excess of the amount notified to the Pool
Member or the Grid Operator pursuant to sub-section 18.1 in respect of
that Payment Date, or if the Pool Banker notifies the Pool Funds
Administrator by 13.30 hours that amounts greater than the amounts
notified to the Pool Banker pursuant to paragraph 18.1.3 have been
credited to the Pool Clearing Account, the Pool Funds Administrator
shall use its best endeavours to ascertain the nature of the excess
payment, to calculate the entitlement to such payment and to instruct
the Pool Banker by 14.30 hours that day to credit the appropriate
Settlement Account(s) with the amount determined by the Pool Funds
Administrator as falling due to each Pool Creditor in accordance with
this Schedule provided that, where an External Pool Member makes a
payment in excess of the amount owing by it on any Payment Date and the
reason for such overpayment is the difficulty in remitting funds on a
future Payment Date because of the mismatch of bank and public holidays
between countries, the Pool Funds Administrator shall instruct the Pool
Banker to credit the Pool Reserve Account with the amount of the
excess. Any Pool Member or the Grid Operator who instructs its bank to
make a payment in excess of the amount owing by that Pool Member or (as
the case may be) the Grid Operator on any Payment Date shall
simultaneously with giving such instructions advise the Pool Funds
Administrator in writing of the amount of the excess payment providing
a description of what the Pool Member or the Grid Operator considers
the excess payment relates to.
19.5 Payment to Pool Creditors: The Pool Funds Administrator shall, prior to
14.30 hours on each day, calculate the amounts available for
distribution to Pool Creditors on that day. As soon as practicable and
not later than 14.30 hours on that day the Pool Funds Administrator
shall give irrevocable instructions to the Pool Banker to remit from
the Pool Clearing Account to the relevant Settlement Accounts
maintained by the Pool Creditors the aggregate of amounts determined by
the Pool Funds Administrator to be available for payment to Pool
Creditors and, if required, to transfer amounts from the Pool Reserve
Account or the Pool Borrowing Account to the Pool Clearing Account or
vice versa.
19.6 Making good the Pool Reserve Account: If the Pool Reserve Account is
debited or credited in or towards clearing the Pool Clearing Account,
the Pool Funds Administrator shall as soon as possible thereafter take
the necessary steps, including making any calculations or taking any
action in accordance with Section 21, to reverse the debit or credit to
the Pool Reserve Account and/or to make a call under a Letter of
Credit.
19.7 Prohibition on transfers: The Pool Funds Administrator shall not at
any time instruct the Pool Banker to transfer any sum from a Pool
Account to another account (not being a Pool Account) unless that
account is a Settlement Account.
19.8 Application of payments: Where payments in respect of more than one
Settlement Day are required to be settled on a Payment Date, payments
in respect of the longest outstanding Settlement Day shall be, and be
deemed to be, settled first.
19.9 Bank contacts: Upon written request of the Pool Funds Administrator
each Pool Member, the Ancillary Services Provider and the Grid Operator
shall provide the Pool Funds Administrator in writing with the name of,
and communication details for, one or more individuals at the branch of
its Settlement Bank from which payments or payment instructions
required to be made or given by it pursuant to this Schedule originate
(the "Local Branch") who is (are) familiar with the payment procedures
set out in this Section 19 applicable to such Pool Member, the
Ancillary Services Provider or (as the case may be) the Grid Operator,
and shall promptly advise the Pool Funds Administrator in writing of
any change of any such individual or his communication details. Each
Pool Member, the Ancillary Services Provider and the Grid Operator
hereby authorises the Pool Funds Administrator to contact any such
individual to enquire in respect of any Payment Date whether and in
respect of what amount instructions have been given for the remittance
of any payment required to be made by such Pool Member, the Ancillary
Services Provider or (as the case may be) the Grid Operator under this
Schedule and/or whether such payment has been remitted or otherwise
made as provided for in this Schedule, and undertakes not to withdraw,
qualify or revoke such authority at any time. Each Pool Member, the
Ancillary Services Provider and the Grid Operator shall instruct its
Local Branch to co-operate with the Pool Funds Administrator
accordingly and to provide the Pool Funds Administrator with all such
information as is necessary to answer such enquiries. The Pool Funds
Administrator shall comply with all reasonable security arrangements
imposed by the relevant Pool Member, the Ancillary Services Provider or
the Grid Operator or any Local Branch.
20. ALTERNATIVE PAYMENT PROCEDURE
20.1 Alternative Payment procedure: Without prejudice to other obligations
in the Agreement not substituted by the provisions of this Section 20,
the provisions set out in this Section 20 shall apply:-
20.1.1 if, on the Effective Date, it has not been possible to
establish the Notified Payments System (in which case they
shall continue to apply until the Notified Payments System
is established, or until such other time as the Executive
Committee may determine); or
20.1.2 if, for any reason, it is not possible to apply the
procedures contemplated by the Notified Payments System and
for so long as it is not possible to apply such procedures.
20.2 Pool Debtor to effect remittance: Each Pool Debtor shall, in respect of
each Payment Date on which it is under an obligation to make a payment
under the Agreement, give instructions to its bank, which it undertakes
not to qualify, withdraw or revoke, to effect remittance to the Pool
Clearing Account of the amount payable by that Pool Debtor to be
received on that Payment Date.
20.3 Receipt of remittance: Any remittance must be received by the Pool
Banker in the Pool Clearing Account no later than 12.30 hours on the
Payment Date unless arrangements have been made between the Pool Banker
and the relevant Pool Member or the Grid Operator (as the case may be)
which shall be notified to the Pool Funds Administrator and which are
satisfactory to the Pool Banker such that funds will be received for
value on that Payment Date. The Pool Members and the Grid Operator
shall ensure that instructions are given to their banks in sufficient
time to ensure that their respective banks comply with this time limit.
20.4 Method of remittance: The Parties acknowledge and agree that when
practicable to give effect to sub-section 20.3 a Pool Debtor shall
cause remittances to be effected through CHAPS but, where not
practicable or where the amount payable is less than the minimum
individual amount then processed through CHAPS, the Pool Member and the
Grid Operator shall ensure by whatever means at their disposal that
remittance for value on the relevant Payment Date is made for credit to
the Pool Clearing Account not later than 12.30 hours.
20.5 Notification of non-payment: The Parties acknowledge and agree that if
a Pool Debtor becomes aware that a payment for which it is responsible
will not be remitted to the Pool Banker by 12.30 hours on the relevant
day, and where satisfactory arrangements, as referred to in sub-section
20.3 have not been made, it shall immediately notify the Pool Funds
Administrator, giving all details available to that Pool Debtor.
20.6 Payment default: If the Pool Funds Administrator determines at any time
after 12.30 hours on any day that a remittance which should have been
credited on that day to the Pool Clearing Account has not been made (or
that the credit has not been received) (in whole or in part) and where
satisfactory arrangements, as referred to in sub-section 20.3, have not
been made, the provisions of Section 21 shall apply mutatis mutandis.
20.7 Late payment: If, after the Pool Funds Administrator has either debited
the Pool Reserve Account or made a call under a Letter of Credit, the
Pool Banker receives the remittance which had not been credited to the
Pool Clearing Account by 12.30 hours, then such remittance shall be
credited to the Pool Reserve Account.
20.8 Payments to Pool Creditors: The Pool Funds Administrator shall, prior
to 14.30 hours on each day, calculate the amounts available for
distribution to Pool Creditors on that day (including amounts resulting
from the application of sub-section 20.6). Not later than 14.30 hours
on that day the Pool Funds Administrator shall give instructions to the
Pool Banker, which it undertakes not to qualify, withdraw or revoke, to
make same day value remittances to the Pool Creditors.
20.9 Construction: Where the provisions of this Section 20 apply references
in Sections 5 and 18 and sub-section 21.1 to "Settlement Bank" and
"Collection Account" shall be construed as references to "bank" and
"Pool Clearing Account" respectively.
21. PAYMENT DEFAULT
21.1 Payment default: Subject as provided by sub-section 21.12, if, by 12.30
hours on a Payment Date, the Pool Funds Administrator has been notified
by a Settlement Bank or it otherwise has reason to believe that a
Settlement Bank will not remit to the Pool Clearing Account all or any
part (the "amount in default") of any amount which has been notified
by the Pool Funds Administrator as being payable by a Pool Debtor (the
"non-paying Pool Debtor") on the relevant Payment Date in sufficient
time to ensure that such amount can be cleared through the Pool
Clearing Account not later than the close of banking business on such
Payment Date, the Pool Funds Administrator shall act in accordance
with the following provisions (or whichever of them shall apply) in
the order in which they appear until the Pool Funds Administrator is
satisfied that the Pool Clearing Account will clear not later than the
close of business on the relevant Payment Date:-
21.1.1 if the Pool Funds Administrator has been able to identify
the non-paying Pool Debtor in sufficient time to apply this
paragraph 21.1.1 and to the extent that the non-paying Pool
Debtor is entitled to receive payment from any Pool Debtor
pursuant to this Schedule on the relevant Payment Date, then
the Pool Funds Administrator shall (unless it reasonably
believes that such set-off shall be unlawful) set off the
amount of such entitlement against the amount in default;
21.1.2 if the Pool Funds Administrator has been able to identify
the non-paying Pool Debtor in sufficient time to apply this
paragraph 21.1.2, the Pool Funds Administrator shall debit
the Pool Reserve Account and credit the Pool Clearing
Account with a sum not exceeding the amount of funds
standing to the credit of the non-paying Pool Debtor in the
Pool Reserve Account;
21.1.3 subject to sub-section 21.2, the Pool Funds Administrator shall
debit the Pool Reserve Account and credit the Pool Clearing
Account with a sum not exceeding the amount of funds then
standing to the credit of the Pool Reserve Account to the extent
that they represent Security Cover provided in accordance with
paragraph 15.1.2, the transfer of such amount as is not
attributable to the funds standing to the credit of the
non-paying Pool Debtor being deemed to give rise to a series of
loans to the non-paying Pool Debtor by each Providing Member and
the Grid Operator rateably according to its share of the funds
standing to the credit of the Pool Reserve Account to the extent
that they represent Security Cover provided in accordance with
paragraph 15.1.2, at the time immediately prior to the transfer,
such loans to be repayable on demand and to carry interest at the
Reserve Interest Rate and in any case repayable not later than
two Business Days after they arise after which, to the extent
that any such loans remain outstanding, such loans shall carry
interest at the Default Interest Rate (which interest shall be
credited to the Pool Ledger Account of the relevant Providing
Member and (where applicable) the Grid Operator). Each Providing
Member and the Grid Operator hereby irrevocably authorises the
Pool Funds Administrator to advance, collect in and enforce
payment of such loans for its account and on its behalf and each
Pool Member and the Grid Operator hereby irrevocably consents to
the making of such loans to the extent that such Pool Member or
(as the case may be) the Grid Operator has a share in the Pool
Reserve Account;
21.1.4 if the Pool Funds Administrator has been able to identify
the non-paying Pool Debtor in sufficient time to apply this
paragraph 21.1.4 and provided that the Pool Funds
Administrator is satisfied that the proceeds of a call under
the Letter of Credit will be paid into the Pool Clearing
Account in sufficient time to ensure that it will clear not
later than the close of business on the relevant Payment
Date, the Pool Funds Administrator shall make a call under
the Letter of Credit supplied by the non-paying Pool Debtor
in a sum not exceeding the available amount of such Letter
of Credit, and the Pool Funds Administrator shall cause the
proceeds of such call to be paid into the Pool Clearing
Account;
21.1.5 subject to sub-section 21.2 and provided that the Pool Funds
Administrator is satisfied that the proceeds of a call under a
Letter of Credit will be paid into the Pool Clearing Account in
sufficient time to ensure that it will clear not later than the
close of business on the relevant Payment Date, the Pool Funds
Administrator shall make a call under one or more Letters of
Credit supplied by Pool Members or the Grid Operator (other than
the non-paying Pool Debtor) in a total sum not exceeding the
total available amount of all such Letters of Credit to the
extent that such amount represents Security Cover provided in
accordance with paragraph 15.1.2, and the Pool Funds
Administrator shall cause the proceeds of such call or calls to
be paid into the Pool Clearing Account. The transfer of such
proceeds into the Pool Clearing Account shall be deemed to give
rise to a series of loans to the non-paying Pool Debtor by each
Providing Member or the Grid Operator whose Letter of Credit was
called rateably according to the amounts called under their
respective Letter of Credit, such loans to be repayable on demand
and to carry interest at the Reserve Interest Rate and in any
case repayable not later than two Business Days after they arise
after which, to the extent that any such loans remain
outstanding, such loans shall carry interest at the Default
Interest Rate (which interest shall be credited to the Pool
Ledger Account of the relevant Providing Member and (where
applicable) the Grid Operator). Each Providing Member and the
Grid Operator hereby irrevocably authorises the Pool Funds
Administrator to advance, collect in and enforce payment of such
loans for its account and on its behalf and each Pool Member and
the Grid Operator hereby irrevocably consents to the making of
such loans to the extent that such Pool Member or (as the case
may be) the Grid Operator has a share in the Pool Reserve
Account; and
21.1.6 if and to the extent that, notwithstanding application of
the foregoing measures, it is not possible to clear the Pool
Clearing Account by any of the foregoing means, the Pool
Funds Administrator shall reduce payments to all Pool
Creditors in proportion to the amounts payable to them on
the relevant Payment Date by an aggregate amount equal to
the amount necessary to clear the Pool Clearing Account and
shall account for such reduction in the Pool Ledger Accounts
as amounts due and owing by the non-paying Pool Debtor to
each Pool Creditor whose payments were reduced.
21.2 Amount in default likely to be remedied: The Pool Funds Administrator
shall not apply paragraph 21.1.3 or 21.1.5 unless it considers in good
faith that the amount in default is likely to be remedied by the
non-paying Pool Debtor no later than the next Business Day and in such
a case the Pool Funds Administrator shall only apply paragraphs 21.1.2
and 21.1.4 to the extent of any amounts provided by way of Security
Cover pursuant to paragraph 15.1.2.
21.3 Loans part of Pool Reserve Assets: Any loans arising pursuant to
paragraph 21.1.3 or 21.1.5 shall be deemed to constitute part of the
Pool Reserve Assets and all repayments of such loans, together with
interest thereon, shall be paid into the Pool Reserve Account for the
account of each Providing Member or the Grid Operator who is deemed to
have made such loan.
21.4 Repayment of loans: If any loans to a non-paying Pool Debtor arising
pursuant to paragraph 21.1.3 or 21.1.5 shall not have been repaid in
full (together with interest at the rate or rates specified therein) by
12.00 hours on the next Business Day after such loan is deemed to have
arisen, the Pool Funds Administrator shall make a call under the Letter
of Credit (if any) which shall have been supplied by the non-paying
Pool Debtor and which remains outstanding in an amount not exceeding
the amount necessary to repay such loans and all accrued interest in
full and, if the proceeds of any Letter of Credit are insufficient to
repay all outstanding loans to the relevant non-paying Pool Debtor,
such proceeds shall be applied towards repayment of each such
outstanding loan rateably.
21.5 Reduction of payments to Pool Creditors: If, after the date that any
loans to a non-paying Pool Debtor arise pursuant to paragraph 21.1.3 or
21.1.5, the Pool Funds Administrator shall reasonably be of the opinion
that the non-paying Pool Debtor will not repay forthwith all of such
loans and all accrued interest in full or the loans have not been
repaid with all interest within two Business Days after they arose
(whichever occurs first), the Pool Funds Administrator shall reduce
payments to all Pool Creditors in proportion to the amounts payable to
them on the Payment Date to which the default relates and any
succeeding Payment Dates as may be required by an aggregate amount
necessary to restore the balance in the Pool Reserve Account to the sum
for the time being required under this Schedule to be deposited by the
Pool Members and the Grid Operator other than the non-paying Pool
Debtor, to the intent that all loans arising under paragraphs 21.1.3
and 21.1.5 and remaining undischarged after application of the
non-paying Pool Debtor's Letter of Credit are discharged in full
together with interest thereon at the Reserve Interest Rate.
21.6 Obligation to make calls: If and whenever the Pool Funds
Administrator has not applied the provisions of paragraph 21.1.4,
and has reduced payments to Pool Creditors in accordance with
paragraph 21.1.6, it shall, on the relevant Payment Date or so
soon thereafter as the non-paying Pool Debtor has been identified
(but, in any event, not later than the close of business on the
Business Day following such Payment Date) make a call under the
Letter of Credit supplied by the non-paying Pool Debtor in a sum
sufficient to cover the reduction made under paragraph 21.1.6
(but not exceeding the available amount of all such Letters of
Credit) and the Pool Funds Administrator shall cause the proceeds
of such call to be paid forthwith into the Pool Reserve Account.
On the next Business Day following receipt of such proceeds, the
Pool Funds Administrator shall pay such amounts as have been
credited to the Pool Reserve Account to the Pool Creditors whose
payments were reduced in full or (as the case may be) in
proportion to their respective entitlements including interest on
such amounts at the Reserve Interest Rate.
21.7 Indemnification by non-paying Pool Debtor: The non-paying Pool
Debtor shall indemnify and keep indemnified each Pool Member and
the Grid Operator whose Letter of Credit is called under
paragraph 21.1.5 and/or who is deemed to have made loans under
paragraph 21.1.3 or 21.1.5 on demand against all costs, expenses
and losses (including the costs of management time) suffered or
incurred by such Pool Member or (as the case may be) the Grid
Operator arising from its Letter of Credit being so called
(including the costs of reinstating the same) or such loans being
deemed to have been made to the extent that such Pool Member or
(as the case may be) the Grid Operator is not compensated under
this Section 21. This indemnity shall be in addition to and
without prejudice to the liability of the non-paying Pool Debtor
to repay the loan, together with accrued interest, which arises
pursuant to paragraph 21.1.5. The Pool Creditors, in proportion
to the amounts payable to them on the Payment Date to which a
default relates in respect of which the Pool Funds Administrator
has operated sub-section 21.5, and any succeeding Payment Dates
as may be required, shall indemnify and keep indemnified each
Pool Member as is referred to in the earlier provisions of this
sub-section 21.7 and the Grid Operator to the extent of any
failure by the non-paying Pool Debtor to fulfil its obligations
under this sub-section 21.7.
21.8 Notification to Pool Creditors: The Pool Funds Administrator shall use
all reasonable endeavours promptly to notify the relevant Pool
Creditors whenever it makes any such reduction as is referred to in
paragraph 21.1.6.
21.9 Default Interest: Save as otherwise provided in the Agreement
(including where an express rate of interest is provided), if any
amount payable by any Pool Debtor pursuant to this Schedule is not
given value for the due date by close of banking business on the due
date the Pool Debtor shall on written demand by the Pool Funds
Administrator pay to the Pool Funds Administrator, for the account of
the person or persons entitled to receive the amount in default,
interest on such amount from the due date up to the day of actual
receipt by the Pool Funds Administrator (after as well as before
judgment) at the Default Interest Rate.
21.10 Application of payments: Any amount received by the Pool Funds
Administrator from a non-paying Pool Debtor for the credit of any Pool
Account shall be applied by the Pool Funds Administrator in or towards
payment of amounts payable by the non-paying Pool Debtor to Pool
Creditors on each successive Payment Date in respect of which there is
an outstanding default (with the longest outstanding default being
settled first).
21.11 Clearing of Pool Clearing Account: All amounts standing to the credit
of the Pool Clearing Account at the close of business on any Payment
Date shall be transferred to the Pool Reserve Account so that the
balance in the Pool Clearing Account shall at the end of such day be
nil.
21.12 Credit Facility: If and for so long as the Credit Facility remains
unconditionally available, the provisions of this Section 21 shall
apply with the modifications provided by Section 25.
22. CONFIRMATION NOTICES
22.1 Despatch of Confirmation Notices: Within two Business Days after each
Payment Date the Pool Funds Administrator shall issue a Confirmation
Notice to each Pool Member, the Ancillary Services Provider and the
Grid Operator in respect of the corresponding Payment Date setting out
the information required in sub-sections 22.2, 22.3 and 22.4.
22.2 Information - taking of electricity: The information required on a
Confirmation Notice in respect of each Pool Member taking electricity on
each Settlement Day is as follows:-
22.2.1 the Pool Member's identification number;
22.2.2 the Pool Member's name;
22.2.3 the total amount (inclusive of United Kingdom Value Added
Tax) received in the Pool Clearing Account on the relevant
Payment Date by the Pool Funds Administrator in respect of
electricity taken by such Pool Member during the Settlement
Day and Ancillary Services attributable thereto;
22.2.4 the amount received in the Pool Clearing Account on the
relevant Payment Date by the Pool Funds Administrator in
respect of electricity taken by such Pool Member during the
Settlement Day and Ancillary Services attributable thereto,
exclusive of United Kingdom Value Added Tax; and
22.2.5 the amount of United Kingdom Value Added Tax received in the
Pool Clearing Account on the Payment Day by the Pool Funds
Administrator in respect of electricity taken by such Pool
Member during the Settlement Day and Ancillary Services
attributable thereto.
22.3 Information - supplies of electricity: The information required on a
Confirmation Notice in respect of each Pool Member supplying electricity on
each Settlement Day shall include:-
22.3.1 the Pool Member's identification number;
22.3.2 the Pool Member's name;
22.3.3 the Settlement Run identification number;
22.3.4 the total amount (inclusive of United Kingdom Value Added
Tax) paid out of the Pool Clearing Account on the relevant
Payment Date by the Pool Funds Administrator in respect of
electricity supplied by such Pool Member during the
Settlement Day;
22.3.5 the amount paid out and the date on which such amount is
paid out of the Pool Clearing Account on the relevant
Payment Date by the Pool Funds Administrator in respect of
electricity supplied by such Pool Member during the
Settlement Day exclusive of United Kingdom Value Added Tax
and the Settlement Run identification number; and
22.3.6 the amount of United Kingdom Value Added Tax paid out of the
Pool Clearing Account on the relevant Payment Date by the
Pool Funds Administrator in respect of electricity supplied
by such Pool Member during the Settlement Day.
22.4 Information - Ancillary Services Provider and Grid Operator: The
information required on a Confirmation Notice in respect of the Ancillary
Services Provider and the Grid Operator is as follows:-
22.4.1 the total amount receivable by the Ancillary Services
Provider for the provision of Ancillary Services and the
total amount payable by the Grid Operator in relation to
Transport Uplift (in each case exclusive of United Kingdom
Value Added Tax) during the Settlement Day;
22.4.2 the total amount receivable by the Ancillary Services
Provider for the provision of Ancillary Services and the
total amount payable by the Grid Operator in relation to
Transport Uplift (in each case inclusive of United Kingdom
Value Added Tax) during the Settlement Day; and
22.4.3 the total amount of United Kingdom Value Added Tax
receivable by the Ancillary Services Provider for the
provision of Ancillary Services and the total amount payable
by the Grid Operator in relation to Transport Uplift during
the Settlement Day.
22.5 Interest: Where interest has been paid to any Pool Member, the
Ancillary Services Provider or the Grid Operator, the Pool Funds
Administrator shall promptly after such payment provide to each Pool
Member, the Ancillary Services Provider or the Grid Operator (as the
case may be) a statement showing the amount of interest paid or
received, the rate of interest applicable thereto and the amount (if
any) of tax withheld. If applicable, the Pool Funds Administrator shall
provide to the relevant Pool Member, the Ancillary Services Provider or
the Grid Operator an appropriate tax deduction certificate in respect
of any withholding tax.
23. PAYMENT ERRORS
23.1 Overpayments: If for any reason whatsoever (including the negligence of
the Pool Banker or the Pool Funds Administrator) a Pool Creditor
receives on any Payment Date a payment in excess of the amount
disclosed in the Pool Ledger Account as calculated as being payable to
it (an "overpayment") (including but not limited to the proceeds of any
loan made or deemed to be made in accordance with Section 21 or Section
25 to any non-paying Pool Debtor which becomes insolvent before such
advance is repaid) the provisions of sub-section 5.15 apply, and the
Pool Creditor shall forthwith notify the Pool Funds Administrator of
the amount of the overpayment and shall forthwith pay the overpayment
into a Pool Account specified by the Pool Funds Administrator.
23.2 Repayment of overpayment (1): If prior to a Pool Creditor notifying the
Pool Funds Administrator of the overpayment, the Pool Funds
Administrator receives notice (from the Pool Banker or otherwise) of
the overpayment, the Pool Funds Administrator shall forthwith require
(by written notice) that the recipient of the overpayment pay the
overpayment to a Pool Account specified by the Pool Funds Administrator
and any Pool Creditor who receives such notice shall forthwith pay the
amount to an account specified by the Pool Funds Administrator. If the
overpayment is repaid within two Business Days of receiving the notice,
the overpayment (or any part not paid) shall bear interest at the
Reserve Interest Rate or at such rate as shall be set from time to time
by the Executive Committee from the date the overpayment was received
up to the date that value is given in a Pool Account by the Pool Funds
Administrator (after as well as before judgment). Any overpayment (or
part thereof) not repaid within two Business Days after demand therefor
in accordance with this Section 23 shall bear interest at the Default
Interest Rate from the expiry of that period and shall be recoverable
in accordance with Section 24. The Pool Funds Administrator shall
account to those entitled to payment by reason of an overpayment.
23.3 Repayment of overpayment (2): Upon receipt of the overpayment
(including any interest) the Pool Funds Administrator shall (forthwith
upon entitlement to it being ascertained) pay the amount received to
the Pool Member, the Ancillary Services Provider or the Grid Operator
who should have received the payment on the Payment Date.
23.4 Underpayments: If for any reason whatsoever (including the negligence
of the Pool Banker or the Pool Funds Administrator) a Pool Creditor
does not receive on the relevant Payment Date the full amount disclosed
as owing to it pursuant to the Pool Ledger Account (an "underpayment")
that Pool Creditor shall forthwith notify the Pool Funds Administrator
of the amount of the underpayment, and the Pool Funds Administrator
after consultation with the Pool Banker shall use all reasonable
endeavours to identify such person as shall have received any
corresponding overpayment and promptly to correct the underpayment. If,
by reason of negligence, the Pool Funds Administrator holds or has
under its control amounts which it ought properly to have paid to Pool
Members, the Ancillary Services Provider or the Grid Operator, such
Pool Members, the Ancillary Services Provider or the Grid Operator
shall be entitled to interest on such amounts at the Default Interest
Rate and for such period as the Pool Funds Administrator improperly
holds or has such amounts under its control.
24. ENFORCEMENT OF CLAIMS
24.1 Notification of amount in default: Without prejudice to the provisions
of Section 21, if a Pool Member or the Grid Operator shall fail to pay
any amount payable pursuant to this Schedule on the due date, the Pool
Funds Administrator shall notify the Director, the Executive Committee
and each Pool Creditor to whom the amount in default is owed pursuant
to this Agreement of the name of the non-paying Pool Debtor, the
aggregate amount in default and the amount owed to each Pool Creditor.
24.2 Duties of Pool Funds Administrator: Except as otherwise expressly
provided in this Schedule, the Pool Funds Administrator shall not be
required to ascertain or enquire as to the performance or observance by
any Pool Member, the Ancillary Services Provider or the Grid Operator
of its obligations under the Agreement and shall have no duty to inform
the Executive Committee or any Pool Member, the Ancillary Services
Provider or the Grid Operator of any default, other than a failure to
pay as may come to its attention.
24.3 Notice before action: Each Pool Creditor shall give notice to the Pool
Funds Administrator before instituting any action or proceedings in any
court to enforce payments due to it pursuant to this Schedule. Upon
receipt of any notice under this sub-section 24.3, the Pool Funds
Administrator will as soon as practicable notify the Executive
Committee, all Pool Members, the Settlement System Administrator, the
Ancillary Services Provider, the Grid Operator and the Director.
24.4 Proceedings to Recover Overdue Amounts: Without prejudice to the right
of any Pool Member or the Grid Operator to bring such proceedings as it
sees fit in connection with matters related to the Agreement, the Pool
Funds Administrator shall, if instructed to do so by the Executive
Committee, bring proceedings against a Pool Member or the Grid Operator
(on behalf of those Pool Members and/or (as the case may be) the Grid
Operator who have (has) indicated their (its) willingness to the
Executive Committee for the Pool Funds Administrator first so to act)
for the recovery of any amounts due by that Pool Member or (as the case
may be) the Grid Operator pursuant to this Schedule so long as the Pool
Funds Administrator has first reached agreement with the Executive
Committee, those Pool Members and/or (as the case may be) the Grid
Operator as to appropriate remuneration, is indemnified to its
reasonable satisfaction or, if it so requires, provided that it shall
have received such security as it may reasonably request against all
costs, claims, expenses (including legal fees) and liabilities which it
will or may sustain or incur in complying with such instructions. Save
as provided in the foregoing provisions of this sub-section 24.4, the
Pool Funds Administrator shall not be obliged to bring any such
proceedings.
25. CREDIT FACILITY: PAYMENT DEFAULTS
25.1 Purpose of Credit Facility: It is acknowledged that the Credit Facility
provides an alternative to the Security Cover referred to in paragraph
15.1.2 and the Pool Funds Administrator will use the Credit Facility to
cover banking error and payment error and to minimise reductions of
payments to Pool Creditors unless it considers in good faith that an
amount in default is not likely to be remedied by the non-paying Pool
Debtor no later than the next Business Day.
25.2 Modification of other provisions of this Schedule: If and so long as
the Credit Facility is unconditionally available to the Pool Funds
Administrator (whether or not there remains any amount undrawn),
paragraphs 15.1.2, 21.1.3 and 21.1.5 shall be of no effect and the
remaining provisions of this Schedule shall be implemented on the basis
that the following sub-sections apply.
25.3 Payment default: The Pool Funds Administrator shall operate the Credit
Facility on the following basis:-
25.3.1 the Credit Facility may be drawn down by the Pool Funds
Administrator if, by 12.30 hours on any Payment Date, there
is an amount in default unless the Pool Funds Administrator
considers in good faith that the amount in default is not
likely to be remedied by the non-paying Pool Debtor no later
than the next Business Day;
25.3.2 if paragraph 25.3.1 applies such that the Credit Facility
may be drawn down, the Pool Funds Administrator will first
act in accordance with paragraph 21.1.1, will then draw on
the Credit Facility for an amount not exceeding the
available amount under the Credit Facility (after allowing
for any repayment to be made to the Facility Bank under
sub-section 25.6) and, if it is not possible to clear the
Pool Clearing Account by either or both of those means, it
will then act in accordance with paragraph 21.1.6; and
25.3.3 if paragraph 25.3.1 does not apply, then the Pool Funds
Administrator will act in accordance first with paragraph
21.1.1, then with paragraph 21.1.2, then with paragraph
21.1.4 and only then with paragraph 21.1.6.
25.4 Amounts in default: Each non-paying Pool Debtor will be responsible in
relation to any amount in default in accordance with the following
paragraphs:-
25.4.1 each non-paying Pool Debtor will be responsible for the
repayment of all amounts of principal drawn down under the
Credit Facility in respect of any amount in default relating
to that Pool Debtor as if the Pool Funds Administrator had
made a loan to such Pool Debtor of the relevant amount and
the amounts so payable are to be paid to, or otherwise made
available for credit to, the Pool Clearing Account as soon
as possible, but in any event no later than two Business
Days after the relevant Payment Date;
25.4.2 each non-paying Pool Debtor will be responsible also for
interest (determined in accordance with paragraph 25.4.4) on
all amounts of principal drawn down under the Credit
Facility in respect of any amount in default relating to
that Pool Debtor as if the Pool Funds Administrator had made
a loan to such Pool Debtor of the relevant amount and the
amount so payable by way of interest is to be paid to, or
otherwise made available for credit to, the Pool Clearing
Account by no later than the day notified by the Pool Funds
Administrator to such Pool Debtor for payment thereof (being
the date which is 2 Business Days prior to the date on which
interest is payable under the Credit Facility by the Pool
Funds Administrator to the Facility Bank for the month in
which the principal amount in question was outstanding);
25.4.3 each non-paying Pool Debtor will further be responsible for
its proportionate share (determined in accordance with
paragraph 25.4.5) of any additional sum payable to the
Facility Bank pursuant to the terms of the Credit Facility
as if the Pool Funds Administrator had made a loan to such
Pool Debtor of the relevant amount and the amount so payable
is to be paid to, or otherwise made available for credit to,
the Pool Clearing Account forthwith on notification thereof
by the Pool Funds Administrator to the Pool Debtor in
question;
25.4.4 for the purposes of paragraph 25.4.2, interest is to be
calculated using the effective daily rate of interest
reasonably determined by the Pool Funds Administrator on the
basis of the aggregate interest (including any compound
interest) payable under the Credit Facility in relation to
any particular day; and
25.4.5 for the purposes of paragraph 25.4.3, the proportionate
share for a particular non-paying Pool Debtor is the amount
(if any) which the Pool Funds Administrator reasonably
determines (after consultation with the Facility Bank) as
being the amount of any additional sum payable in accordance
with the terms of the Credit Facility attributable to
drawings under the Credit Facility made in respect of that
Pool Debtor.
25.5 Application of payments: On the Relevant Date the Pool Funds Administrator
shall, if the amount in question has not been received in full from the
non-paying Pool Debtor:-
25.5.1 first debit the Pool Reserve Account and credit the Pool
Clearing Account with a sum not exceeding the amount of
funds (if any) standing to the credit of the non-paying Pool
Debtor in the Pool Reserve Account;
25.5.2 if that sum is insufficient to repay in full the amount in
question, the Pool Funds Administrator shall call the Letter
of Credit (if any) provided by the non-paying Pool Debtor
(for an amount not exceeding the available amount) and pay
or cause the proceeds thereof to be paid into the Pool
Clearing Account; and
25.5.3 if the amount credited to the Pool Clearing Account after
following the foregoing procedure is insufficient, reduce
payments to all Pool Creditors in proportion to the amounts
payable to them on the Payment Date to which the default
relates,
so that, in any case, the Pool Funds Administrator has available to it
on the Pool Clearing Account sufficient funds to comply with paragraph
25.6. For the purposes of this paragraph, the "Relevant Date" is
whichever of the following is applicable:-
(a) in relation to any principal amount for which a non-paying
Pool Debtor is responsible under paragraph 25.4.1, the last
date specified for payment under paragraph 25.4.1;
(b) in relation to any principal amount as referred to in
sub-paragraph (a), the first date (if earlier than the date
referred to in sub-paragraph (a)) on which the Pool Funds
Administrator is reasonably of the opinion that the
non-paying Pool Debtor will not repay forthwith all of the
amounts of principal in question;
(c) in relation to payment of interest under paragraph 25.4.2, the last
date for payment thereof; and
(d) in relation to an additional amount under paragraph 25.4.3 the last
date for payment of this amount.
25.6 Payments to Facility Bank: To the extent of any payment by the
non-paying Pool Debtor and/or if any of the circumstances described in
sub-section 25.5 occur, the Pool Funds Administrator will forthwith
repay to the Facility Bank by credit to the Pool Borrowing Account, if
applicable, an amount equal, in the former case, to the amount so paid
and, in the latter case, to the amount which should have been paid by
the non-paying Pool Debtor.
25.7 Reduction in payments to Pool Creditors: A reduction in payments as
contemplated by paragraph 25.5.3 will also apply in the event of any
amounts drawn down under the Credit Facility being required to be
repaid in accordance with the terms of the Credit Facility and the Pool
Funds Administrator shall account for such reduction in the Pool Ledger
Accounts as amounts due and owing by the non-paying Pool Debtor to each
Pool Creditor whose payments were reduced.
25.8 Enforcement of Claims and other provisions: Sub-sections 21.7, 21.8, 21.9,
21.10 and Section 24 shall have effect in relation to amounts due from a
non-paying Pool Debtor which arise under the foregoing sub-sections.
25.9 Unavailability of Credit Facility: If at any time the Credit Facility
ceases to be unconditionally available and paragraph 15.1.2 shall
thereupon have become effective, the whole or any part of the Security
Cover thereby required to be provided by each Providing Member or the
Grid Operator may be provided by a credit to the Pool Reserve Account,
unless otherwise determined by the Executive Committee. The Executive
Committee shall from time to time assess (in consultation with the Pool
Funds Administrator) and determine the amount of Security Cover which
would be required pursuant to paragraph 15.1.2 as if that paragraph
were in effect and such assessment and determination shall apply for
the purposes of paragraph 16.2.2 if paragraph 15.1.2 becomes
applicable, pending any revised assessment by the Executive Committee.
25.10 Interpretation: Terms and expressions used in this Section 25 shall,
unless the context otherwise requires, have the same meanings as are
given to them for the purposes of Clause 21.
26. CREDIT FACILITY: GENERAL
26.1 Notifications to the Executive Committee: The Pool Funds Administrator
shall notify the Executive Committee forthwith:-
26.1.1 on it becoming aware of any circumstances which might lead
to an event under the Credit Facility as a result of which
the Credit Facility might cease to be available; and
26.1.2 upon receipt of a written demand from the Facility Bank
pursuant to the terms of the Credit Facility as a result of which
the Facility ceases to be available; and
26.1.3 in the event that the Facility Bank requires any additional
amount to be paid under the Credit Facility by reason of any
increased costs to the Facility Bank or any changes in
circumstances.
26.2 Notifications to Providing Members and the Grid Operator: The Pool
Funds Administrator shall notify the Providing Members and the Grid
Operator as soon as reasonably practicable after receipt by it of a
notice from the Facility Bank that an additional amount will or may be
payable by the Pool Funds Administrator to the Facility Bank under the
terms of the Credit Facility.
26.3 Amendment and Cancellation:
26.3.1 The Pool Funds Administrator shall not:-
(a) amend or supplement, or agree to any amendment or
supplement to, the terms of the Credit Facility
without the approval of the Executive Committee; or
(b) cancel the Credit Facility unless either the approval of
the Executive Committee has been obtained or paragraph 26.3.2 applies.
26.3.2 The Pool Funds Administrat or shall cancel the Credit Facility
in full at any time if a resolution to that effect is passed (on
a simple majority vote) by the Providing Members in separate
general meeting and the Grid Operator
consents or if all Providing Members and the Grid Operator have
requested such cancellation.
26.4 Extension and Renewal: The Pool Funds Administrator shall negotiate
with the Facility Bank an extension or renewal of the Credit Facility
on the instructions of the Executive Committee and, in the absence of
such instructions, shall begin negotiations with the Facility Bank no
later than ten weeks before the Credit Facility is due to terminate in
accordance with its terms, with a view to the extension or renewal of
the Credit Facility on substantially the same terms for a further year
and, in any event, to keep the Executive Committee informed on a timely
basis of the progress of any such negotiations. The Pool Funds
Administrator shall, however, act only with the approval and consent of
the Executive Committee in agreeing any extension or renewal of the
Credit Facility and the Executive Committee shall be responsible for
deciding whether or not to renew or extend the Credit Facility and, if
so, on what terms and for what period.
26.5 Fees not attributable to a particular Providing Member or the Grid
Operator: Any fees (and any additional amounts payable under the terms
of the Credit Facility which are not the responsibility of any
particular Providing Member or the Grid Operator) charged under the
Credit Facility to the Pool Funds Administrator shall be recharged to
the Providing Members, in accordance with their respective Providing
Member Contributory Shares (to be calculated on the basis of those
current on the date on which the relevant fee (or the relevant portion
thereof) or additional amount is payable by the Pool Funds
Administrator under the Credit Facility and having deducted the
relevant Credit Facility Contribution).
26.6 Fees attributable to the Grid Operator: The Grid Operator shall, from
the date on which it first becomes a Pool Debtor and for the period
thereafter during which the Credit Facility is in place, pay each year
to the Pool Funds Administrator the Credit Facility Contribution on a
date agreed from time to time by the Grid Operator and the Pool Funds
Administrator (and, failing such agreement, on 31st January in each
year). If the Credit Facility is available for part of a year only, the
Credit Facility Contribution shall be adjusted accordingly on a pro
rata basis.
26.7 No additional charge: The Pool Funds Administrat or shall not make any
additional charge for arranging, participating in or administering the
Credit Facility.
ANNEX 1
Form of Advice Note
ADVICE NOTE
DATE: Energy Pool Funds Administration Ltd
Room 157.2
185 Park Street
London SE1 9DY
TELEPHONE: (0171) 620 9456
FAX NO: (0171) 401 2799
NAME:
ADDRESS:
ADVICE NOTE:
PAYMENT DATE:
FAX NO:
THIS IS NOT A TAX INVOICE
Advice Note issued in accordance with the Pooling and Settlement Agreement for
the Electricity Industry in England and Wales dated 30th March 1990 as amended,
varied or supplemented from time to time.
SETTLEMENT DATE RUN/TYPE DESCRIPTION AMOUNT PAYABLE AMOUNT PAYABLE
EXC VAT INC VAT
DO NOT NET YOUR PAYABLES TO YOUR RECEIVABLES
A wholly owned subsidiary of The National Grid Company plc. Regd. in England
No. 2444187 VAT No 547 8630 11
ANNEX 2
Form of Confirmation Notice
CONFIRMATION NOTICE
DATE: Energy Pool Funds Administration Limited
Room 157.2
185 Park Street
London SE1 9DY
TELEPHONE:
FAX NO:
TELEX:
NAME:
ADDRESS:
CONFIRMATION NO:
PAYMENT DATE:
FAX NO:
Confirmation notice issued in accordance with the Pooling and Settlement
Agreement for the Electricity Industry in England and Wales dated 30th March
1990 as amended, varied or supplemented from time to time.
THIS IS A TAX INVOICE
PAYMENT DATE SETTLEMENT DATE DESCRIPTION AMOUNT PAID EXC VAT VAT RATE VAT PAID AMOUNT PAID INC
VAT
A wholly owned subsidiary of The National Grid Company plc. Regd. in England No 2444187 VAT No 547 8630 11
ANNEX 3
Part 1
Form of Settlement Account Designation
To: Energy Pool Funds Administration Limited
as Pool Funds Administrator
and
Barclays Bank PLC
54 Lombard Street Branch
as Pool Banker
Date:
Settlement Account Designation
1. [Insert name of Pool Member/Ancillary Service Provider/Grid Operator]
hereby designates the following account as its Settlement Account to
which you are instructed to remit all amounts which are payable to us
through the Pool Clearing Account in accordance with Schedule 11 to the
Pooling and Settlement Agreement for the Electricity Industry in
England and Wales dated 30th March, 1990, as amended, varied or
supplemented from time to time (the "Agreement").
Name of Bank Branch Address Sorting Code Name of Account Account No.
- ------------ -------------- ------------ --------------- -----------
2. We hereby designate the following account as our Settlement Account
from which all payments due from us in accordance with Schedule 11 to
the Agreement will be remitted.
Name of Bank Branch Address Sorting Code Name of Account Account No.
- ------------ -------------- ------------ --------------- -----------
Signed by ....................................................
Position .......................................................
For and on behalf of
[Name of Pool Member/Ancillary Services Provider/Grid Operator]
ANNEX 3
Part 2
Form of Change of Settlement Account
To: Energy Pool Funds Administration Limited
as Pool Funds Administrator
and
Barclays Bank PLC
54 Lombard Street Branch
as Pool Banker
In accordance with sub-section 4.6 of Schedule 11 to the Pooling and Settlement
Agreement [insert name] hereby gives you notice that, with effect from [insert
date] (or 10 Business Days after you receive this notice, whichever is later),
our new Settlement Account [from which payments due from the undersigned/to
which payments due to the undersigned]* will be paid shall be:-
Name of Bank Branch Address Sorting Code Name of Account Account No.
- ------------ -------------- ------------ --------------- -----------
Yours sincerely,
[ ]
for and on behalf of
[Name of Pool Member/Ancillary Services Provider/Grid Operator]
*Please complete as appropriate
ANNEX 4
Form of Letter of Credit
To: Energy Pool Funds Administration Limited as Pool Funds Administrator At the
request of [Providing Member] [the Grid Operator] we have opened in your
favour our irrevocable Letter of Credit Number ( ) for(pound)[ ] (amount in
words).
This Letter of Credit is available against your sight drafts accompanied by a
signed statement either that the applicant has failed to pay to you the amount
you are claiming under the terms of the Pooling and Settlement Agreement for the
electricity industry in England and Wales dated 30th March, 1990 (the
"Agreement") or that the claim is being made under sub-section 15.5 or Section
21 of Schedule 11 to the Agreement. Payments under this Letter of Credit shall
be effected immediately to [insert relevant account details].
Partial drawings are allowed hereunder.
Claims under this Letter of Credit shall be made at the counters of [insert
details of the branch of the issuing bank].
This Letter of Credit expires on [ ].
We waive any right to set off against any amount payable hereunder any claims we
may have against you.
Any demand hereunder must comply with all the above requirements [and signatures
thereon must be confirmed by your Bankers].
This Letter of Credit is subject to Uniform customs and practice for Documentary
Credits (1983 Revision) International Chamber of Commerce.
We undertake that drafts and documents drawn under and in strict conformity with
the terms of this credit will be honoured upon presentation.
This Letter of Credit shall be governed by and construed in accordance with
English law.
For and on behalf of [ ] Bank [Plc].
2
SCHEDULE 13
Contributory Shares
1. Contributory Share: The Contributory Share of a Pool Member shall be
calculated in accordance with the following provisions of this Schedule.
2. Points: Subject as provided in Section 3, in respect of each Quarter:-
2.1 each Pool Member which is a Generator shall receive in that
capacity one point (a "Point") for each MWh of Genset Metered
Generation of all Allocated Generating Units for all
Settlement Periods falling in the Votes Calculation Period
relative to such Quarter, as determined from the final run of
Settlement for each such Settlement Period; and
2.2 each Pool Member which is a Supplier shall receive in that
capacity such number of points (each a "Point") as is equal to
the total MWh of Consumer Metered Demand taken by that Pool
Member in all Settlement Periods falling in the Votes
Calculation Period relative to such Quarter, as determined
from the final run of Settlement for each such Settlement
Period.
For the purposes of this paragraph 2:-
(A) a Generating Unit shall be an Allocated Generating
Unit of a Pool Member (in this paragraph, the
"Identified Pool Member") if it belongs to the
Identified Pool
----------------------
Member as of the date on which the Executive
Committee calculates the Contributory Shares of Pool
Members for the relevant Quarter pursuant to
paragraph 6. If at any time during such Quarter an
Allocated Generating Unit shall belong to another
Pool Member (in this paragraph, the "Transferee Pool
Member"), the Contributory Shares
----------------------
attributed to the Identified Pool Member for such
Quarter by reason of the Allocated Generating Unit
belonging to it shall be transferred to the
Transferee Pool Member as of the date on which such
Allocated Generating Unit first belongs to the
Transferee Pool Member (and the Identified Pool
Member and the Transferee Pool Member shall jointly
notify the Executive Committee in writing of such
date in good time before its occurrence);
(B) a Generating Unit shall belong to a Pool Member if it
is owned by that Pool Member and not leased to
another person or if it is leased by that Pool Member
from another person;
(C) a Pool Member shall notify the Executive Committee
promptly on request of its Allocated Generating Units
and the Executive Committee and each other Party may
rely on the information in that notification and in
any notification under paragraph (A) above without
further enquiry or need to verify that information;
(D) in determining the meaning of "good time" for the
purposes of paragraph (A) above one factor to be
taken into account is that the Settlement System
Administrator must be allowed sufficient time to
effect the necessary changes in Settlement associated
with the transfer of the relevant Allocated
Generating Unit; and
(E) the Executive Committee may, upon application of any
Pool Member involved in any transfer of assets between
Pool Members during any Quarter, adjust as between the
Pool Members involved in such transfer, the number of
Points and/or Weighted Votes to which they in their
capacities as Suppliers are entitled in respect of the
remaining part of that Quarter and/or one or both of
the two immediately succeeding Quarters if, in the
opinion of the Executive Committee, such adjustment
would help accommodate the consequences of such a
transfer and not prejudice the interests of any other
Pool Member in any material respect.
3. New Pool Members: Until the third Quarter Day next falling after the
date of its admission as a Pool Member, any Party which is admitted as
a Pool Member pursuant to Clause 8.2 shall receive that number of
Points as is equal to one thousand times the number of Weighted Votes
to which such Pool Member would have been entitled under Clause
11.3.1(b) had:-
3.1 the provisions of Clause 11.3.3 been ignored; and
3.2 any applicable restrictions under Clause 11.4 been ignored,
as determined by the Executive Committee. Thereafter, such Pool
Member's Points shall be calculated in accordance with paragraph 2.
4. Calculation of Points: On or prior to each Quarter Day and at such other
times as are referred to in paragraph 6 the Executive Committee shall, on
the basis of information to be supplied by the Settlement System
Administrator as referred to in Clause 11.3.2, calculate for the Following
Quarter or (as the case may be) the remainder of the then current Quarter
the number of Points which each Pool Member whose Points are to be
calculated in accordance with paragraph 2 shall receive, and shall notify
each Pool Member and the Director in writing of the number of Points
received by all Pool Members (whether calculated in accordance with
paragraph 2 or 3). The determination of the Executive Committee as to the
number of Points of each Pool Member shall (in the absence of manifest
error) be final and binding for all purposes of this Agreement.
5. Contributory Shares: The Contributory Share of a Pool Member shall be
calculated in accordance with the following formula:-
CS = X + Y
Where:-
X = A
2 x B
Y = C
2 x D
and where:-
CS = the Contributory Share of such Pool Member, expressed as a
percentage
A = the number of Points for the time being of such Pool Member in
its capacity as a Generator
B = the number of Points for the time being of all Pool
Members which are Generators, in their capacity as
such
C = the number of Points for the time being of such Pool
Member in its capacity as a Supplier
D = the number of Points for the time being of all Pool
Members which are Suppliers, in their capacity as
such.
6. Calculation of Contributory Shares: On or prior to:-
6.1 each Quarter Day;
6.2 each date upon which a New Party is admitted, resigns or is
removed as a Pool Member; and
6.3 each date upon which there is a change in the capacity in which a
Pool Member participates as a Pool Member,
the Executive Committee shall calculate for the Following
Quarter or (as the case may be) the remainder of the then
current Quarter the Contributory Share for the time being of
each Pool Member, and shall notify each Pool Member and the
Director in writing of the Contributory Share of each of the
Pool Members. The determination of the Executive Committee as
to the Contributory Share of each Pool Member shall (in the
absence of manifest error) be final and binding for all
purposes of this Agreement.
7. Records: The provisions of Clause 11.9 shall apply mutatis mutandis in
respect of each Pool Member's Points and Contributory Share.
8. Additional Capacity: For the purposes of Section 3, any Pool Member who
acquires an additional capacity in which it participates as a Pool
Member shall be deemed to have been admitted as a new Pool Member
pursuant to Clause 8.2 in that additional capacity and, until the third
Quarter Day next falling after the date such Pool Member's application
to the Executive Committee pursuant to Clause 8.12 is approved, it
shall receive that number of Points as is equal to one thousand times
the number of Weighted Votes to which such Pool Member would have been
entitled under Clause 11.3.1(b) had:-
8.1 the provisions of Clause 11.3.3 been ignored; and
8.2 any applicable restrictions under Clause 11.4 been ignored,
as determined by the Executive Committee. Thereafter, such Pool
Member's Points shall be calculated in accordance with paragraph 2.
SCHEDULE 15
The Pool Funds Administrator's Contract
Contents
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
1.2 Incorporation by reference
1.3 Interpretation
1.4 Pool Funds Administrator's consent
2. APPOINTMENT
2.1 Continuation of Appointment
2.2 Term
2.3 Extension of term
2.4 Wholly-owned subsidiary
2.5 Independent Contractor
2.6 Restriction on business
3. EXPIRY OF TERM AND REMOVAL
3.1 Expiry of term
3.2 Removal by Executive Committee
3.3 Acknowledgement
3.4 Removal as a Party
4. APPOINTMENT OF A SUCCESSOR
4.1 Right to appoint
4.2 Appointment following removal
4.3 Tender process
5. TRANSFER OF RESPONSIBILITIES AND ASSETS
5.1 Transfer of responsibilities and assets
5.2 Co-operation
5.3 PFA Unwinding Costs
5.4 Without prejudice to rights
5.5 Reference to Arbitration
6. SPECIFIC DUTIES AND RESPONSIBILITIES
6.1 Tests of the Funds Transfer Hardware and Software
6.2 Insurance
6.3 Instructions
6.4 Changes
6.5 General
7. FUNDS TRANSFER SOFTWARE
7.1 Representations and warranties
7.2 Future Funds Transfer Software
7.3 Notification
7.4 Infringement
7.5 Restrictions
7.6 Indemnity
7.7 Maintenance
7.8 Escrow arrangements
8. ANNUAL FEE
8.1 General
8.2 Calculation of fee
8.3 Review of fee
9. PFA BUDGETS AND NOTICES OF ANNUAL FEE
9.1 PFA Budgets
9.2 Contents of PFA Budgets
9.3 Form of PFA Budgets
9.4 Notice of Annual Fee
10. STATEMENT OF COSTS AND FEES
10.1 Statement of Costs and Fees
10.2 Form of Statement of Costs and Fees
10.3 Accompanying Report
10.4 Tender Costs
10.5 Basis of preparation
10.6 Accounting Practices
10.7 Statement of Charges
11. QUALITY OF SERVICE REVIEW
11.1 Complaints
11.2 Report
11.3 Quality of Service Review
11.4 Consultants
11.5 Terms of engagement
11.6 Review Report
11.7 Implementation
11.8 Arbitration
11.9 Access
11.10 Confidentiality
11.11 Additional rights
12. AUDITORS' OPINION
13. PFA ACCOUNTING PERIOD
14. THE POOL FUNDS ADMINISTRATOR'S CHARGES
15. AMOUNT
15.1 Annual Charges
15.2 Recovery of Charges
15.3 Interest on non-payment
15.4 Payment of Charges
15.5 Amount of Charges
15.6 New and Former Pool Members
16. BANK CHARGES
17. ALLOCATION OF CHARGES
17.1 Total Sum Due
17.2 Payment of Total Sum Due
17.3 Allocation of Total Sum Due
17.4 Prima facie evidence
18. ADJUSTMENT
19. ADDITIONAL COMPENSATION
19.1 General
19.2 Compensation
19.3 Reservation
20. RECOVERY OF POOL ADMINISTRATION COSTS
20.1 Applicability
20.2 Approval
20.3 Payment
20.4 Recovery
20.5 Collection procedure
20.6 Proportionate Share
20.7 Bad Debts
Annex 1: PFA Budget for the 1992 PFA Accounting Period
Annex 2: Pro-forma Statement of Charges
Annex 3: Pro-forma Statement of Costs and Fees
Annex 4: Existing Funds Transfer Software
Annex 5: Escrow Arrangements
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Schedule, except where the context otherwise
requires:-
"Active Trading Pool Member" means a Pool Member which buys and/or
sells electricity pursuant to this Agreement on a regular basis or
which is an Externally Interconnected Party;
"Active Trading Pool Member Identities" means at any time the sum of:-
(i) one; and
(ii) the aggregate number of Pool Member identities which at that
time have been accorded to all Active Trading Pool Members
by the Settlement System Administrator for the purposes of
its operation of the Settlement System provided that (unless
EPFAL and the Executive Committee shall otherwise agree in
writing) for the purposes of this definition a Pool Member
shall have no more than one Pool Member identity in each of
the following categories applicable to it, namely:-
(a) category 1: a Pool Member which generates electricity;
(b) category 2: a Pool Member which generates electricity
and which is also a Consumer (as defined in the Pool
Rules);
(c) category 3: a Pool Member which supplies electricity
within the meaning of section 4 of the Act; and
(d) category 4: an Externally Interconnected Party;
and accordingly may not have more than four Pool Member
identities;
"Annual Fee" has the meaning given to it in Section 8;
"Bank Charges" has the meaning given to it in Section 16;
"Base Sum" has the meaning given to it in paragraph 8.2.1;
"Consultants" means an independent firm of chartered accountants or
management consultants of international repute selected by the
Executive Committee in consultation with EPFAL;
"EPFAL" means Energy Pool Funds Administration Limited (registered
number 2444187) whose registered office is situate at 185 Park Street,
London SE1 9DY;
"Funds Transfer Hardware" means all the computer equipment and
accessories whether existing or coming into existence in the future
which are used at any time by EPFAL in connection with the Funds
Transfer Business;
"Funds Transfer Software" means all the computer programs and codes
(both source code and object code) and all documents and materials
relating thereto or developed therefrom (including those documents and
materials on which the programs and codes are embodied and all user
documentation) and whether existing or coming into existence in the
future which are used at any time by EPFAL in connection with the Funds
Transfer Business, including (as at the date hereof) the software
listed in Annex 4;
"Notice of Annual Fee" means any notice of the Annual Fee prepared by
EPFAL pursuant to Section 9;
"PFA Accounting Period" means each successive period of 12 months
beginning on 1st April in each year or of such other length and/or
beginning on such other date as may be agreed in writing between EPFAL
and the Executive Committee;
"PFA Budget" means any budget prepared by EPFAL pursuant to Section 9
and, in the case of the PFA Accounting Period beginning in 1992, the
budget set out in Annex 1;
"PFA Commencement Date" means 1st April, 1992;
"PFA Handling Charge" means, in respect of any amount, five per cent.
of such amount;
"PFA Operating Costs" means, in respect of any PFA Accounting Period or
part thereof, the total expenditure properly incurred or accrued by
EPFAL in such PFA Accounting Period or (as the case may be) the
relevant part thereof in respect of:-
(i) the costs of effecting and maintaining insurance in
accordance with the requirements of
sub-section 6.2;
(ii) the costs of any tests of the Funds Transfer Hardware and
Funds Transfer Software under sub-section 6.1;
(iii) audit fees for the Funds Transfer Business and the costs and
expenses of the Pool Auditor under sub-section 6.1;
(iv) bank administration charges levied by the Pool Banker on
EPFAL in respect of the operation of the Pool Banker
Accounts (as defined in the Funds Transfer Agreement) (and
excluding, for the avoidance of doubt, Bank Charges and any
interest charges);
(v) the fees and expenses of the PFA Custodian (as defined in
Annex 5) incurred in respect of the updating of all
historical data referred to in paragraph 1.1.3 of Annex 5;
and
(vi) the costs of the maintenance arrangements referred to in
sub-section 7.7;
together with the total amount of EPFAL's bad debts recognised in such
PFA Accounting Period and arising from a Pool Member's failure to pay
its due proportion of EPFAL's charges determined in accordance with
Section 17; as conclusively certified in the event of any dispute by
the auditors for the time being of EPFAL, at the cost and expense of
EPFAL;
"Quality of Service Review" means a review of the manner and standard
of performance (both overall and on a day-to-day basis) by EPFAL of
those of its obligations under the Agreement (including this Schedule)
and the Agreed Procedures, the performance of which is called into
question by reason of the notification received by the Executive
Committee under sub-section 11.1;
"Retail Price Index" means the general index of retail prices published
by the Central Statistical Office each month in respect of all items
provided that if:-
(i) the index for any month in any year shall not have been
published on or before the last day of the third month after
such month; or
(ii) there is a material change in the basis of the index,
the Executive Committee and EPFAL shall agree a substitute index for
such month or (as the case may be) a substitute index (and, in default
of agreement, the matter shall be referred to arbitration pursuant to
Clause 83);
"Statement of Charges" means the statement of charges required to be
submitted by EPFAL pursuant to sub-section 10.7 substantially in the
form set out in Annex 2 (or in such other form as EPFAL and the
Executive Committee may from time to time agree in writing) showing the
total charges to be made by EPFAL on all Pool Members in accordance
with Sections 15 and 16;
"Statement of Costs and Fees" means any statement of costs and fees
required to be submitted by EPFAL pursuant to Section 10 which shall be
substantially in the form set out in Annex 3 or in such other form as
EPFAL and the Executive Committee may from time to time agree in
writing; and
"Total Sum Due" means, in respect of any PFA Accounting Period, the
total aggregate amount chargeable by EPFAL for that PFA Accounting
Period in accordance with Sections 15 and 16.
1.2 Incorporation by reference: In this Schedule, the following
definitions, namely:-
"Funds Transfer Agreement";
"Funds Transfer Business";
"Funds Transfer System";
"Letter of Credit";
"Pool Account"; and
"Pool Banker"
shall have the meanings respectively ascribed to them in Schedule 11.
1.3 Interpretation: In this Schedule, except where the context otherwise
requires, references to a particular Annex, Section, sub-section,
paragraph or sub-paragraph shall be a reference to that Annex to this
Schedule or, as the case may be, that Section, sub-section, paragraph
or sub-paragraph in this Schedule.
1.4 Pool Funds Administrator's consent: The Parties acknowledge and agree
that, notwithstanding any other provision of the Agreement, insofar as
directly affects in any material respect the rights, benefits, duties,
responsibilities, liabilities and/or obligations of the Pool Funds
Administrator, no amendment to or variation of any of the matters dealt
with in any of the following provisions of the Agreement shall take
effect:-
1.4.1without the prior written consent of EPFAL (but only for so long
as it is the Pool Funds Administrator):-
(a) Clauses 7.3, 9.5, 10.9, 19.4, 25, 66, 68, 69, 74 and 78.2 of the
Agreement; and
(b) this sub-section 1.4; and
1.4.2 without the prior written consent of EPFAL (but only for so
long as it is the Pool Funds Administrator), such consent
not to be unreasonably withheld or delayed:-
(a) Clauses 18.1.2, 70, 71.5 and 71.6 of the Agreement;
and
(b) Part XVI (other than Clause 63.1), Part XX (other than
Clauses 74 and 78.2) of and Schedule 11 to the
Agreement; and
(c) this Schedule.
2. APPOINTMENT
2.1 Continuation of Appointment: On 30th March, 1990 EPFAL was appointed by
each Pool Member and the Ancillary Services Provider and agreed to act
as the Pool Funds Administrator. This Schedule sets out the terms and
conditions on and subject to which EPFAL shall continue and agrees to
continue to act as the Pool Funds Administrator for the period referred
to in sub-section 2.2 (as such period may be extended or further
extended in accordance with the terms of this Schedule).
2.2 Term: EPFAL's appointment as the Pool Funds Administrator on and
subject to the terms and conditions set out in this Schedule shall be
deemed to have commenced on the PFA Commencement Date and, subject as
hereinafter provided in this Schedule, shall end on 31st March, 1995
(the period from the PFA Commencement Date to 31st March, 1995 being
the "Current Term").
2.3 Extension of term: EPFAL's appointment as the Pool Funds Administrator
may be extended beyond the expiry of the Current Term or (as the case
may be) any extended or further extended term either:-
2.3.1 if it successfully tenders pursuant to sub-section 4.3 for
continuation of its appointment and then on and subject to
the terms and conditions of the tender; or
2.3.2 if at any time prior to that expiry EPFAL and the Executive
Committee so agree in writing and then on and subject to
such terms and conditions as are so agreed.
2.4 Wholly-owned subsidiary: NGC shall procure that, so long as EPFAL acts
or is obliged to act as the Pool Funds Administrator, EPFAL at all
times remains a wholly-owned subsidiary of NGC.
2.5 Independent Contractor: In carrying out its duties and responsibilities
and otherwise in acting as the Pool Funds Administrator under the
Agreement, EPFAL shall act as an independent contractor and (unless
expressly authorised to the contrary) shall neither act nor hold itself
out nor be held out as acting as agent for any of the other Parties.
2.6 Restriction on business: For so long as EPFAL is the Pool Funds
Administrator EPFAL undertakes to each Party and the Executive
Committee that it shall not render to any other Party any billing
service or any other service of any nature whatsoever which is likely
to give rise to a conflict of interest in the performance by EPFAL of
its duties and responsibilities as the Pool Funds Administrator under
the Agreement. EPFAL further undertakes that if it carries on any
business other than that of Pool Funds Administrator it shall maintain
separate accounts and records in respect of any other business. EPFAL
acknowledges and agrees that this undertaking has been the subject of
discussion and negotiation and is fair and reasonable having regard to
the revision of the terms and conditions of EPFAL's appointment as the
Pool Funds Administrator with effect from the PFA Commencement Date.
3. EXPIRY OF TERM AND REMOVAL
3.1 Expiry of term: If on expiry of the Current Term (or, if EPFAL's term of
appointment has been extended or further extended in accordance with
paragraph 2.3.1 or 2.3.2, expiry of that extended or further extended term)
the term of EPFAL's appointment as the Pool Funds Administrator has not
been or will not be extended or (as the case may be) further extended in
accordance with paragraph 2.3.1 or 2.3.2, EPFAL shall, at the request of
the Executive Committee, continue to serve as the Pool Funds Administrator
for such additional period not exceeding one year from the date of expiry
of the Current Term) (or, if EPFAL's term of appointment has been extended
or further extended in accordance with paragraph 2.3.1 or 2.3.2, expiry of
that extended or further extended term) as the Executive Committee may
request in order to provide an opportunity for a successor to be appointed.
The Executive Committee shall make such a request as soon as possible after
becoming aware of the above circumstances but in any event no later than
three months (or such other period as EPFAL and the Executive Committee may
from time to time agree in writing) before the date of expiry of the
Current Term or (as the case may be) the extended or further extended term.
3.2 Removal by Executive Committee: The Executive Committee may at any time
remove EPFAL as the Pool Funds Administrator forthwith or after such period
of notice as it thinks fit if:-
3.2.1 EPFAL shall have committed a material breach of any of its
obligations as the Pool Funds Administrator under the
Agreement or the Agreed Procedures (other than a technical
breach of trust covered by the provisions contained in
Section 5.16 of Schedule 11) and, if such breach is capable
of remedy, shall have failed to remedy such breach within:-
(a) three Business Days (in the case of a failure to make
payment (other than where any Pool Member, the
Ancillary Services Provider or the Grid Operator is in
default which results in EPFAL's inability to make
such payment) or a failure to call a Letter of Credit
when required);
(b) 14 days (in the case of any breach of its undertaking in
sub-section 2.6); or
(c) 15 Business Days (in the case of any other default),
in any such case after it shall have received written notice
from the Executive Committee specifying the breach and
requiring it to be remedied; or
3.2.2 EPFAL:-
(i) is unable to pay its debts (within the meaning of
section 123(1) or (2) of the Insolvency Act 1986, but
subject as hereinafter provided in this paragraph
3.2.2) or if any voluntary agreement is proposed in
relation to it under section 1 of that Act or enters
into any scheme of arrangement (other than for the
purpose of reconstruction or amalgamation upon terms
and within such period as may previously have been
approved in writing by the Executive Committee); or
(ii) has a receiver (which expression shall include an
administrative receiver within the meaning of section
29 of the Insolvency Act 1986) of the whole or any
material part of its assets or undertaking appointed;
or
(iii) has an administration order under section 8 of the
Insolvency Act 1986 made in relation to it; or
(iv) passes any resolution for winding-up other than a
resolution previously approved in writing by the
Executive Committee; or
(v) becomes subject to an order by the High Court for
winding-up.
For the purposes of sub-paragraph (i) above section 123(1)
of the Insolvency Act 1986 shall have effect as if for
"(pound)750" there was substituted "(pound)150,000" and,
further, EPFAL shall not be deemed to be unable to pay its
debts for the purposes of sub-paragraph (i) above if any
such demand as is mentioned in the said section is being
contested in good faith by EPFAL with recourse to all
appropriate measures and procedures.
3.3 Acknowledgement: EPFAL acknowledges and agrees that, for the purposes
of paragraph 3.2.1, any breach by it of its undertaking in sub-section
2.6 shall be deemed to be a material breach of its obligations under
the Agreement.
3.4 Removal as a Party:
3.4.1 Upon the expiry or termination for whatever reason of EPFAL
as the Pool Funds Administrator each of the Parties shall
promptly at its own cost and expense execute and deliver all
agreements and other documentation and do all such other
acts, matters and things as may be necessary to effect
(without prejudice to paragraph 3.4.2) EPFAL's release as
the Pool Funds Administrator and (if appropriate) as a
Party.
3.4.2 The expiry or termination for whatever reason of EPFAL's
appointment as the Pool Funds Administrator shall be without
prejudice to any accrued rights and liabilities of the
Parties (including EPFAL as the Pool Funds Administrator)
under the Agreement.
4. APPOINTMENT OF A SUCCESSOR
4.1 Right to appoint: The Executive Committee shall have the right to
appoint any successor Pool Funds Administrator. In making any such
appointment the Executive Committee shall take account of the views (if
any) expressed by any Pool Member, the Ancillary Services Provider or
the Grid Operator. The appointment of a successor Pool Funds
Administrator shall take effect upon the removal or, as the case may
be, expiry of the term of appointment of EPFAL as the Pool Funds
Administrator.
4.2 Appointment following removal: If EPFAL is removed pursuant to
sub-section 3.2 the Executive Committee may appoint a successor without
being obliged to carry out or complete the process set out in
sub-section 4.3, such appointment to be on and subject to such terms
and conditions as the Executive Committee sees fit.
4.3 Tender process:
4.3.1The Executive Committee shall invite tenders for appointment as
successor Pool Funds Administrator:-
(a) not later than one year before the expiry of the
Current Term (or, if EPFAL's term of appointment has
been extended or further extended in accordance with
paragraph 2.3.2, not later than a date agreed between
EPFAL and the Executive Committee and falling before
the expiry of that extended or further extended term);
and
(b) if EPFAL's term of appointment has been extended or
further extended in accordance with paragraph 2.3.1 or
EPFAL has been requested to continue to serve as the
Pool Funds Administrator pursuant to sub-section 3.1,
not later than six months (or such other period as
EPFAL and the Executive Committee may agree in
writing) before the expiry of that extended or further
extended term.
4.3.2 The persons invited to tender and the terms and conditions of
that invitation, of the tender procedure and of the appointment
shall be determined by the Executive Committee provided that the
tender process shall be completed and the Executive Committee
shall have made its decision as to the successor (or shall have
decided not to appoint a successor from those persons who
submitted tenders) no later than the date falling three months
before the expiry of the Current Term or (as the case may be) the
extended or further extended term. The Executive Committee shall
not be bound to appoint the successor Pool Funds Administrator
from any of those persons who have submitted tenders. The
Executive Committee shall use its reasonable endeavours to ensure
that in the tender process the Executive Committee does not
discriminate unfairly between those eligible to tender or the
tenders received.
5. TRANSFER OF RESPONSIBILITIES AND ASSETS
5.1 Transfer of responsibilities and assets: Upon a successor Pool Funds
Administrator being appointed under Section 4 and accepting such
appointment, EPFAL shall, at the request of such successor:-
5.1.1 (a) at EPFAL's option:-
(i) fully and effectively assign, transfer and
deliver to such successor all Funds Transfer
Software (and copies thereof) beneficially
owned by EPFAL together with all rights,
title and interest therein or thereunder
vested in EPFAL; or
(ii) irrevocably license such successor to use all Funds
Transfer Software beneficially owned by EPFAL, which
licence shall be on terms enabling such successor to
grant sub-licences and permitting the benefit of such
licence to be assigned to any further successor Pool
Funds Administrator and shall include an undertaking by
EPFAL promptly to provide such access to source and
object codes and other documents and materials thereto
relating to the operation of the Funds Transfer System
as each such successor may reasonably require for the
purpose of maintaining and enhancing all Funds Transfer
Software; and
(b) use its best endeavours to assign or novate or procure
the assignment or novation of any licence or other
agreement to use any Funds Transfer Software which is
not beneficially owned by EPFAL or to such successor
and/or to maintain any Funds Transfer Software;
(c) deliver to the successor Pool Funds Administrator two
copies of the Funds Transfer Software and any
associated documentation at the request of the
Executive Committee for use by the successor Pool
Funds Administrator;
5.1.2 make over to such successor all such records, manuals, data
and other information which EPFAL is required to retain
pursuant to Clause 63.1.3 of the Agreement provided that
EPFAL shall be entitled to retain copies of such of those
manuals as have been prepared by EPFAL at its own cost and
expense (and not recharged to Pool Members pursuant to the
Agreement);
5.1.3 use all reasonable endeavours to novate or procure the
novation of the Funds Transfer Agreement and any banking
facility or financial accommodation made available to EPFAL
as Pool Funds Administrator by the Pool Banker and to
transfer all Letters of Credit to such successor and cause
to be transferred to such successor to hold in its capacity
as Pool Funds Administrator all balances standing to the
credit of any Pool Account;
5.1.4 provide such training, assistance and systems support as
such successor may reasonably require and for such period as
such successor may reasonably require (not exceeding three
months from the date of its removal or expiry of its term as
the Pool Funds Administrator) to enable such successor to
carry out its duties and responsibilities as successor Pool
Funds Administrator;
5.1.5 use all reasonable endeavours to transfer or otherwise make
available to such successor such of the freehold and
leasehold property as is owned or occupied by EPFAL and is
used by it in its capacity as the Pool Funds Administrator;
and
5.1.6 transfer or otherwise make available to such successor all
other assets, equipment (excluding computer hardware),
facilities, rights, know-how and transitional assistance
which it possesses and which is necessary or desirable for
such successor to have in order to enable such successor
efficiently to operate the Funds Transfer System in
accordance with the Agreement and the Agreed Procedures with
effect on and from the time of the removal of EPFAL or
expiry of EPFAL's term as the Pool Funds Administrator
(unless such removal is without notice in which case so soon
thereafter as is reasonably practicable),
and in any such case on such reasonable terms as may be agreed between
EPFAL and its successor as Pool Funds Administrator (but only, in the
case of such successor, after it has itself obtained the written
consent of the Executive Committee to such terms) within one month
after the commencement of negotiations (or such longer period as EPFAL,
such successor and the Executive Committee may agree in writing) and,
in default of agreement of terms, the dispute shall be referred to
arbitration in accordance with Clause 83.
5.2 Co-operation: EPFAL further agrees, in consideration of the payment of such
amount as may be agreed between EPFAL and its successor as Pool Funds
Administrator (but only, in the case of such successor, after it has itself
obtained the written consent of the Executive Committee to such terms)
within the period referred to in the final paragraph of sub-section 5.1
(and, in default of agreement of terms, the dispute shall be referred to
arbitration in accordance with Clause 83), to co-operate with any such
successor and the Executive Committee so that the transfer of duties,
responsibilities, assets and know-how to such successor is carried out
causing as little disruption to the operation of the Funds Transfer System
and as little inconvenience to the Parties as is practicable in all the
circumstances.
5.3 PFA Unwinding Costs: Without prejudice to Section 18, EPFAL's costs and
expenses of, or directly associated with, its removal or the expiry or
termination for whatever reason of its appointment as the Pool Funds
Administrator (including any redundancy or relocation costs or expenses
and any costs and expenses arising from the vacation or surrender of
any premises or disposal or its own re-deployment of any plant or
equipment used in the Funds Transfer Business) shall be borne
exclusively by EPFAL (and shall not be recharged to Pool Members).
5.4 Without prejudice to rights: Any payment made by all or any of the Pool
Members to EPFAL under this Section 5 shall be without prejudice to any
rights and remedies which the Pool Members (or any of them) may have
against EPFAL in its capacity as the Pool Funds Administrator arising
under the Agreement.
5.5 Reference to Arbitration: If any matter is referred to arbitration pursuant
to this Section 5, EPFAL shall not by virtue of the reference to such
arbitration be entitled to delay in the handing over of the Funds Transfer
Software and any records, manuals, data or other information referred to in
sub-section 5.1 and EPFAL shall not be entitled to withhold any training,
assistance and system support but shall continue to co-operate with the
Executive Committee and the successor Pool Funds Administrator including
carrying out its obligations set out in sub-sections 5.1 and 5.2 and
accordingly EPFAL shall not be entitled to withhold or delay the carrying
out of its obligations.
6. SPECIFIC DUTIES AND RESPONSIBILITIES
6.1 Tests of the Funds Transfer Hardware and Software:
6.1.1EPFAL shall, upon receipt of not less than ten working days'
notice from the Pool Auditor and subject to availability of
computer time, arrange for such tests of the Funds Transfer
Hardware and the Funds Transfer Software as are from time to time
reasonably required by the Pool Auditor (either on its own
initiative or on the instructions of the Executive Committee) for
the performance of its functions under Part IX of the Agreement.
EPFAL shall, if so required by the Pool Auditor, permit the Pool
Auditor to carry out such tests provided that the person or
persons allocated to carry out such tests by the Pool Auditor is
or are suitably qualified in the operation of computers and
computer systems to carry out such tests and, in any other case,
EPFAL shall carry out such tests.
6.1.2 EPFAL shall give the Pool Auditor reasonable access to the
Funds Transfer Hardware and the Funds Transfer Software for
the purpose of carrying out and monitoring any test under
paragraph 6.1.1.
6.1.3 The costs of any test under paragraph 6.1.1 shall be borne
by EPFAL and recovered by it as part of the PFA Operating
Costs in accordance with this Schedule.
6.2 Insurance:
6.2.1 Subject to the availability in the insurance market of such
insurances, EPFAL shall effect and maintain in full force
and effect with first class insurers the following
insurances:-
(a) professional indemnity insurance as Pool Funds
Administrator in an amount of not less than
(pound)60,000,000 any one claim and (pound)60,000,000
all claims in any one year (or such other amount as
may from time to time be reasonably required by the
Executive Committee after consultation with EPFAL);
and
(b) employee fidelity insurance in an amount of
(pound)60,000,000.
6.2.2 All premia and other sums of money payable in respect of all
insurances effected or to be effected pursuant to paragraph
6.2.1 shall be borne by EPFAL and recovered by it as part of
the PFA Operating Costs in accordance with this Schedule.
6.2.3 EPFAL shall use all reasonable endeavours to make and
collect claims promptly and shall apply all moneys received
by it in respect of the insurances referred to in paragraph
6.2.1 in or towards making good the loss and fully repairing
the damage or (as the case may be) satisfying the relevant
liability in respect of which such moneys were receivable or
reimbursing the cost of the same.
6.2.4 EPFAL shall promptly supply the Executive Committee upon
request from time to time with an insurance broker's
certificate in form and content reasonably satisfactory to
the Executive Committee confirming that cover has been
effected in respect of the insurances referred to in
paragraph 6.2.1 and giving reasonable details of the terms
and conditions of such insurances.
6.3 Instructions: Without prejudice to Section 19, EPFAL shall comply with
all instructions and directions issued by the Executive Committee to
EPFAL in its capacity as the Pool Funds Administrator unless such
compliance would cause EPFAL to be in breach of any of its other
obligations as the Pool Funds Administrator under the Agreement or the
Agreed Procedures.
6.4 Changes: EPFAL in its capacity as the Pool Funds Administrator shall
not make any change in its operation of the Funds Transfer System (or
any part or aspect thereof) which in its reasonable opinion is or may
(either alone or together with any other change(s)) be material without
the prior written consent of the Executive Committee. If EPFAL wishes
to make any such change, it shall promptly notify the Executive
Committee in writing giving reasonable details of the proposed change.
6.5 General: EPFAL shall have such other duties, responsibilities,
obligations and liabilities as are attributed to it in the Agreement
and the Agreed Procedures.
7. FUNDS TRANSFER SOFTWARE
7.1 Representations and warranties: EPFAL hereby represents and warrants to
each of the Pool Members and the Executive Committee that:-
7.1.1 the Funds Transfer Software referred to in Annex 4 (in this
Section, "Existing Funds Transfer Software") is all the
Funds Transfer Software used by EPFAL in connection with the
Funds Transfer Business as at 31st March, 1992;
7.1.2 it is the sole beneficial owner of the Existing Funds
Transfer Software referred to in Part A of Annex 4;
7.1.3 it is the licensee of the Existing Funds Transfer Software
referred to in Part B of Annex 4 and that the details of the
licences set out in Part B of Annex 4 are correct;
7.1.4 the Existing Funds Transfer Software is freely transferable
to any successor Pool Funds Administrator pursuant to
Section 5;
7.1.5 the use of the Existing Funds Transfer Software in
connection with the Funds Transfer Business does not
infringe the rights of any other person and EPFAL is not in
breach of any of the terms of the licences referred to in
Part B of Annex 4; and
7.1.6 it has not received any claim or notice challenging its
title to, or its right to use, the Existing Funds Transfer
Software.
7.2 Future Funds Transfer Software: As from the PFA Commencement Date EPFAL
shall use its best endeavours to ensure it shall be the sole beneficial
owner of all Funds Transfer Software used or to be used in the Funds
Transfer Business after 31st March, 1992 (in this Section, "Future
Funds
Transfer Software"). In the event that EPFAL is unable to ensure that
it will be sole beneficial owner of such Future
Funds Transfer Software it shall use its best endeavours to
ensure that it shall be the exclusive licensee thereof in
relation to the Funds Transfer Business or any similar or related
businesses on terms which enable it to grant sub-licences and the
benefit of such licence to be assigned to any successor Pool
Funds Administrator.
7.3 Notification: EPFAL undertakes to notify the Executive Committee
forthwith in writing in the event that:-
7.3.1 it is unable to ensure that it is the owner of, or licensee
on the terms set out in sub-section 7.2 under, Future Funds
Transfer Software; or
7.3.2 it receives any claim or notice of any alleged infringement
of the rights of any other person by its use of any Funds
Transfer Software or challenging its title to, or its right
to use, any Funds Transfer Software; or
7.3.3it is or becomes aware of any infringement by any third party of
its rights in any Funds Transfer Software,
and to consult with the Executive Committee as to any steps to be
taken in respect of any such situation.
7.4 Infringement: EPFAL hereby further represents and warrants to and
undertakes with each of the Pool Members and the Executive Committee
that the use of any Future Funds Transfer Software in connection with
the Funds Transfer Business will not infringe the rights of any other
person and that it shall not breach any of the terms of any licences
under Future Funds Transfer Software.
7.5 Restrictions: EPFAL shall not, without the prior written consent of the
Executive Committee (not be to unreasonably withheld or delayed), grant
to any person (other than a successor Pool Funds Administrator) any
right, title or interest to, in or under any Funds Transfer Software or
give to such person a copy of, or permit such person to use, Funds
Transfer Software or otherwise derive any benefit or profit therefrom
(other than by itself using such Funds Transfer Software for the
purpose of the Funds Transfer Business).
7.6 Indemnity: EPFAL hereby agrees fully and effectively to indemnify and
keep indemnified each of the Pool Members and the Executive Committee
from and against any and all loss, liability, damages, costs and
expenses which it may suffer or incur arising out of or resulting from
any breach by the Pool Funds Administrator of any of the terms,
representations, warranties and undertakings contained in this Section
7 and Annex 5.
7.7 Maintenance: EPFAL shall ensure that at all times it has in full force
and effect proper arrangements for the maintenance of (and the prompt
rectification of defects in) the Funds Transfer Hardware and the Funds
Transfer Software and, upon the reasonable request of the Executive
Committee, shall supply evidence reasonably satisfactory to the
Executive Committee of the existence and nature of such arrangements.
The costs of all such maintenance arrangements shall be borne by EPFAL
and recovered by it as part of the PFA Operating Costs in accordance
with this Schedule.
7.8 Escrow arrangements: EPFAL shall comply with the provisions of Annex 5
which relate to escrow arrangements for the Funds Transfer Software and
gives the warranties therein stated.
8. ANNUAL FEE
8.1 General: In consideration of the carrying out by EPFAL of its duties
and responsibilities as the Pool Funds Administrator as set out in the
Agreement and the Agreed Procedures (other than in respect of those
matters for which EPFAL is or will be compensated through the recovery
of the PFA Operating Costs in accordance with this Schedule) EPFAL
shall be paid an annual fee as the Pool Funds Administrator (the
"Annual Fee") calculated in accordance with the following provisions of
this Section 8.
8.2 Calculation of fee:
8.2.1 In respect of the PFA Accounting Period beginning on the PFA
Commencement Date the Annual Fee for that PFA Accounting
Period shall be (pound)1,250,000 (the "Base Sum").
8.2.2 In respect of each PFA Accounting Period beginning on an
anniversary of the PFA Commencement Date the Annual Fee
(expressed in pounds sterling) for that PFA Accounting
Period shall be calculated in accordance with the following
formulae:-
(a) ABS = Base Sum * (1+(RPIp/100))
where RPIp = the percentage change
(whether of a positive or negative
value) in the Retail Price Index
between that published in, or (as
the case may be) the substitute
index for, the third month before
the PFA Commencement Date and that
published in, or the substitute
index for, the third month before
the anniversary from which the
adjusted Annual Fee is to take
effect;
(b) ATPM = Base Sum * (I/100)
where I = the value set out in column 2
below opposite the number of Active
Trading Pool Member Identities set
out in column 1 below as at the
beginning of the third month before
the anniversary from which the
adjusted Annual Fee is to take
effect:-
Column 1 Column 2
-------- --------
Number of Active Trading Value
Pool Member Identities
0 to 60 0
61 to 70 5
71 to 80 10
81 to 90 20
91 to 100 25
101 to 110 30
111 to 120 35
121 to 130 45
131 to 140 50
141 to 150 55
(c) Annual Fee = ABS + ATPM.
8.2.3If during any PFA Accounting Period beginning on an anniversary
of the PFA Commencement Date the number of Active Trading Pool
Member Identities shall change such that, were the Annual Fee for
that PFA Accounting Period to be recalculated, it would yield a
different result from that originally calculated for that PFA
Accounting Period (or, as the case may be, from that most
recently recalculated for that PFA Accounting Period pursuant to
this paragraph 8.2.3) EPFAL shall promptly recalculate the Annual
Fee and notify the Executive Committee in writing of the amount
thereof. Such notification shall be accompanied by a statement
showing in reasonable detail the calculation of such amount.
Subject to paragraph 8.3.2(b), such recalculated Annual Fee shall
take effect for the period from the date falling one month after
the receipt by the Executive Committee of such notification until
the end of the then current PFA Accounting Period (or until
further recalculated under this paragraph 8.2.3).
8.3 Review of fee:
8.3.1 If at any time the total number of Active Trading Pool
Member Identities shall exceed 150 EPFAL may request the
Executive Committee to review the basis of calculation
and/or the amount of the Annual Fee. Upon receipt of such
request the Executive Committee and EPFAL shall negotiate in
good faith for a period not exceeding three months (or such
longer period as EPFAL and the Executive Committee may agree
in writing) with a view to agreeing a revised basis of
calculation and/or amount of the Annual Fee.
8.3.2 (a) If EPFAL and the Executive Committee shall agree a
revised basis of calculation and/or amount of the
Annual Fee, such revisions shall take effect in
accordance with the terms of that agreement.
(b) If at the end of the negotiation period referred to in paragraph
8.3.1 EPFAL and the Executive Committee shall not have agreed a
revised basis of calculation and/or amount of the Annual Fee or
if the Executive Committee shall dispute any calculation of the
Annual Fee made by EPFAL and notified to the Executive Committee
pursuant to sub-section 9.4 or paragraph 8.2.3, EPFAL or the
Executive Committee may refer the dispute to arbitration pursuant
to Clause 83. Pending the award of the arbitrator(s) the Annual
Fee current as at the date of EPFAL's calculation or
recalculation shall continue in force.
9. PFA BUDGETS AND NOTICES OF ANNUAL FEE
9.1 PFA Budgets: Not earlier than three nor later than two months prior to
the first day of each PFA Accounting Period EPFAL shall prepare and
submit to the Executive Committee a PFA Budget for such PFA Accounting
Period. Such PFA Budget shall be indicative only but shall be prepared
on a best estimates basis. The PFA Budget for the PFA Accounting Period
beginning in 1992 is set out in Annex 1.
9.2 Contents of PFA Budgets: Each PFA Budget (other than the PFA Budget for
the PFA Accounting Period beginning in 1992) shall compare each item or
category of budgeted expenditure shown therein with the forecast
expenditure in respect of such item or category for the remainder of
the then current PFA Accounting Period and report any salient
differences between any such forecast expenditure and the budgeted
expenditure in respect of each such item or category in the immediately
preceding PFA Budget.
9.3 Form of PFA Budgets: Each PFA Budget shall be substantially in the form
of that set out in Annex 1 (or in such other form as EPFAL and the
Executive Committee may from time to time agree in writing).
9.4 Notice of Annual Fee: Each PFA Budget (other than the PFA Budget for
the PFA Accounting Period beginning in 1992) shall be accompanied by a
Notice of Annual Fee prepared by EPFAL stating the Annual Fee for the
PFA Accounting Period to which such PFA Budget relates and setting out
in reasonable detail the calculation of the Annual Fee. Subject to
paragraphs 8.2.3 and 8.3.2, the Annual Fee so stated shall take effect
for such PFA Accounting Period.
10. STATEMENT OF COSTS AND FEES
10.1 Statement of Costs and Fees: No later than one month following
the date in any PFA Accounting Period of the publication of the
audited accounts for the Funds Transfer Business for the previous
PFA Accounting Period, EPFAL shall prepare and submit to the
Executive Committee and all Pool Members a Statement of Costs and
Fees for such previous PFA Accounting Period. The audited
accounts of EPFAL, the instruction letter from EPFAL to its
auditors giving instructions for the auditing of those accounts
and the auditors' management letter (to the extent that it
relates to the economy, efficiency, effectiveness and quality of
service of EPFAL in carrying out its duties and responsibilities
as the Pool Funds Administrator) shall accompany each Statement
of Costs and Fees for each entire PFA Accounting Period.
10.2 Form of Statement of Costs and Fees: The Statement of Costs and
Fees for any PFA Accounting Period:-
10.2.1 in relation to the PFA Operating Costs, shall attribute
actual and accrued expenditure for such period against,
inter alia, each of the categories and sub-categories set
out in the corresponding PFA Budget for such PFA Accounting
Period; and
10.2.2 in relation to the Annual Fee, shall state the Annual Fee
and any revisions thereto for such PFA Accounting Period and
shall set out in reasonable detail the calculation thereof.
10.3 Accompanying Report: Each PFA Budget and Statement of Costs and Fees
for an entire PFA Accounting Period submitted to the Executive
Committee and, in the case of the Statement of Costs and Fees, Pool
Members pursuant to sub-section 9.1 or 10.1 shall be supported by a
written report of EPFAL commenting in reasonable detail upon the
matters comprised in the categories of expenditure included in such PFA
Budget or Statement of Costs and Fees.
10.4 Tender Costs:
10.4.1 If, during any PFA Accounting Period, the Pool Funds
Administrator reasonably believes that any of the category of
services within the definition of PFA Operating Costs are likely
to exceed the amount of that expenditure for that category or
sub-category or other items of cost provided for in the PFA
Budget by more than 5 per cent., the Pool Funds Administrator
shall notify the Executive Committee accordingly and explain the
reasons for the increase. The Executive Committee may require the
Pool Funds Administrator to invite tenders for any of the
categories or sub-categories or items of cost which are so
exceeded, in accordance with sub-section 10.4.3.
10.4.2 If the Executive Committee considers that the amount
budgeted for any category or sub-category or other item of
cost in the PFA Budget is unreasonable then the Executive
Committee may require the Pool Funds Administrator to invite
tenders for any of the categories or sub-categories or other
items of cost in the PFA Budget in accordance with
sub-section 10.4.3.
10.4.3 Within seven Business Days after receipt of a notice given
pursuant to paragraph 10.4.1 the Executive Committee shall notify
the Pool Funds Administrator in writing whether it wishes the
Pool Funds Administrator to seek a further tender for the service
in question. If the Executive Committee so notifies the Pool
Funds Administrator that it requires a further tender to be
sought, the Pool Funds Administrator shall obtain a further
tender and shall give the Executive Committee reasonable details
of that further tender and at the same time shall notify the
Executive Committee of which tender it has chosen to accept
together (if applicable) with reasons as to why it has not chosen
the lowest price tender.
10.4.4 If the Executive Committee fails to notify the Pool Funds
Administrator within the time period referred to in
paragraph 10.4.2 or notifies the Pool Funds Administrator
that it does not wish it to seek a further tender, the Pool
Funds Administrator may accept the original tender.
10.5 Basis of preparation: All Statements of Costs and Fees other than a
Statement of Costs and Fees in respect of an entire PFA Accounting
Period shall be unaudited but prepared on a best estimates basis. The
Statement of Costs and Fees in respect of an entire PFA Accounting
Period shall be audited by EPFAL's auditors.
10.6 Accounting Practices: Each PFA Budget and Statement of Costs and
Fees shall be prepared on the basis of the accounting principles
and practices used to draw up the most recent audited accounts of
EPFAL and consistently applied. If any Statement of Costs and
Fees for an entire PFA Accounting Period is not prepared on such
basis, EPFAL shall prepare and submit to the Executive Committee
and all Pool Members a pro-forma set of its audited accounts for
such entire PFA Accounting Period which is prepared on the basis
of the accounting principles and practices used to prepare the
relevant Statement of Costs and Fees. Any changes in the
accounting principles and practices or their method of
application used to prepare EPFAL's audited accounts shall be
noted in the next following PFA Budget or Statement of Costs and
Fees, as the case may be.
10.7 Statement of Charges: A Statement of Charges shall accompany each Statement
of Costs and Fees.
11. QUALITY OF SERVICE REVIEW
11.1 Complaints: If the Executive Committee shall receive from any Pool
Member written notification of a breach or an alleged breach of the
Agreement or an Agreed Procedure involving EPFAL in its capacity as the
Pool Funds Administrator it shall promptly notify EPFAL of receipt and
shall send a copy of such notification to EPFAL.
11.2 Report: Within one month after receipt from the Executive Committee of
any such notification as is referred to in sub-section 11.1 EPFAL shall
prepare and submit to the Executive Committee a written report
explaining in reasonable detail the circumstances which gave rise to,
and the causes of, the breach (or, if it asserts that there has not
been a breach, the reasons in support of that assertion), any remedial
action taken by it and the consequences of such action.
11.3 Quality of Service Review: Promptly after receipt of EPFAL's
written report referred to in sub-section 11.2 (or, if EPFAL
shall fail to submit a report within the period referred to in
that sub-section, promptly after expiry of that period) the
Executive Committee shall determine whether it wishes to
commission a Quality of Service Review. In making such
determination the Executive Committee shall take into account the
nature and seriousness of the notified breach (or alleged breach)
and the said written report (if any). The Executive Committee
shall notify EPFAL in writing of any such determination.
11.4 Consultants: If the Executive Committee shall determine to commission a
Quality of Service Review, it shall instruct the Consultants to conduct
such review and to report in writing (a "Review Report") to the
Executive Committee and EPFAL.
11.5 Terms of engagement: The terms of engagement of the Consultants
(including the objectives and scope of the work to be performed and the
form of report to be issued) in respect of any Quality of Service
Review shall (subject to sub-section 11.10) be determined by the
Executive Committee in consultation with EPFAL.
11.6 Review Report: EPFAL shall be given the opportunity to examine
and comment on any factual details contained in any Review Report
before it is submitted in final form. Such final form shall, if
the Consultants commissioned to carry out the Quality of Service
Review shall think fit, take into consideration the comments of
EPFAL on any factual details contained in the Review Report and
include an indication of the response and proposed action of
EPFAL. A copy of the final form of the Review Report shall be
sent to EPFAL and may be distributed by the Executive Committee
to Pool Members and the Director.
11.7 Implementation: Upon receipt of a Review Report, EPFAL shall (if so
required by and in consultation with the Executive Committee) give
effect to such recommendations, if any, as are set out in such report
as soon as is reasonably practicable following the date of receipt by
EPFAL of such report.
11.8 Arbitration: If EPFAL shall in good faith consider the recommendations
in any Review Report to be impractical or inappropriate, the same shall
be referred for resolution to arbitration in accordance with Clause 83.
11.9 Access: For the purposes of any Review Report, EPFAL shall permit
the Consultants access to the Funds Transfer Hardware, the Funds
Transfer Software and all data used by EPFAL in the operation of
the Funds Transfer System and to such of its company books,
accounts and vouchers as relate to any of the items or categories
of expenditure which make up the PFA Operating Costs and as are
necessary for the performance of the Quality of Service Review.
The Consultants shall also be entitled to require from EPFAL's
officers, employees or agents such information and explanations
as are necessary for the performance of the Quality of Service
Review (but, for the avoidance of doubt, the Consultants shall
not have access to any data used, information held or records
kept in relation to any Pool Member without such Pool Member's
prior written consent).
11.10 Confidentiality: The terms of engagement of the Consultants
commissioned to carry out the Quality of Service Review shall include a
written obligation of the Consultants and signed on their behalf in
favour of EPFAL to keep confidential information made available by
EPFAL to the Consultants or to which the Consultants have access for
the purposes of the Quality of Service Review save that the Consultants
shall be entitled to disclose any such information:-
11.10.1 in the Review Report to the extent that the Consultants
reasonably consider appropriate (after consultation with
EPFAL) for the purposes of that report; or
11.10.2 with the prior written consent of EPFAL; or
11.10.3 in compliance with any requirement of law or pursuant to the
arbitration rules of the Electricity Arbitration Association
or pursuant to any judicial or other arbitral process or
tribunal having jurisdiction.
11.11 Additional rights: The provisions of this Section 11 are in addition to
(and not in substitution for) and shall not prejudice any other rights
which the Executive Committee or any Pool Member may have in respect of
any such breach as is referred to in sub-section 11.1.
12. AUDITORS' OPINION
The Statement of Costs and Fees in respect of an entire PFA Accounting
Period to be sent to the Executive Committee and all Pool Members
pursuant to sub-section 10.1 shall be accompanied by a report from
EPFAL's auditors considering whether in such auditors' opinion:-
(a) the Statement of Costs and Fees is in agreement with EPFAL's
underlying books and records;
(b) PFA Operating Costs have been properly extracted from
EPFAL's audited financial statements; and
(c) the calculations in respect of the Annual Fee are in
accordance with the formulae set out in sub-section 8.2, and
are correct and in agreement with EPFAL's underlying books
and records.
13. PFA ACCOUNTING PERIOD
Each PFA Accounting Period shall be for a period of 12 months unless
otherwise agreed in writing by EPFAL and the Executive Committee. If
EPFAL wishes to change its accounting reference date it shall give due
notice thereof to the Executive Committee which shall agree to enter
into an amending agreement to the Agreement in order to give effect to
the same at EPFAL's cost and expense.
14. THE POOL FUNDS ADMINISTRATOR'S CHARGES
EPFAL shall be entitled to recover from all Pool Members the charges
set out in Sections 15 and 16 in respect of its operation of the Funds
Transfer Business but, subject to Section 19, shall not be entitled to
recover any other charges.
15. AMOUNT
15.1 Annual Charges: In respect of each PFA Accounting Period, EPFAL
shall be entitled to recover from Pool Members annual charges
equal to the aggregate of the following amounts:-
15.1.1 PFA Operating Costs for the relevant PFA Accounting Period
(as identified by the Statement of Costs and Fees for such
period submitted pursuant to Section 10);
15.1.2 the PFA Handling Charge, calculated on the total amount of the
PFA Operating Costs;
15.1.3 the Annual Fee for such PFA Accounting Period; and
15.1.4 the Bank Charges.
15.2 Recovery of Charges:
15.2.1 The due proportion (determined in accordance with
sub-section 15.4) of EPFAL's annual charges referred to in
sub-section 15.1 payable by each Pool Member for each PFA
Accounting Period shall be recovered by monthly payments in
advance from each Pool Member or, where EPFAL and the Pool
Member otherwise agree, semi-annually in advance (calculated
on a best estimates and reasonable basis to be one twelfth
or, as the case may be, one half of the annual charges
payable by such Pool Member by reference to the most recent
PFA Budget).
15.2.2 EPFAL shall advise each Pool Member of such amount by
invoice despatched to each Pool Member approximately 15 days
prior to the first day of each month or, as the case may be,
other period. Such invoice shall be paid no later than the
first day of such month or such other period. Each Pool
Member shall pay the amount advised in the relevant invoice
within 15 days after the invoice date.
15.2.3 Each Pool Member shall pay all amounts due hereunder in
sterling in cleared funds in full without set off or
counterclaim, withholding or deduction of any kind
whatsoever but without prejudice to any other remedy. All
charges are exclusive of United Kingdom Value Added Tax
which shall be added to such charges, if applicable.
15.2.4 In the event of any dispute regarding charges in any month
or period, no Pool Member may withhold payment of any
invoiced amount but may refer such dispute to arbitration in
accordance with Clause 83.
15.3 Interest on non-payment: If any amount due to EPFAL in its capacity as
the Pool Funds Administrator is not received on the due date the Pool
Member required to pay such amount shall pay interest to EPFAL on such
amount from and including the date of default to the date of actual
payment (as well after as before judgment) at the rate which is 4 per
cent. per annum above the Base Rate from time to time of National
Westminster Bank PLC during each period of default.
15.4 Payment of Charges: Each Pool Member shall pay its due proportion of
EPFAL's charges for each PFA Accounting Period determined in accordance
with Section 17.
15.5 Amount of Charges: The amount of each such payment shall be
estimated initially by reference to the PFA Budget. EPFAL shall
adjust the amount of each such payment by reference to the most
recent Statement of Costs and Fees and so as to take into account
PFA Operating Costs, the PFA Handling Charge, the Annual Fee and
the Bank Charges during the previous PFA Accounting Period and
anticipated costs in respect of the same during the current PFA
Accounting Period and shall recover from or, as appropriate,
credit to each Pool Member its due proportion of the difference
between actual and anticipated PFA Operating Costs, the PFA
Handling Charge, the Annual Fee and the Bank Charges and payments
received in respect of such costs, fees and charges in each case
for the previous and the current PFA Accounting Period. Such
recovery or credit shall take place by reference to an adjustment
to each Pool Member's charges for the current PFA Accounting
Period.
15.6 New and Former Pool Members: Any Pool Member which is a Pool
Member for part only of any PFA Accounting Period shall pay
charges on an interim basis of such amount as the Executive
Committee estimates to be reasonable for such PFA Accounting
Period on the basis of the allocation of charges set out in
Section 17. Adjustments to charges on all Pool Members as a
result of existing Pool Members leaving or new Pool Members
joining will be made following, and shall be set out in, the
Statement of Charges submitted for the relevant PFA Accounting
Period pursuant to sub-section 10.7 whereupon the Pool Members
and/or former Pool Members shall be required to pay such
additional amount or be entitled to such reimbursement as may be
determined in accordance with the Agreement by an adjustment to
charges in the then current PFA Accounting Period.
16. BANK CHARGES
Bank Charges: EPFAL in its capacity as the Pool Funds Administrator
shall collect from Pool Members the amounts they are obliged to pay by
way of bank transaction charges towards the costs of the Pool Banker
and all Settlement Banks ("Bank Charges") and shall account for the
same to the Pool Banker and such Settlement Banks.
17. ALLOCATION OF CHARGES
17.1 Total Sum Due: In respect of each PFA Accounting Period, the Total Sum
Due shall be allocated amongst Pool Members in accordance with the
following provisions of this Section 17.
17.2 Payment of Total Sum Due: Each Pool Member shall be obliged to pay the
amount allocated to it in accordance with this sub-section. The total
aggregate amount allocated to all Pool Members in respect of any PFA
Accounting Period shall equal the Total Sum Due in respect of such PFA
Accounting Period.
17.3 Allocation of Total Sum Due: The Total Sum Due in respect of each
PFA Accounting Period shall be allocated amongst Pool Members in
the following manner:-
17.3.1 first, in order to recover the discrete costs referable to
each Pool Member during any PFA Accounting Period, the costs
incurred by EPFAL in its capacity as the Pool Funds
Administrator in complying with a request of such Pool
Member made pursuant to Clause 63.1.7 or sub-section 6.3 of
Schedule 11 which are directly referable to such Pool Member
shall, as far as possible, be allocated to such Pool Member;
and
17.3.2 secondly, 100 per cent. of the balance of the Total Sum Due
during any PFA Accounting Period not recovered pursuant to
paragraph 17.3.1 shall be allocated amongst all Pool Members
during such PFA Accounting Period according to their respective
Contributory Shares or such PFA Accounting Period. For this
purpose, each Pool Member's due proportion of the charges shall
be assessed first by reference to the then latest Contributory
Shares of all Pool Members calculated by the Executive Committee
for the period and each part thereof to which such charges relate
(or, if and to the extent that the charges relate to a period for
which no such calculation has yet been made, by reference to the
then most recently calculated current Contributory Shares of all
Pool Members) and shall thereafter be readjusted from time to
time for each day within the relevant period following changes to
the Contributory Shares of Pool Members for all or any part of
such period or (as the case may be) following the calculation of
the Contributory Shares for such period.
17.4 Prima facie evidence: EPFAL's determination of the allocation of all
costs during any PFA Accounting Period shall, in the absence of
manifest error, be prima facie evidence thereof.
18. ADJUSTMENT
If the Executive Committee requests EPFAL to continue to serve as the
Pool Funds Administrator pursuant to sub-section 3.1 to allow a
successor to be appointed, EPFAL and the Executive Committee shall
negotiate in good faith for a period not exceeding six weeks (or such
longer period as EPFAL and the Executive Committee may agree in
writing) with a view to agreeing a revision in the amount of the Base
Sum to be used in the calculation of the Annual Fee for the duration of
the additional period referred to in sub-section 3.1. If EPFAL and the
Executive Committee shall agree to revise the amount of the Base Sum,
such revision (and any consequential revision in the Annual Fee) shall
take effect in accordance with the terms of that agreement. If no
agreement is reached within the said negotiation period the Executive
Committee or EPFAL may refer the dispute to arbitration pursuant to
Clause 83. Pending any such agreement being reached or any such dispute
being resolved by arbitration, EPFAL shall continue to serve as the
Pool Funds Administrator for the additional period referred to in
sub-section 3.1.
19. ADDITIONAL COMPENSATION
19.1 General: A direction or instruction of the Executive Committee to EPFAL
in its capacity as the Pool Funds Administrator shall not materially
increase the duties, responsibilities or liabilities of EPFAL as the
Pool Funds Administrator beyond those detailed in the Agreement as at
the PFA Commencement Date and as detailed in the Agreed Procedures
without proper compensation.
19.2 Compensation: If the Executive Committee gives a direction or
instruction to EPFAL in its capacity as the Pool Funds Administrator
which materially increases the duties, responsibilities or liabilities
of EPFAL as the Pool Funds Administrator beyond those detailed in the
Agreement as at the PFA Commencement Date and as detailed in the Agreed
Procedures, then (subject to sub-section 19.3):-
19.2.1 EPFAL shall carry out that direction or instruction unless
it has reasonable grounds for refusing so to do in which
event it shall forthwith notify the Executive Committee in
writing of its refusal and its reasons therefor (and, for
this purpose, an increase in the duties, responsibilities or
liabilities of EPFAL in its capacity as the Pool Funds
Administrator shall not of itself constitute reasonable
grounds);
19.2.2 EPFAL and the Executive Committee shall negotiate in good
faith for a period not exceeding one month (or such longer
period as EPFAL and the Executive Committee may agree in
writing) with a view to agreeing an appropriate increase in
the Base Sum to reflect such increase in EPFAL's duties,
responsibilities and liabilities as the Pool Funds
Administrator;
19.2.3 if EPFAL and the Executive Committee shall agree an increase
in the Base Sum, such increase shall take effect in
accordance with the terms of that agreement; and
19.2.4 if there shall be any dispute as to whether that direction
or instruction does or did materially increase the duties,
responsibilities or liabilities of EPFAL as the Pool Funds
Administrator or whether EPFAL has reasonable grounds for
refusing to carry out that direction or instruction or if no
agreement is reached under paragraph 19.2.2, EPFAL or the
Executive Committee may refer the dispute to arbitration in
accordance with Clause 83.
19.3 Reservation: The performance by EPFAL of any direction or
instruction of the Executive Committee shall not prevent EPFAL
from later claiming that such direction or instruction materially
increased its duties, responsibilities or liabilities as the Pool
Funds Administrator provided always that EPFAL shall not be
entitled so to claim unless it gave written notice to the
Executive Committee promptly (and in any event within seven days)
after first becoming aware that such direction or instruction
materially increased or was likely materially to increase such
duties, responsibilities or liabilities, such notice to contain
detailed reasons in support of why there has been or is likely to
be such an increase.
20. RECOVERY OF POOL ADMINISTRATION COSTS
20.1 Applicability: The provisions of this Section 20 shall apply to:-
20.1.1 the costs and expenses (within the extended meaning of that
expression in Clause 23.5 of the Agreement) of the Executive
Committee, its sub-committees and sub-groups and the
personnel referred to in Clause 17.2.1 together with the
liabilities (if any) associated with the termination of any
lease of any business accommodation required by the
Executive Committee, the Chief Executive, the
sub-committees, the sub-groups of such personnel;
20.1.2 the costs and expenses of Committee Members and members of
the sub-committees and sub-groups of the Executive
Committee;
20.1.3 the costs and expenses of the Pool Chairman;
20.1.4 the remuneration, costs and expenses of the personnel referred
to in Clause 17.2.1 of the Agreement;
20.1.5 the remuneration, costs and expenses of the Secretary;
20.1.6 the costs and expenses of the Pool Auditor;
20.1.7 the overhead costs of the Electricity Arbitration Association;
20.1.8 all such other costs, fees, expenses, liabilities, losses
and other amounts which are required by the Agreement (or
any other agreement, document or arrangement prepared,
executed or entered into pursuant to the Agreement and for
this purpose approved by the Executive Committee) to be
dealt with "in accordance with Section 20 of Schedule 15" or
"in accordance with the PFA Accounting Procedure"; and
20.1.9 any bad debts which are to be treated as Pool Administration
Costs pursuant to sub-section 20.7,
(together "Pool Administration Costs").
20.2 Approval: The Executive Committee (or its delegate) shall approve all
Pool Administration Costs in advance of submitting the same to EPFAL
for payment.
20.3 Payment: Upon receipt of an invoice or other statement relating to Pool
Administration Costs which has been approved by or on behalf of the
Executive Committee in accordance with sub-section 20.2, EPFAL shall
pay the amount stated in such invoice or other statement (together with
Value Added Tax thereon, if applicable) to such person or persons as
the Executive Committee (or its delegate) shall direct.
20.4 Recovery:
20.4.1 EPFAL shall collect from Pool Members the amounts which they
are obliged to pay towards the Pool Administration Costs and
Pool Members shall be obliged to pay in accordance with
sub-section 20.6 their respective proportionate share of the
Pool Administration Costs (together with Value Added Tax
thereon, if applicable) against receipt of an invoice or
other statement therefor issued by EPFAL and otherwise in
accordance with paragraph 20.5.1;
20.4.2 EPFAL shall collect from the Grid Operator, and the Grid
Operator shall be obliged to pay against receipt of an
invoice or other statement therefor issued by EPFAL and
otherwise in accordance with paragraph 20.5.2, 10 per cent.
of the annual overhead costs of the Electricity Arbitration
Association (together with Value Added Tax thereon, if
applicable).
20.5 Collection procedure:
20.5.1 EPFAL shall arrange for collection from Pool Members of
their respective proportionate share of the Pool
Administration Costs in such manner as may be agreed by
EPFAL with the Executive Committee from time to time (which
may include collection in advance) and Pool Members shall
comply with such collection procedures and, in particular,
shall make payment within the time period prescribed by such
procedures. The provisions of paragraphs 15.2.3, 15.2.4 and
sub-section 15.3 shall in any event apply mutatis mutandis
in respect of all payments required to be made by Pool
Members pursuant to this Section 20.
20.5.2 The Grid Operator shall make payment of the amount referred
to in paragraph 20.4.2 within 15 days after receipt of the
invoice or other statement therefor.
20.6 Proportionate Share: Pool Members shall contribute towards the Pool
Administration Costs referable to a Quarter in the proportions which
their respective Contributory Shares bear to each other during such
Quarter.
20.7 Bad Debts: If in any PFA Accounting Period the Executive Committee
recognises bad debts arising from a Pool Member's failure to pay its
due proportion of Pool Administration Costs, the aggregate amount of
those bad debts shall be carried forward to the immediately succeeding
PFA Accounting Period and shall form part of the Pool Administration
Costs for that PFA Accounting Period (spread evenly so far as
practicable over the four Quarters thereof).
ANNEX 1
PFA Budget for the 1992 PFA Accounting Period
Category/Item Budgeted Cost
(pound)000
Insurance costs 200
Funds Transfer Hardware and Funds Transfer Software testing and
maintenance costs 75
Audit fees 75
Bank administration charges 100
Bad debt allowance 0
=============
Total Sum Due 450
=============
ANNEX 2
Pro-forma Statement of Charges
- -------- -------------------- ---------------------------------- ----------
Name Contributory Share Period to which charges relate Amount
- -------- -------------------- ---------------------------------- ----------
ANNEX 3
Pro-forma Statement of Costs and Fees
(A)
PFA Operating Costs
Budgeted Cost for Actual Out-Turn
previous PFA for previous PFA
Accounting Period Accounting Period
(pound)000 (pound)000
Insurance costs
Funds Transfer Hardware
and Funds
Transfer Software
testing and maintenance
costs Audit fees Bank
administration charges Bad
debt allowance
Total Sum Due
(B)
Annual Fee
Annual Fee (initial): the Annual Fee for the [19 ] PFA Accounting Period was(pound)[ ].
Annual Fee (revisions): the Annual Fee for the [19 ] PFA Accounting Period was revised as from
[ ] to(pound)[ ] [and as from [ ] to
(pound)[ ]].
Calculation of Annual Fee (initial and revisions):
ANNEX 4
Existing Funds Transfer Software
Part A
Beneficially Owned
Pool Funds Transfer System (PFTS) PHASE 1
System Administration - User Guide (2/5/90)
Clerical Procedures (3/5/90)
Self Study Training Module (4/7/90)
Billing Sub-Project - Test Specification v.1.0 (29/3/90), v.1.1 (3/4/90) Test
Plan - Issue 1.1 (3/4/90) System Testing Log (4/4/90) Quality Assurance Plan
(16/5/90) Test Data (2/4/90) Test Schedules (3/4/90) Implementation Paper
Security Controls (22/3/90)
Pool Funds Transfer System (PFTS) PHASE 1.1
Test Plan Issue 1.0 (18/6/90)
Summary Test Report (13/7/90)
Pool Funds Transfer System (PFTS) PHASE 2.0
Documentation EPFAL PFTS Phase II User Manual Version 1 Documentation EPFAL PFTS
Phase II DBA Guide Version 1 Physical Design Documentation (volumes 1-4)
(22/6/90) Functional Specification - Appendices (April 1990) Addendum to the
Detailed Physical Design (May 1991)
Part B
Licensed
(VMS, unless otherwise stated)
VAX System
VMS Sun Account 3.5.14 purchased 1/7/90. Licence No. 002505.
Documentation - Standard Reference/Installation/Getting started and Tutorial
manuals.
VMS v.5.4 issued 1/5/90. Licence pack LP594621 s/no. 01440169.
PCSA/Decnet v.4 End User Node issued 1/5/90. Licence pack LP594624 s/no.
01440172.
Lotus123 v.2.2 Server Version purchased 1/91 - upgraded to v.3.1+ 18/9/91. Note
a VMS version.
Oracle RDBMS v.6 purchased 16/5/91 with full set of delivered documentation.
PC based Novell Network
Novell Advanced Network 286 v.2.15 Rec C purchased 3/90 via 3rd party. Full set
Netware documentation Reference Installation/Guides etc.
Sun Account v.3.5.3 purchased via 3rd party 3/90. Full set documentation
- -Reference/Installation/Getting started and Tutorials.
Lotus 123 v.3.1 Server purchased 18/9/91. Upgrade from v.2.2 purchased 1/91.
ANNEX 5
Escrow Arrangements
1.1 EPFAL Escrow Agreement
No later than 1st February, 1993 (or such later date as EPFAL and the
Executive Committee may agree in writing) EPFAL in its capacity as the
Pool Funds Administrator (for itself and on behalf of the Pool Members
acting through the Executive Committee) shall enter into and deliver an
escrow agreement (the "PFA Escrow Agreement") in the form to be agreed
between EPFAL and the Executive Committee with a reputable escrow agent
to be agreed between EPFAL and the Executive Committee (the "PFA
Custodian"). Forthwith upon entering into the PFA Escrow Agreement
EPFAL shall deposit with the PFA Custodian to the extent then in
existence (and, if not in existence, as soon as possible after it comes
into existence):-
1.1.1 a copy of the source code and load (machine executable)
modules relating to all Funds Transfer Software beneficially
owned by it together with all job control language and
licensed software system tables, each in a machine readable
form and the source code and job control language in a hard
copy form;
1.1.2 a copy of all related manuals and other associated
documentation, including:-
(a) any user requirement documents, together with all
associated authorised change
requests;
(b) any functional specification documents associated with
those documents described in sub-paragraph (a) above,
together with all authorised change requests
associated with the relevant functional specification;
(c) to the extent available to EPFAL, any design
specification documents associated with those
documents described in sub-paragraphs (a) and (b)
above, together with all authorised change requests
associated with the relevant design specification;
(d) any program and/or user guides prepared to assist in
the day-to-day operation and future development of the
computer programs (including records of test cases
together with the associated test input and output
data used for validation purposes);
(e) any relevant test strategy schedules and acceptance
test schedules as specified for functional and
operational end to end testing;
(f) any relevant test acceptance certificates and reports
for all tests recording comments and observations made
on the appropriate tests where such tests commissioned
by EPFAL;
(g) any relevant client acceptance certificates and Pool
Auditor's reports, together with any reports recording
such clients' and the Pool Auditor's observations and
comments on the tests;
(h) any relevant compilation or detailed operating
procedures required in connection with any of the
relevant paragraphs in this paragraph 1.1.2;
(i) all software licences for Funds Transfer Software
licensed to EPFAL; and
(j) a list detailing all versions of Funds Transfer
Software licensed to EPFAL (including operating
systems and compilers) used in creating such versions
of the object code detailing the version numbers used
and any program temporary fixes or equivalent modes;
1.1.3 a copy of all historical data (including all transaction,
reference and audit data and changes to standing data)
relating to the operations of EPFAL in its capacity as Pool
Funds Administrator;
1.1.4 all the material referred to in sub-clauses 1.1.1 to 1.1.3
above is hereafter together referred to in this Annex 5 as
the "PFA Material".
1.2 Licensed Funds Transfer Software
If, after consultation with EPFAL, the Executive Committee shall so
request, EPFAL shall use its reasonable endeavours to procure that the
owner of any Funds Transfer Software shall permit the deposit of such
Funds Transfer Software licensed to EPFAL with the PFA Custodian or
other reputable escrow agent on the terms of the Escrow Agreement or
similar agreement approved by the Executive Committee.
1.3 Updating
EPFAL shall ensure that the PFA Material deposited with the PFA
Custodian is kept fully up-to-date and reflects all Modifications (as
defined in the PFA Escrow Agreement) and shall deposit a copy of all
Modifications with the PFA Custodian as soon as the same are available,
all in accordance with the terms of and subject to the conditions of
the PFA Escrow Agreement. EPFAL shall notify the Executive Committee
promptly of the delivery of each Modification to the PFA Custodian.
SCHEDULE 16
Matters requiring consent of
the Settlement System Administrator
The Settlement System Administrator's membership of, and the procedures and
powers of, the Project Board
Terms of reference of project managers
Approval of project documents
Quality standards (including design, coding, testing, implementation and
documentation)
Role of Pool Auditor in systems development
Components of project life cycle
Ownership and warranties on development
Housekeeping
The Settlement System Administrator's responsibilities and rights
Use of the Settlement System Administrator's resources
Implementability of systems - technical compatibility with existing system
- use of the Settlement System Administrator's
facilities for testing
- parallel operation
- migration into production
- configuration control
- implementation planning
Operability of systems - operational feasibility
- operational support requirements
- operational testing
- interface design
- performance
- security
- auditability
- reliability
Maintainability of systems - design integrity
- design documentation
- adherence to design and coding standards
- reliability
- configuration control
SCHEDULE 17
Trading Sites
Part A
General
1. Introduction: A site shall be identified as a Trading Site for the purposes
of this Agreement in accordance with the following provisions of this
Schedule.
2. Application: A Party may apply to the Executive Committee for a site to be
treated as a Trading Site by sending to the Executive Committee a written
application in the form prescribed by the relevant Agreed Procedure (in
this Schedule, a "Trading Site Application") stating the class of
application and containing the other information and supported by the
documents and other matters referred to in Part C and signed by or on
behalf of the Generator concerned and the Supplier concerned where there
exists a Supplier in respect of that site (together in this Schedule, the
"Applicants").
3. Decision: The Executive Committee shall consider any Trading Site
Application within 45 days after receipt in accordance with the
procedures set out in Part B and (subject to paragraph 5 of Part B)
shall within that period make a determination as to whether the site
the subject of such application (in this Schedule, the "Nominated
Site") shall be treated as a Trading Site and shall promptly notify the
Applicants and the Settlement System Administrator of its
determination.
Part B
Procedures
1. Classes: Every Trading Site Application shall state whether it is a
Class 1, Class 2, Class 3 or Class 4 application and the Executive
Committee shall consider a Trading Site Application by reference to the
provisions set out in this Part B for the stated class (or, in the case
of paragraph 5, as provided therein).
2. Class 1: If the Trading Site Application shall state that it is a Class
1 application then the Executive Committee shall determine from the
Trading Site Application and supporting documentation and other matters
(and any further evidence provided in accordance with paragraph 6) if
the Nominated Site is a Power Station which is or is to be electrically
configured in the same manner as is prescribed in one of the line
diagrams contained in the relevant Agreed Procedure and fulfils all the
conditions specified in such Agreed Procedure applicable to a Class 1
application, in which event the Nominated Site shall be treated as a
Trading Site.
3. Class 2: If the Trading Site Application shall state that it is a Class
2 application then the Executive Committee shall determine from the
Trading Site Application and supporting documentation and other matters
(and any further evidence provided in accordance with paragraph 6) if
the generation and demand at the Nominated Site are electrically
connected solely by Dedicated Assets, in which event the Nominated Site
shall be treated as a Trading Site.
In this paragraph, "Dedicated Assets" means assets and equipment which
are used solely to connect electrically (a) the location at which the
generation originates with (b) the location at which the demand is
taken (and no other), and additionally satisfy one of the diagrammatic
representations of Dedicated Assets contained in the relevant Agreed
Procedure.
4. Class 3: If the Trading Site Application shall state that it is a Class
3 application then the Executive Committee shall determine from the
Trading Site Application and supporting documentation and other matters
(and any further evidence provided in accordance with paragraph 6) if
the generation and demand at the Nominated Site are electrically
connected by Contiguous Assets, in which event the Nominated Site shall
be treated as a Trading Site.
In this paragraph:-
(a) "Contiguous Assets" means those Specified Assets and
Equipment at a location which connect by one continuous
electrical connection the location at which the generation
originates with the location at which the demand is taken,
which Specified Assets and Equipment are all owned by the
Applicants and/or are Specified Assets and Equipment in
respect of which a contribution is or will be made by the
Applicants to the provision and installation or maintenance
and repair costs thereof or where such Specified Assets and
Equipment are already provided and installed, the
maintenance and repair costs thereof; and
(b) "Specified Assets and Equipment" means assets and equipment
identified and quoted in the Connection Agreement of either
Applicant where such assets and equipment include assets and
equipment identified and quoted in the Connection Agreements
relating to both Applicants which form part of the
continuous electrical connection for the purposes of (a)
above.
5. Class 4:
5.1 If the Trading Site Application shall state that it is a Class 4
application or if the Executive Committee shall determine that the
Nominated Site the subject of a Class 1, Class 2 or Class 3 Trading Site
Application does not satisfy the conditions specified in paragraph 2, 3 or
(as the case may be) 4, the Executive Committee shall determine from the
Trading Site Application and supporting documentation and other matters
(and any further evidence provided in accordance with paragraph 6) if the
Nominated Site shall be treated as a Trading Site having regard to the
criteria set out in paragraph 5.2.
5.2 The criteria referred to in paragraph 5.1 are:-
(a) whether special circumstances existed before 30th March,
1990 which demonstrate to the reasonable satisfaction of the
Executive Committee that the generation and demand were
treated as being on a Trading Site;
(b) whether special circumstances existed before 11th December,
1991 which demonstrate to the reasonable satisfaction of the
Executive Committee that the generation and demand should
have been treated as on a Trading Site;
(c) whether, although not satisfying the conditions applicable
to a Class 1, Class 2 or Class 3 Trading Site Application,
if, to the reasonable satisfaction of the Executive
Committee, the Trading Site Application demonstrates
sufficient similarities with sites which would satisfy those
conditions such that it would be unreasonable not to treat
the Nominated Site as a Trading Site;
(d) whether there are any other facts or evidence in support of
the Trading Site Application which in the reasonable opinion
of the Executive Committee demonstrate that the Nominated
Site ought to be treated as a Trading Site.
6. Further evidence: The Executive Committee may request an Applicant to
produce such further evidence as the Executive Committee may reasonably
require in support of its Trading Site Application before the Executive
Committee makes any determination as to whether the Nominated Site is
to be treated as a Trading Site, and the Executive Committee shall not
be bound to make any determination on the issue of whether the
Nominated Site is a Trading Site pending receipt of such further
evidence.
7. Majorities: Any determination of the Executive Committee in favour of
treating a Nominated Site as a Trading Site shall require a simple
majority of the votes cast by Committee Members at the relevant meeting
provided that in the case of a Trading Site Application which falls to
be considered under paragraph 5 the necessary majority shall be 75 per
cent. of all the votes cast by Committee Members.
8. Effect of determination: If the Executive Committee shall determine
pursuant to paragraph 2, 3, 4 or (as the case may be) 5 that a
Nominated Site is a Trading Site all metered values of all meters
associated with the Nominated Site and identified in the Trading Site
Application shall be aggregated in accordance with the provisions of
sub-section 3.3 of, and paragraph 2F of Appendix 6 to, Schedule 9.
Part C
Trading Site Applications
1. Every Trading Site Application shall contain the following
information:-
(a) the name and address of the Applicants;
(b) a full description of the Nominated Site;
(c) a full description of the Metering Systems (if any) located
or to be located at the Nominated Site and of their location
together with a full description of the points at which all
electricity flows relative to the Nominated Site are to be
measured;
(d) such other information as may be specified in the relevant Agreed
Procedure; and
(e) such other information as the Applicants shall consider relevant to
their application.
2. Every Trading Site Application shall be accompanied by the following
documents and other matters:-
(a) line diagrams showing the electrical connections and energy
flows at the Nominated Site and the location of Metering
Systems (if any) and evidence demonstrating that the assets
and equipment electrically connecting the generation and
demand are capable of transmitting or distributing the
quantity of electricity to be transmitted or distributed to
the Nominated Site;
(b) confirmation from the Settlement System Administrator,
having duly notified the Grid Operator, that it is satisfied
that the metering arrangements at the Nominated Site are
compatible with the operation of Settlement;
(c) in the case of a Class 2 or Class 3 Trading Site
Application, other evidence demonstrating the existence of
Dedicated Assets or (as the case may be) Contiguous Assets
(including any Connection Agreements or relevant parts
thereof).
Part D
Additional Provisions
1. (a) The Settlement System Administrator, the Grid Operator
and each Public Electricity Supplier shall co-operate with
the Applicants (insofar as is reasonable) to enable them to
prepare and deliver a Trading Site Application by making
available (upon reasonable notice) line diagrams relevant to
the Nominated Site.
(b) The Settlement System Administrator and the Grid Operator
shall review the Metering Systems relative to the Nominated
Site for the purposes of issuing confirmations required by
the Executive Committee and, where such confirmations are
considered appropriate by the Settlement System
Administrator and the Grid Operator, shall issue the
requisite confirmations.
(c) In relation to (a) and (b), the reasonable costs and
expenses of the Settlement System Administrator, the Grid
Operator and each relevant Public Electricity Supplier shall
be borne by the Applicants.
2. A Nominated Site which the Executive Committee resolves should be
treated as a Trading Site (or is otherwise to be so treated) shall
cease to be treated as a Trading Site if the Executive Committee
reasonably determines that the site no longer fulfils the conditions
upon which the approval for it being so treated was based. The
Generator Applicant shall forthwith notify the Executive Committee if
the site no longer fulfils such conditions.
SCHEDULE 18
The Ancillary Services Accounting Procedure
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Schedule, unless the context otherwise requires,
the words and expressions set out in this Section 1.1 shall bear the
meanings respectively set out herein:-
"ASP Budget" means any budget prepared by the Ancillary Services
Provider pursuant to Section 2.1;
"Audit Adjustments" means the aggregate value of all changes in the
Cost Base required to be taken into account by the Ancillary Services
Provider during any Accounting Period in order to give effect to the
conclusions resulting from an audit commissioned pursuant to Clause
51.5;
"Capital Expenditure" means, in respect of any Accounting Period,
expenditure by the Ancillary Services Provider on fixed assets required
for the purposes of the Ancillary Services Business including assets
acquired on lease which are required by generally accepted accounting
principles to be capitalised;
"Cost Base" means, in respect of any Accounting Period, Total Operating
Costs for such period less Depreciation during such period;
"Depreciation" means, in respect of any Accounting Period, the
aggregate value of all depreciation on assets owned or employed by the
Ancillary Services Provider in the Ancillary Services Business, such
assets being depreciated in accordance with the accounting policies of
the Ancillary Services Provider for such period as stated in the
audited accounts of the Ancillary Services Provider for such period and
treated as depreciation in accordance with the terms of the Agreement;
"Efficiencies" means, in respect of any Accounting Period, the amount
(if any) by which the Cost Base in such Accounting Period is less than
the Cost Base in the immediately preceding Accounting Period (the
"First Period") after adjustments on a pound for pound basis to any
difference between such two Cost Bases to offset movements from the
Cost Base in the First Period due to the Rate of Inflation, Audit
Adjustments and any other matters beyond the control of the Ancillary
Services Provider and changes in the accounting principles or practices
of the Ancillary Services Provider made during the Accounting Period in
question;
"Executive" means those members of the Executive Committee
representing Suppliers;
"Individual Limit" means, in respect of Capital Expenditure in any
Accounting Period, (pound)25,000, as the same may be increased from the
Effective Date by the Rate of Inflation;
"Margin" means:-
(i) in respect of each of the first three Accounting Periods,
such amount as when added to the Total Operating Costs
(excluding for this purpose any payments made by the
Ancillary Services Provider for Ancillary Services, and the
price of any goods and services referred to in Section 6.2
if the price exceeds the aggregate cost of supplying such
goods and services actually incurred by the relevant
affiliate of, or other division of, the company of which the
Ancillary Services Provider is a division) in the relevant
Accounting Period is equal to 10 per cent. of the sum of
such amount and such Total Operating Costs; and
(ii) thereafter, such margin as may be agreed between the
Executive and the Ancillary Services Provider (or, in
default of agreement, such margin as is reasonable in all
the circumstances as determined pursuant to Clause 83);
"Overall Limit" means, in respect of Capital Expenditure in any
Accounting Period, (pound)100,000, as the same may be increased from
the Effective Date by the Rate of Inflation;
"Statement of Charges" means the statement of charges required to be
submitted by the Ancillary Services Provider pursuant to Section 2.8 in
the form or substantially in the form set out in Part 3 of the Annex or
such other form as the Executive and the Ancillary Services Provider
may agree showing the total charges to be made by the Ancillary
Services Provider on all Suppliers in accordance with this Schedule;
"Statement of Costs" means the statement of costs required to be
submitted by the Ancillary Services Provider pursuant to Section 2.4
setting out the actual and accrued expenditure incurred by the
Ancillary Services Provider in any period which shall be substantially
in the form set out in Part 2 of the Annex or such other form as the
Executive and the Ancillary Services Provider may agree; and
"Total Operating Costs" means, in respect of any Accounting Period or
part thereof:-
(i) the total expenditure properly incurred or accrued by or on
behalf of the Ancillary Services Provider in operating the
Ancillary Services Business in such period or part thereof
(other than that referred to in (ii) and (iii) below); plus
(ii) all Depreciation in such period on all assets owned and
employed by the Ancillary Services Provider in the Ancillary
Services Business; plus
(iii) all other expenditure properly incurred or accrued during
such period which, under this Schedule, is permitted to be
included in any Statement of Costs; plus
(iv) Efficiencies which are permitted to be included in any
Statement of Costs pursuant to Section 5.4.
1.2 Interpretation:
1.2.1 In this Schedule, except where the context otherwise
requires, references to a particular Section, sub-section or
paragraph or to the Annex shall be a reference to that
Section, sub-section or paragraph of, or the Annex to, this
Schedule.
1.2.2 In this Schedule the expression "Rate of Inflation" shall
have the meaning assigned to it in Schedule 4.
2. ASP BUDGETS, STATEMENTS OF COSTS AND STATEMENTS OF CHARGES
Budgets
2.1 ASP Budgets: Not earlier than six nor later than three months prior to
the first day of each Accounting Period (other than the first) the
Ancillary Services Provider shall prepare and submit to the Suppliers
an ASP Budget for such Accounting Period. Such ASP Budget shall be
indicative only but prepared on a best estimates basis. The ASP Budget
for the first Accounting Period shall be that set out in Part 1 of the
Annex.
2.2 Contents of ASP Budgets: Each ASP Budget (other than the first) shall
compare each item or category of budgeted expenditure shown therein
with the forecast expenditure in respect of such item or category for
the remainder of the then current Accounting Period and report any
salient differences between any such forecast expenditure and the
budgeted expenditure in respect of each such item or category in the
immediately preceding ASP Budget.
2.3 Form of ASP Budgets: Each ASP Budget shall be substantially in the form
of that set out in Part 1 of the Annex (or in such other form as the
Ancillary Services Provider and the Executive may from time to time
agree).
Statement of Costs
2.4 Statement of Costs: No later than one month following the date in
any Accounting Period of the publication of the audited accounts
for the Ancillary Services Business for the previous Accounting
Period, the Ancillary Services Provider shall prepare and submit
to each Supplier a Statement of Costs for such previous
Accounting Period. The audited accounts of the Ancillary Services
Provider and the auditors' management letter, to the extent it
relates to the economy, efficiency and effectiveness of the
Ancillary Services Provider in carrying out its duties, shall
accompany each Statement of Costs for each entire Accounting
Period.
2.5 Form of Statement of Costs: The Statement of Costs for any Accounting
Period shall attribute actual expenditure for such period against,
inter alia, each of the categories and sub-categories set out in the
corresponding ASP Budget for such Accounting Period.
2.6 Accompanying Report: Each ASP Budget and Statement of Costs for
an entire Accounting Period submitted to the Suppliers pursuant
to Section 2.1 or 2.4 shall be supported by a written report of
the Ancillary Services Provider commenting in reasonable detail
upon the matters comprised in the categories of expenditure
included in such ASP Budget or Statement of Costs drawing
attention to and giving reasons for any unusual commitment or
item of expenditure proposed to be incurred or which has been
incurred and, in the case of a Statement of Costs, explaining the
difference (if material) between:-
2.6.1 the amount set against each item or category therein; and
2.6.2 the amount set against each corresponding item or category
in the immediately preceding ASP Budget.
2.7 Accounting Practices: Each ASP Budget and Statement of Costs
shall be prepared on the basis of the accounting principles and
practices used to draw up the most recent audited accounts of the
Ancillary Services Provider and consistently applied. If any
Statement of Costs for an entire Accounting Period is not
prepared on such basis, the Ancillary Services Provider shall
prepare and submit to the Suppliers a pro-forma set of audited
accounts of the Ancillary Services Provider for such entire
Accounting Period which is prepared on the basis of the
accounting principles and practices used to prepare the relevant
Statement of Costs. Any changes in the accounting principles and
practices or their method of application used to prepare audited
accounts of the Ancillary Services Provider shall be noted in the
next following ASP Budget or Statement of Costs, as the case may
be.
2.8 Statement of Charges: A Statement of Charges shall accompany each Statement
of Costs.
2.9 Bad debts: The total cost of any bad debts of the Ancillary Services
Provider arising in any Accounting Period may be taken into account by
the Ancillary Services Provider in its Statement of Costs for such
Accounting Period or any subsequent Accounting Period and accordingly
recovered as part of Total Operating Costs for any such Accounting
Period.
3. AUDITORS' OPINION
The Statement of Costs to be sent to the Suppliers pursuant to Section
2.4 shall be accompanied by a report from the auditors of the Ancillary
Services Provider considering whether in such auditors' opinion:-
3.1 the Statement of Costs is in agreement with the underlying
books and records of the Ancillary Services Provider; and
3.2 Total Operating Costs and Depreciation have been properly
extracted from the audited financial statements.
Such auditors' report shall also contain such other matters as the
Executive may agree with the auditors of the Ancillary Services
Provider.
4. ACCOUNTING PERIOD
The first Accounting Period shall run from (and including) 31st March,
1990 to (and including) 31st March, 1991. Thereafter, unless agreed by
the Ancillary Services Provider and the Executive each Accounting
Period shall be for a period of twelve months. In the event that the
Ancillary Services Provider wishes to change its accounting reference
date it shall give due notice thereof to the Executive which shall
agree to enter into an amending agreement to give effect to the same at
the cost and expense of the Ancillary Services Provider.
5. ANCILLARY SERVICES PROVIDER'S CHARGES
5.1 Ancillary Services Provider's charges: In respect of each Accounting
Period, the Ancillary Services Provider shall be entitled to recover
from the Grid Operator in addition to the cost of Ancillary Services
the aggregate of:-
5.1.1 Total Operating Costs for the relevant Accounting Period (as
identified by the Statement of Costs for such Accounting
Period to be submitted pursuant to Section 2.4); and
5.1.2 the Margin.
5.2 Recovery of Charges: The Ancillary Services Provider's charges in
respect of any Accounting Period shall be recovered from the Grid
Operator on a daily basis in accordance with the Pool Rules and by
reference to the allocation provided therein by:-
5.2.1 estimating a daily amount necessary to recover the charge by
reference to the ASP Budget and, where appropriate, any
under- or over-recovery in respect of any previous
Accounting Period; and
5.2.2 adjusting that amount by reference to any subsequent
Statement of Costs.
5.3 Revision of Estimates: If the Ancillary Services Provider reasonably
believes that the amount which will be recovered under Section 5.2 is
likely to be 10 per cent. more or less than the amount to which it is
entitled under Section 5.1 it shall, with the consent of the Executive
(such consent not to be unreasonably withheld or delayed), revise as
appropriate the estimate made in accordance with Section 5.2.
5.4 Sharing of Efficiency: The Ancillary Services Provider shall
be entitled to the benefit of all Efficiencies and,
accordingly, to charge Grid Operator the amount of all
Efficiencies by including them in ASP Budgets and Statements
of Cost in the following manner. The amount of any
Efficiency arising in any Accounting Period shall be
identified in the Statement of Costs for such Accounting
Period submitted pursuant to Section 2.4 and shall be taken
into account in the Statement of Costs for the two
successive Accounting Periods thereafter. Accordingly, the
amount of any Efficiency may be included in any Statement of
Costs for the two Accounting Periods following that in which
the Efficiency is identified. In the Statement of Costs for
the third consecutive Accounting Period and all following
Accounting Periods thereafter the amount of such Efficiency
shall be eliminated.
6. CORPORATE OVERHEAD CHARGES AND PURCHASES
6.1 Corporate Overhead Charges: The Ancillary Services Business
may take into account in any ASP Budget or Statement of
Costs (and consequently its charges to Suppliers) all
corporate overhead charges payable by the Ancillary Services
Provider to its immediate holding company or any other
division of the company of which it is a division provided
such corporate overhead charges are reasonable and in due
proportion to the corporate overhead charges payable by
other affiliates of the Ancillary Services Provider or
divisions of the company of which the Ancillary Services
Provider is a division as reported upon by the auditors of
the Ancillary Services Provider.
6.2 Goods or services: Purchases of goods or services from affiliates of
the Ancillary Services Provider shall be on arm's length terms.
7. FUEL SECURITY
Except to the extent recoverable under any other provision of this
Schedule, any additional costs necessarily incurred by the Ancillary
Services Provider in running the Ancillary Services Business during a
Security Period shall be regarded as beyond the control of the
Ancillary Services Provider, which may recover the same in full from
Suppliers provided such costs have been verified as additional costs by
the auditors of the Ancillary Services Provider. Suppliers shall be
obliged to pay the actual amount of such costs and expenses.
8. CAPITAL EXPENDITURE
8.1 Capital Expenditure (1): The following provisions apply to Capital
Expenditure by the Ancillary Services Provider in respect of the
Ancillary Services Business:-
8.1.1 save as provided below, Capital Expenditure by the Ancillary
Services Provider which may be recovered by Depreciation
charged to Suppliers shall require the prior approval of the
Executive in writing, such approval to take into account an
appropriate sharing of the Efficiencies arising from such
Capital Expenditure;
8.1.2 Capital Expenditure which may be recovered by Depreciation
charged to Suppliers specified in any ASP Budget shall be
regarded as approved by the Executive unless the Executive
notifies the Ancillary Services Provider to the contrary
within one month after receipt of such ASP Budget;
8.1.3 in any Accounting Period the Ancillary Services Provider may
incur Capital Expenditure which may be recovered by
Depreciation charged to Suppliers without the need to
consult or obtain the approval of the Suppliers up to a
maximum of the Individual Limit for each item of Capital
Expenditure and a maximum of the Overall Limit for all items
of Capital Expenditure and, in the event of the Ancillary
Services Provider incurring such Capital Expenditure, it
shall notify the Executive as soon as practicable
thereafter; and
8.1.4 the Ancillary Services Provider shall be entitled to incur
Capital Expenditure which may be recovered by Depreciation
charged to Suppliers of any amount without the need to
obtain the approval of the Executive in circumstances
where:-
(a) the Ancillary Services Provider would be in breach of
its duties under the NGC Transmission Licence unless
such Capital Expenditure were incurred; and
(b) it has not reached agreement with the Executive on
such Capital Expenditure within a reasonable period of
time.
8.2 Capital Expenditure (2): Capital Expenditure not falling
within Section 8.1 may not be charged as Depreciation to
Suppliers.
ANNEX
Part 1
ASP Budget for the First Accounting Period
(pound)M
Purchases of Ancillary Services 85.00
Local Overheads 0.81
NGC Corporate Management Charge 0.48
NGC System Operations Charge 0.25
NGC Settlement Systems Charge 0.25
=============
86.79
=============
Part 2
Pro-forma Statement of Costs
(pound)M
Purchases of Ancillary Services
Local Overheads
NGC Corporate Management Charge
NGC System Operations Charge
NGC Settlement Systems Charge
Part 3
Pro-forma Statement of Charges
- -------- ---------------------------------------------------------------------
Name Contributory Share Period to which charges relate Amount
- -------- ----------------------------------------------------------------------
SCHEDULE 19
Objective and Scope of
the Scheduling and Despatch Review
1. Objective: The objective of the Scheduling and Despatch Review will be to
establish that:-
1.1 scheduling and despatch is carried out in accordance with the
Scheduling and Despatch Code; and
1.2 information is entered into PORTHOLE in accordance with the Pool
Rules.
2. Scope: The scope of the review will be to:-
2.1 review internal scheduling and despatch operating procedures
for consistency with the Scheduling and Despatch Code;
2.2 review the internal checks that the Grid Operator has
established to ensure that the operation of scheduling and
despatch has been carried out in accordance with the
procedures referred to in Section 2.1;
2.3 perform compliance testing of the operation of the internal
checks referred to in Section 2.2;
2.4 review the operating procedures in relation to the use of the BPS
GOAL program, including:-
(a) controls over the input of data and the output of data
to establish that they are appropriate to ensure an
adequate level of control; and
(b) procedures for the retention of records of the nature
and extent of and reasons for any manual adjustments
to BPS GOAL output or where BPS GOAL is run using
non-standard parameters, for consistency with the
Scheduling and Despatch Code;
2.5 perform compliance testing of the operating procedures referred
to in Section 2.4;
2.6 review the operating procedures referred to in Sections 2.1,
2.2 and 2.4 to establish that there is no bias in favour of
or against any particular Pool Member on the part of the
Grid Operator;
2.7 review the operating procedures relating to the recording of
despatch instructions, availability declarations, generation
offer prices and the application of reason codes and the
entry of data into PORTHOLE for consistency with the Pool
Rules;
2.8 perform compliance testing of the operating procedures referred
to in Section 2.7;
2.9 review the operating procedures referred to in Section 2.1
to establish that in the call for the delivery of Ancillary
Services by the Grid Operator there is no bias in favour of
or against any particular Pool Member on the part of the
Grid Operator;
2.10 review the call for the delivery of Ancillary Services;
2.11 compare the generation schedule forecast demand with actual
demand; and
2.12 review the generation schedule forecast demand for
consistency with Section OC1 of the Grid Code.
SCHEDULE 20
Accountable Interest
1. Definitions: In this Schedule:-
"Generating Unit" means any Generating Unit whether or not situate in
England or Wales;
"Operator" means, in relation to any Generating Unit, the Authorised
Electricity Operator or any other person for the time being responsible
(under contract or otherwise) for the generation or sale of electricity
from such unit;
"Own Generating Unit" means any Generating Unit the majority beneficial
ownership of which is vested in the person or an affiliate of the
person or in respect of which the person or an affiliate of the person
is the Operator; and
"Underlying Interest" means, in relation to any Generating Unit, any
interest arising by reason of the person or affiliate or any related
undertaking of the person or affiliate (whether alone or with others):
(a) holding or being entitled to acquire an interest in the land on
which the Generating Unit, or any part thereof, is built;
(b) being in partnership with or party to any arrangement for
sharing of profits or cost-savings or any joint venture with
any person holding or entitled to acquire an interest in the
land on which the Generating Unit, or any part thereof, is
built;
(c) owning any electrical plant situated on or operated as a
unit with the Generating Unit (and for such purpose, any
electrical plant or equipment to the possession of which the
person, affiliate or related undertaking is entitled under
any agreement for hire, hire purchase, conditional sale or
loan shall be deemed to be owned by such person) provided
always that such electrical plant shall not be deemed to be
operated as a unit with any Generating Unit by reason only
of connections with any other system for the transmission or
distribution of electricity; or
(d) having obtained any consent under section 36 of the Act
required for the construction or extension of the Generating
Unit or any part thereof.
2. Accountable Interests: The rules for determining whether or not any
person has an Accountable Interest in any Generating Unit and, if so,
the MW in respect of which that person shall be treated as having such
an Accountable Interest shall, subject to the following sections of
this Schedule, be ascertained in such manner as the Executive Committee
with the approval of the Director may determine being the appropriate
share (namely the share representing that person's economic interest
therein) in the declared net capacity of any Generating Unit.
3. Net capacity: There shall be attributed to the person the whole of the
declared net capacity represented by any Own Generating Unit.
4. Determination of Accountable Interest: For the purposes of this
Schedule and subject to Section 5, the person shall have an Accountable
Interest in a Generating Unit (not being an Own Generating Unit) in
circumstances where:-
4.1 the Operator is a related undertaking of the person or any
affiliate of the person; or
4.2 the person or any affiliate of the person is in partnership
with or is party to any arrangement for sharing profits or
cost-savings or any joint venture with the Operator or with
any third party with regard to the Operator; or
4.3 the person or any affiliate of the person has (directly or
indirectly):-
(a) any beneficial shareholding interest in the Operator;
or
(b) any beneficial Underlying Interest in the Generating
Unit; or
(c) provided or agreed to provide finance to the Operator
otherwise than on arm's length terms; or
(d) provided or agreed to provide, or has determined or is
responsible for determining the price (or other terms
affecting the financial value) of, the fuel used in
the Generating Unit.
5. No Accountable Interest: The person shall not be deemed to have an
Accountable Interest in a Generating Unit where:-
5.1 such Generating Unit is owned and operated by NGC under a
licence granted pursuant to section 6 of the Act; or
5.2 the person's interest arises wholly under the terms of the
Agreement or under any electricity purchase or sale
contract; or
5.3 the person's interest arises solely by virtue of
arrangements for the sharing with the Operator of any
Generating Unit of the risks associated with changes in the
price of fuel used by the Generating Unit during the term of
any contract for the provision of electricity from the
Generating Unit to the person.
6. Amount of Capacity: The Pool Member submitting an Admission Application
shall provide to the Executive Committee and the Director a statement
identifying (in such detail and with such supporting documents or
information as the Executive Committee or the Director may require) the
amount of capacity in MW represented by the Registered Capacity of
Generating Units in which any person who has an Accountable Interest in
the Generating Unit which is the subject of the Admission Application,
including the Pool Member, has an Accountable Interest, as at the date
of the statement.
7. Alternative Basis of Calculations: Where the Executive Committee or the
Director is satisfied that the basis of calculation used by the Pool
Member is not in conformity with this Schedule, the Executive Committee
or the Director may issue directions specifying an alternative basis of
calculation, and the basis of calculation provided by the Pool Member
shall be adjusted accordingly with effect from the date of issue of the
directions or such other date as may be specified in the directions.
SCHEDULE 21
METER OPERATOR SCHEDULE
PART 1
PRELIMINARY
1. INTRODUCTION
1.1 Definitions and constructions: The Parties and Meter Operator Parties
expressly agree and acknowledge that the words and expressions listed
below, and which are used for the purposes of this Schedule, shall not be
capable of amendment without the consent of Meter Operator Parties, but
that any word or expression which is not so listed in this Schedule but is
a definition for the purposes of this Agreement and is used primarily for
parts of this Agreement other than this Schedule shall, subject to
paragraph 2.2.3 and without prejudice to paragraph 2.5, be capable of being
amended without such consent notwithstanding that it may also be used in
this Schedule:-
Active Energy;
Active Power;
Agreed Procedure;
Agreed Procedures Index;
Code of Practice;
Communications Equipment;
Embedded Non-Franchise Site;
Equipment Owner;
ERS;
ERS First Tier Customer;
Exports;
FMS Codes of Practice;
FMS Date;
FMS Metering Equipment;
FMS Trading Date;
Force Majeure;
Generic Dispensations;
Good Industry Practice;
Host PES;
Imports;
Invitee;
Licence Restricted Party;
Meter;
Metering Equipment;
Metering System;
Meter Operator Admission Application; Meter Operator Party; Meter
Operator Party Accession Agreement; Meter Operator Party Resignation
Notice; MVAr Metering Equipment; New Meter Operator Party; Non-Pooled
Generator Operator; Outstation; Potential Operator; Reactive Energy;
Reactive Power; Register; Registrant; Second Tier Customer; Substantial
Part; Synopsis of Metering Codes; Tariff or relevant Tariff; Tariff
Operator; and Third Parties.
1.2 Interpretation: Wherever a reference is made in this Schedule to a
Meter Operator Party or to an Operator, such reference shall be to a
Meter Operator Party in its capacity as such Meter Operator Party or,
where the context so requires, to an Operator in its capacity as
Operator, but shall not refer to the person which is that Meter
Operator Party or Operator in, and shall be in all cases without
prejudice to, any other capacity in which such person may be party to
this Agreement.
1.3 Agreed Procedures and Codes of Practice:
1.3.1 Each of the Parties and each of the Meter Operator Parties
undertakes to comply with the Agreed Procedures and the
Codes of Practice insofar as applicable to it.
1.3.2 The Settlement System Administrator shall retain copies of
all Agreed Procedures and Codes of Practice and of any other
documentation referred to in such Agreed Procedures or Codes
of Practice and shall provide a copy of all or any thereof
to any Party or Meter Operator Party on request and may make
a reasonable charge for such provision.
1.3.3 Notwithstanding the absence from time to time of its express
consent, each Meter Operator Party hereby expressly
acknowledges and agrees to be bound by the provisions
contained in this Agreement which govern the method by which
all Agreed Procedures and Codes of Practice may be, from
time to time, changed or substituted and which determine the
meaning in any given context of the terms the "relevant
Agreed Procedure" and the "relevant Code of Practice".
1.4 Agreed Procedures and Codes of Practice: Referral to the Director:
1.4.1 Without prejudice to paragraph 1.3.3, where any Meter
Operator Party considers that any change proposed to be made
to any Agreed Procedure or to any Code of Practice would
have a material adverse effect on its rights and liabilities
as a registered Operator, a Potential Operator or Tariff
Operator as set out in this Schedule (the "proposed
change"),
it shall have the right in the prescribed time limits to
refer the matter in writing to the Director (such referral
to be copied to the Executive Committee) who shall
determine, taking into account the views expressed by the
Executive Committee and any Parties referred to below in
this paragraph, whether such proposed change has such a
material adverse effect. The Director's determination shall
be final and binding for all purposes.
1.4.2 For the purposes of enabling any Meter Operator Party to
appeal to the Director against a proposed change to any
Agreed Procedure or Code of Practice in accordance with
paragraph 1.4.1, the Executive Committee shall give all
Parties, Meter Operator Parties and the Director notice of
the proposed changes at least fourteen clear days prior to
the implementation of such proposed change in accordance
with the provisions of this Agreement.
1.4.3 If an appeal to the Director against a proposed change to
any Agreed Procedure or Code of Practice is made within 14
days after notification by the Executive Committee pursuant
to paragraph 1.4.2, the change shall not come into effect
until the determination of the Director has been made and
then subject to paragraph 1.4.4. If no appeal is made within
the said 14 days, the change shall come into effect on the
expiry of that period (or such later date as the Executive
Committee may determine).
1.4.4 The Director shall within 28 days of receipt of a referral
(or within such extended period as the Director shall have
notified to the Executive Committee within that 28 day
period as being necessary to enable him to reach a
considered determination) pursuant to paragraph 1.4.1 make
the determination referred to therein giving supporting
reasons and:-
(i) if the determination of the Director is that the
proposed change does not have a material adverse
effect upon the rights and liabilities as set out in
Schedule 21 of the appellant Meter Operator Party as
registered Operator, as Potential Operator or as
Tariff Operator then the proposed change shall come
into effect in accordance with the provisions of this
Agreement; and
(ii) if the determination of the Director is that the
proposed change does have a material adverse effect
upon the rights and liabilities as set out in Schedule
21 of the appellant Meter Operator Party as registered
Operator, as Potential Operator or as Tariff Operator,
the Director may require that the proposed change not
come into effect (in which case such proposed change
shall not come into effect) or require that
modifications be made to the proposed change to obviate
or mitigate such material adverse effect. In the latter
case the Executive Committee and each Party whose
consent is required to the relevant amendment to that
Agreed Procedure or, as the case may be, Code of
Practice, shall take all reasonable steps to implement
any decision of the Director (for which reasons shall
be given) requiring changes to be made to such Agreed
Procedure or Code of Practice with the purposes of
obviating or, where the Director considers appropriate,
mitigating such material adverse effect on such Meter
Operator Party.
2. AMENDMENTS AND MODIFICATIONS
2.1 Obligations: The Parties and Meter Operator Parties
expressly acknowledge and agree that each Meter
Operator Party is bound only to the extent of the
obligations which are expressly set out or referred to
in this Schedule (including those provisions
incorporated herein by reference in paragraph 24) and
not by any other provision of this Agreement. Each
Meter Operator Party agrees to comply with the
provisions of this Schedule (including those provisions
of this Agreement incorporated herein by reference in
paragraph 24). The Parties and Meter Operator Parties
further expressly agree that any Meter Operator Party
(in its capacity as such) shall be conferred only with
such rights in respect of this Agreement as are
expressed to be conferred on it as Operator or Meter
Operator Party pursuant to provisions which are
expressly set out in this Schedule (including those
provisions incorporated herein by reference in
paragraph 24) or are definitions listed in paragraph
1.1.
2.2 Consent:
2.2.1 The consent or agreement of any Meter Operator Party shall
not be required to any modification, abrogation, amendment
or suspension of any provision of this Agreement which is
not expressly set out in this Schedule (and for this purpose
the provisions of this Agreement incorporated herein by
reference in paragraph 24 shall be deemed to be not set out
in this Schedule) or which is not a definition listed in
paragraph 1.1. Each Meter Operator Party hereby irrevocably
waives any rights which it might be considered or held to
have to consent or agree to any such modification,
abrogation, amendment or suspension.
2.2.2 Where under paragraph 2.2.1 a Meter Operator Party would
otherwise have a right to consent or agree to a
modification, abrogation, amendment or suspension of a
provision of this Agreement then that consent or agreement
shall not be required in circumstances where the consent or
agreement of any Party (not being the Settlement System
Administrator, the Grid Operator, the Ancillary Services
Provider or the Pool Funds Administrator) is also not
required under this Agreement to such modification,
abrogation, amendment or suspension.
2.2.3A Meter Operator Party whose consent or approval need
not by virtue of this paragraph 2 be sought or obtained
to any modification, abrogation, amendment or
suspension of any provision of this Agreement may refer
the matter to the Director as if it were a referral
under and in accordance with paragraph 1.4 (and such
that the provisions of that paragraph shall apply
mutatis mutandis to such referral) provided that in
reaching any determination as to whether the proposed
change shall come into effect the Director shall
consider the nature of the changes upon Meter Operator
Parties as a class and shall not have locus standi to
consider any perceived or actual prejudice as an
individual Meter Operator Party.
2.3 Authorisation to amend: Without prejudice to paragraphs
2.1 and 2.2, each Meter Operator Party hereby
unconditionally and irrevocably authorises and
instructs the Chief Executive and each person
authorised for the purpose by the Executive Committee
to sign on its behalf amending agreements to this
Agreement, to execute any agreement which modifies,
abrogates, amends or suspends any provision of this
Agreement in circumstances where such Meter Operator
Party's consent or approval is not required, and
undertakes not to withdraw, qualify or revoke such
authority and instruction at any time.
2.4 Notification: The Executive Committee shall notify each Meter Operator
Party of all amendments, modifications, abrogations and suspensions
which are made to this Agreement for which the consent or agreement of
such Meter Operator Party is not required.
2.5 Further rights: The Executive Committee shall from time
to time consider any representations which Meter
Operator Parties may make to the effect that there are
provisions set out in the Agreement but not in this
Schedule 21 and, accordingly, in respect of which Meter
Operator Parties are not conferred with rights by
virtue of this paragraph 2, which are operating in a
manner which is having a material effect on the rights
and liabilities of such Meter Operator Parties as set
out herein. The Executive Committee shall consider
whether, and the extent to which (if at all), such
provisions should be recommended for incorporation into
this Schedule 21.
PART 2
ADMISSION, RESIGNATION AND REMOVAL
3. ADMISSION
3.1 General: Subject to the following provisions of this paragraph 3, the
Parties and the Meter Operator Parties shall admit as an additional
party for the purposes of this Schedule only, on the terms set out in
paragraph 2, any person (the "New Meter Operator Party") who applies to
be admitted in the capacity of Meter Operator Party.
3.2 Procedure for admission: Admission Application: A New Meter Operator
Party wishing to be admitted as an additional party for the purposes
only of this Schedule, on the terms set out in paragraph 2 hereof,
shall complete a Meter Operator Party Admission Application and shall
deliver it to the Executive Committee together with the fee (which
shall be non-refundable).
3.3 Procedure for admission as Meter Operator Party: Executive Committee
response:
3.3.1 Upon receipt of any Meter Operator Party Admission
Application duly completed the Executive Committee shall
notify all Parties, Meter Operator Parties and the Director
of such receipt and of the name of the New Meter Operator
Party.
3.3.2 Any Pool Member may by written notice to the Executive
Committee, stating the grounds for the objection, object to
the admission of any person in respect of which a Meter
Operator Party Admission Application has been received by
the Executive Committee and where any such notice of
objection is received the Executive Committee:-
(i) in the case of an application which the Executive
Committee considers, taking into account any objection
made pursuant to this paragraph, to be frivolous or
vexatious, may reject such application and such
rejection shall on that application be final and
binding and there shall not be conferred upon the
relevant New Meter Operator Party, by virtue of such
rejection, any further right of appeal to the Director
in respect thereof; or
(ii) in the case of an application which the Executive
Committee does not consider, taking into account any
objection made pursuant to this paragraph, to be
frivolous or vexatious, shall refer the matter to the
Director for determination and the provisions of
paragraph 3.4 shall apply to such determination.
Any objection to be effective must be received by the
Executive Committee within 7 days of notification by the
Executive Committee of the relevant Meter Operator Party
Admission Application in accordance with paragraph 3.3.1
(the "objection period"), and the Executive Committee shall
disregard any notice of objection which is received outside
the prescribed period. Any notice of objection shall be
copied by the Executive Committee upon its receipt to all
Parties, Meter Operator Parties and the Director.
3.3.3 Within 7 days of the expiry of the objection period (the
"consideration period") the Executive Committee shall notify
the New Meter Operator Party and the Director either:-
(a) that the New Meter Operator Party shall be admitted as
a Meter Operator Party, in which event the provisions
of paragraph 3.5 shall apply; or
(b) that the Executive Committee has received an
objection, or objections, to the admission of that New
Meter Operator Party and, on the basis thereof,
considers the application to be frivolous or vexatious
and for that reason is rejecting the application
without further right of appeal; or
(c) that the Executive Committee has received an
objection, or objections, to the admission of that New
Meter Operator Party in accordance with paragraph
3.3.2 and has referred the matter to the Director in
accordance with paragraph 3.4.
If the Executive Committee shall fail so to notify the New
Meter Operator Party and the Director, the New Meter
Operator Party may within 7 days after the expiry of the
consideration period refer the matter to the Director
pursuant to paragraph 3.4, in which event the provisions of
that paragraph shall apply.
3.4 Procedure for application: Reference to the Director:
3.4.1 If:-
(a) a notice of objection or notices of objection to the
admission of the New Meter Operator Party as a Meter
Operator Party within the objection period has (or
have) been received and the Executive Committee has
not notified the New Meter Operator Party that it is
rejecting its application on the basis that those
objections demonstrate that the relevant application
is frivolous or vexatious; or
(b) the Executive Committee shall have failed to notify
the New Meter Operator Party as provided in paragraph
3.3.3 within the consideration period,
the matter may be referred by way of written application of
the New Meter Operator Party, copied to the Executive
Committee, to the Director for determination. The
determination of the Director, which shall be made within 28
days after receipt of the said written application and shall
be to the effect that the New Meter Operator Party should or
should not be admitted as a Meter Operator Party for the
purposes of this Schedule, shall be final and binding for
all purposes. The Director shall publish reasons supporting
his determination.
3.4.2 (a) If the determination is to the effect that the New
Meter Operator Party should be admitted as a Meter
Operator Party, the New Meter Operator Party shall be
admitted and the provisions of paragraph 3.5 shall
apply.
(b) If the determination is to the effect that the New
Meter Operator Party should not be admitted as a Meter
Operator Party, the New Meter Operator Party's
application for admission shall lapse and be of no
effect and the New Meter Operator Party shall not be,
and shall not be entitled to be, admitted as a Meter
Operator Party consequent upon such application (but
without prejudice to any new application it may make
thereafter).
3.5 Admission: If:-
3.5.1 the Executive Committee shall notify the New Meter Operator
Party and the Director as provided in paragraph 3.3.3(a); or
3.5.2 the New Meter Operator Party is to be admitted as a Meter
Operator Party pursuant to paragraph 3.4,
the Executive Committee shall forthwith prepare or cause to be prepared
a Meter Operator Party Accession Agreement. Subject to the Executive
Committee making all notifications and filings (if any) required of it
for regulatory purposes and obtaining all regulatory consents and
approvals (if any) required to be obtained by it, the Executive
Committee shall instruct the Chief Executive or another person
authorised by the Executive Committee for the purpose to prepare a
Meter Operator Party Accession Agreement and to sign and deliver the
Meter Operator Party Accession Agreement on behalf of all Parties and
Meter Operator Parties other than the New Meter Operator Party and the
New Meter Operator Party shall also execute and deliver the Meter
Operator Party Accession Agreement and, on and subject to the terms and
conditions of the Meter Operator Party Accession Agreement, the New
Meter Operator Party shall become a Meter Operator Party on the terms
set out in paragraph 2, for the purposes of this Schedule, with effect
from the date specified in such Meter Operator Party Accession
Agreement (and, if no such date is so specified, the date of such Meter
Operator Party Accession Agreement). The New Meter Operator Party shall
pay all costs and expenses associated with the preparation, execution
and delivery of its Meter Operator Party Accession Agreement. Each
Party and Meter Operator Party hereby authorises and instructs the
Chief Executive and each person authorised for the purpose by the
Executive Committee to sign on its behalf Meter Operator Party
Accession Agreements and undertakes not to withdraw, qualify or revoke
such authority and instruction at any time. The Executive Committee
shall promptly notify all Parties and Meter Operator Parties and the
Director of the execution and delivery of each Meter Operator Party
Accession Agreement.
3.6 Additional Agreements: Upon and as a condition of admission as a Meter
Operator Party, a New Meter Operator Party shall execute and deliver
such further agreements and documents and shall do all such other acts,
matters and things as the Executive Committee may reasonably require.
3.7 Application fees: All fees received by the Executive Committee in
respect of any application by a New Meter Operator Party to become a
Meter Operator Party shall be used to defray the costs and expenses of
the Executive Committee and shall be paid to such account as the
Executive Committee may direct. The application fee shall be (pound)250
or such other amount as the Executive Committee may, with the prior
approval of the Director, from time to time prescribe.
3.8 Acknowledgement that provisions not exhaustive of being Operator: The
compliance by any person with the provisions of this paragraph 3 with
regard to its admission as a Meter Operator Party shall not of itself mean
that all things have been done and agreements or arrangements have been
entered into with other Parties and persons such that the duly admitted
Meter Operator Party is entitled or enabled to comply as an operational,
physical or legal matter with its obligations, or to enjoy its rights, as
an Operator under this Schedule and the provisions of this Schedule shall
always be without prejudice to the rights and obligations of such Meter
Operator Party under any other agreement or arrangement with such other
Parties or persons.
3.9 Compliance: Each Meter Operator Party shall procure that for so long as
it is a Meter Operator Party it shall at all times satisfy or otherwise
comply with the admission conditions set out in its Meter Operator
Party Admission Application applicable to it (and/or such further or
other conditions as the Executive Committee may from time to time
reasonably specify) and upon request from time to time shall promptly
provide the Executive Committee with evidence reasonably satisfactory
to the Executive Committee of such satisfaction and compliance.
3.10 Change of capacities:
3.10.1 Any Meter Operator Party admitted as an additional party
pursuant to this paragraph 3 may apply, whether in
substitution for or in addition to being a Meter Operator
Party, to become a Party to this Agreement in accordance
with Clause 3 of this Agreement and, if appropriate, a Pool
Member in accordance with Clause 8 of this Agreement. Such
Meter Operator Party shall only be entitled to become a
Party and, as the case may be, Pool Member in accordance
with those provisions of this Agreement.
3.10.2 Subject to the transitional arrangements set out in
paragraph 23, any Party to this Agreement may, upon
application to the Executive Committee and satisfaction of
such conditions (if any) as the Executive Committee may
reasonably require, whether in substitution for or in
addition to being a Party, become a Meter Operator Party for
the purposes of and on the terms set out in this Schedule.
4. REGISTRATION OF OPERATORS
4.1 Registration: Subject to Clause 60.4, the identity of the Operator for
each Metering System which the Settlement System Administrator shall
take into account for the purposes of Settlement and which shall be the
Operator for all purposes of this Schedule shall be as notified to the
Settlement System Administrator in accordance with this Schedule and as
recorded by it, for the time being and from time to time, in the
Register.
4.2 Who can be Operator: The operator of any Metering System proposed to be
registered with the Settlement System Administrator or the new operator
of any Metering System already so registered shall be either:-
4.2.1 the Meter Operator Party specified as such in a notice
served by it upon the Settlement System Administrator in
accordance with the relevant Agreed Procedure and which has
acknowledged its appointment therein; or
4.2.2 where no Meter Operator Party is specified pursuant to
paragraph 4.2.1 or such Meter Operator Party has not
acknowledged its appointment, the Registrant deemed to be
Operator pursuant to Clause 60.4.4 in accordance with the
provisions thereof.
4.3 Consents: Subject to Clause 60.4.9, no person shall be the Operator of a
Metering System without the prior written consent of:-
(i) the person (if not the Operator or Registrant in respect thereof)
which is at that time the Equipment Owner;
(ii) in the case of a Metering System to be operated in respect of supplies
to a Second Tier Customer, and if different from the Equipment Owner,
that Second Tier Customer; and
(iii)in the case of a Metering System to be operated in respect of
supplies from a Non-Pooled Generator, and if different from the
Equipment Owner, that Non-Pooled Generator.
The Registrant in respect of that Metering System shall provide
evidence of such consent to the Executive Committee and to the
Settlement System Administrator at the time of the registration of that
Meter Operator Party as Operator in respect of such Metering System.
The Settlement System Administrator shall not register as an Operator
in respect of such Metering System any person in respect of which
evidence of consent of the Equipment Owner, and where applicable and
where different, the relevant Second Tier Customer or Non-Pooled
Generator, is required but has not been so provided. Where no such
evidence or insufficient evidence is provided the Settlement System
Administrator shall notify the relevant Meter Operator Party
accordingly.
4.4 Power to prescribe new registration conditions:
4.4.1The Executive Committee shall have the power to prescribe, from
time to time, such further conditions to be imposed upon the
registration of any Meter Operator Party as an Operator under
this Schedule as it shall consider appropriate with the consent
of the Meter Operator Parties. In the case of a Meter Operator
Party, such consent shall not be unreasonably withheld or delayed
and notification of such consent or refusal to consent shall be
made to the Executive Committee within 7 days of its consent
being requested. If any Meter Operator Party refuses to consent
or does not consent within the prescribed 7 day period, the
Director shall determine whether such consent was unreasonably
withheld.
4.4.2 The conditions to be imposed pursuant to paragraph 4.4.1
shall be as specified from time to time in an Agreed
Procedure and each Operator shall be required, upon the
bringing into effect of new or revised conditions, to
demonstrate to the satisfaction of the Executive Committee
in accordance with the provisions of such Agreed Procedure,
the ability to comply with the standards laid down therein.
4.4.3 Any Operator which is not able to demonstrate compliance
with such revised standards in accordance with paragraph
4.4.2 shall at the time specified in that Agreed Procedure
cease to be a Meter Operator Party for the purposes hereof,
but such cessation shall be without prejudice to any right
to make a future application to become a Meter Operator
Party or Operator in accordance with the provisions of this
Schedule.
5. RESIGNATION
5.1 Resignation as Meter Operator Party: Subject as provided in paragraph
5.2:-
5.1.1 a Meter Operator Party shall be entitled at any time to
resign as a Meter Operator Party by delivering a Meter
Operator Party Resignation Notice to the Secretary; and
5.1.2 such resignation shall take effect 28 days after receipt of
the Meter Operator Party Resignation Notice by the
Secretary.
Promptly after receipt of a duly completed Meter Operator Party
Resignation Notice from a Meter Operator Party, the Secretary shall
notify (for information only) all of the other Parties, Meter Operator
Parties, the Executive Committee and the Director of such receipt and
of the name of the Meter Operator Party wishing to resign.
5.2 Restrictions on resignation: A Meter Operator Party may not resign as a
Meter Operator Party (and any Meter Operator Party Resignation Notice
delivered pursuant to paragraph 5.1.1 shall lapse and be of no effect)
unless:-
(i) as at the date its resignation would otherwise become
effective all sums due from such Meter Operator Party to the
Executive Committee or any other Party or Meter Operator
Party under this Agreement or any agreement entered into
pursuant to and in accordance with this Agreement (whether
by or on behalf of such Meter Operator Party) and notified
for the purposes of this paragraph 5.2 by the Executive
Committee to such Meter Operator Party prior to the date of
its resignation have been paid in full; and
(ii) the Meter Operator Party is not registered as the Operator
in respect of any Metering System.
5.3 Resignation as an Operator:
5.3.1 An Operator shall be entitled at any time to resign as
Operator of a Metering System by service of a duly completed
notice in the form prescribed by the relevant Agreed
Procedure upon the Settlement System Administrator.
5.3.2 Such resignation shall take effect (unless otherwise agreed
with the Settlement System Administrator) on the date
specified therein which shall be no earlier than the date
specified in the relevant Agreed Procedure.
5.3.3The Settlement System Administrator shall notify the relevant
Registrant and, where applicable, Host PES of receipt by it of a
notice pursuant to this paragraph 5.3 within one working day
following such receipt.
5.4 Release as a Meter Operator Party: Without prejudice to Clause 66.7 as
incorporated into this Schedule by paragraph 24 hereof and its accrued
rights and liabilities and its rights and liabilities which may accrue
in relation to the period during which it was a Meter Operator Party
under this Schedule pursuant to paragraph 2 hereof or to any agreement
referred to in paragraph 5.2, upon a Meter Operator Party's resignation
becoming effective in accordance with paragraph 5.1:-
5.4.1 such Meter Operator Party shall be automatically released
and discharged from all its obligations and liabilities in
its capacity as Meter Operator Party under this Schedule and
any agreement referred to in paragraph 5.2; and
5.4.2 each of the other Parties and Meter Operator Parties shall
be automatically released and discharged from its
obligations and liabilities to such Meter Operator Party in
its capacity as Meter Operator Party under this Schedule and
any agreement referred to in paragraph 5.2.
Each Meter Operator Party shall promptly at its own cost and expense
execute and deliver all agreements and other documentation and do all
such other acts, matters and things as may be necessary to confirm such
cessation, release and discharge.
6. REMOVAL AND CESSATION
6.1 Removal as Operator by Registrant: Without prejudice to any rights under
any other agreement between any Operator and any other person (which the
Settlement System Administrator shall not be obliged to take into account
or acknowledge for the purposes of this Agreement) and without prejudice to
its accrued rights and liabilities and its rights and liabilities which may
accrue in relation to the period during which it was Operator pursuant to
this Schedule, the Registrant of any Metering System may remove the
Operator of such Metering System upon service of a duly completed notice in
the form prescribed by the relevant Agreed Procedure to be served upon the
Settlement System Administrator (with a copy to be served upon the relevant
Second Tier Customer (if any) or ERS First Tier Customer (if any) or
Non-Pooled Generator (if any)) and such notice to take effect (unless
otherwise agreed with the Settlement System Administrator) on the date
specified therein which shall be no earlier than the date specified in the
relevant Agreed Procedure. The Settlement System Administrator shall notify
the relevant Operator and, where applicable, Host PES of the receipt by it
of a notice pursuant to this paragraph 6.1 following such receipt.
6.2 Removal as Operator or Meter Operator Party for cause: Subject:-
6.2.1 to good cause for the removal of a Meter Operator Party as
(i) Operator in respect of one or more, but not all,
Metering Systems in respect of which it is the Operator, or
(ii) as Meter Operator Party in respect of all, but not
some, Metering Systems in respect of which it is the
Operator, having been demonstrated to the satisfaction of
the Executive Committee; and
6.2.2 as provided in paragraphs 6.3 and 6.4,
an Operator (where removal is in respect of one or more, but
not all, such Metering Systems) or, as the case may be, a
Meter Operator Party (where removal is in respect of all
such Metering Systems), may at any time be removed by:-
(a) resolution of the Executive Committee passed by a
majority of not less than 75% of the total votes of
all Committee Members which may be exercised whether
or not any such Committee Member is present in
accordance with the provisions of this Agreement; and
(b) the giving by the Executive Committee to the Operator
or, as the case may be, Meter Operator Party after
such resolution has been passed or deemed effective
(which the Executive Committee shall promptly do) of
not less than 28 days' notice in writing of such
removal.
6.3 Good cause for removal: Good cause for the purposes of paragraph 6.2.1 may
include the following:-
6.3.1 the failure by the Operator or Meter Operator Party as
Operator in any persistent, material respect or in any
single, major respect to perform or comply with any of the
obligations expressed to be assumed by it under this
Schedule and such default (if capable of remedy) is not
remedied within a reasonable period of time after the
Executive Committee has given notice to that Operator or, as
the case may be, Meter Operator Party of the occurrence
thereof and requiring the same to be remedied; and
6.3.2in the case of removal as a Meter Operator Party, where a Meter
Operator Party:-
(a) is unable to pay its debts (within the meaning of
section 123(1) or (2) of the Insolvency Act 1986) or
has any voluntary agreement proposed in relation to it
under section 1 of that Act or enters into any scheme
of arrangement (other than for the purpose of
reconstruction or amalgamation upon terms and within
such period as may previously have been approved in
writing by the Executive Committee);
(b) has a receiver (which expression shall include an
administrative receiver within the meaning of section
29 of the Insolvency Act 1986) of the whole or any
material part of its assets or undertaking appointed;
(c) has an administration order under section 8 of the
Insolvency Act 1986 made in relation to it;
(d) passes any resolution for winding-up other than a
resolution previously approved in writing by the
Executive Committee; or
(e) becomes subject to an order by the High Court for
winding-up.
For the purposes of paragraph (a) above the Meter Operator
Party shall not be deemed to be unable to pay its debts if
any such demand as is mentioned in the said section is being
contested in good faith by the Meter Operator Party with
recourse to all appropriate measures and procedures.
For the avoidance of doubt, the Parties and Meter Operator Parties
hereby acknowledge and agree that a resolution of the Executive
Committee to remove the Operator as Operator or a Meter Operator Party
as Meter Operator Party shall not, of itself, constitute good cause.
6.4 Referral to the Director: An Operator or, as the case may be, a Meter
Operator Party may in writing within the 28 day period referred to in
paragraph 6.2(b) refer a decision of the Executive Committee to remove
it for cause pursuant to paragraph 6.2 to the Director. Where such
referral is made in accordance with this paragraph 6.4, the removal of
such Meter Operator Party as Operator or, as the case may be, Meter
Operator Party for cause shall not become effective until such time as
the Director determines, in accordance with paragraph 6.5, that good
cause exists for such removal.
6.5 Determination by Director: The Director, upon any referral being made
pursuant to paragraph 6.4, shall determine whether there is good cause
within the meaning of this paragraph 6 for the removal of such Meter
Operator Party as Operator or, as the case may be, as Meter Operator Party,
within 28 days of the receipt of the written referral of the decision of
the Executive Committee. Any decision of the Director that there is, or is
not, good cause for removal shall be final and binding on the Parties and
Meter Operator Parties. Where the Director determines that there is not
good cause for the removal of a Meter Operator Party, the relevant decision
of the Executive Committee shall lapse and cease to be effective and such
Meter Operator Party shall not be removed as Operator or, as the case may
be, Meter Operator Party by virtue of the passing of that resolution.
6.6 Notification of removal: Within 7 days of any Operator or Meter
Operator Party being removed for cause in accordance with the
provisions of this paragraph 6, the Secretary shall notify all Parties,
Meter Operator Parties, relevant Second Tier Customers, relevant ERS
First Tier Customers, relevant Non-Pooled Generators and the Director
in accordance with the provisions of this Agreement of the identity of
the relevant Operator or, as the case may be, Meter Operator Party and
of the fact of its removal.
6.7 Right to representation: Any Party or Meter Operator Party against whom
the Executive Committee is considering exercising powers pursuant to
this paragraph 6 shall have the right to representation at any meeting
of the Executive Committee which considers the exercise of such powers.
6.8 Cessation as Operator: An Operator of any Metering System shall cease to be
the Operator therefor when the Plant or Apparatus in respect of such
Metering Equipment ceases to be connected at the relevant Site.
6.9 Cessation as Meter Operator Party: Without prejudice to any rights under
any other agreement between an Operator and any other person (which the
Settlement System Administrator shall not be obliged to take into account
or acknowledge for the purposes of this Agreement) and without prejudice to
its accrued rights and liabilities and its rights and liabilities which may
accrue in relation to the period during which it was a Meter Operator Party
under this Schedule, an Operator shall cease to be a Meter Operator Party
where it has not been registered by the Settlement System Administrator
(save in the case of manifest error or bad faith on the part of the
Settlement System Administrator) as an Operator in respect of any Metering
System registered with the Settlement System Administrator for any
consecutive period of fifteen months.
6.10 Termination of Rights and Obligations under this Agreement: A Meter
Operator Party shall only cease to be party to this Agreement in the
capacity as a Meter Operator Party in the circumstances and to the
extent specified in either paragraph 4, 5 or 6.
6.11 Rights and liabilities as Party: Where any Party which is also a Meter
Operator Party resigns as, is removed as, or ceases to be, a Meter
Operator Party for the purposes of, and in accordance with, this
Schedule, such resignation, removal or cessation shall be without
prejudice to all past, present and future accrued and accruing rights
and liabilities of that Party as Party in any capacity whatsoever other
than as Meter Operator Party.
6.12 Paragraph exhaustive: The Parties and Meter Operator Parties agree that
the foregoing provisions of this paragraph 6, when read with the
provisions referred to in this paragraph, are exhaustive of cessation
as a Meter Operator Party and of cessation of rights and liabilities as
a Meter Operator Party.
PART 3
METER OPERATOR'S RESPONSIBILITIES
7. OBLIGATION TO ENSURE COMPLIANT METERING EQUIPMENT
7.1 General Obligation and Commercial Boundary:
7.1.1 There must always be one and, at any point in time, no more
than one Operator for each Metering System which is
registered with the Settlement System Administrator.
7.1.2 All Metering Systems at the site of a Non-Pooled Generator,
which are part of the same Metering Equipment, must have the
same Operator.
7.1.3Each Operator shall ensure there is installed a Metering System
complying with the provisions of this Schedule and Part XV of
this Agreement which meets the required levels of accuracy at the
commercial boundary at each Site for which it is the Operator and
which is as close as reasonably practicable to that commercial
boundary taking into account relevant financial considerations.
The Parties and Meter Operator Parties acknowledge and agree that
Metering Equipment at Power Stations either existing or under
construction at the Effective Date might not be situated at the
commercial boundary. In such cases, loss adjustment factors may
be applied after the Effective Date subject to it being
demonstrated to the reasonable satisfaction of the Settlement
System Administrator that such loss adjustment factors have been
correctly derived.
7.1.4To the extent that the required levels of accuracy referred to
in paragraph 7.1.3 depend upon associated current and voltage
transformers which are not in the ownership or control of the
relevant Operator, the relevant Equipment Owner agrees to take
reasonable steps to assist the Operator in complying with its
obligations under paragraph 7.1.3 by the maintenance and repair
of such current and voltage transformers in accordance with the
provisions of this Schedule provided that this paragraph 7.1.4
shall be without prejudice to any right to charge for the same
and provided further that an Equipment Owner shall not be
required by this paragraph 7.1.4 to take steps which would cause
it to be in breach of its obligations under its Licence, its
Nuclear Site Licence (as defined in paragraph 21.9(a)), the Grid
Code or any Distribution Code.
7.2 Description of Metering Equipment:
7.2.1 Metering Equipment and its component parts shall comply, as
a minimum, with the requirements referred to or set out in
any relevant Code of Practice or shall be the subject of,
and comply with, a dispensation agreed in accordance with
paragraph 14.
7.2.2 Metering Equipment comprising a Metering System shall use
such communication protocols selected, with the approval of
the Settlement System Administrator, as appropriate for that
Metering Equipment from a list of communication protocols
approved and maintained from time to time by the Settlement
System Administrator.
7.3 Accuracy of Metering Equipment:
7.3.1 The Metering Equipment comprising any Metering System shall
be accurate within the prescribed limits for such Metering
Equipment referred to or set out in the relevant Code of
Practice except only in the case where such Metering
Equipment is the subject of, and complies with, a
dispensation relevant to those prescribed limits agreed in
accordance with paragraph 14.
7.3.2 The accuracy limits referred to in the relevant Code of
Practice shall be applied after adjustments have been made
to Metering Equipment to compensate for any errors due to
measuring transformers and connections thereto. Beyond the
ranges specified in the relevant Code of Practice and power
factors other than unity or zero (as the case may be) limits
of accuracy will depend on the characteristics of the
individual meters and measuring transformers specified for
the Metering Equipment. Such levels of accuracy will, in the
event of any uncertainty or dispute, be specified by the
Executive Committee.
7.4 Calibration of Metering Equipment: Each Operator shall ensure
that all Metering Equipment which is registered with the
Settlement System Administrator pursuant to this Agreement and
for which it is Operator pursuant to this Schedule shall be
calibrated in order to meet the accuracy requirements referred to
in paragraph 7.3.1 and otherwise in accordance with the relevant
Code of Practice or, where appropriate, any relevant dispensation
agreed in accordance with paragraph 14. Subject to paragraph 21,
the Settlement System Administrator and the Pool Auditor shall be
granted access to all such Metering Equipment and any other Plant
or Apparatus on any Site in order to inspect the basis of any
adjustments made to Metering Equipment.
8. MAINTENANCE OF METERING EQUIPMENT
8.1 Proper order: Each Operator shall at its own cost and expense (but
without prejudice to its right to charge any other person for such
service pursuant to another agreement or arrangement) keep in good
working order, repair and condition all Metering Equipment in respect
of which it is the Operator to the extent necessary to allow the
correct registration, recording and transmission of the requisite
details of the quantity of Active Energy and/or Reactive Energy
measured by the relevant Meter.
8.2 Inspection and Testing:
8.2.1No less frequently than such period as may be specified in the
relevant Code of Practice each Operator shall carry out a routine
test of the accuracy of all Metering Equipment in respect of
which it is the Operator. The Operator shall also carry out a
test of the accuracy of all Metering Equipment in respect of
which it is the Operator and which replaces defective or
inaccurate Metering Equipment as soon as is reasonably
practicable after its installation. Such Operator will give the
Settlement System Administrator and the Registrant at least 15
days' prior written notice of the date, time, place and nature of
every such test and the Settlement System Administrator and Host
PES and the Registrant shall have the right to attend such test
should it so require. Any such test as envisaged in this
paragraph 8.2.1 shall comply with the relevant Code of Practice.
8.2.2 If either:-
(a) the Settlement System Administrator has reason to
believe that the Metering Equipment which an Operator
is required to maintain for the purposes of this
Schedule is not performing within the prescribed
limits of accuracy referred to in paragraph 7.3.1; or
(b) such Operator or any other Party or Meter Operator
Party has reason to believe there is any such failure
to so perform,
then, in the case of (b), such Operator, such other Party or
such Meter Operator Party shall notify the Settlement System
Administrator, the Registrant of the relevant Metering
System and the Host PES (if any) and, in any case, the
Settlement System Administrator:-
(i) shall (if so requested by any Party or Meter Operator
Party) and (in any other case) may, without giving
notice to the relevant Operator or Registrant, inspect
such Metering Equipment and make such tests as the
Settlement System Administrator shall deem necessary
to determine its accuracy; or
(ii) in any other circumstances require the relevant
Operator promptly to test the accuracy of the same but
in any event within 24 hours of receiving notification
of such requirement pursuant to this paragraph 8.2.2,
whereupon the relevant Operator shall carry out such
test. Such test shall comply with the relevant Code of
Practice and shall take place in the presence of the
Settlement System Administrator, if it so requires.
Further, if an Operator has reason to believe that the
Metering Equipment in respect of which it is the Operator is
incorrectly recording data for any reason, it shall notify
the Settlement System Administrator, the Registrant in
respect of the relevant Metering System and the Host PES (if
any).
8.2.3 Recovery of costs for non-routine testing (1): Subject to
paragraph 8.2.4, the costs of any such test referred to in
this paragraph 8.2 shall be borne by the Operator
responsible for the maintenance of the relevant Metering
Equipment (but without prejudice to its right to charge any
other person for such service pursuant to another agreement
or arrangement), save that the Settlement System
Administrator shall bear the costs of its nominee's
attendance thereat (subject to its right to recover the same
through its charges).
8.2.4Recovery of costs for non-routine testing (2): Where any
Metering Equipment passes all inspections and tests required
pursuant to paragraph 8.2.2 or the test is in respect of Metering
Equipment where the Operator is the deemed Operator pursuant to
Clause 60.4.4, the costs of such inspections and tests shall, in
the case of paragraph (a) of that paragraph, be borne by the
Settlement System Administrator (subject to its right to recover
the same through its charges) and, in the case of paragraph
8.2.2(i) where a test is required by another Party or Meter
Operator Party, be borne by such other Party or Meter Operator
Party which shall reimburse the relevant Operator its costs on
demand.
8.3 Sealing: Metering Equipment shall be as secure as is practicable
in all the circumstances and for this purpose:-
(a) all Metering Equipment shall comply with the relevant Agreed
Procedure; and
(b) the Executive Committee and the Settlement System Administrator
shall regularly review Agreed Procedures for security
arrangements in relation to Metering Equipment.
8.4 Defective Metering Equipment: If at any time any Metering Equipment or any
part thereof is destroyed or damaged or otherwise ceases to function, or is
found to be outside the prescribed limits of accuracy referred to in
paragraph 7.3.1, the Operator therefor shall, subject to compliance with
its obligations under paragraph 8.3, promptly adjust, renew or repair the
same or replace any defective component so as to ensure that the relevant
Metering Equipment is back in service and operating within the prescribed
limits of accuracy as quickly as is reasonably practicable in all the
circumstances.
9. MAINTENANCE OF RECORDS AND PROVISION OF INFORMATION
9.1 Information:
9.1.1 An Operator shall inform the Settlement System Administrator
of all relevant information relating to the Metering
Equipment in respect of which it is the Operator, including
any new or substituted Metering Equipment, and as may be
required by the relevant Agreed Procedure.
9.1.2 All Meter Operator Parties shall give to the Settlement
System Administrator all such information regarding Metering
Equipment as the Settlement System Administrator shall
reasonably require for the proper functioning of the
Settlement System including information regarding the dates
and time periods for installation of new Metering Equipment
and the dates and periods when Metering Equipment is out of
service.
9.1.3 All Meter Operator Parties shall give to the Pool Auditor
all such information regarding Metering Equipment as the
Pool Auditor shall reasonably require for the purposes of
carrying out its functions under Part IX of this Agreement
including information regarding the dates and time periods
for installation of new Metering Equipment and the dates and
periods when Metering Equipment is out of service and a copy
of any record maintained in accordance with paragraph 9.2.
9.2 Records: Each Operator shall maintain a record in relation to each Metering
System for which it is the Operator detailing all relevant matters as may
be required by the relevant Code of Practice relating to the calibration of
the Metering Equipment comprising each such Metering System including the
dates and results of any tests, readings, adjustments or inspections
carried out and the dates on which any seal was applied or broken, the
reason for any seal being broken and the persons attending any such tests,
readings, inspections or sealings. Such records shall also include any
other details as may be reasonably required by the Settlement System
Administrator. Each Operator shall pass such records or copies of the same
to its successor as Operator in relation to any Metering Equipment. Any
such records shall be complete and accurate and retained for the life of
the relevant item of Metering Equipment. The Registrant in respect of any
Metering Equipment shall be entitled to receive copies of all such records
free of charge.
9.3 A Meter Operator Party shall permit the Pool Auditor unrestricted
access to Metering Equipment forming part of any Metering System in
respect of which it is Operator and all data used, information held and
records kept by it or its agents in operating that Metering Equipment
and shall make available members of its staff to explain the operation
of that Metering Equipment and such other issues as the Pool Auditor
considers relevant.
PART 4
RIGHTS AND RESPONSIBILITIES RELATING TO THE SETTLEMENT SYSTEM ADMINISTRATOR
10. INSPECTIONS AND READINGS
10.1 Inspections: The Settlement System Administrator shall procure that all
Metering Equipment comprising any Metering System which is registered
with it for the purposes of the Settlement System is inspected and read
by it or on its behalf not less than once in every three months for
general and reconciliation purposes and shall give the Registrant and
Operator notice thereof in accordance with the relevant Agreed
Procedure.
10.2 Written reports: The Settlement System Administrator and the Operator
shall keep written reports of all such inspections and readings as are
referred to in paragraph 10.1 in accordance with sub-section 6.6 of
Schedule 4 and the Settlement System Administrator shall provide copies
in accordance with the relevant Agreed Procedure of such written
reports to each Registrant whose Consumer Metered Demand determined in
accordance with the Pool Rules is calculated by the Settlement System
Administrator using data from such Metering System.
11. DATA COLLECTION
11.1 Collection, Retrieval, Validation and Estimation of Data: The Settlement
System Administrator will notify the relevant Registrant, Operator and Host
PES where, as determined by the relevant Agreed Procedure, it has
reasonable grounds to believe or has established that data required from
any Metering Equipment for the functioning of the Settlement System in
accordance with this Agreement is incomplete, inaccurate or has not been
received, such notice to include details of the relevant Metering Equipment
and data which the Settlement System Administrator believes or has
established is incomplete, inaccurate or has not been received. The
Settlement System Administrator shall investigate and remedy the defect in
accordance with the relevant Agreed Procedure taking into account the
following priorities in the following order:-
(a) the need to obtain accurate data;
(b) the need to apply verification procedures;
(c) the need to produce edited or substitute data where it is incorrect
or unavailable.
11.2 Corrected, completed or received data: Once the Settlement System
Administrator has remedied the defect identified in accordance with
paragraph 11.1, it will notify the relevant Registrant, Operator and
Host PES:-
(a) in the case of data which it has established was inaccurate, of
the validated data; and
(b) in the case of data which it has established is incomplete
or which has not been received, of the edited or substitute
data,
in each case established according to the relevant Agreed Procedure.
12. POLICING BY THE SETTLEMENT SYSTEM ADMINISTRATOR
Policing: The Settlement System Administrator shall make or shall
procure arrangements for spot visits to metering sites by suitably
qualified inspectors in order to monitor compliance by Registrants and
Operators of their obligations under Part XV of this Agreement and this
Schedule, the appropriate Code of Practice and the Agreed Procedures.
The sites chosen for, and the conduct of, such policing shall be
determined by the Settlement System Administrator. The extent of
policing shall be in accordance with instructions given to the
Settlement System Administrator from time to time by the Executive
Committee in accordance with the SSA Arrangements.
PART 5
CODES OF PRACTICE AND DISPENSATIONS
13. CODES OF PRACTICE
13.1 Relevant Code of Practice: Subject to paragraph 13.2 and subject to the
transitional arrangements described in paragraph 13.4, the relevant Code of
Practice in respect of Metering Equipment shall be determined by reference
to the version of the Code of Practice which is expressed to be applicable
to that Metering Equipment at the time that the Metering System comprised
therein is registered with the Settlement System Administrator for the
first time, and such Metering Equipment shall only be required, save as
provided in paragraph 13.2, to comply with such Code of Practice, and not
with any Code of Practice which in any respect later amends, modifies or
supersedes such Code of Practice, and references to the relevant Code of
Practice in Part XV of this Agreement and this Schedule shall be construed
accordingly.
13.2 Saving: Notwithstanding the provisions of paragraph 13.1:
(a) without prejudice to sub-paragraphs (b) and (c) below, FMS
Metering Equipment which is installed, or in the course of
being installed, on the FMS Date, shall only be required to
comply with the applicable FMS Code of Practice with which
it would have been required to comply were this paragraph 13
not in effect;
(b) where any material change is made to the Metering Equipment
comprising a Metering System, details of the changes made shall
be given immediately by the Operator in respect of that Metering
System to the Settlement System Administrator (with a copy to the
Registrant of that Metering System) who shall note the same on
the Register pursuant to Clause 60.5. The noting of that change
on the Register shall be deemed (but no other entry made on the
Register shall be deemed) to constitute a registration of that
Metering System comprised in that Metering Equipment for the
purposes of paragraph 13.1, and the Code of Practice current at
the time of that deemed new registration shall, from that time,
be the relevant Code of Practice in respect of that Metering
Equipment;
(c) in sub-paragraph (b) above, the term "material change" shall
mean a change to the Metering Equipment other than:-
(i) a change by way of repair, modification or replacement
of any component which is not in the judgement of the
Operator, acting as a reasonable Operator in all the
circumstances, a substantial part of the Metering
Equipment (a "Substantial Part"); and
(ii) a change to another part or other parts of the
Metering Equipment, each of which is not of itself
(and where taken together with other such changes,
these changes together are not) a Substantial Part
(determined as in (i) above) of the Metering
Equipment, necessitated in the judgement of the
Operator, acting as a reasonable Operator in all the
circumstances, by any change under (i) above,
in each case even where an enhanced or equivalent component
is used for the repair, modification or replacement rather
than an identical component;
(d) Metering Equipment shall at all times comply with the latest
version of the Code(s) of Practice which contains the
requirements for the calibration, testing and commissioning
of Metering Equipment; and
(e) in relation to Metering Equipment which is associated with
supplies to an ERS First Tier Customer, the relevant Code of
Practice shall apply as amended by any modifications made
(after the time that the relevant Metering System is
registered with the Settlement System Administrator for the
first time) solely in connection with the inclusion of ERS
First Tier Customers in the definition of Site.
13.3 Record of Codes of Practice: The Executive Committee shall record in
the Synopsis of Metering Codes each Code of Practice and the date at
which that Code becomes effective as the relevant Code of Practice in
respect of Metering Equipment comprising a Metering System registered
or, in accordance with paragraph 13.2(b), re-registered at that date or
thereafter.
13.4 FMS Codes of Practice: On or after the FMS Trading Date and in relation
to any period on or after this date any relevant Code of Practice for
the purposes of this Agreement shall be an FMS Code of Practice.
14. DISPENSATIONS
14.1 Dispensations:
(a) If for financial reasons or reasons of practicality a Metering
System or Metering Equipment does not comply with some or all of
the requirements of the relevant Code of Practice or the
requirements in relation to the commercial boundary of paragraph
7.1.2, the Registrant or potential Registrant of such Metering
System or, as the case may be, Operator or Potential Operator of
such Metering Equipment with the consent of such Registrant or,
in the case of Potential Operators only, such potential
Registrant, may make an application to the Executive Committee
for a dispensation from such requirements. The Executive
Committee shall consider and agree, on such conditions (if any)
as it shall deem fit, or dismiss such application in accordance
with the relevant Agreed Procedure and this paragraph 14.
(b) The Executive Committee shall have the right to agree from
time to time, in accordance with the relevant Agreed
Procedure, dispensations from the requirements referred to
in sub-paragraph (a), on such conditions (if any) as it
shall deem fit, attaching generally to any item of Metering
Equipment ("Generic Dispensations"). Generic Dispensations
may be agreed upon the application of a Party or Meter
Operator Party or be initiated by the Executive Committee at
its discretion.
(c) Before agreeing any dispensation (including any Generic
Dispensation), the Executive Committee shall be obliged to
seek and to obtain:-
(i) in the case of a dispensation from a Code of Practice,
the approval and agreement of those Parties whose
approval and agreement is required in accordance with
the definition of Code of Practice in respect of an
amendment to or substitution of the Code(s) of
Practice from which a dispensation is sought;
(ii) the prior written consent (not to be unreasonably
withheld or delayed) of the Settlement System
Administrator where applicable in accordance with
Clause 6.3;
(iii) in the case of a dispensation from the requirements of
paragraph 7.1.2 relating to the commercial boundary,
the prior written consent (not to be unreasonably
withheld or delayed) of the Grid Operator where
applicable in accordance with Clause 6.5; and
(iv) in the case of a dispensation from the requirements of
paragraph 7.1.2 relating to the commercial boundary,
the prior written consent (not to be unreasonably
withheld or delayed) of the Ancillary Services
Provider where applicable in accordance with Clause
6.6.
Where, in accordance with (i) above, the amendment of the
relevant Code of Practice would require the approval of the
Suppliers in separate general meeting such approval shall be
deemed to be given by a resolution of the Executive
Committee to agree the relevant dispensation, save where any
representative of any Supplier elects, upon that resolution,
to refer the matter to a separate general meeting of
Suppliers in which case, such meeting shall be convened and
held in accordance with the provisions of Clause 13.2, and
shall determine by resolution whether or not the approval
and agreement of Suppliers to that dispensation be given in
accordance with this paragraph 14.1.
14.2 Record of dispensations: The Executive Committee shall maintain, in
accordance with the relevant Agreed Procedure, an up-to-date record of
all dispensations agreed pursuant to this paragraph 14. The Executive
Committee shall provide a duplicate copy of any such record to the
Settlement System Administrator and shall provide the Settlement System
Administrator with details of all amendments made to such record as
soon as reasonably possible after the making of such amendment.
14.3 Existing dispensations: The Parties acknowledge that, prior to
1st April, 1993, dispensations (within the meaning of this
paragraph 14) were agreed by the Executive Committee as if this
paragraph 14 were at such time in full force and effect and agree
that the record identified as such as at 1st April, 1993 is the
definitive list of such dispensations. The Parties further agree
that such dispensations shall be deemed, with effect from the
date at which they were agreed, to have been effectively agreed
in accordance with the provisions of this paragraph 14 (as
formerly incorporated into this Agreement as Clause 60.10) as in
force as at 1st April, 1993. This paragraph 14 shall be without
prejudice to any claim an Operator or person acting as Operator:-
(i) may have as at 31st March, 1993 against a Supplier arising
out of any agreement between such Operator (or such person
acting as Operator) and such Supplier or out of any
representation; or
(ii) may have against a Supplier arising out of facts and
circumstances in existence prior to or as at 31st March,
1993,
which relates to the installation by such Operator or such person
acting as Operator of any Metering System installed or being installed
as at the FMS Date or the installation of which was commenced prior to
the FMS Date, and which relates to a Metering System which, by virtue
of a dispensation granted pursuant to this paragraph 14, is not
required by that Supplier.
14.4 Appeals: Any dispensation from the requirements of a Code of Practice
or from the requirements relating to the commercial boundary of
paragraph 7.1.2 agreed in accordance with this paragraph 14 shall be
capable of being appealed in accordance with the provisions of
paragraph 19.1, provided that no dispensation shall be considered to be
agreed in accordance with this paragraph upon any appeal being granted
where the approval and agreement of the relevant Parties as referred to
in paragraph 14.1(c) has not been obtained.
PART 6
FURTHER RIGHTS OF OPERATORS
15. OWNERSHIP AND USE OF DATA
15.1 Ownership of data: The Registrant of any Metering System shall own the
data acquired therefrom provided that (and each Registrant hereby
expressly agrees and acknowledges that) a Second Tier Customer, ERS
First Tier Customer or Non-Pooled Generator of that Registrant in
respect of which such data is generated shall be entitled at all times
without charge by the Registrant to access, obtain and use such data
and provided further that:-
(i) such access, obtaining or use, or the method of such access,
obtaining or use, does not interfere with the operation of
Settlement;
(ii) nothing in this paragraph 15.1 shall require the Registrant
actively to provide such data to such Second Tier Customer,
ERS First Tier Customer or Non-Pooled Generator or so to
provide such data free of charge; and
(iii) such access shall not be by using any communications link
used by the Settlement System Administrator for the purposes
of Clause 60.6 without the prior written consent of the
Settlement System Administrator.
15.2 Use of data: The Settlement System Administrator and the Pool Auditor for
the purposes of the performance by the Pool Auditor of its functions under
Part IX of this Agreement are hereby authorised to use all data which is
owned by the Registrant pursuant to paragraph 15.1 as may be permitted
pursuant to this Agreement, and the Settlement System Administrator or, as
the case may be, the Pool Auditor may only release such data to others to
the extent set out in this Agreement. It is hereby expressly agreed that
the Settlement System Administrator is permitted to and shall against
request and payment of a reasonable charge therefor release to a Second
Tier Customer, ERS First Tier Customer or Non-Pooled Generator such data
relating to it as is referred to in paragraph 15.1.
15.3 Communications Equipment use: Communications Equipment need not be
dedicated exclusively to the provision of data to the Settlement System
Administrator for the purposes of Settlement provided that any other
use shall not interfere at any time with the operation of Settlement
and subject also to the relevant provisions (if any) in the relevant
Tariff.
16. CHANGES OF SUPPLIERS
Change of Supplier: Where notice is served on the Settlement System
Administrator in the form prescribed by the relevant Agreed Procedure
by a proposed Registrant of an existing Site which is the point of
supply of a Second Tier Supplier or Second Tier Customer or ERS First
Tier Customer or Non-Pooled Generator, the proposed Registrant and the
Operator or proposed Operator (where the existing Operator is to be
replaced) shall confirm that the Metering System required for the
purposes of this Schedule and Part XV of this Agreement will be
installed and Commissioned at the Site by the date required by the
relevant Agreed Procedure.
17. ATTENDANCE AT MEETINGS AND RIGHTS OF REPRESENTATION
17.1 Attendance at Pool Members meetings:
17.1.1 Any notice convening any general meeting of Pool Members
including any adjournment thereof in accordance with Clause
9.5 shall be additionally given to all Meter Operator
Parties and be given in accordance with the provisions of
that Clause. The accidental omission to give notice of a
meeting to any Meter Operator Party entitled to receive
notice shall not invalidate the proceedings at that meeting.
17.1.2 Each Meter Operator Party (or its duly appointed
representative) shall have the right to attend at each
general meeting of Pool Members and shall have the right to
speak (but not to vote) thereat.
17.1.3 The Secretary shall circulate any minutes circulated in
accordance with Clause 10.10 additionally to Meter Operator
Parties in accordance with the provisions thereof.
17.2 Attendance at meetings of the Executive Committee, and sub-committees
and sub-groups of the Executive Committee:
17.2.1 One representative for all Meter Operator Parties selected
in accordance with paragraph 17.3 (a "Meter Operator Party
Representative") shall be entitled to attend and speak (but
-----------------------------------
not to vote) at meetings of the Executive Committee or at
meetings of any sub-committee or sub-group of the Executive
Committee on behalf of all Meter Operator Parties and shall
be entitled to appoint from time to time alternates and
delegates to assist him in those functions, where matters
directly concerning the functions, duties or
responsibilities of Operators, individually or collectively,
have been identified or advised in the agenda for that
meeting to be circulated pursuant to Clause 18.1.4 or, as
the case may be, Clause 20.1.
17.2.2 Notice of meetings of the Executive Committee or meetings of
any sub-committees or sub-group at which the relevant Meter
Operator Party Representative is entitled to attend shall be
given to him, together with all prescribed accompanying
documentation and agendas, in accordance with Clause 18.1
or, as the case may be, Clause 20.1. The Meter Operator
Party Representative shall as soon as is reasonably
practicable copy such notice together with such accompanying
documentation to all Meter Operator Parties.
17.2.3 The relevant Meter Operator Party Representative shall be
entitled to receive copies of all minutes of meetings which
he was entitled to attend and which the Secretary is
required to circulate in accordance with Clause 18.1.6 or,
as the case may be, Clause 20.1 in accordance with the
provisions thereof. Such Meter Operator Party
Representative, if he attended the relevant meeting, shall
notify his approval or disapproval of the minutes to the
Secretary no later than ten working days after receipt
thereof and, if he fails to do so, he shall be deemed to
have approved the same.
17.3 Appointment of representative for Meter Operator Parties: The Director
shall nominate from time to time a representative who shall represent
the collective and individual interests of Meter Operator Parties under
this Agreement.
17.4 Class representation: The Executive Committee or any sub-committee or
sub-group thereof shall be entitled to assume that any Meter Operator
Party Representative represents the interests of Meter Operator Parties
as a class and, where appropriate, represents any affected specific
individual interests and, in considering matters or exercising its
powers or discretions under this Agreement, the Executive Committee or
any sub-committee or sub-group thereof shall not be obliged to seek,
nor to take account of, the views, comments or consent or otherwise of
any other Meter Operator Party.
PART 7
FAILURE TO COMPLY AND DISPUTES
18. FAILURE TO COMPLY WITH OBLIGATIONS
Defective Metering Equipment: Subject to the provisions of Clause
60.4.9, in the event that an Operator cannot or does not comply with
its obligations to repair, adjust or replace or renew any defective
component pursuant to paragraph 8.4, the Settlement System
Administrator shall have the right to carry out or procure there is
carried out such repair, adjustment, replacement or renewal and to
recover its own costs, expenses and profit thereon from such Operator
forthwith on demand or, where the Settlement System Administrator,
having taken reasonable steps to recover such costs, expenses and
profit from the relevant Operator is unable so to recover within a
reasonable period of time, from the Registrant in respect of that
Operator subject thereto forthwith on demand (such profit to be
equivalent to the Handling Charge on such costs and expenses, as
defined in sub-section 1.1 of the Appendix to Schedule 4).
19. DISPUTES
19.1 Disputes which may involve a Meter Operator Party: Any dispute regarding
Metering Equipment (other than a dispute referred to in Clause 60.11.1 or
one arising out of any decision made pursuant to paragraph 6.2, which in
the latter case shall be determined in accordance with the provisions of
that paragraph) shall be referred to the Executive Committee. If any Party
or Meter Operator Party is not satisfied with the decision of the Executive
Committee, the matter may be referred by such Party or Meter Operator Party
to arbitration in accordance with Clause 83 of this Agreement as
incorporated into this Schedule by paragraph 24.
19.2 Tests to determine disputes: Any testing of Metering Equipment required to
settle any dispute (including a dispute under Clause 60.11.1) will, prima
facie, be carried out by the relevant Operator on the relevant Metering
Equipment mounted in its operational position in the presence of the
Settlement System Administrator acting on behalf of the Executive Committee
and in the presence of the Host PES. All testing will be carried out in
accordance with the relevant Code of Practice or, where applicable, any
relevant dispensation agreed in accordance with this Schedule. The test
performance of any Metering Equipment shall be compared with calibrated
test equipment by one of the following methods:-
(a) injecting into the measuring circuits (i.e. excluding the
primary current and voltage transformers) and comparing the
readings or records over such period as may be required by
the relevant Code of Practice or, where applicable, any
relevant dispensation agreed in accordance with this
Schedule to ensure a reliable comparison; or
(b) where practicable, operating the calibrated test equipment
from the same primary current and voltage transformers as
the Metering Equipment under operating conditions. The
readings or recordings of the Metering Equipment and the
calibrated test equipment shall be compared over such period
as may be required by the relevant Code of Practice or,
where applicable, any relevant dispensation agreed in
accordance with this Schedule; or
(c) in exceptional circumstances, such other method as may be
specified by the Settlement System Administrator.
19.3 Laboratory tests: Metering Equipment which fails any test whilst in its
operational position shall be tested under laboratory conditions in
accordance with the relevant Code of Practice.
19.4 Witnesses: No more than two persons representing all interested Parties
or Meter Operator Parties nominated by the Executive Committee
(including the Host PES) in addition to the Settlement System
Administrator will be entitled to witness tests taken as a result of a
dispute, including tests confirming the calibration of test equipment,
or inspect evidence of valid calibration, or valid calibration
certificates, as appropriate.
19.5 Saving: It is hereby expressly acknowledged and agreed by the Parties that
the resolution of any dispute referred to in Clause 60.11.1 shall in all
cases be without prejudice to the bringing or pursuing of any claim, by or
against, or the resolving of any issue between any one or more of such
Parties or any other Party arising out of the same facts or circumstances,
or facts or circumstances incidental to the facts and circumstances giving
rise to such dispute or upon the basis of which such dispute has been
resolved, in favour of, or against, a Meter Operator Party or Meter
Operator Parties.
19.6 Release of data: Upon the request of any Party or Meter Operator Party
which is a party to a dispute referred to in paragraph 19.1 any
relevant data derived from any Metering System may be submitted by the
Settlement System Administrator to the body then having jurisdiction in
respect of the relevant dispute for the purposes of resolving such
dispute.
PART 8
LIMITATION OF LIABILITY
20. LIMITATION OF LIABILITY
20.1 Limitation of liability: Subject to paragraph 20.2 and save where any
provision of this Agreement provides for an indemnity, each Party and
each Meter Operator Party agrees and acknowledges that no Party nor
Meter Operator Party (excluding for this purpose the Settlement System
Administrator) (in this paragraph 20, the "Party Liable") or any of its
officers, employees or agents shall be liable
------------
to any of the other Parties or Meter Operator Parties for loss arising
from any breach of this Schedule or of this Agreement other than for
loss directly resulting from such breach and which at the date of this
Agreement was reasonably foreseeable as not unlikely to occur in the
ordinary course of events from such breach in respect of:-
20.1.1 physical damage to the property of any of the other Parties
or Meter Operator Parties or its or their respective
officers, employees or agents; and/or
20.1.2 the liability of any such other Party or Meter Operator
Party to any other person for loss in respect of physical
damage to the property of any other person.
20.2 Death and personal injury: Nothing in this Schedule or this Agreement shall
exclude or limit the liability of the Party Liable for death or personal
injury resulting from the negligence of the Party Liable or any of its
officers, employees or agents and the Party Liable shall indemnify and keep
indemnified each of the other Parties or Meter Operator Parties, its
officers, employees or agents from and against all such and any loss or
liability which any such other Party or Meter Operator Party may suffer or
incur by reason of any claim on account of death or personal injury
resulting from the negligence of the Party Liable or any of its officers,
employees or agents.
20.3 Exclusion of certain types of loss: Subject to paragraph 20.2 and save
where any provision of this Agreement provides for an indemnity,
neither the Party Liable nor any of its officers, employees or agents
shall in any circumstances whatsoever be liable to any of the other
Parties or Meter Operator Parties for:-
20.3.1 any loss of profit, loss of revenue, loss of use, loss of
contract or loss of goodwill; or
20.3.2 any indirect or consequential loss; or
20.3.3 loss resulting from the liability of any other Party or
Meter Operator Party to any other person howsoever and
whensoever arising save as provided in paragraphs 20.1.2 and
20.2.
20.4 Trust: Each Party and each Meter Operator Party acknowledges and agrees
that each of the other Parties and Meter Operator Parties holds the
benefit of Clauses 20.1, 20.2 and 20.3 of this Schedule for itself and
as trustee and agent for its officers, employees and agents.
20.5 Survival: Each of paragraphs 20.1, 20.2, 20.3 and 20.4 shall:-
20.5.1 be construed as a separate and severable contract term, and
if one or more of such paragraphs is held to be invalid,
unlawful or otherwise unenforceable the other or others of
such paragraphs shall remain in full force and effect and
shall continue to bind the Parties and the Meter Operator
Parties; and
20.5.2 survive termination of this Agreement.
20.6 Saving: For the avoidance of doubt, nothing in this Part 8 shall
prevent or restrict any Party or Meter Operator Party enforcing any
obligation (including suing for a debt) owed to it under or pursuant to
this Schedule or this Agreement.
20.7 Full negotiation: Each Party and each Meter Operator Party acknowledges
and agrees that the foregoing provisions of this Part 8 have been the
subject of discussion and negotiation and are fair and reasonable
having regard to the circumstances as at the date this Schedule came
into effect.
PART 9
ACCESS
21. ACCESS
21.1 Access to Party's and Meter Operator Party's property: Each Party and
Meter Operator Party hereby agrees to grant to any Invitee and, in the
case of a Meter Operator Party, the Registrant of the Metering System
in respect of the Metering System of which it is Operator, and, in the
case of a Registrant of a Metering System, the Meter Operator Party
which is the Operator in respect of that Metering System:-
(a) full right during the currency of this Agreement to enter
upon and through and remain upon, or do any other act
contemplated by this Schedule 21 which would otherwise
constitute a trespass upon, any part of such Party's or, as
the case may be, Meter Operator Party's, property;
(b) in the case of the Operator or the Settlement System
Administrator, full right to remove any part of Metering
Equipment forming part of such property to a laboratory or
test house in accordance with the provisions of this
Schedule; and
(c) in the case of the Pool Auditor, full right to perform such
tasks and to do all such acts and things as are necessary
for the purpose of performing audits, tests, reviews and
checks under the SSA Arrangements, including full right to
carry out such tests on Metering Equipment provided that the
person or persons allocated to carry out such tests by the
Pool Auditor is or are suitably qualified in the operation
of Metering Equipment,
provided always that such access rights conferred by or pursuant to
this paragraph shall be granted only to the extent necessary for the
purposes of this Schedule and shall be subject to the other provisions
of this paragraph 21.
21.2 Invitees: An Invitee for the purposes of this paragraph 21 shall comprise
any one or more of the following:-
(i) the Settlement System Administrator acting through any reasonably nominated
employees, agents or contractors;
(ii) the Executive Committee acting through any reasonably nominated
persons;
(iii) the Equipment Owner for the purposes only of fulfilling its
obligations under paragraph 7.1.3;
(iv) the Pool Auditor acting through any partner or employee;
(v) the auditor carrying out the Scheduling and Despatch Review
acting through any partner or employee;
(vi) the Ancillary Services Provider acting through any
reasonably nominated employees, agents or contractors; and
(vii) the Grid Operator acting through any reasonably nominated
employees, agents or contractors.
21.3 Access to property of Second Tier Customers, ERS First Tier Customers,
Non-Pooled Generators and Third Parties: The Registrant of a Metering
System and the Meter Operator Party which is the Operator or Potential
Operator of that Metering System hereby jointly and severally agree to
use all reasonable endeavours to, and to co-operate with each other for
the purpose of procuring for the benefit of each Invitee and for each
other:-
(a) full right to enter upon and through and remain upon, or do
any other act contemplated by this Schedule which would
otherwise constitute a trespass upon, any part of the
property:-
(i) of the Second Tier Customer or ERS First Tier Customer
in respect of which that Registrant is the Supplier;
(ii) of the Non-Pooled Generator from which that Registrant
receives supply; and
(iii) of any other person which is not a party to this
Agreement (the "Third Party") but the exercise of
whose rights would prevent, in relation to such Second
Tier Customer, ERS First Tier Customer, Non-Pooled
Generator, the Registrant, the Meter Operator Party or
any Invitee from performing its obligations under this
Schedule or this Agreement and the existence of whose
rights is known to, or ought reasonably be known to,
the Registrant or, as the case may be, the Meter
Operator Party;
(b) in the case of the Operator or the Settlement System
Administrator, full right to remove all or any part of
Metering Equipment forming part of such property to a
laboratory or test house in accordance with the provisions
of this Schedule; and
(c) in the case of the Pool Auditor, full right to perform such
tasks and to do all such acts and things as are necessary
for the purpose of performing audits, tests, reviews and
checks under the SSA Arrangements, including full right to
carry out such tests on Metering Equipment provided that the
person or persons allocated to carry out such tests by the
Pool Auditor is or are suitably qualified in the operation
of Metering Equipment,
provided always that such access rights conferred by or pursuant to
this paragraph shall be granted only to the extent necessary for the
purposes of this Schedule and shall be subject to the other provisions
of this paragraph 21.
21.4 Failure to procure access: If, after having used all such reasonable
endeavours to procure access rights in accordance with this paragraph
21 in respect of a Second Tier Customer, an ERS First Tier Customer, a
Non-Pooled Generator or Third Party referred to in paragraph 21.3, a
Registrant and/or Meter Operator Party have been unable to procure any
such rights the Registrant:-
(i) hereby undertakes not to make any future supplies to such
Second Tier Customer or ERS First Tier Customer at the Site
in respect of which such access rights are required until
such access rights have been obtained and if supplying such
Second Tier Customer or ERS First Tier Customer at such Site
to cease forthwith to supply such Second Tier Customer or
ERS First Tier Customer at that Site;
(ii) hereby undertakes not to take any future supply of
electricity from such Non-Pooled Generator at the Site in
respect of which such access rights are required until such
access rights have been obtained and if taking a supply of
electricity from such Non-Pooled Generator at such Site to
cease forthwith to take a supply of electricity from such
Non-Pooled Generator at that Site; and
(iii) shall notify the Settlement System Administrator in
accordance with the relevant Agreed Procedure of that fact.
The Settlement System Administrator shall be entitled to assume that
the consents of any Third Parties shall have been obtained in
accordance with the provisions of this paragraph until such time as it
is fixed with notice to the contrary.
21.5 Right of access: The right of access provided for in paragraphs 21.1
and 21.3 shall include the right to bring on to such Meter Operator
Party's, Party's, Second Tier Customer's, ERS First Tier Customer's,
Non-Pooled Generator's or Third Party's property such vehicles, plant,
machinery and maintenance or other materials as shall be reasonably
necessary for the purposes of this Schedule.
21.6 Authorisation: Each Meter Operator Party or, as the case may be, Party
shall ensure that any particular authorisation or clearance which is
required to be given to ensure access to any Invitee, Registrant or
Meter Operator Party in accordance with this paragraph is available on
arrival.
21.7 Safety: Subject to the right of the Settlement System Administrator to
inspect without notice pursuant to paragraph 8.2.2, each Meter Operator
Party or, as the case may be, Party shall procure that all reasonable
arrangements and provisions are made and/or revised from time to time as
and when necessary or desirable to facilitate the safe exercise of any
right of access granted pursuant to paragraph 21.1 or 21.3 with the minimum
of disruption, disturbance and inconvenience. Such arrangements and
provisions may, to the extent that the same are reasonable, limit or
restrict the exercise of such right of access and/or provide for any Meter
Operator Party or Party to make directions or regulations from time to time
in relation to a specified matter. Matters to be covered by such
arrangements and/or provisions include:-
(i) the identification of any relevant Metering Equipment;
(ii) the particular access routes applicable to the land in
question having particular regard for the weight and size
limits on those routes;
(iii) any limitations on times of exercise of the right of access;
(iv) any requirements as to prior notification and as to
authorisation or security clearance of individuals
exercising such right of access and procedures for obtaining
the same;
(v) the means of communication to the Meter Operator Party or,
as the case may be, Party (and all employees and/or
contractors who may be authorised from time to time to
exercise such right of access) of any relevant directions or
regulations made by the Meter Operator Party or, as the case
may be, Party; and
(vi) the identification of and arrangements applicable to
personnel exercising the right of access granted by
paragraphs 21.1 or 21.3.
Each Party or Meter Operator Party shall (and shall procure
that all persons exercising any right of access on behalf of
such Party or Meter Operator Party) observe and perform any
such arrangements and all provisions (or directions or
regulations issued pursuant thereto) made from time to time.
21.8 Damage: Each Party or Meter Operator Party shall procure that all
reasonable steps are taken in the exercise of any right of access by or
on behalf of such Party or Meter Operator Party to:-
(a) avoid or minimise damage in relation to any Meter Operator
Party's, Party's, Second Tier Customer's, ERS First Tier
Customer's, Non-Pooled Generator's or other Third Party's
property; and
(b) cause as little disturbance and inconvenience as possible to
any Meter Operator Party, Party, Second Tier Customer, ERS
First Tier Customer, Non-Pooled Generator or other Third
Party or other occupier of such Meter Operator Party's,
Party's, Second Tier Customer's, ERS First Tier Customer's,
Non-Pooled Generator's or other Third Party's property,
and shall make good any damage caused to such property in the course of
exercise of such rights as soon as may be practicable. Subject to this,
all such rights of access shall be exercisable free of any charge or
payment of any kind.
21.9 Licence Restricted Parties:
(a) This paragraph 21.9 shall apply to any area owned or
occupied by any Party, Meter Operator Party or any
subsidiary of such Party or Meter Operator Party, Second
Tier Customer, ERS First Tier Customer, Non-Pooled Generator
or Third Party (each a "Licence Restricted
------------------
Party") which is the holder of or subject to a licence
granted under the Nuclear Installations Act 1965 (a "Nuclear
Site Licence") or subject to restrictions in relation
--------------------
to a Nuclear Site Licence, where such area is subject to
that Nuclear Site Licence but, in respect of Energy
Settlements and Information Services Limited, this paragraph
21.9 shall apply subject to the provisions of any other
agreement between the Licence Restricted Party and NGC (or
any of its subsidiaries) imposing restrictions on NGC's (or
any of its subsidiaries') right of access to any area owned
by the Licence Restricted Party subject to (or subject to
restrictions in relation to) a Nuclear Site Licence.
(b) This paragraph 21.9 shall take precedence over any contrary
provisions of this Schedule.
(c) No Party or Meter Operator Party shall enter or attempt to
enter or permit or suffer any person to enter or attempt to
enter any area owned or occupied by the Licence Restricted
Party to which a Nuclear Site Licence applies except
strictly in accordance with the provisions, restrictions and
conditions of the Nuclear Site Licence.
(d) The Licence Restricted Party shall be entitled to take
reasonable action of any kind whatsoever relating to or
affecting access to its property as it considers on
reasonable grounds to be necessary in order to enable the
Licence Restricted Party to comply with the provisions,
restrictions and conditions of a Nuclear Site Licence or
avert or minimise any reasonably anticipated breaches
thereof.
21.10 Denial of access: The Settlement System Administrator shall not incur
any liability under this Schedule or this Agreement in the event it
cannot perform any of its duties hereunder due to access to Metering
Equipment being denied to it save that the Settlement System
Administrator shall inform the Executive Committee thereafter.
PART 10
COMMUNICATIONS EQUIPMENT
22. COMMUNICATIONS EQUIPMENT
22.1 Compatibility: Communications Equipment at or relating to any Site (which
whenever used in this paragraph 22 shall include all Qualifying Sites) must
be compatible with the communications links provided by the Settlement
System Administrator pursuant to Clause 60.6.3(a) in respect of that Site.
Prior to the installation of Communications Equipment at or relating to any
Site the Tariff Operator shall consult with the Settlement System
Administrator to ensure that such Communications Equipment will be
compatible with such communication links. Where a Tariff Operator becomes
aware that Communications Equipment at or relating to a Site is used for
purposes other than in connection with Settlement, it shall notify the
Settlement System Administrator of any such use or purposes to which that
Communications Equipment is put.
22.2 Settlement System Administrator's responsibility in respect of
communications links: Subject to the requirement of the Settlement
System Administrator to collect data in accordance with Clause 60.6.1
and subject to the provisions of paragraph 22.1, the Settlement System
Administrator shall use all reasonable endeavours to ensure that the
communications link provided by it (but which, for the avoidance of
doubt, does not form part of Communications Equipment) to any Site
pursuant to Clause 60.6.3(a) is of the type requested by the Tariff
Operator.
22.3 Tariff payments:
(a) The Settlement System Administrator shall pay from time to
time to each Tariff Operator in respect of a Site for which
it is the Tariff Operator, an amount (if any) determined in
accordance with the relevant Tariff and payable in respect
of Communications Equipment installed and maintained at or
relating to such Site by such Tariff Operator for the
purposes of this Agreement.
(b) The Settlement System Administrator shall recover from time to
time (for credit to Pool Members as the Executive Committee shall
from time to time direct) from a Tariff Operator and a Tariff
Operator shall pay from time to time (for credit to Pool Members
as the Executive Committee shall from time to time direct) to the
Settlement System Administrator in respect of the costs of manual
on-site interrogation or data estimation costs incurred by it in
respect of each Site at which there is not installed and
maintained Communications Equipment in accordance with the
requirements of this Schedule, such amounts (if any) determined
in accordance with the relevant Tariff. Where the Settlement
System Administrator has received any such payment pursuant to
this sub-paragraph 22.3(b) it shall be set off in full against
amounts which may be recovered by the Settlement System
Administrator pursuant to paragraph 22.6 or 22.7.
(c) The Settlement System Administrator may, and at the
direction of the Executive Committee shall, without notice
to the relevant Tariff Operator set off amounts payable to
it by that Tariff Operator under the relevant Tariff against
amounts payable by the Settlement System Administrator to
that Tariff Operator, under the relevant Tariff. Any amounts
so set off by the Settlement System Administrator under this
paragraph 22.3 shall be deemed to have been received by the
Settlement System Administrator for the purposes of
paragraph 22.3(b).
(d) Notwithstanding the terms of any Tariff, a Tariff Operator
shall not be entitled to receive payment of or otherwise
recover any sums for or relating to goods or services
delivered or provided by it under or for the purposes of
this Agreement and invoiced or claimed by the Tariff
Operator to or from the Settlement System Administrator or
Pool Members more than 90 days after the end of the month in
which such goods or services were delivered or provided.
22.4 Refunds: Where a Tariff Operator is removed, resigns or otherwise
ceases to be Tariff Operator at or relating to any Site it shall pay to
the Settlement System Administrator such amount (if any) as is set out
in the relevant Tariff by way of reimbursement of amounts paid to it
pursuant to paragraph 22.3.
22.5 Additional payments: If a Tariff Operator can demonstrate to the reasonable
satisfaction of the Settlement System Administrator that any relevant
payment to be made pursuant to this paragraph 22 and in accordance with the
relevant Tariff in respect of any particular Site as is described in the
relevant Tariff does not reflect the cost to such Tariff Operator of
providing in respect of Communications Equipment at or relating to such
Site installation and maintenance services in an efficient and economic
manner then the Settlement System Administrator may negotiate an additional
payment to such Tariff Operator in respect of Communications Equipment at
or relating to such Site provided that the Tariff Operator shall be
entitled to receive such additional payment only if and to the extent that
the economic and efficient provision of installation and maintenance
services in respect of the Communications Equipment at or relating to that
Site is in fact effected. If the Tariff Operator and the Settlement System
Administrator fail to agree on the amount of an additional payment, the
Tariff Operator may refer the matter to the Executive Committee which shall
determine the same. The relevant Meter Operator Party may refer any such
decision of the Executive Committee to the Director and for the purposes
thereof shall be deemed to be exercising a Dissentient Pool Member's right
of appeal pursuant to and in accordance with Clause 13.5. The Settlement
System Administrator shall send the Executive Committee on request a
written report giving reasonable details of any such additional payments
made or proposed to be made.
22.6 Costs beyond SSA's control: Payments which are made to Tariff Operators
in respect of the provision of installation and maintenance services in
respect of Communications Equipment (whether or not pursuant to or in
addition to the relevant Tariff) and payments for communications links
shall be a cost beyond the control of the Settlement System
Administrator.
22.7 Recovery of costs: All costs and xpenses relating to the payment
arrangements referred to in this Schedule for the installation and
maintenance of Communications Equipment, the relevant Tariff or otherwise,
including payments which are made to Tariff Operators for the provision of
installation and maintenance services in respect of Communications
Equipment, payments for communications links, management time and expenses
of the Settlement System Administrator and the cost of funds borrowed to
finance such costs, expenses and payments, may be recovered in full by the
Settlement System Administrator in accordance with the Charging Procedure.
22.8 No agency: No agency relationship (whether express or implied) shall
be, or be deemed to be, created between any Tariff Operator and the
Settlement System Administrator or any other person as a result of the
payments to be made pursuant to this paragraph 22.
22.9 Tariff Operators:
(a) There shall at any point in time be no more than one Tariff
Operator in respect of each Metering System or Metering
Equipment.
(b) Each Tariff Operator shall, for so long as it is entitled to
receive payments in respect of Communications Equipment at
or relating to a Site which is not a 1993/1994 Tariff
Qualifying Site (as defined in the Tariff which is entitled
the Tariff for 1993/1994 Sites), in respect of that
Communications Equipment (but not in respect of any other
Metering Equipment which is not Communications Equipment):
(i) ensure there is installed Communications Equipment
(including its component parts) which complies with
the provisions of this Schedule, Part XV of this
Agreement and the relevant Code of Practice or shall
be the subject of, and comply with, a dispensation
agreed in accordance with paragraph 14, and which uses
such communications protocols as may be selected in
accordance with paragraph 7.2.2 of this Schedule;
(ii) at its own cost and expense (but without prejudice to
its right to charge any other person for such service
pursuant to another agreement or arrangement) keep
installed, in good working order, repair and condition
that Communications Equipment (including its component
parts) to allow for the correct transmission of data
in accordance with this Agreement (whether or not such
data are actually required to be transmitted for the
purposes of this Agreement); and
(iii) provide to the Settlement System Administrator such
information in respect of that Communications
Equipment as it would be required to provide pursuant
to this Schedule, Part XV of this Agreement and the
relevant Agreed Procedure, were it, in respect of that
Qualifying Site at or in relation to which that
Communications Equipment is installed, an Operator in
respect of a Site at the point of connection to a
Second Tier Customer or an ERS First Tier Customer for
the purposes of the Settlement System Administrator
recording and keeping up-to-date details of that
Communications Equipment on the Register.
22.10 Transitional Arrangements: It is hereby expressly acknowledged and
agreed by the Parties and Meter Operator Parties that, with effect from
the date this provision comes into effect, references in the Tariff,
which on 22nd April, 1994 became effective as at 1st January, 1994 (if
not then superseded), to "Potential Operator" shall be read, with
respect to any obligation then unperformed, or right then unenjoyed, as
if that reference were a reference to a Tariff Operator.
PART 11
TRANSITIONAL ARRANGEMENTS
23. TRANSITIONAL ARRANGEMENTS
23.1 Transitional Arrangements: With effect from the date this Schedule
came into effect (the "NSD Date")
--------
each Party which is at that date an Operator or a Potential Operator
shall be deemed to be a Meter Operator Party (in addition to continuing
as a Party in any other capacity) and to have complied with all the
requirements of or referred to in this Schedule 21 relating to
admission as a Meter Operator Party and as an Operator. Such Parties
are more particularly described in Annex 4 hereto. The Parties
acknowledge and confirm that the deemed admission of an existing Party
as a Meter Operator Party shall not affect that Party's rights and
obligations under any agreement or arrangement relating to being an
Operator entered into or existing between the Parties or any of them
prior to such deemed admission, and that accordingly such agreement or
arrangement shall continue notwithstanding the change and any reference
to that Party being an Operator under this Agreement shall be construed
as being an Operator as a Meter Operator Party.
23.2 Saving: Notwithstanding paragraph 23.1, each Party to which this Part 11
applies expressly acknowledges and agrees that, notwithstanding any deemed
satisfaction of the conditions which are required to be fulfilled as at the
NSD Date in accordance with this Schedule for the purposes of admission as
a Meter Operator Party and as Operator, it shall be subject (but only with
prospective effect; that is to say to the effect that any conditions which
apply as at the NSD Date are deemed to be fulfilled and need not then be
fulfilled as a continuing obligation) to the continuing and further
conditions for registration as an Operator from time to time and to the
provisions of paragraph 4.4, and that it shall be subject to the provisions
for the resignation, removal and cessation as Operator in respect of any
Metering System, or as Meter Operator Party, as the case may be, in
accordance with the provisions of this Schedule as at the date hereof and
from time to time, and after any such resignation, removal or cessation as
a Meter Operator Party, it shall be subject in full to the procedures for
admission as a Meter Operator Party and Operator as may be set out from
time to time in this Schedule.
PART 12
INCORPORATION OF OTHER PROVISIONS OF THIS AGREEMENT
24. INCORPORATION BY REFERENCE
Incorporation by reference: The provisions of Clauses 1.2, 1.3, 8.6,
34.1, 34.2, 34.3, 37.3, 66.7, 68, 69, 70, 71, 74, 75, 76, 77, 78, 79,
80, 81, 82, 83, 84 and 85 of the Pooling and Settlement Agreement,
Sections 4 and 7 of Schedule 4 thereto and Sections 3 and 4 of Part E
of the Appendix to that Schedule shall be deemed to be incorporated
into this Schedule 21 mutatis mutandis as if each reference therein to
the word "Party" were a reference to the words "Party and Meter
Operator Party" and to the word "Parties" were to the words "Parties
and Meter Operator Parties".
PART 13
QUALIFYING UNMETERED SUPPLIES
25. QUALIFYING UNMETERED SUPPLIES
Notwithstanding any of the other provisions of this Schedule, the
provisions of Clause 60.19 and any Second Tier Unmetered Supplies
Procedures shall, to the extent they are supplemental to or conflict
with any other provisions of this Schedule, govern the rights and
obligations of the Parties (including each Operator and each Meter
Operator Party) in relation to Qualifying Unmetered Supplies.
ANNEX 1
Form of Meter Operator Party Admission Application
The Executive Committee for the
Pooling and Settlement System in England and Wales
[copy to: the Settlement System Administrator]
[Date]
Dear Sir,
1. We [insert full legal name and address of registered/principal office of
applicant] refer to Schedule 21 to the Pooling and Settlement Agreement for the
electricity industry in England and Wales dated 30th March, 1990 (as amended,
varied, supplemented, modified or suspended, the "Pooling and Settlement
Agreement").
2. Unless the context otherwise requires, words and expressions defined in the
Pooling and Settlement Agreement for the purposes of Schedule 21 to the Pooling
and Settlement Agreement shall bear the same meanings respectively when used
herein.
3. We hereby apply to be admitted as an additional party in accordance with, and
for the purposes only of, Schedule 21 to the Pooling and Settlement Agreement
pursuant to paragraph 3 and subject to the terms set out in paragraph 2 thereof.
We wish to participate thereunder in the capacity of a Meter Operator Party.
4. We hereby represent and warrant to the Executive Committee (for itself and on
behalf of all the Parties and Meter Operator Parties) that:-
(A) we are duly organised and validly existing under the laws
of the jurisdiction of our
organisation or incorporation;
(B) we have the power to execute and deliver our Meter Operator
Party Accession Agreement and any other documentation
relating to that Agreement or the Pooling and Settlement
Agreement and such other agreements as are required thereby
and to perform our obligations hereunder or thereunder and
we have taken all necessary action to authorise such
execution, delivery and performance; and
(C) such execution, delivery and performance do not violate or
conflict with any law applicable to us, any provision of our
constitutional documents, any order or judgment of any court
or other agency of government applicable to us or any of our
assets or any contractual restriction on or affecting us or
any of our assets.
We confirm that these representations and warranties will also be true
and correct in all material respects at the date of our admission as a New Meter
Operator Party.
5. We enclose the application fee of (pound)[ ]*.
6. We accept and agree to be bound by the terms of paragraph 3 of Schedule 21 to
the Pooling and Settlement Agreement.
Yours faithfully,
-------------------------
duly authorised for and on behalf of
[insert full legal name of the New Meter Operator Party]
* Insert current application fee prescribed by the Executive Committee.
ANNEX 2
Form of Meter Operator Party Resignation Notice
The Secretary of the Executive Committee for the
Pooling and Settlement System in England and Wales
[copied to: the Settlement System Administrator]
[Date]
Dear Sir,
1. We [insert full legal name and address of registered/principal office of
applicant] refer to Schedule 21 to the Pooling and Settlement Agreement for the
electricity industry in England and Wales dated 30th March, 1990 (as amended,
varied, supplemented, modified or suspended, the "Pooling and Settlement
Agreement").
2. Unless the context otherwise requires, words and expressions defined in the
Pooling and Settlement Agreement for the purposes of Schedule 21 to the Pooling
and Settlement Agreement shall bear the same meanings respectively when used
herein.
3. We hereby give notice pursuant to paragraph 5.1 of Schedule 21 to the Pooling
and Settlement Agreement that we are resigning as a Meter Operator Party with
effect from the date falling 28 days after receipt by you of this Meter Operator
Party Resignation Notice.
4. We confirm that in giving this notice of resignation, we are not and will not
be in breach of the restriction on resignation set out in paragraph 5.2 of
Schedule 21 to the Pooling and Settlement Agreement.
5. We acknowledge that our resignation as a Meter Operator Party is without
prejudice to our accrued rights and liabilities and any rights and liabilities
which may accrue to us in relation to the period during which we were a Meter
Operator Party under Schedule 21 to the Pooling and Settlement Agreement or any
agreement referred to in paragraph 5.2 of Schedule 21 to the Pooling and
Settlement Agreement.
6. We further expressly acknowledge and confirm that our resignation as a Meter
Operator Party pursuant to Schedule 21 to the Pooling and Settlement Agreement
is without prejudice to our past, present and future accrued or accruing rights
and liabilities as a Party
to the Pooling and Settlement Agreement in any capacity whatsoever other than
that of Meter Operator Party.
Yours faithfully,
-------------------------
duly authorised for and on behalf of
[insert full legal name of Meter Operator Party]
ANNEX 3
Form of Meter Operator Party Accession Agreement
THIS SUPPLEMENTAL AGREEMENT is made on [ ] BETWEEN:-
(1) [ ], a company incorporated [with limited liability] under the laws of [ ]
[(registered number [ ])] and having its [registered] [principal] office at
[ ] (the "New Meter Operator Party"); and
(2) [ ] (the "Nominee") on behalf of all the parties to the Pooling and
Settlement Agreement referred to below.
WHEREAS:-
(A) by an agreement dated 30th March, 1990 made between the Founder
Generators named therein (1), the Founder Suppliers named therein (2),
Energy Settlements and Information Services Limited (formerly NGC
Settlements Limited) as Settlement System Administrator (3), Energy
Pool Funds Administration Limited as Pool Funds Administrator (4), The
National Grid Company plc as Grid Operator and Ancillary Services
Provider (5), and Scottish Power plc and Electricite de France,
Service National as Externally Interconnected Parties (6) (as amended,
varied, supplemented, modified or suspended, the "Pooling and
Settlement Agreement") the parties thereto agreed to give effect to
and be bound by certain rules and procedures for the operation of an
electricity trading pool and the operation of a settlement system;
(B) by paragraph 2 of Schedule 21 to the Pooling and Settlement Agreement
additional parties may be admitted to that Agreement for the purposes
of, and only to be bound by and conferred rights in accordance with,
Schedule 21 thereto in the capacity of Meter Operator Party; and
(C) the New Meter Operator Party has requested that it be admitted as a
Meter Operator Party pursuant to paragraph 3 of Schedule 21 to the
Pooling and Settlement Agreement and each of the Parties and Meter
Operator Parties hereby agrees to such admission.
NOW IT IS HEREBY AGREED as follows:-
1. Unless the context otherwise requires, words and expressions defined in
the Pooling and Settlement Agreement used for the purposes of Schedule
21 to the Pooling and Settlement Agreement shall bear the same meanings
respectively when used herein.
2. The Nominee (acting on behalf of each of the Parties and Meter Operator
Parties) hereby admits the New Meter Operator Party as an additional
Meter Operator Party under Schedule 21 to the Pooling and Settlement
Agreement on the terms and conditions hereof and with effect from
[insert effective date of admission].
3. The New Meter Operator Party hereby accepts its admission as a Meter
Operator Party and undertakes with the Nominee (acting on behalf of
each of the Parties and Meter Operator Parties) to perform and to be
bound by the terms and conditions of Schedule 21 to the Pooling and
Settlement Agreement as a Meter Operator Party as from the [insert
effective date of admission].
4. For all purposes in connection with the Pooling and Settlement
Agreement the New Meter Operator Party shall as from the [insert
effective date of admission] be treated including for the purposes of
paragraph 2 of Schedule 21 to the Pooling and Settlement Agreement as
if it had been a signatory of the Pooling and Settlement Agreement as a
Meter Operator Party and as if this Agreement were part of the Pooling
and Settlement Agreement, and the rights and obligations of the Parties
and Meter Operator Parties shall be construed accordingly.
5. The New Meter Operator Party, the Parties and the Meter Operator
Parties expressly acknowledge and confirm that, pursuant to paragraph
2.1 of Schedule 21 to the Pooling and Settlement Agreement with effect
from [insert effective date of admission] the New Meter Operator Party
shall only be bound by, and conferred rights in accordance with,
Schedule 21 to the Pooling and Settlement Agreement in the sole
capacity of Meter Operator Party.
6. The New Meter Operator Party expressly consents to be bound by the
provisions of paragraphs 2.2 and 2.3 of Schedule 21 to the Pooling and
Settlement Agreement.
7. This Agreement and the Pooling and Settlement Agreement shall be read
and construed as one document and references in the Pooling and
Settlement Agreement to the Pooling and Settlement Agreement (howsoever
expressed) shall be read and construed as references to the Pooling and
Settlement Agreement and this Agreement.
8. This Agreement shall be governed by and construed in all respects in
accordance with English law and the provisions of Clauses 83 and 84 of
the Pooling and Settlement Agreement as incorporated into Schedule 21
thereto by paragraph 24 thereof shall apply hereto mutatis mutandis.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the date and year first above written.
[New Meter Operator Party]
By:
Notice details (Clause 75 of the Pooling and Settlement Agreement as
incorporated into Schedule 21 thereto by paragraph 24 thereof)
Address:
Telex number:
Facsimile number:
Attention:
[Nominee]
(for and on behalf of each of the parties (including Meter Operator Parties) to
the Pooling and Settlement Agreement)
By:
ANNEX 4
List of Existing Meter Operator Parties
Qualifying under the Transitional Arrangements
Derwent Cogeneration Limited Eastern Group plc East Midlands Electricity plc Elm
Energy & Recycling (UK) Limited Humber Power Limited Joseph Crosfield & Sons,
Limited London Electricity plc Manweb plc Marc Rich & Co. AG Medway Power
Limited Meter Operators Limited Midlands Electricity plc The National Grid
Company plc National Power PLC Northern Electric plc NORWEB plc Nuclear Electric
plc PowerGen plc Schlumberger Industries Limited Scottish Hydro-Electric PLC
SEEBOARD plc Southern Electric plc South Wales Electricity plc South Western
Electricity plc Teesside Power Limited Yorkshire Electricity Group plc
ANNEX 5
Diagrams
ANNEX 6
List of Existing Meter Operator Parties
Control Devices and Services Limited Derwent Cogeneration Limited E Squared
Limited Eastern Group plc East Midlands Electricity plc Elm Energy & Recycling
(UK) Limited Humber Power Limited Joseph Crosfield & Sons, Limited Keadby
Generation Limited London Electricity plc Manweb plc Marc Rich & Co. AG Medway
Power Limited Meter Operators Limited Midlands Electricity plc Mission Energy
Services Limited The National Grid Company plc National Power PLC Northern
Electric plc Northern Energy Services Limited NORWEB plc Nuclear Electric plc
PowerGen plc Powermet Limited Schlumberger Industries Limited Scottish
Hydro-Electric PLC Scottish Power plc SEEBOARD plc Slough Electricity Supplies
Limited Southern Electric plc South Wales Electricity plc South Western
Electricity plc Teesside Power Limited Yorkshire Electricity Group plc
SCHEDULE 22
1998 PROGRAMME FUNDING AND COST RECOVERY
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Schedule, except where the context otherwise
requires:
"1998 Programme" means the programme of work undertaken by the
Pool to establish the systems and processes (including the
EAC/AA System, the ISRA System and the NHH Data Aggregation
System) to support the trading and settlement system in
England and Wales to facilitate the full introduction of a
competitive supply market on 1st April, 1998, as described in
the Operational Framework;
"1998 Programme Costs" means the development and implementation
costs of the 1998 Programme comprising the following
(without double-counting):-
(a) the costs and expenses of implementing Approved Funding
Tranches approved in the period until the
Implementation Date; and
(b) Accrued Costs,
in so far as such costs relate to the 1998 Programme but, for
the avoidance of doubt, shall exclude those costs and charges
to be paid by the Scottish PESs or Scottish Settlements
pursuant to section 9 of Schedule 23;
"1998 Sub-Committees" means the sub-committees, the
Programme Board and project boards established to
develop and implement the 1998 Programme;
"Accrued Costs" means the costs accrued in relation to the
1998 Programme prior to 1st April, 1996, which the Pool
Members agree amount to (pound)2,878,000 at 1st April, 1996,
together with interest calculated at the base rate of Barclays
Bank PLC from time to time compounded, with monthly rests,
until the date of payment, which costs are repayable in
accordance with sub-section 2.4;
"Aggregate Charging Limit" or "ACL" means the aggregate amount
of 1998 Programme Costs recoverable by the Public Electricity
Suppliers pursuant to Section 8;
"Approved Funding Tranches" means the Funding Tranches
approved by the Steering Group in accordance with sub-section
3.4 or by Public Electricity Suppliers in accordance with
sub-section 7.2;
"EAC/AA System" means the estimation of annual consumption and
annualised advance software and systems which are to be
developed for the benefit of Pool Members pursuant to the 1998
Programme;
"EPFAL" means Energy Pool Funds Administration Limited
(registered number 2444187) whose registered office is situate
at 185 Park Street, London SE1 9DY or such other person as may
be appointed as its successor from time to time as Pool Funds
Administrator pursuant to Schedule 15;
"Financing Costs" or "FC" means the amount of costs to be
incurred and recovered by the Public Electricity Suppliers in
respect of their financing of 1998 Programme Costs, such
amount being equal to interest upon 1998 Programme Costs at
the base rate of Barclays Bank PLC from time to time
compounded, with monthly rests, accruing from the date of
payment by the Public Electricity Suppliers of such 1998
Programme Costs, until the date the Public Electricity
Suppliers are reimbursed in accordance with Section 8;
"Funder" means a person for the time being being party to this
Agreement who is a Public Electricity Supplier or a Scottish
PES;
"Funding Tranches" means individual and groups of work
packages submitted for approval by the Steering Group or
Public Electricity Suppliers in accordance with sub-section
3.4 or, as the case may be, Section 7;
"Implementation Date" means the date on which the first of
the following occurs:
(a) a competitive supply market begins to operate in
respect of customers below 100kW;
(b) the Executive Committee requires work on the 1998
Programme to cease as agreed or sanctioned by the
Secretary of State or the Director; and
(c) the systems and processes developed by the Pool
required to facilitate the beginning of the
competitive supply market in respect of customers
below 100kW would be able to operate, as determined by
an independent expert jointly appointed by the Public
Electricity Suppliers, the Chief Executive and the
Director, but are not capable of operating because of
other circumstances,
but in any event no earlier than 1st April, 1998;
"ISRA System" means the initial settlement and reconciliation
software and systems for electricity trading in England and
Wales which are to be developed for the benefit of Pool
Members pursuant to the 1998 Programme;
"NHH Data Aggregation System" means the non half hour data
aggregation software and systems which are to be developed for
the benefit of Pool Members pursuant to the 1998 Programme;
"Non-paying Funder" has the meaning ascribed to that term in
paragraph 2.3.3;
"Operational Framework" means the 1998 Operational Framework
of the Pool (Release 4.2) submitted to the Director as of 31st
March, 1996;
"Other Pool Members" has the meaning ascribed to that term
in Schedule 23;
"PES Votes" means, in relation to a Public Electricity
Supplier, the number of votes to which such Public Electricity
Supplier is entitled from time to time, determined in
accordance with Section 6;
"Pool" means the Electricity Pool of England and Wales;
"Programme Board" means the 1998 Programme Management Board
established by the Executive Committee to monitor, review and
oversee implementation of the 1998 Programme;
"Programme Budget" means an estimate of the overall cost of
implementing the 1998 Programme, including detailed cost
estimates for each element of the 1998 Programme required to
be incurred, each element to be broken down into all
identified Funding Tranches with each Funding Tranche to
contain the details of the timing of the work, the scope of
work and the likely costs and expenses to be incurred in its
performance, approved in accordance with Section 5;
"Programme Share" means, in relation to a Public Electricity
Supplier or a Scottish PES, the share of 1998 Programme Costs
of such Public Electricity Supplier or (as the case may be)
such Scottish PES, determined in accordance with Section 6;
"Requisite Proportion" means, in the case of the approval by
Public Electricity Suppliers in writing or in separate meeting
of the matters referred to:
(a) in paragraphs 7.2(a) and 7.2(c), 65 per cent.; and
(b) in paragraph 7.2(b), 50 per cent.,
in the case of written consent, of the total PES Votes of all
Public Electricity Suppliers and, in the case of a separate
general meeting, of the total PES Votes of those Public
Electricity Suppliers as (being entitled to do so) vote in
person or by proxy at the relevant separate general meeting of
which notice specifying the intention to propose the
resolution has been duly given;
"Scottish PES" means Scottish Hydro-Electric PLC and
Scottish Power plc;
"Scottish Settlements" means Scottish Electricity
Settlements Limited (registered in Scotland number
SC169212);
"Steering Group" means the 1998 Programme Steering Group
established pursuant to Section 3, save that if the Executive
Committee so determines, such Steering Group may be disbanded,
in which case the Executive Committee shall act as and have
the same rights and obligations as the Steering Group for the
purposes of this Schedule, as such rights and obligations are
set out in Section 3, and in that event references in this
Schedule to a member of the Steering Group appointed by a
member of the Executive Committee appointed by Public
Electricity Suppliers shall be read as references to any
member of the Executive Committee appointed by Public
Electricity Suppliers; and
"Total 1998 Programme Costs" has the meaning given to it in
Section 8.1.3.
1.2 Interpretation: In the event of any inconsistency or conflict
between the provisions of this Schedule and the other
provisions of the Agreement in relation to the 1998 Programme
Costs or the Operational Framework, the provisions of this
Schedule shall, unless otherwise expressly provided, prevail.
2. PROGRAMME FUNDING
2.1 Programme Costs: All 1998 Programme Costs shall be paid or
reimbursed by Public Electricity Suppliers and the Scottish
PESs or by a person or persons on their behalf in accordance
with this Schedule.
2.2 Allocation of 1998 Programme Costs after 1st April, 1996: In
respect of each month from (and including) April 1996, the
1998 Programme Costs incurred in such month shall be allocated
amongst Public Electricity Suppliers and the Scottish PESs
according to their respective Programme Shares.
2.3 Payment and collection:
2.3.1 EPFAL shall collect from Public Electricity Suppliers
and the Scottish PESs the amounts which they are
obliged to pay towards the 1998 Programme Costs and
each Public Electricity Supplier and each Scottish PES
will be obliged to pay its proportionate share of the
1998 Programme Costs (together with Value Added Tax
thereon, if applicable) against receipt of any invoice
therefor issued by EPFAL.
2.3.2 EPFAL shall arrange for collection from each Public
Electricity Supplier and each Scottish PES of its
proportionate share of the 1998 Programme Costs in
such manner as may be agreed by EPFAL with the Public
Electricity Suppliers from time to time (which may
include collection in advance) and Public Electricity
Suppliers and the Scottish PESs shall comply with such
collection procedures and, in particular, shall make
payment within the time period prescribed by such
procedures.
2.3.3 If any Public Electricity Supplier or Scottish PES
fails to pay an amount properly due under this
Schedule within fifteen (15) days of the due date for
such payment (such Public Electricity Supplier or
Scottish PES being a "Non-paying Funder") each
-----------------
Pool Member (other than the Non-paying Funder) shall
be severally liable for its Contributory Share
(calculated on the basis that the Points allocated to
the defaulting Non-paying Funder are disregarded) and
EPFAL shall accordingly be entitled to recover the due
proportion of that amount from each Pool Member (other
than the Non-paying Funder). In that event, EPFAL
shall advise each Pool Member of the amount payable by
invoice despatched to each Pool Member and each Pool
Member shall pay the amount advised in the relevant
invoice within fifteen (15) days after the invoice
date.
2.3.4 A Non-paying Funder shall indemnify and keep
indemnified each Pool Member on demand against all
sums properly paid by such Pool Member pursuant to
this sub-section 2.3.
2.3.5 Each Pool Member shall give notice to the Pool Funds
Administrator before instituting any action or
proceedings in any court to enforce payments due to it
pursuant to this Schedule. Upon receipt of any notice
under this paragraph 2.3.5, the Pool Funds
Administrator will as soon as practicable notify the
Executive Committee, all Pool Members and the
Director. The provisions of sub-section 24.4 of
Schedule 11 shall apply mutatis mutandis in respect of
any payment due from a Non-paying Funder pursuant to
this Schedule.
2.3.6 Upon EPFAL becoming aware of a Public Electricity
Supplier or a Scottish PES becoming a Non-paying
Funder, it shall notify the Executive Committee, the
remaining Pool Members and the Director, and the
Executive Committee shall convene and cause to be
convened a general meeting of Pool Members as soon as
possible thereafter, which meeting will determine
whether any further 1998 Programme Costs shall be
incurred.
2.3.7 The provisions of paragraphs 15.2.3, 15.2.4 and
sub-section 15.3 of Schedule 15 shall in any event
apply mutatis mutandis in respect of all payments
required to be made pursuant to this Section 2.
2.4 Accrued Costs: As soon as reasonably practicable, but in any
event no later than 1st April, 1997, the Pool Members will pay
each other such sums as will ensure that all Accrued Costs
have effectively been paid for or reimbursed only by Public
Electricity Suppliers and Scottish PESs and, as between Public
Electricity Suppliers and Scottish PESs, according to their
respective Programme Shares.
3. PROGRAMME EXPENDITURE AND THE STEERING GROUP
3.1 Authority to incur expenditure: No 1998 Programme Costs shall
be incurred by 1998 Sub-Committees other than pursuant to
Approved Funding Tranches.
3.2 Establishment: Pool Members hereby establish the Steering
Group as a sub-committee of the Executive Committee upon the
terms and subject to the conditions of this Schedule 22.
3.3 Steering Group Members: Each member of the Executive Committee
shall have the right to appoint a member of the Steering Group.
3.4 Approval of programme expenditure:
3.4.1 The Steering Group will notify each 1998 Sub-Committee
and such persons as may be nominated by each Public
Electricity Supplier in writing to the Steering Group
from time to time ("PES Nominees"), no later than 10
working days prior to holding any meeting of the date
that meeting will be held, save that, if at least 5
members of the Steering Group (including at least 3
appointed by members of the Executive Committee
appointed by Public Electricity Suppliers) consent, a
meeting of the Steering Group may be held on 48 hours'
notice.
3.4.2 Prior to approving any further work packages after
15th July, 1996, undertaking or commissioning any work
in respect of the 1998 Programme, the Programme Board
or any member of the Steering Group shall submit one or
more Funding Tranches to the Steering Group (with a
copy to all PES Nominees) at least 5 working days in
advance of any meeting of the teering Group, for
approval. Each Funding Tranche shall contain details of
the scope of the work proposed to be undertaken and a
budget of all costs associated with that work, together
with a comparison of all its elements against the
Programme Budget(or, if the Programme Budget shall not
then have been agreed, against the planned budget). Any
amount to be reimbursed in respect of costs incurred in
relation to work packages approved in the period
between 31st March, 1996 and 15th July, 1996 shall also
be the subject of a Funding Tranche or Funding Tranches
to be submitted to the Steering Group (with a copy to
all PES Nominees) by the Programme Board or any member
of the Steering Group at least five working days in
advance of a meeting of the Steering Group. Each such
Funding Tranche shall contain details of the scope of
the work undertaken and details of the costs associated
with it.
3.4.3At each meeting of the Steering Group, the Steering
Group shall resolve whether to approve Funding Tranches
duly submitted to it in accordance with paragraph
3.4.2, and, subject to any appeal to Public Electricity
Suppliers, any Funding Tranche so approved will become
an Approved Funding Tranche. Notwithstanding the
decision taken, any Public Electricity Supplier or any
member of the Steering Group appointed by a member of
the Executive Committee appointed by Public Electricity
Suppliers may, within 5 working days of the resolution
of the Steering Group, by notice in writing to the
Steering Group, appeal the matter to be considered by
Public Electricity Suppliers under sub-section 7.2. If
the Public Electricity Suppliers then resolve to
approve the Funding Tranche, it shall become an
Approved Funding Tranche. If the matter has been
appealed and Public Electricity Suppliers do not so
approve it, the Funding Tranche shall not be an
Approved Funding Tranche.
3.4.4As soon as the Programme Board becomes aware that the
cost of any work carried out pursuant to any Approved
Funding Tranche is likely to exceed the budget
considered by the Steering Group in paragraph 3.4.2
above, it shall forthwith prepare a revised budget and
deliver it to the Steering Group, at which point the
Steering Group and, if necessary, the Public
Electricity Suppliers, will follow the procedure set
out in paragraphs 3.4.2 and 3.4.3 in considering
whether to authorise the continuation of work under the
Approved Funding Tranche, in accordance with such
revised budget. If (a) the Steering Group does not
resolve to approve the revised budget, in accordance
with paragraph 3.4.2 or (b) after referral to Public
Electricity Suppliers in accordance with sub-section
7.2 they resolve not to approve the revised budget,
then the relevant 1998 Sub-Committee shall undertake no
work to implement the Approved Funding Tranche which
would lead to the cost of implementing the Approved
Funding Tranche exceeding the original budget. If the
revised budget is approved in accordance with paragraph
4.3.2 or, as the case may be, sub-section 7.2, the cost
of that Approved Funding Tranche will be adjusted
accordingly.
3.4.5 Any Steering Group member may by reasonable notice
request such information of the Chief Executive or the
Programme Board as may be reasonably required to
assess the performance of the 1998 Programme against
the Programme Budget and Approved Funding Tranches, it
being understood that the Chief Executive and the
Programme Board shall not be required to comply with
any such information request unless it is made by 3 or
more members of the Steering Group.
3.5 Voting: Any question or matter considered by the Steering
Group shall be resolved by a simple majority of votes of
members of the Steering Group.
4. THE OPERATIONAL FRAMEWORK
4.1 Changes to Operational Framework: Subject to sub-section 4.2,
any addition to, deletion from or other change to the
Operational Framework by or on behalf of Pool Members shall be
made only with the prior approval of Pool Members in general
meeting.
4.2 Effect on 1998 Programme Costs: If any addition to, deletion from
or other change to the Operational Framework may lead to an
increase in the 1998 Programme Costs then, unless such addition,
deletion or other change has been approved by the Public
Electricity Suppliers in writing or in separate general meeting,
the proposed addition, deletion or other change shall not take
effect unless Pool Members so resolve (in which case any costs
incurred as a result of the addition, deletion or other change in
question shall not be 1998 Programme Costs).
5. PROGRAMME BOARD AND PROGRAMME BUDGET
5.1 Constitution of the Programme Board: At all times, the
Programme Board shall comprise three senior users, one senior
technical user (together the "Senior Users") and the Chief
Executive. One of the Senior Users shall be an appointee of
all Pool Members other than Public Electricity Suppliers, and
the other three shall be appointees of the Public Electricity
Suppliers.
5.2 Voting: It is the intention of Pool Members that the Programme
Board shall resolve matters by way of consensus.
5.3 Preparation of the Programme Budget: The Programme Board shall
prepare and submit a draft programme budget by no later than 15th
July, 1996 for approval by the Steering Group. The procedure for
approval of the draft programme budget shall follow that for
approval of Funding Tranches in paragraphs 3.4.2 and 3.4.3, save
that if either the Steering Group or Public Electricity Suppliers
do not approve the draft programme budget, they shall notify the
Programme Board of any areas requiring revision and the Programme
Board shall, as soon as reasonably practicable after such
notification, re-submit the draft programme budget to the
Steering Group. Once the draft programme budget is approved it
shall be the Programme Budget.
6. PROGRAMME SHARES AND PES VOTES
6.1 Programme Shares : The Programme Share of each Public
Electricity Supplier and each Scottish PES shall be that set
opposite its name in column 2 of the table in sub-section 6.3.
6.2 PES Votes: The PES Vote of each Public Electricity Supplier
shall be that set opposite its name in column 3 of the table
in sub-section 6.3.
6.3 Table:
Column 1 Column 2 Column 3
Name of Funder rogramme Shares PES Votes
Eastern Group plc 12.64% 13.82%
East Midlands Electricity plc 8.79% 9.61%
London Electricity plc 7.76% 8.50%
Manweb plc 5.19% 5.71%
Midlands Electricity plc 8.81% 9.64%
Northern Electric plc 4.97% 5.44%
NORWEB Plc 8.21% 8.99%
Scottish Hydro-Electric PLC 2.66% Not applicable
Scottish Power plc 5.97% Not applicable
SEEBOARD PLC 8.14% 8.91%
Southern Electric plc 10.74% 11.75%
South Wales Electricity plc 3.34% 3.64%
South Western Electricity plc 5.67% 6.21%
Yorkshire Electricity Group plc 7.11% 7.78%
6.4 Reopener: If the aggregate amount of the 1998 Programme Costs as
projected under the 1998 Programme at 31st December, 1997 exceeds
the budgeted figure for the 1998 Programme Costs as at 1st
January, 1997 (which is agreed only for these purposes to
be(pound)58,000,000), the Programme Shares of the Funders shall
promptly be recalculated by or on behalf of the Funders in
accordance with the principles set out in the document entitled
"Costing Estimates for Scottish Contribution to Pool Programme"
dated 13th December, 1996 (a copy of which has been initialled by
the Chief Executive for the purposes of identification only), and
column 2 of the table in sub-section 6.3 shall be amended
accordingly.
6.5 Merger and adjustment: In the event of any merger between one or
more Funders any successor company shall have the aggregate
Programme Shares and PES Votes of its predecessors. Any successor
to part only of the authorised area (as such term is defined in
its PES Licence) of a Public Electricity Supplier and the Public
Electricity Supplier retaining the other part shall have such PES
Votes and Programme Shares as the Director shall determine. Any
successor to part only of the authorised supply area (as such
term is defined in the PES Licence of the relevant Scottish PES)
of a Scottish PES and the Scottish PES retaining the other part
shall have such Programme Shares as the Director shall determine.
7. PES MEETINGS
7.1 PES Meetings: The following provisions of this Section 7 shall
apply to separate general meetings of Public Electricity
Suppliers.
7.2 Requirements for PES Approval: The following matters shall
require Public Electricity Suppliers to give their approval by
the Requisite Proportion in separate general meeting, or by
the Requisite Proportion of Public Electricity Suppliers
giving their approval in writing to take effect:
(a) the approval of Funding Tranches by way of appeal under
sub-section 3.4;
(b) the approval of any addition to, deletion from or
other change to the Operational Framework which may
lead to an increase in the 1998 Programme Costs; and
(c) any addition to, deletion from or other change to this
Schedule 22 (other than, for the avoidance of doubt,
the adoption of detailed drafting of the provisions
relating to the recovery of 1998 Programme Costs in
accordance with paragraph 8.2.3).
7.3 General Provisions: The provisions of Part III of the
Agreement relating to general meetings of Pool Members shall
apply mutatis mutandis to separate general meetings of Public
Electricity Suppliers, but so that:-
(a) the necessary requirement for notice in writing to be
given of any such separate general meeting shall be 5
working days rather than the period in Clause 9.3;
(b) Clause 10.9 shall not apply although the Pool Auditor
and the Director or its or his duly authorised
representative shall have the right to attend and
speak (but not vote) at such separate general
meetings;
(c) such separate general meetings shall be convened by
the Secretary upon receipt of a request from a Public
Electricity Supplier or a member of the Steering Group
appointed by an Executive Committee Member appointed
by Public Electricity Suppliers;
(d) the necessary quorum shall be 6 or more Public
Electricity Suppliers present in person together
representing 50 per cent. or more of the aggregate
number of PES Votes of all Public Electricity
Suppliers and if no quorum is present within half an
hour from the time appointed for the separate general
meeting, the separate general meeting shall be
adjourned until the following working day;
(e) references to Total Weighted Votes shall be
substituted by references to PES Votes; and
(f) notice of any such separate general meeting need to be
given only to those entitled to attend the same,
and any resolution put to any such separate general meeting
shall, to be passed, require the Requisite Proportion of votes
in favour.
8. RECOVERY OF 1998 PROGRAMME COSTS
8.1 Calculation of Aggregate Charging Limit: The Aggregate
Charging Limit shall be calculated in the following
manner:-
8.1.1 if Total 1998 Programme Costs are less than the Lower
Limit then:
[OBJECT OMITTED]
8.1.2 if Total 1998 Programme Costs are equal to or greater
than the Lower Limit and less than or equal to the
Upper Limit then:
ACL = T1998 PC + FC; and
8.1.3 if Total 1998 Programme Costs are greater than the Upper
Limit then:
[OBJECT OMITTED]
in each case, where, subject to the provisions set out
below:
the Lower Limit ("LL") = (pound)43,500,000;
the Upper Limit ("UL") = (pound)53,500,000; and
the Total 1998 Programme Costs ("T1998 PC") =
the aggregate amount of 1998 Programme Costs
allocated to Public Electricity Suppliers in
England and Wales according to their
respective Programme Shares,
save that if, as a result of any addition to, deletion
from or other change to the Operational Framework
and/or the adoption of Approved Funding Tranches
pursuant to sub-section 3.4 or Section 7 outside the
scope of the Operational Framework, the Total 1998
Programme Costs are changed by any amount in excess of
(pound)50,000 then, subject to prior approval by the
Director, both the Lower Limit and the Upper Limit
shall be adjusted by the amount of such change.
8.2 Recovery by Public Electricity Suppliers from under 100kW
customers:
8.2.1The ACL is to be recovered, with allowance being made for
Financing Costs, over a maximum period of 5 years from the
Implementation Date from all suppliers of customers below 100kW
on the basis of a charge per megawatt hour supplied. The Public
Electricity Suppliers shall be entitled to recover the ACL in
proportion to the 1998 Programme Costs contributed by them (the
Public Electricity Suppliers' proportions being grossed up for
this purpose to aggregate 100 per cent.). If, for reasons other
than force majeure (as defined in paragraph 8.2.2 below), the
Implementation Date is later than 1st April, 1998, the Public
Electricity Suppliers or their agents will be able to recover a
proportionately lesser amount.
8.2.2 If, by reason of force majeure (which for these
purposes means any delay as a result of the
requirements of the Director or the Secretary of State
or any exceptional circumstances outside the control
of the Pool), the 1998 Programme is delayed or not
implemented, full cost recovery of the ACL shall be
made.
8.2.3 The principles for recovery set out in this
sub-section 8.2 require further detailed drafting.
Pool Members undertake to use their reasonable
endeavours to agree the detailed drafting by 1st June,
1997.
8.3 Recovery by Scottish PESs: Scottish PESs shall be entitled to
recover from third parties their respective contributions
towards the 1998 Programme Costs in accordance with the terms
of their agreement with the Director (if any).
9. SCHEDULE 22 CEASING TO HAVE EFFECT
Without prejudice to any accrued rights or liabilities, the provisions
of this Schedule 22 shall cease to have effect on the date following
that on which the final payment has been made to the last Public
Electricity Supplier to be reimbursed its due proportion in respect of
1998 Programme Costs and Financing Costs pursuant to Section 8.
SCHEDULE 23
SCOTTISH SETTLEMENTS
DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Schedule and the Scots Subsidiary
Documents, except where the context otherwise requires:
"1998 Contractor" means for the time being and from time to
time a contractor employed or retained by or on behalf of or
on the instructions of Pool Members to undertake work or to
provide services in relation to the design, development,
testing, implementation, operation or maintenance of the 1998
Systems (and includes any sub-contractor of such a
contractor);
"1998 Deliverables" means the work product of a 1998
Contractor under its contract or arrangement with Pool Members
(or their agent) in relation to the 1998 Programme;
"1998 Documentation" means the documentation prepared for the
benefit of Pool Members in connection with the 1998 Programme
relating to the design, development, testing, implementation,
operation and/or maintenance of the Relevant 1998 Systems and
for the time being and from time to time listed or referred to
in Part B of Scots Subsidiary Document 1;
"1998 Programme" has the meaning given to that term in
Schedule 22;
"1998 Systems" means the systems and processes (including the
ISRA System) supporting the central electricity trading and
settlement system in England and Wales which are to be
developed for the benefit of Pool Members pursuant to the 1998
Programme;
"Analysis" has the meaning given to that term in Scots
Subsidiary Document 3;
"Combined Members" means the members of the Chief Executive's
Office, the Executive Committee, the Committee Members and the
Other Pool Members;
"Developed Material" has the meaning given to that term in
paragraph 4.5(B);
"EAC/AA System" has the meaning given to that term in
Schedule 22;
"Existing Pool Documentation" means the documentation relating
to the rules and procedures for the operation of the central
electricity trading and settlement system in England and Wales
and for the time being and from time to time listed or
referred to in Part A of Scots Subsidiary Document 1;
"IAR System" means the control system and processes that are
necessary to facilitate initial allocation to suppliers in the
authorised supply areas of the Scottish PESs (as defined in
the PES Licence of the relevant Scottish PES) and
reconciliation of all the electricity consumed in those
authorised supply areas within a bulk supply point group;
"ISRA Documentation" means the documentation prepared for the
benefit of Pool Members relating either to the engagement of a
1998 Contractor for the initial settlement and reconciliation
function contemplated by the 1998 Programme or to the design,
development, testing and trialing of the ISRA System, and in
each case for the time being and from time to time listed or
referred to in Part C of Scots Subsidiary Document 1;
"ISRA System" has the meaning given to that term in Schedule
22;
"Logica" means Logica UK Limited (registered number: 947968);
"Logica Contract" means the agreement dated 11th September,
1996 and made between Logica and Energy Pool Funds
Administration Limited;
"NHH Data Aggregation System" means the non half hour data
aggregation software and systems which are to be developed for
the benefit of Pool Members pursuant to the 1998 Programme;
"Other Pool Members" means all the Pool Members other than the
Scottish PESs (and, where the context so admits, includes any
person acting on their behalf for the purposes of this
Schedule and the Scots Subsidiary Documents);
"Pool 1998 Software" means the software for the Relevant 1998
Systems (excluding all operating system software for all of
the 1998 Systems) for the time being and from time to time
listed or referred to in Scots Subsidiary Document 2;
"Programme Board" has the meaning given to that term in
Schedule 22;
"Programme Liaison Officer" means the 1998 Programme's liaison
officer nominated for the time being and from time to time by
or on behalf of the Other Pool Members in accordance with
Scots Subsidiary Document 4;
"Relevant 1998 Systems" means the 1998 Systems other than the
EAC/AA System and the NHH Data Aggregation System and
excluding all Support Services and all hardware;
"Required Documentation" means the 1998 Documentation, the
Existing Pool Documentation, the
ISRA Documentation and the Support Documentation;
"Responsible Officers" has the meaning given to that term in
Scots Subsidiary Document 4;
"Scots 1998 Licence" has the meaning given to that term in
sub-section 4.2;
"Scots Contract" has the meaning given to that term in
sub-section 6.1;
"Scots Contractor" has the meaning given to that term in
paragraph 4.5(B);
"Scots Due Date" has the meaning given to that term in
sub-section 9.3;
"Scots Licence-Back" has the meaning given to that term
in paragraph 4.5(H);
"Scots Licensee" has the meaning given to that term in
sub-section 4.2;
"Scots Subsidiary Documents" means each of the documents
identified and agreed to be treated as a Scots Subsidiary
Document for the purposes of this Schedule by the Scottish
PESs and the Executive Committee (or a nominated sub-committee
of the Executive Committee), as the same may be amended or
substituted from time to time with their prior written
consent. Each Scots Subsidiary Document shall be numbered and
references in this Schedule to "Scots Subsidiary Document `n'"
shall be to the relevant numbered Scots Subsidiary Document;
"Scottish PESs" has the meaning given to that term in
Schedule 22;
"Scottish Settlements" means Scottish Electricity Settlements
Limited, a private limited liability company incorporated in
Scotland with registered number SC169212 jointly owned by the
Scottish PESs for the purposes of managing and implementing
the Scottish Settlements Arrangements (and includes any
successor company);
"Scottish Settlements Arrangements" means the business of
developing, operating and maintaining systems, processes and
arrangements in the authorised supply areas (as defined in the
PES Licence of the relevant Scottish PES) of the Scottish PESs
pursuant to their obligations as holders of PES Licences, and
includes the Scottish Settlements Project;
"Scottish Settlements Project" means the project established
and managed by Scottish Settlements that will develop systems,
processes and arrangements within the scope and as part of the
Scottish Settlement Arrangements;
"SSP Liaison Officer" means the liaison officer of the
Scottish PESs (or, as the case may be, Scottish Settlements)
nominated for the time being and from time to time by them in
accordance with Scots Subsidiary Document 4;
"Support Documentation" means any documentation provided by
the Programme Liaison Officer as clarification to any of the
1998 Documentation, the Existing Pool Documentation or the
ISRA Documentation in response to a request from the SSP
Liaison Officer pursuant to Scots Subsidiary Document 4;
"Support Services" means:-
(A) support services for systems tests, integration tests
and trialing;
(B) services for maintenance, error correction, change
implementation and new system releases; and
(C) training services;
"Systems Requirement Request" has the meaning given to that
term in Scots Subsidiary
Document 3; and
"Systems Requirement Response" has the meaning given to that
term in Scots Subsidiary Document 3.
1.2 Interpretation: In the event of any inconsistency or
conflict between the provisions of this Schedule and the
other provisions of the Agreement (other than Schedule 22)
insofar as concerns the relationship of the Scottish
Settlements Arrangements to the 1998 Programme or the
Operational Framework, the provisions of this Schedule
shall, unless otherwise expressly stated, prevail. In the
event of any other inconsistency or conflict between the
provisions of this Schedule and the other provisions of the
Agreement, such other provisions shall prevail.
1.3 Scots Subsidiary Documents: Each of the Parties undertakes to
comply with the Scots Subsidiary Documents insofar as
applicable to such Party. The Executive Committee shall
provide copies of the Scots Subsidiary Documents to a Party
upon request and at such Party's cost.
1.4 Trusteeship: The Other Pool Members hold the benefit of this
Schedule for themselves and as trustee and agent for the
Executive Committee, the Committee Members and the members of
the Chief Executive's Office.
1.5 Other Pool Members: Subject to sub-section 5.3, the
provisions of Part III of the Agreement shall apply mutatis
mutandis to meetings of and decisions taken by the Other
Pool Members save that neither of the Scottish PESs nor
Scottish Settlements (if it is a Pool Member) shall be
entitled to attend, speak or vote at the relevant meeting or
otherwise to participate in the decision taking processes
and the voting procedures shall be adjusted in such manner
as the Pool Chairman in his sole discretion shall see fit to
make allowance for the prohibition on the Scottish PESs and
Scottish Settlements from voting.
PURPOSE
2.1 Purpose: This Schedule, when read with Schedule 22 and the
Scots Subsidiary Documents, sets out the terms and
conditions upon and subject to which the Scottish PESs will
be entitled to have made available to them or Scottish
Settlements for the purposes of the Scottish Settlements
Arrangements certain documentation and systems written or
developed for or provided to Pool Members in connection with
the 1998 Programme and to propose changes thereto or
undertake customisation thereof solely for the purposes of
the Scottish Settlements Arrangements.
2.2 Scottish PESs as Pool Members: Save as varied or amended by or
pursuant to this Schedule, the Scottish PESs shall continue to
have their respective rights, responsibilities, obligations
and liabilities as Pool Members in addition to their rights,
responsibilities, obligations and liabilities under this
Schedule, Schedule 22 and the Scots Subsidiary Documents in
their capacity as Scottish PESs.
JOINT VENTURE AND GUARANTEE
3.1 Scottish Settlements: The Scottish PESs shall be entitled to
act for the purpose of the Scottish Settlements Arrangements
and this Schedule through Scottish Settlements. If required
by the Executive Committee, the Scottish PESs shall procure
that Scottish Settlements becomes a party to the Agreement,
appoints an agent for service of process in England and
undertakes directly in form and content reasonably
satisfactory to the Executive Committee the obligations on
its part contained in this Schedule and the Scots Subsidiary
Documents.
3.2 Information on Scottish Settlements: Each of the Scottish PESs
and Scottish Settlements shall promptly give the Other Pool
Members such information about the shareholdings in and
capital structure of Scottish Settlements and its business,
operations, assets and financial condition as the Executive
Committee may from time to time reasonably require and the
Other Pool Members shall keep all such information
confidential on and subject to the terms and conditions of
Clause 70 of the Agreement.
3.3 Guarantee: The Scottish PESs hereby jointly and severally and
irrevocably and unconditionally:
(A) guarantee to each of the Combined Members the due and
punctual observance and performance of all the terms,
conditions and covenants on the part of Scottish Settlements
contained in this Schedule and the Scots Subsidiary
Documents and agree to pay to each of the Combined Members
from time to time on demand any and every sum or sums of
money which Scottish Settlements shall at any time be liable
to pay to such Combined Member under or pursuant to this
Schedule or any of the Scots Subsidiary Documents and which
shall not have been paid at the time such demand is made;
and
(B) agree as a primary obligation to indemnify each of the Combined Members from
time to time on demand by the relevant Combined Member from and against any loss
directly incurred by such Combined Member as a result of any of the obligations
of Scottish Settlements under or pursuant to this Schedule or any of the Scots
Subsidiary Documents being or becoming void, voidable, unenforceable or
ineffective as against such Combined Member for any reason whatsoever, whether
or not known to such Combined Member or any other person.
3.4 Preservation of Rights:
3.4.1 The obligations of the Scottish PESs contained in this
Section 3 shall be in addition to and independent of
every other security which any of the Combined Members
may at any time hold in respect of any obligations of
Scottish Settlements under the Agreement.
3.4.2The obligations of the Scottish PESs contained in this
Section 3 shall constitute and be continuing obligations
notwithstanding any settlement of account or other matter or
thing whatsoever, and in particular but without limitation
shall not be considered satisfied by any intermediate
payment or satisfaction of all or any of the obligations of
Scottish Settlements under this Schedule or the Scots
Subsidiary Documents and shall continue in full force and
effect until final payment in full of all amounts owing by
Scottish Settlements under this Schedule and each of the
Scots Subsidiary Documents and satisfaction of all actual
and contingent obligations of Scottish Settlements under
this Schedule and each of the Scots Subsidiary Documents.
3.4.3 Neither the obligations of the Scottish PESs herein
contained nor the rights, powers and remedies
conferred in respect of the Scottish PESs upon the
Combined Members by this Schedule or any of the Scots
Subsidiary Documents or by law shall be discharged,
impaired or otherwise affected by:
(A) the winding-up, dissolution, administration
or re-organisation of Scottish Settlements or
any other person or any change in its status,
function, control or ownership;
(B) any of the obligations of Scottish
Settlements or any other person hereunder or
under any other security taken in respect of
any of its obligations under this Schedule or
any of the Scots Subsidiary Documents being
or becoming illegal, invalid, unenforceable
or ineffective in any respect;
(C) time or other indulgence being granted to
Scottish Settlements in respect of its
obligations under this Schedule or any of the
Scots Subsidiary Documents or under any such
other security;
(D) any amendment to, or any variation, waiver or
release of, any obligation of Scottish
Settlements under this Schedule or any of the
Scots Subsidiary Documents or under any such
other security;
(E) any failure to take, or fully to take, any
security contemplated hereby or otherwise
agreed to be taken in respect of the
obligations of Scottish Settlements under
this Schedule or any of the Scots Subsidiary
Documents;
(F) any failure to realise or fully to realise
the value of, or any release, discharge,
exchange or substitution of, any security
taken in respect of the obligations of
Scottish Settlements under this Schedule or
any of the Scots Subsidiary Documents; or
(G) any other act, event or omission which, but
for this paragraph 3.4.3, might operate to
discharge, impair or otherwise affect any of
the obligations of either of the Scottish
PESs herein contained or any of the rights,
powers or remedies conferred upon the
Combined Members by this Schedule or any of
the Scots Subsidiary Documents or by law.
3.4.4Any settlement or discharge between the Scottish PESs
and Scottish Settlements shall be conditional upon no
security or payment to the Combined Members or any of
them by the Scottish PESs or either of them or Scottish
Settlements or any other person on behalf of the
Scottish PESs or, as the case may be, Scottish
Settlements being avoided or reduced by virtue of any
provisions or enactments relating to bankruptcy,
insolvency, liquidation or similar laws of general
application for the time being in force and, if any
such security or payment is so avoided or reduced, the
Combined Members or the relevant one of them shall be
entitled to recover the value or amount of such
security or payment from the Scottish PESs subsequently
as if such settlement or discharge had not occurred.
3.4.5 None of the Combined Members shall be obliged before
exercising any of the rights, powers or remedies
conferred upon it in respect of the Scottish PESs by
this Schedule or any of the Scots Subsidiary Documents
or by law:
(A) to make any demand of Scottish Settlements;
(B) to take any action or obtain
judgment in any court against
Scottish Settlements;
(C) to make or file any claim or proof in a
winding-up or dissolution of Scottish
Settlements; or
(D) to enforce or seek to enforce any other
security taken in respect of any of the
obligations of Scottish Settlements under
this Schedule or any of the Scots Subsidiary
Documents.
3.4.6 The Scottish PESs agree that, until all amounts which
may be or become payable by Scottish Settlements under
or in connection with this Schedule and the Scots
Subsidiary Documents have been irrevocably paid in
full, neither of the Scottish PESs shall, after a
claim has been made or by virtue of any payment or
performance by it under this Clause 3:
(A) be subrogated to any rights, security or
moneys held, received or receivable by any of
the Combined Members (or any trustee or agent
on its behalf) or be entitled to any right of
contribution or indemnity in respect of any
payment made or moneys received on account of
the liability of such Scottish PES under this
Clause 3;
(B) claim, rank, prove or vote as a creditor of
Scottish Settlements or its estate in
competition with any of the Combined Members
(or any trustee or agent on its behalf); or
(C) receive, claim or have the benefit of any
payment, distribution or security from or on
account of Scottish Settlements, or exercise
any right of set-off as against Scottish
Settlements.
SCOTS 1998 LICENCE
4.1 Provision of Required Documentation: Subject to and
conditional upon payment and receipt of the sums set out or
referred to in sub-section 9.1(A) and to the terms and
conditions of the Scots 1998 Licence:
(A) the Scottish PESs and Scottish Settlements shall be
entitled to receive copies of the Required
Documentation; and
(B) Pool Members shall procure that such copies are made available to the
Scottish PESs (or, as the case may be, Scottish Settlements) promptly upon
request.
4.2 Grant of Scots 1998 Licence:
(A) Subject to and conditional upon payment and receipt of
the sum(s) set out or referred to in sub-section
9.1(B) and to the extent that Pool Members have the
right so to do, Pool Members grant the Scottish PESs
and Scottish Settlements (in this Section 4, each a
"Scots Licensee"), or shall procure the grant to the
Scots Licensee of, a perpetual, non-exclusive and
non-transferable licence (the "Scots 1998 Licence") to
use the Required Documentation and the Pool 1998
Software on the terms and conditions set out in the
following provisions of this Section 4.
(B) Pool Members confirm that they have full right to grant
the Scots Licensee or procure the grant to the Scots
Licensee of a perpetual, non-exclusive and
non-transferable licence to use (i) such of the
Required Documentation and Pool 1998 Software as is
made available to Pool Members under the Logica
Contract, excluding any software notified by or on
behalf of the Other Pool Members to the Scots Licensee
from time to time as being subject to a requirement for
a licence from a third party, and (ii) the Existing
Pool Documentation. Pool Members confirm that Logica
only has the right under the Logica Contract to
incorporate such third party software where the Pool
Members have agreed the terms upon which a licence will
be available from the relevant third party. In respect
of any other Required Documentation or Pool 1998
Software, the Pool Members confirm that they shall use
reasonable endeavours (but without being obliged to
incur any material additional cost unless all such
additional cost is paid or reimbursed on demand by the
Scottish PESs or Scottish Settlements) to acquire in a
timely manner ownership of, or a right to grant a
licence to the Scots Licensee in respect of, the
intellectual property rights thereto.
4.3 Term of Scots 1998 Licence: The Scots 1998 Licence will commence as of 1st
January, 1997 and will continue until terminated in accordance with
sub-section 4.4.
4.4 Termination of Scots 1998 Licence:
(A) The Executive Committee shall have the right (without
prejudice to any other rights or remedies that the
Executive Committee or the Other Pool Members may
have) to terminate the Scots 1998 Licence immediately
by notice in writing to the Scots Licensee if:-
(i) the Scots Licensee is in material breach of
any of the provisions of Clauses 4.2, 4.5,
4.6, 4.7 and 4.8 and either such breach is
incapable of remedy or the breach continues
for fourteen days after notice in writing
specifying the breach and requiring it to be
remedied; or
(ii) an order is made or a resolution is passed for the
winding-up of the Scots Licensee, or if a provisional
liquidator is appointed in respect of the Scots
an administrative receiver) is appointed in respect of
the Scots Licensee or all or any of its assets or if
the Scots Licensee is unable to pay its debts within
the meaning of section 123 of the Insolvency Act 1986,
or if any voluntary arrangement is proposed under
section 1 of the Insolvency Act 1986 in respect of the
Scots Licensee; or
(iii anything analogous to any of the events in paragraph
(ii) above occurs with respect to the Scots Licensee or
its assets in any jurisdiction.
(B) If the Scots 1998 Licence is terminated under this
sub-section 4.4:
(i) the Scots Licensees will cease to have the right to use
the Required Documentation and the Pool 1998 Software;
(ii) the Scots Licensees shall within 30 days of
termination deliver to the Executive
Committee all the Required Documentation and
the Pool 1998 Software together with all
copies of them in the Scots Licensees'
possession or control and (if any Scots
Licensee fails to do so) the Executive
Committee or its agent shall have the right
to enter such Scots Licensee's premises and
repossess the Required Documentation and the
Pool 1998 Software and any copies of them;
and
(iii) the Scots Licensees will destroy any
programme or other series of instructions
contained in any memory device which is
derived from the Required Documentation
and/or the Pool 1998 Software and is in their
possession or control.
(C) Termination of the Scots 1998 Licence will not release
any of the Scots Licensees from any obligations
arising prior to termination or which expressly or by
implication become effective or continue to be
effective on or after the termination of the Scots
1998 Licence.
4.5 Scope of Scots 1998 Licence:
(A) The Scots Licensee shall have the right to use the
Required Documentation and the Pool 1998 Software only
for the purposes of the Scottish Settlements
Arrangements and shall not use the Required
Documentation or the Pool 1998 Software in any other
way.
(B) The Scots Licensee is licensed to copy, develop, alter
or modify the whole or any part of the Required
Documentation or Pool 1998 Software or combine it with
any other materials, in any such case only for the
purposes of the Scottish Settlements Arrangements (the
"Developed Material"), but will not permit any other
person to do
------------------
so except for a person at any time under contract to
the Scots Licensee to do so
(the "Scots Contractor"). The Scots Contractor will
not have any more extensive
----------------
right to use the Required Documentation or the Pool
1998 Software than the Scots Licensee has under this
Section 4.
(C) The Scots Licensee shall ensure the proper use,
supervision, management and control of the Required
Documentation and Pool 1998 Software and that the same
are properly protected at all times from unauthorised
access or use by any person.
(D) The Scots Licensee shall keep the Required
Documentation and Pool 1998 Software confidential and
shall only authorise access or disclosure to those
persons or categories of person for the time being and
from time to time listed or referred to in Scots
Subsidiary Document 6 and to whom access or disclosure
is strictly necessary to enable the Required
accordance with this Section 4. The Scots Licensee
shall ensure that each such person is aware of the
confidential nature of the Required Documentation and
Pool 1998 Software and keeps them confidential. This
paragraph shall not apply to any part of the equired
Documentation and Pool 1998 Software which has entered
the public domain other than as a result of any breach
of agreement or duty.
(E) The following obligations apply in relation to the use of
source code:
(i) all copies of any source code which is part
of the Required Documentation or Pool 1998
Software will be individually numbered and
the existence and location of each such copy
shall be notified by the Scots Licensee to
the Executive Committee; and
(ii) the Scots Licensee shall notify the Executive Committee of details of each
of its employees and those of any Scots Contractor who will have access to the
source code and, unless otherwise agreed by the Executive Committee, shall
ensure that each such employee will (before access) enter into an individual
confidentiality agreement in a form approved by the Executive Committee. The
Scots Licensee shall provide the Executive Committee with an original copy of
each such agreement and will ensure that, unless otherwise agreed by the
Executive Committee, no employee of the Scots Licensee or any Scots Contractor
has access to the source code except for those employees whose details have been
notified to the Executive Committee and are bound by such agreements.
(F) The Scots Licensee shall immediately bring to the
attention of the Executive Committee any infringement
or suspected infringement by any third party of any
rights in the Required Documentation or the Pool 1998
Software of which it becomes aware and shall, at the
Executive Committee's request and against payment of
its reasonable costs and expenses, take or join Pool
Members in taking such action as they may require for
the purpose of protecting such rights.
(G) Pool Members are not obliged under the Scots 1998
Licence to develop, maintain or enhance the Required
Documentation or the Pool 1998 Software.
(H) The Scots Licensees agree to grant Pool Members a
perpetual, royalty-free, non-exclusive licence to use
and exploit the Developed Material mutatis mutandis on
the same terms as the Scots Licence (the "Scots
Licence-Back") provided that:
(i) the Scots Licensees shall be entitled by notice to the
Executive Committee to designate particular parts of
the Developed Material as having commercial value where
the Scots Licensees decide reasonably and in good faith
that a material cost has been incurred in developing
the same. In any such case the Scots Licence-Back shall
be subject to the agreement between the Scottish
Licensees on the one hand and the Other Pool Members on
the other hand of a reasonable royalty reflecting an
appropriate proportion of such cost (such agreement not
to be unreasonably withheld or delayed); and
(ii) the Scots Licensees shall not be obliged to
license any part of the Developed Material
where the Scots Licensees believe reasonably
and in good faith that the same would confer
a significant competitive benefit on the
Other Pool Members and for that reason should
not be licensed to them.
(I) The Scots Licensees shall notify the Executive
Committee at least once every six months of all
Developed Material that has been produced during the
preceding six month period.
4.6 Reporting requirement: The Scots Licensee shall supply the
Executive Committee from time to time on request with a
statement signed by a director of the Scots Licensee which
certifies that the Required Documentation and Pool 1998
Software is being used only in accordance with this Section 4.
4.7 Access: The Scots Licensee shall grant the Executive Committee
or its nominee access upon reasonable prior notice to the
Scots Licensee's premises in order to audit the use of the
Required Documentation and Pool 1998 Software.
4.8 Indemnity: The Scottish PESs and Scottish Settlements shall
jointly and severally indemnify and keep indemnified the
Combined Members and each of them on demand against all direct
losses, costs, damages, expenses, liabilities and claims
suffered or incurred by any of the Combined Members arising
out of or in relation to any Scots Licensee's breach of any of
its obligations under this Section 4.
4.9 Further licences: Pool Members agree that the Scottish PESs
and Scottish Settlements shall be entitled to a licence to use
the EAC/AA System and the NHH Data Aggregation System on terms
and conditions comparable to those on which a licence to use
the same is offered to Public Electricity Suppliers generally.
SCOTTISH REQUIREMENTS AND THE RELEVANT 1998 SYSTEMS
5.1 Change to the Operational Framework: The provisions of
Schedule 22 shall govern any addition to, deletion from or
other change to the Operational Framework.
5.2 Change control: Subject to sub-section 5.1, the provisions of
Scots Subsidiary Document 3 shall govern the control of a
change (which shall include any request by the Scottish PESs
or Scottish Settlements for an additional requirement) to the
Relevant 1998 Systems insofar as the change concerns a change
to the Relevant 1998 Systems requested by the Scottish PESs or
Scottish Settlements for the purposes of the Scottish
Settlements Project.
5.3 Disputes over change control: If pursuant to any Scots Subsidiary
Document this sub-section is stated to apply and the relevant
Systems Requirement Request relates to changes in the
functionality of the Relevant 1998 Systems then, notwithstanding
the provisions of Part III of the Agreement, the determination of
the Executive Committee in relation to the matter shall be final,
conclusive and binding and there shall be no right of referral to
Pool Members in general meeting nor any right of appeal to the
Director and each Party expressly, irrevocably and
unconditionally waives all such rights of referral and appeal.
5.4 Other changes to the 1998 Programme: Pool Members acknowledge
that, in respect of any change to the 1998 Programme required by
the Scottish PESs (or, as the case may be, Scottish Settlements)
for the purposes of the Scottish Settlements Arrangements which
does not fall to be dealt with by sub-section 5.1 or 5.2, the
Scottish PESs (or, as the case may be, Scottish Settlements)
shall have the right, and shall be obliged, to use the change
control procedure established under the 1998 Programme and the
costs of any such change and the change control charges shall be
borne by the Scottish PESs (or, as the case may be, Scottish
Settlements) as if they were charges under sub-section 9.1 or, as
the case may be, 9.2.
1998 CONTRACTORS' SERVICES
6.1 Retaining 1998 Contractors:
(A) If the Scottish PESs (or either of them) or Scottish Settlements
wish to employ or retain any 1998 Contractor to undertake work or
provide services in relation to the Scottish Settlements Project
which is or are broadly equivalent to the work or services which
any 1998 Contractor is or are performing in relation to the 1998
Programme for the benefit of all Pool Members (including, for the
avoidance of doubt, the development of the EAC/AA System), the
Scottish PESs or (as the case may be, Scottish Settlements) shall
procure that, before they or it enter into a contract or
arrangement with such 1998 Contractor for such work or services
(the "Scots Contract"), the 1998 Contractor (or, where the 1998
Contractor is a sub-contractor, the principal
1998 Contractor) shall, unless the Executive Committee otherwise
resolves upon application made by the Scottish PESs (or, as the
case may be, Scottish Settlements), confirm in writing to Pool
Members (or a nominee on their behalf) in the terms set out in
paragraph 6.1(B).
(B) The terms referred to in paragraph 6.1(A) are that the entry into and
performance of the Scots Contract, either in itself or in conjunction with the
other contracts and arrangements of the relevant 1998 Contractor (including any
contacts or arrangements relating to the 1998 Programme), will not affect
adversely the performance of such 1998 Contractor's obligations to Pool Members
under its contract or arrangement with them (or their nominee) or cause or
otherwise result in such 1998 Contractor being in breach of any of its
obligations to Pool Members under its contract or arrangement with them (or
their nominee), to the intent that such confirmation shall constitute a legally
binding obligation of such 1998 Contractor under such contract or arrangement
with Pool Members (or their nominee).
6.2 List of 1998 Contractors: The Executive Committee shall
provide the Scottish PESs from time to time with an up-to-date
list of all the 1998 Contractors and a summary of the work or
services that they have been retained to perform.
6.3 No restriction: Nothing in this Section 6 shall preclude or
restrict the Scottish PESs or Scottish Settlements from
employing or retaining any person who is not a 1998 Contractor
to perform the work or services referred to in sub-section 6.1
or from employing or retaining any person who is a 1998
Contractor to perform work or services in the period after
completion of the 1998 Programme.
6.4 Liaison: The Scottish PESs (or, as the case may be, Scottish
Settlements) and the Other Pool Members (in each case through
their appointed representatives) shall liaise on a regular
basis (usually monthly) on the planning and manpower
requirements for the work and services referred to in
sub-section 6.1.
RELATIONSHIPS
7.1 Expert Groups: The Scottish PESs (or, as the case may be,
Scottish Settlements) shall have the right on the terms and
subject to the conditions set out in Scots Subsidiary Document
5 to attend meetings of those expert and systems delivery user
groups established under the 1998 Programme which are of
direct relevance to the Scottish Settlements Project.
7.2 1998 Contractor relationship:
(A) The Scottish PESs and Scottish Settlements shall not contact
or communicate directly with, or place any order with or
give any instruction to, any 1998 Contractor with respect to
any matter concerning the 1998 Programme, the 1998 Systems,
the Required Documentation or the Pool 1998 Software but
shall address all such communications to the Programme
Liaison Officer (in the form, where appropriate, of a
Systems Requirement Request) provided that the Scottish PESs
and Scottish Settlements shall have the right to contact or
communicate directly with (and in the case of (ii) and (iii)
below, to place orders with or give instructions to) a 1998
Contractor with respect to any such matter (but subject to
Section 4):-
(i) in the case and for the purposes of an
inspection approved by the Programme Board
(or otherwise determined to be made on appeal
from the decision of the Programme Board) in
accordance with paragraph (C) below;
(ii) in the circumstances and for the purposes described in sub-section 6.1; and
(iii) in the case of a determination of the Executive Committee that, in the
reasonable opinion of the Scottish PESs, is unfavourable to the Scottish PESs
(or, as the case may be, Scottish Settlements) in a significant respect where,
pursuant to sub-section 5.3, the determination of the Executive Committee is
final (but then only in relation to those matters which were the subject of that
determination and on the terms set out in sub-section 6.1),
provided that nothing in this paragraph (A) shall
prevent or restrict either of the Scottish PESs or
Scottish Settlements from contacting or communicating
directly with any 1998 Contractor with respect to work
or services required for the production of Developed
Material.
(B) The Scottish PESs and Scottish Settlements shall not
interfere with the performance by any 1998 Contractor
of any of its obligations in connection with the 1998
Programme.
(C) (i) If the Scottish PESs or Scottish
Settlements have a material concern that the
progress of work on the 1998 Programme is
such as to cause the date for completion of
the Scottish Settlements Project to be
delayed, the Scottish PESs and Scottish
Settlements shall have the right to request
inspection of work on the 1998 Programme in
accordance with paragraphs (C)(ii) and (iii)
below.
(ii) An application for inspection by the Scottish PESs or
Scottish Settlements referred to in paragraph (C)(i) shall
be made to the Programme Board with reasons in support and
details of the form of inspection required (it being
understood that any such inspection will normally be
conducted under the supervision of the Programme Board). The
Programme Board will give due consideration to any such
application and will notify the Scottish PESs (or, as the
case may be, Scottish Settlements) of its determination
whether the case for such an inspection has been made and,
if a case for an inspection has been made, the form that
such inspection is to take.
(iii) If the Programme Board determines that a case
for an inspection has been made, Pool Members
shall use all reasonable endeavours to
facilitate the carrying out of such
inspection in accordance with the
determination of the Programme Board.
(iv) If the Programme Board determines that a case
for an inspection has not been made, the
Scottish PESs in their capacity as Pool
Members shall have the right to refer the
matter to the Executive Committee for
determination and to appeal such
determination pursuant to the terms of this
Agreement.
(D) The Pool Members shall arrange for the Scottish PESs
(or, as the case may be, Scottish Settlements) to
receive copies of each 1998 Contractor's periodic
progress reports to the Programme Board or the 1998
Programme project boards on matters concerning the
1998 Programme after deletion of any information in or
accompanying any such report which is reasonably
considered by those administering the 1998 Programme
to be commercially sensitive .
(E) The Scottish PESs (or, as the case may be, Scottish
Settlements) shall be entitled at their own cost and
expense to attend and witness acceptance testing of
the ISRA System and to receive copies of the related
test logs as may be reasonably required by the
Scottish PESs (or, as the case may be, Scottish
Settlements).
NO REPRESENTATION OR LIABILITY
8.1 No representation or warranty: With the exception of the
confirmations given by the Pool Members in sub-section
4.2(B), none of the Combined Members makes or gives any
representation or warranty as to the suitability or fitness
of the Required Documentation or the Pool 1998 Software for
any particular purpose and all conditions, warranties and
representations whether express or implied as to the
Required Documentation or the Pool 1998 Software (including
as to its quality, fitness, operation or use) are excluded
to the fullest extent permitted by law.
8.2 No reliance: Each of the Scottish PESs (for itself and on
behalf of Scottish Settlements) hereby acknowledges that it
has not been induced to enter into the arrangements set out in
this Schedule and the Scots Subsidiary Documents by, nor has
it placed reliance on any prior representation or statement
(whether oral or in writing) made by, any of the Combined
Members or the 1998 Contractors.
8.3 Exclusion of certain types of loss: Each of the Scottish PESs
(for itself and on behalf of Scottish Settlements) hereby
acknowledges and agrees that, save as provided in sub-section
8.4, in no circumstances will any of the Combined Members be
liable to either of the Scottish PESs or Scottish Settlements
under this Schedule or the Scots Subsidiary Documents in
contract, tort (including negligence or breach of statutory duty)
or otherwise for loss (whether direct or indirect) of profit,
loss of revenue, loss of use, loss of contract or loss of
goodwill or for any indirect or consequential loss or damage
whatsoever.
8.4 No exclusion for death or personal injury: Nothing in this
Schedule shall exclude liability for death or personal injury
resulting from the negligence of a Party or any of its
officers, employees or agents.
8.5 Reasonableness of exclusion: Each of the Scottish PESs (for
itself and on behalf of Scottish Settlements) acknowledges
that it is aware of and understands the provisions in relation
to liability set out in this Section and in particular that,
given the level of charges made for the provision and use of
the Required Documentation and Pool 1998 Software, it is
reasonable for the Combined Members to exclude their liability
as provided for in this Section.
PAYMENTS
9.1 Charges: The Scottish PESs and Scottish Settlements shall be
jointly and severally liable to pay to the Other Pool Members
in accordance with sub-section 9.3:-
(A) in respect of the provision of the Required
Documentation identified within Part A of Subsidiary
Document 1, (pound)200,000;
(B) in respect of the grant of the Scots 1998 Licence, (pound)1 (receipt of
which is hereby acknowledged); (C) (without prejudice to paragraph 4.5(H)), in
respect of any maintenance, development or enhancement of the materials which
are the subject of the Scots 1998 Licence, such amount (if any) as may be agreed
from time to time by the Scottish PESs with the Executive Committee; and
(D) against presentation of invoices or such other types
of supporting evidence as Pool Members generally
receive in respect of Pool costs:-
(i) the agreed costs (including legal costs and expenses) of the
working group in preparing and negotiating this Schedule;
(ii) all other costs incurred in relation to the 1998 Programme
in establishing and operating the arrangements set out or
referred to in this Schedule or the Scots Subsidiary
Documents which would not otherwise have been incurred by
them including, without prejudice to the generality of the
foregoing, the costs of any additional staffing for the 1998
Programme and the costs of the Programme Liaison Officer and
the Responsible Officers; and
(iii) the costs of giving effect to any change to (which shall include any
additional requirement for) the Relevant 1998 Systems requested by the Scottish
PESs or Scottish Settlements.
9.2 Change control charges: Without prejudice to paragraph 9.1(D):-
(A) the Scottish PESs and Scottish Settlements shall be
jointly and severally liable to pay all sums incurred
in the preparation of a Systems Requirement Request.
(B) the Scottish PESs and Scottish Settlements shall be
jointly and severally liable to reimburse the Other
Pool Members all sums payable to the relevant 1998
Contractor in respect of the preparation of any
Analysis and all sums incurred in the preparation of a
Systems Requirement Response.
9.3 Due date for payment: Scottish PESs shall pay all sums payable
under sub-sections 9.1 and 9.2 within 30 days of receiving an
invoice for the same from the Other Pool Members or from EPFAL
or another nominated agent on their behalf (the "Scots Due
Date").
9.4 Charges exclusive of VAT: All sums payable under sub-sections
9.1 and 9.2 are exclusive of Value Added Tax which shall be
paid by the Scottish PESs (or, as the case may be, Scottish
Settlements) at the rate and in the manner prescribed by law
from time to time.
9.5 Default Interest: If the Scottish PESs (or, as the case may
be, Scottish Settlements) fail to make payment of any sum
payable under sub-section 9.1 or 9.2 by the Scots Due Date
therefor, interest shall accrue on the unpaid amount from the
Scots Due Date to (and including) the date of payment, at the
rate (as well after as before any judgement) of four per cent.
above the Pool Banker's base lending rate from time to time.
THIS SUPPLEMENTAL DEED is made on , 1997
BETWEEN:-
(1) THE PERSONS whose names, registered numbers and registered or principal
offices are set out in Part I of Schedule 1;
(2) THE PERSONS whose names, registered numbers and registered or principal
offices are set out in Part II of Schedule 1;
(3) ENERGY SETTLEMENTS AND INFORMATION SERVICES LIMITED (registered number
2444282) whose registered office is situate at Fairham House, Green
Lane, Clifton, Nottingham NG11 9LN as Settlement System Administrator;
(4) ENERGY POOL FUNDS ADMINISTRATION LIMITED (registered number 2444187)
whose registered office is situate at 185 Park Street, London SE1 9DY
as Pool Funds Administrator;
(5) THE NATIONAL GRID COMPANY plc (registered number 2366977) whose
registered office is situate at National Grid House, Kirby Corner Road,
Coventry CV4 8JY as Grid Operator and Ancillary Services Provider;
(6) SCOTTISH POWER plc (registered number 117120) whose principal office is
situate at 1 Atlantic Quay, Glasgow G2 8SP, Scotland as an Externally
Interconnected Party;
(7) ELECTRICITE DE FRANCE, SERVICE NATIONAL whose principal office is
situate at Departement Relations avec l'Etranger, Echanges d'Energie, 2
Rue Louis Murat, 5eme etage, 75384 Paris, Cedex 08, France as an
Externally Interconnected Party;
(8) THE OTHER PARTIES whose names, registered numbers and registered or
principal offices are set out in Schedule 2; and
(9) THE METER OPERATOR PARTIES whose names, registered numbers and
registered or principal offices are set out in Schedule 3.
WHEREAS:-
(A) by a Pooling and Settlement Agreement for the Electricity Industry in
England and Wales dated 30th March, 1990 (the "Pooling and Settlement
Agreement") the parties thereto agreed to give effect to and be bound
by certain rules and procedures for the operation of an electricity
trading pool and the operation of a settlement system;
(B) the Pooling and Settlement Agreement has been amended and/or restated
by nineteen supplemental agreements, and hereinafter references to the
Pooling and Settlement Agreement are to that agreement as most recently
amended and restated; and
(C) the parties to this Deed (being (i) all the Parties at the date hereof
and (ii) all the Meter Operator Parties at the date hereof) have agreed
to amend the Pooling and Settlement Agreement on the terms and subject
to the conditions set out below.
NOW THIS DEED WITNESSES as follows:-
12
INTERPRETATION
Except where defined herein or where the context otherwise requires, words and
expressions defined in the Pooling and Settlement Agreement shall have
the same respective meanings when used in this Deed.
11.2 The table of contents and the headings to each of the Clauses are inserted
for convenience only and shall be ignored in construing this Deed.
AMENDMENTS
The parties hereby agree that with effect on and from midnight on 31st
July, 1997, the Pooling and Settlement Agreement shall be amended as
set out in Schedule 4.
CONTINUATION OF THE POOLING AND SETTLEMENT AGREEMENT
The Pooling and Settlement Agreement shall remain in full force and
effect and this Deed and the Pooling and Settlement Agreement shall be
treated as one document so that, upon the Pooling and Settlement
Agreement being amended pursuant to Clause 2, all references to the
Pooling and Settlement Agreement shall be treated as references to that
agreement as amended by this Deed.
MISCELLANEOUS
The provisions of Clauses 75 to 79 (inclusive) and 81 to 84 (inclusive)
of the Pooling and Settlement Agreement shall be deemed to be
incorporated herein mutatis mutandis.
ENTIRE AGREEMENT
Each party acknowledges that in entering into this Deed on the terms set out
herein it is not relying upon any representation, warranty, promise or
assurance made or given by any other party or any other person, whether
or not in writing, at any time prior to the execution of this Deed
which is not expressly set out herein.
15.2 None of the parties shall have any right of action against any other party
arising out of or in connection with any representation, warranty, promise
or assurance referred to in sub-clause 5.1 (except in the case of fraud).
GOVERNING LAW
This Deed shall be governed by, and construed in all respects in
accordance with, English law.
IN WITNESS whereof this document has been duly executed and delivered as a deed
the day and year first above written
SCHEDULE 1:
Part I: The Generators
Name Registered Registered or
Number Principal Office
Anglian Power Generators Limited 2488955 Wherstead Park
Wherstead
Ipswich
Suffolk
IP9 2AQ
Barking Power Limited 2354681 Devonshire House
Mayfair House
London W1X 5FH
British Nuclear Fuels plc 1002607 Risley
Warrington
Cheshire
WA3 6AS
Celtpower Limited 2656561 13 Charles II Street
London
SW1Y 4QT
Citigen (London) Limited 2427823 100 Thames Valley
Park Drive
Reading
Berkshire
RG6 1PT
Corby Power Limited 2329494 Mitchell Road
Phoenix Parkway
Corby
Northamptonshire
NN17 5QT
Derwent Cogeneration Limited 2703635 Landsdowne House
Berkeley Square
London W1X 5DH
Eastern Merchant Generation Limited 3116225 Wherstead Park
Wherstead
Ipswich
Suffolk
IP9 2AQ
Electricite de France, Service - Department Relations
avec
National I'Etranger
Echanges d'Energie
2 Rue Louis Murat
5eme etage
75384 Paris
Cedex 08
France
Elm Energy & Recycling (UK) Limited 2516685 Elm Energy House
Ettingshall Road
Wolverhampton
West Midlands WV2 2LA
Fellside Heat and Power Limited 2614535 Fellside Lodge
Seascale
Cumbria CA20 1PG
Fibrogen Limited 2547498 Astley House
33 Notting Hill Gate
London W11 3JQ
Fibropower Limited 2234141 Astley House
33 Notting Hill Gate
London W11 3JQ
First Hydro Company 2444277 Bala House
Lakeside Business Village
St. David's Park
Deeside
Flintshire
CH5 3XJ
Humber Power Limited 2571241 18 Savile Row
London
W1X 1AE
Indian Queens Power Company Limited 2928100 1 Northumberland Avenue
London
WC2N 5BW
Independent Energy UK Limited 3033406 2nd Floor, Park House
Park Street
Maidenhead
Berkshire
SL6 1SL
Keadby Generation Limited 2729513 P O Box 89, Keadby
Scunthorpe, North
Lincolnshire
DN17 3AZ
Lakeland Power Limited 2355290 Roosecote Power Station
Roosecote Marsh
Barrow-in-Furness
Cumbria LA13 OPQ
Magnox Electric plc 2264251 Berkeley Centre
Berkeley
Gloucestershire GL13 9PB
Medway Power Limited 2537903 Boston House
The Little Green
Richmond TW9 1QE
Midlands Power (UK) Limited 2251099 Mucklow Hill
Halesowen
West Midlands B62 8BP
National Power plc 2366963 Windmill Hill Business
Park
Whitehill Way
Swindon
Wiltshire
SN5 6PB
Nuclear Electric Limited 3076445 Barnett Way
Barnwood
Gloucester
GL4 3RS
Peterborough Power Limited 2353599 Storeys Bar Road
Peterborough PE1 5NT
PowerGen plc 2366970 53 New Broad Street
London EC2M 1JJ
Regional Power Generators Limited 2352390 Wetherby Road
Scarcroft,
Leeds LS14 3HS
Rocksavage Power Company Limited 18868 20 St. James's Street
London SW10 4UJ
Scottish Hydro-Electric plc 117119 10 Dunkeld Road
Perth PH1 5WA
Scottish Power plc 117120 1 Atlantic Quay
Glasgow G2 8SP
Slough Energy Supplies Limited 2474514 234 Bath Road
Slough SL1 4EE
Teesside Power Limited 2464040 4 Millbank
London SW1P 3ET
Winterton Power Limited 3001798 800 Park Avenue
Aztec West
Almondsbury
Bristol BS12 4SE
Part II: The Suppliers
Name Registered Registered or
Number Principal Office
British Gas Trading Ltd 3078711 Charter Court
50 Windsor Road
Slough
Berkshire SL1 2HA
British Nuclear Fuels plc 1002607 Risley
Warrington
Cheshire WA3 6AS
Candecca Resources Limited 953066 Welton Gathering Centre
Barfield Lane
Off Wragby Road
Sudbrooke
Lincoln LN2 2QU
Citigen (London) Limited 2427823 100 Thames Valley
Park Drive
Reading
Berkshire
RG6 1PT
Crosfield Limited 48745 Bank Quay
PO Box 26
Warrington
Cheshire WA5 1AB
Eastern Electricity plc 2366906 Wherstead Park
PO Box 40
Wherstead
Ipswich
Suffolk IP9 2AQ
East Midlands Electricity plc 2366923 PO Box 444
Woodyard Lane
Wollaton
Nottingham NG8 1EZ
Electricite de France, Service - Department Relations avec
National l'Etranger
Echanges d'Energie
2 Rue Louis Murat
5eme etage
75384 Paris
Cedex 08
Energy Supply Contracts Limited 172268 The Havens
Ransomes Europark
Ipswich
Suffolk IP3 9SJ
Enron Capital and Trade Resources 3003823 4 Millbank
Limited London SW1P 3ET
Impkemix Energy Limited 2076043 The Heath
Runcorn
Cheshire WA7 4QF
Independent Energy UK Limited 3033406 2nd Floor Park House
Park Street Maidenhead
Berkshire SL6 1SL
London Electricity plc 2366852 Templar House
81-87 High Holborn
London WC1V 6NU
Magnox Electric plc 2264251 Berkeley Centre
Berkeley
Gloucestershire GL13 9PB
Manweb plc 2366937 Manweb House
Chester Business Park
Chester CH4 9RF
Midlands Electricity plc 2366928 Mucklow Hill
Halesowen
West Midlands B62 8BP
National Power plc 2366963 Windmill Hill Business Park
Whitehill Way
Swindon
Wiltshire
SN5 6PB
Norsk Hydro (UK) Limited 841421 Bridge House
69 London Road
Twickenham
Middlesex TW1 3RH
Northern Electric plc 2366942 Carliol House
Market Street
Newcastle upon Tyne NE1 6NE
NORWEB plc 2366949 PO Box 14
410 Birchwood Boulevard
Birchwood
Warrington WA3 7GA
Nuclear Electric Limited 3076445 Barnett Way
Barnwood
Gloucester
GL4 3RS
PowerGen plc 2366970 53 New Broad Street
London EC2M 1JJ
Scottish Hydro-Electric plc 117119 10 Dunkeld Road
Perth PH1 5WA
Scottish Power plc 117120 1 Atlantic Quay
Glasgow G2 8SP
SEEBOARD plc 2366867 Forest Gate
Brighton Road
Crawley
West Sussex RH11 9BH
Shell Power Limited 2559630 Rowlands Way
Withenshawe
Manchester M22 5SB
Slough Energy Supplies Limited 2474514 234 Bath Road
Slough SL1 4EE
Southern Electric plc 2366879 Westacott Way
Littlewick Green
Maidenhead
Berkshire SL6 3QB
South Wales Electricity plc 2366985 Newport Road
St. Mellons
Cardiff CF3 9XW
South Western Electricity plc 2366894 800 Park Avenue
Aztec West
Almondsbury
Bristol BS12 4SE
The Renewable Energy Company Limited 3043412 Stroud House
Russell Street
Stroud
Gloucestershire
GL5 3AN
UK Electric Power Limited 2844010 21 St. Thomas Street
Bristol BS1 6US
UML Limited 661900 PO Box 115
Port Sunlight
Wirral
Merseyside
L62 4ZL
Yorkshire Electricity Group plc 2366995 Wetherby Road
Scarcroft
Leeds LS14 3HS
SCHEDULE 2:
The Other Parties
Name Registered Registered or
Number Principal Office
Accord Energy Limited 2877398 Rivermill House
152 Grosvenor Road
London SW1V 3JL
AES Barry Limited 3135522 Burleigh House
17-19 Worpe Way
Richmond
Surrey TW10 6AG
Alcan Aluminium UK Limited 750143 Chalfont Park
Gerrards Cross
Buckinghamshire
SL9 0QB
BG plc 2006000 100 Thames Valley
Park Drive
Reading
Berkshire RG6 1PT
Cabah Energy Limited 2759706 190 Strand
London WC2R 1JN
Electricity Direct (UK) Limited 3174056 78 High Street
Lewes
East Sussex BN7 1XF
Enfield Energy Centre Limited 2796628 Concorde House
Concorde Way
Stockton on Tees
Cleveland
TS18 3RB
Fibrowatt Thetford Limited 3057688 Astley House
33 Notting Hill Gate
London W11 3JQ
Hydro Electric Energy Limited 2487475 Royex House
Aldermanbury Square
London EC2V 7LD
Keadby Power Limited 2548042 PO Box 89 Keadby
Scunthorpe North
Lincolnshire DN17 3AZ
Kingsnorth Power Limited 2656343 Chancery House
53-64 Chancery Lane
London WC2A 1QU
Meter Operators Limited 2841018 Lynton House
7-12 Tavistock Square
London WC1H 9BQ
Pentex (East Midlands) Limited 2275006 Union Buildings
15 Union Street
Aberdeen AB1 2BU
Seabank Power Limited 2591188 Severn Road Hallen
Bristol BS10 7SP
Spalding Energy Company Limited 19668 20 St. James's Street
London SW1A 1ES
SCHEDULE 3:
The Meter Operator Parties who are not Parties
Name Registered Registered or
Number Principal Office
Control Devices and Systems Limited 1242585 PO Box 56
101 Mill Lane
Newbury
Berkshire
RG14 5RE
Datum Solutions Limited 2815238 185 Park Street
London
SE1 9DY
DrakMarn O&M Ltd 3124701 53 New Broad Street
London EC2M 1JJ
E. Squared Limited 2674129 Almac House
Church Lane
Bisley
Surrey
GU24 9DR
Northern Energy Services Limited 2868141 5 Derwent Place
Spotborough
Doncaster
DN5 7PN
PowerMet Limited 2877912 3 Park Place
London SW1A 1LP
Schlumberger Industries Limited 534821 1 Kingsway
London WC2B 6XH
Stanor National Contracts Limited 2769170 7-12 Tavistock Square
London WC1H 9BQ
The Challenge Group - 22 Tally Road
Oxted
Surrey RH8 0TG
17
SCHEDULE 4:
Amendments to the Pooling and Settlement Agreement
The Pooling and Settlement Agreement shall be amended as follows:-
Operative Provisions
By the deletion of existing Clause 1.7 and by the insertion of the following
new Clause in substitution therefor:-
"1.7 1998: The provisions of Schedules 22, 23, 24 and 25 shall have effect.".
By the deletion of the word "and" at the end of paragraph (j) of Clause
15.6.4 and by the insertion of the following new paragraph immediately
after paragraph (k) of Clause 15.6.4:-
"(l) if (where applicable, after the provisions of
paragraph (k) above have been followed) only two RS
Nominees appear on the SG Preference List or (as the
case may be) the IS Preference List and the Weighted
Votes cast in favour of both such RS Nominees are
equal then the selection of the SG Committee Member or
(as the case may be) the IS Committee Member shall be
decided by the drawing of lots in a manner to be
determined by the Pool Chairman; and".
By the deletion of the word "and" at the end of Clause 24.2.29, by the
deletion of the full stop at the end of Clause 24.2.30 and the
subsitution therefor of the text "; and", and by the insertion of the
following Clause immediately after Clause 24.2.30:-
"24.2.31 Acting as, and performing the functions of, the
Accreditation Authority (as defined in Schedule 25) on
the terms and subject to the conditions of that
Schedule.".
By the deletion of the heading of Clause 47.3 and the substitution therefor of
the following:-
"47.3 Terms of engagement - scope of work:".
By the renumbering of Clause 47.3.1 as Clause 47.3.1(a) and by the
insertion of the following paragraphs immediately after such Clause
47.3.1(a):-
"(b) The exclusions from and limitations of liability of
the Pool Auditor shall be as set out in its terms of
engagement and shall apply to this Agreement as if the
same were set out in full herein.
(c) Each Pool Member shall comply with any arrangements
made from time to time by the Executive Committee
relating to the making of claims against the Pool
Auditor and to the sharing of any recoveries from the
Pool Auditor the amount of which may be affected by any
limitations of liability of the Pool Auditor as
referred to in paragraph (b) above. In particular, each
Pool Member shall notify the Executive Committee of any
claim brought by it against the Pool Auditor where it
is not practicable for the claim to be conducted by the
Executive Committee on its behalf and shall keep the
Executive Committee fully informed as to the conduct of
such a claim.".
By the insertion of the following new Clause immediately after Clause 48.10:-
"48.11 Certification Agent:
48.11.1 If, and for so long as, the Pool Auditor is also
appointed as the Certification Agent, the Executive
Committee may agree with the Accreditation Authority
that the terms of engagement of the Certification
Agent shall be incorporated in the terms of engagement
and scope of work to be carried out by the Pool
Auditor, in which event the terms of engagement of the
Certification Agent shall be agreed, amended and
substituted by the Executive Committee instead of the
Accreditation Authority.
48.11.2 In its capacity as Certification Agent, the Pool
Auditor shall not be required to comply with the
provisions of Clauses 48.2 or 48.3 and the provisions
of Clause 48.7 shall not apply.
48.11.3 In this Clause 48.11, terms defined in Schedule 25 shall have
the same meaning.".
Schedule 4
By the insertion, in Part A of the Appendix to Schedule 4, of the
following definitions in the correct alphabetical order:-
""Ad Hoc Consultancy Services" means those Consultancy Services described
in sub-section 3.2 of Part B;"; and
""Ad Hoc Development Services" means those Development Services
described in sub-section 4.2 of Part B;".
By the deletion of the existing Section 3 of Part B of the Appendix to
Schedule 4 and by the insertion of the following new Section in
substitution therefor:-
"3. CONSULTANCY SERVICES
3.1 Consultancy Services: Consultancy Services are those Services described
as Consultancy Services in the Service Lines set out in the Menu of
Consultancy Services Prices.
3.2 Ad Hoc Consultancy Services: Ad Hoc Consultancy Services are those
Consultancy Services which the Settlement System Administrator is to
provide on an ad hoc basis as described in the relevant Service Line.".
By the deletion of the existing Section 4 of Part B of the Appendix to
Schedule 4 and by the insertion of the following new Section in
substitution therefor:-
"4. DEVELOPMENT SERVICES
4.1 Development Services: Development Services are those Services described
as Development Services in the Service Lines set out in the Menu of
Development Services Prices.
4.2 Ad Hoc Development Services: Ad Hoc Development Services are those
Development Services which the Settlement System Administrator is to
provide on an ad hoc basis as described in the relevant Service Line.".
By the insertion of the following new sub-section immediately after
sub-section 2.3 of Part F of the Appendix to Schedule 4:-
"2.4 Ad Hoc Consultancy Services: the Contract Manager shall have the right to
Order Ad Hoc Consultancy Services in accordance with the Menu of
Consultancy Services Prices.".
By the insertion of the following new sub-section immediately after
sub-section 3.5 of Part F of the Appendix to Schedule 4:-
"3.6 Ad Hoc Development Services: the Contract Manager shall have the right to
Order Ad Hoc Development Services in accordance with the Menu of
Development Services Prices.".
By the insertion of the following new sub-section immediately after
sub-section 4.3 of Part G of the Appendix to Schedule 4:-
"4.4 Ad Hoc Consultancy Services: The charge for each Ad Hoc Consultancy
Services shall be the corresponding price set out in the Menu of
Consultancy Services Prices.".
By the insertion of the following new sub-section immediately after
sub-section 5.5 of Part G of the Appendix to Schedule 4:-
"5.6 Ad Hoc Development Services: The charge for each Ad Hoc Development Service
shall be the corresponding price set out in the Menu of Development
Services Prices.".
By the deletion of paragraph (b) from Section 9 of Part G of the Appendix
to Schedule 4 and the substitution therefor of the following new
paragraph:-
"(b) charges for all Ad Hoc Production Services, Ad Hoc Consultancy
Services and Ad Hoc Development Services provided or to be
provided during such month, determined as provided in
sub-sections 2.2, 4.4 or 5.6 above (as the case may be);".
By the deletion of paragraph (b) from sub-section 2.4 of Part J of the
Appendix to Schedule 4 and the substitution therefor of the following
new paragraph:-
"(b) the charge for Ad Hoc Production Services, Ad Hoc Consultancy Services
and Ad Hoc Development Services;".
By the deletion from sub-paragraphs (c)(i)(A)(1), (A)(2) and (B) of
sub-section 1.2 of Part K of the Appendix to Schedule 4 of all
references to "50MW" and by the substitution therefor of references to
"100MW".
Schedule 22
By the deletion from the last sentence of paragraph 3.4.4 of Schedule 22 of the
reference to "paragraph 4.3.2" and by the substitution therefor of the reference
to "paragraph 3.4.2".
New Schedule 24
By the insertion of the following new Schedule 24:-
"SCHEDULE 24
[Not used.]"
New Schedule 25
By the insertion of the following new Schedule 25:-
"SCHEDULE 25
Accreditation
PART 1 : INTERPRETATION
1.1 Defnitions: In this Schedule, unless the context otherwise requires:
"1998 Programme" has the meaning given to that term in Schedule 22;
"Accreditation" means, subject to sub-section 5.7, written confirmation
by the Accreditation Authority that an Applicant has, in the opinion of
the Accreditation Authority, satisfied the relevant Accreditation
Requirements, and "Accredited" shall be construed accordingly;
"Accreditation Administrator" means the person (if any) for the time
being and from time to time appointed pursuant to Part 3 as the
Accreditation Administrator for the purposes of this Schedule;
"Accreditation Authority" means the person for the time being and from
time to time appointed pursuant to Part 2 as the Accreditation
Authority for the purposes of this Schedule;
"Accreditation Process" means the process set out in this Schedule and
Agreed Procedure 531 whereby an Applicant is assessed to determine
whether it satisfies the Accreditation Requirements;
"Accreditation Requirements" means, in relation to an Applicant, the
requirements which that Applicant is required to satisfy in order to
perform the specific function or functions for which it is applying to
be Accredited (being one or more of the functions associated with the
categories referred to in paragraphs (a) to (j) (inclusive) of
sub-section 2.3), as determined for the time being and from time to
time by the Accreditation Authority;
"Agency System" means, in relation to an Applicant, the particular
systems and procedures of that Applicant (or for which that Applicant
is responsible) relevant to the specific function for which it is
applying to be Accredited;
"Applicant" means a person who falls within one or more of the
categories referred to in paragraphs (a) to (j) (inclusive) of
sub-section 2.3 and who, in accordance with this Schedule, applies for
one or more of its Agency Systems to be Certified and/or for itself to
be Accredited and, where the context so admits, shall include a person
applying for re-Certification of any of its Agency Systems in
accordance with this Schedule;
"Certification" means written confirmation by the Accreditation
Authority that a particular Agency System of an Applicant has, in the
opinion of the Accreditation Authority, satisfied the Certification
Requirements and, where the context so admits, shall include
re-Certification of Agency Systems, and "Certify" and "Certified" shall
be construed accordingly;
"Certification Agent" means the person for the time being and from time
to time appointed pursuant to Part 4 as the Certification Agent for the
purposes of this Schedule;
"Certification Documentation" has the meaning given to that term in
paragraph 4.3.1;
"Certification Process" means the process set out in this Schedule and
Agreed Procedure 531 whereby a particular Agency System of an Applicant
is assessed to determine whether it satisfies the Certification
Requirements;
"Certification Requirements" means, in relation to any of the Agency
Systems of an Applicant, the requirements which such Agency System is
required to satisfy in order to perform the specific function or
functions for which the Applicant is applying to have such Agency
System Certified (being one or more of the functions associated with
the categories referred to in paragraphs (a) to (j) (inclusive) of
sub-section 2.3), as determined for the time being and from time to
time by the Accreditation Authority;
"Interested Person" has the meaning given to that term in section 7;
"Menu of Certification Fees" means the scale of fees to be charged to
Applicants in connection with the Certification Process, as set out in
Agreed Procedure 531; and
"Pool" has the meaning given to that term in Schedule 22.
1.2 Interpretation: In this Schedule, except where the context otherwise
requires:
1.2.1 references to any Agency System of an Applicant include any
Agency System for which that Applicant is responsible; and
1.2.2 references to a particular Part, Section, sub-section or
paragraph or to any Annex shall be a reference to that Part,
Section, sub-section or paragraph of, or Annex to, this
Schedule.
PART 2 : THE ACCREDITATION AUTHORITY
2.1 Appointment and removal of Accreditation Authority:
2.1.1 The Executive Committee shall act as, and shall perform the
functions of, the Accreditation Authority pursuant to
Clause 24.2.31 (and Pool Members shall procure that the
Executive Committee so acts and performs) until such time
as Pool Members in general meeting otherwise resolve.
2.1.2 Pool Members in general meeting shall have the right to
appoint and remove the Accreditation Authority from time to
time and (subject to sub-section 2.4) to agree, amend and
substitute the terms of engagement of the Accreditation
Authority.
2.1.3 Unless otherwise determined by Pool Members in general
meeting, the costs, fees, expenses, liabilities and losses
of, and all other amounts incurred or paid by, the
Accreditation Authority shall be dealt with in accordance
with the PFA Accounting Procedure.
2.2 Accreditation Authority's functions: The functions of the Accreditation
Authority shall be confined to the operational requirements of Pool
Members collectively in their capacity as such and (subject as
aforesaid) shall be as set out in this Schedule and Agreed Procedure
531 and shall include such powers and authorities as may be necessary
or incidental to the performance of such functions.
2.3 Categories of Applicant: On the terms and subject to the conditions of
this Schedule, the Accreditation Authority shall be responsible for the
Certification of each of the Agency Systems of, and the Accreditation
of, Applicants falling within the following categories:
(a) PES registration service providers;
(b) non half hourly data collectors;
(c) non half hourly data aggregators;
(d) non half hourly meter operators;
(e) half hourly data collectors;
(f) half hourly data aggregators;
(g) half hourly meter operators;
(h) teleswitch operators;
(i) meter administrators; and
(j) such other categories of person, if any, as the Executive
Committee, with the prior written consent of the Director, may
determine.
2.4 Executive Committee as Accreditation Authority: The provisions of
Clauses 16.9, 17.4, 18, 19, 20.4 and 22 to 24 (inclusive) shall apply
in relation to the Executive Committee, the Committee Members, the Pool
Chairman, the Chief Executive, the personnel referred to in Clause
17.2.1 and the Secretary when the Executive Committee is acting as, and
performing the functions of, the Accreditation Authority provided that:
2.4.1 notice of meetings of the Accreditation Authority need be
given only to the Committee Members, the Pool Chairman, the
Chief Executive (if any), the Pool Auditor, the
Certification Agent and the Accreditation Administrator
and, insofar as concerns the Certification of the Agency
System of an Applicant or the Accreditation of an
Applicant, that Applicant. Clause 18.1.2 shall be modified
accordingly;
2.4.2 if any Committee Member or the Certification Agent or the
Accreditation Administrator wishes to advise additional
matters which he or it wishes to be considered at a meeting
of the Accreditation Authority he or it shall give notice
to all other persons entitled to attend that meeting no
later than three working days before the date of the
meeting (or such lesser period as the Accreditation
Authority may from time to time determine).
Clause 18.1.4 shall be modified accordingly;
2.4.3 minutes of meetings of the Accreditation Authority shall be
confidential and copies shall be required to be provided
only to those persons who were entitled to attend the
relevant meeting and, insofar as concerns the Certification
of the Agency System of an Applicant or the Accreditation
of an Applicant, that Applicant. Clause 18.1.6 shall be
modified accordingly;
2.4.4 each of the Pool Chairman, the Chief Executive, the Pool
Auditor, the Certification Agent and the Accreditation
Administrator (or its or his respective duly appointed
representative) shall have the right to attend and speak
(but not to vote) at meetings of the Accreditation
Authority. The Chief Executive (or his duly appointed
representative) shall be obliged so to attend. With the
exception of the final sentence of Clause 19.4, that Clause
shall not apply;
2.4.5 save for Clause 20.4, Clause 20 shall not apply;
2.4.6 any question or matter arising at a meeting of the
Accreditation Authority shall be decided by a 75 per cent.
majority of the votes cast at the meeting by Committee
Members entitled to vote in accordance with Section 2.4.10.
On any such question or matter each Committee Member shall
be entitled to one vote. Clause 22.2 shall not apply;
2.4.7 a decision duly made at a meeting of the Accreditation
Authority shall (unless otherwise determined by the
Accreditation Authority or otherwise provided by the terms
of the decision) have immediate effect. Clause 22.4 shall
not apply;
2.4.8 Clauses 22.3 and 22.5 to 22.11 (inclusive) shall not apply:
in particular, but without prejudice to the generality of
the foregoing, no decision of the Accreditation Authority
shall be referred to Pool Members in general meeting;
2.4.9 Clauses 23.1, 23.2, 23.6 and 23.7 shall not apply;
2.4.10 a Committee Member in his capacity as a member of the
Accreditation Authority shall be required to act
independently of the interests of his employer and of those
Pool Members whose interests he represents when acting as a
member of the Executive Committee. In particular, but
without prejudice to the generality of the foregoing:
(a) a Committee Member shall not:
(i) participate as a member of the
Accreditation Authority in the
consideration of whether his employer's
Agency Systems should be Certified or
whether his employer should be
Accredited;
(ii) be counted in ascertaining whether a
quorum is present at a meeting of the
Accreditation Authority convened to
consider whether his employer's Agency
Systems should be Certified or whether
his employer should be Accredited; or
(iii) be entitled to receive any working
papers, opinions, reports or other
documentation which have been prepared
for the Accreditation Authority in
connection with the Certification
Process or Accreditation Process of his
employer;
(b) a Committee Member shall not disclose to his
employer confidential information which he has
received in his capacity as a member of the
Accreditation Authority unless:
(i) required to do so by any Competent Authority or by law;
(ii) in order for his employer to comply with the
conditions of any Licence with which his employer is
required to comply;
(iii)required to do so by any stock exchange or regulatory
authority or the Panel on Take-overs and Mergers; or
(iv) pursuant to the arbitration rules of the
Electricity Arbitration Association or
pursuant to any judicial or other arbitral
process or tribunal having jurisdiction in
relation to him or his employer,
in any of which events the Committee Member shall
first be required to give written notice of the
required disclosure to the Accreditation
Authority; and
2.4.11 references to a Committee Member shall for the purposes of
this Schedule include a reference to a Committee Member in
his capacity as a member of the Accreditation Authority.
2.5 Delegation:
2.5.1 The Accreditation Authority shall have the right at any
time and from time to time to delegate or procure the
delegation of all or any part of the day-to-day
administration of the Accreditation Process to the
Accreditation Administrator. For the avoidance of doubt,
this shall not include the taking of any decision as to
whether the Agency Systems of an Applicant (or any of them)
should be Certified or the Applicant should be Accredited.
2.5.2 The Accreditation Authority shall be responsible for every
act, breach, omission, neglect and failure of the
Accreditation Administrator.
2.6 Responsibilities owed to Pool Members alone: In acting
as the Accreditation Authority, the Executive Committee
shall have due regard to the collective interests of
Pool Members. The responsibilities of the Accreditation
Authority under this Schedule are owed exclusively to
Pool Members collectively, and to no other person. In
particular, but without prejudice to the generality of
the foregoing, Suppliers shall be required to satisfy
themselves as to the financial condition and prospects
and the management and operational ability of any
Accredited person and shall not rely on the fact of
Accreditation (or the lack of Accreditation) as, or
infer therefrom, any representation, warranty or other
statement or indication on the part of the
Accreditation Authority, the Accreditation
Administrator or the Certification Agent that the
Accredited person has any or any particular financial
condition or prospects or level of management or
operational ability.
PART 3 : THE ACCREDITATION ADMINISTRATOR
3.1 Appointment and removal of Accreditation Administrator: The
Accreditation Administrator shall be appointed and removed from time to
time by the Accreditation Authority acting on behalf of all Pool
Members. The Accreditation Authority shall have the right on behalf of
all Pool Members to agree, amend and substitute the terms of engagement
of the Accreditation Administrator.
3.2 Pool Members' authorisation: Pool Members hereby irrevocably and
unconditionally authorise the Accreditation Authority to appoint and
remove, and to agree, amend and substitute the terms of engagement of,
the Accreditation Administrator on their behalf and undertake not to
withdraw or change that authority.
3.3 Functions of Accreditation Administrator:
3.3.1 The Accreditation Administrator shall perform such functions
associated with the day-to-day administration of the
Accreditation Process as are delegated to it from time to time
by the Accreditation Authority. A copy of any such delegated
functions will be made available by the Accreditation
Authority to Pool Members on request.
3.3.2 The Accreditation Administrator shall keep confidential
information that it receives in its capacity as Accreditation
Administrator on terms agreed from time to time by it with the
Accreditation Authority.
PART 4 : THE CERTIFICATION AGENT
4.1 Appointment and removal of Certification Agent: The Accreditation
Authority shall, from time to time, appoint and remove a Certification
Agent on behalf of all Pool Members. The first Certification Agent
shall be Coopers & Lybrand. Subject to Clause 48.11, the Accreditation
Authority shall have the right on behalf of all Pool Members to agree,
amend and substitute the terms of engagement of the Certification
Agent.
4.2 Pool Members' authorisation: Pool Members hereby irrevocably and
unconditionally authorise the Accreditation Authority to appoint and
remove, and to agree, amend and substitute the terms of engagement of,
the Certification Agent on their behalf and undertake not to withdraw
or change that authority.
4.3 Functions of Certification Agent: The functions of the Certification
Agent shall be:
4.3.1 to prepare the self-assessment certification returns to be
completed by each Applicant and the supporting Pool
documentation (including guidance notes) to be used by the
Certification Agent in the Certification Process (together the
"Certification Documentation"), to submit the Certification
Documentation to the Accreditation Authority for approval and
to revise (and resubmit for approval) the Certification
Documentation in accordance with the instructions of the
Accreditation Authority from time to time;
4.3.2 to carry out the Certification Process in accordance with
applicable English law, the terms set out in this Schedule and
Agreed Procedure 531 and the approved Certification
Documentation;
4.3.3 to exercise the skill, care and diligence in the preparation
and revision of the Certification Documentation (recognising
that the Certification Agent is required to give effect to the
instructions of the Accreditation Authority under paragraph
4.3.1) and in the performance of the Certification Process
reasonably to be expected of a firm of accountants of
internationally recognised standing (or to such other standard
of skill, care and diligence as may be agreed by the
Accreditation Authority with the Certification Agent from time
to time); and
4.3.4 in respect of each application for Certification, to deliver
an opinion of the Certification Agent addressed to the
Accreditation Authority (for itself and on behalf of all Pool
Members) as to whether the Applicant's Agency System has met
the Certification Requirements.
4.4 Responsibilities owed to Accreditation Authority: The responsibilities
of the Certification Agent under this Schedule are owed exclusively to
the Accreditation Authority for itself and Pool Members collectively
and to no other person provided that the Pool Auditor shall be entitled
to rely on all opinions of the Certification Agent delivered pursuant
to paragraph 4.3.4.
4.5 Confidentiality undertaking: Before commencing the Certification
Process with respect to the Agency Systems of any Applicant, the
Certification Agent shall execute a confidentiality undertaking in
favour of such Applicant in such form as may from time to time be
agreed by the Accreditation Authority with the Certification Agent.
PART 5 : THE CERTIFICATION PROCESS AND ACCREDITATION PROCESS
5.1 The Certification Process and Accreditation Process:
5.1.1 The Certification Process and the Accreditation Process shall
be conducted in accordance with Agreed Procedure 531.
5.1.2 Agreed Procedure 531 shall not conflict with the provisions of
this Schedule and, to the extent of any conflict or
inconsistency between the two, the provisions of this Schedule
shall prevail.
5.1.3 The Accreditation Authority shall provide copies of the latest
version of this Schedule and Agreed Procedure 531 to
Applicants.
5.1.4 The Accreditation Authority shall, subject to sub-section 6.2,
provide each Applicant with a copy of all opinions (whether
preliminary or final) of the Certification Agent in relation
to the Agency System(s) of that Applicant delivered pursuant
to paragraph 4.3.4 at the same time as the Accreditation
Authority notifies such Applicant whether its Agency System(s)
has (have) been Certified and/or (as the case may be) such
Applicant has been Accredited. The Accreditation Authority
shall be under no obligation to provide an Applicant with a
copy of any such opinion at any time before it gives such
notification.
5.2 No Certification: The Accreditation Authority shall not Certify the
Agency System of any Applicant unless the Certification Agent has
provided an opinion (not being a disclaimer of opinion, howsoever
called) in the terms of paragraph 4.3.4 in relation to that Agency
System.
5.3 Loss of Certified or Accredited status: The Accreditation Authority
shall have the right at any time and from time to time in accordance
with Agreed Procedure 531:
5.3.1 to remove the Certification of all or any of the Agency
Systems of any person, whereupon such Agency System(s) shall
cease to be Certified; and/or
5.3.2 to remove the Accreditation of any person, whereupon such
person shall cease to be Accredited.
5.4 Re-certification: Each person who has been Accredited shall be required
to have some or all of its Agency Systems re-Certified in accordance
with Agreed Procedure 531. If any such Agency System is not so
re-Certified, such person's Accreditation shall automatically lapse.
5.5 Fees and expenses:
5.5.1 The Accreditation Authority shall determine and publish to
Applicants and to those persons who have been Accredited a
Menu of Certification Fees which shall be charged directly to
Applicants for the purposes of Certification, and the
Accreditation Authority shall have the right to revise such
fees from time to time.
5.5.2 Each Applicant shall pay its own costs and expenses incurred
in connection with the Certification Process and the
Accreditation Process.
5.6 Applicants bound by this Schedule: Applicants shall agree to be bound
by the Certification Process, the Accreditation Process, the provisions
of this Schedule and Agreed Procedure 531 by the execution of a letter
agreement in form and content satisfactory to the Accreditation
Authority.
5.7 Appeal procedure: If an Applicant is dissatisfied for any reason (including
on the grounds that the Applicant disagrees with the final opinion of the
Certification Agent in relation to one or more of its Agency Systems) with
the decision of the Accreditation Authority as to whether such Applicant
shall be Accredited, the sole and exclusive remedy of the Applicant shall
be to refer the matter for determination to the Director in accordance with
Agreed Procedure 531. The determination of the Director shall be final,
conclusive and binding on the Applicant, the Accreditation Authority and
all Pool Members.
5.8 Exclusion of other appeals:
5.8.1 For the avoidance of doubt, neither Clause 83 nor Clause 84
shall apply in the case where an Applicant is dissatisfied for
any reason with the decision of the Accreditation Authority as
to whether such Applicant shall be Accredited. Sub-section 5.7
provides the sole and exclusive remedy of the Applicant.
5.8.2 Save for any reference to the Director in accordance with
sub-section 5.7, in respect of any matter concerning the
Certification of any Agency Systems or the Accreditation of
any person or the Certification Process or the Accreditation
Process generally all reference or appeal procedures in this
Agreement to or involving the Director are expressly excluded.
PART 6 : APPLICANT'S RESPONSIBILITIES
6.1 Applicant's warranty and undertakings: Each Applicant represents,
warrants and undertakes to each of the Pool Members (for itself and as
trustee and agent for the Accreditation Authority, the Accreditation
Administrator and the Certification Agent) that:
6.1.1 all information supplied by or on behalf of the Applicant to
the Accreditation Authority, the Accreditation Administrator
or the Certification Agent in connection with the
Certification Process or the Accreditation Process is true,
complete and accurate and not misleading because of any
omission or ambiguity or for any other reason, subject to
disclosure, if any, acceptable to the Accreditation Authority
being made in advance of the provision of the relevant
information to the Accreditation Authority, the Accreditation
Administrator or (as the case may be) the Certification Agent;
6.1.2 (a) completion of all documentation by or on behalf of
the Applicant in connection with the Certification
Process or the Accreditation Process is and will
remain the sole responsibility of the Applicant;
(b) the Applicant will duly complete all such
documentation and provide all the information required
thereunder within the time periods prescribed by
Agreed Procedure 531; and
(c) the Applicant has had the opportunity to take its own
legal and other professional advice regarding the
Certification Process and the Accreditation Process;
6.1.3 it will confirm in writing to the Accreditation Authority (for
itself and on behalf of all Pool Members, Accreditation
Authority and the Certification Agent) in accordance with
Agreed Procedure 531 that each of the other representations,
warranties and undertakings in this sub-section 6.1 are true
and have been complied with as at the date on which it has
been notified that its application(s) for Certification and/or
Accreditation will be considered by the Accreditation
Authority; and
6.1.4 the Applicant will co-operate fully with the Accreditation
Authority, the Accreditation Administrator and the
Certification Agent in the Certification Process and the
Accreditation Process and, without prejudice to the generality
of the foregoing, shall permit each of them reasonable access
to the Applicant's business records, working papers and
employees for the purposes of each such process upon not less
than three working days' advance notice.
6.2 No reliance by Applicant: The Applicant acknowledges and agrees that:
6.2.1 it shall not, and shall not be entitled to, place any reliance
on any working papers, opinion, report or other documentation
prepared by or for (or any oral or written interpretation of,
or any oral or written advice given in relation to, any such
working papers, opinion, report or other documentation by) the
Accreditation Authority, the Accreditation Administrator or
the Certification Agent in connection with the Certification
Process or the Accreditation Process unless such working
papers, opinion, report or other documentation is expressly
addressed to such Applicant; and
6.2.2 it shall keep confidential on the terms set out in Clause 70
any working papers, opinions, report or other documentation
referred to in paragraph 6.2.1 unless such working papers,
opinion, report or other documentation is expressly addressed
to such Applicant.
PART 7 : LIMITATION OF LIABILITY
7.1 Limitation of liability: Each Applicant, each person who has (or whose
Agency Systems have) been Certified or Accredited (or whose
Certification or Accreditation has been removed) and each Pool Member
(each an "Interested Person") agrees that:
7.1.1 the total aggregate liability of the Accreditation Authority
and the Accreditation Administrator to any Interested Person
whether in contract, tort (including negligence or breach of
statutory duty) or otherwise arising directly or indirectly
for or in connection with the Certification Process or the
Accreditation Process (including the contents of any opinion
or report prepared by the Accreditation Authority or the
Accreditation Administrator) shall in no circumstances exceed
(pound)5,000,000;
7.1.2 neither the Accreditation Authority nor the Accreditation
Administrator shall be liable to any Interested Person for any
loss of profit, loss of revenue, loss of contract, loss of
goodwill or any indirect or consequential loss arising from or
in connection with the Certification Process or the
Accreditation Process;
7.1.3sub-sections 7.1 and 7.2 shall not exclude the liability of the
Accreditation Authority or the Accreditation Administrator for fraud;
7.1.4 the exclusions from and limitations of liability of the
Accreditation Authority and the Accreditation Administrator
under this section shall not apply to death or personal injury
caused by the negligence of the relevant one of the
Accreditation Authority or the Accreditation Administrator;
7.1.5 the exclusions from and limitations of liability of the
Accreditation Authority and the Accreditation Administrator
under this Section 7 are reasonable because of (amongst other
matters) the likelihood that the amount of damages awardable
to the Interested Person from the Accreditation Authority or
the Accreditation Administrator would otherwise be
disproportionate to the charges which it makes in connection
with the Certification Process or the Accreditation Process
and because of the limited resources and expertise of the
Accreditation Authority and the Accreditation Administrator;
7.1.6 the exclusions from and limitations of liability of the
Accreditation Authority and the Accreditation Administrator
under this Section 7 shall be considered severally and the
invalidity or unenforceability of any one sub-section shall
not affect the validity or enforceability of any other
sub-section; and
7.1.7 the exclusions from and limitations of liability of the
Certification Agent are set out in the terms of its engagement
referred to in sub-section 4.1 and shall apply to this
Schedule as if the same were set out in full herein.
PART 8 : DISAPPLICATION PROVISIONS
8.1 Disapplication:
8.1.1 Parts III and V of this Agreement shall not apply in or to
this Schedule except, in the case of Part III, in respect of
any action under this Schedule which Pool Members in general
meeting are entitled or required by the terms of this Schedule
to take.
8.1.2 If, and for long as, the Pool Auditor is also appointed as the
Certification Agent, the provisions of Clause 48.11 shall
apply.".
SIGNATORIES
THE GENERATORS
Anglian Power Generators Limited
Address: Kings Lynn Power Station, Willows Business Park, Saddlebow, Kings
Lynn, Norfolk PE34 3RD Facsimile no: 01733 8e94164 Attention: W.
Burrough
By:
Barking Power Limited
Address: Barking Power Station, Chequers Lane, Dagenham, Essex RM9 6PF
Facsimile no: 0181 984 5174
Attention: M.D. Jones
By:
British Nuclear Fuels plc
Address: F13, Sellafield, Seascale, Cumbria CA20 1PG
Facsimile no: 019467 27132
Attention: P.L. O'Neill, Business Manager, Electricity Generation
By:
CeltPower Limited
Address: Plas Yn Dre Broad Street, Newtown, Powys SY16 2NA
Facsimile no: 01686 629887
Attention: J. Matthew
By:
Citigen (London) Limited
Address: 47-53 Charterhouse Street, London EC1M 6HA
Facsimile no: 0171 253 9319
Attention: S.P. Chandler
By:
Corby Power Limited
Address: Mitchell Road, Phoenix Parkway, Corby, Northamptonshire NN17 5QT
Facsimile no: 01536 402619
Attention: General Manager
By:
Derwent Cogeneration Limited
Address: P.O. Box 489, Spondon, Derby DE21 7ZS
Facsimile no: 01332 669829
Attention: J. Unwin
By:
Eastern Merchant Generation Limited
Address: Wherstead Park, Wherstead, Ipswich, Suffolk IP9 2AQ
Facsimile no: 01473 552941
Attention: Coral Woodard
By:
Electricite de France, Service National
Address: EDF Production Transport, Department Relations avec l'Etranger,
Echanges d'Energie, 2 Rue Louis Murat, 5eme etage, 75384, Paris Cedex
08
Facsimile no: (00 331) 40 42 63 41
Attention: P. Gaillet
(copy to: Associated Electricity Supplies Limited
Address: 53 St George's Road, Wimbledon, London SW19 4EA
Facsimile no: 0181 944 0750
Attention: P. Clubb)
By:
Elm Energy & Recycling (UK) Limited
Address: Elm Energy House, Ettingshall Road, Wolverhampton, West
Midlands WV2 2LA
Facsimile no: 01902 408517
Attention: M.D. Wyckoff
By:
Fellside Heat and Power Limited
Address: Fellside Lodge, Seascale, Cumbria CA20 1PG
Facsimile no: 01946 721130
Attention: J.A. Bartlett
By:
Fibrogen Limited
Address: Astley House, 33 Notting Hill Gate, London W11 3JQ
Facsimile no: 0171 221 8671
Attention: R. Fraser
By:
Fibropower Limited
Address: Astley House, 33 Notting Hill Gate, London W11 3JQ
Facsimile no: 0171 221 8671
Attention: R. Fraser
By:
First Hydro Company
Address: Bala House, Lakeside Business Village, St. Davids Park, Deeside,
Flintshire CH5 3XJ
Facsimile no: 01244 520697
Attention: B. Stalker
By:
Humber Power Limited
Address: South Humber Bank Power Station, South Marsh Road,
Stallingborough N.E. Lincs. DN37 8BZ
Facsimile no: 01469 573030
Attention: P. Evans
By:
Independent Energy UK Limited
Address: St John's Court, 70 St John's Close, Knowle, Solihull, West Midlands
B93 ONN
Facsimile no: 01564 770010
Attention: J. Sulley
By:
Indian Queens Power Limited
Address: The Old Chapel Business Centre, Suite 7, Greenbottom, Truro TR4 8QP
Facsimile no: 01872 561050
Attention: M. Miller
By:
Keadby Generation Limited
Address: c/o Scottish Hydro Electric, Inveralmond House, 200 Dunkeld Road,
Perth PH1 3AQ
Facsimile no: 01738 456227
Attention: I. Morgan
By:
Lakeland Power Limited
Address: Roosecote Power Station, Roosecote Marsh, Barrow-in-Furness, Cumbria
LA13
0PQ
Facsimile no: 01229 870919
Attention: Jackie Mahon
By:
Magnox Electric plc
Address: Berkeley Centre, Berkeley, Gloucestershire GL13 9PB
Facsimile no: 01453 810451
Attention: Company Secretary
By:
Medway Power Limited
Address: Medway Power Station, Isle of Grain, Rochester, Kent ME3 0AG
Facsimile no: 01634 271666
Attention: J. McLaren
By:
Midlands Power (UK) Limited
Address: Headquarters, Mucklow Hill, Halesowen, West Midlands
Facsimile no: 0121 423 0261
Attention: Company Secretary
By:
National Power plc
Address: Windmill Hill Business Park, Whitehill Way, Swindon, Wiltshire
SN5 6PB
Facsimile no: 01793 892061
Attention: M. Bowden
By:
Nuclear Electric Limited
Address: Barnett Way, Barnwood, Gloucester GL4 3RS
Facsimile no: 01452 653375
Attention: Company Secretary
By:
Peterborough Power Limited
Address: Storeys Bar Road, Peterborough PE1 5NT
Facsimile no: 01553 667166
Attention: W. Burrough
By:
PowerGen plc
Address: Westwood Way, Westwood Business Park, Coventry CV4 8LG
Facsimile no: 01203 425366
Attention: S. Skillings
By:
Regional Power Generators Limited
Address: Glanford Brigg Generating Station, Scawby Brook, Brigg, North
Lincolnshire DN20 9LT
Facsimile no: 01482 495916
Attention: P. Knight
By:
Rocksavage Power Company Limited
Address: Cow Hay Lane, Runcorn, Cheshire WA7 4FZ
Facsimile no: 01928 565514
Attention: B. Stewart
By:
Scottish Hydro-Electric plc
Address: Inveralmond House, 200 Dunkeld Road, Perth PH1 3AQ
Facsimile no: 01738 456190
Attention: R. Hackland
By:
Scottish Power plc
Address: Strathkelvin House, Kirkintilloch, Glasgow G66 1RN
Facsimile no: 0141 636 4706
Attention: B.J.H. Paget
By:
Slough Energy Supplies Limited
Address: 342 Edinburgh Avenue, Slough SL1 4TU
Facsimile no: 01753 790038
Attention: P.N. Jackson
By:
Teesside Power Limited
Address: Four Millbank, London SW1P 3ET
Facsimile no: 0171 316 5322
Attention: D. Lewis
By:
Winterton Power Limited
Address: 800 Park Avenue, Aztec West, Bristol BS12 4SE
Facsimile no: 01454 616675
Attention: T. Masood
By:
THE SUPPLIERS
British Gas Trading Ltd
Address: 1st Floor, 31 The Causeway, Staines, Middlesex TW18 3BL
Facsimile no: 01784 413242
Attention: T. Brookshaw
By:
British Nuclear Fuels plc
Address: F13, Sellafield, Seascale, Cumbria CA20 1PG
Facsimile no: 019467 27132
Attention: P.L. O'Neill, Business Manager, Electricity Generation
By:
Candecca Resources Limited
Address: Welton Gathering Centre, Barfield Lane, off Wragby Road, Sudbrooke,
Lincoln LN2 2QU
Facsimile no: 01522 754255
Attention: D. Wood
By:
Citigen (London) Limited
Address: 47-53 Charterhouse Street, London EC1M 6HA
Facsimile no: 0171 253 9319
Attention: S.P. Chandler
By:
Crosfield Limited
Address: Bank Quay, PO Box 26, Warrington, Cheshire WA5 1AB
Facsimile no: 01925 59828
Attention: K. Sowley
By:
Eastern Electricity plc
Address: Wherstead Park, PO Box 40, Wherstead, Ipswich, Suffolk IP9 2AQ
Facsimile no: 01473 554393
Attention: J. Whelan
By:
East Midlands Electricity plc
Address: Phoenix Centre Nuthall, Nottingham NG8 6AT
Facsimile no: 0115 995 5953
Attention: A. Musto
By:
Electricite de France, Service National
Address: EDF Production Transport, Department Relations avec l'Etranger,
Echanges d'Energie, 2 Rue Louis Murat, 5eme etage, 75384, Paris,
Cedex 08
Facsimile no: (010 331) 40 42 6341
Attention: P. Gaillet
(copy to: Associated Electricity Supplies Limited
Address: 53 St. George's Road, Wimbledon, London SW19 4EA
Facsimile no: 0181 944 0750
Attention: P. Clubb)
By:
Energy Supply Contracts Limited
Address: The Havens, Ransomes Europark, Ipswich, Suffolk IP3 9SJ
Facsimile no: 01473 273871
Attention: E.C. Cumberland
By:
Enron Capital and Trade Resources
Address: Four Millbank, London SW1P 3ET
Facsimile no: 0171 873 0140
Attention: D. Gosling
By:
Impkemix Energy Limited
Address: PO Box 90, Wilton Centre, Middlesborough, Cleveland TS90 8JE
Facsimile no: 01642 437838
Attention: K.J. Green
By:
Independent Energy UK Limited
Address: St. John's Court, St. John's Close, Knowle, West Midlands B93 0NN
Facsimile no: 01564 770010
Attention: J. Sulley
By:
London Electricity plc
Address: Templar House, 81-87 High Holborn, London WC1V 6NU
Facsimile no: 0171 430 2903
Attention: M. Holmes
By:
Magnox Electric plc
Address: Berkeley Centre, Berkeley, Gloucestershire GL13 9PB
Facsimile no: 01453 810451
Attention: Company Secretary
By:
Manweb plc
Address: Manweb House, Kingsfield Court, Chester Business Park,
Chester CH4 9QH
Facsimile no: 0141 568 3393
Attention: P. Brown, Energy Supply, Cathcart Business Park, Spean
Street, Glasgow
G44 4BE
By:
Midlands Electricity plc
Address: Mucklow Hill, Halesowen, West Midlands B62 8BP
Facsimile no: 0121 423 2777
Attention: R. Murray
By:
National Power plc
Address: Windmill Hill Business Park, Whitehill Way, Swindon, Wiltshire SN5 6PB
Facsimile no: 01793 892061
Attention: M. Bowden
By:
Norsk Hydro (UK) Limited
Address: Bridge House, 69 London Road, Twickenham, Middlesex TW1 3RH
Facsimile no: 0181 892 1686
Attention: M. Turner
By:
Northern Electric plc
Address: Carliol House, Market Street, Newcastle upon Tyne NE1 6NE
Facsimile no: 0191 210 2295
Attention: M. Chandler
By:
NORWEB plc
Address: Talbot Road, Manchester M16 0HQ
Facsimile no: 0161 875 7089
Attention: K. Lee
By:
Nuclear Electric Limited
Address: Barnett Way, Barnwood, Gloucester GL4 3RS
Facsimile no: 01452 653375
Attention: Company Secretary
By:
PowerGen plc
Address: Westwood Way, Westwood Business Park, Coventry CV4 8LG
Facsimile no: 01203 425366
Attention: S. Skillings
By:
Scottish Hydro-Electric plc
Address: Inveralmond House, 200 Dunkeld Road, Perth PH1 3AQ
Facsimile no: 01738 456190
Attention: R. Hackland
By:
Scottish Power plc
Address: Strathkelvin House, Kirkintilloch, Glasgow G66 1RN
Facsimile no: 0141 636 4706
Attention: B.J.H. Paget
By:
SEEBOARD plc
Address: PO Box 639, 329 Portland Road, Hove, East Sussex BN3 3SY
Facsimile no: 01273 428404
Attention: R.A. Page
By:
Shell Power Limited
Address: Delta House, Wavell Road, Wythenshawe, Manchester M22 5SB
Facsimile no: 0161 499 8387
Attention: John Tucker
By:
Slough Energy Supplies Limited
Address: 342 Edinburgh Avenue, Slough SL1 4TU
Facsimile no: 01753 790038
Attention: P.N. Jackson
By:
Southern Electric plc
Address: Westacott Way, Littlewick Green, Maidenhead, Berkshire SL6 3QB
Facsimile no: 01628 584469
Attention: J. Sykes
By:
South Wales Electricity plc
Address: Newport Road, St. Mellons, Cardiff CF3 9XW
Facsimile no: 01222 790971
Attention: M. Mackey
By:
South Western Electricity plc
Address: 800 Park Avenue, Aztec West, Almondsbury, Bristol BS12 4SE
Facsimile no: 01454 616675
Attention: D.G. Harris
By:
The Renewable Energy Company Limited
Address: Stroud House, Russell Street, Stroud, Glos GL5 3AN
Facsimile no: 01453 756222
Attention: M. Alder
By:
UK Electric Power Limited
Address: Overdale, Synchant Pass Road, Conwy, Gwynedd LL32 8RE
Facsimile no: 01492 592077
Attention: N.Bryson
By:
UML Limited
Address: PO Box 115, Port Sunlight, Wirral, Merseyside L62 4ZL
Facsimile no: 0151 643 6299
Attention: A.R. Stubbs
By:
Yorkshire Electricity Group plc
Address: Wetherby Road, Scarcroft, Leeds LS14 3HS
Facsimile no: 01132 895926
Attention: Company Secretary
By:
THE OTHER PARTIES
Accord Energy Ltd
Address: Charter Court, 50 Windsor Road, Slough, Berkshire SL1 2HA
Facsimile no: 01753 758010
Attention: E.F. Pethybridge
By:
AES Barry Limited
Address: Sully Moors Road, Sully, S. Glamorgan CF64 5YU
Facsimile no: 01446 722587
Attention: P. Norgeot
By:
Alcan Aluminium UK Limited
Address: Lynemouth Power Station, Ashington, Northumberland NE63 9YH
Facsimile no: 01670 393970
Attention: W.E. Jones
By:
BG plc
Address: 100 Thames Valley Park, Reading, Berkshire, RG6 1PT
Facsimile no: 0118 929 3651
Attention: C. Alexander
By:
Cabah Energy Limited
Address: c/o ABB ForStar Developments Limited, Tilford House, Farnham Business
Park, Weydon Lane, Farnham,
Surrey GU9 8QT
Facsimile no: 01252 732110
Attention: Paul Abbott
By:
Electricity Direct (UK) Limited
Address: 1 Livingstone Road, Hobe, Sussex BN3 3RS
Facsimile no: 01273 701050
Attention: G. Mackay
By:
Enfield Energy Centre Limited
Address: Cam Lea Offices, Mollison Avenue, Enfield EN3 7NN
Facsimile no: 01642 678123
Attention: K. Clarke
By:
Fibrowatt Thetford Limited
Address: Astley House, 33 Notting Hill Gate, London W11 3JQ
Facsimile no: 0171 221 8671
Attention: Rupert Fraser
By:
Hydro Electric Energy Limited
Address: c/o Scottish Hydro Electric PLC, Inveralmond House, 200 Dunkeld Road,
Perth PH1 3AQ
Facsimile no: 01738 455281
Attention: Company Secretary
By:
Keadby Power Limited
Address: P.O. Box 89, Keadby, Scunthorpe, North Lincolnshire DN17 3AZ
Facsimile no: 01724 784270
Attention: Dr. C.K. Stanley
By:
Kingsnorth Power Limited
Address: c/o Budd Martin & Co, Industria House, Red Houses, St. Brelade, Jersey
JE3 8LD
Facsimile no: 01534 44777
Attention: R. Martin
By:
Meter Operators Limited
Address: Ryden Lane, Charton, Nr. Pershore, Worscester WR10 3LQ
Facsimile no: 01386 861113
Attention: R. Edmed
By:
Pentex (East Midlands) Limited
Address: Union Buildings, 15 Union Street, Aberdeen AB1 2BU
Facsimile no: 01244 211444
Attention: H. Jamieson
By:
Seabank Power Limited
Address: Severn Road, Hallen, Bristol BS10 7SP
Facsimile no: 0117 982 0351
Attention: J.P. Baldry, General Manager
By:
Spalding Energy Company Limited
Address: 20 St. James's Street, London SW1A 1ES
Facsimile no: 0171 839 0905
Attention: G. Grant
THE METER OPERATOR PARTIES WHO ARE NOT PARTIES
Control Devices and Systems Limited
Address: P.O. Box 56, 101 Mill Lane, Newbury, Berkshire RG14 5RE
Telex no: 849811
Facsimile no: 01635 528224
Attention: J.W. Dowse
By:
Datum Solutions Limited
Address: Littlebrook Business Centre, Littlebrook Manor Way, Dartford, Kent DA1
5PS
Facsimile no: 01322 295178
Attention: G. Babbs
By:
DrakMarn O&M Ltd
Address: Westwood Way, Westwood Business Park, Coventry CV4 8LG
Facsimile no: 01203 425431
Contact: Company Secretary
By:
E. Squared Limited
Address: 52-54 Southwark Street, London SE1 1UN
Facsimile no: 0171 378 0012
Attention: Graham Nicholls
By:
Northern Energy Services Limited
Address: 208 Askern Road, Bentley, Doncaster DN5 OEU
Facsimile no: 01302 820790
Attention: W. Tuczemzkyi
By:
PowerMet Limited
Address: 13 Wimpole Street, London W1M 7AB
Facsimile no: 0171 493 7151
Attention: M. Rugman
By:
Schlumberger Industries Limited
Address: Langer Road, Felixstowe, Suffolk IP11 8ER
Facsimile no: 01394 276030
Attention: M. Jones, Marketing Manager
By:
Stanor National Contracts
Address: 71A Mafeking Avenue, Brentford, Middlesex TW8 0NL
Facsimile no: 0181 560 4651
Attention: A. Yardley
By:
The Challenge Group
Address: 22 Tally Road, Oxted, Surrey RH8 0TG
Facsimile no: 01883 730543
Attention: J. Glover
By:
EXTERNAL POOL MEMBERS
British Nuclear Fuels plc
Address: F13, Sellafield, Seascale, Cumbria CA20 1PG
Facsimile no: 019467 27132
Attention: P.L. O'Neil, Business Manager, Electricity Generation
By:
Electricite de France, Service National
Address: EDF Production Transport, Departement Relations avec l'Etranger,
Echanges d'Energie, 2 Rue Louis Murat, 5eme etage, 75384
Paris,
Cedex 08
Telex no: 280098 FRANCE
Facsimile no: (00 331) 40 42 63 41
Attention: P. Gaillet
(copy to: Associated Electricity Supplies Limited
Address: 53 St. George's Road, Wimbledon, London SW19 4EA
Facsimile no: 0181 944 0750
Attention: P. Clubb)
By:
Scottish Hydro-Electric plc
Address: Inveralmond House, 200 Dunkeld Road, Perth PH1 3AQ
Facsimile no: 01738 456190
Attention: R. Hackland
By:
Scottish Power plc
Address: Strathkelvin House, Kirkintilloch, Glasgow G66 1RN
Facsimile no: 0141 636 4706
Attention: B.J.H. Paget
By:
SETTLEMENT SYSTEM ADMINISTRATOR
Energy Settlements and Information Services Limited
Address: Fairham House, Green Lane, Clifton, Nottingham NG11 9LN
Facsimile no: 0115 945 6728
Attention: G.K. James, General Manager
By:
POOL FUNDS ADMINISTRATOR
Energy Pool Funds Administration Limited
Address: 3rd Floor, 185 Park Street, London SE1 9DY
Facsimile no: 01203 423558
Attention: A. Marks, Director (National Grid House, 2nd Floor,
Kirby Corner Road,
Coventry CV4 8JY)
By:
GRID OPERATOR
EXECUTED AS A DEED by )
The National Grid )
Company plc by the )
affixing of its )
common seal in the )
presence of:- )
MEMBER OF BOARD SEALING COMMITTEE
Authorised Signatory
Address: National Grid House, Kirby Corner Road, Coventry CV4 8JY
Telex no: -
Facsimile no: 01203 423577
Attention: Company Secretary (copy to:J. Irgin, c/o M.J. Metcalfe,
The National Grid Company plc, National Grid House, Kirby
Corner
Road, Coventry CV4 8JY
ANCILLARY SERVICES PROVIDER
EXECUTED AS A DEED by )
The National Grid )
Company plc by the )
affixing of its )
common seal in the )
presence of:- )
MEMBER OF BOARD SEALING COMMITTEE
Authorised Signatory
Address: National Grid House, Kirby Corner Road, Coventry CV4 8JY
Facsimile no: 01203 423577
Attention: Company Secretary (copy to Mr. Carlton)
EXTERNALLY INTERCONNECTED PARTIES
Scottish Power plc
Address: Strathkelvin House, Kirkintilloch, Glasgow G66 1RN
Telex No: -
Facsimile No: 0141 636 4706
Attention: B.J.H. Paget
By:
Electricite de France, Service National
Address: EDF Department Transport, Departement Relations avec l'Etranger,
Echanges d'Energie, 2 Rue Louis
Murat, 5eme etage, 75384 Paris, Cedex 08
Telex no: 280098 FRANCE
Facsimile no: (00 331) 40 42 63 41
Attention: P. Gaillet
(copy to: Associated Electricity Supplies Limited
Address: 53 St. George's Road, Wimbledon, London SW19 4EA
Telex no: -
Facsimile no: 0181 944 0750
Attention: P. Clubb)
By:
DATED , 1997
THE GENERATORS
named herein
- and -
THE SUPPLIERS
named herein
- and -
ENERGY SETTLEMENTS AND INFORMATION SERVICES LIMITED
as Settlement System Administrator
- and -
ENERGY POOL FUNDS
ADMINISTRATION LIMITED
as Pool Funds Administrator
- and -
THE NATIONAL GRID COMPANY plc
as Grid Operator and Ancillary Services Provider
- and -
SCOTTISH POWER plc
and
ELECTRICITE DE FRANCE, SERVICE NATIONAL
as Externally
Interconnected Parties
- and -
THE OTHER PARTIES
named herein
- and -
THE METER OPERATOR PARTIES
named herein
---------------------------------------
TWENTIETH SUPPLEMENTAL DEED
relating to the Pooling and Settlement Agreement
for the Electricity Industry
in England and Wales
---------------------------------------
2
CONTENTS
Page
1. INTERPRETATION 2
2. AMENDMENTS 2
3. CONTINUATION OF THE POOLING AND SETTLEMENT AGREEMENT 2
4. MISCELLANEOUS 2
5. ENTIRE AGREEMENT 2
6. GOVERNING LAW 3
SCHEDULE 1: Part I: The Generators 4
Part II: The Suppliers 8
SCHEDULE 2: The Other Parties 12
SCHEDULE 3: The Meter Operator Parties who are not Parties 14
SCHEDULE 4: Amendments to the Pooling and Settlement Agreement 15
SIGNATORIES 31
THIS SUPPLEMENTAL DEED is made on , 1998
BETWEEN:-
(1) THE PERSONS whose names, registered numbers and registered or principal
offices are set out in Part I of Schedule 1;
(2) THE PERSONS whose names, registered numbers and registered or principal
offices are set out in Part II of Schedule 1;
(3) ENERGY SETTLEMENTS AND INFORMATION SERVICES LIMITED (registered number
2444282) whose registered office is situate at Fairham House, Green
Lane, Clifton, Nottingham NG11 9LN as Settlement System Administrator;
(4) ENERGY POOL FUNDS ADMINISTRATION LIMITED (registered number 2444187)
whose registered office is situate at 185 Park Street, London SE1 9DY
as Pool Funds Administrator;
(5) THE NATIONAL GRID COMPANY plc (registered number 2366977) whose
registered office is situate at National Grid House, Kirby Corner Road,
Coventry CV4 8JY as Grid Operator and Ancillary Services Provider;
(6) SCOTTISH POWER plc (registered number 117120) whose principal office
is situate at 1 Atlantic Quay,
Glasgow G2 8SP, Scotland as an Externally Interconnected Party;
(7) ELECTRICITE DE FRANCE, SERVICE NATIONAL whose principal office is
situate at Departement Relations avec l'Etranger, Echanges d'Energie, 2
Rue Louis Murat, 5eme etage, 75384 Paris, Cedex 08, France as an
Externally Interconnected Party;
(8) THE OTHER PARTIES whose names, registered numbers and registered or
principal offices are set out in Schedule 2; and
(9) THE METER OPERATOR PARTIES whose names, registered numbers and
registered or principal offices are set out in Schedule 3.
WHEREAS:-
(A) by a Pooling and Settlement Agreement for the Electricity Industry in
England and Wales dated 30th March, 1990 (the "Pooling and Settlement
Agreement") the parties thereto agreed to give effect to and be bound
by certain rules and procedures for the operation of an electricity
trading pool and the operation of a settlement system;
(B) the Pooling and Settlement Agreement has been amended and/or restated
by twenty supplemental agreements, and hereinafter references to the
Pooling and Settlement Agreement are to that agreement as most recently
amended and restated; and
(C) the parties to this Deed (being (i) all the Parties at the date hereof
and (ii) all the Meter Operator Parties at the date hereof) have agreed
to amend the Pooling and Settlement Agreement on the terms and subject
to the conditions set out below.
NOW THIS DEED WITNESSES as follows:-
INTERPRETATION
Except where defined herein or where the context otherwise requires, words and
expressions defined in the Pooling and Settlement Agreement shall have
the same respective meanings when used in this Deed.
29.2 The table of contents and the headings to each of the Clauses are inserted
for convenience only and shall be ignored in construing this Deed.
AMENDMENTS
The parties hereby agree that with effect on and from midnight on
, 1998 the Pooling and Settlement
Agreement shall be amended as set out in Schedule 4.
CONTINUATION OF THE POOLING AND SETTLEMENT AGREEMENT
The Pooling and Settlement Agreement shall remain in full force and
effect and this Deed and the Pooling and Settlement Agreement shall be
treated as one document so that, upon the Pooling and Settlement
Agreement being amended pursuant to Clause 2, all references to the
Pooling and Settlement Agreement shall be treated as references to that
agreement as amended by this Deed.
MISCELLANEOUS
The provisions of Clauses 75 to 79 (inclusive) and 81 to 84 (inclusive)
of the Pooling and Settlement Agreement shall be deemed to be
incorporated herein mutatis mutandis.
ENTIRE AGREEMENT
Each party acknowledges that in entering into this Deed on the terms set out
herein it is not relying upon any representation, warranty, promise or
assurance made or given by any other party or any other person, whether
or not in writing, at any time prior to the execution of this Deed
which is not expressly set out herein.
33.2 None of the parties shall have any right of action against any other
party arising out of or in connection with any representation,
warranty, promise or assurance referred to in sub-clause 5.1 (except
in the case of fraud). GOVERNING LAW
This Deed shall be governed by, and construed in all respects in
accordance with, English law.
IN WITNESS whereof this document has been duly executed and delivered as a deed
the day and year first above written
SCHEDULE 1:
Part I: The Generators
Name Registered Registered or
Number Principal Office
AES Barry Limited 3135522 AES Barry Power Station
Sully Moors Road
Sully
Vale of Glamorgan
CF64 5YU
Anglian Power Generators Limited 2488955 Wherstead Park
Wherstead
Ipswich
Suffolk
IP9 2AQ
Barking Power Limited 2354681 Devonshire House
Mayfair House
London W1X 5FH
British Nuclear Fuels plc 1002607 Risley
Warrington
Cheshire
WA3 6AS
Celtpower Limited 2656561 13 Charles II Street
London
SW1Y 4QT
Citigen (London) Limited 2427823 100 Thames Valley
Park Drive
Reading
Berkshire
RG6 1PT
Corby Power Limited 2329494 Mitchell Road
Phoenix Parkway
Corby
Northamptonshire
NN17 5QT
Derwent Cogeneration Limited 2703635 Landsdowne House
Berkeley Square
London W1X 5DH
Eastern Merchant Generation Limited 3116225 Wherstead Park
Wherstead
Ipswich
Suffolk
IP9 2AQ
Electricite de France, Service - Department Relations avec
National I'Etranger
Echanges d'Energie
2 Rue Louis Murat
5eme etage
75384 Paris
Cedex 08
France
Elm Energy & Recycling (UK) Limited 2516685 Elm Energy House Ettingshall Road
Wolverhampton
West Midlands WV2 2LA
Fellside Heat and Power Limited 2614535 Fellside Lodge
Seascale
Cumbria CA20 1PG
Fibrogen Limited 2547498 Astley House
33 Notting Hill Gate
London W11 3JQ
Fibropower Limited 2234141 Astley House
33 Notting Hill Gate
London W11 3JQ
Fibrothetford Limited 3057688 Astley House
33 Notting Hill Gate
London W11 3JQ
First Hydro Company 2444277 Bala House
Lakeside Business Village
St. David's Park
Deeside
Flintshire
CH5 3XJ
Humber Power Limited 2571241 18 Savile Row
London
W1X 1AE
Indian Queens Power Company Limited 2928100 1 Northumberland Avenue
London
WC2N 5BW
Independent Energy UK Limited 3033406 2nd Floor, Park House
Park Street
Maidenhead
Berkshire
SL6 1SL
Keadby Generation Limited 2729513 P O Box 89, Keadby
Scunthorpe, North Lincolnshire
DN17 3AZ
Lakeland Power Limited 2355290 Roosecote Power Station
Roosecote Marsh
Barrow-in-Furness
Cumbria LA13 OPQ
Magnox Electric plc 2264251 Berkeley Centre
Berkeley
Gloucestershire GL13 9PB
Medway Power Limited 2537903 Boston House
The Little Green
Richmond TW9 1QE
Midlands Power (UK) Limited 2251099 Mucklow Hill
Halesowen
West Midlands B62 8BP
National Power plc 2366963 Windmill Hill Business Park
Whitehill Way
Swindon
Wiltshire
SN5 6PB
Nuclear Electric Limited 3076445 Barnett Way
Barnwood
Gloucester
GL4 3RS
Peterborough Power Limited 2353599 Storeys Bar Road
Peterborough PE1 5NT
PowerGen plc 2366970 53 New Broad Street
London EC2M 1JJ
Regional Power Generators Limited 2352390 Wetherby Road
Scarcroft,
Leeds LS14 3HS
Rocksavage Power Company Limited 18868 20 St. James's Street
London SW10 4UJ
Scottish Hydro-Electric plc 117119 10 Dunkeld Road
Perth PH1 5WA
Scottish Power plc 117120 1 Atlantic Quay
Glasgow G2 8SP
Seabank Power Limited 2591188 Severn Road Hallen
Bristol BS10 7SP
Slough Energy Supplies Limited 2474514 234 Bath Road
Slough SL1 4EE
Teesside Power Limited 2464040 4 Millbank
London SW1P 3ET
Winterton Power Limited 3001798 800 Park Avenue
Aztec West
Almondsbury
Bristol BS12 4SE
Part II: The Suppliers
Name Registered Registered or
Number Principal Office
British Gas Trading Ltd 3078711 Charter Court
50 Windsor Road
Slough
Berkshire SL1 2HA
British Nuclear Fuels plc 1002607 Risley
Warrington
Cheshire WA3 6AS
Candecca Resources Limited 953066 Welton Gathering Centre
Barfield Lane
Off Wragby Road
Sudbrooke
Lincoln LN2 2QU
Citigen (London) Limited 2427823 100 Thames Valley
Park Drive
Reading
Berkshire
RG6 1PT
Crosfield Limited 48745 Bank Quay
PO Box 26
Warrington
Cheshire WA5 1AB
Eastern Electricity plc 2366906 Wherstead Park
PO Box 40
Wherstead
Ipswich
Suffolk IP9 2AQ
East Midlands Electricity plc 2366923 PO Box 444
Woodyard Lane
Wollaton
Nottingham NG8 1EZ
Electricite de France, Service - Department Relations avec
National l'Etranger
Echanges d'Energie
2 Rue Louis Murat
5eme etage
75384 Paris
Cedex 08
Electricity Direct (UK) Limited 3174056 1 Livingstone Road
Hove
East Sussex
BN3 3WP
Energy Supply Contracts Limited 172268 The Havens
Ransomes Europark
Ipswich
Suffolk IP3 9SJ
Enron Gas and Petrochemicals Trading 3003823 4 Millbank
Limited London SW1P 3ET
Impkemix Energy Limited 2076043 The Heath
Runcorn
Cheshire WA7 4QF
Independent Energy UK Limited 3033406 2nd Floor Park House
Park Street Maidenhead
Berkshire SL6 1SL
London Electricity plc 2366852 Templar House
81-87 High Holborn
London WC1V 6NU
Magnox Electric plc 2264251 Berkeley Centre
Berkeley
Gloucestershire GL13 9PB
Manweb plc 2366937 Manweb House
Chester Business Park
Chester CH4 9RF
Midlands Electricity plc 2366928 Mucklow Hill
Halesowen
West Midlands B62 8BP
National Power plc 2366963 Windmill Hill Business Park
Whitehill Way
Swindon
Wiltshire
SN5 6PB
Norsk Hydro (UK) Limited 841421 Bridge House
69 London Road
Twickenham
Middlesex TW1 3RH
Northern Electric plc 2366942 Carliol House
Market Street
Newcastle upon Tyne NE1 6NE
NORWEB plc 2366949 PO Box 14
410 Birchwood Boulevard
Birchwood
Warrington WA3 7GA
Nuclear Electric Limited 3076445 Barnett Way
Barnwood
Gloucester
GL4 3RS
PowerGen plc 2366970 53 New Broad Street
London EC2M 1JJ
Scottish Hydro-Electric plc 117119 10 Dunkeld Road
Perth PH1 5WA
Scottish Power plc 117120 1 Atlantic Quay
Glasgow G2 8SP
SEEBOARD plc 2366867 Forest Gate
Brighton Road
Crawley
West Sussex RH11 9BH
Shell Power Limited 2559630 Rowlands Way
Withenshawe
Manchester M22 5SB
Slough Energy Supplies Limited 2474514 234 Bath Road
Slough SL1 4EE
Southern Electric plc 2366879 Westacott Way
Littlewick Green
Maidenhead
Berkshire SL6 3QB
South Wales Electricity plc 2366985 Newport Road
St. Mellons
Cardiff CF3 9XW
South Western Electricity plc 2366894 800 Park Avenue
Aztec West
Almondsbury
Bristol BS12 4SE
The Renewable Energy Company Limited 3043412 Stroud House
Russell Street
Stroud
Gloucestershire
GL5 3AN
UK Electric Power Limited 2844010 21 St. Thomas Street
Bristol BS1 6US
UML Limited 661900 PO Box 115
Port Sunlight
Wirral
Merseyside
L62 4ZL
Yorkshire Electricity Group plc 2366995 Wetherby Road
Scarcroft
Leeds LS14 3HS
SCHEDULE 2:
The Other Parties
Name Registered Registered or
Number Principal Office
Accord Energy Limited 2877398 Rivermill House
152 Grosvenor Road
London SW1V 3JL
AES Partington Limited 3210149 Burleigh House
17-19 Worple Way
Richmond
Surrey
TW10 6AG
Alcan Aluminium UK Limited 750143 Chalfont Park
Gerrards Cross
Buckinghamshire
SL9 0QB
BP Chemicals Limited 194971 Baglan Bay Works
Port Talbot
West Glamorgan
SA12 7BP
BG plc 2006000 100 Thames Valley
Park Drive
Reading
Berkshire RG6 1PT
Cabah Energy Limited 2759706 190 Strand
London WC2R 1JN
Cottam Development Centre Limited 3273552 c/o PowerGen plc
Westwood Way
Westwood Business Park
Coventry CV4 8LG
Enfield Energy Centre Limited 2796628 Concorde House
Concorde Way
Stockton on Tees
Cleveland
TS18 3RB
Hydro Electric Energy Limited 2487475 Royex House
Aldermanbury Square
London EC2V 7LD
Keadby Power Limited 2548042 PO Box 89
Keadby
Scunthorpe
North Lincolnshire
DN17 3AZ
Kingsnorth Power Limited 2656343 Chancery House
53-64 Chancery Lane
London WC2A 1QU
Meter Operators Limited 2841018 Lynton House
7-12 Tavistock Square
London WC1H 9BQ
Pentex (East Midlands) Limited 2275006 Union Buildings
15 Union Street
Aberdeen AB1 2BU
Saltend Cogeneration Company Limited 3274929 Britannic House
1 Finsbury Circus
London EC2M 7BA
Spalding Energy Company Limited 19668 20 St. James's Street
London SW1A 1ES
SCHEDULE 3:
The Meter Operator Parties who are not Parties
Name Registered Registered or
Number Principal Office
Control Devices and Systems Limited 1242585 PO Box 56
101 Mill Lane
Newbury
Berkshire
RG14 5RE
Datum Solutions Limited 2815238 185 Park Street
London
SE1 9DY
DrakMarn O&M Ltd 3124701 53 New Broad Street
London EC2M 1JJ
E. Squared Limited 2674129 Almac House
Church Lane
Bisley
Surrey
GU24 9DR
Northern Energy Services Limited 2868141 5 Derwent Place
Spotborough
Doncaster
DN5 7PN
PowerMet Limited 2877912 3 Park Place
London SW1A 1LP
Schlumberger Industries Limited 534821 1 Kingsway
London WC2B 6XH
Stanor National Contracts Limited 2769170 7-12 Tavistock Square
London WC1H 9BQ
The Challenge Group - 22 Tally Road
Oxted
Surrey RH8 0TG
18
SCHEDULE 4:
Amendments to the Pooling and Settlement Agreement
The Pooling and Settlement Agreement shall be amended:
(i) by:
(a) the deletion of "and" in Clause 6.2.1(b);
(b) the addition of "and" after the semi-colon in Clause 6.2.1
(c); and
(c) the insertion of the following new Clause 6.2.1(d):
"(d) sub-section 5.7 of Schedule 25;"; and
(ii) by the deletion of existing Schedule 25 and by the insertion in its
place of the following new
Schedule 25:
"SCHEDULE 25
Accreditation
PART 1 : INTERPRETATION
Definitions: In this Schedule, unless the context otherwise requires:
"1998 Programme" has the meaning given to that term in Schedule 22;
"Accreditation" means, subject to sub-section 5.7, written confirmation
by the Accreditation Authority that an Applicant has, in the opinion of
the Accreditation Authority, satisfied the relevant Accreditation
Requirements, and "Accredited" shall be construed accordingly;
"Accreditation Administrator" means the person (if any) for the time
being and from time to time appointed pursuant to Part 3 as the
Accreditation Administrator for the purposes of this Schedule;
"Accreditation Authority" means the person for the time being and from
time to time appointed pursuant to Part 2 as the Accreditation
Authority for the purposes of this Schedule;
"Accreditation Process" means the process set out in this Schedule and
Agreed Procedure 531 whereby an Applicant is assessed to determine
whether it satisfies the Accreditation Requirements;
"Accreditation Requirements" means, in relation to an Applicant, the
requirements which that Applicant is required to satisfy in order to
perform the specific function or functions for which it is applying to
be Accredited (being one or more of the functions associated with the
categories referred to in paragraphs (a) to (k) (inclusive) of
sub-section 2.3), as determined for the time being and from time to
time by Pool Members in general meeting;
"Agency System" means, in relation to an Applicant, the particular
systems and procedures of that Applicant (or for which that Applicant
is responsible) relevant to the specific function for which it is
applying to be Accredited;
"Applicant" means a person who falls within one or more of the
categories referred to in paragraphs (a) to (k) (inclusive) of
sub-section 2.3 and who, in accordance with this Schedule, applies for
one or more of its Agency Systems to be Certified and/or for itself to
be Accredited and, where the context so admits, shall include a person
applying for re-Certification of any of its Agency Systems in
accordance with this Schedule;
"Certification" means written confirmation by the Accreditation
Authority that a particular Agency System of an Applicant has, in the
opinion of the Accreditation Authority, satisfied the Certification
Requirements and, where the context so admits, shall include
re-Certification of Agency Systems, and "Certify" and "Certified" shall
be construed accordingly;
"Certification Agent" means the person for the time being and from time
to time appointed pursuant to Part 4 as the Certification Agent for the
purposes of this Schedule;
"Certification Documentation" has the meaning given to that term in
paragraph 4.3.1;
"Certification Process" means the process set out in this Schedule and
Agreed Procedure 531 whereby a particular Agency System of an Applicant
is assessed to determine whether it satisfies the Certification
Requirements;
"Certification Requirements" means, in relation to any of the Agency
Systems of an Applicant, the requirements which such Agency System is
required to satisfy in order to perform the specific function or
functions for which the Applicant is applying to have such Agency
System Certified (being one or more of the functions associated with
the categories referred to in paragraphs (a) to (k) (inclusive) of
sub-section 2.3), as determined for the time being and from time to
time by Pool Members in general meeting;
"Dissatisfied Applicant" has the meaning given to that term in
paragraph 5.7.1;
"Interested Person" has the meaning given to that term in section 7;
"Menu of Certification Fees" means the scale of fees to be charged to
Applicants in connection with the Certification Process, as set out in
Agreed Procedure 531; and
"Pool" has the meaning given to that term in Schedule 22.
Interpretation: In this Schedule, except where the context otherwise requires:
1.2.1 references to any Agency System of an Applicant include any
Agency System for which that Applicant is responsible; and
1.2.2 references to a particular Part, Section, sub-section or
paragraph or to any Annex shall be a reference to that Part,
Section, sub-section or paragraph of, or Annex to, this
Schedule.
PART 2 : THE ACCREDITATION AUTHORITY
Appointment, removal and indemnification of Accreditation Authority:
2.1.1 The Executive Committee shall act as, and shall perform the
functions of, the Accreditation Authority pursuant to
Clause 24.2.31 (and Pool Members shall procure that the
Executive Committee so acts and performs) until such time
as Pool Members in general meeting otherwise resolve.
2.1.2 Pool Members in general meeting shall have the right to
appoint and remove the Accreditation Authority from time to
time and (subject to sub-section 2.4) to agree, amend and
substitute the terms of engagement of the Accreditation
Authority.
2.1.3 Unless otherwise determined by Pool Members in general
meeting, the costs, fees, expenses, liabilities and losses
of, and all other amounts incurred or paid by, the
Accreditation Authority shall be dealt with in accordance
with the PFA Accounting Procedure.
2.1.4 In addition and without prejudice to paragraph 2.1.3, all
Pool Members shall jointly and severally indemnify and keep
indemnified:
(a) the Executive Committee and each of the Committee
Members from and against any and all costs
(including legal costs), charges, expenses, damages
or liabilities incurred or suffered by it or him in
acting as, and in performing the functions of, the
Accreditation Authority or (as the case may be) a
member of the Accreditation Authority; and
(b) any sub-committee or sub-group of the Executive
Committee which provides advice to the Accreditation
Authority or the Accreditation Administrator or
undertakes work at the request of the Accreditation
Authority in connection with the Accreditation
Process and/or the Certification Process and each
member thereof from and against any and all costs
(including legal costs), charges, expenses, damages
or liabilities incurred or suffered by it or him in
providing such advice or (as the case may be)
undertaking such work,
and, as between the Pool Members, according to their
respective Contributory Shares at the time of receipt of
the request for indemnification. The Pool Members shall,
upon request, provide the members of the Accreditation
Authority and the members of any such sub-committee or
sub-group with a written deed of indemnity to that effect.
Accreditation Authority's functions: The functions of the Accreditation
Authority shall be confined to the operational requirements of Pool
Members collectively in their capacity as such and (subject as
aforesaid) shall be as set out in this Schedule and Agreed Procedure
531 and shall include such powers and authorities as may be necessary
or incidental to the performance of such functions.
35.3 Categories of Applicant: On the terms and subject to the conditions of this
Schedule, the Accreditation Authority shall be responsible for the Certification
of each of the Agency Systems of, and the Accreditation of, Applicants falling
within the following categories:
(a) PES registration service providers;
(b) non half hourly data collectors;
(c) non half hourly data aggregators;
(d) non half hourly meter operators;
(e) half hourly data collectors;
(f) half hourly data aggregators;
(g) half hourly meter operators;
(h) teleswitch operators;
(i) meter administrators;
(j) data transfer service providers; and
(k) such other categories of person, if any, as the Executive
Committee, with the prior written consent of the Director, may
determine.
ExecutiveCommittee as Accreditation Authority: The provisions of Clauses 15.13,
16.9, 17.4, 18, 19, 20.4 and 22 to 24 (inclusive) shall apply in
relation to the Executive Committee, the Committee Members, the Pool
Chairman, the Chief Executive, the personnel referred to in Clause
17.2.1 and the Secretary when the Executive Committee is acting as, and
performing the functions of, the Accreditation Authority provided that:
2.4.1 notice of meetings of the Accreditation Authority need be
given only to the Committee Members, the Pool Chairman, the
Chief Executive (if any), the Pool Auditor, the
Certification Agent and the Accreditation Administrator
and, insofar as concerns the Certification of the Agency
System of an Applicant or the Accreditation of an
Applicant, that Applicant. Clause 18.1.2 shall be modified
accordingly;
2.4.2 if any Committee Member or the Certification Agent or the
Accreditation Administrator wishes to advise additional
matters which he or it wishes to be considered at a meeting
of the Accreditation Authority he or it shall give notice
to all other persons entitled to attend that meeting no
later than three working days before the date of the
meeting (or such lesser period as the Accreditation
Authority may from time to time determine).
Clause 18.1.4 shall be modified accordingly;
2.4.3 minutes of meetings of the Accreditation Authority shall be
confidential and copies shall be required to be provided
only to those persons who were entitled to attend the
relevant meeting and, insofar as concerns the Certification
of the Agency System of an Applicant or the Accreditation
of an Applicant, that Applicant. Clause 18.1.6 shall be
modified accordingly;
2.4.4 each of the Pool Chairman, the Chief Executive, the Pool
Auditor, the Certification Agent and the Accreditation
Administrator (or its or his respective duly appointed
representative) shall have the right to attend and speak
(but not to vote) at meetings of the Accreditation
Authority. The Chief Executive (or his duly appointed
representative) shall be obliged so to attend. With the
exception of the final sentence of Clause 19.4, that Clause
shall not apply;
2.4.5 save for Clause 20.4, Clause 20 shall not apply;
2.4.6 any question or matter arising at a meeting of the
Accreditation Authority shall be decided by a 75 per cent.
majority of the votes cast at the meeting by Committee
Members entitled to vote in accordance with Section 2.4.10.
On any such question or matter each Committee Member shall
be entitled to one vote. Clause 22.2 shall not apply;
2.4.7 a decision duly made at a meeting of the Accreditation
Authority shall (unless otherwise determined by the
Accreditation Authority or otherwise provided by the terms
of the decision) have immediate effect. Clause 22.4 shall
not apply;
2.4.8 Clauses 22.3 and 22.5 to 22.11 (inclusive) shall not apply:
in particular, but without prejudice to the generality of
the foregoing, no decision of the Accreditation Authority
shall be referred to Pool Members in general meeting;
2.4.9 Clauses 23.1, 23.2, 23.3.4, 23.6 and 23.7 shall not apply;
2.4.10 a Committee Member in his capacity as a member of the
Accreditation Authority shall be required to act
independently of the interests of his employer and of those
Pool Members whose interests he represents when acting as a
member of the Executive Committee. In particular, but
without prejudice to the generality of the foregoing:
(a) a Committee Member shall not:
(i) participate as a member of the
Accreditation Authority in the
consideration of whether his employer's
Agency Systems should be Certified or
whether his employer should be
Accredited;
(ii) be counted in ascertaining whether a
quorum is present at a meeting of the
Accreditation Authority convened to
consider whether his employer's Agency
Systems should be Certified or whether
his employer should be Accredited; or
(iii) be entitled to receive any working
papers, opinions, reports or other
documentation which have been prepared
for the Accreditation Authority in
connection with the Certification
Process or Accreditation Process of his
employer;
(b) a Committee Member shall not disclose to his
employer confidential information which he has
received in his capacity as a member of the
Accreditation Authority unless:
(i) required to do so by any Competent Authority
or by law;
(ii) in order for his employer to comply with the
conditions of any Licence with which his
employer is required to comply;
(iii)required to do so by any stock exchange or
regulatory authority or the Panel on
Take-overs and Mergers; or
(iv) pursuant to the arbitration rules of the
Electricity Arbitration Association or
pursuant to any judicial or other arbitral
process or tribunal having jurisdiction in
relation to him or his employer,
in any of which events the Committee Member shall
first be required to give written notice of the
required disclosure to the Accreditation
Authority; and
2.4.11 references to a Committee Member shall for the purposes of
this Schedule include a reference to a Committee Member in
his capacity as a member of the Accreditation Authority.
2.5 Delegation:
2.5.1 The Accreditation Authority shall have the right at any
time and from time to time to delegate or procure the
delegation of all or any part of the day-to-day
administration of the Accreditation Process to the
Accreditation Administrator. For the avoidance of doubt,
this shall not include the taking of any decision as to
whether the Agency Systems of an Applicant (or any of them)
should be Certified or the Applicant should be Accredited.
2.5.2 The Accreditation Authority shall be responsible for every
act, breach, omission, neglect and failure of the
Accreditation Administrator.
2.6 Responsibilities owed to Pool Members alone: In acting as the
Accreditation Authority, the Executive Committee shall have due regard
to the collective interests of Pool Members. The responsibilities of
the Accreditation Authority under this Schedule are owed exclusively
to Pool Members collectively, and to no other person. In particular,
but without prejudice to the generality of the foregoing, Suppliers
shall be required to satisfy themselves as to the financial condition
and prospects and the management and operational ability of any
Accredited person and shall not rely on the fact of Accreditation (or
the lack of Accreditation) as, or infer therefrom, any representation,
warranty or other statement or indication on the part of the
Accreditation Authority, the Accreditation Administrator or the
Certification Agent that the Accredited person has any or any
particular financial condition or prospects or level of management or
operational ability.
PART 3 : THE ACCREDITATION ADMINISTRATOR
Appointment and removal of Accreditation Administrator: The Accreditation
Administrator shall be appointed and removed from time to time by the
Accreditation Authority acting on behalf of all Pool Members. The
Accreditation Authority shall have the right on behalf of all Pool
Members to agree, amend and substitute the terms of engagement of the
Accreditation Administrator.
36.2 Pool Members' authorisation: Pool Members hereby irrevocably and
unconditionally authorise the Accreditation Authority to appoint and remove, and
to agree, amend and substitute the terms of engagement of, the Accreditation
Administrator on their behalf and undertake not to withdraw or change that
authority. 36.3 Functions of Accreditation Administrator:
3.3.1 The Accreditation Administrator shall perform such functions
associated with the day-to-day administration of the
Accreditation Process as are delegated to it from time to time
by the Accreditation Authority. A copy of any such delegated
functions will be made available by the Accreditation
Authority to Pool Members on request.
3.3.2 The Accreditation Administrator shall keep confidential
information that it receives in its capacity as Accreditation
Administrator on terms agreed from time to time by it with the
Accreditation Authority.
PART 4 : THE CERTIFICATION AGENT
Appointment and removal of Certification Agent: The Accreditation Authority
shall, from time to time, appoint and remove a Certification Agent on
behalf of all Pool Members. The first Certification Agent shall be
Coopers & Lybrand. Subject to Clause 48.11, the Accreditation Authority
shall have the right on behalf of all Pool Members to agree, amend and
substitute the terms of engagement of the Certification Agent.
37.2 Pool Members' authorisation: Pool Members hereby irrevocably and
unconditionally authorise the Accreditation Authority to appoint and remove, and
to agree, amend and substitute the terms of engagement of, the Certification
Agent on their behalf and undertake not to withdraw or change that authority.
37.3 Functions of Certification Agent: The functions of the Certification Agent
shall be:
4.3.1 to prepare the self-assessment certification returns to be
completed by each Applicant and the supporting Pool
documentation (including guidance notes) to be used by the
Certification Agent in the Certification Process (together the
"Certification Documentation"), to submit the Certification
Documentation to the Accreditation Authority for approval and
to revise (and resubmit for approval) the Certification
Documentation in accordance with the instructions of the
Accreditation Authority from time to time;
4.3.2 to carry out the Certification Process in accordance with
applicable English law, the terms set out in this Schedule and
Agreed Procedure 531 and the approved Certification
Documentation;
4.3.3 to exercise the skill, care and diligence in the preparation
and revision of the Certification Documentation (recognising
that the Certification Agent is required to give effect to the
instructions of the Accreditation Authority under paragraph
4.3.1) and in the performance of the Certification Process
reasonably to be expected of a firm of accountants of
internationally recognised standing (or to such other standard
of skill, care and diligence as may be agreed by the
Accreditation Authority with the Certification Agent from time
to time); and
4.3.4 in respect of each application for Certification, to deliver
an opinion of the Certification Agent addressed to the
Accreditation Authority (for itself and on behalf of all Pool
Members) as to whether the Applicant's Agency System has met
the Certification Requirements.
Responsibilities owed to Accreditation Authority: The responsibilities of the
Certification Agent under this Schedule are owed exclusively to the
Accreditation Authority for itself and Pool Members collectively and to
no other person provided that the Pool Auditor shall be entitled to
rely on all opinions of the Certification Agent delivered pursuant to
paragraph 4.3.4.
37.5 Confidentiality undertaking: Before commencing the Certification Process
with respect to the Agency Systems of any Applicant, the Certification Agent
shall execute a confidentiality undertaking in favour of such Applicant in such
form as may from time to time be agreed by the Accreditation Authority with the
Certification Agent.
PART 5 : THE CERTIFICATION PROCESS AND ACCREDITATION PROCESS
The Certification Process and Accreditation Process:
5.1.1 The Certification Process and the Accreditation Process shall
be conducted in accordance with Agreed Procedure 531.
5.1.2 Notwithstanding paragraph 5.1.1, in reaching its decision as
to whether the Agency Systems of an Applicant (or any of them)
should be certified or an Applicant should be Accredited, the
Accreditation Authority shall be required to give effect to
any instruction given to it by Pool Members in general meeting
(whether of general application to the Certification Process
or the Accreditation Process or specific to one or more Agency
Systems or Applicants) and to any determination made by Pool
Members in general meeting with respect to the Accreditation
Requirements or the Certification Requirements.
5.1.3 Agreed Procedure 531 shall not conflict with the provisions of
this Schedule and, to the extent of any conflict or
inconsistency between the two, the provisions of this Schedule
shall prevail.
5.1.4 The Accreditation Authority shall provide copies of the latest
version of this Schedule and Agreed Procedure 531 to
Applicants.
5.1.5 The Accreditation Authority shall, subject to sub-section 6.2,
provide each Applicant with a copy of all opinions of the
Certification Agent in relation to the Agency System(s) of
that Applicant delivered pursuant to paragraph 4.3.4 at the
same time as the Accreditation Authority notifies such
Applicant whether its Agency System(s) has (have) been
Certified and/or (as the case may be) such Applicant has been
Accredited. The Accreditation Authority shall be under no
obligation to provide an Applicant with a copy of any such
opinion at any time before it gives such notification.
5.1.6 The Accreditation Authority shall make available to the
Director all information held by the Accreditation Authority
which the Director reasonably requires for the purposes of
making any determination pursuant to sub-section 5.7.
No Certification: The Accreditation Authority shall not Certify the Agency
System of any Applicant unless the Certification Agent has provided an
opinion (not being a disclaimer of opinion, howsoever called) in the
terms of paragraph 4.3.4 in relation to that Agency System.
38.3 Loss of Certified or Accredited status: The Accreditation Authority shall
have the right at any time and from time to time in accordance with Agreed
Procedure 531:
5.3.1 to remove the Certification of all or any of the Agency
Systems of any person, whereupon such Agency System(s) shall
cease to be Certified; and/or
5.3.2 to remove the Accreditation of any person, whereupon such
person shall cease to be Accredited.
Re-certification: Each person who has been Accredited shall be required to have
some or all of its Agency Systems re-Certified in accordance with
Agreed Procedure 531. If any such Agency System is not so re-Certified,
such person's Accreditation shall automatically lapse.
38.5 Fees and expenses:
5.5.1 The Accreditation Authority shall determine and publish to
Applicants and to those persons who have been Accredited a
Menu of Certification Fees which shall be charged directly to
Applicants for the purposes of Certification, and the
Accreditation Authority shall have the right to revise such
fees from time to time.
5.5.2 Each Applicant shall pay its own costs and expenses incurred
in connection with the Certification Process and the
Accreditation Process.
Applicants bound by this Schedule: Applicants shall agree to be bound by the
Certification Process, the Accreditation Process, the provisions of
this Schedule and Agreed Procedure 531 by the execution of a letter
agreement in form and content satisfactory to the Accreditation
Authority.
38.7 Referral to the Director:
5.7.1 The sole and exclusive remedy of an Applicant who is
dissatisfied with the decision of the Accreditation Authority
to refuse to Accredit such Applicant (the "Dissatisfied
Applicant") shall be to refer the matter to the Director in
accordance with this sub-section 5.7 for determination.
5.7.2 To be a valid referral pursuant to paragraph 5.7.1, the
Dissatisfied Applicant must:
(a) refer the matter for determination to the Director in
writing (with a copy to the Accreditation Authority)
no later than 14 days after receipt by the
Dissatisfied Applicant of the decision of the
Accreditation Authority refusing to Accredit it; and
(b) set out in its referral to the Director (with reasons
in support) the ground or grounds on which the
Dissatisfied Applicant is making its application to
the Director which shall be one or more of the
following (and no other):
(i) that the Accreditation Authority has not
followed the procedures set out in this
Schedule and Agreed Procedure 531 in
considering whether the Dissatisfied
Applicant should be Accredited; or
(ii) that the Accreditation Authority has given
undue weight to particular evidence submitted
or to the lack of particular evidence in
connection with the Dissatisfied Applicant's
application for Accreditation; or
(iii) that the Accreditation Authority has
misinterpreted all or some of the evidence
submitted in connection with such
application; or
(iv) that, notwithstanding any restrictions that
Pool Members may place on the Accreditation
Authority as to how it is to assess and
decide Applications, the Accreditation
Authority should not have taken into account
the failure by the Dissatisfied Applicant to
satisfy one or more specified Accreditation
Requirements.
5.7.3 On a valid referral pursuant to paragraph 5.7.1 the Director
may either determine the matter himself or, if he thinks fit,
refer the matter for determination by an arbitrator appointed
by him and, subject to paragraph 5.7.4, the practice and
procedure to be followed in connection with any such
determination shall be such as the Director may consider
appropriate.
5.7.4 In connection with any referral pursuant to paragraph 5.7.1
which the Director determines himself, the Director shall
have:
(a) the right to engage an independent consultant selected by
the Director and to take and rely on the advice of such
independent consultant; and
(b) the discretion to make a determination that the
Dissatisfied Applicant should be Accredited
notwithstanding that the ground on which the
Dissatisfied Applicant has applied to the Director is
either the wrong ground or has not been proven.
5.7.5 The determination of the Director or, as the case may be, the
arbitrator pursuant to paragraph 5.7.3 shall be final,
conclusive and binding on the Dissatisfied Applicant, the
Accreditation Authority and all Pool Members and may include a
provision as to the payment in respect of the costs and
expenses incurred by the person making the determination. The
Dissatisfied Applicant, the Accreditation Authority and all
Pool Members shall promptly give effect to any such
determination.
5.7.6 For the avoidance of doubt, neither Clause 83 nor Clause 84
shall apply in the case where an Applicant is dissatisfied
with the decision of the Accreditation Authority to refuse to
Accredit such Applicant. This sub-section 5.7 provides the
sole and exclusive remedy of a Dissatisfied Applicant. Parties
and Applicants shall not use, or seek to use, those Clauses or
any other provisions of this Agreement to thwart or challenge
referrals to the Director pursuant to paragraph 5.7.1.
Exclusionof other appeals: Save for any reference to the Director in accordance
with sub-section 5.7, in respect of any matter concerning the
Certification of any particular Agency Systems or the Accreditation of
any person all reference or appeal procedures in this Agreement to or
involving the Director are expressly excluded.
PART 6 : APPLICANT'S RESPONSIBILITIES
Applicant's warranty and undertakings: Each Applicant represents, warrants and
undertakes to each of the Pool Members (for itself and as trustee and
agent for the Accreditation Authority, the Accreditation Administrator
and the Certification Agent) that:
6.1.1 all information supplied by or on behalf of the Applicant to
the Accreditation Authority, the Accreditation Administrator
or the Certification Agent in connection with the
Certification Process or the Accreditation Process is true,
complete and accurate and not misleading because of any
omission or ambiguity or for any other reason, subject to
disclosure, if any, acceptable to the Accreditation Authority
being made in advance of the provision of the relevant
information to the Accreditation Authority, the Accreditation
Administrator or (as the case may be) the Certification Agent;
6.1.2 (a) completion of all documentation by or on behalf of
the Applicant in connection with the Certification
Process or the Accreditation Process is and will
remain the sole responsibility of the Applicant;
(b) the Applicant will duly complete all such
documentation and provide all the information required
thereunder within the time periods prescribed by
Agreed Procedure 531; and
(c) the Applicant has had the opportunity to take its own
legal and other professional advice regarding the
Certification Process and the Accreditation Process;
6.1.3 it will confirm in writing to the Accreditation Authority (for
itself and on behalf of all Pool Members, Accreditation
Authority and the Certification Agent) in accordance with
Agreed Procedure 531 that each of the other representations,
warranties and undertakings in this sub-section 6.1 are true
and have been complied with as at the date on which it has
been notified that its application(s) for Certification and/or
Accreditation will be considered by the Accreditation
Authority; and
6.1.4 the Applicant will co-operate fully with the Accreditation
Authority, the Accreditation Administrator and the
Certification Agent in the Certification Process and the
Accreditation Process and, without prejudice to the generality
of the foregoing, shall permit each of them reasonable access
to the Applicant's business records, working papers and
employees for the purposes of each such process upon not less
than three working days' advance notice.
No reliance by Applicant: The Applicant acknowledges and agrees that:
6.2.1 it shall not, and shall not be entitled to, place any reliance
on any working papers, opinion, report or other documentation
prepared by or for (or any oral or written interpretation of,
or any oral or written advice given in relation to, any such
working papers, opinion, report or other documentation by) the
Accreditation Authority, the Accreditation Administrator or
the Certification Agent in connection with the Certification
Process or the Accreditation Process unless such working
papers, opinion, report or other documentation is expressly
addressed to such Applicant; and
6.2.2 it shall keep confidential on the terms set out in Clause 70
any working papers, opinions, report or other documentation
referred to in paragraph 6.2.1 unless such working papers,
opinion, report or other documentation is expressly addressed
to such Applicant.
PART 7 : LIMITATION OF LIABILITY
Limitation of liability: Each Applicant, each person who has (or whose
Agency Systems have) been Certified or Accredited (or whose
Certification or Accreditation has been removed) and each Pool Member
(each an "Interested Person") agrees that:
7.1 the total aggregate liability of the Accreditation Authority
and the Accreditation Administrator to any Interested Person
whether in contract, tort (including negligence or breach of
statutory duty) or otherwise arising directly or indirectly
for or in connection with the Certification Process or the
Accreditation Process (including the contents of any opinion
or report prepared by the Accreditation Authority or the
Accreditation Administrator) shall in no circumstances exceed
(pound)5,000,000;
7.2 neither the Accreditation Authority nor the Accreditation
Administrator shall be liable to any Interested Person for any
loss of profit, loss of revenue, loss of contract, loss of
goodwill or any indirect or consequential loss arising from or
in connection with the Certification Process or the
Accreditation Process;
7.3 sub-sections 7.1 and 7.2 shall not exclude the liability of
the Accreditation Authority or
the Accreditation Administrator for fraud;
7.4 the exclusions from and limitations of liability of the
Accreditation Authority and the Accreditation Administrator
under this section shall not apply to death or personal injury
caused by the negligence of the relevant one of the
Accreditation Authority or the Accreditation Administrator;
7.5 the exclusions from and limitations of liability of the
Accreditation Authority and the Accreditation Administrator
under this Section 7 are reasonable because of (amongst
other matters) the likelihood that the amount of damages
awardable to the Interested Person from the Accreditation
Authority or the Accreditation Administrator would otherwise
be disproportionate to the charges which it makes in
connection with the Certification Process or the
Accreditation Process and because of the limited resources
and expertise of the Accreditation Authority and the
Accreditation Administrator;
7.6 the exclusions from and limitations of liability of the
Accreditation Authority and the Accreditation Administrator
under this Section 7 shall be considered severally and the
invalidity or unenforceability of any one sub-section shall
not affect the validity or enforceability of any other
sub-section; and
7.7 the exclusions from and limitations of liability of the
Certification Agent are set out in the terms of its engagement
referred to in sub-section 4.1 and shall apply to this
Schedule as if the same were set out in full herein.
PART 8 : DISAPPLICATION PROVISIONS
Disapplication:
8.1 Parts III and V of this Agreement shall not apply in or to
this Schedule except, in the case of Part III, in respect of
any action under this Schedule which Pool Members in general
meeting are entitled or required by the terms of this Schedule
to take.
8.2 If, and for long as, the Pool Auditor is also appointed as the
Certification Agent, the provisions of Clause 48.11 shall
apply.".
SIGNATORIES
THE GENERATORS
AES Barry Limited
Address: AES Barry Power Station, Sully Moors Road, Sully, Vale of Glamorgan,
CF64 5YU
Facsimile no: 01222 531714
Attention: Scott Miller
By:
Anglian Power Generators Limited
Address: Kings Lynn Power Station, Willows Business Park, Saddlebow, Kings
Lynn, Norfolk PE34 3RD
Facsimile no: 01733 894164
Attention: W. Burrough
By:
Barking Power Limited
Address: Barking Power Station, Chequers Lane, Dagenham, Essex RM9 6PF
Facsimile no: 0181 984 5174
Attention: M.D. Jones
By:
British Nuclear Fuels plc
Address: F13, Sellafield, Seascale, Cumbria CA20 1PG
Facsimile no: 019467 27132
Attention: P.L. O'Neill, Business Manager, Electricity Generation
By:
CeltPower Limited
Address: Plas Yn Dre Broad Street, Newtown, Powys SY16 2NA
Facsimile no: 01686 629887
Attention: J. Matthew
By:
Citigen (London) Limited
Address: 47-53 Charterhouse Street, London EC1M 6HA
Facsimile no: 0171 253 9319
Attention: S.P. Chandler
By:
Corby Power Limited
Address: Mitchell Road, Phoenix Parkway, Corby, Northamptonshire NN17 5QT
Facsimile no: 01536 402619
Attention: General Manager
By:
Derwent Cogeneration Limited
Address: P.O. Box 489, Spondon, Derby DE21 7ZS
Facsimile no: 01332 669829
Attention: J. Unwin
By:
Eastern Merchant Generation Limited
Address: Wherstead Park, Wherstead, Ipswich, Suffolk IP9 2AQ
Facsimile no: 01473 552941
Attention: Coral Woodard
By:
Electricite de France, Service National
Address: EDF Production Transport, Department Relations avec l'Etranger,
Echanges d'Energie, 2 Rue Louis Murat, 5eme etage, 75384, Paris Cedex
08
Facsimile no: (00 331) 40 42 63 41
Attention: P. Gaillet
(copy to: Associated Electricity Supplies Limited
Address: 53 St George's Road, Wimbledon, London SW19 4EA
Facsimile no: 0181 944 0750
Attention: P. Clubb)
By:
Elm Energy & Recycling (UK) Limited
Address: Elm Energy House, Ettingshall Road, Wolverhampton, West
Midlands WV2 2LA
Facsimile no: 01902 408517
Attention: M.D. Wyckoff
By:
Fellside Heat and Power Limited
Address: Fellside Lodge, Seascale, Cumbria CA20 1PG
Facsimile no: 01946 721130
Attention: J.A. Bartlett
By:
Fibrogen Limited
Address: Astley House, 33 Notting Hill Gate, London W11 3JQ
Facsimile no: 0171 221 8671
Attention: R. Fraser
By:
Fibropower Limited
Address: Astley House, 33 Notting Hill Gate, London W11 3JQ
Facsimile no: 0171 221 8671
Attention: R. Fraser
By:
Fibrothetford Limited
Address: Astley House, 33 Notting Hill Gate, London W11 3JQ
Facsimile no: 0171 221 8671
Attention: Rupert Fraser
By:
First Hydro Company
Address: Bala House, Lakeside Business Village, St. Davids Park, Deeside,
Flintshire CH5 3XJ
Facsimile no: 01244 520697
Attention: B. Stalker
By:
Humber Power Limited
Address: South Humber Bank Power Station, South Marsh Road,
Stallingborough N.E. Lincs. DN37 8BZ
Facsimile no: 01469 573030
Attention: P. Evans
By:
Independent Energy UK Limited
Address: St John's Court, 70 St John's Close, Knowle, Solihull, West Midlands
B93 ONN
Facsimile no: 01564 770010
Attention: J. Sulley
By:
Indian Queens Power Limited
Address: The Old Chapel Business Centre, Suite 7, Greenbottom, Truro TR4 8QP
Facsimile no: 01872 561050
Attention: M. Miller
By:
Keadby Generation Limited
Address: c/o Scottish Hydro Electric, Inveralmond House, 200 Dunkeld Road,
Perth PH1 3AQ
Facsimile no: 01738 456227
Attention: I. Morgan
By:
Lakeland Power Limited
Address: Roosecote Power Station, Roosecote Marsh, Barrow-in-Furness, Cumbria
LA13
0PQ
Facsimile no: 01229 870919
Attention: Jackie Mahon
By:
Magnox Electric plc
Address: Berkeley Centre, Berkeley, Gloucestershire GL13 9PB
Facsimile no: 01453 810451
Attention: Company Secretary
By:
Medway Power Limited
Address: Medway Power Station, Isle of Grain, Rochester, Kent ME3 0AG
Facsimile no: 01634 271666
Attention: J. McLaren
By:
Midlands Power (UK) Limited
Address: Headquarters, Mucklow Hill, Halesowen, West Midlands
Facsimile no: 0121 423 0261
Attention: Company Secretary
By:
National Power plc
Address: Windmill Hill Business Park, Whitehill Way, Swindon, Wiltshire
SN5 6PB
Facsimile no: 01793 892061
Attention: M. Bowden
By:
Nuclear Electric Limited
Address: Barnett Way, Barnwood, Gloucester GL4 3RS
Facsimile no: 01452 653375
Attention: Company Secretary
By:
Peterborough Power Limited
Address: Storeys Bar Road, Peterborough PE1 5NT
Facsimile no: 01553 667166
Attention: W. Burrough
By:
PowerGen plc
Address: Westwood Way, Westwood Business Park, Coventry CV4 8LG
Facsimile no: 01203 425366
Attention: S. Skillings
By:
Regional Power Generators Limited
Address: Glanford Brigg Generating Station, Scawby Brook, Brigg, North
Lincolnshire DN20 9LT
Facsimile no: 01482 495916
Attention: P. Knight
By:
Rocksavage Power Company Limited
Address: Cow Hay Lane, Runcorn, Cheshire WA7 4FZ
Facsimile no: 01928 565514
Attention: B. Stewart
By:
Scottish Hydro-Electric plc
Address: Inveralmond House, 200 Dunkeld Road, Perth PH1 3AQ
Facsimile no: 01738 456190
Attention: R. Hackland
By:
Scottish Power plc
Address: Strathkelvin House, Kirkintilloch, Glasgow G66 1RN
Facsimile no: 0141 636 4706
Attention: B.J.H. Paget
By:
Seabank Power Limited
Address: Severn Road, Hallen, Bristol BS10 7SP
Facsimile no: 0117 982 0351
Attention: J.P. Baldry, General Manager
By:
Slough Energy Supplies Limited
Address: 342 Edinburgh Avenue, Slough SL1 4TU
Facsimile no: 01753 790038
Attention: P.N. Jackson
By:
Teesside Power Limited
Address: Four Millbank, London SW1P 3ET
Facsimile no: 0171 316 5322
Attention: D. Lewis
By:
Winterton Power Limited
Address: 800 Park Avenue, Aztec West, Bristol BS12 4SE
Facsimile no: 01454 616675
Attention: T. Masood
By:
THE SUPPLIERS
British Gas Trading Ltd
Address: 1st Floor, 31 The Causeway, Staines, Middlesex TW18 3BL
Facsimile no: 01784 413242
Attention: T. Brookshaw
By:
British Nuclear Fuels plc
Address: F13, Sellafield, Seascale, Cumbria CA20 1PG
Facsimile no: 019467 27132
Attention: P.L. O'Neill, Business Manager, Electricity Generation
By:
Candecca Resources Limited
Address: Welton Gathering Centre, Barfield Lane, off Wragby Road, Sudbrooke,
Lincoln LN2 2QU
Facsimile no: 01522 754255
Attention: D. Wood
By:
Citigen (London) Limited
Address: 47-53 Charterhouse Street, London EC1M 6HA
Facsimile no: 0171 253 9319
Attention: S.P. Chandler
By:
Crosfield Limited
Address: Bank Quay, PO Box 26, Warrington, Cheshire WA5 1AB
Facsimile no: 01925 59828
Attention: K. Sowley
By:
Eastern Electricity plc
Address: Wherstead Park, PO Box 40, Wherstead, Ipswich, Suffolk IP9 2AQ
Facsimile no: 01473 554393
Attention: J. Whelan
By:
East Midlands Electricity plc
Address: Phoenix Centre Nuthall, Nottingham NG8 6AT
Facsimile no: 0115 995 5953
Attention: A. Musto
By:
Electricite de France, Service National
Address: EDF Production Transport, Department Relations avec l'Etranger,
Echanges d'Energie, 2 Rue Louis Murat, 5eme etage, 75384, Paris,
Cedex 08
Facsimile no: (010 331) 40 42 6341
Attention: P. Gaillet
(copy to: Associated Electricity Supplies Limited
Address: 53 St. George's Road, Wimbledon, London SW19 4EA
Facsimile no: 0181 944 0750
Attention: P. Clubb)
By:
Electricity Direct (UK) Limited
Address: 1 Livingstone Road, Hove, East Sussex BN3 3WP
Facsimile no: 01273 233002/3
Attention: Glenn Mackay
By:
Energy Supply Contracts Limited
Address: The Havens, Ransomes Europark, Ipswich, Suffolk IP3 9SJ
Facsimile no: 01473 273871
Attention: E.C. Cumberland
By:
Enron Gas and Petrochemicals Trading Limited
Address: Four Millbank, London SW1P 3ET
Facsimile no: 0171 873 0140
Attention: D. Gosling
By:
Impkemix Energy Limited
Address: PO Box 90, Wilton Centre, Middlesborough, Cleveland TS90 8JE
Facsimile no: 01642 437838
Attention: K.J. Green
By:
Independent Energy UK Limited
Address: St. John's Court, St. John's Close, Knowle, West Midlands B93 0NN
Facsimile no: 01564 770010
Attention: J. Sulley
By:
London Electricity plc
Address: Templar House, 81-87 High Holborn, London WC1V 6NU
Facsimile no: 0171 430 2903
Attention: M. Holmes
By:
Magnox Electric plc
Address: Berkeley Centre, Berkeley, Gloucestershire GL13 9PB
Facsimile no: 01453 810451
Attention: Company Secretary
By:
Manweb plc
Address: Manweb House, Kingsfield Court, Chester Business Park,
Chester CH4 9QH
Facsimile no: 0141 568 3393
Attention: P. Brown, Energy Supply, Cathcart Business Park, Spean
Street, Glasgow
G44 4BE
By:
Midlands Electricity plc
Address: Mucklow Hill, Halesowen, West Midlands B62 8BP
Facsimile no: 0121 423 2777
Attention: R. Murray
By:
National Power plc
Address: Windmill Hill Business Park, Whitehill Way, Swindon, Wiltshire SN5 6PB
Facsimile no: 01793 892061
Attention: M. Bowden
By:
Norsk Hydro (UK) Limited
Address: Bridge House, 69 London Road, Twickenham, Middlesex TW1 3RH
Facsimile no: 0181 892 1686
Attention: M. Turner
By:
Northern Electric plc
Address: Carliol House, Market Street, Newcastle upon Tyne NE1 6NE
Facsimile no: 0191 210 2295
Attention: M. Chandler
By:
NORWEB plc
Address: Talbot Road, Manchester M16 0HQ
Facsimile no: 0161 875 7089
Attention: K. Lee
By:
Nuclear Electric Limited
Address: Barnett Way, Barnwood, Gloucester GL4 3RS
Facsimile no: 01452 653375
Attention: Company Secretary
By:
PowerGen plc
Address: Westwood Way, Westwood Business Park, Coventry CV4 8LG
Facsimile no: 01203 425366
Attention: S. Skillings
By:
Scottish Hydro-Electric plc
Address: Inveralmond House, 200 Dunkeld Road, Perth PH1 3AQ
Facsimile no: 01738 456190
Attention: R. Hackland
By:
Scottish Power plc
Address: Strathkelvin House, Kirkintilloch, Glasgow G66 1RN
Facsimile no: 0141 636 4706
Attention: B.J.H. Paget
By:
SEEBOARD plc
Address: PO Box 639, 329 Portland Road, Hove, East Sussex BN3 3SY
Facsimile no: 01273 428404
Attention: R.A. Page
By:
Shell Power Limited
Address: Delta House, Wavell Road, Wythenshawe, Manchester M22 5SB
Facsimile no: 0161 499 8387
Attention: John Tucker
By:
Slough Energy Supplies Limited
Address: 342 Edinburgh Avenue, Slough SL1 4TU
Facsimile no: 01753 790038
Attention: P.N. Jackson
By:
Southern Electric plc
Address: Westacott Way, Littlewick Green, Maidenhead, Berkshire SL6 3QB
Facsimile no: 01628 584469
Attention: J. Sykes
By:
South Wales Electricity plc
Address: Newport Road, St. Mellons, Cardiff CF3 9XW
Facsimile no: 01222 790971
Attention: M. Mackey
By:
South Western Electricity plc
Address: 800 Park Avenue, Aztec West, Almondsbury, Bristol BS12 4SE
Facsimile no: 01454 616675
Attention: D.G. Harris
By:
The Renewable Energy Company Limited
Address: Stroud House, Russell Street, Stroud, Glos GL5 3AN
Facsimile no: 01453 756222
Attention: M. Alder
By:
UK Electric Power Limited
Address: Overdale, Synchant Pass Road, Conwy, Gwynedd LL32 8RE
Facsimile no: 01492 592077
Attention: N.Bryson
By:
UML Limited
Address: PO Box 115, Port Sunlight, Wirral, Merseyside L62 4ZL
Facsimile no: 0151 643 6299
Attention: A.R. Stubbs
By:
Yorkshire Electricity Group plc
Address: Wetherby Road, Scarcroft, Leeds LS14 3HS
Facsimile no: 01132 895926
Attention: Company Secretary
By:
THE OTHER PARTIES
Accord Energy Ltd
Address: Charter Court, 50 Windsor Road, Slough, Berkshire SL1 2HA
Facsimile no: 01753 758010
Attention: E.F. Pethybridge
By:
AES Partington Limited
Address: Burleigh House, 17-19 Worple Way, Richmond, Surrey TW10 6AG
Facsimile no: 0181 332 1849
Attention: Michael Armstrong
By:
Alcan Aluminium UK Limited
Address: Lynemouth Power Station, Ashington, Northumberland NE63 9YH
Facsimile no: 01670 393970
Attention: W.E. Jones
By:
BG plc
Address: 100 Thames Valley Park, Reading, Berkshire, RG6 1PT
Facsimile no: 0118 929 3651
Attention: C. Alexander
By:
BP Chemicals Limited
Address: Baglan Bay Works, Port Talbot, West Glamorgan SA12 7BP
Facsimile no: 01639 823 272
Attention: Mr. W.G. James
By:
Cabah Energy Limited
Address: c/o ABB ForStar Developments Limited, Tilford House, Farnham Business
Park, Weydon Lane, Farnham,
Surrey GU9 8QT
Facsimile no: 01252 732110
Attention: Paul Abbott
By:
Cottam Development Centre Limited
Address: c/o PowerGen plc, Westwood Way, Westwood Business Park, Coventry
CV4 8LG
Facsimile no: 01203 425 484
Attention: Mr. P. Stanton
By:
Enfield Energy Centre Limited
Address: Cam Lea Offices, Mollison Avenue, Enfield EN3 7NN
Facsimile no: 01642 678123
Attention: K. Clarke
By:
Hydro Electric Energy Limited
Address: c/o Scottish Hydro Electric PLC, Inveralmond House, 200 Dunkeld Road,
Perth PH1 3AQ
Facsimile no: 01738 455281
Attention: Company Secretary
By:
Keadby Power Limited
Address: P.O. Box 89, Keadby, Scunthorpe, North Lincolnshire DN17 3AZ
Facsimile no: 01724 784270
Attention: Dr. C.K. Stanley
By:
Kingsnorth Power Limited
Address: c/o Budd Martin & Co, Industria House, Red Houses, St. Brelade, Jersey
JE3 8LD
Facsimile no: 01534 44777
Attention: R. Martin
By:
Meter Operators Limited
Address: Ryden Lane, Charton, Nr. Pershore, Worscester WR10 3LQ
Facsimile no: 01386 861113
Attention: R. Edmed
By:
Pentex (East Midlands) Limited
Address: Union Buildings, 15 Union Street, Aberdeen AB1 2BU
Facsimile no: 01244 211444
Attention: H. Jamieson
By:
Saltend Cogeneration Company Limited
Address: Britannic House, 1 Finsbury Circus, London EC2M 7BA
Facsimile no: 0171 496 5863
Attention: Mr. M. Stageman
By:
Spalding Energy Company Limited
Address: 20 St. James's Street, London SW1A 1ES
Facsimile no: 0171 839 0905
Attention: G. Grant
By:
THE METER OPERATOR PARTIES WHO ARE NOT PARTIES
Control Devices and Systems Limited
Address: P.O. Box 56, 101 Mill Lane, Newbury, Berkshire RG14 5RE
Telex no: 849811
Facsimile no: 01635 528224
Attention: J.W. Dowse
By:
Datum Solutions Limited
Address: Littlebrook Business Centre, Littlebrook Manor Way, Dartford, Kent DA1
5PS
Facsimile no: 01322 295178
Attention: G. Babbs
By:
DrakMarn O&M Ltd
Address: Westwood Way, Westwood Business Park, Coventry CV4 8LG
Facsimile no: 01203 425431
Contact: Company Secretary
By:
E. Squared Limited
Address: 52-54 Southwark Street, London SE1 1UN
Facsimile no: 0171 378 0012
Attention: Graham Nicholls
By:
Northern Energy Services Limited
Address: 208 Askern Road, Bentley, Doncaster DN5 OEU
Facsimile no: 01302 820790
Attention: W. Tuczemzkyi
By:
PowerMet Limited
Address: 13 Wimpole Street, London W1M 7AB
Facsimile no: 0171 493 7151
Attention: M. Rugman
By:
Schlumberger Industries Limited
Address: Langer Road, Felixstowe, Suffolk IP11 8ER
Facsimile no: 01394 276030
Attention: M. Jones, Marketing Manager
By:
Stanor National Contracts
Address: 71A Mafeking Avenue, Brentford, Middlesex TW8 0NL
Facsimile no: 0181 560 4651
Attention: A. Yardley
By:
The Challenge Group
Address: 22 Tally Road, Oxted, Surrey RH8 0TG
Facsimile no: 01883 730543
Attention: J. Glover
By:
EXTERNAL POOL MEMBERS
British Nuclear Fuels plc
Address: F13, Sellafield, Seascale, Cumbria CA20 1PG
Facsimile no: 019467 27132
Attention: P.L. O'Neil, Business Manager, Electricity Generation
By:
Electricite de France, Service National
Address: EDF Production Transport, Departement Relations avec l'Etranger,
Echanges d'Energie, 2 Rue Louis Murat, 5eme etage, 75384
Paris,
Cedex 08
Telex no: 280098 FRANCE
Facsimile no: (00 331) 40 42 63 41
Attention: P. Gaillet
(copy to: Associated Electricity Supplies Limited
Address: 53 St. George's Road, Wimbledon, London SW19 4EA
Facsimile no: 0181 944 0750
Attention: P. Clubb)
By:
Scottish Hydro-Electric plc
Address: Inveralmond House, 200 Dunkeld Road, Perth PH1 3AQ
Facsimile no: 01738 456190
Attention: R. Hackland
By:
Scottish Power plc
Address: Strathkelvin House, Kirkintilloch, Glasgow G66 1RN
Facsimile no: 0141 636 4706
Attention: B.J.H. Paget
By:
SETTLEMENT SYSTEM ADMINISTRATOR
Energy Settlements and Information Services Limited
Address: Fairham House, Green Lane, Clifton, Nottingham NG11 9LN
Facsimile no: 0115 945 6728
Attention: G.K. James, General Manager
By:
POOL FUNDS ADMINISTRATOR
Energy Pool Funds Administration Limited
Address: 3rd Floor, 185 Park Street, London SE1 9DY
Facsimile no: 01203 423558
Attention: A. Marks, Director (National Grid House, 2nd Floor,
Kirby Corner Road,
Coventry CV4 8JY)
By:
GRID OPERATOR
EXECUTED AS A DEED by )
The National Grid )
Company plc by the )
affixing of its )
common seal in the )
presence of:- )
MEMBER OF BOARD SEALING COMMITTEE
Authorised Signatory
Address: National Grid House, Kirby Corner Road, Coventry CV4 8JY
Telex no: -
Facsimile no: 01203 423577
Attention: Company Secretary (copy to:J. Irgin, c/o M.J. Metcalfe,
The National Grid Company plc, National Grid House, Kirb
Corner
Road, Coventry CV4 8JY
ANCILLARY SERVICES PROVIDER
EXECUTED AS A DEED by )
The National Grid )
Company plc by the )
affixing of its )
common seal in the )
presence of:- )
MEMBER OF BOARD SEALING COMMITTEE
Authorised Signatory
Address: National Grid House, Kirby Corner Road, Coventry CV4 8JY
Facsimile no: 01203 423577
Attention: Company Secretary (copy to Mr. Carlton)
EXTERNALLY INTERCONNECTED PARTIES
Scottish Power plc
Address: Strathkelvin House, Kirkintilloch, Glasgow G66 1RN
Telex No: -
Facsimile No: 0141 636 4706
Attention: B.J.H. Paget
By:
Electricite de France, Service National
Address: EDF Department Transport, Departement Relations avec l'Etranger,
Echanges d'Energie, 2 Rue Louis
Murat, 5eme etage, 75384 Paris, Cedex 08
Telex no: 280098 FRANCE
Facsimile no: (00 331) 40 42 63 41
Attention: P. Gaillet
(copy to: Associated Electricity Supplies Limited
Address: 53 St. George's Road, Wimbledon, London SW19 4EA
Telex no: -
Facsimile no: 0181 944 0750
Attention: P. Clubb)
By:
DATED , 1998
THE GENERATORS
named herein
- and -
THE SUPPLIERS
named herein
- and -
ENERGY SETTLEMENTS AND INFORMATION SERVICES LIMITED
as Settlement System Administrator
- and -
ENERGY POOL FUNDS
ADMINISTRATION LIMITED
as Pool Funds Administrator
- and -
THE NATIONAL GRID COMPANY plc
as Grid Operator and Ancillary Services Provider
- and -
SCOTTISH POWER plc
and
ELECTRICITE DE FRANCE, SERVICE NATIONAL
as Externally
Interconnected Parties
- and -
THE OTHER PARTIES
named herein
- and -
THE METER OPERATOR PARTIES
named herein
---------------------------------------
TWENTY-FIRST SUPPLEMENTAL DEED
relating to the Pooling and Settlement Agreement
for the Electricity Industry
in England and Wales
---------------------------------------
253
CONTENTS
Page
1. INTERPRETATION 2
2. AMENDMENTS 2
3. CONTINUATION OF THE POOLING AND SETTLEMENT AGREEMENT 2
4. MISCELLANEOUS 2
5. ENTIRE AGREEMENT 2
6. GOVERNING LAW 3
SCHEDULE 1: Part I: The Generators 4
Part II: The Suppliers 8
SCHEDULE 2: The Other Parties 13
SCHEDULE 3: The Meter Operator Parties who are not Parties 15
SCHEDULE 4: Amendments to the Pooling and Settlement Agreement 16
SIGNATORIES 31