SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
Amendment No. 1
Annual Report Pursuant to Section 13 or 15 (d) of
the Securities Exchange Act of 1934
For the fiscal year ended December 31, 1996
Commission File No. 1-9874
CALENERGY COMPANY, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-2213782
(State or other (I.R.S. Employer
jurisdiction or organization) Identification No.)
or organization)
302 South 36th Street, Suite 400, Omaha, NE 68131
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (402) 341-4500
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of exchange
Common Stock, $0.0675 on which registered
par value ("Common Stock") New York Stock
Exchange
Pacific Stock Exchange
London Stock Exchange
Securities registered pursuant to Section 12(g) of the Act: N/A
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days:
Yes X No______
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ X ]
Based on the closing sales price of Common Stock on the New York Stock
Exchange on March 17, 1997, the aggregate market value of the Common Stock held
by non-affiliates of the Company was $2,223,535,825.
63,529,595 shares of Common Stock were outstanding on March 17, 1997.
Documents incorporated by reference: N/A
DOCUMENTS INCORPORATED BY REFERENCE
Incorporated by reference into this Form 10-K, in response to Item 3, Part I,
Items 6 through 8 of Part II, and Items 10 through 13 of Part III, are the
portions indicated herein of (i) the annual report of CalEnergy Company, Inc.
(the "Company") to security holders for the fiscal year ended December 31,
1996 (the "Annual Report"), and (ii) the Company's proxy statement dated April
4, 1997 for the annual meeting of stockholders to be held on May 15, 1997 (the
"Proxy Statement").
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized, in the City of Omaha,
State of Nebraska, on this 30th day of April, 1997.
CALENERGY COMPANY, INC.
/s/ David L. Sokol*
By David L. Sokol
President and Chief Executive
Officer
By: /s/ Steven A. McArthur
Steven A. McArthur
Attorney-in-Fact
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Signature
Date
/s/ David L. Sokol* April 30, 1997
David L. Sokol
Chairman of the Board,
Chief Executive Officer, and
Director
/s/ John G. Sylvia
April 30, 1997
John G. Sylvia,
Senior Vice President,
Chief Financial Officer, and
Treasurer
/s/ Edgar D. Aronson* April 30,
1997
Edgar D. Aronson
Director
/s/ Judith E. Ayres* April 30, 1997
Judith E. Ayres
Director
/s/ James Q. Crowe* April 30, 1997
James Q. Crowe
Director
*By:/s/ Steven A. McArthur
April 30, 1997
Steven A. McArthur
Attorney-in-Fac
/s/ Richard K. Davidson* April 30, 1997
Richard K. Davidson
Director
/s/ David H. Dewhurst* April 30, 1997
David H. Dewhurst
Director
/s/ Richard R. Jaros* April 30,
1997
Richard R. Jaros
Director
/s/ Ben Holt* April 30, 1997
Ben Holt
Director
/s/ David R. Morris* April 30, 1997
David Morris
Director
/s/ John R. Shiner* April 30, 1997
John R. Shiner
Director
/s/ Bernard W. Reznicek* April 30, 1997
Bernard W. Reznicek
Director
/s/ Walter Scott, Jr.* April 30,
1997
Walter Scott, Jr.
Director
/s/ David E. Wit* April 30, 1997
David E. Wit
Director
*By:/s/ Steven A. McArthur April
30, 1997
Steven A. McArthur
Attorney-in-Fact
The undersigned registrant hereby amends and supplements Item 14 of its
Annual Report on Form 10-K for the fiscal year ended December 31, 1996, by
filing herewith an amended and restated Exhibit Index which shall read as
follows and by filing herewith the following Exhibits noted by an asterisk
(*):
EXHIBIT INDEX
3.1 The Company's Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 of the Company's Form 10-K for the year ended
December 31, 1992, File No. 1-9874 (the "1992 Form 10-K")).
3.2 Certificate of Amendment of the Company's Restated Certificate of
Incorporation, dated June 23, 1993 (incorporated by reference to the
Company's Form 8-A, dated July 28, 1993, File No. 1-9874 ("Form 8-A")).
3.3 Certificate of Amendment of the Company's Restated Certificate of
Incorporation dated, February 23, 1995 (incorporated by reference to
Exhibit 3.3 to the Company's Form 10-K/A Amendment (dated March 31, 1995)
to the Company's Form 10-K for the year ended December 31, 1994, File No.
1-9874 (the "1994 Form 10-K")).
3.4 Certificate of Ownership and Merger, effective March 26, 1996.
(incorporated by reference to Exhibit 3.4 of the Company's Form 10-K for
the year ended December 31, 1995, File No. 1-9874 (the 1995 Form 10-K")).
3.5 The Company's Certificate of Designation with respect to the Company's
Series C Redeemable Convertible Exchangeable Preferred Stock, dated
November 20, 1991, including a form of the 9.5% Convertible Subordinated
Debentures due 2003 (incorporated by reference to Exhibit 3.1 of the
Company's 1992 Form 10-K).
3.6 The Company's By-Laws as amended through February 21, 1997.
4.1 Specimen copy of form of Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to the Company's Form 10-K for the year ended
December 31, 1993, File No. 1-9874 (the "1993 Form 10-K")).
4.2 Shareholders Rights Agreement between the Company and Manufacturers
Hanover Trust Company of California dated December 1, 1988 (incorporated
by reference to Exhibit 1 to Company's Form 8-K dated December 5, 1988,
File No. 1-9874).
4.3 Amendment Number 1 to Shareholder Rights Agreement, dated February 15,
1991 (incorporated by reference to Exhibit 4.2 to the Company's 1992 Form
10-K).
4.4 Escrow Deposit Agreement between Bank of American National Trust and
Savings Association and the Company dated March 3, 1994 (incorporated by
reference to Exhibit 4.7 to the Company's 1993 Form 10-K).
10.1 Joint Venture Agreement for China Lake Joint Venture between the Company
and Caithness Geothermal 1980 Ltd., restated as of January 1, 1984
(incorporated by reference to Exhibit 10.1 to the Company's Registration
Statement on Form S-1, 33-7770).
10.2 Amended Joint Venture Agreement for Coso Land Company between the Company
and Caithness Geothermal 1980 Ltd., dated as of June 1, 1983
(incorporated by reference to Exhibit 10.3 to the Company's Registration
Statement on Form S-1, 33-7770).
10.3 Amended General Partnership Agreement for Coso Finance Partners between
China Lake Operating Company and ESCA I L.P. dated July 13, 1988
(incorporated by reference to Exhibit 10.3 to the Company's 1992 Form 10-
K).
10.4 First Supplemental Amendment to the Amended and Restated General
Partnership Agreement for Coso Finance Partners between China Lake
Operating Company and ESCA L.P. (Undated) (incorporated by reference to
Exhibit 10.4 to the Company's 1992 Form 10-K).
10.5 Second Supplemental Amendment to the Amended and Restated General
Partnership Agreement for Coso Finance Partners between China Lake
Operating Company and ESCA L.P. dated as of July 13, 1988 (incorporated
by reference to Exhibit 10.5 to the Company's 1992 Form 10-K).
10.6 Third Supplemental Amendment to the Amended and Restated General
Partnership Agreement for Coso Finance Partners between China Lake
Operating Company and ESCA L.P. dated as of December 16, 1992
(incorporated by reference to Exhibit 10.6 to the Company's 1992 Form 10-
K).
10.7 General Partnership Agreement for Coso Finance Partners II between China
Lake Geothermal Management Company and ESCA II L.P. dated July 7, 1987
(incorporated by reference to Exhibit 10.7 to the Company's 1992 Form 10-
K).
10.8 Restated General Partnership Agreement for Coso Energy Developers between
Coso Hotsprings Intermountain Power Inc. and Caithness Coso Holdings L.P.
dated as of March 31, 1988 (incorporated by reference to Exhibit 10.8 to
the Company's 1992 Form 10-K).
10.9 First Amendment to the Restated General Partnership Agreement for Coso
Energy Developers between Coso Hotsprings Intermountain Power, Inc. and
Caithness Coso Holdings, L.P. dated as of March 31, 1988 (incorporated by
reference to Exhibit 10.9 to the Company's 1992 Form 10-K).
10.10 Second Amendment to the Restated General Partnership Agreement for Coso
Energy Developers between Coso Hotsprings Intermountain Power, Inc. and
Caithness Coso Holdings L.P. dated as of December 16, 1992 (incorporated
by reference to Exhibit 10.10 to the Company's 1992 Form 10-K).
10.11 Amended and Restated General Partnership Agreement for Coso Power
Developers between Coso Technology Corporation and Caithness Navy II
Group L.P. dated July 31, 1989 (incorporated by reference to Exhibit
10.11 to the Company's 1992 Form 10-K).
10.12 First Amendment to the Amended and Restated General Partnership for Coso
Power Developers between Coso Technology Corporation and Caithness Navy
II Group L.P. dated as of March 19, 1991 (incorporated by reference to
Exhibit 10.12 to the Company's 1992 Form 10-K).
10.13 Second Amendment to the Amended and Restated General Partnership
Agreement for Coso Power Developers between Coso Technology Corporation
and Caithness Navy II Group L.P. dated as of December 16, 1992
(incorporated by reference to Exhibit 10.13 to the Company's 1992 Form
10-K).
10.14 Form of Amended and Restated Field Operation and Maintenance Agreement
between Coso Joint Ventures and the Company dated as of December 16, 1992
(incorporated by reference to Exhibit 10.14 of the Company's 1992 Form
10-K).
10.15 Form of Amended and Restated Project Operation and Maintenance Agreement
between Coso Joint Venture and the Company dated as of December 16, 1992
(incorporated by reference to Exhibit 10.15 to the Company's 1992 Form
10-K).
10.16 Trust Indenture between Coso Funding Corp. and Bank of America National
Trust and Savings Association dated as of December 16 1992 (incorporated
by reference to Exhibit 10.16 to the Company's 1992 Form 10-K).
10.17 Form of Amended and Restated Credit Agreement between Coso Funding Corp.
and Coso Joint Ventures dated as of December 16, 1992 (incorporated by
reference to Exhibit 10.17 to the Company's 1992 Form 10-K).
10.18 Form of Support Loan Agreement among Coso Joint Ventures dated December
16, 1992 (incorporated by reference to Exhibit 10.18 to the Company's
1992 Form 10-K).
10.19 Form of Project Loan Pledge Agreement between Coso Joint Ventures and
Bank of America National Trust and Savings dated as of December 16, 1992
(incorporated by reference to Exhibit 10.19 to the Company's 1992 Form
10-K).
10.20 Power Purchase Contracts between Southern California Edison Company and:
(a) China Lake Joint Venture, executed June 4, 1984 with a term of 24
years;
(b) China Lake Joint Venture, executed February 1, 1985 with a term of
23 years; and
(c) Coso Geothermal Company, executed February 1, 1985 with a term of
30 years (incorporated by reference to Exhibit 10.7 to the
Company's Registration Statement on Form S-1, 33-7770).
10.21 Contract No. N62474-79-C-5382 between the United States of America and
China Lake Joint Venture, restated October 19, 1983 as "Modification
P00004," including modifications through "Modification P00026", dated
December 16, 1992 (the "Navy Contract")(incorporated by reference to
Exhibit 10.21 to the Company's 1992 Form 10-K).
10.22 Modification to Contract No. P00028, dated June 28, 1993, Modification to
Contract No. P00029, dated October 4, 1994 and Modification to Contract
No. P00031, dated December 19, 1994 all amending the Navy Contract
"(incorporated by reference to Exhibit 10.22 to the Company's 1994 Form
10-K)."
10.23 Lease between the BLM and Coso Land Company, effective November 1, 1985
(with Designation of Geothermal Operator) (incorporated by reference to
Exhibit 10.8 to the Company's Registration Statement on Form S-1, 33-
7770).
10.24 Stock Purchase Agreement between the Company and Kiewit Energy Company
dated as of February 18, 1991, as amended as of June 19, 1991
(incorporated by reference to Exhibit 1 to the Company's Form 8-K dated
February 26, 1991).
10.25 Amendment No. 2 to Stock Purchase Agreement between Kiewit Energy Company
and the Company dated as of January 8, 1992 (incorporated by reference to
Exhibit 10.24 to the Company's 1992 Form 10-K).
10.26 Amendment No. 3 to Stock Purchase Agreement between Kiewit Energy Company
and the Company dated as of April 2, 1993 (incorporated by reference to
Exhibit 10.25 to the Company's 1993 Form 10-K).
10.27 Shareholders Agreement between the Company and Kiewit Energy Company
dated as of February 18, 1991, as amended as of June 19, 1991 and as of
November 20, 1991 (incorporated by reference to Exhibit 1 to the
Company's Form 8-K dated February 26, 1991, Exhibit 1 to the Company's
Form 8-K dated July 18, 1992, and Exhibit 3 to the Company's Form 8-K
dated November 23, 1991).
10.28 Amendment No. 3 to Shareholder's Agreement between the Company and Kiewit
Energy Company dated as of April 2, 1993 (incorporated by reference to
Exhibit 14 to the Company's Form 8-A).
10.29 Amendment No. 4 to Shareholder's Agreement between the Company and Kiewit
Energy Company dated as of July 20, 1993 (incorporated by reference to
Exhibit 10.28 to the Company's 1993 Form 10-K).
10.30 Registration Rights Agreement between the Company and Kiewit Energy
Company dated as of February 18, 1991, as amended as of June 19, 1991
(incorporated by reference to Exhibit 1 to the Company's Form 8-K dated
February 26, 1991, and Exhibit 1 to the Company's Form 8-K dated July 18,
1992).
10.31 Registration Rights Agreement between the Company and Kiewit Energy
Company dated June 19, 1991, as amended November 20, 1991 (incorporated
by reference to Exhibit 1 of the Company's Form 8-K dated June 19, 1991
and Exhibit 4 to the Company's Form 8-K dated November 21, 1991).
10.32 Stock Option Agreement between the Company and Kiewit Energy Company
dated as of February 18, 1991, as amended as of June 19, 1991
(incorporated by reference to Exhibit 1 to the Company's Form 8-K dated
February 26, 1991, and Exhibit 1 to the Company's Form 8-K dated July 18,
1992).
10.33 Amendment No. 2 to Stock Option Agreement between the Company and Kiewit
Energy Company dated as of May 12, 1994 (incorporated by reference to
Exhibit 10.33 to the Company's 1995 Form 10-K).
10.34 Stock Option Agreement between the Company and Kiewit Energy Company
dated as of June 19, 1991 (incorporated by reference to Exhibit 1 to the
Company's Form 8-K dated July 18, 1991).
10.35 Securities Purchase Agreement between the Company and Kiewit Energy
Company dated as of November 20, 1991 (incorporated by reference to
Exhibit 2 to the Company's Form 8-K dated November 21, 1991).
10.36 1996 Employee Stock Option Plan, as amended (incorporated by reference to
Exhibit A to the Company's 1996 Proxy Statement).
10.37 1994 Employee Stock Purchase Plan (incorporated by reference to Exhibit A
to the Company's 1994 Proxy Statement).
10.38 Indenture between the Company and The Chemical Trust Company of
California dated as of June 24, 1993 (incorporated by reference to the
Company's Form 8-K dated June 24, 1993, File No. 1-9874).
10.39 Registration Rights Agreement among the Company, Lehman Brothers, Inc.
and Alex Brown & Sons Incorporated dated June 24, 1993 (incorporated by
reference to the Company's Form 8-K dated June 24, 1993, File No. 1-
9874).
10.40 Indenture dated March 24, 1994 between the Company and IBJ Schroder Bank
and Trust Company (incorporated by reference to Exhibit 3 to the
Company's Form 8-K dated March 28, 1994).
10.41 Amended and Restated Employment Agreement between the Company and David
L. Sokol dated as of August 21, 1995 (incorporated by reference to
Exhibit 10.82 to the Company's 1995 Form 10-K).
10.42 Restricted Stock Exchange Agreement between the Company and David L.
Sokol dated as of November 29, 1995 (incorporated by reference to Exhibit
10.43 to the Company's 1995 Form 10-K).
10.43 Amendment No. 1 to the Amended and Restated Employment Agreement between
the Company and David L. Sokol, dated August 28, 1996.
10.44 Employment Agreement between the Company and Gregory E. Abel, dated
August 6, 1996.
10.45 Employment Agreement between the Company and John G. Sylvia, dated August
6, 1996.
10.46 Employment Agreement between the Company and Steven A. McArthur, dated
August 6, 1996.
10.47 Standard Offer Number 2, Standard Offer for Power Purchase with a Firm
Capacity Qualifying Facility effective June 15, 1990 ("SO2") between San
Diego Gas & Electric Company and Bonneville Pacific Corporation
(incorporated by reference to Exhibit 10.42 to the Company's 1993 Form
10-K).
10.48 Amendment Number One to the SO2 dated September 25, 1990 (incorporated by
reference to Exhibit 10.43 to the Company's 1993 Form 10-K).
10.49 Joint Venture Agreement among the Company, Kiewit Diversified Group Inc.
and Kiewit Construction Group Inc. dated December 14, 1993 (incorporated
by reference to Exhibit 10.44 to the Company's 1993 Form 10-K).
10.50 Joint Venture Agreement between the Company and Kiewit Diversified Group
Inc., dated December 4, 1996.
10.51 Agreement and Plan of Merger between the Company, CE Acquisition Company,
Inc. and Magma dated December 5, 1994 (incorporated by reference to
(c)(3) to Exhibit 99.1 to the Company's Current Report on Form 8-K dated
December 9, 1994).
10.52 Stock Purchase Agreement between CalEnergy Imperial Valley Company, Inc.
and Edison Mission Energy, dated as of March 27, 1996 (incorporated by
reference to Exhibit 10.50 to the Company's 1995 Form 10-K).
10.53 Standard Offer No. 4 Power Purchase Agreement (Elmore), dated June 15,
1984, between Southern California Edison Company and Magma Electric
Company including Amendments No. 1 and No. 2 (incorporated by reference
to Exhibit 10.14 to Magma Power Company's Amendment No. 1 to Registration
Statement Form S-4 dated February 2, 1988, ("Magma 1988 Form S-4")).
10.54 Standard Offer No. 4 Power Purchase Agreement (Del Ranch) dated February
22, 1984, between Southern California Edison Company and Imperial Energy
Corporation, including Amendments No. 1 and No. 2 (incorporated by
reference to Exhibit 10.15 to the Magma 1988 Form S-4).
10.55 Standard Offer No. 4 Power Purchase Agreement (Vulcan), dated June 15,
1984, between Southern California Edison Company and Magma Electric
Company including Amendment No. 1 (incorporated by reference to Exhibit
10.16 to the Magma 1988 Form S-4).
10.56 Standard Offer No. 4 Power Purchase Agreement (River Ranch), dated April
16, 1985, between Southern California Edison Company and Imperial Energy
Corporation, including Amendment No. 1 (incorporated by reference to
Exhibit 10.20 to the Magma 1988 Form S-4).
10.57 Partnership Agreement dated August 30, 1985 between Vulcan Power Company
and BN Geothermal, Inc. (incorporated by reference to Exhibit 10.88 to
the Magma Power Company's Form 8 Amendment (dated December 18, 1990) to
Magma Power Company's Form 10-K for the year ended December 31, 1989
("Magma Form 8")).
10.58 Amended and Restated Limited Partnership Agreement of Del Ranch, Ltd., a
California Limited Partnership, dated March 14, 1988 by and among Red
Hill Geothermal, Inc. and Conejo Energy Company, as General Partners, and
Magma Power Company and Conejo Energy Company, as Original Limited
Partners (incorporated by reference to Exhibit 10.53 to the Magma Power
Company Annual Report on Form 10-K for the year ended December 31, 1987,
File No. 0-10533 ("1987 Magma Form 10-K")).
10.59 Limited Partnership Agreement of Leathers, L.P., dated August 15, 1988 by
and among Red Hill Geothermal, Inc. and San Felipe Energy Company, as
General Partners, and Magma Power Company and San Felipe Energy Company,
as Limited Partners (incorporated by reference to Exhibit 10.79 to the
Magma Power Company Annual Report on Form 10-K for the year ended
December 31, 1988, File No. 0-10533 ("1988 Magma Form 10-K")).
10.60 Amended and Restated Limited Partnership Agreement of Elmore, Ltd., a
California Limited Partnership, dated March 14, 1988 by and among Red
Hill Geothermal, Inc. and Niguel Energy Company, as General Partners, and
Magma Power Company and Niguel Energy Company, as Original Limited
Partners (incorporated by reference to Exhibit 10.55 to the 1987 Magma
Form 10-K).
10.61 Operating and Maintenance Agreement dated March 14, 1988 by and between
Red Hill Geothermal, Inc. and Del Ranch, Ltd., a California Limited
Partnership (incorporated by reference to Exhibit 10.56 to the 1987 Magma
Form 10-K).
10.62 First Amendment to Operating and Maintenance Agreement dated as of April
14, 1989 between Red Hill Geothermal, Inc. and Del Ranch L.P. and the
Second Amendment to the Operating and Maintenance Agreement dated April
18, 1990 "(incorporated by reference to Exhibit 10.60 to the Company's
Form 10-K/A Amendment (dated March 31, 1995) to the Company's 1994 Form
10-K)."
10.63 Operating and Maintenance Agreement dated August 15, 1988 by and between
Red Hill Geothermal, Inc. and Leathers, L.P. (incorporated by reference
to Exhibit 10.84 to the 1988 Magma Form 10-K).
10.64 First Amendment to Operating and Maintenance Agreement dated as of April
14, 1989 between Red Hill Geothermal, Inc. and Leathers, L.P. and the
Second Amendment to the Operating and Maintenance Agreement dated April
18, 1990 "(incorporated by reference to Exhibit 10.62 to the Company's
1994 Form 10-K)."
10.65 Operating and Maintenance Agreement dated March 14, 1988 by and between
Red Hill Geothermal, Inc. and Elmore, Ltd., a California Limited
Partnership (incorporated by reference to Exhibit 10.57 to the 1987 Magma
Form 10-K).
10.66 First Amendment to the Operating and Maintenance Agreement dated as of
April 14, 1988 between Red Hill Geothermal, Inc. and Elmore, Ltd., a
California Limited Partnership and the Second Amendment to the Operating
and Maintenance Agreement dated April 18, 1990 "(incorporated by
reference to Exhibit 10.64 to the Company's 1994 Form 10-K)."
10.67 Brine Sales Agreement dated August 30, 1985 between Vulcan Power Company
and Vulcan/BN Geothermal Power Company (incorporated by reference to
Exhibit 10.90 to the Magma Power Company Form 8 Amendment (dated December
18, 1990) to the Magma Power Company Form 10-K for the year ended
December 31, 1989).
10.68 Easement Grant Deed and Agreement Regarding Rights for Geothermal
Development dated March 14, 1988 by and between Magma Power Company and
Del Ranch, Ltd., a California Limited Partnership (incorporated by
reference to Exhibit 10.58 to the 1987 Magma Form 10-K).
10.69 Easement Grant Deed and Agreement Regarding Rights for Geothermal
Development dated August 15, 1988 by and between Magma Power Company and
Leathers, L.P. (incorporated by reference to the 1988 Magma Form 10-K).
10.70 Easement Grant Deed and Agreement Regarding Rights for Geothermal
Development dated March 14, 1988 by and between Magma Power Company and
Elmore, Ltd., a California Limited Partnership (incorporated by reference
to Exhibit 10.59 to the 1987 Magma Form 10-K).
10.71 Administrative Services Agreement dated March 14, 1988 by and between Red
Hill Geothermal, Inc. and Del Ranch, Ltd., a California Limited
Partnership (incorporated by reference to the 1987 Magma Form 10-K).
10.72 Administrative Services Agreement dated August 15, 1988 by and between
Red Hill Geothermal, Inc. and Leathers, L.P. (incorporated by reference
to Exhibit 10.82 to the 1988 Magma Form 10-K).
10.73 Administrative Services Agreement dated March 14, 1988 by and between Red
Hill Geothermal Inc. and Elmore, Ltd., a California Limited Partnership
(incorporated by reference to Exhibit 10.63 to the 1987 Magma Form 10-K).
10.74 Amended and Restated Credit Agreement dated as of April 18, 1990 among
Del Ranch, Ltd. a California Limited Partnership, the Banks Listed
therein, and Morgan Guaranty Trust Company of New York, as Agent
(incorporated by reference to Exhibit 10.72 to the Company's 1994 Form
10-K).
10.75 LOC Debt Facility Agreement dated as of April 18, 1990 among Del Ranch,
Ltd., a California Limited Partnership, the Banks listed therein, Morgan
Guaranty Trust Company of New York as the Agent and Fuji Bank, Limited,
Los Angeles Agency, as Fronting Bank (incorporated by reference to
Exhibit 10.73 to the Company's 1994 Form 10-K).
10.76 Security Agreement dated March 14, 1988 among Del Ranch, Ltd., a
California Limited Partnership, Morgan Guaranty Trust Company of New
York, as Agent for and on behalf of the Banks, Morgan Guaranty Trust
Company of New York, and Morgan Guaranty Trust Company of New York, as
Security Agent (incorporated by reference to the 1987 Magma Form 10-K).
10.77 Amendment Number One to Security Agreement dated as of April 14, 1989,
and Amendment Number Two to the Security Agreement dated April 18, 1990
among Del Ranch, Ltd., a California Limited Partnership, Morgan Guaranty
Trust Company of New York, as Agent for and on behalf of the Banks,
Morgan Guaranty Trust Company of New York and Morgan Guaranty Trust
Company of New York as Security Agent (incorporated by reference to
Exhibit 10.75 to the Company's 1994 Form 10-K).
10.78 Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing
Construction Deed of Trust dated as of March 14, 1988 among Del Ranch,
Ltd., a California Limited Partnership, Ticor Title Insurance Company of
California, and Morgan Guaranty Trust Company of New York as Security
Agent (incorporated by reference to the 1987 Magma Form 10-K).
10.79 First Amendment to the Deed of Trust, dated April 18, 1990 between Del
Ranch, Ltd. and Morgan Guaranty Trust Company of New York (incorporated
by reference to Exhibit 10.77 to the Company's 1994 Form 10-K).
10.80 Amended and Restated Credit Agreement dated as of April 18, 1990 among
Elmore, Ltd., a California Limited Partnership, the Banks Listed therein,
and Morgan Guaranty Trust Company of New York, as Agent (incorporated by
reference to Exhibit 10.78 to the Company's 1994 Form 10-K).
10.81 LOC Debt Facility Agreement dated as of April 18, 1990 among Elmore,
Ltd., a California Limited Partnership, the Banks listed therein, Morgan
Guaranty Trust Company of New York as Agent and Fuji Bank, Limited, Los
Angeles Agency, as Fronting Bank (incorporated by reference to Exhibit
10.79 to the Company's 1994 Form 10-K).
10.82 Security Agreement dated March 14, 1988 among Elmore, Ltd., a California
Limited Partnership, Morgan Guaranty Trust Company of New York, as Agent
for and on behalf of the Banks, Morgan Guaranty Trust Company of New
York, and Morgan Guaranty Trust Company of New York, as Security Agent
(incorporated by reference to Exhibit 10.71 to the 1987 Magma Form 10-K).
10.83 Amendment Number One to Security Agreement dated as of April 14, 1989
among Elmore Ltd and Morgan Guaranty Trust Company of New York and
Amendment Number Two to Security Agreement dated April 18, 1990 among
Elmore, L.P., Morgan Guaranty Trust Company of New York, as Agent, on
behalf of the Banks (incorporated by reference to Exhibit 10.81 to the
Company's 1994 Form 10-K).
10.84 Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing
Construction Deed of Trust dated as of March 14, 1988 among Elmore, Ltd.,
a California Limited Partnership, Ticor Title
Insurance Company of California, and Morgan Guaranty Trust Company of New
York as Security Agent (incorporated by reference to Exhibit 10.73 to the
1987 Magma Form 10-K).
10.85 First Amendment to Deed of Trust dated April 18, 1990 between Elmore,
Ltd. and Morgan Guaranty Trust Company of New York, as Security Agent
(incorporated by reference to Exhibit 10.83 to the Company's 1994 Form
10-K).
10.86 Amended and Restated Credit Agreement dated April 18, 1990 among Leathers
L.P. and the Banks listed therein and Morgan Guaranty Trust Company of
New York as Agent (incorporated by reference to Exhibit 10.84 to the
Company's 1994 Form 10-K).
10.87 Security Agreement dated March 14, 1988 among Leathers L.P., a California
Limited Partnership, Morgan Guaranty Trust Company of New York, as Agent
for and on behalf of the Banks, Morgan Guaranty Trust Company of New
York, and Morgan Guaranty Trust Company of New York, as Security Agent,
Amendment Number One to Security Agreement dated as of April 14, 1989 and
Amendment Number Two to Security Agreement dated as of April 18, 1990
(incorporated by reference to Exhibit 10.85 to the Company's 1994 Form
10-K).
10.88 Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing
Construction Deed of Trust dated as of March 14, 1988 among Leathers,
L.P., a California Limited Partnership, Ticor Title Insurance Company of
California, and Morgan Guaranty Trust Company of New York as Security
Agent and First Amendment to Deed of Trust dated April 18, 1990
(incorporated by reference to Exhibit 10.85 to the Company's 1994 Form
10-K).
10.89 LOC Debt Facility Agreement dated as of April 18, 1990 among Leathers,
L.P., a California Limited Partnership, the Banks listed therein, Morgan
Guaranty Trust Company of New York as Agent and Fuji Bank, Limited, Los
Angeles Agency, as Fronting Bank (incorporated by reference to Exhibit
10.87 to the Company's 1994 Form 10-K).
10.90 Loan Agreement dated as of October 1, 1990 between California Pollution
Control Financing Authority and Desert Valley Company, relating to the
California Pollution Control Financing Authority Pollution Control
Revenue Bonds Small Business Series 1990-A (the "$4,000,000 Monofill Bond
Financing") (incorporated by reference to Exhibit 10.92 to the Magma
Power Company Form 10-K for the year ended December 31, 1990, File No. 0-
10533 (the "1990 Magma Form 10-K")).
10.91 Master Reimbursement Agreement dated as of October 1, 1990, by and among
the California Pollution Control Financing Authority, Desert Valley
Company and the Sanwa Bank, Limited, Los Angeles Branch, relating to the
$4,000,000 Monofill Bond Financing (incorporated by reference to Exhibit
10.93 to the 1990 Magma Form 10-K).
10.92 Sale and Purchase Agreement between Union Oil Company of California and
Magma Power Company effective as of December 31, 1992 (incorporated by
reference to Exhibit 10.97 to the Magma Power Company Form 8 dated June
2, 1993).
10.93 Contract for the Purchase and Sale of Electric Power (Unit I) from the
Salton Sea Geothermal Generating Facility between Southern California
Edison Company and Earth Energy, Inc., dated May 8, 1987, including
Amendment No. 1 to such contract, dated March 30, 1993 (incorporated by
reference to Exhibit 10.101 to the Magma Power Company Form 10-K for the
year ended December 31, 1993, File No. 0-10533, (the "1993 Magma Form 10-
K")).
10.94 Power Purchase Contract (Unit II) by and between Southern California
Edison Company and Westmoreland Geothermal Associates, dated April 16,
1985, including Amendment No. 1 to such contract, dated December 18, 1987
(incorporated by reference to Exhibit 10.102 to the 1993 Magma Form 10-
K).
10.95 Power Purchase Contract (Unit III) between Southern California Edison
Company and Union Oil Company Salton Sea III, dated April 16, 1985
(incorporated by reference to the 1993 Magma Form 10-K).
10.96 Consolidated, Amended and Restated Power Purchase Agreement (Unit IV)
between Southern California Edison Company and Fish Lake Power Company
and Salton Sea Power Generation, L.P. (incorporated by reference to
Exhibit 10.9 to the Registration Statement on Form S-4 dated August 9,
1995 of Salton Sea Funding Corporation 33-95538 (the "Funding Corporation
S-4").
10.97 125 MW Power Plant - Upper Mahiao Agreement (the "Upper Mahiao ECA")
dated September 6, 1993 between PNOC-Energy Development Corporation
("PNOC-EDC") and Ormat, Inc. as amended by the First Amendment to 125 MW
Power Plant Upper Mahiao Agreement dated as of January 28, 1994, the
Letter Agreement dated February 10, 1994, the Letter Agreement dated
February 18, 1994 and the Fourth Amendment to 125 MW Power Plant - Upper
Mahiao Agreement dated as of March 7, 1994 (incorporated by reference to
Exhibit 10.95 to the Company's 1994 Form 10-K).
10.98 Credit Agreement dated April 8, 1994 among CE Cebu Geothermal Power
Company, Inc., the Banks thereto, Credit Size as Agent (incorporated by
reference to Exhibit 10.96 to the Company's 1994 Form 10-K).
10.99 Credit Agreement dated as of April 8, 1994 between CE Cebu Geothermal
Power Company, Inc., Export-Import Bank of the United States
(incorporated by reference to Exhibit 10.97 to the Company's 1994 Form
10-K).
10.100 Pledge Agreement among CE Philippines Ltd, Ormat-Cebu Ltd., Credit
Suisse as Collateral Agent and CE Cebu Geothermal Power Company, Inc. dated as
of April 8, 1994 (incorporated by reference to Exhibit 10.98 to the
Company's 1994 Form 10-K).
10.101 Overseas Private Investment Corporation Contract of Insurance dated
April 8, 1994 between the Overseas Private Investment Corporation ("OPIC") and
the Company through its subsidiaries CE International Ltd., CE
Philippines Ltd., and Ormat-Cebu Ltd. (incorporated by reference to
Exhibit 10.99 to the Company's 1994 Form 10-K).
10.102 180 MW Power Plant - Mahanagdong Agreement ("Mahanagdong ECA") dated
September 18, 1993 between PNOC-EDC and CE Philippines Ltd. and the
Company, as amended by the First Amendment to Mahanagdong ECA dated June
22, 1994, the Letter Agreement dated July 12, 1994, the Letter Agreement
dated July 29, 1994, and the Fourth Amendment to Mahanagdong ECA dated
March 3, 1995 (incorporated by reference to Exhibit 10.100 to the
Company's 1994 Form 10-K).
10.103 Credit Agreement dated as of June 30, 1994 among CE Luzon Geothermal
Power Company, Inc., American Pacific Finance Company, the Lenders party
thereto, and Bank of America National Trust and Savings Association as
Administrative Agent (incorporated by reference to Exhibit 10.101 to the
Company's 1994 Form 10-K).
10.104 Credit Agreement dated as of June 30, 1994 between CE Luzon Geothermal
Power Company, Inc. and Export-Import Bank of the United States
(incorporated by reference to Exhibit 10.102 to the Company's 1994 Form
10-K).
10.105 Finance Agreement dated as of June 30, 1994 between CE Luzon Geothermal
Power Company, Inc. and Overseas Private Investment Corporation
(incorporated by reference to Exhibit 10.103 to the Company's 1994 Form
10-K).
10.106 Pledge Agreement dated as of June 30, 1994 among CE Mahanagdong Ltd.,
Kiewit Energy International (Bermuda) Ltd., Bank of America National
Trust and Savings Association as Collateral Agent and CE Luzon Geothermal
Power Company, Inc. (incorporated by reference to Exhibit 10.104 to the
Company's 1994 Form 10-K).
10.107 Overseas Private Investment Corporation Contract of Insurance dated July
29, 1994 between OPIC and the Company, CE International Ltd., CE
Mahanagdong Ltd. and American Pacific Finance Company and Amendment No. 1
dated August 3, 1994 (incorporated by reference to Exhibit 10.105 to the
Company's 1994 Form 10-K).
10.108 231 MW Power Plant - Malitbog Agreement ("Malitbog ECA") dated September
10, 1993 between PNOC-EDC and Magma Power Company and the First and
Second Amendments thereto dated December 8, 1993 and March 10, 1994,
respectively (incorporated by reference to Exhibit 10.106 to the
Company's 1994 Form 10-K).
10.109 Credit Agreement dated as of November 10, 1994 among Visayas Power
Capital Corporation, the Banks parties thereto and Credit Suisse Bank
Agent (incorporated by reference to Exhibit 10.107 to the Company's 1994
Form 10-K).
10.110 Finance Agreement dated as of November 10, 1994 between Visayas
Geothermal Power Company and Overseas Private Investment Corporation
(incorporated by reference to Exhibit 10.108 to the Company's 1994 Form
10-K).
10.111 Pledge and Security Agreement dated as of November 10, 1994 among Broad
Street Contract Services, Inc., Magma Power Company, Magma Netherlands
B.V. and Credit Suisse as Bank Agent (incorporated by reference to
Exhibit 10.109 to the Company's 1994 Form 10-K).
10.112 Overseas Private Investment Corporation Contract of Insurance dated
December 21, 1994 between OPIC and Magma Netherlands, B.V. (incorporated
by reference to Exhibit 10.110 to the
Company's 1994 Form 10-K).
10.113 Agreement as to Certain Common Representations, Warranties, Covenants
and Other Terms, dated November 10, 1994 between Visayas Geothermal Power
Company, Visayas Power Capital Corporation, Credit Suisse, as Bank Agent,
OPIC and the Banks named therein (incorporated by reference to Exhibit
10.111 to the Company's 1994 Form 10-K).
10.114 Indenture dated as of July 21, 1995 between Salton Sea Funding
Corporation ("Funding Corporation") and Chemical Trust Company of
California (incorporated by reference to Exhibit 4.1(a) to the Funding
Corporation Form S-4).
10.115 First Supplemental Indenture dated as of October 18, 1995 between
Funding Corporation and Chemical Trust Company of California (incorporated by
reference to Exhibit 4.1(b) to the Funding Corporation Form S-4).
10.116 Indenture dated July 1995 between the Company and The Bank of New York
(incorporated by reference to the Company's Amendment No. 1 to
Registration Statement on Form S-3 dated May 17, 1995).
10.117 Trust Indenture dated as of November 27, 1995 between the CE Casecnan
Water and Energy Company, Inc. ("CE Casecnan") and Chemical Trust Company
of California (incorporated by reference to Exhibit 4.1 to CE Casecnan's
Registration Statement on Form S-4 dated January 25, 1996 ("Casecnan S-
4")).
10.118 Modification to Contract No. P00019 dated August 1, 1995, Modification
to Contract No. P00020 dated August 1, 1995, Modification to Contract No.
P00034 dated February 8, 1995 and Modification to Contract No. P00035
dated February 8, 1995, amending the Navy Contract.
10.119 Plant Connection Agreement between Imperial Irrigation District and
Salton Sea Power Generation L.P. and Fish Lake Power Company dated July
14, 1995 (incorporation by reference to Exhibit 10.15 to the Funding
Corporation S-4).
10.120 Transmission Services Agreement between Imperial Irrigation District and
Salton Sea Power Generation L.P. and Fish Lake Power Company dated July
14, 1995 (incorporated by reference to Exhibit 10.17 to the Funding
Corporation S-4).
10.121 Second Amended and Restated Administrative Services Agreement among
CalEnergy Operation Company, Salton Sea Brine Processing L.P., Salton Sea
Power Generation L.P. and Fish Lake Power Company dated July 15, 1995
(incorporated by reference to Exhibit 10.20 to the Funding Corporation S-
4).
10.122 Second Amended and Restated Operating and Maintenance Agreement among
Magma Power Company, Salton Sea Brine Processing L.P., Salton Sea Power
Generation L.P., and Fish Lake Power Company dated July 15, 1995
(incorporated by reference to Exhibit 10.21 to the Funding Corporation S-
4).
10.123 Amended and Restated Casecnan Project Agreement between the National
Irrigation Administration and CE Casecnan Water and Energy Company Inc.
dated June 26, 1995 (incorporated by reference to Exhibit 10.1 to the
Casecnan Form S-4).
10.124 Stock Purchase Agreement, dated as of July 3, 1996, by and among CE/FS
Holding Company, Inc., David H. Dewhurst and all remaining owners of
capital stock of Falcon Seaboard Resources, Inc. (incorporated by
reference to Exhibit 99.1 to the Company's Form 8-K, dated July 8, 1996,
File No. 1-9874).
10.125 Indenture for the 6 1/4% Convertible Junior Subordinated Debentures,
dated as of April 1, 1996, among CalEnergy Company, Inc., as Issuer, and
the Bank of New York, as Trustee (incorporated by reference to Exhibit
4.3 to Amendment 1 to the Company's Registration Statement on Form S-3,
Registration No. 333-08315).
10.126 Indenture, dated as of September 20, 1996, between the Company and IBJ
Schroder Bank & Trust Company, as trustee, relating to $225,000,000
principal amount of 9 1/4% Senior Notes due 2006 (incorporated by
reference to Exhibit 4.1 to the Company's Registration Statement on Form
S-3, Registration No. 333-15591).
10.127 Second Supplemental Indenture, dated as of June 20, 1996, between
Chemical Trust Company of California and Funding Corporation
(incorporated by reference to Exhibit 4.1(c) to Amendment No. 1 to the
Funding Corporation's Registration Statement on Form S-4, Registration
No. 333-07527 ("Funding Corp. II S-4").
10.128 Third Supplemental Indenture, between Chemical Trust Company of
California and the Funding Corporation (incorporated by reference to
Exhibit 4.1(d) to the Funding Corp. II S-4).
10.129 Indenture for the 6 1/4% Convertible Junior Subordinated Debentures due
2012, dated as of February 26, 1997, between the Company, as issuer, and
the Bank of New York, as Trustee.
10.130 Term Loan and Revolving Facility Agreement, dated as of October 28,
1996, among CE Electric UK Holdings, CE Electric UK plc and Credit Suisse.*
10.131 Public Electricity Supply License*
10.132 Second Tier Supply Licenses to Supply Electricity for England & Wales
and Scotland.*
10.133 Pooling and Settlement Agreement for the Electricity Industry in England
and Wales dated 30th March, 1990 (as amended at 17th October, 1996),
among The Generators (named therein), the Suppliers (named therein),
Energy Settlements and Information Services Limited (as Settlement System
Administrator), Energy Pool Funds Administration Limited (as Pool Funds
Administrator), Scottish Power plc, Electricite deFrance, Service
National and Others.*
10.134 Master Connection and User System Agreement with The National Grid
Company plc.*
10.135 Gas Suppliers License dated February 21, 1996.*
10.136 First Supplemental Trust Indenture dates as of February 18, 1997 between
Coso Funding Corp. and First Bank, National Association (successor to
Bank of America Nation Trust and Savings Association).*
10.137 Form First Amendment to Amended and Restated Credit Agreement, dated
February 18, 1997, between First Bank, National Association (as successor
to Coso Funding Corp.) and the Coso Joint Ventures.*
10.138 Omnibus Acknowledgment and Agreement dated February 18, 1997 between
Coso Funding Corp., the Coso Joint Ventures, First Bank, National Association
and others.*
11.0 Calculation of Earnings Per Share in accordance with Interpretive Release
No. 34-9083.
13.0 The Company's 1996 Annual Report (only the portions thereof specifically
incorporated herein by reference are deemed filed herewith).
21.0 Subsidiaries of Registrant.
23.0 Consent of Independent Auditors.
24.0 Power of Attorney.
27.0 Financial Data Schedule.
s:\legal\10k-96\form10ka.1
Dated 28th October 1996
560,000,000 Pounds Sterling
TERM LOAN AND REVOLVING FACILITY AGREEMENT
between
CE ELECTRIC UK HOLDINGS
as Company
CE ELECTRIC UK plc
as Bidco
CREDIT SUISSE
as Arranger and Agent
and
OTHERS
Clifford Chance
200 Aldersgate Street
London EC1A 4JJ
CONTENTS
Clause
PART 1
INTERPRETATION
1. Interpretation
PART 2
THE FACILITIES
2. The Facilities
3. Term and Purpose of the Facilities
4. Amount of the Facilities and Option to Utilise Overdraft Facility
5. Conditions Precedent
6. Rights and Obligations
PART 3
CANCELLATION AND PREPAYMENT
7. Cancellation
8. Prepayment
PART 4
UTILISATION PROCEDURES
9. Utilisation Requests
10. Amount of Utilisation
11. Allocation Amongst Banks
PART 5
THE ADVANCES
12. Making of Advances
13. Interest Periods
14. Interest
15. Repayment
PART 6
CHANGE IN CIRCUMSTANCES
16. Taxes
17. Increased Costs
18. Illegality
19. Mitigation
20. Market Disruption
PART 7
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
21. Representations
22. Information
23. Undertakings
24. Default
PART 8
GUARANTEE
25. Guarantee
PART 9
PAYMENTS
26. Currency of Amount
27. Payments
28. Redistribution of Payments
29. Netting of Payments and Set-Off
PART 10
DEFAULT INTEREST AND INDEMNITY
30. Default Interest and Indemnity
PART 11
FEES, COSTS AND EXPENSES
31. Fees
32. Costs and Expenses
PART 12
AGENCY PROVISIONS
33. The Agent and the Arranger
PART 13
ASSIGNMENT AND TRANSFERS
34. Benefit of Agreement
35. Assignments and Transfers by the Obligors
36. Assignments and Transfers by Banks
37. Disclosure of Information
PART 14
MISCELLANEOUS
38. Calculations and Evidence of Net Debt
39. Partial Invalidity
40. Remedies, Amendments and Waivers
41. Notices
42. Law
THIS AGREEMENT is made on 28th October 1996.
BETWEEN:
(1) CE ELECTRIC UK HOLDINGS an unlimited liability company
incorporated in England and Wales with company no. 3270696 (the
"Company");
(2) CE ELECTRIC UK plc a limited liability company incorporated
in England and Wales with company no. 3271033 ("Bidco");
(3) CREDIT SUISSE in its capacity as arranger of the facilities
(the "Arranger");
(4) CREDIT SUISSE as agent for the banks (the "Agent"); and
(5) CREDIT SUISSE as original lender (the "Original Lender").
NOW IT IS HEREBY AGREED as follows:
PART 1
INTERPRETATION
1. Interpretation
1.1 In this Agreement:
"Accession Memorandum" means a memorandum in the form set out in
the Ninth Schedule;
"Act" means the Electricity Act 1989 and, unless the context
otherwise requires, all subordinate legislation made pursuant
thereto;
"Adjusted Share Capital and Reserves" means the aggregate of the
following items namely:
(i) the amount (including any share premium) of the share
capital of the Company for the time being issued and paid up or
credit as paid up; and
(ii) the amounts standing to the credit of all capital and
revenue reserve accounts and the consolidated profit and loss
account of the Group;
but adjusted to the extent that the following items have not
already been added, deducted or excluded in arriving at the
figures referred to in (i) or (ii) above;
(iii) by adding the outstanding amount of any Subordinated Debt;
(iv) by deducting the amounts standing to the debt of all
capital and revenue reserve accounts and the consolidated profit
and loss account of the Group;
(v) by deducting any amounts shown in respect of interests of
non-Group members in Group subsidiaries;
(vi) by adding the amount of goodwill arising upon and in
respect of the acquisition of the Shares; and
(vii) by deducting the amount of any distribution declared or
made by the Company or any of its subsidiaries (other than to
another member of the Group) out of profits included within
reserves to the extent that those reserves have not already been
reduced on account thereof,
but so that no amount to be added, deducted or excluded as a
result of any of the foregoing shall be added, deducted or
excluded more than once in the same calculation and each such
amount shall be determined by reference to the most recent
financial statements and compliance certificates delivered
hereunder as adjusted pursuant to the provisions of Clause 22.9
(Change in Basis);
"Advance" means a Revolving Advance or, as the case may be, a
Term Advance;
"Announcement Date" means the date on which the Press Release is
issued;
"Associated Costs Rate" means, in respect of any period, the
percentage rate per annum given by the formula set out in the
Third Schedule (Associated Costs Rate);
"Authorised Signatory" means in relation to any communication to
be made, or any document to be executed or certified by an
Obligor, any Person;
(i) who is at such time duly authorised, by or pursuant to the
board resolution or other authorisation mentioned in the Second
Schedule (Conditions Precedent) or, as the case may be, the Tenth
Schedule (Documents to Accompany Accession Memorandum) or in such
other manner as may be acceptable to the Agent, to make such
communication, or to execute or certify such document, on behalf
of such Obligor; and
(ii) in respect of whom the Agent has received a certificate of
the Secretary (or other duly authorised officer) of such Obligor
setting out the name and, where such Person is authorised to
execute or certify documents, signature of such Person and
confirming such Person's authority to act as aforesaid;
"Available Revolving Commitment" means, in relation to a Bank,
its Revolving Commitment less its Revolving Outstandings, if any;
"Available Revolving Facility" means, at any time, the aggregate
of the Available Revolving Commitments;
"Available Term Commitment" means, in relation to a Bank, the
aggregate of its Available Tranche A Term Commitment and its
Available Tranche B Term Commitment;
"Available Term Facility" means, at any time the aggregate of the
Available Term Commitments;
"Available Tranche A Term Commitment" means, in relation to a
Bank, its Tranche A Term Commitment (to the extent not cancelled
or reduced) less the aggregate of the outstanding Tranche A Term
Advances previously made by such Bank;
"Available Tranche B Term Commitment" means, in relation to a
Bank, its Tranche B Term Commitment (to the extent not cancelled
or reduced) less the aggregate of the outstanding Tranche B Term
Advances previously made by such Bank;
"Banks" means, subject to Clause 7.5 (Bank's Cessation), the
Original Lender and any transferee which becomes a party hereto
pursuant to a Transfer Certificate or, as the case may be, a
Global Transfer Certificate acting in their capacity as providers
of the Facilities and "Bank" means any one of them;
"Borrowers" means the Company and, upon the Target or any other
member of the Group becoming a Borrower pursuant to Clause 5.3
(Accession), the Target or such other member of the Group and
"Borrower" means any of them;
"Borrowings" means, any Indebtedness for, or for interest or
other charges relating to, or otherwise in respect of or pursuant
to:
(a) moneys borrowed or raised, including, without limitation,
monies raised by the sale of receivables or other financial
assets on terms (and to the extent) that recourse may be had to
the vendor in the event of non-payment of such receivables or
financial assets when due and monies raised under acceptance
credit facilities through the issue of bonds, notes, debentures,
bills, loan stocks and other debt securities (including any debt
security convertible, but not at the relevant time converted,
into share capital), provided that the Subordinated Debt (if any)
shall not constitute a Borrowing;
(b) the acquisition cost of assets or services to the extent
payable on deferred payment terms after the time of acquisition
or possession thereof by the party liable (whether or not
evidenced by any bond, note, debenture, loan stock or other debt
security), excluding (i) retentions which are normal in the trade
concerned and not entered into primarily as a means of raising
finance, (ii) any payment relating to construction works or the
acquisition of fixed assets which will become payable only upon
fulfilment of conditions relating to or comprising completion or
commissioning of certain stages in such works or in the supply
programme or the granting of any planning permission for such
works or fixed assets and which has not yet become payable by
reason of the non-fulfilment of any such condition, and (iii) any
such cost payable on deferred payment terms which are normal in
the business concerned and not entered into primarily as a means
of raising finance, and which do not involve any deferral of
payment of any sum for more than six months;
(c) moneys received in consideration for the supply of goods
and/or services to the extent received more than six months
before the due date for such supply (but excluding any liability
in respect of bona fide advance payments and deposits received
from customers in the ordinary course of trade);
(d) instalments under conditional sale agreements entered into
primarily as a method of raising finance;
(e) payments under leases (whether in respect of land,
machinery, equipment or otherwise) and payments under hire
purchase agreements and similar agreements and instruments, in
each case where such leases, agreements or instruments are
treated as finance leases in accordance with generally accepted
accounting principles;
(f) (i) any guarantee, indemnity, letter of credit or other
legally binding instrument to assure payment of, or against loss
in respect of non-payment of, any of the Indebtedness specified
in this definition and any counter-indemnity in respect of any
thereof; and/or
(ii) any legally binding agreement or other instrument entered
into in connection with any of the Indebtedness specified in this
definition requiring, or giving any Person the right
(contingently or otherwise) to require, that any other Person
invest in, make advances to, purchase assets of, or maintain the
solvency or financial condition of, any other Person;
(g) any interest rate and/or currency swap, and any other
interest or currency protection, hedging or financial futures
transaction or arrangement,
provided that double counting shall be avoided and that in
computing an amount of Borrowings of any Person or Persons for
the purposes of the definition of Net Debt or for the purposes of
Clause 23.6 (Restriction on Borrowings):
(i) any interest, dividends, commission, fees or other like
financing charges, and any item falling within paragraph (g),
shall be excluded, save in each case to the extent capitalised or
more than 15 days overdue for payment;
(ii) in respect of any bonds, notes, debentures, loan stocks
and/or other debt securities issued at a discount or redeemable
at a premium and constituting a Borrowing, the issue price
thereof, together with any applicable discount or premium
recognised or required by generally accepted accounting
principles to be recognised at the time of calculation (other
than amounts required by generally accepted accounting principles
to be accounted for as interest) in the relevant financial
statement of the relevant person (were any then to be prepared),
shall be included;
(iii) in respect of paragraphs (d) and (e) (but in case of
paragraph (d), only where no interest or similar charge is
charged), only the principal amount thereof as determined by
generally accepted accounting principles or (in the case of
paragraph (e)) the capitalised value (as so determined) of any
items falling thereunder shall be included;
(iv) any item falling within paragraph (f) which is in respect of
any sum excluded by item (i) or (iii) of this proviso shall be
excluded; and
(v) any item falling within paragraph (f) shall be included only
to the extent that the same has been or (in accordance with
generally accepted accounting principles) ought to be given a
value in the latest or next relevant financial statements, or in
any notes to those financial statements;
"Capitalisation" means, at any particular time, the aggregate of
Adjusted Share Capital and Reserves and Net Debt at such time;
"Certain Funds Period" means the period commencing at opening of
business on the date hereof and ending at close of business:
(a) on the earlier of:
(i) the date which falls 180 days after the Announcement Date;
(ii) the date which falls three months after the Unconditional
Date; and
(iii) the date which falls 200 days after the date hereof; or
(b) for the purposes of a Utilisation under paragraph (a) of
Clauses 3.2 (Purpose of Tranche A Term Facility) only on the date
which falls no later than 200 days after the date hereof; or
(c) for the purpose of a Utilisation under paragraph (b)(iii) of
Clause 3.2 (Purpose of Tranche A Term Facility) only no later
than 180 days after the date of the offer (as that term is used
in the Companies Act 1985) or, if one or more applications to
court are made under Section 430(C)(1) of the Companies Act 1985
the first business day after the last day on which any such
application is disposed of, whichever is the latter
"Clean-Up Date" means the date falling 150 days after Target
becomes a subsidiary of the Company;
"Code" means The City Code on Takeovers and Mergers;
"Commitments" means, in relation to a Bank, its Revolving
Commitment and/or its Tranche A Term Commitment and/or its Trance
B Term Commitment, as the case may be;
"Dangerous Substance" means any radioactive emissions, noise, any
natural or artificial substance (whether in the form of a solid,
liquid, gas or vapour) the generation, transportation, storage,
treatment, use or disposal of which (whether alone or in
combination with any other substance) including (without
limitation) any controlled, special, hazardous, toxic,
radioactive or dangerous substance or waste, gives rise to a risk
of causing harm to man or any other living organism or damaging
the Environment or public health or welfare;
"Director General" means the Person appointed from time to time
by the Secretary of State to hold office as the Director General
of Electricity Supply for the purposes of the Act;
"EBITDA" means, in respect of any Relevant Period, the total
operating profit for continuing operations, acquisitions ( as a
component of continuing operations) and discounted operations
after taking into account all exceptional items but before taking
account (or, as the case may be, deducting) (i) Interest Payable
and Interest Receivable, (ii) all amounts provided for
depreciation, goodwill and amortisation, (iii) all extraordinary
items, (iv) all Taxes and (v) any Offer Costs in each case, for
that Relevant Period (calculated on a consolidated basis
disregarding any portion of any item taken into account in that
calculation which is attributable to any minority interests in
subsidiaries of the Company) all as determined by reference to
the most recent financial statements and compliance certificates
delivered hereunder as adjusted pursuant to the provisions of
Clause 22.9 (Change in Basis);
"Environment" means all, or any of, the following media: the air
(including, without limitation, the air within buildings and the
air within other natural or man-made structures above or below
ground), water (including, without limitation, ground and surface
water) and land (including, without limitation, surface and sub-
surface soil);
"Environmental Claim" means any claim by any Person:
(a) in respect of loss or liability suffered or incurred by that
Person as a result of or in connection with any violation of
Environmental Law; or
(b) that arises as a result of or in connection with
Environmental Contamination and that could give rise to any
remedy or penalty (whether interim or final) that may be enforced
or assessed by private or public legal action or administrative
order or proceedings, including without limitation, any such
claim arising from injury to Persons, property or natural
resources;
"Environmental Contamination" means each of the following and
their consequences:
(a) any release, emission, leakage or spillage of any Dangerous
Substance at or from any site owned, occupied or used by any
member of the Group into any part of the Environment; or
(b) any accident, fire, explosion or sudden event at any site
owned, occupied or used by any member of the Group which is
directly or indirectly caused by or attributable to any Dangerous
Substance; or
(c) any other pollution of the Environment;
"Environmental Law" means all applicable laws (including, without
limitation, common law), regulations and directing codes of
practice, circulars, guidance notices and the like having the
force of the law (whether in the United Kingdom or elsewhere)
concerning pollution or the protection of human health, the
environment, the conditions of the work place or the generation,
transportation, storage, treatment or disposal of Dangerous
Substances;
"Environmental Licence" means any permit, licence, authorisation,
consent or other approval required by any Environmental Law;
"Event of Default" means, subject to Clause 24.4 (Clean-Up
Period), any of the events mentioned in Clause 24.1 (Events of
Default);
"Facilities" means the Revolving Facility, the Tranche A Term
Facility and the Tranche B Term Facility;
"Facility Office" means, in relation to the Original Lender, its
office identified with its signature below, or in relation to a
Transferee to whom the participation of a Bank is being
transferred, its office identified in the "Administrative
Details" section to the relevant Transfer Certificate or, as the
case may be, Global Transfer Certificate or, in any case, such
other office as it may from time to time, by notice to the Agent,
select or such other office as may be agreed pursuant to Clause
19 (Mitigation);
"Facility Termination Date" means:
(i) when designed "Term", the last day of the Certain Funds
Period; and
(ii) when designated "Revolving", (a) (if no Term Advance is
drawn at all) the Term Facility Termination Date and (b)
otherwise the Final Maturity Date;
"Final Maturity Date" means the date falling on the fifth
anniversary of the Unconditional Date;
"Finance Documents" means this Agreement, the Intercreditor
Agreement, the side letter referred to in paragraph 7 of the
Second Schedule and the fee letter referred to in Clauses 31.2
(Agency Fees) and 31.3 (Arrangements Fees);
"Global Transfer Certificate" means a certificate substantially
in the form set out in Part 2 of the Sixth Schedule (Form of
Global Transfer Certificate) signed by a Bank and each Transferee
whereby;
(i) such Bank seeks to procure the transfer to each Transferee
of part of such Bank's rights and obligations hereunder, subject
to and upon the terms and conditions set out in Clause 36
(Assignments and Transfers by Banks); and
(ii) each Transferee undertakes to perform the obligations it
will assume as a result of the delivery of such certificate to
the Agent as contemplated in Clause 36 (Assignments and Transfers
by Banks);
"Group" means, at any time, the Company and each of its
subsidiaries (if any) at such time;
"Information Memorandum" means an information memorandum in
connection herewith as, when and if agreed between the Company
and the Arranger for use in the syndication of the Facilities;
"Instructing Group" means, at any time a Bank or group of Banks
the aggregate of whose Commitment equals or exceeds 66 2/3% of
the Commitments of all the Banks (or, if the Commitments have
been reduced to zero equalled or exceeded such percentage
immediately before such reduction) Provided that for the
purposes hereof the operation of Clause 4.2 (Overdraft Facility)
shall be ignored;
"Intercreditor Agreement" means an agreement in the Agreed Form
made or to be made between, inter alia, the Company, the Agent
and the creditors from time to time in respect of the
Subordinated Debt;
"Interest Payable; means, in respect of any Relevant Period, all
interest (including, without limitation, the interest elements of
finance leases), commission, fees (of a recurring nature) and
similar charges as shown in (or in the notes to) the financial
statements of the Group calculated on a consolidated basis for
the Relevant Period all as determined by reference to the most
recent financial statements and compliance certificates delivered
hereunder as adjusted pursuant to the provisions of Clause 22.9
(Change in Basis);
"Interest Period" means, save as otherwise provided herein, any
of those periods mentioned in Clause 13 (Interest Periods);
"Interest Receivable" means, in respect of any Relevant Period,
all interest receivable and similar income as shown in (or in the
notes to) the financial statements of the Group calculated on a
consolidated basis for the Relevant Period all as determined by
reference to the most recent financial statements and compliance
certificates delivered hereunder as adjusted pursuant to the
provisions of Clause 22.9 (Change in Basis);
"LIBOR" means, in relation to any Advance or unpaid sum, on any
day, the rate per annum determined by the Agent to be equal to
the arithmetic mean (rounded upwards, if necessary to four
decimal places) of the respective rates notified to the Agent by
each of the Reference Banks as the rate at which such Reference
Bank is offering deposits in sterling and for the specified term
to prime banks in the London Interbank Market at or about 11.00
a.m. on the Quotation Date for deposits in sterling of such term
and, for the purposes of this definition, "specified term" means,
in relation to a Revolving Advance, the Term of such Revolving
Advance, in relation to a Term Advance, the Interest Period in
respect of such Advance and, in relation to an unpaid sum, the
period in respect of which LIBOR falls to be determined on that
day in relation to such unpaid sum;
"Licence" means the existing public electricity supply licence
granted by the Secretary of State to Target under Section 6(1)(c)
of the Act, as modified and/or extended from time to time;
"Licenceholder" means at any time the member of the Group which
then holds the Licence;
"Licence Undertaking" means any and each undertaking or assurance
given in connection with the Offer by any one or more of the
Shareholders, the Company or the Target or any Affiliate of any
of them to the Director General or the Secretary of State
concerning the management and/or ownership of and/or other
matters concerning the Target once it has become a subsidiary of
the Company;
"Margin" means a rate per annum of 0.75% Provided that if on any
Margin Adjustment Date:
(i) an Event of Default has not occurred or has occurred but is
not continuing; and
(ii) it is determined by the Agent by reference to:
(a) from the date hereof to (but excluding) the last day of the
Certain Funds Period, consolidated unaudited accounts of the
Company and its subsidiaries prepared on a pro forma basis
prepared as if all the Shares had been acquired pursuant to the
Offer, the Facilities had been fully drawn and the condition set
out in paragraph 9 of the Second Schedule (Conditions Precedent)
had been satisfied; or
(b) from the last day of the Certain Funds Period, the latest
accounts at that time,
that:
(A) the ration of Net Debt to Capitalisation of the Group
calculated in accordance with Clause 23.9 (Financial Ratios) is
equal to or less than 65% but greater than 60%, then the
applicable Margin shall, with effect from that Margin Adjustment
Date, be reduced from 0.75% to 0.625% per annum;
(B) the ratio of Net Debt to Capitalisation of the Group
calculated in accordance with Clause 23.9 (Financial Ratios) is
equal to or less than 60% but greater than 55%, then the
applicable Margin shall, with effect from that Margin Adjustment
Date, be reduced from 0.75% to 0.5% per annum; and
(C) the ration of Net Debt to Capitalisation of the Group
calculated in accordance with Clause 23.9 (Financial Ratios) is
equal to or less than 55%, then the applicable Margin shall, with
effect from that Margin Adjustment Date, be reduced from 0.75% to
0.325% per annum;
"Margin Adjustment Date" means the first Utilisation Date and
thereafter the next business day following the date of delivery
of any set of quarterly accounts to the Agent pursuant to Clause
22.3 (Semi-annual and Quarterly Information);
"Material Subsidiary" means, at any time, each Obligor (other
than the Company), Bidco, the Target and any other Person which
is a subsidiary of the Company and is a Licenceholder or (other
than any Project Finance Subsidiary):
(i) (a) whose profits before tax on ordinary activities or (b)
whose gross assets (excluding goodwill) represent 10% or more of
the consolidated profits before tax on ordinary activities of the
Group or, as the case may be, consolidated gross assets
(excluding goodwill) of the Group in each case as calculated by
reference to the latest consolidated financial statements of such
subsidiary and the latest consolidated financial statements of
the Group adjusted in such manner as the auditors of the Company
may determine (which determination shall be conclusive in the
absence of manifest error) to reflect the profits (or losses)
before tax on ordinary activities and consolidated gross assets
(excluding goodwill) of any Person which has become or ceased to
be a member of the Group since the end of the financial period to
which the latest financial statements of the Group relate); or
(ii) to which is transferred all or substantially all of the
business, undertaking or assets of a Person which immediately
prior to such transfer is a Material Subsidiary whereupon the
transferor shall cease to be a Material Subsidiary and the
transferee shall become a Material Subsidiary under this sub-
Clause (ii) upon the completion of such transfer;
Provided that any determination made by the auditors of the
Company as to whether a subsidiary of the Company is or is not a
Material Subsidiary at any time shall be conclusive in the
absence of manifest error;
"Net Debt" means at any time, the amount of the Borrowings of the
members of the Group from sources external to the Group plus the
amount of any actual or contingent liability of any member of the
Group to provide funds by loan, subscription for share capital or
otherwise to any Person in which any member of the Group has an
ownership interest at such time less the cash in hand and cash
equivalents of the members of the Group at that time, in each
case giving effect to the proviso to the definition of
"Borrowings";
"Net Interest Payable" means, in respect of any Relevant Period,
Interest Payable less Interest Receivable for that Relevant
Period;
"Obligors" means the Company in its capacity as a Borrower
hereunder and each of the Company and Bidco in its capacity as
guarantor pursuant to Clause 25 (Guarantee) and, upon any Person
becoming a Borrower pursuant to Clause 5 (Conditions Precedent),
that Person (and "Obligor" means any of them);
"Offer" means the offer proposed to be made by or on behalf of
Bidco, substantially on the terms and conditions set out in the
Press Release, to acquire the whole of the ordinary share capital
(whether in issue or falling to be allotted) of the Target not
already owned by Bidco, as such offer may from time to time be
amended, added to, revised, renewed or waived in compliance with
the terms hereof;
"Offer Costs" means all costs, fees and expenses (and Taxes
thereon) and all stamp, documentary, registration or similar
Taxes incurred by or on behalf of the Company or any subsidiary
of the Company in connection with the Offer and the Preference
Share Offer including the preparation, negotiation and entry into
of this Agreement;
"Offer Document" means the offer document to be despatched to
shareholders of the Target in respect of the Offer and the
Preference Share Offer;
"Ordinary Shares" means the ordinary shares of 56 12/23p each in
the capital of the Target;
"Original Financial Statements" means the audited consolidated
accounts of the Target for its financial year ended 31st March
1996;
"Outstandings" means, in relation to a Bank, its Revolving
Outstandings and/or its Tranche A Term Outstandings and/or its
Tranche B Term Outstandings, as the context may require;
"Overdraft Bank" means a Bank designated for the time being as an
Overdraft Bank for the purposes hereof pursuant to Clause 4.2
(Overdraft Facility);
"Overdraft Facility" means any facility designated to such
pursuant to Clause 4.2 (Overdraft Facility);
"Panel" means the Panel on Takeovers and Mergers;
"Pooling and Settlement Agreement" means an agreement dated 30
March 1990 made by the target with The National Grid Company plc
and others setting out the rules and procedures for the operation
of an electricity trading pool and of a settlement system and,
while the same has effect, the "Initial Settlement Agreement"
also dated 30 March 1990 and made between the same parties, as
amended from time to time;
"Potential Event of Default" means any event which with the
giving of notice or the expiry of any grace period or the
fulfilment of any other condition (apart from the mere occurrence
of such event) (or any combination thereof) would become an Event
of Default Provided that any such event which by reason of the
express provisions of any Finance Document requires the
satisfaction of a condition as to materiality before it may
become an Event of Default shall not be a Potential Event of
Default unless that condition is satisfied;
"Preference Share Offer" means the offer proposed to be made by
or on behalf of Bidco, substantially on the terms and conditions
set out in the Press Release, to acquire the whole of the
preference share capital (whether in issue or falling to be
allotted), as such offer may from time to time be amended, added
to, revised, reviewed or waived in compliance with the terms
hereof;
"Preference Shares" means a press announcement to be released by
Bidco announcing the terms of the Offer and the Preference Share
Offer in the Agreed Form;
"Press Release" means a press announcement to be released by
Bidco announcing the terms of the Offer and the Preference Share
Offer in the Agreed Form;
"Project Finance Indebtedness" means any Indebtedness incurred to
finance the ownership, acquisition, construction, development
and/or operation of an asset:
(a) which is incurred by a Project Finance Subsidiary; or
(b) in respect of which the Person or Persons to whom such
Indebtedness is or may be owed by the relevant debtor (whether or
not a member of the Group) have no recourse whatsoever for the
repayment of or payment of any sum relating to such Indebtedness
other than:
(i) recourse to such debtor for amounts limited to the aggregate
cash flow or net cash flow (other than historic cash flow or
historic net cash flow) from such asset; and/or
(ii) recourse to such debtor for the purpose only of enabling
amounts to be claimed in respect of such Indebtedness in an
enforcement of any encumbrance given by such debtor over such
asset or the income, cash flow or other proceeds deriving
therefrom to secure such Indebtedness or any recourse referred to
in (iii) below, Provided that (A) the extent of such recourse to
such debtor is limited solely to the amount of any recoveries
made on any such enforcement, and (B) such Person or Persons are
not entitled, by virtue of any right or claim arising out of or
in connection with such Indebtedness, to commence proceedings for
the winding up or dissolution of the debtor or to appoint to
procure the appointment of any receiver, trustee or similar
Person or officer in respect of the debtor or any of its assets
(save for the assets the subject of such encumbrance); and/or
(iii) recourse to such debtor generally, which recourse is
limited to a claim for damages (other than liquidated damages and
damages required to be a calculated in a specified way) for
breach of an obligation (not being a payment obligation or an
obligation to procure payment by another or an obligation to
comply or to procure compliance by another with any financial
ratios or other test of financial condition) by the Person
against whom such recourse is available;
"Project Finance Subsidiary" means any subsidiary of the Company
(other than Bidco, the Target or a Licenceholder):
(a) which is a company whose principal assets and business are
constituted by the ownership, acquisition, development and/or
operation of an asset whether directly or indirectly;
(b) none of whose Borrowings in respect of the financing of such
ownership, acquisition, development and/or operation of an asset
benefits from any recourse whatsoever to any member of the Group
(other than the subsidiary itself or another Project Finance
Subsidiary) in respect of the repayment thereof, except as
expressly referred to in paragraph (b)(iii) of the definition of
"Project Finance Indebtedness"; and
(c) which has been designated as such by the Company by written
notice to the Agent, Provided that the Company may give written
notice to the Agent at any time that any Project Finance
Subsidiary is no longer a Project Finance Subsidiary, whereupon
it shall cease to be a Project Finance Subsidiary;
"Qualifying Lender" means a bank as defined in or pursuant to
section 840A of the Income and Corporation Taxes Act 1988 and
which is within the charge to United Kingdom Corporation Tax as
regards interest received by it under this Agreement;
"Quotation Date" means, in relation to any period for which an
interest rate is to be determined hereunder, the first day of
that period;
"Reference Banks" means the principal London office of Credit
Suisse and, in the event there being three or more Banks, any
such additional Bank as may be selected by the Company and the
Agent from time to time or such substitute reference banks as may
be agreed by the Company and the Agent;
"Relevant Period" means each annual financial period of the
Company ending in (subject to provided in Clause 22.11
(Accounting Reference Period)) March in each calendar year and
each period of four financial quarters of the Company ending in
June, September and December in each calendar year (including,
where contemplated in the definition of Margin, pro forma
accounting periods);
"Repayment Date" means, in relation to any Revolving Advance, the
last day of the Term of such Revolving Advance;
"Requested Amount" means in relation to any Utilisation Request,
the aggregate principal amount of the Advance therein requested;
"Revolving Advance" means an advance made or to be made by a Bank
under the Revolving Facility pursuant to the terms hereof or, as
the case may be, the outstanding principal amount of any such
advance;
"Revolving Commitment" means, in relation to a Bank and save as
otherwise provided herein, the amount set opposite its name in
Column A of the First Schedule (The Original Lender)(or, as the
case may be, the amount specified in the Transfer Certificate or,
as the case may be, Global Transfer Certificate pursuant to which
such Bank became a party hereto minus (in the case of any
Overdraft Bank) the relevant amount duly designated for the time
being pursuant to Clause 4.2 (Overdraft Facility);
"Revolving Facility" means the sterling revolving credit facility
in an amount of up to 1,000,000,000 pounds sterling (adjusted
where necessary in accordance with Clause 4.2 (Overdraft
Facility) granted to the Borrowers by the Banks pursuant to
Clause 2.1 (Revolving Facility));
"Revolving Outstandings" means, in relation to any Bank and any
proposed Utilisation of the Revolving Facility, the aggregate of:
(i) the outstanding Revolving Advances previously made by such
Bank; and
(ii) any Revolving Advance which such Bank is then obliged to
make on or before the proposed Utilisation in question pursuant
to any other Utilisation;
but (in the case of paragraph (i) above) excluding any
outstanding Revolving Advances which will become repayable or
mature on or before the proposed Utilisation in question;
"Revolving Utilisation Request" means a notice given to the Agent
pursuant to paragraph (i) of Clause 9.1 (Delivery of Requests) in
the form set out in Part A of the Fifth Schedule (Form of
Revolving Utilisation Request);
"Rollover Utilisation" means a proposed Utilisation of the
Revolving Facility whose amount does not exceed the amount of
Revolving Advances to be repaid on the proposed Utilisation from
the proceeds of such proposed Utilisation;
"Secretary of State" means the Secretary of State for Energy from
time to time or such other Person as may for the time being be
fulfilling the functions of the Secretary of State under the Act;
"Shares" means the Ordinary Shares and the Preference Shares;
"Shareholders" means CE Energy, Inc., CE Power, Inc. and Kiewit
Energy UK, Inc. and each is a "Shareholder";
"Shareholders' Agreement" means an agreement dated on or about
the date of this Agreement between the Shareholders relating to
their shareholding in the Company;
"Subordinated Debt" means unsecured Borrowings of Bidco and/or
the Company, if any, which is subordinated to all Indebtedness
arising under this Agreement on the terms set out in the Eighth
Schedule (Terms of Subordinated Debt);
"Target" means Northern Electric plc;
"Term" means, in relation to any Revolving Advance, the period
for which such Advance is borrowed, as specified in the Revolving
Utilisation Request relating thereto;
"Term Advance" means a Tranche A Term Advance and/or Tranche B
Term Advance;
"Term Commitment" means, in relation to a Bank, either its
Tranche A Term Commitment or its Tranche B Term Commitment;
"Term Facility" means (a) the sterling term loan facility in an
aggregate amount of up to 460,000,000 pounds sterling granted to
the Company by the Banks pursuant to Clause 2.3 (Term Facility),
(b) when designated "Tranche A", that part of such term loan
facility for the purposes referred to in Clause 3.2 (Purpose of
Tranche A Term Facility) and (c) when designated "Tranche B", the
term loan facility for the purposes referred to in Clause 3.3
(Purpose of Tranche B Term Facility);
"Term Outstandings" means, at any time, the aggregate of the
principal amount of each outstanding Term Advance at that time;
"Term Utilisation Request" when designated "Tranche A" or
"Tranche B" (as the case may be) means a notice given to the
Agent pursuant to paragraph (ii) of Clause 9.1 (Delivery of
Requests), in the form set out in Part B of the Fifth Schedule
(Form of Term Utilisation Request);
"Tranche A Term Advance" means an advance (as from time to time
reduced by repayment) made or to be made by a Bank under Tranche
A of the Term Facility pursuant to the terms hereof;
"Tranche B Term Advance" means an advance (as from time to time
reduced by repayment) made or to be made by a Bank under Tranche
B of the Term Facility pursuant to the terms hereof;
"Tranche A Term Commitment" means, in relation to a Bank and save
as otherwise provided herein, the amount set out in a side letter
of even date herewith between, among others, the Original Lender
and the Company or, as the case may be, the amount specified in
the Transfer Certificate, (or, as the case may be), Global
Transfer Certificate, pursuant to which such Bank became party
hereto;
"Tranche B Term Commitment" means, in relation to a Bank and save
as otherwise provided herein, the amount set out in a side letter
of even date herewith between, among others, the Original Lender
and the Company or, as the case may be, the amount specified in
the Transfer Certificate, (or, as the case may be), Global
Transfer Certificate, pursuant to which such Bank became a party
hereto;
"Transaction Documents" means the Finance Documents, the Licence
and any and each Licence Undertaking;
"Transfer Certificate" means a certificate substantially in the
form set out in Part 1 of the Sixth Schedule (Form of Transfer
Certificate) signed by a Bank and a Transferee whereby:
(i) such Bank seeks to procure the transfer to such Transferee
of all or part of such Bank's rights and obligations hereunder,
subject to and upon the terms and conditions set out in Clause 36
(Assignments and Transfers by Banks); and
(ii) such Transferee undertakes to perform the obligations it
will assume as a result of delivery of such certificate to the
Agent as contemplated in Clause 36 (Assignments and Transfers by
Banks);
"Transferees" means banks to which a Bank seeks to transfer all
or part of its rights and obligations in accordance with Clause
36 (Assignments and Transfers by Banks) and "Transferee" means
one of them;
"Unconditional Date" means the date on which the Offer is
declared or becomes unconditional in all respects;
"Utilisation" means a utilisation of the Facilities hereunder;
"Utilisation Date" means the date of a Utilisation, being a date
specified in the relevant Term or Revolving Utilisation Request
on which the Advances are to be made; and
"Utilisation Request" means a Term Utilisation Request or a
Revolving Utilisation Request.
1.2 Any reference in this Agreement to:
an "Affiliate" of any Person means any subsidiary or holding
company of that Person, or any subsidiary of any such holding
company, or any other Person in which that Person or any such
holding company or subsidiary owns at least 20% of the equity
share capital or the like;
the "Agent"; the "Original Lender" or any "Bank" shall, subject
to otherwise provided in this Agreement, be construed so as to
include their respective successors and permitted transferees and
assigns;
an "Agency" of a state includes any agency, authority, central
bank, department, government, legislature, minister, ministry,
official or public or statutory Person (whether autonomous or
not) of, or of the government of, that state;
a document in the "Agreed Form" means that document in the form
initialled by or on behalf of the Company and the Agent;
the "Assets" of any Person means all or any part of its business,
undertaking, property, assets, revenues (including any right to
receive revenues) and uncalled capital, wherever situated;
a "business day" shall be construed as a reference to a day
(excluding Saturday and Sunday) on which banks are open for
business London;
"Consent" also includes an approval, authorisation, exemption,
filing, licence, order, permission, recording or registration
(and references to obtaining Consents shall be construed
accordingly);
a "Directive" includes any present or future directive,
regulation, request, requirement, rule or credit restraint
programme of any Agency of any state or of any self-regulating
organisation (whether or not having the force of law but, if not
having the force of law, only if compliance with the Directive is
in accordance with the general practice of Persons to whom the
Directive is intended to apply);
"generally accepted accounting principles" means the accounting
principles and practices specified in Clause 22.1 (Preparation of
Accounts);
"Indebtedness" includes, with respect to any Person (the
"Relevant Person"), any obligation (whether present or future,
actual or contingent, secured or unsecured, as principal, surety
or otherwise) (a) of the Relevant Person for the payment or
repayment of money or (b) of any other Person for the payment or
repayment of money secured by Security on Assets of the Relevant
Person, whether or not the Relevant Person is liable in respect
of any obligation so secured;
a "law" includes common or customary law and any constitution,
decree, judgment, legislation, order, ordinance, regulation,
statute, treaty or other legislative measure, in each case of any
jurisdiction whatever (and "lawful" and "unlawful" shall be
construed accordingly);
something having a "Material Adverse Effect" is to its having a
material adverse effect on the ability of an Obligor to perform
and comply with its payment obligations under any Finance
Document, its obligations under Clause 23.9 (Financial Ratios)
and any other of its material obligations under the Finance
Documents;
a "month" is reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day in
the next calendar month save that, where any such period would
otherwise end on a non-business day, it shall end on the next
business day, unless that day falls in the calendar month
succeeding that in which it would otherwise have ended, in which
case it shall end on the preceding business day Provided that, if
a period starts on the last numerically corresponding day in the
month in which that period ends, that period shall end on the
last business day in that later month (and references to "months"
shall be construed accordingly);
any "obligation" of any Person under this Agreement or any other
agreement or document shall be construed as a reference to an
obligation expressed to be assumed by or imposed on it under this
Agreement or, as the case may be, that other agreement or
document (and "due", "owing", "payable" and "receivable" shall be
similarly construed);
a "Person" includes any individual, company, corporation, firm,
partnership, joint venture, undertaking, association,
organisation, trust, state or Agency of a state (in each case,
whether or not having separate legal personality);
"Security" includes any mortgage, pledge, lien, hypothecation,
security interest, charge, encumbrance, assignment or trust
arrangement for the purpose of providing security or other
security agreement or arrangement having the effect of providing
security (including, without limitation, the deposit of monies or
property with a person with the primary intention of affording
such a person a right of set-off or lien and including without
limitation, any sale and lease back arrangement) (and "secured"
shall be construed accordingly);
"Tax(es)" includes any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed,
levied, collected, withheld or assessed (and "Taxation" shall be
construed accordingly);
"Tax on Overall Net Income" of a Person shall be construed as a
reference to Tax (other than Tax deducted or withheld from any
payment) imposed on that Person by the jurisdiction in which its
principal office (and/or, in the case of a Bank, its Facility
Office) is located by reference to (a) the net income, profits or
gains of that Person worldwide or (b) such of its net income,
profits or gains as arise in or relate to that jurisdiction;
the "winding-up" or "dissolution" or "administration" of a
company, or the appointment of an "administrative receiver", a
"receiver" or an "administrator" shall be construed so as to
include any equivalent or analogous proceedings or, as the case
may be, Person under the law of the jurisdiction in which such
company is incorporated or any jurisdiction in which such company
carries on business; and
"a time of day" is, unless otherwise stated, a reference to
London time.
1.3 Any reference in this Agreement to this Agreement or to
another document shall be construed as a reference to this
Agreement or that other document as the same may have been, or
may from time to time be, amended, restated, varied, supplemented
or novated.
1.4 "sterling" denote the lawful currency of the United Kingdom
of Great Britain and Northern Ireland.
1.5 Clause and Part headings are for ease of reference only.
1.6 A "subsidiary" is a reference to (a) a subsidiary as defined
in Section 736 of the Companies Act 1985 and (b) a subsidiary
undertaking as defined in Section 258 of the Companies Act 1985,
provided that an entity falling only within paragraph (b) shall
come within the definition of "subsidiary" only if it is the
Licenceholder or (otherwise) for the purposes of Clauses 23.5
(Restriction on Distributions), 23.6 (Restriction on Borrowings)
and 23.9 (Financial Ratios) and all accounts and other financial
information to be delivered hereunder.
1.7 For the purposes of this Agreement a company is a "wholly-
owned subsidiary" of another company if the first company has no
members except that other and that other's wholly-owned
subsidiaries or Persons acting on behalf of that other or its
wholly-owned subsidiaries.
1.8 For the purposes of this Agreement a company shall be
treated as being "controlled" by another company if that other
company is able to direct its affairs and/or controls the
composition of its board of directors.
1.9 Save where the context otherwise requires words importing
the singular number include the plural number and vice versa.
1.10 Adjusted Share Capital and Reserves, Borrowings,
Capitalisation, Net Debt, Interest Payable, Interest Receivable
and Subordinated Debt shall be interpreted in accordance with
generally accepted accounting principles.
PART 2
THE FACILITIES
2. The Facilities
2.1 Revolving Facility: The Banks grant to the Borrowers, upon
the terms and subject to the conditions hereof, a sterling
revolving credit facility in an aggregate amount of up to
100,000,000 pounds sterling whereby the Banks will, at the
request of a Borrower, make Revolving Advances to such Borrower
in sterling.
2.2 Participation in Revolving Facility: Each Bank will
participate in the Revolving Facility up to the amount of its
Revolving Commitment from time to time.
2.3 Term Facility: The Banks grant to the Company, upon the
terms and subject to the conditions hereof, a sterling term loan
facility in an aggregate amount of up to 460,000,000 pounds
sterling whereby the Banks will, at the request of the Company,
make Tranche A Term Advances up to an aggregate amount set out in
a side letter between, among others, the Original Lender and the
Company or, as the case may be, Tranche B Term Advances up to an
aggregate amount set out in a side letter between, among others,
the Original Lender and the Company, to the Company in sterling.
2.4 Participation in Term Facility: Each Bank will participate
in the Term Facility up to the amount of its Tranche A Term
Commitment and/or, as the case may be, its Tranche B Term
Commitment from time to time.
3. Term and Purpose of the Facilities
3.1 Term: Subject to the other provisions of this Agreement,
the Term Facility is available for drawing until and including
the Term Facility Termination Date and the Revolving Facility is
available for drawing prior to the Revolving Facility Termination
Date.
3.2 Purpose of Tranche A Term Facility: Each Utilisation under
the Tranche A Term Facility will be applied in or towards:-
(a) financing or refinancing Offer Costs; and/or
(b) the subscription by the Company in cash for shares in Bidco
(or the making by the Company of loans available to Bidco) the
proceeds of which will be used by Bidco for:
(i) financing or refinancing the consideration payable to Target
shareholders in respect of open market purchases of the Shares
the subject of the Offer; and/or
(ii) financing or refinancing the acquisition of those of the
Shares to be acquired by Bidco pursuant to the Offer; and/or
(iii) financing or refinancing the consideration payable
pursuant to the operation by Bidco of the procedures contained in
sections 428-430 of the Companies Act 1985 in respect of the
Shares the subject of the Offer; and/or
(iv) financing or refinancing consideration payable to the
Target share option holders pursuant to the Offer; and/or
(v) financing (directly or indirectly) any special dividend
payable by Target as referred to in the Offer.
3.3 Purpose of Tranche B Term Facility: Each Utilisation of a
Tranche B Term Advance will be applied in or towards financing or
refinancing the acquisition of the Preference Shares pursuant to
the Preference Share Offer.
3.4 Purpose of Revolving Facility: The Revolving Facility will
be available for:
(i) those purposes listed in Clause 3.2 up to a limit set forth
in a side letter of even date herewith; and/or
(ii) refinancing any indebtedness of Target or its subsidiaries
which is outstanding as at the date of First Utilisation; and/or
(iii) the working capital and general corporate purposes of any
member of the Group.
3.5 Agent and Arranger: Neither the Agent nor the Arranger need
check that the proceeds of any Utilisation are applied as
specified in this Clause 3.
4. Amount of the Facilities and Option to Utilise Overdraft
Facility
4.1 Amount: Notwithstanding any other provisions of this
Agreement, the aggregate of all Revolving Outstandings shall not
at any time exceed 100,000,000 pounds sterling and the aggregate
of all Term Outstandings shall not at any time exceed 460,000,000
pounds sterling.
4.2 Overdraft Facility: The Company may at any time elect that
part of the Revolving Facility be made available by way of an
overdraft facility and/or other ancillary facilities by (with the
agreement of the relevant Bank) designating (in a written notice
to the Agent) one or more Bank as being an Overdraft Bank for the
purposes hereof. Such designation shall specify the net limit of
each of the relevant facilities (being an amount not exceeding
the Revolving Commitment of the relevant Bank) and the Revolving
Commitment of any Overdraft Bank notify the Agent that the
designation has ceased to be applicable) be reduced by the amount
of such net limit.
5. Conditions Precedent
5.1 Conditions Precedent: No Term Utilisation Request or
Revolving Utilisation Request may be issued until the
Unconditional Date has occurred and until the Agent has confirmed
to the Company and to each Bank that it has received all of the
documents listed in the Second Schedule (Conditions Precedent),
in the form agreed before the date hereof or otherwise in the
form and substance reasonably satisfactory to it, which, in the
event that it has received such documents, the Agent agrees to do
promptly.
5.2 Acceding Borrower: The Company may request that the Target
or any other member of the Group incorporated in England and
Wales becomes a Borrower for the purposes of utilising the
Revolving Facility by delivering, or procuring the delivery to,
the Agent of an Accession Memorandum duly executed by the Company
and the Target or such other member of the Group (as the case may
be) together with the documents listed in the Tenth Schedule
(Documents to accompany Accession memorandum), in form and
substance reasonably satisfactory to the Agent.
5.3 Accession: Upon delivery of the documents referred to in
Clause 5.2 (Acceding Borrower), Target or, as the case may be,
the relevant other member of the Group shall, subject to the
terms and conditions of this Agreement, acquire all the rights
and assume all the obligations of a Borrower hereunder.
6. Rights and Obligations
6.1 Banks' Rights and Obligations: The rights and obligations
of each Bank hereunder are several.
6.2 Failure and Enforcement: The failure by a Bank to perform
its obligations hereunder shall not affect the obligations (i) of
any other Bank towards any Obligor or (ii) of any Obligor towards
any other party hereto nor shall any such other party be liable
for the failure by such Bank to perform its obligations
hereunder. Each Bank may, except as otherwise stated herein,
separately enforce its rights hereunder.
6.3 Borrowers' Rights and Obligations: The obligations of the
Borrowers hereunder are several.
PART 3
CANCELLATION AND PREPAYMENT
7. Cancellation
7.1 Voluntary: (i) The Company may at any time and from time
to time prior to the Revolving Facility Termination Date cancel
without penalty the whole or any part of the Revolving
Commitments of all the Banks by giving the Agent not less than
three business days' prior written notice to that effect
specifying the date and amount of the proposed cancellation
Provided that:
(a) any partial cancellation shall be a minimum amount of
5,000,000 pounds sterling and an integral multiple of 1,000,000
pounds sterling and shall reduce the Revolving Commitment of each
Bank rateably;
(b) no such cancellation shall become effective if as a result
thereof the Revolving Commitments would be reduced to an amount
which is less than the Revolving Outstandings; and
(c) any such cancellation shall reduce a pro rata proportion of
the limit of any Overdraft Facility.
(ii) The Company may at any time and from time to time prior to
the Term Facility Termination Date cancel without penalty the
whole or any part of the Tranche A Term Commitments and the
Tranche B Term Commitments of all the Banks by giving the Agent
not less than two business days' prior written notice to that
effect specifying the date and amount of the proposed
cancellation. Provided that any partial cancellation shall be in
a minimum amount of 5,000,000 pounds sterling and an integral
multiple of 1,000,000 pounds sterling and shall reduce the
Tranche A Term Commitment and/or, as the case may be, the Tranche
B Term Commitment of each Bank rateably.
7.2 Pursuant to Increased Costs: If the amount of any payment
to be made to or for the account of any Bank by an Obligor is, or
will be, increased under Clause 16.1 (Gross Up) or any Bank
claims indemnification from the Company under Clause 16.2 (Tax
Indemnity) or Clause 17 (Increased Costs) then the Company may,
at any time thereafter and by not less than one business days'
prior notice to the Agent cancel the Commitments of such Bank
whereupon such Bank shall cease to be obliged to make Advances
hereunder and its Commitment shall be reduced to zero (and if it
is an Overdraft Bank the net limit under the relevant Overdraft
Facility shall be reduced to zero).
7.3 Prepayment following Cancellation: If the Company gives a
notice of cancellation pursuant to Clause 7.2 (Pursuant to
Increased Costs), it shall at the same time and in the same
notice give notice to the Agent of the relevant Borrower's
intention to prepay (without penalty but subject to Clause 30.4
(Break Costs)) all outstanding Advances made by the relevant Bank
together with accrued interest thereon upon such date as may be
specified in such notice, which notice shall be irrevocable and
shall oblige the relevant Borrower to make the prepayments in
question without penalty on the date specified therein with all
other sums due from it under this Agreement in respect of the
Advances in question.
7.4 Notice Irrevocable: Each notice of cancellation given
pursuant to this Clause 7 shall be irrevocable and shall specify
the date upon which such cancellation is to take effect.
7.5 Bank's Cessation: If at any time:
(i) the Commitments of any Bank are cancelled or reduced to
zero; and
(ii) all Indebtedness owed to such Bank by any Obligor hereunder
has been finally satisfied in full; and
(iii) such Bank is under no further actual or contingent
obligation hereunder,
then such Bank shall (without prejudice to its existing rights
hereunder) cease to be a party hereto and a Bank for the purposes
hereof.
7.6 Cancellation of Term Facility: At close of business on the
Term Facility Termination Date, the Tranche A Term Commitment of
each Bank and the Tranche B Term Commitment of each Bank shall,
in each case, be (if it has not already been) cancelled and
reduced to zero.
7.7 Cancellation of Revolving Facility: At close of business on
the Revolving Facility Termination Date, the Revolving Commitment
of each Bank shall be (if it has not already been) cancelled and
reduced to zero.
7.8 Cancellation on lapse of Offers: If the Offer lapses or is
withdrawn the Commitments shall be automatically cancelled and
reduced to zero. If the Preference Share Offer lapses or is
withdrawn, the Tranche B Term Commitments shall be automatically
cancelled and reduced to zero.
8. Prepayment
8.1 Voluntary Prepayment: The Borrowers may prepay without
premium or penalty any Advance or any party of any Advance which
is a minimum of 5,000,000 pounds sterling and an integral
multiple of 1,000,000 pounds sterling, without penalty but
subject to Clause 30.4 (Break Costs), by giving the Agent not
less than three business days' prior written notice specifying
the date and amount of the proposed prepayment.
8.2 Notice Irrevocable: Each notice of prepayment given
pursuant to this Clause 8 shall be irrevocable and shall oblige
the relevant Borrower to make the prepayment in question on the
date specified therein together with all accrued interest on the
amount prepaid and any other sums then due from it under this
Agreement in respect of the Advances in question.
8.3 Re-borrowing: No Borrower may re-borrow any Tranche A Term
Advance or, as the case may be, any Tranche B Term Advance repaid
or prepaid. The Borrowers may, subject to the provisions of this
Agreement, re-borrow any Revolving Advance repaid or prepaid.
PART 4
UTILISATION PROCEDURES
9. Utilisation Requests
9.1 Delivery of Requests: Subject to the provisions hereof, a
Borrower (or, in the case of the Term Facility, the Company) may
utilise:
(i) the Revolving Facility by delivering a duly completed
Revolving Utilisation Request, in the form set out in Part A or
Part B of the Fifth Schedule (Form of Revolving Utilisation
Request) (as appropriate); and
(ii) the Term Facility by delivering a duly completed Term
Utilisation Request, in each case, in the form set out in Part B
of the Fifth Schedule (Form of Term Utilisation Request),
in each case by telefax or letter to the Agent by no later than
the specified time.
9.2 Revolving Utilisation Requests: Each Revolving Utilisation
Request delivered pursuant to Clause 9.1 (Delivery of Requests)
shall be irrevocable and shall specify:
(i) the proposed Utilisation Date, which shall be a business day
prior to the Final Maturity Date;
(ii) the Requested Amount (to be determined in accordance with
Clause 10 (Amount of Utilisation));
(iii) subject to Clause 9.4 (Selection of Periods) the Term
in question (being a period of one, two, three or six months or
such other duration as the relevant Borrower and the Banks may
agree or, being less than one month, as ends on the Final
Maturity Date) which will begin on the proposed Utilisation Date
and end on a business day which is or precedes the Final Maturity
Date;
(iv) the Repayment Date; and
(v) the account to which the proceeds of the proposed
Utilisation are to be paid.
9.3 Term Utilisation Requests: Each Term Utilisation Request
delivered pursuant to Clause 9.1 (Delivery of Requests) shall be
irrevocable and shall specify:
(i) the proposed Utilisation Date, which shall be a business day
on or prior to the Term Facility Termination Date;
(ii) whether the requested Term Advance is to be a Tranche A Term
Advance or a Tranche B Term Advance;
(iii) the Requested Amount (to be determined in accordance
with Clause 10 (Amount of Utilisation));
(iv) subject to Clause 9.4 (Selection of Periods) the first
Interest Period relating to the Advance in question, (being a
period of one, two, three or six months or such other duration as
the Company and the Banks may agree or as may end on the last day
of an Interest Period in Respect of Another Advance or, being
less than one month, as ends on the Final Maturity Date), which
will begin on the proposed Utilisation Date and end on a business
day which is or precedes the Final Maturity Date; and
(v) the account to which the proceeds of the proposed
Utilisation are to be paid.
9.4 Selection of Periods: The Borrowers shall during the period
ending four months after the date hereof select one month
Interest Periods and Terms ending on the same day or such other
periods ending on the same day as the Agent and the Company agree
as being necessary to permit the transfer of participations to be
effected following underwriting and/or syndication and, in any
event, select Interest Periods in respect of Term Advances
pursuant to Clauses 9.3 (Term Utilisation Requests) and 13
(Interest Periods) so that at no time shall there be more than
ten Tranche A Term Advances and Tranche B Term Advances
outstanding with Interest Periods ending on a different dates.
9.5 Specified Time: There is set out in the Fourth Schedule
(Timetable) a timetable of certain of the procedures provided for
in this Agreement. For the purposes of construing Parts 4 and 5,
any reference to a specified time shall be construed as a
referenced to the relevant time set forth in such timetable.
10. Amount of Utilisation: The Requested Amount to be specified
in a Utilisation Request delivered pursuant to Clause 9.1 shall
be an amount which is equal to or less than the Available
Revolving Facility, the Available Tranche A Term Facility or, as
the case may be, the Available Tranche B Term Facility and (if
less) is a minimum of 10,000,000 pounds and an integral multiple of
1,000,000 pounds.
11. Allocation Amongst Banks
11.1 Allocation of Revolving Advances: If and whenever, on the
occasion of a Utilisation, the Banks are required to make
Revolving Advances, the aggregate principal amount of the
Revolving Advances to be so made shall be allocated to, and
apportioned among, the Banks rateably to their respective
Available Revolving Commitments at such time.
11.2 Allocation of Tranche A Term Advances: If and whenever, on
the occasion of a Utilisation, the Banks are required to make
Tranche A Term Advances, the aggregate principal amount of the
Tranche A Term Advances to be so made shall be allocated to, and
apportioned among, the Banks rateably to their respective Tranche
A Available Term Commitments at such time.
11.3 Allocation of Tranche B Term Advances: If and whenever, on
the occasion of a Utilisation, the Banks are required to make
Tranche B Term Advances, the aggregate principal amount of the
Tranche B Term Advances to be so made shall be allocated to, and
apportioned among, the Banks rateably to their respective Tranche
B Available Term Commitments at such time.
11.4 Obligation to Lend: Each Bank shall, subject to the terms
hereof, be obliged, through its Facility Office, to make an
Advance on the Proposed Utilisation Date in an aggregate
principal amount equal to the amount allocated to it pursuant to
this Clause 11.
11.5 Agent's Notification: The Agent shall not later than the
specified time notify each Bank of the aggregate principal amount
allocated to it pursuant to this Clause 11.
PART 5
THE ADVANCES
12. Making of Advances
12.1 Making of Advances: If the Agent notifies any Bank in
accordance with Clause 11.5 (Agent's Notification") that it is to
make any Advance, and, subject to Clauses 12.2 (Certain Funds)
and 24.4 (Clean-up Period), if on the proposed Utilisation Date
relating to such an Advance:
(i) the representations deemed repeated pursuant to Clause 21.5
(Repetition) are, except in the case of a Rollover Utilisation
and except to any extent waived in writing in accordance with
Clause 40 (Remedies, Waives and Amendments), true and correct in
all material respects; and
(ii) no Event of Default or, (except in the case of a Rollover
Utilisation) Potential Event of Default has occurred and is
continuing, other than any waived in writing in accordance with
Clause 40 (Remedies, Waives and Amendments),
then, on such Utilisation Date, such Bank shall make such Advance
through its Facility Office to the relevant Borrower.
12.2 Certain Funds: Subject to Clause 24.4 (Clean-up Period), to
ensure that Bidco has resources available to fulfil its
obligations under the Offer the Banks agree that in relation to
(a) any Tranche A Term Advance and any Tranche B Term Advance
requested during the Certain Funds Period for the purposes
specified in Clause 3.2 (Purpose of Tranche A Term Facility) or
3.3 (Purpose of Tranche B Term Facility) and (b) any Revolving
Advance requested during the Certain Funds Period for the purpose
specified in Clause 3.4(i) (Purpose of Revolving Facility):
(i) paragraph (i) of Clause 12.1 (Making of Advances) shall only
be applicable to the representations in Clause 21.1.1 (Status),
21.1.2 (Powers), 21.1.3 (Authorisations and Consents), 21.1.4
(Non-Violation etc.) and 21.1.5 (Obligations Binding); and
(ii) paragraph (ii) of Clause 12.1 (Making of Advances) shall
only be applicable to the extent that an Event of Default has
occurred which is continuing under Clauses 24.1.6 (Insolvency),
24.1.7 (Moratorium), 24.1.8 (Administrator) or 24.1.10 (Winding-
up), in respect of any Obligor.
13. Interest Periods
13.1 Periods: The period for which a Term Advance is outstanding
shall be divided into successive Interest Periods each of which
(other than the first) shall start on the last day of the
preceding such period.
13.2 Duration: The direction of each Interest Period shall, save
as otherwise provided herein, be one, two, three or six months
(or such other duration as the relevant Borrower, the Banks and
the Agent any agree or (subject to Clause 9.4 (Selection of
Periods)) as may end on the day of an Interest Period in respect
of another Advance or, being less than one month, as ends on the
Final Maturity Date) in each case as the relevant Borrower may by
notice to the Agent by no later than the specified time select
Provided that if the relevant Borrower fails to give such notice
of its selection in relation to an Interest Period, the duration
of that Interest Period shall be three months, and that if such
Interest Period would otherwise fall after the Final Maturity
Date it shall be of such direction as shall end on the Final
Maturity Date.
14. Interest
14.1 On Term Advances: On the last day of each Interest Period
(and if such Interest Period is of more than six months duration
on the expiry of each period of six months during such Interest
Period) the Company shall pay accrued interest on the Term
Advance to which such Interest Period relates.
14.2 On Revolving Advances: On the Repayment Date (and on the
expiry of each period of six months during the Term of any
Revolving Advance) relating to each Revolving Advance the
relevant Borrower shall pay accrued interest on the Revolving
Advance.
14.3 Rate: The rate of interest applicable to an Advance made by
a Bank from time to time during an Interest Period relating to
such Advance or, as the case may be, the Term of such Advance
shall, subject to Clause 20 (Market Disruption), be the rate per
annum determined by the Agent to be the sum of:
(i) LIBOR for such Interest Period or, as the case may be, Term;
(ii) the applicable Margin; and
(iii) the Associated Costs Rate applicable thereto.
14.4 Notification of Rates: The Agent shall promptly notify the
relevant Borrower and the Banks of each determination of LIBOR
and Associated Costs Rate made by it pursuant to Clause 14.3
(Rate) and of any change to the Margin from time to time.
15. Repayment
15.1 Repayment of Revolving Advances: The relevant Borrower
shall repay each Revolving Advance in full on the Repayment Date
relating thereto. Any amount so repaid shall remain available
for reborrowing on the terms and conditions of this Agreement.
15.2 Repayment of Term Advances: The Company shall repay each
Term Advance in full on the Final Maturity Date.
15.3 Repayment and Prepayment: No Borrower shall prepay or repay
all or any part of any Advance except at the times and in the
manner expressly provided herein.
PART 6
CHANGE IN CIRCUMSTANCES
16. Taxes
16.1 Gross-up: Each payment to be made by an Obligor to any
Person hereunder shall be made free and clear of and without
deduction for or on account of United Kingdom Tax unless such
Obligor is required by law to make such a payment subject to the
deduction or withholding of such Tax, in which case the sum
payable by such Obligor in respect of which such deduction or
withholding is required to be made shall (subject as provided in
this Clause) be increased to the extent necessary to ensure that,
after the making of such deduction or withholding, such Person
receives and retains (free from any liability in respect of any
such deduction or withholding) a net sum equal to the sum which
it would have received and so retained had no such deduction or
withholding been made or required to be made.
16.2 Tax Indemnity: Without prejudice to the provisions of
Clause 16.1 (Gross-up), if any Bank, or the Agent on such Bank's
behalf, is required by law to make any payment on account of
United Kingdom Tax (other than Tax on Overall Net Income) or
otherwise on or in relation to any sum received or receivable by
such Bank or the Agent on such Bank's behalf hereunder, or any
liability (other than Tax on Overall Net Income) in respect of
any such payment is imposed, levied or assessed against such Bank
or the Agent on such Bank's behalf, the Company will (subject as
provided in this Clause), on demand by the Agent, indemnify such
Bank against such payment or liability together with any
interest, penalties and expenses payable or incurred in
connection therewith.
16.3 Tax Credits: If any Obligor makes a payment pursuant to
Clause 16.1 (Gross-up) or 16.2 (Tax Indemnity) for the account of
any Person and such Person determines in its sole discretion that
it has received or been granted a credit against or relief or
remission for, or repayment of, any tax paid or payable by it in
respect of or calculated with reference to the deduction or
withholding under Clause 16.1 (Gross-up) or the payment or
liability under Clause 16.2 (Tax Indemnity) giving rise to such
payment, such Person shall, to the extent that it can do so
without prejudice to the retention of the amount of such credit,
relief, remission or repayment, pay to such Obligor such amount
as such Person shall have determined in its absolute discretion
to be attributable to such deduction or withholding under Clause
16.1 (Gross-up) or the payment or liability under Clause 16.2
(Tax Indemnity) and which will leave such Person (after such
payment) in no better or worse position that it would have been
in if such Obligor had not been required to make such deduction
or withholding under Clause 16.1 (Gross-up) or there had been no
payment or liability under Clause 16.2 (Tax Indemnity) Nothing
herein contained shall interfere with the right of a Person to
arrange its tax affairs in whatever manner it thinks fit nor
oblige any Person to disclose any information relating to its tax
affairs or any computations in respect thereof.
16.4 Tax Exceptions: If any Bank:
(i) is not or ceases to be a Qualifying Lender; and
(ii) as a result an Obligor is required to deduct or withhold
United Kingdom income tax in respect of payments of interest to
be made by such Obligor to that Bank under this Agreement or such
Bank is required to make any payment on account of Tax as
mentioned in Clause 16.2 (Tax Indemnity),
then such Obligor shall not be liable to pay to such Bank under
Clause 16.1 (Gross-up) or 16.2 (Tax Indemnity) any amount in
excess of the amount it would have been obliged to pay if such
Bank had not ceased to be a Qualifying Lender Provided that this
Clause 16.4 shall not apply and such Obligor shall be obliged to
company with its obligations under Clauses 16.1 (Gross-up) and
16.1 (Tax Indemnity) if after the date hereof;
(a) there shall have been any change in, or in the
interpretation or application of, any relevant law or the
practice of the United Kingdom Inland Revenue and as a result
thereof the Bank ceases to be a Qualifying Lender; or
(b) the Bank has transferred its Facility Office in respect of
the Facility outside the United Kingdom or has become a Bank
hereunder with a Facility Office in respect of the Facility, in
each case, with the consent of the Company pursuant to Clause 19
(Mitigation).
16.5 Tax Certificate: A Bank intending to make claim pursuant to
Clause 16.2 (Tax Indemnity) shall, promptly after such Bank
becomes ware of the circumstances giving rise to such claim,
deliver to the Company through the Agent a certificate to that
effect specifying the amount of such claim and setting out in
reasonable detail the basis of such claim, provided that nothing
shall require such Bank to disclose any confidential information
relating to the organisation of its affairs.
16.6 Tax Representations: Each Bank represents to the Company
and the Agent that on the date it becomes a party hereto it is a
Qualifying Lender. If at any time after such date any such Bank
is aware that it is, or will become, unable to make that
representation (for whatever reason), it shall promptly notify
the Company and the Agent.
17.1 Increased Costs: If by reason of the introduction after the
date hereof of any, or any change after the date hereof in any,
law, rule or regulation or in its interpretation or
administration and/or compliance with any future request from or
requirement of any central bank or other fiscal, monetary or
other authority (whether or not having the force of law but if
not having the force of law only if compliance is in accordance
with the general practice of Persons to whom it is intended to
apply);
(i) a Bank or any holding company of such Bank incurs a costs
(including the cost of complying with any reserve, special
deposit, liquidity, cash or other requirement) as a result of
such Bank having entered into and/or performing its obligations
under this Agreement and/or assuming or maintaining its
Commitments (if any) under this Agreement and/or its having
outstanding to it one or more Advances or unpaid sums hereunder;
or
(ii) a Bank or any holding company of such Bank is unable to
obtain the rate of return on its capital which it would have been
able to obtain but for such Bank entering into or assuming or
maintaining is Commitment or performing its obligations under
this Agreement; or
(iii) there is any increase in the cost to a Bank or any
holding company of such Bank of funding or maintaining all or any
of the advances comprised in a class of advances formed by or
including the Advances or to be made by such Bank hereunder,
then the Company shall fro time to time within five business days
of demand by the Agent, pay to the Agent for the account of that
Bank amounts equal to, as the case may be:
(a) such cost or
(b) such reduction in the rate of return of capital; or
(c) such increased cost (or such proportion of such increased
cost as is attributable to its funding or maintaining advances
hereunder).
17.2 Increased Costs Certificate: A Bank intending to make a
claim pursuant to Clause 17.1 (Increased Costs) shall, promptly
after such Bank becomes aware of the circumstances giving rise to
such claim, deliver to the Company through the Agent a
certificate to that effect specifying the event by reason of
which it is entitled to make such a claim and the amount of such
claim and setting out in reasonable detail the basis of such
claim, provided that nothing shall require such Bank to disclose
any confidential information in relation to the organisation of
its affairs.
17.3 Increased Costs Exceptions: Notwithstanding the foregoing
provisions of Clause 17, no Bank shall be entitled to make any
claim under this Clause 17, in respect of:
(i) any cost, reduction or increased cost as is referred to in
Clause 17.1 (Increased Costs) to the extent that the same is
intended to be compensated for by the Associated Costs Rate; or
(ii) any matter in respect of which the Bank is entitled to be
compensated under any other provision hereof (or would have been
so entitled but for the operation of Clause 16.4 (Tax
Exceptions)); or
(iii) any cost, reduction or increased cost which results
from the implementation, as contemplated on the date of this
Agreement, of the matters set out in the July 1988 report of the
Basle Committee on Banking Regulations and Supervisory Practices
entitled "International Convergence of Capital Measurement and
Capital Standards", the Directive of the Council of the European
Communities on a Solvency Ratio for Credit Institutions
(89/647/EEC of 18 December 1989) and/or the Directive of the
Council of the European Communities on Own Funds of Credit
Institutions (89/299/EEC of 17 April 1989) or any other Directive
in force at the date hereof, unless it results from any change
after the date of this Agreement in, or in the interpretation or
applicable of, such matters as contemplated on the signing of
this Agreement; or
(iv) any cost, reduction or increased cost attributable to such
Bank, or its holding company, having entered into a commitment to
a lend to a third party which is at the time of such commitment
in breach of the relevant law, rule, regulation, request or
requirement; or
(v) any cost which is, or is attributable to, any Tax on Overall
Net Income of a Bank or of any of its holding companies (or Tax
on Overall Net Income of a division or branch of the Bank or any
of its holding companies).
18. Illegality
If at any time it is unlawful, or contrary to any request from or
requirement of any fiscal, monetary or other authority for a Bank
to make, fund or allow to remain outstanding all or any of the
Advances made or to be made by it hereunder then that Bank shall,
promptly after becoming aware of the same, deliver to the Company
through the Agent a certificate to that effect and, unless such
illegality is avoided in accordance with Clause 19 (Mitigation):
(i) such Bank shall not thereafter be obliged to make Advances
and the amount of its Commitments shall be reduced to zero;
and/or
(ii) each Borrower may, and if the Agent, on behalf of such Bank,
so requires, shall on such date as such Bank shall have specified
(being the latest date by which the relevant law requires that
the same be repaid) repay the outstanding Advances made by such
Bank to it together with accrued interest thereon.
19. Mitigation
If, in respect of any Bank circumstances arise which would or
would upon the giving of notice result in:
(a) the reduction of its Commitment to zero pursuant to Clause
18 (Illegality) pr or
(b) an increase in the amount of any payment to be made to it
for its account pursuant to Clause 16.1 (Gross-up); or
(c) a claim for indemnification pursuant to Clause 16.2 (Tax
Indemnity) or Clause 17 (Increased Costs),
then, without in any way limiting, reducing or otherwise
qualifying the rights of such Bank or the obligation of any
Obligor under any of the Clauses referred to above:
(i) such Bank shall promptly upon becoming aware of the same
notify the Agent thereof and, in consultation with the Agent and
the Company and to the extent that it can do so without prejudice
to its own position, take reasonable steps to mitigate the
effects of such circumstances including the transfer (with the
prior approval of the Company) of its Facility Office or the
transfer of its rights and obligations hereunder to another
financial institution acceptable to the Company and willing to
participate in the Facilities Provided that such Bank shall be
under no obligation to take any such action if, in the opinion of
such Bank, to do so would or might have any adverse effect upon
its business, operations or financial condition; and
(ii) the Agent and the Banks shall, upon request of the Company,
enter into negotiations in good faith with the Company in order
to consider what action, if any, can be taken with a view to re-
arranging the Facilities on a basis which will mitigate the
effects of such circumstances,
Provided that in no event shall any Bank be required under this
Clause 19 to attempt to find a way to mitigate the effects of any
such circumstances for a period in excess of 30 days from the
date of its notice to the Agent pursuant to paragraph (i) above
and nor shall the Banks or the Agent be required to continue
negotiations under paragraph (ii) above for a period in excess of
30 days from the date of the Company's request under paragraph
(ii) above.
20. Market Disruption
20.1 Market Disruption: If, in relation to any Utilisation
Request or Interest Period, the Agent is unable (subject to
Clause 38.2 (No Quotations)) to make any determination of LIBOR
required to be made by it pursuant to this Agreement by reason of
the failure of the Reference Banks to supply the necessary
quotations, then the Agent shall prompt notify the Company and
the Banks of such event and any relevant Utilisation shall
proceed and the amount of interest payable in respect of any such
Advance during the relevant term of such Advance or the relevant
Interest Period shall be determined in accordance with the
following provisions of this Clause 20 (Market Disruption).
20.2 Negotiation: The Agent (on behalf of and after consultation
with the Banks) shall promptly after giving the notice referred
to in Clause 20.1 (Market Disruption), negotiate in good faith
with the Company with a view to agreeing an alternative basis for
calculating the interest payable on the relevant Advance for the
relevant period.
20.3 Alternative Basis: If such an alternative basis as is
mentioned in Clause 20.2 (Negotiation) is so agreed in writing by
the Agent (on behalf of and with the consent of an Instructing
Group) and the Company, it shall take effect in accordance with
its terms.
20.4 Cost of Funds: If such alternative basis is not agreed
pursuant to Clause 30.2 (Negotiation), any such Advance as is
mentioned in Clause 20.1 (Market Disruption) shall bear interest
from time to time at the rate per annum determined by the Agent
to be the sum of:
(i) the weighted average cost (including the Associated Costs
Rate) to the Banks in that Instructing Group (each such Bank's
cost being certified by it to the Company with a copy to the
Agent and expressed as a rate per annum), of funding such Advance
for the relevant period from whatever source each such Bank may
reasonably select; and
(ii) the applicable Margin.
20.5 Consultation: The agent (on behalf of all the Banks) agrees
to consult with the Company at least once every 30 days after the
occurrence and during the continuance of the circumstances
specified in the foregoing provisions of this Clause 20 with a
view to reverting to the normal provisions for the determination
of the rates of interest applicable to any Advance hereunder.
PART 7
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
21. Representations
21.1 Obligors: Each Obligor represents as follows:
21.1.1 Status: It is a company duly incorporated under the
Companies Act 1985 and has the power and authority to own its
Assets and to conduct the business which it conducts and/or
proposes to conduct;
21.1.2 Powers: It has the power to enter into, exercise its
rights and perform and comply with its obligations under the
Finance Documents to which it is a party;
21.1.3 Authorisation and Consents: All action, conditions and
things required by the laws of England or the terms of any
License or Licence Undertaking to be taken, fulfilled and done
(including the obtaining of any necessary Consents, the making of
registrations and the like) to which it is a party in order:
(i) to enable it lawfully to enter into, exercise its rights and
perform and comply with its obligations under the Finance
Documents to which it is a party;
(ii) to ensure that those obligations are valid, legally binding
and enforceable;
(iii) to ensure that those obligations rank and will at all
times rank in accordance with Clause 23.1 (Ranking of
Obligations); and
(iv) to make each Finance Document admissible in evidence in the
courts of England,
have been taken, fulfilled and done;
21.1.4 Non-Violation etc.: Its entry into, exercise of its
rights and/or performance of or compliance with its obligations
under the Finance Documents do not and will not violate, or
exceed any borrowing or other power or restriction granted or
imposed by:
(i) any law to which it is subject or any Licence of Licence
Undertaking; or
(ii) its Memorandum or Articles of Association or result in the
existence of, or oblige it to create, any Security over its
Assets other than under the Finance Documents themselves; or
(iv) (to an extent or in a manner which has or is likely to have
a Material Adverse Effect) any agreement to which that Obligor or
any of its subsidiaries is a party or by which any of its or
their assets is bound (other than a financing agreement to which
the Target or any subsidiary of the Target is a party and the
Indebtedness in respect of which is refinanced prior to the
Clean-Up Date.
21.1.5 Obligations Binding: Its obligations under the Finance
Documents are valid, legally binding and enforceable.
21.2 Company: The Company represents as follows:
21.2.1 No Default: No Event of Default or Potential Event of
Default has occurred and is continuing which has not been
remedies or waived;
21.2.2 Existing Security: No Security exists on or over any
member of the Group's Asses except as permitted by Clause 23.2
(Negative Pledge);
21.2.3 Litigation: So far as it is aware, no litigation,
arbitration or administrative proceeding is current:
(i) to restrain the entry into, exercise of any of its rights
under an/or performance or enforcement of or compliance with any
of its obligations under the Finance Documents; or
(ii) which has or is likely to have a Material Adverse Effect;
21.2.4 Winding-up: No meeting has been convened for the
winding-up or administration of the Company or Bidco, no such
step is intended by it and, so far as it is aware, no petition,
application or the like is outstanding for the winding-up or
administration of it or Bidco;
21.2.5 Full Disclosure: (Save for any information contained
in any Information Memorandum) the written material factual
information supplied by any member of the Group (whilst a member
of the Group) to the Arranger, the Agent or the Banks in
connection herewith whether before or after the date hereof is
true and accurate in all material respects at the time of being
supplied and it is not aware of any material facts or
circumstances that have not been disclosed to the Arranger, the
Agent and the Banks the failure to disclose which would result in
such information being misleading in any material respect;
21.2.6 Additional Financial Information: Any projections
delivered to the Agent prior to the date hereof and initialed by
the Company and the Agent for the purpose of identification were
arrived at after careful consideration and were based on
reasonable assumptions;
21.2.7 Information Memorandum: (This representation and
warranty is given only upon issue and approval by the Company of
an Information Memorandum.) All material factual information
contained in the Information Memorandum was true (or, in the case
of information provided by any Person other than the Company or
its advisors, was true to the best of its knowledge and belief)
in all material respects at the date (if any) ascribed thereto in
the Information Memorandum or (if none) at the date of the
relevant component of the Information Memorandum. Any and all
expressions of opinion or intention and any forecasts and
projections contained in the Information Memorandum were arrived
at after careful consideration and were based on reasonable
assumptions, and the Information Memorandum, taken as a whole, as
of its date was not misleading in any material respects and did
not omit to disclose any matter failure to disclose which would
result in any material information contained in the Information
Memorandum being misleading in any material respect in the
context of this Agreement;
21.2.8 Public Information: The Press Release and Offer
Document and any other public documents relating to the Offer and
the Preference Share Offer furnished to the Agent, contain all
the material terms of the Offer and the Preference Share Offer
and the Offer Document reflects the terms of the Press Release in
all material aspects; and
21.2.9 Ownership of Bidco: Bidco is a wholly-owned subsidiary
of the Company.
21.3 Clean-up Representations: On the Clean-up Date the Company
represents as follows:
21.3.1 Default: Neither the Company nor any Material
Subsidiary is in breach of or in default under any agreement to
which it is party or which is binding on it or any of its Assets
to an extent or in a manner which has or is likely to have a
Material Averse Effect;
21.3.2 Environmental Matters:
(i) It and the Material Subsidiaries have obtained any and all
material requisite Environmental Licences required for the
carrying on of its business as currently conducted and are in
compliance in all material respects with (A) the terms and
conditions of such Environmental Licences and (B) all other
applicable Environmental Law which in each case, if not obtained
or complied with, would have a Material Adverse Effect, and there
are to its knowledge no circumstances which may prevent or
interfere with such compliance in the future;
(ii) So far as it is aware (after due enquiry) no Dangerous
Substance has been used, disposed of, generated, stored,
transported, dumped, released, deposited, buried or emitted at,
on, from or under any site or premises (whether or not owned,
leased, occupied or controlled by it or any of its subsidiaries
and including any offsite waste management or disposal location
utilised by it or any such subsidiary) in circumstances where
this would be likely to result in the imposition of a liability
on it which would have a Material Adverse Effect; and
(iii) So far as it is aware (after due enquiry) there is no
Environmental Claim (whether in respect of any site previously or
currently owned or occupied by any member of the Group or
otherwise) pending or threatened, and there are no past or
present acts, omissions, events or circumstances that would be
likely to form the basis of any Environmental Claim (whether in
respect of any site previously or currently owned or occupied by
any member of the Group or otherwise), against it which in each
case is reasonably likely to be determined against it and which
if so decided would have a Material Adverse Effect;
21.4 No Commitment: The Company further represents at the first
Utilisation Date that save as arises under the Transaction
Documents and/or in consequence of or, in connection with, the
Offer or the Preference Share Offer and save also for Offer
Costs, neither the Company nor Bidco has material commitments or
Indebtedness;
21.5 Repetition: Subject to Clause 12.2 (Certain Funds), each of
the representations in Clauses 21.1 (Obligors), 21.2 (Company)
and 21.3 (Clean-up Representations) shall (after first being
made) be deemed to be repeated on the date on which each
Utilisation Request is delivered hereunder, on each Utilisation
Date and the first date of each Interest Period by reference to
the facts and circumstances then existing Provided that:
(a) the representation set out in Clause 21.2.7 (information
Memorandum) shall be made only on the date of issue and approval
by the Company of any Information Memorandum; and
(b) the representations and warranties set out in Clauses 21.2.1
(No Default), 21.2.3 (Litigation), 21.2.5 (Full Disclosure)
insofar as it applied to information supplied prior to the date
hereof and 21.2.8 (Public Information) shall not be repeated
after the first Utilisation Date.
21.6 Qualifications to Representations: The representations in
Clauses 21.1.3 (Authorisation and Consents) and 21.1.5
(Obligations Binding) shall (where applicable) be subject, as to
matters of law only, to the qualifications that enforcement may
be limited by laws of general application relating to or
affecting the rights of creditors and general principles of
equity that the undertakings and indemnities given by the Company
in Clause 32.3 (Stamp Taxes) may be void under Section 117 of the
Stamp Act 1891 and that interest provided for under Clause 30
(Default Interest and Indemnity) may not be recoverable if it
amounts to a penalty.
22. Information
The Company undertakes that, so long as any sum remains to be
lent or remains payable under this Agreement:
22.1 Preparation of Accounts: It will ensure that all accounts
to be delivered by it under this Agreement are prepared and
audited (in the case of its annual accounts) in accordance with
the Companies Act 1985 and with accounting principles, standard
and practices generally accepted in the United Kingdom at the
date hereof (and which are consistent with those applied in the
preparation of the Original Financial Statements) subject to any
variations thereto which are not material or, if material, have
been agreed tin writing by an Instructing Group.
22.2 Audited/Annual Accounts. To the extent permitted by law or
generally accepted accounting principles, as soon as available
and in any event within 120 days after the end of each of its
financial years (beginning with the current one), it will deliver
to the Agent enough copies for the Banks of its annual report and
audited accounts (both consolidated and unconsolidated) as at the
end of and for that financial year, together with copies of the
related directors' and auditors' reports.
22.3 Semi-Annual and Quarterly Information. As soon as available
and in any event within 60 days after the end of each half year
and within 45 days after the end of each quarter (other than a
quarter ending in December for which the period shall be extended
to 90 days after the end of that quarter) of each of its
financial years (beginning with the first such period to end
after the Unconditional Date), it will deliver to the Agent
enough copies for the Banks of its unaudited accounts (both
consolidated and unconsolidated) as at the end of and for the
relevant half year and quarter.
22.4 Regulated Accounts: At the same time as delivered to the
Director General pursuant to Condition 2 of Part II of the
Licence, it will deliver to the Agent enough copies for the Banks
of the accounting statements delivered to the Director General.
22.5 Information to Creditors: At the same time as sent to its
creditors generally, it will deliver to the Agent enough copies
for the Banks of Any circular, document or other written
information sent to its creditors as such.
22.6 Events of Default: It will notify the Agent of the
occurrence of any Event of Default or any Potential Event of
Default (and of any action taken or proposed to be taken to
remedy it) promptly after becoming aware of it.
22.7 Compliance with Financial Ratios: With each set of accounts
delivered by it under Clause 22.2 (Audited/Annual Accounts) and
22.3 (Semi-Annual and Quarterly Information), the Company will
deliver to the Agent a certificate signed by a director of the
Company.
22.7.1 confirming compliance with Clause 23.9 (Financial
Ratios) as at the end of the Relevant Period; and
22.7.2 setting out in reasonable detail and in a form
satisfactory to the Agent the computations necessary to
demonstrate such compliance.
22.8 Other Information: It will deliver to the Agent for
distribution to the Banks such other information relating to the
Group's business and financial condition as the Agent (or any
Bank through the Agent) may from time to time reasonably request.
22.9 Change in Basis: If, at any time after the date hereof, any
material changes are made to generally accepted accounting
principles (the "Existing Basis") then the Company shall notify
the Agent of such change and, in the absence of any agreement
between the Company and the Agent (acting on the instructions of
an Instructing Group) to the contrary, the Company shall ensure
that the auditors for the time being of the Company provide a
description of such change and the adjustments which would be
required to be made to the financial statements so that such
financial statements reflect the Existing Basis and any reference
in this Agreement to financial statements delivered hereunder
shall be construed as a reference to such financial statements as
adjusted to reflect the Existing Basis.
22.10 Auditors: Its annual financial statements will be
audited by an independent firm of public accounts of
international standing.
22.11 Accounting Reference Date: It will not change its
accounting reference date (or that of its subsidiaries) from 31
March without the prior written consent of the Agent (not to be
unreasonably withheld or delayed).
22.12 Documents: The Articles of Association of the Company
and the Shareholders' Agreement will together with any other
public documents furnished to the Agent contain all the material
terms of the agreements and arrangements between the Shareholders
and the Company (and between the Shareholders and any other
member of the Group) relating to the Company.
22.13 Other Notification: It will deliver to the Agent in
sufficient copies for each of the Banks:
(i) promptly after becoming aware of the same being instituted
or threatened, details of any litigation, arbitration or
administrative proceedings involving it or any of its
subsidiaries which, if adversely determined, would have a
Material Adverse Effect or which would involve liability or
potential liability or alleged liability in excess of 10,000,000
pounds sterling or its equivalent in other currencies or which
involves the Director General, the Secretary of State, any
Licence held by any member of the Group or any Licence
Undertaking;
(ii) during the period from the date of issue and approval of any
Information Memorandum by the Company to the earlier of (A) the
date three months thereafter, and (B) the close of underwriting
and syndication of the Facilities as determined and confirmed to
the Company by the Agent, the Company will notify the Facility
Agent in reasonable detail of any mattes of which it is aware
(whether occurring prior to or after the date of approval and
issue of any Information Memorandum) which cause any Information
Memorandum when read without knowledge of such matters to be
inaccurate or misleading in any materials respect; and
(iii) promptly upon being aware that any material
modifications to the Licence are being proposed by the Director
General or the Target and/or that any Licence Undertaking is
being requested by the Director General or the Secretary of
State, reasonable details thereof, to be updated from time to
time to reflect any changes.
23. Undertakings
The Company (and, in the case of Clause 23.21 (The Offer) Bidco)
undertakes that, so long as any sum remains to be lent or remains
payable under this Agreement:
23.1 Ranking of Obligations: The payment of obligations of each
Obligor under this Agreement rank and will at all times rank at
least equally and rateable in all respects with all its other
unsecured Indebtedness except for such unsecured Indebtedness as
would be mandatorily preferred by law.
23.2 Negative Pledge: It will not, and will ensure that no other
member of the Group will, create any Security on or over its
Assets except for:
23.2.1 any Security created under or in connection with or
arising out of any pooling and settlement agreements (including,
but without limitation, the Pooling and Settlement Agreement) or
pooling and settlement arrangements of the electricity supply
industry or any transactions or arrangements entered into in
connection with the management of risks relating thereto;
23.2.2 liens arising solely by operation of law or by order of
a court or tribunal (or by an agreement) of similar effect in the
ordinary course of business of any member of the Group;
23.2.3 pledges of goods, the related documents of title and/or
other related documents arising or created in the ordinary course
of its business as security only for Indebtedness to a bank or
financial institution directly relating to the goods or documents
on or over which that pledge exists;
23.2.4 Security arising out of title retention or conditional
sale provisions in a supplier's standard conditions of supply of
goods acquired by any member of the Group in the ordinary course
of its business;
23.2.5 any Security existing at the time of acquisition on or
over any Asset acquired by any member of the Group after the date
of this Agreement and not created in contemplation of or in
connection with that acquisition Provided that the principal
amount secured thereby is not subsequently increased and such
Security is discharged within 180 days after that time of
acquisition;
23.2.6 in the case of a Person which becomes a member of the
Group after the date of this Agreement any Security existing on
or over its Assets when it becomes a member of the Group and not
created in contemplation of or in connection with it becoming a
member of the Group Provided that the principal amount secured
thereby is not subsequently increased and such Security is
discharged within 180 days after the date the relevant Person
becomes a member of the Group;
23.2.7 any Security on credit balances of any member of the
Group with a bank or similar financial institution created in the
ordinary course of such member's banking arrangements in order to
facilitate the netting of debit and credit balance of such member
and/or any other member of the Group;
23.2.8 any Security created after the date of this Agreement
in respect of Indebtedness incurred for the sole purpose of
refinancing the Facilities in full;
23.2.9 any Security created by a Project Finance Subsidiary or
over the shares in a Project Finance Subsidiary securing Project
Finance Indebtedness;
23.2.10 any other Security created or outstanding with the prior
consent of an Instructing Group; and
23.2.11 any other Security created or outstanding on or over
Assets of any member of the Group provided that the aggregate
outstanding principal, capital or nominal amount secured by all
Security created or outstanding under this exception on or over
Assets of members of the Group must not at any time exceed
50,000,000 pounds or its equivalent.
23.3 Disposals:
23.3.1 The Company will procure that Bidco will not sell,
transfer or otherwise dispose of or cease to exercise control
over any of the Shares in Target acquired by it.
23.3.2 The Company will not and will ensure that no other
member of the Group will, sell, transfer, lease out or otherwise
dispose of (whether in a single transaction or in a series of
transactions) all or substantially all of its Assets or of any
part of its Assets.
23.3.3 The following disposals shall (if made on arm's length
terms) not be taken into account under Clause 23.3.2:
(i) disposals in the ordinary course of business;
(ii) disposals on normal commercial terms of obsolete Assets or
Assets which are no longer required for the carrying on of the
business for which they were used;
(iii) the payment of cash as consideration for the
acquisition of any Asset;
(iv) the temporary application of funds no immediately required
in the relevant Person's business in the purchase or making of
short-term investments, or the realisation of such investments;
(v) the disposal of Assets by any member of the Group to another
member of the Group in which the Company owns directly or
indirectly a corresponding percentage of the ownership interest;
(vi) other disposals of Assets which are integral to the
distribution and supply of electricity activities of the Group
("Core Assets") to the extent that the value of the Core Assets
disposed of during any financial year of the Company is less than
20,000,000 pounds and in this exception the value of any Core Assets
disposed of shall be the value thereof as included in the audited
consolidated balance sheet of the Company as at the end of the
relevant financial year or, in the case of a Core Asset which was
not taken into account for the purposes thereof, its book value
at the date of disposal;
(vii) other disposals of Assets not referred to in Clause
23.3(vi) ("non-core Assets") to the extent that the value of the
non-core Assets disposed of during any financial year of the
Company is less than 50,000,000 pounds sterling and in this
exception the value of any non-core Assets disposed of shall be
the value thereof as included in the audited consolidated balance
sheet of the Company as at the end of the relevant financial
year, or in the case of a non-core Asset which was not taken into
account for the purposes thereof, its book value at the date of
disposal;
(viii) disposals of receivables on arm's length terms up to a
maximum value of 100,000,000 pounds at any time and in excess of that
amount provided that the net proceeds of any such excess
disposals shall be applied in accordance with this Agreement in
or towards prepayment of Term Advances; and
(ix) any other disposal to which an Instructing Group shall have
agreed.
23.4 Business Activities: It will not, and will ensure that no
other member of the Group will carry on any business other than
those conducted on the date hereof or those which are usual for
electricity companies in the United Kingdom as at the date hereof
including, without limitation, electricity, distribution, supply
and generation, electrical goods retailing and business
activities related to the gas, telecommunications and water
industries
23.5 Restriction on Distributions: It will only declare,
recommend, make or pay any dividend, distribution or payment
(including by way of redemption, repurchase, defeasance,
retirement, return or repayment) to any of its Shareholders or
make any payment (including by way of redemption, repurchase,
defeasance, retirement, return or repayment) in respect of any
Subordinated Debt if there exists no Event of Default or material
Potential Event of Default and no such Event of Default or
material Potential Event of Default will result from the making
of such dividend, distribution or payment and either:
(i) the ratio of Net Debt to Capitalisation of the Group
(calculated on the basis set out in Clause 23.9 (Financial
Ratios) at that time is 60% or less and EBITDA of the Group is
not less than 2.4 times Net Interest Payable (calculated on the
basis set out in such Clause 23.9 (Financial Ratios)) and it will
continue to be in compliance with such financial ratios after
making or paying any such dividend, distribution or payment; or
(ii) (if it is not in compliance with the financial ratios
set out in Clause 23.5(i) above) at such time its long
term corporate debt rating is BBB with Standard & Poors
Rating Group and Baa2 with Moody's Investors Service,
Inc.,
Provided that nothing in this Clause 23.5 shall prohibit the
payment to Shareholders of amounts due for goods and/or
services received or provided in the ordinary course of
business.
23.6 Restriction on Borrowings: The Company will procure that
the aggregate Borrowings of the Target and its subsidiaries
taken together on a consolidated basis and giving effect to
the proviso to the definition of Borrowings plus (to the
extent not otherwise included in Borrowings of the Target
and/or its subsidiaries) the amount of any actual or
contingent liability of the Target and/or its subsidiaries
(1) for Borrowings at that time of any Person in which the
Target or any of its subsidiaries has an ownership interest,
or (2) to provide funds by loan, subscription for share
capital or otherwise to any person in which the Target or
any of its subsidiaries has an ownership interest, will not
exceed the sum of the following:
(A) the outstanding principal amount from time to time of
any Utilisation of the Revolving Facility and the
Overdraft Facility made by such companies;
(B) the principal amount of all Borrowings of such
companies outstanding at the Unconditional Date save to
the extent refinanced by Utilisation of the Revolving
Facility made by such companies;
(C) the outstanding principal amount from time to time of
all Borrowings of such companies for which the only
creditor is the Company and/or Bidco;
(D) Project Finance Indebtedness of the Target and/or its
subsidiaries outstanding from time to time; and
(E) 50,000,000 pounds sterling.
23.7 Compliance with law: It will, and will ensure that each
other member of the Group will, comply with the requirements
of all rules, regulations, orders and other requirements of
the Secretary of State and the Director General under the
Act or other law applicable to the conduct of the business
of the supply or distribution of electricity where failure
to comply therewith (whether immediately or in the course of
time) would have a Material Adverse Effect.
23.8 Licence: One the Target becomes a subsidiary of the Company
and under its control and in any event no later than 30 days
after the Target becomes a subsidiary of the Company, it
will ensure that the Target and any Licenceholder (or any
other relevant member of the Group) complies in all material
respects with the terms of the Licence where failure to
comply therewith (whether immediately or in the course of
time) would have a Material Adverse Effect.
23.9 Financial Ratios:
23.9.1 The ratio of Net Debt to Capitalisation of the
Group shall not exceed the following levels at the end
of each Relevant Period ending during the periods
indicated below:
70 per cent - until 31 March 2000;
65 per cent - thereafter
23.9.2 The ratio of EBITDA of the Group to Net Interest
Payable for any period referred to below shall not be
less than the following amounts for such period:
2.5:1 for the Relevant Period ending on the last day of
each the first two full quarterly accounting periods
following the Unconditional Date;
2:25:1 for the Relevant Period ending on the last day
of the third full quarterly accounting period following
the Unconditional Date;
2.15:1 for the Relevant Period ending on the last day
of the fourth full quarterly accounting period
following the Unconditional Date; and
2.15:1 for each subsequent Relevant Period.
23.10 Treasury Transactions: No Obligor will, and each
Obligor will ensure that none of its subsidiaries will
without the prior written consent of an Instructing Group,
enter into any interest rate swap, cap, ceiling, collar or
floor or any currency swap, futures, foreign exchange or
commodity contract or option (whether over the counter or
exchange traded) or any similar treasury transaction, other
than spot foreign exchange contracts entered into in the
ordinary course of business, and transactions for the
hedging of actual or project interest rate, currency and/or
commodity and/or energy price exposures arising in the
ordinary course of business activities of such member of the
Group.
23.11 Loans out: No Obligor will, and each Obligor will
procure that no member of the Group will, be the creditor in
respect of any Borrowings, save for:
(a) any Borrowing entered into with the prior written
consent of an Instructing Group;
(b) any Borrowing under paragraph (b) of the definition of
"Borrowing" where trade credit is extended by any
member of the Group on normal commercial terms and in
the ordinary course of its business on substantially
the same terms (or terms more favourable to it) and in
similar circumstances as for trade credit extended
prior to the date hereof by the Target or its
subsidiaries;
(c) loans made by one member of the Group to another member
of the Group;
(d) Borrowings not otherwise permitted pursuant to
paragraphs (a) - (c) above in an aggregate amount for
the Group as a whole at any time outstanding not
exceeding 5,000,000 pounds sterling.
23.12 Mergers: Neither the Company nor Bidco nor the Target
nor any Licenceholder nor any other Obligor will, and each
Obligor will procure that no other member of the Group will,
save with the prior written consent of an Instructing Group
enter into any merger or consolidation, provided that
members of the Group other than the Company, Bidco, the
Target, the Licenceholder and any Obligor may merge or
consolidate with other such members of the Group.
23.13 Holding Company: Save with the prior written consent of
an Instructing Group, neither the Company nor Bidco shall
carry on any business (other than the holding shares in and
the provision of administrative services to members of the
Group) or acquire any assets other than cash, or cash
equivalents or shares which (i) are shares in the Target or
Bidco, or (ii) are shares in companies which are already
members of the Group.
23.14 Arm's Length Terms: No Obligor will, and each Obligor
will procure that no other member of the Group will, enter
into any material transaction with any Person otherwise than
on arms length terms, save with the prior written consent of
an Instructing Group, and save for (i) loans made by one
member of the Group to another member of the Group which are
expressly permitted hereunder, (ii) disposals by one member
of the Group to another member of the Group expressly
permitted hereunder, (iii) transactions entered into on
terms more favourable to a member of the Group than would
have been the case had the transaction been entered into on
arms length terms, and (iv) other transactions (including
the issue of Subordinated Debt as and to the extent
permitted hereunder) expressly permitted by this Agreement.
23.15 Constitutional Documents: No Obligor will, and each
Obligor will procure that no other member of the Group will,
save with the prior written consent of an Instructing Group
or as required by law, amend or seek or agree to amend or
replace the memorandum or articles of association other
constitutional documents or by-laws of any member of the
Group or the Shareholders' Agreement in any way which would
likely materially and adversely to affect the interests of
the Banks under the Finance Documents.
23.16 Compliance with laws: Each Obligor will, and will
procure that each other member of the Group will, comply in
all material respects with all applicable laws, rules,
regulations and orders of any governmental authority,
whether domestic or foreign, having jurisdiction over it or
any of its assets, failure to comply with which would have a
Material Adverse Effect.
23.17 Consents: Each Obligor will, and will procure that each
other member of the Group will, obtain, promptly renew from
time to time and maintain in full force and effect, and if
so requested promptly furnish certified copies to the Agent
of all such material authorisations, approvals, consents,
licences and exemptions as may be required under any
applicable law or regulation or under the Licence or any
Licence Undertaking:
(i) to enable each Obligor to perform its respective
material obligations under the Finance Documents to
which it is a party or required for the validity or
enforceability of such Finance Documents or of any
security provided for thereby; and/or
(ii) to carry on its business as it is being conducted from
time to time where failure to obtain, renew or maintain
any such authorisation, approval, consent, licence or
exemption or non-compliance with the terms of the same
would have a Material Adverse Effect.
23.18 Syndication: The Company shall ensure that all members
of the Group will provide reasonable assistance to the Agent
and the Arranger in the sub-underwriting and syndication of
the Facilities (including, without limitation, by making
management available for the purpose of making presentations
to, or meeting with, potential lending institutions and in
the preparation of the Information Memorandum for
syndication of the Facilities and comply with all reasonable
requests for information from potential syndicate members
made through the Facility Agent or the Arranger.
23.19 Revocation or Modification of Licence: The Company will
procure that the Target, (once it has become a subsidiary of
the Company and under its control and in any event no later
than 30 days after the Target becomes a subsidiary of the
Company), and any and each other Licenceholder shall not
consent, without the prior written consent of an Instructing
Group, to any revocation of its Licence or to any material
modification to the terms thereof if such modification, in
the reasonable opinion of an Instructing Group, would have
(whether immediately or prior to the Final Maturity Date) a
Material Adverse Effect.
23.20 Licence Undertakings: The Company will consult with the
Original Banks with regard to the terms of any Licence
Undertaking which it or any holding company of it or the
Target may be required to give to the Director General or
the Secretary of State in connection with the Offer and will
not give and will procure that such holding company and
(once it has become a subsidiary of the Company and under
its control and in any event no later than 30 days after the
Target becomes a subsidiary of the Company) the Target will
not give any such Licence Undertaking without the prior
consent of an Instructing Group (such consent not to be
unreasonably withheld).
23.21 The Offer:
(a) Bidco undertakes that:
(i) without the prior agreement of an Instructing
Group, (the agreement of an Instructing Group
being conclusively evidenced by a written notice
from the Agent to Bidco with a copy to C.S. First
Boston Limited as financial advisers to Bidco)
Bidco will not:
(A) declare, decide or accept any percentage
below 50 percent plus one Share for the
purposes of any of the conditions set out in
paragraph (a) of Appendix 1 to the Press
Release;
(B) take or permit to be taken any step as a
result of which the offer price under the
Offer is, or may be required to be, increased
beyond the level agreed between Bidco and the
Banks from time to time;
(C) issue any press release or other publicity
which makes reference to the Facilities, the
Arranger, the Agent or to some or all of the
Banks unless the publicity is required by law
or by the Code (in which case Bidco shall
notify the Agent thereof as soon a
practicable upon becoming aware of the
requirement);
(ii) in all material respects relevant in the context
of the Offer and the Preference Share Offer, it
will comply with the Code (subject to any waivers
granted to the Panel), the Financial Services Act
1986, the Companies Act 1985 and all other
applicable statutes, laws and regulations;
(iii) it will keep the Agent informed as to the
status of an progress with respect to the Offer
and the Preference Share Offer and in particular
will from time to time and promptly upon request,
give to the Agent for the Banks reasonable details
as to the current level of acceptances of the
Offer and the Preference Share Offer, and such
other matters relevant to the Offer and the
Preference Share Offer as the Agent may reasonably
request. Bidco will also promptly deliver to the
Agent a copy of every material certificate
delivered by receiving agents to Bidco and/or its
advisers pursuant to the Code.
(b) If Bidco becomes aware (whether through notice
from the Agent or any Bank or otherwise) of a
circumstance or event which is or could reasonably
be construed to be covered by a condition of the
Offer which, if not waived, would entitle Bidco
(with the Panel's consent, if needed) to lapse the
Offer, Bidco shall notify the Agent and the
following shall apply:
(A) if Bidco wishes to waive, withdraw or agree
or decide not to enforce the condition and an
Instructing Group agrees, (or does not make
through the Agent the statement set out in
(B) below) Bidco may do so;
(B) if an Instructing Group does not so agree and
states that in its opinion such circumstance
or event would materially and adversely
affect the ability of Bidco to comply with
its material obligations under the Finance
Documents, Bidco will request the Panel to
agree that the Offer may lapse as a result of
non-satisfaction of that condition or of the
conditions as to acceptances (as set out in
paragraph (a) of Appendix 1 to the Press
Release) and that such lapsing will not give
rise to a breach of the Code. If the Panel
does not so agree, then Bidco may, without
the Banks' agreement, waive, withdraw or
agree to decide not to enforce such
condition.
(c) (i) In relation to each of the conditions
(c) and (d) (as set out Appendix 1 to the
Press Release), Bidco shall disclose to the
Agent any and all conditions attaching to
respectively, the announcement by the U.K.
Office of Fair Trading (in the case of
condition (c)) or the indication by the
Director General (in the case of condition
(d)).
(ii) In relation to condition (e) (as set out
in such Appendix) Bidco shall disclose
to the Agent the terms of all
undertakings and assurances sought by
the Director General as referred to
therein and proposed to be given.
23.22 Environmental Matters: The Company will and will
procure that each member of the Group will:
(a) obtain all material requisite Environmental Licences
and comply in all material respects with (i) the terms
and conditions of such Environmental Licences
applicable to it and (ii) all other applicable
Environmental Laws in each case where failure to do so
would have a Material Adverse Effect;
(b) promptly upon receipt of the same, notify the Agent of
any claim, notice or other communication served on it
in respect of any alleged breach of or corrective or
remedial obligation or liability under the
Environmental Law which would, if substantiated, have a
Material Adverse Effect.
23.23 Insurance: It will procure that each member of the
Group maintains insurance on and in relation to its business
and assets with reputable underwriters or insurance
companies against such risks and to such extent as it usual
for companies carrying on a business such as that carried on
by such member of the Group.
23.24 Target's Facilities: The Company will procure that one
Target has become a subsidiary of the Company and under its
control and in any event no later than 30 days after the
time it has become a subsidiary of the Company any undrawn
commitment under the existing revolving credit and working
capital facilities of the Target or any of its subsidiaries
will be canceled and any outstanding indebtedness thereunder
will be refinanced as promptly as possible in accordance
with the terms of the relevant agreement and in any event
prior to the Clean-up Date.
24. Default
24.1 Event of Default: The following are Events of Default:
24.1.1 Non-Payment: An Obligor does not pay in the manner
provided in this Agreement any sum payable under it
when due Provided that this clause shall not apply to
unpaid amounts which are paid in full within 5 days of
the due date.
24.1.2 Breach of Representation: Any representation or
warranty by an Obligor in this Agreement or in any
document delivered under it is or proves to have been
incorrect, in any material respect, when made or deemed
to be made or repeated by reference to the facts and
circumstances then subsisting and, if the circumstances
causing such misrepresentation are capable of remedy
within such period, such Obligor shall have failed to
remedy such circumstances within 28 days after receipt
by the relevant Obligor of written notice from the
Agent to such Obligor requiring the circumstances
causing such misrepresentation to be remedied;
24.1.3 Breach of Financial Ration Obligations: The
Company fails to comply with any provision of Clause
23.9 (Financial Ratios) and the appropriate ration is
not achieved within 28 days after notice of that
default has been given to it by the Agent.
24.1.4 Breach of Other Obligation: An Obligor does not
perform or comply with any one or more of its other
obligations under any Finance Document and, if that
default is capable of remedy, it is not remedied within
28 days after notice of that default has been given to
it by the Agent.
24.1.5 Cross Default/Acceleration: Any Borrowings of any
member of the Group become due and payable before their
normal maturity or are placed on demand or any
commitment for or underwriting in respect of a facility
for Borrowings granted to a member of the Group is
canceled or suspended (in each case by reason of the
occurrence of an event of default however
characterised) or any Borrowings of a member of the
Group are not paid when due (or, in the case of demand
facilities, within 5 business days of their due date)
(whether falling due by demand, at schedule maturity or
otherwise) or within any applicable grace period.
However, no Event of Default will occur under this
Clause 24.1.5 unless and until the aggregate amount of
Borrowings in respect of which one or more of the
events mentioned above in this Clause 24.1.5 has
occurred and exceeds 25,000,000 pounds sterling or its
equivalent.
24.1.6 Insolvency: An Obligor or a Material Subsidiary is
insolvent or unable to pay its debts, stops or suspends
payment of its Indebtedness or proposes or makes a
general assignment or an arrangement or composition
with or for the benefit of its creditors.
24.1.7 Moratorium: A moratorium in respect of all or any
debts of an Obligor or any Material Subsidiary or a
composition or an arrangement with creditors generally
of an Obligor or any Material Subsidiary or any other
arrangement whereby its affairs and/or assets are
submitted to the control of or are protected from its
creditors is applied for, ordered or declared.
24.1.8 Administrator: An application is made for the
appointment of an administrator (as such term is used
in the Insolvency Act 1986) or similar official in
relation to an Obligor or any Material Subsidiary (and
such application is not withdrawn, discharged or stayed
within 21 days of being made) or an effective
resolution is passed by the directors or shareholders
or an Obligor of any Material Subsidiary for such an
application to be made or an administrator, receiver or
administrative receiver is appointed in respect of an
Obligor or any Material Subsidiary.
24.1.9 Enforcement Proceedings: A distress, attachment,
execution or other legal process is levied, enforced or
sued out on or against the Assets of an Obligor or a
Material Subsidiary having an aggregate value of
25,000,000 pounds sterling save where (i) the relevant
member is, in good faith, contesting the distress,
execution, attachment, sequestration or other process
by appropriate proceedings diligently pursued and (ii)
an Instructing Group acting reasonably are satisfied
that the ability of an Obligor to comply with its
obligations under the Finance Documents will not be
materially and adversely affected whilst such distress,
execution, attachment, diligence or other process is
being so contested.
24.1.10 Winding-up: An order is made or an effective
resolution is passed or any legal proceedings are
initiated or are consented to by an Obligor or a
Material Subsidiary or any petition shall be presented
or legal proceedings commenced by any person (and not,
where that person is unconnected with that member of
the Group save for being a creditor of such member,
discharged or stayed within 21 days in the case of both
legal proceedings and such petition) for the winding-
up, termination of existence, dissolution or other like
process of an Obligor or a Material Subsidiary or any
of them ceases to carry on all or a substantial part of
its business except for the purpose of and followed by
a reconstruction, amalgamation, reorganisation, merger
or consolidation on terms approved by an Instructing
Group and save as may result from any disposal of
assets permitted by the terms of this Agreement or any
solvent liquidation, dissolution or winding-up of any
of the Group (not being an Obligor) which would have a
Material Adverse Effect.
24.1.11 Ownership of Target: At any time after the Clean-
up Date less than 75% of the Ordinary Shares in the
Target are owned by the Company.
24.1.12 Control: Without the prior written consent of an
Instructing Group, CalEnergy Company, Inc. shall cease
to own directly or indirectly at least 50.1% of all
classes of share capital in the Company.
24.1.13 Licence:
(i) The Licence is revoked or surrendered or ceases to
be held by the Target or a wholly-owned subsidiary
of the Target or Bidco other than in circumstances
which permit the Target or such wholly-owned
subsidiary to carry on the distribution business
of the Target substantially as envisaged at the
date of this Agreement either without the Licence
as a result of any change in the Act or with a new
public electricity supply licence issued to such
person under the Act whose terms are not
materially less favourable than those of the
Licence.
(ii) The License or any substitute licence contemplated
by a sub-paragraph (i) above is materially
modified in any manner which in the reasonable
opinion of an Instructing Group would have
(whether immediately or overtime) a Material
Adverse Effect.
24.1.14 Compliance with Act: The Licenceholder fails to
comply with a final order (within the meaning of
Section 25 of the Act) or with a provisional order
(within the meaning of that section) which has been
confirmed under that section and in either case which
has not been revoked under that section or the validity
of which has not been questioned under Section 27 of
the Act.
24.1.15 Pooling and Settlement Agreement: Any notice
requiring Target to cease to be a party to the Pooling
and Settlement Agreement is given to Target under
Clauses 60.1.3 or 60.2.2 of the Pooling and Settlement
Agreement.
24.1.16 Expropriation: The authority or ability of the
Company or Target or the Licenceholder to conduct its
business is wholly or substantially curtailed by any
expropriation to renationalisation by or on behalf of
any governmental authority.
24.2 Cancellation/Acceleration: If at any time and for any reason
(and whether within or beyond the control of any party to
this Agreement) any Event of Default has occurred then at
any time thereafter, subject to Clause 24.3 (Suspension of
Rights), if any such Event of Default is continuing, the
Agent, if so instructed by an Instructing Group, shall be
notice to the Company declare:
24.2.1 the Commitments to be cancelled, whereupon they
shall be cancelled; and/or
24.2.2 all Advances, all unpaid accrued interest and fees
and any other sum then payable under this Agreement to
be immediately due and payable or payable on demand,
whereupon they shall become to due and payable or
payable on demand (in which latter case the Agent may
at any subsequent time make a demand at which point all
such sums shall become due and payable),
Provided that until the Clean-up Date the Events of Default
set out in Clause 24.1.4 (Breach of other Obligations) shall
not apply to Target or any of its subsidiaries and the Event
of Default set out in Clauses 24.1.5 to 24.1.10 shall not
apply in respect of any subsidiary of Target.
24.3 Suspension of Rights: Prior to the end of the Certain Funds
Period, unless an Event of Default has occurred which is
continuing under Clauses 24.1.6 (Insolvency), 24.1.7
(Moratorium), 24.1.8 (Administrator), 24.1.10 (Winding-up)
in respect of an Obligor or a breach of any of the
representations set out in Clauses 21.1.1, (Status), 21.1.2
(Powers), 21.1.3 (Authorisations and Consents), 21.1.4 (Non-
Violation) and 21.1.5 (Obligations Binding) has occurred in
respect of an Obligor none of the Banks shall be entitled to
exercise any rights of rescission or other remedy or be
entitled to terminate or cancel the Facilities or require
repayment of any Advance or refuse to make any Advance in
consequence of any of the representations and warranties set
out herein being or being proved to have been incorrect in
any respect or the Company or Bidco having failed to
perform, observe or comply with any of its covenants or
other obligations or agreements herein or the occurrence of
any Event of Default or Potential Event of Default.
24.4 Clean-up Period: Subject to Clause 24.3, if during the
period from the Unconditional Date to the Clean-up Date any
Potential Event of Default shall exist which consists of, or
is a direct consequence of any event or circumstance which
occurred in relation to Target or any of its Subsidiaries
(or its or any of their business, assets or liabilities) on
or before the Unconditional Date, then the following shall
apply:
24.4.1 the Company or Target shall notify the Agent of
that fact by fax promptly after becoming aware thereof,
giving a reasonable description of:
(i) the Potential Event of Default and its causes; and
(ii) the remedial action in relation to that Potential
Event of Default which the Company and/or Target
propose to take;
24.4.2 that Potential Event of Default shall not
constitute an Event of Default, and the Agent shall not
with respect to that Potential Event of Default (but,
for the avoidance of doubt, no so as to restrict the
Agent's rights to take such action with respect to any
other Event of Default which is not a Potential Event
of Default) be entitled to take any of the actions set
out in Clause 24.2 (Cancellation/Acceleration), until
(assuming that the Potential Event of Default is then
continuing) the Clean-up Date.
Provided that (i) the foregoing shall not apply with respect
to any Potential Event of Default under any of the following
Clauses:
24.1.1 (Non-Payment);
24.1.6 (Insolvency);
24.1.7 (Moratorium);
24.1.8 (Administrator);
24.1.10 (Winding-up);
24.1.12 (Control);
24.1.13 (Licence);
24.1.14 (Compliance with Act);
24.1.15 (Pooling and Settlement Agreement); or
24.1.16 (Expropriation),
irrespective of whether or not that Potential Event of
Default occurred in consequence of any event or circumstance
which occurred before the Unconditional Date, and (ii) any
Potential Event of Default shall nevertheless constitute a
Potential Event of Default for the purposes of a drawing
under the Revolving Facility other than a drawing for the
purposes set out in Clause 3.2 after the Clean-up Date.
Part 8
Guarantee
25. Guarantee
25.1 Guarantee from the Company: The Company unconditionally and
irrevocably guarantees that, if for any reason any other
Borrower does not pay any sum payable by it under the
Revolving Facility by the time, on the date and otherwise in
the manner specified in this Agreement (whether on the
normal due date, on acceleration or otherwise), the Company
will pay that sum within 5 business days of demand by the
Agent (acting on instructions from an Instructing Group).
25.2 Guarantee from Bidco: Bidco unconditionally and irrevocably
guarantees that, if for any reason the Company does not pay
any sum payable by it under this Agreement by the time, on
the date and otherwise in the manner specified in this
Agreement (whether on the normal due date, on acceleration
or otherwise) Bidco will pay that sum within 5 business days
of demand by the Agent (acting on instructions of an
Instructing Group).
25.3 Guarantor as Principal Debtor: As between each Guarantor and
the other parties to this Agreement but without affecting
any other Borrower's or, as the case may be, the Company's
obligations, each Guarantor shall be liable under this
Clause 25 as if it were the sole principal debtor and not
merely a surety. Accordingly, neither Guarantor shall be
discharged, nor shall its liability be affected, by anything
which would not discharge it or affect its liability if it
were the sole principal debtor (including:
(i) any time, indulgence, concession, waiver or consent at
any time given to any other Borrower or, as the case
may be, the Company or any other Person;
(ii) any amendment or supplement to any other provision of
this Agreement or to any Security or other guarantee;
(iii) the making or absence of any demand on any other
Borrower or, as the case may be, the Company or any
other Person for payment;
(iv) the enforcement or absence of enforcement of this
Agreement or of any Security or other guarantee;
(v) the taking, existence or release of any Security or
other guarantee;
(vi) the winding-up of any other Borrower or, as the case
may be, the Company or any other Person, or any step
being taken for such winding-up; or
(vii) the illegality, invalidity or unenforceability of,
or any defect in, any provision of this Agreement or
any Security or other guarantee or any of the
obligations of any of the parties under or in
connection with this Agreement or any Security or other
guarantee.
25.4 Each Guarantor's Obligation Continuing: Each Guarantor's
obligations under this Part 8 are and will remain in full
force and effect by way of continuing security until no sum
remains to be lent under this Agreement and the Agent, the
Arranger and the Banks have irrevocably received or
recovered all sums payable under this Agreement.
Furthermore, those obligations of each Guarantor are
additional to, and not instead of, any Security or other
guarantee at any time existing in favour of any Person,
whether from a Guarantor or otherwise, and may be enforced
without first having recourse to any other Borrower or, as
they case may be, the Company, any other Person, any
Security or any other guarantee. Each Guarantor irrevocably
waives any requirement for any notices or (except as
required by Clauses 25.1 (Guarantee from the Company) and
25.2 (Guarantee from Bidco)) demands of any kind.
25.5 Exercise of each Guarantor's Rights: So long as any sum
remains to be lent or remains payable under this Agreement:
(i) any right of a Guarantor, by reason of the performance
of any of its obligations under this Clause 25, to be
indemnified, in the case of the Company, by any other
Borrower and, in the case of Bidco, by the Company, to
prove in respect of any liability in the winding-up of
any other Borrower or, as the case may be, the Company
or to take the benefit of or enforce any Security or
other guarantee shall (and shall only) be exercised and
enforced in such manner and on such terms as the Agent
(acting on instructions from an Instructing Group) may
require; and
(ii) any amount received or recovered by a Guarantor (a) as
a result of any exercise of any such right or (b) in
the winding-up of any other Borrower or, as the case
may be, the Company shall be held on trust for the
Agent, the Arranger and the Bank and immediately paid
to the Agent.
25.6 Avoidance of Payments: Each Guarantor shall on demand
indemnify the Agent, the Arranger and each Bank against any
funding or other cost, loss, expense or liability (including
loss of Margin) sustained or incurred by the Agent or, as
the case may be, the Arranger or that Bank as a result of it
being required for any reason (including any bankruptcy,
insolvency, winding-up or similar law of any jurisdiction)
to refund all or part of any amount received or recovered by
it in respect of any sum payable by any other Borrower or,
as the case may be, the Company under this Agreement and
shall in any event pay to the Agent or, as the case may be,
the relevant Arranger or Bank on demand the amount so
refunded by it.
25.7 Suspense Accounts: For the purpose of enabling the Agent,
the Arranger or any Bank to maximise its recoveries in any
actual or potential winding-up, any amount received or
recovered by the Agent, the Arranger or any Bank in respect
of any sum payable by any other Borrower or, as the case may
be, the Company under this Agreement may be placed by the
recipient in an interest bearing suspense account. That
amount may be kept there (with any interest earned being
credited to that account) unless and until the recipient is
reasonably satisfied that it is not obliged to pay any
further sum under this Agreement and that it has irrevocably
received or recovered its share of the Advances, all
interest accrued thereon and any other sums payable to it
under this Agreement.
25.8 Indemnity: As separate, independent and alternative
stipulations, each Guarantor unconditionally and irrevocably
agrees:
(i) that any sum which, although expressed to be payable by
any other Borrower or, as the case may be, the Company
under this Agreement, is for any reason (whether or not
now existing and whether or not now known or becoming
known to any party to this Agreement) not recoverable
from the relevant Guarantor on the basis of a guarantee
shall nevertheless be recoverable from it as if it were
the sole principal debtor and shall be paid by it to
the Agent on demand; and
(ii) as a primary obligation to indemnify the Agent, the
Arranger and each Bank against any loss suffered by it
as a result of any sum expressed to be payable by any
other Borrower or, as the case may be, the Company
under this Agreement not being paid by the time, on the
date and otherwise in the manner specified in this
Agreement or any payment obligation of any other
Borrower or, as the case may be, the Company under this
Agreement being or becoming void, voidable or
unenforceable for any reason (whether or not now
existing and whether or not now known or becoming known
to any party to this Agreement), the amount of that
loss being the amount expressed to be payable by any
other Borrower or, as the case may be, the Company in
respect of the relevant sum.
25.9 As used in this Clause 25 "Guarantor" means with respect to
the obligations of any other Borrower which are guaranteed
pursuant to Clause 25.1, the Company and with respect to the
obligations of the Company which are guaranteed pursuant to
Clause 25.2, Bidco.
PART 9
PAYMENTS
26. Currency of Account
Sterling is the currency of the account and payment for each
and every sum due from each Obligor under this Agreement.
27. Payments
27.1 Payments to the Agent: Except as otherwise specifically
stated herein, on each date upon which this Agreement
requires an amount to be paid by an Obligor or any Bank,
such Obligor or such Bank shall make the same available to
the Agent by payment in sterling in cleared funds direct to
such account as the Agent may from time to time have
specified for this purpose.
27.2 Payments by the Agent: Subject to Clause 27.4 (Clawback)
each payment received by the Agent pursuant to Clause 27.1
(Payments to the Agent) for the account of another Person
shall be made available by the Agent to such account of such
Person with a bank in London as such Person shall have
previously notified the Agent.
27.3 No Set-Off: All payments made by an Obligor under this
Agreement shall be made free and clear of and without any
deduction for or on account of any set-off or counterclaim
except only Taxes to which the provisions of Clause 16.1
(Gross-up) apply.
27.4 Clawback: Where a sum is to be paid hereunder to the Agent
for the account of another Person, the Agent shall not be
obliged to make the same available to that other Person
until it has been able to establish to its satisfaction that
it has actually received such sum, but if it does so and it
proves to be the case that it had not actually received the
sum it paid out, then the Person to whom such sum was so
made available shall on request refund the same to the
Agent, together with an amount sufficient to indemnify the
Agent against any cost or loss it may have suffered or
incurred by reason of its having paid out the sum in
question prior to its having received the same.
27.5 Repayment on a business day: If any payment falls to be made
hereunder on a day which is not a business day such payment
shall be made on the next business day.
28. Redistribution of Payments
28.1 Sharing: If (a) immediately following the Final Maturity
Date or (b) on any earlier date after the Commitments of all
the Banks have been reduced to zero, the principal amount
outstanding to a Bank hereunder and under any Overdraft
Facility which had a Commitment immediately prior to the
reduction of its or all Commitments to zero (a "Sharing
Bank") does not bear the same proportion to the aggregate
principal amount outstanding to all the Sharing Banks
hereunder and under any Overdraft Facility as such Sharing
Bank's Commitment bore (immediately prior to the reduction
of its or all the Commitments to zero) to the Total
Commitments at such time then each Sharing Bank shall, upon
being so notified by the Agent, promptly pay the Agent (for
distribution to the other Sharing Banks) such amount as is
necessary to ensure that, after taking account of all
distributions amongst the Sharing Banks pursuant to this
Clause 26.1, the aforesaid ratios are the same. Provided
that for these purposes any reduction in Commitment pursuant
to Clause 4.2 (Overdraft Facility) shall be ignored in
making any distribution referred to above.
28.2 Memorandum Account: Each Sharing Bank shall open a
memorandum account in respect of each currency for the
purposes of Clause 28.1 (Sharing) and each Sharing Bank
shall credit or, as the case may be, debit amounts to or
form such memorandum account in respect of the receipt or,
as the case may be, payment of amounts paid pursuant to
Clause 28.1 (Sharing).
28.3 Adjustments: All amounts received or recovered by each of
the Sharing Banks in respect of interest on the principal
amount outstanding hereunder or under any Overdraft Facility
shall be shared amongst each Sharing Bank by reference to
such Sharing Bank's principal amount outstanding but
adjusted to take account of all credits and debits made to
its memorandum account pursuant to Clause 28.2 (Memorandum
Account).
28.4 Minimisation: Each of the Sharing Banks hereby agrees that:
(i) it will take all reasonable steps (in consultation with
the Agent and the other Sharing Banks) to minimise all
amounts owing to it hereunder; and
(ii) it will inform the Agent from time to time of all
amounts owing to it hereunder.
28.5 Rights Contractual: It is hereby agreed that any rights and
obligations of the Sharing Banks arising in respect of any
payments to be made or received by any of them under this
Clause 28 are their contractual rights and obligations
against, or to, each other and nothing herein is intended
to, nor shall it be construed so as to, constitute an
assignment or other transfer of any proprietary right or
interest (whether legal or beneficial) to or in any debt or
other obligation of any Obligor.
28.6 Partial Payments: Without prejudice to the other provisions
of this Clause 28, if the Agent shall receive from an
Obligor funds which are insufficient to satisfy in full the
obligations of such Obligor under this Agreement then due to
be discharged, the Agent shall allocate the funds so
received in or towards discharging the amounts then so due
from such Obligor under this Agreement pro rata to the
amounts of such obligations and each party hereto
irrevocably authorises and directs the Agent so to act.
28.7 Appropriation: No Obligor shall be entitled to make any
designation or appropriation of the application of funds in
the circumstances referred to in Clause 28.6 (Partial
Payments).
29. Netting of Payments and Set-Off
29.1 Netting: If on any Utilisation Date:
(i) a Bank is required to make an Advance to a Borrower
hereunder; and
(ii) such Borrower is due to prepay or repay an Advance (or
part thereof) that that Bank, then the Agent may
(without prejudice to the relevant Borrower's
obligation to make the payment in question pursuant to
this Agreement prior to any application pursuant to
this Clause) apply any amount payable by such Bank to
such Borrower on that Utilisation Date in respect of
Advances to be made to such Borrower, in or towards
satisfaction of the amounts payable by such Borrower to
such Bank on such Utilisation Date.
29.2 Set-Off: Each Obligor authorises each Bank to apply any
credit balance to which such Obligor is entitled on any
account with such Bank in satisfaction of any sum due and
payable by such Obligor to such Bank hereunder but unpaid;
for this purpose each Bank is authorised to purchase with
the monies standing to the credit of any such account other
currencies as may be necessary to effect such application
(but so that noting in this Clause 29.2 shall be effective
to create a charge). No Bank shall be obliged to exercise
any right given to it by this Clause 29.2.
PART 10
DEFAULT INTEREST AND INDEMNITY
30. Default Interest and Indemnity
30.1 Default Interest Periods: If any sum due and payable by an
Obligor under this Agreement is not paid on the due date,
the period beginning on such due date and ending on the date
upon which the obligation of such Borrower to pay such sum
(the balance thereof for the time being unpaid being herein
referred to as an "unpaid sum") is discharged shall be
divided into successive periods, each of which (other than
the first) shall start on the last day of the preceding such
period and the duration of each of which shall be selected
by the Agent but shall not exceed three months.
30.2 Default Interest: During each such period relating thereto
as is mentioned in Clause 30.1 (Default Interest Periods)
(as well after as before judgment) an unpaid sum shall bear
interest at the rate per annum which is the sum of the
applicable Margin at such time, 1% and LIBOR (plus the
Associated Costs Rate) on the Quotation Date for such period
Provided that;
30.2.1 if for any such period LIBOR cannot be determined,
then the rate of interest applicable to such unpaid sum
shall be the sum of the applicable Margin at such time,
1% per annum, the Associated Costs Rate and the rate
per annum determined by the Agent to be equal to the
arithmetic mean of the costs to each of the Reference
Banks of obtaining deposits from such sources as it may
reasonably select; and
30.2.2 if such unpaid sum is all or part of an Advance
which became due and payable on a day other than the
last day of the Term thereof, or, as the case may be,
an Interest Period relating thereto, the first such
period applicable thereto shall be of a duration equal
to the unexpired portion of the Term thereof, as the
case may be, Interest Period relating thereto and the
rate of interest applicable thereto during such period
shall be that which exceeds by 1% per annum the rate
applicable to it immediately before it fell due.
30.3 Payment of Default Interest: Any interest payable which
shall have accrued on any unpaid sum due from an Obligor
shall be due and payable and shall be paid by such Borrower
to the Agent for the account of the party entitled thereto
at the end of the period by reference to which it is
calculated.
30.4 Break Costs: Notwithstanding any other provision of this
Agreement, if any Bank or the Agent on its behalf receives
or recovers all or part of any Advance made by such Bank
otherwise than on the last day of the Term thereof or, as
the case may be, an Interest Period relating thereto, the
Company shall pay to the Agent on demand for the account of
such Bank an amount equal to the amount (if any) by which
(i) the additional interest (excluding any part of that
interest which would represent Margin) which would have been
payable on the amount so received or recovered had it been
received or recovered on the last day of the Term thereof
or, as the case may be, the current Interest Period relating
thereto exceeds (ii) the amount of interest which in the
opinion of the Agent would have been payable to the Agent on
the last day of the term thereof or, as the case may be, the
current Interest Period relating thereto in respect of a
deposit equal to the amount so received or recovered placed
by it with a prime bank in London for a period starting on
the business day following the date of such receipt or
recovery and ending on the last day of the Term thereof or,
as the case may be, the current Interest Period relating
thereto.
30.5 Default Indemnity: The Company undertakes to indemnify:
30.5.1 each of the Banks, the Arranger and the Agent
against any cost, loss or expense, including legal
fees, which any of them may sustain or incur as a
consequence of any default by an Obligor in the
performance of any of the obligations expressed to be
assumed by it in any Finance Document; and
30.5.2 each Bank against any loss it may sustain or incur
as a result of its funding an Advance requested by a
Borrower hereunder but not made by reason of the non-
fulfilment of one of the conditions to the making of
that Advance as set out in Clause 12.1 (Making of
Advances).
Any Person intending to make a claim pursuant to this Clause
30.5, shall promptly after such Person becomes aware of the
circumstances giving rise to such claim, deliver to the
Company through the Agent a certificate to that effect
specifying the event by reason of which it is entitled to
make such claim and the amount of such claim provided that
noting shall require such Person to disclose any
confidential information relating to the organisation of its
affairs and the Company shall pay such amount to the Agent
for the account of such Person within 3 business days of
receipt of such certificate.
30.6 Unpaid Sums as Advances: Any unpaid sum shall (for the
purposes of this Clause 30 and Clause 17.1 (Increased
Costs)) be treated as an advance and accordingly in this
Clause 30 and Clause 17.1 (Increased Costs), "Advance"
includes any unpaid sum and "Interest Period" in relation to
an unpaid sum includes each such period mentioned in Clause
30.1 (Default Interest Periods).
30.7 Acquisition Indemnity:
30.7.1 Indemnity: The Company shall indemnify the
Arranger, the Agent and each Bank (each an "Indemnified
Party") from time to time within 5 business days of
demand of the Indemnified Party, from and against all
losses, liabilities, claims, costs or expenses
(including legal fees) which the relevant Indemnified
Party may suffer or incur( except to the extent that
the same result from the negligence or willful
misconduct of that Indemnified Party) arising out of
the Offer or the Preference Share Offer (whether or not
made) or any acquisition by Bidco or any Person acting
in concert with Bidco of any Shares or Preference
Shares or arising out of any use of the proceeds of any
Advance. It is agreed that:
(a) each Indemnified Party shall notify the Company in
reasonable detail of any potential claim by it or
its directors, officers or employees on the
Company under this Clause 20.7.1 promptly upon its
becoming aware of that potential claim; and
(b) if the Company wishes any Indemnified Party to
enter into any negotiations with a view to
settlement of any dispute with any third party
likely to give rise to any claims, damages,
liability, costs and expenses for which a claim
may be made under this Agreement, it shall notify
that Indemnified Party accordingly, which
Indemnified Party will then enter into such
negotiations in good faith on a without prejudice
basis but shall not be bound so to settle; and
(c) any payments required to be made by reason of this
indemnity shall be in addition to any other
amounts provided for in the finance Documents or
agreement to be paid in respect of the Facilities.
30.7.2 Provisions of Opinions and Process: The Arranger,
the Agent and each Bank shall give promptly to the
Company such details and copies of all opinions and
process served concerning (or concerning the
circumstances giving rise to) any claims, damages,
liabilities, costs and expenses which may form the
basis of any claim by it on the Company hereunder, as
the Company may reasonably request.
30.7.3 Appointment of Professional Advisers: At the
request of the Company, from time to time, the
Arranger, the Agent and each Bank will discuss with the
Company and will give careful consideration in good
faith to the views of the Company concerning the
appointment of professional advisers in connection with
any such claims, damages, liabilities, costs and
expenses (and in connection with the circumstances
giving rise thereto and any proceedings current,
pending or threatened relating thereto) and the conduct
of any proceedings, and will use reasonable endeavours
to procure that (once appointed) all professional
advisers acting for it in relation thereto shall do
likewise and that where possible and where such party
does not reasonably consider that it is against its
best interest, one firm of professional advisers only
is appointed to represent each of the Arranger, the
Agent and the Banks.
30.7.4 Non-Disclosure: Notwithstanding the foregoing
provisions of this Clause 30.7, none of the Arranger,
the Agent and the Banks shall be required to disclose
to the Company or any other Obligor any matter with
regard to which it is under a duty of non-disclosure.
All information which may be disclosed by any of the
Arranger, the Agent and the Banks pursuant to this
Clause 30.7 shall be disclosed on the same conditions
as to confidentiality, as are set out in Clause 37.
PART 11
FEES, COSTS AND EXPENSES
31. Fees
31.1 Commitment Fee: The Company shall pay to the Agent for the
account of each Bank a commitment fee on the amount of such
Bank's Available Revolving Commitment and Available Term
Commitment form day to day during the period beginning on
the date hereof and ending on the Revolving Facility
Termination Date (in the case of a Bank's Available
Revolving Commitment) and ending on the Term Facility
Termination Date (in the case of a Bank's Available Term
Commitment) (or any earlier date on which the relevant
Commitment of such Bank is cancelled and permanently reduced
to zero). Commitment fees shall be calculated at the rate
of 0.25% per annum on each of the Available Term Commitment
and the Available Revolving Commitment until the date of
making the first Advance and thereafter at a rate equal to
50% of the applicable Margin at such time and shall be
payable in arrear at quarterly intervals during such period
and on the last day of such period (or, if any such date for
payment does not fall on a business day, the next succeeding
day which is a business day).
31.2 Agency Fee: The Company shall pay or procure the payment to
the Agent for the account of the Agent agency fees in the
amounts and at the times stated in the letter from the Agent
to, among others, the Company dated the date hereof.
31.3 Arrangement Fee: The Company shall pay or procure the
payment to the Agent for the account of the Arranger
arrangement fees in the amounts and at the times stated in
the letter from the Agent to, among other, the Company dated
the date hereof.
32. Costs and Expenses
32.1 Transaction Expenses: The Company shall pay to the Agent for
the account of the Agent and the Arranger all reasonable
costs and expenses (including value added tax or any similar
tax and legal fees) incurred by them in the negotiation,
preparation and execution of the Finance Documents and the
completion of the transactions therein contemplated.
32.2 Preservation of Rights: The Company shall from time to time
on demand reimburse the Agent, the Arranger and each Bank
for all reasonable costs and expenses (including value added
tax or any similar tax and including legal fees incurred in
or in connection with the preservation and/or enforcement of
any of the rights of any of them against any Obligor under
any Finance Document.
32.3 Stamp Taxes: The Company shall pay all United Kingdom stamp
and registration Taxes to which this Agreement is or at any
time may be subject and shall indemnify the Agent, the
Arranger and each Bank against any liabilities, costs,
claims and expenses resulting from any failure to pay or any
delay in paying any such Tax.
32.4 Banks' Liability: If any time the Company fails to perform
its obligations under this Clause 32 each Bank shall in the
proportion borne by the sum of its Outstandings to the sum
of the Outstandings of all Banks at the time of demand (or,
where there are not Outstandings, in the proportion borne by
the sum of its Commitments of all the Banks have been
reduced to zero, at the time when the same last exceeded
zero) indemnify the Agent on demand against any loss
incurred by it as a result of such failure and the Company
undertakes to reimburse each Bank forthwith for any payment
made by it pursuant to this Clause 32.4. Provided that for
the purposes of making any calculation under this Clause
32.4 the provision of 4.2 (Overdraft Facility) shall be
ignored.
PART 12
AGENCY PROVISIONS
33. The Agent and Arranger
33.1 Appointment of the Agent: Each Bank hereby appoints the
Agent to act as its agent in connection with the Finance
Documents and authorises the Agent to exercise such rights,
power and discretions as are specifically delegated to it by
the terms of this Agreement together with all such rights,
powers and discretions as are reasonably incidental thereto.
33.2 Agent's Discretions: The Agent may:
(i) assume that:
(a) any representation made by an Obligor in or in
connection with any Finance Document is true;
(b) no Event of Default or Potential Event of Default
has occurred; and
(c) no Obligor is in breach of or in default of its
obligations under any Finance Document
unless the Agent in its capacity as agent for the Banks
has received written notice to the contrary from a
party to this Agreement;
(ii) assume that each Bank's Facility Office is that
identified with its signature below (or, as the case
may be, in the Transfer Certificate or Global Transfer
Certificate pursuant to which it became a party hereto)
until it has received from such Bank a notice
designating some other office of such Bank as its
Facility Office for the purpose of the Facilities and
act upon any such notice until the same is superseded
by a further notice;
(iii) engage and pay for the advice or services of any
lawyers, accountants or other experts whose advice or
services may to it seem necessary, expedient or
desirable and rely upon any advice so obtained;
(iv) rely as to matters of fact which might reasonably be
expected to be within the knowledge of an Obligor upon
a certificate signed by or on behalf of such Obligor;
(v) rely upon any communication or document believed by it
to be genuine;
(vi) refrain from exercising any right, power or discretion
vested in it under any Finance Document unless and
until instructed by an Instructing Group as to whether
or not such right, power or discretion is to be
exercised and, if it is to be exercised, as to the
manner in which it should be exercised; and
(vii) refrain from acting in accordance with any
instructions of an Instructing Group to begin any legal
action or proceeding arising out of or in connection
with any Finance Document until it shall have received
such security as it may require (whether by way of
payment in advance or otherwise) against all costs,
claims, expenses (including legal fees) and liabilities
which it will or may expend or incur in complying with
such instructions.
33.3 Agent's Obligations: The Agent shall:
(i) promptly upon receipt thereof, inform each Bank of the
contents of any notice or document or other information
received by it in its capacity as Agent hereunder from
an Obligor;
(ii) promptly notify each Bank of the occurrence of any
Event of Default or any default by an Obligor in the
due performance of its obligations under this Agreement
of which the Agent has, in its capacity as agent for
the Banks, received written notice from a party to this
Agreement;
(iii) save as otherwise provided herein, act in
accordance with any instructions given to it by an
Instructing Group; and
(iv) if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in it
as agent under any Finance Document.
33.4 Excluded Obligations: Notwithstanding anything to the
contrary expressed or implied herein, neither the Agent
nor the Arranger shall:
(i) be bound to enquire as to:
(a) whether or not any representation made by any
Obligor in or in connection with any Finance
Document is true;
(b) the occurrence or otherwise of any Event of
Default or Potential Event of Default;
(c) the performance by an Obligor of its obligations
under any Finance Document; or
(d) any breach of or default by an Obligor of or under
its obligations under any Finance Document;
(ii) be bound to account to any Bank for any sum or the profit
element of any sum received by it for its own account;
(iii) be bound to disclose to any other Person any
information relating to any member of the Group if such
disclosure would or might in its opinion constitute a breach
of any law or regulation or be otherwise actionable at the
suit of any Person; or
(iv) be under any fiduciary duty towards any Bank or under any
obligations other than those for which express provision is
made in any Finance Document.
33.5 Indemnification: Each Bank shall, on demand by the Agent,
indemnity the Agent in the proportion borne by the sum of
Commitments (if any) to the Commitments of all the Banks
have been reduced to zero, at the time when the same last
exceed zero) against any and all costs, claims, expenses
(including legal fees) and liabilities which the Agent may
incur, otherwise than by reason of its own gross negligence
or wilful misconduct, in acting in its capacity as agent for
the Banks under this Agreement Provided that for the purpose
of any calculation under this Clause 33.5 the provisions of
Clause 4.2 (Overdraft Facility) shall be ignored.
33.6 Exclusion of Liability: Neither the Agent nor the Arranger
accepts any responsibility to any Bank for the accuracy
and/or completeness of the Information Memorandum or any
other information supplied in connection herewith (whether
before or after the date hereof) or for the legality,
validity, effectiveness, adequacy or enforceability of this
Agreement and neither the Agent nor the Arrangers shall be
under any liability to any Bank as a result of taking or
omitting to take any action (whether before or after the
date hereof) in relation to this Agreement save in the case
of gross negligence or wilful misconduct.
33.7 No Action: Each of the Banks agree that it will not assert
or seek to assert against any director, officer or employee
of the Agent or any Arranger any claim it might have against
any of them in respect of the matters referred to in Clause
33.6 (Exclusion of Liability).
33.8 Business with the Group: The Agent and the Arrangers may
accept deposits, from lend money to and generally engage in
any kind of banking or other business with any member of the
Group.
33.9 Resignation: The Agent may (after consultation with the
Company) resign its appointment under the Finance Documents
at any time without assigning any reason therefor by giving
either not less than 30 days' prior written notice to that
effect to each of the other parties hereto or by appointing
any affiliate of the Agent in its stead, provided that no
such resignation shall be effective until a successor for
the Agent is appointed in accordance with the succeeding
provisions of Clause 33.10 (Successor).
33.10 Successor: If the Agent gives notice of its
resignation pursuant to Clause 33.9 (Resignation), then
following consultation with the Banks and with the agreement
of the Company, any reputable and experienced bank or other
financial institution may be appointed as a successor to the
Agent by an Instructing Group and the Company during the
period of such notice but, if no such successor is so
appointed (including by reason of the failure of the Company
to agree), the Agent may appoint such a successor itself.
33.11 Rights and Obligations: If a successor to the Agent is
appointed under the provisions of Clause 33.10 (Successor),
then (i) the retiring Agent shall be discharged from any
further obligation under the Finance Documents but shall
remain entitled to the benefit of the provisions of this
Clause 33 and (ii) its successor and each of the other
parties hereto shall have the same rights and obligations
amongst themselves as they would have had if such successor
had been a party hereto.
33.12 Own Responsibility: It is understood and agreed by
each Bank that it has itself been, and will continue to be,
solely responsible for making its own independent appraisal
of and investigations into the financial condition,
creditworthiness, condition, affairs, status and nature of
each Obligor, and, accordingly, each Bank confirms to the
Agent, the Arranger and the other Banks that it has not
relied and will not hereafter rely on the Agent, the
Arranger or any other Bank:
(i) to check or enquire on its behalf into the adequacy,
accuracy or completeness of any information provided by
an Obligor in connection with this Agreement or the
transactions herein contemplated (whether or not such
information has been or is hereafter circulated to such
Bank by the Agent or the Arranger); or
(ii) to assess or keep under review on its behalf the
financial condition, creditworthiness, condition,
affairs, status or nature of an Obligor.
33.13 Agency Division Separate: In acting as agent hereunder
for the Banks, the Agent shall be regarded as acting through
its agency division which shall be treated as a separate
entity from any other of its divisions or departments and,
notwithstanding the foregoing provisions of this Clause 33,
any information received by some other division or
department of the Agent may be treated as confidential and
shall not be regarded as having been given to the Agent's
agency division.
PART 13
ASSIGNMENTS AND TRANSFERS
34. Benefit of Agreement
This Agreement shall be binding upon and enure to the benefit of
each party hereto and its successors and permitted assigns and
transferees.
35. Assignments and Transfers by the Obligors
No Obligor shall be entitled to assign or transfer all or any of
its rights, benefits and obligations hereunder.
36. Assignments and Transfers by Banks
36.1 Assignment and Transfers by Banks: Any Bank may at any
time assign or transfer in accordance with Clause 36.3 all or
part of such Bank's rights, benefits and obligations under this
Agreement to any bank or financial institution which is a
Qualifying Lender with the consent of the Company (such consent
not to be unreasonably withheld or delayed and not to be required
for assignments or transfers from a Bank to another Bank or to an
Affiliate of that Bank) Provided that no such transfer or
assignment shall be made if the result thereof, at the time of
such transfer or assignment or immediately thereafter, would be
that the Borrower would be liable to pay an additional amount or
amounts pursuant to Clauses 16.1 (Gross-up), 16.2 (Tax Indemnity)
or 17 (Increased Costs) which additional amount or amounts would
not have been payable had no such transfer or assignment
occurred.
36.2 Assignments by Banks: If any Bank assigns all of its
rights, benefits and obligations hereunder in accordance with
Clause 36.1 (Assignments and Transfers by Banks), then, unless
and until the assignee has undertaken to all the other parties
hereto that it shall be under the same obligations towards each
of them as it would have been under if it had been a party
hereto, the other parties hereto shall not be obliged to
recognise such assignee as having the rights against each of them
which it would have had if it had been a party hereto.
36.3 Transfers by Banks: Subject to the provisions of Clause
36.5 (Transfer Fee), if any Bank wishes to transfer all of its
rights, benefits and/or obligations hereunder as contemplated in
Clause 36.1 (Assignments and Transfers by Banks), then such
transfer may be effected by the delivery to the Agent of a duly
completed and executed Transfer Certificate or Global Transfer
Certificate whereupon:
(i) to the extent that in such Transfer Certificate or such
Global Transfer Certificate the Bank party thereto seeks to
transfer its rights and obligations hereunder, each Obligor and
such Bank shall be released from further obligations towards one
another hereunder and their respective rights against one another
shall be cancelled (such rights and obligations being referred to
in this Clause 36.3 as "discharged rights and obligations");
(ii) each Obligor and the Transferee or, as the case may be,
Transferees party thereto shall assume obligations towards one
another and/or acquire the relevant rights against one another
which defer from such discharged rights and obligations only
insofar as such Obligor and such Transferee or Transferees have
assumed and/or acquired the same in place of such Obligor and
such Bank; and
(iii) the Agent, the Arranger, such Transferee or, as the
case may be, Transferees and the other Banks shall acquire the
same rights and assume the same obligations between themselves as
they would have acquired and assumed had such Transferee or
Transferees been original parties hereto as (a) Bank(s) in
respect of the rights and/or obligations acquired or assumed by
it/them as a result of such transfer.
36.4 Irrevocable Offer: Each of the parties hereto confirms that
(i) the delivery to a Transferee of a Transfer Certificate and
the delivery to a number of Transferees of a Global Transfer
Certificate, in each case signed by a Bank constitutes an
irrevocable offer by each of the parties hereto to accept such
Transferee or, as the case may be, Transferees (subject to the
conditions set out herein) as a Bank or Banks party hereto in
respect of the rights and obligations so expressed to be
transferred, (ii) such offer may be accepted by such Transferee
or, as the case may be, Transferees by the execution of such
Transfer Certificate by such Transferee and by such Transferees
by the Execution of such Global Transfer Certificate by such
Transferees and (iii) the provisions of this Agreement shall
apply to the contract between the parties thereto arising as a
result of the acceptance of such offer.
36.5 Transfer Fee: On the date on which a transfer takes effect
pursuant to Clause 36.3 (Transfer by Banks), the Transferee in
respect of such transfer shall pay to the Agent for its own
account a fee of 500 pounds per Transferee.
36.6 Notice of Transfer: The Agent shall promptly notify the
Company of the receipt by it of any Transfer Certificate or
Global Transfer Certificate, identifying in such notice the
parties thereto and the portion of the relevant Commitment(s)
transferred (as specified in such Transfer Certificate or Global
Transfer Certificate).
36.7 Minimum Transfers: Any transfer effected by a Bank to a
Transferee pursuant to Clause 36.3 (Transfer by Banks) comprising
part only and not all of such Bank's rights, benefits and
obligations shall be in a minimum amount of 5,000,000 pounds.
36.8 Reliance: The Agent shall be entitled to rely on any
Transfer Certificate of Global Transfer Certificate delivered to
it in accordance with the foregoing provisions which is complete
and regular on its face as regards its contents and purportedly
signed on behalf of the Bank and a Transferee or, as the case may
be, Transferees and shall have no liability or responsibility to
any party as a consequence of placing reliance upon and acting in
accordance with any such Transfer Certificate or Global Transfer
Certificate.
37. Disclosure of Information
Any Bank may disclose such information about the Company and the
Group as such Bank shall consider appropriate to any actual or
potential assignee or Transfer or to any Person who may otherwise
enter into contractual relations with such Bank in relation to
this Agreement and who, in any such case, has signed a letter in
the form set out in the Seventh Schedule (Form of Confidentiality
Letter) Provided that no such letter shall be required if the
only information so disclosed is already a matter of public
record and has not become so as a result of the breach by such
Bank of any obligation of confidentiality owed by such Bank of
any obligation of confidentiality owed by such Bank to an
Obligor.
PART 14
MISCELLANEOUS
38. Calculations and Evidence of Net Debt
38.1 365 Day Basis: Interest and fees shall accrue from day to
day and shall be calculated on the basis of a year of 365 days
and the actual number of days elapsed.
38.2 No Quotations: If on any occasion one or more Reference
Banks fails to supply the Agent with a quotation required of it
under the foregoing provisions of this Agreement, the rate for
which such quotation was required shall be determined from those
quotations supplied by the other Reference Banks provided there
are no less than two.
38.3 Evidence of Debt: Each Bank shall maintain in accordance
with its usual practice accounts evidencing the amounts from time
to time lent by and owing to it hereunder.
38.4 Control Accounts: The Agent shall maintain on its books a
control account or accounts in which shall be recorded:
(i) the amount of any Advances made hereunder and each Bank's
share therein;
(ii) the amount of any principal, interest or other sums due or
to become due from a Borrower to any of the Banks hereunder and
each Bank's share therein; and
(iii) the amount of any sum received or recovered by the
Agent hereunder and the share of each Bank therein.
38.5 Prima Facie Evidence: In any legal action or proceeding
arising out of or in connection with this Agreement, the entries
made in the accounts and records maintained pursuant to this
Clause 38 shall be prima facie evidence of the existence and
amounts of the obligations of a Borrower therein recorded.
38.6 Bank Certification: A certificate of a Bank as to:
(i) the amount by which a sum payable to it hereunder is to be
increased under Clause 16.1 (Gross-up); or
(ii) the amount for the time being required to indemnify it in
respect of any of the circumstances mentioned in Clause 16.2 (Tax
Indemnity) and Clause 17 (Increased Costs),
shall be prima facie evidence in any legal action or proceeding
arising out of or in connection with this Agreement.
39. Partial Invalidity
If at any time any provision of this Agreement is or becomes
illegal, invalid or unenforceable in any respect under the law of
any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions of this Agreement nor
the legality, validity or enforceability or such provision under
the law of any other jurisdiction shall in any way be affected or
impaired thereby.
40. Remedies, Amendments and Waivers
40.1 Amendment Procedures: The Agent, if it has the prior
written consent of an Instructing Group, and the Company may from
time to time agree in writing to amend the Finance Documents or
to waive, prospectively or retrospectively, any of the
requirements of any of the Finance Documents and any amendments
or waivers so agreed shall be binding on all the Banks and the
Obligors Provided that:
(i) no such waiver or amendment shall subject any party hereto
to any new or additional obligations without the consent of such
party;
(ii) without the prior written consent of all the Banks, no such
amendment or waiver shall:
(a) change the principal amount of or currency of any Advance,
or extend the term of the Facilities or the Term, or, as the case
may be, the Interest Period of, any Advance;
(b) change the Margin, change the amount or currency or extend
the date for any payment of interest, fees or any other amount
payable hereunder to all or any of the Agent and the Banks under
any of the Finance Documents;
(c) amend or modify the definition of Instructing Group; or
(d) amend any provision which contemplates the need for the
consent or approval of all the Banks; and
(iii) notwithstanding any other provisions hereof, neither
the Agent nor the Arranger shall be obliged to agree to any such
amendment or waiver if the same would:
(a) amend or waive any provision of this Clause 40; or
(b) otherwise amend or waive any of the Agent's or Arranger's
rights under any of the Finance Documents or subject the Agent or
the Arranger to any additional obligations thereunder.
40.2 Amendment Costs: If the Company requests any amendment,
supplement, modification or waiver in accordance with Clause 40.1
(Amendment Procedures) then the Company shall, within five
business days of demand of the Agent, reimburse the Agent for all
reasonable costs and expenses (including legal fees) together
with any VAT thereon incurred by the Agent in the negotiation,
preparation and execution of any written instrument contemplated
by Clause 40.1 (Amendment Procedures).
41. Notices
41.1 Written Communication: Each communication to be made
hereunder shall, unless otherwise stated, be made by telex,
telefax or letter.
41.2 Letter or Telex: Any communication or document (unless made
by telefax) to be made or delivered by one Person or another
pursuant to this Agreement shall (unless that other Person has by
fifteen days' written notice to the Agent specified anther
address and/or telex number) be made or delivered to that other
Person for the attention of the Person and at the address or
telex number identified with its signature below (or, as the case
may be, in the transfer Certificate pursuant to which it became a
party hereto) and shall be deemed to have been made or delivered
when such communication or document has been despatched and the
appropriate answerback received (in the case of any communication
made by telex) or (in the case of any communication made by
letter) when left at that address or, as the case may be, seven
days after being deposited in the post first class postage
prepaid in an envelope addressed to it as aforesaid Provided
that any communication or document to be made or delivered to the
Agent shall be effective only when received by the Agent and
provided further than any communication or document which is made
or delivered by the Agent and provided further than any
communication or document which is made or delivered or deemed to
have been made or delivered on a day which is not a business day
in the place of receipt or which is made or delivered or deemed
to have been made or delivered after normal business hours in
such place shall deemed to have been made or delivered at the
opening of business on the immediately succeeding business day in
that place.
41.3 Telefax: Where any provision of this Agreement specifically
contemplates telefax communication made by one Person or another,
such communication shall be made to that other Person at the
relevant telefax number specified by it from time to time for the
purpose and shall be deemed to have been received when
transmission of such telefax communication has been completed.
Each such telefax communication, if made to the Agent by an
Obligor shall be made, or as the case may be, signed by an
Authorised Signatory of such Obligor and shall be expressed to be
for the attention of the account officer or department whose name
has been notified for the time being for that purpose by the
Agent or such Obligor.
42. Law
This Agreement shall be governed by, and construed in accordance
with, English law.
AS WITNESS the hands of the duly authorised representatives of
the parties hereto the day and year first before written.
THE FIRST SCHEDULE
The Original Lender
Name Column A Column B Total
Commitment
Revolving Term
Commitment Commitment
Pounds Pounds Pounds
Credit Suisse 100,000,000 460,000,000 560,000,000
PUBLIC ELECTRICITY SUPPLY LICENCE
FOR
Northern Electric plc
NOTE
The licenceholder is subject to the
environmental obligations set out in
Schedule 9 (Preservation of Amenity
and Fisheries) of the Electricity Act 1989
TABLE OF CONTENTS
PART I TERMS OF THE LICENCE
PART II THE CONDITIONS
1. Interpretation
2. Separate accounts for Separate Businesses
3. Charge restriction conditions: definitions
3A. Restriction of distribution charges
3B. Restriction of supply charges
3C. [ No longer used ]
3D. Restriction of distribution charges and of supply charges: adjustments
3E. Information to be provided to the Director in connection with the
charge restriction conditions
3F. Allowances in respect of security costs
3G. Duration of charge restriction conditions
4. Prohibition of cross-subsidies and of discrimination
5. Obligation on economic purchasing
6. Restriction on own-generation capacity
7. Tariffs
8. Basis of charges for top-up and standby supplies or sales of electricity,
use of system and connection to the system: requirements for transparency
8A. Non-discrimination in the provision of top-up or standby supplies
or sales of electricity use of system and connection to the system
8B. Requirements to offer terms
8C. Functions of the Director
9. Distribution system planning standard and quality of service
10. Generation security standard
11. Distribution Code
12. Restriction on use of certain information
13. Compliance with the Grid Code
14. Security arrangements
15. Pooling and Settlement Agreement
16. Conditions of supply affecting tariff customers' statutory rights
17. Licensee's apparatus on tariff customers' side of meter
18. Code of practice on payment of bills
19. Methods for dealing with tariff customers in default
20. Provision of services for persons who are of pensionable age or disabled
21. Standards of performance
22. Efficient use of electricity
23. Complaint handling procedure
24. Relations with relevant consumers' committee
25. Health and safety of employees
26. Requirement to enter certain agreements
27. Disposal of relevant assets
28. Provision of information to the Director
29. Payment of fees
SCHEDULE 1: Description of authorised area
SCHEDULE 2: Terms as to revocation
SCHEDULE 3: Supplementary provisions of the charge restriction conditions
PART A Principles for attribution of the fossil fuel levy and payments in lieu
thereof, transmission connection point charges, remote transmission
asset rentals and distribution losses
PART B EHV premises
PART C Excluded services
PART D Regulated distribution unit categories
PART E Calculation of factor in respect of distribution losses
PART F Electricity Purchase costs
PART I: TERMS OF THE LICENCE
1. The Secretary of State, in exercise of the power conferred
by Section 6(a)(c), and Section 6(6) and Section 7 of the
Electricity Act 1989 (hereinafter referred to as the "Act")
hereby licenses Northern Electric plc (registered in England and
Wales under number 2366942) as public electricity supplier to
supply electricity to any premises in the authorised area
designated in Schedule 1 below during the period specified in
paragraph 3 below, subject to the Conditions set out in Part II
and Schedule 3 below (hereinafter referred to as the
"Conditions").
2. The Conditions are subject to modification or amendment in
accordance with their terms or with Sections 11, 14 or 15 of the
Act. This licence is further subject to the terms as to
revocation specified in Schedule 2.
3. This licence shall come into force on the transfer date
appointed under Section 65 of the Act and unless revoked in
accordance with the provisions of Schedule 2.
3. This licence shall come into force on the transfer date
appointed under Section 65 of the Act and unless revoked in
accordance with the provisions of Schedule 2 shall continue until
determined by not less than 25 years' notice in writing given by
the Secretary of State to the licensee, such notice not to be
served earlier than a date being 10 years after the licence comes
into force.
JOHN WAKEHAM
26th March 1990
Secretary of State for Energy
PART II: THE CONDITIONS
Condition 1: Interpretation
1. Unless the contrary intention appears, words and expressions
used in the Conditions shall be construed as if they were in an
Act of Parliament and the Interpretation Act 1978 applied to them
and references to an enactment shall include any statutory
modification or re-enactment thereof after the date when this
licence comes into force.
2. Any word or express defined for the purposes of any
provision of Part 1 of the Act shall, unless the contrary
intention appears, have the same meaning when used in the
Conditions.
3. In the Conditions unless the context otherwise requires:
"affiliate" in relation to the licensee means any holding
company or subsidiary of the licensee or any subsidiary of a
holding company of the licensee, 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 Section is not in force at the date of grant of
this licence as if such Section were in force at such date.
"Auditors" means the licensee's auditors for the time being
holding office in accordance with the requirements of the
Companies Act 1985.
"authorised" in relation to any business or activity means
authorised by licence granted under Section 6 or exemption
granted under Section 5 of the Act
"authorised area" means the area from time to time comprised
in Schedule 1 to this licence.
"authorised electricity operator" means any person (other
than the licensee) who is authorised to generate, transmit
or supply electricity and for the purposes of Conditions 8A
to 8C inclusive shall include any person who has made
application to be so authorised which application has not
been refused and any person transferring electricity to or
from England and Wales across an interconnector or who has
made application for use of interconnector which has not
been refused.
"connection charges" means charges made or levied or to be
made or levied for the carrying out (whether before or after
the date on which the licence comes into force) of works and
provision and installation of electrical plant, electric
lines and ancillary meters in constructing or modifying
entry and exit points on the licensee's distribution system
together with charges in respect of maintenance and repair
of such items in so far as not otherwise recoverable as use
of system charges and in respect of disconnection and the
removal of electrical plan, electric lines and ancillary
meters following disconnection, all as more fully described
in paragraphs 4 and 7 of Condition 8, whether or not such
charges are annualised.
"customer" means any person supplied or entitled to be
supplied with electricity by the licensee or, as the case
may be, by any affiliate or related undertaking of the
licensee but shall not include any authorised electricity
operator in its capacity as such.
"declared net capacity" means in relation to generation
plant, the highest generation of electricity, at the main
alternator terminals, which can be maintained for an
indefinite period of time without causing damage to the
plant less so much of that capacity as is consumed by the
plant.
"designated" in relation to any agreement or arrangement or
code or proposal therefor means designated by the Secretary
of State or on his behalf by such means as he may consider
appropriate whether for the purposes of any Condition of
this licence or otherwise, but so that an agreement or
arrangement or code or proposal therefor so designated may
at the discretion of the Secretary of State cease to be
designated if amended or modified in any material respect.
"Distribution Business" means the business of the licensee
or any affiliate or related undertaking in or ancillary to
the distribution (whether for its own account or that of
third parties) of electricity through the licensee's
distribution system and shall include any business in
providing connections to the licensee's distribution system.
"Distribution Code" means the Distribution Code required to
be drawn up pursuant to Condition 11, as from time to time
revised with the approval of the Director.
"electricity purchase contract" shall include any
contract or arrangement under which provision is made for
the making or receipt of payments by reference to the
difference between
(a) an amount specified or ascertainable under the term of
such contract or arrangement; and
(b) the price at which electricity is sold or purchased
under the Pooling and Settlement
Agreement or any component of either of such prices;
and
"electricity sale contract" shall be construed accordingly.
"equivalent megawatt" in circumstances where demand is only
measured in megavolt amperes means megavolt amperes
converted into megawatts using for this purpose a power
factor of 0.9 megawatts per megavolt ampere or such other
factor as may with the approval of the Director be taken as
being appropriate having regard to electrical
characteristics of the supply, and cognate expressions shall
be construed accordingly.
"financial year" bears the meaning given to it as paragraph
1 of Condition 2
"Fuel Security Code" means the document of that title
designated as such by the Secretary of State as from time to
time amended.
"Generation Business means the business (if any) in the
generation of electricity being a business involving own-
generation sets or in which there is an accountable interest
in generation sets, as defined for the purposes of Condition
6.
"generation set" means any plant or apparatus for the
production of electricity and shall where appropriate
include a generating station comprising more than one
generation set.
"Grid Code" means the Grid Code required to be drawn up by
the Transmission Company and approved by the Director as
from time to time revised with the approval of the Director.
"grid supply point" means any point where electricity is
delivered to the licensee's distribution system from the
transmission system.
"interconnectors" means the electric lines and electrical
plant and meters owned or operated by the Transmission
Company solely for the transfer of electricity to or from
the transmission system into or out of England and Wales.
"licensee" means Northern Electric plc (registered in
England and Wales under number 2366942) and (where the
context so requires) shall include any Area Board in respect
of which the licensee is the successor company.
"licensee's distribution system" means the system of
electric lines situated wholly or partly within the
authorised area owned or operated by the licensee for
distribution of electricity between the grid supply points
or generation sets or other entry points and the points
where it is delivered to customers or authorised electricity
operators, and includes any remote transmission assets owned
by the Transmission Company operated by the licensee and any
electrical plant and meters owned or operated by the
licensee in connection with the distribution of electricity
and references to the distribution system of any authorised
electricity operator shall be construed accordingly.
"megawatt" or "MW" includes an equivalent megawatt.
"0.1 MW customers" means any customer other than an over 0.1
MW customer in its capacity as such.
"0.1 MW premises" means any premises other than over 0.1 MW
premises.
"over 0.1 MW customer" means a customer supplied at over 0.1
MW premises, but shall not include such customer in so far
as supplied at 0.1 MW premises.
"over 0.1 MW premises" means premises supplied by the
licensee at which the average of the maximum monthly demands
in the three months of highest maximum demand in any period
of twelve consecutive months commencing on or after January
1993 exceeds one tenth of a megawatt.
"Pooling and Settlement Agreement" means the agreement of
that title approved (or to be approved) by the Secretary of
State or by the Director as from time to time amended with
the approval of the Director (where so required pursuant to
its terms) and shall where the context permits include the
Initial Settlement Agreement approved (or to be approved) by
the Secretary of State (as from time to time amended with
the consent of the Secretary of State).
"related undertaking" in relation to the licensee means any
undertaking in which the licensee has a participating
interest as defined by Section 260 of the Companies Act
1985 as substituted by Section 22 of the Companies Act 1989
and if that section is not in force at the date of grant of
this licence as if such section were in force at such date.
"relevant consumers' committee" means the committee
appointed by the Director under Section 2 of the Act for the
area for which the licensee is the public electricity
supplier.
"relevant premises" means any premises of or occupied by the
licensee open to customers in the normal course of the
licensee's business.
"remote transmission assets" means any electric lines,
electrical plant or meters owned by the Transmission Company
which (a) are embedded in the distribution system of the
licensee or any authorised electricity operator other than
the Transmission Company and are not directly connected by
lines or plant owned by the Transmission Company to a sub-
station owned by the Transmission Company and (b) are by
agreement between the Transmission Company and the licensee
or such authorised electricity operator operated under the
direction and control of the licensee or such authorised
electricity operator.
"Retail Price Index" means the general index of retail
prices published by the Department of Employment each month
in respect of all items or:
(a) if 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, such index for such month or months as the
Director may after consultation with the licensee determine
to be appropriate in the circumstances; or
(b) if there is a material change in the basis of the
index, such other index as the Director may after
consultation with the licensee determine to be appropriate
in the circumstances.
"Second-Tier Supply Business" means the authorised business
(if any) of the licensee or any affiliate or related
undertaking as a private electricity supplier.
"Separate Business" means each of the Distribution, Supply,
Second-Tier Supply and Generation Businesses taken
separately from one another and from any other business of
the licensee, but so that where all or any part of such
business is carried on by an affiliate or related
undertaking of the licensee such part of the business as is
carried on by that affiliate or related undertaking shall be
consolidated with any other such business of the licensee
(and of any other affiliate or related undertaking) so as to
form a single Separate Business.
"standby" means the periodic or intermittent supply or sale
of electricity:
(a) to an authorised electricity operator to make good any
shortfall in the availability of electricity to that
operator for the purposes of its supply of electricity to
persons seeking such supply; or
(b) to a customer of the licensee to make good any
shortfall between the customer's total supply requirements
and that met either by its own generation or by electricity
supplied by an authorised electricity operator other than
the licensee such standby supply or sale being provided at
such entry or exit point on the licensee's distribution
system as the operator or customer may request.
"Supply Business" means the authorised business of the
licensee as public electricity supplier in the authorised
area, but shall not include any activities forming part of
the Distribution Business.
"top-up" means the supply or sale of electricity on a
continuing or regular basis:
(a) to an authorised electricity operator to make good any
shortfall in the availability of electricity (including,
where that operator is using the licensee's distribution
system, to make good any distribution losses on that system)
to that operator for the purposes of its supply of
electricity to persons seeking such supply; or
(b) to a customer of the licensee to make good any
shortfall between the customer's total supply requirements
and that met either by its own generation or by electricity
supplied by an authorised electricity operator other than
the licensee such top-up supply or sale being provided at
such entry or exit point on the licensee's distribution
system as the operator or customer may request.
"transfer date" means such date as may be appointed by the
Secretary of State by order under Section 65 of the Act.
"Transmission Company" means The National Grid Company plc
or any other holder for the time being of a licence to
transmit electricity in England and Wales under Section
6(1)(b) of the Act.
"transmission system" means the system consisting (wholly or
mainly) of high voltage electric lines owned or operated by
the Transmission Company and used for the transmission of
electricity from one generating station to a sub-station or
to another generating station, or between sub-stations or to
any interconnector, and includes any electrical plant and
meters owned or operated by the Transmission Company in
connection with the transmission of electricity but shall
not include any remote transmission assets.
"undertaking" bears the meaning ascribed to that expression
by Section 259 of the Companies Act 1985 as substituted by
Section 22 of the Companies Act 1989 and if that section is
not in force at the date of grant of this licence as if such
section were in force at such date.
"use of system" means use of the licensee's distribution
system for the transport of electricity by the licensee or
any authorised electricity operator.
"use of system charges" means charges made or levied or to
be made or levied by the licensee for the provision of
services as part of the Distribution Business to any
authorised electricity operator or to the licensee for the
purposes of its Supply Business or Second-Tier Supply
Business as more fully described at paragraph 3 of Condition
8 and at paragraph C2 of Part C of Schedule 3 to this
licence; but shall not include connection charges.
4. Any reference to a numbered Condition (with or without a
suffix letter) of Schedule is a reference to the Condition (with
or without a suffix letter) or Schedule bearing that number in
this licence, and any reference to a numbered paragraph (with or
without a prefix or a suffix letter) is a reference to the
paragraph bearing that number (with or without a prefix or a
suffix letter) in the Condition or Schedule in which the
reference occurs.
5. In construing the Conditions, the heading or title of any
Condition or paragraph shall be disregarded.
6. Where, in the Conditions, any obligation of the licensee is
required to be performed within a specified time limit that
obligation shall be deemed to continue after that time limit if
the licensee fails to comply with that obligation within that
time limit.
7. The provisions of Section 109 of the Act shall apply for the
purposes of the delivery or service of any documents, directions
or notices to be delivered or served pursuant to any Condition,
and directions issued by the Director pursuant to any Condition
shall be delivered or served as aforesaid.
Condition 2: Separate accounts for Separate Businesses
1. The first financial year of the licensee shall run from 1st
April 1990 to 31st March 1991, and thereafter each financial year
of the licensee shall run from 1st April to the following 31st
March.
2. The remaining paragraphs of this Condition apply for the
purpose of ensuring that the licensee (and any affiliate or
related undertaking) maintains accounting and reporting
arrangements which enable separate accounts to be prepared for
each Separate Business and showing the financial affairs of each
such Separate Business.
3. The licensee shall in respect of each Separate Business:
(a) keep or cause to be kept for the period referred to in
Section 222(5)(b) of the Companies Act 1985 and in the
manner referred to in that section such accounting records
in respect of each Separate Business as would by Section 221
of the Companies Act 1985 be required to be kept in respect
of each such business if it were carried on by a separate
company, so that the revenues, costs, assets, liabilities,
reserves and provisions of, or reasonably attributable to,
each Separate Business are separately identifiable in the
books of the licensee (and any affiliate or related
undertaking) from those of any other business; and
(b) prepare on a consistent basis from such accounting
records in respect of:
(i) the financial year commencing on 1st April 1990
and each subsequent financial year, accounting
statements comprising a profit and loss account, a
balance sheet and a statement of source and application
of funds, together with notes thereto, and showing
separately in respect of each Separate Business and in
appropriate detail the amounts of any revenue, cost,
asset, liability, reserve or provision which has been
either:
(A) charged from or to any other business
(whether or not a Separate Business) together
with a description of the basis of that charge;
or
(B) determined by appointment or allocation
between any Separate Business and any other
business (whether or not a Separate Business)
together with a description of the basis of the
apportionment or allocation; and
(ii) the first six months of the financial year
commencing on 1st April 1990 and of each subsequent
financial year, an interim profit and loss account; and
(c) procure, in respect of the accounting statements
prepared in accordance with this Condition in respect of a
financial year, a report by the Auditors and addressed to
the Director stating whether in their opinion those
statements have been properly prepared in accordance with
this Condition and give a true and fair view of the
revenues, costs, assets, liabilities, reserves and
provisions of, or reasonably attributable to, the Separate
Business to which the statements relate; and
(d) deliver to the Director a copy of the account referred
to in sub-paragraph (b)(ii) above, the Auditors' report
referred to in sub-paragraph (c) above and the accounting
statements referred to in sub-paragraph (b)(i) above as
soon as reasonably practicable, and in any event not later
than three months after the end of the period to which it
relates in the case of the account referred to in sub-
paragraph (b)(ii) and six months after the end of the
financial year to which they relate in the case of the
accounting statements and Auditors' report referred to in
sub-paragraph (b)(i) and (c) above.
4. (a) Unless the Director so specifies in directions issued
for the purposes of this Condition or with his prior
written approval the licensee shall not in relation to the
accounting statements in respect to a financial year change
the bases of charge or apportionment or allocation referred
to in sub-paragraph (b)(i) of paragraph 3 from those
applied in respect of the previous financial year.
(b) Where, in relation to the accounting statements in
respect of a financial year, the licensee has changed such
bases of charge or apportionment or allocation from those
adopted for the immediately preceding financial year, the
licensee shall, if so directed in directions issued by the
Director, in addition to preparing accounting statements on
the bases which it has adopted, prepare such accounting
statements on the bases which applied in respect of the
immediately preceding financial year.
5. Accounting statements in respect of a financial year
prepared under sub-paragraph (b)(i) of paragraph 3 shall, so far
as reasonably practicable and unless otherwise approved by the
Director having regard to the purposes of this Condition:
(a) have the same content and format (in relation to each
Separate Business) as the annual accounts of the licensee
prepared under Section 226 and, where appropriate, Section
227 of the Companies Act 1985 and conform to the best
commercial accounting practices including Statements of
Accounting Practice issued by the member bodies of the
Consultative Committee of Accounting Bodies currently in
force; and
(b) state the accounting policies adopted; and
(c) (with the exception of the part of such statement which
shows separately the amounts charged, apportioned or
allocated and describes the bases of charge or apportionment
or allocation respectively and with the exception of the
accounting statements relating to the Second-Tier Supply
Business), be published with the annual accounts of the
licensee.
6. Unless the accounting statements prepared under sub-
paragraph (b)(i) of paragraph 3 are prepared on the current cost
basis as provided by the alternative accounting rules, the
licensee shall, unless otherwise agreed by the Director, in
addition to preparing those accounting statements under that
paragraph, prepare accounting statements for each Separate
Business covering the same period, which shall comprise and show
separately:
(a) a profit and loss account, a balance sheet and a
statement of source and application of funds, together with
notes thereto, which shall:
(i) include in respect of current cost assets amounts
determined on the current cost basis as provided by the
alternative accounting rules; and
(ii) show or disclose the information and other matters
required by the alternative accounting rules to be
shown or disclosed in accounts where the amounts
included in respect of assets covered by any items
shown in those accounts have been determined on any
basis mentioned in paragraph 31 of Section C of Part II
of Schedule 4 to the Companies Act 1985;
(b) in respect of each Separate Business the adjusted
amount of any such provision for depreciation as is referred
to in paragraph 32(2) of Section C of Part II of Schedule 4
to the Companies Act 1985 and the items shown in the profit
and loss account of the Separate Business for the relevant
period which are affected by the determination of amounts on
the current cost basis as provided by the alternative
accounting rules, including the profit (or loss) before
taxation; and
(c) such other current information as is referred to in the
Handbook as the Director may reasonably require
and shall deliver the same, together with an Auditors' report
prepared in relation to the current cost basis accounting
statements in the form referred to in sub-paragraph (c) of
paragraph 3, to the Director within the time limit referred to in
sub-paragraph (d) of paragraph 3, and shall (with the exception
of the part of such statement which shows separately the amounts
charged, apportioned or allocated and describes the bases of
charge or apportionment or allocation respectively and with the
exception of the accounting statements relating to the Second-
Tier Supply Business) publish the same with the annual accounts
of the licensee.
7. References in this Condition to costs or liabilities of, or
reasonably attributable to, any Separate Business shall be
construed as excluding taxation, capital liabilities which do not
relate principally to a particular Separate Business, and
interest thereon; and references to any profit and loss account
shall be construed accordingly.
8. Without prejudice to paragraph 1 of Condition 1, references
in this Condition to sections of the Companies Act 1985 are
references to those provisions as amended, substituted or
inserted by the relevant provisions of the Companies Act 1989 and
if such provisions of the Companies Act 198i are not in force at
the date of grant of this licence shall be construed as if such
provisions were in force at such date.
9. For the purposes of paragraph 6:
"alternative accounting rules" means the rules set out in Section
C of Part II of Schedule 4 to the Companies Act 1985.
"current cost assets" means assets of any description mentioned
in paragraph 31 Section C of Part II of Schedule 4 to the
Companies Act 1985.
"the Handbook" means the handbook issued by the Accounting
Standards Committee of the Consultative Committee of Accounting
Bodies (CCAB Limited) or any successor body entitled "Accounting
for the effects of changing prices: a Handbook" in its current
edition for the time being or in the event that no such handbook
shall be in issue such guidance or publication as may be issued
in replacement or substitution therefor.
Condition 3: Charge restriction conditions: definitions
1. In this Condition and in Conditions 3A to 3G and Schedule 3
to this licence:
"attributed" means when used in relation to the fossil fuel levy
or payments in lieu thereof or transmission connection point
charges or remote transmission asset rentals or distribution
losses or transmission costs or allowed distribution costs, or in
relation to attributing electricity purchase or sale contracts
and electricity purchase costs to regulated customers and other
customers, attributed in accordance with the principles set out
in Part A of Schedule 3 and attribute, attributed, attributable
and attribution shall be construed accordingly.
"average charge per unit distributed" means the distribution
revenue in the relevant year divided by the regulated quantity
distributed in that year.
"average charge per unit supplied" means the supply revenue in
the year divided by the quantity supplied in that year.
"average charge per regulated unit supplied" means the regulated
supply revenue in the relevant year divided by the regulated
quantity supplied in that year.
"average specified rate" means the average of the daily base
rates of Barclays Bank plc current from time to time during the
period in respect of which the calculation falls to be made.
"charge restriction conditions" means Conditions 3 to 3G
inclusive together with Schedule 3 to this licence, as from time
to time modified or replaced in accordance therewith or pursuant
to Sections 11, 14 or 15 of the Act.
"distribution losses" means units unaccounted for on the
licensee's distribution system, measured as being the difference
between the units metered on entry into the system and the units
metered on leaving the system.
"distribution revenue" means the revenue (measured on an accruals
basis) derived by the licensee from the provision of distribution
services in the relevant year, after deduction of:
(i) an amount equal to such part of the total amount payable in
that relevant year to the Transmission Company (measured on an
accruals basis) in respect of transmission connection point
charges and remote transmission assets rentals and which would
otherwise be included in distribution revenue by reason of being
recovered in that relevant year by the licensee in its use of
system charges, as falls to be attributed to the regulated
quantity distributed in that relevant year; and
(ii) value added tax (if any) and any other taxes based
directly on the amounts so derived.
"distribution services" means all services provided by the
licensee as part of its Distribution Business other than excluded
services.
"EHV premises" means those premises to which units are delivered
by the licensee which fall to be treated as EHV premises in
accordance with Part B of Schedule 3.
"EHV units" means units distributed by the licensee which are
delivered or deemed to be delivered to EHV premises.
"electricity purchase costs" means the licensee's purchase costs
of electricity calculated in accordance with the principles in
Part F of Schedule 3.
"excluded services" means those services provided by the licensee
which in accordance with the principles set out in Part C of
Schedule 3 fall to be treated as excluded services.
"fifth relevant year" means the relevant year commencing 1st
April 1994.
"HV units" means units (other than EHV units) distributed by the
licensee which are delivered to premises connected to the
licensee's distribution system at a voltage at or higher than
1000 volts.
"interconnector charges" means charges levied by the
Interconnectors Business of the Transmission Company and payable
by the Supply or Second-Tier Supply Business of the licensee in
respect of use of the interconnector for the transfer of
electricity into England and Wales.
"LV units" means units distributed by the licensee which are
delivered to premises connected to the licensee's distribution
system at a voltage less than 1000 volts.
"LV1 units" means LV units which are distributed by the licensee
outside night-time periods to domestic premises or small non-
domestic premises where the appropriate use of system charges
apply different rates in night-time periods as opposed to other
times of day, for the avoidance of doubt including the use of
system charges under the tariffs specified in paragraph D2 of
Part D of Schedule 3.
"LV2 units" means LV units which are distributed by the licensee
to domestic premises or small non-domestic premises:
(a) during night-time periods, where the appropriate use of
system charges apply different rates in night-time periods as
opposed to other times of the day; or
(b) where the appropriate use of system charges are
incorporated into tariffs which restrict availability of supply
to specified off-peak periods,
for the avoidance off doubt including the use of system charges
under the tariffs specified in paragraph D3 of Part D of Schedule
3.
"LV3 units" means LV units other than LV1 and LV2 units, for the
avoidance of doubt including units distributed under the tariffs
specified in paragraph D4 of Part D of Schedule 3.
"maximum average charge per unit distributed" means the charge
calculated in accordance with the formula in paragraph 1 of
Condition 3A.
"maximum average charge per regulated unit supplied" means the
charge calculated in accordance with the formula in paragraph 1
of Condition 3B.
"metered" means, in relation to any quantity distributed or
supplied, as measured by a meter installed for such purpose or
(where no such meter is installed or it is not reasonably
practicable to measure the quantity by such meter) as otherwise
reasonably calculated.
quantity supplied" means the aggregate quantity of units supplied
by the licensee in the relevant year metered at the points of
supply (whether or not in the authorised area of the licensee).
"regulated customer" means a person other than the licensee who
in the calendar year ending in relevant year t-1 was supplied at
0.1 MW premises.
"regulated distribution unit category" means as the case may be
HV units or LV1 units or LV2 units or LV3 units.
"regulated quantity distributed" means the aggregate quantity of
units distributed (both for the Supply Business of the licensee
and on behalf of third parties under use of system) by the
licensee through the licensee's distribution system in relevant
year t metered at exit points on leaving the licensee's
distribution system but excluding for this purpose:
(a) units distributed for the purpose of supply to premises
outside the licensee's authorised area; and
(b) EHV units.
"regulated quantity supplied" means the aggregate quantity of
units supplied by the licensee to regulated customers in the
relevant year metered at the points of supply.
"regulated supply revenue" means that part of the supply revenue
(measured on an accruals basis) derived by the licensee from
supplies to regulated customers.
"regulated unit supplied" means a unit supplied by the licensee
to a regulated customer.
"relevant year" means a financial year commencing on or after 1st
April 1990.
"relevant year t" means that relevant year for the purposes of
which any calculation falls to be made; "relevant year t-1" means
the relevant year preceding relevant year t or, in respect of the
period prior to 1st April 1990, the period of 12 calendar months
commencing on 1st April 1989; and similar expressions shall be
construed accordingly.
"remote transmission asset rental" means any rent or other
periodic payment payable by the Distribution Business of the
licensee to the Transmission Company in respect of remote
transmission assets forming part of the licensee's distribution
system.
"sixth relevant year" means the relevant year commencing 1st
April 1995.
"supply" includes supply outside the authorised area, standby and
top-up supply and sale and any other sales of electricity by the
licensee to persons other than customers; and "supplied" and
similar expressions shall be construed accordingly.
"supply charges" means all charges (including charges for the
provision of distribution services and standing charges) made by
the licensee in respect of electricity supplied by the licensee
other than charges for the provision of excluded services by the
licensee.
"supply revenue" means the revenue (measured on an accruals
basis) derived by the licensee from supply charges after
deduction of value added tax (if any) and any other taxes based
directly on the amounts so derived.
"transmission charges" means charges levied by the Transmission
Company payable by the Supply or the Second-Tier Supply Business
of the licensee in respect of the transmission of electricity,
but for the avoidance of doubt shall exclude transmission
connection point charges and remote transmission asset rentals.
"transmission connection point charges" means charges levied by
the Transmission Company as connection charges by direct
reference to the number or nature of the connections between the
licensee's distribution system and the transmission system and
payable by the Distribution Business of the licensee.
"unit" means a kilowatt hour.
Condition 3A: Restriction of distribution charges
Basic Formula
1. Without prejudice to Condition 3F the licensee shall in
setting its charges for the provision of distribution services
use its best endeavors to ensure that in any relevant year the
average charge per unit distributed shall not exceed the maximum
average charge per unit distributed calculated in accordance with
the following formula:
Mdt = Pdt -Kdt
where:
Mdt means the maximum average charge per unit distributed in
relevant year t.
Pdt is derived from the following formula:
Pdt = (PU+PM) . Grt. PIDt + (PL.(A1t-Lt.PILt) divided by Dt
where:
PU means an amount equal to 176,200,000 pounds sterling
PM means an amount equal to 22,200,000 pounds sterling
Grt is derived from the following formula:
formula
where, for the relevant year beginning 1st April 1995, GRt-1
equals 1.
SUM means the summation across the regulated distribution
unit categories i.
Poi means in respect of each regulated distribution unit
category i set out below in column 1 the value equal
to that amount set opposite that category in column 2.
1 2
regulated distribution
unit category i value (p)
HV 0.4723
LV1 2.0911
LV2 0.3273
LV3 1.9284
Dit means that number of units in each regulated distribution
unit category i distributed in relevant year t.
Dit-1 means that number of units in each regulated distribution
unit category i distributed in relevant year t-1.
Cdt means a notional figure representing the number of customers
in the authorised area defined (for the purpose of this term
Cdt only) for each relevant year, as the figure in the table
below.
relevant year beginning:
1st April 1994 1,446,000
1st April 1995 1,456,000
1st April 1996 1,466,000
1st April 1997 1,476,000
1st April 1998 1,486,000
1st April 1999 1,496,000
provided that: for any relevant year t beginning on or after 1st April
2000, Cdt shall equal 1,496,000.
Cdt1 means the number equal to Cdt in relevant year t-1.
PIDt is derived from the following formula:
formula
where, for the relevant year beginning 1st April 1995, PIDt-1 equals 1.
RPIt means the percentage change (whether of a positive or a
negative value) in the arithmetic average of the Retail Price
Index numbers published or determined with respect to each
of the six months July to December (inclusive) in relevant
year t-1 and the arithmetic average of the Retail Price Index
numbers published or determined with respect to the same
months in relevant year T-2.
Xdt means for each relevant year in column 1 below the figure
set opposite column 2 below:
1 2
relevant year beginning;
1st April 1995 2
1st April 1996 13
provided that: for any relevant year t beginning on or after
1st April 1997, Xdt shall equal 3.
PL means an amount equal to 3.0656 p.
Alt means an amount (in units) representing
allowed distribution losses in relevant year
t, being the allowed percentage of the
adjusted units distributed (calculated as
provided in paragraph E5 of Part E of
Schedule 3) where in respect of each relevant
year t, the allowed percentage shall equal
that percentage which the aggregate of
adjusted distribution losses (calculated as
provided in paragraphs E2 to E5 of Part E of
Schedule 3) over the preceding relevant years
(commencing with the twelve-month period from
1st April 1989, or, if the number of
preceding relevant years exceeds nine,
relevant year t-10) bears to the aggregate of
adjusted units distributed (calculated as
aforesaid) over the corresponding relevant
years: save that for this purpose adjusted
distribution losses in respect of the twelve-
month period from 1st April 1989 shall be
derived by applying the initial relevant loss
percentage (calculated as provided in
paragraphs E6 to E8 of Part E of Schedule 3)
to the adjusted units distributed in that
period.
Lt means in respect of relevant year t, adjusted
grid supply point purchases less adjusted
units distributed (calculated as provided in
paragraphs E2 to E5 of Part E of Schedule 3).
PILt is derived from the following formula:
formula
where, for the relevant year beginning 1st April 1995, PILt-1 equals 1.
Dt means the regulated quantity distributed
in relevant year T.
Kdt means the correction factor per unit
(whether of a positive or a negative
value) to be applied to the average
charge per unit distributed in relevant
year t which (subject to paragraph 4 of
Condition 3D) is derived from the
formula in paragraph 2 of this
Condition.
and any term defined for the purposes of this paragraph 1 shall
have the same meaning in each paragraph of this Condition.
Formula for Kdt as used in Paragraph 1
2. For the purposes of paragraph 1, the term Kdt shall be
calculated in accordance with the following formula:
formula
provided that: notwithstanding the above, the value of
Kdt for the sixth relevant year shall be
that value required by Condition 3A in
the licence in the form in force on 31st
March 1995.
Where:
Rdt-1 means the distribution revenue in
relevant year T-1.
Dt-1 means the regulated quantity distributed
in relevant year t-1.
Mdt-1 means maximum average charge per unit
distributed in relevant year t-1.
Idt means that interest rate in relevant
year t which is equal to, where Kdt
(taking no account of Id for this
purpose) has a positive value, the
average specified rate plus 4, or where
Kdt (taking no account of Id for this
purpose) has a negative value, the
average specified rate.
Condition 3B: Restriction of supply charges
Basis Formula
1. Without prejudice to Condition 3F the licensee shall in
setting its supply charges use its best endeavours to ensure that
in any relevant year the average charge per regulated unit
supplied shall not exceed the maximum average charge per
regulated unit supplied calculated in accordance with the
following formula:
Mst = Pst + Yt - Kst
where:
Mst means the maximum average charge per
regulated unit supplied in relevant year t.
Pst means that amount in relevant year T
which is derived from the following
formula.
Pst = (PF+PC.C1+PQ.Q1)PI1 divided by Q1
Where:
PF means 11,532,622 pounds sterling
PC means 16.61 pounds sterling
Ct means a notional figure representing the
number of regulated customers (for the
purpose of this defined term Ct only)
defined, for each relevant year, as the
figure in the table below.
Relevant year beginning:
1st April 1994 1,438,142
1st April 1995 1,448,142
1st April 1996 1,448,142
1st April 1997 1,468,142
PQ means 0.0969 pence
Qt means the regulated quantity supplied in
relevant year t.
PIt is derived from the following formula:
formula
where, for the relevant year beginning 1st April 1994, Pit-1
equals 1.
RPIt means the percentage change (whether of
a positive or a negative value) in the
arithmetic average of the Retail Price
Index numbers published or determined
with respect to each of the six months
July to December (inclusive) in relevant
year t-1 and the arithmetic average of
the Retail Price Index numbers published
or determined with respect to the same
months in relevant year t-2.
Xs means 2.
Yt means the allowed cost, in pence per
regulated unit supplied in relevant year
t, as calculated in accordance with the
formula at paragraph 2 of this
Condition.
Kst means the correction factor per
regulated unit (whether of a positive or
negative value) to be applied to the
average charge per regulated unit
supplied in relevant year t which
(subject to paragraph 4 of Condition 3D)
is derived from the following formula.
formula
Provided that:
(a) notwithstanding the above, the value for
Kst for the fifth relevant year shall,
subject to sub-paragraph (b) below, be
the value notified by the licensee to
the Director no later than three months
after the commencement of the fifth
relevant year. Such notification shall
be accompanied by a statement showing
how the value for Kst is derived,
together with its reasons for the basis
adopted in calculating such value; and
(b) unless the Director objects in writing
to the licensee to such value within 3
months of receipts of the aforementioned
notification (giving reasons for such
objection) such value shall be the value
as notified to the Director. Where the
Director has served a notice of
objection on the licensee, the licensee
shall, no later than 14 days after
receipt of such notice, notify the
Director, by a further statement served
on the Director in accordance with sub-
paragraph (a), of the proposed value for
Kst for the fifth relevant year.
Where:
Rst-1 means the regulated supply revenue in
relevant year t-1.
Qt-1 means the regulated quantity supplied in
relevant year t-1.
Qt means the regulated quantity supplied in
relevant year t.
Mst-1 means the maximum average charge per
regulated unit supplied in relevant year T-1.
It means that interest rate in relevant
year t which is equal to, where Kst
(taking no account of I for this
purpose) has a positive value, the
average specified rate plus 2 or where
Kst (taking no account of I for this
purpose) has a negative value the
average specified rate.
Formula for Yt as used in paragraph 1
2. For the purpose of paragraph 1, the term Yt (being the
allowed cost, in pence per regulated unit supplied in relevant
year t) shall be calculated in accordance with the following
formula:
Yt = E1 + F1 + T1 + U1
Where:
Et means the licensee's average electricity
purchase costs in pence per regulated
unit supplied in relevant year t, as
calculated in accordance with the
principles set out in Part F of Schedule
3 and attributed to regulated customers.
Ft means the fossil fuel levy or an amount
in lieu thereof per regulated unit
supplied in relevant year t, being an
amount in pence per regulated unit
supplied derived by:
(a) aggregating the amounts payable
(measured on an accruals basis) by
the licensee:
(i) in respect of the fossil fuel
levy pursuant to Regulations
made under Section 33 of the
Act in respect of relevant
year t; and
(ii) in lieu of the fossil fuel
levy on purchases of
electricity other than
leviable electricity, as
calculated in accordance with
paragraph A3 of Schedule 3 in
respect of relevant year t;
and
(b) attributing a share of those
amounts to quantities supplied in
relevant year t to such regulated
customers in accordance with the
principles set out in Part A of
Schedule 3; and
(c) dividing the resulting amount by
the regulated quantity supplied in
relevant year t.
Tt means the allowed transmission cost per
regulated unit supplied in relevant year
t, derived by:
(a) aggregating those charges:
(i) paid by the licensee to the
Transmission Company as
transmission charges
attributed to regulated
customers in relevant year t
after adding any amounts paid
or deducting any amounts
received in relevant year t in
respect of any under or over
payment in the preceding
relevant year t-1; and
(ii) payable (measured on an
accruals basis) by the
licensee to the
Interconnectors Business of
the Transmission Company as
interconnector charges
attributed to regulated
customers in relevant year t;
and
(b) dividing the resulting amount by
the regulated quantity supplied in
relevant year t.
Ut means the allowed distribution cost per
regulated unit supplied in relevant year
t, derived by:
(a) aggregating the amounts payable
(measured on an accruals basis) in
relevant year t by the licensee in
respect of distribution services
attributed to regulated customers
to the Distribution Business of the
licensee and (in respect of similar
services, whether or not the same
are excluded services for the
purposes of any licence held by the
relevant third party) to the
distribution business of any third
party; and
(b) dividing the resulting amount by
the regulated quantity supplied in
relevant year t.
but so that no amount may be taken into
account more than once for the purpose
of any calculation of the component
parts of the formula.
Condition 3C: [No longer used]
Condition 3D: Restriction of distribution charges and of supply
charges: adjustments
1. The following paragraphs shall have effect separately in
relation to distribution charges regulated under Condition 3A and
supply charges regulated under Condition 3B.
2. If, in respect of any relevant year, the average charge per
unit exceeds the maximum average charge per unit by more than the
permitted one-year percentage, the licensee shall furnish an
explanation to the Director and in the next following relevant
year the licensee shall not effect any increase in charges unless
it has demonstrated to the reasonable satisfaction of the
Director that the average charge per unit would not be likely to
exceed the maximum average charge per unit in that next following
relevant year.
3. If, in respect of any two successive relevant years, the sum
of the amounts by which the average charge per unit has exceeded
the maximum average charge per unit is more than the permitted
two-year percentage, then in the next following relevant year the
licensee shall, if required by the Director, adjust its charges
such that the average charge per unit would not be likely, in the
judgment of the Director, to exceed the maximum average charge
per unit in that next following relevant year.
4. If, in respect of two successive relevant years, the average
charge per unit is less than 90 per cent of the maximum average
charge per unit, the Director, after consultation with the
licensee, may direct that:
(a) in calculating Kdt for the purposes of paragraph 1 of
Condition 3A in respect of the next following relevant year,
there shall be substituted for Rdt-1, in the formula at paragraph
1 of Condition 3A such figure as the Director may specify being
not less than Rdt, and not more than 0.90 (Dt-1.Mdt-1); or
(b) in calculating Kst for the purposes of paragraph 1 of
Condition 3B in respect of the next following relevant year,
there shall be substituted for Rst-1 in the formula at paragraph
1 of Condition 3B such figure as the Director may specify being
not less than Rst-1, and not more than O.90(Qt-1.M st-1).
5. In this Condition:
"per unit" means per unit distributed in a relevant year or per
regulated unit supplied in the fifth relevant year or any
subsequent relevant year, as the context requires.
"permitted one-year percentage" means 3 per cent of the maximum
average charge per unit distributed or 4 per cent of the maximum
average charge per regulated unit supplied, as the context
requires.
"permitted two-year percentage" means 4 per cent of the maximum
average charge per unit distributed in the second of the relevant
years or 5 per cent of the maximum average charge per regulated
unit supplied in the second of the relevant years, as the context
requires.
Provided that, in respect of each of the above definitions, where
the relevant year referred to is one of the first four relevant
years it shall have effect as if the word "regulated" was omitted
and shall be construed in accordance with the charge restrictions
conditions in force during that year.
Condition 3E: Information to be provided to the Director in
connection with the charge restriction conditions
1. Where the licensee is intending to make any change in:
(a) charges for provision of distribution services regulated
under Condition 3A;
or
(b) tariff supply charges regulated under Condition 3B the
licensee shall (unless otherwise agreed by the Director) not
later than the date of publication of such changes provide the
Director with:
(i) a written forecast of the maximum average charge per unit
distributed or the maximum average charge per regulated unit
supplied, together in each case with its components, in respect
of the relevant year t in which such change is to take effect and
in respect of the next following relevant year t+1; and
(ii) a written estimate of the maximum average charge per unit
distributed or the maximum average charge per regulated unit
supplied, together in each case with its components, in respect
of the relevant year t-1 immediately preceding the relevant year
in which the change is to take effect unless a statement
complying with paragraph 8 in respect of relevant year t-1 has
been furnished to the Director before the publication of the
proposed change.
2. (a) No later than 1st April in each relevant year, the
licensee shall send to the Director a statement of principles in
accordance with which the licensee intends to attribute, together
with a statement of the licensee's provisional attribution of,
electricity purchase or sale contracts to regulated customers and
to other customers.
(b) Where, at any time during a relevant year, the licensee
intends to change the principles of attribution or any
provisional attribution specified in the statement under
sub-paragraph (a) or a previous statement under this sub-
paragraph (b) or to purchase or sell an electricity purchase or
sale contract, the change or the provisional attribution in
relation to the purchase or sale shall be specified in a written
statement signed by a person authorised to sign a statement by
the Directors of the licensee which statement shall not provide
for a retrospective change of principles or for any
re-attribution of payments already made or any payment where the
event giving rise to that payment has already occurred (whether
or not it is then due).
3. If within three months of the commencement of any relevant
year t the licensee has not made any such change in charges as is
referred to in paragraph 1, the licensee shall provide the
Director with a written forecast of the maximum average charge
per unit distributed or of the maximum average charge per
regulated unit supplied in respect of relevant year t.
4. The Director may issue directions providing that any
forecast or estimate provided in accordance with paragraphs 1 or
3 shall be accompanied by such information as regards the
assumptions underlying the forecast or estimate as may be
necessary to enable the Director to be satisfied that the
forecast or estimate has been properly prepared on a consistent
basis.
5. Not later than 31st January in each relevant year t the
licensee shall send to the Director a written estimate of the
average electricity purchase costs in pence per unit supplied and
the quantity supplied calculated as provided under paragraph 2 of
Condition 3B (but as if in that paragraph the words "regulated"
and " attributed to regulated customers" were omitted) in respect
of the relevant year and the next following relevant year t+l.
6. [No longer used]
7. Subject as provided in (b) below, not later than six weeks
after the commencement of any relevant year t, the licensee shall
send to the Director a statement as to:
(a) whether or not the provisions of Condition 3D are likely to
be applicable in consequence of the average charge per unit
distributed or regulated unit supplied (as the case may be) in
the preceding relevant year t-1 or the two preceding relevant
years t-1 and t-2; and
(b) its best estimate as to the relevant correction factor Kdt,
or (other than in the fifth relevant year) Kst (as the case may
be) to be applied in calculating the maximum average charge per
unit distributed or regulated unit supplied (as the case may be)
in respect of relevant year t.
8. Not later than three months after the end of a relevant year
the licensee shall send the Director a statement, in respect of
that relevant year, showing the specified items referred to in
paragraph 10.
9. The statement referred to in the preceding paragraph shall
be:
(a) accompanied by a report from the Auditors that in their
opinion (i) such statement fairly presents each of the specified
items referred to in paragraph 10 in accordance with the
requirements of the charge restriction conditions and (ii) the
amounts shown in respect of each of those specified items are in
accordance with the licensee's accounting records which have been
maintained in respect of each of the relevant Separate Businesses
in accordance with Condition 2; and
(b) certified by a director of the licensee on behalf of the
licensee that to the best of his knowledge, information and
belief having made all reasonable enquiries:
(i) there is no amount included in its calculations under
Condition 3A and Schedule 3 which represents other than:
(aa) bona fide consideration for the provision of distribution
services in the course of its Distribution Business; or
(bb) an amount permitted under the charge restriction conditions
to be so included;
(ii) there is no amount included in its calculations under
Condition 3B and Schedule 3 which represents other than:
(aa) bona fide consideration for electricity supplied to
regulated customers; or
(bb) an amount permitted under the charge restriction conditions
to be so included;
(iii) there is no amount included in its calculations of
allowed security costs under Condition 3F which represents other
than an amount permitted under the charge restriction conditions
to be so included;
(iv) no service has been treated as an excluded service which was
not properly so treated and no amount included in the revenues in
respect thereof, represents other than bona fide consideration
for the provision of the excluded service to which it relates;
(v) all amounts which should properly be taken into account for
the purposes of the charge restriction conditions have been taken
into account; and
(vi) there is no amount included in its calculations under
Condition 3B and Schedule 3 in respect of electricity purchase or
sale costs which does not result from an attribution or method of
attribution contained in the statement under either paragraph 2
(a) or (b).
10. The specified items to be contained in the statement
referred to in paragraph 8 shall be the following:
(a) the regulated quantity distributed;
(b) the quantity distributed in each regulated distribution unit
category;
(c) the average charge per unit distributed:
(d) the quantity supplied;
(e) the average charge per unit supplied;
(f) the average charge per regulated unit supplied;
(g) the regulated quantity supplied;
(h) the amount in respect of the terms ALt and Lt in paragraph 1
of Condition 3A calculated as therein provided;
(i) the licensee's average electricity purchase costs per
regulated unit supplied calculated as provided under paragraph 2
of Condition 3B;
(j) the fossil fuel levy per regulated unit supplied, calculated
as provided under paragraph 2 of Condition 3B;
(k) the allowed transmission cost per regulated unit supplied,
calculated as provided under paragraph 2 of Condition 3B;
(l) the allowed distribution cost per regulated unit supplied,
calculated as provided under paragraph 2 of Condition 3B;
(m) the statements and information referred to in paragraphs A6,
B2, C8, D1, E10 and F7 of Schedule 3;
(n) the information referred to at paragraph 8 of Condition 3F;
(o) the licensee's average electricity purchase costs in pence
per unit supplied calculated as provided under paragraph 2 of
Condition 3B but as if in that paragraph the words "regulated"
and "attributed to regulated customers" were omitted.
Provided that the statement to be provided in the fifth relevant
year in respect of the immediately preceding relevant year shall
contain the information required by Paragraph 10 of Condition 3E
in the licence in the form in force on 31st March 1 994
11. Where the Director issues directions in accordance with
paragraph 9 of Condition 3F or paragraphs A7 or B3 or C9 or D5 or
E11 or F8 of Schedule 3 then such directions shall not have
effect from a date earlier than the commencement of the relevant
year to which the statement last furnished to the Director
pursuant to paragraph 8 prior to the issue of the directions
related, unless such statement (or the accompanying report or
certificate under paragraph 9) or any statement, report or
certificate in respect of an earlier relevant year was incorrect
or was misleading in any material respect.
12. Where the Director issues such directions as are referred to
in the preceding paragraph the Director may require the licensee
to provide a revised statement in respect of such of the
specified items as may be affected by the directions, and the
licensee shall comply with such request.
Condition 3F: Allowances in respect of security costs
1. At any time during a security period, the licensee may give
notice in writing to the Director suspending, with effect from
the date of receipt of the notice by the Director, application of
such of the charge restriction conditions as may be specified in
the notice for the unexpired term of the security period.
2. At any time during a security period, the Director may
(having regard to his duties under the Act) by means of
directions:
(a) suspend or modify for the unexpired term of the security
period the charge restriction conditions or any part or parts
thereof; or
(b) introduce for the unexpired term of the security period new
charge restriction conditions in either case, so as to make such
provision as in the opinion or estimation of the Director is
requisite or appropriate:
(i) to enable the licensee to recover by means of increased
charges an amount estimated as being equal to the licensee's
allowed security costs during such period;
(ii) to ensure that such part of the amount referred to in
sub-paragraph (i) above as is estimated as being equal to the
allowed security costs incurred by the licensee as costs in its
Distribution Business are recovered by means of appropriate
equitable increases on the charges made by the licensee in its
Distribution Business; and
(iii) to ensure that such part of the amount referred to in
sub-paragraph (i) above as is estimated as being equal to the
allowed security costs incurred by the licensee as costs in its
Supply Business and its Second-Tier Supply Business respectively
are recovered by appropriate equitable increases in the charges
made by the licensee in those Businesses and the licensee shall
comply with the terms of any directions so issued.
3. At any time following a security period, the Director may
(following such consultation with the licensee and others as the
Director may consider appropriate)issue directions suspending or
modifying the charge restriction conditions or any part or parts
thereof or replacing such directions as may have been made during
the security period and introducing such new charge restriction
conditions as in the opinion of the Director are appropriate in
all the circumstances (including at the Director's discretion an
appropriate adjustment having regard to any profit gained or
foregone by the licensee during the security period), and the
licensee shall comply with any directions so issued.
4. At any time within three months after the issue of
directions by the Director under paragraph 3, the licensee may
serve on the Director a disapplication request in respect of such
of the charge restriction conditions or any part or parts thereof
as are specified in the request.
5. If within three months of the receipt by the Director of the
disapplication request referred to in paragraph 4, the Director
has either not agreed in writing to such disapplication request
or has not made a reference to the Monopolies Commission under
Section 12 of the Act relating to the modification of the charge
restriction conditions, the licensee may deliver one month's
written notice to the Director terminating the application of the
charge restriction conditions (or any part or parts thereof) as
were specified in the disapplication request.
6. Subject to paragraphs 7 and 9, the licensee shall in any
relevant year be entitled to recover an aggregate amount equal to
its allowed security costs in that year or (insofar as not
previously recovered) any previous year, by means of appropriate
equitable increases on the charges made by the licensee in each
of its Distribution,
Supply and Second-Tier Supply Businesses.
7. Paragraph 6 shall not apply in so far as such allowed
security costs:
(a) were otherwise recovered by the licensee; or
(b) were taken into account by the Director in setting charge
restriction conditions by means of directions issued under
paragraph 3 above.
8. The licensee shall following the end of each relevant year
provide to the Director, as being one of the specified items to
be contained in the statement referred to at paragraph 8 of
Condition 3E, details in respect of that relevant year of:
(a) the amount of the licensee's allowed security costs; and
(b) the aggregate amounts charged under paragraph 6 on account
of the licensee's allowed security costs; and
(c) the bases and calculations underlying the increases in
charges made by the licensee in its Distribution, Supply and
Second-Tier Supply Businesses under paragraph 6.
9. Where the Director is satisfied that the licensee has
recovered amounts in excess of the allowed security costs, the
Director may issue directions requiring the licensee to take such
steps as may be specified to reimburse customers of or purchasers
from the Distribution, Supply and Second-Tier Supply Business (as
the case may be) for the excess amounts charged to them, and the
licensee shall comply with any directions so issued provided that
if the excess amounts relate to allowed security costs paid to
any authorised electricity operator, the licensee shall not be
obliged to make any such reimbursement unless and until it has
recovered such costs from the relevant authorised electricity
operator.
10. No amounts charged by the licensee under this Condition
(whether or not subsequently required to be reimbursed) shall be
taken into account for the purpose of applying the charge
restriction provisions of Conditions 3A and 3B.
11. In this Condition:
"allowed security cost" shall have the meaning ascribed to that
term in the Fuel Security Code.
"security period" means a period commencing on the date on which
any direction issued by the Secretary of State under Section
34(4)(b) of the Act enters effect and terminating on the date
(being not earlier than the date such direction, as varied, is
revoked or expires) as the Director, after consultation with such
persons (including without limitation, licence holders liable to
be principally affected) as he shall consider appropriate, may
with the consent of the Secretary of State by notice to all
licence holders determine after having regard to the views of
such persons.
Condition 3G: Duration of charge restriction conditions
1. The charge restriction conditions shall apply so long as
this licence continues in force but shall cease to have effect
(in whole or in part, as the case may be) if the licensee
delivers to the Director a disapplication request made in
accordance with paragraph 2 and:
(a) the Director agrees in writing to the disapplication
request; or
(b) their application (in whole or in part) is terminated by
notice given by the licensee in accordance with either paragraph
4 or paragraph 5.
2. A disapplication request pursuant to this Condition 3G shall
(a) be in writing addressed to the Director, (b) specify the
charge restriction conditions (or any part or parts thereof) to
which the request relates and (c) state the date from which the
licensee wishes the Director to agree that the specified charge
restriction conditions shall cease to have effect.
3. Save where the Director otherwise agrees, no disapplication
following delivery of a disapplication request pursuant to this
Condition 3G shall have effect earlier than that date which is
the later of:
(a) a date being not less than 18 months after delivery of the
disapplication request; and either
(b) in the case of distribution charges regulated under
Condition 3A, 31st March 2000; or
(c) in the case of supply charges regulated under Condition 3B,
31st March 1998.
4. If the Director has not made a reference to the Monopolies
Commission under Section 12 of the Act relating to the
modification of the charge restriction conditions before the
beginning of the period of 12 months which will end with the
disapplication date, the licensee may deliver written notice to
the Director terminating the application of such of the charge
restriction conditions (or any part or parts thereof) as are
specified in the disapplication request with effect from the
disapplication date or a later date.
5. If the Monopolies Commission makes a report on a reference
made by the Director relating to the modification of the charge
restriction conditions (or any part or parts thereof) specified
in the disapplication request and such report does not include a
conclusion that the cessation of such charge restriction
conditions, in whole or in part, operates or may be expected to
operate against the public interest, the licensee may within 30
days after the publication of the report by the Director in
accordance with Section 13 of the Act deliver to him written
notice terminating the application of such charge restriction
conditions with effect from the disapplication date or later.
6. A disapplication request or notice served under this
Condition may be served in respect of a specified geographic area
Condition 4: Prohibition of cross-subsidies and of discrimination
1. The licensee shall procure that no Separate Business gives
any cross-subsidy to, or receives any cross-subsidy from, any
other business of the licensee or an affiliate or related
undertaking of the licensee (whether or not a Separate Business).
For the purpose of this paragraph, those parts of the Supply
Business and of the Second- Tier Supply Business consisting in
the supply of electricity to over 0.1 MW customers and in the
supply of electricity to 0.1 MW customers shall each be treated
as a Separate Business.
2. The licensee shall not, and shall procure that any affiliate
or related undertaking of the licensee shall not, supply or offer
to supply electricity to any 0.1 MW customer or group of 0.1 MW
customers at prices or on other terms affecting the financial
value of the supply which differ from those on which it supplies
or offers to supply electricity to any other 0.1 MW customer or
group of 0.1 MW customers except in so far as such differences
reasonably reflect differences in the costs associated with such
supply.
3. The licensee shall not, and shall procure that any affiliate
or related undertaking of the licensee shall not, supply or sell
or offer to supply or sell electricity (including under any
electricity sale contract) to any one relevant purchaser or
person seeking to become a relevant purchaser on terms as to
price which are materially more or less favourable than those on
which it supplies or sells or offers to supply or sell
electricity (including under any electricity sale contract) to
comparable relevant purchasers. For these purposes, due regard
shall be had to the circumstances of supply or sale to such
purchasers including (without limitation) volumes, load factors,
conditions of interruptibility, location of premises being
supplied and date and duration of the agreement.
4. For the purposes of paragraph 3:
"relevant purchaser" means any purchaser of electricity from the
licensee or any affiliate or related undertaking of the licensee
other than a 0.1 MW customer.
Condition 5: Obligation on economic purchasing
1. Subject to paragraph 6, the provisions of paragraph 2 shall
apply separately in relation to purchases of electricity from the
following sources:
(a) qualifying renewable generation;
(b) qualifying non-fossil generation; and
(c) generation from any source other than as referred to in
sub-paragraphs (a) and (b) above.
2. In respect of each category referred to in paragraph 1
above, and subject to paragraph 4 below, the licensee shall:
(a) itself purchase;
(b) procure any affiliate of the licensee to purchase; and
(c) in so far as it is able through the exercise of voting
rights or otherwise to do so, procure any related undertaking of
the licensee or any defined undertaking to purchase
electricity at the best effective price reasonably obtainable
having regard to the sources available.
3. In determining the effective price at which electricity is
purchased by the licensee or any affiliate or related undertaking
of the licensee or any defined undertaking, regard shall be had
to any payments made or received or to be made or received for
the grant of or pursuant to any electricity purchase contract.
4. In the discharge of its obligations under paragraph 2 above,
the licensee may additionally have regard to any considerations
liable to affect its ability and that of any affiliate of the
licensee to discharge its obligations under this Condition in the
future, including the future security, reliability and diversity
of sources of electricity available for purchase.
In this Condition (and subject to paragraph 6) references to
qualifying renewable generation and to qualifying non-fossil
generation shall refer to generation from capacity of that
description which:
(i) has been contracted by the licensee or any defined
undertaking under an arrangement certified by the Secretary of
State under Section 32(7) of the Act which was entered into prior
to the date this licence enters force; or
(ii) is available to be contracted under arrangements to be
produced to the Director in satisfaction of an obligation imposed
on the licensee by Order made under Section 32 of the Act after
this licence enters force.
6. Notwithstanding that generation may previously have been
contracted as being qualifying renewable generation or qualifying
non-fossil generation (as the case may be), it shall cease to be
so treated to the extent that:
(a) the licensee (or any affiliate or related undertaking of the
licensee or any defined undertaking) enjoys contractual freedom
to vary or discontinue its obligation to purchase such
generation; and
(b) capacity from which qualifying renewable or non-fossil
generation (as the case may be) is otherwise contracted by the
licensee or any affiliate or related undertaking of the licensee
or any defined undertaking is equal to or exceeds the aggregate
capacity specified in any Orders previously made under Section 32
of the Act and continuing in force, as being required to be
available to the licensee at that time or in respect of any
future period covered by such Orders.
7. Paragraphs 2, 3 and 4 of this Condition shall apply mutatis
mutandis where the licensee exercises a discretion or (by
agreement or otherwise) varies the terms of an existing contract
(whether or not entered into prior to the date of entry into
force of this licence) in such a manner as to alter the effective
price under such contract.
8. In this Condition:
"defined undertaking" means Non-Fossil Purchasing Agency Limited
or other entity through which the licensee enters into qualifying
arrangements within the meaning of Section 33 of the Act.
''purchase" includes the acquisition of electricity from sources
falling to be treated as own-generation for the purpose of
Condition 6, and the purchase of electricity under electricity
Purchase contracts.
"qualifying non-fossil generation" , shall include generation
from renewable sources which for the time being has not been
contracted as being qualifying renewable generation.
Condition 6: Restriction on own-generation capacity
1. The licensee shall procure that, with effect from the
transfer date, the Generation Business of the licensee is held as
a Separate Business by or through a wholly-owned subsidiary of
the licensee.
2. Save with the prior written consent of the Director or in
the circumstances described in paragraph 3 below, the licensee
shall at all times ensure that the sum of the amounts in
megawatts (calculated as provided under paragraphs 4 and 5 below)
represented by the declared net capacity of the licensee's
own-generation sets and the appropriate share of the declared net
capacity of generation sets in which the licensee has an
accountable interest shall not exceed 500 megawatts.
3. Where the licensee is in breach of paragraph 2 by reason of
the acquisition of own- generation sets or an accountable
interest in other generation sets in consequence of the
occurrence of a specified event affecting the operator or any
third party, the licensee shall forthwith notify the Director for
the purpose of obtaining such consent as is specified in
paragraph 2.
4. For the purposes of calculating the limit under paragraph 2
and subject to paragraph 5, there shall be attributed to the
licensee:
(a) the whole of the declared net capacity represented by
own-generation sets; and
(b) the appropriate share (namely the share representing the
licensee's economic interest therein) of the declared net
capacity of generation sets in which it has an accountable
interest ascertained in such manner as the licensee with the
approval of the Director may determine.
5 Where the Director is satisfied that by virtue of the
licensee's economic interest (ascertained in such manner as the
Director may determine) therein:
(a) generation sets in which the licensee has only an
accountable interest should more properly be treated as
own-generation sets; or
(b) own-generation sets should more properly be treated as sets
in which the licensee only has an accountable interest; or
(c) own-generation sets, or generation sets in which the
licensee has an accountable interest, should not be treated as
falling in either category; or
(d) generation sets not declared as sets in which the licensee
has an accountable interest, should be treated as generation sets
in which the licensee has an accountable interest
the Director may issue directions to that effect.
6. For the purposes of this Condition and subject to paragraphs
5 and 9, the licensee shall have an accountable interest in a
generation set in circumstances where (such generation set not
being an own-generation set of the licensee):
(a) the operator is a related undertaking of the licensee or any
affiliate of the licensee; or
(b) the licensee or any affiliate of the licensee 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
(c) the licensee or any affiliate of the licensee has (directly
or indirectly):
(i) any beneficial shareholding interest in the operator; or
(ii) any beneficial underlying interest in the generation set; or
(iii) provided or agreed to provide finance to the operator
otherwise than on arm's length terms; or
(iv) 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 generation sets
and is entitled under a contract of not less than 5 years'
duration:
(aa) to a share of the declared net capacity of the generation
set; or
(bb) to a share of the declared net capacity of a generation set
being the own-generation set of another authorised electricity
operator or in which such authorised electricity operator has an
accountable interest, under arrangements for the exchange of
capacity entitlement or supplies of electricity representing such
entitlement between the licensee or its affiliate and such
authorised electricity operator.
7. Paragraph 6 shall be applied in relation to the calculation
of an accountable interest in generation sets of any other
authorised electricity operator as if the references therein to
the licensee were replaced by references to such authorised
electricity operator.
8. References in paragraph 6 to contracts giving entitlements
to a share of declared net capacity shall include electricity
sale or purchase contracts where rights under such contract are
exercisable by reference to an identified generation set or to
amounts generated at such set.
9. The licensee shall not be deemed to have an accountable
interest in a generation set where:
(a) such generation set is owned and operated by the National
Grid Company plc or a wholly-owned subsidiary thereof under a
licence granted pursuant to Section 6 of the Act; or
(b) the licensee's interest arises wholly under the terms of the
Pooling and Settlement Agreement or (other than as provided in
paragraph 8) under any electricity purchase or sale contract; or
(c) the licensee's interest arises solely by virtue of
arrangements for the sharing with the operator of any generation
set of the risks associated with changes in the price of fuel
used by the generation set during the term of any such contract
as is referred to in paragraph 6 or 8 above.
10. The licensee shall, on each such occasion as it provides to
the Director separate accounts for the Generation Business
pursuant to paragraph 3(b)(i) of Condition 2 and at any other
time upon request of the Director, provide to the Director a
statement:
(a) confirming compliance with paragraphs 1, 2 and 3 above as at
the date of the statement and throughout the period since the
last such statement; and
(b) identifying (in such detail and with such supporting
documents or information as the Director may require) the amount
of capacity in megawatts represented by the declared net capacity
of own-generation sets attributable to the licensee and the
appropriate share of the licensee in the declared net capacity of
generation sets in which the licensee has an accountable
interest, as at the date of the statement.
11. Where the Director is satisfied that the basis of
calculation used by the licensee is not in conformity with
paragraphs 4 and 5 above, the Director may issue directions
specifying an alternative basis of calculation, and the basis of
calculation by the licensee 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.
12. In this Condition.
"operator" means, in relation to any generation set, the
authorised electricity operator or any person for the time being
responsible (under contract or otherwise) for the generation or
sale of electricity from such plant.
"own-generation set" means any generation set the majority
beneficial ownership of which is vested in the licensee or an
affiliate of the licensee or in respect of which the licensee or
an affiliate of the licensee is the operator and references to
own-generation sets of another authorised electricity operator
shall be construed as if the references herein to the licensee
were replaced by references to that authorised electricity
operator.
"specified event" means any such event as is described in
paragraph (1)(f) of Schedule 2 to this licence but for this
purpose as if references to the licensee were replaced by
references to the operator or third party in question.
"underlying interest" in relation to any generation set means any
interest arising by reason of the licensee or affiliate or any
related undertaking of the licensee or affiliate (whether alone
or with others):
(a) holding or being entitled to acquire an interest in the land
on which the generation set, 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 generation set, or any part thereof, is built;
(c) owning any electrical plant situated on or operated as a
unit with the generation set (and for such purpose, any
electrical plant or equipment to the possession of which the
licensee, 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 generation set 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 generation set
or any part thereof.
Condition 7: Tariffs
1. The licensee shall ensure that any tariffs fixed under
Section 18 of the Act shall be so framed as separately to
identify:
(a) the use of system element in the licensee's charges; and
(b) the charges in respect of the supply of electricity to
tariff customers.
2. The licensee shall provide to the Director copies of the
tariffs from time to time fixed by the licensee pursuant to
Section 18 of the Act no later than publication thereof.
3. Where the Director considers that by reason of the
complexity of any such tariffs fixed by the licensee, simplified
explanatory statements are required or expedient for the
understanding of tariff customers, the Director may direct the
licensee to draw up such explanatory statements and thereafter to
publish them with the tariffs to which they relate.
Condition 8: Basis of charges for top-up and standby supplies or
sales of electricity, use of system and connection to the system:
requirements for transparency
1. The licensee shall as soon as practicable and in any event
within 28 days after this licence has come into force prepare
statements in a form approved by the Director setting out the
basis upon which the charges for the provision of top-up and
standby supplies or sales of electricity (as part of the Supply
or Second-Tier Supply Business), for use of system and for
connection to the licensee's distribution system (in each case,
as part of the Distribution Business) will be made, in all cases
in such form and with such detail as shall be necessary to enable
any person to make a reasonable estimate of the charges to which
he would become liable for the provision of such services, and
(without prejudice to the foregoing) including the information
set out in paragraphs 2 to 4 below.
2. The statement referred to in paragraph 1 shall in respect of
the provision of top-up and standby supplies or sales of
electricity set out the methods by which and the principles on
which the charges for the provision of each of top-up supplies or
sales and standby supplies or sales will be made.
3. The statement referred to in paragraph 1 shall in respect of
use of system include:
(a) a schedule of charges for transport of electricity under use
of system;
(b) a schedule of adjustment factors to be made in respect of
distribution losses, in the form of additional supplies required
to cover those distribution losses;
(c) the methods by which and the principles on which the charges
(if any) for availability of distribution capacity on the
licensee's distribution system will be made;
(d) a schedule of charges in respect of meter reading,
accounting and administrative services; and
(e) a schedule of the charges (if any) which may be made for the
provision and installation of any meters or electrical plant at
entry or exit points, the provision and installation of which is
ancillary to the grant of use of system, and for the maintenance
of meters or electrical plant.
4. The statement referred to in paragraph 1 shall in respect of
connections to the licensee's distribution system include:
(a) a schedule listing those items (including the carrying out
of works and the provision and installation of electric lines or
electrical plant or meters) of significant cost liable to be
required for the purpose of connection (at entry or exit points)
to the licensee's distribution system for which connection
charges may be made or levied and including (where practicable)
indicative charges for each such item and (in other cases) an
explanation of the methods by which and the principles on which
such charges will be calculated:
(b) the methods by which and the principles on which any charges
will be made in respect of extension or reinforcement of the
licensee's distribution system rendered (in the licensee's
discretion) necessary or appropriate by virtue of providing
connection to or use of system to any person seeking connection;
(c) the methods by which and the principles on which connection
charges will be made in circumstances where the electric lines or
electrical plant to be installed are (at the licensee's
discretion) of greater size or capacity than that required for
use of system by the person seeking connection;
(d) the methods by which and the principles on which any charges
(including any capitalised charge) will be made for maintenance,
repair, and replacement required of electric lines, electrical
plant or meters provided and installed for making a connection to
the licensee's distribution system;
(e) the methods by which and principles on which any charges
will be made for disconnection from the licensee's distribution
system and the removal of electrical plant, electric lines and
ancillary meters following disconnection.
5. The basis on which charges for the provision of top-up and
standby supplies or sales of electricity shall be set shall
reflect the costs directly incurred in the provision thereof,
together with a reasonable rate of return on the capital
represented by such costs.
6. Use of system charges for those items referred to in
paragraph 3 shall be determined on the same basis as is applied
by the licensee when determining the use of system element of
tariffs fixed pursuant to Section 18 of the Act and Condition 7.
7. Connection charges for those items referred to in paragraph
4 shall be set at a level which will enable the licensee to
recover:
(a) the appropriate proportion of the costs directly or
indirectly incurred in carrying out any works, the extension or
reinforcement of the licensee's distribution system or the
provision and installation, maintenance, repair, and replacement
or (as the case may be) removal following disconnection of any
electric lines, electrical plant or meters; and
(b) a reasonable rate of return on the capital represented by
such costs.
8. If so requested and subject to paragraphs 9 and 14 below,
the licensee shall, as soon as practicable and in any event
within 28 days (or where the Director so approves such longer
period as the licensee may reasonably require having regard to
the nature and complexity of the request) after the date referred
to in paragraph 15 below give or send to any person making such
request a statement showing present and future circuit capacity,
forecast power flows and loading on the part or parts of the
licensee's distribution system specified in the request and fault
levels for each distribution node covered by the request and
containing:
(a) such further information as shall be reasonably necessary to
enable such person to identify and evaluate the opportunities
available when connecting to and making use of the part or parts
of the licensee's distribution system specified in the request;
and
(b) if so requested, a commentary prepared by the licensee
indicating the licensee's views as to the suitability of the part
or parts of the licensee's distribution system specified in the
request for new connections and transport of further quantities
of electricity.
9. The licensee shall include in every statement given or sent
under paragraph 8 above the information required by that
paragraph except that the licensee may:
(a) with the prior consent of the Director omit from any such
statement any details as to circuit capacity, power flows,
loading or other information, disclosure of which would, in the
view of the Director, seriously and prejudicially affect the
commercial interests of the licensee or any third party; and
(b) omit information the disclosure of which would place the
licensee in breach of Condition 12.
10. The licensee may periodically revise the information set out
in and, with the approval of the Director, alter the form of the
statements prepared in accordance with paragraph 1 and shall, at
least once in every year this licence is in force, revise such
statements in order that the information set out in the
statements shall continue to be accurate in all material
respects.
11. The licensee shall send a copy of the statements prepared in
accordance with paragraph 1, and of each revision of such
statements in accordance with paragraph 10 to the Director.
12. The licensee shall give or send a copy of the statements
prepared in accordance with paragraph 1, or (as the case may be)
of the latest revision of such statements in accordance with
paragraph 10, to any person who requests a copy of such statement
or statements
13. The licensee may make a charge for any statement given or
sent pursuant to paragraph 12 of an amount which shall not exceed
the amount specified in directions issued by the Director for the
purposes of this Condition based on the Director's estimate of
the licensee's reasonable costs of providing such a statement.
14. The licensee may within 10 days after receipt of the request
provide an estimate of its reasonable costs in the preparation of
any statement referred to in paragraph 8, and its obligation to
provide such statement shall be conditional on the person
requesting such statement agreeing to pay the amount estimated or
such other amount as the Director may, upon application of the
licensee or the person requesting such statement, direct.
15. For the purposes of paragraph 8 above, the date referred to
shall be the latest of:
(a) the date of receipt of the request referred to in paragraph
8; or
(b) the date on which the licensee receives agreement from the
person making the request to pay the amount estimated or such
other amount as is determined by the Director (as the case may
be) under paragraph 14 above.
Condition 8A: Non-discrimination in the provision of top-up or
standby supplies or sales of electricity, use of system and
connection to the system
1. In the provision of top-up or standby supplies or sales of
electricity or in the carrying out of works for the purpose of
connection to the licensee's distribution system, the licensee
shall not discriminate:
(a) between any persons or class or classes of persons; or
(b) as between the licensee (in the provision of connections by
the licensee as part of its Distribution Business to itself for
the purpose of its Supply or Second-Tier Supply Business) and any
person or class or classes of persons.
2. In the provision of use of system the licensee shall not
discriminate:
(a) between any authorised electricity operators or class or
classes thereof; or
(b) as between the licensee (in the provision of use of system
by the licensee as part of its Distribution Business to itself
for the purpose of its Supply or Second-Tier Supply Business) and
any authorised electricity operator or class or classes thereof.
3. Without prejudice to paragraphs 1 or 2, the licensee shall
not:
(a) make charges for the provision of top-up or standby supplies
or sales of electricity to any person or class or classes of
persons; or
(b) make charges for use of system to any authorised electricity
operator or class or classes thereof
which differ from the charges for such provision:
(i) (in the case of top-up or standby supplies or sales of
electricity) to any other person or class or classes of person:
or
(ii) (in the case of use of system):
(aa) to any other authorised electricity operator or to any class
or classes thereof; or
(bb) to the licensee (in the provision of use of system by the
licensee as part of its Distribution Business to itself for the
purposes of its Supply or Second-Tier Supply Business)
except in so far as such differences reasonably reflect
differences in the costs associated with such provision.
4. The licensee shall not in setting its charges for provision of
top-up or standby supplies or sales of electricity or charges for
use of system restrict, distort or prevent competition in the
generation, distribution or supply of electricity.
Condition 8B: Requirement to offer terms
1. On application made by any authorised electricity operator
the licensee shall (subject to paragraph 6) offer to enter into
an agreement for use of system:
(a) to accept into the licensee's distribution system at such
entry point or points and in such quantities as may be specified
in the application, electricity to be provided by or on behalf of
such authorised electricity operator; and/or
(b) to distribute such quantities of electricity as are referred
to in subparagraph (a) above (less any distribution losses) at
such exit point or points on the licensee's distribution system
and to such person or persons as the authorised electricity
operator may specify; and
(c) specifying the use of system charges to be paid by the
authorised electricity operator, such charges (unless manifestly
inappropriate) to be referable to the statement referred to at
paragraphs 1 and 3 of Condition 8 or any revision thereof, and to
be in conformity with the requirements of paragraph 6 of
Condition 8; and
(d) containing such further terms as are or may be appropriate
for the purposes of the agreement.
2. On application made by any person, the licensee shall
(subject to paragraph 6) offer to enter into an agreement for
connection to the licensee's distribution system or for
modification to an existing connection and such offer shall make
detailed provision regarding:
(a) the carrying out of works (if any) required to connect the
licensee's distribution system to any other system for the
transmission or distribution of electricity, and for the
obtaining of any consents necessary for such purpose;
(b) the carrying out of works (if any) in connection with the
extension or reinforcement of the licensee's distribution system
rendered (in the licensee's discretion) appropriate or necessary
by reason of making the connection or modification to an existing
connection and for the obtaining of any consents necessary for
such purpose;
(c) the installation of appropriate meters (if any) required to
enable the licensee to measure electricity being accepted into
the licensee's distribution system at the specified entry point
or points or leaving such system at the specified exit point or
points;
(d) the installation of such switchgear or other apparatus (if
any) as may be required for the interruption of supply where the
person seeking connection or modification of an existing
connection does not require the provision by the licensee of
top-up or standby supplies or sales of electricity;
(e) the installation of special metering, telemetry or data
processing (if any) for the purpose of enabling any person which
is party to the Pooling and Settlement Agreement to comply with
its obligations in respect to metering or the performance by the
licensee of any service in relation to such metering thereunder;
(f) the date by which any works required to permit access to the
licensee's distribution system (including for this purpose any
works to reinforce or extend the licensee's distribution system)
shall be completed (time being of the essence unless otherwise
agreed by the person seeking connection);
(g) the connection charges to be paid to the licensee, such
charges (unless manifestly inappropriate):
(i) to be presented in such a way as to be referable to the
statement referred to in paragraphs 1 and 4 of Condition 8 or any
revision thereof; and
(ii) to be set in conformity with the requirements of paragraph 7
of Condition 8 and (where relevant) of paragraph 4; and
(h) containing such further terms as are or may be appropriate
for the purpose of the agreement.
3. The licensee shall (subject to paragraph 6) offer to enter
into an agreement with any person who requests the same to
provide top-up or standby supplies or sales of electricity, such
offer to make provision for the charges to be made in respect of
top-up or standby supplies or sales of electricity, such charges:
(a) to be presented in such a way as to be referable to the
statement referred to in paragraph 2 of Condition 8 or any
revision thereof; and
(b) to be set in conformity with the requirements of paragraph 5
of Condition 8.
4. For the purpose of determining an appropriate proportion of
the costs directly or indirectly incurred in carrying out works
under an agreement for making a connection or modification to an
existing connection, the licensee shall have regard to:
(a) the benefit (if any) to be obtained or likely in the future
to be obtained by the licensee or any other person as a result of
the carrying out of such works whether by reason of the
reinforcement or extension of the licensee's distribution system
or the provision of additional entry or exit points on such
system or otherwise;
(b) the ability or likely future ability of the licensee to
recoup a proportion of such costs from third parties; and
(c) the principles that:
(i) no charge will normally be made for reinforcement of the
existing distribution system if the new or increased load
requirement does not exceed 25 per cent of the existing effective
capacity at the relevant points on the system; and
(ii) charges will not generally take into account system
reinforcement carried out at more than one voltage level above
the voltage of connection.
5. The licensee shall offer terms for agreements in accordance
with paragraphs 1 to 3 above as soon as practicable and (save
where the Director consents to a longer period) in any event not
more than the period specified in paragraph 7 below after receipt
by the licensee from:
(a) in the case of paragraph 1, an authorised electricity
operator; and
(b) in the case of paragraphs 2 and 3, any person
of an application containing all such information as the licensee
may reasonably require for the purpose of formulating the terms
of the offer.
6. The licensee shall not be obliged pursuant to this Condition
to offer to enter or to enter into any agreement if:
(a) to do so would be likely to involve the licensee:
(i) in breach of its duties under Section 9 of the Act;
(ii) in breach of the Electricity Supply Regulations 1988 or of
any regulations made under Section 29 of the Act or of any other
enactment relating to safety or standards applicable in respect
to the Distribution Business;
(iii) in breach of the Grid Code or the Distribution Code; or
(iv) in breach of the Conditions; or
(b) the person making the application does not undertake to be
bound, in so far as applicable, by the terms of the Distribution
Code or the Grid Code from time to time in force; or
(c) in the case of persons making application for use of system
under paragraph 1, such person ceases to be an authorised
electricity operator.
7. For the purpose of paragraph 5, the period specified shall
be:
(a) in the case of persons seeking use of system or top-up or
standby supplies or sales of electricity only, 28 days; and
(b) in the case of persons seeking connection or a modification
to an existing connection or use of system or top-up or standby
supplies or sales of electricity in conjunction with connection,
three months.
8. The licensee shall within 28 days following receipt of a
request from any person, give or send to such person such
information in the possession of the licensee as may be
reasonably required by such person for the purpose of completing
paragraph 8 of Part I and paragraphs 2(v) and (vi) of Part 2 of
Schedule 2 of The Electricity (Application for Licences and
Extensions of Licences) Regulations 1990 or such provisions to
like effect contained in any further regulations then in force
made pursuant to Sections 6(3), 60 and 64(1 ) of the Act.
Condition 8C: Functions of the Director
1. If, after a period which appears to the Director to be
reasonable for the purpose, the licensee has failed to enter into
an agreement with (as the case may be) any authorised electricity
operator or any person entitled or claiming to be entitled
thereto pursuant to a request under Condition 8B, the Director
may, pursuant to Section 7(3)(c) of the Act and on the
application of such authorised electricity operator or such
person or the licensee, settle any terms of the agreement in
dispute between the licensee and that authorised electricity
operator or that person in such manner as appears to the Director
to be reasonable having (in so far as relevant) regard in
particular to the following considerations:
(a) that such authorised electricity operator or such person
should pay to the licensee:
(i) in the case of the provision of top-up or standby supplies
or sales of electricity, such sum as is determined in accordance
with paragraph 5 of Condition 8;
(ii) in the case of provision of use of system, the use of system
charges determined in accordance with paragraph 6 of Condition 8;
and (iii) in the case of provision of a connection or a
modification to an existing connection to the system, the whole
or an appropriate proportion (as determined in accordance with
paragraph 4 of Condition 8B) of the costs referred to in
sub-paragraph (a) of paragraph 7 of Condition 8, together with a
reasonable rate of return on the capital represented by such
costs;
(b) that the performance by the licensee of its obligations
under the agreement should not cause it to be in breach of those
provisions referred to at paragraph 6 of Condition 8B;
(c) that any methods by which the licensee's distribution system
is connected to any other system for the transmission or
distribution of electricity accord (in so far as applicable to
the licensee) with the Distribution Code and with the Grid Code;
and
(d) that the terms and conditions of the agreement so settled by
the Director and of any other agreements entered into by the
licensee pursuant to a request under Condition 8B should be, so
far as circumstances allow, in as similar a form as is
practicable.
2. In so far as any authorised electricity operator or any
person entitled or claiming to be entitled to an offer under
Condition 8B wishes to proceed on the basis of the agreement as
settled by the Director, the licensee shall forthwith enter into
and implement such agreement in accordance with its terms.
3. If the licensee proposes to vary the contractual terms of
any agreement for connection to the licensee's distribution
system or for use of system entered into pursuant to Condition 8B
or this Condition in any manner provided for under such
agreement, the Director may, at the request of the licensee or
other party to such agreement, settle any dispute relating to
such variation in such manner as appears to the Director to be
reasonable.
Condition 9: Distribution system planning standard and quality of
service
1. The licensee shall plan and develop the licensee's
distribution system in accordance with a standard not less than
that set out in Engineering Recommendation P.2/5 (October 1978
revision) of the Electricity Council Chief Engineers' Conference
in so far as applicable to it or such other standard of planning
as the licensee may, following consultation (where appropriate)
with the Transmission Company and any other authorised
electricity operator liable to be materially affected thereby and
with the approval of the Director, adopt from time to time.
2. The licensee shall within 3 months after this licence enters
into force draw up and submit to the Director for his approval a
statement setting out criteria by which the quality of
performance of the licensee in maintaining distribution system
security and availability and quality of service may be measured.
3. The licensee shall within 2 months after the end of each
financial year submit to the Director a report providing details
of the performance of the licensee during the previous financial
year against the criteria referred to in paragraph 2.
4. The Director may (following consultation with the licensee
and, where appropriate, with the Transmission Company and any
other authorised electricity operator liable to be materially
affected thereby) issue directions relieving the licensee of its
obligation under paragraph 1 in respect of such parts of the
licensee's distribution system and to such extent as may be
specified in the directions.
Condition 10: Generation security standard
1. The licensee shall make arrangements sufficient to meet the
generation security standard.
2. The duty imposed by paragraph 1 shall be discharged either
by the licensee's complying with the provisions of paragraph 3
below or by the making by the licensee of such other arrangements
as may have been previously approved in writing for the purpose
by the Director.
3. The licensee may discharge the duty imposed by paragraph 1
by:
(a) for so long as the relevant condition is met, purchasing as
a pool member under the terms of the Pooling and Settlement
Agreement quantities of electricity which are at all times
sufficient to meet the demands of all qualifying customers of the
licensee; and
(b) for so long as the relevant condition is met, and save by
reason of planned maintenance undertaken on the licensee's
distribution system or in circumstances of force majeure
affecting either the licensee's distribution system or the
quantities of electricity delivered into that system, not:
(i) making voltage reductions outside statutory limits; or
(ii) interrupting or reducing supplies to any qualifying customer
otherwise than as instructed pursuant to the Grid Code by the
Transmission Company or in accordance with the Distribution Code.
4. The relevant condition referred to in paragraph 3 is that
there should at any relevant time be electricity available to be
purchased under the terms of the Pooling and Settlement Agreement
at a price less than the ceiling price.
5. The licensee shall upon request by the Director provide to
the Director such information as the Director may require for the
purpose of monitoring compliance with this Condition and to
enable the Director (having regard to his statutory duties) to
review the operation of the generation security standard.
6. The provisions of this Condition are without prejudice to
the duties of the licensee under the Electricity Supply
Regulations 1988.
7. In this Condition:
"ceiling price" means such price as would be equal to the Pool
Selling Price in circumstances where the corresponding Pool
Purchase Price was an amount equal to the Value of Lost Load.
"generation security standard" means such standard of generation
security as will ensure that:
(a) the supply of electricity to qualifying customers will not
be discontinued in more than 9 years in any 100 years; and
(b) the voltage or frequency of electricity supplied to
qualifying customers will not be reduced below usual operational
limits in more than 30 years in any 100 years
by reason of insufficiency of electricity generation available
for the purposes of supply by the licensee to its qualifying
customers at times of annual system peak demand.
"Pool Purchase Price" and "Pool Selling Price" shall each have
the meaning from time to time ascribed to them in Schedule 9 to
the Pooling and Settlement Agreement.
"qualifying customer" means any purchaser from the licensee
entitled and requiring at any time to be supplied by the licensee
at premises within the authorised area of the licensee but shall
exclude:
(a) a contract purchaser under an interruptible contract or a
contract containing load management terms to the extent that
supplies to that purchaser may be interrupted or reduced in
accordance with the terms of that contract; and
(b) a tariff customer on special tariffs which restrict supplies
to particular time periods to the extent that supplies to that
customer may be interrupted or reduced in accordance with such
tariff
"Value of Lost Load" means in respect of the first financial
year, the sum of 2 pounds per kWh and, in respect of each succeeding
financial year, the sum which corresponds to 2 pounds per kWh as
adjusted to reflect the percentage change in the Retail Price
Index between the index published or determined in respect to the
December prior to the start of that financial year and the index
published or determined for December 1 1989.
Condition 11: Distribution Code
1 The licensee shall in consultation with authorised
electricity operators liable to be materially affected thereby
prepare and at all times have in force and shall implement and
(subject to paragraph 10 of this Condition) comply with a
Distribution Code:
(a) covering all material technical aspects relating to
connections to and the operation and use of the licensee's
distribution system or (in so far as relevant to the operation
and use of the licensee's distribution system) the operation of
electric lines and electrical plant connected to the licensee's
distribution system or the distribution system of any authorised
electricity operator and (without prejudice to the foregoing)
making express provision as to the matters referred to in
paragraph 5 below; and
(b) which is designed so as:
(i) to permit the development, maintenance and operation of an
efficient, coordinated and economical system for the distribution
of electricity; and
(ii) to facilitate competition in the generation and supply of
electricity.
2 The Distribution Code in force at the date this licence
enters force shall be sent to the Director for his approval.
Thereafter the licensee shall (in consultation with authorised
electricity operators liable to be materially affected thereby)
periodically review (including upon the request of the Director)
the Distribution Code and its implementation. Following any such
review, the licensee shall send to the Director:
(a) a report on the outcome of such review; and
(b) any proposed revisions to the Distribution Code from time to
time as the licensee (having regard to the outcome of such
review) reasonably thinks fit for the achievement of the
objectives referred to in sub-paragraph (b) of paragraph 1; and
(c) any written representations or objections from authorised
electricity operators (including any proposals by such operators
for revisions to the Distribution Code not accepted by the
licensee in the course of the review) arising during the
consultation process and subsequently maintained.
3. Revisions to the Distribution Code proposed by the licensee
and sent to the Director pursuant to paragraph 2 shall require to
be approved by the Director.
4. Having regard to any written representations or objections
referred to in sub-paragraph (c) of paragraph 2, and following
such further consultation (if any) as the Director may consider
appropriate, the Director may issue directions requiring the
licensee to revise the Distribution Code in such manner as may be
specified in the directions, and the licensee shall forthwith
comply with any such directions.
5. The Distribution Code shall include:
(a) a distribution planning and connection code containing:
(i) connection conditions specifying the technical, design and
operational criteria to be complied with by any person connected
or seeking connection with the licensee's distribution system;
and
(ii) planning conditions specifying the technical and design
criteria and procedures to be applied by the licensee in the
planning and development of the licensee's distribution system
and to be taken into account by persons connected or seeking
connection with the licensee's distribution system in the
planning and development of their own plant and systems; and
(b) a distribution operating code specifying the conditions
under which the licensee shall operate the licensee's
distribution system and under which persons shall operate their
plant and/or distribution systems in relation to the licensee's
distribution system, in so far as necessary to protect the
security and quality of supply and safe operation of the
licensee's distribution system under both normal and abnormal
operating conditions.
6. The licensee shall give or send a copy of the Distribution
Code (as from time to time revised) to the Director.
7. The licensee shall (subject to paragraph 8) give or send a
copy of the Distribution Code (as from time to time revised) to
any person requesting the same.
8. The licensee may make a charge for any copy of the
Distribution Code (as from time to time revised) given or sent
pursuant to paragraph 7 of an amount which will not exceed any
amount specified for the time being for the purposes of this
Condition in directions issued by the Director.
9. In preparing, implementing and complying with the
Distribution Code (including in respect of the scheduling of
maintenance of the licensee's distribution system), the licensee
shall not unduly discriminate against or unduly prefer:
(a) any one or any group of persons; or
(b) the licensee in the conduct of any business other than the
Distribution Business
in favour of or as against any one other or any other group of
persons.
10. The Director may (following consultation with the licensee)
issue directions relieving the licensee of its obligations under
the Distribution Code in respect of such parts of the licensee's
distribution system and to such extent as may be specified in the
directions.
11. Compliance with this Condition shall not require the licensee
to impose any contractual obligation on tariff customers to
comply with the Distribution Code (as from time to time revised).
Condition 12: Restriction on use of certain information
1. Where any person is required, pursuant to the provisions of
the Distribution Code to provide information to the licensee or
any affiliate or related undertaking of the licensee for the
purposes of the Distribution Business such person providing the
information may, by notice in writing given to the licensee or
such affiliate or related undertaking not later than the time at
which such information is provided or by the endorsement on the
information of words indicating the confidential nature of such
information, specify such information as confidential information
for the purposes of this Condition and the provisions of this
Condition shall apply to that information
2. Where the licensee or any affiliate or related undertaking
of the licensee receives confidential information in accordance
with paragraph 1, the licensee shall (and shall procure that such
affiliate or related undertaking shall):
(a) not use the confidential information for any purpose other
than that for which it was provided;
(b) without prejudice to sub-paragraph (a), not use the
confidential information in a manner which may obtain for the
licensee or any affiliate or related undertaking of the licensee
any commercial advantage in the operation of the Supply Business
or of the Second-Tier Supply Business;
(c) not authorise access to nor disclose any confidential
information other than:
(i) to such of the employees of the licensee or any affiliate or
related undertaking of the licensee (as the case may be) as
require to be informed thereof for the effective operation of the
Distribution Business;
(ii) to such agents, consultants and contractors as require to be
informed thereof for the effective operation of the Distribution
Business;
(iii) to the Director;
(iv) (with the prior approval of the person providing the
confidential information) to the Transmission Company; or
(v) information which the licensee or any affiliate or related
undertaking of the licensee (as the case may be) is required or
permitted to make disclosure of:
(aa) in compliance with the duties of the licensee or any
affiliate or related undertaking of the licensee (as the case may
be) under the Act or any other requirement of a Competent
Authority;
(bb) in compliance with the conditions of any licence issued
under the Act or any document referred to in any such licence
with which the licensee or any affiliate or related undertaking
of the licensee (as the case may be) is required by virtue of the
Act or such licence to comply;
(cc) in compliance with any other requirement of law;
(dd) in response to a requirement of any Stock Exchange or
regulatory authority or the Panel on Take-overs and Mergers; or
(ee) pursuant to the arbitration rules for the Electricity Supply
Industry Arbitration Association or pursuant to any judicial or
other arbitral process or tribunal of competent jurisdiction; and
(d) take all reasonable steps to ensure that any such person as
is referred to in sub-paragraph (c)(i) and (c)(ii) above to whom
the licensee or any affiliate or related undertaking of the
licensee (as the case may be) discloses confidential information
does not use that confidential information for any purpose other
than that for which it was provided and does not disclose that
confidential information otherwise than in accordance with the
provisions of this Condition.
In this Condition:
"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.
"confidential information" means all information provided by any
person pursuant to the provisions of the Distribution Code which
is specified as confidential by such person as provided in
paragraph 1, but shall exclude all information that is in or
enters into the public domain otherwise than as a consequence of
unauthorised disclosure by the licensee or any affiliate or
related undertaking of the licensee (or by any person to whom the
same is disclosed or suffered to be disclosed by the licensee or
such affiliate or related undertaking).
"Electricity Supply Industry Arbitration Association" means the
unincorporated members' club of that name formed inter alla 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.
Condition 13: Compliance with the Grid Code
1. The licensee shall comply with the provisions of the Grid
Code in so far as applicable to it.
2. The Director may (following consultation with the
Transmission Company) issue directions relieving the licensee of
its obligation under paragraph 1 in respect of such parts of the
Grid Code and to such extent as may be specified in those
directions.
Condition 14: Security arrangements
1. The licensee shall comply with the provisions of the Fuel
Security Code and such provisions shall have effect as if they
were set out in this licence.
Condition 15: Pooling and Settlement Agreement
1. The licensee shall be a pool member under, and comply with
the provisions of, the Pooling and Settlement Agreement.
Condition 16: Conditions of supply affecting tariff customers'
statutory rights
1. The licensee shall not include in or send with any notice
given under Section 16(3) of the Act, or any form provided to
tariff customers or prospective tariff customers for use in
giving notice under Section 16(2) of the Act, or any notice sent
subsequently, an invitation to agree to anything which, by virtue
of the Act, may only be done or (as the case may be) not done:
(a) with the agreement of that person; or
(b) in any case where that person withholds his agreement or
makes that agreement subject to terms and conditions to which the
licensee objects, with the approval or consent or by order of the
Secretary of State
unless the form and terms of such invitation have first been
submitted to and approved by the Director.
2. Nothing in paragraph 1 shall prevent the licensee from:
(a) requiring a customer or prospective customer to enter into a
special agreement where this is permitted under Section 22 of the
Act;
(b) including in any such notice any provision or condition
which the licensee is required or permitted to include in such
notice by virtue of Section 16(4) of the Act; or
(c) including in any such notice concerning the provision of a
supply to premises:
(i) not previously supplied by the licensee; or
(ii) where any change is required in the location of any electric
line, electrical plant or electric meter
an invitation to any customer or prospective customer to agree to
any provision or condition concerning the installation or
location of any or all of an electric line, electrical plant or
an electric meter
in any such case without having submitted the form and terms of
such agreement or notice to the Director.
3. The licensee shall include in any form provided to tariff
customers or prospective tariff customers for use in giving
notice under Section 16(2) of the Act a prominent statement of
the right of such customer to apply to the Director for the
determination of any dispute arising out of the proposed terms of
supply.
Condition 17: Licensee's apparatus on tariff customers' side of
meter
1. This Condition applies where the licensee installs a second
meter or other apparatus for the purpose of ascertaining or
regulating the amount of electricity supplied, the period of
supply, or any other quantity or time connected with the supply
on the customer's side of the meter or meters registering the
quantity of the supply to a tariff customer.
2. Any second meter or other apparatus installed by the
licensee in the position and for a purpose described in paragraph
1 shall be such that the power consumed by it, when aggregated
with the power consumed by any other meter or apparatus installed
by the licensee in the like position and for a like purpose in
relation to the tariff customer, does not exceed 10 watts except
where otherwise agreed with the tariff customer.
Condition 18: Code of practice on payment of bills
1. The licensee shall within three months after this licence
has come into force prepare and submit to the Director for his
approval a Code of Practice concerning the payment of electricity
bills by customers occupying domestic premises, and including
appropriate guidance for the assistance of such customers who may
have difficulty in paying such bills.
2. The licensee shall, whenever requested to do so by the
Director, review the Code prepared in accordance with paragraph
1, and the manner in which it has been operated, with a view to
determining whether any modification should be made to it or to
the manner of its operation.
3. In preparing the Code, and in carrying out any review
(including in accordance with paragraph 2), the licensee shall
consult the relevant consumers' committee and shall have regard
to any representations made by it about the Code or the manner in
which it is likely to be or (as the case may be) has been
operated.
4. The licensee shall submit any revision of the Code which,
after consulting the relevant consumers' committee in accordance
with paragraph 3, it wishes to make to the Director for his
approval.
5. The licensee shall:
(a) send a copy of the Code and of any revision of it (in each
case, in the form approved by the Director) to the Director and
the relevant consumers' committee;
(b) draw to the attention of customers occupying domestic
premises the existence of the Code and each substantive revision
of it and how they may inspect or obtain a copy of the Code in
its latest form;
(c) make a copy of the Code (as from time to time revised)
available for inspection by members of the public at each of the
relevant premises during normal working hours; and
(d) give or send free of charge a copy of the Code (as from time
to time revised) to any person who requests it.
Condition 19: Methods for dealing with tariff customers in
default
1. The licensee shall within three months after this licence
has come into force, after consultation with the relevant
consumers' committee, prepare and submit to the Director for his
approval methods for dealing with tariff customers who, through
misfortune or inability to cope with electricity supplied for
domestic use on credit terms, incur obligations to pay for
electricity so supplied which they find difficulty in discharging
including, in particular, methods for:
(a) distinguishing such tariff customers from others in default;
(b) detecting failures by such tariff customers to comply with
arrangements entered into for paying by instalments charges for
electricity supplied;
(c) making such arrangements so as to take into account the
tariff customer's ability to comply with them;
(d) ascertaining, with the assistance of other persons or
organisations, the ability of tariff customers to comply with
such arrangements;
(e) providing for such a tariff customer who has failed to
comply with such arrangements a prepayment meter where safe and
practical to do so; and
(f) calibrating any prepayment meter so provided so as to take
into account the tariff customer's ability to pay any of the
charges due from the customer under such arrangements in addition
to the other charges lawfully being recovered through the
prepayment meter.
2. The licensee shall not make any substantial change in the
methods adopted under this Condition without the consent of the
Director.
3. The licensee shall furnish the Director with such
information as to such methods as he may from time to time
direct.
Condition 20: Provision of services for persons who are of
pensionable age or disabled
1. The licensee shall make arrangements for persons occupying
domestic premises who are of State pensionable age or disabled by
which special services in the following respects can be made
available where appropriate:
(a) providing where practicable special controls and adaptors
for electrical appliances and meters (including pre-payment
meters) and repositioning meters;
(b) providing special means of identifying officers authorised
by the licensee; and
(c) giving advice on the use of electricity.
2. The licensee shall within three months after the date on
which this licence has come into force prepare and submit to the
Director for his approval a Code of Practice describing the
special services available and any charges made or to be made.
3. The licensee shall whenever requested to do so by the
Director review the Code prepared in accordance with paragraph 2,
and the manner in which it has been operated, with a view to
determining whether any modification should be made to it or to
the manner of its operation.
4. In preparing the Code, and in carrying out any review
(including in accordance with paragraph 3), the licensee shall
consult the relevant consumers' committee and shall have regard
to any representations made by it about the Code or the manner in
which it is likely to be or (as the case may be) has been
operated.
5. The licensee shall submit any revision of the Code which,
after consulting the relevant consumers' committee in accordance
with paragraph 4, it wishes to make to the Director for his
approval.
6. The licensee shall:
(a) send a copy of the Code and of any revision of it (in each
case, in the form approved by the Director) to the Director and
the relevant consumers' committee;
(b) make a copy of the Code (as from time to time revised)
available for inspection by members of the public at each of the
relevant premises during normal working hours; and
(c) give or send free of charge a copy of the Code (as from time
to time revised) to any person who requests it.
Condition 21: Standards of performance
1. The licensee shall conduct its Supply and Distribution
Businesses in the manner which it reasonably considers to be best
calculated to achieve any standards of overall performance or
standards of performance in connection with the promotion of the
efficient use of electricity by customers, as may be determined
by the Director pursuant to Sections 40 and 41 respectively of
the Act.
Condition 22: Efficient use of electricity
1. The licensee shall within three months after this licence
has come into force, after consultation with the relevant
consumers' committee, prepare and submit to the Director for his
approval a Code of Practice setting out the ways in which the
licensee will make available to customers such guidance on the
efficient use of electricity as will, in the opinion of the
licensee, enable them to make informed judgments on measures to
improve the efficiency with which they use the electricity
supplied to them. Such Code of Practice shall include, but shall
not be limited to:
(a) the preparation and making available free of charge to any
customer who requests it of a statement, in a form approved by
the Director, setting out information and advice for the guidance
of customers in the efficient use of electricity supplied to
them;
(b) the creation and maintenance within the licensee's
organisation of sources from which customers may obtain further
information about the efficient use of electricity supplied to
them, including the maintenance of a telephone information
service;
(c) the preparation and making available free of charge to any
customer who requests it of a statement or statements of sources
(to the extent that the licensee is aware of the same) outside
the licensee's organisation from which customers may obtain
additional information or assistance about measures to improve
the efficiency with which they use the electricity supplied to
them, such statement or statements to include basic information
which is publicly available on financial assistance towards the
costs of such measures available from Central or Local Government
or through bodies in receipt of financial support from Government
in connection with measures to promote the efficiency of energy
use.
2. Where the Director (who may have regard to the need for
economy, efficiency and effectiveness before giving directions
under this paragraph) gives directions to do so, the licensee
shall:
(a) review and prepare a revision of the Code of Practice;
(b) take steps to bring to the attention of customers
information on the efficient use of electricity supplied to them;
and
(c) send to each customer a copy of any information published by
the Director pursuant to Section 48 of the Act
in such manner and at such times as will comply with those
directions.
3. The licensee shall:
(a) send a copy of any Code of Practice prepared in accordance
with paragraph 1, and of any revision of such Code prepared in
accordance with paragraph 2 (in each case, in the form approved
by the Director) to the Director and the relevant consumers'
committee:
(b) make a copy of such Code (as from time to time revised)
available for inspection by members of the public at each of the
relevant premises during normal working hours; and
(c) give or send free of charge a copy of such Code (as from
time to time revised) to any person who requests it.
Condition 23: CompIaint handling procedure
1. The licensee shall within three months after this licence
has come into force establish a procedure for handling complaints
from customers about the manner in which the licensee conducts
its Supply and Distribution Businesses.
2. The licensee shall, whenever requested to do so by the
Director, review the procedure established in accordance with
paragraph 1, and the manner in which that procedure has been
operated, with a view to determining whether any modification
should be made to it or to the manner of its operation.
3. In establishing a procedure in accordance with paragraph 1,
and in carrying out any review (including in accordance with
paragraph 2), the licensee shall consult the relevant consumers'
committee and shall have regard to any representations made by it
about the procedure or the manner in which it is likely to be or
(as the case may be) has been operated.
4. Any procedure established in accordance with this Condition
shall specify the periods within which it is intended that
different descriptions of complaint should be processed and
resolved.
5. The licensee shall submit the procedure established in
accordance with paragraph 1, and any revision of it which (after
consultation with the relevant consumers' committee in accordance
with paragraph 3) is proposed to be made, to the Director for his
approval.
6. The licensee shall:
(a) send a copy of the procedure and any revision of it (in each
case, after it has been approved by the Director) to the Director
and the relevant consumers' committee;
(b) make a copy of the procedure (as from time to time revised)
available for inspection by members of the public at each of the
relevant premises during normal working hours; and
(c) give or send free of charge a copy of the procedure (as from
time to time revised) to any person who requests it.
Condition 24: Relations with relevant consumers' committee
1. The licensee shall meet with the relevant consumers'
committee whenever requested to do so by that committee, up to a
maximum of six times in every year during the period of this
licence.
2. Without prejudice to paragraph 1, the licensee shall meet
the relevant consumers' committee at least once in every year
during the period of this licence.
3. In at least one meeting with the relevant consumers'
committee in every year during the period of this licence, the
licensee shall be represented by one or more directors of the
licensee.
Condition 25: Health and safety of employees
1. It shall be the duty of the licensee to act together with
other licensees to consult with appropriate representatives of
the employees for the purpose of establishing and maintaining an
appropriate machinery or forum for the joint consideration of
matters of mutual concern in respect of the health and safety of
persons employed by those licensees.
Condition 26: Requirement to enter certain agreements
1. If any proposed agreement relating to the generation,
transmission or supply of electricity has (following consultation
with the licensee) been designated by the Secretary of State for
the purposes of this Condition, the Secretary of State may at any
time prior to 1st October 1990, require the licensee:
(a) to offer to enter into such proposed agreement; and
(b) upon that offer being accepted, forthwith to enter into such
agreement.
2. In this Condition, "agreement" shall include any arrangement
whether or not in writing and whether or not intended to be
legally enforceable, and "proposed agreement" shall be construed
accordingly.
Condition 27: Disposal of relevant assets
1. The licensee shall not dispose of or relinquish operational
control over any relevant asset otherwise than in accordance with
the following paragraphs of this Condition.
2. Save as provided in paragraph 3, the licensee shall give to
the Director not less than two months' prior written notice of
its intention to dispose of or relinquish operational control
over any relevant asset, together with such further information
as the Director may request relating to such asset or the
circumstances of such intended disposal or relinquishment of
control or to the intentions in regard thereto of the person
proposing to acquire such asset or operational control over such
asset.
3. Notwithstanding paragraphs I and 2, the licensee may dispose
of or relinquish operational control over any relevant asset:
(a) where:
(i) the Director has issued directions for the purposes of this
Condition containing a general consent (whether or not subject to
conditions) to:
(aa) transactions of a specified description; or
(bb) the disposal of or relinquishment of operational control
over relevant assets of a specified description; and
(ii) the transaction or the relevant assets are of a description
to which such directions apply and the disposal or relinquishment
is in accordance with any conditions to which the consent is
subject;
(b) under such contracts or agreements, or contracts or
agreements of such a description, as may have been designated by
the Secretary of State for the purposes of this Condition before
the coming into force of this licence and to the extent so
designated;
(c) where the disposal or relinquishment of operational control
in question is required by or under any enactment or subordinate
legislation.
4. Notwithstanding paragraph 1, the licensee may dispose of or
relinquish operational control over any relevant asset as is
specified in any notice given under paragraph 2 in circumstances
where:
(a) the Director confirms in writing that he consents to such
disposal or relinquishment (which consent may be made subject to
the acceptance by the licensee or any third party in favour of
whom the relevant asset is proposed to be disposed or operational
control is proposed to be relinquished of such conditions as the
Director may specify); or
(b) the Director does not inform the licensee in writing of any
objection to such disposal or relinquishment of control within
the notice period referred to in paragraph 2.
5. In this Condition:
"disposal" includes any sale, gift, lease, licence, loan,
mortgage, charge or the grant of any other encumbrance or the
permitting of any encumbrance to subsist or any other disposition
to a third party, and "dispose" shall be construed accordingly.
"relevant asset" means any asset for the time being forming part
of the licensee's distribution system, any control centre for use
in conjunction therewith and any legal or beneficial interest in
land upon which any of the foregoing is situate.
Condition 28: Provision of information to the Director
1. Subject to paragraphs 3 and 4, the licensee shall furnish to
the Director, in such manner and at such times as the Director
may require, such information and shall procure and furnish to
him such reports, as the Director may consider necessary in the
light of the Conditions or as he may require for the purpose of
performing:
(a) the functions assigned to him by or under the Act; and
(b) any functions transferred to him under the Act.
2. Without prejudice to the generality of paragraph 1, the
Director may call for the furnishing of accounting information
which is more extensive than or differs from that required to be
prepared and supplied to the Director under Condition 2.
3. [No longer used]
4. The licensee may not be required by the Director to furnish
him under this Condition with information for the purpose of the
exercise of his functions under Section 48 of the Act.
5. The licensee may not be required by the Director to furnish
him under this Condition with any information in relation to an
enforcement matter which the licensee could not be compelled to
produce or give under Section 28(3) of the Act.
6. The power of the Director to call for information under
paragraph 1 is in addition to the power of the Director to call
for information under or pursuant to any other Condition.
7. In paragraphs 1 to 6, "information" shall include any
documents, accounts, estimates, returns or reports (whether or
not prepared specifically at the request of the Director) of any
description specified by the Director.
8. The licensee shall, if so requested by the Director, give
reasoned comments on the accuracy and text of any information and
advice (so far as relating to the Supply and Distribution
Businesses) which the Director proposes to publish pursuant to
Section 48 of the Act.
9. [No longer used]
Condition 29: Payment of fees
1. The licensee shall, at the times stated hereunder, pay To
the Secretary of State fees of the amount specified in, or
determined under, the following paragraphs of this Condition.
2. Within 30 days after the grant of this licence but, in any
event, before 1st May 1990, the licensee shall pay to the
Secretary of State an initial fee of 240,000 pounds sterling.
3. In respect of the year beginning 1st April 1990 the licensee
shall pay to the Secretary of State a further fee which is the
aggregate of the following amounts:
(a) 475,000 pounds sterling; and
(b) the difference, if any, between:
(i) the initial fee referred to in paragraph 2 above; and
(ii) the proportion of the Director's total costs in the period
prior to 1st April 1990 which the Director determines that the
licensee should pay in accordance with a method which has been
previously disclosed in writing to the licensee
and the fee shall be paid by the licensee to the Secretary of
State within one month of the Director giving notice to the
licensee of its amount if that notice is given within six months
of 1st April 1990.
4. In respect of the year beginning on Ist April in 1991 and in
each subsequent year, the licensee shall pay to the Secretary of
State a fee which is the aggregate of the following amounts:
(a) an amount which is a proportion as determined by the
Director of the amount estimated by the Director, according to a
method which has previously been disclosed in writing to the
licensee, as likely to be his costs during the coming year in the
exercise of his general functions under the Act in relation to
the holders of licences granted by the Secretary of State under
Section 6(1) and 6(2) of the Act;
(b) the amount (or, where the consumers' committee in question
is the relevant consumers' committee for more than one public
electricity supplier, the amount which is a proportion as
determined by the Director, according to a method which has
previously been disclosed in writing to the licensee, of such
amount) estimated by the Director (having regard to any statement
under paragraph 8(2) of Schedule 2 to the Act) as being likely to
be the costs during the coming year of the relevant consumers'
committee in the exercise of the functions assigned to it by or
under the Act and any other such functions as it has been or may
be required to exercise by the Director;
(c) an amount which is a proportion as determined by the
Director, of the amount estimated by the Director (in
consultation with the Monopolies Commission) as having been
incurred in the calendar year immediately preceding the 1st April
in question by the Monopolies Commission in connection with
references made to it under Section 12 of the Act with respect to
this licence or any other licence issued under Section 6(1)(c) of
the Act; and
(d) the difference (being a positive or a negative amount), if
any, between:
(i) the amount of the fee paid by the licensee in respect of
the year immediately preceding the 1st April in question; and
(ii) the amount which that fee would have been in respect of that
year had the amounts comprised therein been calculated by
reference to:
(aa) in the case of sub-paragraph (a) above (or, where that year
commenced on Ist April 1990 the amount attributable to the
matters referred to in that sub-paragraph), the total costs of
the Director and the proportion thereof actually attributable to
the licensee; and
(bb) in the case of sub-paragraph (b) above (or, where that year
commenced on 1st April 1990 the amount attributable to the
matters referred to in that sub-paragraph), the total costs of
the consumers' committee and where appropriate, the proportion
thereof actually attributable to the licensee
such total costs being apportioned in each case as determined by
the Director according to a method previously disclosed in
writing to the licensee
and the fee shall be paid by the licensee to the Secretary of
State within one month of the Director giving notice to the
licensee of its amount if that notice is given within six months
of the beginning of the year in respect of which the fee is
payable.
SCHEDULE 1
Description of authorised area
The authorised area shall comprise that area which is outlined on
the attached map and shall additionally include those premises
listed in List A (the "Additional Premises") but shall not
include those premises listed in List B (the "Excluded
Premises").
A: ADDITIONAL PREMISES
Address Grid Ref.
None
B: EXCLUDED PREMISES
(a) TO BE SUPPLIED BY YORKSHIRE ELECTRICITY GROUP PLC
Address Grid Ref.
Mine SE 6040 4045
Stillingfeet Moor
Stillingfeet
near York
Y04 6HX
Mine SE 6475 4431
North Selby
New Road
Escrick
Yn4 AF.Y
PRIVATE ELECTRICITY SUPPLY
("SECOND-TIER") LICENCE
in favour of
Northern Electric plc
OFFICE OF ELECTRICITY REGULATION NORTHERN IRELAND
Brookmount Buildings
42 Fountain Street
BELFAST BT1 TEE
TABLE OF CONTENTS
PART I TERMS OF THE LICENCE
PART II THE CONDITIONS
CONDITION 1: INTERPRETATION AND CONSTRUCTION
CONDITION 2: CONNECTION AND USE OF SYSTEM - REQUIREMENT TO
OFFER TERMS
CONDITION 3: CONNECTION AND USE OF SYSTEM - FUNCTION OF THE
DIRECTOR
CONDITION 4: COMPLIANCE WITH GRID CODE AND, WHERE APPLICABLE,
DISTRIBUTION CODE
CONDITION 5: SUPPLY COMPETITION CODE
CONDITION 6: MODIFICATION OF SUPPLY COMPETITION CODE AND
CANCELLATION OF
CONTRACT
CONDITION 7: LICENSEE'S SYSTEM PLANNING
CONDITION 8: SECURITY ARRANGEMENTS
CONDITION 9: COMPULSORY ACQUISITION OF LAND
CONDITION 10: POWERS TO CARRY OUT ROAD WORKS ETC
CONDITION 11: HEALTH AND SAFETY OF EMPLOYEES
CONDITION 12: PAYMENT OF FEES
SCHEDULE 1
SCHEDULE 2
PART I
1. The Director General of Electricity Supply for Northern
Ireland, in accordance with a general authority given by the
Department of Economic Development under Articles 10(1) and
10(2) of the Electricity (Northern Ireland) Order 1992
(hereinafter referred to as the "Order") and in exercise of
the powers conferred by Articles 10(2)(a), 10(6), 11 and 13
of the Order hereby grants to Northern Electric plc a
licence to supply electricity to the premises specified or
of the description specified in Schedule 1 during the period
specified in paragraph 3 below, subject to the Conditions
set out in Part II below (hereinafter referred to as the
"Conditions").
2. The Conditions are subject to modification or amendment in
accordance with their terms or with Articles 14, 17 or 18 of
the Order. The licence hereby granted (hereinafter referred
to as "this license") is further subject to the terms as to
revocation specified in Schedule 2.
3. This licence shall come into force on 1 April 1993 and
unless revoked in accordance with the provisions of Schedule
2 shall continue in force until determined by not less than
25 years' notice in writing given by the Director General of
Electricity Supply for Northern Ireland to the Licensee,
such notice not to be served earlier than the tenth
anniversary of the date on which this licence comes into
force.
April 1993
Director General of Electricity Supply
Northern Ireland
PART II THE CONDITIONS
Condition 1: Interpretation and construction
1. Unless the contrary intention appears:
(a) words and expressions used in the Conditions or in the
Schedules below shall be construed as if they were in an
enactment and the Interpretation Act (Northern Ireland) 1954
applied to them; and
(b) references to an enactment shall include subordinate
legislation and in both cases any statutory modification or
re-enactment thereof after the date when this licence comes
into force.
2. Any word or expression defined for the purposes of any
provision of Part II of the Order shall, unless the contrary
intention appears, have the same meaning when used in the
Conditions or in the Schedules below.
3. In the Conditions and in the Schedules below, unless
otherwise specified or the context otherwise requires:
"affiliate" in relation to any person means any holding company
or subsidiary of that person or any subsidiary of a holding
company of that 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;
"Ancillary Services" means:
(a) back start, reactive power, frequency control and such
other services as any authorised electricity operator may be
required to have available as ancillary services in association
with any generation set pursuant to the Grid Code; and
(b) such services as any authorised electricity operator may
have agreed to have available as being ancillary services in
association with any generation set pursuant to an agreement made
with the transmission licensee
and which may be offered for sale to the transmission licensee
for the purpose of securing stability of operation on the
transmission system and the distribution system of any authorised
electricity operator or any system linked to the transmission
system or distribution system by an interconnector;
"authorised" in relation to any business or activity means
authorised by licence granted under Article 10 or exemption
granted under Article 9 of the Order;
"authorised electricity operator" means any person (other than
the licensee) who is authorised to generate, transmit or supply
electricity;
"cancel" in relation to the Director, means exercise his
cancellations powers;
"cancellable generating unit agreement" means a generating unit
agreement which may be the subject of a cancellation direction,
being the generating unit agreements specified in Schedule 8 of
the transmission licence issued to Northern Ireland Electricity
plc with effect from 1 April 1992 (as it may be modified pursuant
to paragraph 12 of Condition 8 of Part III thereof or paragraph 5
of Condition 10 of Part III thereof);
"cancellation direction" means a direction issued by the Director
to cancel a cancellable generating unit agreement;
"cancellation powers" means the powers of the Director to direct
any party to a cancellable generating unit agreement to terminate
that agreement upon such date or the happening of such event as
shall be specified in the notice containing the direction;
"Community obligation" has the meaning ascribed to it in Schedule
1 to the European Communities Act 1972;
"Department" means the Department of Economic Development;
"designated" in relation to any agreement, arrangement, code,
notice, proposal therefor or other document, means designated by
the Department or on its behalf by means of initialing or
descriptive reference whether for the purposes of any Condition
of this licence or otherwise, but so that an agreement,
arrangement, code, notice, proposal therefor or other document so
designated may at the discretion of the Department cease to be
designated if amended or modified in any material respect;
"Director" means the Director General of Electricity Supply for
Northern Ireland;
"Distribution Code" means, in relation to Northern Ireland
Electricity plc, the Distribution Code required to be prepared by
it pursuant to paragraph 14 of Condition 18 of Part II of its
transmission and public electricity supply licences, and, in
relation to any other public electricity supplier, the
distribution code required to be prepared by such supplier, and
in either case approved by the Director, as from time to time
revised with the approval of the Director;
"distribution system" in relation to a public electricity
supplier means all electric lines of that public electricity
supplier within its authorised area (excepting lines forming part
of the transmission licensee's transmission system or any
interconnector) and any other electric lines which the Director
may specify as forming part of that public electricity supplier's
distribution system, and includes any electrical plant and meters
of that public electricity supplier which are used in connection
with distribution by it;
"emissions" means the discharge of substances into the air;
"generating unit agreement" means a power purchase agreement
between a generator and the power procurement manager in respect
of a generation set or combination of generation sets;
"generation licence" means a licence granted under Article
10(1)(a) of the Order;
"generation set" means any plant or apparatus for the production
of electricity;
"generator" means a person authorised by a licence granted under
Article 10(1)(a) of the Order;
"Grid Code" means the Grid Code required to be prepared by the
transmission licensee and approved by the Director as from time
to time revised amended, supplemented or replaced with the
approval or at the instance of the Director;
"interconnector" means electric lines and electrical plant and
meters used solely for conveying electricity directly to or from
a substation or converter station within Northern Ireland into or
out of Northern Ireland;
"licensee" means Northern Electric plc (registered in England
under number 2366942) and (where the context so requires) shall
include any business in respect of which the licensee is a
successor company;
"licensee's system" means the electric lines owned or operated by
the licensee through which electricity is transported from
generation sets to the point of connection with the transmission
system or the distribution system or any other system of any
authorised electricity operator for the distribution of
electricity or to the point of delivery to customers, and
includes any electrical plant and meters owned or used by the
licensee in connection therewith;
`modification" includes addition, omission, amendment and
substitution, and cognate expressions shall be construed
accordingly;
"Northern Ireland Fuel Security Code" means the document of that
title designated as such by the Department as from time to time
amended in accordance with its provisions, dealing with the
cooperation of licence holders in strategic contingency planning
in respect of fuel stocks, the modification of the merit order
and certain other systems and procedures under the Grid Code
during periods when the Department has given and there is in
force one or more directions under Article 37(4) of the Order,
the entitlement of authorised electricity operators to and the
collection of certain payments in anticipation of, during and
after the expiry of any such periods, and connected matters;
"power procurement manager" means the transmission licensee when
it is performing or required to perform its obligations as power
procurement manager under its transmission license;
"power purchase agreement" means a contract for the provision to
the licensee or any other authorised electricity operator of the
whole or any part of the available capacity and/or the sale or
other disposal to the licensee or any other authorised
electricity operator of the whole or any other authorised
electricity operator of the whole or any part of the output of a
generation set or combination of generation sets;
"power station agreement" means an agreement made with effect
from 1 April 1992 between a generator and the power procurement
manager in relation to matters concerning a generating station
and designated for the purposes of the generation licences
granted to the successor companies;
"public electricity supplier" means Northern Ireland Electricity
plc or any other holder for the time being of a licence under
Article 10(1)(c) of the Order except where he is acting otherwise
than for purposes connected with the supply of electricity to
premises in his authorized area;
"public electricity supply licence" means a licence granted
under Article 10(1)(c) of the Order;
"relating undertaking" in relation to any person means any
undertaking in which that person has a participating interest as
defined by section 260 of the Companies Act 1985 as substituted
by section 22 of the Companies Act 1989;
"relevant exempt self supplier" means a relevant exempt self
supplier within the meaning of the Electricity (Class Exemptions
from the Requirement for a Licence) Order (Northern Ireland)
1992;
"relevant licensed supplier" means a person authorised by a
licence granted under Article 10(1)(c) or 10(2) of the Order;
"relevant supplier" means a relevant licensed supplier or a
relevant exempt self supplier;
"successor company" bears the meaning ascribed to it for the
purposes of Part III of the Order;
"Supply Competition Code" means the document of that title
designated as such by the Department, as from time to time
revised, amended, supplemented or replaced with the approval or
at the instance of the Director;
"total system" means the transmission system and the distribution
system of Northern Ireland Electricity plc taken together;
"transmission licence" means a licence granted under Article
10(1)(b) of the Order;
"transmission licensee" means Northern Ireland Electricity plc or
any other holder for the time being of a transmission licence;
"transmission system" in relation to the transmission licensee
means the system of electric lines comprising the transmissions
licensee's high voltage lines and electrical plant and meters
used for conveying electricity from a generating station to a
substation, from one generating station to another, and from one
substation to another within the transmission licensee's
authorised area (except any such lines which the Director may
approve as being part of a public electricity supplier's
distribution system) and any other electric lines which the
Director may specify as forming part of the transmissions
licensee's transmission system and shall not include any
interconnector; and
"undertaking" bears the meaning ascribed to it by section 259 of
the Companies Act 1985 as substituted by section 22 of the
Companies Act 1989.
4. Subject as provided in paragraph 5, for as long as Northern
Ireland Electricity plc continues to be the holder of both
its transmission licence and public electricity supply
licence, and notwithstanding anything to the contrary in
this licence, this licence (except this paragraph and
paragraph 5) shall have effect as if:
(a) all distribution system and the transmission system of
Northern Ireland Electricity plc were a single system for
the transmission and distribution of electricity;
(b) all references to the transmission system and to the
distribution system, insofar as such systems are the systems
of Northern Ireland Electricity plc, were references to the
total system; and
(c) for as long as the Director shall not have issued any
directions to Northern Ireland Electricity plc under
paragraph 14 of Condition 18 of Part II of its transmission
and public electricity supply licences, all references to
the Distribution Code were references to the Grid Code.
5. Notwithstanding the holding by Northern Ireland Electricity
plc of both of the licences referred to in paragraph 4, the
Director may issue to the licensee directions (which may be
subject to conditions which, in the opinion of the Director,
are necessary or desirable in order to secure that the
Conditions or, as the case may be, paragraphs or sub-
paragraphs of the Conditions in which the relevant
references referred to in paragraph 4 appear, operate
separately in relation to the transmission system and the
distribution system of Northern Ireland Electricity plc)
disapplying in whole or in part the provisions of paragraph
4 if:
(a) it is necessary for him to do so in order to comply
with a Community obligation;
or
(b) there shall have been granted a subsequent licence
under Article 10(1)(b) or 10(1)(c) of the Order.
This licence shall have effect in accordance with the terms
of such directions.
6. Unless otherwise specified:
(a) any reference to a numbered Condition or to a numbered
Schedule is respectively a reference to the Condition or the
Schedule bearing that number in this licence;
(b) any reference to a numbered paragraph is a reference to
the paragraph bearing that number in the Condition or
Schedule in which the reference occurs; and
(c) (without prejudice to any provision which restricts
such variation, supplement or replacement) any reference to
any agreement, licence (other than this licence), code or
other instrument shall include a reference to such
agreement, licence, code or other instrument as varied,
supplemented or replaced from time to time.
7. The heading or title of any Part, Condition, Schedule or
paragraph shall not affect the construction hereof.
8. Where any obligation of the licensee is expressed to require
performance within a specified time limit that obligation
shall continue to e binding and enforceable after that time
limit if the licensee fails to perform that obligation
within that time limit (but without prejudice to all rights
and remedies available against the licensee by reason of the
licensee's failure to perform within the time limit).
9. The provisions of section 24 of the Interpretation Act
(Northern Ireland) 1954 shall apply for the purposes of the
delivery or service of any document, direction or notice to
be delivered or served pursuant to this licence, and
directions issued by the Director pursuant to any Condition
shall be delivered or served as aforesaid.
Condition 2: Connection and use of system - requirement to
offer terms
1. The licensee shall, subject to paragraph 6,7 and 10:
(a) offer to enter into an agreement to provide a
connection to the licensee's system with any person who has
made application for connection to the licensee's system;
and
(b) offer to enter into an agreement for the modification
of a connection to the licensee's system with any person who
has made application for modification of a connection to the
licensee's system; and
(c) offer to enter into an agreement with any authorised
electricity operator or person who shall have applied for a
licence under Article 10 of the Order and whose application
has not been withdrawn or rejected who has made application
for use of the licensee's system:
(i) to accept into the licensee's system at such entry
point and in such quantities as may be specified in the
application, electricity to be provided by or for that
person; and
(ii) to delivery electricity equal in quantity to that
accepted into the licensee's system (less only any
losses incurred in the course of transporting such
electricity through the licensee's system) from such
exit points on the licensee's system and in such
quantities as may be specified in the application to
such person as the person making the application may
specify.
2. The licensee shall, subject to paragraphs 6, 7 and 10, offer
terms for an agreement in accordance with paragraph 1 as
soon as practicable and in any event not more than the
period specified in paragraph 8 after receipt by the
licensee of an application from the person containing all
such information as the licensee may reasonably require for
the purposes of formulating the terms of its offer.
3. Each offer made in accordance with paragraph 1 shall:
(a) make detailed provision regarding such of the following
matters as are relevant for the purposes of the agreement:
(i) the carrying out of works (if any) required for
the construction or modification of the entry point to
connect the licensee's system to the transmission
system of the transmission licensee or to the
distribution system of any public electricity supplier
or the system for the distribution of electricity of
any other authorised electricity operator or in
connection with the construction or modification of any
exit points for the delivery of electricity as
specified in the application, and for the obtaining of
any consents necessary for such purpose;
(ii) the carrying out of works (if any) for the
provision of electrical plant or for the extension or
reinforcement of the licensee's system which are
required to be undertaken for the provision of
connection to, or the making of a modification to a
connection to, the licensee's system or for provision
of use of the licensee's system to the person and for
the obtaining of any consents necessary for such
purposes;
(iii) the installation of appropriate meters or
other apparatus (if any) required to enable the
licensee to measure electricity being accepted into
licensee's system at the specified entry point and
leaving such system at the specified exit points;
(iv) the installation of such switchgear or other
apparatus (if any) as may be required for interrupting
the use of the licensee's system should there be a
failure by or for a person to provide electricity at
its entry point on the licensee's system for delivery
to the person specified by the person making the
application from the exit points on the licensee's
system;
(v) the date by which any works required so as to
permit access to the licensee's system (including for
this purpose any works for its extension or
reinforcement) shall be completed and so that, unless
otherwise agreed by the person making the application,
a failure to complete such works by such date shall be
a material breach of the agreement entitling the person
to rescind such agreement;
(vi) the charges to be paid by the person making the
application for the provision of electrical plant, for
connections to or modification of connections to, or
the extension or reinforcement of, the licensee's
system, for the installation of meters, switchgear or
other apparatus and for their maintenance, for
disconnection from the licensee's system and the
removal of electrical plant, electric lines and meters
following disconnection, and for use of the licensee's
system which shall, unless manifestly inappropriate, be
set in conformity with paragraph 4; and
(b) contain such other provisions as may be appropriate for
the purposes of the agreement in the circumstances in which
it is likely to be entered into.
4. The charges referred to in paragraph 3 to be contained in
every agreement the subject of an offer by the licensee
shall be such that:
(a) charges for the provision of electrical plant,
connection charges, charges for modification of connections,
charges for disconnection from the licensee's system and the
removal of electrical plant, electric lines and meters
following disconnection or any charges for extension or
reinforcement of the licensee's system or for use of the
licensee's system are set at a level which will enable the
licensee to recover no more than:
(i) the appropriate proportion (taking account of the
factors referred to in paragraph 5) of the costs
directly or indirectly incurred by the licensee; and
(ii) a reasonable rate of return on the capital
represented by such costs; and
(b) charges for the installation of meters, switchgear or
other apparatus and for their maintenance shall not exceed
the costs thereof and a reasonable rate of return on the
capital represented by such costs.
5. For the purpose of determining an appropriate proportion of
the costs directly or indirectly incurred in carrying out
works, the licensee shall have regard to:
(a) the benefit (if any) to be obtained or likely in the
future to be obtained by the licensee or any other person as
a result of the carrying out of such works whether by virtue
of the provision of electrical plant, the reinforcement or
extension of the licensee's system, or the provision of
additional entry or exit points on the licensee's system or
otherwise; and
(b) the ability or likely future ability of the licensee to
recoup a proportion of such costs from other persons.
6. The licensee shall not be obliged pursuant to this Condition
to offer to enter into any agreement where, by reason of the
capacity of the licensee's system and the use made or
reasonably expected to be made of it, the licensee would be
required to expand or reinforce the capacity of the
licensees system.
7. The licensee shall not be obliged pursuant to this Condition
to offer to enter into any agreement with any person if:
(a) to do so would be likely to involve the licensee:
(i) in breach of the Grid Code; or
(ii) in breach of the Distribution Code; or
(iii) in breach of the Electricity Supply
Regulations (Northern Ireland) 1991 or any regulations
made under Article 32 of the Order; or
(iv) in breach of any other enactment relating to
safety or standards applicable to the licensee's
system; or
(b) the person does not undertake to be bound, insofar as
applicable, by the terms of such parts of the Codes referred
to in sub-paragraph (a)(i) and (a)(ii) above, as from time
to time in force and to such extent as the Director shall
from time to time specify in directions issued to the
licensee for the purposes of this Condition.
8. For purposes of paragraph 2, the period specified shall be:
(a) in the cases of persons seeking use of the licensee's
system only, 28 days; and
(b) in the case of persons seeking connection or
modification of an existing connection or seeking use of
the licensee's system in conjunction with connection, three
months.
9. The licensee shall within 28 days following receipt of a
request from any person, give or send to such person such
information in the possession of the licensee as may be
reasonably required by such person for the purpose of
competing the appropriate paragraphs of the Electricity
(Applications for Licenses and Extensions of Licences)
Regulations (Northern Ireland) 1992 or such provisions to
like effect contained in any further regulations then in
force made pursuant to Articles 10(3) and 64 of the Order.
10. Paragraphs 1 to 9 inclusive shall apply only if and to the
extent that the Director so directs. The licensee shall
comply with any such direction.
Condition 3: Connection and use of system - function of the
Director
1. If, after a period which appears to the Director to be
reasonable for the purpose, the licensee has failed to enter
into an agreement with any person entitled or claiming to be
entitled thereto pursuant to an application in accordance
with Condition 2, the Director may, pursuant to Article
11(3) of the Order, on the application of such person or
the licensee, settle any terms of the agreement in dispute
between the licensee and the person in question in such
manner as appears to the Director to be reasonable having
(insofar as relevant) regard, in particular, to the
following considerations:
(a) that the person should pay to the licensee the whole or
an appropriate proportion (as determined in accordance with
paragraph 5 of Condition 2) of the costs directly or
indirectly incurred by the licensee in the carrying out of
any works or in providing or doing any other thing under
the agreement in question calculated in accordance with the
principles set out in paragraph 4 of Condition 2 together
with a reasonable rate of return on the capital represented
by such costs;
(b) that the performance by the licensee of it obligations
under the agreement should not cause it to be in breach of
any other Condition of this licence;
(c) that any methods by which the licensee's system is
connected to the transmission system of the transmission
licensee or the distribution system of any public
electricity supplier or to the system for the distribution
of electricity of any other person authorised to supply
electricity accords with good engineering principles and
practices;
(d) that the terms and conditions of agreements entered
into by the licensee pursuant to an application in
accordance with Condition 2 should be, so far as
circumstances allow, as similar in substance and form as is
practicable.
2. If the person wishes to proceed on the basis of the
agreement as settled by the Director, the licensee shall
forthwith enter into and implement such agreement in
accordance with its terms.
3. If either party to an agreement for connection to, or
modification of a connection to, the licensee's system or
for use of the licensee's system entered into pursuant to
Condition 2 or this Condition proposes to vary the
contractual terms of such agreement in any manner provided
for under such agreement, the Director may, at the request
of the licensee or other party to such agreement, settle any
dispute relating to such variation in such manner as appears
to the Director to be reasonable having regard (insofar as
relevant), in particular, to the considerations set out in
subparagraph (a) to (d) of paragraph 1.
Condition 4: Compliance with Grid Code and, where applicable,
Distribution Code
1. The licensee shall comply with the provisions of the Grid
Code and the Distribution Code insofar as applicable to it.
2. The Director may, following consultation with the
transmission licensee (and, in the relevant circumstances,
any public electricity supplier), issue directions relieving
the licensee of it obligation under paragraph 1 above in
respect of such parts of the Grid Code (and, in the relevant
circumstances, the Distribution Code) and to such extent as
may be specified in those directions.
3. In this Condition, the "relevant circumstances" are where
the Director shall have issued directions to the
transmission licensee and the public electricity supplier
under paragraph 14 of Condition 18 of Part II of the
transmission and public electricity supply licenses.
4. The Director shall be entitled, in order to implement the
requisite arrangements referred to in Condition 6, to issue
directions to the transmission licensee requiring it to
revise the Grid Code in such manner and with effect from
such date as may be specified in the directions, provided
that such revisions shall not:
(a) come into effect earlier than 1 November 1996: or
(b) affect the rights or obligations of any party to:
(i) a power purchase agreement which is not a
cancellable generating unit agreement; or
(ii) a cancellable generating unit agreement which has
not, at the relevant time, been the subject of a
cancellation direction,
under that agreement beyond what my reasonably be regarded
as de minimis in relation to that person.
Condition 5: Supply Competition Code
1. The licensee shall comply with the provisions of the Supply
Competition Code insofar as applicable to it, including any
requirements thereunder for the Director's approval or
consent, for compliance with directions issued by the
Director or relating to determinations made by the Director.
2. The provisions of the Supply Competition Code shall have
effect as if they were set out in this licence.
3. The Supply Competition Code may be modified:
(a) in accordance with paragraph 4;
(b) in accordance with the provisions of the Supply
Competition Code; or
(c) not later than 1 June 1993 by the Director so as to add
in paragraph 6 of the Supply Competition Code, after
the word "manager" either:
(i) the words `provided that, in calculating such
total requirements, no account shall be taken of
electricity which a relevant supplier generates himself
where the relevant supplier, as respects that
electricity, satisfies the relevant condition. In this
paragraph, "relevant condition" has the same meaning as
in paragraph D.2(a) of Schedule 2 to the Electricity
(Class Exemptions form the Requirement for a Licence)
Order (Northern Ireland) 1992, save that the reference
therein to "person in question" shall be treated as a
reference to "relevant supplier in question"; or
(ii) such other words as the Director, after
consultation with the licensee and having taken into
consideration any representations made by the licensee,
shall determine to be requisite or expedient so as to
achieve his objective of ensuring that relevant
suppliers or any class or classes of relevant supplier
shall be entitled to purchase electricity from the
power procurement manager notwithstanding the fact that
they generate some of their requirements for
electricity themselves.
4. The Director shall be entitled to make such modifications of
the Supply Competition Code as shall, in his opinion, be
necessary to implement the requisite arrangements referred
to in Condition 6, or in accordance with paragraph 8 of that
Condition, provided that such modifications shall not come
into effect earlier than 1 November 1996
5. The modifications of the Supply Competition Code made
pursuant to paragraph 4 shall include the establishment of
procedures for its further modification with the agreement
of all licence holders and , in the absence of such
agreement, in the manner provided for in Articles 14 to 18
of the Order
6. No modification of the Supply Competition Code pursuant to
paragraph 4 shall affect the rights or obligations of any
party to:
(a) a power purchase agreement which is not a cancellable
generating unit agreement; or
(b) a cancellable generating unit agreement which has not,
at the relevant time, been the subject of a cancellation
direction,
under that agreement beyond what may reasonably be regarded
as de minimis in relation to that person.
Condition 6: Modification of Supply Competition Code and
cancellation of contracts
1. When the Director shall have determined that the requisite
arrangements have been developed and that they satisfy the
requirements of paragraph 3, he shall be entitled to
exercise the powers specified in paragraph 4, provided that
the procedural requirements of paragraph 6 have been
followed.
2. The requisite arrangements are arrangements which, if
implemented by means of the making of modifications to the
Supply Competition Code, the Grid Code and the Northern
Ireland Fuel Security Code, would facilitate an increase in
competition in the generation or supply of electricity in
Northern Ireland for the benefit of consumers of electricity
in Northern Ireland in respect of the prices charged and the
other terms of supply, the continuity of supply and the
quality of the electricity supply services provided.
3. The requirements of this paragraph are:
(A) that there is available for immediate establishment an
electricity trading system by which (except as provided in
paragraph 7) the power procurement manager and all licence
holders will be bound and which, in the opinion of the
Director, will:
(I) constitute proper and adequate arrangements for
the trading of electricity and the calculation and
settlement of payments due for the provision of
available generating capacity and the delivery or
supply of electricity;
(ii) ensure that adequate arrangements are in place for
the provision by generators of all necessary Ancillary
Services and the proper remuneration of those services;
(iii) be based upon a system of despatch of
generations sets which is technically viable and will
not prejudice the security and stability of the total
system or any part of it;
(iv) ensure that there are adequate incentives for all
generators to make available such generation capacity
as will in aggregate be sufficient to ensure that all
reasonable demands for electricity are satisfied; and
(v) ensure that all generators and relevant licensed
suppliers are contractually bound to comply with the
provisions of the Northern Ireland Fuel Security Code;
(vi) ensure that relevant suppliers shall contract
for or acquire, in aggregate, amounts of
generation capacity and quantities of electricity
form the power procurement manager which are not
less than the amounts of generation capacity and
quantities of electricity for which the power
procurement manager is committed to pay under -
(a) the power purchase agreements to which the
power procurement manager is a party and which are
cancellable generating unit agreements which at
all relevant times have not been canceled; and
(b) the power purchase agreements to which the
power procurement manager is a party and which are
not liable to be cancelled;
(vii) not in its operations require any generator
to breach any obligation incumbent upon it under the
Large Combustion Plants (Control of Emissions)
Regulations (Northern Ireland) 1991 in relation to
emissions;
(viii) contain arrangements which will ensure that
each generator which shall be a party to a cancellable
generating unit agreement, for so long as such
agreement shall not have been cancelled, shall be in no
worse a financial position in respect of its rights
under that cancellable generating unit agreement by
reason of the operation of Clause 7.3.2 of each power
station agreement;
(ix) ensure that an appropriate share of the costs of
the Land Bank Business shall be borne by each relevant
supplier;
(x) not, in its operation, cause the licensee to be
unable to finance the carrying on of the activities
which it is authorised by this licence to carry on; and
(B) that each generator which shall have applied for a
licence under Article 10(2) of the Order to have effect
from the date upon which the cancellable generating
unit agreement to which it is a party is to be
cancelled, shall have been granted such a licence,
provide
(a) the Director shall at the relevant time have power
under Article 10 of the Order to grant such a licence:
(b) the criteria for the grant of such a licence shall
otherwise have been satisfied at the date of the
application and the date upon which it is first to have
effect; and
(c) there shall have been no material change in the
circumstances of the applicant in any relevant respect
between the date of the application and the date upon
which the licence is to have effect.
4. The power referred to in paragraph 1 are powers to serve
upon the power procurement manager and the generator under a
cancellable generating unit agreement a notice directing
them to terminate the cancellable generating unit agreement
pursuant to Clause 9.3 thereof upon such date or the
happening of such event as shall be specified in the notice.
5. The power specified in paragraph 4 may not be exercised in
relation to any cancellable generating unit agreement in the
table appearing in Schedule 8 of the transmission licence
earlier than the date appearing opposite that cancellable
generating unit agreement in that table. The Director may,
in relation to any cancellable generating unit agreement and
upon the application of either party to that cancellable
generating unit agreement, modify the table appearing in
Schedule 8 of the transmission licence by substituting a
later date for the date appearing opposite that agreement in
that table.
6. The procedural requirements which require to have been
followed for the purposes of paragraph 1 are:
(a) in his preparations for the making of the determination
referred to in paragraph 1, the Director shall have
consulted with the Department, all licence holders, the
power procurement manager, the consumer committee and such
other persons as the Director shall consider likely to be
materially affected in relation to the steps that he
believes require to be taken and the documentation and other
obligations which he believes require to be entered into,
imposed or assumed in order to satisfy the requirements of
paragraph 3 and to create and implement the requisite
arrangements;
(b) in the consultations referred to in sub-paragraph (a)
above, the Director shall have made available to each person
so consulted such drafts of the documentation in question
and of the instruments or other means by which the
obligations in question are to be imposed or assumed, as he
shall consider are necessary so as properly to inform such
persons of the detail of his proposals;
(c) the Director shall have given each person so consulted
the opportunity to make representations in relation to the
relevant steps and relevant documentation and shall have
taken into consideration all such representations (other
than those which are frivolous or trivial) in making the
determinations;
(d) the Director shall have published his conclusions as to
the relevant steps (including drafts of the relevant
documentation) and his reasons for those conclusions;
(e) the Director shall, before exercising any power under
paragraph 4, have given not less than 180 days' notice to
the Department, the power procurement manager, every person
who at the time he gives the notice is a licence holder, and
the consumer committee that he intends to do so; and
(f) the Director shall, in publishing any statement of
proposals or the reasons for them, have treated as
confidential any representation (including any submission of
any written material) which (and to the extent that) the
person making the representation shall, by notice in writing
to the Director or by endorsement on the representation of
words indicating the confidential nature of such
representation, have specified as confidential information.
7. The rules of the electricity trading system referred to in
paragraph 3(A) contained in the Supply Competition Code as
modified by the Director in the exercise of his powers under
paragraph 3 of Condition 5 of Part III of the transmission
licence, may provide that they are to apply to all licence
holders except if and to the extent that:
(a) they permit the Director to relieve the licence holder
in question from compliance with them or any of them; or
(b) they make provision that they are to apply to
particular licence holders or classes of licence holder
differently from the way or ways in which they apply to
other licence holders.
8. Notwithstanding paragraph 6, the Director shall be entitled,
after having carried out the consultations referred to in
paragraph 6 and published his conclusions, both before and
after he shall have given any notice of the kind referred to
in sub-paragraph (e) of paragraph 6, to make any
modification of the relevant documentation which:
(a) is, in his opinion, necessary or desirable in order to
refine the requisite arrangements;
(b) involves only a change of technical nature in the
requisite arrangements; and
(c) will not increase the liability or decrease the rights
of any person bound or to be bound by the Supply Competition
Code beyond what may be regarded as reasonable in relation
to that person,
provided he give due notice of such amendment or variation
to such persons as appear to him to be likely to be affected
thereby.
9. The licensee shall afford the Director such co-operation as
he shall in directions issued to the licensee for the
purposes of this Condition request in developing and testing
his proposals for the establishment of the requisite
arrangements and the electricity trading system referred to
in paragraph 3(A).
10. The licensee's reasonable direct costs of complying with a
request made under paragraph 9 (incurred prior to the date
upon which the Director shall have first exercised his
cancellation powers and for which and invoice shall have
been submitted by the licensee to the transmission licensee
not later than 2 months prior to the date upon which the
first cancellation direction shall take effect) shall be
audited in such manner as the Director shall from time to
time require and shall be recoverable from the transmission
licensee.
11. In this Condition:
"consumer committee" means the committee appointed by the
Director under Article 7 of the Order;
"grid operator" means the transmission licensee when it is
performing or required to perform it obligations under
Condition 11 of Part III of its transmission licence;
"Land Bank Business" means the business of Northern Ireland
Electricity plc in the discharge of its obligations under
Condition 12 of Part III of its transmission licence;
"licence holder" means the holder of a licence granted under
Article 10 of the Order;
"modification" includes addition, omission, amendment and
substitution, and cognate expressions shall be construed
accordingly;
"relevant documentation" means the documentation and other
obligations referred to in sub-paragraph (a) of paragraph
6;
"relevant steps" means the steps referred to in sub-
paragraph (a) of paragraph 6; and
"requisite arrangements" means the arrangements referred to
as such in paragraph 2
Condition 7: Licensee's system planning
1. The licensee shall plan and develop each part of the
licensee's system in accordance with a standard not less
than the relevant standard insofar as applicable to it or
such other standard of planning as the licensee may,
following consultation with the transmission licensee, each
public electricity supplier and such (if any) other
authorised electricity operators as the Director shall
consider appropriate and with the approval of the Director,
adopt from time to time.
2. The Director may (following consultation with the licensee,
the transmission licensee, each public electricity supplier
and such (if any) other authorised electricity operators as
the Director shall consider appropriate) issue directions
relieving the licensee of its obligation under paragraph 1
in respect of such parts of the licensee's system and to
such extent as may be specified in the directions.
3. In this Condition:
"relevant standard" means the standard laid down in the
document entitled Transmission and Distribution System
Security and Planning Standards" as submitted form time to
time by the transmission licensee to and approved by the
Director.
Condition 8: Security arrangements
1. The licensee shall comply with the provisions of the
Northern Ireland Fuel Security Code and such provisions
shall have effect as if they were set out in this licence.
2. The Northern Ireland Fuel Security Code may be amended in
accordance with its
provisions
Condition 9: Compulsory acquisition of land
1. All the powers and rights conferred by or under the
provisions of Schedule 3 of the Order (compulsory
acquisition of land) shall have effect in relation to the
licensee to the extent that they are required for the
installation, maintenance, removal ore replacement of the
licensee's system or any part thereof which are necessary to
enable the licensee to supply electricity to the premises
specified in Schedule 1.
2. The powers referred to in paragraph 1 shall not apply to
land forming part of the land bank.
3. Paragraphs 1 and 2 inclusive:
(a) shall cease to have effect on 31 March 1996 unless the
Director shall before such date have substituted a later
date in directions issued to the licensee for the purposes
of this Condition; and
(b) may be brought into effect after they shall have ceased
to have effect on such date as the Director shall specify in
directions issued to the licensee for the purposes of this
Condition.
4. In this Condition:
"land" includes any right, easement or other interests in land
and any wayleave; and
"land bank" means the land more fully described in Schedule 9 of
the transmission licence granted to Northern Ireland Electricity
plc together with such additional land as shall be acquired by
Northern Ireland Electricity plc as the holder of that licence by
virtue of any requirement that a generator shall transfer to it a
freehold interest in any land.
Condition 10: Powers to carry out road works etc
1. The powers and rights conferred by or under the provisions
of Schedule 4 of the Order (other powers, etc., of licence
holders) shall have effect and may be exercised by carrying
out works in relation to, or in pursuance of, the
installation, inspection, maintenance, adjustment, repair,
alteration, replacement and removal of:
(a) electric lines which are necessary to enable the
licensee to supply electricity to
the premises specified in Schedule 1;
(b) electrical plant associated with such lines; and
(c) any structures for housing or covering such lines or
plant.
2. Paragraph 1:
(a) shall cease to have effect on 31 March 1996 unless the
Director shall before such date have substituted a later
date in directions issued to the licensee for the purposes
of this Condition; and
(b) may be brought into effect after it shall have ceased
to have effect on such date as the Director shall specify in
directions issued to the licensee for the purposes of
this Condition.
Condition 11: Health and safety of employees
It shall be the duty of the licensee to act together with
other licence holders to consult with appropriate
representatives of the employees for the purpose of
establishing and maintaining an appropriate machinery or
forum for the joint consideration of matters of mutual
concern in respect of the health and safety of persons
employed by those licence holders.
Condition 12: Provision of information to the Director
1. Subject to paragraph 2 and 3, the licensee shall furnish to
the Director, in such manner and at such times as the
Director may require, such information and shall procure and
furnish to him such reports, as the Director may consider
necessary in the light of the Conditions or as he may
require for the purpose of performing:
(a) the functions assigned to him by or under the Order;
and
(b) any functions transferred to him under the Order.
2. The licensee may not be required by the Director to furnish
him under this Condition with information for the purpose of
the exercise of his functions under Article 51 of the Order.
3. The licensee may not be required by the Director to furnish
him under this Condition with any information required in
relation to an enforcement matter which the licensee could
not be compelled to produce or give under Article 31(3) of
the Order.
4. The power of the Director to call for information under
paragraph 1 is in addition to the power of the Director to
call for information under or pursuant to any other
Condition.
5. In paragraph 1 to 4, "information" shall include any
documents, accounts, estimates, returns or reports (whether
or not prepared specifically at the request of the Director)
or any description specified by the Director.
6. The licensee shall, if so requested by the Director, give
reasoned comments on the accuracy and text of any
information and advise (so far as relating to the supply of
electricity authorised by this licence) which the Director
proposed to publish pursuant to Article 51 of the Order.
Condition 13: Payment of fees
1. The licensee shall, at the times stated hereunder, pay to
the Director fees of the amount specified in, or determined
under, the following paragraphs of this Condition.
2. Within 30 days after the grant of this licence but, in any
event before 30 April 1993, the licensee shall pay to the
Director an initial fee of 250.00 pounds sterling.
3. In respect of the year beginning on 1 April 1994 and in each
subsequent year, the licensee shall pay to the Director a
fee which is the aggregate of the following amounts:
a) an amount which is a proportion, as determined by the
Director of the amount estimated by the Director, according
to a method which has previously been disclosed in writing
to the licensee, as likely to be his costs during the coming
year in the exercise of his general functions under the
Order in relation to the holders of licences granted under
Article 10(1) and 10(2) of the Order:
(b) an amount which is a proportion as determined by the
Director of the amount estimated by the Director (in
consultation with the Monopolies Commission) as having been
incurred in the calendar year immediately preceding the 1
April in question by the Monopolies Commission in connection
with references made to it under Article 15 of the Order
with respect to this licence or any other licence issued
under Article 10(2) of the order; and
(c) the difference (being a positive or a negative amount),
if any, between:
(i) in the amount of the fee paid by the licensee in
respect of the year immediately preceding the 1 April
in question; and
(ii) the amount which that fee would have been in
respect of that year had the amount comprised therein
under sub-paragraph (a) above (or, where that year
commenced on 1 April 1992, had the amount comprised
therein which was attributable to the matters referred
to in that sub-paragraph, as determined by the Director
according to a method disclosed in writing to the
licensee) been calculated by reference to the total
costs of the Director and the proportion thereof
actually attributable to the licensee (such total costs
being apportioned as determined by the Director
according to a method previously disclosed in writing
to the licensee.)
and the fee shall be paid by the licensee to the
Director within one month of the Director giving notice to
the licensee of its amount if that notice is given within
six months of the beginning of the year in respect of which
the fee is payable.
SCHEDULE 1
Specified Premises
All premises in Northern Ireland
SCHEDULE 2
Terms as to revocation
1. The Director may at any time revoke this licence by not less
than 30 days' notice in writing to the licensee:
(a) if the licensee agrees in writing with the Director
that this licence should be revoked;
(b) if any amount payable under Condition 13 is unpaid 30
days after it has become due and remains unpaid for a period
of 14 days after the Director has given the licensee notice
that the payment is overdue. Provided that no such notice
shall be given earlier than the sixteenth day after the day
on which the amount payable became due;
(c) if the licensee fails to comply with the final order
(within the meaning of Article 3 of the Order) or with a
provisional order (within the meaning of Article 3 of the
Order) which has been confirmed under Article 28 of the
Order and which (in either case) has been made in respect of
a contravention or apprehended contravention of any of the
Conditions or of any relevant requirement (within the
meaning of Article 3 of the Order) imposed on the licensee
in its capacity as holder of this licence and (in either
case) such failure is not rectified to the satisfaction of
the Director within three months after the Director has
given notice of such failure to the licensee. Provided that
no such notice shall be given by the Director before the
expiration of the period within which an application under
Article 30 or the Order could be made questioning the
validity of the final or provisional order or before the
proceedings relating to any such application are finally
determined;
(d) if the licensee fails to comply with any order made by
the Secretary of State under Section 56, 73, 74 or 89 of the
Fair Trading Act 1973 or under Section 10(2)(a) of the
Competition Act 1980;
(e) if:
(i) none of the premises specified, or of the
description specified, in Schedule 1 shall have been
supplied with electricity by the licensee at any time
during the period of 5 years commencing on the date on
which this licence comes into force; or
(ii) none of the premises specified, or of the
description specified, in Schedule 1 shall have been
supplied with electricity by the licensee at any time
during any period of 5 years.
(f) if the licensee:
(i) is unable to pay its debts (within the meaning of
section 123(1) or (2) of the Insolvency Act 1986, but
subject to paragraph 2 of this Schedule) or if any
voluntary arrangement is proposed in relation to it
under section 1 of the Act or if it 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 Director); or
(ii) has a receiver (which expression shall include an
administrative receiver within the meaning of section
251 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
Director; or
(v) becomes subject to an order for winding up by a
court of competent jurisdiction; or
(vi) shall suffer any event analogous to any of the
foregoing in any jurisdiction in which it is
incorporated or resident; or
(g) if the licensee is convicted of having committed an
offence under Article 63 of the Order.
2. (a) For the purposes of paragraph 1(f)(i) of this Schedule,
section 123(1)(a) of the Insolvency Act 1986 shall have
effect as if for "750 pounds sterling" there was
substituted "250,000 pounds sterling" or such higher
figure as the Director may from time to time determine
by notice in writing to the licensee.
(b) The licensee shall not be deemed to be unable to pay
its debts for the purposes of paragraph 1(f)(i) of this
Schedule if any such demand as is mentioned in section
123(1)(a) of the Insolvency Act 1986 is being contested in
good faith by the licensee with recourse to all appropriate
measures and procedures or if any such demand is satisfied
before the expiration of such period as may be stated in any
notice given by the Director under paragraph 1 of this
Schedule.
SECOND TIER LICENCE TO SUPPLY ELECTRICITY
FOR
NORTHERN ELECTRIC PLC
TABLE OF CONTENTS
PART I: TERMS OF THE LICENSE 1
PART II: THE CONDITIONS 2
CONDITION 1: INTERPRETATION AND CONSTRUCTION 2
CONDITION 2: RESTRICTION ON SUPPLY TO CERTAIN PREMISES 5
CONDITION 3: CONNECTION AND USE OF SYSTEM - REQUIREMENT TO OFFER TERMS 7
CONDITION 3A: CONNECTION AND USE OF SYSTEM - FUNCTIONS OF THE DIRECTOR 11
CONDITION 4: COMPLIANCE WITH SCOTTISH GRID CODES 12
CONDITION 5: COMPLIANCE WITH SCOTTISH DISTRIBUTION CODES 13
CONDITION 6: COMPLIANCE WITH TRADING CODE 14
CONDITION 7: LICENSEE'S SYSTEM PLANNING 15
CONDITION 8: GENERATION SECURITY STANDARD 16
CONDITION 9: SECURITY ARRANGEMENTS 19
CONDITION 10: HEALTH AND SAFETY OF EMPLOYEES 20
CONDITION 11: PROVISION OF INFORMATION TO THE DIRECTOR 21
CONDITION 12: PAYMENT OF FEES 22
CONDITION 13: COMPULSORY ACQUISITION OF LAND ETC. 23
CONDITION 14: POWERS TO CARRY OUT ROAD WORKS ETC. 24
SCHEDULE 1 25
SPECIFIC PREMISES 25
SCHEDULE 2 26
TERMS AS TO REVOCATION 26
SECOND-TIER LICENCE TO SUPPLY ELECTRICITY
PART I: TERMS OF THE LICENSE
1. The Director General of Electricity Supply in accordance
with a general authority given by the Secretary of State
under Sections 6(1) and (2) of the Electricity Act 1989
(hereinafter referred to as "the Act") and the exercise of
the powers conferred by Section 6(2)(a), Section 6(6), and
Section 7 of the Act hereby licenses Northern Electric Plc
(registered in England under number 2366942) to supply
electricity to the premises specified in Schedule 1 below
during the period specified in paragraph 3 below, subject to
the Conditions set out in Part II below (hereinafter
referred to as the "Conditions").
2. The Conditions are subject to modification or amendment in
accordance with their terms or with Sections 11, 14 or 15 of
the Act. The licence is further subject to the terms as to
revocation specified in Schedule 2.
3. This licence shall come into force on 1 April 1991 and
unless revoked in accordance with the provisions of Schedule
2 shall continue until determined by not less than 25 years'
notice in writing given by the Director General of
Electricity Supply to the licensee, such notice in writing
given by the Director General of Electricity Supply to the
licensee, such notice not to be served earlier than a date
being 10 years after the licence comes into force.
Dr. Eileen Marshall
authorised on behalf of the
25 March 1991 Director General of Electricity Supply
PART II: THE CONDITIONS
Condition 1: Interpretation and construction
1. Unless the contrary intention appears, words and expressions
used in the Conditions or in the Schedules below shall be
construed as if they were in an Act of Parliament and the
Interpretation Act 1978 applied to them and references to an
enactment shall include any statutory modification or reenactment
thereof after the date when this licence comes into force.
2. Any word or expression defined for the purposes of any
provision of Part I of the Act shall, unless the contrary
intention appears, have the same meaning when used in the
Conditions or in the Schedules below.
3. In the Conditions and in the Schedules below unless
otherwise specified or the context otherwise requires:
"affiliate" in relation to any person means 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 1989 and if that
Section is not in force at the date of grant of this licence as
if such Section were in force at such date.
"authorised" in relation to any business or activity means
authorised by licence granted under Section 6 or exemption
granted under Section 5 of the Act.
"authorised electricity operator" means any person (other than
the licensee) who is authorised to generate, transmit or supply
electricity.
"designated" in relation to any agreement means designated by the
Secretary of State or on his behalf by means of initialling or
descriptive reference whether for the purposes of any Condition
of this licence or otherwise, but so that an agreement so
designated may at the discretion of the Secretary of State cease
to be designated if amended or modified in any material respect.
"Distribution Code" means, in relation to any public electricity
supplier, the Distribution Code required to be prepared by such
supplier and approved by the Director as from time to time
revised with the approval of the Director.
"distribution system" in relation to any public electricity
supplier, shall have the same meaning as it has for the purposes
of the licence held by such supplier under Section 6(1)(c) of the
Act or, in the event that such supplier holds more than one such
licence at any time, it shall mean at that time each system which
is defined as the distribution system of that supplier in such
licences (taken together with each other system which is so
defined).
"equivalent megawatt" in circumstances where demand is only
measured in megavolt amperes, means megavolt amperes converted
into megawatts using for this purpose a power factor of 0.9
megawatts per megavolt ampere or such other factor as may with
the approval of the Director be taken as being appropriate having
regard to electrical characteristics of the supply, and cognate
expressions shall be construed accordingly.
"Grid Code" means, in relation to any transmission licensee, the
Grid Code required to be prepared by such transmission licensee
and approved by the Director as from time to time revised with
the approval of the Director.
"licensee" means Northern Electric plc (registered number
2366942) and (where the context so requires) shall include any
business in respect of which the licensee is the successor
company.
"licensee's system" means the electric lines of the licensee
through which the licensee supplies electricity to premises
pursuant to this licence and includes any electrical plant and
meters of the licensee which are used in connection with the
transport of electricity through such lines.
"megawatt" or "MW" includes an equivalent megawatt.
"related undertaking" in relation to any person means any
undertaking in which such a person has a participating interest
as defined by Section 260 of the Companies Act 1985 as
substituted by Section 22 of the Companies Act 1989 and if that
Section is not in force at the date of grant of this licence as
if such Section were in force at such date.
"Scottish transmission licensee" means a person who holds a
licence under Section 6(1)(b) of the Act for an authorised area
in Scotland.
"successor company" has the meaning ascribed to it for the
purposes of Part II of the Act.
"Trading Code" means the Trading Code required to be adopted by
the Scottish transmission licensees, as from time to time revised
with the approval for the Director.
"transmission licensee" means a person who holds a licence under
Section 6(1)(b) of the Act.
"transmission system" in relation to any transmission licensee,
shall have the same meaning as it has for the purposes of the
licence held by such licensee under Section 6(1)(b) of the Act
or, in the event that such licensee holds more than one such
licence at any time, it shall mean at that time each system which
is defined as the transmission system of that licensee in such
licenses (taken together with each other system which is so
defined).
"undertaking" bears the meaning ascribed to that expression by
Section 259 of the Companies Act 1985 as substituted by Section
22 of the Companies Act 1989 and if that Section is not in force
at the date of grant of this licence as if such Section were in
force at such date.
4. Unless otherwise specified, any reference to a numbered
Condition or to a numbered Condition with a suffix letter or to a
numbered Schedule is respectively a reference to the Condition,
or to the Condition with a suffix letter or to the Schedule
bearing that number in this licence, and any reference to a
numbered paragraph or to a numbered paragraph with a suffix
letter is respectively a reference to the paragraph or to the
paragraph with a suffix letter bearing that number in the
Condition or Schedule in which the reference occurs.
5. The hearing or title of any Part, Condition, Schedule or
paragraph shall not affect the construction hereof.
6. Where any obligation of the licensee is expressed to require
performance within a specified time limit that obligation shall
continue to be binding and enforceable after that time limit if
the licensee fails to perform that obligation within that time
limit (but without prejudice to all rights and remedies available
against the licensee by reason of the licensee's failure to
perform within the time limit).
7. The provisions of Section 109 of the Act shall apply for the
purposes of the delivery or service of any documents, directions
or notices to be delivered or served pursuant to any Condition or
Schedule and directions issued by the Director pursuant to any
Condition or Schedule shall be delivered or served as aforesaid.
Condition 2: Restriction on supply to certain premises
1. Save as provided in paragraphs 3 and 5 below the licensee
shall not during the franchise period supply electricity to any
single premises at which the relevant demand in megawatts is at
or below the franchise limit.
2. In determining for the purposes of this Condition whether
any single premises falls within the franchise limit the licensee
shall have regard to the following bases of assessment:
(a) in respect of premises occupied by existing customers
the relevant demand in megawatts shall be calculated as an
average of the maximum monthly demands under normal
operating conditions at such single premises supplied by one
or more authorised electricity operators and/or the licensee
in the 3 months of highest maximum demand as recorded over
the most recent 12 month period in respect of which figures
are available; and
(b) in respect of premises occupied by a new customer
seeking a supply from the licensee the relevant demand in
megawatts shall be calculated by reference to the average
maximum monthly demand which might reasonably be expected in
the 3 months of highest maximum demand over a 12 month
period at premises having similar demand characteristics to
the premises occupied by such new customer.
2A. For the purposes of paragraph 2, if any electricity which
has been or is to be supplied by the licensee to any single
premises ("premises A") is or will be on-supplied by another
person from premises A to one or more single premises ("premises
B") then:
(a) if the on-supply to premises B from premises A was made
on 31st March 1990 by that other person pursuant to an
agreement for that other person to supply premises B which
was subsisting on that date that demand at premises B which
is met by such on-supply from premises A may be regarded as
part of the relevant demand in megawatts at premises A; and
(b) save as provided in sub-paragraph (a) above, that
demand at premises B which is met by such on-supply from
premises A shall not be regarded as part of the relevant
demand in megawatts at premises A.
3. Subject to paragraph 4, if at any time during the franchise
period the relevant demand in megawatts (calculated in accordance
with paragraph 2 and 2A) at any single premises to which a supply
is given by the licensee in accordance with the provisions of
this Condition should fall to or below the franchise limit the
licensee may, notwithstanding such fact, continue to supply such
premises without being in breach of this Condition until such
time as:
(a) any contract existing between the licensee and the
customer occupying such premises is determined by effluxion
of time or otherwise; or
(b) the supply arrangements between the licensee and the
customer occupying such premises shall for any other reason
be terminated.
4. Save where the Director otherwise agrees, if (having regard
to the basis of assessment referred to in paragraph 2(b)) the
relevant demand in megawatts of a customer who was a new customer
at the time of commencement of supply by the licensee should, in
the first 12 month period for which figures are available, prove
to be less than was reasonably expected of such customer and to
fall to or below the franchise limit, the licensee shall cease to
supply such customer.
5. Notwithstanding paragraph 1, the licensee may supply
electricity to single premises at which the relevant demand in
megawatts is at or below the franchise limit where such single
premises are specified for the purposes of this licence by the
Director with the prior approval of the Secretary of State.
6. For the purposes of paragraph 2(a), where the average
calculated as there provided, but ignoring for this purpose the
reference to normal operating conditions, was no more than 10 per
cent higher than the average (calculated in the same manner) over
the twelve-month period preceding the twelve-month period
referred to in paragraph 2(a), the maximum monthly demands from
which the average was derived shall be presumed to have occurred
under normal operating conditions.
7. Any dispute arising under the provisions of this Condition
between the licensee and any authorised electricity operator or
any person requiring a supply of electricity from the licensee
may be referred to the Director and the Director shall determine
whether the premises in respect of which the customer requires a
supply to be given fall within the franchise limit.
8. In this Condition:
"existing customer" means any person occupying premises to which
a supply is being given by the licensee or any other authorised
electricity operator, which person (or any affiliate or related
undertaking of such person) and premises have been supplied for a
clear period of at least 12 months prior to the date on which
application for supply by the licensee is made.
"franchise limit" means:
(a) during the 4 year period from 31st March 1990 to 30th March
1994 one megawatt; and
(b) during the succeeding 4 year period from 31st March 1994 to
30th March 1998 0.1 megawatt.
"franchise period" means the period of 8 years commencing on 31st
March 1990.
"new customer" means any person supplied or applying for a supply
to premises other than an existing customer.
"single premises" includes in the case of sites or buildings in
multi-occupation, each area in respect of which the supply of
electricity was as at 31st December 1989 or is to is to be
separately metered and the occupier individually invoiced by the
licensee or any authorised electricity operator.
Condition 3: Connection and use of system - requirement to
offer terms
1. The licensee shall, subject to paragraphs 6, 7 and 10:
(a) offer to enter into an agreement to provide a
connection to the licensee's system with any person who has
made application for connection to the licensee's system;
and
(b) offer to enter into an agreement for the modification
of a connection to the licensee's system with any person who
has made application for modification of a connection to the
licensee's system; and
(c) offer to enter into any agreement with an person who
has made application for use of system:
(i) to accept into the licensee's system at such entry
point and in such quantities as may be specified in
application, electricity to be provided by or for the
person; and
(ii) to deliver electricity equal in quantity to that
accepted into the licensee's system (less only any
losses incurred in the course of transporting such
electricity through the licensee's system) from such
exit points on the licensee's system and in such
quantities as may be specified in the application to
such person as the person making the application may
specify.
2. The licensee shall, subject to paragraphs 6 and 7, offer
terms for an agreement in accordance with paragraph 1 as soon as
practicable and in any event not more than the period specified
in paragraph 8 after receipt by the licensee of an application
from the person containing all such information as the licensee
may reasonably require for the purpose of formulating the terms
of its offer.
3. Each offer made in accordance with paragraph 1 shall:
(a) make detailed provision regarding such of the following
matters as are relevant for the purposes of the agreement:
(i) the carrying out of works (if any) required for
the construction or modification of the entry point to
connect the licensee's system to the transmission
system of any transmission licensee or the distribution
system of any public electricity supplier or the system
for the distribution of electricity of any other person
authorised to supply electricity or in connection with
the construction or modification of any exit points for
the delivery of electricity as specified in the
application and for the obtaining of any consents
necessary for such purpose;
(ii) the carrying out of works (if any) for the
provision of electrical plant or for the extension or
reinforcement of the licensee's system which are
required to be undertaken for the provision of
connection to, or the making of a modification to a
connection to, the licensee's system or for provision
of use of the licensee's system to the person and for
the obtaining of any consents necessary for such
purpose;
(iii) the installation of appropriate meters or
other apparatus (if any) required to enable the
licensee to measure electricity being accepted into the
licensee's system at the specified entry point and
leaving such system at the specified exit points;
(iv) the installation of such switchgear or other
apparatus (if any) as may be required for interrupting
the use of system should there be a failure by or for a
person to provide electricity at its entry point on the
licensee's system for delivery to the person specified
by the person in its application from the exit points
on the licensee's system;
(v) the date by which any works required so as to
permit access to the licensee's system including for
this purpose any works for its extension or
reinforcement) shall be completed (and so that, unless
otherwise agreed by the person making the application,
a failure to complete such works by such date shall be
a material breach of the agreement entitling the person
to rescind such agreement);
(vi) the charges to be paid by the person making the
application for the provision of electrical plant, for
connections to or modification of connections to, or
the extension or reinforcement of, the licensee's
system, for the installation of meters, switchgear or
other apparatus and for their maintenance, for
disconnection from the licensee's system and the
removal of electrical plant, electric lines and meters
following disconnection and for use of system which
shall, unless manifestly in appropriate, be set in
conformity with paragraph 4; and
(b) contain such provisions as may be appropriate for the
purposes of the agreement in the circumstances in which it
is likely to be entered into.
4. The charges referred to in paragraph 3 to be contained in
every agreement subject of an offer by the licensee shall be such
that:
(a) charges for the provision of electrical plant,
connection charges, charges for modification of connections,
charges for disconnection from the licensee's system and the
removal of electrical plant, electric lines and meters
following disconnection or any charges for extension or
reinforcement of the licensee's system or for use of system
are set at a level which will enable the licensee to recover
no more than:
(i) the appropriate proportion (taking account of the
factors referred to in paragraph 5) of the costs
directly or indirectly incurred by the licensee; and
(ii) a reasonable rate of return on the capital
represented by such costs; and
(b) charges for the installation of meters, switchgear or
other apparatus and for their maintenance shall not exceed
the costs thereof and a reasonable rate of return on the
capital represented by such costs.
5. For the purpose of determining an appropriate proportion of
the costs directly or indirectly incurred in carrying out works,
the licensee shall have regard to:
(a) the benefit (if any) to be obtained or likely in the
future to be obtained by the licensee or any other person as
a result of the carrying out of such works whether by virtue
of the provision of electrical plant, the reinforcement or
extension of the licensee's system or the provision of
additional entry or exit points on the licensee's system or
otherwise; and
(b) the ability or likely future ability of the licensee to
recoup a proportion of such costs from other persons.
6. The licensee shall not be obliged pursuant to this Condition
3 to offer to enter into any agreement where, by reason or the
capacity of the licensee's system and the use made or reasonably
expected to be made of it, the licensee would be required to
expand or reinforce the capacity of the licensee's system.
7. The licensee shall not be obliged pursuant to this Condition
3 to offer to enter into any agreement with any person if:
(a) to do so would be likely to involve the licensee:
(i) in breach of the Grid Code of any transmission
licensee; or
(ii) in breach of the Distribution Code of any public
electricity supplier; or
(iii) in breach of the Electricity Supply
Regulations 1988 or any regulations made under Section
29 of the Act; or
(iv) in breach of any other enactment relating to
safety or standards applicable to the licensee's
system; or
(b) the person does not undertake to be bound, insofar as
applicable, by the terms of the Codes referred to in sub-
paragraphs (a)(i) and (a)(ii) above, as from time to time in
force.
8. For the purpose of paragraph 2, the period specified shall
be:
(a) in the case of persons seeking use of system only, 28
days; and
(b) in the case of persons seeking connection or
modification of an existing connection or seeking use of
system in conjunction with connection, 3 months.
9. The licensee shall within 28 days following receipt of a
request from any person, give or send to such person such
information in the possession of the licensee as may be
reasonably required by such person or the purpose of completing
paragraph 8 of Part 1 and paragraphs 2(v) and (vi) of Part 2 of
Schedule 2 to the Electricity (Application for Licences and
Extensions of Licences) Regulations 1990 or such provisions to
like effect contained in any further regulations then in force
made pursuant to Sections 6(3), to the extent that, the Director
so directs and the licensee shall comply with any such direction.
10. Paragraphs 1 to 9 inclusive above shall apply only if, and
to the extent that, the Director so directs and the licensee
shall comply with any such direction.
Condition 3A: Connection and use of system - functions of the
Director
1. If, after a period which appears to the Director to be
reasonable for the purpose, the licensee has failed to enter into
an agreement with any person entitled to claiming to be entitled
thereto pursuant to an application in accordance with Condition
3, the Director may, pursuant to Section 7(3) of the Act, on the
application of such person or the licensee, settle any terms of
the agreement in dispute between the licensee and the person in
such manner as appears to the Director to be reasonable having
(insofar as relevant) regard, in particular, to the following
considerations:
(a) that the person should pay to the licensee the whole or
an appropriate proportion (as determined in accordance with
paragraph 5 of Condition 3) of the costs directly or
indirectly incurred by the licensee in the carrying out of
any works or in providing or doing any other thing under the
agreement in question calculated in accordance with the
principles set out in paragraph 4 of Condition 3 together
with a reasonable rate of return on the capital represented
by such costs;
(b) that the performance by the licensee of its obligations
under the agreement should not cause it to be in breach of
any of the Conditions;
(c) that any methods by which the licensee's system is
connected to the transmission system of any transmission
licensee or the distribution system of any public
electricity supplier or the system for the distribution of
electricity of any other person authorised to supply
electricity accord with good engineering principle sand
practices;
(d) that the terms and conditions of agreements entered
into by the licensee pursuant to an application in
accordance with Condition 3 should be, so far as
circumstances allow, as similar in substance and form as is
practicable.
2. If the person wishes to proceed on the basis of the
agreement as settled by the Director, the licensee shall
forthwith enter into and implement such agreement in accordance
with its terms.
3. If the licensee proposes to vary the contractual terms of
any agreement for connection to, or modification of a connection
to, the licensee's system or for use of system entered into
pursuant to Condition 3 or this Condition in any manner provided
for under such agreement, the Director may, at the request of the
licensee or other party to such agreement, settle any dispute
relating to such variation in such manner as appears to the
Director to be reasonable.
Condition 4: Compliance with Scottish Grid Codes
1. The licensee shall comply with the provisions of the Grid
Code of each Scottish transmission licensee insofar as applicable
to it.
2. The Director may (following consultation with such Scottish
transmission licensees as the Director shall consider
appropriate) issue directions relieving the licensee of its
obligation under paragraph 1 in respect of such parts of the Grid
Code of any Scottish transmission licensee and to such extent as
may be specified in those directions.
3. In this Condition
"authorised activities" means the activities which the licensee
is authorised by this licence to carry on.
Condition 5: Compliance with Scottish Distribution Codes
1. The licensee shall comply with the provisions of the
Distribution Code of each Scottish public electricity supplier
insofar as applicable to it.
2. The Director may (following consultation with such Scottish
public electricity suppliers as the Director shall consider
appropriate) issue directions relieving the licensee of its
obligation under paragraph 1 in respect of such parts of the
Distribution Code of any Scottish public electricity supplier and
to such extent as may be specified in those directions.
Condition 6: Compliance with Trading Code
1. The licensee shall comply with the provisions of the Trading
Code insofar as applicable to it during any period that the
license is a member of the trading system established by the
Trading Code, including any requirements thereunder for the
Director's approval or consent, for compliance with directions
issued by the Director or relating to determinations made by the
Director.
2. The Director may (following consultation, with such members
of the trading system established by the Trading Code as the
Director shall consider appropriate) issue directions relieving
the licensee of its obligation under paragraph 1 in respect of
such parts of the Trading Code and to such extent as may be
specified in those directions.
Condition 7: Licensee's system planning
1. The licensee shall plan and develop each part of the
licensee's system in accordance with a standard not less than the
relevant standard insofar as applicable to it, or such standard
of planning as the licensee may, following consultation with such
(if any) authorised electricity operators as the Director shall
consider appropriate and with the approval of the Director, adopt
from time to time.
2. The Director may (following consultation with the licensee
and such other (if any) authorised electricity operators as the
Director shall consider appropriate) issue directions relieving
the licensee of its obligation under paragraph 1 in respect of
such parts of the licensee's system and to such extent as may be
specified in the directions.
3. In this Condition:
"relevant standard" means, in relation to each part of the
licensee's system, whichever of the following standards is
applicable to that part namely:
(i) the standard in accordance with which the transmission
licensee within whose authorised area that part is situated is
required under the licence held by it under Section 6(1) (b) of
the Act to plan and develop its transmission system; or
(ii) the standard in accordance with which the public electricity
supplier within whose authorised area that part is situated is
required under the licence held by it under Section 6(1) (c) of
the Act to plan and develop its distribution system.
Condition 8: Generation security standard
1. The licensee shall make arrangements sufficient to meet the
generation security standard.
2. Not later than 3 months before the end of each financial
year, commencing with the financial year ending on 31 March 1992,
the licensee shall provide to the Director a statement complying
with the provisions of paragraphs 3 and 4.
3. The statement to be provided to the Director under paragraph
2 shall:
(a) be signed by 2 Directors of the licensee;
(b) describe the arrangements made or to be made by the
licensee to meet the generation security standard in each of
the 7 succeeding financial years;
(c) state the planning margin or margins adopted by the
licensee for the purpose of the above arrangements and set
out the methodology and calculations used in arriving at
such margin or margins;
(d) refer to data, assumptions and demand forecasts
(including insofar as relevant those relating to diversity
of demand, own generation, arrangements for trading energy
and capacity with other persons, arrangements with relevant
purchasers, including those permitting interruption and
reduction of supply, forecast maximum demand from relevant
purchasers, the maximum demand which the licensee could meet
without failing to meet the generation security standard,
contracted availability of generation, and load management
(if any) of relevant purchasers); and
(e) include such other matters as the Director shall
specify in directions issued by the Director to the licensee
for the purpose of this Condition not later than 6 months
before the end of the financial year in which the statement
is provided.
4. The licensee shall upon request by the Director provide to
the Director such information as the Director may require for the
purpose of monitoring compliance with this Condition and to
enable the Director (having regard to his statutory duties) to
review the operation of the generation security standard.
5. The licensee shall not make or agree any alteration other
than an alteration to which paragraph 7 applied, to the
arrangements described in any statement provided to the Director
under paragraph 2 as having been made by the licensee to meet the
generation security standard for the first financial year covered
by such statement.
6. The licensee shall:
(a) procure that, except to the extent that the Director
shall otherwise approve, arrangements described in any
statement provided to the Director under paragraph 2 as
failing to be made by the licensee to meet the generation
security standard for the first financial year covered by
such statement shall be made; and
(b) not make or agree any alteration, other than an
alteration to which paragraph 7 applied, to the arrangements
so made.
7. This paragraph applied to an alteration which the Director
considers is unlikely to result in the licensee failing to meet
the generation security standard.
8. The licensee shall not enter into any contract for the
supply of electricity if the entering into of the contract would
cause demand from relevant purchasers in the first year covered
by the statement most recently provided to the Director under
paragraph 2 to exceed the maximum demand which the licensee can
meet in that year without failing to meet the generation security
standard, as referred to in such statement, unless the Director
shall consider that the entering into of the contract is unlikely
to result in the licensee failing to meet the generation security
standard.
9. In the event that the Director, after consultation with the
licensee, shall at any time or from time to time issue a
direction to the licensee for the purpose of this Condition to
the effect that, in the opinion of the Director, it is desirable
that the licensee make arrangements such as are specified in the
direction to meet the generation security standard, then the duty
imposed by paragraph 1 shall not be capable of being discharged
by the licensee after such date as shall be specified for the
purpose in the direction except by the licensee making the
arrangements so specified.
10. The duty of the licensee under paragraph 1 may, in relation
to relevant purchasers whose premise are located in isolated
areas, be discharged by the making of arrangements sufficient to
meet a standard of generation security (other than the generation
security standard) agree between the licensee and the Director.
11. The provisions of this Condition are without prejudice to
the duties of the licensee under the Electricity Supply
Regulations 1988.
12. In this Condition:
"generation security standard:" means:
(a) such standard of generation security as will ensure:
(i) that the supply of electricity to relevant purchasers will
not be discontinued in more than 9 years in any period of 100
years; and
(ii) that the voltage or frequency of electricity supplied to
relevant purchasers will not be reduced below usual operational
limits in more than 30 years in any period of 100 years
by reason of insufficiency of electricity generation available
for the purposes of supply by the licensee to its relevant
purchasers at the times of annual system peak demand; and
(b) sufficient electricity generation being available for the
purposes of supply by the licensee to its relevant purchasers at
times other than times of annual system peak demand to ensure
that the standard of generation security at each such time will
be not less than that referred to in sub-paragraph (a) above for
times of annual system peak demand.
"relevant purchaser" means any purchaser from the licensee
entitled and requiring at any time to be supplied by the licensee
at any premises but shall exclude:
(a) a purchaser under an interruptible contract or a contract
containing load management terms to the extend that supplies to
that purchaser may be interrupted or reduced in accordance with
he terms of that contract; and
(b) a purchaser whose premises are within an authorised area
for which the licensee is the public electricity supplier.
"contract" includes an agreement or arrangement (whether or not
constituted or evidenced by any written document).
"contract for the supply of electricity" Includes any contract
which amends another contract so as to provide for the licensee
to supply quantities of electricity in excess of that supplied
under the last mentioned contract.
Condition 9: Security arrangements
1. If so directed in directions issued by the Director for the
purposes of this Condition the licensee shall, not later than
such date as it shall be directed so to do in the directions,
enter into an agreement designed by the Secretary of State for
the purposes of this Condition relating to compliance with
directions issued by the Secretary of State under Section 34
and/or Section 35 of the Act.
2. The licensee shall comply with and perform its obligations
under any agreement which it enters into pursuant to paragraph 1.
Condition 10: Health and safety of employees
It shall be the duty of the licensee to act together with other
licensees to consult with appropriate representatives of the
employees for the purpose of establishing and maintaining an
appropriate machinery or forum for the joint consideration of
matters of mutual concern in respect of the health and safety of
persons employed by those licensees.
Condition 11: Provision of information to the Director
1. Subject to paragraphs 2 and 3, the licensee shall furnish to
the Director, in such manner and at such times as the Director
may require, such information and shall procure and furnish to
him such reports, as the Director may consider necessary in the
light of the Conditions or as he may require for the purpose of
performing:
(a) the functions assigned to him by or under the Act; and
(b) any functions transferred to him under the Act.
2. The licensee may not be required by the Director to furnish
him under this Condition with information for the purpose of the
exercise of his functions under Section 48 of the Act.
3. The licensee may not be required by the Director to furnish
him under this Condition with any information required in
relation to an enforcement matter which the licensee could not be
compelled to produce or give under Section 28 (3) of the Act.
4. The powers of the Director to call for information under
paragraph 1 are in addition to the power of the Director to call
for information under or pursuant to any other Condition.
5. In paragraphs 1 to 4, "information" shall include any
documents, accounts, estimates, returns or reports (whether or
not prepared specifically at the request of the Director) of any
description specified by the Director.
6. The licensee shall, if so requested by the Director, give
reasoned comments on the accuracy and text of any information and
advice (so far as relating to the supply of electricity
authorised by this licence) which the Director proposes to
publish pursuant to Section 48 of the Act.
Condition 12: Payment of fees
1. The licensee shall, at the times stated hereunder, pay to
the Director fees of the amount specified in, or determined
under, the following paragraphs of this Condition.
2. Within 30 days after the grant of this licence but, in any
event before 2 May 1991 the licensee shall pay to the Director a
fee which is aggregate of the following amounts:
(a) an amount which is a proportion, as determined by the
Director of the amount estimated by the Director, according
to a method which has previously been disclosed in writing
to the licensee, as likely to be his costs during the coming
year in the exercise of his general functions under the Act
in relation to the holders of licences granted under Section
6(1) and 6(2) of the Act;
(b) an amount which is a proportion as determined by the
Director (in consultation with the Monopolies Commission) as
having been incurred in the calendar year immediately
preceding the 1st April in question by the Monopolies
Commission in connection with references made to it under
Section 12 of the Act with respect to this licence or any
other licence issued under Section 6(2) of the Act; and
(c) the difference (being a positive or a negative amount),
if any, between:
(i) the amount of the fee paid by the licensee in
respect of the year immediately preceding the lst April
in question; and
(ii) the amount which that fee would have been in
respect of that year had the amount comprised therein
under sub-paragraph (a) above (or, where that year
commenced on 1 April 1991 the amount comprised therein
which was attributable to the matters referred to in
that sub-paragraph) been calculated by reference to the
total costs of the Director and the proportion thereof
actually attributable to the licensee (such total costs
being apportioned as determined by the Director
according to a method previously disclosed in writing
to the licensee)
and the fee shall be paid by the licensee to the Director
within one month of the Director giving notice to the
licensee of its amount if that notice is given within 6
months of the beginning of the year in respect of which the
fee is payable.
Condition 13: Compulsory acquisition of land etc.
1. All the powers and rights conferred by or under the
provisions of Schedule 3 of the Act (compulsory acquisition of
land etc.) shall have effect in relation to the licensee to the
extent that they are required for the installation, maintenance,
removal or replacement of the licensee's system or any part
thereof which are necessary to enable the licensee to supply
electricity to the premises specified in Schedule 1 or this
licence.
2. Paragraph 1. shall cease to have effect on 31 March 1994.
Condition 14: Powers to carry out road works etc.
1. For the purposes of enabling the licensee to carry on the
authorised activities, the powers and rights conferred by or
under the provisions of Schedule 4 to the Act (powers to carry
out street work etc.) shall have effect and may, subject to
paragraph 2 below, be exercised by carrying out works in relation
to, or in pursuance of, the installation, inspection,
maintenance, adjustment, repair, alteration, replacement and
removal of:
(a) electric lines which are necessary to enable the
licensee to supply electricity to premises specified in
Schedule 1 below;
(b) electrical plant associated with such lines; and
(c) any structures for housing or covering such lines or
plant.
2. Works which are under, over, in, on, along or across any
road, which for the purposes of the Roads (Scotland) Act 1984,
constitutes a public road, may be undertaken in pursuance of
paragraph 1 above subject to the following conditions:
(a) that such works shall not be carried out except with
the consent, which shall not unreasonably be withheld, of
the roads authority and in accordance with such reasonable
conditions as may be attached to such consent;
(b) that any question as to whether or not a consent of
roads authority is unreasonably withheld, or as to the
reasonableness of conditions attached to such consent, shall
be determined by a single arbiter to be appointed:
(i) by agreement between the licensee and the roads
authority; or
(ii) in default of such agreement, by the Director on
the application of either party.
3. In this Condition:
"authorised activities" had the meaning given in paragraph 3 of
Condition 4.
4. Paragraph 1. shall cease to have effect on 31 March 1994.
SCHEDULE 1
Specific Premises
All non-domestic premises having a maximum demand over 1 MW in
the authorised areas as at 31 March 1990 of the following public
electricity suppliers:
Scottish Power plc
Scottish Hydro-Electric plc
SCHEDULE 2
Terms as to revocation
1. The Director General may at any time revoke this licence by
not less than 30 days' notice in writing to the licensee:
(a) if the licensee agrees in writing with the Director
that this licence should re revoked;
(b) if any amount payable under Condition 14 is unpaid 30
days after it has become due and remains unpaid for a period
of 14 days after the Director has given the licensee notice
that the payment is overdue. Provided that no such notice
shall be given earlier than the sixteenth day after the day
on which the amount payable became due;
(c) if the licensee fails to comply with a final order
(within the meaning of Section 25 of the Act) or with a
provisional order (within the meaning of that Section) which
has been confirmed under that Section and which (in either
case) has been made in respect of a contravention or
apprehended contravention of any of the Conditions or of any
relevant requirement (within the meaning of that Section)
imposed on the licensee in its capacity as holder of this
licence and (in either case) such failure is not rectified
to the satisfaction of the Director within 3 months after
the Director has given notice of such failure to the
licensee. Provided that no such notice shall be given by
the Director before the expiration of the period within
which an application under Section 27 or the Act could be
made questioning the validity of the final or provisional
order or before the proceedings relating to any such
application are finally determined;
(d) if the licensee fails to comply with any order made by
the Secretary of State under Section 56, 73, 74 or 89 of the
Fair Trading Act 1973 or under Section 10(2) (a) of the
Competition Act 1980;
(d) if:
(i) none of the premises specified, or of the
description specified, in Schedule 1 shall have been
supplied with electricity by the licensee at any time
during the period of 5 years commencing on the date on
which this licence comes into force; or
(ii) none of the premises specified, or of the
description specified, in Schedule 1 shall have been
supplied with electricity by the licensee at any time
during any period of 5 years;
(f) if the licensee:
(i) is unable to pay its debts (within the meaning of
Section 123(1) or (2) of the Insolvency Act 1986, but
subject to paragraph 2 of this Schedule) of if any
voluntary arrangement is proposed in relation to it
under Section 1 of that Act or if it 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 Director);
(ii) has a receiver (which expression shall include an
administrative receiver within the meaning of Section
251 of the Insolvency Act 1986) of the whole or any
material part of its assets or undertaking appointed;
(iii) has an administration order under Section 3
of the Insolvency Act 1986 made in relation to it;
(iv) passes any resolution for winding-up other than a
resolution previously approved in writing by the
Director; or
(v) becomes subject to an order for winding-up by a
court of competent jurisdiction; or
(g) if the licensee is convicted of having committed an
offense under Section 39 of the Act.
2. (a) For the purposes of paragraph 1(f) (i) of this Schedule
Section 123(1) (a) of the Insolvency Act 1986 shall have
effect as if for "o750" there was substituted "o250,000" or
such higher figure as the Director may from time to time
determine by notice in writing to the licensee.
(b) the licensee shall not be deemed to be unable to pay
its debts for the purposes of paragraph 1(f) (i) of this
Schedule if any such demand as is mentioned in Section
123(1) (a) of the Insolvency Act 1986 is being contested in
good faith by the licensee with recourse to all appropriate
measures and procedures or if any such demand is satisfied
before the expiration of such period as may be stated in any
notice given by the Director under paragraph 1 of the
Schedule.
EXTENSION OF
A SECOND TIER LICENCE TO SUPPLY ELECTRICITY
Whereas on 25 March 1991 the Director General of Electricity
Supply, in accordance with a general authority ("the authority")
given by the Secretary of State under sections 6(1) and (2) of
the Electricity Act 1989 ("the Act") and in exercise of the
powers conferred by section (6)(2)(a), section 6(6), section 7
and section 10 of the Act granted a licence ("the licence") to
Northern Electric plc ("the licensee") (registered in England
under number 2366942) to supply electricity to the premises
specified in Schedule 1 to the licence, subject to the conditions
set out in Part II of the licence and to the terms as to
revocation specified in Schedule 2 to the licence for the period
determinable in accordance with paragraph 3 of Part 1 of the
licence.
The Director General of Electricity Supply, in exercise of the
powers conferred by the authority and by section 6(2)(b) of the
Act hereby extends the premises authorised to be supplied by the
licensee under the licence by the addition to the premises
specified in the Schedule 1 to the licence of the premises
specified in the Schedule hereto with effect from 17 January
1994.
13 January 1994 Dr. Eileen Marshall
authorised on behalf of the
Director General of Electricity Supply
SCHEDULE
Specified Premises
All premises other than those which, during the franchise period,
have a maximum demand at or below the franchise limit in the
authorised areas of the following public electricity supply
companies together with such premises as may, from time to time,
be specified by the Director (with the approval of the Secretary
of State) for the purposes of paragraph 5 of condition 2 of this
licence:
Scottish Power plc
Scottish Hydro-Electric plc
(Words and phrases used or defined in Condition 2 shall have the
same meaning as when used in this schedule).
Schedule
Condition 2 of each licence which as been granted under Section
6(2)(a) of the Act (other than the licence granted to London
Electricity plc) shall be modified by the addition of the
following 2 paragraphs after paragraph 7 -
7A. For the purpose of this Condition occupation of any premises
by an affiliate of a person shall be deemed to be occupation
by that person.
7B. (1) In this paragraph -
"customer B" means the customer for the time being of
the licensee in respect of premises A;
"permitted quantity" means 10 per cent of the quantity
of electricity supplied by the licensee to customer B
in respect of premises A in the relevant year;
"premises A" means a site or building which, if in the
occupation of a single customer, would be capable of
being a single premises; and
"relevant year" means the period of 12 months
commencing on the date upon which the licensee starts
to supply premises A and (if such supply is provided
for a continuous period exceeding 12 months) each
anniversary of that date until such supply shall cease.
(2) Where during a relevant year -
(i) premises A are occupied by more than one person;
(ii) customer B supplies the other person or persons
who are in occupation of premises A or supplies one or
more of such persons who supply the other occupiers;
(iii) each of the persons referred to in
subparagraph (ii) who provides a supply is exempt by or
under an Order under Section 5 of the Act from the
requirement to hold a licence to supply; and
(iv) customer B does not supply an aggregate quantity
of electricity to such other occupiers in any relevant
year which may reasonably be expected to exceed or
actually exceeds the permitted quantity,
the occupation of premises A by the persons other than
customer B shall be deemed to be occupation by customer B.
(3) The licensee shall, at the request of the public
electricity supplier in those authorised area premises A are
situated, provided not more than once in any period of 3
months in a relevant year, evidence to the supplier that the
licensee reasonably believes that the aggregate quantity of
electricity expected to be supplied by customer B during the
relevant year will not exceed the permitted quantity
including, where at the date of such request any such supply
has been provided during the relevant year, evidence as to
the quantity so supplied.
(4) Where customer B has supplied a quantity of electricity
to such other occupiers which in aggregate exceeds the
permitted quantity, the licensee shall pay to the public
electricity supplier in whose authorised area premises A are
situated a sum calculated by multiplying the number of units
by which the actual supply to such other occupiers exceeds
the permitted quantity by 5 per cent of the standard tariff
price per unit charged by that public electricity suppliers
for customers of the type of types of such other occupiers
(but excluding any standing charge or other charge not fixed
solely by reference to the number of units consumed) or in
the absence of agreement as to the appropriate tariff such
rate as may be determined by the Director at the request of
the licensee or the public electricity supplier.
(5) For the purposes of this paragraph there shall be
disregarded -
(i) the quantity of electricity supplied by customer B
to an occupier of premises A who has a relevant demand
above the franchise limit;
(ii) the quantity of electricity supplied to customer B
equal to the quantity supplied by customer B in
accordance with subparagraph (1); and
(iii) the occupation by the occupier (other than
customer B) reference to in subparagraph (i).
(6) To the extent that, disregarding subparagraph (2), the
licensee would have been permitted to provide a supply to
customer B's premises under this Condition, the provisions
of this paragraph shall not apply.
Regulation Manager
Northern Electric plc
Carliol House
Market Street
NEWCASTLE UPON TYNE
NE1 6NE
Dear Sir:
MODIFICATION OF LICENCE
Whereas:
(1) Northern Electric plc ("the licensee") has been
granted a licence ("the licence") under Section
6(2) of the Electricity Act 1989 ("the Act") to
supply electricity to premises in Scotland
specified or of a description specified in the
licence subject to the conditions contained in the
licence;
(2) In accordance with Section 11(2) of the Act the
Director General of Electricity Supply ("the
Director") gave notice of his intention to make
modifications to the conditions in the licence
relating to the compulsory acquisition of land,
etc., and powers to carry out street works, etc.,
by advertising the modifications in the Edinburgh
Gazette and The Scotsman, requiring any objections
or representation to the modifications to be made
to him on or before 23 June 1993;
(3) The Director has considered the representations or
objections which were duly made and not withdrawn;
(4) In accordance with Section 11(4) of the Act the
Director gave notice of his intention to make the
modifications to the Secretary of State and has
not received a direction not to make the
modifications; and
(5) The licensee has given his consent to the
modifications, set out in the Schedule attached
which the Director proposed to the licence.
Now in accordance with the powers contained in Section 11(1)
of the Act and with
SCHEDULE
1. The following shall be inserted in Substitution for the
existing Paragraph 2 of Condition 13:
"Paragraph 1 shall cease to have effect on 31 March 1997 or such
later date as the Director may from time to time direct."
2. The following shall be inserted in Substitution for the
existing Paragraph 4 of Condition 14:
"Paragraph 1 shall cease to have effect on 31 March 1997 or such
later date as the Director may from time to time direct."
SECOND TIER LICENCE TO SUPPLY ELECTRICTY
Northern Electric plc
L/OF/134/2TS
Uncertified copies of this licence are available price 5.20
pounds sterling payment with order from:
Library
Office of Electricty Regulation
Hagely House
Hagley Road
Birmingham
B16 8QG
Cheques and postal orders should be made payable to Office of
Electricty Regulatio
EXTENSION OF
A SECOND TIER LICENCE TO SUPPLY ELECTRICITY
Whereas on 25 March 1991 the Director General of Electricity
Supply, in accordance with a general authority ("the autority")
given by the Secretary of State under sections 6(1) and (2) of
the Electricity Act 1989 ("the Act") and in exercise of the
powers conferred by section (6)(2)(a), section 6(6), section 7
and section 10 of the Act granted a licence ("the licence") to
Northern Electric plc ("the licensee") (registered in England
under number 2366942) to supply electricity to the premises
specified in Schedule 1 to the licence, subject to the conditions
set out in Part II of the licence and to the terms as to
revocation specified in Schedule 2 to the licence for the period
determinable in accordance with paragraph 3 of Part 1 of the
licence.
The Director General of Electricity Supply, in exercise of the
powers conferred by the authority and by section 6(2)(b) of the
Act hereby extends the premises authorised to be supplied by the
licensee under the licence by the addition to the premises
specified in the Schedule 1 to the licence of the premises
specified in the Schedulehereto with effect from 17 January 1994.
13 January 1994 Dr. Eileen Marshall
authorised on behalf of the
Director General of Electricity Suppl
SECOND-TIER LICENCE TO SUPPLY ELECTRICITY
for
Northern Electric plc
NOTE: The licenceholder is subject to the environmental
obligations set out in Scedule 9 (Preservation of Amenity and
Fisheries) of the Electricty Act 1989
TABLE OF CONTENST
PART I TERMS OF THE LICENCE
PART II THE CONDITIONS
1. Interpretation.
2. Restriction on supply to certain premises.
3. Connection and use of system - requirement to offer terms.
3A. Connection and use of system - functions of the Director.
4. Compliance with the Grid Code.
5. Compliance with Distribution Codes.
6. Pooling and Settlement Agreement.
7. Licensee's system planning.
8. Generation security standard.
9. Security arragements.
10. Health and safety of employees.
11. Provision of information to the Director.
12. Payment of fees.
13. Compulsory acquisition of land etc
14. Powers to carry out road works etc
SCHEDULE 1: Specififed premises
SCHEDULE 2: Terms as to revocation
SECOND-TIER LICENCE TO SUPPLY ELECTRICITY
PART I: TERMS OF THE LICENSE
1. The Director General of Electricity Supply in accordance
with a general authority given by the Secretary of State
under Sections 6(1) and (2) of the Electricity Act 1989
(hereinafter referred to as "the Act") and the exercise of
the powers conferred by Section 6(2)(a), Section 6(6), and
Section 7 of the Act hereby licenses Northern Electric Plc
(registered in England under number 2366942) to supply
electricity to the premises specified in Schedule 1 below
during the period specified in paragraph 3 below, subject to
the Conditions set out in Part II below (hereinafter
referred to as the "Conditions").
2. The Conditions are subject to modification or amendment in
accordance with their terms or with Sections 11, 14, or 15
of the Act. The licence is further subject to the terms as
to revocation specified in Schedule 2.
3. This licence shall come into force on 1 April 1991 and
unless revoked in accordance with the provisions of Schedule
2 shall continue until determined by not less than 25 years'
notice in writing given by the Director General of
Electricity Supply to the Licensee, such notice not to be
served earlier than a date being 10 years after the licence
comes into force.
Dr. Eileen Marshall
authorised on behalf of the
25 March 1991 Director General of Electricity Supply
PART II: THE CONDITIONS
Condition 1: Interpretation
1. Unless the contrary intention appears, words and expressions
used in the Conditions shall be construed as if they were in an
Act of Parliament and the Interpretation Act 1978 applied to them
and references to an enactment shall include any statutory
modification or reenactment thereof after the date when this
licence comes into force.
2. Any word or expression defined for the purposes of any
provision of Part I of the Act shall, unless the contrary
intention appears, have the same meaning when used in the
Conditions.
3. In the Conditions unless otherwise the context otherwise
requires:
"affiliate" in relation to the licensee or any person means any
holding company or subsidiary of the licensee or such person or
any subsidiary of a holding company of the licensee or 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 section is not in force at the
date of grant of this licence as if such section were in force at
such date.
"authorised" in relation to any business or activity means
authorised by licence granted under Section 6 or exemption
granted under Section 5 of the Act.
"authorised electricity operator" means any person (other than
the licensee) who is authorised to generate, transmit or supply
electricity and for the purposes of Conditions 3 and 3A shall
include any person who has made application to be so authorised
which application has no been refused and any person transferring
electricity to or from England and Wales across any
interconnector or who has made application for use of
interconnector which has not been refused.
"connection and use of system agreement" means an agreement under
which the licensee agrees to provide to any person a connection
or connections or a modification to an existing connection to the
licensee's system and/or to any authorised electricity operator,
use of system to transport electricity on such system, as more
fully described in Condition 3.
"designated" in relation to any agreement or arrangement or code
or proposal therefor means designated by the Secretary of State
or on his behalf by such means as he may consider appropriate
whether for the purposes of any Condition of this licence or
otherwise, but so that an agreement or arrangement or code or
proposal therefor so designated may at the discretion of the
Secretary of State cease to be designated if amended or modified
in any material respect.
"Distribution Code" means in relation to any public electricity
supplier the Distribution Code required to be drawn up by such
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 any authorised
electricity operator and used for the distribution of electricity
from grid supply points or generation sets or other entry points
to the point of delivery to customers, and includes any remote
transmission assets operated by such authorised electricity
operator and any electrical plant and meters owned or operated by
the authorised electricity operator in connection with the
distribution of electricity, but shall not include any part of
the transmission system.
"equivalent megawatt" in circumstances where demand is only
measured in megavolt amperes means megavolt amperes converted
into megawatts using for this purpose a power factor of 0.9
megawatts per megavolt ampere or such other factor as may with
the approval of the Director be taken as being appropriate having
regard to electrical characteristics of the supply, and cognate
expressions shall be construed accordingly.
"Fuel Security Code means the document of that title designated
as such by the Secretary of State as from time to time amended.
"generation set" means any plant or apparatus for the production
of electricity and shall where appropriate include a generating
station comprising more than one generation set.
"Grid Code" means the Grid Code required to be drawn up by the
Transmission Company and approved by the Director as from time to
time revised with the approval of the Director.
"grid supply point" means any point where electricity is
delivered to the licensee's system or to the distribution system
of any authorised electricity operator from the transmission
system.
"interconnectors" means the electric lines and electrical plant
and meters owned or operated by the Transmission Company solely
for the transfer of electricity to or from the transmission
system into or out of England and Wales.
"licensee" means Northern Electric plc (registered in England
under number 2366942) and (where the context so requires) shall
include any business in respect of which the licensee is the
successor company.
"licensee's system" means the electric lines owned or operated by
the licensee for the transport of electricity from generation
sets or grid or bulk supply points to the point of delivery to
customers, and includes any electrical plant and meters
associated therewith.
"megawatt" or "MW" includes an equivalent megawatt.
"Pooling and Settlement Agreement" means the agreement of that
title approved (or to be approved) by the Secretary of State or
by the Director as from time to time amended with the approval of
the Director (where so required pursuant to its terms) and shall
where the context permits include the Initial Settlement
Agreement approved (or to be approved) by the Secretary of State
(as from time to time amended with the consent of the Secretary
of State).
"related undertaking: in relation to the licensee or any person
means any undertaking in which the licensee or such person has a
participating interest as defined by Section 260 of the Companies
Act 1985 as substituted by Section 22 of the Companies Act 1989
and if that section is not in force at the date of grant of this
licence as if such section were in force at such date.
"remote transmission assets: means any electric lines, electrical
plant or meters owned by the Transmission Company which (a) are
embedded in the licensee's system or in the distribution system
of any authorised electricity operator other than the
Transmission Company and are not directly connected by lines or
plant owned by the Transmission Company to a sub-station owned by
the Transmission Company and (b) are by agreement between the
Transmission Company and the licensee or such authorised
electricity operator operated under the direction and control of
the licensee or such authorised electricity operator.
"Retail Price Index" means the general index of retail prices
published by the Department of Employment each month in respect
of all items or:
(a) if 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, such index for such month or months as the Director may
after consultation with the licensee determine to be appropriate
in the circumstances; or
(b) if there is a material change in the basis of the index,
such other index as the Director may after consultation with the
licensee determine to be appropriate in the circumstances.
"Transmission Company" means The National Grid Company plc or any
other holder for the time being of a licence to transmit
electricity in England and Wales under Section 6(1)(b) or the
Act.
"transmission system" means the system consisting (wholly or
mainly) of high voltage electric lines owned or operated by the
Transmission Company and used for the transmission of electricity
from one generating station to a sub-station or to another
generating station or between sub-stations or to any
interconnector, and includes any electrical plant and meters
owned or operated by the Transmission Company in connection with
the transmission of electricity but shall not include any remote
transmission assets.
"undertaking" bears the meaning ascribed to that expression by
Section 259 of the Companies Act 1985 as substituted by Section
22 of the Companies Act 1989 and if that section is not in force
at the date of grant of this licence as if such section were in
force at such date.
4. Any reference to a numbered Condition (with or without a
suffix letter) or Schedule is a reference to the Condition (with
or without a suffix letter) or Schedule bearing that number in
this licence, and any reference to a numbered paragraph (with or
without a suffix letter) is a reference to the paragraph (with or
without a suffix letter) bearing that number in the Condition or
Schedule in which the reference occurs.
5. In construing the Conditions, the heading or title of any
Condition or paragraph shall be disregarded.
6. Where, in the Conditions, any obligation of the licenses is
required to be performed within a specified time limit that
obligation shall be deemed to continue after that time limit if
the licensee fails to comply with that obligation within that
time limit.
7. The provisions of Section 109 of the Act shall apply for the
purposes of the delivery or service of any documents, directions
or notices to be delivered or served pursuant to any Condition,
and directions issued by the Director pursuant to any Condition
shall be delivered or served as aforesaid.
Condition 2: Restriction on supply to certain premises
1. Save as provided in paragraphs 3 and 5 below the licensee
shall not during the franchise period supply electricity to any
single premises at which the relevant demand in megawatts is at
or below the franchise limit.
2. In determining for the purposes of this Condition whether
any single premises falls within the franchise limit the licensee
shall have regard to the following bases of assessment:
(a) in respect of premises occupied by existing customers
the relevant demand in megawatts shall be calculated as an
average of the maximum monthly demands under normal
operating conditions at such single premises supplied by one
or more authorized electricity operators and/or the licensee
in the three months of highest maximum demand as recorded
over the most recent twelve-month period in respect of which
figures are available; and
(b) in respect of premises occupied by a new customer
seeking a supply from the licensee the relevant demand in
megawatts shall be calculated by reference to the average
maximum monthly demand which might reasonably be expected in
the three months of highest maximum demand over a twelve-
month period at premises having similar demand
characteristics to the premises occupied by such new
customer.
2A. For the purposes of paragraph 2, if any electricity which
has been or is to be supplied by the licensee to any single
premises ("premises A") is or will be on-supplied by another
person from premises A to one or more single premises ("premises
B") then:
(a) if the on-supply to premises B from premises A was made
on 31 March 1990 by that other person pursuant to an
agreement for that other person to supply premises B which
was subsisting on that date that demand at premises B which
is met by such on-supply from premises A may be regarded as
part of the relevant demand in megawatts at premises A; and
(b) save as provided in sub-paragraph (a) above, that
demand at premises B which is met by such on-supply from
premises A shall not be regarded as part of the relevant
demand in megawatts at premises A.
3. Subject to paragraph 4, if at any time during the franchise
period the relevant demand in megawatts (calculated in accordance
with paragraph 2 and 2A above) at any single premises to which a
supply is given by the licensee in accordance with the provisions
of this Condition should fall to or below the franchise limit the
license may, notwithstanding such fact, continue to supply such
premises without being in breach of this Condition until such
time as:
(a) any contract existing between the licensee and the
customer occupying such premises is determined by effluxion
of time or otherwise; or
(b) the supply arrangements between the licensee and the
customer occupying such premises shall for any other reason
be terminated.
4. Save where the Director otherwise agrees, if (having regard
to the basis of assessment referred to in paragraph 2(b) above)
the relevant demand in megawatts of a customer who was a new
customer at the time of commencement of supply by the licensee
should, in the first twelve-month period for which figures are
available, prove to be less than was reasonably expected of such
customer and to fall to or below the franchise limit, the
licensee shall cease to supply such customer.
5. Not withstanding paragraph 1, the licensee may supply
electricity to single premises at which the relevant demand in
megawatts is at or below the franchise limit where such single
premises are specified for the purposes of this licence by the
Director with the prior approval of the Secretary of State.
6. For the purposes of paragraph 2(a), where the average
calculated as there provided, but ignoring for this purpose the
reference to normal operating conditions, was no more than 10 per
cent higher than the average (calculated in the same manner) over
the twelve-month period preceding the twelve-month period
referred to in paragraph 2(a), the maximum monthly demands from
which the average was derived shall be presumed to have occurred
under normal operating conditions.
7. Any dispute arising under the provisions of this Condition
between the licensee and any authorised electricity operator or
any person requiring a supply of electricity from the licensee
may be referred to the Director and the Director shall determine
whether the premises in respect of which the customer requires a
supply to be given fall within the franchise limit.
8. In this Condition:
"existing customer" means any person occupying premises to which
a supply is being given by the licensee or any other authorised
electricity operator, which person (or any affiliate or related
undertaking of such person) and premises have been supplied for a
clear period of at least 12 months prior to the date on which
application for supply by the licensee is made.
"franchise limit" means:
(a) during the four year period from 31st March 1990 to 30th
March 1994 one megawatt; and
(b) during the succeeding four year period from 31st March 1994
to 30th March 1998 0.1 megawatt.
"franchise period" means the period of eight years commencing on
31st March 1990.
"new customer" means any person supplied or applying for a supply
to premises other than an existing customer.
"single premises" includes in the case of sites or buildings in
multi-occupation, each area in respect of which the supply of
electricity was as at 31st December 1989 or is or is to be
separately metered and the occupier individually invoiced by the
licensee or any authorised electricity operator.
Condition 3: Connection and use of system - requirement to
offer terms
1. The licensee shall, subject to paragraphs 6, 7 and 11 below,
offer to enter into an agreement with any authorised electricity
operator who has made application for use of system:
(a) to accept into the licensee's system at such entry
point and in such quantities as may be specified in the
application, electricity to be provided by or for the
authorised electricity operator;
(b) to deliver electricity equal in quantity to that
accepted into the licensee's system (less only any
distribution losses) from such exit points on that system
and in such quantities as may be specified in the
application to such person as the authorised electricity
operator may specify.
(c) containing terms in accordance with paragraphs 3 or 4
below and such other terms and conditions as may be
appropriate for the purposes of the agreement in the
circumstances in which it is likely to be made.
2. The licensee shall, subject to paragraphs 6 and 7 below,
offer terms for a connection and use of system agreement in
accordance with paragraph 1 above as soon as practicable and in
any event not more than the period specified in paragraph 8 below
after receipt by the licensee of an application from the
authorised electricity operator containing all such information
as the licensee may reasonably require for the purpose of
formulating the terms of his offer.
3. The licensee's offer made in accordance with paragraph 1
shall make detailed provision regarding:
(a) the carrying out of works (if any) required for the
construction or modification of the entry point to connect
the licensee's system to the transmission system or to any
distribution system or in connection with the construction
or modification of any exit points for the delivery of the
electricity to be distributed as specified in the agreement,
and for the obtaining of any consents necessary for such
purpose;
(b) the carrying out of works (if any) for the provision of
electrical plant or for the extension or reinforcement of
the licensee's system which are required, in the opinion of
the licensee, to be undertaken for the provision of use of
the system to the authorised electricity operator and for
the obtaining of any consents necessary for such purpose;
(c) the installation of appropriate meters or other
apparatus (if any) required to enable the licensee to
measure electricity being accepted into the licensee's
system at the specified entry point and leaving such system
at the specified exit points;
(d) the installation of such switchgear or other apparatus
(if any) as may be required for interrupting the use of
system should there be a failure by or for an authorised
electricity operator to provide electricity at its entry
point on the licensee's system for delivery to the person
specified by the authorised electricity operator from the
exit points on such ;
(e) the date by which any works required so as to permit
access to the licensee's system (including for this purpose
any works to extend or reinforce them) shall be completed
(time being of essence unless otherwise agreed by the
authorised electricity operator); and
(f) the charges to be paid by the authorised electricity
operator for the provision of electrical plant, for
connections to or modification of connections to, or the
extension or reinforcement of, the licensee's system and for
use of system shall, unless manifestly inappropriate, be set
in conformity with paragraph 4 below.
4. The charges referred to in paragraph 3 to be contained in
every agreement the subject of an offer by the licensee shall be
such that:
(a) charges for the provision of electrical plant,
connection charges, charges for modification of connections
or any charges for extension or reinforcement of the
licensee's system or for use of system are set at a level
which will enable the licensee to recover no more than:
(i) the appropriate proportion (taking account of the
factors referred to in paragraph 5) of the costs
directly or indirectly incurred by the licensee; and
(ii) a reasonable rate of return on the capital
represented by such costs; and
(b) charges for the installation of meters, switchgear or
other apparatus and for their maintenance shall not exceed
the costs thereof and a reasonable rate of return on the
capital represented by such costs.
5. For the purpose of determining an appropriate proportion of
the costs directly or indirectly incurred in carrying out works,
the licensee shall have regard to:
(a) the benefit (if any) to be obtained or likely in the
future to be obtained by the licensee or any other
authorised electricity operator as a result of the carrying
out of such works whether by virtue of the provision of
electrical plant, the reinforcement or extension of the
licensee's system or the provision of additional entry or
exit points on such system or otherwise; and
(b) the ability or likely future ability of the licensee to
recoup a proportion of such costs from other authorised
electricity operators or other persons.
6. The licensee shall not be obliged pursuant to this Condition
to offer to enter into any agreement with an authorised
electricity operator to make connections or to provide use of
system where, by reason of the capacity of the licensee's system
and the use made or reasonably expected to be made of it, the
licensee would be required to expand or reinforce the capacity of
the licensee's system.
7. The licensee shall not be obliged pursuant to this Condition
to offer to enter into any agreement with an authorised
electricity operator if::
(a) to do so would be likely to involve the licensee:
(i) in breach of the Grid Code;
(ii) in breach of the Distribution Code;
(iii) in breach of the Electricity Supply
Regulations 1988 or any regulations made under Section
29 of the Act; or
(iv) in breach of any other enactment relating to
safety or standards applicable to the licensee's
system; or
(b) the person making the application does not undertake to
be bound, insofar as applicable, by the terms of the
Distribution Code or the Grid Code from time to time in
force; or
(c) the person making the application ceases to be an
authorised electricity operator.
8. For the purpose of paragraph 2, the period specified shall
be:
(a) in the case of persons seeking use of system only, 28
days; and
(b) in the case of persons seeking connection, modification
of an existing connection or use of system in conjunction
with connection, three months.
9. The preceding paragraphs of this Condition shall apply
mutatis mutandis in the case of any person (not being an
authorised electricity operator) who wishes to be connected at an
exit point on the licensee's system.
10. The licensee shall within 28 days following receipt of a
request from any person, give or send to such person such
information in the possession of the licensee as may be
reasonably required by such person for the purpose of completing
paragraph 8 of Part 1 and paragraphs 2(v) and (vi) of Part 2 of
Schedule 2 to the Electricity (Application for Licences and
Extensions of Licences) Regulations 1990 or such provisions to
like effect contained in any further regulations then in force
made pursuant to Sections 6(3),60 and 64(1) of the Act.
11. Paragraphs 1 to 10 inclusive above shall apply only if, and
to the extent that, the Director so directs and the licensee
shall comply with any such direction.
Condition 3A: Connection and use of system - functions of the
Director
1. If, after a period which appears to the Director to be
reasonable for the purpose, the licensee has failed to enter into
an agreement with an authorised electricity operator (or in the
case of connection at any exit point, any person) entitled or
claiming to be entitled thereto pursuant to an application in
accordance with Condition 3, the Director may, pursuant to
Section 7(3)(c) of the Act, on the application of such authorised
electricity operator or person or the licensee, settle any terms
of the agreement in dispute between the licensee and the
authorised electricity operator or person in such manner as
appears to the Director to be reasonable having (insofar as
relevant) regard, in particular, to the following considerations:
(a) that the authorised electricity operator or person
should pay to the licensee the whole or an appropriate
proportion (as determined in accordance with paragraph 5 of
Condition 3) of the costs directly or indirectly incurred by
the licensee in the carrying out of any works or in
providing or doing any other thing under the agreement in
question together with a reasonable rate of return on the
capital represented by such costs calculated in accordance
with the principles set out in paragraph 4 of Condition 3;
(b) that the performance by the licensee of its obligations
under the agreement should not cause it to be in breach of
any other Conditions of this license;
(c) that any methods by which the licensee's system is
connected to the transmission system or to any distribution
system accords with good engineering principles and
practices; and
(d) that the terms and conditions of agreements entered
into by the licensee pursuant to an application in
accordance with Condition 3 should be, so far as
circumstances allow, as similar in substance and form as is
practicable.
2. If the authorized electricity operator or person (as the
case may be) wishes to proceed on the basis of the agreement as
settled by the Director, the licensee shall forthwith enter into
and implement such agreement in accordance with its terms.
Condition 4: Compliance with the Grid Codes
1. The licensee shall comply with the provisions of the Grid
Code in so far as applicable to it.
2. The Director may (following consultation with the
Transmission Company) issue directions relieving the licensee of
its obligation under paragraph 1 in respect of such parts of the
Grid Code and to such extent as may be specified in those
directions.
Condition 5: Compliance with Distribution Codes
1. The licensee shall comply with the provisions of the
Distribution Code of any public electricity supplier in so far as
applicable to it.
2. The Director may (following consultation with any public
electricity supplier directly affected thereby) issue directions
relieving the licensee of its obligation under paragraph 1 in
respect of such parts of the Distribution Code of any public
electricity supplier and to such extent as may be specified in
those directions.
Condition 6: Pooling and Settlement Agreement
1. The licensee shall be party to and, within 3 months after
the date on which this licence comes into force (or such longer
period as may be specified by the Director in directions issued
for the purposes of this Condition), shall become a pool member
under and shall in either case comply with the provisions of, the
Pooling and Settlement Agreement insofar as the same shall apply
to it in its capacity as a private electricity supplier.
2. Paragraph 1 shall not apply for so long as the aggregate
amounts to be supplied by the licensee and any affiliate or
related undertaking of the licensee and any affiliate or related
undertaking of the licenses in its or their capacity as a public
or private electricity supplier do not exceed 500 kW.
Condition 7: Licensee's system planning
1. The licensee shall plan and develop the licensee's system in
accordance with a standard not less than that set out in
Engineering Recommendation P. 2/5 (October 1978 revision) of the
Electricity Council Chief Engineers' Conference in so far as
applicable to it or such other standard of planning as the
licensee may, following consultation with the Transmission
Company and any authorised electricity operator liable to be
materially affected thereby and with the approval of the
Director, adopt from time to time.
2. The Director may (following consultation with the licensee
and, where appropriate, with the Transmission Company and any
authorised electricity operator liable to be materially affected
thereby) issue directions relieving the licensee of its
obligation under paragraph 1 in respect of such parts of the
licensee's system and to such extent as may be specified in the
directions
Condition 8: Generation security standard
1. The licensee shall make arrangements sufficient to meet the
generation security standard.
2. The duty imposed by paragraph 1 shall be discharged either
by the licensee's complying with the provisions of paragraph 3
below or by the making by the licensee of such other arrangements
as may have been previously approved in writing for the purpose
by the Director.
3. The licensee may discharge the duty imposed by paragraph 1
by:
(a) for so long as the relevant condition is met,
purchasing as a pool member under the terms of the Pooling
and Settlement Agreement quantities of electricity which are
at all times sufficient to meet the demands of all
qualifying customers of the licensee; and
(b) for so long as the relevant condition is met, and save
by reason of planned maintenance undertaken on the
licensee's system or in circumstances of force majeure
affecting either the licensee's system or the quantities of
electricity delivered into that system, not:
(i) making voltage reduction outside statutory limits;
or
(ii) interrupting or reducing supplies to any
qualifying customer otherwise than as instructed
pursuant to the Grid Code by the Transmission Company
or in accordance with any applicable Distribution Code.
4. The relevant condition referred to in paragraph 3 is that
there should at any relevant time be electricity available
to be purchased under the terms of the Pooling and
Settlement Agreement at a price less than the ceiling price.
5. The licensee shall upon request by the Director provide to
the Director such information as the Director may require
for the purpose of monitoring compliance with this Condition
and to enable the Director (having regard to his statutory
duties) to review the operation of the generation security
standard.
6. The provisions of this Condition are without prejudice to
the duties of the licensee under the Electricity Supply
Regulations 1988.
7. In this Condition:
"ceiling price" means such price as would be equal to the Pool
Selling Price in circumstances where the corresponding Pool
Purchase Price was an amount equal to the Value of Lost Load.
"generation security standard" means such standard of generation
security as will ensure that:
(a) the supply of electricity to qualifying customers will not
be discontinued in more than 9 years in any 100 years; and
(b) the voltage or frequency of electricity supplied to
qualifying customers will not be reduced below usual operational
limits in more than 30 years in any 100 years by reason of
insufficiency of electricity generation available for the
purposes of supply by the licensee to its qualifying customers at
times of annual system peak demand.
"Pool Purchase Price" and "Pool Selling Price" shall each have
the meaning from time to time ascribed to them in Schedule 9 to
the Pooling and Settlement Agreement.
""qualifying customer" means any purchaser from the licensee but
shall exclude
(a) a contract purchaser under an interruptible contract or a
contract containing load management terms to the extent that
supplies to that purchaser may be interrupted or reduced in
accordance with the terms of that contract; and
(b) a customer on special tariff terms which restrict supplies
to particular time periods to the extent that supplies to that
customer may be interrupted or reduced in accordance with such
tariff.
"Value of Lost Load" means in respect of the financial year,
ending 31 March 1991 the sum of 2 pounds sterling per kWh, in
respect of each succeeding financial year, the sum which
corresponds to 2 pounds sterling per kWh as adjusted to reflect
the percentage change in the Retail Price Index between the index
published or determined in respect to the December prior to the
start of that financial year and the index published or
determined for December 1989.
Condition 9: Security arrangements
1. The licensee shall comply with the provisions of the Fuel
Security Code and such provisions shall have effect as if they
were set out in this licence.
Condition 10: Health and safety of employees
1. It shall be the duty of the licensees to act together with
other licensees to consult with appropriate representatives of
the employees for the purpose of establishing and maintaining an
appropriate machinery or forum for the joint consideration of
matters of mutual concern in respect of the health and safety of
persons employed by those licensees.
Condition 11: Provision of information to the Director
1. Subject to paragraphs 2 and 3, the licensee shall furnish to
the Director, in such manner and at such times as the Director
may require, such information and shall procure and furnish to
him such reports, as the Director may consider necessary in the
light of the Conditions or as he may require for the purpose of
performing:
(a) the functions assigned to him by or under the Act; and
(b) any functions transferred to him under the Act.
2. The licensee may not be required by the Director to furnish
him under this Condition with information for the purpose of the
exercise of his functions under Section 48 of the Act.
3. The licensee may not be required by the Director to furnish
him under this Condition with any information required in
relation to an enforcement matter which the licensee could not be
compelled to produce or give under Section 28(3) of the Act.
4. The power of the Director to call for information under
paragraph 1 is in addition to the power of the Director to call
for information under or pursuant to any other Conditions.
5. In paragraphs 1 to 4, "information" shall include any
documents, accounts, estimates, returns or reports (whether or
not prepared specifically at the request of the Director) of any
description specified by the Director.
6. The licensee shall, if so requested by the Director, give
reasoned comments on the accuracy and text of any information and
advice (so far as relating to the supply of electricity
authorised by this licence) which the Director proposes to
publish pursuant to Section 48 of the Act.
Condition 12: Payment of fees
1. The licensee shall, at the times stated hereunder, pay to
the Director fees of the amount specified in, or determined
under, the following paragraphs of this Condition.
2. Within 30 days after the grant of this licence but, in any
event, before 2 May 1991 the licensee shall pay to the Director
an initial fee of 250 pounds sterling.
3. In respect of the year beginning on 1st April 1992 and in
each subsequent year, the licensee shall pay to the Director a
fee which is the aggregate of the following amounts:
(a) an amount which is a proportion as determined by the
Director of the amount estimated by the Director, according
to a method which has previously been disclosed in writing
to the licensee, as likely to be his costs during the coming
year in the exercise of his general functions under the Act
in relation to the holders of licences granted under Section
6(1) and 6(2) of the Act;
(b) an amount which is a proportion as determined by the
Director of the amount estimated by the Director (in
consultation with the Monopolies Commission) as having been
incurred in the calendar year immediately preceding the lst
April in question by the Monopolies Commission in connection
with references made to it under Section 12 of the Act with
respect to this licence or any other license issued under
Section 6(2) of the Act; and
(c) the difference (being a positive or a negative amount),
if any, between:
(i) the amount of the fee paid by the licensee in
respect of the year immediately preceding the 1st April
in question; and
(ii) the amount which that fee would have been in
respect of that year had the amount comprised therein
under sub-paragraph (a) above (or, where that period
commenced on 1 April 1991 the amount attributable to
the maters referred to in that sub-paragraph) been
calculated by reference to the total costs of the
Director and the proportion thereof actually
attributable to the licensee (such total costs being
apportioned as determined by the Director according to
a method previously disclosed in writing to the
licensee)
and the fee shall be paid by the licensee to the
Director within one month of the Director giving notice
to the licensee of its amount if that notice is given
within six months of the beginning of the year in
respect of which the fee is payable.
Condition 13: Compulsory acquisition of land etc.
1. All the powers and rights conferred by or under the
provisions of Schedule 3 of the Act (compulsory acquisition of
land etc.) shall have effect in relation to the licensee to the
extent that they are required for the installation, maintenance,
removal or replacement of the licensee's system or any part
thereof which are necessary to enable the licensee to supply
electricity to the premises specified in Schedule 1 of this
licence.
2. Paragraph 1 shall cease to have effect on 31 March 1994.
Condition 14: Powers to carry out street works etc.
1. The powers and rights conferred by or under the provisions
of Schedule 4 to the Act (powers to carry out street works etc.)
shall have effect and may, subject to paragraph 2 below, be
exercised by carrying out works in relation to, or in pursuance
of, the installation, inspection, maintenance, adjustment,
repair, alteration, replacement and removal of:
(a) electric lines which are necessary to enable the
licensee to supply electricity to premises specified in
Schedule 1 below;
(b) electrical plant associated with such lines; and
(c) any structures for housing or covering such lines or
plant.
2. Works which are under, over, in, on, along or across any
street, which for the purposes of the Highways Act 1980
constitutes a highway or part of a highway maintainable at the
public expense, may be undertaken in pursuance of paragraph 1
above subject to the following conditions:
(a) that such works shall not be carried out except with
the consent, which shall not unreasonably be withheld, of
the highway authority and in accordance with such reasonable
conditions as may be attached to such consent;
(b) that any question as to whether or not a consent of
highway authority is unreasonably withheld, or as to the
reasonableness of conditions attached to such consent, shall
be determined by a single arbiter to be appointed:
(i) by agreement between the licensee and the highway
authority; or
(ii) in default of such agreement, by the Director on
the application of either party.
3. Paragraph 1 shall cease to have effect on 31 March 1994.
SCHEDULE 1
Specified premises
All non-domestic premises having a maximum demand over 1MW in the
authorised areas as at 31 March 1990 of the following public
electricity suppliers:
East Midlands Electricity plc
Eastern Electricity plc
London Electricity plc
MANWEB plc
Midlands Electricity plc
NORWEB plc
SEEBOARD plc
Southern Electric plc
South Wales Electricity plc
South Western Electricity plc
Yorkshire Electricity Group plc
SCHEDULE 2
Terms as to revocation
1. The Director may at any time revoke this licence by not less
than 30 days' notice in writing to the licensee:
(a) if the licensee agrees in writing with the Director
that this licence should be revoked;
(b) if any amount payable under Condition 12 is unpaid 30
days after it has become due and remains unpaid for a period
of 14 days after the Director has given the licensee notice
that the payment is overdue. Provided that no such notice
shall be given earlier than the sixteenth day after the day
on which the amount payable became due;
(c) if the licensee fails to comply with a final order
(within the meaning of Section 25 of the Act) or with a
provisional order (within the meaning of that section) which
has been confirmed under that section and (in either case)
such failure is not rectified to the satisfaction of the
Director within three months after the Director has given
notice of such failure to the licensee. Provided that no
such notice shall be given by the Director before the
expiration of the period within which an application under
Section 27 of the Act could be made questioning the validity
of the final or provisional order or before the proceedings
relating to any such application are finally determined;
(d) if the licensee fails to comply with any order made by
the Secretary of State under Section 56, 73, 74 or 89 of the
Fair Trading Act 1973 or under Section 10(2)(a) of the
Competition Act 1980;
(e) if the licensee:
(i) has not within 5 years after the date of this
licence commenced the supply of electricity to any of
the premises specified in Schedule 1 above; or
(ii) has ceased to supply electricity to all those
premises for a period of 5 years;
(f) if the licensee:
(i) is unable to pay its debts (within the meaning of
Section 123(1) or (2) of the Insolvency Act 1986, but
subject to paragraph 2 of this Schedule) or has any
voluntary arrangement 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 Director);
(ii) has a receiver (which expression shall include an
administrative receiver within the meaning of Section
251 of the Insolvency Act 1986) of the whole or any
material part of its assets or undertaking appointed;
(iii) has an administration order under Section 8
of the Insolvency Act 1986 made in relation to it;
(iv) passes any resolution for winding-up other than a
resolution previously approved in writing by the
Director; or
(v) becomes subject to an order for winding-up by a
court of competent jurisdiction; or
(g) if the licensee is convicted of having committed an
offence under Section 59 of the Act in making its
application for this license.
2. (a) For the purposes of paragraph 1(f)(i) of this Schedule
Section 123(1)(a) of the Insolvency Act 1986 shall have
effect as if for "750 pounds sterling" there was substituted
"250,000 pounds sterling" or such higher figure as the
Director may from time to time determine by notice in
writing to the licensee.
(b) The licensee shall not be deemed to be unable to pay
its debts for the purposes of paragraph 1(f)(i) of this
Schedule if any such demand as is mentioned in Section
123(1)(a) of the Insolvency Act 1986 is being contested in
good faith by the licensee with recourse to all appropriate
measures and procedures or if any such demand is satisfied
before the expiration of such period as may be stated in any
notice given by the Director under paragraph 1 of the
Schedule.
3. The provisions of Section 109 of the Act shall apply for the
purposes of the service of any notice under this Schedule.
DATED 30TH MARCH, 1990-
THE GENERATORS
named herein
and
THE SUPPLIERS
named herein
and
ENERGY SETTLEMENTS AND INFORMATION SERVICES LIMITED
as Settlement System Administrator
and
POOL FUNDS ADMINISTRATION LIMITED
as Pool Funds Administrator
and
THE NATIONAL GRID COMPANY plc
as Grid Operator and Ancillary Services Provider
and
SCOTTISH POWER plc
and
ELECTRICITE DE FRANCE, SERVICE NATIONAL
as Externally Interconnected Parties
and
THE OTHER PARTIES
named herein
POOLING AND SETTLEMENT AGREEMENT
for the Electricity Industry in England and Wales
(as amended at 17th October, 1996)
Main Text Schedules 1-8 and 10-22
Contents
PART I: PRELIMINARY
1 Definitions and Interpretation
2 The Effective Date
3 Additional Parties
PART II: OBJECTS, REVIEW AND PRIORITY
4 Objects and Purpose of the Agreement
5 Transitional Arrangements and Reviews
6 Entrenched Provisions, Inconsistencies and Conflicts
PART III: POOL MEMBERSHIP AND GENERAL MEETINGS
7 Introduction
8 Pool Membership
9 General Meetings
10 Proceedings at General Meetings
11 Voting
12 Proxies
13 Matters reserved to the General Meeting: Class Rights
PART IV: THE EXECUTIVE COMMITTEE
14 Establishment of the Executive Committee
15 Membership of the Executive Committee
16 Pool Chairman
17 Chief Executive, Secretariat and Secretary
18 Proceedings of the Executive Committee
19 Conduct of Executive Committee Meetings
20 Delegation
21 Vacation of Office by Committee Members
22 Voting
23 Committee Members' Responsibilities and Protections
24 Powers of the Executive Committee
PART V: LIMITATION OF LIABILITY
25 Limitation of Liability
PART VI: THE SETTLEMENT SYSTEM ADMINISTRATOR
26 Appointment
27 Not Used
28 Not Used
PART VII: THE SETTLEMENT SYSTEM ADMINISTRATOR'S RESPONSIBILITIES
29 Responsibilities
30 Not Used
31 Not Used
32 Not Used
33 Not Used
34 Costs, Fees and Expenses
34A Second Tier System Charges
PART VIII: THE SETTLEMENT SYSTEM AND COMPUTER OPERATIONS
35 Development of the Settlement System
36 Change Management
37 Software
38 Not Used
39 Not Used
40 Not Used
41 Notification of Defects by Pool Members
42 Not Used
43 Not Used
44 Not Used
45 Escrow Arrangements
46 Not Used
PART IX: THE POOL AUDITOR AND SCHEDULING AND DESPATCH REVIEWS
47 The Pool Auditor and Scheduling and Despatch Reviews
48 Audit Instructions
PART X: THE GRID OPERATOR'S RESPONSIBILITIES
49 Responsibilities
50 Standard of Care
PART XI: ANCILLARY SERVICES AND THE ANCILLARY SERVICES PROVIDER
51 Ancillary Services
51A Transmission Services
51B Transmission Services Scheme 2
PART XII: SETTLEMENT RE-RUNS
52 Settlement Re-runs
PARTY XIII: RISK MANAGEMENT SCHEME
53 Application
54 Scheme Admission Conditions
55 Rights and Obligations of Pool Members
56 Review
PART XIV: FUEL SECURITY
57 Definitions
58 Payment Instructions
59 Record Keeping and Payments
PART XV: METERING
60 Metering
PARTY XVI: POOL CIVIL EMERGENCIES
61 Pool Civil Emergencies
PART XVII: TRADING SITE
62 Trading Site
PART XVIII: THE POOL FUNDS ADMINISTRATOR, BILLING AND SETTLEMENT
63 The Pool Funds Administrator
64 Procedures Manual
65 Billing and Settlement
PART XIX: DEFAULT, TERM AND TERMINATION
66 Default
67 Term and Termination
PARTY XX: CONFIDENTIALITY
68 Definitions and interpretation
69 Confidentiality for NGC and its Subsidiaries
70 Confidentiality other than for NGC and its Subsidiaries
71 Release of Information
PART XXI: THE PARTICIPATION OF NGC
72 The Participation of NGC
73 Not Used
PART XXII: MISCELLANEOUS
74 Force Majeure
75 Notices
76 Assignment
77 Counterparts
78 Waivers; Remedies Not cumulative
79 Severance of Terms
80 Entire Agreement
81 Language
82 Restrictive Trade Practices Act 1976
83 Arbitration
84 Jurisdiction
85 Governing Law
SCHEDULES
1 The Founder Generators
2 The Founder Suppliers
Part A: Public Electricity Suppliers
Part B: Second Tier Suppliers
Part C: Others
3 Form of Accession Agreement
4 Terms of Engagement of the Settlement System
5 Form of Admission Application
6 Form of Pool Membership Application
7 Form of Escrow Agreement
8 Not Used
9 The Pool Rules [See separate document]
Preamble
Part I: Definitions and Interpretation
Part II: Data Input to Settlement
Part III: Computation of Payments in Settlement
Part IV: Interconnectors
Part V: Special Provisions
Part VI: Settlement Funds
Appendix 1: Part I: Definitions
Part II: List of Acronyms
Appendix 2: Procedures for running GOAL
Appendix 3: Transmission Services Scheme
Appendix 4: Reporting Requirements
Appendix 5: Variables established by reference to PORTHOLE
Appendix 6: Procedures for the Aggregation of Metered Data
Appendix 7: Short-Term Modifications
Appendix 8: Uplift Management Incentive Scheme 2
10 Form of Resignation Notice
11 Billing and Settlement
Part 1: Preliminary
Part 2: Establishment of Systems
Part 3: Security Cover and Credit Monitoring
Part 4: Billing and Payment Procedures
Annex 1: Form of Advice Note
Annex 2: Form of Confirmation Notice
Annex 3: Part 1: Form of Settlement Account esignation
Part 2: Form of Change of Settlement Account
Annex 4: Form of Letter of Credit
12 Transitional Arrangements
13 Contributory Shares
14 Membership of the Executive Committee: Public Electricity
Suppliers and Independent Suppliers
15 The Pool Funds Administrator's Contract
Annex 1: PFA Budget for the 1992 PFA Accounting Period
Annex 2: Pro-Forma Statement of Charges
Annex 3: Pro-Forma Statement of Costs and Fees
Annex 4: Existing Funds Transfer Software
Part A: Beneficially Owned
Part B: Licensed
Annex 5: Escrow Arrangements
16 Matters requiring consent of the Settlement System Administrator
17 Trading Sites
Part A: General
Part B: Procedures
Part C: Trading Site Applications
Part D: Additional Provisions
18 The Ancillary Services Accounting Procedure
Annex: Part 1: ASP Budget for the First Accounting Period
Part 2: Pro-forma Statement of Costs
Part 3: Pro-forma Statement of Charges
19 Objective and Scope of the Scheduling and Despatch Review
20 Accountable Interest
21 Meter Operator Schedule
22 1998 Programme Funding and Cost Recovery
THIS AGREEMENT is made on 30th March, 1990
BETWEEN:
(1) THE PERSONS whose names, registered numbers and registered
or principal offices are set out in Part I of Schedule 1;
(2) THE PERSONS whose names, registered numbers and registered
or principal offices are set out in Part II of Schedule 1;
(3) ENERGY SETTLEMENTS AND INFORMATION SERVICES LIMITED
(registered number 2444282) whose registered office is situate at
Fairham House, Green Lane, Clifton, Nottingham NG11 9LN as
Settlement System Administrator;
(4) ENERGY POOL FUNDS ADMINISTRATION LIMITED (registered number
2444187) whose registered office is situate at 185 Park Street,
London SE1 9DY as Pool Funds Administrator;
(5) THE NATIONAL GRID COMPANY plc (registered number 2366977
whose registered office is situate at National Grid House, Kirby
Corner Road, Coventry CV4 8JY as Grid Operator and Ancillary
Services Provider;
(6) SCOTTISH POWER plc (registered number 117120) whose
principal office is situate at 1 Atlantic Quay, Glasgow G2 8SP,
Scotland as an Externally Interconnected Party;
(7) ELECTRICITE DE FRANCE, SERVICE NATIONAL whose principal
office is situate at 3 Rue de Messine, 75008 Paris, France as an
Externally Interconnected Party; and
(8) THE OTHER PARTIES whose names, registered numbers and
registered or principals offices are set out in Schedule 2.
WHEREAS:
(A) it is a Condition of the NGC Transmission Licence that,
subject to its removal or resignation as Settlement System
Administrator hereunder, NGC shall implement, maintain and
operate a settlement system which will provide inter alia for the
calculation of any payments which become due to or owing by
Authorised Electricity Operators in respect of sales and
purchases of electricity under the terms of this Agreement and
such Licence further provides that NGC may comply with its said
obligations by participation in this Agreement in the manner
provided in such Licence;
(B) it is a Condition of the Generation Licence granted to each
of the Founder Generators in England and Wales requiring such a
Licence that the licensee shall be a party to and a pool member
under, and shall comply with the provisions of, this Agreement
insofar as the same shall apply to it in its capacity as a party
to this Agreement and/or as a pool member being a generator of
electricity as the case may be;
(C) it is a Condition of the PES Licence granted to each of the
Founder Suppliers whose names are set out in Part A of Part II of
Schedule 1 that the licensee shall be a pool member under, and
comply with the provisions of, this Agreement;
(D) it is a Condition of the Second Tier Supply Licence granted
to each of the Founder Suppliers whose names are set out in Part
B of Part II of Schedule 1 that the licensee shall be a pool
member under, and comply with the provisions of, this Agreement
insofar as the same shall apply to it in its capacity as a
private electricity supplier (as that expression is defined in
section 17(1) of the Act);
(E) this Agreement sets out, inter alia, the rules and
procedures for the operation of an electricity trading pool and
for the operation of a settlement system (including the
calculation of payments due) and in compliance with the
conditions of their respective Licences those parties subject to
such conditions have agreed to become parties hereto with the
intent that this Agreement shall be and shall remain approved by
the Director;
(F) in relation to this Agreement each of the Secretary of State
and the Director enjoys the rights, powers and authorities
conferred upon him inter alia by the Act and the Licences; and
(G) without prejudice to the ability of Parties to agree in the
future to the terms of an incentive scheme, the Parties
acknowledge that the Transmission Services Scheme 2 is part of
the long term objective of the Parties that the Grid Operator is
provided with an incentive to reduce the cost of certain charges
made to Suppliers which arise as a result of the purchase of
electricity under the terms of this Agreement. The Transmission
Services Scheme 2 is a replacement of the Transmission Services
Schemes, which previously applied.
NOW IT IS HEREBY AGREED as set out on the following pages of this
Agreement.
PART I
PRELIMINARY
1 DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Agreement (including the Recitals and
the Schedules), except where the context otherwise requires:
"Accession Agreement" means an accession agreement in or
substantially in the form set out in Schedule 3 or in such other
form (to which the Settlement System Administrator has no
reasonable objection) as the Executive Committee may for the time
being and from time to time approve;
"Accountable Interest" has the meaning given to that term in
Schedule 20;
"Accounting Date" means, in relation to any Accounting
Period, the last day of such Accounting Period;
"Accounting Period" means each successive period of 12
months beginning on 1st April in each year or of such other
length and/or beginning on such other date as may be determined
in accordance with the terms hereof, provided that the first such
period shall begin on and include 31st March, 1990 and shall end
on and include 31st March, 1991;
"Act" means the Electricity Act 1989;
"Active Energy" means the electrical energy produced,
flowing or supplied by an electric circuit during a time
interval, and being the integral with respect to time of the
instantaneous power, measured in units of watt-hours or standard
multiples thereof, that is:
1000Wh = 1kWh
1000kWh = 1MWh
1000Mwh = 1GWh
1000GWh = 1TWh;
"Active Power" means the product of voltage and the in-phase
component of alternating current measured in units of watts and
standard multiples thereof, that is:
1000 Watts = 1kW
1000kW = 1MW
1000MW = 1GW
1000GW = 1TW
"Admission Application" means an application in or
substantially in the form set out in Schedule 5 or in such other
form as the Executive Committee may for the time being and from
time to time approve;
"Agreed Procedure" means each of the agreed procedures
specified in the Agreed Procedures Index and which is agreed to
be treated as an Agreed Procedure for the purposes of this
Agreement either:
(a) by the Executive Committee and the Settlement System
Administrator and (where the agreed procedure imposes obligations
on the Grid Operator) the Grid Operator; or
(b) where such agreed procedure concerns the duties and
responsibilities of the Pool Funds Administrator, by the
Executive Committee and the Pool Funds Administrator
as the same
(i) may be amended or substituted from time to time by the
Executive Committee with the prior written consent of the
Settlement System Administrator and (where such Agreed Procedure
imposes obligations on the Grid Operator) the Grid Operator (in
each case, such consent not to be unreasonably withheld or
delayed); or
(ii) shall be amended or substituted from time to time by the
Executive Committee at the request of the Settlement System
Administrator and with the prior written consent of the Executive
Committee and (where such Agreed Procedure imposes obligations on
the Grid Operator) the Grid Operator (in each case, such consent
not to be unreasonably withheld or delayed),
Provided that the reference to the Grid Operator in this
definition shall be construed as if it were a reference to such
term prior to the creation of Meter Operator Parties and the
associated amendments to this Agreement, but this shall be
without limitation to any right to agree any adoption, amendment
or substitution under this definition;
"Agreed Procedures Index" means an index of agreed
procedures agreed to be treated as Agreed Procedures in
accordance with and for the purposes of this Agreement;
"Agreement" means this Agreement (including the Schedules),
as amended, varied, supplemented, modified or suspended from time
to time in accordance with the terms hereof;
"Ancillary Service" means a System Ancillary Service and/or
a Commercial Ancillary Service, as the case may be;
"Ancillary Services Agreement" means an agreement between a
User and the Ancillary Services Provider for the payment by the
Ancillary Services Provider to that User in respect of the
provision by such User of Ancillary Services;
"Ancillary Services Business" means the business relating to
Ancillary Services carried on by the Ancillary Services Provider;
"Ancillary Services Provider" means the person who for the
time being and from time to time is required by the terms of a
Transmission Licence to contract for Ancillary Services;
"Apparatus" means all equipment in which electrical
conductors are used or supported or of which they may form a
part;
"Approved Recommendation" has the meaning given to that term
in Clause 5.8;
"ASP Accounting Procedure" means the accounting procedure
set out in Schedule 18, as amended, varied or substituted from
time to time in accordance with the terms hereof;
"Authorised Electricity Operator" means any person who is
authorised under the Act to generate, transmit or supply
electricity and shall include an person transferring electricity
to or from England and Wales across an interconnector (as such
term is used in the NGC Transmission Licence), other than the
Grid Operator in its capacity as operator of the NGC Transmission
System;
"Banking System" has the meaning given to that term in
Section 1.1 of Schedule 11;
"Billing System" has the meaning given to that term in
Section 1.1 of Schedule 11
"BPS Goal" has the meaning given to that term in Appendix 2
to Schedule 9;
"British Grid Systems Agreement" means the agreement of that
name made or to be made between NGC, Scottish Hydro-Electric PLC
and Scottish Power plc inter alia regulating the relationship
between their respective grid systems;
"Bulk Supply Point" means any or (as the context may
require) a particular point of supply where Metering Equipment
for the purposes of the Bulk Supply Tariff is or would have been
located and, in the event any dispute as to location, as
determined in accordance with Clause 83;
"Central Despatch" means the process of Scheduling and
issuing direct instructions by the Grid Operator referred to in
paragraph 1 of Condition 7 of the NGC Transmission Licence and
"Centrally Despatched" shall be construed accordingly;
"Change Management Policies" means the policies, procedures
and guidelines for the co-ordination by the Settlement System
Administrator of the implementation of changes to the Settlement
System entitled respectively "Change Management Policy",
"Settlement Change Co-ordinator Operating Procedures" and "Change
Management Implementation Guidelines" in the form initialled for
the purposes of identification as at 29th November, 1991 by or on
behalf of the Executive Committee and the Settlement System
Administrator, as the same have been or may be amended from time
to time in accordance with the terms of the Initial Settlement
Agreement or this Agreement;
"Charging Procedure" means the charging procedure set out in
the Appendix to Schedule 4, as amended, varied or substituted
from time to time in accordance with the terms hereof;
"Chief Executive" has the meaning given to that term in
Clause 17.1.1;
"Chief Executive's Office" means the Chief Executive, the
Contract Manager and the personnel referred to in Clause 17.2.1;
"Code of Practice" means each of the codes of practice in
relation to any Metering Equipment or any part or class thereof
which are specified in the Synopsis of Metering Codes, as the
same may be amended or substituted from time to time by the
Executive Committee with the agreement or approval of:
(i) in the case of any Code of Practice in respect of Metering
Equipment in respect of which it is the Operator, the Grid
Operator;
(ii) in the case of any Code of Practice in respect of Metering
Equipment relating to Reactive Energy, the Ancillary Services
Provider; and
(iii) in the case of any change to any Code of Practice prior
to 1st April, 1998 in respect of standards of accuracy of
Metering Equipment required for Second Tier Customers up to ( and
including) 100kW or Non-Pooled Generators, the Suppliers in
separate general meeting;
(provided that, prior to the date on which the transitional
arrangements regarding metering of Reactive Power at Grid Supply
Points are brought into effect ("RP Date") in the case of a Code
of Practice or part thereof which relates to Reactive Power
metering at the Grid Energy Points, such Code or part thereof may
only be amended or substituted by agreement between the Ancillary
Services Provider and all Committee Members), and any other code
of practice which is agreed from time to time to be treated as a
Code of Practice for the purposes of this Agreement by the
Executive Committee (or, where appropriate, prior to the RP Date
all Committee Members) and, where appropriate, the Grid Operator
and/or the Ancillary Services Provider and/or the Suppliers;
"Commercial Ancillary Services" means Ancillary Services,
other than System Ancillary Services, utilised by the Grid
Operator in operating the Total System if a User has agreed to
provide them under a Supplemental Agreement with payment being
dealt with under an Ancillary Services Agreement or, in the case
of Externally Interconnected Parties or External Pool Members,
under any other agreement;
"Commissioned" means (i) in relation to any Plant or
Apparatus connected to the NGC Transmission System or to any
External Interconnection or any Distribution System, commissioned
for the purposes of the Connection Agreement relating to such
Plant or Apparatus; or (ii) in relation to any Metering System
or Metering Equipment, commissioned in accordance with the
relevant Code of Practice;
"Committee Member" means a member of the Executive
Committee;
"Communications Equipment" means, at or relating to any
Site, in respect of any Metering Equipment (i) the terminating
equipment (which may include a modem) necessary to convert data
from such Metering Equipment into a state for transmission to the
Settlement System Administrator; and (ii) in the case of Sites
which are not 1993/1994 Tariff Qualifying Sites (as defined in
the Tariff which is entitled Tariff for 1993/1994 Sites) the
exchange link which is dedicated to that terminating equipment,
but (iii) it shall not include an Outstation;
"Competent Authority" means the Secretary of State, the
Director and any local or national agency, authority, department,
inspectorate, minister, ministry, official or public or statutory
person (whether autonomous or not) of, or of the government of,
the United Kingdom or the European Community;
"Computer Systems" means all and any computer systems used
by the Settlement System Administrator and required in connection
with the operation of the Settlement System;
"Connection Agreements" means the Master Connection and Use
of System Agreement, the Supplemental Agreements, the Supplier's
Connection Agreements, the Supplier's Use of System Agreements
and the Interconnection Agreements, and "Connection Agreement"
means any or (as the context may require) a particular one of
them;
"Connection Point" means a Grid Supply Point or Grid Energy
Point, as the case may be;
"Consumer Metered Demand" has the meaning given to that term
in Part I of Appendix 1 of Schedule 9;
"Contract Management Rules" has the meaning given to that
term in sub-section 1.1 of Schedule 4;
"Contract Manager" has the meaning given to that term in
sub-section 1.1 of Schedule 4;
"Contributory Share" means, in relation to any Pool Member,
the Contributory Share for the time being and from time to time
of such Pool Member calculated in accordance with Schedule 13;
"Control" has the meaning set out in section 840 of the
Income and Corporation Taxes Act 1988 and "Controlled" shall be
construed accordingly;
"Custodian" has the meaning given to that term in Clause
45.1;
"Customer" means a person to whom electrical power is
provided (whether or not he is the provider of such electrical
power);
"De-energisation" means the movement of any isolator,
breaker or switch or the removal of any fuse whereby no
electricity can flow to or from the relevant User System through
the User's Plant or Apparatus connected to such User System and,
in relation to any External Pool Member, the termination of such
External Pool Member's rights to use any relevant External
Interconnection;
"Default Calling Creditor" means any Pool Creditor, the
Settlement System Administrator and the Pool Funds Administrator;
"Default Interest Rate" has the meaning given to that term
in Section 1.1 of Schedule 11;
"Defaulting Pool Member" has the meaning given to that term
in Clause 66.3.1;
"Despatch" means the issue by the Grid Operator of
instructions for Generating Plant and/or Generation Trading
Blocks to achieve specific Active Power (and, in relation to
Generating Plant, Reactive Power or target voltage) levels within
their Generation Scheduling and Despatch Parameters or Generation
Trading Block Scheduling and Despatch Parameters, as the case may
be, and by stated times;
"Development Policies" means the policies, procedures and
practices for the development of the Computer Systems in the
forms initialled for the purposes of identification as at 29th
November, 1991 by or on behalf of the Executive Committee and the
Settlement System Administrator, as the same have been or may be
amended from time to time in accordance with the terms of this
Agreement;
"Directive" includes any present or future directive,
requirement, instruction, direction or rule of any Competent
Authority (but only, if not having the force of law, if
compliance with the Directive is in accordance with the general
practice of persons to whom the Directive is addressed) and
includes any modification, extension or replacement thereof then
in force;
"Director" means the Director General of Electricity Supply
appointed for the time being pursuant to section 1 of the Act;
"Distribution Code" means the Distribution Code required to
be drawn up by each Public Electricity Supplier and approved by
the Director, as from time to time revised with the approval of
the Director;
"Distribution System" means the system consisting (wholly
or mainly) of electric lines owned or operated by a Public
Electricity Supplier and used for the distribution of electricity
from Grid Supply Points or Generating Units or other entry points
to the point of deliver to Customers or other Users and includes
any Remote Transmission Assets (as defined in the Grid Code)
operated by such Public Electricity Supplier and any Plant and
Apparatus and meters owned or operated by such Public Electricity
Supplier in connection with the distribution of electricity, but
does not include any part of the NGC Transmissions System;
"EdF Documents" means any agreement for the time being and
from time to time made between NGC and Electricite de France,
Service National relating to the use or operation of the relevant
External Interconnection;
"Effective Date" means 2400 hours on 30th March, 1990;
"electricity" means Active Energy and Reactive Energy;
"Electricity Arbitration Association" means the
unincorporated member's club of that name formed inter alia to
promote the efficient and economic operation of the procedure for
the resolution of disputes within the electricity supply industry
by means of arbitration or otherwise in accordance with its
arbitration rules;
"Embedded" means having a direct connection to a
Distribution System or the System of any other User to which
Customers and/or Power Stations are connected, such connection
being either a direct connection or a connection via a busbar of
another User of NGC (but with no other connection to the NGC
Transmission System);
"Embedded Non-Franchise Site" means:
(i) a Site which is Embedded and which is at the point of
connection to a Second Tier Customer; or
(ii) a site which is Embedded where the customer to which that
site is at a point of connection is eligible to receive supplies
from a Second Tier Supplier in the period between 1st April, 1994
and 31st March, 1998;
"Equipment Owner" means, in relation to a Metering System,
the person which is the owner of that Metering System;
"Escrow Agreement" has the meaning given to that term in
Clause 45.1;
"ESIS" means Energy Settlement and Information Systems
Limited (registered number 2444282) whose registered office is at
Fairham House, Green Lane, Clifton, Nottingham NG11 9LN;
"Event of Default" means any event declared as such pursuant
to Clause 66.1.1 or 66.2.1, as the case may be;
"Executive Committee" means the committee established
pursuant to Clause 14;
"Export" means, in respect of any Party, a flow of
electricity from the Plant or Apparatus of such Party to the
Plant or Apparatus of another Party and, in relation to any Party
which is an External Pool Member, the External Interconnection in
respect of which that Party has the right to deliver or take
electricity to or from the NGC Transmission System shall be
treated as the Plant or Apparatus of such Party and the verb
"Export" and its respective tenses shall be construed
accordingly;
"External Interconnection" means Apparatus for the
transmission of electricity to or from the NGC Transmission
System into or out of an External System;
"Externally Interconnected Party" means a person operating
an External System which is connected to the NGC Transmission
System by an External Interconnection (which person may or may
not also be an External Pool Member);
"External Pool Member" means a Party supplying electricity
to or taking electricity from the NGC Transmission System through
an External Interconnection and which has been or (where
appropriate) is to be admitted as a Pool Member in the capacity
of a Generator and/or a Supplier;
"External System" means, in relation to an Externally
Interconnected Party, the transmission or distribution system
which it owns or operates and any Apparatus or Plant which
connects that system to the External Interconnection and which is
owned or operated by such Externally Interconnected Party;
"Final Metering Scheme" means a national metering scheme to
be installed in accordance with the relevant Codes of Practice
and to come into effect on the FMS Date;
"First Quarter" means, in respect of any year, the months of
January, February and March;
"FMS Codes of Practice" means the Codes of Practice B, C, E,
J, K1 and K2 and, to the extent that they relate to Metering
Equipment the data derived from which was not used as Settlement
Metering Data immediately prior to the FMS Date, F and G, and
Codes of Practice 1, 2, 3, 4 and 5;
"FMS Date" means 1st April, 1993;
"FMS Metering Equipment" means Metering Equipment comprising
a Metering System at or in relation to the commercial boundary in
accordance with paragraph 7.1.2 of Schedule 21 in relation to the
requirements to be met from the FMS Date;
"FMS Trading Date" means 10th January, 1994;
"Following Quarter" means, in respect of any Quarter Day or
Quarter, the period of three months immediately following such
Quarter Day or Quarter;
"Force Majeure" means, in relation to any Party, any event
or circumstance which is beyond the reasonable control of such
Party and which results in or causes the failure of that Party to
perform any of its obligations under this Agreement including act
of God, strike, lockout or other industrial disturbance, act of
the public enemy, war declared or undeclared, threat of war,
terrorist act, blockade, revolution, riot, insurrection, civil
commotion, public demonstration, sabotage, act of vandalism,
lightning, fire, storm, flood, earthquake, accumulation of snow
or ice, lack of water arising from weather or environmental
problems, explosion, fault or failure of Plant and Apparatus
(which could not have been prevented by Good Industry Practice),
governmental restraint, Act of Parliament, other legislation,
bye-law and Directive (not being any order, regulation or
direction under section 32, 33, 34 or 35 of the Act) provided
that lack of funds shall not be interpreted as a cause beyond the
reasonable control of that Party. For the avoidance of doubt,
Force Majeure shall not apply in respect of the Settlement System
Administrator where and to the extent that the Settlement System
Administrator can perform its obligations under this Agreement
by using the back-up arrangements required by Service Line 6
(Off-Site Security) or by acting in accordance with Clause 52 or
Section 31 of Schedule 9;
"Founder Generators" means the parties to this Agreement of
the first part at 30th March, 1990;
"Founder Suppliers" means the parties to this Agreement of
the second part at 30th March, 1990;
"Fourth Quarter" means, in respect of any year, the months
of October, November and December;
"Fuel Security Code" means the document of that title
designated as such by the Secretary of State, as from time to
time amended;
"Funds Transfer Agreement" has the meaning given to that
term in Section 1.1 of Schedule 11;
"Funds Transfer Business" has the meaning given to that term
in Section 1.1 of Schedule 11;
"Funds Transfer Hardware" has the meaning given to that term
in Section 1.1 of Schedule 15;
"Funds Transfer Software" has the meaning given to that term
in Section 1.1 of Schedule 15;
"Funds Transfer System" has the meaning given to that term
in Section 1.1 of Schedule 11;
"the Generating Board" has the meaning given to that term in
the Act;
"Generating Plant" means a Power Station subject to Central
Despatch;
"Generating Unit" means any apparatus which produces
electricity and, in respect of an External Pool Member, means a
Generation Trading Block;
"Generation Licence" means a licence granted or to be
granted under section 6(1)(a) of the Act;
"Generation Scheduling and Despatch Parameters" means those
parameters listed in Appendix A1 to SDC1;
"Generation Trading Block" means a notional Centrally
Despatched Generating Unit of an External Pool Member treated as
such for the purposes of the Grid Code;
"Generation Trading Block Scheduling and Despatch
Parameters" means those parameters listed in Appendix A1 to SDC1
relating to Generation Trading Blocks;
"Generator" means:
(i) a person who generates electricity under licence or
exemption under the Act; or
(ii) a person who is an External Pool Member who delivers
electricity or on whose behalf electricity is delivered to the
NGC Transmission System; or
(iii) a person who is acting as the agent for any such person
who is referred to in paragraph (i) or (ii) above,
and, in any such case, for the time being party to this
Agreement, and:
(a) who is a Founder Generator; or
(b) who was admitted as a Party in the capacity of a Generator;
or
(c) who, in accordance with Clause 3.10, has changed
capacity(ies) such that it participates as a Party in the
capacity of a Generator,
and, where the expression is used in Part III or Part IV,
and who is also or (where appropriate) is to become a Pool
Member;
"Generic Dispensation" shall have the meaning ascribed
thereto in paragraph 14.1(b) of Schedule 21;
"Genset Metered Generation" has the meaning given to that
term in Part I of Appendix 1 to Schedule 9;
"Gigawatt" means 1000MW;
"GOALPOST" has the meaning given to that term in the Pool
Rules;
"Good Industry Practice" means, in relation to any
undertaking and any circumstances, the exercise of that degree of
skill, diligence, prudence and foresight which would reasonably
and ordinarily be expected from a skilled and experienced
operator engaged in the same type of undertaking under the same
or similar circumstances;
"Grid Code" means the Grid Code drawn up pursuant to the
Transmission Licence, as from time to time revised in accordance
with the Transmission Licence;
"Grid Code Review Panel" has the meaning given to that term
in the Grid Code;
"Grid Entry Point" means the point at which a Power Station
which is not Embedded connects to the NGC Transmission System;
"Grid Operator" means person who for the time being and from
time to time is required by the terms of a Licence, inter alia,
to implement the Grid Code;
"Grid Supply Point" means the point of supply from the NGC
Transmission System to Public Electricity Suppliers or to other
Users with User Systems with Customers connected to them or Non-
Embedded Customers;
"GW" means Gigawatt;
"GWh" means Gigawatt-hour;
"Hardware" means at any time the computer equipment and
accessories used by the Settlement System Administrator on or in
connection with which the Software functions or is intended to
function at such time (other than Second Tier Hardware) and for
the avoidance of doubt the Hardware at 1st April, 1996 is
specified in version 1.0 of the Contract Management Rules;
"Host PES" means, in respect of a Metering System, either:
(i) the Public Electricity Supplier to whose Distribution System
such Metering System is connected; or
(ii) where such Metering System is connected directly to the NGC
Transmission System, the Public Electricity Supplier whose
Consumer Metered Demand determined in accordance with the Pool
Rules is calculated by the Settlement System Administrator using
data from such Metering System;
"Import" means, in respect of any Party, a flow of
electricity to the Plant or Apparatus of such Party from the
Plant or Apparatus of another Party and, in relation to any Party
which is an External Pool Member, the External Interconnection in
respect of which it has the right to deliver or take electricity
to or from the NGC Transmission System shall be treated as the
Plant or Apparatus of such Party and the verb "Import" and its
respective tenses shall be construed accordingly;
"Independent Generators" means Generators other than:
(i) the Founder Generators;
(ii) any Generator which is an External Pool Member; and
(iii) any Generator which is an affiliate or related
undertaking of (a) any person referred to in paragraph (i) or
(ii) above, (b) any person referred to in paragraph (i) of the
definition of Independent Suppliers, or (c) any Public
Electricity Supplier;
"Independent Suppliers" means Suppliers other than:
(i) Eastern Group plc, East Midlands Electricity plc, London
Electricity plc, Manweb plc, Midlands Electricity plc, Northern
Electric plc, NORWEB plc, SEEBOARD plc, Southern Electric plc,
South Wales Electricity plc, South Western Electricity plc,
Yorkshire Electricity Group plc, National Power PLC, PowerGen,
plc, Nuclear Electric plc, British Nuclear Fuels plc, Electricite
de France, Service National, Scottish Power plc and Scottish
Hydro-Electric PLC;
(ii) Public Electricity Suppliers;
(iii) any Supplier which is an External Pool Member; and
(iv) any Supplier which is an affiliate or related undertaking of
any person referred to in paragraph (i), (ii) or (iii) above;
"Information Systems" has the meaning given to that term in
Section 1.1 of Schedule 11;
"Initial Settlement Agreement" means the agreement of even
date herewith made between the Parties at such date modifying and
suspending the provisions of this Agreement for an initial period
and setting out inter alia the rules and procedures for the
operation of the electricity trading pool referred to in Recital
(E) and for the Operation of a settlement system and the
procedures for the development of the phases and pool rules
during such initial period, as amended, varied, supplemented,
modified or suspended from time to time;
"Interconnection Agreement" means an agreement between NGC
and an Externally Interconnected Party and/or an External Pool
Member relating to an External Interconnection and/or an
agreement under which an External Pool Member can use an External
Interconnection;
"kVAr" means kilovoltamperes reactive;
"kW" means kilowatt;
"kWh" means kilowatt-hour;
"Licences" means all Generation Licences, PES Licences,
Second Tier Supply Licences and Transmission Licences and
"Licence" means any or (as the context may require) a particular
one of them;
"lost opportunity costs" means, in relation to any
Generator, the profit foregone by such Generator in respect of a
Generating Unit during a period when it is out of service for the
purposes of maintenance, repair, modification, renewal or
replacement needed to comply with a proposal made by such
Generator to restore the Generating Unit's Reactive Power
capability to that required by the Grid Code or, where relevant,
the applicable Supplemental Agreement, whichever capability is
lower provided that:
(i) the period when it is taken out of service is:
(a).outside the period identified for the Generating Unit
concerned pursuant to Section OC2 of the Grid Code as at the time
when the failure to have Reactive Power capability was notified
or determined; and
(b) approved by the Grid Operator; and
(ii) the Generator gives credit for any savings in loss of profit
by carrying out other repair work at the same time as that
required for the purposes of Reactive Power;
"Main Site" means those sites specified in paragraphs (i),
(ii) and (v) of the definition of Site;
"Majority Default Calling Creditors" means:
(i) in respect of each calendar quarter other than the first,
any single or group of Default Calling Creditors to whom, in
respect of the aggregate of (a) all Notified Payments payable on
the last five Business Days of the immediately preceding calendar
quarter and (b) all sums due to the Settlement System
Administrator, the Pool Funds Administrator and the Ancillary
Services Provider and outstanding under this Agreement on the
last Business Day of such immediately preceding calendar quarter,
more than 50 per cent of the total amount of all such Notified
Payments and such other sums were due; and
(ii) in respect of the first calendar quarter, all Pool Members
other than the Defaulting Pool Member;
"Master Connection and Use of System Agreement" means the
agreement envisaged in Condition 10B of the NGC Transmission
Licence;
"Meter" means a device for measuring Active Energy and/or
Reactive Energy;
"Meter Operator Party" means each person admitted in the
capacity as such and for the time being and from time to time
party to Schedule 21 in accordance with the provisions thereof,
and shall include any successor(s) in title to, or permitted
assign(s) of, such person;
"Meter Operator Party Accession Agreement" means an
accession agreement in or substantially in the form set out in
Annex 3 to Schedule 21 or in such other form (to which the
Settlement System Administrator has no reasonable objection) as
the Executive Committee may for the time being and from time to
time approve;
"Meter Operator Party Admission Application" means an
application in or substantially in the form set out in Annex 1 to
Schedule 21 or in such other form as the Executive Committee may
for the time being and from time to time approve;
"Meter Operator Party Resignation Notice" means a
resignation notice in or substantially in the form set out in
Annex 2 to Schedule 21 or in such other form as the Executive
Committee may for the time being and from time to time approve;
"Metering Equipment" means Meters, measurement transformers
(voltage, current or combination units), metering protection
equipment including alarms, circuitry, their associated
Communications Equipment and Outstations, and wiring which are
part of the Active Energy and/or Reactive Energy measuring and
transmitting equipment at or relating to a Site;
"Metering System" means all or that part of the Commissioned
Metering Equipment at or relating to a Site linked to a single
Outstation at or relating to that Site and includes, for the
avoidance of doubt, such Outstation. Without prejudice to the
generality of the foregoing, a set of non-exhaustive diagrammatic
representations of Metering Systems is contained in Annex 5 to
Schedule 21;
"MVAr" means megavar;
"MVArh" means megavar-hours;
"MW" means megawatt;
"Mwh" means megawatt-hours;
"NGC" means the National Grid Company plc (registered number
2366977) whose registered office is situate at National Grid
House, Kirby Corner Road, Coventry CV4 8JY;
"NGC Site" means a site owned (or occupied pursuant to a
lease, licence or other agreement) by NGC at which there is a
Connection Point and, for the avoidance of doubt, a site owned by
a User but occupied by NGC as aforesaid is an NGC Site;
"NGC Transmission Licence" means the Transmission Licence
granted or to be granted to NGC;
"NGC Transmission System" means the system consisting
(wholly or mainly of high voltage electric lines owned or
operated by NGC and used for the transmission of electricity from
one Power Station to a sub-station or to another Power Station or
between sub-stations or to or from any External Interconnection
and includes any Plant and Apparatus and meters owned or operated
by NGC in connection with the transmission of electricity but
does not include any Remote Transmission Assets (as defined in
the Grid Code);
"Non-Embedded Customer" means any Customer, other than a
PES, receiving electricity direct from the NGC Transmission
System irrespective of from whom it is supplied;
"Non-Pooled Generation" means generation from any site which
is directly connected to the Distribution System of a Public
Electricity Supplier where (i) the output is accounted for in
Settlement and (ii) the Generator owning such site:
"Non-Pooled Generation System" means any Metering System of
a Non-Pooled Generator which has been registered with the
Settlement System Administrator by a Second Tier Supplier and
from which the Settlement System Administrator or any Second Tier
Agent is required to collect, aggregate, adjust or transmit data
for the purposes of taking a supply of electricity;
"Non-Pooled Generator" means a Generator who produces Non-
Pooled Generation, provided that a Generator shall be a Non-
Pooled Generator only to the extent that it owns sites which
produce Non-Pooled Generation;
(a) is exempted from holding a Generation Licence; or
(b) would be exempted from holding a Generation licence if such
site were the only site owned by that Generator;
"Notified Payment" has the meaning given to that term in
Section 1.1 of Schedule 11;
"Operator" means, in relation to any Metering System:
(i) used to measure the supply to a Second Tier Customer or from
a Non-Pooled Generator, the Meter Operator Party who is appointed
as such by the Second Tier Customer, the Non-Pooled Generator or
by the Registrant (with the consent of that Second Tier Customer
or, as the case may be, Non-Pooled Guarantor) and who agrees to
act as Operator in relation to such Metering System; or
(ii) not within (i) above or (iii) to (v) below, the Meter
Operator Party who is appointed by such by the Registrant of such
Metering System and who agrees to act as Operator in relation to
such Metering System; or
(iii) where new metering Equipment is to be added to an
existing Metering System, the Operator of such existing Metering
System; or
(iv) the Meter Operator Party which continues as the Operator in
accordance with the transitional arrangements set out in
paragraph 23 of Schedule 21; or
(v) the Party who is deemed to be the Operator and Meter
Operator Party in respect thereof in accordance with the terms of
Clause 60.4.4;
"Outstation" means equipment which receives and stores data
from a Meter(s) for the purpose, inter alia, of transfer of that
metering data to the Settlement System Administrator and which
may perform some processing before such transfer. This equipment
may be in one or more separate units or may be integral with the
Meter;
"Party" means each person for the time being and from time
to time party to this Agreement acting in a capacity, or deemed
to be acting in a capacity, other than that of Operator or Meter
Operator Party, and shall include any successor(s) in title to,
or permitted assign(s) of, such person;
"Period Metered Demand" has the meaning given to that term
in Part I of Appendix 1 to Schedule 9;
"PES Licence" means a licence granted or to be granted under
section 6(1)(c) of the Act;
"PFA Accounting Procedure" means the procedure for the
recovery of certain moneys set out in Section 20 of Schedule 15;
"Plant" means fixed and moveable items used in the
generation and/or supply and/or transmission of electricity,
other than Apparatus;
"Pool Auditor" means the firm of accountants appointed for
the time being and from time to time pursuant to Clause 47.1;
"Pool Banker" has the meaning given to that term in Section
1.1 of Schedule 11;
"Pool Chairman" has the meaning given to that term in Clause
16.1;
"Pool Creditor" has the meaning given to that term in
Section 1.1 of Schedule 11;
"Pool Funds Administrator" means the person for the time
being and from time to time appointed pursuant to Schedule 15 to
act as Pool Funds Administrator;
"Pool Member" means each of the Founder Generators and
Founder Suppliers and any other person who is admitted to pool
membership in accordance with Clause 8.2, in each case until it
shall have resigned from pool membership or otherwise ceased to
be a member in accordance with this Agreement, and "Pool
Membership" shall be construed accordingly;
"Pool Membership Application" means an application in or
substantially in the form set out in Schedule 6 or in such other
form as the Executive Committee may for the time being and from
time to time approve;
"Pool Rules" means the rules referred to in Clause 7.4 and
set out in Schedule 9, as amended, varied or substituted from
time to time in accordance with the terms hereof;
"PORTHOLE" means the database which allows the transfer of
operations information form the Grid Operator to the Settlement
System Administrator;
"Potential Operator" means a Meter Operator Party which is
appointed as the operator pursuant to an agreement or
arrangement:
(i) in respect of a Metering System or Metering Equipment at a
Site or Sites but which is not yet registered as Operator in
respect of that Metering System; or
(ii) in respect of Metering Equipment where such metering
Equipment has not been registered as comprising a Metering
System;
"Power Station" means an installation comprising one or more
Generating Units (even where sited separately), other than an
External Interconnection, owned and/or controlled by the same
Generator, which may reasonably be considered as being managed as
on Power Station;
"Public Electricity Supplier" or "PES" means a person for
the time being party to this Agreement who is a public
electricity supplier (as that expression is defined in the Act)
and, in relation to Clauses 15.4 and 15.5 and Schedules 14 and
22, means a person for the time being party to this Agreement who
is a public electricity supplier in England and Wales;
"Qualifying Site" means an Embedded Non-Franchise Site
qualifying in accordance with the terms of the relevant Tariff
for payments to be made for the provision of installation and
maintenance services;
"Quarter" means the period of three calendar months ending
on Quarter Day;
"Quarter Day" means 31st March, 30th June, 30th September
and 31st December;
"Reactive Energy" means the integral with respect to time of
the Reactive Power;
"Reactive Power" means the product of voltage and current
and the sine of the phase angle between them measured in units of
voltamperes reactive and standard multiples thereof, that is:
1000var = 1kVAr
1000kVAr = 1MVAr;
"Register" means the register to be maintained by the
Settlement System Administrator pursuant to Clause 60.5;
"Registered Capacity" has the meaning given to that term in
the Grid Code;
"Registrant" means, in relation to a Metering System at or
in relation to any Site which is:
(i) a Grid Entry Point,
the Pool Member which operates Generating Plant at such Site; or
(ii) a Grid Supply point or Bulk Supply Point,
the Pool Member whose System is directly connected to the
NGC Transmission System at or in relation to such Grid Supply
Point or Bulk Supply Point; or
(iii) the point of connection of a Customer of a Supplier and
the NGC Transmission System,
the Supplier which is the supplier to that Customer; or
(iv) the point of connection of a Generator which is Embedded or
of a Second Tier Supplier or of a Second Tier Customer to a
Distribution System,
the Party which is such Generator which is Embedded or such
Second Tier Supplier or the Second Tier Supplier in respect of
such Second Tier Customer, as the case may be; or
(v) the point of connection of a Non-Pooled Generator to a
Distribution System,
the party which is the Supplier or Second Tier Supplier, as
the case may be, in respect of such Metering System of such Non-
Pooled Generator; or
(vi) the point of connection of two or more Distribution Systems;
the Authorised Electricity Operator of one of such
Distribution Systems which is nominated in accordance with the
provisions of this Agreement; or
(vii) the point of connection of an External Interconnection
to the NGC Transmission System or a Distribution System,
the Externally Interconnected Party;
"Resignation Notice" means a resignation notice in or
substantially in the form set out in Schedule 10;
"RP Date" has the meaning given to that term in the
definition of Code of Practice;
"Schedule Day" has the meaning given to that term in Part I
of Appendix 1 to Schedule 9;
"Scheduling" means the process of compiling and issuing a
Generation Schedule (as that expression is defined in the Grid
Code), as set out in SDC1;
"Scheduling and Despatch Code" or "SDC" means that portion
of the Grid Code which is identified as such in the Grid Code;
"Scheme" means the scheme set out in Clause 53 and,
separately, each further scheme implemented pursuant to Clause
56.2;
"Scheme Admission Application" means an application form
setting out the Scheme Admission Conditions and requiring such
information as the Executive Committee may consider necessary to
enable it to consider the application, in such form as the
Executive Committee may from time to time determine;
"Scheme Admission Conditions" means the conditions set out
in Clause 54;
"Scheme Genset" means a Centrally Despatched Generating Unit
which is admitted to a Scheme under Clause 53.3;
"Scheme Planned Availability" or "SPA" has the meaning given
to that term in Clause 55;
"Scheme Year" means, in respect of each Scheme Genset, each
successive period of twelve months, the first such period
commencing on 1st April, 1990;
"Second Quarter" means, in respect of any year, the months
of April, May and June;
"Second Tier Agent" means an agent appointed pursuant to
Clause 60.16.1;
"Second Tier Computer Systems" means all and any computer
systems used by any Second Tier Agent in connection with the
operation of the Second Tier Data Collection System operated by
such Second Tier Agent;
"Second Tier Customer" means a person who is supplied with
or sold electricity by a Second Tier Supplier;
"Second Tier Data Collection System" means those parts of
the Settlement System which relate to the obligations of the
Settlement System Administrator under this Agreement in relation
to collecting, estimating and aggregating data as may be required
for the proper functioning of Settlement from Metering Systems at
the point of connection between the Distribution System of a
Public Electricity Supplier and:
(i) a Second Tier Customer or Non-Pooled Generator;
(ii) the System of an Authorised Electricity Operator other than
the Public Electricity Supplier;
(iii) an Embedded Generator not subject to Central Despatch;
and
(iv) the Distribution System of another Public Electricity
Supplier,
and providing such data to the Settlement System
Administrator;
"Second Tier Hardware" means at any time the computer
equipment and accessories used by any Second Tier Agent on or in
connection with which the Second Tier Software functions or is
intended to function at such time;
"Second Tier Software" means at any time the computer
programs and codes and associated documents and materials which
are used by any Second Tier Agent in connection with the
operation of the Second Tier Data Collection System operated by
such Second Tier Agent;
"Second Tier Supplier" means a person for the time being
party to this Agreement who is the holder of a Second Tier Supply
Licence;
"Second Tier Suppliers' Non-Pooled Generation System Charge"
means the amount determined by the Executive Committee for the
purposes of Clause 34A.3;
"Second Tier Suppliers' System Charge" means the amount
determined by the Executive Committee for the purposes of Clause
34A.1;
"Second Tier Supply Licence" means a licence granted or to
be granted under section 6(2)(a) of the Act;
"Second Tier System" means any Metering System from which
the Settlement System Administrator or any Second Tier Agent is
required to collect, aggregate, adjust or transmit data for the
purposes of a supply pursuant to a Second Tier Supply Licence;
"Secretary" means the person for the time being and from
time to time holding office as secretary of the Executive
Committee;
"Secretary of State" has the meaning given to that term in
the Act;
"Security Cover" has the meaning given to that term in
Section 1.1 of Schedule 11;
"Security Period" has the meaning given to that term in the
Fuel Security Code;
"Service Line" has the meaning given to that term in Section
1.1 of Schedule 4;
"Settlement" means the operation of the Settlement System
under this Agreement;
"Settlement Account" has the meaning given to that term in
Section 1.1 of Schedule 11;
"Settlement Day" has the meaning given to that term in Part
I of Appendix 1 to Schedule 9;
"Settlement GOAL" has the meaning given to that term in
Appendix 2 to Schedule 9;
"Settlement Metering Data" shall mean Metered Data as
defined in, and used in accordance with Section 3 of Schedule 9
and relevant metered data in accordance with Appendix 6 to
Schedule 9 of this Agreement, which is used for the purposes of
Settlement;
"Settlement Period" has the meaning given to that term in
Part I of Appendix 1 to Schedule 9;
"Settlement System" means those assets, systems and
procedures for the calculation in accordance with the Pool Rules
of payments which become due thereunder, as modified from time to
time;
"Settlement System Administrator" means ESIS in its capacity
as Settlement System Administrator or any replacement therefor as
Settlement System Administrator from time to time appointed
pursuant to this Agreement;
"Settlements Business" means the business of the Settlement
System Administrator in operating the Settlement System under
this Agreement;
"Site" means:
(i) a Grid Entry Point;
(ii) a Grid Supply Point or Bulk Supply Point;
(iii) the point of connection of a Generator which is
Embedded or of a Second Tier Supplier or of a Second Tier
Customer to a Distribution System or the NGC Transmission System,
or the point of connection of a Non-Pooled Generator to a
Distribution System;
(iv) the point of connection of two Distribution Systems; or
(v) the point of connection of an External Interconnection to
the NGC Transmission System;
"Small Generator" means any Independent Generator with
Generating Units the aggregate Registered Capacity of which does
not exceed 100MW;
"Software" means at any time all the computer programs,
codes and associated documents and materials which are at such
time used by or on behalf of the Settlement System Administrator
and required in the operation of the Settlement System;
"Specification" means at any time the computer
specification(s) giving effect to the Pool Rules and such other
matters as may be agreed between the Executive Committee and the
Settlement System Administrator at the time;
"SSA Arrangements" means this Agreement, the Service Lines,
the Agreed Procedures and the Codes of Practice;
"SSA System" means all operating systems, compilers and
other software necessary to or used for the operation or testing
of the Hardware and the Settlement System (excluding, for the
avoidance of doubt, Developed Application Software and Licensed
Application Software, each as defined in sub-section 10.1 of
Schedule 4);
"Supplemental Agreement" means any agreement entered or to
be entered into between NGC and any User party to the Master
Connection and Use of System Agreement and expressed to be
supplemental thereto;
"Supplier" means a person for the time being party to this
Agreement:
(i) who is a Founder Supplier; or
(ii) who was admitted as a Party in the capacity of a Supplier;
or
(iii) who, in accordance with Clause 3.10, has changed
capacity(ies) such that it participates as a Party in the
capacity of a Supplier,
and, where the expression is used in Part III, Part IV or
Part XI or Schedule 14 or 18, who is also or (where appropriate)
is to become a Pool Member;
"Supplier's Connection Agreement" means the agreement for
connection to any User System envisaged in Condition 8B of a PES
Licence and Condition 3 of a Second Tier Supply Licence;
"Supplier's System Charge" means the amount determined by
the Executive Committee in accordance with the provisions of
Clause 34A.3;
"Supplier's Use of System Agreement" means the agreement for
use of system envisaged in Condition 8B of a PES Licence and
Condition 3 of a Second Tier Supply Licence;
"Synopsis of Metering Codes" means a synopsis maintained and
updated as necessary by the Executive Committee listing each Code
of Practice approved as such from time to time in accordance with
this Agreement;
"System" means any User System or the NGC Transmission
System, as the case may be;
"System Ancillary Services" means Ancillary Services which
are required for System reasons and which must be provided by
Users (but in some cases only if a User has agreed to provide the
same under a Supplemental Agreement);
"Tariff" for any period of one year in respect of any Site
(which whenever used in this definition shall include all
Qualifying Sites) means the tariff approved by the Director and
published by the Executive Committee on or before that tariff
becomes effective and providing for amounts payable to Tariff
Operators of certain Sites in a class of which that Site is a
member in respect of the provision of installation and
maintenance services in respect of Communications Equipment; and
the "relevant Tariff" in respect of any Site (or Metering
Equipment or Metering System in respect of a Site) shall be the
Tariff which is so expressed by its terms to apply to that class
of Sites to which such Site so belongs;
"Tariff Operator" means a Meter Operator Party which is an
Operator or which is appointed as the operator pursuant to an
agreement or an arrangement in respect of Metering Equipment at a
Qualifying Site;
"Third Quarter" means, in respect of any year, the months of
July, August and September;
"Total Second Tier System Charges" means, in respect of any
Specified Accounting Period (as defined in Clause 34A.1), the
aggregate of the costs, expenses and charges incurred by all
Second Tier Agents in respect of the relevant Specified
Accounting Period and relating to the collection, aggregation,
adjustment and transmission of data from Second Tier Systems and
Non-Pooled Generation Systems or when the collection,
aggregation, adjustment and the transmission of data from Second
Tier Systems and Non-Pooled Generation Systems is performed by
the Settlement System Administration the costs, expenses and
charges directly incurred by the Settlement System Administrator
plus the deficit (if any) or (as the case may be) less the
surplus (if any) in the amount of Total Second Tier System
Charges recovered for the immediately preceding Specified
Accounting Period carried forward in accordance with the
provisions of Clause 34A.5;
"Total System" means the NGC Transmission System and all
User Systems in England and Wales;
"Total Votes" means, in relation to a Pool Member, the
number of votes to which such Pool Member is entitled pursuant to
Clause 11.7;
"Trading Site" shall be determined in accordance with
Schedule 17;
"Transmission Licence" means a licence granted or to be
granted under section 6(1)(b) of the Act, the authorised area of
which is England and Wales or any part of either thereof;
"TW" means terrawatt;
"Twh" means terrawatt-hours;
"undertaking" has the meaning given to that term by section
259 of the Companies Act 1985 as substituted by section 22 of the
Companies Act 1989 and, if that latter section is not in force at
the date of this Agreement, as if such latter section were in
force at such date;
"User" means a term utilised in various sections of the Grid
Code to refer to a person using the NGC Transmission System and
includes an Externally Interconnected Party, all as more
particularly identified in each section of the Grid Code
concerned;
"User Site" means a site owned (or occupied pursuant to a
lease, licence or other agreement) by a User in which there is a
Connection Point;
"User System" means;
(i) other than in relation to an External Pool Member or an
Externally Interconnected Party, any system owned or operated by
a User comprising Generating Units and/or Distribution Systems
(and/or other systems consisting, wholly or mainly, of electric
lines which are owned or operated by a person other than a PES)
and Plant and/or Apparatus connecting Generating Units,
Distribution Systems (and/or other systems consisting, wholly or
mainly, of electric lines which are owned or operated by a person
other than a PES) or Non-Embedded Customers to the NGC
Transmission System or (except in the case of Non-Embedded
Customers) to the relevant other User System, as the case may be,
including any Remote Transmission Assets (as defined in the Grid
Code) operated by such User or other person and any plant and/or
Apparatus and meters owned or operated by the User and or other
person in connection with the distribution of electricity, but
does not include any part of the NGC Transmission System; and
(ii) in relation to an External Pool Member or an Externally
Interconnected Party, the External System Connected to the
relevant External Interconnection;
"VAr" means voltamperes reactive;
"Votes Calculation Period" means:
(i) in relation to the First Quarter in any year, the Third
Quarter in the immediately preceding year;
(ii) in relation to the Second Quarter in any year, the Fourth
Quarter in the immediately preceding year;
(iii) in relation to the Third Quarter in any year, the First
Quarter of the same year; and
(iv) in relation to the Fourth Quarter in any year, the Second
Quarter in the same year;
"Weighted Votes" means, in relation to a Pool Member, the
number of votes to which such Pool Member is entitled pursuant to
Clause 11.2;
"Wh" means watt-hours;
"Working day" has the meaning given to that term in the Act;
and
"Works Programmed Manager" has the meaning given to that
term in Clause 5.13.
1.2 Construction of certain references: In this Agreement,
except where the context otherwise requires, any reference to:
1.2.1 an Act of Parliament or any Part or section or other
provision of, or Schedule to, an Act of Parliament shall be
construed, at the particular time, as including a reference to
any modification, extension or re-enactment thereof then in force
and to all instruments, orders or regulations then in force and
made under or deriving validity from the relevant Act of
Parliament;
1.2.2 another agreement or any deed or other instruments
shall be construed as a reference to that other agreement, deed
or other instrument as the same may have been, or may from time
to time be, amended, varied, supplemented or novated;
1.2.3 an "affiliate" means, in relation to any person, any
holding company or subsidiary of such person or any subsidiary of
a holding company of such person, in each case within the meaning
of sections 736, 736A and 736B of the Companies Act 1985 as
substituted by section 144 of the Companies Act 1989 and, if that
latter section is not in force at the date of this Agreement, as
if such latter section were in force at such date;
1.2.4 a "Business Day" means any week day (other than a
Saturday) on which banks are open for domestic business in the
City of London;
1.2.5 a "day" means a period of 24 hours (or such other
number of hours as may be relevant in the case of charges for
daylight saving) ending at 12.00 midnight;
1.2.6 a "holding company" means, in relation to any person, a
holding company of such person within the meaning given to that
term in Clause 1.2.3;
1.2.7 a "month" means a calendar month;
1.2.8 a "person" includes any individual, partnership, firm,
company, corporation, joint venture, trust, association,
organisation or other entity, in each case whether or not having
separate legal personality;
1.2.9 a "related undertaking" means, in relation to any
person, any undertaking in which such person has a participating
interest as defined by section 260(1) of the Companies Act 1985
as substituted by section 22 of the Companies Act 1989 and, if
that latter section is not in force at the date of this
Agreement, as if such latter section were in force at such date;
1.2.10 a "subsidiary" means, in relation to any person, a
subsidiary of such person within the meaning given to that term
in Clause 1.2.3; and
1.2.11 a "year" means a calendar year.
For all purposes of this Agreement no Party shall be an
associate or a related undertaking of any other Party only by
reason of all or any of the share capital of any Party being
owned directly or indirectly by the Secretary of State.
1.3 Interpretation:
1.3.1 In this Agreement:
(a) references to the masculine shall include the feminine and
references in the singular shall include references in the plural
and vice versa;
(b) references to the word "include" or "including" are to be
construed without limitation;
(c) references to time are to London time;
(d) except where the context otherwise requires, references to a
particular Part, Clause, sub-clause, paragraph, sub-paragraph or
Schedule shall be a reference to that Part, Clause, sub-clause,
paragraph, sub-paragraph or Schedule in or to this Agreement;
(e) except where the context otherwise requires, references in a
Schedule to a particular Section, sub-section, Annex or Appendix
shall be a reference to that Section, sub-section, Annex or
Appendix in or to that Schedule; and
(f) the table of contents, the headings to each of the Parts,
Clauses, sub-clauses, paragraphs, sub-paragraphs, Schedules,
Sections, sub-sections, Annexes and Appendices are inserted for
convenience only and shall be ignored in construing this
Agreement.
1.3.2 With respect to Part XV of and Schedule 21 to this
Agreement (but not elsewhere or otherwise):
(a) in the event that any person is required to give or is
entitled to withhold its consent or approval to terms and
conditions of this Agreement or an Agreed Procedure or Code of
Practice or to any other act, matter or thing under or referred
to in this Agreement or has agreed to revise such terms and
conditions or an Agreed Procedure or Code of Practice or any
dispensation therefrom, such person shall act in good faith and
be reasonable in giving or withholding of such consent or
approval or in imposing conditions to such consent or approval or
in agreeing revised terms and conditions of Part XV of or
Schedule 21 to this Agreement or any Agreed Procedure or Code of
Practice; and
(b) where any person is required to perform any act or give any
consent or notification or do any other thing, it shall, in the
absence of any specified time limit, perform, give or do or (as
the case may be) notify its withholding of its consent or
approval to the same as soon as is reasonably practicable in all
the circumstances.
1.4 Hierarchy: If the provisions of an Agreed Procedure, a Code
of Practice, a Service Line or the Development Policies are
inconsistent with the Provisions of this Agreement, the
provisions of this Agreement shall prevail to the extent of such
inconsistency. If the provisions of a Service Line are
inconsistent with the provisions of an Agreed Procedure or a Code
of Practice, the provisions of the Service Line shall prevail to
the extent of such inconsistency.
1.5.(a) The Parties undertake to review the Agreed Procedures,
the Codes of Practice and the Service Lines by no later than the
date (the "Review End Date") falling 30 days after the date on
which this Clause 1.5 takes effect in accordance with a workplan
in form and content agreed by the Executive Committee and the
Settlement System Administrator as at the date on which this
Clause 1.5 takes effect, such workplan to include the principle
that ESIS will provide discussion drafts of the Service Lines to
the Executive Committee and that these redrafts will then be the
subject of the joint review by ESIS and the Executive Committee.
(b) In reviewing the Agreed Procedures, the Codes of Practice
and the Service Lines:
(i) the product of each Service Line shall remain unaltered and
if any Agreed Procedure or Code of Practice shall have a product
which is part of the current working practice of ESIS but which
is not currently in a Service Line, that product shall be
incorporated into the relevant Service Line;
(ii) subject to (i) above, each of the Agreed Procedures, the
Codes of Practice and the Service Lines shall be brought into
line with Parties' working practices current at the date on which
this Clause 1.5 takes effect and made consistent inter se.
(c) Each of the Parties undertakes to comply at all times with
its obligations under or pursuant to the Service Lines
notwithstanding that the same are being reviewed as provided in
this Clause 1.5.
(d) (i) Each of the Parties undertakes to comply at all times
with the Agreed Procedures and the Codes of Practice insofar as
applicable to such Party provided that:
(A) subject to (B) below, pending completion of the review of
the Agreed Procedures and Codes of Practice pursuant to this
Clause 1.5, if Parties' working practices current at the date on
which this Clause 1.5 takes effect are inconsistent with the
terms of any Agreed Procedure or Code of Practice, such working
practices shall prevail (but without prejudice and subject to the
requirements of Clause 1.5(b)(i)); and
(B) if the review of a Service Line, Agreed Procedure Code of
Practice pursuant to this Clause 1.5 is not completed by the
Review End Date then, until it is completed, the Parties shall
continue to comply with the Parties' working practices then
current.
(ii) The Executive Committee shall provide copies of the Agreed
Procedures and Codes of Practice to a Party upon request.
(e) Nothing in this Clause 1.5 shall affect Clause 1.4 or any
other review of Agreed Procedures, Codes of Practice or Service
Lines required or permitted elsewhere pursuant to this Agreement.
1.6 Obligation on Generators with respect to Availability
Declarations: In respect of each of its Centrally Despatched
Generating Units a Generator shall submit an Availability
Declaration or a re-declared Availability Declaration to ensure
that its Genset Offered Availability and Genset Re-Offered
Availability do not exceed at any time the maximum Gross/Net
generation which it, acting as a prudent operator using Good
Industry Practice, would reasonably expect to achieve if such
Centrally Despatched Generating Unit were to be despatched at
that level. In this Clause 1.6 capitalised terms not defined in
Clause 1.1 shall have the respective meanings given to them in
the Pool Rules.
1.7 1998: The provisions of Schedule 22, shall have effect.
1.8 1998 Framework Agreement: The Parties and the Meter
Operator Parties agree that, to accommodate the removal of the
franchise limit generally contained in Condition 2 of the Second
Tier Supply Licences schedule for 31st March, 1998 (the "1998
Programme"), changes may be needed to this Agreement. The
Parties and Meter Operator Parties therefore authorise the Chief
Executive to maintain a document (the "1998 Framework Agreement")
which shall contain points of principle and text relating to the
implementation of the 1998 Programme which have been approved in
principle by either the Executive Committee or Pool Members in
general meeting. It is the intention of Pool Members that the
1998 Framework Agreement will be revised as further principles
and/or text are agreed by the Executive Committee or Pool Members
in general meeting so that, in good time before 31st March, 1998,
the 1998 Framework Agreement will contain all text necessary to
be included in this Agreement in order to implement the 1998
Programme. Notwithstanding the Agreement of Pool Members or the
Executive Committee to the inclusion of such principles and/or
text in the 1998 Framework Agreement, it is agreed by the
Parties and Meter Operator Parties that no part of the 1998
Framework Agreement shall have effect or shall alter, amend or
replace any part of this Agreement until included in this
Agreement by way of a supplemental agreement hereto and the
process in this Clause 1.8 shall not bind or commit any Party or
Meter Operator Party or otherwise affect in any way the rights
and discretions of any Party or Meter Operator Party to withhold
or qualify its agreement to any supplemental agreement to this
Agreement.
2 THE EFFECTIVE DATE
Commencement: The rights and obligations of each of the Parties
under this Agreement shall commence on the Effective Date.
3 ADDITIONAL PARTIES
3.1 General: Subject to the following provisions of this Clause
3, the Parties shall admit as an additional party to this
Agreement any person (the "New Party") (not, for the avoidance
of doubt, being a successor Settlement System Administrator, Pool
Funds Administrator, Grid Operator or Ancillary Services
Provider, to which the provisions of Clause 3.11, 3.12, 3.13 or,
as the case may be, 3.14 apply) who applies to be admitted, in
the capacity or, as the case may be, capacities requested by the
New Party.
3.2 Admission Application: A New Party wishing to be admitted
as an additional party to this Agreement shall complete an
Admission Application and shall deliver it to the Executive
Committee together with the fee (which shall be non-refundable)
and other documents (if any) therein specified.
3.3 Executive Committee response:
3.3.1 Upon receipt of any Admission Application duly
completed the Executive Committee shall notify (for information
only) all Parties and the Director of such receipt and of the
name of the New Party.
3.3.2 Within 60 days after receipt of a duly completed
Admission Application from a New Party the Executive Committee
shall notify the New Party and the Director either:
(a) that the New Party shall be admitted as a Party, in which
event the provisions of Clause 3.6 shall apply; or
(b) that the Executive Committee requires the New Party to
produce evidence satisfactory to the Executive Committee
("Additional Evidence") demonstrating the New Party's fulfillment
of the admission conditions relevant to it set out in its
Admission Application, in which event the provisions of Clause
3.4 shall apply.
If the Executive Committee shall fail to so notify the New Party
and the Director, the New Party may within 28 days after the
expiry of the said 60 day period refer the matter to the Director
pursuant to Clause 3.5, in which event the provisions of that
Clause shall apply.
3.4 Additional Evidence: Within 28 days (or such longer period
as the Executive Committee in its absolute discretion may allow)
after the Executive Committee has given notice pursuant to Clause
3.3.2(b) the New Party shall:
3.4.1 provide the Executive Committee with the Additional
Evidence, in which event the provisions of Clause 3.6 shall
apply; or
3.4.2 refer the matter to the Director pursuant to Clause
3.5, in which event the provisions of that Clause shall apply,
failing which the New Party's application for admission shall
lapse and be of no effect and the New Party shall not be, and
shall not be entitled to be, admitted as a Party consequent upon
such application (but without prejudice to any new application
for admission it may make thereafter).
3.5 Reference to the Director
3.5.1 If:
(a) any dispute shall arise between the Executive Committee and
a New Party over whether the New Party has fulfilled the
admission conditions relevant to it; or
(b) the Executive Committee shall have failed to notify the New
Party as provided in Clause 3.3 within the 60 day period therein
specified,
the issue of whether the New Party has fulfilled the admission
conditions relevant to it may be referred by way of written
application of the New Party, copied to the Executive Committee,
to the Director for determination. The determination of the
Director, which shall be made within 28 days after receipt of the
said written application and shall be to the effect set out in
paragraph (a) or (b) of Clause 3.5.2, shall be final and binding
for all purposes. The Director shall publish reasons supporting
his determination.
3.5.2 (a) If the determination is to the effect that the New
Party has fulfilled the said admission conditions, the New Party
shall be admitted and the provisions of Clause 3.6 shall apply.
(b) If the determination is to the effect that the New Party has
not fulfilled the admission conditions, the New Party's
application for admission shall lapse and be of no effect and the
New Party shall not be, and shall not be entitled to be, admitted
as a Party consequent upon such application (but without
prejudice to any new application it may make thereafter).
3.6 Admission: If:
3.6.1 the Executive Committee shall notify the New Party and
the Director as provided in Clause 3.3.2(a); or
3.6.2 following a request for Additional Information pursuant
to Clause 3.3.2(b), the New Party provides the same within the
period specified in Clause 3.4; or
3.6.3 the New Party is to be admitted as a Party pursuant to
Clause 3.5.,
the Executive Committee shall forthwith prepare or cause to be
prepared an Accession Agreement. Subject to the Executive
Committee making all notifications and filings (if any) required
of it for regulatory purposes and obtaining all regulatory
consents and approvals (if any) required to be obtained by it,
the Executive Committee shall instruct the Chief Executive or
another person authorised by the Executive Committee for the
purpose to prepare an Accession Agreement and to sign and deliver
the Accession Agreement on behalf of all Parties other than the
New Party and the New Party shall also execute and deliver the
Accession Agreement and, on and subject to the terms and
conditions of the Accession Agreement, the New Party shall become
a Party for all purposes of this Agreement with effect from the
date specified in such Accession Agreement (and, if no such date
is so specified, the date of such Accession Agreement). The New
Party shall pay all costs and expenses associated with the
preparation, execution and delivery of its Accession Agreement.
Each Party hereby authorises and instructs the Chief Executive
and each person authorised for the purpose by the Executive
Committee to sign on its behalf Accession Agreements and
undertakes not to withdraw, qualify or revoke such authority and
instruction at any time. The Executive Committee shall promptly
notify all Parties and the Director of the execution and delivery
of each Accession Agreement.
3.7 Additional Agreements: Upon and as a condition of admission
as a Party, a New Party shall execute and delivery such further
agreements and documents and shall do all such other acts,
matters and things as the Executive Committee may reasonably
require.
3.8 Application fees: All fees received by the Executive
Committee in respect of any application by a New Party to become
a Party shall be used to defray the costs and expenses of the
Executive Committee and shall be paid to such account as the
Executive Committee
3.9 Compliance: Each Party shall procure that for so long as it
is a Party it shall at all times satisfy or otherwise comply with
the admission conditions set out in its Admission Application
applicable to it (and/or such further or other conditions as the
Executive Committee may from time to time reasonably specify) and
upon request from time to time shall promptly provide the
Executive Committee with evidence reasonably satisfactory to the
Executive Committee of such satisfaction and compliance.
3.10 Change of capacities:
3.10.1 Any Found Generator, any Founder Supplier, any
Externally Interconnected Party and any Party admitted as a
additional party to this Agreement pursuant to this Clause 3 may,
upon application to the Executive Committee and satisfaction of
such conditions (if any) as the Executive Committee may
reasonably require, change the capacity(ies) in which it
participates as a Party.
3.10.2 If upon receipt of any Admission Application the
Executive Committee shall consider that the New Party should
either:
(a) not be admitted as a Party in the capacity in which it has
applied so to be admitted but should be admitted in another
capacity; or
(b) be admitted both in the capacity in which it has applied so
to be admitted and in another capacity,
then the Executive Committee shall within the period specified in
Clause 3.3.2 notify the New Party and the Director accordingly
and shall specify what, if any, additional evidence the Executive
Committee requires the New Party to produce to demonstrate its
fulfillment of the admission conditions relevant to its admission
in such other capacity(ies). The provisions of Clauses 3.4, 3.5
and 3.6 shall apply mutatis mutandis to any such admission.
3.11 Successor Settlement System Administrator: Any successor
Settlement System Administrator requiring to be admitted as a
Party in that capacity shall, upon application to the Executive
Committee, be so admitted by way of Accession Agreement modified
insofar as is necessary to take account of the capacity in which
such successor is to be admitted. The provisions of Clause 3.6
shall apply mutatis mutandis to any such admission.
3.12 Successor Pool Funds Administrator: Any successor Pool
Funds Administrator appointed in accordance with the provisions
of Schedule 15 shall be admitted as a Party in that capacity at
such time and on such terms and conditions as the Executive
Committee may reasonably require.
3.13 Successor Grid Operator: Any successor Grid Operator
requiring to be admitted as a Party in that capacity shall, upon
application to the Executive Committee, be so admitted by way of
Accession Agreement modified insofar as is necessary to take
account of the capacity in which such successor is to be
admitted. The provisions of Clause 3.6 shall apply mutatis
mutandis to any such admission.
3.14 Successor Ancillary Services Provider: Any successor
Ancillary Services Provider requiring to be admitted as a Party
in that capacity shall, upon application to the Executive
Committee, be so admitted by way of Accession Agreement modified
insofar as is necessary to take account of the capacity in which
such successor is to be admitted. The provisions of Clause 3.6
shall apply mutatis mutandis to any such admission.
PART II
OBJECTS, REVIEW AND PRIORITY
4 OBJECTS AND PURPOSE OF THE AGREEMENT
4.1 Principal objects and purpose: The principal objects and
purpose of this Agreement are:
4.1.1 to provide a set of rules which, when implemented, will
quantify:
(a) the financial obligations owed by certain Pool Members to
other Pool Members in respect of the former Pool Members'
purchases of electricity produced or delivered by such other Pool
Members; and
(b) the financial obligations owed by certain Pool Members to
the Ancillary Services Provider in respect of the purchase of
Ancillary Services;
4.1.2 to establish, maintain and operate efficiently computer
and other systems (whether or not computer related) which will
implement the rules referred to in Clause 4.1.1; and
4.1.3 by following the procedures for amending this Agreement
set out or referred to herein, to keep under review and promote
the implementation, administration and development of the systems
referred to in Clause 4.1.2 in a way which takes into account,
and balances, the respective interests of actual and potential
generators and suppliers of electricity and of consumers of
electricity and providers of Ancillary Services.
4.2 Interpretation: In the construction and interpretation of
this Agreement due regard shall be had to the principal objects
and purpose set out in Clause 4.1.
4.3 Exercise of rights: In exercising its rights under this
Agreement, each Party shall exercise and enforce such rights and
perform its obligations in good faith having due regard both to
its own legitimate commercial interests and the principal objects
and purpose set out in Clause 4.1.
5 TRANSITIONAL ARRANGEMENTS AND REVIEWS
5.1 [Not used].
Transitional Arrangements
5.2 Transitional Arrangements: The Parties acknowledge and
agree that the arrangements described or referred to in the first
column of Schedule 12 ("Transitional Arrangements") have been
designed as transitional arrangements only. The Parties
undertake with each other to use all reasonable endeavours
(including, where appropriate, through their representation on
the Executive Committee) to give effect to the principle (the
"New Principle") set opposite the relevant Transitional
Arrangement in the second column of Schedule 12 by the date set
opposite such Transitional Arrangement in the third column of
that Schedule. Clauses 5.9 to 5.14 (inclusive) shall have the
effect in relation to all Transitional Arrangements.
Regular Reviews
5.3 Conduct of reviews: Within a period (the "Review Period")
of six months beginning on each of the dates referred to in
Clause 5.5 (the "Review Dates") the Executive Committee shall
review in consultation with the Settlement System Administrator
and the Pool Auditor the operation in practice of this Agreement
and the Settlement System to assess whether the principal objects
and purpose set out in Clause 4.1 are being or could be better
achieved. In carrying out each such review the Executive
Committee shall give due consideration to any matter referred to
it by any Party, the Pool Auditor, the Director or the Secretary
of State. Clauses 5.5 to 5.15 (inclusive) shall have effect in
relation to the reviews described in this Clause 5.3, and such
reviews shall be in addition to the reviews associated with the
Transitional Arrangements.
5.4 [Not used].
5.5 Review Dates: The Review Dates are:
5.5.1 those dates falling 12 and 24 months after the
Effective Date;
5.5.2 those dates falling on the last day of each successive
period of two years, the first such period beginning on 30th
March, 1992; and
5.5.3 such other date(s) as the Pool Members in general
meeting may from time to time determine.
5.6 Reports: Promptly (and in any event within one month) after
the end of each Review Period the Executive Committee shall
prepare or cause to be prepared a written report of its review
containing such matters as are referred to in Clause 5.7 and a
copy of such report shall be sent to each Party, the Pool
Auditor, the Director and the Secretary of State.
5.7 Content of reports: Each report referred to in Clause 5.6
shall set out:
5.7.1 the scope of the review conducted;
5.7.2 the matters reviewed and the investigations and
enquiries made;
5.7.3 the findings of such review;
5.7.4 the recommendations (if any) as to the changes to be
made to this Agreement and the Settlement System so as to achieve
or better to achieve the principal objects and purpose set out in
Clause 4.1;
5.7.5 the effect which any such recommendation referred to in
Clause 5.7.4 would, if implemented, have on the role of the Pool
Auditor under this Agreement and any comments of the Pool Auditor
thereon;
5.7.6 the financial effects (if any) which any such
recommendation referred to in Clause 5.7.4 would, if implemented,
have on Pool Members; and
5.7.7 such other matters as the Executive Committee shall
consider appropriate.
If any Committee Member shall disagree with any of the
recommendations made in any such report, such report shall set
out the reasons for such disagreement and any alternative
proposals of such Committee Member.
5.8 General Meeting approval: Within two months after the end
of each Review Period the Executive Committee shall convene an
extraordinary general meeting of Pool Members to consider and, if
thought fit, approve (in whole or in part) the recommendations
(the "Recommendations") made in the report referred to in Clause
5.6. If any Recommendation is so approved (an "Approved
Recommendation") then subject to Clause 13.5, the provisions of
Clauses 5.9 to 5.14 (inclusive) shall have effect in relation
thereto. If any Recommendation is not so approved, no further
action shall be taken in respect thereof arising from such
report.
Works Programme
5.9 Works Programme: In respect of each Transitional
Arrangement and each Approved Recommendation the Executive
Committee shall:
5.9.1 in the case of a Transitional Arrangement, but the date
set opposite such Transitional Arrangement in the fourth column
of Schedule 12; and
5.9.2 in the case of an Approved Recommendation, by the date
stipulated by the Pool Members in general meeting or (if no date
is stipulated) within a reasonable time,
prepare (or cause to be prepared in consultation with the Pool
Auditor a programme (the "Works Programme") which expression
shall include any associated documentation hereinafter referred
to in this Clause 5.9) which programme shall (unless otherwise
resolved by the Executive Committee after consultation with those
Parties not being Pool Members who might reasonably be expected
to be affected by the Works Programme) include:
(a) a detailed timetable for the implementation of the New
Principle or (as the case may be) the Approved Recommendation,
including (where appropriate) a series of milestone and/or target
dates for the achievement of specified parts of such programme;
(b) a full explanation of how such New Principle or Approved
Recommendation is to be implemented, including a detailed
analysis of such New Principle or Approved Recommendation and the
objectives which it is intended to achieve, the work involved,
the resources required and the amendments likely to be required
to this Agreement, the Specification and to any other relevant
agreement or document and of any changes required to be made to
the Software or the Hardware; and
(c) an estimate of the cost of such implementation supported by
a breakdown of such cost and a detailed commentary on each
element thereof together with proposals for the recovery of such
cost,
and (unless otherwise resolved by the Executive Committee after
consultation with those Parties not being Pool Members who might
reasonably be expected to be affected by the Works Programme)
shall be supported by:
(i) any draft legal documentation required to give effect to the
amendments referred to in paragraph (b) above; and
(ii) the outline form of agreement appointing the Works Programme
Manager as project manager for the implementation of the Works
Programme (which form shall, where the Settlement System
Administrator is or, in the Executive Committee's opinion, is
likely to be the Works Programme Manager or where the Works
Programme involves changes to the Specification or the Software,
be prepared in consultation with the Settlement System
Administrator).
5.10 Review: The Executive Committee shall arrange for a copy of
each Works Programme to be sent to each Party, the Pool Auditor
and the Director for review under cover of a letter setting a
deadline for receipt of comments on such Works Programme (being
no earlier than one month and no later than two months after the
date of despatch of copies of the Works Programme for comment)
and indicating to whom such comments should be addressed. Within
such time as is reasonable after the deadline set for receipt of
comments but, in any event, within two months thereafter, the
Executive Committee shall revise (or cause to be revised) the
Works Programme to take into account (so far as it considers
desirable) the comments received from the Parties, the Pool
Auditor and the Director.
5.11 General Meeting referral: As soon as a Works Programme has
been revised as provided in Clause 5.10 (or, if the Executive
Committee considers no such revision desirable, within one month
after the deadline set under Clause 5.10 for receipt of comments
on such Works Programme), the Executive Committee shall convene
an extraordinary general meeting of Pool Members to consider and,
if thought fit, approve such Works Programme (with or without
amendment).
5.12 Approval of the Works Programme:
5.12.1 A Works Programme shall not be given effect to unless
and until approved by the Pool Members in general meeting.
Additionally, if a Works Programme or any part thereof shall
involve a matter requiring the approval of Generators or
Suppliers in separate general meeting under Clause 13.2 (a "Class
Issue"), then such Works Programme shall not be given effect to
unless and until approved by the relevant class of Pool Members.
If a Works Programme shall not be duly approved (with or without
amendment), the Executive Committee shall revise (or cause to be
revised) the same to take account of the wishes of the Pool
Members in general meeting and/or (as the case may be) in
separate general meeting and thereafter such revised Works
Programme shall be re-submitted to the Pool Members in general
meeting and, if such revised Works Programme or any part thereof
shall involve a Class Issue, to the relevant Pool Members in
separate general meeting, in each case for approval (with or
without amendment). This revision and re-submission procedure
shall be repeated as often as may be required until such time as
the Pool Members in general meeting and, as necessary, in
separate general meetings approve the Works Programme.
5.12.2 Notwithstanding the provisions of Clause 5.12.1, the
Executive Committee and each Party shall be entitled at any time
prior to the approval of a Works Programme by the Pool Members in
general meeting and (where required under Clause 5.12.1) by the
relevant class of Pool Members in separate general meeting to
apply to the Director requesting that the implementation of the
New Principle or (as the case may be) the Approved Recommendation
should not proceed or should not proceed in the manner set out by
such Works Programme and, in such event, effect shall not be
given to the Works Programme pending the determination of the
Director and then (subject as provided in Clause 5.14) only to
the extent (if at all) that the Director in his absolute
discretion shall approve.
5.13 Implementation: The implementation of all Works Programmes
shall be project managed by the Settlement System Administrator
or (if the Settlement System Administrator is unable or unwilling
so to project manage) such other person as the Executive
Committee shall nominate (the "Works Programme Manager") upon and
subject to such terms and conditions as are agreed by the
Executive Committee with the Works Programme Manager and the cost
thereof recovered in accordance with the terms of the relevant
Works Programme. Cost overruns, liquidated damages and all other
financing costs, incentives and penalties shall be financed,
levied and/or paid at the times and in the manner provided for in
such Works Programme. Costs incurred by the Settlement System
Administrator shall be recovered in accordance with the Charging
Procedure. The Executive Committee shall require the Works
Programme Manager to prepare and submit to the Executive
Committee no less frequently than quarterly a written report
giving a detailed commentary on the progress of implementing each
Works Programme, including a comparison of actual progress made
against the timetable set by such Works Programme and of actual
costs incurred against budgeted costs.
5.14 Pool Auditor's approval: At the completion of the work
required by each Works Programme but prior to effect being given
to the New Principle or (as the case may be) the Approved
Recommendation the Executive Committee shall request the Pool
Auditor to issue an opinion in form and content satisfactory to
the Executive Committee confirming to all Parties and the
Director that the Pool Auditor has inspected and tested the
arrangements giving effect to the New Principle or (as the case
may be) the Approved Recommendation and is satisfied (without
qualification or reservation) that such arrangements do give
effect to the New Principle or Approved Recommendation in the
manner required by the Works Programme. The Executive Committee
shall use all reasonable endeavours to make (or procure to be
made) such modifications to such arrangements as are necessary to
enable the Pool Auditor to give its opinion without qualification
or reservation, and the costs of any such modification shall be
recovered in accordance with the relevant Works Programme. If
the Pool Auditor's opinion can be given only with qualification
or reservation, the Executive Committee shall convene an
extraordinary general meeting of Pool Members and, where required
under Clause 5.12.1, a separate general meeting of Generators
and/or (as the case may be) Suppliers to consider and, if thought
fit, approve such arrangements in the knowledge that the Pool
Auditor's opinion can be given only with qualification or
reservation. Subject to the provisions of Clause 6, each of the
Parties undertakes with each of the other Parties promptly
following the issue of the Pool Auditor's opinion (but, where
such opinion has a qualification or reservation, only after
approval as aforesaid by the Pool Members in general meeting
and, where required under Clause 5.12.1, by the relevant class
of Pool Members in separate general meeting) to execute and
deliver any amending agreement or other documents and to take
such other action as may reasonably be required of it to give
effect to such arrangements, in any such case at its own cost and
expense.
5.15 Secretary of State's approval: In respect of the Secretary
of State's decision as set out in his letter of 11th December,
1991 to the Chief Executive concerning the selling of the output
of plant by Generators with on-site demand under this Agreement:
5.15.1 each of the Parties undertakes with each of the other
Parties forthwith to take all such steps (including as to the
execution of any document) as may be required to give full force
and effect to the decision of the Secretary of State. Each of
the Parties shall take all such steps at its own cost and expense
except that the Settlement System Administrator, the Pool Funds
Administrator and the Ancillary services Provider shall be
entitled to recover any such costs and expenses in accordance
with the terms of this Agreement; and
5.15.2 each of the Parties acknowledges and agrees that
damages would not be an adequate remedy for any failure by it to
give in accordance with Clause 5.15.1 full force and effect to
the decision of the Secretary of State pursuant to this Clause
5.15 and that, accordingly, each of the other Parties and the
Director shall be entitled to the remedies of injunction,
specific performance and other equitable relief for any
threatened or actual such failure and that no proof of special
damages shall be necessary for enforcement.
5.16 Director's modifications:
5.16.1 Where the Monopolies and Mergers Commission has issued
a report on a reference under section 12 of the Act which:
(a) includes conclusions to the effect that any of the matters
specified in the reference operate, or may be expected to
operate, against the public interest;
(b) specifies effects adverse to the public interest which those
matters have or may be expected have;
(c) includes conclusions to the effect that those effects could
be remedied or prevented by modifications of the conditions of
any Licence and such modifications would require a change to the
Pooling and Settlement Agreement; and
(d) specifies modifications by which those effects could be
remedied or prevented,
the Director may, subject to the following provisions of this
Clause, require such modifications to this Agreement as are
requisite for the purpose of remedying or preventing the adverse
effect specified in the report.
5.16.2 Before requiring modifications to be made pursuant to
this Clause, the Director shall have regard to the modifications
specified in the report. Further, the Director shall not, and
shall not be entitled to, require a modification to be made to
this Agreement which modification could not have been achieved
lawfully through a modification of one or more Licences
consequent upon the report (but as if, for this purpose, only
those Parties who are holders of Licences were parties to this
Agreement).
5.16.3 Before requiring modifications to be made pursuant to
this Clause, the Director shall give notice:
(a) stating that he proposes to make the modifications and
setting out their effect;
(b) stating the reasons why he proposes to make the
modifications; and
(c) specifying the period (not being less than 28 days from the
date of publication of the notice) within which representations
or objections with respect to the proposed modifications may be
made,
and shall consider any representations or objections from any
person which are duly made and not withdrawn.
5.16.4 A notice under Clause 5.16.3 shall be given:
(a) by publishing the notice in such manner as the Director
considers appropriate for the purpose of bringing the matters to
which the notice relates to the attention of persons likely to be
affected by the making of the modifications; and
(b) by serving a copy of the notice on each Party, the Executive
Committee and the Pool Auditor.
5.16.5 After considering any representations or objections
which are duly made and not withdrawn pursuant to Clause 5.16.3,
the Director may by notice published as provided in Clause
5.16.4(a) and served on those referred to in Clause 5.16.4(b)
specify the modifications to this Agreement which he requires to
be made and the date upon which such modifications are to take
effect and each of the Parties undertakes with each other of the
Parties promptly to take all such steps as may be necessary to
give full force and effect to the modifications so required. Any
costs incurred by the Settlement System Administrator in giving
effect to such modifications shall be recovered in accordance
with the Charging Procedure.
6 ENTRENCHED PROVISIONS, INCONSISTENCIES AND CONFLICTS
Entrenched Provisions
6.1 Secretary of State's consent: The Parties acknowledge and
agree that, notwithstanding any other provision of this
Agreement, no amendment to or variation of any of the matters
dealt with in any of the following provisions of this Agreement
shall take effect without the prior written consent of the
Secretary of State:
6.1.1 Clause 5.15, Part XIV and Section 28 of Schedule 9; and
6.1.2 this Clause 6.1.
6.2 Director's consent: The Parties acknowledge and agree that,
notwithstanding any other provision of this Agreement, no
amendment to or variation of any of the matters dealt with in any
of the following provisions of this Agreement shall take effect
without the prior written consent of the Director:
6.2.1 (a) Clauses 3.5, 4, 5.12.2, 5.15, 5.16, 6.11, 11, 13,
15.6, 53.6, 67.3, 67.4, 83, 84 and 85 and Section 8 of Schedule
14 and Section 7 of Schedule 20;
(b) sub-section 19.1 of Schedule 14; and
(c) paragraphs 1.4, 2.2.3, 3.3, 3.4, 3.7, 4.4.1, 6.4, 6.5, 17.3
and 22.5 of Schedule 21;
6.2.2 without prejudice to Clause 6.2.3, the Pool Rules or
any of them, other than an amendment or variation which:
(a) involves only a change of a technical nature in the systems,
rules and procedures contemplated by this Agreement; and
(b) will not increase the liability or decrease the rights of
any Party under this Agreement beyond what may reasonably be
regarded as de minimis in relation to such Party,
but in any event including Section 22 thereof;
6.2.3 any provision of this Agreement which requires or
permits any matter to be referred to the Director for approval,
consent, direction or decision or confers any rights or benefits
upon the Director; and
6.2.4 this Clause 6.2
6.3 Settlement System Administrator's consent: The Parties
acknowledge and agree that, notwithstanding any other provision
of this Agreement, insofar as directly affects in any material
respect the rights, benefits, duties, responsibilities,
liabilities and/or obligations of the Settlement System
Administrator no amendment to or variation of any of the matters
dealt with in any of the following provisions of this Agreement
shall take effect:
6.3.1 without the prior written consent of the Settlement
System Administrator:
(a) the definitions in Clause 1.1 of "Agreed Procedure",
"Charging Procedure", "Code of Practice", "Force Majeure", "Good
Industry Practice", "Hardware", "SSA Arrangements" and SSA
System"'
(b) Clauses 6.9, 7.3, 7.6, 9.5, 10.9, 10.10, 19.4, 34.1, 34.2,
35.3, 35.6, 36.2, 37, 66, 68, 69, 74 and 78.2;
(c) Schedule 4;
(d) Sections 1.6 (and its application to any other Section of
Schedule 9), 1.7 and 3 of Schedule 9; and
(e).this Clause 6.3;
6.3.2 without the prior written consent of the Settlement
System Administrator (such consent not to be unreasonably
withheld or delayed):
(a) Clauses 18.1.2, 18.1.4, 19.5, 41, 45, 47.1, 47.3, 48.1,
48.2, 48.9, 60, 70, 71.1, 71.4 and 71.5;
(b) Part XXII (other than Clauses 74 and 78.2);
(c) Section 30 of, and Appendix 4 to, Schedule 9;
(d) Section 2(b) of Part C to Schedule 17; and
(e) paragraphs 4 to 16 (inclusive), 18, 19, 21 and 22 of
Schedule 21.
6.4 Pool Funds Administrator's consent: The prior written
consent of the Pool Funds Administrator may be needed to certain
amendments to or variations of this Agreement, as provided in
Schedule 15.
6.5 Grid Operator's consent: The Parties acknowledge and agree
that, notwithstanding any other provision of this Agreement,
insofar as directly affects in any material respect the rights,
benefits, duties, responsibilities, liabilities and/or
obligations of the Grid Operator, no amendment to or variation of
any of the matters dealt with in any of the following provisions
shall take effect:
6.5.1 without the prior written consent of the Grid Operator:
(a) Clauses 6.9, 7.3, 7.6, 9.5, 10.9, 10.10, 19.4, 25, 37.3, 47
to 50 (inclusive), 66, 68, 69, 72, 74 and 78.2;
(b) sub-section 3.1 of Appendix 2 to Schedule 9; and
(c) this Clause 6.5; and
6.5.2 without the prior written consent of the Grid Operator
(such consent not to be unreasonably withheld or delayed), any
other provision of this Agreement,
Provided that the references to Parties and to the Grid Operator
in this Clause 6.5 shall be construed as if they were references
to such terms prior to the creation of Meter Operator Parties and
the associated amendments to this Agreement, but this shall be
without limitation to any right of the Grid Operator to consent
to any amendment or variation to this Agreement under this Clause
6.5.
6.6 Ancillary Services Provider's consent: The Parties
acknowledge and agree that, notwithstanding any other provision
of this Agreement, insofar as directly affects in any material
respect the rights, benefits, duties, responsibilities,
liabilities and/or obligations of the Ancillary Services
Provider, no amendment to or variation of any of the following
provisions shall take effect:
6.6.1 without the prior written consent of the Ancillary
Services Provider:
(a) Clauses 6.9, 7.3, 7.6, 9.5, 10.9, 10.10, 19.4, 25, 52.3, 66,
68, 69, 72, 74 and 78.2;
(b) Part XI and the provisions expressly incorporated therein by
reference;
(c) Sections 1.8, 23, 24.8 and 28 of Schedule 9; and
(d) this Clause 6.6; and
6.6.2 without the prior written consent of the Ancillary
Services Provider (such consent not to be unreasonably withheld
or delayed), any other provision of this Agreement.
6.7 Amendments generally:
6.7.1 The following provisions of this Clause 6.7 are without
prejudice to the rights, powers and privileges of the Secretary
of State and the Director under the Act or any Licence or
otherwise howsoever.
6.7.2 In relation to Schedule 4 (including its Appendix), and
save as provided in Clause 6.7.3, where that Schedule provides
for an amendment to the SSA Arrangements, the Menus of Prices or
the Variation Menus (or any or any part thereof) to be agreed
between certain designated persons and those persons agree in
writing the amendment to be made, then the SSA Arrangements, the
Menu of Prices or, as the case may be, the Variation Menus (or
the relevant one or part thereof) shall be so amended without the
need for any other Party to execute or deliver any amending or
confirmatory document and each Party hereby consents to such
amendments being made in such a manner and undertakes not to
withdraw that consent.
6.7.3 In the following cases the amendment procedure set out
in Clause 6.7.2 shall itself be modified as hereinafter provided:
(a) if Schedule 4 refers to "formal documentation" being agreed
to give effect to the amendment, an amending agreement executed
by all Parties shall be required;
(b) if the consent of a particular person is required to be
obtained under Clauses 6.1 to 6.6 (inclusive), the amendment
shall not take effect until that consent has been obtained.
6.7.4 Subject to:
(a) any consent of a particular person required to be obtained
under Clauses 6.1 to 6.6 (inclusive) being obtained;
(b) the requirements of Clauses 6.7.5 and 13.2,
and save as provided otherwise in this Agreement, any amendment
to or variation of this Agreement shall be effective if approved
by Pool Members in general meeting pursuant to clause 13.1 or
13.2 and all Parties agree promptly to execute and deliver all
agreements and other documentation and to do all such other acts,
matters and things as may be necessary to give effect to such
amendment or variation.
6.7.5 Where any change is proposed to be made to this
Agreement which, if made:
(a) would introduce provisions dealing with matters not then
dealt with in or expressly contemplated by this Agreement; and
(b) would in any material respect directly affect the rights,
benefits, duties, responsibilities, liabilities and/or
obligations under this Agreement of the Settlement System
Administrator, the Grid Operator, the Ancillary Services Provider
and/or any Externally Interconnected Party,
such change shall not be made without the prior written consent
of the relevant one of them (in each case not to be unreasonably
withheld or delayed) provided that the reference to the Grid
Operator in this Clause 6.7.5 shall be construed as if it was a
reference to such term prior to the creation of Meter Operator
Parties and the associated amendments to this Agreement, but this
shall be without limitation to any right to consent to any
amendment or variation of this Agreement under this Clause 6.7.5.
Inconsistencies and Conflicts
6.8 Internal inconsistencies and conflicts: In the event of any
inconsistency or conflict:
6.8.1 the Pool Rules shall prevail over the other provisions
of this Agreement (except Clause 4);
6.8.2 the provisions of this Agreement shall prevail over the
Specification; and
6.8.3 the Specifications shall prevail over the Software,
and the Parties shall use all reasonable endeavours promptly to
secure the elimination of such inconsistency or conflict.
6.9 External inconsistencies and conflicts:
6.9.1 Each of the Parties hereby acknowledges and agrees the
desirability of achieving and maintaining consistency and absence
of conflict between the provisions of this Agreement and the Grid
Code but recognises that, due principally to the different
functions and objectives of this Agreement and the Grid Code, the
fact that there may be Parties who are not bound by the Grid Code
and the different procedures in this Agreement and the Grid Code
for review of their respective terms, it will not in all
circumstances be possible to avoid inconsistency or conflict.
6.9.2 Where at the Effective Date there is an inconsistency
or conflict between the provisions of this Agreement and the Grid
Code the Executive Committee shall first consider the matter and
make recommendations and thereafter the Parties shall negotiate
in good faith to eliminate such inconsistency and/or conflict
having regard to the different functions and objectives of the
Grid Code and this Agreement.
6.9.3 Each of the Parties shall use its reasonable endeavours
to ensure that where any change to this Agreement is proposed to
be made which may reasonably be expected to require a change to
the Grid Code (or vice versa) such change is brought by the
Executive Committee to the attention of the Grid Code Review
Panel in good time to enable it to consider what corresponding
change, if any, should be made to the Grid Code or (as the case
may be) this Agreement. In any such consideration, the Parties
acknowledge and agree that it would be desirable in the event of
any inconsistency or conflict between the provisions of this
Agreement and the Grid Code if regard were had by the Grid Code
Review Panel to the principles set out in Clause 6.9.4.
6.9.4 The principles referred to in Clause 6.9.3 are that:
(a) where by reason of any inconsistency or conflict the
security, quality of supply and/or safe operation of the NGC
Transmission System under both normal and/or abnormal operating
conditions would necessarily be compromised and/or the Grid
Operator would necessarily be in breach of its obligations under
the Act or its Transmission Licence, the provisions of this
Agreement should be made to conform (to the extent of such
inconsistency or conflict) to those of this Agreement.
(b) in any other case, where by reason of such inconsistency or
conflict there is or is likely to be a material financial effect
on any class of Pool Members or on all or a significant number of
Pool Members, the provisions of the Grid Code should be made to
conform (to the extent of such inconsistency or conflict) to
those of this Agreement.
6.9.5 The Parties acknowledge that changes to the Grid Code
are required to be approved by the Director.
6.9.6 Where there is any conflict or inconsistency between
the Grid Code and the Pool Rules, no Party shall be liable
hereunder or under the Grid Code as a result of complying with
its obligations under this Agreement or under the Grid Code.
6.10 Breaches of the Pool Rules: If at any time any Party
believes that there has been a breach of the Pool Rules, such
Party shall promptly report the same in writing to the Executive
Committee.
6.11 Director's requests" The Executive Committee shall:
(i) give due and prompt consideration to any matter referred to
it in writing by the Director;
(ii) advise the Director in writing of any decision or action of
the Executive Committee in relation to such matter;
(iii) provide the Director in writing with an explanation in
reasonable detail of the reasons for such decision or action; and
(iv) if reasonably requested by the Director (having regard, in
particular, to the resources available to the Executive
Committee), in relation to any proposal by the Director for a
change to any provision of this Agreement provide or procure the
provision of advice and assistance to the Director as soon as
reasonably practicable as to the implications of the change and
the actions necessary to implement it (including any relevant
feasibility study).
PART III
POOL MEMBERSHIP AND GENERAL MEETINGS
7 INTRODUCTION
7.1 Obligations contractually binding: Each Pool Member
acknowledges and agrees that it is bound to each other Pool
Member as matter of contract and will comply with its obligations
under this Agreement.
7.2 Externally Interconnected Parties: Each Externally
Interconnected Party acknowledges and agrees that it is bound to
each Pool Member as a matter of contract and undertakes to comply
with the Pool Rules so far as they may be applicable to it and
each Pool Member acknowledges and agrees that it is bound to each
Externally Interconnected Party as a matter of contract and will
comply with its obligations under this Agreement.
7.3 Parties not Pool Members: The Settlement System
Administrator, the Pool Funds Administrator, the Grid Operator
and the Ancillary Services Provider shall not be Pool Members and
shall not be bound as against other Pool Members or the Executive
Committee except as expressly provided for in this Agreement, the
Escrow Agreement and the Funds Transfer Agreement in their
respective roles as Settlement System administrator, Pool Funds
Administrator, Grid Operator and Ancillary Services Provider.
7.4 Pool Rules:
7.4.1 The Pool Rules as at 1st April, 1996 are set out in
Schedule 9. The Settlement System calculations shall be carried
out on the basis of the Settlement System and the Pool Rules.
7.4.2 The Pool Rules shall be developed under the control of
the Executive Committee. Subject to Clause 6, the Executive
Committee may at any time and from time to time change all or any
of the Pool Rules upon notification to all Parties and Meter
Operator parties, and any such change shall be binding on all
Parties and Meter Operator Parties without further action being
required on the part of any person.
7.5 Pool Member's obligations:
7.5.1 Save as otherwise expressly provided in this Agreement,
the obligations of each Pool Member under this Agreement are
several and a Pool Member shall not be responsible for the
obligations or liabilities of any other Pool Member. The failure
of any Pool Member to carry out all or any of its obligations
under this Agreement shall not relieve any other Pool Member of
all or any of its obligations hereunder.
7.5.2 In respect of those obligations of a Pool Member (the
"Indemnifying Pool Member") under this Agreement which are
expressed to be several, the Indemnifying Pool Member shall
indemnify and keep indemnified each other Pool Member from and
against all losses, costs (including legal costs) and expenses
which such other Pool Member may suffer or incur as a result of
being held liable by operation of law (or contesting any such
liability) for the performance or non-performance of all or any
of such obligations of the Indemnifying Pool Member.
7.6 Information: In respect of all data and other information
which a Pool Member or an Externally Interconnected Party (not
being a Pool Member) is required to notify to the Settlement
System Administrator under or pursuant to this Agreement (other
than (i) Metered Data (as defined in paragraph 3.1.2 of Schedule
9) and (ii) pursuant to paragraph 2.3.2 of Schedule 9, the
relevant Pool Member or (as the case may be) Externally
Interconnected Party shall use all reasonable endeavours to
ensure that all such data and other information is complete and
accurate in all material respects.
8 POOL MEMBERSHIP
8.1 Initial Pool Members: The initial Pool Members shall be the
Founder Generators and the Founder Suppliers.
8.2 Additional Pool Members:
8.2.1 Subject to the following provisions of this Clause 8.2
and Clause 8.13 and to the fulfilment by the Party concerned of
the conditions set out or referred to in Clause 8.3 (the "Pool
Membership Conditions"), any Party shall, upon application to the
Executive Committee, be admitted as a Pool Member.
8.2.2 For the purposes of this Clause 8, "Party" shall
include any person who is applying to be admitted as a Party
pursuant to Clause 3 contemporaneously with being admitted as a
Pool Member but shall exclude the Settlement System
Administrator, the Pool Funds Administrator, the Grid Operator
and the Ancillary Services Provider.
8.2.3 Subject to Clause 8.2.4, the admission of a Party as a
Pool Member shall take effect on the date (the "Admission Date")
specified by the Executive Committee (with the prior agreement
of the Settlement System Administrator) in a notice given by the
Executive Committee to the relevant Party no later than 28 days
after the Satisfaction Date, provided that the Admission Date
shall be a date falling no earlier than the Satisfaction Date and
(unless otherwise agreed by the Executive Committee, the
Settlement System Administrator and such Party) no later than 90
days after the Satisfaction Date. In default of such
notification being given by the Executive Committee within the
said 28 days, the admission shall take effect on the day falling
35 days after the Satisfaction Date. For the purposes of the
Clause, the "Satisfaction Date" shall be the day on which the
last of the Pool Membership Conditions required to be fulfilled
by such Party shall have been fulfilled by it.
8.2.4 No person shall be admitted as a Pool Member unless
prior to or contemporaneously with such admission it shall have
been or (as the case may be) shall be admitted as a Party.
8.2.5 Prior to a Party's admission as a Pool Member the
Executive Committee shall, where appropriate, determine and
notify the relevant Party of the amount of Security Cover (if
any) to be provided by such Party.
8.3 Pool Membership Conditions:
8.3.1 Where a person has been admitted as a Party pursuant to
Clause 3 otherwise than contemporaneously with being admitted as
a Pool Member pursuant to Clause 8, the Pool Membership
Conditions applicable to it shall (unless otherwise determined by
the Director upon the application of such person or the Executive
Committee) be those that would have been applicable to it if it
had applied to be admitted as a Pool Member at the date of its
admission as a Party and, subject as aforesaid, such person shall
not be required to fulfil any further or other Pool Membership
Conditions introduced after such date unless the applicant
notifies the Executive Committee in writing prior to or
contemporaneously with its application for admission as a Pool
Member that it wishes such further or other conditions to apply,
in which case the Pool Membership Conditions applicable to it
shall (subject as aforesaid) be those applicable on the date of
its application for admission as a Pool Member.
8.3.2 The Pool Membership Conditions required to be fulfilled
by a Party prior to its admission as a Pool Member are:
(a) the due completion by the Party and the delivery to the
Executive Committee of a Pool Membership Application;
(b) in respect of any Metering System required to be taken into
account for the purposes of Settlement and which relates to the
Party, the provision of evidence reasonably satisfactory to the
Executive Committee that:
(i) there is a Registrant and an Operator for such Metering
System;
(ii) such Registrant has provided to the Settlement System
Administrator the information required for standing data purposes
as required by this Agreement or the relevant Agreed Procedure;
and
(iii) such Metering System conforms with the requirements of
Part XV, all relevant Agreed Procedures and all Codes of Practice
and is compatible with the Settlement System;
(c) the Party has entered into and has in full force and effect
all appropriate Connection Agreements or, if the Party is
applying to be admitted as an External Pool Member, that all
appropriate Connection Agreements with the relevant Externally
Interconnected Party in relation to the relevant Interconnection
are in full force and effect;
(d) the provision of such information as the Executive Committee
may reasonably require to enable the Executive Committee to
ascertain whether any of the provisions of Clause 11.4 are
applicable to that Party, to determine whether that Party is an
Independent Generator, Small Generator and/or Independent
Supplier and to calculate the initial Weighted Votes and Points
of that Party as a Pool Member under Clause 11.3 and Schedule 13
respectively;
(e) the provision of such information as the Executive Committee
may reasonably require:
(i) to enable the Executive Committee to ascertain whether (and,
if so, on what basis) that Party is entitled to take the benefit
of any exception in Clause 8.5 claimed by it; and
(ii) to assist the Executive Committee in making any
determination under Clause 8.5 relevant to that Party;
(f) if the Party is a Generator (other than an External Pool
Member), the provision of evidence reasonably satisfactory to the
Executive Committee that the Party operates or has under its
control one or more Generating Units, which Generating Unit(s)
has (have) provided electricity to the Total System or will be
capable of so providing electricity within such period as the
Executive Committee may specify; and
(g) if the Party is an External Pool Member, the provision of
evidence reasonably satisfactory to the Executive Committee that
the Party has the right to use one or more Generation Trading
Blocks and/or the right to take electricity across an External
Interconnection under an Interconnection Agreement then in full
force and effect.
8.4 Compliance: Each Pool Member shall procure that for so long
as it is a Pool Member it shall at all times satisfy or otherwise
comply with those Pool Membership Conditions (whether set out in
this Agreement or in its Pool Membership Application) applicable
to it (and/or such further or other conditions as the Executive
Committee may from time to time reasonably specify). Each Pool
Member shall upon request from time to time promptly provide the
Executive Committee with such information as the Executive
Committee may reasonably require (i) to enable the Executive
Committee to ascertain whether (and, if so, on what basis) that
the Pool Member is entitled to take the benefit of any exception
in Clause 8.5 claimed by it, and (ii) to assist the Executive
Committee in making any determination under Clause 8.5 relevant
to that Party, and further with evidence reasonably satisfactory
to the Executive Committee of such satisfaction and compliance.
8.5 Restrictions applicable to Pool Members:
8.5.1 At each of its Sites, or where any such Site forms part
of a Trading Site, such Trading Site, each Generator shall sell
its entire Exports of electricity to Pool Members pursuant to
this Agreement except:
(a) for its Exports of electricity from any generating station
in respect of which (but for other generating stations owned or
operated by it) it would not be required to hold a Generation
Licence, being Exports at any Site or, as the case may be,
Trading Site for which the Generator is not required to complete
a Supplemental Agreement to the Master Connection and Use of
System Agreement
Provided that the Generator has given the Executive
Committee either on the Effective Date or not less than 10
Business Days before that Site or, as the case may be, Trading
Site is withdrawn from the requirements of this provision,
written notice that the circumstances described in sub-paragraph
(a) apply; or
(b) for the output of electricity from any of its Generating
Units in circumstances which the Executive Committee resolves by
a vote passed by 80 per cent or more of the votes of all
Committee Members (after consultation with the Director) are
exceptional.
8.5.2 In respect of all its requirements for electricity
which a supplier wishes to purchase from Pool Members, the
Supplier shall purchase the same pursuant to this Agreement,
provided that nothing in this Agreement shall prevent or restrict
the purchase by a Supplier otherwise than pursuant to this
Agreement:
(a) in circumstances where the Supplier is acting otherwise than
in its capacity as a consumer, of all or part of that output of
electricity from any Generating Unit which is not required to be
sold to Pool Members pursuant to Clause 8.5.1 or of electricity
which has been purchased by an External Pool Member at its
associated External Interconnection as an export from the NGC
Transmission System pursuant to this Agreement; or
(b) in circumstances where the Supplier which has purchased that
electricity pursuant to this Agreement; or
(i) of electricity from any Supplier which has purchased that
electricity pursuant to this Agreement; or
(ii) of such output of electricity as is referred to in paragraph
(a) above; or
(c) in circumstances where the Supplier is a Supplier holding a
PES Licence and is acting in its capacity as a PES, of
electricity from any Supplier which is a Supplier holding a PES
Licence, which operates a Distribution System directly connected
to the Distribution System operated by the Supplier first
mentioned in this paragraph (c) and which has purchased that
electricity pursuant to this Agreement; or
(d) in circumstances which the Executive Committee resolves by a
vote passed by 80 per cent or more of the votes of all Committee
Members (after consultation with the Director) are exceptional,
from any person.
For the purposes of this Clause 8.5.2 a "consumer" means a person
who purchases electricity from a Supplier for its own consumption
at premises owned or occupied by that person.
8.6 Restrictions applicable to non-Pool Members: Save as
otherwise expressly provided, a Party which is not a Pool Member
shall not be entitled to any of the rights and benefits accorded
to Pool Members under this Agreement.
8.7 Resignation: Subject as provided in Clause 8.8:
8.7.1 a Party (other than the Settlement System
Administrator, the Pool Funds Administrator, the Grid Operator,
the Ancillary Services Provider and each Externally
Interconnected Party) shall be entitled at any time to resign as
a Party by delivering a Resignation Notice to the Secretary; and
8.7.2 such resignation shall take effect 28 days after
receipt of the Resignation Notice by the Secretary.
Promptly after receipt of a duly completed Resignation Notice
from a Party, the Secretary shall notify (for information only)
all of the other Parties, the Executive Committee and the
Director of such receipt and of the name of the Party wishing to
resign.
8.8 Restrictions on resignation: A Party may not resign as a
Party (and any Resignation Notice delivered pursuant to Clause
8.7.1 shall lapse and be of no effect) unless:
8.8.1 as at the date its resignation would otherwise become
effective all sums due from such Party to the Executive Committee
or any other Party under (a) this Agreement, (b) the Funds
Transfer Agreement or (c) any agreement entered into pursuant to
this Agreement (whether by or on behalf of such Party) and
notified for the purposes of the Clause 8.8 by the Executive
Committee to such Party prior to the date of its resignation,
have been paid in full; and
8.8.2 it would not be a breach of any Licence condition
applicable to such Party so to resign.
8.9 Release as a Party: Without prejudice to Clause 66.7 and
its accrued rights and liabilities and its rights and liabilities
which may accrue in relation to the period during which it was a
Party under this Agreement, the Funds Transfer Agreement or any
agreement referred to in Clause 8.8.1(c), upon a Party's
resignation becoming effective in accordance with Clause 8.7:
8.9.1 such Party (if it is a Pool Member) shall cease
automatically to be a Pool Member;
8.9.2 such Party shall be automatically released and
discharged from all its obligations and liabilities under this
Agreement, the Funds Transfer Agreement and any agreement
referred to in Clause 8.8.1(c); and
8.9.3 each of the other Parties shall be automatically
released and discharged from its obligations and liabilities to
such Party under this Agreement, the Funds Transfer Agreement and
any agreement referred to in Clause 8.8.1(c).
Each Party shall promptly at it own cost and expense execute and
deliver all agreements and other documentation and do all such
other acts, matters and things as may be necessary to confirm
such cessation, release and discharge.
8.10 Withdrawal as a Party: If a Party (the "Withdrawing Party")
shall apply on three occasions to be admitted as a Pool Member
pursuant to this Clause 8 and on each such occasion it is not so
admitted by reason of its failure to fulfil the relevant Pool
Membership Conditions then with effect from the date the
Withdrawing Party is deemed to receive notification from the
Executive Committee pursuant to Clause 75 that it has failed for
the third time to fulfil such conditions, without prejudice to
Clause 66.7 and its accrued rights and liabilities, and its
rights and liabilities which may accrue in relation to the period
during which it was a Party, under any agreement entered into
pursuant to this Agreement (whether by or on behalf of the
Withdrawing Party) and notified to it for the purposes of this
Clause 8.10 by the Executive Committee prior to the date of its
cessation as a Party:
8.10.1 the Withdrawing Party shall automatically cease to be a
Party and shall be automatically released and discharged from all
its obligations and liabilities under this Agreement and any such
agreement;
8.10.2 each of the other Parties shall be automatically
released and discharged form its obligations and liabilities to
the Withdrawing Party under this Agreement and any such
agreement; and
8.10.3 each Party shall promptly, at the cost and expense of
the Withdrawing Party, execute and deliver all agreements and
other documentation and do all such other acts, matters and
things as may be necessary to confirm such cessation, release and
discharge.
8.11 External Pool Members: A person who has been admitted as an
External Pool Member shall immediately cease to be a Pool Member
(such cessation to be without prejudice to Clause 66.7) upon
either:
8.11.1 all of its rights under an Interconnection Agreement to
use the relevant External Interconnection(s) for taking or
delivering electricity from or to the NGC Transmission System
having permanently ceased; or
8.11.2 the relevant External Interconnection(s) permanently
ceasing to be connected to the NGC Transmission System.
8.12 Change of capacities: Any Pool Member may, upon application
to the Executive Committee and satisfaction those of the Pool
Membership conditions relevant to its new capacity and such other
conditions (if any) as the Executive Committee may reasonably
require, change the capacity(ies) in which it participates as a
Pool Member and any Pool Member who acquires an additional
capacity in which it participates as a Pool Member shall be
deemed to have been admitted as a new Pool Member pursuant to
Clause 8.2 in that additional capacity.
8.13 Saving: The Executive Committee shall have the right to
waive compliance by a Party with all or any of the Pool
Membership Conditions either absolutely or on terms if, in the
opinion of the Executive Committee, this is necessary to ensure
or help ensure that the Settlement process operates efficiently
or that the interests of other Pool Members are safeguarded.
9 GENERAL MEETINGS
9.1 Annual general meeting: Once in, and no later than 31st
March of, each year Pool Members shall hold a general meeting as
their annual general meeting in addition to any other meeting of
Pool Members in that year, and notices calling such general
meeting shall specify it as the annual general meeting. At each
annual general meeting the Pool Members shall be required to
consider and, where appropriate, resolve upon the following,
namely:
9.1.1 a report prepared by the Executive Committee on the
Settlement System and its operation during the immediately
preceding year, which report shall include:
(a) a review of the operation of the Settlement System, the
Charging Procedure, the PFA Accounting Procedure and the Funds
Transfer System during the immediately preceding year;
(b) a report on the progress of all Works Programmes then
current and of all changes to the operation of the Settlement
System, the Charging Procedure, the PFA Accounting Procedure, the
Funds Transfer System, all revisions to this Agreement and all
enhancements, improvements and modifications of or to the
Specification, the Hardware or the Software, in each case which
have been undertaken pursuant to this Agreement;
(c) a review of performance over the immediately preceding year
against the business plan referred to in Clause 9.1.6; and
(d) such other information or matters as the Executive Committee
shall consider appropriate (including any proposed revision to
this Agreement);
9.1.2 a report prepared by the Pool Auditor on the Settlement
System and its operation during the immediately preceding year,
which report shall include:
(a) a summary of the audits, reviews, tests and/or checks
referred to in Part IX carried out by the Pool Auditor during
such immediately preceding year;
(b) any recommendation which the Pool Auditor wishes to make
regarding the operation of the Settlement System, the Charging
Procedure, the PFA Accounting Procedure, the ASP Accounting
Procedure and the Funds Transfer System; and
(c) such other information or matters which the Executive
Committee may reasonably require or the Pool Auditor shall
consider appropriate;
9.1.3 [Not used]
9.1.4 the appointment of Committee Members pursuant to Clause
15 (where appropriate, in separate class meetings of Pool
Members);
9.1.5 such matters as any Pool Member present in person may
wish to raise at such meeting, notice of which has been given to
the Secretary no later than seven days before the date of such
meeting, it being acknowledged and agreed that failure by a Pool
Member so to notify shall not prejudice the right of any Pool
Member to ask questions at such meeting on any matter then before
such meeting;
9.1.6 a business plan prepared by the Executive Committee for
the then current year and the next following four years (or such
shorter period as the Pool Members in general meeting shall from
time to time determine) on the Settlement System and the Funds
Transfer System and their operation and in relation to all other
matters which are the subject of this Agreement;
9.1.7 the election of the Pool Chairman pursuant to Clause
16; and
9.1.8 such other matters as the Executive Committee sees fit
to propose and of which notice has been given in accordance with
Clause 9.4.1.
9.2 General meetings: All general meetings of Pool Members
other than annual general meetings shall be extraordinary general
meetings.
9.3 Calling meetings: All general meetings of Pool Members
shall be called by 14 days' notice in writing at the least,
provided that a general meeting of Pool Members shall,
notwithstanding that it is called by shorter notice, be deemed to
have been duly called if it is so agreed by a majority in number
of the Pool Members having a right to attend and vote at such
meeting, being a majority in number together holding not less
than 95 per cent of the Total Votes.
9.4 Convening meetings:
9.4.1 An annual general meeting shall be convened by the
Secretary on the instructions of the Executive Committee and any
notice convening such a meeting shall set out or append details
of any such matters as are referred to in Clause 9.1.8 and shall
be accompanied by a copy of the reports referred to in Clauses
9.1.1 and 9.1.2 and of the business plan referred to in Clause
9.1.6. The Secretary shall use its reasonable endeavours to
notify the Pool Chairman and Pool Members in advance of the
relevant annual general meeting of any such matters referred to
in Clause 9.1.8 of which the Secretary has received notice in
accordance with that Clause.
9.4.2 Extraordinary general meetings shall be convened:
(a) by the Secretary on the instructions of the Executive
Committee or of any one or more Committee Members pursuant to
Clause 13.4; or
(b) by the Executive Committee, forthwith upon receipt of a Pool
Members' requisition being a requisition of Pool Members holding
together at the date of the deposit of the requisition not less
than two percent of the Total Votes of all Pool Members; or
(c) by the Secretary on the instructions of the Pool Chairman.
9.4.3 A Pool Members' requisition shall state the objects of
the meeting and must be signed by or on behalf of the
requisitionists and deposited at the office of the Secretary, and
may consist of several documents in like form each signed by one
or more requisitionists. If the Executive Committee does not
within 21 days from the date of the deposit of the requisition
proceed duly to convene an extraordinary general meeting for a
date not later than two months after the said date of deposit,
the requisitionists may themselves convene a meeting, but any
meeting so convened shall not be held after the expiration of
three months from such date. A meeting convened under this
Clause 9.4 by requisitionists shall be convened in the same
manner, as nearly as possible, as that in which meetings are to
be convened by the Executive Committee.
9.5 Notice of general meetings: Any notice convening any
general meeting of Pool Members shall be exclusive of the day on
which it is served or deemed to be served and of the day for
which it is given, and shall specify the place, the day and the
hour of the meeting and the general nature of the business of
such meeting and shall be given to all Parties, all Committee
Members, the Pool Chairman, the Chief Executive (if any), the
Pool Auditor and the Director. The accidental omission to give
notice of a meeting to, or the non-receipt of notice of a meeting
by, any person entitled to receive notice shall not invalidate
the proceedings at the meeting. In every such notice there shall
appear with reasonable prominence a statement that a Pool Member
entitled to attend and vote is entitled to appoint a proxy to
attend, speak and (subject to Clause 12.1) vote in its place and
that a proxy need not also be a Pool Member.
9.6 Quarterly meetings:
9.6.1 The Secretary shall, on the instructions of the
Executive Committee, convene meetings of Pool Members not less
frequently than once in each Quarter to discuss reports prepared
by the Executive Committee pursuant to Clause 24.2.14 and any
other matter of interest which is the subject of this Agreement.
Unless the Executive Committee otherwise determines, no such
meeting shall be convened for the Quarter in which any annual
general meeting is to take place.
9.6.2 The provisions of Clauses 9.3 and 9.5 shall apply,
mutatis mutandis, for the purposes of the notice and the calling
of quarterly meetings pursuant to Clause 9.6.1 as if such
meetings were general meetings of Pool Members and the provisions
of Clause 10.9 shall also apply mutatis mutandis. Nothing in
this Agreement shall prevent a quarterly meeting being convened
also has an extraordinary general meeting.
10 PROCEEDINGS AT GENERAL MEETINGS
10.1 General: Save as provided in Clause 12.8 and Part IV, all
business of Pool Members shall be transacted at general meetings
of Pool Members, the proceedings for the conduct of which are set
out in this Clause 10.
10.2 Quorum: No business shall be transacted at any general
meeting of Pool Members unless a quorum of Pool Members is
present at the time when the meeting proceeds to business. Save
as herein otherwise provided, a quorum shall be Pool Members
present in person representing:
10.2.1 50 per cent or more of the aggregate number of Weighted
Votes to which all Generators are entitled under Clause 11.21.;
and
10.2.2 50 percent of more of the aggregate number of Weighted
Votes to which all Suppliers are entitled under Clause 11.2.2.
10.3 Lack of Quorum: If within half an hour from the time
appointed for the general meeting a quorum is not present, the
meeting shall stand adjourned to the same day in the next week,
at the same time and place or to such other day and at such other
time and place as the Executive Committee may determine and, if
at the adjourned meeting a quorum is not present within half an
hour from the time appointed for the meeting, the Pool Member(s)
present shall be a quorum.
10.4 Chairman: The Pool Chairman shall preside as chairman at
every general meeting and separate general meeting of Pool
Members (other than one convened to consider his removal) or, if
there is no Pool Chairman or if he shall not be present within 15
minutes after the time appointed for the holding of the meeting
or is unwilling to act or if the relevant meeting has been
convened to consider the removal of the Pool Chairman, the Chief
Executive (if any) shall preside as chairman or, if the Chief
Executive shall not be present or is unwilling to act or if the
relevant meeting has been convened to consider the removal of the
Chief Executive, the Pool Members present shall choose one of
their number to be chairman of the meeting.
10.5 Adjournments: The chairman of the meeting may, with the
consent of any general meeting Pool Members at which a quorum is
present (and shall if so directed by the meeting) adjourn the
meeting from time to time and from place to place, but no
business shall be transacted at any adjourned meeting other than
the business left unfinished at the meeting from which the
adjournment took place. When a meeting is adjourned for 30 days
or more, notice of the adjourned meeting shall be given as in the
case of an original meeting. Save as aforesaid, it shall not be
necessary to give any notice of an adjournment or of the business
to be transacted at an adjourned meeting.
10.6 Demand for a poll: At any general meeting of Pool Members a
resolution put to the vote of the meeting shall be decided on a
show of hands unless a poll is (before or on the declaration of
the result of the show of hands) demanded:
10.6.1 by the chairman of the meeting; or
10.6.2 by at least two Pool Members present in person or by
proxy; or
10.6.3 by any Pool Member present in person or by proxy and
holding not less than two per cent of the Total Votes of all Pool
Members.
10.7 Timing of poll: Except as hereinafter provided in this
Clause 10.7, if a poll is duly demanded it shall be taken in such
manner as the chairman of the meeting directs, and the result of
the poll shall be deemed to be the resolution of the meeting at
which the poll was demanded. A poll demanded on the election of
the chairman of the meeting or on a question of adjournment shall
be taken forthwith. A poll demanded on any other question shall
be taken at such time as the chairman of the meeting directs, and
any business other than that upon which a poll has been demanded
may be proceeded with pending the taking of the poll.
10.8 No casting vote: In the case of an equality of votes,
whether on a show of hands or on a poll, the chairman of the
meeting at which the show of hands takes place or at which the
poll is demanded, shall not be entitled to a second or casting
vote.
10.9 Representation of non-Pool Members: Each of the Chief
Executive (if any) or his duly appointed representative, the
Settlement System Administrator, the Pool Funds Administrator,
the Grid Operator and the Ancillary Services Provider shall be
obliged to attend, and each other Party, each Committee Member,
the Pool Auditor and the Director (or its or his duly appointed
representative) shall have the right to attend, at each general
meeting of Pool Members, and each of them shall have the right to
speak (but not to vote) thereat.
10.10 Minutes: The Secretary shall prepare minutes of all
general meetings of Pool Members and shall circulate copies
thereof to all Parties , each Committee Member, the Pool
Chairman, the Chief Executive (if any), the Pool Auditor and the
Director as soon as practicable (and in any event within ten
working days) after the relevant meeting has been held.
11 VOTING
11.1 Membership Votes: Each Pool Member shall be entitled to one
vote by reason of its Pool Membership (its "Membership Vote").
11.2 Weighted Votes: Subject as provided in Clauses 11.3 and
11.4, in respect of any Quarter:
11.2.1 each Pool Member which is a Generator shall be entitled
in that capacity to one vote for each GWh of Genset Metered
Generation of all its Allocated Generating Units for all
Settlement Periods falling in the Votes Calculation Period
relative to such Quarter, as determined from the final run of
Settlement (as referred to in paragraph D(3) of the Preamble to
Schedule 9) for each such Settlement Period,
11.2.2 each Pool Member which is a Supplier shall be entitled
in that capacity to such number of votes as is equal to the total
GWh of Consumer Metered Demand taken by that Pool Member in all
Settlement Periods falling in the Votes Calculation Period
relative to such Quarter, as determined from the final run of
Settlement (as referred to in paragraph D(3) of the Preamble to
Schedule 9) for each such Settlement Period,
each such vote a "Weighted Vote".
For the purposes of this Clause 11.2:
(A) a Generating Unit shall be an Allocated Generating Unit of a
Pool Member (in this Clause, the "Identified Pool Member") if it
belongs to the Identified Pool Member as of the date on which the
Executive Committee calculates the Weighted Votes of Pool Members
for the relevant Quarter pursuant to Clause 11.3.2. If at any
time during such Quarter an Allocated Generating Unit shall
belong to another Pool Member (in this Clause, the "Transferee
Pool Member"), the Weighted Votes attributed to the Identified
Pool Member for such Quarter by reason of the Allocated
Generating Unit belong to it shall be transferred to the
Transferee Pool Member as of the date on which such Allocated
Generating Unit first belongs to the Transferee Pool Member (and
the Identified Pool Member and the Transferee Pool Member shall
jointly notify the Executive Committee in writing of such date in
good time before its occurrence);
(B) a Generating Unit shall belong to a Pool Member if it is
owned by that Pool Member and not leased to another person or if
it is leased by that Pool Member from another person;
(C) a Pool Member shall notify the Executive Committee promptly
on request of its Allocated Generating Units and the Executive
Committee and each other Party may rely on the information in
that notification and in any notification under paragraph (A)
above without further enquiry or need to verify that information;
(D) in determining the meaning of "good time" for the purposes
of paragraph (A) above one factor to be taken into account is
that the Settlement System Administrator must be allowed
sufficient time to effect the necessary changes in Settlement
associated with the transfer of the relevant Allocated Generating
Unit; and
(E) the Executive Committee may, upon application of any Pool
Member involved in any transfer of assets between Pool Members
during any Quarter, adjust as between the Pool Members involved
in such transfer, the number of Points and/or Weighted Votes to
which they in their capacities as Suppliers are entitled in
respect of the remaining part of that Quarter and/or one or both
of the two immediately succeeding Quarters if, in the opinion of
the Executive Committee, such adjustment would help accommodate
the consequences of such a transfer and not prejudice the
interests of any other Pool Member in any material respect.
11.3 Calculation of Weighted Votes: Subject as provided in
Clause 11.4:
11.3.1 New Pool Members:
(a) until the third Quarter Day next falling after the date of
its admission as a Pool Member, any Party who is admitted as a
Pool Member pursuant to Clause 8.2 shall have that number of
Weighted Votes as fall to be determined in accordance with the
following provisions of this Clause 11.3.1. Thereafter, such
Pool Member's Weighted Votes shall be calculated in accordance
with Clause 11.2;
(b) until the third Quarter Day next falling after the date of
admission of the relevant Pool Member as a Pool Member such Pool
Member shall have that number of Weighted Votes as are accorded
to it upon its admission as a Pool Member by the Executive
Committee (which the Executive Committee shall do prior to the
date of such admission) who shall have regard to the factors
listed in paragraph (c), (d) and/or (as the case may be) (e)
below or as are determined by the Director in accordance with
Clause 11.5;
(c) the factors referred to in paragraph (b) shall in the case
of a Generator include:
(i) the Registered Capacity of all Generating Units of such
Generator;
(ii) the Executive Committee's assessment of the likely
availability of all such Generating Units for the period from the
date of admission of such Pool Member as a Pool Member to the
third Quarter Day next falling after such date, having regard to
the registered Generation Scheduling and Despatch Parameters or
(as the case may be) Generation Trading Block Scheduling and
Despatch Parameters for such Generating Units;
(iii) the Executive Committee's assessment of the likely
output of all such Generating Units during such period having
regard to the output of Generating Units which in the Executive
Committee's opinion most nearly correspond to such Generating
Units;
(iv) the Executive Committee's assessment of the likely daily
station load associated with the Power Stations of which such
Generating Units form part during such period; and
(v) where a Generating Unit of an existing Pool Member is
transferred to, and then belongs to, such Generator at or soon
after the time of such Generator's admission as a Pool Member,
the Weighted Votes most recently attributed to the existing Pool
Member by reason of that Generating Unit shall be attributed to
such Generator as if such Generator were a Transferee Pool Member
under the provisions of paragraphs (A) and (B) of Clause 11.2;
(d) the factors referred to in paragraph (b) above shall in the
case of a Supplier be the total GWh which would be supplied by
the relevant Supplier in the period from the date of admission of
such Pool Member as a Pool Member to the third Quarter Day next
falling after such date on the basis of its Customers' metered
demand or, where such metered information is not available, the
load profiles of its Customers used for the purposes of
estimating the consumption of Second Tier Customers; and
(e) the factors referred to in paragraph (b) above shall in the
case of an External Pool Member be whichever one or more of those
factors referred to in paragraph (c) above and those referred to
in paragraph (d) above as the Executive Committee considers to be
most readily applicable to the Generating Units (if any) of such
Pool Member and to the level of demand for Active Energy of that
Pool Member across the relevant External Interconnection but as
if the references to Customers in paragraph (d) were references
to that Pool Member's own requirements;
11.3.2 Calculation: On or prior to each Quarter Day the
Executive Committee shall, on the basis of information to be
supplied by the Settlement System Administrator in accordance
with Service Line 10 (Service to CEO and Pool Members), calculate
the number of Weighted Votes to which each Pool Member whose
Weighted Votes are to be calculated in accordance with Clause
11.2 is entitled in its capacity as a Generator or a Supplier for
the Following Quarter, and shall notify each Pool Member and the
Director in writing of the number of Weighted Votes of all Pool
Members in their respective capacities (whether calculated in
accordance with Clause 11.2 or 11.3.1). Subject to Clause 11.5,
the determination of the Executive Committee as to the number of
Weighted Votes of each Pool Member shall (in the absence of
manifest error) be final and binding for all purposes of this
Agreement;
11.3.3 Attribution. If a Pool Member shall receive one
Weighted Vote or no Weighted Votes by reason of the calculations
under Clause 11.2 or the foregoing provisions of this Clause
11.3, such Pool Member shall nevertheless be accorded two
Weighted Votes;
11.3.4 Rounding. In calculating Weighted Votes in accordance
with the provisions of Clause 11.2 and this Clause 11.3, the
total GWh for each Generator or (as the case may be) Supplier
shall be rounded up or down (.05 being rounded upwards) to the
nearest whole number; and
11.3.5 Additional capacity: For the purposes of Clause 11 any
Pool Member who acquires an additional capacity in which it
participates as a Pool Member shall be deemed to have been
admitted as a new Pool Member pursuant to Clause 8.2 in that
additional capacity and until the third Quarter Day next falling
after the date such Pool Member's application to the Executive
Committee pursuant to Clause 8.12 is approved, it shall have that
number of Weighted Votes in that additional capacity as fall to
be determined in accordance with the provisions of Clause 11.3.1.
Thereafter, such Pool Member's Weighted Votes shall be calculated
in accordance with Clause 11.2.
11.4 Restrictions on Weighted Votes:
11.4.1 Generators: At no time shall the aggregate number of
Weighted Votes to which both Central Power Limited and
Peterborough Power Limited (together with their respective
affiliates and related undertakings) are entitled in their
capacity as Generators under the foregoing provisions of this
Clause 11 exceed 10 per cent of the aggregate number of Weighted
Votes to which all Generators are entitled under the foregoing
provisions of this Clause 11 and the aggregate number of Weighted
Votes to which both such companies are entitled in that capacity
shall be limited accordingly and the number of Weighted Votes of
each such company in its capacity as a Generator shall be limited
accordingly and the number of Weighted Votes of each such company
in its capacity as a Generator shall, if necessary, be pro rata
reduced;
11.4.2 Suppliers: At no time shall the aggregate number of
Weight Votes to which both National Power PLC and PowerGen plc
(together with their respective affiliates and related
undertakings) are entitled in their capacity as Suppliers under
the foregoing provisions of this Clause 11 exceed 10 per cent of
the aggregate number of Weighted Votes to which all Suppliers are
entitled under the foregoing provisions of this Clause 11 and the
aggregate number of Weighted Votes to which both such companies
are entitled in that capacity shall be limited accordingly and
the number of Weighted Votes of each such company in its capacity
as a Supplier shall, if necessary, be pro rata reduced; and
11.4.3 Cap on Weighted Votes:
(a) At no time shall the aggregate number of Weighted Votes to
which a Generator and its affiliates and related undertakings
which are also Generators are entitled in their capacity as
Generators under the foregoing provisions of this Clause 11
exceed 44 percent of the aggregate number of Weighted Votes to
which all Generators are entitled under the foregoing provisions
of this Clause 11 (after taking account of any limitation
required under Clause 11.4.1) and the aggregate number of
Weighted Votes to which such Generator and all such affiliates
and related undertakings are entitled in that capacity shall be
limited accordingly and the number of Weighted Votes of such
Generator and all such affiliates and related undertakings in
their capacity as Generators shall, if necessary, be pro rata
reduced.
(b) At no time shall the aggregate number of Weighted Votes to
which a Supplier and its affiliates and related undertakings
which are also Suppliers are entitled in their capacity as
Suppliers under the foregoing provisions of this Clause 11 exceed
44 percent of the aggregate number of Weighted Votes to which
all Suppliers are entitled under the foregoing provisions of this
Clause 11 (after taking account of any limitation required under
Clause 11.4.2) and the aggregate number of Weighted Votes to
which such Supplier and all such affiliates and related
undertakings are entitled in that capacity shall be limited
accordingly and the number of Weighted Votes of such Supplier and
all such affiliates and related undertakings in their capacity as
Suppliers shall, if necessary, be pro rata reduced.
(c) If any limitation or reduction pursuant to paragraph (a) or
(b) above would otherwise result in a Generator or (as the case
may be) a Supplier being accorded other than a whole number of
Weighted Votes, the Weighted Votes actually accorded to such
person shall be rounded down to the nearest whole number.
11.4.4 Interim arrangement: The Parties acknowledge that the
application of Clauses 11.4.1 and 11.4.2 has been limited to
named companies pending resolution of how (if at all)
restrictions on Weighted Votes should apply to Generators with
second tier supply businesses and to Suppliers with an interest
in a generation business. The Parties agree to use all
reasonable endeavours to reach an agreed resolution to this issue
and to amend this Agreement to give effect thereto no later than
31st March, 1994 (or such later date as the Executive Committee
may decide).
11.5 Reference to the Director: If any person as is referred to
in Clause 11.3.1(a) shall dispute the calculation of or the
number of Weighted Votes accorded to it in accordance with Clause
11.3.1, such person may refer such dispute to the Director for
determination, whose determination as to the calculation of or
the number of Weighted Votes to which such person shall be
entitled shall be final and binding for all purposes of this
Agreement.
11.6 Alteration of Weighted Votes: The Director may at any time
by notice to the Executive Committee alter the calculation of
Weighted Votes set out in Clauses 11.2.1 and 11.2.2 and/or the
restrictions on Weighted Votes set out in Clause 11.4 if in his
opinion such alteration is required to achieve fair
representation for all Pool Members.
11.7 Total Votes: Each Pool Member shall be entitled to that
number of votes ("Total Votes") calculated in accordance with the
following formulae:
TV = X + Y
where:
X = A x B
2 x C
Y =.A x D
2 x E
and where
TV = the number of Total Votes (rounded up or down, 0.5 being
rounded up) to which such Pool Member shall be entitled
A = the greater of C and E and, Where C is equal to E, C
B = the number of Weighted Votes for the time being of such Pool
Member in its capacity as a Generator
C = the number of Weighted Votes for the time being of all Pool
Members which are Generators, in their capacity as such (ignoring
those Generators whose voting rights have been suspended pursuant
to this Agreement)
D = the number of Weighted Votes for the time being of such Pool
Member in its capacity as a Supplier
E = the number of Weighted Votes for the time being of such Pool
Members which are Suppliers, in their capacity as such (ignoring
those Suppliers whose voting rights have been suspended pursuant
to this Agreement).
11.8 Calculation of Total Votes: On or prior to:
11.8.1 each Quarter Day;
11.8.2 each date upon which a New Party is admitted as a Pool
Member;
11.8.3 each date upon which a Pool Member's voting rights have
been suspended or reinstated pursuant to this Agreement; and
11.8.4 each date upon which a Pool Member ceases to be a
Party,
the Executive Committee shall calculate for the Following Quarter
or (as the case may be) the remainder of the then current Quarter
the number of Total Votes to which each Pool Member is for the
time being entitled, and shall notify each Pool Member and the
Director in writing of the number of Total Votes of each of the
Pool Members. The determination of the Executive Committee as to
the number of Total Votes of each Pool Member shall (in the
absence of manifest error) be final and binding for all purposes
of this Agreement.
11.9 Records: The Executive Committee shall maintain, and retain
for a period of not less than eight years, a register recording
the Weighted Votes (as a Generator and as a Supplier) and Total
Votes of each Pool Member, which register shall be open for
inspection by any Party at the office of the Secretary during
normal business hours.
11.10 Voting on a show of hands: On a show of hands every
Pool Member present in person shall have only its Membership
Vote.
11.11 Voting on a poll: On a poll every Pool Member shall
have only its Total Votes. On a poll votes may be given either
personally or by proxy.
11.12 Objections: No objection shall be raised to the
qualification of any voter except at the meeting or adjourned
meeting at which the vote objected to is given or tendered, and
every vote not disallowed at such meeting shall be valid for all
purposes. Any such objection made in due time shall be referred
to the chairman of the meeting whose decision shall be final and
conclusive.
12 PROXIES
12.1 Authority: Any Pool Member entitled to attend and vote at
any general meeting of Pool Members shall be entitled to appoint
another person (whether a Pool Member or not) as its proxy to
attend, speak and vote in its place, save that a proxy shall not
be entitled to vote except on a poll.
12.2 Authentication of proxy: The instrument appointing a proxy
shall be in writing either under seal or under the hand of an
officer or attorney duly authorised. A proxy need not be a Pool
Member.
12.3 Deposit of proxy: The instrument appointing a proxy and the
power of attorney or other authority, if any, under which it is
signed or a certified copy of that power or authority shall be
deposited at the office of the Secretary or at such other place
within the United Kingdom as specified for that purpose in the
notice convening the relevant general meeting of Pool Members,
not less than 48 hours before the time for holding the meeting or
adjourned meeting, at which the person named in the instrument
proposes to vote, or, in the case of a poll, not less than 24
hours before the time appointed for the taking of the poll, and
in default the instrument of proxy shall not be treated as valid.
12.4 Form of proxy (1): An instrument appointing a proxy shall
be in the following form or a form as near thereto as
circumstances admit:
"POOLING AND SETTLEMENT AGREEMENT FOR THE ELECTRICITY INDUSTRY IN
ENGLAND AND WALES dated 30th March, 1990
We, _________ , of _________ , being a Pool Member (as defined in
the above-mentioned Agreement), hereby appoint ___________ of
_______ or, failing him, _________ of __________, as our proxy to
vote for us on our behalf at the [annual or extraordinary, as the
case may be] general meeting of Pool Members, to be held on the
______ day of ______ 19__ , and at any adjournment thereof.
Signed this ______ day of ______ 19___.."
12.5 Form of proxy (2): Where it is desired to afford Pool
Members an opportunity of voting for or against a resolution the
instrument appointing a proxy shall be in the following form or a
form as near thereto as circumstances admit:
"POOLING AND SETTLEMENT AGREEMENT FOR THE ELECTRICITY INDUSTRY IN
ENGLAND AND WALES dated 30th March, 1990
We, _________ , of _________ , being a Pool Member (as defined in
the above-mentioned Agreement), hereby appoint ___________ of
_______ or, failing him, _________ of __________, as our proxy to
vote for us on our behalf at the [annual or extraordinary, as the
case may be] general meeting of Pool Members, to be held on the
______ day of ______ 19__ , and at any adjournment thereof.
Signed this ______ day of ______ 19___.."
This form is to be used *in favour of the resolution.
against
Unless otherwise instructed, the proxy will vote as he
thinks fit.
*Strike out whichever is not desired."
12.6 Authority to demand a poll: The instrument appointing a
proxy shall be deemed to confer authority to demand or join in
demanding a poll.
12.7 Proxy valid: A vote given in accordance with the terms of
an instrument of proxy shall be valid notwithstanding the
previous revocation of the proxy or of the authority under which
the proxy was executed, provided that no intimation in writing of
such revocation shall have been received by the Secretary at his
office before the commencement of the meeting or adjourned
meeting at which the proxy is used.
12.8 Resolution in writing: A resolution in writing signed by
all the Pool Members for the time being entitled to receive
notice of and to attend and vote at general meetings of Pool
Members (or by their duly authorised representatives) shall be as
valid and effective as if the same had been passed at a general
meeting of Pool Members duly convened and held and may consist of
several instruments in like form and executed by or on behalf of
one or more Pool Members.
12.9 Corporations acting by representatives at meetings: Any
company, corporation, partnership, firm, joint venture, trust,
association or other organisation which is a Pool Member may by
resolution of its directors to other governing body authorise
such person as it thinks fit to act as it representative at any
general meeting of Pool Members, and references in this Agreement
to a Pool Member acting in person (howsoever expressed), shall be
deemed to include Pool Members acting by their duly authorised
representatives.
13 MATTERS RESERVED TO THE GENERAL MEETING: CLASS RIGHTS
13.1 Matters reserved generally:
13.1.1 As between the Pool Members each of the matters
referred to in Clause 13.1.2 shall require the prior approval of
Pool Members in general meeting before effect is given to the
same, such approval to be (subject as provided in Sections 15, 16
and 17 of Schedule 4) by resolution of Pool Members passed by not
less than 65 per cent of the Membership Votes or (as the case may
be) Total Votes of such Pool Members as (being entitled to do so)
vote in person or by proxy at a general meeting of Pool Members
of which notice specifying the intention to propose the
resolution has been duly given.
13.1.2 The matters referred to in Clause 13.1.1 are:
(a) the removal of the Settlement System Administrator;
(b) the appointment and removal of the Pool Auditor;
(c) any amendment to or variation of this Agreement (other than
any amendment or variation referred to in Clause 13.2.1, 13.2.2
or 13.2.3 or any amendment of or variation to schedule 9
(including any amendment thereto made pursuant to Clause 56.2 or
to Schedule 15);
(d) the approval pursuant to Clause 5.8 of any Recommendation
and pursuant to Clause 5.11 of any Works Programme and any
approval pursuant to Clause 5.14;
(e) the removal of the Pool Chairman; and
(f) such other matters (not being matters referred to in Clause
9.1.8) which are otherwise designated under this Agreement for
reference to the Pool Members in general meeting.
13.2 Matters reserved to particular classes of Pool Members:
13.2.1 As between the Pool Members any amendment to or
variation of this Clause 13.2 shall require the prior approval of
the Generators in separate general meeting.
13.2.2 As between the Pool Members each of the following
matters shall require the prior approval of the Suppliers in
separate general meeting:
(a) any change prior to 1st April, 1998 to the standards of
accuracy of Metering Equipment required for Second Tier Customers
up to (and including) 100kW or required for No-Pooled Generators;
(b) any amendment to or variation of Part XI and/or Schedule 18;
and
(c) any amendment to or variation of this Clause 13.2.
13.2.3 As between the Pool Members any amendment to or
variation of Clause 10.2, 10.6, 13.4, 13.5, 15.2, 15.3, 15.4,
15.5, 15.8, 16.2, 19.2, 22 or 83, Schedule 14 or this Clause 13.2
shall require the approval both of the Generators in separate
general meeting and of the Suppliers in separate general meeting.
13.2.4 To every separate general meeting referred to in this
Clause 13.2 the provisions of this Part III relating to general
meetings of Pool Members (other than Clause 10.9, save in respect
of the attendance by the Pool Auditor or the Director or its or
his duly appointed representative) shall apply mutatis mutandis
but so that:
(a) in the case of the Generators, the necessary quorum shall be
two Pool Members of that class;
(b) in the case of the Suppliers, the necessary quorum shall be
eight Pool Members of that class;
(c) the reference in Clause 10.6.3 to Total Votes shall be
substituted by a reference to Weighted Votes; and
(d) notice of any such separate general meeting need be given
only to those entitled to attend the same,
and any resolution put to any such separate general meeting
shall, to be passed, require (in the case of the Generators) 75
per cent and (in the case of the Suppliers) a simple majority of
the total Membership Votes or (as the case may be) Weighted Votes
of such Pool Members as (being entitled to do so) vote in person
or by proxy at such separate general meeting of which notice
specifying the intention to propose the resolution has been duly
given.
13.2A As between the Pool Members any amendment to or
variation of Schedule 22 shall require the approval of the Public
Electricity Suppliers in separate general meeting in accordance
with the provisions of that Schedule.
13.3 Provisions cumulative: The provisions of Clauses 13.1 and
13.2 are cumulative and not exclusive one of the other.
13.4 Executive Committee's referral: In the event of receipt by
the Secretary from one or more of the Committee Members of a
request that any matter resolved upon on a poll by the Executive
Committee (or upon which it has been unable or has refused to
resolve other than where the taking of a vote has been deferred
pursuant to Clause 22.1) be remitted to the Pool Members in
general meeting, such request having been received no later than
five working days after the date on which the results of such
poll were notified to Committee Members (exclusive of the date on
which notice was given) (or, as the case may be, the date of its
failure or refusal so to resolve), the matter the subject of the
relevant resolution shall be remitted to the Pool Members in
general meeting and, pending the decision of Pool Members in
general meeting, such resolution shall not have effect. The
provisions of this Clause 13.4 are subject to the provisions of
Clause 61.9.
13.5 Dissentient Pool Member's right of appeal:
13.5.1 Any Pool Member who:
(a).voted against a resolution passed or in favour of a
resolution not passed by Pool Members in general meeting; or
(b) voted against a resolution passed or in favour of a
resolution not passed by Generators or (as the case may be)
Suppliers in separate general meeting; or
(c) is directly affected by Pool Creditors passing or failing to
pass a resolution of Pool Creditors (but only where such
resolution does not concern the enforcement or non-enforcement of
any payment obligation),
and each Externally Interconnected Party (not being a Pool
Member) (each such Pool Member a "Dissentient Pool Member", which
expression shall include each such Externally Interconnected
Party) shall be entitled within ten working days after the date
of such resolution to apply in writing to the Director seeking a
ruling that the relevant resolution shall or shall not have
effect on the grounds that either:
(i) the interests of a group of Pool Members (including the
Dissentient Pool Member) or of the Dissentient Pool Member under
this Agreement have been or are or will be unfairly prejudiced by
the passing of or the failure to pass such resolution; or
(ii) such resolution will breach, or will cause the Dissentient
Pool Member to be in breach of, one or more provisions of this
Agreement or of its License or of the Act.
Any such application shall give detailed reasons and evidence in
support and shall be copied to the Executive Committee. The
Dissentient Pool Member shall be entitled to mark all or any part
of such application as confidential and the Executive Committee
shall give such weight as it sees fit to such marking in the
copying of such application to those persons whom it is obliged
to copy such application. The Executive Committee shall promptly
notify all other Pool Members, each Externally Interconnected
Party (not being a Pool Member), the Pool Chairman, the
Settlement System Administrator and the Pool Funds Administrator
of receipt of such application. At the same time as the
Executive Committee shall notify all such other Pool Members,
each Externally Interconnected Party (not being a Pool Member),
the Pool Chairman, the Settlement System Administrator and the
Pool Funds Administrator of such receipt, the Executive Committee
shall send each of them a copy of the relevant application
(amended, if appropriate, to take account of any such marking
where the Executive Committee shall have seen fit to do so). The
Executive Committee, each Pool Member, each Externally
Interconnected Party (not being a Pool Member), the Pool
Chairman, the Settlement System Administrator and the Pool Funds
Administrator and (if invited by the Director) the Pool Auditor
shall each be entitled to make representations to the Director.
If the Pool Auditor shall be so invited to make any such
representations, the Executive Committee will provide it with a
copy of the relevant application (amended, if appropriate, as
aforesaid).
13.5.2 Any determination of the Director in respect of any
such application as is referred to in Clause 13.5.1 shall be
final and binding. Pending any determination of the Director in
respect of any such application, the relevant resolution (if
passed) shall not have effect provided that, if the Director
shall decline to accept a reference or to make a determination
(in either case, for whatsoever reason), such resolution shall
take effect from the date that the Director notifies the
Executive Committee that he declines to accept the reference or
to make the determination.
13.5.3 The Parties acknowledge and agree that the satisfaction
of either of the grounds referred to in Clause 13.5.1(i) or(ii)
shall not of itself entitle the Dissentient Pool Member to a
determination by the Director in its favour.
PART IV
THE EXECUTIVE COMMITTEE
14 ESTABLISHMENT OF THE EXECUTIVE COMMITTEE
Establishment: The Pool Members hereby establish the Executive
Committee upon the terms and subject to the conditions of this
Agreement.
15 MEMBERSHIP OF THE EXECUTIVE COMMITTEE
15.1 Membership: Committee Members shall be appointed and
removed in accordance with the following provisions of this
Clause 15.
15.2 Right to appoint (Generators):
15.2.1 Subject to Clauses 15.6, 15.7 and 15.8, Generators
shall together have the right to appoint not more than five
Committee Members, such appointments to be made in accordance
with the following provisions of this Clause 15.2.
15.2.2 No later than seven days before each annual general
meeting of Pool Members or, failing election at such meeting,
seven days before an extraordinary general meeting convened for
such purpose each Generator shall be entitled, by notice to the
Executive Committee, to propose one person (a "Nominee") to be a
Committee Member. Any such proposal to be valid shall be
accompanied by a written statement from the Nominee stating that
he is aware of the proposal and would be prepared to serve as a
Committee Member if elected. As soon as practicable after such
seventh day (and in any event before the date of the annual
general meeting or, as the case may be, extraordinary general
meeting) all Executive Committee shall circulate (or cause to be
circulated) to all Generators a list of all the names of the
Nominees and of the Generators who proposed them. Such list
shall also be circulated at the annual general meeting or, as the
case may be, extraordinary general meeting to all Generators
present in person or by proxy.
15.2.3 The term of office of Committee Members appointed by
Generators shall be from 1st April in the year of appointment to
31st March in the next following year provided that, if the
meeting at which any such Committee Member is appointed is held
after 1st April, his term of office shall commence from the time
of his appointment. A Committee Member whose term of office has
expired or is to expire shall be eligible for re-election.
15.2.4 At each annual general meeting or extraordinary general
meeting of Pool Members resolutions shall be put to the
Generators for the election by them of Committee Members from the
list of Nominees referred to in Clause 15.2.2. The election
shall be conducted in such manner as shall give effect to the
following:
(a) on the first round of voting:
(i) each Generator (other than Central Power Limited or
Peterborough Power Limited) shall be entitled to vote;
(ii) each Generator shall have its Weighted Votes (disregarding
for this purpose the restrictions imposed by Clause 11.4.3(a));
and
(iii) the votes of a Generator and all of its affiliates and
related undertakings which are also Generators may only be cast
in favour of one Nominee,
and at the conclusion of the first round the three Nominees with
the highest number of Weighted Votes cast in their favour shall
be elected Committee Members;
(b) on the second round of voting:
(i) each Generator (not being (A) Central Power Limited or
Peterborough Power Limited, (B) a Generator which voted in favour
of one of the three Nominees referred to in paragraph (a) above
or (C) an affiliate or related undertaking of such Generator)
shall be entitled to vote; and
(ii) each Generator shall have its Weighted Votes (disregarding
for this purpose the restrictions imposed by Clause 11.4.3(a),
and at the conclusion of the second round the Nominee with the
highest number of Weighted Votes cast in its favour shall be
elected a Committee Member;
(c) on the third round of voting, each Small Generator which did
not vote in the first or second round of voting shall be entitled
to vote and at the conclusion of the third round the Nominee with
the highest number of votes cast in its favour shall be elected a
Committee Member; and
(d) if in any round of voting there is a tie between two or more
Nominees as to who should be elected a Committee Member, that
round of voting shall be reheld and, in the event of another tie,
the matter shall be resolved:
(i) in the case of a tie at any reheld first or second round of
voting, by lot held in such manner as the chairman of the meeting
shall decide; and
(ii) in the case of a tie at any reheld third round of voting, by
the casting vote of the Small Generator holding the largest
number of Weighted Votes (disregarding for this purpose the
restrictions imposed by Clause 11.4.3(a)) and entitled to vote in
such third round.
15.3 Right to remove (Generators):
15.3.1 A Committee Member appointed by Generators or any class
of Generators may be removed at any time by written notice of
removal given to that Committee Member (copies to the Executive
Committee) by or on behalf of that number of those Generators
who:
(a) voted in favour of his appointment;
(b) are Pool Members at such time; and
(c) (disregarding for this purpose the restrictions imposed by
Clause 11.4.3(a)) hold more Weighted Votes than the difference
between:
(i) the number of Weighted Votes cost in favour of that
Committee Member; and
(ii) the number of Weighted Votes cast in favour of the
candidate, in that round of voting, who received the next highest
number of Weighted Votes after the Committee Member being removed
(or, if there was no such candidate, zero).
15.3.2 If a Committee Member appointed by Generators is
removed or his office is vacated pursuant to Clause 21, a
separate general meeting of Generators shall be convened for the
purpose of appointing a substitute Committee Member. To such
separate general meeting the provisions of Clause 15.2 shall
apply mutatis mutandis but so that only those Generators which:
(a) are within the class of Generators entitled to vote in
respect of the appointment of the first-mentioned Committee
Member; and
(b) did not (when that first-mentioned Committee Member was
appointed) by reason of exercising their rights under Clause 15.2
to vote for another candidate disenfranchise themselves from
voting in respect of the appointment of the first-mentioned
Committee Member (unless the candidate in whose favour those
votes were cast were not appointed),
shall be entitled to vote on the appointment of his successor
(and then in accordance with the relevant paragraph of Clause
15.2.4). Until such successor is appointed the remaining
Committee Members appointed (or deemed appointed) by Generators
shall be entitled to nominate a successor.
15.4 Right to appoint (Suppliers): Subject to Clauses 15.6, 15.7
and 15.8, Suppliers shall together have the right to appoint not
more than five Committee Members, such appointments to be made in
accordance with the provisions of Schedule 14.
15.5 Right to remove (Suppliers): A Committee Member appointed
(or deemed appointed) by Suppliers or any class of Suppliers may
be removed in accordance with the provisions of Schedule 14.
15.6 Director's right to appoint: If at any time there shall be
no Small Generators, the Parties acknowledge and agree that the
Director shall have the right to appoint one person to be a
Committee Member to represent the interests of all Small
Generators and to remove from office any person so appointed by
him. The foregoing provisions of this Clause 15.6 shall apply
mutatis mutandis if at any time there shall be no Independent
Suppliers.
15.7 Qualifications on right to appoint:
15.7.1 No person appointed a Committee Member by the
Generators (or any of them) may for the duration of his
appointment be appointed a Committee Member by the Suppliers (or
any of them) and vice versa.
15.7.2 No person other than an individual shall be appointed a
Committee Member or his alternate.
15.7.3 No person for the time being appointed as Pool Chairman
shall be appointed a Committee Member of his alternate and no
person for the time being appointed a Committee Member or his
alternate shall be appointed as Pool Chairman.
15.7.4 No person for the time being appointed as Chief
Executive shall be appointed a Committee Member or his alternate
and no person for the time being appointed a Committee Member or
his alternate shall be appointed as Chief Executive.
15.8 Number: The maximum number of Committee Members shall not
at any time exceed ten.
15.9 Alternatives:
15.9.1 Each Committee Member shall have the power to appoint
any person (who may be an existing Committee Member) to be his
alternate and may at his discretion remove an alternate Committee
Member so appointed. Any appointment or removal of an alternate
Committee Member shall be effected by notice in writing executed
by the appointor and delivered to the Secretary who shall
forthwith notify all other Committee Members of such appointment.
If his appointor so requests, an alternate Committee Member shall
be entitled to receive notice of all meetings of the Executive
Committee or of sub-committees or sub-groups of which his
appointor is a member and to receive a voting paper on a poll
instead of the appointor. He shall also be voting paper on a
poll instead of the appointor. He shall also be entitled to
attend, speak and vote as a Committee Member at any such meeting
at which the Committee Member appointing him is not personally
present and at the meeting to exercise and discharge all the
functions, powers and duties of his appointor as a Committee
Member and for the purposes of the proceedings at the meeting the
provisions of this Part IV shall apply as if he were a Committee
Member. He shall also be entitled to demand a poll (whether at
or after the meeting) pursuant to Clause 22.3, to carry out
consultations with Pool Members contemplated by Clause 22.9
insofar as his appointor shall be unable to do so, to act on the
instructions of Pool Members duly given to his appointor or to
him on behalf of his appointor and to complete his appointor's
voting paper on a poll on behalf of his appointor.
15.9.2 Except on a poll, every person acting as an alternate
Committee Member shall have one vote for each Committee Member
for whom he acts as alternate, in addition to his own vote if he
is also a Committee Member. On a poll, an alternate Committee
Member shall be entitled (if his appointor is unable to do so) to
exercise (on behalf of his appointor and by completion of the
appointor's separate voting paper) all of the votes which his
appointor is entitled to cast, in addition to any votes which the
alternate is entitled to cast in his own capacity if he is also a
Committee Member. Execution by an alternate Committee Member of
any resolution in writing of the Executive Committee shall,
unless the notice of his appointment provides to the contrary, be
as effective as execution by his appointor.
15.9.3 An alternate Committee Member shall ipso facto cease to
be an alternate Committee Member if his appointor ceases for any
reason to be a Committee Member.
15.9.4 References in this Agreement to a Committee Member
shall, unless the context otherwise requires, include his duly
appointed alternate.
16 POOL CHAIRMAN
16.1 Pool Chairman: There shall at all times be a Chairman of
the pooling and settlement arrangements for the electricity
industry in England and Wales established by this Agreement (the
"Pool Chairman").
16.2 Appointment and Term:
16.2.1 The election of a Pool Chairman shall take place
either:
(i) at the annual general meeting or (as the case may be) an
extraordinary general meeting of Pool Members convened for that
purpose (where practicable) held not less than three months
before the end of the term of the then current Pool Chairman; or
(ii) should the Executive Committee so decide, by a postal vote
in accordance with Clause 16.4, such postal vote to have a
closing date which (where practicable) is not less than three
months before the end of the term of the then current Pool
Chairman.
16.2.2 Subject to Clause 16.2.4, the term of office of the
Pool Chairman shall be from 1st April in the year of his election
to the 31st March falling two years thereafter provided that:
(i) where the Pool Chairman is to be elected at an annual
general meeting or (as the case may be) an extraordinary general
meeting of Pool Members, if the meeting at which he is elected is
held after 1st April, his term of office shall commence from such
date as the Pool Members in general meeting shall resolve (being
no earlier than the date of such meeting);
(ii) where the Pool Chairman is to be elected by postal vote, if
the closing date of such postal vote is after 1st April, his term
of office shall commence from such date as shall be set out in
the notice of postal vote which shall have been sent to all Pool
Members by the Chief Executive in accordance with Clause 16.4;
and
(iii) his term of office shall expire before 31st March if he
resigns or is unable for whatever reason to continue to act or if
a successor Pool Chairman is elected with a term of office which
Pool Members either in general meeting or (as the case may be) by
the terms of a postal vote resolve is to commence before that
date.
16.2.3 The appointment of the Pool Chairman shall be on such
terms and conditions (including, but not limited to, terms and
conditions in relation to reimbursement, hours of work and
removal (subject to Clause 13.1.2)) as have been approved by Pool
Members in general meeting. Any amendment to those terms and
conditions shall require the prior approval of Pool Members in
general meeting.
16.2.4 Not later than three months prior to the end of the two
year term of the then current Pool Chairman, Pool Members may
either (i) call and hold a general meeting or (ii) call and hold
a postal vote and, if the Pool Chairman agrees, may resolve to
extend the term of appointment of the Pool Chairman by one year.
If the resolution is approved in accordance with the terms of
this Agreement then the term of appointment shall be so extended
provided that under no circumstances shall the term of
appointment exceed three years.
16.2.5 If at any time the Pool Chairman shall resign or be
unable for whatever reason to continue to act, an extraordinary
general meeting shall be called in accordance with Clause 9.4 or
a postal vote shall be called in accordance with Clause 16.4 for
the purposes of electing a successor Pool Chairman. Unless that
successor Pool Chairman himself is removed, resigns or is unable
for whatever reason to continue to act, he shall hold office
until the 31st March falling closest to the date two years after
the date of his election and his appointment may be extended in
accordance with Clause 16.2.4.
16.3 Transitional Provision: The appointment of the Pool
Chairman whose two year term of office starts on 1st April, 1996
is hereby ratified and confirmed by all Pool Members.
16.4 Election procedure (postal vote): The Executive Committee
may (where practicable) resolve to call a postal vote to elect a
Pool Chairman. Where the Executive Committee so resolves, such
postal vote shall be held in accordance with the following
principles:
16.4.1 the Executive Committee shall instruct the Chief
Executive, who shall send a notice to Pool Members, stating that
a postal vote has been called and inviting nominations to be sent
to the Chief Executive within a period of not less than 21 days
from the date of such notice;
16.4.2 once such period for nomination has closed, the Chief
Executive shall send to all Pool Members a ballot paper
containing a list of all eligible nominees and a closing date for
the receipt by the Chief Executive of completed ballot papers,
such date being no less than 21 days from the date of such ballot
paper; and
16.4.3 each Pool Member shall have one vote and the successor
Pool Chairman shall be elected by single transferable vote in
accordance with the procedures approved by the Executive
Committee.
16.5 Election procedure (general meeting):
16.5.1 Where any successor Pool Chairman is to be elected at
an annual general meeting or (as the case may be) extraordinary
general meeting, nominations shall be delivered no later than 21
days prior to the relevant annual general meeting or (as the case
may be) extraordinary general meeting.
16.5.2 At the relevant annual general meeting or (as the case
may be) extraordinary general meeting, all eligible nominees
shall be proposed by the Pool Chairman (failing whom, the Chief
Executive). Each Pool Member shall have one vote and the
successor Pool Chairman shall be elected by single transferable
vote in accordance with the procedures approved by the Executive
Committee.
16.6 Nominations: Any Pool Member can nominate any one person,
whether not an employee of a Pool Member, to be Pool Chairman.
Nominations made pursuant to this Clause 16.6 shall be delivered
in writing to the Chief Executive within any time period
specified pursuant to Clause 16.4 or (as the case may be) Clause
16.5. Any such nomination shall only be valid where accompanied
by a written statement from the nominee stating that he is aware
of the proposal and would be prepared to serve as Pool Chairman
in accordance with this Agreement and the relevant terms and
conditions if elected.
16.7 Functions: The Pool Chairman shall have and carry out only
such duties and responsibilities and exercise such powers as are
expressly provided in this Agreement and in his terms of
reference approved by the Executive Committee from time to time.
The Pool Chairman shall exercise impartially all such duties,
responsibilities and powers.
16.8 No voting rights: The Pool Chairman in his capacity as Pool
Chairman shall have no voting rights under this Agreement.
16.9 Indemnity: The Pool Chairman shall be indemnified and kept
indemnified jointly and severally by all Pool Members (and, as
between the Pool Members, rateably in the proportion which their
respective Contributory Shares bear one to the other at the time
of receipt of the request for indemnification) from and against
any and all costs (including legal costs), charges, expenses,
damages or other liabilities properly incurred or suffered by him
in relation to his office as Pool Chairman or the due exercise by
him of his powers, duties and responsibilities as Pool Chairman
and all claims, demands or proceedings arising out of or in
connection with the same except any such costs, charges,
expenses, damages or other liabilities which are suffered or
incurred or occasioned by the willful default or bad faith of, or
breach of duty or trust by, the Pool Chairman. The Pool Members
shall, upon request, provide the Pool Chairman with a written
deed of indemnity to that effect.
17 CHIEF EXECUTIVE, SECRETARIAT AND SECRETARY
17.1 Chief Executive:
17.1.1 Subject to Clause 15.7.4, a chief executive on the
Executive Committee (the "Chief Executive") shall be appointed
and be subject to removal and replacement by resolution of the
Executive Committee passed by 70 per cent or more of the votes of
all Committee Members (after consultation with the Pool
Chairman). The Chief Executive shall be appointed on such terms
and conditions as they see fit.
17.1.2 The Chief Executive shall undertake such duties and
responsibilities and exercise such powers in relation to the
Executive Committee and its activities as the Executive Committee
may from time to time assign to or vest in him.
17.1.3 The Chief Executive shall have the right and shall be
obliged to attend all meetings of the Executive Committee and all
meetings of the Pool Members in general meeting. The Chief
Executive in his capacity as Chief Executive shall have no voting
rights under this Agreement. If for any reason the Chief
Executive is unable to attend any such meeting, he shall nominate
a representative to attend in his place.
17.1.4 The Executive Committee shall make arrangements for the
remuneration of the Chief Executive and the payment of his costs
and expenses and the same shall be recovered in accordance with
the PFA Accounting Procedure or as otherwise directed by the
Executive Committee from time to time.
17.2 Secretariat:
17.2.1 The Executive Committee may from time to time appoint
and remove, or make arrangements for the appointment and removal
of, such personnel as the Executive Committee requires to assist
the Executive Committee, any sub-committee of the Executive
Committee, the chairman of the Executive Committee or any such
sub-committee, the Pool Chairman, the Chief Executive or the
Secretary in the proper performance of its or his duties and
responsibilities, in each such case upon such terms and
conditions as the Executive Committee sees fit.
17.2.2 Any personnel referred to in Clause 17.2.1 shall
undertake such duties and responsibilities and exercise such
powers as the Executive Committee may from time to time assign to
or vest in him, it or them.
17.2.3 The Executive Committee shall make arrangements for the
remuneration of such personnel as are referred to in Clause
17.2.1 and the payment of their costs and expenses and the same
shall be recovered in accordance with the PFA Accounting
Procedure or as otherwise directed by the Executive Committee
from time to time.
17.3 Secretary:
17.3.1 The Executive Committee may from time to time appoint
and remove, or make arrangements for the appointment and removal
of, the Secretary on such terms and conditions as it sees fit.
17.3.2 The Secretary in his capacity as Secretary shall have
no voting rights under this Agreement.
17.3.3 The Secretary shall have and carry out only such duties
and responsibilities as are expressly provided in this Agreement
and such other reasonable secretarial and administrative duties
and responsibilities as may from time to time be delegated to it
by the Executive Committee. If at any time there is no
Secretary, the responsibilities and duties of the Secretary under
this Agreement shall become those of the Chief Executive or, if
there shall be no Chief Executive, the Executive Committee until
such time as a Secretary is appointed pursuant to Clause 17.3.1
or a Chief Executive is appointed pursuant to Clause 17.1.1 (and
notices to the Secretary under this Agreement shall be re-
addressed accordingly.
17.3.4 The Secretary shall be entitled to receive such
remuneration (if any) as the Executive Committee may from time to
time approve, such remuneration to be paid to it at such times
and in such manner as the Executive Committee shall from time to
time direct and to be recovered in accordance with the PFA
Accounting Procedure or as otherwise directed by the Executive
Committee from time to time. Further, the Secretary shall be
paid its reasonable traveling, hotel and incidental expenses of
attending and returning from meetings of the Executive Committee
or any sub-committee thereof and any general meetings and
separate general meetings of Pool Members and all costs and
expenses properly and reasonably incurred by it in the
performance of its duties and responsibilities under this
Agreement. All such costs and expenses shall be recovered in
accordance with the PFA Accounting Procedure or as otherwise
directed by the Executive Committee from time to time.
17.4 Indemnity:
17.4.1 All Pool Members shall jointly and severally indemnify
and keep indemnified the Chief Executive, the Contract Manager,
the personnel referred to in Clause 17.2.1, the Secretary and
each member of any sub-committee of the Executive Committee or of
any sub-group established by any such sub-committee (other than a
Committee Member, but without prejudice to Clause 23.3.4) (and,
as between the Pool Members, according to their respective
Contributory Shares at the time of receipt of the request for
indemnification) from and against any and all costs (including
legal costs), charges, expenses, damages or other liabilities
properly incurred or suffered by the Chief Executive in relation
to his office as Chief Executive or (as the case may be) the
Secretary in relation to its office as Secretary or the due
exercise by the Chief Executive, the Contract Manager, the said
personnel, the Secretary or (as the case may be) any such member
of his, their or its power, duties and responsibilities under
this Agreement and all the same except any such costs, charges,
expenses, damages or other liabilities which are suffered or
incurred or occasioned by the wilful default or bad faith of, or
breach of obligation by, the Chief Executive, the Contract
Manager, such personnel, the Secretary or (as the case may be)
any such member.
17.4.2 The Pool Members undertake to enter into an indemnity
if favour of an employer of the Chief Executive, any personnel
referred to in Clause 17.2.1, the Secretary or (as the case may
be) any such member of any sub-committee of the Executive
Committee or of any sub-group established by any such sub-
committee as is referred to in Clause 17.4.1 under which they
shall jointly and severally indemnify and keep indemnified any
such employer in respect of all acts and omissions of the Chief
Executive, the Contract Manager, such personnel, the Secretary or
(as the case may be) any such member in the performance of his,
their or its rights, powers, duties and responsibilities under
this Agreement (and, as between the pool Members, according to
their respective Contributory Shares at the time of receipt of
the request for indemnification under the relevant indemnity).
18 PROCEEDINGS OF THE EXECUTIVE COMMITTEE
18.1 Meetings:
18.1.1 Meetings of the Executive Committee (other than special
meetings referred to in Clause 18.1.3) shall be held at least
quarterly (or at such shorter regular intervals as may be agreed
from time to time by the Executive Committee) at such time and
place in any jurisdiction in which any Pool Member is
incorporated or has its principal place of business as may be
agreed from time to time by the Executive Committee (or, in
default of agreement, as stipulated by the Pool Chairman).
18.1.2 Meetings of the Executive Committee shall be convened
by the Secretary upon giving to the Committee Members, the Pool
Chairman, the Chief Executive (if any), the Settlement System
Administrator, the Director and the Pool Auditor and (where
matters the subject of the agenda referred to in Clause 18.1.4
concern directly the functions, duties or responsibilities of any
Externally Interconnected Party (not being a Pool Member), the
Pool Funds Administrator, the Grid Operator and/or the Ancillary
Services Provider) the relevant one(s) of them at least five
working days' notice of the place, the day and the hour of the
relevant meeting.
18.1.3 Special meetings of the Executive Committee shall be
convened upon the request of any Committee Member, the Pool
Chairman or the Chief Executive. Such request shall be made in
writing to the Secretary and shall state the matters to be
considered at that special meeting. Upon receipt of such request
the Secretary shall convene in accordance with Clause 18.1.1
without delay such special meeting for a date occurring as soon
as practicable thereafter but not less than five nor more than
ten working days after receipt of such request. If the Secretary
shall fail so to convene a special meeting the Committee Member
which made such request, the Pool Chairman or (as the case may
be) the Chief Executive may himself convene a special meeting,
but any meeting so convened shall not be held after the
expiration of two months from the date of such request. A
special meeting convened under this Clause 18.1.3 by a Committee
Member, the Pool Chairman or the Chief Executive shall be
convened in the same manner, as nearly as possible, as that in
which meetings of the Executive Committee are to be convened by
the Secretary pursuant to Clause 18.1.2.
18.1.4 Any notice given under Clause 18.1.2 shall be exclusive
of the day on which it is served or deemed to be served and of
the day for which it is given and shall be accompanied by an
agenda of the matters to be considered at the relevant meeting
together with any supporting documents or papers then available
to the Secretary. Any Committee Member may advise additional
matters which he wishes to be considered at such meeting by
notice to all other Committee Members, the Pool Chairman, the
Chief Executive (if any), the Secretary, the Settlement System
Administrator, the Director and the Pool Auditor and (where such
additional matters concern directly the functions, duties or
responsibilities of any Externally Interconnected Party (not
being a Pool Member), the Pool Funds Administrator, the Grid
Operator and/or the Ancillary Services Provider) the relevant
one(s) of them given no later than three working days before the
date of such meeting. Only matters identified in such agenda or
so advised shall be discussed or resolved upon at such meeting.
The accidental omission to give notice of a meeting or
accompanying agenda or supporting documents or papers to, or the
non-receipt of notice of a meeting or accompanying agenda or
supporting documents or papers by, any person entitled to receive
notice shall not invalidate the proceedings at that meeting.
18.1.5 For any meeting of the Executive Committee, the periods
and methods of notice referred to in the foregoing provisions of
this Clause 18 may be waived prospectively or retrospectively
with the consent in writing of all such persons as are entitled
to attend the relevant meeting.
18.1.6 The Secretary shall prepare minutes of all meetings of
the Executive Committee and shall provide copies thereof to all
such person as were entitled to attend the relevant meeting as
soon as practicable (and in any event within ten working days)
after the relevant meeting has been held. Each person who
attended such meeting shall notify his approval or disapproval of
the minutes thereof and, if he fails to do so, he or it shall be
deemed to have approved the same. The Secretary shall record any
such disapproval in the minutes unless the same shall have been
withdrawn or the minutes amended with the agreement of the
Executive Committee. The Secretary shall provide copies of
minutes of meetings of the Executive Committee to any other Party
within a reasonable time after request therefor provided that the
said time for approving or disapproving the same has expired.
Further, the Secretary shall provide copies of such minutes to
such persons as the Executive Committee may from time to time
direct within a reasonable time after receipt of such direction.
19 CONDUCT OF EXECUTIVE COMMITTEE MEETINGS
19.1 General: Chairman:
19.1.1 Subject as provided in Clauses 13, 18 and 22 and this
Clause 19, the Executive Committee may meet for the transaction
of business, and adjourn and otherwise regulate its meetings, as
it shall see fit.
19.1.2 The Pool Chairman shall preside as chairman at every
meeting of the Executive Committee provided that:
(a) if the Pool Chairman is unable to attend any meeting, he
shall nominate another individual to preside as chairman at that
meeting in his place. Such individual shall be a director or
senior executive of one of the Pool Members but shall not be a
Committee Member or an alternate for any Committee Member; and
(b) if there is no Pool Chairman or the Pool Chairman or his
duly appointed nominee shall not be present within 15 minutes
after the time appointed for the holding of the meeting or the
Pool Chairman is unwilling to act, the Committee Members present
may appoint one of their number to be chairman of the meeting.
19.1.3 The chairman of the meeting in his capacity as chairman
shall not have any vote at meetings of the Executive Committee.
19 Quorum: No business shall be transacted at a meeting of the
Executive Committee unless a quorum is present at the time the
meeting proceeds to business. Three Committee Members appointed
pursuant to Clause 15.2 and three Committee Members appointed
pursuant to Clause 15.4 present in person or by their respective
alternates shall constitute a quorum.
19.3 Lack of quorum: If, within half an hour from the time
appointed for holding any meeting of the Executive Committee, a
quorum is not present, the meeting shall be adjourned to the same
day in the next week at the same time and place and if at the
adjourned meeting a quorum is not present within half an hour
from the time appointed for holding the meeting, those present
shall constitute a quorum.
19.4 Representation of non-Committee Members: Each of the
Settlement System Administrator, the Pool Chairman, the Director
and the Pool Auditor (or its or his duly appointed
representative) shall have the right to attend and speak (but not
to vote) at meeting of the Executive Committee. Each Externally
Interconnected Party (not being a Pool Member) and each of the
Pool Funds Administrator, the Grid Operator and the Ancillary
Services Provider (or its duly appointed representative) shall be
entitled to attend and speak (but not vote) at meetings of the
Executive Committee only where matters directly concerning its
functions, duties or responsibilities have been identified or
advised as provided in Clause 18.1.4 or if so requested by the
Executive Committee. The Chief Executive (or his duly appointed
representative) shall have the right to attend and speak (but not
vote) at meetings of the Executive Committee and shall be obliged
so attend. With the exception of attendances by the Pool
Chairman, the Chief Executive and the Pool Auditor, no payment
shall be made to any person who has the right by virtue of this
Clause 19.4 to attend Executive Committee meetings in respect of
any such attendance.
19.5 Written resolutions: A resolution in writing, executed by
or on behalf of each Committee Member, shall be as valid and
effectual as if it had been passed at a meeting of the Executive
Committee duly convened and held and may consist of several
instruments in like form and executed by or on behalf of one or
more of such Committee Members. Any proposed resolution in
writing shall be circulated to all those persons who would have
been entitled to attend a meeting of the Executive Committee at
which such resolution could properly have been passed.
19.6 Default in appointment: All acts done by any meeting of the
Committee Members or of a sub-committee of the Executive
Committee shall, notwithstanding that it be afterwards discovered
that there was some defect in the appointment of such Committee
Member, be as valid as if such person had been duly appointed.
20 DELEGATION
20.1 Sub-committees: The Executive Committee may establish sub-
committees. Each sub-committee:
20.1.1 shall be composed of such persons (whether or not
Committee Members) and shall discharge such rights, powers,
duties and responsibilities as from time to time the Executive
Committee considers desirable to delegate to it; and
20.1.2 in the exercise of its rights and powers and the
performance of its duties and responsibilities delegated to it by
the Executive Committee shall at all times conduct itself and its
affairs in a manner which it considers best designed to give
effect to the principal objects and purpose set out in Clause
4.1.2 and to promote, and not obstruct, the fair and efficient
operation of the procedures referred to in Clause 4.1.3 so that
the objectives set out in Clause 4.1.3 are thereby achieved; and
20.1.3 shall be given written terms of reference and, unless
otherwise varied by the Executive Committee, the provisions of
Clauses 18 and 19 shall apply mutatis mutandis to meetings of
such sub-committee and the provisions of Clauses 19.4, 23.3.1,
23.3.2 and 23.3.3 shall apply mutatis mutandis in relation to any
such sub-committee and the members thereof; and
20.1.4 may establish sub-groups to assist in the discharge of
the rights, powers, duties and responsibilities of such sub-
committee, each of which sub-groups shall be given written terms
of reference and, unless otherwise varied by the Executive
Committee or any sub-committee acting on the authority of the
Executive Committee, the provisions of Clauses 18 and 19 shall
apply mutatis mutandis to meetings of such sub-groups and the
provisions of Clauses 23.3.1, 23.3.2, and 23.3.3 shall apply
mutatis mutandis in relation to each such sub-group and the
members thereof.
20.2 Nominees: Upon written request of the Executive Committee
or, in the case of the Settlement System Administrator, Order
issued by the Contract Manager under Schedule 4, each Pool Member
and the Settlement System Administrator shall:
20.2.1 nominate one or more persons knowledgeable in the
matters referred to, or the subject of consideration by, the
relevant sub-committee to attend at meetings of, and otherwise
participate as a member of, any sub-committee established by the
Executive Committee; and
20.2.2 procure that such nominee(s) shall so attend and
participate at such time or times as the Executive Committee or
such sub-committee may require;
provided that a Pool Member shall not be required in any period
of 12 months to make available nominees for more than 60 days in
aggregate. Save as provided by Clause 23.5 no payment shall be
made to Pool Members in respect of any such attendance or
participation.
20.3 Member's responsibilities: To the extent not inconsistent
with the provisions of Clauses 20.1.1, 20.1.2, and 20.1.3 a
member of any sub-committee established by the Executive
Committee shall be free to represent the interests of the person
or persons which nominated him to that sub-committee but each
such person acknowledges and agrees the subordination of those
interests to the responsibilities of such sub-committee under
Clause 20.1.2.
20.4 Chief Executive: The Executive Committee may from time to
time delegate all or any of its rights, powers, duties and
responsibilities under this Agreement to the Chief Executive upon
such terms and conditions as the Executive Committee think fit.
20.5 Effect of decisions: Resolutions of sub-committees shall
not have binding effect (a) unless and then only to the extent
that the Executive Committee shall have delegated the relevant
decision-making powers to the sub-committee, or (b) unless
approved by resolution of the Executive Committee (and then
subject to Clause 13). Meetings of such sub-committees shall, so
far as possible, be arranged so that minutes of such meetings can
be circulated to each Committee Member in sufficient time for
consideration before the next following regular meeting of the
Executive Committee. Resolutions of sub-groups shall not have
binding effect. The Executive Committee shall remain at all
times responsible for the actions of all its sub-committees and
sub-groups.
20.6 Other delegation: Subject to any direction to the contrary
by Pool Members in general meeting but without prejudice to the
Executive Committee's rights under Clauses 20.1 and 20.4, the
Executive Committee may from time to time delegate in any
particular case all or any of its rights, power, duties and
responsibilities under this Agreement, including any decision-
making powers and the conduct of any review or consultation and
the preparation and submission of any report required of it under
this Agreement, to such person or persons as it thinks fit and on
such terms and conditions as it thinks fit and shall require
that, in the performance of the delegated duties, such person or
persons shall conform to any regulations that may be imposed on
it or them by the Executive Committee.
21 VACATION OF OFFICE BY COMMITTEE MEMBERS
The office of a Committee Member shall be vacated if:
21.1 he resigns his office by notice delivered to the Secretary;
or
21.2 he becomes bankrupt on compounds with his creditors
generally; or
21.3 he becomes of unsound mind or a patient for any purpose of
any statute relating to mental health; or
21.4 he and his alternate fail to attend more than three
consecutive meetings of the Executive Committee; or
21.5 he is removed from office pursuant to Clause 15.3, 15.5 or
(as the case may be) 15.6.
22 VOTING
22.1 Voting: The chairman of the relevant meeting of the
Executive Committee and any Committee Member may demand that any
question or matter arising at a meeting of the Executive
Committee be put to a vote of Committee Members. Any vote so
demanded shall be taken forthwith or at such other time as such
chairman directs not being later than the date of the next
meeting of the Executive Committee. Any demand for a vote may,
before the vote is taken, be withdrawn.
22.2 Simple majority: Subject as provided in Clauses 22.3 and
22.11, any question or matter arising at a meeting of the
Executive Committee shall be decided by a simple majority of the
votes cast at the meeting by Committee Members. On any such
question or matter each Committee Member shall be entitled to one
vote. In the event of an equality of votes on any resolution put
to the Executive Committee, the matter the subject of the
relevant resolution shall be remitted to the Committee Members
for decision on a poll.
23.3 Demand for a poll: In respect of any matter or question
which is put to a vote of Committee Members a poll may be
demanded (before or after the simple majority vote) either:
22.3.1 at the meeting at which the simple majority vote takes
place, by the chairman of the meeting or by any Committee Member;
or
22.3.2 by no later than five working days after such meeting,
by notice in writing to the Secretary by any Committee Member
(whether or not present at the relevant meeting).
22.4 Effect of decision: A decision duly made at a meeting of
the Executive Committee shall (unless otherwise determined by the
Executive Committee or otherwise provided by the terms of the
decision) have immediate effect, unless a poll be duly demanded
in accordance with Clause 22.3, in which case, pending the
outcome of the vote on a poll, the decision shall cease to or
shall not have effect.
22.5 Conduct of a poll: The Secretary shall without delay
following the demand for, or the remittance of a matter for
decision on, a poll despatch to each Committee Member a voting
paper in such form as shall be agreed by the chairman of the
Executive Committee meeting at which the matter in question was
considered or (failing him) the Chief Executive but which shall
in any event set out the full text of the resolution in respect
of which the poll is required (which shall be the same as the
resolution which was put to a simple majority vote), shall
provide for each Committee Member to cast votes for or against
the resolution and shall specify the date by which votes must be
lodged by Committee Members. The Secretary shall at the same
time give notice to all Parties that a poll has been demanded and
shall specify in such notice the resolution on which the poll has
been called (if applicable), the identity of the person (or
persons) who has demanded the poll and the date by which votes
must be lodged by the Committee Members. The accidental omission
to issue a voting paper or to give notice of a poll, or the non-
receipt of a voting paper or such a notice by, any person
entitled to receive the voting paper or (as the case may be) the
notice shall not invalidate the conduct of the poll or the result
thereof.
22.6 Votes on a poll: On a vote on a poll:
22.6.1 the Committee Members shall in aggregate be entitled to
a number of votes equal to the number of votes which the Pool
Members would have been entitled to cast on a poll at a general
meeting if such meeting had taken place on the day of the
Executive Committee meeting at which the matter in question was
considered;
22.6.2 the Committee Members appointed (or deemed appointed)
by Generators shall be entitled to case votes on the following
basis:
(a) each Committee Member nominated by a single Generator (which
for this purpose shall include affiliates and related
undertakings of a Generator which are also Generators) and
elected on the first round of voting shall cast the number of
votes respectively attributable to that Generator and to its
affiliates and related undertakings (in each case, whether as
Generators or Suppliers) in accordance with the written
instructions of that Generator and of each relevant affiliate and
related undertaking;
(b) the Committee Members not falling within (a) above shall
have the votes attributable to all other Generators (not being
those referred to in paragraph (a) above or their affiliates and
related undertakings) and shall cast such votes in accordance
with the individual written instructions of each such Generator,
but so that no Generator shall be entitled to instruct that the
votes attributable to it be cast more than once;
22.6.3 the Committee Members appointed by Suppliers shall be
entitled to cast votes on the following basis:
(a) the Committee Members appointed (or deemed appointed) by
Groups A, B, C and D shall each cast the votes attributable to
the members of the relevant Group in accordance with the written
instruction so of the individual Suppliers which are members of
that Group;
(b) the Committee Member appointed on behalf of the Independent
Suppliers shall cast the votes attributable to the Independent
Suppliers in accordance with the individual written instructions
of each such Supplier;
22.6.4 in the absence of any written instructions from any
Generator or Supplier, a Committee Member shall not be entitled
to cast any votes on behalf of that Generator or Supplier;
22.6.5 a Generator or a Supplier may instruct the relevant
Committee Member to abstain from casting any or a specified
number of votes on its behalf;
22.6.6 the votes cast by a Committee Member shall not be valid
unless:
(a) the relevant voting paper shall have been received by the
Secretary on or before the date falling 10 working days after the
date on which the voting papers were despatched to Committee
Members and the votes cast in such voting paper accord with the
written instructions referred to in paragraph (b) below;
(b) accompanied by a copy of the written instructions given by
or on behalf of the Generator(s) or Supplier(s) whose votes the
Committee Member is entitled to cast;
(c) the Committee Member in other respects shall have complied
with the procedures for votes on a poll (if any) from time to
time established by the Executive Committee;
22.6.7 any Generator or Supplier on whose instructions a
Committee Member is required to act in accordance with the
foregoing provisions shall be entitled to make arrangements with
any other Generator or Supplier on whose instructions that same
Committee Member is required to act for the requisite written
instructions to be given on its behalf by that other Generator or
Supplier. Details of any such arrangement shall promptly be
given to the Secretary.
22.7 65 percent majority: A resolution on a poll shall be
decided by a majority of not less than 65 per cent of the votes
duly cast. The Secretary shall as soon as reasonably practicable
after the expiry of the 20 working day period for return of
voting papers referred to in Clause 22.6.6(a) ascertain the
results of the poll in consultation with the Pool Chairman or
(failing him) the Chief Executive and thereafter notify all
Parties and all other persons entitled or required to attend
general meetings of Pool Members of the outcome of the poll. The
result of the poll shall be deemed to be the resolution of the
meeting at which or after which the poll was demanded.
22.8 Withdrawal of demand: Any demand for a poll may be
withdrawn by the person who made it at any time provided that
notice of withdrawal is received by the Secretary by no later
than the seventh working day following the date of the Executive
Committee meeting at which the simple majority vote took place.
The Secretary shall as soon as reasonably practicable notify all
Parties and all other persons entitled or required to attend
general meetings of Pool Members of receipt of any such notice of
withdrawal.
22.9 Responsibilities of Committee Members: The Committee
Members shall consult the Pool Members whose votes they are
entitled to cast as soon as reasonably practicable following the
demand for a poll and shall be required to cast, or to refrain
from casting, the votes of such Pool Members in accordance with
their individual instructions. The provisions of Clauses 23.1
and 23.2 shall not apply in respect of any vote conducted on a
poll.
22.10 Referral to general meetings: The provisions of this
Clause 22 are subject to the requirements of a referral to the
Pool Members in general meeting described in Clause 13.4.
22.11 Civil emergencies: The provisions of this Clause 22
are subject to the provisions of Clause 61.9.
23 COMMITTEE MEMBERS' RESPONSIBILITIES AND PROTECTIONS
23.1 Executive Committee's responsibilities: In the exercise of
its powers and the performance of its duties and responsibilities
under this Agreement the Executive Committee shall at all times
conduct itself and its affairs in a manner which it considers
best designed to give effect to the principal objects and purpose
set out in Clause 4.1.2 and to promote, and not obstruct, the
fair and efficient operation of the procedures referred to in
Clause 4.1.3 so that the objectives set out in Clause 4.1.3 are
thereby achieved. To the extent not inconsistent with the
responsibilities of the Executive Committee under this Clause
23.1 a Committee Member shall be free to give effect to his
responsibilities under Clause 23.2 but each of the Pool Members
whom such Committee Member represents acknowledges and agrees the
subordination of such Committee Member's responsibilities under
Clause 23.2 to the responsibilities of the Executive Committee
under this Clause 23.1.
23.2 Committee Members' responsibilities: In the exercise of his
powers and the performance of his duties and responsibilities as
a Committee Member under this Agreement a Committee Member shall
represent:
23.2.1 where he is appointed on the first round of voting
under Clause 15.2.4, the interests of the Pool Member who cast
the most number of votes in favour of his appointment;
23.2.2 where he is appointed on the second or third round of
voting under Clause 15.2.4 or where he is appointed pursuant to
Section 6 of Schedule 14, the interests of all Pool Members who
were entitled to vote on his appointment (and, for the purposes
of this Clause, until the annual general meeting of Pool Members
in 1996 Central Power Limited and Peterborough Power Limited
shall be deemed to be Pool Members who were entitled to vote on
the appointment of the Committee Member appointed on the second
round of voting), but so that he shall not incur personal
liability as against one or more such Pool Members, if acting
bona fide, he acts in a way which gives effect to the interests
of one or more other such Pool Members; and
23.2.3 where he is appointed as a Committee Member for a Group
pursuant to Schedule 14, the interests of the PES Members of the
Group in respect of which he is appointed.
23.3 Protections:
23.3.1 The Executive Committee, each Committee Member, the
Pool Chairman, the Chief Executive, the Contract Manager and the
Secretary shall be entitled to rely upon any communication or
document reasonably believed by it or him to be genuine and
correct and to have been communicated or signed by the person by
whom it purports to be communicated or signed and shall not be
liable to any of the Parties for any of the consequences of such
reliance.
23.3.2 The Executive Committee, each Committee Member, the
Pool Chairman, the Chief Executive, the Contract Manager and the
Secretary may in relation to any act, matter or thing
contemplated by this Agreement act on the opinion or advice of,
or any information from, any lawyer, banker, valuer, broker,
accountant or any other specialist or professional adviser given
within the field of expertise usually ascribed to persons of such
description or the specialist field of expertise for which he has
been retained and duly instructed so to act by the Executive
Committee, and shall not be liable for the consequences of so
acting. The appointment of any such adviser to the Executive
Committee shall be approved by the Executive Committee before any
such cost is charged to the PFA Accounting Procedure.
23.3.3 In the event of any conflict or inconsistency, any
directions and instructions of the Director (which the Director
is entitled under his statutory or regulatory powers to issue or
give) shall prevail over the duties and responsibilities of the
Executive Committee or the Secretary under this Agreement and no
liability whatsoever shall attach to the Executive Committee or
any Committee Member or the Pool Chairman or the Chief Executive
or the Contract Manager or the Secretary (as the case may be) as
a result of due compliance by it or him with any such directions
and instructions.
23.3.4 Each Committee Member shall be indemnified and kept
indemnified by that Pool Member or jointly and severally by those
Pool Members whom he represents as provided in Clause 23.2 (and,
if more than one, as between the relevant Pool Members rateably
in the proportion which their respective Contributory Shares bear
one to the other at the time of receipt of the request for
indemnification) from and against any and all costs (including
legal costs), charges, expenses, damages or other liabilities
properly incurred or suffered by him in relation to the Executive
Committee or his office as Committee Member or the due exercise
by him of his powers, duties and responsibilities as a Committee
Member and all claims, demands or proceedings arising out of or
in connection with the same except any such costs and expenses
referred to in Clause 23.4 which have been recovered in
accordance with the PFA Accounting Procedure and any such costs,
charges, expenses, damages or other liabilities which are
suffered or incurred or occasioned by the wilful default or bad
faith of, or breach of duty or trust by, such Committee Member.
The Pool Member or (as the case may be) Pool Members whom he
represents as aforesaid shall, upon request, provide the relevant
Committee Member with a written deed of indemnity to that effect.
23.4 Committee Members' costs and expenses: Each Committee
Member and each member of any sub-committee or sub-group of the
Executive Committee may be paid his reasonable traveling, hotel
and incidental expenses of attending and returning from meetings
of the Executive Committee or any such sub-committee or sub-group
and shall be paid all expenses properly and reasonably incurred
by him in the conduct of the business of the Executive Committee
or the relevant sub-committee or sub-group or in the discharge of
his duties as a Committee Member or (as the case may be) a member
of the relevant sub-committee or sub-group. All such expenses
shall be recovered in accordance with the PFA Accounting
Procedure.
23.5 Committee's costs and expenses: The Executive Committee and
each of its sub-committees and sub-groups shall be entitled to
recover all its costs and expenses properly incurred in
accordance with the PFA Accounting Procedure. For this purpose,
the costs and expenses of the Executive Committee shall include
properly incurred costs, expenses and liabilities off or
associated with any business accommodation and services required
by the Executive Committee, the Chief Executive, the Secretary or
the personnel referred to in Clause 17.2.1 and the properly
incurred costs and expenses of any consultant or adviser retained
by the Executive Committee or any such person in the proper
performance of its of his duties and responsibilities.
24 POWER OF THE EXECUTIVE COMMITTEE
24.1 General power: Subject as otherwise provided in this
Agreement, the Executive Committee shall, as between itself and
the Pool Members in general meeting, exercise overall supervision
of the Settlement System and its operations.
24.2 Specific powers: Subject as otherwise provided in this
Agreement, the powers, duties and responsibilities of the
Executive Committee shall, as between itself and the Pool Members
in general meeting, include:
24.2.1 the specific powers, duties and responsibilities set
out in the Pool Rules;
24.2.2 monitoring on a regular basis the Settlement System
Administrator in its operation of the Settlement System
(including deciding whether to propose to the Pool Members in
general meeting for their approval the removal of the Settlement
System Administrator);
24.2.3 the power to appoint and remove the Pool Funds
Administrator and to carry out the other functions ascribed to it
in Schedules 11 and 15 and to enter into on behalf of Pool
Members any agreement or arrangement with the Pool Funds
Administrator (or successor Pool Funds Administrator) in
substitution of that set out in Schedule 15;
24.2.4 monitoring on a regular basis each of the Grid Operator
and the Ancillary Services Provider in the performance of it
obligations under this Agreement;
24.2.5 considering applications by New Parties to be admitted
as parties to this Agreement under Clause 3 and of Parties to be
admitted as Pool Members under Clause 8;
24.2.6 considering, amending, substituting, approving and
disapproving all Agreed Procedures, Codes of Practice (including
commissioning reviews thereof by the Pool Auditor in accordance
with Clause 47.1.5 or by other technical experts) and Service
Lines;
24.2.7 the specific powers, duties and responsibilities set
out in Schedule 4;
24.2.8 the specific powers, duties and responsibilities set
out in Schedule 15;
24.2.9 appointing and removing the Pool Auditor, and
instructing the Pool Auditor to conduct audits, reviews, tests
and checks and the monitoring and review thereof, all in
accordance with Part IX;
24.2.10 opening, maintaining and closing bank accounts for its
own purposes and crediting and debiting sums thereto;
24.2.11 controlling the development of the Pool Rules and
considering and approving or disapproving amendments to the Pool
Rules in accordance with Clause 7.4.2;
24.2.12 commissioning independent reviews of the Scheme and its
operation in accordance with Part XIII;
24.2.13 conducting reviews, preparing Works Programmes and
implementing Transitional Arrangements, all in accordance with
Clause 5;
24.2.14 preparing the reports referred to in Clause 9.1.1 and
the business plan referred to in Clause 9.1.6 and preparing and
despatching regular quarterly reports to the Parties (with a copy
to the Director) in relation to all matters which are the subject
of this Agreement and in such reports reviewing performance over
the immediately preceding Quarter against the business plan
referred to in Clause 9.1.6;
24.2.15 considering any representation from any Pool Member in
relation to any regular quarterly report prepared pursuant to
Clause 24.2.14 above or otherwise relating to any matter which is
the subject of this Agreement;
24.2.16 overseeing the standards of Metering Equipment and the
Codes of Practice, agreeing in accordance with paragraph 14 of
Schedule 21 dispensation therefrom and reviewing the need for new
standards for Metering Equipment and, where it considers such new
standards are required, adopting such standards in accordance
with the requirements for adoption of Codes of Practice as
contained in the definition of Code of Practice) and in
accordance with the provisions of Schedule 21;
24.2.17 dealing promptly and efficiently with any dispute
referred to it concerning Settlement or its operation (including
with respect to data);
24.2.18 convening in accordance with Clause 9.4 general
meetings of Pool Members or classes of Pool Members and convening
in accordance with Clause 9.6 quarterly meetings of Pool Members;
24.2.19 appointing, remunerating and removing the Chief
Executive in accordance with Clause 17.1 and, where permitted by
the terms of this Agreement, giving directions and instructions
to the Chief Executive, the Contract Manager, the Settlement
System Administrator, the Pool Funds Administrator, the Grid
Operator, the Ancillary Services Provider, Externally
Interconnected Parties (not being Pool Members) and other persons
to carry into effect the decisions of the Executive Committee or
Pool Members in general meeting or separate general meeting;
24.2.20 if requested by the Director, conveying any direction
or request of the Director to the Settlement System
Administrator, the Pool Funds Administrator, the Grid Operator,
the Ancillary Services Provider or any other Party or the Pool
Auditor;
24.2.21 appointing, remunerating and removing in accordance
with the Grid Code one or more persons to represent the Executive
Committee on the Grid Code Review Panel;
24.2.22 appointing, remunerating and removing lawyers, bankers,
valuers, brokers, accountants and other professional and
specialist advisers to assist the Executive Committee or any of
its sub-committees in the performance of its duties and
responsibilities under this Agreement;
22.2.23 subject to any applicable confidentiality provisions,
monitoring any litigation, arbitration or other proceedings
affecting or which may affect the Settlement System;
24.2.24 subject to any applicable confidentiality provisions,
advising Pool Members, Externally Interconnected Parties (not
being Pool Members), the Settlement System Administrator, the
Pool Funds Administrator, the Grid Operator and the Ancillary
Services Provider of decisions of the Executive Committee
applicable to them or the relevant one(s) of them liaising with
all such persons on an ongoing and regular basis;
24.2.25 advising each of the Pool Auditor and the Director of
decisions of the Executive Committee and of Pool Members in
general meeting or separate general meeting and liaising with
each of the Pool Auditor and the Director on a ongoing and
regular basis;
24.2.26 investigating any complaints made by any Pool Member
concerning the Settlement System, the Funds Transfer System (or
any part or aspect of any thereof), the Settlement System
Administrator, the Pool Funds Administrator, the Grid Operator,
the Ancillary Services Provider, the Pool Auditor, the Pool
Banker or the Custodian;
24.2.27 approving the Pool Banker and giving instructions for,
or consenting to, the removal of the same;
24.2.28 reviewing and approving or disapproving the Procedures
Manual in accordance with Clause 64;
24.2.29 considering and dealing with any other matter relating
to the Settlement System, the Funds Transfer System (or any part
or aspect of any thereof) or its or their operation referred to
the Executive Committee by the Pool Members in general meeting or
separate general meeting, any Pool Member, the Pool Chairman, the
Pool Auditor or the Director and any other matter which is
otherwise designated under this Agreement for reference to it;
and
24.2.30 determining the amount of the Second Tier Suppliers'
System Charge.
24.3 Exclusion of general meeting powers: Pool Members in
general meeting shall have no powers in relation to the matters
expressly reserved under this Agreement to the Executive
Committee except to the extent that such matters are remitted to
the Pool Members in general meeting under Clause 13.4.
PART V
LIMITATION OF LIABILITY
25 LIMITATION OF LIABILITY
25.1 Limitation of liability: Subject to Clause 25.2 and save
where any provision of this Agreement provides for an indemnity,
each Party agrees and acknowledges that no Party (excluding for
this purpose the Settlement System Administrator) (the "Party
Liable") or any of its officers, employees or agents shall be
liable to any of the other Parties for loss arising from any
breach of this Agreement other than for loss directly resulting
from such breach and which at the date of this Agreement was
reasonably foreseeable as not unlikely to occur in the ordinary
course of events from such breach in respect of:
25.1.1 physical damage to the property of any of the other
Parties or its or their respective officers, employees or agents;
and/or
25.1.2 the liability of any such other Party to any other
person for loss in respect of physical damage to the property of
any other person.
25.2 Death and personal injury: Nothing in this Agreement shall
exclude or limit the liability of the Party Liable for death or
personal injury resulting from the negligence of the Party Liable
or any of its officers, employees or agents and the Party Liable
shall indemnify and keep indemnified each of the other Parties,
its officers, employees or agents from and against all such and
any loss or liability which any such other Party may suffer or
incur by reason of any claim on account of death or personal
injury resulting from the negligence of the Party Liable or any
of its officers, employees or agents.
25.3 Exclusion of certain types of loss: Subject to Clause 25.2
and save where any provision of this Agreement provides for an
indemnity, neither the Party Liable nor any of its officers,
employees or agents shall in any circumstances whatsoever be
liable to any of the other Parties for:
25.3.1 any loss of profit, loss of revenue, loss of use, loss
of contract or loss of goodwill; or
25.3.2 any indirect or consequential loss; or
25.3.3 loss resulting from the liability of any other Party to
any other person howsoever and whensoever arising save as
provided in Clauses 25.1.2 and 25.2.
25.4 Trust: Each Party acknowledges and agrees that each of the
other Parties holds the benefit of Clauses 25.1, 25.2 and 25.3
for itself and as trustee and agent for its officers, employees
and agents.
25.5 Survival: Each of Clauses 25.1, 25.2, 25.3 and 25.4 shall:
25.5.1 be construed as a separate and severable contract term,
and if one or more of such Clauses in held to be invalid,
unlawful or otherwise unenforceable the other or others of such
Clauses shall remain in full force and effect and shall continue
to bind the Parties; and
25.5.2 survive termination of this Agreement.
25.6 Saving: For the avoidance of doubt, nothing in this Part V
shall prevent or restrict any Party enforcing any obligation
(including suing for a debt) owed to it under or pursuant to this
Agreement.
25.7 Full negotiation: Each Party acknowledges and agrees that
the foregoing provisions of this Part V have been the subject of
discussion and negotiation and are fair and reasonable having
regard to the circumstances as at the date of this Agreement.
PART VI
THE SETTLEMENT SYSTEM ADMINISTRATOR
26 APPOINTMENT
ESIS is hereby appointed by each Pool Member and agrees to
act as the initial Settlement System Administrator on and subject
to the terms and conditions of the SSA Arrangements.
27 [Not used].
28 [Not used].
PART VII
THE SETTLEMENT SYSTEM ADMINISTRATOR'S RESPONSIBILITIES
29 RESPONSIBILITIES
Responsibilities: Without prejudice to the generality of the
duties, responsibilities and obligations of the Settlement System
Administrator provided elsewhere in the SSA Arrangements.
29.1 Provision of information: The Settlement System
Administrator shall provide each Pool Member and the Ancillary
Services Provider upon request with a certified copy of such
records, data and other information concerning amounts payable by
or to such Pool Member and the Ancillary Services Provider as
such Pool Member may reasonably request for the purpose of
establishing the amounts which are owed to or by such Pool Member
in accordance with this Agreement, and in any event such
information as any Pool Member may request from the Settlement
System Administrator in order to establish or prove a claim to
any amounts due or claimed to be due. The Settlement System
Administrator shall provide such information forthwith upon
request or (if so required by the Settlement System
Administrator) upon delivery of a certificate from the Pool
Member's counsel certifying that such information is required for
such purpose. Each of the Parties agrees to the release of all
such records, data and other information in the circumstances
described in this Clause 29.1.
29.2 Arrangements with the Grid Operator and Ancillary Services
Provider: Each of the Settlement System Administrator, the Grid
Operator and the Ancillary Services Provider shall make and
maintain arrangements with each other whereby such data and other
information as may be collected or received by any of them or
necessary for the purposes of the Settlement System, the
Ancillary Services Business or (as the case may be and subject to
Clause 69) the operation of the NGC Transmission System or the
performance by the Grid Operator of its obligations under the NGC
Transmission Licence shall be provided to such respective
obligations under this Agreement, the Grid Code, any Ancillary
Services Agreement and/or the NGC Transmission Licence. Each of
the Parties agrees to the release of all such data and other
information in the circumstances described in this Clause 29.2.
29.3 Arrangements with the Pool Funds Administrator: The
Settlement System Administrator and the Pool Funds Administrator
shall make and maintain arrangements with each other whereby:
(a).sufficient data and other information is provided by the
Settlement System Administrator to the Pool Funds Administrator
as to enable the Pool Funds Administrator to perform its
obligations under this Agreement and the Funds Transfer Agreement
; and
(b) sufficient data and other information is provided by the
Pool Funds Administrator to the Settlement System Administrator
as to enable the Settlement System Administrator to perform its
obligations under this Agreement.
Each of the Parties agrees to the release of all such data and
other information in the circumstances described in this Clause
29.3.
30 [Not used].
31 [Not used].
32 [Not used].
33 [Not used].
34 COSTS, FEES AND EXPENSES
34.1 Schedule 4: The provisions of Schedule 4 shall have effect.
34.2 Fees:
34.2.1 Each Party which is not a Pool Member (other than the
Settlement System Administrator, the Pool Funds Administrator,
the Grid Operator and the Ancillary Services Provider) shall pay
the Settlement System Administrator a fee as provided in Section
8 of Part G of the Appendix to Schedule 4 in respect of the
provision to such Party of all data and other information which
is required by the terms and conditions of Service Line 10
(Service to CEO and Pool Members to be made available to it by
the Settlement System Administrator.
34.2.2 A Party may at any time by notice in writing to the
Settlement System Administrator elect not to be provided with all
or some of the data and other information to which it is entitled
from the Settlement System Administrator under this Agreement and
may change such election at any time upon further written notice
to the Settlement System Administrator.
34.3 Charges: The Executive Committee shall be entitled to
require that a fee or other charge (not exceeding 500 pounds
sterling per dispute or such other sum as the Pool Members in
general meeting may from time to time approve) be levied on and
paid by a Party in respect of any dispute concerning Settlement
or its operation (including with respect to data) referred by
such Party for determination to the Executive Committee or any
sub-committee thereof. Such fee or other charge shall be levied,
paid and collected in such manner and at such time as the
Executive Committee shall direct and the relevant Party hereby
undertakes to pay any such fee or other charge so levied. Any
such fee or other charge shall at the option o f the Executive
Committee (i) be refunded in whole or in part to the Party which
paid the same, or (ii) be applied against the administration
costs of whatsoever nature of the Executive Committee or the
relevant sub-committee.
34.4 Externally Interconnected Parties' costs:
34.4.1 An Externally Interconnected Party shall be entitled to
recover in accordance with this Clause 34.4 its costs and
expenses reasonably incurred in acting in accordance with this
Agreement as the Externally Interconnected Party for its
Corresponding External Pool Members (as defined in the Pool
Rules).
34.4.2 Not later than 30 days after the beginning of each
Accounting Period (commencing with the Accounting Period
beginning in 1992) each Externally Interconnected Party shall
submit in writing to the Executive Committee for approval (such
approval not to be unreasonably withheld) reasonable details of
the costs and expenses anticipated as likely to be incurred by it
in its capacity as an Externally Interconnected Party in that
Accounting Period and (commencing with the Accounting Period
beginning in 1993) of the actual costs and expenses so incurred
by it in the immediately preceding Accounting Period. If
approved by the Executive Committee, all such costs and expenses
shall be recovered by an Externally Interconnected Party from
its Corresponding External Pool Members in accordance with Clause
34.4.3. If not so approved, the Externally Interconnected Party
shall revise and resubmit to the Executive Committee the said
details as often as may be required in order to obtain such
approval.
34.4.3 Each Corresponding External Pool Member shall reimburse
its Externally Interconnected Party its due proportion of all its
Externally Interconnected Party's approved costs and expenses
within 28 days after receipt of an invoice from its Externally
Interconnected Party. The Externally Interconnected Party shall
issue invoices in respect of each Quarter on or after the Quarter
Day relating thereto. Invoices shall be based on approved
anticipated costs and expenses for the relevant Accounting Period
and the first invoice for each Accounting Period (commencing with
the Accounting Period beginning in 1993) shall include any
correction that may be necessary on account of the approved
actual costs and expenses being different from the approved
anticipated costs and expenses for the immediately preceding
Accounting Period.
34.4.4 For the purposes of this Clause 34.4 a Corresponding
External Pool Member's due proportion of its Externally
Interconnected Party's approved costs and expenses for each
Quarter shall be calculated as follows:
(a) the aggregate of the Externally Interconnected Party's
approved costs and expenses shall be divided by two;
(b) as to one half of such approved costs and expenses, the
Corresponding External Pool Member's due proportion shall be the
proportion which the sum of (i) the number of its Generation
Trading Blocks and (ii) one (representing the notional Consumer
referred to in paragraph 26.5.2(d) of the Pool Rules) bears to
the sum of (a) the total number of the Generation Trading Blocks
of all Corresponding External Pool members the Externally
Interconnected Party of which is the same as that for the
Corresponding External Pool Member in question and (b) the number
of all such Corresponding External Pool Members, and each such
Corresponding External Pool Member shall for this purpose be
allocated at least one Generation Trading Block; and
(c) as to the other half of such approved costs and expenses,
the Corresponding External Pool Member's due proportion shall be
the proportion which its Gross Traded Energy for the Quarter in
question bears to the aggregate of the Gross Traded Energy for
that Quarter of all Corresponding External Pool Members the
Externally Interconnection Party of which is the same as that for
the Corresponding External Pool Member in question, and for this
purpose "Gross Traded Energy" in respect of any Quarter and any
Corresponding External Pool Member shall be the aggregate amount
of Active Energy (measured in kWh ) bought and sold pursuant to
this Agreement by such Corresponding External Pool Member in its
capacity as such in that Quarter.
34.4.5 The foregoing provisions of this Clause may be amended
or varied in respect of an Externally Interconnected Party and
its Corresponding External Pool Members (or any of them) by prior
written agreement of that Externally Interconnected Party, all
its Corresponding External Pool Members and the Executive
Committee.
34A SECOND TIER SYSTEM CHARGES
34A.1 The Following provisions of this Section 34A shall
apply in respect of each of the Accounting Periods beginning on
1st April, 1994, 1st April, 1995, 1st April, 1996 and 1st April,
1997 (each a "Specified Accounting Period").
34A.2 Subject to Section 34A.6, the Second Tier Suppliers'
System Charge for a Specified Accounting Period shall be
determined by the Executive Committee as the amount per annum to
be charged to each Second Tier Supplier in respect of each Second
Tier System supplied by such Supplier.
34A.3 Subject to Section 34A.6, the Second Tier Suppliers'
Non-Pooled Generation System Charge for a Specified Accounting
Period shall be determined by the Executive Committee as the
amount per annum to be charged to each Second Tier Supplier in
respect of each Non-Pooled Generator for whose Metering System
such Second Tier Supplier is the Registrant.
34A.4 Subject to Section 34A.6, the Suppliers' System Charge
for a Specified Accounting Period shall be determined by the
Executive Committee as the amount per annum to be charged to each
Supplier (other than a Second Tier Supplier) in respect of each
Non-Second Tier System in that Supplier's authorised area.
34A.5 The second tier system charge payable by a Supplier in
respect of each calendar month in a Specified Accounting Period
shall be calculated as follows:
(a) in respect of each Second Tier Supplier, in accordance with
the following formula:
Second Tier Suppliers' System Charge times NOSP divided by 12
where NOSP is the total number of Second Tier Systems supplied by
such Supplier at the beginning of the relevant calendar month;
(b) in respect of each Second Tier Supplier and in addition to
the charge in Section 34A.5(a), in accordance with the following
formula:
Second Tier Suppliers' Non-Pooled Generation System Charge times
NNPG divided by 12
where NNPG is the total number of Metering Systems of Non-Pooled
Generators for which such Second Tier Supplier is the Registrant
at the beginning of the relevant calendar month;
(c) in respect of each Supplier (other than a Second Tier
Supplier), in accordance with the following formula:
Suppliers' System Charge times NMS divided by 12
where NMS is the total number of Non-Second Tier Systems in that
Supplier's authorised area as at the beginning of that month;
(d) for these purposes, the numbers of Second Tier Systems and
of Non-Second Tier Systems as at the beginning of each calendar
month shall be as notified to the Settlement System Administrator
(who shall then notify the Director) by the relevant Suppliers
(and the Settlement System Administrator being entitled, in the
absence of any notification to the contrary, to rely on the last
such notification and other information in its possession) and,
in the event of any dispute between the Parties, shall be as
determined by the Director (whose determination shall be final
and binding); and
(e) only those Second Tier Systems in respect of which data
collection costs are incurred by Second Tier Agents or the
Settlement System Administrator shall be used in determining the
number of Second Tier Systems.
34A.6 If in respect of any Specified Accounting Period (other
than the one beginning on 1st April, 1997) the aggregate of all
second tier system charges payable pursuant to Sections 34A.5(a),
34A.5(b) and 34A.5(c) and received by the Settlement System
Administrator is less than or (as the case may be) more than the
Total Second Tier System Charges for such Specified Accounting
Period the deficit or (as the case may be) the surplus shall be
carried forward to the immediately succeeding Specified
Accounting Period and shall be included in the calculation of the
Total Second Tier System Charges therefor.
34A.7 The Executive Committee will use its reasonable
endeavours to ensure that the aggregate of all second tier system
charges payable pursuant to Sections 34A.5(a), 34A.5(b) and
34A.5(c) and received by the Settlement System Administrator in
respect of the Accounting Period beginning on 1st April, 1997
meets the Total Second Tier System Charges specified for that
Accounting Period. There shall be no carry forward of any such
deficit or surplus arising in respect of the Specified Accounting
Period beginning on 1st April, 1997.
PART VIII
THE SETTLEMENT SYSTEM AND COMPUTER OPERATIONS
35 DEVELOPMENT OF THE SETTLEMENT SYSTEM
35.1 Development: The Settlement System shall be developed under
the overall control of the Executive Committee. All developments
of and changes to the Computer Systems shall be made in
accordance with the terms and the Development Policies.
35.2 Delegation: Save as provided by the Development Policies,
the Executive Committee shall be entitled to delegate all or any
of its rights, powers and duties under Clause 35.1 and the
Development Policies to such person(s) and on such terms and
conditions as from time to time it may see fit.
35.3 Development Policies:
35.3.1(a) the matters addressed by the Development Policies are
set out in the list of contents in the Development Policies.
These general headings define the scope of the Development
Policies.
35.3.1(b) The scope of the Development Policies may be amended at
any time and from time to time by written agreement of the
Executive committee and the Settlement System Administrator.
35.3.1(c) Any amendment to any of the matters addressed by the
Development Policies or any addition or substitution to the
Development Policies which does not extend or restrict (other
than in a way or to an extent which can reasonably be regarded as
de minimis) the scope of the Development Policies may be made at
any time and from time to time, and shall be effective if so
made, by the Executive Committee after consultation with the
Settlement System Administrator unless such matter is one covered
by the headings in Schedule 16 and in which event such amendment,
addition or substitution may be made and shall be effective only
by written agreement of the Executive Committee and the
Settlement System Administrator.
35.3.2 Without prejudice to Clause 35.3.1(c), Schedule 16 may
be changed at any time and from time to time by written agreement
of the Executive Committee and the Settlement System
Administrator.
35.3.3 Each of the Parties undertakes to comply with (and the
Pool Members undertake to ensure that the Executive Committee
complies with) the Development Policies.
35.4 SSA's comments: The Executive Committee or the particular
sub-committee or sub-group in respect off any development of the
Settlement System shall take into account all reasonable comments
of the Settlement System Administrator in relation to the
specification, design, testing and implementation requirements of
any development of the Settlement System where such comments
relate to the operational compatibility or consistency with the
Settlement System or the ability of the Settlement System
Administrator to comply with this Agreement, the Act or NGC's
Transmission Licence.
35.5 Provision of data and information: Each Party shall ensure
that all data and information necessary to enable any testing of
the Settlement System or any development thereof or change
thereto required under the Development Policies and which is
permitted to be released by the Settlement System Administrator
under the Pool Rules or as otherwise expressly provided herein is
supplied to the Executive Committee or as it may direct and to
the Settlement System Administrator, and each Party shall use all
reasonable endeavours to co-operate with and support any such
testing.
35.6 Provision of data and information to authorised person: The
Parties shall provide or ensure that the Settlement System
Administrator provides all data and information required under
Clause 35.5 to such persons as may from time to time be
authorised by the Executive Committee to receive the same
provided that such persons shall have executed a confidentiality
undertaking in such form as the Executive Committee may from time
to time determine. If the Settlement System Administrator is not
permitted to required to release any data and information by
reason only of the confidential nature of such data and
information it shall and may provide representative data to the
extent required for such testing.
35.7 Inconsistencies and conflicts: In the event of any
inconsistency or conflict between the provisions of this
Agreement and the provisions of the Development Policies, the
provisions of this Agreement shall prevail.
36 CHANGE MANAGEMENT
36.1 Change Management Policies: In order to ensure that
developments of and changes to the Settlement System are brought
into effect in an ordered and controlled manner, each of the
Parties undertakes to comply with the Change Management Policies.
36.2 Amendments: The Change Management Policies may be amended
at any time and from time to time by the Executive Committee
after consultation with the Settlement System Administrator.
37 SOFTWARE
37.1 [Not used].
37.2 Warranties: Without prejudice to Service Line 19 (System
Integration) and Section 9 of Schedule 4, nothing in this
Agreement shall imply or impose any requirement on the Settlement
System Administrator to give any warranty with respect to any
Software.
37.3 No liability: Each Party acknowledges that neither NGC nor
Energy Settlements and Information Services Limited shall have
any liability in respect of any software developed before the
Effective Date.
38 [Not used]
39 [Not used]
40 [Not used]
41 NOTIFICATION OF DEFECTS BY POOL MEMBERS
Each Pool Member undertakes to the Settlement System
Administrator and each other Pool Member promptly to notify the
Settlement System Administrator and the Executive Committee in
writing of any defects of which it is or becomes aware in the
Software or its operation and to provide such further information
as may reasonably be required by the Settlement System
Administrator to identify, isolate and correct such defect.
42 [Not used]
43 [Not used]
44 [Not used]
45 ESCROW ARRANGEMENTS
45.1 Escrow Agreement: On 17th March, 1992 the Settlement System
Administrator (for itself and on behalf of the Pool Members
acting through the Executive Committee) entered into an escrow
agreement (the "Escrow Agreement") in the form set out in
Schedule 7 with the National Computing Centre Limited (the
"Custodian"). The Settlement System Administrator has deposited
or will deposit as soon as it comes into existence:
45.1.1 a copy of the source code and load (machine executable)
modules relating to all Developed Application Software (as
defined in Schedule 4) together with all job control language and
licensed software system tables, each in a machine readable form
and the source code and job control language in a hard copy for;
and
45.1.2 a copy of all related manuals and other associated
documentation, including:
(a) any user requirement documents, together will all associated
authorised change requests;
(b) any functional specification documents associated with those
documents described in paragraph (a) above, together with all
authorised change requests associated with the relevant
functional specification;
(c) to the extent available to the Settlement System
Administrator, any design specification documents associated with
those documents described in paragraphs (a) and (b) above,
together with all authorised change requests associated with the
relevant design specification;
(d) any program and/or user guides prepared to assist in the
day-to-day operation and future development of the computer
programs (including records of test cases together with the
associated test input and output data used for validation
purposes);
(e) any relevant test strategy schedules and acceptance test
schedules as specified for functional and operational end to end
testing;
(f) any relevant test acceptance certificates and reports for
all tests recording comments and observations made on the
appropriate test where such tests are commissioned by the
Settlement System Administrator;
(g) any relevant client acceptance certificates and Pool
Auditor's reports, together with any reports recording such
clients' and the Pool Auditor's observations and comments on the
tests;
(h) any relevant compilation or detailed operating procedures
required in connection with any of the relevant paragraphs in
this Clause 45.1.2;
(i) all Software licences for Licensed Application Software (as
defined in Schedule 4); and
(j) a list detailing all versions of Licensed Application
Software (including operating systems and compilers) used in
creating each version of the object code detailing the version
numbers used and any program temporary fixes or equivalent mode,
(together the "Material").
If, after the consultation with the Settlement System
Administrator, the Executive Committee shall so request:
(A) the Settlement System Administrator shall use its reasonable
endeavours (which may include the payment of a fee or further fee
recoverable through the Charging Procedure) to procure that any
licence for any Licensed Application Software is on terms or
amended terms that permit the deposit of such Licensed
Application Software with a reputable software escrow agent
approved by the Executive Committee on the terms of an escrow
agreement approved by the Executive Committee and the Settlement
System Administrator (in the case of the Settlement System
Administrator such approval not to be unreasonably withheld), and
(B) NGC shall use its reasonable endeavours to procure that any
licence for any Licensed Application Software licensed by it to
the Settlement System Administrator is on terms or amended terms
that permit the deposit of such Licensed Application Software
with a reputable software escrow agent approved by the Executive
Committee on the terms of an escrow agreement approved by the
Executive Committee and NGC (in the case of NGC such approval not
to be unreasonably withheld).
45.2 Updating: The Settlement System Administrator shall ensure
that the Material deposited with the Custodian is kept fully up-
to-date and reflects all Modifications (as defined in the Escrow
Agreement) and shall deposit a copy of all Modifications with the
Custodian as soon as the same are available, all in accordance
with the terms and subject to the conditions of the Escrow
Agreement.
45.3 Notification to Executive Committee: The Settlement System
Administrator shall notify the Executive Committee promptly of
the delivery of each Modification to the Custodian.
45.4 Amendments: Any amendment to or variation of the Escrow
Agreement shall be made in accordance with tits terms provided
that the Settlement System Administrator shall not make or agree
to any such amendment or variation without the prior written
consent of the Executive Committee.
46 [Not used]
PART IX
THE POOL AUDITOR AND SCHEDULING AND DESPATCH REVIEWS
47 THE POOL AUDITOR AND SCHEDULING AND DESPATCH REVIEWS
47.1 Appointment and removal: The Executive Committee shall
(after consultation with the Settlement System Administrator)
from time to time appoint a firm of accountants of
internationally recognised standing to carry out:
47.1.1 audits of the calculations and allocations performed by
the Settlement System, such audits to be carried out annually;
47.1.2 audits of the Funds Transfer System, such audits to be
carried out annually;
47.1.3 tests and/or checks on new items or versions of
Software;
47.1.4 reviews of Agreed Procedures and Codes of Practice, as
required from time to time by the Executive Committee; and
47.1.5 audits, reviews, tests and/or checks of such other
matters as are otherwise designated under this Agreement for
reference to it and, where not so designated, such other audits,
reviews, tests and/or checks as the Executive Committee may from
time to time reasonably require( having regard, in particular, to
the disruptive effect of the same on the business and operations
of the Parties),
and to assist, upon request of the Executive Committee, in the
preparation of Works Programmes pursuant to Clause 5.9.
The Executive Committee shall have the right at any time and from
time to time (after consultation with the Settlement System
Administrator) to remove from office as Pool Auditor any firm of
accountants so appointed by it, but the Executive Committee shall
ensure that there shall at all times be a Pool Auditor.
47.2 Scheduling and Despatch Review:
47.2.1 The Grid Operator shall (after consultation with the
Executive Committee) decide upon the appointment from time to
time of such firm of accountants of internationally recognised
standing as the Executive Committee shall approve (such approval
not to be unreasonably withheld or delayed) to carry out reviews
("Scheduling and Despatch Reviews") of the Scheduling and
Despatch processes under the Grid Code, such reviews to be
carried out, until the first anniversary of the Effective Date,
at such time or times as shall be agreed between the Grid
Operator and the Executive Committee and, thereafter, annually.
The objective and scope of each such review is set out in
Schedule 19.
47.2.2 The Grid Operator shall have the right at any time and
from time to time (after consultation with the Executive
Committee) to decide upon the removal from office of the firm of
accountants so appointed by it with the consent of the Executive
Committee (such consent not to be unreasonably withheld or
delayed).
47.2.3 The auditor carrying out the Scheduling and Despatch
Review shall report to the Grid Operator.
47.3 Scope of Work:
47.3.1 The terms of engagement and scope of the work to be
carried out by the Pool Auditor shall be in accordance with the
terms of this Agreement and as determined from time to time by
the Executive Committee (after consultation with the Pool Auditor
and, where appropriate, the Settlement System Administrator or
the Pool Funds Administrator) and the Pool Auditor shall report
to the Executive Committee. The Executive Committee shall, upon
request, provide each Pool Member, the Director, any Party which
has applied pursuant to Clause 8.2 to become a Pool member and
(as appropriate) the Settlement System Administrator or the Pool
Funds Administrator with a copy of such terms of engagement.
47.3.2 Any opinion or report of the auditor carrying out the
Scheduling and Despatch Review shall be addressed to the Grid
Operator (for its own benefit) and a copy thereof shall be sent
to the Executive Committee and to each Pool Member, the Director,
the Settlement System Administrator and the Pool Funds
Administrator (each of whom shall be entitled to rely on it).
47.4 Notification of disputes: Upon written request of the Pool
Auditor or, where the dispute relates to Scheduling and Despatch,
the auditor carrying out the Scheduling and Despatch Review, a
Party shall promptly provide the Pool Auditor or (as the case may
be) the auditor carrying out the Scheduling and Despatch Review
with a written statement of all disputes under or in connection
with this Agreement or any Ancillary Services Agreement which are
then outstanding and which involve such Party or which the
relevant Party believes may arise and are likely to involve such
Party, and (subject to any supervening obligations of
confidentiality binding on such party) such statement shall
include reasonable details of each such dispute.
48 AUDIT INSTRUCTIONS
48.1 Frequency:
48.1.1 Audits, tests, reviews and checks pursuant to Clause
47.1 shall be carried out at such time or times as the Executive
Committee shall determine (after consultation with the Pool
Auditor and, where appropriate, the Settlement System
Administrator or the Pool Funds Administrator) and any such
audit, test, review or check shall relate to such period(s) as
the Executive Committee and the Pool Auditor shall agree.
48.1.2 The review pursuant to Clause 47.2 shall be carried out
at such time or times as the Grid Operator shall determine and
the Executive Committee shall approve (such approval not to be
unreasonably withheld or delayed).
48.1.3 In good time before each annual general meeting of Pool
Members:
(a) the Executive Committee shall instruct the Pool Auditor to
prepare the report referred to in Clause 9.1.2; and
(b) the Grid Operator shall instruct the auditor carrying out
the Scheduling and Despatch Review to prepare the report referred
to in Clause 47.2.3.
48.2 Opinions and reports: Any opinion or report of the Pool
Auditor required by the Executive Committee shall be addressed to
the Executive Committee for the benefit of all Pool Members and
to such other person(s) as the Executive Committee may direct and
a copy thereof shall be sent by the Executive Committee to each
Pool Member and the Director and, if requested and the Executive
Committee approves, the Settlement System Administrator and the
Pool Funds Administrator shall be entitled to rely upon the same
in any legal proceedings (including arbitration)).
48.3 Concerns and recommendations:
48.3.1 In instructing the Pool Auditor in respect of any of
the matters referred to in Clause 47.1 the Executive Committee
shall require the Pool Auditor:
(a) forthwith to report any material concerns with respect to
matters the subject of the relevant audit, test, review and/or
check; and
(b) to make such recommendations as to changes in the
procedures, controls and/or audit coverage as the Pool Auditor
considers appropriate.
Upon receipt of any such report or recommendation the Executive
Committee shall, after consultation with the Settlement System
Administrator or (in the case of the review referred to in Clause
47.1.2) the Pool Funds Administrator, prepare and send or cause
to be prepared and sent a report to Pool Members, the Pool
Auditor and the Director and the Settlement System Administrator
or (as the case may be) the Pool Funds Administrator enclosing a
copy of the Pool Auditor's report or recommendation. The
Executive Committee shall instruct the Settlement System
Administrator or (as the case may be) the Pool Funds
Administrator to carry out such corrective action as the Pool
Members in general meeting may approve or (where such approval is
not required by the terms of this Agreement) as the Executive
Committee may resolve consequent upon receipt of the Executive
Committee's report ( which the Settlement System Administrator
and the Pool Funds Administrator undertake promptly to do).
48.3.2 In instructing the auditor in respect of the Scheduling
and Despatch Review the Grid Operator shall require the auditor
to make the reports and recommendations referred to in Clauses
48.3.1(a) and (b). Upon receipt of a copy of any such report or
recommendation the Executive Committee shall, after consultation
with the Settlement System Administrator and the Grid Operator,
prepare or send or cause to be prepared and sent a report to Pool
members, the auditor carrying out the Scheduling and Despatch
Review and the Settlement System Administrator enclosing a copy
of the report or recommendation. The Executive Committee may
instruct the Grid Operator to carry out such corrective action as
may be reasonable and practicable in all the circumstances and
which is consistent with the Grid Code which the Pool Members in
general meeting shall approve.
48.4 Access:
48.4.1 To the extent that the Pool Auditor reasonably requires
in order to be satisfied that the Pool Funds Administrator is
complying with its obligations under this Agreement and the
Agreed Procedures, the Pool Funds Administrator shall permit the
Pool Auditor unrestricted access to its operation of the Funds
Transfer System, the Funds Transfer Hardware and the Funds
Transfer Software and all data used, information held and records
kept by the Pool Funds Administrator or its agents in the conduct
of that operation and shall make available members of its staff
to explain such operation and such other issues as the Pool
Auditor considers relevant.
48.4.2 The Grid Operator shall permit the auditor carrying out
the Scheduling and Despatch Review unrestricted access to that
part of its business as relates to Scheduling and Despatch and
the operation of BPS GOAL and all data used, information held and
records kept by the Grid Operator in the conduct of such business
and shall make available members of its staff to explain such
operations and such other issues as the auditor considers
relevant.
48.5 Costs:
48.5.1 The costs of any corrective action on the part of the
Settlement System Administrator pursuant to Clause 48.3.1 shall
be as agreed between the Pool Auditor and the Executive Committee
(after consultation with the Settlement System Administrator) and
shall be borne in accordance with the PFA Accounting Procedure.
48.5.2 The costs of any audit, test, review or check pursuant
to Clause 47.1.1 to 47.1.5 (Inclusive) and any corrective action
on the part of the Pool funds Administrator pursuant to Clause
48.3.1 shall be as agreed between the Pool Auditor and the
Executive Committee (after consultation with the Pool Funds
Administrator in the case of any such corrective action) and
shall be borne by the Pool Funds Administrator and recovered by
it in accordance with the PFA Accounting Procedure.
48.5.3 The costs of any review pursuant to Clause 47.2 and any
corrective action on the part of the Grid Operator pursuant to
Clause 48.3.2 shall be borne by the Grid Operator.
48.6 Conflict: The Executive Committee shall require the Pool
Auditor and the auditor carrying out the Scheduling and Despatch
Review to disclose to the Executive Committee the existence and
nature of all audit assignments with any Party.
48.7 Own auditors' review: Each Pool Member may request of the
Executive Committee that its own external auditors be permitted
to liaise with the Pool Auditor and the auditor carrying out the
Scheduling and Despatch Review in accordance with normal
professional standards, including provision of access to working
papers. The Executive Committee shall take such steps as may
reasonably be required of it to ensure that each of the Pool
Auditor and the auditor carrying out the Scheduling and Despatch
Review co-operates accordingly (subject to Clause 48.9).
48.8 Pool Auditor's rights: The Pool Auditor shall be entitled
to attend and speak at meetings of the Executive Committee and at
general meetings and separate general meetings of Pool Members.
The Pool Auditor shall be entitled to resign upon giving prior
notice to the Executive Committee (the period of such notice (if
any) to be set out in the terms of its appointment). Should the
Pool Auditor resign, be removed from office or not be reappointed
the Pool Auditor shall have the right to communicate directly
with Pool Members if it believes there are matters which should
be brought to their attention.
48.9 Confidentiality:
48.9.1 The Pool Auditor shall as a condition precedent to its
appointment execute a confidentiality undertaking in favour of
each of the Settlement System Administrator, the Pool Funds
Administrator, the Grid Operator and the Ancillary Services
Provider and the Executive Committee on behalf of all Pool
Members in such form as may be reasonably required from time to
time by the Executive Committee.
48.9.2 The auditor carrying out the Scheduling and Despatch
Review shall as a condition precedent to its appointment execute
a confidentiality undertaking in such form as may be reasonably
required from time to time by the Grid Operator and which shall
be approved by the Executive Committee (such approval not to be
unreasonably withheld or delayed).
48.9.3 If requested by the Settlement System Administrator,
the Pool Funds Administrator, the Grid Operator or the Ancillary
Services provider, the auditor carrying out the Scheduling and
Despatch Review shall execute a confidentiality undertaking in
favour of the relevant one of them in such form as the Executive
Committee may from time to time approve (such approval not to be
unreasonably withheld or delayed).
48.10 Scheduling and Despatch Auditor: The auditor appointed
to carry out the Scheduling and Despatch Review shall be entitled
to attend and speak at meetings of the Executive Committee and at
general meetings and separate general meetings of Pool Members
where matters relating to Scheduling and Despatch are to be
discussed or considered. The auditor shall be entitled to resign
upon giving prior notice to the Grid Operator (who shall send a
copy forthwith to the Executive Committee) (the period of such
notice, if any, to be as set out in the terms of its
appointment). Should the auditor resign, be removed from office
or not be reappointed it shall have the right to communicate
directly with Pool Members if it believes that there are matters
which should be brought to their attention.
PART X
THE GRID OPERATOR'S RESPONSIBILITIES
49 RESPONSIBILITIES
The Grid Operator shall have the following duties,
responsibilities and obligations under this Agreement:
49.1 PORTHOLE: Ensuring that, insofar as relevant to the
operation of the Settlement System and the Pool Rules, PORTHOLE
will in its operation comply with its user and functional
specifications.
49.2 Services: Making available to any successor Settlement
System Administrator those services necessary for the proper
functioning of the Settlement System which the Grid Operator made
available to the incumbent Settlement System Administrator at any
time in the twelve month period prior to the resignation or
removal of such incumbent Settlement System Administrator, in any
such case upon such terms as may be agreed between the Grid
Operator, such successor Settlement System Administrator and the
Executive Committee.
49.3 Generally: Such other duties, responsibilities and
obligations as are set out in this Agreement.
50 STANDARD OF CARE
50.1 Standard of care: In the exercise of its duties and
responsibilities under this Agreement the Grid Operator shall
exercise that degree of care, diligence, skill and judgment which
would ordinarily be expected of a reasonably prudent operator of
the NGC Transmission System taking into account the circumstances
actually known to the Grid Operator, its officers and employees
at the relevant time or which ought to have been known to it or
them had it or they made such enquiries as were reasonable in the
circumstances.
50.2 Miscellaneous:
50.2.1(a) The Grid Operator shall be entitled to rely upon any
direction or instruction of the Executive Committee or the Chief
Executive (if any) if the same is signed by way of authority in
accordance with Clause 50.2.4 on behalf of two or more Committee
members or on behalf of the Chief Executive and shall not be
obliged to comply with any direction or instruction of any sub-
committee of the Executive Committee or any delegate of the
Executive Committee other than the Chief Executive (unless such
direction or instruction is shown as having been ratified by the
Executive Committee).
50.2.1(b) The Grid Operator shall be entitled to rely upon any
communication or document reasonably believed by it to be genuine
and correct and to have been communicated or signed by the person
by whom it purports to be communicated or signed and shall not be
liable to any of the Parties for any of the consequences of such
reliance.
50.2.2 Compliance with the Director's directions: No
liability whatsoever shall attach to the Grid Operator as a
result of due compliance by it with any directions and
instructions of the Director, provided that in complying with
such directions and instructions the Grid Operator is at all
times acting in good faith.
50.2.3 Prior approval: Where by terms of this Agreement the
Grid Operator is required to obtain the prior directions,
instructions, approval or consent of the Executive Committee or
the Chief Executive, the Grid Operator shall have no authority
to, and shall not, act unless the requisite directions,
instructions, approval or consent have first been obtained.
Notwithstanding the foregoing sentence, nothing in this Agreement
shall prevent the Executive Committee from ratifying any act of
the Grid Operator.
50.2.4 Express authority: All directions and instructions of
the Executive Committee or the Chief Executive to the Grid
Operator shall, as between the Grid Operator and the Pool
Members, be deemed to have the express authority of, and shall be
binding without reservation upon, all Pool Members.
50.2.5 Authority of Pool Members: The Grid Operator shall not
be bound to act in accordance with the directions or instructions
of the Pool Members unless the Pool Members act through the
Executive Committee.
50.2.6 General Meetings: The Grid Operator shall not be
obliged to take any steps to ascertain whether any resolution of
Pool Members in general meeting or of any class of Pool Members
in separate general meeting which it is advised by the Executive
Committee or the Chief Executive as having been passed was in
fact passed or passed by the requisite majority and until the
Grid Operator shall have express written notice to the contrary
form the Executive Committee or the Chief Executive it shall be
entitled to assume that the relevant resolution was passed or (as
the case may be) the relevant requisite majority was obtained.
50.2.7 Exceptions: Notwithstanding the foregoing provisions
of this sub-clause 50.2, in the performance of its duties and
responsibilities under this Agreement the Grid Operator shall not
be bound to act in accordance with the directions or instructions
of the Executive Committee or the Chief Executive if:
(a) to do so would cause the Grid Operator to breach any of its
obligations under the Act or its Transmission Licence; or
(b) the Grid Operator has reasonable grounds for believing that
it would so breach any of such obligations and has consulted the
Director and:
(i) the Director has not indicated that in his view it would not
involve any such breach; or
(ii) the Director has indicated that, notwithstanding any such
actual or potential breach, the Director would not be minded to
enforce compliance with those obligations and the Grid Operator
has received an indemnity reasonably satisfactory to it in
respect of its acting in accordance with such directions and
instructions.
In any such event the Grid Operator shall promptly notify
the Executive Committee.
50.2.8 Reference to the Director: If at any time the Grid
Operator has a concern which is properly and reasonably founded
that, in acting in accordance with any direction or instruction
of the Executive Committee or the Chief Executive, it will breach
one or more of its obligations under the Act or its Transmission
Licence, then, if having discussed the matter with the Executive
Committee the matter remains unresolved, the Grid Operator shall
either comply with such direction or instruction or by notice in
writing refer the same to the Director, such notice to set out in
full the directions or instructions given to the Grid Operator
and the grounds for such concern and to be copied to the
Executive Committee. Pending any guidance from the Director in
response to any such reference is misconceived, vexatious or in
or in respect of an improperly or unreasonably founded concern,
the Grid Operator shall not be liable to any of the other Parties
for refusing to act in accordance with the relevant direction or
instruction. If the Director shall express such a view, the Grid
Operator shall be so liable.
PART XI
ANCILLARY SERVICE AND THE ANCILLARY SERVICES PROVIDER
51 ANCILLARY SERVICES
51.1 Obligations: The obligations of the Ancillary Services
Provider and the Grid Operator pursuant to this Clause 51 shall
be owed to each and every Supplier.
51.2 Obligations of Ancillary Services Provider: The Ancillary
Services Provider shall:
51.2.1 implement, maintain and operate all such systems as are
necessary to enable it properly to carry out the Ancillary
Services Business in accordance with the Transmission Licence;
51.2.2 operate the Ancillary Services Business in an efficient
and economic manner;
51.2.3 maintain such records, data and other information as
the Pool Auditor may from time to time by notice in reasonable
detail to the Ancillary Services Provider reasonably require for
the purposes of this Part XI or as may otherwise be reasonably
necessary to enable the Ancillary Services Provider to comply
promptly and fully with its obligations under this Agreement;
51.2.4 retain in electronic or machine readable form for a
period of not less than eight years (or such longer period as the
Pool Auditor may from time to time reasonably require), copies of
all records, data and information referred to in Clause 51.2.3 in
respect of the Ancillary Services;
51.2.5 provide to the Settlement System Administrator who
shall promptly provide the same to each Supplier monthly and
annual statements giving aggregate payment details separately in
respect of each of the following items:
(a) Reactive Energy;
(b) frequency control;
(c) Black Start Capability (as defined in the Grid Code);
(d) lost opportunity costs;
(e) supplies of Ancillary Services to Externally Interconnected
Parties;
(f) adjustments for disputes which have been settled or
otherwise determined; and
(g) the Ancillary Services Provider's business charges.
together with a statement of the sum of all such items, and each
of the Parties agrees to such information being so provided;
51.2.6 not transfer or seek to transfer any of its duties or
responsibilities as Ancillary Services Provider save to NGC's
successor as Grid Operator where NGC is removed as Grid Operator
(but not further or otherwise);
51.2.7 upon a successor Grid Operator being appointed (so far
as it is able), transfer to such successor all data, records,
other information, assets, equipment, facilities, rights and
know-how which it has (excluding freehold and leasehold real
property) and which are necessary to carry out the duties and
responsibilities of the Ancillary Services Provider and which are
not otherwise readily obtainable by such successor including all
original and copy material relating to the same and, in
consideration for such transfer, the Suppliers shall jointly and
severally pay to the Ancillary Services Provider a reasonable sum
to reflect the costs of, and the costs of transferring, such
material, such sum to be determined pursuant to Clause 83 in
default of agreement between the Suppliers and Ancillary Services
Provider; and
51.2.8 ensure that all agreements or arrangements for the
provision of Ancillary Services to Externally Interconnected
Parties are on the best commercial terms reasonably available.
51.3 Obligations of Suppliers: Each Supplier shall pay the
Ancillary Services Provider the amount allocated to such Supplier
for Ancillary Services in any Settlement Period for Ancillary
Services in accordance with this Agreement.
51.4 Obligation of Grid Operator: The Grid Operator shall
enforce the Master Connection and Use of System Agreement and
each Supplemental Agreement (insofar as it concerns the provision
of Ancillary Services) in accordance with their respective terms
in all circumstances in which it is reasonable to do so having
regard to its obligations under the Act, the Transmission Licence
and the Grid Code.
51.5 Audit of Ancillary Services:
51.5.1 The Suppliers may require the Pool Auditor to carry out
audits, tests, checks or reviews in relation to the operation by
the Ancillary Services Provider of the Ancillary Services
Business as Suppliers may from time to time reasonably require
(having regard, in particular, to the disruptive effect of the
same o n the business and operations of the Ancillary Services
Provider). The terms of engagement for any such audit, test,
check or review shall be made available to the Ancillary Services
Provider.
51.5.2 The Suppliers shall not require more than two audits,
tests, checks and reviews pursuant to Clause 51.5.1 in any
Accounting Period.
51.5.3 On instructing the Pool Auditor pursuant to Clause
51.5.1, the Supplier(s) concerned may require the Pool Auditor:
(a) forthwith to report any material concerns with respect to
matters the subject of the relevant audit, test, check or review;
and
(b) to make such recommendations as to changes in the
procedures, controls and/or audit coverage of the Ancillary
Services Business as the Pool Auditor considers appropriate.
51.5.4 The Ancillary Services Provider shall permit the Pool
Auditor such access to its Ancillary Services' operations and all
records, documents, data and other information (other than
Excluded Information) held by the Ancillary Services Provider in
the conduct of such operations in each case as the Pool Auditor
may reasonably require and shall make available members of its
staff to explain such operations and such other issues as the
Pool Auditor considers relevant. The Pool Auditor shall not
disclose and shall not be obliged to disclose to any Supplier
details of prices paid to each Generator by the Ancillary
Services Provider.
In this Clause 51.5 "Excluded Information" means all records,
documents, data and other information provided in the course of
the discussions or negotiations with any person with whom the
Ancillary Services Provider contracts or considers contracting
for the provision of Ancillary Services other than as stated in
any Ancillary Services Agreement whether such discussion or
negotiations take place before contracting or as part of any
price review during the term of any Ancillary Services Agreement.
51.1.5 The Pool Auditor shall report to the Suppliers and a
copy of any report by the Pool Auditor relating to an audit,
test, check or review pursuant to Clause 55.5.1 shall be provided
to the Ancillary Services Provider. The Pool Auditor shall owe a
duty of confidentiality to the Ancillary Services Provider save
to the extent necessary to carry out the particular audit, test,
check or review provided that any matter or thing set out in any
report to the Suppliers shall not be subject to any such
obligation and provided always that nothing in the Clause 51.5.5
shall prevent the disclosure of any information pursuant to
Clause 69. The Ancillary Services Provider shall be entitled to
rely on any such report in any legal proceedings (including
arbitration).
51.5.6 If the Suppliers so resolve, the Ancillary Services
Provider shall promptly implement any recommendations made by the
Pool Auditor in a report relating to an audit, test, check or
review pursuant to Clause 51.5.1 and, in the event of any
dispute, such dispute shall be referred to arbitration in
accordance with Clause 83.
51.5.7 The cost of any audit, test, check or review pursuant
to Clause 51.5.1 shall be borne by the requisitioning
Supplier(s). The costs of implementing any recommendations
pursuant to Clause 51.5.6 may be recovered by the Ancillary
Services Provider in accordance with the ASP Accounting
Procedure.
51.6 Basis of Payment: The Ancillary Services Provider shall
calculate the total amount payable under Ancillary Services
Agreements in respect of each Settlement Day together with any
amendments to calculations made for previous Settlement Days
based upon information derived from the Grid Operator and the
Settlement System Administrator. The charges to Suppliers for
Ancillary Services shall comprise the costs so calculated
together with the charges of the Ancillary Services Provider
calculated in accordance with Schedule 18. The Ancillary
Services Provider shall notify a provisional sum to the
Settlement System Administrator within three working days after
receipt of such information from the Grid Operator and the
Settlement System Administrator so as to be despatched by the
Settlement System Administrator to Suppliers in accordance with
the relevant Agreed Procedure to enable the Settlement System
Administrator to take into account the final Settlement Run for
each Settlement Day. Any unresolved amount shall be included in
the final Settlement Run on an interim basis pending resolution.
Thereafter it may be included (together with any errors or
omissions subsequently arising) in any appropriate Settlement
Run.
51.7 Lost opportunity costs:
51.7.1 Subject to Clause 51.6, where the Ancillary Services
Provider pays any Generator an amount in respect of lost
opportunity costs the Ancillary Services Provider shall use
reasonable endeavours to include any such amounts in its
Ancillary Service charge to Suppliers in the Settlement Day on
which it arises or as soon as possible thereafter.
51.7.2 As soon as the Ancillary Services Provider is notified
by any Generator that any obligation to pay any lost opportunity
costs may arise it shall consult the Suppliers and, without
prejudice to the Ancillary Services Provider's right to recover
such lost opportunity costs from Suppliers, if requested by the
Suppliers shall recover such lost opportunity costs over such a
period as may be agreed between the Ancillary Services Provider
and the Suppliers and, in default of agreement, over such period
as the Ancillary Services Provider considers to be reasonable.
51.8 Independent Contractor: The Ancillary Services Provider
shall act as an independent contractor in carrying out its duties
pursuant to this Agreement and (unless expressly authorised to
the contrary) shall neither act nor hold itself out nor be held
out as acting as agent for any of the Other Parties.
51.9 Standard of care: In the exercise of its duties and
responsibilities under this Agreement the Ancillary Services
Provider shall exercise that degree of care, diligence, skill and
judgment which would ordinarily be expected of a reasonably
prudent operator of the Ancillary Services Business taking into
account the circumstances actually known to the Ancillary
Services Provider, its officers and employees at the relevant
time or which ought to have been known to it or them had it or
they made such enquiries as were reasonable in the circumstances.
51.10 Miscellaneous:
51.10.1(a) The Ancillary Services provider shall be entitled
to rely upon any direction or instruction of the Executive
Committee or the Chief Executive (if any) if the same is signed
by way of authority in accordance with Clause 51.10.4 on behalf
of two or more Committee Members or on behalf of the Chief
Executive and shall not be obliged to comply with any direction
or instruction of any sub-committee of the Executive Committee or
any delegate of the Executive Committee other than the Chief
Executive (unless such direction or instruction is shown as
having been ratified by the Executive Committee);
51.10.1(b) The Ancillary Services Provider shall be entitled
to rely upon any communication or document reasonably believed by
it to be genuine and correct and to have been communicated or
signed by the person by whom it purports to be communicated or
signed and shall not be liable to any of the Parties for any of
the consequences of such reliance.
51.10.2 Compliance with the Director's directions: No
liability whatsoever shall attach to the Ancillary Services
Provider as a result of due compliance by it with any directions
and instructions of the Director, provided that in complying with
such directions and instructions the Ancillary Services Provider
is at all times acting in good faith.
51.10.3 Prior approval: Where by the terms of this Agreement
the Ancillary Services Provider is required to obtain the prior
directions, instructions, approval or consent of the Executive
Committee or the Chief Executive, the Ancillary Services Provider
shall have no authority to, and shall not, act unless the
requisite directions, instructions, approval or consent have
first been obtained. Notwithstanding the foregoing sentence,
nothing in this Agreement shall prevent the Executive Committee
from ratifying any act of the Ancillary Serves Provider.
51.10.4 Express authority: All directions and instructions of
the Executive Committee or the Chief Executive to the Ancillary
Services Provider shall, as between the Ancillary Services
Provider and the Pool Members, be deemed to have the express
authority of, and shall be binding without reservation upon, all
Pool Members.
51.10.5 Authority of Pool Members: The Ancillary Services
provider shall not be bound to act in accordance with the
directions or instructions of the Pool Members unless the Pool
Members act through the Executive Committee.
51.10.6 General Meetings: The Ancillary Services Provider
shall not be obliged to take any steps to ascertain whether any
resolution of Pool Members in general meeting or of any class of
Pool Members in separate general meeting which it is advised by
the Executive Committee or the Chief Executive as having been
passed was in fact passed or passed by the requisite majority and
until the Ancillary Services Provider shall have express written
notice to the contrary from the Executive Committee or the Chief
Executive it shall be entitled to assume that the relevant
resolution was passed or (as the case may be) the relevant
requisite majority was obtained.
51.10.7 Exceptions: Notwithstanding the foregoing provisions
of this sub-clause 51.10, in the performance of its duties and
responsibilities under this Agreement the Ancillary Service
Provider shall not be bound to act in accordance with the
directions or instructions of the Executive Committee or the
Chief Executive if:
(a) to do so would cause the Ancillary Services Provider to
breach any of its obligations under the Act or its Transmission
Licence; or
(b) the Ancillary Services Provider has reasonable grounds for
believing that it would so breach any of such obligations and has
consulted the Director and:
(i) the Director has not indicated that in his view it would not
involve any such breach; or
(ii) the Director has indicated that, notwithstanding any such
actual or potential breach, the Director would not be minded to
enforce compliance with those obligations and the Ancillary
Services Provider has received an indemnity reasonably
satisfactory to it in respect of its acting in accordance with
such directions and instructions.
In any such event the Ancillary Services Provider shall promptly
notify the Executive Committee
51.10.8 Reference to the Director: If at any time the
Ancillary Services Provider has a concern which is properly and
reasonably founded that, in acting in accordance with any
direction or instruction of the Executive Committee or the Chief
Executive, it will breach one or more of its obligations under
the Act or its Transmission Licence, then, if having discussed
the matter with the Executive Committee the matter remains
unresolved, the Ancillary Services Provider shall either comply
with such direction or instruction or by notice in writing refer
the same to the Director, such notice to et out in full the
directions or instructions given to the Ancillary Services
Provider and the grounds for such concern and to be copied to the
Executive Committee. Pending any guidance from the Director in
response to any such reference and, provided that the Director
shall not express any view that such reference is misconceived,
vexatious or in respect of an improperly or unreasonably founded
concern, the Ancillary Services Provider shall not be liable to
any of the other Parties for refusing to act in accordance with
the relevant direction or instruction. If the Director shall
express such a view, the Ancillary Services Provider shall be so
liable.
51.11 Suppliers' Resolutions: Where any matter is reserved
under this Part XI or Schedule 18 for the Suppliers to resolve,
that matter shall be decided upon by the majority vote of the
Suppliers' representatives on the Executive Committee.
51A TRANSMISSION SERVICES
It is expressly acknowledged by the Parties that neither (i) the
termination or expiry of the provisions of Clause 51A, 51B or 51C
of this Agreement as in force immediately prior to the coming
into effect of this Clause 51A, including the Transmission
Services Scheme ("TSS") (as therein defined) and/or any addition
to or amendment of any other provision of this Agreement effected
pursuant to those Clauses whilst in force nor (ii) the
termination or expiry of previous clauses in this Agreement which
related to UMIS2 (as was therein defined) shall prejudice any
Consumer's (as defined in the Pool Rules) or the Grid Operator's
(acting through its agent the Ancillary Services Provider)
accrued rights and liabilities under each of UMIS2 and/or TSS at
the date of such termination or expiry which accrued rights shall
include, for the avoidance of doubt, the ability to adjust sums
calculated under UMIS2 and/or TSS in respect of disputes arising
after such termination or expiry in respect of periods falling
before such termination or expiry.
51B TRANSMISSION SERVICES SCHEME 2
General:
51B.1 Notwithstanding any other provision of this Agreement,
the provisions of this Clause shall govern the rights and
obligations of the Parties in relation to the Transmission
Services Scheme 2.
51B.2 In Recital (G), this Clause 51B, Schedule 9 and
Schedule 11, for so long as amended by the provisions of Clause
51B.4, the term "Transmission Services Scheme 2" means the scheme
to provide an incentive for the Grid Operator to minimise (taking
into account other associated costs) a proportion of the costs
arising under this Agreement and/or resulting from the operation
of the NGC Transmission System including those arising form the
acquisition of Ancillary Services, and more particularly:
(a) which provides for payments between the Grid Operator
(acting through its agent the Ancillary Services Provider) and
Consumers in relation to:
(i) the Transmission Service Uplift Payment, which comprises a
Reactive Power Daily Payment, a Transport Uplift Daily Payment
and an Energy Uplift Daily Payment; and
(ii) the Transmission Losses Daily Payment; and
(b) which provides for an adjustment in relation to out of merit
costs,
in the form agreed pursuant to Clause 51B.6 as the same may be
amended from time to time in accordance with the terms of that
Clause.
51B.3 The Transmission Services Scheme 2:
(a) The Parties agree (and agree that they will procure that the
Executive Committee will so agree) that in the period from 00.00
hours on 1st April, 1996 to 24.00 hours on 31st March, 1997 the
Transmission Services Scheme 2, the amendments and/or additions
to the Pool Rules to implement the Transmission Services Scheme 2
and the provisions of this Clause, shall apply. This Clause
51B.3(a) may not be amended without the prior written consent of
all Parties.
(b) As indicated in Clause 51B.3(a), the provisions of Clause
51B, the Transmission Services Scheme 2 and any addition to or
amendment of any other provisions of this Agreement or the Pool
Rules effected pursuant to this Clause 51B shall terminate at
24.00 hours on 31st March 1997, except for any provision,
addition or amendment which is required to continue beyond that
date to give effect to the operation of the Transmission Services
Scheme 2 in respect of any period before that date.
51B.4 The Parties agree:
(a) to be bound by the terms, conditions and other provisions of
the Transmission Services Scheme 2;
(b) that the Grid Operator (acting through its agent the
Ancillary Services Provider) and each Consumer shall make such
payments as are required and determined by the provisions of the
amendments and/or additions to the Pool Rules to implement the
Transmission Services Scheme 2;
(c) that for the period during which this Clause 51.B applies,
the following changes shall be made to the provisions of this
Agreement:
(i) in paragraphs 1, 5.4, 5.14, 17.5 and 17.6 of Schedule 11
references to the Ancillary Services Provider shall be deemed to
be references to itself and as agent for the Grid Operator in
relation to the Transmission Services Scheme 2;
(ii) in paragraph 2.1 of Schedule 11 the words "and the
Transmission Services Scheme 2" shall be inserted after the words
"Ancillary Services";
(iii) in paragraph 5.14 of Schedule 11 the words "or in
respect of the Transmission Services Scheme 2" shall be inserted
after the first reference to "Ancillary Services" and the words
"or in respect of the Transmission Services Scheme 2 for the
relevant payment day" shall be inserted after the words "that
same day" and in paragraph 5.15 of Schedule 11 the words "or the
Ancillary Services Provider" shall be inserted after the words
"Pool Member" wherever they occur in that paragraph; and
(iv) in Part 4 of Schedule 11, references to information in
respect of Ancillary Services shall be deemed to include
information in respect of the Transmission Services Scheme 2, in
paragraph 17.5 the information required shall include the total
amount payable by the Ancillary Services Provider (exclusive of
United Kingdom Value Added Tax) pursuant to the Transmission
Services Scheme 2 in respect of each Settlement Day, in paragraph
17.6 the Pool Funds Administrator shall include in its
verification the amount shown to be payable by the Ancillary
Services Provider pursuant to the Transmission Services Scheme 2
in respect of each Settlement Day and in paragraph 22.4 the
Confirmation Notices shall include the total amount payable by
the Ancillary Services Provider pursuant to the Transmission
Services Scheme 2 in respect of each Settlement Day.
51B.5 The Suppliers and the Grid Operator may request the
Parties and the Executive Committee promptly (and in any event
before the date the Transmission Services Scheme 2 is to take
effect) to execute and do all such acts, matters and things
(including effecting amendments to the Pool Rules) as may be
necessary to give effect to the Transmission Services Scheme 2.
The Parties shall not refuse (and agree that they will procure
that the Executive Committee shall not refuse) any such request
on the grounds of any objections to any provisions of any of the
Annexes of Appendix 3 to the Pool Rules as agreed from time to
time between the Suppliers and the Grid Operator.
51B.6 Effectiveness:
Neither this Clause 51B (other than Clauses 51B.2, 51B.5 and this
Clause 51B.6), nor the Transmission Services Scheme 2, nor any
amendment, variation or replacement of either of them, nor any
amendment, variation or replacement to the Pool Rules relating to
the Transmission Services Scheme 2, may become effective except
with the prior agreement of the Suppliers (which agreement shall
be given by the passing of a resolution in a separate class
meeting) and the prior written agreement of the Grid Operator.
51B.7 Survival:
(a) Termination or expiry of the provisions of this Clause 51B,
the Transmission Services Scheme 2 and/or any addition to or
amendment of any other provision of this Agreement effected
pursuant to this Clause shall not prejudice any Consumer's or the
Grid Operator's accrued rights and liabilities under the
Transmission Services Scheme 2 at the date of such termination or
expiry, which accrued rights shall, for the avoidance of doubt,
include the ability to adjust sums calculated under the
Transmission Services Scheme 2 in respect of disputes arising
after such termination or expiry in respect of periods falling
before such termination or expiry; and
(b) the provisions of this sub-Clause 51B.7 and Clause 51B.3(b)
shall survive the termination of the Transmission Services Scheme
2.
51B.8 Definitions:
In, and in relation to, this Clause 51B "Consumer" shall bear the
meaning given to that term in the Pool Rules.
52 SETTLEMENT RE-RUNS
52.1 Re-runs: The Parties acknowledge and agree that there may
be occasions following any final run of Settlement (as referred
to in paragraph D(3) of the Preamble to Schedule 9) when it is
necessary in respect of a Settlement Day (or part thereof) to re-
determine the trades of electricity pursuant to this Agreement
and the provision of Ancillary Services (whether to take account
of oversight or error, malfunction of the Settlement System
operation in accordance with Grid Operator Despatch instructions
issued under emergency circumstances, aware of an arbitrator(s)
pursuant to Clause 83, court order or otherwise howsoever). The
Executive Committee, in consultation with the Settlement System
Administrator, the Pool Funds Administrator and the Pool Auditor
and, where appropriate, the Ancillary Services Provider, shall
decide how such re-determination is to be effected, the re-
allocation of moneys and the period of time over which any such
re-allocation is to take place, any such decision to take account
and give effect, as nearly as practicable, to the principles and
procedures set out in this Agreement (and, where relevant, the
award of the said arbitrator(s) or court order). In particular,
but without prejudice to the generality of the foregoing, the
Executive committee may require following any relevant final run
of Settlement (and, shall take due notice of any request from the
Ancillary Services Provider to this effect) the Settlement System
Administrator to re-run, and the Settlement System Administrator
shall re-run, Settlement in respect of any Settlement Day (or
relevant part thereof) using the software and data originally
used in respect of such Settlement Day (or relevant part thereof)
but subject to such changes, amendments or additional inputs as
may be required by the Executive Committee, the Ancillary
Services Provider, such arbitrator(s) or court or (as the case
may be) any other relevant Party. Any such re-run shall
hereafter in this Clause 52 be referred to as a "Re-run".
52.2 Timing: The Settlement System Administrator shall arrange
for any Re-run to be carried out as soon as is reasonably
practicable following request by the Executive Committee subject
to the availability of computer time, compatible software,
appropriate data and other resources.
52.3 Ancillary Services Provider: The Ancillary Services
Provider shall have the right to incorporate any delayed or
disputed amount in respect of the provision of Ancillary Services
into Settlement without requiring a Re-run.
52.4 Notification: The Executive Committee shall promptly notify
each Party, the Pool Auditor and the Director of each occasion on
which it requires the Settlement System Administrator to carry
out any Re-run, the reasons for such requirement, the timing
thereof and the period to be covered thereby and shall provide
each Party with such information about any Re-run as is relevant
to such Party and shall provide the Pool Auditor and the Director
with full details of any Re-run.
52.5 Proviso: The foregoing provisions of this Clause 52 are
subject to the proviso that no Re-run shall be carried out, and
neither the Executive Committee nor any Party shall be entitled
to require that a Re-run be carried out, in respect of a
Settlement Day or any part thereof after the first anniversary of
such Settlement Day, but so that this proviso shall not restrict
the right of any Party to claim or recover any moneys properly
due and owing to it under this Agreement.
PART XII
RISK MANAGEMENT SCHEME
53 APPLICATION
53.1 Request: The Executive Committee shall send any Pool Member
a Scheme Admission Application within 28 days after receipt of a
request for the same from that Pool Member.
53.2 Scheme Admission Application: Any Pool Member may apply to
the Executive Committee to have any Centrally Despatched
Generating Unit admitted to the Scheme by completing and
submitting to the Executive Committee a duly completed Scheme
Admission Application not less than 40 days before the proposed
date of admission to the Scheme of that Centrally Despatched
Generating Unit.
53.3 Admission: The Executive Committee shall admit any
Centrally Despatched Generating Unit to the Scheme in respect of
which all Scheme Admission Conditions are met.
53.4 Notification (1): If the Executive Committee determines
that, in respect of any Centrally Despatched Generating Unit, the
Scheme Admission Conditions have been met it shall forthwith and
in any event within 40 days after receipt of the Scheme Admission
Application notify the relevant Pool Member and the Settlement
System Administrator accordingly.
53.5 Notification (2): If the Executive committee determines
that, in respect of any Centrally Despatched Generating Unit, the
Scheme Admission Conditions have not been met it shall forthwith
and in any event within 40 days after receipt of the Scheme
Admission Application notify the relevant Pool Member of the
reasons why the Scheme Admission Conditions have not been met.
53.6 Reference to the Director: In the event of any dispute
between the Executive Committee and the relevant Pool Member over
whether such Pool Member has fulfilled the Scheme Admission
Conditions the same may be referred by the Executive Committee or
the relevant Pool Member to the Director for determination, whose
determination shall be final and binding for all purposes.
54 SCHEME ADMISSION CONDITIONS
The Scheme Admission Conditions are that:-
54.1 No person has an Accountable Interest in the Centrally
Despatched Generating Unit which is the subject of the Scheme
Admission Application which, when added to the Accountable
Interests of that person in other Generating Units (whether
situate within England and Wales or elsewhere), exceeds in
aggregate 1500MW;
54.2 The Pool Member does not have an Accountable Interest
(excluding any Accountable Interest of less than 10MW) in more
than four Generating Units (whether situate within England and
Wales or elsewhere). For the avoidance of doubt a combined cycle
module shall be deemed for these purposes a single Generating
Unit;
54.3 The Centrally Despatched Generating Unit which is the
subject of the Scheme Admission Application has not at the date
of the Scheme Admission Application been Commissioned;
54.4 The Centrally Despatched Generating Unit shall be admitted
for seven calendar years from the date of its admission to the
Scheme specified in the Scheme Admission Application; and
54.5 The Pool Member shall specify in the Scheme Admission
Application the proposed Scheme Planned Availability for each
Settlement Period in the proposed first Scheme Year for the
Centrally Despatched Generating Unit.
55 RIGHTS AND OBLIGATIONS OF POOL MEMBERS
55.1 Notification of unavailability: In respect of each Scheme
Year for each Scheme Genset (other than the first) the Pool
Member shall not later than 28 days before the start of that
Scheme Year for each Scheme Genset notify the Executive Committee
of all Settlement Periods in that Scheme Year during which the
Scheme Genset is intended to be unavailable.
55.2 Scheme Planned Availability: All Settlement Periods in that
Scheme Year other than those notified under Clause 55.1 shall
together constitute the Scheme Planned Availability in respect of
that Scheme Genset for that Scheme Year.
55.3 Failure to notify: If the Pool Member fails to notify the
Executive Committee in accordance with Clause 55.1 of the Scheme
Planned Availability in respect of that Scheme Genset for the
following Scheme Year, the Scheme Planned Availability shall be
deemed to be the same as the Scheme Planned Availability for the
current Scheme Year.
55.4 No amendment: The Scheme Planned Availability for any
Scheme Year notified in accordance with Clause 55.1 or deemed in
accordance with Clause 55.3 may not be amended.
55.5 Payment rights: The Pool Member shall make or be entitled
to receive payments in respect of each Scheme Genset as
determined in accordance with Section 27 of Schedule 9
notwithstanding the expiry of the period referred to in Clause
50.4
55.6 No withdrawal: The Pool Member may not withdraw any Scheme
Genset from the Scheme during any period referred to in Clause
50.4 applicable to that Scheme Genset.
55.7 Actual planned availability: In respect of each Scheme
Genset, the Pool Member shall use all reasonable endeavours to
ensure that the Scheme Planned Availability for each Scheme Year
is the actual planned availability of such Scheme Genset.
56 REVIEW
56.1 Review: Within two months after the end of the third Scheme
Year in respect of which the first Scheme Genset has been
admitted to the Scheme and each subsequent anniversary of that
date the Executive Committee shall (with the consent of the
Director) appoint an independent firm of accountants of
internationally recognised standing to review the Scheme to
establish whether or not any element of the Scheme (or the Scheme
taken as a whole) gives rise to a systematic imbalance which is
likely to prevent the payments to the Scheme balancing payments
from the Scheme and to submit to the Executive Committee and the
Director a report setting out details of any such imbalance and
his findings and recommendations for amending the Scheme designed
to correct any such imbalance.
56.2 Amendments: The Executive Committee may make such amendments
to the provisions of Section 27 of Schedule 9 as are required to
implement the recommendations referred to in Clause 56.1. Any
such amendments shall apply in respect of any Scheme Admission
Application received after the date such amendments become
effective and shall constitute a new Scheme.
56.3 Existing rights and obligations continue: Any Pool Member
shall remain entitled to the benefits and subject to the
obligations of the Scheme with respect to any Scheme Genset in
effect at the time of admission of that Scheme Genset to the
Scheme.
PART XIV
FUEL SECURITY
57 DEFINITIONS
Definitions: In this Part XIV:
"Fuel Security Interest" in relation to a particular Payment
Instruction means the interest (if any) accruing on the Fuel
Security Payment or Fuel Security Reimbursement specified in that
Payment Instruction pursuant to sub-clause 2.08 of Part 5 of the
Fuel Security Code;
"Fuel Security Ledger" means any ledger required to be
maintained by the Pool Funds Administrator in accordance with
Clause 59;
"Fuel Security Payment" means the amount specified in a
Payment Instruction which a Generator is entitled to recover from
those persons specified in that Payment Instruction (excluding
Fuel Security Interest, if any, in relation thereto);
"Fuel Security Reimbursement" means the amount specified in
a Payment Instruction which a Generator is liable to reimburse to
those persons specified in that Payment Instruction (excluding
Fuel Security Interest, if any, in relation thereto); and
"Payment Instruction" means an instruction which has been
duly authorised and delivered by a Generator to whom the Fuel
Security Code applies to the Pool Funds Administrator in the
form, and in the manner, specified in the Fuel Security Code.
58 PAYMENT INSTRUCTIONS
58.1 Effect of a Payment Instruction: Following delivery of a
Payment Instruction to the Pool Funds Administrator:-
58.1.1 any Fuel Security Payment specified in that
Payment Instruction.(together with any Fuel Security Interest in
relation thereto) shall be treated as an amount which is due to
that Generator from those persons specified in that Payment
Instruction and which is payable on the basis provided in that
Payment Instruction; and
58.1.2 any Fuel Security Reimbursement specified in that
Payment Instruction (together with any Fuel Security Interest in
relation thereto) shall be treated as an amount which is due from
that Generator to those persons specified in that Payment
Instruction and which is payable on the basis provided in that
Payment Instruction; and
58.1.3 subject to Clauses 58.2 and 58.3, the Pool Funds
Administrator shall arrange for such Fuel Security Payment or
such Fuel Security Reimbursement (together with any Fuel Security
Interest in relation thereto) to be paid to or, as the case may
be, paid by that Generator by or, as the case may be, to those
persons specified in that Payment Instruction in accordance with
the provisions of such Payment Instruction; and
58.1.4 such Payment Instruction (including any
calculation, determination or other matter stated or specified
therein) shall, save in the case of fraud, be conclusive and
binding upon all Parties.
58.2 Clarification: If the Pool Funds Administrator considers
either that the basis of payment of a Fuel Security Payment or a
Fuel Security Reimbursement provided for in a Payment Instruction
is unclear, contradictory or incomplete or that it is impossible
to implement in full the basis of payment provided for in a
Payment Instruction, then the Pool Funds Administrator must,
promptly on becoming aware of the same, notify the Director in
reasonable detail of the same and, until that matter is
clarified, the Pool Funds Administrator shall only be obliged to
implement the payment specified in that Payment Instruction to
the extent that without clarification such implementation is
possible.
58.3 Failure to specify or clarify: If a Payment Instruction
fails to specify the basis upon which the Fuel Security Payment
or a Fuel Security Reimbursement specified in that Payment
Instruction must be paid or if the Director fails to clarify any
matter notified to it in accordance with Clause 58.2 within ten
Business Days of such notification then the Pool Funds
Administrator shall arrange for the relevant payment to be made
on such basis as the Executive Committee shall, with the written
approval of the Director, determine to be appropriate.
59 RECORD KEEPING AND PAYMENTS
59.1 Fuel Security Ledgers:
59.1.1 Following delivery of a Payment Instruction to the
Pool Funds Administrator, the Pool Funds Administrator shall, if
he has not already done so, open and thereafter maintain a Fuel
Security Ledger in the name of that Generator and shall record
therein all amounts (together with any Fuel Security Interest in
relation thereto) due to and from that Generator that are
specified in Payment Instructions and shall also record therein
all transactions arranged by the Pool funds Administrator for
payments to be made to and from that Generator in accordance
with the provisions of Payment Instructions.
59.1.2 The Pool Funds Administrator shall from the time
that a Fuel Security Ledger is opened until it records a nil
balance provide to each Generator and to each Supplier on the
last Business Day of each calendar month a statement reflecting
all entries recorded in the Fuel Security Ledger of that
Generator over the course of the previous month.
59.1.3 The Fuel Security Ledger of a Generator shall,
except as required by Clause 59.2.2 or Part IX, be kept
confidential in accordance with Part XX.
59.1.4 Each monthly statement provided under Clause
59.2.2 shall, save in the case of manifest error, be deemed prima
facie evidence of the contents of that part of the Fuel Security
Ledger to which it relates.
59.1.5 Each Party shall promptly review each monthly
statement provided to it under Clause 59.2.2 and shall (without
prejudice to any of its rights under this Agreement) where
practicable within ten Business Days after receiving each such
statement notify the Pool Funds Administrator of any
inaccuracies in such statement of which it is aware.
59.1.6 If the Pool Funds Administrator at any time
receives from a Generator or any Supplier a notice disputing the
accuracy of the Fuel Security Ledger of that Generator, the Pool
Funds Administrator shall consult with the Party giving the
notice and use all reasonable endeavours to rectify any
inaccuracy. In the event that any inaccuracy in a Fuel Security
Ledger of a Generator is rectified, the Pool Funds Administrator
shall advise that Generator and the Suppliers of the inaccuracy
that was rectified.
59.2 Fuel Security Payments: Following delivery to the Pool
Funds Administrator of a Payment Instruction specifying a Fuel
Security Payment, the Pool Funds Administrator shall enter in the
Fuel Security Ledger of that Generator as a credit (a) the amount
of the Fuel Security Payment, and (b) thereafter, any Fuel
Security Interest in relation thereto.
59.3 Fuel Security Reimbursements: Following delivery to the
Pool Funds Administrator of a Payment Instruction specifying a
Fuel Security Reimbursement, the Pool Funds Administrator shall
enter in the Fuel Security Ledger of that Generator as a debit
(a) the amount of the Fuel Security Reimbursement, and (b)
thereafter, any Fuel Security Interest in relation thereto.
59.4 Other Entries: Any amount paid to or, as the case may be,
paid by a Generator in accordance with the provisions of a
Payment Instruction shall be entered as a debit or, as the case
may be, a credit in the Fuel Security Ledger of that Generator.
59.5 Set off: The Pool Funds Administrator shall, unless it
reasonably believes that it would be unlawful to do so, from time
to time where possible set off any amounts shown as credits in
the Fuel Security Ledger of a Generator against any amounts shown
as debits in the Fuel Security Ledger of that Generator in the
order in which they were entered. Any balance shown in the Fuel
Security Ledger of a Generator shall, if it is a credit, be paid
to or, if it is a debit, be paid by that Generator to the extent
that it relates to a Payment Instruction on the basis provided
for in that Payment Instruction. The entitlements and
liabilities of a Generator (and the corresponding liabilities and
entitlements of the respective debtors and creditors of that
Generator) shall, to the extent that they have been set off as
aforesaid, be deemed satisfied and extinguished.
59.6 Schedule 11: All payments made to or by any Generator in
accordance with the provisions of a Payment Instruction shall,
subject to any contrary instruction contained in the provisions
of a Payment Instruction, be effected by the Pool Funds
Administrator through the Banking System and the Billing System
established in accordance with Schedule 11.
PART XV
METERING
60 METERING
60.1 Introduction: The rights and obligations of each Party of
this Agreement which enable the accurate measurement of Energy
traded for the purposes of this Agreement by appropriate metering
installations are as set out in this Part XV and also in Schedule
21, and the provisions of Schedule 21 shall have effect and apply
in the same manner as the remaining provisions of this Agreement
apply with respect to each such Party.
60.2 General:
60.2.1 For the purposes of this Agreement the quantities
of Active Energy and Reactive Energy Exported or Imported by
Parties shall be measured and recorded through Metering Equipment
installed, operated and maintained and otherwise provided for as
set out in this Part XV and in Schedule 21. Each Generating Unit
(excluding for this purpose Generation Trading Blocks) which is
subject to Central Despatch shall have separate Metering
Equipment.
60.2.2 Each Party is required to register or procure that
there is registered with the Settlement System Administrator the
Metering System at each Site where such Party Exports or Imports
electricity except where such electricity is not sold or
purchased in accordance with the Pool Rules.
60.3 Registrants:
60.3.1 A Metering System shall have a Registrant and
Operator (and shall be commissioned in accordance with the
relevant Code of Practice) before the Settlement System
Administrator is required to take such Metering System and the
data derived therefrom into account for the purposes of
Settlement.
60.3.2 Each Metering System (and the identities of its
respective Registrant and Operator) which the Settlement System
Administrator shall take into account for the purposes of
Settlement shall be as set out, for the time being and from time
to time, in the Register.
60.3.3 A Registrant's role in relation to a Metering
System under this Agreement shall continue until:-
(i) such Registrant ceases to be a Party or another Party
complying with the definition of Registrant accepts such role as
Registrant in accordance with the provisions of this Agreement by
service of a duly completed notice in the form prescribed by the
relevant Agreed Procedure (but without prejudice to any accrued
liabilities of the previous Registrant); or
(ii) the Plant or Apparatus of the Registrant, in respect of such
Metering System, ceases to be connected at the relevant Site (as
indicated in the notification to the Settlement System
Administrator in the form prescribed by the relevant Agreed
Procedure); or
(iii) in the case of a Registrant of a Metering system which
is at the point of connection between a Public Electricity
Supplier's Distribution System and a Second Tier Customer, the
Registrant ceases to act as Second Tier Supplier in relation to
the same at such point of connection; or
(iv) in the case of a Registrant of a Metering System which is at
the point of connection between a Public Electricity Supplier's
Distribution System and a Non-Pooled Generator, the Registrant
ceases to act as Second Tier Supplier purchasing generation from
such Non-Pooled Generator in relation to the same at such point
of connection.
60.3.4 The Settlement System Administrator shall inform
the relevant Host PES of:-
(i) the identity of any new Registrant; and
(ii) any change in the identity of any existing Registrant,
of a Metering System in respect of which that Public Electricity
Supplier is Host PES, after such change is notified to the
Settlement system Administrator in accordance with the terms of
this Agreement.
60.3.5 There must always be one and, at any point in
time, no more than one Registrant for each Metering System which
is registered with the Settlement System Administrator.
60.3.6 Any notice of a new, or a change in an existing,
Registrant, Equipment Owner Operator, Second Tier Customer, Non-
Pooled Generator or Host PES or any Form of Acknowledgment
required under this Part XV or Schedule 21 shall be in such form
and given to such person at such time(s) and accompanied by
payment of such fees (if any) as is prescribed by the relevant
Agreed Procedures.
60.3.7 If a Metering System ceases to have a Registrant
who is not replaced as Registrant in relation to the relevant
Metering Equipment, the Settlement System Administrator shall not
be obliged to take the relevant Metering System into account for
the purposes of Settlement.
60.3.8 A Registrant may not resign or retire as
Registrant except in accordance with Clause 60.3.3.
60.3.9 The Registrant in respect of any Metering system
shall provide to the Settlement System Administrator such
information as may be required by the relevant Agreed Procedures.
60.3.10 The Settlement System Administrator shall not
enter on the Register a Registrant in respect of which evidence
of consent of the Equipment Owner has not been provided in
accordance with the relevant Agreed Procedure.
60.3.11 Where a Metering System at the point of connection
of two or more Distribution Systems is to be registered with the
Settlement System Administrator, all interested Parties shall
agree upon and nominate the Registrant by means of a duly
completed nomination to the Settlement System Administrator in
the form prescribed by the relevant Agreed Procedure.
60.3.12 A Metering System for recording the output of a
Non-Pooled Generator must be capable of being identified
separately for the purposes of Settlement from any Metering
System recording demand. For the avoidance of doubt, it is
acknowledged that one set of Metering Equipment may comprise
more than one separately-identified Metering System.
60.4 Operators:
60.4.1 There must always be one and, at any point in
time, no more than one Operator for each Metering System which is
registered with the Settlement System Administrator. A
replacement Operator of such Metering System may be appointed
from time to time in accordance with the provisions of this Part
XV, Schedule 21 and the relevant Agreed Procedure.
60.4.2 All Metering systems at the site of a Non-Pooled
Generator, which contain all or any part of the same Metering
Equipment must have the same Operator.
60.4.3 Any notice of a new Operator or of a change in
Operator (including upon resignation, removal or cessation in
accordance with the provisions of Schedule 21) or any Form of
Acknowledgment required under this Part XV or Schedule 21 shall
be in such form and given to such person at such time(s) and
accompanied by payment of such fees (if any) as is prescribed by
the relevant Agreed Procedures. Where any Meter Operator Party
has not acknowledged its appointment as Operator the Settlement
System Administrator shall notify the Registrant in accordance
with the relevant Agreed Procedure.
60.4.4 The Registrant in respect of a Metering System
shall ensure that there is appointed from time to time an
Operator, which is a Meter Operator Party, in accordance with,
and for the purposes of, Schedule 21 as Operator in respect of
that Metering System.
60.4.5 If a person which is an Operator in respect of any
Metering System ceases to be an Operator in respect thereof for
whatever reason (including upon removal or resignation) or ceases
to be a Meter Operator Party (including upon removal or
resignation) and there has not been appointed, at that time, a
replacement Operator in respect of the relevant Metering
System(s) in accordance with the provisions of this Part XV and
Schedule 21, such person's responsibilities as Operator of such
Metering Equipment shall upon such cessation be assumed by the
Registrant in respect of such Metering Equipment who shall be
deemed to be the Operator therefor (notwithstanding that it shall
not be registered as such by the Settlement System Administrator)
in accordance with the provisions of this Clause (the "deemed
Operator").
60.4.6 If a person which is an Operator in respect of any
Metering System at the site of a Non-Pooled Generator ceases to
be an Operator in respect thereof for whatever reason (including
upon removal or resignation) or ceases to be a Meter Operator
Party (including upon removal or resignation) and there has not
been appointed, at that time, a replacement Operator in respect
of the relevant Metering System(s) in accordance with the
provisions of this Part XV and Schedule 21, such person's
responsibilities as Operator of the relevant Metering Equipment
shall upon such cessation be assumed by the Registrant of the
Metering System registered for supply with respect to such
Metering Equipment. Such Registrant shall be deemed to be the
Operator therefor (notwithstanding that it shall not be
registered as such by the Settlement System Administrator) in
accordance with the provisions of this Clause (the "Deemed
Operator").
60.4.7 As soon as any Registrant has reasonable grounds
to believe that an Operator of any Metering System in respect of
which it is the Registrant has ceased to act as Operator therefor
in accordance with substantially all of its responsibilities as
set out in Schedule 21 it shall remove such Operator in respect
of such Metering System in accordance with paragraph 6.1 of
Schedule 21.
60.4.8 If the Settlement System Administrator has
reasonable grounds to believe that an Operator of any Metering
system has ceased to act as Operator therefor in accordance with
substantially all of its responsibilities as set out in Schedule
21 the Settlement System Administrator shall notify the
Registrant in accordance with the relevant Agreed Procedure.
60.4.9 Any Registrant which is deemed to be the Operator
of a Metering System pursuant to the provisions of Clause 60.4.5
shall, subject to Clauses 60.4.10 and 60.4.11, continue to act as
the Operator in respect of any Metering System to which that
Clause applies, or shall appoint an agent or contractor which
shall continue to act as the Operator in respect of such Metering
System, for a period of 10 Business Days (which shall commence at
the time of the cessation referred to in Clause 60.4.4) or, if a
new Operator is registered in respect of that Metering System
prior to the expiry of that period, for a period ending on the
date of such registration.
60.4.10 If a Registrant to which Clause 60.4.9 applies
does not act as Operator in accordance with the provisions
thereof or does not appoint an agent or contractor who shall act
as Operator, or if the 10 Business day period referred to in
Clause 60.4.9 shall expire without a replacement Operator being
registered with the Settlement System Administrator in respect of
that Metering System in accordance with paragraph 4 of Schedule
21, that Registrant shall:-
(i) undertake to cease forthwith to supply or to generate or
take a supply of electricity for the purposes of the sale or
acquisition of electricity pursuant to this Agreement at the site
where such supply or generation is measured, recorded and
communicated to the Settlement System Administrator by that
Metering System; and
(ii) notify the Settlement System Administrator in accordance
with the relevant Agreed Procedure of that fact.
60.4.11 During the period in which a Registrant is the
deemed Operator in accordance with this clause it shall be
required (save only as expressly provided to the contrary in this
Agreement) to comply with the requirements of this Part XV and
Schedule 21 as Operator provided that, but without prejudice to
any liability to pay for Active or Reactive Energy traded by it,
such Registrant as deemed Operator:-
(i) shall not be required to be registered as Operator with the
Settlement System Administrator nor to comply with the prescribed
conditions for registration as Operator from time to time in
accordance with the provisions of Schedule 21; and
(ii) shall not at any time when it is the deemed Operator be
required to incur significant capital expenditure in the
fulfillment of obligations contained in this Part XV or Schedule
21 where:-
(a) the Metering Equipment shall have become defective,
inaccurate or in want of repair (the "defective Metering
Equipment") as a direct consequence of the act or omission of any
previous Operator;
(b) the Registrant shall upon becoming aware of the same have
taken all steps to cease forthwith to supply or to generate
electricity for the purposes of the sale or acquisition of
electricity pursuant to this Agreement at or in relation to the
site where such supply or generation is measured, recorded and
communicated to the Settlement System Administrator by the
defective Metering Equipment; and
(c) the Registrant shall have notified the Settlement System
Administrator in accordance with the relevant Agreed Procedure of
the fact that the supply or generation has ceased.
Where (x) the Settlement System Administrator proposes to
exercise its right under paragraph 18 of Schedule 21 to replace,
renew or repair the defective Metering Equipment (the "remedial
work"); (y) the exercise of such right would result in the
incurring of significant capital expenditure; and (z) the
Register indicates that such Registrant is acting as deemed
Operator, the Settlement System Administrator shall notify the
Registrant before undertaking such remedial work and shall give
such Registrant the opportunity to comply with (ii) (b) and (c)
above before commencing such remedial work.
60.5 Maintenance of Register and documents:
60.5.1 The Settlement System Administrator shall keep a
register recording:-
(i) each Metering System which is accepted for the purposes of
the Settlement System;
(ii) the respective identities in respect of each such Metering
System of:-
(a) the Registrant;
(b) the Operator;
(c) the Equipment Owner;
(d) the Host PES (where applicable);
(e) any Second Tier Customer or Non-Pooled Generator in respect
of a supply to which that Metering System is being used; and
(f) any agent which may be appointed from time to time by the
Settlement System Administrator for the purpose of data
collection or, where appropriate, of any Second Tier Agent in
respect of such Metering System or, where the Settlement System
Administrator does not appoint or have currently appointed such
agent or Second Tier Agent in respect or a Metering System, a
note to this effect;
(iii) loss adjustment details whether by meter biasing or by
software;
(iv) whether the Metering Equipment comprising a Metering System
is the subject of a dispensation agreed in accordance with
paragraph 14 of Schedule 21; and
(v) the relevant Code(s) of Practice in respect of such Metering
System.
60.5.2 For the purposes of this Agreement, the Settlement
System Administrator shall refer only to the Register to
identify the Registrant, Operator, Equipment Owner, Host PES,
Second Tier Customer, Non-Pooled Generator agent or Second Tier
Agent referred to in Clause 60.5.1 relating to each Metering
System and shall not be obliged to acknowledge or be bound by any
other agreement or arrangement entered into by any Registrant,
Operator, Equipment Owner, Host PES, Second Tier Customer or Non-
Pooled Generator.
60.5.3 The Settlement System Administrator shall keep
the Register up to date, noting changes to Registrants,
Operators, Equipment Owners, Host PES's, Second Tier Customers,
Non-Pooled Generators' Metering Equipment, dispensations and any
Site disconnections as notified to it pursuant to this Agreement
and any changes to any agent or Second Tier Agent. The
Settlement System Administrator shall also record in the Register
any other information regarding each Metering System as may be
reasonably required by the Executive Committee.
60.6 Communication links and central collector stations:
60.6.1 The Settlement System Administrator shall collect
(or procure the collection of) and estimate data relating to
quantities of Active and Reactive Power Imported or Exported by
any Party as may be required for the proper functioning of
Settlement in accordance with the provisions of this Clause 60.6.
60.6.2 The Settlement System Administrator shall collect
or procure the collection of all such data referred to in Clause
60.6.1 as is available from Outstations either by means of remote
interrogation or by means of manual on-site interrogation.
60.6.3 (a) For the purposes of remote interrogation the
Settlement System Administrator shall enter into, manage and
monitor contracts or other arrangements to provide for the
maintenance of all communication links by which information is
passed from Outstations to the Settlement System Administrator or
its agent other than exchange links which form part of
communications Equipment.
(b) In the event of any fault or failure of any communication
link or any error or omission in such data or all necessary data
not being available from Outstations the Settlement System
Administrator shall collect or procure the collection of such
data by manual on-site interrogation in accordance with the
relevant Agreed Procedures.
60.6.4 The Settlement System Administrator shall be
responsible for the installation and maintenance of central
collector stations.
60.6.5 The Settlement System Administrator shall collect
or procure the collection of data for the purposes of the
Settlement System from Embedded Generators, Second Tier
Suppliers, Second Tier Customers, Non-Pooled Generators and
inter-Distribution System connections in accordance with the
relevant Agreed Procedures.
60.6.6 The obligation to maintain communications links in
respect of Metering Equipment shall not apply where and with
effect from the date on which a person receiving a supply of or
generating electricity recorded by such Metering Equipment ceases
to be a second Tier Customer, a Non-Pooled Generator, a
Generator or a PES.
60.7 Class rights:
60.7.1 The levels of accuracy for Metering Equipment at
points of connection of Second Tier Customers taking up to (and
including) 100kW of demand and at new points of connection
between two or more Distribution Systems were not set as at 1st
April, 1993 and shall be as specified by the Executive Committee
subject to the consent of any relevant class of Pool Members.
60.7.2 The levels of accuracy for Metering Equipment at
points of connection of Non-Pooled Generators shall be as
specified by the Executive Committee subject to the consent of
any relevant class of Pool Members."
60.7.3 Any change to the standards of accuracy of
Metering Equipment required for Second Tier Customers up to (and
including) 100kW before 31st March, 1998 shall be a change to the
class rights of Suppliers.
60.7.4 Any change to the standards of accuracy of
Metering Equipment required for Non-Pooled Generators shall be a
change to the class rights of Suppliers.
60.8 Sealing: Metering Equipment shall be as secure as is
practicable in all the circumstances and for this purpose:-
(a) all Metering Equipment shall comply with the relevant
Agreed Procedure; and
(b) the Executive Committee and the Settlement System
Administrator shall regularly review Agreed Procedures for
security arrangements in relation to Metering Equipment.
60.9 Discrepancies between meter advance and half hourly value
totals: The Parties acknowledge that, in transmitting metered
data, impulses representing quantities of electricity may be lost
between the relevant Meter and the Outstations giving rise to
inaccuracies in half hourly values notwithstanding that the
Metering Equipment is complying with the standards required by
this Agreement. In such circumstances any differences between
electricity flows recorded on Meters and the total of the half
hourly values recorded in the Settlement System will be noted at
the time that the Meter is inspected and read by the Settlement
System Administrator pursuant to paragraph 10 of Schedule 21 and
will be dealt with as provided in the relevant Agreed Procedure.
In any other circumstances where the Metering Equipment is not
complying with the standards required by this Agreement such
difference will be dealt with in accordance with paragraph 11 of
Schedule 21.
60.10 Meter Failure:
60.10.1 If at any time any Metering Equipment ceases to
function or is found to be outside the prescribed limits of
accuracy referred to in paragraph 7.3.1 of Schedule 21 for
whatever reason then, except in the circumstances referred to in
Clause 60.10.2:-
(a) in the case of Metering Equipment ceasing to function,
during the period from the date of such cessation; or
(b) in any other case, during the period from the time when such
inaccuracy first occurred or, if such time is unknown, from the
midnight preceding the day during which the disputed reading
occurred,
until, in either such case, the date of adjustment, replacement,
repair or renewal of such Metering Equipment under paragraph 8.4
of Schedule 21, the meter readings shall be deemed to be those
calculated pursuant to the relevant Agreed Procedure.
60.10.2 If at any time a voltage transformer fuse on a
circuit supplying a Meter fails with the result that the Metering
Equipment is outside the prescribed limits of accuracy referred
to in paragraph 7.3.1 of Schedule 21, the meter readings from the
time the failure is deemed to have occurred until the voltage
transformer circuit is again restored to the Meter shall be
deemed to be those calculated pursuant to the relevant Agreed
Procedure. A failure shall be deemed to have occurred at the
point in time provided for in the relevant Agreed Procedure.
60.11 Disputes:
60.11.1 Any dispute regarding the accuracy of data
recorded or transmitted by Metering Equipment in respect of any
Settlement Day which is to be used for the purposes of
Settlement and where the purpose of the resolution of such
dispute is solely to affect payments arising from a Settlement
Run shall, if there is a relevant Agreed Procedure, be dealt with
in accordance with such Agreed Procedure. If, having exhausted
such Agreed Procedure any Party is not satisfied with the
outcome, such Party may refer the matter to the Executive
Committee. If there shall be no relevant Agreed Procedure, such
dispute shall be referred to the Executive Committee. If, in
either case, any Party is not satisfied with the decision of the
Executive Committee, the matter may be referred by such Party to
arbitration in accordance with Clause 83.
60.11.2 Any dispute regarding Metering Equipment (other
than a dispute referred to in Clause 60.11.1) shall be referred
to the Executive Committee. If any Party is not satisfied with
the decision of the Executive Committee, the matter may be
referred by such Party to arbitration in accordance with Clause
83.
60.11.3 It is hereby expressly acknowledged and agreed by
the Parties that the resolution of any dispute referred to in
Clause 60.11.1 or 60.11.2 shall in all cases be without prejudice
to the bringing or pursuing of any claim, by or against, or the
resolving of any issue between any one or more of such Parties or
any other Party arising out of the same facts or circumstances,
or facts or circumstances incidental to the facts and
circumstances giving rise to such dispute, or upon the basis of
which such dispute has been resolved, in favour of, or against, a
Meter Operator Party or Meter Operator Parties.
60.11.4 Upon the request of any Party which is a party to
a dispute referred to in Clause 60.11.1 or 60.11.2 any relevant
data derived from Metering Equipment may be submitted by the
Settlement System Administrator to the body then having
jurisdiction in respect of the relevant dispute for the purposes
of resolving such dispute.
60.12 Information:
60.12.1 If a Pool Member or Party intends to make or
provide or make a significant alteration to a connection to the
NGC Transmission System or to a Distribution System which
connection is of 100MW or more in capacity and which may require
a new Metering System to be registered into the Settlement System
or a significant change to a Metering System to be registered
into the Settlement System, the Pool Member or Party shall inform
the Settlement System Administrator as soon as possible and, in
any event, not later than three months prior to the date on which
the Pool Member or Party expects to make or provide the
connection or change. Such information will be regarded as
confidential to the Pool Member or Party providing it, and will
be used by the Settlement System Administrator only for the
purpose of preparing the Settlement System to take account of the
Metering System when it is registered.
60.12.2 Any information regarding or data acquired by the
Settlement System Administrator or its agent from Metering
Equipment at any Site which is a point of connection to a
Distribution System shall, and may, be passed by the Settlement
System Administrator or its agent to the operator of the relevant
Distribution System. The said operator of the relevant
Distribution System may only use the same for the purposes of the
operation of the Distribution System and the calculation of
charges for use of and connection to the Distribution System.
60.13 Ownership of Metering Data, access, use and use of
Communications Equipment:
60.13.1 The Registrant of any Metering System shall own
the data acquired therefrom provided that (and each Registrant
hereby expressly agrees and acknowledges that) a Second Tier
Customer or Non-Pooled Generator of that Registrant in respect of
which such data is generated shall be entitled at all times
without charge by the Registrant to access, obtain and use such
data and provide further that:-
(i) such access, obtaining or use, or the method of such access,
obtaining or use, does not interfere with the operation of
Settlement;
(ii) nothing in this Clause 60.13.1 shall require the Registrant
actively to provide such data to such Second Tier Customer or
such Non-Pooled Generator or so to provide such data free of
charge; and
(iii) such access shall not be by using any communications
link used by the Settlement System Administrator for the purposes
of Clause 60.6 without the prior written consent of the
Settlement System Administrator.
60.13.2 The Settlement System Administrator and, for the
purposes of the performance by the Pool Auditor of its functions
under Part IX, the Pool Auditor are hereby authorised to use all
data which is owned by the Registrant pursuant to Clause 60.13.1
as may be permitted pursuant to this Agreement, and the
Settlement System Administrator or, as the case may be, the Pool
Auditor may only release such data to others to the extent set
out in this agreement. It is hereby expressly agreed that the
Settlement System Administrator is permitted to and shall against
request and payment of a reasonable charge therefor release to a
Second Tier Customer or Non-Pooled Generator such data relating
to it as is referred to in Clause 60.13.1
60.13.3 Communications Equipment need not be dedicated
exclusively to the provision of data to the Settlement System
Administrator for the purposes of Settlement provided that any
other use shall not interfere at any time with the operation of
Settlement and subject also to the relevant provisions (if any)
in the Tariff.
60.14 Ancillary Services: Until the RP Date, the Ancillary
Services Provider shall be entitled at its own cost and expense
(which shall not be charged or recharged to Pool Members) to
prepare and submit to the Suppliers in separate class meeting a
works programme relating to the method of recovery from Pool
Members for the supply of Reactive Energy by reference to the
actual amount of Reactive Energy consumed by Pool Members as
measured by MVAr Metering Equipment at each relevant Site, and,
if approved by the Suppliers in separate class meeting, such
works programme shall be deemed to be an approved Works Programme
for all purposes of this Agreement and the provisions of Clauses
5.13 and 5.14 shall apply mutatis mutandis.
60.15 Appointment of Agents by Settlement System
Administrator: Notwithstanding the provisions of paragraph 7.2.2
of Schedule 4 the Settlement System Administrator may appoint one
or more agents to perform any or all of its obligations under
this Part XV and Schedule 21.
60.16 Appointment of Second Tier Agents by Settlement System
Administrator with effect from 31st March, 1994:
60.16.1 If, for the purposes of Clause 60.15, the
Settlement System Administrator appoints one or more agents for
the purpose of carrying out the obligations of the Settlement
System Administrator under or in connection with this Part XV or
Schedule 21 in relation to Metering Systems at or referable to
points of connection relating to Second Tier Customers or Non-
Pooled Generators as the Settlement System Administrator may
direct, then the provisions of Clauses 60.16.1 to 60.16.5 and
Clause 60.17 shall, inter alia, apply to such arrangements.
60.16.2 The Settlement System Administrator shall, prior
to appointing any Second Tier Agent pursuant to Clause 60.16.1,
consult with the Executive Committee as to the appropriateness of
the appointment of such Second Tier Agent and the terms upon
which, if appropriate, such agent is to be appointed and shall
have due regard to the wishes expressed pursuant to this Clause
60.16.2 by the Executive Committee.
60.16.3 The Settlement System Administrator shall use
reasonable endeavours to procure that each Second Tier Agent
shall promptly and properly input data and other information as
it may receive pursuant to the terms of its appointment into its
Second Tier Computer Systems and shall review and validate data
and other information in accordance with the relevant Agreed
Procedures to establish the completeness thereof and to identify
any inconsistencies therein.
60.16.4 The Settlement System Administrator shall use
reasonable endeavours to procure that each Second Tier Agent
shall keep secure and confidential and not disclose, during the
period of its appointment or following its resignation or
removal, information, data and documentation obtained by the
Second Tier Agent in such capacity so as to cause a breach by the
Settlement System Administrator of its obligations pursuant to
Clauses 68 or 69 of this Agreement.
60.16.5 The Settlement System Administrator shall use
reasonable endeavours to procure that upon the reasonable request
of the Settlement System Administrator and in any event upon the
removal or resignation of any Second Tier Agent, such Second Tier
Agent shall make over to the Settlement System Administrator or
its nominee all such records, manuals and data and other
information in the ownership or under the control of the Second
tier Agent and relating to the operation, and necessary for the
proper functioning, of the Second Tier Data Collection System.
60.17 Review:
(a) As soon as practicable after the third anniversary of
the date of this Agreement the Executive Committee, in
consultation with the Settlement System Administrator and the
Director, shall carry out a full review of the Second Tier Data
collection system and, in consultation with the Director, shall
seek to agree with the Settlement System Administrator (the
agreement of the Settlement System Administrator not be
unreasonably withheld or delayed) the manner by which the costs
of the Second Tier Data Collection System should be recovered, in
the Accounting Periods commencing on or after 1st April, 1994.
(b) If, and to the extent, deemed necessary by the
Executive Committee in consultation with the Settlement System
Administrator and the Director, the Executive Committee shall
conduct a further review of the Second Tier Data Collection
System and, in consultation with the Director, shall seek to
agree with the Settlement System Administrator (the agreement of
the Settlement System Administrator not to be unreasonably
withheld or delayed), the manner by which the Second Tier Data
Collection System should operate, and by which the costs of the
same should be recovered, in the Accounting Periods commencing on
or after 1st April, 1996 such review to commence in due time to
enable implementation of any changes to the Second Tier Data
Collection System on that date.
(c) The Executive Committee, in consultation with the
Settlement System Administrator and the Director, shall carry out
a further full review of the Second Tier Data Collection System
and, in consultation with the Director, shall seek to agree with
the Settlement System Administrator (the agreement of the
Settlement System Administrator not to be unreasonably withheld
or delayed), the manner by which the Second Tier Data Collection
System should operate, and by which the costs of the same should
be recovered, in the Accounting Periods commencing on or after
1st April, 1998 such review to commence in due time to enable
implementation of any changes to the Second Tier Data Collection
System on that date.
(d) In the event of an agreement within (a), (b) or, as the
case may be, (c) above, the provisions of this Agreement
relating to the Second Tier Data Collection System shall be
amended accordingly and, in the event of any failure to agree,
the matter shall be referred to arbitration pursuant to the
provisions of Clause 83. If such agreement has not been reached
or a determination has not been made or a settlement not been
reached under any such arbitration prior to:
(i) in the case of (a) above, the fourth anniversary of the date
of this Agreement;
(ii) in the case of (b) above (where applicable) by 1st April,
1996; and
(iii) in the case of (c) above by 1st April, 1998,
the Settlement System Administrator shall, between such date and
the date on which agreement is reached or (if applicable) a
determination or settlement under such arbitration is made or
reached, recover the costs, expenses and charges of the Second
Tier Data Collection System in accordance with Clause 34A and
paragraph 3 of Part G of the Appendix to Schedule 4.
60.18 Software for FMS: The Settlement System Administrator
shall develop and implement appropriate computer software for the
purposes of collecting and aggregating data following the FMS
Date.
60.19 Second Tier Unmetered Supplies:
60.19.1 Notwithstanding any of the other provisions of
this Agreement, including Clause 60 (other than the provisions of
this clause 60.19) and Schedule 21, the provisions of this clause
60.19 and any Second Tier Unmetered Supplies Procedures shall, to
the extent they are supplemental to or conflict with any other
provisions of this Agreement, govern the rights and obligations
of the Parties (including each Operator and each Meter Operator
Party) in relation to Second Tier Unmetered Supplies.
60.19.2 Neither this Clause 60.19 (save for the
requirements set out in this Clause 60.19.2 for the bringing into
effect of this Clause 60.19) nor the Second Tier Unmetered
Supplies Procedures nor any amendment, variation or replacement
of either of them may become effective:
(i) unless and until the Chief Executive shall have given each
Public Electricity Supplier, each Second Tier Supplier, the
Director (who may consult with such persons as he considers
appropriate) and the Settlement System Administrator not less
than 14 days' notice that this Clause 60.19 (or any amendment,
variation or replacement thereof) and/or the Second Tier
Unmetered Supplies Procedures are to become effective, stating
the date on which the same are proposed to become effective and
having attached thereto a copy of any proposed Second Tier
Unmetered Supplies Procedures; and
(ii) so long as none of the recipients of the notice referred to
in Clause 60.19.2(i) shall have given a counternotice to the
Chief Executive before the date on which this Clause 60.19 and/or
the Second Tier Unmetered Supplies Procedures are to become
effective stating, on reasonable grounds, an objection to this
Clause 60.19 or the Second Tier Unmetered Supplies Procedures
becoming effective on the proposed date or at all,
in the event that a counternotice shall have been given in
accordance with Clause 60.19.2(ii) the Chief Executive shall, as
soon as is reasonably practicable, notify the persons referred
to in Clause 60.19(i) of that fact.
60.19.3 Nothing in this Clause 60.19 shall permit the
adoption, in the Second Tier Unmetered Supplies Procedure or
otherwise, of standards of accuracy of data for Second Tier
Unmetered Supplies different from those which apply generally
under this Agreement other than during the transitional period
expiring on 31st March, 1995.
60.19.4 Except where the context otherwise requires, in
this Clause 60.19:
"Second Tier Unmetered Supplies" means unmetered street lighting
and related supplies of a type which as at the date this Clause
60.19 becomes effective are permitted to be made by a Second Tier
Supplier;
"Second Tier Unmetered Supplies Procedures" means the procedures
in respect of Second Tier Unmetered Supplies in the form agreed
between all Public Electricity Suppliers and the Director (who
may consult with such persons as he considers appropriate) as the
same may be amended, varied or replaced from time to time with
the agreement of such persons.
60.19.5 The Executive Committee may determine that Agreed
Procedures are necessary to implement this Clause 60.19 or the
Second Tier Unmetered Supplies Procedures and in such case
nothing in this Clause 60.19 or the Second Tier Unmetered
Supplies Procedures shall prejudice such determination or the
adoption or implementation of such Agreed Procedures, provided
that any such Agreed Procedure shall not include matters which
would occur on the Second Tier Customer's side of the outstation.
60.19.6 The Parties accept that modifications to the
Settlement System Administrator's rights and obligations under
this Agreement may be required under the Second Tier Unmetered
Supplies Procedures or otherwise before this Clause 60.19 can
become effective.
PART XVI
POOL CIVIL EMERGENCIES
61.1 DEFINITIONS
Definitions: In this Part XVI:-
"Civil Emergency Pool Credit Facility" shall mean a credit
facility to be arranged by and for the use of Suppliers upon
terms and conditions to be set out in Schedule 11 to this
Agreement;
"Poor Civil Emergency" shall have the meaning ascribed to it
in Clause 61.2.1;
"Pool Civil Emergency Event" shall mean an event or series
of events which satisfies the conditions set out in Clause
61.3.2;
"Pool Civil Emergency Period" shall mean a period initiated
by the Executive Committee after the occurrence of a Pool Civil
Emergency Event which shall commence, and terminate, in
accordance with this Part;
"Pool Rules Civil Emergency Condition" shall mean, in
respect of any Schedule Day, that both:-
(i) UMT > 0.1 (as determined in accordance with paragraph 32.1
(a) of Schedule 9; and
(ii) RAPT > 3 * CAPT (as determined in accordance with paragraph
32.1(b) of Schedule 9;
"Pool Rules Civil Emergency Period" shall mean a period
which commences, and terminates, and in which section 32.3 of
Schedule 9 is in force, in accordance with this Part; and
"Relevant Time" in relation to any event, means the time
which falls two hours prior to the first time at which an
Availability Declaration must be submitted pursuant to section
6.1 of Schedule 9 on the first Settlement Day which commences at
least 24 hours after the occurrence of such event.
61.2 APPLICATION AND STATEMENT OF INTENT
61.2.1 General Statement of Intended Application: It is
intended that this Part shall apply where there is in existence
an event, or series of events which does or do not generally
occur as part of normal market operating conditions and which
affect(s) the operation of the market for the generation,
transmission and/or supply of electricity in England and Wales
and which, as a result, cause(s) or is or are likely to cause
materially changed pool prices to arise and continue (a "Pool
Civil Emergency"). The following conditions set out in this Part
are intended to reflect the circumstances in which it is
envisaged that it would likely be the case that such event or
events shall have so occurred.
61.2.2 Interrelationship with Act: The Act and the
Energy Act 1976 contain legislation conferring wide powers upon
the Secretary of State to regulate the generation, transmission
and/or supply of electricity in an emergency. It is intended
that the provisions of this Part shall coexist in application
with such legislation.
61.3 CONDITIONS FOR EXISTENCE OF A POOL CIVIL EMERGENCY
61.3.1 Determination of a Pool Civil Emergency: A Pool
Civil Emergency shall exist upon any resolution to that effect
passed by the Executive Committee in accordance with the
provisions of this Part whereafter, subject to the following
provisions of this Part, a Pool Civil Emergency Period shall
commence.
61.3.2 Conditions: The Executive Committee shall resolve
that a Pool Civil Emergency exists only if it has formed the
opinion that a Pool Civil Emergency Event has occurred. A Pool
Civil Emergency Event shall occur whenever:-
(a) materially changed pool prices exist or are likely to exist
and, in either case, are likely to continue; and
(b) such materially changed pool prices are the direct result of
any one or more of the following:-
(i) a major failure affecting the operation of the NGC
Transmission System;
(ii) a major operational failure of one or more Distribution
Systems; or
(iii) an inability of any Generator to generate or the loss
of generating plant availability of any Generator; and
(c) the event within (i), (ii), or as the case may be, (iii) of
(b) above has itself resulted from any one or more of the
following:-
(i) any action taken by or on behalf of Her Majesty's Government
pursuant to and in accordance with the emergency provision set
out in sections 1 to 4 of the Energy Act 1976 or section 96 of
the Act;
(ii) any act, order, regulation, direction or directive,
legislation or restraint of Parliament or any governmental
authority, or agent or instrument of the foregoing;
(iii) any act of public enemy or terrorist, act of war or
hostilities (whether declared or undeclared), threat of war or
hostilities, blockade, revolution, riot, insurrection, civil
commotion or unrest or demonstration;
(iv) any strike, lock-out or other industrial action;
(v) any act of sabotage or vandalism;
(vi) lightning, earthquake, hurricane, storm, fire, flood,
drought, accumulation of snow or ice, or any other extreme
weather or environmental condition; or
(vii) any other event provided that in such a case any
resolution of the Executive Committee determining that a Pool
Civil Emergency exists must be carried by a majority of not less
than 75 per cent of the total votes of all Committee Members
entitled to vote at a meeting of the Executive Committee whether
or not present.
61.4 CONDITIONS FOR EXISTENCE OF A POOL RULES CIVIL EMERGENCY
PERIOD
Pool Rules Civil Emergency Period: A Pool Rules Civil
Emergency Period shall, subject to the following provisions of
this Part, commence as part of a Pool Civil Emergency Period
whenever (i) a Pool Civil emergency Period is current and (ii)
the Pool Rules Civil Emergency Condition is satisfied and (iii)
Section 28 of Schedule 9 hereof is not in effect.
61.5 PROCEDURE FOR INITIATION OF A POOL CIVIL EMERGENCY PERIOD
AND COMMENCEMENT OF A POOL RULES CIVIL EMERGENCY PERIOD
61.5.1 Right to requisition:
(a) Each Pool Member, the Settlement System Administrator, the
Grid Operator, the Director and the Secretary of State shall have
the several right to have convened a special meeting of the
Executive Committee for it to consider whether a Pool Civil
Emergency exists (and accordingly whether a Pool Civil Emergency
Period is to commence).
(b) To requisition a meeting of the Executive committee the
relevant Party, the Director or, as the case may be, the
Secretary of State shall notify in writing:-
(i) in the case of a Pool Member, its appointed Committee
Member, the Pool Chairman or the Chief Executive; and (ii) in
the case of the Settlement System Administrator, the Grid
Operator, the Director or the Secretary of State, the Pool
Chairman or the Chief Executive,
that it wishes such a meeting to be convened giving as full an
explanation as it is able of the event or events which it
believes constitutes(s) the relevant Pool Civil Emergency Event.
(c) Upon receipt of a written requisition in accordance with
(b), the relevant Committee Member, the Pool Chairman or, as the
case may be, the Chief Executive shall convene a special meeting
of the Executive Committee in accordance with Clause 18 to take
place within 48 hours after receipt of such requisition, and the
provisions relating to notice periods in Clause 18 shall be
varied for the purposes of this Part accordingly.
61.5.2 Initiation by the Executive Committee
Pool Civil Emergency Period: If the Executive committee shall
resolve that a Pool Civil Emergency exists then, subject to the
right of veto in Clause 61.5.7 being exercised, a Pool Civil
Emergency Period shall commence upon the expiry of the time
limit for the exercise of such veto and shall continue until
terminated in accordance with Clause 61.7.
61.5.3 Pool Rules civil Emergency Period:
(a) Commencement: A Pool Rules Civil Emergency Period shall,
subject to the right of veto in (b) below and in Clause 61.5.7
being exercised, commence in accordance with Clause 61.4 at the
expiry of the period for the exercise of the Executive
Committee's veto in (b) below and shall continue until terminated
in accordance with the provisions of Clause 61.7.
(b) Executive Committee's Right of Veto: The Executive
Committee shall have the right to veto the commencement of a Pool
Rules Civil Emergency Period by the passing of a resolution to
that effect carried by a majority of not less than 65 per cent of
the total votes of all Committee Members entitled to vote at such
meeting whether or not present, provided that the Executive
Committee shall only be able to exercise such right of veto prior
to the Relevant Time relative to the time at which the Secretary
receives a notification given by the Settlement System
Administrator pursuant to Clause 61.5.4
(c) Effect of Veto: Where the Executive committee exercise its
right of veto in accordance with (b) above, the relevant Pool
Rules Civil Emergency Period shall not commence.
61.5.4 Settlement System Administrator's Notification:
The Settlement System Administrator shall notify forthwith by
telephone (and confirm in writing as soon as is practicable
thereafter to) the Chief Executive, Pool Chairman, Secretary,
Director and Secretary of State whenever it becomes aware that
the Pool Rules Civil Emergency condition is satisfied.
61.5.5 Reasons: The Executive Committee shall give
reasons for the passing of any resolution pursuant to this Clause
or the exercising of any right of veto conferred on it by this
Clause, to be notified to the relevant parties by the Secretary
in accordance with Clause 61.5.6.
61.5.6 Notification (1): The Secretary shall notify in
accordance with Clause 75 all Parties, the Director and the
Secretary of State:-
(a) of the result of any vote taken on a resolution of the
Executive Committee pursuant to this Part, giving reasons in
outline explaining such result, immediately following the
conclusion of the meeting at which the vote was taken; such
notification may be given by telephone or by facsimile
transmission. An outline statement of reasons shall be
circulated by the Secretary to the same persons as soon as is
reasonably practicable thereafter; and
(b) where there has been no exercise within the time limit
provided therefor of a right of veto pursuant to either clause
61.5.3 by the Executive Committee or Clause 61.5.7 by the
Director or the Secretary of State, notify all Parties, the
Director and the Secretary of State immediately of the
commencement of a Pool Rules Civil Emergency Period.
61.5.7 Right of Veto:
(a) Right of Veto: The Director and the Secretary of State
shall each have a several right to veto the commencement of any
Pool civil Emergency Period or, as the case may be, Pool Rules
Civil Emergency Period by giving written notice of an exercise of
such right of veto addressed to the Executive Committee, the Pool
Chairman and the Chief Executive within the time periods
specified below. To be validly given, such notice shall specify
in sufficient detail (in the case of a Pool Civil Emergency
Period) the relevant resolution of the Executive Committee or (in
the case of a Pool Rules Civil Emergency Period) the relevant
notification of the Settlement System Administrator, in respect
of which the right of veto is being exercised.
(b) Effect of Veto: Where the Director or the Secretary of
State exercises his veto in accordance with this Clause 61.5.7,
the relevant Pool Civil Emergency Period or, as the case may be,
Pool Rules Civil Emergency Period shall not commence.
(c) Time Limits: Any veto given by, or on behalf of, either of
the Director or Secretary of State must be received by or on
behalf of the Executive Committee:-
(i) in respect of a resolution initiating a Pool Civil Emergency
Period, before the expiry of a period of 48 hours commencing
upon the receipt by the Director or, as appropriate, the
Secretary of State, of the notification of the result of the vote
upon the relevant resolution; or
(ii) in the case of a veto in respect of the commencement of a
Pool Rules Civil Emergency Period, before the expiry of the time
for the exercise of the Executive Committee's right of veto
pursuant to Clause 61.5.3.
For the avoidance of doubt, such veto may be given at any time
before the commencement of such period.
(d) Reasons: The Director shall upon exercising a right of veto
conferred by this Clause give reasons to the Executive Committee
supporting the exercise of that right and the Parties would
expect the Secretary of State also to give reasons upon any
exercise of his right of veto conferred by this Clause.
(e) Notification (2): Upon receipt by or on behalf of the
Executive Committee of a notice of exercise of veto pursuant to
this Clause, the Secretary, on behalf of the Executive Committee,
shall as soon as is possible thereafter give notice in accordance
with Clause 75 of the exercise of such veto.
61.6 EFFECT OF POOL AND POOL RULES CIVIL EMERGENCY PERIODS
61.6.1 Effect of a Pool Civil Emergency Period:
(a) Upon a determination that a Pool Civil Emergency exists in
accordance with Clause 61.2.1 above:-
(i) Suppliers shall be entitled during the Pool Civil Emergency
Period, for the purposes of payments to be made by them pursuant
to this Agreement during such period, to utilise the Civil
Emergency Pool Credit Facility; and
(ii) Sections 32.1 and 32.2 of the Pool Rules shall enter into
force and effect.
(b) The Pool Members expressly acknowledge the fact that during
the currency of any Pool Civil Emergency Period Suppliers shall
be entitled to operate credit facilities in accordance with and
subject to any conditions of their respective Licences (where
relevant).
61.6.2 Effect of a Pool Rules Civil Emergency Period:
Upon the commencement of a Pool Rules Civil Emergency Period in
accordance with Clause 61.5.3(a), the provisions of Section 32.3
of Schedule 9 shall enter into full force and effect and shall
continue in full force and effect until such time as that Pool
Rules civil Emergency Period is terminated in accordance with
Clause 61.7
61.7 TERMINATION OF A POOL CIVIL EMERGENCY PERIOD
61.7.1 Director's determination of end of Pool Civil
Emergency Period: A Pool Civil Emergency Period and, where
applicable, any concurrent Pool Rules Emergency Period, shall
terminate upon any determination of the Director to that effect.
61.7.2 Consultation: The Director shall only determine
that a Pool Civil Emergency Period and, where applicable, any
concurrent Pool Rules Civil Emergency Period shall terminate
after having fully consulted and taken into consideration the
views of all relevant Parties and after having obtained the
approval of the Secretary of State.
61.7.3 Notification (3): The Director shall notify in
writing the Secretary, the Pool Chairman and the Chief Executive
as soon as is possible of any determination made pursuant to this
Clause 61.7 giving reasons for any determination so made and the
Secretary shall immediately notify all Parties of such
determination upon receipt.
61.7.4 Confirmation: The Director shall confirm to the
Executive Committee upon any determination pursuant to this
Clause 61.7 that a Pool Civil Emergency Period shall terminate,
that he has taken full account of all relevant matters, the views
of such relevant Parties and has obtained the approval of the
Secretary of State.
61.7.5 Termination of a Pool Rules Civil Emergency Period
within a continuing Pool Civil Emergency Period:
(a) The Executive Committee may, by resolution carried by a
majority of not less than 65 per cent of the total votes of all
Committee Members whether or not present, terminate any current
Pool Rules Civil Emergency Period whenever it considers, in its
absolute discretion, that the continued application of the
modified Pool Rules as set out in Section 32.3 of Schedule 9 to
be, in the circumstance, no longer appropriate.
(b) The relevant Pool Rules Civil Emergency Period shall
terminate following the passing of that resolution at the
Relevant Time relative to the time at which that resolution is
passed.
(c) The Secretary, on behalf of the Executive Committee, shall
as soon as is possible after the passing of such resolution give
notice to all Parties, the Director and the Secretary of State in
accordance with Clause 75 that the relevant Pool Rules Civil
Emergency Period is to so terminate.
(d) Whenever Section 28 of Schedule 9 enters into force and
effect, in accordance with this Agreement, any Pool Rules Civil
Emergency Period then current shall terminate at the time that
such section so enters into force and effect.
61.7.6 Effect of Termination:
(a) Pool civil Emergency Period: Upon the termination of any
Pool Civil Emergency Period the Civil Emergency Pool Credit
Facility shall forthwith cease to be utilised and, where there is
a concurrent Pool Rules Civil Emergency Period, the provisions
of Section 32 of Schedule 9, shall forthwith cease to be
effective.
(b) Pool Rules Civil Emergency Period within a current and
continuing Pool Civil Emergency Period: Upon the termination of
any Pool Rules Civil Emergency Period within a current and
continuing Pool Civil Emergency Period the provisions of Section
32.3 of Schedule 9 shall forthwith cease to be effective.
61.8 REFERENCE TO DIRECTOR
61.8.1 Reference to the Director: If any dispute shall
arise between the Executive Committee and any Pool Member:
(a) as to whether the Executive Committee ought to have
concluded that the conditions for the initiation of a Pool Civil
Emergency Period in accordance with Clause 61.3.2 were satisfied
either as a matter of fact or such that there was a Pool Civil
Emergency within the spirit of the statement of intent set out at
Clause 61.2.2; or
(b) as to whether the Executive Committee ought or ought
not to have exercised its right of veto pursuant to Clause
61.5.3(b) in respect of the commencement of a Pool Rules Civil
Emergency Period; or
(c) as to whether a Pool Rules Civil Emergency Period
within a current and continuing Pool Civil Emergency Period ought
or ought not to have been terminated by the Executive Committee
in accordance with Clause 61.7.5 above,
the dispute may be referred by notice of the dispute given
in writing by the relevant Pool Member to the Director and as if
such Pool Member were exercising a Dissenting Pool Member's right
of appeal pursuant to Clause 13.5. The Director shall determine
the matter within 60 days of receipt of such referral. Notice of
any such referral shall be given to the Executive Committee at
the same time that the dispute is so referred.
61.8.2 Content and Effect of Determination:
(a) If the Director shall determine in accordance with
Clause 61.8.1 that a Pool Civil Emergency Period or Pool Rules
Civil Emergency Period should commence, or as the case may be,
resume, then:
(i) in the case of a Pool Civil Emergency Period, upon such
determination having been notified to the Secretary in accordance
with Clause 61.8.3, a Pool Civil Emergency Period shall commence
or, as the case may be, resume; and
(ii) in the case of a Pool Rules Civil Emergency Period,
such period shall commence at the Relevant Time relative to the
time at which such determination has been notified to the
Secretary in accordance with Clause 61.8.3; or
(b) If the Director shall determine in accordance with
Clause 61.8.1 that a continuing Pool Civil Emergency Period or
Pool Rules Civil Emergency Period should terminate, then:
(i) in the case of a Pool Civil Emergency Period, upon such
determination having been notified to the Secretary in accordance
with Clause 61.8.3, the then current Pool Civil Emergency Period
shall terminate; and
(ii) in the case of a Pool Rules Civil Emergency Period, the
then current such period shall terminate at the Relevant Time
relative to the time at which such determination has been
notified to the Secretary in accordance with Clause 61.8.3.
61.8.3 Notification (4): The Director shall notify in
writing the Secretary, the Pool Chairman and the Chief Executive
as soon as is possible of any determination made pursuant to this
Clause 61.8 giving reasons for any determination so made and the
Secretary shall immediately notify all Parties of such
determination upon receipt.
61.9 MODIFICATION OF PROCEDURES
Modification of Procedures: Neither the procedures for a
poll set out in Clause 22 nor the provisions of Clause 13.4 shall
apply to any resolution of the Executive Committee referred to in
this Part XVI, and there shall be no right of referral of the
matter the subject of such resolution to the Pool Members in
general meeting.
PART XVII
TRADING SITE
62 TRADING SITE
Trading Site: The provisions of Schedule 17 shall have
effect.
PART XVIII
THE POOL FUNDS ADMINISTRATOR, BILLING AND SETTLEMENT
63 THE POOL FUNDS ADMINISTRATOR
63.1 Responsibilities: The Pool Funds Administrator shall have
the following duties, responsibilities and obligations, namely:-
63.1.1 to comply with all the obligations set out in this
Agreement and the Agreed Procedures in respect of the
establishment, maintenance and operation of the Funds Transfer
System and to carry out its obligations under the Funds Transfer
Agreement;
63.1.2 to keep under review and to make recommendations
to the Executive Committee on its own initiative or whenever
requested by the Executive Committee concerning:-
(a) any change to the Funds Transfer System (or any part or
aspect thereof);
(b) the appointment of a new Pool Banker;
(c) any change to Schedule 11 or 15; and
(d) any change to the Funds Transfer Agreement,
which the Pool Funds Administrator may consider desirable. In
making such recommendations, the Pool Funds Administrator shall
have regard to, and shall provide details of, the cost of
implementing such changes (which cost would be charged or
recharged to Pool Members) and shall recommend whether, in light
of those costs, certain parties or categories of party to the
Agreement should be exempted from such changes or whether special
provisions for such parties or categories of party should be
adopted;
63.1.3 (a) to maintain such records, data and other
information as the Pool Auditor may, after consultation with the
Executive Committee, from time to time by notice in writing and
in reasonable detail to the Pool funds Administrator, require for
the purposes of Part IX, or as may otherwise be reasonably
necessary to enable the Pool Funds Administrator to comply
promptly and fully with all its obligations under this Agreement,
the Agreed Procedures or the Funds Transfer Agreement, in either
such case in such form as the Pool Auditor may from time to time
by notice to the Pool Funds Administrator require or (in the
absence of such notification) in such form as a reasonably
prudent operator of the Funds Transfer System would adopt; and
(b) to maintain such records, data and other information as H.M.
Customs and Excise may from time to time require of the Pool
Funds Administrator;
63.1.4 to retain in machine readable form or hard copy
form for a period of not less than eight years (or such longer
period as any applicable law may require) and in any event in
hard copy form (which for these purposes shall include
microfiche) for a period of not less than one year copies of the
records, data and other information received and processed by the
Pool Funds Administrator in connection with its performance of
the Services including:-
(a) (to the extent relevant for the performance of the Services)
Settlement Runs and Settlement Re-runs;
(b) Advice Notes and Confirmation Notices;
(c) bank statements in respect of the Pool Accounts;
(d) Pool Ledger Accounts;
(e) Payments Calendars;
(f) a record of all Default Interest Rates and Reserve Interest
Rates calculated from time to time (including the period to which
each interest rate relates);
(g) details of Security Cover supplied and to be supplied by
each Supplier; and
(h) correspondence between the Pool Funds Administrator, on the
one hand, and the Executive Committee, the Pool Chairman, the
Chief Executive, any Pool Member, the Pool Banker, any Collection
Bank, the Settlement System Administrator, the Ancillary Services
Provider, the Director, the Pool Auditor, the Grid Operator and
any other relevant bank or institution, on the other hand;
63.1.5 to provide to the Executive Committee and the
Chief Executive upon request records, data and other information
concerning the funds Transfer System (and any part thereof)
(unless disclosure would breach any duty of confidentiality
imposed on the Pool Funds Administrator) and which the Pool Funds
Administrator is required to retain under paragraph 63.1.3 or
63.1.4 (and each of the Parties agrees to the release of all such
records, data and other information in the circumstances and
manner described in this paragraph 63.1.5);
63.1.6 to provide to the Pool Auditor upon request
records, data and other information concerning the Funds Transfer
System (and any part thereof) and which the Pool Funds
Administrator is required to maintain and retain under paragraph
63.1.3 or 63.1.4 (and each of the Parties agrees to the release
of all such records, data and other information in the
circumstances and manner described in this paragraph 63.1.6);
63.1.7 subject to the provisions of Part XX, to provide a
certified copy of such records, data and other information
concerning the Funds Transfer System (and any part thereof) and
amounts payable by or to any Pool Member or the Ancillary
Services Provider as the relevant Pool Member or (as the case may
be) the Ancillary Services Provider may reasonably request for
the purposes of establishing the amounts which are owed to or by
such Pool Member or the Ancillary Services Provider in accordance
with this Agreement, and in any event such information as any
Pool Member or the Ancillary Services Provider may request from
the Pool Funds Administrator in order to establish or prove a
claim to any amounts due or claimed to be due. The Pool Funds
Administrator shall forthwith upon such request provide such
information upon delivery (if so required by the Pool Funds
Administrator) of a certificate form the counsel of such Pool
Member or the Ancillary Services Provider certifying that, in
such counsel's opinion, such information is required for such
purpose;
63.1.8 to issue Advice Notes and Confirmation Notices
within the times and containing the details required by Schedule
11;
63.1.9 upon request, promptly to supply on its own behalf
and on behalf of Pool Members and the Ancillary Services Provider
(with a copy to the Pool Member concerned and the Ancillary
Services Provider) any information (including copies of
documents) to H.M. Customs and Excise, and to co-operate in any
investigation by H.M. Customs and Excise or H.M. Inspector of
Taxes relating to the Funds Transfer System (or any part or
aspect thereof);
63.1.10 in respect of each calendar quarter, to issue to
all Pool Members, the Executive Committee, the Chief Executive,
the Settlement System Administrator and the Ancillary Services
Provider no later than the fifth Business Day after each calendar
quarter a statement enabling the identification of who may
constitute Majority Default Calling Creditors during that
calendar quarter (and the Parties hereby agree to such
disclosure being made);
63.1.11 except in respect of moneys received on account of
the PFA Operating Costs, the PFA Handling Charge, the Annual Fee
or Bank Charges in accordance with the accounting procedure set
out in Schedule 15 or the consideration received pursuant to sub-
section 5.1 or 5.2 of that Schedule, to pay all moneys received
by it from a Pool Member or the Ancillary Services Provider in
accordance with Schedule 11 into a Pool Account to be held in
trust in accordance with the provision of Schedule 11; and
63.1.12 to comply with all its other obligations under
this Agreement (including Schedules 11 and 15) and the Agreed
Procedures,
and expressions defined in Schedules 11 and 15 shall have
the same respective
meanings when used in this Clause 63.1
63.2 Standard of care: In the exercise of its duties and
responsibilities under this Agreement and the Agreed Procedures
the Pool Funds Administrator shall exercise that degree of care,
diligence, skill and judgment which would ordinarily be expected
of a reasonably prudent operator of the Funds Transfer System
taking into account the circumstances actually known to the Pool
Funds Administrator, its officers and employees at the relevant
time or which ought to have been known to it or them had it or
they made such enquiries as were reasonable in the circumstances.
In particular, but without prejudice to the generality of the
foregoing in the absence of directions and instructions given to
it by the Executive Committee under this Agreement and having due
regard to the resources available to it, the Pool Funds
Administrator shall at all times conduct itself in a manner
calculated to achieve the principal objects and purposes of this
Agreement set out in Clauses 4.1.2 and 4.1.3.
63.3 UK value added tax indemnity:
63.3.1 Indemnity (1): Without prejudice to paragraph
63.3.2 all Pool Members shall jointly and severally indemnify and
keep indemnified the Pool Funds Administrator, its officers,
employees and agents (and, as between the Pool Members, according
to their respective Contributory Shares at the time of receipt of
the request for indemnification, calculated on the basis that the
points allocated to the Pool Member in default are disregarded)
against any liability which the Pool Funds Administrator may
incur as a result of the failure of any Pool Member or the
Ancillary Services Provider (as the case may be) properly to
account to H.M. Customs and Excise for all amounts of United
Kingdom Value Added Tax payable or receivable by it in respect of
any supplies of electricity or Ancillary Services.
63.3.2 Indemnity (2): If any Pool Member or the
Ancillary Services Provider shall fail properly to account for
any amount of United Kingdom Value Added Tax payable or
receivable by it, that person shall indemnify and keep
indemnified each Pool Member (on an after tax basis, but taking
account of any tax relief available to the relevant Pool Member)
against any liability which such Pool Member shall incur pursuant
to paragraph 63.3.1.
63.4 Schedule 15:
63.4.1 Subject to the rights of each of the Parties under
this Agreement, all Parties hereby agree promptly to execute and
deliver all agreements and other documentation necessary to give
effect to any act, matter or thing done by the Executive
Committee in accordance with Schedule 15 (including the removal
of the incumbent Pool Funds Administrator and the appointment of
a successor in accordance with the terms thereof).
63.4.2 Schedule 15 provides that certain matters may be
referred by the Executive Committee to arbitration pursuant to
Clause 83. In making any such reference or in alleging that any
such reference is being made pursuant to Clause 83 the Executive
Committee shall act (and is hereby irrevocably authorised by each
of the Pool Members to act) as the sole and exclusive
representative of all the Pool Members and the Pool Funds
Administrator hereby agrees that the Executive Committee shall
have the authority so to act.
64 PROCEDURES MANUAL
64.1 Preparation: Within 28 days after the Effective Date (or
such longer period as the Executive Committee may approve) the
Pool Funds Administrator shall prepare, or cause to be prepared,
a Procedures Manual which it shall submit to the Executive
Committee for its review. The Executive Committee shall give its
comments on the Procedures Manual to the Pool Funds Administrator
within 28 days after receipt thereof and the Pool Funds
Administrator shall revise, or cause to be revised, the
Procedures Manual to the satisfaction of the Executive Committee
within 21 days after receipt of such comments (or such longer
period as the Executive Committee may approve). Promptly
thereafter the Pool Funds Administrator shall provide the
Executive Committee with sufficient copies for the revised
Procedures Manual for distribution by the Executive Committee to
all Parties, the Pool Auditor, the Pool Banker and the Director.
64.2 Amendments: Where from time to time any amendments to the
Procedures Manual are necessary to reflect changes in the systems
and/or procedures associated with the Funds Transfer System, the
procedure set out in Clause 64.1 shall apply mutatis mutandis.
64.3 Costs: The costs of producing, revising and amending the
Procedures Manual shall be borne by the Pool Funds Administrator
and recovered by it in accordance with the provisions of Schedule
11 as part of its charges.
65 BILLING AND SETTLEMENT
The provisions of Schedule 11 shall have effect.
PART XIX
DEFAULT, TERM AND TERMINATION
66 DEFAULT
66.1 Default (1): At any time after the occurrence of any of the
events referred to in Clause 66.3.1, 66.3.2 or 66.3.3 and so long
as such event continues unremedied or unwaived by Majority
Default Calling Creditors:-
66.1.1 Majority Default Calling Creditors may, upon
reaching a bona fide conclusion that the reason for the failure
by the Defaulting Pool Member under Clause 66.3.1, 66.3.2 or
66.3.3 is other than administrative or banking error (having
taken into account the representations, if any, of the Defaulting
Pool Member made within 24 hours after request therefor is made
to the Defaulting Pool Member on behalf of the Majority Default
Calling Creditors, which request Majority Default Calling
Creditors shall be obliged to make), by notice to the Defaulting
Pool Member (copied to the Executive Committee and the Director)
declare such event an Event of Default;
66.1.2 at the same time as Majority Default Calling
Creditors declare such an Event of Default or any time
thereafter, Majority Default Calling Creditors may by notice to
the Executive Committee (copies to the Defaulting Pool Member and
the Director) require the Executive Committee to suspend (which
the Executive Committee shall forthwith do) all voting rights of
the Defaulting Pool Member under this Agreement for a specified
period (being not more than 90 days) and, upon the Executive
Committee giving notice to such effect to the defaulting Pool
Member (copied to the Director), such voting rights (but not any
other rights or any liabilities or obligations of the Defaulting
Pool Member) shall be suspended for such period; and
66.1.3 where:-
(a) the Defaulting Pool Member is a Public Electricity Supplier,
no earlier than 28 days after the date of the notice referred to
in Clause 66.1.1; and
(b) in any other case, at the same time as Majority Default
Calling Creditors declare such an Event of Default or at any time
thereafter,
Majority Default Calling Creditors may by notice to the
Defaulting Pool Member (copied to the Executive committee, the
Settlement System Administrator, the Grid Operator, the Pool
Funds Administrator, the Ancillary Services Provider and the
Director) require the Defaulting Pool Member to cease to be a
Party with effect from the date of its De-energisation and until
such date all voting rights of the Defaulting Pool Member under
this Agreement (but not any other rights or any liabilities or
obligations of the Defaulting Pool Member) shall be automatically
suspended.
For the avoidance of doubt, Majority Default Calling Creditors
shall be at liberty to give notice under Clause 66.1.2 and, upon
expiry of the specified period referred to therein and subject as
provided in the foregoing provisions of this Clause 66.1, to give
notice under Clause 66.1.3.
66.2 Default (2): At any time after the occurrence of any
of the events referred to in Clause 66.3 (other than (a) any of
the events referred to in Clause 66.3.1, 66.3.2 and 66.3.3 and
(b) in the case where the Defaulting Pool Member is unable to pay
its debts as referred to in Clause 66.3.6(a), unless any of the
other events referred to in Clause 66.3 has occurred and is
continuing) and so long as such event continues unremedied or
unwaived by the Pool Members in general meeting the Executive
Committee may (and shall if so directed by the Pool Members in
general meeting):-
66.2.1 by notice to the Defaulting Pool Member (copied to the
Director) declare such event an Event of Default and suspend all
voting rights of the Defaulting Pool Member under this Agreement
for a specified period (being not more than 90 days) whereupon
such voting rights (but not any other rights or any liabilities
or obligations of the Defaulting Pool Member) shall be suspended
for such period; and
66.2.2 upon the expiry of such period by notice to the
Defaulting Pool Member (copied to the Settlement System
Administrator, the Grid Operator, the Pool Funds Administrator,
the Ancillary Services Provider and the Director) require the
Defaulting Pool Member to cease to be a party to this Agreement
with effect from the date of its De-energisation and until such
date all voting rights of the Defaulting Pool Member under this
Agreement (but not any other rights or any liabilities or
obligations of the Defaulting Pool Member) shall be automatically
suspended.
66.3 Events of Default: The events referred to in the
foregoing provision of this Clause 66 are:-
66.3.1 the Pool Member in question (the "Defaulting Pool
Member") shall fail to provide or maintain or renew in accordance
with Schedule 11 the requisite amount of Security Cover
determined pursuant to that Schedule; or
66.3.2 the Defaulting Pool Member shall fail to pay in the
manner provided in this Agreement any sum payable by it to any
Pool Creditor within three Business Days after its due date; or
66.3.3 the Defaulting Pool Member shall fail to pay in the
manner provided in this Agreement any sum payable by it hereunder
to the Settlement System Administrator or the Pool Funds
Administrator within 28 days after the Settlement System
Administrator or (as the case may be) the Pool funds
Administrator has given notice to it (copied to the Executive
Committee and the Director) that payment has not been received
and requiring such default to be remedied; or
66.3.4 the Defaulting Pool Member shall fail to pay in the
manner provided in this Agreement any sum payable by it hereunder
to the Executive Committee within 28 days after the Executive
Committee has given notice to it (copied to the Director) that
payment has not been received and requiring such default to be
remedied; or
66.3.5 the Defaulting Pool Member shall fail in any material
respect to perform or comply with any of its other obligations
under this Agreement and such default (if it is capable of
remedy) is not remedied within a reasonable period of time (not
exceeding 90 days) after the Executive Committee has given notice
to the Defaulting Pool Member (copied to the Director) of the
occurrence thereof and requiring the same to be remedied; or
66.3.6 the Defaulting Pool Member:-
(a) is unable to pay its debts (within the meaning of section
123(1) or (2) of the Insolvency Act 1986, but subject as
hereinafter provided in this Clause 66.3.6) or if any voluntary
agreement is proposed in relation to it under section 1 of that
Act or enters into any scheme of arrangement (other than for the
purpose of reconstruction or amalgamation upon terms and within
such period as may previously have been approved in writing by
the Executive Committee);
(b) has a receiver (which expression shall include an
administrative receiver within the meaning of section 29 of the
Insolvency Act 1986) of the whole or any material part of its
assets or undertaking appointed;
(c) has an administration order under section 8 of the
Insolvency Act 1986 made in relation to it;
(d) passes any resolution for winding-up other than a resolution
previously approved in writing by the Executive Committee; or
(e) becomes subject to an order by the High Court for winding-
up.
For the purposes of paragraph (a) above section 123(1)(a) of the
Insolvency Act 1986 shall have effect as if for "o750" there was
substituted o10,000 and, further, the Defaulting Pool Member
shall not be deemed to be unable to pay its debts for the
purposes of paragraph (a) above if any such demand as is
mentioned in the said section is being contested in good faith by
the Defaulting Pool Member with recourse to all appropriate
measures and procedures; or
66.3.7 the Licence (if any) granted to the Defaulting Pool
Member is determined or revoked or otherwise ceases to be in
force for any reason whatsoever,
in any such case for whatever reason and whether or not within
the control of the Defaulting Pool Member.
66.4 De-energisation:
66.4.1 If the Majority Default Calling Creditors shall give
notice to a Defaulting Pool Member under Clause 66.1.3 or the
Executive Committee shall give notice to a Defaulting Pool Member
under Clause 66.2.2 the Defaulting Pool Member shall forthwith,
and in compliance with the instructions of the Grid Operator or
(in the case of any connection to a User System) the User whose
System it is (the "Relevant User"), take all such action as may
be necessary to give effect to the relevant De-energisation.
66.4.2 If the Defaulting Pool Member shall fail to take such
action as is referred to in Clause 66.4.1 within 48 hours after
the date of any such notice referred to therein, the Grid
Operator and/or, as the case may be, the Relevant User undertakes
to each of the other Parties and the Executive Committee to use
reasonable endeavours to effect or (as the case may be) give
instructions to effect such De-energisation as quickly as
practicable having regard to all the circumstances affecting such
De-energisation (including any operational difficulties and
relevant Licence duties).
66.4.3 Each Pool Member hereby irrevocably and unconditionally
consents to its De-energisation by the Grid Operation and/or, as
the case may be, the Relevant User in circumstances set out in
Clause 66.4.2.
66.5 Sharing of risk: Where an Event of Default is declared
under Clause 66.1.1 or 66.2.1 in respect of a Defaulting Pool
Member which is a Public Electricity Supplier, then for the
period beginning on the date of the notice declaring such Event
of Default until the earlier of:-
66.5.1 the date falling 28 days thereafter; and
66.5.2 the date on which the Event of Default has been
remedied or waived by Majority Default Calling Creditors or (as
the case may be) the Pool Members in general meeting,
(but not further or otherwise) each Pool Member (other than the
Defaulting Pool Member) shall be severally liable for its
Contributory share (calculated on the basis that the Points
allocated to the Defaulting Pool Member are disregarded) of all
sums (including United Kingdom Value Added Tax) which such
Defaulting Pool Member is required under this Agreement to pay in
respect of electricity taken by the Defaulting Pool Member and
Ancillary Services during each complete Settlement Day falling
within such period and which are not paid on the due date
therefor by the Defaulting Pool Member. The Defaulting Pool
Member shall indemnify and keep indemnified each Pool Member on
demand against all sums properly paid by such Pool Member
pursuant to this Clause 66.5 together with interest thereon from
the date of payment by such Pool Member to the date of its
reimbursement (as well after as before judgment) at the Default
Interest Rate.
66.6 Indemnity on De-energisation: Where under Clause 66.4
the Grid Operator and/or the Relevant User is required to effect
or (as the case may be) give instructions to effect a De-
energisation the Defaulting Pool Member, failing which, each Pool
Member (but, in the case of each Pool Member, only in respect of
its Contributory Share at the time of receipt for the request for
indemnification, calculated on the basis that the Points
allocated to the Defaulting Pool Member are disregarded) shall
indemnify and keep indemnified the Grid Operator and/or the
Relevant User (as the case may be) on demand against any and all
liability, loss or damage which it may suffer or incur by reason
of effecting or giving instructions to effect such De-
energisation.
66.7 Accrued rights and liabilities:
66.7.1 the suspension of a person as a Pool Member and the
cessation of a person as a Pool Member and/or a Party for
whatever reason shall not prejudice its accrued rights and
liabilities under this Agreement as at the date of its suspension
or (as the case may be) cessation or its rights and liabilities
under this Agreement which may accrue in relation to the period
during which it was not so suspended or (as the case may be) it
was a Party or any of its obligations under this Agreement which
are expressed to continue notwithstanding such suspension or
cessation.
66 7 2 Without prejudice to the generality of Clause 66 7.1, a
Defaulting Pool Member shall be liable for all sums (including
United Kingdom Value Added Tax) which it is required under this
Agreement to pay in respect of electricity taken by it and
Ancillary Services pending its De- energisation pursuant to
Clause 66.4.
67 TERM AND TERMINATION
67.1 Term: This Agreement shall have no fixed duration.
67.2 Suspension of Pool Member's voting rights: A Pool Member's
voting rights shall be suspended only in the circumstances and to
the extent specified in Clauses 66.1.2 and 66.2.1.
67.3 Termination as a Party: A Pool Member shall cease to be a
Party only:-
67.3.1 in the circumstances and to the extent specified
in Clauses 8.7 to 8.10 (inclusive);
67.3.2 in the circumstances and to the extent specified
in Clauses 66.1.3 and 66.2.2; or
67.3.3 if, by unanimous resolution of all Committee
Members, the Executive Committee shall so reasonably determine
and the prior written consent of the Director shall have been
obtained.
67.4 Termination of the Agreement:
67.4.1 This Agreement may be terminated if a resolution
of Pool Members in general meeting is unanimously carried by
those Pool Members present in person or by proxy at the relevant
general meeting and the prior written consent of the Director has
been obtained.
67.4.2 The termination shall take effect from whichever
is the later in time of the date of the resolution referred to in
Clause 67.4.1 and the consent in writing of the director referred
to in that Clause.
67.5 Clause exhaustive: The Pool Members agree that the
foregoing provisions of this Clause 67, when read with the
Clauses referred to herein and Clause 8.11, are exhaustive of the
rights of suspension of a Pool Member's voting rights, of
termination of Pool Membership, of cessation as a Party and of
termination of this Agreement.
PART XX
CONFIDENTIALITY
68 DEFINITIONS AND INTERPRETATION
68.1 Definitions: In this Part XX, except where the context
otherwise requires:-
"Authorised Recipient" means, in relation to any Protected
Information, any Business Person who, before the Protected
Information had been divulged to him by NGC or any subsidiary of
NGC, had been informed of the nature and effect of Clause 69 and
who requires access to such Protected Information for the proper
performance of his duties as a Business Person in the course of
Permitted Activities;
"Business Person" means any person who is a Main Business
Person or a Corporate Functions Person, and "Business Personnel"
shall be construed accordingly;
"Confidential Information" means all data and other
information supplied to the Obligor or any nominee of the Obligor
appointed pursuant to paragraph 10 of Appendix 4 of Schedule 9 by
another Party under the provisions of this Agreement, and shall
include copies of the load modules referred to in Service Line 11
(Listings and Load Modules);
"Corporate Functions Person" means any person who:-
(a) is a director of NGC; or
(b) is an employee of NGC or any of its subsidiaries
carrying out any administrative, finance or other corporate
services of any kind which in part relate to the Main Business;
or
(c) is engaged as an agent of or an adviser to or performs
work in relation to or services for the Main Business;
"Generation business" has the same meaning as in the NGC
Transmission Licence;
"Main Business" means any business of NGC or any of its
subsidiaries as at the Effective Date or which it is required to
carry on under the NGC Transmission Licence, other than the
Generation Business;
"Main Business Person" means any employee of NGC or any
director or employee of its subsidiaries who is engaged solely in
the Main Business, and "Main Business Personnel" shall be
construed accordingly;
"Obligor" has the meaning given to that term in Clause 70.1;
"Permitted Activities" means activities carried on for the
purposes of the Main Business; and
"Protected Information" means any information relating to
the affairs of a Party which is furnished to Business Personnel
pursuant to this Agreement unless, prior to such information
being furnished, such Party has informed the recipient thereof by
notice in writing or by endorsement on such information that the
said information is not to be regarded as Protected Information.
68.2 Interpretation: For the avoidance of doubt, data and other
information which any Party is permitted or obliged to divulge or
publish to any other Party pursuant to this Agreement shall not
necessarily be regarded as being in the public domain by reason
of being so divulged or published.
69 CONFIDENTIALITY FOR NGC AND ITS SUBSIDIARIES
69.1 Protection of Protected Information: NGC and its
subsidiaries in each of their capacities in this Agreement shall
secure that Protected Information is not:-
69.1.1 divulged by Business Personnel to any person
unless that person is an Authorised Recipient;
69.1.2 used by Business personnel for the purposes of
obtaining for NGC or any of its subsidiaries or for any other
person:-
(a) any electricity licence; or
(b) any right to purchase or otherwise acquire, or to
distribute, electricity (including rights under any electricity
purchase contract, as defined in the NGC Transmission Licence);
or
(c) any contract or arrangement for the supply of electricity to
Customers or Suppliers; or
(d) any contract for the use of any electrical lines or
electrical plant belonging to or under the control of a Supplier;
or
(e) control of any body corporate which, whether directly or
indirectly, has the benefit of any such licence, contract or
arrangement; and
69.1.3 used by Business Personnel for the purpose of
carrying on any activities other than Permitted Activities,
except with the prior consent in writing of the Party to
whose affairs such
` Protected Information relates.
69.2 Exceptions: Nothing in this Clause 69 shall apply:-
69.2.1 to any Protected Information which, before it is
furnished to Business Personnel, is in the public domain; or
69.2.2 to any Protected Information which, after it is
furnished to Business Personnel:-
(a) is acquired by NGC or any subsidiary of NGC in circumstances
in which this Clause 69 does not apply; or
(b) is acquired by NGC or any subsidiary of NGC in circumstances
in which this Clause 69 does apply and thereafter ceases to be
subject to the restrictions imposed by this Clause 69; or
(c) enters the public domain,
and in any such case otherwise than as a result of (i) a breach
by NGC or any subsidiary of NGC of its obligations in this Clause
69 or (ii) a breach by the person who disclosed that Protected
Information of that person's confidentiality obligation and NGC
or any of its subsidiaries is aware of such breach; or
69.2.3 to the disclosure of any Protected Information to
any person if NGC or any subsidiary of NGC is required or
expressly permitted to make such disclosure to such person:-
(a) in compliance with the duties of NGC or any subsidiary of
NGC under the Act or any other requirement of a Competent
Authority; or
(b) in compliance with the conditions of the NGC Transmission
Licence or any document referred to in the NGC Transmission
Licence with which NGC or any subsidiary of NGC is required by
virtue of the Act or the NGC Transmission Licence to comply; or
(c) in compliance with any other requirement of law; or
(d) in response to a requirement of any stock exchange or
regulatory authority or the Panel on Take-overs and Mergers; or
(e) pursuant to the arbitration rules for the Electricity
Arbitration Association or pursuant to any judicial or other
arbitral process or tribunal having jurisdiction in relation to
NGC or its subsidiaries; or
69.2.4 to any Protected Information to the extent that
NGC or any of its subsidiaries is expressly permitted or required
to disclose that information under the terms of any agreement or
arrangement (including this Agreement, the Grid Code, the
Distribution Codes and the fuel Security Code) with the Party to
whose affairs such Protected Information relates; or
69.2.5 to any Protected Information but only to the
extent that it has been properly provided to NGC or any
subsidiary of NGC by the Settlement System Administrator pursuant
to any provision of the Pool Rules.
69.3 Use of Information by NGC: NGC and each of its subsidiaries
may use all and any information or data supplied to or acquired
by it from or in relation to the other Parties in performing
Permitted Activities including for the following purposes:-
69.3.1 the operation and planning of the NGC Transmission
System;
69.3.2 the calculation of charges and preparation of
offers of terms for connection to or use of the NGC Transmission
System;
69.3.3 the operation and planning of the Ancillary
Services Business and the calculation of charges therefor;
69.3.4 the operation of the Settlements Business;
69.3.5 the provision of information under the British
Grid Systems Agreement and the EdF Documents,
and may pass the same to subsidiaries of NGC which carry out
such activities and the Parties agree to provide all information
to NGC and its subsidiaries for such purposes.
69.4 Restrictions on Business Personnel: NGC undertakes to each
of the other Parties that, having regard to the activities in
which any Business Person is engaged and the nature and effective
life of the Protected Information divulged to him by virtue of
such activities, neither NGC nor any of its subsidiaries shall
unreasonably continue (taking into account any industrial
relations concerns reasonably held by it) to divulge Protected
Information or permit Protected Information to be divulged by any
subsidiary of NGC to any Business person:
69.4.1 who has notified NGC or the relevant subsidiary of
his intention to become engaged as an employee or agent of any
other person (other than of NGC or any subsidiary thereof) who
is:-
(a) authorised by licence or exemption to generate, transmit or
supply electricity; or
(b) an electricity broker or who is known to be engaged in the
writing of electricity purchase contracts (as hereinbefore
defined); or (c) known to be retained as a consultant to any
such person who is referred to in paragraph (a) or (b) above; or
69.4.2 who is to be transferred to the Generation
Business,
save where NGC or such subsidiary could not, in all the
circumstances,
reasonably be expected to refrain from divulging to such
Business Person
Protected Information which is required for the proper
performance of his
duties.
69.5 Identification of Protected Information: Without prejudice
to the other provisions of this Clause 69, NGC shall procure that
any additional copies made of the Protected Information, whether
in hard copy or computerised form, will clearly identify the
Protected Information as protected.
69.6 Corporate Functions Person: NGC undertakes to use all
reasonable endeavours to procure that no employee is a Corporate
Functions Person unless the same is necessary for the proper
performance of his duties.
69.7 Charge restriction condition variable: Without prejudice to
Clause 69.3, NGC and each of its subsidiaries may use and pass to
each other all and any Period Metered Demand data supplied to or
acquired by it and all and any information and data supplied to
it pursuant to Section OC6 of the Grid Code for the purposes of
Demand Control (as defined in the Grid Code), but in each case
only for the purposes of its estimation and calculation from time
to time of the variable "system maximum ACS demand" (as defined
in Condition 4 of the NGC Transmission Licence).
69.8 Ancillary Services: NGC shall secure that Protected
Information which is subject to the provisions of Clause 69.1 and
which relates to the cost of Reactive Power provided by each
individual Generator is not divulged to any Business Person
engaged in the provision of static compensation for use by the
Grid Operator.
69.9 Metering data - Distribution System: Any information
regarding, or data acquired by the Settlement System
Administrator or its agent from, Metering Equipment at Sites
which are a point of connection to a Distribution System shall
and may be passed by the Settlement System Administrator or his
agent to the operator of the relevant Distribution System. The
said operator of the relevant Distribution System may use the
same only for the purposes of the operation of such Distribution
System and the calculation of charges for the use of and
connection to such Distribution system.
69.10 Metering data - Qualifying Arrangements: The
Settlement System Administrator and the Grid Operator shall and
may pass any relevant information and data relating to the Genset
Metered Generation (including, for the avoidance of doubt, all
relevant Metered Data, as defined in paragraph 3.1.2 or Schedule
9) of any of the Generating Units which are the subject of
qualifying arrangements (as defined in section 33 of the Act) to
such person as may be specified from time to time pursuant to
such qualifying arrangements.
70 CONFIDENTIALITY OTHER THAN FOR NGC AND ITS SUBSIDIARIES
70.1 General obligation: Each Party (other than NGC and its
subsidiaries) (the "Obligor") hereby undertakes with each other
Party (including NGC and its subsidiaries) that it shall preserve
the confidentiality of, and not directly or indirectly reveal,
report, publish, disclose or transfer or use for its own purposes
Confidential Information except:-
70.1.1 in the circumstances set out in Clause 70.2; or
70.1.2 to the extent otherwise expressly permitted by
this Agreement; or
70.1.3 with the prior consent in writing of the Party to
whose affairs such Confidential Information relates; or
70.1.4 to the extent that it has been properly provided
to the Obligor by the Settlement System Administrator pursuant to
any provision of the Pool Rules.
70.2 Exceptions: The circumstances referred to in Clause 70.1.1
are:-
70.2.1 where the Confidential Information, before it is
furnished to the Obligor, is in the public domain; or
70.2.2 where the Confidential Information, after it is
furnished to the Obligor:-
(a) is acquired by the Obligor in circumstances in which this
Clause 70 does not apply; or
(b) is acquired by the Obligor in circumstances in which this
Clause 70 does apply and thereafter ceases to be subject to the
restrictions imposed by this Clause 70; or
(c) enters the public domain,
and in any such case otherwise than as a result of (i) a breach
by the Obligor of its obligations in this Clause 70 or (ii) a
breach by the person who disclosed that Confidential Information
of that person's confidentiality obligation and the Obligor
is aware of such breach; or
70.2.3 if the Obligor is required or permitted to make
disclosure of the Confidential Information to any person:-
(a) in compliance with the duties of the Obligor under the Act
or any other requirement of a Competent Authority; or
(b) in compliance with the conditions of any Licence or any
document referred to in any Licence with which the Obligor is
required to comply; or
(c) in compliance with any other requirement of law; or (d)
in response to a requirement of any stock exchange or
regulatory authority or the Panel on Take-overs and Mergers; or
(e) pursuant to the arbitration rules of the Electricity
Arbitration Association or pursuant to any judicial or other
arbitral process or tribunal having jurisdiction in relation to
the Obligor; or
70.2.4 to the employees, directors, agents, consultants
and professional advisers of the Obligor, in each case on the
basis set out in Clause 70.3
70.3 Internal procedures: With effect from the date of this
Agreement the Obligor shall adopt procedures within its
organisation for ensuring the confidentiality of all Confidential
Information which it is obliged to preserve as confidential under
Clause 70.1 These procedures are:-
70.3.1 the Confidential Information will be disseminated
within the Obligor only on a "need to know" basis;
70.3.2 employees, directors, agents, consultants and
professional advisers of the Obligor in receipt of Confidential
Information will be made fully aware of the Obligor's obligations
of confidence in relation thereto; and
70.3.3 any copies of the Confidential Information,
whether in hard copy or computerised form, will clearly identify
the Confidential Information as confidential.
71 RELEASE OF INFORMATION
71.1 Notwithstanding any foregoing provisions of this Part XX,
the Parties agree that each of them shall be at liberty to
provide copies of this Agreement and any supplemental agreement
to both or either thereof to any third party, and each of the
Parties consents to disclosure by any other Party of the fact
that it is a party to this Agreement and, where such is the case,
a Pool Member.
71.1.1 The following provisions of this Clause are
designed to facilitate the release of certain data and other
information to persons who are not Parties. Such provisions are
without prejudice to any Party's rights to disclose or use data
or information pursuant to the other provisions of this Agreement
or otherwise.
71.1.2 At the request of the Executive Committee or any
person who is not a Party and against payment by or on behalf of
the person to whom the data or other information is to be
released of a fee or charge therefor calculated mutatis mutandis
on the basis set out in Clause 34.2, the Settlement System
Administrator shall provide to such person(s) as the Executive
Committee may nominate or (as the case may be) to the person
requesting the same, data and other information received by the
Settlement System Administrator in or derived from the operation
of the Settlement System provided that:-
(a) the Pool rules specify that such data or other information
may be so released; or
(b) the Party to whose affairs such data or other information
relates has given its prior consent in writing to such
disclosure.
71.1.3 Upon request by the Executive Committee, the
Settlement System Administrator shall notify the Executive
Committee in writing of any request received by it from any
person under Clause 71.1.2 and of the name of such person and
shall give details of the data and other information provided.
71.1.4 Each of the Parties agrees to the release of data
and other information in the circumstances described in Clause
71.1.2.
71.2 The Parties acknowledge that, for the Executive Committee
and each of its sub-committees properly to carry out its duties
and responsibilities under this Agreement, the Executive
Committee may decide or be obliged to keep confidential to it
(and may instruct its sub-committees to keep confidential)
matters, reports, data and other information produced by or for,
made available to or held by, the Executive Committee or the
relevant sub-committee and, in any such case, Committee Members
shall neither disclose the same to the Pool Members(s) which they
represent nor be required by such Pool Member(s) so to disclose.
Each of the Parties agrees to respect the position of the
Executive Committee, its sub-committees and the Committee Members
accordingly.
71.3 Each of the Parties other than the Settlement System
Administrator, the Grid Operator, the Ancillary Services Provider
and the Pool Funds Administrator agrees, subject to any relevant
confidentiality restriction binding on it, to provide the
Executive Committee, the Chief Executive and the personnel
referred to in Clause 17.2.1 with all data and other information
reasonably requested by the Executive Committee and necessary for
the Executive Committee, the Chief Executive or (as the case may
be) such personnel properly to carry out its or his duties and
responsibilities under this Agreement. The Grid Operator and the
Ancillary Services Provider each agree, subject to any relevant
confidentiality restriction binding on it, to provide the
Executive Committee, the Chief Executive and the personnel
referred to in Clause 17.2.1 with such data and other information
relating to its duties, responsibilities or obligations under
this Agreement which the Executive Committee shall reasonably
request and which is necessary for the Executive Committee, the
Chief Executive or (as the case may be) such personnel to carry
out its or his duties and responsibilities under this Agreement.
71.4 Each Party acknowledges and agrees that no Party shall be in
breach of any obligation of confidentiality owed by it pursuant
to this Agreement in reporting under Clause 6.10 any breach of
the Pool Rules or its belief that any such breach has occurred.
71.5 Notwithstanding any other provision of this Agreement, the
provisions of this Part XX shall continue to bind a person after
its cessation as a Party for whatever reason.
PART XXI
THE PARTICIPATION OF NGC
72 THE PARTICIPATION OF NGC
72.1 As Grid Operator: For so long as NGC is the Grid Operator,
references in this Agreement to the Grid Operator shall be read
and construed as references to NGC acting in its capacity as Grid
Operator, and all rights, benefits, duties, responsibilities,
liabilities and obligations under this Agreement with regard to
the Grid Operator shall be those of NGC acting in that capacity.
72.2 As Ancillary Services Provider: For so long as NGC is the
Ancillary Services Provider, references in this Agreement to the
Ancillary Services Provider shall be read and construed as
references to NGC acting in its capacity as Ancillary Services
Provider, and all rights, benefits, duties, responsibilities,
liabilities and obligations under this Agreement with regard to
the Ancillary Services Provider shall be those of NGC acting in
that capacity. The Ancillary Services Provider shall have the
benefit of the obligations and undertakings entered into by the
Settlement System Administrator and Pool Funds Administrator in
this Agreement.
72.3 As Pool Member: The Parties acknowledge that NGC is not in
any of its capacities under this Agreement a Pool Member.
72.4 Wholly-owned subsidiary: NGC shall procure that so long as
Energy Settlements and Information Services Limited is appointed
Settlement System Administrator it shall at all times remain a
wholly-owned subsidiary of, and wholly controlled by, NGC.
73 [Not used.]
PART XXII
MISCELLANEOUS
74 FORCE MAJEURE
74.1 Force Majeure: Where the Settlement System Administrator,
the Grid Operator, the Pool Funds Administrator or the Ancillary
Services Provider (the "Non-Performing Party") is unable to carry
out all or any of its obligations under the SSA Arrangements by
reason of Force Majeure (but subject, in the case of the
Settlement System Administrator, to Section 33 of Schedule 4):-
74.1.1 the SSA Arrangements shall remain in effect; but
74.1.2 (a) the Non-Performing Party's relevant
obligations;
(b) the obligations of each of the other Parties owned to the
Non-Performing Party under the SSA Arrangements; and
(c) any other obligations (not being payment obligations) of
such other Parties under the SSA Arrangements owed inter se which
the relevant Party is unable to carry out directly as a result of
the suspension of the Non-Performing Party's obligations
shall be suspended for a period equal to the Force Majeure
provided that:-
(i) the suspension of performance is of no greater scope and of
no longer duration than is required by the Force Majeure;
(ii) no obligations of any Party are excused as a result of the
Force Majeure; and
(iii) in respect of the suspension of the Non-Performing
Party's obligations:-
(A) the Non-Performing Party gives the Executive Committee
(which shall promptly inform the other Parties, the Pool Auditor
and the Director) prompt notice describing the circumstance of
Force Majeure, including the nature of the occurrence and its
expected duration, and continues to furnish daily reports with
respect thereto during the period of Force Majeure; and
(B) the Non-Performing Party uses all reasonable efforts to
remedy its inability to perform.
74.2 Discussions: As soon as practicable after the occurrence of
the Force Majeure the Non-Performing Party shall discuss with the
Executive Committee how best to continue its operations and give
effect to its obligations so far as possible in accordance with
this Agreement.
75 NOTICES
75.1 Addresses: Save as otherwise expressly provided in the SSA
Arrangements, any notice or other communication to be given by
one Party to another under, or in connection with the matters
contemplated by, the SSA Arrangements shall be addressed to the
recipient and sent to the address, telex number or facsimile
number of such other Party given in the SSA Arrangements for the
purpose and marked for the attention of the person so given or to
such other address, telex number and/or facsimile number and/or
marked for such other attention as such other Party may from time
to time specify by notice given in accordance with this Clause 75
to the Party giving the relevant notice or other communication to
it.
75.2 Executive Committee: Any notice or other communication to
be given to the Executive Committee under, or in connection with
the matters contemplated by, the SSA Arrangements shall be sent
to the Secretary at the address, telex number or facsimile number
given in the SSA Arrangements for the purpose or to such other
address, telex number or facsimile number as the Secretary may
from time to time specify by notice given in accordance with this
Clause 75 to the Parties.
75.3 Deemed receipt: Save as otherwise expressly provided in the
SSA Arrangements, any notice or other communication to be given
by any Party to any other Party under, or in connection with the
matters contemplated by, the SSA Arrangements shall be in writing
and shall be given by letter delivered by hand or sent by first
class prepaid post (airmail if overseas) or telex or facsimile,
and shall be deemed to have been received:
75.3.1 in the case of delivery by hand, when delivered;
or
75.3.2 in the case of first class prepaid post, on the
second day following the day of posting or (if sent airmail
overseas or from overseas) on the fifth day following the day of
posting; or
75.3.3 in the case of telex, on the transmission of the
automatic answer-back of the addressee (where such transmission
occurs before 1700 hours on the day of transmission) and in any
other case on the day following the day of transmission; or
75.3.4 in the case of facsimile, on acknowledgment by the
addressee's facsimile receiving equipment (where such
acknowledgment occurs before 1700 hours on the day of
acknowledgment) and in any other case on the day following the
day of acknowledgment.
76 ASSIGNMENT
A Party shall not assign and/or transfer and shall not
purport to assign and/or transfer any of its rights and/or
obligations under the SSA Arrangements provided that any Party
may assign by way of security only all or any of its rights over
receivables arising under the SSA Arrangements.
77 COUNTERPARTS
This Agreement may be executed in any number of counterparts
and by the different Parties on separate counterparts, each of
which when executed and delivered shall constitute an original,
but all the counterparts shall together constitute but one and
the same instrument.
78 WAIVERS; REMEDIES NOT CUMULATIVE
78.1 Waivers: No delay by or omission of any Party in exercising
any right, power, privilege or remedy under the SSA Arrangements
shall operate to impair such right, power, privilege or remedy or
be construed as a waiver thereof. Any single or partial exercise
of any such right, power, privilege or remedy shall not preclude
any other or further exercise thereof or the exercise of any
other right, power, privilege or remedy.
78.2 Remedies not cumulative: The rights and remedies provided
by the SSA Arrangements to the Parties are exclusive and not
cumulative and exclude and are in place of all substantive (but
not procedural) rights or remedies express or implied and
provided by common law or statute in respect of the subject
matter of the SSA Arrangements (other than any such rights or
remedies provided under section 58 of the Act or any directions
(if any) issued thereunder), including without limitation any
rights any Party may possess in tort which shall include actions
brought in negligence and/or nuisance. Accordingly, each of the
Parties hereby waives to the fullest extent possible all such
rights and remedies provided by common law or statute, and
releases a Party which is liable to another (or others), its
officers, employees and agents to the same extent from all
duties, liabilities, responsibilities or obligations provided by
common law or statute in respect of the matters dealt with in
this Agreement and undertakes not to enforce any of the same
except as expressly provided herein.
78.3 Director's and Secretary of State's rights: For the
avoidance of doubt, the Parties acknowledge and agree that
nothing in the SSA Arrangements shall exclude or restrict or
otherwise prejudice or affect any of the rights, powers,
privileges, remedies, duties and obligations of the Secretary of
State or the Director under the Act or any Licence or otherwise
howsoever.
79 SEVERANCE OF TERMS
If for any reason whatever any provision of the SSA
Arrangements is or becomes invalid, illegal or unenforceable, or
is declared by any court of competent jurisdiction or any other
Competent Authority to be invalid, illegal or unenforceable or if
such Competent Authority:
(a) refuses, or formally indicates an intention to refuse,
authorisation of, or exemption to, any of the provisions of or
arrangements contained in the SSA Arrangements (in the case of a
refusal either by way of outright refusal or by way of requiring
the amendment or deletion of any provision of the SSA
Arrangements and/or the inclusion of any provision in the SSA
Arrangements and/or the giving of undertakings or the acceptance
of conditions as to future conduct before such authorisation or
exemption can be granted); or
(b) formally indicates that to continue to operate any provision
of the SSA Arrangements may expose the Parties to sanctions under
any law, order, enacting or regulations, or requests any Party to
give undertakings or to accept conditions as to future conduct in
order that such Party may not be subject to such sanctions
and, in all cases, whether initially or at the end of any earlier
period or periods of exemption then, in any such case, the
Parties will negotiate in good faith with a view to agreeing one
or more provisions which may be substituted for such invalid,
unenforceable or illegal provision which substitute provision(s)
is(are) satisfactory to the Competent Authority(ies) and
produce(s) as nearly as is practicable in all the circumstances
the appropriate balance of the commercial interest of the
Parties.
80 ENTIRE AGREEMENT
The SSA Arrangements contain or expressly refer to the entire
agreement between the Parties with respect to the subject matter
hereof and expressly exclude any warranty, condition or another
undertaking implied at law or by custom and supersedes all
previous agreements and understandings between the Parties with
respect thereto and each of the Parties acknowledges and confirms
that it does not enter into this Agreement in reliance on any
representation, warranty or other undertaking not fully reflected
in the terms of the SSA Arrangements.
81 LANGUAGE
Each notice, instrument, certificate or other document to be
given by one Party to another hereunder shall be in the English
language.
82 RESTRICTIVE TRADE PRACTICES ACT 1976
If after the commencement of section 100 of the Act (the "RTP
Section") this Agreement is subject to registration under the
Restrictive Trade Practices Act 1976 then NGC undertakes, no
earlier than five months but no later than six months after the
commencement of the RTP Section, to furnish to the Director
General of Fair Trading particulars of this Agreement and of any
agreement of which it forms part. Before furnishing such
particulars NGC will consult with the Founder Generators and the
Founder Suppliers as to the nature of the particulars to be so
furnished and will consult with the Founder Generators and
Founder Suppliers regularly regarding the progress of discussions
with the Director General of Fair Trading in regard to the
Agreement(s) so furnished.
83 ARBITRATION
83.1 Referral to arbitration: Save where expressly stated in
this Agreement to the contrary and subject to any contrary
provision of the Act or any Licence or the rights, powers, duties
and obligations of the Director or the Secretary of State under
the Act, any Licence or otherwise howsoever, any dispute or
difference of whatever nature howsoever arising under, out of or
in connection with the SSA Arrangements between any one or more
Parties shall be and is hereby referred to arbitration pursuant
to the arbitration rules of the Electricity Arbitration
Association in force from time to time.
83.2 Proper law: Whatever the nationality, residence or domicile
of any Party and wherever the dispute or difference or any part
thereof arose the law of England shall be the proper law of any
reference to arbitration hereunder and in particular (but not so
as to derogate from the generality of the foregoing) the
provisions of the Arbitration Acts 2950 (notwithstanding anything
in section 34 thereof) to 1979 shall apply to any such
arbitration wherever the same or any part of it shall be
conducted.
83.3 Third Party Claims (1): Subject always to Clause 83.6, if
any tariff customer (as defined in section 22(4) of the Act)
brings any legal proceedings in any court (as defined in the
Rules of the Supreme Court 1965 and in the County Courts Act
1984) against one or more persons, any of which is a Party (the
"Defendant Contracting Party"), and the Defendant Contracting
Party wishes to make a Third Party Claim (as defined in Clause
83.5) against any other Party (a "Contracting Party") which would
but for this Clause 83.3 have been a dispute or difference
referred to arbitration by virtue of Clause 83.1 then,
notwithstanding the provisions of Clause 83.1 which shall not
apply and in lieu of arbitration, the court in which the legal
proceedings have been commenced shall hear and completely
determine and adjudicate upon the legal proceedings and the Third
Party Claim not only between the tariff customer and the
Defendant Contracting Party but also between either or both of
them and any other Contracting Party whether by way of third
party proceedings (pursuant to the Rules of the Supreme Court
1965 or the County Court Rules 1981) or otherwise as may be
ordered by the court.
83.4 Third Party Claims (2): Where a Defendant Contracting Party
makes a Third Party Claim against any Contracting Party and such
Contracting Party wishes to make a Third Party Claim against a
further Contracting Party the provisions of Clause 83.3 shall
apply mutatis mutandis as if such Contracting Party had been the
Defendant Contracting Party and similarly in relation to any such
further Contracting Party.
83.5 Third Party Claims (3): For the purposes of this Clause 83
"Third Party Claim" shall mean:
83.5.1 any claim by a Defendant Contracting Party against a
Contracting Party (whether or not already a party to the legal
proceedings) for any contribution or indemnity; or
83.5.2 any claim by a Defendant Contracting Party against such
a Contracting Party for any relief or remedy relating to or
connected with the subject matter of the legal proceedings and
substantially the same as some relief or remedy claimed by the
tariff customer; or
83.5.3 any requirement by a Defendant Contracting Party that
any question or issue relating to or connected with the subject
matter of the legal proceedings should be determined not only as
between the tariff customer and the Defendant Contracting Party
but also as between either or both of them and a Contracting
Party (whether or not already a party to the legal proceedings).
83.6 Limitation: Clause 83.3 shall apply only if at the time the
legal proceedings are commenced no arbitration has been commenced
between the Defendant Contracting Party and another Contracting
Party raising or involving the same or substantially the same
issues as would be raised by or involved in the Third Party
Claim. The tribunal in any arbitration which has been commenced
prior to the commencement of legal proceedings shall determine
the question, in the event of dispute, whether the issues raised
or involved are the same or substantially the same.
84 JURISDICTION
84.1 Submission to jurisdiction: Subject and without prejudice
to Clauses 83 and 84.4, all the Parties irrevocably agree that
the courts of England are to have exclusive jurisdiction to
settle any disputes which may arise out of our in connection with
the SSA Arrangements and that accordingly any suit, action or
proceeding (together in this Clause 84 referred to as
"Proceedings") arising out of or in connection with the SSA
Arrangements may be brought in such courts.
84.2 Waiver: Each Party irrevocably waives any objection which
it may have now or hereafter to the laying of the venue of any
Proceedings in any such court as is referred to in this Clause
and any claim that any such Proceedings have been brought in an
inconvenient forum and further irrevocably agrees that a judgment
in any Proceedings brought in the English courts shall be
conclusive and binding upon such Party and may be enforced in the
courts of any other jurisdiction.
84.3 Agent for service of process: Each Party which is not
incorporated in any part of England or Wales agrees that if it
does not have, or shall cease to have, a place of business in
England or Wales it will promptly and hereby does appoint the
Settlement System Administrator (or such other person as shall be
acceptable to the Executive Committee) irrevocably to accept
service of process on its behalf in any Proceedings in England.
84.4 Arbitration: For the avoidance of doubt nothing contained
in the foregoing provisions of this Clause 84 shall be taken as
permitting a Party to commence Proceedings in the courts where
this Agreement otherwise provides for Proceedings to be referred
to arbitration.
85 GOVERNING LAW
The SSA Arrangements shall be governed by, and construed in
all respects in accordance with, English law.
IN WITNESS whereof this Agreement has been duly executed the day
and year first above written.
THE NATIONAL GRID COMPANY PLC
______________________________________________________
CONNECTION AND USE OF SYSTEM DOCUMENTATION
______________________________________________________
[CONFORMED COPY]
CONTENTS
Master Agreement
Schedule 1 NGC/Users' Details
Schedule 2 Definitions
Schedule 3 Accession Agreement
Exhibit 1 Supplemental Agreement Type 1
Exhibit 2 Supplemental Agreement Type 2
Exhibit 3 Supplemental Agreement Type 3
Exhibit 4 Supplemental Agreement Type 4
Exhibit 5 Supplemental Agreement Type 5
Exhibit 6 Supplemental Agreement Type 6
Exhibit 7 Connection Application
Exhibit 8 Connection Offer
Exhibit 9 Use of System Application (Generators)
Exhibit 10 Use of System Application (Suppliers)
Exhibit 11 Modification Application
Exhibit 12 Modification Offer
Exhibit 13 Modification Notification
Exhibit 14 Ancillary Services Agreement
Exhibit 15 Interface Agreement Type 1 (Generators)
Exhibit 16 Interface Agreement Type 2 (Suppliers)
Exhibit 17 Interface Agreement Type 3 (Suppliers - Licence
DATED 30TH MARCH 1990
THE NATIONAL GRID COMPANY PLC (1)
AND
OTHERS (2)
_________________________________________
MASTER
CONNECTION AND USE OF SYSTEM AGREEMENT
_________________________________________
MASTER AGREEMENT
CONTENTS
Clause Title
1 Interpretation and Construction
2 Supplemental Agreements
3 Ancillary Services
4 Interface Agreement
5 Nuclear Installations
6 Principles of Ownership
7 Metering
8 NGC Obligations
9 Compliance with the Grid Code/Distribution Code
10 Modifications
11 New Connection Sites
12 General Provisions concerning Modifications and New Connection Sites
13 Additional Parties
14 Payment
15 Limitation of Liability
16 Duration and Termination
17 Events of Default/Deenergisation
18 Transfer and Subcontracting
19 Confidentiality
20 Intellectual Property
21 Force Majeure
22 Waiver
23 Notices
24 Counterparts
25 Variations
26 Dispute Resolution
27 Jurisdiction
28 Governing Law
29 Severance of Terms
30 Language
THIS MASTER AGREEMENT is made the 30th day of March 1990 and
becomes effective on the 31st day of March 1990
BETWEEN:
(1) THE NATIONAL GRID COMPANY PLC a company registered in
England with number 2366977 whose registered office is at
National Grid House, Sumner Street, London SE1 9JU ("NGC", which
expression shall include its successors and/or permitted assigns)
and whose address, telex and facsimile numbers for notices are
set out in Schedule 1; and
(2) THE PERSONS whose names, registered numbers, registered
offices, and addresses, telex and facsimile numbers for notices
are set out in Schedule 1 (each a "User", which expression shall
include its successors and/or permitted assigns)
WHEREAS:
This Master Agreement as the following principal purposes:-
(i) to establish a contractual framework between NGC and all
Users pursuant to which Supplemental Agreements will from time to
time be made which will provide for, amongst other things:
(a) connection of a User's Equipment at a Connection Site to the
NGC Transmission System;
(b) the use by a User of the NCG Transmission System in
connection with the generation and/or transmission of
electricity;
(c) the payment to NGC of Connection Charges and/or Use of
System Charges; and
(ii) to provide for the enforcement of the Grid Code.
NOW IT IS HEREBY AGREED as follows:-
INTERPRETATION AND CONSTRUCTION
1.1 In this Agreement and in each Supplemental Agreement the
words and expressions defined in Schedule 2 shall, unless the
subject matter or context otherwise requires or is inconsistent
therewith, apply.
1.2 In the event of any inconsistency between the provisions of
any Supplemental Agreement and this Agreement, the provisions of
the Supplemental Agreement shall prevail in relation to the
Connection Site which is the subject thereof to the extent that
the rights and obligations of Users not party to that
Supplemental Agreement are not affected.
1.3.1 If in order to comply with any obligation of this
Agreement or any Supplemental Agreement any Party is under a duty
to obtain the consent or approval (including any statutory
licence or permission) ("the Consent") of a third party (or the
Consent of another Party to this Agreement) such obligation shall
be deemed to be subject to the obtaining of such Consent which
the Party requiring the Consent shall use its reasonable
endeavours to obtain including (if there are reasonable grounds
therefor) pursuing any appeal in order to obtain such Consent.
1.3.2 If such Consent is required from any Party to this
Agreement then such Party shall grant such Consent unless it is
unable to do so or it would be unlawful for it to do so provided
that such grant by such Party may be made subject to such
reasonable conditions as such Party shall reasonably determine.
1.3.3 For the avoidance of doubt if the Party who is under a
duty to obtain such Consent fails to obtain such Consent having
complied with this Clause 1.3 the obligation on that Party (in
relation to which such Consent is required) shall cease.
1.4 In this Agreement:-
(i) unless the context otherwise requires all references to a
particular Clause, Sub-Clause, paragraph, Schedule or Exhibit
shall be a reference to that Clause, Sub-Clause, paragraph,
Schedule or Exhibit in or to this Agreement and all references to
a particular Appendix shall be a reference to that Appendix to a
Supplemental Agreement;
(ii) a table of Contents and headings are inserted for
convenience only and shall be ignored in construing this
Agreement or a Supplemental Agreement, as the case may be;
(iii) references to the words "include" or "including" are to
be
construed without limitation to the generality of the preceding
words;
(iv) unless the context otherwise requires any reference to an
Act to 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; and
(v) references to the masculine shall include the feminine and
references in the singular shall include the plural and vice
versa and words denoting persons shall include any individual,
partnership, firm, company, corporation, joint venture, trust,
association, organisation or other entity, in each case whether
or not having separate legal personality.
SUPPLEMENTAL AGREEMENTS
2.1 Exhibits 1 to 6 to this Master Agreement contain the forms
of agreements contemplated to be entered into pursuant to this
Clause, being:-
Exhibit 1
Supplemental Agreement "Type 1", in respect of Connection Sites
of Users which are in existence and Commissioned at the Transfer
Date;
Exhibit 2
Supplemental Agreement "Type 2", in respect of New Connection
Sites of Users which have not been Commissioned at the Transfer
Date;
Exhibit 3
Supplemental Agreement "Type 3", for Generators with Embedded
Generating Plant or with Embedded Small Independent Generating
Plant and who are acting in that capacity and who are passing
power onto a Distribution System through a connection with a
Distribution System Commissioned at the Transfer Date;
Exhibit 4
Supplemental Agreement "Type 4", for Generators with Embedded
Generating Plant or with Embedded Small Independent Generating
Plant and who are acting in that capacity and who are passing
power on to a Distribution System through a connection with a
Distribution System which has not been Commissioned at the
Transfer Date;
Exhibit 5
Supplemental Agreement "Type 5", for Second Tier Suppliers acting
in that capacity taking Energy through any Grid Supply Point and
through a Distribution System owned or operated by any other
person; and
Exhibit 6
Supplemental Agreement "Type 6", for Generators with Minor
Independent Generating Plant which is Embedded and who are acting
in that capacity and who are Pool Members.
2.2 The Supplemental Agreements which are to be entered into
between NGC and Users who are parties to this Master Agreement as
at the Transfer Date, and which are in respect of Connection
Sites existing as at the Transfer Date, shall be in or
substantially in the relevant exhibited form of Supplemental
Agreement unless the parties thereto agree otherwise.
2.3 Any Supplemental Agreements which are entered into between
NGC and Users who are parties to this Master Agreement as at the
Transfer Date, but in respect of New Connection Sites, shall be
in or substantially in the relevant exhibited form of
Supplemental Agreement unless the parties thereto agree
otherwise.
2.4 All other Supplemental Agreements shall be in such form as
may be agreed between NGC and each User.
2.5 Obligations of Users who own or operate Distribution Systems
2.5.1 Any User who owns or operates a Distribution System
shall not Energise the connection between any Generating Plant or
Small Independent Generating Plant or Minor Independent
Generating Plant and its Distribution System nor permit the use
of its Distribution System by the same until the person owning or
operating the plant has where required completed the Use of
System Application (Generators) and has entered into a
Supplemental Agreement in the appropriate form (if any) with NGC
and (if such person is not already a party to this Master
Agreement) has where required entered into an Accession Agreement
with NGC pursuant to Clause 13.
2.5.2 Any User who owns or operates a Distribution System
shall not energise the connection between any Customer of another
Authorised Electricity Operator connected to such Distribution
System if the Demand (Active Power) being supplied to such
Customer is being purchased by such Authorised Electricity
Operator pursuant to the Pooling and Settlement Agreement unless
such Authorised Electricity Operator has first completed the Use
of System Application (Suppliers) and has entered into a
Supplemental Agreement in the appropriate form with NGC and has
notified NGC of the details relevant to such Customer to be
notified to NGC pursuant to such Supplemental Agreement and (if
the Authorised Electricity Operator is not already a party to
this Agreement) has entered into an Accession Agreement with NGC
pursuant to Clause 13.
2.5.3 NGC shall notify the relevant owner or operator of the
Distribution System in writing as soon as the conditions set out
in Sub-Clause 2.5.1 and Sub-Clause 2.5.2 have been satisfied in
any particular case together with, if appropriate, a copy of
Appendix A of Supplemental Agreement Type 5. NGC undertakes to
each Party that, for so long as it is the case, NGC shall from
time to time forthwith upon receipt of any written request from
that Party to do so, confirm in writing to any person specified
in such request that that Party is a party to this Agreement and
any Supplemental Agreement specified in such request.
2.5.4 Each owner or operator of a Distribution System shall
Deenergise the connection equipment of any such User the subject
of Sub-Clause 2.5.1 or Customer the subject of Sub-Clause 2.5.2
as soon as reasonably practicable following the instruction of
NGC in accordance with the terms of this Agreement. NGC shall
reimburse such owner or operator any expense incurred in relation
to such act of Deenergisation, if any, and shall indemnify such
owner or operator against any liability, loss or damage suffered
by it as a result of such Deenergisation. Details of any
circumstances likely to lead to such a Deenergisation shall be
notified promptly by NGC to the said owner or operator. The
owner or operator of a Distribution System shall promptly notify
HGC when the connection equipment of any User or Customer the
subject of Sub-Clauses 2.5.1 or 2.5.2 is Deenergised or
Disconnected from its Distribution System or ceases to use its
Distribution System as the case may be following the instruction
of NGC in accordance with the terms of this Agreement.
2.6 Each and every Supplemental Agreement entered into by a User
and in force from time to time will constitute a separate
agreement governed by the terms of this Master Agreement and will
be read and construed accordingly. For the avoidance of doubt no
User shall enjoy any rights nor incur any obligations against any
other User pursuant to the terms of any Supplemental Agreement.
2.7 Each and every User connected to or using the NGC
Transmission System shall be a Pool Member except for Non-
Embedded Customers being supplied by a Pool Member.
ANCILLARY SERVICES
3.1 NGC and each User agree that any Ancillary Services
agreement in respect of any Ancillary Services to be provided by
the User at or from a Connection Site or New Connection Site or a
site where an Embedded User is connected to a Distribution System
shall be in a form to be agreed between them but based
substantially on the form set out in Exhibit 14.
INTERFACE AGREEMENT
4.1 NGC and each User undertake to enter into an Interface
Agreement with each other in a form to be agreed between them but
based substantially on the forms set out in Exhibits 15, 16 and
17 as appropriate in relation to Connection Site(s) and New
Connection Site(s) where Interface Agreement(s) is/are required
pursuant to the applicable Supplemental Agreement or otherwise.
NUCLEAR INSTALLATIONS
5.1 Save as provided in Sub-Clause 5.2 below notwithstanding
anything to the contrary contained in this Agreement (but subject
to the following proviso), in circumstances affecting a generator
of nuclear electricity (a "Nuclear Generator") in which:-
(a) a breach of any of the matters specified in Sub-Clause 5.4
below may be reasonably anticipated; and
(b) there is no defence (other than that provided for under this
Sub-Clause) available to the Nuclear Generator in respect of the
breach referred to in Sub-Clause 5.1(a);
the Nuclear Generator shall be entitled to take any action or
refrain from taking any action which is reasonably necessary in
order to avert the breach referred to in Sub-Clause 5.1(a) and
each and every provision of this Agreement shall be read and
construed subject to this Clause, Provided that the Nuclear
Generator shall:-
(i) make reasonable efforts to verify the factors that it takes
into account in its assessment of the circumstances and
anticipated breach referred to above; and
(ii) use its best endeavours to comply with the relevant
provision in a manner which will not cause the Nuclear Generator
to breach any of the matters specified in Sub-Clause 5.4 below.
5.2 Sub-Clauses 5.1 and 5.3 shall not apply in relation to the
provisions of SDCI, SDC2 and SDC3 of the Grid Code which will
apply with full force and effect notwithstanding the.occurrence
of the circumstances referred to in Sub-Clause 5.1(a) (including
those.provisions specified in Sub-Clause 5.4 which relate to
Safety of Personnel and Plant).
5.3 Save as provided in Sub-Clause 5.2 above notwithstanding
anything in this Agreement, the Nuclear Generator shall be
entitled upon giving reasonable notice to all affected Parties
to require any Party to take any reasonable and proper action
whatsoever to the extent necessary in order to comply with (or
avert an anticipated breach of) any of the matters specified in
Sub-Clause 5.4 below.
5.4 The matters referred to in Sub-Clauses 5.1 and 5.3 above are
any covenant, agreement, restriction, stipulation, instruction,
provision, condition or notice contained, or referred to, in a
licence for the time being in force, granted in accordance with
the Nuclear Installations Act 1965 (or legislation amending,
replacing or modifying the same) or any consent, or approval
issued, or to take effect from time to time, under such licence,
any emergency arrangements, operating rules or other matters from
time to time, under such licence, any emergency arrangements,
operating rules or other matters from time to time approved by
the relevant authority under, or pursuant to, any such
agreements, restrictions, stipulations, instructions, provisions,
conditions or notices.
5.5 The Nuclear Generator shall indemnify and keep indemnified
any Party for any loss, damage, costs and expenses incurred by
that Party as a consequence of any action of that Party pursuant
to Sub-Clause 5.3 (to the extent that the action was not required
by any licence or agreement binding on that Party).
5.6 Notwithstanding the fact that any action or inaction allowed
by Clause 5.1 above does not constitute a breach of this
Agreement or an Event of Default under Clause 17 below, the
Nuclear Generator shall be liable to the other Parties to this
Agreement for any loss, claims, costs, liabilities and expenses
arising from such action or inaction to the extent only that such
loss, claims, costs, liabilities and expenses (had it arisen as a
result of a breach of this Agreement) would not have been limited
or excluded under the provisions of Clause 15 below.
PRINCIPLES OF OWNERSHIP
6.1 Ownership - electrical boundaries
Subject to the Transfer Scheme or any contrary agreement in this
Agreement, any Supplemental Agreement or elsewhere the division
of ownership of Plant and Apparatus shall be at the electrical
boundary, such boundary to be determined in accordance with the
following principles:-
(i) in relation to Plant and Apparatus located between the NGC
Transmission System and a Power Station, the electrical boundary
is at the busbar clamp on the busbar side of the busbar isolators
on Generators and Power Station transformer circuits;
(ii) save as specified in Clause 6.1 (iii) below, in relation to
Plant and Apparatus located between the NGC Transmission System
and a Distribution System, the electrical boundary is at the
busbar clamp on the bus barside of the.Distribution System
voltage busbar selector isolator(s) of the NGC.Transmission
System circuit or, if a conventional busbar does not exist, an
equivalent isolator. If no isolator exists an agreed bolted
connection at or
adjacent to the tee point shall be deemed to be an isolator for
these purposes;
(iii) in relation to Plant and Apparatus located between the
NGC Transmission System and a Distribution System and owned by
NGC but designed for a voltage of 132KV or below, the electrical
boundary is at the busbar clamp on the bus bar side of the busbar
selector isolator on the Distribution System circuit or, if a
conventional busbar does not exist, an equivalent isolator. If no
isolator exists, an agreed bolted connection at or adjacent to
the tee point shall be deemed to be an isolator for these
purposes; and
(iv) in the case of a metal clad switchgear bay the electrical
boundary will be the equivalent of those specified in this Clause
6.1 save that:-
(a) for rack out switchgear, the electrical boundary will be at
the busbar shutters;
(b) for SF6 switchgear, the electrical boundary will be at the
gas zone separators on the busbar side of the busbar selection
devices.
6.2 If a User wants to use transformers of specialised design
for unusual load characteristics at the electrical boundary, NGC
shall own such transformers but the User shall pay NGC for the
proper and reasonable additional cost thereof as identified by
NGC in the Offer covering such transformers. In this Sub-Clause
6.2 "unusual load characteristics" means loads which have
characteristics which are significantly different from those of
the normal range of domestic, commercial and industrial loads
(including loads which vary considerably in duration or
magnitude).
6.3 For the avoidance of doubt nothing in this Clause 6 shall
effect any transfer of ownership in any Plant or Apparatus.
METERING
7.1 Each User consents to NGC having access to and copies of all
meter readings taken from Energy Metering Equipment pursuant to
the Pooling and Settlement Agreement in any Financial Year for
the purposes of calculating Connection Charges and Use of System
Charges due from Users or for the purpose of operating the NGC
Transmission System. Such access and copies shall be obtained
from the Settlement System Administrator appointed under the
Pooling and Settlement Agreement from time to time provided
always that if the Settlement System Administrator fails to
provide such access and copies at NGC's request the User shall
supply any such meter readings in the possession of the User
direct to NGC.
7.2 The relationship between the Parties hereto with respect to
Energy Metering Equipment shall be regulated by Part XV of the
Pooling and Settlement Agreement.
7.3 In respect of Operational Metering Equipment owned by one
Party and in respect of which access and rights to deal with such
Operational Metering Equipment are not set down in any other
document the Parties shall grant each other such access and other
rights as are reasonably necessary to enable them to perform
their obligations under this Agreement and the Grid Code upon
presentation of a suitable indemnity and the Parties shall take
such action as may be necessary to regularise the position
forthwith thereafter.
NGC OBLIGATIONS
8.1 NGC agrees with each User to make available, plan, develop,
operate and maintain the NGC Transmission System in accordance
with the NGC Transmission Licence and with the Grid Code subject
to any Derogations from time to time.
COMPLIANCE WITH THE GRID CODE/DISTRIBUTION CODE
9.1 Subject to Sub-Clause 9.3 each Party agrees with each other
Party to be bound by and to comply in all respects with the
provisions of the Grid Code in so far as applicable to that
Party.
9.2 Subject to Sub-Clause 9.3 each Party agrees with each other
Party to be bound by and to comply in all respects with the
provisions of the relevant Distribution Code(s) in so far as
applicable to that Party except as may be otherwise provided in
any agreement for connection to a Distribution System.
9.3 Neither NGC nor a User need comply with the Grid Code or any
relevant Distribution Code(s) to the extent (if any) that:-
(i) either the Director has issued directions relieving NGC or
that User from the obligation under its respective licence to
comply with the Licence Standards, the Grid Code or any relevant
Distribution Code(s) in respect of such parts of the Grid Code or
any relevant Distribution Code(s) respectively as may be
specified in those directions or to the extent that NGC and a
User which does not have a Licence under the Act can and have so
agreed in any Supplemental Agreement in relation to any
Connection Site or New Connection Site and/or Derogated Plant; or
(ii) (in the case of a User) the Grid Code relates to the
provision by that User of any Ancillary Services unless there is
an Ancillary Services Agreement in force between that User and
NGC for the payment by NGC for such Ancillary Services; or-
(iii) (in the case of NGC) the Grid Code imposes any
obligation on NGC to make.available Additional Scheduling Data
(as defined in the Grid Code) before 31st December 1990.
9.4 In this Sub-Clause 9.4 the following expressions shall bear
the following meanings:
"Required Standard"
in relation to an item of
Derogated Plant, the respective
standard required of that item
(which shall not exceed that
required by the Grid Code or
the Licence Standards, as the
case may be) as specified in or
pursuant to the relevant
Derogation;
"Back Stop Date''
in relation to an item of
Derogated Plant, the date by
which it is to attain its
Required Standard, as specified
in or pursuant to the relevant
Derogation
Each User undertakes to NGC and NGC undertakes to each User to
use all reasonable endeavours to carry out such works as are
necessary to ensure that each item of Derogated Plant owned or
operated by that User or NGC (as appropriate) is brought up to
the Required Standard applicable to it no later than the
Back-Stop Date applicable to it.
9.5 The terms and provisions of the Fuel Security Code shall
prevail to the extent that they are inconsistent with the Grid
Code or any Distribution Code and the Parties' obligations under
this Agreement shall be construed accordingly.
MODIFICATIONS
10.1 No Modification may be made by or on behalf of a User or NGC
otherwise than in accordance with the provisions of this Clause
10.
10.2 Modifications Proposed by Users
10.2.1 If a User wishes to make a Modification it shall
complete and submit to NGC a Modification Application and comply
with the terms thereof.
10.2.2 NGC shall make the Modification Offer to that User as
soon as practicable and (save where the Director consents to a
longer period) in any event not more than 3 months after receipt
by NGC of the Modification Application. The Modification Offer
shall include details of any variations NGC proposes to make to
the Supplemental Agreement which applies to the Connection Site
in question. During such period NGC and the User concerned shall
discuss in good faith the implications of the proposed
Modifications.
10.2.3 The Modification Offer shall remain open for acceptance
for 3 months from the date of its receipt by that User unless
either that User or NGC makes an application to the Director
under Condition 10C of the NGC Transmission Licence, in which
event the Modification Offer shall remain open for acceptance by
that User until the date 14 days after any determination by the
Director pursuant to such application.
10.2.4 If the Modification Offer is accepted by that User the
Supplemental Agreement relating to the Connection Site in
question shall be varied to reflect the terms of the Modification
Offer and the Modification shall proceed according to the terms
of the Supplemental Agreement as so varied.
10.3 Modifications proposed by NGC
10.3.1 If NGC wishes to make a Modification to the NGC
Transmission System, NGC shall complete and submit to each User a
Modification Notification and shall advise each User of any works
which NGC reasonably believes that User may have to carry out as
a result.
10.3.2 Any User which considers that it shall be required to
make a Modification (an "Affected User Modification") as a result
of the Modification proposed by NGC (an "Affected User") may as
soon as practicable after receipt of the Modification
Notification and (save where the Director consents to a longer
period) within the period stated therein (which shall be
sufficient to enable the User to assess the implications of the
proposed Modification and in any event shall not be less than 3
months) may make an application to the Director under Condition
10C of the Transmission Licence.
10.3.3 As soon as practicable after the receipt of the
Modification Notification or, if an application to the Director
has been made, the determination by the Director, and in any
event within two months thereof, each Affected User shall
complete and submit a Modification Application to NGC and comply
with the terms thereof. No fee shall be payable by any User to
NGC in respect of any such Modification Application.
10.3.4 Once a Modification Application has been made by a User
pursuant to Sub-Clause 10.3.2 the provisions of Sub-Clauses
10.2.2, 10.2.3 and 10.2.4 shall thereafter apply.
10.4 To the extent that the provisions of the Nuclear Site
Licence Provisions Agreement (being an agreement dated 30th March
1990 between NGC and Nuclear Electric plc and described as such)
relate to Modifications (either by a User or by NGC) as (and only
as) between the parties to such agreement they shall prevail over
the provisions of this Clause 10 to the extent that they are
inconsistent.
NEW CONNECTION SITES
11.1 If a User wishes to connect a New Connection Site it shall
complete and submit to NGCa Connection Application and comply
with the terms thereof.
11.2 Without prejudice to Condition 10B4 of the NGC Transmission
Licence NGC shall make a Connection Offer to that User as soon as
practicable after receipt of the Connection Application and (save
where the Director consents to a longer period) in any event not
more than 3 months after receipt by NGC of the Connection
Application.
11.3 The Connection Offer shall remain open for acceptance for 3
months from its receipt by that User unless either that User or
NGC makes an application to the Director under Condition 10C of
the NGC Transmission Licence, in which event the Connection Offer
shall remain open for acceptance until the date 14 days after any
determination by The Director pursuant to such application.
11.4 If the Connection Offer is accepted by that User the
connection shall proceed according to the terms of the
Supplemental Agreement entered into consequent upon acceptance of
the Offer.
GENERAL PROVISIONS CONCERNING MODIFICATIONS AND NEW CONNECTION SITES
12.1 Subject to the payment of its Reasonable Charges, if any, as
provided for in this sub-clause NGC undertakes to each User to
provide all advice and assistance reasonably requested by that
User to enable that User adequately to assess the implications
(including the feasibility) of making a Modification to the
User's Equipment or the User's System (whether such Modification
is to be made at the request of NGC or of the User) or of
constructing a New Connection Site (including adequately
assessing the feasibility of making any Connection Application or
considering the terms of any Connection Offer). If the proposed
Modification by the User is or may be required as a result of a
Modification proposed by NGC then NGC shall provide such advice
and assistance free of charge. If the proposed Modification is or
may be proposed by the User or if the advice and assistance is in
respect of a New Connection Site NGC may charge the User
Reasonable Charges for such advice and assistance. The provision
of such advice and assistance shall be subject to any
confidentiality obligations binding on NGC and that User.
12.2 When giving such advice and assistance NGC shall comply with
Good Industry Practice.
12.3 NGC shall have no obligation to compensate any User (the
"First User") for the cost or expense of any Modification
required to be made by any User as a result of any NGC
Modification under Sub-Clause 10.3.1. Where such NGC Modification
is made as a result of the construction of a New Connection Site
or a Modification for another User(the "Other User"), the Other
User shall compensate the First User for the reasonable and
proper cost and expense of any Modifications required to be made
by the First User as a result of that NGC Modification. Such
compensation shall be paid to the First User by the Other User
within thirty days of production to the Other User of a receipted
invoice (together with a detailed breakdown of such reasonable
costs and expenses) for the expenditure which has been incurred
by the First User.
12.4 Modification Offers and Connection Offers conditional upon
other Modification Offers and Connection Offers
If at the time of making any Offer or Modification Offer or
Connection Offer to a User ("the Second Offer") there is an
outstanding Modification Offer(s) or Connection Offer(s) to
another User(s) ("the First Offer") which if accepted would
affect the terms of the Second Offer NGC shall at the time of
making the Second Offer
(i) inform the recipient(s) of both the First Offer(s) and
Second Offer(s) in writing that there is another Offer
outstanding which might affect them; and
(ii) be entitled to make the First Offer(s) and Second Offer(s)
conditional upon other outstanding Offers not having been or
being accepted; and
(iii) be entitled to vary the terms of either Offer if the
other Offer is accepted first on the same procedures as those set
out in Clauses 10.2.2 to 10.2.4 or 11.2 to 11.4 inclusive as the
case may be.
ADDITIONAL PARTIES
13.1 The Parties shall admit as an additional party to this
Master Agreement any person who accepts a Connection Offer from
NGC or any new Embedded User (the "New Party") and who is not at
the time already a Party. Such admission shall take effect by way
of Accession Agreement prepared by NGC at the expense and cost of
the New Party and to be executed by NGC for itself and on behalf
of all other Parties. Upon execution of the Accession Agreement
by NGC and the New Party and subject to the terms and conditions
of that Accession Agreement, the New Party shall become a Party
for all purposes of this Agreement.
13.2 Each Party hereby authorises and instructs NGC to sign any
such Accession Agreement on its behalf and undertakes not to
withdraw, qualify or revoke any such authority or instruction at
any time.
13.3 NGC shall promptly notify all Parties in writing that the
New Party has become a Party.
PAYMENT
14.1 NGC will invoice Users for Connection Charges and/or Use of
System Charges due under each Supplemental Agreement in the
following manner:-
(i) in the case of recurrent monthly charges other than the
Energy related charges identified in Appendix D to the relevant
Supplemental Agreement NGC shall despatch an invoice on or before
the 15th day of the month for the charges due in relation to that
month;
(ii) in the case of the Energy related recurrent monthly charges
identified in Appendix D to the relevant Supplemental Agreement
NGC shall despatch an invoice on or before the 1st day of a month
covering the charges due in relation to the period expiring on
the 15th day of the preceding month and commencing on the 16th
day of the month before that;
(iii) unless otherwise specified in this Agreement where
charges are payable other than monthly NGC shall despatch an
invoice not less than 30 days prior to the due date for payment
specified in the relevant Appendix to the Supplemental Agreement.
14.2 Payment
Users shall pay NGC Connection Charges and/or Use of System
Charges due under each Supplemental Agreement in the following
manner:-
(i) in the case of recurrent monthly charges on the 15th day of
the month in which NGC's invoice therefor was despatched (if
despatched on the first day of that month) or, in all other
cases, on the 15th day of the month following the month in which
NGC's invoice therefor was despatched unless, in any such case,
the said date is not a Business Day in which case payment shall
be made on the next Business Day;
(ii) unless otherwise specified in this Agreement where charges
are payable other than monthly within 30 days of the date of
NGC's invoice therefor.
14.3 All payments hereunder shall be made by the variable direct
debit method or such other form of bankers automated payment as
shall be approved by NGC to the account number, bank and branch
specified by NGC in Schedule I or in the case of sums payable to
a User the account number, bank and branch of the User set out in
Schedule I (or such other account and/or bank as NGC or a User
may from time to time notifying writing to the other).
14.4 If any Party fails to pay on the due date any amount
properly due under this Agreement such Party shall pay to the
Party to whom such amount is due interest on such overdue amount
from and including the date of-such failure to (but excluding)
the date of actual payment (as well after as before judgement) at
the rate of 4% over Barclays Bank PLC base rate for the time
being and from time to time. Interest shall accrue from day to
day.
14.5 All sums payable by one Party to the other pursuant to this
Agreement whether of charges, interest or otherwise shall (except
to the extent otherwise required by law) be paid in full, free
and clear of and without deduction set off or deferment in
respect of sums the subject of any disputes or claims whatsoever
save for sums the subject of a final award or judgement (after
exhaustion of all appeals if this opportunity is taken) or which
by agreement between NGC and those Parties may be so deducted or
set-off.
14.6 All amounts specified hereunder or under any Supplemental
Agreement shall be exclusive of any Value Added Tax or other
similar tax.
14.7 If upon the request of any User the Director determines that
the NGC Connection Charges and/or Use of System Charges payable
by that User (including any variations thereof) have not been
calculated strictly in accordance with the terms of the
statements prepared for the purposes of Condition 10 of the NGC
Transmission Licence (setting out the basis upon which the
charges for use of system and for connection to the NGC
Transmission System will be made) NGC shall pay to such User an
amount in respect of each charging period equal to the amount (if
any) by which the User has been overcharged as a result, together
with interest thereon from the date upon which such charges were
paid until the date of payment of such interest. Such interest
shall accrue from day to day at the rate specified in Sub-Clause
14.4.
LIMITATION OF LIABILITY
15.1 Subject to Sub-Clauses 15.5, 2.5.4 and 5.5 and any
liquidated damages provisions of any Supplemental Agreement and
the payment adjustment provisions of the relevant Ancillary
Services Agreement and save where any provision of this Agreement
provides for an indemnity each Party agrees and acknowledges that
no Party (the "Party Liable") nor any of its officers, employees
or agents shall be liable to any of the other Parties for loss
arising from any breach of this Agreement other than for loss
directly resulting from such breach and which at the date hereof
was reasonably foreseeable as not unlikely to occur in the
ordinary course of events from such breach in respect of:-
15.1.1 physical damage to the property of any of the other
Parties, or its or their respective officers, employees or
agents; and/or
15.1.2 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.
15.2 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.
15.3 Subject to Sub-Clauses 15.5, 2.5.4 and 5.5 and any
liquidated damages provision of any Supplemental Agreement 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:-
15.3.1 any loss of profit, loss of revenue, loss of use, loss
of contract or loss of goodwill; or
15.3.2 any indirect or consequential loss; or
15.3.3 loss resulting from the liability of any other Party to
any other person howsoever and whensoever arising save as
provided in Sub-Clauses 15.1.2 and 15.2.
15.4 The rights and remedies provided by this Agreement to the
Parties are exclusive and not cumulative and exclude and are in
place of all substantive (but not procedural) rights or remedies
express or implied and provided by common law or statute in
respect of the subject matter of this Agreement, 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.
15.5 Save as otherwise expressly provided in this Agreement, this
Clause 15 insofar as it excludes or limits liability shall
override any other provision in this Agreement provided that
nothing in this Clause 15 shall exclude or restrict or otherwise
prejudice or affect any of:-
15.5.1 the rights, powers, duties and obligations of any Party
which are conferred or created by the Act, the Licence or the
Regulations; or
15.5.2 the rights, powers, duties and obligations of the
Director or the Secretary of State under the Act, any Licence or
otherwise howsoever.
15.6 Each of the Sub-Clauses of this Clause 15 shall:-
15.6.1 be construed as a separate and severable contract term,
and if one or more of such Sub-Clauses is held to be invalid,
unlawful or otherwise unenforceable the other or others of such
Sub-Clauses shall remain in full force and effect and shall
continue to bind the Parties; and
15.6.2 survive termination of this Agreement.
15.7 Each Party acknowledges and agrees that each of the other
Parties holds the benefit of Sub-Clauses 15.1 and 15.2 and 15.3
above for itself and as trustee and agent for its officers,
employees and agents.
15.8 Each Party acknowledges and agrees that the provisions of
this Clause 15 have been the subject of discussion and
negotiation and are fair and reasonable having regard to the
circumstances as at the date hereof.
15.9 For the avoidance of doubt, nothing in this Clause 15 shall
prevent or restrict any Party enforcing any obligation (including
suing for a debt) owed to it under or pursuant to this Agreement.
DURATION AND TERMINATION
16.1 This Agreement shall continue in relation to each User until
terminated in accordance with this Clause 16 or pursuant to
Clause 17.
16.2 A User shall automatically cease to be a Party to this
Agreement upon termination of all Supplemental Agreements entered
into by that User.
16.3 Termination or expiry of a particular Supplemental Agreement
shall not, of itself, cause the relevant User to cease to be a
Party to this Agreement.
16.4 Termination or a person ceasing to be a Party to this
Agreement shall not affect any rights or obligations of any Party
which may have accrued to the date of termination or expiry and
shall not affect any continuing obligations of any Party under
this Agreement.
16.5 Following termination of this Agreement Clause 19 shall
remain in full force and effect.
EVENTS OF DEFAULT/DEENERGISATION
17.1 It shall be an event of default if:-
(i) a User shall fail to pay (other than by inadvertent error in
funds transmission which is discovered by NGC, notified to that
User and corrected within 2 Business Days thereafter) any amount
properly due or owing from that User to NGC pursuant to this
Agreement and such failure continues unremedied for 7 Business
Days after the due date for payment; or
(ii) in respect of a User:-
(a) an order of the High Court is made or an effective
resolution passed for its insolvent winding up or dissolution; or
(b) a receiver (which expression shall include an administrative
receiver within the meaning of Section 29 Insolvency Act 1986) of
the whole or any material part of its assets or undertaking is
disappointed; or
(c) an administration order under Section 8 of the Insolvency
Act 1986 is made or if a voluntary arrangement is proposed under
Section I of that Act; or
(d) a User 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 Director); or
(e) any of the events referred to in (a) to (d) above has
occurred and is continuing and a User is unable to pay its debts
(within the meaning of Section 123(1) or (2) of the Insolvency
Act 1986 save that such sections shall have effect as if for o750
there was inserted o250,000 and a User shall not be deemed to be
unable to pay its debts if any demand for payment is being
contested in good faith by that User with recourse to all
appropriate measures and procedures)
and in any such case within 28 days of his appointment the
liquidator, receiver, administrative receiver, administrator,
nominee or other similar officer has not provided to NGC a
guarantee of future performance by the User of this Agreement and
all Supplemental Agreements to which the User is a party in such
form and amount as NGC may reasonably require
17.2 Provided that at the time the failure specified in
Sub-Clause 17.1(i) is still continuing or the circumstances
referred to in Sub-Clause 17.1 (ii) still exist NGC may having
given 48 hours notice of an event of default Deenergise all of
the User's Equipment which is the subject of a Supplemental
Agreement with that User or may as appropriate instruct the
operator of a Distribution System to Deenergise such User's
Equipment provided that prior to Deenergisation the User may
refer the matter to the Disputes Resolution Procedure.
17.3 If notice is given to a User in accordance with Clause
60.1.3 or 60.2.2 of Part XVII of the Pooling and Settlement
Agreement and that User shall fail to take such action as is
referred to in Clause 60.4.1 of Part XVII of the Pooling and
Settlement Agreement within 48 hours after the date of any such
notice referred to therein, NGC may Deenergise the User's
Equipment.
17.4 If the event of default under Sub-Clause 17.2 or 17.3 is
still continuing six months after the later of Deenergisation and
the conclusion of the Disputes Resolution Procedure in favour of
NGC, NGC may Disconnect all that User's Equipment at each
Connection Site where that User's Equipment is connected and:-
(i) NGC and that User shall remove any of the User's Equipment
and NGC Assets on the other Party's land within 6 months or such
longer period as may be agreed between the Parties concerned;
(ii) that the User shall pay to NGC forthwith all Termination
Amounts; and
(iii) that the User shall cease to be a Party to this Agreement.
TRANSFER AND SUBCONTRACTING
18.1 The rights, powers, duties and obligations of a User under
this Agreement or Any Supplemental Agreement are personal to that
User and that User may not assign or transfer the benefit or
burden of this Agreement save in the following circumstances:-
(i) upon the disposal by that User of the whole of its business
or undertaking it shall have the right to transfer its rights and
obligations under this Agreement and all relevant Supplemental
Agreements to the purchaser thereof on condition that the
purchaser if not already a User enters into an Accession
Agreement with NGC under Clause 13 and confirms to NGC in writing
either that all of the technical or related conditions, data,
information, operational issues or other matters specified in or
pursuant to the relevant Supplemental Agreement(s) or Grid Code
by the User seeking the transfer will remain unchanged or, if any
such matters are to be changed, the purchaser first notifies NGC
in writing of such changes which NGC will consider promptly and
in any event within 28 days of receiving notice of such change
and until such consideration is complete the transfer shall not
be effective. If having considered such changes NGC in its
reasonable opinion does not consider the proposed changes
reasonably satisfactory to NGC it shall consult with the User
seeking to undertake such transfer and pending the outcome
thereof to NGC's reasonable satisfaction the transfer shall not
be effective provided always that the User may refer any dispute
to the Disputes Resolution Procedure. Such transfer shall become
effective once the changes are reasonably satisfactory to NGC or
have been determined to be so under the Disputes Resolution
Procedure;
(ii) upon the disposal by a User of part of its business
undertaking comprising User's Equipment at one or more Connection
Sites that User shall have the right to transfer its rights and
obligations under all relevant Supplemental Agreements to the
purchaser thereof on condition that the purchaser (if not already
a User) enters into an Accession Agreement with NGC under Clause
13 and confirms to NGC in writing either that all of the
technical or related conditions, data, information, operational
issues or other matters specified in or pursuant to the relevant
Supplemental Agreement(s) or Grid Code by the User seeking the
transfer will remain unchanged or, if any such matters are to be
changed, the purchaser first notifies NGC in writing of such
changes which NGC will consider promptly and in any event within
28 days of receiving notice of such change and until such
consideration is complete the assignment shall not be effective.
If having considered such changes NGC in its reasonable opinion
does not consider the proposed changes reasonably satisfactory to
NGC it shall consult with the User seeking to undertake such
transfer and pending the outcome thereof to NGC's reasonable
satisfaction the transfer shall not be effective provided always
that the User may refer any dispute to the Disputes Resolution
Procedure. Such transfer shall become effective once the changes
are reasonably satisfactory to NGC or have been determined to be
so under the Disputes Resolution Procedure:
(iii) a User may assign or charge its benefit under this
Agreement and any Supplemental Agreements in whole or in part by
way of security.
18.2 Each Party shall have the right to sub-contract or delegate
the performance of any of its obligations or duties arising under
this Agreement or any Supplemental Agreement including activities
envisaged by the Grid Code without the prior consent of any other
Party. The sub-contracting by a Party of the performance of any
obligations or duties under this Agreement or any Supplemental
Agreement or of any activities envisaged by the Grid Code shall
not relieve that Party from liability for performance of such
obligation or duty.
CONFIDENTIALITY Confidentiality for NGC and its subsidiaries
19.1 NGC and its subsidiaries in each of their capacities in this
Agreement shall secure that Protected Information is not:-
19.1.1 divulged by Business Personnel to any person unless
that person is an Authorised Recipient;
19.1.2 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
19.1.3 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.
19.2 Nothing in Sub-Clause 19.1 shall apply:-
19.2.1 to any Protected Information which, before it is
furnished to Business Personnel, is in the public domain; or
19.2.2 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 Sub-Clause 19.1 does not apply; or
(b) is acquired by NGC or any subsidiary of NGC in circumstances
in which Sub-Clause 19.1 does apply and thereafter ceases to be
subject to the restrictions imposed by such Sub-Clause; or
(c) enters the public domain, and in any such case otherwise
than as a result of a breach by NGC or any subsidiary of NGC of
its obligations in Sub-Clause 19.1, or a breach by the person who
disclosed the Protected Information of that person's
confidentiality obligation and NGC or any of its subsidiaries is
aware of such breach; or
19.2.3 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 under
the Act or any other requirement of a Competent Authority; or
(b) in compliance with the conditions of the Transmission
Licence or any document referred to in the 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 Supply
Industry Arbitration Association or pursuant to any judicial or
other arbitral process or tribunal having jurisdiction in
relation to NGC or any of its Subsidiaries; or
(f) in compliance with the requirements of Section 35 of the Act
and with the provisions of the Fuel Security Code; or
19.2.4 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.
19.3 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:-
19.3.1 the operation and planning of the NGC Transmission
System;
19.3.2 the calculation of charges and preparation of offers of
terms for connection to or use of the NGC Transmission System;
19.3.3 the operation and planning of the Ancillary Services
Business and the calculation of charges therefor;
19.3.4 the operation of the Settlements Business;
19.3.5 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 hereto agree to provide all
information to NGC and its subsidiaries for such purposes.
19.4 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:-
19.4.1 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 is known to be engaged in the
writing of electricity purchase contracts (as defined in the NGC
Transmission Licence); or
(c) known to be retained as a consultant to any such person who
is referred to in (a) or (b) above; or
19.4.2 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.
19.5 Without prejudice to the other provision of this Clause 19
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.
19.6 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 this duties.
19.7 Without prejudice to Clause 19.3, 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 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).
19.8 NGC shall secure that Protected Information which is subject
to the provisions of Clause
19.1 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 (as defined in the Pooling and Settlement
Agreement).
19.9 Any information regarding, or data acquired by the
Settlement System Administrator or its agent from Energy 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 only use the same for the purposes of the
operation of such Distribution System and the calculation of
charges for use of and connection to the Distribution System.
Confidentiality other than for NGC and its subsidiaries
19.10 Each User hereby undertakes with each other User and
with 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 in the circumstances set out in
Sub-Clause 19.11 or to the extent otherwise expressly permitted
by this Agreement or with the prior consent in writing of the
Party to whose affairs such Confidential Information relates.
19.11 The circumstances referred to in Sub-Clause 19.10 are:-
19.11.1 where the Confidential Information, before it is
furnished to the User, is in the public domain; or
19.11.2 where the Confidential Information, after it is
furnished to the User:-
(a) is acquired by the User in circumstances in which Sub-Clause
19.10 does not apply; or
(b) is acquired by the User in circumstances in which Sub-Clause
19.10 does apply and thereafter ceases to be subject to the
restrictions imposed by Sub-Clause 19.10; or
(c) enters the public domain, and in any such case otherwise
than as a result of a breach by the User of its obligations in
Sub-Clause 19.10 or a breach by the person who is disclosed that
Confidential Information of that person's confidentiality
obligation and the User is aware of such breach; or
19.11.3 if the User is required or permitted to make disclosure
of the Confidential Information to any person:-
(a) in compliance with the duties of the User 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 User 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 Supply
Industry Arbitration Association or pursuant to any judicial or
other arbitral process or tribunal having jurisdiction in
relation to the User, or
19.11.4 where Confidential Information is furnished by the User
to the employees, directors, agents, consultants and professional
advisors of the User, in each case on the basis set out in
Sub-Clause 19.12.
19.12 With effect from the date of this Agreement the User
shall adopt procedures within its organisation for ensuring the
confidentiality of all Confidential Information which it is
obliged to preserve as confidential under Clause 19.10. These
procedures are:-
19.12.1 the Confidential Information will be disseminated
within the User only on a "need to know" basis;
19.12.2 employees, directors, agents, consultants and
professional advisers of the User in receipt of Confidential
Information will be made fully aware of the User's obligations of
confidence in relation thereto; and
19. 12.3 any copies of the Confidential Information, whether in
hard copy or computerised form, will clearly identify the
Confidential Information as confidential.
19.13 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.
19.14 Notwithstanding any other provision of this Agreement,
the provisions of this Clause 19 shall continue to bind a person
after its cessation as a Party for whatever reason.
20. INTELLECTUAL PROPERTY
All Intellectual Property relating to the subject matter of this
Agreement conceived, originated, devised, developed or created by
a Party, its officers, employees, agents or consultants during
the currency of this Agreement or any Supplemental Agreement
shall vest in such Party as sole beneficial owner thereof save
where the Parties agree in writing otherwise.
21. FORCE MAJEURE
If any Part of (the "Non-Performing Party") shall be unable to
carry out any of its obligations under this Agreement due to a
circumstance of Force Majeure this Master Agreement and the
relevant Supplemental Agreement shall remain in effect but:-
(a) the Non-Performing Party's relevant obligations;
(b) the obligations of each of the other Parties owed to the
Non-Performing Party under this Agreement and/or the relevant
Supplemental Agreement as the case may be; and
(c) any other obligations of such other Parties under this
Agreement owed between themselves 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 circumstance of 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 that arose before the Force
Majeure causing the suspension of performance are excused as a
result of the Force Majeure;
(iii) the Non-Performing Party gives the other Parties prompt
notice describing the circumstance of Force Majeure, including
the nature of the occurrence and its expected duration, and
continues to furnish regular reports with respect thereto during
the period of Force Majeure;
(ivi) the Non-Performing Party uses all reasonable efforts to
remedy its inability to perform; and
(v) as soon as practicable after the event which constitutes
Force Majeure the Parties shall discuss how best to continue
their operations so far as possible in accordance with this
Agreement, any Supplemental Agreement and the Grid Code.
22. Waiver
No delay by or omission of any Party in exercising any right,
power, privilege or remedy under this Master Agreement or any
Supplemental Agreement or the Grid Code 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 future
exercise thereof or the exercise of any other right, power,
privilege or remedy.
NOTICES
23.1 Save as otherwise expressly provided in this Agreement, any
notice or other communication to be given by one Party to another
under, or in connection with the matters contemplated by, this
Agreement shall be addressed to the recipient and sent to the
address, telex number or facsimile number of such other Party set
out in Schedule 1 to this Agreement for the purpose and marked
for the attention of the company secretary 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 23 to the
Party giving the relevant notice or other communication to it.
23.2 Save as otherwise expressly provided in this Agreement, any
notice or other communication to be given by any Party to any
other Party under, or in connection with the matters contemplated
by, this Agreement shall be in writing and shall be given by
letter delivered by hand or sent by first class prepaid post
(airmail if overseas) or telex or facsimile, and shall be deemed
to have been received:
23.2.1 in the case of delivery by hand, when delivered; or
23.2.2 in the case of first class prepaid post, on the second
day following the day of posting or (if sent airmail from
overseas) on the fifth day following the day of posting; or
23.2.3 in the case of telex, on the transmission of the
automatic answer-back of the address (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
23.2.4 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.
24. COUNTERPARTS.
This Agreement and any Supplemental 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.
25. VARIATIONS.
25.1 No variations to this Master Agreement shall be effective
unless made in writing and signed by or on behalf of all the
Parties. The Parties shall effect any amendment required to be
made to this Master Agreement by the Director as a result of a
change in the Transmission Licence or an order or direction made
pursuant to the Act or a Licence or as a result of settling the
terms of any Supplemental Agreement and each Party hereby
authorises and instructs NGC to make any such amendment on its
behalf and undertakes not to withdraw, qualify or revoke such
authority or instruction at any time.
25.2 NGC and each User acknowledges that, because there has been
insufficient time to discuss and agree the details of the
Appendices to each Supplemental Agreement, those details may be
inaccurate. Accordingly,
(a) each User and NGC undertake to discuss in good faith the
correct identification of the details of each part of Appendix F
of each Supplemental Agreement entered into between NGC and the
User with a view to amending the same as necessary to reflect the
correct position. To the extent that agreement on the correct
position cannot be reached within 12 months after the date of
that Supplemental Agreement the matter shall be referred to
arbitration for determination in accordance with Clause 26 of
this Agreement and such details shall be amended accordingly
following such agreement or determination (as the case may be);
and
(b) during the Financial Year ending 31st March 1991 each User
and NGC undertake to discuss in good faith the correct
identification of the details of each part of Appendix A to D of
each Supplemental Agreement entered into between NGC and the
User. In relation to Appendix A of each Supplemental Agreement,
NGC undertakes to establish a new asset register, specifying all
Plant and Apparatus owned by NGC which is necessary to connect
each User's Equipment to the NGC Transmission System at each
Connection Site, during the course of the Financial Year ending
31 st March 1991 in accordance with paragraph 2.2 of Appendix E
to such Supplemental Agreement. Such new asset register shall,
provided that NGC has complied with such paragraph 2.2, take
effect from Ist April 1991. Following the establishment of such
new asset register, each such Appendix A and any provisions of
the relevant Supplemental Agreement which refer to it shall, to
the extent appropriate, be amended accordingly.
2.6 DISPUTE RESOLUTION
26.1 Save where expressly stated in this Agreement to the
contrary and subject to any contrary provision of the Act, any
Licence, or the Regulations, or the rights, powers, duties and
obligations of the Director or the Secretary of State under the
Act, any Licence or otherwise howsoever, any dispute or
difference of whatever nature howsoever arising under out of or
in connection with this Agreement between any one or more Parties
hereto shall be and is hereby referred to arbitration pursuant to
the arbitration rules of the Electricity Supply Industry
Arbitration Association in force from time to time.
26.2 Whatever the nationality, residence or domicile of any Party
to this Agreement 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.
26.3 Subject always to Sub-Clause 26.6 below, if any tariff
customer (as defined in Section 22(4) of the Electricity Act
1989) 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 to this Agreement (the
"Defendant Party"), and the Defendant Party, and the Defendant
Party wishes to make a Third Party Claim (as defined in
Sub-Clause 26.5 below) against any other Party to this Agreement
("the Other Party") which would but for this Sub-Clause have been
a dispute or difference referred to arbitration by virtue of
Sub-Clause 26.1 above then, notwithstanding the provisions of
Sub-Clause 26.1 above 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 Party but also between
either or both of them and any Other 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.
26.4 Where a Defendant Party makes a Third Party Claim against
any Other Party and such Other Party wishes to make a Third Party
Claim against a further Party the provisions of Sub-Clause 26.3
above shall apply mutatis mutandis as if such Party had been the
Defendant Party and similarly in relation to any such further
Party.
26.5 For the purposes of this Clause 26 "Third Party Claim" shall
mean:-
(a) any claim by a Defendant Party against any other Party
(whether or not already a party to the legal proceedings) for any
contribution or indemnity, or
(b) any claim by a Defendant Party against such an Other 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
(c) any requirement by a Defendant 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 Party but also as between
either or both of them and an Other Party (whether or not already
a party to the legal proceedings).
26.6 Sub-Clause 26.3 above shall apply only if at the time the
legal proceedings are commenced no arbitration has been commenced
between the Defendant Party and an Other 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.
27. JURISDICTION
27.1 Subject and without prejudice to Clause 26 and to Sub-Clause
27.4 below, all the Parties irrevocably agree that the courts of
England are to have exclusive jurisdiction to settle any disputes
which may arise out of or in connection with this Agreement
including the Grid Code and any Supplemental Agreement and that
accordingly any suit, action or proceeding (together in this
Clause 27 referred to as "Proceedings") arising out of or in
connection with this Agreement and any Supplemental Agreement may
be brought in such courts.
27.2 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.27
and any claim that any such Proceedings have been brought in an
inconvenient forum.and further irrevocably agrees that judgement
in any Proceedings brought in the English.courts shall be
conclusive and binding upon such Party and may enforced in the
courts.of any other jurisdiction.
27.3 Each Party which is not incorporated in any part of England
and Wales agrees that if.it does not have, or shall cease to
have, a place of business in England and Wales it will.promptly
appoint, and shall at all times maintain, a person in England and
Wales.irrevocably to accept service of process on its behalf in
any Proceedings in England.
27.4 For the avoidance of doubt nothing contained in Sub-Clauses
27.1 to 27.3 above 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.
28. GOVERNING LAW.
This Agreement and each Supplemental Agreement shall be governed
by and construed in all respects in accordance with English law.
29. SEVERANCE OF TERMS
If any provision of this Agreement or any Supplemental Agreement
is or becomes or is declared invalid, unenforceable or illegal by
the courts of any competent jurisdiction to which it is subject
or by order of any other Competent Authority such invalidity,
unenforceability or illegality shall not prejudice or affect the
remaining provisions of this Agreement or any Supplemental
Agreement which shall continue in full force and effect
notwithstanding such invalidity, unenforceability or illegality.
30. LANGUAGE
Each notice, instrument, certificate or other document to be
given by one Party to another under this Agreement shall be in
the English language.
IN WITNESS WHEREOF the hands of the duly authorised
representatives of the Parties the date first above written
THE NATIONAL GRID COMPANY PLC
BY E. CHEFNEUX
E. Chefneux
NATIONAL POWER PLC
BY A. SWANSON
A. Swanson
POWERGEN PLC
BY D.J. JACKSON
D.J. Jackson
NUCLEAR ELECTRIC PLC
BY R. MELVILLE
R. Melville
THE NATIONAL GRID COMPANY PLC
(PUMPED STORAGE DIVISION)
BY E. CHEFNEUX
E. Chefneux
BRITISH NUCLEAR FUELS PLC
BY J.J.R. RYCROFT
J.J.R. Rycroft
UNITED KINGDOM ATOMIC ENERGY
AUTHORITY
BY R. PECKOVER
R. Peckover
CENTRAL POWER LTD
BY R.D. MURRAY
R.D. Murray
EASTERN ELECTRICITY PLC
BY W.G. WATSON
W.G. Watson
EAST MIDLANDS ELECTRICITY PLC
BY P.J. CHAMP
P.J. Champ
LONDON ELECTRICITY PLC
BY C.L. MYERS
C.L. Myers
MANWEB PLC
BY C.W. LEONARD
C.W. Leonard
MIDLANDS ELECTRICITY PLC
BY R.D. MYURRAY
R.D. Myurray
NORTHERN ELECTRIC PLC
BY J.A. HARMSWORTH
J.A. Harmsworth
NORWEB PLC
BY A. CROWDER
A. Crowder
SEEBOARD PLC
BY S.M. WIDE
S.M. Wide
SOUTHERN ELECTRIC PLC
BY J. HART
J. Hart
SOUTH WALES ELECTRICITY PLC
BY J.W. EVANS
J.W. Evans
SOUTH WESTERN ELECTRICITY PLC
BY M.J. CARSON
M.J. Carson
YORKSHIRE ELECTRICITY GROUP PLC
BY A.W.J. COLEMAN
A.W.J. Coleman
SCHEDULE l
NGC/USERS
NAME NOTICES
BANK DETAILS
(and registered
number)
(and registered
office)
(address as registered office
unless otherwise)
stated)
(telex
number)
(fax number)
THE NATIONAL GRID COMPANY PLC TELEX 25815 2366977 FAX 01-620 8547
National Grid House
Sumner Street,
London SE I 9JU
NATIONAL POWER PLC TELEX: 883141 2366963 FAX: 01-634 5811
Sudbury House
15 Newgate Street
London EC1A 7AU
POWERGEN PLC TELEX: 881 1400 2366970 FAX: 01-826 2890
53 New Broad Street,
London EC2M 1JJ
NUCLEAR ELECTRIC PLC TELEX: 883141 2264251 FAX: 01-634 7282
Barnett Way
Sudbury House
Barnwood 15 Newgate Street
Gloucester GL4 7RS London EC1A 7AU
THE NATIONAL GRID COMPANY PLC
(PUMPED STORAGE DIVISION)
(details as above)
BRITISH NUCLEAR FUELS PLC TELEX: 627581 1002607 FAX 0925 822711
Warrington Road
Risley
Warrington
Cheshire WA3 6AS
UNITED KINGDOM ATOMIC ENERGY TELEX: 22565
AUTHORITY FAX: 01 930 8403
11 Charles II Street,
AEA Technology
London SW1Y 4QP
Winfrith
Dorchester
Dorset DT2 8DH
CENTRAL POWER LIMITED TELEX: 338 092 2251099 FAX: 021 423 1907
Mucklow Hill
Halesowen
West Midlands B62 8BP
EASTERN ELECTRICITY PLC TELEX: 98123 2366906 FAX: 0473-601036
P O Box 40
Wherstead
Ipswich IP9 2AQ
EAST MIDLANDS ELECTRICITY PLC TELEX: 37424 2366923 FAX: 0602 209789
P O Box 4
North P D O
398 Coppice Road
Arnold
Nottingham NG5 7HX
LONDON ELECTRICITY PLC TELEX: 885342 2366852 FAX: 01-242 2815
Templar House
81-87 High Holborn
London WC1V 6NU
MANWEB PLC TELEX: 61277 2366937 FAX: 0244 377269
Sealand Road
Chester CH1 4LR
MIDLANDS ELECTRICITY PLC TELEX: 338092 2366928 FAX: 021 422331
Mucklow Hill
Halesowen
West Midlands B62 8BP
NORTHERN ELECTRIC PLC TELEX: 53324 2366942 FAX: 091 235 2109
Carliol House
Newcastle-Upon-
Tyne NE99 1SE
NORWEB PLC TELEX: 6695971 2366949 FAX: 061 875 7360
Talbot Road
Manchester M16 0HQ
SEEBOARD PLC TELEX: 87230 2366867 FAX: 0273 21705
Grand Avenue
Hove
East Sussex BN3 2LS
SOUTHERN ELECTRIC PLC TELEX: 848282 2366879 FAX: 0628 827124
Littlewick Green
Maindenhead
Berks. SL6 3QB
SOUTH WALES ELECTRICITY PLC TELEX: 498331 2366985 FAX: 0222 777759
St Mellons
Cardiff CF3 9XW
SOUTH WESTERN ELECTRICITY PLC TELEX: 2366894 FAX: 0454 616369
800 Park Avenue
Aztec West
Almondsbury
Avon BS12 4SE
YORKSHIRE ELECTRICITY TELEX: 55128 GROUP PLC
FAX: 0532 892123
2366995
Scarcroft
Leeds LS14 3HS
SCHEDULE 2
DEFINITIONS
"Accession Agreement" an agreement in or substantially
in the form set out in Schedule
3.
"The Act" the Electricity Act 1989.
"Active Power" the product of voltage and the
in phase component of
alternating current measured in
units of watts and standard
multiples thereof i.e. 1000
watts = 1kW 1000 kW = 1MW 1000
MW, IGW 1000 GW, 1TW.
"Affiliate" in relation to NGC means any
holding company or subsidiary of
NGC or any subsidiary of a
holding company of NGC, 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 section is not in force at
the date of this Agreement as if
such latter section were in
force at such date.
"Agency Business" any business of NGC or any
Affiliate or Related Undertaking
in the purchase or other
acquisition or sale or other
disposal of electricity as agent
for any other Authorised
Electricity Operator.
"This Agreement" this Agreement including the
Schedules and any Supplemental
Agreements and the Appendices
thereto as the same may be
amended, extended, supplemented,
novated or modified in
accordance with the terms hereof
from time to time provided that
each Supplemental Agreement
shall constitute an agreement
separate from each other
Supplemental Agreement.
"Agreed Ancillary Services" Commercial Ancillary Services
and Part 2 System Ancillary
Services.
"Ancillary Service" a System Ancillary Service
and/or a Commercial Ancillary
Service as the case may be.
"Ancillary Services Business" the business of NGC or any
Affiliate or Related Undertaking
as operator of NGC's
Transmission System in the
acquisition and/or sale (other
than as part of the Generation
Business) of Ancillary Services.
"Annual Average Cold Spell (ACS) Conditions"
a particular combination of
weather elements which gives
rise to a level of peak Demand
within an NGC Financial Year
which has a 50% chance of being
exceeded as a result of weather
variation alone.
"Apparatus" all equipment in which
electrical conductors are used,
supported or of which they may
form a part.
"Authorised Electricity Operator"
any person (other than NGC in
its capacity as operator of the
NGC Transmission System) who is
authorised to generate, transmit
or supply electricity and for
the purposes of Condition 10A to
10C inclusive of the
Transmission Licence shall
include any person who has made
application to be so authorised
which application has not been
refused and any person
transferring electricity to or
from England and Wales across an
interconnector or who has made
application for use of
interconnector which has not
been refused.
"Authorised Recipient" in relation to any Protected
Information, means 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 Sub-Clause
19.1 of the Master Agreement 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.
"Black Start Capability" as defined in the Grid Code.
"Business Day" any week day other than a
Saturday on which banks are open
for domestic business in the
City of London.
"Business Person" any person who is a Main
Business Person or a Corporate
Functions Person and Business
Personnel shall be construed
accordingly.
"Central Despatch" the process of Scheduling and
issuing direct instructions by
NGC referred to in paragraph 1
of Condition 7 of the
Transmission Licence.
"Charging Rules" the provisions of Appendix E to
the Supplemental Agreements.
"Commercial Ancillary Services'"
Ancillary Services, other than
System Ancillary Services
utilised by NGC 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 (as
defined in the Grid Code) under
any other agreement. A
nonexhaustive list of commercial
Ancillary Services is set out
below:
Frequency Control by means of a
Pumped Storage Unit Spinning in
Air
Frequency Control by means of
adjustment to a Pumped Storage
Unit Pumping Programme
Frequency Control by means of
Demand reduction
Reactive Power supplied by means
of synchronous or static
compensators
Hot Standby
In addition, there is also the
Ancillary Service of cancelled
start which arises as part of
the ordinary operational
instruction of Generating Units
and therefore needs no separate
capability description. Defined
terms used in this definition
are defined in the Grid Code.
"Commissioned" in respect of Plant and
Apparatus commissioned before
the Transfer Date means Plant
and Apparatus recognised as
having been commissioned
according to the commissioning
procedures current at the time
of commissioning and in respect
of Plant and Apparatus
commissioned after the Transfer
Date means Plant and/or
Apparatus certified by the
Independent Engineer as having
been commissioned in accordance
with the relevant Commissioning
Programme.
"Competent Authority" 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.
"Confidential Information" all data and other information
supplied to a User by another
Party under the provisions of
this Agreement.
"Connection Application" an application for a New
Connection Site in the form or
substantially in the form set
out in Exhibit 7.
"Connection Charges" charges made or levied or to be
made or levied for the carrying
out (whether before or after the
date on which the NGC
Transmission Licence comes into
force) of works and provision
and installation of electrical
plant, electric lines and
ancillary meters in constructing
entry and exit points on NGC's
Transmission System, together
with charges in respect of
maintenance and repair of such
items in so far as not otherwise
recoverable as Use of System
Charges, all as more fully
described in the Transmission
Licence, whether or not such
charges are annualised.
"Connection Conditions" or "CC" that portion of the Grid Code
which is identified as the
Connection Conditions.
"Connection Offer" an offer for a New Connection
Site in the form or
substantially in the form set
out in Exhibit 8 including any
revision or extension of such
offer.
"Connection Site" each location more particularly
described in the relevant
Supplemental Agreement at which
a User's Equipment and the NGC
Assets required to connect that
User to the NGC Transmission
System are situated. If two or
more Users own or operate Plant
and Apparatus which is connected
at any particular location that
location shall constitute two
(or the appropriate number of)
Connection Sites.
"Connection Site Demand Capability"
the capability of a Connection
Site to take power to the
maximum level forecast by the
User from time to time and
forming part of the Forecast
Data supplied to NGC pursuant to
the Grid Code together with such
margin as NGC shall in its
reasonable opinion consider
necessary having regard to NGC's
duties under its Transmission
Licence.
"Control Telephony" as defined in the Grid Code.
"Corporate Functions Person" any person who is:
(a) a director of NGC; or
(b) 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) engaged as an agent of or
adviser to or performs work
in relation to or services
for the Main Business.
''Customer" A person to whom electrical
power is provided (whether or
not he is the provider of such
electrical power) other than
power to meet Station Demand of
that person.
"Data Registration Code" or "DRC"
the portion of the Grid Code
which is identified as the Data
Registration Code is identified
as the Data Registration Code.
"Decommission" cessation of use by a User of
that User's Equipment at any
given Connection Site for a
continuous period exceeding 12
months pursuant to the relevant
Supplemental Agreement.
"Deenergisation" or "Deenergise(d)"
the movement of any isolator,
breaker or switch or the removal
of any fuse whereby no
Electricity can flow to or from
the relevant System through the
User's Equipment.
"Demand" the demand of MW and MVAr of
electricity (i.e both Active
Power and Reactive Power)
,unless otherwise stated.
"Derogation" a direction issued by the
Director relieving a Party from
the obligation under its Licence
to comply with such parts of the
Grid Code or any Distribution
Code or in the case of NGC the
Transmission Licence as may be
specified in such direction and
"Derogated" shall be construed
accordingly.
"Derogated Plant" shall mean Plant or Apparatus
which is the subject of a
Derogation.
"Despatch" the issue by NGC of instructions
for Generating Plant to achieve
specific Active Power and
Reactive Power Levels or target
voltage levels within Generation
Scheduling and Despatch
Parameters and by stated times.
"Detailed Planning Data" detailed additional data which
NGC requires under the PC in
support of Standard Planning
Data.
"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" the Director General of
Electricity Supply appointed for
the time being pursuant to
Section 1 of the Act.
"Disconnection" permanent physical disconnection
of a User's Equipment at any
given Connection Site which
permits removal thereof from the
Connection Site or removal of
all NGC's Assets therefrom (as
the case may be).
"Disputes Resolution Procedure" arbitration pursuant to the
arbitration rules of the
Electricity Supply Industry
Arbitration Association in force
from time to time.
"Distribution Code(s)" the Distribution Code(s) drawn
up by Public Electricity
Suppliers pursuant to the terms
of their respective Licences) as
from time to time revised in
accordance with those Licences.
"Distribution System" the system consisting (wholly or
mainly) of electric lines owned
or operated by any Authorised
Electricity Operator and used
for the distribution of
electricity from Grid Supply
Points or generation sets or
other entry points to the point
of delivery to Customers or
Authorised Electricity
Operators, and includes any
Remote Transmission Assets
operated by such Authorised
Electricity Operator and any
electrical plant and meters
owned or operated by the
Authorised Electricity Operator
in connection with the
distribution of electricity, but
shall not include any part of
NGC's Transmission System.
"Earthing" as defined in the Grid Code.
"the EdF Documents" as defined in the Pooling and
Settlement Agreement.
"Electricity" Active Energy and Reactive
Energy (in each case as defined
in the Pooling and Settlement
Agreement.
"Embedded" a direct connection to a
Distribution System or the
System of any other User to
which Customers and/or Power
Stations are connected.
"Energisation" or "Energise(d)" the movement of any isolator,
breaker or switch or the
insertion of any fuse so as to
enable Energy to flow from and
to the relevant System through
the User's Equipment.
"Energy" the electrical energy produced,
flowing or supplied by an
electric circuit during a time
interval, being the integral
with respect to time of the
power, measured in units of
watt-hours or standard multiples
thereof i.e.
1000 Wh = 1kWh
1000 kWh = 1MWh
1000 Mwh = 1GWh
1000 Gwh = 1TWh.
"Energy Metering Equipment" has the meaning given to the
phrase "Metering Equipment" in
the Pooling and Settlement
Agreement.
"Energy Metering System" has the meaning given to the
phrase "Metering System" in the
Pooling and Settlement
Agreement.
"Estimated Demand" the forecast Demand (Active
Power) data filed with NGC
pursuant to paragraph 1.2 of the
Charging Rules.
"Executive Committee" the committee established
pursuant to Clause 14.1 of the
Pooling and Settlement
Agreement.
"Financial Year" the period of 12 months ending
on 31st March in each calendar
year.
"FMS Date" has the meaning given in the
Pooling and Settlement
Agreement.
"Force Majeure" 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 and 35 of the
Act) provided that lack of funds
shall not be interpreted as a
cause beyond the reasonable
control of that Party.
"Fuel Security Code" the document of that title
designated as such by the
Secretary of State as from time
to time amended.
"Generation Business" the authorised business of NGC
or any Affiliate or Related
Undertaking in the generation of
electricity or the provision of
Ancillary Services, in each case
from pumped storage and from the
Kielder hydro electric
generating station.
"Generation Licence" the licence granted to a
Generator pursuant to Section
6(1)(a) of the Act.
"Generating Plant" a Power Station subject to
Central Despatch.
"Generating Unit" unless otherwise provided in the
Grid Code any Apparatus which
produces electricity.
"Generator" a person who generates
electricity under licence or
exemption under the Act.
"Good Industry Practice" 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" the Grid Code drawn up pursuant
to the Transmission Licence, as
from time to time revised in
accordance with the Transmission
Licence.
"Grid Supply Point" a point of delivery from the NGC
Transmission System to a
Distribution System or a Non-
Embedded Customer.
"Gross Asset Value" the value calculated by NGC in
accordance with recognised
accounting principles and
procedures as published by NGC
from time to time.
"High Voltage" a voltage exceeding 650 volts.
"Independent Generating Plant" a Power Station not subject to
Central Despatch.
"Intellectual Property" patents, trade marks, service
marks, rights in designs, trade
names, copyrights and topography
rights (whether or not any of
the same are registered and
including applications for
registration of any of the same)
and rights under licences and
consents in relation to any of
the same and all rights or forms
of protection of a similar
nature or having equivalent or
similar effect to any of the
same which may subsist anywhere
in the world.
"Interconnectors" the electric lines and
electrical plant and meters
owned or operated by NGC solely
for the transfer of electricity
to or from the NGC Transmission
System into or out of England
and Wales.
"Interconnectors Business" the business of NGC or any
Affiliate or Related Undertaking
in the operation of any
interconnector.
"Isolation" as defined in the Grid Code.
"Licence" any licence granted pursuant to
Section 6 of the Act.
"Licence Standards" the standards to be met by NGC
under Condition 12 of the
Transmission Licence.
"Local Safety Instructions" as defined in the Grid Code.
"Main Business" any business of NGC or any of
its Subsidiaries as at the
Transfer Date or which it is
required to carry on under the
Transmission Licence, other than
the Generation Business.
"Main Business Person" 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.
"Master Agreement" the Agreement to which this is
Schedule 2, excluding any
Supplemental Agreements.
"Material Effect" an effect causing a Party to
effect any works or to alter the
manner of operation of its Plant
and/or Apparatus at the
Connection Site or the site of
connection which in either case
involves that Party in
expenditure of more than
o10,000.
"Maximum Export Capacity" the maximum amount of power to
be passed into the NGC
Transmission System at the
Connection Site as notified by
the User to NGC as part of the
Registered Data from time to
time.
"Minor Independent Generating Plant"
Any Independent Generating Plant
with a Registered Capacity of
less than 50 MW.
"Modification" any actual or proposed
replacement, renovation,
modification, alteration, or
construction by or on behalf of
a User or NGC to either that
Party's Plant or Apparatus or
the manner of its operation
which has or may have a Material
Effect on another Party at a
particular Connection Site.
"Modification Application" an application in the form or
substantially in the form set
out in Exhibit 11.
"Modification Notification" a notification in the form or
substantially in the form set
out in Exhibit 13.
"Modification Offer" an offer in the form or
substantially in the form set
out in Exhibit 12, including any
revision or extension of such
offer.
"Natural Demand" the Demand (Active Power) which
is necessary to meet the needs
of Customers excluding that
Demand (Active Power) met by
Embedded Generating Units which
is to be paid for otherwise than
pursuant to the Pooling and
Settlement Agreement.
"Net Asset Value" the Gross Asset Value of the NGC
Asset in question less
depreciation over the
Replacement Period calculated in
accordance with recognised
accounting principles and
procedures.
"New Connection Site" a proposed Connection Site in
relation to which there is no
Supplemental Agreement in force
between the Parties.
"NGC Assets" the Plant and Apparatus owned by
NGC necessary to connect the
User's Equipment to the NGC
Transmission System at any
particular Connection Site in
respect of which NGC charges
Connection Charges (if any) as
listed or identified in Appendix
A to the Supplemental Agreement
relating to each such Connection
Site.
"NGC Engineering Charges" Reasonable Charges for time
spent by NGC engineers and other
staff in relation to NGC
Transmission System development
and related services as
published from time to time by
NGC.
"NGC Transmission System" 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 substation or to
another Power Station or between
substations 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.
"Non-embedded Customer" a Customer except for a PES
receiving electricity direct
from the NGC Transmission System
irrespective of from whom it is
supplied.
"Operating Code" or "OC" the portion of the Grid Code
which is identified as the
Operating Code.
"Operation Diagrams" as defined in the Grid Code.
"Operational" in relation to a Connection Site
means that the same has been
Commissioned (which for the
avoidance of doubt does not
necessarily include
commissioning of Generating
Units connected at the
Connection Site) and that the
User can use such User's
Equipment to undertake those
acts and things capable of being
undertaken by Pool Members.
"Operational Effect" any effect on the operation of
any System which causes that
System to operate (or be at a
materially increased risk of
operating) differently to the
way in which it would have
normally operated in the absence
of that effect.
"Operational Intertripping" the automatic tripping of
circuit breakers to prevent
abnormal system conditions
occurring, such as over voltage,
overload, system instability
etc. after the tripping of other
circuit breakers following power
system fault(s) which includes
System to Generating Plant and
System to Demand intertripping
schemes.
"Operational Metering Equipment"
meters, instrument transformers
(both voltage and current),
transducers, metering protection
equipment including alarms
circuitry and their associated
outstations as may be necessary
for the purpose of CC.6.5.5 of
the Grid Code and the
corresponding provision of the
relevant Distribution Code.
"Operator" has the meaning defined in the
Pooling and Settlement
Agreement.
"Part 1 System Ancillary Services"
Ancillary Services which are
required for System reasons and
which must be provided by Users
in accordance with the
Connection Conditions. An
exhaustive list of Part 1 System
Ancillary Services is included
in the Grid Code (in that part
of CC8.1 headed Part 1) namely:
Reactive Power supplied
otherwise than by means of
synchronous or static
compensators
Frequency Control by means of
Frequency Sensitive Generation.
"Part 2 System Ancillary Services"
Ancillary Services which are
required for System reasons and
which must be provided by a User
if the User has agreed to
provide them under a
Supplemental Agreement. A
nonexhaustive list of Part 2
System Ancillary Services is
included in the Grid Code (in
that part of CC8.1 headed Part
2) namely:-
Frequency Control by means of
Gas Turbine Unit Fast Start.
Frequency Control by means of
Pumped Storage Unit Fast Start.
Black Start Capability.
"Party" each person for the time being
and from time to time party to
the Master Agreement and any
successor(s) in title to, or
permitted assign(s) of, such
person;
"Payment Date" a date for payment of NGC
Connection Charges and/or Use of
System Charges, determined in
accordance with Sub-Clause 14.2
of the Master Agreement.
"Permitted Activities" activities carried on for the
purposes of the Main Business.
"PES Supply Business Demand" the Demand (Active Power) of any
PES which is attributable to
each Grid Supply Point.
"Planning Code or PC" that portion of the Grid Code
which is identified as the
Planning Code.
"Plant" fixed and moveable items used in
the generation and/or supply
and/or transmission of
electricity other than
Apparatus.
"Pool Member" any person who is admitted to
membership in accordance with
the Pooling and Settlement
Agreement.
"Pooling and Settlement Agreement"
the agreement of that title for
the time being approved (or to
be approved) by the Secretary of
State or by the Director as from
time to time amended and, where
the context so permits, includes
the agreement known as the
Initial Settlement Agreement of
even date with the above
agreement, and made between the
parties to the above agreement
as at such date.
"Power Station" An installation comprising one
or more Generating Units (even
where sited separately) owned
and/or controlled by the same
Generator, which may reasonably
be considered as being managed
as one Power Station.
"Protected Information" any information relating to the
affairs of a Party which is
furnished to Business Personnel
pursuant to this Agreement or
pursuant to a direction under
section 34 of the Act or
pursuant to the provisions of
the Fuel Security Code 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.
"Public Electricity Supplier or "PES"
a holder of a Public Electricity
Supply Licence.
"Public Electricity Supply Licence"
a licence issued under Section
6(1)(c) of the Act.
"Reasonable Charges" reasonable cost reflective
charges comparable to charges
for similar services obtainable
in the open market.
"Registered Capacity" the normal full load capacity of
a Generating Unit as declared by
the Generator, less the MW
consumed by the Generating Unit
through the Generating Unit's
unit transformer when producing
the same.
"Registered Data" those items of Standard Planning
Data and Detailed Planning Data
which upon connection become
fixed (subject to any subsequent
changes).
"Registrant" has the meaning defined in the
Pooling and Settlement
Agreement.
"Regulations"" the Electricity Supply
Regulations 1988 or any
amendment or reenactment
thereof.
"Related Undertaking" in relation to NGC means any
undertaking in which NGC 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.
"Remote Transmission Assets" any Plant and Apparatus or
meters owned by NGC which (a)
are embedded in a Distribution
System or a User System and
which are not directly connected
by Plant and/or Apparatus owned
by NGC to a substation owned by
NGC and (b) are by agreement
between NGC and such PES or User
under the direction and control
of such PES or User.
"Replacement Period" in relation to an NGC Asset, the
period commencing on the date on
which such NGC Asset is or was
originally Commissioned, after
which it is assumed for
accounting purposes such NGC
Asset will need to be replaced,
which shall be 40 years unless
otherwise agreed between the
Parties to a supplemental
Agreement and recorded in the
relevant Supplemental Agreement.
"Safety Coordinator(s)" a person or persons nominated by
NGC and each User to be
responsible for the coordination
of Safety Precautions (as
defined in the Grid Code) at
each Connection Point when work
and/or testing is to be carried
out on a system which
necessitates the provision of
Safety Precautions on HV
Apparatus, pursuant to OC8.
"Safety Rules" the rules of NGC or a User that
seek to ensure that persons
working on Plant and/or
Apparatus to which the rules
apply are safeguarded from
hazards arising from the System.
"Scheduling" the process of compiling and
issuing a Generation Schedule
(as that expression is defined
in the Grid Code) as set out in
SDC1.
"SDC or Scheduling and Despatch Code"
that portion of the Grid Code
which specifies the Scheduling
and Despatch process.
"Second Tier Supplier" or "STS" a holder of a Second Tier
Supply
Licence.
"Second Tier Supply Licence" a licence granted under Section
6(2)(a) of the Act.
"Separate Business" each of the Transmission,
Settlements, Generation,
Interconnectors and Ancillary
Services Businesses taken
separately from one another and
from any other business of NGC,
but so that where all or any
part of such business is carried
out by an Affiliate or Related
Undertaking of NGC such part of
the business as is carried out
by that Affiliate or Related
Undertaking shall be
consolidated with any other such
business of NGC (and of any
other Affiliate or Related
Undertaking) so as to form a
single Separate Business.
"Settlements Business" means the business of NGC or any
Affiliate or Related Undertaking
as settlement system
administrator under the Pooling
and Settlement Agreement.
"Site Common Drawings" as defined in the Grid Code.
"Site Responsibility Schedule" a schedule containing the
information and prepared on the
basis of the provisions set out
in Appendix 1 of the CC.
"Small Independent Generating Plant"
any Independent Generating Plant
with a Registered Capacity of 50
MW or more.
"Station Demand" in respect of any generating
station and Generator, means
that consumption of electricity
(excluding any supply to any
Customer of the relevant
Generator who is neither such
Generator nor a member of a
qualifying group of which such
Generator is a part) from the
NGC Transmission System or a
Distribution System at premises
on the same site as such
generating station, with
premises being treated as on the
same site as each other if they
are: (i) the same premises; (ii)
immediately adjoining each
other; or (iii) separated from
each other only by road, railway
or watercourse or by other
premises (other than a pipeline,
electric line or similar
structure) occupied by the
consumer in question or by any
other person who together with
that consumer forms a qualifying
group; and for the purpose of
this definition "generating
station" and "qualifying group"
shall have the meanings given
those expressions when used in
the Electricity (Class
Exemptions from the Requirement
for a Licence) Order 1990.
"STS Demand" the Demand (Active Power) of any
STS which is attributable to
each Grid Supply Point.
"Supplemental Agreement" has the meaning set out in
Clause 2 of the Master Agreement
"Supplier" a Public Electricity Supplier or
Second Tier Supplier.
"System" any User System or the NGC
Transmission System as the case
may be.
"Termination Amount" in relation to a Connection
Site, the amount calculated in
accordance with paragraph 4 of
the Charging Rules.
"Total System" the NGC Transmission System and
all User Systems in England and
Wales.
"Transfer Date" 2400 hours on 30th March 1990.
"Transfer Scheme" the transfer scheme made by
Central Electricity Generating
Board established under Section
66 of the Act or by the
Secretary of State under Section
69 of the Act.
"Transmission Business" the authorised business of NGC
or any Affiliate or Related
Undertaking in the planning,
development, construction and
maintenance of the NGC
Transmission System (whether or
not pursuant to directions of
the Secretary of State made
under Section 34 or 35 of the
Act) and the operation of such
system for the transmission of
electricity, including any
business in providing
connections to the NGC
Transmission System but shall
not include (i) any other
Separate Business or (ii) any
other business (not being a
Separate Business) of NGC or any
Affiliate or Related Undertaking
in the provision of services to
or on behalf of any one or more
persons.
"Transmission Licence" the licence granted to NGC under
Section 6(1)(b) of the Act.
"Undertaking" bears the meaning ascribed to
that expression by Section 259
of the Companies Act 1985 as
substituted by Section 22 of the
Companies Act 1989 and if that
latter section is not in force
at that date of this Agreement
as if such latter section were
in force at such date.
"Use of System" use of NGC's Transmission System
for the transport of electricity
by any Authorised Electricity
Operator.
"Use of System Application" an application for a
Supplemental Agreement Type 5 or
Type 6 in the form or
substantially in the form set
out in Exhibit 9 or 10 as
appropriate.
"Use of System Charges" charges made or levied or to be
made or levied by NGC for the
provision of services as part of
the Transmission Business to any
Authorised Electricity Operator
as more fully described at
paragraph 2 of Condition 10 and
paragraph 2 of Schedule 3 to the
Transmission Licence and in the
Supplemental Agreements but
shall not include Connection
Charges.
"User's Licence" a User's licence to carry on its
business granted pursuant to
Section 6 of the Act.
"User's Equipment" the Plant and Apparatus owned by
a User (ascertained in the
absence of agreement to the
contrary by reference to the
rules set out in Clause 6 of the
Master Agreement) which either
is connected to the NGC Assets
forming part of the NGC
Transmission System at any
particular Connection Site or
which that User wishes so to
connect or is connected to a
Distribution System or which
that User wishes so to connect.
"User System" 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 NonEmbedded 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
operated by such User or other
person and any Plant and/or
Apparatus and meters owned or
operated by such User or other
person in connection with the
distribution of electricity but
does not include any part of the
NGC Transmission System.
SCHEDULE 3
THIS ACCESSION AGREEMENT is made on [ ] between: -
1. [ ], a company incorporated [with limited
liability] under the laws of [ ] ([registered number]) and
having its [registered office] at [ ] (the
"New Party"); and
2. The National Grid Company PLC ("NGC") on its own behalf and
on behalf of all the other parties to the Master Agreement
referred to below.
WHEREAS: -
By an agreement (the "Master Connection and Use of System
Agreement") dated [ ], 1990 made between the Parties named
therein and NGC the parties thereto agreed to give effect to and
be bound by certain rules and procedures for establishing a
contractual framework between the Parties pursuant to which
Supplemental Agreements will from time to time be made for the
connection of Plant and Apparatus to the NGC Transmission System,
the use by Parties of the NGC Transmission System and the payment
of charges to NGC.
IT IS HEREBY AGREED as follows:-
1. Unless the context otherwise requires, words and expressions
defined in the Master Agreement shall bear the same meanings
respectively when used herein.
2. NGC (acting on its own behalf and on behalf of each of the
other Parties) hereby admits the New Party as an additional Party
under the Master Agreement on the terms and conditions hereof.
3. The New Party hereby accepts its admission as a Party and
undertakes with NGC (acting on its own behalf and on behalf of
each of the other Parties) to perform and to be bound by the
terms and conditions of the Master Agreement as a Party as from
the date hereof.
4. For all purposes in connection with the Master Agreement the
New Party shall as from the date hereof be treated as if it has
been a signatory of the Master Agreement, and as if this
Agreement were part of the Master Agreement, and the rights and
obligations of the Party shall be construed accordingly.
5. This Agreement and the Master Agreement shall be read and
construed as one document and references in the Master Agreement
to the Master Agreement (howsoever expressed) should be read and
construed as references to the Master 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
Clause 27 of the Master 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:
Registered Number:
Registered Office:
Address for Notices (if different from Registered Office):
Telex No:
Facsimile No:
Attention:
Bank Details:
The National Grid Company PLC
(for itself and on behalf of each of the Parties
to the Master Agreement).
By:
EXHIBIT 1
DATED 30th March 1990
THE NATIONAL GRID COMPANY PLC
and
1 1 (2)
SUPPLEMENTAL AGREEMENT TYPE 1
(in respect of Connection Sites of Users
which are in existence and Commissioned at the Transfer Date)
CONTENTS
Clause Title
1 Definitions, Interpretation and Construction
2 Being Operational/Connection/Energisation
3 The Connection Site and NGC Assets
4 Connection Charges
5 Use of System Charges
6 Charging Rules
7 Ancillary Services
8 (Clause deleted)
9 Special Automatic Facilities
10 Protection and Control Relay Settings/Fault Clearance Times
11 Safety Rules
12 Other Site Specific Technical Conditions
13 Metering
14 Joint System Incidents
15 Term
16 Emergency Deenergisation
17 Deenergisation and Disconnection
18 Notice to Decommission or Disconnect
19 Disconnection
20 Decommissioning
21 Master Agreement
22 Variations
Appendix A NGC's Assets/Connection Site
Appendix B Connection Charges/Payment
Appendix C Zone/Registered Capacity/Peak Half-Hours/Estimated Demand
Appendix D Use of System Charges/Payment
Appendix E Charging Rules
Appendix F1 Site Specific Technical Conditions - Agreed Ancillary Services
Appendix F2 (Not used)
Appendix F3 Site Specific Technical Conditions - Special Automatic Facilities
Appendix F4 Site Specific Technical Conditions - Protection and Control
Relay Settings/Fault Clearance
Appendix F5 Site Specific Technical Conditions - Load Shedding Frequency
Sensitive Relays
Appendix F6 Site Specific Technical Conditions - Metering
THIS SUPPLEMENTAL AGREEMENT is made the 30th day of March 1990
and becomes effective on the 31st day of March 1990
BETWEEN
( 1 ) THE NATIONAL GRID COMPANY PLC a company registered in
England with number 2366977 whose registered once is at National
Grid House, Sumner Street, London SE1 9JU ("NGC, which expression
shall include its successors and/or permitted assigns); and
(2) [ ] a company registered in [ ] with number [
] whose registered office is at [ ] (the "User", which
expression shall include its successors and/or permitted assigns)
WHEREAS
(A) NGC and the User are parties to a Master Connection and Use
of System Agreement dated [ ] ("Master Agreement").
(B) This Supplemental Agreement is entered into pursuant to the
terms of the Master Agreement and shall be read as being governed
by them.
NOW IT IS HEREBY AGREED as follows:-
1. DEFINITIONS. INTERPRETATION AND CONSTRUCTION
1.1 General
Unless the subject matter or context otherwise requires or is
inconsistent therewith, terms and expressions defined in Schedule
2 to the Master Agreement have the same meanings, interpretations
or constructions in this Supplemental Agreement.
2. BEING OPERATIONAL/CONNECTION/ENERGISATION
2.1 Right to remain connected:
Subject to the other terms and conditions of this Supplemental
Agreement and the Grid Code, the User shall have the right for
the User's Equipment to remain connected to the NGC Transmission
System at the Connection Site for the duration of this
Supplemental Agreement.
2.2 Right to remain Energised and Operational:
Subject to the other provisions of this Agreement and the Grid
Code, the User shall have the right for the User's Equipment at
the Connection Site to be and remain Energised and Operational
for the duration of this Supplemental Agreement.
2.3 Obligation to remain connected
Without prejudice to its rights to make Modifications to the
User's Equipment pursuant to the Master Agreement and subject to
the provisions of Sub-Clause 16.2 and the other provisions of
this Agreement and the Grid Code the User shall keep the User's
Equipment at the Connection Site connected to the NGC
Transmission System until Decommissioning or Disconnection is
permitted pursuant to this Supplemental Agreement.
2.4 Registered Capacity
The User if a Generator shall not operate its Users Equipment
such that any of it exceeds its Registered Capacity save as
expressly permitted or instructed pursuant to the Grid Code or
the Fuel Security Code or as may be necessary or expedient in
accordance with Good Industry Practice.
2.5 Data
Data of a technical or operational nature collected recorded or
otherwise generated pursuant to this Supplemental Agreement shall
be deemed data lodged pursuant to the Grid Code to the extent
that the Grid Code makes provision therefor.
2.6 Subject to the other provisions of this Agreement and the
Grid Code, NGC shall use all reasonable endeavours to maintain
the NGC Assets at the Connection Site in the condition necessary
to render the same fit for the purpose of passing power up to the
Maximum Export Capacity and/or the Connection Site Demand
Capability as appropriate between the User's Equipment and the
NGC Transmission System.
2.7 Subject to the other provisions of this Agreement and the
Grid Code, NGC shall accept into the NGC Transmission System at
the Connection Site power generated by the User up to the Maximum
Export Capacity except to the extent (if any) that NGC is
prevented from doing so by transmission constraints which could
not be avoided by the exercise of Good Industry Practice by NGC.
2.8 Subject to the other provisions of this Agreement and the
Grid Code, NGC shall transport a supply of power to the
Connection Site through the NGC Transmission System up to the
Connection Site Demand Capability except to the extent (if any)
that NGC is prevented from doing so by transmission constraints
or by insufficiency of generation which, in either case, could
not have been avoided by the exercise of Good Industry Practice
by NGC.
2.9 Subject to the provisions of the Grid Code each Party shall
be entitled to plan and execute outages of parts of its System or
Plant or Apparatus at any time and from time to time.
2.10 Provision of Data
The majority of the data required under the Grid Code has been
supplied by the User prior to the Transfer Date. However, in
respect of the following data required under the Planning Code of
the Grid Code it is agreed that the User need only supply it
under the Grid Code within one year of the Transfer Date, unless
NGC requests it in writing before the expiry of that period, in
which case the User from whom the data is requested must supply
it within 6 weeks of receiving that request, except in the case
of the data referred to in PCA 5.3.1(g) which need only be
supplied within 3 months of receiving this request. The data to
which this Sub-Clause applies is that referred to in the
following paragraphs of the Planning Code:-
PCA 2.3
PCA 4.3.7
PCA 4.3.9
PCA 5.2.1
PCA 5.2.2
PCA 5.3.1(g)
NGC shall also be able to request a User in writing at any time
to supply to NGC any data under the Planning Code which it should
have supplied to NGC prior to the Transfer Date, but which it did
not supply, and the User must supply that data upon that request.
3. THE CONNECTION SITE AND NGC ASSETS
The Connection Site and NGC Assets to which this Supplemental
Agreement relates are more particularly described in Appendix A.
4. CONNECTION CHARGES
Subject to the provisions of Clause 6 of this Supplemental
Agreement the User shall with effect from the commencement of
this Supplemental Agreement pay the Connection Charges set out in
Appendix B which are calculated by reference to the NGC Assets
specified in Appendix A in accordance with the provisions of
Appendix B.
5. USE OF SYSTEM CHARGES
Subject to the provisions of Clause 6 of this Supplemental
Agreement the User shall with effect from the commencement of
this Supplemental Agreement pay to NGC the Use of System Charges
set out in Appendix D in accordance with the provisions of
Appendix E.
6. CHARGING RULES
The provisions of the Charging Rules set out in Appendix E to
this Supplemental Agreement shall apply.
7. ANCILLARY SERVICES
The User shall provide the Agreed Ancillary Services set out in
Appendix F1 in accordance with the Grid Code.
8. GRID CODE NON-COMPLIANCE
(Clause deleted)
9. SPECIAL AUTOMATIC FACILITIES
NGC and the User shall operate respectively the NGC Transmission
System and the User System in accordance with the schemes set out
in Appendix F3.
10. PROTECTION AND CONTROL RELAY SETTINGS/FAULT CLEARANCE TIMES
NGC and the User shall record the respective protection and
control relay settings and fault clearance times to be operated
by each of them in documents in the format set out in Appendix F4
and shall operate them accordingly.
11. SAFETY RULES
11.1 Safety Rules:
NGC and the User will each supply to the other a copy of their
Safety Rules current from time to time except where already
supplied under another Supplemental Agreement (save that this
exception shall not apply to site specific Safety Rules) and also
a copy of the Local Safety Instructions applicable at the
Connection Site from time to time except where supplied under
another Supplemental Agreement.
11.2 Decommissioning:
Decommissioning of Plant and/or Apparatus at the Connection Site
will be undertaken in accordance with the procedures of the
Safety Rules of whichever of NGC or the User applied when the
Plant and/or Apparatus concerned was in commission.
12. OTHER SITE SPECIFIC TECHNICAL CONDITIONS
12.1 Initial Obligation:
The User shall ensure that on the Transfer Date the User's
Equipment complies with the site specific technical conditions
set out in Appendix F5.
12.2 The User shall use all reasonable endeavours to ensure
during the period of this Supplemental Agreement that the User's
Equipment shall continue to comply with the site specific
technical conditions set out in Appendix F5.
12.3 If the User or NGC wishes to modify, alter or otherwise
change the site specific technical conditions or the manner of
their operation:
(i) under Appendix F4 it may do so upon obtaining
the agreement of the other Party such agreement not to be
unreasonably withheld.
(ii) under Appendix Fl, F3, F5 or F6 this shall be deemed to be
a Modification for the purposes of the Master Agreement.
12.4 Where on or immediately prior to the Transfer Date the
User's Equipment has any of the following technical attributes or
facilities:
(i) circuit breaker fail protection
(ii) pole slipping protection
(iii) fault disconnection facilities
(iv) automatic switching equipment
(v) control arrangements
(vi) voltage and current signals for system monitoring
(vii) control telephony
(viii) operational metering
the User's Equipment retains such technical attributes or
facilities provided always that if the User wishes to modify
alter or otherwise change the same or their operation it may do
so by following the procedures relating to a Modification in
accordance with the Master Agreement.
13. METERING
The provisions of Appendix F6 shall have effect.
14. JOINT SYSTEM INCIDENTS
Each Party confirms to the other that its Senior Management
Representatives whose names have been nominated and notified to
the other pursuant to OC9 are fully authorised to make binding
decisions on its behalf for the purposes of OC9.
15. TERM
Subject to the provisions for earlier termination set out herein
and in Clause 17 of the Master Agreement, this Supplemental
Agreement shall continue until the User's Equipment is
Disconnected from the NGC Transmission System at the Connection
Site in accordance with Clause 17 or 19 hereof.
16. EMERGENCY DEENERGISATION
16.1 Emergency Deenergisation by NGC:
If, in the reasonable opinion of NGC, the condition or manner of
operation of the NGC Transmission System or the User's System
poses an immediate threat of injury or material damage to any
person or to the Total System or to any User's System or to the
NGC Transmission System NGC shall have the right to Deenergise
the User's Equipment if it is necessary or expedient to do so to
avoid the occurrence of such injury or damage.
16.2 Emergency Deenergisation by a User
If, in the reasonable opinion of the User, the condition or
manner of operation of the NGC Transmission System, the Total
System or any User's System, poses an immediate threat of injury
or material damage to any person or to the User's System, the
User shall have the right to Deenergise the User's Equipment if
it is necessary or expedient to do so to avoid the occurrence of
such injury or damage.
16.3 Reenergisation:
NGC or, as the case may be, the User shall Reenergise the User's
Equipment at the Connection Site as quickly as practicable after
the circumstances leading to any Deenergisation under this Clause
16 have ceased to exist.
17. DEENERGISATION AND DISCONNECTION
17.1 Breach by the User
If the User shall be in breach of any of the provisions of this
Supplemental Agreement or of the provisions of the Master
Agreement enforcing the provisions of the Grid Code (but subject
always to Sub-Clauses 9.3 and 9.4 of the Master Agreement) and
such breach causes or can reasonably be expected to cause a
material adverse effect on the business or condition of NGC or
other Users or the NGC Transmission System or Users Systems then
NGC may:
(i) where the breach is capable of remedy, give written notice
to the User specifying in reasonable detail the nature of the
breach and requiring the User to remedy the breach within 28 days
after receipt of such notice or within any longer period agreed
between NGC and the User, the agreement of NGC not to be
unreasonably withheld or delayed; or
(ii) where the breach is incapable of remedy, give written
notice to the User specifying in reasonable detail the nature of
the breach and the reasons why the breach is incapable of remedy
and requiring the User within 5 Business Days after receipt of
such notice to undertake to NGC not to repeat the breach.
17.2 Grid Code Procedures
Whenever NGC serves a notice on the User pursuant to Sub-Clause
17.1, NGC and the User shall discuss in good faith and without
delay the nature of the breach and each shall use all appropriate
procedures available to it under the Grid Code (including testing
rights and the procedures set out in OC5 (Testing and
Monitoring)) in an attempt to establish as quickly as reasonably
practicable a mutually acceptable way of ensuring future
compliance by the User with the relevant provision of the Grid
Code.
17.3 De-Energisation
17.3.1 If:-
(a) the User fails to comply with the terms of any valid notice
served on it by NGC in accordance with Sub-Clause 17.1(i) or is
in breach of any undertaking given in accordance with Sub-Clause
17.1(ii) and such breach causes or can be reasonably expected to
cause a material adverse effect on the business or condition of
NGC or other Users or the NGC Transmission System or User
Systems; or
(b) five Business Days have elapsed since the date of any valid
notice served on the User in accordance with Sub-Clause 17.2
(ii) and no undertaking is given by the User in accordance with
Sub-Clause 17.2(ii); NGC may, provided NGC has first complied
with OC5 Monitoring and Testing if appropriate De-Energise the
User's Equipment upon the expiry of at least 48 hours prior
written notice to the User, provided that at the time of expiry
of such notice the breach concerned remains unremedied and that
neither Party has referred the matter to the Dispute Resolution
Procedure set out in Clause 27 of the Master Agreement. In such
event NGC may De-Energise forthwith following completion of the
Dispute Resolution Procedure and final determination of the
dispute in NGC's favour.
17.3.2 If the User fails to comply with the Grid Code and the
Director makes a final order or a confirmed provisional order as
set out in Sections 25 and 26 of the Act against the User in
respect of such non-compliance which order the User breaches NGC
may De-energise the Users Equipment upon the expiry of at least
48 hours prior written notice to the User provided that at the
time of expiry of the notice the User continues to fail to comply
with the order.
17.4 NGC Transmission Licence
If a breach of the nature referred to in Sub-Clause 17.1
continues to the extent that it places or seriously threatens to
place in the immediate future NGC in breach of the NGC
Transmission Licence, NGC may De-Energise the User's Equipment
upon the expiry of at least 12 hours prior written notice to the
User, provided that at the time of expiry of such notice the
breach concerned remains unremedied.
17.5 Re-Energisation Disputes
If, following any De-Energisation pursuant to this Clause 17, the
User applies to NGC for the User's Equipment to be Re-Energised
and is refused or is offered terms which the User does not
accept, this shall be recognised as a dispute over the terms for
connection and use of system which the User may refer to the
Director for determination under the NGC Transmission Licence. If
the User accepts any terms offered by NGC or settled by the
Director pursuant to any such reference, NGC shall Re-Energise
the User's Equipment forthwith after any request from the User
for NGC to do so.
17.6 Event of Default
If the breach which led to any De-Energisation pursuant to this
Clause 17 remains unremedied at the expiry of at least 6 months
after the date of such De-Energisation, NGC may declare by notice
in writing to the User that such breach has become an event of
default provided that-
(a) all disputes arising out of the subject-matter of this
Clause 17 which are referred to the Dispute Resolution Procedure
have then been finally determined in favour of NGC; and
(b) any reference to the Director pursuant to sub-clause 17.5
has then been finally determined in favour of NGC or any terms
settled by the Director pursuant to such application have not
been accepted by the User.
17.7 Disconnection
Once NGC has given a valid notice of an event of default pursuant
to Sub-Clause 17.6 NGC may give notice of termination to that
User whereupon this Supplemental Agreement shall terminate and:
(i) NGC shall Disconnect all the User's Equipment at the
Connection Site and NGC and the User concerned shall by
arrangement between them remove any of the Users Equipment and
NGC Assets on the other Party's land within 6 months of the date
of termination or such longer period as may be agreed between the
Parties; and
(ii) that User shall be obliged to pay to NGC forthwith the
Termination Amounts applicable to the Connection Site.
18. NOTICE TO DECOMMISSION OR DISCONNECT
Without prejudice to Sub-Clause 16.2, the User shall give to NGC
not less than 6 months written notice of any intention of the
User either to Decommission the User's Equipment or to Disconnect
the User's Equipment.
19. DISCONNECTION
If notice to Disconnect is given by the User under Clause 18 the
User may upon expiry of the period specified in such notice and
not before Disconnect the User's Equipment. At the expiry of
such period this Supplemental Agreement shall terminate. The User
shall pay to NGC all Termination Amounts applicable to the
Connection Site within 28 days after termination of this
Agreement. Within 6 months of the date of such termination or
such longer period as may be agreed between the Parties the
Parties shall by arrangement with each other remove any of the
User's Equipment and NGC Assets on the other Party's land.
20. DECOMMISSIONING
If notice to Decommission is given by the User under Clause 18
the User may upon expiry of the period specified in such notice
and not before, Decommission the User's Equipment. This
Supplemental Agreement shall not terminate and:-
(i) until the end of the Financial Year in which the
Decommissioning takes place all Connection Charges and Use of
System Charges payable by the User under this Supplemental
Agreement shall continue to be payable in full; and
(ii) following the end of the Financial Year in which the
Decommissioning takes place the Use of System Charges payable by
the User under this Supplemental Agreement shall no longer be
payable by the User but the Connection Charges so payable shall
continue to be payable
If and when the User wishes to recommission it shall give NGC not
less than 3 months written notice unless a shorter period is
agreed between the User and NGC.
21. MASTER AGREEMENT
The provisions of Clauses 18 to 24 and 26 to 30 inclusive of the
Master Agreement shall apply to this Supplemental Agreement as if
set out in full herein.
22. VARIATIONS
No variation to this Supplemental Agreement shall be effective
unless made in writing and signed by or on behalf of both NGC and
the User. NGC and the User shall effect any amendment required to
be made to this Supplemental Agreement by the Director as a
result of a change in the Transmission Licence or an order or
directions made pursuant to the Act or a Licence or as a result
of settling any of the terms hereof and the User hereby
authorises and instructs NGC to make any such amendment on its
behalf and undertakes not to withdraw, qualify or revoke such
authority or instruction at any time.
IN WITNESS WHEREOF the hands of the duly authorised
representatives of the parties hereto at the date first above
written
THE NATIONAL GRID COMPANY PLC )
By )
[the USER] )
By )
APPENDIX A
NGC'S ASSETS/CONNECTION SITE
COMPANY :
CONNECTION SITE:
TYPE:
NGC ASSETS:-
QUANTITY VOLTAGE DESCRIPTION AGE (Years)
SCHEMATIC DIAGRAM:
AREA:
APPENDIX B
CONNECTION CHARGES/PAYMENT
1) CONNECTION CHARGES:
COMPANY:
CONNECTION:
SITE
TYPE:
CHARGES: Poundsa for the period from 1st April 1990 to 31st March 1991
and thereafter as determined in accordance with the Charging
Rules.
2) PAYMENT:
The charges shall be payable in 12 equal monthly instalments as
specified in Clause 14 of the Master Agreement.
APPENDIX C
ZONE/REGISTERED CAPACITY/PEAK HALF-HOURS/ESTIMATED DEMAND
COMPANY:
GRID SUPPLY POINT/
CONNECTION SITE:
ELECTRICAL LOCATION OF ENERGY METERING
EQUIPMENT MEASURING STATION DEMAND:
ZONE :
a. GENERATION:
SET TYPE/FUEL REGISTERED
CAPACITY MW
b. In the Financial Year 1st April 1990 to 31st March 1991 NGC's
Demand related Use of System charges shall be calculated by
reference to the Demand attributable to the User at the Grid
Supply Point identified above in relation to the 3 half-hours of
peak Demand (Active Power) occurring on the 3 days of peak Demand
(Active Power) which occur in the period from 1st November 1990
to 28th February 1991 and are at least 10 days apart.
c. In the Financial Year 1st April 1990 to 31st March 1991 NGC's
generation related Use of System Charges shall be calculated by
reference to the highest Registered Capacity during such
Financial Year and the Energy produced.
d. ESTIMATED DEMAND for the period between I April 1990 and 31st
March 1991 and thereafter as notified in accordance with the
Charging Rules.
_______________ MW
APPENDIX D
USE OF SYSTEM CHARGES/PAYMENT
COMPANY :
LOCATION :
1 ) TYPE OF CHARGE: SYSTEM SERVICE
Demand related
Pounds in respect of the period from 1st April 1990 to 31st March
1991 payable in 12 equal monthly instalments subject to
adjustment in accordance with the Charging Rules.
Note: based upon a charge of Pound per kW and kW of Estimated
Demand as set out in Appendix C.
2) TYPE OF CHARGE: INFRASTRUCTURE
A. Demand related
Pound in respect of the period from 1st April 1990 to 31st
March 1991 payable in 12 equal monthly instalments subject to
adjustment in accordance with the Charging Rules.
Note: based upon a charge of Pound per kW and kW of Estimated
Demand as set out in Appendix C.
B. Capacity Related
Pound......in respect of the period from 1st April 1990 to 31st March
1991 payable in 12 equal monthly instalments subject to
adjustment in accordance with the Charging Rules based upon a
charge of Pound.... per KW Registered Capacity and .... KW being the
Registered Capacity as set out in Appendix C.
C. Energy Related
Pound......per Kwh in respect of each Kwh of Energy entering the
Total System in the period from 31st March 1990 to 31st March
1991 payable as described in Clause 14 of the Master Agreement.
Payment shall be made in accordance with Clause 14 of the Master
Agreement.
APPENDIX E
CHARGING RULES
1. Use of System Charges - General and Data Requirements
1.1 NGC's Demand related Use of System Charges are calculated by
reference to Demand (Active Power) attributable to each Grid
Supply Point excluding that Demand (Active Power) met by embedded
Generating Units which is to be paid for otherwise than pursuant
to the Pooling and Settlement Agreement.
1.2 Data Requirements
1.2.1 On or before 31st December in each Financial Year the
User shall supply NGC with such data as NGC may from time to time
reasonably request to enable NGC to calculate the Connection
Charges and/or Use of System Charges due from the User to NGC in
respect of the Connection Site including the data specified in
Appendix C.
1.2.2 On or before 31st December in each Financial Year,
(i) Users who are Public Electricity Suppliers shall supply to
NGC a forecast for the following Financial Year of the
following:
(a) the Natural Demand attributable to each Grid Supply Point
equal to the average of the forecasts of Natural Demand under
Annual Average Cold Spell (ACS) Conditions attributable to such
Grid Supply Point for each of a number of peak half-hours as
notified by NGC to the User under paragraph 2.1 of this Appendix
E; and
(b) the PES Supply Business Demand attributable to each Grid
Supply Point equal to the average of the forecasts of PES Supply
Business Demand under Annual Average Cold Spell (ACS) Conditions
attributable to such Grid Supply Point for each of a number of
peak half-hours as notified by NGC
to the User under paragraph 2.1 of this Appendix E.
(ii) Users who are Second Tier Suppliers shall supply to NGC a
forecast for the following Financial Year of the STS Demand under
Annual Average Cold Spell (ACS) Conditions attributable to each
Grid Supply Point equal to the average of the forecasts of STS
Demand attributable to such Grid Supply Point for each of a
number of peak half-hours as notified by NGC to the User under
paragraph 2.1 of this Appendix E.
(iii) Users who are Generators shall supply to NGC a forecast
for the following Financial Year of the Station Demand (Active
Power) under Annual Average Cold Spell (ACS) Conditions
attributable to each Grid Supply Point equal to the average of
the forecasts of such Station Demand (Active Power) attributable
to such Grid Supply Point for each of a number of peak half-hours
as notified by NGC to the User under paragraph 2.1 of this
Appendix E.
1.3 Annual Adjustment
1.3.1 NGC's Demand related Use of System Charges shall be
calculated on the basis of actual Demand (Active Power)
attributable to each User at each Grid Supply Point for each of a
number of peak half hours as notified by NGC to the User under
paragraph 2.1 of this Appendix E.
1.3.2 On or before 1st March each Financial Year NGC shall: -
(i) determine from meter readings of Energy Metering Equipment
the actual Demand (Active Power) attributable to each User at
each Grid Supply Point for each of the Number of Peak Half Hours
applicable during such Financial Year; and
(ii) shall compare the User's highest Registered Capacity during
such year with the
Registered Capacity used when estimating the charges due during
such Financial
Year;
1.3.3 NGC shall then promptly calculate on the basis of the
actual position determined in accordance with paragraph 1.3.2 the
amount of Demand related or Capacity related Use of System
Charges (as the case may be) that would have been payable by the
User under this Supplemental Agreement during each month during
that Financial Year if they had been calculated on the basis of
that of the actual position (the "Actual Amount"). NGC shall then
compare the Actual Amount with the amount of Demand related or
Capacity related Use of System Charges (as the case may be) paid
during each month during that Financial Year by the User under
this Supplemental Agreement (the "Notional Amount).
1.3.4 NGC shall then prepare a reconciliation statement and send
it to the User. Such statement shall specify the Actual Amount
and the Notional Amount for each month during the relevant
Financial Year and, in reasonable detail, the information from
which such amounts were derived and the way in which they were
calculated.
1.3.5 Together with the reconciliation statement NGC shall send
the User an invoice in relation to any sums shown by the
reconciliation statement to be due to NGC and interest thereon
calculated pursuant to paragraph 1.3.6 below. Forthwith following
receipt of any reconciliation statement the User shall send to
NGC an invoice in relation to any sum shown by the reconciliation
statement to be due to the User and interest thereon calculated
pursuant to paragraph 1.3.6 below. Such invoices shall be payable
on or before 31st March in such Financial Year.
1.3.6 In respect of each month during that Financial Year:-
(a) the User shall, following receipt of an appropriate invoice,
pay to NGC an amount equal to the amount (if any) by which the
Actual Amount exceeds the Notional Amount; and
(b) NGC shall, following receipt of an appropriate invoice,
repay to the User an amount equal to the amount (if any) by which
the Notional Amount exceeds the Actual Amount.
Interest shall be payable by the paying Party to the other on
such amounts from the Payment Date applicable to the month
concerned until the date of actual payment of such amounts (which
shall not be later than 31st March in such Financial Year). Such
interest shall be calculated on a daily basis at the rate equal
to the base rate of Barclays Bank PLC for the time being and from
time to time during such period.
2. Revision of Charges
2.1 To the extent permitted by the Transmission Licence NGC may
revise its Connection Charges and Use of System Charges or the
basis of their calculation including issuing revisions to
Appendices B, C and D hereto. On or before 31st October in each
Financial Year NGC shall notify the User of the intended basis of
calculation to be used by NGC in the following Financial Year
(including the number and timing of peak half-hours if any to be
used when calculating Demand related infrastructure charges) and
shall consult with the User concerning the same. On or before
30th November in each Financial Year NGC shall confirm to the
User the basis of calculation to be used in the following
Financial Year. NGC shall give the User not less than 2 months
prior written notice of any revised charges, including revisions
to Appendices B, C and D hereto, which notice shall specify the
date upon which such revisions become effective (which may be at
any time). The User shall pay any such revised charges and
Appendix B, C and/or D as appropriate shall be amended
automatically (and a copy sent to the User) to reflect any
changes to such Appendices with effect from the date specified in
such notice.
2.2 The User acknowledges that NGC will establish a new asset
register during the course of the Financial Year ending 31st
March 1991. As a result, NGC shall have the right to vary the
asset allocation reflected in Appendix A upon giving not less
than 2 months prior written notice to the User provided that:-
(a) NGC has first consulted the User in advance in good faith,
including informing the User of the nature of the reallocation
insofar as it materially affects the Connection Site and
indicating the likely implications for the User of such
reallocation; and
(b) the principles of asset allocation are those set out in the
statements required by Condition 10(2)D of the Transmission
Licence, the form of which has been approved by the Director.
Such asset reallocation shall be effective from 1st April 1991
and the provisions of Appendices A and B shall be amended
automatically (and a copy sent to the User) to reflect such
reallocation with effect from such date.
2.3 Subject to the provisions of paragraph 3.2 below if in the
reasonable opinion of NGC any development, replacement,
renovation, alteration, construction or other work to the NGC
Transmission System means that NGC needs to vary the Connection
Charges payable by the User in relation to the Connection Site
NGC shall have the right to vary such charges accordingly upon
giving to the User not less than 2 months prior written notice.
Such notice shall be deemed to be a revised Connection Offer and
before any such variation become effective the provisions of
Sub-Clauses 11.2 and 11.4 shall apply mutatis mutandis. Following
any such variation the provisions of Appendices A and B shall be
amended automatically (and a copy sent to the User) to reflect
such variation with effect from the date such variation comes
into effect.
3. RepIacement of NGC Assets
3.1 Appendix A specifies the age of each of the NGC Assets at
the Connection Site at the date of this Supplemental Agreement.
NGC Connection Charges and Use of System Charges are calculated
on the assumption that NGC Assets will not require replacement
until the expiry of the Replacement Period- applicable to each
NGC Asset concerned. Such Replacement Periods have been agreed
between NGC and the User. For the avoidance of doubt, they have
been prepared for accounting purposes and carry no implication
that they represent the actual useful lives of such assets.
3.2 Where in NGCs reasonable opinion an NGC Asset requires
replacement before the expiry of its Replacement Period NGC
shall, with the prior written approval of the User (except where
in NGC's reasonable opinion such replacement is necessary, in
which case such approval shall not be required but in such case
the User shall have the right to give notice to Disconnect) have
the right to replace the NGC Asset at no additional cost to the
User until expiry of its original Replacement Period. Upon the
expiry of such original Replacement Period NGC shall be entitled
to vary the Connection Charges in respect of the replaced NGC
Asset so that they are calculated on the basis of the then
current Net Asset Value of such NGC Assets. NGC shall give the
User not less than 2 months prior written notice of such varied
charges which notice shall specify the date upon which such
increase becomes effective. The User shall pay such varied
charges and Appendices A and B shall be amended automatically
(and a copy sent to the User) to reflect such revised charges
with effect from the date specified in such notice.
3.3 Upon the expiry of the Replacement Period of any NGC Asset,
NGC shall replace such NGC Asset if requested to do so by the
User or if in NGC's reasonable opinion it is necessary to do so
to enable NGC to comply with its Licence obligations. Unless so
replaced, NGC shall keep the NGC Asset in service. In the event
that it is left in service the User shall pay Connection Charges
in respect of such NGC Asset calculated by reference to Net Asset
Value derived from a revaluation of the asset by NGC (which in
the reasonable opinion of NGC, taking into account the
depreciation already paid over the lifetime of that asset,
reflects the then expected life expectancy of the asset plus
capitalised renovation or refurbishment costs). Upon any such
replacement NGC shall be entitled to vary the Connection Charges
in respect of the replaced NGC Asset so that they are calculated
on the basis of the then current Net Asset Value of such NGC
Asset. NGC shall give the User not less than 2 months prior
written notice of such varied charges which notice shall specify
the date upon which such increase becomes effective. The User
shall pay such varied charges and Appendices B and D shall be
amended automatically (and a copy sent to the User) to reflect
such revised charges with effect from the date notified to the
User by NGC.
4. Termination Amounts
4.1 Until the end of the Financial Year in which the termination
occurs the User shall pay to NGC the Connection Charges and Use
of System Charges for which the User is liable in full. Where the
User has a Connection Site the User shall at the end of such
Financial Year pay to NGC a sum equal to the following:-
(i) the then current Net Asset Value of the NGC Assets at the
Connection Site in question; and
(ii) a sum equal to the reasonable cost of removing such NGC
Assets.
4.2 Where a Termination Amount is paid to NGC under this
Agreement and subsequently NGC uses the NGC Assets at the same or
another Connection Site and renders and receives a Connection
Charge therefor NGC shall pay to the User the Net Asset Value
component of the Termination Amount less reasonable maintenance
and storage costs. NGC shall use its reasonable endeavours to re-
use such NGC Assets where it is economic to do so. Upon request
and at the cost of the User, NGC shall issue a certificate no
more frequently than once each calendar year indicating whether
or not such NGC Assets have or have not been so re-used.
5. Variation of Charges by NGC during the Financial Year
If NGC is notified of a reduced Demand forecast by a PES or STS
from the forecast submitted under paragraph 1.2 of this Appendix
and is also notified of a corresponding increase in such a Demand
forecast by another PES or STS NGC shall vary the Use of System
charges due from the User notifying the reduction such that the
charges payable reflect the revised forecast within 30 days of
receipt of the 2 notices. NGC shall vary or commence charging as
the case may be the Use of System charges due from the User
notifying the increase with effect from the date that the
increase becomes effective. Save where NGC receives 2
corresponding notifications there shall unless NGC decides
otherwise be no variation of charges downwards during the
Financial Year to cover this eventuality and reconciliation shall
be effected pursuant to paragraph 1.3 of this Appendix.
6. Deductions
In respect of any NGC Engineering Charges which have been paid by
the User in connection with a Connection Application or under
Sub-Clause 2.3 of the Supplemental Agreement Type 2 NGC shall
reduce the amount of Connection Charges payable by the User in
relation to the respective Connection Site on 1st April in each
of the first 3 years of the payment of such Connection Charges by
an amount equal on each occasion to one third of such NGC
Engineering Charges.
APPENDIX F1
SITE SPECIFIC TECHNICAL CONDITIONS
Agreed Ancillarv Services
[Black Start Capability
Gas Turbine Unit Fast Start
Synchronous Compensation
Pumped Storage Unit Spinning-in-Air
Pumped Storage
Pumped Storage Plant Fast Start
Demand Reduction
Adjustment to Pumped Storage Unit Pumping Programme
Hot Standby]
APPENDIX F2
(NOT USED)
APPENDIX F3
SITE SPECIFIC TECHNICAL CONDITIONS
Special Automatic Facilities
(a) NGC Transmission System to Generating Unit Intertripping
schemes.
(b) NGC Transmission System to Demand Intertripping schemes.
(c) NGC Transmission System to Directly Connected Customers
Intertripping Schemes
(d) Auto open/close schemes.
(e) System splitting or islanding schemes which impact on the
User's system or plant.
APPENDIX F4
SITE SPECIFIC TECHNICAL CONDITIONS
Protection and Control Relay Settings/Fault Clearance Times
Pro-formas attached
APPENDIX F5
SITE SPECIFIC TECHNICAL CONDITIONS
Load Shedding Frequency Sensitive Relays
This only applies to Suppliers. The manner in which Users Demand
subject to low frequency disconnection is to be split into
discrete MW Groups is set down in OC6 and is to be achieved for
Winter 1990/91.
The settings and MW blocks applicable to Winter 1989/90 were as
set down below. The transition from the 1989/90 settings to the
1990/91 settings is to be coordinated through NGC to ensure that
a viable overall scheme exists throughout the period.
APPENDIX F6
SITE SPECIFIC TECHNICAL CONDITIONS
Metering
Operator
Where the Connection Site is a Grid Supply Point, and the User is
or will be Registrant in relation to the Energy Metering
Equipment required by the Pooling and Settlement Agreement at the
Grid Supply Point and/or at the bulk supply point(s) which are
related to that Grid Supply Point, NGC shall install and be the
Operator of all such Energy Metering Equipment from the Transfer
Date until the FMS Date and thereafter:
1.1.1 NGC may resign as Operator of such Energy Metering
Equipment on giving no less than 12 months' notice in writing;
and
1.1.2 the User may remove NGC as Operator upon giving no less
than 12 months' notice in writing.
Provided that where the User agrees to become owner of any such
Energy Metering Equipment NGC may resign as Operator upon such
transfer of ownership and shall agree such terms as shall be
reasonably necessary to enable the User to perform its
obligations as Operator of such Energy Metering Equipment.
1.2 Charges
NGC shall recover its charges for acting as Operator of any
Energy Metering System which is an NGC Asset charged for under
this Supplemental Agreement as part of such charges. Where NGC
acts as Operator of any other Energy Metering System owned by NGC
for which the User is Registrant NGC shall charge and the User
shall pay such amount which is reasonable in all the
circumstances.
1.3 Interference
The User shall ensure that its employees, agents and invitees
will not interfere with any Energy Metering Equipment in respect
of which NGC is Operator or the connections to such Energy
Metering Equipment, without the prior written consent of NGC
(except to the extent that emergency action has to be taken to
protect the health and safety of persons or to prevent serious
damage to property proximate to the Energy Metering Equipment or
to the extent that such action is authorised under the Master
Agreement or any other agreement between NGC and the User).
1.4 Pulse data
The User shall have the right to collect and record pulses from
the meters comprised in the Energy Metering System(s) at the
Connection Site. NGC shall give the User access in accordance
with the Interface Agreement to collect and record such pulses
and to install and maintain such lines and equipment as maybe
reasonably necessary therefor.
EXHIBIT 2
DATED 19
THE NATIONAL GRID COMPANY PLC (1)
and
[ ] (2)
SUPPLEMENTAL AGREEMENT TYPE 2
(in respect of New Connection Sites of Users
which have not been Commissioned at the
Transfer Date)
CONTENTS
Clause Title
1 Definitions, Interpretation, Construction
2 Carrying out of the Works
3 Delays
4 Liquidated Damages
5 Approval to Connect/Energise/Become Operational
6 Independent Engineer
7 Connection/Energisation/Becoming Operational
8 The Connection Site and NGC Assets
9 Connection Charges
10 Use of System Charges
11 Charging Rules
12 Ancillary Services
13 (Clause deleted)
14 Special Automatic Facilities
15 Protection and Control Relay Settings
16 Safety Rules
17 Other Site Specific Technical Conditions
18 Metering
19 Joint Systems Incidents
20 Term
21 Emergency Deenergisation
22 Deenergisation and Disconnection
23 Notice to Decommission or Disconnect
24 Disconnection
25 Decommissioning
26 Master Agreement
27 Variations
Appendix A NGC Assets/Connection Site
Appendix B Connection Charges/Payment
Appendix C Zone/Registered Capacity/Peak Half-Hours/Estimated Demand
Appendix D Use of System Charges/Payment
Appendix E Charging Rules
Appendix F1 Site Specific Technical Conditions - Agreed Ancillary Services
Appendix F2 (not used)
Appendix F3 Site Specific Technical Conditions - Special Automatic Facility
Appendix F4 Site Specific Technical Conditions - Protection and Control Relay
Settings/Fault Clearance
Appendix F5 Site Specific Technical Conditions - Other Technical Conditions
Appendix F6 Site Specific Technical Conditions - Metering
Appendix G NGC Asset Works
Appendix H NGC Reinforcement Works
Appendix I Users Works
Appendix J Construction Programme
Appendix K Liquidated Damages
Appendix L Independent Engineer
THIS SUPPLEMENTAL AGREEMENT is made the day of
19 BETWEEN
(1) THE NATIONAL GRID COMPANY PLC a company registered in
England with number 2366977 whose registered office is at
National Grid House, Sumner Street, London SE1 9JU ("NGC",
which expression shall include its successors and/or
permitted assigns); and
(2) [ ] a company registered in [ ]
with number [ ] whose registered office is at [
] (the "User", which expression shall include its successors
and/or permitted assigns)
WHEREAS
(A) [By an Accession Agreement dated [ ] The User entered
into the Master Connection and Use of System Agreement dated
[ ] ("Master Agreement").
(B) This Supplemental Agreement is entered into pursuant to the
terms of the Master Agreement and shall be read as being
governed by them.
1. DEFINITIONS, INTERPRETATION AND CONSTRUCTION
1.1 General
Unless the subject matter or context otherwise requires or is
inconsistent therewith terms and expressions defined in Schedule
2 to the Master Agreement have the same meanings, interpretations
or constructions in this Supplemental Agreement and the following
words and expressions shall have the meanings shown:
"Charging Date" the date which the Connection Site is first
Commissioned and is available for use by the User.
"Commissioning Programme Commencement Date" the date specified in
the Construction Programme for commencement of the Commissioning
Programme or any substituted date fixed under the terms of the
relevant Supplemental Agreement.
"Commissioning Programme" the programme to be determined pursuant
to Sub-Clause 2.9 of this Supplemental Agreement;
"Completion Date" the date calculated by adding the period
specified in the Commissioning Programme for the execution of the
Commissioning Programme to the Commissioning Programme
Commencement Date or any substituted date fixed under this
Supplemental Agreement.
"Connected Planning Data" data required pursuant to the Planning
Code which replaces data containing estimated values assumed for
planning purposes by validated actual values and updated
estimates for the future and by updated forecasts for forecast
data items.
"Construction Programme" the agreed programme for the Works to be
carried out by NGC and the User set out in detail in Appendix J
to this Supplemental Agreement including the supply by one to the
other of data during the period of the Works.
"Independent Engineer" the engineer specified in Appendix L to
this Supplemental Agreement or such other engineer as may from
time to time be agreed between the Parties.
"Liquidated Damages" either:
(i) where payment is to be made to NGC, a sum equivalent to
NGC's Connection Charges and applicable Use of System Charges
that would otherwise have been payable on account of the relevant
period; or
(ii) where payment is to be made to the user the sum specified on
or calculated pursuant to Appendix K to this Supplemental
Agreement.
"NGC Asset Works" the works necessary for construction and
installation of the NGC Assets at the Connection Site specified
in Appendix G to this Supplemental Agreement.
"NGC Works" the NGC Asset Works and the NGC Reinforcement Works.
"NGC Reinforcement Works" means those works other than the NGC
Asset Works which in the reasonable opinion of NGC are necessary
to extend or reinforce the NGC Transmission System in relation to
and prior to the connection of the User's Equipment at a New
Connection Site and which are specified in Appendix H to this
Supplemental Agreement.
"Practical Completion Date" the date upon which the Connection
Site is Commissioned.
"User's Works" those works necessary for installation of the
User's Equipment which are specified in Appendix I to this
Supplemental Agreement.
"Works" the NGC Asset Works, the User's Works and the NGC
Reinforcement Works.
2. CARRYING OUT OF THE WORKS
2.1 Forthwith following the date of this Agreement NGC and the
User shall agree the Safety Rules and Local Safety
Instructions to apply during the Construction Programme and
Commissioning Programme.
2.2 Forthwith following the date of this Agreement NGC shall use
its best endeavours to obtain in relation to the NGC Asset
Works and the NGC Reinforcement Works, and the User shall
use its best endeavours to obtain in relation to the User's
Works, all such planning and other statutory consents and
all wayleaves, easements, rights over or interests in land
or any other consent or permission of any kind as shall be
necessary to enable the parties to carry out the Works.
Each shall give advice and assistance to the other to the
extent reasonably required by the other in the furtherance
of these obligations. Further each Party shall, so far as
it is legally able to do so, grant to the other all such
wayleaves, easements, rights over or interests (but not
estates) in land or any other consents reasonably required
by the other in order to be enable the Words to be completed
and to enable that other to carry out its obligations to the
other under this Supplemental Agreement and in all cases
subject to such terms and conditions as are reasonable.
2.3 The User shall pay to NGC within 28 days of the date of its
invoice therefor all NGC's Engineering Charges and proper
and reasonable out-of-pocket ancillary expenses in seeking
the planning and other statutory consents and all wayleaves,
easements, rights over or interests in land or other
consents or permissions the subject of Sub-Clause 2.2 (which
process the User acknowledges may include planning inquiries
or appeals). NGC shall keep the User informed of the level
of such charges and expenses being incurred which shall not
exceed [ ] pounds without the User's consent.
2.4 Prior to commencement of the NGC Asset Works and NGC
Reinforcement Works the User shall have the right to
terminate this Agreement upon giving 7 days notice in
writing to NGC in which event NGC shall return the unused
balance (if any) of any NGC Engineering Charges advanced by
the User to NGC in relation to the Connection Site.
2.5 Both Parties shall be entitled to sub contract the carrying
out of their respective parts of the Works. The User or any
contractor on its behalf shall be responsible for commencing
and for carrying out the User's Works (to such stage of
completion as shall render them capable of being
Commissioned) in accordance with the Construction Programme
by the Commissioning Programme Commencement Date and the NGC
or any contractor on its behalf shall be responsible for
commencing and carrying out the NGC Asset Works and the NGC
Reinforcement Works (to such stage of completion as shall
render them capable of being Commissioned) in accordance
with the Construction Programme by the Commissioning
Programme Commencement Date.
2.6 If at any time during the period prior to the Practical
Completion Date a Party (in this Sub-Clause, the "Requesting
Party") wishes to make any addition to or omission from any
of the Requesting Party's Works being undertaken (which
addition or omission is such as may reasonably be expected
materially to affect the other Party's ability to perform
its obligations under this Supplemental Agreement) or to
vary the Construction Programme or the Commissioning
Programme for whatever reasons (including by reason of
inaccurate data furnished by the other Party (in this Sub-
Clause, the "Requested Party")) the Requesting Party shall
give written notice to the Requested Party requesting such
change or variation which specifies the precise alteration
or variation which it is proposing, including an estimate of
any delay necessary to enable the Parties to carry out the
varied Work. As quickly as practicable and in any event
within 14 days of receipt of such notice by the Requested
Party it shall by written notice to the Requesting Party
specify in the form of an offer:-
(i) any corresponding changes or variations the Requested
Party considers in its reasonable opinion are necessary to
the Requested Party's Works; and
(ii) corresponding changes or variations the Requested Party
considers in its reasonable opinion are necessary to the
Construction Programme including to the Commissioning
Programme Commencement Date and Completion Date;
(iii) appropriate and/or alternative rights to those
referred to in Sub-Clause 2.2; and
(iv) corresponding variations to the other terms of this
Supplemental Agreement which the Requested Party considers
in its reasonable opinion are necessary.
The Requesting Party shall have 28 days from the date of
receipt of the Requested Party's offer under this Sub-Clause
2.6 to give written notice to the Requested Party accepting
the Requested Party's offer. The Requested Party shall not
unreasonably withhold or delay agreement to any amendments
to such offer proposed by the Requesting Party. If the
Requested Party's offer (including any amended offer) under
this Sub-Clause 2.6 is so accepted by the Requesting Party
the Works, the Construction Programme, the Commissioning
Programme, the Commencement Date, the Completion Date and
this Supplemental Agreement shall be deemed automatically
amended with effect from the date of receipt of such
acceptance by the Requested Party so as to incorporate the
terms of the Requested Party's offer (including any changes
proposed by the Requesting Party which have been accepted by
the Requested Party) under this Sub-Clause 2.6. If the
Parties are not able to agree on the terms of the Requested
Party's offer within such 14 day period either Party may
refer the matter to the Independent Engineer pursuant to
Clause 7 hereof. The Parties shall diligently proceed with
the Works and Construction Programme in accordance with
their terms as amended or varied from time to time, to the
extent reasonable and practicable having regard to the
nature of any such amendment or variation.
2.7 The Parties shall continuously liaise throughout the
Construction Programme and Commissioning Programme and each
shall provide to the other all information necessary to
assist the other in performance of that other's part of the
Works, and shall use all reasonable endeavours to co-
ordinate and integrate their respective part of the Works.
There shall be on-site meetings between representatives of
the parties not less than once every calendar month. Each
Party shall deliver to the other Party a written report of
progress during each calendar quarter within 7 days of the
end of each quarter.
2.8 During the period of and at the times and otherwise as
provided in the Construction Programme and the Commissioning
Programme NGC and the User will allow the other, its
employees, agents, suppliers, contractors and sub-
contractors necessary access to its own site to enable that
other to carry out the NGC Asset Works or User's Works but
not so as to disrupt or delay the construction and
completion of the other's works on the said sites or the
operation of the other's Plant and Apparatus located
thereon, such access to be in accordance with any reasonable
regulations relating thereto made by the site owner or
occupier.
2.9 Not later than [6] weeks prior to the Commissioning
Programme Commencement Date the User shall provide NGC with
a draft commissioning programme. NGC shall, as quickly as
practicable and in any event within 21 days of receipt
thereof, determine whether or not to approve the proposed
commissioning programme (which approval shall not be
unreasonably withheld or delayed) and shall either notify
the User of its approval or, in the event that NGC
reasonably withholds its approval, notify the User of any
charges or variations to the proposed commissioning
programme recommended by NGC. If the User does not accept
the form of commissioning programme submitted by NGC any
dispute shall be referred to the Independent Engineer for
determination. The Commissioning Programme approved by NGC
or determined by the Independent Engineer as the case may be
shall be implemented by the Parties or their contractors in
accordance with its terms.
3. DELAYS
3.1 If prior to the Practical Completion Date a Party (in this
Sub-Clause, "the Affected Party") shall be delayed in
carrying out any of the Affected Party's Works (including
their commissioning) by reason of any act, default or
omission on the part of the other Party (in this Sub-Clause,
the "Defaulting Party") or the Defaulting Party's employees,
agents, contractors or sub-contractors or of an event of
Force Majeure, the Affected Party shall be entitled to have
such later date or dates fixed as the Commissioning
Programme Commencement Date and/or (as the case may be) the
Completion Date as may be fair and reasonable in the
circumstances provided that it notifies the Defaulting Party
in writing of such act, default or omission or event of
Force Majeure within [28] days thereof together with an
estimate of the proposed delay which it will cause the
Affected Party. In the event of a dispute between the
Parties over what is or are any fair and reasonable new date
or dates to be fixed in the circumstances this shall be
promptly referred to and determined by the Independent
Engineer. Once the new date or dates are fixed the
Construction Programme and/or Commissioning Programme shall
be deemed automatically amended as appropriate.
3.2 If either Party shall have reason to believe that he is
being delayed or will be delayed in carrying out that
Party's Works for any reason (whether it is one entitling
him to the fixing of a new date under Sub-Clause 3.1 or not)
he shall forthwith notify the other party in writing of the
circumstances giving rise to the delay and of the extent of
the actual and/or anticipated delay.
4. LIQUIDATED DAMAGES
4.1 Each Party shall give written notice to the other declaring
its readiness to commence the Commissioning Programme when
this is the case.
4.2 The Commissioning Programme shall commence forthwith once
both Parties have given written notice under Sub-Clause 4.1.
4.3 To the extent that the date of actual commencement of the
Commissioning Programme is later than the Commissioning
Programme Commencement Date due to the failure of one Party
only to give notice under Sub-Clause 5.1 in time such Party
shall pay to the other Party Liquidated Damages for each day
that the date of actual commencement of the Commissioning
Programme is later than the Commissioning Programme
Commencement Date. It is declared and agreed that such
Liquidated Damages shall cease to be payable in respect of
any period after the date of actual commencement of the
Commissioning Programme.
4.4 The Works shall be deemed to have been Commissioned on the
date that the Independent Engineer certifies in writing that
the Commissioning Programme has been completed.
4.5 If the Practical Completion Date is later than the
Completion Date either Party if and to the extent that it is
responsible for delayed completion of the Commissioning
Programme (such responsibility and/or its extent to be
determined by the Independent Engineer failing agreement
between the Parties) shall pay to the other Party Liquidated
Damages for each day that the Practical Completion Date is
later than the Completion Date.
4.6 Liquidated Damages payable under Sub-Clauses 4.3 and 4.5
shall accumulate on a daily basis but shall be payable
monthly. On or before the 15th day of each month the Party
due to receive Liquidated Damages shall send to the other
Party ("the Paying Party") a statement of the Liquidated
Damages which have accrued due in the previous calendar
month. The Paying Party shall in the absence of manifest
error pay the Liquidated Damages which have accrued due in
the previous calendar month. The Paying Party shall in the
absence of manifest error pay the Liquidated Damages shown
on the statement by the end of the calendar month in which
the statement is received by the Paying Party.
4.7 The payment or allowance of Liquidated Damages pursuant to
this Clause 4 shall be in full satisfaction of either
Party's Liability for failure to perform its respective
obligations by the Commissioning Programme Commencement Date
and/or the Completion Date.
5. APPROVAL TO CONNECT/ENERGISE/BECOME OPERATIONAL
5.1 Not later than [4] months prior to the Completion Date or by
such other time as may be agreed between the Parties the
Parties shall prepare and submit the Operation Diagrams and
Site Common Drawings required to be prepared and submitted
by each of them respectively under CC 7.4.4 and 7.4.6.
5.2 Not later than [3] months prior to the Completion Date or by
such other time as may be agreed between the Parties the
Parties shall prepare and submit the Operation Diagrams and
Site Common Drawings required to be prepared and submitted
by each of them respectively under CC 7.4.5 and 7.4.7.
5.3 Not later than [3] months prior to the expected Completion
Date or by such other time as may be agreed between the
Parties each Party shall submit to the other:
(i) data within its possession needed to enable the
completion of Appendices F3 and F4; and
(ii) evidence reasonably satisfactory to NGC that the Users
Equipment complies or will on Completion comply with the
provisions of Clauses 12, 17.1 and 18.
5.4 Not later than [8] weeks prior to the expected Completion
Date or by such other time as may be agreed between the
Parties the each Party shall submit to the other:-
(i) information to enable preparation of Site
Responsibility Schedules complying with the provisions of
Appendix [1] to the Connection Conditions together with a
list of managers who have been duly authorised by the User
to sign such Site Responsibility Schedules on the User's
behalf;
(ii) a list of Safety Coordinators pursuant to Operating
Code 8 and a list of telephone numbers for Joint System
Incidents at which senior management representatives
nominated for the purpose can be contacted; and
(III) a list of the telephone numbers for the facsimile
machines referred to in CC 6.5.8.
5.5 Not later than 30 days prior to the expected Completion Date
the User shall submit a statement of readiness to complete
the Commissioning Programme to NGC together with relevant
Connected Planning Data and a report certifying to NGC that,
to the best of the information, knowledge and belief of the
User, all relevant Connection Conditions applicable to the
User have been considered and complied with. If NGC
considers that it is necessary, it will require this report
to be prepared by the Independent Engineer at NGC's sole
cost and expense. The report shall incorporate if requested
by NGC type test reports and test certificates produced by
the manufacturer showing that the User's Equipment meets the
criteria specified in CC6.
6.0 INDEPENDENT ENGINEER
The Parties agree and shall procure that when the
Independent Engineer is appointed he shall act as an expert
and not as an arbitrator and shall decide those matters
referred or reserved to him under this Supplemental
Agreement by reference to Good Industry Practice using his
skill, experience and knowledge and with regard to such
other matters as the Independent Engineer in his sole
discretion considers appropriate. All references to the
Independent Engineer shall be made as soon as reasonably
practicable and in any event within 14 days of the
occurrence of the dispute to be referred to the Independent
Engineer. The Parties shall promptly supply the Independent
Engineer with such documents and information as he may
request when considering such question. The Independent
Engineer shall use his best endeavours to give his decision
upon the question before him as soon as possible following
its referral to him. The parties shall share equally the
fees and expenses of the Independent Engineer. The Parties
expressly acknowledge that submission of disputes for
resolution by the Independent Engineer does not preclude
subsequent submission of disputes for resolution by
arbitration under Clause 26 of the Master Agreement.
Pending any such arbitration the Parties shall treat the
Independent Engineer's decision as final and binding.
7. CONNECTION/ENERGISATION/BECOMING OPERATIONAL
7.1 Right to become Operational;
NGC shall connect and Energise the User's Equipment at the
Connection Site during the course of an in accordance with
the Commissioning Programme and upon compliance by the User
with the provisions of Clause 5 NGC shall forthwith notify
the User in writing that it has the right to become
Operational.
7.2 Right to remain connected;
Subject to the other provisions of this Agreement and the
Grid Code the User shall have the right for the User's
Equipment to remain connected to the NGC Transmission System
at the Connection Site for the duration of this Supplemental
Agreement.
7.3 Right to be and remain Energised and Operational
Subject to the other provisions of this Agreement and the
Grid Code the User shall have the right for the User's
Equipment at the Connection Site to be and remain Energised
and Operational for the duration of this Supplemental
Agreement.
74. Obligation to remain connected;
Without prejudice to its rights to make Modifications to the
User's Plant pursuant to the Master Agreement and subject to
the provisions of sub-clause 21.2 and the other provisions
of this Agreement and the Grid Code the User shall keep the
User's Equipment at the Connection Site connected to the NGC
Transmission System until Decomissioning or Disconnection is
permitted pursuant to this Supplemental Agreement.
7.5 Registered Capacity
The User if a Generator shall not operate its User's
Equipment such that any of it exceeds its Registered
Capacity save as expressly permitted or instructed pursuant
to the Grid Code or the Fuel Security Code or as may be
necessary or expedient in accordance with Good Industry
Practice.
7.6 Data
Data of technical or operational nature collected, recorded
or otherwise generated pursuant to this Supplemental
Agreement shall be deemed data lodged pursuant to the Grid
Code to the extent that the Grid Code makes provision
therefor.
7.7 Subject to the other provisions of this Agreement and the
Grid Code, NGC shall use all reasonable endeavours to
maintain the NGC Assets at the Connection Site in the
condition necessary to render the same fit for the purpose
of passing power up to the Maximum Export Capacity and/or
the Connection Site Demand Capability as appropriate between
the User's Equipment and the NGC Transmission System.
7.8 Subject to the other provisions of this Agreement and the
Grid Code, NGC shall accept into the NGC Transmission System
at the Connection Site power generated by the User up to the
Maximum Export Capacity except to the extent (if any) that
NGC is prevented from doing so by transmission constraints
which could not be avoided by the exercise of Good Industry
Practice by NGC.
7.9 Subject to the other provisions of this Agreement and the
Grid Code, NGC shall transport a supply of power to the
Connection Site through the NGC Transmission System up to
the Connection Site Demand Capability except to the extent
(if any) that NGC is prevented from doing so by transmission
constraints or by insufficiency of generation which, in
either case, could not have been avoided by the exercise of
Good Industry Practice by NGC.
7.10 Subject to the provisions of the Grid Code each Party shall
be entitled to plan and execute outages of parts of its
System or Plant or Apparatus at any time from time to time.
8. THE CONNECTION SITE AND NGC ASSETS
The Connection Site and NGC Assets to which this
Supplemental Agreement relates are more particularly
described in Appendix A.
9. CONNECTION CHARGES
Subject to the provisions of Clause 6 of this Supplemental
Agreement the User shall pay with effect from the Charging
Date the Connection Charges set out in Appendix B which are
calculated by reference to the NGC Assets specified in
Appendix A in accordance with the provisions of Appendix B.
10. USE OF SYSTEM CHARGES
Subject to the provisions of Clause 6 of this Supplemental
Agreement the User shall pay with effect from the Charging
Date to NGC the Use of System Charges set out in Appendix D
payable in accordance with the provisions of Appendix D.
11. CHARGING RULES
The provisions of the Charging Rules set out in Appendix E
to this Supplemental Agreement shall apply.
12. ANCILLARY SERVICES
The User shall provide the Agreed Ancillary Services set out
in Appendix F1 in accordance with the Grid Code.
13. GRID CODE NON-COMPLIANCE
(Clause deleted)
14. SPECIAL AUTOMATIC FACILITIES
NGC and the User shall operate respectively the NGC
Transmission System and the User System in accordance with
the schemes set out in Appendix F3 hereto.
15. PROTECTION AND CONTROL RELAY SETTINGS/FAULT CLEARANCE TIMES
NGC and the User shall record the respective protection and
control relay settings and fault clearance times to be
operated by each of them in documents in the format set out
in Appendix F4 and shall operate them accordingly.
16. SAFETY RULES
16.1 Safety Rules:
NGC and the User will each supply to the other a copy of
their Safety Rules current from time to time except where
already supplied under another Supplemental Agreement (save
that this exception shall not apply to site specific Safety
Rules) and also a copy of the Local Safety Instructions
applicable at the Connection Site from time to time except
where supplied under another Supplemental Agreement.
16.2 Decommissioning:
Decommissioning of Plant and/or Apparatus at the Connection
Site will be undertaken in accordance with the procedures of
the Safety Rules of whichever of NGC or the User applied
when the Plant and/or Apparatus concerned was in commission.
17. OTHER SITE SPECIFIC TECHNICAL CONDITIONS
17.1 Initial Obligation:
The User shall ensure that on the Completion Date the User's
Equipment complies with the site specific technical
conditions set out in Appendix F5.
17.2 The User shall use all reasonable endeavours to ensure
during the period of this Supplemental Agreement that the
User's Equipment shall continue to comply with the site
specific technical conditions set out in Appendix F5.
17.3 If the User or NGC wishes to modify, alter or otherwise
change the site specific technical conditions or the manner
of their operation:-
(i) under Appendix F4 it may do so upon obtaining the
agreement of the other Party such agreement not to be
unreasonably withheld.
(ii) under Appendix F1, F3, F5 or F6 this shall be deemed to
be a Modification for the purposes of the Master Agreement.
18. METERING
The provisions of Appendix F6 shall have effect.
19. JOINT SYSTEM INCIDENTS
Each Party confirms to the other that its Senior Management
Representatives whose names have been nominated and notified
to the other pursuant to OC9 are fully authorised to make
binding decisions on its behalf for the purposes of OC9.
20. TERM
Subject to the provisions for earlier termination set out
herein and in Clause 17 of the Master Agreement, this
Supplemental Agreement shall continue until the User's
Equipment is Disconnected from the NGC Transmission System
at the Connection Site in accordance with Clauses 22 or 23
hereof.
21. EMERGENCY DEENERGISATION
21.1 Emergency Deenergisation by NGC;
If, in the reasonable opinion of NGC, the condition or
manner of operation of the NGC Transmission System or the
User's System poses an immediate threat of injury or
material damage to any person or to the Total System or to
any User's System or to the NGC Transmission System, NGC
shall have the right to Deenergise the User's Equipment if
it is necessary or expedient to do so to avoid the
occurrence of such injury or damage.
21.2 Emergency Deenergisation by a User;
If, in the reasonable opinion of the User, the condition or
manner of operation of the NGC Transmission System, the
Total System or any other User's System, poses an immediate
threat of injury or material damage to any person or to the
User's System the User shall have the right to Deenergise
the User's Equipment if it is necessary or expedient to do
so to avoid the occurrence of such injury or damage.
21.3 Reenergisation:
NGC or, as the case may be, the User shall Reenergise the
User's Equipment at the Connection Site as quickly as
practicable after the circumstances leading to any
Deenergisation under this Clause 16 have ceased to exist.
22. DEENERGISATION AND DISCONNECTION
22.1 Breach by the User:
If the User shall be in breach of any of the provisions of
this Supplemental Agreement or of the provisions of the
Master Agreement enforcing the provisions of the Grid Code
(but subject always to Sub-Clauses 9.3 and 9.4 of the Master
Agreement) and such breach causes reasonably be expected to
cause a material adverse effect on the business or condition
of NGC or other Users or the NGC Transmission System or
Users Systems then NGC may:-
(i) where the breach is capable of remedy, give notice to
the User specifying in reasonable detail the nature of the
breach and requiring the User within 28 days after receipt
of such notice to remedy the breach or within any longer
period agreed between NGC and the User, the agreement of NGC
not to be unreasonably withheld or delayed; or
(ii) where the breach is incapable of remedy, give written
notice to the User specifying in reasonable detail the
nature of the breach and the reasons why NGC is of the
reasonable opinion that the breach is incapable of remedy
and requiring the User within 5 Business Days after receipt
of such notice to undertake to NGC not to repeat the breach.
22.2 Grid Code Procedures
Whenever NGC serves a notice on the User pursuant to Sub-
Clause 22.1, NGC and the User shall discuss in good faith
and without delay the nature of the breach and each shall
use all appropriate procedures available to it under the
Grid Code (including testing rights and the procedures set
out in OC5 (Testing and Monitoring)) in an attempt to
establish as quickly as reasonably practicable a mutually
acceptable way of ensuring future compliance by the User
with the relevant provision of the Grid Code.
22.3 De-Energisation
22.3.1 If:-
(a) the User fails to give or comply with any valid notice
served on it by NGC in accordance with Sub-Clause 22.1(ii)
or is in breach of any undertaking given in accordance with
Sub-Clause 22.2(ii) and such breach causes or can be
reasonably expected to cause a material adverse effect on
the business or condition of NGC or other Users or the NGC
Transmission System or User Systems; or
(b) five Business Days have elapsed since the date of any
valid notice served on the User in accordance with Sub-
Clause 22.2(ii) and no undertaking is given by the User in
accordance with Sub-Clause 22.2(ii);
NGC may, provided NGC has first complied with OC5 Monitoring
and Testing if appropriate De-Energise the User's Equipment
upon the expiry of at least 48 hours prior written notice to
the User, provided that at the time of expiry of such notice
the breach concerned remains unremedied and that neither
Party has referred the matter to the Dispute Resolution
Procedure set out in Clause 27 of the Master Agreement. In
such event NGC may De-Energise forthwith following
completion of the Dispute Resolution Procedure and final
determination of the dispute in NGC's favour.
22.3.2 If the User fails to comply with the Grid Code and the
Director makes a final order or a confirmed, provisional
order as set out in Sections 25 and 26 of the Act against
the User in respect of such non-compliance which order that
User breaches NGC may De-Energise the User's Equipment upon
the expiry of at least 48 hours prior written notice to the
User provided that at the time of expiry of the notice the
User fails to comply with the order.
22.4 NGC Transmission Licence
If a breach of the nature referred to in Sub-Clause 22.1
continues to the extent that it places or seriously
threatens to place in the immediate future NGC in breach of
the NGC Transmission Licence, NGC may De-Energise the User's
Equipment upon the expiry of at least 12 hours prior written
notice to the User, provided that at the time of expiry of
such notice the breach concerned remains unremedied.
22.5 Re-Energisation Disputes
If, following any De-Energisation pursuant to this Clause
22, the User applies to NGC for the User's Equipment to be
Re-Energised and is refused or is offered terms which the
User does not accept, this shall be recognised as a dispute
over the terms for connection and use of system which the
User may refer to the Director for determination under the
NGC Transmission Licence. If the User accepts any terms
offered by NGC or settled by the Director pursuant to any
such reference, NGC shall Re-Energise the User's Equipment
forthwith after any request from the User for NGC to do so.
22.6 Event of Default
If the breach which led to any De-Energisation pursuant to
this Clause 22 remains unremedied at the expiry of at least
6 months after the date of such De-Energisation, NGC may
declare by notice in writing to the User that such breach
has become an event of default provided that:-
(a) all disputes arising out of the subject-matter to this
Clause 22 which are referred to the Dispute Resolution
procedure have then been finally determined in favour of
NGC; and
(b) any reference to the Director pursuant to Sub-Clause
22.5 has then been finally determined in favour of NGC or
any terms settled by the Director pursuant to such
application have not been accepted by the User.
22.7 Disconnection
Once NGC has given a valid notice of an event of default
pursuant to Sub-Clause 22.6 NGC may give notice of
termination to that User whereupon this Supplemental
Agreement shall terminate and:
(i) NGC shall Disconnect all the User's Equipment at the
Connection Site and NGC and the User concerned shall by
arrangement between them remove any of the User's Equipment
and NGC Assets on the other Party's land within 6 months of
the date of termination or such longer period as may be
agreed between the Parties; and
(ii) that User shall be obliged to pay to NGC forthwith the
Termination Amounts applicable to the Connection Site.
23. NOTICE TO DECOMMISSION OR DISCONNECT
Without prejudice to Sub-Clause 21.2 the User shall give to
NGC not less than 6 months written notice of any intention
of the User either to Decommission the User's Equipment or
to Disconnect the User's Equipment.
24. DISCONNECTION
If notice to Disconnect is given by the User under Clause 23
the User may upon expiry of the period specified in such
notice and not before Disconnect the User's Equipment. At
the expiry of such period this Supplemental Agreement shall
terminate. The User shall pay to NGC all Termination
Amounts applicable to the Connection Site within 28 days
after termination of this Agreement. Within 6 months of the
date of such termination or such longer period as may be
agreed between the Parties the Parties shall by arrangement
with each other remove any of the User's Equipment and NGC
Assets on the other Party's land.
25. DECOMMISSIONING
If notice to Decommission is given by the User under Clause
23 the User may upon expiry of the period specified in such
notice and not before, Decommission the User's Equipment.
This Supplemental Agreement shall not terminate and:-
(i) until the end of the Financial Year in which the
Decommissioning takes place all Connection Charges and Use
of System Charges payable by the User under this
Supplemental Agreement shall continue to be payable in full;
and
(ii) following the end of the Financial Year in which the
Decommissioning takes place the Use of System Charges
payable by the User under this Supplemental Agreement shall
no longer be payable by the User but the Connection Charges
so payable shall continue to be payable.
If and when the User wishes to recommission it shall give
NGC not less than 3 months written notice unless a shorter
period is agreed between the User and NGC.
26. MASTER AGREEMENT
The provisions of Clauses 18 to 24 and 26 to 30 inclusive of
the Master Agreement shall apply to this Supplemental
Agreement as if set out in full herein.
27. VARIATIONS
No variation to this Supplemental Agreement shall be
effective unless made in writing and signed by or on behalf
of both NGC and the User. NGC and the User shall effect any
amendment required to be made to this Supplemental Agreement
by the Director as a result of a change in the Transmission
Licence or an order or directions made pursuant to the Act
or a Licence or as a result of settling any of the terms
hereof and the User hereby authorises and instructs NGC to
make any such amendment on its behalf and undertakes not to
withdraw, qualify or revoke such authority or instruction at
any time.
IN WITNESS WHEREOF the hands of the duly authorised
representatives of the parties hereto at the date first
above written
THE NATIONAL GRID COMPANY PLC )
By
)
[the USER] )
By
)
APPENDIX A
NGC's ASSETS/CONNECTION SITE
COMPANY:
CONNECTION SITE:
TYPE:
NGC ASSETS:
QUANTITY VOLTAGE DESCRIPTION
AGE (Years)
SCHEMATIC DIAGRAM:
AREA:
APPENDIX B
CONNECTION CHARGES/PAYMENT
1) CONNECTION CHARGES:
COMPANY:
CONNECTION SITE:
TYPE:
CHARGES: pounds for the period from
1st April 1990 to 31st
March 1991 and thereafter as
determined in accordance
with the Charging Rules.
2) PAYMENT:
The Charges shall be payable in 12 equal monthly instalments
as
specified in Clause 14 of the Master Agreement.
APPENDIX C
ZONE/REGISTERED CAPACITY/PEAK HALF-HOURS/ESTIMATED DEMAND
COMPANY:
GRID SUPPLY POINT/
CONNECTION SITE:
ELECTRICAL LOCATION OF ENERGY METERING
EQUIPMENT MEASURING STATION DEMAND:
ZONE:
a. GENERATION:
REGISTERED
SET TYPE/FUEL CAPACITY MW
b. In the Financial Year 1st April 1990 to 31st March 1991
NGC's Demand related Use of System charges shall be
calculated by reference to the Demand attributable to the
User at the Grid Supply Point identified above in relation
to the 3 half-hours of peak Demand (Active Power) occurring
on the 3 days of peak Demand (Active Power) which occur in
the period from 1st November 1990 to 28th February 1991 and
are at least 10 days apart.
c. In the Financial Year 1st April 1990 to 31st March 1991
NGC's generation related Use of System Charges shall be
calculated by reference to the highest Registered Capacity
during such Financial Year and the Energy produced.
d. ESTIMATED DEMAND for the period between 1 April 1990 and
31st March 1991 and thereafter as notified in accordance
with the Charging Rules.
_______________MW
APPENDIX D
USE OF SYSTEM CHARGES/PAYMENT
Company:
Location:
1) TYPE OF CHARGE: SYSTEM SERVICE
A. Demand Related
pounds__________ in respect of the period from 1st April
1990 to 31st March 1991 payable in 12 equal monthly
instalments subject to adjustment in accordance with the
Charging Rules.
Note: based upon a charge of pounds______ per KW and _____KW of
Estimated Demand as set out in Appendix C.
2) TYPE OF CHARGE: INFRASTRUCTURE
A. Demand Related
pounds___________in respect of the period from 1st April
1990 to 31st March 1991 payable in 12 equal monthly
instalments subject to adjustments in accordance with the
Charging Rules.
Note: based upon a charge of pounds_____ per KW and ______KW of
Estimated Demand as set out in Appendix C.
B. Capacity Related
Pounds___________ in respect of the period from 1st April
1990 to 31st March 1991 payable in 12 equal monthly
instalments subject to adjustment in accordance with the
Charging Rules based upon a charge of _____ pounds per KW
Registered Capacity and _____KW being the Registered
Capacity as set out in Appendix C.
C. Energy Related
_____ pounds per Kwh in respect of each Kwh of Energy entering
the Total System in the period from 31st March 1990 to 31st
March 1991 payable as described in Clause 14 of the Master
Agreement.
Payment shall be made in accordance with Clause 14 of the Master
Agreement.
APPENDIX E
CHARGING RULES
1. Use of System Charges - General and Data Requirements
1.1 NGC's Demand related Use of System Charges are calculated by
reference to Demand (Active Power) attributable to each Grid
Supply Point excluding that Demand (Active Power) met by
embedded Generating Units which is to be paid for otherwise
than pursuant to the Pooling and Settlement Agreement.
1.2 Data Requirements
1.2.1 On or before 31st December in each Financial Year the
User shall supply NGC with such data as NGC may from time to
time reasonably request to enable NGC to calculate the
Connection Charges and/or Use of System Charges due from the
User to NGC in respect of the Connection Site including the
data specified in Appendix C.
1.2.2 On or before 31st December in each Financial Year,
(i) Users who are Public Electricity Suppliers shall supply to
NGC a forecast for the following Financial Year of the
following:-
(a) the Natural Demand attributable to each Grid Supply Point
equal to the average of the forecasts of Natural Demand
under Annual Average Cold Spell (ACS) Conditions
attributable to such Grid Supply Point for each of a number
of peak half-hours as notified by NGC to the User under
paragraph 2.1 of this Appendix E; and
(b) the PES Supply Business Demand attributable to each Grid
Supply Point equal to the average of the forecasts of PES
Supply Business Demand under Annual Average Cold Spell (ACS)
Conditions attributable to such Grid Supply Point for each
of a number of peak half-hours as notified by NGC to the
User under paragraph 2.1 of this Appendix E.
(ii) Users who are Second Tier Suppliers shall supply to NGC a
forecast for the following Financial Year of the STS Demand
under Annual Average Cold Spell (ACS) Conditions
attributable to each Grid Supply Point equal to the average
of the forecasts of STS Demand attributable to such Grid
Supply Point for each of a number of peak half-hours as
notified by NGC to the User under paragraph 2.1 of this
Appendix E.
(iii) Users who are Generators shall supply to NGC a forecast
for the following Financial Year of the Station Demand
(Active Power) under Annual Average Cold Spell (ACS)
Conditions attributable to each Grid Supply Point equal to
the average of the forecasts of such Station Demand (Active
Power) attributable to such Grid Supply Point for each of a
number of peak half-hours as notified by NGC to the User
under paragraph 2.1 of this Appendix E.
1.3 Annual Adjustment
1.3.1 NGC's Demand related Use of System Charges shall be
calculated on the basis of actual Demand (Active Power)
attributable to each User at each Grid Supply Point for each
of a number of peak half hours as notified by NGC to the
User under paragraph 2.1 of this Appendix E.
1.3.2 On or before 1st March each Financial Year NGC shall:-
(i) determine from meter readings of Energy Metering Equipment
the actual Demand (Active Power) attributable to each User
at each Grid Supply Point for each of the Number of Peak
Half Hours applicable during such Financial Year; and
(ii) shall compare the User's highest Registered Capacity during
such year with the Registered Capacity used when estimating
the charges due during such Financial Year;
1.3.3 NGC shall then promptly calculate on the basis of the
actual position determined in accordance with paragraph
1.3.2 the amount of Demand related or Capacity related Use
of System Charges (as the case may be) that would have been
payable by the User under this Supplemental Agreement during
each month during that Financial Year if they had been
calculated on the basis of that of the actual position (the
"Actual Amount"). NGC shall then compare the Actual Amount
with the amount of Demand related or Capacity related Use of
System Charges (as the case may be) paid during each month
during that Financial Year by the User under this
Supplemental Agreement (the "Notional Amount").
1.3.4 NGC shall then prepare a reconciliation statement and
send it to the User. Such statement shall specify the
Actual Amount and the Notional Amount for each month during
the relevant Financial Year and, in reasonable detail, the
information from which such amounts were derived and the way
in which they were calculated.
1.3.5 Together with the reconciliation statement NGC shall
send the User an invoice in relation to any sums shown by
the reconciliation statement to be due to NGC and interest
thereon calculated pursuant to paragraph 1.3.6 below.
Forthwith following receipt of any reconciliation statement
the User shall send to NGC an invoice in relation to any sum
shown by the reconciliation statement to be due to the User
and interest thereon calculated pursuant to paragraph 1.3.6
below. Such invoices shall be payable on or before 31st
March in such Financial Year.
1.3.6 In respect of each month during that Financial Year:-
(a) the User shall, following receipt of an appropriate invoice,
pay to NGC an amount equal to the amount (if any) by which
the Actual Amount exceeds the Notional Amount; and
(b) NGC shall, following receipt of an appropriate invoice,
repay to the User an amount equal to the amount (if any) by
which the Notional Amount exceeds the Actual Amount.
Interest shall be payable by the paying Party to the other
on such amounts from the Payment Date applicable to the
month concerned until the date of actual payment of such
amounts (which shall not be later than 31st March in such
Financial Year). Such interest shall be calculated on a
daily basis at the rate equal to the base rate of Barclays
Bank PLC for the time being and from time to time during
such period.
2. Revision of Charges
2.1 To the extent permitted by the Transmission Licence NGC may
revise its Connection Charges and Use of System Charges or
the basis of their calculation including issuing revisions
to Appendices B, C and D hereto. On or before 31st October
in each Financial Year NGC shall notify the User of the
intended basis of calculation to be used by NGC in the
following Financial Year (including the number and timing of
peak half-hours if any to be used when calculating Demand
related infrastructure charges) and shall consult with the
User concerning the same. On or before 30th November in
each Financial Year NGC shall confirm to the User the basis
of calculation to be used in the following Financial Year.
NGC shall give the User not less than 2 months prior written
notice of any revised charges, including revisions to
Appendices B, C and D hereto, which notice shall specify the
date upon which such revisions become effective (which may
be at any time). The User shall pay any such revised
charges and Appendix B, C and/or D as appropriate shall be
amended automatically (and a copy sent to the User) to
reflect any changes to such Appendices with effect from the
date specified in such notice.
2.2 The User acknowledges that NGC will establish a new asset
register during the course of the Financial Year ending 31st
March 1991. As a result, NGC shall have the right to vary
the asset allocation reflected in Appendix A upon giving not
less than 2 months prior written notice to the User provided
that:-
(a) NGC has first consulted the User in advance in good
faith, including informing the User of the nature of the
reallocation insofar as it materially affects the Connection
Site and indicating the likely implications for the User of
such reallocation; and
(b) the principles of asset allocation are those set out in
the statements required by Condition 10(2)D of the
Transmission Licence, the form of which as has been approved
by the Director.
Such asset reallocation shall be effective from 1st April
1991 and the provisions of Appendices A and B shall be
amended automatically (and a copy sent to the User) to
reflect such reallocation with effect from such date.
2.3 Subject to the provisions of paragraph 3.2 below if in the
reasonable opinion of NGC any development, replacement,
renovation, alteration, construction or other work to the
NGC Transmission System means that NGC needs to vary the
Connection Charges payable by the User in relation to the
Connection Site NGC shall have the right to vary such
charges accordingly upon giving to the User not less than 2
months prior written notice. Such notice shall be deemed to
be a revised Connection Offer and before any such variation
become effective the provisions of Sub- Clauses 11.2 and
11.4 shall apply mutatis mutandis. Following any such
variation the provisions of Appendices A and B shall be
amended automatically (and a copy sent to the User) to
reflect such variation with effect from the date such
variation comes into effect.
3. Replacement of NGC Assets
3.1 Appendix A specifies the age of each of the NGC Assets at
the Connection Site at the date of this Supplemental
Agreement. NGC Connection Charges and Use of System Charges
are calculated on the assumption that NGC Assets will not
require replacement until the expiry of the Replacement
Period applicable to each NGC Asset concerned. Such
Replacement Periods have been agreed between NGC and the
User. For the avoidance of doubt, they have been prepared
for accounting purposes and carry no implication that they
represent the actual useful lives of such assets.
3.2 Where in NGC's reasonable opinion an NGC Asset requires
replacement before the expiry of its Replacement Period NGC
shall, with the prior written approval of the User (except
where in NGC's reasonable opinion such replacement is
necessary, in which case such approval shall not be required
but in such case the User shall have the right to give
notice to Disconnect) have the right to replace the NGC
Asset at no additional cost to the User until expiry of its
original Replacement Period. Upon the expiry of such
original Replacement Period NGC shall be entitled to vary
the Connection Charges in respect of the replaced NGC Asset
so that they are calculated on the basis of the then current
Net Asset Value of such NGC Assets. NGC shall give the User
not less than 2 months prior written notice of such varied
charges which notice shall specify the date upon which such
increase becomes effective. The User shall pay such varied
charges and Appendices A and B shall be amended
automatically (and a copy sent to the User) to reflect such
revised charges with effect from the date specified in such
notice.
3.3 Upon the expiry of the Replacement Period of any NGC Asset,
NGC shall replace such NGC Asset if requested to do so by
the User of if in NGC's reasonable opinion it is necessary
to do so to enable NGC to comply with its Licence
obligations. Unless so replaced, NGC shall keep the NGC
Asset in service. In the event that it is left in service
the User shall pay Connection Charges in respect of such NGC
Asset calculated by reference to Net Asset Value derived
from a revaluation of the asset by NGC (which in the
reasonable opinion of NGC, taking into account the
depreciation already paid over the lifetime of that asset,
reflects the then expected life expectancy of the asset plus
capitalised renovation or refurbishment costs). Upon any
such replacement NGC shall be entitled to vary the
Connection Charges in respect of the replaced NGC Asset so
that they are calculated on the basis of the then current
Net Asset Value of such NGC Asset. NGC shall give the User
not less than 2 months prior written notice of such varied
charges which notice shall specify the date upon which such
increase becomes effective. The User shall pay such varied
charges and Appendices B and D shall be amended
automatically (and a copy sent to the User) to reflect such
revised charges with effect from the date notified to the
User by NGC.
4. Termination Amounts
4.1 Until the end of the Financial Year in which the termination
occurs the User shall pay to NGC the Connection Charges and
Use of System Charges for which the User is liable in full.
Where the User has a Connection Site the User shall at the
end of such Financial Year pay to NGC a sum equal to the
following:-
(i) the then current Net Asset Value of the NGC Assets at
the Connection Site in question; and
(ii) a sum equal to the reasonable cost of removing such NGC
Assets.
4.2 Where a Termination Amount is paid to NGC under this
Agreement and subsequently NGC uses the NGC Assets at the
same or another Connection Site and renders and receives a
Connection Charge therefor NGC shall pay to the User the Net
Asset Value component of the Termination Amount less
reasonable maintenance and storage costs. NGC shall use its
reasonable endeavours to re-use such NGC Assets where it is
economic to do so. Upon request and at the cost of the
User, NGC shall issue a certificate no more frequently than
once each calendar year indicating whether or not such NGC
Assets have or have not been so re-used.
5. Variation of Charges by NGC during the Financial Year
If NGC is notified of a reduced Demand forecast by a PES or
STS from the forecast submitted under paragraph 1.2 of this
Appendix and is also notified of a corresponding increase in
such a Demand forecast by another PES or STS NGC shall vary
the Use of System charges due from the User notifying the
reduction such that the charges payable reflect the revised
forecast within 30 days of receipt of the 2 notices. NGC
shall vary or commence charging as the case may be the Use
of System charges due from the User notifying the increase
with effect from the date that the increase becomes
effective. Save where NGC receives 2 corresponding
notifications there shall unless NGC decides otherwise be no
variation of charges downwards during the Financial Year to
cover this eventuality and reconciliation shall be effected
pursuant to paragraph 1.3 of this Appendix.
6. Deductions
In respect of any NGC Engineering Charges which have been
paid by the User in connection with a Connection Application
or under Sub-Clause 2.3 of the Supplemental Agreement Type 2
NGC shall reduce the amount of Connection Charges payable by
the User in relation to the respective Connection Site on
1st April in each of the first 3 years of the payment of
such Connection Charges by an amount equal on each occasion
to one third of such NGC Engineering Charges.
APPENDIX F1
SITE SPECIFIC TECHNICAL CONDITIONS
Agreed Ancillary Services
[Black Start Capability
Gas Turbine Unit Fast Start
Synchronous Compensation
Pumped Storage Unit Spinning-in-Air
Pumped Storage
Pumped Storage Plant Fast Start from Standstill
Demand Reduction
Adjustment to Pumped Storage Unit Pumping Programme
Hot Standby]
APPENDIX F2
(NOT USED)
APPENDIX F3
SITE SPECIFIC TECHNICAL CONDITIONS
Special Automatic Facilities
(a) NGC Transmission System to Generating Unit
Intertripping
schemes.
(b) NGC Transmission System to Demand Intertripping
schemes.
(c) NGC Transmission System to Directly Connected Customers
Intertripping Schemes.
(d) Auto open/close schemes.
(e) System splitting or islanding schemes which impact on
the
User's system or plant.
APPENDIX F4
SITE SPECIFIC TECHNICAL CONDITIONS
Protection and Control Relay Settings/Fault Clearance
Times
Pro-formas attached
APPENDIX F5
SITE SPECIFIC TECHNICAL CONDITIONS
(1) Protection of Interconnecting Connection
This applies if the User is a Generator or a Supplier. The
term "interconnecting connection" means the primary
conductors from the current transformer accommodation on the
circuit transformer accommodation on the circuit side of
the circuit breaker to the Connection Point.
NGC will design the protection scheme for the
Interconnecting Connections at the New Connection Site after
the Construction Programme has commenced. In order to
provide the required dependability and setting the User will
be required to install relays and auxiliary components for
the User circuits which are compatible with those used by
NGC. NGC will provide the common and per zone equipment.
The User shall:-
(a) provide the per circuit equipment specified below.
[NGC to propose - parties to agree]
(b) provide AC and Dc buswiring including back trip
buswires, specified below.
[NGC to propose - parties to agree}
(c) the CT characteristics required of the above buswiring
are set out below.
[NGC to propose - parties to agree]
(2) Circuit breaker fail protection
If the User is a Generator.
(a) The User shall install the circuit breaker fail
protection equipment specified below.
[NGC to propose - parties to agree]
(b) The User will also provide a back-trip signal in the
event of a loss of air from its pressurised head circuit-
breakers during the Users run-up sequence.
(3) Pole Slipping
The User shall fit pole-slipping protection complying with
the performance of criteria specified below.
[NGC to propose - parties to agree]
(4) Fault Disconnection Facilities
If the User is a PES or Non-Embedded Customer and no NGC
circuit-breaker is provided at the Users connection voltage
the User shall provide NGC with the means of tripping all of
the Users circuit breakers necessary to isolate faults or
system abnormalities on the NGC Transmission System. In
these circumstances for faults on the Users System, the
Users protection should also trip higher voltage NGC circuit
breakers. These tripping facilities shall comply with
requirements set out below.
[NGC to propose - parties to agree]
(5) Automatic Switching Equipment
If the User is a PES or Non-embedded Customer only and if
automatic reclosure of NGC circuit-breakers is required
following faults on the Users System the User shall provide
automatic switching equipment for reclosure of NGC circuit-
breakers following faults on the Users System. This
equipment shall be designed in accordance with the
requirements set out below.
[NGC to propose - parties to agree]
(6) Control Arrangements
If the User is a Generator: The User shall install a
continuously-acting automatic excitation control system to
control the Generating Unit terminal voltage without
instability over the entire operating range of the
Generating Unit. System requirements for excitation control
facilities including power system stabilisers are set out
below.
[NGC to propose - parties to agree]
(7) Control Telephony
The User shall provide the control Telephony specified
below.
[NGC to propose - parties to agree]
(8) System Monitoring
The voltage and current signals for system monitoring
purposes to be provided by the User at the sole expense of
NGC are set out below:-
[NGC to specify: these will consist only of
signals from the User's current transformer
and voltage transformer in the manner and
from the locations set out here]
(9) Operational Metering
The User shall provide the operational metering set out
below.
[NGC to propose - parties to agree]
APPENDIX F6
SITE SPECIFIC TECHNICAL CONDITIONS
Metering
1.1 Operator
Where the Connection Site is a Grid Supply Point, and the
User is or will be Registrant in relation to the Energy
Metering Equipment required by the Pooling and Settlement
Agreement at the Grid Supply Point and/or at the bulk supply
point(s) which are related to that Grid Supply Point, NGC
shall install and be the Operator of all such Energy
Metering Equipment from the Transfer Date until the FMS Date
and thereafter:-
1.1.1 NGC may resign as Operator of such Energy Metering
Equipment on giving no less than 12 months' notice in
writing; and
1.1.2 the User may remove NGC as Operator upon giving no
less than 12 months' notice in writing.
Provided that where the User agrees to become owner of any
such Energy Metering Equipment NGC may resign as Operator
upon such transfer of ownership and shall agree such terms
shall be reasonably necessary to enable the User to perform
its obligations as Operator of such Energy Metering
Equipment.
1.2 Charges
NGC shall recover its charges for acting as Operator of any
Energy Metering System which is an NGC Asset charged for
under this Supplemental Agreement as part of such charges.
Where NGC acts as Operator of any other Energy Metering
System owned by NGC for which the User is Registrant NGC
shall charge and the User shall pay such amount which is
reasonable in all the circumstances.
1.3 Interference
The User shall ensure that its employees, agents and
invitees will not interfere with any Energy Metering
Equipment in respect of which NGC is Operator or the
connections to such Energy Metering Equipment, without the
prior written consent of NGC (except to the extent that
emergency action has to be taken to protect the health and
safety of persons or to prevent serious damage to property
proximate to the Energy Metering Equipment or to the extent
that such action is authorised under the Master Agreement or
any other agreement between NGC and the User).
1.4 Pulse data
The User shall have the right to collect and record pulses
from the meters comprised in the Energy Metering System(s)
at the Connection Site. NGC shall give the User access in
accordance with the Interface Agreement to collect and
record such pulses and to install and maintain such lines
and equipment as may be reasonably necessary therefor.
APPENDIX G
NGC ASSET WORKS
APPENDIX H
NGC REINFORCEMENT WORKS
APPENDIX I
USERS WORKS
APPENDIX J
CONSTRUCTION PROGRAMME
APPENDIX K
LIQUIDATED DAMAGES
APPENDIX L
INDEPENDENT ENGINEER
EXHIBIT 3
DATED 30th March 1990
THE NATIONAL GRID COMPANY PLC ( I )
and
[ ] (2)
SUPPLEMENTAL AGREEMENT TYPE 3
(for Generators with Embedded Generating Plant or
Small Independent Generating Plant and who are acting in that
capacity and who are passing power on to a Distribution System
through a connection with a Distribution System Commissioned
at the Transfer Date)
CONTENTS
Clause Title
1 Definitions, Interpretation, Construction
2 Right to Use the NGC Transmission System
3 The Site of Connection to the Distribution System
4 Use of System Charges
5 Charging Rules
6 Ancillary Services
7 (Clause deleted)
8 Other Site Specific Technical Conditions
9 Metering
10 Joint System Incidents
11 Term
12 Emergency Deenergisation
13 Deenergisation and Disconnection
14 Notice to Decommission or Disconnect
15 Disconnection
16 Decommissioning
17 Master Agreement
18 Variations
Appendix A Site of Connection
Appendix B
Appendix C Location of Generation/Demand
Appendix D Use of System Charges/Payment
Appendix E Charging Rules
Appendix F1 Site Specific Technical Conditions - Ancillary Services
Appendix F2 (Not used)
Appendix F3 Site Specific Technical Conditions - Special Automatic Facilities
Appendix F4 Site Specific Technical Conditions - Metering
THIS SUPPLEMENTAL AGREEMENT is made the 30th day of March 1990
and becomes effective on the 31st day of March 1990
BETWEEN
(1) THE NATIONAL GRID COMPANY PLC a company registered in England
with number 2366977 whose registered office is at National Grid
House, Sumner Street, London SE I 9JU ("NGC" which expression
shall include its successors and/or permitted assigns); and
(2) [ ] a company registered in [ ] with number [ ] whose
registered office is at [ ] (the "User" which expression shall
include its successors and/or permitted assigns
WHEREAS
(A) NGC and the User are parties to a Master Connection and Use
of System Agreement dated [ ] ("Master Agreement").
(B) This Supplemental Agreement is entered into pursuant to the
terms of the Master Agreement and shall be read as being governed
by them.
NOW IT IS HEREBY AGREED as follows:-
1. DEFINITIONS. INTERPRETATION AND CONSTRUCTION
1. 1 General
Unless the subject matter or context otherwise requires or is
inconsistent therewith terms and expressions defined in Schedule
2 to the Master Agreement have the same meanings, interpretations
or constructions in this Supplemental Agreement.
2. RIGHT TO USE THE NGC TRANSMISSION SYSTEM
2.1 Subject to the other provisions of this Agreement including
the provisions of the Grid Code, the User may transmit supplies
of power on to and/or take supplies of power from the NGC
Transmission System as the case may be.
2.2 Registered Capacity
The User if a Generator shall not operate its User's Equipment
such that any of it exceeds its Registered Capacity save as
expressly permitted and instructed pursuant to the Grid Code or
the Fuel Security Code or as may be necessary or expedient in
accordance with Good Industry Practice.
2.3 Data
Data of a technical or operational nature collected recorded or
otherwise generated pursuant to this Supplemental Agreement shall
be deemed data lodged pursuant to the Grid Code to the extent
that the Grid Code makes provision therefor.
2.4 Subject to the other provisions of this Agreement and the
Grid Code, NGC shall accept into the NGC Transmission System
Active Power generated by the User up to the Maximum Export
Capacity except to the extent (if any) that NGC is prevented from
doing so by transmission constraints which could not be avoided
by the exercise of Good Industry Practice by NGC.
2.5 Subject to the provisions of the Grid Code each Party shall
be entitled to plan and execute
outages of parts of its System or Plant or Apparatus at any time
and from time to time.
2.6 Provision of Data
The majority of the data required under the Grid Code has been
supplied by the User prior to the Transfer Date. However, in
respect of the following data required under the Planning Code of
the Grid Code it is agreed that the User need only supply it
under the Grid Code within one year of the Transfer Date, unless
NGC requests it in writing before the expiry of that period, in
which case the User from whom the data is requested must supply
it within six weeks of receiving that request, except in the case
of the data referred to in PCA 5.3.1(g) which need only be
supplied within three months of receiving that request. The data
to which this clause applies is that referred to in the following
paragraphs of the Planning Code:-
PCA 2.3
PCA 4.3.7
PCA 4.3.9
PCA 5.2.1
PCA 5.2.2
PCA 5.3.1 (g)
NGC shall also be able to request a User in writing at any time
to supply to NGC any data under the Planning Code which it should
have supplied to NGC prior to the Transfer Data, but which it did
not supply, and the User must supply that data upon receiving
that request.
3. THE SITE OF CONNECTION TO THE DISTRIBUTION SYSTEM
The Site of connection to the Distribution System to which this
Supplemental Agreement relates is more particularly described in
Appendix A.
4. USE OF SYSTEM CHARGES
Subject to the provisions of Clause 5 of this Supplemental
Agreement the User shall with effect from the commencement of
this Supplemental Agreement pay to NGC the Use of System Charges
set out in Appendix D payable in accordance with the provisions
of Appendix E.
5. CHARGING RULES
The provisions of the Charging Rules set out in Appendix E to
this Supplemental Agreement shall apply.
6. ANCILLARY SERVICES
The User shall provide the Agreed Ancillary Services set out in
Appendix F1 in accordance with the Grid Code.
7. GRID CODE NON-COMPLIANCE
(Clause deleted)
8. OTHER SITE SPECIFIC TECHNICAL CONDITIONS
8.1 NGC and the User shall operate respectively the NGC
Transmission System and the User System with the special
automatic facilities and schemes set out in Appendix F3.
8.2 If the User or NGC wishes to modify, alter or otherwise
change the site specific technical conditions or the manner of
their operation under Appendix Fl, F2, F3 or F4 this shall be
deemed to be a Modification for the purposes of the Master
Agreement.
8.3 Where on or immediately prior to the Transfer Date the Users
Equipment has any of the following technical attributes or
facilities:-
(i) control arrangements
(ii) voltage and current signals for system monitoring
(iii) control telephony
(iv) operational metering
the User shall use all reasonable endeavours to ensure that
during the period of this Supplemental Agreement the Users
Equipment retains such technical attributes or facilities
provided always that if the User wishes to modify alter or
otherwise change the same or their operation it may do so by
following the procedures relating to a Modification in accordance
with the Master Agreement.
9. METERING
The provisions of Appendix F4 shall have effect.
10. JOINT SYSTEM INCIDENTS
Each Party confirms to the other that its Senior Management
Representatives whose names have been nominated and notified to
the other pursuant to OC9 are fully authorised to make binding
decisions on its behalf for the purposes of OC9.
11. TERM
Subject to the provisions for earlier termination set out herein
and in Clause 17 of the Master Agreement, this Supplemental
Agreement shall continue until the User's Equipment is
Disconnected from the Distribution System in accordance with
Clause 13 or 15 hereof.
12. EMERGENCY DEENERGISATION
12.1 Emergence Deenergisation requested by NGC:
If, in the reasonable opinion of NGC, the condition or manner of
operation of the NGC Transmission System or the User's System
poses an immediate threat of injury or material damage to any
person or to the Total System or to any User's System or to the
NGC Transmission System, NGC shall have the right to request the
owner of the Distribution System to which the User is connected
to Deenergise the User's Equipment if it is necessary or
expedient to do so to avoid the occurrence of such injury or
damage.
12.2 Emergency Deenergisation by a User
If, in the reasonable opinion of the User, the condition or
manner of operation of the NGC Transmission System, the Total
System or any other User's System, poses an immediate threat of
injury or material damage to any person or to the User's System
the User shall have the right to Deenergise the User's Equipment
if it is necessary or expedient to do so to avoid the occurrence
of such injury or damage.
12.3 Reenergisation:
The User's Equipment at the Connection Site shall be Re-Energised
as quickly as practicable after the circumstances leading to any
Deenergisation under this Clause 12 have ceased to exist.
13. DEENERGISATION AND DISCONNECTION
13.1 Breach by the User
If the User shall be in breach of any of the provisions of this
Supplemental Agreement or of the provisions of the Master
Agreement enforcing the provisions of the Grid Code (but subject
always to Sub-Clauses 9.3 and 9.4 of the Master Agreement) and
such breach causes or can reasonably be expected to cause a
material adverse effect on the business or condition of NGC or
other Users or the NGC Transmission System or Users Systems then
NGC may:-
(i) where the breach is capable of remedy, give written notice
to the User specifying in reasonable detail the nature of the
breach and requiring the User within 28 days after receipt of
such notice to remedy the breach or within any longer period
agreed between NGC and the User, the agreement of NGC not to be
unreasonably withheld or delayed; or
(ii) where the breach is incapable of remedy, give written
notice to the User specifying in reasonable detail the nature of
the breach and the reasons why the breach is incapable of remedy
and requiring the User within 5 Business Days after receipt of
such notice to undertake to NGC not to repeat the breach.
13.2 Grid Code Procedures
Whenever NGC serves a notice on the User pursuant to Sub-Clause
13.1, NGC and the User shall discuss in good faith and without
delay the nature of the breach and each shall use all appropriate
procedures available to it under the Grid Code (including testing
rights and the procedures set out in the OC5 (Testing and
Monitoring) in an attempt to establish as quickly as reasonably
practicable a mutually acceptable way of ensuring future
compliance by the User with the relevant provision of the Grid
Code.
13.3 De-Energisation
13.3.1 If:-
(a) the User fails to comply with the terms of any valid notice
served on it by NGC in accordance with Sub-Clause 13.1(i) or is
in breach of any undertaking given in accordance with Sub-Clause
13.1 (ii) and such breach causes or can be reasonably expected to
cause a material adverse effect on the business or condition of
NGC or other Users or the NGC Transmission System or User
Systems; or
(b) five Business Days have elapsed since the date of any valid
notice served on the User in accordance with Sub-Clause 13.2(ii)
and no undertaking is given by the User in accordance with
Sub-Clause 13.2(ii);
NGC may, provided NGC has first complied with OC5 Testing and
Monitoring if appropriate, request the owner of the Distribution
System to which the User is connected to De-Energise the User's
Equipment upon the expiry of at least 48 hours prior written
notice to the User, provided that at the time of expiry of such
notice the breach concerned remains unremedied and that neither
Party has referred the matter to the Dispute Resolution Procedure
set out in Clause 27 of the Master Agreement. In such event NGC
may request the owner of the Distribution System to which the
User is connected to De-Energise forthwith following completion
of the Dispute Resolution Procedure and final determination of
the dispute in NGC's favour.
13.3.2 If the User fails to comply with the Grid Code and the
Director makes a final order or a confirmed provisional order as
set out in Sections 25 and 26 of the Act against the User in
respect of such non-compliance which order the User breaches NGC
may request the owner of the Distribution System to which the
User is connected to De-Energise the User's Equipment upon the
expiry of at least 48 hours prior written notice to the User
provided that at the time of expiry of the notice the User fails
to comply with the order.
13.4 NGC Transmission Licence
If a breach of the nature referred to in Sub-Clause 13.1
continues to the extent that it places or seriously threatens to
place in the immediate future NGC in breach of the NGC
Transmission Licence, NGC may request the owner of the
Distribution System to which the User is connected to De-Energise
the User's Equipment upon the expiry of at least 12 hours prior
written notice to the User, provided that at the time of expiry
of such notice the breach concerned remains unremedied.
13.5 Re-Energisation Disputes
If, following any De-Energisation pursuant to this Clause 13, the
User applies to NGC for NGC to issue instructions that the User's
Equipment should be Re-Energised and is refused or is offered
terms which the User does not accept, this shall be recognised as
a dispute over the terms for connection and use of system which
the User may refer to the Director for determination under the
NGC Transmission Licence. If the User accepts any terms offered
by NGC or settled by the Director pursuant to any such reference,
NGC shall request the owner of the Distribution System to which
the User is connected to Re-Energise the User's Equipment
forthwith after any request from the User for NGC to do so.
13.6 Event of Default
If the breach which led to any De-Energisation pursuant to this
Clause 13 remains unremedied at the expiry of at least 6 months
after the date of such De-Energisation, NGC may declare by notice
in writing to the User that such breach has become an event of
default provided that: -
(a) all disputes arising out of the subject-matter to this
Clause 13 which are referred to the Dispute Resolution Procedure
have then been finally determined in favour of NGC; and
(b) any reference to the Director pursuant to sub-clause 13.5
has then been finally determined in favour of NGC or any terms
settled by the Director pursuant to such application have not
been accepted by the User.
13.7 Disconnection
Once NGC has given a valid notice of an event of default pursuant
to Sub-Clause 13.6 NGC may give
notice of termination to that User whereupon this Supplemental
Agreement shall terminate and:
(i) NGC shall request the owner of the Distribution System to
which the User is connected to Disconnect all the User's
Equipment at the site of connection; and
(ii) that User shall be obliged to pay to NGC forthwith the Use
of System Charges due hereunder up to the end of the Financial
Year in which Termination occurs.
14. NOTICE TO DECOMMISSION OR DISCONNECT
Without prejudice to Sub-Clause 12.2 the User shall give to NGC
not less than 6 months written notice of any intention of the
User either to Decommission the User's Equipment or to Disconnect
the User's Equipment.
15. DISCONNECTION
If notice to Disconnect is given by the User under Clause 14 the
User may upon expiry of the period specified in such notice and
not before Disconnect the User's Equipment. At the expiry of
such period this Supplemental Agreement shall terminate. The User
shall pay to NGC all Use of System Charges due hereunder up to
the end of the Financial Year in which termination occurs within
28 days after termination of this Agreement.
16. DECOMMISSIONING
If notice to Decommission is given by the User under Clause 14
the User may upon expiry of the period specified in such notice
and not before, Decommission the Users Equipment. This
Supplemental Agreement shall not terminate and:-
(i) until the end of the Financial Year in which the
Decommissioning takes place all Use of System Charges payable by
the User under this Supplemental Agreement shall continue to be
payable in full.
(ii) following the end of the Financial Year in which the
Decommissioning takes place the Use of System Charges payable by
the User under this Supplemental Agreement shall no longer be
payable by the User If and when the User wishes to recommission
it shall give NGC not less than 3 months written notice unless a
shorter period is agreed between NGC and the User.
17. MASTER AGREEMENT
The provisions of Clauses 18 to 24 and 26 to 30 inclusive of the
Master Agreement shall apply to this Supplemental Agreement as if
set out in full herein.
18. VARIATIONS
No variation to this Supplemental Agreement shall be effective
unless made in writing and signed by or on behalf of both NGC and
the User. NGC and the User shall effect any amendment required to
be made to this Supplemental Agreement by the Director as a
result of a change in the Transmission Licence or an order or
directions made pursuant to the Act or a Licence or as a result
of settling any of the terms hereof and the User hereby
authorises and instructs NGC to make any such amendment on its
behalf and undertakes not to, withdraw, qualify or revoke such
authority or instruction at any time.
IN WITNESS WHEREOF the hands of the duly authorised
representatives of the parties hereto at the date first above
written
THE NATIONAL GRID COMPANY PLC )
By )
[the USER] )
By )
APPENDIX A
SITE OF CONNECTION
COMPANY
SITE OF CONNECTION :
OWNER/OPERATOR OF DISTRIBUTION SYSTEM:
TYPE:
APPENDIX B
(NOT USED)
APPENDIX C
ZONE/REGISTERED CAPACITY/ PEAK HALF-HOURS/ESTIMATED DEMAND
COMPANY :
GRID SUPPLY POINT/
CONNECTION SITE:
ELECTRICAL LOCATION OF ENERGY METERING
EQUIPMENT MEASURING STATION DEMAND:
ZONE:
a. GENERATION:
SET TYPE/FUEL REGISTERED CAPACITY MW
b. In the Financial Year 1st April 1990 to 31st March 1991 NGC's
Demand related Use of System charges shall be calculated by
reference to the Demand attributable to the User at the Grid
Supply Point identified above in relation to the 3 half-hours of
peak Demand (Active Power) occurring on the 3 days of peak Demand
(Active Power) which occur in the period from 1st November 1990
to 28th February 1991 and are at least 10 days apart.
c. In the Financial Year 1st April 1990 to 31st March 1991 NGC's
generation related Use of System Charges shall be calculated by
reference to the highest Registered Capacity during such
Financial Year and the Energy produced.
d. ESTIMATED DEMAND for the period between I April 1990 and 31st
March 1991 and thereafter as notified in accordance with the
Charging Rules.
_________________ MW
APPENDIX D
USE OF SYSTEM CHARGES/PAYMENT
COMPANY :
LOCATION :
1) TYPE OF CHARGE: SYSTEM SERVICE
Demand related
Pounds in respect of the period from 1st April
1990 to 31st March 1991 payable in 12 equal monthly instalments
subject to adjustment in accordance with the Charging Rules.
Note: based upon a charge of pounds per KW and KW of Estimated
Demand as set out in Appendix C.
2) TYPE OF CHARGE: INFRASTRUCTURE
A. Demand related
Pounds in respect of the period from 1st April
1990 to 31st March 1991 payable in 12 equal monthly instalments
subject to adjustment in accordance with the Charging Rules.
Note: based upon a charge of pounds per KW and KW of Estimated
Demand as set out
in Appendix C.
B. Capacity Related
Pounds in respect of the period from 1st April 1990 to 31st March
1991 payable in 12 equal monthly instalments subject to
adjustment in accordance with the Charging Rules based upon a
charge of pounds per KW Registered Capacity and .... KW being the
Registered Capacity as set out in Appendix C.
C. Energy Related
pounds per KWh in respect of each KWh of Energy entering the Total
System in the period from 31st March 1990 to 31st March 1991
payable as described in Clause 14 of the Master Agreement.
Payment shall be made in accordance with Clause 14 of the Master
Agreement.
APPENDIX E
CHARGING RULES
1. Use of System Charges - General and Data Requirements
1.1 NGC's Demand related Use of System Charges are calculated by
reference to Demand (Active Power) attributable to each Grid
Supply Point excluding that Demand (Active Power) met by embedded
Generating Units which is to be paid for otherwise than pursuant
to the Pooling and Settlement Agreement.
1.2 Data Requirements
1.2.1 On or before 31st December in each Financial Year the User
shall supply NGC with such data as NGC may from time to time
reasonably request to enable NGC to calculate the Connection
Charges and/or Use of System Charges due from the User to NGC in
respect of the Connection Site including the data specified in
Appendix C.
1.2.2 On or before 31st December in each Financial Year,
(i) Users who are Public Electricity Suppliers shall supply to
NGC a forecast for the following Financial Year of the
following:-
(a) the Natural Demand attributable to each Grid Supply Point
equal to the average of the forecasts of Natural Demand under
Annual Average Cold Spell (ACS) Conditions attributable to such
Grid Supply Point for each of a number of peak half-hours as
notified by NGC to the User under paragraph 2.1 of this Appendix
E; and
(b) the PES Supply Business Demand attributable to each Grid
Supply Point equal to the average of the forecasts of PES Supply
Business Demand under Annual Average Cold Spell (ACS) Conditions
attributable to such Grid Supply Point for each of a number of
peak half-hours as notified by NGC to the User under paragraph
2.1 of this Appendix E.
(ii) Users who are Second Tier Suppliers shall supply to NGC a
forecast for the following Financial Year of the STS Demand under
Annual Average Cold Spell (ACS) Conditions attributable to each
Grid Supply Point equal to the average of the forecasts of STS
Demand attributable to such Grid Supply Point for each of a
number of peak half-hours as notified by NGC to the User under
paragraph 2.1 of this Appendix E.
(iii) Users who are Generators shall supply to NGC a forecast
for the following Financial Year of the Station Demand (Active
Power) under Annual Average Cold Spell (ACS) Conditions
attributable to each Grid Supply Point equal to the average of
the forecasts of such Station Demand (Active Power) attributable
to such Grid Supply Point for each of a number of peak half-hours
as notified by NGC to the User under paragraph 2.1 of this
Appendix E.
1.3 Annual Adjustment
1.3.1 NGC's Demand related Use of System Charges shall be
calculated on the basis of actual Demand (Active Power)
attributable to each User at each Grid Supply Point for each of a
number of peak half hours as notified by NGC to the User under
paragraph 2.1 of this Appendix E.
1.3.2 On or before 1st March each Financial Year NGC shall:-
(i) determine from meter readings of Energy Metering Equipment
the actual Demand (Active Power) attributable to each User at
each Grid Supply Point for each of the Number of Peak Half Hours
applicable during such Financial Year; and
(ii) shall compare the User's highest Registered Capacity during
such year with the Registered Capacity used when estimating the
charges due during such Financial Year;
1.3.3 NGC shall then promptly calculate on the basis of the
actual position determined in accordance with paragraph 1.3.2 the
amount of Demand related or Capacity related Use of System
Charges (as the case may be) that would have been payable by the
User under this Supplemental Agreement during each month during
that Financial Year if they had been calculated on the basis of
that of the actual position (the "Actual Amount"). NGC shall then
compare the Actual Amount with the amount of Demand related or
Capacity related Use of System Charges (as the case may be) paid
during each month during that Financial Year by the User under
this Supplemental Agreement (the "Notional Amount").
1.3.4 NGC shall then prepare a reconciliation statement and send
it to the User. Such statement shall specify the Actual Amount
and the Notional Amount for each month during the relevant
Financial Year and, in reasonable detail, the information from
which such amounts were derived and the way in which they were
calculated.
1.3.5 Together with the reconciliation statement NGC shall send
the User an invoice in relation to any sums shown by the
reconciliation statement to be due to NGC and interest thereon
calculated pursuant to paragraph 1.3.6 below. Forthwith following
receipt of any reconciliation statement the User shall send to
NGC an invoice in relation to any sum shown by the reconciliation
statement to be due to the User and interest thereon calculated
pursuant to paragraph 1.3.6 below. Such invoices shall be payable
on or before 31st March in such Financial Year.
1.3.6 In respect of each month during that Financial Year: -
(a) the User shall, following receipt of an appropriate invoice,
pay to NGC an amount equal to the amount (if any) by which the
Actual Amount exceeds the Notional Amount; and
(b) NGC shall, following receipt of an appropriate invoice,
repay to the User an amount equal to the amount (if any) by which
the Notional Amount exceeds the Actual Amount.
Interest shall be payable by the paying Party to the other on
such amounts from the Payment Date applicable to the month
concerned until the date of actual payment of such amounts (which
shall not be later than 31st March in such Financial Year). Such
interest shall be calculated on a daily basis at the rate equal
to the base rate of Barclays Bank PLC for the time being and from
time to time during such period.
2. Revision of Charges
2.1 To the extent permitted by the Transmission Licence NGC may
revise its Connection Charges and Use of System Charges or the
basis of their calculation including issuing revisions to
Appendices B, C and D hereto. On or before 31st October in each
Financial Year NGC shall notify the User of the intended basis of
calculation to be used by NGC in the following Financial Year
(including the number and timing of peak half-hours if any to be
used when calculating Demand related infrastructure charges) and
shall consult with the User concerning the same. On or before
30th November in each Financial Year NGC shall confirm to the
User the basis of calculation to be used in the following
Financial Year. NGC shall give the User not less than 2 months
prior written notice of any revised charges, including revisions
to Appendices B, C and D hereto, which notice shall specify the
date upon which such revisions become effective (which may be at
any time). The User shall pay any such revised charges and
Appendix B, C and/or D as appropriate shall be amended
automatically (and a copy sent to the User) to reflect any
changes to such Appendices with effect from the date specified in
such notice.
2.2 The User acknowledges that NGC will establish a new asset
register during the course of the Financial Year ending 31st
March 1991. As a result, NGC shall have the right to vary the
asset allocation reflected in Appendix A upon giving not less
than 2 months prior written notice to the User provided that:
(a) NGC has first consulted the User in advance in good faith,
including informing the User of the nature of the reallocation
insofar as it materially affects the Connection Site and
indicating the likely implications for the User of such
reallocation; and
(b) the principles of asset allocation are those set out in the
statements required by Condition 10(2)D of the Transmission
Licence, the form of which has been approved by the Director.
Such asset reallocation shall be effective from 1st April 1991
and the provisions of Appendices A and B shall be amended
automatically (and a copy sent to the User) to reflect such
reallocation with effect from such date.
2.3 Subject to the provisions of paragraph 3.2 below if in the
reasonable opinion of NGC any development, replacement,
renovation, alteration, construction or other work to the NGC
Transmission System means that NGC needs to vary the Connection
Charges payable by the User in relation to the Connection Site
NGC shall have the right to vary such charges accordingly upon
giving to the User not less than 2 months prior written notice.
Such notice shall be deemed to be a revised Connection Offer and
before any such variation become effective the provisions of
Sub-Clauses 11.2 and 11.4 shall apply mutatis mutandis. Following
any such variation the provisions of Appendices A and B shall be
amended automatically (and a copy sent to the User) to reflect
such variation with effect from the date such variation comes
into effect.
3. RepIacement of NGC Assets
3.1 Appendix A specifies the age of each of the NGC Assets at
the Connection Site at the date of this Supplemental Agreement.
NGC Connection Charges and Use of System Charges are calculated
on the assumption that NGC Assets will not require replacement
until the expiry of the Replacement Period applicable to each NGC
Asset concerned. Such Replacement Periods have been agreed
between NGC and the User. For the avoidance of doubt, they have
been prepared for accounting purposes and carry no implication
that they represent the actual useful lives of such assets.
3.2 Where in NGC's reasonable opinion an NGC Asset requires
replacement before the expiry of its Replacement Period NGC
shall, with the prior written approval of the User (except where
in NGC's reasonable opinion such replacement is necessary, in
which case such approval shall not be required but in such case
the User shall have the right to give notice to Disconnect) have
the right to replace the NGC Asset at no additional cost to the
User until expiry of its original Replacement Period. Upon the
expiry of such original Replacement Period NGC shall be entitled
to vary the Connection Charges in respect of the replaced NGC
Asset so that they are calculated on the basis of the then
current Net Asset Value of such NGC Assets. NGC shall give the
User not less than 2 months prior written notice of such varied
charges which notice shall specify the date upon which such
increase becomes effective. The User shall pay such varied
charges and Appendices A and B shall be amended automatically
(and a copy sent to the User) to reflect such revised charges
with effect from the date specified in such notice.
3.3 Upon the expiry of the Replacement Period of any NGC Asset,
NGC shall replace such NGC Asset if requested to do so by the
User or if in NGC's reasonable opinion it is necessary to do so
to enable NGC to comply with its Licence obligations. Unless so
replaced, NGC shall keep the NGC Asset in service. In the event
that it is left in service the User shall pay Connection Charges
in respect of such NGC Asset calculated by reference to Net Asset
Value derived from a revaluation of the asset by NGC (which in
the reasonable opinion of NGC, taking into account the
depreciation already paid over the lifetime of that asset,
reflects the then expected life expectancy of the asset plus
capitalised renovation or refurbishment costs). Upon any such
replacement NGC shall be entitled to vary the Connection Charges
in respect of the replaced NGC Asset so that they are calculated
on the basis of the then current Net Asset Value of such NGC
Asset. NGC shall give the User not less than 2 months prior
written notice of such varied charges which notice shall specify
the date upon which such increase becomes effective. The User
shall pay such varied charges and Appendices B and D shall be
amended automatically (and a copy sent to the User) to reflect
such revised charges with effect from the date notified to the
User by NGC.
4. Termination Amounts
4.1 Until the end of the Financial Year in which the termination
occurs the User shall pay to NGC the Connection Charges and Use
of System Charges for which the User is liable in full. Where the
User has a Connection Site the User shall at the end of such
Financial Year pay to NGC a sum equal to the following:-
(i) the then current Net Asset Value of the NGC Assets at the
Connection Site in question; and
(ii) a sum equal to the reasonable cost of removing such NGC
Assets.
4.2 Where a Termination Amount is paid to NGC under this
Agreement and subsequently NGC uses the NGC Assets at the same or
another Connection Site and renders and receives a Connection
Charge therefor NGC shall pay to the User the Net Asset Value
component of the Termination Amount less reasonable maintenance
and storage costs. NGC shall use its reasonable endeavours to
re-use such NGC Assets where it is economic to do so. Upon
request and at the cost of the User, NGC shall issue a
certificate no more frequently than once each calendar year
indicating whether or not such NGC Assets have or have not been
so re-used.
5. Variation of Charges by NGC during the Financial Year
If NGC is notified of a reduced Demand forecast by a PES or STS
from the forecast submitted under paragraph 1.2 of this Appendix
and is also notified of a corresponding increase in such a Demand
forecast by another PES or STS NGC shall vary the Use of System
charges due from the User notifying the reduction such that the
charges payable reflect the revised forecast within 30 days of
receipt of the 2 notices. NGC shall vary or commence charging as
the case may be the Use of System charges due from the User
notifying the increase with effect from the date that the
increase becomes effective. Save where NGC receives 2
corresponding notifications there shall unless NGC decides
otherwise be no variation of charges downwards during the
Financial Year to cover this eventuality and reconciliation shall
be effected pursuant to paragraph 1.3 of this Appendix.
6. Deductions
In respect of any NGC Engineering Charges which have been paid by
the User in connection with a Connection Application or under
Sub-Clause 2.3 of the Supplemental Agreement Type 2 NGC shall
reduce the amount of Connection Charges payable by the User in
relation to the respective Connection Site on 1st April in each
of the first 3 years of the payment of such Connection Charges by
an amount equal on each occasion to one third of such NGC
Engineering Charges.
APPENDIX F1
SITE SPECIFIC TECHNICAL CONDITIONS
Agreed Ancillarv Services
[Black Start Capability
Gas Turbine Unit Fast Start
Synchronous Compensation
Pumped Storage Unit Spinning-in-Air
Pumped Storage
Pumped Storage Plant Fast Start from Standstill
Demand Reduction
Adjustment to Pumped Storage Unit Pumping Programme
Hot Standby]
APPENDIX F2
(NOT USED)
APPENDIX F3
SITE SPECIFIC TECHNICAL CONDITIONS
Special Automatic Facilities
(a) NGC Transmission System to Generating Unit Intertripping
schemes.
(b) NGC Transmission System to Demand Intertripping schemes.
(c) NGC Transmission System to Directly Connected Customers
Intertripping Schemes
(d) Auto open/close schemes.
(e) System splitting or islanding schemes which impact on the
Users system or plant.
APPENDIX F4
SITE SPECIFIC TECHNICAL CONDITIONS
Metering
1.1 Operator
Where the Connection Site is a Grid Supply Point, and the User is
or will be Registrant in relation to the Energy Metering
Equipment required by the Pooling and Settlement Agreement at the
Grid Supply Point and/or at the bulk supply point(s) which are
related to that Grid Supply Point, NGC shall install and be the
Operator of all such Energy Metering Equipment from the Transfer
Date until the FMS Date and thereafter:-
1.1.1 NGC may resign as Operator of such Energy Metering
Equipment on giving no less than 12 months' notice in writing;
and
1.1.2 the User may remove NGC as Operator upon giving no less
than 12 months' notice in writing.
Provided that where the User agrees to become owner of any such
Energy Metering Equipment NGC may resign as Operator upon such
transfer of ownership and shall agree such terms as shall be
reasonably necessary to enable the User to perform its
obligations as Operator of such Energy Metering Equipment.
1.2 Charges
NGC shall recover its charges for acting as Operator of any
Energy Metering System which is an NGC Asset charged for under
this Supplemental Agreement as part of such charges. Where NGC
acts as Operator of any other Energy Metering System owned by NGC
for which the User is Registrant NGC shall charge and the User
shall pay such amount which is reasonable in all the
circumstances.
1.3 Interference
The User shall ensure that its employees, agents and invitees
will not interfere with any Energy Metering Equipment in respect
of which NGC is Operator or the connections to such Energy
Metering Equipment, without the prior written consent of NGC
(except to the extent that emergency action has to be taken to
protect the health and safety of persons or to prevent serious
damage to property proximate to the Energy Metering Equipment or
to the extent that such action is authorised under the Master
Agreement or any other agreement between NGC and the User).
1.4 Pulse data
The User shall have the right to collect and record pulses from
the meters comprised in the Energy Metering System(s) at the
Connection Site. NGC shall give the User access in accordance
with the Interface Agreement to collect and record such pulses
and to install and maintain such lines and equipment as maybe
reasonably necessary therefor.
EXHIBIT 4
DATED 19
THE NATIONAL GRID COMPANY PLC ( 1 )
and
1
[ ] (2)
_____________________________________
SUPPLEMENTAL AGREEMENT TYPE 4
______________________________________
(for Generators with Embedded Generating Plant or
with Embedded Small Independent Generating Plant
and who are acting in that capacity and who are passing
power on to a Distribution System through a
connection with a Distribution System which has not been
Commissioned at the Transfer Date)
CONTENTS
Clause Title
1 Definitions, Interpretation, Construction
2 Approval to become Operational
3 The Site of connection to the Distribution System
4 Use of System Charges
5 Charging Rules
6 Ancillary Services
7 (Clause deleted)
8 Other Site Specific Technical Conditions
9 Metering
10 Joint System Incidents
11 Term
12 Emergency Deenergisation
13 Deenergisation and Disconnection
14 Notice to Decommission or Disconnect
15 Disconnection
16 Decommissioning
17 Master Agreement
18 Variations
Appendix A Connection Site
Appendix B
Appendix C Zone/Registered Capacity/Peak Half-Hours/Estimated Demand
Appendix D Use of System Charges/Payment
Appendix E Charging Rules
Appendix F1 Site Specific Technical Conditions - Ancillary Services
Appendix F2 (Not used)
Appendix F3 Site Specific Technical Conditions - Special Automatic Facilities
Appendix F4 Site Specific Technical Conditions - Other
Appendix F5 Site Specific Technical Conditions - Metering
THIS SUPPLEMENTAL AGREEMENT is made the day of 19
BETWEEN
(1) THE NATIONAL GRID COMPANY PLC a company registered in England
with number 2366977 whose registered office is at National Grid
House, Sumner Street, London SE 1 9JU ("NGC", which expression
shall include its successors and/or permitted assigns); and
(2) [ ] a company registered in [ ] with number [ ] whose
registered office is at [ ] (the "User"; which expression shall
include its successors and/or permitted assigns)
WHEREAS
(A) NGC and the User are parties to Master Connection and Use of
System Agreement dated [ ] ("Master Agreement").
(B) This Supplemental Agreement is entered into pursuant to the
terms of the Master Agreement and shall be read as being governed
by them.
NOW IT IS HEREBY AGREED as follows: -
1. DEFINITIONS, INTERPRETATION AND CONSTRUCTION
1.1 General
Unless the subject matter or context otherwise requires or is
inconsistent therewith terms and expressions defined in Schedule
2 to the Master Agreement have the same meanings, interpretations
or constructions in this Supplemental Agreement.
2. APPROVAL TO BECOME OPERATIONAL
Not later than [ ] or by such other times as may be agreed
between the Parties each Party shall submit to the other:
(i) data within its possession needed to enable the completion
of Appendix F3
(ii) evidence reasonably satisfactory to NGC that the Users
Equipment complies or will on Completion comply with the
provisions of Clauses 6, 8 and 9.
2.2 Not later than [ ] or by such other time as may be agreed
between the Parties each Party shall submit to the other: -
(i) information to enable preparation of Site Responsibility
Schedules complying with the provisions of Appendix 1 ] to the
Connection Conditions together with a list of managers who have
been duly authorised by the User to sign such Site Responsibility
Schedules on the User's behalf;
(ii) a list of Safety Coordinators pursuant to Operating Code 8
and a list of telephone numbers for Joint System Incidents at
which senior management representatives nominated for the purpose
can be contacted; and
(iii) a list of telephone numbers for the facsimile machines
referred to in CC 6.5.8.
2.3 Not later than [ ] or by such other time as may be agreed
between the Parties the User shall submit to NGC a statement of
readiness to complete the Commissioning Programme, together with
Connected Planning Code Data and a report certifying to NGC that,
to the best of the information, knowledge and belief of the User,
all relevant Connection Conditions applicable to the User have
been considered and that to the best of the information,
knowledge and belief of the User Connection Conditions CC 6 have
been complied with. If NGC considers that it is necessary, it
will require this report to be prepared by the Independent
Engineer at NGC's sole cost and expense. The report shall
incorporate if requested by NGC type test reports and test
certificates produced by the manufacturer showing that the User's
Equipment meets the criteria specified in CC. 6.
2.4 Upon compliance by the User with the provisions of
Sub-Clauses 2.1, 2.2 and 2.3 NGC shall forthwith notify the User
in writing that it has the right to become Operational.
2.5 Right to use the NGC Transmission System
Subject to the other provisions of this Agreement including the
provisions of the Grid Code, the User may transmit supplies of
power on to and/or take supplies of power from the NGC
Transmission System as the case may be.
2.6 Registered Capacity
The User if a Generator shall not operate its User's Equipment
such that any of it exceeds its Registered Capacity save as
expressly permitted and instructed pursuant to the Grid Code or
the Fuel Security Code or as may be necessary or expedient in
accordance with Good Industry Practice.
2.7 Data
Data of a technical or operational nature collected recorded or
otherwise generated pursuant to this Supplemental Agreement shall
be deemed data lodged pursuant to the Grid Code to the extent
that the Grid Code makes provision therefor.
2.8 Subject to the provisions of this Agreement and the Grid
Code, NGC shall accept into the NGC Transmission System Active
Power generated by the User up to the Maximum Export Capacity
except to the extent (if any) that NGC is prevented from doing so
by transmission constraints which could not be avoided by the
exercise of Good Industry Practice by NGC.
2.9 Subject to the provisions of the Grid Code each Party shall
be entitled to plan and execute outages of parts of its System or
Plant or Apparatus at any time and from time to time.
3. THE SITE OF CONNECTION TO THE DISTRIBUTION SYSTEM
The site of connection to the Distribution System to which this
Supplemental Agreement relates is more particularly described in
Appendix A.
4. USE OF SYSTEM CHARGES
Subject to the provisions of Clause 5 of this Supplemental
Agreement the User shall with effect from the Charging Date pay
to NGC the Use of System Charges set out in Appendix D payable in
accordance with the provisions of Appendix E.
5. CHARGING RULES
The provisions of the Charging Rules set out in Appendix E to
this Supplemental Agreement shall apply.
6. ANCILLARY SERVICES
The User shall provide the Agreed Ancillary Services set out in
Appendix Fl in accordance with the Grid Code.
7. GRID CODE NON-COMPLIANCE
(Clause deleted)
8. OTHER SITE SPECIFIC TECHNICAL CONDITIONS
8.1 NGC and the User shall operate respectively the NGC
Transmission System and the User System with the special
automatic facilities and schemes set out in Appendix F3.
8.2 The User shall ensure that on the Completion Date the User's
Equipment complies with the site specific technical conditions
set out in Appendix F4.
8.3 The User shall use all reasonable endeavours to ensure
during the period of this Supplemental Agreement that the User's
Equipment shall continue to comply with the site specific
technical conditions set out in Appendix F5.
8.4 If the User or NGC wishes to modify, alter or otherwise
change the site specific technical conditions or the manner of
their operation under Appendix F1, F2, F3, F4 or F5 this shall be
deemed to be a Modification for the purposes of the Master
Agreement.
9. METERING.
The provisions of Appendix F5 shall have effect.
10. JOINT SYSTEM INCIDENTS
Each Party confirms to the other that its Senior Management
Representatives whose names have been nominated and notified to
the other pursuant to OC9 are fully authorised to make binding
decisions on its behalf for the purposes of OC9.
11. TERM
Subject to the provisions for earlier termination set out herein
and in Clause 17 of the Master Agreement, this Supplemental
Agreement shall continue until the User's Equipment is
Disconnected from the PES Distribution System in accordance with
Clause 13 or 15 hereof.
12. EMERGENCY DEENERGISATION
12.1 Emergency Deenergisation requested by NGC:
If, in the reasonable opinion of NGC, the condition or manner of
operation of the NGC Transmission System or the User's System
poses an immediate threat of injury or material damage to any
person or to the Total System or to any User's System or to the
NGC Transmission System, NGC shall have the right to request the
owner of the Distribution System to which the User is connected
to Deenergise the User's Equipment, if it is necessary or
expedient to do so to avoid the occurrence of such injury or
damage.
12.2 Emergency Deenergisation by a User:
If, in the reasonable opinion of the User, the condition or
manner of operation of the NGC Transmission System, the Total
System or any other User's System, poses an immediate threat of
injury or material damage to any person or to the User's System
the User shall have the right to Deenergise the User's Equipment,
if it is necessary or expedient to do so to avoid the occurrence
of such injury or damage.
12.3 Reenergisation:
The User's Equipment at the Connection Site shall be Re Energised
as quickly as practicable after the circumstances leading to any
Deenergisation under this Clause 12 have ceased to exist.
13. DEENERGISATION AND DISCONNECTION
13.1 Breach by the User:
If the User shall be in breach of any of the provisions of this
Supplemental Agreement or of the provisions of the Master
Agreement enforcing the provisions of the Grid Code (but subject
always to Sub-Clauses 9.3 and 9.4 of the Master Agreement) and
such breach causes or can reasonably be expected to cause a
material adverse effect on the business or condition of NGC or
other Users or the NGC Transmission System or Users Systems then
NGC may: -
(i) where the breach is capable of remedy, give written notice
to the User specifying in reasonable detail the nature of the
breach and requiring the User within 28 days after receipt of
such notice to remedy the breach or within any longer period
agreed between NGC and the User, the agreement of NGC not to be
unreasonably withheld or delayed; or
(ii) where the breach is incapable of remedy, give written
notice to the User specifying in reasonable detail the nature of
the breach and the reasons why the breach is incapable of remedy
and requiring the User within 5 Business Days after receipt of
such notice to undertake to NGC not to repeat the breach.
13.2 Grid Code Procedures
Whenever NGC serves a notice on the User pursuant to Sub-Clause
13.1, NGC and the User shall discuss in good faith and without
delay the nature of the breach and each shall use all appropriate
procedures available to it under the Grid Code (including testing
rights and the procedures set out in OC5 Testing and Monitoring)
in an attempt to establish as quickly as reasonably practicable a
mutually acceptable way of ensuring future compliance by the User
with the relevant provision of the Grid Code.
13.3 De-Energisation
13.3.1 If:-
(a) the User fails to comply with the terms of any valid notice
served on it by NGC in accordance with Sub Clause 13.1(i) or is
in breach of any undertaking given in accordance with Sub-Clause
13.1(ii) and such breach causes or can be reasonably expected to
cause a material adverse effect on the business or condition of
NGC or other Users or the NGC Transmission System or User
Systems; or
(b) five Business Days have elapsed since the date of any valid
notice served on the User in accordance with Sub-Clause 13.2(ii)
and no undertaking is given by the User in accordance with
Sub-Clause 13.2(ii);
NGC may, provided NGC has if appropriate first complied with OC5
Testing and Monitoring request the owner of the Distribution
System to which the User is connected to De-Energise the User's
Equipment upon the expiry of at least 48 hours prior written
notice to the User, provided that at the time of expiry of such
notice the breach concerned remains unremedied and that neither
Party has referred the matter to the Dispute Resolution Procedure
set out in Clause 27 of the Master Agreement. In such event NGC
may request the owner of the Distribution System to which the
User is connected to De-Energise forthwith following completion
of the Dispute Resolution Procedure and final determination of
the dispute in NGC's favour.
13.3.2 If the User fails to comply with the Grid Code and the
Director makes a final order or a confirmed provisional order as
set out in Sections 25 and 26 of the Act against the User in
respect of such non-compliance which order the User breaches NGC
may request to the owner of the Distribution System to which the
User is connected to De-Energise the User's Equipment upon the
expiry of at least 48 hours prior written notice to the User
provided that at the time of expiry of the notice the User fails
to comply with the notice.
13.4 NGC Transmission Licence
If a breach of the nature referred to in Sub-Clause 13.1
continues to the extent that it places or seriously threatens to
place in the immediate future NGC in breach of the NGC
Transmission Licence, NGC may request the owner of the
Distribution System to which the User is connected to De Energise
the User's Equipment upon the expiry of at least 12 hours prior
written notice to the User, provided that at the time of expiry
of such notice the breach concerned remains unremedied.
13.5 Re- Energisation Disputes
If, following any De-Energisation pursuant to this Clause 13, the
User applies to NGC for NGC to issue instructions that the User's
Equipment should be Re-Energised and is refused or is offered
terms which the User does not accept, this shall be recognised as
a dispute over the terms for connection and use of system which
the User may refer to the Director for determination under the
NGC Transmission Licence. If the User accepts any terms offered
by NGC or settled by the Director pursuant to any such reference,
NGC shall request the owner of the Distribution System to which
the User is connected to Re-Energise the User's Equipment
forthwith after any request from the User for NGC to do so.
13.6 Event of Default
If the breach which led to any De-Energisation pursuant to this
Clause 13 remains unremedied at the expiry of at least 6 months
after the date of such De-Energisation, NGC may declare by notice
in writing to the User that such breach has become an event of
default provided that: -
(a) all disputes arising out of the subject-matter to this
Clause 13 which are referred to the Dispute Resolution Procedure
have then been finally determined in favour of NGC; and
(b) any reference to the Director pursuant to sub-clause 13.5
has then been finally determined in favour of NGC or any terms
settled by the Director pursuant to such application have not
been accepted by the User.
13.7 Disconnection
Once NGC has given a valid notice of an event of default pursuant
to Sub-Clause 13.6 NGC may give notice of termination to that
User whereupon this Supplemental Agreement shall terminate and:
(i) NGC shall request the owner of the Distribution System to
which the User is connected to Disconnect all the User's
Equipment at the Connection Site; and
(ii) that User shall be obliged to pay to NGC forthwith the Use
of System Charges due hereunder up to the end of the Financial
Year in which Termination occurs.
14. NOTICE TO DECOMMISSION OR DISCONNECT
Without prejudice to Sub-Clause 12.2 the User shall give to NGC
not less than 6 months written notice of any intention of the
User either to Decommission the User's Equipment or to Disconnect
the User's Equipment.
15. DISCONNECTION
If notice to Disconnect is given by the User under Clause 14 the
User may upon expiry of the period specified in such notice and
not before Decommission the User's Equipment. At the expiry of
such period this Supplemental Agreement shall terminate. The
User shall pay to NGC all Use of System Charges due hereunder up
to the end of the Financial Year in which termination occurs
within 28 days after termination of this Agreement.
16. DECOMMISSIONING
If notice to Decommission is given by the User under Clause 14
the User may upon expiry of the period specified in such notice
and not before, Decommission the User's Equipment. This
Supplemental Agreement shall not terminate and: -
(i) until the end of the Financial Year in which the
Decommissioning takes place all Use of System Charges payable by
the User under this Supplemental Agreement shall continue to be
payable in full;
(ii) following the end of the Financial Year in which the
Decommissioning takes place the Use of System Charges payable by
the User under this Supplemental Agreement shall no longer be
payable by the User.
If and when the User wishes to recommission it shall give NGC not
less than 3 months written notice unless a shorter period is
agreed between NGC and the User.
17. MASTER AGREEMENT
The provisions of Clauses 18 to 24 and 26 to 30 inclusive of the
Master Agreement shall apply to this Supplemental Agreement as if
set out in full herein.
18. VARIATIONS
No variation to this Supplemental Agreement shall be effective
unless made in writing and signed by or on behalf of both NGC and
the User. NGC and the User shall effect any amendment required to
be made to this Supplemental Agreement by the Director as a
result of a change in the Transmission Licence or an order or
directions made pursuant to the Act or a Licence or as a result
of setting any of the terms hereof and the User hereby authorises
and instructs NGC to make any such amendment on its behalf and
undertakes not to, withdraw, qualify or revoke such authority or
instruction at any time.
IN WITNESS WHEREOF the hands of the duly authorised
representatives of the parties hereto at the date first above
written
THE NATIONAL GRID COMPANY PLC )
By )
[the USER] )
By )
APPENDIX A
SITE OF CONNECTION
COMPANY:
SITE OF CONNECTION:
OWNER/OPERATOR OF DISTRIBUTION SYSTEM:
TYPE:
APPENDIX B
(NOT USED)
APPENDIX C
ZONE/REGISTERED CAPACITY/PEAK HALF-HOURS/ESTIMATED DEMAND
COMPANY:
GRID SUPPLY POINT/
CONNECTION SITE:
ELECTRICAL LOCATION OF ENERGY METERING EQUIPMENT MEASURING
STATION DEMAND:
ZONE:
a. GENERATION:
SET TYPE/FUEL REGISTERED
CAPACITY MW
b.. In the Financial Year 1st April 1990-to 31st March 1991
NGC's Demand related Use of System charges shall be calculated by
reference to the Demand attributable to the User at the Grid
Supply Point identified above in relation to the 3 half-hours of
peak Demand (Active Power) occurring on the 3 days of peak Demand
(Active Power) which occur in the period from 1st November 1990
to 28th February 1991 and are at least 10 days apart.
c. In the Financial Year 1st April 1990 to 31st March 1991 NGC's
generation related Use of System Charges shall be calculated by
reference to the highest Registered Capacity during such
Financial Year and the Energy produced.
d. ESTIMATED DEMAND for the period between 1 April 1990 and 31st
March 1991 and thereafter as notified in accordance with the
Charging Rules.
________________MW
APPENDIX D
USE OF SYSTEM CHARGES/PAYMENT
COMPANY :
LOCATION :
1) TYPE OF CHARGE: SYSTEM SERVICE
Demand related
Pounds.......... in respect of the period from 1st April 1990 to
31st March 1991 payable in 12 equal monthly instalments subject
to adjustment in accordance with the Charging Rules.
Note: based upon a charge of pound per KW and ..........KW of
Estimated Demand as set out in Appendix C.
2) TYPE OF CHARGE: INFRASTRUCTURE
A. Demand related
Pound..............in respect of the period from 1st April 1990 to
31st March 1991 payable in 12 equal monthly instalments subject
to adjustment in accordance with the Charging Rules.
Note: based upon a charge of pound per KW and .............KW of
Estimated Demand as set out
in Appendix C.
B. Capacity Related
Pound........... in respect of the period from 1st April 1990 to 31st
March 1991 payable in 12 equal monthly instalments subject to
adjustment in accordance with the Charging Rules based upon a
charge of pound......... per KW Registered Capacity and
..............KW being the Registered Capacity as set out in
Appendix C.
C. Energy Related
Pound............. per KWh in respect of each KWh of Energy entering
the Total System in the period from 31st March 1990 to 31st March
1991 payable as described in Clause 14 of the Master Agreement.
Payment shall be made in accordance with Clause 14 of the Master
Agreement.
APPENDIX E
CHARGING RULES
1. Use of System Charges - General and Data Requirements
1.1 NGC's Demand related Use of System Charges are calculated by
reference to Demand (Active Power) attributable to each Grid
Supply Point excluding that Demand (Active Power) met by embedded
Generating Units which is to be paid for otherwise than pursuant
to the Pooling and Settlement Agreement.
1.2 Data Requirements
1.2.1 On or before 31st December in each Financial Year the User
shall supply NGC with such data as NGC may from time to time
reasonably request to enable NGC to calculate the Connection
Charges and/or Use of System Charges due from the User to NGC in
respect of the Connection Site including the data specified in
Appendix C.
1.2.2 On or before 31st December in each Financial Year,
(i) Users who are Public Electricity Suppliers shall supply to
NGC a forecast for the following Financial Year of the following:
- -
(a) the Natural Demand attributable to each Grid Supply Point
equal to the average of the forecasts of Natural Demand under
Annual Average Cold Spell (ACS) Conditions attributable to such
Grid Supply Point for each of a number of peak half-hours as
notified by NGC to the User under paragraph 2.1 of this Appendix
E; and
(b) the PES Supply Business Demand attributable to each Grid
Supply Point equal to the average of the forecasts of PES Supply
Business Demand under Annual Average Cold Spell (ACS) Conditions
attributable to such Grid Supply Point for each of a number of
peak half-hours as notified by NGC to the User under paragraph
2.1 of this Appendix E.
(ii) Users who are Second Tier Suppliers shall supply to NGC a
forecast for the following Financial Year of the STS Demand under
Annual Average Cold Spell (ACS) Conditions attributable to each
Grid Supply Point equal to the average of the forecasts of STS
Demand attributable to such Grid Supply Point for each of a
number of peak half-hours as notified by NGC to the User under
paragraph 2.1 of this Appendix E.
(iii) Users who are Generators shall supply to NGC a forecast
for the following Financial Year of the Station Demand (Active
Power) under Annual Average Cold Spell (ACS) Conditions
attributable to each Grid Supply Point equal to the average of
the forecasts of such Station Demand (Active Power) attributable
to such Grid Supply Point for each of a number of peak half-hours
as notified by NGC to the User under paragraph 2.1 of this
Appendix E.
1.3 Annual Adjustment
1.3.1 NGC's Demand related Use of System Charges shall be
calculated on the basis of actual Demand (Active Power)
attributable to each User at each Grid Supply Point for each of a
number of peak half hours as notified by NGC to the User under
paragraph 2.1 of this Appendix E.
1.3.2 On or before 1st March each Financial Year NGC shall: -
(i) determine from meter readings of Energy Metering Equipment
the actual Demand (Active Power) attributable to each User at
each Grid Supply Point for each of the Number of Peak Half Hours
applicable during such Financial Year; and
(ii) shall compare the User's highest Registered Capacity during
such year with the Registered Capacity used when estimating the
charges due during such Financial Year;
1.3.3 NGC shall then promptly calculate on the basis of the
actual position determined in accordance with paragraph 1.3.2 the
amount of Demand related or Capacity related Use of System
Charges (as the case may be) that would have been payable by the
User under this Supplemental Agreement during each month during
that Financial Year if they had been calculated on the basis of
that of the actual position (the "Actual Amount"). NGC shall then
compare the Actual Amount with the amount of Demand related or
Capacity related Use of System Charges (as the case may be) paid
during each month during that Financial Year by the User under
this Supplemental Agreement (the "Notional Amount").
1.3.4 NGC shall then prepare a reconciliation statement and send
it to the User. Such statement shall specify the Actual Amount
and the Notional Amount for each month during the relevant
Financial Year and, in reasonable detail, the information from
which such amounts were derived and the way in which they were
calculated.
1.3.5 Together with the reconciliation statement NGC shall send
the User an invoice in relation to any sums shown by the
reconciliation statement to be due to NGC and interest thereon
calculated pursuant to paragraph 1.3.6 below. Forthwith following
receipt of any reconciliation statement the User shall send to
NGC an invoice in relation to any sum shown by the reconciliation
statement to be due to the User and interest thereon calculated
pursuant to paragraph 1.3.6 below. Such invoices shall be payable
on or before 31st March in such Financial Year.
1.3.6 In respect of each month during that Financial Year:-
(a) the User shall, following receipt of an appropriate invoice,
pay to NGC an amount equal to the amount (if any) by which the
Actual Amount exceeds the Notional Amount; and
(b) NGC shall, following receipt of an appropriate invoice, repay
to the User an amount equal to the amount (if any) by which the
Notional Amount exceeds the Actual Amount.
Interest shall be payable by the paying Party to the other on
such amounts from the Payment Date applicable to the month
concerned until the date of actual payment of such amounts (which
shall not be later than 31st March in such Financial Year). Such
interest shall be calculated on a daily basis at the rate equal
to the base rate of Barclays Bank PLC for the time being and from
time to time during such period.
2. Revision of Charges
2.1 To the extent permitted by the Transmission Licence NGC may
revise its Connection Charges and Use of System Charges or the
basis of their calculation including issuing revisions to
Appendices B, C and D hereto. On or before 31st October in each
Financial Year NGC shall notify the User of the intended basis of
calculation to be used by NGC in the following Financial Year
(including the number and timing of peak half-hours if any to be
used when calculating Demand related infrastructure charges) and
shall consult with the User concerning the same. On or before
30th November in each Financial Year NGC shall confirm to the
User the basis of calculation to be used in the following
Financial Year. NGC shall give the User not less than 2 months
prior written notice of any revised charges, including revisions
to Appendices B, C and D hereto, which notice shall specify the
date upon which such revisions become effective (which may be at
any time). The User shall pay any such revised charges and
Appendix B, C and/or D as appropriate shall be amended
automatically (and a copy sent to the User) to reflect any
changes to such Appendices with effect from the date specified in
such notice.
2.2 The User acknowledges that NGC will establish a new asset
register during the course of the Financial Year ending 31st
March 1991. As a result, NGC shall have the right to vary the
asset allocation reflected in Appendix A upon giving not less
than 2 months prior written notice to the User provided that: -
(a) NGC has first consulted the User in advance in good faith,
including informing the User of the nature of the reallocation
insofar as it materially affects the Connection Site and
indicating the likely implications for the User of such
reallocation; and
(b) the principles of asset allocation are those set out in the
statements required by Condition 10(2)D of the Transmission
Licence, the form of which has been approved by the Director.
Such asset reallocation shall be effective from 1st April 1991
and the provisions of Appendices A and B shall be amended
automatically (and a copy sent to the User) to reflect such
reallocation with effect from such date.
2.3 Subject to the provisions of paragraph 3.2 below if in the
reasonable opinion of NGC any development, replacement,
renovation, alteration, construction or other work to the NGC
Transmission System means that NGC needs to vary the Connection
Charges payable by the User in relation to the Connection Site
NGC shall have the right to vary such charges accordingly upon
giving to the User not less than 2 months prior written notice.
Such notice shall be deemed to be a revised Connection Offer and
before any such variation become effective the provisions of
Sub-Clauses 11.2 and 11.4 shall apply mutatis mutandis. Following
any such variation the provisions of Appendices A and B shall be
amended automatically (and a copy sent to the User) to reflect
such variation with effect from the date such variation comes
into effect.
3. RepIacement of NGC Assets
3.1 Appendix A specifies the age of each of the NGC Assets at
the Connection Site at the date of this Supplemental Agreement.
NGC Connection Charges and Use of System Charges are calculated
on the assumption that NGC Assets will not require replacement
until the expiry of the Replacement Period applicable to each NGC
Asset concerned. Such Replacement Periods have been agreed
between NGC and the User. For the avoidance of doubt, they have
been prepared for accounting purposes and carry no implication
that they represent the actual useful lives of such assets.
3.2 Where in NGC's reasonable opinion an NGC Asset requires
replacement before the expiry of its Replacement Period NGC
shall, with the prior written approval of the User (except where
in NGC's reasonable opinion such replacement is necessary, in
which case such approval shall not be required but in such case
the User shall have the right to give notice to Disconnect) have
the right to replace the NGC Asset at no additional cost to the
User until expiry of its original Replacement Period. Upon the
expiry of such original Replacement Period NGC shall be entitled
to vary the Connection Charges in respect of the replaced NGC
Asset so that they are calculated on the basis of the then
current Net Asset Value of such NGC Assets. NGC shall give the
User not less than 2 months prior written notice of such varied
charges which notice shall specify the date upon which such
increase becomes effective. The User shall pay such varied
charges and Appendices A and B shall be amended automatically
(and a copy sent to the User) to reflect such revised charges
with effect from the date specified in such notice.
3.3 Upon the expiry of the Replacement Period of any NGC Asset,
NGC shall replace such NGC Asset if requested to do so by the
User or if in NGC's reasonable opinion it is necessary to do so
to enable NGC to comply with its Licence obligations. Unless so
replaced, NGC shall keep the NGC Asset in service. In the event
that it is left in service the User shall pay Connection Charges
in respect of such NGC Asset calculated by reference to Net Asset
Value derived from a revaluation of the asset by NGC (which in
the reasonable opinion of NGC, taking into account the
depreciation already paid over the lifetime of that asset,
reflects the then expected life expectancy of the asset plus
capitalised renovation or refurbishment costs). Upon any such
replacement NGC shall be entitled to vary the Connection Charges
in respect of the replaced NGC Asset so that they are calculated
on the basis of the then current Net Asset Value of such NGC
Asset. NGC shall give the User not less than 2 months prior
written notice of such varied charges which notice shall specify
the date upon which such increase becomes effective. The User
shall pay such varied charges and Appendices B and D shall be
amended automatically (and a copy sent to the User) to reflect
such revised charges with effect from the date notified to the
User by NGC.
4. Termination Amounts
4.1 Until the end of the Financial Year in which the termination
occurs the User shall pay to NGC the Connection Charges and Use
of System Charges for which the User is liable in full. Where the
User has a Connection Site the User shall at the end of such
Financial Year pay to NGC a sum equal to the following:
(i) the then current Net Asset Value of the NGC Assets at the
Connection Site in question; and
(ii) a sum equal to the reasonable cost of removing such NGC
Assets.
4.2 Where a Termination Amount is paid to NGC under this
Agreement and subsequently NGC uses the NGC Assets at the same or
another Connection Site and renders and receives a Connection
Charge therefor NGC shall pay to the User the Net Asset Value
component of the Termination Amount less reasonable maintenance
and storage costs. NGC shall use its reasonable endeavours to
re-use such NGC Assets where it is economic to do so. Upon
request and at the cost of the User, NGC shall issue a
certificate no more frequently than once each calendar year
indicating whether or not such NGC Assets have or have not been
so re-used.
5. Variation of Charges by NGC during the Financial Year
If NGC is notified of a reduced Demand forecast by a PES or STS
from the forecast submitted under paragraph 1.2 of this Appendix
and is also notified of a corresponding increase in such a Demand
forecast by another PES or STS NGC shall vary the Use of System
charges due from the User notifying the reduction such that the
charges payable reflect the revised forecast within 30 days of
receipt of the 2 notices. NGC shall vary or commence charging as
the case may be the Use of System charges due from the User
notifying the increase with effect from the date that the
increase becomes effective. Save where NGC receives 2
corresponding notifications there shall unless NGC decides
otherwise be no variation of charges downwards during the
Financial Year to cover this eventuality and reconciliation shall
be effected pursuant to paragraph 1.3 of this Appendix.
6. Deductions
In respect of any NGC Engineering Charges which have been paid by
the User in connection with a Connection Application or under
Sub-Clause 2.3 of the Supplemental Agreement Type 2 NGC shall
reduce the amount of Connection Charges payable by the User in
relation to the respective Connection Site on 1st April in each
of the first 3 years of the payment of such Connection Charges by
an amount equal on each occasion to one third of such NGC
Engineering Charges.
APPENDIX F1
SITE SPECIFIC TECHNICAL CONDITIONS
Agreed Ancillarv Services
[Black Start Capability
Gas Turbine Unit Fast Start
Synchronous Compensation
Pumped Storage Unit Spinning-in-Air
Pumped Storage
Pumped Storage Plant Fast Start from Standstill
Demand Reduction
Adjustment to Pumped Storage Unit Pumping Programme
Hot Standby]
APPENDIX F2
(NOT USED)
APPENDIX F3
SITE SPECIFIC TECHNICAL CONDITIONS
Special Automatic Facilities
(a) NGC Transmission System to Generating Unit Intertripping
schemes.
(b) NGC Transmission System to Demand Intertripping schemes.
(c) NGC Transmission System to Directly Connected Customers
Intertripping Schemes
(d) Auto open/close schemes.
(e) System splitting or islanding schemes which impact on the
Users system or plant.
APPENDIX F4
SITE SPECIFIC TECHNICAL CONDITIONS
(1) Control Arrangements
If the User is a Generator: The User shall install a
continuously-acting automatic excitation control system to
control the Generating Unit terminal voltage without instability
over the entire operating range of the Generating Unit. System
requirements for excitation control facilities including power
system stabilisers are set out below.
[NGC to propose - parties to agree]
(2) Control Telephony
The User shall provide the Control Telephony specified below.
[NGC to propose - parties to agree]
(3) System Monitoring
The voltage and current signals for system monitoring purpose to
be provided by the User at the sole expense of NGC are set out
below: -
[NGC to specify: these will consist only of signals form the
User's current transformer and voltage transformer in the manner
and from the locations et out here]
(4) Operational metering
The User shall provide the operation metering set out below.
[NGC to propose - parties to agree]
APPENDIX F5
SITE SPECIFIC TECHNICAL CONDITIONS
Metering
1.1 Operator
Where the Connection Site is a Grid Supply Point, and the User is
or will be Registrant in relation to the Energy Metering
Equipment required by the Pooling and Settlement Agreement at the
Grid Supply Point and/or at the bulk supply point(s) which are
related to that Grid Supply Point, NGC shall install and be the
Operator of all such Energy Metering Equipment from the Transfer
Date until the FMS Date and thereafter:
1.1.1 NGC may resign as Operator of such Energy Metering
Equipment on giving no less than 12 months' notice in writing;
and
1.1.2 the User may remove NGC as Operator upon giving no less
than 12 months' notice in writing.
Provided that where the User agrees to become owner of any such
Energy Metering Equipment NGC may resign as Operator upon such
transfer of ownership and shall agree such terms as shall be
reasonably necessary to enable the User to perform its
obligations as Operator of such Energy Metering Equipment.
1.2 Charges
NGC shall recover its charges for acting as Operator of any
Energy Metering System which is an NGC Asset charged for under
this Supplemental Agreement as part of such charges. Where NGC
acts as Operator of any other Energy Metering System owned by NGC
for which the User is Registrant NGC shall charge and the User
shall pay such amount which is reasonable in all the
circumstances.
1.3 Interference
The User shall ensure that its employees, agents and invitees
will not interfere with any Energy Metering Equipment in respect
of which NGC is Operator or the connections to such Energy
Metering Equipment, without the prior written consent of NGC
(except to the extent that emergency action has to be taken to
protect the health and safety of persons or to prevent serious
damage to property proximate to the Energy Metering Equipment or
to the extent that such action is authorised under the Master
Agreement or any other agreement between NGC and the User).
1.4 Pulse data
The User shall have the right to collect and record pulses from
the meters comprised in the Energy Metering System(s) at the
Connection Site. NGC shall give the User access in accordance
with the Interface Agreement to collect and record such pulses
and to install and maintain such lines and equipment as maybe
reasonably necessary therefor.
EXHIBIT 5
DATED 19
THE NATIONAL GRID COMPANY PLC (1)
and
[ ] (2)
SUPPLEMENTAL AGREEMENT TYPE 5
(for Second Tier Suppliers acting in that capacity
taking Energy through any Grid Supply Point and
through a Distribution System owned or operated
by any other person)
CONTENTS
Clause Title
1 Definitions, Interpretation, Construction
2 Right to use the NGC Transmission System
3 User's Customers
4 Use of System Charges
5 Charging Rules
6 Metering
7 Term
8 Deenergisation and Disconnection
9 Notice to Terminate
10 Master Agreement
11 Variations
Appendix A User's Customers
Appendix B
Appendix C Zone/Registered Capacity/Peak Half-Hours/Estimated Demand
Appendix D Use of System Charges/Payment
Appendix E Charging Rules
Appendix F1 Site Specific Technical Conditions - Metering
THIS SUPPLEMENTAL AGREEMENT is made the day of 19
BETWEEN
(1) THE NATIONAL GRID COMPANY PLC a company registered in
England with number 2366977 whose registered office is at
National Grid House, Sumner Street, London SE1 9JU ("NGC", which
expression shall include its successors and/or permitted
assigns); and
(2) [ ] a company registered in [ ] with number
[ ] whose registered office is at [ ] (the "User", which
expression shall include its successors and/or permitted assigns)
WHEREAS
(A) NGC and the User are parties to a Master Connection and Use
of System Agreement dated [ ] (~ Master Agreement.).
(B) This Supplemental Agreement is entered into pursuant to the
terms of the Master Agreement and shall be read as being governed
by them.
NOW IT IS HEREBY AGREED as follows: -
1. DEFINITIONS. INTERPRETATION AND CONSTRUCTION
1.1 General
Unless the subject matter or context otherwise requires or is
inconsistent therewith terms and expressions defined in Schedule
2 to the Master Agreement have the same meanings, interpretations
or constructions in this Supplemental Agreement.
2. RIGHT TO USE THE NGC TRANSMISSION SYSTEM
2.1 Subject to the other provisions of this Agreement including
the provisions of the Grid Code, the User may take supplies of
power from the NGC Transmission System.
2.2 Data of a technical or operational nature collected recorded
or otherwise generated pursuant to this Supplemental Agreement
shall be deemed data lodged pursuant to the Grid Code to the
extent that the Grid Code makes provision therefor.
2.3 Subject to the provisions of this Agreement and the Grid
Code, NGC shall transport a supply of power through the NGC
Transmission System to the level forecast by the User from time
to time pursuant to Appendices E and C hereof together with such
margin as NGC shall in its reasonable opinion consider necessary
having due regard to NGC's duties under its Transmission Licence
except to the extent (if any) that NGC is prevented from doing so
by transmission constraints or by insufficiency of generation
which, in either case, could not have been avoided by the
exercise of Good Industry Practice by NGC.
2.4 Subject to the provisions of the Grid Code NGC shall be
entitled to plan and execute outages of parts of the NGC
Transmission System or Plant or Apparatus at any time and from
time to time.
3. USER'S CUSTOMERS
3.1 The User shall give written notice to NGC of the following
details of all exit points from time to time in existence between
any Distribution System and the User's Customer: -
(i) the electrical location and nomenclature of the Energy
Metering Equipment installed in relation to each such Customer,
(ii) the identity of the operator of the Distribution System to
which such Customers are connected;
(iii) the Grid Supply Point meeting the Demand (Active Power) of
each such Customer;
(iv) the loss factors applying to the Energy Metering Equipment
installed in relation to each such Customer, save where the
User's Customer is connected to a Distribution System owned by a
PES in which case the PES's published statement of loss factors
shall apply. Such written notice shall be given to NGC no later
than 28 days prior to the commencement or cessation of use of any
such exit point. If the Grid Supply Point referred to in (iii)
changes the User shall notify NGC forthwith after being notified
of such change by the PES in question. The information submitted
by the User from time to time shall be recorded in Appendix A
which shall be deemed automatically amended to reflect the
current position from time to time. If NGC's basis of charging
changes pursuant to Appendix E paragraph 2.1 at any time NGC
shall be entitled to ask for other information it reasonably
requires for charging purposes under this Clause 3.
4. USE OF SYSTEM CHARGES
With effect from the commencement of this Supplemental Agreement
the User shall pay to NGC the Use of System Charges set out in
Appendix D payable in accordance with the provisions of Appendix
E.
5. CHARGING RULES
The provisions of the Charging Rules set out in Appendix E to
this Supplemental Agreement shall apply.
6. METERING
The provisions of Appendix F1 shall have effect.
7. TERM
Subject to the provisions for earlier termination set out herein
and in Clause 17 of the Master Agreement, this Supplemental
Agreement shall continue until the User ceases to use the NGC
Transmission System.
8. DEENERGISATION AND DISCONNECTION OF THE USER'S CUSTOMERS
8.1 Breach by the User:
If the User shall be in breach of the provisions of this
Supplemental Agreement and such breach causes or can reasonably
be expected to cause a material adverse effect on the business or
condition of NGC or other Users or the NGC Transmission System or
Users Systems then NGC may: -
(i) where the breach is capable of remedy, give written notice
to the User specifying in reasonable detail the nature of the
breach and requiring the User within 28 days after receipt of
such notice to remedy the breach or within any longer period
agreed between NGC and the User, the agreement of NGC not to be
unreasonably withheld or delayed; or
(ii) where the breach is incapable of remedy, give written
notice to the User specifying in reasonable detail the nature of
the breach and the reasons why the breach is incapable of remedy
and requiring the User within 5 Business Days after receipt of
such notice to undertake to NGC not to repeat the breach.
8.2 De-Energisation
If: -
(a) the User fails to comply with the terms of any valid notice
served on it by NGC in accordance with Sub-Clause 8.1(i) or is in
breach of any undertaking given in accordance with Sub-Clause
8.1(ii) and such breach causes or can be reasonably expected to
cause a material adverse effect on the business or condition of
NGC or other Users or the NGC Transmission System or Users
Systems; or
(b) five Business Days have elapsed since the date of any valid
notice served on the User in accordance with Sub-Clause 8.2(ii)
and no undertaking is given by the User in accordance with
Sub-Clause 8.2(ii);
NGC may request the owner of the Distribution System to which the
User's Customers are connected to De-Energise such User's
customers upon the expiry of at least 48 hours prior written
notice to the User provided that at the time of expiry of such
notice the breach concerned remains unremedied and that neither
the User nor NGC has referred the matter to the Dispute
Resolution Procedure. In such event NGC may request the owner of
the Distribution System to which the User's Customers are
connected to De-Energise such User's Customers forthwith
following completion of the Dispute Resolution Procedure and
final determination of the dispute in NGCs favour.
8.3 NGC Transmission Licence
If a breach of the nature referred to in Sub-Clause 8.1 continues
to the extent that it places or seriously threatens to place in
the immediate future NGC in breach of the NGC Transmission
Licence, NGC may request the owner of the Distribution System to
which the User's Customers are connected to De-Energise such
User's Customers upon the expiry of at least 12 hours prior
written notice to the User, provided that at the time of expiry
of such notice the breach concerned remains unremedied.
8.4 Re-Energisation Disputes
If, following any De-Energisation pursuant to this Clause 8, a
User applies to NGC for NGC to issue instructions that the User's
Customers be Re-Energised and is refused or is offered terms
which the User does not accept, this shall be recognised as a
dispute over the terms for use of system which the User may refer
to the Director for determination under the NGC Transmission
Licence. If the User accepts any terms offered by NGC or settled
by the Director pursuant to any such reference, NGC shall request
the owner of the Distribution System to which the User's
Customers are connected to Re-Energise the User's Customers
forthwith after any request from the User for NGC to do so.
8.5 Event of Default
If the breach which led to any De-Energisation pursuant to this
Clause 8 remains unremedied at the ex-piry of at least 6
months after the date of such De-Energisation, NGC may declare by
notice in writing to the User that such breach has become an
event of default provided that: -
(a) all disputes arising out of the subject-matter to this
Clause 8 which are referred to the Dispute Resolution Procedure
have then been finally determined in favour of NGC; and
(b) any reference to the Director pursuant to Sub-Clause 8.4 has
then been finally determined in favour of NGC or any terms
settled by the Director pursuant to such application have not
been accepted by the User.
8.6 Disconnection
Once NGC has given a valid notice of an event of default pursuant
to Sub- Clause 8.5 NGC may give notice of termination to that
User whereupon this Supplemental Agreement shall terminate and:
(i) NGC shall request the owner of the Distribution System to
which that User's Customers are connected to disconnect such
Customers; and
(ii) the User shall be obliged to pay to NGC forthwith the Use
of System Charges due hereunder up to the end of the Financial
Year in which Termination occurs.
9. NOTICE TO TERMINATE
9.1 The User may terminate the Supplemental Agreement upon
giving to NGC not less than 28 days written notice of
termination.
9.2 If notice to terminate is given by the User under Sub-Clause
9.1 this Supplemental Agreement shall terminate upon the expiry
of the notice period. Immediately prior thereto the User shall
pay NGC all Use of System Charges payable by the User under this
Supplemental Agreement in respect of the Financial Year in which
termination takes place. This provision shall survive the
termination of this Supplemental Agreement.
10. MASTER AGREEMENT
The provisions of Clauses 18 to 24 and 26 to 30 inclusive of the
Master Agreement shall apply to this Supplemental Agreement as if
set out in full herein.
11. VARIATIONS
No variation to this Supplemental Agreement shall be effective
unless made in writing and signed by or on behalf of both NGC and
the User. NGC and the User shall effect any amendment required to
be made to this Supplemental Agreement by the Director as a
result of a change in the Transmission Licence or an order made
pursuant to the Act or as a result of settling any of the terms
hereof and the User hereby authorises and instructs NGC to make
any such amendment on its behalf and undertakes not to withdraw,
qualify or revoke such authority or instruction at any time.
IN WITNESS WHEREOF the hands of the duly authorised
representatives of the parties hereto at the date first above
written
THE NATIONAL GRID COMPANY PLC )
By )
[the USER] )
By )
APPENDIX A
CUSTOMER INFORMATION
Customer - exit point
1. Location and nomenclature of Energy Metering Equipment
2. Distribution System operator
3. Grid Supply Point meeting Demand
4. Loss factor
APPENDIX B
(NOT USED)
APPENDIX C
ZONE/REGISTERED CAPACITY/PEAK HALF-HOURS/ESTIMATED DEMAND
COMPANY:
GRID SUPPLY POINT/
CONNECTION SITE:
ELECTRICAL LOCATION OF ENERGY METERING EQUIPMENT
MEASURING STATION DEMAND:
ZONE :
a. GENERATION:
SET TYPE/FUEL REGISTERED
CAPACITY MW
b. In the Financial Year 1st April 1990 to 31st March 1991 NGC's
Demand related Use of System charges shall be calculated by
reference to the Demand attributable to the User at the Grid
Supply Point identified above in relation to the 3 half-hours of
peak Demand (Active Power) occurring on the 3 days of peak Demand
(Active Power) which occur in the period from 1st November 1990
to 28th February 1991 and are at least 10 days apart.
c. In the Financial Year 1st April 1990 to 31st March 1991 NGCs
generation related Use of System Charges shall be calculated by
reference to the highest Registered Capacity during such
Financial Year and the Energy produced.
d. ESTIMATED DEMAND for the period between 1 April 1990 and 31st
March 1991 and thereafter as notified in accordance with the
Charging Rules.
________________MW
APPENDIX D
USE OF SYSTEM CHARGES/PAYMENT
COMPANY:
LOCATION:
1) TYPE OF CHARGE: SYSTEM SERVICE
Demand related
Pound..........in respect of the period from 1st April 1990 to 31st
March 1991 payable in 12 equal monthly instalments subject to
adjustment in accordance with the
Charging Rules.
Note: based upon a charge of pound per KW and KW of Estimated
Demand as set out in Appendix C.
2) TYPE OF CHARGE: INFRASTRUCTURE
A. Demand related
Pound..........in respect of the period from 1st April 1990 to 31st
March 1991 payable in 12 equal monthly instalments subject to
adjustment in accordance with the Charging Rules.
Note: based upon a charge of pound per KW and........ KW of
Estimated Demand as set out in Appendix C.
B. Capacity Related
Pound..........in respect of the period from 1st April 1990 to 31st
March 1991 payable in 12 equal monthly instalments subject to
adjustment in accordance with the Charging Rules based upon a
charge of pound..........per KW Registered Capacity and....... KW
being the Registered Capacity as set out in Appendix C.
C. Energy Related
Pound..........per KWh in respect of each KWh of Energy entering the
Total System in the period from 31st March 1990 to 31st March
1991 payable as described in Clause 14 of the Master Agreement.
Payment shall be made in accordance with Clause 14 of the Master
Agreement.
APPENDIX E
CHARGING RULES
Use of System Charges - General and Data Requirements
1.1 NGC's Demand related Use of System Charges are calculated by
reference to Demand (Active Power) attributable to each Grid
Supply Point excluding that Demand (Active Power) met by embedded
Generating Units which is to be paid for otherwise than pursuant
to the Pooling and Settlement Agreement.
1.2 Data Requirements
1.2.1 On or before 31st December in each Financial Year the User
shall supply NGC with such data as NGC may from time to time
reasonably request to enable NGC to calculate the Connection
Charges and/or Use of System Charges due from the User to NGC in
respect of the Connection Site including the data specified in
Appendix C.
1.2.2 On or before 31st December in each Financial Year,
(i) Users who are Public Electricity Suppliers shall supply to
NGC a forecast for the following Financial Year of the
following:-
(a) the Natural Demand attributable to each Grid Supply Point
equal to the average of the forecasts of Natural Demand under
Annual Average Cold Spell (ACS) Conditions attributable to such
Grid Supply Point for each of a number of peak half-hours as
notified by NGC to the User under paragraph 2.1 of this Appendix
E; and
(b) the PES Supply Business Demand attributable to each Grid
Supply Point equal to the average of the forecasts of PES Supply
Business Demand under Annual Average Cold Spell (ACS) Conditions
attributable to such Grid Supply Point for each of a number of
peak half-hours as notified by NGC to the User under paragraph
2.1 of this Appendix E.
(ii) Users who are Second Tier Suppliers shall supply to NGC a
forecast for the following Financial Year of the STS Demand under
Annual Average Cold Spell (ACS) Conditions attributable to each
Grid Supply Point equal to the average of the forecasts of STS
Demand attributable to such Grid Supply Point for each of a
number of peak half-hours as notified by NGC to the User under
paragraph 2.1 of this Appendix E.
(iii) Users who are Generators shall supply to NGC a forecast for
the following Financial Year of the Station Demand (Active Power)
under Annual Average Cold Spell (ACS) Conditions attributable to
each Grid Supply Point equal to the average of the forecasts of
such Station Demand (Active Power) attributable to such Grid
Supply Point for each of a number of peak half-hours as notified
by NGC to the User under paragraph 2.1 of this Appendix E.
1.3 Annual Adjustment
1.3.1 NGC's Demand related Use of System Charges shall be
calculated on the basis of actual Demand (Active Power)
attributable to each User at each Grid Supply Point for each of a
number of peak half hours as notified by NGC to the User under
paragraph 2.1 of this Appendix E.
1.3.2 On or before 1st March each Financial Year NGC shall: -
(i) determine from meter readings of Energy Metering Equipment
the actual Demand (Active Power) attributable to each User at
each Grid Supply Point for each of the Number of Peak Half Hours
applicable during such Financial Year; and
(ii) shall compare the User's highest Registered Capacity during
such year with the Registered Capacity used when estimating the
charges due during such Financial Year;
1.3.3 NGC shall then promptly calculate on the basis of the
actual position determined in accordance with paragraph 1.3.2 the
amount of Demand related or Capacity related Use of System
Charges (as the case may be) that would have been payable by the
User under this Supplemental Agreement during each month during
that Financial Year if they had been calculated on the basis of
that of the actual position (the "Actual Amount"). NGC shall then
compare the Actual Amount with the amount of Demand related or
Capacity related Use of System Charges (as the case may be) paid
during each month during that Financial Year by the User under
this Supplemental Agreement (the "Notional Amount").
1.3.4 NGC shall then prepare a reconciliation statement and send
it to the User. Such statement shall specify the Actual Amount
and the Notional Amount for each month during the relevant
Financial Year and, in reasonable detail, the information from
which such amounts were derived and the way in which they were
calculated.
1.3.5 Together with the reconciliation statement NGC shall send
the User an invoice in relation to any sums shown by the
reconciliation statement to be due to NGC and interest thereon
calculated pursuant to paragraph 1.3.6 below. Forthwith following
receipt of any reconciliation statement the User shall send to
NGC an invoice in relation to any sum shown by the reconciliation
statement to be due to the User and interest thereon calculated
pursuant to paragraph 1.3.6 below. Such invoices shall be payable
on or before 31st March in such Financial Year.
1.3.6 In respect of each month during that Financial Year. -
(a) the User shall, following receipt of an appropriate invoice,
pay to NGC an amount equal to the amount (if any) by which the
Actual Amount exceeds the Notional Amount; and
(b) NGC shall, following receipt of an appropriate invoice, repay
to the User an amount equal to the amount (if any). by which the
Notional Amount exceeds the Actual Amount.
Interest shall be payable by the paying Party to the other on
such amounts from the Payment Date applicable to the month
concerned until the date of actual payment of such amounts (which
shall not be later than 31st March in such Financial Year). Such
interest shall be calculated on a daily basis at the rate equal
to the base rate of Barclays Bank PLC for the time being and from
time to time during such period.
2. Revision of Charges
2.1 To the extent permitted by the Transmission Licence NGC may
revise its Connection Charges and Use of System Charges or the
basis of their calculation including issuing revisions to
Appendices B, C and D hereto. On or before 31st October in each
Financial Year NGC shall notify the User of the intended basis of
calculation to be used by NGC in the following Financial Year
(including the number and timing of peak half-hours if any to be
used when calculating Demand related infrastructure charges) and
shall consult with the User concerning the same. On or before
30th November in each Financial Year NGC shall confirm to the
User the basis of calculation to be used in the following
Financial Year. NGC shall give the User not less than 2 months
prior written notice of any revised charges, including revisions
to Appendices B, C and D hereto, which notice shall specify the
date upon which such revisions become effective (which may be at
any time). The User shall pay any such revised charges and
Appendix B, C and/or D as appropriate shall be amended
automatically (and a copy sent to the User) to reflect any
changes to such Appendices with effect from the date specified in
such notice.
2.2 The User acknowledges that NGC will establish a new asset
register during the course of the Financial Year ending 31st
March 1991. As a result, NGC shall have the right to vary the
asset allocation reflected in Appendix A upon giving not less
than 2 months prior written notice to the User provided that: -
(a) NGC has first consulted the User in advance in good faith,
including informing the User of the nature of the reallocation
insofar as it materially affects the Connection Site and
indicating the likely implications for the User of such
reallocation; and
(b) the principles of asset allocation are those set out in the
statements required by Condition 1 0(2)D of the Transmission
Licence, the form of which has been approved by the Director.
Such asset reallocation shall be effective from 1st April 1991
and the provisions of Appendices A and B shall be amended
automatically (and a copy sent to the User) to reflect such
reallocation with effect from such date.
2.3 Subject to the provisions of paragraph 3.2 below if in the
reasonable opinion of NGC any development, replacement,
renovation, alteration, construction or other work to the NGC
Transmission System means that NGC needs to vary the Connection
Charges payable by the User in relation to the Connection Site
NGC shall have the right to vary such charges accordingly upon
giving to the User not less than 2 months prior written notice.
Such notice shall be deemed to be a revised Connection Offer and
before any such variation become effective the provisions of
Sub-Clauses 11.2 and 11.4 shall apply mutatis mutandis. Following
any such variation the provisions of Appendices A and B shall be
amended automatically (and a copy sent to the User) to reflect
such variation with effect from the date such variation comes
into effect.
3. Replacement of NGC Assets
3.1 Appendix A specifies the age of each of the NGC Assets at
the Connection Site at the date of this Supplemental Agreement.
NGC Connection Charges and Use of System Charges are calculated
on the assumption that NGC Assets will not require replacement
until the expiry of the Replacement Period applicable to each NGC
Asset concerned. Such Replacement Periods have been agreed
between NGC and the User. For the avoidance of doubt, they have
been prepared for accounting purposes and carry no implication
that they represent the actual useful lives of such assets.
3.2 Where in NGCs reasonable opinion an NGC Asset requires
replacement before the expiry of its Replacement Period NGC
shall, with the prior written approval of the User (except where
in NGCs reasonable opinion such replacement is necessary, in
which case such approval shall not be required but in such case
the User shall have the right to give notice to Disconnect) have
the right to replace the NGC Asset at no additional cost to the
User until expiry of its original Replacement Period. Upon the
expiry of such original Replacement Period NGC shall be entitled
to vary the Connection Charges in respect of the replaced NGC
Asset so that they are calculated on the basis of the then
current Net Asset Value of such NGC Assets. NGC shall give the
User not less than 2 months prior written notice of such varied
charges which notice shall specify the date upon which such
increase becomes effective. The User shall pay such varied
charges and Appendices A and B shall be amended automatically
(and a copy sent to the User) to reflect such revised charges
with effect from the date specified in such notice.
3.3 Upon the expiry of the Replacement Period of any NGC Asset,
NGC shall replace such NGC Asset if requested to do so by the
User or if in NGC's reasonable opinion it is necessary to do so
to enable NGC to comply with its Licence obligations. Unless so
replaced, NGC shall keep the NGC Asset in service. In the event
that it is left in service the User shall pay Connection Charges
in respect of such NGC Asset calculated by reference to Net Asset
Value derived from a revaluation of the asset by NGC (which in
the reasonable opinion of NGC, taking into account the
depreciation already paid over the lifetime of that asset,
reflects the then expected life expectancy of the asset plus
capitalised renovation or refurbishment costs). Upon any such
replacement NGC shall be entitled to vary the Connection Charges
in respect of the replaced NGC Asset so that they are calculated
on the basis of the then current Net Asset Value of such NGC
Asset. NGC shall give the User not less than 2 months prior
written notice of such varied charges which notice shall specify
the date upon which such increase becomes effective. The User
shall pay such varied charges and Appendices B and D shall be
amended automatically (and a copy sent to the User) to reflect
such revised charges with effect from the date notified to the
User by NGC.
4. U
4.1 Until the end of the Financial Year in which the termination
occurs the User shall pay to NGC the Connection Charges and Use
of System Charges for which the User is liable in full. Where the
User has a Connection Site the User shall at the end of such
Financial Year pay to NGC a sum equal to the following:
(i) the then current Net Asset Value of the NGC Assets at the
Connection Site in question; and
(ii) a sum equal to the reasonable cost of removing such NGC
Assets.
4.2 Where a Termination Amount is paid to NGC under this
Agreement and subsequently NGC uses the NGC Assets at the same or
another Connection Site and renders and receives a Connection
Charge therefor NGC shall pay to the User the Net Asset Value
component of the Termination Amount less reasonable maintenance
and storage costs. NGC shall use its reasonable endeavours to
e-use such NGC Assets where it is economic to do so. Upon request
and at the cost of the User, NGC shall issue a certificate no
more frequently than once each calendar year indicating whether
or not such NGC Assets have or have not been so re-used.
5. Variation of Charges by NGC during the Financial Year
If NGC is notified of a reduced Demand forecast by a PES or STS
from the forecast submitted under paragraph 1.2 of this Appendix
and is also notified of a corresponding increase in such a Demand
forecast by another PES or STS NGC shall vary the Use of System
charges due from the User notifying the reduction such that the
charges payable reflect the revised forecast within 30 days of
receipt of the 2 notices. NGC shall vary or commence charging as
the case may be the Use of System charges due from the User
notifying the increase with effect from the date that the
increase becomes effective. Save where NGC receives 2
corresponding notifications there shall unless NGC decides
otherwise be no variation of charges downwards during the
Financial Year to cover this eventuality and reconciliation shall
be effected pursuant to paragraph 1.3 of this Appendix.
6. Deductions
In respect of any NGC Engineering Charges which have been paid by
the User in connection with a Connection Application or under
Sub-Clause 2.3 of the Supplemental Agreement Type 2 NGC shall
reduce the amount of Connection Charges payable by the User in
relation to the respective Connection Site on 1st April in each
of the first 3 years of the payment of such Connection Charges by
an amount equal on each occasion to one third of such NGC
Engineering Charges.
APPENDIX F1
SITE SPECIFIC TECHNICAL CONDITIONS
Metering
1.1 Operator
Where the Connection Site is a Grid Supply Point, and the User is
or will be Registrant in relation to the Energy Metering
Equipment required by the Pooling and Settlement Agreement at the
Grid Supply Point and/or at the bulk supply point(s) which are
related to that Grid Supply Point, NGC shall install and be the
Operator of all such Energy Metering Equipment from the Transfer
Date until the FMS Date and thereafter: -
1.1.1 NGC may resign as Operator of such Energy Metering
Equipment on giving no less than 12 months' notice in writing;
and
1.1.2 the User may remove NGC as Operator upon giving no less
than 12 months' notice in writing. Provided that where the User
agrees to become owner of any such Energy Metering Equipment NGC
may resign as Operator upon such transfer of ownership and shall
agree such terms as shall be reasonably necessary to enable the
User to perform its obligations as Operator of such Energy
Metering Equipment.
1.2 U
NGC shall recover its charges for acting as Operator of any
Energy Metering System which is an NGC Asset charged for under
this Supplemental Agreement as part of such charges. Where NGC
acts as Operator of any other Energy Metering System owned by NGC
for which the User is Registrant NGC shall charge and the User
shall pay such amount which is reasonable in all the
circumstances.
1.3 Interference
The User shall ensure that its employees, agents and invitees
will not interfere with any Energy Metering Equipment in respect
of which NGC is Operator or the connections to such Energy
Metering Equipment, without the prior written consent of NGC
(except to the extent that emergency action has to be taken to
protect the health and safety of persons or to prevent serious
damage to property proximate to the Energy Metering Equipment or
to the extent that such action is authorised under the Master
Agreement or any other agreement between NGC and the User).
1.4 Pulse data
The User shall have the right to collect and record pulses from
the meters comprised in the Energy Metering System(s) at the
Connection Site. NGC shall give the User access in accordance
with the Interface Agreement to collect and record such pulses
and to install and maintain such lines and equipment as maybe
reasonably necessary therefor.
EXHIBIT 6
DATED 30th March 1990
THE NATIONAL GRID COMPANY PLC (1)
and
[ ] (2)
________________________________________
SUPPLEMENTAL AGREEMENT TYPE 6
_________________________________________
(for Generators with Minor Independent
Generating Plant which is Embedded and who are acting in that
capacity and also are Pool Members
CONTENTS
Clause Title
1 Definitions, Interpretation, Construction
2 Right to use the NGC Transmission System
3 Site of Connection to the Distribution System
4 Use of System Charges
5 Charging Rules
6 Metering
7 Term
8 Emergency Deenergisation
9 Deenergisation and Disconnection
10 Notice to Terminate
11 Master Agreement
12 Variations
Appendix A Site of Connection
Appendix B
Appendix C Zone/Registered Capacity/Peak Half-Hours/Estimated Demand
Appendix D Use of System Charges/Payment
Appendix E Charging Rules
Appendix F1 Site Specific Technical Conditions - Metering
THIS SUPPLEMENTAL AGREEMENT is made the and becomes
effective on the 31st day of March 1990
BETWEEN
(1) THE NATIONAL GRID COMPANY PLC a company registered in
England with number 2366977 whose registered office is at
National Grid House, Sumner Street, London SE1 9JU ("NGC", which
expression shall include its successors and/or permitted
assigns); and
(2) [ ] a company registered in [ ] with number [ ] whose
registered office is at [ ] (the "User", which expression shall
include its successors and/or permitted assigns)
WHEREAS
(A) NGC and the User are parties to a Master Connection and Use
of System Agreement dated [ ] ("Master Agreement").
(B) This Supplemental Agreement is entered into pursuant to the
terms of the Master Agreement and shall be read as being governed
by them.
NOW IT IS HEREBY AGREED as follows:-
1. DEFINITIONS. INTERPRETATION AND CONSTRUCTION
1.1 General
Unless the subject matter or context otherwise requires or is
inconsistent therewith terms and expressions defined in Schedule
2 to the Master Agreement have the same meanings, interpretations
or constructions in this Supplemental Agreement.
2. RIGHT TO USE THE NGC TRANSMISSION SYSTEM
2.1 Subject to the other provisions of this Agreement including
the provisions of the Grid Code, the User may take supplies of
power on to and/or take supplies of power from the NGC
Transmission System as the case may be.
2.2 The User shall not operate its User's Equipment such that any
of it exceeds its Registered Capacity save as expressly
permitted and instructed pursuant to the Fuel Security Code or as
may be necessary or expedient in accordance with Good Industry
Practice.
2.3 Data of a technical or operational nature collected recorded
or otherwise generated pursuant to this Supplemental Agreement
shall be deemed data lodged pursuant to the Grid Code to the
extent that the Grid Code makes provision therefor.
2.4 Subject to the provisions of this Agreement and the Grid
Code, NGC shall accept into the NGC Transmission System power
generated by the User up to the Maximum Export Capacity except to
the extent (if any) that NGC is prevented from doing so by
transmission constraints which could not be avoided by the
exercise of Good Industry Practice by NGC.
2.5 Subject to the provisions of the Grid Code NGC shall be
entitled to plan and execute outages of parts of the NGC
Transmission System or Plant or Apparatus at any time and from
time to time.
3. SITE OF CONNECTION TO THE DISTRIBUTION SYSTEM
The site where the User is connected to the Distribution System
is more particularly described in Appendix A.
4. USE OF SYSTEM CHARGES
With effect from the commencement of this Supplemental Agreement
the User shall pay to NGC the Use of System Charges set out in
Appendix D payable in accordance with the provisions of Appendix
E.
5. CHARGING RULES
The provisions of the Charging Rules set out in Appendix E to
this Supplemental Agreement shall apply.
6. METERING
The provisions of Appendix Fl shall have effect.
7. TERM
Subject to the provisions for earlier termination set out herein
and in Clause 17 of the Master Agreement, this Supplemental
Agreement shall continue until the User's Plant is Disconnected
from the Distribution System in accordance with Clause 9 or 10.
8. EMERGENCY DEENERGISATION
8.1 Emergency Deenergisation requested by NGC: If, in the
reasonable opinion of NGC, the condition or manner of operation
of the NGC Transmission System or the User's System (if any)
poses an immediate threat of injury or material damage to any
person or to the Total System or to any User's System or to the
NGC Transmission System, NGC shall have the right to request the
owner of the Distribution System to which the User is connected
to Deenergise the User's Equipment if it is necessary or
expedient to do so to avoid the occurrence of such injury or
damage.
8.2 Emergency Deenergisation by a User: If, in the reasonable
opinion of the User the condition or manner of operation of the
NGC Transmission System, the Total System or any other User's
System, poses an immediate threat of injury or material damage to
any person or to the User's System the User shall the right to
Deenergise the User's Equipment if it is necessary or expedient
to do so to avoid the occurrence of such injury or damage.
8.3 Renergisation: The User's Equipment at the Connection Site
shall be Re-Energised as quickly as practicable after the
circumstances to any Deenergisation under this Clause 12 have
ceased to exist.
9. DEENERGISATION AND DISCONNECTION
9.1 Breach by the User:
If the User shall be in breach of the provisions of this
Supplemental Agreement and such breach causes or can reasonably
be expected to cause a material adverse effect on the business or
condition of NGC or other Users or the NGC Transmission System
or User Systems then NGC may:-
(i) where the breach is capable of remedy, give written notice to
the User specifying in reasonable detail the nature of the breach
and requiring the User within 28 days after receipt of such
notice to remedy the breach or within any longer period agreed
between NGC and the User, the agreement of NGC not to be
unreasonably withheld or delayed; or
(ii) where the breach is incapable of remedy, give written notice
to the User specifying in reasonable detail the nature of the
breach and the reasons why the breach is incapable of remedy and
requiring the User within 5 Business Days after the receipt of
such notice to undertake to NGC not to repeat the breach.
9.2 De-Energisation: If:-
(a) the User fails to comply with the terms of any valid notice
served on it by NGC in accordance with Sub-Clause 9.1(i) or is in
breach of any undertaking given in accordance with Sub-Clause
9.1(ii) and such breach causes or can be reasonably expected to
cause a material adverse effect on the business or condition of
NGC or other Users or the NGC Transmission or User Systems; or
(b) five Business Days have elapsed the date of any valid notice
served on the User in accordance with Sub-Clause 9.2(ii) and no
undertaking is given by the User in accordance with Sub-Clause
9.2(ii); NGC may request the owner of the Distribution System to
which the User is connected to De-Energise the User's Plant at
that site upon expiry of at least 48 hours prior written notice
to the User, provided that at the time of expiry of such notice
the breach concerned remains unremedied and that neither the User
nor NGC has referred the matter to the Dispute Resolution
Procedure. In such event NGC may request the owner of the
Distribution System to which the User is connected to De-Energise
the User's Plant at that site forthwith following completion of
the Dispute Resolution Procedure and final determination of the
dispute in NGC's favour.
9.3 NGC Transmission Licence: If a breach of the nature referred
to in Sub-Clause 9.1 continues to the extent that it places or
seriously threatens to place in the immediate future NGC in
breach of the NGC Transmission Licence, NGC may request the owner
of the Distribution System to which the User's Customers are
connected to De-Energise such User's Customers upon the expiry of
at least 12 hours prior written notice to the User, provided that
at the time of expiry of such notice the breach concerned remains
unremedied.
9.4 Re-Energisation Disputes: If, following any De-Energisation
pursuant to this Clause 9, a User applies to NGC for NGC to issue
instructions that the User's Customer(s) be Re-Energised and is
refused or is offered terms which the User does not accept, this
shall be recognized as a dispute over the terms for use of system
which the User may refer to the Director for determination under
the NGC Transmission Licence. If the User accepts any terms
offered by NGC or settled by the Director pursuant to any such
reference, NGC shall request the owner of the Distribution System
to which the User's Plant is connected to Re-Energise the User's
Plant forthwith after any request from the User for NGC to do so.
9.5 Event of Default: If the breach which led to any
De-Energisation pursuant to this Clause 9 remains unremedied at
the expiry of at least 6 months after the date of such
De-Energisation, NGC may declare by notice in writing to the User
that such breach has become an event of default provided that:-
(a) all disputes arising out of the subject-matter to this Clause
9 which are referred to the Dispute Resolution Procedure have
then been finally determined in favour of NGC; and (b) any
reference to the Director pursuant to Sub-Clause 8.4 has then
been finally determined in favour of NGC or any terms settled by
the Director pursuant to such application have not been accepted
by the User.
9.6 Disconnection: Once NGC has given a valid notice of an event
of default pursuant to Sub- Clause 9.5 NGC may give notice of
termination to that User whereupon this Supplemental Agreement
shall terminate and
(i) NGC shall request the owner of the Distribution System to
which that User is connected to Disconnect all the User's Plant
at the site; and
(ii) the User shall be obliged to pay to NGC forthwith the Use
of System Charges due hereunder up to the end of the Financial
Year in which Termination occurs.
10. NOTICE TO TERMINATE
10.1 The User may terminate the Supplemental Agreement upon
giving to NGC not less than 6 months written notice of
termination.
10.2 If notice to terminate is given by the User under Sub-Clause
10.1 this Supplemental Agreement shall terminate upon the expiry
of the notice period. Immediately prior thereto the User shall
pay NGC all Use of System Charges payable by the User under this
Supplemental Agreement in respect of the Financial Year in which
termination takes place. This provision shall survive the
termination of this Supplemental Agreement.
11. MASTER AGREEMENT
The provisions of Clauses 18 to 24 and 26 to 30 inclusive of the
Master Agreement shall apply to this Supplemental Agreement as if
set out in full herein.
1 2. VARIATIONS
No variation to this Supplemental Agreement shall be effective
unless made in writing and signed by or on behalf of both NGC and
the User. NGC and the User shall effect any amendment required to
be made to this Supplemental Agreement by the Director as a
result of a change in the Transmission Licence or an order made
pursuant to the Act or as a result of settling any of the terms
hereof and the User hereby authorises and instructs NGC to make
any such amendment on its behalf and undertakes not to withdraw,
qualify or revoke such authority or instruction at any time.
IN WITNESS WHEREOF the hands of the duly authorised
representatives of the parties hereto at the date first above
written
THE NATIONAL GRID COMPANY PLC )
By )
the USER )
By )
APPENDIX A
COMPANY:
SITE OF CONNECTION TO DISTRIBUTION SYSTEM:
APPENDIX B
NOT USED
APPENDIX C
ZONE/REGISTERED CAPACITY / PEAK HALF/ESTIMATED DEMAND
COMPANY :
GRID SUPPLY POINT/
CONNECTION SITE:
ELECTRICAL LOCATION OF ENERGY METERING
EQUIPMENT MEASURING STATION DEMAND:
ZONE :
a. GENERATION:
SET TYPE/FUEL REGISTERED
CAPACITY MW
b. In the Financial Year 1st April 1990 to 31st March 1991 NGC's
Demand related Use of System charges shall be calculated by
reference to the Demand attributable to the User at the Grid
Supply Point identified above in relation to the 3 half-hours of
peak Demand (Active Power) occurring on the 3 days of peak
Demand (Active Power) which occur in the period from 1st November
1990 to 28th February 1991 and are at least 10 days apart.
c. In the Financial Year 1st April 1990 to 31st March 1991 NGC's
generation related Use of System Charges shall be calculated by
reference to the highest Registered Capacity during such
Financial Year and the Energy produced.
d. ESTIMATED DEMAND for the period between 1 April 1990 and 31st
March 1991 and thereafter as notified in accordance with the
Charging Rules.
__________MW
APPENDIX D
USE OF SYSTEM CHARGES/PAYMENT
COMPANY:
LOCATION:
I ) TYPE OF CHARGE: SYSTEM SERVICE
Demand related
Pound...................in respect of the period from 1st April 1990
to 31st March 1991 payable in 12 equal monthly installments
subject to adjustment in accordance with the Charging Rules.
Note: based upon a charge of pound.............per KW and..... KW of
Estimated Demand as set out in Appendix C.
2) TYPE OF CHARGE: INFRASTRUCTURE
A. Demand related
Pound...........in respect of the period from 1st April 1990 to 31st
March 1991 payable in 12 equal monthly installments subject to
adjustment in accordance with the Charging Rules.
Note: based upon a charge of pound..........per KW and ..........KW
of Estimated Demand as set out in Appendix C.
B. Capacity Related
Pound.......in respect of the period from 1st April 1990 to 31st
March 1991 payable in 12 equal monthly installments subject to
adjustment in accordance with the Charging Rules based upon a
charge of pound..... per KW Registered Capacity and .... KW being
the Registered Capacity as set out in Appendix C.
C. Energy Related
Pound........per KWh in respect of each KWh of Energy entering the
Total System in the period from 31st March 1990 to 31st March
1991 payable as described in Clause 14 of the Master Agreement.
Payment shall be made in accordance with Clause 14 of the Master
Agreement.
APPENDIX E
CHARGING RULES
1. Use of System Charges - General and Data Requirements
1.1 NGC's Demand related Use of System Charges are calculated by
reference to Demand (Active Power) attributable to each Grid
Supply Point excluding that Demand (Active Power) met by embedded
Generating Units which is to be paid for otherwise than pursuant
to the Pooling and Settlement Agreement.
1.2 Data Requirements
1.2.1 On or before 31st December in each Financial Year the User
shall supply NGC with such data as NGC may from time to time
reasonably request to enable NGC to calculate the Connection
Charges and/or Use of System Charges due from the User to NGC in
respect of the Connection Site including the data specified in
Appendix C.
1.2.2 On or before 31st December in each Financial Year, (i)
Users who are Public Electricity Suppliers shall supply to NGC a
forecast for the following Financial Year of the following:-
(a) the Natural Demand attributable to each Grid Supply Point
equal to the average of the forecasts of Natural Demand under
Annual Average Cold Spell (ACS) Conditions attributable to such
Grid Supply Point for each of a number of peak half-hours as
notified by NGC to the User under paragraph 2.1 of this Appendix
E; and
(b) the PES Supply Business Demand attributable to each Grid
Supply Point equal to the average of the forecasts of PES Supply
Business Demand under Annual Average Cold Spell (ACS) Conditions
attributable to such Grid Supply Point for each of a number of
peak half-hours as notified by NGC to the User under paragraph
2.1 of this Appendix E.
(ii) Users who are Second Tier Suppliers shall supply to NGC a
forecast for the following Financial Year of the STS Demand under
Annual Average Cold Spell (ACS) Conditions attributable to each
Grid Supply Point equal to the average of the forecasts of STS
Demand attributable to such Grid Supply Point for each of a
number of peak half-hours as notified by NGC to the User under
paragraph 2.1 of this Appendix E.
(iii) Users who are Generators shall supply to NGC a forecast for
the following Financial Year of the Station Demand (Active Power)
under Annual Average Cold Spell (ACS) Conditions attributable to
each Grid Supply Point equal to the average of the forecasts of
such Station Demand (Active Power) attributable to such Grid
Supply Point for each of a number of peak half-hours as notified
by NGC to the User under paragraph 2.1 of this Appendix E.
1.3 Annual Adjustment
1.3.1 NGCs Demand related Use of System Charges shall be
calculated on the basis of actual Demand (Active Power)
attributable to each User at each Grid Supply Point for each of a
number of peak half hours as notified by NGC to the User under
paragraph 2.1 of this Appendix E.
1.3.2 On or before 1st March each Financial Year NGC shall:
(i) determine from meter readings of Energy Metering Equipment
the actual Demand (Active Power) attributable to each User at
each Grid Supply Point for each of the Number of Peak Half Hours
applicable during such Financial Year; and
(ii) shall compare the User's highest Registered Capacity during
such year with the Registered Capacity used when estimating the
charges due during such Financial Year;
1.3.3 NGC shall then promptly calculate on the basis of the
actual position determined in accordance with paragraph 1.3.2 the
amount of Demand related or Capacity related Use of System
Charges (as the case may be) that would have been payable by the
User under this Supplemental Agreement during each month during
that Financial Year if they had been calculated on the basis of
that of the actual position (the "Actual Amount"). NGC shall then
compare the Actual Amount with the amount of Demand related or
Capacity related Use of System Charges (as the case may be) paid
during each month during that Financial Year by the User under
this Supplemental Agreement (the "Notional Amount").
1.3.4 NGC shall then prepare a reconciliation statement and send
it to the User. Such statement shall specify the Actual Amount
and the Notional Amount for each month during the relevant
Financial Year and, in reasonable detail, the information from
which such amounts were derived and the way in which they were
calculated.
1.3.5 Together with the reconciliation statement NGC shall send
the User an invoice in relation to any sums shown by the
reconciliation statement to be due to NGC and interest thereon
calculated pursuant to paragraph 1.3.6 below. Forthwith
following receipt of any reconciliation statement the User shall
send to NGC an invoice in relation to any sum shown by the
reconciliation statement to be due to the User and interest
thereon calculated pursuant to paragraph 1.3.6 below. Such
invoices shall be payable on or before 31st March in such
Financial Year.
1.3.6 In respect of each month during that Financial Year:-
(a) the User shall, following receipt of an appropriate invoice,
pay to NGC an amount equal to the amount (if any) by which the
Actual Amount exceeds the Notional Amount; and
(b) NGC shall, following receipt of an appropriate invoice, repay
to the User an amount equal to the amount (if any) by which the
Notional Amount exceeds the Actual Amount. Interest shall be
payable by the paying Party to the other on such amounts from the
Payment Date applicable to the month concerned until the date of
actual payment of such amounts (which shall not be later than
31st March in such Financial Year). Such interest shall be
calculated on a daily basis at the rate equal to the base rate of
Barclays Bank PLC for the time being and from time to time during
such period.
2. Revision of Charges
2.1 To the extent permitted by the Transmission Licence NGC may
revise its Connection Charges and Use of System Charges or the
basis of their calculation including issuing revisions to
Appendices B, C and D hereto. On or before 31st October in each
Financial Year NGC shall notify the User of the intended basis of
calculation to be used by NGC in the following Financial Year
(including the number and timing of peak half-hours if any to be
used when calculating Demand related infrastructure charges) and
shall consult with the User concerning the same. On or before
30th November in each Financial Year NGC shall confirm to the
User the basis of calculation to be used in the following
Financial Year. NGC shall give the User not less than 2 months
prior written notice of any revised charges, including revisions
to Appendices B, C and D hereto, which notice shall specify the
date upon which such revisions become effective (which may be at
any time). The User shall pay any such revised charges and
Appendix B, C and/or D as appropriate shall be amended
automatically (and a copy sent to the User) to reflect any
changes to such Appendices with effect from the date specified in
such notice.
2.2 The User acknowledges that NGC will establish a new asset
register during the course of the Financial Year ending 31st
March 1991. As a result, NGC shall have the right to vary the
asset allocation reflected in Appendix A upon giving not less
than 2 months prior written notice to the User provided that
(a) NGC has first consulted the User in advance in good faith,
including informing the User of the nature of the reallocation
insofar as it materially affects the Connection Site and
indicating the likely implications for the User of such
reallocation; and
(b) the principles of asset allocation are those set out in the
statements required by Condition 10(2)D of the Transmission
Licence, the form of which has been approved by the Director.
Such asset reallocation shall be effective from 1st April 1991
and the provisions of Appendices A and B shall be amended
automatically (and a copy sent to the User) to reflect such
reallocation with effect from such date.
2.3 Subject to the provisions of paragraph 3.2 below if in the
reasonable opinion of NGC any development, replacement,
renovation, alteration, construction or other work to the NGC
Transmission System means that NGC needs to vary the Connection
Charges payable by the User in relation to the Connection Site
NGC shall have the right to vary such charges accordingly upon
giving to the User not less than 2 months prior written notice.
Such notice shall be deemed to be a revised Connection Offer and
before any such variation become effective the provisions of
Sub-Clauses 11.2 and 11.4 shall apply mutatis mutandis. Following
any such variation the provisions of Appendices A and B shall be
amended automatically (and a copy sent to the User) to reflect
such variation with effect from the date such variation comes
into effect.
3. Replacement of NGC Assets
3.1 Appendix A specifies the age of each of the NGC Assets at the
Connection Site at the date of this Supplemental Agreement. NGC
Connection Charges and Use of System Charges are calculated on
the assumption that NGC Assets will not require replacement until
the expiry of the Replacement Period applicable to each NGC
Asset concerned. Such Replacement Periods have been agreed
between NGC and the User. For the avoidance of doubt, they have
been prepared for accounting purposes and carry no implication
that they represent the actual useful lives of such assets.
3.2 Where in NGC's reasonable opinion an NGC Asset requires
replacement before the expiry of its Replacement Period NGC
shall, with the prior written approval of the User (except where
in NGC's reasonable opinion such replacement is necessary, in
which case such approval shall not be required but in such case
the User shall have the right to give notice to Disconnect) have
the right to replace the NGC Asset at no additional cost to the
User until expiry of its original Replacement Period. Upon the
expiry of such original Replacement Period NGC shall be entitled
to vary the Connection Charges in respect of the replaced NGC
Asset so that they are calculated on the basis of the then
current Net Asset Value of such NGC Assets. NGC shall give the
User not less than 2 months prior written notice of such varied
charges which notice shall specify the date upon which such
increase becomes effective. The User shall pay such varied
charges and Appendices A and B shall be amended automatically
(and a copy sent to the User) to reflect such revised charges
with effect from the date specified in such notice.
3.3 Upon the expiry of the Replacement Period of any NGC Asset,
NGC shall replace such NGC Asset if requested to do so by the
User or if in NGC's reasonable opinion it is necessary to do so
to enable NGC to comply with its Licence obligations. Unless so
replaced, NGC shall keep the NGC Asset in service. In the event
that it is left in service the User shall pay Connection Charges
in respect of such NGC Asset calculated by reference to Net
Asset Value derived from a revaluation of the asset by NGC
(which in the reasonable opinion of NGC, taking into account the
depreciation already paid over the lifetime of that asset,
reflects the then expected life expectancy of the asset plus
capitalised renovation or refurbishment costs). Upon any such
replacement NGC shall be entitled to vary the Connection Charges
in respect of the replaced NGC Asset so that they are calculated
on the basis of the then current Net Asset Value of such NGC
Asset. NGC shall give the User not less than 2 months prior
written notice of such varied charges which notice shall specify
the date upon which such increase becomes effective. The User
shall pay such varied charges and Appendices B and D shall be
amended automatically (and a copy sent to the User) to reflect
such revised charges with effect from the date notified to the
User by NGC.
4. Termination Amounts
4.1 Until the end of the Financial Year in which the termination
occurs the User shall pay to NGC the Connection Charges and Use
of System Charges for which the User is liable in full. Where the
User has a Connection Site the User shall at the end of such
Financial Year pay to NGC a sum equal to the following:-
(i) the then current Net Asset Value of the NGC Assets at the
Connection Site in question; and
(ii) a sum equal to the reasonable cost of removing such NGC
Assets.
4.2 Where a Termination Amount is paid to NGC under this
Agreement and subsequently NGC uses the NGC Assets at the same
or another Connection Site and renders and receives a Connection
Charge therefor NGC shall pay to the User the Net Asset Value
component of the Termination Amount less reasonable maintenance
and storage costs. NGC shall use its reasonable endeavours to
re-use such NGC Assets where it is economic to do so. Upon
request and at the cost of the User, NGC shall issue a
certificate no more frequently than once each calendar year
indicating whether or not such NGC Assets have or have not been
so re-used.
5. Variation of Charges by NGC during the Financial Year
If NGC is notified of a reduced Demand forecast by a PES or STS
from the forecast submitted under paragraph 1.2 of this Appendix
and is also notified of a corresponding increase in such a
Demand forecast by another PES or STS NGC shall vary the Use of
System charges due from the User notifying the reduction such
that the charges payable reflect the revised forecast within 30
days of receipt of the 2 notices. NGC shall vary or commence
charging as the case may be the Use of System charges due from
the User notifying the increase with effect from the date that
the increase becomes effective. Save where NGC receives 2
corresponding notifications there shall unless NGC decides
otherwise be no variation of charges downwards during the
Financial Year to cover this eventuality and reconciliation
shall be effected pursuant to paragraph 1.3 of this Appendix.
6. Deductions
In respect of any NGC Engineering Charges which have been paid by
the User in connection with a Connection Application or under
Sub-Clause 2.3 of the Supplemental Agreement Type 2 NGC shall
reduce the amount of Connection Charges payable by the User in
relation to the respective Connection Site on 1st April in each
of the first 3 years of the payment of such Connection Charges by
an amount equal on each occasion to one third of such NGC
Engineering Charges.
APPENDIX F1
SITE SPECIFIC TECHNICAL CONDITIONS
Metering
1.1 Operator
Where the Connection Site is a Grid Supply Point, and the User is
or will be Registrant in relation to the Energy Metering
Equipment required by the Pooling and Settlement Agreement at the
Grid Supply Point and/or at the bulk supply point(s) which are
related to that Grid Supply Point, NGC shall install and be the
Operator of all such Energy Metering Equipment from the Transfer
Date until the FMS Date and thereafter:
1.1.1 NGC may resign as Operator of such Energy Metering
Equipment on giving no less than 12 months' notice in writing;
and
1.1.2 the User may remove NGC as Operator upon giving no less
than 12 months' notice in writing.
Provided that where the User agrees to become owner of any such
Energy Metering Equipment NGC may resign as Operator upon such
transfer of ownership and shall agree such terms as shall be
reasonably necessary to enable the User to perform its
obligations as Operator of such Energy Metering Equipment.
1.2 Charges
NGC shall recover its charges for acting as Operator of any
Energy Metering System which is an NGC Asset charged for under
this Supplemental Agreement as part of such charges. Where NGC
acts as Operator of any other Energy Metering System owned by NGC
for which the User is Registrant NGC shall charge and the User
shall pay such amount which is reasonable in all the
circumstances.
1.3 Interference
The User shall ensure that its employees, agents and invitees
will not interfere with any Energy Metering Equipment in respect
of which NGC is Operator or the connections to such Energy
Metering Equipment, without the prior written consent of NGC
(except to the extent that emergency action has to be taken to
protect the health and safety of persons or to prevent serious
damage to property proximate to the Energy Metering Equipment or
to the extent that such action is authorised under the Master
Agreement or any other agreement between NGC and the User).
1.4 Pulse data
The User shall have the right to collect and record pulses from
the meters comprised in the Energy Metering System(s) at the
Connection Site. NGC shall give the User access in accordance
with the Interface Agreement to collect and record such pulses
and to install and maintain such lines and equipment as maybe
reasonably necessary therefor.
EXHIBIT 7
CONNECTION APPLICATION
NOTES
PLEASE STUDY THE FOLLOWING NOTES BEFORE COMPLETING AND SIGNING
THIS APPLICATION FORM.
1. NGC requires the information requested in this application
form for the purposes of preparing an offer ("the Offer") to
enter into an agreement for connection to and/or use of the NGC
Transmission System in accordance with Condition 10(B) of the NGC
Transmission Licence. It is essential that the Applicant should
supply all information requested in this application form and
that every effort should be made to ensure that such information
should be accurate.
Please note that certain expressions which are used in this
application form are defined in the glossary of definitions
(contained in Schedule 2 to the Master Agreement) and when this
occurs the expressions have capital letters at the beginning of
each word.
2. Should NGC consider that any information provided is
incomplete or unclear or should NGC require further information
in order that it may prepare the Offer, the Applicant will be
requested to provide further information or clarification.
3. Should there be any change in any information provided by the
Applicant after it has been submitted to NGC, the Applicant must
immediately inform NGC of such a change.
4. NGC shall charge the Applicant and the Applicant shall pay to
NGC NGC's Engineering Charges in relation to the application. An
advance will be charged by NGC which will be reasonable in all
the circumstances. No application will be considered until such
advance has been paid. The balance of the NGC Engineering Charges
shall be notified and invoiced by NGC to the Applicant together
with a breakdown of such charges and the Applicant shall pay the
same within 28 days of the date of NGC's invoice. If NGC does not
make an Offer to the Applicant in accordance with Condition 10(B)
of the NGC Transmission Licence otherwise than by reason of
withdrawal of the application by the Applicant NGC will return
the charges to the Applicant. NGC will deduct from the Connection
Charges and/or Use of System Charges payable during the first 3
years following the Practical Completion Date any NGC Engineering
Charges paid by the applicant in 3 equal instalments. In the
event that the advance and any other payments exceed the
appropriate NGC Engineering Charges the excess shall be repaid
forthwith to the Applicant.
5. The effective date upon which the application is made shall be
the later of the date when NGC has received the application fee
under Paragraph 4 above and the date when NGC is reasonably
satisfied that the Applicant has completed Sections A-D. NGC
shall notify the Applicant of such date.
6. NGC will make the Offer in accordance with the terms of
Clauses 11 and 12 of the Master Agreement and the NGC
Transmission Licence.
7. NGC will make the Offer as soon as is reasonably practicable
and in any event within in 3 months of the effective date of the
application or such later period as the Director agrees to. The
Offer may, where it is necessary to carry out additional
extensive system studies to evaluate more fully the impact of the
proposed development, indicate the areas that require more
detailed analysis. Before such additional studies are required,
the Applicant shall indicate whether it wishes NGC to undertake
the work necessary to proceed to make a revised offer within the
3 month period or, where relevant the timescale consented to by
the Director. To enable NGC to carry out any of the above
mentioned necessary detailed system studies the Applicant may, at
the request of NGC, be required to provide some or all of the
Detailed Planning Data listed in Part 2 of the Appendix to the
Planning Code which is part of the Grid Code.
8. If the Applicant has not already entered into a Master
Connection and Use of System Agreement with NGC the Applicant
will be required as part of this Application Form to undertake
that he will comply with the provisions of the Grid Code for the
time being in force. Copies of the Grid Code and the Master
Connection and Use of System Agreement are sent with this
application form and the Applicant is advised to study them
carefully. Further copies are available on payment of NGC's
reasonable copying charges, postage and packing. Data submitted
pursuant to this application shall be deemed submitted pursuant
to the Grid Code.
9. NGC's Offer will be based upon its standard form terms of
Connection Offer a copy of which is attached and the statement of
charges issued by NGC under Condition 10 of NGC's Transmission
Licence. The Applicant should bear in mind NGC's standard form
terms of offer when making this application.
10. In particular, NGC prepares Offers upon the basis that each
party will design, construct, install, control, operate and
maintain the Plant and Apparatus which he will own usually but
not necessarily applying the ownership rules set out in Clause 6
of the Master Agreement. If the Applicant wishes NGC to carry out
any of these matters on the Applicant's behalf please contact NGC
for further details.
11. In particular please note that NGC may require as a
condition of the Offer that the Applicant's Plant or Apparatus
should meet or provide some or all of the technical requirements
set out in the Appendices of the draft Supplemental Agreement
attached to NGC's standard form terms of offer and may propose
that the Applicant's Plant or Apparatus should have the
capability to provide Agreed Ancillary Services.
12. Please complete this application form in black print and
return it duly signed to [name of contact] at the
Commercial Department, NGC, National Grid House, Sumner Street,
London, SE1 9JU (Telephone No. [ ]).
CONNECTION APPLICATION
1. We hereby apply to connect our Plant and Apparatus to the NGC
Transmission System at a New Connection Site. We agree to pay
NGC's Engineering Charges on the terms specified in the Notes to
the Connection Application.
2. We will promptly inform NGC of any change in the information
given in this Application as quickly as practicable after
becoming aware of any such change.
3. If we have not already signed a Master Agreement or Accession
Agreement we undertake for the purposes of this Application to be
bound by the terms of the Grid Code from time to time in force
and to sign an Accession Agreement.
Signed:
......................................................
For and on behalf of the Applicant
Date: .......................................
NGC - APPLICATION FOR A NEW CONNECTION
A. DETAILS OF APPLICANT
1.
Name:_______________________________________________________
2.
Address:____________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
3. Registered Office/Address:
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
4. Name, title and address of contacts for the purposes of this
application,
giving description of the field of responsibility of
each person:
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
______________________________________________________________
______________________________________________________________
5. If Applicant is an agent, please give name(s) and
address(es) of person(s) for
whom the Applicant is acting:
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
B. THE PROPOSED POINT OF CONNECTION
1. Please identify (preferably by reference to an extract from
Ordnance Survey Map) the intended location (the "Connection
Site") of the Plant and Apparatus ("the User Development") which
it is desired should be connected to the NGC Transmission
System and where the application is in respect of a proposed
New Connection Site other than at an existing sub-station
please specify the proposed location and name of the New
Connection Site (which name should not be the same as or
confusingly similar to the name of any other Connection Site)
together with details of access to the Connection Site including
from the nearest main road.
______________________________________________________________
______________________________________________________________
______________________________________________________________
2. Please provide a plan or plans of the proposed Connection
Site indicating (so far as you are now able) the position of all
buildings, structures, Plant and Apparatus and of all services
located on the Connection Site.
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
3. Give details of the intended legal estate in the Connection
Site (to include leasehold and freehold interests) in so far as
you are aware.
_____________________________________________________________
_____________________________________________________________
4. Who occupies the Connection Site in so far as you are aware?
_____________________________________________________________
5. If you believe that a new sub-station will be needed, please
indicate by reference to the plan
referred to in (2) above the Applicant's suggested location
for it - giving dimensions of the area.
_____________________________________________________________
_____________________________________________________________
6. If you are prepared to make available to NGC the land
necessary for the said substation, please set out brief proposals
for NGC's interest in it including (if relevant) such interest
and the consideration to be paid by NGC for it.
_____________________________________________________________
_____________________________________________________________
7. What space is available on the Connection Site for working
storage and accommodation areas for NGC contractors? If so,
please indicate by reference to the plan referred to in (2) above
the location of such areas, giving the approximate dimensions of
the same.
_____________________________________________________________
_____________________________________________________________
8. Please provide details (including copies of any surveys or
reports) of the physical nature of land in which you have a legal
estate at the proposed Connection Site including the nature of
the ground and the sub-soil including the results of the
following tests:
[NGC to specify]
_____________________________________________________________
_____________________________________________________________
9. Please give details and provide copies of all existing
relevant planning and other consents (statutory or otherwise)
relating to the Connection Site and the User Development and/or
details of any pending applications for the same.
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
10. Is access to or use of the Connection Site for the purposes
of installing, maintaining and operating Plant and Apparatus
subject to any existing restrictions? If so, please give details.
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
11. If you are aware of them, identify by reference to a plan
(if possible) the owners and
(if different) occupiers of the land adjoining the
Connection Site. To the extent that
you have information, give brief details of the owner's and
occupier's estates and/or
interests in such land.
_____________________________________________________________
_____________________________________________________________
12. Please provide details of the values and methods of
calculation of liquidated damages
to be payable by NGC if the proposed works are delayed or
not completed through
NGC's fault.
_____________________________________________________________
_____________________________________________________________
C. TECHNICAL INFORMATION
1. Please provide the data listed in Part I of the Appendix to
the Planning Code which are
applicable to you. Note: the data concerned form part of the
Planning Code and Data
Registration Code. Applicants should refer to these sections
of the Grid Code for an
explanation.
2. Please provide a copy of your Safety Rules if not already
provided to NGC
3. Please indicate any terms which you are prepared to offer
for
(a) Black Start Capability
(b) Gas Turbine Unit Fast Start
(c) Synchronous Compensation
(d) Pumped Storage Unit Spinning-in-Air
(e) Pumped Storage
(f) Pumped Storage Plant Fast Start from Standstill
(g) Demand Reduction
(h) Adjustment to Pumped Storage Unit Pumping Programme
(i) Hot Standby
4. Please enclose a draft Interface Agreement (if applicable).
D. PROGRAMME
Please provide a suggested construction programme in bar chart
form for the construction works necessary to install the User
Development (not the NGC Assets needing to be installed)
indicating the anticipated date when the connection will be
required to be made.
EXHIBIT 8
CONNECTION OFFER
Date: [ ]
Dear Sirs,
We refer to your application dated [ ] for a New
Connection Site for your proposed development at [ ] and
to [here list other documents submitted by applicant in support
of his application together with any relevant NGC communications
relating to the application] and now set out below our offer for
the New Connection Site. Please note that certain expressions
which are used in this offer are defined in the glossary of
definitions (contained in Schedule 2 to the Master Agreement) and
when this occurs the expressions have capital letters at the
beginning of each word.
1. NGC offers to enter into a Supplemental Agreement in the
form and terms attached as Section A. If you are not already
a User you are required to enter into the enclosed Accession
Agreement.
2. This offer has been prepared upon the basis that each party
will construct, install, control, operate and maintain the
Plant and Apparatus which it will own applying where
necessary the ownership rules set out in Clause 6 of the
Master Agreement. If you wish us to carry out any of these
matters on your behalf please contact us for further
details.
[3. It is a part of this offer that you also enter into an
Interface Agreement in the form set out in Section B.]
4. This offer has been prepared upon the basis that you have or
will obtain the legal estate which you expressed as your
intention in the said application in the land described
inSection C.
5. If so indicated by a tick in the relevant box
(i) you are required to provide us with your credit
rating over the past 10years and the name of your
credit rating agency.
and/or
(ii) you are required to enter into a bond in the sum
of [ ] pounds in a form approved by NGC such
approval not to be unreasonably withheld or
delayed.
6. The technical conditions with which you must comply
as a term of this offer are set out in the Grid Code.
Additional or different technical conditions set out
in the Appendices to the supplemental Agreement are
set out in Section A.
7. This offer is open for acceptance according to the terms of
Clause 11 of the Master Agreement and Transmission Licence.
Please note your right to make an application to the
Director to settle the terms of the Offer pursuant to
Condition 10CI of the Transmission Licence.
8. If you have not yet entered into a Master Agreement
with us please note that in your application you have
undertaken to be bound by the Grid Code and that the
provisions of the Grid Code bind you until this offer
lapses.
9. To accept this offer, please execute and return the
[Accession Agreement and] Supplemental Agreement [Interface
Agreement] attached to this offer as Section A. Subject to
the provisions of paragraph 7 above NGC will then itself
execute the Agreement(s). THE AGREEMENTS ARE ONLY EFFECTIVE
IN ACCORDANCE WITH THEIR TERMS ONCE THEY HAVE BEEN EXECUTED
BY NGC.
10. All communications in relation to this offer must, in the
first instance, be directed to the Commercial Department of
NGC for the attention of [description].
Yours faithfully,
...................................
for and on behalf of
The National Grid Company PLC
SECTION A
FORM OF SUPPLEMENTAL AGREEMENT
SECTION B
FORM OF INTERFACE AGREEMENT
SECTION C
USERS LAND
EXHIBIT 9
USE OF SYSTEM APPLICATION (GENERATORS)
NOTES
PLEASE STUDY THE FOLLOWING NOTES BEFORE COMPLETING AND SIGNING
THIS APPLICATION FORM.
1. NGC requires the information requested in this application
form for the purposes of preparing an offer (.the Offer.) to
enter into an agreement for use of the NGC Transmission System in
accordance with Condition 10(B) of the NGC Transmission Licence.
It is essential that the Applicant should supply all information
requested in this application form and that every effort should
be made to ensure that such information should be accurate.
Please note that certain expressions which are used in this
application form are defined in the glossary of definitions
(contained in Schedule 2 to the Master Agreement) and when this
occurs the expressions have capital letters at the beginning of
each word.
2. Should NGC consider that any information provided is
incomplete or unclear or should NGC require further information
in order that it may prepare the Offer, the Applicant will be
requested to provide further information or clarification.
3. Should there be any change in any information provided by the
Applicant after it has been submitted to NGC, the Applicant must
immediately inform NGC of such a change.
4. The effective date upon which the application is made shall
be the date when NGC is reasonably satisfied that the Applicant
has completed Sections A-D. NGC shall notify the Applicant of
such date.
5. NGC will make the Offer in accordance with the terms of
Clauses 11 and 12 of the Master Agreement and the NGC
Transmission Licence.
6. NGC will make the Offer as soon as is reasonably practicable
and in any event within 3 months of the effective date of the
application or such later period as the Director agrees to. The
offer may, where it is necessary to carry out additional
extensive system studies to evaluate more fully the impact of the
proposed development, indicate the areas that require more
detailed analysis. Before such additional studies are required,
the Applicant shall indicate whether it wishes NGC to undertake
the' work necessary to proceed to make a revised offer within the
3 month period or, where relevant the timescale consented to by
the Director. To enable NGC to carry out any of the above
mentioned necessary detailed system studies the Applicant may, at
the request of NGC, be required to provide some or all of the
Detailed Planning Data listed in Part 2 of the Appendix to the
Planning Code which is part of the Grid Code.
7. If the Applicant has not already entered into a Master
Connection and Use of System Agreement with NGC the Applicant
will be required as part of this Application Form to undertake
that he will comply with the provisions of the Grid Code for the
time being in force. Copies of the Grid Code and the Master
Connection and Use of System Agreement are sent with this
application form and the Applicant is advised to study them
carefully. Further copies are available on payment of NGC's
reasonable copying charges, postage and packing. Data submitted
pursuant to this application shall be deemed submitted pursuant
to the Grid Code.
8. NGC's Offer will be based to the extent appropriate upon its
standard form terms of Connection Offer a copy of which is
attached and the statement of charges issued by NGC under
Condition 10 of NGC's Transmission Licence. The Applicant should
bear in mind NGC's standard form terms of offer when making this
application
9. In particular please note that NGC may require as a condition
of the Offer, that the Applicant's Plant or Apparatus should meet
or provide some or all of the technical requirements set out in
the Appendices of the draft Supplemental Agreement attached to
NGC's standard form terms of offer and may propose that the
Applicant's Plant or Apparatus should have the capability to
provide Agreed Ancillary Services.
10 Please complete this application form in black print and
return it duly signed to [name of contact] at the Commercial
Department, NGC, National Grid House, Sumner Street, London, SE1
9JU (Telephone No. [ ]).
USE OF SYSTEM APPLICATION
1. We hereby apply to use the NGC Transmission System from our
connection to [ ] Distribution System.
2. We will promptly inform NGC of any change in the information
given in this Application as quickly as practicable after
becoming aware of any such change.
3. If we have not already signed a Master Agreement or Accession
Agreement we undertake for the purposes of this Application to be
bound by the terms of the Grid Code from time to time in force
and to sign an Accession Agreement.
Signed:
.................................................
For and on behalf of the Applicant
Date:...................................
APPLICATION FOR USE OF SYSTEM
A. DETAILS OF APPLICANT
1. Name:
................................................................
................................................................
2. Address:
................................................................
................................................................
................................................................
3. Registered Office/Address:
................................................................
................................................................
................................................................
................................................................
4. Name, title and address of contacts for the purposes of this
application, giving description of the field of responsibility
of each person:
................................................................
................................................................
................................................................
5. If Applicant is an agent, please give name(s) and
address(es) of person(s) for whom the Applicant is acting:
................................................................
................................................................
................................................................
B. THE PROPOSED POINT OF CONNECTION TO A DISTRIBUTION SYSTEM
1. Please identify (preferably by reference to an extract from
Ordnance Survey Map) the intended location of the Plant and
Apparatus ("the User Development") which it is desired should be
connected to the Distribution System.
.................................................................
.................................................................
.................................................................
.................................................................
.................................................................
.................................................................
.................................................................
.................................................................
2. If you believe that a new sub-station will be needed, please
indicate by reference to a plan your suggested location for it.
.................................................................
.................................................................
.................................................................
.................................................................
.................................................................
.................................................................
3. Please provide details of the values and methods of
calculation of liquidated damages to be payable by NGC if any
proposed NGC Reinforcement Works are delayed or not completed
through NGC's fault.
.................................................................
.................................................................
.................................................................
.................................................................
.................................................................
.................................................................
C. TECHNICAL INFORMATION
1. Please provide the data listed in Part 1 of the Appendix to
the Planning Code. Note: the data concerned form part of the
Planning Code and Data Registration Code. Applicants should refer
to these sections of the Grid Code for an explanation.
2. Please provide a copy of your Safety Rules if not already
provided to NGC.
3. Please indicate any terms which you are prepared to offer
for:
(a) Black Start Capability
(b) Gas Turbine Unit Fast Start
(c) Synchronous Compensation
(d) Pumped Storage Unit Spinning-in-Air
(e) Pumped Storage
(f) Pumped Storage Plant Fast Start from Standstill
(g) Demand Reduction
(h) Adjustment to Pumped Storage Unit Pumping Programme
(i) Hot Standby
D. PROGRAMME
Please provide a suggested construction on programme in bar chart
form for the construction works necessary to install the User
Development indicating the anticipated date when the connection
will be required to be made.
EXHIBIT 10
USE OF SYSTEM APPLICATION (SUPPLIERS)
NOTES
PLEASE STUDY THE FOLLOWING NOTES BEFORE COMPLETING AND SIGNING
THIS APPLICATION FORM.
1. NGC requires the information requested in this application
form for the purposes of preparing an offer (.the Offer.) to
enter into an agreement for use of the NGC Transmission System in
accordance with Condition 10(B) of the NGC Transmission Licence.
It is essential that the Applicant should supply all information
requested in this application form and that every effort should
be made to ensure that such information should be accurate.
Please note that certain expressions which are used in this
application form are defined in the glossary of definitions
(contained in Schedule 2 to the Master Agreement) and when this
occurs the expressions have capital letters at the beginning of
each word.
2. Should NGC consider that any information provided is
incomplete or unclear or should NGC require further information
in order that it may prepare the Offer, the Applicant will be
requested to provide further information or clarification.
3. Should there be any change in any information provided by the
Applicant after it has been submitted to NGC, the Applicant must
immediately inform NGC of such a change.
4. The effective date upon which the application is made shall
be the date when NGC is reasonably satisfied that the Applicant
has completed Sections A and B. NGC shall notify the Applicant of
such date.
5. NGC will make the Offer in accordance with to the terms of
Clauses 11 and 12 of the Master Agreement and the NGC
Transmission Licence.
6. NGC will make the Offer as soon as is reasonably practicable
and in any event within 3 months of the effective date of the
application or such later period as the Director agrees to.
7. If the Applicant has not already entered into a Master
Connection and Use of System Agreement with NGC the Applicant
will be required as part of this Application Form to undertake
that he will comply with the provisions of the Grid Code for the
time being in force. Copies of the Grid Code and the Master
Connection and Use of System Agreement are sent with this
application form and the Applicant is advised to study them
carefully. Further copies are
8. Please complete this application form in black print and
return it duly signed to [name of contact] at the Commercial
Department, NGC, National Grid House, Sumner Street, London, SEI
9JU (Telephone No.
[ ] ).1.
USE OF SYSTEM APPLICATION
1. We hereby apply to use the NGC Transmission System.
2. We will promptly inform NGC of any change in the information
given in this Application as quickly as practicable after
becoming aware of any such change.
3. If we have not already signed a Master Agreement or
Accession Agreement we undertake for the purposes of this
Application to be bound by the terms of the Grid Code from time
to time in force and to sign an Accession Agreement.
Signed:
..................................................
For and on behalf of the Applicant
Date: ....................................
NGC - APPLICATION FOR A NEW CONNECTION
A. DETAILS OF APPLICANT
1.
Name:.....................................................
..........................................................
.................
..........................................................
..........................................................
...........................
2.
Address:..................................................
..........................................................
................
..........................................................
..........................................................
...........................
..........................................................
..........................................................
...........................
3. Registered Office/Address:
..........................................................
..........................................................
...........................
..........................................................
..........................................................
...........................
..........................................................
..........................................................
...........................
..........................................................
..........................................................
...........................
4. Name, title and address of contacts for the purposes
of this application, giving
description of the field of responsibility of each person:
..........................................................
..........................................................
...........................
..........................................................
..........................................................
...........................
..........................................................
..........................................................
...........................
..........................................................
..........................................................
...........................
5. If Applicant is an agent, please give name(s) and
address(es) of person(s) for whom the Applicant is acting:
..........................................................
..........................................................
...........................
..........................................................
..........................................................
...........................
..........................................................
..........................................................
...........................
..........................................................
..........................................................
...........................
B. DATA REQUIREMENTS
Please provide the data required under Appendix E, A, C
and D as appropriate of Supplemental Agreement Type 5 upon
which our terms of offer of use of system will be based.
EXHIBIT 11
MODIFICATION APPLICATION
NOTES
PLEASE STUDY THE FOLLOWING NOTES BEFORE COMPLETING AND SIGNING
THIS APPLICATION FORM.
1. NGC requires the information requested in this application
form for the purposes of preparing an offer ("the Offer") of
terms for the construction of a proposed Modification and for
the variation of the existing Supplemental Agreement covering
the Connection Site affected by the Modification. It is
essential that the Applicant should supply all information
requested in this application form and that every effort should
be made to ensure that such information should be accurate.
Please note that certain expressions which are used in this
application form are defined in the glossary of definitions
(contained in Schedule 2 to the Master Agreement) and when this
occurs the expressions have capital letters at the beginning of
each word.
2. Should NGC consider that any information provided is
incomplete or unclear or should NGC require further information
in order that it may prepare the Offer, the Applicant will be
requested to provide further information or clarification.
3. Should there be any change in any information provided by the
Applicant after it has been submitted to NGC, the Applicant
must immediately inform NGC of such a change.
4. NGC shall charge the Applicant and the Applicant shall pay to
NGC NGC's Engineering Charges in relation to the application.
An advance will be charged by NGC which will be reasonable in
all the circumstances. No application will be considered until
such advance has been paid. The balance of the NGC Engineering
Charges shall be notified and invoiced by NGC to the Applicant
together with a breakdown of such charges and the Applicant
shall pay the same within 28 days of the date of NGC's invoice.
If NGC does not make an Offer to the Applicant in accordance
with the NGC Transmission Licence otherwise than by reason of
withdrawal of the application by the Applicant NGC will return
the charges to the Applicant. NGC will deduct from the
Connection Charges and/or Use of System Charges payable during
the first 3 years following the Practical Completion Date of
the Modification any NGC Engineering Charges paid by the
applicant in 3 equal instalments. In the event that the advance
and any other payments exceed the appropriate NGC Engineering
Charges the excess shall be repaid forthwith to the Applicant.
5. The effective date upon which the application is made shall be
the later of the date when NGC has received the application fee
under Paragraph 4 above and the date when NGC is reasonably
satisfied that the Applicant has completed Sections A-D. NGC
shall notify the Applicant of such date.
6. NGC will make the Offer in accordance with the terms of
Clauses 10 and 12 of the Master Agreement and the NGC
Transmission Licence.
7. NGC will make an Offer as soon as is reasonably practicable
and in any event within 3 months of the effective date of the
application or such later period as the Director agrees to. The
Offer may, where it is necessary to carry out additional; I
extensive system studies to evaluate more fully the impact of
the proposed development, indicate the areas that require more
detailed analysis. Before such additional studies are required,
the Applicant shall indicate whether it wishes NGC to undertake
the work necessary to proceed to make a revised offer within
the 3 month period or, where relevant the timescale consented
to by the Director. To enable NGC to carry out any of the above
mentioned necessary detailed system studies the Applicant may,
at the request of NGC, be required to provide some or all of
the Detailed Planning Data listed in Part 2 of the Appendix to
the Planning Code which is part of the Grid Code.
8. Data submitted pursuant to this application shall be deemed
submitted pursuant to the Grid Code.
9. NGCs Offer will to the extent appropriate be based upon its
standard form terms of Modification Offer a copy of which is
attached and the statement of charges issued by NGC under
Condition 10 of NGCs Transmission Licence. The Applicant should
bear in mind NGCs standard form terms of offer when making this
application.
10. Please complete this application form in black print and
return it duly signed to [name of contact] at the Commercial
Department, NGC, National Grid House, Sumner Street, London,
SKI 9JU (Telephone No. []).
MODIFICATION APPLICATION
1. We hereby apply to modify our connection to the NGC
Transmission System at [ ] Connection Site. We agree to
pay NGCs Engineering Charges on the terms specified in the
Notes to the Connection Application.
2. We will promptly inform NGC of any change in the information
given in this Application as quickly as practicable after
becoming aware of any such change.
Signed:
____________________________
For and on behalf of the Applicant
Date: ______________________
MODIFICATION- APPLICATION
A.DETAILS OF APPLICANT
1. Name:
___________________________________________________ -
_____________________________
2. Address:
_________________________________________________ -
_________________________________________________ -
________________________________________________ -
_________________________________________________ -
___________
3. Registered Office/Address:
_________________________________________________________
_ -
_________________________________________________________
_ -
_________________________________________________________
_ -
_________________________________________________________
_ -
____________
4. Name, title and address of contacts for the purposes
of this application, giving description of the field
of responsibility of each person:
____________________________________________________
-
____________________________________________________
-
____________________________________________________
-
____________________________________________________
- -
____________________________________________________
-
____________________________________________________
-
_________________
5. If Applicant is an agent, please give name(s) and
address(es) of person(s) for whom the Applicant is
acting:
____________________________________________________________ -
____________________________________________________________ -
_____________________________________________________________ -
_____________________________________________________________ -
____________________
B. THE CONNECTION SITE TO BE MODIFIED
1. Please identify by name the Connection Site at which the
Modification is to be undertaken.
_______________________________________________________________________ -
_______________________________________________________________________ -
_______________________________________________________________________ -
________________
2. Give details of the rights in any additional land which you
are proposing to acquire at the Connection Site (to include
leasehold and freehold interests) so as to undertake the
modification.
_____________________________________________________________________ -
____________________
3. What space is available on the Connection Site for working
storage and accommodation areas for NGC contractors? If so,
please indicate by reference to a plan the location of such
areas, giving the approximate dimensions of the same.
_____________________________________________________________________ -
_____________________________________________________________________ -
_________________
4. Please provide details (including copies of any surveys or
reports) of the physical nature of any additional land the
subject to your answer to Question 2 above including the
nature of the ground and the sub-soil including the results
of the following tests:-
[NGC to specify]
_____________________________________________________________________ -
___________________________________________
5. Please give details and provide copies of all existing
relevant planning and other consents (statutory or
otherwise) held by you relating to the Connection Site or
the Modification and/or details of any pending applications
for the same.
______________________________________________________________________ -
_______________________________________________________________________
_______________________________________
6. Please provide details of the values and methods of
calculation of liquidated damages to
be payable by NGC if the proposed works are delayed or not
completed through NGC's
fault.
______________________________________________________________________ -
_______________________________
7. Please indicate what, if any, of the necessary
construction works necessary for the Modification you
would like NGC to conduct upon your behalf.
C. TECHNICAL INFORMATION
1. Please provide full details of the proposed
Modification together with the relevant Standard
Planning Data as listed in Part I of the Appendix to
the Planning Code to the extent that the data will
change from previously submitted Committed Project
Planning Data or Connected Planning Data as a result
of the proposed Modification. Note: the data
concerned form part of the Planning Code and Data
Registration Code. Applicants should refer to these
sections of the Grid Code for an explanation.
D. PROGRAMME
Please provide a suggested construction programme in
bar chart form for the construction works necessary
to install the Modification (not the NGC Assets
needing to be installed) indicating the anticipated
date when the connection will be required to be made.
EXHIBIT 12
MODIFICATION OFFER
Date: [ ]
Dear Sirs,
We refer to your application dated [ ] for a Modification
for your proposed development at [ ] and to [here list
other documents submitted by applicant in support of his
application together with any relevant NGC communications
relating to the application] and now set out below our offer for
the Modification. Please note that certain expressions which are
used in this offer are defined in the glossary of definitions
(contained in Schedule 2 to the Master Agreement) and when this
occurs the expressions have capital letters at the beginning of
each word.
1. NGC offers to enter into an agreement covering the
construction of the Modification in the terms set out in
Section A and to vary the Supplemental Agreement covering
the Connection Site as specified in Section B.
2. This offer has been prepared upon the basis that you have or
will obtain the legal estate which you expressed as your
intention in the said application in the land described in
Section C.
3. If so indicated by a tick in the relevant box you are
required to enter into a bond in the sum of [ ] pounds in a
form approved by NGC such approval not to be unreasonably
withheld or delayed.
4. The technical conditions with which you must comply as a
term of this offer are set out in the Grid Code. Additional
or different technical conditions set out in the Appendices
to the Supplemental Agreement are set out in Section A
and/or Section B.
5. This offer is open for acceptance according to the terms of
Clause 10 of the Master Agreement and the Transmission
Licence. Please note your right to make an application to
the Director to settle the terms of the Offer pursuant to
Condition 10CI of the Transmission Licence.
6. To accept this offer, please execute and return the
agreements attached to this offer as Section A and Section
B. Subject to the provisions of paragraph 7 above NGC will
then itself execute the Agreement(s). THE AGREEMENTS ARE
ONLY EFFECTIVE IN ACCORDANCE WITH THEIR TERMS ONCE THEY HAVE
BEEN EXECUTED BY NGC.
7. All communications in relation to this offer must, in the
first instance, be directed to the Commercial Department of
NGC for the attention of [description].
Yours faithfully,
________________
for and on behalf of
The National Grid Company PLC
SECTION A
AGREEMENT FOR CONSTRUCTION WORKS
SECTION B
FORM OF VARIED SUPPLEMENTAL AGREEMENT
SECTION C
USERS LAND
EXHIBIT 13
MODIFICATION NOTIFICATION
1. This Modification Notification is issued by NGC pursuant to
Clause 10.3.1 to the Master Agreement. The User has certain
rights under Clause 10.3 and is advised to consider whether
it wishes to avail itself to such rights upon receipt of
this Modification Notification.
2. NGC proposes to make the Modification to the NGC
Transmission System set out below:-
3. NGC reasonably believes that you may have to carry out the
following works as a result of the proposed Modification:-
4. The latest date upon which you may apply to the Director
under Condition 10C of the Transmission Licence is [date: to
be supplied by NGC, subject to Clause 10.3.2 of the Master
Agreement.]
Dated:
Signed for and on behalf of
The National Grid Company Plc
DATED ______________ 1990
THE NATIONAL GRID COMPANY PLC (1)
and
_______________________________ (2)
AGREEMENT FOR PAYMENT BY NGC FOR ANCILLARY SERVICES
NOTE: THIS IS A "STANDARD FORM" FOR ALL ANCILLARY SERVICES AND
WILL REQUIRE AMENDMENT TO REFLECT THE ACTUAL SERVICES PROVIDED BY
THE GENERATOR IN QUESTION
CONTENTS
Clause Title
1. Definitions and Interpretation
2. Commencement and Term
3. Reactive Power
4. Future Method of Paying for Reactive Energy
5. Canceled Starts
6. Hot Standby
7. Frequency Response
8. Black Start Capability
9. Payment
10. Limitation of Liability
11. Metering
12. Termination
13. Assignment
14. Confidentiality for NGC and its Subsidiaries
15. Confidentiality for the Generator
16. Additional Costs
17. Waiver
18. Notices
19. Counterparts
20. Variations
21 Dispute Resolution
22. Jurisdiction
23. Governing Law
24. Severance of Terms
25. Entire Agreement
Schedule A Term of the Agreement for Commercial Ancillary Services
and periods of notice
Schedule B Form of Amending Agreement
Schedule C Charging Principles
Schedule D Reactive Power
Schedule E Frequency Response
Schedule F Fast Starts and Load Reduction
Schedule G Black Start
Schedule H Notices
Schedule I Indexation Formulae
Schedule J Definitions
Schedule K Canceled Start and Hot Standby
THIS AGREEMENT is made the day of 1990
BETWEEN: -
THE NATIONAL GRID COMPANY PLC a company registered in England with
Number 2366977 whose registered office is at national Grid House,
Sumner Street, London SE1 9JU ("NGC" which expression shall
include its permitted successors and/or assigns).
[NP] [POWERGEN] [PUMPED STORAGE] [NUCLEAR ELECTRIC] [OTHERS]
....(the "Generator" which expression shall include its permitted
successors and/or assigns).
WHEREAS:-
For the purposes of the operation and use of the NGC Transmission
System, the Grid Code the Master Connection Agreement and the
Supplemental Agreements require that certain Ancillary Services be
provided by the Generator.
NGC has agreed to pay for such Ancillary Services at the rates and
prices and in the manner hereinafter set out.
NOW IT IS HEREBY AGREED as follows:-
DEFINITIONS AND INTERPRETATION
In this Agreement unless the subject matter or context otherwise
requires or is inconsistent therewith, the definitions set out in
Schedule J shall apply.
In this Agreement:-
except where the context otherwise requires, references to a
particular Sub-Clause, Clause, Paragraph or Schedule shall be a
reference to that Sub-Clause, Clause, Paragraph or Schedule in or
to this Agreement;
the table of contents and headings are inserted for convenience
only and shall be ignored in construing this Agreement;
references to the words "include" or "including" are to be
construed without limitation; except where the context otherwise
requires, any reference to 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;
references to the masculine shall include the feminine and
references in the singular shall include references in the plural
and vice versa;
except where the context otherwise requires, any reference to 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.
COMMENCEMENT AND TERM
This Agreement shall come into effect on the Effective Date and
shall continue in force and effect as follows: -
in respect of System Ancillary Services until terminated pursuant
to the terms of this Agreement;
in respect of Commercial Ancillary Services, for the respective
period or periods from the Effective Date shown in Schedule A for
the particular Generating Units and Ancillary Services there set
out unless in any case terminated earlier pursuant to the terms of
this Agreement.
If at any time after the Effective Date the Parties enter into a
Supplemental Agreement in relation to a New Connection Site or a
variation to a Supplemental Agreement following a Modification to
an existing Connection Site which in either case (either by
agreement or pursuant to an obligation under the Grid Code)
requires the Generator to provide Ancillary Services of any kind
to NGC, the Parties shall at the same time enter into an agreement
in the form set out in Schedule B amending this Agreement to
reflect the terms agreed as to the payments to be made by NGC for
the Ancillary Services concerned.
At least three months prior to the date when this Agreement
expires by effluxion of time in respect of any Commercial
Ancillary Service from a Generating Unit, the Parties shall
discuss the price payable and the period for which such price will
be payable for such and Ancillary Service with effect from such
date. Provided that the Parties reach agreement prior to such
date this Agreement will be amended accordingly; otherwise this
Agreement will expire in respect of that Commercial Ancillary
Service from the Generating Unit concerned on such expiry date.
Price Adjustment
The rates, prices and indexation formulae set out in this
Agreement for System Ancillary Services shall be reviewed as at
and (if appropriate) adjusted as from each Review Date during the
term of this Agreement.
The Parties shall endeavour to agree the amount of any such
adjustment to the rates and prices and any adjustment to the
indexation formulae and in endeavouring to agree such adjustments
they shall have regard to the Charging Principles set out in
Schedule C.
If the adjustment to the rates, prices or indexation formulae
shall not have been so agreed between the Parties three months
before the Relevant Review Date (whether through failure or
omission to agree or to negotiate or to initiate any negotiations
or any other cause) either Party may at any time (whether before
or after the Relevant Review Date) by notice in writing to the
other party require any adjustment not so agreed to be determined
by arbitration pursuant to Clause 21.
If any adjustment to the rates, prices and indexation formulae (or
any of them) has not been ascertained (by agreement or
determination) by the Relevant Review Date in accordance with the
provisions of Sub-Clauses 2.4 to 2.6, NGC shall pay to the
Generator for any interval between the Relevant Review Date and
the date when such rates, prices or indexation formulae have been
ascertained as aforesaid sums for Ancillary Services calculated at
the corresponding rates and prices applicable during the period
immediately preceding the Relevant Review Date. Upon any
adjustment to the rates, prices and indexation formulae (or any of
them) being ascertained as aforesaid any additional amount or
reduced amount payable or repayable for the period commencing on
the Relevant Review Date and ending on the date when the rates,
prices or indexation formulae concerned shall have been
ascertained shall be paid by NGC to the Generator (or deducted by
NGC from the sum otherwise due to the Generator) together with
interest on the additional amounts which would have been payable
(or the amounts by which the payments would have been reduced) had
the adjustment been ascertained at the Relevant Review Date at the
rate applicable to overdue payments provided in Clause 9.
On each occasion that the rates, prices and indexation formulae
are ascertained pursuant to the provisions of this Clause, the
Parties shall enter into an amending agreement in the form set out
in Schedule B recording the revised rates, prices and indexation
formulae so ascertained.
Save in respect of System Ancillary Services in a year when rates
and prices are to be reviewed under Sub-Clauses 2.4 to 2.7, the
rates and prices set out in this Agreement shall be adjusted as at
and as from 1st April each year ("the Indexation Date") or at such
other intervals and as at and as from such other dates as NGC may
in its sole discretion agree during the term of this Agreement.
Such adjustment shall be calculated by the application of the
formulae set out in Schedule I.
REACTIVE POWER
Subject to Sub-Clauses 3.9 and 3.10, NGC shall pay the Generator
for producing Reactive Power from a Generating Unit in accordance
with the Grid Code SDC the sums calculated by reference to the
amounts shown in Schedule D Part 1 in relation to that Generating
Unit.
The Parties agree that the provision of Sub-Clause 3.1 represent
an interim arrangement for paying for Reactive Power pending
implementation of the payment regime referred to in Clause 4.
Synchronous Compensation
Subject to Clause 3.13, NGC shall pay the Generator for producing
Reactive Power by means of Synchronous Compensation in accordance
with instructions issued under the Grid Code SDC (in addition to
the sum payable under Clause 3.1) the following amounts for each
Generating Unit:-
in respect of each Synchronous Compensation Start-Up of the
Generating unit concerned a sum equal to the Start-Up Price
contained in the Generator's Generation Offer prices for the
Schedule Day in which the Start-Up for Synchronous Compensation
occurs; and
an amount calculated by reference to the figures in Schedule D
Part 2 for the operating time spent in response to the instruction
for Synchronous Compensation, being the time expressed in minutes
from Synchronisation to Desynchronisation.
Opportunity Costs
As soon as the Generator becomes aware that any Generating Unit
falls below the standard of Reactive Power capability required by
the Grid Code, or where relevant, the capability specified in the
applicable Supplemental Agreement, the Generator may notify NGC in
writing to that effect. In that event the Parties shall discuss
the matter and the Generator shall submit in writing to NGC for
approval the date and time by which the Generator shall have
brought the Generating Unit concerned to a condition where it
complies with such Reactive Power capability. NGC shall not
unreasonably withhold or delay its approval of the Generator's
proposed date and time. Should NGC not approve the Generator's
proposed date or time (or any revised proposal) the Generator
shall amend such proposal having regard to any comments NGC may
have made and re-submit it for approval.
If, in consequence of the approval by NGC of any proposal made by
the Generator pursuant to the Grid Code OC 5.5.1.8 or Sub-Clause
3.4, the Generator shall take or keep a Generating Unit out of
service for any period other than:-
(a) an outage period identified pursuant to the Grid Code OC 2 as
at the time when:-
the default was first notified to NGC under Sub-Clause 3.4; or
the Generating Unit concerned was determined pursuant to the Grid
Code OC 5.5.1.8 not to have the Reactive Power capability required
by the Grid Code or, where relevant, the capability specified in
the applicable Supplemental Agreement; or
(b) any adjustment by up to four weeks of such previously
identified outage period without affecting the duration of such
period; or
(c) the period first requested by the Generator under OC 5.5.1.8
or Sub-Clause 3.4, for the purpose of the repair, maintenance,
renewal, modification or replacement of equipment needed to enable
the Generator to comply with the terms of the approved proposal,
NGC shall pay to the Generator 50 percent of the amount of any
opportunity costs the Generator may incur as a direct result of
the Generating Unit being out of service for the period concerned.
If the Generator intends to carry out any work of repair,
maintenance, renewal, modification or replacement ("the Concurrent
Work") other that the repair, maintenance, renewal, modification
or replacement referred to in Sub-Clause 3.5 in connection with
the Generating Unit concerned during the period referred to and
for the purposes referred to in Sub-Clause 3.5, it shall forthwith
notify NGC of such intention. If the carrying out of the
Concurrent Work is likely to reduce the length of any outage
identified pursuant to the Grid Code OC 2 as at the time referred
to in Sub-Sub-Clause 3.5(a) for the Generating unit concerned, the
sum payable to the Generator under Sub-Clause 3.5 shall be reduced
by such sum as is equal to 50 percent of the net present value of
the forecast opportunity cost saving, as determined, in the
absence of agreement, by arbitration in accordance with Clause 21.
The opportunity costs for each day of any outage referred to in
Sub-Clause 3.5 (and to which the percentage figure referred to
shall be applied) shall be calculated in the following manner:-
If "N" is non-zero, calculate the average bid price ("ABP") during
the Reference Period:-
FORMULA
RP is the sum over all Settlement Periods during the Reference
Period for which Genset Declared Availability (XAij) is not zero;
"N" is the number of such Settlement Periods where XAij is non-
zero;
If "M" is non-zero, calculate the Average Genset Price ("AGSP")
during the Reference Period.
FORMULA
RP is the sum over all Settlement periods during the Reference
Period for which Genset Unconstrained Generation (Uij) is not
zero;
"M" is the number of such Settlement Periods where Uij is non-
zero; Calculate opportunity costs ("OC") in accordance with the
appropriate one of the following formulae:-
if M equals zero and N equals zero for the Reference Period;
FORMULA
if M equals zero and N does not equal zero for the Reference
Period;
FORMULA
if M does not equal zero for the Reference Period;
FORMULA
In this Sub-Sub-Clause 3.7(c) means the sum over all Settlement
Periods of any
j
Settlement Day that the Generating unit concerned is out of
service.
(d) In this Sub-Clause the following terms shall have the
following meanings:-
"Genset Bid Price" the meaning attributed to it in the Pool
Rules;
"Genset Price" the meaning attributed to it in the Pool Rules;
"GRC" MW rating of the Generating Unit concerned as
recorded under the Data Registration Code of the Grid Code;
"i" refers to a Generating Unit;
"j" refers to an integrated value over a Settlement
Period;
"LOLP" Loss of Load Probability as defined in the Pool
Rules;
"max" the value of the largest data item in that set;
"Reference Period" a period of 30 Settlement Days immediately
before notification under Sub-Clause 3.4 or the date when the
Generating unit first failed to pass the Reactive Power Test
under the Grid Code;
"SMP" System Marginal Price as defined in the Pool
Rules;
"SPD" Settlement Period Duration, being the duration in
decimal hours of a standard Settlement Period;
"VLL" Value of Lost Load as defined in the Pool Rules.
The parties agree that there is no presumption arising from the
foregoing that Sub-Clauses 3.4 to 3.7 inclusive shall apply to
Generating Units not listed in Schedule D, Part 1.
Default by Generator
If a Generating Unit fails to provide Reactive Power in accordance
with instructions issued under the Grid Code, then subject to Sub-
Clause 3.10 the Generator shall not be entitled to payment under
Sub-Clause 3.1 for the Generating Unit concerned in respect of the
half hour when the failure occurred.
If the failure by the Generator to provide Reactive Power in
accordance with instructions issued under the Grid Code shall be a
partial failure, NGC shall pay to the Generator for the Generating
Unit concerned in respect of the half hour when the failure
occurred the sum payable under Sub-Clause 3.1 reduced by the
application of the following formula:-
FORMULA
where "registered MV AR" = MV Ar capacity of the
Generating Unit concerned at GRC
(as defined in Sub-Clause 3.7)
taken from the charts submitted by
the Generator pursuant to the Grid
Code OC 2.4;
"Actual MV Arh" = the recorded half hourly integrated
MV Ar output for the Generating
Unit concerned averaged between the
two sets of data referred to in
Sub-Sub-Clauses 3.11(a) and (b)
respectively or if only one set of
such data is available, that set.
The failure or partial failure referred to in Sub-Clauses 3.9 and
3.10 shall be deemed to have occurred if:-
NGC Control Room Voltage and MV Ar metering; and
readings from Power Station voltage and MV Ar metering,
show that:-
voltage was below the target voltage (to an accuracy of 0.5
percent) instructed pursuant to the Grid Code or the Generating
unit concerned was instructed to full lagging Reactive Power
output and the lagging Reactive Power output (to an accuracy of 5
percent) was less than the Registered MV Ar; or
voltage was above the target voltage (to an accuracy of 0.5
percent) instructed pursuant to the Grid Code of the Generating
Unit concerned was instructed to full leading Reactive power
output and the leading Reactive Power output (to an accuracy of 5
percent) was less than the Registered MV Ar.
NGC shall have the right at any time to call for the prompt
production of the data referred to in Sub-Sub-Clause 3.11(b) upon
production of NGC's own data indicating that a failure or partial
failure to provide Reactive Power has occurred.
If the Generator fails to provide any Reactive Power within ten
minutes of the time of an instruction to provide Reactive Power by
means of Synchronous Compensation NGC shall forthwith notify the
Generator to that effect and the Generator shall be deemed to have
failed to comply with the instruction and shall not be entitled to
any payment under Sub-Sub-Clause 3.3(i).
NGC's right to withhold or reduce payment shall be NGC's sole
remedy against the Generator under this Agreement in respect of
failure to provide Reactive Power but shall be without prejudice
to any other rights NGC may have against the Generator under the
Grid Code and/or the Master Connection Agreement and/or any
Supplemental Agreement.
FUTURE METHOD OF PAYING FOR REACTIVE ENERGY
The Parties agree that, as from the end of a period of six months
following the FMS Date, or as from the next Review Date following
the FMS date if this be earlier, the monthly payment provided for
by Clauses 3.1 and 3.3 will be replaced by a charge based upon the
metered output (to the extent instructed and to accuracies to be
agreed) of Reactive Energy from that Generating Unit, adjusted as
appropriate to derive the Reactive Energy delivered to the NGC
Transmission System or the relevant User System as the case may
be. The charge shall be calculated in accordance with the
following formulae:-
For Lagging Reactive Energy:-
FORMULA
"y" means the payment in pounds per half hour for Lagging
Reactive Energy;
"a" means a sum to be agreed between NGC and the Generator; and
"x" means 2 x half hourly integrated lagging MV Ar output
----------------------------------------------------
- --------
maximum lagging MV Ar output at rated MW
For Leading Reactive Energy:-
FORMULA
"z" means the payment in pounds per half hour for leading
Reactive Energy;
"B" means a sum to be agreed between NGC and the Generator;
"w" means 2 x half hourly integrated leading MV Ar
output
----------------------------------------------------------
maximum leading MV Ar output at rated MW
The Parties will negotiate with a view to agreeing the detailed
calculations for the new payment having regard to the Charging
Principles set out in Schedule C. If agreement is reached,
Clauses 3 and 4 and Schedule D will be amended accordingly. If
the Parties are unable to reach agreement with 28 days of either
Party serving on the other notice of its intention to refer the
matter to arbitration either Party may refer the matter to
arbitration for determination pursuant to Clause 21.
CANCELLED STARTS
In this Clause and in Clause 6 the following terms shall have the
following meanings:-
"NTS" at any time, the appropriate period (in minutes) required to
Synchronise as notified by the Generator to NGC in accordance with
the Grid Code DRC:
"NTS Start Time" the point in time calculated by subtracting NTS
from t2;
"t1" the time, given in the instruction to come to Hot Standby,
when the state of Hot Standby is to be achieved;
"t2" the time specified in an instruction to Synchronise, at which
readiness to Synchronise is to be achieved;
"t3" the time when the Cancellation Instruction was issued;
"SUP" the Start-Up Price bid by the Generator for the Generating
Unit in questions for the Schedule Day when the Cancellation
Instruction was issued;
"H" the factor (expressed as a decimal and set out in schedule K,
Part 2) by which the Start-Up Price bid by the Generator for the
Generating Unit in question for the Schedule Day is multiplied to
derive the price of operating at Hot Standby;
"T" the period in minutes to be taken to achieve readiness to
Synchronise notified by the Generator to NGC and specified in the
instruction to come to Hot Standby.
Where NGC issues a Cancellation Instruction before NTS Start Time
or where the Cancellation Instruction is followed within 2 minutes
by an instruction which has the effect of cancelling the
Cancellation instruction, no payment shall be due to the Generator
in respect of a Cancelled Start.
If NGC issues to the Generator a Cancellation Instruction within
the period before Synchronisation set out in Schedule K, Part 1
for the Generating Unit concerned, the Cancellation Instruction
shall be deemed not to have been given and no payment for
Cancelled Start shall be due to the Generator under this
Agreement.
Subject to Sub-Clause 5.5, where NGC issues a Cancellation
Instruction on or after NTS Start Time, NGC shall pay the
Generator, for each such Cancellation Instruction with which the
Generator complies an amount calculated as follows:-
FORMULA
If, following a Cancellation Instruction the Generating Unit
supplies Active Power in the absence of any other instruction
issued to the Generator which would result in the Generating Unit
concerned supplying Active Power at that time, the Generator shall
be deemed to have failed to comply with the Cancellation
Instruction and shall not be entitled to any payment under Sub-
Clause 5.3 in respect of the Generating Unit concerned.
NGC's right to withhold payment shall be NGC's sole remedy against
the Generator under this Agreement in respect of failure to comply
with a Cancellation Instruction but shall be without prejudice to
any other rights which NGC may have against the Generator under
Grid Code and/or the Master Connection Agreement and/or any
Supplemental Agreement.
HOT STANDBY
Subject to Sub-Clause 6.4, where NGC issues an instruction to come
to Hot Standby followed by an instruction to Synchronise, NGC
shall pay to the Generator for complying with such instructions a
sum calculated as follows:-
FORMULA
Where NGC issues an instruction to come to Hot Standby followed by
an instruction cancelling Hot Standby after Hot Standby has been
reached NGC shall pay to the Generator for complying with such
instruction a sum calculated as follows:-
FORMULA
Where NGC issues an instruction to come to Hot Standby followed by
an instruction cancelling Hot Standby before Hot Standby is
reached, NGC shall pay to the Generator for complying with such
instruction a sum calculated as follows:-
FORMULA
In the case of an instruction to come to Hot Standby followed by
an instruction to Synchronise, if the Generating Unit concerned
fails to Synchronise within five minutes of the end of the period
specified in the instruction to come to Hot Standby the Generator
shall be deemed to have failed to comply with the instruction to
come to Hot Standby and shall not be entitled to any payment under
Sub-Clause 6.1 in respect of the Generating Unit concerned.
NGC's right to withhold payment shall be NGC's sole remedy against
the Generator under this Agreement in respect of failure to comply
with instructions relating to Hot Standby but shall be without
prejudice to any other right which NGC may have against the
Generator under the Grid Code and/or the Master Connection
Agreement and/or any Supplemental Agreement.
FREQUENCY RESPONSE
Payment for Frequency Sensitive Generation
Subject to Sub-Clause 7.4, NGC shall pay to the Generator for
operating a Generating Unit in:-
Primary Response mode; or
Primary and Secondary Response mode; or
Primary and Secondary Response and Five Minute Reserve mode; or
Secondary Response and Five Minute Reserve; or
Five Minute Reserve mode;
in accordance with instructions issued to it under the Grid Code
SDC a sum calculated in accordance with the figures set out in the
relevant column of Schedule E for each Generating Unit for the
period expressed in minutes that the Generator is so operating.
The Parties acknowledge and agree that the values for Loading,
Response and Reserve given in the Schedule E are interim values
only and are to necessarily the values achievable at the prices
given in the Schedule. The Parties shall endeavour to agree such
values within 12 months of the Effective Date. If the Parties are
unable to reach agreement within that period, either party may by
notice in writing to the other party at any time after the end of
such period, refer the matter to arbitration pursuant to Clause
21. As soon as the relevant figures have been agreed or
determined in accordance with the foregoing, they shall be
substituted for the corresponding figures in Schedule E with
effect from the date of such agreement or determination.
Where in any Settlement Period a Generating Unit generates Energy
at or above its Offered Availability for that Settlement Period
but has not been instructed by NGC to provide Primary Response,
Secondary Response or Five Minute Reserve or any combination of
these three, no payment for Frequency Response shall be due to the
Generator in respect of that Settlement period.
Where in any Settlement Period a Generating unit is operating in
Frequency Sensitive Mode at an instructed level below its Offered
Availability but has not been instructed by NGC to provide Primary
Response, Secondary Response or Five Minute Reserve or any
combination of these three for that Settlement period, NGC shall
pay the Generator the sum which would be payable to the Generator
for that Settlement Period in respect of that Generating Unit had
NGC instructed that Generating Unit to operate in Primary Response
Mode.
If a Generating Unit fails (as measured by OC5.5.2 of the Grid
Code or by routine testing and/or monitoring procedures to be
agreed by NGC and the Generator) to provide whether automatically
(MW/Hz) or by manual instruction the level of response specified
in Schedule E for the MW loading instructed for that Generating
Unit when operating in any of the modes set out in Sub-Clause 7.1,
NGC shall pay to the Generator in respect of the Settlement Period
in which such failure shall occur, the same proportion of the sum
payable under Sub-Clause 7.1 as the actual level of response bears
to the level of response specified in Schedule E for that
Generating unit.
Each Party shall use its best endeavours to put in place as soon
as is reasonably possible such routine testing and/or monitoring
procedures as are appropriate to the purposes of Sub-Clause 7.4.
NGC's right to withhold or reduce payment shall be NGC's sole
remedy against the Generator under this Agreement in respect of
failure to operate in Frequency Sensitive Mode, but shall be
without prejudice to any other rights NGC may have against the
Generator under the Grid Code and/or the Master Connection
Agreement and/or any Supplemental Agreement.
Payment for Fast Start Capability and Load Reduction Capability
Subject to Sub-Clause 7.14, NGC shall pay to the Generator a
capability payment calculated in accordance with Schedule F Part 1
in respect of each [Gas Turbine Unit] [Pumped Storage Unit] for
each Settlement Period when it is declared available by the
Generator for Low Frequency Relay initiated or manual response [or
for Load Reduction] in accordance with the Grid Code SDC.
Should a [Gas Turbine Unit] [Pumped Storage Unit] be determined
pursuant to the Grid Code OC5.5.3 not to have its Fast Start
Capability no payment shall be made under Sub-Clause 7.7 to the
Generator for the [Gas Turbine Unit] [Pumped Storage Unit]
concerned in respect of the period commencing with the time agreed
by the Parties or determined by arbitration pursuant to the Grid
Code when the [Gas Turbine Unit] [Pumped Storage Unit] first
failed to have the Fast Start Capability and expiring at the time
the [Gas Turbine Unit] [Pumped Storage Unit] is next declared
available for Low Frequency Relay initiated or manual response
following the time when it is determined that the [Gas Turbine
Unit] [Pumped Storage Unit] concerned has its Fast Start
Capability restored pursuant to the Grid Code OC5.5.3.
Payment for Fast Start from Gas Turbine Units
Subject to Sub-Clause 7.14, NGC shall pay to the Generator a sum
calculated in accordance with Schedule F Part 1 for each Fast
Start it makes from a Gas Turbine Unit in automatic response to a
frequency deviation in accordance with the Grid Code or in
accordance with an instruction issued to the Generator under the
Grid Code.
Payment for Pumped Storage Generation Spinning in Air and Mode
Changes
NGC shall pay to the Generator a sum calculated in accordance with
Schedule F, Part 2 in respect of each Pumped Storage Unit each
time it adopts the Spinning in Air mode in accordance with
instructions issued to the Generator under the Grid Code.
NGC shall pay to the Generator a sum calculated in accordance with
Schedule F, Part 2 for each Pumped Storage Unit for the period
during which it is operating in Spinning in Air mode for Frequency
Response purposes in accordance with instructions issued to the
Generator under the Grid Code.
Subject to Sub-Clause 7.14, NGC shall pay to the Generator a sum
calculated in accordance with Schedule F, Part 2 for each Pumped
Storage Unit for each Fast Start it makes from Spinning in Air
mode in automatic response to a frequency deviation in accordance
with the Grid Code or in accordance with instructions issued to
the Generator under the Grid Code. Subject to Sub-Clause 7.14,
NGC shall pay to the Generator a sum calculated in accordance with
Schedule F, Part 3 for each Pumped Storage Unit for each Fast
Start it makes from standstill in automatic response to a
frequency deviation in accordance with the Grid Code or in
accordance with instructions issued to the Generator under the
Grid Code.
Fast Start Default by Generator
If a Generating Unit shall fail (according to routine testing
and/or monitoring procedures to be agreed by NGC and the
Generator) to be Synchronised and Loaded to reach full Load within
five minutes of a decrease in System Frequency occurring
sufficient to initiate a Fast Start by means of the Low Frequency
Relays set at the setting required by NGC under the Grid Code SDC
or within seven minutes of a manual instruction to Fast Start:-
the capability payment under Sub-Clause 7.7 shall be reduced for
the day in which the failure occurs in proportion to the amount by
which the Active Power actually supplied within five or seven
minutes as the case may be falls short of full Load; and the
Generator shall not be entitled to payment under Sub-Clause 7.9,
7.12 or 7.13 as the case may be.
Each Party shall use its best endeavours to put in place as soon
as is reasonably possible such routine testing and/or monitoring
procedures as are appropriate to the purposes of Sub-Clause 7.14.
NGC's right to withhold or reduce payment shall be NGC's sole
remedy against the Generator under this Agreement in respect of
failure to provide Fast Start Capability or a Fast Start, but
shall be without prejudice to any other rights NGC may have
against the Generator under the Grid Code and/or the Master
Connection Agreement and/or any Supplement Agreement.
Payment for Load Reduction and Despatch of Pumped Storage Plant
Subject to Sub-Clause 7.18, NGC shall pay the Generator for
providing Load Reduction and/or agreeing to Despatch its Final
Pumping Programme in accordance with instructions issued to it
under the Grid Code a sum calculated in accordance with the
following formulae for each Final Pumping Programme Period in
which a Load Reduction service is provided or the Final Pumping
Programme is subject to Despatch instructions:-
(a) exact pumping DC
(b) over-pumping, but less than permitted tolerance DC - m x
DE
(c) over-pumping, but greater than permitted tolerance DC - m x
dE
(d) under-pumping, but less than permitted tolerance DC + m x
DE
(e) under-pumping, but greater than tolerance DC + P x (DE -
dE) + m x dE
Where:-
"exact pumping" means that the exact amount of Energy has actually
been consumed for pumping in the Final Pumping Programme Period as
would have been consumed had the Final Pumping Programme been
followed;
"over-pumping" means that more Energy has actually been consumed
for pumping in the Final Pumping Programme Period than would have
been the case had the Final Pumping Programme been followed;
"under pumping" means that less Energy has actually been consumed
for pumping in the Final Pumping Programme Period than would have
been the case had the Final Pumping Programme been followed;
"DE" means the total shortfall or surplus of actual Energy
consumed for pumping in the Final Pumping Programme Period as
measured against the Energy that would have been consumed had the
Final Pumping Programme been followed; the value of DE is always
positive;
"dE" and "permitted tolerance" means 350 MWh, being the permitted
tolerance allowed to NGC for the shortfall or surplus of actual
Energy consumed for pumping in the Final Pumping Programme
Period;
"DC" means the difference, whether positive or negative, in the
cost of Energy consumed for pumping in the Final Pumping Programme
Period, being the actual cost thereof minus the cost that would
have been incurred had the Final Pumping Programme been followed;
"m" means the Weighted Average Price that would have been paid for
Energy for pumping in any Settlement Period had the Final Pumping
Programme been followed;
"P" means the average of the Genset Bid Prices of a tranche of 500
MW of available Open Cycle Gas Turbine Units with the lowest
Genset Bid Prices in the Settlement Day commencing at 0000 after
the start of the Final Pumping Programme Period;
"Weighted Average Price" means the price in pounds per MWh
calculated by taking the total Energy cost that would have been
incurred had the Final Pumping Programme been followed and
dividing it by the total Energy that would have been consumed had
the Final Pumping Programme been followed.
The Generator shall not be entitled to payment under Sub-Clause
7.17 if and to the extent that it has been prevented from pumping
during the Final Pumping Programme Period by reason of physical
transmission constraints or widespread load shedding within the
zone containing Pumped Storage Plant.
NGC shall pay to the Generator a capability payment calculated in
accordance with Schedule F, Part 4 for each Final Pumping
Programme Period when the Generator and NGC have agreed that NGC
should have the ability to Despatch the Generator's Final Pumping
Programme.
NGC shall pay the Generator a sum calculated in accordance with
the figures set out in the relevant column of Schedule F, Part 5,
6 and 7 and in respect of each Pumped Storage Unit on each
occasion that it makes a Mode Change in accordance with the Grid
Code during any period when the Generator is providing a Load
Reduction service or has agreed to the Despatch of its Final
Pumping Programme.
NGC shall pay to the Generator a sum calculated in accordance with
the figures set out in the relevant column of Schedule F, Part 5
in respect of each Pumped Storage Unit for the time it is
operating in Spin Pump Mode in accordance with the Grid Code
during any period when it is providing a Load Reduction service or
has agreed to the Despatch of its Final Pumping Programme.
BLACK START CAPABILITY
NGC shall pay the Generator in respect of each Black Start Station
for providing a Black Start Capability the amounts per Settlement
Period provided in Schedule G for each Settlement Period for which
the Generator declares any Generating Unit at the Black Start
Station available for generation pursuant to the Grid Code SDC.
Should a Black Start Station be determined not to have a Black
Start Capability pursuant to the Grid Code OC5.5.4, no payment
shall be made under Clause 8.1 to the Generator for the Black
Start Station concerned in respect of the period commencing on the
date and time agreed by the Parties or determined by arbitration
pursuant to the Grid Code OC5.5.4 when the Black Start Station
first failed to have the Black Start Capability and expiring on
the date and time when the Generator next declares any Generating
Unit at the Black Start Station available for generation following
the date and time when the Black Start Station is next determined
to have its Black Start Capability restored pursuant to the Grid
Code OC5.5.4.
If following an instruction from NGC pursuant to the Grid Code OC9
the Generator fails to provide a Black Start at a Black Start
Station within a period consistent with its current registered
dynamic parameters, no payment shall be made under Sub-Clause 8.1
from the date and time of such failure until such date and time as
the Generator next declares any Generating Unit at that Black
Start Station available for generation following the date and time
when the Black Start Station is next determined to have its Black
Start Capability restored pursuant to the Grid Code OC5.5.4.
PAYMENT
On the fifth day of each month NGC shall send to the Generator a
detailed statement ("the Monthly Statement") setting out all
Ancillary Services supplied by the Generator during the previous
month and calculating the payments due to the Generator in respect
of such services for that month in accordance with this Agreement.
If the Generator has failed to supply any Ancillary Service in
accordance with the Grid Code or any instructions issued under the
Grid Code, NGC shall produce to the Generator at the same time as
it sends the Monthly Statement next following the time when such
records or evidence become available, the records of the
monitoring and/or tests carried out pursuant to the Grid Code OC
5.5, the records of the agreed monitoring and/or testing
procedures set out or provided for in this Agreement and any other
evidence upon which it relies as showing such failure. If the
Generator disagrees with such records or with any other fact or
calculation set out in the Monthly Statement, it shall produce to
NGC the evidence which it relies upon in support of such
disagreement. The Parties shall discuss and endeavour to resolve
the matter but if it cannot be resolved the records of the
monitoring and/or test procedures and the facts and calculations
set out in the Monthly Statement shall be binding upon the Parties
until such time as they are reversed or revised by agreement or by
an arbitrator appointed pursuant to Clause 21.
Should any dispute or disagreement under this Clause concern the
same facts and matters as a dispute or disagreement under the
Settlement calculation procedures set out in the Pooling and
Settlement Agreement the outcome of the dispute or disagreement
under the Pooling and Settlement Agreement shall be binding upon
the Parties in relation to the dispute or disagreement under this
Agreement.
Notwithstanding the provisions of Sub-Clause 9.2, if any fact or
matter set out in the Monthly Statement shall be inconsistent with
any fact or matter set out in a final run of the Settlement
calculation issued by the Settlement System Administrator under
the Pooling and Settlement Agreement, the facts and matters set
out in the Settlement calculation or which, following a dispute,
it is found or agreed should be there set out shall be binding
upon both Parties.
If either Party intends to dispute any fact or matter contained in
a final run of a Settlement calculation which is inconsistent with
any fact or matter contained in a Monthly Statement it shall serve
notice in writing on the other Party to that effect in order that
that other Party may make such representations as it wishes to the
Settlement System Administrator or exercise such rights as it may
have under the Pooling and Settlement Agreement.
NGC shall send to the Generator 20 days after the date of the
Monthly Statement an amended statement ("the Amended Monthly
Statement") to take into account any changes which require to be
made to it in consequence of the procedures set out in Sub-Clauses
9.2 to 9.5 inclusive.
Where a dispute is resolved later than 20 days after the date of
the Monthly Statement or where pursuant to the procedures set out
in Sub-Clause 9.2 it is determined that the Generator was not
entitled to receive a payment already made, NGC shall adjust the
account between itself and the Generator accordingly in the next
Monthly Statement or Amended Monthly Statement which it issues.
The due date of payment for the purposes of Sub-Clause 9.9 in
respect of any disputed amount shall be the date for payment of
the Monthly Statement from which the dispute arises.
NGC shall pay to the Generator the amount shown as due in an
Amended Monthly Statement within three Business Days of the date
on which the Amended Monthly Statement is or should be issued.
If NGC fails to pay on the due date any amount properly due under
this Agreement NGC shall pay to the Generator interest on such
overdue amount from and including the date of such failure to (but
excluding) the date of actual payment (as well after as before
judgement) at the rate of 4 percent over Barclays Bank PLC base
lending rate for the time being and from time to time. Interest
shall accrue from day to day.
Notwithstanding any other provision of this Agreement, the Parties
shall not be limited in any way as to the evidence they may rely
upon in any proceedings arising out of or in connection with
payment for any Ancillary Service under this Agreement and the
Parties agree that in the event and to the extent that either
Party succeeds in proving in any such proceedings that any
Ancillary Service was or was not provided, the successful party
shall be entitled to repayment of the sums previously paid under
this Agreement or payment of sums not paid as the case may be in
respect of such Ancillary Service.
If following a dispute or pursuant to the procedures set out in
Sub-Clause 9.2 it is determined or agreed that the Generator was
not entitled to any payment it has received, NGC shall be entitled
to interest on the amount so paid from the date of payment until
the date of repayment or the date when NGC makes a payment to the
Generator which takes such repayment into account. Such interest
shall be calculated in the same manner and at the same rate as is
provided for overdue payments under Sub-Clause 9.9.
Save as otherwise expressly provided in this Agreement, sums
payable by NGC pursuant to this Agreement whether of charges,
interest or otherwise shall (except to the extent otherwise
required by law) be paid in full, free and clear of and without
deduction, set-off or deferment in respect of any disputes or
claims whatsoever provided that NGC may deduct from such sums the
amount of any final award or judgment obtained by NGC pursuant to
the Master Connection Agreement or agreed by the Generator which
arises out of any failure by the Generator to provide or make
available Ancillary Services pursuant to the Grid Code and /or any
Supplemental Agreement.
NGC represents and warrants to the Generator that it enters into
this Agreement as principal and not as agent for any other person.
All amounts specified hereunder shall be exclusive of any Value
Added Tax or other similar tax and NGC shall pay to the Generator
Value Added Tax at the rate for the time being and from time to
time properly chargeable in respect of the making available and/or
supply of Ancillary Services under this Agreement, the Grid Code,
the Master Connection Agreement or any Supplemental Agreement.
LIMITATION OF LIABILITY
Subject to Sub-Clause 10.2 and Clause 9 and save where any
provision of this Agreement provides for an indemnity, the Parties
agree and acknowledge that neither Party (the "Party Liable") nor
any of its officers, employees or agents shall be liable to the
other Party 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:-
physical damage to the property of the other Party, its officers,
employees or agents; and/or
the liability of such other Party to any other person for loss in
respect of physical damage to the property of any person.
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 the other Party, its officers, employees or agents,
from and against all such and any loss or liability which 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.
Subject to Sub-Clause 10.2 and Clause 9 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 the other party for:-
any loss of profit, loss of revenue, loss of use, loss of contract
or loss of goodwill; or any indirect or consequential loss; or
loss resulting from the liability of the other party to any other
person howsoever and whensoever arising save as provided in Sub-
Sub-Clause 10.1(ii) and Sub-Clause 10.2.
Each Party acknowledges and agrees that the other Party holds the
benefit of Sub-Clauses 10.1 and 10.2 and 10.3 for itself and as
trustee and agent for its officers, employees and agents.
Each of Sub-Clauses 10.1, 10.2, 10.3 and 10.4 shall:-
be construed as a separate and severable contract term, and if one
or more of such Sub-Clauses is held to be invalid, unlawful or
otherwise unenforceable the other or others of such Sub Clauses
shall remain in full force and effect and shall continue to bind
the Parties; and
survive termination of this Agreement.
For the avoidance of doubt, nothing in this Clause 10 shall
prevent or restrict any Party enforcing any obligation (including
suing for a debt) owed to it under or pursuant to this Agreement.
Each Party acknowledges and agrees that the provisions of this
Clause 10 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.
METERING
The relationship between the Parties with respect to Energy
Metering Equipment shall be regulated in accordance with the
Pooling and Settlement Agreement.
The relationship between the Parties with respect to Operational
Metering Equipment shall be regulated by the Master Connection
Agreement.
TERMINATION
This Agreement shall automatically terminate upon:-
(i) the Generator ceasing to be a Pool Member; or
(ii) termination of the Pooling and Settlement Agreement; or
(iii) termination of the Master Connection Agreement; or
(iv) Revocation or withdrawal of the Generation Licence or the
Transmission Licence.
Upon termination of any Supplemental Agreement, this Agreement
shall be terminated to the extent that it applies to the
Generating Units at and Ancillary Services supplied or made
available from the Connection Site which is the subject of the
said Supplemental Agreement. Where the Generator serves notice to
Decommission or Disconnect the Generator's Equipment at a
Connection Site under a Supplemental Agreement, the Parties shall
discuss the possibility of terms being offered for the continued
provision following the date when Decommissioning or Disconnection
would otherwise have occurred of any Ancillary Service which was
being provided by the Generator at that Connection Site
immediately before service of the Notice to Decommission or
Disconnect and for which NGC are unable to find a reasonable
alternative.
No payments will be made under this Agreement in respect of an
Ancillary Service to be provided from a Generating Unit in
relation to any period when the Generating Unit or the Generator's
Equipment at any Connection Site used by that Generating Unit is
prevented from providing that Ancillary Service by reason of a
circumstance of Force Majeure under the Master Connection
Agreement or is Deenergised, Decommissioned or Disconnected for
any reason pursuant to the relevant Supplemental Agreement or the
Master Connection Agreement.
Termination by the Generator
In the event that:-
NGC shall fail to pay (other than by inadvertent error in funds
transmission which is discovered by the Generator, notified to NGC
and corrected within 48 hours following such notification) any
amount properly due or owing from it pursuant to this Agreement
according to its terms and such non-payment continues unremedied
and not disputed in good faith and upon reasonable grounds at the
expiry of 7 Business Days immediately following receipt by NGC of
written notice from the Generator of such non-payment; or
in respect of NGC:-
an order of the High Court is made or an effective resolution
passed for its insolvent winding-up or dissolution; or
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 is appointed; or
an administration order under Section 8 of the Insolvency Act 1986
is made or if a voluntary arrangement is proposed under Section 1
of that Act; or
it 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
Director); or
it is unable to pay its debts (within the meaning of Section
123(1) or (2) of the Insolvency Act 1986 save that such section
shall have effect as if for 750.00 pounds there was inserted
250,000 pounds (and NGC shall not be deemed to be unable to pay
its debts if any demand for payment is being contested in good
faith by it with recourse to all appropriate measures and
procedures);
and in any such case within 28 days of appointment of the
liquidator, receiver, administrative receiver, administrator
nominee or other similar officer, such person has not provided to
the Generator a guarantee of future performance by NGC of the
Agreement in such form and amount as the Generator may reasonably
require and there has been no agreement reasonably satisfactory to
the Generator reached between Pool Members as to payment of
amounts due in the future under this Agreement,
the Generator may declare by notice in writing to NGC that such
event has become an event of default.
Once the Generator has given notice of an event of default this
Agreement shall terminate. Termination of this Agreement as a
whole or in relation to any Generating Unit and/or any Ancillary
Service under Sub-Clauses 12.1 to 12.5 or any of them shall not
affect any rights or obligations of the Parties which have accrued
at the time of such termination.
ASSIGNMENT
The Generator shall not assign or transfer nor purport to assign
or transfer the benefit or burden of this Agreement save in the
following circumstances:-
the Generator may assign or charge its benefit under this
Agreement in whole or in part by way of security;
upon the disposal of the whole of the Generator's business or
undertaking, the Generator may transfer its rights and obligations
under this Agreement to the purchaser thereof provided that NGC
has consented to the transfer of the Generator's rights and
obligations under the Master Connection Agreement and all
Supplemental Agreements;
upon disposal of part of the Generator's business or undertaking
comprising Generator's Equipment at one or more Connection Sites
the Generator may transfer such of its rights and obligations
under this Agreement as relate to the Generating Units and
Ancillary Services concerned to the purchaser thereof provided
that NGC has consented to the transfer of the Generator's rights
and obligations under all Supplemental Agreements relevant to the
part of the business or undertaking to be transferred.
NGC shall not assign or transfer nor purport to assign or transfer
the benefit or burden of this Agreement save to a successor
Ancillary Services Provider.
CONFIDENTIALITY FOR NGC AND ITS SUBSIDIARIES
NGC and its subsidiaries shall secure that Protected Information
is not:-
divulged by Business Personnel to any person unless that person is
an Authorised Recipient;
used by Business personnel for the purposes of obtaining for NGC
or for any of its subsidiaries or for any other person:-
any electricity licence; or
any right to purchase or otherwise acquire, or to distribute
electricity (including rights under any electricity purchase
contract as defined in the Transmission Licence); or
any contract or arrangement for the supply of electricity to
Customers or Suppliers; or
any contract for the use of any electrical lines or electrical
plant belonging to or under the control of a Supplier; or
control of any body corporate which, whether directly or
indirectly, has the benefit of any such licence, contract or
arrangement; and
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.
Nothing in this Clause 14 shall apply:-
to any Protected Information which, before it is furnished to
Business Personnel, is in the public domain; or
to any Protected Information which, after it is furnished to
Business Personnel:-
is acquired by NGC or any subsidiary of NGC in circumstances in
which this Clause 14 does not apply; or
is acquired by NGC or any subsidiary of NGC in circumstances in
which this Clause 14 does apply and thereafter ceases to be
subject to the restrictions imposed by this Clause 14; or
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 14; 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
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:-
in compliance with the duties of NGC or any subsidiary of NGC
under the Act or any other requirement of Competent Authority; or
in compliance with the conditions of the Transmission Licence or
any document referred to in the Transmission Licence with which
NGC or any subsidiary of NGC is required by virtue of the Act or
the Transmission Licence to comply; or
in compliance with any other requirement of law; or
in response to a requirement of any stock exchange or regulatory
authority of the Panel on Take-Overs and Mergers; or
pursuant to the arbitration rules for the Electricity Supply
Industry Arbitration Association or pursuant to any judicial or
other arbitral process or tribunal having jurisdiction in relation
to NGC or any of its subsidiaries; or
to any Protected Information to the extent that NGC or any of its
subsidiaries is required or expressly permitted 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.
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 Party in performing Permitted Activities including for the
following purposes:-
the operation and planning of the NGC Transmission System;
the calculation of charges and preparation of offers of terms for
connection to or use of the NGC Transmission System;
the operation and planning of the Ancillary Services Business and
the calculation of charges therefor;
the operation of the Settlements Business;
the provision of information under the British Grid Systems
Agreement and the EdF Documents (as defined in the Pooling and
Settlement Agreement),
and may pass the same to subsidiaries of NGC which carry out such
activities and the Generator agrees to provide all information to
NGC and its subsidiaries for such purposes. NGC undertakes with
the Generator, 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:-
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:-
authorised by licence or exemption to generate, transmit or supply
electricity; or
an electricity broker or is known to be engaged in the writing of
electricity purchase contracts (as hereinbefore defined); or
known to be retained as a consultant to any such person who is
referred to in paragraph (a) or (b) above; or
or 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.
Without prejudice to the other provisions of this Clause 14, 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.
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. NGC shall
secure that Protected Information which is subject to the
provisions of this Clause 14 and which relates to the cost of
Reactive Power provided by the Generator is not divulged to any
Business Person engaged in the provision of static compensation
for use by the Grid Operator.
Notwithstanding any other provision of this Agreement, the
provisions of this Clause 14 shall continue to bind a person after
termination of this Agreement, in whole or in part, for whatever
reason.
For the avoidance of doubt, data and other information which
either Party is permitted or obliged to divulge or publish to the
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.
CONFIDENTIALITY FOR THE GENERATOR
The Generator hereby undertakes with 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:-
in the circumstances set out in Sub-Clause 15.2; or
to the extent otherwise expressly permitted by this Agreement; or
with the prior consent in writing of the Party to whose affairs
such Confidential Information relates.
The circumstances referred to in Sub-Sub-Clause 15.1(I) are:-
where the Confidential Information, before it is furnished to the
Generator, is in the public domain; or
where the Confidential Information, after it is furnished to the
Generator:-
is acquired by the Generator in circumstances in which this Clause
15 does not apply; or
is acquired by the Generator in circumstances in which this Clause
15 does apply and thereafter ceases to be subject to the
restrictions imposed by this Clause 15; or
enters the public domain,
and in any such case otherwise than as a result of:-
(i) a breach by the Generator of its obligations in this Clause
15; or
(ii) a breach by the person who disclosed that Confidential
Information of that person's confidentiality obligation and the
Generator is aware of such breach; or
if the Generator is required or permitted to make disclosure of
the Confidential Information to any person:-
in compliance with the duties of the Generator under the Act or
any other requirement of a Competent Authority; or
in compliance with the conditions of any Licence or any document
referred to in any Licence with which the Generator is required to
comply; or
in compliance with any other requirement of law; or
in response to a requirement of any stock exchange or regulatory
authority or the Panel of Take-Overs and Mergers; or
pursuant to the Arbitration Rules for the Electricity Supply
Industry Arbitration Association or pursuant to any judicial or
other arbitral process or tribunal having jurisdiction in relation
to the Generator; or
where Confidential Information is furnished by the Generator to
the employees, directors, agents, consultants and professional
advisers of the Generator, in each case on the basis set out in
Clause 15.4.
The Generator further undertakes with NGC and its subsidiaries
that it shall preserve the confidentiality of, and not directly or
indirectly reveal, report, publish, disclose or transfer any data
and other information of a commercially confidential nature
relating to the details (including the financial details) of this
Agreement, the negotiations leading up to the making of this
Agreement and any other discussions or negotiations arising during
the term of this Agreement and relating thereto except in the
circumstances set out in Sub-Clause 15.2(iii) and (iv) or unless
the Generator has obtained the prior written consent of NGC.
With effect from the date of this Agreement the Generator shall
adopt procedures within its organisation for ensuring the
confidentiality of all Confidential Information which it is
obliged to preserve as confidential under this Clause 15. These
procedures are:-
the Confidential Information will be disseminated within the
Generator only on a "need to know" basis;
employees, directors, agents, consultants and professional
advisers of the Generator in receipt of Confidential Information
will be made fully aware of the Generator's obligations of
confidence in relation thereto; and
any copies of the Confidential Information, whether in hard copy
or computerised form, will clearly identify the Confidential
Information as confidential.
Notwithstanding any other provision of this Agreement, the
provisions of this Clause 15 shall continue to bind a person after
termination of this Agreement, in whole or in part, for whatever
reason.
For the avoidance of doubt, data and other information which
either Party is permitted or obliged to divulge or publish to the
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.
ADDITIONAL COSTS
If:-
the Generator is of the opinion that in order to comply with any
change in or amendment to the Grid Code (other than the withdrawal
of or reduction in the scope of a Derogation) of any statutory or
regulatory obligation coming into force after the Effective Date
the Generator is obliged to incur costs and expenses for the
purpose of carrying out modifications to any Generating Unit or
otherwise for the purposes of changing the manner of operation of
a Generating Unit in relation to the provision of any Ancillary
Service; or
NGC is of the opinion that by reason of any change in or amendment
to the Grid Code or any statutory or regulatory obligation coming
into force after the Effective Date the Generator is able to make
savings in the cost and expense of providing any Ancillary Service
from any Generating Unit,
then either the Generator or NGC as the case may be may by notice
in writing require that the provisions of Sub-Clauses 2.4 to 2.8
shall be brought into operation in relation to the Generating Unit
and the Ancillary Service which the Generator or NGC claims to be
affected by the change in or amendment to the Grid Code.
In accordance with the provisions of Sub-Clause 2.5, the Parties
shall endeavour to agree any adjustment in the rates, prices and
indexation formulae for the Ancillary Service and the Generating
Unit concerned having regard to the Charging Principles set out in
Schedule C. The revised rates and prices and (if appropriate)
indexation formulae shall be calculated as at and shall take
effect as from the end of a period of 12 weeks following the date
of the notice served under Sub-Clause 16.1 and the provisions of
Sub-Clauses 2.6 to 2.8 shall apply, mutatis mutandis, to the price
review under this Clause 16.
WAIVER
No delay by or omission of any Party in exercising any right,
power, privilege or remedy under this Agreement shall operate to
impair such right, power, privilege or remedy or be construed as a
waiver thereof. Any single or partial exercise of any such right,
power, privilege or remedy shall not preclude any other or further
exercise thereof or the exercise of any other right, power,
privilege or remedy. Payment of any sum or the submission of any
Monthly Statement or Amended Monthly Statement by NGC to the
Generator under this Agreement shall not operate to impair or be
construed as a waiver of any right, power, privilege or remedy NGC
may have against the Generator under this Agreement and/or the
Grid Code and/or the Master Connection Agreement and/or any
Supplemental Agreement.
The rights and remedies provided by this Agreement to the Parties
are exclusive and not cumulative and exclude and are in place of
all substantive (but not procedural) rights or remedies express or
implied and provided by common law or statute in respect of the
subject matter of this Agreement, including any rights either
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 the other
Party, 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.
For the avoidance of doubt, the Parties acknowledge and agree that
nothing in this Agreement shall exclude or restrict or otherwise
prejudice or affect any of the rights, powers, privileges,
remedies, duties and obligations of the Secretary of State or the
Director under the Act, any Licence or otherwise howsoever.
NOTICES
Any notice or other communication to be given by one Party to the
other under, or in connection with the matters contemplated by,
this Agreement shall be addressed to the recipient and sent to the
address, telex number or facsimile number of such other Party
given in Schedule H 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 18 to the Party giving the relevant
notice or other communication to it.
Any notice of other communication to be given by one Party to the
other Party under, or in connection with the matters contemplated
by, this Agreement shall be 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:-
in the case of delivery by hand, when delivered; or
in the case of first class prepaid post, on the second day
following the day of posting or (if sent airmail from overseas) on
the fifth day following the day of posting; or
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
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.
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.
VARIATIONS
No variations to this Agreement shall be effective unless made in
writing and signed by or on behalf of both parties.
DISPUTE RESOLUTION
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 this Agreement between
the Parties shall be and is hereby referred to arbitration
pursuant to the arbitration rules of the Electricity Supply
Industry Arbitration Association in force from time to time.
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.
Subject always to Sub-Clause 21.5, 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 Sub-Clause 21.4) against the other party to this
Agreement ("a contracting party") which would but for this Sub-
Clause have been a dispute or difference referred to arbitration
by virtue of Sub-Clause 21.1 then, notwithstanding the provisions
of Sub-Clause 21.1 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 the 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.
For the purposes of this Clause third party claim shall mean:-
any claim by a defendant contracting party against a contracting
party (whether or not already a party to the legal proceedings)
for any contribution of indemnity; or
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
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).
Sub-Clause 21.3 shall apply only if at the time the legal
proceedings are commenced no arbitration has been commenced
between the defendant contracting party and the other 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.
JURISDICTION
Subject and without prejudice to Clause 21 and to Sub-Clause 22.4,
both parties irrevocably agree that the courts of England are to
have exclusive jurisdiction to settle any disputes which may arise
out of or in connection with this Agreement and that accordingly
any suit, action or proceeding (together in this Clause 22
referred to as "Proceedings") arising out of or in connection with
this Agreement may be brought in such courts.
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 22 and any claim that
any such Proceedings have been brought in an inconvenient forum
and further irrevocably agrees that 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.
Each Party which is not incorporated in any part of England and
Wales agrees that if it does not have, or shall cease to have, a
place of business in England and Wales it will promptly appoint,
and shall at all times maintain, a person in England and Wales to
accept service of process on its behalf in any Proceedings in
England.
For the avoidance of doubt nothing contained in the foregoing
provisions of this Clause 22 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.
GOVERNING LAW
This Agreement shall be governed by and construed in all respects
in accordance with English law.
SEVERANCE OF TERMS
If any provision of this Agreement is or becomes or is declared
invalid, unenforceable of illegal by the courts of any
jurisdiction to which it is subject or by order of the Commission
of the European Communities or by order of the Secretary of State,
such invalidity, unenforceability or illegality shall not
prejudice or affect the remaining provisions of this Agreement
which shall continue in full force and effect notwithstanding such
invalidity, unenforceability or illegality.
ENTIRE AGREEMENT
This Agreement contains or expressly refers to the entire
agreement between the Parties with respect to the subject matter
hereof, and expressly excludes any warranty, condition or other
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 this Agreement.
IN WITNESS whereof the Parties have caused their respective Common
Seals to be hereunto affixed the day and year first above written.
THE COMMON SEAL of )
THE NATIONAL GRID COMPANY PLC )
was hereunto affixed in the presence )
of:- )
Director
Secretary
THE COMMON SEAL of )
[ ] )
was hereunto affixed in the presence )
of:- )
Director
Secretary
Schedule A
The Term of the Agreement
Generating Unit Ancillary Service Term
Schedule B
Form of Agreement Amending Ancillary Services
Agreement to Correspond to Supplemental Agreement
for a New Connection Site or variation of an existing
Supplemental Agreement following a Modification
of following annual review of rates and prices
THIS AGREEMENT is made the day of
19 BETWEEN:-
THE NATIONAL GRID COMPANY PLC a company registered in England with
Number 2366977 whose registered office is a National Grid House,
Sumner Street, London SE1 9JU ("NGC" which expression shall
include its permitted successors and/or assigns);
[NP] [POWERGEN] [PUMPED STORAGE] [NUCLEAR ELECTRIC] [OTHERS] whose
registered office is at [ ]
("the Generator" which expression shall include its permitted
successors and/or assigns).
WHEREAS:-
By an Agreement ("the Ancillary Services Agreement") dated [ ]
1990 made between NGC and the Generator the parties thereto made
provision for the payment by NGC for Ancillary Services provided
by the Generator.
The Parties have agreed to amend that agreement in the terms
hereinafter set out.
NOW IT IS HEREBY AGREED as follows:-
1. Unless the context otherwise requires, words and expressions
defined in the Ancillary Services Agreement shall bear the same
meanings respectively when used herein.
2. The provisions of this Agreement shall come into effect on
[date] [the date when the Commissioning Programme referred to in
Sub-Clause [ ] of the Supplemental Agreement date [ ] actually
commences] [Note: second alternative applies only where this
agreement complements Supplemental Agreement for a New Connection
Site.]
3. As and from the effective date of this Agreement, the
Ancillary Services Agreement shall be amended as follows:-
HERE SET OUT AMENDMENTS TO CLAUSES
AND/OR SCHEDULES
4. This Agreement and the Ancillary Services Agreement shall be
read and construed as one document and references in the
Ancillary Services Agreement to the Ancillary Services
Agreement (howsoever expressed) shall be read and construed
as references to the Ancillary Services Agreement as amended
by this Agreement and by any other agreement amending the
same from time to time.
5. This Agreement shall be governed by and construed in all
respects in accordance with English law and the provisions of
Clauses 19 and 20 of the Ancillary Services Agreement shall
apply hereto mutatis mutandis.
IN WITNESS whereof the Parties have caused their respective
Common Seals to be hereunto affixed the day and year first above
written.
THE COMMON SEAL OF )
THE NATIONAL GRID COMPANY, PLC )
was hereunto affixed in the presence )
of:
Director
Secretary
THE COMMON SEAL of )
[ ] )
was hereunto affixed in the presence )
of: )
Director
Secretary
Schedule C
Ancillary Services
Charging Principles
1. Introduction
1.1 These principles are to be used to establish the basic
arrangements but are not intended to stifle innovation in the
development of new services or the giving of appropriate
economic signals.
2. General
2.1 The charges shall be "cost reflective" i.e. based and founded
upon the actual or estimated costs directly incurred or to be
incurred by the Generator for the purpose of providing the
service or capability concerned.
2.2 Where a capability to provide an Ancillary Service is
required by the Grid Code from all Generating Units (as
opposed to a capability made available by agreement between
the Parties from some only of the Generator's Generating
Units), no Ancillary Service Capability payment shall be
made.
2.3 The cost of "Grandfathering" Generator's Equipment (i.e.
bringing equipment owned by the Generator on the Effective
Date to a condition of compliance with the Grid Code) shall
not be included in Ancillary Services payments. Where a
Derogation is withdrawn or reduced in scope then, except in
relation to Reactive Power and Frequency Response, the
Generator shall be entitled to take the cost of meeting the
withdrawal or reduction in the scope of the Derogation into
account in its charges.
2.4 Subject to the other provisions of this Schedule, the charges
shall take due account of any change in or amendments to the
Grid Code or any other statutory or regulatory obligation
coming into force after the Effective Date affecting the
provision of Ancillary Services.
2.5 If as a result of any changes to the Pooling and Settlement
Agreement the Generator ceases to be entitled to receive
payment under that agreement in respect of any elements of
Ancillary Services provided by it which are expressed in this
Schedule to be paid for under that agreement, the Generator
shall be entitled to charge for such elements under this
Agreement. Where however such change entitles the Generator
to be paid for any elements of Ancillary Services which are
expressed in this Schedule to be paid for under this
Agreement the Generator shall cease to be entitled to charge
for such elements under this Agreement.
3. Reactive Power
3.1 The fixed cost of providing the capability to supply Reactive
Power specified in the Grid Code shall not be included in the
charge.
3.2 The variable cost of providing Reactive Power shall include:
(i) the additional heat losses incurred as a consequence of
producing Reactive Power, measured at the High Voltage
side of the Generator/Transformer terminals; the
calculation of such heat losses to take account of the
square law relationship between the electric current
and the additional heat losses incurred; for the
purposes of calculating the charges under the interim
payment system estimates of Reactive Energy likely to
be provided shall be used for the purposes of
calculating heat losses;
(ii) maintenance costs incurred as a direct result of
Reactive Power output (including a sum in respect of
any reduction in the working life of Generating Unit
components consequent upon Reactive Power output).
3.3 Payments for Reactive Power shall relate to Reactive Power
provided to the relevant User System or the NGC Transmission
System.
3.4 Any MW part-loading required for the purpose of MV Ar
production is paid for through the Pooling and Settlement
Agreement.
3.5 Charges for Reactive Power shall be predicated on the basis
that any Generating Units brought on out of merit for the
purpose of MV Ar production are paid for MW production
through the Pooling and Settlement and MV Ar production
through Ancillary Services Agreement.
3.6 Payments for Reactive Power may include payments for a
proportion of opportunity costs incurred as a direct
consequence of a Generating Unit being taken or kept out of
service outside normal outage periods for the sole purpose of
the maintenance or repair of equipment essential to the
production of Reactive Power. Payments shall be made on an
"as arising" basis but arrangements shall be put in place to
avoid sudden increases in payments to the Generator which
would distort the Pool Purchase Price. There is no
presumption arising from the foregoing that opportunity costs
should be paid in relation to Generating Units brought into
service for the first time after the Effective Date.
3.7 On the changeover from the interim payment system to the
final payment system no sudden change is expected to the
total industry amounts paid for Reactive Power.
3.8 The Generator is paid for the Start-Up of a Gas Turbine Unit
providing Synchronous Compensation by Ancillary Services
together with a payment for time actually spent in
Synchronous Compensation mode.
4. Cancelled Starts
4.1 Payments for Cancelled Starts are based upon the Generator's
Start-Up Price and the time it would have required to
Synchronise to the System.
5. Hot Standby
5.1 Payments for Hot Standby are based upon the Generator's
Start-Up Price and the time spent on Hot Standby.
5.2 Charges for Hot Standby shall be predicated on the basis that
where Hot Standby is reached and then followed by an
instruction to Synchronise to the System which is not
cancelled the Generator is paid from Start-up to Hot Standby
through the Pooling and Settlement Agreement.
6. Frequency Sensitive Generation
6.1 The variable cost of producing Primary and Secondary Response
and Five Minute Reserve shall include sums in respect of:
throttling losses;
lost boiler efficiency (steam plant only);
additional works power.
6.2 Part-loading of Generating Units is paid for through the
Pooling and Settlement Agreement.
7. Fast Starts
7.1 Payments for Fast Starts from Gas Turbine or Pumped Storage
Units shall include a payment for maintaining the Fast Start
Capability.
7.2 Any energy produced as a result of a Fast Start is paid for
through the Pooling and Settlement Agreement.
7.3 In the case of a Fast Start, a normal start is paid for
through the Pooling and Settlement Agreement and costs over
and above those of a normal start are paid for through the
Ancillary Services Agreement.
7.4 Payments to Pumped Storage for selecting spin-in-air mode for
frequency response purposes include a sum in respect of the
fixed costs of adopting such a mode.
8. Load Reduction
8.1 The cost of providing Load Reduction shall include sums in
respect of:
(a) maintaining the capability to trip load automatically
in response to a frequency deviation; and
(b) in the case of Pumped Storage, the additional cost of
energy over that programmed.
9. Black Start
9.1 The cost of providing a Black Start Capability shall include
the maintenance costs incurred as a direct result of providing the
Capability.
Schedule D
Schedule of Payments for Supply of Reactive Power
Part 1
Generating Unit Amount
(pound / half hour)
Part 2
SYNCHRONOUS COMPENSATION
Operating Charges
Generating ]Plant] [Unit] Amount per minute
Schedule E.
[Part Loaded] Plant
Tariff for Primary and Secondary
Frequency Response and 5 Minute Reserve
Generating Primary Primary
Secondary 5
Unit and 5 Minute
Loading Response Reserve pound/min Loading Response Reserve
pound/min Loading
Response Reser
pound/min
MW MW/Hz MW MW MW/Hz MW MWMW/
Primary and Secondary Secondary
and 5 Minute
Loading Response Reserve pound/min Loading
Response Reserve
pound/min
MW MW/HzMW
Schedule F
Part 1
Gas Turbine [Pumped Storage] Units in service for Low Frequency
Relay initiated or manual Frequency Response or Load Reduction
Unit Amount per half hour Amount per Start*
Part 2
Pumped Storage Adopting Spinning in Air Mode + Fast Start from
Spinning in Air Mode
Pumped Storage Amount Per Amount Per Hour Amount Per Start
Unit Mode Adoption
Part 3
Pumped Storage Fast Start From Standstill
Pumped Storage Unit Amount Per Start
Part 4
Pumped Storage - Despatch of Final Pumping Programs
Capability Payment
Part 5
Pumped Strata Adopting Spin Pump Mode and Start from Spin Pump
Mode
Unit Amount Per Mode Adoption Amount Per Hour Amount per Start
Part 6
Pumped Storage Trip De-Load and Re-Start
Unit Amount Per Trip Amount Per Re-Start Amount Per De-Load
Part 7
Payments for Emergency Mode Changes
* Note: applicable only to Gas Turbine Units.
Schedule H
Notices
NGC's address for service of Notices:
Generator's address for service of Notices:
Schedule I
Indexation Formulae
Schedule J
Definitions
"the Act" - the Electricity Act 1989;
"Active Power" - The product of voltage and the in-phase component
of alternating current measured in units of Watts and standard
multiples thereof i.e.
100 Watts = 1kW
1000kW = 1MW
1000 MW = 1GW
100 GW = 1TW;
'Affiliate" - in relation to NGC means any holding company or
subsidiary of NGC or any subsidiary of a holding company of NGC,
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 section is not in force at the date
of this Agreement as if such latter section were in force at such
date;
"Agreement" - this agreement (including the Schedules) as amended,
extended, supplemented, novated or modified from time to time;
"Ancillary Services" - any or all of the following:
Reactive Power;
Reactive Power supplied by means of Synchronous;
Compensation;
Cancelled Start;
Hot Standby;
Primary Response;
Secondary Response;
Five Minute Reserve;
Frequency Response by means of Gas Turbine Unit Fast Start;
Frequency Response by means of a Pumped Storage Unit Fast
Start;
Frequency Response by means of a Fast Start from a Pumped
Storage Unit Spinning-in-Air;
Despatch of Pumped Storage Plant pumping programme;
Frequency Response by means of Load Reduction;
Black Start Capability;
such other ancillary services as the Parties may agree from
time to time;
"Ancillary Services Agreement" - 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" - the business relating to Ancillary Services
carried on by the Ancillary Services Provider;
"Ancillary Services Provider" - the person who for the time being
and from time to time is required by the terms of a licence
granted under Section 6(1)(b) of the Act to contract for Ancillary
Services;
"Apparatus" - all equipment in which electrical conductors are
used, supported or of which they may form a part;
"Authorised Electricity Operator" - any person (other than NGC in
its capacity as operator of the NGC Transmission System) who is
authorised to generate, transmit or supply electricity;
"Authorised Recipient" - 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 14 of this Agreement 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;
"Availability Declaration" - a statement of the availability for
generation of a Centrally Despatched Generating Unit submitted by
the Generator pursuant to the Grid Code;
"Black Start" - the procedure necessary for a recovery from a
Total Shutdown or Partial Shutdown;
"Black Start Capability" - an ability in respect of a Black Start
Station for at least one of its Generating Units to Start-Up from
Shutdown and to energise a part of the System and be Synchronised
to the System upon instruction from NGC within two hours without
an external electrical power supply;
"Black Start Station" - a Power Station which is registered
pursuant to a Supplemental Agreement as having a Black Start
Capability;
"British Grid Systems Agreement" - the agreement of that name made
or to be made between NGC, Scottish Hydro Electric PLC and
Scottish Power PLC inter alla regulating the relationship between
their respective grid systems;
"Bulk Supply Point" - any point of supply where Energy Metering
Equipment for the purposes of the bulk supply tariff is or would
have been located as more particularly defined in the Pooling and
Settlement Agreement;
"Business Day" - a week-day other than a Saturday on which banks
are open for domestic business in the City of London;
"Business Person" - any person who is a Main Business Person or a
Corporate Functions Person and "Business Personnel" shall be
construed accordingly;
"Cancellation Instruction" - an instruction issued by NGC
cancelling a previous instruction in the circumstances set out in
Clauses 5 or 6;
"Canceled Start" - a response by the Generator to a Cancellation
Instruction;
"Central Despatch" - the process of Scheduling and issuing direct
instructions by NGC referred to in paragraph 1 or Condition 7 of
the Transmission Licence;
"Centrally Despatched Generating Unit" - a Generating Unit within
a Generating Plant;
"Commercial Ancillary Services" - Ancillary Services other than
System Ancillary Services;
"Competent Authority" - 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;
"Confidential Information" - all data and other information
supplied to the Generator by NGC under the provisions of this
Agreement;
"Connection Site" - each location more particularly described in
the relevant Supplemental Agreement at which the Generator's
Equipment and NGC Assets required to connect the Generator to the
NGC Transmission System are situated or at which the Generator's
Equipment is connected to a User System;
"Corporate Functions Person" - 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 adviser to or performs
work in relation to or services for the Main Business;
"Customer" - a person to whom electrical power is provided
(whether or not he is the same person as the person who provides
the electrical power);
"Decommission" - cessation of use by the Generator of the
Generator's Equipment at any given Connection Site for a
continuous period exceeding 12 months pursuant to the relevant
Supplemental Agreement;
"Deenergise" - 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 at a Connection Site through the
Generator's Equipment; ""Deenergised" shall be construed
accordingly;
"Demand" - the demand of MW and MV Ar of electricity;
"Derogation' - a direction issued by the Director or any provision
of any Supplemental Agreement, which in either case, relieves the
Generator from its obligation under the Generation Licence or
under the Master Connection Agreement to comply with such parts of
the Grid Code as may be specified in such direction or provision;
"Despatch" - the issue by NGC of instructions for Generating Plant
to achieve specific Active Power and Reactive Power levels or
target voltage levels within Generation Scheduling and Despatch
Parameters listed in the Grid Code SDC and by stated times;
"Desynchronisation" - the act of taking a Generating Unit off a
System to which it has been Synchronised, by opening any
connecting circuit breaker;
"Director" - the Director-General of Electricity Supply appointed
for the time being pursuant to Section 1 of the Act;
"Disconnect" - permanent physical disconnection of the Generator's
Equipment at any given Connection Site;
"Distribution Code" - the Distribution Code required to be drawn
up by each PES and approved by the Director, as from time to time
revised with the approval of the Director;
"Distribution System" - the system consisting (wholly or mainly)
of electric lines owned or operated by any Authorised Electricity
Operator 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 Authorised Electricity Operators
and includes any Remote Transmission Assets operated by such
Authorised Electricity Operator and any electrical plant and
meters owned or operated by the Authorised Electricity Operator in
connection with the distribution of electricity, but does not
include any part of the NGC Transmission System;
"Effective Date" - 31st March 1990;
"Electricity" - Active Energy and Reactive Energy;
"Embedded" - 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);
"Energy" or "Active Energy" - the electrical energy produced,
flowing or supplied by an electric circuit during a time interval,
being the integral with respect to time of the instantaneous
power, measured in units of Watt-hours or standard multiples
thereof i.e.
1000 Wh = 1 kWh
1000 kWh = 1 MWh
1000 MWh = 1GWh
1000 GWh = 1 TWh;
"Energy Metering Equipment" - meters instruments transformers
(both voltage and current), metering protection equipment
including alarms, circuitry and their associated data collection
outstations and wiring which are part of the Activity Energy or
Reactive Energy measuring equipment at or relating to a Site;
"External Interconnection" - Apparatus owned or operated by NGC
for the transmission of electricity to or from the NGC
Transmission System into or out of an External System;
"Externally Interconnected Party" - a person operating an External
System which is connected to the NGC Transmission System by an
External Interconnection;
"External System" - 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;
"FMS Date" - the date (which is expected to fall on or as soon as
is reasonably practicable after 31st October 1992) to be specified
by the Executive Committee (as defined in the Pooling and
Settlement Agreement) in agreement with the Grid Operator and the
Settlement System Administrator under the Pooling and Settlement
Agreement for the national implementation of the revised standards
specified by Codes of Practice in relation to the Energy Metering
Equipment of all Parties to the Pooling and Settlement Agreement;
"Fast Start" - a start by a Generating Unit with a Fast Start
Capability;
"Fast Start Capability" - the ability of a Generating Unit to be
Synchronised and Loaded to reach full Load within 5 minutes;
"Final Pumping Programme" - a programme submitted by NGC Pumped
Storage Business to NGC Operations not later than 2000 hours daily
indicating Demand of each Pumped Storage Unit (including intended
on and off times) over the period 2200 hours the same day to 0700
hours the following day or if the following day is not a Business
Day, 0800 hours, adjusted for the purposes of calculating payments
under this Agreement to take account of any Pumped Storage Plant
breakdown and any additional pumping required by NGC Pumped
Storage Business in accordance with the Grid Code during the Final
Pumping Programme Period;
"Final Pumping Programme Period" - in relation to Load Reduction
and/or despatch by NGC the period covered by the Final Pumping
Programme extended until whichever is the earlier of:
the time at which NGC Pumped Storage Business is next instructed
to generate; or
the time at which NGC Pumped Storage Business is next programmed
to generate; or the time of the start of the next Final Pumping
Programme;
"Five Minute Reserve" - in relation to a Generating Unit a
response which is fully available within five minutes from the
time of Frequency change or a Despatch instruction pursuant to the
Grid Code SDC3, and which is sustainable for a period of four
hours;
"Frequency" - the number of alternating current cycles per second
(expressed in Hertz) at which a System is running;
"Frequency Response" - a response by a Generating Unit to a change
in Frequency with the aim of containing System Frequency within
the limits provided for under the Grid Code;
"Frequency Sensitive Mode" - automatic incremental or decremental
generation response to contain initial System Frequency transient
together with a sustained generation response which is sufficient
to contain the System Frequency within the limits defined in the
Frequency Control Strategy as defined under the Grid Code;
"Frequency Sensitive Generation" - the operation of a Generating
Unit in Frequency Sensitive Mode;
"Fuel Security Code" - the document of that title designated as
such by the Secretary of State, as from time to time amended;
"Gas Turbine Unit" - a Generating Unit driven by a gas turbine,
(for instance by an aero engine);
"Generating Plant" - a Power Station subject to Central Despatch
including any Generating Unit therein;
"Generating Unit" - any Apparatus which produces electricity;
"Generation Business" - the authorised business of NGC or any
Affiliate or Related Undertaking in the generation of electricity
or the provision of Ancillary Services, in each case from Pumped
Storage Plant;
"Generation Licence" - the licence granted to the Generator
pursuant to Section 6(1)(a) of the Act;
"Generation Offer Prices" - the set of prices submitted by the
Generator in respect of each Centrally Despatched Generating Unit
under the Grid Code SDC;
"Generator's Equipment" - the Plant and Apparatus owned by the
Generator (ascertained in the absence of agreement to the contrary
by reference to the principles of ownership set out is the Master
Connection Agreement) which is connected to the NGC Transmission
System or to a Distribution System at any particular Connection
Site or which the Generator wishes so to connect;
"Genset Bid Price" - the meaning attributed to it in the Pool
Rules;
"Grid Code" - the Grid Code drown up pursuant to Condition 8 of
the Transmission Licence as from time to time revised in
accordance with Condition 8.2 of the Transmission Licence;
references in this Agreement to any specific provision or part of
the Grid Code shall be construed as references to such provision
or part as from time to time amended;
"Grid Code OC" - the Operating Codes of the Grid Code;
"Grid Code SDC" - the Scheduling and Despatch Codes of the Grid
Code;
"Grid Entry Point" - a point at which a Non-Embedded Generating
Unit connects to the NGC Transmission System;
"Grid Supply Point" - a point of supply from the NGC Transmission
System to PES's or to other Users with User Systems with Customers
connected to them or Non-Embedded Customers;
"Hot Standby" - in relation to a Steam Turbine Generating Plant a
condition of readiness to be able to Synchronise and attain an
instructed output in a specified timescale;
"Lagging" - in relation to Reactive Power exporting MV Ar;
"Leading" - in relation to Reactive Power importing MV Ar;
"Licence" - any one or more as appropriate of the Licences granted
pursuant to Section 6 of the Act;
"Load" - the Active or Reactive Power as the context requires
generated, transmitted or distributed;
"Loaded" - supplying electrical power to the system;
"Load Reduction" - interruption of Demand by means of Low
Frequency Relays;
"Low Frequency Relay" - an electrical measuring relay intended to
operate when its characteristic quantity (Frequency) reaches the
relay settings by decrease in Frequency;
"Main Business" - any business of NGC or any of its subsidiaries
as at the Effective Date or which it is required to carry on under
the Transmission Licence other than the Generation Business;
"Main Business Person" - 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;
"Master Connection Agreement" - the agreement designated as the
Master Connection and Use of System Agreement made between all
Users of the NGC Transmission System and NGC for connection of
Plant and/or Apparatus and/or use of the NGC Transmission System,
and any amendment, extension, variation or modification of that
agreement;
"Mode Change" - in relation to a Pumped Storage Unit a change from
one operating condition to another;
"Modification" - any actual or proposed replacement, renovation,
modification, alteration or construction by or on behalf of either
Party to that Party's Plant or Apparatus or the manner of its
operation which has or may have a Material Effect on the other
Party for the purposes of the Master Connection Agreement at a
particular Connection Site;
"New Connection Site" - a proposed Connection Site in relation to
which there is no Supplemental Agreement in force between the
Parties;
"NGC Assets" - the Plant and Apparatus owned by NGC necessary to
connect the Generator's Equipment to the NGC Transmission System
at any particular Connection Site;
"NGC Pumped Storage Business" - the authorised business of NGC or
any Affiliate or Related Undertaking in the generation of
electricity or the provision of Ancillary Services from Pumped
Storage Plant;
"NGC Transmission System" - 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;
"Non-Embedded Customer" a Customer except for a PES receiving
electricity direct from the NGC Transmission System irrespective
of from whom it is supplied;
"Offered Availability" - the availability, expressed in MW less
the MW consumed by that Centrally Despatched Generating Unit
through the Centrally Despatched Generating Unit's unit
transformer when producing the same, of a Centrally Despatched
Generating Unit as set out in the relevant Availability
Declaration or revision thereof, which in the case of an Embedded
Centrally Despatched Generating Unit grossed up to represent MW
metered at the relevant Grid Supply Point using the conversion
factor supplied pursuant to the Grid Code SDC;
"Operational Metering Equipment" - meters, instrument transformers
(both voltage and current), transducers metering protection
equipment including alarms circuitry and their associated
outstations as may be necessary for the purposes of the Grid Code
CC 6.5.5 and the corresponding provision of the relevant
Distribution Code
"Part Loaded" - in relation to a Generating Unit, on load but not
running at Registered Capacity;
"Partial Shutdown" - the same as a Total Shutdown except that all
generation has ceased in a separate part of the Total System and
there is no supply from External Interconnections or other parts
of the Total System to that part of the Total System and,
therefore, that part of the Total System is shutdown, with the
result that it is not possible for that part of the Total System
to begin to function again without NGC's directions relating to a
Black Start;
"Party" - each person for the time being and from time to time a
party to this Agreement and any successor(s) in title to, or
permitted assign(s) of, such person;
"Permitted Activities" - activities carried on for the purposes of
the Main Business;
"PES" - a holder of a licence granted under Section 6(1)(c) of the
Act;
"Plant" - fixed and movable items used in the generation and/or
supply and/or transmission of electricity other than Apparatus;
"Pool Members" - the Founder Generators and Founder Suppliers and
any other person admitted to pool membership under the Pooling and
Settlement Agreement in each case until it shall have resigned
from pool membership or otherwise ceased to be a member in
accordance therewith;
"Pool Purchase Price" - the Pool Purchase Price for a Settlement
Period determined pursuant to the Pool Rules;
"Pool Rules" - the rules set out in Schedule 9 to the Pooling and
Settlement Agreement as amended, varied or substituted from time
to time in accordance with the terms of the Pooling and Settlement
Agreement;
"Pooling and Settlement Agreement" - the agreement of that title
for the time being approved (or to be approved) by the Secretary
of State or by the Director as from time to time amended;
"Power Station" - an installation comprising one or more
Generating Units (even where separately sited) owned or controlled
by the same Generator which may reasonably be considered as being
managed as one Power Station;
"Primary Response" - in relation to a Generating Unit the
automatic response to Frequency changes released increasingly with
time over the period 0 to 10 seconds from the time of Frequency
change and fully available by the latter and which is sustainable
for at least a further 20 seconds;
"Protected Information" - any information relating to the affairs
of a Party which is furnished by such Party 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; and
any data and other information of a commercially confidential
nature relating to the details (including the financial details)
of this Agreement, the negotiations leading up to the making of
this Agreement and any other discussions or negotiations arising
during the term of this Agreement and relating thereto;
"Pumped Storage Plant" - the Dinorwig and/or Ffestiniog Generating
Plants owned by NGC;
"Pumped Storage Unit" - a Generating Unit within a Pumped Storage
Plant;
"Reactive Energy" - the integral with respect to time of the
Reactive Power;
"Reactive Power" - 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 i.e. 1000 V Ar = 1 kVAr;
1000 kVAr = 1 MVAr;
"Reactive Power Test" - a test specified in the Grid Code OC5
carried out by the Generator on the instructions of NGC in order
to demonstrate that a Generating Unit meets the Reactive Power
capability required by the Grid Code;
"Registered Capacity" - the normal full load capacity of a
Generating Unit as declared by the Generator, less the MW consumed
by the Generating Unit through the Generating Unit's unit
transformer when producing the same;
"Related Undertaking" - in relation to NGC means any undertaking
in which NGC has a participating interest as defined by Section
260 of the Companies Act 1985 as substituted by Section 22 of the
Companies Act 1989 and if that section is not in force at the date
of this Agreement as if such section were in force at such date;
"Remote Transmission Assets" - any Plant and Apparatus or meters
owned by NGC which are (a) embedded in the Distribution System of
an Authorised Electricity Operator and are not directly connected
by lines and plant owned by NGC to a sub-station owned by NGC and
(b) are by agreement between NGC and such Authorised Electricity
Operator under the direction and control of such Authorised
Electricity Operator;
"Review Date" - 1st April 1993 and each successive third
anniversary of such date during the term of this Agreement but
construed subject to the provisions of Sub-Clauses 2.4 to 2.8 and
the expression "Relevant Review Date" shall be construed
accordingly;
"Schedule Day" - the period from 0500 hours in the Settlement Day
until 0500 hours in the next following Settlement Day;
"Second Tier Customer" - a person who is supplied with Electricity
by a Second Tier Supplier;
"Second Tier Supplier" - a holder of a Second Tier Supply Licence
granted under Section 6(2)(a) of the Act;
"Secondary Response" - in relation to a Generating Unit the
automatic response to Frequency changes which is fully available
by 30 seconds from the time of Frequency change to take over from
Primary Response and which is sustainable for at least a further
30 minutes;
"Secretary of State" - the same meaning as in the Act;
"Settlement Day" - the period from 0000 to 2400 hours each day;
"Settlement Period" - a period of 30 minutes ending on the hour
and half hour in each hour during the Schedule Day;
"Settlement System" - 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" - the person appointed for the
time being or any replacement thereof from time to time pursuant
to the Pooling and Settlement Agreement to operate all or part of
the Settlement System;
"Shutdown" - the condition of a Generating Unit where the
generator rotor is at rest or on barring;
"Site" (i) a Grid Entry Point;
(ii) a Grid Supply Point or Bulk Supply Point;
(iii) the point of connection of a Generator which is
Embedded or of a Second Tier Supplier or of a Second Tier Customer
to a Distribution System or the NGC Transmission System;
(iv) the point of connection of two Distribution Systems; or
(v) the point of connection of an External Interconnection to
the NGC Transmission System;
"Spin Pump Mode" - in relation to a Pumped Storage Unit the
condition where the Pumped Storage Unit is rotating at Synchronous
Speed with the pump de-watered;
"Spinning in Air" - the condition where a Pumped Storage Unit is
rotating at Synchronous Speed with the turbine de-watered and is
programmed to generate automatically if System Frequency falls to
a designated level;
"Start-Up" - the action of bringing a Generating Unit from
Shutdown to Synchronous Speed;
"Start-up Price" - the start-up component of the Generation Offer
Prices;
"Supplemental Agreement" - an agreement to be entered into between
NGC and the Generator covering each Connection Site of the
Generator pursuant to the Master Connection Agreement and in the
form required by the Master Connection Agreement;
"Supplier" - a PES or a Second Tier Supplier;
"Synchronous Compensation" - the operation of rotating synchronous
Apparatus for the specific purpose of either the generation or
absorption of Reactive Power;
"Synchronised" - the condition where an incoming Generating Unit
or System is connected to the busbars of another System so that
the Frequencies and phase relationships of that Generating Unit or
the System, as the case may be, and the System to which it is
connected are identical; "Synchronise" and Sychronisation" shall
be construed accordingly;
"Synchronous Speed" - that speed required by a Generating Unit to
enable it to be synchronised to a System;
"System" - any User System or the NGC Transmission System as the
case may be;
"System Ancillary Services" - any or all of the following:
Reactive Power;
Primary Response;
Secondary Response;
Five Minute Reserve;
Frequency Response by means of Gas Turbine Unit Fast Start;
Frequency Response by means of Pumped Storage Unit Fast
Start;
Black Start Capability;
"Total Shutdown" - the situation existing when all generation has
ceased and there is no electricity supply from External
Interconnections and, therefore, the Total System has shutdown
with the result that it is not possible for the Total System to
begin to function again without NGC's directions relating to a
Black Start;
"Total System" - the NGC Transmission System and all User Systems
in England and Wales;
"Transfer Scheme" - the transfer scheme made by the Central
Electricity Generating Board established under Section 66 of the
Act or by the Secretary of State under Section 69 of the Act;
"Transmission Licence" - the Licence granted to NGC under Section
6(1)(b) of the Act;
"User" - any person using the NGC Transmission System;
"User System" 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 liens 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 Systems, as the
case may be, including any Remote Transmission Assets 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.
Schedule K
Part 1
Canceled Starts
Generation Unit Period before Synchronisation
Part 2
Hot Standby
Generation Unit Value of H
DATED 1990
THE NATIONAL GRID COMPANY PLC
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INTERFACE AGREEMENT - CONTENTS
Clause
Title
Page
1 Definitions and Interpretation 1
2 Right to Retain Asset 12
3 Modifications, Replacments and Alterations 13
4 Security and Compliance with Statutes etc. 14
5 Relocations 17
6 Removals 19
7 Rights of Access 20
8 Services and Use of Assets 23
9 Payment 24
10 Non-Interference 25
11 Cable Tunnels 26
12 Dispute Resolution 27
13 Governing Law and Jurisdiction 30
14 Confidentiality 31
15 Title to Assets 37
16 Limitation of Liability 39
17 Intellectual Property 41
18 Force Majeure 42
19 Waiver 43
20 Notices 43
21 Variations 44
22 Overriding Provisions 44
23 Assignment and Sub-Contracting 45
24 Illegality and Partial Invalidity 45
25 Term and Termination 46
26 Registration and Memorandum 46
27 Entire Agreement 47
Schedule 1 Genco's Assets on NGC's Land
Schedule 2 Genco's Land
Schedule 3 NGC's Assets on Genco's Land
Schedule 4 NGC's Land
Schedule 5 Part I - Security Details
Part II - Plant MV LV Apparatus
Safety Co-ordination Procedures
Schedule 6 Common Assets
Schedule 7 Services
Schedule 8 Charges
Schedule 9 Addresses, Fax No's etc.
INTERFACE AGREEMENT
THIS DEED OF AGREEMENT is made on the date stated on the Cover
between the Parties stated thereon
WHEREAS
(A) Certain assets of NGC (including assets of third parties
used by NGC under arrangements with such third parties) are
situated on property title to which (by way of freehold or
leasehold) is vested in Genco;
(B) Certain assets of Genco (including assets of third parties
used by Genco under arrangements with such third parties)
are situated on property title to which (by way of freehold
or leasehold) is vested in NGC; and
(C) Certain assets and facilities of one party, whether situated
on that party's property or not, are required for use by
both parties in the carrying on of their respective
undertakings.
(D) This Agreement is entered into by the parties to give effect
to appropriate arrangements in respect of such assets and
the use of assets and facilities.
NOW IT IS HEREBY AGREED as follows:-
DEFINITIONS AND INTERPRETATION
In this Agreement, the following words and expressions
shall, unless the subject-matter or context otherwise
requires or is inconsistent therewith, bear the following
meanings:-
"the Act" the Electricity Act 1989;
"Asset" a Genco Asset or an NGC Asset (as the case may be);
"Affiliate" in relation to a Party means any holding company or
subsidiary of that Party or any subsidiary of a holding
company of that Party, 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 of 1989
and if that section is not in force at the date of this
Agreement as if such section were in force at such date;
"CEGB" the Central Electricity Generating Board;
"Common Asset" an asset specified in Schedule 6;
"Competent includes the Director and any local or national agency,
Authority" authority, department, inspectorate, minister, ministry,
official or public or statutory person (whether autonomous or not)
of, or to the government of, the United Kingdom or the European
Community;
"Connection the Master Connection and Use of System Agreement
Agreement" entered into by, among others, the Parties regarding, among
other things, the connection of Genco's Plant and Apparatus (as defined
therein) to the NGC Transmission System (as defined therein) and the use
by Genco of such system;
"Cover" the page of this Deed headed as such which
page shall form part of this Deed;
"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 ofpersons to whom the Directive is addressed)
and includes any modification, extension or replacement
thereof then in force;
"the Director" the Director General of Electricity
Supply appointed for the time being pursuant to Section 1(1) of the
Act by the Secretary of State;
"Electricity Genco's licence granted pursuant to
S.6(1)(a) of the Generating Act; Licence"
"Emergency in relation to a Party, all employees of
that Party who Personnel" have appropriate knowledge and
experience and are recognised by that Party as being able to
carry out competently and safely emergency action for
the purposes of clause 10;
"Force Majeure" in relation to a Party, any event or
circumstance which is beyond the reasonable control of that
Party, and which results in or causes the failure of that
Party to perform any of its obligations under this Agreement
including any 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 of
explosion, fault or failure of plant and apparatus which
could not have been prevented by Good Industry Practice,
governmental restraint, Act of Parliament legislation, bye-law
and Directive (not being any order, regulation or directive 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;
"Genco's Assets" those assets listed in Schedule 1
(including any plinths
or other structures (excluding buildings) to
or upon which the same are affixed and to or
upon which no assets of any other person
are affixed and any straps, bolts or other such
things for attachment thereto) as any of the same may
be Modified pursuant to this
Agreement;
"Genco's Land" the land described in Schedule 2;
"Genco Radio all that telecommunications equipment owned
or
Equipment" operated by Genco and situated on NGC
Radio
Towers and Masts and listed in Schedule 1;
"Genco Radio those radio towers and masts owned by Genco
and
Towers and Masts" and not situated on NGC's Land but on
which NGC
Radio Equipment is situated;
"Good Industry the exercise of that degree of skill,
diligence,
Practice" 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;
"Grantee" in any particular case the owner of the Asset
in question;
"Grantor" the owner of Grantor's land;
"Grantor's Land" Genco's Land and/or NGC's Land as the
context so
requires;
"the Grid Code" the document or documents produced
pursuant to the
NGC Transmission Licence, as from time to
time revised
in accordance with the NGC Transmission
Licence;
"High Voltage electric lines of a nominal voltage exceeding
132
Lines" kilovolts;
"HV" of a nominal voltage exceeding 650 volts;
"Intellectual patents, trademarks, service marks,
rights in designs,
Property" trade names, copyrights and topography rights
(whether
or not any of the same is registered and
including
applications for registration of any of the
same) and
rights under licences and consents in
relation to any
of the same and all rights or forms of
protection of a
similar nature or having equivalent or
similar effect to
any of the same which may subsist anywhere in
the
world;
"Interconnectors" the electric lines, electrical plant and
meters owned
or operated by NGC for the transmission of
electricity
into or out of transmission systems in France
or
Scotland;
"Modification" in relation to an Asset, any alteration to or
replacement
of such Asset pursuant to clause 3.1 of this
Agreement
and "Modify" and "Modified" shall be
construed
accordingly;
"NGC's Assets" those assets listed in Schedule 3 (including
any plinths
or other structures (excluding buildings) to
or upon
which the same are affixed and to or upon
which no
assets of any other person are affixed and
any straps,
bolts or other such things for attachment
thereto) as
any of the same may be Modified pursuant to
this
Agreement;
"NGC's Land" the land described in Schedule 4;
"NGC Radio all that telecommunications equipment
owned or
Equipment operated by NGC and situated from time to
time on
Genco Radio Towers and Masts as listed in
Schedule 3.
"NGC Radio those radio towers and masts owned by
NGC and not
Towers and Masts" situated on Genco's Land but on which
Genco Radio
equipment is situated;
"NGC NGC's licence granted pursuant to
Section 6(1)(b)
Transmission of the Act;
Licence"
"Party" each person for the time being and from time
to time
part to this Agreement and any successor(s)
in title
to, or permitted assign(s) of, such person;
"Permitted in relation to a Right of Access, the
purpose specified
Purpose" in the clause granting such Right of Access;
"Providing Party" in the context of clause 8, a Party in
whom title to a
Common Asset is vested;
"Recipient" in the context of clause 8, the Party
which is the
recipient of the Services;
"Relocation a proposal by the Grantor to the Grantee
pursuant to
Proposal" sub-clause 5.1 for the relocation of any of
the Grantee's
Assets;
"Right of Access" full right and liberty during the
currency of this Agreement
to enter upon and through and remain upon any
part of
the Grantor's Land to the extent necessary
for a Permitted
Purpose and subject to the provisions of
clause 7;
"Services" in the context of clause 8, the goods
and services
specified in Schedule 7;
"Supplemental an agreement entered into between the Parties
in
Connection substantially the form set out in the
appropriate
Agreement" schedule to the Connection Agreement;
"Supplier" in the context of clause 8, the Party
which is the provider
of Services to the Recipient;
"Transfer Scheme" the scheme of that name made pursuant to
the Act; and
"Using Party" in relation to a Common Asset, the Party
(not being the
Providing Party) which uses that Asset.
In this Agreement:-
(i) unless the context otherwise requires all references to a
particular clause, sub-clause, paragraph or Schedule shall
be a reference to that clause, sub-clause, paragraph or
Schedule in or to this Agreement;
(ii) the table of contents and headings are inserted for
convenience only and shall be ignored in construing this
Agreement;
(iii) references to the words "include" or "including" are to
be construed without limitation to the generality of the
preceding words;
(iv) unless there is something in the subject matter or the
context which is inconsistent therewith, any reference to an
Act of Parliament or any Section thereof or Schedule
thereto, or other provision thereof or any instrument, order
or regulation made thereunder shall be construed at the
particular time as including a reference to any
modification, extension, replacement or reenactment thereof
then in force and to all instruments, orders or regulations
then in force and made under or deriving validity from the
relevant Act of Parliament; and
(v) references to the masculine shall include the feminine and
references in the singular shall include the plural and vice
versa and words denoting natural persons shall include
companies, corporations and any other legal entity and vice
versa.
RIGHT TO RETAIN ASSET
Subject to sub-clause 5.1, NGC hereby grants to Genco the right
to retain and replace as provided in this Agreement Genco's
Assets on NGC's Land in such places as they are currently
situated and such right shall extend to any Modified Genco Asset.
NGC shall maintain any shelter and/or support enjoyed by an such
Asset at the date of this Agreement or, if later, when relocated
on NGC's Land in accordance with clause 5 and shall further
maintain in good condition any NGC Radio Towers and Masts to
which Genco Radio Equipment is attached or by which it is
supported and grants to Genco a Right of Access for the purpose
of the maintenance, inspection, testing, removal, operation,
Modification or repair of any of Genco's Assets. For the purpose
of carrying out the said maintenance of the NGC Radio Towers and
Masts NGC may upon the expiry of reasonable prior notice to Genco
take any steps reasonably necessary in respect of Genco's Radio
Equipment to enable such maintenance work to be carried out.
Subject to sub-clause 5.1, Genco hereby grants to NGC the right
to retain and replace as provided in this Agreement NGC's Assets
on Genco's Land in such places as they are currently situated and
such right shall extend to any Modified NGC Asset. Genco shall
maintain any shelter and/or support enjoyed by any such Asset at
the date of this Agreement or, if later, when relocated on
Genco's Land in accordance with clause 5 and shall further
maintain in good condition any Genco Radio Towers and Masts to
which NGC Radio Equipment is attached or by which it is supported
and grants to NGC a Right of Access for the purpose of the
maintenance, inspection, testing, removal, operation,
Modification or repair of any of NGC's Assets. For the purpose
of carrying out the said maintenance of the Genco Radio Towers
and Masts Genco may upon the expiry of reasonable prior notice to
NGC take any steps reasonably necessary in respect of NGC's Radio
Equipment to enable such maintenance work to be carried out.
MODIFICATIONS REPLACEMENTS AND ALTERATIONS
A Party may at its own expense replace or alter any of its Assets
provided that:-
the replacement Asset or the Asset as so altered:-
(i) is placed in the same or approximately the same position;
(ii) fulfills the same or a similar purpose;
(iii) can, where relevant, be accommodated in and on existing
buildings
or structures;
(iv) does not require additional or improved facilities or
services from
the Grantor;
(v) does not restrict the actual and intended use of the
Grantor's Land
and any equipment thereon or therein to any materially
greater
extent than the Asset so replaced or altered; and
(vi) is either of the same or a similar or smaller size or the
alteration is
effected substantially within the space occupied by such
Asset to
enable the Asset to be used up to its full capability; and
prior written notification has been given to the Grantor.
If any replacement or alteration permitted by clause 3.1 shall
require minor alterations or works to the existing buildings or
structures housing or supporting the Asset in question, such
alterations or works may be carried out (with the prior written
approval of the Grantor (such approval not to be unreasonably
withheld or delayed)) but at the cost of the Grantee.
To the extent that any of the conditions of clause 3.1 are not
met in relation to any replacement or alteration, the Grantor may
by notice in writing require the Grantee promptly to remove such
replacement or alteration and, if the Grantee fails to do so, may
remove the same itself at the cost and expense of the Grantee.
On such removal, the Grantee may reinstate the Asset so replaced
or altered.
The Grantee shall, if considering moving, replacing, or altering
any of the Grantee's Assets, give due consideration as to whether
it shall be operationally practicable, desirable and reasonably
economic to move such Asset to (or place the replacement or
altered Asset on) its own property.
SECURITY AND COMPLIANCE WITH STATUTES etc.
Each party undertakes to maintain and provide security in
relation to the other Party's Assets in accordance with the
arrangements set out in Part I of Schedule 5.
Each party shall procure that, as between the Parties, all
reasonable and necessary steps are taken, as and when necessary
or desirable, in cooperation with the other (and, so far as
applicable, with any third party), to ensure compliance with the
provisions (each such provision or part thereof being in this
clause 4 an "Obligation") of:-
(i) all statutes and Directives applicable to any Asset and/or
any part
(including the whole) of Genco's Land and/or NGC's Land;
(ii) any statue or Directive which may affect any other property
(of
whatever nature) of either Party as a result of the
existence,
nature, location, or manner of operation of any Asset; and
(iii) any statute or Directive requiring the reporting of any
occurrence
relating to or affecting any Asset and/or Genco's Land
and/or
NGC's Land (including the Reporting of Injuries Diseases and
Dangerous Occurrence Regulations 1985 and the Electricity
Supply Regulations 1988).
Each Party shall, so far as it is aware of the same, unless it
has reasonable grounds for believing that the other Party
possesses the information, keep the other Party informed of all
matters relating to any Obligation or potential Obligation and/or
the extent to which such Obligation may be applicable.
In the event of any dispute as to responsibility, as between the
Parties, pursuant to clause 4.2, for compliance with an
Obligation, that responsibility shall be allocated, so far as
practicable, on the basis that:-
(i) each Party shall refrain from taking or permitting any act
or
omission which would prevent compliance with an Obligation;
and
(ii) positive action required in relation to a Party's property
as a
consequence of the existence, nature, location or manner of
operation of that property or any other property of that
Party
shall be the responsibility of that Party, and, to the
extent that
such action is required in respect of or affecting any
property
of the other Party (or property of a third party located in
or on
that other Party's Land), such action may be taken with the
prior approval of that other Party (such approval, subject
to
(i) above, not to be unreasonably withheld or delayed).
The provisions for safety coordination between the Parties
contained in Part II of Schedule 5 shall apply.
RELOCATIONS
At any time and from time to time during the term of this
Agreement, the Grantor may with the prior written consent of the
Grantee (such consent not be unreasonably withheld or delayed)
require the Grantee to relocate any of the Grantee's Assets
either to a different location on the Grantor's Land or to the
Grantee's or a third party's land, such consent to be sought and
given or refused in accordance with the following procedure:-
The Grantor shall serve a written notice on the Grantee, which
notice shall specify:-
(a) the Grantee's Assets which the Grantor wishes to be
relocated;
(b) the reasons for such wish;
(c) the proposed new location for such Assets; and
(d) the timing of the carrying out of such relocation.
The Grantee shall within one month of receipt of any such notice
(or such longer period as shall be reasonably necessary) serve a
counter notice stating:-
(a) whether or not in its reasonable opinion such Relocation
Proposal is
acceptable to it;
(b) if the Relocation Proposal is not acceptable to the Grantee,
the grounds
for such opinion and the terms of any alternative proposal
(the
"Alternative Relocation Proposal") covering so far as
relevant the
matters referred to in items (a) - (d) of clause 5.1.1 which
would be
acceptable to the Grantee; and
(c) in respect of the Relocation Proposal (if accepted) or of
any Alternative
Relocation Proposal, the costs likely to be incurred in
connection with
considering the Relocation Proposal or the Alternative
Relocation Proposal
and effecting the said relocation of the Assets and the
proper and
reasonable costs of relocating any other equipment that may
be necessary
as a result of the relocation of those Assets and any
consequential losses
including payments to third parties incurred as a result of
the relocation
of those Assets and the proposed manner and timing of
payment of the
same by the Grantor.
If within one month of the date of such counter notice (or such
longer period as shall be reasonably necessary) the Grantor has
not withdrawn the Relocation Proposal and the Parties have not
agreed upon it or the Alternative Relocation Proposal (if any) or
a variation of either of them (such agreement to include
agreement on the costs referred to in item (c) of clause 5.1.2)
the matter shall be dealt with in accordance with Clause 12.
Upon approval or settlement of any Relocation Proposal,
Alternative Relocation Proposal or variation thereof pursuant to
clause 5.1, the Grantee shall relocate or procure the relocation
of the relevant Assets as quickly as reasonably practicable
(having regard to, amongst other things, technical and
operational requirements and to its obtaining all necessary
licences and consents).
The Grantor shall pay to the Grantee all costs referred to in
item (c) of clause 5.1.2 as agreed or settled pursuant to clause
5.1 provided that all reasonable endeavours are used to minimise
such costs and in the event that a Relocation Proposal is
withdrawn or consent thereto is reasonably withheld pursuant to
clause 5.1, the Grantor shall pay to the Grantee all costs
reasonably incurred by the Grantee in connection with considering
the Relocation Proposal and any counter notice.
Such of the provisions of this Agreement as are appropriate and
relevant (including the provisions of this clause 5), shall
continue to apply to any relocated Assets.
REMOVALS
Whenever any of NGC's Assets shall become unusable for the
purpose for which it was designed or shall not have been used for
a continuous period of at least twelve months, Genco may, by
notice in writing to NGC, require NGC to remove such Asset, at
NGC's expense, from Genco's Land as quickly as practicable and in
any event before the first anniversary ("the Removal Date") of
the date of service of such notice unless:-
(i) Genco shall within the thirty days following service of such
notice have
been reasonably satisfied that the Asset will be used by NGC
before the
Removal Date, (or such later date as NGC shall propose as is
reasonable
in all the circumstances including the plans of either Party
for subsequent
use of the Asset in question or the space occupied by such
Asset); and
(ii) the Asset is so used.
In the event that there shall cease to be any Supplemental
Connection Agreement relating to any of Genco's Assets on NGC's
Land Genco shall remove all of Genco's Assets from NGC's Land as
quickly as practicable and in any event within the period
provided in the Connection Agreement.
In the event that there shall be a Disconnection (as defined in
the Connection Agreement) of all Plant and Apparatus (as so
defined) of Genco on NGC's Land then NGC will within 24 months of
the date of notice of intended Disconnection remove from Genco's
Land all of NGC's Assets not falling within the definition "NGC
Assets" under the Connection Agreement and Genco shall pay to NGC
one half of the costs reasonably incurred by NGC in so doing.
Provided that where NGC's Land comprises two (or more) separate
parcels of land and it is operationally necessary for the
purposes of the business carried on by NGC on NGC's land for NGC
to retain any of NGC's Assets on Genco's Land notwithstanding the
Disconnection then in respect of such of NGC's Assets aforesaid
NGC shall not be under the obligation to remove them from Genco's
Land until NGC no longer has any operational necessity to retain
such Assets (or any of them) on NGC's Land Provided further that
the provisions of Clause 5 hereof shall continue to apply to such
of NGC's Assets as remain on Genco's Land.
6.4 Where the Grantee is obliged to remove any of its Assets
from the Grantor's
Land, whether under this Clause 6 or otherwise, and fails to
do so in
accordance with the relevant provisions, the Grantor shall
be entitled to
remove the Asset to land of the Grantee and the Grantee
shall provide all
reasonable assistance to enable the Grantor safely so to do
and shall
pay and reimburse to the Grantor all costs and expenses (or
one half
of such costs where the obligation to remove such Assets
arose pursuant
to sub-clause 6.3) reasonably incurred by the Grantor in so
doing.
RIGHTS OF ACCESS
A Right of Access includes the right to bring on to the Grantor's
Land such vehicles, plant, machinery and maintenance or
construction materials as shall be reasonably necessary for the
Permitted Purpose.
A Right of Access given to the Grantee may be exercised by any
person, including third party contractors, reasonably nominated
from time to time by the Grantee. To the extent (if any) that
any particular authorisation or clearances may be required to be
given by the Grantor and the procedures for giving and obtaining
the same are not for the time being stipulated in arrangements
made pursuant to clause 7.3, the same shall be given within a
reasonable time from the date of the request therfor, save in the
case of emergency in which case it shall be given without delay.
The Parties 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 with the minimum of disruption, disturbance or
inconvenience to both Parties. Such arrangements and provisions
may, to the extent that the same is reasonable, limit or restrict
the exercise of the Right of Access and/or provide for one 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 provision include:-
(i) the identification of any relevant Assets;
(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 a Right of
Access;
(iv) any requirements as to prior notification and as to
authorisation
or security clearance of individuals exercising such Rights
of
Access, and procedures for obtaining the same;
(v) the means of communication to the other Party and all
employees
and/or contractors who may be authorised from time to time
by
that Party to exercise a Right of Access of any relevant
directions
or regulations made by one Party;
(vi) the identification of and arrangements applicable to
Emergency
Personnel.
Each Party shall procure that any such arrangements and/or
provisions (or directions or regulations issued pursuant thereto)
made from time to time between the Parties shall be observed and
performed by it and all persons authorised by it to exercise any
Right of Access.
.1 The Grantee shall procure that all reasonable steps are
taken in the exercise of
any Right of Access to:-
(a) avoid or minimise damage to the Grantor's Land, or any
other
property thereon or therein;
(b) cause as little disturbance and inconvenience as
possible to
the Grantor or other occupier of the Grantor's Land.
And shall promptly make good any damage caused to the
Grantor's Land and/or
such other property in the course of the exercise of such
rights and shall
indemnify the other Party against all actions, claims,
proceedings, losses, costs
and demands arising out of such exercise.
7.4.2 Subject to clause 7.4.1, all such rights shall be
exerciseable free of any charge
or payment of any kind.
Subject to any contrary arrangements for the time being made
under clause 7.3,
a Right of Access for operation or inspection shall be
available without prior notice;
a Right of Access for the purpose of maintenance, testing or
repair of HV apparatus granted in respect of land on which
exposed HV conductors are sited shall only be
exercisable on the giving of at least seven days prior
written notice to the Grantor except in the case of loss of
generation or other emergency (in which event the Grantor
shall render all possible assistance in procuring that the
Right of Access shall be exercisable as soon as possible);
and
a Right of Access for the purpose of Modifying any Asset
shall be exercisable only after two weeks prior written
notice to the Grantor.
SERVICES AND USE OF ASSETS
Subject as hereinafter provided, in relation to each Common
Asset, the Providing Party shall, if required by the Using Party,
make the Common Asset in question available for continued use by
the Using Party to at least the same extent as it was available
for use by the Using Party immediately prior to the date of this
Agreement.
Subject as hereinafter provided, in relation to each Service, the
Supplier shall, if required by the Recipient, continue to provide
the same to the Recipient. Such provision shall be of such a
quality and quantity and shall be provided at such times as the
Recipient shall reasonably request. The Supplier shall not be
required to exceed the level of quality or quantity of the
Service normally provided prior to the date of this Agreement,
unless specifically agreed otherwise between the Parties.
Where the use of any Common Asset is made available or such
Service is supplied as aforesaid, the Parties shall procure that
all reasonable arrangements and provisions are made and/or
revised from time to time, as and when necessary or desirable
between the local personnel employed by each of them in that
regard, such arrangements to include:-
the identification of the Common Assets and/or Services in
question including (where relevant) the extent of their
availability;
the hours during which such use or provision shall be
allowed or made;
any requirements as to notification of use or call for
supply or temporary
suspension thereof;
any requirements as to authorisation or security clearance
of individuals and the procedures for obtaining the same;
any safe requirements;
administration of payment arrangements; and
8.3.7 in the case of helicopter landing facilities
arrangements as to the particular areas of Genco's Land to
be available for the purpose.
The provision of use of the Common Assets listed in Schedule
6, Part one and the supply of the Services listed in Schedule
7, Part One shall not be terminated unless the Providing
Party ceases to require the Common Asset or Service for its
own use in which case the supply of the Service or use of
the Common Asset may be terminated by not less than one year's
notice in writing;
The provision of use of the Common Assets listed in Schedule
6, Part Two and the supply of the Services listed in Schedule
7, Part Two shall continue until terminated by not less than
one year's notice in writing by either Party.
Each party shall maintain any Common Asset owned by that Party in
accordance with Good Industry Practice.
PAYMENT
The Parties agree that the provision of the use of Common Assets
shall be free of charge.
The Recipient agrees to pay the Supplier the fees for the
provision of the Services calculated and payable in accordance
with the relevant provisions of Schedule 8.
The Recipient shall maintain all its relevant assets in such
repair and condition that the level of services provided does not
substantially increase as a result of the lack of repair or
condition of the relevant assets.
Each Party shall pay to the other a fee for that other's
maintenance costs in respect of that other's Radio Towers and
Masts such fee to be paid annually and calculated in accordance
with the relevant provisions of Schedule 8.
Any sums payable under this Agreement shall be payable together
with any Value Added Tax chargeable on the same. Any costs,
expenses or other sums to be repaired or reimbursed to a Party
under this Agreement shall include any Value Added Tax paid by
that Party in relation to such sums to the extent that no credit
is available in respect thereof under Section 15 of the Value
Added Tax Act 1983.
If either Party fails to pay on the due date any amount properly
due under this Agreement such Party shall pay to the other
interest on such overdue amount from and including the date of
such failure to (but excluding) the date of actual payment (as
well after as before Judgment) at the rate of 4% over Barclays
Bank PLC base rate for the time being and from time to time.
Interest shall accrue from day to day.
NON-INTERFERENCE
Each Party agrees that neither it nor its agents, employees and
invitees will interfere in any way with any of the other Party's
Assets without the consent of that other. For the purposes of
this clause "interfere" shall include:-
disconnect or alter the connection of any Asset to any
system of cables, foundations, pipes, drains or other media to
which it may be connected from time to time or to prevent
supply of any substance or thing through such connected
system;
affix or remove any item or substance of any nature
whatsoever to or from any Asset;
damage any Asset;
allowing any other person to interfere with any Asset;
alter any meters or settings on any Asset; and
the obstruction of access to any Asset.
The obligations contained in this clause 10 shall be suspended to
the extent that emergency action is taken by Emergency Personnel
in good faith to protect the health and safety of persons or to
prevent damage to property. All reasonable care shall be taken
in the course of such emergency action. When the emergency has
ended, any damaged property will be reinstated by the Party whose
Asset gave rise to the emergency, save for damage occurring by
reason of lack of reasonable care in the course of the emergency
action which shall be the responsibility of the Party taking the
emergency action.
CABLE TUNNELS
Any cable tunnels situated under land owned by either Party to
this Agreement shall be kept fully maintained and repaired on the
following basis:
in the case of cable tunnels containing the HV cables of one
Party only from time to time, maintenance of the whole tunnel
shall be the responsibility of that Party;
in the case of cable tunnels containing HV cables of more
than one Party, maintenance of the whole tunnel shall be the
responsibility of the Party with the majority in number of
such cables for the time being and the cost of such
maintenance shall be apportioned between the Parties
according to level of use;
in the case of cable tunnels containing solely cables other
than HV cables maintenance shall be the responsibility of
the Party with the majority in number of such cables for the
time being and the cost of maintenance shall be apportioned
between the Parties according to level of use;
where any part of any cable tunnel lies on or under land of
a Party not responsible in accordance with the above
provisions for the maintenance thereof that Party grants to the
responsible Party a Right of Access for all purposes necessary
to discharge its obligations under this clause 11 and shall give
all reasonable cooperation and assistance to the responsible
Party as may be requisite for the proper discharge by the
responsible Party of its obligations under this clause.
In relation to clauses 11.2 and 11.3 if neither Party has a
majority of the HV or other cables (as the case may be)
responsibility for maintenance of the tunnel shall rest with the
owner of the tunnel.
DISPUTE RESOLUTION
Any dispute arising under this Agreement between location
managers of the Parties shall, if not resolved within 14 days of
first arising, be referred at the instance of either party to the
respective Line Managers, or those fulfilling a similar function
whether or not so called, of NGC and Genco who shall use all
reasonable endeavours to resolve the matter in dispute within one
month.
Save where expressly stated in this Agreement to the contrary and
subject to any contrary provision of the Act, any Licence, or the
Regulations, or the rights, powers, duties and obligations of the
Director or the Secretary of State under the Act, any Licence or
otherwise howsoever, any dispute or difference of whatever nature
howsoever arising under out of or in connection with this
Agreement between the Parties shall be and is hereby referred to
arbitration pursuant to the arbitration rules of the Electricity
Supply Industry Arbitration Association in force from time to
time.
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 (including any modification, extension,
replacement or reenactment thereof for the time being in force)
shall apply to any such arbitration wherever the same or any part
of it shall be conducted.
Subject always to sub-clause 12.5 below, if any tariff customer
(as defined in Section 22(4) of the Electricity Act 1989) 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 parties, 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 sub-clause 12.5 below)
against the other Party ("the Other Party") which would but for
this sub-clause have been a dispute or difference referred to
arbitration by virtue of sub-clause 12.3 above then,
notwithstanding the provisions of sub-clause 12.3 above 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 Party but also between either or both of them
and the Other 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.
For the purposes of this clause Third Party Claim shall mean:-
any claim by a Defendant Party against the Other Party
(whether or not already a party to the legal proceedings) for
any contribution or indemnity; or
any claim by a Defendant Contracting Party against the Other
Party for any relief or remedy relating to or connected with
the subject matter of the legal roceedings and substantially
the same as some relief or remedy claim by the tariff
customer; or
any requirement by a Defendant 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 the Other Party (whether or
not already a party to the legal proceedings).
Sub-Clause 12.4 above shall apply only if at the time the legal
proceedings are commenced no arbitration has been commenced
between the Defendant Contracting Party and the Other 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.
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in all respects
in accordance with English law.
Subject and without prejudice to clause 12 and to clause 13.4 the
Parties irrevocably agree that the courts of England are to have
exclusive jurisdiction to settle any dispute which may arise out
of or in connection with this Agreement and that accordingly any
suit, action or proceeding (together in this clause 13 referred
to as "Proceedings") arising out of or in connection with this
Agreement may be brought in such courts.
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 13 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.
For the avoidance of doubt nothing contained in the foregoing
provisions of this clause 13 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.
CONFIDENTIALITY
For the purposes of this Clause 14 except where the context
otherwise requires:-
"Authorised Recipient", in relation to any Protected
Information, means 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 this clause 14 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 Genco under the provisions of this
Agreement.
"Corporate Functions Person" means any person who:-
is a director of NGC; or
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
is engaged as an agent of or adviser to or performs work in
relation to or services for the Main Business and the
Generation Business;
"Generation Business" has the same meaning as in the NGC
Transmission Licence;
"Main Business" means any business of NGC or any of its
associates 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;
"Permitted Activities" means activities carried on for the
purposes of the Main Business;
"Protected Information" means an 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.
Confidentiality for NGC and its Subsidiaries
NGC and its subsidiaries in each of their capacities in this
Agreement shall secure that Protected Information is not:-
divulged by Business Personnel to any person unless that
person is an Authorised Recipient;
used by Business Personnel for the purposes of obtaining for
NGC or any of its subsidiaries or for any other person:-
any electricity licence; or
any right to purchase or otherwise require, or to
distribute, electricity including by means of an
electricity purchase contract (as defined in the NGC
Transmission Licence); or
any contract or arrangement for the supply of
electricity to customers or suppliers; or
any contract for the use of any electrical lines or
electrical plant belonging to or under the control
of a supplier; and
used by Business Personnel for the purpose of carrying
on any activities other than Permitted Activities;
except with the consent in writing of the Party to whose affairs
such Protected Information relates.
Nothing in this Clause 14 shall apply:-
to any Protected Information which, before it is furnished
to Business Personnel is in the public domain;
to any Protected Information which, after it is furnished to
Business Personnel:-
is acquired by NGC or any subsidiary of NGC in
circumstances in which this Clause 14 does not
apply; or
is acquired by NGC or any subsidiary of NGC in
circumstances in which this Clause 14 does apply and
thereafter ceases to be subject to the
restrictions imposed by this Clause 14; or
enters the public domain otherwise than as a result of
a breach by NGC or any subsidiary of NGC of its obligations
in this Clause 14; or
to the disclosure of any Protected Information to any person
if NGC or any subsidiary is required or permitted to make such
disclosure to such person:-
in compliance with the duties of NGC or any associate
under the Act or any other requirement of a
Competent Authority; or
in compliance with the conditions of the NGC
Transmission Licence or any document referred to in
the NGC Trans-mission Licence with which NGC is
required to comply; or
in compliance with any other requirement of law; or
in response to a requirement of any recognised stock
exchange or regulatory authority or the Panel
on Take-overs and Mergers; or
pursuant to the Arbitration Rules for the Electricity
Supply Industry Arbitration Association or
pursuant to any judicial or other arbitral process
or tribunal; or
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 the Grid Code and the Fuel Security
Code) with the Party to whose affairs such Protected
Information relates.
NGC and its subsidiaries may use all and any information or data
supplied to or acquired by it, from or in relation to the other
Party to this Agreement in performing Permitted Activities
including for the following purposes:-
the operation and planning of the NGC Transmission System;
the calculation of charges and preparation of offers of
terms for connection to or use of the NGC Transmission System;
the operation and planning of the Ancillary Services
Business (as defined in the NGC Transmission Licence) and the
calculation of charges therefor;
the operation of the Settlements Business (as defined in the
NGC Transmission Licence);
the provision of information under the British Grid Systems
Agreement and the EdF Protocol;
and may pass the same to subsidiaries of NGC which carry out such
activities and the Parties hereto agree to provide all
information to NGC and its subsidiaries for such purposes.
NGC undertake 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 to any
Business Person 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
authorised by licence or exemption to generate, transmit or
supply electricity, or who is to be transferred to the Generation
Business save where NGC or such subsidiary could not, in all
circumstances reasonably be expected to refrain from divulging to
such Business Persons Protected Information which is required for
the proper performance of his duties.
Any copies of the Protected Information, whether in hard copy or
computerised form, will clearly identify the Protected
Information as protected.
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.
Confidentiality other than for NGC and its Subsidiaries
Genco hereby undertakes with NGC and its subsidiaries that it
shall preserve the confidentiality and secrecy of, and not
directly or indirectly reveal, report, publish, disclose or
transfer or use for its own purposes Confidential Information
except:-
14.8.1.1 in the circumstances set out in Clause 14.8.2;
14.8.1.2 to the extent expressly permitted by this
Agreement; or
14.8.1.3 with the consent in writing of NGC.
Exceptions: the circumstances referred to in Clause 14.8.1.1
are:-
14.8.2.1 where the Confidential Information, before it is
furnished
to Genco, is in the public domain; or
14.8.2.2 where the Confidential Information, after it is
furnished
to Genco:-
is acquired by Genco in circumstances which this Clause
14 does not apply; or
is acquired by Genco in circumstances in which this
Clause 14 does apply and thereafter ceases to be subject
to the restrictions imposed by this Clause 14; or
enters the public domain otherwise than as a result of
a breach by Genco of its obligations in this Clause
14; or
14.8.2.3 if Genco is required or permitted to make
disclosure of the Confidential Information to any person:-
in compliance with the duties of Genco under the Act or
any other requirement of a Competent
Authority;
in compliance with the conditions of any Licence or any
document referred in any Licence with which Genco is
required to comply;
in compliance with any other requirement of law;
in response to a requirement of any stock exchange or
regulatory authority or the Panel on Takeovers
and Mergers; or
pursuant to the Arbitration Rules for the Electricity
Supply Industry Arbitration Association or
pursuant to any judicial or other arbitral process or
tribunal.
TITLE TO ASSETS
Genco and NGC hereby agree and declare that, the Transfer Scheme
having divided the property rights and liabilities of CEGB
between the successor companies named in the Transfer Scheme,
Genco's Assets are intended to benefit the undertaking, land and
business of Genco and NGC's Assets are intended to benefit the
undertaking, land and business of NGC, and such Assets shall
accordingly be and remain severed from the Grantor's Land and be
and remain chattels of the Grantee.
Each Party acknowledges that it does not have and will not
acquire any title, right or interest in any of the other Party's
Assets save for such rights as are expressly granted herein or
otherwise provided nevertheless that, if according to any rule of
law, either Party should have any such title, right or interest
in any of the other Party's Assets, then such title right or
interest shall be held upon trust, insofar as it relates to the
Asset, for the other Party absolutely and, insofar as it relates
to the airspace occupied by the Asset and/or any adjoining
property of the first Party, for that Party absolutely.
Each Party agrees that it shall not by any act or default render
the other party's Assets liable to any distress execution or
other legal process, and in the event that such assets shall
become so liable, shall forthwith give notice of any such
proceedings to the other Party and shall forthwith notify any
third party instituting any such process of the ownership of such
Assets.
If a Party desires to mortgage or charge any of its land or its
interest therein on which any of the other Party's Assets are
located or to mortgage or charge any of its own Assets or to
enter into any arrangement which, if made, might affect the
rights of the other Party expressly granted herein, then that
Party shall ensure that the other Party's Assets are not and will
not be subject to the rights granted therein and are not and will
not be affected by the mortgage, legal charge or other agreement
or arrangement, and shall give written notification thereof to
the other Party.
In the event that either Party shall wish to grant rights over or
dispose of any interest in or change the use of any land to which
arrangements under Clauses 2 to 7 inclusive apply, that Party
shall notify the other Party of such wish and fully consult that
other in respect thereof and shall not grant such rights or make
such disposal or change of use save on terms securing to the
reasonable satisfaction of that other the Rights of Access
granted in respect of such land.
LIMITATION OF LIABILITY
Subject to sub-clauses 5.3, 6.4, 9.6, 10.2 and 16.5 and save as
provided in this sub-clause 16.1 and sub-clause 16.2 neither
Party ("the Party Liable") nor any of its officers, employees or
agents shall be liable to the other Party for loss arising from
any breach of this Agreement other than for loss directly
resulting from such breach and which at the date hereof was
reasonably foreseeable as not unlikely to occur in the ordinary
course of events from such breach and which resulted from:-
physical damage to the property of the other Party, it's
officers, employees or agents; and/or
the liability of the other Party to any other person for
loss arising from physical damage to the property of any
person.
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 the other Party, its officers, employees or agents,
from and against all such and any loss or liability which the
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.
Subject to sub-clauses 5.3, 6.4, 9.6, 10.2 and 16.5 neither
Party, nor any of its officers, employees or agents shall in any
circumstances whatsoever be liable to the other Party for:-
any loss of profit, loss of revenue, loss of use, loss of
contact or loss of goodwill; or
any indirect or consequential loss; or
loss resulting from the liability of the other Party to any
other person howsoever and whensoever arising save as provided
in sub-clauses 16.1.2 and 16.2.
The rights and remedies provided by this Agreement to the Parties
are exclusive and not cumulative and exclude and are in place of
all substantive (but not procedural) rights or remedies express
or implied and provided by common law or statute in respect of
the subject matter of this Agreement, including any rights either
Party may possess in tort which shall include actions brought in
negligence and/or nuisance. Accordingly, each of the Parties
hereby waives in the fullest extent possible all such rights and
remedies provided by common law or statute, and releases the
Party Liable, 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.
Save as otherwise expressly provided in this Agreement, this
clause 16 insofar as it excludes or limits liability shall
override any other provision in this Agreement provided that
nothing in this clause 16 shall exclude or restrict or otherwise
prejudice or affect any of:-
the rights, powers, duties and obligations of either Party
which are conferred or created by the Act, the Electricity
Generating Licence, the NGC Transmission Licence or the
Electricity Supply Regulations 1988 or any amendment or
reenactment thereof; or
the rights, powers, duties and obligations of the Director
or the Secretary of State under the Act, any such Licence as
aforesaid or otherwise howsoever.
Each of the sub-clauses of this clause 16 shall:-
be construed as a separate and severable contract term, and
if one or more of such sub-clauses is held to be invalid,
unlawful or otherwise unenforceable the other or others of
such sub-clauses shall remain in full force and effect and
shall continue to bind the Parties; and
survive termination of this Agreement.
Each Party agrees that the Other Party holds the benefit of sub-
clauses 16.1, 16.2 and 16.3 above for itself and as trustee and
agent for its officers, employees and agents. Each Party hereby
acknowledges and agrees that the provisions of this clause 16
have been the subject of discussion and negotiation and are fair
and reasonable having regard to the circumstances as at the date
hereof.
INTELLECTUAL PROPERTY
All Intellectual Property relating to the subject matter of this
Agreement conceived, originated, devised, developed or created by
a Party, its officers, employees, agents or consultants during
the currency of this Agreement shall vest in such Party as the
sole beneficial owner thereof save where the Parties agree in
writing otherwise.
FORCE MAJEURE
If either Party (the "Non-Performing Party") shall be unable to
carry out any of its obligations under this Agreement due to a
circumstance of Force Majeure this Agreement shall remain in
effect but save as otherwise provided herein the Non-Performing
Party's obligations hereunder shall be suspended without
liability for a period equal to the circumstance of Force Majeure
provided that:-
(i) the Non-Performing Party gives the other Party prompt
notice describing the circumstance of Force Majeure, including
the nature of the occurrence, its expected duration and the
particular obligations affected by it, and continues to
furnish regular reports with respect thereto during the
period of Force Majeure;
(ii) the suspension of performance is of no greater scope
and of
no longer duration than is required by the Force Majeure;
(iii) no liabilities of either Party that arose before
the Force Majeure causing the suspension of performance are
excused as a result of the Force Majeure;
(iv) the non-performing Party uses all reasonable efforts to
remedy its inability to perform; and
(v) as soon as practicable after the event which
constitutes Force Majeure the Parties shall discuss how best
to continue their operations so far as possible in accordance
with this Agreement.
WAIVER
No delay by or omission of a Party in exercising any right,
power, privilege or remedy under this Agreement shall operate to
impair such right, power, privilege or remedy or be construed as
a waiver thereof. Any single or partial exercise of any such
right, power, privilege or remedy shall not preclude any other or
future exercise thereof or the exercise of any other right,
power, privilege or remedy.
NOTICES
Any notice or other communication to be given by one Party to the
other under, or in connection with the matters contemplated by
this Agreement shall be addressed to the recipient and sent to
the address, telex number or facsimile number of such other Party
given in Schedule 9 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 20 to the Party giving the relevant notice or other
communication to it.
Any notice or other communication to be given by one Party to the
other party under, or in connection with the matters contemplated
by this Agreement shall be 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:-
in the case of delivery by hand, when delivered; or
in the case of first class prepaid post, on the second day
following the day of posting or (if sent airmail from
overseas) on the fifth day following the day of posting; or
in the case of telex, on the transmission of the automatic
answerback 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 trans- mission; or
in the case of facsimile, on acknowledgment by the
addressee's facsimile receiving equipment (where such
acknowledgment occurs before 1700 hours on the day of
acknowledgment) and in any other case on the day following the
day of acknowledgment.
VARIATIONS
The provisions of Schedules 1, 3, 6, 7 and 8 may be varied from
time to time by written memorandum signed by an authorised
officer of each of the Parties. Subject thereto no variations to
this Agreement shall be effective unless made by way of
supplemental deed.
OVERRIDING PROVISIONS
In the event of any conflict between NGC's or Genco's obligation
hereunder and their obligations under the Electricity Generating
Licence and NGC Transmission Licence, the Act, any direction of
the Secretary of State, the Director or ruling of the Monopolies
and Mergers Commission, the Grid Code, under any Connection
Agreement or under any Supplemental Connection Agreement, the
provisions of the Electricity Generating Licence and NGC
Transmission Licence, the Act, the Grid Code, any Connection
Agreement or Supplemental Connection Agreement, the direction of
the Secretary of State, the Director, or ruling of the Monopolies
and Mergers Commission shall prevail and accordingly NGC and
Genco respectively shall not be responsible for any failure to
perform their respective obligations hereunder to the extent that
any such failure is directly attributable to proper compliance
with such provisions, rulings or directions.
The provisions of the Agreement of even date herewith between the
Parties relating to access to or use of property or equipment
affected by a nuclear site licence ("the Nuclear Sites
Agreement") shall apply to this Agreement and in the event of any
inconsistency between the provisions of this Agreement and the
provisions of the Nuclear Sites Agreement the provisions of the
latter shall prevail.
ASSIGNMENT AND SUB-CONTRACTING
The rights and obligations of a Party may not be assigned
(otherwise than to an Affiliate or by way of a charge or an
assignment by way of security) without the consent of the other
Party, such consent not be unreasonably withheld.
Each Party shall have the right to sub-contract or delegate the
performance of any of its obligations or duties arising under
this Agreement without the consent of the other. The sub-
contracting by either Party of the performance of any obligations
or duties under this Agreement shall not relieve such Party from
the liability for performance of such obligation or duty.
ILLEGALITY AND PARTIAL INVALIDITY
If at any time any provision of this Agreement should become or
be declared unlawful, invalid, illegal or unenforceable in any
respect under the law of any jurisdiction, neither the validity,
legality or enforceability of the remaining provisions nor the
validity, legality or enforceability of such provision under the
law of any other jurisdiction shall be affected.
If any part of a provision of this Agreement is or becomes or is
declared invalid, unlawful, illegal or unenforceable but the rest
of such provision would remain valid, lawful or enforceable if
part of the wording were deleted the provision shall apply with
such modifications as may be necessary to make it valid, lawful,
enforceable and effective but without affecting the meaning of
legality, validity or enforceability of any other provision of
this Agreement.
TERM AND TERMINATION
This agreement shall continue until none of NGC's Assets are on
Genco's land, and none of Genco's Assets are on NGC's land and no
Common Assets or Service are shared or provided.
REGISTRATION AND MEMORANDUM
Where any or all of the Grantor's Land is registered or the
Grantee's interest therein is subject to compulsory registration
at H.M. Land Registry, the parties hereto agree to apply to the
Chief Land Registrar for the registration as appropriate of the
rights and obligations granted by or contained in this Agreement
and further agree to place on deposit at H.M. Land Registry all
relevant Land or Charge Certificates to enable such registration
to be effected.
Where any of the Grantor's Land is not so registered or subject
to compulsory registration, each Party shall procure within six
months of the date hereof that memoranda of this agreement are
endorsed on or otherwise securely attached to the most recent
conveyance (in the case of a freehold interest) or the lease
under or pursuant to which they hold such land.
ENTIRE AGREEMENT
This Agreement contains the entire agreement between the Parties
with respect to he subject-matter hereof, and expressly excludes
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:-
(i) each of the Parties acknowledges and confirms that it
does not enter into this Agreement in reliance on
any representation, warranty or other undertaking
not fully reflected in the terms of this Agreement; but
(ii) the parties acknowledge that each of them may have
entered or may enter into agreements with any
Public Electric Supplier (as defined in the Act)
containing similar rights and/or liabilities to those contained
in this Agreement affecting NGC's Land and/or Genco's
Land and any assets thereon. The Parties shall,
when entering into such agreement with any of the said
Public Electricity Suppliers, use reasonable endeavours to avoid
conflicts between the provisions thereof and the
provisions of this Agreement but in the event of
any conflict the parties shall procure that
appropriate arrangements are made to settle the same to give
full effect
(so far as practicable) to the rights and liabilities
under this Agreement and under such other
agreements as aforesaid. Where relevant the
provisions of Clause 7.3 shall apply. In the event of any
dispute as to such conflict and/or arrangements the
dispute shall be dealt with in
accordance with Clause 12.
IN WITNESS whereof this Agreement has been entered into under
seal the day and the year first above written.
SCHEDULE 1
Genco's Assets on NGC's Land
[To be drawn from appropriate Schedule to Divisionalisation
Scheme, but to comprise fundamental operational assets on the
relevant site,] e.g.:-
(a) HV Apparatus [including/comprising] busbar isolators,
circuit
breaker, earth switch, current transformer, voltage
transformer;
(b) Termination Apparatus [including/comprising] overhead
connection tension insulators and downdroppers/HV
cable sealing ends;
(c) Protection, control and alarm apparatus (including
associated
panels and multicore cabling);
(d) Intertrip apparatus;
(e) Standby diesels;
(f) Connections to compressed air installations;
(g) Sections of water washing installations.
(h) Spares [excluding Strategic Spares].
(i) Metering equipment.
To the extent not included as part of such assets the same shall
be deemed to include all control and auxiliary cables and their
associated terminations, pipes and ducts and other ancillary
equipment exclusively serving the same.
SCHEDULE 2
Genco's Land
All that the land with the buildings and/or structures thereon
all which land is shown for the purpose of identification only
edged red on the attached plan but excluding the area coloured
pink thereon.
SCHEDULE 3
NGC's Assets on Genco's Land
[To be drawn from appropriate Schedule to Divisionalisation
Scheme, but to comprise fundamental operational assets on the
relevant site,] e.g.:-
(a) HV Apparatus including/comprising HV Cable, Cable
Termination and Circuit Breaker;
(b) MV Apparatus including/comprising MV Cable, Cable
Termination and Circuit Breaker;
(c) Protection, control and alarm apparatus (including
associated panels and multicore cabling);
(d) Intertrip apparatus;
(e) Standby diesels;
(f) Connections to compressed air installations;
(g) Sections of water washing installations.
(h) Cathodic Protection
(i) Aerials
(j) Telecoms equipment
(k) Spares
(l) Metering equipment
To the extent not included as part of such assets the same shall
be deemed to include all control and auxiliary cables and their
associated terminations, pipes and ducts and other ancillary
equipment exclusively serving the same.
SCHEDULE 4
NGC'S Land
All that the land with the buildings and/or structures thereon
all which land is shown for the purpose of identification only
coloured pink on the attached plan.
SCHEDULE 5
PART I
Security Details (Cl.4)
1. NGC's Land
Security of NGC Site Compounds will be maintained in accordance
with the Electricity Supply Regulations 1988, which in the case
of compounds containing exposed HV apparatus will be by a fence
not less than 2.4 metres high or alternative enclosure. All
buildings not enclosed within a site compound fence will be
securely locked to restrict unauthorised access. A local
management instruction will apply to the issue of security keys.
2. Genco's Land
Security arrangements for Genco's Land will take the general form
as described below but specifically to accord with the
instructions issued by the Station Manager (or other person
fulfilling the same or a similar function whether or not so
called):-
(a) Controlled entry points
(b) Security monitoring system
(c) Specific high security fencing or alternative enclosure
of any HV apparatus with any live exposed connections.
Part II
Plant MV LV Apparatus Safety Coordination procedures (Cl. 4.5)
(1) In this Clause:-
"Apparatus" means all equipment in which electrical
conductors
used, supported or of which they may form a
part;
"Connection Site" shall have the meaning given to it in
the Grid Code;
"Existing Rules" means the rules, procedures or current
arrange-
ments for and relating to safety coordination
across
boundaries (to permit work to or testing on
the
System of one of the Parties which, for this
to be
done safely, requires isolation and/or other
precautions on Plant and/or MV and/or LV
Apparatus whether at, adjacent to or remote
from
the location of the work or testing) which
are in
force followed or complied with at Genco's
Land
and NGC's Land at the date of this Agreement;
"Low Voltage" means a voltage not exceeding 250 volts;
or "LV"
"Medium Voltage" means a voltage exceeding 250 volts but
not
or "MV" exceeding 650 volts;
"Plant" means fixed and moveable items used in
the
generation and/or supply and/or transmission
of electricity, other than Apparatus.
(2) The Parties will continue to comply with the Existing Rules
pending any agreed
modifications thereto.
(3) The Parties will arrange for the Existing Rules (if not
already in writing) to be
written down and, in any event, to be agreed between the
person or persons
responsible on behalf of the relevant Parties for the
coordination of safety at
each Connection Site(s).
SCHEDULE 6
Common Assets (Cl. 8.1)
Part One
(a) The Batteries Synchronisers and Highland alarm and data
loggers (if any) detailed on the attached list.
Part Two
Such of the following items (if any) and any other items shown on
the
attached list:
(b) Communicating Equipment
(c) Connections to insulating oil and SF6 gas
installations
(d) Site lighting
(e) Miscellaneous LV/MV cabling
(f) Mobile Radioactive Apparatus
SCHEDULE 7
Services (Cl. 8.2)
Part One
Such of the following services (if any) detailed on the attached
list:
(a) AC electrical supplies
(b) Compressed air for switchgear operation
(c) Water Supplies (other than domestic)
(d) DC electrical supplies
Part Two
Such of the following services (if any) and any other items
detailed on the attached list:
(e) Fire fighting systems and use of adjacent fire hydrants
(f) Use of system for transporting insulating oil
(g) Use of system for transporting Sulphur hexafluoride
(h) Distilled Water
(i) Helicopter landing Facilities
SCHEDULE 8
Charges
A. Provision of Services by Genco to NGC
Service Charge Period of Charge
AC Electrical Supplies such amount as shall be
monthly
agreed between the Parties
from time to time
Water Supplies (if substantial monthly supply,
(Other than Domestic) to be metered (meter installed
by Genco) and charged at a
local authority or NRA rate)
(otherwise nil)
Distilled Water Supplies As agreed from as used time to
time between local representatives
of the Parties as being fair and
reasonable in all the circumstances
Other Services per Nil
Schedule 7
B. Provision of Services by NGC to Genco
All Services per Nil
Schedule 7
C. Radio Towers and Masts
An aggregate annual fee calculated in accordance with the
following formula which will be applied to each Genco Radio Tower
or Mast for that period of any year in which it supports NGC
Radio Equipment and each NGC Radio Tower or Mast for that period
of any year in which it supports Genco Radio Equipment:
Annual Fee = A X B
C
Where A = annual maintenance cost of the Grantor's
Radio Tower
or Masts in question.
B = tower loading of Grantee's Radio Equipment
thereon.
C = combined tower loading of all radio equipment
on the Grantor's Radio Tower or Mast in question.
Tower loading to be measured in Kgf at wind speed of 120 mph.
SCHEDULE 9
Addresses, Fax No's etc. (Cl. 20.)
THE COMMON SEAL of Nuclear Electric plc )
was hereunto affixed in the presence of:- )
THE COMMON SEAL of NATIONAL GRID plc )
was hereunto affixed in the presence of:- )
MWR-DO154a
DATED ________ 1990
THE NATIONAL GRID COMPANY PLC
to
[ _______________ ]
at { _____________
INTERFACE AGREEMENT - CONTENTS
Clause Title
1. Definitions and Interpretation
2. Right to Retain Asset
3. Modifications
4. Safety, Security and Compliance with Statutes etc.
5. Relocations of Grantee's Assets
6. Removals
7. Rights of Access
8. Services and Use of Common Assets
9. Payment
10. Non-Interference
11. Cable Tunnels
12. Dispute Resolution
13. Governing Law and Jurisdiction
14. Confidentiality
15. Dealings with Land
16. Limitation of Liability
17. Intellectual Property
18. Force Majeure
19. Waiver
20. Notices
21. Variations
22. Overriding Provisions
23. Assignment and Sub-Contracting
24. Illegality and Partial Invalidity
25. Term and Termination
26. Registration and Memorandum
27. Entire Agreement
Schedule 1 PES's Assets on NGC's Land
Schedule 2 PES's Land
Schedule 3 NGC's Assets on PES's Land
Schedule 4 NGC's Land
Schedule 5 Part I - Security Details
Part II - Plant MV LV Apparatus Safety Co-Ordination Procedures
Schedule 6 Common Assets
Schedule 7 Shared Services
Schedule 8 Charge for the provision of Site AC Supplies and
Insulating Oil
Schedule 9 Addresses, Fax Nos etc.
INTERFACE AGREEMENT
THIS DEED OF AGREEMENT is made on the date stated on the Cover
between the Parties stated thereon
WHEREAS
(A) Certain assets of NGC (including assets of third parties
used by NGC under arrangements with such third parties) are
situated on property title to which (by way of freehold or
leasehold) is vested in PES;
(B) Certain assets of PES (including assets of third parties
used by PES under arrangements with such third parties) are
situated on property title to which (by way of freehold or
leasehold) is vested in NGC;
(C) Certain assets and facilities of one party whether situated
on that party's property or not, are required for use by
both parties in the carrying on of their respective
undertakings; and
(D) This Agreement is entered into by the parties to give effect
to appropriate arrangements in respect of such assets and
the use of assets and facilities.
NOW IT IS HEREBY AGREED as follows:
DEFINITIONS AND INTERPRETATION
In this Agreement the following words and expressions shall,
unless the subject-matter or context otherwise requires or is
inconsistent therewith, bear the following meanings:
"the Act" - the Electricity Act 1989;
"Asset" - a PES's Asset or an NGC's Asset (as the case may
be);
"Affiliate" - in relation to a Party means any holding company or
subsidiary of that Party or any subsidiary of a holding company
of that Party, 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 section is not in force
at the date of this agreement as if such section were in force at
such date;
"CEGB" - The Central Electricity Generating Board;
"Common Asset" - assets of the kind listed in Schedule 6 to be
agreed pursuant to Clause 21.2 or determined pursuant to Clause
12;
"Competent Authority" - includes 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;
"Connection Agreement" - the Master Connection and Use of System
Agreement to be entered into by, among others, the Successors to
NGC and PES regarding, among other things, the connection of PES
Plant and Apparatus (as defined therein) to the NGC Transmission
System (as defined therein) and the use by PES of such system;
"Cover" - the page of this Deed headed as such which page shall
form part of this Deed;
"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 thereto then
in force;
"the Director" - the Director General of Electricity Supply
appointed for the time being pursuant to Section 1(1) of the Act
by the Secretary of State;
"Emergency Personnel" - in relation to a Party, all employees of
that Party who have appropriate knowledge and experience and are
recognized by that Party as being able to carry out competently
and safely emergency action for the purposes of Clause 10;
"Force Majeure" - In relation to a Party, any event or
circumstance which is beyond the reasonable control of that Party
and which results in or causes the failure of that Party to
perform any of its obligations under this Agreement including any
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 that Party's plant and
apparatus which could not have been prevented by Good Industry
Practice, governmental restraint, any Act or Parliament or
legislation, bye-law, prohibition, measure or directive (not
being any order, regulation or directive 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;
"Good Industry Practice": 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;
"Grantee- in any particular case the owner of the Asset in
question;
"Grantor" - in any particular case the owner of the Land in
question;
"the Grid Code" - the document or documents produced pursuant to
one of the conditions of the NGC Transmission Licence, as from
time to time revised in accordance with the Conditions of the NGC
Transmission Licence;
"HV" - of a nominal voltage exceeding 650 volts;
"Intellectual Property"- patents, trademarks, service marks,
rights in designs, trade names, copyrights and topography rights
(whether or not any of the same is registered and including
applications for registration of any of the same) and rights
under licences and consents in relation to any of the same and
all rights or forms of protection of a similar nature or having
equivalent or similar effect to any of the same which may subsist
anywhere in the world;
"Land" - NGC's Land or PES's Land (as the case may be);
"Licence" - any Licence granted pursuant to Section 6 of the Act'
"Modification" - in relation to an Asset, any alteration to or
replacement of such Asset pursuant to sub-clause 3.1 of this
Agreement and "Modify" and "Modified" shall be construed
accordingly;
"NGC's Assets" - assets (to be agreed pursuant to Clause 21.2 or
determined pursuant to Clause 12) of the kind listed in Schedule
3 (including any plinths or other structures (excluding
buildings) to or upon which the same are affixed and to or upon
which no assets of any other person are affixed and any straps,
bolts or other such things for attachment thereto as any of the
same may be Modified pursuant to this Agreement;
"NGC's Land" - the land described in Schedule 4;
"NGC Transmission Licence" - NGC's licence granted pursuant to
Section 6(1)(b) of the Act;
"Party" - each person for the time being and from time to time
party to this Agreement and any successor(s) in title to, or
permitted assign(s) of, such person;
"Permitted Purpose" - In relation to a Right of Access, the
purpose specified in this Agreement for which such Right of
Access is granted;
"PES's Assets" - assets (to be agreed pursuant to Clause 21.2 or
determined pursuant to Clause 12) of the kind listed in Schedule
1 (including any plinths or other structures (excluding
buildings) to or upon which the same are affixed, and to or upon
which no assets of any other person are affixed and any straps,
bolts or other such things for attachment thereto as any of the
same may be Modified pursuant to this Agreement
"PES's Land" - the land described in Schedule 2;
"PES Licence" - PES's licence granted pursuant to Section 6 of
the Act;
"Providing Party"- in the context of Clause 8, a Party in whom
title to a Common Asset is vested;
"Recipient" - in the context of Clause 8, the Party which is the
recipient of the provision of Services;
"Regulations" the Electricity Supply Regulations 1988 or any
amendment or re-enactment thereof;
"Relocation Proposal" - a proposal by the Grantor to the Grantee
pursuant to sub-clause 5.1 for the relocation of any of the
Grantee's Assets on the Grantor's Land;
"Right of Access" - full right and liberty during the currency of
this Agreement to enter upon and through and remain upon any part
of the Grantor's Land subject to the provisions of this
Agreement;
"Services" - in the context of Clause 8, goods and services of
the kind listed in Schedule 7 to be agreed pursuant to Clause
21.2 or determined pursuant to Clause 12;
"Supplemental Connection Agreement"- a site-specific connection
agreement entered into between the Parties in substantially the
form set out in the appropriate schedule to the Connection
Agreement;
"Supplier" - in the context of Clause 8, the Party which is the
provider of Services to the Recipient; and
"Using Party" in relation to a Common Asset, the Party which is
not the Providing Party.
References in this Agreement to "the Grantor" shall mean NGC in
relation to PES's Assets on NGC's land and PES in relation to
NGC's Assets on PES's Land and references to "the Grantee",
"Grantor's Land" and "Grantee's Assets" shall be construed
accordingly.
In this Agreement:
(i) unless the context otherwise requires all references to
a particular Clause, sub-clause, paragraph or Schedule shall
be a reference to that Clause, sub-clause paragraph or
Schedule in or to this Agreement;
(ii) the table of contents and headings are inserted for
convenience only and shall be ignored in construing this
Agreement;
(iii) references to the words "include" or "including"
are to be construed without limitation to the generality of
the preceding words;
(iv) unless there is something in the subject matter or the
context which is inconsistent therewith, any reference to an
Act of Parliament or any Section thereof or Schedule
thereto, or other provision thereof or any instrument, order
or regulation made thereunder shall be construed at the
particular time, as including a reference to any
modification, extension, replacement 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; and
(v) references to the masculine shall include the feminine
and references in the singular shall include the plural and
vice versa and words denoting natural persons shall include
companies, corporations and any other legal entity and vice
versa.
RIGHT TO RETAIN ASSET
Subject to sub-clause 5.1, NGC hereby grants to PES the right to
use, retain and Modify as provided in this Agreement PES's Assets
on NGC's Land in such places as they are currently situated and
such right shall extend to any Modified PES Asset. NGC
undertakes to maintain any shelter or support enjoyed by any such
Asset at the date of this Agreement or, if later, when relocated
on NGC's Land in accordance with Clause 5 and grants to PES a
Right of Access for the purpose of the use, maintenance,
inspection, testing, removal, operation, Modification or repair
of any of PES's Assets or for the purpose of compliance with any
statute or Directive under the provisions of Clause 4.
Subject to sub-clause 5.1, PES hereby grants to NGC the right to
use, retain and Modify as provided in this Agreement NGC's Assets
on PES's Land in such places as they are currently situated and
such right shall extend to any Modified NGC Asset. PES
undertakes to maintain any shelter or support enjoyed by any such
Asset at the date of this Agreement or, if later, when relocated
on PES's Land in accordance with Clause 5 and grants to NGC a
Right of Access for the purpose of the use, maintenance,
inspection, testing, removal, operation, Modification or repair
of any of NGC's Assets or for the purpose of compliance with any
statute or Directive under the provisions of Clause 4.
MODIFICATIONS
The Grantee may at its own expense replace or alter any of its
Assets provided that:
The replacement Asset or the Asset as so altered:
(i) is placed in the same or approximately the same
position;
(ii) fulfills the same or a similar purpose'
(iii) can, where relevant, be accommodated in and on
existing buildings or structures;
(iv) does not require additional or improved facilities or
services from the Grantor;
(v) does not restrict the actual and intended use of the
Grantor's Land and any equipment thereon or therein to any
materially greater extent than the Asset so replaced or
altered; and
(vi) is (unless otherwise agreed by the Grantor, such
agreement not to be unreasonably withheld or delayed) either
of the same or a similar smaller size or the alteration is
effected substantially within the space occupied by such
Asset to enable the Asset to be used up to its full
capability.
Prior written notification has been given to the Grantor.
Subject to the Grantor's prior approval (such approval not to be
unreasonably withheld or delayed) the Modified Asset may be
installed adjacent to the Asset to be replaced so as to enable
dual running whilst the Modified Asset is commissioned provided
that the Grantee shall remove the Asset which the Modified Asset
replaces as soon as practicable.
If any Modification shall require minor alterations or works to
the existing buildings or structures of the Grantor housing or
supporting the Asset in question such alterations or works may be
carried out (with the prior written approval of the Grantor (such
approval not to be unreasonably withheld or delayed)), but at the
cost of the Grantee. To the extent that any of the conditions of
sub-clause 3.1 are not met in relation to any Modification, the
Grantor may by notice in writing require the Grantee promptly to
remove such replacement or alteration and, if the Grantee fails
to do so, may remove the same itself at the cost and expense of
the Grantee. On such removal, the Grantee may reinstate the
Asset to its state prior to such Modification.
The Grantee shall, if considering moving or Modifying any of the
Grantee's Assets, give due consideration as to whether it shall
be operationally practicable, desirable and reasonably economic
to move such Asset to (or place the Modified Asset on) its own
property.
SAFETY, SECURITY AND COMPLIANCE WITH STATUTES etc.
Each Party undertakes at its own expense to maintain and provide
security in relation to the other Party's Assets in accordance
with the arrangements set out in Part I of Schedule 5.
Each Party shall procure that, as between the Parties, all
reasonable and necessary steps are taken, as and when necessary
or desirable, in co-operation with the other (and, so far as
applicable, with any third party), to ensure compliance with the
provisions (each such provision or part thereof being in this
Clause 4 an "Obligation") of;
(i) all statutes and Directives applicable to any Asset
and/or any part (including the whole) of any Land and/or the
employees of either Party;
(ii) any statute or Directive which may affect any other
property (of whatever nature) of either Party as a result of
the existence, nature, location, or manner of operation of
any Asset.
Each Party shall, so far as it is aware of the same, unless it
has reasonable grounds for believing that the other Party
possesses the information, keep the other Party informed of all
material matters relating to any Obligation.
In the event of any dispute as to responsibility, as between the
Parties, pursuant to sub-clause 4.2, for compliance with an
Obligation, that responsibility shall be allocated, so far as
practicable, on the basis that:
(i) each Party shall refrain from taking or permitting any
act or omission which would prevent compliance with an
Obligation; and
(ii) positive action required in relation to a Party's Land
or Asset as a consequence of the existence, nature, location
or manner of operation of that Land or Asset shall be the
responsibility of that Party, and, to the extent that such
action is required in respect of or affecting any property
of the other Party (or property of a third party located in
or on that other Party's land), such action may be taken
with the prior approval of that other Party (such approval,
subject to (i) above, not to be unreasonably withheld or
delayed) and/or third party as the case may be.
The provisions for safety co-ordination between the Parties
contained in Part II of Schedule 5 shall apply.
RELOCATIONS OF GRANTEE'S ASSETS
At any time and from time to time during the term of this
Agreement the Grantor may with the prior written consent of the
Grantee (such consent not to be unreasonably withheld or delayed)
require the Grantee to relocate any of the Grantee's Assets
either to a different location on the Grantor's Land or to the
Grantee's or a third party's land, such consent to be sought and
given or refused in accordance with the following procedure:
The Grantor shall serve a written notice on the Grantee,
which notice shall specify:
(a) the Grantee's Assets which the Grantor wishes to be
relocated;
(b) the reasons for such wish;
(c) the proposed new location for such Assets; and
(d) the timing of the carrying out of such relocation.
The Grantee shall within four months of receipt of any such
notice (or such longer period as shall be reasonably
necessary) serve a counter notice stating:
(a) whether or not in its reasonable opinion such
Relocation Proposal is acceptable to it;
(b) if the Relocation Proposal is not acceptable to the
Grantee, the grounds for such opinion and the terms of any
alternative proposal ("the Alternative Relocation Proposal")
covering so far as relevant the matters referred to in items
(a) - (d) of sub-clause 5.1.1. which would be acceptable to
the Grantee; and
(c) in respect of the Relocation Proposal (if accepted) or
of any Alternative Relocation Proposal, an estimate
(sufficiently detailed in the circumstances) of the proper
costs likely to be incurred in connection with considering
the Relocation Proposal or the Alternative Relocation
Proposal and effecting the said relocation of the Assets and
the Proper costs of relocating any other equipment that may
be necessary as a result of the relocation of those Assets
and any consequential losses including payments to third
parties incurred as a result of the relocation of those
Assets and the proposed manner and timing of payment of the
same by the Grantor.
If within one month of the date of such counter notice (or
such longer period as shall be reasonably necessary) the
Grantor has not withdrawn the Relocation Proposal and the
Parties have not agreed upon it or the Alternative
Relocation Proposal (if any) or a variation of either of
them the matter shall be dealt with in accordance with
Clause 12.
Upon approval or settlement of any Relocation Proposal,
Alternative Relocation Proposal or variation thereof pursuant to
Clause 5.1, subject to all necessary licenses, consents and
approvals thereto being obtained by the Grantee from the relevant
Competent Authority and to the Grantor making a new location
available (if not on Grantee's Land) and otherwise taking any
necessary steps to facilitate such relocations, the Grantee shall
relocate or procure the relocation of the relevant Assets as
quickly as reasonably practicable (having regard to, amongst
other things, technical and operational requirements and to its
obtaining all necessary licenses and consents).
The Grantor shall pay to the Grantee all costs incurred pursuant
to Clause 5.1 which shall be (as far as practicable) in line with
the estimate agreed or settled pursuant to Clause 5.1 provided
that all reasonable endeavours are used to minimise such costs
and in the event that a Relocation Proposal is withdrawn or
consent thereto is reasonably withheld pursuant to Clause 5.1 or
such licence consent or approval as aforesaid is not granted, the
Grantor shall pay to the Grantee all costs reasonably incurred by
the Grantee in connection with considering the Relocation
Proposal and any counter notice and making application for any
necessary licences, consents or approvals, provided that
documentary evidence shall be provided by the Grantee to show how
such costs have actually been incurred.
Such of the provisions of this Agreement as are appropriate and
relevant (including the provisions of this Clause 5), shall
continue to apply to any relocated Assets.
REMOVALS
Whenever any of the Grantee's Assets shall become unusable for
the purpose for which it was designed or shall not have been used
for a continuous period of at least twelve months, the Grantor
may, by notice in writing to the Grantee, require the Grantee to
remove such Asset, at the Grantee's expense, from the Grantor's
Land as quickly as practicable and in any event before the first
anniversary ("the Removal Date") of the date of service of such
notice unless:
(i) the Grantor shall within the thirty days following
service of such notice have been reasonably satisfied that
the Asset will be or is likely to be used by the Grantee
before the Removal Date (or such later date as the Grantee
shall reasonably propose); and
(ii) the Asset is so used.
In the event that there shall cease to be any Supplemental
Connection Agreement relating to any of PES's Assets on any
particular site within NGC's Land each Party shall remove its
relevant Assets from that site in accordance with the relevant
provisions of the Connection Agreement. The parties shall
negotiate in good faith appropriate arrangements to minimise any
adverse effect on the other Party of such removal. Where the
Grantee is obliged to remove any of its Assets from the Grantor's
Land, whether under this Clause 6 or otherwise, and fails to do
so in accordance with the relevant provisions, the Grantor shall
be entitled to remove the Asset to land of the Grantee and the
Grantee shall provide all reasonable assistance to enable the
Grantor safely so to do and shall pay and reimburse to the
Grantor all costs and expenses reasonably incurred by the Grantor
in so doing.
RIGHTS TO ACCESS
A Right to Access includes the right to bring on to the Grantor's
Land such vehicles, plant, machinery tools, equipment and
maintenance or construction materials as shall be reasonably
necessary for the Permitted Purpose.
A Right of Access given to the Grantee may be exercised by any
person, including third party contractors, reasonably nominated
from time to time by the Grantee. To the extent (if any) that
any particular authorisation or clearances may be required to be
given by the Grantor and the procedures for giving and obtaining
the same are not for the time being stipulated in arrangements
made pursuant to Clause 7.3, the same shall be given within a
reasonable time from the date of the request therefor, save in
the case of emergency in which case it shall be given without
delay.
The Parties 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 with the minimum of disruption, disturbance or
inconvenience to both Parties. Such arrangements and provisions
may, to the extent that the same are reasonable, limit or
restrict the exercise of the Right of Access and/or provide for
one Party to make reasonable directions or regulations from time
to time in relation to a specified matter. Matters to be covered
by such arrangements and/or provision include:
(i) the identification of any relevant Assets;
(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 a Right of
Access;
(iv) any requirements as to prior notification and as to
authorisation of security clearance of individuals
exercising such Rights of Access, and procedures for
obtaining the same;
(v) the means of communication to the other Party and all
employees and/or contractors who may be authorised from time
to time by that Party to exercise a Right of Access of any
relevant directions or regulations made by one Party;
(vi) the identification of and arrangements applicable to
Emergency Personnel;
(vii) safety.
Each Party shall procure that any such arrangements and/or
provisions (or directions or regulations issued pursuant thereto)
made from time to time between the Parties shall be observed and
performed by it and all persons authorised by it to exercise any
Right of Access.
In the exercise of any right hereunder or otherwise whenever
on the Grantor's Land the Grantee shall procure that all
reasonable steps are taken to:
(a) avoid or minimise damage to the Grantor's Land, any
other property thereon or therein;
(b) cause as little disturbance and inconvenience as
possible to the Grantor or other occupier of the Grantor's
Land
And shall promptly make good any damage caused to the
Grantor's Land and/or such other property in the course of
the exercise of such rights and shall indemnify the other
Party against all actions, claims, proceedings, losses,
costs and demands arising out of such exercise.
Subject to Clause 7.4.1, all such rights shall be
exercisable free of any charge or payment of any kind.
Subject to any contrary arrangements for the time being made
under Clause 7.3, a Right of Access for operation or inspection
shall be immediately available without prior notice and local
procedures shall be put in place to provide such immediate
access;
a Right of Access for the purpose of maintenance,
adjustment, testing or repair of HV apparatus granted in
respect of land on which exposed HV conductors are sited
shall only be exercisable on the giving to the Grantor of at
least 7 days prior written notice or such other notice as
may be agreed locally or if less, such notice as may be
reasonable in the circumstances except in the case of loss
of load or other system emergency in which event the Grantor
shall render all possible assistance in procuring that the
Right of Access shall be exercisable as soon as possible.
The parties will make local arrangements to ensure that the
Grantee is not delayed in its ability to deal with an
emergency which has resulted in loss of load or a reduction
in system security.
a Right of Access for the purpose of Modifying any Asset
shall be exercisable only after the giving of two weeks
prior written notice to the Grantor or such notice as may be
agreed locally or if less, such notice as may be reasonable
in the circumstances.
SERVICES AND USE OF COMMON ASSETS.
Subject as hereinafter provided, in relation to each Common
Asset, the Providing Party shall if required by the Using Party
make the Common Asset in question available for continued use by
the Using Party to at least the same extent as it was available
for use by the Using Party immediately prior to the date of this
Agreement.
Subject as hereinafter provided, in relation to each Service, the
Supplier shall, if required by the Recipient, continue to provide
the same to the Recipient. Such provision shall be of such a
quality and quantity and shall be provided at such times as the
Recipient shall reasonably request. The Supplier shall not be
required to exceed the level of quality or quantity of the
Service normally provided prior to the date of this Agreement
unless, in the case of those Services listed in Part One of
Schedule 7 only, specifically agreed between the Parties, such
agreement not to be unreasonably withheld or delayed and where
appropriate to include a provision for payment for such increased
Service.
Where the use of any Common Asset is made available or such
Services are supplied as aforesaid, the Parties shall procure
that appropriate arrangements and provisions are made and/or
revised from time to time, as and when necessary or desirable to
give effect to the rights and obligations pursuant to Clause 8.1
and 8.2 between the local personnel employed by each of them in
that regard such arrangements to include:
the identification of the Common Assets and/or Services in
question including (where relevant) the extent of their
availability;
the hours during which such use or provisions shall be
allowed or made;
any requirements as to notification of use or call for
supply or temporary suspension thereof;
any requirements as to authorisation or security clearance
of individuals and the procedure for obtaining the same;
any safety requirements; and
administration of payment arrangements.
The provision of use of the Common Assets listed in Schedule
6 Part One and the supply of the Services listed in Schedule
7, Part One shall not be terminated unless the Providing
Party ceases to require the Common Asset or Service for its
own use in which case the supply of the Service or use of
the Common Asset may be terminated by not less than one
year's notice in writing.
The provision of use of the Common Assets listed in Schedule
6, Part Two and the supply of those Services listed in
Schedule 7, Part Two shall continue until terminated by not
less than one year's notice in writing by either Party.
In the event of a termination under Clause 8.4.1 or 8.4.2 if
the Using Party of the Common Asset in question or the
Recipient of the Service in question shall not be able to
obtain an adequate alternative therefor the Providing Party
or Supplier as the case may be shall co-operate with the
Recipient or Using Party so as to minimise the effect of
such termination on the operations of the latter including
where reasonably practicable the provision of the use of
land for the location of an alternative to the Common Asset
in question or an alternative source of supply for the
Service in question.
Each Party shall maintain any Common Asset owned by that Party in
accordance with Good Industry Practice.
The Recipient shall maintain all its relevant assets in such
repair and condition that the level of Services provided does not
substantially increase as a result of the lack of repair or
condition of the relevant assets.
PAYMENT
The Parties agree that the provision of the use of Common Assets,
and the provision of Services other than Site AC supplies and
Insulating oil shall be free of charge.
The Recipient agrees to pay the Supplier for the provision of
Site AC supplies and Insulating oil a fee, calculated and payable
in accordance with the provisions of Schedule 8.
Any sums payable under this Agreement shall be payable together
with an additional amount equivalent to any Value Added Tax
chargeable on the same. Where any costs, expenses or other sums
are repaid or reimbursed to a Party under this Agreement the
amount of the repayment or reimbursement shall include any Value
Added Tax paid by that Party in relation to the goods or services
supplied to the extent that no credit is available to that Party
in respect thereof under Sections 14 and 15 of the Value Added
Tax Act 1983.
If either Party fails to pay on the due date any amount properly
due under this Agreement such Party shall pay to the other
interest on such overdue amount from and including the date of
such failure to (but excluding) the date of actual payment (as
well after as before judgment) at the rate of 4% over Barclays
Bank PLC base rate for the time being and from time to time.
Interest shall accrue from day to day.
NON-INTERFERENCE
Subject to the terms of the Agreement, the Grantor agrees that
neither it nor its agents, employees and invitees will interfere
in any way with any of the Grantee's Assets which are located at
any time on the Grantor's land without the consent of the
Grantee. For the purposes of this clause "interfere" shall
include:
disconnecting or altering the connection of any Asset to any
system of cables, foundations, pipes, drains or other media
to which it may be connected from time to time or to prevent
supply of any substance or thing through such connected
system;
affixing or removing any item or substance of any nature
whatsoever to or from any Asset;
damaging any Asset or doing or omitting to do any act, or
allowing any state of affairs to subsist, as a result of
which any Asset would be likely to sustain any material
damage;
allowing any other person to interfere with any Asset;
altering any meters or settings on any Asset.
the obstruction of access to any Asset.
impairing the effectiveness of any gate, fence, wall, alarm
system or the means of keeping out intruders.
The obligations contained in this clause 10 shall be suspended to
the extent that emergency action is taken by Emergency Personnel
in good faith to protect the health and safety of persons or to
prevent damage to property. All reasonable care shall be taken
in the course of such emergency action. When the emergency has
ended, any damaged property will be reinstated by the Party whose
Asset gave rise to the emergency, save for damage occurring by
reason of lack of reasonable care in the course of the emergency
action which shall be the responsibility of the Party taking the
emergency action.
CABLE TUNNELS
Any cable tunnels situated under any site within the Land owned
by either Party shall be kept fully maintained and repaired on
the following basis:
in the case of cable tunnels containing the HV cables of one
Party only for the time being maintenance of the whole
tunnel shall be the responsibility of that Party;
in the case of cable tunnels containing HV cables of both
Parties maintenance of the whole tunnel shall be the
responsibility of the Party with the majority in number of
such cables for the time being and the cost of such
maintenance shall be apportioned between the Parties
according to level of use;
in the case of cable tunnels containing solely cables other
than HV cables maintenance shall be the responsibility of
the Party with the majority in number of such cables for the
time being and the cost of maintenance shall be apportioned
between the Parties according to level of use;
where any part of any cable tunnel lies on or under land of
a Party not responsible in accordance with the above
provisions for the maintenance thereof that Party grants to
the responsible Party a Right of Access for all purposes
necessary to discharge its obligations under this Clause 11
and shall give all reasonable co-operation and assistance to
the responsible Party as may be requisite for the proper
discharge by the responsible Party of its obligations under
this clause.
DISPUTE RESOLUTION
Save where expressly stated in this Agreement to the contrary and
subject to any contrary provision of the Act, any Licence, or the
Regulations, or the rights, powers, duties and obligations of the
Director or the Secretary of State for Energy 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 hereto shall be and is
hereby referred to arbitration pursuant to the arbitration rules
of the Electricity Supply Industry Arbitration Association in
force from time to time.
Whatever the nationality, residence or domicile of the parties
hereto and wherever the dispute or difference of 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 (including any modification, extension,
replacement or re-enactment thereof for the time being in force)
shall apply to any such arbitration wherever the same or any part
of it shall be conducted.
Subject always to sub-clause 12.5 below, 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 of the
Parties (the "defendant contracting party"), and the defendant
contracting party wishes to make a third party claim (ad defined
in sub-clause 12.4 below) against the other Party ("contracting
party") which would but for this sub-clause 12.4 below) against
the other Party ("contracting party") which would but for this
sub-clause 12.3 have been a dispute or difference referred to
arbitration by virtue of sub-clause 12.1 above then,
notwithstanding the provisions of sub-clause 12.1 above 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 the 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.
For the purpose of this Clause 12 "third party claim" shall mean:
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 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 said tariff customer; or
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 said 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).
Sub-clause 12.3 above shall apply only if at the time the legal
proceedings are commenced no arbitration has been commenced
between the defendant contracting party and the 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.
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed and construed in all respects in
accordance with English law.
Subject and without prejudice to Clause 12 and to Clause 13.4 the
Parties irrevocably agree that the courts of England are to have
exclusive jurisdiction to settle any dispute which may arise out
of or in connection with this Agreement and that accordingly any
suit, action or proceeding (together in this Clause 13 referred
to as "Proceedings") arising out of or in connection with this
Agreement may be brought in such courts.
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 13 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.
For the avoidance of doubt nothing contained in the foregoing
provisions of this Clause 13 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.
CONFIDENTIALITY
For the purposes of this Clause 14 except where the context
otherwise requires:
"Authorized Recipient", in relation to any Protected Information,
means 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 this Clause 14 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 PES under the provisions of this Agreement.
"Corporate Functions Person" means any person who:
Is a director of NGC; or
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
is engaged as an agent of or adviser to or performs work in
relation to or services for the Main Business;
"Customer" has the same meaning as in the Connection
Agreement.
"Generation Business" has the same meaning as in the NGC
Transmission Licence;
"Main Business" means any business of NGC or any of its
subsidiaries 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;
"Permitted Activities" means activities carried on for the
purposes of the Main Business;
"Protected Information" means an 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;
"Supplier" has the same meaning as in the Connection
Agreement.
For the avoidance of doubt, data and other information which a
Party is permitted or obliged to divulge or publish to the 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.
Confidentiality for NGC and its Subsidiaries
NGC and its subsidiaries in each of their capacities in this
Agreement shall secure that Protected Information is not:
divulged by Business Personnel to any person unless that
person is an Authorised Recipient;
used by Business Personnel for the purposes of obtaining for
NGC or any of its subsidiaries or for any other person:
any electricity licence; or
any right to purchase or otherwise require, or to
distribute, electricity (including by means of an
electricity purchase contract as defined in the NGC
Transmission Licence); or
any contract or arrangement for the supply of
electricity to customers or suppliers (as defined in
the Connection Agreement); or
any contract for the use of any electrical lines or
electrical plant belonging to or under the control of a
supplier (as defined as aforesaid); or
control of any body corporate which, whether directly
or indirectly, has the benefit of any such licence
contract or arrangement; and
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.
Nothing in Clause 14 shall apply:
to any Protected Information which, before it is furnished
to Business Personnel is in the public domain;
to any Protected Information which, after it is furnished to
Business Personnel:
is acquired by NGC or any subsidiary of NGC in
circumstances in which this Clause 14 does not apply;
or
is acquired by NGC or any subsidiary of NGC in
circumstances in which this Clause 14 does apply and
thereafter ceases to be subject to the restrictions
imposed by this Clause 14; or 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 14; 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;
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:
In compliance with the duties of NGC or any subsidiary
of NGC under the Act or any other requirement of a
Competent Authority; or 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 to
comply; or in compliance with any other requirement of
law; or in response to a requirement of any stock
exchange or regulatory authority or the Panel on Take-
overs and Mergers; or pursuant to the arbitration rules
for the Electricity Supply Industry Arbitration
Association or pursuant to any judicial or other
arbitral process or tribunal.
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 the Pooling and Settlement
Agreement, the Grid Code, the Distribution Code and the Fuel
Security Code as those terms are defined in the Connection
Agreement) with the Party to whose affairs such Protected
Information relates.
NGC and its subsidiaries may use all and any information or data
supplied to or acquired by it, from or in relation to the other
Party in performing Permitted Activities including for the
following purposes:
the operation and planning of the NGC Transmission System;
the calculation of charges and preparation of offers of
terms for connection to or use of the NGC Transmission
System;
the operation and planning of the Ancillary Services
Business (as defined in the NGC Transmission Licence) and
the calculation of charges therefor;
the operation of the Settlements Business (as defined in the
NGC Transmission Licence);
the provision of information under the British Grid Systems
Agreement and the EdF Documents (as defined in the
Connection Agreement);
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. NGC undertakes 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:
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:
authorised by licence or exemption to generate, transmit or
supply electricity; or
an electricity broker or is known to be engaged in the
writing of electricity purchase contracts (as defined in the
NGC Transmission Licence); or known to be retained as a
consultant to any such person who is referred to in (a) or
(b) above; or
who is to be transferred to the Generation Business save
where NGC or such subsidiary could not, in all circumstances
reasonably be expected to refrain from divulging to such
Business Person Protected Information which is required for
the proper performance of his duties.
Without prejudice to the other provisions of this Clause 14
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.
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.
Confidentiality other than for NGC and its Subsidiaries
PES hereby undertakes with NGC and its subsidiaries that it shall
preserve the confidentiality and secrecy of, and not directly or
indirectly reveal, report, publish, disclose or transfer or use
for its own purposes Confidential Information except:
in the circumstances set out in sub-clause 14.8.2
to the extent otherwise expressly permitted by this
Agreement or with the consent in writing of NGC.
Exceptions: the circumstances referred to in sub-clause 14.8.1.1
are:
where the Confidential Information, before it is furnished
to PES, is in the public domain; or
where the Confidential Information, after it is furnished to
PES:
is acquired by PES in circumstances in which this Clause 14
does not apply; or
is acquired by PES in circumstances in which this Clause 14
does apply and thereafter ceases to be subject to the
restrictions imposed by this Clause 14; or
enters the public domain and in any such case otherwise than
as a result of:
(i) a breach by PES of its obligations in this Clause 14;
or
(ii) a breach by the person who disclosed that Confidential
Information of that persons confidentiality obligation.
If PES is required or permitted to make disclosure of the
Confidential Information to any person:
in compliance with the duties of PES under the Act or any
other requirement of a Competent Authority; or
in compliance with the conditions of any Licence or any
document referred to in any Licence with which PES is
required to comply; or in compliance with any other
requirement of law; or
in response to a requirement of any stock exchange or
regulatory authority or the Panel on Take-overs and Mergers;
or
pursuant to the arbitration rules for the Electricity Supply
Industry Arbitration Association or pursuant to any judicial
or other arbitral process or tribunal; or
when Confidential Information is furnished by PES to an
employee, director, agent, consultant or professional
advisor of PES, in each case on the basis set out in Clause
14.8.3.
With effect from the date of this Agreement PES shall adopt
procedures within its organization for ensuring the
confidentiality of all Confidential Information which it is
obliged to preserve as confidential under Clause 14.8.1. These
procedures are:
the Confidential Information will be disseminated within PES
only on a "need to know" basis;
employees, directors, agents consultants and professional
advisers of PES in receipt of Confidential Information will
be made fully aware of PES's obligations of confidence in
relation thereto; and
any copies of the Confidential Information, whether in hard
copy or computerised form, will clearly identify the
Confidential Information as confidential.
DEALINGS WITH LAND
The Parties hereby agree and declare that the Grantee's Assets
are intended to benefit the undertaking, land and business of the
Grantee and that so far as is possible such Assets are hereby and
shall hereafter remain severed from the Grantor's Land and shall
be and hereafter remain chattels of the Grantee.
Each Party agrees that it shall not by any act or default render
the other party's Assets liable to any distress, execution or
other legal process, and in the event that such Assets shall
become so liable, shall forthwith give notice of any such
proceedings to the other Party and shall forthwith notify any
third party instituting any such process of the ownership of such
Assets.
If a Party desires to mortgage or charge any of its land or its
interest therein on which any of the other Party's Assets are
located or to mortgage or charge any of its own Assets or to
enter into any arrangement which, if made, might affect the
rights of the other Party expressly granted herein, then that
Party shall ensure that the other Party's Assets are not and will
not be subject to the rights granted therein and are not and will
not be affected by the mortgage, legal charge or other agreement
or arrangement, and shall give written notification thereof to
the other Party.
In the event that the Grantor shall wish to grant rights over or
dispose of any interest in or change the use of any Land the
Grantor shall notify the Grantee of such wish in accordance with
the procedures set out in sub-clause 5.1 and fully consult the
Grantee in respect thereof and shall not grant such rights or
make such disposal or change of use save on terms satisfactory to
the Grantee requiring any recipient or assignee of any such Land
to be bound, so far as relevant by the terms of this Agreement
and otherwise ensuing that the Grantee's rights pursuant to this
Agreement are not in any way prejudiced thereby.
16. LIMITATION OF LIABILITY
16.1 Save where any provision of this Agreement provides for an
indemnity and save as provided in this sub-clause 16.1 and sub-
clause 16.2 neither party (the "Party Liable") nor its officers,
employees of agents shall be liable to the other party for loss
arising from any breach of this Agreement other than for loss
directly resulting from such breach and which at the date hereof
was reasonably foreseeable as not unlikely to occur in the
ordinary course of events from such breach and in respect of:
16.1.1 physical damage to the property of the other
Party, its officers, employees or agents; and/or
16.1.2 the liability of the other Party to any other
person for loss arising from physical damage to the
property of such other person.
16.2 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 the other Party, its
officers, employees or agents, from and against all such and
any loss or liability which 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,
its officers, employees or agents.
16.3 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 the other Party for:
16.3.1 any loss of profit, loss of revenue, loss of use,
loss of contract or loss of goodwill; or
16.3.2 any indirect or consequential loss; or
16.3.3 loss resulting from the liability of such other
Party to any other person howsoever and whensoever
arising save as provided in sub-clauses 16.1.2 and
16.2.
16.4 The rights and remedies provided by this Agreement to the
parties are exclusive and not cumulative and exclude and are
in place of all substantive (but not procedural) rights or
remedies express or implied and provided by common law or
statute in respect of the subject matter of this Agreement,
including without limitation any rights either party may
possess in tort which shall include actions brought in
negligence and/or nuisance. Accordingly, each of the
parties hereby waives in the fullest extent possible all
such rights and remedies provided by common law or statute,
and releases the Party Liable 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.
16.5 Save as otherwise expressly provided in this Agreement, this
Clause 16 insofar as it excludes or limits liability shall
override any other provision in this Agreement provided that
nothing in this Clause 16 shall exclude or restrict or
otherwise prejudice or affect any of:
16.5.1 the rights, powers, duties and obligations of
either Party which are conferred or created by the Act,
the NGC Transmission Licence, the PES Licence or the
Electricity Supply Regulations 1988 or any amendment or
re-enactment thereof; or
16.5.2 the rights, powers duties and obligations of the
Director or the Secretary of State under the Act, any
such Licence as aforesaid or otherwise howsoever.
16.6 Each of the sub-clauses of this Clause 16 shall:
16.6.1 be construed as a separate and severable contract
term, and if one or more of such sub-clauses is held to
be invalid, unlawful or otherwise unenforceable the
other or others of such sub-clauses shall remain in
full force and effect and shall continue to bind the
Parties; and
16.6.2 survive termination of this Agreement.
16.7 Each Party acknowledges and agrees that the other Party
holds the benefit of sub-clauses 16.1 and 16.2 and 16.3
above for itself and as trustee and agent for its officers,
employees and agents.
16.8 Each Party acknowledges and agrees that the provisions of
this Clause 16 have been the subject of discussion and
negotiation and are fair and reasonable having regard to the
circumstances as at the date hereof.
17. INTELLECTUAL PROPERTY
All Intellectual Property relating to the subject matter of this
Agreement conceived, originated, devised, developed or created by
a Party its officers employees, agents or consultants during the
currency of this Agreement shall vest in such Party as the sole
beneficial owner thereof save where the Parties agree in writing
otherwise.
18. FORCE MAJEURE
If either Party (the "Non-Performing Party") shall be unable to
carry out any of its obligations under this Agreement due to a
circumstance of Force Majeure this Agreement shall remain in
effect but save as otherwise provided herein the Non-Performing
Party's obligations hereunder shall be suspended without
liability for a period equal to the circumstance of Force Majeure
provided that:
(i) the Non-Performing Party gives the other Party prompt
notice describing the circumstances of Force Majeure,
including the nature of the occurrence, its expected
duration and the particular obligations affected by it,
and continues to furnish regular reports with respect
thereto during the period of Force Majeure;
(ii) the suspension of performance is of no greater scope
and of no longer duration than is required by the Force
Majeure;
(iii) No liabilities of either Party that arose before
the Force Majeure causing the suspension of performance
are excused as a result of the Force Majeure;
(iv) the Non-Performing Party uses all reasonable efforts to
remedy its inability to perform; and
(v) as soon as practicable after the event which
constitutes Force Majeure the Parties shall discuss how
best to continue their operations so far as possible in
accordance with this Agreement.
19. WAIVER
No delay or omission of NGC or PES in exercising any right,
power, privilege or remedy under this Agreement shall operate to
impair such right, power, privilege or remedy or be construed as
a waiver thereof. Any single or partial exercise of any such
right, power, privilege or remedy shall not preclude any other or
future exercise thereof or the exercise of any other right,
power, privilege or remedy.
20. NOTICES
20.1 Any notice or other communication to be given by one Party
to the other under, or in connection with the matters
contemplated by, this Agreement shall be addressed to the
recipient and sent to the address, telex number or facsimile
number of such other Party given in Schedule 9 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 20 to the Party giving the relevant notice or other
communication to it.
20.2 Any notice or other communication to be given by one Party
to the other Party under, or in connection with the matters
contemplated by, this Agreement shall be 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:
20.2.1 in the case of delivery by hand, when delivered;
or
20.2.2 in the case of first class prepaid post, on the
second day following the day of posting or (if sent
airmail from overseas) on the fifth day following the
day of posting; or
20.2.3 in the case of telex, on the transmission of the
automatic answerback 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
20.2.4 in the case of facsimile, on acknowledgment by the
addressee's facsimile receiving equipment (where such
acknowledgment occurs before 1700 hours on the day of
acknowledgment) and in any other case on the day
following the day of acknowledgment.
21. VARIATIONS
21.1 The provisions of Schedules 1, 3, 6, 7 and 8 may be varied
from time to time by written memorandum referring to this
Clause 21 and signed by an authorised officer of each of
the Parties. Subject thereto no variations to this
Agreement shall be effective unless made by way of
supplemental deed.
21.2 The parties shall within twelve months of the date hereof
agree on the following in respect of each of the sites
listed in Schedules 2 and 4:
21.2.1 NGC's Assets which are actually on PES's Land and
PES's Assets which are actually on NGC's Land as at the date
hereof;
21.2.2 The Services and Common Assets in existence as at
the date hereof; and
21.2.3 In respect of the Services agreed upon pursuant to
the preceeding sub-clause of the kind specified in Part Two
of Schedule 7 details of the level of quality or quantity of
such Service as at the date hereof.
21.3 If the parties fail to agree any of the matters referred to
in sub-clause 21.2 within the period stated therein or (if
sooner) when a disagreement relating thereto arises either
may refer the same for determination pursuant to Clause 12.
22. OVERRIDING PROVISIONS
22.1 In the event of any conflict between NGC's or PES's
obligations hereunder and their obligations under the NGC
Transmission Licence and PES Licence, the Act, any direction
of the Secretary of State for Energy, the Director or ruling
of the Monopolies and Mergers Commission, the Grid Code,
under any Connection Agreement or under any Supplemental
Connection Agreement between the Parties, the provisions of
the NGC Transmission Licence and PES Licence, the Act, the
Grid Code, the Connection Agreement or Supplemental
Connection Agreement, the direction of the Secretary of
State for Energy, the Director, or ruling of the Monopolies
and Mergers Commission shall prevail and accordingly NGC and
PES respectively shall not be responsible for any failure to
perform their respective obligations hereunder to the extent
that any such failure is directly attributable to proper
compliance with such provisions, rulings or directions.
22.2 In the event of any inconsistency between the terms of this
Agreement and the terms of any agreement between either of
the Parties and Nuclear Electric plc relating to access to
or use of property or equipment affected by a nuclear site
licence the terms of the latter shall prevail. Any
inconsistency between the terms of any such agreement as
aforesaid between NGC and Nuclear Electric plc on the one
hand and between PES and Nuclear Electric plc on the other
hand shall be resolved pursuant to paragraph (ii) of Clause
27.
23. ASSIGNMENT AND SUB-CONTRACTING
23.1 The rights and obligations of a Party may not be assigned
(otherwise than to an Affiliate or by way of a charge or an
assignment by way of security) without the consent of the
other Party, such consent not to be unreasonably withheld.
In respect of any such assignment the assigning Party shall
ensure that the assignee agrees in terms and form acceptable
to the other Party to be bound by and comply with the terms
of this Agreement.
23.2 Each Party shall have the right to sub-contract or delegate
the performance of any of its obligations or duties arising
under this Agreement without the consent of the other. The
sub-contracting by either Party of the performance of any
obligations or duties under this Agreement shall not relieve
such Party from the liability for performance of such
obligation or duty.
24. ILLEGALITY AND PARTIAL INVALIDITY
24.1 If at any time any provision of this Agreement should become
or be declared unlawful, invalid, illegal or unenforceable
in any respect under the law of any jurisdiction, neither
the validity, legality or enforceability of the remaining
provisions nor the validity, legality or enforceability of
such provision under the law of any other jurisdiction shall
be affected.
24.2 If any part of a provision of this Agreement is or becomes
or is declared invalid, unlawful, illegal or unenforceable
but the rest of such provision would remain valid, lawful or
enforceable if part of the wording were deleted the
provision shall apply with such modifications as may be
necessary to make it valid, lawful, enforceable and
effective but without affecting the meaning of legality,
validity or enforceability of any other provision of this
Agreement.
25. TERM AND TERMINATION
This Agreement shall continue on a site by site basis until none
of NGC's Assets are on PES's land, and none of PES's Assets are
on NGC's land and no Common Assets or Services are shared or
provided always that insofar as the provisions of this Agreement
relate to a particular site of NGC and/or PES the provisions of
this Agreement shall in relation to each such site determine on a
site by site basis.
26. REGISTRATION AND MEMORANDUM
26.1 Where any or all of PES's Land and/or NGC's Land is
registered or PES's or NGC's interest therein is subject to
compulsory registration at H.M. Land Registry the Parties
agree to apply to the Chief Land Registrar for the
registration as appropriate of the rights and obligations
granted by or contained in this Agreement and further agree
to place on deposit at H.M. Land Registry all relevant Land
or Charge Certificates to enable such registration to be
effected.
26.2 Where any of PES's Land and/or NGC's Land is not so
registered or subject to compulsory registration, NGC and
PES are respectively free to procure within six months of
the date hereof that memoranda of this Agreement are
endorsed on or otherwise securely attached to the most
recent conveyance (in the case of a freehold interest) or
the lease under or pursuant to which they hold such land.
27. ENTIRE AGREEMENT
This Agreement contains or expressly refers to the entire
agreement between the Parties with respect to the subject-matter
hereof, and expressly excludes any warranty, condition or other
undertaking implied at law or by custom, and supersedes all
previous agreements and understanding between the Parties with
respect thereto and
(i) each of the Parties acknowledges and confirms that it
does not enter into this Agreement in reliance on any
representation, warranty or other undertaking not fully reflected
in the terms of this Agreement; but
(ii) the Parties acknowledge that each of them may have
entered or may enter into agreements with any generating company
(as defined in the Act) containing similar rights and/or
liabilities to those contained in this Agreement affecting NGC's
Land and/or PES's Land and any assets thereon. The Parties
shall, when entering into such agreement with any of the said
generating companies, use reasonable endeavours to avoid
conflicts between the provisions thereof and the provisions of
this Agreement but in the event of any conflict the parties shall
procure that appropriate arrangements are made to settle the same
to give full effect (so far as practicable) to the rights and
liabilities under this Agreement and under such other agreements
as aforesaid. Where relevant the provisions of Clause 7.3 shall
apply. In the event of any dispute as to such conflict and/or
arrangements the dispute shall be dealt with in accordance with
Clause 12.
IN WITNESS whereof this Agreement has been entered into under
seal the day and year first above written.
SCHEDULE 1
PES's Assets on NGC's Land
Assets of the following kind:
(a) HV apparatus including/comprising busbar isolators,
circuit breaker, earth switch, current transformer, voltage
transformer;
(b) Termination apparatus including/comprising overhead
connection tension insulators and downdroppers/HV cable and
sealing ends;
(c) Protection, control and alarm apparatus (including
associated panels and multicore cabling);
(d) Intertrip apparatus;
(e) Standby diesels"
(f) Connections to compressed air and oil installations;
(g) Sections of water washing installations;
(h) Spares excluding Strategic Spares;
(i) Metering Equipment;
(j) Aerials;
(k) MV supply cables and apparatus;
(l) Batteries and associated apparatus;
(m) Telecommunications apparatus;
(n) Cathodic protection.
To the extent not included as part of such assets the same shall
be deemed to include all control and auxiliary cables and the
associated terminations, pipes and ducts and other ancillary
equipment exclusively serving the same.
SCHEDULE 2
PES's Land
[List of site addresses]
SCHEDULE 3
NGC's Assets on PES's Land
Assets of the following kind:
(a) HV apparatus including/comprising busbar isolators,
circuit breaker, earth switch, current transformer, voltage
transformer;
(b) Termination apparatus including/comprising overhead
connection tension insulators and downdroppers/HV cable and
sealing ends;
(c) Protection, control and alarm apparatus (including
associated panels and multicore cabling);
(d) Intertrip apparatus;
(e) Standby diesels;
(f) Connections to compressed air and oil installations;
(g) Sections of water washing installations;
(h) Spares excluding Strategic Spares;
(i) Metering Equipment;
(j) Aerials;
(k) MV supply cables and apparatus;
(l) Batteries and associated apparatus;
(m) Telecommunications apparatus;
(n) Cathodic protection.
To the extent not included as part of such assets the same shall
be deemed to include all control and auxiliary cables and the
associated terminations, pipes and ducts and other ancillary
equipment exclusively serving the same.
SCHEDULE 4
NGC'S Land
(List of Site addresses)
SCHEDULE 5
Part I
Security Details (Cl.4.1)
1. NGC and PES Land
Security of Site Compounds will be maintained in accordance with
the Electricity Supply Regulations 1988, which in the case of
compounds containing exposed HV apparatus will be by a fence not
less than 2.4 metres high or alternative enclosure. All
buildings not enclosed within a site compound fence will be
securely locked to restrict unauthorised access. A local
management instruction will apply to the issue of security keys.
PART II
Plant MV LV Apparatus Safety Co-Ordination Procedures (Cl.4.5)
(1) In this Clause:
"Apparatus" means all equipment in which electrical conductors
are used, supported or of which they may form a part;
"Connection Site" shall have the meaning given to it in the Grid
Code;
"Existing Rules" means the rules, procedures or current
arrangements for and relating to safety co-ordination across
boundaries (to permit work to or testing on the system of one of
the Parties which, for this to be done safely, requires isolation
and/or other precautions on Plant and/or MV and/or LV Apparatus
whether at, adjacent to or remote from the location of the work
or testing) which are in force followed or complied with at PES's
Land and NGC's Land at the date of this Agreement;
"Low Voltage" or "LV" means a voltage not exceeding 250 volts;
"Medium Voltage" or "MV" means a voltage exceeding 250 volts but
not exceeding 650 volts;
"Plant" means fixed and moveable items used in the generation
and/or supply and/or transmission and/or distribution of
electricity, other than Apparatus.
(2) The Parties will continue to comply with the Existing Rules
pending any agreed modifications thereto.
(3) The Parties will arrange for the Existing Rules (if not
already in writing) to be written down and, in any event, to
be agreed between the person or persons responsible on
behalf of the relevant Parties for the co-ordination of
safety at each Connection Site(s)
SCHEDULE 6
Common Assets (Cl.8.1)
PART ONE
(a) Batteries
(b) Telemetering equipment
(c) Communicating equipment (other than telemetering equipment)
(d) Connections to insulating oil and SF6 gas installations
(e) Miscellaneous MV/LV cabling
PART TWO
Site lightin
SCHEDULE 7
Shared Services (Cl.8.2)
PART ONE
(a) AC and DC electrical supplies
(b) Compressed air for switchgear operation
(c) Water supplies
(d) Insulating Oil
(e) Fire fighting systems and use of adjacent fire hydrants
(f) Use of system for transporting insulating oil
(g) Use of system for transporting Sulphur hexafluoride
PART TWO
(h) Toilet Facilities
(i) Mess Facilities
(j) Public Telephones
(k) Cranes and Lifting Equipment
(l) Security Alarms Systems
SCHEDULE 8
Charges for the provision of Site AC Supplies and Insulating Oil
The Recipient shall pay a due proportion of the cost of Site AC
supplies to the Providing Party based on the use of such
supplies by the Recipient as established by local agreement
where the Providing Party purchases AC Supplies on a
commercial basis.
The Recipient shall pay for Insulating oil such charges as may be
agreed from time to time by reference to the cost of supply
of the same in respect of any of the sites the subject of
this Agreement were the same is provided. In the event of
any dispute as to such charges the provisions of Clause 12
shall apply.
Save as otherwise agreed in any particular case invoices shall be
rendered in monthly arrears and payment shall be made within
14 days of the date of invoice.
SCHEDULE 9
Addresses, Fax Nos etc (Cl.20)
THE SEAL of THE CENTRAL ELECTRICITY )
GENERATING BOARD hereunto affixed )
is authenticated by:
THE COMMON SEAL of MIDLAND )
ELECTRICITY BOARD is hereunto affixed and )
is authenticated by: )
DATED _______________ 1990
THE NATIONAL GRID COMPANY PLC
to
[ _____________ ]
LICENCE TO RETAIN ASSETS
at [ __________
INDEX
Clause Description
1. Definitions and Interpretation
2. Right to Retain Assets Lines and Cables
3. Modification
4. Safety Security and Compliance with Statutes
5. Relocation of PES's Assets
6. Relocation of Lines and Cables
7. Removals
8. Rights of Access
9. Services and Use of Common Assets
10. Payment
11. Non-Interference
12. Cable Tunnels and Lines and Cable
13. Dispute Resolution
14. Governing Law and Jurisdiction
15. Confidentiality
16. Dealings with Land
17. Limitation of Liability
18. Intellectual Property
19. Force majeure
20. Waiver
21. Notices
22. Variations
23. Overriding Provisions
24. Assignments and Sub-Contracting
25. Illegality and Partial Invalidity
26. Term and Termination
27. Agreement as to Assets Services and Common Assets
28. Registration and Memorandum
29. Entire Agreement
Schedule 1 The PES's Assets on NGC's Land
Schedule 2 NGC's Land
Schedule 3 Security Details
Schedule 4 Common Assets
Schedule 5 Shared Services
Schedule 6 Charges for the of Services
Schedule 7 Addresses Fax Nos. etc.
PARTICULARS
DATE:
NGC: THE NATIONAL GRID COMPANY PLC of National Grid House, Sumner
Street,
London SE1 9JU
PES: [ _______ } of
LICENCE TO RETAIN ASSETS
THIS LICENCE is made on the date stated and BETWEEN the parties
stated in the Particulars
WHEREAS
(A) Certain assets of the PES (including assets of third parties
used by the PES under
arrangements with such third parties) are situated on
property title to which (by
way of freehold or leasehold) is vested in NGC;
(B) Certain assets and facilities of NGC are required for use by
both parties in the
carrying on of their respective undertakings; and
(C) This Agreement is entered into by the parties to give effect
to appropriate
arrangements in respect of such assets and the use of assets
and facilities.
NOW IT IS HEREBY AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions shall,
unless the subject-matter or
context otherwise requires or is inconsistent therewith,
bear the following meanings:-
"the Act" the Electricity Act 1989;
"Ancillary Lines and Cables" any wire cable tube conductor
or similar thing
(including its casing or coating) used
or designed
to be used for the operation monitoring
or control
of the PES's Assets which belong to the
PES and
pass through or under NGC's Land
"PES" the Public Electricity Supplier
named in the
Particulars and its successors in title
and assigns
"PES's Assets" (a) assets (to be agreed or
determined pursuant to
Clause 27) of the kind listed in
Schedule I
(including any plinths or other
structures
(excluding buildings) to or upon which
the same
are affixed and to or upon which no
assets of any
other person are affixed and any straps,
bolts or
other such things for attachment
thereto) as any
of the same may be Modified pursuant to
this
Agreement and
(b) the Ancillary Lines and Cables
"Cable" any wire cable or other similar
thing (including
other similar thing (including its
casing or
coating) for transmitting and/or
distributing
electricity together with cooling
systems and
junction boxes fibre optic cables and
other ancillary
equipment which belong to the PES and
pass
through NGC's Land
"NGC" the Party so named in the
Particulars and its
successors in title to NGC's Land;
"NGC's Land" the land belonging to NGC described
in
Schedule 2
"Common Asset" assets of the kind listed in
Schedule 4 to be
agreed or determined pursuant to Clause
27
"Competent Authority" includes 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 Economic Community;
"Connection Agreement" the Master Connection and Use
of System
Agreement entered into by, among others,
NGC
and the PES regarding, among other
things, the
connection of PES Plant and Apparatus
(as
defined therein) to the NGC Transmission
System (as defined herein) and the use
by the
PES of such system;
"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 thereto then in force;
"the Director" the Director General of Electricity
Supply
appointed for the time being pursuant to
Section 1(1) of the Act by the Secretary
of
State;
"Emergency Personnel" in relation to a Party, all
employees of that
Party who have appropriate knowledge and
experience and are recognised by that
Party
as being able to carry out competently
and
safely emergency action for the purposes
of
Clause 11;
"Force Majeure" in relation to a Party, any
event or circumstance
which is beyond the reasonable control
of that
Party and which results in or causes the
failure
of that Party to perform any of its
obligations
under this Agreement including any 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 that
Party's plant
and apparatus which could not have been
prevented by Good Industry Practice,
governmental
restraint, any Act of Parliament or
legislation,
bye-law, prohibition, measure or
Directive (not
being any order regulations or directive
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;
"Good Industry Practice" 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;
"the Grid Code" the document or documents
produced pursuant
to one of the conditions of the NGC
Transmission
Licence, as from time to time revised in
accordance with the Conditions of the
NGC
Transmission Licence;
"HV" of a nominal voltage exceeding 650
volts;
"Intellectual Property" patents, trademarks, service
marks, rights in
designs, trade names, copyrights and
topography
rights (whether or not any of the same
is registered
and including applications for
registration of any
of the same) and rights
under licences and consents in relation
to any of
the same and all rights or forms of
protection of
a similar nature or having equivalent or
similar effect to any
of the same which may subsist anywhere
in the
world;
"Line" any line which is used for
transmitting and/or
distributing electricity and includes
anything
exclusively supporting such line that is
to say
any structure pole or other thing in on
by or
from which any such line is or may be
supported
carried or suspended any apparatus
connected
to any such line for the purpose of
carrying
electricity and any wire cable tube pipe
or other
similar thing (including its casing or
coating)
which surrounds or supports or is
surrounded
or supported by or is installed in close
proximity to or is supported carried or
suspended in association with any such
line
earthing wires fibre optic cables and
other
ancillary equipment which belong to the
PES
"Modification" in relation to a Line Cable or
Asset, any
alteration to or replacement of such
Line Cable
or Asset pursuant to Clauses 2.2 or 3.1
of this
Agreement and "Modify" and "Modified"
shall
be construed accordingly;
"NGC Transmission Licence" NGC's licence granted pursuant
to Section
6 (1)(b) of the Act;
"Party" each person for the time being and
from time
to time party to this Agreement and any
successor(s) in title to, or permitted
assign(s)
of, such person;
"Permitted Purpose" in relation to a Right of Access,
the purpose
specified in this Agreement for which
such
Right of Access is granted;
"Public Electricity Supply the PES's licence granted
pursuant to Section
Licence" 6 of the Act;
"Relocation Proposal" a proposal by NGC to the PES
pursuant to
sub-clause 5.1 for the relocation of any
of the
PES's Assets on NGC's Land;
"Regulations" the Electricity Supply Regulations
1988 or any
amendment thereof;
"Right of Access" full right and liberty during the
currency of this
Agreement to enter upon and through and
remain upon any part of NGC's Land
subject
to the provisions of Clause 8;
"Services" in the context of Clause 9, goods
and services
of the kind listed in Schedule 5 to be
agreed
or determined pursuant to Clause 27;
"Supplemental Connection a site specific connection
agreement to be
Agreement" entered into between NGC and the
PES in
substantially the form set out in the
appropriate schedule to the Connection
Agreement;
1.2 In this Agreement:-
(i) unless the context otherwise requires all references to
a particular clause, sub-clause,
paragraph or Schedule shall be a reference to that
clause, sub-clause paragraph or
Schedule in or to this Agreement;
(ii) the table of contents and headings are inserted for
convenience only and shall be
ignored in construing the Agreement;
(iii) references to the words "include" or "including"
are to be construed without
limitation to the generality of the preceding words;
(iv) unless there is something in the subject matter or the
context which is inconsistent
therewith, any reference to an Act of Parliament or any
Section thereof or Schedule
thereto, or other provision thereof or any instrument,
order or regulation made
thereunder shall be construed at the particular time,
as including a reference to any
modification, extension, replacement or reenactment
thereof then in force and to all
instruments, orders or regulations then in force and
made under or deriving validity
from the relevant Act of Parliament; and
(v) references to the masculine shall include the feminine
and references in the singular
shall include the plural and vice versa and words
denoting natural persons shall
include companies, corporations and any other legal
entity and vice versa.
2. RIGHT TO RETAIN ASSETS LINES AND CABLES
2.1 Subject to sub-clause 5.1, NGC hereby grants to the PES the
right to retain use and Modify
as provided in this Agreement the PES's Assets on NGC's Land
in such places as they are
currently situated and such right shall extend to any
Modified PES Asset. NGC undertakes to maintain any shelter
or support enjoyed by the PES's Assets at the date of this
Agreement or, if later, when Modified as aforesaid and
grants to the PES a Right of Access for the purpose of the
use, maintenance, inspection, testing, removal, operation,
modification, or repair of any of the PES's Assets or for
the purpose of
compliance with any statute or Directive under the
provisions of Clause 4.
2.2 Subject to Clause 6 NGC hereby grants the PES the right:-
2.2.1 to retain and use all Lines and Cables which are
now or shall (in accordance with the
terms of this Agreement) be installed in over or
through NGC's Land and grants to the
PES a Right of Access for the purpose of the use
maintenance, inspection, testing,
removal, operation, Modification or repair of any of
the Lines and Cables
2.2.2 subject to obtaining the prior written consent of
NGC (such consent not to be unreasonably
withheld or delayed) to replace such Lines and Cables
with Lines and Cables of the same
or similar type either in the same position or in such
other position as the NGC may
approve (such approval not to be unreasonably withheld
or delayed and not to be
granted subject to the payment of any sums of money)
and forthwith after any such
replacement to remove the Lines and Cables from NGC's
Land and repair any damage
so caused
2.2.3 to install new or additional Lines and Cables over
on or through NGC's Land but only to
the extent necessary to exploit the capability of the
PES's Assets as at the date of this
Agreement on NGC's Land such installation to be subject
to the prior written consent
of NGC (such consent not to be unreasonably withheld or
delayed) and subject to
compliance with the following;-
(i) the PES shall in such circumstances give to NGC
written notice requiring
NGC to grant a wayleave (as hereinafter defined)
within a period
specified in the notice not being less than 21
days
(ii) within the period specified in the said notice or
such longer period as the
Parties may agree NGC may:-
(a) grant the required wayleave or
(b) grant or indicate a willingness to grant a
wayleave subject to such
terms and conditions as NGC may consider
reasonable (such terms
and conditions to include terms and
conditions relating to the route
of the Line or Cable the period during which
the wayleave may
continue in force and any payment to be made
by the PES whether
of a capital or periodic nature as
consideration for the wayleave)
(iii) in the event that NGC shall have failed to
grant the wayleave as required
by the PES or indicated a willingness to grant a
wayleave subject to terms
and conditions to which the PES objects the PES
may refer the matter for
resolution in accordance with Clause 13
(iv) a "wayleave" means consent for the PES to install
and keep installed a new
Line or Cable on under or over NGC's Land and to
have access thereto for
the purposes of inspecting, testing, maintaining,
repairing, removing, renewing,
operating altering or replacing the same
2.2.4 All other provisions of this Agreement shall apply
to any new Line or Cable so
installed
2.3 NGC hereby grants to the PES the right to use any conducting
media under over or on the NGC's Land for the passage and
running of gas, water, electricity, telephone and other
communication media and services now benefiting the PES's
Assets
2.4 The PES shall, if considering moving, replacing or altering
any of the PES's Assets, give due consideration as to
whether it shall be operationally practicable, desirable and
reasonably economic to move such Asset to (or place the
replacement or altered Asset on) its own property.
3. MODIFICATION
3.1 The PES may replace or alter any of the PES's Assets
provided that:-
3.1.1 The replacement Asset or the Asset as so altered:-
(i) is placed in the same or approximately the same
position;
(ii) fulfills the same or a similar purpose;
(iii) can, where relevant, be accommodated in and
on existing buildings
or structures;
(iv) does not require additional or improved facilities
or services
from NGC;
(v) does not restrict the actual and intended use of
NGC's Land and
any equipment thereon or therein to any materially
greater extent
than the Asset so replaced or altered; and
(vi) is (unless otherwise agreed by NGC (such agreement
not to be
unreasonably withheld or delayed)) either of the
same or a
similar smaller size or the alteration is effected
substantially
within the space occupied by such Asset to enable
the Asset
to be used up to its full capability.
3.1.2 Prior written notification has been given to NGC.
3.1.3 Subject to NGC's prior approval (such approval not
be unreasonably withheld or
delayed) the PES may if necessary install the modified
Asset adjacent to the Asset
to be replaced so as to enable dual running whilst the
modified Asset is commissioned
provided that the PES shall remove the Asset for which
the replacement is substituted as
soon as practicable
3.1.4 NGC shall if considering materially moving any of
its assets to a position adjacent to
any of the PES's Assets or replacing or altering any of
its assets which are situated
adjacent to the PES's Assets or making any substantial
alteration to any building in
which the PES's Assets are situated give due
consideration to the PES's operational
requirements of which NGC is aware
3.2 If any Modification shall require minor alterations or works
to the existing buildings or structures of NGC housing or
supporting the PES's Asset in question, such alterations or
works may be carried out (with the prior written approval of
NGC (such approval not to be unreasonably withheld or
delayed)) but at the cost of the PES.
3.3 To the extent that any of the conditions of Clause 3.1 are
not met in relation to any Modification, NGC may by notice
in writing require the PES promptly to remove such
replacement or alteration and if the PES fails to do so may
remove the same itself at the cost and expense of the PES.
On such removal, the PES may reinstate the Asset so replaced
or altered.
4. SAFETY SECURITY AND COMPLIANCE WITH STATUTES
4.1 NGC undertakes in relation to the PES's Assets to maintain
and provide security in accordance with the arrangements set
out in Part 1 of Schedule 3.
4.2 Each Party shall procure that as between the parties all
reasonable and necessary steps are taken, as and when
necessary or desirable, in cooperation with the other (and,
so far as applicable, with any third party), to ensure
compliance with the provisions (each such provision or part
thereof being in this Clause 4 and "Obligation") of:-
(i) all statutes and Directives applicable to any of the
PES's Assets and/or any part
(including the whole) of NGC's Land and/or the
employees of either party; and
(ii) any statute or Directive which may affect any other
property (of whatever nature) of
either Party as a result of the existence, nature,
location, or manner of operation of
any of the PES's Assets.
4.3 Each Party shall, so far as it is aware of the same, unless
it has reasonable grounds for believing that the other party
possesses the information, keep the other Party informed of
all material matters relating to any Obligation.
4.4 In the event of any dispute as to responsibility, as between
the Parties, pursuant to Clause 4.2, for compliance with an
Obligation, that responsibility shall be allocated, so far a
practicable, on the basis that:-
(i) each Party shall refrain from taking or permitting any
action which would prevent
compliance with an Obligation; and
(ii) positive action required in relation to a Party's land
or asset as a consequence of the
existence, nature, location or manner of operation of
that land or asset shall be the
responsibility of that Party, and, to the extent that
such action is required in respect of
or affecting any property of the other Party (or
property of a third party located in or on
that other Party's land), such action may be taken with
the prior approval of that other
Party (such approval, subject to (i) above, not to be
unreasonably withheld or delayed).
4.5 The provisions for safety coordination between the Parties
contained in Part 2 of Schedule 3 shall apply.
5. RELOCATION OF PES's ASSETS
5.1 At any time and from time to time NGC may (with the prior
written consent of the PES (such consent not be unreasonably
withheld or delayed)) request the PES to relocate any of the
PES's Assets either to a different location on NGC's Land or
to the PES's or a third party's land, such consent to be
sought given or referred in accordance with the following
procedure:-
5.1.1 NGC shall serve a written notice on the PES, which
notice shall specify:-
(a) the PES's Assets (other than the Lines and Cables)
which NGC
wishes to be relocated;
(b) the reasons for such wish;
(c) the proposed new location for such assets;
(d) the timing of carrying out such relocation;
(e) the route of any Ancillary Lines and Cables
required to be
relocated; and
(f) any reasonable conditions with which such
relocation or
repositioning must comply.
5.1.2 The PES shall within four months of receipt of any
such notice serve a counter
notice stating:-
(a) whether or not in its reasonable opinion such
Relocation Proposal
is acceptable to it;
(b) if the Relocation Proposal is not acceptable to
the PES, the grounds
for such opinion and the terms of any alternative
proposal ("the
Alternative Relocation Proposal") covering so far
as relevant the
matters referred to in items (a) to (f) of sub-
clause 5.1.1 which
would be acceptable to the PES; and
(c) in respect of the Relocation Proposal (if
accepted) or of any
Alternative Relocation Proposals, an estimate
(sufficiently detailed
having regard to the circumstances) of the proper
costs likely to be
incurred in connection with considering the
Relocation Proposal
or the Alternative Relocation Proposal and
effecting the said
relocation of the PES's Assets and the proper
costs of relocating
any other equipment that may be necessary as a
result of the
relocation of those Assets and the reasonable cost
of employing staff
involved in the relocation and reasonable internal
management costs
and any consequential losses (excluding any
relating to operating
costs) including payments to third parties
incurred as a result of the
relocation of those Assets and the proposed manner
and timing
of payment of the same by the NGC.
5.1.3 If within one month of the date of such counter
notice (or such longer period as
may be reasonably necessary) NGC has not withdrawn the
Relocation Proposal
and the Parties have not agreed upon it or the
Alternative Relocation Proposal
(if any) or a variation of either of them and upon the
best estimate reasonably
available of the costs likely to be involved on the
basis referred to in Clause
5.1.2(c) the matter shall be dealt with in accordance
with Clause 13.
5.2 Upon approval or settlement of any Relocation Proposal,
Alternative Relocation Proposal or variation thereof
pursuant to Clause 5.1 the PES shall proceed diligently to
obtain or procure all necessary consents permissions and
licences to enable it to relocate the PES's Assets (and any
Lines and/or Cables consequently required to be relocated)
provided that if the PES having used all reasonable
endeavours (including the lodging and pursuing of an appeal
to the appropriate authority if there are reasonable grounds
for an appeal) shall have failed to obtain such consents
permissions and licences as aforesaid then the Relocation
Proposal or the Alternative Relocation Proposal or variation
thereof shall be of no further effect save that NGC shall
not be prevented from making at any other time further
Relocation Proposals.
5.3 On receipt of any necessary consents as aforesaid and
provided NGC has taken any necessary steps to facilitate
such relocation the PES shall relocate or procure the
relocation of the relevant PES's Assets as quickly as
reasonably practicable (having regard to, amongst other
things, technical and operational requirements and to its
obtaining all necessary licences and consents).
5.4 NGC shall pay to the PES all costs incurred pursuant to
Clause 5.1 which shall be (as far as practicable) in line
with the estimate agreed or settled pursuant to Clause 5.1
provided that all reasonable endeavours are used to minimise
such costs and provided further that in the event the
Relocation Proposal is withdrawn by NGC or consent thereto
is reasonably withheld by the PES pursuant to Clause 5.1 or
the PES shall be unable to obtain all the said necessary
consents licences or permission NGC shall within 28 days of
demand pay to the PES all costs incurred as aforesaid by the
PES in connection with the Relocation Proposal and any
Alternative Relocation Proposal.
5.5 The rights and obligations of the parties hereunder shall
continue to apply to any of the PES's Assets as relocated
including the provisions of this Clause 5.
6. RELOCATION OF LINES AND CABLES
6.1 At any time and from time to time NGC may with the prior
written consent of the PES (such consent not be unreasonably
withheld or delayed) by notice in writing addressed to the
PES require the PES to relocate or re-position the then
existing Lines and Cables of the PES (or any or all of such
Lines and Cables) which are situated in on over or through
NGC's Land (in this paragraph all such Lines and Cables
being hereinafter referred to as "the Equipment").
6.2 The said notice to be served by NGC on the PES shall specify
(a) the Equipment which the NGC wishes to be relocated or
re-positioned (b) a reasonable time in which such relocation
or re-positioning is to be carried out (c) a suitable
alternative location or route for the Equipment and (d)
reasonable conditions (if any) in which such relocation or
re-positioning shall be carried out.
6.3 As soon as possible after receipt of the said notice the PES
shall proceed to apply for all necessary consents
permissions and licences necessary for the said relocation
or re-positioning (hereinafter in this Clause 6 called "the
Consents") using all reasonable endeavours to obtain the
same.
6.4 If the PES having used all reasonable endeavours (including
the lodging and pursuing of an appeal to the appropriate
authority if there are reasonable grounds for an appeal)
shall have failed to obtain the Consents then the said
Notice shall be of no further effect save that NGC shall not
be precluded from serving at any other time further notices
under this or any other Clause or Sub-clause and save
further that NGC shall forthwith reimburse to the PES all
costs properly incurred by the PES in connection with the
provisions of this Clause 6.
6.5 If the PES shall obtain the Consents the PES shall as soon
as practicable diligently carry out such relocation or re-
positioning of the Equipment to the reasonable satisfaction
of NGC and shall make good all damage caused by the said
relocation or re-positioning of the Equipment.
6.7 From time to time NGC shall pay to the PES all costs (a)
properly incurred by the PES in effecting the said
relocation or re-positioning of the Equipment and (b)
properly incurred in complying with the obligations under
the preceding sub-clauses of this Clause 6 such costs to
include any consequential losses (excluding any relating to
operating costs) the reasonable cost of employing staff
involved in the relocation or re-positioning of the
Equipment and the Compliance with the said obligations
including reasonable internal management costs such
payment(s) to be made within 28 days of receipt by NGC of
documentary evidence of the aforesaid costs incurred by the
PES.
6.8 The rights and obligations of the Parties hereunder shall
continue to apply to the Equipment as relocated or re-
positioned including the provisions of this Clause 6.
7. REMOVALS
7.1 In the event that there shall cease to be any Supplemental
Connection Agreement relating to any of the PES's Assets on
NGC's Land the PES shall remove those of the PES's Assets to
which such Supplemental Connection relates (except Ancillary
Cables which shall be made safe) from NGC's Land as quickly
as practicable and in any event within the period provided
in the Supplemental Connection Agreement for the removal of
the PES's Equipment (as therein defined) consequent upon a
disconnection (as defined in the Connection Agreement) and
shall remedy any damage caused to NGC's Land as a result
thereof. The Parties shall negotiate in good faith
appropriate arrangements to minimise the effects of the
removal.
7.2 In the event that the PES is obliged to remove any of its
Assets from NGC's Land, whether under this Clause 7 or
otherwise, and fails to do so in accordance with the
relevant provisions, NGC shall be entitled to remove the
PES's Assets and the PES shall provide all reasonable
assistance to enable NGC safely so to do and shall pay and
reimburse to NGC all costs and expenses reasonably incurred
by NGC in so doing.
8. RIGHTS OF ACCESS
8.1 A Right of Access includes the right to bring on to NGC's
Land such vehicles, plant, machinery, tools, equipment and
maintenance or construction materials as shall be reasonably
necessary for the Permitted Purpose.
8.2 A Right of Access given to the PES may be exercised by any
person, including third party contractors, reasonably
nominated from time to time by the PES. To the extent (if
any) that any particular authorisation or clearances may be
required to be given by NGC and the procedures for giving
and obtaining the same are not for the time being stipulated
in arrangements made pursuant to Clause 8.3, NGC shall give
the same within a reasonable time from the date of the
request therefor, save in the case of emergency in which
case it shall be given without delay.
8.3 The NGC 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 the Right of Access with the minimum of disruption,
disturbance or inconvenience to both Parties. Such
arrangements and provisions may, to the extent that the same
is reasonable, limit or restrict the exercise of the Right
of Access and/or provide for NGC to make reasonable
directions or regulations from time to time in relation to a
specified matter. Matters to be covered by such
arrangements and/or provision include:-
(i) the identification of any relevant PES's Assets;
(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 a Right of
Access;
(iv) any requirements as to prior notification and as to
authorisation of security
clearance of individuals exercising such Rights of
Access, and procedures
for obtaining the same;
(v) the means of communication to the PES and all employees
and/or contractors
who may be authorised from time to time by the PES to
exercise a Right of
Access of any relevant directions or regulations made
by NGC;
(vi) the identification of and arrangements applicable to
Emergency Personnel.
the PES shall procure that any such arrangements and/or
provisions (or directions or
regulations issued pursuant thereto) properly made from time
to time by NGC shall
be observed and performed by the PES and all persons
exercising any Right of Access.
8.4.1 The PES shall procure that all reasonable steps
are taken in the exercise
of any Right of Access to:-
(a) Avoid or minimise damage to NGC's Land, any other
property
thereon or therein;
(b) cause as little disturbance and inconvenience as
possible to NGC
or other occupier of NGC's Land.
and shall promptly make good any damage caused to NGC's
Land and/or such other
property in the course of the exercise of such rights
and shall indemnify NGC
against all actions, claims, proceedings, losses, costs
and demands arising out
of such exercise.
8.4.2 Subject to Clause 8.4.1, all Rights of Access
shall be exercisable free of any
charge or payment of any kind.
8.5 Subject to any contrary arrangements for the time being made
under Clause 8.3 to enable a Right to Access to be exercised
safely where exceptional circumstances so require
8.5.1 a Right of Access for operation or inspection
shall be immediately available
without prior notice and local procedures shall be put
in place to provide
such immediate access;
8.5.2 a Right of Access for the purpose of maintenance,
adjustment, testing or
repair of HV apparatus granted in respect of land on
which exposed HV
conductors are sited shall only be exercisable on the
giving to NGC of
at least 7 days prior written notice (or such other
notice as may be agreed
locally or (if less) such notice as may be reasonable
in the circumstances)
except in the case of loss of load or other system
emergency (in which
event NGC shall render all possible assistance in
procuring that the Right
of Access shall be exercisable as soon as possible).
The Parties will make
local arrangements to ensure that the PES is not
delayed in its ability to
deal with any emergency which has resulted in loss of
load or has resulted
in a reduction in system security;
8.5.3 a Right of Access for the purpose of Modifying any
of the PES's Assets
shall be exercisable only after two weeks prior notice
to NGC (or such
other notice as may be agreed locally or (if less) may
be reasonable in
the circumstances).
8.6 NGC shall procure that all reasonable steps are taken in
respect of its use and occupation of NGC's Land to:-
(i) avoid or minimise damage to the PES's Assets and to any
Common
Assets
(ii) cause as little disturbance and inconvenience as
possible to the PES
by such use occupation and operation and shall promptly
make good
any damage so caused to the PES's Assets and/or any
Common Assets.
9. SERVICES AND USE OF COMMON ASSETS
9.1 Subject as hereinafter provided, in relation to each Common
Asset, NGC shall if required by the PES make the Common
Asset in question available for continued use by the PES to
at least the same extent as it was available for use by the
PES immediately prior to the date of this Agreement.
9.2 Subject as hereinafter provided, in relation to each
Service, NGC shall, if required by the PES, continue to
provide the same to the PES. Such provision shall be of
such a quality and quantity and shall be provided at such
times as the PES shall reasonably request. NGC shall not be
required to exceed the level of quality or quantity of the
Service normally provided prior to the date of this
Agreement unless specifically agreed otherwise between the
Parties (such agreement not to be unreasonably withheld or
delayed and where appropriate to include a provision for
payment for such increased Service) save that with regard to
the Services listed in Part 2 of Schedule 5 NGC shall be
under no obligation at any time to increase the quality or
quantity of any of such Services normally provided prior to
the date of this Agreement.
9.3 Where the use of any Common Asset is made available or such
Services are supplied as aforesaid, the Parties shall
procure that appropriate arrangements and provisions are
made between the local personnel employed by each of them in
that regard such arrangements to include:-
9.3.1 the identification of the Common Assets and/or
Services in question including (where
relevant) the extent of their availability;
9.3.2 the hours during which such use or provision shall
be allowed or made;
9.3.3 any requirements as to notification of use or call
for supply or temporary suspension
thereof;
9.3.4 any requirements as to authorisation or security
clearance of individuals and the
procedure for obtaining the same;
9.3.5 any safety requirements;
9.3.6 administration of payment arrangements.
9.4.1 The provision of use of the Common Assets listed
in Part 1 of Schedule 4 and the
supply of the Services listed in Part 1 of Schedule 5
shall not be terminated unless NGC ceases to
require the common Asset or Service for its own use in which
case
the supply of the Service or use of the Common Asset
may be terminated by not less
than one year's notice in writing.
9.4.2 The provision of use of the common Assets listed
in Part 2 of Schedule 4, and the
supply of those Services listed in Part 2 Schedule 5
shall continue until terminated
by not less than one year's notice in writing.
9.4.3 In the event of a termination under Sub-Clauses
9.4.1 and 9.4.2 above if the PES
still has at the time of such termination a bona fide
requirement for the Common
Asset or Service and shall not be able to obtain an
adequate alternative therefor
whether from a third party or otherwise NGC shall
cooperate with the PES so as
to minimise the effect of such termination on the
operations of the PES including
where practicable the provision of a right to use land
for the location of an
alternative to the Common Asset in question or an
alternative source of supply
for the Service in question provided that (for the
avoidance of doubt) any cost
of the provision of the replacement of the common Asset
or Service shall be borne
by the PES.
9.5 NGC shall maintain the Common Assets in accordance with Good
Industry Practice.
9.6 The PES shall maintain all its relevant assets in such
repair and condition that the level of Services provided
does not substantially increase as a result of the lack of
repair or condition of the relevant assets.
10. PAYMENT
10.1 The Parties agree that save as provided in Clause 10.2 the
provision of the use of Common Assets and the provision of
Services, shall be free of charge for the purposes of this
Agreement.
10.2 the PES agrees to pay NGC for the provision of Insulating
Oil a fee calculated in accordance with the provisions of
Schedule 6.
10.3 Any sums payable under this Agreement shall be payable
together with any Value Added Tax chargeable on the same.
Any costs, expenses or other sums to be repaid or reimbursed
to either Party under this Agreement shall include any
irrecoverable Value Added Tax paid by that Party in relation
to such sums to the extent that no credit is available in
respect thereof under Section 15 of the Value Added Tax Act
1983.
10.4 If either Party fails to pay on the due date any amount
properly due under this Licence such Party shall pay to the
other interest on such overdue amount from and including the
date of such failure to (but excluding) the date of actual
payment (as well after as before judgment) at the rate of 4%
over Barclays Bank PLC base rate for the time being and from
time to time. Interest shall accrue from day to day.
11. NON-INTERFERENCE
11.1 NGC and the PES agree that neither of them nor their agents,
employees and invitees will respectively interfere in any
way with any of the PES's Assets or the property and assets
of NGC which are located at any time on NGC's Land without
the consent of the other Party. For the purposes of this
clause "Interfere" shall include:-
11.1.1 disconnecting or altering the connection of any of
the PES's Asset or the
property or any asset of NGC to any system of cables,
foundations, pipes,
drains or other media to which it may be connected from
time to time or
to prevent supply of any substance or thing through
such connected system;
11.1.2 affixing or removing any item or substance of any
nature whatsoever to or
from any of the PES's Assets or the property or any
asset of NGC;
11.1.3 damaging any of the PES's Assets or the property
or any assets of NGC or
doing or omitting to do any act or allowing any state
of affairs to subsist as
a result of which the PES's Assets or the property or
assets of NGC would
be likely to sustain any material damage;
11.1.4 allowing any other person to interfere with any of
the PES's Assets;
11.1.5 alter any meters or settings on any of the PES's
Assets;
11.1.6 the obstruction of access to any of the PES's
Assets;
11.1.7 impairing the effectiveness of any gate, fence,
wall alarm system or means
of keeping out intruders.
11.2 The obligations contained in this Clause 11 shall be
suspended to the extent that emergency action is taken by
Emergency Personnel in good faith to protect the health and
safety of persons or to prevent damage to property. All
reasonable care shall be taken in the course of such
emergency action. When the emergency has ended, any damaged
property will be reinstated by the Party whose asset gave
rise to the emergency, save for damage occurring by reason
of lack of reasonable care in the course of the emergency
action which shall be the responsibility of the Party taking
the emergency action.
11.3 NGC agrees with the PES:-
(i) to keep NGC's Land or to procure that it be kept in
such state of repair
and condition as shall not cause damage to the PES's
Assets and Lines
and Cables and shall not prevent the PES from
exercising the rights
granted to it herein or from using the PES's Assets for
the purpose of
the PES's business.
(ii) in the event that NGC intends to carry out any works to
NGC's Land or
to exercise the rights referred to herein which shall
involve the
removal or other material interference with any PES's
Asset (including
the construction, repair or alteration of any building
or other erection
on land on which such Asset is situate) and/or any such
works which
may materially prejudice any of the PES's rights
hereunder in respect
of the same NGC shall not commence such works until NGC
has given
notice in writing of its intentions to the PES and (if
necessary) has at the
NGC's expense made adequate provision to ensure that
the PES's Asset
is still capable of use by the PES to the same extent
as previously enjoyed.
(iii) to permit the PES to display warning notices on
NGC's Land as the
PES may reasonably require and other notices as the PES
reasonably
requires with the prior written consent of NGC (such
consent not to be
unreasonably withheld and to include reasonable
conditions as to
appearance, size and location) or are required by
statute.
12. CABLE TUNNELS AND LINES AND CABLES
Any cable tunnels situated under NGC's land shall be kept
fully maintained and repaired on the following basis:
12.1 in the case of cable tunnels containing the HV cables
of one Party only
maintenance of the whole tunnel shall be the
responsibility of that
Party;
12.2 in the case of cable tunnels containing HV cable of
more than one Party
maintenance of the whole tunnel shall be the
responsibility of the Party
with the majority in number of such cables for the time
being and the
cost of such maintenance shall be apportioned between
the Parties
according to level of use;
12.3 in the case of cable tunnels containing solely cables
other than HV
cables maintenance shall be the responsibility of the
Party with the
majority in number of such cables for the time being
and the cost
of maintenance shall be apportioned between the Parties
according
to level of use;
12.4 to the extent that any part of any cable tunnel for
which the PES is
responsible in accordance with the above provisions for
the
maintenance thereof is within NGC's Land NGC grants to
the PES
a Right of Access for all purposes necessary to
discharge its
obligations under this Clause 12 and shall give all
reasonable
cooperation and assistance to the PES as may be
requisite for the
proper discharge by the PES of its obligations under
this Clause.
13. DISPUTE RESOLUTION
13.1 Save where expressly stated in this Agreement to the
contrary and subject to any contrary provision of the Act,
any Licence, or the Regulations, or the rights, powers,
duties and obligations of the Director or the Secretary of
State for Energy 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 hereto shall be and is hereby
referred to arbitration pursuant to the arbitration rules of
the Electricity Supply Industry Arbitration Association in
force from time to time.
13.2 Whatever the nationality, residence or domicile of the
parties hereto 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
(including any modification, extension, replacement or re-
enactment thereof for the time being in force) shall apply
to any such arbitration wherever the same or any part of it
shall be conducted.
13.3 Subject always to Clause 13.5 below, 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 of the Parties (the "defendant contracting
party"), and the defendant contracting party wishes to make
a third party claim (as defined in Clause 13.4 below)
against the other Party ("contracting party") which would
but for this Clause 13.3 have been a dispute or difference
referred to arbitration by virtue of Clause 13.1 above then,
notwithstanding the provisions of Clause 13.1 above 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
third party and the defendant contracting party but also
between either or both of them and the 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.
13.4 For the purpose of this Clause 13 third party claim shall
mean:-
(a) 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
(b) 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
said tariff customer; or
(c) 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
said 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).
13.5 Clause 13.3 above shall apply only if at the time the legal
proceedings are commenced no arbitration has been commenced
between the defendant contracting party and the 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.
14. GOVERNING LAW AND JURISDICTION
14.1 This Agreement shall be governed and construed in all
respects in accordance with English law.
14.2 Subject and without prejudice to clause 13 and to clause
14.4 the Parties irrevocably agree that the courts of
England are to have exclusive jurisdiction to settle any
dispute which may arise out of or in connection with this
Agreement and that accordingly any suit, action or
proceeding (together in this clause 14 referred to as
"Proceedings") arising out of or in connection with this
Agreement may be brought in such courts.
14.3 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 14 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.
14.4 For the avoidance of doubt nothing contained in the
foregoing provisions of this clause 14 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.
15. CONFIDENTIALITY
15.1.1 For the purposes of this Clause 15 except where
the context otherwise requires:-
"Authorized Recipient," in relation to any Protected
Information, means
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 this clause 15 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 PES under the provisions of this Agreement;
"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 adviser to or
performs
work in relation to or services for the Main
Business;
"Customer" has the same meaning as in the Connection
Agreement;
"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 Transfer Date (as defined in the
Connection
Agreement) 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;
"Permitted Activities" means activities carried on for
the
purposes of the Main Business;
"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;
"Supplier" has the same meaning as in the Connection
Agreement.
15.1.2 For the avoidance of doubt data and other
information which a Party is
permitted to divulge or publish to the other Party
pursuant to this Agreement
shall not necessarily be regarded as being in the
public domain by reason of
being so discharged or published.
15.2 Confidentiality for NGC and its Subsidiaries.
NGC and its subsidiaries in each of their capacities in this
Agreement shall secure that Protected Information is not:-
15.2.1 divulged by Business Personnel to any person
unless that person is
an Authorised Recipient;
15.2.2 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 require, 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
15.2.3 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.
15.3 Nothing in Clause 15 shall apply:-
15.3.1 to any Protected Information which, before it is
furnished to Business
Personnel is in the public domain;
15.3.2 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 15 does not
apply; or
(b) is acquired by NGC or any subsidiary of NGC in
circumstances in which this clause 15 does apply
and
thereafter ceases to be subject to the
restrictions imposed
by this Clause 15; 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 15; 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
15.3.3 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
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
to comply by virtue of the Act or the NGC
Transmission
Licence; or
(c) in compliance with any other requirement of law;
or
(d) in response to a requirement of any recognised
stock exchange
or regulatory authority or the Panel on Takeovers
and Mergers; or
(e) pursuant to the Arbitration Rules for the
Electricity Supply
Industry Arbitration Association or pursuant to
any judicial
or other arbitral process or tribunal having
jurisdiction in
relation to NGC or any of its subsidiaries; or
(f) in compliance with the requirements of Section 35
of the Act
and with the provisions of the Fuel Security Code;
or
15.3.4 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 as
defined in the Connection Agreement) with the Party to
whose affairs such
Protected Information relates.
15.4 NGC and its subsidiaries may use all and any information or
data supplied to or acquired by it, from or in relation to
the other Party in performing Permitted Activities including
for the following Purposes:-
15.4.1 the operation and planning of the NGC Transmission
System;
15.4.2 the calculation of charges and preparation of
offers of terms for
connection to or use of the NGC Transmission System;
15.4.3 the operation and planning of the Ancillary
Services Business (as
defined in the NGC Transmission Licence) and the
calculation of
charges therefor;
15.4.4 the operation of the Settlements Business (as
defined in the NGC
Transmission Licence);
15.4.5 the provision of information under the British
Grid Systems
Agreement and the EdF Protocol (as defined in the
Connection
Agreement);
and may pass the same to subsidiaries of NGC which carry out
such activities and the parties hereto agree to provide all
information to NGC and its subsidiaries for such purposes.
15.5 NGC undertakes 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
15.5.1 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 is known to be engaged in
the
writing of electricity purchase contracts (as
defined in the
NGC Transmission Licence); or
(c) known to be retained as a consultant to any such
person
who is referred to in (a) or (b) above; or
15.5.2 who is to be transferred to the Generation
Business save where NGC or
such subsidiary could not, in all circumstances
reasonably be expected
to refrain from divulging to such Business Person
Protected Information
which is required for the proper performance of his
duties.
15.6 Without prejudice to the other provisions of this Clause 15
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.
15.7 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.
15.8 Confidentiality other than for NGC and its Subsidiaries.
15.8.1 The PES hereby undertakes with 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 in the
circumstances
set out in Clause 15.8.2 or to the extent expressly
permitted by
this Agreement or with the consent in writing of NGC.
15.8.2 Exceptions: the circumstances referred to in
Clause 15.8.1 are:-
15.8.2.1 where the Confidential Information, before it
is
furnished to the PES, is in the public domain; or
15.8.2.2 where the Confidential Information, after it
is
furnished to the PES:-
(a) is acquired by the PES in circumstances in
which this Clause 15 does not apply; or
(b) is acquired by the PES in circumstances in
which this Clause 15 does apply and there-
after ceases to be subject to the
restrictions
imposed by this Clause 15; or
(c) enters the public domain and in any such
case otherwise than as a result of a breach
by the PES of its obligations in this Clause
15 or a breach by the person who disclosed
that Confidential Information of that
person's
confidentiality obligation; or
15.8.2.3 if the PES is required or permitted to make
disclosure of
the confidential Information to any person:-
(i) in compliance with the duties of the PES
under
the Act or any other requirement of a
Competent
Authority;
(ii) in compliance with the conditions of any
Licence
or any document referred to in any Licence
with
which the PES is required to comply;
(iii) in compliance with any other requirement
of law;
(iv) in response to a requirement of any stock
exchange
or regulatory authority or the Panel on
Takeovers
and Mergers; or
(v) pursuant to the Arbitration Rules for the
Electricity
Supply Industry Arbitration Association or
pursuant
to any judicial or other arbitral process or
tribunal
having jurisdiction in relation to the PES;
or
15.8.2.4 when Confidential Information is furnished by
the PES to the
employees, directors, agents, consultants and
professional
advisers of the PES, in each case on the basis set
out in the
sub-clause 15.9.
15.9 With effect from the date of this Agreement the PES shall
adopt procedures within its organisation for ensuring the
confidentiality of all Confidential Information which it is
obliged to preserve as confidential under Clause 15.8.
These procedures are:-
15.9.1 the Confidential Information will be disseminated
within the PES only
on a "need to know" basis;
15.9.2 employees, directors, agents, consultants and
professional advisers
of the PES in receipt of Confidential Information will
be made
fully aware of the PES's obligations of confidence in
relation
thereto; and
15.9.3 any copies of the Confidential Information whether
in hard copy
or computerised form will clearly identify the
Confidential
Information as confidential.
16. DEALINGS WITH LAND
16.1 Each party agrees that it shall not by any act or default
render the PES's Assets or the assets of NGC on NGC's Land
(as appropriate) liable to any distress, execution or other
legal process, and in the event that such assets shall
become so liable, shall forthwith give notice of any such
proceedings to the other Party and shall forthwith notify
any third party instituting any such process of the
ownership of such assets.
16.2 If NGC desires to mortgage or charge any of its land or its
interest therein on which any of the PES's Assets are
located or if either party desires to mortgage or charge any
of its own assets or to enter into any arrangement which, if
made, might affect the rights of the other Party expressly
granted herein, then that Party shall ensure that the other
Party's assets are not and will not be subject to the rights
granted therein and are not and will not be affected by the
mortgage, legal charge or other agreement or arrangement,
and shall give written notification thereof to the other
Party.
16.3 In the event that NGC shall wish to grant rights over or
dispose of any interest in or change the use of any land to
which this Agreement applies NGC shall notify the PES of
such wish and fully consult with the PES in respect thereof
and shall not grant such rights or make such disposal or
change of use subject to and where appropriate with the
benefit of this Agreement and where the disposal involves
the Common Assets and/or Services shall procure that the
party to whom the interests are disposed of shall complete a
deed of covenant with the PES in such form as the PES shall
reasonably require to enable the PES to continue to have the
use of such Common Assets or Services to the same extent as
prior to such disposal.
17. LIMITATION OF LIABILITY
17.1 Save where any provision of this Agreement provides for an
indemnity and save as provided in this sub-clause 17.1 and
sub-clause 17.2 neither party (the "Party Liable") nor its
officers, employees or agents shall be liable to the other
party for loss arising from any breach of this Agreement
other than for loss directly resulting from such breach and
which at the date hereof was reasonably foreseeable as not
unlikely to occur in the ordinary course of events from such
breach and which resulted from:-
17.1.2 physical damage to the property of the other
Party, its officers,
employees or agents; and/or
17.1.2 the liability of the other Party to any other
person for loss
arising from physical damage to the property of such
other
person.
17.2 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 the other Party, its
officers, employees or agents, from and against all such and
any loss or liability which 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,
its officers, employees or agents.
17.3 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 the other party for:-
17.3.1 any loss of profit, loss of revenue, loss of use,
loss of contract
or loss of goodwill; or
17.3.2 any indirect or consequential loss; or
17.3.3 loss resulting from the liability of such other
Party to any
other person howsoever and whensoever arising save as
provided in sub-clauses 17.1.2 and 17.2.
17.4 The rights and remedies provided by this Agreement to the
parties are exclusive and not cumulative and exclude and are
in place of all substantive (but not procedural) rights or
remedies express or implied and provided by common law or
statute in respect of the subject matter of this Agreement,
including without limitation any rights either party may
possess in tort which shall include actions brought in
negligence and/or nuisance. Accordingly, each of the
parties hereby waives in the fullest extent possible all
such rights and remedies provided by common law or statute,
and releases the Party Liable 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.
17.5 Save as otherwise expressly provided in this Agreement, this
clause 17 insofar as it excludes or limits liability shall
override any other provision in this Agreement provided that
nothing in this clause 17 shall exclude or restrict or
otherwise prejudice or affect any of:-
17.5.1 the rights, powers, duties and obligations of
either Party which
are conferred or created by the Act, the NGC
Transmission
Licence, the PES Licence or the Electricity Supply
Regulations
1988 or any amendment or re-enactment thereof; or
17.5.2 the rights, powers, duties and obligations of the
Director or the
Secretary of State under the Act, any such Licence as
aforesaid
or otherwise howsoever.
17.6 Each of the sub-clauses of this clause 17 shall:-
17.6.1 be construed as a separate and severable contract
term, and if
one or more of such sub-clauses is held to be invalid,
unlawful
or otherwise unenforceable the other or others of such
sub-
clauses shall remain in full force and effect and shall
continue to
bind the parties; and
17.6.2 survive termination of this Agreement.
17.7 Each Party acknowledges and agrees that the other Party
holds the benefit of sub-clauses 17.1 and 17.2 and 17.3
above for itself and as trustee and agent for its officers,
employees and agents.
17.8 Each Party acknowledges and agrees that the provisions of
this clause 17 have been the subject of discussion and
negotiation and are fair and reasonable having regard to the
circumstances as at the date hereof.
18. INTELLECTUAL PROPERTY
All Intellectual Property relating to the subject matter of
this Agreement conceived, originated, devised, developed or
created by a Party, its officers, employees, agents or
consultants during the currency of this Agreement shall vest
in such Party as the sole beneficial owner thereof save
where the Parties agree in writing otherwise.
19. FORCE MAJEURE
If either Party (the "Non-Performing Party") shall be unable
to carry out any of its obligations under this Agreement due
to a circumstance of Force Majeure this Agreement shall
remain in effect but save as otherwise provided herein the
Non-Performing Party's obligations hereunder shall be
suspended without liability for a period equal to the
circumstance of Force Majeure provided that:-
(i) the Non-Performing Party gives the other Party prompt
notice describing
the circumstances of Force Majeure, including the
nature of the occurrence,
its expected duration and the particular obligations
affected by it, and
thereafter furnishes regular reports with respect
thereto during the period
of Force Majeure;
(ii) the suspension of performance is of no greater scope
and of no longer
duration than is required by the Force Majeure;
(iii) no liabilities of either Party that arose before
the Force Majeure causing
the suspension of performance are affected as a result
of the Force Majeure;
(iv) the non-performing Party uses all reasonable efforts to
remedy its
inability to perform; and
(v) as soon as practicable after the event which
constitutes Force Majeure
the Parties shall discuss how best to continue their
operations so far
as possible in accordance with this Agreement.
20. WAIVER
No delay or omission of NGC or the PES in exercising any
right, power, privilege or remedy under this Agreement shall
operate to impair such right, power, privilege or remedy or
be construed as a waiver thereof. Any single or partial
exercise of any such right, power, privilege or remedy shall
not preclude any other or future exercise thereof or the
exercise of any other right, power, privilege or remedy.
21. NOTICES
21.1 Any notice or other communication to be given by one Party
to the other under, or in connection with the matters
contemplated by, this Agreement shall be addressed to the
recipient and sent to the address, telex number or facsimile
number of such other Party given in Schedule 7 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 21 to the Party giving the relevant notice or other
communication to it.
21.2 Any notice or other communication to be given by one Party
to the other Party under, or in connection with the matters
contemplated by, this Agreement shall be 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:-
21.2.1 in the case of delivery by hand, when delivered;
or
21.2.2 in the case of first class prepaid post, on the
second day
following the day of posting or (if sent airmail from
overseas) on the firth day following the day of
posting; or
21.2.3 in the case of telex, on the transmission of the
automatic
answerback 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
21.2.4 in the case of facsimile, on acknowledgment by the
addressee's facsimile receiving equipment (where such
acknowledgment occurs before 1700 hours on the day
of acknowledgment) and in any other case on the day
following the day of acknowledgment.
22. VARIATIONS
The provisions of Schedules 4 and 5 may be varied form time
to time by written memorandum referring to this Clause 22
and signed by an authorised office of each of the parties.
Subject thereto no variations to this Agreement shall be
effective unless made by way of supplemental deed.
23. OVERRIDING PROVISIONS
[23.1] In the event of any conflict between the obligations of
a successor to NGC or the PES hereunder and their
obligations under the NGC Transmission Licence and PES
Licence, the Act, any direction of the Secretary of State
for Energy, the Director or ruling of the Monopolies and
Mergers Commission, the Grid Code, under any Connection
Agreement or under any Supplemental Connection Agreement
relating to any of the PES's Assets, the provisions of the
NGC Transmission Licence and PES Licence, the Act, the Grid
Code, any Connection Agreement or any Supplemental
Connection Agreement relating to any of the PES's Assets,
the direction of the Secretary of State for Energy, the
Director, or ruling of the Monopolies and Mergers Commission
shall prevail and accordingly NGC and the PES respectively
shall not be responsible for any failure to perform their
respective obligations hereunder to the extent that any such
failure is directly attributable to proper compliance with
such provisions, rulings or directions.
[23.2 In the event of any inconsistency between the terms of
this Agreement and the terms of an agreement between NGC and
Nuclear Electric plc to take effect from 31st March 1990
relating to access to or use of property or equipment
affected by a Nuclear Site Licence ("the Nuclear Site
Licence Agreement") a copy of which as been disclosed to the
PES prior to the date hereof the terms of the latter shall
prevail.
23.3 The PES hereby covenants with NGC to comply with the
provisions of the Nuclear Site Licence Agreement in so far
as it affects the PES's Assets and the exercise by the PES
of its rights under this Agreement.
23.4 NGC hereby covenants with the PES to comply with the
provisions of the Nuclear Site Licence Agreement insofar as
it affects the NGC's Land and the assets of the NGC
thereon.]
24. ASSIGNMENT AND SUB-CONTRACTING
24.1 The PES shall not assign or otherwise deal (in whole or in
part) with its rights hereunder save that the PES may with
the prior written consent of NGC such consent not to be
unreasonably withheld:-
24.1.1 charge the rights as a whole,
24.1.2 assign the rights as a whole to a person holding a
Licence granted pursuant
to section 6(1)(c) or 6(2) of the Act or to a company
of which the PES
holds beneficially the whole of the issued share
capital or which holds
the whole of the issued share capital of the PES
24.1.3 assign the rights as a whole to an assignee which
is contemporaneously
acquiring a substantial part of the undertaking of the
PES in connection
with the distribution of electricity.
24.2 Each Party shall have the right to sub-contract or delegate
the performance of any of its obligations or duties arising
under this Agreement without the consent of the other. The
sub-contracting by either Party of the performance of any
obligations or duties under this Agreement shall not relieve
such Party from the liability for performance of such
obligation or duty.
25. ILLEGALITY AND PARTIAL INVALIDITY
25.1 If at any time any provision of this Agreement should become
or be declared unlawful, invalid, illegal or unenforceable
in any respect under the law of any jurisdiction, neither
the validity, legality or enforceability of the remaining
provisions nor the validity, legality or enforceability of
such provision under the law of any other jurisdiction shall
be affected.
25.2 If any part of a provision of this Agreement is or becomes
or is declared invalid, unlawful, illegal or unenforceable
but the rest of such provision would remain valid, lawful or
enforceable if part of the wording were deleted the
provision shall apply with such modifications as may be
necessary to make it valid, lawful, enforceable and
effective but without affecting the meaning of legality,
validity or enforceability of any other provision of this
Agreement.
26. TERM AND TERMINATION
This Agreement shall continue until none of the PES's Assets
are on any part of NGC's Land and no Common Assets or
Services are shared by or provided to the PES pursuant to
this Agreement.
27 AGREEMENT AS TO ASSETS, SERVICES AND COMMON ASSETS
27.1 The parties shall within twelve months of the date hereof
agree on the following:-
27.1.1 The PES's Assets which are actually on NGC's Land
as at the
date hereof and,
27.1.2 the Services and Common Assets which are on NGC's
Land
and are required by the PES as at the date hereof,
27.1.3 the Lines and Cables belonging to the PES and the
routes
thereof which are on and/or under NGC's Land as at the
date hereof,
27.1.4 in respect of the Services agreed upon pursuant to
the preceding
sub-clause of the kind specified in Part 2 of Schedule
5 details
of the level of quality or quantity of such Service as
at the
date hereof.
27.2 If the Parties fail to agree any of the matters referred to
in this Clause either may refer the same for resolution in
accordance with Clause 13 at any time after a disagreement
arises.
28. REGISTRATION AND MEMORANDUM
28.1 Where any or all of NGC's Land is registered or NGC's
interest therein is subject to compulsory registration at
H.M. Land Registry NGC agrees to apply to the Chief Land
Registrar for the registration as appropriate of the rights
and obligations granted by or contained in this Agreement
and further agrees to place on deposit at H.M. Land Registry
all relevant Land or Charge Certificates to enable such
registration to be effected as and when such Land or Charge
Certificate are available.
28.2 Where any of NGC's Land is not so registered or subject to
compulsory registration, NGC is entitled to procure within
six months of the date hereof that a memorandum of this
agreement is endorsed on or otherwise securely attached to
the most recent conveyance (in the case of a freehold
interest) or the lease under or pursuant to which NGC holds
NGC's land.
29. ENTIRE AGREEMENT
29.1 This Agreement contains or expressly refers to the entire
agreement between the Parties with respect to the subject-
matter hereof, and expressly excludes any warranty condition
or other 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 this Agreement.
29.2 The parties acknowledge that each of them may have entered
or may enter into agreements with any generating company (as
defined in the Act) containing similar rights and/or
liabilities to those contained in this Agreement affecting
the PES's Assets NGC's Land and any assets thereon. The
Parties shall, when entering into such agreement with any of
the said generating companies, use reasonable endeavours to
avoid conflicts between the provisions thereof and the
provisions of this Agreement but in the event of any
conflict the Parties shall procure that appropriate
arrangements are made to settle the same to give full effect
(so far as practicable) to the rights and liabilities under
this Agreement and under such other agreements as aforesaid.
Where relevant the provisions of Clause 8.3 shall apply. In
the event of any dispute as to such conflict and/or
arrangements the dispute shall be dealt with in accordance
with Clause 13.
IN WITNESS whereof this Agreement has been entered into under
seal the day and year first above
written.
SCHEDULE 1
The PES's Assets on NGC's Land
Assets of the following kind:-
(a) HV Apparatus including/comprising busbar isolators, circuit
breaker, earth switch,
current transformer, voltage transformer
(b) Termination Apparatus including/comprising overhead
connection tension
insulators and downdroppers/HV cable and sealing ends
(c) Protection, control and alarm apparatus (including
associated panels and
multicore cabling)
(d) Intertrip apparatus
(e) Standby diesels
(f) Connections to compressed air and oil installations
(g) Sections of water washing installations
(h) Spares excluding Strategic Spares
(i) Metering equipment
(j) Aerials
(k) MV supply cables and apparatus
(l) Batteries and associated apparatus
(m) Telecommunications apparatus
(n) Cathodic protection
To the extent not included as part of such assets the same shall
be deemed to include all control and
auxillary cables and associated terminations pipes and ducts and
other auxillary equipment exclusively
serving the same.
SCHEDULE 2
NGC'S Land
[Site address]
SCHEDULE 3
Security Details (Cl. 4)
Part 1
1. NGC Land
Security of NGC Site Compounds will be maintained in
accordance with the Electricity Supply Regulations 1988.
All buildings not enclosed within a site compound fence will
be securely locked to restrict unauthorised access. A local
management instruction will apply to the issue of security
keys.
Part 2
Plant MV LV Apparatus Safety Coordination Procedures (Cl. 4.5)
(1) In this Schedule:-
"Apparatus" means all equipment in which electrical
conductors are
used, supported or of which they may form a
part;
"Connection Site" shall have the meaning given to it in
the Grid Code;
"Existing Rules" means the rules, procedures or
current arrangements for
and relating to safety coordination across
boundaries
(to permit work to or testing on the system
of one of the
Parties which, for this to be done safely,
requires
isolation and/or other precautions on Plant
and/or MV
and/or LV Apparatus whether at, adjacent to
or remote
from the location of the work or testing)
which are in
force followed or complied with at NGC's Land
at the
date of this Agreement;
"Low Voltage" or "LV" means a voltage not exceeding 250
volts;
"Medium Voltage" means a voltage exceeding 250 volts but
not exceeding
or "MV" 650 volts;
"Plant" means fixed and moveable items used in
the generation
and/or supply and/or transmission and/or
distribution
of electricity, other than Apparatus.
(2) The Parties will continue to comply with the Existing Rules
pending any agreed modifications thereto.
(3) The Parties will arrange for the Existing Rules (if not
already in writing) to be written down, and in any event, to
be agreed between the person or persons responsible on
behalf of the relevant Parties for the coordination of
safety at each Connection Site(s).
SCHEDULE 4
Common Assets (Cl. 9.1)
Part 1
(a) Batteries
(b) Earthing Systems
(c) Telemetering Equipment
(d) Connections to insulating oil and SF6 gas
installations
(e) Miscellaneous MV/LV cabling
Part 2
(a) Communicating Equipment (excepting Telemetering
Equipment)
(b) Site lighting
SCHEDULE 5
Shared Services (Cl. 9.2)
Part 1
(a) AC and DC electrical supplies
(b) Compressed air for switchgear operation
(c) Water supplies
(d) Insulating Oil
(e) Fire fighting systems and use of adjacent
fire hydrants
(f) Use of system for transporting insulating oil
(g) Use of system for transporting Sulphur
hexafluoride
Part 2
(a) Toilet facilities
(b) Canteen facilities
(c) Public telephones
(d) Cranes and lifting equipment
(e) Security alarm systems
SCHEDULE 6
Charges for the Provision of Services
The charges to be made by NGC for the supply of Insulating
Oil shall be a proper charge having regard to the quantity
of the supply which charge shall be agreed locally from time
to time.
SCHEDULE 7
Addresses, Fax Nos., etc. (Cl. 21.)
PART I
GENERAL
(1) In these standard conditions, except where the context
otherwise requires -
"the Act" means the Gas Act 1986;
"amount" in relation to gas, means the energy content thereof
expressed in therms or kilowatt hours
"appointed day" means the day appointed under section 18(2) of
the Gas Act 1995;
"bill" includes an invoice, account, statement or other
instrument of the like character;
"British Gas plc" means the company which had that name on the
appointed day whether or not that name is subsequently changed;
"charges for the supply of gas" includes, in relation to the
licensee and a particular customer, charges made by the licensee
in respect of the provision to that customer of a gas meter and
cognate expressions shall be construed accordingly subject,
however, to standard condition 7(9);
"chronically sick person" means any person who, by reason of
chronic sickness, has special needs in connection with gas
supplied to him, its use or the use of gas appliances or other
gas fittings;
Condition 1: Interpretation and construction
(1) In these standard conditions, except where the context
otherwise requires -
"the Act" means the Gas Act 1986;
''amount" in relation to gas, means the energy content thereof
expressed in therms or kilowatt hours;
"appointed day" means the day appointed under section 18(2) of
the Gas Act 1995;
"bill" includes an invoice, account, statement or other
instrument of the like character;
"British Gas plc" means the company which had that name on the
appointed day whether or not that name is subsequently changed;
"charges for the supply of gas" includes, in relation to the
licensee and a particular customer, charges made by the licensee
in respect of the provision to that customer of a gas meter and
cognate expressions shall be construed accordingly subject,
however, to standard condition 7(9);
"chronically sick person" means any person who, by reason of
chronic sickness, has special needs in connection with gas
supplied to him, its use or the use of gas appliances or other
gas fittings;
"contract" does not include a deemed contract as hereinafter
defined but includes a contract which by virtue of paragraph
19(2) of Schedule 5 to the Gas Act 1995 is deemed to have been
made, and "contractual" shall be construed accordingly;
"the court" means, in relation to England and Wales, the High
Court; and in relation to Scotland, the Court of Session;
"deemed contract" means a contract which, by virtue of paragraph
a of Schedule 2B to the Act is deemed to have been made:
"deposit by way of security for the payment of charges" includes
any payment which serves the like purpose;
"the Director" means the Director General of Gas Supply;
"disabled person" means any person who, by reason of any
disability, has special needs in connection with gas supplied to
him, its use or the use of gas appliances or other gas fittings
and includes any person who is in receipt of a social security
benefit by reason of any disability;
"domestic customer" has the meaning given by section 15A(10) of
the Act and "non-domestic customer means a customer who is not a
domestic customer;
"domestic purposes", in relation to the use of gas, means
purposes which are not predominantly the purposes of trade or
business or of the activities of a public body (including a
government department and a local authority) or a charitable or
other non-profit making organisation which do not constitute
trade or business and ''non-domestic purposes": shall be
construed accordingly;
"information" has the meaning given by section 48(1) of the Act
and, without prejudice as aforesaid, includes information by way
of forecasts or estimates;
''network code", in relation to a public gas transporter, means
the document prepared by that transporter for the purposes of
condition 7(2) of the Standard Conditions of Public Gas
Transporters' Licences as incorporated in its licence;
"owned" in relation to a gas meter or other property, includes
leased and cognate expressions shall be construed accordingly;
"quantity" and "volume", in relation to gas are synonymous;
"related person" means-
(a) in relation to an undertaking within the meaning of section
259 of the Companies Act 1985(c) the principal undertaking"), a
parent or subsidiary undertaking of the principal undertaking or
a subsidiary undertaking of a parent undertaking of the principal
undertaking, in each case within the meaning of section 258 of
that Act, and
(b) in relation to any person (including such an undertaking), a
connected person of that person within the meaning of section 286
of the Taxation of Chargeable Gains Act 1992;(d)
"relevant shipper" means a gas shipper which has made
arrangements in pursuance of which gas is conveyed to premises to
which the licensee supplies gas;
"relevant supplier", in relation to any premises, means a gas
supplier which supplies gas to those premises;
"relevant transporter" means, in relation to any premises or to a
customer supplied with gas at any premises, the public gas
transporter which conveys gas through pipes to those premises;
"standard condition" means, subject to paragraph (8), this or one
of the following conditions and, in relation to a gas supplier
other than the licensee, it means that condition as incorporated
in that supplier's licence, "incorporated" means incorporated
with or without modification, and cognate expressions shall be
construed accordingly;
"supply gas", in relation to any premises or any person, means
the supply of gas which has been conveyed to those premises, or
that person's premises, by a public gas transporter and includes
the making available of a supply of such gas at the premises in
question at a time when no gas is being taken, and cognate
expressions shall be construed accordingly, and
"terms", in relation to a contract or deemed contract, includes
conditions.
(2) Any reference in a standard condition to the purposes of
that condition generally is a reference to the purposes of that
condition as incorporated in this licence and as incorporated in
each other licence under section 7A(1) of the Act (whenever
granted) which incorporates it.
(3) Without prejudice to sections 11 and 23(1) of the
Interpretation Act 1978(e)-
(a) these standard conditions shall be interpreted and construed
in like manner as an Act of Parliament passed after the
commencement of the said Act of 1978, and
(b) expressions used in these standard conditions which are also
used in Part I of the Act shall, except where the context
otherwise requires, have the same meaning as in that Part
(4) These standard conditions shall have effect as if, in
relation to a licence holder who is a natural person, for the
words "it", "its" and "which" there were substituted the words
"he", "his" and "whom", and cognate expressions shall be
construed accordingly.
(5) The provisions of section 46(1) of the Act (service of
notices etc) shall have effect as if set out herein and as if for
the words "this Part or regulations made under this Part" there
were substituted the words "these standard conditions".
(6) Anything required by these standard conditions to be done in
writing may be done by facsimile transmission of the instrument
in question or by other electronic means and, in such case -
(a) the original instrument or other confirmation in writing
shall be delivered or sent by pre-paid first-class post as soon
as is reasonably practicable, and
(b) where the means of transmission had been agreed in advance
between the parties concerned, in the absence of and pending such
confirmation, there shall be a rebuttable presumption that what
was received duly represented the original instrument.
(7) Where the licensee is required by these standard conditions
to do anything within a specified period or by a specified time
but fails to do so, that requirement shall continue to have
effect after the expiry of that period or after that time without
prejudice, however, to any consequence of its not having done
that thing within the specified period or by the specified time.
(8) Any reference in these standard conditions to-
(a) a provision thereof;
(b) a provision of the Standard Conditions of Gas Shippers'
Licences, or
(c) a provision of the Standard Conditions of Public Gas
Transporters' Licences,
shall, if these or the Standard Conditions in question come to be
modified, be construed, so far as the context permits, as a
reference to the corresponding provision of these or the other
Standard Conditions in question as modified.
(9) In relation to any time after 31st December 1999 -
(a) references in these standard conditions to 2,500 and 75,000
therms shall be construed as references to 73,000 and 2,196.000
kilowatt hours respectively; and
(b) other references in these standard conditions to therms, and
references in these standard conditions to therms or kilowatt
hours, shall be construed as references to kilowatt hours.
(10) Where the holder of this licence is also a gas shipper and
it appears that, as a result, it is necessary or expedient, for
the purpose of giving full effect to any provision of these
standard conditions that it should have effect subject to
modifications -
(a) during the period of 9 months beginning with the appointed
day that provision shall have effect, unless subparagraph (b)
applies, subject to such modifications as necessary or expedient
for that purpose, and
(b) if, during that period, for the purposes of this condition
generally, the Secretary of State designates modifications to
that provision which appear to him to be necessary or expedient
for that purpose, that provision shall thereafter (whether or not
that period has expired) have effect subject to the designated
modifications-
(11) Without prejudice to the provisions of paragraph (1)
defining the expression "supply gas" and providing for the
construction of cognate expressions, the provisions of the
following standard conditions shall not apply in, or in
connection with, a case in which the licensee supplies to any
premises gas which
(a) has been conveyed by it to those premises, by means of a
pipe line system, in pursuance of the exception to section
5(1)(a) of the Act contained in paragraph 3(1) of Schedule 2A
thereto, and
(b) has not be conveyed by a public gas transporter,
except that where the pipe-line system mentioned in sub paragraph
(a) was used as there mentioned on the appointed day, Part III of
these standard conditions shall apply.
(12) In a case in which gas
(a) has been conveyed to a person's premises by a public gas
transporter, and
(b) is conveyed by that person, in pursuance of an exemption
from section 5(1)(a) of the Act granted under section 6A thereof,
to other premises for supply by the licensee to some other
person;
paragraph (13) shall apply and, without prejudice, to any
modifications thereunder, these standard conditions shall have
effect as if for the purposes of the definition of "supply gas"
in paragraph (i), the person first mentioned in this paragraph
were public gas transporter.
(13) Where this paragraph applies and it appears necessary on
expedient that any provision of these standard conditions, for
the purpose of securing that they have, as nearly as may be, the
like effect as they would have had if the gas conveyed to the
other premises mentioned in sub-paragraph (b) of paragraph (12)
had been conveyed thereto by the public gas transporter mentioned
in sub-paragraph (a) of that paragraph should have effect subject
to modifications
(a) during the period of 9 months beginning with the appointed
day that provision shall have effect unless sub-paragraph (b)
applies, subject to such modifications as are necessary or
expedient for that purpose, and
(b) if, during that period, for the purposes of this condition
generally, the Secretary of State designates modifications to
that provision which appear to him to be necessary or expedient
for that purpose that provision shall thereafter (whether or not
that period has expired) have effect subject to the designated
modifications;
and, any question arising under sub-paragraph (a) as to whether
modifications are necessary or expedient shall be determined by
the Secretary of State
(14) Except where the context otherwise requires, a reference in
a standard condition to a paragraph is a reference to a paragraph
of that condition and a reference in a paragraph to a
sub-paragraph is a reference to a sub-paragraph of that
paragraph.
PART II
SUPPLY OBLIGATIONS
Condition 2: Obligation to supply domestic customers
(1) Subject to the following provisions of this condition and to
standard conditions 7 and 8-
(a) the licensee shall supply gas, as soon as is reasonably
practicable, to every potential domestic customer who requests
such a supply at premises specified in the request of which he is
the owner or occupier and which are connected, whether directly
or by means of a service pipe, to such a relevant main as is
mentioned in paragraph (6);
(b) where it is supplying gas to a particular domestic customer
at particular premises, the licensee shall continue to supply gas
to that customer at those premises so long as the customer
requires the licensee to provide such a supply, and
(c) not later than 30 days, or such shorter period as may be
reasonable in the circumstances of the case, before a contract
for the supply of gas to a domestic customer at particular
premises expires or otherwise terminates-
(i) unless the customer has informed the licensee, or indicated
by his actions, that he does not want a new contract, it shall in
writing both offer him a new contract for the supply of gas at
those premises (being a contract which appears to it to be
appropriate) and inform him that contracts on other terms may be
available and as to how information as to their terms may be
obtained so, however, that it shall be sufficient compliance with
the requirement to offer an appropriate new contract if only the
principal terms of the contract offered are set out, and
(ii) unless the customer has informed the licensee, or indicated
by his actions, that he will not want to continue to be supplied
with gas by the licensee, it shall notify the customer, in
writing, of the principal terms of the deemed contract that would
apply upon the expiry or termination of the contract if no new
contract is agreed,
and, for the purposes of this sub-paragraph, "principal terms"
means terms as to the charges and such other terms as might
affect the reasonable evaluation of the contract or deemed
contract and, where the contract first referred to therein is a
contract which, by virtue of paragraph 19(2) of Schedule 5 to the
Gas Act 1995, is deemed to have been made, it shall be a
sufficient compliance therewith if the offer of a new contract,
the information and notification required to be made or given
thereby is made or given to the person who reasonably appears to
the licensee to be the customer concerned.
(2) Subject to the provisions of these standard conditions, the
licensee shall on request by the person concerned -
(a) offer to supply gas to a potential domestic customer in
pursuance of paragraph (1)(a), and
(b) offer to continue to supply gas to a domestic customer in
pursuance of paragraph (1)(b)-
(i) as respects a period immediately following the expiry or
termination of a contract for such supply;
(ii) where gas is being supplied in pursuance of directions given
under standard condition 5, as respects a period immediately
following the termination of the deemed contract under which it
is so supplied, or
(iii) where gas is being supplied, otherwise than as aforesaid,
under a deemed contract,
on any terms determined in accordance with standard condition 3
which are applicable in the particular case.
(3) The licensee shall deal with all requests for a supply of
gas without undue preference or undue discrimination in their
processing.
(4) For the purposes of paragraphs (1) and (2), a person shall
be, in relation to the licensee, a potential domestic customer at
particular premises if he is a person who would be a domestic
customer if supplied with gas at those premises, provided that -
(a) the licensee is licensed under section 7A(l)(a) of the Act to
supply gas to those premises, and
(b) in relation to those premises, no person is bound by the
provisions of a contract with any gas supplier (including the
licensee) to take supplies from that supplier, or, if a person is
so bound, those provisions will either expire or have been
terminated by the person concerned before the date from which a
supply of gas is sought from the licensee.
(5) For the said purposes, a person may be a potential domestic
customer, notwithstanding that he already has a contract for the
supply of gas, if his request and that contract relate to the
supply of gas to different premises.
(6) The relevant main referred to in paragraph (1)(a) is one
which forms part of, is directly or indirectly connected to, or
conveys gas previously conveyed by, the main pipe-line system
which is for the time being operated by -
(a) British Gas plc, or
(b) a public gas transporter which is operating a pipe-line
system consisting of, or including, the whole or any part of what
had been British Gas plc's main pipe-line system.
(7) Where the licensee has applied to the Director for the
revocation of its licence or for a restriction of its licence
under section 7A(6) of the Act specifying premises situated in a
particular area or of a particular description ("excluded
premises") and the Director has granted that request, or
confirmed in writing his intention to do so, then, for such
period not exceeding 3 months, or such longer period of not more
than 6 months as the Director may accept, prior to the date on
which the revocation or restriction takes effect, or is intended
to take effect, as is notified to the Director by the licensee -
(a) nothing in paragraph (1)(a) shall require it to supply gas,
in the case of revocation, at any premises or, in the case of a
restriction, at excluded premises;
(b) notwithstanding paragraph (1)(c), the licensee shall not
offer or enter into any new contract to supply gas to a domestic
customer, in the case of revocation, at any premises or, in the
case of a restriction, at excluded premises.
(8) Where, in preparation for a restriction or the revocation of
its licence, the licensee is making arrangements for securing
continuity of supply for its customers supplied with gas in
pursuance of deemed contracts, it shall, except in so far as the
Director otherwise consents-
(a) in making those arrangements, reasonably endeavour to select
one or more new suppliers which offer or will offer comparable
services at the lowest available cost, and
(b) use its reasonable endeavours to give its customers likely to
be affected reasonable notice of those arrangements.
Condition 3: Standard contractual terms of supply to domestic
customers and return of deposits
(1) Subject to paragraphs (3), (4) and (5), the licensee -
(a) shall determine the terms on which it is prepared to enter
into a contract for the supply of gas to a domestic customer and,
for the purposes of this sub-paragraph
(i) different terms may be determined for different cases or
classes of cases, or for different areas;
(ii) terms as to charges may be expressed as subject to
transportation adjustments within the meaning of paragraph (2)
but, in such case, the licensee shall, if so requested by a
potential domestic customer (within the meaning of standard
condition 2), give him particulars, so far as is reasonably
practicable, of the transportation adjustments (if any) likely to
be made to the charges in respect of the supply of gas to
premises specified in the request;
(iii) the terms shall include ones which correspond, as nearly as
may be (save in so far as they may provide for lower charges), to
those of a deemed contract which would arise in relation to the
supply of gas at any premises by the licensee to a domestic
customer who is in occupation of the premises and, on or after
entering into occupation, first takes gas otherwise than in
pursuance of a contract in a case in which the licensee has
ceased to supply gas to a domestic customer who was his immediate
predecessor in occupation of the premises, and
(iv) so far as the terms provide for charges related to the
amount of gas supplied, subject to paragraph (14), they shall
provide that the number of therms or kilowatt hours supplied
shall be calculated in the same manner as the number of therms or
kilowatt hours conveyed to the premises falls to be calculated in
pursuance of section 12(1) of the Act;
(b) shall give written notice of those terms and of any variation
therein (and if the Director so requires, a revised notice of the
terms) to the Director and shall furnish the Gas Consumers'
Council, and any person who requests a copy, with a copy of any
such notice, and
(c) shall publish, in such manner as in the reasonable opinion of
the licensee will secure adequate publicity for them -
(i) the principal terms determined in accordance with sub-
paragraph (a) and any variation in the principal terms, and
(ii) particulars of any inducements offered to persons who enter
into contracts for the supply of gas, or such contracts
containing particular terms, to the extent to which they might
reasonably be expected to materially affect a person's decision
to enter into a contract for the supply of gas or a contract
containing particular terms;
and, for the purposes of sub-paragraph (c), "principal terms"
means terms as to charges (and as to whether or not they are
expressed as subject to transportation adjustments within the
meaning of paragraph (2)) and such other terms as might affect
the reasonable evaluation of the terms determined in accordance
with sub-paragraph (a).
(2) The reference in paragraph (1)(a)(ii) to transportation
adjustments is a reference to -
(a) where the relevant shipper would be required by the relevant
transporter to pay supplemental charges
(within the meaning of condition 6 of the Standard Conditions of
Public Gas Transporters' Licences) in respect of particular
premises in a designated area (within the meaning of that
condition), an addition to the charges made in the case of those
premises which equals those supplemental charges;
(b) where, in relation to particular premises, the relevant
transporter is not (subject to paragraph (13)) British Gas plc
and the aggregate of the charges made by the relevant transporter
and the relevant charges made by British Gas plc in respect of
the conveyance of the gas supplied to the premises exceeds the
relevant charges made by British Gas plc in respect of the
conveyance of gas to comparable premises, an addition to the
charges made in the case of those premises which equals that
excess, and
(c) where, in relation to particular premises, the relevant
transporter is not (subject to paragraph (13)) British Gas plc
and the relevant charges made by British Gas plc in respect of
the conveyance of gas to comparable premises exceed the aggregate
of the charges made by the relevant transporter and the relevant
charges made by British Gas plc in respect of the conveyance of
the gas supplied to the premises, a reduction in the charges made
in the case of those premises which equals that excess:
and, for the purposes of sub-paragraphs (b) and (c), "relevant
charges" means so much of the charges in respect of the
conveyance of gas as depend upon where it is taken out of the
transporter's pipe-line system and "comparable premises" means
premises at which the reasonably expected consumption of gas is
similar to that at the particular premises in question and which
are situated in the same area of Great Britain as those premises.
(3) The terms as to charges and otherwise of a contract to
supply gas to a domestic customer shall be such as are agreed
between the licensee and the customer concerned so, however,
that-
(a) subject to paragraphs (4) and (5), the terms agreed by the
licensee shall be in conformity with those for the time being
determined under paragraph (1)(a);
(b) where the contract for the supply of gas provides for gas to
be supplied through a pre-payment meter, the licensee shall not
require the customer to make a deposit by way of security for the
payment of charges unless it is reasonable to do so as a result
of the conduct of the customer;
(c) where that contract does not so provide, the licensee shall
not require the customer to make such a deposit which either -
(i) exceeds what is reasonable in all the circumstances of the
case, or
(ii) exceeds the charges payable in respect of the highest
aggregate consumption of gas by the customer reasonably expected
to occur in any period of 6 months during the period of 12 months
following the date on which the deposit is requested.
(4) Where the licensee proposes, in pursuance of a single
contract, to supply to a domestic customer both gas and other
goods or services relating to the supply or use of gas -
(a) excluding -
(i) the provision of a meter, of any device or facilities
designated by the Director for the purposes hereof as serving the
like purposes as a pre-payment meter or of pre-payment
facilities, and
(ii) any related services or services in respect of the reading
of a meter, and
(b) including, in particular, the provision of a service pipe or
the provision of goods or services designed or calculated to
promote the efficient use of energy,
the contract agreed by the licensee shall identify, separately,
the charges to be made for the supply of gas, for other goods
sold, for other goods provided on hire and for services, and
paragraph (5) shall have effect.
(5) In such a case -
(a) if the contract is (disregarding any provision for its
renewal) for a specified period, whether or not followed by an
indefinite period, and the aggregate annual rate of the
hypothetical charges for the other goods and services mentioned
in paragraph (4), if spread evenly over the specified period,
would exceed 100 pounds, adjusted in accordance with standard condition
36 by reference to the date on which the contract is executed
where it is executed on or after the first anniversary of the
appointed day, paragraphs (1)(a) and (3)(a) shall not apply in
relation to the contract, or, where it is a contract for a
specified period followed by an indefinite period, to the
contract so far as it relates to the specified period, or
(b) if the contract is for an indefinite period and the aggregate
annual rate of the hypothetical charges for the other goods and
services mentioned in paragraph (4), if spread evenly over the
period for which the actual charges therefor are made ("the
initial period"), would exceed 100 pounds adjusted as aforesaid,
paragraphs (1)(a) and (3) (a) shall not apply to the contract so
far as it relates to the initial period,
and, for the purposes of this paragraph, any reference to the
hypothetical charges for goods sold or provided on hire or for
services is a reference to the charges which would reasonably be
expected to be made therefor under a contract which did not also
provide for the supply of gas, and any question arising under
this paragraph as to the amount of any such hypothetical charges
shall be determined by the Director.
(6) Subject as hereinafter provided, where, in pursuance of a
contract for the supply of gas, the licensee requires a domestic
customer to make a deposit by way of security for the payment of
charges -
(a) unless, having regard to the conduct of the customer, it is
reasonable that the deposit be retained, the licensee shall repay
it if either -
(i) all demands made in writing in any period of 12 months for
payments due in respect of the supply of gas have been complied
with by the customer within 28 days after the making of the
demand, or
(ii) no such demands have been made in any period of 12 months by
reason of the customer's compliance with his contractual
obligations relating to the making of payments for gas,
and shall make such repayment within 2 months of the expiry of
the 12 month period in question;
(b) if the licensee ceases to supply gas to the customer and he
has paid all charges in respect of gas supplied to him, it shall
repay the deposit;
(c) if the licensee having held the deposit for more than a month
repays it in pursuance of sub-paragraph (a) or (b), it shall pay
the customer simple interest on the deposit at the rate which is
from time to time 1% less than the base rate of Barclays Bank PLC
or, if there is no such base rate, less than such base rate as
the Director may designate for the purposes hereof.
(7) In paragraphs (3) to (6), "agree" and "require" mean agree
and require by way of a term of the contract, and cognate
expressions shall be construed accordingly.
(8) Paragraphs (9) and (10) shall apply where one gas supplier
("the transferor"), with the agreement of another gas supplier
("the transferee" ), assigns to that other supplier its rights
and liabilities under contracts for the supply of gas to
particular domestic customers whose contracts allow of such
assignment ("an assignment" and "the transferred customers").
(9) Where this paragraph applies and the licensee is the
transferor, if it so elects paragraph (6) (b) shall not have
effect in relation to a deposit on the licensee ceasing to supply
a transferred customer by reason of an assignment but it shall
pass the deposit to the transferee, together with interest
thereon calculated as provided in paragraph (6)(c).
(10) Where this paragraph applies and the licensee is the
transferee, paragraph (6) shall have effect, in relation to any
deposit passed to it by the transferee, as if the transferee were
the same person in law as the transferor.
(11) For the purposes of paragraphs (6) to (10), any reference
to a deposit is, except where the context otherwise requires, a
reference to so much of the deposit as, from time to time, has
not been applied to meet charges in respect of the supply of gas.
(12) Notwithstanding the definition of the expression "deposit
by way of security for the payment of charges'' in standard
condition 1(1), the provisions contained in paragraphs (6) to
(11) shall not apply in relation to a payment which is not a
deposit; but, in relation to a payment of any class or
description which serves the like purpose as a deposit by way of
security for the payment of charges, paragraphs (6) to (11) shall
have effect as if they contained such provisions, if any, as are
designated by the Director, for the purposes of this condition
generally, as having, in the case of payments of that class or
description, as nearly as may be and having regard to their
nature, an effect corresponding to that of the said paragraphs in
their application in relation to deposits.
(13) If the whole or a significant part of the pipe-line system
operated by British Gas plc on the appointed day comes to be
operated by another public gas transporter ("the relevant
system") and that transporter (not being the relevant
transporter) conveys by means of the relevant system the gas that
is subsequently conveyed to particular premises by the relevant
transporter then, in relation to those premises, any reference in
paragraph (2)(b) or (c) to British Gas plc shall have effect as
if it were a reference to that other transporter; and any
question arising under this paragraph as to whether a part of the
pipe-line system operated by British Gas plc on the appointed day
is a significant part thereof shall be determined by the
Director.
(14) It shall be a sufficient compliance with paragraph (1) (a)
(iv) if terms providing for such charges as are there mentioned
provide that the number of therms or kilowatt hours is calculated
as there mentioned except -
(a) in relation to gas supplied during the period of 10 months
beginning with the appointed day or such longer period as the
Director may accept in the case of this sub-paragraph, for the
purpose of this condition generally that no adjustment is made in
respect of a temperature and pressure conversion factor within
the meaning of regulations from time to time in force under
section 12 of the Act, or
(b) in relation to gas supplied during the period of 10 months
beginning with the appointed day or such longer period as the
Director may accept in the case of this sub-paragraph, for, the
purposes of this condition generally, and without prejudice to
the application also of sub-paragraph (a), that the calorific
value of the gas is determined on a weekly basis from daily
calorific values in a manner which does not unduly discriminate
between customers and is not prejudicial to their interests, and
any question arising under this sub-paragraph as to whether that
manner satisfies those criteria shall be determined by the
Director.
(15) Where, in pursuance of paragraph (14)(a), the number of
therms or kilowatt hours of gas supplied is calculated without
any such adjustment as is there mentioned, the terms determined
under paragraph (1)(a) shall provide that, on such an adjustment
coming to be made, there shall be a consequential reduction in
the charges which would have been made for therms or kilowatt
hours of gas supplied had the adjustment continued not to be
made.
Condition 4: Deemed contracts
(1) Subject to paragraph (9) -
(a) when making or revising or considering whether or not to
revise the scheme it is required to make under paragraph 8 of
Schedule 2B to the Act ("the scheme"), or
(b) where the scheme provides that any terms in respect of the
supply of gas shall be determined in accordance with the
provisions thereof, when determining or re-determining those
terms,
the licensee shall use its reasonable endeavours to ensure that
the terms for the supply of gas in pursuance of a deemed contract
are not unduly onerous within the meaning of paragraph (2).
(2) Subject to paragraphs (3) and (9), in the case of any class
of domestic customers or of any class of non-domestic customers,
terms shall be taken to be unduly onerous if the revenue derived
from supplying gas to customers of the class in question on those
terms -
(a) significantly exceeds the costs incurred in so supplying gas,
and
(b) exceeds such costs by significantly more than the licensee's
revenue exceeds costs in the case of the generality of its
domestic customers or, as the case may be, in the case of the
generality of its non-domestic customers supplied with gas at
particular premises at a rate which is reasonably expected not to
exceed 75,000 therms a year.
(3) Paragraph (2) shall have effect as hereinafter provided,
namely -
(a) where the licensee has not elected as mentioned in sub-
paragraph (5) of paragraph 8 of Schedule 2B to the Act or where
it has withdrawn such an election and the modification of sub-
paragraph (4) by sub-paragraph (5) of the said paragraph 8 has,
in pursuance of subparagraph (6) thereof, ceased to have any
effect, paragraph (2) shall have effect as if both references to
non-domestic customers were omitted;
(b) the reference in paragraph (2)(b) to the generality of the
licensee's domestic or (subject as aforesaid) non-domestic
customers does not include a reference to customers supplied with
gas in pursuance of directions given under standard condition 5
but otherwise is a reference to customers supplied with gas in
pursuance of either a contract or a deemed contract, and
(c) in calculating for the purposes of sub-paragraph (a) or (b)
of paragraph (2) the extent to which revenue exceeds costs (in
either the case of a class of customers supplied with gas in
pursuance of a deemed contract or the case mentioned in the said
subparagraph (b)), no account shall be taken of any costs
attributable to any promotional, marketing or advertising
activities of the licensee.
(4) Where the scheme provides that any terms in respect of the
supply of gas shall be determined in accordance with the
provisions thereof and the licensee so determines or re-
determines (in whole or in part) such terms, it shall, as soon as
is reasonably practicable, send the Director -
(a) a copy of the terms so determined, or
(b) in the case of a re- determination, a notice summarising the
re-determination and, if he so requests, a copy of the terms as
they have effect following their re-determination,
and, at the request of any other person, it shall supply that
person with a copy of anything sent to the Director in pursuance
of sub-paragraph (a) or (b).
(5) The scheme and any determination or re-determination in
accordance therewith shall be such that, in the scheme's
application in a case in which gas is supplied in pursuance of
directions given under standard condition 5(1), the amount of any
charges for gas so supplied complies with the provisions of
standard condition 5(7) and (8).
(6) Where the licensee supplies a customer with gas in pursuance
of a deemed contract, it shall use its reasonable endeavours to
furnish the customer with -
(a) details of the principal terms of that deemed contract
together with written notice of his right under paragraph 8(11)
(c) of Schedule 2B to the Act to request a copy of the scheme or
of any revision thereof, and
(b) unless he is a non-domestic customer or is supplied with gas
in pursuance of directions given under standard condition 5(1),
written notice that contracts on terms other than those of his
deemed contract may be available and as to how information can be
obtained as to any such terms;
and, for the purposes of sub-paragraph (a), "principal terms"
means terms as to charges and such other terms as might affect
the reasonable evaluation of the deemed contract.
(7) Subject to any necessary modifications, standard condition 3
(1)(a)(iv), (3)(b) and (c) and (7) shall apply in relation to a
deemed contract for the supply of gas to a domestic customer as
it applies to a contract for such supply.
(8) Where a deemed contract includes such terms and conditions as
are mentioned in paragraph 8(9) of Schedule 2B to the Act, in
determining thereunder the number of therms or kilowatt hours
which are to be treated as supplied or taken, the licensee shall
act on a reasonable basis, taking into account available
consumption data for the premises in question and other relevant
factors.
(9) Paragraphs (1) to (3) shall not apply in relation to the
scheme in its application where gas is supplied in pursuance of
directions given under standard condition 5(1) or (13).
Condition 5: Last resort supply
(1) Where the Director notifies the licensee that it appears to
him that -
(a) circumstances have arisen which would entitle him to revoke
or suspend the licence of a gas supplier other than the licensee
("the other supplier") otherwise than with the agreement of the
other supplier, and
(b) the licensee could comply with the direction without
significantly prejudicing its ability -
(i) to continue to supply its customers, and
(ii) to fulfil its contractual obligations for the supply of gas,
and by notice in writing he directs the licensee to supply gas
to domestic customers in accordance with this condition, the
licensee shall, subject to paragraph (3) and standard condition
7, comply with the direction.
(2) Any direction under paragraph (1) (''the direction") shall
have effect only in the event of the revocation or suspension of
the other supplier' s licence and as from the time at which such
revocation or suspension takes effect and only for such period,
not exceeding 6 months, as is specified in the direction; and the
gas shall be supplied to domestic customers of the other supplier
at such premises as are specified or described in the direction
and which the licensee is authorised by its licence to supply.
(3) The licensee's obligations under the direction to supply gas
to a particular customer at particular premises shall not apply,
or shall cease to apply, if the licensee enters into a contract
with that customer for the supply of gas at the premises or if a
gas supplier other than the licensee supplies gas to that
customer at the premises.
(4) The licensee shall use all reasonable endeavours to secure
that a meter reading is taken within 14 days of the direction
taking effect at each of the premises at which it is required
thereby to supply gas so, however, that the licensee need not so
take a meter reading -
(a) where the Director accepts that it would not be feasible or
economic to do so, or
(b) where to do so would necessitate the entering of particular
premises without the consent of the occupier or the seeking of
entry on more than one occasion.
(5) Unless it has already done so, as soon as is reasonably
practicable after the direction has taken effect, the licensee
shall send a written notice to each of the premises specified or
described in the direction -
(a) setting out the charges to be made for gas supplied in
pursuance of the direction by virtue of the scheme made by the
licensee under paragraph 8 of Schedule 2B to the Act ("the
scheme"), and, if those charges are not set out in, but fall to
be determined in accordance with provisions of, the scheme (and,
accordingly, may vary from time to time), summarising those
provisions, and
(b) advising the customer in question that, notwithstanding any
contract he may have had with the other supplier, that supplier
is no longer supplying him with gas and has not done so since the
direction took effect or, where the notice has been sent before
the direction has taken effect, will be no longer supplying him
with gas if it takes effect.
(6) Unless, or except to the extent that, the Director consents
otherwise -
(a) within the period of 6 days beginning with the day on which
the direction takes effect or the period of 15 days beginning
with the day on which the direction was given, whichever first
expires, the licensee shall give the Director such a notice as is
described in paragraph (5)(a) together with, where the charges
fall to be determined in accordance with provisions of the
scheme, an indication of any likely changes in those charges, and
(b) so far as is reasonably practicable, the licensee shall give
the Director notice of any increase in charges to be made for gas
supplied in pursuance of the direction which is reasonably
expected or proposed and shall give such a notice at least 5 days
before the expected or proposed increase takes effect.
(7) The charges to be made from time to time by the licensee for
gas supplied to any premises in pursuance of the direction -
(a) before the licensee has taken a meter reading at those
premises, or, if earlier, the expiry of the period of 14 days
from the direction taking effect, shall be the same as those
which would be made under the deemed contract which would arise
in relation to the supply of gas at any premises by the licensee
to a domestic customer -
(i) who is in occupation of the premises;
(ii) who, on or after entering into occupation of the premises,
first takes gas otherwise than in pursuance of a contract, and
(iii) whose immediate predecessor in occupation of the premises
was a domestic customer of the licensee, supplied with gas
thereat, but has ceased to be so supplied,
where the relevant considerations were the same, in particular,
those relating to the expected rate of supply, method of paying
charges and the location of the premises, and
(b) after the licensee has taken such a meter reading or after
the expiry of that period, as the case may be -
(i) subject as hereinafter provided, shall be such that it may
reasonably be expected that the aggregate charges made for gas
supplied in pursuance of the direction will approximately equal
the licensee's reasonable costs in so supplying the gas
(including such costs attributable to the acquisition of gas at
short notice) together with a reasonable profit;
(ii) if, either at the time of the giving of the direction or
within the period of 5 days following the receipt by him of a
notice given in pursuance of paragraph (6)(a) or (b), the
Director has given the licensee a notice informing it that he is
of the opinion that charges specified or described in the notice
would be likely to result in hardship being suffered by
customers, shall not exceed those approved by him in the notice
as charges which would avoid, or mitigate, such hardship,
so, however, that the licensee shall not be required by sub-
paragraph (b) to make charges which are less than those which
would be made under such a deemed contract as is mentioned in
sub-paragraph (a).
(8) The terms as to charges and otherwise on which the licensee
supplies gas in pursuance of the direction shall not, save as may
be necessary to comply with paragraph (7)(b)(ii), be such as to
show any undue preference or any undue discrimination as between
any persons or classes of persons to whom it is so supplying gas.
(9) The licensee shall not, in connection with the direction,
make any claim in relation to the sum mentioned in standard
condition 9(5) as incorporated in the other supplier's licence
unless -
(a) the claim is made as soon as is reasonably practicable after
the relevant amount mentioned in paragraph (12) has been
determined. and
(b) the claim does not exceed the relevant amount so mentioned.
(10) For the purposes of this and the next following paragraph -
"A" means the total number of premises to which public gas
transporters convey gas for supply to domestic customers:
"B" means the total number of premises to which public gas
transporters so convey gas disregarding any premises to which gas
is conveyed by a transporter which only so conveys gas to a
number of premises which is less than O.25% of A, and
"C" means the number of premises to which the transporter in
question so conveys gas.
(11) The licensee shall not, in connection with the direction,
make any last resort payment claim for the purposes of condition
10 of the Standard Conditions of Public Gas Transporters'
Licences as incorporated in a public gas transporter's licence
unless -
(a) the number of premises to which the transporter in question
conveys gas for supply to domestic customers exceeds 0.25% of A;
(b) the claim is submitted to the transporter in question as soon
as is reasonably practicable after the relevant amount mentioned
in paragraph (12) and the sum mentioned in sub-paragraph (c) have
been determined;
(c) the relevant amount so mentioned exceeds any sum payable to
the licensee as mentioned in standard condition 9(5) as
incorporated in the other supplier's licence and
(d) the amount of the claim does not exceed the public gas
transporter's proportionate share of that excess, and, for the
purposes hereof, a transporter's proportionate share shall be
that represented by the fraction -
C
____
B
and any last resort payment claim shall specify whether payment
is to be made by quarterly or monthly instalments and,
immediately after submitting such a claim to one or more public
gas transporters, the licensee shall send a copy of each claim to
the Director.
(12) The relevant amount referred to in paragraphs (9) and (11)
is the amount notified in writing by the licensee to the
Director, within 6 months of the direction ceasing to have effect
or such longer period as the Director may approve in a particular
case, as being the amount (if any) by which -
(a) the aggregate costs (including interest on working capital)
reasonably incurred by the licensee in supplying gas in pursuance
of the direction, together with a reasonable profit, exceed
(b) the aggregate amounts recovered by the licensee by way of
charges for gas supplied in pursuance of the direction (after
taking all reasonable steps to recover such charges),
unless the Director, within three months after receiving such
notification, and such supporting information as he may
reasonably require for the purposes of this paragraph, has, after
consulting the licensee, formed the opinion that different
amounts more accurately reflect the amounts described in (a) or
(b), in which case the licensee shall comply with any direction
given by him that the relevant amount be recalculated
accordingly.
(13) Where the Director notifies the licensee that it appears to
him that the circumstances mentioned in paragraph (1)(a) have
arisen in the case of a gas supplier other than the licensee and
by notice in writing given to the licensee with its consent he
directs it to supply gas at such premises supplied by the other
supplier as may be specified or described in the direction, being
premises within the description set out in section 7A(1)(b) of
the Act (other than premises which could reasonably be expected
to be supplied with gas at a rate exceeding 75, 000 therms a
year) for such period not exceeding 6 months as may be specified
in the direction, the licensee shall comply therewith.
(14) If the licensee enters into any new contract for the
purchase of gas for the purpose of complying with any directions
under this condition, it shall use its reasonable endeavours to
purchase the gas economically, having regard to the time
available to secure the supplies.
Condition 6: Special customer payment claims
(1) This condition has effect in relation to a special customer
payment claim, within the meaning of condition 10 of the Standard
Conditions of Public Gas Transporters' Licences, which the
licensee may wish to make and the amount which it may claim.
(2) The licensee shall not make a special customer payment claim
in respect of any year before the year 1999 but on or before 1st
March in any subsequent year the licensee may give notice (a
"special customer notice") to the Director stating that, in its
opinion -
(a) during the previous year the number of premises supplied by
it (both alone and taken with its related persons ) in respect of
which the customers are domestic customers -
(i) who, subject to paragraph (12), are of pensionable age, or
disabled or chronically sick persons, or
(ii) who have defaulted or fallen into arrears in the payment of
charges for gas supplied,
in each case expressed as a proportion of the total number of
premises so supplied in respect of which the customers are
domestic customers, is an undue proportion (within the meaning of
paragraph (11));
(b) as is appropriate in the circumstances of the case -
(i) it has incurred costs in providing such services as are
mentioned in standard conditions 17 and 18 to such domestic
customers as are mentioned in sub-paragraph (a)(i), or
(ii) it is not both reasonable and practicable for it to recover
from such domestic customers as are mentioned in sub-paragraph
(a) (ii) all or part of the charges made for the supply of gas or
of the costs associated with recovering such charges
(disregarding any charges for the supply of gas by way of
interest when payment has not been made within a specified period
of written demand being made therefor), and
(c) the ability of the licensee to finance the carrying on of
activities authorised or required by this licence has, in
consequence, been materially affected,
and specifying the amount which the licensee considers is
necessary to reimburse to it the relevant proportion (within the
meaning of paragraph (13)) of such costs as are mentioned in sub-
paragraph (b) and of such charges as are so mentioned which it is
not both reasonable and practicable for the licensee to recover
from the customers in question, and which accordingly is the
amount which it wishes to recover by virtue of a special customer
payment claim.
(3) The licensee shall, as soon as is reasonably practicable
within 30 days (or such longer period as the Director may accept)
of each request, furnish the Director with all such documents and
information as the Director may in writing reasonably request
within 65 days of receiving a special customer notice to enable
him to determine whether in his opinion -
(a) the criteria set out in each sub-paragraph of paragraph (2)
are met;
(b) the amount specified in the special customer notice is not
greater than the relevant proportion of the costs referred to in
paragraph (2)(b) and of the charges so referred to which it is
not both reasonable and practicable for the licensee to recover
from the customers in question;
(c) that amount exceeds the relevant proportion of any such costs
as would have been incurred by or charges which would not have
been recovered by an efficient gas supplier in corresponding
circumstances, and
(d) that amount is not greater than the amount of the additional
receipts which would have resulted in the ability of the licensee
to finance the carrying on of activities authorised or required
by its licence not being prejudiced,
but this paragraph shall not require the licensee to produce any
documents or give any information which it could not be compelled
to produce or give in evidence in civil proceedings before the
court.
(4) The licensee shall, as soon as is reasonably practicable,
provide the Secretary of State with a copy of the special
customer notice and all documents and information with which the
Director has been furnished under paragraph (3).
(5) Where the licensee has given a special customer notice to the
Director -
(a) if the Director, after consulting the licensee and other
interested persons whom he considers it appropriate to consult
and after considering any representations made by them, is not
satisfied on the basis of the information available to him that
the criteria set out in each sub-paragraph of paragraph (2) are
met and, accordingly, considers that any such special customer
payment claim as is contemplated by the special customer notice
should not be made, he may, for the purposes of paragraph (6),
notify the licensee to that effect;
(b) if the Director, after such consultation and consideration,
within the period mentioned in paragraph (6)(a)(i) or, as the
case may be, (ii), notifies the licensee that the special
customer notice should be amended by the substitution for the
amount specified therein of such lesser amount as either -
(i) if the information available to the Director -
A. is sufficient for him to be satisfied as to the amount which
would more accurately reflect the relevant proportion of the
costs and charges referred to in paragraph (2), is the amount he
is satisfied so reflects that proportion, or
B. is not so sufficient, is the amount which such information is
sufficient to satisfy him is not greater than the amount which
would accurately reflect the relevant proportion of the costs and
charges referred to in paragraph (2), or
(ii) in his opinion, on the basis of the information available to
him, is the amount which more accurately reflects the relevant
proportion of such additional costs as would have been incurred
by or charges which would not have been recovered by an efficient
gas supplier in corresponding circumstances, or
(iii) in his opinion, on the basis of the information available
to him, is the amount which more accurately reflects the amount
of the additional receipts which would have resulted in the
ability of the licensee to finance the carrying on of activities
authorised or required by its licence not being prejudiced,
the special customer notice shall be amended accordingly, and
(c) if the Secretary of State after consulting the licensee and
other interested persons whom he considers it appropriate to
consult and after considering any representations made by them
notifies the licensee that no such special customer payment claim
as is contemplated by the special customer notice should be made
by the licensee, he may, for the purposes of paragraph (6),
notify the licensee to that effect.
(6) The licensee may, and may only, make such a special customer
payment claim as is contemplated by the special customer notice
if he is not notified that such a claim should not be made -
(a) by the Director under paragraph (5)(a) -
(i) where he has requested document or information under
paragraph (3), within the period of 35 days following the day on
which he was furnished with, or with the last of, the documents
or information so requested, or
(ii) where he has not so requested documents or information,
within the period of 130 days following the day on which he
received the special customer notice, or
(b) by the Secretary of State under paragraph (5)(c) -
(i) where the Director has requested documents or information
under paragraph (3), within the period of 50 days following the
day mentioned in sub-paragraph (a)(i) above, or
(ii) where the Director has not so requested documents or
information, within the period of 145 days following the day
mentioned in sub-paragraph (a)(ii) above.
(7) For the purposes of this and the next following paragraph -
"A" means the total number of premises to which public gas
transporters convey gas for supply to domestic customers;
"B" means the total number of premises to which public gas
transporters so convey gas disregarding any premises to which gas
is conveyed by a transporter which only so conveys gas to a
number of premises which is less than 0.25% of A;
"C" means the number of premises to which a public gas
transporter to which a special customer payment claim is
addressed so conveys gas;
"proportionate share", in relation to such a public gas
transporter, means the share represented by the fraction
C
____
B
and
"notional interest", in relation to a specified amount, means the
simple interest on that amount over a period of 21 months
calculated at the rate which is the average base rate of Barclays
Bank PLC over the year ending with 30th June in which the special
customer notice was given or, if there is no such rate, such base
rate as the Director may designate for the purposes hereof.
(8) A special customer payment claim authorised by paragraph (6)
shall not be addressed to a public gas transporter unless -
(a) the number of premises to which that transporter conveys gas
for supply to domestic customers exceeds 0.25% of A, and
(b) the amount of the claim does not exceed that transporter's
proportionate share of the amount specified in the special
customer notice, or, as the case may be, in that notice as
amended in accordance with paragraph (5)(b), together with
notional interest thereon.
(9) A special customer payment claim authorised by paragraph (6)
shall specify whether payment is to be made by quarterly or
monthly instalments.
(10) Immediately after submitting a special customer payment
claim to a public gas transporter, the licensee shall send copies
of the claim to the Secretary of State and to the Director.
(11) Except in paragraph (7), in this condition, any reference
to a year is a reference to a calendar year and, in relation to
such premises as are mentioned in paragraph (2)(a)(i) or (ii) -
(a) any reference to the normal proportion is a reference to the
proportion represented by the fraction:
D
____
E
and
(b) any reference to an undue proportion is a reference to a
proportion in excess of the normal proportion,
where -
"D" means the total number of premises at which gas is supplied
by the licensee or other gas suppliers to such domestic customers
as are mentioned in paragraph (2)(a)(i) or, as the case may be,
paragraph (2) (a) (ii), and
"E" means the total number of premises at which gas is so
supplied to domestic customers (whether or not they are such
customers as are mentioned in paragraph (2) (a) ) .
(12) In this condition any reference to domestic customers who
are of pensionable age, or disabled or chronically sick persons
is, in relation to the licensee or any other gas supplier, a
reference to persons who are so identified in such a list as is
mentioned in standard condition 17(2)(a) which is kept by the
licensee or, as the case may be, another gas supplier.
(13) In this condition, "relevant proportion", in relation to
such costs and charges as are mentioned in paragraph (2)(b)
(which, in the case of paragraph (2) (b) (ii), it is not both
reasonable and practicable for the licensee to recover from the
customers in question), means -
(a) if the licensee has no related persons supplying gas to
domestic customers, that proportion thereof which is attributable
to the licensee supplying more than a normal proportion of such
premises as are mentioned in paragraph (2) (a) (i) or, as the
case may be, paragraph (2) (a) (ii), or
(b) if the licensee has related persons supplying gas to domestic
customers, and one or more of these is not supplying an undue
proportion of such premises as are mentioned in paragraph
(2)(a)(i) or, as the case may be, paragraph (2) (a) (ii), the
proportion determined in accordance with sub-paragraph (a)
adjusted in a manner calculated to avoid over-recovery by the
group as a whole (that is to say, the licensee and all such
related persons) and approved for the purposes hereof by the
Director.
Condition 7: General provisions supplementary to standard
conditions 2 and 5 and in respect of supplier transfers
(1) If and so long as the circumstances are such as are
mentioned in paragraph (2), the licensee shall not be required -
(2) by standard condition 2, to supply gas, continue to supply
gas, or to offer a customer a new contract for the supply of gas,
or
(b) by standard condition 5, to supply gas at premises.
(2) The circumstances referred to in paragraph (1) are -
(a) that the premises in question have been disconnected by the
relevant transporter, or the supply of gas thereto has been cut
off by a gas supplier and, by reason of paragraph 19 of Schedule
2B to the Act, the transporter or supplier is not under any
obligation to re-connect the premises or, as the case may be,
resume the supply of gas to the premises;
(b) ones beyond the licensee's control which prevent it from
complying with the requirement in question but this shall not
relieve the licensee from the obligation to take all requisite
steps, so far as is reasonably practicable, to secure the
necessary supplies of gas and their conveyance to the premises of
domestic customers or persons who might reasonably be expected to
become such customers;
(c) ones in which compliance with the requirement in question
would, or might, involve danger to the public and the licensee
has taken all such steps as it was reasonable to take both to
prevent the circumstances from occurring and to prevent them from
having that effect;
(d) subject to standard condition 3(3)(b) and (c), and except
where the licensee is required to supply gas by standard
condition 5, that the licensee has requested a deposit by way of
security for the payment of charges and the customer concerned
has not paid this, or
(e) in relation to the obligation set out in standard condition
2(1)(a) the discharge of which would require the implementation
of a proposed supplier transfer in relation to any premises, that
the gas shipper which had made arrangements in pursuance of which
gas was then conveyed to the premises has, without breach of the
conditions of its licence, prevented the implementation of that
transfer
(3) The licensee shall not be required by standard condition 2 to
supply gas to a person at premises in respect of which it is not,
at the time the request is made, a relevant supplier if and so
long as to do so would significantly prejudice its ability to
continue to supply gas to domestic customers at premises where it
already does so, but the licensee shall -
(a) take all such steps as are reasonable to avoid such a
situation arising, and to resolve any that does arise, and
(b) inform the Director in writing, as soon as is reasonably
practicable, of any such situation that does arise, and of when
it has been resolved.
(4) The licensee shall not procure or permit the relevant
shipper, in pursuance of any contract with that shipper, or
otherwise request it, to prevent a proposed supplier transfer in
relation to any premises at which the licensee supplies gas to a
customer except for so long as -
(a) the customer fails to pay charges for the supply of gas to
those premises or any premises previously owned or
occupied by him in respect of which such charges are payable
which -
(i) are due to the licensee and have been demanded in writing,
and
(ii) have remained unpaid for 28 days after the making of the
demand, or
(b) the customer is bound by the provisions of a contract with
the licensee for the supply of gas at those premises which will
neither expire nor, to the knowledge of the licensee, be
terminated on or before the date of the proposed transfer.
(5) Subject to paragraph (10), paragraph (6) shall apply where -
(a) the licensee has commenced the supply of gas to a domestic
customer at any premises at which gas was previously last
supplied to such a customer by another gas supplier ("the first
supplier");
(b) any person has failed to pay, within 28 days of the making of
a demand in writing therefor, charges due to the first supplier
in respect of the previous supply of gas at those or any other
premises, other than charges which, before the time when the
first supplier became aware of the proposed supplier transfer or
the time of the implementation of that proposed transfer,
whichever is the earlier -
(i) had become due to the first supplier;
(ii) had been demanded in writing, and
(iii) had remained unpaid for not less than 28 days after the
making of the demand,
("excepted charges") save that if at, or within 14 days of, that
time it reasonably appeared to the first supplier that payment
had been made of particular charges for the supply of gas but
they had, in fact, not been paid (for example, where a cheque
tendered in payment was subsequently dishonoured), those charges
shall not be excepted charges for the purposes of this sub-
paragraph; and the charges first mentioned in this sub-paragraph,
other than excepted charges, are hereinafter referred to as "the
charges in question";
(c) that person has been notified by the first supplier, at least
14 days before it gives to the licensee such a notice as is
mentioned in paragraph (6), that it proposes to assign the debt
to the licensee and that, if he has a contract or deemed contract
with the licensee which so provides, the licensee may be entitled
to recover from him costs in respect of the recovery of the debt,
and
(d) that person either is supplied with gas by the licensee at
the premises referred to in sub-paragraph (a) or is in occupation
of those premises on the date on which the licensee receives such
a notice as is mentioned in paragraph (6).
(6) Where this paragraph applies, if, within 90 days of the
licensee commencing to supply gas to the premises, the licensee
receives written notice from the first supplier stating -
(a) the amount of the charges in question which remains unpaid;
(b) that the first supplier had used its reasonable endeavours to
recover the amount of the charges in question which still
remained unpaid 40 days after the demand therefor was made, and
(c) that the first supplier intends to assign the debt
attributable to the unpaid charges to the licensee,
the licensee shall, in consideration of such assignment and
within 60 days thereof, pay to the first supplier the amount of
such debt less (unless those costs are recoverable as mentioned
in paragraph (5)(c)) the licensee's reasonable administrative
costs likely to arise in recovering the debt from the consumer,
except that this obligation shall be limited to an amount not
greater than one third of that of the charges -
(i) in respect of the amount of gas supplied to the premises in
question (by the first supplier or some other gas supplier) in
the year ending with the day on which the first supplier ceased
to supply gas at those premises, or
(ii) if that amount is not known, in respect of the amount of gas
reasonably expected to be supplied to the premises in question in
the year beginning with the day on which the licensee commenced
to supply gas thereat,
calculated, in either case, on the basis on which the first
supplier calculated charges in the customer's case immediately
before it ceased to supply gas to the premises.
(7) For the purposes of paragraph (6), a consumer shall not be
regarded as having failed to pay any charges for the supply of
gas as at a particular date to the extent that any amount
demanded by the first supplier is genuinely in dispute and the
dispute does not relate to the amount of gas which was shown on
the register of the gas meter through which the supply was taken
when the first supplier ceased to supply gas to the premises.
(8) In this condition, "proposed supplier transfer" in relation
to any premises means the proposed implementation of arrangements
whereunder gas would no longer fall to be supplied to premises by
one supplier but would fall to be supplied to those premises by
another supplier (whether or not the supplier other than the
licensee is licensed under section 7A(1) of the Act).
(9) In paragraphs (5) and (6), references to charges for the
supply of gas, however expressed, do not include references to
charges made in respect of the provision of a gas meter.
(10) Where, having regard to any representations made to him, it
appears to the Director that, in relation to any particular class
or description of cases -
(a) the application of paragraph (6), or the possibility of its
coming to apply, does not significantly reduce the number of
unrecovered debts which might otherwise be expected, or
(b) the application of paragraph (6) and the recovery, or
attempted recovery, of assigned debts involves expenditure by the
gas suppliers concerned which is disproportionate to the
reduction in the aggregate amount of unrecovered debts which
might otherwise be expected,
he may provide that paragraph (6) shall, subject to paragraph
(11), cease to have effect in relation to that class or
description of cases: and any such provision shall be made by a
notice which -
(i) is given and published for the purposes of this condition
generally, and
(ii) specifies the date on which the provision is to take effect.
(11) Notwithstanding that the Director has, in pursuance of
paragraph (10), provided that paragraph (6) should cease to have
effect in relation to a particular class or description of cases,
he may, having regard to any representations made to him, provide
that paragraph (6) shall again have effect in relation thereto if
it appears to him that the view he took as respects the matters
mentioned in sub-paragraphs (a) and (b) of paragraph (10) is no
longer justified; and any such provision shall be made by a
notice which -
(a) is given and published for the purposes of this condition
generally at least 3 months before the date specified for the
purposes of sub-paragraph (b), and
(b) specifies the date on which the provision is to take effect
and, accordingly, on which paragraph (6) is again to have effect
in relation to the class or description of cases in question.
Condition 8: Acceptance of meters and metering arrangements and
inspection of meters
(1) Subject to paragraph (2), the licensee shall not be required
by standard condition 2 to supply or continue to supply gas to a
person, or to offer a new contract except on terms that, if the
person takes his supply through a meter which belongs to him or
is lent or hired to him otherwise than by the licensee or by the
relevant transporter or if the meter is ordinarily to be read in
accordance with arrangements made otherwise than by the licensee,
the meter or the arrangements in question are acceptable to the
licensee.
(2) From such date no earlier than 1 April 1999, as may be
designated in writing for the purposes of this condition
generally by the Director following such trials and consultation
as he considers appropriate ("the metering liberalisation date"
), the licensee shall not, in the case of a domestic customer -
(a) refuse to accept a meter the use of which does not contravene
section 17 of the Act and which is appropriate for registering
the quantity of gas supplied, except on the ground that -
(i) the licensee requires the supply to be taken through a
prepayment meter and the meter is not one of that type or, if it
is, its calibration or the arrangements for dealing with pre-
payments are not acceptable to the licensee, or
(ii) the meter does not offer the facilities requisite for the
purposes of the contract or having regard to its terms. or
(b) refuse to accept arrangements made by the customer for the
ordinary reading of the meter which comply with such
requirements, designed to secure the accurate reading of the
meter and prompt transmission of data in an appropriate form, as
may be set out in such document or variation thereof ( "the
metering code" ) as may be designated in writing, for the
purposes of this condition generally, by the Director following
consultation with gas suppliers, gas shippers, public gas
transporters and such other persons as the Director considers
appropriate.
(3) This and the following paragraphs shall apply when the
licensee receives a written request ("the request") made by a
customer (whether a domestic or non-domestic customer) that it
should agree that such an inspection as is referred to in
standard condition 23(2) ("an inspection") be carried out by a
named person chosen by the customer ("the agent") and, in such a
case, the licensee shall -
(a) as soon as is reasonably practicable, give the relevant
shipper a copy of the request together with any relevant
information relating to the agent which is in the licensee's
possession for transmission to the relevant transporter, and
(b) refrain from agreeing to the request during the period of 15
days beginning with the day on which it complied with
sub-paragraph (a).
(4) The licensee shall not agree to the request -
(a) unless there are reasonable grounds for believing that
(i) the agent possesses the appropriate expertise, and
(ii) he would accurately and efficiently carry out the tasks
specified in standard condition 23(2), or
(b) subject to paragraph (5), if the licensee has been notified
by the relevant shipper, within the period of 8 days beginning
with the day on which the shipper received a copy of the request,
that the relevant transporter is of the opinion that there are
not reasonable grounds for so believing
(5) If the licensee is notified as mentioned in paragraph (4) but
disagrees with the relevant transporter's opinion, it shall refer
the question whether there are reasonable grounds for believing
that the criteria in sub-paragraph (a) of that paragraph are met
to the Director for determination and -
(a) if, within 14 days of the question being referred to him, the
Director notifies the licensee that he does not accept the
transporter's opinion, that opinion shall be disregarded for the
purposes of paragraph (4), or
(b) in any other case, the transporter's opinion shall be
conclusive for the purposes of paragraph (4).
(6) After the metering liberalisation date, the licensee shall,
subject to paragraphs (4) and (5), agree to the request if it has
reasonable cause to be satisfied that the agent would comply with
the metering code.
(7) Notwithstanding that the licensee has agreed to the request
it may withdraw its agreement if, in relation to an inspection,
the circumstances are such as are mentioned in standard condition
23 (5) (a), (b) or (c).
Condition 9: Security for payments where last resort directions
are given
(1) The licensee shall, if licensed to supply domestic customers
- -
(a) take out and maintain a bond or other instrument approved by
the Director as providing adequate security of payment, or
(b) make and maintain arrangements so approved,
under which, in the event of the Director giving directions to
one or more other gas suppliers under standard condition 5(1) as
incorporated in those suppliers' licences to supply the
licensee's domestic customers, there shall be payable, to such
person as the Director may appoint ("the trustee"), such sums, or
instalments of sums, as the trustee may (after consulting the
Director) request, at such times as the trustee may so request,
not exceeding, in the aggregate, a maximum sum determined in
accordance with paragraph (7), without prejudice, however to
paragraphs (3) and (4), and any such bond, other instrument or
arrangements (in this condition referred to as "a security")
shall be one which is not subject to termination or variation
(otherwise than by way of an extension of the period for which it
is in force or an increase in the maximum sum payable thereunder)
without the consent of the Director; and any reference in this
condition to the taking out of a security includes a reference to
the making of arrangements.
(2) If the Director notifies the licensee in writing that he
considers that a security previously approved by him for the
purposes of paragraph (1) no longer provides adequate security of
payment, then, with effect from the day on which the notice is
given, or such later date as is specified in the notice, that
security shall be treated as failing to satisfy the requirements
of paragraph (1) and, accordingly, the licensee shall be under a
renewed obligation thereunder to take out a security.
(3) Except in so far as the Director otherwise accepts, a
security for the purposes of paragraph (1) shall be so expressed
that if -
(a) in accordance with the terms thereof it would otherwise cease
to have effect (whether at the end of a calendar year or
otherwise), or
(b) at a time at which it is in force, it ceases, or is treated
by paragraph (2) as ceasing, to satisfy the requirements of
paragraph (1),
the security will subsist until the licensee takes out a new
security which satisfies the requirements of paragraph (1) or, if
earlier, the expiry of a period of not less than 6 months
specified in the security beginning with the date on which it
would otherwise have ceased to have effect or, as the case may
be, on which it ceased, or was treated as having ceased, to
satisfy those requirements.
(4) Where a security subsists as mentioned in paragraph (3) -
(a) its subsistence shall be disregarded for the purposes of
paragraph (1) and, accordingly, the licensee shall be under an
obligation thereunder to take out a security, and
(b) the sum payable under the security shall be in accordance
with the terms thereof notwithstanding that that sum may be less
than the maximum sum determined in accordance with paragraph (7).
(5) The trustee shall hold any sum paid to him under a security,
together with any income derived therefrom (net of any tax he is
required to pay on such income), upon trust (after deduction and
retention by the trustee of his reasonable remuneration and
expenses as determined by or under his instrument of appointment)
- -
(a) to apply the same in meeting any claim made by a gas supplier
to which such directions as are mentioned in paragraph (1) were
given and which satisfies the criteria in standard condition 5(9)
and (12) as incorporated in that supplier's licence, and
(b) subject as aforesaid, for the person by whom the sum was
paid;
and any question arising under sub-paragraph (a) as to whether
the criteria there mentioned are satisfied shall be determined by
the Director.
(6) If the directions were given to more than one gas supplier
and the sum available is insufficient to meet all the claims,
each payment shall be reduced proportionately.
(7) The maximum sum referred to in paragraph (1) shall be
determined for each calendar year and shall be the aggregate of -
(a) the product of the number, in that year, of premises expected
to be supplied and such sum, in respect of each premises, not
exceeding, subject to paragraph (8), 4 pounds, as may have been
approved by the Director -
(i) for that year, and
(ii) for the Purposes of this condition generally,
and have been so approved, for the year 1996, not later than 28
days after the appointed day or, for any subsequent year, not
later than 30th September in the previous year, and
(b) the product of the amount of gas expected to be supplied,
expressed in therms or kilowatt hours, and such sum per therm or
per kilowatt hour, as the case may be, not exceeding, subject to
paragraph (8), 1.5p per therm or 0.0511821p per kilowatt hour, as
may have been approved by the Director as aforesaid,
so, however, that if the Director fails to approve, for the
purposes of sub-paragraph (a) or (b) and as therein mentioned, an
amount for any year subsequent to 1996, this paragraph shall have
effect as if he had approved, for that year, the amount last so
approved by him for a previous year.
(8) In the application of paragraph (7) to the determination of
the maximum sum for the year 1998 or any subsequent year, each of
the maximum amounts specified in sub-paragraphs (a) and (b)
thereof shall be adjusted in accordance with standard condition
36 by reference to the anniversary of the appointed day in the
previous year.
(9) The licensee shall notify the Director of its estimates of
the number of premises expected to be supplied and of the amount
of gas expected to be supplied in any calendar year and furnish
him with such information as provides a reasonable justification
of the estimates and shall do so -
(a) not later than 31st October in the previous year, or
(b) where it was not licensed to supply gas to domestic customers
on that date and has not done so before being so licensed, as
soon as may be after it first became so licensed after that date.
(10) In paragraphs (7) and (9) -
"premises expected to be supplied" means the average number of
premises at which domestic customers are reasonably expected by
the licensee to be supplied by it with gas in the year in
question other than such excepted premises as are mentioned
below;
"amount of gas expected to be supplied" means the amount of gas
reasonably expected by the licensee to be supplied by it to
domestic customers in the year in question otherwise than at such
excepted premises as are mentioned below;
and the excepted premises referred to above are premises in
relation to which subsection (2) of section 6 of the Gas Act 1995
does not for the time being apply by reason only of provisions
contained in subsections (3), (4) and (5) thereof
(11) Standard condition 1(9) shall not apply in relation to
paragraph (7)(b) but, in relation to any time after 31st December
1999, paragraph (7) (b) shall have effect with the omission of
the words "in therms or", "per therm or", "as the case may be"
and "1. 5p per therm or".
Section 10: Methods of payment for charges for gas
(1) Except where the licensee requires that the supply of gas be
taken through a pre-payment meter, it shall afford to a domestic
customer using gas for domestic purposes the opportunity to pay
charges in respect of the supply of gas in a variety of ways
including, in particular -
(a) by cash at such places or to such persons as the licensee may
reasonably determine;
(b) by cheque, and
(c) by postal order,
and if the licensee requests a deposit by way of security for the
payment of charges as a condition of making a supply of gas
available to the customer, but the customer is unwilling or
unable to pay it, the licensee shall agree to his taking his
supply of gas through a pre-payment meter if that is safe and
practical.
(2) In the case of the supply of gas under a contract, otherwise
than through a pre-payment meter, the licensee shall afford to a
domestic customer using gas for domestic purposes a reasonable
choice of terms as to the frequency of payments in respect of the
supply of gas including, in particular -
(a) the making (in a reasonable manner specified by the licensee)
of monthly payments of a predetermined amount to be applied in
meeting charges for gas supplied as and when they become due, and
(b) one of the following, namely -
(i) the settling quarterly of a quarterly bill for gas supplied;
(ii) the settling monthly of a monthly bill for gas supplied, and
(iii) the settling quarterly of such monthly bills,
unless, having regard to the special circumstances of a
particular case, the Director permits otherwise.
(3) The terms determined by the licensee under standard
condition 3(1) shall include terms in respect of all the ways of
making payments mentioned in paragraph (1), in respect of the
frequency mentioned in paragraph (2)(a) and in respect of one of
the frequencies mentioned in paragraph (2)(b).
(4) The terms contained in the licensee's scheme under paragraph
8 of Schedule 2B to the Act, in its application where gas is not
supplied in pursuance of directions given under standard
condition 5, shall include terms in respect of all the ways of
making payments mentioned in paragraph (1) and in respect of one
of the frequencies mentioned in paragraph (2)(b).
Condition 11: Termination of contracts and deemed contracts
(1) The licensee shall not enter into a contract for the supply
of gas to any domestic customer at any premises unless -
(a) if it is a contract for a specified period, whether or not
followed by an indefinite period, it provides that the customer
may terminate it at any time during the specified period if -
(i) he gives 28 days' notice of termination or such lesser period
of notice as the licensee may accept in the circumstances, and
(ii) unless the specified period exceeds 12 months and he gives
such notice within 7 days of the date on which the contract was
executed, he pays the licensee such termination fee, if any, as,
subject to paragraph (6), it may reasonably require in the
particular circumstances,
so, however, that no such notice as is mentioned in sub-paragraph
(i) shall be considered to have been effectively given unless and
until any such payment as is mentioned in sub-paragraph (ii) is
made;
(b) if it is a contract for an indefinite period or for a
specified period followed by an indefinite period, it provides
that the customer may terminate it at any time during the
indefinite period with effect from -
(i) the time when a new contract for the supply of gas to the
premises, between the customer or any other person and the
licensee or any other gas supplier, comes into effect, or
(ii) the time when the customer's premises are disconnected or
the supply of gas thereto is cut off in consequence of the
customer ceasing to require such a supply,
if he gives 28 days' notice, or such lesser period as the
licensee may accept in the circumstances, of termination or
(where that is at the time mentioned in sub-paragraph (ii)) of
his ceasing to require a supply of gas at the premises;
(c) whether or not the contract is for a specified period, it
provides, where the customer intends to cease, or ceases, to own
or occupy the premises -
(i) that the customer may terminate it with effect from his
ceasing to either own or occupy the premises, subject to his
giving 48 hours notice of termination or such lesser period of
notice as the licensee may accept in the circumstances, and
(ii) if the customer does not give such notice, and if it is not
agreed between the licensee, the customer and some other person
that the contract should continue to have effect with the
substitution of that other person for the customer as a party
thereto, that the contract should terminate and he should cease
to be liable to pay for any supply of gas to the premises after
whichever of the following first occurs, namely -
A. the 28th day after he gives notice to the licensee that he
has ceased to either own or occupy the premises,
B. the time at which the register of the meter is next read
after he has ceased to either own or occupy the premises either
by the licensee or by a gas supplier who is, or is about to
become, a relevant supplier, and
C. the time from which gas is supplied to the premises, by
the licensee or another gas
supplier, in pursuance of a request made by a person other than
the customer,
and, without prejudice as aforesaid, that the customer shall not
be liable to pay any charges for gas supplied which are paid by
his successor, or another person, owning or in occupation of the
premises;
(d) whether or not the contract is for a specified period, but
except in such cases or classes of cases as may be approved by
the Director, if the contract provides that the charges or other
terms are capable of variation at the discretion of the licensee,
it provides that where the charges are raised, or other terms
varied to the significant disadvantage of the customer -
(i) the licensee shall take reasonable steps to give, no later
than 10 days after the variation coming into effect in his case,
that customer a notice giving details of the variation in
question and of the customer's right to terminate the contract:
(ii) the customer may, within 14 days of receiving the notice,
give 21 days' notice terminating the contract, and
(iii) if the customer does so, the change shall not be effective
for the interim period, and
(e) whether or not the contract is for a specified period, it
provides that it shall terminate upon a direction given to a gas
supplier other than the licensee, in pursuance of standard
condition 5 of that supplier's licence, coming into effect in
relation to the premises in question.
(2) Nothing in this condition shall be construed as preventing
the licensee from entering into a contract which contains
provisions for its termination which are additional to, and do
not derogate from, those required by paragraph (1).
(3) In relation to a contract which is not only in respect of the
supply of gas but also in respect of the provision of other goods
or services relating to the supply or use of gas -
(a) excluding the provision of a meter, of any device or
facilities designated by the Director for the purposes hereof as
serving the like purposes as a pre-payment meter or of pre-
payment facilities and excluding any related services or services
in respect of the reading of a meter, and
(b) including, in particular, the provision of a service pipe or
the provision of goods or services designed or calculated to
promote the efficient use of energy,
paragraph (1) shall apply as if any reference therein to a right
to terminate the contract were a reference to a right -
(i) to terminate the contract only to the extent to which it is
not in respect of the sale of such other goods, and
(ii) which is only exercisable if the customer satisfies the
licensee, by giving such security as the licensee may reasonably
require or otherwise, that he will comply with the terms of the
contract to the extent to which it is in respect of the sale of
such other goods
and as if sub-paragraphs (c)(ii) and (e) thereof related to the
contract only to the extent to which the contract is not in
respect of the sale of such other goods.
(4) The terms contained in the licensee's scheme under paragraph
8 of Schedule 2B to the Act, so far as they relate to the
termination of a deemed contract -
(a) shall make the like provision as is required in the case of a
contract by paragraphs (i)(c) and (e) (subject to the omission
from sub-paragraph (1) (c) (ii) of the words "and if it is not
agreed between the licensee, the customer and some other person
that the contract should continue to have effect with the
substitution of that other person for the customer as a party
thereto"), and
(b) shall provide that where the customer intends to be supplied
with gas at the premises in pursuance of a contract with the
licensee, or in pursuance of a request made of another gas
supplier, the deemed contract does not (except in the
circumstances mentioned in paragraph (1)(e)) terminate but
continues to have effect until the time when the licensee or, as
the case may be, the other gas supplier begins to supply gas as
aforesaid, at which time the deemed contract ceases to have
effect,
but nothing in this paragraph shall be construed as preventing
the inclusion of terms providing for the termination of a deemed
contract which are additional to, and do not derogate from, those
required hereby, without prejudice, however, to paragraph (5)
where that paragraph applies.
(5) Notwithstanding anything in this condition, the terms
contained in the licensee's scheme under paragraph 8 of Schedule
2B to the Act, in its application where gas is supplied in
pursuance of directions given under standard condition 5, may
provide that, so long as those directions have effect, the
customer may not terminate his deemed contract except -
(a) with the agreement of the licensee;
(b) on taking a supply of gas at the premises in question from
another gas supplier, or
(c) on ceasing to take a supply of gas at the premises.
(6) The licensee may not require a termination fee as mentioned
in paragraph (1)(a) if the specified period exceeds 12 months but
the contract does not include, or was not accompanied by, a
notice prominently displayed, designed to draw the customer's
attention to the right to give notice of termination within 7
days of the contract being executed, without payment of such a
termination fee.
(7) Paragraph (8) shall apply where, having regard to any
representations made to him, it appears to the Director that the
requirements of paragraph (1) (a) are -
(a) unduly onerous for gas suppliers, or
(b) unduly restrictive as respects the choice of termination
provisions which may be offered to potential customers,
in relation to any particular class or description of cases
where the specified period, whether or not followed by an
indefinite period, does not exceed 12 months.
(8) Where this paragraph applies and after consulting the Gas
Consumers' Council and such other persons as he considers
appropriate, the Director may, but not before 1st January 1998,
by such a notice as is mentioned in paragraph (9), modify
paragraph (1)(a) so as to secure that, in relation to that class
or description of cases, it provides that the licensee shall not
enter into a contract for the supply of gas to any domestic
customer at any premises unless it provides either that the
customer may terminate it as there mentioned or that the customer
may terminate it (without paying any termination fee) on giving,
within 7 days of the date on which the contract was executed, 28
days notice of termination, or such lesser period of notice as
the licensee may accept.
(9) The notice referred to in paragraph (8) is one which -
(a) is given and published by the Director for the purposes of
this condition generally, and
(b) specifies the modifications and the date on which they are to
take effect.
Condition 12: Adjustment of charges where meter has registered
erroneously
(1) Where paragraph 4 of Schedule 2B to the Act applies (that is
to say, where a consumer is supplied with gas through a meter at
a rate not exceeding, subject to section 8A of the Act, 75,000
therms a year), this condition shall apply if the meter is
examined and found to register erroneously as mentioned in
sub-paragraph (3) of that paragraph.
(2) Where the error found is one of over registration, the
charges made by the licensee in respect of gas supplied through
the meter before it was found to register erroneously shall be
adjusted by reference to the extent to which the meter is deemed
by the said sub-paragraph (3) to have registered erroneously;
and, accordingly, allowance shall be made to the customer by the
licensee.
(3) Where the error found is one of under registration, the
licensee shall not surcharge the customer in respect of gas
supplied through the meter before it was found to register
erroneously otherwise than by reference to the extent to which
the meter is deemed by the said sub-paragraph (3) to have
registered erroneously.
Condition 13: Undue discrimination and undue preference
( 1 ) Subject to paragraphs ( 2 ), (3), ( 7 ) and (9) to ( 14 ),
if the licensee, taken with its related persons operating in the
same market, is in a dominant position in a market for the supply
of gas to customers at premises, then the licensee, in the terms
on which it supplies or offers to supply gas to customers in that
market -
(a) shall not show undue preference to any person or class of
persons, and
(b) shall not exercise any undue discrimination against any
person or class of persons,
and shall not set charges for the supply of gas to customers at
premises -
(c) in any market or markets in which it has a dominant position,
which are unduly onerous, or
(d) in any market or markets, which are predatory.
(2) Paragraph (1) shall not prevent the licensee from supplying
or offering to supply gas to all of, or any class of, the
customers in an area on terms which are reasonably necessary to
meet established competition in relation to such customers,
provided that the licensee -
(a) does not set terms in respect of the customers in question
which:
(i) are predatory, or
(ii) show undue preference or unduly discriminate as between any
such customers, and
(b) does not set terms in respect of the supply of gas at
premises to consumers of any other class, or in any other area,
in relation to whom the licensee has a dominant position, which
are unduly onerous.
(3) For the purposes of paragraphs (1) and (2) -
(a) terms shall be taken to be predatory if, but only if -
(i) charges in accordance with those terms would not cover such
avoidable costs as they ought reasonably to cover, and
(ii) the terms are made available for the purposes of, or are
likely to have the effect of, unfairly excluding or limiting
competition between the licensee and one or more other gas
suppliers;
(b) terms in respect of consumers shall be taken to be unduly
onerous if the revenue from the supply of those consumers on
those terms -
(i) significantly exceeds costs in respect of that supply, and
(ii) exceeds such costs by significantly more than in the case of
the supply of the generality of customers supplied with gas at
premises by the licensee save for those in any market which is by
virtue of paragraph (8) considered to be a separate market,
but, unless the converse is manifestly the case, terms shall not
be taken to be unduly onerous if other gas suppliers licensed to
supply gas to customers at the premises in question are only
willing to do so on more onerous terms, having regard to the
costs of market entry they have incurred or would thereby incur.
(4) In determining which customers constitute a class for the
purposes of paragraph (2), due regard shall be had to all the
circumstances of supply (including, in particular, volumes, load
factors, conditions of interruptibility, location of premises
being supplied, date, duration and terms of agreement).
(5) Any question arising -
(a) under paragraph (1), as to whether the licensee, taken with
its related persons operating in the same market, is in a
dominant position in a market;
(b) under paragraph (2)(b) as to whether the licensee is in a
dominant position in relation to consumers of any class other
than that first mentioned in paragraph (2) or in any area other
than that so mentioned, or
(c) under paragraph (3)(a)(i), as to which avoidable costs ought
reasonably to be covered by charges,
shall be determined by the Director, after considering any
representations made to him.
(6) In the preceding paragraphs -
"area" means the whole of Great Britain or, in relation to the
application of this condition to the supply of gas to domestic
customers, either the whole of Great Britain or an area forming a
part of Great Britain and containing no less than 100,000
premises at which gas is supplied to such customers;
"avoidable costs" means those costs which would not be incurred
by the licensee if it did not supply the customers in question,
including such costs arising in the future calculated having due
regard to the timing thereof;
"terms" means all the terms on which a supply of gas is provided
or offered, whether as respects charges, methods of payment or
otherwise.
(7) Nothing in this condition shall apply to the supply of gas
under a deemed contract.
(8) For the purpose of this condition, any market for the supply
of gas to domestic customers shall be considered to be a separate
market from any market for the supply of gas to non-domestic
customers.
(9) This condition shall not apply to a pricing policy of the
licensee if such policy is treated by paragraph (10) as being in
the public interest.
(10) A pricing policy shall be treated as being in the public
interest if -
(a) the licensee delivers to the Director a written request
("public interest request") made in accordance with paragraph
(11) in relation thereto and the Director agrees in writing to
that request; or
(b) the application of this condition to the pricing policy has
been terminated by paragraph (12) or (13) by virtue of a notice
given for the purposes thereof by the licensee.
(11) Any public interest request shall be in writing and be
addressed to the Director and it shall contain a statement of the
licensee's pricing policy and state the date ("disapplication
date") from which the licensee wishes the Director to agree that
this condition shall cease to have effect in relation to the
pricing policy, but the disapplication date therein stated shall
not be before whichever is the later of 1st April 1999 and any
date which is less than 9 months after the date upon which the
public interest request is delivered to the Director.
(12) If the Director has not made a reference to the Monopolies
Commission under section 24(1) of the Act relating to the pricing
policy specified in the public interest request before the
beginning of the period of 6 months which will end with the
disapplication date, the licensee may by written notice given to
the Director claim that the application of this condition to the
pricing policy should terminate with effect from the
disapplication date or such later date as is specified in the
notice, not being more than 3 months after the date thereof; and
where such a notice is given this condition shall cease to apply
as claimed in the notice.
(13) If the Monopolies Commission makes a report, on a reference
made by the Director relating to the pricing policy specified in
the public interest request, after the request and such report
does not include a conclusion that the licensee's pricing policy
operates, or may be expected to operate, against the public
interest the licensee may within 30 days after the receipt of the
report by the Director give him written notice claiming that the
application of this condition to the pricing policy should
terminate with effect from the disapplication date or such later
date as is specified in the notice, not being more than 3 months
after the date thereof; and where such a notice is given this
condition shall cease to apply as claimed in the notice.
(14) In this condition, "pricing policy" means the principles
governing the licensee's terms of supply to all domestic
customers in such an area, within the meaning of paragraph (6),
as may be specified by the licensee in its public interest
request.
Condition 14: Terms for supply of gas incompatible with standard
conditions
(1) The licensee shall not enter into any arrangements for the
supply of gas to premises on terms which are incompatible with
its obligations under any of these standard conditions.
(2) The licensee shall not enforce or take advantage of any term
of a contract or deemed contract for the supply of gas if -
(a) the inclusion of that term was incompatible with its
obligations under any of these standard conditions, or
(b) the enforcement or the taking advantage of that term would be
so incompatible.
(3) The licensee shall not take advantage of the omission of any
term from a contract or deemed contract for the supply of gas if
that term was required to be included in the contract or deemed
contract in question by reason of these standard conditions.
PART III
SOCIAL OBLIGATIONS
Condition 15: Arrangements in respect of social obligations
(1) The licensee shall, if licensed to supply domestic customers
- -
(a) unless it has done so before being so licensed, on first
being so licensed, submit to the Director a statement of its
proposed arrangements for the purposes of satisfying standard
conditions 16 to 19;
(b) where before the expiry of 30 days after submitting such a
statement or, if later, of the licensee first being so licensed,
the Director notifies the licensee that, in his opinion, the
proposed arrangements are not sufficient for the purposes of
satisfying the said standard conditions, forthwith make such
changes in the arrangements as are requisite for those purposes
and are specified in directions given by the Director, and
(c) on the expiry of the said period of 30 days or, if earlier,
on being notified by the Director that he does not intend to give
directions under sub-paragraph (b), make such arrangements in the
terms originally proposed or, as the case may be, in those terms
as changed in pursuance of directions given by the Director.
(2) In the case of an extension of this licence, the licensee
shall ensure that the arrangements remain sufficient for the
purposes of satisfying standard conditions 16 to 19 and shall
make, subject to paragraph (3), any necessary changes.
(3) Except in the case of changes reasonably consequential upon
an extension or a restriction of this licence which are made with
effect from the effective date of the extension or restriction,
the licensee shall not make any material change in the
arrangements except with the approval of the Director.
(4) The arrangements made in pursuance of paragraph (1) (in the
standard conditions there mentioned referred to as ''the
arrangements") shall be set out in one or more documents
(together with any other arrangements which the licensee
considers it appropriate to set out therein) and the licensee
shall, in respect of each such document or revision thereof -
(a) take such steps as reasonably appear to it appropriate to
draw its existence and the matters which it covers to the
attention of persons who appear to it to have a reasonable
interest therein;
(b) on the request of any person, make a copy available to him
free of charge, and
(c) send a copy to the Gas Consumers' Council.
(5) The licensee shall use its best endeavours to ensure, so far
as is reasonably practicable, that it conducts itself towards its
domestic customers (whether supplied with gas in pursuance of a
contract or a deemed contract) in conformity with the said
arrangements.
Condition 16: Advice on efficient use of gas
The arrangements shall provide for the provision, at the request
of any of the licensee's domestic customers, of advice on the
efficient use of gas given or prepared by a suitably qualified
person and, in particular, advice as respects -
(a) the restriction of heat losses from existing buildings;
(b) the selection of gas heating systems or controls for such
systems for use in either existing or new buildings;
(c) the operation of gas heating systems in either existing or
new buildings which is best calculated to make an efficient use
of gas;
(d) the efficient use of gas supplied to a domestic customer but
used for the purposes of trade or business;
(e) organisations which may provide further advice, training or
other services in connection with the efficient use of gas, and
(f) sources of possible financial assistance in meeting the cost
of works calculated to improve the efficient use of gas in
existing dwellings.
Condition 17: Services for pensioners or disabled or chronically
sick persons
(1) The arrangements shall provide, in relation to any domestic
customer of the licensee who is of pensionable age ("a
pensioner"), or is a disabled or chronically sick person, on
request and without charge -
(a) except in the case of a customer living with another person
who is neither a pensioner nor a disabled or chronically sick
person nor under 18 years of age, for the examination by a person
possessing appropriate expertise at intervals of not less than 12
months of the safety of gas appliances and other gas fittings on
the customer's side of the meter at his premises, other than a
fitting for the annual inspection of which a landlord of the
customer is responsible in pursuance of regulations made under
the Health and Safety at Work etc. Act 1974;
(b) so far as is reasonably practicable and appropriate -
(i) for the provision of special controls or adaptors, from a
range of such controls or adaptors, for prepayment meters owned
by the licensee or the relevant transporter and for gas
appliances,
(ii) for the repositioning, to meet the needs of the customer,
occasioned by his physical condition arising from his age,
disability or chronic sickness, of any gas meter owned by the
licensee, and
(iii) for the transmission through the relevant shipper to the
relevant transporter of any request by the customer for the
relevant transporter to reposition any gas meter it owns to meet
such needs (and for the relevant shipper being reimbursed by the
licensee any payments made by it in respect of any reasonable
expenses incurred by the relevant transporter in complying with
the request);
(c) for affording to the customer special means by which he may
confirm the identity or authority of one of the licensee's
officers (within the meaning of section 48(1) of the Act)
authorised for the purposes of any provision of Schedule 2B to
the Act;
(d) for the provision of advice, given or prepared by a person
possessing appropriate expertise, relating to the use of gas, gas
appliances and other gas fittings;
(e) for bills in respect of the supply of gas to the customer to
be sent to a person who, for the time being, is nominated by him
and is willing to be sent such bills, without prejudice, however,
to the right of the licensee to send them to the customer as well
where that appears appropriate to the licensee, and
(f) where neither the customer nor any person living with him is
able to read the gas meter and it is ordinarily read in
accordance with arrangements made by the licensee, for the meter
to be read once in each quarter and, without prejudice to
standard condition 26(2), for the customer to be told what those
readings are.
(2) The arrangements shall provide -
(a) for the keeping by the licensee of a list of its domestic
customers who are pensioners or disabled or chronically sick
persons and who request to be included in the list:
(b) for the list to contain appropriate information provided by
the customer which facilitates the identification of his special
needs;
(c) for notifying its domestic customers once each year that that
list is kept and how those who are pensioners or disabled or
chronically sick persons may apply for inclusion therein, and
(d) for the licensee to secure that the relevant transporter is
provided with the information in the list in an appropriate form
and at appropriate intervals.
Condition 18: Facilities for blind and deaf persons
The arrangements shall provide for the provision, on request and
free of charge, in relation to the licensee's domestic customers
who, to the knowledge or reasonable belief of the licensee -
(a) are blind or partially sighted, by telephone or other
appropriate means -
(i) of the meter readings and charges in respect of the supply of
gas as set out in any bill, and
(ii) of the arrangements for making enquiries or complaints about
bills or the services provided by the licensee,
(b) are deaf or partially hearing, of facilities to assist them
(if they have the equipment enabling them to take advantage
thereof) when making enquiries or complaints about bills or the
services provided by the licensee.
Condition 19: Steps to be taken where charges for gas are unpaid
(1) The arrangements shall, in relation to any of the licensee's
domestic customers who, through misfortune or inability to budget
to meet bills for gas supplied on credit terms, incurs
obligations to pay for gas so supplied for use for domestic
purposes which he finds difficulty in discharging, provide for -
(a) distinguishing, so far as is reasonably practicable, such a
customer from others in default;
(b) providing general information as to how such a customer might
reduce his charges in the future by the more efficient use of
gas;
(c) in relation to a domestic customer in whose case facilities
have been made available for sums to be deducted from any social
security benefit payable to him (on account of his liability to
pay charges for gas supplied to him by the licensee), for the
acceptance of such sums in discharge of any such liability;
(d) offering an arrangement for the customer to discharge his
debt by instalments, and making such instalment arrangements
taking into account information available to the licensee as to
the customer's ability to pay (including any such information
made available by other persons or organisations ), and
(e) offering a prepayment meter where such a meter is safe and
practical, including a prepayment meter calibrated so as to
recover any debts in addition to the charges for gas as it is
used, taking into account information available to the licensee
as to the customer's ability to pay (including any such
information made available by other persons or organisations).
(2) In the case of a domestic customer to whom paragraph (1)
applies, the licensee shall not cut off the supply of gas at such
a customer's premises for non-payment of charges otherwise than
following compliance by the licensee with the arrangements
mentioned in that paragraph.
(3) Paragraph (1)(e) shall have effect as if the references
therein to a prepayment meter included references to any device
or facilities, serving the like purposes as a prepayment meter,
which are designated for the purposes hereof by the Director and
shall have effect as respects such a device or facilities with
such modifications (if any) as, having regard to their nature,
are necessary and are so designated.
Condition 20: Pensioners not to have supply of gas cut off in
winter
(1) This condition shall apply in the case of any of the
licensee's domestic customers who, to the knowledge or reasonable
belief of the licensee -
(a) is of pensionable age and lives alone or with other persons
all of whom are also of pensionable age or under 18 years of age;
(b) is supplied with gas which is used for domestic purposes, and
(c) is in default of his obligation to pay for gas so supplied
through misfortune or inability to budget to meet bills for gas
supplied on credit terms.
(2) Notwithstanding that sub-paragraph (3) of paragraph 7 of
Schedule 2B to the Act (including that sub-paragraph as extended
by sub-paragraph (4) thereof) applies by virtue of sub-paragraph
(1) of the said paragraph 7, the licensee shall not thereunder
cut off the supply of gas to such a customer's premises during
any winter period, that is to say, a period beginning with 1st
October in any year and ending with 31st March in the next
following year.
Condition 21: Record of and report on performance
(1) The licensee shall keep a record of its general operation of
the arrangements mentioned in standard conditions 16 to 19 and
compliance with standard conditions 19(2) and 20 and, if the
Director so directs in writing, of its operation of standard
conditions 19(2) and 20 in particular cases specified, or of a
description specified, by him. The licensee shall also keep a
statistical record of its performance in relation to the
provision of gas supply services to domestic customers and
potential domestic customers, including services related to -
(a) the giving of, and the continuation of the giving of,
supplies of gas;
(b) the ascertainment of amounts of gas supplied and the recovery
of gas charges, and
(c) the making of visits to customers' premises and the response
made to enquiries.
(2) As soon as is reasonably practicable after the end of each
calendar year, the licensee shall submit to the Director and to
the Gas consumers' Council a report dealing with the matters
mentioned in paragraph (1) in relation to that year and shall -
(a) publish the report so submitted in such manner as will in the
reasonable opinion of the licensee secure adequate publicity for
it, and
(b) send a copy of it free of charge to any person requesting
one,
except that, in performing its obligations under sub-paragraphs
(a) and (b), the licensee shall exclude from the report such
information as appears to it to be necessary or expedient to
ensure that, save where they consent, individual customers
referred to therein cannot readily be identified.
(3) The report shall be presented, so far as is reasonably
practicable, in a standard format designated by the Director for
the purposes of this standard condition generally.
PART IV
MISCELLANEOUS
Condition 22: Supply and connection of gas meters
(1) The licensee shall, if so requested by one of its domestic
customers or a person who has agreed to become such a customer,
arrange for the provision to that customer of a meter owned by it
or the relevant transporter which is of an appropriate type for
registering the quantity of gas supplied to him by -
(a) arranging with the relevant transporter for the meter owned
by it and installed in the premises to remain in place;.
(b) arranging with the owner of the meter installed in the
premises to purchase or otherwise acquire that meter and for it
to remain in place;
(c) arranging for the installation of a meter where there is no
meter in place, or the meter in place is inappropriate or cannot
be purchased or acquired on reasonable terms, or
(d) making such other arrangements for the provision of a meter
as may be agreed between the licensee and the customer.
(2) Where the licensee is obliged under paragraph (1) to arrange
for the provision of a meter to a customer, it shall not require,
as a condition of making such an arrangement as is mentioned in
subparagraph (1)(a), (b) or (c), that the customer takes the
meter otherwise than on hire or loan.
(3) Where a customer of the licensee hands over to it a meter
which is owned by the relevant transporter, the licensee shall so
inform that transporter, through the relevant shipper, and hold
the meter to the transporter's order for a period of one month in
the condition in which it was received and with the index
unaltered.
(4) Where a domestic customer terminates a contract or deemed
contract with the licensee for the supply of gas, the licensee
shall not -
(a) exercise any right to recover any meter owned by the licensee
at, or by reason of, the termination of such contract, or
(b) authorise any of its officers to enter the customer's
premises for the purpose of removing any such meter (whether
under paragraph 26 of Schedule 2B to the Act or otherwise),
if another supplier undertakes prior to the date of such
termination to make an arrangement with the licensee of the type
contemplated in paragraph (1)(b) on terms that the licensee
receives such compensation (if any) as may be appropriate having
regard to the value of the meter.
(5) Where -
(a) in pursuance of arrangements made by the licensee, any meter
is connected with a service pipe through which gas is conveyed to
premises in relation to which the licensee is, or is about to
become, a relevant supplier and the person making the connection
is not an approved person, or
(b) the licensee receives -
(i) such a notice of a proposed connection as is mentioned in
sub-paragraph (1) of paragraph 12 of Schedule 2B to the Act,
whether or not it is followed by such information as is mentioned
in sub-paragraph (3) of that paragraph, or
(ii) a copy of such a notice or of any such information which has
been received by the relevant transporter, and it is not stated
in the notice or information that the connection will be, or has
been, made by an approved person.
the licensee shall use its reasonable endeavours to secure that,
within the required period mentioned in paragraph (6)(b), an
approved person inspects the connection and, if he finds it
unsatisfactory, carries out any appropriate remedial work.
(6) For the purposes of paragraph ( 5 ) -
(a) "approved person" means -
(i) a person approved by the Director as possessing expertise
satisfactorily to connect a meter and so ensure that the gas
supplied through it is duly registered ("the requisite
expertise") or a person of a class or description of persons so
approved;
(ii) an undertaking approved by the Director as having staff
possessing the requisite expertise, or
(iii) without prejudice as aforesaid, until the expiry of the
period of 9 months beginning with the appointed day, an officer
of the relevant transporter possessing the requisite expertise or
the relevant transporter,
and, for the purposes of this definition, "approved by the
Director" means approved by him for the purposes of this
condition generally and "staff" includes officers, servants and
agents, and
(b) the reference to the required period is a reference -
(i) in relation to premises of a domestic customer, the period of
90 days, and
(ii) in relation to premises of a non-domestic customer, the
period of 30 days,
beginning with the day following that on which the connection was
made as mentioned in paragraph (5)(a) or, as the case may be,
with the day following that specified in the notice or
information (or copy thereof) mentioned in paragraph (5)(b) as
that on which the connection would be, or was, made.
Condition 23: Inspection and testing of meters
(1) The licensee shall use all reasonable endeavours (including,
in particular, the seeking of a warrant under the Rights of Entry
(Gas and Electricity Boards) Act 1954(f) where it is necessary to
do so) to ensure that at intervals of not more than 2 years
(which shall be deemed to expire on a date specified in a notice
given by the relevant transporter which has been transmitted to
the licensee by the relevant shipper, no less than 4 months in
advance, in any case where a gas supplier has supplied premises
for less than 2 years) an inspection of the meter and associated
installation shall take place in accordance with paragraph (2).
(2) An inspection under paragraph (1) shall be carried out by a
person possessing appropriate expertise and shall include the
following tasks -
(a) reading the meter;
(b) inspecting the meter and associated installation for evidence
of tampering;
(c) inspecting the meter and that installation for any evidence
that the meter has not continuously been in position for the
purpose of registering the quantity of gas supplied;
(d) arranging for information in respect of any gas leakage
identified in the vicinity of the meter to be passed on in
accordance with paragraph 20(5) of Schedule 2B to the Act as if
the licensee had been informed thereof:
(e) inspecting the meter for any evidence of deterioration which
might affect its due functioning or safety, and
(f) where necessary and subject to the consent of the owner of
the meter, changing any batteries in the meter.
(3) Nothing in paragraph (2)(a) to (e) shall require the
disassembling of any part of the meter.
(4) Where, in compliance with paragraphs (3) to (6) of standard
condition 8, the licensee has agreed (and has not withdrawn its
agreement in pursuance of paragraph (7) of that condition) that a
named person chosen by the customer (" the agent") should carry
out such an inspection as is referred to in paragraph (2), has
been informed that the agent has carried out the inspection, and
has received a report from the agent in respect of the casks
mentioned in paragraph (2), both in respect of what was done and
what was found, then, subject to paragraph (5), that shall be a
sufficient compliance with paragraph (1).
(5) Where the licensee has so agreed, (and has not so withdrawn
its agreement) that, of itself, shall not constitute a sufficient
compliance with paragraph (1) if -
(a) the licensee has not been informed that the inspection has
been carried out by the time by which it fell to be carried out
or, where the licensee has expressly requested the agent to carry
it out, within 28 days of that request;
(b) the licensee has not received from the agent such a report as
is mentioned in paragraph (4) within a reasonable time after the
inspection was carried out or, where the licensee has made such
an express request as is mentioned in sub-paragraph (a), within
35 days of that request, or
(c) the licensee has reason to doubt the accuracy either of any
information it has received that the inspection has been carried
out or of any such report as is mentioned in paragraph (4),
but in any such circumstances paragraph (1) shall have effect as
if the interval there mentioned expired 2 months later than the
date on which it in fact expired (or was deemed thereby to have
expired) and, accordingly, it shall be a sufficient compliance
with paragraph (1) if, before the expiry of the extended
interval, either the relevant circumstances are remedied or the
licensee ensures that the requisite inspection takes place in
accordance with paragraph (2).
(6) The licensee shall comply with a request made by any of its
customers for the removal of the meter by which the quantity of
gas supplied to that customer is registered for the purpose of
its being examined by a meter examiner in accordance with section
17 of the Act.
(7) Where, for a continuous period beginning with the appointed
day, the relevant transporter does not record separately -
(a) inspections of meters and associated installations in
accordance with paragraph (2), and
(b) meter readings made by authorised officers of the licensee,
then, without prejudice to its duty under paragraph (1), if that
transporter has secured that the licensee be so informed, it
shall, for that period, ensure that such an inspection of a meter
and associated installation takes place on each occasion on which
the meter is read by one of its authorised officers.
Condition 24: Arrangements in respect of powers of entry
(1) The licensee shall, if licensed to supply domestic customers
- -
(a) unless it has done so before being so licensed, on first
being so licensed, submit to the Director a statement of its
proposed arrangements in respect of the steps mentioned in
standard condition 25(1);
(b) where before the expiry of 30 days after submitting such a
statement or if later, of the licensee first being so licensed,
the Director notifies the licensee that, in his opinion, the
proposed arrangements are not sufficient for the purposes of
satisfying that standard condition, forthwith make such changes
in the arrangements as are requisite for those purposes and are
specified in directions given by the Director, and
(c) on the expiry of the said period of 30 days or, if earlier on
being notified by the Director that he does not intend to give
directions under sub-paragraph (b), make such arrangements in the
term originally proposed or, as the case may be, in those terms
as changed in pursuance of directions given by the Director.
(2) In the case of an extension of this licence, the licensee
shall ensure that the arrangements remain sufficient for the
purposes of satisfying standard condition 25, and shall make,
subject to paragraph (3), any necessary changes.
(3) Except in the case of changes reasonably consequential upon
an extension or a restriction of this licence which are made with
effect from the effective date of the extension or restriction,
the licensee shall not make any material change in the
arrangements except with the approval of the Director.
(4) The licensee shall use its best endeavours to ensure, so far
as is reasonably practicable, that it conducts itself in
conformity with the arrangements towards its customers who are
either -
(a) domestic customers, or
(b) non-domestic customers who, to its knowledge or reasonable
belief, use the gas supplied to them for domestic purposes.
(5) Where the licensee has not made arrangements in pursuance of
paragraph (1), it shall, as respects such of its non-domestic
customers as are mentioned in paragraph (4)(b), take all such
steps as are mentioned in standard condition 25(1) as are
applicable.
Condition 25: Authorisation of officers
(1) The arrangements referred to in standard condition 24 shall
provide for the taking of all reasonable steps -
(a) for the purpose of securing compliance with paragraph 28(1)
of Schedule 2B to the Act;
(b) for the purpose of securing that any officer authorised for
the purpose of any provision or Schedule 2B to the Act possesses
appropriate expertise to perform the particular tasks that he
will be required to undertake under the provision in question;
(c) for securing that a member of the public may readily confirm
the identity or authority of an officer so authorised;
(d) for securing that identity cards, uniforms, liveried vehicle
and other things carried, worn or used by an officer 80
authorised which confirm or suggest that he may be such an
officer are not misused, and
(e) for accusing that all officers authorised by the licensee
comply with the provisions of the Right of Entry (Gas and
Electricity Boards) Act 1954.
(2) If, in respect of any premises any officer authorised for
the purpose of any provision of Schedule 28 to the Act is an
officer or servant of an agent of the licensee, or if the
licensee is notified by the relevant transporters or shipper that
any officer so authorised by that transporter or shipper is an
officer or servant of an agent thereof, the licensee shall take
reasonable steps to inform and keep informed each of its
customers in respect of those premises, naming the agent in
question, and shall give that information in a verifiable and
authoritative manner.
(3) It shall be a sufficient compliance with paragraph (2) for
the information to be given on or with a bill in respect of the
supply of gas to the premises in question which is rendered
within 4 months of the appointment of an agent being made or
varied by the licensee or, as the case may be, within 4 months of
the licensee being notified of such as: appointment or variation
by the relevant transporter or shipper.
Condition 26: Information to be given to customers etc.
(1) The licensee shall keep each of its customers informed -
(a) that an escape, or suspected escape, of gas should be
reported immediately, and
(b) of a telephone number which should be used for that purpose.
(2) The licensee shall keep each of its customers informed as to
the quantity or amount of gas shown in its records -
(a) as having been registered by the meter through which the
customer is supplied with gas, or
(b) as having been estimated to have been supplied to the
customer where a bill based on such an estimate has been rendered
to him.
(3) The licensee shall keep each of its customers informed of
the name and address of the relevant transporter and, if that
transporter has assigned reference numbers or codes for
identifying particular points at which gas conveyed to premises
is metered and the relevant shipper has informed the licensee of
the number or code in relation to a point where the licensee is
(or is about to be) a relevant supplier in relation to the
premises, the licensee shall inform the customer concerned of the
number or code.
(4) The licensee shall keep each of its domestic customers
informed -
(a) that the Gas Consumers' Council can provide assistance in
resolving complaints which the licensee has not resolved to the
customer's satisfaction, and
(b) how the relevant office of the Gas Consumers' Council can be
contacted,
by giving that information on, or with, each bill rendered in
respect of the supply of gas to such customers.
(5) It shall be a sufficient compliance with paragraph (1), (2)
or (3) if the information required by the paragraph in question
is given on or with each bill which is rendered in respect of the
supply of gas to a customer.
(6) The licensee shall inform the customer of the most recent
meter reading or of the telephone number referred to in paragraph
(1)(b) if so requested.
(7) Where a bill rendered in respect of the supply of gas to a
customer is expressed in terms of the amount of gas supplied, the
licensee shall inform the customer in writing -
(a) of the basis on which that amount is calculated from the
quantity of gas supplied, and
(b) if in making that calculation adjustments are made in
respect of a temperature and pressure conversion factor within
the meaning of regulations from time to time in force under
section 12 of the Act, particulars of any such adjustments,
by giving such information on or with each such bill.
(8) Where a domestic customer takes a supply of gas at any
premises through a pre-payment meter, the licensee shall keep the
occupier of those premises informed that, if there is a loss of
supply of gas which he believes may result from difficulties in
operating, the malfunctioning of, or a defect in, the meter and
there is no escape, or suspected escape, of gas -
(a) he should notify a person whose name and address is given,
and
(b) he may, for that purpose, use a telephone number which is
given.
(9) Paragraph (10) shall have effect if, and only if, for the
purposes of this condition generally, the Director
(a) has designated a code of good practice for undertakings
(including gas suppliers, gas shippers and public gas
transporters) the business of which includes the reading of gas
meters and for persons engaged in reading gas meters ("the
code"), and
(b) has directed that the said paragraph should have
effect.
(10) The licensee shall, at the request of any person inform him
- -
(a) whether it has notified the Director that it intends to
comply with the code and to require any undertaking which acts as
its agent in connection with the reading of gas meters ("a
relevant undertaking") so to comply;
(b) if it has so notified the Director and he has made any
comments in respect of the licensee's, or a relevant
undertaking's, compliance with the code, of the nature of those
comments;
(c) whether all its officers engaged in the reading of gas
meters at its customers' premises (other than those who are
officers or servants of a relevant undertaking) are instructed to
comply with the code, and
(d) whether it has required any relevant undertaking to so
instruct all the officers and servants of the undertaking so
engaged.
Condition 27: Exercise of powers of entry
(1) As respects the powers of entry conferred on its authorised
officers by Schedule 2B to the Act, the licensee shall use its
reasonable endeavours to avoid undue disturbance to owners or
occupiers of premises as a result of visits being made to their
premises by authorised officer of different licence holders
exercising powers of entry for like purposes.
(2) Subject to paragraph (3), in relation to the premises of a
domestic customer, the licensee shall not, in connection with the
supply of gas to the premises, by contract acquire for any of its
officers powers of entry enjoyed by the authorised officers under
Schedule 2B to the Act or act in any manner calculated to suggest
that any of its officers have such powers.
(3) Paragraph (2) shall not apply -
(a) in the case of a contract which relates exclusively, or to
the extent to which it relates, to the provision of a gas meter
or other gas fitting of which the licensee remains the owner, or
(b) so far as the Director so consents in cases, or
descriptions of cases, specified by him.
(4) Any question arising under paragraph (2) as to whether a
power of entry is in connection with the supply of gas shall be
determined by the Director.
Condition 28: Exchange of information between licenses and
relevant transporter or shipper
(1) Subject to paragraphs (3) to (5), the licensee shall provide
information reasonably requested by a relevant transporter either
- -
(a) for the purpose of enabling the transporter to fulfil its
licence obligations to draw up plans for the safe operation,
development or maintenance of its pipe-line system, or
(b) for the purpose of preventing or detecting the taking of a
supply of gas where -
(i) paragraph ( 1 ) of condition 24 of the Standard Conditions of
Public Gas Transporters' Licences (gas illegally taken), as
incorporated in the transporter's licence, would apply or
applies, or
(ii) paragraph (4) of that condition would apply or applies by
virtue of paragraph (3) thereof.
(2) Subject to paragraphs (3) and (4), the licenses shall also
notify the relevant transporter, in such form and manner as it
may reasonably require, of the particulars (including, so far as
is reasonably practicable, a reasonable estimate of the volume
or, failing that, of the amount of gas taken) of any case of
which the licensee has become aware of the actual or suspected
taking of a supply of gas as mentioned in paragraph (1) (b) where
the gas had been conveyed to premises to which the licensee
supplies gas or was in the course of being so conveyed through a
service pipe by which any such premises are connected to a
relevant main.
(3) The licensee shall be entitled to refuse to provide an item
of information on the grounds that its disclosure would seriously
and prejudicially affect the commercial interests of the licensee
unless and until the Director, by notice in writing given to the
licensee, directs it to provide that item of information on the
ground that the provision thereof is necessary for any of the
purposes mentioned in paragraph (1).
(4) This condition shall not require the licensee to produce any
documents or give any information which it could not be compelled
to produce or to give in evidence in civil proceeding before the
court.
(5) Paragraph (1) (a) shall not apply in respect of any public
gas transporter which has not established, whether in pursuance
of a licence condition or otherwise, effective arrangements
designed to secure that information provided in pursuance thereof
is not communicated, directly or indirectly, to another gas
supplier or any gas shipper.
(6) Where the licensee receives, in connection with a proposed
connection or disconnection of a meter, such a notice as is
mentioned in sub-paragraph (1) of paragraph 12 of Schedule 2B to
the Act or receives information in pursuance of sub-paragraph (3)
of that paragraph, it shall promptly give the relevant shipper a
copy thereof and furnish it with any further information relating
to the meter which is requested by that shipper and which the
licensee either has or may readily obtain.
(7) Where the licensee intends to connect, or has connected any
meter with a service pipe through which gas is conveyed to any
premises by a public gas transporter or intends to disconnect, or
has disconnected any meter from any such pipe, it shall give to
the relevant shipper the like notice and information as would, by
paragraph 12 of Schedule 2B to the Act, have been required to be
given to the licensee or the relevant transporter had the
connection or disconnection been by a person other than the
licensee, and the licensee shall give such notice and information
at the like times.
(8) The licensee shall promptly furnish the relevant shipper
with such information as it may from time to time obtain as to
the quantities or amounts of gas conveyed to premises to which it
supplies gas.
(9) The licensee shall promptly furnish the relevant shipper,
for transmission to the relevant transporter, with particulars of
each inspection of a gas meter in pursuance of standard condition
23, including the date on which the inspection was carried out,
the reading of the register of the meter and what, if anything,
was found.
(10) Where, in pursuance of a request for the purposes of
paragraph (3) of condition 17 of the standard Conditions of
Public Gas Transporters' Licences, as incorporated in a public
gas transporter's licence, that transporter has, by virtue of
sub-paragraph (b) or (c) of that paragraph, furnished the
licensee with a copy of a part of, or information contained in,
the record of meter point numbers kept by the transporter in
pursuance of the said condition 17, the licensee shall restrict
the use or disclosure it makes of the copy or information
furnished in such manner, and to such extent, as may be
designated for the purposes of this condition generally by the
Director so, however, that such designation may make different
provision in relation to copies of part of the record or
information furnished by different public gas transporters.
Condition 29: Provision of information to Gas Consumers' Council
(1) The licensee shall, within 3 months after becoming
authorised by its licence to supply gas to domestic customers,
give to the Gas Consumers' Council details of its arrangement for
liaising with the Council in relation to the handling of cases in
which the Council is exercising the functions assigned to it by
section 32 of the Act and shall give the Council details of any
significant change in any such arrangements, not later than the
time of the implementation of the change.
(2) The licensee shall furnish to the Gas Consumers' Council, at
such times as the Council may reasonably require, such
information on matters which are the subject of a representation
to it or are referred to it by the Director under section 32(3)
of the Act as the Council may reasonably request for the purposes
of exercising the functions assigned to it by section 32 of the
Act.
(3) This condition shall not require the licensee to produce any
documents or give any information which it could not be compelled
to produce or give in evidence in civil proceedings before the
court.
Condition 30: Provision of information to the Director
(1) Subject to paragraphs (2) and (3), the licensee shall
furnish to the Director, in such manner and at such manner as the
Director may reasonably require, such information as he may
reasonably require or as may be necessary for the purpose of
performing the functions assigned to him by or under the Act.
(2) This condition shall not apply in respect of any function of
the Director under section 23 (1) (a), 34 or 35 of the Act, but
the licensee shall, if requested by the Director, give reasoned
comments on the accuracy (so far as it relates to its activities
as a gas supplier) of any information or advice which the
Director proposes to publish in pursuance of section 35 of the
Act.
(3) This condition shall not require the licensee to produce any
documents or give any information which it could not be compelled
to produce or give in evidence in civil proceedings before the
court.
(4) Where, under any other condition of this licence, the
licensee is or can be required to provide information to the
Director, there shall be a presumption that the provision of that
information in accordance with that condition is sufficient for
the relevant purposes of that condition, but that presumption
shall be rebutted, and shall not limit the right of the Director
to call for further information under paragraph (1), if he states
in writing that in his opinion such information is, or is likely
to be, necessary to enable him to exercise functions under the
condition in question.
Condition 31: Obligations as respects emergencies etc. and
security of supply
(1) Paragraph (2) of this condition shall apply -
(a) in the case of an escape, or suspected escape, of gas, or
(b) in the case of a pipe-line system emergency, that is to say,
where the circumstances are such that, in the opinion of the
relevant transporter -
(i) the safety of its pipe-line system is significantly at risk;
(ii) the safe conveyance of gas by that system is significantly
at risk, or
(iii) gas conveyed by that system is at such a pressure, or of
such a quality, as to constitute, when supplied to premises, a
danger to life or property,
and that opinion is not manifestly unreasonable.
(2) Where this paragraph applies, the licensee shall use its best
endeavours to comply with all requests made by the relevant
transporter (save any which are manifestly unreasonable) for the
purpose of, as may be appropriate -
(a) averting or reducing danger to life or property or
(b) securing the safety of the pipe-line system or the safe
conveyance of gas thereby or reducing the risk thereto.
(3) The licensee shall include in its contracts for the supply of
gas to non-domestic customers, a term to the effect that, for the
duration of a pipe-line system emergency, within the meaning of
paragraph (1) (b) -
(a) the licensee is entitled at the request of the relevant
transporter or shipper to discontinue the supply of gas to the
premises, and
(b) the customer shall use his best endeavours to refrain from
using gas immediately upon being told by the licensee or relevant
transporter that he should do so.
(4) The licensee shall include in its contracts for the supply
of gas to customers, whether or not domestic customers, a term to
the effect that, if it is given a direction under section 2(1)(b)
of the Energy Act 1976(g) prohibiting or restricting the supply of
gas to specified persons, then, for so long as the direction is
in force and so far as is necessary or expedient for the purposes
of, or in connection with, the direction -
(a) the licensee is entitled to discontinue or restrict the
supply of gas to the customer, and
(b) the customer shall refrain from using, or restrict his use,
of gas, on being told by the licensee that he should do so.
(5) The terms contained in the licensee's scheme under paragraph
3 of Schedule 2B to the Act -
(a) in its application in relation to the supply of gas to
non-domestic customers, shall include such a term as is mentioned
in paragraph (3), and
(b) in its application in relation to the supply of gas to any
customer, whether or not a domestic customer, shall include such
a term as is mentioned in paragraph (4).
(6) Where the licensee has a contract with the relevant shipper
which wan executed before 2nd March 1995 and it is empowered
thereby to book capacity for the conveyance of gas by the
relevant transporter's pipe-line system, it shall exercise that
power, except in so far as the Director consents otherwise, in
conformity with security standards.
(7) In paragraph (6), "security standards", in relation to the
booking of capacity for the conveyance of gas by the relevant
transporter, means, subject to paragraph (11), booking of
capacity at a level appropriate to enable there to be met a rate
of off-takes by the relevant shipper at premises supplied with
gas by the licensee from that transporter's pipe-line system
which would equal the peak aggregate daily demand for gas by the
licensee's. current
customers -
(a) which might reasonably be expected if the licensee
interrupted, or reduced, the supply of gas to each customer to
the extent that (otherwise than in the circumstances mentioned in
paragraph (3) or (4)) it was entitled so to do under its contract
or deemed contract with that customer, and
(b) which, having regard to historical weather data derived from
at least the previous 50 years and other relevant factors, is
likely to be exceeded (whether on one or more days) only in 1
year out of 20 years.
(8) Where the relevant shipper pays over to the licensee a sum
received by it from the relevant transporter by reason of the
failure of the transporter to convey gas to a domestic customer's
premises, the licensee shall -
(a) set-off that sum against any charges in respect of the supply
of gas to those premises which are or may become due to be paid
by the customer, or
(b) use its reasonable endeavours to pay that sum (go far as not
set off against charges) to the customer.
(9) Unless, by means of its contracts with gas shippers or
otherwise, the licensee secures that all gas conveyed by public
gas transporters for supply to its domestic customers is conveyed
in conformity with those transporters' network codes, it shall
take such steps as are necessary or expedient to secure that the
domestic supply security standards are satisfied as respects the
availability of gas to its domestic customers.
(10) In paragraph (9), "the domestic supply security standards"
means, subject to paragraph (11) -
(a) the availability of a supply of gas which would equal the
peak aggregate daily demand for gas by the licensee's current
domestic customers which, having regard to historical weather
data derived from at least the previous 50 years and other
relevant factors, is likely to be exceeded (whether on one or
more days) only in 1 year out of 20 years, and
(b) the availability of supplies of gas -
(i) over a year which would equal the aggregate annual demand for
gas by those customers, and
(ii) over the first 6 months of a year which would equal the
aggregate demand for gas by those customers during such a 6 month
period,
which, in each case, having regard to such data as aforesaid and
other relevant factors, is likely to be exceeded only in 1 year
out of 50 years.
(11) For the purposes of paragraphs (7) and (10), "daily" means
over a period beginning at 6 a.m. on one day and ending
immediately before 6 a.m. on the following day and "year" means a
period of 12 months beginning with 1st October; and if, after
consultation with all gas suppliers, gas shippers and public gas
transporters, with the Health and Safety Executive and with the
Gas Consumers' Council, the Director is satisfied that the
relevant security standard would be adequate if paragraph (7) or
(11) were modified -
(a) by the substitution, in paragraph (7)(b) or paragraph
(10)(a) or (b), of a reference to data derived from a period of
less than the 50 previous years;
(b) by the substitution, in paragraph (7)(b) or paragraph (10)
(a) of some higher probability for the probability of 1 year in
20 years, or
(c) by the substitution, in paragraph (10) (b), of some higher
probability of the probability of 1 year in 50
years,
the Director may, subject to paragraph (12). make such
modifications by a notice which -
(i) is given and published by the Director for the purposes of
this condition generally, and
(ii) specifies the modifications and the date on which they are
to take effect.
(12) Paragraphs (7)(b) and (10) (a) shall only be modified if, at
the same time, the Director makes similar modifications to -
(a) paragraph (2) (b) of condition 13 of the Standard Conditions
of Public Gas Transporters' Licences, and
(b) sub-paragraph (b) of the definition of "security standards"
in condition 1(1) of the Standard Conditions of Gas Shippers'
Licences.
Condition 23: Payments by licensee to Director
(1) Where the Director has given the licensee notice of the
amount in respect of a particular relevant year, determined in
accordance with paragraph (2), the licensee shall, within 30 days
of being given that notice and in respect of that relevant year,
pay that amount to the Director.
(2) The amount payable under paragraph (1) in respect of a
relevant year shall be the minimum fee or, if the licensee was
supplying gas to more than 10,000 premises on the accounting day,
the aggregate of -
(a) the minimum fee;
(b) an additional amount calculated by -
(i) taking the relevant percentage of the total recoverable
costs;
(ii) adding to that amount any amount determined by the Director
(in consultation with the Monopolies Commission), for the
purposes of this condition generally, as having been incurred by
the Commission in the preceding relevant year in connection with
references made to it under section 24 of the Act relating to a
licence or licences granted under section 7A(1) of the Act;
(iii) subtracting from the amount calculated as aforesaid an
amount equal to the minimum fee multiplied by the number of
persons who, on the accounting day, held relevant supply
licences;
(iv) multiplying the amount calculated as aforesaid by the factor
- -
A
____
B,
where -
"A" means the number of premises in excess of 10,000 to which the
licensee supplied gas on the accounting day;
"B" means the aggregate number of premises supplied with gas on
the accounting day by persons who held relevant supply licences
on that day disregarding, in the case of each such person, the
first 10,000 premises so supplied.
(3) The licensee shall as soon as is practicable after an
accounting day furnish the Director with such information as to
the number of premises to which the licensee was supplying gas on
that day as the Director may from time to time require.
(4) In this condition -
"the accounting day", in relation to a relevant year, means 1st
April in that year;
"minimum fee", in relation to a relevant year, means, in the case
of the relevant year beginning with 1st April 1996, 800 pounds
sterling or, in the case of any subsequent relevant year, that
sum adjusted in accordance with standard condition 36 except that
any fraction of 1 pounds sterling in the sum as so adjusted shall
be disregarded;
"relevant percentage" means 50% or, if the Director is of the
opinion that that percentage does not fairly represent the
proportion of the total recoverable costs which such costs
incurred in connection with the supply or use of gas or related
matters constitute, such other percentage as he may from time to
time designate, for the purposes of this condition generally, as
more fairly representing that proportion;
"relevant supply licence" means a licence granted under section
7A(1) of the Act which incorporates this standard condition, and
any reference to a person who holds a relevant supply licence
includes a reference to the licensee;
"relevant year" means a year beginning with 1st April in 1996 or
any subsequent year at the beginning of which the licensee holds
a licence under section 7A(1) of the Act;
"total recoverable costs" means the lesser of -
(a) the aggregate of -
(i) the amount estimated by the Director, for the purposes of
this condition generally, as likely to be the costs incurred by
him during the relevant year in the exercise of the functions
assigned to him by or under the Act otherwise than by paragraph 6
of Schedule 2 to the Act;
(ii) the amount so estimated by the Director after consulting the
Secretary of State as likely to be the costs incurred by the Gas
Consumers' Council during the relevant year in the exercise of
its functions under the Act, and
(iii) except in the case of the relevant year beginning with 1st
April 1996, the amount of the difference, if any, between the
costs mentioned in sub-paragraph (i) or (ii) which the Director
considers were actually incurred during the previous relevant
year and the estimate of the costs in question made by him for
the purposes of this condition, where the latter exceeds the
former the amount of the difference being treated as a negative
amount, and
(b) in the case of the relevant year beginning with 1st April
1996, 14 million pounds sterling or, in the case of any
subsequent relevant year, that sum adjusted in accordance with
standard condition 36 except that any fraction of 1,000 pounds
sterling in the sum as so adjusted shall be disregarded.
Condition 33: Assignment of licence
For the purposes of section 8AA of the Act (assignment of
licences) the licensee is hereby authorised to assign its licence
either generally or so far as relating to any specified premises
as defined in subsection (1) of that section.
Condition 34: Transfer of business
(1) Subject to paragraph (2), the licensee shall not transfer to
another person ("the transferee") all or part of its business
comprising the supply of gas to domestic customers at any
premises ("the transferred business" and "relevant premises")
unless -
(a) the Director is satisfied that the transferee -
(i) is or will be licensed to supply gas to the relevant premises
from the proposed date of the transfer, and
(ii) will have the technical and financial capability to comply
with the conditions of its licence (subject to any such
modifications as are contemplated by sub-paragraph (b)) in
respect of the supply of gas to the relevant premises, and
(b) if the licensee's licence contains additional conditions
which affect the transferred business and, in the opinion of the
Director, are for the purpose of protecting the interests of
consumers -
(i) the transferee has given the Director its consent to the
modification of the conditions of its licence by way of the
insertion of like conditions or ones having the like effect,
taking account of the purposes of those additional conditions,
and
(ii) the licensee has given the Director its consent to the
modification of those additional conditions so far as is
necessary or expedient to give continued effect to the purposes
of those conditions,
in each case, unless the Director otherwise accepts, by such date
before the day of the proposed transfer as allows the Director a
reasonable period within which to make the modifications in
question with effect from that day.
(2) Nothing in this condition shall prevent the licensee from
transferring all or part of its business where it assigns to the
transferee its licence either generally or so far as relating to
the relevant premises.
(3) In this condition, references to "additional conditions"
are references to conditions of the licensee's licence which are
additional to, or other than, these standard conditions.
Condition 35: Supply to chains of business premises
(1) This condition applies where the licensee has entered into
an agreement to supply any premises within the description set
out in section 7A(1) (b) of the Act and other premises not
falling within that description where -
(a) such other premises are used for non-domestic purposes, and
(b) all such premises are owned or occupied by a single person or
body of persons whether corporate or unincorporate or by a group
of persons, in relation to one of which the others are related
persons.
(2) Standard conditions 2, 3, 7(5) and (6), 8 to 11, 15 to 21
and 34 (where otherwise applicable) shall not apply in relation
to any agreement of the kind referred to in paragraph (1) or,
subject to paragraph (3), in relation to any domestic customer
supplied with gas in pursuance of such an agreement.
(3) Where a provision of a standard condition mentioned in
paragraph (2) applies in relation to both domestic and
non-domestic customers, that paragraph shall not affect its
application to domestic customers.
Condition 36: Adjustment of amounts by reference to the retail
price index
(1) Where it is provided in these standard conditions that an
amount ("the specified amount") shall be adjusted in accordance
with this condition, the adjusted amount shall be the specified
amount multiplied by the appropriate factor mentioned in
paragraph (2) (3).
(2) Except for the purposes of standard condition 32, the
appropriate factor referred to in paragraph (1) shall be obtained
by dividing the retail price index for the first month of the
year beginning with an anniversary of the appointed day which
includes the date by reference to which the adjustment falls to
be made by the retail price index for the month beginning with
the appointed day.
(3) For the purposes of standard condition 32, the appropriate
factor referred to in paragraph (1) shall be obtained by dividing
the retail price index for the month beginning with 1st December
in the year previous to the relevant year in question (within the
meaning of that condition) by the retail price index for the
month beginning with 1st December 1995.
(4) Any reference in this condition to the retail price index is
a reference to the general index of retail prices (for all items)
published by the Central Statistical Office of the Chancellor of
the Exchequer; and if that index is not published for any month
that reference shall be read a. a reference to any substituted
index or index figures published by that office for that month.
Condition 37: Undertaking to be given by licensee to a relevant
transporter in respect of shipping charges etc.
(1) Where the licensee supplies gas to any premises in relation
to which a particular gas transporter is the relevant transporter
("the premises concerned" and "the transporter concerned"), it
shall (unless it has previously done so) give the transporter a
binding undertaking in the specified terms and, where it has
given such an undertaking but there is a change in the specified
terms which is such that the undertaking previously given is not
in conformity with the changed terms, the licensee shall' give
the transporter a further binding undertaking in the changed
specified terms which is expressed to supersede the undertaking
previously given.
(2) An undertaking for the purposes of paragraph ( 1 ) shall be
given -
(a) as soon as is reasonably practicable within a month of the
transporter concerned becoming the relevant transporter or, if
later, of the specified terms in relation to the transporter
concerned being designated by the Director in pursuance of
paragraph (3) or specified by the transporter in pursuance of
paragraph (4), or
(b) in the case of a further undertaking, as soon as is
reasonably practicable within a month of the change in the
specified terms.
(3) Subject to paragraph ( 4 ), in this condition "specified
terms" means terms from time to time designated, in relation to
the transporter concerned, by the Director for the purpose. of
this condition generally, being terms which appear to him (after
consultation with that transporter) to be calculated to secure
the following objectives, namely that if and only if -
(a) the arrangements between the transporter concerned and a gas
shipper for the conveyance of gas to the premises concerned ("the
shipper concerned"), are terminated and no other arrangements
between the transporter and that or another gas shipper for such
conveyance have come into force, and
(b) the licensee has been given notice thereof by the transporter
concerned,
the licensee will, in respect of any period before there is a
relevant shipper in relation to the premises, be required to make
such payments to the transporter concerned in respect of gas
taken out of its pipe-line system for supply to the premises
concerned as, as nearly as may be, are the came as the payments
which would have been attributable thereto and due under the
arrangements mentioned in sub-paragraph (a), if they had not
terminated and had the shipper concerned not, thereafter,
introduced any gas into the transporter's pipe-line system nor
made arrangements to do so.
(4) After the expiry of six months from the coming into force of
the licence of the transporter concerned under section 7 of the
Act and if and so long as the Director has not designated terms
in relation to that transporter, "the specified terms" means
terms from time to time specified by the transporter concerned
which are calculated to secure the objectives mentioned in
paragraph (3).
(5) Changed specified terms shall only be designated by the
Director or, as the case may be, specified by the transporter
concerned, if by reason of changes in the arrangements between
the transporter and gas shippers, the terms previously specified
have ceased to be calculated to secure the objectives mentioned
in paragraph (3).
(6) Different specified terms may be designated by the Director
or, as the case may be, specified by the transporter concerned
for the purposes of this condition which differ according to the
shipper concerned, so far as is necessary or expedient to take
account of differences in the terms of arrangements for the
conveyance of gas made by different gas shippers.
(7) The designated by the Director of specified terms in
relation to a public gas transporter shall be by notice in
writing given to that transporter.
(8) Any reference in this condition to the termination of
arrangements shall be construed as including a reference to the
expiry of arrangements by effluxion of time and cognate
expressions shall be construed accordingly.
(9) Notwithstanding anything in the foregoing paragraphs, the
licensee shall not be required to comply therewith save in so far
as such compliance would not, from time to time, be unlawful by
reason of section 5(1) of the Act.
(10) In the circumstances mentioned in sub-paragraph, paragraph
(3), the licensee shall use its best endeavours to secure that a
gas shipper makes arrangements with the transporter concerned for
the conveyance of gas to the premises concerned which come into
force, at the latest, within 35 days of
FIRST SUPPLEMENTAL TRUST INDENTURE
This FIRST SUPPLEMENTAL TRUST INDENTURE, dated as of
February __, 1997 (the "First Supplemental Indenture"), by and
between COSO FUNDING CORP., a corporation organized under the
laws of the state of Delaware ("Coso Funding"), and FIRST BANK
NATIONAL ASSOCIATION, as trustee (the "Trustee"), a national
banking association duly existing under the laws of the United
States of America.
W I T N E S S E T H:
WHEREAS, Coso Funding is a corporation established for the
purpose of issuing notes (the "Notes"), as principal and as agent
for the Partnerships, pursuant to the Trust Indenture, dated as
of December 16, 1992 (the "Original Indenture"), between Coso
Funding and the Trustee (as successor to Bank of America National
Trust and Savings Association), as trustee; and
WHEREAS, on December 16, 1992, Coso Funding issued and sold
the Initial Notes in the aggregate principal amount of
$560,245,000; and
WHEREAS, the proceeds of the Initial Notes were used (i) to
finance the purchase by Coso Funding of outstanding secured
indebtedness of each of Coso Energy Developers, a California
general partnership ("CED"), Coso Power Developers, a California
general partnership ("CPD") and Coso Finance Partners, a
California general partnership ("CFP"), (ii) to finance capital
expenditures relating to each of such Partnership's Projects,
(iii) to fund certain reserves under the Indenture and (iv) to
pay Transaction Costs; and
WHEREAS, the principal and interest payments on the Initial
Notes will be serviced by repayment of loans made by Coso Funding
to the Partnerships, pursuant to separate Amended and Restated
Credit Agreements, each dated as of December 16, 1992 (the
"Original Credit Agreements"), with each of CFP, CED and CPD and
guaranteed by the Partnerships; and
WHEREAS, pursuant to the Original Indenture, the
Partnerships have funded and maintained moneys in the Debt
Service Reserve Fund; and
WHEREAS, Coso Funding and the Partnerships propose to amend
and supplement the Original Indenture, the Original Credit
Agreements and other Financing Documents to permit the use of a
Debt Service Reserve Letter of Credit to satisfy the obligation
to maintain moneys in the Debt Service Reserve Fund; and
WHEREAS, Section 10.02 of the Original Indenture permits
Coso Funding and the Trustee to amend the Original Indenture in
the manner contemplated by this First Supplemental Indenture upon
approval by the holders of not less than 66-2/3% in aggregate
principal amount of the Notes then Outstanding, by a supplemental
indenture filed with, and in a form satisfactory to the Trustee,
and such consent has been obtained.
NOW THEREFORE, for and in consideration of the premises and
the covenants herein contained, it is mutually covenanted and
agreed, for the benefit of the parties hereto and the equal and
proportionate benefit of all Holders of the Notes, as follows:
A G R E E M E N T:
ARTICLE I
Definitions
Capitalized terms used in this First Supplemental Indenture
and not otherwise defined in this First Supplemental Indenture
shall have the meanings assigned to such terms in the Original
Indenture.
ARTICLE II
Amendment
Section 2.01 Revenue Fund. Section 4.05(b)(9) of the
Indenture is hereby amended by deleting the current Section
4.05(b)(9) (but not deleting the last paragraph of Section
4.05(b)) and replacing such deleted provision with the following:
(9) from each Partnership's Revenue Account
(unless on such Note Payment Date funds have been
transferred on behalf of such Partnership pursuant to
clause (3) or Section 4.06(b), in which event no
transfers shall be made pursuant to this clause (9)) in
the following order of priority:
(i) first, to each of the other
Partnerships' Revenue Accounts, an amount equal to
the amount due under the applicable Support Loan
Agreement;
(ii) second, to the Debt Service Reserve LOC
Provider, for interest then due and payable on any
Debt Service Reserve LOC Loans made in respect of
such Partnership's account of the Debt Service
Reserve Fund and for any fees and expenses then
due and payable to the Debt Service Reserve LOC
Provider by such Partnership under the Debt
Service Reserve LOC Reimbursement Agreement;
(iii) third, subject to the limitations
set forth in Section 4.06(f)(ix), to the extent
that funds are not available from a Partnership's
Revenue Account for the transfer described in
clause (ii) immediately above, (A) if such
Partnership is CED or CPD, (1) from the other of
CED or CPD's Revenue Account to the deficient
Partnership's Revenue Account in an aggregate
among equal to such deficiency, and (2) from CFP's
Revenue Account to the deficient Partnership's
Revenue Account, to the extent of any remaining
deficiency after the application of clause (1)
above; (B) if such Partnership is CFP, (1) from
each of CED and CPD's Revenue Accounts to CFP's
Revenue Account, an amount equal to one-half of
such deficiency, and (2) to the extent of any
remaining deficiency should one of CED or CPD be
unable to pay its share of CFP's deficiency, from
the other of CED or CPD's Revenue Account to CFP's
Revenue Account; (C) if any two Partnerships
experience such deficiency, and one of such
Partnerships is CFP, from the third Partnership's
Revenue Account (x) first to the Revenue Account
of the Partnership that is not CFP to the extent
of any deficiency therein, and (y) second, to
CFP's Revenue Account; and (D) if CED and CPD
experience such deficiency, from CFP's Revenue
Account in accordance with the directions of the
managing partner of CFP, which shall allocate
amounts in its sole discretion;
in each case as set forth in the Revenue Transfer
Certificate.
Section 2.02 Debt Service Reserve Letter of Credit.
Section 4.06 of the Indenture is hereby amended by adding a new
Section 4.06(f) which shall read as follows:
(f) (i) A Debt Service Reserve Letter of
Credit may be issued to the Trustee by one or more
commercial banks or other financial institutions
to fulfill, to the extent of each Available Amount
of such Debt Service Reserve Letter of Credit, the
obligations of this Indenture to maintain amounts
in the Debt Service Reserve Fund if the long-term
senior unsecured debt obligations of the Debt
Service Reserve LOC Provider are rated at least
"A" by S&P and "A2" by Moody's. The Debt Service
Reserve Letter of Credit shall expire not earlier
than December 31, 2001. Any Debt Service Reserve
Letter of Credit shall provide for a revolving
feature under which the Available Amount in
respect of a Partnership will be reinstated to the
extent of any repayment of principal on the Debt
Service Reserve LOC Loans to such Partnership in
accordance with clause (A) of the first sentence
of Section 4.06(f)(v) hereof. In the event that a
Debt Service Reserve Letter of Credit is delivered
to the Trustee, the Available Amount thereof in
respect of each Partnership will be deemed to be
deposited in such Partnership's account of the
Debt Service Reserve Fund for purposes of
determining if the obligations of such Partnership
to fund or maintain amounts in such account have
been satisfied.
(ii) One Business Day prior to each date
on which the Trustee is required to withdraw or
transfer moneys from a Partnership's account of
the Debt Service Reserve Fund under this
Indenture, to the extent that moneys then held in
such Partnership's account of the Debt Service
Reserve Fund are insufficient to fund such
withdrawal and transfer, the Trustee shall deliver
to the Debt Service Reserve LOC Provider (i) a
draft on the Debt Service Reserve Letter of Credit
in an amount equal to the lesser of (A) the
Available Amount of the Debt Service Reserve
Letter of Credit in respect of such Partnership or
(B) the amount of such deficiency and (ii) an
appropriate certificate with respect thereto if
required under the Debt Service Reserve Letter of
Credit. Prior to making the other transfers
contemplated by this Section 4.05(b), the Trustee
shall deposit the moneys received from such draw
on the Debt Service Reserve Letter of Credit in
such Partnership's account of the Debt Service
Reserve Fund for use in accordance with this
Indenture.
(iii) Forty-five (45) days after
written notice to the Trustee from the Debt
Service Reserve LOC Provider, Coso Funding or any
Noteholder that the long-term senior unsecured
debt securities of such Debt Service LOC Provider
is less than "A" as determined by S&P or "A2" as
determined by Moody's (whether or not such day is
a Note Payment Date), or if such day is not a
Business Day, the next succeeding Business Day,
provided that the Debt Service Reserve Letter of
Credit has not been replaced with cash, permitted
investments and/or another Debt Service Reserve
Letter of Credit issued by a new Debt Service
Reserve LOC Provider meeting the requirements of
this Indenture, the Trustee shall deliver to the
Debt Service Reserve LOC Provider on such date (i)
a draft on the Debt Service Reserve Letter of
Credit in an amount equal to the Total Available
Amount under the Debt Service Reserve Letter of
Credit and (ii) an appropriate certificate with
respect thereto if required by the Debt Service
Reserve Letter of Credit. The Trustee shall
deposit the moneys received from the Debt Service
Reserve LOC Provider in respect of each
Partnership in payment of such draft in such
Partnership's account of the Debt Service Reserve
Fund to be applied in accordance with this
Indenture and the Loan Instruments.
(iv) No more than five (5) Business Days
prior to December 31, 2001, prior to the transfers
described in Section 4.06(d), the Trustee shall
draw the lesser of (A) the Total Available Amount
of any Debt Service Reserve Letter of Credit and
(B) the amount sufficient to discharge on December
31, 2001 all the obligations of Coso Funding and
the Borrowers under the Indenture including
without limitation all obligations for the
principal of and interest on the Notes and the
compensation of the Trustee, for deposit in the
respective Partnership's account of the Debt
Service Reserve Fund.
(v) Repayment of principal on any Debt
Service Reserve LOC Loans shall be permitted only
from moneys that (A) are transferred to the Debt
Service Reserve Fund pursuant to Sections
4.05(b)(6) or 4.05(b)(7) of this Indenture and
then only to the extent that such repayment causes
a reinstatement in the Available Amount in respect
of a Partnership under the applicable Debt Service
Reserve Letter of Credit in an amount equal to the
amount of principal so repaid, (B) are otherwise
available for distribution to a Partnership
pursuant to Section 4.05(b) of the Indenture or
(C) are not a part of the Trust Estate. Repayment
of interest, fees or expenses to the Debt Service
Reserve LOC Provider shall be permitted only from
moneys that (A) are paid to the Debt Service
Reserve LOC Provider pursuant to Sections
4.05(b)(9)(ii) or 4.05(b)(9)(iii) of this
Indenture, (B) are otherwise available for
distribution to a Partnership pursuant to Section
4.08 of the Indenture or the last paragraph of
Section 4.05(b) of the Indenture or (C) are not a
part of the Trust Estate.
(vi) The Available Amount in respect of
a Partnership may be reduced to the amount that
results when the amount of cash and/or permitted
investments on deposit in such Partnership's
account of the Debt Service Reserve Fund is
subtracted from the Debt Service Reserve Fund
Requirement of such Partnership. Any cash on
deposit in the Debt Service Reserve Fund shall be
used (or investments purchased with such cash
shall be liquidated and the proceeds applied as
required) prior to any drawing on any Debt Service
Reserve Letter of Credit. Upon delivery of moneys
by or on behalf of a Partnership to the Trustee
for deposit in such Partnership's account of the
Debt Service Reserve Fund, the Trustee shall so
deposit such moneys, provided that such moneys (i)
have been distributed, or are available for
distribution, to a Partnership pursuant to Section
4.08 of the Indenture or the last paragraph of
Section 4.05(b) of the Indenture or (ii) are not
part of the Trust Estate, as certified to Trustee
by an Authorized Representative of such Borrower.
If more than one Debt Service Reserve Letter of
Credit is delivered to the Trustee, drawings
thereunder shall be allocated among such letters
of credit as specified in a certificate by the
Partnerships, or, in the absence of such a
certificate, on a pro rata basis calculated by
reference to the Total Available Amounts under
such letters of credit.
(vii) On any Revenue Transfer Date
(after making the transfers and payments
contemplated by section 4.05(b) hereof), upon
receipt at least one day prior to such date of a
Debt Service Reserve Transfer Certificate in the
form of Exhibit J to this Indenture, the Trustee
shall pay to the Debt Service LOC Provider from
amounts available in the Debt Service Reserve Fund
an amount as set forth in the Debt Service Reserve
Transfer Certificate for repayment of outstanding
principal of Debt Service Reserve LOC Loans.
(viii) Upon issuance of a Debt
Service Reserve Letter of Credit to the Trustee in
accordance with this Indenture, the Trustee, upon
receipt of a certificate in the form of Exhibit K
hereto, shall promptly distribute to the
applicable Partnership moneys in such
Partnership's account of the Debt Service Reserve
Fund to the extent that such sum of all moneys in
such account plus the Available Amount in respect
of such Partnership of the Debt Service Reserve
Letter of Credit exceeds the Debt Service Reserve
Fund Requirement for such Partnership,
notwithstanding the fact that the date of such
distribution is not a Distribution Date, provided,
however, the Trustee shall only distribute such
moneys to the extent that the aggregate of all
moneys in the Debt Service Reserve Fund plus the
Total Available Amount of the Debt Service Reserve
Letter of Credit exceeds the aggregate of the Debt
Service Reserve Fund Requirements for all the
Partnerships.
(ix) Upon receipt by the Trustee of a
certificate of Coso Funding or a Partnership
obligated to make payments under Section
4.05(b)(9)(iii) of this Indenture to the effect
that such obligation to make such payments has
been terminated in accordance with the provisions
of the applicable LOC Support Loan Agreement,
transfers shall no longer be made pursuant to
Section 4.05(b)(9)(iii) from the Revenue Account
of such Partnership.
Section 2.03 Debt Incurred by Partnership. Section 6.04 of
the Indenture is hereby amended by adding the following sentence
at the end of such Section:
Any Debt of any Partnership incurred or existing pursuant to
clause (x) of Section 4.10(a) of such Partnership's Credit
Agreement shall (i) be subordinated as provided in, and
shall include, the Terms of Subordination attached to such
Credit Agreement as Exhibit G, and (ii) shall state that it
complies with the applicable Credit Agreement.
Section 2.04 Amendments to Definitions. Exhibit A of the
Indenture is hereby amended by:
(i) in the definition of "Credit Agreement", inserting
the phrase ", as amended or supplemented" immediately after
"1992" in each place where "1992" appears.
(ii) in the definition of "Mortgage", inserting the
phrase ", in each case as amended or supplemented," in the
first line of such definition after the phrase "as the
context requires,".
(iii) in the definition of "Subordinated Permitted
Indebtedness", deleting the phrase "(v) and (vi)" and
replacing it with "(v), (vi) and (x)".
(iv) in the definition of "Partnership Documents",
inserting the phrase ", in each case as amended or
supplemented" at the end of such definition immediately
prior to the period.
(v) in the definition of "Pledge Agreements",
inserting the phrase ", in each case as amended or
supplemented," in the second line of such definition after
the phrase "as the context requires,".
(vi) in the definition of "Security Agreement",
inserting the phrase ", in each case as amended or
supplemented," in the second line of such definition after
the phrase "as the context requires,".
(vii) in the definition of "Support Loan
Agreement", inserting the phrase ", in each case as amended
or supplemented," in the second line of such definition
after the phrase "as the context requires," and inserting
the phrase "(not including any LOC Support Loan Agreement)"
after the phrase "any similar agreement" in each case where
"any similar agreement" appears.
Section 2.05 New Definitions.. Exhibit A of the Indenture
is hereby amended by adding the following definitions in the
appropriate alphabetical order:
"Debt Service Reserve Letter of Credit" means one or
more irrevocable, direct pay letters of credit issued by the
Debt Service Reserve LOC Provider in favor of the Trustee in
support of any obligations to fund the Debt Service Reserve
Fund under the Financing Documents.
"Debt Service Reserve LOC Provider" means the
commercial bank(s) or other financial institution(s) issuing
the Debt Service Reserve Letter of Credit.
"Debt Service Reserve LOC Reimbursement Agreement"
means an agreement for the issuance of a Debt Service
Reserve Letter of Credit and reimbursement of any Debt
Service Reserve LOC Loans, fees and expenses between the
Debt Service Reserve LOC Provider and one ore more of the
Partnerships.
"Debt Service Reserve LOC Loan" means each loan made by
a Debt Service Reserve LOC Provider pursuant to the Debt
Service Reserve LOC Reimbursement Agreement in connection
with a draw on the Debt Service Reserve Letter of Credit.
"LOC Support Loan" means each loan obtained by one of
the Partnerships from another of the Partnerships for use to
pay principal of or interest on Debt Service Reserve LOC
Loans or to pay fees or expenses in connection with a Debt
Service Reserve LOC Reimbursement Agreement.
"LOC Support Loan Agreement" means an agreement for the
provision and repayment of LOC Support Loans in accordance
with the requirements of the Indenture and the applicable
Credit Agreement.
"Omnibus Agreement" means the Omnibus Acknowledgment
and Agreement, dated as of the date hereof, among Coso
Funding, CFP, CED, CPD, the Trustee and the other parties
thereto.
"Available Amount" means, in relation to each
Partnership, the maximum amount available to be drawn from
time to time under the Debt Service Reserve Letter of Credit
in respect of such Partnership.
"Total Available Amount" means the aggregate maximum
amount available to be drawn from time to time under the
Debt Service Reserve Letter of Credit in respect of all the
Partnerships.
Section 2.06 Amended Exhibits. The Indenture is hereby
amended by deleting the current Exhibit C and replacing it with
the Exhibit C to this First Supplemental Indenture.
Section 2.07 New Exhibits. The Indenture is hereby amended
by adding, as new exhibits to the Indenture, Exhibits J and K
attached to this First Supplemental Indenture.
ARTICLE III
Miscellaneous
Section 3.01 Effect of First Supplemental Indenture. Upon
the execution of this First Supplemental Indenture, the Indenture
shall be modified in accordance herewith, and this First
Supplemental Indenture shall form a part of the Indenture for all
purposes; and every Holder of Notes previously or thereafter
authenticated and delivered under the Indenture shall be bound by
the terms hereof. This First Supplemental Indenture shall be
construed as supplemental to the Indenture and shall form a part
thereof, and the Indenture is hereby incorporated by reference
herein and hereby ratified, approved and confirmed. From and
after the date hereof, whenever referred to in any Financing
Document, the Indenture shall mean the Indenture as modified,
amended and supplemented by this First Supplemental Indenture.
Section 3.02 Headings for Convenience Only. The
descriptive headings in this First Supplemental Indenture are
inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
Section 3.03 Counterparts. This First Supplemental
Indenture may be executed in any number of counterparts, each of
which when so executed and delivered shall be an original; but
such counterparts shall together constitute but one and the same
instrument.
Section 3.04 Applicable Law. THIS FIRST SUPPLEMENTAL
INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF CALIFORNIA
IN WITNESS WHEREOF, COSO FUNDING CORP. has caused this First
Supplemental Indenture to be executed by its Senior Vice
President and its corporate seal to be hereunto affixed, attested
by its Secretary or Assistant Secretary and the Trustee has
caused this First Supplemental Trust Indenture to be executed by
one of its duly authorized officers and its seal to be hereunto
affixed, attested by one of its duly authorized officers, all as
of the day and year first above written.
[SEAL] COSO FUNDING CORP., as
principal and as agent for the
Partnerships
By:_________________________
Title:________________________
Attest:
____________________________
Title:
[SEAL] FIRST BANK NATIONAL
ASSOCIATION
____________________________
Trustee
By:_________________________
Title:________________________
Attest:
____________________________
Title:
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(_________ PROJECT)
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT, dated as of February __, 1997 (the "First Amendment")
is made by and between FIRST BANK NATIONAL ASSOCIATION, a
national banking association duly existing under the laws of the
United States of America as Trustee and as Lender ("Trustee" or
"Lender"), and ___________, a general partnership organized and
existing under the laws of the State of California, as borrower
("Borrower" or "_____").
W I T N E S S E T H
WHEREAS, Coso Funding Corp. ("Coso Funding") is a
corporation established for the purpose of issuing notes (the
"Notes"), as principal and as agent for the Partnerships,
pursuant to the Trust Indenture, dated as of December 16, 1992
(the "Original Indenture"), between Coso Funding and First Bank,
National Association (as successor to Bank of America National
Trust and Savings Association), as trustee (the "Trustee"); and
WHEREAS, on December 16, 1992, Coso Funding issued and sold
the Initial Notes in the aggregate principal amount of
$560,245,000; and
WHEREAS, the proceeds of the Initial Notes were used (i) to
finance the purchase by Coso Funding of outstanding secured
indebtedness of each of Coso Energy Developers, a California
general partnership ("CED"), Coso Power Developers, a California
general partnership ("CPD") and Coso Finance Partners ("CFP"),
(ii) to finance capital expenditures relating to each of such
Partnership's Projects, (iii) to fund certain reserves under this
Indenture and (iv) to pay Transaction Costs; and
WHEREAS, the principal and interest payments on the Initial
Notes will be serviced by repayment of loans made by Coso Funding
to the Partnerships, pursuant to separate Amended and Restated
Credit Agreements, each dated as of December 16, 1992 (the
"Original Credit Agreements"), with each of ______ (such Original
Credit Agreement with _____, the "Original ___ Credit Agreement",
and such Original ___ Credit Agreement as amended, modified and
supplemented by this First Amendment, this "Credit Agreement"),
[CFP], [CED] and [CPD], and guaranteed by the Partnerships; and
WHEREAS, pursuant to the Original Indenture, the
Partnerships have funded and maintained moneys in the Debt
Service Reserve Fund; and
WHEREAS, Coso Funding and the Partnerships propose to amend
and supplement the Original Indenture, the Original Credit
Agreements and other Financing Documents to permit the use of a
Debt Service Reserve Letter of Credit to satisfy the obligation
to maintain moneys in the Debt Service Reserve Fund; and
WHEREAS, Section 10.03 of the Original Indenture permits the
parties to amend the Original ___ credit Agreement in the manner
contemplated by this First Amendment upon notice to and the
written approval or consent of the owners of not less than 66-
2/3% in aggregate principal amount of the Notes then Outstanding,
which consent has been obtained, and upon the consent and
agreement of the Trustee.
NOW, THEREFORE, for and in consideration of the premises and
the mutual covenants hereinafter contained, the parties hereto
formally covenant, agree and bind themselves as follows:
ARTICLE I - DEFINITIONS
Section 1.1. Definitions. Capitalized terms used and not
otherwise defined herein shall have the meanings as used for
purposes of the Original ___ Credit Agreement.
ARTICLE I - AMENDMENT
Section 2.1. Other Debt. Section 4.10(a) of the Original
___ Credit Agreement is hereby amended by deleting the
parenthetical "(obligations and debt described in subparts (i) to
(ix) of this Section may be referred to herein as "Permitted
Indebtedness")." and replacing it with the following:
and (x) (A) Debt incurred under a Debt Service Reserve
LOC Reimbursement Agreement or LOC Support Loans or (B)
guarantees of Debt incurred by another Partnership
under Section 4.10(a) (x) (A) of such Partnership's
Credit Agreement (obligations and Debt described in
subparts (i) to (x) of this Section may be referred to
here as "Permitted Indebtedness").
Section 2.2. Other Debt. Section 4.10(b) of the
Original ___ Credit Agreement is hereby amended by deleting the
current Section 4.10(b) and replacing it with the following:
(b) Debt of Borrower existing pursuant to clause (iv),
(v) or (x) of Section 4.10(a), together with Debt of
___ existing pursuant to clause (iv), (v) or (x) of
Section 4.10(a) of the Credit Agreement with respect to
the ________ Project and Debt of _____________ existing
pursuant to clause (iv), (v) or (x) of Section 4.10(a)
of the Credit Agreement with respect to the _____
Project, shall not in the aggregate, without
duplication, exceed two hundred million dollars
($200,000,000) at any point in time. For purposes of
compliance with this Section 4.10(b), the managing
partner of Borrower shall, upon the reasonable request
of the managing partner of ________ of ________ or
Lender, promptly provide ___ or ___ or Lender a
schedule which shows existing and projected levels of
Debt pursuant to clause (iv), (v) or (x) of Section
4.10(a). In addition, any Debt of Borrower incurred or
existing pursuant to clause (iv), or (v) of Section
4.10(a) shall (i) be fully subordinated as provided in,
and shall include, the Subordination Provisions
attached hereto as Exhibit F and (ii) state that such
Debt complies with the Credit Agreement. In addition,
any Debt of Borrower incurred or existing pursuant to
clause (x) of Section 4.10(a) shall (I) be subordinated
as provided in, and shall include, the Subordination
Provisions attached hereto as Exhibit G and (ii) state
that such Debt complies with the Credit Agreement.
Section 2.3. Amendments to Definitions. Exhibit A of the
Original ___ Credit Agreement is hereby amended by amending the
following definitions in the appropriate alphabetical order:
(i) in the definition of "Credit Agreement", inserting
the phrase ", as amended or supplemented" immediately after
"1992" in each place where "1992" appears.
(ii) in the definition of "Mortgage", inserting the
phrase ", in each case as modified or sdupplemented," in the
first line of such definition after the phrase "as the
context requires.".
(iii) in the definition of "Subordinated Permitted
Indebtedness", deleting the phrase "(v) and (vi)" and
replacing it with "(v), (vi) and (x)".
iv) in the definition of "Partnership Documents",
inserting the phrase ", in each case as modified or
supplemented" at the end of such definition immediately
prior to the period.
(v) in the definition of "Pledge Agreements",
inserting the phrase ", in each case as modified or
supplemented," in the second line of such definition after
the phrase "as the context requires,".
(vi) in the definition of "Security Agreement",
inserting the phrase ", in each case as modified or
supplemented," in the second line of such definition after
the phrase "as the context requires,".
(vii) in the definition of "Support Loan
Agreement", inserting the phrase ", in each case as amended
or supplemented," in the second line of such definition
after the phrase "as the context requires," and inserting
the phrase "(not including any LOC Support Loan Agreement)"
after the phrase "any similar agreement" in each case where
"any similar agreement" appears.
Section 2.4. New Definitions. Exhibit A of the Original
___ Credit Agreement is hereby amended by adding the following
definitions in the appropriate alphabetical order:
"Available Amount" means, in relation to each
Partnership, the maximum amount available to be drawn from
time to time under the Debt Service Reserve Letter of Credit
in respect of such Partnership.
"Debt Service Reserve Letter of Credit" means one
or more irrevocable, direct pay letters of credit issued by
the Debt Service Reserve LOC Provider in favor of the
Trustee in support of any obligations to fund the Debt
Service Reserve Fund under the Financing Documents.
"Debt Service Reserve LOC Provider" means the
commercial bank(s) or other financial institution(s) issuing
the Debt Service Reserve Letter of Credit.
"Debt Service Reserve LOC Reimbursement Agreement"
means an agreement for the issuance of a Debt Service
Reserve Letter of Credit and reimbursement of any Debt
Service Reserve LOC Loans, fees and expenses between the
Debt Service Reserve LOC Provider and one or more of the
Partnerships.
"Debt Service Reserve LOC Loan" means each loan
made by a Debt Service Reserve LOC Provider pursuant to the
Debt Service Reserve LOC Reimbursement Agreement in
connection with a draw on the Debt Service Reserve Letter of
Credit.
"LOC Support Loan" means each loan obtained by one
of the Partnerships from another of the Partnerships for use
to pay principal of or interest on Debt Service Reserve LOC
Loans or to pay fees or expenses in connection with a Debt
Service Reserve LOC Reimbursement Agreement.
"LOC Support Loan Agreement" means an agreement
for the provision and repayment of LOC Support Loans in
accordance with the requirements of the Indenture and the
applicable Credit Agreement.
"Omnibus Agreement" means the Omnibus
Acknowledgment and Agreement, dated as of the date hereof,
among Coso Funding, CFP, CED, CPD, the Trustee and the other
parties thereto.
"Total Available Amount" means the aggregate
maximum amount available to be drawn from time to time under
the Debt Service Reserve Letter of Credit in respect of all
the Partnerships.
Section 2.5. New Exhibits. The Original ___ Credit
Agreement is hereby amended by adding the Exhibit G to this First
Amendment as a new exhibit.
ARTICLE 3 - MISCELLANEOUS
Section 3.1. Effective of First Amendment. Upon the
execution of this First Amendment, this Credit Agreement shall be
modified in accordance herewith, and this First Amendment shall
form a part of this Credit Agreement for all purposes. This
First Amendment shall be construed as supplemental to this Credit
Agreement and shall form a part thereof, and this Credit
Agreement is hereby incorporated by reference herein and hereby
ratified, approved and confirmed. From and after the date
hereof, whenever referred to in any Financing Document, this
Credit Agreement shall mean this Credit Agreement as modified,
amended and supplemented by this First Amendment.
Section 3.2. Headings for Convenience Only. The
descriptive headings in this First Amendment are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
Section 3.3 Counterparts. This First Amendment may be
executed in any number of counterparts, each of which when so
executed and delivered shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
Section 3.4. Applicable Law. THIS FIRST AMENDMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA.
IN WITNESS WHEREOF, the parties hereto have caused this
First Amendment to be duly executed and delivered by the
respective officers thereunto duly authorized as of the date
first written above.
BORROWER:
TRUSTEE:
FIRST BANK NATIONAL ASSOCIATION,
as Trustee and as Lender
By: _________________________________
Name:
Title:
OMNIBUS ACKNOWLEDGMENT AND AGREEMENT
This OMNIBUS ACKNOWLEDGMENT AND AGREEMENT, dated as of
February 1, 1997 (this "Agreement") is made by and between COSO
FUNDING CORP., a Delaware corporation, for itself and as agent
for the Trustee ("Coso Funding"), COSO FINANCE PARTNERS, a
California general partnership ("CFP"), COSO ENERGY DEVELOPERS, a
California general partnership ("CED"), and COSO POWER
DEVELOPERS, a California general partnership ("CPD"), CALENERGY
COMPANY, INC., a Delaware corporation ("CECI"), CHINA LAKE
OPERATING COMPANY, a Delaware corporation ("CLOC"), COSO FINANCE
PARTNERS II, a California general partnership ("CFPII"), COSO
LAND COMPANY, a joint venture ("CLC"), COSO HOTSPRINGS
INTERMOUNTAIN POWER, INC., a Delaware corporation ("CHIP"), CHINA
LAKE JOINT VENTURE, a California general partnership ("CLJV"),
COSO TECHNOLOGY CORPORATION, a Delaware corporation, ESCA LIMITED
PARTNERSHIP, a California limited partnership ("ESCA"), ESI
ENERGY, INC., a Florida corporation ("ESI"), CAITHNESS COSO
HOLDINGS, L.P., a California limited partnership ("CCH"),
CAITHNESS NAVY II GROUP, L.P., a New Jersey limited partnership
("CNII" and, FIRST BANK NATIONAL ASSOCIATION, a national banking
organization duly existing under the laws of the United States of
America, as Lender (together with Coso Funding, CFP, CED, CECI,
CPD, CLOC, CFPII, CLC, CHIP, CLJV, CTC, ESCA, ESI, CCH and CNII,
the "Acknowledging Parties") in favor of FIRST BANK NATIONAL
ASSOCIATION, a national banking organization duly existing under
the laws of the United States of America, as trustee ("Trustee")
under the Trust Indenture, dated as of December 16, 1992 (the
"Original Indenture"), by and between Coso Funding and the
Trustee, as amended, modified or supplemented pursuant to the
First Supplemental Indenture, dated as of the date hereof. The
Original Indenture, as amended, modified or supplemented
including pursuant to the First Supplemental Indenture, is
hereafter referred to as the "Indenture". Capitalized terms used
and not otherwise defined herein shall have the meanings set
forth in Exhibit A of the Indenture.
W I T N E S S E T H
WHEREAS, Coso Funding is a corporation established for the
purpose of issuing notes (the "Notes"), as principal and as agent
for the Partnerships, pursuant to the Indenture; and
WHEREAS, on December 16, 1992, Coso Funding issued and sold
the Initial Notes in the aggregate principal amount of
$560,245,000; and
WHEREAS, the proceeds of the Initial Notes were used (i) to
finance the purchase by Coso Funding of outstanding secured
indebtedness of each of CFP, CED and CPD, (ii) to finance capital
expenditures relating to each of such Partnership's Projects,
(iii) to fund certain reserves under the Indenture and (iv) to
pay Transaction Costs; and
WHEREAS, the principal and interest payments on the Initial
Notes will be serviced by repayment of loans made by Coso Funding
to the Partnerships, pursuant to separate Amended and Restated
Credit Agreements, each dated as of December 16, 1992 (the
"Original Credit Agreements"), with each of CFP, CED and CPD and
guaranteed by the Partnerships; and
WHEREAS, Coso Funding has simultaneously with the execution
and delivery of this Agreement entered into (i) the First
Supplemental Indenture and (ii) agreements with each of the
Partnerships amending such Partnership's respective Original
Credit Agreement, to permit the use of a Debt Service Reserve
Letter of Credit to satisfy the obligation to maintain moneys in
the Debt Service Reserve Fund; and
WHEREAS, Section 10.03 of the Original Indenture permits
Coso Funding and the Trustee to amend the Security Documents and
Partnership Documents in the manner contemplated by this
Agreement upon notice to and the written approval or consent of
the owners of not less than 66-2/3% in aggregate principal amount
of the Notes then Outstanding, which consent has been obtained,
and upon the consent and agreement of the Trustee.
WHEREAS, the parties wish to enter into this Agreement in
order to amend the Support Loan Agreements and to acknowledge
that the obligations of the Acknowledging Parties under the
Security Documents and Agency Agreements include the obligations
of the Acknowledging Parties as amended, modified or supplemented
by this Agreement, the amendments as of the date hereof to the
Credit Agreements and the First Supplemental Indenture.
NOW, THEREFORE, for and in consideration of the premises and
the covenants herein contained, it is mutually covenanted and
agreed, for the benefit of the parties hereto and the equal and
proportionate benefit of all Holders of the Notes, as follows:
AGREEMENT
Section 1. Security Documents. Each Acknowledging Party
hereby acknowledges and agrees for the benefit of the Trustee
acting for and on behalf of the Noteholders that the obligations
secured by each Security Document to which such Acknowledging
Party is a party shall and are hereby expressly made to include
(to the extent they do not now so include) all obligations of
such Acknowledging Party (and of any other Acknowledging Party
whose obligations are secured by the terms of such Security
Document), if any, under (a) each of the Credit Agreements, as
amended as of the date hereof and (b) any other Financing
Document entered into in connection with the First Supplemental
Indenture to which such Acknowledging Party is a party.
Section 2. References to Indenture and Credit
Agreements. From and after the date of this Agreement, all
references in the Security Documents and the Agency Agreements to
the Indenture or any Credit Agreement (including for the purpose
of defining capitalized terms) shall, unless the context
otherwise requires, mean the Original Indenture as amended,
modified or supplemented by the First Supplemental Indenture, or
such Credit Agreement, as amended, modified and supplemented as
of the date hereof.
Section 3. Amendments to Support Loan Agreements. Each
of the Support Loan Agreements is hereby amended as follows:
(i) in Paragraph 1(f) thereof, by inserting the phrase
", except as provided in Section 4.06(f)(vii) of the
Indenture," in the third line of such Paragraph immediately
after the words ":it shall".
(ii) in Paragraph 1(i) thereof, by deleting the word
"second" in the third line of such Paragraph and replacing
such word with the word "junior".
Section 4. Amendments to Subordinated Deeds of Trust.
Section 4.10 of each of the Subordinated Deeds of Trust,
Assignment of Rents, Security Agreement and Fixture Filings (as
defined in clause (i) of the definition of Subordinated Security
Documents of each of the Support Loan Agreements) is hereby
amended by inserting the following sentence at the end of such
Section:
In addition, from and after the release of the Indenture and
the Credit Agreements as contemplated by Section 11.01(a) of the
Indenture, this Deed of Trust shall be subordinate in all
respects to any security interest granted to the collateral agent
for the Debt Service LOC Provider in connection with any Debt
Service Reserve LOC Loans or other obligations of Debtor under
the Debt Service LOC Reimbursement Agreement.
Section 5. Acknowledgment of Assignment. Each of the
Acknowledging Parties hereby acknowledges and agrees for the
benefit of the Trustee acting for and on behalf of the
Noteholders that (i) Coso Funding has assigned to the Trustee,
inter alia, (A) the Credit Agreement and the Security Documents
and all rights attendant thereto and (B) all of Coso Funding's
rights, title and interest in, to and under the Credit Agreements
and the Security Documents; (ii) such assignments are hereby
expressly made to include (to the extent they do not now so
include) such Credit Agreements, Security Documents, all rights
attendant thereto and all of Coso Funding's right, title and
interest therein, in each case as amended, modified or
supplemented as of the date hereof; and (iii) all references in
the Acknowledgment of Assignment and Power of Attorney, dated as
of December 16, 1992, by and among Coso Funding, CFP, CED, CPD
and the Trustee, to the Indenture, the Credit Agreements and the
Security Documents (including for the purpose of defining
capitalized terms) shall mean, unless the context otherwise
requires, the Original Indenture as amended, modified or
supplemented by the First Supplemental Indenture, the Credit
Agreements, as amended, modified and supplemented as of the date
hereof, or the Security Documents, as amended, modified and
supplemented hereby, as the case may be.
Section 6. Effect of Agreement. From and after the date
hereof, all references in the Security Documents and the Agency
Agreements to any Security Documents or Agency Agreements shall
mean the applicable Security Documents or Agency Agreements as
amended, modified or supplemented hereby. Except as specifically
amended, modified or supplemented above, the Initial Security
Documents and Agency Agreements shall remain in full force and
effect and are hereby ratified and confirmed. The execution,
delivery and effectiveness of this Agreement shall not, except as
expressly provided herein, operate as a waiver of any right,
power or remedy of the Trustee or any of the Noteholders and
shall not constitute a waiver of any provisions of the Security
Documents or Agency Agreements.
Section 7. Headings for Convenience Only. The
descriptive headings in this Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
Section 8. Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed and
delivered shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Section 9. Applicable Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by the respective
officers thereunto duly authorized as of the date first written
above.
