31.14 Requested Economic Planning Study Agreement

STUDY AGREEMENT TEMPLATE FOR A

REQUESTED ECONOMIC PLANNING STUDY

THIS REQUESTED ECONOMIC PLANNING STUDY AGREEMENT (“Agreement”) is made and entered into this _____ day of ________, 20__ by and between _______________________, a _____________________ organized and existing under the laws of the State of ___________________, (“Requestor”), and the New York Independent System Operator, Inc., a not-for-profit corporation organized and existing under the laws of the State of New York (“NYISO”).  Requestor and NYISO each may be referred to as a “Party,” or collectively referred to as the “Parties.”

RECITALS

WHEREAS, Requestor has submitted a completed Requested Economic Planning Study Request Form, dated _____________, (“Request Form”) and a $25,000 deposit to the NYISO for the NYISO to conduct a Requested Economic Planning Study pursuant to Section 31.3.3 of Attachment Y to the OATT; and

WHEREAS, Requestor and the NYISO have met to discuss and determine, and have determined and agreed upon, the scope and deliverables of the Requested Economic Planning Study to be performed under this Agreement, which are set forth in Attachment A hereto; and

WHEREAS, Requestor desires the NYISO to proceed to perform, or cause to be performed, the Requested Economic Planning Study in accordance with this Agreement, and with applicable provisions of Attachment Y to the OATT and ISO Procedures;

NOW, THEREFORE, in consideration of and subject to the mutual covenants contained herein the Parties agree as follows:

1.0 Capitalized terms that are not otherwise defined herein shall have the meaning set forth in Section 1 of the OATT or in Section 31.1.1 of Attachment Y to the OATT.

2.0 Requestor requests, and the NYISO shall perform or cause to be performed, a Requested Economic Planning Study consistent with Section 31.3.3 of Attachment Y to the OATT.  The terms of Section 31.3.3 of Attachment Y to the OATT are hereby incorporated herein by reference.

3.0 The scope and deliverables of the Requested Economic Planning Study shall be specified in Attachment A to this Agreement.  The NYISO shall use the database and base case assumptions agreed upon by the Requestor and the NYISO for the Requested Economic Planning Study.

4.0 The Requested Economic Planning Study will be based upon the information described in Attachment A to this Agreement, including the information provided by Requestor in its Request Form.  The NYISO reserves the right to request further information from Requestor, as may reasonably become necessary during the course of the Requested Economic Planning Study, and Requestor shall promptly provide such additional information if requested to do so.

5.0 The NYISO shall make Reasonable Efforts to complete the Requested Economic Planning Study by [calendar date].  If the NYISO determines that this target date will not be met, the NYISO will promptly inform Requestor and provide Requestor with an updated estimate of the date by which the Requested Economic Planning Study will be completed together with an explanation of the reasons why additional time is required.  If Requestor modifies the technical information provided in the Request Form, the NYISO may reasonably extend the time to complete the Requested Economic Planning Study.

6.0 Study Costs

6.1 The NYISO shall invoice on a monthly basis, and Requestor shall pay to the NYISO, the actual costs incurred by the NYISO to perform the Requested Economic Planning Study in accordance with the requirements in Sections 31.3.3.7, 31.3.3.8, and 31.3.3.9 of Attachment Y of the ISO OATT.  This includes costs that the NYISO incurs at its discretion to use contractors or consultants, computing services, and costs that Transmission Owners may incur to supply study-related data at the NYISO’s request.  Costs shall be computed on a time and materials basis in accordance with the rates set forth in Attachment B to this Agreement.

6.2 Requestor submitted an initial deposit of $25,000 with its Request Form in accordance with Section 31.3.3.2 of Attachment Y to the ISO OATT.  The NYISO’s good faith estimate of the total cost of the Requested Economic Planning Study is $[___________].  The Parties acknowledge and agree that the actual total cost of the Requested Economic Planning Study may differ from this estimate.  Upon execution of this Agreement, the ISO may require, at its discretion, and Requestor shall submit an additional deposit of $[______________] in accordance with Section 31.3.3.5 of Attachment Y of the ISO OATT.  If Requestor modifies the scope of the Requested Economic Planning Study as initially specified in Attachment A to this Agreement, and does so in such a way as to increase the estimated total cost of the Requested Economic Planning Study, the NYISO may require, at its discretion, and the Requestor shall pay, an additional deposit to reflect that cost increase.  The NYISO shall hold the study deposit(s) provided by Requestor in an interest-bearing account for which the interest earned will be associated with Requestor and shall be applied to study costs and subject to refund as described in Section 31.3.3.8 of Attachment Y of the ISO OATT.

6.3 Upon: (i) the completion of the Requested Economic Planning Study or the withdrawal of the Request Form due to the termination of this Agreement, and (ii) the ISO’s receipt of all final invoices from its consultants and contractors, computing services, and involved Transmission Owners, the ISO shall issue a final invoice to Requestor.  Upon the ISO’s receipt of Requestor’s final payment for all outstanding invoiced amounts, the ISO shall refund to Requestor: (i) its study deposit(s) submitted to the ISO pursuant to Section 6.2 of this Agreement and Sections 31.3.3.2 and 31.3.3.5 of Attachment Y of the ISO OATT, less any amount that the ISO was required to draw upon to satisfy prior invoiced amounts, and (ii) any interests earned on the net study deposit amount held by the ISO.

7.0 Study Results

7.1 Upon completion of the Requested Economic Planning Study, the NYISO will deliver the final written report of the completed Requested Economic Planning Study to Requestor, and, upon Requestor’s request, the Parties will meet at a mutually agreeable time and place to review the results of the Requested Economic Planning Study.

7.2 The NYISO will review the results of the Requested Economic Planning Studies to determine whether the results reveal Confidential Information that is not subject to disclosure under the NYISO’s Code of Conduct.  Confidential Information will be removed or the results aggregated or masked sufficiently to avoid the disclosure of Confidential Information.  The NYISO will post the results of the Requested Economic Planning Study on its website if and when it is required to do so in accordance with Section 31.3.3.10 of Attachment Y to the OATT.

8.0 Requestor may withdraw its Request Form at any time by terminating this Agreement in accordance with Section 9.5 of this Agreement.  Upon receipt of such termination notice, the NYISO will cease work on the Requested Economic Planning Study.  Requestor shall reimburse the NYISO for the costs incurred by, or on behalf of, the NYISO for the Requested Economic Planning Study through the effective date of termination.  The NYISO will issue a final invoice and refund the Requestor’s study deposit(s) in the manner described in Section 6.3 of this Agreement.  The NYISO will forward to the Requestor the results of any study work, related to the deliverables, completed prior to the withdrawal date following Requestor’s final payment. 

9.0 Miscellaneous

9.1 Accuracy of Information.  Except as Requestor may otherwise specify in writing when it provides information to the NYISO under this Agreement, Requestor represents and warrants that the information it provides to NYISO shall be accurate and complete as of the date the information is provided.  Requestor shall promptly provide NYISO with any additional information needed to update information previously provided.

9.2 Disclaimer of Warranty.  In preparing the Requested Economic Planning Study, the NYISO and any subcontractor or consultant employed by it and any Transmission Owner that provides study-related data shall have to rely on information provided by the Requestor, and possibly by third parties, and may not have control over the accuracy of such information.  Accordingly, neither the NYISO nor any subcontractor consultant employed by the NYISO nor any Transmission Owner that provides study-related data makes any warranties, express or implied, whether arising by operation of law, course of performance or dealing, custom, usage in the trade or profession, or otherwise, including without limitation implied warranties of merchantability and fitness for a particular purpose, with regard to the accuracy, content, or conclusions of the Requested Economic Planning Study.  Requestor acknowledges that it has not relied on any representations or warranties not specifically set forth herein and that no such representations or warranties have formed the basis of its bargain hereunder.

9.3 Limitation of Liability.  In no event shall either Party or its subcontractors or consultants or any Transmission Owner that provides study-related data be liable for indirect, special, incidental, punitive, or consequential damages of any kind including loss of profits, arising under or in connection with this Agreement or the Requested Economic Planning Study or any reliance on the Requested Economic Planning Study by either Party or third parties, even if one of the Parties or its subcontractor consultants have been advised of the possibility of such damages.

9.4 Third-Party Beneficiaries.  Without limitation of Sections 9.2 and 9.3 of this Agreement, Requestor further agrees that any subcontractor or consultant hired by NYISO with respect to the Requested Economic Planning Study and any Transmission Owner that provides study-related data shall be deemed third party beneficiaries of these Sections 9.2 and 9.3.

9.5 Term and Termination.  This Agreement shall be effective from the date hereof and, unless earlier terminated in accordance with this Section 9.5, shall continue in effect until the later of the date on which the Requested Economic Planning Study is completed or the Requestor makes its final payment under this Agreement and is refunded any remaining portion of its deposit.  Requestor may by ten (10) days written notice terminate this Agreement and thereby withdraw its Request Form.

9.6 Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to any choice of laws provisions.

9.7 Severability.  In the event that any part of this Agreement is deemed as a matter of law to be unenforceable or null and void, such unenforceable or void part shall be deemed severable from this Agreement and the Agreement shall continue in full force and effect as if each part was not contained herein.

9.8 Counterparts.  This Agreement may be executed in counterparts, and each counterpart shall have the same force and effect as the original instrument.

9.9 Amendment.  No amendment, modification or waiver of any term hereof shall be effective unless set forth in writing signed by the Parties hereto.

9.10 Survival.  All warranties, limitations of liability and confidentiality provisions provided herein shall survive the expiration or termination hereof.

9.11 Independent Contractor.  NYISO shall at all times be deemed to be an independent contractor and none of its employees or the employees of its subcontractors shall be considered to be employees of Requestor as a result of this Agreement.

9.12 No Implied Waivers.  The failure of a Party to insist upon or enforce strict performance of any of the provisions of this Agreement shall not be construed as a waiver or relinquishment to any extent of such Party’s right to insist or rely on any such provision, rights and remedies in that or any other instances; rather, the same shall be and remain in full force and effect.

9.13 Successors and Assigns.  This Agreement, and each and every term and condition hereof, shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns.

IN WITNESS THEREOF, the Parties have caused this Agreement to be duly executed by their duly authorized officers or agents on the day and year first above written.

ATTACHMENT A

SCOPE OF WORK AND DELIVERABLES FOR THE

REQUESTED ECONOMIC PLANNING STUDY

[TBD]

[TBD]

[TBD]

ATTACHMENT B

HOURLY RATES FOR PERSONNEL WORKING ON THE

REQUESTED ECONOMIC PLANNING STUDY