operative provisions - australian energy market operator€¦ · web viewthe parties agree that...

Independent Expert Agreement

Australian Energy Market Operator Ltd

and

#1#

Australian Energy Market Operator LtdLevel 22, 530 Collins StreetMELBOURNE VIC 3000TEL: 03 9609 8000FAX: 03 9609 8080

OPERATIVE PROVISIONS 4

1 INTERPRETATION 4

1

2 TERM 5

3 MASTER AGREEMENT 5

4 ASSIGNMENTS 5

5 PERSONNEL 6

6 INDEPENDENT EXPERT’S RESPONSIBILITIES 6

7 PAYMENTS TO INDEPENDENT EXPERT 7

8 GST 7

9 CONFIDENTIAL INFORMATION 7

10 DISCLOSURE 8

11 INTELLECTUAL PROPERTY 8

12 LIABILITY 9

13 INSURANCE 9

14 GOVERNANCE 9

15 DELAY 10

16 DISPUTE RESOLUTION 10

17 TERMINATION 11

18 NOTICES 11

19 MISCELLANEOUS 11

20 GOVERNING LAW 12

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DETAILS

Parties: Australian Energy Market Operator Limited ABN 94 072 010 327 of Level 22, 530 Collins Street, MELBOURNE VIC 3000 (AEMO)

and

#1# ABN #2#of #3# (Independent Expert)

Independent Expert Contact: #4#

AEMO Contact: #5#

Commencement Date: #6#

Nominated Personnel:

Payment Period: 30 days after the date of receipt of an invoice in accordance with this Agreement.

Liability Cap: AEMO’s Liability Cap Assignment Fee and Agreed Expenses due under an Assignment

Independent Expert’s Liability Cap $ 5 million per Assignment

Insurance Cover: Professional Indemnity Insurance $ 5 million per Assignment

Public Liability Insurance $ 10 million per Assignment

Address for Service of Notices:

AEMO:Attention: [insert]Address: Level 22, 530 Collins Street, Melbourne VIC 3000Facsimile: 03 9609 8080

cc:Attention: Group Manager LegalAddress: Level 22, 530 Collins Street, Melbourne VIC 3000Facsimile: 03 9609 8080

Independent Expert:Attention: [insert]Address: [insert]Facsimile: [insert]

Governing Law: Victoria

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Operative Provisions

1 InterpretationDefinitions1.1 Capitalised terms not otherwise defined in clause 1.2 are defined in the Schedule, the Details or in an

Attachment. Italicised terms are defined in the NEL or NER.

1.2 Unless a contrary intention appears, these meanings apply in this document:

Assignment means the document contained in Attachment 3.

Agreed Expenses means:

(a) the Expenses; and

(b) any other expenses incurred by the Independent Expert in performing the Services in accordance with this Agreement and approved by the AEMO Contact subsequent to their being incurred.

Brief means the document contained in Attachment 1.

Confidentiality Deed Poll means the document contained in Attachment 4.Corporations Act means the Corporations Act 2001 (Cth).First Stage Dispute Resolution Process means the procedures set out in clause 8.2.4 of the NER.

Insolvent has the meaning given to that term in the Corporations Act.

Intellectual Property includes all patents, copyright, moral rights, registered designs, registered and unregistered trademarks, trade secrets, knowhow and confidential information and all other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967.

Law means Commonwealth, state, or local legislation, judicial, administrative, or regulatory decrees, judgments, awards or orders and all common laws and equity.

NEM means the National Electricity Market, the wholesale exchange and power system operated and administered by AEMO under the NEL.

NEL means the National Electricity Law, which is contained in the Schedule to the National Electricity (South Australia) Act 1996 (SA).

NER means the National Electricity Rules made under the NEL.

Representative means any director, officer, employee, contractor, agent and any other authorised representative of a person.

Response to Brief means the document contained in Attachment 3.

Second Stage Dispute Resolution Process means the procedures set out in clause 8.2.5 of the NER.

Construction1.3 Unless a contrary intention appears in this document, a reference to:

(a) this Agreement includes any schedules and attachments;

(b) a document (including this Agreement) includes the document as novated, varied, or replaced, and despite any change in the identity of the parties;

(c) a clause, paragraph, schedule, or attachment is a reference to a clause, paragraph, schedule, or attachment to this Agreement;

(d) a clause is a reference to all its subclauses;

(e) legislation (including the NER) includes subordinate legislation and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them;

(f) the singular includes the plural and vice versa and a gender includes all genders;

(g) the word “person” includes a firm, a body corporate, a partnership, an unincorporated association or a government agency and any successor entity to those persons;

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(h) a person includes a reference to the person’s executors, administrators, successors, substitutes (including persons taking by novation) and assigns;

(i) a party includes, where the context requires it, that person’s directors, officers, employees, contractors, agents and any other persons authorised by that party;

(j) the words “includes”, “including” or “such as” are not words of limitation, and when introducing an example, do not limit the meaning of the words to which the example relates to examples of a similar kind;

(k) a thing (including an amount) is a reference to the whole and each part of it and a reference to a group of persons is a reference to all of them collectively, to any two or more of them collectively, and to each of them individually, but nothing in this paragraph (k) implies that performance of part of an obligation constitutes performance of that obligation;

(l) “dollars” or “$” means Australian dollars; and

(m) writing includes any mode of representing or reproducing words in tangible and permanently visible form, and includes facsimile transmissions.

1.4 If a word or phrase is defined in this Agreement, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

1.5 Headings are inserted for convenience and do not affect the interpretation of this Agreement.

1.6 If, and to the extent of, any inconsistency between the Operative Provisions, schedules, or attachments to this document, the Operative Provisions will prevail over the schedules and attachments, and the schedules will prevail over the attachments.

1.7 No rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it.

2 TermThis Agreement commences on the Commencement Date and continues until terminated in accordance with this Agreement.

3 Master Agreement3.1 The parties agree that this Agreement is in the nature of a master agreement by which AEMO may

request the provision of Services from the Independent Expert and the Independent Expert will assign the provision of the Services specified in an Assignment to the Nominated Personnel specified in that Assignment, who will deliver the Services to AEMO on behalf of the Independent Expert.

4 AssignmentsRequest for Services4.1 From time to time during the currency of this Agreement, AEMO may submit a Brief to the Independent

Expert requesting the Independent Expert to provide Services.

4.2 Within 7 days of receipt of a Brief from AEMO, the Independent Expert must submit to AEMO a Response to Brief, indicating whether the Independent Expert is in a position to provide the Services on the terms required by AEMO, as those are expressed in the Brief.

4.3 If AEMO is satisfied with the Independent Expert’s Response to Brief, AEMO will complete the Assignment, execute it and send it to the Independent Expert for the Independent Expert’s execution and return to AEMO.

Status of Assignment4.4 Each fully completed and executed Assignment constitutes a separate contract between the parties

comprising the Assignment itself and clauses 1 and 5 to 20.

5 Nominated Personnel Nominated Personnel5.1 The Independent Expert agrees that Services will only be performed by the Nominated Personnel.

5.2 The Independent Expert must not remove or replace Nominated Personnel without AEMO’s consent.

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Criminal Offences5.3 If any of the Nominated Personnel are charged with having committed, or are convicted of, any criminal

offence other than a traffic or parking offence in any jurisdiction, the Independent Expert must immediately notify the AEMO Contact and respond in accordance with any direction given by the AEMO Contact concerning the Nominated Personnel.

6 Independent Expert’s ResponsibilitiesServices6.1 The Services must be performed with due care and skill and all Deliverables must conform with the

requirements of this Agreement and be performed to the reasonable satisfaction of the AEMO Contact.

Timetable6.2 Services must be performed in accordance with an intervention settlement timetable, or in accordance

with the NER (as applicable), and in a manner that ensures the Services are completed as contemplated by the NER.

Compliance with Laws6.3 The Independent Expert must comply with all relevant Laws, rules, policies and procedures, including

those related to occupational health and safety and both physical and electronic security, that apply to AEMO. AEMO will notify the Independent Expert of AEMO’s relevant policies and procedures at all times.

Records & Audit6.4 The Independent Expert must keep accurate and complete records necessary to demonstrate

compliance with this Agreement and must allow AEMO access to inspect and copy those records at reasonable times on reasonable notice at any time up to a period of 3 years after this Agreement ends.

Conflict of Interests6.5 If the Independent Expert becomes aware of any conflict of interests upon receipt of a Brief, the

Independent Expert must notify the AEMO Contact of the conflict immediately and will comply with any directions for managing the conflict that the AEMO Contact may give the Independent Expert.

6.6 Unless AEMO confirms otherwise, a commercial relationship between the Independent Expert and a Referred Affected Participant, Referred Market Customer, Referred Directed Participant or any Market Customer affected by mandatory restrictions (as applicable) is taken to give rise to a conflict of interests.

6.7 Without limiting any other provision of this Agreement, AEMO may, in its absolute and unfettered discretion, withdraw a Brief following receipt of the Independent Expert’s notice of a conflict of interests under clause 6.5.

Representations and Warranties 6.8 The Independent Expert represents and warrants to AEMO as at the date of this Agreement and at all

times thereafter that, in addition to any warranties that might be implied by Law:

(a) it will comply with all applicable Laws;

(b) it will act in good faith towards AEMO;

(c) the Nominated Personnel will be duly qualified and skilled to provide the Services to AEMO;

(d) it will act with due care and skill at all times in the performance of the Services and in accordance with applicable professional standards; and

(e) it has full corporate power and authority to enter into, perform and observe its obligations under this Agreement, and that the execution, delivery and performance of this Agreement by it has been duly and validly authorised by all necessary corporate action.

7 Payments to Independent ExpertAssignment Fee7.1 Subject to clause 7.2, the Independent Expert acknowledges that the Assignment Fee fully

compensates the Independent Expert for all costs associated with the provision of the Services, including the cost of any goods supplied with the Services and any incidental services provided.

Agreed Expenses7.2 Provided they are reasonable having regard to the relevant Services, AEMO shall reimburse the

Independent Expert for any Agreed Expenses.

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Invoicing and Payment7.3 The Independent Expert must submit invoices on provision of all Deliverables to AEMO.

7.4 Invoices forwarded by the Independent Expert must include the Assignment Fee and details of any Agreed Expenses for which reimbursement is claimed.

7.5 AEMO will pay any undisputed invoice within the Payment Period. If AEMO disputes an invoice, AEMO will promptly notify the Independent Expert of AEMO’s reasons for the dispute, and the disputed part will then be dealt with in accordance with clause 16.

Payment not Evidence7.6 No payment made by AEMO to the Independent Expert under this Agreement is conclusive evidence

that Services have been provided according to this Agreement unless that payment is accompanied by a certificate to that effect.

8 GSTSums exclude GST8.1 All sums payable, or consideration under this Agreement, are exclusive of GST.

Responsibility for GST8.2 If a supply is subject to GST, the recipient must pay to the supplier an additional amount equal to the

Assignment Fee multiplied by the applicable GST rate at the same time as payment is made for the supply.

Administration8.3 Each party must provide valid tax invoices and assist the other party to claim input tax credits for GST

where relevant in connection with this Agreement and to provide such other reasonable assistance to facilitate the management by each party of its GST affairs in connection with this Agreement.

Defined Terms 8.4 In clause 8, the expressions “GST”, “consideration”, “input tax credit”, “recipient”, “supplier”,

“supply” and “tax invoice” have the meanings given to those terms in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

9 Confidential InformationNegative Undertaking 9.1 The Independent Expert agrees that at all times it will not:

(a) disclose the confidential information in any manner to any person other than:

(i) to the Nominated Personnel and any of its Representatives who require such confidential information for the proper performance of this Agreement; and

(ii) as required by Law,

and will ensure that any such disclosure is made on an expressly confidential basis.

(b) use or permit to be used in any manner the confidential information for any purpose other than the performance of the Services; and

(c) copy, exhibit or communicate or otherwise make use of any documentation relating to or concerning the confidential information, except to the extent necessary for the performance of the Services.

9.2 The Independent Expert agrees that neither a Draft Report, nor Final Report, will contain confidential information.

Protection of Information9.3 The Independent Expert must take proper and adequate precautions to preserve the secrecy and

confidentiality of the confidential information and ensure that its handling and storage (both physical and electronic) of the confidential information is effective to restrict access to the persons detailed in clause 9.1(a).

9.4 If there is any uncertainty over whether any information is confidential information, the Independent Expert agrees to treat it as confidential information unless notified by AEMO to the contrary.

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Publication of Articles9.5 The Independent Expert undertakes that apart from publication of a Draft Report or Final Report under

the NER, it will not without AEMO’s consent, publish either alone, or in conjunction with others, articles, photographs, and other illustrations relating to the Services or this Agreement.

Return of Materials9.6 If AEMO notifies the Independent Expert that it requires it, the Independent Expert must deliver to

AEMO (or with AEMO’s consent, destroy or erase) all documents and other information in any material form (be it visible or not) in the possession, power, or control of the Independent Expert relating to, or concerning the confidential information, including any copies of those documents and incidental materials then in existence.

10 DisclosureDisclosure required by Law10.1 If the Independent Expert is required by any Law to disclose any confidential information, the

Independent Expert must:

(a) first give reasonable notice to and consult with AEMO;

(b) disclose no more confidential information than is strictly required; and

(c) do whatever is necessary to ensure that the disclosed confidential information is treated confidentially.

Disclosure to Representatives10.2 Before any confidential information is disclosed to any Nominated Personnel or any of its

Representatives, the Independent Expert must:

(a) inform AEMO of the name and role of each Nominated Personnel or other Representative to whom it is to be Disclosed;

(b) cause each of them to sign the Confidentiality Deed Poll for the benefit of each Referred Affected Participant, Referred Market Customer, Referred Directed Participant and Market Customer (as applicable) named in the Confidentiality Deed Poll; and

(c) deliver the Confidentiality Deed Poll to AEMO.

11 Intellectual PropertyIntellectual Property in Deliverables11.1 Any Intellectual Property rights created in the Deliverables will be owned by AEMO and, if requested by

AEMO, the Independent Expert will execute any necessary documents to secure appropriate protection of those Intellectual Property rights for AEMO.

Independent Expert’s Intellectual Property Unaffected11.2 Nothing in this Agreement affects the Independent Expert’s rights to existing Intellectual Property owned

by the Independent Expert that is used in the supply of the Services and the Deliverables, but AEMO has an unrestricted right to use and deal with the Deliverables.

Third Party Rights not Infringed11.3 The Independent Expert warrants that the supply of the Services and AEMO’s use of the Deliverables

as contemplated by this Agreement will not infringe the Intellectual Property of any other person.

12 Liability Unlimited Liability12.1 Neither party excludes liability in connection with this Agreement for:

(a) liability arising from a breach of clause 9;

(b) liability under clause 11; or

(c) fraud by the party.

Limit of Liability12.2 Subject to clause 12.1, the total liability of a party in connection with this Agreement (whether in

contract, tort, including negligence, or otherwise) is limited to the party’s Liability Cap.

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Excluded Liability12.3 Subject to clause 12.1, neither party will be liable (whether in contract, tort (including negligence) or

otherwise) for loss of profits, business, revenue, goodwill, opportunity, or anticipated savings or for any other form of indirect or consequential loss or damage.

Relationship with National Electricity Law 12.4 This Agreement does not vary or exclude the operation of section 119, 120 or 120A of the NEL.

13 InsuranceMandatory Insurance13.1 The Independent Expert must maintain:

(a) workers’ compensation insurance against any liability that might arise under any relevant Law;

(b) professional indemnity insurance from the commencement of the provision of the Services until the expiration of 6 years following the date of completion of the Services for at least the amount specified in the Details; and

(c) public liability insurance for at least the amount specified in the Details,

on terms and with an insurer reasonably acceptable to AEMO.

Evidence of Currency13.2 The Independent Expert must provide AEMO with evidence of the currency of the required insurances

on the Commencement Date and thereafter upon renewal, and on AEMO’s request.

14 GovernanceMeetings and Reports14.1 The Independent Expert must provide the Reports and attend the Meetings specified in an Assignment.

Contacts14.2 AEMO appoints the AEMO Contact to be the point of contact with the Independent Expert for the

administration of this Agreement. The AEMO Contact’s actions are taken to be AEMO’s.

14.3 The Independent Expert appoints the Independent Expert Contact to be the point of contact with AEMO for the administration of this Agreement. The Independent Expert Contact’s actions are taken to be the Independent Expert’s.

15 DelayNotice of Delay15.1 As soon as it becomes apparent that an obligation under this Agreement might not be met on time, the

Independent Expert must notify AEMO promptly of the delay. The notice must include:

(a) the cause of the delay;

(b) the steps being taken by the Independent Expert to minimise the delay; and

(c) the extension of time requested.

Extension of Time15.2 AEMO will extend the time for meeting the affected obligation by a period AEMO considers reasonable

having regard to the extent to which performance has been delayed by causes beyond the Independent Expert’s control. The intervention settlement timetable will be revised to reflect any extension granted.

Failure to Notify of Delay15.3 If the Independent Expert does not notify AEMO of a delay in accordance with clause 15.1:

(a) AEMO is not obliged to grant an extension of time for the completion of the Services;

(b) the Independent Expert must perform its obligations in accordance with the intervention settlement timetable; and

(c) any principle of Law that might otherwise make the date of achievement of an obligation uncertain will not apply.

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16 Dispute ResolutionActivation of Dispute Resolution Process16.1 If a party claims that a dispute has arisen in relation to this Agreement they must give the other party a

notice (Dispute Notice).

16.2 A Dispute Notice must include details of:

(a) the nature of the dispute and the circumstances giving rise to the dispute;

(b) the party’s proposed resolution of the dispute; and

(c) contact details of the relevant delegate of that party with authority to resolve the dispute (Delegate).

Referral to Delegates 16.3 If a Dispute Notice is given by a party the parties’ Delegates must meet within 7 days of receipt of the

Dispute Notice and use their best endeavours to agree to a resolution of the dispute.

NER Dispute Resolution Processes16.4 If the parties’ Delegates do not resolve the dispute within 7 days of their first meeting, the parties agree

that the First Stage Dispute Resolution Process and Second Stage Dispute Resolution Process apply and will use their best endeavours to agree to a resolution of the dispute.

No Recourse to Litigation 16.5 A party must not have recourse to litigation or Second Stage Dispute Resolution Processes unless it

has either given or received a DMS referral notice.16.6 Clause 16.5 does not prevent a party seeking an urgent interlocutory injunction from a court of

competent jurisdiction.

Parties to Continue Performance of this Agreement16.7 Unless otherwise agreed, the parties must continue to perform their obligations under this Agreement

despite the existence of a dispute.

17 TerminationTermination for Insolvency17.1 Either party may terminate this Agreement by 7 days’ notice to the other if the other party becomes

Insolvent.

Termination by AEMO for Breach17.2 AEMO may terminate this Agreement if the Independent Expert commits a material breach of this

Agreement and the breach:

(a) is not capable of being cured; or

(b) is capable of being cured, but the Independent Expert fails to cure it within 7 days of receiving a notice of the breach from AEMO.

Termination by the Independent Expert for Breach17.3 The Independent Expert may terminate this Agreement if AEMO fails to pay an undisputed invoice

within 30 days of receiving notice of failure to pay the invoice in accordance with clause 7.

Termination by AEMO for Convenience17.4 AEMO may terminate this Agreement without cause by giving the Independent Expert 30 days’ notice.

Consequences of Termination17.5 On termination of this Agreement:

(a) all Assignments terminate on the same date that this Agreement terminates;

(b) the Independent Expert must deliver to AEMO all Deliverables promptly, regardless of whether they are complete; and

(c) AEMO must pay the Independent Expert for Services satisfactorily performed in accordance with this Agreement and any Agreed Expenses up to the date of the notice of termination on receipt of a proper invoice.

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18 Notices18.1 A notice, approval, consent, agreement, or other communication (communication) required by this

Agreement must be:

(a) in writing;

(b) given by, or to the Representatives nominated for this purpose in the Details; and

(c) left at, or sent by ordinary pre-paid post or electronic message to, the address, number or email address specified in the Details.

18.2 Unless a later time is specified in it, a communication takes effect from the time it is received.

18.3 A communication is taken to be received:

(a) in the case of a posted letter, on the 5th day after posting; and

(b) in the case of an electronic message, at the time shown in a report by the computer from which the electronic message was sent, indicating that the message was delivered in its entirety to the electronic mail address of the recipient.

19 MiscellaneousAssignment & Subcontracting19.1 The Independent Expert must not assign, transfer, novate or encumber its rights or obligations under

this Agreement or declare itself a trustee in relation to this Agreement without first obtaining AEMO’s consent.

19.2 The Independent Expert must not subcontract the performance of any Services without AEMO’s approval. The AEMO Contact may give AEMO’s approval subject to conditions. Such an approval does not relieve the Independent Expert of any of its obligations under this Agreement.

Waiver 19.3 A right may only be waived in writing, signed by the party giving the waiver and:

(a) no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right, or otherwise prevents the exercise of the right;

(b) a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and

(c) the exercise of a right does not prevent any further exercise of that right or of any other right.

Amendment19.4 An amendment to this Agreement will be effective only if made in writing and signed by the parties.

Approvals and Consent19.5 AEMO may exercise its rights, remedies or powers in any way it considers appropriate.

Remedies Cumulative19.6 A party’s rights, powers and remedies under this Agreement are in addition to the rights, powers or

remedies provided by Law.

Indemnities19.7 Any indemnities in this Agreement are continuing obligations, independent from the parties’ other

obligations under this Agreement and continue after this Agreement ends. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this Agreement.

Severance19.8 If a provision of this Agreement is void, unenforceable, or illegal in a jurisdiction, it is severed for that

jurisdiction. The remainder of this Agreement remains effective and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause 19.8 has no effect if the severance alters the basic nature of this Agreement or is contrary to public policy.

Counterparts19.9 This Agreement may consist of a number of copies, each signed by one or more parties to this

Agreement. If so, the signed copies make up one document and the date of this Agreement will be the date on which the last counterpart was signed.

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Entire Agreement19.10 This Agreement constitutes the entire agreement of the parties about its subject matter and supersedes

any previous agreements, understandings and negotiations on that subject matter.

Survival19.11 Clauses 5.3, 9-12 and 16-20 survive the end of this Agreement.

20 Governing Law20.1 This Agreement is governed by the Law in force in the place specified in the Details. Each party

submits to the non-exclusive jurisdiction of the courts of that place.

EXECUTED as an agreement

SIGNED by #16# as authorised representative for #1# Pty Ltd in the presence of:

..............................................................................Signature of witness

..............................................................................Name of witness (block letters)

..............................................................................Address of witness

..............................................................................Occupation of witness

)))))))))))))))

..............................................................................By executing this agreement the signatory warrants that the signatory is duly authorised to execute this agreement on behalf of #1#

Date: .......................................................

SIGNED by #17# as authorised representative for Australian Energy Market Operator Limited in the presence of:





)))))))))))))))))

..............................................................................By executing this agreement the signatory warrants that the signatory is duly authorised to execute this agreement on behalf of Australian Energy Market Operator Limited

Date: .......................................................

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Schedule1 Services

From time to time, AEMO may require the Independent Expert to determine matters related to compensation payable following the issue of a direction. The Services will comprise one or more of the following Determinations to be made under the NER:

Determination Description NER Reference

1 An affected participant’s adjustment claim or market customer’s additional claim as a result of a direction, whereby the claim exceeds the prescribed threshold.

3.12.2(l)

2 An affected participant’s adjustment claim or market customer’s additional claim as a result of a direction, if AEMO considers such a claim to be unreasonable.

3.12.2(m)

3 A ‘fair market price’ for services provided by a Directed Participant under a direction.

3.15.7A(b1)

4 A claim for ‘additional compensation’ by a Directed Participant under clause 3.15.7B(a), (a1) or (a2) of the NER as a result of a direction, whereby the claim exceeds the prescribed threshold.

3.15.7B(c)

5 A claim for ‘additional compensation’ by a Directed Participant under clause 3.15.7B(a), (a1) or (a2) of the NER as a result of a direction, if AEMO considers such a claim to be unreasonable.

3.15.7B(d)

6 A restriction demand reduction claimed by each Market Customer in a region.

3.12A.7(g)

Following the issue of a direction or the conclusion of a mandatory restriction period (as applicable) , AEMO may provide the Independent Expert with a Brief detailing which Determination(s) AEMO requires the Independent Expert to make and the Independent Expert must respond to the Brief. AEMO will then confirm whether it will engage the Independent Expert by forwarding an Assignment to the Independent Expert.

2 Deliverables

For the avoidance of doubt, the provision of the Services includes provision of the following Deliverables:

Determination

Deliverables Description

1 Draft Report & Draft Assessment(s)

Prepare: a Draft Report containing the matters referred to in clause

3.12.3(c)(1)(i)(A) & (C) of the NER; one or more assessments of the amount of compensation

payable or to be paid (Draft Assessment(s)), as referred to in clause 3.12.3(c)(1)(ii) of the NER; and

a call for submissions, as contemplated under clause 3.12.3(c)(2) of the NER.

Delivery Deliver the: Draft Report to AEMO; and Draft Assessment(s) to each Referred Affected Participant and

Referred Market Customer and to AEMO along with the call for submissions,

as contemplated by clause 3.12.3(c)(1) & (2) of the NER.

Meeting If requested by any of the Referred Affected Participants and Referred Market Customers, meet with them to discuss their queries, as contemplated by clause 3.12.3(c)(3)(i) of the NER.

Final Report & Following any Meeting and after taking into account any submissions

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Determination


Final Assessment(s) received under clause 3.12.3(c)(3) of the NER, finalise: the Draft Report; and the Draft Assessment,as contemplated by clause 3.12.3(c)(4) of the NER.

Delivery Deliver the: Final Report to AEMO; and Final Assessments to each Referred Affected Participant and

Referred Market Customer and to AEMO,as contemplated by clause 3.12.3(c)(4) of the NER.



3.12.3(c)(1)(i)(A) & (C) of the NER; one or more assessments of the amount of compensation

payable or to be paid (Draft Assessment(s)), as referred to in clause 3.12.3(c)(1)(ii) of the NER; and

a call for submissions contemplated under clause 3.12.3(c)(2) of the NER.

Delivery Deliver the: Draft Report to AEMO; and Draft Assessments to each Referred Affected Participant and

Referred Market Customer and to AEMO along with the call for submissions,

as contemplated by clause 3.12.3(c)(1) & (2) of the NER.

Meeting If requested by any of the Referred Affected Participants and Referred Market Customers, meet with them to discuss their queries, as contemplated by clause 3.12.3(c)(3)(i) of the NER.

Final Report & Final Assessment(s)

Following any Meeting and after taking into account any submissions received under clause 3.12.3(c)(3) of the NER, finalise: the Draft Report; and the Draft Assessment,as contemplated by clause 3.12.3(c)(4) of the NER.

Delivery Deliver the: Final Report to AEMO; and Final Assessments to each Referred Affected Participant and

Referred Market Customer and to AEMO,as contemplated by clause 3.12.3(c)(4) of the NER.

3 Draft Report After taking into consideration the matters referred to in clause 3.15.7A(c)(1) of the NER, prepare a: Draft Report containing the matters referred to in clause

3.15.7A(c)(2); and Request for submissions from interested parties, as

contemplated by clause 3.15.7A(c)(2).

Delivery Deliver the Draft Report and request for submissions to AEMO, as contemplated by clause 3.15.7A(c)(2) of the NER.

Final Report After taking into account any submissions received under clause 3.15.7A(c)(3) of the NER, finalise the Draft Report as contemplated by clause 3.15.7A(c)(3) of the NER.

Delivery Deliver the Final Report to AEMO, as contemplated by clause 3.15.7A(c)(3) of the NER.



3.12.3(c)(1)(i)(B) & (C) of the NER;

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Determination


one or more assessments of the amount of compensation payable or to be paid (Draft Assessment(s)), as referred to in clause 3.12.3(c)(1)(iii) of the NER; and


Delivery Deliver the: Draft Report to AEMO; and Draft Assessment(s) to each Referred Directed Participant and to

AEMO along with the call for submissions,as contemplated by clause 3.12.3(c)(1) & (2) of the NER.

Meeting If requested by any of the Referred Directed Participants, meet with them to discuss any queries, as contemplated by clause 3.12.3(c)(3)(i) of the NER.


Following any Meeting and submissions received under clause 3.12.3(c)(3) of the NER, finalise the Draft Report and Final Assessment(s) as contemplated by clause 3.12.3(c)(4) of the NER.

Delivery Deliver the: Final Report to AEMO; and Final Assessments to each Referred Directed Participant and to

AEMO,as contemplated by clause 3.12.3(c)(4) of the NER.



3.12.3(c)(1)(i)(B) & (C) of the NER; one or more assessments of the amount of compensation

payable or to be paid (Draft Assessment(s)), as referred to in clause 3.12.3(c)(1)(iii) of the NER; and


Delivery Deliver the: Draft Report to AEMO; and Draft Assessment(s) to each Referred Directed Participant and to

AEMO along with the call for submissions,as contemplated by clause 3.12.3(c)(1) & (2) of the NER.

Meeting If requested by any of the Referred Directed Participants, meet with them to discuss any queries, as contemplated by clause 3.12.3(c)(3)(i) of the NER.


Following any Meeting and submissions received under clause 3.12.3(c)(3) of the NER, finalise the Draft Report and Final Assessment(s) as contemplated by clause 3.12.3(c)(4) of the NER.

Delivery Deliver the: Final Report to AEMO; and Final Assessments to each Referred Directed Participant and to

AEMO,as contemplated by clause 3.12.3(c)(4) of the NER.

6 Statement of Principles & Estimated Costs and Fees

Prepare: a ‘statement of principles’ to be followed in determining the

restriction demand reduction of Market Customers (Statement of Principles), as contemplated by clause 3.12A.7(i)(1) of the NER;

an estimate of the Independent Expert’s costs and fees, contemplated by clause 3.12A.7(i)(2) of the NER; and

a request for each Market Customer to provide details of the restriction demand reduction and any additional information required, as contemplated by clause 3.12A.7(i)(3) of the NER.

3

Determination


Delivery Deliver the: Estimated Costs and Fees to AEMO, as contemplated by clause

3.12A.7(i)(2) of the NER; Statement of Principles, request for further details and an offer to

meet with each Market Customer to each Market Customer, as contemplated by clause 3.12A.7(i)(3) & (4) of the NER.

Draft Report & Draft Statement(s)

Prepare a: Draft Report, as contemplated by clause 3.12A.7(i)(5) of the

NER, containing the matters referred to in clause 3.12A.7(i)(6); and

Draft Statement(s), as contemplated by clause 3.12A.7(i)(5) of the NER, containing the matters referred to in clause 3.12A.7(i)(7).

Delivery Deliver: the Draft Report to AEMO; and a Draft Statement to each Market Customer, as contemplated by clause 3.12A.7(i)(5).

Consultation Consult with Market Customers, as contemplated by clause 3.12A.7(i)(4) & (8) of the NER.

Final Report & Final Statement(s)

Following Consultation, finalise: the Draft Report, as contemplated by clause 3.12A.7(i)(8) of the

NER containing the matters referred to in clause 3.12A.7(i)(6); and

each Draft Statement, as contemplated by clause 3.12A.7(i)(8) of the NER containing the matters referred to in clause 3.12A.7(i)(7).

Delivery Deliver: the Final Report to AEMO; and a Final Statement to each Market Customer, as contemplated by clause 3.12A.7(i)(8).

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Attachment 1 – Brief

[on AEMO letterhead]

[Addressed to the Independent Expert Contact]

BriefThis is a Brief under the Independent Expert Agreement dated XXX.

AEMO issued a direction on [insert date] requiring the provision of energy/other services [delete as appropriate] in the NEM. As a consequence, compensation may be payable to one or more Market Participants.

Please indicate whether you are in a position to provide the following Services:

1 Services Determination NER Reference Affected Participants

1 3.12.2(l)

2 3.12.2(m)

3 3.15.7A(b1)

4 3.15.7B(c)

5 3.15.7B(d)

6 3.12A.7(g)

[Delete rows as appropriate]

2 Nominated PersonnelAEMO requests that the Services be performed by: [insert name]

3 Conflict of InterestsPlease confirm whether this proposed Assignment will give rise to any conflict of interests as contemplated by the Independent Expert Agreement. If so, please provide details.

4 DeliverablesThe proposed Assignment contemplates the provision of the following Deliverables to the parties detailed in the table below:

Determination Deliverable Recipient

1 Draft Report AEMO

Draft Assessment(s) [insert name of participant – one for each participant] and AEMO

Final Report AEMO

Final Assessment(s) [insert name of participant - one for each participant] and AEMO

2 Draft Report AEMO


Final Report AEMO


3 Draft Report AEMO

Final Report AEMO

4 Draft Report AEMO


Final Report AEMO

5



5 Draft Report AEMO


Final Report AEMO


6 Statement of Principles [insert name of participant – one for each participant] and AEMO

Estimate of Fees and Costs

AEMO

Draft Report AEMO

Draft Statement(s) [insert name of participant – one for each participant] and AEMO

Final Report AEMO

Final Statement(s) [insert name of participant - one for each participant] and AEMO


5 Intervention Settlement Timetable Attached is a copy of the latest intervention settlement timetable indicating when each of the Deliverables is required to be delivered.

Please confirm that you are in a position to meet the contemplated deadlines for the delivery of each Deliverable as indicated in the latest intervention settlement timetable.

6 Assignment FeePlease provide AEMO a fixed price for providing the Services, plus any proposed Expenses.

7 Confidentiality Deed PollIf you are in a position to provide the Services detailed in this Brief and there is no conflict of interests, please return a completed and executed Confidentiality Deed Poll with your Response to Brief.

Capitalised terms are defined in the Independent Expert Agreement and italicised terms are defined in the National Electricity Rules.

Yours faithfully,

[AEMO Contact]

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Attachment 2 – Response to Brief

[on Independent Expert’s letterhead]

[Addressed to the AEMO Contact]

Response to Brief dated XXXThis is our response to your Brief under the Independent Expert Agreement dated XXX.

We confirm that we can provide the Services as detailed in your Brief on the following basis:

1 Nominated PersonnelThe Services will be performed by [insert name]. That person will be available to complete the Services in accordance with the Independent Expert Agreement.

2 Changes to Intervention Settlement TimetableWe require the following changes:

OR

We do not require any changes to the Intervention Settlement Timetable provided with your Brief.

3 Conflict of InterestsWe confirm that we have no conflict of interests and can provide the Services as detailed in the Brief.

OR

We confirm that we have the following conflict of interests and can provide the Services detailed in the Brief, subject to the following arrangements:

Nature of Conflict Proposed Arrangements

[delete as appropriate]

4 Assignment Fee & Agreed Expenses [delete as appropriate]

The Assignment Fee will be fixed at $ We propose the following as Agreed Expenses:

Item Rate

5 Confidentiality Deed PollWe attach the executed Confidentiality Deed Poll.

Capitalised terms are defined in the Independent Expert Agreement.

Yours faithfully,

[Independent Expert Contact]

7

Attachment 3 – Assignment [on AEMO letterhead]

[Addressed to the Independent Expert Contact]

AssignmentThis is an Assignment under the Independent Expert Agreement between the Australian Energy Market Operator Limited and #2# commencing [insert Commencement Date]:

1 Services

Determination NER Reference Affected Participants

1 3.12.2(l)

2 3.12.2(m)

3 3.15.7A(b1)

4 3.15.7B(c)

5 3.15.7B(d)

6 3.15.7B(d)


2 Nominated Personnel: [insert name] 3 Deliverables


1 Draft Report AEMO


Final Report AEMO


2 Draft Report AEMO


Final Report AEMO


3 Draft Report AEMO

Final Report AEMO

4 Draft Report AEMO


Final Report AEMO


5 Draft Report AEMO


9


Final Report AEMO


6 Draft Report AEMO

Draft Statement(s) [insert name of participant – one for each participant] and AEMO

Final Report AEMO

Final Statement(s) [insert name of participant - one for each participant] and AEMO


4 Intervention Settlement Timetable

The Deliverables will be provided in accordance with the attached intervention settlement timetable.

5 Assignment Fee & Agreed Expenses [delete as appropriate]We agree that the Assignment Fee will be fixed at $

We agree to the following as Agreed Expenses:

Item Rate

This Assignment incorporates clauses 1 and 5 to 20 of the Independent Expert Agreement and the provision of the Services by the Independent Expert to AEMO is subject to those terms.

This Assignment is agreed by the signatories below, each of whom confirms that they are duly authorised to execute this document.

Signed by AEMO

………………………………………………….(signature)

…………………………………………….………(name)

………………………………………….…………(title)

………………………………………….…………(date)

Signed by Independent Expert

…………………….…………………………(signature)

………………….…………………………………(name)

………………….…………………………………(title)

………………………………………….…………(date)

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Attachment 4 – Confidentiality Deed Poll

To: Australian Energy Market Operator Limited ABN 94 072 010 327 of Level 22, 530 Collins Street, Melbourne VIC 3000 (AEMO)

I, [name of signatory], of [address of signatory] agree that:

Independent Expert Agreement1. I have read the Independent Expert Agreement between AEMO and #1# dated [insert date] and

understand the nature of #1#’s obligations to AEMO.

Confidential Information2. I will not, without AEMO’s consent, disclose any confidential information to anyone outside of

AEMO or #1#.

3. I will not use any confidential information for any purpose other than in the delivery of the Services and the proper performance of the Independent Expert Agreement.

4. If I am uncertain as to whether any information is confidential information, I will treat it as confidential information, unless AEMO advises me to the contrary.

General5. Clause 1 of the Independent Expert Agreement applies to this document.

EXECUTED as a Deed Poll in the presence of:





))))))))))))

..............................................................................

Date of signing: ……………………………………

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