ࡱ> QSP /bjbjWW :D==$&: D PPPddd8$4d/3(2222222$47|2P2PP22|PP22-0 y*LR/(r22</3z/8v8P08P0X  %22td/38 :  STANDARD Form Bidder Conditions The Bidders offer to provide standard offer service [TOU offer service] at the prices described in its Bid Price Proposal is made subject to the acceptance by the Commission of the following conditions as expressly stated herein, without modification except upon the written agreement of the Bidder. The Commissions order designating the Bidder as a standard offer provider [TOU offer provider] (the Provider) shall expressly incorporate each of the conditions stated herein (the Order). Upon such acceptance and designation, the Bidders resulting rights and obligations as Provider shall consist of (i) the applicable and material provisions of fb88 law and regulations, and provisions of the RFP; (ii) the Order, incorporating the express conditions of this Bid Price Proposal; and (iii) the Standard Offer Provider Standard Service Agreement [TOU Offer Service Provider Standard Service Agreement] described below (collectively, the Standard Offer Obligation [TOU Offer Service Obligation]). In the event of any conflict or inconsistency between the terms and conditions of the Order and any other terms and conditions described above, the terms and provisions of the Order shall prevail and be given priority. Subject to the foregoing, the several documents and instruments forming the Standard Offer [TOU Offer Service] Obligation are to be taken as mutually explanatory of one another and in the case of ambiguities or discrepancies within or between such parts the same shall be explained and interpreted, if possible, in a manner which gives effect to each part and which avoids or minimizes conflicts among such parts. Bid Price Proposal Expiration Date. The Bidders Bid Price Proposal shall remain effective and binding until the close of business on [________, _______ __, 20__]. If Bidder receives the Commissions Order (in redacted form deleting the name(s) of other winning bidders) designating the Bidder as the Provider before the close of business on [same date as above], T&D and Bidder shall, no later than [two days later,] 20__, execute final, definitive documentation regarding the Standard Offer [TOU Offer Service] Obligation and any other obligations awarded to the Bidder by the Commission (such documentation to be substantially in the form agreed to by the Bidder, T&D and the Commission prior to the submission of Bidders Bid Price Proposal and containing subsequent non-substantive changes mutually agreed upon by the Bidder, T&D and Commission). Confidentiality of Bidder Identification. The Commission agrees not to reveal the identity of the Bidder (except to the T&D utilities) prior to the date that is two (2) weeks after the date of the Order designating Bidder as Provider. Increased Costs Associated With Change in Law. If the fb88 legislature or the Commission enacts, promulgates, adopts, alters, modifies or waives any law, rule or regulation that relates to the provision of standard offer service [TOU offer service] or the provision of competitive electric service in general after the date hereof, or if the definition of rate classes, as presently defined by each T&D, changes (a "Change in Law") and such Change in Law materially increases the Providers cost to provide standard offer service [TOU offer service], Provider shall recover such increased costs in accordance with paragraph (a) or paragraph (b) below, as applicable. Provider shall provide the Commission and, if applicable, the fb88 Legislature with a calculation of its increased costs as soon as practicable after becoming aware of a Change in Law or consideration by the Commission or the fb88 Legislature of a Change in Law. (a) If the Commission finds that Providers calculation reasonably reflects its increased costs, the Commission shall increase the price of standard offer service [TOU offer service] paid by retail standard offer [TOU offer service] customers at the time a Change in Law becomes effective or take other action so that Provider recovers increased costs in accordance with Providers calculation. (b) If the Commission does not find that Providers calculation reasonably reflects its increased costs, the Commission may increase the price of standard offer service [TOU offer service] paid by retail customers or take other action such that Provider recovers increased costs in accordance with the Commissions calculation. In this event, Provider may invoke binding arbitration of the increased cost amount by notice to the Commission. Any such arbitration shall be conducted in accordance with the rules of the American Arbitration Association, except as otherwise provided herein. A final arbitration decision shall be rendered no later than ninety (90) days after the date on which Provider provides notice to the Commission that it has invoked arbitration. From and after the date of Providers arbitration notice and until the conclusion of any such arbitration proceeding pursuant to final decision of the arbitrators, Provider may recover from the T&D the difference between the increased cost amount as calculated by Provider and the amount being paid to Provider in respect of such increased costs. If the amount awarded pursuant to such arbitration is materially less than the amount recovered by Provider from the T&D in respect of the Change in Law during the pendency of the arbitration, Provider shall refund such difference to the T&D, together with interest on such difference calculated at a rate equal to the lesser of (i) eighteen percent (18%), and (ii) the maximum rate permitted by applicable law. Notwithstanding the foregoing, if upon receipt of reasonable prior direct notification of a proposed Change in Law, Provider fails within the time prescribed in such notice to inform the fb88 Legislature or the Commission, pursuant to applicable procedures identified in such notice, of the impact that a Change in Law under consideration would have on Providers cost to provide standard offer service [TOU offer service], Provider shall not be entitled to cause the Commission to undertake action with respect to its increased costs or to engage in arbitration proceedings with respect thereto as provided in clause (a) or (b) above.. Termination by Provider. In the event of a default on the part of the T&D which results in termination of the SOP [TOU Offer Service] Agreement, or an unlawful or arbitrary action by the fb88 Legislature or the Commission or other action by the Commission (other than as a result of a Provider Default) as a result of which Provider ceases to receive payment for standard offer service [TOU offer service] at the rate and upon the terms specified herein or Provider is removed as the standard offer [TOU offer service] provider or ceases to retain the right to provide standard offer service [TOU offer service] for the entire term specified herein, Provider shall have the right (among other remedies if applicable) to terminate its obligation to provide standard offer service [TOU offer service], the exercise of which shall terminate all of Providers SOP [TOU Offer Service] Obligations. The parties payment of termination damages in the event of such a termination shall be calculated and recovered pursuant to the relevant liquidation provisions of the SOP [TOU Offer Service] Agreement. For purposes of such calculation, Providers loss shall not include any consequential or indirect damages. Termination by Commission. The unexcused occurrence of either of the following events shall constitute a Provider Default: (i) Provider fails to satisfy its Load Asset obligations for the applicable Load Assets in the ISO-NE market settlement system (or its equivalent obligations in any successor market settlement system), as a result of which the T&D or other third party is obligated to assume responsibility for all such market settlement obligations; or (ii) Provider fails to perform any other of its material obligations under the Standard Offer [TOU Offer Service] Obligation in accordance with the requirements thereof, and the Commission, after notice and opportunity to be heard, finds that the failure justifies removal of Provider as the standard offer [TOU offer service] provider, and all Providers SOP [TOU Offer Service] Obligations shall terminate. In the event of a Provider Default, the T&D (subject to the Commissions approval) shall have the right (among other remedies if applicable) to terminate its obligation to accept standard offer service [TOU offer service], the exercise of which shall terminate all of the T&Ds obligations under the SOP [TOU Offer Service] Agreement. The parties payment of termination damages in the event of such a termination shall be calculated and recovered pursuant to the relevant liquidation provisions of the SOP [TOU Offer Service] Agreement. Notwithstanding any provision to the contrary in the Standard Offer [TOU Offer Service] Obligation, the Commission shall not, nor shall it permit the T&D to, take any remedial action against the Provider or the Provider Guarantor (as such term is defined in the SOP [TOU Offer Service] Agreement) as a result of a failure or default of Provider (including action(s) described in Section 8.2 of the RFP and Section 9 of Chapter 301) unless such event constitutes a Provider Default. Security: The Commission shall find that the [guaranty forms or Letter of Credit] (from [ ]) delivered to the Commission with the Bid Price Proposal satisfy Providers initial financial capability requirements under fb88 law, regulations, the RFP and any other Standard Offer [TOU Offer Service] Obligation provision (notwithstanding a Change in Law).  Except for opt-out fee waivers granted by the Commission pursuant to its January 24, 2001 "Order Adopting Rule and Statement of Factual and Policy Basis" (Docket No. 2000-904).      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