Opinion
No. Civ. S-01-0238 FCD/JFM
February 23, 2001
STIPULATION AND ORDER
WHEREAS certain of the parties to this litigation have entered into agreements relating to the relief requested in the motions currently pending before this Court,
IT IS HEREBY STIPULATED AND AGREED THAT:
1. The temporary restraining order currently in effect will expire as of 5:00 p.m. on February 23, 2001 or the date of execution by the Court of this Stipulation and Order, whichever is earlier. In the event this Stipulation and Order is not executed by the Court as of 5:00 p.m. on February 23, 2001, Plaintiff California Independent System Operator withdraws its consent thereto.
2. The Reliant Defendants, Williams, and Dynegy (collectively "Generator Defendants") will comply with emergency dispatch orders of the California ISO under the terms of the ISO tariff without regard to whether ISO allocates the cost of power produced in response to such a dispatch order to a creditworthy Scheduling Coordinator until the earlier of the following:
(a) 5:00 p.m. Pacific Standard Time on March 19, 2001, or
(b) two business days (but in no event less than 48 hours) after written notice to this Court and the parties by a Generator Defendant that this stipulated obligation is terminated as to it.
3. Notice of termination by a Generator Defendant of its obligation under paragraph 2(b) shall not affect the stipulated obligations or remaining Generator Defendants except that, on receipt of such notice, each remaining Generator Defendant shall have the right to file with the Court an election terminating its obligation. In the event of such an election, the obligation of a terminating Generator Defendant to comply with ISO dispatch orders imposed by paragraph 2 shall end 48 hours after written notice to ISO of the election to terminate. Each terminating Generator Defendant shall have the same right and status to participate in any legal proceedings that follow the initial notice of termination, including any appeal.
4. The motions heard by this Court on February 16, 2001, including ISO's motion for preliminary injunction, Reliant's motion to dismiss or stay pursuant to the FERC order, and DWR's motion to dismiss Reliant's third party complaint, will be deemed submitted at 5:00 p.m. on March 16, 2001, or at 5:00 p.m. on the day written notice of termination of the obligation stipulated in paragraph 2 is filed with the Court, whichever is earlier.
5. No further discovery or motions related to claims heretofore asserted may be initiated in this action prior to the submission under paragraph 4 other than a motion to enforce the terms of this Stipulation and Order.
6. The deadlines for filing all responsive pleadings (including but not limited to DWR's answer to Reliant's third-party complaint, which deadline becomes applicable only if DWR's motion to dismiss is denied; ISO's answer or response to Reliant's counterclaims; and Dynegy's and Williams' answers or responses to the complaint) shall be extended until 30 days after the date of submission specified in paragraph 4.
7. The parties will file a joint status conference statement on Friday, March 9, 2001, and will appear before the Court for a further status conference on Friday, March 16 at 1:30 p.m.
8. This stipulation is the result of compromise and shall not be construed as an admission by any party concerning the merits of any other party's claims and/or defenses. The parties' obligations under this stipulation are expressly subject to all other rights and remedies the parties may have, including, but not limited to, the right to seek orders by the Federal Energy Regulatory Commission with respect to a generator's obligation under the ISO tariff to respond to an emergency dispatch order if the ISO does not have a creditworthy scheduling coordinator to which all of the costs associated with the emergency dispatched power can be allocated.