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HomeMy WebLinkAbout9-23-2003-11.06 - Resolution - 09/23/2003RESOLUTION NO. 9 -23- 2003 -11.06 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS, APPROVING A CONSTRUCTION CONTRACT FOR THE ZONE 10 NEIGHBORHOOD PARK SITE DEVELOPMENT PROJECT AND AUTHORIZING THE EXPENDITURE OF FUNDS. WHEREAS, the City of College Station, Texas, solicited bids for the construction phase of the Zone 10 Neighborhood Park Site Development Project; and WHEREAS, the selection of Orion Construction is being recommended as the lowest responsible bidder for the construction services related to the Zone 10 Neighborhood Park Site Development; now, therefore, BE IT RESOLVED by the City Council of the City of College Station, Texas: PART 1: That the City Council hereby finds that Orion Construction is the lowest responsible bidder. PART 2: That the City Council hereby approves the contract with Orion Construction for $237,033.27 including the Total Base Bid 1 -A and 1 -B plus Alternate #1, for the labor, materials and equipment required for the improvements related to the Zone 10 Neighborhood Park Site Development Project and for installation of utility conduits to serve future development. PART 3: That the funding for this Project shall be as budgeted from the Fiscal Year 2003 Zone 10 Park Land Dedication Capital Improvement Project Fund in the amount of $160,728.00; and from the Electrical Fund in the amount of $76,305.27. PART 4: That this resolution shall take effect immediately from and after its passage. ADOPTED this 23 day of September, A.D. 2003. CONNIE HOOKS, City Secretary APPROVED: City Attorney nr ??: 4???? G'+C? t? l?} v1f? i?? APPROVED: 6---Ns' RON S`I'I,V • , Mayor refusal ( "Notice of Refusal ") to accept such change, condition, or modification. In the event TMPA or College Station states its refusal to accept such change, condition, or modification, then TMPA and College Station agree to promptly meet and negotiate in good faith to see if they can agree upon modifications necessary to obtain Commission approval which would maintain as nearly as practicable the economic bargain reached in the Agreement by TMPA and College Station. If no such agreement can be reached and filed with the Commission within twenty (20) days of the Notice of Refusal, then (1) this Agreement shall be null and void, (2) TMPA shall promptly refund the Consideration to College Station, and (3) in the event TMPA institutes an action or actions against College Station for recovery for Wholesale Transmission Services, College Station agrees not to assert any defense thereto based upon statute of limitations, repose, laches, estoppel, waiver, or otherwise based on the passage of time (including but not limited to retroactive ratemaking). If a modified settlement agreement is reached and filed with the Commission as provided herein, then that modified settlement shall likewise be subject to the same provisions of this article 4, including 4.3. 4.4 Nothing contained herein shall be construed as abrogating the right of any party to seek rehearing or to seek judicial review in accordance with the provisions of the Federal Power Act or other applicable statute regarding any condition or modification imposed by the Commission in its order approving this Agreement. ARTICLE 5 GENERAL RESERVATIONS 5.1 Declaration of Privilege. This Agreement is submitted pursuant to Rule 602 of the Commission's Rules of Practice and Procedure and shall be privileged and shall not be admissible in evidence in any proceeding, state or federal, judicial or 30503276.1 16 administrative or otherwise, against any participant except as may be necessary to enforce the terms hereof. 5.2 Compromise. It is specifically understood and agreed that this Agreement represents a negotiated settlement in the public interest with respect to the matters addressed in this Agreement for the sole purpose of the settlement of such matters agreed to herein. Neither TMPA, College Station, or the Commission or its Staff, nor any other participant or person shall be prejudiced or bound thereby in any proceeding except as specifically provided herein. Neither TMPA, College Station, or the Commission or its Staff, nor any other participant or person shall be deemed to have approved, accepted, agreed, or consented to any concept, theory, or principle underlying or supposed to underlie any of the matters provided for herein or to be prejudiced thereby in any future proceeding. 5.3 Settled Practices. The participants agree that the resolution of any matter in this Agreement shall not be deemed to be a "settled practice" as that term was interpreted and applied in Public Serv. Comm'n v. FERC, 642 F.2d 1335 (D.C. Cir. 1 980), cert. denied, 454 U.S. 879 (1981), and shall not be the basis for any decision with regard to the burden of proof in any litigation with regard to any such matter. 5.4 Approval of Agreement as Authorization. Commission approval of this Agreement shall constitute the requisite waiver of any and all otherwise applicable Commission regulations and the provisions of TMPA's Wholesale Electric Transmission Tariff to permit the implementation of the provisions of this Agreement and a determination that all of the terms and provisions hereof are fair, reasonable, and in the public interest. 30503276.1 17 5.5 Entire Agreement. This Agreement may not be changed, amended, or waived orally and, except for an automatic amendment of this Agreement as described in sec. 1.14 above, no change, amendment, or attempted waiver of any provision hereof shall be binding unless expressed in writing and signed by TMPA and College Station. 5.6 Successors. The rights and obligations of the parties under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of each party, as the case may be. 5.7 Headings and Construction. Headings are used herein solely for convenience and are not to be used in construing or interpreting this Agreement. All parties participated in the drafting of this Agreement. Accordingly, the parties agree that the normal rules of construction to the effect that any ambiguities in this Agreement are to be resolved against the drafting party shall not be used in the interpretation of this Agreement. 5.8 Governing Law. The laws of the State of Texas shall govern the construction and interpretation of this Agreement without regard to any conflict of laws principles. To the extent there is an issue of FERC practice, procedure or jurisdiction, the FPA shall control to the extent it is applicable. 5.9 Duplicate Originals and Counterparts. The parties may execute this Settlement in counterparts or one or more duplicate originals, each of which shall have equal dignity and effect. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the respective dates shown below. 30503276.1 18 Respectfully submitted, 30503276.1 21 211;3 1 Lambeth Townsend LLOYD, GOS SELINK, BLEVINS, ROCHELLE, BALDWIN & TOWNSEND, P.C. 111 Congress Avenue, #1800 Austin, TX 78701 (512) 322 -5800 Date Approved By: Connie Hooks, City Secretary City of College Station, Texas 19 Texas Municipal Power Agency Gary Pars General Manager Texas Municipal Power Agency Michael J. Manning Glenn S. Benson Letitia W. McKoy FULBRIGHT & JAWORSKI L.L.P 801 Pennsylvania Avenue, N.W. Washington, DC 20004 -2623 (202) 662 -4550 William B. Wagner James R. Bailey FULBRIGHT & JAWORSKI L.L.P 600 Congress Avenue Suite 2400 Austin, TX 78701 -3271 (512) 474-5201 Attorneys for the Texas Municipal Power Agency City of College Station, Texas Ron Si vi • Mayor City of College Station, Texas 30503276.1 Approved By: Harvey Car ' , Jr., City Afton).* City of College Station, Texas Stephen Fogel Joe N. Pratt BICKERSTAFF, HEATH, SMILEY, POLLAN, KEVER & MCDANIEL, L.L.P. 816 Congress Avenue, Suite 1700 Austin, Texas 78701 -2643 (512) 472 -8021 telephone (512) 320-5638 facsimile 20 Wallace L. Duncan Lisa S. Gast DUNCAN, WEINBERG, GENZER & PEMBROKE, P.C. 1615 M Street, N.W., Suite 800 Washington, D.C. 20036 -3203 (202) 467-6370 telephone (202) 467 -6379 facsimile Attorneys for the City of College Station, Texas Cu I" OF BRYAN and TEXAS MUNICIPAL POWER AGENCY, Plaintiff's, vs. Lit I' OF COLLEGE STATION and TEXAS UTILii itS ELECTRIC COMPANY, Defendants. 30500058.3 Cause No. 43,098 -85 -CV JOINT MOTION FOR SEVERANCE EXH1t3IT A IN i tt DISTRICT COURT OF BRAZOS COUNTY, TEXAS 85 JUDICIAL DISTRICT 1. Plaintiff, Texas Municipal Power Agency ( "TMPA ") and defendant the City of College Station ( "College Station ") file this joint motion to sever TMPA's causes of action brought against College Station from this lawsuit. 2. TMPA and the City of Bryan ( "Bryan ") brought suit against College Station and Texas Utilities Electric Company ( "TUEC "). The plaintiffs alleged causes of actions against College Station and TUEC. 3. TMPA now requests that the Court sever its claims against defendant College 8 Station. Severance is justified in this case because I'MPA and College Station have reached a settlement of all the claims and matters between them. 4. TMPA requests that the remaining claims that TMPA has against TUEC and that Bryan has against College Station and TUEC be docketed as Cause No. 43,098- 85 -CV -A and that the originals of all pleadings and orders remain or be placed in that cause number as set forth in the attached proposed Order of Severance. 5. TMPA requests that the claims it has against College Station be styled, "Texas Municipal Power Agency v. City of College Station" and be docketed as Cause No. 43,098-85 - CV-B, and that certified copies of certain listed pleadings and orders be placed in such docket as set forth in the attached proposed Order of Severance. TMPA and College Station pray that the Court grant this motion and all other relief to which they may be entitled. Respectfully submitted, FULBRIGHT & JAWORSKI L.L.P. By: Wm. B. Wagner State Bar No. 20661200 600 Congress Avenue, Suite 2400 Austin, Texas 78701 Telephone: 512-474-5201 Telecopier: 512-536-4598 Attorneys For Texas Municipal Power Agency BICKERSTAFF, HEATH, SMILEY, POLLAN, KEVER & McDANIEL, L.L.P. By: Stephen Fogel State Bar No. 07202010 816 Congress Avenue, Suite 1700 Austin, TX 78701 Telephone: (512) 472 -8021 Facsimile: (512) 320 -5638 Attorneys For City of College Station THE STATE OF TEXAS COUNTY OF TRAVIS 30500058.3 § § On this day, , 2003, the affiant appeared in person before me, a notary public, who knows the affiant to be the person whose signature appears on this document. According to the affiant's statements under oath, the affiant is counsel for Texas Municipal Power Agency, a party in this case; the affiant has read Texas Municipal Power Agency's Motion for Severance; and the information in said Motion is correct according to the affiant's personal knowledge. SUBSCRIBED AND SWORN TO before me on , 2003. - 3 - Wm. B. Wagner Notary Public in and for the State of TES MUNICIPAL POWER AGENCY, Plaintiff, Vs. Ci 1 OF COLLEGE STATION, Defendant. 30500058.3 Cause No. 43,098- 85 -CV -B ORDER GRAN t ING SEVERANCE IN THE DISTRICT COURT OF BRAZOS COUNTY, TEXAS 85 JUDICIAL DISTRICT The Court considered the Joint Motion of Texas Municipal Power Agency ( "TMPA ") and the City of College Station ( "College Station ") for a severance of TMPA's causes of action against College Station. The Court has decided to grant the motion. It is ORDERED that the causes of action brought by plaintiff TMPA against the defendant College Station are now severed from the original suit, and the Clerk is ordered to: (a) Docket the remaining claims that TIVEA has against TUEC and that Bryan has against College Station and TUEC as Cause No. 43,098- 85 -CV -A, and that the originals of all pleadings and orders remain or be placed in that cause number; (b) Docket the severed cause under No. 43,098- 85 -CV -B with the style, "Texas Municipal Power Agency, Plaintiff vs. the City of College Station, Defendant "; (c) Prepare certified copies of the following pleadings, papers, and orders and file them in the severed cause of action — Cause No. 43,098- 85 -CV -B: (1) Original Petition of Plaintiffs City of Bryan and Texas Municipal Power Agency; (2) Defendant College Station's Plea in Abatement and Original Answer; (3) The Joint Motion to Sever; and (4) This order of severance. It is ORDERED that all costs of making the certified copies ordered in parae,.. aph (c) above are taxed equally against TWA and College Station. SIGNED , 2003. APPROVED AND AGREED TO: FULBRIGHT & JAWORSKI L.L.P. By: Wm. B. Wagner State Bar No. 20661200 600 Congress Avenue, Suite 2400 Austin, Texas 78701 Telephone: 512- 474 -5201 Telecopier: 512 -536 -4598 Attorneys For Texas Municipal Power Agency BICKERSTAFF, HEATH, SMILEY, POLLAN, KEVER & McDANIEL, L.L.P. By: Stephen Fogel State Bar No. 07202010 816 Congress Avenue, Suite 1700 Austin, TX 78701 Telephone: (512) 472 -8021 Facsimile: (512) 320 -5638 Attorneys For City of College Station JUDGE PRESIDING TES MUNICIPAL POWER AGENCY, v. &_I I i OF COLLEGE STATION, AGREED FINAL JUDGMENT This case came before the Court for a final adjudication, the full names of the parties being as follows: Texas Municipal Power Agency ( "TMPA "), plaintiff; and the City of College Station ( "College Station "), defendant. TMPA and College Station appeared, waived trial by jury, and announced that all matters in controversy had been settled in accordance with that certain agreement filed with and approved by the Federal Energy Regulatory Commission, and that College Station has agreed to pay the sum of six million five hundred thousand dollars ($6,500,000) to TMPA. Such parties requested the Court enter a judgment to that effect and that all court costs be taxed against the parties incurring same. Such parties also had requested, by separate motion, a severance from any remaining claims in the original case, namely those claims brought by plaintiffs TMPA and the City of Bryan ( "Bryan ") against the remaining defendant Texas Utilities Electric Company ( "TUEC ") and the claims brought by the City of Bryan against College Station, and an order severing such matters has been entered to that effect. It is ORDERED, ADJUDGED AND DECREED that College Station pay the sum of six million five hundred thousand dollars ($6,500,000) to TMPA and that all costs of court be taxed 30499611.5 Plaintiff, Defendant, Cause No. 43,098- 85 -CV -B IN 1 in, DISTRICT COURT OF BRAZOS COUNTY, TEXAS 85 JUDICIAL DISTRICT against the parties incurring same, for which costs the Clerk may have execution if they are not paid in a timely fashion. It is FURTHER ORDERED, ADJUDGED AND DECREED that all relief not expressly t meted by this judgment is denied, whether the relief was requested or whether it could have been requested in this case, and that this is a final judgment. [The parties, in open court, waive the provisions of Rule 306a(4) of the Texas Rules of Civil Procedure, as amended.] SIGNED , 2003. APPROVED AND AGREED TO: FULBRIGHT & JAWORSKI L.L.P. By Wm. B. Wagner State Bar No. 20661200 600 Congress Avenue, Suite 2400 Austin, Texas 78701 -3271 Telephone: (512) 536 -4508 Facsimile: (512) 536 -4598 ATTORNEYS FOR TEXAS MUNICIPAL POWER AGENCY, P1a &'tiff 30499611.5 -2 PRESIDING JUDGE BICKERSTAFF, HEATH, SMILEY, POLLAN, KEVER & MCDAN tL, L.L.P. By: Stephen Fogel State Bar No. 07202010 816 Congress Avenue, Suite 1700 Austin, TX 78701 Telephone: (512) 472 -8021 Facsimile: (512) 320 -5638 ATTORNEYS FOR CITY OF COLLEGE STATION, Defendant City of College Station, Texas 45334793.1 FORM OF ORDER APPROVING SETTLEMENT UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Docket No. TX96 -2 -000, et al. ORDER APPROVING SETTLEMENT On July 9, 2003, the City of College Station, Texas and the Texas Municipal Power Agency (collectively "Settling Parties ") submitted for filing an Offer of Partial Settlement and Stipulation and Agreement ( "Settlement ") which will resolve all issues between them in Docket No. TX96 -2 -000, et al. The Settlement resolves matters covering the period from January 1, 1996 through December 31, 1999. The Settlement will not affect any of the current rates, terms and conditions of transmission service provided by TMPA to College Station. The Commission finds the Settlement to be fair and reasonable and in the public interest. The Commission, therefore, accepts and approves the Settlement as submitted. CERTIFICATE OF SERVICE I hereby certify that on this 8 day of July 2003, a copy of this filing, including the Offer of Partial Settlement And Stipulation and Agreement along with accompanying documents was sent via first class mail to all parties on the Commission's official service list in this docket. 30503276.1 21 Michael J. MaAing O/ group /legal /harvey /misc /2003/bryan settlement resolution.doc EXHIBIT 2 BRYAN SETTLEMENT DOCUMENTS City of College Station, Texas UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION 1 ) ) Docket No. TX96 -2 -000, et l. ) OFFER OF PARTIAL SETTLEMENT AND STIPULATION AND AGREEMENT Pursuant to Rule 602 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission ( "Commission" or "FERC "), 18 C.F.R. § 385.602 (2003), the City of Bryan, Texas (including Bryan Texas Utilities) and the City of College Station, Texas submit this Offer of Partial Settlement and Stipulation and Agreement to resolve by settlement all issues between the City of Bryan (including Bryan Texas Utilities) and College Station in these proceedings, which were initiated by College Station in its Amended Application for an Order Requiring Transmission Service pursuant to § 211 of the F ederal P ower A ct ( "FPA "). T his 0 ffer o f Partial S ettlement and S tipulation and Agreement does not resolve the issues in these proceedings between College Station and the Texas Municipal Power Agency ( "TMPA "). ARTICLE 1 DEFINITIONS 1.1 "The Agreement" means this Offer of Partial Settlement and Stipulation and Agreement. 1.2 "College S tation" m eans t he C ity o f C ollege S tation, T exas, a nd t he C ity's agents, employees, officers, managers (in their capacities only as employees, officers, or managers), and the Mayor and council members (in their capacities only as elected municipal officials). 1.3 "Bryan" means the City of Bryan, Texas, and Bryan Texas Utilities ( "BTU ") and the City's and BTU's agents, employees, officers, managers (in their capacities only as employees, officers, or managers), the Mayor and council members (in their capacities only as elected municipal officials), and the BTU board members (in their capacities only as board members). 1.4 "TXU" means Texas Utilities Electric Company, TXU Electric Company, or Oncor Electric Delivery Company, and further includes any other wholesale seller of electricity that succeeded TXU as the wholesale supplier of electric power and energy to College Station. 1.5 "Wholesale Transmission Services" means the use made by College Station of Bryan's transmission system to deliver to College Station electric power purchased by College Station from TXU for the period January 1, 1996 through December 31, 1999. 1.6 The "Terminated Proceedings" means and includes the following judicial proceedings: a. City of Bryan, Texas v. Public Util. Comm 'n, No. 97- 02587, District Court of Travis County, Texas, 200th Judicial District; and City of Bryan, Texas v. Public Util. Comm 'n, No. 97- 06940, District Court of Travis County, Texas, 53th Judicial District (both of which are Bryan's challenge to Public Utility Commission of Texas ( "PUC ") Docket No. 15296 Final Order setting rates for College Station to pay Bryan and TMPA); and 2 Par b. City of Bryan and Texas Municipal Power Agency v. Public Util. Comm 'n, No. 96- 03168, District Court of Travis County, Texas, 53rd Judicial District (Bryan's suit or claims to enjoin PUC in Docket No. 15296). 1.7 The "Brazos County Lawsuit" means the judicial proceeding styled as Texas Municipal Power Agency and City of Bryan v. City of College Station, et al., No. 43,098- 85, District Court of Brazos County, Texas, 85th Judicial District (Bryan's claims as plaintiff in trespass suit against College Station and TXU). 1.8 The "FERC Proceeding" means City of College Station, Texas, Docket N o. TX96 -2 -000, et al., before the Federal Energy Regulatory Commission (College Station's FPA sec. 211 application). 1.9 The "College Station Petition Proceeding" means the Petition of the City of College Station to Initiate an ERCOT- Wide Dispute Resolution Proceeding or, in the Alternative, D etermine Reasonable and C omparable Transmission R ates for the Texas Municipal Power Agency and the City of Bryan, Docket No. 25197, Before the Public Utility Commission of Texas (College Station's application for ERCOT -wide rates). 1.10 The "Related Proceedings" means the Terminated Proceedings, the FERC Proceeding, the College Station Petition Proceeding, and the Brazos County Lawsuit. 1.11 "Rate Orders" means the orders issued by the PUC setting rates for the wholesale transmission of electric power within ERCOT for 1997, 1998, and 1999, more formally cited as follows: • Regional Transmission Proceedings to Establish Postage Stamp Rate and Statewide Loadflow Pursuant to Subst. Rule 23.67, [Final] Order, Docket No. 15840 (Pub. Util. Comm'n of Tex. Aug. 11, 1997); . 3 • Proceeding to Modify ERCOT Transmission Rates for 1998 Pursuant to Substantive Rule 23.67, Order on Rehearing, Docket No. 18459 (Pub. Util. Comm'n of Tex. Sept. 17, 1998); and • Proceeding to Modify ERCOT Transmission Rates for 1999 Pursuant to Substantive Rule 23.67, Order on Rehearing, Docket No. 20381 (Pub. Util. Comm'n of Tex. Oct. 13, 1999). 1.12 "All Bryan Claims" means all existing, known, and unknown claims, demands, and causes of action, in law or equity, known or unknown, pending or threatened, for all existing, known, and unknown damages and remedies (1) that arise out of or relate to the Wholesale Transmission Services or (2) that have been brought or that could have been brought by or on behalf of Bryan against College Station in the Related Proceedings, or in any court, tribunal, or forum, in this or any other jurisdiction, in these United States or anywhere else with respect to any transaction, contract, representation, operations, conduct, action, or omission arising out of or with respect to the Wholesale Transmission Services. Under this definition, "All Bryan Claims" includes, BUT IS NOT LIMITED TO, all claims, demands, lawsuits, debts, accounts, covenants, agreements, actions, cross - actions, counterclaims, liabilities, obligations, losses, costs, expenses, remedies, and causes of action of any nature, whether in contract or in tort, or based upon fraud or misrepresentation, breach of duty or common law, or arising under or by virtue of any judicial decision, statute, or regulation, for past, present, future, known, and unknown i njuries, p roperty o r e conomic d amage, and a 11 o ther 1 osses and damages of any kind that arise out of the Wholesale Transmission Services, including BUT NOT LIMITED TO the following: all actual damages; all exemplary and punitive damages; all penalties of any kind, including WITHOUT LIMITATION any tax liabilities or penalties; damage to business reputation; lost profits or good will; consequential damages; damages ensuing from loss of credit; and, prejudgment and 4 postjudgment interest, costs, and attorney's fees. This definition further includes, BUT IS NOT LIMITED TO, all elements of damages, all remedies, and all claims, demands, and causes of action that are now recognized by law or equity or that may be created or recognized in the future by any manner, including WITHOUT LIMITATION by statute, regulation, or judicial decision, including WITHOUT LIMITATION by virtue of the Texas Deceptive Trade Practices - Consumer Protection Act arising out of or with respect to the Wholesale Transmission Services. 1.13 "All College Station Claims" means all existing, known, and unknown claims, demands, and causes of action, in law or equity, known or unknown, pending or threatened, for all existing, known, and unknown damages and remedies (1) that arise out of or relate to the Wholesale Transmission Services or (2) that have been brought or that could have been brought by or on behalf of College Station against Bryan in the Related Proceedings, or in any court, tribunal, or forum, in this or any other jurisdiction, in these United States or anywhere else with respect to any transaction, contract, representation, operations, conduct, action, or omission arising out of or with respect to the Wholesale Transmission Services. Under this definition, "All College Station Claims" includes, BUT IS NOT LIMITED TO, all claims, demands, lawsuits, debts, accounts, covenants, agreements, actions, cross - actions, counterclaims, liabilities, obligations, losses, costs, expenses, remedies, and causes of action of any nature, whether in contract or in tort, or based upon fraud or misrepresentation, breach of duty or common law, or arising under or by virtue of any judicial decision, statute, or regulation, for past, present, future, known, and u nknown i njuries, p roperty o r e conomic d amage, and a 11 o ther 1 osses and damages of any kind that arise out of the Wholesale Transmission Services, including 5 k BUT NOT LIMITED TO the following: all actual damages; all exemplary and punitive damages; all penalties of any kind, including WITHOUT LIMITATION any tax liabilities or penalties; damage to business reputation; lost profits or good will; consequential damages; damages ensuing from loss of credit; and, prejudgment and postjudgment interest, costs, and attorney's fees. This definition further includes, BUT IS NOT LIMITED TO, all elements of damages, all remedies, and all claims, demands, and causes of action that are now recognized by law or equity or that may be created or recognized in the future by any manner, including WITHOUT LIMITATION by statute, regulation, or judicial decision, including WITHOUT LIMITATION by virtue of the Texas Deceptive Trade Practices - Consumer Protection Act arising out of or with respect to the Wholesale Transmission Services. 1.14 The "Consideration" means the payment to Bryan of the sum of $2,200,000.00, together with the mutual covenants, promises, and releases contained in this Agreement. 1.15 "Closing Date" means the date five (5) business days after this Agreement has been executed by both Bryan and College Station, or if that day is not a business day, the next business day. 1.16 "Final Commission Order" means, when used in this Agreement to describe a decision or order of the Commission, that the decision or order is no longer subject to Commission consideration. Any order shall be deemed a "Final Commission Order" as of the date rehearing is denied, or the date on which the right to request such rehearing expires. 6 ARTICLE 2 SCOPE OF THE AGREEMENT In connection with the execution and delivery of this Agreement, the parties agree to the following: 2.1 On the Closing Date: a. College Station shall deliver the cash portion of the Consideration to Bryan by wire transfer payment using the following instructions: Bryan Texas Utilities c/o City Revenue Account #326952447 First American Bank, Bryan TX. ABA # 113193532 7 b. For the Consideration, Bryan RELEASES, ACQUITS, and FOREVER DISCHARGES College Station from All Bryan Claims that have accrued or may ever accrue to Bryan. This release does not extend to a person or entity other than College Station. c. For the Consideration, College Station RELEASES, ACQUITS, and FOREVER DISCHARGES Bryan from All College Station Claims that have accrued or may ever accrue to College Station. This release does not extend to a person or entity other than Bryan. 2.2 No later than on the closing date, College Station and Bryan will jointly file this Agreement (or such settlement as modified pursuant to sec. 4.3 below), along with the Explanatory Statement in Support of Offer of Partial Settlement and Stipulation and Agreement in the FERC Proceeding. College Station and Bryan agree to take all steps to support this Agreement and to seek approval of this Agreement by the Commission as soon as possible. In particular, and without limitation, to the extent the Commission k solicits comments on this Agreement, Bryan and College Station agree to jointly submit comments in support of this Agreement and to urge its prompt approval. 2.3 Within five (5) business days after the FERC approval of this Agreement without modification is final and non - appealable: Proceedings; a. Bryan will dismiss with prejudice its claims in the Terminated b. Bryan and College Station will jointly move that the Court in the Brazos County Lawsuit enter the Agreed Judgment substantially in the form of Exhibit "A" attached hereto; and c. College Station will file in the College Station Petition Proceeding all pleadings and other documents necessary to withdraw with prejudice its request (both the primary and alternate requests) that the PUC establish wholesale transmission rates for College Station to pay Bryan or for Bryan to pay College Station; College Station may, however, maintain its alternate request for relief as to TMPA and may maintain its primary request for relief to the extent it does not involve Bryan. 2.4 a. Bryan and College Station acknowledge the sufficiency of the Consideration by signing this Agreement. b. The parties agree and acknowledge that payment has previously been made for that portion of the Wholesale Transmission Services provided during calendar year 1996 under the rate set by the PUC in its Docket 15296. The parties further agree and acknowledge that the portion of the Wholesale Transmission Services provided by Bryan during that year and the payment made by College Station with respect to those Wholesale Transmission Services constitute satisfactory mutual consideration. Bryan is 8 hereby precluded from seeking or receiving additional payments from College Station with respect to the portion of the Wholesale Transmission Services provided for that year and College Station is precluded from seeking or receiving refunds of amounts it previously paid to Bryan with respect to that portion of the Wholesale Transmission b Services for that year. c. The cash portion of the Consideration that College Station pays to Bryan under this Agreement applies to the portion of the Wholesale Transmission Services provided during the period January 1, 1997 through December 31, 1999. Bryan is hereby precluded from seeking or receiving any further payments, or any refunds, from College Station with respect to the portion of the Wholesale Transmission Services with respect to that period. College Station is hereby precluded from seeking or receiving refunds of any portion of the cash Consideration or any other amounts heretofore received by Bryan from College Station, or seeking or receiving any other payments, with respect to the portion of the Wholesale Transmission Services for such period. The parties recognize and agree that the PUC has not yet established or set a rate or rate methodology, on remand, for the period September 1, 1999 to December 31, 1999 (the "Stub Period "). If the PUC adopts a rate or a rate methodology for transmission services provided by Bryan to College Station for the Stub Period (the "PUC Rate "), the parties agree that a portion of the cash Consideration shall be allocated to reflect such PUC Rate and the charges associated therewith. The remainder of the cash portion of the Consideration shall be allocated to the period of January 1, 1997 through August 31, 1999. In no event shall such allocation require Bryan to pay or refund any dollar amount 9 lhe to College Station or require College Station to pay or refund any dollar amount to Bryan for the period January 1, 1997 to August 31, 1999 or for the Stub Period. d. The parties agree that that the payments and refunds each has received from the other to date along with the cash portion of the Consideration to be paid pursuant to this Agreement fully and properly compensate each party for the transmission services provided to the other party for the period January 1, 1996 through December 31, 1999. Consequently, each party further agrees that it shall not seek in any forum, judicial, administrative or otherwise, nor accept as a result of an order or judgment issued by any such forum, further payments or refunds from the other party in connection with transmission services provided or received in all or any portion of the period January 1, 1996 through December 31, 1999. 2.5 Representations and Warranties of College Station - -In return for the Consideration and the other mutual promises contained herein, College Station represents and warrants the following to Bryan: a. College Station is correctly described in this Agreement; b. Before executing this Agreement, College Station became fully informed of the terms, contents, conditions, and effect of this Agreement; c. Before executing this Agreement, College Station's council was fully informed of the terms, contents, conditions, and effect of this Agreement and all necessary council approval was obtained; d. The signatory to this Agreement for College Station is fully authorized and legally competent to execute this Agreement and is a duly authorized representative of College Station; 10 lhr e. This Agreement is fully and forever binding on College Station, its successors, administrators, and any assigns; f. No promise or representation of any kind has been made to College Station or anyone acting for College Station, except as is expressly stated in this Agreement; and 11 g. College Station has not assigned, pledged, or in any other manner sold or transferred any rights, title, interest, or claim that arises out of the Wholesale Transmission Services or any part of the claims being released herein; h. In entering this Agreement, College Station has had the benefit of the advice of lawyers of its own choosing; and, College Station enters this Agreement freely, by College Station's own choice and judgment, and without duress or other influence; i. College Station recognizes that all statements and the recitations contained in this Agreement are contractual and not mere recitals. 2.6 Representations and Warranties of Bryan - -In return for the Consideration and the other mutual promises contained herein, Bryan represents and warrants the following to College Station: a. Bryan is correctly described in this Agreement; b. Before executing this Agreement, Bryan became fully informed of the terms, contents, conditions, and effect of this Agreement; c. Before executing this Agreement, Bryan's council and the BTU board were fully informed of the terms, contents, conditions, and effect of this Agreement and all necessary board of directors approval was obtained; d. The signatory to this Agreement on behalf of Bryan is fully authorized and legally competent to execute this Agreement and is a duly authorized representative of Bryan; e. This Agreement is fully and forever binding on Bryan, its successors, administrators, and any assigns; f. No promise or representation of any kind has been made to Bryan or anyone acting for Bryan, except as is expressly stated in this Agreement; g. Bryan has not assigned, pledged, or in any other manner sold or transferred any rights, title, interest, or claim that arises out of the Wholesale Transmission Services or any part of the claims being released herein; h. In entering this Agreement, Bryan has had the benefit of the advice of lawyers of its own choosing; and, Bryan enters this Agreement freely, by Bryan's own choice and judgment, and without duress or other influence; and i. Bryan recognizes that the statements and recitations contained in this Agreement are contractual and not mere recitals. 2.7 In the unlikely event that Bryan seeks to set aside all or part of this Agreement in any judicial or administrative proceeding (the "New Bryan Proceeding "), then Bryan stipulates and agrees, that, in addition to any other rights it may have at law or in equity, College Station shall have the following rights: a. Bryan shall pay College Station for all its reasonably incurred attorney fees, expert fees, and other out -of- pocket costs (collectively, "Regulatory Expenses ") incurred by College Station in such New Bryan Proceeding and any appeal thereof, regardless of which party ultimately prevails. Eighty percent (80 %) of the full amount of 12 Thr such Regulatory Expenses shall be paid monthly by Bryan as such expenses are incurred, subject to a final true -up after the courts or administrative agencies approve the reasonable amount of such Regulatory Expenses. b. College Station shall be permitted to institute any judicial or administrative actions against Bryan to recover compensation for the Wholesale Transmission Services. In the event College Station institutes such a proceeding, Bryan waives, and agrees not to assert, any defense to such claim based upon statute of limitations, laches, estoppel, or other similar defense based upon the passage of time (including but not limited to retroactive ratemaking) or the dismissal of any cases that were pending at the time this Agreement was executed, or both. Further, Bryan agrees that College Station may file or institute any or all of the proceedings pending as of the time of execution of this Agreement and that Bryan treat all such proceedings as if they had never been dismissed. 2.8 In the unlikely event that College Station seeks to set aside all or part of this Agreement in any judicial or administrative proceeding (the "New College Station Proceeding "), then College Station stipulates and agrees, that, in addition to any other rights it may have at law or in equity, Bryan shall have the following rights: a. College Station shall pay Bryan for all its reasonably incurred attorney fees, expert fees, and other out -of- pocket costs (collectively, "Regulatory Expenses ") incurred by Bryan in the New College Station Proceeding and any appeal thereof, regardless of which party ultimately prevails. Eighty percent (80 %) of the full amount of such Regulatory Expenses shall be paid monthly by College Station, as such expenses are 13 incurred, subject to a final true -up after the courts or administrative agencies approve the reasonable amount of such Regulatory Expenses. b. Bryan shall be permitted to institute any judicial or administrative actions against College Station to recover compensation for the Wholesale Transmission Services. In the event Bryan institutes such a proceeding, College Station waives, and agrees not to assert, any defense to such claim based upon statute of limitations, laches, estoppel, or other similar defense based upon the passage of time (including but not limited to retroactive ratemaking) or the dismissal of any cases that were pending at the time this Agreement was executed, or both. Further, College Station agrees that Bryan may file or institute any or all of the proceedings pending as of the time of execution of this Agreement and that College Station treat all such proceedings as if they had never been dismissed. ARTICLE 3 PROCEEDINGS RESOLVED 3.1 Pursuant to the Agreement, Bryan and College Station have resolved all claims regarding payment for Wholesale Transmission Services that College Station took from B ryan for t he p eriod from January 1, 1996 t hrough and i ncluding D ecember 31, 1999. The Commission had previously ordered a rate to apply for the period on and after January 1, 2000, which rate was not contested by any party hereto. l Further pursuant to the Agreement, Bryan's claim for an award of regulatory expenses incurred in connection with College Station's request for Wholesale Transmission Services has been resolved. 1 City of College Station, Texas, Docket No. TX96 -2 -001, Order Granting and Denying Rehearing and Establishing Settlement Judge Procedures, 97 FERC ¶ 61,152 at p. 61,666 (2001); City of College Station, Texas, Docket No. TX96 -2 -003, Order Denying Rehearing, 99 FERC ¶ 61,163 at p. 61,668 n.9 (2002). 14 Thus, this Agreement, coupled with the Commission's previous order adopting a rate to apply on and after January 1, 2000, disposes of all matters at issue between Bryan and College Station in this proceeding, in the proceedings described in sections 1.6, 1.7, 1.8, 1.9, and 1.11 of this Agreement, and in the claims described in sections 1.12 and 1.13 of this Agreement. This does not, however, require Bryan to cease or withdraw its appeals, if any, of the matters set forth in § 1.11 and does not prevent Bryan from urging or asserting any rate or rate methodology for the Stub Period, but Bryan agrees not to seek rate or monetary relief from College Station in such proceedings or in any remands of such proceedings through August 31, 1999. Payment of any rate or monetary relief that the PUC may order College Station to pay Bryan for the Stub Period shall be governed, as between Bryan and College Station, by the terms of section 2.4. Consequently, Bryan and College Station agree to jointly request that the Commission dismiss, with prejudice, its proceedings as to all issues raised as between Bryan and College Station as a part of its approval of this Agreement. The Agreement, however, is between only Bryan and College Station and does not address any matter or issue pending between College Station and TMPA. ARTICLE 4 EFFECTIVE DATE 4.1 This Agreement is effective and binding as of the date it is executed by both Bryan and College Station. 4.2 The Commission's order approving this Agreement shall constitute: (a) granting of all such waivers, special permissions, and authorizations with respect to the requirements of the FPA and the Commission's Rules and Regulations that are necessary to effectuate all of the provisions of this Agreement over which the Commission has 15 k jurisdiction; and (b) subject to the provisions and exceptions of this Agreement, the final disposition of all rate issues covered by this Agreement in Docket No. TX -96 -2 -000, et al. over which the Commission has jurisdiction. 4.3 The various provisions of this Agreement are not severable, provided however that Bryan and College Station shall be deemed to have accepted any change, condition, or modification included in the order approving the Agreement in this docket unless by written notice filed with the Commission and served on all participants within 15 days of the issuance of such order, Bryan or College Station shall have stated its refusal ( "Notice of Refusal ") to accept such change, condition, or modification. I n the event Bryan or College Station states its refusal to accept such change, condition, or modification, then Bryan and College Station agree to promptly meet and negotiate in good faith to see if they can agree upon modifications necessary to obtain Commission approval which would maintain as nearly as practicable the economic bargain reached in the Agreement by Bryan and College Station. If no such agreement can be reached and filed with the Commission within twenty (20) days of the Notice of Refusal, then (1) this Agreement shall be null and void, (2) Bryan shall promptly refund the Consideration to College Station, and (3) in the event Bryan institutes an action or actions against College Station for recovery for Wholesale Transmission Services, College Station agrees not to assert any defense thereto based upon statute of limitations, repose, laches, estoppel, waiver, or otherwise based on the passage of time (including but not limited to retroactive ratemaking). If a modified settlement agreement is reached and filed with the Commission as provided herein, then that modified settlement shall likewise be subject to the same provisions of this article 4, including 4.3. Nothing contained herein shall be 16 Plc construed as abrogating the right of any party to seek rehearing or to seek judicial review in accordance with the provisions of the Federal Power Act or other applicable statute regarding any condition or modification imposed by the Commission in its order approving this Agreement. ARTICLE 5 JURISDICTION 5.1 Prior to the Closing Date. In the period January 1, 2000 to the Closing Date, the transmission services Bryan provides to College Station will continue to be subject to FERC jurisdiction. In accordance with Original Sheet 3 of Bryan's unexecuted Transmission Service Agreement for service to College Station on file with FERC, Bryan's rate for the provision of transmission services during that period shall be calculated and recovered pursuant to PUC orders. 5.2 On and After the Closing Date. Effective as of the Closing Date, Bryan's Transmission Service Agreement as on file at FERC shall be deemed withdrawn and terminated, and the transmission services Bryan provides to College Station shall be under exclusive PUC jurisdiction; provided that, nothing herein prevents College Station from making a new filing with FERC pursuant to Section 211 of the FPA with respect to the transmission services being provided by Bryan to College Station in the period beginning with the Closing Date. 5.3 Termination Documents. Exhibit B hereto contains the Notice of Cancellation and the Tariff Cancellation Sheet for Bryan's Transmission Service Agreement for service to College Station. 17 k ARTICLE 6 GENERAL RESERVATIONS 6.1 Declaration of Privilege. This Agreement is submitted pursuant to Rule 602 of the Commission's Rules of Practice and Procedure and shall be privileged and shall not be admissible in evidence in any proceeding, state or federal, judicial or administrative or otherwise, against any participant except as may be necessary to enforce the terms hereof. 6.2 Compromise. It is specifically understood and agreed that this Agreement represents a negotiated settlement in the public interest with respect to the matters addressed in this Agreement for the sole purpose of the settlement of such matters agreed to herein. Neither Bryan, College Station, or the Commission or its Staff, nor any other participant or person shall be prejudiced or bound thereby in any proceeding except as specifically provided herein. Neither Bryan, College Station, or the Commission or its Staff, nor any other participant or person shall be deemed to have approved, accepted, agreed, or consented to any concept, theory, or principle underlying or supposed to underlie any of the matters provided for herein or to be prejudiced thereby in any future proceeding. 6.3 Settled Practices. The participants agree that the resolution of any matter in this Agreement shall not be deemed to be a "settled practice" as that term was interpreted and applied in Public Serv. Comm'n v. FERC, 642 F.2d 1335 (D.C. Cir. 1980), cert. denied, 454 U.S. 879 (1981), and shall not be the basis for any decision with regard to the burden of proof in any litigation with regard to any such matter. 6.4 ADDroval of Agreement as Authorization. Commission approval of this Agreement shall constitute the requisite waiver of any and all otherwise applicable 18 Fr Commission regulations and the provisions of Bryan's Wholesale Electric Transmission Tariff to permit the implementation of the provisions of this Agreement and a determination that all of the terms and provisions hereof are fair, reasonable, and in the public interest. 6.5 Entire Agreement. This Agreement may not be changed, amended, or waived orally and, except for an automatic amendment of this Agreement as described in sec. 1.14 above, no change, amendment, or attempted waiver of any provision hereof shall be binding unless expressed in writing and signed by Bryan and College Station. 6.6 Successors. The rights and obligations of the parties under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of each party, as the case may be. 6.7 Headings and Construction. Headings are used herein solely for convenience and a re n ot to be u sed i n c onstruing o n nterpreting t his A greement. A 11 parties participated in the drafting of this Agreement. Accordingly, the parties agree that the normal rules of construction to the effect that any ambiguities in this Agreement are to b e r esolved against t he d rafting p arty s hall n ot b e u sed i n t he i nterpretation o f t his Agreement. 6.8 Governing Law. The laws of the State of Texas shall govern the construction and interpretation of this Agreement without regard to any conflict of laws principles. To the extent there is an issue of FERC practice, procedure or jurisdiction, the FPA shall control to the extent it is applicable. 19 6.9 Duplicate Originals and Counterparts. The parties may execute this Settlement in counterparts or one or more duplicate originals, each of which shall have equal dignity and effect. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the respective dates shown below. 20 Par Respectfully submitted, Date I- a 3 -0 3 Approved By Approved By: 7/2//3 Date Mary Lynn - tratta, City Secretary City of Bryan, Texas Michael J. Co; ntino , City Attorney City of Brya ' , Texas Carmen Gentile Bruder, Gentile & Marcoux, LLP 1100 New York Avenue, N.W. Washington, D.C. 20005 -3934 202/783 -1350 202/256-7386 Fax 21 City of Bryan, Texas on Watson, Mayor f Bryan, Texas and Bryan Texas Utilities Dr. Richard Alexander, Chairman Campbell McGinnis McGinnis, Lochridge & Kilgore, LLP 919 Congress Avenue, Suite 1300 Austin, Texas 78701 512/495 -6000 512/495 -6093 Fax Attorneys for the City of Bryan, Texas and Bryan Texas Utilities Pr Approved By: , C + ie Hooks, City Secretary Cit of College Station, Texas Approved By: Harvey Carg Jr., Ci . Att City of College Station, Texas Stephen Fogel Joe N. Pratt BICKERSTAFF, HEATH, SMILEY, POLLAN, KEVER & MCDANIEL, L.L.P. 816 Congress Avenue, Suite 1700 Austin, Texas 78701 -2643 (512) 472-8021 telephone (512) 320 -5638 facsimile 22 City of College Station, Texas Ron ia, Mayor City of College Station, Texas Wallace L. Duncan Lisa S. Gast DUNCAN, WEINBERG, GENZER & PEMBROKE, P.C. 1615 M Street, N.W., Suite 800 Washington, D.C. 20036 -3203 (202) 467-6370 telephone (202) 467-6379 facsimile Attorneys for the City of College Station, Texas CERTIFICATE OF SERVICE I hereby certify that on this day of 2003, a copy of the foregoing pleading was sent via first class mail to all parties on the Commission's official service list in this docket. 23 Carmen Gentile CITY OF BRYAN and TEXAS MUNICIPAL POWER AGENCY, Plaintiffs, vs. CITY OF COLLEGE STATION and TEXAS UTILITIES ELECTRIC COMPANY, Defendants. Cause No. 43,098 -85 -CV Exhibit A IN THE DISTRICT COURT OF BRAZOS COUNTY, TEXAS 85 JUDICIAL DISTRICT JOINT MOTION FOR SEVERANCE 1. Plaintiff, City of Bryan ( "Bryan ") and defendant the City of College Station ( "College Station ") file this joint motion to sever Bryan's causes of action brought against College Station from this lawsuit. 2. Bryan and Texas Municipal Power Agency ( "TMPA ") brought suit against College Station and Texas Utilities Electric Company ( "TUEC "). The plaintiffs alleged causes of actions against College Station and TUEC. 3. Bryan now requests that the Court sever its claims against defendant College Station. Severance is justified in this case because Bryan and College Station have reached a settlement of all the claims and matters between them. 4. Bryan requests that the remaining claims that Bryan has against TUEC and that TMPA has against College Station and TUEC be docketed as Cause No. 43,098,85 -CV -A and that the originals of all pleadings and orders remain or be placed in that cause number as set forth in the attached proposed Order of Severance. 24 5. Bryan requests that the claims it has against College Station be styled, "City of Bryan v. City of College Station" and be docketed as Cause No. 43,098- 85 -CV- C, and that certified copies of certain listed pleadings and orders be placed in such docket as set forth in the attached proposed Order of Severance. Bryan and College Station pray that the Court grant this motion and all other relief to which they may be entitled. Respectfully submitted, McGinnis, Lochridge & Kilgore, LLP By: Campbell McGinnis State Bar No. 13630500 919 Congress Avenue, Suite 1300 Austin, Texas 78701 512/495 -6000 512/495 -6093 Fax Attorneys for City of Bryan BICKERSTAFF, HEATH, SMILEY, POLLAN, KEVER & McDANIEL, L.L.P. By: Stephen Fogel State Bar No. 07202010 816 Congress Avenue, Suite 1700 Austin, TX 78701 Telephone: (512) 472 -8021 Facsimile: (512) 320 -5638 Attorneys for City of College Station 25 k CITY OF BRYAN, Plaintiff, vs. CITY OF COLLEGE STATION, Defendant. Cause No. 43,098- 85 -CV -C IN THE DISTRICT COURT OF BRAZOS COUNTY, TEXAS 85 JUDICIAL DISTRICT ORDER GRANTING SEVERANCE The Court considered the Joint Motion of the City of B ryan ( "Bryan ") and the City of College Station ( "College Station ") for severance of Bryan's causes of action against College Station. The Court has decided to grant the motion. It is ORDERED that the causes of action brought by plaintiff Bryan against the defendant College Station are now severed from the original suit, and the Clerk is ordered to: (a) Docket the remaining claims that Bryan has against Texas Utilities Electric Company ( "TUEC ") and that Texas Municipal Power Agency has against College Station and TUEC as Cause No. 43,098- 85 -CV -A, and that the originals of all pleadings and orders remain or be placed in that cause number; (b) Docket the severed cause under No. 43,098,85 -CV -C with the style, "City of Bryan, Plaintiff vs. the City of College Station, Defendant "; (c) Prepare certified copies of the following pleadings, papers, and orders and file them in the severed cause of action — Cause No. 43,098- 85 -CV -C: (1) Original Petition of Plaintiffs City of Bryan and Texas Municipal Power Agency; 26 k By: By: (2) Defendant College Station's Plea in Abatement and Original Answer; (3) The Joint Motion to Sever; and (4) This order of severance. It is ORDERED that all costs of making the certified copies ordered in paragraph (c) are taxed equally against Bryan and College Station. SIGNED , 2003. APPROVED AND AGREED TO: MCGINNIS, LOCHRIDGE & KILGORE, LLP Campbell McGinnis State Bar No. 13630500 919 Congress Avenue, Suite 1300 Austin, Texas 78701 512/495 -6000 512/495 -6093 Fax Attorneys for City of Bryan Judge Presiding BICKERSTAFF, HEATH, SMILEY, POLLAN, KEVER & McDANIEL, L.L.P. Stephen Fogel State Bar No. 07202010 816 Congress Avenue, Suite 1700 Austin, TX 78701 Telephone: (512) 472 -8021 Facsimile: (512) 320 -5638 Attorneys for City of College Station 27 k CITY OF BRYAN, Plaintiff, vs. CITY OF COLLEGE STATION, Defendant. Cause No. 43,098- 85 -CV -C IN THE DISTRICT COURT OF BRAZOS COUNTY, TEXAS 85 JUDICIAL DISTRICT AGREED FINAL JUDGMENT This case c ame before the Court for a final a djudication, the full names of the parties being as follows: City of Bryan ( "Bryan "), plaintiff; and the City of College Station ( "College Station "), defendant. Bryan and College Station appeared, waived trial by j ury, and announced t hat a 11 m atters i n c ontroversy h ad b een se ttled i n a ccordance with t hat c ertain s ettlement a greement filed w ith and approved b y t he F ederal E nergy Regulatory Commission, and that, as set out in that settlement agreement, College Station has agreed to pay the sum of two million two hundred thousand dollars ($2,200,000) to Bryan. Such parties requested the Court enter a judgment to that effect and that all court costs be taxed against the parties incurring same. Such parties also had requested, by separate motion, a severance from any remaining claims in the original case, namely those claims brought by plaintiffs Bryan and Texas Municipal Power Agency ( "TMPA ") against the remaining defendant Texas Utilities Electric Company ( "TUEC ") and the claims brought by the TMPA against College Station, and an order severing such matters has been entered to that effect. 28 It is ORDERED, ADJUDGED, AND DECREED that College Station pay the sum of two million two hundred dollars ($2,200,0000) to Bryan as set out in the settlement agreement and that all costs of court be taxed against the parties incurring same, for which costs the Clerk may have execution if they are not paid in a timely fashion. It is FURTHER, ORDERED, ADJUDGED, AND DECREED that all relief not expressly granted by this judgment is denied, whether the relief was requested or whether it could have been requested in this case, and that this if a final judgment. [The parties, in open court, waive the provisions of Rule 306a(4) of the Texas Rules of Civil Procedure, as amended.] SIGNED APPROVED AND AGREED TO: MCGINNIS, LOCHRIDGE & KILGORE, LLP BICKERSTAFF, HEATH, SMILEY, POLLAN, KEVER & MCDANIEL, L.L.P. By: Campbell McGinnis State Bar No. 13630500 919 Congress Avenue, Suite 1300 Austin, Texas 78701 Telephone: (512) 495 -6000 Facsimile: (512) 495 -6093 ATTORNEYS FOR CITY OF BRYAN, Plaintiff 29 , 2003. PRESIDING JUDGE By: Stephen Fogel State Bar No. 07202010 816 Congress Avenue, Suite 1700 Austin, TX 78701 Telephone: (512) 472 -8021 Facsimile: (512) 320 -5638 ATTORNEYS FOR CITY OF COLLEGE - STATION, Defendant Dated: July , 2003 UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION CITY OF COLLEGE STATION, TEXAS Wallace L. Duncan Lisa S. Gast Duncan, Weinberg, Genzer & Pembroke, P.C. 1615 M Street, N.W., Suite 800 Washington, DC 20036 -3203 i NOTICE OF CANCELLATION Notice is hereby given that effective the date the Commission approves the Offer of Settlement in the captioned proceeding, the City of Bryan, Texas, Rate Schedule FERC No. 1 filed with the Federal Energy Regulatory Commission by the City of Bryan, Texas, is to be cancelled. Notice of the proposed cancellation has been served upon the following: CITY OF BRYAN, TEXAS, BRUDER, GENTILE & MARCOUX, L.L.P. By: Stephen Fogel Joe N. Pratt Bickerstaff, Heath, Smiley, Pollan Kever & McDaniel, L.L.P. 816 Congress Avenue, Suite 1700 Austin, TX 78701 -2643 Title: Counsel for the City of Bryan, Texas 30 Exhibit B Docket No. TX96 -2 -000 Por The City of Bryan, Texas Rate Schedule FERC No. 1 CANCELS FERC ELECTRIC RAlE SCHEDULE NO. 1 Issued by: Dan Wilkerson Issued on: July , 2003 NOTICE OF CANCELLATION 31 First Revised Sheet No. 1 Effective: On the date the Commission approves the City of Bryan Settlement Agreement in Docket No. TX96 -2 -000, et al