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  85R11582 WBL-F
 
  By: Lozano H.C.R. No. 117
 
 
 
CONCURRENT RESOLUTION
         WHEREAS, Sumitomo Mitsui Banking Corporation, as collateral
  agent for certain secured lenders and other entities, some of which
  are headquartered or incorporated in Texas, alleges that:
               (1)  Papalote Creek Wind Farm II, LLC, built, owns, and
  operates a wind farm that generates electricity in San Patricio
  County, Texas, on land leased from many San Patricio County
  landowners;
               (2)  before Papalote Creek Wind Farm II, LLC,
  constructed the San Patricio wind farm, Papalote Creek Wind Farm
  II, LLC, and the Lower Colorado River Authority, a conservation and
  reclamation district created by Chapter 7 (S.B. 2), Acts of the 43rd
  Legislature, 4th Called Session, 1934, now codified as Chapter
  8503, Special District Local Laws Code, executed a power purchase
  agreement, under which Papalote Creek Wind Farm II, LLC, agreed to
  sell and the authority agreed to take and pay for all of the San
  Patricio wind farm's power generation;
               (3)  under the power purchase agreement's terms:
                     (A)  the Lower Colorado River Authority promised
  to purchase at a set price all of the wind-generated power from the
  San Patricio wind farm during an 18 year term in accordance with the
  power purchase agreement; and
                     (B)  the Lower Colorado River Authority is
  required to pay Papalote Creek Wind Farm II, LLC, damages if the
  authority fails to meet the authority's purchasing obligations
  under the power purchase agreement;
               (4)  the Lower Colorado River Authority's promises to
  buy electricity or pay damages were crucial to the San Patricio wind
  farm's viability, and Papalote Creek Wind Farm II, LLC, built the
  San Patricio wind farm in reliance on those promises;
               (5)  in 2013, Papalote Creek Wind Farm II, LLC, sought
  financing from secured lenders and other entities for which
  Sumitomo Mitsui Banking Corporation serves as collateral and
  administrative agent;
               (6)  the Lower Colorado River Authority's long-term
  power purchase agreement commitments to Papalote Creek Wind Farm
  II, LLC, were important to the financing and payment of the
  obligations of Papalote Creek Wind Farm II, LLC, to Sumitomo Mitsui
  Banking Corporation and the other secured lenders and required
  that:
                     (A)  Papalote Creek Wind Farm II, LLC, assign its
  rights under the power purchase agreement to Sumitomo Mitsui
  Banking Corporation as collateral for the financing; and
                     (B)  the Lower Colorado River Authority make
  related agreements to ensure the authority's continued performance
  under the power purchase agreement in the event of the occurrence
  and continuance of an event of default under the financing;
               (7)  Papalote Creek Wind Farm II, LLC, Sumitomo Mitsui
  Banking Corporation, and the Lower Colorado River Authority
  executed the consent to assignment of the rights under the power
  purchase agreement, and the authority's obligations under the power
  purchase agreement were crucial to Sumitomo Mitsui Banking
  Corporation's financing of Papalote Creek Wind Farm II, LLC;
               (8)  the consent to assignment of power purchase
  agreement grants Sumitomo Mitsui Banking Corporation the right to
  compel the Lower Colorado River Authority to specifically perform
  its obligations under the power purchase agreement and prohibits
  the authority from modifying the power purchase agreement without
  Sumitomo Mitsui Banking Corporation's prior written consent;
               (9)  the Lower Colorado River Authority has breached
  the consent to assignment of power purchase agreement by:
                     (A)  modifying the power purchase agreement
  without Sumitomo Mitsui Banking Corporation's prior written
  consent through a separate arbitration to which Sumitomo Mitsui
  Banking Corporation was not a party; and
                     (B)  ceasing performance under the power purchase
  agreement, in violation of the consent to assignment provision that
  the Lower Colorado River Authority must continue to specifically
  perform its obligations under the power purchase agreement when
  directed to do so by Sumitomo Mitsui Banking Corporation;
               (10)  the consent to assignment of power purchase
  agreement grants Sumitomo Mitsui Banking Corporation the right to
  compel the Lower Colorado River Authority to specifically perform
  the authority's obligations under the power purchase agreement, and
  provides that if the corporation notifies the authority in writing
  that an event of default has occurred and is continuing, and
  requests that the authority continue performance under the power
  purchase agreement, the authority must perform under the power
  purchase agreement in accordance with the terms of that agreement;
               (11)  Sumitomo Mitsui Banking Corporation has:
                     (A)  notified the Lower Colorado River Authority
  in writing that an event of default has occurred and is continuing;
  and
                     (B)  requested continued performance of the power
  purchase agreement by the Lower Colorado River Authority;
               (12)  Section 20 of the consent to assignment of power
  purchase agreement further provides: "This Consent does not confer
  any additional rights or obligations from the Consenting Party to
  the Assignor or the Assignee other than those contained in this
  Consent. THE PARTIES AGREE TO SEEK SPECIFIC PERFORMANCE AS THE SOLE
  AND EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS ARISING FROM THIS
  CONSENT AGREEMENT. THE PARTIES' REMEDIES UNDER THIS CONSENT ARE
  LIMITED TO SPECIFIC PERFORMANCE ONLY AND THE PARTIES AGREE THAT
  THEY WILL NOT SEEK DAMAGES OR ANY OTHER REMEDIES AT EQUITY OR LAW.";
               (13)  the purpose of the consent to assignment of power
  purchase agreement entered into by the Lower Colorado River
  Authority was to facilitate the financing arrangements of Papalote
  Creek Wind Farm II, LLC, by further guaranteeing that the authority
  would continue to buy power throughout the term of the power
  purchase agreement;
               (14)  Sumitomo Mitsui Banking Corporation and the
  secured lenders relied on the Lower Colorado River Authority's
  agreements and obligations as set forth in the consent to
  assignment of power purchase agreement in connection with the
  financing, including the authority's consent and agreement to the
  bringing of a specific performance action against the authority
  with respect to the enforcement of the rights of Sumitomo Mitsui
  Banking Corporation and the secured lenders under the consent to
  assignment of power purchase agreement;
               (15)  the Lower Colorado River Authority has asserted
  that it is immune from suit for breach of the consent to assignment
  of power purchase agreement;
               (16)  the Lower Colorado River Authority's position is
  legally erroneous under Texas law;
               (17)  Sumitomo Mitsui Banking Corporation seeks to
  enforce the rights granted to it under the consent to assignment of
  power purchase agreement;
               (18)  Sumitomo Mitsui Banking Corporation does not seek
  authorization or permission to join any other agency or institution
  of the State of Texas in any other lawsuit; and
               (19)  Sumitomo Mitsui Banking Corporation is not
  seeking the recovery of monetary damages from the State of Texas,
  but only the ability to fully litigate and obtain relief against the
  Lower Colorado River Authority; now, therefore, be it
         RESOLVED by the Legislature of the State of Texas, That
  Sumitomo Mitsui Banking Corporation, as collateral agent for
  certain secured lenders, is granted permission to sue the Lower
  Colorado River Authority subject to Chapter 107, Civil Practice and
  Remedies Code; and, be it further
         RESOLVED, That the suit authorized by this resolution may be
  brought in San Patricio or Travis County; and, be it further
         RESOLVED, That the attorney general, the general manager of
  the Lower Colorado River Authority, and the presiding officer of
  the board of directors of the Lower Colorado River Authority be
  served process as provided by Section 107.002(a)(3), Civil Practice
  and Remedies Code.