Opinion

West Texas Municipal Power Agency v. Republic Power Partners, L.P.

  • 428 S.W.3d 299
  • 2014 Tex. App. LEXIS 1308
  • 2014 WL 486287
Court
Texas Court of Appeals, 7th District (Amarillo)
Filed
Feb 5, 2014
Status
Published
On the bench
Campbell, Hancock, Pirtle
Cited by
11 cases

The opinion

ORDER OVERRULING MOTION FOR REHEARING

PER CURIAM.

Remaining convinced that our original opinion issued February 5, 2014, correctly disposes of the issues before this Court, we overrule Appellant’s Motion for Rehearing with these additional comments. Appellant, West Texas Municipal Power Agency (WTMPA) has filed a Motion for Rehearing, now focusing on the single issue of whether the Development Agreement between WTMPA and Appellee, Republic Power Partners, L.P., satisfies the requirements of chapter 271 of the Texas Local Government Code so as to waive WTMPA’s immunity from suit. See Tex. Local Gov’t Code Ann. § 271.152 (West 2005). Specifically, WTMPA reargues its previous contention that the Development Agreement is not a contract for “goods and services” because the agreement provides that “essential terms are to be negotiated at a later time.” WTMPA contends that because the agreement makes provision for the future negotiation of contracts to build and operate an electric generation facility, it is merely an “agreement to agree.”

To the extent that our original opinion could be read as relying upon the future delivery of electric energy as the good or service forming the basis for waiver of immunity, we write to emphasize that while the Development Agreement does contemplate the formation of future contracts, it also provides the essential terms of an agreement providing for the delivery of goods and services during the development period. Specifically, it provides that the parties would “evaluate] new sources for power generation and transmission, rais[e] capital and acquir[e] feasibility studies for the design, development, engineering, financing, legal, regulatory, construction and operations of any project.”

In furtherance of the Development Agreement, Republic Power provided WTMPA goods and services in the form of (1) identification and evaluation of new sources of power generation and delivery, (2) management of the development process, and (3) the securing of private investment capital. Accordingly, we remain convinced the Development Agreement provides for the delivery of goods or ser *311 vices to a local governmental entity, and we conclude section 271 .152 waives immunity from suit for the purpose of adjudicating Republic Power’s breach of contract claims. Appellant’s Motion for Rehearing is overruled.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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