Res 2018-042/approving and authorizing the City Manager to execute a wholesale electric power purchase agreement with AEP Energy Partners, Inc. to supply wind energy to the San Marcos Electric Utility

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strictest standard of review permissible to preserve the intent of the Parties to uphold the sanctity of contracts without modification, which in no event will be lower than the "public interest" standard of review set forth in High Plains Natural Gas Co. v Railroad Commission, 467 S.W.2d 532 (Tex. Civ. App. 1971), writ refd n.r.e. It is the intent and understanding of the Parties to this Confirmation Letter that the Federal Energy Regulatory Commission ("FERC") does not have jurisdiction over this Agreement. Without waiving any rights the Parties may have to assert that FERC does not have jurisdiction, the parties wish to make the following agreements in the event that a party, a non-party, or the FERC acting sua sponte asserts that FERC has jurisdiction over this Agreement Absent the agreement of all parties to the proposed change, the standard of review for changes to the terms of this Confirmation Letter and of the General Terms and Conditions of the Master Agreement proposed by a party, a non-party or the Federal Energy Regulatory Commission acting sua sponte will be the strictest standard of review permissible to preserve the intent of the Parties to uphold the sanctity of contracts without modification, which in no event will be lower than the "public interest" standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956), and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956) (the "Mobile -Sierra" doctrine), or such other standard of review permissible to preserve the intent of the parties pursuant to this Section to uphold the sanctity of contracts without modification. 7.2 Assignment. Notwithstanding Section 10.5 of the Master Agreement, the Parties agree that neither Party will unreasonably withhold or condition its consent to assign this Transaction, and Seller may, upon notice, assign its interest in this Transaction to its affiliate Owner/Operator of the Facility. 9. DEFINITIONS: "Abandoned" means (i) the permanent relinquishment of possession or control of the Facility by Owner/Operator or (ii), if prior to the Commercial Operation Date, the permanent cessation of design, construction, testing or inspection of the Facility by Owner/Operator or its contractors. "Buyer's Share" means Buyer's right under this Transaction to purchase seven and eight tenths percent (7.8%) of the amount of Wind Energy that Seller has the contractual right and obligation to purchase from the Facility. "ERCOT Protocols" means the documents adopted by ERCOT, including any attachments or exhibits referenced in those documents, that contain the scheduling, operating, planning, reliability, and settlement policies, rules, guidelines, procedures, standards, and criteria of ERGOT, as amended from time to time. 5