ML23212B249

Public Exhibits to Motion and Petition of CPS Energy and City of Austin

ML23212B249
Person / Time
Site:	South Texas, 07201041
Issue date:	07/31/2023
From:	-Neednewvalue CPS Energy, City of Austin, TX
To:	NRC/OCM
SECY RAS
References
72-1041-LT
Download: ML23212B249 (0)

Text

[Exhibit Index]

EXHIBIT INDEX Exhibit A Amended and Restated South Texas Project Participation Agreement between City of San Antonio, Central Power and Light Co., Houston Lighting &

Power Co., and City of Austin (Nov. 17, 1997)

• confidential; withheld under 10 C.F.R. § 2.390 Exhibit B South Texas Project Operating Agreement (Nov. 17, 1997)

• confidential; withheld under 10 C.F.R. § 2.390 Exhibit C Declaration of Larry Blaylock Exhibit D Declaration of Cory Kuchinsky Exhibit E Letter from CPS Energy and Austin to NRG Energy Inc., Re: Announced Sale of NRG Energy Inc.s Ownership Stake in the South Texas Project (June 2, 2023)

Exhibit F Letter from CPS Energy and Austin to Constellation Energy Corp., Re:

Announced Acquisition of NRG Energy Inc.s Ownership Stake in the South Texas Project (June 2, 2023)

Exhibit G Letter from CPS Energy and Austin to STP Nuclear Operating Company Re:

Announced Sale of NRG Energy Inc.s Ownership Stake in the South Texas Project (June 2, 2023)

Exhibit H Letter from STPNOC to CPS Energy and Austin (June 5, 2023)

Exhibit I Letter from NRG Energy to CPS Energy and Austin, at 1 (June 4, 2023)

Exhibit J Plaintiffs Original Petition, Case No. 23-F-0279, Matagorda County 130th District Court (June 20, 2023)

Exhibit K Letter from Dykema Gossett PLLC to NRG South Texas LP, NRG Energy, Inc., and Texas Genco GP, LLC, Re: Right of First Refusal Relating to Proposed Sale of South Texas Project Interest (June 20, 2023)

Exhibit L Letter from CPS Energy to STPNOC, Re: Litigation Involving NRG South Texas, LPs Ownership Interest in the South Texas Project (June 23, 2023)

Exhibit M City of Austins Petition in Intervention, Case No. 23-7-0279, Matagorda County 130th District Court (July 31, 2023)

Exhibit O Letter from STPNOC to CPS Energy and Austin (July 30, 2023)

• Exhibits A and B are the STP ownership and operating agreements that are confidential to all the Participants. CPS Energy and Austin are working with Applicants to jointly request a protective order. For this filing, CPS Energy has provided the affidavit of Shanna Ramirez to support withholding of these attachments pursuant to 10 C.F.R. § 2.390. These attachments have been served on the Applicants via the non-public docket established by the Secretary.

Docket Nos. STN 50-498 STN-50-499 72-1041 Exhibit A Amended and Restated South Texas Project Participation Agreement between City of San Antonio, Central Power and Light Co., Houston Lighting & Power Co., and City of Austin (Nov. 17, 1997)

• Withheld Under 10 C.F.R. § 2.390*

Docket Nos. STN 50-498 STN-50-499 72-1041 Exhibit B South Texas Project Operating Agreement (Nov. 17, 1997)

• Withheld Under 10 C.F.R. § 2.390*

Docket Nos. STN 50-498 STN-50-499 72-1041 Exhibit C Declaration of Larry Blaylock

Ex. C - 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of:

South Texas Project Units 1 and 2

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Docket Nos.

STN 50-498 STN 50-499 72-104 Declaration of Larry D. Blaylock, II I, Larry D. Blaylock, II, declare and state as follows:

1.

I am the Senior Director of Generation Excellence & Nuclear Oversight at the City of San Antonio, acting by and through the City Public Service Board of San Antonio (CPS Energy). CPS Energy is a municipally owned utility that owns a 40% stake in the South Texas Project (STP).

2.

I am providing this declaration in support of CPS Energys Motion to Dismiss, Immediately Stay, and Petition to Intervene on the June 12, 2023 NRC license transfer application filed by STP Nuclear Operating Company (STPNOC) to obtain NRC approval of the transfer of NRCs ownership interest in STP to Constellation (ML23163A176) (Application).

3.

I serve as CPS Energys Participant Director on the STPNOC Board of Directors, providing executive oversight of STPNOC and STP. Prior to July 1, 2023, I also served as CPS Energys Alternate representative on the STP Owners Committee. I provide executive leadership and management of the CPS Energys nuclear oversight group to ensure STP is operated safely, reliably, and cost-effectively. I have served

Ex. C - 2 as CPS Energys representative on the STPNOC Board of Directors and STP Owners Committee since January 2014. In these roles, I regularly interact with our NRC licensed operator STPNOC and the other STP owners.

4.

The STPNOC Board of Directors is composed of four members. Each owner appoints one representative, as Participant Director, to the STPNOC Board of Directors. The three Participant Directors elect a fourth director who serves as CEO. STPNOC has its own executive leadership and management structure, separate from the owners, and STPNOC employs the plant employees. The STP Operating Agreement gives STPNOC general authority to operate the plant and manage NRC licensing matters for the owners.

5.

The Owners Committee is established pursuant to the STP Participation Agreement (i.e. the agreement governing the owners rights and obligations regarding ownership of STP) and is composed of one primary representative and one alternate from each STP Owner. The Owners Committee has regularly scheduled meetings and can call an unscheduled meeting or a vote upon request by STPNOC or one of the other owners. The committee generally hears proposals from STPNOC on the annual budget, outage schedule, multi-year business plan, contracting and procurement plans, budget overruns, or other non-recurring matters that require Owners Committee approval.

6.

The Owners Committee has authority to approve and join, where necessary, any application or amended application that STPNOC submits to NRC on behalf of the owners. For a proposal to be approved by the Owners Committee, two or more owners

Ex. C - 3 having more than a combined 60% of the ownership interest have to vote in favor. No single owner can approve a proposal before the Owners Committee without the vote of at least one other owner.

7.

On June 1, 2023, NRG and Constellation announced they had entered into a Purchase Agreement for NRCs 44% ownership share.

8.

On June 2, 2023, CPS Energy and Austin Energy sent STPNOC a letter objecting to STPNOCs direct involvement with Constellation regarding the proposed Purchase Agreement and to discontinue plans for Constellation to become involved in business matters, specifically, Constellations attendance at STPNOC Board and STP Owner meetings and direct discussions with STPNOC officers or employees.

9.

On June 7, 2023, there was a STPNOC Board meeting and owner meeting. During those meetings, neither NRG nor STPNOC requested or received Owner Committee approval for STPNOC to submit a license transfer application in connection with Constellations Purchase Agreement.

10.

CPS Energy was notified on June 12, 2023 that STPNOC had filed the Application with the NRC. CPS Energy, as an owner, was not provided opportunity to approve or join the Application. The Owners Committee did not approve STPNOCs submittal of the Application. To the best of my knowledge, neither NRG nor STPNOC sought Owners Committee or STPNOC Board agreement for STPNOC to work with Constellation and NRG on the submittal of the Application. CPS Energy believes the Application was submitted without authorization, as NRG and STPNOC did not adhere to the requirements of the Participation Agreement and STPNOC filed the

Ex. C - 4 Application without obtaining Owners Committee approval and contrary to the direction provided by CPS Energy and Austin Energy in our June 2, 2023 letter.

11.

After STPNOC filed the Application, CPS Energy filed a lawsuit due to NRCs failure to recognize CPS Energys right of first refusal related to the announced pending sale.

On June 23, 2023 CPS Energy sent STPNOC a copy of our petition and again directed them not to communicate with Constellation.

I hereby declare under penalty of perjury that my statements in this declaration are true and correct to the best of my knowledge and belief.

/Executed in accordance with 10 CFR 2.304(d)/

Larry D. Blaylock, II Senior Director Generation Excellence & Nuclear Oversight CPS Energy 500 McCullough Ave.

San Antonio, Texas 78215 (210) 353-4490/office ldblaylock@cpsenergy.com Dated at San Antonio, Texas this 31st day of July 2023

Docket Nos. STN 50-498 STN-50-499 72-1041 Exhibit D Declaration of Cory Kuchinsky

Ex. D - 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of:

South Texas Project Units 1 and 2

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Docket Nos.

STN 50-498 STN 50-499 72-104 Declaration of Cory Kuchinsky I, Cory Kuchinsky, declare and state as follows:

1.

I am the Chief Financial Officer and Treasurer at the City of San Antonio, acting by and through the City Public Service Board of San Antonio (CPS Energy). CPS Energy is a municipally-owned utility and one of the original owners of the South Texas Project (STP).

2.

I am providing this declaration in support of CPS Energys Motion to Dismiss, Immediately Stay, and Petition to Intervene on the June 12, 2023 NRC license transfer application filed by STP Nuclear Operating Company (STPNOC) to obtain NRC approval of the transfer of NRCs ownership interest in STP to Constellation (ML23163A176) (Application).

3.

I oversee CPS Energys accounting, finance, tax, rate recovery, business development, and risk departments, as well as provide executive direction on financial matters affecting CPS Energy and our customers. I am leading CPS Energys effort to evaluate whether we can and should exercise our ROFR option for some or all of NRCs 44%

ownership stake.

Ex. D - 2 4.

We had no prior notice of the proposed transaction contemplated in the Equity Purchase Agreement that NRG signed with Constellation. On June 1, 2023, Constellation sent me and a few other CPS Energy employees an email with a copy of their press release and suggested talking points on their transaction.

5.

Since the date we learned about NRCs proposed transaction with Constellation, CPS Energys financial team has been working diligently to evaluate the terms and conditions of the transaction and to evaluate whether to exercise our ROFR to acquire some or all of NRCs interest being sold. Because we are a municipally-owned utility, and because our ROFR can be exercised as to some or all of NRCs interest, the diligence necessary to reach a decision requires us to not only analyze the complex financial and operational impact of the potential acquisition in context of our projected generation needs and financial constraints, but also requires input and alignment from our owner, the City of San Antonio, and our Board of Trustees. CPS Energy previously acquired 12% of another owners interest via exercise of our ROFR. That was before I joined CPS Energy, but I understand we conducted a similar process for that ROFR exercise.

6.

This process takes time. The Participation Agreement (i.e. the agreement governing the owners rights and obligations regarding ownership of STP) requires any owner wishing to sell their interest in STP to give the other owners notice of such intended sale, which such notice is required to include the proposed closing date of the sale and the terms and conditions of the sale, at least seven months prior to the proposed closing date of such sale. The Participation Agreement gives CPS Energy three months from

Ex. D - 3 that notice date to evaluate the terms and conditions of the proposed sale and decide whether or not to exercise our ROFR.

7.

On June 20, 2023, our counsel sent NRG a letter requesting that NRG provide us the noticed required by the Participation Agreement and the complete terms and conditions of NRCs proposed sale to Constellation. As of the date of this Declaration, NRG has not provided us the required notice nor the requested complete terms and conditions of the proposed transaction.

8.

Since learning of the proposed transaction on June 1, 2023, we have been working diligently to evaluate our ROFR based on the limited public information regarding NRCs proposed sale to Constellation that we have been able to independently obtain.

Given our municipal governance process described above and the significance of the decision on our ratepayers and stakeholders, CPS Energy will likely need the full three months to ensure that our decision regarding the ROFR is fully vetted.

9.

CPS Energy commits to providing NRC staff and the Commissioners with notice of our ROFR decision as soon as we have a final decision. We are actively working to have a final decision no later than September 1, 2023.

Ex. D - 4 I hereby declare under penalty of perjury that my statements in this declaration are true and correct to the best of my knowledge and belief.

/Executed in accordance with 10 CFR 2.304(d)/

Cory Kuchinsky Chief Financial Officer & Treasurer CPS Energy 500 McCullough Ave.

San Antonio, Texas 78215 (210) 353-5176 cpkuchinsky@cpsenergy.com Dated at San Antonio, Texas this 31st day of July, 2023

Docket Nos. STN 50-498 STN-50-499 72-1041 Exhibit E Letter from CPS Energy and Austin to NRG Energy Inc., Re: Announced Sale of NRG Energy Inc.s Ownership Stake in the South Texas Project (June 2, 2023)

4867-4270-0904.1 June 2, 2023 NRG Energy Inc.

Attn: Mauricio Gutierrez, President and Chief Executive Officer 211 Carnegie Center Princeton, NJ 08540 Via electronic mail only:

mauricio.gutierrez@nrg.com Re: Announced Sale of NRG Energy Inc.s Ownership Stake in the South Texas Project

Dear Mr. Gutierrez:

We are jointly writing this letter to express concern and disappointment at the public announcement yesterday about NRG Energy Inc.s (NRG) planned sale of NRCs ownership stake in the South Texas Project (STP) to Constellation Energy (Constellation).

As founding owners of STP, CPS Energy and Austin Energy are deeply concerned about the way the transaction was announced and by the level of disregard and disrespect that Constellation and NRG have shown.

We are disappointed in the lack of communication, coordination, and transparency regarding the announced transaction. Despite months of dialog between CPS Energy, Austin Energy, NRG and Constellation about a very different transaction structure, we first learned about the announced sale when we read yesterdays press release. STP Nuclear Operating Companys employees were apparently informed before CPS Energy and Austin Energy. NRCs conduct frankly evidences a lack of respect for CPS Energy and Austin Energy, the owners of a combined majority of the project.

NRCs conduct constitutes a conscious disregard for CPS Energys and Austin Energys rights as owners of STP under the parties contractual agreements. We believe there was ample time and opportunity for NRG to communicate the new direction of the transaction well before it was announced.

CPS Energy and Austin Energy have always conducted their discussions and communications with NRG in good faith and have expected the same from NRG in return. NRCs recent conduct toward CPS Energy and Austin Energy, however, seems not to have been in good faith.

It is apparent that NRG has taken the position that the Right of First Refusal set forth in Section 17 of the Amended and Restated South Texas Project Participation Agreement dated November 17, 1997, is somehow inapplicable to the announced transaction. We learned of this position only by reading far down into the draft talking points, presented as if it was already our agreed position.

This is particularly surprising given that we have no details regarding the structure of the

Mr. Gutierrez June 2, 2023 Page 2 4867-4270-0904.1 transaction. Since CPS Energy and Austin Energy were not aware of the announced transaction until yesterday, we have not had an opportunity to confirm NRCs position.

We are continuing to evaluate this situation and by this letter hereby notify NRG that CPS Energy and Austin Energy reserve all of their respective rights and remedies as owners of STP under all of our agreements related thereto, including the right to receive any offer of first right of refusal that may be due regarding this transaction. We in no way concur with NRCs apparent position as outlined in the talking points.

We hereby request that you promptly provide both Austin Energy and CPS Energy additional information about the announced transaction, including:

a copy of the purchase agreement and other definitive agreements between NRG and Constellation or their respective affiliates in connection with the announced acquisition; copies of all other documents that were executed between NRG and Constellation or their respective affiliates in connection with the announced acquisition; and documentation detailing the formation, structure and ownership of the upstream holding companies through which NRG holds its ownership stake in STP.

Regards, CPS Energy Austin Energy Shanna M. Ramirez Andy Perny Chief Legal & Ethics Officer, Assistant City Attorney General Counsel & Board Secretary Division Chief, Utilities and Regulatory Affairs cc: Tim Powell, gtpowell@stpegs.com Rachel Jackson, rljackson@stpegs.com Brian Curci, brian.curci@nrg.com Rodrigo Figueroa Will Liebmann

Docket Nos. STN 50-498 STN-50-499 72-1041 Exhibit F Letter from CPS Energy and Austin to Constellation Energy Corp., Re: Announced Acquisition of NRG Energy Inc.s Ownership Stake in the South Texas Project (June 2, 2023)

4856-7780-5160.1 June 2, 2023 Constellation Energy Corporation Attn: Joseph Dominguez, President and Chief Executive Officer 1310 Point Street Baltimore, Maryland 21231 Via electronic mail only:

joseph.dominguez@constellation.com Re: Announced Acquisition of NRG Energy Inc.s Ownership Stake in the South Texas Project

Dear Mr. Dominguez:

We are jointly writing this letter to express concern and disappointment at the public announcement yesterday about Constellation Energys (Constellation) planned acquisition of NRG Energy Inc.s (NRG) ownership stake in the South Texas Project (STP).

As founding owners of STP, CPS Energy and Austin Energy are deeply concerned about the way the acquisition was announced and by the level of disregard and disrespect that Constellation and NRG have shown.

We are disappointed in the lack of communication, coordination, and transparency regarding the announced acquisition. Despite months of dialog between CPS Energy, Austin Energy, NRG and Constellation about a very different transaction structure, we first learned about the announced acquisition when we read yesterdays press release. STP Nuclear Operating Companys employees were apparently informed before CPS Energy and Austin Energy. Constellations conduct frankly evidences a lack of respect for CPS Energy and Austin Energy, the owners of a combined majority of the project. It certainly does not bode well for the level of trust Constellation has asked the parties to place in it with respect to potential amendments to the project governance structure.

We are astonished that Constellation took the time to craft the incredibly presumptuous talking points for CPS Energy and Austin Energy to utilize when discussing the transaction but failed to discuss them with CPS Energy or Austin Energy in advance. Moreover, the talking points are inaccurate and include legal conclusions that have not been analyzed by CPS Energy or Austin Energy. We believe there was ample time and opportunity for Constellation and/or NRG to communicate the new direction of the transaction well before it was announced.

CPS Energy and Austin Energy have always conducted their discussions and communications with Constellation in good faith and have expected the same from Constellation in return. Constellations recent conduct toward CPS Energy and Austin Energy, however, seems not to have been in good faith. It is concerning that Constellation would choose to start its business relationship as a potential co-owner in STP with CPS Energy and Austin Energy in this manner.

It is apparent that NRG and Constellation have taken the position that the Right of First Refusal set forth in Section 17 of the Amended and Restated South Texas Project Participation Agreement dated

Mr. Dominguez June 2, 2023 Page 2 4856-7780-5160.1 November 17, 1997, is somehow inapplicable to the announced acquisition. We learned of this position only by reading far down into the draft talking points, presented as if it was already our agreed position. This is particularly surprising given that we have no details regarding the structure of the transaction. Since CPS Energy and Austin Energy were not aware of the announced acquisition until yesterday, we have not had an opportunity to confirm NRCs and Constellations position.

We are continuing to evaluate this situation and by this letter hereby notify Constellation that CPS Energy and Austin Energy reserve all of their respective rights and remedies as owners of STP under all of our agreements related thereto, including the right to receive any offer of first right of refusal that may be due regarding this transaction. We in no way concur with Constellations apparent position as outlined in the talking points.

We hereby request that you promptly provide both Austin Energy and CPS Energy additional information about the announced acquisition, including:

a copy of the purchase agreement and other definitive agreements between NRG and Constellation or their respective affiliates in connection with the announced acquisition; copies of all other documents that were executed between NRG and Constellation or their respective affiliates in connection with the announced acquisition; and documentation detailing the formation, structure and ownership of the upstream holding companies through which NRG holds its ownership stake in STP.

Regards, CPS Energy Austin Energy Shanna M. Ramirez Andy Perny Chief Legal & Ethics Officer, Assistant City Attorney General Counsel & Board Secretary Division Chief, Utilities and Regulatory Affairs cc: Tim Powell, gtpowell@stpegs.com Rachel Jackson, rljackson@stpegs.com David Dardis, david.dardis@constellation.com Rodrigo Figueroa Will Liebmann

Docket Nos. STN 50-498 STN-50-499 72-1041 Exhibit G Letter from CPS Energy and Austin to STP Nuclear Operating Company, Re: Announced Sale of NRG Energy Inc.s Ownership Stake in the South Texas Project (June 2, 2023)

4886-9822-7304.1 June 2, 2023 STP Nuclear Operating Company (STPNOC)

Via electronic mail only:

Attn: Tim Powell, Chief Executive Officer gtpowell@stpegs.com P.O. Box 289 Wadsworth, TX 77483 Re:

Announced Sale of NRG Energy Inc.s Ownership Stake in the South Texas Project

Dear Mr. Powell:

As you know, Constellation Energy (Constellation) and NRG Energy Inc. (NRG) recently announced NRCs planned sale of its ownership interest in the South Texas Project (STP) to Constellation. As described in the letters we sent NRG and Constellation and copied you, CPS Energy and Austin Energy were surprised by the announcement. We were also taken aback when we subsequently discovered there were pre-scripted talking points provided to STPNOC employees, in which we had no input or awareness. We are in the process of evaluating all legal options at this time and request that STPNOC refrain from expressing views regarding the proposed transaction that be inconsistent with the owners rights under the participation agreement.

Accordingly, CPS Energy and Austin Energy object to Constellations requested attendance at the upcoming STPNOC Board of Directors meeting on June 7th as premature. Further, CPS Energy and Austin Energy also object to STPNOC officers and employees communicating with Constellation and to Constellation visiting STP in connection with the announced transaction, unless authorized by the Owners Committee. As the other owners of STP and parties who stand to be significantly impacted by this potential transaction, we expect that any future external or internal communications about this matter be provided to and approved by the owners collectively prior to their release.

We further ask that STPNOC promptly inform CPS Energy and Austin Energy regarding any activities or planning regarding licensing activities at the NRC regarding this matter.

Regards, CPS Energy Austin Energy Shanna M. Ramirez Andy Perny Chief Legal & Ethics Officer, Assistant City Attorney General Counsel & Board Secretary Division Chief, Utilities and Regulatory Affairs cc: Rachel Jackson, rljackson@stpegs.com Rodrigo Figueroa Will Liebmann

Docket Nos. STN 50-498 STN-50-499 72-1041 Exhibit H Letter from STPNOC to CPS Energy and Austin (June 5, 2023)

June 5, 2023 Via electronic mail only:

Shanna M Ramirez Andy Perny Chief Legal & Ethics Officer, Assistant City Attorney General Counsel & Board Secretary Division Chief, Utilities and Regulatory Affairs Re: Memorandum dated June 2, 2023 Shanna Ramirez, Esq. and Andy Perny, Esq.:

We have received your memorandum dated June 2, 2023. With regard to your request, we commit to the following:

STP Nuclear Operating Company (STPNOC) will refrain from expressing views regarding the proposed transaction that are inconsistent with the owners rights under the restated participation agreement.

Per your request, Constellation representative will not attend the STPNOC Board of Directors meeting scheduled for June 7, 2023.

STPNOC will provide planned communications and the communication plan to the Owners Committee for their concurrence, and we can further discuss communications during the Owners Committee meeting on June 7, 2023.

It is our understanding that Constellation plans to have the license transfer application submitted to the NRC by Thursday and will request an approval in November of this year.

Respectfully, G. T. Powell President and CEO STP Nuclear Operating Company cc:

Rachel Jackson Kym Harshaw Skip Zahn

-1Powell

Docket Nos. STN 50-498 STN-50-499 72-1041 Exhibit I Letter from NRG Energy to CPS Energy and Austin (June 4, 2023)

Docket Nos. STN 50-498 STN-50-499 72-1041 Exhibit J Plaintiffs Original Petition, Case No. 23-F-0279, Matagorda County 130th District Court (June 20, 2023)

4894-3652-7467.1 PLAINTIFFS ORIGINAL PETITION PAGE 1 CAUSE NO. ____________________

CITY OF SAN ANTONIO, TEXAS ACTING BY AND THROUGH THE CITY PUBLIC SERVICE BOARD OF SAN ANTONIO, A TEXAS MUNICIPALLY-OWNED UTILITY Plaintiff,

v.

NRG SOUTH TEXAS, LP; TEXAS GENCO GP, LLC; TEXAS GENCO LP, LLC; AND NRG ENERGY, INC.,

Defendants.

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§ IN THE DISTRICT COURT

______ JUDICIAL DISTRICT MATAGORDA COUNTY, TEXAS PLAINTIFFS ORIGINAL PETITION TO THE HONORABLE JUDGE OF THIS COURT:

The City of San Antonio, Texas, acting by and through the City Public Service Board of San Antonio, a Texas Municipally-Owned Utility (hereafter CPS Energy), Plaintiff, files its Original Petition complaining of NRG South Texas, LP (NRG South Texas), Texas Genco GP, LLC (Texas Genco GP), Texas Genco LP, LLC (Texas Genco LP), and NRG Energy, Inc.

(NRG Energy)(collectively, the Defendants), and states as follows:

SUMMARY

This is a breach of contract and declaratory judgment action related to the ownership and operation of the South Texas Project (STP), which is a nuclear power plant located in southern Matagorda County. CPS Energy is a longstanding co-owner of an undivided interest in STP, along with NRG South Texas and the City of Austin. CPS Energy has a right of first refusal (ROFR) with regard to any direct or indirect transfer of NRG South Texas interest in STP based on the various agreements concerning STP, whether that interest is transferred directly, as an upstream transfer of corporate assets, or by other means.

Filed 6/20/2023 7:09 PM Janice L. Hawthorne District Clerk Matagorda County, Texas Krisdee Arrington, Deputy 23-F-0279 Matagorda County - 130th District Court

PLAINTIFFS ORIGINAL PETITION PAGE 2 On or about May 31, 2023, without notice to CPS Energy, Texas Genco GP and Texas Genco LP entered into an Equity Purchase Agreement with Constellation Energy Generation, LLC (Constellation) in which Constellation agreed to purchase the ownership interests in NRG South Texas, along with its 44% interest in STP. As a result, NRG South Texas and its parent companies have breached their agreements with CPS Energy by refusing to give CPS Energy proper notice, refusing to give CPS Energy required information, and denying that CPS Energy has a valid, enforceable, and exercisable ROFR.

I.

DISCOVERY CONTROL PLAN

1.

Discovery in this case should be conducted in accordance with the Level 3 Discovery, as provided by Rule 190.4 of the TEXAS RULES OF CIVIL PROCEDURE.

II.

PARTIES

2.

CPS Energy is a municipally-owned electric and gas utility with its principal office in Bexar County, Texas.

3.

NRG South Texas is a Texas limited partnership that is organized under the laws of the State of Texas, authorized to conduct business in the State of Texas, with a principal place of business at 1201 Fannin Street, Houston, Texas 77002, and may be served with process on its Registered Agent, CT Corporation System at 1999 Bryan Street, Ste. 900, Dallas, Texas 75201, or wherever else it may be found.

4.

Texas Genco GP is the general partner of NRG South Texas and owns 1% of NRG South Texas membership interests. Texas Genco GP is a Texas limited liability company that is organized under the laws of the State of Texas, authorized to conduct business in the State of Texas, with a principal place of business at 1201 Fannin Street, Houston, Texas 77002, and may

PLAINTIFFS ORIGINAL PETITION PAGE 3 be served with process on its Registered Agent, CT Corporation System at 1999 Bryan Street, Ste.

900, Dallas, Texas 75201, or wherever else it may be found.

5.

Texas Genco LP is the limited partner of NRG South Texas and owns 99% of NRG South Texas membership interests. Texas Genco LP is a Delaware limited liability company that is organized under the laws of the State of Delaware, and may be served with process on its Registered Agent, The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, or wherever else it may be found.

6.

NRG Energy is the parent corporation of Texas Genco GP, Texas Genco LP and NRG South Texas. NRG Energy is a Delaware corporation that is organized under the laws of the State of Delaware, with a principal place of business at 804 Carnegie Center, Princeton, New Jersey at 08540, authorized to conduct business in the State of Texas, and may be served with process on its Registered Agent, CT Corporation System at 1999 Bryan Street, Ste. 900, Dallas, Texas 75201, or wherever else it may be found.

III.

JURISDICTION & VENUE

7.

The Court has jurisdiction over this case and the Defendants because the damages sought are within the jurisdictional limits of the Court, and because CPS Energy seeks declaratory relief pursuant to Section 37.003 of the Texas Civil Practice and Remedies Code.

8.

Pursuant to TEX. CIV. PRAC. & REM. CODE § 15.011, venue is proper in Matagorda County because this suit arises out of and relates to the ownership rights in STP and the STP site, including the land where STP is located, and therefore any judgment by this Court would have an effect on an interest in land. Venue is also proper in Matagorda County pursuant to § 15.002(a)(1) of the TEX. CIV. PRAC. & REM. CODE because all or a substantial part of the events or omissions giving rise to the claims in this lawsuit occurred in Matagorda County.

PLAINTIFFS ORIGINAL PETITION PAGE 4 IV.

STATEMENT OF RELIEF - RULE 47

9.

Pursuant to TEX. R. CIV. P. 47, except for attorneys fees, CPS Energy seeks only non-monetary damages in the form of specific performance and declaratory relief as described in this Petition. CPS Energy further requests all other relief that CPS Energy is justly entitled to receive, including attorneys fees. CPS Energy reserves the right to amend this Rule 47 statement during the course of this litigation.

V.

BACKGROUND FACTS

10.

CPS Energy is one of the original owners of STP, which encompasses two nuclear-fueled electric generation facilities (Units 1 and 2) located in southern Matagorda County, including all of the property, facilities, and structures ancillary to Units 1 and 2.

11.

STP began operating in 1973, and was originally jointly owned by CPS Energy, Central Power and Light Company (CP&L), Houston Lighting & Power Company (HL&P),

and the City of Austin (collectively, the Participants), as tenants in common.

12.

Since 1988, STP has produced electric power that has been taken by each Participant in proportion to their ownership interests in STP.

13.

On November 17, 1997, the then Participants executed an Amended and Restated STP Participation Agreement (the Participation Agreement) for the continued operation and maintenance of STP.

14.

Section 16.3 of the Participation Agreement provides as follows:

16.3 Each Participant shall have the right to transfer or assign its ownership share in the [STP], together with its rights under this [Participation] Agreement, the Operating Agreement and its rights as an owner of the [STP] under any other agreement to which all the Participants are parties, to any of the following without the need for prior written consent of any other Participant:

16.3.1 To any entity acquiring all or substantially all of the electric utility

PLAINTIFFS ORIGINAL PETITION PAGE 5 properties and business, or of the electric generating facilities, of such Participant; or 16.3.2 To any entity merged or consolidated with such Participant; or 16.3.3 To any entity which is wholly-owned by such Participant.

15.

In relevant part, Section 17 of the Participation Agreement provides as follows:

17. RIGHT OF FIRST REFUSAL 17.1 Except as provided in Section 16 hereof, should any Participant, prior to the expiration of the period described in Section 17.12 hereof, desire to transfer its ownership, or any part thereof, in the [STP] to any person, entity or another Participant, ready, able and willing to acquire same, the Participant desiring to make such transfer Shall obtain a written offer from the prospective transferee, setting forth the consideration and other terms of the offer, and each of the other Participants shall have the right of first refusal to acquire such interest on the basis of the following consideration:

17.1.1 If the offer is in cash, whether Payable in one payment or in installments, the amount of the bona fide written offer from the prospective transferee, payable as specified in the offer; or 17.1.2 If the offer is not in cash but is in securities having a readily ascertainable market value, the fair market value of the securities offered by the prospective transferee; or 17.1.3 If the offer is neither in cash nor in securities having a readily ascertainable market value, the fair market value of the consideration to be received for the ownership interest to be transferred.

17.2 At least seven (7) months prior to the date on which the intended transfer is to be consummated, the Participant desiring to transfer shall serve written notice of its intention to do so upon all of the Participants. Such notice shall contain the proposed date of transfer and the terms and conditions of the transfer.

17.3 Each Participant shall have the option to acquire all or any part of the interest to be transferred and shall exercise said option by serving written notice of its intention upon the Participant desiring to transfer and on the remaining Participants within three (3) months after service of the written notice of intention to transfer given pursuant to Section 17.2 hereof. Failure of a Participant to exercise said option as provided herein within the time period specified shall be conclusively deemed to be an election not to exercise said option.

PLAINTIFFS ORIGINAL PETITION PAGE 6 17.12 It is intended that the provisions of this Section 17 shall, to the full extent permitted by law, continue in effect and be enforceable by the Participants, their successors and assigns, so long as two or more of them continue to own an interest in the [STP] and/or in the South Texas Plant Site, under this [Participation]

Agreement.

16.

At the time the Participation Agreement was signed, the ownership interests in STP were as follows:

CPS Energy: 28%.

HL&P: 30.8%.

CP&L: 25.2%.

City of Austin: 16%.

17.

Between 1997 and 2006, numerous transactions took place concerning the ownership of STP. As a result of these transactions, in 2006, STP was owned by CPS Energy, NRG South Texas, and the City of Austin, as tenants in common, as follows:1 1 The chart showing the ownership interests in STP, including the NRG Energy organizational chart, was copied from the June 12, 2023 application for written consent of the indirect transfer of control of the licenses for NRG South Texass 44% joint ownership interest in the South Texas Project (the Application to Transfer Title) filed with the Nuclear Regulatory Commission (NRC) by the STP Nuclear Operating Company (STPNOC), acting on behalf of Constellation, NRG South Texas, and its parent companies (including NRG Energy).

PLAINTIFFS ORIGINAL PETITION PAGE 7

18.

In 2007, an STP Supplemental Agreement (the Supplemental Agreement) was executed by NRG South Texas and CPS Energy related to STP and the development of two additional nuclear generation units (Units 3 and 4).

19.

Section 9.4 of the Supplemental Agreement provides as follows:

9.4 Except as provided in Sections 9.1, 9.2 or 9.3 hereof, should either Party hereto desire to Dispose of all or any part of its Ownership Interest, together with its related rights under the Participation Agreement, the Operating Agreement, and its related rights as an owner of the [STP] under any agreement of which all Participants are parties (as any of those may be amended), of any Person (including another Participant), ready, able and willing to acquire same, the Party desiring to make such Disposition shall have the obligations, and the other Party shall have the rights, of a Participant under Section 17 of the Participation Agreement with respect to the Ownership Interest sought to be transferred. For avoidance of doubt, the Party not disposing of its interest in the Existing Units or in the Project shall have a right

PLAINTIFFS ORIGINAL PETITION PAGE 8 of first refusal with respect to a Disposition of an interest in the [STP], whether that interest is transferred directly or as an upstream transfer of corporate assets, stock, or by other means, except as provided herein.

(Emphasis Added)

20.

Pursuant to Sections 4.5 and 4.6 of the Supplemental Agreement, Dispose means

[a]ny direct or indirect transfer, assignment, sale, hypothecation, gift, inter vivos transfer, pledge, mortgage, encumbrance or other disposition, whether voluntary or involuntary by operation of law..

21.

On or about March 1, 2010, CPS Energy, NRG Energy, and NRG South Texas as well as various other entities (such other entities referred to as, the NINA Entities) signed a Project Agreement, Settlement Agreement and Mutual Release (the Settlement Agreement).

22.

Section 5.2 of the Settlement Agreement provides as follows:

Supplemental Agreement. The Parties to the Supplemental Agreement agree that the Supplemental Agreement is hereby terminated and shall be of no further force and effect, except that the rights and obligations of [CPS Energy] and NRG South Texas as to the rights of first refusal applicable to [STP Units 1 and 2] as described in Section 9 thereof shall survive (Emphasis Added).

23.

On or about March 1, 2010, CPS Energy and the NINA Entities signed an STP 3 &

4 Owners Agreement (the Owners Agreement).

24.

Section 5.11 of the Owners Agreement states, inter alia, the following:

Complete Agreement. Except for the [Settlement Agreement], the Participation Agreement, the Operating Agreement, the Agency Agreement, the EPC Contract and the portion of the Supplemental Agreement described below, this Agreement, in conjunction with all Exhibits, Schedules and Appendices attached hereto and thereto, constitutes the entire agreement of the Owners relating to the subject matter of this Agreement.Each Party agrees that: (i) as among the Parties hereto, the Supplemental Agreement be and hereby is terminated and of no further force and effect (and all parties thereunder are fully and unconditionally released of all obligations thereunder), except that the rights and obligations of [CPS Energy]

PLAINTIFFS ORIGINAL PETITION PAGE 9 and NRG South Texas as to the rights of first refusal applicable to [STP Units 1 and 2] as described in Section 9 thereof shall survive.

(Emphasis Added).

25.

On or about October 1, 2018, the NINA Entities, NRG South Texas, CPS Energy, and the City of Austin executed an Assignment and Assumption Agreement and Mutual Release (the Assignment Agreement) in which CPS Energy and the NINA Entities assigned their rights to STP Units 3 and 4, and rights to future development of additional units in STP back to the Participants in accordance with their ownership stake in STP.

26.

Recital F of the Assignment Agreement states, inter alia, the following:

F. WHEREAS, [CPS Energy] and the [NINA Entities] entered into that certain

[Owners Agreement], dated effective as of March 1, 2010, terminating the Supplemental Agreement except the rights and obligations of [CPS Energy] and NRG South Texas as to the rights of first refusal (pursuant to Section 5.2 of the

[Settlement Agreement]).

(Emphasis Added).

27.

Paragraph 3 of the Assignment Agreement expressly provides that the assignment and conveyance of future development rights was of rights only and that the NINA Entities and CPS Energy did not assign, and the Participants [did] not assume, any current or future duties, obligations, or liabilities under the [Settlement Agreement] or Owners Agreement.

28.

Thus, NRG South Texas and CPS Energy supplemented the scope of the Participation Agreements ROFR in Section 9 of the Supplemental Agreement. As evidenced by the express terms of the Settlement Agreement, the Owners Agreement, and the Assignment Agreement, NRG South Texas and CPS Energys rights and obligations regarding such supplemented ROFR, as they apply to their respective ownership interests in STP Units 1 and 2, survived the unwinding of the agreements relating to STP Units 3 and 4, and are currently effective and enforceable.

PLAINTIFFS ORIGINAL PETITION PAGE 10

29.

On or about May 31, 2023, without notice to CPS Energy, Texas Genco LP and Texas Genco GP entered into an Equity Purchase Agreement (the Equity Purchase Agreement) with Constellation, in which Texas Genco LP and Texas Genco GP agreed to sell their equity interests in NRG South Texas and its 44% interest in STP to Constellation for $1,750,000,000 (the Proposed Sale).

30.

On or about June 1, 2023, CPS Energy discovered that NRG South Texas intended to sell its 44% interest in STP through a press release issued by Constellation.

31.

On June 2, 2023, CPS Energy and the City of Austin sent a joint letter to NRG Energy, expressing concern about the way the transaction was announced, and notifying NRG Energy that CPS Energy and the City of Austin were reserving all of their respective rights and remedies as owners of STP under all applicable agreements related thereto, including the right to receive any offer of a ROFR.

32.

In that letter, CPS Energy and the City of Austin requested: (1) a complete copy of the purchase agreement and other definitive agreements between NRG Energy and Constellation or their respective affiliates in connection with the announced acquisition; (2) copies of all other documents that were executed between NRG Energy and Constellation or their respective affiliates in connection with the announced acquisition; and (3) documentation detailing the formation, structure and ownership of the upstream holding companies through which NRG Energy holds its ownership stake in STP.

33.

On June 4, 2023, NRG Energy responded to the June 2, 2023 letter from CPS Energy and the City of Austin, notifying them that NRG Energy would not provide any non-public information regarding the Proposed Sale.

34.

On June 20, 2023, a letter was sent on behalf of CPS Energy to NRG South Texas

PLAINTIFFS ORIGINAL PETITION PAGE 11 formally notifying NRG South Texas that the Proposed Sale triggered NRG South Texas requirement to notify CPS Energy of its intention to transfer its interest in STP and to provide CPS Energy with the information required under Section 17.2 of the Participation Agreement.

35.

In the letter, CPS Energy requested written notice of the Proposed Sale and the complete terms and conditions of such Proposed Sale, including but not limited to, a complete signed copy of the Equity Purchase Agreement with all schedules and exhibits to such agreement, any side or ancillary agreements, and any other materials necessary for CPS Energy to evaluate the terms and conditions of the Proposed Sale, as required pursuant to Section 17.2 of the Participation Agreement, so that CPS Energy can determine whether to exercise its ROFR under the Participation Agreement as modified by the Supplemental Agreement.

36.

In light of the foregoing, CPS Energy now brings these claims against Defendants for breach of contract and declaratory relief.

VI.

CAUSES OF ACTION COUNT ONE - BREACH OF CONTRACT / SPECIFIC PERFORMANCE

37.

CPS Energy and the Defendants are parties to and bound by several unambiguous agreements, including the Participation Agreement, the Supplemental Agreement, the Assignment Agreement, and the Settlement Agreement, in which Defendants agreed to certain covenants and obligations set forth in those agreements as summarized above.

38.

CPS Energy has performed or substantially performed its obligations under the applicable agreements.

39.

CPS Energy has a valid and enforceable ROFR with regard to the Proposed Sale.

The Proposed Sale, as structured, falls directly within the ROFR terms of the Participation Agreement as supplemented by the Supplemental Agreement, including the following language:

PLAINTIFFS ORIGINAL PETITION PAGE 12 For avoidance of doubt, the Party not disposing of its interest in [STP Units 1 and 2] or in the Project shall have a right of first refusal with respect to a Disposition of an interest in the [STP], whether that interest is transferred directly or as an upstream transfer of corporate assets, stock, or by other means, except as provided herein.

40.

The structure of the Proposed Sale triggers CPS Energys ROFR rights.

41.

The Defendants have breached their agreement with CPS Energy by failing to recognize, and expressly ignoring, CPS Energys ROFR as to the Proposed Sale.

42.

According to the Application to Transfer Title, the closing date of the Proposed Sale is anticipated to be on or before December 31, 2023, and the Defendants were required to give CPS Energy written notice of the Proposed Sale on or before March 31, 2023, in accordance with the seven (7) month notice provision in Section 17.2 of the Participation Agreement.

43.

The Defendants have violated, and continue to violate, Section 17.2 of the Participation Agreement, by failing to give CPS Energy required written notice of the Proposed Sale.

44.

Further, the Defendants have failed to provide the full terms and conditions of the Proposed Sale in violation of Section 17.2 of the Participation Agreement, including but not limited to, a complete copy of the Equity Purchase Agreement with all schedules and exhibits to such agreement, any side or ancillary agreements, and any other materials necessary for CPS Energy to evaluate the terms and conditions of the Proposed Sale.

45.

Defendants have failed to acknowledge that CPS Energy has a contractually required three (3) month timeframe from the date it receives formal written notice of the Proposed Sale to determine whether to exercise its valid and enforceable ROFR with regard to the Proposed Sale.

46.

Defendants breached the applicable agreements with CPS Energy by:

PLAINTIFFS ORIGINAL PETITION PAGE 13 Failing to give CPS Energy timely written notice of the Proposed Sale; Failing to provide CPS Energy with required information related to the terms and conditions of the Proposed Sale; Failing to acknowledge CPS Energys three (3) month timeframe from the date of formal written notice to determine whether to exercise its valid and enforceable ROFR; Failing to allow CPS Energy the opportunity to exercise its valid and enforceable ROFR; and Otherwise failing to comply with various provisions of the applicable agreements.

47.

Defendants breaches of contract and continued refusal to recognize CPS Energys rights under the applicable agreements have and will cause irreparable injury to CPS Energy.

Recovery of damages is inadequate to compensate CPS Energy for the loss of benefit of its bargain, particularly given the unique nature of STP, the fact that CPS Energys rights related to its ROFR under the Participation Agreement as supplemented by the Supplemental Agreement were specifically negotiated and preserved by CPS Energy through the course of several agreements, and the fact that CPS Energys ROFR right to potential future electric generation from STP cannot adequately be replaced by the payment of money damages.

48.

CPS Energy is entitled to specific performance to compel Defendants to perform under the applicable agreements, including but not limited to, a requirement that Defendants:

provide proper notice under Section 17.2 of the Participation Agreement; provide full and complete information needed to disclose the complete terms and conditions of the Proposed Sale as required by Section 17.2 of the Participation Agreement; allow CPS Energy a three (3) month time frame from the date of formal written notice to allow CPS Energy to determine whether to exercise its valid and enforceable ROFR; and recognize CPS Energys ROFR rights.

49.

CPS Energy further requests judicial authority to exercise any and all rights and

PLAINTIFFS ORIGINAL PETITION PAGE 14 remedies relating to the ROFR as permitted under the Participation Agreement, Supplemental Agreement, Owners Agreement, Settlement Agreement, and Assignment Agreement. Such request is made without waiver of or election of certain remedies permitted under the applicable agreements and applicable law.

50.

CPS Energy further seeks payment of its attorneys fees and costs under TEX. CIV.

PRAC. & REM. CODE § 38.001, et seq.

COUNT TWO - DECLARATORY JUDGMENT

51.

The facts described in this Petition present an actual controversy within this Courts jurisdiction. A real and substantial controversy exists between the parties regarding the parties obligations under the applicable unambiguous agreements.

52.

Valid and enforceable agreements exist between CPS Energy and the Defendants.

For instance, the Supplemental Agreement contains the following relevant provisions:

9.4 Except as provided in Sections 9.1, 9.2 or 9.3 hereof, should either Party hereto desire to Dispose of all or any part of its Ownership Interest, together with its related rights under the Participation Agreement, the Operating Agreement, and its related rights as an owner of the [STP] under any agreement of which all Participants are parties (as any of those may be amended), of any Person (including another Participant), ready, able and willing to acquire same, the Party desiring to make such Disposition shall have the obligations, and the other Party shall have the rights, of a Participant under Section 17 of the Participation Agreement with respect to the Ownership Interest sought to be transferred. For avoidance of doubt, the Party not disposing of its interest in the Existing Units or in the Project shall have a right of first refusal with respect to a Disposition of an interest in the [STP], whether that interest is transferred directly or as an upstream transfer of corporate assets, stock, or by other means, except as provided herein.

53.

Additionally, the Participation Agreement contains the following provisions:

17. RIGHT OF FIRST REFUSAL 17.1 Except as provided in Section 16 hereof, should any Participant, prior to the expiration of the period described in Section 17.12 hereof, desire to transfer its ownership, or any part thereof, in the [STP] to any person, entity or another Participant shall obtain a written offer from the prospective transferee and

PLAINTIFFS ORIGINAL PETITION PAGE 15 each of the other Participants shall have the right of first refusal to acquire such interest.

17.2 At least seven (7) months prior to the date on which the intended transfer is to be consummated, the Participant desiring to transfer shall serve written notice of its intention to do so upon all of the Participants. Such notice shall contain the proposed date of transfer and the terms and conditions of the transfer.

17.3 Each Participant shall have the option to acquire all or any part of the interest to be transferred and shall exercise said option by serving written notice of its intention upon the Participant desiring to transfer and on the remaining Participants within three (3) months after service of the written notice of intention to transfer given pursuant to Section 17.2 hereof. Failure of a Participant to exercise said option as provided herein within the time period specified shall be conclusively deemed to be an election not to exercise said option.

54.

Pursuant to Chapter 37 of the TEX. CIV. PRAC. & REM. CODE, CPS Energy seeks a declaration of the rights, status, and other legal relations between the parties relating to the ROFR, pursuant to the Participation Agreement, the Supplemental Agreement, the Settlement Agreement, and the Assignment Agreement, including but not limited to, the following declarations:

That CPS Energy is entitled to receive, and that the Defendants must provide CPS Energy with timely written notice of the Proposed Sale; That CPS Energy is entitled to receive, and Defendants must provide, CPS Energy with requested information related to the terms and conditions of the Proposed Sale, including but not limited to, a complete signed copy of the Equity Purchase Agreement with all schedules and exhibits to such agreement, any side or ancillary agreements, and any other materials necessary for CPS Energy to evaluate the terms and conditions of the Proposed Sale; That CPS Energy is entitled to a three (3) month timeframe from the date of formal written notice and receipt of all information detailing the terms and conditions of the Proposed Sale, to determine whether to exercise its valid and enforceable ROFR; and That CPS Energy has a valid and enforceable ROFR as to the Proposed Sale.

55.

CPS Energys request for declaratory relief involves NRG South Texas current undivided ownership interest in STP, which is the subject of the Proposed Sale.

PLAINTIFFS ORIGINAL PETITION PAGE 16

56.

CPS Energy requests declaratory relief of all other rights and obligations, as necessary, as between the parties.

57.

Pursuant to TEX. CIV. PRAC. & REM. CODE § 37.009, CPS Energy further seeks recovery of its attorneys fees and costs that are reasonable and necessary, equitable, just, and as permitted by the Court in securing declaratory relief against the Defendants.

VII.

REQUEST FOR ATTORNEYS FEES AND COSTS

58.

Pursuant to Tex. Civ. Prac. & Rem. Code §§ 37.001, et seq. and 38.001, et seq.,

CPS Energy hereby demands an award of its attorneys fees and costs taxed against Defendants.

VIII.

INTEREST

59.

CPS Energy seeks to recover pre-judgment and post-judgment interest at the maximum legal rate.

IX.

CONDITIONS PRECEDENT

60.

Pursuant to Texas Rule of Civil Procedure 54, all conditions precedent to CPS Energys claims for relief have been performed or have occurred.

X.

JURY DEMAND

61.

CPS Energy demands a trial by jury.

XI.

PRAYER CPS Energy respectfully requests that Defendants be cited to appear and answer in this lawsuit; and that upon final hearing, the Court enter judgment in favor of CPS Energy and against Defendants as requested in this Petition, including, but not limited to the following:

(a) Specific performance pursuant to the agreements;

PLAINTIFFS ORIGINAL PETITION PAGE 17 (b) The declaratory relief requested in this Petition; (c) Costs and expenses of this lawsuit, including reasonable attorneys fees incurred by CPS Energy in prosecuting this action; (d) Pre-judgment and post-judgment interest on all monetary relief sought in this Petition at the highest rates allowed by law; and (e) Whatever other and further relief, both at law and in equity, that CPS Energy is justly entitled to receive.

DATED: June 20, 2023 Respectfully submitted, DYKEMA GOSSETT PLLC By: /s/ C. David Kinder C. David Kinder TX State Bar No. 11432550 Melanie L. Fry TX State Bar No. 24069741 Ryan D. Landry TX State Bar No. 24133526 Weston Centre, 112 E. Pecan Street, Suite 1800 San Antonio, Texas 78205 Telephone: (210) 554-5500 Fax: (210) 226-8395 DKinder@dykema.com MFry@dykema.com RLandry@dykema.com ATTORNEYS FOR PLAINTIFF CITY OF SAN ANTONIO, TEXAS ACTING BY AND THROUGH THE CITY PUBLIC SERVICE BOARD OF SAN ANTONIO, A TEXAS MUNICIPALLY-OWNED UTILITY

Automated Certificate of eService This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Dina Foster on behalf of David Kinder Bar No. 11432550 dfoster@dykema.com Envelope ID: 76801637 Filing Code

Description:

Petition Filing

Description:

CPS Energys Original Petition Status as of 6/21/2023 8:02 AM CST Associated Case Party: The City of San Antonio, Texas, acting by and through the City Public Service Bo Name C. DavidKinder Melanie Fry Ryan DLandry Dina Foster BarNumber Email dkinder@dykema.com mfry@dykema.com rlandry@dykema.com DFoster@dykema.com TimestampSubmitted 6/20/2023 7:09:05 PM 6/20/2023 7:09:05 PM 6/20/2023 7:09:05 PM 6/20/2023 7:09:05 PM Status SENT SENT SENT SENT

Docket Nos. STN 50-498 STN-50-499 72-1041 Exhibit K Letter from Dykema Gossett PLLC to NRG South Texas LP, NRG Energy, Inc., and Texas Genco GP, LLC, Re: Right of First Refusal Relating to Proposed Sale of South Texas Project Interest (June 20, 2023)

4869-0683-8123.1 Dykema Gossett PLLC Weston Centre 112 East Pecan Street, Suite 1800 San Antonio, TX 78205 WWW.DYKEMA.COM Tel: (210) 554-5500 Fax: (210) 226-8395 C. David Kinder Direct Dial: (210) 554-5421 Direct Fax: (866) 220-6457 Email: DKinder@dykema.com California l Illinois l Michigan l Minnesota l Texas l Washington, D.C. l Wisconsin June 20, 2023 Via Certified Mail, Return Receipt Requested NRG SOUTH TEXAS, L.P.

Attention: General Counsel 804 Carnegie Center Princeton, New Jersey 08540 Re:

Right of First Refusal Relating to Proposed Sale of South Texas Project Interest To Whom It May Concern:

We represent the City of San Antonio, acting by and through the City Public Service Board of San Antonio (CPS Energy) in connection with the above referenced matter. On June 1, 2023, CPS Energy discovered NRG South Texas, LPs (NRG) intent to sell its 44% interest in the South Texas Project (STP) to an affiliate of Constellation Energy (the Proposed Sale) through a press release issued by Constellation. For the reasons discussed below, pursuant to the Amended and Restated South Texas Project Participation Agreement by and among CPS Energy, Central Power and Light Company, Houston Lighting & Power Company, and the City of Austin effective November 17, 1997 (the Participation Agreement) as supplemented by the South Texas Project Supplemental Agreement effective as of October 29, 2007 by and between CPS Energy and NRG (the Supplemental Agreement), the structure of the Proposed Sale triggered NRCs requirement to notify CPS Energy of its intention to transfer its interest in STP and to provide CPS Energy the information required pursuant to Section 17.2 of the Participation Agreement.

As you know, Section 17 of the Participation Agreement generally requires an owner of STP seeking to transfer its ownership interest in STP to notify the other owners of such intended transfer at least seven months prior to the date on which the intended transfer is to be consummated and grants the other owners a right of first refusal (ROFR) to acquire such interest, or a portion thereof, in accordance with the terms of Section 17.

In 2007, NRG and CPS Energy expanded the scope of such ROFR right as set forth in Section 9.4 of the Supplemental Agreement:

9.4 Except as provided in Sections 9.1, 9.2 or 9.3 hereof, should either Party hereto desire to Dispose of all or any part of its Ownership Interest, together with its related

NRG South Texas, LP June 20, 2023 Page 2 4869-0683-8123.1 California l Illinois l Michigan l Minnesota l Texas l Washington, D.C. l Wisconsin rights under the Participation Agreement, the Operating Agreement, and its related rights as an owner of the South Texas Project under any agreement of which all Participants are parties (as any of those may be amended), of any Person (including another Participant), ready, able and willing to acquire same, the Party desiring to make such Disposition shall have the obligations, and the other Party shall have the rights, of a Participant under Section 17 of the Participation Agreement with respect to the Ownership Interest sought to be transferred. For avoidance of doubt, the Party not disposing of its interest in the Existing Units or in the Project shall have a right of first refusal with respect to a Disposition of an interest in the South Texas Project, whether that interest is transferred directly or as an upstream transfer of corporate assets, stock, or by other means, except as provided herein.

Notwithstanding anything in the Participation Agreement to the contrary, as between the Parties hereto and any sub-sequent purchaser from the Parties hereto, the rights of a Participant under Section 17 of the Participation Agreement shall be modified such that NRG and San Antonio are provided the priority rights to repurchase the ownership interests sold by NRG and San Antonio, respectively, pursuant to Section 5.4 of this Agreement as provided by Section 5.4.4, and to reflect that the Parties have hereby agreed that the process for exercise of such rights of first refusal shall be streamlined by removing any second election period resulting from failure of a Participant to exercise its right of first refusal, and addressing such circumstance simultaneously with the first election or within seven (7) business days of receiving notice of an election by another eligible Participant that impacts the first election. (Emphasis Added)

The express language of the Supplemental Agreement clearly evidences that NRG and CPS Energy did not intend to merely restate certain substantive provisions from the Participation Agreement in the Supplemental Agreement, but instead intended to modify certain provisions, such as the ROFR.

In fact, the Supplemental Agreement specifically provides that all of the provisions of the Participation Agreement remained in effect, except those provisions of the Participation Agreement that are affected by the Supplemental Agreement, and that the Supplemental Agreement governs as to those affected provisions. See Supplemental Agreement Section 12.1 (As among the Parties and Austin, all of the provisions of the Participation Agreement remain in effect, as do the provisions not affected by this Agreement as between the Parties. As between the Parties, the provisions of the Participation Agreement affected by this Agreement shall be governed hereby.) Section 9 of the Supplemental Agreement remains in effect as to NRCs interest in STP pursuant to the specific terms of the subsequent agreements executed by NRG and CPS Energy.

CPS Energy has independently obtained a copy of the Equity Purchase Agreement dated May 31, 2023 by and among Constellation Energy Generation, LLC, Texas Genco GP, LLC and Texas Genco LP, LLC (the Equity Purchase Agreement) indicating that the Proposed Sale is structured as an upstream transfer of equity interests. Further, as reflected in NRCs license transfer

NRG South Texas, LP June 20, 2023 Page 3 4869-0683-8123.1 California l Illinois l Michigan l Minnesota l Texas l Washington, D.C. l Wisconsin application filed with the Nuclear Regulatory Commission on June 12, 2023, NRG intends on consummating the Proposed Sale no later than December 31, 2023. Thus, pursuant to the Participation Agreement as supplemented by Section 9 of the Supplemental Agreement, the Proposed Sale as structured triggered NRCs requirement to notify CPS Energy of its intention to transfer its interest in STP and to provide CPS Energy the information required pursuant to Section 17.2 of the Participation Agreement.

To date, CPS Energy has not received written notification from NRG as required by Section 17.2 of the Participation Agreement, triggering the period for CPS Energy to determine whether or not it wishes to exercise the ROFR. The copy of the Equity Purchase Agreement CPS Energy obtained does not include the exhibits or schedules to such agreement. Accordingly, CPS Energy requests that NRG provide CPS Energy written notice of the Proposed Sale and the complete terms and conditions of such Proposed Sale, including but not limited to, a complete copy of the Equity Purchase Agreement with all schedules and exhibits to such agreement, any side or ancillary agreements, and any other materials necessary for CPS Energy to evaluate the terms and conditions of the Proposed Sale, as required pursuant to Section 17.2 of the Participation Agreement. Upon receipt of NRCs written notice with the required information, CPS Energy will evaluate the terms and conditions of the Proposed Sale and will notify NRG in accordance with the Participation Agreement of its decision regarding exercise of the ROFR for all or a part of NRCs interest in STP.

Sincerely, DYKEMA GOSSETT PLLC C. David Kinder cc:

NRG ENERGY, INC.

Via Certified Mail, RRR Attention: Brian Curci, Executive VP, Legal & General Counsel 804 Carnegie Center Princeton, New Jersey 08540 TEXAS GENCO GP, LLC AND Via Certified Mail, RRR TEXAS GENCO LP, LLC Attention: Cleve Lancaster, President 910 Louisiana Street, Suite B200 Houston, Texas 77002

Docket Nos. STN 50-498 STN-50-499 72-1041 Exhibit L Letter from CPS Energy to STPNOC, Re: Litigation Involving NRG South Texas, LPs Ownership Interest in the South Texas Project (June 23, 2023)

June 23, 2023 STP Nuclear Operating Company (STPNOC) Via electronic mail only:

Attn: Tim Powell, Chief Executive Officer gtpowell@stpegs.com P.O. Box 289 Wadsworth, TX 77483 Re:

Litigation Involving NRG South Texas, LPs Ownership Interest in the South Texas Project

Dear Mr. Powell:

By letter dated June 2, 2023, we informed you that CPS Energy and Austin Energy were in the process of evaluating legal options as a result of the announced sale of NRG South Texas, LPs (NRG) ownership interest in the South Texas Project (STP) to an affiliate of Constellation Energy (Constellation)(the Proposed Sale).

We are writing to inform you that CPS Energy filed suit on June 20, 2023, in Matagorda County against NRG and certain of its affiliates in connection with the Proposed Sale. Enclosed for your reference is a copy of CPS Energys Original Petition.

In light of the pending litigation, CPS Energy continues to object to Constellations attendance at any STPNOC Board of Directors meeting, to Constellation communicating with STPNOC officers and employees, and to Constellation visiting STP in connection with the Proposed Sale. Further, we would appreciate STPNOCs continued adherence to its commitments reflected in your response letter dated June 5, 2023, and to its governance documents.

Regards, CPS Energy Shanna M. Ramirez Chief Legal & Ethics Officer, General Counsel & Board Secretary Enclosure cc: Rachel Jackson, rljackson@stpegs.com

Docket Nos. STN 50-498 STN-50-499 72-1041 Exhibit M City of Austins Petition in Intervention, Case No. 23-7-0279, Matagorda County 130th District Court (July 31, 2023)

Page 1 of 10 CAUSE NO. 23-F-0279 CITY OF SAN ANTONIO TEXAS

§ IN THE DISTRICT COURT ACTING BY AND THROUGH THE

§ CITY PUBLIC SERVICE BOARD OF § SAN ANTONIO, A TEXAS

§ MUNICIPALLY-OWNED UTILITY

§ Plaintiff,

§

§ and CITY OF AUSTIN, TEXAS,

§ Plaintiff-Intervenor

§ MATAGORDA COUNTY

v.

§

§ NRG SOUTH TEXAS, LP; TEXAS

§ GENCO GP, LLC; TEXAS GENCO

§ LP, LLC; AND NRG ENERGY INC.,

§ 130th JUDICIAL DISTRICT COURT Defendants.

§ CITY OF AUSTINS PETITION IN INTERVENTION The City of Austin, Texas, acting by and through its municipally-owned utility Austin Energy (hereinafter, Austin Energy), respectfully files the following Plea in Intervention pursuant to Tex. R. Civ. P. 60. In support of this Plea in Intervention, Austin Energy respectfully shows as follows:

I.

PARTIES

1.

The City of Austin is a home-rule municipal corporation and political subdivision of the State of Texas, with its principal office in Travis County, Texas.

2.

Plaintiff, City Public Service Board of San Antonio, a Texas Municipally-Owned Utility (hereafter CPS Energy), is a municipally-owned electric and gas utility with its principal office in Bexar County, Texas.

3.

Defendant, NRG South Texas, LP (hereinafter, NRG South Texas), is a Texas limited partnership and may be served with process on its Registered Agent, CT Corporation System at 1999 Bryan Street, Ste. 900, Dallas, Texas 75201, or wherever else it may be found.

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4.

Defendant, Texas Genco GP, LLC (hereinafter, Texas Genco GP), is the general partner of NRG South Texas and owns one percent of NRG South Texas membership interests. Texas Genco GP is a Texas limited liability company and maybe served with process on its Registered Agent, CT Corporation System at 1999 Bryan Street, Ste. 900, Dallas, Texas 75201, or wherever else it may be found.

5.

Defendant, Texas Genco LP, LLC (hereinafter, Texas Genco LP), is the limited partner of NRG South Texas and owns 99 percent of NRG South Texas membership interests. Texas Genco LP is a Delaware limited liability company and may be served with process on its Registered Agent, The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, or wherever else it may be found.

6.

NRG Energy is the parent corporation of Texas Genco GP, Texas Genco LP and NRG South Texas. NRG Energy is a corporation organized under the laws of the State of Delaware and may be served with process on its Registered Agent, CT Corporation System at 1999 Bryan Street, Ste. 900, Dallas, Texas 75201, or wherever else it may be found.

II.

BACKGROUND

7.

Plaintiff, CPS Energy, filed suit on June 20, 2023 in the above-captioned case. Plaintiffs Original Petition is a breach of contract and declaratory judgment action related to the ownership and operation of the South Texas Project (hereinafter, STP), a nuclear power plant located in Matagorda County, Texas. CPS Energy, NRG South Texas, and Austin Energy are longstanding co-owners of an undivided interest in STP.

8.

CPS Energy, NRG South Texas, and Austin Energy (together, the Participants) are parties to the Amended and Restated South Texas Project Participation Agreement, dated

3 November 17, 1997 (the Participation Agreement), governing continued ownership and management of STP.

9.

Section 17.1 of the Participation Agreement sets forth a right of first refusal (the ROFR) related to any attempted transfer of any ownership interest or portion thereof in STP by a Participant.1

10.

Section 17.2 of the Participation Agreement requires any Participant to provide seven months prior notice to the other Participants of any transfer of interest in STP, including the date of the proposed transfer and the terms and conditions thereof.2

11.

Section 17.3 of the Participation Agreement gives any Participant the option to acquire all or part of any interest to be transferred by serving written notice of its intention upon Participants within three (3) months after service of the written notice of intention to transfer given pursuant to Section 17. 2.3 1 Sec. 17.1 Except as provided in Section 16 hereof, should any Participant, prior to the expiration of the period described in Section 17.12 hereof, desire to transfer its ownership, or any part thereof, in [STP] to any person, entity or another Participant, ready, able and willing to acquire same, the Participant desiring to make such transfer Shall obtain a written offer from the prospective transferee, setting forth the consideration and other terms of the offer, and each of the other Participants shall have the right of first refusal to acquire such interest on the basis of the following consideration:

17.1.1 If the offer is in cash, whether Payable in one payment or in installments, the amount of the bona fide written offer from the prospective transferee, payable as specified in the offer; or 17.1.2 If the offer is not in cash but is in securities having a readily ascertainable market value, the fair market value of the securities offered by the prospective transferee; or 17.1.3 If the offer is neither in cash nor in securities having a readily ascertainable market value, the fair market value of the consideration to be received for the ownership interest to be transferred.

2 Sec. 17.2 At least seven (7) months prior to the date on which the intended transfer is to be consummated, the Participant desiring to transfer shall serve written notice of its intention to do so upon all of the Participants. Such notice shall contain the proposed date of transfer and the terms and conditions of the transfer.

3 Sec. 17.3 Each Participant shall have the option to acquire all or any part of the interest to be transferred and shall exercise said option by serving written notice of its intention upon the Participant desiring to transfer and on the remaining Participants within three (3) months after service of the written notice of intention to transfer given pursuant to Section 17. 2 hereof. Failure of a Participant to exercise said option as provided herein within the time period specified shall be conclusively deemed to be an election not to exercise said option.

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12.

Section 17.12 of the Participation Agreement clarifies that the provisions of Section 17, including the ROFR, shall apply to the full extent permitted by law as long as two or more Participants own interests in STP.4

13.

On or about May 31, 2023, without notice to Participants, Texas Genco GP and Texas Genco LP entered into an Equity Purchase Agreement with Constellation Energy Generation, LLC (hereinafter, Constellation) in which Constellation agreed to purchase the ownership interests in NRG South Texas, along with its 44 percent interest in STP for $1,750,000,000 (the Proposed Sale). The Equity Purchase Agreement, which reflects a pending sale scheduled to close by December 31, 2023, constitutes a breach of contract by Defendants, for failure to give Participant co-owners proper notice, failure to provide required information, and denying Participant co-owners valid, enforceable, and exercisable ROFR.

14.

On June 2, 2023, CPS Energy and Austin Energy jointly sent a letter to NRG Energy to reserve all respective rights and remedies as STP owners, including the ROFR.

15.

In this lawsuit, CPS Energy asserts its ROFR with respect to any direct or indirect transfer of NRG South Texas interest in STP.

16.

CPS Energy is asserting its ROFR under the same contract [Participation Agreement] that Austin Energy relies upon.

III. INTERVENORS INTEREST

17.

At all times pertinent to this cause, Plaintiff-Intervenor was and remains a co-owner of STP, the asset at issue.

4 Sec. 17.12 It is intended that the provisions of this Section 17 shall, to the full extent permitted by law, continue in effect and be enforceable by the Participants, their successors and assigns, so long as two or more of them continue to own an interest in the [STP] and/or in the South Texas Plant Site, under this [Participation] Agreement.

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18.

On or about May 31, 2023, Texas Genco GP and Texas Genco LP entered into an Equity Purchase Agreement with Constellation in a manner that violates Austin Energys contractual rights, breaches Defendants contractual obligations and harms Plaintiff-Intervenors financial interests.

19.

A party has a justiciable interest in a lawsuit when its interests will be affected by the litigation. A party may intervene in a suit if it could have brought all or part of the same suit in its own name.

20.

Under Chapter 37 of the TEX. CIV. PRAC. & REM. CODE, as a party to the Participation Agreement, Plaintiff-Intervenor Austin Energy seeks a declaration of its rights and Defendants obligations, and also remedies for Defendants breach of the terms therein.

III. PLAINTIFF-INTERVENORS CAUSES OF ACTION COUNT ONE - BREACH OF CONTRACT / SPECIFIC PERFORMANCE

21.

Austin Energy, CPS Energy and the Defendants are parties to and bound by the Participation Agreement in which Defendants agreed to certain covenants and obligations as summarized above.

22.

Austin Energy has a valid and enforceable ROFR with regard to the Proposed Sale. The Proposed Sale falls directly within the ROFR terms of the Participation Agreement.

23.

The Proposed Sale triggers Austin Energys ROFR rights.

24.

The Defendants have breached their agreement with Austin Energy by failing to recognize, and expressly ignoring, Austin Energys ROFR as to the Proposed Sale.

25.

According to the Equity Purchase Agreement, the closing date of the Proposed Sale is anticipated to be on or before December 31, 2023, and the Defendants were required to give Austin

6 Energy written notice of the Proposed Sale on or before March 31, 2023, in accordance with the seven (7) month notice provision in Section 17.2 of the Participation Agreement.

26.

The Defendants have violated, and continue to violate, Section 17.2 of the Participation Agreement, by failing to give Austin Energy required written notice of the Proposed Sale.

27.

Further, the Defendants have failed to provide the full terms and conditions of the Proposed Sale in violation of Section 17.2 of the Participation Agreement, including but not limited to, a complete copy of the Equity Purchase Agreement with all schedules and exhibits to such agreement, any side or ancillary agreements, and any other materials necessary for Austin Energy to evaluate the terms and conditions of the Proposed Sale.

28.

Defendants have failed to acknowledge that Austin Energy has a contractually required three (3) month timeframe from the date it receives formal written notice of the Proposed Sale to determine whether to exercise its valid and enforceable ROFR with regard to the Proposed Sale.

29.

Defendants breached the applicable agreements with Austin Energy by:

• Failing to give Austin Energy timely written notice of the Proposed Sale;

• Failing to provide Austin Energy with required information related to the terms and conditions of the Proposed Sale;

• Failing to acknowledge Austin Energys three (3) month timeframe from the date of formal written notice to determine whether to exercise its valid and enforceable ROFR;

• Failing to allow Austin Energy the opportunity to exercise its valid and enforceable ROFR; and

• Otherwise failing to comply with various provisions of the applicable agreements.

30.

Defendants breaches of contract and continued refusal to recognize Austin Energys rights under the Participation Agreement have and will cause irreparable injury to Austin Energy.

Recovery of damages is inadequate to compensate Austin Energy for the loss of benefit of its bargain, particularly given the unique nature of STP, and the fact that Austin Energys ROFR right

7 to potential future electric generation from STP cannot adequately be replaced by the payment of money damages.

31.

Austin Energy is entitled to specific performance to compel Defendants to perform under the Participation Agreement, including but not limited to, a requirement that Defendants: provide proper notice under Section 17.2 of the Participation Agreement; provide full and complete information needed to disclose the complete terms and conditions of the Proposed Sale as required by Section 17.2 of the Participation Agreement; allow Austin Energy a three (3) month time frame from the date of formal written notice to allow Austin Energy to determine whether to exercise its valid and enforceable ROFR; and recognize Austin Energys ROFR rights.

32.

Austin Energy further requests judicial authority to exercise any and all rights and remedies relating to the ROFR as permitted under the Participation Agreement. Such request is made without waiver of or election of certain remedies permitted under the applicable agreements and applicable law.

COUNT TWO - DECLARATORY JUDGMENT

33.

The facts described in this Petition in Intervention present an actual controversy within this Courts jurisdiction. A real and substantial controversy exists between the parties regarding the parties obligations under the Participation Agreement. A valid and enforceable agreement exists between Austin Energy, CPS Energy and the Defendants. The Participation Agreement contains the following provisions:

17. RIGHT OF FIRST REFUSAL 17.1 Except as provided in Section 16 hereof, should any Participant, prior to the expiration of the period described in Section 17.12 hereof, desire to transfer its ownership, or any part thereof, in the [STP] to any person, entity or another Participant

8 shall obtain a written offer from the prospective transferee and each of the other Participants shall have the right of first refusal to acquire such interest.

17.2 At least seven (7) months prior to the date on which the intended transfer is to be consummated, the Participant desiring to transfer shall serve written notice of its intention to do so upon all of the Participants. Such notice shall contain the proposed date of transfer and the terms and conditions of the transfer.

17.3 Each Participant shall have the option to acquire all or any part of the interest to be transferred and shall exercise said option by serving written notice of its intention upon the Participant desiring to transfer and on the remaining Participants within three (3) months after service of the written notice of intention to transfer given pursuant to Section 17.2 hereof. Failure of a Participant to exercise said option as provided herein within the time period specified shall be conclusively deemed to be an election not to exercise said option.

34.

Pursuant to Chapter 37 of the TEX. CIV. PRAC. & REM. CODE, Austin Energy seeks a declaration of the rights, status, and other legal relations between the parties relating to the ROFR, pursuant to the Participation Agreement including but not limited to, the following declarations:

• That Austin Energy is entitled to receive, and that the Defendants must provide Austin Energy with timely written notice of the Proposed Sale;

• That Austin Energy is entitled to receive, and Defendants must provide, Austin Energy with requested information related to the terms and conditions of the Proposed Sale, including but not limited to, a complete signed copy of the Equity Purchase Agreement with all schedules and exhibits to such agreement, any side or ancillary agreements, and any other materials necessary for Austin Energy to evaluate the terms and conditions of the Proposed Sale;

• That Austin Energy is entitled to a three (3) month timeframe from the date of formal written notice and receipt of all information detailing the terms and conditions of the Proposed Sale, to determine whether to exercise its valid and enforceable ROFR; and

• That Austin Energy has a valid and enforceable ROFR as to the Proposed Sale.

35.

Austin Energys request for declaratory relief involves NRG South Texas current undivided ownership interest in STP, which is the subject of the Proposed Sale.

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36.

Austin Energy requests declaratory relief of all other rights and obligations, as necessary, as between the parties.

37.

Pursuant to TEX. CIV. PRAC. & REM. CODE § 37.009, Austin Energy further seeks recovery of its attorneys fees and costs that are reasonable and necessary, equitable, just, and as permitted by the Court in securing declaratory relief against the Defendants.

IV. PLAINTIFF-INTERVENORS REQUEST FOR ATTORNEYS FEES AND COSTS

38.

Pursuant to Tex. Civ. Prac. & Rem. Code §§ 37.001, et seq. and 38.001, et seq., Austin Energy hereby demands an award of its attorneys fees and costs taxed against Defendants.

PRAYER Intervenor respectfully asks that upon service of the Original Petition in Intervention, Defendants be cited to appear and answer the same according to law; that there be a judgment entered in favor of Intervenor and against Defendants in the form of declaratory relief and specific performance; and that Intervenor be awarded all court costs and reasonable attorneys fees; and for any and all further relief to which Intervenor may be justly entitled to in law or in equity.

Respectfully submitted, ANNE L. MORGAN, CITY ATTORNEY MEGHAN L. RILEY, CHIEF, LITIGATION

/s/ Ariane V. Arth ARIANE ARTH State Bar No. 24098553 Assistant City Attorney City of Austin - Law Department P. O. Box 1546 Austin, Texas 78767-1546 Telephone: (512) 974-3454 Facsimile: (512) 974-1311 ATTORNEYS FOR PLAINTIFF INTERVENOR CITY OF AUSTIN

10 CERTIFICATE OF SERVICE This is to certify that I have served a copy on all parties, or their attorneys of record, in compliance with the Texas Rules of Civil Procedure, this 31st day of July, 2023.

Via E-service:

C. David Kinder TX State Bar No. 11432550 Melanie L. Fry TX State Bar No. 24069741 Ryan D. Landry TX State Bar No. 24133526 Weston Centre, 112 E. Pecan Street, Suite 1800 San Antonio, Texas 78205 Telephone: (210) 554-5500 Fax: (210) 226-8395 DKinder@dykema.com MFry@dykema.com RLandry@dykema.com ATTORNEYS FOR PLAINTIFF CITY OF SAN ANTONIO, TEXAS ACTING BY AND THROUGH THE CITY PUBLIC SERVICE BOARD OF SAN ANTONIO, A TEXAS MUNICIPALLY-OWNED UTILITY

/s/ Ariane V. Arth ARIANE ARTH

Docket Nos. STN 50-498 STN-50-499 72-1041 Exhibit O Letter from STPNOC to CPS Energy and Austin (July 30, 2023)

July 30, 2023 Devi Kumar-Nambiar Vice President & Deputy General Counsel l Legal Services CPS Energy l P.O. Box 1771, San Antonio, Texas 78296 l MD: CT1201 Office: 210.353.2069 l Fax: 210-353-2628 E-mail: sdkumar-namb@cpsenergy.com Ariane V. Arth Assistant City Attorney City of Austin Law Department Ariane.Arth@austintexas.gov Direct Telephone: (512) 974-3454 Re:

NRCs License Transfer Application Devi and Ariane, STPNOC leadership has been in regular communication with all owners representatives leading to the preparation and filing of the License Transfer Application (LTA) of June 12, 2023. With respect to your letter requesting STPNOC withdraw the LTA, you provide no reason or justification for STPNOC to insert itself in this co-owner dispute by seeking to withdraw NRCs application at the request of other owners.

We have ensured the NRC is aware of your initiation of legal action under the Participation Agreement. As co-owners, you are free to submit comments asking NRC to defer a final decision until the ROFR is resolved or submit a request for hearing as specified in the Federal Register notice of July 19, 2023. Please be assured, as you requested in your June 2 letter, STPNOC has not and will continue to refrain from expressing views on the rights of its owners under the Participation Agreement, and thus will not take a position in this dispute among its owners over interpretation of that agreement.

Sincerely, G.T. Powell President and CEO J.J.Powell