NINA TEXAS 3 LLC and NINA TEXAS 4 LLC, Defendants. THE CITY ...

More documents

Recommendations

Info

number one spot for loan guaranty consideration. Given the size of the various projects that arecompeting for DOE loan guaranties, it is likely that a further fall to third place would mean a lossof DOE financing altogether, and a complete loss of the Project. In addition, the Obamaadministration has publicly stated that it intends to approve loan guaranties for two pendingnuclear projects. Accordingly, the DOE’s pending decision presents an imminent and urgentneed for decisive action in order to prevent irreparable harm.29. The NINA Companies have no adequate remedy at law, the harm presented by theindecisiveness of CPS Energy is irmriinent, and the NINA Companies are likely to ultimatelysucceed on the merits of their claims. Moreover, allowing injunctive relief would preserve thestatus quo which has, until recently, meant that all pre-FNTP costs have been paid by theCounterparties as agreed and mandated by the preconstruction schedule. Consequently, theNINA Companies seek a temporary injunction:(a) declaring that CPS Energy has withdrawn from the Project and has nocontinuing ownership interest in the Project;or, in the event that the Court finds that the temporary injunction set forthabove is inappropriate at this time,(b) requiring, during the pendency of this case, CPS Energy to (i) continue tofund all pre-FNTP costs as previously agreed and as previously paid by CPSEnergy up to the $2.4 billion to which the Counterparties have committed; and(ii) not act or fail to act in a manner that delays the development of theProject.C. COUNT THREE--DECLARATORY RELIEF30. The NINA Companies incorporate all preceding paragraphs by reference.31. Although CPS Energy has not formally notified the NINA Companies underSection 5.3 of the Supplemental Agreement that is it withdrawing from the Project, CPSEnergy’s conduct described above constitutes a constructive withdrawal under Section 5.3.DEFENDANTS’ ORIGINAL ANSWER TO PLAINTIFF’ S ORIGINAL PETITIONAND DEFENDANTS’ COUNTERCLAIM PAGE 12
Accordingly, the NINA Companies seek a declaration from this Court that CPS Energy hasconstructively withdrawn from the Project under Section 5.3 of the Supplemental Agreement.32. In addition to the action cited above, CPS Energy has taken other steps that havestalled the progress of the Project and have threatened its viability. For example, CPS Energyfailed to attend a critical Project Review Meeting in early December 2009. When representativesof CPS Energy have attended meetings, they have repeatedly claimed that they are notauthorized to make any decisions whatsoever. Less than one week before the start of 2010, CPSEnergy has not even held a board meeting to obtain authorization for any Project spending in2010. This is so even though Fluor, as noted above, has demanded that the Counterpartiesprovide funding assurance by no later than December 31, 2009. CPS Energy has also blockedthe approval of several pending purchase orders that CPS Energy kaaew were critical to theProject continuing on schedule. When the NINA Companies offered to assume CPS Energy’sobligations with respect to the purchase orders to keep the Project on schedule, CPS Energydemanded that the project manager reject the NINA Companies’ offer. After having alreadydisrupted the schedule, CPS Energy later reversed course on December 8, 2009, after filing thislawsuit, and approved the purchase orders.33. In its Original Petition, CPS Energy claims that there is ambiguity surroundingthe parties’ rights and obligations with respect to a withdrawal from the Project by CPS Energy.To the contrary, the Agreements clearly and unambiguously provide that, upon its withdrawal,CPS Energy will forfeit its ownership interest in the Project and receive no payment from theNINA Companies for the costs CPS Energy incurred in the Project or for the value of CPSEnergy’s forfeited interest in the Project.DEFENDANTS’ ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITIONAND DEFENDANTS’ COUNTERCLAIM PAGE 13
Page 1 and 2: THE CITY OF SAN ANTONI~FE~ [D§ IN
Page 3 and 4: time, the NINA Companies have remai
Page 5 and 6: to fund $2.4 billion in costs for e
Page 7 and 8: contractor on the Project, informed
Page 9 and 10: withdraws. In fact, there is no amb
Page 11: as to how this uncertainty could po
Page 15 and 16: 37. The NINA Companies respectfully

NINA TEXAS 3 LLC and NINA TEXAS 4 LLC, Defendants. THE CITY ...

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?