Case 16-10790-KJC Doc 286-5 Filed 05/25/16 Page 1 of 10 Bledsoe Declaration Exhibit 3
Case 16-10790-KJC Doc 286-5 Filed 05/25/16 Page 2 of 10 David A. Bledsoe, OSB No. 851548 DBledsoe@perkinscoie.com PERKINS COlE LLP 1120 N.W. Couch Street, 10th Floor -4128 Telephone: 503.727.2000 Facsimile: 503.727.2222 Attorneys for Plaintiff Portland General Electric Company UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION Portland General Electric Company, Plaintiff V. Abengoa S.A., Defendant. Case No. COMPLAINT By Plaintiff Portland General Electric Company Pursuant to Fed. R. Civ. P. 7 Portland General Electric Company ("PGE") alleges as follows: 1- COMPLAINT 62187-0016/129878410.1 Perkins Cole LLP Phone: 503-727-2033
Case 16-10790-KJC Doc 286-5 Filed 05/25/16 Page 3 of 10 PARTIES 1. PGE is a corporation incorporated under the laws of the State of Oregon, with its principal place of business in Portland, Oregon. 2. Abengoa, S.A. ("Abengoa") is a corporation that is incorporated under the laws of Spain, with its principal place of business in Seville, Spain. 3. Abeinsa EPC LLC is a limited liability company that is formed under the laws of the State of Delaware, with its principal place of business in Phoenix, Arizona. 4. Abener Construction Services, LLC (formerly known as Abener Engineering and Construction Services, LLC) is a limited liability company that is formed under the laws of the State of Delaware, with its principal place of business in Chesterfield Missouri. 5. Teyma Construction USA, LLC is a limited liability company that is formed under the laws of the State of Delaware, with its principal place of business in Phoenix, Arizona. 6. Abeinsa Abener Teyma General Partnership is a partnership formed under the laws of the State of Delaware, with its principal place of business in Phoenix, Arizona. 7. Abeinsa EPC LLC, Abener Construction Services, LLC, Teyma Construction USA, LLC, and Abeinsa Abener Teyma General Partnership will be referred to collectively as the "Abeinsa Companies." JURISDICTION AND VENUE 8. This Court has jurisdiction of the subject matter of this claim pursuant to 28 U.S.C. 1332 (diversity jurisdiction). 9. Venue is proper in this Court pursuant to 28 U.S.C. 1391(a). GENERAL ALLEGATIONS PGE and Abeinsa Enter into the EPC Contract 10. In 2011, PGE began a request for proposals ("REP") process to seek a prime contractor to develop the Carty Project. Twelve proposals were submitted to PGE. 1- COMPLAINT 62187-0016/129878410.1 Phone: 503-727-2033
Case 16-10790-KJC Doc III III 286-5 III Filed 05/25/16 Page 4 of 10 11. The winning proposal was submitted by the Abeinsa Companies. 12. The Abeinsa Companies are all affiliated with each other and with Abengoa. 13. Abeinsa and PGE entered into a Turnkey Engineering, Procurement & Construction Agreement for Carty Generating Station between PGE and Abeinsa ("EPC Contract") on or about June 3, 2013. 14. Abengoa is not a party to the EPC Contract. 15. Article 40.18 of the EPC Contract provides that the EPC Contract shall be governed by, and construed, interpreted and enforced in accordance with, the substantive law of the State of Oregon, excluding any conflict of law principles. It also provides that the Parties irrevocably consent to the exclusive jurisdiction of any U.S. federal court with jurisdiction over Oregon. PGE and Abengoa Entered into the Guaranty 16. Abengoa and PGE entered into an agreement signed on or about July 30, 2013 ("Guaranty") under which Abengoa guaranteed PGE that if the Abeinsa Companies failed to perform its duties under the EPC Contract, then PGE may seek recourse against Abengoa according to the terms of the Guaranty. 17. Paragraph 1 of the Guaranty provides that PGE, in order to make a demand under the Guaranty, must provide written notice to Abengoa of the demand. 18. The Abeinsa Companies are not parties to the Guaranty. 19. Oregon law is the governing law under the Guaranty. 20. Article 10 of the Guaranty contains dispute resolution provisions. Article 10 provides that in the event a dispute arises between Abengoa and PGE in connection with the Guaranty ("Dispute"), then either Abengoa or PGE may refer the dispute to final and binding arbitration, in accordance with the procedures set forth in Section 10(b) of the Guaranty after conferrals. 2- COMPLAINT 62187-0016/129878410.1 Perkins Cole LLP Phone: 503-727-2033
Case 16-10790-KJC Doc 286-5 Filed 05/25/16 Page 5 of 10 PGE Terminated the Abeinsa Companies for Default under the EPC Contract, but PGE Has Not Submitted Any Written Notice of Demand to Abengoa under the Guaranty 21. PGE sent the Abeinsa Companies a notice of contractor event of default and termination under the EPC Agreement on December 18, 2015. 22. The termination notice informed the Abeinsa Companies that they were in material default under Articles 29.1.1, 29.1.2, 29.1.14, and 7.10 of the EPC Contract. 23. PGE has not asserted any claim against Abengoa under the Guaranty, in the form of a written notice of demand or otherwise. 24. On November 25, 2015, Abengoa made a filing with a Spanish court under Article 5bis of Spanish law 22/2003 of July 9, 2009 ("Preconcurso filing"). 25. A Preconcurso filing allows a company in debt a three-month grace period, which can be extended to four months, during which the debtor company may negotiate with creditors to try to resolve its financial difficulties. 26. A debtor company is entitled to submit a Preconcurso filing only if it is currently in a period of financial difficulty and risks insolvency in the near future. 27. If, at the end of the three- or four-month period following the Preconcurso filing, the debtor company is insolvent, it must file a request for insolvency (Solicitud de Concurso). Abengoa Filed a Request for Arbitration Despite PGE Not Having Made a Written Demand Under the Guaranty 28. On December 31, 2015, Abengoa submitted a request for arbitration with the International Chamber of Commerce ("ICC"). 29. On January 28, 2016, PGE received from the ICC its first notice of Abengoa's Request for Arbitration. 30. Later on January 28, PGE received an email from Abengoa, with attachments, providing Abengoa's first notice to PGE that Abengoa had submitted the Request for Arbitration. 3- COMPLAINT 62187-0016/129878410.1 Phónè: 503-727-2033
Case 16-10790-KJC Doc 286-5 Filed 05/25/16 Page 6 of 10 Case 3:16cv00375 Document 1 Filed 02/29/16 Page 5 of 9 31. The request for arbitration does not allege that PGE has submitted a written notice of demand to Abengoa pursuant to Article 1 of the Guaranty. 32. In the request for arbitration, Abengoa implicitly acknowledges that PGE had not provided written notice of demand to Abengoa. 33. In the request for arbitration, Abengoa identifies itself as the Claimant and PGE as the Respondent. Abengoa then identifies the Abeinsa Companies as "Impleaded Parties" and the "Contractor." 34. The Abeinsa Companies are affiliated with Abengoa. 35. Abengoa and the Abeinsa Companies are represented by the same law finm 36. The Statement of Relief Sought in the request for arbitration includes as remedies a declaration that the Contractor is not in default of the EPC Agreement and a declaration that the Respondent's termination of the EPC Agreement was wrongful and resulted in a breach of the EPC Agreement. 37. In the Statement of Relief Sought, Abengoa does not allege a claim against the Abeinsa Companies that can properly be characterized as an impleader claim. 38. In the Statement of Relief Sought, Abengoa does not allege a claim against the Abeinsa Companies for which the Abeinsa Companies can properly be characterized as a respondent. 39. In the Statement of Relief Sought, Abengoa does not allege any other claim against the Abeinsa Companies where Abengoa's and the Abeinsa Companies' interests are in conflict. 40. On January 6, 2016, the ICC submitted a letter to counsel for Abengoa and the Abeinsa Companies, which stated in part, "Please note that the parties named as "Impleaded Parties" have been included as Claimants for purposes of the caption. Please ensure that the caption is accurate and inform us otherwise." 4- COMPLAINT 62187-0016/129878410.1 Phone: 503-727-2033
Case 16-10790-KJC Doc 286-5 Filed 05/25/16 Page 7 of 10 Case 3:16-cv00375 Document 1 Filed 02/29/16 Page 6 of 9 41. Counsel for Abengoa and the Abeinsa Companies responded by email on January 14, 2016, stating in part, "The Parties named in the request for arbitration as 'Impleaded Parties' should not be included as Claimants for purposes of the caption for this case. If such a designation is required, for purposes of the caption, said parties should be named as 'Respondents'." The Abeinsa Companies Are Not Entitled to Litigate a Dispute with PGE in Arbitration 42. The EPC Contract contains the following forum selection clause: "The Parties irrevocably consent to the exclusive jurisdiction of any U.S. federal court with jurisdiction over Oregon." The EPC Contract defines "Parties" to mean PGE and the Abeinsa Companies. 43. The EPC Contract contains a choice of law clause that provides, "This Agreement shall be governed by, and construed, interpreted and enforced in accordance with, the substantive law of the State of Oregon, excluding any conflict of law principles." 44. The Abeinsa Companies are not a party to the Guaranty. 45. The Abeinsa Companies are not entitled to pursue an arbitration action against PGE under the Guaranty. PGE Will Likely Suffer Hardships and Irreparable Harm If the ICC Arbitration Proceeds at This Time 46. If the arbitration initiated by Abengoa were to proceed at this time, PGE would very likely suffer irreparable harm because PGE would have to divert the time and energy of key personnel involved with the Carty Project to the arbitration. 47. It is of great importance to PGE and its customers that the Carty Project be completed in a timely manner. 48. Certain key PGE personnel are working long and arduous days in order to try to assure that the Carty Project is completed on schedule because a late completion would be extremely costly to PGE and its customers. 5. COMPLAINT 62187-0016/129878410.1 Phone: 503-727-2033
Case 16-10790-KJC Doc 286-5 Filed 05/25/16 Page 8 of 10 Case 3:16-cv-00375 Document 1 Filed 02/29/16 Page 7 of 9 49. If these key personnel must spend part of their time providing support for the arbitration, this would very likely have an adverse impact on the timeliness of the Carty Project and possibly impact Oregon Public Utility Commission proceedings. 50. If the arbitration were to proceed at this time, PGE would also suffer harm because it would incur the costs of unnecessary litigation. 51. If the arbitration initiated by Abengoa proceeds at this time, PGE risks not just incurring litigation costs that could be delayed to a later time, it risks incurring litigation costs that it would never have had to incur. 52. Abengoa and the Abeinsa Companies do not risk any hardship whatsoever if the ICC arbitration is stayed. This is because Abengoa has no risk of being found liable under the Guaranty so long as PGE submits no written notice of demand under the Guaranty. The Abeinsa Companies haves no risk under the Guaranty because they are not parties to the Guaranty. The Public Interest 53. PGE ' s customers have an interest in the arbitration being preliminarily enjoined. Absent a preliminary injunction, PGE risks having delays in the completion of the Carty Project because the time and attention of key PGE personnel would be diverted. Delays would harm PGE's customers, who would suffer a delay in access to 440 megawatts of energy, which is enough to provide energy to serve approximately 300,000 households. 54. No public interest would be served by allowing Abengoa to proceed with an arbitration that may never be needed and is premature at best because if, in the future, PGE gives notice of a demand against Abengoa under the Guaranty, Abengoa will have an opportunity to exhaust the dispute resolutions provisions of the Guaranty and then, if still necessary, present its case to the ICC. 6- COMPLAINT 62187-0016/129878410.1 Phone: 503-727-2033
Case 16-10790-KJC Doc 286-5 Filed 05/25/16 Page 9 of 10 CLAIM FOR RELIEF Injunction Based on the Guaranty 55. PGE realleges and incorporates herein by reference the allegations of Paragraph 1-54 above as though set forth in full. 56. Because there is no dispute to resolve under the Guaranty and there is no matter to be resolved in an ICC arbitration, PGE respectfully requests that the Court enter an injunction enjoining (1) Abengoa, S.A. and its officers, agents, servants, employees, and attorneys from proceeding with arbitration against PGE before the International Chamber of Commerce unless and until PGE makes a demand upon Abengoa, S.A. under the Guaranty signed by Abengoa, S.A. on or about July 30, 2013; and (2) Abeinsa EPC LLC; Abener Construction Services, LLC (formerly known as Abener Engineering and Construction Services, LLC); Teyma Construction USA LLC; and Abeinsa Abener Teyma General Partnership and their officers, agents, servants, employees, and attorneys, who have acted in active concert or participation with Abengoa, S.A., from proceeding with arbitration against PGE before the International Chamber of Commerce unless and until PGE makes a demand that Abengoa, S.A. pay PGE under the Guaranty signed by PGE and Abengoa, S.A. on or about July 30, 2013. PRAYER FOR RELIEF PGE prays for judgment and relief against Abengoa and Abeinsa for: 1. An injunction enjoining Abengoa, S.A. and its officers, agents, servants, employees, and attorneys from proceeding with arbitration against PGE before the International Chamber of Commerce unless and until PGE makes a demand upon Abengoa, S.A. under the Guaranty signed by Abengoa, S.A. on or about July 30, 2013; 2. An injunction enjoining Abeinsa EPC LLC; Abener Construction Services, LLC (formerly known as Abener Engineering and Construction Services, LLC); Teyma Construction USA LLC; and Abeinsa Abener Teyma General Partnership and their officers, agents, servants, employees, and attorneys, who have acted in active concert or participation with Abengoa, S.A., 7- COMPLAINT 62187-0016/129878410.1 Phone: 503-727-2033
Case 16-10790-KJC Doc 286-5 Filed 05/25/16 Page 10 of 10 from proceeding with arbitration against PGE before the International Chamber of Commerce unless and until PGE makes a demand that Abengoa, S.A. pay PGE under the Guaranty signed by PGE and Abengoa, S.A. on or about July 30, 2013; 3. Costs and disbursements incurred in this action; and 4. Such other relief as this Court may deem just and proper. DATED: February 29, 2016 PERKINS COlE LLP By: s/david A. Bledsoe David A. Bledsoe, OSB No. 851548 DBledsoe@perkinscoie.com 1120 N.W. Couch Street, 10th Floor -4128 Telephone: 503.727.2000 Facsimile: 503.727.2222 Attorneys for Plaintiff Portland General Electric Company 8- COMPLAINT Perkins Cole LLP 62187-0016/129878410.1 Phone: 503-727-2033