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Yes, please.
-----Original Message----- From: Brownfeld, Gail Sent: Monday, September 10, 2001 8:13 PM To: Sanders, Richard B. Subject: FW: Foster Wheeler suggested language for delay damages Let me know if you'd like me to handle the Pain Creek matter. Thanks. -----Original Message----- From: Lund, David Sent: Mon 9/10/2001 4:31 PM To: Brownfeld, Gail; Millie.Hewes@nepco.com Cc: Sanders, Richard B. Subject: RE: Foster Wheeler suggested language for delay damages Of course Gail. I'm sorry you didn't get a copy sooner. Millie, Please make a copy of the arbitration demand and our response that Seth Price submitted on our behalf. This is entitled "Foster Wheeler Limited vs. NEPCO" Please fax or overnight mail the copy to Gail Brownfeld at Enron, EWS. Go to the Enron web site (People Finder) to locate her mailing address. Thanks. By copy to Richard Sanders, I left a voice message last week with you describing a new matter we are developing as a claim against Overland Construction, Inc. (a subsidiary of Black and Veatch) on a project called "Payne Creek", located in central Florida. Considering the losses suffered to date ($7 Million) the project is now spelled "Pain Creek". I spoke to Schwartzenburg about it and he suggested we enlist your group for assistance. I have also retained Seth Price's firm (with Derrick's approval) to help evaluate and develop the claim. I would like to schedule a conference call with Seth, myself and a member of your group to review the claim. Schwartzenburg and myself are available on Thursday, September 13th and so is Seth but only in the morning. Given the time zone differences between Seth and myself, I would like to target 11:00 AM central time. Let me know if Gail or someone else will be the assigned attorney. The claim involves construction cost overruns due to errors in the owners specification. Thanks. David H. Lund, Jr. Assistant General Counsel National Energy Production Corporation 11831 North Creek Parkway N. Bothell, WA 98011 425-415-3138 Fax: 425-415-3032 David.Lund@nepco.com or davidlu@nepco.com -----Original Message----- From: Brownfeld, Gail [ <mailto:Gail.Brownfeld@ENRON.com<] Sent: Monday, September 10, 2001 10:34 AM To: Lund, David Cc: Sanders, Richard B. Subject: RE: Foster Wheeler suggested language for delay damages David, Sorry for the phone tag of last week. The reason I was calling actually related to the attached.Can I get a copy of the file on this and also can we schedule a call with outside counsel to discuss this matter? Apparently, life at EWS in not that different from EI and as the trusty litigation manager, I need to be involved in this. To the extent that I have suggested a call on Wednesday to discuss the Pakistan case, maybe you and I can arrange something with Seth to occur before or after that call. It would be helpful to have what was filed beforehand, if it could be arranged. Thanks in advance. -----Original Message----- From: Lund, David Sent: Thursday, August 30, 2001 2:18 PM To: Brownfeld, Gail Subject: RE: Foster Wheeler suggested language for delay damages Yes, against NEPCO. We have retained Seth Price of Shapiro Fussell in Atlanta. I have Derrick's approval. The action was delivered two weeks ago and then put on hold. After the unsuccessful settlement meeting, it was ignited again. Seth will issue our response on Tuesday (9/4). Seth has worked on NEPCO matters before and is familiar with our business practices and contract terms with suppliers. This is rather new matter and I didn't have the opportunity to involve you earlier. David H. Lund, Jr. Assistant General Counsel National Energy Production Corporation 11831 North Creek Parkway N. Bothell, WA 98011 425-415-3138 Fax: 425-415-3032 David.Lund@nepco.com or davidlu@nepco.com -----Original Message----- From: Brownfeld, Gail [ <mailto:Gail.Brownfeld@ENRON.com<] Sent: Thursday, August 30, 2001 11:46 AM To: Lund, David; Schwartzenburg, John Subject: RE: Foster Wheeler suggested language for delay damages Dave, Was the arbitration initiated against NEPCO? If so, who has been retained to handle it? -----Original Message----- From: Lund, David Sent: Thursday, August 30, 2001 12:30 PM To: Schwartzenburg, John Cc: Brownfeld, Gail Subject: FW: Foster Wheeler suggested language for delay damages This is a heads up to a mounting dispute with a major equipment supplier, Foster Wheeler Limited (HRSG supplier). Currently they have initiated an arbitration action before the AAA here in Seattle for a payment claim ($1.2 M) on the Linden, NJ project of which we have held back payment to satisfy our claim for delay LDs and re-work ($3.8 M). While this action is pending, FWL has initiated some unlawful bargaining tactics on our Lakeworth, FL project. More of the drama is outlined below. No need for action here. David H. Lund, Jr. Assistant General Counsel National Energy Production Corporation 11831 North Creek Parkway N. Bothell, WA 98011 425-415-3138 Fax: 425-415-3032 David.Lund@nepco.com or davidlu@nepco.com -----Original Message----- From: B-David Lund Sent: Wednesday, August 29, 2001 7:03 PM To: B-Galen Torneby Cc: B-Bob Black; B-Don Campbell; B-Greg Tardanico; B-Mike Ranz; B-Daniel Haas; B-David Hattery; 'Seth Price' Subject: RE: Foster Wheeler suggested language for delay damages ATTORNEY-CLIENT COMMUNICATION; PRIVELEGED AND CONFIDENTIAL Galen, I don't have the full history of dealing on this purchase order with FWL, but my instincts say we don't have to accept "material" changes to the terms on the eve of signing a PO. FWL's attempt to adjust significant delay risk at the eleventh hour constitutes a breach of good faith and fair dealing. It is as if we were to sign the PO based on weeks of review of a firm and final price but mark down the price a few million on the final draft because we felt we were taken to the cleaners on a previous job they sold to us. FWL needs to be instructed to accept the PO without the proposed changes. If they refuse, we have (and we must tell them) the choice to contract with another party and hold them liable for the extra cost of another supplier to make the schedule required. This liability is based on breach of an implied contract and FWL faces damages for detrimental reliance (that would be the incremental cost above FWL's firm price charged by the replacement vendor). The reliance argument is that we excused other bidders weeks ago and chose to exclusively deal with FWL based on agreement (reliance) of terms and conditions presented in earlier drafts of the PO or referred to in previous PO documents. The detriment argument is FWL knew they had us captive to them on this deal. By going forward without other bidders, we lost price protection and commitment for schedule by other bidders, therefore we are at a detriment without market forces. In the best world, our purchasing activities need to keep proposals competitive by not dropping back to one supplier for critical path equipment. I mentioned a choice here, the other choice is to continue to deal with FWL and accept their additional terms because the risk of changing horses and being successful on a lawsuit based on implied contract and detrimental reliance outweighs the risk and cost of having to "mitigate" the effect of LDs on FWL if critical path work is not impacted or hard to document and prove it was impacted, and whether our obligations were fulfilled in this respect. Since FWL has now opened the door to change "material" terms on the eve of signing, we have the opportunity to do the same with them, but that doesn't help if the parties continue to go in opposite directions while your end date stays the same. I would say they know this is a dilemma to us and are betting we will deal with them on these new first-time "material" changes to the PO terms. If we go with the second choice, I would encourage NEPCO and Enron to take FWL off any preferred bidders list. In addition, I thought I heard from the folks who attended the Linden 6 settlement meeting a week ago that the parties said they would not let the litigation on Linden 6 effect our other on-going deals. Apparently FWL is taking their issues on Linden 6 over to other deals. We may want to do the same. Stepping back a bit, unless our documents and witnesses are crystal clear on the implied contract theory and we have a clear fact pattern for detrimental reliance, I wouldn't lick our chops and be confident that we got them on this liability. I am willing to advance an argument for posture purposes in order to force some conclusion on the PO terms that they have attempted to open up. And with what little I know thus far, I would encourage we try to strike a deal in lieu of another lawsuit. David H. Lund, Jr. Assistant General Counsel National Energy Production Corporation 11831 North Creek Parkway N. Bothell, WA 98011 425-415-3138 Fax: 425-415-3032 David.Lund@nepco.com or davidlu@nepco.com -----Original Message----- From: B-Galen Torneby Sent: Wednesday, August 29, 2001 1:22 PM To: B-David Lund Cc: B-Bob Black; B-Don Campbell; B-Greg Tardanico; B-Mike Ranz Subject: Foster Wheeler suggested language for delay damages << File: mom-0822.doc << << File: 8&13.doc << David, I am forwarding an email from Mr. Garry Greatrix, Project Manager, Foster Wheeler Ltd. Please read the document attached entitled 8&13.doc. This has been presented as revised language to "all NEPCO contracts" from Foster Wheeler. This suggested language has been presented as endorsed by Foster Wheeler legal and executive management. The FW team explained that this language resulted from what they have experienced with NEPCO on recent projects, specifically Linden 6 and Kendall and that they cannot sign the purchase contract without it. Since this affects more than the Lake Worth Project I felt any acceptance or dialog regarding FW's suggested language would need to be reviewed and approved by NEPCO legal and executive team. Galen J. Torneby Project Manager National Energy Production Corporation (NEPCO) 11831 North Creek Parkway North Bothell, WA 98011 USA Tel: 425-415-3052 Cell: 425-922-0475 Fax: 425-415-3098 email: <mailto:galen.torneby@nepco.com< < <mailto:galen.torneby@nepco.com<< -----Original Message----- From: Greatrix, Garry [ <mailto:Garry_Greatrix@fwc.com<] < <mailto:[mailto:Garry_Greatrix@fwc.com]<< Sent: Wednesday, August 29, 2001 6:47 AM To: Galen.Torneby@nepco.com < <mailto:Galen.Torneby@nepco.com<< ; Richard.Skibinski@nepco.com < <mailto:Richard.Skibinski@nepco.com<< ; Martin.Tollefson@nepco.com < <mailto:Martin.Tollefson@nepco.com<< ; dlabine@nepcan.com < <mailto:dlabine@nepcan.com<< ; sketler@nepcan.com < <mailto:sketler@nepcan.com<< ; ltoth@nepcan < <mailto:ltoth@nepcan<< .com; Don.Campbell@nepco.com < <mailto:Don.Campbell@nepco.com<< ; Braid, Alan; Kirk, Bob; Baiton, Darren; Hildebrandt, Bob; McKenna, Richard; Jonker, Chris; Ratelle, Leo; Rajhans, Shekhar; Dueck, Rob; Shaffer, Edward; McNinch, Bob; Jansen, Bruna; McDonald, Robin; Copsey, Dick Subject: NEPCO Lake Worth - Minutes of Meeting - August 22, 2001 Please find attached Minutes of our Project Design Review Meeting at NEPCAN offices Wednesday August 22, 2001. Discussion and Action items are as noted for followup by NEPCO/NEPCAN/FW accordingly. Best regards, Garry Greatrix FW Project Manager ********************************************************************** This e-mail is the property of Enron Corp. and/or its relevant affiliate and may contain confidential and privileged material for the sole use of the intended recipient (s). Any review, use, distribution or disclosure by others is strictly prohibited. If you are not the intended recipient (or authorized to receive for the recipient), please contact the sender or reply to Enron Corp. at enron.messaging.administration@enron.com and delete all copies of the message. This e-mail (and any attachments hereto) are not intended to be an offer (or an acceptance) and do not create or evidence a binding and enforceable contract between Enron Corp. 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