Div: CV-D Filing 103580447 E-Filed 02/ 19/2020 04:19: 17 PM IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT IN AND FOR DUVAL COUNTY, FLORIDA CIVIL DIVISION NEXTERA ENERGY, INC., a Florida corporation; DUKE ENERGY CORPORATION, a Delaware corporation; and AMERICAN WATER WORKS COMPANY, INC, a Delaware corporation; Plaintiffs, Case No.: V. Division: JEA, a body politic and corporate of the State of Florida; Defendant. VERIFIED COMPLAINT FOR DECLARATORY RELIEF AND INJUNCTIVE RELIEF Plaintiffs, NextEra Energy, Inc., a Florida corporation (?NextEra?); Duke Energy Corporation, a Delaware corporation (?Duke Energy?); and American Water Works Company, Inc., a Delaware corporation (?American Water?) (collectively, ?Plaintiffs?); by and through their respective undersigned counsel, hereby sue Defendant, JEA, a body politic and corporate of the State of Florida and allege: INTRODUCTION 1. This is an action to maintain the confidentiality, and prevent the improper and impermissible release, of only certain limited information that is exempt from public disclosure. 2. As more fully described below, Plaintiffs each submitted highly sensitive confidential information, unique to each bidder Plaintiff and only disclosed to JEA, as individual participants in response to invitation to bid on the purchase of electric, water, and wastewater utilities. ACCEPTED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 02/20/2020 08:57:20 AM 3. Each of Plaintiffs provided the legal bases for their redaction of con?dential information from their submissions to JEA. Nevertheless, JEA has now indicated that it will release to the public specific portions of Plaintiffs? designated and redacted confidential information on or about February 21, 2020. But these designated portions are clearly exempt from disclosure under Florida?s public records laws, including but not limited to Chapters 119, 688, 812, and 815 of the Florida Statutes. 4. This lawsuit arises from the recent contemplated purchase and sale of JEA, the local electric, water, and wastewater utility. In connection with this potential transaction, which JEA initiated by issuing Invitation to Negotiate 127-19 for Strategic Alternatives (the Plaintiffs each submitted voluminous and detailed written proposals. Plaintiffs submitted this information as part of a con?dential bid process among competitors, including Plaintiffs. 5. However, Plaintiffs do not seek to withhold all information that they submitted to JEA. To the contrary, Plaintiffs have consented to the release of the substantial majority of this information to the public. In fact, the vast majority of the information and materials that Plaintiffs submitted has already been made available for public examination. 6. Plaintiffs now seek to maintain the confidentiality and protect from release only certain information that is clearly exempt from disclosure but which JEA has advised it plans to publicly disclose the initial estimates of the proposed gross proceeds and net proceeds that would have been realized from a completed transaction (as to each of Plaintiffs as applicable and collectively as to all Plaintiffs, the ?Initial Gross Proceeds? and the ?Initial Net Proceeds,? respectively). This information constitutes proprietary confidential business information and trade secrets, which, if disclosed, would in?ict substantial competitive injury upon Plaintiffs and cause them irreparable harm. 7. This lawsuit is without waiver of Plaintiffs? claims that other information that was redacted from their respective submissions to JEA is exempt from disclosure. Indeed, Plaintiffs have redacted such other information for reasons including but not limited to proprietary confidential business information; (ii) trade secrets; security concerns; and (iv) proprietary confidential financial information. Because JEA has apparently recognized that the other redacted information is properly excluded from disclosure and will not release that other redacted information, Plaintiffs? respective redactions of this other information are not at issue here. Rather, the instant lawsuit is intended to address the common issue among Plaintiffs of the narrow and extremely limited portions of their submissions that JEA has specifically threatened to release the Initial Gross Proceeds and the Initial Net Proceeds. Plaintiffs reserve the right to protect additional redactions in any further action as becomes necessary or appropriate. PARTIES, JURISDICTION, AND VENUE 8. NextEra is a Florida corporation with its principal place of business located in or about Juno Beach, Florida. NextEra is one of the largest electric utility power and energy infrastructure companies in North America and is the world?s largest producer of wind and solar energy. 9. Duke Energy is a Delaware corporation with its principal place of business located in or about Charlotte, North Carolina. Duke Energy is one of the largest publicly-traded utility companies in the world and one of the largest energy holding companies in the US. 10. American Water is a Delaware corporation with its principal place of business located in or about Camden, New Jersey. American Water is the nation?s largest investor-owned water and wastewater services utility, including providing services elsewhere in Florida. 11. Plaintiffs operate in related and highly competitive industries. Plaintiffs are often marketplace competitors with both each other and with other third parties, including competing -3- for growth opportunities through the acquisition of other utility providers and assets. Each of Plaintiffs has its own specific strategy for bidding, including but not limited to how each calculates and provides initial bid numbers as compared to ?nal bid numbers and how each negotiates proposed acquisitions. 12. JEA is a body politic and corporate of the State of Florida with its principal place of business located in or about Jacksonville, Florida. JEA provides electric, water, and wastewater services to customers in its service territory in Northeast Florida, primarily Jacksonville. 13. Jurisdiction over this lawsuit is proper in this Court because Plaintiffs seek to have this Court declare certain rights, status, and other equitable or legal relations whether or not further relief is or could be claimed, and the relief sought exceeds the jurisdictional threshold of this Court. 14. Venue is proper in Duval County, Florida because JEA has, or usually keeps, an office for transaction of its customary business in Duval County and because the cause of action accrued in Duval County. BACKGROUND FACTS A. JEA Issues (m Invitation to Negotiate 15. JEA is a utility that provides electric, water, and wastewater services to customers in its service territory in Northeast Florida, primarily in the City of Jacksonville. 16. On or about August 2, 2019, JEA issued the ITN. A true and correct copy of the ITN is attached as Exhibit A and incorporated by this reference. 17. The ITN invited ?interested parties to submit Replies detailing strategic alternatives that are aligned with goal of maximizing customer, community, environmental, and financial value over the long term.? -4- 18. Stated differently, the purpose of the ITN was essentially to solicit proposals for the purchase and sale of assets. 19. In connection with the ITN, approximately sixteen (16) respondents, including each of Plaintiffs, submitted Replies to the ITN (collectively, the ?Replies?). 20. Generally, the respective Replies provided background information regarding each of the respondents, including certain competitive information, which was provided in an effort to submit an attractive proposal that would enable the respondents to reach the next round of bidding. The Replies are by their very nature part of the competitive bidding process and were maintained as confidential during the pendency of the bidding process. B. Plaintiffs Separately and Independently Submit Proprietary Confidential Business Information, Including Initial Gross Proceeds and Initial Net Proceeds 21. Thereafter, on or about October 14, 2019, JEA issued a Notice of Intent to Negotiate (the ?Notice of Intent to Negotiate?) pursuant to the ITN. A true and correct copy of the Notice of Intent to Negotiate is attached as Exhibit and incorporated by this reference. 22. In the Notice of Intent to Negotiate, JEA announced its intention to negotiate with nine (9) of the respondents, including each of Plaintiffs. 23. In response to the Notice of Intent to Negotiate, each of Plaintiffs submitted Revised Replies (collectively, the ?Revised Replies?), as did other respondents. 24. In contrast to the Replies, the Revised Replies were far more substantive and complex. The Revised Replies contained a variety of information regarding the particular details of each of Plaintiffs? proposals, including information that constitutes proprietary confidential business information and trade secrets, as well as information including but not limited to proprietary confidential financial information. Again, the Revised Replies were treated as confidential. 25. The proprietary con?dential business information contained in the Revised Replies included, but was not limited to, the initial estimates of the Initial Gross Proceeds and Initial Net Proceeds that JEA would have received from each of Plaintiffs if the transaction had been completed. Notably, these Initial Gross Proceeds and Initial Net Proceeds were not final bids, but instead represented calculations subject to further negotiations in order to ultimately reach best and final offers in the bid process. 26. Each of Plaintiffs has its own unique formula, compilation system, program, method, technique, or process (as to each Plaintiff, a ?Calculation Process?) that each Plaintiff uses in connection with its respective unique bidding strategies to ultimately calculate a best and final offer. 27. The Initial Gross Proceeds and Initial Net Proceeds are components of the Calculation Process used, as applicable, by each of Plaintiffs in the process of ultimately calculating best and final offers in transactions such as the one contemplated by the ITN. 28. The Initial Gross Proceeds and Initial Net Proceeds are integral parts of the Calculation Process. 29. Each Plaintiff derives independent economic value from the fact that its respective Calculation Process is not generally known to and is not readily ascertainable by proper means by others who would likely obtain economic value from its disclosure and/or use. 30. Additionally, each Plaintiffs respective Calculation Process is secret, of valueeach respective Plaintiff, and is of advantage to each respective Plaintiff, or provides an opportunity to obtain an advantage, over those who do not know or use it. 31. Further, the Initial Gross Proceeds and Initial Net Proceeds comprise and are based on, re?ect, and incorporate data, programs, or supporting documentation that constitutes proprietary con?dential business information, including but not limited to trade secrets, the disclosure of which could provide signi?cant economic and competitive advantages to competitors in Plaintiffs? industries and thereby put Plaintiffs at a competitive disadvantage. 32. The Initial Gross Proceeds and Initial Net Proceeds consist of secret, valuable information used in the operation of each of Plaintiffs? businesses, and constitute sensitive information that is unique to the manner in which each of Plaintiffs do business and also provides each of Plaintiffs with a competitive advantage over its competitors. Plaintiffs and many of the other bidders that participated in the ITN regularly compete with each other and with other third party players in the utility marketplace, including competing for growth opportunities through the acquisition of other utility providers and assets, and disclosure of the Initial Gross Proceeds and Initial Net Proceeds would impair Plaintiffs? standing in future negotiations. 33. Each of Plaintiffs has made reasonable efforts to maintain the secrecy of its Calculation Process, not only with regard to the ITN but in other situations involving similar transactions. 34. Each of Plaintiffs has also made reasonable efforts to maintain the secrecy of its Initial Gross Proceeds and Initial Net Proceeds, and Plaintiffs have only disclosed these figures to JEA or to others selected by each respective Plaintiff to have access thereto for limited purposes. Further, each of Plaintiffs has taken the position with JEA that the Initial Gross Proceeds and Initial Net Proceeds are confidential and should not be disclosed. 35. Disclosure of the Initial Gross Proceeds and Initial Net Proceeds would, together with information that is already available to the public, permit third parties to discover or determine aspects of the confidential Calculation Process. 36. Disclosure of the Initial Gross Proceeds and the Initial Net Proceeds would cause irreparable harm to Plaintiffs? business operations because Plaintiffs? ability to compete for any future transactions would be negatively impacted. 37. Upon information and belief, at all times material JEA has held and been in possession, custody, or control of the Initial Gross Proceeds and Initial Net Proceeds, and the Initial Gross Proceeds and Initial Net Proceeds reside or exist internal or external to a computer, computer system, computer network, or electronic device of JEA. C. JEA Cancels the ITN, Independently Determines that Initial Gross Proceeds and Initial Net Proceeds Are Not Trade Secrets, and Threatens the Release of this Con?dential Information 38. On or about December 24, 2019, JEA issued a Notice of Cancellation of ITN #127-19 and Rejection of All Replies (the ?Notice of Cancellation and Rejection?), which gave notice of decision to cancel the ITN and reject all Replies and Revised Replies received pursuant to the ITN. A true and correct copy of the Notice of Cancellation and Rejection is attached as Exhibit and incorporated by this reference. 39. At all times material, Plaintiffs acted in good faith and in compliance with the requirements of the ITN. decision to cancel the ITN did not occur as a result of any alleged actions or inactions of Plaintiffs. 40. In connection with its decision to cancel the ITN, and in response to a subsequent public records request, JEA announced its determination to release to the public information contained within the Revised Replies, specifically the Initial Gross Proceeds and the Initial Net Proceeds proposed by each respective Plaintiff, as applicable. 41. Section 2.8 of the ITN provided a process under which the respondents could challenge the release of any portion of the documents, data, or records submitted in response to the ITN as exempt from disclosure under Florida?s public records laws. -8- 42. Each of Plaintiffs submitted con?dential versions of their Revised Replies that identi?ed, among other things, the Initial Gross Proceeds and the Initial Net Proceeds as con?dential and exempt from disclosure; (ii) cited the speci?c statutory or other legal authority for the asserted exemptions; and provided redacted copies of the Revised Replies (the ?Redacted Copies?). 43. The Redacted Copies redacted certain limited information that Plaintiffs each deemed to be proprietary con?dential business information, trade secrets, or information otherwise exempt from Florida?s public records laws, including but not limited to the Initial Gross Proceeds and the Initial Net Proceeds. 44. However, Section 2.8 of the ITN does not contain any language under which JEA indicated that it might, could, or would independently determine that the Initial Gross Proceeds and the Initial Net Proceeds were not trade secrets or otherwise exempt from disclosure. 45. Despite the absence of any such language in its own ITN, and despite the absence of any statutory authority, JEA informed Plaintiffs that JEA had determined that the Initial Gross Proceeds and the Initial Net Proceeds did not qualify as trade secrets, proprietary con?dential business information, or otherwise exempt information, and that, unless an affected respondent ?led and served upon JEA a complaint for declaratory, injunctive, or other appropriate relief before February 20, 2020, JEA intends to publicly release the Initial Gross Proceeds and the Initial Net Proceeds amounts on February 21, 2020. A true and correct copy of this communication is attached as Exhibit and incorporated by this reference. 46. This lawsuit necessarily follows, as the Initial Gross Proceeds and the Initial Net Proceeds do indeed constitute trade secrets, proprietary con?dential business information, or otherwise exempt information. D. Initial Gross Proceeds and Initial Net Proceeds ore Exempt from Disclosure as Public Records Under Applicable Law 47. JEA is an ?agency? as de?ned in Section Florida Statutes, which states: (2) ?Agency? means any state, county, district, authority, or municipal of?cer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Of?ce of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency. 48. JEA is also a ?utility? as de?ned in Section Florida Statutes, which states: (15) ?Utility? means a person or entity that provides electricity, natural gas, telecommunications, water, chilled water, reuse water, or wastewater. 49. Section Florida Statutes provides: Proprietary con?dential business information means information, regardless of form or characteristics, which is held by an electric utility that is subject to this chapter, is intended to be and is treated by the entity that provided the information to the electric utility as private in that the disclosure of the information would cause harm to the entity providing the information or its business operations, and has not been disclosed unless disclosed pursuant to a statutory provision, an order of a court or administrative body, or a private agreement that provides that the information will not be released to the public. Proprietary con?dential business information includes: 1. Trade secrets, as de?ned in s. 688.002 [under the Uniform Trade Secrets Act]. 2. Internal auditing controls and reports of internal auditors. 3. Security measures, systems, or procedures. 4. Information concerning bids or other contractual data, the disclosure of which would impair the efforts of the electric utility to contract for goods or services on favorable terms. 5. Information relating to competitive interests, the disclosure of which would impair the competitive business of the provider of the information. 50. Section Florida Statutes de?nes a trade secret as follows: -10- (4) ?Trade secret? means information, including a formula, pattern, compilation, program, device, method, technique, or process that: Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. 51. Similarly, Section Florida Statutes, as referenced in Section 815.045 setting out certain exemptions from public disclosure, defines a trade secret as follows: I ?Trade secret? means the whole or any portion or phase of any formula, pattern, device, combination of devices, or compilation of information which is for use, or is used, in the operation of a business and which provides the business an advantage, or an opportunity to obtain an advantage, over those who do not know or use it. The term includes any scientific, technical, or commercial information, including financial information, and includes any design, process, procedure, list of suppliers, list of customers, business code, or improvement thereof. Irrespective of novelty, invention, patentability, the state of the prior art, and the level of skill in the business, art, or field to which the subject matter pertains, a trade secret is considered to be: 1. Secret; 2. Of valuethe business; and 4. Of advantage to the business, or providing an opportunity to obtain an advantage, over those who do not know or use it when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes. 52. Section 815.04, Florida Statutes, provides in relevant part when discussing certain exemptions from public disclosure based on con?dentiality and trade secrets: (3) Data, programs, or supporting documentation that is a trade secret as defined in s. 812.081, that is held by an agency as defined in chapter 119, and that resides or exists internal or external to a computer, computer system, computer network, or electronic device is con?dential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This subsection is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall -11- stand repealed on October 2, 2021, unless reviewed and saved from repeal through reenactment by the Legislature. (4) A person who willfully, knowingly, and without authorization discloses or takes data, programs, or supporting documentation that is a trade secret as de?ned in s. 812.081 or is con?dential as provided by law residing or existing internal or external to a computer, computer system, computer network, or electronic device commits an offense against intellectual property. Except as otherwise provided in this subsection, an offense against intellectual property is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. 53. Moreover, Section 815.045, Florida Statutes (which was formerly numbered as Section 119.165, Florida Statutes) addresses certain exemptions to public disclosure and states: The Legislature ?nds that it is a public necessity that trade secret information as de?ned in s. 812.081, and as provided for in s. be expressly made con?dential and exempt from the public records law because it is a felony to disclose such records. Due to the legal uncertainty as to whether a public employee would be protected from a felony conviction if otherwise complying with chapter 119, and with s. 24(a), Art. I of the State Constitution, it is imperative that a public records exemption be created. The Legislature in making disclosure of trade secrets a crime has clearly established the importance attached to trade secret protection. Disclosing trade secrets in an agency?s possession would negatively impact the business interests of those providing an agency such trade secrets by damaging them in the marketplace, and those entities and individuals disclosing such trade secrets would hesitate to cooperate with that agency, which would impair the effective and ef?cient administration of governmental functions. Thus, the public and private harm in disclosing trade secrets signi?cantly outweighs any public bene?t derived from disclosure, and the public?s ability to scrutinize and monitor agency action is not diminished by nondisclosure of trade secrets. 54. The Initial Gross Proceeds and the Initial Net Proceeds fall squarely within Florida?s statutory framework that exempts them from disclosure by JEA under applicable law. The citizens of the State of Florida, through their elected representatives, have decided that maintaining the con?dentiality of this type of information is more important than releasing it under public records laws. JEA should not be permitted to substitute its judgment for the collective judgment of the legislature and the people, many of whom include customers. -12- 55. Any and all conditions precedent to the institution and maintenance of this lawsuit have been performed, satis?ed, excused, or waived. 56. Each of Plaintiffs has retained the respective undersigned counsel in this lawsuit and such counsel are entitled to a reasonable fee for their services. COUNT I DECLARATORY RELIEF 57. Plaintiffs reallege paragraphs 1 through 56 as though fully set forth herein. 58. This is an action for declaratory relief pursuant to Chapters 86, 119, 688, 812, and 815, Florida Statutes. 59. There is a bona fide, actual, present, and practical need for a declaration as to whether the Initial Gross Proceeds and the Initial Net Proceeds constitute proprietary confidential business information, trade secrets, or are otherwise exempt from disclosure as public records under applicable law, as Plaintiffs and JEA disagree regarding these issues and JEA, as custodian of this information, has indicated that it intends to disseminate this information to the public. 60. The declaration deals with a present, ascertained, or ascertainable state of facts or present controversy as to a state of facts. 61. An immunity, power, privilege, or right of Plaintiffs is dependent upon the facts or the law applicable to the facts. 62. Plaintiffs have or reasonably may have an actual, present, adverse, and antagonistic interest in the subject matter, either in fact or law, in light of stated intent to release to the public the Initial Gross Proceeds and the Initial Net Proceeds absent the filing of this lawsuit. At heart, EA has left Plaintiffs with no other choice but to sue EA. 63. The antagonistic and adverse interests are all before this Court, and the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity. -13- WHEREFORE, Plaintiffs request that this Court enter a declaratory judgment stating that the Initial Gross Proceeds and the Initial Net Proceeds are proprietary confidential business information, trade secrets, or are otherwise exempt from disclosure as public records under applicable law, further stating that no one other than JEA and each Plaintiff to whom the respective information belongs may view or otherwise obtain the Initial Gross Proceeds and Initial Net Proceeds regardless of the format in which these figures are re?ected or maintained, award Plaintiffs their respective costs and attorneys? fees, and grant such other and further relief as this Court deems proper. COUNT II INJUNCTIVE RELIEF 64. Plaintiffs reallege paragraphs 1 through 5 6 as though fully set forth herein. 65. This is an action for temporary and permanent injunctive relief enjoining the release of the Initial Gross Proceeds and the Initial Net Proceeds because they are proprietary con?dential business information, trade secrets, or are otherwise exempt from disclosure as public records under applicable law. 66. Plaintiffs have a substantial likelihood of success on the merits based on the statutory definitions and other legal authorities defining the type of proprietary confidential business information and trade secrets that are exempt from public disclosure as well as the efforts that Plaintiffs undertook to preserve the confidentiality of the Initial Gross Proceeds and the Initial Net Proceeds. 67. Plaintiffs lack an adequate remedy at law that would prevent the immediate disclosure of the Initial Gross Proceeds and the Initial Net Proceeds and thus avoid irreparable harm. Indeed, the only remedy available to Plaintiffs is the entry of an injunction preventing disclosure of the Initial Gross Proceeds and the Initial Net Proceeds. -14- 68. There is a likelihood of irreparable harm to Plaintiffs absent the entry of an injunction because of harm that would result to Plaintiffs? respective competitive business interests, and because the disclosure of the Initial Gross Proceeds and the Initial Net Proceeds would destroy the value of the compiled information that gives each of Plaintiffs a competitive advantage over others in the marketplace. 69. Injunctive relief will serve the public interest, in that the Florida legislature has found that the public and private harm in disclosing trade secrets significantly outweighs any public benefit derived from disclosure and that the public?s ability to scrutinize and monitor agency action is not diminished by nondisclosure of trade secrets. WHEREFORE, Plaintiffs request that this Court enter a temporary injunction and a permanent injunction enjoining the release of the Initial Gross Proceeds and the Initial Net Proceeds, regardless of the format in which these figures are re?ected or maintained, because they constitute proprietary confidential business information, trade secrets, or are otherwise exempt from disclosure as public records under applicable law, award Plaintiffs their respective costs and attorneys? fees, and grant such other and further relief as this Court deems proper. [Veri?cations and attorney signatures follow] -15- VERIFICATION 0F BEHALF OF NEXTERA ENERGY, INC. Under penalties of perjury, I declare that on behalf of NextEra Energy, Inc., I have read the foregoing Veri?ed Complaint for Declaratory Relief and Injunctive Relief, and the facts stated in it as to NextEra Energy, Inc. are true to the best of my knowledge and belief. NEXTERA ENERGY, INC. By: Print: 57?.le Its: -15- VERIFICATION ON BEHALF OF DUKE ENERGY CORPORATION Under penalties of perjury, I declare that on behalf of Duke Energy Corporation, 1 have read the foregoing Veri?ed Complaint for Declaratory Relief and Injunctive Relief, and the facts stated in it as to Duke Energy Corporation are true to the best of my knowledge and belief. DUKE ENERGY CORPORATION By: Print: A- .. 31>: i-zu- Its: mat-41f alpha-if. .?cwbeMM?i" VERIFICATION ON BEHALF OF AMERICAN WATER WORKS COMPANY, INC. Under penalties of perjury, I declare that on behalf of American Water Works Company, Inc., I have read the foregoing Verified Complaint for Declaratory Relief and Injunctive Relief, and the facts stated in it as to American Water Works Company, Inc. are true to the best of my knowledge and belief. AMERICANWATER WORKS COMPANY, INC. Papf? Maia-er .gsg'ra: Its: ,?E?aciutive (369?ng Counsel and Secretary -18- SHUTTS BOWEN LLP By: Michael P. Silver MICHAEL P. SILVER Florida Bar N0.: 868701 Primary Email: msilver@shutts.com Secondary Email: doneal@shutts.com S. ELIZABETH KING Florida Bar N0.: 122031 Primary Email: eking@shutts.com Secondary Email: doneal@shutts.com 4301 W. Boy Scout Boulevard, Suite 300 Tampa, Florida 33607 Telephone: (813) 229-8900 Facsimile: (813) 229-8901 - and- JEFFREY S. YORK Florida Bar N0.: 987069 Primary Email: jyork@shutts.com Secondary Email: iheard@shutts.com 1022 Park Street, Suite 308 Jacksonville, Florida 32204 Telephone: (904) 899-9926 Facsimile: (904) 899-9965 Attorneys for Duke Energy Corporation Respectfully submitted, ROGERS TOWERS, P.A. By: Fred D. Franklin FRED D. FRANKLIN Florida Bar N0.: 0300578 EMILY G. PIERCE Florida Bar N0.: 881139 E. CARSON LANGE Florida Bar No: 091512 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 (904) 398-3911 (Telephone) (904) 396-0663 (Facsimile) ffranklin@rtlaw.com epierce@rtlaw.com clange@rtlaw-com Attorneys for NextEra Energy, Inc. MCGUIREWOODS LLP By: Emilv Y. Rottmann R. Eric Bilik (FL Bar No. 987840) Primary Email: ebilik@mcguirewoods.com Secondary Email: i aiken@mcguirewoods.com Emily Y. Rottmann (FL Bar No. 93154) Primary Email: erottmann@mcguirewoods.com Secondary Email: clambert@mcguirewoods.com C. H. Houston (FL Bar N0.: 0100268) Primary E-mail: hhouston@mcguirewoods.com Secondary E?Mail: ?service@mcguirewoods.com 50 N. Laura Street, Suite 3300 Jacksonville, Florida 32202 Tel: (904) 798-3200 Fax: (904) 798-3207 Attorneys for American Water Works Company, Inc. -19- EXHIBIT A 13mm 9-3 OLNOIWLIANI ?4i:va .N?w 5w}; \Jfmg1?21pggr?q ?37: is" r- 14 ?j I .. .34; "Hi Table ofComentS Busrness pg. 5 The JEA Oppor?runily pg. 9 Process Goals pg. 18 Solioilarion Process: Evalualion, Negoiialion, and Award Melhodology pg. 20 Frequenlly Asked Queslions pg. 42 Business Overvrew pg. 53 Jacksonville lvlarl$400 million of value disTribuTed To cusTomers ($350+ paid To each JEA 2_ Significani raTe increases required over accounT: 351,400+ for cusfomers wilh elecTric, waTer, sewer and irrigaTion nexT several years accounTs) 2. AT leasT Three years of conTracTually guaranieed base raTe sTabiliTy for cusTomers Environmental l. Viable renewable energy requiremenT 0T 1. CommiTmenT To develop and provide The CiTy of Jacksonville and The 0% funding Duval CouSnTy Public School sysTem wiThl 100% renewable elecTriciTy by The 2. Viable sources of alTernaTive waTer year 20303 capaciTy af 0% funding 2. Commifmem? To develop and provide 40 million aallons per dav- of alTernaTive waTer capaciTy for NorTheasT Florida by The year 2035 2 Community 1. STaTus qua reTiremenT obligaTions i. ProfecTion of cerTain employee reTiremenT benefiTs impact 2. No employmenf guaranTees and 2. Mainfenance of subsTahTially comparable employee compensafion and TerminaTion of ~600 employees benefifs for Three years 3. No reTenTion paymenTs To employees 3. ReTenTion paynglenTs To all full~Time employees of 100% currenT base 4. JEA leaves downTown, moving new headquarTers To exisiing office space To 4. CommiTmenT To new headquarTers and employees in downtown house smaller workforce and minimize cosT Jacksonville, conTribuTing To The economic developmenl of The . communiTy The overall purpose of this undertaking is to give JEA the strategic ?exibility to adapt to a once-in-a-generation, industry-wide transformation and help it achieve its vision to improve lives in the Northeast Florida community. l. ill ol if c. orilnbullon To The (lev oi Jac ave rilie ne xi mvc- ars 2, . Holly and allernallve waler lo be provrclecl al new or xasiihg ianlfs al a price equal lo or less lhan applic al'Jl Tani! role JEA I 1.0 NegOtIOte (ITN) 27?] 9 1'5 are subgcc To a VG bargaining as applic lo lhal, If approved, would he process goal is comm iequnre me ill downlown lac n1 To The currenl downlown he. aclquarlers proiec m. I 1 I lull..MIIHI u. .. . .HLT . .I . r3253 znmmiamu .. -- .. . gag 96:0sz 9 8:22 f, T). i ti. [Cmgx(CM ark. Lift. CC wamm mm?gxw mg. m: .4 K2. (ILL $.ka (A Egg Mm mg hmgh?wg?wm?? Solicitation Process; Evaluation, Negotiation, and Award Methodology SECTION 1.0 Background Information and Goals 1.3 Additional Information Parties interested in making an otter related to JEA's review of potential atternatives are required to participate in this ITN process, which will be integral to the report and recommendations that will be provided to the Board at Directors and the Jacksonville City Council (?City Council?). Pursuant to the JEA Purchasing Code and Florida law, no award resulting from this solicitation process may be made to any party who does not submit a timely Reply to this While Vendors who do not submit a Reply will not be eligible to be awarded the Contract resulting from this they may participate as a team member or partner under a resulting Contract with a Respondent who has submitted a Reply. 1.4 Advisors JEA has engaged JP. Morgan Securities LLC and Morgan Stantey Co. LLC (collectively, the ?Advisors?) to assist in conducting a review of potential strategic alternatives that may be available to JEA. All communications regarding this process should be directed to the Designated Procurement Representatives identified in Section 2H, who will distribute communications to or solicit necessary information from JEA personnel, the Advisors, or subject matter experts as deemed appropriate. Invitation to Negotiate Solicitation Process; Evaluation, Negotiation, and Award Methodology SECTION 2.0 -- ITN Process General Overview of this I TN Process This ITN is a method of competitivety soliciting Replies from one or more interested parties with whom JEA may negotiate under section 3-1 to of the JEA Procurement Code. Through this ITN process. JEA will seek to answer the questions being explored, as identified in Section l2, and achieve the goals identified by this ITN. This process involves three phases: solicitation, evaluation, and negotiation. 2. I. 1 Solicitation Phase JEA posts on to its procurement page to initiate the process. Replies must be submitted by the deadline listed in the Timeline of Events, which can be found in Section 2.2 (the ?Timeline of Events") and conform with all material aspects of this ITN (?Responsive Replies?). This encompasses the solicitation phase (the ?Solicitation Phase?). JEA will hold a public meeting to formally receive Replies at the date, time, and location noted in the Timeline of Events. Questions Potential Respondents can submit formal questions in writing via email to the Designated Procurement Representatives identified in Section 2.ll by the deadline listed in the Timeline of Events. Questions should be submitted in writing to the Designated Procurement Representatives. JEA will answer questions in a formal written communication to be posted at and update the solicitation as needed. As all questions should be submitted in writing, JEA is under no obligation to acknowledge or respond to oral inquiries. and potential Respondents are not entitled to rely upon any clarification or change to this ITN, or answer to any vendor question, except as may be provided in writing by JEA in response to the formal question and answer process or in an addendum to this ITN. All contact by Vendors must be directed to the Designated Procurement Representatives identified in Section 2.ll. The Designated Procurement Representatives will have access to subject matter experts, including, but not limited to, the Advisors. and can assist Vendors with the formal question and answer process discussed in this section. 2. I .2 Evaluation Phase All Responsive Replies will be evaluated against the evaluation criteria set forth in Section 3.2.3 (the ?Evaluation Criteria?) to establish a competitive range of Replies reasonably susceptible of award. JEA may then select the Respondents within the competitive range with which to commence negotiations. 2.1.3 Negotiation Phase JEA will meet with the selected Respondents to negotiate terms of a potential contract. After negotiations conclude, the Negotiation Team will meet in a public meeting to discuss the recommended award. JEA will then post a Notice of intent to Award on the procurement page for this ITN online at strate icalt tiv s. lea. Invitation to Negotiate (lTN)#l 27?1 9 Solicitation Process; Evaluation, Negotiation, and Award Methodology SECTION 2.0 Process 2.2 Timeline of Events Table 1 on The righT conTains The Timeline of EvenTs for This soliciTaTion. The RespondenTs should become familiar wiih The Timeline of EvenTs. The daTes and Times are subjecT To change and ii is The RespondenT?s responsibiliiv To check for any changes. All changes To The Timeline of EvenTs will be issued Through an addendum To This ITN posied an The JEA procuremeni page locaied aT The Respondenis are responsible Tor submiTTing all required documenTaTion by The doles and Times speci?ed below. JEA will noT open, review, or consider documenis submiTTed aTTer a deadline unless iT deierrnines in iis sole discreTion Thai is in besT inTeresTs To do so. posied on JEA ProcuremenT Siie Deadline To submiT wriTTen quesiions via 2:00 PM email To The DesignaTed ProcuremenT RepresenTaTlves JEA anTiclpaTed posTing daTe for answers To The RespondenTs' quesTions Deadline To submiT Replies and all 12:00 PM required documenTs To The JEA Procurem'enT Bid Office JEA anTicipaTed formal acknowledgemenl of Replies received (bid opening) aT The JEA Procuremeni Bid Office 2:00 PM Anticipated daTe for EvaluaTion Team meeting and posTing of Nolice of lnTenT To NegoTiaTe AnTicipaTed Dates for NegoTiaTion Phase AnTicipaTed date for NegoTiaTion Team meeTing and posTing of NoTice of lnTenT To Award EvenT Date AugusT 2, 2019 Sepiember 3, 2019 SepTember 16, 2019 SepTember 30, 2019 Sepiember 30, 2019 OcTober 14, 2019 OcTober 15, 2019 To Be DeTermined To Be DeTermined JEAI lnviTaTion To NegoTiaTe 9 a TNNWEZE manommz OW ?039.WWII L/lxSolicitation Process; Evaluation, Negotiation, and Award Methodology SECTION 2.0 Process 2.6 How to Submit a Reply (cont?d) Submit the following: The Respondents are required to submit one (1) original Reply, five (5) duplicate Replies and six (6) electronic copies via USB drives, delivered personally or sent by registered or certi?ed mail, postage prepaid or overnight courier to the following address: JEA Procurement Bid Office 2i West Church Street Customer Center Floor, Room 202 Jacksonville, Florida 32202 Receipt of hard copies is required by (ET) on the submission deadline identified in the Timeline of Events. Clearly mark sealed packages on the outside of the package with the solicitation number, the Respondent?s company name, and specific contents of the package. Clearly mark submitted hardcopies contained within the sealed packages with the Respondent?s company name, email address for JEA to provide acknowledgement of receipt, specific contents of the package, and solicitation number. JEM Invitation to Negotiate Solicitation Process; Evaluation, Negotiation, and Award Methodology SECTIONZO - Process 2. 7 Contents ofReply Reply Submission Organiz ethe contents of each Reply as listed' In Table 2 below: a A I *??lh??fms??au (A Requirements 1 Cover Letter on the Contact information Respon ned nt 5 2. Name and signature of the representative of the responding organization authorized to legally obligate the Respondent Letterhead 3. Legal name of company and headquarters location of the Respondent 4 Location and date of incorporation or organization (as applicable) and type of business 5 Federal Employer Identification Number 2: Executive Summary The Respondents must provide a narrative discussion of their proposal including its structure advantages, impacts to JEA and the City of Jacksonville including consumerI mpacts and key considerations of the Respondent proposal 3: Statement of Interest The Respondents must state clearly theirinterest in the potential purchase recapitalization, and/or operation of the JEA utility systems including and Qualifications how the utility systems may be an attractive and beneficial addition to the Respondent' 3 organization. The Respondents must clearly identify within their Reply the expectation for the future partnership, oWnership, or management structure of: l) the Electric System (generation, transmission, distribution, and associated electric power assets) and 2) the Water and Wastewater Systems (distribution, collection, treatment and associated assets). 4: Organizational The Respondents must prayide a description of their business and organization including: Overview Organizational structure Operations details Financial details Number of current electric and water customers Existence of unions. ii any, of which the Respondent?s current employees are members and a brief history of past collective bargaining agreement negotiations with each union 6. Extent of involvement in economic development activities and any funding provided in communities where current service is provided 7. Other relevant information P'cxico'sr'm' 5: Process Goals The Respondents must provide an overview of their ability to satisfy the following goals: 3. Greater than $3 billion of value to the City of Jacksonville 2. Greater than $400 million of value distributed to customers ($350+ paid to each JEA account; $1,400+ for customers with electric, water, sewer and irrigation accounts) 3. At least three years of contractually guaranteed base rate stability for customers Commitment to develop and provide the City of Jacksonville and the Duval County Public School system 100% renewable electricity by the year 2030 Commitment to develop and provide 40 MGD of alternative water capacity for Northeast Florida by the year 2035 Protection of certain employee retirement benefits] 2 Maintenance of substantially comparable employee compensation and benefits three years Retention payments to all full? time employees of 100% current base compensation Commitment to new headquarters and employees in downtown Jacksonville, contributing to the economic development of the community v' ui~dr Sent: Thursday, January 16, 2020 5:15 PM To: arnoud.krijt@uniti.com; celders@jefferies.com; Sam.Cooley@Macquarie.com; Aaron.Rubin@Macquarie.com; Tom.Osborne@ifminvestors.com; Munro, mark.hickson@nee.com; Chung, Brian; Rubin, Ken; Allison.Donnelly@Emera.com; POLLYAN NA.LORD@emera.com; Heidi.Boyd@Blackstone.com; Karen.Hutt@Emera.com; steven.kruger@veolia.com; andrew.rein@htc.hargray.com; Michael Hoffman; aharrington@olympuspower.com; Switzer, Mike; Newlin, Karl Zito, Vince; bdoueck@gmail.com Cc: McNally, Emilie Rottmann, Emily Wyman Duggan; Davis, Julia; Hodges, Lawsikia; McCarthy, John P. VP 8L Chief Supply Chain Officer; McCollum, Jenny G. Dir Procurement Services; Hutchinson, Jasen C. Corporate Records Compliance Subject: JEA ITN 127?19; Notice of Public Records Request for Redacted Information on Submittals to JEA For Release of Unredacted Documents) Exercise caution. This is an EXTERNAL email. DO NOT open attachments or click links from unknown senders or unexpected email. Several Respondents to JEA ITN No. 129?19 redacted certain information from various submittals to JEA. JEA received the following public records request for all redacted information seeking release of the unredacted documents): All documents provided by respondents to the negotiation team. In cases where JEA has released redacted documents, ?quest the unredacted documents'. This request also any documents provided by respondents to the negotiating team during its meetings. The Requestor is: David Bauerlein, Florida Times-Union metro reporter (904) 359-4581 Email: dbauerlein@iacksonville.com Twitter: @David Bauerlein [twitter.com] Pursuant to Section 2.8 of the ITN, please accept this as notice to Respondents that a public records request has been made for the unredacted documents submitted to JEA. Such unredacted documents include information that was redacted in the various Respondent submittals to JEA. Please note that is the Respondent's responsibility to respond to the requestor to assert that the information in question is exempt from disclosure under applicable law." Further, in the event the requestor subjects JEA to a demand for disclosure under legal process, the Respondent must defend its determination that the redacted information is exempt and must indemnify JEA for costs (including attorneys? fees) related to such action. Also, please be advised that JEA has determined that amounts submitted by Respondents as gross proceeds and net proceeds to the City do NOT qualify as trade secrets, proprietary confidential business information, or otherwise exempt 1 information. Some Respondents designated such information as exempt and redacted such information. As to those redacted submittals, JEA intends to publicly release such amounts on February 21, 2020 unless the affected Respondent files in court, and serves upon JEA (with a copy to me), a complaint for declaratory, injunctive, or other appropriate relief before February 20, 2020. If such a complaint is timely filed and served (with a copy to me) by a Respondent, JEA will not release that Respondent?s gross proceeds amount or net proceeds to the City amount pending a final decision by the court. PLEASE GOVERN YOURSELVES ACCORDINGLY. Thank you for your prompt attention to this matter. lfyou have any questions, please feel free to contact me. R. Kyle Gavin Assistant General Counsel Office of General Counsel City ofJacksonville 117 W. Duval Street, Suite 480 Jacksonville, FL 32202 Telephone: (904) 255-5047 Email: kgavin@coi.net Please note that under Florida's very broad public records law, email communications to and from city officials are subject to public disclosure. Disclaimer regarding Uniform Electronic Transactions Act (UETA) (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-af?xed original signatures on original documents.