20190222Motion for Extension.pdf

ldaho Public Utilities Commission
Office of the SecretaryRECEIVED
FEB 2 2 2019
Boise, Idaho
James M. Piotrowski
PIOTROWSKI DURAND, PLLC
P.O. Box 2864
1020 W. Main Street, Suite 400
Boise,Idaho 83701
Telephone: (208)33 I -9200
Facsimile: (208)3 3 | -9201
Email: [e-mail]
Attorneys for lntervenor
Citizens Allied for Integrity and Accountability
IN THE MATTER OF THE JOINT
APPLICATION OF SUEZ WATER
IDAHO AND EAGLE WATER
COMPANY FOR THE ACQUISTTION OF
EAGLE WATER COMPANY
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
CASENOS. SUZ-W-I8-02
EAG-W-18-01
CITIZENS ALLIED FOR
INTEGRITY AND
ACCOUNTABILITY'S MOTION
FOR EXTENSION OF TIME TO
RESPOND TO DISCOVERY
COMES NOW lntervenor Citizens Allied for Integrity and Accountability ("CAIA"), by
and through undersigned counsel and hereby moves the Commission pursuant to Rule 56 of the
Commission's Rules of Procedure for an order extending the time within which CAIA must
respond to discovery requests served upon it by Petitioner Suez Water Idaho. lntervenor CAIA
so moves for the reasons and on the bases set forth herein.
I. Facts and Background
Suez Water Idaho and Eagle Water Co. petitioned for approval of a sale of Eagle Water
Co.'s water system to Suez. CAIA moved to intervene in the proceeding, which motion to
intervene was granted by the Commission. Shortly before a January 15,2019 prehearing
meeting in the case, the City of Eagle gave notice to Eagle Water (and others) that it believed
Eagle Water was in default of a contractual provision requiring Eagle Water to grant a right of
first refusal to the City of Eagle before selling the water system. Since then, this case has been in
I - CAIA Motion to Extend Deadlines
a state that can only be described as "on hold" while the implications of this contractual dispute
between City of Eagle and Eagle Water are sorted out.
PUC Staff initially set a date of January 15,2019 for a telephonic prehearing meeting to
discuss the general outlines of a scheduling order in the case, including public information
meetings, pre-hearing deadlines, and possible hearing dates. On or about January 14,2019,the
City of Eagle informed Eagle Water of its contention that Eagle Water was in breach of a
contract requiring that the City have a right of first refusal before any sale of the water system to
any other entity was completed. In light of these developments, at the January 15 prehearing
meeting, it was decided that the prehearing meeting would be reconvened on January 30 so the
parties would have time to consider the implications of this development.
At the January 30,2019 status conference, there was very little new or additional
information. The City of Eagle informed the other parties that it would be taking action to assert
and enforce its contractual positions. PUC Staff, and several of the other parties, were adamant
that issues relating to that contract dispute were outside the jurisdiction of the Commission.
However, they also recognized that resolution of those issues could easily render the present
Application moot. This is for the simple reason that if the City of Eagle has an enforceable right
of f,rrst refusal then sale of the water system to Suez Water would be entirely conditional upon
whether City of Eagle exercised that right.
The disputed contractual provision between City of Eagle and Eagle Water provide that
in the event of a proposed sale to a third entity, City of Eagle is entitled to notice of the proposed
sale, 30 days to determine if it wishes to pursue purchase of the system, and sufficient time to
hold a revenue bond election to attempt to finalize such purchase. (Exhibit l, Intertie Agreement
between City of Eagle and Eagle Water Co., paragraph 6). Eagle Water Co. has taken the
position that it is not required to comply with that right of first refusal. (Exhibit 2, Letter from
Eagle Water Co. to City of Eagle). If City of Eagle attempts to exercise its claimed right of first
refusal, it will almost certainly have to initiate an appropriate civil action for breach of contract.
Resolution of that dispute could occur within a few months or could easily take in excess of 12
months. It is only after that process is concluded, that City of Eagle could undertake the steps to
attempt to buy the water system. If it was successful in doing so, this Application would become
moot since Suez Water would no longer have any legal authority to complete the sale for which
2 - CAIA Motion to Extend Deadlines
it seeks the Commission's approval. Even if the City of Eagle is not successful, it is highly likely
that a sale taking place as much as one to two or even three years in the future would be on
different terms than those presently under consideration and might well involve different
considerations for the Commission as a result of the additional years of development and growth
in the Treasure Valley.
Although resolving the contractual dispute is a matter outside the Commission's
jurisdiction, its resolution could have serious consequences for any decision the Commission
might reach. As a result, staff suggested and the parties largely agreed during their January 30
prehearing meeting that another delay was warranted and that the prehearing meeting would
again be rescheduled, this time for March 4,2019. It was and is expected that by that time more
information would be available about how the City of Eagle and Eagle Water intend to go about
resolving their dispute (i.e., whether they would be litigating or finding some alternative).
Tellingly, the city of Eagle has apparently hired new counsel who has entered an appearance in
this dispute. The firm Holland &Hart, and its partner Newall Squyres are known for their skills
as litigators, suggesting but not confirming that the City intends to pursue its legal remedies.
In the meantime, Suez Water served discovery requests on multiple parties including
CAIA. (Exhibit 3, Suez Water's Discovery Requests to CAIA). The requests were served via
email on February 8,2019. Suez demands that responses be served not later than March 1,2019.
(Id.).' lntervenor CAIA requested that Suez Water agree to an extension of the deadline for
discovery responses, but counsel for Suez would not agree to the requested extension.
Intervenor CAIA is a not-for-profit, grassroots organization focused, as its name implies,
on integrity and accountability in the use of Idahoans' natural resources. It operates on a very
small budget and is funded entirely by donations and membership fees. Because the present
application of Suez Water may become entirely moot, and, if it does not become moot, may
necessarily be delayed for a period that could be counted in years, CAIA seeks leave of the
Commission to delay answering the discovery requests until such time as it appears this matter
will actually be set for a hearing and decision by the Commission. ln the alternative, an
extension of 60 days from the current March 1 deadline would allow for a more reasoned
I The Commission's rules leave some ambiguity as to whether objections to the requests, if any, must be served
sooner than March l. This motion seeks additional time in which to serve both objections and answers to the
discovery requests.
3 - CAIA Motion to Extend Deadlines
decision about the appropriate timing for discovery proceedings. Granting either of these
requests would prevent CAIA from wasting limited resources on discovery requests that may
never be relevant to any contested case that the Commission has to decide. If the discovery
requests do remain relevant, because Suez's application to approve the purchase of Eagle Water
goes forward, then the Commission could easily set discovery timelines as part of the overall
scheduling order that it will ultimately issue.
II. The Commission's Rules Provide the Basis for This Request.
The Commission's own rules call for a practical approach to their application. Rule 13
requires that the rules of procedure, including the rules governing discovery, "be liberally
construed to secure just, speedy and economical determination of all issues presented to the
Commission." IDAPA 3 I .01 .0 I . I 3. The same rule provides that "the Commission may permit
deviation from these rules when it finds compliance with them is impracticable, unnecessary or
not in the public interest." Id. Finally, Rule 56 provides that aparty seeking relief from the
operation of the rules is to do so via a motion such as this one. IDAPA 3l.01.01.56.
Under the present circumstances, a temporary delay of the discovery timeline in this case
will not prevent, or have any impact whatsoever, on accomplishing a "just [or] speedy"
determination of this case. Final resolution of the merits is almost certain to be delayed by the
ongoing contractual dispute between City of Eagle and Eagle Water, and there is nothing the
Commission can do to prevent that.2 An extension of discovery deadlines would not affect the
speedy determination of the merits of this Application. Nor is there any basis to claim it would
affect the 'Just" determination of the application. If the Commission is actually able to proceed
to addressing the merits of this Application (for instance because a Court rules against City of
Eagle, or the City decides not to proceed with a purchase), there will be more than adequate time
to allow for discovery.
Finally, the "economic" determination of the dispute calls for the discovery extension that
CAIA is requesting here. Undergoing the time and expense of discovery proceedings in a case
2 Suez Water may argue that it is entitled to proceed with its purchase of Eagle Water despite the contractual dispute
with City of Eagle. Such an argument would be incorrect for several reasons. First, such an argument ignores the
reality that the interests of rate payers would not be served by allowing a sale that could result in substantial liability
for a regulated utility. Second, it ignores the fact that a Court could enter a preliminary injunction barring the sale
pending the outcome of the contract dispute. Third, it would put the Commission in the position of deciding
whether to approve a sale that a court may ultimately find to be unlawful. None of these outcomes would serve the
goal of accomplishing a "speedy, just and economical determination" of the merits of Suez's Application.
4 - CAIA Motion to Extend Deadlines
that may never be heard on the merits would not be economical. Conserving resources such as
the cost of attorney fees is the only economical choice in this instance. This applies both to the
fees of counsel for CAIA, as well as the fees incurred by Suez Water. Encouraging Suez to
spend money which may ultimately be reimbursed by consumers is not economical.
Rule l3 explicitly encourages the Commission to allow "deviation from these rules when
it finds compliance with them is impracticable, unnecessary or not in the public interest."
IDAPA31.01.01.13. Complyingwithdiscoveryrequestsatthisparticularpointintime,while
the case is all but stalled pending the outcome of potential proceedings before a District Court is
entirely unnecessary. There is simply no reason that Suez needs discovery responses now, rather
than waiting until it is apparent that its Application will actually be decided by the Commission
on the merits. Similarly, it is not in the public interest for either Suez or CAIA to be spending
limited financial resources on undertaking discovery when this case may well become moot. The
public interest is best served by requiring the parties to be efficient, rather than having them
spend time and money in ways that may ultimately be entirely useless.
III. The Commission Should Extend the Deadlines for Responding to Discovery.
lntervenor CAIA requests, and the Commission should order, that it not be required to
respond to discovery requests unless and until a scheduling order resulting in a final hearing on
the merits is entered by the Commission. In the alternative, a 60-day extension of the deadline
for responses to discovery should be granted. Such an extension would allow for some of the
matters outside the Commission's jurisdiction to develop such that the Commission would be
better informed about when and if it is going to be able to proceed to the merits of the present
Application.
DATED this 22od day of February,20l9.
PIOTROWSKI DURAND, PLLC
James M. Piotrowski
Attorney for Petitioner CAIA
5 - CAIA Motion to Extend Deadlines
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 22"d day of February, 2019, a true and correct copy of
the foregoing document was served on the following in the manner indicated:
Diane M. Hanian
Commission Secretary
Idaho Public Utilities Commission
47 2 W est Washington Steet
Boise,Idaho 83702
secretary(rDpuc. idaho. qov
diane. hanian(dpuc. idaho. eov
Commission
Hand Delivered
U.S. Mail
Electronic Mail
Fax
trtrxtr
Brandon Karpen
Sean Costello
Deputy Attorneys General
Idaho Public Utilities Commission
472W. Washington Steet
P.O. Box 83720
Boise, Idaho 83720-007 4
brandon. karpe[Gqpuc. idaho. gov
Hand Delivered
U.S. Mail
Electronic Mail
Fax
trtrxtr
sean. costello(dpuc. idaho. qov
Att orneys fo r C ommi s s ion S t aff
Michael C. Creamer
Preston N. Carter
Givens Pursley LLP
601 W. Bannock St.
P.O.Box2720
Boise,lD 83701-2720
mcc(a) eivenspursley. com
prestoncarter@ qivenspurslev.com
Attornqtsfor Petitioner SUEZ Water ldaho Inc.
Hand Delivered
U.S. Mail
Electronic Mail
Fax
trtrxtr
Marshall Thompson
Suez Water Idaho, Inc.
8248 W. VictoryRd.
Boise,Idaho 83709
mqEhal l.thompson(aJ suez. com
Hand Delivered
U.S. Mail
Electronic Mail
Fax
trnxtr
Petitioner
6 - CAIA Motion to Extend Deadlines
Molly O'Leary
BizCounselor at Law
1775W. State St. #150
Boise, ID 83702
mollv(gibizcounseloratlaw. com
Attornqtfor Petitioner Eagle Water Co.
Hand Delivered
U.S. Mail
Electronic Mail
Fax
trtrxtr
trtrxtr
trtrxtr
trtrxtr
Robert DeShazo, Jr., President
Eagle Water Company, Inc.
188 W. State St.
Eagle,ID 83616
ea ql ew ateco(d, qmail. com
Petitioner
Hand Delivered
U.S. Mail
Electronic Mail
Fax
N.L. Bangle
H2O Eagle Acquisition, LLC
188 W. State St.
Eagle,ID 83616
nbanel e(/, h2 o- solutionsl lc. net
Petitioner
Hand Delivered
U.S. Mail
Electronic Mail
Fax
B. Newal Squyres
Murray D. Feldman
Holland & Hart LLP
800 W. Main St., Ste #1750
P.O.Box2527
Boise, lD 83702-2527
nsquyres (rD hollandhart. com
mfeldman(rDho I I andharr. com
Attorneysfor Intervenor City of Eagle
Hand Delivered
U.S. Mail
Electronic Mail
Fax
Brad M. Purty
2049 N. 176 St.
Boise,lD 83702
bmpurdy(rdhotmai l. com
Attorney for Intervenor CAPAI
Hand Delivered
U.S. Mail
Electronic Mail
Fax
7 - CAIA Motion to Extend Deadlines
Abigail R. Germaine
Boise City Attomey's Office
150 N. Capitol Blvd.
P.O. Box 500
Boise,ID 83701-0500
aserma ine(@cityo lboi se. clrs
Attorney for lntervenor City of Boise
Hand Delivered
U.S. Mail
Electronic Mail
Fax
trtrxtr
Norman M. Sernanko
Parsons Behle & Latimer
800 w. Main St., Ste #1300
Boise, D 83702
nsemanko(@parsonsbehle. com
ec f(@p arsonsb eh le. c om
Attorney for Intervenor EWCG
Hand Delivered
U.S. Mail
Electronic Mail
Fax
trtrxtr
James M. Piotrowski
8 - CAIA Motion to Extend Deadlines
INTERTIE AGREEMENT
This Intertie Agreement ("Agrcemenf'), dated as of July 12, 2008, is between Eagle
Water Company, [nc., an Idaho corporation (*EWC") and the City of Eagle, Idaho, an Idatro
municipal corporation ("City").
Recitals
City recently constnrcted and owns an approximate one million gallon water
storage unk (the "Storage Tenk").
EWC owns and conducts a water utility supply and distribution business ("Water
System") in and around Eagle, Idaho. EWC has water distribution lines in the
vicinity of the Storage Tank and desires to temporarily connect such distribution
lines to the Storage Tank in order to satisS certain regulatory requirements for
fire protection service to its customers.
EWC intends to use the lnrcrtie a! a tempomry measu€ until it completes a new
well and DEQ determines the Intertie is no longer needed to meet regulatory
requirements.
The parties agree as follows:
Agrcement
l. lVeter Storage Connection" City hercby agrees that immediately upon the execution of
this Agreement, City will allow EWC to consfruct, at EWC's sole expense, a connection and two
manually-controlled gate valves with a meter spool for a future meter ("Intertie") between
EWC's existing main distibution lines and the Storage Tank based upon engineering plans
previously submitted by the City to and approved by the Idaho Department of Environmental
Quality ('DEQ"). City shall have the right to approve the location and manner of constmcting
such Intertie and shall do so no later than 24 hours after EWC identifies its prcferred location for
the intertie. EWC shall ensure that all wort is performed in a workmanlike manner and in
compliance with all applicable codes and regulations. City makes no reprcsentations or
warranties, express or implied, concerning the Intertie or any benefits to be derived by EWC
therefrom. The City shall own the lntertie infrastnrcture save and except for the l2-inch Intertie
tee and the attached l2-inch gate valve.
2. Limitations On Use. The parties agree that the sole purpose of the Intertie is to provide
redundant fire flow protection capacity to EWC and is not intended to be a source of water for
EWC's normal operating requirements.
3. Paymcnt. In consideration of the City entering into this Agreement and allowing EWC
to connect to the Storage Tanlq EWC agrees to compcnsate the City as follows:
CITY OF EAGLE - EAGLE WATER COMPAI.IY
INTERTIE AGREEMENT. I
A.
B.
C
Exhibit
1
3.1. Lease of Water Rights. EWC agrees to grant the City the permanent Right of First
Refusal to lease up to ten (10) cubic feet of water per second of certain municipal water
rights currenfly owned by EWC, provided such water rights are not necessary to
maintain the integrity of EWC's Water System, including compliance with all regulatory
requirements and EWC engineering plans.This Right of First Refusal shall be permanent
and shall survive any termination or other modification of this Agreement, save and
except for a termination by the City other than for a non-cured default by EWC per
Section 7, below.
3.2. Cash Payment. In addition, EWC shall pay City a fee for the connection to the
Storage Tank of $10,000.00 per month commencing on the date the interconnection is
completed and approved by the Idaho Departnent of Environmental Quality (DEQ).
4, Duration. This Agreement shall commence upon acceptance by the City of Eagle and
completion of the Intertie that is the subject of this Agreement ("Commencement"), and the
Intertie Lease shall continue month-to-month so long as the Intertie connection is needed by
EWC in its sole discretion. If the Intertie continues past 18 months from the Commencement
date, the Intertie Lease Cash Payment shall increase five percent (5%) and every 18 months
thereafter. The parties may mutually agree, in writing, to extend or modiff this Agreement.
5. Moratorium. At EWC's reasonable request, City agrees to cooperate with EWC to
assist EWC in its efforts to satisff the conditions set forth in the current DEQ Consent Order
establishing a moratorium on new connections in EWC's service territory and to cause the
moratorium to be terminated. This Section 5 shall not require City to expend any funds or take
any actions that it is not laurfirlly permitted to take. EWC shall reimburse the City for any costs
incr.ured by the City related to this Section 5, provided the same have been pre-approved by
EWC in writing.
6. Right of First Refrrsal. If EWC determines to sell or convey all or any part of its Water
System, which shall be deemed to include, but not be limited to, water rights, wells and other
infrastructure, ffid receives a bona fide offer for this Water Systenl before making any
agreement to sell all or any portion of the Water System, EWC shall give notice to City stating
EWC's desire to sell and the amount and terms of such offer in detail. City shall have the
exclusive right for 30 days after receiving such notice to provide Notice of Intent to Purchase the
Water System or portion thereof to which such bona fide offer refers at the amount of said offer;
provided, that if the third party offer is for a consideration other than cash, the City shall have the
right to pay the fair market value of such consideration in cash. Upon delivery of the Notice of
Intent to Purchase, the City shall hold a revenue bond election for the purpose of securing voter
approval of the purchase at the next available election date and/or utilize City funds directly
available in a capital account, enterprise fund, general fund, or other readily available City fund
or account to complete the purchase. For the purpose of this Section 6, 'Next Available Election
Date" shall mean the earliest possible election date based on the time required by law for legal
notice of such an election and for the conduct of any required public hearings. tf the bond is
approved at said election, the City shall proceed in good faith to secure bonds to pay the
purchase price ("Finance") as expeditiously as possible. Closing of the transaction between the
City and EWC that is the subject of this Section 6 shall not extend more than 180 days from the
date of the revenue bond election, or if the election is challenged in a legal proceeding, the
CITY OF EAGLE - EAGLE WATER COMPANY
INTERTIE AGREEMENT.2
Closing shall occur no more than 90 days after final resolution of any such legal challenge. In
the event that a revenue bond election is not required because the City has the necessary funds
directly available in a capital account enterprise fund, general fund, or other readily available
City fund or account to finance the transaction in lieu of holding a revenue bond election, then
the Closing of the tansaction between the City and EWC that is the subject of this Section 6
shall occur no later than 60 days after the City provides EWC with its Notice of Intent to
Purchase. For purposes of this Section 6, this Right of First Refusal applies solely to an "EWC
Change of Control Transaction", which means one or a series of transactions in which (i) all or
substantially all of EWC's Water System is sold to a third party, or (ii) there is a stock sale,
merger, consolidation or similar transaction as a result of which said third parly owns a majority
of the outstanding voting and outstanding capital stock of EWC or any successor owner of EWC.
This Right of First Refusal shall be permanent and shall survive any termination or other
modification of this Agreement save and except for a termination by the City other than for a
non-cured default by EWC per Section 7, below.
7. Termination. EWC or the City shall have the right to terminate the Intertie connection
upon 30 days prior unitten notice to the other party. In the event the City terminates the Intertie
connection for any reason other than a non-cured default by EWC under Section l0 of this
Agreement, then the Rights of First Refusal in Sections 3 and 6 of this Agreement shall likewise
terminate.
8. Authority. Each individual executing this Agreement below on behalf of a party
represents and warrants to the other party that the execution, delivery and performance of this
Agreement has been duly authoiz*d by all necessary corporate or municipal action by such
party, that such individual is duly authorized to execute and deliver this Agreement on behalf of
such party, and that this Agreement is a legal and valid obligation of such party, enforceable
against such party in accordance with its terms.
9. Force Majeure. Except for obligations to make payment, nonperfonnance of either
party shall be excused to the extent that performance is rendered impossible by strike, fire, flood,
governmental acts, orders or restictions, or any other reason where failure to perform is beyond
the control and not caused by the negligence of the non-performing party.
10. Default and Remedies.
10.1. Default. Each of the following events shall constitute an event of default:
l0.l.l. EWC fails to make, on or before the date which it is due, any payment to
be made to the City pursuant to the provisions of this Agreement; or
10.1.2. Either party materially breaches this Agreement.
10.2. Re medies. If any default shall occur, the non-defaulting party shall give the
defaulting party notice of default. Such default must be cured within fifteen (15) days of the
Notice of Default unless such default is curable but cannot be reasonably cured within ten (10)
days after giving the Notice of Default and the defaulting party commences within such ten (10)
day period to cure such default and prosecutes the same to conclusion with reasonable diligence.
CITY OF BAGLE * EAGLE WATER COMPANY
INTERTIE AGREEMENT - 3
The foregoing remedy shall be in addition to and shall not exclude any other remedy available to
the parties under applicable law.
I L Attorneys Fees. [n the event an arbitration, suit or action is brought by any party under
this Agreement to enforce any of its terms, or in any appeal therefrom, it is agreed that the
prevailing party shall be entitled to reasonable attorney fees to be fixed by the arbitrator, or court
of applicable jurisdiction.
12. Notices. All notices or other communications required or permitted hereunder, including
notices to Mortgagees, shall, unless otherwise provided herein, be in writing, shall be personally
delivered, delivered by reputable ovemight courier, or sent by registered or certified mail, retum
receipt requested, and postage prepaid, addressed to the parties at the following addresses:
if to the City: City of Eagle
Ofiice of the City Clerk
660 East Civic Lane
Eagle,ID 83616
With a copy to: Molly O'Leary
Richardson & O'Leary, PLLC
P.O. Box 7218
Boise, tdaho 83707
Notices personally delivered shall be deemed given the day so delivered. Notices given by
overnight courier shall be deemed given on the first business day following the mailing date.
Notises mailed as provided herein shall be deemed given on the third business day following the
mailing date. Notice of change of addrcss shall be given by written notice in a manner detailed
in this Section 12.
13. Governing Law. The parties intend that this contract shall be governed by and construed
in accordance with the laws of the State of ldaho, without regard to choice of law rules.
14. Counterparts. This Agreement may be signed in counterparts, each of which shall
constitute part of the original document.
CITY OF EACLE - EAGLE WATER COMPANY
INTERTIE AGREEMENT- 4
If to Eagle Water: Eagle Water Company,Inc.
172 West State Street
Eagle,ID 83616
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
EWC:EAGLE WATER COMPAI{Y,
an Idatro
Robert V. DeShazo, Jr.,
City:CITY OF EAGLE,IDAHO
mwicipal corporation
Bandy,
oa ATTEST:
o
ST A{K. Bergmann, City
CIry OF EAGLE - EAGLE WATER COMPANY
INTERTIE AGREEMENT - 5
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BoISE,ID SgZr+
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PAULA.TURCIG
January l4,20l9
Subrnitted via U.S. Mail and electronically
Eagle Water Company
172 West State Street
Eagle,ID 83616
RE: Notice of Default
To Eagle Water Company:
On behalf of the City of Eagle, please be advised and take notice that Eagle Water
Company ("EWC") is in default of the Agreement between EWC and the City of Eagle dated
July 12, 2008, a copy of which is attached hereto. This constitutes notice of default under
Section l0 of the Agreement. EWC failed to continue to make payments due and failed to
provide required notice to the City.
Section 6 of the Agreement is entitled "Right of First Refusal" and prescribes a clear
intent and specific process by which the City shall have the "exclusive right" of first refusal
triggered by a determination by EWC to'sell or convey all or any part of its Water System...."
Agreement (attached hereto), Section 6. Upon receipt of such notice from EWC, the Agrecment
prescribes that the "City shall have the exclusive right for 30 days after receiving such notice to
provide Notice of lntent to Purchase the Water System or portion thereof to which such bona fide
offer refers at the amount of said offer...." Id.
The proceedings in Case Nos. SUZ-W-18-02 and EAG-W-18-01 before the Idaho Public
Utilities Commission appear to reflect a triggering event under Section 6 of the Agreement - a
Joint Application of Suez Water Idaho and Eagle Water Company for the Acquisition of Eagle
Water Company. However, EWC did not provide notice to the City beforc making any such
agreement and is therefore in violation of Section 6 and the City's Right of First Refusal.
On behalf of the City, we hereby demand that you give notice stating EWC's desire to
Exhibit
2
January 14,2019
Page2
sell all or specified part(s) of the EWC Water System and the amount and terms of such offer(s)
in detail. Pursuant to Section 10 of the Agreement, you have fifteen (15) days to cure this
default.
Upon your response, or lack thercof within the specified time period, the City will
determine whether to pursue its rights under the Agreement. The City reserves its rights to seek
alternative or additional remedies as may be applicable.
,rffi
Cherese D. Mclain
cc: Molly O'Irary (viaemail)
Michael C. Creamer (ISB No.4030)
Preston N. Carter (ISB No. 8462)
Givens Pursley LLP
601 W. Bannock St.
Boise,ID 83702
Telephone: [phone]
Facsimile: [phone]
[e-mail]
prestoncarter@ ei venspursl ey. corn
Attorneysfor SUEZ Water ldaho Inc.
[3cl74l 1455179.1
IN THE MATTER OF THE JOINT
APPLICATION OF SUEZ WATER
IDAHO AND EAGLE WATER
coMPAl.IY FOR THE ACQLTISITION
OF EAGLE WATER COMPANY
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
Case Nos. SU7-W-fE-O2
EAG.W-18-01
trInsr PRoDUcrroN REeuEsr or SUEZ
Warnnloluo Ixc. ro Cruzens
Ar,r,rno FoR INTEGRTTY ANn
AccOUNTABILITY
SUEZ Water Idaho [nc. ("SUEZ") requests that Citizens Allied for Integrity and
Accountability ("CALA") provide the following docume,nts and information by March l,2Ol9.
This Production Request is continuing, and CAIA is requested to provide additional docume,nts
that it or any person acting on its behalf may later obtain that will augment the documents
produced. Please aoswer each question, provide the documentation requested and provide
supporting workpapers (if applicable). Responses must include the name and phone number of
the person preparing the document, the name, location, and phone number of the record holder,
as well as the name of the person who will sponsor the answer at a hearing if needed. IDAPA
31.01.0r.228.
Exhibit
3FRST PRoDUcrroN ltEeuEsrs oF SUEZ To CAIA - I
Request No. 1: Please provide copies of any and all organizational documents pertaining
to CAIA, including (without limitation) any and all articles of association, bylaws, resolutions or
minutes, and other docume.nts related to CAIA's participation in this proceeding.
Request No. 2: Please provide the names and business addresses of the officers and
directors of CAIA, indicate whether these persons are customers of Eagle Water Company, and
indicate which schedule or tariff under which they take service.
Request No. 3: Please describe the process by which a person or entity is admitted to
membership in CAIA.
Request No.4: Please state the total number of persons or entities who are members of
CALA. Please indicate whether each mernber is a current customer of Eagle Water Company and,
if so, under which schedule or tariffthey take service.
Request No.5: Please state the number of CAIA members that also are members of
another intervenor in this proceeding. For each, please identify which other intervenor the CAIA
member is also a mernber of.
Request No. 6: Please describe the source of funds by which the activities of CAIA are
supported.
Request No. 7: Please describe, in detail, the factual basis for CAIA's statement in its
Petition to Intervene that CAIA's participation in this case will further its interest "maintaining
high quality water resources." Please provide any and all relevant analyses, studies, or other
documents supporting your answer.
Request No. 8: Please describe, in detail, the factual basis for CAIA's statement in its
Petition to Intervene that CAIA's participation in this case will further its interest "maintaining
FIRSTPRoDUCTIoN REQUESTS oT SUEZTo CAIA - 2
local control" of water. Please provide any and all relevant analyses, studies, or other documents
suppofting your answer.
Request No.9: Please describe, in detail, the factual basis for CAIA's staternent in its
Petition to Intervene that there are "possible environmental harms stemming from the merger."
Please provide any and all relevant analyses, studies, or other documents concerning any
possible environmental harms that you attribute to the proposed Eagle Water Company asset
acquisition by SUEZ.
Request No 10: Please describe, in detail, the factual basis for CAIA's statement in its
Petition to lntervene that "the outcome of the proceedings regarding the Joint Application could
also impact service to customers." Please provide any and all relevant analyses, studies, or other
documcnts conceming any impacts on service to customers that you attribute to the proposed
Eagle Water Company asset acquisition by SUEZ.
Request No. l1: Please describe, in detail, the factual basis for CAIA's statsment in its
Petition to Intervene that "the outcome of the proceedings regarding the Joint Application could
also impact . . . water quality." Please provide any and all relevant analyses, studies, or other
documents concerning any impact to water quality that you attribute to the proposed Eagle Water
Company asset acquisition by SUEZ.
Request No. 12: Please describe, in detail, the factual basis for CAIA's statement in its
Petition to lntervene that "the outcome of the proceedings regarding the Joint Application could
also impact . . . chemical treatments." Please provide any and all relevant analyses, studies, or
other documents supporting your answer.
Request No. 13: Please describe, in detail, the factual basis for CAIA's statement in its
Petition to Intervene that "the outcome of the proceedings regarding the Joint Application could
FRSTPRoDUCTIoN REQUESTS oF SUEZ To CAIA - 3
also impact . . . environmental concems." Please provide any and all relevant analyses, studies,
or other documents concerning any impact to environmental that you attribute to the proposed
Eagle Water Company asset acquisition by SUEZ.
Request No. 14: Please describe, in detail, the factual basis for CAIA's statement in its
Petition to Intervene that Eagle Water Company has "many'' customers who "are single parents,
elderly, or living with disabilities on fixed and limited incomes." As part of your answer, please
provide an approximate estimate of the number of such customers. Please also provide any and
all relevant analyses, studies, or other documents that form the basis of your estimate.
Request No. 15: Please identiff any existing programs or other arrangement by which
the City of Eagle can or does provide assistance on water bills to single parents, the elderly,
those living with disabilities; or low-income customers.
Request No, 16. Please state whether CAIA is aware of SUEZ's low-income assistance
programs.
Request No. 17: Please provide copies of all informational materials, pamphlets,
statements, or other communications that CAIA has provided to its members or to the public
regarding the subject matter of this proceeding.
Request No. 18: Does CAIA contend that the phased-in rate increases proposed by
SUEZ in the Joint Application are higher than any rate increases that would be necessary if the
City of Eagle acquired Eagle Water Company? [f so, please describe, in detail, the factual basis
for this position and provide any and all relevant analyses, studies, or other documents
supporting this position.
FIRSTPRODUCTIoN REQUESTS OF SUEZTO CAIA - 4
Request No. 19: Does CAIA contend that the City of Eagle would not seek to move
water under Eagle Water Company water rights to other portions of the City's current or future
senrice area if the City were to acquire Eagle Water Compan/
Request No. 20: Does CAIA contend that the tdaho Departnent of Water Resources
does not have jurisdiction and authority over the place and purpose of the use of the water rights
that are currently owned by Eagle Water Company, even if those water rights are acquired by
SUEZ?
Request No.21: Does CAIA contend thatthe City of Eagle would not chlorinate the
water that would be provided to current Eagle Water Customers if the City were to acquire Eagle
WaterCompanfl
Request No. 22: Does CAIA contend that the City of Eagle does not currenfly chlorinate
the drinking water provided to its current customers?
Requect No. 22: Please identiff each person or entity that CAIA intends to call as a
witness in any technical hearing in this matter. For each, please state the subject matter of their
testimony and provide any documents they considered or relied upon in forming their testimony.
DATED this 8s day of February,20L9.
SUEZ Water Idaho tnc.
By:r
Michael C. Creamer
Preston N. Carter
Givens Pursley LLP
Attorneysfor SUEZ Water ldaho Inc.
FIRST PRODUCTION REQUESTS OF SUEZ TO CAIA - 5
CERTIF'ICATE OF SERVICE
I HEREBY CERTIFY that on the 8fr day of February,2}l9, a true and correct copy of the
foregoing document was served on the following in the manner indicated:
Diane M. Hanian
Commission Secretary
Idaho Public Utilities Commission
47 2 W est Washington Street
Boise, Idaho 83702
IPUC
Brandon Karpen
Sean Costello
Deputy Attorneys General
Idaho Public Utilities Commission
47 2 W est Washington Street
Boise,Idaho 83702
Auorneysfor IPUC
Molly O'Leary
BizCounselor at Iaw
1775W. State St. #150
Boise, D 83702
Counselfor Eagle Water Company
Robert DeShazo
Eagle Water Company, Inc.
188 W. State Street
Eagle, Idaho 83616
Petitioner
N.L. Bangle
188 W. State Street
Eagle,ID 83616
Petitioner
Stan Ridgeway, Mayor
City of Eagle
660 E. Civil Lane
Eagle,ID 83616
Intervenor City of Eagle
Cherese D. Mclain
MSBT Law, Chtd.
7699 W. Riverside Drive
Boise, Idaho 83714
Attorneys for Intervenor City of Eagle
[ ] byU.S. Mail
[ ] bV Personal Delivery (Original & 3 copies)
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[X] bV E-Mail secretary(a)puc.idaho. gov
diane .idaho.eov
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[X] by E-Mail brandon.karpen(rDpuc.idaho.eov
se2n llo(douc.idaho.sov
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[X] bV E-Mail molly(dbizcounseloratlaw.com
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[X] by E-Mail nbangle(@h2o-solutionsllc.net
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[X] bV E-Mail srideewa],(Ecityofeasle. ors
sbersmann@ citvo fea gle.org
[ ] bv U.S. Mail
[ ] bV Personal Delivery
[ ] bV Facsimile
Fnsr PnooucrroN REeuESrs oF SUEZ ro CAIA - 6
lxl bv E-Mail cdm(rumsbtlaw.com
Norman M. Semanko
Parsons Behle & Latimer
800 West Main Street, Suite 1300
Boise,Idaho 83702
Attorneys for Interttenor Eagle l{ater
Customer Group
[ ] bv U.S. Mail
[ ] bV Personal Delivery
[ ] bV Facsimile
[X] bV E-Mail NSemanko(g)parsonsbehle.com
ec f [e-mail]
Abigail R. Germaine
Deputy City Attomey
Boise City Attorney's Office
150N. Capitol Blvd.
P.O. Box 500
Boise, tdaho 83701 -0500
Attorneysfor Intertenor, City of Boise
[ ] bv U.S. Mail
t I bV Personal Delivery
[ ] bV Facsimile
[X] bV E-Mail agermaine(a)cityofbojse.org
James M. Piotrowski
PIOTROWSKI DURAND, PLLC
P.O. Box 2864
1020 W. Main Street, Suite 440
Boise,ID 83701
Attorneys for Intervenor Citizens Allied for
Inte grity and Accountability
t I bvU.S. Mail
[ ] byPersonal Delivery
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[X]bV E-Mail James(4idunionlaw.com
Brad M. Purdy
Attorney at Law
2019 N, lTth Street
Boise,ID 83702
Attomey for Community Action Partnership
Association of ldaho
[ ] bvU.S. Mail
[ ] bV Personal Delivery
[ ] bV Facsimile
[X] bV E-Mait bmpurdv(g)hotmail.com
Preston N. Carter
FrRsr PRoDUcrroN REQUESTS OF SLIEZ TO CAIA - 7