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012 PSCo's Answer to First Amended Petition, Affirmative Defenses and Cross-Petition 8.5.191 DISTRICT COURT, BOULDER COUNTY, COLORADO Court Address: 1777 6TH Street, Boulder Colorado 80302 303-441-3750 _________________________________________________ Petitioner: THE CITY OF BOULDER, a Colorado Home Rule City, v. Respondents: PUBLIC SERVICE COMPANY OF COLORADO, a Colorado Corporation, d/b/a XCEL ENERGY; MORGAN GUARANTY TRUST COMPANY OF NEW YORK; and PAUL WEISSMANN, in his official capacity as Treasurer of Boulder County. _________________________________________________ Attorneys for Respondent, Public Service Company of Colorado John R. Sperber, Atty. Reg. No. 22073 Brandee L. Caswell, Atty. Reg. No. 30706 Katie M. Gray, Atty. Reg. No. 42331 FAEGRE BAKER DANIELS LLP 1144 Fifteenth Street, Suite 3400 Denver, Colorado 80202 Telephone: (303) 607-3500 Fax: (303) 607-3600 Email: jack.sperber@FaegreBD.com brandee.caswell@FaegreBD.com katie.gray@FaegreBD.com COURT USE ONLY __________________________ Case Number: 19 CV 30637 Division: 5 ANSWER TO FIRST AMENDED PETITION IN CONDEMNATION, AFFIRMATIVE DEFENSES, AND CROSS-PETITION Respondent, Public Service Company of Colorado, a Colorado corporation (“PSCo”), through its counsel, Faegre Baker Daniels LLP, hereby answers each allegation of the First Amended Petition in Condemnation (“Petition”) filed by the City of Boulder (the “City”); asserts its affirmative defenses; submits a Cross-Petition pursuant to C.R.S. § 38-1-109, and elects a commission pursuant to C.R.S. § 38-1-105. 2 ANSWER 1. PSCo admits the allegations in Paragraph 1 of the Petition. 2. PSCo admits that the cited provisions grant authority to condemn in certain instances but denies that the City has legal authority to condemn pursuant to those provisions here. PSCo denies the remaining allegations in Paragraph 2 of the Petition. 3. PSCo admits that Colorado Constitution Article XX, sections 1 and 6 grant condemnation authority in certain instances but denies that the City has legal authority to condemn pursuant to those provisions here and denies the remaining allegations in Paragraph 3 of the Petition. 4. PSCo denies that the City has accurately quoted Article XV, section 8. PSCo admits that Paragraph 4 contains an accurate quote of a portion of Article XX section 1. PSCo denies that the City is properly exercising condemnation powers pursuant to these sections here and denies the remaining allegations in Paragraph 4 of the Petition. 5. PSCo admits that it and Xcel Energy, Inc. own and operate existing electric distribution facilities and other property interests and that the City has indicated an intent to acquire some property interests owned by them. PSCo denies the remaining allegations in Paragraph 5 of the Petition. PSCo also denies that the City has adequately described the property to be acquired in these proceedings. 6. PSCo denies the allegations in Paragraph 6 of the Petition. 7. PSCo denies the allegations in Paragraph 7 of the Petition. 8. PSCo admits the allegations in Paragraph 8 of the Petition. 9. PSCo admits that it and Xcel Energy, Inc. own existing electric distribution facilities and other property interests in and near the City of Boulder and throughout the State of Colorado and that the City has indicated an intent to acquire some property interests owned by them. PSCo denies the remaining allegations in Paragraph 9 of the Petition. 10. PSCo denies the allegations in Paragraph 10 of the Petition. 11. PSCo is without sufficient information or knowledge regarding the truth or accuracy of the allegations in Paragraph 11 of the Petition and therefore denies the same. 12. PSCo denies the allegations in Paragraph 12 of the Petition. 13. PSCo is without sufficient information or knowledge regarding the truth or accuracy of the allegations in Paragraph 13 of the Petition and therefore denies the same. 3 14. PSCo admits that this action is brought in Boulder County. PSCo also admits that it and Xcel Energy, Inc. own existing electric distribution facilities and other property interests in Boulder County. PSCo denies the remaining allegations in Paragraph 14 of the Petition. 15. PSCo admits that the rule authorizes venue in Boulder County but denies that venue is proper here under the circumstances of this case. PSCo denies the remaining allegations in Paragraph 15 of the Petition. 16. PSCo denies the allegations in Paragraph 16 of the Petition. 17. PSCo denies the allegations in Paragraph 17 of the Petition. 18. PSCo denies the allegations in Paragraph 18 of the Petition. 19. PSCo admits that it and Xcel Energy, Inc. own over 100,000 pieces of equipment in and around the City of Boulder, including the types of facilities described in Paragraph 19 of the Petition. PSCo is without sufficient information or knowledge regarding the truth or accuracy of the remaining allegations in Paragraph 19 of the Petition and therefore denies the same. 20. PSCo admits that changes to its electric distribution system are sometimes made. PSCo admits that it provided certain information about its system to the City at various times but denies that PSCo provided the Exhibits attached to the Petition.1 PSCo denies that plans for future amendments to the Petition are an appropriate substitute for adequately identifying the property or obtaining necessary PUC approvals in the first instance. PSCo is without sufficient information 1 PSCo is inhibited in its ability to answer the Petition because the Petition is based on information that neither the City, PSCo, nor any other party is authorized to use in these proceedings. This is because the Colorado Public Utilities Commission (the “PUC”) has already entered multiple protective orders in ongoing proceedings that together with the PUC rules prohibit the City from using any confidential or highly confidential information, including Critical Energy Infrastructure Information (“CEII”), in any “subsequent or concurrent civil or regulatory proceedings” without seeking and obtaining an order from the PUC allowing it to do so. The City has not yet sought— let alone obtained—any such order. Although the City withdrew certain Confidential Exhibits referenced in its original Petition, it is still relying on allegations that it already served or provided those same Confidential Exhibits to PSCo. See Petition at ¶¶ 26-27. As a result, the City is still using highly confidential information in these proceedings in violation of PUC orders. Furthermore, Amended Exhibit 2 still contains information about the location of PSCo’s property interests that the City agreed should be designated confidential in the PUC proceedings. And Amended Exhibit 3 still contains compiled substation asset information deemed highly confidential in the PUC proceedings. The City’s removal of substation names from this Exhibit does not cure the problem and, in any event, the substation names still appear in the Petition itself at paragraphs 33, 39, and 70-71. As a result, PSCo cannot adequately respond to the Petition or defend itself in these proceedings without using the same confidential and highly confidential information improperly used by the City. 4 or knowledge regarding the truth or accuracy of the remaining allegations in Paragraph 20 of the Petition and therefore denies the same. 21. PSCo admits that the City has provided PSCo with certain spreadsheets which the City alleges relate to some of PSCo’s property interests. PSCo denies the remaining allegations in Paragraph 21 of the Petition. 22. PSCo admits that certain information relating to its facilities and property interests are CEII but is without sufficient information or knowledge regarding the truth or accuracy of the remaining allegations in Paragraph 22 and therefore denies the same. 23. Paragraph 23 of the Petition contains an assertion about what the City intends to do that requires no response by PSCo. 24. PSCo admits that it owns some of the property interests discussed in Paragraph 24 of the Petition. PSCo denies that the allegations in Paragraph 24 constitute an adequate description of the property to be acquired in these proceedings. PSCo is without sufficient information or knowledge regarding the truth or accuracy of the remaining allegations in Paragraph 24 of the Petition and therefore denies the same, including subparts 24(A) through (D). 25. PSCo admits that it owns some of the property interests discussed in Paragraph 25 of the Petition. PSCo denies that Paragraph 25 identifies all of the property being taken or damaged by the City and denies that the allegations in Paragraph 25 constitute an adequate description of the property to be acquired. PSCo is without sufficient information or knowledge regarding the truth or accuracy of the remaining allegations in Paragraph 25 of the Petition, including subparts 25(A) through (G), and therefore denies the same. 26. PSCo admits that the City served PSCo with Confidential Exhibits 2 and 3 along with the original Petition. PSCo denies the remaining allegations in Paragraph 26 of the Petition. 27. PSCo admits that the City provided PSCo’s counsel with a flash drive containing Confidential Exhibit 4 on July 15, 2019. PSCo denies the remaining allegations in Paragraph 27 of the Petition. 28. PSCo is without sufficient information or knowledge regarding the truth or accuracy of the allegations in Paragraph 28 of the Petition and therefore denies the same. 29. PSCo admits that it agreed to the filing of an Exhibit in the PUC Proceedings identifying certain facilities the City was seeking to have designated by the PUC for future transfer to the City but denies that the Exhibit was approved by the PUC as facilities to be transferred to the City. PSCo is without sufficient information or knowledge regarding the truth or accuracy of the remaining allegations in Paragraph 29 of the Petition and therefore denies the same. 30. PSCo admits that it provided some unrecorded real property interests to the City as part of the PUC proceedings but denies that it provided to the City a spreadsheet of all real property 5 interests and denies that Amended Exhibit 2 contains any documents other than spreadsheets. PSCo is without sufficient information or knowledge regarding the truth or accuracy of the remaining allegations in Paragraph 30 of the Petition and therefore denies the same. 31. PSCo is without sufficient information or knowledge regarding the truth or accuracy of the allegations in paragraph 31 of the Petition and therefore denies the same. 32. PSCo admits that it has constructed, operated, and maintained facilities in and near the City of Boulder for many years. PSCo denies the remaining allegations in Paragraph 32 of the Petition. 33. PSCo admits that it owns property interests and facilities in the four substations described in Paragraph 33. PSCo denies the remaining allegations in Paragraph 33 of the Petition, including subparts 33(A) through (C). PSCo also denies that Paragraph 33 adequately describes the property interests within substations that the City seeks to acquire. 34. PSCo admits that Exhibit 5 contains an Easement Sharing Agreement entered into by the City and PSCo, which speaks for itself. PSCo denies that the Agreement is applicable to these proceedings because it has not yet been approved by the Colorado Public Utilities Commission (the “PUC”) as required before this action can properly commence. PSCo is without sufficient information or knowledge regarding the truth or accuracy of the remaining allegations in Paragraph 34 and therefore denies the same. 35. PSCo denies the allegations in Paragraph 35 of the Petition. PSCo states that any arrangements for shared use of substations depend upon PUC approvals the City has not yet obtained. 36. PSCo denies the allegations in subparts 36(A) through (D) and subparts 36(G) through (I) of Paragraph 36. PSCo admits that the City has indicated that it is not seeking to acquire any transmission or generation facilities for electricity or distribution or transmission facilities for natural gas, but PSCo states that some or all of these facilities and property and business interests related thereto will be taken or damaged as a result of the City’s condemnation. PSCo denies the remaining allegations in Paragraph 36 of the Petition. 37. PSCo admits that the City has developed a general “Separation Plan” but denies that the Separation Plan is properly considered part of the “Project” as that term is used in Colorado condemnation law and denies that the Separation Plan has been determined since the PUC has not yet entered final orders regarding such plan due to outstanding conditions that have not yet been satisfied. PSCo denies the remaining allegations in Paragraph 37 of the Petition. 38. PSCo denies that Paragraph 38 properly describes a “Project” as that term is used in Colorado condemnation law. PSCo also denies that the Cost Agreement is applicable to these proceedings because by its own terms it shall only be effective with PUC approval, which has not yet been obtained. PSCo admits that the City is not going to actually acquire any property or proceed with any project unless and until certain conditions are met as generally described in 6 subpart C. PSCo denies the remaining allegations in Paragraph 38 of the Petition, including its subparts. 39. PSCo denies the allegations in Paragraph 39 of the Petition and states that the SIS Report speaks for itself. 40. Paragraph 40 of the Petition, including subparts 40(A) through (B), contains legal conclusions that PSCo denies. PSCo admits that the City has indicated it does not intend to acquire any electric generation or transmission facilities, any natural gas facilities, or any property interests necessary for such facilities, but states that some or all of such interests are being taken or damaged by the City. PSCo denies the remaining allegations in Paragraph 40 of the Petition. 41. PSCo denies the allegations in Paragraph 41 of the Petition. 42. PSCo admits that Paragraph 42 contains an accurate quote of part of a sentence contained in the 2017 PUC Decision but denies that the quote accurately captures the findings of the PUC and denies that the other conditions referenced by the City following the quote have been satisfied. PSCo states that the 2017 PUC Decision speaks for itself. PSCo denies the remaining allegations in Paragraph 42 of the Petition. 43. PSCo denies the allegations in Paragraph 43 of the Petition and states that the Cost Agreement speaks for itself. 44. Paragraph 44 of the Petition contains legal conclusions that PSCo denies. PSCo denies any remaining allegations in Paragraph 44 of the Petition. 45. PSCo admits that voters in the City adopted Ballot Question 2C on November 1, 2011. PSCo denies the remaining allegations in Paragraph 45 of the Petition. 46. PSCo admits that voters in the City adopted Ballot Question 2O on November 7, 2017. The remaining allegations in Paragraph 46 of the Petition are legal conclusions and PSCo denies the same. 47. PSCo admits that the Boulder City Council adopted Ordinance No. 7918, which speaks for itself, on August 20, 2013. PSCo denies the remaining allegations in Paragraph 47 of the Petition. 48. PSCo admits that the City filed a Petition in Condemnation, naming both PSCo and Xcel Energy, Inc. as respondents, on July 17, 2014 in the case numbered 14-CV-30890. PSCo denies the remaining allegations in Paragraph 48 of the Petition. 49. PSCo admits that it and Xcel Energy, Inc. filed a Motion to Dismiss on August 12, 2014. 7 50. PSCo admits that the court granted the Motion to Dismiss on February 13, 2015. The remaining allegations in Paragraph 50 of the Petition are legal conclusions and PSCo denies the same. PSCo states that the District Court’s order speaks for itself. 51. PSCo admits that on January 28, 2014, the Boulder County District Court in Case No. 2014-CV030047 granted the City’s Petition for Writ of Certiorari or Review of the PUC’s Decision No. C13-1530 dated October 29, 2013 and Decision No. C13-1550 dated December 18, 2013 in Proceeding No. 13D-0498E. PSCo denies the remaining allegations in Paragraph 51 of the Petition. 52. PSCo admits that on January 14, 2015, the District Court issued a decision affirming the PUC’s October 29, 2013 Decision No. C13-1350 and December 11, 2013 Decision No. C13-1550, which speaks for itself. The remaining allegations in Paragraph 52 of the Petition are legal conclusions and PSCo denies the same. 53. PSCo states that the January 14, 2015 District Court decision speaks for itself. The remaining allegations in Paragraph 53 of the Petition are legal conclusions and PSCo denies the same. 54. PSCo denies the allegations in Paragraph 54 of the Petition. 55. PSCo admits that on July 7, 2015, the City filed an application with the PUC in Proceeding No. 15A-0589E, which speaks for itself. PSCo denies the remaining allegations in Paragraph 55 of the Petition. 56. PSCo admits that on December 30, 2015, the PUC issued a decision dismissing a portion of the City’s application, which speaks for itself. The remaining allegations in Paragraph 56 of the Petition are legal conclusions and PSCo denies the same. 57. PSCo admits that the City filed a Second Application, which speaks for itself, on or about September 28, 2016. The remaining allegations in Paragraph 57 of the Petition are legal conclusions and PSCo denies the same. 58. PSCo admits that the City filed a Third Application on or about May 12, 2017, which has not been finally approved by the PUC and speaks for itself. The remaining allegations in Paragraph 58 of the Petition are legal conclusions and PSCo denies the same. 59. PSCo admits the allegations in Paragraph 59 of the Petition. 60. Paragraph 60 of the Petition contains legal conclusions and PSCo denies the same. PSCo denies any remaining allegations in Paragraph 60 of the Petition. 61. PSCo admits that on October 26, 2018, the City and PSCo filed a Joint Notice of Filing of Permanent Easement Agreement, Cost Agreements, and Corrected List of Assets Outside 8 Substations and Boulder’s Report Regarding the Commencement of Condemnation Proceedings. PSCo denies the remaining allegations in Paragraph 61 of the Petition. 62. PSCo admits that it filed a Notice of Withdrawal but denies the remaining allegations in Paragraph 62 of the Petition. 63. PSCo admits that it previously indicated that Exhibit 5A filed as part of the Joint Filing contained an accurate description of some facilities owned by it but denies that the PUC has designated those facilities for acquisition by the City and denies that the Exhibit contains all facilities that may be taken or damaged by the City if this case proceeds. PSCo denies the remaining allegations in Paragraph 63 of the Petition. 64. PSCo denies the allegations in Paragraph 64 of the Petition. 65. PSCo denies the allegations in Paragraph 65 of the Petition and states that the 2017 PUC Decision speaks for itself. 66. PSCo denies the allegations in Paragraph 66 of the Petition and states that the 2017 PUC Decision speaks for itself. 67. PSCo denies the allegations in Paragraph 67 of the Petition. 68. PSCo denies the allegations in Paragraph 68 of the Petition. 69. PSCo admits that the City submitted its Transmission-to-Load Interconnection Request on January 9, 2018 and that PSCo issued a System Impact Study Report on October 31, 2018, which speak for themselves. PSCo denies the remaining allegations in Paragraph 69 of the Petition. 70. PSCo denies the allegations in Paragraph 70 of the Petition. 71. PSCo states that the SIS Report, and subsequent SIS reports and documents related thereto, speak for themselves. PSCo denies the allegations in Paragraph 71 of the Petition. 72. PSCo states that the SIS Report, and subsequent SIS reports and documents related thereto, speak for themselves. PSCo denies the allegations in Paragraph 72 of the Petition. 73. PSCo denies the allegations in Paragraph 73 of the Petition. 74. PSCo admits that it entered into a Facilities Study Agreement with the City dated as of May 6, 2019, which speaks for itself. PSCo denies the remaining allegations in Paragraph 74 of the Petition. 75. PSCo admits that certain SIS Agreements and the Facilities Study Agreement were filed with the FERC in the Docket numbers referenced and were accepted for filing. PSCo denies the remaining allegations in Paragraph 75 of the Petition. 9 76. Paragraph 76 of the Petition contains legal conclusions that PSCo denies. PSCo denies any remaining allegations in Paragraph 76 of the Petition. 77. PSCo admits that Boulder City Council adopted Ordinance 8302 on or about December 4, 2018 and that a copy of the Ordinance is attached as Exhibit 7 to the Petition. PSCo denies the remaining allegations in Paragraph 77 of the Petition. 78. PSCo denies the allegations in Paragraph 78 of the Petition. 79. PSCo admits that the City Manager sent a letter titled “Notice of Intent to Acquire” on January 31, 2019, the City requested a meeting with PSCo, and PSCo asked the City to accurately describe the Property it sought to acquire and to make an offer to purchase in writing before meeting. PSCo denies the remaining allegations in Paragraph 79 of the Petition. 80. PSCo admits that the City’s right-of-way agent sent a letter titled “Reaffirmation and Amended Notice of Intent; Final Offer to Acquire” on June 12, 2019, PSCo informed the City it intended to respond on June 28, 2019, and the City filed the original Petition before PSCo was able to do so. PSCo denies the remaining allegations in Paragraph 80 of the Petition. 81. PSCo denies the allegations in Paragraph 81 of the Petition. 82. PSCo denies the allegations in Paragraph 82 of the Petition. 83. PSCo denies the allegations in Paragraph 83 of the Petition. 84. PSCo denies the allegations in Paragraph 84 of the Petition. 85. PSCo denies the allegations in Paragraph 85 of the Petition. 86. PSCo denies the allegations in Paragraph 86 of the Petition. 87. PSCo denies the allegations in Paragraph 87 of the Petition. 88. PSCo denies the allegations in Paragraph 88 of the Petition. 89. PSCo denies the allegations in Paragraph 89 of the Petition. 10 AFFIRMATIVE DEFENSES2 1. This Court lacks subject matter jurisdiction over this action for all of the reasons described in PSCo’s Motion to Dismiss filed simultaneously with this Answer. PSCo’s Motion to Dismiss should be ruled upon before any further action is taken by the Court in these proceedings. 2. The City’s Petition is barred by claim and issue preclusion. 3. The City’s Petition is barred by controlling PUC Procedures that have not yet been satisfied. 4. The Petition fails to state a claim upon which relief can be granted. 5. The Petition does not contain a sufficient description of the property sought to be acquired by the City. 6. The City does not currently possess the legal authority to condemn PSCo’s property for the purposes stated in the Petition. 7. The City never made the required necessity determination for the property it seeks to acquire from PSCo in the Petition and no such necessity exists. 8. There City never made the required public purpose or public use determinations for the Project it attempts to describe in the Petition or for the property it seeks to acquire from PSCo in the Petition and no such public purpose or public use exists. 9. The City has not negotiated in good faith with PSCo for the acquisition of PSCo’s property. 10. The City has not complied with all conditions precedent to filing its condemnation action. 11. The Petition by its own terms recognized that this action is premature and uncertain, and that the City may never go forward with the Project or the acquisition of the property described herein. 12. Any decision made by the City’s staff, employees, consultants or attorneys with respect to the Project, the Property, or the public purposes and necessity associated therewith constitute an unlawful delegation of condemnation powers by the City. 2 As discussed in footnote 1 with respect to the Answer, PSCo is limited in its ability to assert affirmative defenses because the Petition is based on information that neither the City, PSCo, nor any other party is authorized to use at all in these proceedings. 11 13. The Petition implicates facilities, property, property interests, business and contract interests that may be taken or damaged and that are held by third parties who should be joined pursuant to C.R.C.P. 19(a) or, if joinder is not feasible, these parties are indispensable pursuant to C.R.C.P. 19(b). These third parties include but are not limited to Xcel Energy, Inc.; Xcel Energy Services, Inc.; IBM; Tri-State Generation and Transmission Association; Poudre Valley REA, holders of various agreements between PSCo and third parties referenced in Paragraph 25(G) of the Petition and other such agreements; underlying fee owners and other third parties affected by the unspecified temporary construction easements referenced in Paragraph 25(E) and other real property interests the City may seek to acquire. 14. PSCo reserves the right to raise any additional defenses or other matters at an in limine hearing as provided for in C.R.S. § 38-1-105, -109 and other relevant laws. 15. If additional facts come to light that are relevant to any of PSCo’s defenses, PSCo reserves the right to amend its answer to allege such facts. CROSS-PETITION 1. The City’s Petition named PSCo as a respondent and alleged that PSCo has an interest in the property being acquired by the City. 2. The Petition includes allegations about the property to be acquired from PSCo, but the description of the property is ambiguous, inconsistent, and indefinite. The Petition does not satisfy the requirements for an adequate description of the property to be acquired under the relevant Colorado statute and case law. 3. As detailed in PSCo’s Motion to Dismiss for Lack of Subject Matter Jurisdiction, the PUC has yet to determine how PSCo’s facilities should be assigned, divided, or jointly used to protect the system’s effectiveness, reliability, and safety. Since the PUC has not made the requisite determinations regarding assets inside or outside substations or the real property interests that may be subject to transfer, Boulder’s taking is still yet to be determined. As a result, PSCo cannot fully describe all of the property interests omitted from the Petition which will be taken or damaged by the City if this action proceeds. The list of impacted property interests below is therefore necessarily a partial list. 4. Another issue limiting PSCo’s ability to identify the errors and omissions in the City’s property description is the fact that the Petition is based on highly confidential information from the ongoing PUC proceedings. Protective orders entered by the PUC prohibit the City, PSCo, or any other party from using highly confidential information in this civil action without permission from the PUC. 5. The Petition omitted certain property interests owned by PSCo which will be taken or damaged by the City if the PUC ultimately approves the designation of assets for transfer and a condemnation action by the City is authorized to proceed, including but not limited to the following: 12 a. Additional facilities, equipment, and appurtenances not listed on Exhibit 1 to the Petition or otherwise adequately described in the Petition; b. Additional real property interests not listed on Exhibit 2, including recorded and non-recorded easements, numerous easements identified by the City in GIS shape files as “City Easements” not identified in the Petition that actually contain recorded real property interests owned by PSCo, rights to use easements within subdivision plats, prescriptive and other common law easements, tariff easements, licenses, state law rights to use street right-of-way and other public property, rights granted or reserved by other instruments, and other rights to use real property; c. Additional interests in substations to be identified in co-location agreements and orders in the ongoing PUC proceedings; d. Going concern and business losses; e. PSCo’s certificate of public convenience and necessity giving it the exclusive right to provide bundled retail electric services (i.e. generation, transmission and distribution) to customers within Boulder city limits and the direct taking of and damages to PSCo’s business related thereto; f. Contributions In Aid of Construction and other facilities and property provided to PSCo by third parties but not included in PSCo’s Uniform System of Accounts; g. Stranded investments and assets associated with the distribution facilities and property to be acquired by the City; h. Stranded generation and transmission assets and investments; i. Impacts to PSCo’s renewable energy portfolio; j. Losses related to PSCo’s investments in Solar Rewards and DSM programs within Boulder and the surrounding area; k. Separation costs, easement replacement costs, true up costs, and other damages that may be addressed by agreements between the parties, but these agreements are part of the ongoing PUC proceedings and have not yet received PUC approval; l. Damages to other real property, facilities, and business operations based upon the City’s proposed shared use of easements and other property rights also containing electric distribution, transmission, or natural gas facilities to be retained by PSCo, or rights by PSCo to use such property rights for such other facilities that may be addressed at least in part by agreements between the parties, but these agreements are part of the ongoing PUC proceedings and have not yet received PUC approval; 13 m. Personal property and equipment; n. Contract rights and agreements, technology systems and data, GIS and other facilities information and mapping, books, records, manuals, studies and reports, permits, approvals, licenses, other governmental and regulatory rights, engineering, accounting, legal, human resource, customer, and other intangibles; o. Impacts to PSCo’s remaining electric distribution, transmission and generation facilities, real property, business interests and operations and customers outside the city served by PSCo; and p. All other property, facilities, equipment, personal property, business, contract, going concern, tangible and intangible interests being taken or damaged by the City’s acquisition not specifically identified herein. PSCo reserves the right to identify such additional interests as this case proceeds and more information becomes available regarding the scope of the City’s proposed project and property acquisitions. 6. C.R.S. § 38-1-109 provides that “[a]ny person not made a party to [an eminent domain] proceeding may become such by filing a cross petition at any time before the hearing, setting forth that he is an owner or has an interest in the property sought to be taken or damaged by the petitioner and stating the character and extent of such interest.” 7. A person who is already a party to an eminent domain proceeding may also file a cross-petition pursuant to C.R.S. § 38-1-109 to include additional property. Scanland v. Bd. of Cnty. Comm’rs, 46 P.2d 894, 895 (Colo. 1935); Denver & R.G.R. Co. v. Griffith, 31 P. 171, 172 (Colo. 1892). 8. Because PSCo’s property interests listed in this Cross-Petition will be taken or damaged by the City’s acquisition in this action, PSCo respectfully requests that these property interests be included in the proceedings. WHEREFORE, PSCo prays as follows: 1. That the Court first consider and resolve PSCo’s Motion to Dismiss for lack of subject matter jurisdiction filed simultaneously with this Answer and Cross-Petition before taking any other action in this proceeding. 2. That, if the Motion to Dismiss is denied, that the Court consider and resolve, in limine, all issues touching upon the sufficiency of the Petition before this matter proceeds to a determination of just compensation. 3. That the Petition be dismissed and that PSCo be awarded its reasonable attorney fees and costs pursuant to C.R.S. § 38-1-122. 14 4. In the alternative, if the Petition is not dismissed, PSCo prays that the Court: a. Grant PSCo’s Cross-Petition and order that PSCo’s property interests listed in the Cross-Petition are included in these proceedings. b. Require the City to pay just compensation to PSCo pursuant to the provisions of Article II, Section 15 of the Colorado Constitution, and all other applicable laws relating to the taking of property for public use. c. Require the City to pay interest as provided by law pursuant to the provisions of Article I, Title 38 of C.R.S. d. Require the City to pay all of the expenses incurred by PSCo in defending this proceeding as are appropriate under law including, but not limited to, all of PSCo’s court costs, deposition costs, witness fees, expert witness fees, consultant fees, appraisal costs, attorney fees, and any other litigation expenses which are otherwise appropriate for the City to pay PSCo in eminent domain proceedings. e. Should a sufficient award be entered, require the City to pay all of PSCo’s attorney fees pursuant to C.R.S. § 38-1-122(1.5). f. Grant such other and further relief that the Court deems appropriate. 5. PSCo, pursuant to C.R.S. § 38-1-105, demands commission to determine the just compensation owed for the taking and damaging of its property. Respectfully submitted this 5th day of August, 2019. FAEGRE BAKER DANIELS LLP /s/ John R. Sperber John R. Sperber, Atty. Reg. No. 22073 Brandee L. Caswell, Atty. Reg. No. 30706 Katie M. Gray, Atty. Reg. No. 42331 Attorneys for Respondent Public Service Company of Colorado, a Colorado corporation 15 CERTIFICATE OF SERVICE The undersigned certifies that on August 5th, 2019, a copy of the foregoing ANSWER TO PETITION IN CONDEMNATION, AFFIRMATIVE DEFENSES, AND CROSS- PETITION was served on the following by the methods listed below: Attorneys for Petitioner, City of Boulder: Office of the Boulder City Attorney Thomas A. Carr Kathleen E. Haddock P.O. Box 791 Boulder, CO 80306 carrt@bouldercolorado.gov haddockk@bouldercolorado.gov ( ) First Class Mail ( ) Hand Delivery ( ) Overnight Delivery (X ) CCES ( ) E-Mail Hamre, Rodriguez, Ostrander & Dingess, PC Donald M. Ostrander Richard F. Rodriguez 3600 S. Yosemite Street, Suite 500 Denver, CO 80237 dostrander@hrodlaw.com rrodriguez@hrodlaw.com ( ) First Class Mail ( ) Hand Delivery ( ) Personal Service ( ) Overnight Delivery (X ) CCES ( ) E-Mail Attorney for Defendant, Paul Weissmann, in his official capacity as Treasurer of Boulder County Olivia D. Lucas Boulder County Attorney P.O. Box 471 Boulder, CO 80306 olucas@bouldercounty.org ( ) First Class Mail ( ) Hand Delivery ( ) Overnight Delivery (X ) CCES ( ) E-Mail /s/Lisa Riggenbach Legal Administrative Assistant Legal Administrative Assistant