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017 Cross Petition of IBM with Exhibits and Proposed OrderDISTRICT COURT, BOULDER COUNTY, COLORADO Boulder County Justice Center 1777 6th Street, Boulder, Colorado 80302 ▲COURT USE ONLY▲ THE CITY OF BOULDER, a Colorado Home Rule City, PETITIONER, v. PUBLIC SERVICE COMPANY OF COLORADO, a Colorado Corporation, d/b/a XCEL ENERGY; MORGAN GUARANTY TRUST COMPANY OF NEW YORK; and PAUL WEISSMAN, in his official capacity as Treasurer of Boulder County, RESPONDENTS. WIDLUND LAW, L.L.C. Douglas S. Widlund, #21042* 7200 South Alton Way, Suite A220 Centennial, CO 80112 Telephone: 303.839.1550 E-mail: doug@butcherwidlund.com WILKINSON BARKER KNAUER LLP Raymond L. Gifford, #21853* Caitlin M. Shields, #41539* 1755 Blake Street, Suite 470 Denver, CO 80202 Telephone: 303.626.2350 E-mail: rgifford@wbklaw.com cshields@wbklaw.com Attorneys for Cross Petitioner IBM *Counsel of Record Case Number: 2019CV30637 Div.: 5 Ctrm: _____ CROSS PETITION OF INTERNATIONAL BUSINESS MACHINES CORPORATION International Business Machines Corporation (“IBM”) submits this Cross Petition seeking joinder as a respondent in this condemnation action, and states as follows: 2 C.R.C.P. 121 § 1-15 CERTIFICATION Undersigned counsel conferred regarding this Cross Petition with counsel for the following parties to this proceeding: (1) Petitioner City of Boulder (“Boulder” or “Petitioner”); (2) Public Service Company of Colorado, d/b/a Xcel Energy (“Public Service”); and (3) the Colorado Public Utilities Commission (“PUC” or “Commission”). Public Service concurs with the relief requested herein; the PUC takes no position; and Boulder objects to the relief sought, necessitating the filing of this Cross Petition. FACTUAL BACKGROUND 1. Boulder filed its Amended Petition in Condemnation (“Petition”) in the above-captioned proceeding with this Court on July 22, 2019. As set forth in the Petition, Boulder seeks to condemn a vast array of electric distribution facilities and related real property interests and contractual rights owned and held by Public Service. Boulder’s Petition also implicates IBM’s real property interests and contractual rights, justifying IBM’s participation in this proceeding. 2. The only respondents named in the Petition are Public Service, Morgan Guaranty Trust Company of New York (holder of Public Service indebtedness secured by lands and interest of Public Service), and the Treasurer of Boulder County (named pursuant to C.R.S. § 39-3-134). 3. Boulder has not made publicly available the detailed descriptions of the property and rights subject to the Petition, which are provided as confidential exhibits to the Petition. As a result, as of the date of this Cross Petition IBM has access to the Petition only, including the high-level descriptions of property and rights subject contained in the Petition. 3 4. IBM is a global leader in information technology products, services, and solutions. IBM’s Boulder campus located at 6300 Diagonal Highway is comprised of approximately 464 acres located within the City of Boulder’s municipal limits and hosts the company’s largest data center in the world. The Boulder campus, which was established approximately 50 year ago, houses servers that store and process data for some of the world’s most critical public and private institutions. IBM’s Boulder facility runs 365 days a year, 24 hours a day. IBM has gone to great lengths over many years in contracting with its electric service provider, Public Service, to ensure its electric needs are constantly met, with reliability, expansion planning and execution, and customer service at a premium. IBM is one of Public Service’s largest electric customers in Boulder, if not the State of Colorado. In fact, pursuant to a contractual agreement between IBM and Public Service and a Colorado Public Utilities Commission (“PUC”)-approved tariff, IBM pays a monthly service charge of $98,640.00 – the highest in the state – in exchange for the unique electric service and facilities it needs.1 5. Paragraph 25 of the Petition identifies the property sought for acquisition in this condemnation proceeding, which includes all “facilities, equipment and property interests identified on Exhibit 1 and Confidential Exhibits 2 and 3.” Before amendment to the original Petition in Condemnation, a portion of Petition Exhibit 3 was available for public view. A specific substation utilized to provide service to IBM identified as “Substation F” in related proceedings before the PUC was included as part of the property to be acquired on Petition Exhibit 3.2 This specific Substation F is also referenced in ¶ 33 of the Petition as part of the 1 COLO. PUC No. 8 Electric, Third Rev. Sheet No. 70. 2 Boulder’s Petition identified this Substation F by name, in contravention of the Protective Order in the PUC proceeding. Herein, IBM will refer to this substation as “Substation F,” the 4 substation assets to be acquired by Petitioner. ¶ 39(E) of the Petition also references this substation, stating “[a]t the [XXX] Substation [F], Boulder will own the distribution equipment currently owned by Xcel and pay for construction of a new electrical equipment enclosure for Xcel.” ¶¶ 24(c), 26, and 31 confirm that the property sought for condemnation includes substations. 6. Substation F is located entirely within IBM’s Boulder property, on land that IBM owns in fee, subject to easements with Public Service. Public Service owns and operates certain transformers and related equipment and facilities within Substation F that are directly dedicated to providing electric service to IBM’s Boulder campus. IBM also owns and operates facilities and equipment at Substation F necessary to receive and utilize electricity provided by Public Service via the statewide electric grid. 7. Public Service and IBM also own and operate facilities and equipment at Substation F used to interconnect and supply electric power generated by a solar development located on IBM’s property. The facilities and equipment of Public Service and IBM at Substation F are integrated and intertwined to provide power to IBM’s Boulder campus. While IBM does not have access to the detailed description of property and related rights to be taken at Substation F, even the high-level descriptions in the Petition make clear that the Petition implicates IBM-owned facilities, equipment, contracts and real property rights that will be taken or damaged as a result of Boulder’s Petition for condemnation. The facilities, real property, contractual rights, and other interests involved in this proceeding are also the subject of an ongoing proceeding before the Commission, to which IBM is an intervenor. As directed by the convention adopted in the PUC proceeding to protect highly confidential information. 5 Boulder District Court in 2015, the purpose of that PUC proceeding is to provide “the PUC its constitutional right to investigate and determine how the facilities should be assigned, divided, or jointly used to protect the system’s effectiveness, reliability and safety, as well as any other matter affecting the public interest.” See City of Boulder v. Pub. Utils. Comm’n, Case No. 14CV30047, at 12 (Boulder Dist. Ct. Jan. 14, 2015). 8. On September 14, 2017, the PUC issued Decision No. C17-0750,3 wherein Boulder seeks approval of its proposed separation plan, and the real property and facilities it seeks to condemn to form a municipal electric utility. To date, Boulder has not satisfied the Commission’s conditions, obtained Commission approval of assets and real property for transfer, or obtained a Commission finding that Boulder’s proposed separation will protect the system’s effectiveness, reliability, and safety – all of which are constitutionally-grounded prerequisites to Boulder filing this action. Further, on January 25, 2019, Public Service filed a Petition for Declaratory Orders With Regard to the Portion of Commission Decision C17-0750 Concerning Public Service Assets (Real and Personal) Inside Substations with the PUC, which IBM joined and which is still pending before the PUC. The Petition for Declaratory Order seeks clarity confirming that Boulder does not have Commission approval – conditional or otherwise – to proceed with condemning facilities and real property located within the electric substations in Boulder. Notwithstanding the Petition for Declaratory Order, Boulder’s instant Petition makes clear it is seeking to condemn electric substations in Boulder – including Substation F, which 3 Application of the City of Boulder, Colorado for Approval of the Proposed Transfer of Assets from Public Service Company of Colorado and Associated Authorizations and Relief, Decision Granting, In Part and With Conditions, and Denying, In Part and With Conditions, Third Supplemental Verified Application, Proceeding No. 15A-0589E, Decision No. C17-0750 (mailed Sept. 14, 2017). 6 serves IBM. See, e.g., Petition paragraph No. 24(C), referencing Boulder Amended Exhibit 3, ¶ 26. Needless to say, the instant proceeding is inescapably related to the ongoing PUC proceeding. Accordingly, it is necessary and appropriate that IBM be granted intervenor status in this proceeding, to ensure its ability to fully protect and defend its interests. CROSS PETITION / INTERVENTION AUTHORITY 9. As the Colorado Supreme Court has made plain, “eminent domain proceedings are special statutory proceedings and are to be conducted strictly according to the procedures set out in the eminent domain statute ....” Ossman v. Mountain States Telephone and Telegraph, 520 P.2d 738, 742 (Colo. 1974). Moreover, the constitutional protection against the taking of private property by government without due process imposes on the condemning governmental entity a requirement of strict compliance with and interpretation of the pertinent condemnation statutes. … Thus, while eminent domain statutes are strictly construed against the government, they must be liberally construed in favor of property owners. Platte River Power Authority v. Nelson, 775 P.2d 82, 83 (Colo. App. 1989). 10. Pursuant to ¶ 8 of the Petition, Petitioner is proceeding in this action under C.R.S. § 38-1-101 et seq., which contains Colorado’s primary eminent domain procedure. C.R.S. § 38-1-109 provides in part: Any person not made a party to such 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. The rights of such person shall thereupon be fully considered and determined. 7 11. The language of C.R.S. § 38-1-109 is consistent with Article II, Section 14 of the Colorado Constitution, which states in part: “Private property shall not be taken or damaged, for public or private use, without just compensation.”4 12. In keeping with the forgoing, “[i]ntervention has been refused in eminent domain proceedings only where the intervener has no interest in the property.” Board of County Commissioners of Weld v. Anderson, 525 P.2d 478, 480 (Colo. App. 1974), aff’d, Anderson v. Union Pacific Railroad Company, 534 P.2d 1201 (Colo. 1975). 13. Because this is a condemnation action brought pursuant to the special statutory procedures outlined by C.R.S. § 38-1-101et seq., the specific intervention procedure dictated by C.R.S. § 38-1-109 must be followed in this action, as opposed to the general civil case intervention procedure of C.R.C.P. 24. See C.R.C.P. 81(a); see also City of Steamboat Springs v. Johnson, 252 P.3d 1142, 1145 (Colo. App. 2010). IBM’S PROPERTY INTERESTS RELATING TO SUBSTATION F 14. With respect to the Substation F, IBM holds the following property interests and rights: a. IBM is the owner in fee of the property upon which the Substation F is located. While IBM does not have access to the detailed property description attachments accompanying the Petition, it appears from the generic descriptions of that property in the Petition that Boulder may be purporting to condemn the real property, owned by IBM, upon which Substation F is located. 4 COLO. CONST. art. II § 14. 8 b. IBM is the owner in fee of the property required for access to Substation F from the public right-of-way. While IBM does not have access to the detailed property description attachments accompanying the Petition, it appears from the generic descriptions of that property in the Petition that Boulder may be purporting to condemn the property required for access to Substation F from the public right-of-way. c. IBM is a party to “Public Service Company of Colorado Utility Easements” agreement dated December 9, 1991 and recorded in the office of the Boulder County Clerk and Recorder, as amended by the “Amendment to Public Service Company of Colorado Easements” dated May 12, 2011 and recorded March 6, 2017 at Reception No. 03578494 in the office of the Boulder County Clerk and Recorder, in addition to an easement between IBM and Public Service dated June 9, 1966, Reception No. 817540 (together, attached hereto as Exhibit A; the “Public Service Easements”). While IBM does not have access to the detailed property description attachments accompanying the Petition, it appears from the generic descriptions of that property in the Petition that Boulder may be purporting to condemn these Public Service Easements, to which IBM is a party and in which IBM has its own property interest. IBM also has reason to believe Boulder is seeking to condemn the Public Service Easements based on filings made with the PUC in related Proceeding No. 15A-0589E. 9 d. IBM and Public Service continue to operate pursuant to the terms of an “Electric Service Agreement” dated April 28, 2009 between IBM and Public Service, by which Public Service provides service to IBM. (attached as Exhibit B hereto; the “ESA”).5 The service Public Service provides to IBM is also subject to Public Service’s PUC-approved Transmission General Electric Tariff, COLO. PUC No. 8 Electric, Third Rev’d Sheet No. 70 (“Schedule TG”). The Schedule TG tariff provisions also create a contract between IBM and Public Service. Pursuant to the ESA and Schedule TG, IBM pays Public Service a Commission-approved monthly Service and Facilities Charge of $98,640.00. i. While IBM does not have access to the detailed property description attachments accompanying the Petition, it appears from the generic descriptions of that property in the Petition that Boulder may be purporting to condemn the ESA, to which IBM is a party and in which IBM therefore has its own property interest, or that Boulder may be damaging these interests in a manner that must be compensated for under the Colorado Constitution and other relevant eminent domain law. ii. While IBM does not have access to the detailed property 5 Exhibits B, C, and D have been redacted as they contain commercially sensitive, trade secret, and proprietary terms and conditions, or information subject to protection under the PUC’s protective order. 10 description attachments accompanying the Petition, it appears from the generic descriptions of that property in the Petition that Boulder may be purporting to condemn the contract for service that exists between IBM and Public Service, pursuant to Schedule TG, to which IBM is a party and in which IBM therefore has its own property interest that may be taken or damaged by Boulder’s condemnation. e. IBM is a party to the “Solar Rewards REC Purchase Contract” dated January 11, 2019 between Public Service, IBM, and DG Colorado Solar, LLC regarding a solar energy development located on IBM’s Boulder campus (attached as Exhibit C hereto; the “REC Contract”). While IBM does not have access to the detailed property description attachments accompanying the Petition, it appears from the generic descriptions of that property in the Petition that Boulder may be purporting to condemn the REC Contract, to which IBM is a party and in which IBM therefore has its own property interest. f. IBM is a party to the “Small Generator Interconnection Agreement” dated February 15, 2019 between Public Service, IBM, and DG Colorado Solar, LLC regarding a solar energy development located on IBM’s Boulder campus (attached as Exhibit D hereto; the “Interconnection Agreement”). While IBM does not have access to the detailed property description attachments accompanying the Petition, it appears from the generic 11 descriptions of that property in the Petition that Boulder may be purporting to condemn the Interconnection Agreement, to which IBM is a party and in which IBM therefore has its own property interest. PETITIONER’S TAKING AND EFFECT ON IBM PROPERTY AND INTERESTS 15. IBM is owner in fee of the property under Substation F. Public Service owns and operates facilities and equipment under the Public Service Easements (Exhibit A). IBM’s property has been taken by Petitioner in this action to the extent that Petitioner’s taking expands the scope of the Public Service Easements, as set forth below. 16. The Public Service Easements provide specific rights to Public Service to use IBM’s property as necessary for operation of Substation F. The Public Service Easements clearly contemplate that IBM and Public Service will be the only parties to these agreements. However, ¶ 39(E) of the Petition states: “At [XXX] Substation [F], Boulder will own the distribution equipment currently owned by Xcel and pay for construction of a new electrical equipment enclosure for Xcel.” This statement in the Petition clearly contemplates that both Petitioner and Public Service will occupy the Public Service Easement areas after the taking. Petitioner will not just replace Public Service as a party to the agreements, but rather both Petitioner and Public Service would become parties to the agreements along with IBM. With the new enclosure being constructed by Petitioner within the area of the Public Service Easements as a result of Petitioner’s project, Petitioner has also expanded the scope of the agreements. As such, the property rights of IBM in the Public Service Easements and in the underlying fee ownership are taken and/or damaged by Petitioner’s taking. 12 17. The ESA (Exhibit B) between IBM and Public Service constitutes the agreement between the parties for electric service to IBM’s Boulder campus through Substation F. This Agreement provided for a major expansion of Substation F to serve IBM’s Boulder campus needs. Pursuant to the Petition, Petitioner would be taking and occupying the position of Public Service with respect to this agreement as ¶ 25(G). of the Petition identifies “Agreements between Xcel and third parties which are necessary to operate the Property or for third parties use of the Property ....” as a part of the property condemned in this action. A critical aspect of the ESA is that “all electric power and energy supplied hereunder and the rates for such service are subject to the jurisdiction, rules and regulations of the Commission.” Exhibit B ¶ 11. The “Commission” referred to in the ESA is the Colorado Public Utilities Commission, or “PUC”, as previously noted. Most importantly, the monthly service and facilities charge for the unique electric service and facilities provided to IBM by Public Service under the ESA are subject to Public Service’s Tariff established and regulated by the PUC. Exhibit B ¶ 7; see also Schedule TG. 18. Upon acquisition in this case of Public Service’s rights and obligations under the ESA, Boulder would assume the position of Public Service under the ESA. However, Petitioner, as a municipal utility to be formed after the condemnation case, will not be required to set its electric service rates in accordance with PUC regulations. Cf. Petition ¶ 66; see also Poudre Valley Rural Electric Association, Inc. v. City of Loveland, 807 P.2d 547 (Colo. 1991). Therefore, Petitioner’s taking of Public Service’s interest in the ESA materially affects IBM’s interest in that agreement, changing the terms of one of the most important provisions of the agreement – PUC regulation and oversight of electric service provided to IBM, including the 13 rates IBM must pay for such electric service. As such, the property rights of IBM in the ESA are taken and/or damaged by Petitioner’s taking. 19. Petitioner’s taking of Public Service’s interest under the ESA also affects another prominent provision of that agreement. The ESA provides for the indemnification of IBM by Public Service as follows: Company shall indemnify and hold harmless Customer from and against any demand, claim, cause of action, judgment and expense, including attorney fees, and all loss or damage, arising from any injury or damage to person or property which occurs as a result of facilities, conditions or events on Company’s side of the points of delivery. Exhibit B ¶ 10. 20. The above-quoted indemnity provision of the ESA establishes no cap or limitation on Public Service’s obligation to indemnify IBM. The liability of Petitioner, as a Colorado home rule municipal government, is controlled and limited by Colorado’s Governmental Immunity Act, C.R.S. § 24-10-101 et seq., and the dollar judgment limitations contained therein. Therefore, upon Petitioner’s taking of Public Service’s interest under the ESA, the above quoted indemnification will be materially impacted, materially affecting IBM’s right under the ESA. Petitioner’s taking of Public Service’s interest in the ESA materially affects IBM’s interest in that agreement, diminishing the effect of one of the most important provisions of the agreement - indemnification. As such, the property rights of IBM in the ESA are taken and/or damaged by Petitioner’s taking. 21. The REC Purchase Contract (Exhibit C) is a three-party contract between IBM, Public Service and solar energy contractor DG Colorado Solar, LLC. Under the REC Contract, 14 Public Service purchases Renewable Energy Credits (“RECs”) from DG Solar generated from the solar facility located on IBM’s property. Pursuant to a Small Generator Interconnection Agreement (Exhibit D), certain facilities were constructed within Substation F to interconnect the solar array to IBM and Public Service’s electric systems. Under the REC Contract and Interconnection Agreement, Public Service is responsible for the design, construction, and installation of facilities located at Substation F and dedicated to the solar array. 22. It is unclear from the Petition whether Petitioner is acquiring Public Service’s interests under the REC Contract and Interconnection Agreement. However, even if Petitioner purports to exempt from the taking Public Service’s interests under these agreements, there will be resulting physical modifications necessary at Substation F to achieve separation. It is probable these physical modifications would materially affect IBM’s interests under these agreements. On the other hand, if Petitioner is acquiring Public Service’s interests under these agreements, IBM’s interests under the agreements is again affected and materially altered. Petitioner may not be legally authorized to purchase RECs under the agreements and the indemnity provisions of the agreements would again be altered by Petitioner’s access to the Governmental Immunity Act. In either event, the property rights of IBM under the REC Contract and Interconnection Agreement are taken and/or damaged by Petitioner’s taking. CONCLUSION 23. As required by C.R.S. § 38-1-109, IBM has set forth that it is an owner or has interests in the property sought to be taken or damaged by Petitioner and has stated the character and extent of such interests. Therefore, IBM is entitled to intervene as a respondent in this condemnation action. 15 24. Because detailed descriptions of the property and interests taken in this action are not available to IBM and are protected from review, intervention by IBM in this case is essential, and particularly warranted, so that IBM is able to discover the exact extent to which Petitioner is taking or damaging its property rights and interests and thereby protect IBM’s right to just compensation. 25. The facilities, real property, contractual rights, and other interests involved in this proceeding are also the subject of PUC Proceeding No. 15A-0589E. The PUC has not authorized Boulder to proceed to condemnation or determined that Boulder’s proposed separation will result in safe, effective, and reliable electric service to IBM. Therefore, IBM’s intervention is further warranted on grounds it is an intervenor in the ongoing and related PUC proceeding. 26. Petitioner has not made the exhibits to the Petition public, making it impossible for IBM to ascertain the true and actual extent of Petitioner’s taking. In the event Petitioner objects to IBM’s intervention in this case and this Court denies IBM’s Cross Petition, IBM requests this Court, at a minimum, allow IBM to file a petition and conduct discovery in this action pursuant to the guidelines of C.R.C.P. 27 to ascertain the true and actual extent of Petitioner’s taking and effect on IBM’s property rights and interests. 27. Finally, in the event of any objections to this Cross Petition, IBM requests a hearing before this Court where IBM could present this Court with evidence of its property rights and interests in the property condemned in this action. 16 WHEREFORE, IBM respectfully requests this Court accept this Cross Petition and allow IBM’s intervention in this condemnation action. IBM further requests that upon this Court’s order allowing IBM’s intervention in this case, IBM be granted leave to answer or otherwise respond to the Petition as allowed under Colorado’s eminent domain statutes and the Colorado Rules of Civil Procedure. In the event of any objection to this Cross Petition, IBM further requests this Court allow discovery as to the property rights and interests condemned in this action and that this Court conduct an evidentiary hearing on IBM’s Cross Petition. Dated this 16th day of August, 2019. Respectfully submitted, /s/ Douglas S. Widlund Douglas S. Widlund, #21042* 7200 South Alton Way, Suite A220 Centennial, CO 80112 Telephone: 303.839.1550 E-mail: doug@butcherwidlund.com Raymond L. Gifford, #21853* Caitlin M. Shields, #41539* Wilkinson Barker Knauer, LLP 1755 Blake Street, Suite 470 Denver, CO 80202 Telephone: 303.626.2350 Fax: 303.626.2351 E-mail: rgifford@wbklaw.com cshields@wbklaw.com Attorneys for Cross Petitioner IBM *Counsel of Record6 6 In accordance with C.R.C.P. 121 § 1-26(7), a printable copy of this document with original signature is maintained by Cross Petitioner’s counsel, and will be made available for inspection by other parties or the Court upon request. CERTIFICATE OF SERVICE I hereby certify that on this 16th day of August, 2019 a true and correct copy of the foregoing Cross Petition of International Business Machines Corporation was electronically filed and served via the Colorado Courts E-filing system (“CCEF”) to the following, in accordance with C.R.C.P. § 1-26(6) and C.R.C.P. § 5(b)(1): Attorneys for Petitioner, City of Boulder: Thomas A. Carr Kathleen E. Haddock Office of the Boulder City Attorney P.O. Box 791 Boulder, CO 80306 carrt@bouldercolorado.gov haddock@bouldercolorado.gov 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 Attorney for Defendant, Paul Weissman, in his Official Capacity as Treasurer of Boulder County Olivia D. Lucas Office of the Boulder County Attorney P.O. Box 471 Boulder, CO 80306 olucas@bouldercounty.com Attorneys for Defendant Public Service Company of Colorado d/b/a Xcel Energy FAEGRE BAKER DANIELS, LLP John R. Sperber Sarah M. Kellner Brandee L. Caswell Matthew Dumont Clark Katharine M. Gray Sean J. Metherell 1144 15th Street, Suite 3400 Denver, Colorado 80202 Attorneys for Intervenor, the Colorado Public Utilities Commission Philip J. Weiser, Attorney General Paul C. Gomez, First Assistant Attorney General Ruth M. Harper, Assistant Attorney General 1300 Broadway, 6th Floor Denver, CO 80203 paul.gomez@coag.gov ruth.harper@coag.gov WIDLUND LAW, L.L.C. /s/ Douglas S. Widlund Douglas S. Widlund oq c?f. .L. ' flllfr b?.e i ..JUH.*9J301- E:X-?54SI 't ti DoG@Et 9:10 A . 'al --!'lhtt--0!i,cr,lr I. !,i[rrx?, ili.llr;sr- 2-lrgnrmdin I.4jql tffilll f,ac$Ion ie Ic, Orr, tGIJa dloa-3atro = LOE.E?ii q Ebo EEHRc{ 6 a art B Ta arogzlro.E88g B E AsgE G' 2Iu, E!.XOErd,oSp z*Hzo&r{oIAHI'b5l{{AZ rc. 73347 $1.00 EASFMEUT RECEIVED OF PUBLIC SERVICE COMPAM OF COLOMDO One and no/100 Dollars, ia consideration of which the under- signed landowner hereby grants unto said Company, its successors and assigns, the right, privilege and authority to construct, operate and maintain its electric transmission, distribution and service f.ines, whether said lines now or may hereafter serve the property herein described or other property, withall poles, cross arms, cables, wires, guys, supports, fixtures and devices, used or useful in the operation of said 1ine, through and along a course rs said line may be hereafter con- structed in, _through, over or acrossi.Qection 2, Township I North, Range 70 trIestr'i of the Sixth Principal Meridian in the County of eoul-der., Stafe' of Col,orado, which right of way is more par- ticularLy described as follows : Easements five (5.0) feet in width, two and five tenths (2.5) feet lying on each side of and irmne - diatel"y adjacent to the folLowing described center- line : Beginning at a point two and five t,enths (2.5) feet north of the E. L/4 corner of Section 2, T1N, R70W; rhence (S. 89054r30" W) and paraJ.Le1 with the Southline of the N. L/2 of said Section 2 to the South- eastserly right of way line of the Colorado and Southern Railroad. A1so, beginning at a point two andfive tenths (2.5) feet South of the W. 1/4 corner of said Section 21 thence (N. 89o54t30" E) and parallel with the North Line of the S. L/2 of said Section 2 to tshe Northwesterly right of way line of Go-Iotsad-q $.tate Highway-Nq. r1-9_. Excepting that portion of the above-described easements dedicated as public roads. Together with the right to enter upon said premises, survey, construct, reconstruct, maintain, oPerate, control- and use said lines and to remove objects inLerfering therewith, and the right to permit the attacfurent of wires of any other Company. The grantor reserves the right to cultivater use and occupy said premises for any purpose consistent with the rights and privileges above granted and which wil"l not interfere with or endanger any of the granteets facilities therein or use thereof. In casd of the permanent abandonment of said right of way, all right, privilege and interest herein granted sha11 end, cease and determine. Grantor reserves the right to require said Company to relocate said right of way and lines across other property of the Grantor in said Section 2 or to require said Company to reconstrucL and maintain its lines solely underground, Grantor shalL give said C ompany reasonable notice and opportunity to make any requested rel"ocation or underground reconstruction, and Grantor sha11 be solely responsible for the cost thereof. PBga I o! 2 EXHIBIT A 7fr .t l ilr,l5 -2- The rvork of install-ing said l-lnes shal-i- be done r,rith care, and al-1 damage to the premises caused thereby shall be repaired at the expense of the Company. This grant is subject to existing mineraL leases, ditches and other easemeots covering any part of the above described land. Signed this 2qth day of Nlay, L966, ..,/ IMERNATIONAL BUSINESS MACHINES CORPORATION By ,{l a Aaa,S t,tt ReaI Estate and ConsL.rW)tto$ )ivLEjc,nLanoonTler STATE OF NEI'I YORK ss. J:81 .l "ril-I -. -i#:[Hs4# ) ) COU111y gp WESTCHtrSTER; this as C orporat ion. The 25th da foregoing iri s trument. was acknowledged before me of , L966, by B. H. Askew of International Busi.ness Machines Witness my hand and official sea1. My conrnission expires )n r"AUU t?6{ F-': - -',^rruri Irloiorv P-r, ' nl-w York- N".6"-bq611aS Oucliliod in Wc:tr,., ' "i-ty-'froo^.9*9ues Morch 30, ls,r8 Ma Notary Public '.:1 ,.': 'li ,,,1.:. ,,. ,- ~ ~ --) 1:c0111'>2371 01 /03/~2 11 • 06 AM ~L ESTATE ~ECOR~S '709 CHARLOTTE HOUSTON BOULDER,CNTY CO RECORDER PUBLIC SERVICE COMPANY OF COLORADO UTILITY EASEMENTS J , 2 J J 7 J u MllV 1992 The undersigned Granter hereby acknowledges receipt of $340,000.00 from PUBLIC SERVICE COMPANY OF COLORADO, 550-15th Street, Denver, Colorado 80202-4205, Grantee, in consideration of which Granter hereby grants unto Grantee, its successors and assigns easements to construct, operate, maintain, repair and replace utility facilities and all fixtures and devices, used or useful in the operation of said facilities on, through, over, under and across the IBM PUD in the North½ of Section 2, Township l North, Range 70 West, of the 6th Principal Meridian in the City of Boulder, county of Boulder, State of Colorado, to wit: I. SUBSTATION EASEMENT An easement for exclusive possession of the following described parcel of land to wit: A parcel of land situated in the NW¼ of Section 2, Township 1 North, Range 70 West of the 6th P.M., Boulder County, Colorado with bearings based upon the west line of said NW¼ as being s.00°01'54•E., from a found 2½• braes monument at the NW corner of said Section 2 to a found 2½• aluminum monument at the W¼ of said section 2, the said parcel of land being described as follows: Commencing at the said NW corner of section 2; thence S.37°41'58'E., 1569.17 feet to the TRUE POINT OF BEGINNING; thence N.90°00'00•E., 330.00 feet; thence S.00°00'00•w., 332.00 feet; f thence N.90°00'00•w., 330.00 feet; thence N.00°00'00'E., 332.00 feet to the True Point of Beginning. Containing 109,560 square feet or 2.515 acres more or less. For the purposes of constructing, operating, maintaining, repairing and replacing an electric substation together with all fixtures and devices used or useful in the operation of said substation including, but not limited to, the right to fence the perimeter of said easement and establish security gates thereon. II. ACCESS ROAD EASEMENT The right to nonexclusive use of the following roads within the IBM PUD for access to and from its utilities facilities within said PUD, to wit: Drive. IBM Park Road, West Loop Road, Loop Road, East Loop Road and IBM Also, the right to survey, construct, repair, reconstruct, improve and maintain an access road from Loop Road to the Substation Easement above described over and across the following described property to wit: A parcel of land situated in the N½ of section 2, Township 1 North, Range 70 West of the 6th P.M., Boulder County, Colorado with bearings based upon the west line of said N½ as being S.00°01'54'E., from a found 2½ inch brass monument at the northwest corner of said Section 2 to a found 2½ inch aluminum monument at the west quarter corner of said Section 2, the said parcel of land being described as follows: Commencing at the NW Corner of said Section 2; thence s.37°41'58'E., 1569.17 feet; thence N.90°00'00'E., 330.00 feet; thence S.00°00'00'W., 33.26 feet to the TRUE POINT OF BEGINNING; thence S.79°49'02'E., 56.11 feet to a point of curvature; thence northeasterly 13.11 feet along the arc of gaid curve to the left, having a radius of 25.00 feet and a central angle of 98°48'13•, to a point of tangency; thence N.01°22'44•E., 24.93 feet; thence s.88°37'16•E., 20.00 feet; thence s.01°22'44•w., 67.32 feet; thence s.05°38'47•w., 223.48 feet; thence N.84°21'13•w., 20.00 feet to a point of curvature; thence deflecting to the right 90°00•00•, northwesterly 41.73 feet along the arc of said curve to the left, having a radius of 25.00 feet and a central angle of 95°38'47•, to a point of tangency; thence s.90°00'00•w., 36.84 feet; thence N.00°00'00•E., 20.00 feet; thence N.90°00'00•E., 43.76 feet to a point of curvature; 1 .... EXHIBIT A thence northeasterly 36,81 feet along the arc of said curve to the left, having a r.adius of . 25.00 )fe,t ynd')a \"entral angle of 84°21' 13", to !' pqint of,)tal)Pe'lc;;y; · thence N,05°38'47-"'E,/ 12?.60 feet to a point or curvature; thence northwesterly 37.29 feet along the arc of said curve to the left, having a radius of 25.00 feet and a central angle of 85°27'49•, to a point of tangency; thence N.79°49'02"W., 61,11 feet; thence N.00°00'00"E., 20,32 feet to the TRUE POINT OF BEGINNING. Containing 9,400 square feet or 0.215 acres more or less, III, UNDERGROUND DISTRIBUTION LINE EASEMENTS Easements for electric distribution lines and communication signals on, across and under the following described premises located in the IBM POD, to wit: PARCEL A A parcel of land situated in the N½ of Section 2, Township 1 North, Range 70 West of the 6th P.M., Boulder County, Colorado with bearings based upon the west line of said N½ as being s.00°01' 54"E., from a found 2½ inch brass monument at the northwest corner of said Section 2 to a found 2½ inch aluminum monument at the west quarter corner of said Section 2, the said parcel of land being described as follows: Beginning at a point from whence the NW Corner of said Section 2 lies N.39°20'07"W., 2034,49 feet; thence s.oo•oo•oo•w., 1041.49 feet to the centerline of an existing east- west overhead power line; thence S.89°55'20"W., along said east-west power line 30.00 feet; thence N.00°00'00"E,, 1041,53 feet; thence N.90°00'00"E., 30.00 feet to the point of beginning. Parcel A contains 31,200 square feet, 0.717 acres more or less. PARCEL B A parcel of land situated in the N½ of Section 2, Township 1 North, Range 70 west of the 6th P.M., Boulder County, Colorado with bearings based upon the west line of said N½ as being S.00°01'54"E., from a found 2½ inch brass monument as at the northwest corner of said Section 2 to a found 2½ inch aluminum monument at the west quarter corner of said Section 2, the said parcel of land being described as follows: Beginning at a point from whence the NW corner of said Section 2 lies N.37°41'58"W., 1,569.17 feet; thence S.00°00'00"W., 50.00 feet; thence N,90°00'00"W., 958.86 feet to the west line of said N½ of section 2; thence N.00°01'54"W., along the west line of said N½ 50.00 feet; thence S.90°00'00"E., 958.89 feet to the Point of Beginning, EXCEPT that portion lying in North 63rd Street, (a.k.a. County Road No. 39) assumed to be 30.00 feet in width. Parcel B contains 46,400 square feet, 1.066 acres more or less. Together with full right and authority to Grantee, its successors, licensees, lessees, contractors or assigns and its and their agents and employees to enter at all times upon said premises to survey, construct, repair, remove, replace, reconstruct, patrol, inspect, improve, enlarge and maintain underground electric distribution and communication facilities including conduits, wires, conductors, manholes, transformers and other fixtures, devices and appurtenances used or useful in connection therewith and the full right and authority to cut, remove, trim or otherwise control all trees, brush or other growth on or over hanging said premises.. M',o, building str,...!.ctur~s, eignRr trees or wells shall be erected, placed or permitted to remain on, under or over said premises. No other objects shall be erected, placed or permitted to remain on, under or over said premises which will or may be an interference with the facilities constructed under said premises or in interference with the exercise of any rights herein granted. The grade within the premises shall not be altered by more than two feet (2') of fill from the existing grade nor shall any cuts be allowed from the existing grade. 2 ·~ . . IV. UNDERGROUND TRANSMISSION LINE EASEMENT . , ,1 , ; d I 7 .; :! An easement for the eleotri-b tt"ans~is'sion lin.es and communication signals on, across and under the following described premises located in the IBM PUD, to wit: PARCEL C A parcel of land situated in the N½ of Section 2, Township 1 North, Range 70 West of the 6th P.M., Boulder County, Colorado with bearings based upon the west line of said N½ as being S.00°01'54"E., from a found 2½ inch brass monument at the NW Corner of said Section 2 to a found 2½ inch aluminum monument at the west quarter corner of said Section 2, the said parcel of land being described as follows: Beginning at a point from whence the NW corner of said Section 2 lies N.40°15'49•w., 1995·.30 feet; thence N.90°00'00"E., 4.02 feet; thence along a curve to the left having a radius of 80.00 feet, a central angle of 86°36'32• a distance of 120.93 feet; thence N,03°23'28"E,, 100.43 feet; thence along a curve to the right having a radius of 120.00 feet, a central angle of 86°49'35" a distance of 181.85 feet; thence S.89°46'57"E., 1248.30' to Point #3, said point being on the northwest right-of-way of Colorado State Highway 119; thence S.40°17'3l•w., along said right-of-way a distance of 65.34 feet; thence N.89°46'57•w., 1206.23 feet; thence along a curve to the left having a radius of 70.00 feet, a central angle of 86°49'35• a distance of 106.08 feet; thence s.03°23'28•w., 100.43 feet; thence along a curve to the right having a radius of 130.00 feet, a central angle of 86°36'32• a distance of 196.51 feet; thence s.90°oo•oo•w., 4.02 feet; thence N.00°00'00•W., 50,00 feet to the Point of Beginning. Parcel C contains 81,700 square feet, 1.876 acres more or less. PARCEL D A parcel of land situated in the N½ of Section 2, Township l North, Range 70 West of the 6th P.M., Boulder County, Colorado with bearings based upon the west line of said N½ as being s. 00°01' 54 •E. , from a found 2½ inch brass monument at the NW Corner of said section 2 to a found 2½ inch aluminum monument at the west quarter corner of said Section 2, the said parcel of land being described as follows: Beginning at a point from whence the NW Corner of said Section 2 lies N,69°22'22"W., 3522.62 feet, said point being on the southeast right-of-way of Colorado State Highway 119; thence s.89°46'57•E., 1884.80 feet; thence along a curve to the right having a radius of 120.00 feet, a central angle of 62°51'22• a distance of 131.65 feet to the east line of the said N½; thence S.00°31'03•w., along said east line 55.31 feet; thence N,89°28'57•W., 36.50 feet; thence deflecting to the right 90°00'00• along a curve to the left having a radius of 70. 00 feet, a central angle of 90° 18 • oo • a distance of 110,32; thence N.89°46'57•w., 1926.87 feet to the southeast right-of-way of Colorado State Highway 119; thence N .40°17 '31 •E., along said right-of-way 65. 34 feet to the Point of Beginning, EXCEPT that portion lying in North 71st Street, (a.k.a. County Road No. 33) assumed to be 30.00 feet in width. Parcel D contains 100,000 square feet, 2.298 acres more or less. Together with full right and authority to Grantee, its successors, licensees, contractors and assigns and their agents and employees to enter at all times upon the premises to survey, construct, repair, remove, replace, reconstruct, patrol, inspect, improve at large and maintain underground electric transmission and communication facilities including conduits, wires, conductors, manholes, transformers and other fixtures and appurtenances used or useful in connection therewith and the full right and authority to cut, remove, trim or otherwise control all trees, brush and other growth on or over anything on said premises. No building, structure, signs, trees or wells shall be erected in place or permitted on, under or over said premises. No other object shall be erected, placed or permitted to remain on, under or over said premises which will or may be an interference with the facilities constructed under said premises or an interference with the exercise of any rights herein granted. 3 ' • The grade within (2') of fill from the existing grade • the premises shall not be existing gra~e ~or sh&,ll altered by more than f1Y "fut' b~ allowed two feet from the . j,,,J,,·J I -"" . ~ V. GENERAL TERMS A. The Access Road Easements, Underground Transmission Line Easement and Underground Distribution Line Easements are nonexclusive and Granter retains the right to utilize the premise for all purposes consistent with the rights herein granted and which will not interfere with the Grantee's exercise thereof. B. Grantee shall exercise the rights herein granted with due care and all damage to the premises occurring hereunder resulting from the failure to exercise due care shall be paid for or.repaired at the expense of Grantee. c, Grantee shall indemnify, save and hold harmless Granter from any liability to third parties resulting from or arising out of Grantee's use of the easements herein granted provided this indemnification shall not apply to negligent acts of Granter, its employees or agents. D, Non-use or a limited use of the easements shall not prevent Grantee from thereafter making use of the easements to the full extent herein authorized. E. If Grantee abandons the easements herein granted the easements shall terminate and be of no further force and effect. Grantee shall at such time quit claim to Granter all of its record interest in said easements. Signed and delivered this _'1.._.,,_-/:"""J, ___ day of f>ECEmBU , 1991. INTERNATIONAL BUSINESS MACHINES CORPORATION ,)/~· By:,~ O"'v_i,...c-e--'+-;--s-i_d...,.f-,'lf---------- ATTEST: By: STATE OF J./£{J) '/4J(!K_ ) ~ )es COUNTY oF ~srcu£.szU--: > n ~~ foregoing instrument was acknowledged before me this C/ti, day u~/!}fg,e__, 1991 by .,;JoHN .:r: H/6-6-1/t/S as Vice President In\er,~tl~~l Business Machines Corporation, a corporation. ,.*· ,., ' ( '· 'I, . . Wit116, .... my hand and official seal. ALMA w. FEIN _. ' 0 r ·' · ~ ·. :; Notary Public, S1at2 o! ".tew Yo~ o :· \ · ., .. ·~t: ~~ion Expires: o~;;~:~~~1:~;.~;~-1jf1i:J 93 ".,.: "r,,, .--<~! /7. r. -( . J r -~-~ ~ \T~ , I ii ,// ~ Public , STATE OF ,//~i 1, /_ )SB COUNTY OF "C./'"= .,..e====::...,.-=.."') ...,., Thefo ~:9oing instrument was acknowle9g vµ.e,~ , 1991 by ~ • Secretary of International Business Machines Co before me this 9'-d-day as - ration, a corporation • . ,, "'""•W,1.tness my hand and official seal. '\ \ s ( ,,,,, ,,· ,\\ .... :.M{a;;ol!1ffliBBion Expires: ____________ _ ;: r..;_.•· 1·"1,-\\1\\ : {>:: i \\ 0 hf(}"•·. ,· .. , ~ ) -) * <·· '" : ''l : I -, \ \V .'ct },f, •-_:_r,--' .,I" , .'_) .... :::-"?:: 4 _)'"1,t q,~ GJ" of of of DIVISION LOCATION IBM Eaat Loop Rood. Boulder, CO 03578494 RF: $53.00 03/06/2017 10:03 AM DF: $0.00 Page: 1 of 9 Electronically recorded in Boulder County Colorado. Recorded as received. ROW AGENT J. Monn••• DESCRIPTION AUTHOR Roger 0. N•lson, Pl$ AUTHOR ADDRESS Monte• & Company, 2,eso SOuth Peoria Stroot, Auro,a, CO80014-5472 DOC. NO. 193396 PLAT/GRID NO. WO/JO/GREG NO. LPM No: 185004 AMENDMENT TO PUBLIC SERVICE COMPANY OF COLORAOO EASEMENTS THAT INTERNATIONAL BUSINESS MACHINES CORPORATION. a corporation herelnafler called the -orantpr~ for good and valuable consideration the receipt and adequacy of which is acknowledged. hereby grants. bargains. sells. conveys and confirms to PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation, with an address of 1800 Larimer Street. Suite 400. Denver, Colorado 80202, (the -!W!!!!£!f), its successors and assigns, this amendment (" Amendment") lo the Utilily Easements between Granlor and Grantee dated 9'" day of December 1991 and recorded on January 3, 1992 i oftico of tho Clerk and Recorder for the County of Boulder, State of Colorado al Re 01152371 ("Utility Easements") for lhe rights and purposes set forth lherefn ne venient to Grantee in the use ot said facilities and equipment. The ·substation Easement'" as describe this Amendment to encumber that Parcel 1 attached hereto and ction I of the Utiijty Easements is expanded by of land situated. and described in Exhibit A. by this reference. The "Access Road Easeme lhls Amendment. He Plant Road as des nbed In Section II of the Utility Easements Is terminated by to the Substation Easement parcel will be made from IBM B, Parcol 2 any above ground 1mprovemenL, on the easternmost 41' of the described In Exhibit A wtth the excepUon of the substation boundary Referen to that certain Grant of Conservation Easement (Oiagaonal Frontage Area) dated October 29. 1997. and recorded in tho Boulder County Clerk's office on October 29. 1997 as document no. 1742835, wherein Granto, and lhe City of Boulder ("The City') reached agroornent respecting a conservation easement on the terms and conditions described therein (the '·Conservalion Easement"). Grantor hereby agrees that notwithstanding anything herein or olherwise. the terms and conditions and area of Ule Conservation Easement remain in full force and effect, and nothing herein shall be deemed to alter, modify, or change any of the terms and conditions of the Conservation Easement: Grantor hereby further stipulating that The City retains all rights and benefits as described In tho Conservation Easement. Together with the full right and authorlly to Grantee, its successors, licensees, lessees, contractors or assigns and ils and their agents and employees may enter al al times the premises described in Exhibit A and the area described in Utillty Easement to survey, construct, repair, remove, replace, reconstruct, patrol, inspect, improve, onlargo and maillain underground electric transmission, distribution and communication faciHlies including conduits, wires, conductors, manholes, transformers. and other lixlures, devices and appurtenances used or useful in connection therewith and the full right and authority to cul, remove, trim or otherwise control all lrees, brush or other growth on or over hanging said p,emises. No other objects shall be erected, placed or permitted to remain on, under, over said premises which will or may be an interference with the facilities constructed on and under said premises or In Interference with the exercise of any rights herein granted. Boulder County, CO 03578494 It Is furlher acknowledged that the City of Boulder has furnished to Grantor the signed consent letter substantially in Iha form of Exhibit C allached hereto. Except as specifically modified by this Amendment. all terms and condilions of lhe Utility Easements shall remain in full force and effect. TO HAVE AND TO HOLD all and singular the rights, easements, and privileges aforesaid unto the said Grantee, Its successors and assigns, fore\ler. l ..... WITNESS THE EXECUTION HEREOF THIS _ _,_..,v,:___ DAY OF MAY. 2011. ) )ss. ) fL. ledged. before me lhis /1,~,f'f.Off/tjy. ~O~ • "------•• Sk/fLI(.... !:~l'd!!tt!f.. ~ s Corporahon, a corporation. I VAlflll WASHINGJON Horo, OFFICIAL !EAL My J'Ubl1e, S10,.o,1111no,, Aomm1suon hpi,es ugusr 12, 201,. 2 of 9 Boulder County, co 03578494 GRANTEE: Grantee: PUBLIC SERVICE COMPANY OF COLORADO The foregoing ~rument was acknowled 2011 by .-(f:,',,/4 --::2 1 ,e ___ ... .'/'--for Public Service Com Witness my hand and official My commission expires: , -C: ,; i E\IVJ::i, LEGAL ~ 3 of 9 Boulder County, CO ••• MERRICK® •-•-------••• & COMPANY 03578494 EXHIBIT "A" Merrick & Company 2450 S. Peoria St./ Aurora, CO 80014 303ll51-0741 / Fax 303/751-2581 Job No,: 02016325-67 File: ,.\Property Descriptions\ SUBSTATION EXPANSION-R2.doc Date: March 25, 201 O Rev. 1: January 14, 2011 Rev. 2: January 20, 2011 PROPERTY DESCRIPTION Revised Substation Addition A portion of the Northwest Quarter of Section 2, Township I North, Range 70 West of the 6'' Principal Meridian, County of Boulder, State of Colorado, being more particularly described as follows: COMMENCING at the Northwest corner of ion 2, whence the West Quarter corner of said eet to the Northwest corner of a parcel of land Section 2 bears S00° 18' 15"E a distance THENCE S37°58' 19"E a distance of 15 recorded January 3, 1992 on Film N 09 at Reception No. 1152371 in the Boulder County Clerk and Recorder's Office; THENCE N89°43'39"E along Film No. 1709 at Recepti distance of 330.00 feet BEGINNING; erly line of said parcel of land recorded January 3, 1992 on 52371 in the Boulder County Clerk and Recorder's Office a theast corner of said parcel of land, also being the POINT OF along the prolongation of the northerly line of said parcel of land recorded January 3, I Im No. 1709 at Reception No. 1152371 in the Boulder County Clerk and Recorder's O a distance of 157.30 feet; THENCE S00° 16'21 "E along a line being 157.30 feet easterly of and parallel with the easterly line of said parcel of land recorded January 3, 1992 on Film No. 1709 at Reception No. I 152371 in the Boulder County Clerk and Recorder's Office a distance of 332.00 feet; THENCE S89°43'39"W along the prolongation of the southerly line of said parcel of land recorded January 3, 1992 on Film No. 1709 at Reception No. 1152371 in the Boulder County Clerk and Recorder's Office a distance of 157.30 feet; THENCE N00° 16'21 "W along said easterly line of that parcel of land recorded January 3, 1992 on Film No. 1709 at Reception No. l 152371 in the Boulder County Clerk and Record::;e<r';!;s~~: distance of 332.00 feet to the POINT OF BEGINNING. Containing 1.199 Acres, more or less. 1 of 3 An Employee-Owned Company For and on Behalf of Merrick & Company 4 of9 Boulder County, CO POINT OF COMMENCEMENT NW COR. SEC. 2, 03578494 TIN, R7DW, 6TH P.M. FNO. ILLEGIBLE 2 I /2" ALUM. CAP IN RANGE BOX, NW 1/4 SECTION 2 TIN, R70W, 6TH P.M. 0. 6' BELOW ASPHALT SURF ACE, PARCEL 2 502 SQ. FT. + /- SEE SHT 2 OF 2 NW COR. OF REC. NO. 1152371 / IBM PLANT R~ N89' 43' 39"E 330.00 N'L Y LINE OF REC. NO. 1752371 N89'4J'39'E 15 . ,20. 'I, I I' 1-..__/.::::__ ; I I / ---1 _1 I / ,=' 7------SET 24" #5 REBAR W/ 1-1 /2" A!,\JM. CAe,, STAMPED"MERRICK & POINT OF BEGINNING (PARCEL 1) NE COR. OF ~ -I; I --Iii > I --,--.... PARC£.!/\ I 1 / (o, LS 332D0' REC. NO. 1152371 FNO. #5 REBAR W/ 1-1/2" ALUM. CAP, FLUSH W/ GROUND, STAMPED "13212, LAMBERT' W/ CAST IRON COVER STAMPED "STOCKHAM USA' 1.199' I+/+-1 I I I I I r-__1 I I ( I • I I'.:,; I I I I t3 / -I I I lalwJ/;;:;/ I z Nm I I I il:::i_j~, I I ja~"':7 I I I -aco_ I V)<IZ I I IZ~Q_ ·'-'I '='::e 1uw I I I ~ 1li"' I I ii ~ I I j 1'i--J I I I / I I __ j ___ / I I 1 1 8 / I I :al ; I I / S'LY LINE OF --r--....✓/ I 1 / REC. NO. 1152371 , v ~---'---.,..__,..'-',---+ 157.30'-'---___, FOUND f5 REBAR W / - 1-1 /2" ALUM. CAP, STAMPED "PLS 13212, LAMBERT' FLUSH W/ GROUND I< BENT TO WEST / l _ _l I I / / / / / CONSERVATION- ESMT. REC. NO. 1742835 REC. 10-29-1997 SET 24" #5 REBAR W/ 1-1/2" ALUM. CAP, STAMPED "MERRICK I< CO, LS 33200" LL--1\,--¼--=---===:-:=~'---f--~ J, 1 ----------589'43'39'W-157 . .JO'-~ ~W 1/4. COR. SEC. 2 __ __:,,_-..__--?)'U' 'i' 'r 11 N, R70W, 6TH PM ~I;;;;;;);;;;!,~~=~,~~~=!, FND. ILLEGIBLE 2 1/2" ALUM. CAP IN RANGE 1 -" • '°' 0.8' BELOW ASPHALT SURFACE. NOTE CUINl' FIIO.ltl"' ffl71~UOYEO nv 8.'fDY ~2.10' WEST REV. t 18 2011 -AD0£D ACCeiS ~ JBJ Dm J/25/:2010 SCllE 1" ,. SO' •oo MERRICK" B~B & COMPANY 2450 Soulh Ptorio, 1ucro, CO 80014 This el<hib:t does not represent a rronumented survey. It is intended only to depict the ottoched description. A PORTION OF THE NW 1/4 or SEC. 2 T1 N, R70W, 6TH P.M. COUNTY OF BOULDER, STATE OF COLORADO 111\e REVISED SUBSTATION ADDITION -NO, 1 Of 2 5 of 9 Boulder County, CO ••• MERRICK" •@• ••• & COMPANY 03578494 EXHIBIT"B" PARCEL2 Merrick & Company 2450 S. Peoria St./ Aurora, CO 80014 303/751-0741 / Fax 303/751-2581 COMMENCING at the Northwest corner of said Section 2, whence the West Quarter comer of said Section 2 bears S00° 18' 15"E a distance of 2612.66 feet: THENCE S37°58' 19"E a distance of 1569.17 feet to the Northwest comer of a parcel of land recorded January 3, 1992 on Film No. 1709 at Reception No. I 152371 in the Boulder County Clerk and Recorder's Office; THENCE N89°43'39"E non-tangent with the following described curve along the northerly line and the prolongation thereof of said parcel of land recorded January 3, 1992 on Film No. 1709 at Reception No. 1152371 in the Boulder County Clerk and Recorder's Office a distance of 468.92 feet to the POINT OF BEGINNING; THENCE along the arc of a curve to the left, having a central angle of 39° 11 '5 l ", a radius of 9.80 feet, a chord bearing N67°05'34"W a distance of 6.58 feet an arc distance of 6.71 feet; THENCE tangent with the last described curve a •gent with the following described curve along the arc of a curve to the right, having a c e of03°34' I 5", a radius of 537. 79 feet, a chord bearing N84°54'22"W a distance o and an arc distance of 33.52 feet; THENCE the following three course and Development Agreement reco (\/1, southerly line of IBM Plant Road as shown on PUD ober 29, 1997 at Reception Number 1742820 in the Boulder County Clerk and R ce: 1) Non-tangent with 04°21'50", a r 2) 3) ve along the arc of a curve to the left, having a central angle of l feet, a chord bearing S89°53'39"E a distance of 16.58 feet, and feet; "E non-tangent with the last described curve a distance of3 l.62 feet; '54"E a distance _of 42.52 feet; THENCE SO "E non-tangent with the following described curve a distance of 2.63 feet; THENCE along the arc of a curve to the left, having a central angle of 45°00'00", a radius of 27.33 feet, a chord bearing S67°13'39"W a distance of20.92 feet, and an arc distance of21.47 feet; THENCE S44°43'39"W tangent with the last and following described curves a distance of 17.82 feet; THENCE along the arc of a curve to the left, having a central angle of 03°03'54", a radius of 27.33 feet, a chord bearing S43° I 1'42"W a distance of 1.46 feet, and an arc distance of 1.46 feet; THENCE N00° 16'21 "W non-tangent with the last described curve and along a line being 157.30 feet easterly of and parallel with the easterly line of said parcel of land recorded January 3, 1992 on Film No. 1709 at Reception No. I 152371 in the Boulder County Clerk and Recorder's Office a distance of 19.20 feet; 2 of 3 An Employee-Owned Company For and on Behalf of Merrick & Company 6 of 9 Boulder County, CO ••• MERRICK® •®• ••• & COMPANY 03578494 Merrick & Company 2450 S. Peoria St./ Aurora, CO 80014 3031751-0741 I Fax 3031751-2581 THENCE S89°43'39"W along said prolongation of the northerly line of that parcel of land recorded January 3, 1992 on Film No. 1709 at Reception No. I 152371 in the Boulder County Clerk and Recorder's Office a distance of 18.38 feet to the POINT OF BEGINNING. For and on Behalf of Merrick & Company 3 of 3 An Employee-Owned Company 7 of 9 Boulder County, CO 1 11 I I I I POINT OF COMMENCEMENT NW COR. SEC. 2, TlN, R70W, 6TH P.M. FNO. ILLEGIBLE 2 1/2" ALUM. CAP IN RANGE BOX, 0.6' BELOW ASPHALT SURFACE. t S'L Y LINE OF IBM PLANT ROAO \u, AS SHOWN ON I ~I':; PUO DEVELOPMENT AGREEMENT I \!i 1g; REC. 10/29/1997 ::'.;\;;; REC. NO. 1742820 ·1r< 03578494 NW 1/4 SECTION 2 TIN, R70W, 6TH P.M. IBM PLANT ROAD I W COR. OF I REC. NO. 1152371 C3 L1 L2 i'b::--.Jli,----r1\,.... =~-"" -"' -,71.c' ;;,;.'"' "=c-: 7..i:c~;:=~;~~~=~;=:=:;---==::-::::-::='-:_::.::.rt, N89'43 ,19"E 46 .92 / POINf OIF B N'LY LINE OF I (P REC. NO 1152371<---------ps CURVE DELTA C1 39i1'51" C2 03"34'15" C3 04"21°50" C4 45'00'00" C5 03'03'54" ± W 1/4 COR. SEC. 2 T1 N, R70W, 6TH P .M. DISTANCE 31.62 42.52' 2.63 17.82' 19.20 18.38' RADIUS 9.80' 537.79' 217.81' 27.33' 27.33' CBEARING CHORD LENGTH N67'05'34"W 6.58' 6.71 NB4'54'22"W 33,51' 33.52' S89"53'39"E 16.58' 16.59' S67i3'39"W 20.92' 21.47 S43i1'42"W 1.46' 1.46' T i rND. ILLEGIBLE 2 1/2" ALU"' CAP IN RANGE 0.8' BELOW ASPHALT SURFACE. I -di• 20ft. NOTE This exhibit does not represent a monumented survey. It is intended only lo depict the attached description. DIWIH J8J (WE J,'25/2010 SCAI.E 1• • 20· ~~~ MERRICK" tJoo & COMPANY 24!0 Solill Peono, A1nto. 00 !!0014 A PORTION OF THE NW 1 / 4 OF SEC, 2 Tl N, R70W, 6TH P.M. COUNTY OF BOULDER, STATE OF COLORADO REVISED SUBSTATION ADDITION '!'f'""' ~ SHEET NO. i:\Slir,ey\02016l2567\0V,,:S\hhi>ils 2 OF 2 8 of 9 Boulder County, CO 03578494 EXHIBIT "C" Open Space and Mountain Parks P.O. Box 791, Boulder, CO 80306, 303-441-3440 \V\vw.ci. boulder.co. us NOTICE OF CONSENT TO INTERNATIONAL BUSINESS MACHINES CORPORATION (IBM) This letter of consent is made in reference to the Conservation Easement dated October 29, 1997 and recorded October 29, 1997 in Boulder County Clerk's office between International Business Machines Corporati for property identified in Exhibit A of the Conse en! no. 17 42835 (the "Conservation Easement"), , as Granter, and the City of Boulder, as Grantee, en! (the "Property"). Section 3.2 of the Conservation Ease identified in this Section with co grant" (the Conservation Easem s Granter the right to convey easements for "improvements" as e City in a written, recorded instrument referring specifically to this This letter shall serve Temporary Easement by the City to allow Granter of the Conservation Easement to convey the manent Easement ("Easements") described herein to Public Service Company of Colorado for the purposes described in the Easements. Please note that the final form of the Easements are attached hereto as Exhibits A and B, respectively. Please note that these Easements are of. the type and activity contemplated by paragraph 3.2 of the Conservation Easement. The signing of this letter shall serve to evidence agreement with and consent to IBM's signing and delivering of the Easements in order to grant the rights as described in each of the Easements to Public Service Company of Colorado, plus the recordation of the Permanent Easement in the public records of Boulder County, Colorado. ~-;~ Michael D. Par(on Director, Open Space and Mountain Parks Date: .5--/ t:· II -1 - 9 of 9 DocumentNo. 1'375613 ELECTRIC SERVICE AGREEMENT THIS AGREEMENT, made and entered into this _28_ day of _April _____ , 2009, by and between PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation, doing business as Xcel Energy, whose mailing address is P.O. Box 840, Denver, CO, 80201-0804, hereinafter referred to as "Company", and INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation, whose mailing address is 6300 Diagonal Highway, Boulder, CO, 80302 herein after referred to as "Customer'\ collectively hereinafter referred to as the "Parties". WITNESSETH: WHEREAS, Company is a public utility engaged in the generation, transmission, distribution and sale of electrical power and energy in various areas in the State of Colorado under the terms, conditions, rates, rules and regulations of the Company's Colorado P.U.C. No. 7 -Electric Tariff ("Tariff'), subject to the jurisdiction of the Public Utilities Commission of the State of Colorado ("Commission"); WHEREAS, Customer operates a data center complex and related facilities located at 6300 Diagonal Highway, Boulder, Colorado 80302 ("IBM Boulder Facility" or sometimes, "Customer Premises"); WHEREAS, Company is now furnishing electric energy and power ("Electric Service") to Customer at the IBM Boulder Facility pursuant to its Tariff and the provisions of a Electric Service Agreement dated May 18, 1989, as amended, which provides for reserved capacity ofup to at the point of delivery, known as the Substation, located at the IBM Boulder Facility; WHEREAS, Company owns and operates certain transmission service facilities on land located at the IBM Boulder Facility, including the Substation, and related power lines and interconnection equipment, all of which are integrated as part of Companfs electrical . ' •·. EXHIBIT B system operations and are necessary to provide network electric service to all of Company's customers ("Company's Network Facilities"); WHEREAS, Company also owns and operates certain transformers and related low-side equipment and metering facilities located at the Station that are directly dedicated to providing Electric Service to the IBM Boulder Facility ("IBM-Dedicated Facilities") from Company's Network Facilities; WHEREAS, in conjunction with the planned expansion of the IBM Boulder Facility, Customer has requested an increase in Electric Service to the IBM Boulder Facility to accommodate a total load of up to in 2011 and up to commencing in 2012; WHEREAS, in order for Company to provide such increased Electric Service to Customer, Company will be required to construct additional transmission service facilities, to install new transformers and other fucilities necessary to expand Company's Substation, and to relocate measurement equipment and constmct appmtenant interconnection facilities at the Substation site (the " Expansion Project"); WHEREAS, Company and Customer desire to replace and supersede the previous Electric Service Agreement dated May 18, 1989, as amended, and enter into this Agreement for the provision of Electric Service; effective on and after the necessary facilities are constructed and made operational by Company, as hereinafter set forth, and WHEREAS, Company and Customer desire to enter into this Agreement to set forth the rates, terms and conditions of the Electric Service that will be provided by Company under this Agreement to the Customer's IBM Boulder Facility at the Company's Substation site effective after the construction of the Expansion Project is completed. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, the Parties agree as follows: I. Cancellation of Previous Agreement. The Electric Service Agreement, dated May 18, 1989, by and between Company and Customer, as amended ("1989 Agreement") , relating to the provision of Electric Service to the IBM Boulder Facility, shall be canceled and 2 superseded upon the "Commencement Date," as defined in Section 9, Term, hereof. As of the Commencement Date, all Electric Service provided by Company under this Agreement shall be at transmission voltage at the Substation site and all Company-owned electric facilities previously used to provide back up reserved service to Customer under the 1989 Agreement that are no longer required to provide Electric Service to Customer under this Agreement, in Company's sole opinion, shall be disconnected by Company at its sole cost and no longer used to provide Electric Service to the IBM Boulder Facility. Notwithstanding the foregoing, pri01· to disconnecting the existing backup distribution feeder lines from the IBM Boulder Facility, Company will have installed, and com1ected to Customer, a second 230 kilovolts (kV) underground transmission line, as depicted in Exhibit A. 2. Specifl(:)ation of Energy Delivered. All Electric Service delivered by Company under this Agreement shall be in the furm of three phase alternating current at a frequency of approximately 60 Hertz and a nominal voltage of230 kV. 3. Service Provided Pursuant to Tariff. Company shall deliver and sell to Customer, and Customer shall receive and purchase from Company during the term hereof, subject to the provisions of this Agreement and the Comp(lny's Tariff, in effect from time to time, all Electric Service as may be required by Customer at the Substation site. All Electric Service provided pursuant to Company's Tariff, as on file with the Commission, shall be subject to the terms, conditions, rates and charges as set forth in the Tariff, as the same may lawfully be changed or modified from time to time. Reference herein to a particular Tariff or schedule on file and in effect with the Commission shall include any successor Tariff or schedule. Upon execution of this Agreement, the Company shall file with the Commission for approval the Tariff sheet as shown on Exhibit B attached hereto, which includes the initial Electric Service and Facility Charge applicable to Customer. 4. Facilities Provided by Customer. Customer shall provide the facilities on the load side of the points of delivery which are necessary to receive and utilize Electric Service under this Agreement, as shown on Exhibit A ("Customer Facilities"), and Company's Tariff on file with the Commission and in effect from time to time. Customer shall operate and maintain the Customer Facilities in a safe and prudent rnallller so as not to present a threat to Company employees, facilities or system, or the public at large. 3 5. Access. Pmsuant to that certain easement agreement between the parties dated December 9, 1991 (the "Easement"), Customer has granted to Company, without cost to Company, certain easements or rights-of-way to access and use specified portions of the Customer Premises which were required and necessary for Company to perfo11n its obligations under the 1989 Agreement. Customer agrees to amend the Easement to grant or dedicate to Company, without cost to Company, any new or additional easements or rights-of-way to access and use additional p01tions of the Customer Premises that may be reasonably required for the GunbaiTel Expansion Project, and for the electric transmission of any other electric service provider required and necessary for Company to perform its obligations under this Agreement. 6. Facilities Provided by Company. Company shall construct all transmission voltage facilities required for Electric Service required hereunder, including, but not limited to, the Expansion Project. Company shall also provide, own, operate, maintain and, as needed, repair and replace all facilities and equipment on the supply side of the points of interconnection as shown on Exhibit A, necessary to deliver and meter Customer's Electric Service requirements under this Agreement, including, but not limited to, Company's Network Facilities and IBM-Dedicated Facilities. Company shall operate and maintain Company's Network Facilities and IBM-Dedicated Facilities in a safe and prudent manner consistent with accepted industry standards so as not to present a threat to Customer employees, facilities or systems, or the public at large. The Company recovers its costs for the IBM-Dedicated Facilities used to provide Electric Service to Customer through the monthly Service and Facility Charge applicable specifically to Customer. The monthly Service and Facility Charge is based upon the Company's estimated installed cost of the facilities, as reflected on Exhibit B. In the event that the IBM-Dedicated Facilities require repair, replacement and/or upgrade due to normal wear or at the request of Customer for additional capacity, the Company shall file a revised monthly Service and Facility Charge based upon the revised total installed cost along with an amendment to this Agreement with a revised Exhibit B to be effective thirty (30) days following the date filed with the Commission subsequent to the completion of the repair, replacement and/or upgrade. 7. Applicable Rates for Electric Service. The monthly Service and Facility Charge applicable to the Electric Service provided to Customer under this Agreement, as reflected in the Exhibit B attached hereto, is based on 4 Company's estimate of the cost of the applicable facilities and shall be recalculated based on actual costs after Company has installed and completed the Expansion Project necessary to serve the IBM Boulder Facility and the actual final cost is known. Such recalculated Service and Facility Charge shall become effective for Electric Service hereunder thirty (30) days following the date the Company files the revised Exhibit A reflecting the recalculated monthly Service and Facility Charge with the Commission. All Electric Service delivered by Company to Customer shall be received and paid for by Customer at the applicable rates and upon the terms and conditions set fo1th in the Company's Transmission General Service Rate Schedule ("Schedule TG'') in its Tariff on file with the Commission and in effect from time to time, which rates, terms and conditions are subject to modification, amendment or revision upon approval by the Commission. · 8. Metering. Company shall provide, own, operate and maintain its meters and associated equipment, as part of the IBM-Dedicated Facilities, which are necessary to measure and monitor the Electric Service to be provided hereunder to Customer. Meters and equipment necessary to measure and monitor Electric Service shall be located on the high-side voltage facilities that the Company owns, operates, and maintains, as indicated on Exhibit A. 9. Term-Commencement Date. This Agreement will be effective as of the date fully executed by the parties and will remain in effect for an initial term of five (5) years from and after the Commencement Date, as defined below ("Initial Term''), and shall continue in full force and effect in accordance with Company's Tariff, as in effect from time to time. Electric Service and associated billing hereunder shall commence upon the Commencement Date, which shall be the date that (i) all construction related to the Expansion Project has been completed, (ii) the Expansion Project is made operational by Company, and (iii) the Electric Service is first made available by Company to Customer at the Substation site. Company shall furnish Customer written notice setting forth the actual Commencement Date reasonably in advance of such date. Customer shall have the right to extend the term of this Agreement for one (1) additional five (5) year term upon the same terms and conditions stated herein, provided however, that Customer shall have delivered written notice to Company at least one hundred eighty (180) days prior to expiration of the Initial Term of its election to extend the Term. The parties shall thereafter execute a written amendment hereto so extending the Initial Term. 5 10. Liability. Company shall indemnify and hold harmless Customer from and against every demand, claim, cause ofaction,judgment and expense, including attorney fees, and all loss or damage, arising from any injury or damage to person or property which oceurs as a result of facilities, conditions or events on Company's side of the points of delivery. Customer shall indemnify and hold harmless Cumpany from and against every demand, claim, cause of action, judgment and expense, including attorney fees, and all loss and damage, arising from any injury or damage to person or prope1ty which occurs as a result of facilities, conditions or events on the Customer's .side of the points of delivery. Nothing herein shall be construed as relieving or releasing either Patty from liability for injury or damage, wherever occmTing, resulting from its own intentional or negligent acts or the intentional or negligent acts of any of its respective officers, directors, agents or employees, and in the event of concurrent liability, the Parties shall be liable for damages in proportion to their respective negligence. Neither Party hereto shall be responsible for indemnifying the other Patty for any injury or damage, wherever occmTing, due solely to any defect in equipment installed, furnished, operated or maintained by the other Party hereto. 11. Jurisdiction. It is specifically understood and agreed that all electric power and energy supplied hereunder and the rates for such service are subject to the jurisdiction, rules and regulations of the Commission. 12. Notices. Notice to be given hereunder shall be deemed sufficiently given and served when and if deposited in the United States mail, postage prepaid, correctly addressed as follows: Customer: Bonnie Bartlett (IBM Procurement) ~{Y\.. Pt=K ~,,b:5l~D~~~·63 Company: Public Service Company of Colorado P.O, Box840 Denver, CO 80201-0840 13. Billing and Payment. Itemized statements for Electric Service shall be prepared by Company and mailed to Customer and payments shall be made by Customer to Company on the basis of such statements or as set forth in the Company's Tariff; as in effect from time to 6 time. Any amounts not paid on or before the due date of the bill shall be subject to late payment and interest charges as set forth in Company's Tariff on file with the Commission and in effect from time to time. 14. A_ssignment -Consent. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the respective Parties hereto, provided that neither party shall assign this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. 15. Default. In the event either Party fails to perform any material obligation of such Party under the tenns of this Agreement, such failure shall constitute a default under this Agreement. Upon the occurrence of a defuult, the non-defaulting Party shall be entitled to terminate this Agreement if such demult is not cured to the reasonable satisfaction of the non- defaulting Party within thirty (30) days after written notice has been provided to the defuulting party. 16. Governing Law. This Agreement is made under, and shall be interpreted and enforced in accordance with, the laws of the State of Colorado. 17. Entire Agreement. This Agreement may not be amended or modified, nor shall any waiver of any provision of this Agreement be effective, except by an instrument in writing, signed by the pruiies hereto. 18. Waiver. Any term or provision of this Agreement may be waived by the Party entitled to the benefit thereof: No waiver of any breach of any one or more of the conditions or covenants of this Agreement by either Party will be deemed to imply or constitute a waiver of a breach of the same condition or covenant in the future or a waiver of a breach of any other condition or covenant of this Agreement. 7 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in their respective names by the proper officers thereunto duly authorized as of the date and year first above written. FCOLORADO Riley Hill Regional Vice President Customer and Community Relations Xcel Energy Services Inc., as agent for Public Service Company of Colorado Date: !) !ti /0°( I t, INTERNATIONAL BUSINESS MACHINES CORPORATION By: ~~ ~-~=~ Bonnie Bartlett Serv. & Gen. Procurement -ISC Utilities Service Date: 6) I fr /05 l I 8 2018_Small.Medium_3rdParty_InterconAgreement A. B. C. D. E. A. B. C. D. E. F. G. H. I. J. Application ID: OID3513344DQG2,' Small Generator Interconnection Agreement This SMALL GENERATOR INTERCONNECTION AGREEMENT (“Agreement”) is entered into by and between Public Service Company of Colorado, d/b/a Xcel Energy, a Colorado corporation, having a mailing address of P.O. Box 840, Denver, Colorado, 80201, hereinafter referred to as “Public Service,” and '* &RORUDGR 6RODU, LLC, having a mailingaddress of  8QLYHUVH%OYG-XQR%HDFK)/and IBM CORP (“Customer”), whose address is 6300DIAGONAL HWY, BOULDER, CO 80301, each of which may be referred to herin as a "Party" or collectively as the “Parties.” WHEREAS, Customer receives retail electric service from Public Service in Colorado at 6300 DIAGONAL HWY, BOULDER, CO 80301 (“Premises”) and is the record beneficial electric service customer owning, leasing, residing at or otherwise conducting business on the Premises; and WHEREAS, Developer owns, operates or otherwise controls the Generation System located on the Premises for the benefit of Customer. In consideration of the premises and of the mutual covenants and agreements hereinafter set forth, the Parties agree as follows: I.SCOPE AND PURPOSE Establishment of Point of Common Coupling. This Agreement is intended to provide for the Developer to interconnect and operate a Generation System in parallel with the Public Service electric distribution system at , as more specifically identified in Exhibit C and6300 DIAGONAL HWY, BOULDER, CO 80301 shown in the Exhibit A one-line diagram. This Agreement contains the terms and conditions under which the Developer may interconnect and operate in parallel the Generation System with the Public Service electric distribution system and the facilities and operation requirements of the Developer for such interconnection. This Agreement does not authorize the Developer to export power or constitute an agreement to purchase or wheel the Developer’s power. Such purchasing or wheeling services that the Developer or Customer may require from Public Service, or others, are provided under separate agreements or the Public Service’s retail or wholesale Electric Tariffs, and are subject to the rules of and/or approval from the applicable regulatory authority. This Agreement does not cover FERC jurisdictional generating system installations. The Technical Requirements for interconnection are set forth in a separate Technical Requirements document, entitled “Safety, Interference and Interconnection Guidelines for Cogenerators, Small Power Producers, and Customer-Owned Generation,” dated February 1, 2017, a copy of which has been made available to the Developer and the receipt of which Developer hereby acknowledges. The Technical Requirements, as may be modified from time to time, are hereby incorporated and made part of this Agreement by this reference. II. DEFINITIONS “ ” – Small Generator Interconnection Agreement.Agreement “ ” - an electric power system (EPS) that serves Local EPSs. Note: Typically, an Area EPS hasArea EPS primary access to public rights-of-way, priority crossing of property boundaries, etc. “” - the Public Utilities Commission of the State of Colorado.Commission “ ” - the party or parties that will own/operate the Generation System and shall be responsibleCustomer for meeting the requirements of this Agreement. ” - the equipment that is installed due to the interconnection of the Generation“Dedicated Facilities System and not required to serve other Public Service customers, as more specifically described on Exhibit B attached hereto and made a part hereof. " " - the party or parties that will own/operate the Generation System and that shall beDeveloper responsible for meeting the requirements of this Agreement. “ ” - Public Service’s electric tariffs as in effect and on file with the Commission from time toElectric Tariffs time. “ ” (Electric Power System) - facilities that deliver electric power to a load. Note: This may includeEPS generation units. - the Generation System is designed to remain connected with Public Service for an“Extended Parallel” extended period, see the Technical Requirements document for specific time thresholds. “ ” - any device producing electrical energy, i.e., rotating generators driven by wind, steamGeneration turbines, internal combustion engines, hydraulic turbines, solar, fuel cells, etc.; or any other electric producing device, including energy storage technologies. EXHIBIT D 2018_Small.Medium_3rdParty_InterconAgreement K. L. M. N. O. P. Q. R. A. 1. 2. 3. 4. 5. 6. A. B. C. D. A. B. 1. - the person or persons designated by Public Service to provide“Generation Interconnection Coordinator” a single point of coordination with the Applicant for the generation interconnection process. - the interconnected generator(s), controls, relays, switches, breakers, transformers,“Generation System” inverters, and associated wiring and cables, up to the Point of Common Coupling. “ ” - an electric power system (EPS) contained entirely within a single premise or group ofLocal EPS premises. “ ” - the total AC nameplate capacity rating of all the Generation included in theNameplate Capacity Generation System. For this definition, the “standby” and/or maximum rated kW capacity on the nameplate shall be used. “ ” - the point where the Local EPS is connected to Public Service, as shownPoint of Common Coupling on Exhibit A hereto. “ ” - the point where the energy changes possession from one party to the other. Point of Delivery Typically this will be where the metering is installed but it is not required that the Point of Delivery is the same as where the energy is metered. “ ” - the distribution dispatch personnel or group that operates the Public ServicePublic Service Operator Area EPS. “ ” - standards and requirements set forth in the document entitled “Safety,Technical Requirements Interference and Interconnection Guidelines for Cogenerators, Small Power Producers, and Customer-Owned Generation” (February 1, 2017), as may be modified from time to time. III. DESCRIPTION OF INTERCONNECTION CUSTOMER’S GENERATION SYSTEM A description of the Generation System, including a single-line diagram showing the general arrangement of how the Developer's Generation System is interconnected with Public Service’s electric distribution system, is attached to and made part of this Agreement as Exhibit A. Packaged Systems certified under IEEE Standard 1547.1 and UL Standard 1741 will not require a relaying and metering one-line diagram. The single-line diagram shall show the following: Point of Delivery Point of Common Coupling Location of Meter(s) Ownership of the equipment Generation System total Nameplate Capacity Scheduled operational (on-line) date for the Generation System IV. RESPONSIBILITIES OF THE PARTIES The Parties shall perform all of their respective obligations under this Agreement in accordance with all applicable laws and regulations, operating requirements, and good utility practices. Developer shall construct, operate, and maintain the Generation System in accordance with the applicable manufacturer’s recommended maintenance schedule, the Technical Requirements, and in accordance with this Agreement. Public Service shall carry out the construction of the Dedicated Facilities in a good and workmanlike manner, in accordance with standard design and engineering practices. Customer acknowledges Developer's responsibilities with respect to the construction, operation, and maintenance of the Generation System hereunder and consents to such activities on the Premises by Developer and Public Service as required or contemplated by this Agreement. V. CONSTRUCTION The Parties agree to cause their facilities or systems to be constructed in accordance with the laws of the State of Colorado and to meet or exceed applicable codes and standards provided by the NESC (National Electrical Safety Code), ANSI (American National Standards Institute), IEEE (Institute of Electrical and Electronic Engineers), NEC (National Electrical Code), UL (Underwriter’s Laboratory), Technical Requirements, applicable local building codes, and other applicable ordinances in effect at the .time of the installation of the Generation System Charges and Payments The Developer is responsible for the actual costs to interconnect the Generation System with the Public Service electric distribution system at the Point of Common Coupling, including, but not limited to any Dedicated Facilities attributable to the addition of the Generation System, Public Service labor for installation coordination, commissioning, installation testing and engineering review of the Generation System, and interconnection design that are consistent with the applicable rules of the Commission. Estimates of these costs to be incurred by Public Service are set forth in Exhibit B. The estimated costs set forth in Exhibit B have been developed for budgeting purposes and may be greater or less than the actual costs required to be reimbursed by the Developer hereunder. All costs for which the Developer is responsible shall be reasonable under the circumstances of the particular design and construction of the interconnection. Dedicated Facilities 2018_Small.Medium_3rdParty_InterconAgreement a. b. c. 2. a. b. A. 1. 2. 3. 4. During the term of this Agreement, Public Service shall design, construct, and install the Dedicated Facilities outlined in Exhibit B. Once installed, the Dedicated Facilities shall be owned and operated by Public Service and all costs associated with operating and maintaining the Dedicated Facilities shall be the responsibility of Public Service, unless otherwise agreed. Upon execution of this Agreement, Public Service shall be authorized to begin construction and to procure the necessary facilities and equipment to complete the installation of the Dedicated Facilities, as described in Exhibit B. Notwithstanding any other provision of this Agreement to the contrary, if for any reason, the Generation System project is canceled or modified, or this Agreement is terminated by the Developer or by reason of the Developer’s failure to diligently pursue the interconnection, such that any or all of the Dedicated Facilities are not required, the Customer shall nevertheless reimburse Public Service for actual costs incurred by Public Service in pursuing the installation of the Dedicated Facilities, including, but not limited to, any additional costs to remove and/or to complete the installation of the Dedicated Facilities. The Developer may, for any reason, cancel the Generation System project, so that any or all of the Dedicated Facilities are not required to be installed. The Developer shall provide written notice to Public Service of cancellation. Upon receipt of a cancellation notice, Public Service shall take reasonable steps to minimize additional costs to the Developer, where reasonably possible. This provision shall survive the termination of this Agreement. Payments. The Developer shall pay Public Service for the cost of the Dedicated Facilities as follows. All of the estimated costs, as set forth in Exhibit B, shall be due prior to initial energization of the Generation System with Public Service. The remainder of actual costs, incurred by the Public Service, excluding the ongoing costs of telemetry, shall be due within thirty (30) days from the date the bill is mailed by Public Service after project completion. If the Developer does not make payment in full within that time, the unpaid balance shall bear interest at the rate of one and one half percent (1.5%) per month. In the event the actual costs are less than the estimated costs paid by Developer, Public Service shall refund the difference to the Developer within sixty (60) days of project completion. VI. DOCUMENTS INCLUDED WITH THIS AGREEMENT This Agreement includes the following Exhibits, which are specifically incorporated herein and made part of this Agreement by this reference: – Description of Generation System and single-line diagram. ThisExhibit A diagram shows all major equipment, including, visual isolation equipment, Point of Common Coupling, Point of Delivery for Generation Systems that intentionally export, ownership of equipment, and the location of metering. – Estimated engineering, installation, equipment removal, commissioningExhibit B and testing costs payable by the Developer. Included in this listing shall be the description and estimated costs for the required Dedicated Facilities being installed by Public Service for the interconnection of the Generation System and a description and estimate for the final acceptance testing work to be done by Public Service. – Engineering Data Submittal. A standard form application, and relatedExhibit C charts, drawings and inventory lists that provide the engineering and operating information about the Generation System relied on by Public Service in establishing the interconnection. – Operating Requirements. To be included when needed. TheExhibit D Operating Agreement details special operation requirements that are a condition of interconnection and/or continued ongoing operation. 2018_Small.Medium_3rdParty_InterconAgreement A. 1. 2. 3. 4. a. i. ii. iii. iv. b. 5. B. A. B. C. VII. TERMS AND TERMINATION This Agreement shall become effective as of the date when both the &XVWRPHUDeveloper and Public Service haveexecuted this Agreement. The Agreement shall continue in full force and effect until the earliest date thatone of the following events occurs: The Parties agree in writing to terminate the Agreement; or The Developer may terminate this Agreement at any time, by written notice to Public Service, prior to witnessing the completion of the final acceptance testing of the Generation System by Public Service. Upon such termination, the Developer shall continue to be responsible for costs incurred by Public Service as provided for in Section V.B. above. Upon receipt of a termination notice, Public Service shall take reasonable steps to minimize additional costs to the Developer, where reasonably possible. Once the Generation System is operational, the Developer may terminate this Agreement after thirty (30) days written notice to Public Service; or Public Service may terminate this Agreement: After thirty (30) days written notice to the Developer if: The Developer fails to interconnect and operate the Generation System in accordance with the terms of this Agreement; The Developer employs excluded and/or unapproved Configurations or Operating Modes as set forth in Exhibit D; The Developer fails to take all corrective actions specified in Public Service’s written notice that the Generation System is out of compliance with the terms of Public Service’s tariffs or this Agreement, within the time frame set forth in such notice; The Developer fails to complete Public Service’s final acceptance testing of the Generation System within 24 months of the date proposed under section III.A.6.; Pursuant to Article VIII G). This Agreement shall automatically terminate upon the removal of the Generation System or the permanent cessation of generation operations by Developer behind the Point of Common Coupling. Upon termination of this Agreement, the Generation System shall be disconnected from Public Service’s electric distribution system. The termination of this Agreement shall not relieve either Party of its liabilities and obligations, owed or continuing, at the time of the termination. VIII. OPERATIONAL ISSUES Each Party will, at its own cost and expense, operate, maintain, repair, and inspect, and shall be fully responsible for, the facilities that it now or hereafter may own, unless otherwise specified. The Generation System shall be installed and operated by the Developer consistentTechnical Standards: with the requirements of this Agreement; the Technical Requirements; the applicable requirements located in the National Electrical Code (NEC); the applicable standards published by the American National Standards Institute (ANSI) and the Institute of Electrical and Electronic Engineers (IEEE); applicable local building codes, and other applicable ordinances in effect during the installation and operation of the Generation System and related facilities. At all times, Public Service’s personnel shall have access to the disconnect switch of theRight of Access: Generation System for any reasonable purpose in connection with the performance of the obligations imposed on it by this Agreement, to meet its obligation to operate Public Service’s system safely, and to provide service to its customers. As necessary for Public Service to operate, maintain, inspect, test, repair or replace its facilities for the purposes of this Agreement, the Developer shall allow Public Service access to Public Service’s equipment and facilities located on the premises. This Agreement does not govern the provision of electric service by Public Service toElectric Service: supply the electrical requirements of the Local EPS. Any such electric service to be supplied to the Customer’s Local EPS by Public Service shall be exclusively in accordance with the Electric Tariffs and rate schedules applicable to the Customer’s class of service there under, as in effect from time to time. 2018_Small.Medium_3rdParty_InterconAgreement D. E. F. G. H. I. A. B. C. The Generation System shall be operated by the Developer in accordanceOperation and Maintenance: with the Technical Standards, Exhibit D when applicable, and any additional requirements that may be agreed to in writing from time to time. Both Public Service and the Developer shall communicate and coordinateCooperation and Coordination: their operations, so that the normal operation of Public Service’s system does not unduly effect or interfere with the normal operation of the Generation System and the Generation System does not unduly effect or interfere with the normal operation of Public Service’s system. Under abnormal operations of either the Generation System or the Public Service system, the responsible Party shall provide reasonably timely communication to the other Party to allow mitigation of any potentially negative effects of the abnormal operation of their system. Public Service may disconnect the Generation System as reasonably necessary inDisconnection of Unit: the event of termination of this Agreement, non-compliance by the Developer with the terms of this Agreement, system emergency, imminent danger to the public or Public Service personnel, and routine maintenance, repairs, and modifications to the Public Service system. When reasonably possible, Public Service shall provide prior notice to both the Developer and Customer explaining the reason for the disconnection. If prior notice is not reasonably possible, Public Service shall, after the fact, provide information to the Developer and Customer as to why the disconnection was required. Public Service shall have no liability for any loss of sales or other damages, including any consequential damages for the loss of business opportunity, profits, or other losses, regardless of whether such damages were foreseeable, for the disconnection of the Generation System in accordance with this Agreement. Public Service shall expend reasonable effort to reconnect the Generation System in a timely manner and to work towards mitigating damages and losses to both the Developer and the Customer where reasonably possible. The Developer shall notify the Public Service Operator, inModifications to the Generation System: writing, of plans for any modifications to the Generation System interconnection equipment, including all information needed by Public Service, as part of the review described in this paragraph, at least twenty (20) business days prior to undertaking such modification(s). Modifications to any of the interconnection equipment, including all interconnection required protective systems, the generation control systems, the transfer switches/breakers, interconnection protection VT’s & CT’s, and Generation System capacity, shall be included in the notification to Public Service. The Developer agrees not to commence installation of any modifications to the Generating System until Public Service has approved the modification, inwriting, which approval shall not be unreasonably withheld. Public Service shall have a minimum of five (5) business days to review and respond to the planned modification. Public Service shall not take longer than a maximum of ten (10) business days to review and respond to the modification after the receipt of the information required to review the modifications. A major upgrade or expansion of the Generation System does not qualify for this provision. Such changes shall be reviewed through a formal interconnection application. Any modification to the generation system that causes the system to operate contrary to the provisions of Public Service’s tariffs and/or this Agreement shall be considered a material breach of this Agreement. For purposes of this Section modifications include but are not limited to: operating at a power factor other than specified; introduction in any manner of non-eligible energy resources to a net metered installation; connecting additional generation without notification to Company; or, other operating modes disallowed under the tariffs pursuant to which operation has been authorized. In such event, Public Service shall notify the Developer of the system’s non-compliance with Public Service’s tariffs or this Agreement and Developer shall have twenty (20) days from the date of such notice to either remedy the non-compliant operation or cease operation. If Developer fails to either remedy the non-compliant operation or cease operation within twenty (20) days of thedate of the notice, Public Service may terminate thisAgreement after ten (10) days written notice to Developer. The Developer shall obtain all applicable environmental and other applicablePermits and Approvals: permits from governmental authorities as required by law prior to the construction of the Generation System. The Developer shall maintain all such applicable permits, as necessary, and comply with these permits during the term of this Agreement IX.LIMITATION OF LIABILITY Each Party shall at all times indemnify, defend, and save the other Party harmless from any and all damages, losses, claims, including claims and actions relating to injury or death of any person or damage to property, costs and expenses, reasonable attorneys’ fees and court costs, arising out of or resulting from the Party’s performance of its obligations under this agreement, except to the extent that such damages, losses or claims were caused by the negligence or intentional acts of the other Party. Any liability of either Party to the other for failure to perform its obligations under this Agreement shall be limited to the amountof direct damage actually incurred. In no event shall either Party be liable to the other Party for any punitive, incidental, indirect, special, or consequential damages of any kind whatsoever, including for loss of business opportunity or profits, regardlessof whether such damages were foreseen. Notwithstanding any other provision in this Agreement, with respect to Public Service’s provision of electric service to any customer including the Customer, Public Service’s liability to such customer shall be limited as set forth in Public Service’s tariffs and terms and conditions for electric service, and shall not be modified or in any manner affected by the terms of this Agreement. 2018_Small.Medium_3rdParty_InterconAgreement A. B. C. A. 1. 2. 3. 4. 5. B. C. D. E. 1. 2. F. G. H. X.DISPUTE RESOLUTION Each Party agrees to attempt to resolve all disputes arising hereunder promptly, equitably, and in a good faith manner. In the event a dispute arises under this Agreement, and if the Parties cannot resolve it within five (5) days after written notice of the dispute to the other Party, the Parties may mutually agree to submit the dispute to mediation by a mutually acceptable mediator or dispute resolution service, in a mutually convenient location in the State of Colorado. Each Party will be responsible for one-half of the cost paid to neutral third-parties. The Parties agree to participate in good faith in the mediation or resolution process. If the Parties are not successful in resolving their dispute through mediation or the dispute resolution process, then the Parties may refer the dispute for resolution to the Commission, which shall maintain continuing jurisdiction over this Agreement. XI.INSURANCE At a minimum, in connection with the Developer's performance of its duties and obligations under this Agreement, the Developer shall maintain, during the term of the Agreement, general liability insurance with a combined single limit of not less than Two million dollars ($2,000,000) or greater, as mutually agreed to by the Parties, for each occurrence if the Gross AC Nameplate Rating of the Generation System is greater than 2 MW. Two million dollars ($2,000,000) for each occurrence if the Gross AC Nameplate Rating of the Generation System is greater than 500 kW up to and including 2 MW. One million dollars ($1,000,000) for each occurrence if the Gross AC Nameplate Rating of the Generation System is greater than 10 kW up to and including 500 kW. Three hundred thousand dollars ($300,000) for each occurrence if the Gross AC Nameplate Rating of the Generation System is 10 kW or less. Such general liability insurance shall include coverage against claims for damages resulting from (i) bodily injury, including wrongful death; and (ii) property damage arising out of Developer's ownership and/or operating of the Generation System under this Agreement. For Generation System over 500 kW, the general liability insurance required by Section XI.A shall, by endorsement to the policy or policies: (a) include Public Service as an additional insured for systems over 500 kW; and (b) provide that Public Service shall not by reason of its inclusion as an additional insured incur liability to the insurance carrier for the payment of premium for such insurance. All general liability insurance required by Section XI.A shall, by endorsement to the policy or policies, provide for thirty (30) calendar days’ written notice to Public Service prior to cancellation, termination, alteration, or material change of such insurance. Evidence of the insurance required in Section XI.A shall state that coverage provided is primary and is not excess to or contributing with any insurance or self-insurance maintained by Public Service. If the Developer is self-insured with an established record of self-insurance, the Developer may comply with the following in lieu of Section XI.A – D: Developer shall provide to Public Service, at least thirty (30) days prior to the date of initial operation, evidence of an acceptable plan to self-insure to a level of coverage equivalent to that required under section XI.A. If Developer ceases to self-insure to the level required hereunder, or if the Developer is unable to provide continuing evidence of its ability to self-insure, the Developer agrees to immediately obtain the coverage required under Section XI.A. The Developer shall provide Public Service a certificate of insurance evidencing the requisite coverage and provisions prior to the interconnection of the Generation System. After interconnection, Public Service may periodically request proof of current insurance coverage in order to verify compliance with the requirements of this Section XI. Upon receipt of any such request, the Developer shall provide a certificate of insurance evidencing the requisite coverage and provisions. Failure of the Developer to provide timely evidence of proper insurance may result in disconnection of the Generation System pursuant to Section VIII.F. Failure of the Developer or Public Service to enforce the minimum levels of insurance does not relieve the Developer from maintaining such levels of insurance or relieve the Developer of any liability. All insurance certificates, statements of self-insurance, endorsements, cancellations, terminations, alterations, and material changes of such insurance shall be issued and submitted to Public Service Company. Applications that are submitted via an on-line submittal process such as the Solar*Rewards® shall provide the insurance submittal as part of the on-line submittal. All other applications shall submit the insurance documentation to: Public Service, Manager Area Engineering, 1123 W. 3 Avenue, Denver, CO 80223 rd 2018_Small.Medium_3rdParty_InterconAgreement A. 1. 2. B. 1. a. b. 2. 3. C. 1. D. 1. E. 1. 2. 3. F. 1. XII.MISCELLANEOUS FORCE MAJEURE An event of Force Majeure means any act of God, act of the public enemy, war, insurrection, riot, fire, storm or flood, explosion, breakage or accident to machinery or equipment, any curtailment, order, regulation, or restriction imposed by governmental, military or lawfully established civilian authorities, or any other cause beyond a Party’s control. An event of Force Majeure does not include an act of negligence or intentional wrongdoing. Neither Party will be considered in default of any obligation hereunder if such Party is prevented from fulfilling the obligation due to an event of Force Majeure. However, a Party whose performance under this Agreement is hindered by an event of Force Majeure shall make all reasonable efforts to perform its obligations hereunder. NOTICES Any written notice, demand, or request required or authorized in connection with this Agreement (“Notice”) shall be deemed properly given if delivered in person or sent by first class mail, postage prepaid, to the person specified below: If to Public Service: Public Service, Manager Area Engineering, 1123 W. 3rd Avenue, Denver, CO 80223 If to Developer: 8QLYHUVH%OYG-XQR%HDFK)/ A Party may change its address for notices at any time by providing the other Party written notice of the change, in accordance with this Section. The Parties may also designate operating representatives to conduct the daily communications that may be necessary or convenient for the administration of this Agreement. Such designations, including names, addresses, and phone numbers may be communicated or revised by one Party’s notice to the other Party. ASSIGNMENNT All of the terms, covenants, representations, warranties, and conditions of this Agreement shall be binding upon, and inure to the benefit of and be enforceable by, the Parties hereto and their respective successors, but neither this Agreement nor the rights and obligations of the Developer or Customer may be assigned except as provided for in this Section XII.C. In the event the Developer sells, conveys or otherwise transfers ownership or operational control of the Generation System to another entity (“New Owner”), this Agreement may be transferred to such New Owner upon receipt by Public Service of a written document, in a form satisfactory to Public Service, indicating the New Owner’s agreement to comply with all of the terms of this Agreement. The Developer shall not otherwise assign its rights nor delegate its duties under this Agreement without Public Service’s written consent, which shall not be unreasonably withheld. Any assignment or delegation the Developer makes without Public Service’s written consent shall not be valid. NON-WAIVER None of the provisions of this Agreement shall be considered waived by a Party unless such waiver is given in writing. The failure of a Party to insist in any one or more instances upon strict performance of any of the provisions of this Agreement or to take advantage of any of its rights hereunder shall not be construed as a waiver of any such provisions or the relinquishment of any such rights for the future, but the same shall continue and remain in full force and effect. GOVERNING LAW AND INCLUSION OF PUBLIC SERVICE’S TARIFFS AND RULES. This Agreement shall be interpreted, governed, and construed under the laws of the State of Colorado as if executed and to be performed wholly within the State of Colorado without giving effect to choice of law provisions that might apply to the law of a different jurisdiction. The provisions of this Agreement shall at all times be subject to the applicable terms and conditions set forth in the Electric Tariffs pertaining to the electric service provided by Public Service, which are hereby incorporated into this Agreement by this reference. Notwithstanding any other provisions of this Agreement, Public Service shall have the right to unilaterally file with the Commission, pursuant to the Commission’s rules and regulations, an application for change in rates, charges, classification, service, tariff, or rule or any agreement relating thereto. AMENDMENT AND MODIFICATION This Agreement will not be amended, modified or supplemented except by a written instrument signed by an authorized representative of each of the Parties hereto. 2018_Small.Medium_3rdParty_InterconAgreement G. 1. 2. H. 1. 2. a. b. 3. I. 1. J. 1. ENTIRE AGREEMENT This Agreement, including all attachments, exhibits, and appendices, constitutes the entire Agreement between the Parties with regard to the interconnection of the Generation System of the Parties at the Point(s) of Common Coupling expressly provided for in this Agreement and supersedes all prior agreements or understandings, whether verbal or written. It is expressly acknowledged that the Parties may have other agreements covering other services not expressly provided for herein, which agreements are unaffected by this Agreement. Each Party also represents that in entering into this Agreement, it has not relied on the promise, inducement, representation, warranty, agreement, or other statement not set forth in this Agreement or in the incorporated attachments, exhibits, and appendices. This Agreement may be executed in two or more counterparts, each of which is deemed original but all constitute one and the same instrument. The Parties agree that a facsimile copy of a signature will be deemed original and binding. CONFIDENTIAL INFORMATION Confidential information shall mean any confidential and/or proprietary information provided by one Party to the other Party that is clearly marked or otherwise designated "Confidential." All design, operating specifications, and metering data provided by the Interconnection Developer shall be deemed confidential information regardless of whether it is clearly marked or otherwise designated as such. Confidential Information does not include information previously in the public domain, required to be publicly submitted or divulged by Governmental Authorities (after notice to the other Party and after exhausting any opportunity to oppose such publication or release), or necessary to be divulged in an action to enforce an agreement between the Parties. Each Party receiving Confidential Information shall hold such information in confidence and shall not disclose it to any third party nor to the public without the prior written authorization from the Party providing that information, except to fulfill obligations under agreements between the Parties, or to fulfill legal or regulatory requirements. Each Party shall employ at least the same standard of care to protect Confidential Information obtained from the other Party as it employs to protect its own Confidential Information. Each Party is entitled to equitable relief, by injunction or otherwise, to enforce its rights under this provision to prevent the release of Confidential Information without bond or proof of damages, and may seek other remedies available at law or in equity for breach of this provision. Notwithstanding anything in this article to the contrary, if the Commission, during the course of an investigation or otherwise, requests information from one of the Parties that is otherwise required to be maintained in confidence, the Party shall provide the requested information to the Commission, within the time provided for in the request for information. In providing the information to the Commission, the Party may request that the information be treated as confidential and non-public by the Commission and that the information be withheld from public disclosure. The Party shall notify the other Party when it is notified by the Commission that a request to release Confidential Information has been received by the Commission, at which time either of the Parties may respond before such information would be made public. NO WARRANTIES By undertaking the performance of any of its responsibilities under the terms of this Agreement, including, without limitation, any inspection, acceptance or non-rejection, Public Service does not give and hereby disclaims any warranty, expressed or implied, as to the adequacy, safety, or other characteristics of any structures, equipment, wires, appliances, or devices owned, installed, or maintained by the Developer or leased by the Developer from third parties, including without limitation the Generation System and any structures, equipment, wires, appliances, or devices appurtenant thereto. NO PARTNERSHIP This Agreement shall not be interpreted or construed to create an association, joint venture, agency relationship, or partnership between the Parties or to impose any partnership obligation or partnership liability upon either Party. Neither Party shall have any right, power, or authority to enter into any agreement or undertaking for, or act on behalf of, or to act as or be an agent or representative of, or to otherwise bind, the other Party. IN WITNESS WHEREOF, the Parties hereto have caused three originals of this 2018_Small.Medium_3rdParty_InterconAgreement Agreement to be executed by their duly authorized representatives. This Agreement is effective as of the last date set forth below. Customer: By: _______BBBBBBBBBBBBB_________________________ Name: I B M CORP Title: ______BBBBBBBBBBBBB________________________ Date: ______BBBBBBBBBBBBB________________________ Developer: By: _______BBBBBBBBBBBBB_________________________ Name: BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB(Authorized agent for '*&RORUDGR6RODU, LLC) Title: ______BBBBBBBBBBBBB________________________ Date: ______BBBBBBBBBBBB________________________ Public Service Company of Colorado: By: ______________BBBBBBBBBBBBBB_________________ Name: Lee Gabler Title: Director, Customer Strategy and Solutions Date: __________BBBBBBBBBBBBB____________________ Matt Handel Vice President : ______BBBBBBBBBBBBB__________________________________________________________________________BB eloper: _______________________________________________________________________BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB____________________BB 12/4/18 2018_Small.Medium_3rdParty_InterconAgreement EXHIBIT A GENERATION SYSTEM DESCRIPTION AND SINGLE-LINE DIAGRAM (1) A-1 2018_Small.Medium_3rdParty_InterconAgreement EXHIBIT B SUMMARYOF PUBLIC SERVICE COSTS AND DESCRIPTION OF DEDICATED FACILITIES BEING INSTALLED BY PUBLIC SERVICE, FOR THE INTERCONNECTION OF THE GENERATION SYSTEM Except as otherwise may be provided in separate agreements, there are no interconnection costs associated with the installation of a solar photovoltaic system with a nameplate capacity of 500 kW and less. B-1 Page 1 of 4 1052 SEr2_110718 IBM Large Solar_Cover Letter.docx Scoping Estimate (Revision 2) – Fdr 1052 IBM Large Solar Interconnect A “Scoping Estimate” is provided by Xcel Energy for the convenience of the requesting entity. It is produced before detailed engineering design has begun. Xcel Energy is providing every effort to produce a representative estimate that incorporates as many project-specific factors as possible. A Scoping Estimate gives a broad-based estimate of the likely costs that may be incurred during a potential construction project. However, a Scoping Estimate is generally based on typical conditions encountered on past construction projects and uses historical cost data from other Xcel Energy projects, which may or may not be directly comparable, and is made prior to the start of detailed engineering design. Xcel Energy will not proceed to construction based on a Scoping Estimate. If a Requester wants a more definitive estimate of the cost of a project, an “Appropriations Estimate” should be requested. An Appropriations Estimate is generally provided after substantial early engineering design efforts have occurred. Requester Name Kristin Gaspar Phone: 303-571-7687 Address 1800 Larimer St, Denver Project Information: Substation Name: Sub Location: Boulder CO Title: IBM Large Solar Interconnect Preliminary Scope: Preliminary Assumptions: Page 2 of 4 1052 SEr2_110718 IBM Large Solar_Cover Letter.docx Estimated One Line: N/A at this time. To be provided at later stage of project. Page 3 of 4 1052 SEr2_110718 IBM Large Solar_Cover Letter.docx Indicative Estimate of Costs: HD Estimate Name(s): -SEr2-Fdr 1052-IBM Large Solar Interconnect Permitting (Before Construction) S&LR/Project Mgmt (During and After Construction) Material Transformer (w/tax & Ohs) b Construction Labor & Rentals Commissioning Engineering, Design & Survey Contingencies c Overheads AFUDC Removals Escalation d Capital TNE O&M a Escalation Factor d Overhead Factor (E&S + A&G) In-Service Date, estimated a O&M costs include costs for installing/removing Mobiles or for relocating existing equipment or structures when required. b Transformer costs can be highly volatile and lead times can fluctuate or be dependent on road restrictions. c Contingencies were assumed to cover more than average costs for construction, engineering, materials, and permitting, as well as additional construction labor costs due to poor weather, lack of outages, and low labor availability. d The escalation for Substations is built into the Material, Labor, Rental, and Testing line items. The escalation for Transmission Lines is displayed as a separate line item. Preliminary Schedule: Construction manpower, engineering, material, and outage availabilities may affect the project lead-times indicated below: Key Activity Permitting Land/Easements Engineering, Design & Survey Material Req./Purch./Deliv. Civil Construction Electrical Constr., Testing & Commissioning Total Lead-time Page 4 of 4 1052 SEr2_110718 IBM Large Solar_Cover Letter.docx Prepared By: Xcel Energy – PSCo Substation Engineering and Project Management John Horak, PR Eng. Approved By: Xcel Representative Date 2018_Small.Medium_3rdParty_InterconAgreement EXHIBIT C ENGINEERING DATA SUBMITTAL, FOR THE INTERCONNECTION OF THE CUSTOMER'S GENERATION SYSTEM (1) Small Generator Interconnection Application ** Submitted with online Solar application (only applicable for systems over 10 kW) For all other applications, the completed application form shall be attached to this Exhibit. C-1 2018_Small.Medium_3rdParty_InterconAgreement EXHIBIT D OPERATING REQUIREMENTS The Generation Facility shall operate at a specified fixed Power Factor: The specified Power Factor as a condition of interconnection: 98%; VARsAbsorbing This Power Factor is specified at the: Point of Common Coupling The power factor may be changed from time to time by mutual agreement. A temporary power factor may be specified by Public Service Company of Colorado d/b/a Xcel Energy as a condition of operation in lieu of disconnecting when the distribution system is in a contingency configuration. The system owner is responsible to operate and maintain all equipment per manufacturer specifications and guidelines. Start-Up, Shut-Down, and Ramp Rates (Applicable for systems above 100kW with more than 1 inverter): In order to mitigate voltage variations, where the Generation System consists of more than one unit (e.g., inverters in a solar PV context), with aggregate rating of 100kW AC or above; Interconnection Customer shall stagger the planned start-up and shutdown of the units in 50%+/- increments if only two inverters, 33% +/- increments if three inverters and 25% +/- increments if four or more inverters, with a minimum delay of 30 seconds between the starting and controlled stopping of each unit,. A controlled planned shutdown may be a condition of interconnection. The sequence of operation, including estimated timeframes for actions, must be submitted to and approved by Xcel Energy in advance. In order to mitigate voltage variations and surges, Xcel Energy reserves the right, based upon the Engineering Study, to have Customer modify Start-up, Shut Down, and Ramp Rate requirements, within the equipment’s capability. Customer shall comply with the request for modification in a timely fashion in accordance with good utility practices. Specific to Customer’s Installation: N/A Applicable If Energy Storage Systems Are Involved: Three Energy Storage Guidance Documents (“Guidance Documents”) address battery configurations and requirements related to the terms of Colorado Public Utilities Commission Proceeding No. 16AL-0048E. Energy storage interconnections are allowed as addressed in these Guidance Documents. The interconnection principles illustrated also apply to large interconnections, as permitted in the filed tariffs. In the event of a conflict between this Operating Agreement and Guidance Documents, the Guidance Documents shall rule. Energy storage system interconnections not included in this PUC Proceeding must be documented and be in accordance with the Engineering Study and applicable tariffs Nothing under the Guidance Documents shall be construed to limit the export of actual onsite renewable self-generation that is net metered in compliance with the approved tariffs Exclusions Certain tariff and generation interconnection types are outside the provisions of PUC Proceeding No. 16AL-0048E and are not covered in the Guidance Documents. Each Guidance Document lists the relevant interconnection types excluded. Energy storage system interconnections not included in this proceeding must be documented and be in accordance with the Engineering Study and applicable tariffs. Additional Definitions “Configuration”- the physical electrical design of the Distributed Energy Resource (“DER”). The Guidance Documents provide diagrams showing representative typical connection designs for a small PV as examples. The Configuration is a combination of the illustrated connection and the diagram notes concerning the equivalent connections inside of a software-governed inverter. “Distributed Energy Resource (DER)” - a source of electric power that is not directly connected to a bulk power system. DERs includes both generators and energy storage technologies capable of exporting active power to the Area Electric Power Supplier (“EPS”) as defined by the Institute of Electrical and Electronics Engineers (“IEEE”) standard 1547-2003. “Energy Storage Guidance Documents” or “Guidance Documents” - Guidance documents for the interconnection of electric storage based on agreed to terms from Proceeding No. 16AL-0048E and as published on the Xcel Energy website. “Inadvertent Export”- the unscheduled and uncompensated export of real power generated from a customer’s parallel operation and delivered to the Company. The use of an internal transfer relay, energy management system, or other customer facility hardware or software system(s) intended to prevent the reverse power flow, or net export, from the customer’s energy source across the point of interconnection shall be required. The magnitude of energy export shall be less than the aggregate 2018_Small.Medium_3rdParty_InterconAgreement 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. nameplate rating (kW-gross) of all sources ineligible to export power (Non-Export) multiplied by one hour per month, and the duration of export of power from the customer’s parallel operation shall be less than 30 seconds for any single event. “Interconnected DER Capacity”- the aggregate nameplate ratings of the DER that can be simultaneously supplied to the grid, such as storage and self-generation. If the contribution of the energy storage to the total contribution is limited by programming or by some other onsite limiting element, the reduced ongoing capacity will be used. “Material Change” - any modification to the system that causes the system to operate contrary to the approved operating configuration shall be considered a material change and shall be considered a material breach of this Agreement. “Non-Export”- a restriction whereby no Parallel Operation of Self-Generation or Energy Storage energy may export from the utility service meter to the utility is allowed and for which no payment will be given. Non-Export also applies to specific sources not allowed to export, such as batteries. Export of non-renewable sourced energy is not allowed. Non-Export restrictions are subject to the “Inadvertent Export” definition. “Operating Mode”- a combination of the functionality in the physical Configuration and the functionality in the software programming some of which is not shown in the Configuration diagram. Operating Mode is the combined function designed to achieve an Operating Objective that may vary with a change of settings. Operating Modes are established as a function, not by a diagram designation. Operating Modes include, but are not limited to, battery non-export, maximize self-consumption, maximize export, perform time shifting, and perform peak shaving. A change of Operating Mode may constitute a change of Operating Objective. “Operating Objective” - the functional purpose of the DER operation achieved by the combination of the approved Configuration and Operating Mode. Any alterations to an Operating Mode may result in unacceptable changes to the Operating Objective as originally approved. Such changes may render the facility ineligible for use without additional mitigations. “Parallel Operation of Energy Storage”- a source operated in parallel with the grid when it can supply energy to the customer simultaneously with the Company supply of energy. “Self-Generation”- a customer supplying all or part of their entire load from onsite generation with no intent of exporting that self-generated power or receiving payment for export. Energy Storage Requirements and Additional Information The energy storage design follows Guidance Document and Configuration and follows all provisions of associated requirements. Per the Guidance Documents, interconnection study, and interconnection tariff, the Operating Modes allowed for the energy storage shall be limited to applicable Operating Modes allowed under the Energy Storage Guidance and Tariff. Any change in Configuration or Operating Mode from the Configuration or Operating Mode specified in the application that impacts the ability of the energy storage system to adhere to the applicable and approved Configuration and Guidance Document requirements may be considered a material change and may require partial or full review of the facility, which may require additional system mitigations. Excluded modes are any Operating Modes not included and approved as part of the interconnection review. Configurations and Operating Modes Excluded: N/A Inverter software programming or other programming required to meet the energy storage guidance requirements shall be inaccessible and/or password protected with access restricted to manufacturer/developer/installer. This may include locks or other physical security or other means of securing the settings; or as mutually agreed upon on a case-by-case basis and identified in this Energy Storage System section of Exhibit D: N/A Any energy storage system that cannot be secured in a single Operating Mode must be reviewed for compliance with the guidelines for all Configurations or Operating Modes that are user selectable. The application must have all unapproved Operating Modes documented under Excluded Modes in paragraph 4 above and the applicable Guidance Document. Any use of excluded or unapproved Configurations or Operating Modes may be grounds for disconnection and termination of the Agreement subject to cure provision in IA Section VIII. H to which this Exhibit is attached. Customer accepts that for energy storage systems interconnected per Guidance Document No. 3, Configurations will result in some loss of Production Meter recorded RECs and corresponding payments for installations eligible for REC payments. This is due to battery energy storage systems’ consuming some power for maintaining a charge along with the discharge-charge cycle resulting in turn-around losses. For energy storage systems interconnected per Guidance Document No. 3, Configuration 3A, with a protected load panel, a meter socket shall be installed between the hybrid inverter and protected load panel for the installation of a uni-directional Load meter by utility. Telemetry requirements are determined based on the Interconnected DER Capacity with requirement thresholds outlined in the Technical Requirements. Telemetry required: Y / N Xcel Energy reserves the right to conduct a facility inspection to verify compliance at a later date if problems arise or indications of possible non-compliance are present. 2018_Small.Medium_3rdParty_InterconAgreement 11.Specific to Customer’s Installation N/A Applicable for Systems that Require Ground Referencing Transformer Provisions: The ground referencing transformer shall be operated and maintained such that: The grounding referencing transformer must be in service whenever the inverters or other sources are on-line and capable of producing power while connected to the utility. At any time the grounding transformer is unavailable, the inverters or other sources must not be allowed to start or restart a connection to the utility. Specific to Customer’s Installation: N/A Applicable for Systems that Require Ground Referencing Transformer Provisions: The ground referencing transformer shall be operated and maintained such that: The grounding referencing transformer must be in service whenever the inverters or other sources are on-line and capable of producing power while connected to the utility. At any time the grounding transformer is unavailable, the inverters or other sources must not be allowed to start or restart a connection to the utility. Specific to Customer’s Installation:___________________________ Applicable to Systems Over 100 kW AC when Disconnection Due to System Constraints or Safety may be Required: Disconnection or Curtailment Requirements of the generating system when required pursuant to Section VIII.F) of the Generating System Interconnection Agreement (IA) to which this Exhibit is attached: Public Service may disconnect the Generation System as reasonably necessary in the event of imminent danger to the public or Public Service personnel, and routine maintenance, repairs, and modifications to the Public Service system. See IA VIII.F) for notification by Public Service provisions. The Interconnection Customer shall ensure that at all times Public Service has access to a manually operated three-phase lockable disconnect switch pursuant to Section VIII.B) of the IA. Interconnection Customer agrees and consents to Public Service’s remote tripping or manual disconnection, as reasonably necessary under good utility practice, of the utility owned disconnecting device or other agreed to facility device for the Generation System including, but not limited to, in the following circumstances, when system conditions exceed parameters defined in any IEEE, NESC, ANSI standards, prudent safety practices, system capacity limits, or utility system contractual limits: Electric Distribution or Transmission System emergency Public emergency Abnormal system operation Planned switching Transmission system constraints The above may have situations where a partial reduction in Facility output may adequately alleviate the problem. If partial curtailment is an option for one or more of the above conditions, the applicant will need to demonstrate how this can be accomplished. Interconnection Customer’s failure to promptly respond to and execute on Public Service’s request to curtail the output of the Generation System, it will be disconnected either manually or remotely by Public Service Company. If Public Service remotely trips the disconnecting device for the Generation System, Public Service will close the device remotely, if so equipped, after attempting to notify the Large Interconnection Customer’s Control Center Contact. Public Service will close their device remotely once the reason for the remote tripping has passed and it is safe and consistent with good utility practice to do so. If the disconnection was done manually, Public Service will close the device in a timely manner. The Generation System is subject to curtailment or disconnection for the following defined limitation in addition to the above : ( if none)conditions N/A Describe:____________________________________________________________________ Remotely operated separation device, if other than utility owned, agreed to by the Large Interconnection Customer: ( ifN/A none) Decribe:_____________________________________________________________________ Control Center Contacts: Each Party shall contact each other’s Control Center Contact for all operational issues related to the Generation System, pursuant to IA Section XII.B). In order to permit Public Service and the Large Interconnection Customer to take immediate action, the Large Interconnection Customer and Public Service shall at all times provide to each other the contact information of 2018_Small.Medium_3rdParty_InterconAgreement each other’s Control Center Contact, which shall be available twenty-four (24) hours a day, seven (7) days a week and be able to take action with respect to the operation of the Generation System and the Distribution System, respectively. Each Party shall keep the other informed of their Control Center contact information. Notice of changes to Control Center contact information shall be provided when such changes occur. Installer: By: ______1$_______________________BBBB Name: BBBB1$BBBBB(Authorized agent for NextEra Energy Resources Acquisitions, LLC) Title: ____B1$___B_____________________B Date: _____1$BBB_______________________ DISTRICT COURT, BOULDER COUNTY, COLORADO Boulder County Justice Center 1777 - 6th Street, Boulder, Colorado 80302 ________________________________________________ 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 ▲COURT USE ONLY▲ _________________________ Case Number: 2019 CV 30637 Division: 5 ORDER JOINING IBM AS RESPONDENT ______________________________________________________________________________ THE COURT, upon consideration of the Cross Petition of International Business Machine Corporation (“IBM”) and being fully informed of the pleadings in this condemnation action, hereby FINDS that pursuant to C.R.S. § 38-1-109, IBM’s Cross Petition properly sets forth that IBM is an owner or has interests in the property sought to be taken or damaged by the Petitioner as described in the Amended Petition in Condemnation and that IBM has adequately stated the character and extent of its interests. It is therefore ORDERED that IBM’S Cross Petition is accepted by this Court and IBM is hereby joined and made a respondent in this condemnation action. IT IS FURTHER ORDERED that IBM shall file an answer or other response to the Amended Petition in Condemnation within 21 days of the date of this Order. Dated this ____ day of ___________, 2019. BY THE COURT: ________________________________________ DISTRICT COURT JUDGE