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034 PSCo's Motion for Attorney Fees and Proposed Order 1 US.125082914.02 DISTRICT COURT, BOULDER COUNTY, COLORADO Court Address: 1777 6TH Street, Boulder Colorado 80302 303-441-3750 _________________________________________________ Petitioner: THE CITY OF BOULDER, a Colorado Home Rule City, v. Respondents: PUBLIC SERVICE COMPANY OF COLORADO, a Colorado Corporation, d/b/a XCEL ENERGY; MORGAN GUARANTY TRUST COMPANY OF NEW YORK; and PAUL WEISSMANN, in his official capacity as Treasurer of Boulder County. _________________________________________________ Attorneys for Respondent, Public Service Company of Colorado, a Colorado Corporation John R. Sperber, Atty. Reg. No. 22073 Sarah M. Kellner, Atty. Reg. No. 38111 FAEGRE BAKER DANIELS LLP 1144 Fifteenth Street, Suite 3400 Denver, Colorado 80202 Telephone: (303) 607-3500 Fax: (303) 607-3600 Email: jack.sperber@faegrebd.com sarah.kellner@faegrebd.com COURT USE ONLY __________________________ Case Number: 19 CV 30637 Division: 5 RESPONDENT’S MOTION FOR ATTORNEY FEES Respondent, Public Service Company of Colorado (“PSCo” or “Public Service”), by and through its undersigned counsel, submits the following Motion for Attorney Fees pursuant to C.R.S. § 38-1-122(1). 2 US.125082914.02 I. CERTIFICATE OF CONFERRAL Consistent with C.R.C.P. 121, § 1-15(8), PSCo certifies it conferred in good faith with counsel for the City of Boulder (the “City”), who stated that the City opposes this Motion. II. INTRODUCTION In January 2015 the Boulder District Court held that the Colorado Public Utilities Commission (“PUC”) had exclusive jurisdiction to determine how PSCo’s facilities should be “assigned, divided, or jointly used” as part of Boulder’s municipalization efforts. See Exhibit 1 to PSCo’s Motion to Dismiss, January 14, 2015, Order Re: Judicial Review of the Colorado Public Utilities Commission Decisions (Case No. 14CV30047). That order made clear that “[s]uch a determination must be made prior to the City’s condemnation of property for utility municipalization.” The Boulder District Court also dismissed Boulder’s first attempt to condemn PSCo’s property before obtaining the necessary PUC approvals. See Exhibit 2 to PSCo’s Motion to Dismiss, February 13, 2015 Order in 2014CV30890. Despite still not having any such PUC approvals, on December 4, 2018 Boulder’s City Council adopted an ordinance authorizing the condemnation of PSCo’s property. That ordinance was followed by a Notice of Intent to Acquire sent to PSCo on January 31, 2019, offers and other communications made to PSCo under threat of condemnation and, ultimately, the filing of this condemnation action on June 28, 2019. All these Boulder activities forced PSCo to incur substantial fees and costs to defend itself against the City’s attempt to acquire facilities and real property that was not yet approved by the PUC and to otherwise prepare for and participate in this condemnation litigation. 3 US.125082914.02 On September 4, 2019, this Court dismissed the City’s Amended Petition in Condemnation on the basis that the PUC still retained exclusive jurisdiction over the separation and use of PSCo’s property, making this action premature. Such a dismissal entitles PSCo to recover of all of its reasonable attorney fees and costs incurred in connection with Boulder’s condemnation effort under C.R.S. § 38-1-122(1). See also Platte River Power Authority v. Nelson, 775 P.2d 82, 83 (Colo. App.1989). PSCo has been billed approximately $677,000 in fees and costs for its outside eminent domain counsel from January 1, 2019 through the end of September. It has also incurred other outside counsel fees, expert witness fees and costs, and expended considerable internal legal and business resources responding directly to Boulder’s threatened and actual condemnation litigation. PSCo is entitled to reimbursement of all such fees and costs. But due to the posture of this case and Boulder’s stated intent to initiate condemnation proceedings again, PSCo is limiting the fees it seeks at this time to the work done since Boulder filed its improper condemnation action, and is further limiting its request to only the current case’s litigation activities (as opposed to work with experts and other activities that may have some continued usefulness in a future condemnation case with Boulder). That amount totals $210,748.15. The Court should order Boulder to reimburse PSCo the full amount of $210,748.15 in attorney fees it seeks under C.R.S. § 38-1-122(1). III. FACTUAL AND PROCEDURAL BACKGROUND As this Court is aware from the Motion to Dismiss briefing and other information, Boulder’s efforts to take PSCo’s utility system and business began nearly a decade ago . The property at issue involves thousands of electric distribution facilities, the right to serve all electric utility customers within the City of Boulder, and hundreds of millions of dollars are in dispute . 4 US.125082914.02 Any condemnation case that ultimately proceeds will likely involve numerous issues of first impression under Colorado law and complex and highly contested en gineering, operational, regulatory, legal and valuation issues. Sperber Affidavit ¶ 17. Boulder’s efforts to date have resulted in many years of litigation at the PUC and in other forums, including an earlier attempt by Boulder to file a condemnation case in July 2014, which was also dismissed while Boulder also sought to appeal PUC orders requiring it to obtain approvals from the Commission before acquiring PSCo’s property. Although PSCo was entitled to its fees under C.R.S. § 38-1-122(1) following that dismissal, PSCo ultimately did not move for fees in that case. Sperber Affidavit ¶¶ 3-4. In response to these earlier Boulder District Court orders, the Parties returned to the PUC and have been engaged in extensive negotiations, litigation, and hearings relevant to the PUC’s determination of what assets and real property can be subject to transfer. That determination was not made before Boulder filed this condemnation case.1 Sperber Affidavit ¶ 5. Leading up to the filing of this second condemnation case, Boulder began taking other actions that required PSCo to begin preparing for and responding to the threatened litigation . On December 4, 2018 Boulder passed an ordinance asking its staff to move forward with acquisition negotiations and ultimately condemnation of PSCo’s property, all of which was still the subject of disputed PUC proceedings. Sperber Affidavit ¶ 6. Then, despite communications between the 1 Since the time of this Court’s dismissal, the PUC filed an order on September 30, 2019 confirming its prior decision that Boulder cannot condemn any facilities or real property inside substations. As the Court is aware, the Amended Petition sought to acquire significant interests in four substations. On October 10, 2019 the PUC also indicated in oral deliberations that it will approve the designation of certain facilities and real property outside substations for potential transfer to Boulder identified on exhibits submitted by the parties which are materially different than the assets identified in the Amended Petition. A written Order from the PUC to that effect has not yet issued. 5 US.125082914.02 parties wherein PSCo made clear its position that condemnation and negotiations were premature given the pending PUC proceedings, on January 31, 2019 the City sent a formal Notice of Intent to PSCo notifying PSCo of its plan to condemn PSCo’s property if necessary and authorizing PSCo to obtain an appraisal at Boulder’s expense pursuant to C.R.S. § 38-1-121. Sperber Affidavit ¶ 7. That Notice of Intent was followed by a written offer to acquire on April 10, 2019. PSCo responded, again informing Boulder that it could not negotiate over assets and real property lists that were not final and had not been approved for transfer. Sperber Affidavit ¶ 8. Unwilling to acknowledge its actions were premature, the City sent PSCo its Final Offer to acquire on June 12, 2019. Prior to PSCo’s response to that Final Offer, the City filed its second Petition in Condemnation on June 28, 2019. Sperber Affidavit ¶ 8. In response to Boulder’s pre-condemnation actions described above and throughout 2019, PSCo began preparing for the City’s threatened condemnation, including legal and valuation research, retention of expert witnesses, the further identification of real property interests and other work necessary for the condemnation litigation. Sperber Affidavit ¶ 9. Shortly after the Petition in Condemnation was filed, Boulder also filed a Motion for Protective Order regarding certain exhibits relating to that filing. Sperber Affidavit ¶ 10. Prior to responding to that Motion, PSCo conferred with Boulder and explained that the exhibits were subject to PUC confidentiality orders and agreements prohibiting their use in other proceedin gs without PUC approval and suggested that rather than seeking a protective order from this Court, Boulder should seek an order from the PUC authorizing the use of those exhibits, or alternatively, that Boulder not use the confidential exhibits. Sperber Affidavit ¶ 10. Boulder refused, thus forcing PSCo to spend considerable time evaluating and responding to the Motion, as well as dealing with 6 US.125082914.02 the conundrum of how to prepare for a condemnation case based upon exhibits Boulder was relying upon that the PUC had precluded any party from using in other litigation. Sperber Affidavit ¶ 10. Only after PSCo’s Response was filed did the City ultimately withdraw its Motion for Protective Order and file an Amended Petition in Condemnation removing the confidential exhi bits. See Boulder July 22, 2019 filings. Sperber Affidavit ¶ 10. On August 5, 2019, PSCo filed its Answer, Affirmative Defenses, and Cross-Petition, in which PSCo identified significant property interests impacted by Boulder’s condemnation but not included in the Petition, and further alleged that the City’s Petition was not authorized by law for various reasons. Sperber Affidavit ¶ 11. On August 5, 2019, and consistent with PSCo’s affirmative defenses in its Answer, PSCo also filed a Motion to Dismiss the Petition seeking dismissal for lack of subject matter jurisdiction (the “Motion to Dismiss”). Sperber Affidavit ¶ 12. PSCo’s Motion to Dismiss once again pointed out the PUC’s exclusive jurisdiction over the separation of the two systems and the fact that Boulder had already raised – and lost – on the issue of whether it could move forward with condemnation before a PUC decision. PSCo also filed a contested Motion for an early case management conference and a hearing pursuant to C.R.S. § 38- 1-105 seeking to allow the parties to prepare for and conduct a hearing if needed to determine PSCo’s other legal challenges. Sperber Affidavit ¶ 12. While these various motions were pending, the PUC and International Business Machines Corporation (“IBM”) sought to intervene in the case and moved to dismiss the Petition on similar grounds as PSCo. Sperber Affidavit ¶¶ 13-14. On September 4, 2019, the Court entered an Order granting PSCo’s Motion to Dismiss the Petition for lack of subject matter jurisdiction, with the Court adopting PSCo’s legal reasoning and conclusions as its own. Sperber Affidavit ¶ 15. 7 US.125082914.02 IV. ARGUMENT A. When a condemnor is not authorized to condemn, C.R.S. § 38-1-122(1) entitles landowners to all reasonable fees incurred as a result of the improper condemnation. Under C.R.S. § 38-1-122(1), a court shall reimburse a property owner for all reasonable fees and costs incurred when a petitioner brings an unauthorized condemnation action: “If the court finds that a petitioner is not authorized by law to acquire real property or interests therein sought in a condemnation proceeding, it shall award reasonable attorney fees, in addi tion to any other costs assessed, to the property owner who participated in the proceedings.” See also Platte River Power Authority v. Nelson, 775 P.2d 82, 83 (Colo. App.1989) (attorney fees awarded where case dismissed because of inadequate description of property); Billington v. Yust, 789 P.2d 196 (Colo. App. 1989) (attorney fees awarded when case for private way of necessity dismissed). “The purpose of § 38–1–122 is to compensate a property owner who is required to incur costs when the condemning authority does not proceed properly.” Fowler Irrevocable Tr. 1992-1 v. City of Boulder, 992 P.2d 1188, 1199 (Colo. App. 1999), aff'd in part, rev’d in part, 17 P.3d 797 (Colo. 2001). See also Leslie A. Fields, Colorado Eminent Domain Practice 184, 2nd Ed. (CLE in Colo., Inc. 2017) (“C.R.S. § 38-1-122(1) mandates the payment of respondent’s reasonable attorney fees against the petitioner when the condemnation action is successfully dismissed on any legal ground, not just for lack of legal authority to condemn.”). Here, PSCo incurred numerous fees and costs dating back at least to December 4, 2018, when Boulder adopted its ordinance authorizing condemnation of PSCo’s property before the PUC made its determination about assets for transfer. Its outside eminent domain counsel alone accrued more than $900,000 in fees during that time at its standard hourly rates. Sperber Affidavit ¶ 29. 8 US.125082914.02 PSCo has also incurred substantial costs on other outside counsel, expert witnesses, and internal legal and business resources that would be recoverable. PSCo, however, is opting to seek recovery of only a fraction of its fees and costs at this juncture. For example, it is not seeking fees or costs incurred to respond to Boulder’s Notice of Intent and pre-filing threats of condemnation. Moreover, since Boulder has stated that it intends to continue pursuing its municipalization efforts, PSCo is willing to refrain from seeking fees now that may have some use in future condemnation litigation.2 Finally, PSCo is not currently seeking any of the significant fees it has incurred relating to the PUC proceedings, its fees or costs associated with other outside counsel and experts, or the considerable legal and business time and resources expended by PSCo itself as a result of Boulder’s pre- and post-filing condemnation activities. Instead, PSCo seeks only $210,748.15 in fees at this juncture.3 As discussed in detail below, these fees were necessary to defend against Boulder’s improper condemnation efforts and were incurred as a direct result of Boulder’s decision to prematurely pursue condemnation now rather than waiting until the PUC issues a decision designating the assets that can be the subject of a condemnation case. The work associated with the claimed fees will not be transferable to any future condemnation case because they relate only 2 PSCo reserves the right to seek those fees and costs in any future condemnation action Boulder may file. PSCo would be entitled to those fees if Boulder, once again, proceeds improperly and the case is dismissed or if PSCo recovers 130% or more of Boulder’s final written offer before filing any future condemnation action. C.R.S. § 38-1-122. 3 All the charges reflected in Sperber Affidavit Exhibit 3 through September 30, 2019 have been billed to PSCo and have been or will be paid by PSCo to our firm. Sperber Affidavit Exhibit 3 lists only the attorney fees that have been incurred through September 30, 2019. PSCo reserves the right to supplement this request with any additional fees to be incurred in pursuing these and other post-trial matters. 9 US.125082914.02 to specific litigation activities required by this action. They should therefore be awarded in their entirety. Sperber Affidavit ¶¶ 31-33. B. PSCo’s Attorney Fees Were Reasonable The attorney fees claimed by PSCo are reasonable. Under Colorado Rule of Professional Conduct 1.5, the factors to be considered in determining the reasonableness of attorney fees include: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. The factors most relevant to PSCo’s fee request are (1), (3), (4), and (7). As discussed below and as further documented in the Sperber Affidavit, all of these factors demonstrate that the fees PSCo seeks are reasonable. 1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly all support PSCo’s fee request. Boulder’s municipalization effort has been ongoing for almost a decade and, as described above, involves highly valuable assets and rights to serve. Boulder made a “final offer” of $82 million to acquire PSCo’s property before filing the case and has admitted that it will also need to incur approximately $100 million in costs to separate the utility system. Sperber Affidavit ¶¶ 8, 17. PSCo contends that the just compensation owed for the taking of its property and business is significantly higher. 10 US.125082914.02 The property Boulder seeks to acquire is extraordinary in its scope and complexity. The City’s Petition cites to a 1,597-page spreadsheet identifying just the electric distribution facilities the City sought to acquire from PSCo, Petition ¶ 24(A), and there are millions of lineal feet of right of way and real property interests involved. Many issues the parties will face if municipalization moves forward will be matters of first impression because there have been very few municipal condemnations of electric distribution systems in the modern era, and none in Colorado. Sperber Affidavit ¶ 17. The amount in dispute and the novelty and complexity of the legal, valuation, engineering, and utility issues raised in this matter necessitates hiring lawyers with significant and longstanding expertise in eminent domain and related utility work. A case of this magnitude also requires staffing it with a large number of lawyers, but each was tasked with specific areas of responsibility to efficiently address the multitude of issues involved. Sperber Affidavit ¶¶ 26, 31. As described above, Boulder’s actions also significantly increased the fees incurred in this case. Its reliance upon confidential exhibits from the PUC proceedings, including exhibits describing property still in dispute at the PUC, required a significant amount of work and added complexity to the proceedings. And its premature filing and insistence on moving forward as quickly as possible with this case in the face of many unknowns also increased costs and required PSCo to prepare for broader legal challenges, case management, and valuation issues at the same time it incurred costs associated with the Motion to Dismiss. Sperber Affidavit ¶¶ 26, 31. All of the time spent on the legal work PSCo seeks to recover was reasonable, necessary, and incurred as a result of Boulder’s improperly initiated condemnation proceedings. 11 US.125082914.02 2. The rates charged were reasonable. The Colorado Supreme Court has held that “attorneys are entitled to an award of reasonable attorney fees at market rates for attorneys of comparable skill, experience and reputation.” Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352, 387 (Colo. 1994) (emphasis supplied). An attorney fees award carries a “strong presumption of reasonableness” if it is based on the “number of hours reasonably expended multiplied by a reasonable hourly rate.” Balkind v. Telluride Mountain Title Co., 8 P.3d 581, 587-88 (Colo. App. 2000); see also Double Oak Constr., L.L.C. v. Cornerstone Dev. Int’l, L.L.C., 97 P.3d 140, 152 (Colo. App. 2003). Appropriate bases to establish that a billing rate is reasonable in the community include testimony by the billing attorney, billing records, biographical information for the attorneys, and evidence of billing rates at other firms. See Madison Capital Co. v. Star Acquisition VIII, 214 P.3d 557, 561 (Colo. App. 2009) (affidavits of counsel); Roget v. Grand Pontiac, Inc., 5 P.3d 341, 347 (Colo. App. 1999) (testimony of the attorney); P&M Vending Co. v. Half Shell of Boston, Inc., 579 P.2d 93, 95-96 (Colo. App. 1978) (testimony of the attorney); Crow v. Penrose-St. Francis Healthcare Sys., 262 P.3d 991, 999 (Colo. App. 2011) (billing records, affidavit from counsel, biographical information for counsel, and a sampling of hourly rates charged by other firms around the country). As discussed above, the complexity of this case, novelty, and amounts in controversy requires counsel who are experienced and well-versed in eminent domain and valuation issues. The attorneys for which PSCo is seeking partial fee recoveries at this time have a combined 66 years of experience on eminent domain matters and have additional specialized knowledge regarding utility systems, property rights, and other related issues as a result of representing PSCo 12 US.125082914.02 for many years in condemnation cases as both condemnor and condemnee. Sperber Affidavit ¶ 26. Lead counsel, Jack Sperber has been handling condemnation matters for more than 25 years and has been involved in some of the largest and most complex condemnation proceedings in this state. Sperber Affidavit ¶¶ 18-21. Attachments to the Sperber Affidavit include biographical information for PSCo’s attorneys (Exs. 1 and 2), information about rates of comparable law firms, and an itemized list of redacted fee entries documenting the time spent by PSCo’s attorneys for the specific activities PSCo seeks recovery for (Ex. 3). These materials demonstrate that FBD’s standard hourly billing rates for the attorneys involved in this case are reasonable and within the range of fees charged by attorneys in comparable law firms and with comparable skill and experience in the community. Sperber Affidavit ¶¶ 22-29. The reasonableness of those rates is further demonstrated by the fact that PSCo is not seeking recovery of its law firm’s standard hourly rates, but instead all fees have been discounted by at least 15% based upon a fee agreement negotiated on a firm-wide basis with PSCo’s parent company Xcel Energy in recognition of the large volume of work the firm does across many offices and for many different Xcel Energy entities. Sperber Affidavit ¶¶ 22-24, 29. The total fees were reduced even further still – by approximately another 10% – due to billing judgment and other write offs, thus reducing PSCo’s legal fees by a total of approximately 25%. Sperber Affidavit ¶¶ 29-30. 3. The results obtained justify the fees requested. Finally, the results obtained justify PSCo’s request. PSCo’s legal efforts and time spent were successful in all regards. Boulder ultimately withdrew its Motion for Protective Order and amended its Petition to address the concerns raised in PSCo’s Response to that Motion. And, more 13 US.125082914.02 importantly, this Court ultimately dismissed Boulder’s condemnation action in its entirety, relying on the arguments in PSCo’s Motion to Dismiss. Not all fees being claimed were incurred directly to respond to these specific motions. But all these fees, and many times more in total fees and costs, would not have needed to be incurred at all if Boulder had not moved forward with this case before it was lawfully allowed to do so. In an action of this magnitude, the small fraction of those fees that PSCo is seeking reimbursement for here are easily justified as a reasonable and necessary outcome of Boulder’s action. CONCLUSION For the foregoing reasons, PSCo requests that the Court enter an Order: (1) finding PSCo’s attorney fees of $210,748.15 were reasonably incurred; (2) requiring Boulder to reimburse PSCo for those amounts pursuant to C.R.S. § 38-1-122(1); and (3) holding that PSCo has reserved its right to claim all other fees and costs incurred as a result of Boulder’s municipalization and condemnation efforts not claimed in this motion should Boulder seek to file yet another condemnation case and it is ultimately determined that PSCo is entitled to fees and costs pursuant to C.R.S. § 38-1-122(1), (1.5), or other relevant law. Respectfully submitted October 16, 2019. FAEGRE BAKER DANIELS LLP /s/ John R. Sperber John R. Sperber, Atty. Reg. No. 22073 Sarah M. Kellner, Atty. Reg. No. 38111 Attorneys for Respondent Public Service Company of Colorado 14 US.125082914.02 CERTIFICATE OF SERVICE The undersigned certifies that on October 16, 2019, a copy of the foregoing RESPONDENT’S MOTION FOR ATTORNEY FEES was served on all counsel of record by the methods listed below: Attorneys for Petitioner, City of Boulder: Office of the Boulder City Attorney Thomas A. Carr Kathleen E. Haddock P.O. Box 791 Boulder, CO 80306 carrt@bouldercolorado.gov haddockk@bouldercolorado.gov ( ) First Class Mail ( ) Hand Delivery ( ) Overnight Delivery (X ) CCES ( ) E-Mail Hamre, Rodriguez, Ostrander & Dingess, PC Donald M. Ostrander Richard F. Rodriguez 3600 S. Yosemite Street, Suite 500 Denver, CO 80237 dostrander@hrodlaw.com rrodriguez@hrodlaw.com ( ) First Class Mail ( ) Hand Delivery ( ) Overnight Delivery (X ) CCES ( ) E-Mail Attorney for Defendant, Paul Weissmann, in his official capacity as Treasurer of Boulder County Olivia D. Lucas Boulder County Attorney P.O. Box 471 Boulder, CO 80306 olucas@bouldercounty.org ( ) First Class Mail ( ) Hand Delivery ( ) Overnight Delivery (X ) CCES ( ) E-Mail /s/Lisa Riggenbach Legal Administrative Assistant DISTRICT CO U RT, BO U LD ER CO UN TY , CO LO RA D O C ourt Address: 1 777 6TH Street, Boulder Colora do 80302 303-441-3750 Petitioner: TH E CIT Y OF BO U LD ER, a Colora do Home Rule City, V . Respondents: PU BLI C SERV ICE CO M PAN Y OF CO LO RA D O , a C olora do C orpora tion, d/b/a X CEL EN ERG Y ; M O R G AN GU A RA N TY TRU ST CO M PA N Y OF N EW YO RK ; and PA U L W EISSM A NN , in his offi cial capacity as T reasur er of Boulder County. Attorneys for Respondent, Public Service Company of Colorado, a Colorado Corporation John R. Sperber, A tty. Reg. N o. 22073 Sara h M . K ellner, A tty. Reg. N o. 38111 F A EG RE BA K ER DA N IELS LLP 1144 Fifteenth Street, Suite 3400 D enver, Colora do 80202 Telephone: (303) 607-3500 Fax: (303) 607-3600 Em ail: jack.sperber@ FaegreBD .com sara h.kellner@ fa egrebd.com COURT USE ONLY Case Number: 19 CV 30637 Division: 5 AFFID A V IT OF JO H N R. SPER BER RE G A RDING M O TIO N FO R A TTO RN EY FEES 1 US.124729357.08 STATE OF COLORA DO ) ) ss. CIT Y AND COUN TY OF DENVER ) I, John R. Sperber, being first duly sworn, under penalty of perjury and being of lawful age, state as follows: 1. My legal name is John R. Sperber, but I go by my nickname, "Jack." I am a partner in the law firm ofFaegre Baker Daniels LLP ("FBD"), 1144 Fifteenth Street, Suite 3400, Denver, Colorado 80202. I have been licensed to practice law in the State of Colorado since 1992. I am the lead attorney representing Respondent, Public Service Company of Colorado ("PSCo"), in the above-captioned action filed by the City of Boulder (the "City"). I have personal knowledge of the facts in this Affidavit. 2. FBD is an AmLaw 100 law firm with approximately 700 professionals in 15 locations in the United States, the United Kingdom, and China. FBD currently has approximately 72 attorneys located in its two Colorado offices in Denver and Boulder. FBD's real estate litigation group in Colorado currently includes eleven lawy ers and a paralegal all specializing in eminent domain matters and closely related forms of real estate litigation CASE BACKGROUND AND PROCEDURAL HISTORY 3. The City's efforts to municipalize PSCo's electric facilities and real property date back almost a decade and have resulted in litigation in multiple forums over time, including extensive litigation at the Colorado Public Utilities Commission ("PUC"). In two orders issued in 2013, the PUC ruled that the City could not move forward with acquisition of PSCo's assets - including through condemnation - unless and until the PUC determ ined that the separation could be accomplished in a manner that would "protect the reliability, safety, and service quality of electricity services provided to unincorporated Boulder County, and to safeguard the integrity of the system statewide." See October 9, 2013 PUC Order, attached to PS Co's Motion to Dismiss as Exhibit 3; see also December 11, 2013 PUC Order, attached to PSCo's Motion to Dismiss as Exhibit 4. 4. Boulder appealed the PUC Orders to the Boulder District Court. While that appeal was pending, the City filed its first Petition in Condemnation on July 17, 2014. On January 14, 2015, the Boulder District Court affirmed the PU C's Orders, confir ming the PUC has exclusive jurisdiction over what assets and real property will be transferred as any part of Boulder's municipalization efforts. See Exhibit 1 to Motion to Dismiss. Shortly thereafter, on February 13, 2015, the Boulder District Court dismissed Boulder's first condemnation action, making clear that the PU C's determination about "how facilities should be assigned, divided or jointly used to protect the utility system's effectiveness, reliability, and safety" must occur "prior to the City's condemn ation of property for utility municipalization." See February 13, 2015 Order in 2014CV30890, attached to PSCo's Motion to Dismiss as 2 US.124729357.08 Exhibit 2. Although it was entitled to its fees under C.R.S. § 38-1-122(1 ) follow ing the first condemnation's dismissal in 2015, PSCo ultimately did not move for fees in that case. 5. In response to these Boulder District Court Orders, the Parties return ed to the PU C and have been engaged in extensive negotiations, litigation, and hearings relevant to the PU C's determ ination of what assets and real pro perty can be subject to tra nsfe r. That determination was not made before Boulder filed this condem nation case, and since this Court's dismissal, the PUC issued an Order on September 30, 2019 confir m ing its prior ruling that Boulder cann ot condemn any PSCo assets inside substations. 6. On December 4, 2018 Boulder passed an ordinance asking its staff to move forward with acquisition negotiations and ultim ately condem nation of PSCo facilities and pro perty interests, all of which was still under review at the PUC, as well as facilities inside substations that the PUC had already denied the tra nsfer of absent agreem ents with PSCo that had not been reached, and an incom plete description of real pro perty interests 7. Then, despite communications between the parties wherein PSCo made clear its position that condemnation and negotiations were prem ature given the pending PU C pro ceedings, on January 31, 2019 the City sent a fo rm al Notice of Intent to PSCo notifying PSCo of its plan to condemn PS Co's pro perty if necessary and authorizing PS Co to obtain an appra isal at Boulder's expense pursuant to C.R.S. § 38-1-121. 8. That Notice of Intent was fo llowed by a written offer to acquire PSCo's pro perty fo r the City's alleged appraised value of $68.5 million sent on April 10, 2019. PSCo responded, again info rming Boulder that it could not negotiate over assets and real pro perty lists that were not final and had not been appro ved for tra nsfer. The City sent PSCo a Final Offer to acquire on June 12, 2019, increasing its offer to $82 million. Prior to PSCo's response to that Final Offer, the City filed its second Petition in Condem nation on June 28, 2019. 9. In response to Boulder's pre-condemnation actions described above and thr oughout 2019, PSCo began preparing fo r the City's threatened condem nation, including legal and valuation research, retention of expert witnesses, the fu rther identification of real pro perty interests and other work necessary fo r the condemnation litigation. 10. Shortly after filing the Petition, the City filed a M otion for Pro tective Order with respect to certain confidential exhibits Boulder was relying upon to describe the pro perty it sought to acquire. I confe rred with Boulder's counsel about the M otion and explained PSCo's view that the exhibits were subject to PUC confidentiality orders and agreem ents pro hibiting their use in other pro ceedings without PU C appro val an d suggested that rather than seeking a protective order from this Court, Boulder should seek an order from the PUC authorizing the use of those exhibits or, alternatively, that Boulder not use the confidential exhibits. Boulder disagreed, thus fo rcing PSCo to spend considera ble tim e evaluating and responding to that M otion. Follow ing PSCo's briefing, the City withdrew 3 US.124729357.08 its M otion fo r Protective Order on July 22, 2019 and filed an Am ended Petition in Condemnation ("Petition") no longer including some of the confidential exhibits. 11. On August 5, 2019, PSCo filed its Answer, Affir m ative Defe nses, and Cro ss-Petition, in which PSCo alleged that the City's Petition was not authorized by law and that the City had therefore not pro ceeded properly in its efforts to condem n PSCo's Pro perty. The Cro ss- Petition also identified numerous additional property rights being impacted by Boulder's taking that had not been included in the Petition. 12. On August 5, 2019, PSCo also filed its M otion to Dismiss the Petition wherein PSCo sought dismissal for lack of subject matter jur isdiction. The City filed its Response to the M otion to Dismiss on August 26, 2019 and PSCo filed its Reply in Support on September 3, 2019. In addition to the M otion to Dismiss and other pleadings, PS Co also filed a contested motion seeking an early case managem ent confe rence and a hearing pursuant to C.R.S. 38-1-105 asking the Court to allow the parties to prepare for and conduct a hearing if needed to determ ine PS Co's other legal challenges. 13. On August 8, 2019, the PUC m oved to intervene in the case and filed a M otion to Dism iss the Petition, asserting that the PUC still retained exclusive subject matter jur isdiction and the Petition was therefo re premature. 14. On August 16, 2019, Intern ational Business M achines Corpora tion ("IB M ") filed a Cro ss Petition to intervene in the condem nation case and a Partial M otion to Dismiss fo r lack of subject matter jur isdiction. 15. On September 4, 2019, the Court entered an Order gra nting PSCo's M otion to Dism iss the Petition for lack of subject matter jur isdiction, with the Court adopting PSCo's legal reasoning an d conclusions as its own. 16. Because the Court gra nted PS Co's M otion to Dismiss, the Court also issued orders ruling that all other pending motions were moot. 17. Any condemnation case that ultim ately pro ceeds will likely involve num ero us issues of first impression under Colorado law and complex and highly contested engineering, opera tional, regulatory, legal and valuation issues and hundreds of millions of dollars are involved. As noted earlier, the City has offered PSCo $82 mill ion for its assets, and has ackn owledged that the costs to separa te the system may be as much as $100 million. ATTORNEY FEE ISSUES 18. I have been licensed to practice law in the State of Colorado since 1992 after graduating from the National Law Center at George Washington University magna cum laude. I have focused my practice for approximately twenty-five years exclusively on eminent domain matters and closely-related real estate litigation. I have experience representing a wide variety of private and governmental clients in condemnation proceedings in Colorado and around the country. 4 US.124729357.08 I estimate that I have been involved in more than 1,000 separate condemn ation cases, an d have represented clients in many valuation trials, imm ediate possession hearings, in lim ine hearings, aban donm ent motions, and other disputed evidentiary hearings befo re courts, valuation comm issions, an d juri es. 19. I previously served as the leader ofFBD's Real Estate Litigation Team, and now serv e on the firm 's M anagem ent Board and on its Executive Comm ittee. I was named by Best Lawy ers in Am erica as the Denver Em inent Domain an d Condemn ation Lawy er of the Year in 2013 an d 2018 and as a "Lawy er of the Year" by Law W eek Colorado in 2018. I have been recognized by Best Lawy ers in Eminent Domain and Condemn ation Law from 2008-2018 and as an Eminent Domain Colora do Super Lawy er from 2006-2018. M y firm was recognized in the 2013 Edition of the U.S. News & World Report Best Law Firms Survey as the National Eminent Domain and Condemnation Law Firm of the Year, and we received "first-tier" rankings for Eminent Domain and Condemnation Law in Colorado and several of our other offices. I have served as a co-chair of ALI-CLE's National Condemnation 101 CLE Conference for the last twelve years, and I regularly write and speak on eminent domain matters. 20. In 2004, I gave a presentation involving a nation-wide survey of each state's treatment of attorney fees and costs in eminent domain proceedings. As a part of that presentation, I researched statutes and common law in each state regarding the award of attorney fees and costs and spoke with many practitioners around the country regarding their experience with the award of attorney fees and costs in their jurisdiction. I have generally stayed abreast of those issues since that time. Finally, I am a member of the Counselors of Real Estate and am the Colorado representative of Owner's Counsel of America. A copy of my professional biography is attached to this affidavit. See Exhibit 1. 21. I have served as an expert witness on several occasions regarding attorney fee and bill of cost issues in Colorado eminent domain cases. I have submitted Bills of Costs and Motions for Attorney Fees many times. I have also reviewed numerous Bills of Costs and Motions for Attorney Fees filed by other law firms, and I am generally familiar with both hourly rates and the total fees and costs charged by attorneys, appraisers, and other expert witnesses in Colorado eminent domain proceedings. 22. Due to the volume of work FBD does for Xcel Energy and its related entities, including PSCo, Xcel Energy has negotiated a 15% discount to our standard hourly rates for all work done by the firm and, in some instances, further discounts to the standard rates of our timekeepers. FBD bills PSCo on an hourly rate basis in this matter and records time in 6- minute increments and according to specific billing codes and guidelines. Those billing codes and guidelines prohibit billing for certain types of activities and expenses, thus leading to further reductions in time billed beyond the other discounts identified above. 5 US. 124729357.08 2 3 . F B D re p resen ts P S C o in a nu m b er o f con dem nation pro ceedings in C olora do each year, b o th w h en P S C o is actin g as a con dem n or and w hen P S C o 's pro pert y interests are acquired b y g ov ernm en tal en tities. T h at exp erien ce h as giv en our fir m a relatively unique u n d e rstan d in g o f th e in tera ctio n b etw een em in en t dom ain issues and utili ty system s, p ro p ert y rig h ts, regu latory issu es and sim ilar m att ers that are relevant to B oulder's thr e ate n e d tak in g o f P S C o 's electric d istrib ution b u sin ess. 2 4 . T h e d isco u n ted h o ur ly ra tes o f F B D pro fe ssion als paid by P S C o on this m atter are low er th a n th e stan d ard h ou rl y ra tes con sistently paid b y our cl ients in em inent dom ain cases here in C o lorad o . In d eed , fo r sev era l y ears, w e have had en ou gh em inent dom ain w ork at our sta n d a rd (i.e. un discou nted) ra tes th at in th e last year, w e have had to hire thr ee additional la wy e rs to keep up w ith d em an d . I b elieve this is the best evidence of the reason ableness o f o ur ra tes. 2 5 . E ac h y ear th e m anagem en t of F B D , in con sultation w ith part ners and staff an d aft er rev iew in g g en era l sur v ey s o f th e p ra ctices o f sim ilar fir m s w ithin the m arkets w here the F irm pra ctices, rev iew s and establi sh es the standard ra tes fo r its att orn eys and para legals so th at ou r ra tes are com p ara b le to and com petitiv e w ith the ra tes charged by att orn eys and p a ra leg als at fi rm s sim ilar to F B D in term s of size, expert ise, areas of pra ctice, and the re lev an t g eo g ra ph ic m ark ets. T h e sur veys w e have receiv ed indicate that, fo r part ners in p e e r fir m s w ith m y y ears o f exp erien ce, m y 2 0 19 standard hour ly ra te of $720 per hour is sli g h tly ab o v e th e m ed ian ra te o f $69 5. M y d iscoun ted hour ly ra te fo r PSC o is $6 12 , w hich is w ell belo w m y stan dard ra te and w ell b elow the m edian ra te of $695. O ur part ner and a sso ciate ra tes g en era ll y fa ll b elo w the m edian o f all surveyed fir m s. A nd our ra tes are sig n ifi can tly lo w er than th e avera ge hour ly ra te d ata fo r all A m L aw l 00 surveyed fir m s that h a v e a D en v er o ffi ce, typ icall y placin g us in the 3rd qu art ile or low er. T his is consistent w ith o ur ex p erien ce in p rior y ears as w ell. 2 6 . O th e r attorn ey s fr o m F B D w h o w ere staffed on th is m atter and did w ork fo r the port ion of th e fe es P S C o seek s reim b ur sem ent fo r are P art n ers, B ra n dee C asw ell and Sara h K ell n er; C o u n sel, M att h ew C lark ; an d A sso ciates, K atie G ra y, Sean M etherell , and R achel B u rkh art . T h ere w as also som e lim ited assistance fr om D avid K uosm an, a real estate p a rt n e r, n ecessary to resp on d to requ ests fo r in fo rm ation fr om B ould er about PSC o's in d e n tur e. A case o f th is m ag n itude and com plex ity req uires a large num ber of law yers, b u t th e y w e re b ro k en in to team s to effi ciently d eal w ith the m ultiple issues fa cing PSC o in th e c o n d em n atio n case and to avoid d u plication o f w ork . T he discounted hour ly ra tes ch arg e d to P S C o b y the abov e attorn ey s ra nged fr om $53 1.2 5 to $36 1.25. B iogra phical in fo rm atio n fo r each o f th ose att orn ey s is att ach ed as Exhibit 2. 27. The standard billing rate of my senior paralegal, Pamela Hollen, is $300 per hour. Ms. Hollen has 22 years of experience working on eminent domain cases and has a comprehensive knowledge of eminent domain procedures and litigation activities. The hourly rate that was charged for Ms. Hollen in connection with this case is reasonable in 6 US.124729357.08 this community based on her skill and experience. Ms. Hollen's discounted hourly rate is $255. 28. Based upon my general experience as described above, my knowledge of the hourly rates charged by other attorneys with similar background and experience in the Colorado offices of comparable firms, and the other information described below, I believe the hourly rates charged to PSCo in this case are reasonable in this community based upon the background, skill, and experience of the professionals involved. 29. The total fees incurred by my firm for this matter since from January 1, 2019 through September 30, 2019 at our standard hourly rates is $902,244. After applying the Xcel Energy discount and various other write offs and billing judgment discussed above, the fees billed to PSCo in 2019 to date total $676,689.61, thus bringing the total discount to approximately 25%. PSCo is not seeking reimbursement of all these amounts. Instead, it seeks reimbursement for $210,748.15 in fees. 30. The time actually recorded in this case and billed to PSCo for only the $210,748.15 in fees sought is set forth in the accounting report spreadsheet prepared by FBD's finance department attached as Exhibit 3. The hourly rates shown reflect our standard rates before the discount is applied and we have removed various time entries that were ultimately not charged to the client due to the other billing guideline and billing judgment write-offs referenced above. The spreadsheet includes itemized time entries for the services rendered and the time spent from contemporaneous time records that were maintained by timekeepers at FBI? in the ordinary course of business and it is a standard report that can be created by our finance department for any matter based upon those records. Material covered by the attorney-client and work product privilege has been redacted, but FBD will make unredacted time entry narratives available for in-camera review should it be necessary to do so. 31. The 430.6 hours of time billed by FBD for attorney and paralegal services claimed, as reflected · in Exhibit 3, were reasonable and necessary, particularly in light of the complexity of this case. As explained in further detail in the Motion for Attorney Fees, this matter involved a number of significant legal disputes that required a substantial investment of time for motions practice and multiple rounds of briefing on disputed legal issues related to the City's ability to lawfully condemn PSCo's Property at this time. More importantly, the magnitude and complexity of this case cannot be overstated. It involves the acquisition of an entire electric utility business within Boulder city limits, including a nearly 1,600-page list of facilities, millions of lineal feet of right of way and other real property rights, and hundreds of millions of dollars are in dispute. The case presents complex legal, engineering, regulatory, and valuation problems and many of the issues the parties will face will be matters of first impression because there have been very few condemnations of electric utility systems in the modern era, and none in Colorado. 7 US.124729357.08 32. All the charges reflected in Exhibit 3 through September 30, 2019 have been billed to PSCo and have been or will be paid by PSCo to our firm. Exhibit 3 lists only the attorney fees that have been incurred through September 30, 2019. PSCo reserves the right to supplement this request with any additional fees to be incurred in pursuing these and other post-trial matters. 33. The total amount of attorney fees that PSCo seeks to have reimbursed is $210,748.15, all of which were reasonable and necessarily incurred because of the City's improper condemnation action. FURTHER AFFIANT SA YETH NAUGHT. Dated: October 16, 2019. CITY AND COUNTY OF DENVER) STATE OF COLORADO ) ss. ) Subscribed and sworn to before me this 16th day of October 2019 by John R. Sperber. Witness my hand and official seal. [SEAL] BRENDA MCHENRY NOTARY PUBLIC STATE OF COLORADO 1 NOTARY ID 19904011371 . 'V r;o~.n~1l!SSION .EX Pi RES JU_ 1E_~~' :?On, DATED this 16th day of October 2019. 8 US.124729357.08 F A EG RE BAKE R DANIELS LLP Isl John R. Sperber John R. Sperber, Atty. Reg. No. 22073 Sarah M. Kellner, Atty. Reg. No. 38111 Attorneys for Respondent Public Service Company of Colorado 9 US.124729357.08 CER TIFICATE O F SERVICE The undersigned certifies that on October 16, 2019, a copy of the foregoing AFFIDAVIT OF JOHN R. SPERBER REGARDING MOTION FOR ATTORNEY FEES was served on all counsel of record by the methods listed below: Attorneys for Petitioner, City of Boulder: Office of the Boulder City Attorney Thomas A. Carr · Kathleen E. Haddock P.O. Box 791 Boulder, CO 80306 carrt@bouldercolorado.gov haddockk@bouldercolorado.gov Hamre, Rodriguez, Ostrander & Dingess, PC Donald M. Ostrander Richard F. Rodriguez 3600 S. Yosemite Street, Suite 500 Denver, CO 8023 7 dostrander@hrodlaw.com rrodriguez@hrodlaw.com Attorney for Defendant, Paul Weissmann, in his official capacity as Treasurer of Boulder County Olivia D. Lucas Boulder County Attorney P.O. Box 471 Boulder, CO 80306 olucas@bouldercounty.org ( ) First Class Mail () Hand Delivery ( ) Overnight Delivery (X) CCES () E-Mail ( ) First Class Mail ( ) Hand Delivery ( ) Overnight Delivery (X) CCES () E-Mail ( ) First Class Mail ( ) Hand Delivery . ( ) Overnight Delivery (X) CCES () E-Mail ls/Lisa Riggenbach Legal Administrative Assistant 10 US.124729357.08 EXHIBIT 1 Overview Jack Sperber has been representing private owners and condemning entities in eminent domain proceedings for 25 years. He does this work around the country, and has been involved in more than 30 trials, numerous evidentiary hearings, and more than 20 appellate arguments. He focuses primarily on: Serving as national eminent domain counsel to clients with large real estate portfolios. Representing property owners in complex, high-value condemnation litigation. Representing energy and utility companies in corridor acquisitions and other large energy projects and in defending against municipalization and other condemnation attempts affecting their own property. Condemnation Proceedings Jack represents landowners, developers, tenants and other entities in all aspects of eminent domain proceedings. Although he primarily represents private owners facing condemnation, he also works with condemnors. He understands the objectives of both sides and can readily recognize and anticipate issues his clients may encounter. He has counseled national clients on eminent domain issues in more than 25 states, ranging from Fortune 500 companies to individual property owners. Corridor Acquisitions Jack R. Sperber Partner jack.sperber@FaegreBD.com Denver D +1 303 607 3623 F +1 303 607 3600 1 | Jack R. Sperber | Professionals | Faegre Baker Daniels Jack represents utilities and energy companies in the acquisition of utility corridors and right-of-way for electric transmission lines, oil and gas pipelines, water pipelines, and other large energy facilities. He counsels clients and manages projects from inception through acquisition of the final parcel — whether by voluntary agreement or through disputed condemnation proceedings ending in the appellate courts. Jack also represents utilities facing the condemnation of their assets by governmental entities seeking to use the assets to form their own municipal utility, and in defending against other takings of their property. Firm Leadership Jack sits on both the firm’s management board and its executive committee. Services & Industries Real Estate, Construction & Environmental Litigation & Dispute Resolution Real Estate & Construction Disputes Eminent Domain Energy & Natural Resources Renewable Resources Utilities Natural Resources Credentials Bar Admissions Colorado Court Admissions U.S. Court of Appeals for the Tenth Circuit U.S. District Court for the District of Colorado Education George Washington University Law School 2 | Jack R. Sperber | Professionals | Faegre Baker Daniels J.D. with high honors (1992) Adams State College B.A. magna cum laude (1988) Experience June 2018 Property Owner Awarded More than $28.5M Just Compensation in City Condemnation Action June 2018 Xcel Energy Defends Against City's Attempt to Municipalize its Electric Distribution System October 2017 Real Estate Developer Awarded $4.1M in City Condemnation Action April 2015 Property Owners Receives Condemnation Award Far Exceeding Town Offer for Recreational Trail 2014 Truck Fleet Leasing Company Obtains $6.5M Settlement in Caltrans Condemnation Action 2005 Colorado Town Defends Condemnation of 572 Acres of Public Space Leadership & Community Professional Associations Colorado Supreme Court’s Civil Jury Instruction Committee Honors The Best Lawyers in America — Eminent Domain and Condemnation Law, 2008-20 (Denver Eminent Domain and Condemnation Lawyer of the Year, 2013) Colorado Super Lawyers — Eminent Domain, 2006-19; Real Estate, 2006-11 Counselors of Real Estate — Member 3 | Jack R. Sperber | Professionals | Faegre Baker Daniels EXHIBIT 2 Overview Brandee Caswell leverages litigation and project management expertise to resolve complex, high-value real estate disputes. Brandee leads the firm’s real estate litigation practice. Brandee partners with clients on high-impact projects and matters that are essential to their business objectives, from real estate development and finance disputes in excess of $75 million to urban renewal projects for shopping centers to energy corridor projects over 100 miles long. She is an experienced first-chair trial lawyer who has successfully litigated cases in both state and federal court in numerous jurisdictions including Colorado, California, Illinois, Florida, Oklahoma, Texas and Wyoming. Brandee represents clients in complex real estate, eminent domain and finance litigation. She has expertise in the Colorado Common Interest Ownership Act (CCIOA), tax increment and municipal/special district financing, and oil and gas disputes. Brandee L. Caswell Partner brandee.caswell@FaegreBD.com Denver D +1 303 607 3826 F +1 303 607 3600 1 | Brandee L. Caswell | Professionals | Faegre Baker Daniels Services & Industries Litigation & Dispute Resolution Real Estate, Construction & Environmental Eminent Domain Privacy & Cybersecurity Real Estate & Construction Disputes Securities & Financial Litigation Energy & Natural Resources Financial Services Banking & Finance Natural Resources Renewable Resources Credentials Bar Admissions Minnesota Colorado Court Admissions U.S. Supreme Court U.S. Court of Appeals for the Tenth Circuit U.S. District Court for the District of Colorado Clerkships Kansas Supreme Court, Hon. Fred N. Six, 1998-2000 Education University of Kansas School of Law J.D. Law Review (1998) Colorado State University B.A. Dean's List (1995) 2 | Brandee L. Caswell | Professionals | Faegre Baker Daniels Experience 2018 Xcel Energy Acquires Right of Way for Major Energy Facilities December 2017 Minnesota Landowners Quadruple Just Compensation in Eminent Domain Challenge October 2017 Real Estate Developer Awarded $4.1M in City Condemnation Action Leadership & Community Pro Bono National Veterans Legal Services Program – Lawyers Serving Warriors Program Civic Activities Downtown Denver YMCA — Volunteer of the Year, 2011 and 2013 University of Kansas Law School — Board of Governors YMCA of Metropolitan Denver — Board of Trustees, 2012-Present Downtown YMCA — Board of Advisors (past Chair) Firm Leadership Real Estate Litigation Practice — Leader Honors Best Lawyers —Eminent Domain and Condemnation Law, 2020 Law Week Colorado — Top Litigator, 2017 Super Lawyers—2014-19 Super Lawyers, 'Rising Stars' — 2011-2012 Denver Business Journal — Forty Under 40, 2010 3 | Brandee L. Caswell | Professionals | Faegre Baker Daniels Overview Sarah Kellner advocates for clients to achieve favorable outcomes for their real estate projects and disputes. She focuses on complex real estate advocacy, including land use, real property tax appeals, landlord-tenant litigation, and condemnation, bringing her significant litigation experience to the table to help her clients achieve favorable results in their real estate matters. Eminent Domain In her eminent domain work, Sarah counsels both condemnor and landowner clients. For condemnors, she oversees projects and negotiations from inception (including during the planning and engineering phases) through acquisition. She also represents developer and individual landowners, utility and energy companies, companies with nationwide property portfolios, and retail centers in challenging eminent domain actions and achieving maximum just compensation awards. Property Tax Appeals Sarah also helps companies challenge their real property tax assessments and valuations. With significant valuation experience, she advocates for her clients at all levels of the tax appeal process, including proceedings before the Colorado Board of Assessment Appeals (BAA) and through the abatement process. Land Use In her land use work, Sarah assists clients through development hurdles and works with municipalities and other government entities to get favorable project results for her clients. She works with landowners through the approval process when Sarah Kellner Partner sarah.kellner@FaegreBD.com Denver D +1 303 607 3808 F +1 303 607 3600 1 | Sarah Kellner | Professionals | Faegre Baker Daniels roadblocks arise, helping position them for potential litigation if their land use approvals are denied. Her advocacy on behalf of her clients includes work at both the local level as well as in court proceedings, including Rule 106 and declaratory judgment actions. Services & Industries Litigation & Dispute Resolution Real Estate, Construction & Environmental Appellate Advocacy Class Actions Eminent Domain Real Estate & Construction Disputes Property Tax Management, Appeals & Disputes Energy & Natural Resources Credentials Bar Admissions Colorado Court Admissions U.S. Court of Appeals for the Tenth Circuit U.S. District Court for the District of Colorado Education University of Colorado Law School J.D. (2006) Wake Forest University B.A. with honors (2003) 2 | Sarah Kellner | Professionals | Faegre Baker Daniels Experience 2018 Xcel Energy Acquires Right of Way for Major Energy Facilities April 2015 Property Owners Receives Condemnation Award Far Exceeding Town Offer for Recreational Trail May 2013 Sinclair Medicine Bow Pipeline Expansion Project December 2011 Right-of-Way Acquisition by Black Hills Energy Company Honors Law Week Colorado — Barrister's Best: People’s Choice, Best Real Estate Attorney, 2018 Faegre Baker Daniels – Pro Bono Honor Roll, 2017-18 Faegre Baker Daniels — Baker Benson Pro Bono Award, 2015 3 | Sarah Kellner | Professionals | Faegre Baker Daniels Overview Matthew Clark represents clients on commercial litigation and appeals, including complex contract, creditor/debtor, class action, construction, real estate, trade secret, intellectual property and manufacturing disputes. Matthew also advises financial institutions, energy companies and service providers, and mineral rights owners on secured oil and gas lending, mineral rights, and lien issues. Financial Litigation Matthew assists financial services clients by: Defending national banks against claims of wrongful foreclosure and wrongful/predatory lending Protecting lender lien interests in lawsuits brought by third parties against borrowers, such as condominium lien foreclosures, partition actions, adverse possession actions and drug forfeiture proceedings Enforcing borrower loan obligations Defending banks and payees against claims involving check deposits and electronic funds transfers Past Experience Prior to law school, Matthew worked as a technology manager and brand consultant at a brand strategy firm, focusing on the food and beverage, packaged consumer goods, and technology sectors. Personal Interests Matthew D. Clark Counsel matthew.clark@FaegreBD.com Boulder D +1 303 447 7727 F +1 303 447 7800 1 | Matthew D. Clark | Professionals | Faegre Baker Daniels While studying at the University of Chicago, Matthew was a five-time letterman in soccer and track, earning soccer team defensive MVP. Services & Industries Litigation & Dispute Resolution Appellate Advocacy Class Actions Commercial Disputes E-Discovery & Information Management Insurance Recovery Securities & Financial Litigation Trade Secrets Energy & Natural Resources Financial Services Technology Banking & Finance Natural Resources Privacy & Cybersecurity Credentials Bar Admissions Washington Colorado Court Admissions U.S. Bankruptcy Court, District of Colorado U.S. Court of Appeals for the Tenth Circuit U.S. District Court for the District of Colorado U.S. District Court for the Eastern District of Washington U.S. District Court for the Western District of Washington Education 2 | Matthew D. Clark | Professionals | Faegre Baker Daniels University of Arizona James E. Rogers College of Law J.D. cum laude, Arizona Law Review (editor-in-chief) (2007) University of Chicago B.A. with honors (1995) Leadership & Community Professional Associations Colorado Bankers Association — 2017 Center for Bank Advocacy Honors Faegre Baker Daniels — Pro Bono Honor Roll, 2014-15 3 | Matthew D. Clark | Professionals | Faegre Baker Daniels Overview Katie Gray represents clients in commercial litigation, with an emphasis on commercial real estate litigation and eminent domain. Eminent Domain Katie represents landowners and condemning entities in eminent domain proceedings. She represents clients on both sides of condemnation cases, allowing her to understand and anticipate both parties’ objectives in a dispute. She also works with appraisers, surveyors, land planners and engineers to understand the projects and properties at issue in her cases. Real Estate Litigation Katie represents companies in disputes involving real estate related contracts and financing arrangements. She’s helped clients to enforce financial covenants and protect revenue streams, resolve commercial lease disputes and manage issues related to owners’ association covenants. Finance and Insurance Litigation Katie also works on complex litigation in the finance and insurance areas. Her representative experience includes: Representing financial institutions in contract- and lien-related disputes. Representing insurers in putative class actions involving insurance coverage, consumer protection and bad faith claims. Katie M. Gray Associate katie.gray@FaegreBD.com Denver D +1 303 607 3693 F +1 303 607 3600 1 | Katie M. Gray | Professionals | Faegre Baker Daniels Services & Industries Litigation & Dispute Resolution Real Estate, Construction & Environmental Eminent Domain Real Estate & Construction Disputes Securities & Financial Litigation Credentials Bar Admissions Colorado Education University of Colorado Law School J.D. Order of the Coif, University of Colorado Law Review (production editor) (2010) Arizona State University B.A. summa cum laude (2003) 2 | Katie M. Gray | Professionals | Faegre Baker Daniels Overview Sean Metherell represents clients in real estate litigation, with a particular focus on eminent domain matters. He has litigated eminent domain matters in Colorado and Minnesota state courts. Eminent Domain Sean represents both landowners and condemning entities in eminent domain proceedings. While he primarily represents private and institutional landowners facing condemnation, Sean also represents energy companies in corridor acquisition projects. Sean has experience as both a lead attorney and as a second chair attorney in eminent domain valuation trials in Colorado and Minnesota state courts. As part of his eminent domain practice, Sean also works with a number of experts, including appraisers, land planners and engineers. Real Estate Litigation Sean represents institutional clients in other disputes involving real property interests. He has represented clients in quiet title actions and mechanic’s lien disputes, and he has successfully resolved a number of cases through negotiated settlement. Personal Interests Outside of his legal practice, Sean enjoys road cycling, hiking and camping with his wife and daughter. He is also an avid supporter of Denver professional sports teams and a fan of professional tennis. Sean J. Metherell Associate sean.metherell@FaegreBD.com Denver D +1 303 607 3742 F +1 303 607 3600 1 | Sean J. Metherell | Professionals | Faegre Baker Daniels Services & Industries Real Estate, Construction & Environmental Litigation & Dispute Resolution Real Estate & Construction Disputes Eminent Domain Credentials Bar Admissions Colorado Minnesota Education University of Pennsylvania Law School J.D. Journal of Business Law (executive editor) (2014) University of Pennsylvania M.B.E. in Bioethics (2014) Wharton School of the University of Pennsylvania Wharton Certificate in Management (2014) Pacific Union College B.S. in Business Administration, magna cum laude (2005) Experience June 2018 Property Owner Awarded More than $28.5M Just Compensation in City Condemnation Action December 2017 Minnesota Landowners Quadruple Just Compensation in Eminent Domain Challenge October 2017 Real Estate Developer Awarded $4.1M in City Condemnation Action 2 | Sean J. Metherell | Professionals | Faegre Baker Daniels Leadership & Community Pro Bono National Veterans Legal Services Program Children’s Hospital of Colorado Medical-Legal Partnership Professional Associations Colorado Bar Association Denver Bar Association Civic Activities Littleton Hospital Foundation — Board Member Legal Aid Foundation of Colorado — Associates Campaign Firm Representative Honors Faegre Baker Daniels — Pro Bono Honor Roll, 2015, 2017-18 3 | Sean J. Metherell | Professionals | Faegre Baker Daniels Overview Rachel Burkhart helps corporate and individual clients navigate a range of real estate, construction and land use disputes. She primarily represents clients in arbitration proceedings, state court and local municipal settings. Real Estate Advocacy Rachel counsels corporate and individual clients on disputes involving real property interests. She has helped clients navigate a variety of claims arising from real estate transactions, including breach of contract claims, corporate governance issues and white collar criminal defense. Rachel has experience with disputes involving common interest ownership associations and special tax districts. She also represents tenants and landlords in commercial lease disputes such as forcible entry and detainer actions. Construction Rachel advises both contractors and owners on construction-related disputes. She handles disputes related to schedule impacts, defective work and payment withholding. She is familiar with the mechanic’s lien statute and the Construction Defect Action Reform Act. Rachel has experience advocating on behalf of clients in both state court and in proceedings before the American Arbitration Association. She is also knowledgeable regarding the American Institute of Architects’ (AIA) contract forms for design and construction projects. Land Use and Eminent Domain Rachel assists both landowners and condemning entities in eminent domain proceedings. She advises clients and works with Rachel L. Burkhart Associate rachel.burkhart@FaegreBD.com Denver D +1 303 607 3720 F +1 303 607 3600 1 | Rachel L. Burkhart | Professionals | Faegre Baker Daniels expert appraisers on complex valuation issues arising from the condemnation of real estate interests. She has also advocated on behalf of landowners and developers seeking land use rights and entitlements from municipal entities. Past Experience Prior to joining Faegre Baker Daniels, Rachel clerked for Judge David C. Godbey at the U.S. District Court for the Northern District of Texas. She also worked as a litigation associate at a Dallas firm, which was consistently ranked among the top firms in the country for its litigation and appellate practice. During law school, Rachel interned with Judge Laura Taylor Swain at the U.S. District Court for the Southern District of New York, the U.S. Attorney’s Office for the Eastern District of New York and the Federal Public Defender’s Office for the Eastern District of California. Services & Industries Real Estate, Construction & Environmental Construction Projects & Contracts Real Estate & Construction Disputes Eminent Domain Land Use, Planning & Zoning Leasing & Property Management Credentials Bar Admissions Colorado Clerkships U.S. District Court for the Northern District of Texas, Hon. David C. Godbey, 2015-2016 Education Columbia Law School J.D. Columbia Human Rights Law Review, A Jailhouse Lawyer's Manual (Articles Editor) (2014) 2 | Rachel L. Burkhart | Professionals | Faegre Baker Daniels University of Texas at Austin B.A. in History, cum laude, Certificate in International Studies (2010) Leadership & Community Pro Bono Colorado Legal Services — Regular volunteer at clinic serving needs of low-income tenants facing eviction in Denver County Court. Invictus Initiative — Member of legal team focused on improving the circumstances of Nepalese migrant workers Represented veteran suffering from post-traumatic stress disorder and other service-connected disabilities in administrative proceedings to correct their military records. Investigated procedural due process violations in Colorado municipal courts in partnership with the American Civil Liberties Union (ACLU) with an eye on potential legislative reform. Obtained a writ of habeas corpus from the Seventh Circuit U.S. Court of Appeals on behalf of a federal prisoner whose right to self-representation had been violated in state court. Civic Activities Rachel serves as a member of the Judicial Committee for the Colorado Women’s Bar Association (CBWA). Rachel is also a member of the Rocky Mountain chapter of the University of Texas alumni group. Honors Faegre Baker Daniels — Pro Bono Honor Roll, 2017-2018 Harlan Fiske Stone Scholar, Columbia Law School Parker School Certificate in Foreign and Comparative Law — Columbia Law School 3 | Rachel L. Burkhart | Professionals | Faegre Baker Daniels Overview Chris Raftery counsels clients and litigates disputes in construction, property tax appeals and real property issues. He also has extensive experience litigating general commercial disputes at the state and federal level. Construction Chris represents clients in litigation, arbitration and other dispute resolution activities involving a variety of construction issues, including delay and construction defect claims. He also reviews and analyzes a variety of construction contracts, including design agreements and design-build contracts. Property Tax Chris helps commercial clients navigate the tax appeal process at both the county and state agency level to achieve real property valuation corrections. Eminent Domain and Real Estate Advocacy Chris assists landowners and condemning entities protect their rights in eminent domain proceedings. His representation typically involves complex application of constitutional and municipal law, as well as the valuation of property rights. He also helps corporate and individual clients resolve disputes involving other real estate interests, including lease disputes and land-use designations. Past Experience Christopher A. Raftery Associate chris.raftery@FaegreBD.com Denver D +1 303 607 3632 F +1 303 607 3600 1 | Christopher A. Raftery | Professionals | Faegre Baker Daniels Prior to joining Faegre Baker Daniels, Chris worked as a litigation associate at an international law firm in its Santa Monica, California office, where he focused on a range of complex commercial litigation disputes. Services & Industries Real Estate, Construction & Environmental Real Estate & Construction Disputes Property Tax Management, Appeals & Disputes Eminent Domain Credentials Bar Admissions Colorado California Education University of California, Berkeley, School of Law J.D. Ecology Law Quarterly (articles editor) (2010) Harvard University B.A. in Government, cum laude (2004) Leadership & Community Civic Activities Sierra Club Rocky Mountain Chapter —Chair, Water Resources Committee, 2015-16 Honors University of California Berkeley School of Law — Certificate of Specialization in Environmental Law 2 | Christopher A. Raftery | Professionals | Faegre Baker Daniels Overview Carla Martin helps clients pave a way out of complex commercial legal disputes. She has concrete experience handling real estate matters arising from land use, easement and landlord-tenant issues, and has represented clients before federal and state court and regulatory agencies, such as the Colorado Board of Assessment Appeals. Carla also regularly conducts complex insurance recovery actions for developers and other large policyholders, as well as general commercial litigation. She brings an unwavering tenacity to the table, partnering with clients to understand the full scope of their concerns and protect and advance their real estate interests. Past Experience Before joining Faegre Baker Daniels, Carla worked as an associate for Sherman & Howard LLC, where she sharpened her experience taking and defending depositions, arguing motions in federal and state court, and examining witnesses at evidentiary hearings. She began her legal career as a law clerk for the Hon. Morris B. Hoffman of the Second Judicial District of Colorado. Personal Interests Carla enjoys trivia, cinema, and spending time with her husband and their Bernese Mountain Dogs. Carla R. Martin Associate carla.martin@FaegreBD.com Denver D +1 303 607 3674 F +1 303 607 3600 1 | Carla R. Martin | Professionals | Faegre Baker Daniels Services & Industries Real Estate, Construction & Environmental Credentials Bar Admissions Colorado Court Admissions U.S. Court of Appeals for the Tenth Circuit U.S. District Court for the District of Colorado Clerkships Second Judicial District Court (Denver County), Hon. Morris B. Hoffman, 2013-2015 Education Vanderbilt University Law School J.D. Vanderbilt Journal of Transnational Law (notes development editor) (2013) University of Miami B.S. in Advertising and English (2009) Leadership & Community Civic Activities Big Brothers Big Sisters of Colorado, mentor2.0 – Mentor, Fall 2018-present Legal Aid Foundation of Colorado – Associates Campaign Firm Representative 2018-2019 Denver Metro Chamber of Commerce, Impact Denver – Class member, Spring 2018 2 | Carla R. Martin | Professionals | Faegre Baker Daniels EXHIBIT 3 RedactedRedactedRedactedRedactedRedactedRedactedRedactedRedactedRedactedRedactedRedactedRedactedRedactedRedactedRedacted RedactedRedactedRedactedRedactedRedactedRedactedRedactedRedactedRedactedRedacted RedactedRedactedRedactedRedactedRedactedRedactedRedactedRedacted RedactedRedactedRedactedRedactedRedactedRedactedRedactedRedacted RedactedRedactedRedactedRedactedRedactedRedactedRedactedRedacted RedactedRedactedRedactedRedactedRedactedRedactedRedactedRedactedRedactedRedacted RedactedRedactedRedactedRedactedRedactedRedactedRedacted RedactedRedactedRedactedRedactedRedactedRedactedRedactedRedacted RedactedRedactedRedactedRedacted RedactedRedactedRedactedRedactedRedactedRedactedRedacted RedactedRedactedRedactedRedactedFees Not Claimed at this TimeFees Not Claimed at this Time Redacted 1 DISTRICT COURT, BOULDER COUNTY, COLORADO Court Address: 1777 6TH Street, Boulder Colorado 80302 303-441-3750 _________________________________________________ Petitioner: THE CITY OF BOULDER, a Colorado Home Rule City, v. Respondents: PUBLIC SERVICE COMPANY OF COLORADO, a Colorado Corporation, d/b/a XCEL ENERGY; MORGAN GUARANTY TRUST COMPANY OF NEW YORK; and PAUL WEISSMANN, in his official capacity as Treasurer of Boulder County. COURT USE ONLY __________________________ Case Number: 19 CV 30637 Division: 5 [PROPOSED] ORDER RE: PSCO’S MOTION FOR ATTORNEY FEES AND ENTRY OF JUDGMENT The Court, having reviewed Respondent, Public Service Company of Colorado’s (“PSCo”) Motion for Attorney Fees, and being fully advised in the premises, hereby FINDS that PSCo’s attorney fees of $210,748.15 are reasonable and recoverable under C.R.S. § 38-1-122(1). The Clerk shall enter judgment in favor of Public Service Company of Colorado and against the City of Boulder in the amount of $210,748.15. PSCo has reserved its right to claim all other fees and costs incurred as a result of Boulder’s municipalization and condemnation efforts not claimed in this motion should Boulder seek to file another condemnation case and it is ultimately determined that PSCo is entitled to fees and costs pursuant to C.R.S. § 38-1-122(1), (1.5), or other relevant law. 2 DATED: _____________________, 2019 BY THE COURT: ____________________________________ District Court Judge