038 Petition in Condemnation with ExhibitsDISTRICT 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, U.S. Bank National Association;
and PAUL WEISSMANN, in his official capacity as Treasurer of Boulder
County.
Attorneys for Petitioner, City of Boulder:
Attorney Name:
Office of the Boulder City Attorney
Thomas A. Carr, No. 42170, City Attorney
Kathleen E. Haddock, No. 16011, Senior Counsel
Address:
P.O. Box 791
Boulder, Colorado 80306
Phone Number: 303.441.3020
Fax Number: 303.441.3859
Email: carrt@bouldercolorado.gov
haddockk@bouldercolorado.gov
Attorney Name:
Hamre, Rodriguez, Ostrander & Dingess, PC
Donald M. Ostrander, No. 12458
Richard F. Rodriguez, No. 25105
Address:
3600 S. Yosemite Street, Suite 500
Denver, Colorado 80237
Phone Number: 303.779.0200
Fax Number: 303.779.3662
Email: dostrander@hrodlaw.com
rrodriguez@hrodlaw.com
COURT USE ONLY
Case No. 2019CV
Division:
PETITION IN CONDEMNATION
DATE FILED: December 19, 2019 4:51 PM
FILING ID: E6CAC62995A84
CASE NUMBER: 2019CV31226
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The City of Boulder, Petitioner (“City” or “Petitioner” or “Boulder”), by and through its
attorneys, alleges as follows:
GENERAL ALLEGATIONS
1. The City is a home rule city of the State of Colorado organized and existing under a
home rule charter pursuant to the Colorado Constitution, Article XX.
2. The City’s authority to maintain this proceeding is set forth in Article XX, sections 1
and 6 of the Colorado Constitution, in Article 1, sections 2(b) and (d) and Article XIII, section
180(a) of the Home Rule Charter of the City of Boulder, and C.R.S. § 38-5-105.
3. The City has the power to construct, condemn, purchase, acquire, add to, maintain,
conduct, and operate public utilities or works or ways, in whole or in part within or without its
territorial limits and everything required therefore pursuant to the Colorado Constitution, Article
XX, sections 1 and 6.
4. Colorado Constitution, Article XV, section 8 states: “The right of eminent domain
shall never be abridged nor so construed as to prevent the general assembly from taking the
property and franchises of incorporated companies and subjecting them to public use, the same
as the property of individuals” Article XX states, in part, that home rule cities:
. . . shall have the power, within or without its territorial limits, to
construct, condemn and purchase, purchase, acquire, lease, add to,
maintain, conduct, and operate water works, light plants, power
plants, transportation systems, heating plants, and any other public
utilities or works or ways local in use and extent, in whole or in part,
and everything required therefore, for the use of said city and county
and the inhabitants thereof, and any such systems, plants, or works
or ways, or any contracts in relation or connection with either, that
may exist and which said city and county may desire to purchase, in
whole or in part, the same or any part thereof may be purchased by
said city and county which may enforce such purchase by
proceedings at law as in taking land for public use by right of
eminent domain, . . . (emphasis added).
5. The property to be acquired is comprised of existing electric distribution facilities
from connection to the electric transmission grid operated by Respondent Public Service
Company of Colorado d/b/a Xcel Energy and its parent holding company, Xcel Energy, Inc.,
(“Xcel”) extending to customer meters within the City and the property interests necessary to
operate those facilities as more specifically described below (the “Property”).
6. The project for which the Property is being acquired is to separate the existing
electrical distribution system serving customers in the vicinity of the City into two separate
distribution systems from the substation to the customer meter, one serving only customers
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within the City (the “Boulder System”) and the other serving customers of Xcel (the “Xcel
System”), by reconfiguration of the existing equipment and the addition of new facilities so that
each system can be operated independently of the other in order to distribute electricity to the
respective retail customers of the City and Xcel, as more particularly described below (the
“Project”).
7. The City has complied with all conditions precedent for the exercise of its
condemnation powers in this case.
8. This proceeding is brought pursuant to the procedural provisions of C.R.S. § 38-
1-101, et seq., as amended.
9. Petitioner is informed and believes that Public Service Company of Colorado and
its parent holding company, Xcel, as its interests may appear with respect to the Property
(collectively, “Xcel” or the “Respondent”), own the Property.
10. Respondent U.S. Bank National Association (formerly First Trust of New York,
National Association), a national banking association, as successor trustee to Morgan Guaranty
Trust Company of New York under the Indenture, dated as of October 1, 1993, and recorded
with the Boulder County Clerk and Recorder on October 13, 1993 at Reception No. 01347991 as
supplemented by Supplement Nos. 1 through 30 (the “Indenture”). The Indenture encumbers
lands and interests of Xcel used in its electric utility business which may include some or all of
the Property. The Indenture encumbers lands and interests of Xcel used in its electric utility
business “except land and interests in land which have been specifically released from such
Lien” which may include some or all of the Property.
11. Respondent Paul Weissmann as Treasurer of Boulder County is joined as a
Respondent pursuant to C.R.S. § 39-3-134.
12. Insofar as it is known to the Petitioner, upon its exercise of due diligence, there are
no other persons or entities who may claim any right, title, or interest in or to the Property.
13. Petitioner is informed and believes this action does not affect the property of any
persons in a guardianship or conservatorship.
14. The Property is located in the County of Boulder, Colorado, which is the county in
which this action is brought.
15. Venue is proper in Boulder County District Court.
16. All Property, including property interests, facilities and equipment sought in this
proceeding are subject to acquisition by the Petitioner and necessary for the Project.
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17. The Property is being acquired for a public purpose and in furtherance of a public
use: establishing, erecting, maintaining and operating a municipal light and power utility for the
use of the City and its inhabitants. The public purpose is further defined as the Project below.
18. Petitioner has negotiated in good faith with Xcel in an attempt to acquire the
Property but has been unable to reach a mutual agreement. The just compensation to be paid for
the Property cannot be agreed upon and further negotiations would be futile.
19. Petitioner has the constitutional power of condemnation over property in which
Xcel has an interest inside and outside of substations.
THE PROPERTY
20. The facilities portion of the Property consist of over 100,000 pieces of equipment
such as 13.2 kilovolt (“kV”) (and lower voltage rated) electrical lines, transformers, meters,
customer service drops, towers, poles, braces, anchors, crossarms, cables, conduits, conductor,
switching stations, high tension apparatus, control and protective equipment, customer meters,
streetlights, appurtenances and related fixtures.
21. The Property is part of a working system that changes on a regular basis as
customers relocate and construction occurs. The Exhibits made a part of this filing are a snapshot in
time of that dynamic system provided by Xcel to the City as part of the Colorado Public Utilities
Commission proceedings in Proceeding No. 15A-0589E (the “PUC Proceedings”). Boulder will
use the provisions of C.R.S. § 38-1-104 to amend the Petition to reflect any changes made necessary
by further proceedings, changes made in the normal course of business and any other Project
requirements.
22. The City has identified all of the facilities and the property interests in Excel
spreadsheets and PDF diagrams, and the location of all of the facilities within the property interests
in Geographic Information System (GIS) format. The spreadsheets and the mapping in GIS format
have been provided to Xcel. Printing the spreadsheet for the facilities would require over 1500
pages of legal-size paper.
23. Certain information related to the facilities and property interests and the precise
location constitutes critical electric infrastructure information subject to restrictions on disclosure
established under the authority of state or federal law (e.g. C.R.S. § 24-33.5-1602, or 42 U.S.C. §
5195c(e)) (referred to as “CEII”).
24. Because the spreadsheets, diagrams, and mapping in GIS format are CEII, the
City will file a Motion for Protective Order so that upon issuance of a Protective Order they can
be provided to the court and other Respondents maintaining the confidential nature of that
information.
25. There are two spreadsheets and one GIS map itemizing portions of the Property with
summaries of each attached as public exhibits:
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A. Exhibit 1 is the spreadsheet listing the distribution facilities that are not
substation assets (the “Facilities Spreadsheet”) to be acquired. Public
Exhibit 1 attached hereto shows the summary of the assets on the Facilities
Spreadsheet and provides the location of the spreadsheet that contains 1597
pages identifying the facilities individually.
B. Exhibit 2 is the list of documents that describe properties that may include
facilities on the Facilities Spreadsheet (the “Property Spreadsheet”) to be
acquired. Exhibit 2 is in three parts: Part 1 contains the recorded property
interests identified by Xcel and the City through January 2019; Part 2
contains the recorded property interests identified by Xcel and the City and
compiled after January 2019; Part 3 contains the unrecorded property
interests provided by Xcel. Public Exhibit 2 attached hereto shows the
format of each part of the Property Spreadsheet. Confidential Exhibit 2 is
the same format, with all of the properties itemized with recording and
location information. Exhibit 2, Part 1 contains 968 recorded documents,
Exhibit 2, Part 2 contains 140 recorded documents; and Part 3 contains 20
unrecorded documents provided by Xcel.
C. Confidential Exhibit 3 (“GIS Map”) is the mapping, in GIS format, that
includes all of the facilities described on Exhibit 1 and Confidential Exhibit 2
and streetlights and appurtenances.
26. All of the facilities, equipment and property interests identified in Exhibit 1 and
Confidential Exhibit 2 have been approved for transfer by the Colorado Public Utilities Commission
by Decision No. C19-0874, dated October 28, 2019 in the PUC Proceeding.
27. The Property sought for acquisition in this proceeding includes:
A. All of the facilities, equipment and property interests identified on Exhibit 1
and Confidential Exhibit 2;
B. All appurtenances to the facilities identified which include items such as
customer meters, manholes, services and secondaries, vaults, guys, and fiber
optic and communication facilities;
C. All streetlights within the City;
D. Facilities that are not used or useful, such as SmartGrid equipment, or that
are obsolete, but that could interfere with the Boulder System if they were
abandoned or retired in place;
E. Any other distribution facilities and associated appurtenances and property
interests that are used or useful for customers inside the City and were not
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included in the information provided by Xcel, which information is
described below; and
F. Agreements between Xcel and third parties which are necessary to operate
the Property or for third party use of the Property, such as pole attachment
agreements.
28. Confidential Exhibits 2 and 3 have been provided to Xcel.
29. Confidential Exhibits 2 and 3 will be provided to the Court and other Respondents
under a protective order.
30. Exhibit 1 (Facilities Spreadsheet) and Confidential Exhibit 3 (GIS Map) were
created from information in a model of the existing distribution facilities serving Boulder customers
provided by Xcel in 2016 and updated in 2018.
31. Exhibit 1 contains the portion of the list of facilities that was approved for transfer
by the Colorado Public Utilities Commission (the “PUC”) in Decision No. C19-0874.
32. Confidential Exhibit 2 (Property Spreadsheet) contains some of the documents that
were included on a spreadsheet that was prepared by Xcel as part of the PUC Proceeding.
33. Xcel is thoroughly familiar with the location of the Property as it has constructed,
operated, and maintained the facilities for many years.
34. Any Property that is physically located with facilities Xcel will retain in the same
easement is subject to the Easement Sharing Agreement between Xcel the City dated November 16,
2018 (attached as Exhibit 4).
35. The Property does not include:
A. Accounts receivable, claims, credits, demands and judgments, customer
deposits, permits, licenses or franchises, patents, patent licenses,
applications, or other patent rights, trade name, trademarks, copyrights,
logos, manuals, proprietary software, best practices studies, chooses in action
and other intangibles, including, without limitation computer software;
B. Any motor vehicles, movable equipment, or rolling stock;
C. Any facilities or real property interests that are not included in Xcel’s system
of plant accounts maintained in accordance with the Uniform System of
Accounts Prescribed for Public Utilities and Licensees Subject to the
Provisions of the Federal Power Act (18 C.F.R. Part 101) (the “Uniform
System of Accounts”) at its original cost (as the term “original cost” is
defined in Uniform System of Accounts Definition No. 23) less accumulated
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depreciation (as the term “depreciation” is defined in Uniform System of
Accounts Definition No. 12);
D. Going concern value of assets;
E. Transmission or generation facilities for electricity;
F. Distribution or transmission facilities for natural gas;
G. Any facilities necessary for Xcel to retain after completion of the Project
to serve its customers;
H. Any new facilities, equipment or systems planned by Xcel but not used or
useful in providing electric distribution service to Boulder customers on or
before the date of valuation; or
I. Any deposits Xcel may have received from customers or any agreements
with customers.
THE PROJECT
36. The plan for the reconfiguration of existing equipment and installation of new
equipment to create the Boulder System and the Xcel System is referred to as the “Separation
Plan” and is part of the Project
37. The Project includes:
A. Acquisition of the Property, completion of the Separation Plan, the work
necessary to transfer customers to the Boulder System or the Xcel System
(the “Cut-Over Plan”), and other work necessary as contemplated in the
Agreement for Payment of Costs dated October 24, 2018, as amended (the
“Cost Agreement”); and
B. Installation of meters, and associated disconnection switches, protective
devices and communications systems inside and outside of the substations
to interface with each other and Xcel’s System in accordance with the
Separation Plan; and
C. Interconnection of the Boulder System facilities to the transmission
system as provided in Xcel’s Open Access Transmission Tariff and in
accordance with applicable law and requirements of the Federal Energy
Regulatory Commission; and
D. The True-Up Costs, Cut-Over Work and all other work that is performed
at Boulder’s expense as provided in the Cost Agreement; and
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E. Maintaining Xcel’s ability to distribute power to Xcel facilities and
customers as they exist after completion of the Project as part of a safe,
effective and reliable system.
38. Pursuant to Decision No. C17-0750 in the PUC Proceedings, the City is not
paying for the Property and the property is not being transferred to the City, (a) unless the voters
of the City authorize the construction portion of the Project at an election referred to as the
Go/No-Go Vote in the Cost Agreement; and (b) until the Cut-Over Date as defined in the Cost
Agreement.
39. As part of the Project, and in accordance with the System Impact Study Report for
the six substations presently serving Boulder, provided by Xcel to Boulder on October 31, 2018
and a second report on the alternative location provided on December 19, 2018, and the Facilities
Study Reports dated August 16, 2019, (collectively the “Interconnection Report”), the
substations to be reconfigured and constructed as part of the Separation Plan include:
A. Adjacent to the existing Sunshine substation, on property owned by the
City, the City will construct a new substation to serve its customers. It
will be connected to the transmission system outside of the existing
substation fence.
B. At the Boulder Terminal Substation, Boulder will connect its distribution
to facilities and pay for new buswork and metering for the Xcel
transmission facilities. At the Leggett Substation, Boulder will construct a
new substation to the north of the existing substation. The new Boulder
Leggett Substation will be connected to the transmission system outside
the substation fence.
C. At the NCAR Substation, Boulder distribution facilities will be connected
to transmission and Boulder will pay for new buswork and metering for
the Xcel transmission facilities and a new electrical equipment enclosure
for Xcel.
D. At the Gunbarrel Substation, Boulder will connect its distribution
equipment.
E. At the new substation at the City’s Wastewater Treatment Plant, Boulder
will construct a new substation to serve its customers and Xcel will
construct a new interconnection substation at Boulder’s expense.
F. Future acquisition of substation facilities and property in accordance with
applicable law and/or such new substations as may be necessary in the
vicinity of the existing Boulder Terminal and Gunbarrel substations.
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40. The Project does not include any electric generation or transmission facilities, or
any natural gas transmission or distribution facilities, or property interests necessary for such
facilities.
41. After completion of the Project, none of the City’s distribution facilities will be
co-located with Xcel distribution facilities in any of the substations.
42. In paragraph 114 of the 2017 PUC Decision defined in Paragraph 59 of this
Petition, the PUC concluded that “Public Service will be able to continue to provide safe, reliable
and effective service post separation in accordance with good utility practice and industry
standards in the design, construction, and operation of its system” if Boulder complies with the
conditions of the 2017 PUC Decision.
43. Pursuant to the terms of the Cost Agreement as defined in this Petition, all of the
work to accomplish the Project is being paid for by the City.
44. The Separation Plan is designed to maintain or exceed the existing safety,
effectiveness and reliability of the of the Xcel System after implementation of the Project.
BOULDER ELECTIONS AND PAST PETITION IN CONDEMNATION
45. On November 1, 2011, voters in the City approved Ballot Question 2C, which
adopted a new Chapter XIII to the Boulder Home Rule Charter providing for the City to operate its
own electric utility under specified circumstances, including acquiring existing assets from the
Respondent. The process for the change of the retail distribution provider from an investor-owned
utility such as Xcel, to a municipality is often referred to as “Municipalization.”
46. On November 7, 2017, voters in the City approved Ballot Question 2O by 82.77% to
17.23% to change the charter to allow the voters to determine whether to proceed after knowing
costs of municipalization.
47. On August 20, 2013 Ordinance 7918 was adopted by the Boulder City Council,
which authorizes the City to exercise its power of eminent domain in this case. Ordinance 7918 can
be found at https://documents.bouldercolorado.gov/weblink8/0/doc/123436/Page1.aspx.
48. On July 17, 2014, the City filed a Petition in Condemnation for acquisition of
property from the Respondent for the City Utility in Civil Action No. 2014CV30890.
49. On August 12, 2014, Respondent filed a Motion to Dismiss.
50. On February 13, 2015, the Court granted the Motion to Dismiss relying on its ruling
in Case No. 2014CV30047 that the PUC had to decide how the facilities would be divided, assigned
and jointly used to protect the utility system’s effectiveness, reliability, and safety.
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THE 2014 BOULDER APPEAL OF 2013 PUC DECISION
51. On January 28, 2014, the Boulder District Court in Case No. 2014CV030047
granted Boulder’s Writ of Certiorari to review PUC Decision C13-1530 Decision Issuing
Declaratory Orders dated October 29, 2013 and 13-1550 Decision Denying Boulder’s Application
of Rehearing, Re-argument, or Reconsideration dated December 18, 2013 in PUC Proceeding No.
13D-0498E (the “PUC 2013 Decision”).
52. On January 14, 2015, the District Court affirmed the PUC 2013 Decision (the “2015
District Court Decision”), finding:
A. The PUC action only delays [emphasis in original] Boulder’s constitutional
right to eminent domain, a delay that would necessarily occur at some point
in time prior to finalizing the utility municipalization to provide 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 matters affecting the public
interest. 2015 District Court Decision at 8.
B. Boulder has a constitutional right to condemn facilities in unincorporated
Boulder County for its city utility municipalization, but it does not have a
constitutional right to usurp the PUC’s constitutional right to regulate
facilities and services that serve utility customers in unincorporated Boulder
County. 2015 District Court Decision at 11.
53. In the 2015 District Court Decision, Judge LaBuda ruled:
A. Therefore, it is necessary and appropriate for the PUC to determine how
facilities should be assigned, divided, or jointly used to protect the system’s
effectiveness, reliability, and safety. Such a determination must be made
prior to the City’s condemnation of property for utility municipalization.
2015 District Court Decision at 12.
B. This finding does not abrogate the City’s constitutional right to eminent
domain, but rather just delays the City’s constitutional right, a delay that
would necessarily occur at some point in the process. Id. Pg. 12.
54. The 2015 District Court Decision is limited to circumstances where the City intends
to serve customers outside its boundaries:
In assessing the operation of utilities outside the boundaries of a municipal,
“the PUC must . . . be allowed the power to resolve jurisdictional disputes
between municipalities and private utilities companies over who is to serve
areas outside municipal boundaries” quoting Loveland v. Pub. Utils,
Comm’n, 580 P.2d 381, 385 (Colo. 1978) . . . what matters is the fact that
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Boulder seeks to include non-resident customers in its service area. Service
to non-resident customers thus invokes PUC jurisdiction and regulation.
2015 District Court Decision at 7.
2015 PUC PROCEEDINGS
55. On July 7, 2015, the City filed an Application for Approval of the Proposed Transfer
of Assets in the PUC Proceedings. The plan for separation of assets for this First Application was
virtually the same as the plan considered as part of the 2015 District Court Decision, including
serving customers outside the City boundaries.
56. On December 30, 2015, in Decision No. C15-1360-I the PUC dismissed the portion
of the Application that provided for transfer of assets that served Xcel customers exclusively and
granted the City’s request to file a supplemental application.
57. On September 28, 2016, the City filed its Second Application that eliminated its
request for transfer of facilities that serve Xcel customers outside the boundaries of the City, and
proposed, (a) for the City and Xcel to provide back-up service to the other or to have no
interconnection at the distribution level of either system; (b) for a Transition Period during which
time construction would occur to separate the existing system into two systems and the City would
own the facilities it acquired and bill its customers, and Xcel would retain its facilities and bill its
customers; and (c) a Gradual Departure Plan allowing Boulder to buy power from Xcel until the
native load needed more generation.
58. On May 12, 2017, the City filed its Third Application which eliminated the Gradual
Departure Plan and provided for four phases for division of the existing system into two systems so
that the PUC retained oversight and approval of the separation construction, the transfer of service
from the existing system to the Boulder System, and Boulder’s reimbursement of Xcel’s prudently
incurred costs on separation construction.
THE 2017 PUC DECISION
59. On September 14, 2017, the PUC issued Decision No. C17-0750 Granting, in Part
and with Conditions, and Denying, in Part, Third Supplemental Verified Application in Proceeding
15A-0589E, a copy of which is attached as Exhibit 5 (the “2017 PUC Decision”).
60. The 2017 PUC Decision approved the designation of assets for transfer outside of
substations subject to Boulder satisfying three conditions, (1) an agreement providing Xcel with
permanent property rights for any distribution facilities it retains within the City boundaries to serve
Xcel customers; (2) a corrected list of facilities and list of property interests for those facilities; and
(3) an agreement for Boulder to pay all costs incurred by Xcel in the separation of the systems.
61. On October 26, 2018, the City and Xcel submitted a Joint Filing to the PUC in order
to satisfy the conditions of the 2017 PUC Decision including, the Interim Agreement for Payment of
Costs, the Agreement for Payment of Costs (collectively included in the definition of Cost
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Agreement), the Easement Sharing Agreement, and the Permanent Easement Agreement, all four
agreements between Xcel and the City, and corrected lists of assets (Exhibit 5A for facilities and
Exhibit 5B for property interests) (the “2018 Joint Filing”).
62. Xcel filed a Notice of Withdrawal from the list of assets portion of the 2018 Joint
Filing, in part because the City had authorized acquisition of Xcel’s facilities.
63. Subsequent to filing of its Notice of Withdrawal, Xcel has agreed that the list of
facilities made part of the Joint Filing as Exhibit 5A is accurate.
64. As recognized by the PUC in the 2017 PUC Decision, the City does not intend to
acquire all of the properties in Exhibit 5B, but only portions thereof that include facilities on Exhibit
5A.
65. The 2017 PUC Decision was adopted by the PUC to “satisf[y] the requirements
stemming from the Boulder District Court.”1
66. The 2017 PUC Decision recognized that the PUC does not have jurisdiction when
the municipality operates to serve customers solely within its boundaries:
It was clear to the judge that the Commission does not have jurisdiction to exercise
its authority under article XXV when a municipal operates a utility solely within its
boundaries under article XX. Paragraph 96 of Decision.
67. After completion of the Project, the Property defined herein will not serve any
customers outside of the City boundaries; it will only serve customers within the City boundaries.
2019 CONDEMNATION PETITION AND PUC DECISION
68. On June 28, 2019, after conducting good faith negotiations with Xcel that did not
result in agreement on the just compensation to be paid for the assets, the City filed a Petition in
Condemnation for acquisition of property from Xcel in Civil Action No. 2019CV30637.
69. On August 5, 2019 Respondent Xcel filed a Motion to Dismiss.
70. On September 4, 2019, the Court granted the Motion to Dismiss relying on the
reasoning in Xcel’s Motion to Dismiss that the PUC Proceedings had not been completed.
71. On October 28, 2019, the PUC determined that the conditions of the 2017 PUC
Decision had been satisfied, the approval requested for transfer of assets was granted without
condition, and the PUC Proceeding was dismissed. The decision is attached as Exhibit 6.
1 References to Order Re: Judicial Review of the Colorado Public Utilities Commission Decision, City of Boulder v.
Pub. Uils. Comm’n, Case No. 14CV30047 (Boulder Dist. Ct., January 14, 2015) will hereinafter be referred to as the
“Boulder District Court Decision.”
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THE FERC-REGULATED OATT PROCESS
72. The 2017 PUC Decision provided (at Paragraphs 128-130) that the separation of
facilities at substations would be accomplished as provided for in a transmission load
interconnection process to be initiated by an application by Boulder under Xcel’s Open Access
Transmission Tariff (the “OATT”) approved by the FERC.
73. The City submitted its Load to Transmission Interconnection System Impact Study
(“SIS”) Request to Xcel pursuant to its OATT on January 9, 2018. Xcel thereafter completed the
System Impact Studies requested by the City and delivered to the City a report (the “SIS Report”)
outlining its conclusions concerning the conditions and configurations under which Xcel could
connect the electric demand to be served by the Boulder System to the electric transmission grid
operated by Xcel.
74. The City accepted Xcel’s configuration proposals in the SIS Report for substations
at Sunshine, Boulder Terminal, Leggett, NCAR, Gunbarrel and the Wastewater Treatment Plant.
75. The SIS Report contemplates that the City would (a) acquire all of the distribution
facilities in the Boulder Terminal and NCAR Substations; (b) acquire Xcel’s distribution facilities at
the Gunbarrel Substation (Boulder Terminal, NCAR and Gunbarrel Substations shall be referred to
as the “Boulder Distribution Substations”); and (c) build three new substations; one adjacent to the
Sunshine and Leggett Substations, and the third on property owned by the City (to be referred to as
the “New Boulder Substations”). Collectively both the Xcel and City portions of the Boulder
Distribution Substations and the New Boulder Substations shall be referred to as the “Substations.”
76. The SIS Report included a list and location of the existing equipment that would
become part of the Boulder System. The SIS Report also identified the location of new Boulder
equipment in both existing and new substations and the demarcation location between Boulder and
Xcel. Finally, the SIS Report identified where the Boulder distribution system would interconnect
with the Xcel transmission system.
77. The property interests and assets described on the Substation Asset list were derived
from the SIS Report.
78. Pursuant to application by the City, effective May 7, 2019, the City and Xcel entered
into a Facilities Study and Detailed Engineering Design Agreement that provides for the next phase
of the OATT process (the “Facilities Study Agreement”) and the engineering design for the City
and Xcel construction reconfiguring the existing facilities for both the Xcel and City systems, and
the new facilities for both the Xcel and City Systems.
79. After acceptance of the draft studies by Boulder, the Facilities Studies were
completed on August 16, 2018 (the “Facility Report”).
80. There were no changes to the general arrangement diagrams or the one-line
diagrams in the Facility Report from the SIS Report.
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81. There are no other requirements in the OATT before Boulder requests network
integration service after this proceeding is completed.
82. The SIS Agreements were filed with the FERC in Docket Nos. ER 18-1502-000 and
ER 19-141-000 and the Facilities Study Agreement was filed with the FERC in Docket No. ER 19-
1784-000. All were accepted by the FERC for filing under § 205 of the Federal Power Act.
THE ACQUISITION PROCESS
83. On December 4, 2018, the Boulder City Council adopted Ordinance 8302 that
authorized acquisition of the Property, including by condemnation, if necessary. The ordinance is
attached as Exhibit 7.
84. By Ordinance 8302, the City determined there is a need and necessity and that it is in
the public’s best interest for the City to acquire the Property.
85. On November 20, 2019, the City sent its Notice of Intent to Acquire and Final
Offer to Xcel and has met with representatives of Xcel to determine a purchase price for the
Property.
86. Xcel has said that it cannot respond to the Final Offer and has engaged in conduct
intended only to delay negotiations rather than move to resolution.
87. Good faith negotiations have failed and further negotiation at this time would be
futile.
88. The 2017 PUC Decision prohibits the transfer of the Property until the Cut-Over
Date to require Xcel to maintain and operate the Property until the Boulder System and the Xcel
System can operate independently.
89. The Cost Agreement defines how changes in the Property and appreciation or
depreciation of the Property between (a) the determination in this proceeding of the just
compensation before the Go/No-Go Vote, and (b) the Cut-Over Date (the “Construction
Period”).
90. Except as provided in the Cost Agreement, no further adjustments to the just
compensation are to be made as a result of circumstances during the Construction Period.
NO DAMAGES
91. After Petitioner’s completion of the Project, Xcel’s electric distribution system
will be safe, effective and reliable.
92. As a result of the Project, Xcel will suffer no damages to its electric distribution
system.
15
93. As a result of the Project, the Xcel electric distribution system is specifically
benefitted.
REQUESTS FOR RELIEF
WHEREFORE, Petitioner requests this court enter Orders as follows:
1. That if ownership or interests in the Property are not correctly set forth herein, then
the Respondents be required to set forth by Answer the extent of their respective interests and the
names and addresses of any other interested persons or entities and the nature and extent of their
interest.
2. That the just compensation to be paid for the acquisition of the Property be
determined in the manner provided by law.
3. That the Petitioner have judgment condemning the Property and that a Rule and
Order be entered conveying the Property to the Petitioner upon Petitioner’s payment of just
compensation as determined by the Court.
4. That the Respondent be ordered to make and prosecute, in a timely and
expeditious manner, in cooperation with the Petitioner, such regulatory filings before regulatory
tribunals charged with supervising the public’s interest with respect to the involuntary transfer of
utility assets as may be necessary and appropriate to effectuate the transfer of ownership of the
Property from the Respondent to the Petitioner.
5. Any additional relief as may be deemed just and proper.
Respectfully submitted this 19th day of December 2019.
BOULDER CITY ATTORNEY’S OFFICE
By: /s/ Kathleen E. Haddock
Thomas A. Carr, City Attorney
Kathleen E. Haddock, Senior Counsel
ATTORNEYS FOR PETITIONER
Address of Petitioner:
City of Boulder
P.O. Box 791
Boulder, Colorado 80306
Created and Collaboratively Updated by Boulder and PSCo in October 2018 from 2018 System DataBoulder System Distribution Asset TotalsAsset NameAsset Database FieldCurrent OwnershipTotal Asset Record Count Existing Install Remove/Retired Units Description Total Feet/Qty.Anchor GuyAnchor_Guy_Location.shpPSCo27842708 3442Qty.2784BusbarBusbar_Route.shpPSCo20031964 327Qty.2003Capacitor RackCapacitor_Rack_Location.shpPSCo5857 10Qty.58Duct BankDuct_Bank_Actuai_Route.shpPSCo1488 *127783 78124392Feet Total Length 139987Elbow LocationElbow_Location.shpPSCo10094 60Qty.100Electric LocatorElectric_Locator_Location.shpPSCo1100Qty. 1Lot CentroidLot_Centroid_and_Premise_location.shpServed by PSCo28546N/A N/AN/AQty.28546OH FuseOH_Fuse_Location.shpPSCo130412662315Qty.1304375970251436FeetSingle Phase377431160690260FeetDouble Phase16329430164 3239972FeetThree Phase434376Overhead Secondary Change MarkerOH_Secondary_w_wires_Change_Marker.shpPSCo14331400 033Qty.1433Overhead Secondary WiresOH_Secondary_w_wires_Route.shpPSCo7372 *804825 633217090Feet Total Length 828247Overhead SwitchOH_Switch_location.shpPSCo326320 51Qty.32630 0 Qty.0kVA 310 0 Qty.5kVA 121 00Qty. 10kVA2131 00Qty. 15kVA310 00Qty. 20kVA0391 07Qty. 25kVA3986 00Qty. 30kVA60 00Qty. 35kVA02 00Qty. 37.5kVA21 00Qty. 40kVA13 00Qty. 45kVA3336 00Qty. 50kVA33626 02Qty. 75kVA2840 00Qty. 100kVA403 00Qty. 110kVA31 00Qty. 115kVA14 00Qty. 125kVA428 00Qty. 150kVA283 00Qty. 167kVA31 00Qty. 215kVA12 00Qty. 225kVA21 00Qty. 267kVA118 00Qty. 300kVA182 00Qty. 500kVA214 00Qty. Unknown14Overhead Transformer Secondary ConnectionOH_Transformer_Bank_Secondary_Connection.shpPSCo14121402 010Qty.1412Overhead Transformer Secondary LocationOH_Transformer_Bank_Secondary_Location.shpPSCo14121402 010Qty.1412Transformer PadPad_location.shpPSCo26102600 17Qty.2608Service PedestalPedestal_Location.shpPSCo0000Qty.0Pole BracePole_Brace_location.shpPSCo1100Qty.1Pole Pole_location.shpPSCo1068110054 100527Qty.10681Power Quality MeterPower_Quality_Meter_Location.shpPSCo9900Qty. 9Primary Intersect ConnectPrimary_Intersect_Connect_Location.shpPSCo6600Qty. 6Primary Meter Customer ConnectionPrimary_Meter_Customer_Connection.shpPSCo3331 11Qty.33Primary MeterPrimary_Meter_Location.shpPSCo3532 21Qty.35Primary Open PointPrimary_Open_Point_Location.shpPSCo317307 73Qty.317Primary SplicePrimary_Splice_Location.shpPSCo379328 447Qty.379Recloser BankRecloser_Bank_Location.shpPSCo2020 00Qty.20RiserRiser_location.shpPSCo25642398 10462Qty.2564Secondary lnline DeviceSecondary_lnline_Device_location.shpPSCo196186 91Qty.196PUBLIC EXHIBIT 1 Facilities Spreadsheet Summary Page 1 of 2The full 1576 pages of this Exhibit 1 with the facilities identified individually is available at: Bouldercolorado.gov ˃ Records Archive ˃ Browse Boulder’s Energy Future Document ˃ Litigation ˃ Condemnation ˃ Boulder Asset Acquisition Public Exhibit 1 ItemizedThe spreadsheets include over 104,000 assets, including approximately 4445 distribution transformers, over 511 circuit miles of primary conductor, and approximately 10680 poles. In addition, the assets to be approved for transfer include all ancillary assets and appurtenances to the assets listed, and all streetlights within the city limits. The ancillary assets and appurtenances include without limitation, equipment down stream, manholes, customer meters, services and secondaries, belts, fiber optic and communication facilities. The asterisk by a number in the Total Asset Record Count ‐ Column E represents the number of records, not distance. Total Feet/Qty ‐ Column K represents the distance. As a result, the two columns do not match for the rows with an asterisk.WARNING: If printed, it is estimated that the spreadsheets would use approximately 1600 pages of legal size paper. Overhead Primary WiresOverhead Transformer BankOH_Transformer_Bank_Location.shpOH_Primary_w_Wires_Route.shpPSCo6415 *PSCo947Page 1 of 2DATE FILED: December 19, 2019 4:51 PM FILING ID: E6CAC62995A84 CASE NUMBER: 2019CV31226
Boulder System Distribution Asset TotalsAsset NameAsset Database FieldCurrent OwnershipTotal Asset Record Count Existing Install Remove/Retired Units Description Total Feet/Qty.Secondary Open PointSecondary_Open_Point_Location.shpPSCo616602 77Qty.616SectionalizerSectionalizer_Bank_location.shpPSCo5500Qty. 5Span GuySpan_Guy_Route.shpPSCo557544 112Qty.557Splice BoxSplice_Box_location.shpPSCo13731217 35121Qty.1373Switch Switching_Facility_location.shpPSCo443433 82Qty.443Synchrophasor MeterSynchrophasor_Meter_Location.shpPSCo6600Qty. 6Underground Automatic Transfer OverUG_ATO_Location.shpPSCo6600Qty. 6Underground FuseUG_Fuse_Location.shpPSCo10671045175Qty.1067812770970567269Feet Single Phase 88974469000Feet Double Phase 690763874 34547 183815Feet Three Phase 982236Underground Secondary Change MarkerUG_Secondary_w_wires_Change_Marker.shpPSCo529499 030Qty.529Underground SecondaryUG_Secondary_w_wires_Route.shpPSCo12103 *913568 12955 63786Feet Total Length 990309Underground StructuresUG_Structure_Location.shpPSCo248219 1712Qty.248Underground SwitchUG_Switch_location.shpPSCo816802 104Qty.81616 10Qty. 0kVA17400Qty. 10kVA4733 11Qty. 25kVA735100Qty. 30kVA11105 131Qty. 50kVA1119210 30Qty. 75kVA213339 80Qty. 100kVA347297 22Qty. 150KkVA301901Qty. 167kVA10309 10Qty. 300kVA310186 40Qty. 500kVA19091 30Qty. 750kVA9449 30Qty. 1000kVA5234 00Qty. 1500kVA3414 00Qty. 2000kVA144 00Qty. 2500kVA451 01Qty. Unknown52Underground Transformer Secondary ConnectionUG_Transformer_Secondary_Connection.shpPSCo14211417 13Qty.1421Underground Transformer Secondary LocationUG_Transformer_Secondary_Location.shpPSCo26772633 395Qty.2677Underground Primary CableUnderground TransformerUG_Transformer_Location.shpPSCo3498UG_Primary_w_cables_Route.shpPSCo6370 *Page 2 of 2
REC_NO SHAPE_AREA APN Easement USE BID SHAPE_LEN
PUBLIC EXHIBIT 2 Part 1
Public Property Spreadsheet Part 1 of 3 Parts - column headers for Recorded Documents compiled through January 2019 - Page 1 of 1
DATE FILED: December 19, 2019 4:51 PM
FILING ID: E6CAC62995A84
CASE NUMBER: 2019CV31226
REC_NO MAPPING_SO BID SHAPE_AREA APN Use of Easement Address/RGI Location Comments
PUBLIC EXHIBIT 2 Part 2
Public Property Spreadsheet Part 2 of 3 Parts - column headers for Recorded Documents compiled after January 2019 - Page 1 of 1.
Site_No Record_No BID Area APN Use of Easement Address/RGI Location Comments
PUBLIC EXHIBIT 2 Part 3
Public Property Spreadsheet Part 3 of 3 Parts - column headers for Unrecorded Documents provided by Xcel - Page 1 of 1.
PUBLIC EXHIBIT 3
GIS Map of the system.
There is no public version of E
An earlier version of the Confidential GIS Map with the existing facilities identified as to whether they would be
acquired by the City or retained by Xcel was provided to Xcel on February 7, 2019. In April 2019 Boulder
provided Xcel an additional layer package with two additional properties requested by Xcel, plus documents
recorded between January 1, 2012 and March 11, 2019. The facilities specified for acquisition by the City are
itemized on Confidential Exhibit 1 - Facilities Spreadsheet. The property interests that are listed on Confidential
Exhibit 2 - Property Interests Spreadsheet is a subset of the February 7, 2019 and April 2019 form of the GIS
Map and layer packages provided to Xcel. Upon entry of a Protective Order, the City can provide the GIS Map
with layer packages as Confidential Exhibit 3 – GIS Map that include only facilities identified on Exhibit 1 -
Facilities Spreadsheet and only the property interests identified on Confidential Exhibit 2 - Property Interests
Spreadsheet.
xhibit 3.
DATE FILED: December 19, 2019 4:51 PM
FILING ID: E6CAC62995A84
CASE NUMBER: 2019CV31226
EXHIBIT 4
EASEMENT SHARING
AGREEMENT
DATE FILED: December 19, 2019 4:51 PM
FILING ID: E6CAC62995A84
CASE NUMBER: 2019CV31226
EXHIBIT 5
Decision No. C17-0750
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO
PROCEEDING NO. 15A-0589E
IN THE MATTER OF THE APPLICATION OF THE CITY OF BOULDER, COLORADO FOR
APPROVAL OF THE PROPOSED TRANSFER OF ASSETS FROM PUBLIC SERVICE
COMPANY OF COLORADO TO THE CITY AND ASSOCIATED AUTHORIZATIONS AND
RELIEF.
DECISION GRANTING, IN PART AND WITH
CONDITIONS, AND DENYING, IN PART,
THIRD SUPPLEMENTAL VERIFIED APPLICATION
Mailed Date: September 14, 2017
Adopted Date: August 30, 2017
TABLE OF CONTENTS
I. BY THE COMMISSION .........................................................................................................3
A. Statement ...........................................................................................................................3
B. Third Supplemental Verified Application .........................................................................6
1. Proposed Assets for Transfer .....................................................................................7
2. Boulder’s Proposed Separation Plan ..........................................................................8
3. Four-Phase Proceeding and Other Regulatory and Court Activities ........................10
C. Procedural History ...........................................................................................................14
D. Overview of the Positions of the Intervening Parties ......................................................20
1. Public Service ...........................................................................................................20
2. Staff ..........................................................................................................................22
3. IBM ..........................................................................................................................24
4. OCC ..........................................................................................................................24
5. CU-Boulder ..............................................................................................................25
6. Climax ......................................................................................................................25
7. Evraz .........................................................................................................................26
8. Tri-State ....................................................................................................................26
II. LEGAL OBLIGATIONS AND RESPONSIBILITIES ..........................................................27Colorado PUC E-Filings SystemEXHIBIT 5
2017 PUC DECISION
DATE FILED: December 19, 2019 4:51 PM
FILING ID: E6CAC62995A84
CASE NUMBER: 2019CV31226
Before the Public Utilities Commission of the State of Colorado
Decision No. C17-0750 PROCEEDING NO. 15A-0589E
2
A. Commission Jurisdiction .................................................................................................27
B. Burden of Proof ...............................................................................................................30
C. Standard of Review .........................................................................................................31
III. ASSETS FOR TRANSFER FROM PUBLIC SERVICE TO BOULDER ............................33
A. Assets Inside the Substations ...........................................................................................36
1. Colocation at Substations .........................................................................................37
2. Positions of the Intervening Parties ..........................................................................42
3. Findings and Conclusions ........................................................................................43
B. Assets Outside the Substations ........................................................................................45
1. Boulder’s Position ....................................................................................................46
2. Positions of the Intervening Parties ..........................................................................47
3. Findings and Conclusions ........................................................................................48
C. Conditions on the Approval of Assets for Transfer .........................................................50
1. Access to Rights of Way and Other Real Property Rights .......................................50
2. Addressing Deficiencies in the List of Identified Assets .........................................51
3. Agreement(s) on Boulder’s Reimbursement of Public Service’s Costs...................53
4. Filing Deadline and Review of Compliance Conditions ..........................................54
IV. BOULDER’S PROPOSED ASSOCIATED AUTHORIZATIONS AND RELIEF ..............55
A. Joint Use of Poles ............................................................................................................55
1. Boulder’s Proposal ...................................................................................................55
2. Public Service’s Position ..........................................................................................56
3. Findings and Conclusions ........................................................................................57
B. Detailed Design Drawings and Specifications ................................................................58
1. Boulder’s Proposal ...................................................................................................58
2. Positions of the Intervening Parties ..........................................................................59
3. Findings and Conclusions ........................................................................................60
C. Construction of New Facilities and Reconfiguration of Existing Facilities ....................61
1. Boulder’s Proposal ...................................................................................................61
2. Positions of the Intervening Parties ..........................................................................62
3. Findings and Conclusions ........................................................................................65
D. Financing, Proposed Regulatory Asset, and Payment by Boulder ..................................66
1. Boulder’s Proposal ...................................................................................................66
Before the Public Utilities Commission of the State of Colorado
Decision No. C17-0750 PROCEEDING NO. 15A-0589E
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2. Positions of the Intervening Parties ..........................................................................68
3. Findings and Conclusions ........................................................................................70
E. Dispute Resolution ..........................................................................................................72
V. SERVICE TO IBM .................................................................................................................74
A. IBM’s Position .................................................................................................................74
B. Boulder’s Response .........................................................................................................77
C. Positions of Other Parties ................................................................................................78
D. Legal Analysis .................................................................................................................79
E. Findings and Conclusions ................................................................................................82
VI. DIRECTIVES TO PUBLIC SERVICE ..................................................................................83
A. Good Faith Cooperation with Boulder ............................................................................83
B. Obligation to Serve Until Cut-Over ................................................................................85
C. Cost Accounting ..............................................................................................................85
VII. PROCEEDINGS BEFORE THE COMMISSION .................................................................87
VIII. ORDER ............................................................................................................................88
A. It is Ordered That: ...........................................................................................................88
B. ADOPTED IN COMMISSIONERS’ DELIBERATIONS MEETING August 30, 2017.90
I. BY THE COMMISSION
A. Statement
1. The City of Boulder (Boulder or the City) has conditionally authorized the
formation of a municipal electric utility, and the Boulder City Council has voted to pursue the
acquisition of the electric utility assets in Boulder from Public Service Company of Colorado
(Public Service or the Company). There are approximately 52,500 Public Service customers in
Boulder that the City seeks to separate from Public Service’s service area. Boulder states that it is
not seeking to provide service to any customers located outside of the Boulder city limits.
Boulder, however, is not seeking to provide service to all customers within the city. Because of
Before the Public Utilities Commission of the State of Colorado
Decision No. C17-0750 PROCEEDING NO. 15A-0589E
4
the cost of serving two City-owned facilities within the city, Boulder has requested that Public
Service continue to serve those facilities.
2. On May 12, 2017, Boulder filed its Third Supplemental Verified Application
(Application) seeking approval of the transfer of certain assets from Public Service to the City.
Boulder also seeks associated authorizations and relief as set forth in the Application. Boulder
filed Direct Testimony and Exhibits of six witnesses in support of the Application.
3. Boulder states that the Colorado Public Utility Commission’s (Commission or
PUC) task in this Proceeding is to determine how Public Service’s system should be assigned,
divided, and jointly used and to ensure that the transfer of property required for Boulder to
municipalize will not impact the effectiveness, reliability, and safety of Public Service’s system
after separation.
4. Now being fully advised in this matter, the Commission grants, in part and
with conditions, and denies, in part, the Application. Our decision satisfies the requirements
stemming from the Boulder District Court in Order Re: Judicial Review of the Colorado Public
Utilities Commission Decision, City of Boulder v. Pub. Utils. Comm’n, Case No. 14CV30047
(Boulder Dist. Ct., January 14, 2015)(Boulder District Court Decision). Namely, our decision
determines—to the extent necessary at this time—how Public Service’s facilities should be
assigned, divided, or jointly used to protect Public Service’s electric distribution system’s
effectiveness, reliability, and safety. Our decision to grant conditionally a portion of the
Application also reflects two primary considerations: first, we seek to preserve Public Service’s
ability to serve its customers during separation and post-separation; and second, we seek to
protect Public Service’s ratepayers from being responsible for payment of any municipalization
and separation costs that Boulder should pay.
Before the Public Utilities Commission of the State of Colorado
Decision No. C17-0750 PROCEEDING NO. 15A-0589E
5
5. We approve the designation of certain assets for transfer from Public Service to
Boulder, subject to Boulder demonstrating compliance with three conditions as discussed in
detail below. The specific assets designated for potential transfer are located outside of the
substations that Public Service presently uses to serve its retail electric customers in the Boulder
area. In order to secure final approval of the designation of these assets for transfer, Boulder
must take the following actions: (1) file an agreement reached between Boulder and Public
Service that provides Public Service permanent non-exclusive easements and other necessary
real property rights for the location of its electric facilities within Boulder’s city limits that are
necessary for Public Service to provide service to its customers after separation; (2) correct the
errors and omissions from the list of assets for transfer outside of the substations and resubmit
the revised list of assets for final approval; and (3) file an agreement (or multiple agreements)
between Boulder and Public Service that address(es) the payment by Boulder to Public Service
of the costs incurred by Public Service to effectuate municipalization and the separation of
Public Service’s system into two separate systems.
6. We find that it is premature to designate any facilities inside the substations
for potential transfer to Boulder from Public Service. We conclude that it is reasonable
for Public Service and Boulder to rely upon the normal load interconnection request process
that is available to Boulder as a prospective transmission customer of Public Service. We
expect the transmission load interconnection process will establish the required configurations
and ownership arrangements within the substations without requiring further action by the
Commission before Boulder proceeds to condemnation.
7. Further, we deny Boulder’s other requests as set forth in its Application,
consistent with the discussion below.
Before the Public Utilities Commission of the State of Colorado
Decision No. C17-0750 PROCEEDING NO. 15A-0589E
6
8. We direct Public Service to assist Boulder in good faith in the City’s efforts to
satisfy the conditions set forth in this Decision for securing final Commission approval of the
designation of assets for transfer outside of the substations. We also direct Public Service to work
with Boulder in good faith pursuant to the transmission load interconnection process under the
Company’s Open Access Transmission Tariff (OATT), consistent with the discussion below.
9. We direct Public Service to serve customers within Boulder city limits until the
time when Boulder begins to operate its municipal electric utility (i.e., the Cut-Over Date).
We further direct Public Service to account for the costs it incurs associated with Boulder’s
municipalization and separation efforts for the purpose of review of such costs in future rate
cases and associated proceedings.
10. This Proceeding may conclude with a final decision designating the assets for
transfer (those outside of the substations) from Boulder to Public Service upon the Commission’s
satisfaction that Boulder has complied with the three conditions set forth in this Decision. In the
future, Boulder and Public Service shall file an application in a separate proceeding for final
approval of the transfer of assets, pursuant to § 40-5-105, C.R.S., prior to when Boulder begins
to operate its municipal electric utility.
B. Third Supplemental Verified Application
11. Boulder asks the Commission to approve a proposed separation of the electric
distribution system to permit, on the one hand, the City to provide electric service to its future
customers within the city limits with City-owned facilities; and, on the other hand, Public
Service to provide electric service to the Company’s customers in unincorporated Boulder
County. The specific assets that Boulder seeks to acquire, according to the Application, were
identified during the development of a “Separation Plan.”
Before the Public Utilities Commission of the State of Colorado
Decision No. C17-0750 PROCEEDING NO. 15A-0589E
7
12. Boulder asks the Commission to approve the transfer of Public Service’s assets
associated with the distribution of electricity that are needed for Boulder to own and operate a
municipal electric utility. Boulder also requests that the Commission approve the proposed
planning level configuration of the Separation Plan that identifies the construction of new
facilities and reconfiguration of the existing facilities that will be necessary for the existing
system to operate as two separate systems. Specifically, Boulder requests that the Commission
find that the Separation Plan will, if implemented as proposed by the City, result in a system for
Public Service that is as effective, reliable, and safe as Public Service’s current system.
1. Proposed Assets for Transfer
13. Boulder’s Application filing, including Direct Testimony and Exhibits, describes
in detail the proposed assets for transfer.
14. Boulder separates the assets into two categories: (1) the assets for approval that
are inside the six substations that Public Service currently uses to provide retail electric service
to customers within Boulder (identified as Substations A, B, C, D, E, and F);1 and (2) the assets
for transfer that are outside of those substations.2
15. The assets for transfer outside the substations include the following: the electric
distribution property, plant, and equipment used, in whole or in part, to serve electric customers
within Boulder, whether located within or outside the city limits, including: overhead and
underground distribution lines; distribution transformers (both pole and pad mount); overhead
and underground secondary and service conductors; fiber optic and other communications
1 See Hearing Exhibits 202 and 202A, Nickell Answer, Attachment CSN-1.
2 See, e.g., Hearing Exhibits 103 and 103A, Ghidossi Direct, Attachment TAG 5, Technical Volume Part I,
p. 11.
Before the Public Utilities Commission of the State of Colorado
Decision No. C17-0750 PROCEEDING NO. 15A-0589E
8
equipment associated with the distribution system; customer meters and other equipment;
easements; and associated property rights for the electric distribution system. The assets for
transfer also include streetlights and traffic signal lights owned by Public Service and located
within the city limits.
16. The assets for transfer inside the substations include protective equipment on the
high voltage side of transformers (including relaying, communications, and control equipment),
power transformers, distribution switchgear, and easements.
17. Boulder states that it is not seeking authority to transfer any other assets,
including any of Public Service’s generation assets, transmission assets, the Company’s
Certificate of Public Convenience and Necessity (CPCN), goodwill, consulting agreements,
brands, advertising, or employees.
2. Boulder’s Proposed Separation Plan
18. Boulder’s proposed Separation Plan consists of: (1) two separation models—a
Synergi version (using proprietary engineering software) and a Geographic Information System
(GIS) version; (2) the testimonies of two engineers hired by Boulder to provide expert testimony
in this Proceeding—Mr. Thomas A. Ghidossi and Mr. Steven D. Catanach; and (3) certain
attachments to their pre-filed testimony. Boulder argues that its proposed Separation Plan is the
result of extensive engineering design and testing that is sufficient to prove that it will ensure
Public Service has a system after separation that is at least as effective, reliable, and safe to
operate as the existing system.
19. Boulder states that its proposed Separation Plan is presented at a planning level
of engineering, which, according to the City, is a mid-level design having more detail than
conceptual design, but less detail than a final design. Boulder argues that this planning level
Before the Public Utilities Commission of the State of Colorado
Decision No. C17-0750 PROCEEDING NO. 15A-0589E
9
of engineering provides: (1) sufficient detail to guide long-term decisions and perform cost
estimates in the 30 percent contingency range; (2) general construction and modification
descriptions; (3) preliminary routes and configurations; and (4) performance analysis indicating
that construction and modifications are intended to meet Public Service’s criteria. According to
Boulder, the Separation Plan may serve as a blueprint for the design of the construction phase of
the work by combining known, existing facilities with facilities to be constructed in order to
maintain electrical continuity and system reliability.
20. Boulder’s proposed Separation Plan is primarily the result of its planning of a “No
Distribution Interconnection” scenario (NDI Plan), where feeders would be extended, in some
cases across the City, to provide a tie between substation transformers that are owned and
operated by each serving utility: Public Service and Boulder. Boulder explains that the result is
essentially a separate distribution loop for Public Service that is being created around the City to
allow Public Service to have necessary back-up sources, as well as new ties. In turn, Boulder
will have the necessary back-up sources it needs on the Boulder system in order for it to provide
service within the City.
21. The NDI Plan applies to all “study areas” in Boulder, with the exception of Area
1.3 Certain out-of-city customers in Area 1 would follow an alternative “Emergency Back-up
Plan” (EB Plan). Boulder explains that an EB Plan would allow Boulder’s system to normally
operate independently from Public Service’s system. However, during an outage or during
maintenance, construction, or other activities requiring back-up, one utility will provide back-up
to the other from key interconnection points on the system. Boulder estimates that an NDI Plan
3 There are ten study areas depicted in Hearing Exhibits 105, 105A, and 105B, Catanach Direct,
Attachment SDC-2, p. 1.
Before the Public Utilities Commission of the State of Colorado
Decision No. C17-0750 PROCEEDING NO. 15A-0589E
10
for all of Area 1 would cost approximately $1 million more than an EB Plan for the eight
out-of-City customers.
22. Notwithstanding the proposed separation of the two systems, Boulder proposes
that Public Service continue to serve two city-owned parcels within its city limits: the facilities
at Boulder Reservoir and the Open Space and Mountain Parks Department facilities located at
Cherryvale Road and South Boulder Road, respectively.
23. Boulder acknowledges that Public Service developed the existing distribution
system without regard to the City’s municipal boundaries, recognizing that Public Service
designed its system to serve all of the electric customers within its designated service territory.
Boulder also acknowledges that throughout the existing system, individual feeders routinely
serve customers both inside and outside the city limits and often cross the boundaries of the City
several times.
24. Boulder states that the implementation of the Separation Plan will entail the
addition of new substation transformers and the construction of new backbone feeders that are
tied together to provide back-up. Boulder estimates that the construction and reconfiguration
work in the Separation Plan will take at least three years to complete.
3. Four-Phase Proceeding and Other Regulatory and Court Activities
25. Boulder proposes that this Proceeding be divided into four phases. Boulder’s
plan is that itself and Public Service would both undertake various activities between the
phases. Further, Boulder and Public Service would engage in other proceedings related to
municipalization, including potentially, a condemnation proceeding to acquire the assets needed
to operate a municipal electric utility as well as other proceedings before this Commission
Before the Public Utilities Commission of the State of Colorado
Decision No. C17-0750 PROCEEDING NO. 15A-0589E
11
and the Federal Energy Regulatory Commission (FERC) to address electric generation and
generation-related stranded costs.
26. Boulder argues that the Commission will retain jurisdiction over all matters
through all four of the City’s proposed phases for this Proceeding, because Public Service will
continue to own the distribution system in Boulder and because Public Service will continue to
have a CPCN to provide retail electric service in the area. Boulder explains that Public Service
would operate, maintain, and improve the system in Boulder until the separation of the system is
complete. Boulder argues this approach would eliminate any impact to customers in the interim
period and would permit Public Service to continue to receive the benefits and obligations of
asset ownership within the Boulder city limits. In addition, Boulder proposes that Public
Service, using a third-party contractor in coordination with the City, would construct all new
facilities and engage in any reconfiguration necessary to separate the systems, in conformance
with detailed design drawings and specifications as approved by the Commission. Boulder also
proposes that Public Service finance this construction and reconfiguration work, where all costs
associated with these activities would be accounted for in a “regulatory asset,” subject to various
Commission reviews and prudency determinations, for repayment by Boulder after the
implementation of the Separation Plan is complete.
27. In order to ensure Commission jurisdiction over all matters in this Proceeding,
Boulder proposes that Public Service enter an agreement with Boulder delaying issuance of a
Rule and Order in the district court condemnation proceeding. Specifically, the agreement would
provide the following: (1) the payment of the condemnation court’s valuation award would be
deferred until after construction of the Separation Plan is complete; (2) there would be no interest
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Decision No. C17-0750 PROCEEDING NO. 15A-0589E
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paid on such deferred amounts; and (3) the entry of the Rule and Order would be delayed until
the systems are fully separated.
28. Phase 1 of this Proceeding is intended to support Boulder’s attempt to acquire the
assets from Public Service by negotiation, or if unsuccessful, to file a condemnation case to
acquire the assets approved by the Commission for transfer. Phase 2 is centered on a “Go/No-Go
Decision” when Boulder will determine, prior to the beginning of any construction and
reconfiguration of the system, whether it can move forward with municipalization. The final two
phases culminate in the “Cut-Over Date” which is when Boulder begins to operate its municipal
electric utility.
29. In this Phase 1, the City is asking the Commission to approve: (1) the transfer of
the assets Boulder wishes to acquire from Public Service so the City may move forward to
condemnation; and (2) the Separation Plan. Boulder states that once the Commission approves
the transfer of assets, Boulder can move to condemnation in order to acquire the assets.
30. Boulder proposes that after the Commission approves the Separation Plan, Public
Service, in consultation with Boulder’s engineers, would contract with third-party engineers to
complete the final design for the Separation Plan, solicit bids for the necessary construction
work, and develop an estimated timeline for the separation.
31. Boulder then proposes to return to the Commission in Phase 2, when it will
seek Commission approval of: (1) detailed design drawings and specifications consistent with a
Commission-approved Separation Plan; (2) the bid for the construction and reconfiguration work
necessary to implement the Separation Plan; and (3) an estimated construction timeline. Boulder
states that Phase 2 would be concurrent with a condemnation proceeding in Boulder District
Court.
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32. At the conclusion of Phase 2 and the conclusion of the condemnation proceeding,
but prior to the start of construction and reconfiguration of the systems, Boulder proposes that it
would determine whether it could proceed with municipalization. The Go/No-Go Decision
would be premised on the cost of acquisition, separation, and other start-up costs.
33. Should Boulder decide to continue with municipalization of the electric
distribution system, it would move into Phase 3 of this Proceeding. Boulder proposes that
Public Service’s third-party contractor, consistent with the Separation Plan, would construct new
facilities and reconfigure existing facilities during this phase. Boulder further proposes that costs
incurred during this time would be tracked in a regulatory asset. Phase 3 would also entail
Commission approval of Boulder’s “Cut-Over Plan.” During Phase 3, Boulder anticipates a need
to obtain information necessary to operate an electric distribution system and states that it will
require a waiver of certain of the Commission’s Data Privacy Rules.
34. Boulder proposes to complete this Proceeding in Phase 4, in which Boulder would
make a compliance filing, notifying the Commission that the electric distribution system has
successfully been divided into two independent systems and containing the final total costs
incurred in separation and reconfiguration of the system, plus interest equal to Public Service’s
weighted average cost of capital. After Boulder has paid the condemnation award and the costs
tracked through the regulatory asset, the City would receive the court title and possession of the
electric distribution system assets and the system would be separated for independent operations
at the Cut-Over Date.
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Decision No. C17-0750 PROCEEDING NO. 15A-0589E
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C. Procedural History
35. The Application is the third iteration of Boulder’s request for approval of the
transfer of assets and associated orders and directives from the Commission related to its
municipalization efforts.
36. On July 7, 2015, Boulder filed a Verified Application (First Application) which
caused this Proceeding to be opened. Boulder initially sought various approvals from the
Commission to acquire facilities from Public Service that would serve customers both within
Boulder city limits and outside the city’s boundaries. Boulder filed the application with Direct
Testimony and Exhibits of nine witnesses.
37. The Parties to this Proceeding were established through Decision
Nos. C15-0888-I, issued on August 14, 2015, and C15-0946-I, issued on August 28, 2015:
Boulder; Public Service; Staff of the Colorado Public Utilities Commission (Staff); IBM, Inc.
(IBM); the Colorado Office of Consumer Counsel (OCC); Tri-State Generation and Transmission
Association, Inc. (Tri-State); Climax Molybdenum Company (Climax); CF&I Steel, L.P., doing
business as Evraz Rocky Mountain Steel (Evraz); Boulder Chamber of Commerce; University
of Colorado Boulder (CU-Boulder); and Leave BoCo Out. Poudre Valley Rural Electric
Association, Inc. (PVREA) and United Power, Inc. were granted amicus curiae status.
38. Through Decision No. C15-1360-I, issued on December 30, 2015, the
Commission dismissed the portions of the First Application requesting acquisition of facilities
used exclusively to serve Public Service customers outside of the Boulder city limits. The
Commission also granted Boulder’s request to conduct discovery and to supplement its
application in a future filing.
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39. Through Decision No. C16-0336-I, issued on April 19, 2016, the Commission
approved modified discovery procedures in order to allow Boulder to obtain information
necessary to file a second supplemental application.
40. On September 28, 2016, Boulder filed its Second Supplemental Verified
Application (Second Supplement). Boulder filed the Second Supplement with Direct Testimony
and Exhibits of eight witnesses.
41. The Commission deemed the Second Supplement complete for purposes of
§ 40-6-109.5, C.R.S., through Decision No. C16-1053-I, issued on November 17, 2016. That
decision also required Boulder to provide notice of the Second Supplement to its residents and
residents of enclaves outside of the Boulder city limits who may be affected by the Second
Supplement.
42. Through Decision No. C16-1148-I, issued on December 15, 2016, the
Commission established a procedural schedule for the consideration of the Second Supplement.
An evidentiary hearing was scheduled to begin on April 26, 2017 and to continue through May 5,
2017. The deadline for a decision on the Second Supplement was established as June 15, 2017
pursuant to § 40-6-109.5(1), C.R.S.
43. Through Decision No. C17-0052-I, issued on January 20, 2017, the Commission
granted the intervention filed by Twin Lakes Action Group (TLAG).
44. On January 27, 2017, through Decision No. C17-0084-I, the Commission required
that the parties file legal briefs to certain questions no later than February 17, 2017, and also
required that the parties confer and file a joint statement of the remaining legal and factual issues
in dispute no later than March 3, 2017.
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45. Through Decision No. C17-0131-I, issued on February 14, 2017, the Commission
granted the intervention filed by the International Brotherhood of Electrical Workers, Local
No. 111 (Local 111).
46. On February 17, 2017, Answer Testimony and Exhibits were filed on behalf of
Public Service (seven witnesses), IBM (three witnesses), Staff (one witness), the OCC (one
witness), and Local 111 (one witness). All of the intervening parties opposed approval of all or
parts of the Second Supplement.
47. Legal briefs were filed on February 17, 2017 by Boulder, Public Service, Staff,
IBM, the OCC, and TLAG, in accordance with Decision No. C17-0084-I.
48. On March 27, 2017, Boulder filed a Motion to Withdraw a Portion of its
Application and Direct Testimony in Support Thereof (Motion to Withdraw).
49. On March 30, 2017, Boulder filed Rebuttal Testimony and Exhibits of six
witnesses. Also on March 30, 2017, Cross-Answer Testimony and Exhibits were filed by Public
Service (three witnesses), Staff (one witness), and CU-Boulder (one witness).
50. The Commission convened a prehearing conference in this matter on April 19,
2017.
51. In Decision No. C17-0318-I, adopted at the prehearing conference and issued on
April 24, 2017, the Commission found that the Motion to Withdraw and the City’s Rebuttal
Testimony and Exhibits had altered the relief Boulder seeks in this Proceeding substantially
enough to potentially prejudice intervening parties, should the hearing commence as scheduled
on April 26, 2017. The Commission, therefore, vacated the remaining procedural schedule,
including the evidentiary hearings scheduled to begin on April 26, 2017, and ordered Boulder to
file a Third Supplemental Verified Application to ensure that intervening parties had adequate
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Decision No. C17-0750 PROCEEDING NO. 15A-0589E
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clarity as to the relief sought by Boulder. The Commission extended the deadline for a final
decision an additional 90 days, or until September 13, 2017, pursuant to § 40-6-109.5(4), C.R.S.
Determining that the pre-filed testimony submitted before the prehearing conference would not
be part of the evidentiary record at hearing, the Commission rescheduled the hearing to begin on
July 26, 2017.
52. On May 12, 2017, Boulder filed its Third Application which is the Application
that is addressed by this Decision. Boulder filed Direct Testimony and Exhibits of six witnesses
in support of the Application, including: (1) Heather Bailey, Executive Director of Energy
Strategy and Electric Utility Development for the City of Boulder (Hearing Exhibit 101);
(2) Thomas A. Ghidossi, P.E., of Exponential Engineering Company (Hearing Exhibits 103
and 103A); (3) Steven D. Catanach, P.E. (Hearing Exhibits 105, 105A, and 105B);
(4) Robert Eichem, Chief Financial Advisor to the City of Boulder (Hearing Exhibit 111);
(5) Christopher J. Meschuk, Senior Planner for the City of Boulder (Hearing Exhibit 100); and
(6) Kenneth K. Skogg, an attorney experienced in commercial litigation with an emphasis on
disputes based on or related to real estate (Hearing Exhibit 107). These are the same six
witnesses that filed Rebuttal Testimony and Exhibits addressing the Second Supplement.
53. On June 16, 2017, the following intervening parties filed Answer Testimony and
Exhibits: Public Service (eight witnesses), IBM (three witnesses), Staff (two witnesses), the
OCC (two witnesses), and Tri-State (one witness).
54. Public Service submitted the Answer Testimony and Exhibits of the following:
(1) David L. Eves, President of Public Service Company of Colorado (Hearing Exhibit 200);
(2) Chad S. Nickell, Manager of Distribution System Planning and Strategy of Xcel Energy
Services Inc. (Hearing Exhibits 202 and 202A); (3) Helen C. Atkeson, an attorney experienced in
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public finance (Hearing Exhibit 208); (4) Deborah A. Blair, Director, Revenue Analysis of Xcel
Energy Services Inc. (Hearing Exhibit 209); (5) Hubert A. Farbes, Jr., a real estate and
construction litigator (Hearing Exhibit 212); (6) Leslie Fields, an attorney whose practice focuses
almost exclusively on eminent domain matters (Hearing Exhibit 214); (7) Lawrence J. Gelbien, a
consultant from Navigant Consulting and a former Vice President of Engineering for an electric
utility (Hearing Exhibit 205); and (8) Betty L. Mirzayi, Manager Transmission Planning West for
Xcel Energy Services Inc. (Hearing Exhibit 211).
55. IBM submitted the Answer Testimony and Exhibits of: (1) Leo M. Ladaga,
Senior Service Delivery Manager—US (Hearing Exhibits 500 and 500A); (2) Brody O. Wilson,
P.E., Site Energy Coordinator at IBM’s Boulder campus (Hearing Exhibits 501 and 501A); and
(3) Eugene Shlatz, a Director in Navigant Consulting’s Energy Practice (Hearing Exhibits 503
and 503A).
56. Staff submitted the Answer Testimony and Exhibits of: (1) Gene L. Camp, P.E.,
Chief Engineer (Hearing Exhibit 302); and (2) Sharon Podein, P.E., Senior Engineer (Hearing
Exhibit 300).
57. The OCC submitted the Answer Testimony and Exhibits of:
(1) Ronald Fernandez, Financial Analyst (Hearing Exhibit 400); and (2) Chris Neil,
Rate/Financial Analyst (Hearing Exhibit 402).
58. Tri-State submitted the Answer Testimony and Exhibits of Grant D. Lehman,
Senior Manager, Transmission Engineering and Construction, Tri-State Generation and
Transmission Association, Inc. (Hearing Exhibits 600 and 600A).
59. On July 10, 2017, Boulder filed Rebuttal Testimony and Exhibits of the same six
witnesses that filed Direct Testimony and Exhibits: Bailey (Hearing Exhibit 102), Catanach
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(Hearing Exhibits 106 and 106A), Eichem (Hearing Exhibit 112), Ghidossi (Hearing Exhibits
104 and 104A), Meschuk (Hearing Exhibit 110), and Skogg (Hearing Exhibit 108).
60. Cross-Answer Testimony and Exhibits were filed by Public Service (six
witnesses), Staff (two witnesses), IBM (two witnesses), the OCC (two witnesses), and Tri-State
on July 10, 2017.
61. Public Service submitted testimony of Mr. Eves (Hearing Exhibit 201), Ms. Blair
(Hearing Exhibit 210), Mr. Farbes (Hearing Exhibit 213), Ms. Fields (Hearing Exhibit 215),
Mr. Gelbien (Hearing Exhibit 206), and Mr. Nickell (Hearing Exhibit 203), as well as
Mr. John D. Lee, Senior Director, Electric Distribution Engineering for Xcel Energy Services
Inc. (Hearing Exhibit 207).
62. Staff filed testimony of Mr. Camp (Hearing Exhibit 303) and Ms. Podein (Hearing
Exhibit 301).
63. The OCC filed testimony of Mr. Fernandez (Hearing Exhibit 401) and
Mr. Neil (Hearing Exhibit 403). Tri-State filed testimony of Mr. Lehman (Hearing Exhibit 601).
64. On July 21, 2017, Public Service filed Surrebuttal Testimony directed at
Boulder’s Rebuttal Testimony and Exhibits. Testimony was submitted by Fields (Hearing
Exhibit 216) and Nickell (Hearing Exhibit 204).
65. The Commission conducted a prehearing conference on July 21, 2017. At the
prehearing conference, the parties agreed that Boulder could present oral testimony in response
to the issues raised in Public Service’s Surrebuttal Testimony.
66. The Commission conducted a nine-day evidentiary hearing on the Application
beginning on July 26, 2016 and extending through August 7, 2017. Boulder witness Ghidossi
was permitted to present oral testimony in response to the Surrebuttal Testimony of Public
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Service witness Nickell,4 and Boulder witness Skogg was permitted to present oral testimony in
response to the Surrebuttal Testimony of Public Service witness Fields.5
67. During the course of the hearing, Hearing Exhibits 100 through 112, 200 through
216, 300 through 303, 400 through 403, 500 through 504, and 600 through 601 were offered and
admitted into the evidentiary record in this Proceeding. Hearing Exhibit 100 is the Application
while the remainder of the Hearing Exhibits correspond to the pre-filed Direct Testimony,
Answer Testimony, Rebuttal Testimony, Cross-Answer Testimony, and Surrebuttal Testimony.
Hearing Exhibits 700 through 708, 710 through 740, 742 through 743, 745 through 761,
764 through 769, 771, and 773 were offered and admitted as evidence during either direct
examination, cross-examination, or redirect examination of the witnesses. Hearing Exhibit 772
was marked for identification, offered, but then withdrawn. Hearing Exhibits 709, 741, 744, 762,
763, and 770 were not admitted.
68. On August 15, 2017, final statements of position were filed by Boulder, Public
Service, Staff, IBM, OCC, CU-Boulder, Climax, Tri-State, and Evraz.
69. Numerous public comments were submitted to the Commission during the course
of this Proceeding.
D. Overview of the Positions of the Intervening Parties
1. Public Service
70. Public Service rejects Boulder’s position that its Separation Plan is approvable at
this time, and argues that the Commission must have substantially more information than the
engineering analyses that Boulder provided in order to be in a position to render a decision as to
4 Hearing Transcript, July 27, 2017 at 103-147.
5 Hearing Transcript, July 31, 2017 at 11-24.
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whether safety, reliability, and effectiveness will be preserved and as to whether no costs of
municipalization will be shifted to Public Service and its remaining customers.
71. Public Service further argues that Boulder cannot engage in the mandatory,
pre-filing good faith negotiations for filing a condemnation action based upon Boulder’s
proposed Separation Plan as it currently exists.
72. Public Service asserts that Boulder’s requests for relief must be within the scope
of the Commission’s jurisdiction to grant, but that most elements of the Separation Plan are not
within that scope. Public Service contends, for example, that the Commission does not have the
authority to require Public Service to engage in the following: (1) finance the entire separation
and construction; (2) construct facilities for Boulder; (3) construct facilities for Public Service
and to separate existing facilities on Boulder’s terms and conditions; (4) waive certain rights
which would otherwise exist in condemnation; and (5) “negotiate” up to a dozen or more
agreements with Boulder. Public Service argues that Boulder’s financing and construction
proposals essentially are requests that the Commission order Public Service to provide lending
services and general contractor services to Boulder. Public Service further argues that while
the Company could voluntarily agree with Boulder to enter various agreements, it cannot be
compelled to enter into such contracts.
73. Public Service also contends that Boulder must meet its burden of proof in this
Proceeding, not in later phases, to demonstrate that Boulder’s proposed Separation Plan will
enable Public Service to provide the same safe, reliable, and effective service for its customers as
it provides today.
74. Public Service asserts that the scope of work and final designs must be completed
and provided to the Commission for review. In other words, Public Service argues that the flaws
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of the Separation Plan need to be fixed, that the Company and Boulder need to prepare the scope
of work and final designs in accordance with that revised Separation Plan, and that the assets for
transfer then should flow from that work.
75. Public Service concludes that the fastest way for Boulder to get to the Go/No Go
Decision is for the Commission to reject the Application, but decide as many issues as can be
decided now in order that Boulder has the guidance it needs to move forward.
76. In summary, Public Service suggests that the Commission find that it is necessary
for Boulder to do the following: (1) agree with Public Service’s proposed modifications
concerning substations, joint use of poles, and other feeder lines; (2) fund the preparation of the
scope of work, detailed design drawings and specifications, cost estimates, and timeline;
(3) apply for and complete the transmission load interconnection request process; and (4) provide
the missing information concerning real property rights (Boulder ’s and Public Service’s) and the
terms and conditions of all required agreements. Public Service argues that if those conditions
are met, Boulder could return to the Commission and request approval of its Separation Plan, and
the Commission could expect to be in a position to make a preliminary determination as to
whether Boulder’s proposed, modified Separation Plan will preserve safety, reliability, and
effectiveness as well as provide Boulder with a conditional transfer order (or, in other words, an
order sufficient for Boulder to proceed to condemnation).
2. Staff
77. Staff also takes the position that more siting and engineering work needs to be
performed by both Boulder and Public Service before the Commission can render an opinion as
to whether the Separation Plan is effective as well as safe, reliable, and not contrary to the public
interest.
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78. Staff envisions Public Service and Boulder working collaboratively towards
finalizing the Separation Plan and returning to the Commission for final approval. Staff further
suggests that the Commission require an independent engineer, overseen and selected by
the Commission or Staff, to facilitate collaboration between Boulder and Public Service and
to monitor the resolution of the remaining issues and the engineering details necessary for
Commission approval of the Separation Plan. Staff also proposes regular reporting on the
progress made by Boulder and Public Service.
79. Despite its position that the Separation Plan is not yet ready for approval, Staff
recommends that the Commission approve the power facilities portion of the list of assets for
transfer, subject to a reasonable true-up process necessary due to the changes that may result
from the effect of the detailed design on certain elements of the Separation Plan, as well as
normal changes to the system that occur over time.
80. Staff suggests that the Commission require Public Service to work collaboratively
with Boulder to identify the non-recorded real property interests to be included in the final list of
assets for transfer. Staff further recommends that the Commission find that Boulder cannot
complete the condemnation process before the Commission approves the real property additions
to the list of assets for transfer.
81. Staff argues that any order approving the transfer of assets to Boulder must be
conditioned upon Boulder’s full satisfaction of all financial obligations to Public Service,
including any disputed payments that the Commission rules that Boulder must nonetheless pay.
Staff also suggests that the Commission reserve an ability to consider Boulder’s operational
capability, after the Go/No-Go Decision but before the final transfer of assets occurs.
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3. IBM
82. IBM argues that the lack of detail in Boulder’s Application is a sufficient basis to
deny the application in its entirety. IBM contends that Boulder has provided a Separation Plan
for a “paper utility,” showing no evidence that it can actually operate that utility, either from a
financial or technical perspective. IBM contends that this lack of detail places IBM at significant
financial and reputational risk because of IBM’s need for 99.9 percent reliability as well
as penalty provisions in its contracts with its customers. IBM further contends that it is
contractually obligated to advise certain customers if backup generation is required and that
Boulder’s Separation Plan will require back up generation for weeks, and possibly months during
construction. IBM further contends that the Boulder campus is IBM’s largest facility in the world
and that it has invested millions of dollars in configuring the substation.
83. IBM states that if the Commission is not yet prepared to deny the Application
outright, it can and should decide the IBM-specific issue and deny the Application as to IBM.
4. OCC
84. The OCC requests that the Commission deny Boulder’s Application without
prejudice due to the numerous outstanding and significant issues raised in this Proceeding. For
example, concerning the list of assets for transfer, the OCC argues that the Commission cannot
approve the list at this time because it is a “snapshot in time” in that it is incomplete and already
out of date.
85. The OCC contends non-Boulder Public Service ratepayers should suffer no harm
as to costs. Specifically, OCC contends that no rate increases, directly or indirectly, should result
from Boulder’s municipalization efforts. Along these lines, the OCC takes the position that the
litigation costs incurred by Public Service with regard to Boulder’s municipalization efforts
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should be a cost paid by Boulder and not passed on to ratepayers. The OCC argues that it is in
the public interest for the Commission to address this cost recovery issue expressly in this
Proceeding and to preclude the Company from including any Boulder municipalization costs,
such as litigation costs for this Proceeding, in its upcoming electric rate case.
86. With regard to next steps, the OCC suggests that the Commission: (1) consolidate
Phase 1 and Phase 2 activities; (2) adopt the “next steps” proposed by Public Service; (3) create a
series of deadlines for the parties; and (4) enhance Commission oversight through the inclusion
of Staff in these activities.
5. CU-Boulder
87. CU-Boulder argues that it is contrary to the public interest to require Boulder
and its citizens to pay all the legal and political costs Public Service incurs in connection with
Boulder’s efforts to municipalize. CU-Boulder further argues that the Commission lacks
authority to order Boulder to pay any costs that have already been incurred. Future costs incurred
to protect the Company’s business interests, customers, and the statewide grid should be paid by
Public Service’s ratepayers as a whole or by the Company’s shareholders.
88. CU-Boulder requests that the Commission order that Boulder only pay prudently-
and actually-incurred costs of construction and separation, which order should be implemented
through a transparent, fair, and periodic Commission-administered process.
6. Climax
89. Climax argues that the Commission should prevent Public Service’s customers
outside Boulder city limits from bearing any costs resulting from the City’s efforts to create
a municipal electric utility, whether those costs have been incurred either in the past or will be
incurred before or after the City’s Go/No-Go decision. Climax states that none of the costs
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incurred by the City or the Company as a result of the City’s efforts to municipalize, whether the
City is successful or not, have been or will be caused by the “remaining customers.”
7. Evraz
90. Evraz similarly requests that the Commission issue an order precluding Public
Service from passing any costs of municipalization through to ratepayers remaining on the
Company’s system. Evraz adds that it is onerous for customers not represented by the OCC to
participate in multiple proceedings related to the same topic.
8. Tri-State
91. Tri-State owns equipment located in Substation F and has an agreement with
Public Service concerning construction, operations, and maintenance activities in Substation F.
Tri-State relies on this agreement and its equipment to ensure the reliable delivery of electric
power to Tri-States’ member’s system, Poudre Valley Rural Electric Association (PVREA),
which also owns certain equipment located in Substation F. Tri-State intervened to ensure that
its ability to deliver safe, effective, reliable electric power to PVREA is not adversely impacted.
Tri-State takes no position on the merits of Boulder’s plan but asks for the following: (a) to the
extent the Commission makes any decisions related to Substation F or provides any direction to
Boulder and Public Service with regard to Substation F, such decisions or direction should not
constrain or predetermine any of the issues to be decided in the process applicable to determining
the specific reconfiguration of Substation F;6 (b) any Commission decisions or direction
concerning Substation F should require Boulder to ensure that Tri-State’s ability to provide safe,
effective, and reliable service to its Member Systems through Substation F not be adversely
6 Hearing. Exhibit 600, Lehman Answer at 11:20-24.
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impacted as a result of accommodating Boulder’s proposal;7 (c) Tri-State should be protected
against any costs associated with modifications to Substation F needed to accommodate
Boulder’s proposal;8 and (d) In the event that Substation Alt_EF is found to be feasible, meets the
separation and service objectives of Boulder and Public Service, and is otherwise consistent with
the Commission’s findings in this Proceeding, Boulder should be required to implement that
alternative rather than its proposals for Substation F.9
II. LEGAL OBLIGATIONS AND RESPONSIBILITIES
A. Commission Jurisdiction
92. As has long been recognized, the Commission derives its authority from
Colo. Const. art. XXV, and with respect to electric service, from Public Utilities Law. As relates
to its constitutionally derived authority, article XXV bestows on the Commission:
all power to regulate the facilities, service and rates and charges therefor,
including facilities and service and rates and charges therefor within home rule
cities and home rule towns, of every corporation, individual, or association
of individuals, wheresoever situate or operating within the State of Colorado,
whether within or without a home rule city or home rule town, as a public utility,
as presently or as may hereafter be defined as a public utility by the laws of the
State of Colorado ….
Article XXV vests all power in the PUC to regulate public utilities both outside and within home
rule cities.10 However, such jurisdiction does not extend to municipally owned utilities except to
the extent that their operations are outside city limits (discussed in more detail below).11
7 Id. at 11:24 – 12:1.
8 Id. at 12:1-2.
9 Hearing Exhibit 601, Lehman Cross-Answer at 6:1-6.
10 See generally, IREA v. District Court, 4414 P.2d 911 (1966); Pub. Utils. Comm’n. v. City of Durango,
469 P.2d 131 (1970); City of Craig v. Pub. Utils. Comm’n., 656 P.2d 1313 (Colo. 1983).
11 Article XXV – “…nothing herein shall be construed to apply to municipally owned utilities.” See, City
and County of Denver v. Pub. Utils. Comm’n., 507 P.2d 871, 875 (Colo. 1973).
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93. The Commission also derives its authority from Public Utilities Law.12 Those
statutes, with their attendant case law, establish the scope of the Commission’s authority over
public utilities. The statutory authorities applicable in this matter include the following:
§ 40-1-103, C.R.S.; §§ 40-4-101, 102, 103, and 105, C.R.S.; and § 40-5-105, C.R.S.
94. The Colorado Supreme Court has defined the Commission as “an administrative
agency whose function is to regulate public utilities within the parameters established by the
Colorado Constitution and the Public Utilities Law.”13 In defining a “public utility,”
§ 40-1-103(1)(a)(I), C.R.S., provides in relevant part:
The term “public utility”, when used in articles 1 to 7 of this title, includes every
common carrier, pipeline corporation, gas corporation, electrical corporation,
telephone corporation, water corporation, person, or municipality operating for
the purpose of supplying the public for domestic, mechanical, or public uses and
every corporation, or person declared by law to be affected with a public interest,
and each of the preceding is hereby declared to be a public utility and to be
subject to the jurisdiction, control, and regulation of the commission and to the
provisions of articles 1 to 7 of this title.
Determining what constitutes a “public utility” is essential in defining the scope of Commission
jurisdiction. The Commission has regularly cited specific case law when making this
determination. While the Supreme Court (and the Commission) initially relied on a common law
test to determine whether an entity was impressed with a public interest and held itself out as
serving or ready to serve all members of the public, to define it as a utility, the Supreme Court
subsequently rejected the prior common law test in favor of a statutory determination. The
Supreme Court held that:
Whether a particular entity is or is not a public utility should therefore be
analyzed at least at first, from the standpoint of whether the entity is a public
12 Title 40, C.R.S., articles 1 through 7, generally.
13 City of Montrose v. Pub. Utils. Comm’n., 629 P.2d 619, 622 (Colo. 1981); Colorado Office of Consumer
Counsel v. Mountain States Telephone & Telegraph Co., 816 P.2d 278, 283 (Colo. 1991).
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utility within the contemplation of the constitution and the statutes concerning the
PUC and, if so, whether that public utility is exempted from regulation by the
constitution or statute.14
95. While the Commission possesses broad authority over public utilities, such
jurisdiction does not extend to municipally owned utilities except to the extent that such utility
operations are outside city limits.15 Article XX § 1 of the Colorado Constitution establishes the
powers of home rule cities and provides in relevant part that municipal corporations:
shall have the power, within or without its territorial limits, to construct, condemn
and purchase, purchase, acquire, lease, add to, maintain, conduct, and operate …
light plants, power plants, …, and any other public utilities or works or ways local
in use and extent, in whole or in part, and everything required therefore, for the
use of said city and county and the inhabitants thereof, and any such systems,
plants, or works or ways, or any contracts in relation or connection with either,
that may exist and which said city and county may desire to purchase, in whole or
in part, the same or any part thereof may be purchased by said city and county
which may enforce such purchase by proceedings at law as in taking land for
public use by right of eminent domain, and shall have the power to issue bonds
upon the vote of the taxpaying electors, at any special or general election, in any
amount necessary to carry out any of said powers or purposes, as may by the
charter be provided.
96. As particularly related to this Decision, Judge LaBuda of the Boulder District
Court, in an order affirming a declaratory judgment decision by the Commission, determined that
the pivotal question was “whether the constitutional rights in that instance (article XX and
article XXV) were in conflict or may coexist.”16 The judge held that the court must interpret the
application of these constitutional rights under the facts of this case. It was clear to the judge that
14 Board of County Commissioners v. Denver Board of Water Commissioners, 718 P.2d 235, 243
(Colo. 1986).
15 See, Article XXV “… nothing herein shall be construed to apply to municipally owned utilities.” See
also, City and County of Denver v. Pub. Utils. Comm’n., 507 P.2d 871, 875 (Colo. 1973).
16 Boulder District Court Decision.
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the Commission does not have jurisdiction to exercise its authority under article XXV when a
municipality operates a utility solely within its boundaries under article XX.17
97. According to Judge LaBuda,
[t]he PUC has the authority to regulate public utilities and the facilities, which
provide service within the City of Boulder as well as unincorporated Boulder. The
City has the right to create a municipal utility to serve its citizens. These facilities
are intimately intertwined. Therefore, it is necessary and appropriate for the PUC
to determine how facilities should be assigned, divided, or jointly used to protect
the system’s effectiveness, reliability, and safety. Such a determination must be
made prior to the City’s condemnation of property for utility municipalization.18
98. Consequently, the Commission’s jurisdiction in this Proceeding is a complex
amalgamation of constitutional provisions, statutes, and Judge LaBuda’s relevant findings. The
outcomes reached by the Commission below carefully thread through those various provisions in
order to provide direction to the parties as to how to proceed with Boulder’s municipalization,
especially as directed to the transfer of Public Service assets to Boulder.
B. Burden of Proof
99. As has been often stated, as the party that seeks Commission approval or
authorization, the applicant bears the burden of proof with respect the relief sought, and the
burden of proof is by a preponderance of the evidence.19 The evidence must be “substantial
evidence,” which the Colorado Supreme Court has defined as “such relevant evidence as a
reasonable person’s mind might accept as adequate to support a conclusion … it must be enough
to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be
17 Boulder District Court Decision. citing, City of Loveland v. Pub. Utils. Comm’n, 580 P.2d 381,
383 (Colo. 1978); City and County. of Denver v. Pub. Utils. Comm’n, 507 P.2d 871, 874-75 (Colo. 1973); Town of
Holyoke v. Smith, 226 P. 158, 161 (Colo. 1924). Notably, the Boulder District Court Decision was issued under the
assumption that at that time, Boulder intended to municipalize beyond its city limits.
18 Boulder District Court Decision. at p.12.
19 § 24-4-105(7), C.R.S., § 13-25-127(1), C.R.S., and Commission Rule of Practice and Procedure 4 Code
of Colorado Regulations 723-1-1500.
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drawn from it is one of fact for the jury.”20 The preponderance standard requires the finder of fact
to determine whether the existence of a contested fact is more probable than its non-existence.21
A party has met this burden of proof when the evidence, on the whole and however slightly, tips
in favor of that party.
100. In this case, Boulder, as the applicant and party seeking Commission approval of
each component of its Third Supplemental Application, has the burden of proof with respect to
the relief sought in its application. Boulder must show, by a preponderance of the evidence that
its application is not contrary to the public interest.
C. Standard of Review
101. As related to the transfer of Public Service assets to Boulder, the applicable
standard of review is set forth in § 40-5-105(1), C.R.S., which states in relevant part that: “[t]he
assets of any public utility … may be sold, assigned, or leased as any other property, but only
upon authorization by the commission and upon such terms and conditions as the commission
may prescribe.” In determining whether a proposed transfer should be granted, the Commission
must evaluate whether the transfer is “not contrary to the public interest.”22 A determination of
whether a proposed transfer is in the public interest must involve a “balancing of the interests of
the shareholders in a reasonable rate of return and the rights of the [remaining Public Service]
ratepayers to receive adequate service at a price which reflects the cost of service.”23
20 City of Boulder v. Pub. Utils. Comm’n., 996 P.2d 1270, 1278 (Colo. 2000) (quoting CF&I Steel, LP v.
Pub. Utils. Comm’n., 949 P.2d 577, 585 (Colo. 1997)).
21 Swain v. Colorado Department of Revenue, 717 P.2d 507 (Colo. App. 1985).
22 Mountain States Tel. & Tel. v. Pub. Utils. Comm’n., 763 P.2d 1020, 1029 (Colo. 1988); Buckingham v.
Pub. Utils. Comm’n., 504 P.2d 677, 679 (Colo. 1972).
23 Mountain States Tel. & Tel. , 763 P.2d at 1029.
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102. Pursuant to 4 Code of Colorado Regulations (CCR) 723-3-3104(b)(IV) of the
Commission’s Rules Regulating Electric Utilities, an applicant for a transfer of utility assets must
demonstrate that the transaction is not contrary to the public interest. The applicant must also
provide the following information for the Commission to consider in balancing the interests of
shareholders and ratepayers: (1) The benefits and detriments to customers of each utility and all
other persons who will be affected by the transaction;24 and (2) A comparison of the kinds of
services rendered before and after the transaction and the costs of those services.25
103. The determination of the transfer standard of review has been addressed recently
in two major asset transfer cases: Decision No. C11-0001, Proceeding No. 10A-350T,26 In the
Matter of the Joint Application of Qwest Communications International, Inc., and CenturyLink,
Inc., for Approval of Indirect Transfer of Control of Qwest Corporation, El Paso County
Telephone Company, Qwest Communications Company, LLC and Qwest LD Corp. The second
asset transfer case was Decision No. R16-0058, Proceeding No. 15A-0667G,27 In the Matter of
the Joint Application of SourceGas Distribution LLC, Rocky Mountain Natural Gas LLC,
SourceGas LLC, SourceGas Holdings LLC, and Black Hills Utility Holdings, Inc. for all
Necessary Authorizations and Approvals for Black Hills Utility Holdings Inc. to Acquire
SourceGas Holdings, LLC.
104. In the Qwest/CenturyLink transfer, the Commission determined that the proper
standard of review was for the Commission to consider whether the merger and any conditions
was “not contrary to the public interest” and would: (1) ensure no net harm to customers; and
24 Rule 4 CCR 723-3-3104(b)(V).
25 Rule 4 CCR 723-3-3104(b)(VI).
26 Decision No. C11-0001 was issued on January 3, 2011.
27 Decision No. R16-0058 was issued on January 22, 2016.
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(2) balance ratepayer and provider interests. In making this finding, the Commission abrogated
the prior “consumer and producer welfare maximization test.”28
105. This standard of review was adopted in the Black Hills/SourceGas merger matter.
There, the ALJ held that in determining whether the transaction at issue was not contrary to the
public interest, the appropriate standard of review would be the standard adopted in Decision
No. C11-0001, where the Commission determined that the “no net harm” and ratepayer/provider
balancing tests were relevant to a determination of whether the merger was “not contrary to the
public interest.” It was reiterated that the Commission was not required to choose a particular test
over the other, and as a result, determined that the consideration should be whether the merger
would ensure: (1) no net harm to customers; and (2) balance ratepayer and provider interests.29
106. We adopt this standard of review test here and will consider whether the proposed
transfer of assets provides no net harm to Public Service ratepayers outside the city limits of
Boulder, while balancing ratepayer and provider interests.
III. ASSETS FOR TRANSFER FROM PUBLIC SERVICE TO BOULDER
107. Boulder seeks to acquire the electric distribution property, plant, and equipment,
wherever located, that are used, in whole or in part, to serve electric customers within the city
limits. Boulder argues that it has identified and described only the assets for transfer that are
necessary for Boulder to provide service after separation. Boulder also states that in its
identification of assets for transfer, the City has excluded any existing assets that are necessary
28 Decision No. C11-0001, Proceeding No. 10A-350T, ¶ 19.
29 Decision No. R16-0058, Proceeding No. 15A-0667G, ¶ 76.
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for Public Service to provide service after separation. Nevertheless, the identified assets are
“subject to verification after preparation of detailed design and specifications.”30
108. Boulder argues that the facilities it has identified in this Proceeding provide the
Commission with sufficient information to determine that they can be transferred to Boulder
without impact to the safety, reliability, and effectiveness of the remaining Public Service
system. Boulder states that the assets it seeks for approval for transfer are identified individually
in Attachment SDC-7 and Highly Confidential Attachment SDC-8 (Hearing Exhibits 105, 105A,
and 105B), as well as in Attachment SDC-18 (Hearing Exhibits 106 and 106A).31 According to
Boulder, there is no objection to the Commission’s authorization of the transfer of the vast
majority of the facilities at issue.
109. Boulder contends that if its list of assets for transfer requires updating, because,
for example, it is incomplete or contains errors, the update could be accomplished in days or, at
most, weeks. In any event, Boulder takes the position that the completion of more detailed
engineering designs and work plans to execute its proposed Separation Plan will not have a
material impact on the assets for transfer.
110. Public Service argues that it is the Separation Plan, not the list of assets for
transfer, which determines whether Public Service (and Boulder) will be able to provide safe,
reliable, and effective service post-separation. Public Service further contends that the list of
assets for transfer provided by Boulder is inaccurate, incomplete, and subject to change.
According to the Company, the list: (1) includes assets that are not owned by Public Service or
are not Public Service distribution system assets; (2) is missing assets Boulder proposes to take
30 Boulder SOP at 20.
31 Id. at 23-24.
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that are located more than 200 feet outside the Boulder city limits; and (3) includes assets that
are located inside the Boulder city limits which Boulder proposes be retained by Public Service.
111. With respect to missing information, Public Service states that an updated list of
assets must include any fee property owned by Public Service and any easements or licenses
Public Service owns which Boulder seeks to acquire in whole or in part. Certain other assets
outside of substations are also missing. However, Public Service states in its Statement of
Position (SOP) that it would not object to a Commission order approving the transfer of these
types of smaller, associated distribution system assets by description, noting that appraisers in
condemnation can capture the value of these assets. Some of the items on the list of assets for
transfer for facilities outside the substations could change depending on whether the Commission
rejects the joint use of poles or particular substation options are pursued. In addition, Public
Service suggests that the updated list of assets for transfer should reflect final substation
configurations.
112. Staff states that the power facilities portion of Boulder’s proposed list of assets for
transfer probably contains sufficient detail for Boulder to proceed to condemnation even with the
uncertainties surrounding the final configuration of the substations that will become part of
Boulder’s new electric utility. Staff suggests that some of this uncertainty could be addressed
with certain allowances for a “true-up.”
113. Staff also acknowledges that the list currently does not describe the real property
rights with sufficient detail to protect both Boulder and Public Service post-separation. Staff
suggests that the Commission should permit Boulder to initiate the condemnation process with
the power facilities portion of the list of assets (again subject to true-up), but require a
Commission-approved list of real property interests before its completion. Staff notes that
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requiring Boulder to provide details concerning the real property rights that it seeks to include on
the list of assets for transfer will require both Boulder to undergo an expensive title search
process and Public Service to cooperate with Boulder to help identify the Boulder-related real
property rights that it possesses but has never recorded.
114. We disagree with Public Service that it is necessary for the Commission to
approve a Separation Plan prior to rendering findings on the assets for transfer. We further find
that it is unnecessary for the Commission to render a decision on Boulder’s proposed Separation
Plan, either in its current form or in a modified form that either satisfies the conditions put
forward by Public Service or results from the follow-on process contemplated by Staff. As
discussed below, we conclude that Public Service will be able to continue to provide safe,
reliable, and effective service post separation in accordance with good utility practice and
industry standards in the design, construction, and operation of its system, provided that Boulder
meets certain conditions in compliance with this Decision and the designation of assets for
transfer is limited, at this time, to the assets outside the substations that presently serve the
Boulder area.
A. Assets Inside the Substations
115. The facilities Boulder seeks to acquire inside the substations include protective
equipment (including relaying, communications, and control equipment); power transformers
and distribution switchgear; and easements for the City equipment and access. (The assets for
transfer proposed by Boulder within the substations are the existing facilities and associated
appurtenances shown in blue and identified as Boulder’s on Highly Confidential Attachments
TAG-6—as modified by Highly Confidential Attachment TAG-27—and TAG-7 through
TAG-11.)
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116. Boulder clarifies that the City is not requesting ownership of any real property
within the substations, only equipment and access easements. Boulder also asserts in its SOP that
none of the substation alternatives, see Section III.A.1 infra, would change the list of equipment
Boulder is requesting for transfer.32
1. Colocation at Substations
117. Boulder argues that it is necessary that Boulder facilities be co-located
with Public Service facilities in the substations that will be used to serve Boulder customers
post-separation. Boulder explains that the very nature of network transmission service means
that transmission and distribution providers will share substations. In other words, every
distribution-only utility in Colorado has distribution facilities co-located in substations with the
transmission facilities of its serving transmission utility. Boulder clarifies that it is not proposing
to interconnect electrical facilities at the distribution level between Public Service and Boulder
inside any of the substations. Boulder further states that the City anticipates paying Public
Service for maintaining the common facilities including the ground grid, fence, and access road.
118. Boulder proposes the following for the six substations
•••• Substation A. Boulder proposes to acquire no existing facilities at
Substation A. Boulder wants to add new facilities at this substation,
specifically a new 50 MVA transformer in the spare bank. Boulder would
require easements to place and access its equipment. Substation A presently
serves about 6,800 customers within Boulder city limits and 173 customers
outside of city limits. Under a scenario where Boulder acquires all
distribution facilities at Substation B, Substation A could serve another
roughly 2,250 Public Service customers post-separation.
Public Service takes the position that Boulder has not established that its
proposal for Substation A will allow Public Service to provide safe, reliable
and effective service to the 2,088 customers moving to Substation A from
Substation B and the existing 173 customers served by Substation A. Public
32 Id. at 28.
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Service also objects to the loss of the spare bank, listing both safety and
reliability issues, and suggests that if Boulder eventually acquires the
facilities in Substation A, the City may need the spare bank post separation,
because Substation B may not be expandable.
Public Service states that it is willing to work with Boulder to try to find a
solution. The Company offers an alternative proposal called “Alt_A,” in
which Boulder takes all of the distribution assets at Substation A and Public
Service builds a new substation to provide its own substation transformer
backup for the 2,088 customers in Left-Hand Canyon. Boulder portrays the
ALT-A proposal as costly and risky due to siting concerns.
•••• Substation B. Boulder proposes to acquire all distribution facilities at this
substation. Boulder would require easements to access its equipment.
Substation B presently serves about 24,600 customers within Boulder city
limits and 3,175 customers outside of city limits.
Public Service states that the transmission facilities at Substation B are
critical components of the Company’s 115 kV transmission loop. Public
Service argues that space is limited within the existing footprint of the
substation and that the Company is therefore concerned about co-locating
with Boulder without some physical separation of the transmission and
distribution facilities. Public Service states that physical separation might be
possible and should be fully evaluated when Boulder submits its request for
load interconnection at Substation B. However, separation could require
expansion of the substation footprint and relocation of certain distribution
facilities into that expanded area so that a fence could be constructed around
each set of facilities.
•••• Substation C. Boulder proposes to acquire no existing facilities at this
substation. However, Boulder proposes to expand the substation to
accommodate new facilities. Specifically, Boulder would have two new
transformers on a radial transmission bus. Boulder would require easements
to place and access its equipment. Substation C presently serves about
4,500 customers within Boulder city limits and 3,600 customers outside of
city limits.
Public Service explains that Boulder’s proposed design for Substation C
would likely run into complications during the transmission load
interconnection process under Public Service’s OATT, due to a radial
transmission line at the site. Under the Company’s alternative proposal, or
Alt_C, Boulder’s new transformers would need to be built in a new
substation adjacent to and contiguous with the current substation.
Boulder agrees to evaluate the Alt_C proposal. However, Boulder proposes
that Public Service continue to own the land and provide an easement for
Boulder’s facilities at Alt_C. Public Service does not agree with Boulder’s
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proposal that Public Service own land on which Boulder’s substation
facilities would be located. Public Service argues that, although Public
Service owns the unfenced land north of the existing substation, the
Company should not have to construct and own an expanded substation.
Public Service states in its SOP: “The next step should be Boulder submitting
a request for interconnection for Alt_C so that a final design for Alt_C can
be determined. This will result in a final design that will then allow for
identification of the respective substation real property rights for Public
Service and Boulder. A substation co-location agreement can also be
negotiated at the same time.”33
•••• Substation D. Boulder proposes to acquire all distribution facilities at this
substation. Boulder does not propose the construction of any new facilities at
this substation. Boulder would require easements to access its equipment.
Substation D presently serves about 14,500 customers within Boulder city
limits and 12 customers outside of the city limits.
Public Service argues that the Company’s transmission facilities at
Substation D cannot be physically separated from the distribution
transformers at the site because the substation is too small. Nevertheless,
Public Service witness Chad Nickell states that the Company is willing,
subject to negotiation of a satisfactory substation sharing agreement, to
co-locate with Boulder in Substation D. Public Service explains that the
transmission facilities in Substation D serve only Substation D (i.e., they are
“in and out” transmission facilities) and, with the appropriate breakers in
place, the impact to Public Service’s transmission facilities of any problems
associated with co-location in Substation D will be limited to Substation D,
which is proposed to serve only Boulder customers after separation.34
•••• Substation E. Boulder proposes to acquire no existing facilities at this
substation. However, Boulder wants to add new facilities at this facility—
specifically a transformer and a “breaker and a half scheme.” Boulder would
require easements to place and access the new equipment. Substation E
presently serves about 1,600 customers within Boulder city limits and 7,500
customers outside of the city limits.
Public Service argues that Boulder’s proposals for Substation E will require
an expansion of the substation beyond the existing fence. Public Service also
argues that Boulder should be required to have a new control building at the
substation. Public Service is concerned that Boulder’s proposal, without
these necessary additions, would limit the Company’s ability to address its
own future transmission and distribution needs. As described below for
33 Public Service SOP at 119-120.
34 Hearing Exhibits 202 and 202A, Nickell Answer at 109-110.
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Substation F, Public Service proposes an alternative for both Substations E
and F called Alt_EF.
•••• Substation F. Boulder proposes to acquire all distribution facilities at this
substation. Boulder also proposes that a ring bus be installed, as well as a
transformer, to serve Boulder customers post-separation. Boulder would
require easements to place and access its equipment. IBM is presently the
only retail electric customer served by Public Service through Substation F.
In its SOP, Tri-State states that it remains concerned that Boulder’s proposals
for Substation F could impact Tri-State’s operations and maintenance
responsibilities at the substation. Tri-State takes wholesale service from
Public Service’s transmission equipment located at Substation F. Tri-State
also owns equipment located in Substation F, including a 230-24.9 kV
transformer, a 230 kV circuit switcher and disconnect switch, and a 24.9 kV
circuit breaker and disconnect switch. Tri-State has an agreement with Public
Service concerning construction, operations, and maintenance activities in
Substation F. Tri-State serves its member system PVREA from Substation F,
and PVREA also owns certain equipment located in Substation F. Tri-State
states that the implementation of Boulder’s proposed changes to Substation F
will require an outage of the Public Service line serving Tri-State, which will
cause PVREA to shift its load to another substation to allow the construction
to occur. Therefore, Tri-State wants to ensure an opportunity to participate in
the applicable utility or regulatory process that decides the reconfiguration of
Substation F.
Public Service describes Boulder’s proposals for Substation F to be
significant, requiring an expansion of the substation footprint. Public Service
explains that during construction: “each of the two transmission lines coming
into the Substation would have to be taken out of service in order to be
connected to the proposed new locations on the ring bus. When a
transmission line is out of service, IBM will only be radially fed. This will
deprive IBM of the redundancy it currently has which is critical to the
reliability it requires. If there is a transmission event on the line providing the
radial feed, then the customer would experience an outage.”35
Public Service proposes an alternative called Alt_EF in which Boulder’s two
new transformers would be located in a single new substation at Boulder’s
wastewater treatment plant which has ready access to Public Service’s
transmission line.
Boulder requests that, in addition to approving its proposals for Substations E
and F, the Commission also approve Substation Alt E_F to allow Public
Service and Boulder to explore the alternative. Boulder states that Substation
Alt_EF may not be able to be sited, but recognizes that if Substation Alt_EF
35 Id. at 122.
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is feasible, the City’s proposed construction at Substations E and F will not
be necessary.
119. Boulder argues that no party objects generally to co-location within the
substations provided there are reasonable access restrictions and, where appropriate, separation
between the Public Service and Boulder facilities. Boulder argues that the Commission needs to
determine that the City’s proposed co-location of facilities within Substations A through F will
not negatively impact safety. Boulder argues that the City’s distribution facilities and Public
Service’s transmission and distribution facilities in the same substation provides no additional
safety, security, or reliability concerns as compared to a substation with Boulder distribution
facilities and just Public Service transmission facilities. Boulder states that all facilities in a
substation must meet National Electrical Safety Code (NESC) requirements, be isolated from the
public, grounded, and secured within a fence or other permanent boundary. Boulder continues
that, if facilities are appropriately designed and maintained, if appropriate safety precautions are
taken, and if the utilities engage in appropriate coordination, there is no reason why two or more
utilities cannot effectively, reliably, and safely co-locate facilities in the same substation.
120. For all substations, Boulder requests that the Commission allow Boulder and
Public Service to resolve the issues associated with co-location and substation configuration—
such as physical separation, equipment access, easements—in Public Service’s OATT processes.
Specifically, Boulder requests that the Commission order Public Service to process the City’s
Network Integration Transmission Service (NITS) application pursuant to the OATT within three
months of Boulder’s filings and to direct Public Service to work with Boulder to create the
detailed drawings and specifications for the substations, as required. (Boulder wants Public
Service to obtain bids from contractors for any new equipment and construction.) Boulder
volunteers to make a compliance filing with the Commission describing the substation
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configurations approved in the NITS process and providing the substation co-location
agreements.36
2. Positions of the Intervening Parties
121. Public Service argues that Boulder’s list of assets for transfer, for assets both
inside and outside the substations, is incomplete. Public Service states, for example, that the
substation general arrangements provided by Boulder include only boxes that indicate where the
City would like easements. Public Service argues that the list includes no legal descriptions and
notes that no terms and conditions for Boulder’s easements have been proposed.
122. Public Service further argues that Boulder acknowledges that the actual location,
design, and configuration of facilities in substations are determined during the transmission load
interconnection process. Public Service concludes that, in order for the Commission to evaluate
whether Public Service will be able to provide safe, reliable and effective service, it is necessary
to know what real property rights Boulder will actually need inside substations, and that cannot
be known until Boulder applies for and completes the transmission load interconnection process.
123. Public Service adds that this information about property rights within the
substations is also necessary for the condemnation case because the real property rights Public
Service will have post separation, and any burdens on Public Service caused by Boulder’s
easements and colocation must be included in determining just compensation.
124. Public Service also notes that the OATT does not specify the requirements for
new facilities, or any particular configuration of facilities, beyond the general “Good Utility
Practice” standard. The Company continues that FERC does not directly review or pre-approve
36 Boulder SOP at 12-13.
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the engineering configuration of Public Service electric transmission facilities prior to
construction or modification.
125. From a legal perspective, Public Service argues that Boulder’s proposed
co-location at substations cannot be ordered by the Commission pursuant to § 40-4-105(1),
C.R.S.
126. In sum, Public Service argues that it is premature to approve the asset list when
“ideas are still being developed” that, with respect to substations, impact system “separation and
reconnection.”37 Public Service argues that load interconnection requests are the first step to
establishing the physical configuration at all substations and are the basis for substation sharing
agreements that must be negotiated so that risks can be evaluated. Public Service argues that
Boulder must complete the transmission load interconnection process and the negotiation of the
substation agreements before a determination can be made regarding the new and any existing
facilities and real property rights Boulder is seeking inside substations.
127. Staff agrees with Public Service that the Commission does not know the location
and configuration of the substations that will comprise the new Boulder electric utility. Staff
similarly argues that neither Public Service nor Boulder can state whether the various substation
proposals will receive approval under the OATT processes.
3. Findings and Conclusions
128. We find that it is premature to authorize the inclusion of facilities inside the
substations on the designated list of assets for transfer. We find that Public Service has provided
compelling evidence that it requires the existing distribution assets within Substations A, B, C,
37 Public Service SOP at 2.
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and E, because they are currently used to provide service to customers that Public Service will
continue to serve upon separation. We recognize, however, that Boulder and Public Service may
reach agreement on a transfer of assets at any or all of these substations. It is further possible that
Public Service could no longer require distribution facilities at a particular substation (e.g.,
Substation B) as a result of facilities’ transfers and system reconfigurations prior to separation.
We thus decline to approve assets for a transfer that may not be required by Boulder in order to
serve its customers, post separation.
129. The record indicates that Boulder can proceed to submit transmission service load
interconnection requests with Public Service’s transmission function for facilities outside of the
substations. See Section III.B.3 infra conditionally approving designation of assets outside
substations for transfer. It is reasonable for Public Service and Boulder to rely upon the
transmission load interconnection request process, and also the NITS process, to attempt to
resolve the required configurations and ownership arrangements inside the substations.
130. The outcomes of these transmission load interconnection requests and NITS
applications also may determine that Boulder will need to construct new substations in order to
begin operations as a municipal utility. Alternatively, Public Service and Boulder may reach
agreement on the sale to Boulder of existing transformers and other distribution equipment
within the substations. The Commission can approve the transfer of facilities inside substations
at a later time, because sales of facilities to Boulder will require Public Service to file
application(s) under § 40-5-105, C.R.S.
131. Although the record indicates that distribution facilities at Substation D may
not be useful to Public Service to serve Public Service customers upon separation, we also find it
premature to include Substation D assets on the list of assets for transfer at this time. Based on
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testimony, it appears likely that Public Service and Boulder will be able to work out
arrangements for Substation D through the transmission load interconnection and NITS
processes.38
132. We find that it also is premature to include Substation F assets on the list of assets
for transfer at this time, because the continued examination of the Alt_EF proposal could alter
Boulder’s transmission load interconnection requests and NITS applications for Substation F and
hence change the configuration and use of that substation.
B. Assets Outside the Substations
133. The facilities that Boulder seeks to acquire outside of the substations include the
following: (a) overhead and underground distribution lines; (b) distribution transformers (pole
and pad mount); (c) overhead and underground secondary and service conductors; (d) fiber optic
and other communications equipment associated with the distribution system; (e) meters and
other equipment; (f) streetlights and traffic lights within the city limits that are owned by Public
Service; and (g) the property interests associated with those assets.
134. The assets for transfer proposed by Boulder outside of the substations are the
components of every distribution feeder system in Attachment TAG-5, Volume I, page 11.39
135. Boulder acknowledges that the data it received from Public Service did not
include complete information regarding customer meters, manholes, services and secondaries,
vaults, and fiber optic and communications facilities. Boulder states that it proposes to acquire
38 Hearing Exhibits 202 and 202A, Nickell Answer at 109-110; Hearing Exhibits 104 and 104A,
Ghidossi Rebuttal at 53.
39 Hearing Exhibit 103.
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these facilities and requests that the Commission approve the transfer of all of these “ancillary
assets and appurtenances” to the extent they are associated with the electric distribution system
serving Boulder customers upon separation.
1. Boulder’s Position
136. Boulder argues that it is undisputed by Public Service that Boulder’s Separation
Plan will, if constructed as proposed, allow Public Service to deliver electricity to its customers
over a system: (1) with the same or better capacity and voltage levels as today; (2) that is
capable of maintaining at least as much capacity and voltage as the system today, even under N-1
conditions; (3) that generally reduces or maintains the number of switching operations needed to
restore service in the event of a feeder trunk outage; (4) that allows Public Service to restore
service just as quickly in the event of a transformer failure wherever it currently exists; and
(5) that complies with the requirements of the NESC. Boulder therefore requests that the
Commission find that the Separation Plan will, if implemented as proposed by the City, result in
a system for Public Service that is as effective, reliable, and safe as the current system.
137. Boulder states that it seeks only assets owned by Public Service. Boulder states
that it is not seeking to acquire assets owned by anyone other than Public Service, such as poles
owned by Qwest Corporation, doing business as CenturyLink QC (CenturyLink).
138. Boulder requests that the Commission approve for transfer both the assets that
exist today and any new assets Public Service adds to the system in Boulder before the Cut-Over
Date that will serve Boulder customers, upon separation.
139. Boulder requests that the Commission require Public Service to provide, within
60 days of a final order to this phase of the proceeding, an update to the GIS model and the
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Synergi model describing any new assets that will, post-separation, serve Boulder customers.40
Boulder further states that it is willing to provide, within 30 days of the Commission’s final order
in this phase of the proceeding, the recorded property interests for property rights associated with
the assets. However, Boulder requests that the Commission require Public Service to, within
30 days of the Commission’s final order in this phase of the proceeding: (1) identify any
unrecorded property interests associated with the facilities that will be owned by Boulder,
post-separation; and (2) identify any instances where Public Service’s gas facilities or
transmission facilities share an easement with its distribution facilities and the portion of any
such easement Public Service needs to retain to provide gas or transmission services.41
140. In addition to the facilities explicitly listed by Boulder, the City seeks to acquire
the specific non-exclusive portions of the real property interest necessary for the facilities that
will be owned by Boulder. Boulder clarifies that it is not requesting the transfer of any real
property interests associated with assets that are necessary for Public Service to serve its gas or
electric customers post-separation.
2. Positions of the Intervening Parties
141. Public Service argues that the real property rights Boulder seeks to acquire
must be identified and any necessary sharing arrangements negotiated where there are gas or
transmission facilities in or on the same property rights. Public Service also asserts that once
condemnation starts, Public Service’s bargaining power to negotiate agreements and real
property rights for itself will be limited because neither the Commission nor Public Service can
call a halt to the condemnation proceedings or alter their course once they have commenced.
40 Boulder SOP at 6-7.
41 Id. at 7.
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142. Staff recommends that the Commission should approve the physical assets portion
of the list of assets for transfer now (and thus, permit the commencement of condemnation
proceedings), as long as the list is still subject to another subsequent approval.
3. Findings and Conclusions
143. We approve the designation of assets for transfer outside of the substations.
However, as discussed below, we place three conditions on Boulder to secure this approval.
144. The record in this Proceeding supports the conclusion that Public Service can
provide safe and reliable service to its customers during separation and after the Cut-Over Date
upon the transfer of assets outside the substations. No party has argued that Public Service’s
existing system is not safe, reliable, and effective. Public Service will retain its feeder lines
serving customers outside of the city limits and, in accordance with our decision above,
the substations that serve those lines. Boulder’s engineers have modeled the existing system
and have shown that it satisfies voltage and capacity requirements. Provided that Public Service
also secures sufficient property rights to operate and maintain its feeders remaining in Boulder,
it is reasonable to conclude that Public Service will have the means to operate its system
post-separation in a manner that is as safe, reliable, and effective as it is pre-separation.
145. Public Service recommends that Boulder move forward with the transmission
load interconnection process.42 That recommendation would support a conclusion that Boulder’s
acquisition of the feeder lines would not result in a less safe, effective, and reliable system for
Public Service after separation. Public Service witness Chad Nickell’s advocacy also focused
almost exclusively on the substation configurations and the associated joint-use of poles for
42 Public Service SOP at 23.
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backups as recommended by Boulder. Public Service primarily suggests that any updated list of
assets for transfer should reflect final substation configurations. However, this Decision results
in no change in substation configurations, at this time.
146. In addition, Mr. Nickell testified that it is not necessary for Public Service to
operate any new substation transformers that Boulder will own in order to serve customers up
until the Cut-Over date. He also explains that there is no need for any of the City’s new
substation facilities to be used by Public Service to provide service and they can be constructed
and ready to be placed in service without Public Service having any responsibilities (other than
temporarily providing load for testing).43 Likewise, he states that it is also not necessary for
Public Service to integrate Boulder’s distribution facilities outside of the substations in order to
serve customers before separation.44 Boulder agrees with Mr. Nickell, since the City takes the
position that operations of the system until the Cut-Over Date will “not require a departure from
the status quo until the systems are separated” and hence will not be the contrary to the public
interest.45
147. Based on the above, the Commission is reasonably assured that Public Service
will be able to provide safe, reliable, and effective service upon Boulder’s acquisition of the
feeders, particularly since decisions on substation configurations would be subject to the
transmission load interconnection process under Public Service’s own OATT. A safe, reliable,
and effective system is also enhanced if the Commission declines to order the joint use of poles,
as addressed below.
43 Hearing Exhibit 203, Nickell Cross Answer at 19.
44 Id. at 21.
45 Boulder SOP, 58.
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148. Accordingly, we hereby find that if Boulder acquires the distribution facilities
outside of the substations, through either a negotiated sale or condemnation, Boulder will have
the technical means (i.e., the facilities and associated property rights) to create a municipal
utility. Boulder will connect its distribution facilities to substations, where Boulder will receive
transmission service from Public Service. As a municipal electric utility, Boulder will have the
right to build new substations in order to serve the distribution facilities on the list of assets for
transfer in the event the City is unable to reach agreement with Public Service on the purchase
and/or reconfiguration of the existing substations through the normal transmission load
interconnection process.
C. Conditions on the Approval of Assets for Transfer
1. Access to Rights of Way and Other Real Property Rights
149. The creation of a municipal utility in Boulder will occur within a well-established
portion of Public Service’s existing service area, wherein the Company has already built a highly
integrated grid. Public Service will require significant facilities to be located within Boulder city
limits post-separation, and Public Service will require access to rights of way and other property
rights within Boulder city limits for those facilities, even though most Boulder City customers
will not be served by Public Service. Public Service also will be required to reconfigure certain
existing facilities and to construct new facilities in order to serve its customers after separation.
For example, new connections between substations within Boulder likely will be necessary for
“backing up” facilities used to serve Public Service customers post separation if Boulder
acquires distribution facilities within certain existing substations.
150. We therefore agree with Public Service that the separation of the systems will
require Public Service to secure permanent, non-exclusive easements and other necessary real
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property rights for the location of its electric facilities within Boulder city limits that are
necessary for Public Service to provide service to its customers after separation. We further agree
with Public Service that non-permanent rights create the risk that Public Service will not be able
to continue to serve its customers post separation, a situation which could cause Public Service to
incur additional costs if Boulder requires Public Service to relocate, remove, or underground
facilities in the future on one or more occasions.46
151. As a condition to the designation of the assets for transfer outside the substations,
we require Boulder to file an agreement reached between Boulder and Public Service that
provides Public Service permanent non-exclusive easements and other necessary real property
rights for the location of its electric facilities within city limits that are necessary for Public
Service to provide service to its customers after separation. Such an agreement is essential to
preserving Public Service’s ability to serve its customers post-separation.
2. Addressing Deficiencies in the List of Identified Assets
152. We are persuaded by Public Service that Boulder’s list of identified assets for
transfer, even for items outside of the substations as provided in the record, is incomplete and
contains errors that must be corrected.
153. As a second condition to the designation of the assets for transfer outside the
substations, we require the filing of a revised list that is accurate and complete. The updated list
shall not include assets that Boulder proposes Public Service should retain; it shall include the
assets Boulder proposes to take that are outside Boulder city limits; and it shall not include
CenturyLink poles or Public Service transmission poles.
46 Public Service SOP at 147-148.
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154. It is not necessary for the updated list to itemize the ancillary assets and
appurtenances outside of the substations. We note that Public Service does not object to a
Commission order approving the transfer of smaller, associated distribution system assets by
description.47 The facilities listed by type may include customer meters, manholes, services and
secondaries, vaults, and fiber optic and communications facilities.
155. The updated list also shall include real property interests associated with the
assets Boulder seeks to acquire (e.g., the property rights outside of the Boulder rights of way).
We find that it is necessary for the Commission and Public Service to understand which property
rights Public Service risks losing through municipalization to be assured that Public Service will
retain its ability to provide safe, reliable, and effective service to its customers after separation.
156. While we decline to order either Public Service or Boulder to contract for the title
work necessary to identify all of Public Service’s real property rights associated with the assets
Boulder seeks to acquire (e.g., fee lands, easements, or licenses), Boulder shall be responsible for
the associated expenses to comply with this condition. Per its offer, Public Service shall work
with Boulder to identify any real property in which gas or transmission facilities are located with
electric facilities.48 Public Service also shall assist Boulder in identifying unrecorded claims to a
property interest associated with the facilities that would be owned by Boulder, post-separation
and the instances where Public Service’s gas facilities or transmission facilities share an
easement with the electric distribution facilities, including the portion of any such easement
Public Service must retain to provide gas or transmission services.
47 Id. at 200.
48 Id. at 194.
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3. Agreement(s) on Boulder’s Reimbursement of Public Service’s Costs
157. As a third condition to the designation of the assets for transfer outside the
substations, we require the filing of an agreement (or multiple agreements) between Boulder and
Public Service that addresses the payment by Boulder of costs incurred by Public Service to
effectuate the separation of the systems. Such an agreement(s) is necessary, since, as discussed
below in Section IV.D.3., we reject Boulder’s proposal that Public Service finance all work for
reimbursement just prior to the Cut-Over Date.
158. The required agreement(s) shall address both the reimbursement of costs incurred
by Public Service associated with Boulder’s compliance with these conditions tied to the
approval of the assets for transfer, pursuant to this Decision, and the costs associated with the
following: (1) the development of scope of work documents and detailed design drawings and
specifications; and (2) new construction and reconfiguration work costs incurred by Public
Service to effectuate the separation of the systems.
159. In recognition that Boulder may change its mind about municipalization after
construction and separation activities have begun, the agreement(s) also should address how
Public Service will recover from Boulder the costs that will be incurred to restore the two
systems to a single electric system, as suggested by Public Service.
160. The agreement(s) should also address the following: (1) respective
responsibilities for the repair and replacement of existing facilities while Public Service is still
providing service to customers within Boulder; (2) how failures and damages will be addressed
after the date value is established in the condemnation case and up to the Cut-Over Date; and
(3) any other final “true up” at the Cut-Over Date not otherwise addressed by the condemnation
court.
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161. We conclude that the Commission’s review and approval of such an agreement(s)
is in the public interest, because it is the most reliable means for the Commission to protect
remaining Public Service ratepayers from paying costs that should be borne by Boulder. We note,
however, that the agreement(s) will not be jurisdictional to the Commission and, as addressed
more fully below, the Commission will not have authority to resolve disputes arising from the
compliance with the agreement(s).
4. Filing Deadline and Review of Compliance Conditions
162. Boulder shall submit no later than 90 days following the issuance of this Decision,
the filings required above for final approval of the designation of assets for transfer outside the
substations. Boulder shall make a single filing satisfying all requirements of the three conditions.
Boulder may file a request for additional time for good cause shown.
163. Any party may file a request for hearing on all or parts of the filings by Boulder
no later than 30 days after the filing is submitted. In the event that a party requests a hearing on
Boulder’s filing, the matter will be referred to an Administrative Law Judge (ALJ) for a
recommended decision on whether Boulder has satisfactorily met the conditions set forth above
and whether the Commission approves the designation of assets for transfer outside the
substations. The Commission will then address the recommended decision under § 40-6-109(2),
C.R.S. In the event no party requests a hearing on Boulder’s filing, the Commission will render a
decision granting final approval of the assets for transfer outside the substations.
164. As explained below, the approval of the assets for transfer by this Decision is
made in accordance with the Boulder District Court Decision. The decision rendered on the
assets for transfer will not be a preliminary approval of the transfer of assets under § 40-5-105,
C.R.S., as contemplated by the advocacy of certain parties. Final approval of the transfer of
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assets under § 40-5-105, C.R.S., will be accomplished, as necessary, in a separate proceeding by
a joint filing of an application for voluntary transfer of assets from Public Service to Boulder.
IV. BOULDER’S PROPOSED ASSOCIATED AUTHORIZATIONS AND RELIEF
A. Joint Use of Poles
1. Boulder’s Proposal
165. Boulder proposes the joint use of existing poles when “above-ground”
infrastructure already exists and another circuit is required for the other utility. Boulder proposes
that Public Service would continue to own any poles jointly used by Boulder and Public Service.
Boulder would pay the joint use fee and all “make-ready costs” required to accommodate
Boulder’s system. Boulder states that, because Public Service had not provided the City with
information on the age and condition of existing infrastructure, Boulder has assumed that all of
the affected poles would be replaced.
166. Boulder argues that the joint use of poles prevents the duplication of facilities in
the same area and that it is common practice between utilities. Boulder also argues that having
two utilities on a pole does not, by itself, negatively affect reliability. To ensure system safety,
Boulder acknowledges that the joint use of poles requires a degree of coordination. Boulder
states that it is willing to abide by all of the restrictions placed by Public Service on other electric
utilities that have joint use arrangements with Public Service, as well as any other reasonable
terms and conditions as may be imposed by the Commission. Boulder states that the two electric
utilities will have to communicate and have a protocol for planned and emergency work on
feeders and equipment on joint use poles.
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167. Boulder argues that the Commission has the authority to require joint use of
regulated facilities. Boulder further argues that Public Service already engages in pole sharing
with other electric utilities as well as cable and phone companies.
168. Boulder estimates that undergrounding all of the joint-use-pole circuits proposed
in the separation plan would cost roughly $30 million, an increase of some 40 percent of the
present cost of the Separation Plan.
2. Public Service’s Position
169. Public Service explains that Boulder proposes 27.5 miles of new construction of
poles for joint use, plus 5.1 miles of existing double-circuit poles that would be split for joint use.
The proposed joint use poles would affect 15 of the 28 feeders that would provide service to
Boulder customers and would affect 8 of the 9 feeders that Public Service would use to provide
service to its customers post-separation.
170. According to Public Service, Boulder is proposing to remove the existing poles
(some of which are owned by CenturyLink) and replace them with new poles capable of holding
circuits for both Boulder and Public Service. The joint use poles within city limits would be used
both to serve Boulder’s circuits and to backup for Public Service, the ties between Substations C
and A. The joint use poles outside of the city limits would be used both to serve Public Service’s
circuits and to provide backup ties between “Boulder’s substations.”
171. Public Service raises numerous safety and reliability issues associated with joint
use poles. Public Service takes the position that there are significantly better designs that would
assure a higher level of the safety and reliability of service. The Company further states the
system would be inherently more risky and more likely to result in a safety incident, which
makes the proposal unacceptable to the Company. Public Service also argues that Boulder’s
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proposal is not fully developed. For example, according to the Company, Boulder cannot
complete the proposed backup feeder on joint use poles for Public Service’s Substation A
transformer without acquiring the right to take CenturyLink poles and convert them to “joint
use” by Boulder and Public Service, with ownership by Public Service.
172. Public Service presented the testimony of Lawrence Gelbien, an independent
expert, who testified that the joint use of poles is not common in the industry because of safety
and reliability reasons and that the NESC establishes minimum requirements, not operational
goals, for safety.49 Mr. Camp, on behalf of Staff, agreed that the NESC provided an engineering
minimum standard, not a safety standard.50
173. From a legal perspective, Public Service argues that Boulder ’s proposed joint use
of poles is outside the scope of the joint use statute, i.e., § 40-4-105(1), C.R.S., in part because
Boulder is not requesting to use existing facilities, but is instead requesting that it be allowed to
use new poles that Public Service would be forced to construct, own, and maintain. Public
Service further argues that Boulder has never cited any legal authority for the Commission to
compel the joint use of poles.
3. Findings and Conclusions
174. We decline to compel Public Service to enter into any “joint use” of pole
arrangement. We conclude that if the joint use of poles is necessary in any particular
circumstance, the arrangement should be worked out with mutual consent by both Boulder and
Public Service.
49 Hearing Transcript, July 31, 2017, at 211-243.
50 Hearing Transcript, August 7, 2017, at 149-153.
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175. Public Service has provided reliable testimony that the joint use of poles will
likely decrease the safety and reliability of its electric distribution system. We therefore find that
the joint use of poles should only be implemented upon mutual agreement by both Boulder and
Public Service. Boulder has failed to persuade us that the “joint use" of poles is either necessary
or warranted at this time.
B. Detailed Design Drawings and Specifications
1. Boulder’s Proposal
176. Boulder requests that the Commission direct Public Service to contract with a
third-party engineering firm acceptable to Boulder to perform engineering work after the
Commission issues a Phase 1 decision that approves both Boulder’s assets for transfer and the
City’s proposed Separation Plan. Boulder envisions that the third-party engineering firm, Public
Service, and Boulder will work together to complete detailed design drawings and specifications
for the facilities located outside substations. The third-party engineering firm also would develop
a cost-estimate and an estimated timeline for the separation of the two systems and would solicit
bids for the construction required under the Separation Plan.
177. In its SOP, Boulder requests that the Commission direct Public Service and the
City to develop a scope of work for the detailed design drawings and specifications within
30 days following the Commission’s final order in this phase of the proceeding. Within
12 months (but with monthly progress reports), Public Service and Boulder then would be
directed by the Commission to engage in the following activities: (1) develop detailed design
drawings and specifications with cost estimates and proposed timelines; (2) negotiate any
required operation agreements to implement emergency backup arrangements and joint use
agreements; and (3) negotiate a cut-over agreement regarding when and how Boulder-owned
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facilities will be physically integrated into the Public Service system and how such facilities will
be maintained before the Cut-Over Date. Following that 12-month process, Boulder states that it
will make a “Phase 2” filing seeking approval of those detailed design drawings and
specifications and agreements.51
178. Also in its SOP, Boulder states the City is willing to enter into a contract with
Public Service that requires the Company and, separately any Public Service contractors to the
extent they are employed for the design work, to invoice Boulder monthly for the “actually- and
prudently-incurred costs.” Boulder further agrees to pay those costs directly to Public Service
contractors and, if applicable, to the Company directly, on a monthly basis. Boulder argues that
there is no need to require Boulder to provide additional payment assurances or security other
than the proposed contract.52
2. Positions of the Intervening Parties
179. Public Service objects to using third-party design engineers to prepare scope of
work documents. Public Service takes the position that those decisions on scope of work, which
should encompass planning for the logistics of cut-over, should be made by the Company and
Boulder and not by third party design engineers, because it is Public Service and Boulder who
have interests at stake in those decisions. Public Service also suggests that once the scope of
work documents are done by the City’s and the Company’s engineers, at least as to Public
Service’s distribution work, it will not be necessary to have engineers prepare the detailed design
drawings, because the drawings can be completed by less expensive designers.
51 Boulder SOP at 14.
52 Id. at 16.
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180. Staff agrees that Public Service should be responsible for the development
of detailed drawings, the specifications bid package, and cost estimates for construction and
reconfiguration of the facilities that will exclusively serve Public Service’s customers after
separation. Likewise, Staff suggests that Boulder should be responsible for the development of
detailed drawings, the specifications bid package, and cost estimates for the construction and
reconfiguration of the facilities that will exclusively serve Boulder’s customers after separation.
3. Findings and Conclusions
181. The parties appear to have reached agreement that the development of a scope of
work is essential to an efficient development of detailed drawings and specifications. While we
concur with Public Service that decisions on scope of work should encompass the planning for
the eventual logistics of cut-over, and while we agree with the parties generally that Boulder and
Public Service will need detailed drawings and specifications to implement the separation of the
two systems, we are not convinced that it is necessary to compel Public Service to contract with
a third-party engineering firm or to direct the Company to take any other specific action in the
furtherance of this work. Moreover, the Commission lacks authority to compel Public Service to
enter into the types of arrangements proposed by Boulder.53 Setting aside such legal deficiencies
of Boulder’s proposal, we are not persuaded that ordering Public Service to contract with a
third-party engineering firm or any other consultant or agency is necessary or warranted. We are
persuaded by Public Service’s testimony, evidence, and experience that it is capable of creating
its own scope of work and detailed design drawings, as necessary, in order to maintain a safe,
reliable, and effective system.
53 See Arkansas Valley Smelting Co. v. Belden Mining Co., 127 U.S. 379, 387 (1888) (“everyone has a right
to select and determine with whom he will contract, and cannot have another person thrust upon him without his
consent.”)
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182. We also decline to order Boulder and Public Service to file the detailed drawings
prior to the Go/No-Go Decision later in this Proceeding or as part of a separate future
proceeding. Review and consideration of approval of detailed specifications and drawings is well
beyond the normal scope of Commission regulation over electric utilities. As stated above, there
is no evidence that Public Service will not be able to continue to provide safe, reliable, and
effective service post separation in accordance with good utility practice and industry standards
in the design, construction, and operation of its system, provided that Boulder meets certain
conditions in compliance with this Decision and provided that the designation of assets for
transfer is limited to the assets outside the substations, as ordered herein.
C. Construction of New Facilities and Reconfiguration of Existing Facilities
1. Boulder’s Proposal
183. Boulder proposes that Public Service, its third-party contractors, and its
consultants, in coordination with the City, construct the facilities necessary to separate the
systems, consistent with the design drawing and specifications jointly prepared by Boulder and
Public Service as approved by the Commission in Phase 2 of this Proceeding. During the
construction phase and up until the Cut-Over Date, Boulder expects that Public Service will test,
energize, and use the newly constructed facilities as the operator of the system as parts of the
construction are completed.
184. Boulder estimates that the cost of construction and reconfiguration work will be
approximately $73 million.54 Public Service calculates the cost of the construction and
reconfiguration work to be approximately $107 to $109 million.55
54 Hearing Exhibit 101, Bailey Direct at 64.
55 Public Service SOP at 40.
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185. Boulder argues that it is prudent that just one utility operate the integrated
facilities until they are separated for safety and reliability reasons. Boulder adds that it “is logical
that Public Service would continue to operate the integrated facilities in parallel with managing
the design, construction, and reconfiguration required under the Separation Plan.”56
186. Boulder argues that requiring Public Service to “take the lead on construction,”
while continuing to own and operate the system within Boulder, ensures continued Commission
jurisdiction “over the facilities” until the Cut-Over Date. In contrast, Boulder asserts that if the
Commission requires Boulder to install and own its own facilities, those facilities would be
outside of the Commission’s jurisdiction, because they are assets of a municipal utility for
serving customers within City Limits. According to Boulder, a requirement that Boulder
complete its own construction work “raises additional concerns and complexities that are
avoided” if Public Service is responsible for construction and owns all the assets until the
Cut-Over Date.57
2. Positions of the Intervening Parties
187. According to Public Service, Boulder is proposing for itself five new distribution
substation transformers and five new feeder lines. Public Service states it is unwilling to design,
procure, construct, test, and commission Boulder’s facilities and cannot legally be ordered by the
Commission to do so. Public Service states that it: “is not in the business of designing, procuring,
constructing, testing or commissioning facilities for other utilities. Boulder can hire its own
56 Boulder SOP at 62.
57 Id. at 63.
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contractors to design and construct its facilities and can obtain (at a cost) from those contractors
the protections for cost overruns and delays it seeks to impose on Public Service.”58
188. Public Service argues that separation will require a large number of different
construction and reconfiguration activities to occur during the same timeframe, necessitating
extensive project management and coordination with Boulder to maintain service to existing
customers during the process. Public Service states that it also will be dependent on Boulder
placing its facilities and being ready to operate them. Public Service states that it will need the
flexibility to schedule work and adjust schedules as necessary to respond to conditions on a daily
basis. Public Service states that is not willing to function as a general contractor for Boulder.
Public Service argues that it needs to be able to make the same decisions on a daily basis that it
would make for any of its public utility projects and that it cannot stop and check or negotiate
with Boulder every step of the way or take the financial risk.
189. Regarding new facilities that Boulder would own post separation, Public Service
argues that there is no reason for Public Service to take on the risk of designing and constructing
new facilities for Boulder. Boulder can hire its own contractors to design and construct its
facilities and can obtain (at a cost) from those contractors the protections for cost overruns and
delays it seeks to impose on Public Service. Public Service also states that there is no reason
why Public Service should or can be required to design, procure, construct, test, and commission
new Boulder only facilities. Public Service argues that the services which Boulder is requesting
Public Service be ordered to provide are not regulated public utility services; rather, they are the
services general construction contractors provide under voluntarily negotiated private contracts.
58 Public Service SOP at 44.
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190. Public Service also takes the position that it is not necessary for Public Service to
operate any new substation transformers that Boulder will own in order to serve customers. The
Company explains that there is no need for any of the City’s new substation facilities to be used
by Public Service to provide service and they can be constructed and ready to be placed in
service without Public Service having any responsibilities (other than temporarily providing load
for testing). Likewise, Public Service states that it is also not necessary for Public Service to
integrate Boulder’s distribution facilities outside of the substations in order to serve customers
before separation.
191. Regarding new facilities that Public Service would own, Public Service states that
it has the right to design and construct the new facilities it will own after separation and that, in
order for Public Service to be able to continue to serve customers during the construction
process, Public Service must be able to decide how separation activities will be undertaken. This
includes moving feeders from an existing substation transformer to a new transformer, severing
feeders and reconnecting them to other feeders (new or existing), moving customers from one
feeder to another, and numerous other activities required to implement the separation.
192. Public Service argues that it cannot be required to use a third party contractor,
selected by competitive bidding and hired to also construct Boulder’s new facilities, to construct
its new facilities and do the separation work. Public Service states, however, that it would be
willing to undertake the construction work for its new facilities and the separation activities
subject to the Commission’s normal prudence review, but not subject to Boulder’s proposed
“guardrails and limitations.”
193. Staff takes the position that Public Service should not perform the services of
an engineering, procurement, and construction firm for Boulder, because it cannot be compelled
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to engage in such unregulated activities on behalf of Boulder. Instead, Public Service
should contract with an electrical distribution construction contractor for construction and
reconfiguration of the facilities that will serve Public Service customers, and Boulder should
engage an electrical distribution construction contractor for the construction and reconfiguration
of facilities that will serve Boulder’s customers, at Boulder’s own expense.
3. Findings and Conclusions
194. We will not hold Public Service responsible for completing all of the construction
and reconfiguration work as proposed by Boulder. We agree with Public Service, Staff, and the
OCC that Boulder’s proposals suffer from jurisdictional infirmities. As we stated above with
respect to the completion of the scope of work documents and detailed design drawing, the
Commission lacks authority to compel Public Service to enter into the types of arrangements
proposed by Boulder.59 We are not persuaded that ordering Public Service to contract with a
particular construction firm or to complete the construction by any specific means is necessary or
warranted. Such a directive is, again, well beyond the normal scope of Commission regulation
over electric utilities.
195. We further agree with Staff that the Commission should hold Boulder responsible
for the construction and reconfiguration of facilities that will serve Boulder’s customers, at
Boulder’s own expense. Likewise, Public Service will be responsible for the construction and
reconfiguration of facilities that will serve Public Service’s customers; however, Public Service’s
construction and reconfiguration work will be completed at Boulder’s expense.
59 See Arkansas Valley Smelting Co., 127 U.S. at 387.
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D. Financing, Proposed Regulatory Asset, and Payment by Boulder
1. Boulder’s Proposal
196. Boulder requests that the Commission order Public Service to track, in a
regulatory asset, the costs related to the following: (1) the development of detailed design
drawings and specifications, a cost estimate and bid package, and a schedule for the construction
and reconfiguration work; (2) the solicitation of bids; and (3) the construction of the facilities,
subject to various conditions.
197. Boulder argues that appropriate categories of costs eligible for inclusion in
the regulatory asset include direct costs of planning, engineering, construction, materials,
transportation, and project management. Examples of costs that would not be appropriate for
inclusion in the regulatory asset are litigation expenses, campaigning, ballot initiatives, and
community outreach. Boulder argues that it should not pay the Company’s litigation costs.
198. Boulder states that the City agrees to pay the costs accounted for in the regulatory
asset, with interest accruing at Public Service’s weighted average cost of capital, when the
systems are fully separated. In the event the Commission rejects the proposed regulatory asset
approach for cost recovery from Boulder, the City argues that the determination of an appropriate
funding mechanism instead could be an issue to be addressed in Phase 2 of this Proceeding.
199. Boulder ties its proposal for financing the separation work to its proposed means
by which the Commission would retain “continued jurisdiction over the detailed design and
construction phases of the Separation Plan.”60 Specifically, Boulder wants Public Service “not
only continue to own, operate, and maintain the electric distribution system in Boulder,”61 but
60 Boulder SOP at 15.
61 Id.
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also to, as the owner of the system, “make certain modifications to its distribution system to
effectuate the Separation Plan.”62 Public Service would pay for this work, tracking its
expenditures in a regulatory asset. Then, at the Cut-Over Date, Boulder would acquire the newly
constructed facilities from Public Service, paying the amount in the regulatory asset for the
Post-Go/No-Go Costs, as well as interest on that amount calculated at Public Service’s weighted
average cost of capital.
200. In its SOP, however, Boulder states that, if the Commission does not “allow
Boulder to defer payment”63 of the construction and reconfiguration costs, Boulder should be
responsible for the acquisition of any equipment that will be owned by Boulder after the
Cut-Over Date and any construction associated with facilities that will be owned by Boulder
after the Cut-Over Date. Boulder states that it will finance those costs as it deems appropriate,
adding that Boulder has the ability to finance the construction necessary under the Separation
Plan, as well as to finance the acquisition of Public Service’s electric distribution assets after the
separation construction. Notably, Boulder states: “at this time, given the substantial uncertainties
regarding the level of the costs and the timeframe in which costs will be incurred, Boulder
cannot and should not be required to commit to the particular manner in which Boulder will
finance those costs, whether it be through general obligation bonds, revenue bond, certificates of
participation, a combination of any of those or otherwise.”64
201. Boulder also states in its SOP that with regard to the Post-Go/No-Go Costs, the
Commission should allow Public Service and Boulder to negotiate whether and the extent to
62 Id. at 15-16.
63 Id. at 17.
64 Id. at 67.
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which payment assurances or security should be required. Boulder proposes to report to the
Commission in Phase 2 what agreements have been reached on that issue.65
202. In the event Boulder does not have sufficient funds to pay Public Service for
all of its incurred costs, Boulder anticipates entering into a contract with the Company that
would establish the obligation to pay the acquisition costs as well as the actually- and
prudently-incurred separation costs on or just before the Cut-Over Date. Such contract would
discuss the method of payment and would be consistent with applicable law.66
2. Positions of the Intervening Parties
203. Public Service argues that it is not legally required to finance any part of the costs
required for Boulder to municipalize. Public Service further argues that there is nothing in
§ 40-5-101, C.R.S., or any other statute which would authorize the Commission to compel Public
Service to finance Boulder’s municipalization efforts. Public Service further argues that the
Commission has no jurisdiction to issue an order requiring Boulder to compensate Public Service
for the costs it incurs to complete the separation and construction work Boulder has proposed in
its Separation Plan. Public Service states that its capital is for the purpose of serving its
customers, not advancing Boulder’s municipalization plans.
204. Public Service states that it cannot be required to incur any costs or expenses until
legally enforceable arrangements are in place that will ensure repayment without financial risk or
the necessity to sue to get paid. According to the Company, any requirements on Public Service
require reimbursement arrangements acceptable to Public Service to be in place to cover all costs
and expenses.
65 Id. at 67-68.
66 Hearing Exhibit 112, Eichem Rebuttal at 20.
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205. Public Service further argues that knowing the terms and conditions of all
agreements necessary between Public Service and Boulder is critical to ensuring that all of the
costs of Boulder’s desire to municipalize are borne by Boulder and not by Public Service and its
remaining customers. Public Service also argues that it legally cannot be ordered by the
Commission to enter into any of the necessary agreements. Nevertheless, Public Service agrees
that the agreements should be subject to Commission approval. Public Service emphasizes that it
is the Company’s position that it is imperative that before Boulder is allowed to commence a
condemnation proceeding and the Commission loses jurisdiction, “the agreements must be
presented to and approved by the Commission before the Commission make its determination
that the separation plan will result in safe, reliable and effective service.”67
206. Public Service also raises a concern that Boulder is not proposing any security for
the funds it wants Public Service to advance, for either the design or the construction and
separation work.
207. Public Service states that it is willing to let Boulder pay for the costs of Public
Service’s new facilities and the separation costs as the work is done, subject to the parties
entering into an acceptable voluntary agreement and the furnishing of adequate security. Public
Service explains that provision would have to be made for the Company’s invoices to be paid
monthly, and the Company must be provided with security for nonpayment. This provision
would enable the Company to restore its system to a single system in the event Boulder changes
its mind about municipalization after construction and separation activities have begun.
Consistent with Public Service’s approach, Boulder would have to pay separately for the costs of
its own new facilities.
67 Public Service SOP, at 141. (Emphasis omitted)
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208. Public Service argues that the creation of a regulatory asset account creates no
obligation on the part of Public Service to advance funds for Boulder ’s municipalization and that
the tracking of costs separately from the Company’s other accounts has nothing to do with who
has to pay those costs and when.
209. Staff states that, with respect to financing Boulder’s municipalization, the main
goal should be to ensure that Public Service’s ratepayers do not finance any aspect of
municipalization, whether it be during the detailed design phase or during construction work
occurring after Boulder’s Go/No Go decision.
210. Staff argues that Boulder should be responsible for funding all costs required to
design, procure, and construct the new municipal electric utility. Public Service should provide
Boulder with a monthly invoice of the municipalization-related expenses that Public Service
incurs (which Boulder pays each month). If Boulder disputes any expenses presented by Public
Service in the monthly invoices, it must submit those items to the Commission for resolution of
the dispute on a quarterly basis. Boulder should fully securitize the estimated cost of construction
and reconfiguration work that Public Service will bear, even with the requirement that Boulder
submit monthly payments.
3. Findings and Conclusions
211. We reject Boulder’s proposal for Public Service to finance the construction and
reconfiguration work. As Ms. Atkeson testified, multi-year fiscal obligations of a governmental
entity, such as Boulder, are not legally binding and enforceable, without a dedicated revenue
stream for repayment.68 There is too little benefit and too much risk to Public Service’s
68 Hearing Transcript, August 3, 2017, at 279-282.
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ratepayers if Public Service were to finance upfront the construction and reconfiguration work
without repayment from Boulder at least five years into the future. Moreover, the record,
including the testimony of Mr. Eichem, the Chief Financial Advisor to Boulder,69 supports a
finding that Boulder has alternative means to finance the construction and reconfiguration work
required for the separation of Public Service’s system.
212. We also agree with Public Service that the Company is not legally required to
finance any part of the costs required for Boulder to municipalize, nor do we possess the
authority to require Public Service to assume such a financial burden.70
213. We agree with Boulder that, because we are not adopting Boulder’s approach for
financing the work, Boulder must be responsible for the acquisition of any equipment that will be
owned by Boulder after the Cut-Over Date and any construction associated with facilities that
will be owned by Boulder after the Cut-Over Date. This approach will narrow the issue of cost
reimbursement to the new construction and reconfiguration work Public Service completes for
providing service to its customers post separation. We further agree with Boulder that the
Commission should allow Public Service and Boulder to negotiate whether, and the extent to
which, payment assurances or security should be required.
214. As explained above, we have required, as a condition for approval of the
designation of assets for transfer outside the substations, the filing of an agreement between
Boulder and Public Service that addresses the payment by Boulder to Public Service for costs
incurred by the Company associated with the development of scope of work documents, detailed
69 Hearing Transcript, August 1, 2017, at 205-212.
70 As Public Service continually points out, it is a regulated public utility and not a lender. It is not legally
required to finance any part of the costs required for Boulder to municipalize. There is nothing in the Public
Utilities Law—including § 40-5-101, C.R.S. (New Construction – Extension)—authorizing the Commission to
require Public Service to finance efforts that will ultimately not benefit Public Service’s ratepayers.
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design drawings, and specifications associated with the new construction and reconfiguration
work costs to effectuate the separation of the systems. This condition on the designation of
assets for transfer is essential to protecting Public Service’s ratepayers from being ultimately
responsible for the costs associated with Boulder’s municipalization efforts.
E. Dispute Resolution
215. Boulder argues that Public Service fundamentally does not want Boulder to
municipalize. Boulder adds that Public Service has little or no incentive to manage costs or keep
construction on schedule. Boulder therefore requests that the Commission establish a process, for
after the Go/No-Decision and prior to the Cut-Over Date, whereby Boulder or Public Service
could raise any issue or dispute that concerns matters within the jurisdiction of the Commission
to the Commission or an ALJ. Boulder recommends that the Commission require parties to raise
disputes only as needed, but no more frequently than quarterly.71
216. Public Service argues that while Boulder has asked the Commission to resolve
disputes up to the Cut-Over Date, the Commission may lack jurisdiction if the Phase 1 decision
gives Boulder transfer approval under § 40-5-105, C.R.S. Public Service adds that once the
Commission has fully exercised its transfer approval authority, it will lose its jurisdiction. Public
Service further argues that Boulder cannot create jurisdiction of the Commission by consent.
217. We cannot be sure at this time what disputes will arise between Boulder and
Public Service that will require resolution. However, it appears that many disputes would involve
contractual claims and disputes over costs and payments. To the extent that Boulder is asking the
Commission to hear and resolve such matters, we note that serving as the authority to resolve
such disputes would most likely require this Commission to step outside its scope of jurisdiction.
71 Boulder SOP at 15.
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As has been clearly stated by the Commission previously, while the Commission enjoys broad
authority over regulated public utilities, that jurisdiction is nevertheless limited. For example,
Administrative Law Judge Mana Jennings-Fader noted that the Commission was aware that its
jurisdiction was limited to the extent that it is characterized as a statutory tribunal:
The Commission is not the functional equivalent of a Colorado Constitution
article III court, which has general jurisdiction over common law claims and
which may award equitable and legal remedies, including monetary damages.
See, e.g. Paine, Webber, Jackson & Curtis, Inc. v. Adams, 718 P.2d 508, 513
(Colo. 1986) (powers of article III courts and of statutory courts). The Colorado
Supreme Court has held consistently that the Commission does not possess
general jurisdiction, that the Commission may not entertain tort and other
common law claims, and that the Commission may not create remedies which are
not authorized by statute. Thus, there is a clear point of demarcation between the
jurisdiction of the Commission and that of the article III courts.72 [Footnote 9
omitted]
Nor does the Commission possess the authority to hear claims of negligence, common law
breach of contract claims, causation, or to provide redress in the form of monetary damages for
claims that are grounded in an alleged violation of Public Utilities Law or a tariff, Commission
decision, or of Commission rules. Instead, the question of damages is an issue to be determined
in a court of competent jurisdiction in a private cause of action.73
218. These findings by the ALJ are buttressed further by case law that holds that
“[a]dministrative agencies cannot exceed the authority conferred upon them by statute.74 Acts of
72 Recommended Decision No. R14-0369, Proceeding No. 13F-0110EG issued April 9, 2014, ¶ 34. Also
citing, IREA v. Colorado Central Power Co., 307 P.2d 1101, 1104-05 (Colo. 1957); PUC v. Manley, 60 P.2d 913
(Colo. 1936); People v. Swena, 296 P. 271, 272 (Colo. 1931) (PUC’s statutory authority not that of an article III
court); and Public Service Company of Colo. V. Van Wyck, 27 P.3d 377, 384-85 (Colo. 2001); People ex rel.
Hubbard v. PUC, 178 P. 6, 14-15 (Colo. 1918) (Commission may not create remedies which are not authorized by
statute).
73 Id.
74 City and County of Denver v. Gibson, 546 P.2d 974, 975-76 (1975) (internal citations omitted)
(overturning Denver Civil Service Commission order to promote a candidate unfairly prejudiced in his examination
by the action of his superior, since the Commission had no statutory authority to issue such an order).
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administrative agencies that exceed the scope of their delegated powers are void, regardless of
the equities involved.75 Therefore, while the Commission’s jurisdiction is broad in the realm of
the Public Utilities Law, it is not boundless, and must be tempered according to its statutory
strictures, or it runs the risk of acting ultra vires.
219. We conclude that it is unnecessary and potentially cumbersome for the
Commission to adopt Boulder’s proposed dispute resolution process. Boulder’s Application
contains several requests that the Commission cannot grant due to a lack of subject matter
jurisdiction. We also agree with the intervening parties who argue that consent of the parties,
express or implied, cannot create subject matter jurisdiction that the Commission is otherwise
lacking.76
V. SERVICE TO IBM
A. IBM’s Position
220. IBM claims that the lack of detail in Boulder’s Application is a sufficient basis to
deny the application in its entirety. IBM offers that if the Commission is not yet prepared to
make that determination, it can and should decide the IBM-specific issue, and deny the
Application as to IBM. According to IBM, Boulder has not proven that it can adequately operate
an electric utility and provide IBM with the reliable service it needs. Thus, the Commission
should not approve any separation plan that allows Boulder to serve IBM.77
221. IBM Witness Leo Ladaga states: “The data center marketplace is very competitive
and near perfect reliability is not an aspiration or goal, it is a non-negotiable commitment.”78
75 Id.
76 Id.
77 IBM SOP at 3.
78 Hearing Exhibit 500, Ladaga Answer at 14.
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Mr. Ladaga states that IBM’s customer contract is for 99.9 plus percent “availability” and that
ensuring reliability is critical to not only IBM’s clients but to the public in general, because of the
nature of IBM’s services on the Boulder campus.79 Mr. Ladaga goes on to explain that the
Boulder campus houses IBM’s Global Technology Services and Resiliency Services, as well as
one of two IBM global command centers, multiple call centers, data archival services, and a
product literature production facility.80 IBM’s more than 10,500 resiliency services clients range
widely in industries that require near-perfect reliability, including 75 percent of the top 35 banks
in the world.81 In the event that IBM fails to meet service levels, it is subject to penalties that can
range to millions of dollars.82
222. IBM witness Brody Wilson testified that Boulder lacks an operations plan and,
even if there are no changes at Substation F, Boulder’s distribution utility will not “see into”
Public Service’s transmission system, and vice versa.83 IBM witness Eugene Shlatz also testified
that the specific shortcomings of Boulder’s proposal include Boulder’s lack of operational
history and experience in operating an electric utility; Boulder’s failure to demonstrate that it will
have adequate resources to restore the system during outages and emergencies; Boulder’s lack of
centralized communications and control facilities; and Boulder’s lack of trained staff.84
223. IBM argues that it is the Commission’s duty to assure that future Boulder
customers will receive safe, adequate, and reliable service, before it permits the separation of
Public Service assets, service territory, and customers for which Boulder seeks Commission
79 Id. at 2. Mr. Ladaga uses the term “availability” throughout his testimony, but IBM uses the word
“reliability” in its SOP.
80 Id. at 6.
81 Id. at 10-11.
82 Id. at 14.
83 Hearing Transcript, August 7, 2017 at 45.
84 Hearing Exhibit 503, Shlatz Answer, Attachment ELS-7.
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approval. According to IBM, under the Boulder District Court Decision and City of Fort Morgan
v. Pub. Utils. Comm’n, 159 P.3d 87 (Colo. 2007), the Commission must exercise this duty now,
and not after Boulder begins operating its municipal utility and IBM loses service or reliability.85
IBM asserts that these cases give the Commission the authority to make a determination that
Boulder is unwilling or unable to provide substantially adequate service to IBM post-separation,
therefore the Commission “must be able to make this same assessment, now, before separation
occurs, particularly given that these customers are currently served by Public Service, an entity
already possessing a CPCN to serve customers in Boulder.”86 IBM further argues that, because
all of Boulder’s future customers are current Public Service customers, the Commission has a
duty to ensure that the creation of a Boulder municipal utility will not harm these customers.
224. IBM believes that the law requires Boulder, at the very least, to make a showing
of operational and financial fitness before the Commission can determine whether Boulder’s
separation plan will result in safe, effective, and reliable service for all current customers of
Public Service, including those who would become future Boulder customers. According to
IBM, Boulder has not provided any evidence that it is capable of providing adequate service to
IBM when Boulder takes title to Public Service’s assets. IBM asserts that Boulder “failed to
address or explain many functions and capabilities that are required to safely and reliability
operate an electric utility distribution system.”87 IBM argues that Boulder has not proven in this
Proceeding that it will be able to protect the system’s effectiveness, reliability, and safety,
and provide adequate service to IBM under its separation plan. IBM cautions the Commission
that Boulder proposes not to provide any meaningful financial or operational detail until after
85 IBM SOP at 27-30.
86 Id. at 2. (Emphasis omitted)
87 Id. at 13.
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the “Go/No-Go” decision, when the Commission will have less authority (if any) over the
municipalization process. IBM therefore asks the Commission to deny Boulder’s application as
to IBM. However, recognizing Boulder’s right to create a municipal utility, IBM proposes a
compromise: if Boulder receives all necessary approvals to proceed with its municipal utility,
IBM proposes that it would not initially be a Boulder customer, or, in other words, the
Commission would deny Boulder’s Application specific to IBM. But the Commission also would
expressly recognize that Boulder would be allowed to subsequently reapply to add IBM to its
service territory, seeking such further separations from the Public Service system as might be
necessary, after Boulder had established a track record for providing safe, effective, and reliable
service. IBM believes that five years of operational detail is sufficient to establish that track
record.
B. Boulder’s Response
225. Boulder states that it is willing to provide IBM with the same level of service and
reliability that IBM receives from Public Service.88 Boulder has also stated that it will consider
not changing Substation F, which would obviate IBM’s concerns about power losses during
construction.89
226. Boulder asserts that it has a constitutional right to serve IBM because IBM is
located entirely within Boulder’s municipal boundaries. According to Boulder, after it begins
operating its municipal utility, the Commission may consider whether it is able to provide
adequate service to any of Boulder’s customers—not before. Boulder notes that in the
Fort Morgan case, the City had the opportunity to provide utility service before the Commission
88 Boulder SOP at 80.
89 Id. at 12.
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determined that the service was inadequate. Boulder further argues that it has demonstrated that
the Separation Plan would result in a reliable, effective, and safe system that would be capable of
serving IBM’s needs, and that the Separation Plan will provide equal or greater capacity and
voltage and increased redundancy and reliability for IBM. Boulder also states that it has
specifically modified the Separation Plan to meet IBM’s needs and address IBM’s concerns.
Finally, according to Boulder, IBM’s request for special treatment is not lawful under the
doctrine of regulated monopoly.
C. Positions of Other Parties
227. According to Public Service, if Boulder is permitted to serve IBM, and the
Commission determines later that Boulder’s service is not adequate for IBM, Public Service
cannot resume provision of service to IBM without building a new substation. Public Service
states that it cannot be a “backstop” for Boulder because it will not have the facilities necessary
to serve customers in Boulder. Public Service argues that “[i]t follows from the rationale and
holding of Fort Morgan that until a municipal utility is able to provide adequate service, the
status quo with the existing utility must be maintained.”90 Accordingly, Public Service opines that
IBM’s compromise proposal—for a five-year waiting period to allow Boulder to develop a track
record of reliable service before Boulder can serve IBM—is reasonable.
228. Staff generally agrees with Boulder that it is premature for the Commission to
make a decision about whether Boulder is willing and able to provide reliable service to IBM
under Fort Morgan. According to Staff, the Commission does not yet possess adequate
information to evaluate concerns related to Boulder’s operational viability. Additionally, Staff
notes that in Fort Morgan, a public utility had applied for a CPCN to serve the customers inside
90 Public Service SOP at 64. (Emphasis in original)
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Fort Morgan’s municipal boundaries, but no utility has sought such permission yet. Staff
concludes that the possibility that Boulder is unable to serve the customers within its planned
service area adequately is too theoretical to review at this time.
229. Staff recommends that the Commission reject IBM’s proposal that would allow
Public Service to continue to serve IBM for five years until Boulder can prove that it can provide
reliable electric service to IBM. Although Staff acknowledges that IBM requires a reliable source
of electricity for its Boulder-based data center operations, Staff notes that there are also other
Boulder-based business customers that cannot afford electric power outages either, such as
hospitals. Staff warns that structuring the municipalization of Boulder’s electric utility so that
IBM receives special treatment poses both legal challenges and questions of fundamental
fairness to other electric customers. However, Staff suggests that the Commission reserve its
ability to consider Boulder’s operational capability before a transfer of assets to Boulder occurs.
D. Legal Analysis
230. A municipal utility cannot be prohibited from serving customers located in its
municipal boundaries, unless it is unwilling or unable to provide substantially adequate service to
the customer or area.91 In this way, municipal utilities are treated the same under the law as
public utilities; they have the same right to continue providing service in their service territories
unless it is shown that they are unwilling or unable to provide substantially adequate service.92 In
91 Fort Morgan v. Pub. Utils. Comm’n, 159 P.3d 87 (Colo. 2007).
92 See, e.g., Durango Transp., Inc. v. Pub. Utils. Comm’n, 122 P.3d 244 (Colo. 2005); RAM Broadcasting
of Colo., Inc. v. Pub. Utils. Comm’n, 702 P.2d 746 (Colo. 1985); Pub. Serv. Co. v. Pub. Utils. Comm’n, 485 P.2d
123 (Colo. 1971); Pub. Serv. Co. v. Pub. Utils. Comm’n, 483 P.2d 1337 (Colo. 1971); Fountain v. Pub. Utils.
Comm’n, 447 P.2d 527 (Colo. 1968). Southeast Colo. Power Ass’n v. Pub. Utils. Comm’n, 428 P.2d 939
(Colo. 1967); Ephraim Freightways, Inc. v. Pub. Utils. Comm’n, 380 P.2d 228 (Colo. 1963) (cases upholding the
principle that a public electric utility in Colorado has the exclusive right to serve all customers inside its certificated
service territory, unless the public utility is unwilling or unable to provide substantially adequate service to the
customer or area).
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all of the cases upholding the principle that a public electric utility in Colorado has the exclusive
right to serve all customers inside its certificated service territory, unless the public utility is
unwilling or unable to provide substantially adequate service to the customer or area, the
applicant seeking to serve a customer or area inside the service territory of a certificated public
utility or of a municipal utility had the burden to prove that the service currently provided was
not substantially adequate.
231. A municipal electric utility, however, is not jurisdictional to the Commission
when it is serving only customers inside its municipal boundaries.93 Unlike a public utility that is
under the Commission’s jurisdiction, a municipal utility does not need to prove that the public
convenience and necessity requires the provision of service before it can serve its customers.94
Under Fort Morgan and the doctrine of regulated monopoly, Boulder has the right to serve IBM
because IBM is located within Boulder’s municipal boundaries.
232. Under Colorado Const. art XXV, the Commission has very limited jurisdiction to
allow a public utility to provide service inside the boundaries of a municipal utility. However,
the Fort Morgan court held that, the Commission has the authority to ensure adequate service to
all utility customers, regardless of whether the customer is being serviced by a regulated public
utility or not.95
233. In Fort Morgan, the Colorado Supreme Court stated that the Colorado
Constitution strikes a balance between local government authority over a municipal utility and
93 Colo. Const. art. V, § 35, and art. XXV; § 40-1-103(1)(b)(II), C.R.S. (exempting municipal utilities from
the definition of public utility); § 40-3-101(1), C.R.S. (exempting municipal utilities from rate regulation by the
Commission).
94 See Fort Morgan, 159 P.3d at 94 (stating that the Commission cannot require a municipal utility to obtain
a CPCN when it is operating within its municipal boundaries).
95 Fort Morgan, 159 P.3d at 95-97.
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the Commission’s authority to ensure adequate electric service across Colorado.96 The court
further held that the Commission has the authority to determine whether a municipal utility is
unwilling or unable to provide substantially adequate service inside its municipal boundaries,
even though the Commission does not have jurisdiction over the services, facilities, and rates of
municipal utilities.97 Fort Morgan’s tariff only allowed for interruptible service but the customers
needed firm service for their food processing businesses.98 The court upheld the Commission’s
decision that interruptible service was inadequate service, and thus allowed a different public
utility to serve those customers.99
234. In contrast to Fort Morgan, where the customer at issue was inside the municipal
boundaries, in Fountain, the municipal utility had a certificated service territory outside of its
municipal boundaries.100 The Commission’s jurisdiction over Fountain’s provision of service in
its certificated service territory was the same as the Commission’s jurisdiction over a public
utility.101 The Fountain Court upheld the Commission’s decision that Fountain had inadequately
served part of its service territory because it could not economically provide service to customers
in the far eastern part of its service territory and prices were so high that it was “tantamount to
denial of service.”102
235. These are the tests the Commission must apply if all or part of a public utility’s
CPCN—or a municipal utility’s right to serve—is to be taken away.
96 Fort Morgan, 159 P.3d at 95-97.
97 Id. at 97.
98 Id.
99 Id.
100 Fountain, 447 P.2d at 528.
101 See Pub. Utils. Comm’n v. Loveland, 289 P. 1090, 1094 (Colo. 1930 (“When the city became a public
utility under the statute, it had no superior right as to territory outside of its municipal boundaries over the rights of
any other public utility, private corporation or otherwise, authorized to furnish service.”).
102 Fountain, 447 P.2d at 530-31.
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E. Findings and Conclusions
236. We conclude that there is insufficient evidence in the record for the Commission
to conclude at this time that Boulder is unwilling or unable to provide substantially adequate
service to IBM. In both Fort Morgan and Fountain, the municipal utilities had the opportunity
to provide service before the Commission determined that the service was inadequate. Boulder
currently is not in a position to serve any customers as a municipal electric utility, so it is
premature for the Commission to enter a finding on whether Boulder is willing and able to
adequately serve IBM under the Fort Morgan case. We find that IBM’s specific operational and
financial concerns can be addressed as Boulder and Public Service develop the plans for
substation configurations and as Boulder continues to create the operations plan for its municipal
utility.
237. Further, because we have elected not to approve Boulder’s proposed Separation
Plan, it is not necessary to find that the Separation Plan will result in substantially adequate
service to IBM. However, IBM is not precluded from bringing additional evidence to the
Commission at a later time—based on Boulder’s future operations plan—that it believes
demonstrates that Boulder is unable to provide adequate service to IBM.
238. Boulder and Public Service (and IBM and/or Tri-State, if necessary) have shared
interests in working cooperatively towards resolving the detailed design, siting, and construction
issues associated with providing electric service to IBM under the new Boulder municipal utility.
A mutual resolution should minimize construction-related disruptions to IBM’s electric service.
239. While we agree with Staff regarding the need for fairness in the treatment of all
customers, IBM has a unique service quality arrangement negotiated with Public Service.
Furthermore, IBM has put forth a substantial effort in this Proceeding to articulate the magnitude
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and severity of its concerns regarding the continued delivery of safe, reliable, and effective
service during and after the proposed municipalization of electric service. The Commission
noted, during deliberations, that while Boulder has a responsibility to provide safe, reliable, and
effective service to its residential customers, Boulder also has large customers that are economic
drivers for the state as whole. Thus, the Commission calls upon Boulder to pay particular heed
to IBM’s concerns and make all reasonable efforts to engage, not only IBM, but also the other
customers that Boulder intends to serve.
VI. DIRECTIVES TO PUBLIC SERVICE
A. Good Faith Cooperation with Boulder
240. Public Service witness David Eves states that Public Service acknowledges that
Boulder has a right under the Colorado Constitution, subject to certain property owner
protections and conditions, to acquire Public Service’s facilities in order to form a municipal
utility. Mr. Eves also states that Public Service would prefer that Boulder ultimately opt not to
pursue the path of forming a municipal utility. However, given the possibility that Boulder may
create a municipal electric utility, Mr. Eves states that Public Service’s “sole interest in this case
is that the proper separation be planned and implemented correctly to ensure the safety,
reliability and effectiveness of [Public Service’s] system and in a manner that gives the
Commission proper oversight consistent with the Colorado Public Utilities Law.”103
241. According to Mr. Eves, the end state of the municipalization process: “should be a
reconfigured system where, on the date Boulder takes possession, [Public Service] can open and
close breakers and Boulder will have a fully operational distribution system. This process will
require work on our system both inside and outside of Boulder to preserve [Public Service’s]
103 Hearing Exhibit 200, Eves Answer at 8.
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present level of reliability for our remaining customers, but I believe Boulder customers will
benefit as well.”104
242. At hearing, Mr. Eves explained that Public Service has submitted significant
amounts of testimony, with suggestions, information, and alternatives to Boulder’s proposal,
such that the Company could “continue to work on those things to help Boulder find solutions
and negotiate with us to create the best plan.”105 He also committed Public Service to working in
good faith with Boulder to address real property descriptions that Public Service argues are
necessary to include in the identification of the assets for transfer.106
243. Mr. Eves also testified that Boulder and Public Service have reached a point
where, regardless of whether the Commission denies the Application, the issues raised in this
Proceeding could be resolved through “good fair work” and negotiations.107 Mr. Eves stated that
he is prepared to commit Public Service to work with Boulder now that it is engaged in
advancing a plan that is “closer to being doable and right” and that if municipalization is going to
happen, Public Service “want[s] to make sure that it is properly done, our customers are not
affected and that we get compensated for it.”108
244. We intend to hold Public Service to the commitments made by Mr. Eves. We
expect Public Service to work in good faith with Boulder to assist the City in being able to
satisfy the three conditions for Boulder to secure final approval of the designation of assets for
transfer outside of the substations. We further expect Public Service to work with Boulder
104 Id. at 9.
105 Hearing Transcript, August 2, 2017 at 53.
106 Id. at 117.
107 Id. at. 33-34.
108 Id. at. 125.
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pursuant to the transmission load interconnection process under the Company’s OATT to resolve
the issues surrounding the six substations. Public Service’s cooperation is critical to avoiding
unnecessary delay in Boulder’s attempts to comply with the conditions set forth in this Decision.
Delay will not advance Public Service’s ability to provide safe and reliable service to its
customers post-separation.
B. Obligation to Serve Until Cut-Over
245. Boulder requests that the Commission order Public Service to continue to own,
possess, operate, maintain, and improve the electric distribution system in Boulder until the
Cut-Over Date.109
246. At hearing, Mr. Eves confirmed that Public Service will continue to operate its
system to serve customers in Boulder during the construction and separation time period and
agreed that Public Service will endeavor to provide the same level of safe, effective, and reliable
service that it does today during the construction and separation.110
247. We find that it is undisputed among the parties that Public Service is obligated to
serve customers in Boulder until the Cut-Over Date. Boulder’s request is hereby granted.
C. Cost Accounting
248. The OCC contends that non-Boulder Public Service ratepayers should suffer no
harm as to costs, or, in other words, no rate increases directly or indirectly from Boulder’s
municipalization efforts. Along these lines, the OCC takes the position that litigation costs
incurred by Public Service with regard to Boulder’s municipalization efforts should be a cost
paid by Boulder and not passed on to ratepayers.
109 Application, 13.
110 Hearing Transcript, August 2, 2017 at 61-62.
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249. CU-Boulder requests that the Commission order that Boulder only pay prudently-
and actually-incurred costs of construction and separation, which order should be implemented
through a transparent, fair, and periodic Commission-administered process which is largely
consistent with Boulder’s positions in this case.
250. Climax argues that the Commission should prevent Public Service’s customers
outside Boulder City Limits from bearing any costs resulting from the City’s efforts to create a
municipal electric utility, whether those costs have already been incurred or will be incurred
before or after the City’s Go/No-Go decision. Climax states that none of the costs incurred by
the City or the Company as a result of the City’s efforts to municipalize, whether the City is
successful or not, have been or will be caused by the “remaining customers.” Climax states that
rates recovering costs that are not caused by, for the benefit of, or necessary to provide adequate,
reliable, and effective service to the remaining customers are not just and reasonable.
251. Evraz similarly requests that the Commission issue an order precluding Public
Service from passing any costs of municipalization through to ratepayers remaining on the
Company system. Evraz is concerned that the protracted dispute between Public Service and
Boulder will lead to increased rates for Public Service customers. Evraz thus requests that the
Commission, as part of its order in this Proceeding, require that Public Service pass no costs
related to municipalization on to its customers.
252. Staff states that the main goal for the Commission should be to ensure that Public
Service’s ratepayers do not finance any aspect of Boulder’s municipalization, whether during the
detailed design phase or during the construction work after Boulder’s Go/No Go decision.
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253. At hearing, Public Service witness Eves suggested that an order from the
Commission was necessary for the Company to begin keeping track of its direct and indirect
costs associated with Boulder’s municipalization efforts.111
254. We direct Public Service to account for the costs it incurs associated with
Boulder’s municipalization efforts for purpose of review in future rate cases by the Commission,
Staff, and all other parties to those proceedings. The record in this Proceeding is devoid of any
information regarding the amount of costs Public Service has incurred to date, either in total or
by cost category. Decisions on what costs may or may not be included in Public Service’s
revenue requirements for establishing rates shall be made in the Company’s future rate
proceedings. Any decision on the allocation of costs and benefits between Public Service’s
shareholders and customers must be deferred until after Boulder and Public Service file for final
approval of the transfer of assets pursuant to § 40-5-105, C.R.S.
VII. PROCEEDINGS BEFORE THE COMMISSION
255. Boulder’s proposed phasing of this Proceeding is denied. This Proceeding will
continue in order to address Boulder’s and Public Service’s compliance with the conditions and
directives rendered in this Decision.
256. In the event that construction is required at a substation to be owned by Public
Service, Public Service shall file for a Commission determination of whether the proposal is in
the ordinary course or instead requires a CPCN application pursuant to Rule 4 CCR 723-3-3206.
111 Hearing Transcript, August 2, 2017 at 153.
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257. As explained above, it also may be necessary for Public Service and Boulder to
file jointly for approval of a voluntary transfer of assets inside substations under § 40-5-105,
C.R.S.
258. Boulder and Public Service shall file, pursuant to § 40-5-105, C.R.S., an
application in a separate proceeding for the final Commission approval of the transfer of assets
prior to the Cut-Over date. This Decision shall not be used by either party as a preliminary
approval of the transfer of assets. Nothing in this Decision shall be used by either party in any
condemnation proceeding as a finding or opinion of the Commission as to whether or not there
are damages to any remainder interest of Public Service in the assets.
VIII. ORDER
A. It is Ordered That:
1. The Third Supplemental Verified Application (Application) filed by the City of
Boulder (Boulder) on May 12, 2017 is granted, in part and with conditions, and denied, in part,
consistent with the discussion above.
2. The designation of assets for transfer outside of the six substations at issue in this
Proceeding is approved, subject to Boulder satisfying three conditions. To secure final approval
of the designation of these assets for transfer, Boulder shall: (1) file an agreement(s) reached
between Boulder and Public Service Company of Colorado (Public Service) that provides Public
Service permanent non-exclusive easements and other necessary real property rights for the
location of Public Service’s electric facilities within Boulder’s city limits that are necessary for
Public Service to provide service to its customers after separation; (2) correct the errors and
omissions from the list of assets for transfer outside of the substations and resubmit the revised
list of assets for final approval; and (3) file an agreement (or multiple agreements) between
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Boulder and Public Service that address(es) the payment by Boulder to Public Service of the
costs incurred by Public Service to effectuate the separation of the systems. The filing of the
agreements and revised list of assets for transfer shall be made no later than 90 days from the
effective date of this Decision. Boulder may file a request for additional time for good cause
shown.
3. Any party in this Proceeding may file a request for hearing on all or parts of the
filings submitted by Boulder in accordance with this Decision no later than 30 days after
Boulder’s filing being submitted. In the event that a party requests a hearing on Boulder’s filing,
the matter will be referred to an Administrative Law Judge for a recommended decision on
whether Boulder has satisfactorily met the conditions and whether the Commission approves the
assets for transfer outside the substations.
4. Consistent with the discussion above, Public Service is directed to assist Boulder
in good faith in Boulder’s efforts to satisfy the conditions set forth in this Decision for securing
the final approval of the designation of assets for transfer outside of the substations.
5. Public Service shall work with Boulder in good faith pursuant to the transmission
load interconnection process under its Open Access Transmission Tariff, consistent with the
discussion above.
6. Public Service shall account for the costs it incurs associated with Boulder’s
municipalization efforts for purpose of review in future rate cases, consistent with the discussion
above.
7. Boulder and Public Service shall file, pursuant to § 40-5-105, C.R.S., an
application in a separate proceeding for the final Commission approval of the transfer of assets
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prior to Boulder beginning operations as a municipal electric utility, consistent with the
discussion above.
8. All requests made by Boulder or any intervening party in this Proceeding that is
not addressed by this Decision are denied.
9. The 20-day time period provided pursuant to § 40-6-114, C.R.S., to file an
application for rehearing, reargument, or reconsideration shall begin on the first day after the
effective date of this Decision.
10. This Decision is effective upon its Mailed Date.
B. ADOPTED IN COMMISSIONERS’ DELIBERATIONS MEETING
August 30, 2017.
(S E A L)
ATTEST: A TRUE COPY
Doug Dean,
Director
THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF COLORADO
JEFFREY P. ACKERMANN
________________________________
FRANCES A. KONCILJA
________________________________
WENDY M. MOSER
________________________________
Commissioners
Decision No. C19-0874
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO
PROCEEDING NO. 15A-0589E
IN THE MATTER OF THE APPLICATION OF THE CITY OF BOULDER, COLORADO FOR
APPROVAL OF THE PROPOSED TRANSFER OF ASSETS FROM PUBLIC SERVICE
COMPANY OF COLORADO TO THE CITY AND ASSOCIATED AUTHORIZATIONS AND
RELIEF.
DECISION: (1) FINDING CONDITIONS MET
OF DECISION NO. C17-0750; (2) APPROVING
DESIGNATION OF ASSETS OUTSIDE SUBSTATIONS
FOR TRANSFER; (3) DENYING OUTSTANDING
FILINGS AS MOOT; AND (4) CLOSING PROCEEDING
Mailed Date: October 28, 2019
Adopted Date: October 10, 2019
TABLE OF CONTENTS
I.BY THE COMMISSION .........................................................................................................2
A.Statement ...........................................................................................................................2
B.Background ........................................................................................................................3
C.Discussion and Findings ..................................................................................................14
1. Condition 1 of Decision No. C17-0750 ...................................................................14
a.Exhibit 1, Permanent Easement Agreement......................................................15
2. Condition 2 of Decision No. C17-0750 ...................................................................16
b. Exhibit 5A, List of Assets .................................................................................16
c.Exhibit 5B, Real Property Interests ...................................................................18
d.Exhibit 6, Easement Sharing Agreement ..........................................................19
3. Condition 3 of Decision No. C17-0750 ...................................................................22
e.Exhibit 2, Interim Cost Agreement; Exhibit 4, Cost Agreement ......................23
D.Conclusion .......................................................................................................................24
II.ORDER ...................................................................................................................................25
A.The Commission Orders That: ........................................................................................25 Colorado PUC E-Filings SystemEXHIBIT 6
2019 FINAL PUC DECISION
DATE FILED: December 19, 2019 4:51 PM
FILING ID: E6CAC62995A84
CASE NUMBER: 2019CV31226
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Decision No. C19-0874 PROCEEDING NO. 15A-0589E
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B. ADOPTED IN COMMISSIONERS’ DELIBERATIONS MEETING October 10, 2019.28
I. BY THE COMMISSION
A. Statement
1. By this Decision, we find the City of Boulder (Boulder) has met the conditions
that the Commission established in Decision No. C17-0750, issued September 14, 2017, in this
Proceeding No. 15A-0589E, to secure final approval of the designation of assets outside
substations for potential transfer from Public Service Company of Colorado (Public Service) to
Boulder.
2. Through this Decision, we therefore approve the designation of assets outside
substations for transfer from Public Service to Boulder identified in: (1) Highly Confidential
Exhibit 5A, filed by Boulder on August 30, 2019, corrected by Public Service on September 3,
2019, and as modified in Attachment 1 to Public Service’s September 9, 2019, Response to
Boulder’s August 30, 2019, Notice of Filing of Agreements and Corrected List of Assets; and
(2) Confidential Exhibit 5B, filed by Boulder on August 30, 2019. We approve the designation of
these assets for transfer to the extent the assets are located outside the substations that Public
Service presently uses to serve its retail electric customers in the Boulder area and are the
property of Public Service.
3. As we found in Decision No. C19-0805-I, issued September 30, 2019, in this
Proceeding, the Commission has already considered and denied a request from Boulder to
approve the designation of assets inside substations for potential transfer from Public Service to
Boulder through condemnation. We affirmed that Decision No. C17-0750 provides that if
Boulder and Public Service reach agreement on a transfer to Boulder of assets inside substations,
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Decision No. C19-0874 PROCEEDING NO. 15A-0589E
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they will need to file jointly for approval of the transfer of those assets under § 40-5-105, C.R.S.,
prior to the time when Boulder begins to operate its municipal electric utility (i.e., the Cut-Over
Date).1 We declared that, absent such agreement, Boulder would need to, and would have the
right to, build new substations to serve its municipal customers.
4. Having thus found the conditions of Decision No. C17-0750 satisfied and
providing in this Decision our final approval of the designation of assets outside substations for
transfer, we close this Proceeding No. 15A-0589E. We deny as moot all outstanding filings. As
we instructed in Decision No. C17-0750, prior to the Cut-Over Date Boulder and Public Service
shall file pursuant to § 40-5-105, C.R.S., a final application in a separate proceeding for
Commission approval of the transfer of Public Service’s assets to Boulder.
B. Background
5. On September 14, 2017, the Commission issued Decision No. C17-0750, granting
in part and with conditions, and denying in part, the Third Supplemental Verified Application,
filed by Boulder on May 12, 2017. Through this application, Boulder sought approval of a
proposed separation of Public Service’s existing electric distribution system to permit Boulder to
provide electric service to its customers within its city limits with Boulder-owned facilities, and
Public Service to provide electric service to customers in unincorporated Boulder County.
Boulder sought approval of the transfer of Public Service assets inside the substations Public
Service currently uses to provide retail electric service to customers within Boulder (identified as
Substations A, B, C, D, E, and F) and outside those substations. The Commission conditionally
approved the designation of assets outside substations for transfer; we denied the request to
1 § 40-5-105(1), C.R.S., provides: “The assets of any public utility … may be sold, assigned, or leased as
any other property, but only upon authorization by the commission and upon such terms and conditions as the
commission may prescribe[.]”
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approve the designation of assets inside substations for transfer. We found our decision satisfied
the requirements of Boulder District Court Judge LaBuda’s 2015 Order2 by determining, to the
extent necessary as of the date of our decision, how Public Service’s facilities should be
assigned, divided, or jointly used to protect the effectiveness, reliability, and safety of Public
Service’s electric distribution system.
6. In Decision No. C17-0750, we assigned three conditions to our final designation
of assets outside substations for potential transfer from Public Service to Boulder. To secure final
approval of the designation of these assets for transfer, we required that Boulder:3
(1) file an agreement reached between Boulder and Public Service that
provides Public Service permanent non-exclusive easements and other
necessary real property rights for the location of its electric facilities
within Boulder’s city limits that are necessary for Public Service to
provide service to its customers after separation;
(2) correct the errors and omissions from the list of assets for transfer outside
of the substations and resubmit the revised list of assets for final approval;
and
(3) file an agreement between Boulder and Public Service that addresses the
payment by Boulder to Public Service of the costs incurred by Public
Service to effectuate the separation of the systems.
We ordered these filings be made within 90 days of Decision No. C17-0750 and that Public
Service assist, in good faith, Boulder’s efforts to satisfy these conditions. Boulder and Public
Service later requested several extensions to make these filings. After granting extensions and
receiving other pleadings from the parties, we convened a status conference on June 29, 2018, to
hear from representatives of Boulder and Public Service on the status of their ongoing
negotiations and resolution of the outstanding issues.
2 Order Re: Judicial Review of the Colorado Public Utilities Commission Decisions, City of Boulder v.
Pub. Utils. Comm’n, Case No. 14CV30047 (Boulder District Court, January 14, 2015).
3 See Decision No. C17-0750 at Ordering ¶ 2 (setting forth conditions for designation of assets for transfer).
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7. On October 26, 2018, Boulder and Public Service filed a Joint Notice of Filing of
Permanent Easement Agreement, Cost Agreements, and Corrected List of Assets Outside
Substations and Boulder’s Report Regarding the Commencement of Condemnation Proceedings.
This included four exhibits: Exhibit 1, Permanent Easement Agreement; Exhibit 2, Interim Cost
Agreement; Exhibit 4, Cost Agreement; and Exhibit 5A, Asset List with Corrections, and Exhibit
5B, Real Property Interests. Boulder and Public Service stated they were also negotiating an
agreement to govern how to operate in a shared easement that includes electric distribution
facilities acquired by Boulder and facilities retained by Public Service to provide gas distribution
and gas or electric transmission service. Boulder and Public Service requested that we extend the
date to file this agreement and delay the 30-day period for parties to request a hearing until this
additional agreement was filed.
8. On November 16, 2018, Boulder filed a Motion for Final Approval of Designation
of Assets Outside Substations for Transfer. Boulder stated the motion was unopposed by Public
Service. Boulder requested the Commission issue an order finally approving the designation of
assets outside substations for transfer.
9. Also on November 16, 2018, Boulder and Public Service filed a Motion for
Modification of Certain Provisions of Paragraphs 155 and 156 of Decision No. C17-0750, with
Exhibit 6, Easement Sharing Agreement. Boulder and Public Service explained that identifying
all the real property interests associated with the assets Boulder seeks to acquire, and all the real
property interests in which gas or transmission facilities are located with electric facilities, had
proven more time consuming than anticipated. As a result, they requested the Commission accept
the Easement Sharing Agreement in lieu of completing, in this Proceeding, these requirements
from Decision No. C17-0750. Boulder and Public Service stated this agreement will protect
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Public Service’s ability to provide gas distribution and gas or electric transmission service, and
not shift costs to Public Service’s customers, while also allowing Boulder to utilize the
easements and other property interests associated with the electric distribution facilities that
Boulder acquires.4
10. On December 17, 2018, IBM, Corp. (IBM), Staff of the Public Utilities
Commission (Staff), and Tri-State Generation and Transmission Association, Inc. (Tri-State) filed
responses to these exhibits and requested a status conference and hearing. IBM urged a hearing
was needed to determine if Boulder planned to take any assets that directly impact IBM’s facility.
Staff urged the Commission to hold a status conference to discuss Ordinance 8302, recently
passed by the Boulder City Council, and the transfer of substation assets. Tri-State responded it
did not know whether Boulder’s planned acquisition of substation assets would adversely affect
its equipment. Tri-State requested the Commission hold a status conference to establish
procedures to clarify the status of these substation assets.
11. On January 4, 2019, Boulder filed a Response to Requests for Hearing and Status
Conference. Boulder clarified the assets designated for transfer outside substations included all
of Public Service’s facilities and property rights used to serve IBM. Boulder stated it was open to
a status conference to discuss the issues raised in the parties’ responses to its filings, but opposed
a hearing as inconsistent with the process established in Decision No. C17-0750. Boulder
requested the Commission find no further proceedings be required other than a separate
application for transfer of the Public Service assets prior to the Cut-Over Date.
4 Boulder and Public Service Motion for Modification of Certain Provisions of Paragraphs 155 and 156 of
Decision No. C17-0750 at ¶¶ 11-12 (November 16, 2018).
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12. On January 10, 2019, Boulder filed a Notice of Filing of Affidavits in Response to
IBM’s Hearing Request. Boulder provided affidavits by two engineering witnesses attesting the
property interests requested for transfer relating to facilities serving IBM were access and
equipment easements within Public Service’s existing easements within Substation F.
13. On January 15, 2019, a pre-hearing conference was held by an Administrative
Law Judge (ALJ), pursuant to ¶ 163 of Decision No. C17-0750. Through Decision
No. R19-0075-I, issued January 18, 2019, the ALJ scheduled an evidentiary hearing for
February 25 and 26, 2019.
14. On January 18, 2019, Public Service filed a Notice of Withdrawal from the Joint
Motion for Modification of Commission Decision C17-0750; Notice of the Company’s
Objections to the List of Assets; Or in the Alternative, Motion for Leave to File Out of Time
Objections to the Asset List and Request for Hearing. Public Service contended the list of assets
comprising Exhibits 5A and 5B was not yet accurate and complete.
15. 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 (Petition for Declaratory Orders). Public Service
requested the Commission issue an order stating Boulder may not proceed to condemn assets
inside substations unless and until Boulder and Public Service reach an agreement on the transfer
and an application is filed with, and granted by, the Commission.
16. IBM, Staff, and Tri-State filed responses supporting the Commission accepting
and ruling on the Petition for Declaratory Orders. On January 29, 2019, IBM filed a Notice of
Support and Joinder of Relief Sought in Petition for Declaratory Order. IBM supported the
Petition for Declaratory Orders and the contention that Decision No. C17-0750 ordered Public
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Service to retain the substation assets unless and until it and Boulder reach an agreement. On
January 29, 2019, Staff filed a Notice Concerning Public Service Company’s Petition for
Declaratory Order. Staff agreed Boulder and Public Service differently interpreted our decision
and a declaratory order was appropriate. On January 30, 2019, Tri-State filed a Notice Regarding
Public Service Company’s Petition for Declaratory Orders. Tri-State supported the Petition for
Declaratory Orders as it relates to the process for identifying and acquiring substation assets.
17. On February 1, 2019, Staff filed a Response to Public Service’s January 18, 2019,
Notices and Alternative Motion and Request for Hearing. Staff urged the Commission to allow
Public Service to present at the upcoming hearing before the ALJ, the evidence it had of any
incompleteness or inaccuracy of the list of assets.
18. On February 1, 2019, Boulder and Public Service filed with the Commission a
Joint Unopposed Motion to Stay Commission Action on Pending Matters for Two Weeks.
Boulder and Public Service stated this would allow them to focus on negotiating the remaining
disputed issues. They filed concurrently with the ALJ, a Joint Unopposed Motion to Modify
Interim Decision R19-0075-I and to Toll Proceeding for Two Weeks, requesting no motions,
responses, or discovery proceed for the hearing while the Proceeding was stayed.
19. On February 4, 2019, by Decision No. R19-0136-I, the ALJ granted the request to
toll the procedural schedule in the matters before the ALJ and extend the hearing dates.
20. On February 8, 2019, by Decision No. C19-0151-I, the Commission stayed the
Proceeding until further order. In addition, the Commission directed Boulder to file any court
filings or documents exchanged with Public Service regarding commencement of condemnation
proceedings. The Commission also directed Boulder to confer with the parties and file a proposal
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for resolving the outstanding issues and pleadings in the Proceeding. The Commission also
rescinded its referral of matters to the ALJ.
21. On February 14, 2019, Boulder filed a Notice of Filing Documents Pursuant to
Commission Decision No. C19-0151-I. Boulder stated it had not yet filed a petition in
condemnation. Boulder provided a copy of Ordinance 8302, which it explained authorized
acquisition of assets owned by Public Service necessary for the Boulder electric system and
allowed use of eminent domain if good faith negotiations failed. Boulder also provided a Notice
of Intent to Acquire that it sent to Public Service on January 31, 2019.
22. On June 12, 2019, Boulder filed a Combined Response in Opposition to:
(1) Petition for Declaratory Orders; and (2) Notice of PSCo’s Withdrawal from the Joint Motion
for Modification; Objections to the List of Assets; or In the Alternative, Motion for Leave to File
Out of Time Objections; and Request for Oral Argument. Boulder challenged Public Service’s
Petition for Declaratory Orders first as an untimely application for rehearing, reargument, or
reconsideration under § 40-6-114, C.R.S. Substantively, Boulder argued Decision No. C17-0750
defers the designation of assets inside substations to the load interconnection process, where
Boulder and Public Service had reached agreement on all material issues. Boulder argued there
was no need for a new application before the Commission. Boulder also challenged Public
Service’s January 18, 2019, Notice of Withdrawal and Objections from the parties’ previous joint
filing of exhibits. Boulder stated there was no real remaining issue with the list of facilities inside
substations and a revised version of Exhibit 5B was expected from Public Service, which should
resolve any remaining issues. Boulder requested oral argument to present these arguments.
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23. Also on June 12, 2019, Boulder filed a Notice Regarding Proposed Process to
Address and Resolve Outstanding Issues. In this filing, Boulder proposed a process for resolving
issues related to Exhibits 5A and 5B and real property interests inside substations.
24. On June 19, 2019, Public Service filed a Response to the City of Boulder’s Notice
of Proposed Procedures and to the Combined Response in Opposition Filed June 12. Public
Service responded that Boulder’s proposed process would not resolve all the outstanding issues.
Public Service requests the Commission grant its January 18, 2019, Notice of Withdrawal and
Objections and order that, once revised Exhibits 5A and 5B are filed, parties be given 30 days to
review and respond. It also asked the Commission to address the Petition for Declaratory Orders.
25. On June 19, 2019, IBM filed a Response to the City of Boulder’s Combined
Response in Opposition and Request the Commission Continue to Hear this Matter En Banc.
IBM reiterated its support for the Petition for Declaratory Orders. In addition, IBM stated it had
concerns with Boulder’s proposed process, particularly that parties had not yet seen finalized
versions of Exhibits 5A and 5B, the Facilities Studies, or the co-location, operations, and
maintenance agreements for substations.
26. On June 19, 2019, Staff filed a Response to Boulder’s Notice. Staff proposed the
Commission allow Boulder’s suggested process to move ahead, and, while awaiting responsive
filings from the parties to Boulder’s recent filings, take up the Petition for Declaratory Orders.
27. On June 28, 2019, Boulder filed a Notice of the Filing of the June 28, 2019
Corrected List of Facilities Outside Substations (Exhibit 5A); Notice Regarding Status of List of
Property Interests Outside Substations (Exhibit 5B); and Notice Regarding the Filing of
Condemnation Case. Boulder requested the Commission accept this Exhibit 5A and, given the
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forthcoming unopposed filing of Exhibit 5B, deem the conditions of Decision No. C17-0750
met.
28. On August 2, 2019, Boulder filed a Notice of Filing the August 2, 2019 Corrected
List of Property Interests Outside Substations (Exhibit 5B), and a new version of Exhibit 5B.
Boulder stated this Exhibit 5B is both over and under-inclusive, as many of the listed property
interests include more than the assets to be transferred, and the list will likely change with the
field work part of the detailed design phase. Boulder requested the Commission accept this filing
as completing Boulder’s compliance with the conditions in Decision No. C17-0750.
29. On August 12, 2019, Public Service filed a Notice Regarding Boulder Filings of
June 28th and August 2nd. Public Service stated it objected to Boulder’s statements that
Exhibits 5A and 5B were in final form and ready for Commission review.
30. On August 14, 2019, the Commission issued Decision No. C19-0686-I, lifting the
stay in this Proceeding and ordering a status conference at which representatives of Boulder,
Public Service, IBM, and Staff were to appear and answer questions regarding the outstanding
issues and pleadings. The Commission asked parties to pre-file written responses to questions on
the status. The Commission held the status conference as scheduled on August 21, 2019, and
discussed with parties when final versions of the filings required by Decision No. C17-0750
were expected and what final review period parties to the Proceeding would need.
31. On August 28, 2019, the Commission issued Decision No. C19-0716-I, requiring
Boulder to make the filings required by Decision No. C17-0750 by August 30, 2019, and
establishing a ten-day period for parties to review and respond to these filings. In addition, the
Commission accepted Public Service’s Petition for Declaratory Orders for decision.
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32. On August 30, 2019, Boulder filed a Notice of Filing of Final Permanent
Easement Agreement, Cost Agreements, Easement Sharing Agreement, and Corrected List
of Assets Outside Substations Pursuant to Decision No. C19-0716-I (Notice of Filing of
Agreements). The Notice of Filing of Agreements included five exhibits:
Exhibit 1. Agreement Concerning Permanent, Non-Exclusive Easements and Other
Necessary Real Property Rights
(Permanent Easement Agreement)
Exhibit 2. Interim Agreement for Payment of Certain Municipalization Costs
(Interim Cost Agreement)
Exhibit 4. Agreement for Payment of Costs
(Cost Agreement)
Exhibit 5. Corrected List of Assets
(Highly Confidential Exhibit 5A, List of Assets)
(Confidential Exhibit 5B, Real Property Interests)
Exhibit 6. Easement Sharing Agreement
33. On September 3, 2019, Public Service filed a Notice of Corrected Highly
Confidential Exhibit 5A, along with a corrected version of this exhibit. Public Service states the
corrected version removes headers that it and Boulder had intended to replace prior to Boulder
making its August 30, 2019, filing.
34. On September 9, 2019, Public Service filed a Response to the City of Boulder’s
August 30, 2019, Notice of Filing of Agreements and Corrected List of Assets. Public Service
stated it has no objection to Exhibits 1, 2, 4, and 6, but does have objections to Exhibits 5A and
5B. With respect to Exhibit 5A, Public Service stated four pages of this exhibit involve
Substation F assets, which remain in dispute and, as to all other substations, a section of the
exhibit includes underground primary feeder assets, which also remain in dispute. With respect to
Exhibit 5B, Public Service stated it does not object to this exhibit subject to the caveat that
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nothing in Exhibit 5B, Exhibit 6 (the Easement Sharing Agreement), or statements by Public
Service constitute agreement by Public Service that its remaining system and operations will not
be damaged within the meaning of condemnation law. Public Service indicated it does not
request a hearing on these filings.
35. On September 9, 2019, IBM filed a Response to Filings Submitted Pursuant to
Decision No. C19-0716-I. IBM responded that it continues to object to inclusion on Exhibit 5A
of facilities directly used to serve IBM associated with Substation F.
36. On September 10, 2019, Boulder filed a Statement of No Opposition to Public
Service’s and IBM’s requests that certain items be removed from Exhibit 5A. Boulder stated it
has no opposition to the changes shown in Attachment 1 to Public Service’s September 9, 2019,
Response to Boulder’s August 30, 2019, Notice of Filing of Agreements, and would file a revised
version of Exhibit 5A, if the Commission directed.
37. On September 30, 2019, through Decision No. C19-0805-I, the Commission
granted in part, and denied in part, Public Service’s Petition for Declaratory Orders. The
Commission issued a declaratory order stating:
Decision No. C17-0750 provides that Boulder may not commence condemnation
proceedings to acquire any Public Service assets inside substations (real or
personal) unless and until Boulder and Public Service reach mutual agreement on
a transfer of assets inside existing Public Service substations.5
The Commission denied Public Service’s request to further declare that an application for
approval of designation of assets inside substations was required. The Commission found it had
already considered and denied a request from Boulder to approve the designation of assets inside
substations for potential transfer from Public Service to Boulder through condemnation. The
5 Decision No. C19-0805-I at ¶ 29 and Ordering ¶ 2.
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Commission declared that Decision No. C17-0750 provides two remaining paths for Boulder
with respect to assets inside substations: either Boulder and Public Service reach agreement on a
transfer of some or all of the assets inside Public Service’s substations, through the transmission
load interconnection and Network Integration Transmission Service processes and related
negotiations, or Boulder will need to, and have the right to, build its own substations to serve its
municipal customers.
38. On October 10, 2019, the Commission deliberated at a Commissioners’
Deliberations Meeting and considered whether the filings made by Boulder on August 30, 2019,
satisfy the three conditions in Decision No. C17-0750 to secure final approval of the designation
of assets outside substation for potential transfer from Public Service to Boulder for Boulder’s
planned new municipal electric utility. The Commission determined these conditions were met
and that it would approve the designation of assets outside substations for transfer, resulting in
this Decision.
C. Discussion and Findings
39. Although there have been numerous filings in this Proceeding, we focus in this
Decision on the recent filings by Boulder on August 30, 2019, in order to determine whether
these filings satisfy the conditions of Decision No. C17-0750 to secure final approval of the
designation of assets outside substations for transfer. We review below each condition in
Decision No. C17-0750, the filings made by Boulder on August 30, 2019, and parties’ responses.
1. Condition 1 of Decision No. C17-0750
File an agreement reached between Boulder and Public Service that provides
Public Service permanent non-exclusive easements and other necessary real
property rights for the location of its electric facilities within Boulder’s city limits
that are necessary for Public Service to provide service to its customers after
separation.
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40. In Decision No. C17-0750, we found, after separation of the electric distribution
systems, Public Service will require access to rights of way and other property rights within
Boulder city limits in order to access facilities necessary for Public Service to continue to serve
its customers.6 We therefore required, as a first condition to secure final approval of the
designation of assets outside substations for transfer, that Boulder file an agreement with Public
Service providing permanent non-exclusive easements and other necessary real property rights
for the location of Public Service’s electric facilities within Boulder city limits as necessary for
Public Service to serve its customers. We found this type of agreement was essential to preserve
Public Service’s ability to serve its customers after separation of the systems.
a. Exhibit 1, Permanent Easement Agreement
41. On August 30, 2019, Boulder filed Exhibit 1, Permanent Easement Agreement. In
its Notice of Filing of Agreements, Boulder states that through this agreement it agrees to grant
to Public Service (after voter approval, but prior to the commencement of construction) a
permanent, non-exclusive easement for Public Service’s use of facilities in Boulder that will
serve out-of-city customers after separation. Boulder states this easement will give Public
Service broad rights to construct, install, operate, repair, remove, replace, reconstruct, alter,
relocate, patrol, inspect, improve, enlarge, and maintain facilities. Boulder states the agreement
provides Public Service will not bear the expense of relocation but will cooperate, provided
specific conditions are satisfied. The agreement contains several exhibits including a map of the
legal boundaries of Boulder city limits; a form of the easement agreement to be granted to Public
Service; a preliminary map and location descriptions of the proposed general locations of the
easement areas (the parties agree a revised map and written descriptions will be substituted once
6 Decision No. C17-0750 at ¶¶ 149-151.
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detailed design drawings are complete); and a form of temporary construction easement to be
granted to Public Service, if requested.
42. No party filed objections to this Exhibit 1.
43. We find Exhibit 1, Permanent Easement Agreement, filed by Boulder on
August 30, 2019, satisfies the first condition of Decision No. C17-0750.
2. Condition 2 of Decision No. C17-0750
Correct the errors and omissions from the list of assets for transfer outside of the
substations and resubmit the revised list of assets for final approval.
44. In Decision No. C17-0750, we found Boulder’s list of assets for potential transfer
was incomplete and contained errors.7 We therefore required, as a second condition to secure
final approval of the designation of assets outside substations for transfer, that Boulder file a
revised list of assets for final approval. We allowed that smaller, associated distribution system
assets could be identified by description rather than itemization.
b. Exhibit 5A, List of Assets
45. On August 30, 2019, Boulder filed Highly Confidential Exhibit 5A, List of Assets.
This exhibit is a 3,497-page list of assets for transfer outside of Public Service’s substations,
including poles, underground transformers, overhead transformers, and primary circuits. Public
Service, on September 3, 2019, filed a Notice of Corrected Highly Confidential Exhibit 5A.
Public Service states this corrected version removes headers that it and Boulder had intended to
replace prior to Boulder’s August 30, 2019, filing.
46. In its Notice of Filing of Agreements, Boulder explains Exhibit 5A includes
identification of poles, underground transformers, overhead transformers, and primary circuits.
7 Decision No. C17-0750 at ¶¶ 152-156.
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Boulder states that ancillary assets and appurtenances outside of the substations are listed by
description (type). Those ancillary assets include customer meters, manholes, service lines,
secondaries, vaults, fiber optic and communication facilities, riser wires, anchor guys, pole
braces, and span guys. Boulder states the assets to be transferred also include streetlights within
city limits. Boulder states it and Public Service have reached agreement on this exhibit, except
for facilities colored in red.
47. In its Response to Boulder’s Notice of Filing of Agreements, Public Service
objects to the inclusion of assets involving Substation F and underground primary feeder assets.
Public Service identifies these assets as: (1) the assets that originate inside Substation F and
make the connection between the substation and the IBM-owned distribution system (i.e., two
short underground feeder lines, two primary meters, and the IBM customer premise information
and associated premise IDs); and (2) the portion of the substation exit feeders for Substations A,
B, C, D, and E located inside those substations. Attachment 1 to Public Service’s Response
identifies the specific assets that it requests be removed from Exhibit 5A.
48. In its Response to Boulder’s Notice of Filing of Agreements, IBM also objects to
the inclusion of certain items on Exhibit 5A. IBM objects to inclusion of “IBM Facilities,” which
IBM states include two exit feeders that interconnect Substation F and IBM’s distribution
system, two primary meters used for IBM service, and five “Lot Centroid” and premises ID
numbers related to IBM service. IBM requests the Commission order the exclusion of
“IBM Facilities” based on the finding that they are substation assets.
49. Boulder filed a Statement of No Opposition to these filings, stating it does not
oppose removing the items contested by Public Service and IBM. Boulder offered to make a
compliance filing amending Exhibit 5A to remove these items, if so directed.
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50. We will grant the unopposed requests by Public Service and IBM to modify
Exhibit 5A, as shown in Attachment 1 to Public Service’s Response to Boulder’s Notice of
Filings of Agreements. We find no need for Boulder to file another final version of Exhibit 5A
with these specified modifications.
c. Exhibit 5B, Real Property Interests
51. In Decision No. C17-0750, we also required that the updated list of assets include
real property interests associated with the assets Boulder seeks to acquire (e.g., property rights
outside of the Boulder rights of way).8 We found it necessary for Public Service to understand
which property rights it risks losing in order to be assured that it would retain the ability to
provide safe, reliable, and effective service. We noted Public Service should work with Boulder
to identify any real property in which gas or transmission facilities are located with electric
facilities and assist Boulder in identifying unrecorded claims associated with the facilities that
would be owned by Boulder and the instances where Public Service’s gas facilities or
transmission facilities share an easement with the electric distribution facilities, including the
portion Public Service must retain to provide gas or transmission services.
52. On August 30, 2019, Boulder filed Confidential Exhibit 5B, Real Property
Interests. This exhibit comprises spreadsheets, identified as Parts One through Part Five,
showing, as Boulder explains in its Notice of Filing of Agreements, the parties’ efforts to identify
the real property interests Public Service may hold that are associated with its electric
distribution system that may become part of Boulder’s distribution system.
8 Decision No. C17-0750 at ¶¶ 155-156.
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53. In its Response to Boulder’s Notice of Filing of Agreements, Public Service
explains Exhibit 5B, as initially filed on October 26, 2018, consisted of two parts: Boulder’s list
of recorded documents and Public Service’s list of unrecorded (and in some cases recorded)
documents. Public Service explains the exhibit now consists of five parts: Boulder’s original list,
as revised; Public Service’s original list, as revised; additional recorded easements; easements in
a “City Easement” layer provided by Boulder; and service lines to customer premises and other
real property interests identified by Public Service.
54. Public Service states it believes a reasonable methodology was used to identify
the real property interests and associated Boulder and Public Service facilities for the exhibit and
that, subject to the limitations of this methodology, the exhibit is accurate and complete. Public
Service explains identification of real property in which gas or transmission facilities are located
with electric facilities, and the instances where Public Service’s gas facilities or transmission
facilities share an easement with the electric distribution facilities, was done by electronic query
using Public Service’s Geographical Information System (GIS) system, shapefiles (digitized
legal descriptions), the separation plan GIS layer provided by Boulder identifying the facilities
outside substations to be acquired by Boulder and the facilities to be retained by Public Service,
Public Service’s GIS data for its gas distribution and transmission facilities, and Boulder County
Assessor’s office property records.
d. Exhibit 6, Easement Sharing Agreement
55. On August 30, 2019, Boulder filed Exhibit 6, Easement Sharing Agreement. In its
Notice of Filing of Agreements, Boulder explains this agreement addresses how the two utilities
will operate in a shared easement that includes both electric distribution facilities acquired by
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Boulder and other facilities that Public Service will retain in order to provide gas distribution and
gas or electric transmission service (and any electric distribution assets Public Service retains).
56. In November 2018, when the parties first filed this agreement, they requested
modification of ¶¶ 155-156 of Decision No. C17-0750 to specify the parties do not need to
complete, in this Proceeding, identification of all the easements and other property interests
associated with the assets Boulder seeks to acquire. The parties explained they negotiated the
Easement Sharing Agreement after finding that identifying all these rights would be more
complex and time consuming than anticipated. They represented that their negotiated agreement
would protect Public Service’s ability to provide safe, reliable, and effective distribution and
transmission service to its customers after separation and not shift costs to Public Service
customers, while also allowing Boulder to use the easements and other real property interests
associated with the electric distribution facilities it acquires.9
57. In its August 30, 2019 Notice of Filing Agreements, Boulder again states the
parties agree the Easement Sharing Agreement “will protect PSCo’s ability to provide gas or
transmission services and not shift costs to gas and transmission customers, while also allowing
Boulder to utilize the easements for the existing electric distribution facilities it acquires, it is not
necessary to identify the portions of each easement PSCo must retain.”10
58. In its Response to Boulder’s Notice of Filing of Agreements, Public Service states
the Easement Sharing Agreement is intended to address operations in those easements and other
real property interests, not in public rights of way, in which Boulder and Public Service both
9 Boulder and Public Service Motion for Modification of Certain Provisions of Paragraphs 155 and 156 of
Decision No. C17-0750 at ¶¶ 11-12 (November 16, 2018).
10 Boulder Notice of Filing of Final Permanent Easement Agreement, Cost Agreements, Easement Sharing
Agreement and Corrected List of Assets Outside Substations Pursuant to Decision No. C19-0716-I at ¶ 30
(August 30, 2019).
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have, or may have, facilities after separation and the Cut-Over Date. Public Service states it
supports the statement it made when the agreement was first filed, that the agreement will protect
Public Service’s ability to provide gas distribution, gas and electric transmission services, within
and outside Boulder, and electric distribution outside of Boulder, and not shift costs to its
customers, while allowing Boulder to use the easements and other property interests associated
with the distribution facilities that it acquires.11 Public Service requests, however, the
Commission include, in any decision, language like ¶ 258 of Decision No. C17-0750, which
stated: “Nothing in this Decision shall be used by either party in any condemnation proceeding
as a finding or opinion of the Commission as to whether or not there are damages to any
remainder interest of Public Service in the assets.”
59. We find good cause to find that Exhibit 6, Easement Sharing Agreement, satisfies
the requirements of ¶¶ 155-156 of Decision No. C17-0750; provided, however, we rely on the
parties’ repeated representations that this agreement is an appropriate substitute for identifying
each real property right in this Proceeding. Notably, we rely on the parties’ assurance that this
agreement will protect Public Service’s ability to provide safe, reliable, and effective distribution
and transmission service to its customers after separation and not shift costs to Public Service
customers, while also allowing Boulder to use the easements and other real property interests
associated with the electric distribution facilities it acquires.
60. We find Exhibits 5A and 5B, together with Exhibit 6, satisfy the second condition
of Decision No. C17-0750. We will therefore approve the designation of assets outside
substations for potential transfer from Public Service to Boulder identified in: (1) Highly
11 Public Service Response to Boulder’s August 30, 2019, Notice of Filing of Agreements and Corrected
List of Assets at ¶ 25 (September 9, 2019).
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Confidential Exhibit 5A, filed by Boulder on August 30, 2019, corrected by Public Service on
September 3, 2019, and as modified in Attachment 1 to Public Service’s September 9, 2019,
Response to Boulder’s August 30, 2019, Notice of Filing of Agreements and Corrected List of
Assets; and (2) Confidential Exhibit 5B, filed by Boulder on August 30, 2019. We approve the
designation of these assets for transfer to the extent the assets are located outside the substations
that Public Service presently uses to serve its retail electric customers in the Boulder area and are
the property of Public Service.
3. Condition 3 of Decision No. C17-0750
File an agreement between Boulder and Public Service that addresses the payment
by Boulder to Public Service of the costs incurred by Public Service to effectuate
the separation of the systems.
61. In Decision No. C17-0750, as a third condition to secure final approval of the
designation of assets outside substations for transfer, we required Boulder to file agreement(s)
with Public Service that address payment by Boulder of costs incurred by Public Service to
separate the systems.12 We required these agreements address reimbursement of costs incurred by
Public Service as it assisted Boulder to comply with the conditions of Decision No. C17-1075,
and costs associated with development of scope of work documents and detailed design drawings
and specifications, and new construction and reconfiguration costs incurred by Public Service to
separate the systems. We further required, because Boulder could decide not to go forward with
municipalization after separation activities had begun, the agreements address how Public
Service would recover costs to restore the systems to a single system. We also required the
agreements address responsibilities for repair and replacement of facilities while Public Service
is still providing service to customers in Boulder, how failures and damages will be addressed
12 Decision No. C17-0750 at ¶¶ 157-161.
Before the Public Utilities Commission of the State of Colorado
Decision No. C19-0874 PROCEEDING NO. 15A-0589E
23
after the date value is established in condemnation, and other “true up” at the Cut-Over Date not
addressed in condemnation.
e. Exhibit 2, Interim Cost Agreement; Exhibit 4, Cost Agreement
62. On August 30, 2019, Boulder filed Exhibit 2, Interim Cost Agreement; and
Exhibit 4, Cost Agreement.
63. In its Notice of Filing of Agreements, Boulder explains the Interim Cost
Agreement allowed preliminary work and activities to proceed related to the three conditions in
Decision No. C17-0750. Boulder explains that Public Service has submitted invoices, which
Boulder has paid, for work associated with negotiating the required agreements as well as
preparing scopes of work and identifying the facilities and property interests for the list of assets.
64. Boulder states the Cost Agreement covers costs incurred before and after
Boulder’s final decision whether to move forward with municipalization. Boulder explains
this agreement addresses Boulder’s responsibilities including costs related to: (1) Pre- and
Post-Go/No Go Decision work; (2) service prior to the Cut-Over Date; (3) regulatory
proceedings; (4) litigation involving third-party contracts, enforcement of security provisions,
and attorney’s fees to enforce the agreement; and (5) restoration if Boulder abandons
municipalization. Boulder states the parties have agreed to cooperate in good faith to effectuate
separation without unnecessary delay or costs. They agree to confer every 30 days to provide
information on progress, coordinate, and discuss additional matters. The agreement provides that
estimates for separation and cut-over work will be provided by May 1, 2020, or if not available,
Public Service will provide Boulder the information it has available and provide its estimate as
soon as available. Boulder states Article IV provides for security to protect Public Service and its
ratepayers against non-payment by Boulder.
Before the Public Utilities Commission of the State of Colorado
Decision No. C19-0874 PROCEEDING NO. 15A-0589E
24
65. No party filed a response objecting to either of these exhibits.
66. We find Exhibit 2, Interim Cost Agreement; and Exhibit 4, Cost Agreement,
satisfy the third condition of Decision No. C17-0750.
67. As previously discussed in Decision No. C17-0750, these agreements are not
jurisdictional to the Commission and the Commission will not have authority to resolve disputes
arising from compliance with the agreements.13
68. Also as discussed in Decision No. C17-0750, Public Service will be required to
account for the costs it incurs associated with Boulder’s municipalization efforts for purpose of
review in future rate cases by the Commission. Staff and other parties to those future proceedings
will have opportunity to review the costs and the Commission will make at that time any
decisions on what costs may or may not be included in Public Service’s revenue requirement.14
D. Conclusion
69. We find through Boulder’s August 30, 2019, Notice of Filing of Agreements,
Exhibits 1, 2, 4, 6, Highly Confidential Exhibit 5A, and Confidential Exhibit 5B, Boulder has
met the conditions in Decision No. C17-0750 to secure final approval of the designation of assets
outside substations for potential transfer from Public Service to Boulder for Boulder’s planned
new municipal electric utility. We therefore approve the designation of assets for transfer from
Public Service to Boulder identified in Exhibits 5A and 5B to the extent the assets are located
outside of substations and are the property of Public Service. With these final determinations, we
close this Proceeding. Consistent with our findings in this Decision, all outstanding filings in this
Proceeding filed prior to August 30, 2019, are denied as moot.
13 See Decision No. C17-0750 at ¶¶ 161, 215-219 (discussing dispute resolution).
14 See Decision No. C17-0750 at ¶ 254 (discussing establishing rates in future rate proceedings).
Before the Public Utilities Commission of the State of Colorado
Decision No. C19-0874 PROCEEDING NO. 15A-0589E
25
70. Prior to the Cut-Over Date, Boulder and Public Service shall file, pursuant to
§ 40-5-105, C.R.S., an application in a separate proceeding for final Commission approval of the
transfer of Public Service’s assets to Boulder.
71. We reiterate that neither Decision No. C17-0750 nor this Decision shall be used
by either party as a preliminary approval of the transfer of assets.15 Final approval of the transfer
of assets under § 40-5-105, C.R.S., will be accomplished, as necessary, in a separate proceeding
by a joint filing of an application for approval of the transfer of assets from Public Service to
Boulder. Likewise, nothing in Decision No. C17-0750 or this Decision shall be used by either
party in any condemnation proceeding as a finding or opinion of the Commission as to whether
there are damages to any remainder interest of Public Service in the assets.16
II. ORDER
A. The Commission Orders That:
1. Consistent with the discussion above, the City of Boulder (Boulder) has met the
conditions established by the Commission in Decision No. C17-0750, issued September 14,
2017, in this Proceeding No. 15A-0589E, to secure final approval of the designation of assets
outside substations for potential transfer from Public Service Company of Colorado (Public
Service) to Boulder.
2. The request of Public Service to modify Highly Confidential Exhibit 5A, as
shown in Attachment 1 to Public Service’s September 9, 2019, Response to Boulder’s August 30,
2019, Notice of Filing of Agreements and Corrected List of Assets, is granted.
15 Decision No. C17-0750 at ¶¶ 164, 258.
16 Decision No. C17-0750 at ¶ 258.
Before the Public Utilities Commission of the State of Colorado
Decision No. C19-0874 PROCEEDING NO. 15A-0589E
26
3. We approve the designation of assets outside substations for transfer from Public
Service to Boulder identified in: (1) Highly Confidential Exhibit 5A, filed by Boulder on
August 30, 2019, corrected by Public Service on September 3, 2019, and as modified in
Attachment 1 to Public Service’s September 9, 2019, Response to Boulder’s August 30, 2019,
Notice of Filing of Agreements and Corrected List of Assets; and (2) Confidential Exhibit 5B,
filed by Boulder on August 30, 2019. We approve the designation of these assets for transfer to
the extent the assets are located outside the substations that Public Service presently uses to serve
its retail electric customers in the Boulder area and are the property of Public Service.
4. Proceeding No. 15A-0589E is now closed.
5. All outstanding filings in this Proceeding, filed prior to August 30, 2019, are
denied as moot. These filings are as follows:
Joint Notice of Filing of Permanent Easement Agreement, Cost Agreements, and Corrected
List of Assets Outside Substations and Boulder’s Report Regarding the Commencement of
Condemnation Proceedings, filed by Boulder and Public Service on October 26, 2018
Motion for Final Approval of Designation of Assets Outside Substations for Transfer, filed by
Boulder on November 16, 2018
Motion for Modification of Certain Provisions of Paragraphs 155 and 156 of Decision
No. C17-0750, filed by Boulder and Public Service on November 16, 2018
Response, Request for Hearing, Request for Clarification, and Request for Status Conference,
filed by IBM, Corp. (IBM) on December 17, 2018
Request for Hearing, filed by Staff of the Public Utilities Commission (Staff) on
December 17, 2018
Response, Request for Clarification, and Request for Status Conference, filed by Tri-State
Generation and Transmission Association, Inc. on December 17, 2018
Response to Requests for Hearing and Status Conference, filed by Boulder on January 4,
2019
Notice of Withdrawal from Joint Motion for Modification of Commission
Decision C17-0750; Notice of Company’s Objections to the List of Assets; Or In the
Alternative, Motion for Leave to File Out of Time Objections to the Asset List and Request
for Hearing, filed by Public Service on January 18, 2019
Before the Public Utilities Commission of the State of Colorado
Decision No. C19-0874 PROCEEDING NO. 15A-0589E
27
Response to Public Service’s Notices and Alternative Motion and Request for Hearing, filed
by Staff on February 1, 2019
Combined Response in Opposition to: (1) Petition for Declaratory Orders; and (2) Notice of
PSCo’s Withdrawal from the Joint Motion for Modification; Objections to the List of Assets;
or In the Alternative, Motion for Leave to File Out of Time Objections; and Request for Oral
Argument, filed by Boulder on June 12, 2019
Notice Regarding Proposed Process to Address and Resolve Outstanding Issues, filed by
Boulder on June 12, 2019
Response to Boulder’s Notice of Proposed Procedures and to the Combined Response in
Opposition Filed June 12, filed by Public Service on June 19, 2019
Response to Boulder’s Combined Response in Opposition and Request the Commission
Continue to Hear this Matter En Banc, filed by IBM on June 19, 2019
Response to Boulder’s Notice, filed by Staff on June 19, 2019
Notice of the Filing of the June 28, 2019 Corrected List of Facilities Outside Substations
(Exhibit 5A); Notice Regarding Status of List of Property Interests Outside Substations
(Exhibit 5B); and Notice Regarding the Filing of Condemnation Case, filed by Boulder on
June 28, 2019
Notice of Filing the August 2, 2019 Corrected List of Property Interests Outside Substations
(Exhibit 5B), filed by Boulder on August 2, 2019
Notice Regarding Boulder Filings of June 28th and August 2nd, filed by Public Service on
August 12, 2019
6. The 20-day time period provided by § 40-6-114, C.R.S., to file an application for
rehearing, reargument, or reconsideration shall begin on the first day after the effective date of
this Decision.
7. This Decision is effective upon its Mailed Date.
Before the Public Utilities Commission of the State of Colorado
Decision No. C19-0874 PROCEEDING NO. 15A-0589E
28
B. ADOPTED IN COMMISSIONERS’ DELIBERATIONS MEETING
October 10, 2019.
(S E A L)
ATTEST: A TRUE COPY
Doug Dean,
Director
THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF COLORADO
JEFFREY P. ACKERMANN
________________________________
FRANCES A. KONCILJA
________________________________
JOHN GAVAN
________________________________
Commissioners
EXHIBIT 7
ORDINANCE 8302
DATE FILED: December 19, 2019 4:51 PM
FILING ID: E6CAC62995A84
CASE NUMBER: 2019CV31226
Assets for TransferCreated and Collaboratively Updated by Boulder and PSCo in October 2018 from 2018 System DataBoulder System Distribution Asset TotalsAsset NameAsset Database FieldCurrent OwnershipTotal Asset Count Existing Install Remove/Retired Units Description TotalsAnchor GuyAnchor_Guy_Location.shpPSCo27842708 3442Qty.BusbarBusbar_Route.shpPSCo20031964 327Qty.Capacitor RackCapacitor_Rack_Location.shpPSCo5857 10Qty.Duct BankDuct_Bank_Actuai_Route.shpPSCo14881415 3142Feet Total Length 152500Elbow LocationElbow_Location.shpPSCo10094 60Qty.Electric LocatorElectric_Locator_Location.shpPSCo11 00Qty.Lot CentroidLot_Centroid_and_Premise_location.shpServed by PSCo28546N/A N/AN/AQty.OH FuseOH_Fuse_Location.shpPSCo130412662315Qty.375970251436FeetSingle Phase377431160690260FeetDouble Phase16329430164 3239972FeetThree Phase434376Overhead Secondary Change MarkerOH_Secondary_w_wires_Change_Marker.shpPSCo14331400 033Qty.Overhead Secondary WiresOH_Secondary_w_wires_Route.shpPSCo73727148 66158Feet Total Length 0Overhead SwitchOH_Switch_location.shpPSCo326320 51Qty.3 00Qty. 0kVA31 00Qty. 5kVA121 00Qty. 10kVA 2131 00Qty. 15kVA 310 00Qty. 20kVA 0391 07Qty. 25kVA 3986 00Qty. 30kVA 60 00Qty. 35kVA 02 00Qty. 37.5kVA 21 00Qty. 40kVA 13 00Qty. 45kVA 3336 00Qty. 50kVA 33626 02Qty. 75kVA 2840 00Qty. 100kVA 403 00Qty. 110kVA 31 00Qty. 115kVA 14 00Qty. 125kVA 428 00Qty. 150kVA 283 00Qty. 167kVA 31 00Qty. 215kVA 12 00Qty. 225kVA 21 00Qty. 267kVA 118 00Qty. 300kVA 182 00Qty. 500kVA 214 00Qty. Unknown 14Overhead Transformer Secondary ConnectionOH_Transformer_Bank_Secondary_Connection.shpPSCo14121402 010Qty.Overhead Transformer Secondary LocationOH_Transformer_Bank_Secondary_Location.shpPSCo14121402 010Qty.Transformer PadPad_location.shpPSCo26102600 17Qty.Service PedestalPedestal_Location.shpPSCo0000Qty.Pole BracePole_Brace_location.shpPSCo1100Qty.Pole Pole_location.shpPSCo1068110054 100527Qty.Power Quality MeterPower_Quality_Meter_Location.shpPSCo99 00Qty.Primary Intersect ConnectPrimary_Intersect_Connect_Location.shpPSCo66 00Qty.Primary Meter Customer ConnectionPrimary_Meter_Customer_Connection.shpPSCo3331 11Qty.Primary MeterPrimary_Meter_Location.shpPSCo3532 21Qty.Primary Open PointPrimary_Open_Point_Location.shpPSCo317307 73Qty.Primary SplicePrimary_Splice_Location.shpPSCo379328 447Qty.Recloser BankRecloser_Bank_Location.shpPSCo2020 00Qty.OH_Primary_w_Wires_Route.shpPSCo6415PSCo947Exhibit 5A: Boulder and Public Service acknowledge that the distribution assets outside substations may change as a result of Scopes of Work, Detailed Design Drawings and during Separation. Inclusion on the spreadsheets is not evidence of agreement regarding ownership of the assets by PSCo. WARNING: If printed, it is estimated that the spreadsheets would use approximately 1600 pages of letter size paper. Overhead Primary WiresOverhead Transformer BankOH_Transformer_Bank_Location.shpAsset Sums & TotalsPage 1 of 1581Exhibit A to Proposed Ordinance 8302Item 5A - Acquisition of Xcel Property InterestsCity Council Meeting Page 399 of 553
Orig Fid Record Number Site Own 1Util Types at 10 feet Util Types at 20 feetAdditional Hit at 20 feet Util Types at 30 feetAdditional Hit at 30 feet Util Types at 40 feetAdditional Hit at 40 feetUtil Types at 50 feetAdditional Hit at 50 feet00Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist11EdistEdistEdistEdistEdist22Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist33EdistEdistEdistEdistEdist, GdistYES44EdistEdistEdistEdist, GdistYESEdist, Gdist55GdistEdist, GdistYESEdist, GdistEdist, GdistEdist, Gdist66Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist77EdistEdistEdistEdist, GdistYESEdist, Gdist88EdistEdistEdistEdistEdist, GdistYES99EdistEdistEdistEdistEdist1010 84178GEdistEdistEdistEdistEdist1111 156237Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist1212 77095Edist, Gdist, GtranEdist, Gdist, GtranEdist, Gdist, GtranEdist, Gdist, GtranEdist, Gdist, Gtran1313 76579Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist1414 76579Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist1515 85729Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist1616 26451Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist1717 26451Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist1818 91637NoneNoneNoneEdist, GdistYESEdist, Gdist1919 26451Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist2020 91637Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist2121 64496Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist2222Edist, Etran, GdistEdist, Etran, GdistEdist, Etran, GdistEdist, Etran, GdistEdist, Etran, Gdist2323 91637Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist2424 152686 GEdist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist2525Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist2626 81047Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist2727EdistEdistEdistEdistEdist2828NoneEdistYESEdistEdistEdist2929 85713EdistEdistEdistEdistEdist3030 137533Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist3131 144891Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist3232 87380EdistEdistEdistEdistEdist3333 88379EdistEdistEdistEdistEdist3434Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist3535 137643Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist3636 149418 EEdistEdistEdistEdistEdist, GdistYES3737 146406Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist3838 152537 EEdistEdistEdistEdist, GdistYESEdist, Gdist3939 152954 EEdist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist4040 162484Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist4141Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist4242NoneNoneEdist, GdistYESEdist, GdistEdist, Gdist4343EdistEdistEdistEdist, GdistYESEdist, Gdist4444Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist4545EdistEdistEdistEdistEdist4646 47642Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist4747 87713Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist4848 150075GGdistGdistGdistGdistGdist4949Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist5050Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist5151NoneNoneNoneNoneNone5252Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist5353Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist5454Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist5555 66279EdistEdistEdistEdistEdist5656GdistGdistEdist, GdistYESEdist, GdistEdist, Gdist5757 70030EdistEdistEdistEdistEdist5858 73995EdistEdistEdistEdistEdist5959 76556Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist6060Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist6161 152964 EEdist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist6262 152088 GEdist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist6363 156234-GGdistGdistGdistGdistGdist6464EdistEdistEdistEdistEdist6565 154030 EEdistEdistEdistEdistEdist6666 68681NoneNoneNoneNoneGdistYES6767 68060Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist6868 64957AGdistEdist, GdistYESEdist, GdistEdist, GdistEdist, Gdist6969 64957AEdist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist7070 64957AGdistEdist, GdistYESEdist, GdistEdist, GdistEdist, Gdist7171 78676NoneNoneNoneNoneNone7272 156235 GGdistGdistGdistEdist, GdistYESEdist, Gdist7373 83543Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist7474 81411-AEdist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist7575 81412-AEdist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist7676 84927NoneNoneNoneGdistYESGdist7777 84948Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist7878 88380NoneNoneEdistYESEdistEdist, GdistYES7979 88380Edist, GdistEdist, GdistEdist, GdistEdist, GdistEdist, Gdist8080 88380EdistEdistEdist, GdistYESEdist, GdistEdist, Gdist8181Edist, Gdist, GtranEdist, Gdist, GtranEdist, Gdist, GtranEdist, Gdist, GtranEdist, Gdist, GtranExhibit 5B: Boulder and Public Service acknowledge that there may be other Public Service easements or other property rights associated with assets outside substations that Boulder is authorized to acquire that have not yet been identified by the City and Public Service, including but not limited to recorded and non-recorded easements, prescriptive and other common law easements, easements created by plats, tariffs, licenses, and rights granted or reserved by other instruments or otherwise existing. Inclusion on the spreadsheets is not evidence of agreement regarding ownership of the property interests by PSCo.WARNING: If printed, it is estimated that the list of property interests would use 23 pages of letter size paper.5B Boulder Page1Exhibit B to Proposed Ordinance 8302Item 5A - Acquisition of Xcel Property InterestsCity Council Meeting Page 400 of 553