KK DuVivier: Letter to Council


August 31, 2020

Dear Council Members,

I ask you to remove approval of the PSCO/ Boulder Settlement Agreement from your consent agenda for tomorrow’s Council meeting (September 1).

I don’t know whether Boulder has again been outmaneuvered by PSCO’s fleet of lawyers or if this is an oversight resulting from the overly-rushed process of preparing this proposed Agreement.  However, as currently written, Section I.F of the Settlement Agreement reads as follows:

F. Litigation.

Upon certification of election results showing voter approval of the 2020 Franchise:

1. The pending condemnation case in Boulder District Court Case 19CV31226 will be dismissed by the parties thereto without prejudice.

2. Boulder will withdraw the 210 Application and associated Offer of Settlement pending before FERC. …

Thus, Boulder is unilaterally required to halt all progress it has made thus far– whether in court or before FERC—before any approval of the Agreement by the Colorado Public Utilities Commission. Usually, parties do not withdraw or halt actions until a settlement is truly reached. Furthermore, Section I. A reads as follows:

A. Franchise Agreement.

Except as provided otherwise in paragraph L and M below, all rights, obligations and conditions in this agreement are expressly conditioned upon the passage by the Boulder electorate at the November 3, 2020 election of a ballot measure approving the Franchise Agreement in substantially the form attached as Exhibit A to this agreement, and approval of the Franchise Agreement by the PUC. (“2020 Franchise”).(Emphasis added.)

This section does not make the Settlement Agreement binding on PSCO until the Agreement has been approved by both the Boulder electorate and the Colorado PUC. Boulder should not be required under section I.F to unilaterally disarm before PSCO will also be bound by the Agreement under section I.A.

If you do not withdraw this consent item, at the very least, the language of section F of the Settlement Agreement should be amended to read as follows:

F. Litigation.

Upon certification of election results showing voter approval of the 2020 Franchise and approval of the Franchise Agreement by the PUC….

Boulder voters rely on their representatives to protect their interests. While these settlement items have many errors and pitfalls, creating potential for additional litigation, I implore you to fix at least some of the most egregious problems to this proposed Agreement and the related documents before continuing to ram them through and passing these defects along to an unsuspecting electorate.

Sincerely,

K.K. DuVivier
Professor of Law
University of Denver Sturm College of Law