HomeMy WebLinkAbout2023CV30659 - East Larimer County Water Dist. v. K & M Co., et al. - 026 - Notice Of Amended Exhibit 1
DISTRICT COURT, LARIMER COUNTY, COLORADO
201 LaPorte Avenue, Suite 100
Fort Collins, Colorado 80521
(970) 494-3500
Petitioners: EAST LARIMER COUNTY WATER DISTRICT, a
quasi-municipal corporation and political subdivision of the
State of Colorado; and NORTH WELD COUNTY WATER
DISTRICT, a quasi-municipal corporation and political
subdivision of the State of Colorado,
v.
Respondents: K & M COMPANY, LLLP, a Colorado limited
liability limited partnership; BOXELDER SANITATION
DISTRICT; THE CITY OF FORT COLLINS, a municipal
corporation; ANADARKO E&P ONSHORE LLC, a
Delaware limited liability company; ANADARKO LAND
CORP., a Nebraska corporation; POUDRE VALLEY
RURAL ELECTRIC ASSOCIATION, INC., a Colorado
cooperative association; and IRENE JOSEY in her official
capacity as the COUNTY TREASURER OF LARIMER
COUNTY, COLORADO
COURT USE ONLY
Attorneys for Petitioners:
Case Number:
Jamie N. Cotter, No. 40309
2023CV30659
Lauren A. Taylor, No. 52452
SPENCER FANE LLP
Division: 3B
1700 Lincoln Street, Suite 2000
Denver, Colorado 80203
Telephone: 303-839-3800 Fax: 303-839-3838
E-mail:jcotter@spencerfane.com;
ltaylor@spencerfane.com
NOTICE OF FILING
, file Amended Exhibit
1 to the previously filed Reply in Support of Motion for Immediate Possession.
1
Respectfully submitted this 17th day of January, 2024.
SPENCER FANE LLP
s/ Jamie N. Cotter
Jamie N. Cotter
Lauren A. Taylor
Attorneys for Petitioners East Larimer
County Water District and North Weld
County Water District
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on January 17, 2024 a true and correct
copy of the foregoing was filed and served via CCES upon all counsel of record.
/s/ Lauren A. Taylor
Lauren A. Taylor
2
EXHIBIT
2
DISTRICT COURT, LARIMER COUNTY, COLORADO
201 LaPorte Avenue, Suite 100
Fort Collins, Colorado 80521
(970) 494-3500
Petitioners:EAST LARIMER COUNTY WATERDISTRICT, a
quasi-municipal corporation and political subdivision of the
State of Colorado; and NORTH WELD COUNTY WATER
DISTRICT, a quasi-municipal corporation and political
subdivision of the State of Colorado,
v.
Respondents: K & M COMPANY, LLLP, a Colorado limited
liability limited partnership; BOXELDER SANITATION
DISTRICT; THE CITY OF FORT COLLINS, a municipal
corporation; ANADARKO E&P ONSHORE LLC, a
Delaware limited liability company; ANADARKO LAND
CORP., a Nebraska corporation; POUDRE VALLEY
RURAL ELECTRIC ASSOCIATION, INC., a Colorado
cooperative association; and IRENE JOSEY in her official
capacity as the COUNTY TREASURER OF LARIMER
COUNTY, COLORADO
COURT USE ONLY
Attorneys for Petitioners:
Case Number:
Jamie N. Cotter, No. 40309
2023CV30659
Lauren A. Taylor, No. 52452
SPENCER FANE LLP
Division: 3B
1700 Lincoln Street, Suite 2000
Denver, Colorado 80203
Telephone: 303-839-3800Fax: 303-839-3838
E-mail:jcotter@spencerfane.com;
ltaylor@spencerfane.com
AFFIDAVIT OF ERIC RECKENTINE
Eric Reckentine,being of age and duly sworn, deposes and affirms the following:
1.I am theManager of the and North Weld County Water District, and have personal
knowledge of this action and the waterline pipeline project known as NEWT 3pipeline(Project
and I make this Affidavit in that capacity.
2.
have determined that there is a need and
necessity to construct the Project.
3. On May 5, 2023, the board of directors of ELCO approved and adopted Resolution
2023-05-01 approving and specifically authorizing the use of eminent domain to acquire the
property interests the Districts seek to acquire for the Project. See Resolution 2023-05-01, attached
hereto as Exhibit 1-A.
4. On July 17, 2023, the board of directors of NWCWD approved and adopted
Resolution 20230612-01 approving and specifically authorizing the use of eminent domain to
acquire the property interests the Districts seek to acquire for the Project. See Resolution
20230612-01 attached hereto as Exhibit 1-B.
5.
documents, show that they are water districts and have the power and authority to condemn. See
Orders and Decrees attached hereto as Exhibit 1-C.
6. Respondent K&M Company, LLLP K&M owns a second parcel to the west of
the property at issue in this case. On October 13, 2023, K&M granted ELCO a Permanent Water
See K&M West Easement
attached hereto as Exhibit 1-D.
7. K&M acknowledged in the K&M West Easement that NWCWD has an existing
-
D. These prior acknowledgements show that there is no actual dispute about whether the Districts
actually have the power to condemn.
8. The Project is necessary to protect and promote public health, safety, and welfare
because the Project will provide the Districts with a needed increase in capacity to meet increasing
demands of the public constituents located in its service area and to provide redundancy to existing
aging transmission systems as part of managing risks associated with critical infrastructure. It is a
continuation of previously built NEWT 1 (2010) and NEWT 2 (2015) segments.
9. More specifically, the Project, and the acquisitions of the Easements, are necessary
to protect and promote public health, safety and welfare because:
a. The acronym NEWT refers to the multi-year, multi-phase North Weld County and
East Larimer County Districts Water Transmission Pipeline Project
. The NEWT Pipeline Project is jointly owned by NWCWD and
ELCO. Phase 3 of the NEWT Pipeline Project, i.e., the Project, is needed to connect
the previously construction Phase 1 (2010) and Phase 2 (2015) pipelines to the
complete, the Project will provide the
Districts with a much needed increase in transmission capacity to convey treated
2
DE 8457831.1
water from the Soldier Canyon Filter
systems, thereby serving the public located within the Districts service area with
potable water. In addition, a fully operational NEWT pipeline will provide the
that will help mitigate risks associated with
operating their existing and aging transmission lines.
b. As shown in Figure 2-1 below, the Districts currently rely on several treated water
transmission pipelines located within the City of Fort Collins and Larimer County
conveying existing water rights owned by the Districts. NWCWD currently relies
on two transmission systems (North and South) to supply potable water to their
service area. In association with ELCO, NWCWD relies on the existing 42-inch
NEWT Phase 1 and 2 Pipelines as well as the shared 24-inch Mountain Vista
Pipeline that was constructed in the 1993 and the Summit View Pump Sation
(SVAPS) that was constructed in 2001. These transmission pipelines and the SVPS
are referrfrom the SCFP to
conveys flow
by gravity unless higher customer demands require flows to be boosted by use of
h system is comprised of an existing 24-inch
distribution system and includes Pump Station 1 (PS1) located on Mulberry Street
east of Interstate 25. The installation of the existing 24-inch transmission line was
completed in 1963. PS1 was originally constructed in 1984 with additional pumps
added in 2000 to increase its capacity. The South System generally flows by gravity
during lower demand seasons and then relies on PS1 to boost flows to meet higher
demands between late spring and early fall.
c. Like NWCWD, ELCO also relies on the exiting 42-inch NEWT Phase 1 and 2
Pipelines, the 24-inch Mountain Vista Pipeline, and the use of the SVPS to meet
customer water demands. In addition to these shared facilities, ELCO also relies on
a 24-inch transmission line located between SCFP and North Timberline Road.
4-inch transmission line generally operates parallel to the shared
NEWT Phase 1 and 2 Pipelines and provides transmission capacity to the center of
their distribution system.
d. In the mid-2000s, prior to the construction of Phase 1 and Phase 2 of the Project,
the Districts identified the future need for Phase 3, i.e., the Project, to provide
additional capacity east of Timberline Road which could not be accomplished by
Phases 1 and 2, the 24-inch Mountain Vista Pipelines, and
independently owned and operated 24-inch transmission lines. Over the last several
years, demands in both Districts have steadily increased and, during recent summer
demand seasons, the Districts have had difficulty maintaining appropriate water
levels within their respective water storage tanks in order to appropriately serve all
constituents located in their service areas.
3
DE 8457831.1
e. In addition to the need to increase transmission capacity, the Districts are in need
of adding additional redundancy to their transmission systems. The shared
Mountain Vista Pipeline -inch transmission line is
-inch transmission line is 40 years old. With the age
of these critical pipelines, the completion of Project will help the Districts properly
manage the risks associated with the continued operation of their older transmission
systems components to ensure continued service to the public located within the
Districts service area with potable water.
10. The Districts have determined that the acquisition of the following easements
, and across a portion of the property that is within the NE 1/4
and SE 1/4 of Section 5, Township 7 North, Range 68 West of the 6th P.M., and is more
particularly described on Exhibit 1-E is necessary for the purpose of
constructing the Project:
a.
Exhibit 1-F; and
b.
depicted in Exhibit 1-G.
4
DE 8457831.1
11. There is a public need and necessity to obtain and acquire the Property in order to
allow the Districts to complete the Project, which is in furtherance of the public use and purpose
d the community through
the Project.
12. The Districts need to acquire the Permanent Easement, and the purpose of the
Permanent Easement is for accessing, surveying, locating, marking and maintaining the marking
of the location with suitable markers, relocating, installing, constructing, using, operating,
maintaining, inspecting, repairing, altering, removing, and replacing one or more buried water
pipelines at the depth and location shown on the construction plans attached as Exhibit 1-H, in
whole or in part, and all necessary subsurface and surface appurtenances, for the transportation of
water and the operation and control of water facilities, and the cutting and clearing of trees, brush,
debris and other obstructions on the Permanent Easement Area that might interfere with the
operation and maintenance of the Permanent Easement; provided that the Districts shall, in so far
as practicable, restore the surface of the Permanent Easement Area, to at least the condition that
existed prior to any disturbance of the Permanent Easement Area by the Districts, by seeding all
disturbed areas with native grasses, and restoring fences, drain tile, irrigation systems, landscaping,
private roads and other improvements.
13. The Districts need to acquire the Temporary Easements, and the purpose of the
Temporary Easements is for accessing, surveying, locating, installing and constructing the water
pipeline(s), and all appurtenances thereto, within the Permanent Easement Area, and for all
purposes necessary and incidental thereto, including cutting and clearing trees, brush, debris and
other obstructions on the Temporary Easement Areas that interfere with the operation and
maintenance of the Temporary Easements.
14. The Districts sent an initial Notice of Intent to Acquire and Offer to Purchase to
K&M.
Permanent Easement and the Temporary Easement. K&M rejected that offer.
15. While not required to do so, the Districts increased their offer and sent an Amended
Notice of Intent to Acquire and Offer to Purchase to K&M. K&M also rejected that offer.
16. Representatives of the Districts and K&M met on multiple occasions over several
months to discuss compensation in light of engineering questions raised by K&M. Both parties
hired engineers to evaluate the engineering questions and exchanged the resulting engineering
reports.
17. Despite this extensive and lengthy negotiation, the parties have been unable to come
to an agreement regarding compensation.
5
DE 8457831.1