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HomeMy WebLinkAbout2023CV30659 - East Larimer County Water Dist. v. K & M Co., et al. - 029 - Stipulation for Limited Immediate Possession DISTRICT COURT, LARIMER COUNTY, COLORADO 201 LaPorte Avenue, Suite 100 Fort Collins, CO 80521 970-494-3500 ▲COURT USE ONLY▲ 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, et al. Attorneys for Petitioners East Larimer County Water District and North Weld County Water District: Jamie N. Cotter, No. 40309 Lauren A. Taylor, No 52452 SPENCER FANE LLP 1700 Lincoln Street, Suite 2000 Denver, Colorado 80203 Telephone: 303-839-3800 E-mail: jcotter@spencerfane.com; ltaylor@spencerfane.com Attorneys for Respondent K & M Company, LLLP Carrie S. Bernstein, Atty Reg. #34966 Joshua T. Mangiagli, Atty Reg. #52375 ALDERMAN BERNSTEIN LLC 101 University Blvd., Suite 350 Denver, Colorado 80206 Phone: 720-460-4200 E-mail: csb@ablawcolorado.com; jtm@ablawcolorado.com Case Number: 23CV30659 Division: 3B STIPULATION FOR LIMITED IMMEDIATE POSSESSION Petitioners, East Larimer County Water District (“ELCO”) and North Weld County Water District (“NWCWD”) (collectively, the “Districts”) and Respondent K&M Company, LLLP (“Respondent - Landowner”), by and through their respective counsel, stipulate and agree as follows: 1. The Districts intend to construct a waterline for the NEWT III Water Pipeline Project (“Project”). A portion of the water line will run over, under, on and across certain property of Respondent- Landowner described as within the NE 1/4 and SE 1/4 of Section 5, Township 7 North, Range 68 West of the 6th P.M., as further described in Exhibit 1 to the Petition in Condemnation (“Property”) (the “Petition”). Exhibit 1 is incorporated herein by reference. DATE FILED: March 14, 2024 12:59 PM FILING ID: 717D65853A687 CASE NUMBER: 2023CV30659 2 2. In connection with the construction of the Project, the Districts desire to acquire from Respondent-Landowner a permanent easement, described and depicted in Exhibit 2 to the Petition, and a temporary construction easement described and depicted in Exhibit 3 to the Petition (jointly, “Easements”) over, under, on and across the portions of the Property that are encumbered by the Easements (jointly, “Easement Areas”). Exhibit 2 and Exhibit 3 are incorporated herein by reference. 3. The Districts filed the Petition seeking to acquire the Easements in Larimer County District Court at case number 2023CV30659 (“Lawsuit”). The Districts are currently seeking possession of the Easement Areas in the Lawsuit. 4. As a preliminary matter, Respondent-Landowner has agreed to grant the Districts possession of a limited subsection of the Easement Areas as depicted in Exhibit A (“Limited Easement Areas”) in accordance with the terms of this Stipulation for Limited Immediate Possession (“Stipulation”), which shall have the same effect as an order for immediate possession of the Limited Easement Areas entered by a court pursuant to § 38-1-105(6), C.R.S., and shall entitle the Districts to all rights that the Districts would have under such an order for immediate possession for the Limited Easement Areas, subject only to the terms of this Stipulation. Exhibit A is attached hereto and incorporated herein by reference. 5. The Districts shall deposit the sum of fifteen thousand dollars ($15,000) into the Registry of this Court (the “Deposit”). Upon the date of the Deposit, the Districts may take possession of the Limited Easement Areas subject to the terms of this Stipulation. The Deposit is not linked to any agreed-upon value of the Limited Easement Areas. The Parties reserve all rights to assert their respective positions regarding the valuation of the Limited Easement Areas and the Easement Areas in the Lawsuit. Notwithstanding, the Parties have agreed that the Deposit shall be deemed a sufficient sum for the Districts to possess the Limited Easement Area. 6. The amount of Deposit described herein shall constitute payment by the Districts towards the final award of compensation or any final settlement between the parties: a. If the final award, verdict, or settlement of just compensation in this action is greater than the Deposit, then the Deposit shall be and constitute a partial payment of the just compensation to be paid to Respondent-Landowner and shall be deducted by the Clerk of the Court from any award or verdict, or deducted by the Districts from any settlement amount agreed upon by the parties. b. If the final award, verdict, or settlement of just compensation is less than the amount of the Deposit which has been withdrawn by Respondent-Landowner, or should this action otherwise result in an award or judgment for less than the total amount withdrawn, then Respondent-Landowner hereby agrees to refund to the Districts the difference between the amount of the Deposit which has been withdrawn, and the amount of the award, verdict or settlement of just compensation with appropriate interest, if any. 7. The Districts have no objection to the Respondent-Landowner withdrawing 100% of the Deposit from the Court Registry in accordance with the requirements identified in C.R.S. § 38-1-105(6)(b), subject to any amounts claimed by other named respondents in the Lawsuit. Until the Court issues such further withdrawal orders, the funds deposited by the Districts shall be placed by the Registry of this District Court in an interest-bearing account. 8. The area identified as “PE” on Exhibit A is hereinafter referred to as the “Limited PE Area.” The Districts’ right to possess and use the Limited PE Area is limited to the uses set forth in paragraphs 13 and 14 of the Petition. 3 9. Respondent-Landowner retains the right to use the Limited PE Area as set forth in paragraph 14 of the Petition. 10. The area identified as “TCE” on Exhibit A is hereinafter referred to as the “Limited TCE Area.” The Districts’ right to possess and use the Limited TCE Area is limited to the following: a. Accessing, surveying, locating, installing, and constructing one water pipeline, and all appurtenances thereto, within the Limited PE Area, and for all purposes necessary and incidental thereto, including cutting and clearing trees, brush, debris, and other obstructions on the Limited TCE Area that interfere with the operation and maintenance of the Limited TCE Area. b. The Districts’ right to possess and use the Limited TCE Area shall terminate 120 days after completion of the portion of the Project that crosses over the Limited Easement Areas, but in no event later than one (1) year after the Deposit or such later time as the parties may mutually agree (“Limited TCE Termination”). c. Respondent-Landowner retains the right to use the Limited TCE Area for all uses that do not unreasonably interfere with the Districts’ use of the Limited TCE Area. d. Prior to the Limited TCE Termination, the Districts, at their cost and expense, shall restore the surface of the Limited Easement Areas to a condition that is at least equal to the condition that existed prior to any disturbance by the Districts. 11. By entering this Stipulation, the Respondent-Landowner does not relinquish its rights to challenge the Districts’ entitlement to use and possess the remaining Easement Areas. As such, the Respondent-Landowner retains the right to challenge the Districts’ authority to condemn, the necessity of the acquisition, the public purpose of the Project for which the Easements in the remaining Easement Areas are being acquired, the sufficiency of the Districts’ good faith negotiations, and the jurisdiction of this Court to enter an Order for Immediate Possession of the remaining Easement Areas in the Districts’ favor. 12. The Respondent-Landowner also preserves all rights pertaining to damages (if any) in the event the Districts abandon their acquisition, including, but not limited to, costs, interest, and attorney fees. The Respondent-Landowner preserves all rights and issues relative to other named respondents in the Lawsuit. Nothing in this Stipulation shall affect any other rights the Respondent-Landowner has to seek reimbursement for its attorney fees and reasonable and necessary costs and expenses. 13. By entering this Stipulation, neither party waives or relinquishes any rights it may have to raise any issues pertaining to just compensation at the time of the valuation trial. 14. The date of value to determine the amount of compensation required to be paid by the Districts for the acquisition of the Limited Easement Areas and the Easement Areas, including damages and benefits, if any, shall be the earliest of the following dates: (1) the date the Districts deposit funds sufficient to possess the Easement Areas or (2) the date the Parties reach a negotiated settlement for the purchase of the Easements. 15. This Stipulation shall apply only to possession of the Limited Easement Areas by the Districts for the purpose of constructing a portion of the Project. This Stipulation shall have no application or relevancy to the determination of the Districts need for immediate possession for the remaining Easement Areas, the value of the Easements, or the amount to be paid by the Districts for the acquisition of the 4 Easements, except that the delivery of the Deposit shall be treated as though a court had determined that the Deposit is a sufficient sum to pay the compensation of the Limited Easement Areas when ascertained under C.R.S. § 38-1-105(6)(a). The Deposit may not be used in the Lawsuit as evidence of the value of the Easements, or damages, or for any other purpose, except for the purpose of enforcing the terms of this Stipulation. Respectfully submitted this 14th day of March 2024. SPENCER FANE LLP s/ Jamie N. Cotter Jamie N. Cotter, Esq., No. 40309 Lauren A. Taylor, Esq., No. 52452 ATTORNEYS FOR PETITIONERS ALDERMAN BERNSTEIN LLC s/ Joshua T. Mangiagli Carrie S. Bernstein, Esq, No. 34966 Joshua T. Mangiagli, Esq., No. 52375 ATTORNEYS FOR RESPONDENT K&M COMPANY, LLLP CERTIFICATE OF SERVICE I certify that on March 14, 2024, I caused a true and accurate copy of the foregoing to be filed and served via the Court’s electronic service and filing system. s/ Kayla Dominguez Kayla Dominguez Legal assistant to Lauren A. Taylor