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HomeMy WebLinkAbout2024CV30118 - City v. Horsetooth Convenience Center, et al - 14 - Stipulation for Immediate Possession4/11/2024 Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\E-FILED\STIPULATION FOR IMMEDIATE POSSESSION-041124.DOCX DISTRICT COURT, LARIMER COUNTY, COLORADO 201 LaPorte Ave., Suite 100, Fort Collins, Colorado 80521 970-494-3500 ▲COURT USE ONLY▲ Petitioner: CITY OF FORT COLLINS, a Colorado home rule municipality, v. Respondents: HORSETOOTH CONVENIENCE CENTER, LLC, a Colorado limited liability company; 7-Eleven Inc., a Texas corporation; and IRENE E. JOSEY, in her official capacity as the COUNTY TREASURER OF LARIMER COUNTY. Attorneys for Petitioner: M. Patrick Wilson, No. 26303 Katharine J. Vera, No. 53995 Hoffmann, Parker, Wilson & Carberry, P.C. 511 16th Street, Suite 610 Denver, Colorado 80202 Telephone: 303-825-6444 E-mail: pwilson@hpwclaw.com; kjv@hpwclaw.com Case No.: 2024CV30118 Division: 4A STIPULATION FOR IMMEDIATE POSSESSION Petitioner City of Fort Collins (the "City"), Horsetooth Convenience Center, LLC ("HTCC") and 7-Eleven, Inc. ("7-Eleven") through their respective undersigned counsel of record, hereby enter into this Stipulation for Immediate Possession and agree as follows: 1. The City filed this condemnation action on February 12, 2024 to acquire certain real property rights as described in the Petition in Condemnation ("Subject Property"). 2. Service of process was completed in accordance with C.R.C.P. 4 on all named Respondents. HTCC and 7-Eleven entered appearances through counsel and are subject to the Court’s personal jurisdiction. 3. The Court has subject matter jurisdiction in this case and venue is proper in Larimer County, Colorado. 4. HTCC and 7-Eleven state, to the best of their knowledge and belief, that they are the only parties with a possessory interest in or to the Subject Property. DATE FILED: April 11, 2024 4:34 PM FILING ID: 5ED49BDB50F9B CASE NUMBER: 2024CV30118 2 4/11/2024 Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\E-FILED\STIPULATION FOR IMMEDIATE POSSESSION-041124.DOCX 5. All parties hereto stipulate to the City taking immediate possession of the Subject Property (as modified in paragraph 6(a) – (c), below), pursuant to C.R.S. § 38-1-105(6)(a), with all challenges other than the right to compensation being waived. Specifically, the parties hereto stipulate and agree as follows: a) Pursuant to C.R.S. § 38-1-105, upon entry of this Stipulation and upon the deposit in the Registry of this Court of the sum of Four Hundred and Ten Thousand, Five hundred and No/100ths Dollars ($410,500.00) by the City (the "Deposit"), the City may take legal possession of the Subject Property described in the Petition in Condemnation (as modified in paragraph 6(a) – (c), below). b) The City shall thereafter have the right to take, possess, use, and enjoy the Subject Property as against Respondents and their successors, assigns, heirs, devisees, personal representatives, lessees, guests or invitees, or any other person or persons claiming by, through, or under Respondents, and each of them, and all persons whomsoever claiming any right, title or interest in and to the Subject Property during the pendency of and until the final conclusion of this action, in a manner consistent with the scope of the property interests described in the Petition in Condemnation as modified in paragraph 6(a) – (c), below) and subject to the provisions as stated herein. c) By entering into this Stipulation, HTCC and 7-Eleven stipulate, acknowledge and agree that: i) the Court has jurisdiction over the subject matter of, and the parties to this action; ii) venue is proper; iii) the City has the lawful authority to condemn and take the Subject Property; iv) the taking of the Subject Property is necessary for a public use and purpose; v) the City has an immediate need for taking immediate possession of the Subject Property; vi) prior to the initiation of this action, there was a failure to agree on the compensation owing for the taking of the Subject Property despite good faith negotiations, and that further negotiations would have been futile; and vii) the Deposit is a sufficient deposit for purposes of taking immediate possession pursuant to C.R.S. § 38-1-105(6). d) By entering into this Stipulation, HTCC and 7-Eleven waive and discharge all challenges, objections and defenses to the taking of the Subject Property by the City, 3 4/11/2024 Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\E-FILED\STIPULATION FOR IMMEDIATE POSSESSION-041124.DOCX except for the retained right to seek compensation for the taking of the Subject Property. No party waives any claim or defense to compensation, damages, interest, costs or attorney fees by entering into this Stipulation. However, the only issue remaining for trial in this action is the amount of compensation owing for the taking of the Subject Property. e) By entering into this Stipulation, HTCC and 7-Eleven preserve all rights they have to seek to recover damages (if any) in the event the City abandons its acquisition, including, but not limited to, costs, interest and attorney fees. Nothing in this Stipulation shall affect any other rights that HTCC and 7-Eleven have to seek reimbursement for their attorney fees and reasonable and necessary costs and expenses. f) The parties agree that the date the deposit is made into the Registry of the Court shall constitute the date of value for purposes of this action. g) The amount of deposit described herein shall constitute payment by Petitioner towards the final award of compensation or any final settlement between the parties: i. If the final award, verdict or settlement of just compensation is greater than the deposit, then the deposit shall be and constitute a partial payment of the just compensation to be paid to the Respondents and others interested, if any, and shall be deducted by the Clerk of the Court from any award or verdict, or deducted by the City from the settlement amount agreed upon by the parties. ii. If the final award, verdict or settlement of just compensation is less than the amount of the deposit which has been withdrawn by any Respondent, or should this action otherwise result in an award or judgment for less than the total amount withdrawn, then any Respondent who has withdrawn funds from the Registry of the Court hereby agrees to refund to the City the difference between the amount of the deposit which has been withdrawn, and the amount of the award, verdict or settlement of just compensation. The amount to be refunded by each Respondent shall be in proportion to the amount of the deposit each such Respondent has withdrawn. h) Upon the date of the Deposit, the parcel the City is acquiring in fee, as identified in Exhibit 1 to the Petition in Condemnation, may become exempt from ad valorem real property taxation. 6. Additional terms of this Stipulation are as follows: a) All parties consent to an amendment to the Petition in Condemnation to replace the terms and conditions of PE-15 and PE-16 with the attached Exhibit 1; 4 4/11/2024 Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\E-FILED\STIPULATION FOR IMMEDIATE POSSESSION-041124.DOCX b) All other aspects of the Petition in Condemnation, including all legal descriptions (including those for PE-15 and PE-16) as well as the terms and conditions of other interests being acquired shall remain unaffected by this Stipulation; c) The City shall file a motion to amend the Petition in Condemnation within fourteen (14) days of the Court granting the proposed Order for Immediate Possession, however the right to possession stipulated to herein is based upon the modified terms and conditions of PE-15/PE-16 on the attached Exhibit 1; d) A deposit into the Court Registry by the City of $410,500.00, shall suffice for the City to take immediate possession and for purposes of C.R.S. § 38-1-105(6)(a); e) The parties hereto request that the Court vacate the immediate possession hearing, and order that all briefing, disclosures, discovery and other obligations contemplated in the recently filed Case Management Order for the Immediate Possession phase of the case be canceled; f) This Stipulation may be executed in counterparts, and copies of each shall be deemed an original, but all of which shall constitute the same instrument. Scanned or faxed signatures shall be deemed the equivalent of originals; and g) The parties have reviewed and agreed to the terms contained in the proposed Order for Possession, a copy of which is attached hereto. The parties request that the Court enter an Order in the form attached hereto. Wherefore, the parties hereto respectfully request the Court enter an Order in the form attached hereto. DATED this 11th day of April, 2024. HOFFMANN, PARKER, WILSON & CARBERRY, P.C. By: /s/ Katharine J. Vera Katharine J. Vera Attorneys for Petitioner City of Fort Collins ALDERMAN BERNSTEIN LLC By: /s/ Joshua Mangiagli Attorneys for Respondent 7-Eleven, Inc. 5 4/11/2024 Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\E-FILED\STIPULATION FOR IMMEDIATE POSSESSION-041124.DOCX DAVIS GRAHAM & STUBBS LLP By: /s/ Lindsey Folcik Attorneys for Respondent Horsetooth Convenience Center, LLC 6 4/11/2024 Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\E-FILED\STIPULATION FOR IMMEDIATE POSSESSION-041124.DOCX CERTIFICATE OF SERVICE I certify that on this 11th day of April 2024, I caused a true and correct copy of the foregoing STIPULATION FOR IMMEDIATE POSSESSION to be served via CCES, U.S mail and/or E-mail to the following: Sarah M. Kellner, No. 38111 Lindsey P. Folcik, No. 55167 DAVIS GRAHAM & STUBBS LLP 1550 17th Street, Suite 500 Denver, Colorado 80202 Telephone: 303.892.9400 Email: sarah.kellner@dgslaw.com lindsey.folcik@dgslaw.com Attorneys for Respondent Horsetooth Convenience Center, LLC 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 Attorneys for 7-Eleven, Inc. Frank N. Haug, Reg. No. 41427 Larimer County Attorney’s Office 224 Canyon Ave., Suite 200 Post Office Box 1606 Fort Collins, Colorado 80522 Telephone (970) 498-7450 Email: fhaug@larimer.org Attorneys for Larimer County Treasurer /s/ Katharine J. Vera