HomeMy WebLinkAbout2024CV30118 - City v. Horsetooth Convenience Center, et al - 14 - Stipulation for Immediate Possession4/11/2024
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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
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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,
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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;
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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.
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DAVIS GRAHAM & STUBBS LLP
By: /s/ Lindsey Folcik
Attorneys for Respondent Horsetooth
Convenience Center, LLC
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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