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HomeMy WebLinkAbout2023CV30659 - East Larimer County Water Dist. v. K & M Co., et al. - 43 - Stipulated Motion for Entry of Rule and OrderDISTRICT COURT, LARIMER COUNTY, COLORADO Court Address: 201 LaPorte Avenue, Suite 100 Fort Collins, Colorado 80521 Phone Number: (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, #40309 Lauren A. Taylor, #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, #34966 Joshua T. Mangiagli, #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: 2023CV30659 Division: 3B STIPULATED MOTION FOR ENTRY OF RULE AND ORDER DATE FILED: August 1, 2024 5:07 PM FILING ID: 6B722859AF582 CASE NUMBER: 2023CV30659 2 Petitioners East Larimer County Water District and North Weld County Water District (jointly, the “Districts”) and Respondent K&M Company, LLLP (“K&M”), by and through their counsel, submit this Stipulated Motion for Entry of Rule and Order (“Stipulated Motion”) and request the Court to enter the Rule and Order in the form submitted herewith. In support thereof, the parties state as follows: 1. C.R.C.P. 121 § 1-15(8) Certification: Counsel for K&M has stipulated to this motion. The remaining Respondents have either disclaimed or entered into a stipulation regarding their interests in the easements the Districts seek to acquire in this action. 2. K&M owns the property that is within the County of Larimer, State of Colorado and is more particularly described in Exhibit A, attached to the Rule and Order (“Property”). 3. K&M and the Districts have agreed to settle the amount of just compensation for the Districts’ acquisition of (i) a permanent easement (“Permanent Easement”) over, under, on and across the portion of the Property that is described and depicted in Exhibit B attached to the Rule and Order (“Permanent Easement Area”) subject to the terms and conditions therein, and (ii) a temporary construction easement (“Temporary Easement”) over, under, on and across the portion of the Property that is described and depicted in Exhibit C attached to the Rule and Order (“Temporary Easement Area”) subject to the terms and conditions therein. The Permanent Easement and Temporary Easement are jointly referred to as the “Easements.” 4. The parties agree that the Districts’ acquisition is for and limited to the uses provided in the Amended Petition in Condemnation (“Amended Petition”). The Permanent Easement, as it relates to the installation, construction, use, operation, maintenance, inspection, repair, alteration, removal, and replacement of one or more buried water pipelines, shall be at 3 the depth and location indicated in the construction plans shown in Exhibit E attached to the Rule and Order. 5. K&M agrees that the total sum of One Hundred Eighty-Five Thousand Seven Hundred Eighty-Six and 00/100 Dollars ($185,786) (“Compensation”) represents the final and full compensation to be paid by the Districts for the taking of the Easements. The Compensation represents full satisfaction and payment of the just compensation to be paid to K&M for the taking of the Easements, including, without limitation, the value of the Easements, any damages or benefits to the remaining property, interest, costs, attorney fees and expenses of any kind. 6. The Districts previously deposited into the Registry of the Court the sum of One Hundred Fifteen Thousand and 00/100 Dollars ($115,000.00). The Districts will deposit the remaining balance due into the Registry of the Court in the amount of Seventy Thousand Seven Hundred Eighty-Six and 00/100 Dollars ($70,786.00) within 14 days of the Court’s entry of the Rule and Order. 7. As indicated by the signature of their counsel of record below, K&M stipulates to this Stipulated Motion and the form of the Rule and Order submitted with this Stipulated Motion. 4 Respectfully submitted this 1st day of August, 2024. SPENCER FANE LLP s/ Lauren A. Taylor Jamie N. Cotter, #40309 Lauren A. Taylor, #52452 Attorneys for Petitioners East Larimer County Water District and North Weld County Water District ALDERMAN BERNSTEIN LLC s/ Joshua T. Mangiagli Carrie S. Bernstein, #34966 Joshua T. Mangiagli, #52375 Attorneys for Respondent K&M Company, LLLP CERTIFICATE OF SERVICE I certify that on August 1, 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/ Morgan L. Bir Morgan L. Bir, Paralegal Legal Description of Property A PART OF THE NE 1/4 OF SECTION 5, TOWNSHIP 7 NORTH, RANGE 68 WEST OF THE 6TH P.M., COUNTY OF LARIMER, STATE OF COLORADO, DESCRIBED AS FOLLOWS: COMMENCING AT THE NW CORNER OF SAID 1/4 SECTION; THENCE EAST 1756.1 FEET; THENCE SOUTH 2610 FEET; THENCE WEST 1756.1 FEET; THENCE NORTH 2610 FEET TO THE PLACE OF BEGINNING; EXCEPT RIGHT OF WAY DEEDED BY QUIT CLAIM DEED RECORDED IN BOOK 171 AT PAGE 454; EXCEPT RIGHT OF WAY FOR SMALL LATERAL DITCH AS NOW CONSTRUCTED AND COUNTY ROAD; ALSO, ALL THAT PORTION OF LAND IN THE SE 1/4 OF SECTION 5, TOWNSHIP 7 NORTH, RANGE 68 WEST OF THE 6TH P.M., COUNTY OF LARIMER, STATE OF COLORADO, LYING ABOVE THE LARIMER & WELD CANAL; ALSO A PARCEL OF LAND IN THE SW 1/4 OF THE NE 1/4 AND THE NW 1/4 OF THE SE 1/4 OF SECTION 5, TOWNSHIP 7 NORTH, RANGE 68 WEST OF THE 6TH P.M., COUNTY OF LARIMER, STATE OF COLORADO, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT 30 FEET EAST OF THE CENTER OF SAID SECTION 5; THENCE SOUTH 390 FEET PARALLEL TO THE NORTH AND SOUTH 1/4 LINE TO THE RIGHT OF WAY OF THE LARIMER & WELD CANAL; THENCE EASTERLY ALONG RIGHT OF WAY OF SAID CANAL 474 FEET TO A POINT 37 1/2 FEET WEST OF CENTER LINE OF THE NO. 8 OUTLET DITCH; THENCE N 40 DEGREES 30' W, 740 FEET AND PARALLEL TO THE OUTLET DITCH TO A POINT 30 FEET EAST OF THE NORTH AND SOUTH 1/4 LINE; THENCE SOUTH PARALLEL TO 1/4 LINE 255 FEET TO POINT OF BEGINNING; ALSO COMMENCING AT THE NE CORNER OF SAID SECTION 5; THENCE SOUTH 2610 FEET; THENCE WEST 883.9 FEET; THENCE NORTH 2610 FEET; THENCE EAST 883.9 FEET TO PLACE OF BEGINNING; SUBJECT TO RESERVATION BY ED KELLER OF OIL, GAS AND OTHER MINERALS AS CONTAINED IN DEED FROM HIM TO GRANTORS RECORDED IN BOOK 1752 AT PAGES 66-67, LARIMER COUNTY RECORDS; EXCEPT THAT PORTION CONVEYED TO THE CITY OF FORT COLLINS BY DEED RECORDED AT RECEPTION NO. 88000163; AND EXCEPT RIGHT OF WAY FOR TIMBERLINE ROAD. DATE FILED: August 1, 2024 5:07 PM FILING ID: 6B722859AF582 CASE NUMBER: 2023CV30659 Permanent Non-Exclusive Water Pipeline Easement 1 PERMANENT NON-EXCLUSIVE WATER PIPELINE EASEMENT EAST LARIMER COUNTY WATER DISTRICT, a quasi-municipal corporation and a political subdivision of the State of Colorado, whose address is 232 South Link Lane, Fort Collins, Colorado 80524, and the NORTH WELD COUNTY WATER DISTRICT, a political subdivision of the State of Colorado, whose address is 33247 Highway 85, Lucerne, Colorado, 80646 (jointly, the “Districts”) hereby acquire from K&M COMPANY, LLLP, a limited liability limited partnership, whose address is 1230 Country Club Rd., Fort Collins, CO 80524 (the “Landowner”) a perpetual non-exclusive easement (the “Permanent Easement”) as described and depicted in Exhibit 1 attached hereto and incorporated herein by this reference (the “Permanent Easement Area”) under the following terms and conditions: 1. Under the Permanent Easement, the Districts and its officers, agents, employees, designees, contractors, guests, and invitees, and all those acting by or on behalf of the District, shall have the following rights: a. 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 (1) or more buried water pipelines at the depth and location shown on the Construction Plans attached as Exhibit 2 hereto, 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. 2. Landowner shall retain the right to use the Permanent Easement Area for all uses except the following uses, which would unreasonably interfere with the Districts’ rights under the Permanent Easement: a. Construct or allow the construction of any buildings or other structures on or under the Permanent Easement Area, except Landowner may, within an area no more than three (3) feet from either edge of the Permanent Easement Area: i. Install an irrigation system (including associated sprinklers, sprinkler heads, emitters, and valves) within the Permanent Easement Area, including electrical wire and cable not exceeding two (2) inches in diameter, provided that the system is not installed at a depth that exceeds EXHIBIT B 1 of 14 DATE FILED: August 1, 2024 5:07 PM FILING ID: 6B722859AF582 CASE NUMBER: 2023CV30659 Permanent Non-Exclusive Water Pipeline Easement 2 three (3) feet from the finished surface level of the Permanent Easement Area; and/or ii. Install removable and replaceable improvements such as benches, trash receptacles, monuments, lights, mailbox kiosks, signs, and retaining walls. b. Impound water or other substances in, on, or over the Permanent Easement Area; c. Plant trees, shrubs, or other landscaping of any type that will exceed three (3) feet in height at mature growth within the Permanent Easement Area; d. Alter the ground level within the Permanent Easement Area that modifies the finished grade within the Permanent Easement Area by more than two (2) feet of fill or a cut that reduces the fill over the top of the water pipeline to less than four and one-half (4.5) feet; e. Store or allow the storage of any equipment, materials or any other items on or across the Permanent Easement Area that unreasonably interfere with the Districts’ use of the Permanent Easement or ability to access their infrastructure within the Permanent Easement Area for the purposes described above. f. Store or dispose of any dangerous, toxic, or hazardous substance on or under the Permanent Easement Area; g. Install, alter, or replace any fence on the Permanent Easement Area, except at near right angles to the water pipeline(s) and provided that the Districts may require gates to be installed to provide the Districts access through any fences that cross the Permanent Easement Area; h. Grant subsurface or surface easements within the Permanent Easement Area to other utilities, cable service providers or any other entity for utilities and/or lines other than for the use of subsurface utilities that cross the water pipeline at near right angles and not more than thirty (30) degrees from perpendicular to the pipeline with a minimum two (2) feet of clearance between said utilities and the outside diameter of the water pipeline and in conformance with applicable industry standards. Utilities include, but are not limited to, water (potable, stormwater, and wastewater), gas, electric, and telecommunications (including fiber optic lines); and i. Paving of or the construction of any paved roadways, parking areas, paths or recreation areas within the Permanent Easement Area, except that after the EXHIBIT B 2 of 14 Permanent Non-Exclusive Water Pipeline Easement 3 Districts have completed the construction of the pipeline, the owner may: i. Construct not more than two paved roadway crossings on the Permanent Easement Area, including sub-excavation preparation, concrete curb/gutter, sidewalk, signage, striping, and streetlights (collectively, the “Roadways”), provided that all of the following conditions for all portions/components of the Roadways are met: (i) the Roadways are required by any government agencies, laws and regulations for the development of the Property; (ii) the Roadways cross the Permanent Easement Area at near right angles and not more than thirty (30) degrees from perpendicular to the pipeline; and (iii) the finished grade of the Roadways have at least four and one-half (4.5) feet of cover and not more than seven (7) feet of cover over the top of the water pipeline; and/or ii. Construct gravel trails and bike paths on the Permanent Easement Area provided that such are installed with the centerline of the trail or path a maximum of five (5) feet from either edge of the Permanent Easement and, if the trails and bike paths cross the pipeline, the crossing is at near right angles to the pipeline and no more than thirty (30) degrees from perpendicular to the pipeline, and the finished grade of any crossing shall have no less than four and one-half (4.5) feet of cover over the top of the pipeline. j. Cutting and clearing trees, brush, debris, and other obstructions on the Permanent Easement that might interfere with the operation and maintenance of the Districts’ activities and facilities within the Permanent Easement Area. 3. No Termination: The Permanent Easement shall not be terminated or extinguished by nonuse or abandonment. 4. Governing Law; Enforcement: The Permanent Easement is subject to and is governed by the laws of the State of Colorado. Enforcement of the Permanent Easement may be by legal proceedings against any party violating any restriction, covenant, condition, or agreement herein contained, either to restrain or enjoin such violation, obtain specific performance, or recover damages. 5. No Rights to the Public: The Permanent Easement is not intended to, nor will it create any rights in the public to the Permanent Easement Area. 6. LWIC Prior Easement: The Larimer and Weld Irrigation Company (“LWIC”) may have an interest in the Permanent Easement Area by virtue of a prescriptive or statutory ditch easement for the width of the ditch and sufficient lands on each side of the ditch EXHIBIT B 3 of 14 Permanent Non-Exclusive Water Pipeline Easement 4 as are reasonably necessary to maintain, repair, operate and reasonably enjoy the use of such easement (the “LWIC Easement”). The Districts’ rights under the Permanent Easement are subject to the LWIC Easement by LWIC. 7. No Waiver: Failure of any party to exercise any of its rights hereunder shall not constitute a waiver or abandonment thereof. The waiver by any party of a breach of any provision of the Permanent Easement shall not be deemed a continuing waiver or a waiver of any subsequent breach of the same or any other provision hereof. 8. Modifications: The Permanent Easement may be modified or amended only in writing, duly executed and acknowledged by the Districts and the Landowner, and recorded in the real property records of Larimer County, Colorado. 9. Entire Agreement: The Permanent Easement, subject to the Districts’ rules, regulations, standards and resolutions which are not in conflict with provisions hereof, contains the entire agreement relating to the rights herein granted and the obligations hereunder assumed. In the event any term or provision of the Permanent Easement shall be held to be unenforceable for any reason whatsoever by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other term or provision hereof, and such provision shall be modified (to the extent possible) to match the parties’ intent. 10. Runs with the Land: The Permanent Easement, the rights and obligations of the parties, and the terms, rights, conditions, restrictions, and limitations of the Permanent Easement, shall run with and burden the Permanent Easement Area, and shall be binding upon and inure to the benefit of the Landowner and the Districts and all of the persons claiming an interest in the Permanent Easement Area, or any portion thereof, through the parties hereto, including the respective heirs, successors, and permitted assigns of the parties. 11. Landowner warrants and represents that it is the fee owner of the Easement Area and has the right to grant the Easement and rights contained herein. Landowner has no actual knowledge of any encumbrances, leases, mortgages, or liens, except those previously disclosed by the Districts or the Landowner. 12. The Permanent Easement incorporates all agreements between the parties as to the subject matter of the Permanent Easement and no prior representations or statements, verbal or written, shall modify or supplement the terms of the Permanent Easement. 13. The Permanent Easement shall be recorded, at the Districts’ sole cost, in the office of the County Clerk and Recorder’s Office in which the Permanent Easement is located. EXHIBIT B 4 of 14 Permanent Non-Exclusive Water Pipeline Easement 5 EXHIBIT ‘1’ TO PERMANENT NON-EXCLUSIVE WATER PIPELINE EASEMENT Legal Description and Depiction of Permanent Easement EXHIBIT B 5 of 14 EXHIBIT 2 EXHIBIT 2 EXHIBIT 2 EXHIBIT 2 Permanent Non-Exclusive Water Pipeline Easement 6 EXHIBIT ‘2’ TO PERMANENT NON-EXCLUSIVE WATER PIPELINE EASEMENT Construction Plans EXHIBIT B 10 of 14 EXHIBIT B 11 of 14 EXHIBIT B 12 of 14 Station 31+50 Bottom of Storm Sewer = 4981.00 Top of Water Line = 4978.5 2.5' Minimum 50 ft Hold elevation to Station 31+75 Station 31+50 Future Storm Sewer Crossing NEWT III Water Line Lowering Summary: - Crossing Location at Station 31+50 - Bottom of Storm Sewer Elev = 4981.00 - Top of Waterline = 4978.50 - Clearance between NEWT III Waterline and Future Storm Sewer Crossing = 2.5' - Lowering between station 31+25 to 31+75 DATE FILED: April 23, 2024 8:18 AM FILING ID: 9B37584C22047 CASE NUMBER: 2023CV30659 EXHIBIT B 13 of 14 EXHIBIT B 14 of 14 (06/18/09) 1 TEMPORARY CONSTRUCTION EASEMENT EAST LARIMER COUNTY WATER DISTRICT, a quasi-municipal corporation and a political subdivision of the State of Colorado, whose address is 232 South Link Lane, Fort Collins, Colorado 80524, and the NORTH WELD COUNTY WATER DISTRICT, a political subdivision of the State of Colorado, whose address is 33247 Highway 85, Lucerne, Colorado, 80646 (jointly, the “Districts”) hereby acquire from K&M COMPANY, LLLP, a limited liability limited partnership, whose address is 1230 Country Club Rd., Fort Collins, CO 80524 (the “Landowner”) a temporary construction easement (the “Temporary Easement”) as described and depicted in Exhibit 1 attached hereto and incorporated herein by this reference (the “Temporary Easement Area”) under the following terms and conditions. 1. Under the Temporary Easement, the Districts and its officers, agents, employees, designees, contractors, guests, and invitees, and all those acting by or on behalf of the District, shall have the following rights: Accessing, surveying, locating, installing, and constructing the water pipeline(s), and all appurtenances thereto within the Permanent Easement Area under the Permanent Easement (recorded contemporaneously with the Temporary Easement), and for all purposes necessary and incidental thereto, including cutting and clearing trees, brush, debris, and other obstructions on the Temporary Easement Area that interfere with the operation and maintenance of the Temporary Easement, subject to the following requirements: i. The Districts right to possess and use the Temporary Easement Area will terminate on the last day of construction activities for the portion of the project within the Temporary Easement Area but in no event later than June 23, 2024; and ii. Prior to the termination of the Temporary Easement, the Districts, at their sole cost and expense, shall restore the surface of the Temporary Easement Areas to a condition that is at least equal to the condition that existed prior to any disturbance by the Districts. 2. Governing Law; Enforcement: This Temporary Easement is subject to and is governed by the laws of the State of Colorado. Enforcement of the Temporary Easement may be by legal proceedings against any party violating any restriction, covenant, condition, or agreement herein contained, either to restrain or enjoin such violation, obtain specific performance, or recover damages. 3. No Rights to the Public: The Temporary Easement is not intended to, nor will it create any rights in the public to the Temporary Easement Area. EXHIBIT C 1 of 7 DATE FILED: August 1, 2024 5:07 PM FILING ID: 6B722859AF582 CASE NUMBER: 2023CV30659 (06/18/09) 2 4. LWIC Prior Easement: The Larimer and Weld Irrigation Company (“LWIC”) may have an interest in the Temporary Easement Area by virtue of a prescriptive or statutory ditch easement for the width of the ditch and sufficient lands on each side of the ditch as are reasonably necessary to maintain, repair, operate and reasonably enjoy the use of such easement (the “LWIC Easement”). The Districts’ rights under the Temporary Easement are subject to the LWIC Easement by LWIC. 5. No Waiver: Failure of any party to exercise any of its rights hereunder shall not constitute a waiver or abandonment thereof. The waiver by any party of a breach of any provision of the Temporary Easement shall not be deemed a continuing waiver or a waiver of any subsequent breach of the same or any other provision hereof. 6. Modifications: The Temporary Easement may be modified or amended only in writing, duly executed, and acknowledged by the Districts and the Landowner. 7. Entire Agreement: The Temporary Easement, subject to the Districts’ rules, regulations, standards, and resolutions which are not in conflict with provisions hereof, contains the entire agreement relating to the rights herein granted and the obligations hereunder assumed. In the event any term or provision of the Temporary Easement shall be held to be unenforceable for any reason whatsoever by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other term or provision hereof, and such provision shall be modified (to the extent possible) to match the parties’ intent. 8. Runs with the Land: The Temporary Easement, the rights and obligations of the parties, and the terms, rights, conditions, restrictions, and limitations of the Temporary Easement, shall run with and burden the Temporary Easement Area, and shall be binding upon and inure to the benefit of the Landowner and the Districts and all persons claiming an interest in the Temporary Easement Area, or any portion thereof, through the parties hereto, including the heirs, executors, personal representatives, successors, and permitted assigns of the parties. 9. Landowner warrants and represents that it is the fee owner of the Easement Area and has the right to grant the Easement and rights contained herein. Landowner has no actual knowledge of any encumbrances, leases, mortgages, or liens, except those previously disclosed by the Districts or the Landowner. 10. The Temporary Easement incorporates all agreements between the parties as to the subject matter of the Temporary Easement and no prior representations or statements, verbal or written, shall modify or supplement the terms of the Temporary Easement. The Temporary Easement shall be recorded, at the Districts’ sole cost, in the office of the County Clerk and Recorder’s Office in which the Temporary Easement is located. EXHIBIT C 2 of 7 (06/18/09) 3 EXHIBIT ‘1’ TO TEMPORARY CONSTRUCTION EASEMENT Legal Description and Depiction of Temporary Construction Easement EXHIBIT C 3 of 7 EXHIBIT 3 㐠潦‷ EXHIBIT 3 㔠潦‷ EXHIBIT 3 㘠潦‷ EXHIBIT 3 㜠潦‷ DISTRICT COURT, LARIMER COUNTY, COLORADO 201 LaPorte Avenue, Suite 100 Fort Collins, Colorado 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, a Colorado limited liability limited partnership, et al. Attorneys for Petitioners 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 Fax: 303-839-3838 E-mail:jcotter@spencerfane.com; ltaylor@spencerfane.com Attorney for Petitioner East Larimer County Water District: Tim Goddard Goddard Law Office, PLLC 210 E. 29th Street Loveland, CO 80538 Telephone: 970-493-5070 E-mail: timg@hfglaw.com Attorneys for Respondent City of Fort Collins: Ryan Malarky, Reg. No. 41577 Fort Collins City Attorney’s Office 300 Laporte Avenue Fort Collins, CO 80521 Telephone: 970-416-4328 E-mail: rmalarky@fcgov.com Case Number: 23CV30659 Division: 3B STIPULATION REGARDING IMMEDIATE POSSESSION AND CITY OF FORT COLLINS’S PROPERTY INTEREST AND FACILITIES DATE FILED: January 19, 2024 11:06 AM FILING ID: 29A24E6358546 CASE NUMBER: 2023CV30659 EXHIBIT D DATE FILED: August 1, 2024 5:07 PM FILING ID: 6B722859AF582 CASE NUMBER: 2023CV30659 2 Petitioners East Larimer County Water District (“ELCO”) and North Weld County Water District (“North Weld”) (collectively, the “Districts”), and Respondent City of Fort Collins (the “City”) (all collectively, the “Parties”), by and through their respective counsel of record, stipulate and agree to the Districts’ possession, use and acquisition of the Districts’ Easements (defined below) upon the following terms and conditions. 1. The City is the owner of a water pipeline easement recorded in the public records of the Larimer County Clerk and Recorder on August 14, 1985, at Reception No. 85040103 (“City’s Easement”) for the purposes stated therein and within which the City operates and maintains a water pipeline (“City’s Infrastructure”). 2. The Districts seek to acquire a permanent water pipeline easement and temporary construction easement which shall be recorded in the public records of the Larimer County Clerk and Recorder across certain property located in Larimer County, Colorado and more particularly described in Exhibit 2 and Exhibit 3 attached to the Districts’ Petition in Condemnation (collectively, the “Districts’ Easements”), for the purposes stated therein for the installation of a 42-inch treated water pipeline (“Districts’ Infrastructure”). 3. The Districts’ Easements and the Districts’ Infrastructure will encroach upon that portion of the City’s Easement and City’s Infrastructure shown on Exhibit A attached hereto (“Encroachment Area”). 4. The Districts and the City have reviewed the construction plans for the construction of the Districts’ Infrastructure, which plans are shown on Exhibit B attached hereto (“Plans”). 5. The City has determined that the Districts’ Easements will not unreasonably interfere with the City’s use of the City’s Easement, provided that the Districts’ Infrastructure is constructed and installed according to the Plans and the Districts’ Infrastructure is subject and subordinate to the City’s Easement, and further pursuant to the terms and conditions to this Stipulation. 6. The City hereby consents to the Districts’ encroachment within the Encroachment Area provided that the Districts install or construct the Districts’ Infrastructure in substantial conformance with the Plans and the use of the Districts’ Easements are limited to the extent provided in the Districts’ Easements, both of which are subject and subordinate to the City’s Easement. This Stipulation shall not be deemed as a conveyance from the City to the Districts of any interest in the real property where the Parties’ easements are located. The Districts will obtain the Easements from the fee owner of the property identified in this case by entering into a separate agreement with the owner of said property or by a rule and order by the Court. 7. The Districts shall not encroach upon or use any portion of the City’s Easement outside the Encroachment Area. If the Districts cause any damage to the City’s Easement or the City’s Infrastructure outside the Encroachment Area or the City’s Infrastructure at any location, the Districts at their sole cost and expense, and as soon as practicable, shall repair such damage as reasonably necessary to return the City’s Easement or the City’s Infrastructure EXHIBIT D 3 to a state that is at least equal to the state that existed prior to the damage, provided that, the City, in an emergency situation, may repair any such damage without prior notice, and the Districts shall reimburse the City for the reasonable cost thereof upon invoice by the City. 8. The Districts understand that the City’s Infrastructure is the main waterline serving the Anheuser-Busch brewery. Prior to the commencement of construction and throughout the construction of the Districts’ Infrastructure within the Encroachment, the Districts will use best efforts to coordinate with the City the construction activities that may impact the City’s Infrastructure, including but not limited to a minimum of two (2) weeks’ prior written notice of said activities, to minimize potential impacts to the City’s ability to deliver water to Anheuser-Busch and any other impacted customers. 9. The Districts shall maintain all clearances required by law and obey all City written rules and regulations as well as all reasonable written and verbal instructions related to safety during the Districts’ presence on the Encroachment Area. Any damage caused by the Districts to the City’s Infrastructure shall, at the City’s option, be paid for or repaired at the expense of the Districts. The Districts shall provide a minimum of two (2) weeks’ advance written notice to the City prior to any work in the Encroachment Area, but this requirement shall not apply in the case of emergency work. These provisions shall also apply to any other work involving construction, maintenance, operation, repair, inspection, removal, replacement, or relocation of the Districts’ Infrastructure within the Encroachment Area. Notwithstanding the foregoing, the City will have no duty to monitor any activities conducted by the Districts. Any monitoring by the City of construction or other activities conducted by the Districts on or near the Encroachment Area is for the sole benefit of the City and shall not create any duty, obligation or liability to the Districts or any other person. 10. The Districts and City acknowledge their respective easements and infrastructure are necessary for a public use and, as such, the parties will consider the existence of the respective easements and infrastructure in future construction projects and work in good faith to try and resolve any engineering conflicts or concerns which may arise. All Parties agree they shall not seek to extinguish, adversely impact, or impair the other Parties’ easements or the public project for which the easements are acquired. The City commits to replace or repair the City Infrastructure and to design and construct future City improvements in, on, under or across the portion of the Encroachment where the District's Infrastructure are located in a manner so as to protect in place and minimize any impact or interference with the Districts’ Infrastructure. 11. The Districts have been fully advised by the City that the City’s Infrastructure is subject to cathodic protection by rectifier and related anode beds, which may have an impact on the Districts’ cathodic protection systems for the Districts’ Infrastructure or on the Districts’ Infrastructure itself. The City shall not be liable for stray current or interfering signals induced in the Encroachment as a result of the City operating its cathodic protection system. The Districts assume all risk pursuant to the provisions of this Stipulation of the existence and nature of the City’s Infrastructure and the potential risk involved within the Encroachment. EXHIBIT D 4 12. Each party is responsible for its own negligence and that of its officers and employees. However, nothing herein is intended as a waiver of the rights and privileges provided by the Colorado Governmental Immunity Act, C.R.S. Section 24-10-101 et seq., as now in effect or hereafter amended. Any Party contracting for work to be done in the Encroachment shall require its contractors to maintain a comprehensive policy of general liability insurance in an amount not less than $1,000,000, naming the contracting Party as insured and the other Party as an additional insured. 13. The rights and obligations of this Stipulation shall be appurtenant to and deemed to run with the Property. 14. The Districts agree to ensure that any order, stipulation, or voluntary agreement conveying, granting, or establishing the Districts’ Easements in and to the Districts will specificall y include the terms and conditions set forth in this Stipulation. Should the Districts fail to do so, the Districts shall take all steps necessary to amend such order, stipulation, or voluntary agreement to include such terms and conditions. 15. The City does not object to the request by the Districts for immediate possession of the Districts’ Easements and to entry of a Final Rule and Order conveying the Districts’ Easements to the Districts, provided that the terms and conditions of this Stipulation are incorporated into and made part of the Court’s Order of Possession and Final Rule and Order. 16. The Districts agree that they shall provide the City’s attorney of record with a final, recorded version of any Rule and Order, stipulation, or voluntary agreement transferring the Districts’ Easements to the Districts within a reasonable time of such recording. 17. The City makes no claim to any compensation that may be awarded in this case. Each party to pay its own costs and attorneys’ fees. 18. If the Districts amend their Petition regarding the acquisition of property rights, the Districts will specifically indicate that such amended rights are being acquired subject to the City Easement subject to the terms and conditions of this Stipulation, or in the alternative, shall notify the City of such proposed amendment and provide the City an opportunity to respond. 19. The Districts and the City agree that upon the Court’s entry of an order approving this Stipulation, the City will no longer be required to participate in this action but shall remain a party and shall be served with all pleadings and orders in this action. 20. Based upon the terms set forth above, the parties request that the Court enter an order approving this Stipulation. EXHIBIT D 5 Respectfully submitted this 19th day of January, 2024. SPENCER FANE LLP This document is e-filed per C.R.C.P. 121, section 1-26. A duly signed copy is on file at the offices of Spencer Fane LLP /s/ Jamie N. Cotter Jamie N. Cotter Lauren A. Taylor CITY OF FORT COLLINS, COLORADO, a home rule municipality This document is e-filed per C.R.C.P. 121, section 1-26. A duly signed copy is on file at the offices of Spencer Fane LLP /s/ Ryan S. Malarky Ryan S. Malarky, # 41577 EXHIBIT D EXHIBIT E 1 of 4 DATE FILED: August 1, 2024 5:07 PM FILING ID: 6B722859AF582 CASE NUMBER: 2023CV30659 EXHIBIT E 2 of 4 Station 31+50 Bottom of Storm Sewer = 4981.00 Top of Water Line = 4978.5 2.5' Minimum 50 ft Hold elevation to Station 31+75 Station 31+50 Future Storm Sewer Crossing NEWT III Water Line Lowering Summary: - Crossing Location at Station 31+50 - Bottom of Storm Sewer Elev = 4981.00 - Top of Waterline = 4978.50 - Clearance between NEWT III Waterline and Future Storm Sewer Crossing = 2.5' - Lowering between station 31+25 to 31+75 DATE FILED: April 23, 2024 8:18 AM FILING ID: 9B37584C22047 CASE NUMBER: 2023CV30659 EXHIBIT E 3 of 4 EXHIBIT E 4 of 4 DISTRICT COURT, LARIMER COUNTY, COLORADO Court Address: 201 LaPorte Avenue, Suite 100 Fort Collins, Colorado 80521 Phone Number: (970) 494-3500 ▲COURT USE ONLY▲ ___________________________ Case Number: 2023CV30659 Division: 3B 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. RULE AND ORDER RULE AND ORDER THIS MATTER came before the Court on the Stipulated Motion for Entry of Rule and Order (the “Motion”) submitted by the Petitioners, East Larimer County Water District and North Weld County Water District (jointly, “Districts”), and stipulated to by Respondent K&M Company, LLLP (“K&M”), by their respective counsel of record. The Court, having read the Motion, reviewed the file, and being fully advised, hereby FINDS that: 1. This is an eminent domain proceeding commenced by the Districts by the filing of a Petition in Condemnation (“Petition”) on August 16, 2023 which was amended by the Amended Petition in Condemnation filed on May 6, 2024 (the “Amended Petition”). K&M owns the property (“Property”) that is within the County of Larimer, State of Colorado, and is more particularly described in the attached Exhibit A. DATE FILED: August 1, 2024 5:07 PM FILING ID: 6B722859AF582 CASE NUMBER: 2023CV30659 2 2. The Districts seek to acquire (i) a permanent easement (“Permanent Easement”) over, under, on and across the portion of the Property that is described and depicted in the attached Exhibit B (“Permanent Easement Area”) subject to the terms and conditions therein, and (ii) a temporary easement (“Temporary Easement”) in, on, under, over and across the portion of the Property that is described and depicted in the attached Exhibit C (“Temporary Easement Area”) subject to the terms and conditions therein. The Permanent Easement and Temporary Easement are jointly referred to as the “Easements.” 3. Respondent Irene Josey, in her official capacity as the County Treasurer of Larimer County, Colorado, disclaimed any interest in the subject matter of this action by a Disclaimer of Interest filed on August 31, 2023. 4. Respondent Poudre Valley Rural Electric Association, Inc. disclaimed any interest in the subject matter of this action by a Disclaimer of Interest filed on August 24, 2023. 5. Respondent Anadarko E&P Onshore LLC and Respondent Anadarko Land Corp. disclaimed any interest in the subject matter of this action by a Disclaimer of Interest filed on September 26, 2023. 6. In accordance with the stipulation entered into between the Districts and Respondent Boxelder Sanitation District: Respondent Boxelder Sanitation District (“BSD”) has an interest in the real 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., Larimer County, Colorado and is more particularly described on Exhibit 1 attached to the Amended Petition in Condemnation (the “Property”) by virtue of an Easement Agreement recorded April 9, 1979, in Book 1942 at Page 372 of the Larimer County, Colorado records (the “BSD Easement”). BSD owns and operates a sewer line and other facilities located on the Property. The Districts shall take title to, possession of, and use the permanent and temporary easements (collectively, the “Subject Easements”) to be acquired in this action, subject to the BSD Easement. The Districts and BSD acknowledge their respective rights are non-exclusive and, as such, the parties will 3 consider the existence of the respective utility facilities and improvements in future construction projects and work in good faith to try and resolve any engineering conflicts or concerns which may arise. BSD shall not seek to extinguish, impact or impair the Subject Easements or the public project for which the Subject Easements are being acquired, and BSD commits to replace or repair any existing improvements and design and construct future improvements in, on, under or across the portion of the Property where the Subject Easements are located in a manner so as to protect in place and minimize any impact or interference with the Subject Easements. 7. The Districts agreed to acquire the Easements subject to the terms and conditions of a Stipulation jointly filed by Respondent City of Fort Collins on January 19, 2024, which are incorporated into and made part of this Rule and Order and attached as Exhibit D. 8. As a result, K&M is the only remaining Respondent who claims any interest in the Easements or the compensation to be awarded for the taking of the Easements. 9. The Districts and K&M have agreed that the sum of One Hundred Eighty-Five Thousand Seven Hundred Eighty-Six and 00/100 Dollars ($185,786.00) (“Compensation”) represents the final and full compensation to be paid by the Districts for the taking of the Easements. The Compensation represents full satisfaction and payment of the just compensation to be paid to K&M for the taking of the Easements, including, without limitation, the value of the Easements, any damages or benefits to the remaining property, interest, costs, attorney fees and expenses of any kind. 10. The Districts previously deposited the sum of One Hundred Fifteen Thousand and 00/100 Dollars ($115,000.00) into the registry of the Court. The Districts shall deposit the remaining balance due in the amount of Seventy Thousand Seven Hundred Eighty-Six and 00/100 Dollars ($70,786.00) within 14 days of the Court’s entry of this Rule and Order. 4 11. The Districts are acquiring the Easements for and in furtherance of the public use and purpose of the construction, operation and maintenance of a water pipeline known as NEWT III. THEREFORE, IT IS HEREBY ORDERED THAT: 1. Under the Constitution and statutes of the State of Colorado, the Districts have duly and lawfully acquired, taken, and condemned the Easements described in Exhibits B and C attached hereto. 2. The Compensation amount of $185,786.00 represents full satisfaction and payment of the total just compensation to be paid to K&M, including, without limitation, the value of the Easements being acquired, including any damages, benefits and all interest, costs, attorney fees and expenses of any kind that any K&M might claim in this proceeding. 3. Upon the Districts depositing the remaining $70,786.00 of the $185,786.00 owed into the Court Registry, the Permanent Easement and Temporary Easement shall pass to the Districts. 4. The Clerk of this Court is ordered to accept such deposit amount from the Districts without further order of this Court and the Clerk of the Court Registry shall forthwith disburse the entire amount of $70,786.00, plus any interest accrued, via check made payable to Ald erman Bernstein COLTAF and mailed to Joshua Mangiagli, Alderman Bernstein LLC, 101 University Boulevard, Suite 350, Denver, CO 80206. 5. The Districts shall record a copy of this Rule and Order with all attachments in the office of the Larimer County Clerk and Recorder, in like manner and with like effect as if it were a deed of conveyance granting and conveying the Easements to the Districts. 5 4. If any exhibits referenced in this Rule and Order are not attached hereto, the Districts are granted leave to attach true and correct copies of such exhibits in the form submitted with the proposed Rule and Order, prior to the recording of this Rule and Order. Dated this _______ day of ______________________, 2024. BY THE COURT: _________________________________ District Court Judge