HomeMy WebLinkAbout2023CV30659 - East Larimer County Water Dist. v. K & M Co., et al. - 44 - 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▲
___________________________
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 2, 2024 11:35 AM
CASE NUMBER: 2023CV30659
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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
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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.
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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.
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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
Juan G. Villaseñor
District Court Judge
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.
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Permanent Non-Exclusive Water Pipeline Easement
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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
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Permanent Non-Exclusive Water Pipeline Easement
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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
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Permanent Non-Exclusive Water Pipeline Easement
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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
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Permanent Non-Exclusive Water Pipeline Easement
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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
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Permanent Non-Exclusive Water Pipeline Easement
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EXHIBIT ‘1’ TO PERMANENT NON-EXCLUSIVE WATER PIPELINE EASEMENT
Legal Description and Depiction of Permanent Easement
EXHIBIT B 5 of 14
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EXHIBIT 2
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EXHIBIT 2
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EXHIBIT 2
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EXHIBIT 2
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Permanent Non-Exclusive Water Pipeline Easement
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EXHIBIT ‘2’ TO PERMANENT NON-EXCLUSIVE WATER PIPELINE EASEMENT
Construction Plans
EXHIBIT B 10 of 14
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EXHIBIT B 11 of 14
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EXHIBIT B 12 of 14
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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
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EXHIBIT B 14 of 14
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(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
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(06/18/09)
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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
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(06/18/09)
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EXHIBIT ‘1’ TO TEMPORARY CONSTRUCTION EASEMENT
Legal Description and Depiction of Temporary Construction Easement
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EXHIBIT 3
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EXHIBIT 3
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EXHIBIT 3
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EXHIBIT 3
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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
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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
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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.
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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
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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
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EXHIBIT E 1 of 4
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EXHIBIT E 2 of 4
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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
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EXHIBIT E 4 of 4
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