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Home My WebLink About2024CV30118 - City v. Horsetooth Convenience Center, et al - 37 - Stipulation for Final Rule and Order12/2/2024 Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\PLEADINGS\STIPULATION FOR FINAL RULE AND ORDER-120224.DOCX DISTRICT COURT, LARIMER COUNTY, COLORADO 201 LaPorte Ave., Suite 100, Fort Collins, Colorado 80521 ▲COURT USE 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 Attorneys for Petitioner M. Patrick Wilson, No. 26303, pwilson@hpwclaw.com Katharine J. Vera, No. 53995, kjv@hpwclaw.com Hoffmann, Parker, Wilson & Carberry, P.C. 511 16th Street, Suite 610 Denver, Colorado 80202 Telephone: 303-825-6444 Attorneys for Respondent Horsetooth Convenience Center, LLC: Sarah M. Kellner, sarah.kellner@dgslaw.com Makenna X. Johnson, makenna.johnson@davisgraham.com DAVIS GRAHAM & STUBBS LLP 1550 17th Street, Suite 500 Denver, Colorado 80202 Telephone: 303.892.9400 Attorneys for Respondent 7-Eleven, Inc.: Carrie S. Bernstein, csb@ablawcolorado.com Joshua T. Mangiagli, jtm@ablawcolorado.com ALDERMAN BERNSTEIN LLC 101 University Blvd., Suite 350 Denver, Colorado 80206 Division: 4A STIPULATION FOR ENTRY OF FINAL RULE AND ORDER AND RELEASE OF NOTICE OF LIS PENDENS DATE FILED December 2, 2024 2:06 PM FILING ID: 2EA4397BDE4A0 CASE NUMBER: 2024CV30118 2 12/2/2024 Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\PLEADINGS\STIPULATION FOR FINAL RULE AND ORDER-120224.DOCX Petitioner, the City of Fort Collins (the "City") and Respondents, Horsetooth Convenience Center, LLC ("HTCC") and 7-Eleven, Inc. ("7-Eleven") (collectively, "Respondents"), through their undersigned counsel, hereby stipulate pursuant to C.R.S. § 38-1- 105(3) and (4), to the entry of a Final Rule and Order and Release of Notice of Lis Pendens in the form that is submitted contemporaneously herewith ("Final Rule and Order"). As part of this Stipulation, the City and Respondents hereby state and agree as follows: 1. On February 12, 2024, the City filed a Petition in Condemnation to acquire two temporary easements, a permanent easement, a utility easement, and fee taking of real property located in Larimer County, Colorado. 2. All parties named herein have been properly served in accordance with C.R.S. § 38-1-103 or waivers of service provided, returns of service have been filed with the Court, and these named parties are now subject to the jurisdiction of the Court. On April 11, 2024, the City and Respondents entered into a Stipulation for Possession of the Subject Property, and the Court entered an Order granting the City immediate possession of the Subject Property upon deposit of $410,500 into the Court Registry. The City made that deposit on April 12, 2024. 3. On June 28, 2024, the City filed its Motion to Amend Petition in Condemnation, with partial consent of the Respondents. The Amended Petition was granted on June 28, 2024, and related back to the date of filing of the original Petition in Condemnation. The Amended Petition amended the property interests to be acquired by the City; however, the legal descriptions remained unchanged. The temporary easements, permanent easement, utility easement, and fee taking of real property as described in the Amended Petition in Condemnation is the subject of this eminent domain action (the "Subject Property"). 3 12/2/2024 Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\PLEADINGS\STIPULATION FOR FINAL RULE AND ORDER-120224.DOCX 4. On February 27, 2024, Respondent Irene E. Josey, in her capacity as Treasurer of Larimer County, filed a Disclaimer of Interest by the Treasurer of Larimer County, disclaiming all interest in the Subject Property. Accordingly, only the Respondents HTCC and 7-Eleven have outstanding claims that are being resolved by this Stipulation and Final Rule and Order. 5. The City is not aware of any parties, other than HTCC and 7-11, with an interest in the Subject Property or claim to the condemnation proceeds. 6. By this Stipulation, Respondents consent to the taking of the Subject Property by the City, and to the entry of this proposed Final Rule and Order. The City and Respondents have reached an agreement by which all issues have been fully and finally resolved with respect to taking of the Subject Property and the compensation to be paid for the acquisition of the Subject Property, including compensation for the property rights actually taken, damages to the remainder parcel, interest, expenses, costs, and attorney fees in this matter. The total compensation to be paid for the taking of the Subject Property, including the $410,500.00 deposit previously made by the City and any damages to the remainder, interest, expenses, costs, and attorney fees, is $550,000.00. 7. By this Stipulation, Petitioner and Respondents also consent to and request that the Court approve the following changes to the terms of the temporary construction easement (the "TCE") that is Exhibit 4 to the Amended Petition in Condemnation: a. Section 5(a)(i) of the TCE is amended to read as follows: Beginning in February 2025, and for the duration of TCE 15, the Property will have full access from College Avenue, but Trilby access will not be available due to the City's project closing a portion of Trilby Road in the City's right of way. Notwithstanding the Trilby Road closure, Petitioner's occupation and construction of the driveway area accessed from Trilby Road shall be limited to one month during the City's closure of Trilby 4 12/2/2024 Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\PLEADINGS\STIPULATION FOR FINAL RULE AND ORDER-120224.DOCX Road. The City will give Respondents 30 days written notice of commencement of the TCE 15 work. b. Section 8(a) of the TCE is amended to read as follows: TCE 15: 12 months a. Commencement: May 1, 2025 b. Termination: April 30, 2026 The above amendments are reflected in the TCE Exhibit marked as Exhibit 4 and attached to the Final Rule Order. 8. Within 21 days of the Court's entry of the Final Rule and Order, the City will deposit the additional sum of $139,500.00 into the Court Registry, which shall represent the total amount of just compensation that remains owing for the Subject Property, including compensation for the property rights actually taken, any and all damages to the remainder, interest, costs, attorney fees and all other claims or demand for compensation or remuneration of any kind resulting from the City's taking, as agreed upon by the parties. Payment of the additional sum of $139,500.00 into the Court Registry by the City will fully and finally resolve the issue of just compensation for this condemnation action. WHEREFORE, the City and Respondents respectfully request that this Court enter the attached Final Rule and Order in this matter. Respectfully submitted this 2nd day of December 2024. HOFFMANN, PARKER, WILSON & CARBERRY, P.C. /s/ Katharine J. Vera______________ Katharine J. Vera ATTORNEYS FOR PETITIONER 5 12/2/2024 Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\PLEADINGS\STIPULATION FOR FINAL RULE AND ORDER-120224.DOCX DAVIS GRAHAM & STUBBS LLP /s/ Sarah M. Kellner_______________ Sarah M. Kellner ATTORNEYS FOR RESPONDENT HORSETOOTH CONVENIENCE CENTER LLC ALDERMAN BERNSTEIN LLC /s/ Carrie S. Bernstein_____________ Carrie S. Bernstein ATTORNEYS FOR RESPONDENT 7- ELEVEN, INC. 6 12/2/2024 Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\PLEADINGS\STIPULATION FOR FINAL RULE AND ORDER-120224.DOCX CERTIFICATE OF SERVICE I certify that on this 2nd day of December 2024, I caused a true and correct copy of the foregoing STIPULATION FOR ENTRY OF FINAL RULE AND ORDER AND RELEASE OF NOTICE OF LIS PENDENS to be served via CCES, U.S mail and/or E-mail to the following: Sarah M. Kellner, No. 38111 Makenna X. Johnson, No. 56831 DAVIS GRAHAM & STUBBS LLP 1550 17th Street, Suite 500 Denver, Colorado 80202 Telephone: 303.892.9400 Email: sarah.kellner@dgslaw.com makenna.johnson@davisgraham.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/ Emma Cail Emma Cail, Paralegal