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HomeMy WebLinkAbout2024CV30118 - City v. Horsetooth Convenience Center, et al - 38 - Rule and OrderDISTRICT COURT, LARIMER COUNTY, COLORADO 201 LaPorte Avenue, Suite 100, Fort Collins, Colorado 80521 970-494-3500 ▲COURT USE ONLY▲ Petitioner: CITY OF FORT COLLINS, a Colorado home rule municipality, v. Respondents: HORSETOOTH CONVENIENCE CENTER, LLC, a Colorado limited liability company; 7-ELEVEN, INC., a Texas corporation; and IRENE E. JOSEY, in her official capacity as the COUNTY TREASURER OF LARIMER COUNTY. Case Number: 2024CV30118 Division: 4A FINAL RULE AND ORDER AND RELEASE OF NOTICE OF LIS PENDENS THIS MATTER COMES BEFORE THE COURT on the Stipulation for Entry of Final Rule and Order and Release of Notice of Lis Pendens entered into and submitted by Petitioner, City of Fort Collins (the "City") and Respondents Horsetooth Convenience Center, LLC ("HTCC") and 7-Eleven, Inc. ("7-Eleven") (collectively, "Respondents"). Based upon the Stipulation for Entry of Final Rule and Order and Release of Notice of Lis Pendens, all responses, replies, or other submittals in response thereto, and having been fully advised of the circumstances of this case, THE COURT HEREBY FINDS AS FOLLOWS: 1. The City filed this condemnation action on or about February 12, 2024. 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 $410,500.00 into the Court Registry. The City made that deposit on April 12, 2024. On June 28, 2024, the City filed its Motion to Amend Petition in Condemnation. The Amended Petition was accepted by the Court on June 28, 2024. The Amended Petition amended the property interests to be acquired by the City; however, the legal descriptions remained unchanged. 2. The City seeks to acquire certain fee simple property, temporary easements, a permanent easement, and a utility easement in Larimer County, Colorado, as described in the Exhibits attached to the Amended Petition in Condemnation filed in this action. Specifically, Petitioner seeks to acquire: (a) the land described in Exhibit 1, attached hereto, in fee simple; (b) an access and maintenance easement to be acquired on, over, across and through the property as described in Exhibit 2 subject to the terms and conditions therein; (c) a utility easement to be acquired on, over, across and through the property described in Exhibit 3 subject to the terms and conditions therein; and (d) temporary construction easements to be acquired on, over, across and through the property described in Exhibit 4 and subject to the terms and conditions therein. DATE FILED December 3, 2024 11:14 AM CASE NUMBER: 2024CV30118 2 3. The Court hereby grants the Parties' request to amend the terms of Exhibit 4, and the amended Exhibit 4 shall be deemed filed as of the date of the filing of the original Petition, February 12, 2024. The property rights described in Exhibits 1-4 are collectively referred to herein as the "Subject Property". The Exhibits describing the Subject Property, including the amended Exhibit 4, are attached hereto and incorporated by this reference. 4. The City is legally authorized to acquire the Subject Property through its power of condemnation, and the acquisition of the Subject Property is necessary for public use in order to construct public infrastructure in the City and promote the safety and welfare of the general public. All other requirements and prerequisites for the City's acquisition of the Subject Property through its power of condemnation have been satisfied. 5. Based upon the records and files herein, all persons interested as owners or otherwise appearing on record have been joined as Respondents in this action. Service of process has been properly perfected on all named Respondents as required by law, or the same have subjected themselves to the jurisdiction of this Court, and the Court has full and complete jurisdiction over the Parties hereto. 6. The Court has subject matter jurisdiction pursuant to C.R.S. § 38-1-102(1). 7. Venue in the Larimer County District Court is proper pursuant to C.R.C.P. 98(a) because the Subject Property being taken in this condemnation action is located in Larimer County, Colorado. 8. On February 15, 2024, counsel for the City filed a Waiver of Process and Acceptance of Service for Irene E. Josey in her official capacity as the County Treasurer of Larimer County and Returns of Service for Respondents HTCC and 7-Eleven. 9. Respondent HTCC has an ownership interest in the Subject Property and Respondent 7-Eleven has a leasehold interest in the Subject Property. 10. Irene E. Josey, in her official capacity as the County Treasurer of Larimer County, was named as a respondent herein pursuant to C.R.S. § 39-3-134. On February 27, 2024, Respondent Irene E. Josey filed a Disclaimer of Interest by the Treasurer of Larimer County, disclaiming all interest in the Subject Property. 11. Respondents have consented to the taking of the Subject Property by the City and to the entry of this Final Rule and Order and Release of Notice of Lis Pendens, upon the terms and conditions stated herein. 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 Subject Property to be acquired, including compensation for the taking of the Subject Property, any damages to the remainder, interest, expenses, costs, attorney fees and all other claims or demand for compensation or remuneration of any kind resulting from the City's taking in this matter. Pursuant to that agreement, the City shall pay settlement consideration of $550,000 inclusive of the $410,500 deposit previously made by the 3 City. The additional amount to be paid by the City shall be $139,500 ("Supplemental Deposit"). The Supplemental Deposit shall be full and final payment for all compensation, damages as well as all costs, expenses, interest, and fees related to the action. 12. Within 21 days of the Court entering this Final Rule and Order and Release of Notice of Lis Pendens, the City will deposit the entire amount of the Supplemental Deposit into the Court Registry. Payment of the Supplemental Deposit into the Court Registry will fully and finally resolve this action. Upon the City's making of the Supplemental Deposit, the City agrees that the Court shall place and keep the sum of $550,000 in an interest-bearing account, if the Court has such an account, until an apportionment trial determines - or the Respondents stipulate to - the distribution of those funds among the Respondents. The City shall not be obligated to attend such an apportionment trial or have any further participation in this action once this Final Rule and Order is entered and the Supplemental Deposit is made with the Court. NOW THEREFORE, based upon these findings and other matters in the Court record, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the land described in Exhibits 1, 2, 3, and 4 (as amended) attached hereto, is and has been duly and lawfully taken and condemned by the City of Fort Collins pursuant to the statutes and the Constitution of the State of Colorado and that, upon payment of compensation as described herein, title to the Subject Property is hereby conveyed to Petitioner subject to the terms contained herein. IT IS HEREBY FURTHER ORDERED, ADJUDGED AND DECREED that the Clerk of this Court is ordered to accept such Supplemental Deposit amount from the City and hold the same for the subject matter of this action. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the payments and obligations of Petitioner as set forth herein shall constitute the total amount to fully and finally resolve all issues herein, including the amount of compensation due to all Respondents for the taking of the Property, that the Respondents are not entitled to any further compensation for interest, expenses, court costs, expert witness fees, appraisal fees, damages, attorney fees and all other claims or demand for compensation or remuneration of any kind resulting from the City's taking, or litigation expenses related to this action, and that no claim for the same may be made against the Subject Property. All claims for compensation or damages resulting from the taking of the Subject Property must be made against the amounts deposited by the City with the Court Registry, as described herein, and not against the City or against the Subject Property. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that a certified copy of the Final Rule and Order and Release of Notice of Lis Pendens shall be recorded and indexed in the Office of the Clerk and Recorder of Larimer County, Colorado, in like manner and in like effect as if it were a deed of conveyance of the Subject Property from the owners and parties interested therein to Petitioner, the City of Fort Collins. Upon such recording, the Notice of Lis Pendens, recorded at Reception No. 20240005792 on February 16, 2024, shall be released and of no further force of effect. 4 DONE this ____ day of __________, 2024. ___________________________________ Carroll Michelle Brinegar District Court Judge 3 December