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HomeMy WebLinkAboutMINUTES-01/29/1985-AdjournedADJOURNED MEETING ' OF THE COUNCIL OF THE CITY OF FORT COLLINS, COLORADO January 29, 1985 7:00 p.m. An adjourned meeting of the Council of the City of Fort Collins was held on Tuesday, January 29, 1985, at 7:00 p.m. in the Council Chambers in the City of Fort Collins City Hall. Roll call was answered by the following Councilmembers: Clarke, Elliott, Horak, Knezovich, Ohlson, Rutstein, and Stoner. Staff Members Present: Arnold, Shannon, Huisjen, Krajicek, Lewis, L. Hopkins Resolution Regarding a Construction Agreement with the Fort Collins Municipal Railway Society, Adopted as Amended City Manager John Arnold summarized the history of the trolley project and ' the involvement of the Trolley Society in the project. He noted an agree- ment had been signed in 1981 that allowed the trolley to go down West Mountain. He added that in April of 1984 a Resolution had been passed directing there would be a series of phases that would be operational by December of 1984. If those phases were not operational, City Council would determine the trolley contract was in default. The Society managed to complete those phases by December 31, 1984 and the staff feels the Society is in substantial compliance with the spirit and the letter of the Resolu- tion and the addendum to the original contract. He stated Council had two options: to allow the Society to move ahead or to decide they should not move ahead. Mark Bassett, Fort Collins Railway Society, spoke of the long hours spent by the Society on the project. He spoke of the neighborhood input sought and received by the Society in 1980 and stated the City had in effect delayed the Society a year because they were not allowed to move ahead with the project due to the 60-day moratorium to explore alternate routes. He stated that delay extended past the tree moving season and allowed them to build only to the irrigation ditch. He spoke of their volunteer support and of their fund raising efforts. He spoke of the April Resolution, the contract addendum, and the many City construction inspections prior to operating the trolley on December 29, 1984. He asked Council to guarantee the future of the project by extending the contract deadline to December 31, 1986. -45- January 29, 1985 Mark Korb, 1223 West Mountain, spoke of the concerns of the residents of West Mountain and described a history of problems in performance by the Society, who rely on volunteer labor and donations. He felt the trolley would eventually become the responsibility of the City and the taxpayers when the project was completed and volunteer enthusiasm and participation waned. He asked Council to consider terminating the project at its present stage and continue to look at alternate routes, if they chose. Councilmember Rutstein made a motion, seconded by Councilmember Knezovich, to adopt Resolution 85-14 (Option A) stating the contract is in default and the project will not continue. Councilmember Rutstein made a motion, seconded by Councilmember Ohlson, to amend the Resolution by deleting Section A, relettering Section B to A, and adding Section 2 A and B as follows: 2. A. The City shall negotiate with the Society for an oper- ating agreement under which the Society will, on behalf of the City, operate the City's trolley car upon the section of track which has been approved, inspected and accepted by the City as of January 29, 1985. The City and the Society shall consult with all interested neighborhood groups and parties in interest to obtain their comment and evaluation of the operating agreement prior to the approval of any of the agreement by the City. Such agreement shall be presented to the City for approval not later ' that the 30th day of March, 1985. B. The Society shall complete all incomplete or imperfect work which was to be accomplished according to the terms of the Addendum to Construction Aareement, such work to be completed prior to any operation of the trolley car and not later than the date of March 15, 1985. Councilmember Rutstein stated she felt that on the basis of timeliness, the contract was in default. She noted she had included the provision for the negotiation of an operating agreement so the Society could operate the trolley on the section of the track that has been completed. She spoke of the delays throughout the project and stated past performance indicated the December 31, 1985 deadline could not be met. She .felt it would be foolish to allow the construction to continue knowing the contract could not be completed by December 31, 1985. Councilmember Knezovich urged defeat of the amendment and asked Council to consider Option A as originally drafted. The vote on Councilmember Rutstein's motion to amend Resolution 85-14 was as follows: Yeas: Councilmembers Horak, Ohlson, and Rutstein. Nays: Councilmembers Clarke, Elliott, Knezovich, and Stoner. -46- ' THE MOTION FAILED. January 29, 1985 Councilmember Knezovich urged defeat of Option A because he felt the section stating the Society had failed to complete all the terms of the contract addendum was false. Mayor Horak felt all the terms of the contract addendum had not been completed and that additional work would need to be done. The vote on Councilmember Rutstein's motion to adopt Resolution 85-14 (Option A) was as follows: Yeas: Councilmembers Horak, Ohlson, and Rutstein. Nays: Councilmembers Clarke, Elliott, Knezovich, and Stoner. THE MOTION FAILED. Councilmember Clarke made a motion, seconded by Councilmember Elliott, to, adopt Resolution 85-14, Option B revised version. Councilmember Clarke made a motion, seconded by Councilmember Elliott, to amend the Resolution by adding the date August 31, 1986 and the phrase "recognizing that such date reflects an extension of time for the Society to complete its performance, such extension granted for good cause shown." ' Mark Korb, 1223 West Mountain, did not believe the eight month extension would be adequate to address the problem and questioned what happened in August of 1986 if the project is still not complete. He estimated comple- tion would take approximately 3 112 times the amount of time Council was proposing. He stated this deferral was not the solution to this long lasting problem. He felt the contract should be dealt with in terms of the December 31, 1985 date. �I Charles Tucker, Pierce, Colorado, expressed support for the project and offered the use of his equipment and labor to the Society. Councilmember Clarke spoke in support of his motions noting he felt the Society deserved additional time to complete the project because of the delays faced due to the Council requests and other extenuating circum- stances. He noted the alternate route concept had been looked at with all sincerity by all involved and expressed frustration that the alternate route idea did not succeed. He felt Council was required to extend the contract to a time when the Society could reasonably complete the project and yet minimize the impact on the neighborhood. Councilmember Stoner asked if there was legal precedent for extending the contract. -47- January 29, 1985 City Attorney Huisjen replied that if Council concluded there have been delays caused by the City, Council could also conclude there should be an extension of time -- the theory of excusable delay. He added that during the period of time under which the contract is to be performed, Council is entitled to negotiate extensions of time in writing and allow the contract to be modified in that sense. David Wood, attorney representing the Society, agreed with City Attorney Huisjen and added the contract was bilateral between the City and the Society and as such that contract could be amended by them at any time as long as no other party is disadvantaged or prejudiced by virtue of the delay alone. He felt either of the completion dates would have no direct bearing on any other party and felt the way was clear for the revision of the contract. Councilmember Rutstein asked if it could not be argued that the timeliness of the contract was important and that the existing dates were important., City Attorney Huisjen replied that the contract had dates regarding per- formance and felt that the time of performance was an important element of the contract and was always meant to be. Councilmember Ohlson stated the extension date was meaningless since he felt if the August 31, 1986 date was not met, it would be extended even ' further. Councilmember Knezovich urged support for the August 31, 1986 amendment. He noted the fact that the use of City equipment had been withdrawn was a significant setback to the Society and stated he felt the mediation efforts had caused doubt about the viability of the project. He added the delay in the relocation of the trees was a third reason to extend the contract deadline. Councilmember Rutstein opposed the August 31, 1986 date, and noted she felt the 60-day delay had not prevented the Society from proceeding with Phase II. She felt the reason was that the Society had not completed Phase I on July 8, 1983. Councilmember Elliott noted the original contract had contained provisions to renew or extend the terms of the agreement. He felt whatever timetable deemed necessary could be affixed based on whether Council decided the project should proceed or not. Councilmember Clarke spoke on his reasons for wanting to extend the con- tract. He cited the withdrawal of the use of City equipment and the fact that the Trolley Society agreed to participate in the alternate route negotiations. He felt those discussions sapped the strength of the Society to complete the work as they indicated. -48- ' January 29, 1985 Mayor Horak felt Council was dealing with a project that affected public good and policy. He felt the grounds for extension needed to be looked at in that light since other parties will be affected. He noted he opposed the amendment. The vote on Councilmember Clarke's amendment to extend the deadline to August 31, 1986 was as follows: Yeas: Councilmembers Clarke, Elliott, Knezovich, and Stoner. Nays: Councilmembers Horak, Ohlson, and Rutstein. THE MOTION CARRIED. Ken Bonetti, 306 East Elizabeth, felt the neighborhood on West Mountain was opposed to the project and felt the issue was neighborhood self-determina- tion. He felt this issue should be considered over and above the legal issue. Richard Stevens, 308 East Oak, member of the Fort Collins Historical, Society Board, read a statement strongly in support of the project on behalf of the Board. B.J. Gebhart, 606 Hanna, spoke in opposition to the West Mountain route., Mark Korb, 1223 West Mountain, suggested the contract be amended to delete ' the language that allows it to be extended further to make certain the August 31, 1986 date is not extended again. Ken Stitzel, 629 South Howes, read a statement from his father James Stitzel in support of the project on West Mountain. He recommended the issue be put to a City-wide vote. 1. Nell Van Driel, 1212 West Mountain, expressed her concern about the trees on the route, especially those too large to he moved. She estimated their worth to be one -quarter of a million dollars. Tim Buchanan, City Forester, replied that 64 trees and 2 shrubs still need to be transplanted. They are larger than should be considered for trans- planting and he estimated 20% would be lost if they're moved in the spring. Another year's delay would increase the loss rate by 15%. Councilmember Clarke felt the issue was one of basic philosophy. He questioned who owned West Mountain Avenue and concluded all the citizens of Fort Collins were owners. He felt that ownership took precedent over the residents of West Mountain and felt the overall interests of the City were best served by the decision made in 1981 to route the trolley on West Mountain. Councilmember Stoner felt the neighborhood self-determination was not a consensus in the West Mountain neighborhood. -49- January 27, "_335 Councilmember Stoner made a motion, seconded by Councilmember Rutstein, to amend Resolution 85-14 (Option B revised) to add a new Section 3 as follows: "3. It is further understood and agreed that with the granting of this extension, any further extensions of the contract will not be considered." City Attorney Huisjen noted this was a matter left for future Councils to make determinations about and it was a contract matter which would not restrict later further modification of the contract. He felt the contract could be legally amended later despite the addition of the provision. Councilmember Knezovich suggested the amendment be phrased to prevent the Society from laying rail until an operating agreement and a construction schedule can be agreed on to bring closure to the project. City Manager Arnold noted the contract provided for a construction schedule and that an operating agreement would be negotiated soon after this meet- ing. He stated the operating agreement would contain the termination date of August 31, 1986 which would be enforced by the City and complied with by the Trolley Society. Councilmember Ohlson noted he found the discussion ridiculous and meaning- ' less and unfair to all the parties involved. He felt the decision should be made at this meeting. He anticipated a 4-3 vote that would allow the trolley to continue on West Mountain Avenue. He stated everyone would cooperate to meet the deadline and minimize the impact on the neighborhood and added the trolley would become a reality. Mark Bassett stated the Society wanted the trolley line installed as soon as absolutely possible. He asked for the August 31, 1986 date and to be allowed to proceed. Bill Yoder supported the project as a link to light rail. City Attorney Huisjen again stated that although this amendment would in fact amend the contract to include that language, it does not prevent later Councils from similarly amending the contract to change the date of performance. He noted the amendment would be one of many terms of the contract which may be modified between the parties at a later date. Councilmember Rutstein noted the amendment had the strength of giving clear direction to future Councils of this Council's intent. She urged support for the amendment. -50- 1 January 29, 1985 The vote on Councilmember Stoner's amendment was as follows: Yeas: Councilmembers Clarke, Elliott, Horak, Knezovich, Rutstein, and Stoner. Nays: Councilmember Ohlson. THE MOTION CARRIED. Councilmember Ohlson expressed his frustration with the issue. He noted it was a clash of historical preservation and neighborhood self-determination, both of which were very important to him. He cited the length of the process and concluded the majority of the neighborhood opposed the project; it will take a minimum of two years to complete the project; and consider- able City resources will be needed to complete the project. He felt neighborhood self-determination won over a very admirable but non -essential City project. Councilmember Elliott felt his decision should be for the good of the City of Fort Collins and noted he would support the proposal because of the recent activity in the downtown and Old Town areas. He felt the trolley' could be a significant, living, historical object to enhance the City as a whole. Councilmember Knezovich pointed out there was a broad base of support on West Mountain Avenue for the project and noted alternate routes had been explored. He opposed the direct spending of City dollars to maintain and ' operate the trolley and stated he felt the Trolley Society would be respon- sible for both. He felt it was important to have closure on the issue. Councilmember Rutstein felt the Society had done a very good job in re= .storing the car but that it was a mistake to have it on Mountain Avenue since the costs were much greater than the benefits. She cited City staff costs, neighborhood disturbance, and felt an acceptable alternate route could have been found. She noted she would not support the Resolution. Mayor Horak noted many of the processes to treat issues such as this that are in place today, were not in place in 1981. The neighborhood notifica- tion process would have worked differently and the appropriate boards and commissions would have been asked for their recommendations prior to a Council decision. He noted the volunteer aspect of the project caused most of the work to be done on weekends, just the opposite of most other pro- jects. He noted the project had a great deal of community benefit but the length of the project had been externalized on the neighborhood. He felt the decision made at this meeting would not be the final one since this Council and future Councils were dealing with a contract.' The vote on Councilmember Clarke's motion to adopt Resolution 85-14 as amended by Councilmember Stoner was as follows: Yeas: Councilmembers Clarke, Elliott, Knezovich, and Stoner. Nays: Councilmembers Horak, Ohlson, and Rutstein. 1 -51- THE MOTION CARRIED. January 29, 1985 Councilmember Knezovich made a motion, seconded by Councilmember Rutstein, that the City staff shall negotiate with the Society the terms for the use of the trolley barn facility; the terms of safety considerations during construction; and the terms of an operating agreement under which the Society will, on behalf of the City, operate the City's trolley car upon the section of track which has been approved, inspected and accepted by the City as of January 29, 1985, and the extensions of track that are approved by the City in sufficient length for adequate public use but not less than one thousand feet (1,000 ft.) in each section approved. Such agreement shall be submitted to the City in writing by February 28, 1985, setting forth the operations of the trolley and the use of the trolley barn facility. Councilmember Knezovich felt it was important to deal with the barn opera- tion, the operating agreement, and the safety issue as soon as possible. City Manager Arnold asked if the neighborhood was to be involved in the negotiation of the operating agreement. Councilmember Knezovich replied his intent was to allow staff and the Society to draft an agreement to be brought to Council. He doubted both ' sides could successfully negotiate an agreement by February 28. Councilmember Rutstein noted she would prefer to have the neighborhood involved from the beginning to minimize the objections at the end. Councilmember Rutstein made a motion, seconded by Councilmember Elliott, to amend Councilmember Knezovich's motion by adding the requirement that the negotiations of the terms of the operating agreement shall involve the neighborhood and include the members of the Parkway Preservation Society. Marc Teets, 1423 West Mountain, suggested the old contract be dissolved and a new contract drafted containing all the terms and conditions specified. Councilmember Knezovich felt Councilmember Rutstein's amendment was not workable and suggested the process was in'place to make sure the input of all the citizens of Fort Collins is received. He urged defeat of the amendment. The vote on Councilmember Rutstein's amendment was as follows: Yeas: Councilmembers Clarke, Elliott, Horak, Ohlson, Rutstein, and Stoner. Nays: Councilmember Knezovich. THE MOTION CARRIED. IJanuary 29, 1985 The vote on Councilmember Knezovich's motion as amended by Councilmember Rutstein was as follows: Yeas: Councilmembers Clarke, Elliott, Horak, Knezovich, Ohlson, Rutstein, and Stoner. Nays: None. THE MOTION CARRIED. Adjournment Councilmember Clarke made a motion, seconded by Councilmember Ohlson, to adjourn the meeting to 6:00 p.m, on February 5 to allow Council to adjourn into Executive Session to discuss legal matters. Yeas: Councilmembe,rs Clarke, Elliott, Horak, Knezovich, Ohl son, Rutstein, and Stoner. Nays: None. The meeting adjourned at 10:05 p.m. Mayor ATTTESfT: e rk City Clerk 1 -53- is