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HomeMy WebLinkAboutMINUTES-04/24/1984-AdjournedADJOURNED MEETING OF THE COUNCIL OF THE CITY OF FORT COLLINS, COLORADO April 24, 1984 7:00 p.m. An adjourned meeting of the Council of the City of Fort Collins was held on Tuesday, April 24, 1984, at 7:00 p.m. in the Council Chambers in the City of Fort Collins City Hall. Roll call was answered by the following Council members: Elliott, Horak, Knezovich, Ohlson, Rutstein, and Stoner. Secretary's Note: Councilmember Clarke arrived at 7:40 p.m. Staff Members Present: Arnold, Huisjen, Krajicek, Lewis Resolution Regarding a Construction Agreement with the Fort Collins Municipal Railway Society, Adopted City Manager Arnold .noted this meeting had been scheduled to deal exclu- sively with the trolley issue. He spoke of the meetings recently held on this issue and of the negotiations held by Councilmember Clarke. City Attorney Huisjen noted that on April 20, Judge Moore in U.S. District Court had ordered the complaint filed against the City of Fort Collins and the Fort Collins Municipal Railway Society dismissed. The court found that the plaintiffs' claims were not properly before that court and the court could not take jurisdiction. He noted more information would be provided after staff has had an opportunity to review the order. He noted this action had no effect on tonight's hearing and that the question before Council dealt with the Trolley Society's performance. The following persons spoke on this issue: 1. Dave Wood, attorney representing the Fort Collins Railway Society, introduced Mark Bassett, President of the Society. 2. Mark Bassett, President of the Fort Collins Railway Society, presented a slide show showing the early conditions of the car and the restoration efforts towards Birney Car #21. 3. Joan Seegmiller, 731 West Mountain, spoke of the Society's efforts to restore the car, the historical significance of the project, and the commitment of the group to the project. -407- April 24, 1984 4. Roger Smith, 825 Strachan Drive, restoration supervisor of the project, spoke of the condition and historic value of the car. He described the car as unique and noted the decline in numbers of the Birney cars in existence. He described the Society's methods of gathering parts and information needed in the restoration effort and described the skills needed to restore missing parts. He noted the donations of parts, materials, and labor that have gone into the project. 5. Art Mitchell, 1614 Adriel Circle, track construction supervisor, spoke of the standards and methods of track construction. He noted all construction exceeds standards for Class 6 track. 6. Mark Bassett reviewed the history of the contract with the City, the Society's performance, and the reasons for delays on the project. He noted attempts to resolve concerns on the movement of the trees had resulted in a 60 day delay. He added that addi- tional delays had resulted because the City Manager had declined the use of City equipment for heavy labor projects and that this had also caused additional expense. He noted rail construction standards exceeded those for light rail at almost no cost to the City and cited the huge costs for light rail in other cities. He asked Council to support the contract. 7. Dave Wood summed up noting the Society felt most delays had been caused by the City or by joint negotiations. He stated the Society would finish the project despite adversity. He noted that two Councils had felt the project was desirable and that the contract should be lived by. He stated the Society deserved support and appealed to Council to demonstrate their willingness to live by the contract. 8. Carol Podmore, 1205 West Mountain, .read a statement relating to whether or not the Society has met the terms of their contract. She asked Council to interpret the contract as written and to find the contract in default: 9. Ray Hale, attorney representing some of the opponents of locating the trolley on West Mountain Avenue, noted the cost of City staff time associated with the project. He spoke of the PUD process for the barn portion of the project and the lack of notice to area residents. He predicted the project would not be completed by December, 1985 and asked the contract be terminated immediately. 10. John Messineo, 137 North Bryan, stated he felt the original agreement should have been authorized by ordinance rather than resolution because of the Charter requirements dealing with the April 24, 1984 City's ability to enter into contracts for service. He asked that the contract be declared in default. 11. Mark Korb, 1223 West Mountain, asked what the purpose of the contract was and noted any contract sets out the rights, responsi- bilities, and expectations of the parties involved. He added default provides a way out or remedy when circumstances change for any of the parties. 12. Marc Teets, 1423 West Mountain, read a letter from attorney Gene Fischer, 1205 Westward Drive, stating his opinion that the trolley agreement is invalid. Mr. Fischer opposed the West Mountain location and expressed concern about the restoration of West Mountain if the trolley venture fails. He suggested bonding of some type. 13. Dave Frick, 1300 West Mountain, noted the residents on West Mountain were committed to their neighborhood and suggested the trolley be used to help revitalize the downtown. He asked the contract be declared in default to preserve the West Mountain neighborhood. 14. Paul Hutchinson, 1108 Pitkin, expressed surprise at the opposition I to the project and noted he did not feel it would adversely affect property values. He supported the Society in their project. 15. Dick Beardmore, 2212 Kiowa Court, encouraged Council to: a. Continue Council's historical support for this project; b. Resume project assistance through sharing of City staff, equipment and resources, as on other City projects; c. Continue to work with both sides to further mitigate concerns for landscaping by contributing additional plant materials and City Arborist expertise; d. Personally inspect the quality of trolley restoration and in -place street crossing, trolley barn, and track installa- tion; e. Realize that schedule adjustments are not the "end of the world" and really not the essence of this contract; f. Walk the West Mountain Avenue median and experience current traffic and noise levels; and g. Do not declare the Railway Society in default. -409- April 24, 1984 16. Jay April, 1208 West Mountain, applauded the Society for their gift to the community but noted Council needed to make a decision that has historical significance and added the gift might not be a good idea over time. He believed a compromise route was still possible that would retain what the Railway Society has already done. He recommended an alternative route be explored to maintain historical significance in the downtown. 17. Kevin Knupp, 1003 West Mountain, noted the trolley tracks posed a safety hazard to bicyclists. 18. Chuck Wanner, 1242 West Mountain, noted his opposition to the contract and the trolley project. He stated he felt the Society was in default, suggested a longer input period resulting in a new contract and more time to reassess the situation. Councilmember Rutstein asked if all the components of Phase I were com- pleted and asked about the meaning of a contract. Mark Bassett replied that Phase I had been accepted by the City of Fort Collins and there is a bond for the additional landscaping. He added the temporary CO for the barn was obtained on August 21. He noted that the proposed completion date for Phase I was' September, 1982, but the Society had been given an extension at a September, 1982 work session. There was no deadline reimposed on Phase I. He noted the Society planned on oper- ating the car late this summer and anticipated the entire project could still be completed by December, 1985. Dave Wood noted a written contract was an agreement between the parties involved but does not mean that once signed and executed, the two parties are forever prevented from modifying the agreement and coming to some other consentual agreement. He stated that through bilateral negotiations at a number of meetings, agreement was reached to -change or modify the comple- tion schedule and the specifications of the job. He noted he felt it was not a principle of contract law to be able to declare the contract in default on the basis of 'the original contract provisions since it had been modified by mutual agreement. Councilmember Knezovich asked about Mr. Messineo's allegations that the original contract should have been adopted by ordinance rather than resolu- tion because of Charter provisions. City Attorney Huisjen stated this was a construction contract rather than a contract for services and the Charter provision did not apply. Councilmember Stoner asked if the contract should be considered in default I, if the project was not completed by December, 1985. -410- April 24, 1984 Dave Wood replied that issue needed to be addressed before December, 1985 and added the contract needed to reflect the reality of the situation. He suggested determining the period of time needed for the completion of each phase and noted that working against a date on the contract seemed rela- tively unimportant. He added that if nothing is done and the project is not finished by December, 1985, there would not have been timely completion as provided under the contract. Councilmember Clarke asked questions about the default provisions of the contract and questioned whether the City would have the right to take possession of the assets (stockpiled materials) of the Society in the event of default. City Attorney Huisjen replied that he did not think the materials would belong to the City until they had been installed or conveyed to the City in some way -- it would not be automatic. Mark Bassett noted the Society would have no use for the materials if default occurred or they abandoned the project. He again noted their intention to abide by the contract. He spoke to the value of the stock- piled materials and noted they would surrender them to be used towards the restoration of the medians in the event of default. Councilmember Clarke made a motion, seconded by Councilmember Ohlson, to adopt Resolution 84-76 and read the Resolution in full. City Attorney Huisjen reviewed the changes to the Resolution that had been agreed to by the attorneys involved. Councilmembers Clarke and Ohlson agreed the changes were acceptable to them and should be included in their original motion. Mark Bassett asked if .there would be a deadline to the negotiations on alternate routes. He questioned the removal of the mature trees and pointed out if they are not moved soon, they will have to be cut down. Dave Wood noted the language An paragraph 3 implied abandonment of the present proposed route. He felt the language was an attempt to placate the Society and to tell them their project as originally proposed was history. City Attorney Huisjen noted this Resolution did not preclude the Society from continuing with the contract. Ray Hale stated he did not feel the Resolution resolved the issue. He felt a clear decision was expected and suggested Council declare the Society in default and begin to negotiate a new agreement. He asked for a clear definitive statement of either support or opposition to the project and stated he felt both sides would accept the consequences. -411- April 24, 1984 Mark Korb noted the Resolution did nothing to clarify the language of the existing contract. Bud McMahon, 1319 West Mountain, asked for an explanation of the moving of the switch from Mountain and Roosevelt to 30 feet east of Mountain and Roosevelt and expressed doubt the Society could complete Phase III by December 31, 1984. Councilmember Clarke explained the switch was not being moved but because it is a left hand switch, enough straight track needs to be constructed to the east of the switch to allow the car onto the straight track and then back west to utilize the switch. Carol Podmore noted she had hoped an option finding the contract to be in default would be considered at this meeting. She noted that a statement had been made by Councilmember Stoner indicating the contract could not be legally declared in default because Council had been given legal advice that this was not possible. She asked what the point of this meeting was if that was the case. Councilmember Stoner responded that Council had been given a legal opinion suggesting the contract was not in default. He noted he was prepared to hear testimony and evidence on both sides and then determine whether the contract is in default. He added that the Resolution to be considered suggests the contract is valid but that Council is attempting to tighten it up. Mayor Horak noted the legal advice given had been varied and had explained what the rights, responsibilities, and options were. This did not con- strain Council from making either decision. Councilmember Clarke spoke of the reasons for the Society being behind schedule. He noted the Society had been progressing at a better rate but that Council would be keeping a close watch on their progress until Decem- ber, 1984. He stated if Phase III was not completed by then, there might be reason to find them in default. He still favored a downtown route for the trolley. 'Councilmember Knezovich noted the contract needed to be improved and that this Resolution was a step forward. If the guidelines were not met, Council would be compelled to declare default. He stated he felt City resources should not be spent on the project. Councilmember Rutstein expressed concern about the dates in Exhibit A of the contract noting she felt they were important. She asked what would be done if the project was not totally completed on, December 31, 1985 and -412- April 24, 1984 stated she would prefer to make the decision at this time and accept the consequences from either side. She stated a preference for declaring default at this time and to have the City Manager look for a route that is acceptable to the greatest majority. Councilmember Elliott cited the obstacles put in front of the Society and stated he did not feel they were in default. He noted he felt the trolley fits well in Fort Collins and .that the Resolution sets a specific time frame and puts the project into focus. Councilmember Ohlson concluded the contract could not be declared in default at this time. He noted he was not in favor of a West Mountain route and preferred a downtown route rather than a City Park location. Councilmember Stoner stated .he could not find the contract in default and stated he felt it was a show of confidence that the Society would agree to the new time limits and restraints placed on them. Mayor Horak stated no official action had been taken in 1982 to modify the contract. He noted he was adamantly against the project going into City Park and that he would have preferred the other Resolution declaring the project to be in default. He noted he would vote against this Resolution. The vote on Councilmember Clarke's motion to adopt Resolution 84-76 was as follows: Yeas: Councilmembers Clarke, Elliott, Knezovich, Ohlson, and Stoner. Nays: Councilmembers Horak and Rutstein. THE MOTION CARRIED. Adjournment Councilmember Stoner made a motion, seconded by Councilmember Rutstein, to adjourn the meeting. Yeas: Councilmembers Clarke, Elliott, Horak, Knezo- vich, Ohlson, Rutstein, and Stoner. Nays: None. THE MOTION CARRIED. The meeting adjourned at 11:50 p.m. A TEST: City Clerk .'e'r"".."y " Mayor -413-