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HomeMy WebLinkAbout1995-114-07/25/1995-1989 CITY ELECTION CHOICES 95 CIVIL ACTION 94 CV 333-3 FISCHER AND HILL LAWSUIT ORDINANCE NO. 9, 198 RESOLUTION 95-114 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROVING A SETTLEMENT AGREEMENT PERTAINING TO CIVIL ACTION NO. 94 CV 333-3 WHEREAS, on January 3, 1989, the Council of the City of Fort Collins ("the Council") submitted to the voters Ordinance No. 9, 1989 ("the Ordinance"), which was subsequently adopted by the voters at a March 7, 1989, City election; and WHEREAS, the Ordinance provided for the imposition of an additional quarter-cent sales and use tax for the purpose of raising revenue for the City's Choices 95 capital improvement projects; and WHEREAS, among the projects proposed for construction under the Ordinance in the Street/Transportation Capital Projects category were two projects known as "Shields, Laurel to Prospect" ("the Street Project") and the"Prospect/Shields Intersection" ("the Intersection Project'), hereinafter jointly referred to as "the Shields Street Project"; and WHEREAS,in constructing the Shields Street Project,the Council determined that two right turn lanes referenced in the Choices 95 Executive Committee Report should be eliminated; and WHEREAS, certain citizens of the City of Fort Collins (the "Plaintiffs") objected to the elimination of said right turn lanes and commenced a civil action in the District Court for Larimer County, Colorado, Civil Action No. 94 CV 333-3 ("the Lawsuit"), seeking a determination that the elimination of the same was contrary to the requirements of the Ordinance and seeking an order of the Court requiring their construction; and WHEREAS, after a trial on the merits of the Plaintiffs' claims, the trial court entered its Findings, Conclusions of Law, and Order dated June 16, 1995 ("the Judgment") granting the relief sought by the Plaintiffs; and WHEREAS, the period of time within which the City must file a notice of appeal of the Judgment has not yet expired; and WHEREAS, in lieu of the filing of a notice of appeal of the judgment, the parties have explored the possibility of a settlement of the lawsuit; and WHEREAS, the parties agree that it would be in their mutual best interest to resolve the matters raised in the Lawsuit rather than continuing to litigate the same. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS, that the City Manager and City Attorney are hereby authorized to execute the agreement attached hereto as Exhibit "A" and incorporated herein by this reference, with such minor modifications in form as may be acceptable to the City Manager and the City Attorney, and to execute such court pleadings and other documents and to take such other action as may be necessary to fully implement and perform the obligations of the City under said Agreement. Passed and adopted at an adjourned meeting of the Co ' of the City of F Collins held this 25th day of July, A.D. 1995. yor ATTEST: �a City Clerk AGREEMENT THIS AGREEMENT is made and entered into this day of July, 1995, by and between GENE FISCHER, MARYLYNN FISCIIER, and ALDEN T. HILL (hereinafter referred to as "the Plaintiffs") and THE CITY OF FORT COLLINS, COLORADO, a municipal corporation (hereinafter referred to as "the Defendant") . W I T N E S S E T H WHEREAS, on January 3 , 1989, the Council of the City of Fort Collins (`the Council") submitted to the voters Ordinance Nu. 9, 1989 ("the Ordinance") , which was subsequently adopted by the voters at a March 7, 1989, City election; and WHEREAS, the Ordinance provided for the imposition of an additional quarter-cent sales and use tax for the purpose of raising revenue for the Defendant's Choices 95 capital improvement projects; and WHEREAS, among the projects proposed for construction under the Ordinance in the Street/Transportation Capital Projects category were two projects known as "Shields, Laurel to Prospect" ("the Street Project") and the "Prospect/Shields Intersection" ("the Intersection Project") , hereinafter jointly referred to as "the Shields Street Project"; and WHEREAS, in constructing the Shields Street Project, the Council determined that two right turn lanes referenced in the Choices 95 Executive Committee Report should be eliminated; and WHEREAS, the Plaintiffs objected to the elimination of said right turn lanes and commenced a civil action in the District Court for Larimer County, Colorado, Civil Action No. 94 CV 333-3 ("the Lawsuit") , seeking a determination that the elimination of the same was contrary to the requirements of the Ordinance and seeking an order of the Court requiring their construction; and WHEREAS, after a trial on the merits of the Plaintiffs ' claims, the trial court entered its Findings, Conclusions of Law, and Order dated June 16, 1995 ("the Judgment") granting the relief sought by the Plaintiffs; and WHEREAS, the period of time within which the Defendant must file a notice of appeal of the Judgment has not yet expired; and WHEREAS, the parties agree that it would be in their mutual best interest to resolve the matters raised in the Lawsuit rather than continuing to litigate the same. NOW, THEREFORE, in consideration of the mutual promises hereinbelow contained and other good and valuable consideration, EXHIBIT A the receipt and adequacy of which are hereby acknowledged by the parties, it is agreed as follows: 1. Construction of the Right Turn Lanes. a. Shields and Prospect - The Defendant agrees to construct a right turn lane at the intersection of Prospect Road and Shields Street for southbound traffic on Shields Street. Said right turn lane shall be constructed by the Defendant, utilizing revenues from the Choices 95 quarter-cent sales and use tax, with said construction to commence in the Spring of 1996 and to be completed no later than August 31, 1996, barring weather delays or other unforeseen circumstances. Said right turn lane shall be constructed in such location and according to such design as the Defendant may, in its sole discretion, determine Lo be necessary and appropriate. b. Shields and Laurel - The parties acknowledge that the intersection of Laurel Street and Shields Street is presently functioning at a level of service "B," according to commonly accepted traffic engineering standards, and that the construction of a right turn lane for northbound traffic on Shields Street at such intersection may be delayed until such time, if at all, that said right turn lane becomes necessary to prevent the level of service at such intersection from falling below a level of service "D". Therefore, the Defendant agrees that it will annually mon-1torthe- flow- of traffic at such- intersection- through - December 31, 1999. In the event that, during said period of time, such monitoring indicates, in the judgment of the City Traffic Engineer and a qualified traffic engineer selected by the Plaintiffs, that the construction of the foregoing right lane is necessary to prevent any traffic movement at the intersection from falling below a level of service "D," the Defendant shall construct said right turn lane within one (1) year from the date of such determination according to such design as the Defendant may determine to be appropriate and necessary. The traffic flow monitoring to be conducted by the Defendant will be performed for two (2) consecutive days during any portion of each of the four (4) years referenced above during which Colorado State University is in full session, with the last such monitoring to occur after September 15, 1999 . In order to provide funding for the possible construction of said right turn lane, the Defendant will, upon - 2 of 5 - execution of this Agreement, place into a separate account of the Defendant, the sum of Eighty Thousand Dollars ($80, 000. 00) of revenue from the Choices 95 sales and use tax, which amount is estimated to be sufficient to construct said right turn lane. In the event that, at the conclusion of the above-referenced monitoring period, the construction of the right turn lane has not proved to be necessary according to the standards hereinabove described, then the funds held by the Defendant under the provisions of this paragraph shall be released, the Defendant shall have no further obligation hereunder with regard to the construction of a right turn lane at the intersection of Shields Street and Laurel Street and the Defendant shall be entitled thereafter to use said funds as permitted under the Ordinance. 2 . Vacation of the Judgment. Upon the execution of this Agreement, the parties agree to file with the Court in the Lawsuit a stipulated Motion to Vacate Judgment whereby the parties will jointly move the Court to vacate the judgment previously entered herein and to dismiss the Lawsuit with prejudice. The parties' rights and obligations under this Agreement are expressly contingent upon the Court ' s entry of an order vacating said judgment on or before July 28, 1995. In the event that said order has not been executed by the Court on or before said date, all rights and obligations of the parties under this Agreement shall terminate, the Agreement shall be of no further force and effect, and the parties will immediately file a stipulated motion with the Court to extend the period of time within which a Notice of Appeal must be filed by the Defendant in the Lawsuit through August 10, 1995. 3 . Payment of Costs. Upon the execution of this Agreement and the vacation of the Judgment as provided in Section 2 above, the Defendant shall pay to the Plaintiffs the sum of Four Thousand Seven Hundred Dollars ($4 , 700. 00) as payment for costs actually incurred by the Plaintiffs in the prosecution of the Lawsuit. Said amount shall be in full satisfaction and accord of all amounts claimed by the Plaintiffs in connection with the Lawsuit or the subject matter of this Agreement. Each party shall pay its own attorneys fees in connection with the Lawsuit. 4 . Governing Law. It is expressly understood and agreed by and between the parties hereto that this Agreement is made in and shall be construed and interpreted in accordance with the laws of the State of Colorado. 5. Construction. This Agreement shall be construed according to its fair meaning, and as if prepared by both of the parties hereto, and shall be deemed to be and contain the entire understanding and agreement between the parties hereto. There shall be deemed to be no other terms, conditions, promises, - 3 of 5 - understandings, statements, or representations, expressed or implied, concerning this Agreement unless set forth in writing and signed by all the parties hereto. Further each of the parties hereto acknowledges that they each have cooperated in the drafting and preparation of this Agreement and therefore any construction to be made of this Agreement shall not be construed against any party on the basis that such parry was the drafter. 6. Headings. Pare. lraph headings used herein are for convenience of reference and shall in no way define or limit the scope or intent of any provision under this Agreement. 7 . Binding Effect. '.Chis Agreement shall be binding upon and inure to the benefit of tkae parties hereto and their respective heirs, administrators, per aonai representatives, suix.ass�csrs, and- assigns. 8 . Remedies. Each acid every term and condition hereof shall be deemed to be a material element of this Agreement. In the event that either party should fail or refuse to perform according to the terms of this Agreement, su(:h party may be declared in default. In the event of such default:, the non-defaulting party shall be entitled to commence an action for specific performance of this Agreement or for damages, ou both, and to such other relief as may be available at law or in equity. The defaulting party shall be liable to the nondefaulting party' s reasonable attorney ' s fees and costs incurred because of the default. LN- W�T_NES-& WHEREOF. the- parties- hiaretci have_ aignad_ this Agreement as of the day and year first above written. THE CITY OF FORT COLLINS, COLORADO, A Municipal Corporation By: Interim City Manager ATTEST: City Clerk APPROVED AS TO FORM: City Attorney - 4 of 5 Gene Fischer Marylynn Fischer Alden T. Hill - 5 of 5 -