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
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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
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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,
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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
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Gene Fischer
Marylynn Fischer
Alden T. Hill
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