HomeMy WebLinkAboutMINUTES-11/21/1989-RegularNovember 21, 1989
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November 21, 1989
COUNCIL OF THE CITY OF FORT COLLINS, COLORADO
Council -Manager Form of Government
Regular Meeting - 6:30 p.m.
A regular meeting of the Council of the City of Fort Collins was held on
Tuesday, November 21, 1989, at 6:30 p.m. in the Council Chambers in the
City of Fort Collins City Hall. Roll call was answered by the following
Councilmembers: Azari, Edwards, Horak, Kirkpatrick, Mabry, and Winokur.
Councilmembers Absent
Staff Members Present
Maxey
Burkett, Krajicek, Roy
Citizen Participation
Jim Creeden, P.O. Box 1022, Chairman of COPS, commented on Council's
sentencing recommendations and on the Poudre Fire Authority practice of
requiring two off -duty firefighters stand-by at the Colorado State
University Equine Center when there are more than 150 in attendance.
Tom Inscho, Innovative Companies, followed -up on the meetings with
neighborhood groups regarding the environmental concerns associated with
Innovative Companies and stated that a compliance agreement was close to
being reached to insure and maintain good neighbor activity.
Robert Kopitzke, Harmony Half Acres Homeowners Association, described the
meetings with representatives from Innovative Companies and noted the
progress that had been made regarding the environmental issues.
Lucy Tomky, Golden Meadows Homeowners Association, reported on the progress
that had been made towards resolving the environmental concerns.
Agenda Review: City Manager
City Manager Burkett noted that Item #6 A., Second Reading of Ordinance No.
137, 1989 Annexing Approximately 3.6 acres Known as Rohrbacker Annexation.
and Item #6 B., Second Reading of Ordinance No. 138, 1989 Zoning
Approximately 3.6 acres Known as Rohrbacker Annexation, into the C,
Commercial District, with a planned unit development condition, were
postponed to December 5.
Jim Creeden, P.O. Box 1022, requested Item #10, Second Reading of Ordinance
No. 146, 1989, Appropriating Prior Year Reserves for 1989 Benefits Fund
Expenses, Item #11, Items Relating to the Orchard Second Annexation and
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November 21, 1989
Zoning, and Item #12, Items Relating to the Quail Hollow Annexation and
Zoning, be pulled from the Consent Agenda.
Consent Calendar
This Calendar is intended to allow the City Council to spend its time and
energy on the important items on a lengthy agenda. Staff recommends
approval of the Consent Calendar. Anyone may request an item on this
calendar be "pulled" off the Consent Calendar and considered separately.
Agenda items pulled from the Consent Calendar will be considered separately
under Agenda Item #17, Pulled Consent Items.
5. Consider approval of the minutes of the regular meeting of November
7.
6. Items Relating to Rohrbacker Annexation.
7.
A. Second Reading of Ordinance No. 137, 1989 Annexing Approximately
3.6 acres Known as Rohrbacker Annexation.
B. Second Reading of Ordinance No. 138, 1989 Zoning Approximately
3.6 acres Known as Rohrbacker Annexation, into the C, Commercial
District, with a planned unit development condition.
On October 17, Council unanimously adopted Resolution 89-176 Setting
Forth Findings of Fact and Determinations Regarding the Rohrbacker
Annexation.
On October 17, Council also unanimously adopted on First Reading
Ordinance No. 137, 1989 and Ordinance No. 138, 1989, annexing and
zoning approximately 3.6 acres, located on East Magnolia Court, west
of Link Lane and north of East Mulberry. The requested zoning is the
C, Commercial District.
APPLICANT: Rosalie Rohrbacker OWNER: Same
430 West Myrtle
Fort Collins, CO 80524
Several funds require supplemental appropriations for 1989
expenditures. This Ordinance, which was unanimously adopted on First
Reading on November 7, makes a number of appropriations which need to
be made before the end of the current budget year.
Included in this ordinance are appropriations for any unforeseen
expenditures which may have occurred during the year or the addition
of unanticipated revenue the City has received. I
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November 21, 1989
8. Second Reading of Ordinance No. 141, 1989 Authorizing the Purchasing
Anent to Enter Into a Contract for Services For a Term of Three (3)
Years With Poudre Valley Hospital.
This ordinance, which was unanimously adopted on First Reading on
November 7, authorizes the Director of Purchasing & Risk Management
to enter into a three-year contract with Poudre Valley Hospital for
the medical treatment of employees injured on the job.
Second Reading of Ordinance No. 142, 1989, Rezoning 21.5 Acres of the
Timberline Farm Master Plan to I-P, Industrial Park.
This ordinance, which was unanimously adopted on First Reading on
November 7, authorizes the rezoning of 19.8 acres from R-L-P, Low
Density Planned Residential, to I-P, Industrial Park, and 1.7 acres
from T, Transitional, to I-P, Industrial Park located in the
Timberline Farm Master Plan. The total of 21.5 acres are located at
the northeast corner of Harmony Road and Timberline Road. The
rezoning to I-P, Industrial Park, is conditioned on all development
proceeding as a P.U.D. under the criteria of the Land Development
Guidance System.
10. Second Reading of Ordinance No. 146, 1989, Appropriating Prior Year
Reserves for 1989 Benefits Fund Expenses.
' The Benefits Fund is currently expected to be over budget during 1989
due to increased costs and increased claims experienced in the area
of medical insurance. This ordinance, which was unanimously adopted
on First Reading on November 7, appropriates $424,894 from Prior Year
Reserves for the purpose of meeting anticipated expenses in the
Benefits Fund.
11. Items Relating to the Orchard Second Annexation and Zoning.
A. Resolution 89-202 Setting Forth Findings of Fact and
Determinations Regarding the Orchard Second Annexation.
Hearing and First Reading of Ordinance No. 152, 1989, Annexing
Approximately 5.95 Acres, Known as the Orchard Second Annexation.
Hearing and First Reading of Ordinance No. 147, 1989, Zoning
Approximately 5.95 Acres, Known as the Orchard Second Annexation,
into the R-L-P, Low Density Planned Residential District.
This is a request to annex and zone approximately 5.95 acres located
south of Harmony Road and east of Shields Street. The requested
zoning is the R-L-P, Low Density Planned Residential, Zoning
District. The property is presently undeveloped. The property is
currently zoned FA-1, Farming, .in the County. This is a voluntary
annexation.
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November 21, 1989
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13.
APPLICANT: Nordic Construction OWNER: Nordic Construction
c/o Cityscape Urban Design 309 West Harmony Road
3030 S. College Avenue, #20 Fort Collins, CO 80526
Fort Collins, CO 80525
Items Relating to the Quail Hollow Annexation and Zoning.
A. Resolution 89-203 Setting Forth Findings of Fact and
Determinations Regarding the Quail Hollow Annexation.
Hearing and First Reading of Ordinance No. 148, 1989, Annexing
Approximately 80 Acres, Known as the Quail Hollow Annexation.
Hearing and First Reading of Ordinance No. 149, 1989, Zoning
Approximately 67 Acres of the Quail Hollow Annexation into the
R-L-P, Low Density Planned Residential District, and
Approximately 13 Acres into the R-F, Foothills Residential
District.
This is a request to annex and zone approximately 80.0 acres located
south of the Quail Hollow Subdivision, south of Drake Road. The
requested zoning is in two parts: (1) approximately 67 acres of
R-L-P, Low Density Planned Residential, on the eastern portion of the
property; and (2) approximately 13 acres of R-F, Foothills
Residential District on the western portion of the property. The
property is presently undeveloped. The property is currently zoned
FA-1, Farming, in the County. This is a voluntary annexation.
APPLICANT: D. Jensen Enterprises OWNER: D Jensen Enterprises
c/o Cityscape Urban Design P.O. Box 1007
3030 S. College Ave. #200 Fort Collins, CO 80522
Fort Collins, CO 80525
Case.
Developments within the UGA which are not eligible for annexation
into the city are required to satisfy several phasing criteria in
order to be approved. The proposed development on the subject
property satisfies the public water and contiguity requirements of
the UGA Agreement. The applicant has requested waivers to the public
sewer and off -site street construction requirements. The financial
impact of waiving the requirement to construct or fully improve
off -site streets to the standards indicated on the City's Master
Street Plan will be mitigated by charging a fee of $9,560 to be
collected by Larimer County at the time of building permit issuance.
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November 21, 1989
' 14. Resolution 89-205 Approving the Purchase of Electrical Capacitors and
Current Limiting Fuses.
Council approval is required for a case not requiring bidding
purchase exceeding $20,000. Staff is requesting a purchase from
Westinghouse Electric Supply Company for seventy-eight (78)
Westinghouse capacitors and forty-two (42) Westinghouse current
limiting fuses in a total amount of $39,846.
These items will replace outdated equipment in existing substation
sites throughout the City. The replacement units will be integrated
into existing device assemblies and are required to match the
existing line-up in physical and electrical characteristics.
Other known components (McGraw Edison and General Electric) have been
studied but their physical dimensions prevent them from being
compatible with existing assemblies. At this time, there are no
other known manufacturers for these items.
This case not requiring bidding purchase based on a particular
individual usage has been reviewed and approved by the City Manager.
15. Resolution 89-206 Making an Appointment to the Housing Authority.
A vacancy currently exists on the Housing Authority due to the
' appointment of John Kefalas to fill the vacancy left .by the
resignation of Lora Beerbower. Mr. Kefalas was an alternate on the
Housing Authority prior to being appointed to fill the regular
position.
Advertisements were placed in October and former and current
tenants/clients of the Housing Authority were encouraged to apply.
Councilmembers Edwards and Kirkpatrick conducted interviews on
November 8 and are recommending that Rose Ramirez be appointed to
fill the alternate position with a term to expire July 1, 1991.
16. Routine Deeds and Easements.
a. Powerline easement from Janet Elaine Perry, 208 S. Sherwood,
needed to underground existing overhead electric services.
Monetary consideration: $10.
b. Powerline easement from Leitha E. Bowman, 125 S. Sherwood, needed
to underground existing overhead 'electric services. Monetary
consideration: $10.
c. Deed of dedication from Gunter Preuss, Gloria Preuss, K. Bill
Tiley and Floyd W. Deines for rededicating,a utility easement to
be an easement for utilities and drainage facilities. Monetary
consideration: $0.
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November 21, 1989
d. Deeds of dedication from CSRB, Inc. for sidewalk easements. The '
easements are needed for the developer of the Ponderosa Park
P.U.D, CSRB, Inc., to construct sidewalk in connection with
street improvements required for the development. Monetary
consideration: $0.
e. Easement from the State of Colorado for Water Meter/Valve
Installation. Monetary consideration: $250 Administrative
Charge.
In the fall of 1988, an agreement between the City and the West
Fort Collins Water District was executed whereby a realignment of
service in the area was approved. The enclosed easement allows
the City to install a water meter so that treated water provided
to the district can be calculated.
Ordinances on Second Reading were read by title by Wanda Krajicek, City
Clerk.
Item #6. A. Second Reading of Ordinance No. 137, 1989 Annexing Approxi-
mately 3.6 acres Known as Rohrbacker Annexation.
Item #7.
Item #8.
Item #9
Item #10.
B. Second Reading of Ordinance No. 138, 1989 Zoning Approximately
3.6 acres Known as Rohrbacker Annexation, into the C, Com-
mercial District, with a planned unit development condition.
Second Reading of Ordinance No. 142, 1989, Rezoning 21.5 Acres of
the Timberline Farm Master Plan to I-P, Industrial Park.
Ordinances on First Reading were read by title by Wanda Krajicek, City
Clerk.
Item #11. B.
C.
trict.
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November 21, 1989
Item #12. B.
C.
Councilmember Azari made a motion, seconded by Councilmember Edwards, to
adopt and approve all items not removed from the Consent Calendar. Yeas:
Councilmembers Azari, Edwards, Horak, Kirkpatrick, Mabry, and Winokur.
Nays: None.
THE MOTION CARRIED.
Ordinance No. 146, 1989, Appropriating
Prior Year Reserves for 1989 Benefits
Fund Expenses. Adopted on Second Reading
Following is staff's memorandum on this item:
"FINANCIAL IMPACT
The Benefits Fund is currently expected to be over budget during 1989 due
' to increased costs and increased claims experienced in the area of medical
insurance. This ordinance, which was unanimously adopted on First Reading
on November 7, appropriates $424,894 from Prior Year Reserves for the
purpose of meeting anticipated expenses in the Benefits Fund."
Councilmember Kirkpatrick made a motion, seconded by Councilmember Edwards,
to adopt Ordinance No. 146, 1989 on Second Reading.
Jim Creeden, P.O. Box 1022, asked staff to survey and compare benefits
offered to employees in surrounding communities.
The vote on Councilmember Kirkpatrick's motion to adopt Ordinance No. 146,
1989 on Second Reading was as follows: Yeas: Councilmembers Azari,
Edwards, Horak, Kirkpatrick, Mabry, and Winokur. Nays: None.
THE MOTION CARRIED.
Items Relating to the Orchard
Second Annexation and Zoning
Following is staff's memorandum on this item:
"EXECUTIVE SUMMARY
IA. Resolution 89-202 Setting Forth Findings of Fact and Determinations
Regarding the Orchard Second Annexation.
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November 21, 1989
Hearing and First Reading of Ordinance No. 146, 1989, Annexing '
Approximately 5.95 Acres, Known as the Orchard Second Annexation.
Hearing and First Reading of Ordinance No. 147, 1989, Zoning
Approximately 5.95 Acres, Known as the Orchard Second Annexation, into
the R-L-P, Low Density Planned Residential District.
This is a request to annex and zone approximately 5.95 acres located south
of Harmony Road and east of Shields Street. The requested zoning is the
R-L-P, Low Density Planned Residential, Zoning District. The property is
presently undeveloped. The property is currently zoned FA-1, Farming, in
the County. This is a voluntary annexation.
APPLICANT: Nordic Construction OWNER: Nordic Construction
c/o Cityscape Urban Design 309 West Harmony Road
3030 S. College Avenue, #20 Fort Collins, CO 80526
Fort Collins, CO 80525
BACKGROUND
The applicant and owner, Nordic Construction, has submitted a written
petition requesting annexation of approximately 5.95 acres located south of
Harmony Road and east of Shields Street. The requested zoning is R-L-P,
Low Density Planned Residential, Zoning District. The property is
presently undeveloped. The property is currently zoned FA-1, Farming, in
the County. This is a voluntary annexation. Any existing commercial signs
on the property will have to conform to the City's Sign Code at the
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conclusion of a five year amortization period.
The property is located within the Urban Growth Area.
According to policies and agreements between the City of Fort Collins and
Larimer County contained in the INTERGOVERNMENTAL AGREEMENT FOR THE FORT
COLLINS URBAN GROWTH AREA, the City will consider the annexation of
property in the UGA when the property is eligible for annexation according
to state statutes. The property gains the required 1/6 contiguity to
existing city limits from a common boundary with the Orchard Annexation to
the west and the Voc-Tech Smith Annexation to the north.
The surrounding zoning and existing land uses are as follows:
N: R-L-P, Single Family homes.
E: FA-1, Farming, large lot single family homes.
S: FA-1, Farming, large lot single family homes.
W: R-L-P, single family homes.
The requested zoning for this annexation is R-L-P, Low Density Planned
Residential District. The R-L-P District designation is for areas planned
as a unit to provide variation in use, density and building placement. The
property will probably eventually develop with detached 'single-family ,
homes. According to the City's LAND USE POLICIES PLAN, low density
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November 21, 1989
residential uses should locate in areas which have easy access to existing
or planned neighborhood and community/regional shopping centers, have easy
access to major employment centers, are within walking distance to an
existing or planned elementary school, are within walking distance to an
existing or planned neighborhood park and within easy access to a community
park, and in areas in which a collector street affords the primary access.
This site addresses these Iocational policies.
Findings
1. The annexation of this area is consistent with the policies and
agreements between Larimer County and the City of Fort Collins
contained in the INTERGOVERNMENTAL AGREEMENT FOR THE FORT COLLINS URBAN
GROWTH AREA.
2. The area meets all criteria included in state statutes to qualify for a
voluntary annexation to the City of Fort Collins.
3. On October 17, 1989, the City Council approved a resolution which
accepts the annexation petition and determines that the petition is in
compliance with state statutes. The resolution also initiates the
annexation process for this property by establishing the date, time and
place when a public hearing will be held regarding annexing and zoning
the area.
' 4. The requested R-L-P, Low Density Planned Residential District is in
conformance with the policies of the City's Comprehensive Plan.
Staff recommends approval of the annexation and requested zoning.
Planning and Zonina Board:
The Planning and Zoning Board, at its regular monthly meeting on October
23, 1989, voted 7-0 to recommend approval of the annexation and requested
zoning as part of the Board's Consent Agenda."
Councilmember Azari made a motion, seconded by Councilmember Kirkpatrick,
to adopt Resolution 89-202.
Jim Creeden, P.O. Box 1022, commented on the amount of land being annexed
and its impact on the Police Department.
The vote on Councilmember Azari's motion to adopt Resolution 89-202 was as
follows: Yeas: Councilmembers Azari, Edwards, Horak, Kirkpatrick, Mabry,
and Winokur. Nays: None.
THE MOTION CARRIED.
Councilmember Mabry made a motion, seconded by Councilmember Edwards, to
adopt Ordinance No. 152, 1989 on First Reading. Yeas: Councilmembers
' Azari, Edwards, Horak, Kirkpatrick, Mabry, and Winokur. Nays: None.
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November 21, 1989
THE MOTION CARRIED. I
Councilmember Mabry made a motion, seconded by Councilmember Kirkpatrick,
to adopt Ordinance No. 147, 1989 on First Reading. Yeas: Councilmembers
Azari, Edwards, Horak, Kirkpatrick, Mabry, and Winokur. Nays: None.
THE MOTION CARRIED.
Items Relating to the Quail
Hollow Annexation and Zoning
Following is staff's memorandum on this item:
"EXECUTIVE SUMMARY
Resolution 89-203 Setting Forth Findings of Fact and Determinations
Regarding the Quail Hollow Annexation.
Hearing and First Reading of Ordinance No. 148, 1989, Annexing
Approximately 80 Acres, Known as the Quail Hollow Annexation.
C. Hearing and First Reading of Ordinance No. 149, 1989, Zoning
Approximately 67 Acres of the Quail Hollow Annexation into the R-L-P,
Low Density Planned Residential District, and Approximately 13 Acres
into the R-F, Foothills Residential District.
This is a request to annex and zone approximately 80.0 acres located south
of the Quail Hollow Subdivision, south of Drake Road. The requested zoning
is in two parts: (1) approximately 67 acres of R-L-P, Low Density Planned
Residential, on the eastern portion of the property; and (2) approximately
13 acres of R-F, Foothills Residential District on the western portion of
the property. The property is presently undeveloped. The property is
currently zoned FA-1, Farming, in the County. This is a voluntary
annexation.
APPLICANT: D. Jensen Enterprises OWNER: D Jensen Enterprises
c/o Cityscape Urban Design P.O. Box 1007
3030 S. College Ave. #200 Fort Collins, CO 80522
Fort Collins, CO 80525
BACKGROUND
The applicant and owner, D. Jensen Enterprises, has submitted a written
petition requesting annexation of approximately 80 acres located south of
the Quail Hollow Subdivision, south of Drake Road. The requested zoning is
in two parts: (1) approximately 67 acres of R-L-P, Low Density Planned
Residential, on the eastern portion of the property; and (2) approximately
13 acres of R-F, Foothills Residential District on the western portion of
the property. The property is presently undeveloped. The ,property is I
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November 21, 1989
' currently zoned FA-1, Farming, in the County. This is a voluntary
annexation.
Any existing commercial signs on the property will have to conform to the
City's Sign Code at the conclusion of a five year amortization period.
The property is located within the Fort Collins Urban Growth Area.
According to policies and agreements between the City of Fort Collins and
Larimer County contained in the INTERGOVERNMENTAL AGREEMENT FOR THE FORT
COLLINS URBAN GROWTH AREA, the City will consider the annexation of
property in the UGA when the property is eligible for annexation according
to state statutes. The property gains the required 116 contiguity to
existing city limits from a common boundary with the Dixon Creek Annexation
to the north. The surrounding zoning and existing land uses are as
follows:
N: R-P, Planned Residential Zoning (with a PUD condition), the Quail
Hollow Subdivision.
E: FA-1, Farming, large lot single-family
S: FA-1, Farming, undeveloped.
W: R-F, Foothills Residential, City -owned open space.
The requested zoning for this annexation is in two parts: (1)
approximately 67 acres of R-L-P, Low Density Planned Residential, on the
eastern portion of the property; and (2) approximately 13 acres of R-F,
' Foothills Residential District on the western portion of the property. The
R-L-P District designation is for areas planned as a unit to provide
variation in use, density and building placement. The R-F District
designation is for low density residential areas located near the
Foothills. The property will probably eventually develop with detached
single-family homes. According to the City's LAND USE POLICIES PLAN, low
density residential uses should locate in areas which have easy access to
existing or planned neighborhood and community/regional shopping centers,
which have easy access to major employment centers, are within walking
distance to an existing or planned elementary school, are within easy
walking distance to an existing or planned neighborhood park (the City
recently purchased 19.68 acres of the eastern portion of the property for a
neighborhood park) and within easy access to a community park, and in which
a collector street affords the major access. This site addresses these
locational policies.
The dividing line between the proposed R-L-P and R-F zoned areas is the
center -line of the re-routed Overland Trail. Following the foothills
policies and City Council decisions on the Stuart Annexation and the Noel
Annexation, Overland Trail can make a clear break between urban uses and
urban residential densities to the east and low density residential
development to the west.
1. The annexation of this area is consistent with the policies and
agreements between Larimer County and the City of Fort Collins
' contained in the INTERGOVERNMENTAL AGREEMENT FOR THE FORT COLLINS URBAN
GROWTH AREA.
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November 21, 1989
2. The area meets all criteria included in state statutes to qualify for a
,
voluntary annexation to the City of Fort Collins.
3. On October 17, 1989, the City Council approved a resolution which
accepts the annexation petition and determines that the petition is in
compliance with state statutes. The resolution also initiates the
annexation process for this property by establishing the date, time and
place when a public hearing will be held regarding annexing and zoning
the area.
4. The requested R-L-P and R-F Districts are in conformance with the
policies of the City's Comprehensive Plan.
Planning and Zoning Board
The Planning and Zoning Board, at its regular meeting of October 23, 1989,
voted 7-0 to recommend approval of the requested annexation and zoning
requests. A copy of the Board's minutes is attached."
Councilmember Azari made a motion, seconded by Councilmember Kirkpatrick,
to adopt Resolution 89-203. Yeas: Councilmembers Azari, Edwards, Horak,
Kirkpatrick, Mabry, and Winokur. Nays: None.
THE MOTION CARRIED.
Councilmember Kirkpatrick made a motion, seconded by Councilmember Azari,
to adopt Ordinance No. 148, 1989 on Second Reading. Yeas: Councilmembers
Azari, Edwards, Horak, Kirkpatrick, Mabry, and Winokur. Nays: None.
THE MOTION CARRIED.
Councilmember Edwards made a motion, seconded by Councilmember Horak, to
adopt Ordinance No. 149, 1989 on Second Reading. Yeas: Councilmembers
Azari, Edwards, Horak, Kirkpatrick, Mabry, and Winokur. Nays: None.
THE MOTION CARRIED.
Ordinance No. 143, 1989, Appropriating
Prior Year Reserves in the Street
Oversizing Fund and Authorizing the
Transfer of Appropriated Amounts to the
Debt Service Fund. Adopted on Second Reading
Following is staff's memorandum on this item:
"FINANCIAL IMPACT
This Ordinance was adopted 6-0 on First Reading on November 7.
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November 21, 1989
I�
Council approved appropriations in 1988 for the payment of Lemay/Harmony
SID #78, Phase II, Street Oversizing Revenue Note. Due to settlement
negotiations, the note was not paid in 1988, but was paid in September
1989. Since the 1988 appropriations lapsed at the end of the year, the
amounts have to be re -appropriated in 1989.
Principal $257,400
Interest 77,632
Total Appropriation $335,032"
Councilmember Mabry withdrew from discussion and vote on this item due to a
perceived conflict of interest.
Councilmember Azari made a motion, seconded by Councilmember Edwards, to
adopt Ordinance No. 143, 1989 on Second Reading. Yeas: Councilmembers
Azari, Edwards, Horak, Kirkpatrick, and Winokur. Nays: None.
(Councilmember Mabry withdrawn)
THE MOTION CARRIED.
Ordinance No. 144, 1989, Authorizing
The Issuance of Industrial Development
Revenue Bonds of the City of Fort
Collins for the ESAB Automation,
Inc.. Project, Postponed to December 5
Following is staff's memorandum on this item:
"FINANCIAL IMPACT
On August 1, 1989, the Council adopted the Inducement Resolution for the
ESAB Automation, Inc. Project in the amount of $6,730,000. This ordinance,
which was adopted 6-0 on First Reading on November 7, authorizes the
issuance of the industrial development revenue bonds to be used to finance
the construction of the improvements for the project.
The improvements envisioned in this project include the acquisition of
land, the construction and equipping of a facility to be located along
Harmony Road at Innovation Drive. The project facilities are expected to
contain approximately 120,000 square feet of space. The project is
privately owned and the debt is to be repaid solely from the revenue
generated by the project or the -security pledged for the project.
Staff received a letter (attached) stating that ratings on the bonds for
ESAB Automation, Inc. and Innovative Companies, Inc. will not be received
until the week after Thanksgiving; therefore, consideration on Second
Reading will be postponed to December 5."
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November 21, 1989
Councilmember Mabry withdrew from discussion and vote on this item due to a
perceived conflict of interest.
City Manager Burkett explained the request to postpone the second reading
of Ordinance No. 144, 1989 until December 5 was due to a delay in obtaining
a bond rating.
Councilmember Edwards made a motion, seconded by Councilmember Azari, to
postpone consideration of Ordinance No. 144, 1989 on Second Reading to
December 5. Yeas: Councilmembers Azari, Edwards, Horak, Kirkpatrick, and
Winokur. Nays: None. (Councilmember Mabry withdrawn)
THE MOTION CARRIED.
Ordinance No. 145, 1989, Authorizing
Issuance of Industrial Development
Revenue Bonds of the City of Fort
Collins for the Innovative Companies,
Inc.. Project, Postponed to December 5
Following is staff's memorandum on this item:
"FINANCIAL IMPACT
On June 20, 1989, the Council unanimously adopted an Inducement Resolution
for the Innovative Companies, Inc., Project in the amount of $7 million.
This ordinance, which was adopted 6-1 on First Reading on November 7,
authorizes the issuance of the industrial development revenue bonds to be
used to finance the construction of the improvements for the project.
These improvements include construction and expansion of existing
facilities at the 4401 Innovation Drive site and the acquisition and
renovation of the 3842 Redman Drive facility. The combined project
facilities will contain approximately 141,000 square feet of space. The
project is privately owned and the debt is to be paid from the revenue
generated by the project.
Staff received a letter stating that ratings on the bonds for ESAB
Automation, Inc. and Innovative Companies, Inc. will not be received until
the week after Thanksgiving; therefore, consideration on Second Reading
will be postponed to December 5."
Councilmember Edwards made a motion,
postpone consideration of Ordinance
December 5. Yeas: Councilmembers
Mabry, and Winokur. Nays: None.
THE MOTION CARRIED.
seconded by Councilmember Azari, to
No. 145, 1989 on Second Reading to
Azari, Edwards, Horak, Kirkpatrick,
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November 21, 1989
' Resolution 89-207 Authorizing the
Adoption of the Guidelines for the
Allocation of Funds from the Fort
Fund (Cultural Development
and Programming Account), Adopted
Following is staff's memorandum on this item:
"FINANCIAL IMPACT
This action provides guidelines for the distribution of 259 of the total
yearly revenues derived from lodging taxes for the Fort Fund (Cultural
Development and Programming Account).
EXECUTIVE SUMMARY
The Cultural Resources Board has revised and updated the guidelines for the
distribution of the lodging tax revenues as allocated to Fort Fund
(Cultural Development and Programming Account). The Board is submitting
the guidelines to the Council for final approval.
On August 1, Council voted to continue funding the Fort Fund (Cultural
Development and Programming Account) from lodging tax revenue. On August
15, Council decided to change the lodging tax revenue formula, effective
January 1, 1990, from 70Y Convention and Visitors' Bureau, 20Y Fort Fund
(Cultural Development and Programming Account) and 10% Mitigation Account
to 75% Convention and Visitors' Bureau and 25% Fort Fund.
Council requested that the Cultural Resources Board revise and update the
guidelines for the allocation of the funds and present them to Council for
final approval. This Resolution accomplishes this direction, and the
proposed guidelines provide a clearer format and simpler forms than
previous guidelines. An overview section to clarify the objectives of the
Fort Fund has also been added."
Director of Cultural Services and Facilities Dave Siever gave a brief
presentation describing the Cultural Services and Facilities fund
guidelines.
Councilmember Edwards made a motion, seconded by Councilmember Azari, to
adopt Resolution 89-207.
Councilmember Kirkpatrick expressed appreciation to the Cultural Resources
Board and staff for the work that went into refining the guidelines.
Councilmember Azari commended the Cultural Resources Board for enlarging
the scope of the project proposal and including the environmental issues.
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November 21, 1989
The vote on Councilmember Edwards' motion to adopt Resolution 89-207 was as I
follows: Yeas: Councilmembers Azari, Edwards, Horak, Kirkpatrick, Mabry,
and Winokur. Nays: None.
THE MOTION CARRIED.
Ordinance No. 150, 1989, Authorizing the
Purchasing Agent to enter into a Contract
for Services with a Convention and
Visitors' Bureau Service
Provider for a term of
two (2) years. Adopted on First Reading
Following is staff's memorandum on this item:
"FINANCIAL IMPACT
Ordinance No. 127, 1989 adjusted the allocation of Lodging Tax Revenue
collected in 1989 for use in 1990 by a convention and visitors' bureau
service provider from seventy (70Y) percent to seventy-five (75%) percent.
The revised budget for 1989 projects total lodging tax receipts at
$220,675. 1990 projections indicate $232,675 in receipts. The
seventy-five percent formula results in approximately $165,000 being
available in 1990 and $174,000 in 1991.
EXECUTIVE SUMMARY 0
This Ordinance would authorize the Purchasing Agent to enter into an
initial two (2) year contract (including an option of two renewals, two
years each in length) with a convention and visitors' bureau service
provider in accordance with established guidelines.
BACKGROUND
The current contract which was executed by the City and the Fort Collins
Convention and Visitors' Bureau in March of 1987 will terminate on December
31, 1989.
Staff prepared a Request for Proposals (RFP) using the City's standard
selection process for the provision of convention and visitors' bureau
services commencing on January 1, 1990. The initial contract will cover a
two (2) year period, from January 1, 1990 through December 31, 1991, with
the option of renewing the contract for two (2) successive two (2) year
periods at the City's discretion based upon performance and customer
satisfaction.
The RFP was issued on Monday, October 16, 1989 and was advertised in The
Coloradoan pursuant to established guidelines. In addition, the RFP was
sent to the following potentially interested parties:
.,•
November 21, 1989
Fort Collins Convention and Visitors' Bureau
Fort Collins Area Chamber of Commerce
Denver Convention and Visitors' Bureau
Greeley Convention and Visitors' Bureau
Boulder Convention and Visitors' Bureau
Those requesting and receiving the RFP were directed to respond no later
than 2:00 p.m. on Monday, November 6, 1989.
Proposals submitted by the stated deadline included responses from the Fort
Collins Convention and Visitors' Bureau and the Fort Collins Area Chamber
of Commerce.
The RFP included the Scope of Services, the established review and
assessment process used to evaluate proposals for professional services,
reference evaluation process and a sample agreement (attached).
Proposals received on November 6, 1989 were reviewed by a committee
pursuant to established procedures and interviews were held on Monday,
November 13, 1989 with each of the two respondents.
Based upon
the evaluation
of each proposal,
the interview process and
the
evaluation
of references,
staff recommends
that the Purchasing Agent
be
authorized
to enter into
the referenced agreement with the Fort Collins
Convention
visitors'
and Visitors'
bureau services
Bureau for the
for the two year
provision of convention
period commencing January
and
1,
1990.
1
The review committee's findings can be summarized as follows:
o The Fort Collins Convention and Visitors' Bureau proposal
places a strong focus on the local, regional, and national
convention/conference sales market which has shown to provide
a significant economic benefit to the community.
o The proposal places the responsibility for the marketing and
promotion of Fort Collins as a convention and tourism
destination in the hands of a bureau staff.
o The Fort Collins Convention and Visitors' Bureau presents a
clear record of success in positioning Fort Collins in the
convention/conference market as well as offering a
well -planned strategy for improvement."
Councilmember Kirkpatrick and Mayor Winokur withdrew from discussion and
vote on this item due to a perceived conflict of interest.
City Manager Burkett withdrew from discussion on this item due to a
perceived conflict of interest.
.1A
November 21, 1989
Councilmember Edwards noted his ten year Chamber of Commerce membership and '
stated that after reviewing his situation with the Ethics Review Board, he
believed that his membership with the Chamber of Commerce did not create a
conflict of interest.
Councilmember Azari stated she did not believe her membership with the
Chamber of Commerce created a conflict of interest.
Assistant Mayor Mabry added he did not believe his company's membership
with the Chamber of Commerce created a conflict of interest.
Director of Economic Development Frank Bruno summarized the information
contained in the Council packets and summarized the review process.
Councilmember Azari made a motion, seconded by Councilmember Edwards, to
adopt Ordinance No. 150, 1989 on First Reading.
Jim Creeden, P.O. Box 1022, spoke in support of the Convention and
Visitors' Bureau.
Craig Campbell, Marriott Hotel representative and Convention and Visitors'
Bureau Chairperson, supported the staff recommendation.
Paul Morrissey, representing the Board of Directors of Fort Collins
Sertoma, supported the Convention and Visitors' Bureau.
Mike Poppenwimer, General Manager University Park Holiday Inn, Convention
and Visitors' Bureau Boardmember, supported the staff recommendation.
Councilmember Horak expressed the need to eliminate the City's role in
appointing citizens to the Convention and Visitors' Bureau. He suggested a
friendly amendment to Councilmember Azari's motion regarding elimination of
the City's role in appointing members to the Convention and Visitors'
Bureau. He explained the City's original role in making appointments to
the Convention and Visitors' Bureau Board and noted the Ethics Review Board
and Council believe there will be little opportunity for conflicts of
interest if the City is removed from the appointment process.
Councilmembers Azari and Edwards accepted Councilmember Horak's suggestion
as a friendly amendment to their motion.
Craig Campbell, Marriott Hotel representative and Convention and Visitors'
Bureau Chairperson, commented on the administrative costs being
thirty-eight percent (38%) and associated with the development of
conventions and events to be held in Fort Collins. He noted the
programatic work is done through other organizations, board members,
committees, and individual assignments, rather than through Convention and
Visitors' Bureau staff. He explained administrative salaries are included
in the thirty-eight percent along with a full-time salesperson (plus
benefits) and noted the use of direct sales versus total advertising. He I
November 21, 1989
explained the administrative and marketing costs associated with the
executive director's position.
Karla Neidan, Executive Director Convention and Visitors' Bureau, noted the
programatic work is accomplished throuqh volunteers.
Councilmember Edwards stated it was commendable that the selection process
was competitive. He stated he believed the review process was thorough and
expressed support for an entity dedicated to developing tourism and
convention business in Fort Collins. He stated he would support renewing
the contract with the Convention and Visitors' Bureau.
Councilmember Horak stated he would support the motion and commended the
Convention and Visitors' Bureau for its hard work. He stated he was not
convinced that the dollars spent had increased tourism in Fort Collins. He
encouraged Council's input on the review of the contract in two years and
stated he believed that as convention and tourism grows in Fort Collins,
less money will be needed for marketing.
Assistant Mayor Mabry stated he believed the process was well done and
commented on the formal evaluation which led to the final recommendation.
He stated he would support the motion.
The vote on Councilmember Azari's motion to adopt Ordinance No. 150, 1989
on First Reading was as follows: Yeas: Councilmembers Azari, Edwards,
Horak, and Mabry. Nays: None. (Councilmember Kirkpatrick and Mayor
Winokur withdrawn)
THE MOTION CARRIED.
Items Pertaining to the Poudre
River National Recreation
Area Feasibility Study
Following is staff's memorandum on this item:
"EXECUTIVE SUMMARY
Assessment of options for further investigation of the feasibility of
the Poudre River National Recreation Area (NRA)
B. Resolution 89-208 Endorsing the Findings and Concepts of the NRA Study
and Directing Further Investigation of Legislative and Management
Matters.
The Poudre River NRA Study made clear findings of feasibility for an NRA,
but did not specify details pertaining to the critical issues of enabling
legislation and a managing partnership between local interests and an
appropriate federal agency. There are different ways to approach the task
of obtaining such information, as discussed in this report.
November 21, 1989
At this time, Council is being asked to make a particular decision: Either ,
to direct a task force inquiry on critical issues, or forego the task force
option. If Council decides to forego the task force, another decision
should be made: Selection from a number of alternatives that do not
include the task force inquiry.
Staff recommends the use of a focused task force as the most efficient way
to assist in gaining closure on whether or not Council should recommend
that Congress proceed with NRA designation.
BACKGROUND
The United States Congress is vested with the authority to create
legislation designating a National Recreation Area on the Poudre River.
Congressional action will be influenced by the position of the Fort Collins
City Council and the Larimer County Board of Commissioners as to whether or
not the regional community supports designation. The County Commissioners
have indicated conditional support for designation.
At a worksession on October 24, Council indicated a desire to pursue NRA
designation and directed staff to obtain additional information about
legislative and management issues before a recommendation can be made to
Congress. Unresolved concerns focus on the federal government's role in
managing the NRA, and to what extent the City could lose control over
matters of local importance within and proximate to the boundaries of the
NRA. Specific concerns relate to the regulation of land use and water
quality. At the worksession, staff recommended undertaking a comprehensive
management analysis to identify solutions to remaining concerns. Such an
analysis would include identification of an appropriate federal partner,
draft intergovernmental agreements about managing roles and
responsibilities, specific language for inclusion in the enabling
legislation and a draft general management plan. The logic in this
approach is in having guarantees pertaining to local concerns in place
before Council makes a recommendation to Congress.
Council also indicated a preference for quick closure on whether or not
designation is a good idea, and directed staff to avoid unnecessary
expenditure of money and time. In response, staff has prepared the
following proposal for consideration.
ANALYSIS:
In the standard NRA designation process, a master plan and general
management plan are developed' subsequent to designation. This effort
typically takes two to three years, and is usually the responsibility of
the federal managing agency, although it can be undertaken as a joint
effort of the federal agency and local interests.
In the case of a Poudre River NRA, there have been discussions about the
value of developing the management structure and master plan prior to
designation. Advance development of the comprehensive management analysis '
and planning effort could be undertaken by the local interests alone, or in
610-
November 21, 1989
cooperation with a potential federal partner, if a federal agency were to
indicate a willingness to participate before designation (it is unlikely
that any federal agency would voluntarily commit time and resources prior
to being directed to do so by Congress). The objective of advance
management analysis and planning is to assure local control over matters of
local importance.
There is a risk in proceeding directly with management analysis and
planning. (with or without the participation of a federal agency). The
outcome may be negative -- acceptable intergovernmental agreements may not
come to fruition in the negotiation process, or highly specific language in
the enabling legislation may not be approved. The consequence is that time
and money would be expended that could have been applied to a local river
planning effort.
To minimize this risk as much as possible, staff is proposing the option of
using a task force to explore the underlying issues of legislation and
management before a decision about designation or a significant investment
in comprehensive management analysis and planning are made.
The use of a task force inquiry would not necessarily preclude the
subsequent undertaking of a comprehensive management analysis. Depending
upon the strength of the results of the inquiry, Council could decide to
proceed directly to designation (with the management and master planning
effort following), or to undertake a comprehensive management analysis
' prior to designation at reduced risk of negative outcome.
If the outcome of the task force inquiry is negative, then the options to
pursue a local river planning effort or to undertake no action are also
available.
The following is a discussion of the advantages and disadvantages of using
a task force inquiry as opposed to undertaking a more comprehensive
management analysis now.
OPTION A: PRELIMINARY INQUIRY BY LEGISLATIVE AND MANAGEMENT.TASK FORCE.
Purpose: The purpose of a task force would be to conduct a fact finding
inquiry on critical issues. The task force would be mandated to obtain
answers to the questions that underlie the feasibility of a cooperative
management structure for a Poudre River NRA. Questions are:
■ Is it possible to have enabling legislation that is tailored to be
responsive to local concerns, including water quality and land use
issues?
■ Is there an appropriate federal agency that is able and willing to
cooperate with local interests in the management of an NRA?
Results: If the answer to either question is negative or inconclusive,
' then Council may wish to reassess its options relative to designation. If
the answers to both questions are clearly positive, the task force will
-611-
November 21, 1989
obtain a letter of intent from a willing federal agency. Council could '
then make a recommendation for designation to Congress at substantially
less risk than if designation were pursued without this information. The
task force should be able to complete its mission within three months of
appointment.
Discussion: So far in the NRA. study process, staff has worked through
administrative channels to obtain specific information about enabling
legislation and potential federal managing partners with limited success.
Task force members that have personal connections with top federal
administrators or an inside knowledge of federal programs would be able to
access this information more quickly and efficiently than staff.
The task force members would use their personal contacts and knowledge to
find out what they can about innovative enabling legislation and
cooperative management partnerships. The task force would work with the
Assistant Mayor. The necessary technical and administrative support would
be provided by staff. The task force would not be authorized to conduct
negotiations' about management roles and responsibilities or to make
agreements with federal interests.
The advantages of utilizing a task force inquiry before further work is
undertaken include:
■ Obtaining specific critical information allowing quick closure on
whether or not to pursue NRA designation.
■ Minimizes the risk of negative outcome from a comprehensive management
analysis as a first step, and costs substantially less.
■ Underscores the legitimacy of the NRA assessment process through the
participation of private interests.
■ Demonstrates community commitment and interest in NRA designation beyond
the efforts of staff.
The disadvantages of this option include:
■ The possibility that the personal connections of task force members do
not yield information of the desired clarity or conclusiveness,
resulting in a loss of time and momentum.
■ Travel and communications costs necessary to allow the task force
members to conduct their mission.
Process: If the task force option is chosen by Council, staff would
immediately prepare background information in support of the task force's
mission. Included would be an in-depth investigation of the mandate and
practices of potential federal partners, and information on existing
successful cooperative managing partnerships from other recreation areas.
This would allow the task force to focus efforts on the most likely I
potential federal partners at the outset.
-612-
November 21, 1989
'
Following appointment of task force
members, a series of briefings and
strategy sessions would begin. The
Assistant Mayor
would work with the
task force. An interdepartmental
staff team would
provide necessary
technical and administrative support.
It is possible
the task force could
conclude their inquiry in several weeks, and report to
Council its findings
by the end of February, 1990.
The task force members would be knowledgeable about the findings and
concepts of the NRA feasibility study, should be impartial (despite any
personal bias about designation), and have deep familiarity with community
values, attitudes and plans. Appendix A of this report identifies
individuals that staff believes are qualified to undertake this assignment.
Each candidate has expressed interest, and has the ability and willingness
to participate.
In the event Council does not choose to use a task force, the alternatives
of the second option (Option B: No Task Force) need to be considered. The
following is a brief discussion of the Option B alternatives. Also, the
last page of this report is a "Decision Tree", a graphic illustration of
the major decision points in the assessment process of NRA designation.
OPTION B: NO TASK FORCE.
As the "Decision Tree" shows, the use of a task force inquiry is an
' optional process leading up to Option B. If Council chooses not to use a
task force, then the next decision point requires a selection from a number
of alternative processes.
The following is a brief overview of the alternatives, and the process
required to implement each option. If Council does not choose the task
force option, one of the following alternatives should be selected.
Staff will then bring to Council the implementing paperwork (Resolution or
appropriation Ordinance) in the next month.
■ Recommend that Congress proceed directly with NRA designation.
This could be an unconditional recommendation, or one that is made
subject to one or more conditions. There is no assurance however
that the Congress would honor those conditions in the passage of
its ultimate enabling legislation. The recommendation should be
backed by a Resolution. The Resolution will be used as
documentation in the Congressional designation process. A general
management plan and master plan will follow designation.
■ Undertake a comprehensive management analysis before making a
decision about designation. This would be done either with
consultant assistance, or as an in-house staff effort. A separate
analysis of this process, and discussion of the advantages and
disadvantages is included in Appendix B, attached to this report.
' If this is the alternative chosen by Council, a Resolution and
appropriation Ordinance would be necessary to mandate this work,
-613-
November 21, 1989
and set parameters for the project. NRA designation would follow, I
if a successful management structure can be proposed.
■ Pursue a local river management plan. Do not encourage NRA
designation. If this is the direction Council chooses, staff will
propose a work plan to achieve this in the next two months.
Council may wish to adopt a Resolution directing this work.
■ Other. Other alternative directions are available, although
Council did not indicate a preference for any of these at the
October 24 worksession. Other alternatives include: No local
river plan, no federal designation.
* Alternative federal designation, such as National Wildlife
Refuge, or National Heritage Corridor.
CONCLUSION:
There are two basic approaches in getting to a decision whether or not to
pursue designation. One approach is to actually develop the parameters of
a management structure. This includes identification of an appropriate
federal partner with negotiated intergovernmental agreements. This could
be accomplished through a consulting contract or as a staff level work
effort. Guarantees pertaining to local concerns would be in place prior to
designation, substantially reducing the risk of a positive recommendation
to Congress. This would be a lengthy and expensive effort, with the risk
of negative outcome.
The second approach uses a highly focused inquiry to get to the heart of
unresolved concerns. A fact-finding mission undertaken by private
interests with federal connections would yield information about
legislative and management issues, enabling Council to quickly reach a
determination whether or not designation should be pursued any further.
The risk in this option is that it could produce inconclusive results,
leaving Council to reassess options relative to designation.
RECOMMENDATION:
Staff recommends Council appoint a task force to undertake preliminary
investigation of legislative and management issues before making a
recommendation to Congress in favor of designation, or undertaking more
advanced analysis and work. A Resolution making the appointments and
directing the work of the task force accompanies this report."
Mayor Winokur withdrew from discussion and vote on this item due to a
perceived conflict of interest.
City Planner Kari Van Meter gave a brief presentation on the National
Recreation Area legislation and commented on the qualifications of the task
force appointees.
-614-
November 21, 1989
Councilmember Azari made a motion, seconded by Councilmember Kirkpatrick,
to adopt Resolution 89-208.
Assistant Mayor Mabry commented on the qualifications of the prospective
task force appointees and elaborated on their involvement and association
with similar issues at the local and federal level.
Councilmember Kirkpatrick stated the recommendation gives the City the
benefit of the knowledge of citizens who are extremely qualified and
willing to serve on the task force.
Councilmember Horak noted his support for the resolution and spoke in favor
of the citizens who were recommended to serve on the task force.
Councilmember Edwards stated he believed the task force would do an
excellent job in evaluating options and alternatives and stated he would
support the motion due to the qualifications of the recommended
individuals.
Assistant Mayor Mabry noted the recommended process solved problems,
answered questions, cut costs, and eliminated red tape. He spoke in
support of the motion.
The vote on Councilmember Azari's motion to adopt Resolution 89-208 was as
' follows: Yeas: Councilmembers Azari, Edwards, Horak, Kirkpatrick, and
Mabry. Nays: None. (Mayor Winokur withdrawn)
THE MOTION CARRIED.
Ordinance No. 151, 1989, Assessing
the Cost of Improvements in the
Oakridge Business Park Special
Improvement District No. 91.
Following is staff's memorandum on this item:
"FINANCIAL IMPACT
This Ordinance assesses the district costs to the property owners
benefitted by the improvements. As the property owners pay their
assessment installments, the City will begin, to retire the SID bonds issued
to finance the construction. Cash flow projections confirm that the
assessments, if paid when due, are adequate to meet the debt service on the
outstanding bonds.
EXECUTIVE SUMMARY
In August 1987, Council established the Oakridge Business Park Special
' Improvement District No. 91. This SID consists of approximately 169 acres
-615-
November 21, 1989
of land located in the southeast portion of the City adjacent to and '
southeast of the intersection of Lemay Avenue and Harmony Road.
In accordance with Chapter 22 of the City Code, the City began the closeout
of this district with the adoption of Resolution 89-171 which accepted the
improvements and ordered a notice to be sent to property owners informing
them of the assessment. A public hearing date of November 21, 1989 was set
to hear any objections from the property owners.
This Ordinance places an assessment against each property in the district
and outlines the procedure for collection. The assessment amount for each
property is listed in the attached assessment roll and includes the cost of
construction, engineering, formation and financing of the district.
The City formally established the Oakridge Special Improvement District No.
91 in August of 1987 by the adoption of Ordinance No. 114, 1987. The City
Engineer has inspected the completed improvements and has certified that
all improvements in the district are acceptable. Resolution 89-171 began
the closeout and assessment of the property by ordering notice to property
owners and setting a date (November 21, 1989) for public hearing on the
assessments. The property owners in the district will be assessed for all
costs associated with the construction, engineering, formation, and
financing of the district improvements.
FUNDING:
Special Improvement District Bonds
were issued by Ordinance
No. 16, 1988 in
the aggregate principal amount of
$2,245,000 to finance the
construction of
district improvements. Street oversizing
costs in conjunction with the
collector streets of McMurray
and Keenland were paid
by the Street
Oversizing Fund. A small amount
of water main oversizing
was paid by the
Water and Sewer Fund.
The total amount assessable against the property within the district was
calculated as follows:
Total Projects Costs: $2,057,245.18
City Street Oversizing Costs: (134,992.55)
City Water and Sewer Oversizing Costs: ( 23,068.82)
Total District Costs: $1,899,183.81
Property owners have the option of paying the total principal amount of the
assessment without interest if such payment is received by the City within
thirty days after final publication of the assessing ordinance. If a
property owner elects to pay the assessment in installments, the principal
will be divided into thirteen equal installments payable beginning on
February 1, 1990 and ending February 1, 2002. The rate of interest charged
on the unpaid principal is 8.5299%, the net effective interest rate on the '
bonds. Interest will begin to accrue thirty days after the final
-616-
November 21, 1989
publication of the assessing ordinance
January 9, 1990.
This date is anticipated to be
The total principal component of the first installment is expected to be
$146,091.06. The total interest component of the first installment is
estimated to be $22,635.40. Individual property owners can calculate their
proportion of the total by using the proportion that their assessment bears
to the total for the district.
Finance Department staff has analyzed the cash flow from assessments and
the debt service requirements. If assessments are paid on time, the debt
service will be covered by the assessment payments. Charging an interest
rate equivalent to the net effective rate payable on the bonds does not
provide total protection against negative cash flows. Substantial default
in payment of assessments would require transfer of City funds to the
district to meet interest payments to bondholders.
After the ordinance is adopted, the Director of Finance will certify the
assessment roll to the Larimer County Treasurer for collection of
assessments. -
RECOMMENDATION:
Staff recommends adoption of this Ordinance to close out the Oakridge
Special Improvement District No. 91 and begin the assessment of the
district costs to the property owners."
Finance Director Alan Krcmarik reviewed the SID N91 process and the reasons
for the interest rate selection which is approximately 8.5%. He outlined
the reasons staff recommended the net effective interest rate versus the
highest coupon rate. He stated the 8.5% interest rate was sufficient to
cover the bond debt service providing the assessments are paid on a timely
basis and noted the 5.6% rate projected an ending balance in the district
if all payments are made on schedule. He stated staff believed the net
effective interest rate was consistent with the negotiations that were held
when the bonds were issued and noted the cash flow projections were based
on the net effective interest rates. He added that staff also believed the
net effective interest rate was a fair assessment.
Councilmember Kirkpatrick made a motion, seconded by Councilmember Horak,
to adopt Ordinance No. 151, 1989 on First Reading.
Mayor Winokur asked how the official statement provisions relating to the
interest rates and the Code requirements are reconciled and asked about
making allowances for issues not covered by the Code.
City Attorney Roy stated that general principle would make allowances for
issues not covered in the Code, and clarified that regarding the district,
it would not be good policy to make allowances due to the fact that the
discussions pertaining to the assessment were held prior to the enactment
of the district provisions. He clarified that there are no formal or legal
agreements.
-617-
November 21, 1989
Finance Director Alan Krcmarik indicated the projected ending balance would '
be approximately $115,000 providing the payments were made on time, and
noted the balance was about 5.6% of the outstanding assessments. He
explained that at the time the bonds were issued none of the provisions
were finalized.
City Attorney Roy stated the assessments were consistent with the existing
Code and noted staff believed the Code provisions were evidence of the
City's current policy regarding reserves. He explained that safeguard
provisions had been built into the new Code to insure that reserves do
occur and stated that should there be a surplus in the district, it would
be consistent with the present policy to pay the surplus back to the
property owners who "over paid".
The vote on Councilmember Kirkpatrick's motion to adopt Ordinance No. 151,
1989 on First Reading was as follows: Yeas: Councilmembers Azari,
Edwards, Horak, Kirkpatrick, Mabry, and Winokur. Nays: None.
THE MOTION CARRIED.
Consideration of Three Appeals of
Actions of the Financial Officer on
October 17, 1989 that Determined
the Reallocation of the Assessments on e
Property Located in the Provincetowne/Portner
Special Improvement District #81 and the
South Lemav Special Improvement District #86
Following is staff's memorandum on this item:
"EXECUTIVE SUMMARY
On September 21, 1989 a hearing was begun by the City of Fort Collins
regarding the assessments proposed to be reallocated on .two tracts of land
located in the Provincetowne/Portner Special Improvement District #81 ("SID
#81") and the South Lemay Special Improvement District #86 ("SID #86"). At
one time all of the property under consideration for reallocation of
assessments was owned and under control of the Dueck Companies ("Dueck")
Through the foreclosure process, the Iienholder, Lake Shore Estates ("Lake
Shore"), regained ownership of a majority of the land in November of 1988.
The City Code provides that upon subdivision of property, property owners
are required to request reallocation of assessments. If property owners
cannot reach agreement on the reallocation, the City may order a
reallocation after notice and hearing. On August 21, 1989, the City made a
reallocation proposal to the property owners and published notice of the
anticipated hearing as required by the Code. The City received a
reallocation proposal from Dueck in correspondence dated August 3, 1989. '
On September 20, 1989 a reallocation proposal was received from Lake Shore.
All three reallocation proposals were reviewed and discussed at the
am
November 21, 1989
' hearing. Testimony was also heard from another property owner in SID #86,
Mrs. Alma Murr ("Murr"), who owns approximately 20 acres which were
included in the district by amendment to the district boundaries. Murr
maintains that her property (re -acquired by foreclosure action against
Dueck) does not receive any special benefit from the district improvements
and therefore the assessment levied against her property should be removed.
The hearing was continued and concluded on October 2, 1989. Findings and
conclusions of the Financial Officer were distributed to the parties on
October 17, 1989.
Pursuant to Chapter 2 of the City Code, three of the parties - in- interest,
Dueck, Lake Shore and Murr, have appealed to the City Council for a finding
and a resolution of the decisions of the Financial Officer.
Summary of ADpea1S:
There are three notices of appeal presented to the City Council for
consideration. The first appeal is referred to as the Dueck appeal. The
appellant alleges that there is an error in the portion of the Financial
Officer's Findings set forth in paragraph C on page 6 of such Findings
which is titled, "Street Oversizing Costs and Note." It is alleged that,
"...(t)he Financial Officer's rationale for his decision regarding the
Street Oversizing Fund Revenue Note fails to take into account relevant
facts and legal arguments presented at the hearing." There is further
' specific allegation that, "...(t)he City cannot arbitrarily remove a
specific cost from a lawfully made assessment agreed to by all parties to
the transaction and unilaterally reallocate such assessment against only
one portion of the property..."
The second appeal is the Murr appeal. This appeal alleges that the
Financial Officer erred in restricting a definition of subdivision so as to
exclude consideration of the Murr property at the reallocation hearing and
that Murr's due process rights were violated. This appellant also requests
relief from $9,942.55 of the $50,672.09 assessment levied against the
property.
The final appeal is the Lake Shore appeal. The appellant alleges the
following:
1) Improper notice and lack of jurisdiction
2) Prejudicial errors at the hearing
3) Abuse of discretion
4) Error in the allocation of acreage between Lake Shore and Dueck
Scope of Council Consideration:
Presentations of the separate appeals will be consolidated. Council should
then discuss the appeals and decide the merits of each separately. The
ultimate issue to be decided by Council is whether the method of
' reallocation for these districts selected by the Finance Officer should be
upheld, overturned, or modified."
-619-
November 21, 1989
Councilmember Mabry withdrew from discussion and vote on this item due to a
perceived conflict of interest.
City Attorney Roy commented on the method of reallocation in the absence of
any agreement by the property owners and on the reallocation of assessments
for the two special improvement districts. He spoke about the actions to
be taken by Council and the initial determination on whether the grounds
were in accordance with the requirements of the City Code and whether the
appeals could be heard on their merits. He stated his office had reviewed
the grounds and found no defects in any of the appeals and noted that at
the conclusion of each presentation on behalf of the appellants, Council
will be called on to make a decision to uphold, overturn, or modify the
decision of the Financial Officer regarding the method used for
reallocation. He stressed the basis for Council's decision could not be
new evidence, but was to be based on the record of the appeal which
included the same facts and documents that were presented to the Financial
Officer and stated the presentations would be made in the order in which
the appeals were filed. He stated a thirty minute time limit would be
allowed for each appellant to speak and suggested at the conclusion of the
hearing, prior to Council consideration, a decision was needed regarding
objections to documents which might constitute new evidence. He
recommended a preliminary decision be made and that the hearing be
concluded in terms of input. He suggested the matter be continued to
December 5 for Council consideration of a resolution making formal findings
and a final vote. He encouraged Council to proceed to determine whether
the alleged grounds were sufficient to warrant each appeal.
Councilmember Kirkpatrick made a motion, seconded by Councilmember Edwards,
that the Lake Shore Estates appeal be heard based on sufficient grounds.
Yeas: Councilmembers Azari, Edwards, Horak, Kirkpatrick, and Winokur.
Nays: None. (Councilmember Mabry withdrawn)
Councilmember Horak made a motion, seconded by Councilmember Edwards, that
the Murr appeal be heard based on sufficient grounds. Yeas: Councilmembers
Azari, Edwards, Horak, Kirkpatrick, and Winokur. Nays: None.
(Councilmember Mabry withdrawn)
THE MOTION CARRIED.
Councilmember Edwards made a motion, seconded by Councilmember Horak, that
the Dueck appeal be heard based on sufficient grounds. Yeas:
Councilmembers Azari, Edwards, Horak, Kirkpatrick, and Winokur. Nays:
None. (Councilmember Mabry withdrawn)
THE MOTION CARRIED.
Dan Michaels, representing Alma Murr, stated his appeal issues were not as
complex as the other appellants and suggested that his'appeal be heard last
for a more efficient use of the allowed time.
-620-
November 21, 1989
' Lucia Liley, representing the Dueck Companies, had no objection to the Murr
appeal being heard last and encouraged the Lake Shore Appeal be heard
first.
Bill Wyatt, representing the Lake Shore Estates appeal, had no objection to
the Murr appeal being heard last and stated he preferred the Lake Shore
appeal be heard last.
Mayor Winokur noted the order in which the appeals were filed was Lake
Shore, Murr, and Dueck and stated since there was no objection to the Murr
appeal being heard last, the first appeal to be heard would be Lake Shore,
followed by the Dueck appeal, with the Murr appeal being last.
Civil Engineer Matt Baker presented a brief background on the two districts
and their improvements including total improvement costs. He summarized
the foreclosure process involving Lake Shore Estates reobtaining title to
most of the property after a portion of the property had been released from
the mortgage lien and stated the Dueck Companies had obtained title to the
northeast portion of the parcel. He noted that the reallocation hearing
was triggered by Alma Murr reacquiring the title to a twenty acre parcel
through foreclosure.
Lucia Liley, representing the Dueck Companies, objected to new issues being
raised for the first time during the appeal and identified those new issues
relating to the transfer and payment of assessments, the issue of sellable
land, and the issue of appropriate acreage.
Bill Wyatt, representing Lake Shore Estates, commented on the land that was
applicable for assessment and addressed the idea of legal arguments versus
issues with respect to the Financial Officer's decision.
Councilmember Horak asked City Attorney Roy to clarify the objections and
explain how the appeal process should work.
City Attorney Roy stated his role was to provide an opinion regarding the
objections and noted the Mayor could make an initial decision which could
be over -ridden by a majority vote from Council. He noted the objective was
to achieve fundamental fairness regarding the merits of the objections and
provide the appellants the opportunity to have their positions fully
explored. He added that the introduction of new evidence was not
permissible and stated the material referred to should have been received
by Council for prior consideration. He explained the Code does not allow
new issues or new arguments but does permit new documents and new testimony
which might be in the way of the facts. He noted the facts were in the
record and encouraged the appellants argue the weight Council should give
the facts.
Councilmember Edwards commented on the current arguments, issues, and
evidence, and noted that new evidence could not be accepted, but new issues
' and arguments were acceptable based on the definitions in the Code.
-621-
November 21, 1989
City Attorney Roy stated that the evidence would be accepted based on the I
definitions in the Code.
Councilmember Horak asked if the procedure could be interpreted as a
hearing procedure when the words "evidence", "issues", and "arguments" were
used.
City Attorney Roy stated that procedure would be the same and noted
evidence tends to prove the existence or non-existence of facts. He noted
the debate was legal issues and the different ways to look at the facts and
the associated legal questions. He stated he believed the distinction was
valid and noted he would advise the same procedure be followed during a PUD
appeal.
Mayor Winokur stated he believed the arguments did not present new
evidence, rather were based on evidence already in the record. He stated
he would allow the presentation by Mr. Wyatt to include new arguments, but
would not accept new evidence. He outlined the procedure in which the
evidence from Lake Shore Estates, Dueck Companies, and Murr would be heard
and stated thirty minutes would be provided for each appeal. He pointed
out each party was allowed to reserve a portion of the thirty minutes for
one follow-up response.
Bill Wyatt, representing Lake Shore Estates, discussed Lake Shore's
involvement which was created by the Dueck Companies and summarized the
purchase, development,, and payment of the property by Dueck Companies by e
the use of the special improvement district. He noted that a special
improvement district takes precedence over a first mortgage position
because the courts have held that if the benefits bestowed are equal to or
greater than the assessment against the property, the assessments can take
precedence over a prior lien of the first mortgage holder. He added the
theory behind the idea is not an unconstitutional taking of the property.
He stated that under Colorado law, taking of property is allowed without
notice given to any of the mortgage holders and noted that the property
owners (Dueck Companies) can waive any notice requirement. He noted the
process went without any notice to Lake Shore and added that Dueck
Companies began phase one, two, and three of the improvements, through the
special improvement district process. He stated that Dueck Companies did
not follow through on its agreement with the City, did not follow through
on its mortgage payments, and did not develop phases two or three. He
stated Dueck Companies breached its contract with the City and with Lake
Shore and added as a result, Lake Shore foreclosed on the property. He
noted the original notice that was given spoke of the reallocation
assessment and stated that the constitutional guidelines must be met when a
reallocation is made. He stated the special assessments were to be
reallocated because the property had been divided and explained that the
Constitutional procedure assured that once the special assessments were
reallocated they were to be reassessed on the basis of the reallocation.
He commented on Civil Engineer Matt Baker's testimony regarding the intent
of the SID's creation and assessments for both phases and noted the '
percentages allocated to Lake Shore were based on benefits of a half
million dollars less than what the Financial Officer 'determined. He
-622-
November 21, 1989
' commented on the formation of SID #81 when Dueck Companies had 403 acres of
property (67%) and received sixty-eight percent of the allocation
assessment and he stated that MSP had 60 acres (13%) and received
thirty-two percent of the allocation assessment. He pointed out the cost
of the benefits received had no relationship to the number of acres
involved, but related to the benefits received under the constitutional
provisions and added that in SID #86, Dueck owned seventy-five percent of
the property and received 56.8% of the assessments, while MSP owned eleven
percent of the property and was assessed 15.4% of the costs. He pointed
out that Dueck owned 75% of the area to be assessed and in 1986, only
received 56.8% of the assessments and added that the procedure must be done
on the basis of benefits received. He noted that SID #81 provided for
three phases which included expenditures of $4,972,000 plus additional soft
costs in the development of all three phases within the district and noted
the three phases 'were not developed because Dueck stopped the project. He
noted the Dueck Companies avoided following the outlined procedure and
referred to Ordinance No. 136, 1984 for clarification and read, "the
improvements to be constructed in said district shall be constructed in
three phases," and referred to the agreement's wording, "the actual
assessment against the property shall be based on the final actual cost of
the improvements constructed in the district," with reference to the City
not following the area basis for assessment distribution. He stated the
City was making a reallocation and a new assessment and must meet the
Constitutional guidelines and noted the benefits have to be equal to or
greater than the assessments that are made against the property. He
explained that if the property is transferred, the City will ensure that
the transferees have the right to accept the allocations or they will go
out for collection by the City and suggested Lake Shore and the City should
be bound to the same contract. He commented on the City's obligation to
the bondholders to collect from Dueck Companies and noted the agreements
stated the district would have three phases of improvements. He noted the
three phases of improvements never happened and the contract was breached
by Dueck Companies. He encouraged Council to reverse the decision of the
Financial Officer and stated the allocations should be determined in a
constitutional matter on the basis of the benefits that were received.
Lucia Liley, representing Dueck Companies, pointed out the importance of
the conduct at the hearing and summarized the constitutional process that
was met at the administrative hearing. She commented on the substantive
issues related to the transfer of the property under the Master Agreement
with respect to the assessments that were due and owing against Dueck, thus
allowing Lake Shore to escape from the payments and noted the phasing
process in SID #81 involving the noncompletion of phases two and three
which meant that the area reallocation formula is no longer applicable.
She stated that Dueck was not a transferor based upon the specific language
in the Master Agreement, based upon the intent of the provision, and based
upon the effect of the interpretation in terms of the City and the involved
property owners. She noted that the language stated the transferor would
be liable for the assessments and stated that if the purchaser or
transferee acknowledged in writing or receipt of notice, that the
transferor is not bound to pay the assessment and noted the importance of
understanding the meaning of the language to understand Lake Shore's
-623-
November 21, 1989
argument. She stated in the Lake Shore appeal, Dueck and the City had
argued that Dueck was the transferor and the Financial Officer found that
'
Dueck was the transferor. She clarified that those statements were not
accurate and stated the findings were void of any reference or any finding
that Dueck was the transferor and stated a transferor actively affects the
transfer. She stated that in a foreclosure setting, the moving party is
not the owner and acknowledged that in this foreclosure setting the moving
party was Lake Shore who affected the transfer. She commented on the date
of the deed of trust which gave rise to the foreclosure action and the
ultimate transfer and noted the language in the disclosure section relative
to the notice stating the transferor was not paying the assessment and the
transferor must include any documents transfering his interest notice
requirements and stated those concepts have no meaning with an involuntary
foreclosure. She stated the language was consistent with the intent and
the intent was to provide actual notice in the event of a voluntary
transfer and stated that notice was received from Dueck Companies and
notice was received as a part of the foreclosure process. She stated that
according to the correspondence it was clear that prior to the beginning of
the foreclosure, Lake Shore knew the assessments were there and that the
lien assessments would remain on the property. She stated the notice
requirements were given to the transferee before the transfer and an
acknowledgement was received and stated that it is unknown in a foreclosure
setting who the ultimate transferee will be prior to the transfer. She
commented on the consent issue that was raised by Lake Shore and stated it
was consent due to the voluntary transfer. She mentioned the inequitable
results, relating to the lien holder in a foreclosure setting ending up
with greater rights because of the disclosure provision than was intended
by the Code when the district was formed, financed, and assessed. She
stated the property owner was required to publish notice but not required
to obtain consent of a lienholder and commented on the deed of trust that
was executed which allowed the lienholder who owned the property due to
foreclosure, to also end up avoiding the payment of all assessments for the
improvements. She noted that the owner has lost his property, but no
longer has an obligation to the property, but rather would have a personal
obligation to pay all of the assessments in full immediately because he was
unable to obtain consent which is not obtainable in a foreclosure context.
She pointed out the phasing issue applied only to SID #81 and stated Lake
Shore's argument was based on language and the general rules of
interpretation. She stated the language and the general rules of
interpretation do not support Lake Shore's position and stated it was clear
that all parties knew about the three phases being intended and permitted.
She stated the documents did reflect that after any tract is subdivided
into smaller parcels, the land should be reallocated'on an area basis and
stated the intent of the language was dependent upon the three phases being
separately approved, financed and assessed. She commented on the alleged
breach of contract, the partial performance agreement, and on the phasing
concept which permitted potential improvements in phases. She noted that
according to the documents it was intended for each phase to stand on its
own and noted the official statement for SID #81 described the bond issue
for phase one. She stated the facts show that it was a separate and legal
district with its own assessment and noted that the area method of
allocation is required for any division of any property "that has been
'
IMOZZ
November 21, 1989
' assessed. She noted the major street improvement costs in the district
benefited the entire parcel of property and noted the recipients of the
major benefits from the infrastructure improvement would not be those
adjacent to the property. She stated that the notice had been clearly
established by all of the recorded evidence throughout the hearings and
noted it did not matter that phases two and three were never completed.
She noted the importance of Council's determination with respect to all of
the property owners and stated the area of reallocation was appropriate and
the placing of the initial assessment was appropriate. She pointed out
that there was notice and published notice, no objections were raised at
the hearing, and the findings according to the Code were prima facia
evidence of benefit on the assessed property. She stated no challenge was
lodged within the thirty day period as outlined by the Code and noted the
argument regarding the sellable land issue and the lack of findings and
evidence by the Financial Officer. She spoke of the allegation that the
acreage was improperly determined and noted that this was the first time
the issue had been raised. She noted the problem centered around an
overlap with a previous dedication. In summary, she stated the arguments
had not advanced to support a reversal based upon the grounds for reversal
that were set out in the City Code and noted the area reallocation method
is the appropriate method and continues to be required in the legal
documents. She stated it was the method of assessment that was originally,
made on all of the property with determination by Council that was fair and
equitable with special benefits resulting and noted that all the notice
requirements of the Code were met, and no objections were raised. She
' stated that the determination had been made and should be final and noted
the ample evidence on record with regard to the benefit issue. She pointed
out the evidence in the documents, the expert testimony supported an area
reallocation as the most equitable under all the circumstances and
maintained its consistency with similar voluntary reallocations. She
stated it was consistent with the only other involuntary reallocation that
Council had dealt with in the situation in which the Financial Officer
found that to reallocate on other than an area basis, (based on
front -footage for streets) would result in a disproportionate assessment
because the properties were adjacent to the street. She noted the major
infrastructure improvements which benefitted all of the property and
maintained that it was consistent with the City's policy and practice with
regard to treatment of oversizing and street oversizing improvements. She
urged Council to uphold the decision of the Financial Officer with the
exception of the street oversizing note. She noted written objections had
been submitted with respect to the Murr appeal and added should Council
decide to hear the Murr appeal in connection with the reallocation hearing,
Council could reallocate the note amounts equally between Lake Shore and
Murr. She explained how the Financial Officer fixed the amounts, only
giving credit to Lake Shore and noted how the Murr property bears a share
of the assessments relative to the street oversizing note. She encouraged
Council consider reallocating the assessments in a fair and proportionate
manner and then readjusting the remaining assessments.
Dan Michaels, representing Alma Murr, asked Council to include Alma Murr in
' the reallocation process based on the ratification and approval of the
hearing officer's decision on October 17 and explained that if Murr's
"Ve
November 21, 1989
twenty acres were included in the hearing officer's formula, Alma Murr
would be entitled to approximately $9,942 relief from the existing $50,672
assessment. He asked Council to consider the importance of the equitable
issues centering around the Murr property.
Councilmember Kirkpatrick asked who owned the property after it had been
sold while Mrs. Murr was the lienholder.
City Attorney Roy clarified that Mrs. Murr was not the owner of the
property after it had been sold.
Bill Wyatt, representing Lake Shore Estates, clarified that at the time the
SID was established Lake Shore and Mrs. Murr were not the property owners
and noted at the time of the foreclosure, they had received notice. He
stated that according to the Code and state statutes, there is no
requirement requiring a mortgage holder have notice and explained that
under the Code, only the property owners can waive notice. He stated that
Dueck Companies waived notice and noted that at the time, Dueck Companies
owned all of the property but released some of the property under the
release provision and deed of trust. He explained Lake Shore's objection
focused on the reallocation and assessment process and the constitutional
guidelines that were involved and stressed that the property could not be
assessed in excess of the benefits that were received from the improvement.
He encouraged Council to overrule the finding of the Financial Officer.
City Attorney Roy noted that all of the designated portions of the record
had been provided to Council in sufficient time for its review and
decision.
Mayor Winokur questioned the due on sale provision when the City should
have called the full value of the assessments due and payable upon the
default and failure to pay the assessment.
Bill Wyatt, representing Lake Shore Estates, explained it constituted a
transfer and stated the security was previously assessed on the property
and encouraged the City to collect as much as possible from the Dueck
Companies.
Mayor Winokur asked the amount of security due from Dueck Companies.
City Attorney Roy stated the collateral or security for the payment of the
assessment was the property and noted the lien was attached to the property
within the district.
Mayor Winokur asked what the outcome would have been had the City called
the assessment due and payable in full.
Bill Wyatt, representing Lake Shore Estates, stated the assessments would
have been paid or the bonds would have been foreclosed and added that the
City should first look to Dueck Companies then to the remaining property
for payment. He explained that the property owner agreed to the
assessment.
"t-V
November 21, 1989
City Attorney Roy stated that from the City's viewpoint, a distinction
could be.made showing there was no obligation for the City to exhaust its
revenues against a personal obligor, even if the provisions in the
agreement applied, before the City can turn to the property.
Mayor Winokur asked if Lake Shore Estates was required to foreclose on
property.
Bill Wyatt, representing Lake Shore Estates, stated that he did not handle
the foreclosure.
Mayor Winokur asked about the source of the money for the City's portion of
the street oversizing costs, that was represented by the amount in the note.
Lucia Liley, representing Dueck Companies, stated the money came from bond
proceeds.
Mayor Winokur asked if Dueck Companies made the payments that were provided
for in the Master Agreement in terms of building permits and additional"
assessment payments.
Lucia Liley, representing Dueck Companies, stated there was no assessment
linked to the note and added there were no requirements regarding building
permits. She stated the payments were deferred on behalf of the City until
"x" number of street oversizing payments had been made, so the City did not
have to make any payments until a certain number of street oversizing
payments had been made.
Councilmember Edwards asked about Council's responsibility as it related to
making a determination regarding what was constitutional.
City Attorney Roy stated that Council was not expected to be constitutional
experts and encouraged Council to decide what is fair under the
circumstances, between the agreement and the original findings.
Mayor Winokur asked if Dueck Companies paid oversizing fees to the City
with regard to the payment obligations on SID #86.
Lucia Liley, representing Dueck Companies, stated Dueck Companies did not
pay oversizing fees to the City which caused the delay in the City's
payment on the note.
Mayor Winokur asked what Dueck Companies paid to the City in exchange for
the note.
Lucia Liley, representing Dueck Companies, stated that funds were not
transferred back to the City and noted the bond issue was increased by that
amount and the assessments in the increased amount were levied against the
property. She added the note (which was one of three notes) provided
payments were to be made directly to the Dueck Companies along with the
-627-
November 21, 1989
other property owners, regardless of transfers and payment of assessments, I
as they were not conditions in the note document.
Councilmember Kirkpatrick asked about the opportunity to modify the
decision of the Financial Officer.
City Attorney Roy stated that Council does have the opportunity to modify
the decision and explained that Council does not have the opportunity to
remand the decision to the Financial Officer for reconsideration.
Councilmember Kirkpatrick made a motion, seconded by Councilmember Horak,
to modify the decision in the Murr appeal, based on the stipulated acreages
agreed to by Dueck Companies and Lake Shore Estates, to reduce the Murr
assessment by $9,942.55 to be proportionately allocated between the Dueck
Companies and Lake Shore Estates, with 16.2% assessed to the Dueck
Companies and 83.6% assessed to Lake Shore Estates.
Mayor Winokur stated he would support the motion. He stated the
requirements of notice and due process were afforded and added that the
Murr property was entitled to be part of the reallocation. He noted the
importance of properly computing the assessments.
Councilmember Azari stated she supported the motion since it contributed to
the establishment of fairness.
The vote on Councilmember Kirkpatrick's motion to modify the decision in
the Murr appeal, based on the stipulated acreages agreed to by Dueck
Companies and Lake Shore Estates, to reduce the Murr assessment by
$9,942.55 to be proportionately allocated between the Dueck Companies and
Lake Shore Estates, with 16.2% assessed to the Dueck Companies and 83.6%
assessed to Lake Shore Estates was as follows: Yeas: Councilmembers Azari,
Edwards, Horak, Kirkpatrick, and Winokur. Nays: None. (Councilmember
Mabry withdrawn)
THE MOTION CARRIED.
Mayor Winokur directed the City Attorney to prepare for Council
consideration on December 5 a resolution containing the findings of fact
consistent with Council's decision and stated the matter would be continued
for Council's final decision upon consideration of that resolution.
Mayor Winokur made a motion, seconded by Councilmember Horak, to modify the
decision of the Financial Officer with regard to the Lake Shore appeal only
to the extent that it accommodates the adjustments referenced in the
Council's findings on the Murr appeal; i.e. that the assessments be
proportionally increased by the amount of their proportionate share on an
acreage basis of the note that is being credited to the Murr property to
reduce those assessments (the $9,942.55 reduction).
City Attorney Roy asked if the intent of the motion was to ipreclude any
subsequent motions that might modify the method of reallocation or just to '
November 21, 1989
' be sure that, as to those two properties, whatever method of allocation is
ultimately approved, the acreages are adjusted.
Mayor Winokur stated his motion was to uphold the Financial Officer's
decision in all regards with one minor modification.
City Attorney Roy clarified that the decision to reallocate on the square
footage basis between these 2 properties would be upheld except for an
adjustment as to the actual amount of acreage involved.
Mayor Winokur addressed the concerns raised by Lake Shore Estates as
follows:
1. Regarding the question of improper, misleading notice and lack of
jurisdiction, he stated the argument raised was that the City didn't
conduct a fair hearing because it had predetermined the reallocation
amount. He stated he didn't believe this was the case because a) the
Financial Officer came up with a finding somewhat different from the City
Engineer's recommendation and b) the Code empowers the City rather than
just limiting it. He stated that whether or not the Master Agreement was
violated, didn't preclude the Financial Officer from using any of the
methods of apportionment that are provided for in the Code.
2. With regard to the
allegation of procedural errors prior to and
at the
hearing, based on his review of the transcripts and appeals, he stated
that
all parties were given full and fair opportunity to present their
and arguments and to review and respond to the appeals and arguments
appeals
of all
the other parties. He
believed due process had been provided for
in the
procedure.
3. With regard to the argument on abuse of discretion, Mayor Winokur
stated that the Financial Officer properly used an equitable method of
determining benefits and apportioning assessments on the property in the
square footage methods. It was not an abuse of his discretion and was a
reasonable and proper method of assessing the benefits conveyed by the
improvements in the special improvement district to the property.
4. Finally, based on the information presented, subject to the minor
modification stipulated by the two parties, Mayor Winokur stated that the
amount of area calculated in the property is correct.
Mayor Winokur stated he believed that it was a reallocation and stated the
procedure provided Lake Shore an additional option to place them in a
better position. He stated under the reallocation proposal, Lake Shore
would not be in default with the reallocation assessment being lower than
on the 407 acres and noted the reduction in the amount of payments. He
added Lake Shore had the opportunity to make the installment assessment
payment along with the opportunity to default with the note due and
payable. He disagreed with the allegation that it would be detrimental if
the City called the full amount of the assessments due and payable and
stated it was an empowerment of the City which allowed it to become due and
payable. He added that it was up to the City to exercise that power.
-629-
November 21, 1989
Councilmember Kirkpatrick stated she believed it was a reallocation rather
'
than a reassessment and stated the responsibility to reallocate the
assessment rested with the property owners at the time of foreclosure. She
noted that the owners failure to reallocate the assessment placed the City
in a position to evaluate the situation and stated she believed that the
City's Financial Officer used rational methods to assess the benefits. She
noted the method that was used by the Financial Officer to assess the
benefits in the case of Lake Shore provided for equities in benefits and
stated she would support upholding the decision.
Councilmember Azari stated she supported upholding the decision of the
Financial Officer and stated the process was fair. She noted the City Code
was followed and added the reallocation followed reasonable methods, with
the exception of the issues relating to the Murr property.
Councilmember Edwards stated that due process was allowed and commented on
the openness of the hearing. He added the Financial Officer acted within
the Code and applied a proper and fair method of reallocation to determine
the calculations. He noted the improvements that were made service a wide
area.
Councilmember Horak spoke in favor of the motion and commented on due
process being followed. He commented on the benefits following the
property versus allocating costs and elaborated on the types of
improvements that were made regarding developments and the standards that
were followed. He stated the area standard was a reasonable and fair
standard to achieve the allocation benefit and noted that staff had used
a
the standard on prior occasions.
The vote on Mayor Winokur's motion to modify the decision of the Financial
Officer with regard to the Lake Shore appeal only to the extent that it
accommodates the adjustments referenced in the Council's findings on the
Murr appeal; i.e. that the assessments be proportionally increased by the
amount of their proportionate share on an acreage basis of the note that is
being credited to the Murr property to reduce those assessments (the
$9,942.55 reduction) was as follows: Yeas: Councilmembers Azari, Edwards,
Horak, Kirkpatrick, and Winokur. Nays: None. (Councilmember Mabry
withdrawn)
THE MOTION CARRIED.
Mayor Winokur directed the City Attorney to prepare for Council
consideration on December 5, a resolution containing the findings of fact
consistent with the Council's decision on the appeal and stated the matter
would be continued for Council's final decision upon consideration of that
resolution.
Councilmember Horak made a motion, seconded by Councilmember Edwards, to
uphold the decision of the Financial Officer with regard to the Dueck
appeal including the modifications that were referenced in the Murr appeal,
(that the assessments be proportionally increased by .the amount of the
'
-630-
November 21, 1989
' proportionate share on an acreage basis of the note that is being credited
to the Murr property to reduce those assessments, the $9,942.55 reduction).
Mayor Winokur pointed out that money represented by the note did not come
from the Dueck properties, rather it came from the bond holders and stated
it was attached to the role and responsibility of the Dueck Companies as
owners of the property. He stated it was clear from the evidence presented
to Council that the City received no payment in consideration for the
street oversizing note and stated that to pay the proceeds of the note to
the Dueck Companies would be a gift. He explained that gifts from the City
to private entities were prohibited by the Charter and stated for the note
to be valid and legally binding, it would envision that the Dueck Companies
were the property owners. He stated that since the bondholders came up
with the money, the proceeds should be used to repay the bondholders.
Councilmember Azari stated she supported upholding the decision of the
Financial Officer and that the process was fair. She noted the City Code
was followed and added the reallocation followed a reasonable method, with
the exception of the issues relating to the Murr property. '11
The vote on Councilmember Horak's motion to uphold the decision of the
Financial Officer with regard to the Dueck appeal including the
modifications that were referenced in the Murr appeal, (that the
assessments be proportionally increased by the amount of their
proportionate share on an acreage basis of the note that is being credited
' to the Murr property to reduce those assessments, the $9,942.55 reduction)
was as follows: Yeas: Councilmembers Azari, Edwards, Horak, Kirkpatrick,
and Winokur. Nays: None. (Councilmember Mabry withdrawn)
THE MOTION CARRIED.
�I
Mayor Winokur directed the City Attorney to prepare for Council
consideration for December 5 a resolution containing findings of fact
consistent with Council's decision and stated the matter would be continued
for Council's final decision upon consideration of the resolution.
Councilmember Mabry left the meeting at approximately 10:10 p.m.
Other Business
Councilmember Kirkpatrick asked staff to prepare a resolution in support of
Thane Michie's nomination to a seat on the American Public Power
Association Board of Directors for Region 1.
Mayor Winokur asked that the Ethics Review Board. review the area of
Councilmembers serving in an official capacity as officers or directors of
private organizations and return to Council with a recommendation with
regard to a policy.
S-930
November 21, 1989
Adjournment I
Councilmember Kirkpatrick made a motion, seconded by Councilmember Azari,
to adjourn the meeting. Yeas: Councilmembers Azari, Edwards, Horak,
Kirkpatrick, and Winokur. Nays: None.
The meeting adjourned at 10:20 p.m.�
sm Ill Ilk, I-Ir
Mayor
C
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