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HomeMy WebLinkAboutMINUTES-05/05/1981-RegularMay 5, 1981 COUNCIL OF THE CITY OF FORT COLLINS, COLORADO Council -Manager Form of Government Regular Meeting - 5:30 p.m. A regular meeting of the Council of the City of Fort Collins was held on Tuesday, May 5, 1981, at 5:30 p.m. in the Council Chambers in the City of Fort Collins City Hall. Roll call was answered by the following Council - members: Cassell, Elliott, Horak, Knezovich, Kross, Reeves, and Wilmarth. Absent: None. Staff Members Present: Arnold, Liley, Lanspery, Krajicek, Lewis, and C. Smith. Agenda Review: City Manager City Manager Arnold noted that this meeting would be the last meeting to begin at the usual 5:30 p.m. starting time and that beginning May 19th, meetings would begin at 6:30 p.m. Councilman Cassell asked that Item #24, Resolution Authorizin the City to Enter into an A reement with the Parkwood Property wners Association an Everitt Enterprises for the Purpose of Utilizing Parkwood Lake for Storm rainage, be removed from the Consent Calendar. Councilman Elliott requested Item #22, Resolution Adopting Bylaws for the Landmark Preservation Commission, be withdrawn. Councilman Horak requested the removal of Item #21, Resolution Authorizi the City hlanager to Enter into an A reement with Black and Veatch for t rovision of Enqineerinq Services not to Exceed 50.000. Councilman Knezovich 70, 1981, Appropriati Fund, be withdrawn fr asked that Item ##16, g Prior Year Reserves m the Consent agenda. 167 Second Reading of Ordinance No. in tie Economic Development Act Consent Calendar '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. 4. Consider Approvin the Minutes of the Regular Meeting of April 21, 98 and the Adjourned Meeting of Apri 28 98 . 5. Second Reading of Ordinance No. 59, 1981, Changingthe Time Set for egk—u�ar eetings o t e It ounce r o m p.m. o p.m, This Ordinance was unanimously adopted on First Reading on April 21st. At the adjourned meeting of April 14, Council expressed a desire to change the time of the regular City Council meetings from 5:30 p.m. to 6:30 p.m. This Ordinance would enable this change. The May 19th meeting will be the first meeting affected by the change. 6. Second Reading of Ordinance No. 60, 1981, Appropriatin Funds to Cover the Increased Premium for Employee Medical Insurance. ' This Ordinance was unanimously adopted on First Reading on April 21st and appropriates funds received from the Pacific Mutual premium deposit fund to be used for payment of the increased monthly employee insurance premium. When the 1981 budget was prepared, the premium was $73/employee/month and has now increased to $88.66/employee/month. 7. Second Reading of Ordinance No. 61, 1981, Appropriating Unanticipated Revenue in the General Fund. This Ordinance was adopted by a 6-1 vote on First Reading on April 21st. The Police Department has been awarded a reimbursable grant from the Colorado Division of Highway Safety totalling $8,472 to implement a program of selective traffic enforcement. These funds will be used to purchase a fully equipped police motorcycle, a police motorcycle radio, a helmet with remote speaker, and an electronic speed measuring device. 8. Second Rea ding of Ordinance No. 62, 1981 Appropriating Unanticipated �e 'venue' in one S.A VF rant un This Ordinance was unanimously adopted on First Reading on April 21st. The City of Fort Collins has been awarded a grant totalling $24,905 from ACTION/United Way for Phase II of the Save America's Vital Energy I Project. 168 ' 9. Second Read of Ordinance fdo. 63, 1981, Vacatin Utility Easements Between ots an ory nn states u tvtston. This Ordinance was unanimously adopted on First Reading on April 21st and is a City -initiated request to vacate existing utility easements between Lots 12 and 13 in the Lory Ann Estates Subdivision. 10. Second Reading of Ordinance No. 64, 1981, Vacating Easements in Block 2, agon Whee i tng This Ordinance was unanimously adopted on First Reading on April 21st and is a request to vacate easements in Wagon Wheel First Filing. Originally these easements were dedicated on the recorded plat as easements for use and enjoyment granted to adjacent property owners. After- some consideration the applicant has determined this approach is undesirable.and unnecessary and is requesting the vacation. 11. Second Reading of Ordinance No. 65, 1981, Vacating an Access and Parking Easement Between Lots and 14 to the Rep at of North .hore PUO. This Ordinance was unanimously adopted on First Reading on April 21st and is a request to vacate a parking and access easement between Lots ' 9 and 14 in the North Shore PUD. The vacation of the existing ease- ment will allow necessary changes to the building envelopes but will not require replatting of the lots. 12. Second Reading of Ordinance No. 66, 1981, Annexing Property Known as Arbor ommercta Annexation. This Ordinance was unanimously adopted on First Reading on April 21st and is a request to annex 25 acres located at the southwest corner of the intersection of Harmony Road and College Avenue. The site is zoned T-Tourist in the County and has one residence on it. 13. Second Reading of Ordinance No. 67, 1981 Zoning Property Known as Arbor ommercta Annexation. This Ordinance was unanimously adopted on First Reading on April 21st and is a request to zone the property known as the Arbor Commercial Annexation. Applicant is requesting zoning the 25 acres H-B, Highway Business. 14. Second Reading of Ordinance No. 68, 1981, Reappropriating 1980 Funds. This Ordinance was unanimously adopted on First Reading on April 21st. At the end of December, 1980, a City Charter provision (Article V, Section 10) existed whereby all appropriations unexpended or 169 15. 16 cumbered at the en' of the budqet year lapsed to the applicable ' sjpEzii;al or general fund. All capital' projects and/ur- grant appro- p ra.�Rions not spent or encumbered by the end of 1980, therefore, tbWritJ. As a result, we need to reappropriate these lapsed 1980 arWriations in order to complete the projects/grants. SFararrd Reading of Ordinance No. 69, 1981 Appropriating Unanticipated RSmmues nn the_ apita ProOects Fund. 'F%s, irdinance was unanimously adopted on First Reading on April 21st_ At the time the Capital Projects Fund was established, storm Ab-aimage capital projects were budgeted in the Storm Drainage Fund and t1e -:.even Year Capital Fund. In order to consolidate project budgets and imclude the storm drainage capital projects in the Project Manage- ment "Control System, certain projects need to be appropriated in the Capit,al Projects Fund. Reading of Ordinance No. 70, I981 Appropriating Prior Year in the Economic Deve ooment Art Fnni_ This Ordinance was unanimously adopted on First Reading on April 21st_ The Economic Development Act (EDA) Fund contained grant monies provi0ing funding for several projects. Included were the Northside Comm ity Center and the solar systern for the new Municipal Building. kudit fees of $4,000 are now due for these two projects. There is a total of $5,941 in EDA Fund prior year reserves. This Ordirance appropriates $4,000 from the EDA reserves for payment of the audit. fees. 17. Secand Reading of Ordinance No. 71, 1981 Appropriating Prior Year Reserves in the RevenuiF—arin Fund. This Ordinance was unanimously adopted on First Reading on April 21st and appropriates the $11,000 in the Revenue Sharing Fund to pay for the City's share of the appraisal cost of the real property on the proposed "City/ County" block. 18. Tablin of Hearin and First Readingof Ordinance No 47 1981 n opting a Noise ontro r finance. Staff recommends tabling of this Ordinance until May 19. 19. Hearin and First Readin of Ordinance No. 72, 1981, Amendin Article o e o e o t o l' y o Fort o ins a atin to l'remen s an Policemen's Pension Funds. An actuarial study of the Fire and Police Pension Funds has just been completed by A.S. Hansen and Co. The results of the study indicate 170 that the annual contributions into the two funds have been in excess of the amounts required. Staff and the Police and Fire Pension Boards recommend that the normal City contribution rate for Police and Fire Pension Plans be decreased to eight percent (8%). The employee contribution rate will continue to be eight percent (8%). This is consistent with the current State pension plan and Poudre Valley Fire District rates. 20. Resolution Approving an A reement with Larimer County for the Collec- tion of the rty s 90 Use ax on utomo i es Registered within t e City Limits. The City entered into an agreement with Larimer County on April 11, 1971 for the collection of the City's use tax on automobiles regis- tered within the city limits, and this agreement is still in effect. This new agreement will supersede this agreement and will allow the County to withhold its 5% collection fee from the total City tax collected rather than the City pay the County its 5% collection fee within ten days of receipt of the taxes collected, as set out in the existing agreement. 21. Resolution Authorizing the City Manager to Enter into an Agreement with Black and Veatch for the Provision. of Engineering Services not to This Resolution would authorize the City Manager to enter .into an agreement with Black and Veatch to provide engineering services for - improvements at Water Treatment Plant No. 1. 22. Resolution Adopting Bylaws for the Landmark Preservation Commission. 23 The Landmark Preservation Commission adopted bylaws at its April 22nd meeting. In accordance with the Ordinance creating the Landmark Preservation Commission, the Commission's bylaws require Council approval by Resolution before they can take effect. Resolution Endorsin the Actions of the PRPA Board of Directors e ating to t e sta is ment o a o�nt Loa ontro rea it u is Service. For some six months, PRPA has been working on a problem with the Western Area Power Administration (WAPA) on load control. The PRPA Board has considered the problem and has resolved it to the Board's satis- faction. Now the four cities of PRPA need to adopt the Resolution backing the decision of the Board. 171 . 24. Resolution Authorizing the City to Enter into an Agreement with the ' Parkwood Property Owners Association and Everitt Enterprises for the Purpose o Uti izing Parkwood Lae for Storm Drainage. The purpose of the agreement between the City, the Parkwood Property Owners Association and Everitt Enterprises is to formalize the res- ponsibilities for stormwater control and maintenance at the lake, so that a sedimentation control structure and an automatic outlet can be constructed during 1981 at the lake. 25. Adoption of Minority Business Enterprise Plan. As part of our grant application to the Urban Mass Transportation Administration (UMTA) for four new buses and a facility, a Minor- ity Business Enterprise Plan is required. Staff believes that this plan well satisfies the purposes of the grant and is appropriate given the nature and composition of minority business enterprises in the Fort Collins area. Staff recommends the adoption of the plan. 26. Routine Deeds and Easements. The following are routine deeds and easements requiring Council approval. They have been reviewed by the affected departments and legal staff. A. Power line easement from James Street Builders, Inc. located at ' 1300 West Stuart Street (Lot 26 of Village Park P.U.D.), needed to provide electric service to that subdivision. Consideration: $1.00. B. Street and easement dedication from Fort Collins Jewish Community Center. This document grants to the ity a 5 -foot wide street right-of-way and an 8-foot wide utility easement on Drake Road. Consideration: $1.00. Ordinances on Second Reading were read by title by Wanda Krajicek, City Clerk. Item #5. Second Readiof or egu ar ng eeti p.m. rdinance No. 59, 1981, Changi s o the City ounce Tom Item #6. Second Reading of Ordinance No. 60, 1981, A Cover the ncreased Premium for Emp I oyee Time Set m -opriating Funds to edica In nSurance. Item #7. Second Readin of Ordinance No. 61, 1981, Appropriating Unanti- cipa e evenue in tle enera un Item #8. Second e2diunonftO iRevene hrdin.2 1981 Appropriating Unanti- cpated eST.cFund. ' 172 ' Item #9. Second Reading of Ordinance No. 63, 1981, Vacating Utility asements Between Lots 12 and , Lory Ann Estates u ivision. Item #10. Second Reading of Ordinance No. 64, 1981, Vacati Block 7, Wagon Wheel Filing 1. Item #11. Second Reading of Ordinance No. 65, 1981, Vacatin Parking Easement Between Lots 9 and 14 in the Easements in an Access and Item #,12. Second Reading of Ordinance No. 66, 1981, Annexing Property Known as Arbor ommercia Annexation. Item #13. Second Readinciof Ordinance No. 67, 1981, Zoning Property Known as Ar or ommercia Annexation. Item #14. Second Reading of Ordinance No. 68 1981 Reappropriating 1980 Funds. Item #,15. Second Reading of Ordinance No. 61, 1981, Appropriating Unanti- cipated Revenue Tn t e CapitalProjects und. Item #17. Second Reading of Ordinance No. 71 1981, Appropriating Prior Year Reserves in the Revenue Sharing Fund. Councilman Kross made a motion, seconded by Councilman Knezovich, to adopt and approve all items not removed from the Consent Calendar. Yeas: Councilmembers Cassell, Elliott, Horak, Knezovich, Kross, Reeves, and Wilmarth. Nays: None. THE MOTION CARRIED. Ordinance Adopted on Second Reading Appropriating Prior Year Reserves in the Economic Development Act Fund Following is the City Manager's memorandum on this item: "The Economic Development Act (EDA) Fund contained grant monies providing funding for several projects. Included were the Northside Community Center and the solar system for the new Municipal Building. Audit fees of $4,000 are now due for these two projects. This Ordinance was unanimously adopted on First Reading on April 21st. There is a total of $5,941 in EDA Fund prior year reserves. This Ordinance ' appropriates $4,000 from the EDA reserves for payment of the audit fees." 173 1 Councilman Knezovich noted that he had an apparent conflict of interest on this item and asked that the record show he withdrew from vote and discus- sion. Councilman Cassell made a motion, seconded by Councilman Elliott, to adopt Ordinance No. 70, 1981, on Second Reading. Yeas: Councilmembers Cassell, Elliott, Horak, Kross, Reeves, and Wilmarth. Nays: None. (Knezovich withdrawn). THE MOTION CARRIED. Resolution Authorizing the City Manager to Enter into an Agreement with Black and Veatch for the Provision of Engineering Services not to Exceed $150,000 Following is the City Manager's memorandum on this item: "It is recommended that the City enter into a contract with Black & Veatch Consulting Engineers to provide engineering services with regard to needed improvements at Water Treatment Plant No. 1. Such services would be provided for a fee not to exceed $150,000. The staff also recommends that ' Black & Veatch be contracted with, at the appropriate time, for all engi- neering services required for future phases of this project. Included in the 1981 Water Fund budget is $150,000 for engineering services to evaluate and recommend improvements regarding the treatment process, chemical feed, flow monitoring and control, diversion structure, backwash and sludge handling facilities, and plant hydraulics at Water Treatment Plant No. 1. s In accordance with the Capital Project Management/Control System (CPM/CS), requests for proposals were sent out on March 12th to numerous engineering firms who were considered to possibly have the necessary qualifications to perform the work. All proposals were to be completed and sent to the Purchasing Agent by April 3rd. On April 3rd, the Purchasing Agent received proposals from the following ten (10) engineering firms: James M. Montgomery M & I ARIX McCall, Ellingson & Morrill Engineering Professionals Black & Veatch Camp, Dresser & McKee Brown & Caldwell Water & Air Research Boyle Corporation In accordance with CPM/CS, a committee was formed to evaluate the propo- sals. The committee consisted of the following personnel: 174 ' Dr. Dave Hendricks, CSU Opal Dick, City Purchasing Department James Hibbard, Water Utilities Ben Alexander, Water Utilities Michael Smith, Water Utilities Under the guidelines of the CPM/CS, the committee evaluated the ten (10) firms. The top three (3), which were James J. Montgomery, Brown & Caldwell and Black & Veatch, were evaluated a second time at personal interviews. After the interviewing, the committee determined that Black & Veatch could best provide the required services. At that point in time, the City proceeded with negotiations with Black & Veatch regarding the specific scope of work and cost." Councilman Horak questioned the staff recommendation that Black and Veatch be contracted with at the appropriate time for all engineering services required for future phases of the project. City Manager Arnold replied that the past Council had asked that anytime staff anticipated there would be future phases of a project, that fact be highlighted in the contract and bidding documents. He added that all future phases of a contract would come back to Council and would not be handled administratively. ' Councilman Horak noted that he would be in favor of future phases being open to bid, adding that he felt the original firm has unfair advantage. City Manager Arnold noted that Councilman Kress had expressed a similar - concern and since this concept is a difference from staff's original direction from Council, he suggested that staff come back with information to change and clarify this policy. Councilman Kross asked if a cost estimate for additional phases of this project was part of the Phase I contract. City Manager Arnold replied that it was not. Councilman Kross noted that in his business dealings he had not found the automatic awarding of future phases of a contract to the Phase I contrac- tor, to be a common practice. Councilman Horak asked what the advantages are to the City. Mike Smith, Director of Operations, replied that it shortened the time spent and saved money in that the City does not have to go through the interview and selection process again. Councilman Knezovich asked if it would create any problem or hardship if this item were tabled to May 19th. 175 Mike Smith replied that it was important to get the contract started ' because part of the work is evaluating the process at Water Treatment Plant #2. This is critical because of the changes in the color of the water due to spring runoff. To delay the contract now might mean delaying until next year. City Manager Arnold noted that a review of the consultant selection proce- dure would be on the agenda of the May 12 work session. Councilman Kross made a motion, seconded by Councilwoman Reeves, to adopt this Resolution with the understanding that staff will come back with further information on the concerns expressed. Yeas: Councilmembers Cassell, Elliott, Horak, Knezovich, Kross, Reeves, and Wilmarth. Nays: None. THE MOTION CARRIED. Resolution Adopting Bylaws for the Landmark Preservation Commission Following is the City Manager's memorandum on this item: "The Landmark Preservation Commission adopted bylaws at its April 22nd ' meeting. In accordance with the Ordinance creating the Landmark Preserva- tion Commission, the Commission's bylaws require Council approval by Resolution before they can take effect. The proposed bylaws are attached for your review. The Building Inspection office provides staff support for the Commission." Councilman Elliott asked about the purpose and objectives of the Commission and asked if they overlapped other Boards and Commissions such as the Planning and Zoning Board. City Attorney Liley replied that she did not believe there was duplication and added that the ordinance creating the Commission and setting forth its responsibilities had been adopted several months ago. Councilwoman Reeves made a motion, seconded by Councilman Elliott, to adopt this Resolution. Yeas: Councilmembers Cassell, Elliott, Horak, Knezovich, Kross, Reeves, and Wilmarth. Nays: None. THE MOTION CARRIED. Resolution Authorizing the City to Enter into an Agreement with the Parkwood Property Owners Association and Everitt Enterprises for the , Purpose of Utilizing Pdrkwood Lake for Storm Drainage Following is the City Manager's memorandum on this item: 176 ' "Parkwood Lake receives stormwater runoff from a tributary area generally westerly from the lake, lying approximately 1/4 mile north and south of Drake Road, and from College Avenue on the west to Lemay Avenue on the east. In 1965, Les Everitt agreed to accept the natural runoff into the lake as long as there was control of sedimentation in the stormwater arriv- ing at the lake. The City is responsible for whatever structures are necessary to control sedimentation from stormwater. In the ensuing years, development continued to take place in the tributary area, and storm drainage lines were installed to the lake. A hydrologic analysis of the area indicated that the lake level would increase by 4.2 feet during the 100 year runoff. Until recently there was no reliable outlet for stormwater from the lake. With the development of the Parkwood East Subdivision, an outlet pipe was constructed to carry water to Spring Creek. The purpose of the agreement between the City, the Parkwood Property Owners Association and Everitt Enterprises is to formalize the responsibilities for stormwater control and maintenance at the lake, so that a sedimentation control structure and an automatic outlet can be constructed during 1981 at the lake. This will resolve questions which have remained un- answered for many years pending completion of drainage studies and instal- lation of an outlet pipe from the lake to Spring Creek. Alternatives to this approach involve building storm drain lines at cost estimates in excess of $1 million. At the present time, the level of Parkwood Lake is being lowered to accom- modate the installation of irrigation structures for the First Christian Church. As long as the lake level is down, this is the opportune time to construct the sedimentation control structure and the automatic outlet. Everitt Enterprises has had design alternates completed and has taken bids for the sedimentation structure and outlet pipe. The low bid received for the concrete alternate, including associated work, engineering and contin- gency is $79,909. The concrete structure is preferred by the Homeowners Association representatives. The cost is higher than originally estimated, due to the difficulties which the contractors anticipate of working in the soft material a the edge of the lake. The cost of the project will be paid from the 1981 budget for storm drainage capital for unspecified projects. City staff has met several times with representatives of the Parkwood Property Owners Association and Everitt Enterprises (the developer of the Parkwood Subdivision) for the purpose of concluding an agreement between the three parties relative to storm drainage considerations at Parkwood Lake. ' In summary the agreement specifies that: 177 0 the City will construct a sedimentation control structure and an auto- , matic outlet device at the lake, at a cost of $79,909. A the City agrees to remove sediment and maintain the structures. 0 the Property Owners Association agrees that the lake will be used for storm drainage detention purposes for major rainfalls. 0 the Property Owners Association will be responsible for sedimentation and weed control in the remainder of the lake. The Storm Drainage Board has reviewed the Parkwood Lake issue and recom- mends approval of the agreement." Councilmembers Cassell and Kross asked that the record show they did not participate in vote or discussion on this item due to a conflict of inter- est. Councilwoman Reeves made a motion, seconded by Councilman Elliott, to adopt this Resolution. Yeas: Councilmembers Elliott, Horak, Knezovich, Reeves, and Wilmarth. Nays: None. (Cassell and Kross withdrawn) THE MOTION CARRIED. Receiving the City's Comprehensive I Annual Financial Report for 1980 Including the Auditor's Opinions Following is the City Manager's memorandum on this item: "Due to the physical size of the Comprehensive Annual Financial Report, it is not included in the Agenda. The Finance Committee has tentatively scheduled a meeting on May 12, 1981, to discuss the Report and the Annual Audit process with the City's external auditor - Clifton, Gunderson and Company." . City Manager Arnold noted that the financial review of the audit report with the auditors had been scheduled for the May 12 work session. Ordinance Adopted on First Reading Vacating a Portion of Tract B Between Lots 45 and 46, Village West Eighth Filing Following is the City Manager's memorandum on this item: "The applicants, property owners adjacent to the tract, have requested I the vacation of a portion of Tract B, a 1.02 acre detention area, in Village West Eighth Filing. The applicants have indicated that the area has become the source of neighborhood problems. 178 ' The specific area requested for vacation provides pedestrian access to Tract B and to Rolland Moore Park. There is a 15-foot easement from the north of Winfield Drive into Tract B. As the attached map indicates Tract B is bordered on the east by the New Mercer Canal which runs along the western edge of Rolland Moore Park and the Fisher Open Space area. The City staff has reviewed the request and would like to maintain all accesses to Rolland Moore Park. The Master Plan for the Park indicates that the bridges across the New Mercer Canal would be constructed to facilitate pedestrian access from the Village West area to the Park. The construction and development of Rolland Moore Park is scheduled for mid - November 1981. It is crucial to the ultimate viability and success of the Park to provide pedestrian access from the adjacent neighborhood into the Park. Staff recommends denial of the request." Don Huss, 1412 Independence, appeared to oppose the staff recommendation of denial of the easement vacation. He noted the problems with vandalism that he had experienced due to the easement. He asked Council to vacate the easement. He suggested access in the Winfield Drive area. Joan Huss, 1412 Independence, also spoke in favor of the easement vacation. Councilman Horak moved that the Ordinance be tabled until May 19 when staff can present more factual material as to the benefits of retaining this easement. The motion died for lack of a second. Councilman Knezovich made a motion, seconded by Councilman Kross, to adopt Ordinance No. 73, 1981, on First Reading. Yeas: Councilmembers Cassell, Elliott, Knezovich, Kross, Reeves, and Wilmarth. Nays Council- man Horak. THE MOTION CARRIED. Resolution Adopted as Amended Authorizing Official Notice of Bond Sale for City of Fort Collins Sales and Use Tax Revenue Bonds in the Aggregate _i Principal Amount of $5,700,000 Following is the City Manager's memorandum on this item: "The 1981 Budget includes debt financed street capital projects totalling $5.12 million to be completed in 1981 and 1982. I The bond sale includes 2 issues of sales tax revenue bonds to be structured as follows: 179 4 $1,500,000 - 5 year maturity for street rehabilitation ' 0 $4,200,000 - 20 year maturity for street improvements (includes $500,000 debt reserve and $80,000 issuance expenses.) The attached information from Bond Counsel (DeMuth, Kemp & Backus) and our Financial Advisory (Boettcher and Company) provides additional details concerning the proposed sales schedule and structure." Ron Wood suggested that the interest rate on page 4 of the Resolution be amended from 12% to 14% to provide flexibility to the bidders on the bonds. Dunn Krahl, Boettcher and Company appeared to answer CounciI's questions regarding the options available to Council as well as the proposal as presented. Councilman Elliott made a motion, seconded by Councilwoman Reeves, to amend page 4 of the Resolution to read 14% instead of 12%. Yeas: Councilmembers Cassell, Elliott, Horak, Knezovich, Kross, Reeves, and Wilmarth. Nays: None. Councilwoman Reeves made a motion, seconded by Councilman Cassell, to adopt this Resolution as amended. Yeas: Councilmembers Cassell, Elliott, ' Horak, Knezovich, Kross, Reeves, and Wilmarth. Nays: None. THE MOTION CARRIED. Citizen Participation A. Proclamation naming the week of May 11, 1981 to May 17, 1981 as Save Our Fuel Week. Sue Henderson, Junior Women's Club of Fort Collins, accepted the proclamation on behalf of her organization. B. The Proclamation naming 1981 as Red Cross Centennial was for- warded to the appropriate persons. Appeal from Decision of Liquor Licensing Authority - Richard Weaver d/b/a Pop Shoppe- Campus Exxon, 1331 W. Elizabeth, Decision Reversed Following is the City Manager's memorandum on this item: "In February of this year, Richard and Rebecca Weaver d/b/a Pop Shoppe- ' Campus Exxon, located at 1331 W. Elizabeth, applied to the Liquor Licensing Authority for an off premise 3.2 beer license. At its March 4th hearing, the Liquor Licensing Authority voted 2-2 on ' a motion to approve the appli- cation. The tie vote resulted in the failure of the motion to approve the license. There was no affirmative motion to deny the license at the March 4th hearing. The resolution containing the findings and. conclu- sions of that hearing and denying the license was unanimously adopted April 1, 1981. On April 10, 1981, the City Clerk received an appeal from the decision of the Liquor Licensing Authority to the City Council. Upon recommendation from the City Attorney, this hearing should be on the record and no new evidence should be considered. The hearing will consist of a review of the transcript of the hearing before the Liquor Licensing Authority (a copy of the transcript accompanies this memo) and any presentation by the appel- lant. The City Council has the following options: 1. Sustain the decision of the Liquor Licensing Authority. 2. Reverse the decision of the Liquor Licensing Authority. 3. Return the matter to the Liquor Licensing Authority for further hearing. I You will note that the hearing procedure which was read prior to the L.L.A. ' hearing on this matter and is included in the accompanying transcript, states in part that: "The burden is upon the applicant to satisfy this Authority that the reasonable requirements of the relevant neighborhood for the kind of license applied for are not presently being adequately satisfied." The Council's action should be based upon the needs of the neighborhood and the desire of the inhabitants of the neighborhood." Joe Carroll, attorney representing Richard Weaver, noted Mr. Weaver's application to the Liquor Licensing Authority had requested a 3.2% off premise beer license for the Pop Shoppe, 1331 W. Elizabeth. He further noted that his client felt the license should have been granted at the hearing held on March 4th. He described Mr. Weaver's petitioning procedures and stated that 250 signatures had been obtained in support of the license and that there was no opposition to the_.license presented at the hearing. hie asked that Council reverse the decision of the Liquor Licensing Author- ity and allow the license to be granted to Mr. Weaver doing business as Pop Shoppe-Campus Exxon, 1331 W. Elizabeth. 1 181 1 ' Councilman Knezovich made a motion, seconded by Councilman Horak, to reverse the Liquor- Licensing Authority's decision. Yeas: Councilrnembers Cassell, Elliott, Horak, Knezovich, Kross, Reeves, and Wilmarth. Nays: None. THE MOTION CARRIED. Report from Special Counsel Mayor Wilmarth stepped down to allow Assistant Mayor Cassell to preside over this portion of the meeting. Assistant Mayor Cassell called on Kay Norton, Special Counsel, who gave a very detailed review of her report ,which is reproduced in full as follows: 0 REPORT TO CITY COUNCIL LfL!! ' May 5, 1981 FROM: P. Kay Norton, Special Counsel CITY. MANAC RE: Possible failure to disclose and conflicts of interest on the part of Mayor Elery Wilmarth. FACTS On April 21, 1981, Burton C. Kross, a member of the Fort Collins City Council, raised issues concerning the conduct of Elery Wilmarth, council member and Mayor. Mr. Kross expressed concern whether Mr. Wilmarth had properly disclosed a financial relationship with Choicecare Health Services, Inc., whether the existence of that relationship created a conflict of interest with Mr. Wilmarth's duties as a city council member, and whether Dir.. Wilmarth was conducting business with the City or involved in a conflict of interest due to his law firm's continuing practice in the municipal Court after Mr. Wilmarth's election in 1979. On April 28, 1981, Mr. Wilmarth presented a written report to the Council responding to Mr. Kress's concerns. The City Council then chose to exercise its powers under Article II, Section 5 (e) of the Fort Collins City Charter to I ' inquire into and investigate the official acts of any officer of the City, and retained my services a,s Special Counsel., to "perform such an investigation. 182 ' A summary outline of the transactions of both Mr. Wilmarth and the City with Choicecare Health Services, Inc., is attached, showing the relative timing of the various transactions and incidents. Reference to this chart will be helpful in comparing the timing of various actions by all parties involved. In .1977, Choicecare Health Services, Inc., was formed under a Federal law governing what are known as health maintenance organizations or, HMO's. The purpose of HMMO's is to provide comprehensive health care and insurance coverage for individuals on a group basis at rates equal to or lower than those prevailing for ordinary health insurance coverage. The concept is to provide preventive health care' as well as care when problems arise, thereby avoid- ing the medical costs of undetected illnesses. The Federal law requires a municipality to contract for HMO insurance for its employees if an HMO is operating in the vicinity. Therefore, when Choicecare Health Services, Inc. was formed, Fort Collins was required to offer a Choicecare plan as an alternative insurance source for its employees. No City Council action was involved in this decision and no formal written contract was entered into between the City and Choicecare at that timer There were no negotiations regarding rates to be paid by the City or the employees covered, or what coverage would be offered. The employees had the only choice, that of opting for Choicecare coverage or remaining with the existing Pacific Mutual Insurance plan offered by the City. ' As Choicecare began providing services in the Northern Colorado area, it made plans to build and furnish facilities in Fort Collins. In order to finance the construction of its building, Choicecare sought proposals for the financing from various parties through a real estate broker. Mr. Wilmarth, as part of a partnership with Dr. Donald B. Wells, entered into a sale -lease back arrangement which provided financing for Choice - care and tax benefits to Wells-Wilmarth. The building and land on which the Choicecare facilities were constructed were deeded to the Wells-Wilmarth partnership, which then executed a note and deed of trust (mortgage) back to Choicecare requiring pay- ments from Wells-Wilmarth on the note. Choicecare then signed a lease of the facilities from Wells-Wilmarth. The mortgage payments and the lease payments were in identical amounts, thereby creating a "wash" situation in which no cash gain was realized by either party. Dr. Wells and Mr. Wilmarth would realize certain tax savings against income which they might earn in other pursuits. A cash payment of $1800.00 was made by Choicecare to Wells-Wilmarth to cover initial accounting costs and other expenses of entering into the transaction. The negotiations for this arrangement were com- pleted prior to the time Mr. Wilmarth took office as a City councilman in April, 1979• ' As a council candidate, and again as a newly elected council member, Mr. Wilmarth filed disclosure statements which did not include the arrangement with Choicecare described above. In subsequent statements filed by Mr. Wilmarth, no mention of the Choicecare relationship ever appears. 183 Throughout 1978 and 1979, Choicecare Health Services, Inc., continued to provide insurance for Fort Collins City employees. ' The terms of its provision of such insurance were never nego- tiated by the City Council or acted on by the City Council during that time. All arrangements for services were made through the personnel officer of the City. Terms for benefits provided and premiums for those benefits were not set down in writing between the parties until some time in 1979. On December 19, 1979, Choicecare Health Services, Inc., was placed into receivership upon the motion of the State Insurance Commissioner, due to Choicecare's insolvency. On that date, Mike Powers, Employee Development Director of the City, informed all City officials and employees of Choicecare's insolvency. The City Council took no formal action or vote of any kind in relation to the Choicecare insolvency until December 19, 1980, when the Council voted to intervene in a lawsuit begun by Hewlett-Packard Corporation concerning the payment of benefits to its employees. Mr. Wilmarth was not present and did not vote on that resolution. Some meetings and work sessions were held on the matter, as shown in the accompanying outline, but no vote or action was taken by the City which would a.ffect its relationship with Choicecare. After the insolvency of Choicecare in December, 1979, Choicecare became delinquent in its lease payments to Wells-Wil- marth. I After some correspondence with the State Insurance ' Commissioner, Wells-Wilmarth entered into a revised lease for the Choicecare facilities. The new lease was a short term document which continued the relationship of Wells-Wilmarth and Choicecare for a year or less. In March, 1980, a settlement was reached between the Wells-Wilmarth partnership and Mr. Arthur Roy, acting as attorney for the receiver, that Wells-Wilmarth would deed back the Choicecare real estate to the receiver in return for a one time payment of $30,000.00. The amount of $30,000.00 represented an estimate of the tax benefits to be lost by Wells-Wilmarth due to the premature ending of the sale -lease back arrangement. The agreement was approved by the Court on April 25, 1980, and the money was paid on April 30, 1980. Receipt of this payment was not reflected in Mr. Wil- marth's disclosure statement of May 16, 1980. Mr. Wilmarth is a member of the law partnership of Fischer and Wilmarth, Attorneys at Law of Fort Collins. Subsequent to his election to City Council in April, 1979, Mr. Wilmarth personally ceased representing clients in the Fort Collins Muni- cipal Court, however, his partner, Mr. Gene Fischer and an asso- ciate, Stephen Howard, did appear in the Fort Collins Municipal Court representing various clients, usually on traffic charges. 184 1 LEGAL ISSUES I. Choicecare A. Disclosure ordinance. Was disclosure of a relationship such as the one entered into by Llr. Wilmarth with Choicecare Health Services, Inc., required under Chapter 8 of the Fort Collins City Code? If so, does such a failure to disclose trigger the penalty provisions of Section.8-IF of the Code? The Fort Collins City Code requires that members of the City Council must file a disclosure statement including informa- tion of any type listed in six categories, as well as any additional information the person making the disclosure may desire. The categories and discussion of their applicability to the Wilmarth interest in Choicecare follow: 1. "The source or sources of any income, includ- ing capital gains, whether or not taxable, of the person - making disclosure and such person's spouse." Technically, the so long as Choicecare continued to live, up to its part of the bargain, the sale -lease back arrangement with Wells- Wilmarth did not generate any income, including capital gains, to Mr. Wilmarth. A potential tax benefit is not considered cash income, but -is only a possible write-off against taxable income earned from other sources. A tax benefit is not a cash asset that can be transferred, nor is it taxable in itself as income. However, upon the failure of Choicecare, the cash settlement of $30,000.00 made to Mr. Wilmarth and his partner, Dr. Wells, could be construed as income, since it converted an anticipated tax benefit to a cash settlement. The only disclosure statement upon which this payment could have been reported as income was the statement of June, 1980 filed by Mr. Wilmarth where it would be shown as a one time gain rather than a regular source of income. 2. "Any financial interest in excess of Ten Thou- sand Dollars ($10,000.00) in any business entity." Mr. Wilmarth did not hold an interest in Choicecare in the usual sense of owning stock or of having invested cash in the ongoing business. He had a financial r,§.lat-ionship with Choicecare, but not a direct interest in the entity or in its profits, if any. His financial interests consisted of an interest in Choicecare's continuing to pay its lease payments. That is not the sort of interest usually con- sidered as an interest in a business entity. 3• "The legal description of any interest in real property held or acquired for the purpose of resale at a profit owned by the person making disclosure or such person's spouse." 185 Although Wells-Wilmarth acquired title to the Choice - care real property, the partnership's stated purpose in doing so was to realize a tax benefit rather than a cash profit upon resale at a later date. The terms of lease offered Choicecare an option to repurchase after an eight year term for the balance due on the note, with no pro- vision for profit. The transaction as it was originally planned does not fit the disclosure requirement of this section. The payment actually made by the receiver after the later date of insolvency might be construed as profit. However, the parcel would not hhave had to be reported in June 1980 under this section, as it was no longer owned by Wells-Wilmarth by that date. 4. "The identity by name of all offices and directorships held by the person making disclosure and by such person's spouse." There is no question of any failure to disclose such directorships. $. "The name of each creditor to whom the person making disclosure or such person's spouse owes money in excess of Ten Thousand Dollars ($10,000.00)." Choicecare Health Services, Inc. was a creditor of the Wells-Wilmarth partnership, as Choicecare was the holder of a note and deed of trust secured by the real property owned ' by Wells-Wilmarth. Although Choicecare owed to Wells-Wil- marth an amount under the lease equal to the amount owed by Wells-Wilmarth to Choicecare, this ordinance section clear- ly requires the disclosure of any creditor no matter what the relative position of creditor and debtor, so long as more than $10,000 is involved. 6. "A list of businesses with which the person making disclosure or such person's spouse are associated that do business with or are regulated by the.City .of Fort Collins and the nature of such business or regulati-on." The City of Fort Collins was doing business with Choicecare Health Services, Inc., as the City was purchas- ing health insurance coveravje for its employees from Choice - care. Mr. Wilmarth was associated" with Choicecare by virtue of his partnership's legal ownership of the Choice - care real property, although he was not receiving any profits from Choicecare operations, nor was he involved in the operation of its business. if the term "associated with" is defined as "being employed by," then disclosure of the Wells-1:'ilmarth interest was not required by this section. However, the term "associated with" is more general that "employed by," and disclosure of sale -lease back arrangement would have been .appropriate under this section. ' SO It therefore appears that under at least two subsections of ' Section 8-113 of the City Code disclosure ordinance. Mr. Wil- marth should have disclosed his financial relationship ,with Choicecare Health Care Services, Inc. The evident intent of the Code to be inclusive of all financial interests is shown both by the length of the list of specific requirements and by the alternative offered in Section 8-lE of the Ordinance, which provides that any person subject to the provisions of this section may elect to file a copy of his income tax return rather than a disclosure statement. Certainly, Mr. Wilmarth's income tax return would have shown the Choicecare relationship of his partnership with Dr. Wells. The issue then arises whether Mr. Wilmarth's failure to disclose the interest of the Wells-Wilmarth partnership in Choicecare's facilities triggers the penalty provisions of Section 8-1F of the Fort Collins city ordinance, which provides, "Any person who willfully files a false or incomplete disclosure statement, amendment or notice that no amendment is required or who willfully files a false or .incomplete copy of any Federal income tax return or a false or incomplete certified statement of investments or who willfully fails to make any filing re- quired by this section shall be guilty of a violation of the ordinances of the City of Fort Collins, punishable as.a misde- meanor, and shall, upon conviction thereof, be punished by a fine not to exceed the limits established in Section 1-23 of the ' Code of the City of Fort Collins." The key element in determin- ing whether a person has violated Chapter 8 of the Code is whether he has "wiIIfuly" failed to disclose information. In legal terminology, a "willfull act" is generally described as one done intentionally, knowingly and purposely, without justifi- able excuse, as distinguished from an act done carelessly, thoughtlessly, or inadvertently. It implies more than mere non -conformity inattention or thoughtlessness. Usually, there must be some deliberation or premeditation involved before an act can be considered willful. The burden of proof in a criminal case is that the violation must be proved.beyond a reasonable doubt. Whether Mr.. Wilmarth's failure .to. disclose his relationship with Choicecare in his disclosure statements was willful or not would be a question for the trier of fact in a prosecution for violation of the ordinance. The trier of fact would be a municipal judge, or a jury if a jury is requested by the defendant. Mr. Wilmarth has stated that it was not his intention to omit or falsify his disclosure statement, and has submitted his written report of April 20, 1981 as an amended statement. In addition, he notes that the note and deed of trust and deed relating to the transactions were of record with the Clerk and Recorder of Larimer County. These statements would be considered in a determination of the "willfulness" of his fail- ure to disclose. B. Charter. ' W'as disclosure of Mr. Wilmar.th's relationship with Choice - care required under any provision of the Fort Collins City Charter? 187 Article IV, Section 9 of the Fort Collins City Charter , requires that no city officer shall be financially interested directly or indirectly in the purchase from or sale to the city of land, materials, supplies or services. The charter provision provides that any contract entered into in violation of this section with the express or implied knowledge of the person contracting with the city shall render the contract voidable by the City Manager or the Council. As discussed above, Mr. Wilmarth had no direct financial interest in the sale of Choice - care insurance coverage to the City, nor did the City have any choice in whether or not to purchase the Choicecare coverage and whether or not to offer the Choicecare coverage•. The penalty for violation of this provision is that the contracting party in this case, Choicecare, would be in jeopardy of having its contract voided. That result occurred in any event upon Choice- care's insolvency. It doe's not appear that Mr. Wilmarth's relationship with Choicecare constituted a violation of this section. The City had no option -whether or not to deal with Choicecare. Mr. Wilmarth was never involved in any decision to contract for services with Choicecare or in any negotiations of coverage or premiums to be paid by the City. There is no evidence that Choicecare's provision of services to the City would result in financial benefit to Mr. Wilmarth. Article IV, Section 11 of the Charter provides that any , violation of the Charter is a misdemeanor and that any officer convicted of a violation shall be deprived of office and in- eligible for such office for two years after such conviction. C. State Statutes. Was disclosure of Mr. Wilmarth's relationship with Choice - care required by any applicable State statute? There are several State statutes relating to the conduct of public officials. A discussion of the pertinent statutes and their applicability to Par. Wilmarth's relationship with Choice - care follows. The laws contained in Article 8 of Title XV111 of the Colorado Revised Statues of 1973 define (in 18-8-101(3)) "public servant" as any officer or employee of government whether elected or appointed. This definition clearly includes city councilmen. Section 18-8-301(1) defines "benefit" as a gain or advantage to the beneficiary, including any third parties desired to be benefited by the beneficiary. Section 18-8-301(3) defines "pecun- iary benefit" as money, property, commercial interest or any- thing else the primary significance of which is economic gain. Section 18-8-301(4) extends the definition of "public servant" for the purposes of disclosing conflicts of interest to include persons elected, but not yet occupying, a position. Therefore, the State statutes could be applicable to a situation involving a Fort Collins councilmen if all other facts involved fit the requirements of the State laws. i•: Section 18-8-368, C.R.S. 1973, defines the crime of "failure to disclose a conflict of interest." It requires a ' public servant who "exercises any substantial discretionary functions in connection with a government contract, purchase, payment or other pecuniary transaction" to. notify, by actual written notice, the Secretary of State and the governing body of government involved (in this 'case, the City Council) of the existence of any "known potential conflict of interest" in the transaction before that. public servant acts upon the matter. A. "potential conflict of interest" is defined as existing when the public servant is an executive officer of the company involved or owns or controls, directly or indirectly, a substantial interest in any non -governmental entity participating in the transaction." Violation of this Section is a Class II misdemean- or. The duty to disclose under this State law arises only when the public servant is required .to take official action on a matter in which he is interested. In the case of Mr. Wilmarth, the only official action of any sort taken by the Fort Collins City Council concerning Choicecare occurred in December, 1980, when the Council voted to intervene in the Hewlett-Packard lawsuit. (The motion to intervene was later withdrawn by the City.) Mr. Wilmarth did not participate in the discussion of this action and was not present at the vote. From the existing records of other, informal discussions by the City Council of the Choicecare insolvency as it related to the City's employees, it does not appear that a duty to disclose Mr. Wilmarth's interest in Choicecare arose under the State law. Further, the ' disclosure requirement operates only when the public servant has a "substantial" interest in the non -governmental entity parti- cipating in the transaction. It is a matter for debate whether the Wells-Wilmarth relationship with Choicecare constituted a "substantial interest" in Choicecare's operations. n Section 18-8-402, C.R.S. 1973, concerns the misuse- of of- ficial information by a public servant. This law prohibits a public official's use of information gained from his official position, and not of general public knowledge, for personal gain. There is no evidence that Mr. Wilmarth was privy to any inside information due to his public office which would affect his relationship with Choicecare Health Care Services, Inc. The City's relationship with Choicecare predated Mr. Wilmarth's election, as did his own relationship.with the entity. Section 18-8-404, C.R.S 1973, creates the misdemeanor of first degree official misconduct. This offense arises if a public official, with the intent to obtain personal benefit or to maliciously harm another, knowingly violates any statute .or lawfully adopted rule or regulation relating to his office. This could be construed to apply to violation of a city ordinance such as Fort Collins' disclosure ordinance. It requires that the violation of the ordinance be intentional. In 189 the case of the Fort Collins ordinance, which requires that the ' violation of the ordinance be "willful," the application of the State law becomes rather redundant. Similarly, Section 18-8-405 creates the offense of official misconduct in the second degree, which occurs when a public servant "knowingly, arbitrarily and capriciously" violates a statute, rule or regulation governing his behavior. Violation of this statute is classified as a Class I petty offense. D. Conflict of interest. Was a conflict of interest created by Mr. Wilmarth's rela- tionship with Choicecare? A conflict of interest is created when a person in public office has personal interests which may affect his exercise of judgment in his public capacity. The facts as presented by the parties and public record do not reveal any action taken by Mr. Pilmarth in his capacity as council member which could be construed as being influenced by his relationship by Choicecare. The City took no action of any benefit to Mr. Wilmarth in its relationship with Choicecare. Mr. Wilmarth does not appear to have made any attempts to prevent the City's action on behalf of its employees after the Choicecare insolvency. A conflict might ' have existed between his interests and those of the City if a delay in settling the City's claims on behalf of its employees might have benefited the Wells-Wilmarth partnership by insuring that enough assets were present to pay the $30,000. There is, however, no evidence which has come to light of any such delay on the part of the City or of .any actions by Mr. Wilmarth to cause or encourage such a delay. Approval of the settlement between Wells-Wilmarth and the receivership by the presiding judge would indicate that the judge felt it was in -the best .interests of the receivership to approve the settlement. The receivership is set up to marshal the assets of the insolvent company and, to as much as possible, to allow the insolvent company to fulfill its obligations to the persons to whom it offered coverage. II. Municipal Court practice by Fischer and Wilmarth law firm. A. Disclosure. Does Section 8-1 of the Fort Collins City Code require disclosure of Fischer and Wilmarth's practice in 1,1unicipal Court? Subsection 6 of Section 8-113 of the Fort Collins Code requires the disclosure of a list of .businesses which a council person is associated that "do business with or are regulated by" the City of Fort Collins, and the nature of such business or 190 regulation. This subsection does not apply to the practice of ' law in the Municipal Court by members of Mr. Wilmarth's law firm. The usual sense of "doing business" is the City expending funds for services performed on behalf of the City or for goods purchased by the City. When an attorney practices law before the Municipal Court, he is not in the employ of the City but is, in fact, representing persons charged with violations of City Ordinances in opposition to the city. The City of Fort Collins has no jurisdiction over the regulation of the practice of law and therefore, cannot be said to regulate it. In the same sense, practice in the Municipal Court by. members and associates of the firm of Fischer and Wilmarth does not constitute doing business with the City in violation of Article IV, Section 9 of the Charter, which prohibits public officers who are financially interested from contracting with the City for the purchase from or sale to the City of goods or services. B. Does the practice of law in Municipal Court by Fischer and Wilmarth constitute a conflict of interest which must be disclosed under State law? Section 18-8-308, C.R.S., 1973, requires 72 hours actual written notice to the Colorado Secre- tary of State and the City Council of potential conflicts of ' interest in connection with government contracts, purchases, •payments or other pecuniary transactions. By its language, this State law is limited to matters involving the expenditure of public funds for services and would not apply to the practice of law by Mr. Wilmarth's partners or associates in Municipal Court. C. Is the practice of law by members and associates of Fischer and Wilmarth a violation of the Cannon of Ethics of the legal profession? The enforcement .of the ethical limitations on the legal profession in Colorado is the sole province of the Supreme Court of this State. The question of whether the representation of clients in the Municipal Court by Mr. Wilmarth's law partner and an associate constitutes a conflict of interest for Mr. Wilmarth is a matter to be determined by the Supreme Court. by its grievance procedures. It is clear that Mr. Wilmarth himself did not represent any clients before the Municipal Court after his election to the City Council in April, 1979• There has been no testimony that Mr. Wilmarth, his partner Mr. Fischer, or their associate practicing in the Municipal Court have at any time, attempted to invoke the name, power or position of Mr. Wilmarth as a threat or bargaining tool in Municipal Court. The question of whether or not the representation by members of his firm did constitute at least the appearance of impropriety on the part of 1 191 Mr'. Wilmarth is not an issue within the jurisdiction of the City Council, as it has no legal authority underits ordinances to sanction such behavior. Mr. Vlilmarth has stated that in the future, no member of his firm will practice in the Municipal Court of Fort Collins in order to avoid any appearance of impropriety on his part. Respectfully submitted, Kay Norton; 7192 Special C-o-u--rTs—el for the City of Fort Collins 1010 9th Avenue Greeley, Colorado 80631 Telephone: 351-7010 Following her review, Councilman Knezovich stated that it was his feeling that Mr. Kross follow the same course as Mayor Wilmarth and not question ' Mrs. Norton, as both a prosecutor and judge. Assistant Mayor Cassell replied that it was his opinion that Councilman Kross should be allowed to ask questions of Mrs. Norton, inasmuch as Mayor Wilmarth was to be afforded that opportunity later. The questions of voting should be addressed later. Councilman Kross questioned Mrs. Norton's use of the word "income" noting that he felt she was using the word synonomously with "cash" or "profit" which he did not feel was a proper use. Mrs. Norton replied that her feeling was that income is something that could be spent and, since no definition of income exists in the Code, the rule of legal construction is to use words in their ordinary sense. She further stated that in her opinion, the concept of income becomes net income. Mayor Wilmarth noted the areas in which he disagreed with Mrs. Norton's report, especially in the area of tenant/landlord relationships. He asked the Council to vote on whether or not they find a willful violation on his part of any ordinance of the City of Fort Collins relative to disclosure. He further noted that he felt, for the appearance of propriety, that it would be best that he not vote on the issue and that Councilman Kross not vote either, although there was not legal bar from either of them voting. ' 192 ' Councilman Kross stated that he. felt that he had evaluated and documented the situation carefully and that he was not in a conflict of interest situation and therefore would vote, unless Council determined it to be not appropriate. Mayor Wilmarth stated that he then felt himself to be in the same position and asked Council to determine whether it would be appropriate_ to vote. Assistant Mayor Cassell again stated that there was not legal precedent on which to ask either Councilman Kross or Mayor Wilmarth not to vote and asked Councilmembers to give him their feelings on the subject. Council consensus was to allow both Councilman Kross and Mayor Wilmarth to vote, if they so desired. Dr. Karl Carson, 1119 Parkwood Drive, spoke of his concern that the Council work together for the good of the City of Fort Collins. John Straayer, 944 Pioneer, pointed out that potential conflicts of inter- est be taken seriously and deserve considered judgment. After a brief recess, Mayor Wilmarth informed Council of his decision not to vote on the issue. ' Councilman Knezovich made a motion, seconded by Councilman Elliott, that Council finds Mayor Wilmarth did fail to disclose information as required by the City Code, but that there is no evidence that the failure was willful on Mayor Wilmarth's part. Yeas: Councilmembers Cassell, Elliott, Horak, and Knezovich. Ways: Councilmembers Kross and Reeves. THE MOTION CARRIED. Mayor Wilmarth resumed his seat at this time. City Attorney's Report City Attorney Liley reported that she had been meeting with bond counsel to look at airport financing. A report will be brought back on May 19th with regard to the solution of the joint ownership problems at the airport. Bids for the utilities at the airport will need to be awarded May 19th. City Manager's Report City Manager Arnold reminded Council that the retreat would be held May 8-9 in Boulder. 193 Councilmembers' Reports Councilwoman Reeves reported that the airport ad hoc committee meeting would be May 19th at 8:00 a.m. in the C.I.C.. Councilman Kross reported on the PRPA annual meeting on April 30. He added that change orders increasing the Rawhide Power Plant costs ,were approved. Councilman Knezovich reported on the formative meetings of the D.D.A. noting that tax increment financing had been reviewed with bond counsel. Councilman Horak reported on the COG meeting of April 23. Other Business Councilman Horak asked about the status of SB439 dealing with the feasi- bility study for the Grey Mountain reservoir. Public Works Director Roger Krempel replied that since the Senate and the House had passed different versions of the bill, it's going to a joint committee for resolution. I Councilman Horak asked that copies of the City's position be forwarded to the committee. Adjournment The meeting adjourned at 9:40 p.m. ATTEST: City Clerk Mayor 194