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Kearney, Nebraska

July 10, 2007

7:00 p.m.

 

A meeting of the City Council of Kearney, Nebraska, was convened in open and public session at 7:00 p.m. on July 10, 2007, in the Council Chambers at City Hall.  Present were: Stanley A. Clouse, President of the Council; Michaelle Trembly, City Clerk; Council Members Randy Buschkoetter, Don Kearney, Bruce Lear, and Bob Lammers. Absent: None.  Michael Morgan, City Manager; Michael Tye, City Attorney; Amber Brown, Assistant to City Manager; Wendell Wessels, Director of Finance and Administration; Kirk Stocker, Director of Utilities; and Rod Wiederspan, Director of Public Works were also present. Some of the citizens present in the audience included: Jim Andersen, Kirby Andersen, Rhonda Andersen, Mark Andersen, Chris Andersen, Dan Lindstrom, Darlene Pfeiffer, Roger Cox, Laura Demman, Mark Fahlesen, Richard Luth, Kay Lush, Rhoda Brown, Mitch Humphrey, Gerry O’Rourke, Matt Thomas, Greg Balfany, Susan Balfany, Paul Brungardt, Reed Miller, Neal Lewis, Danny Starostka, Paul Wice from KGFW Radio, Mike Konz from Kearney Hub.

 

Notice of the meeting was given in advance thereof by publication in the Kearney Hub, the designated method for giving notice, a copy of the proof of publication being attached to these minutes.  Advance notice of the meeting was also given to the City Council and a copy of their acknowledgment or receipt of such notice is attached to these minutes.  Availability of the Agenda was communicated in the advance notice and in the notice to the Mayor and City Council.  All proceedings hereafter shown were taken while the meeting was open to the attendance of the public.

 

I.    ROUTINE  BUSINESS

 

INVOCATION

 

Reverend Bob Wine from New Life Assembly Church provided the Invocation.

 

PLEDGE OF ALLEGIANCE

 

The Council members led the audience in the Pledge of Allegiance.

 

ANNOUNCEMENT

 

Mayor Clouse announced that in accordance with Section 84-1412 of the Nebraska Revised Statutes, a current copy of the Open Meetings Act is available for review and is posted towards the back of the Council Chambers.

 

ORAL COMMUNICATIONS

 

There was no Oral Communications.

 

II.    UNFINISHED  BUSINESS

 

There was no Unfinished Business.

 

III.    PUBLIC  HEARINGS

 

FINAL PLAT – BALFANY ESTATES; 4809 SUMMIT ROAD

 

Mayor Clouse opened the public hearing on the Application submitted by Mitch Humphrey from Buffalo Surveying (Applicant) for Gregory and Susan Balfany (Owner) for final plat approval for “BALFANY ESTATES” a subdivision in Buffalo County, Nebraska for property described as a tract of land being part of the North Half of Southeast Quarter of Section 29, Township 9 North, Range 16 West of the 6th P.M., containing 24.80 acres, more or less, Buffalo County, Nebraska (4809 Summit Road) and to consider approval of Resolution No. 2007-124.  Planning Commission recommended approval.

 

The applicant is requesting approval for a six-lot rural residential subdivision located at 4809 Summit Road in the Two-Mile Extraterritorial Jurisdiction of the City.  The property is zoned RR-1, Rural Residential District (Rural Standards) and contains approximately 24.80 acres.  Lot 3, Block 1 contains an existing house.  The owner of the house owns the 24.80 acres and is proposing to split the land into five lots plus the lot the house is located upon. 

 

City staff requested an east-west roadway be dedicated on the plat to provide for future connectivity as the area develops.  Proposed 47th Street is shown as a 60-foot wide right-of-way connecting to Summit Road and extended east.  Lot 4, Block 1 and Lot 2, Block 2 have frontage on Summit Road, but Lots 1 and 2 of Block 1 and Lot 1, Block 1 do not have access until 47th Street is constructed.  The applicant expressed concerns regarding future traffic volumes on 47th Street.  The Planning Commission and City Staff explained that there are no guarantees since the amount of traffic is tied to future development activity in the area including pace of development and pattern of development.  However, given the large lot character of the area, the relatively slow pace of development and the city policy of emphasizing arterial streets on section line corridors, staff believes that most of the traffic in the area will use other roadways.  39th Street and 48th Street will be primary traffic movers in the future when they develop. As land is platted, the City is acquiring right-of-way to accommodate future street construction.  Therefore, it seems likely that 47th Street will remain a low volume local street, but there is no absolute guarantee that this will be the case.

 

Maintenance of the rural street was also discussed.  Generally speaking, if gravel roads in the county jurisdiction are built to the standards required by the Buffalo County Highway Department the owners can request maintenance of the road by the county.  Whether or not the county agrees to maintain the road is up to them, the City of Kearney will not maintain roads in the Two Mile Extraterritorial Zoning Jurisdiction unless they become annexed into the City limits.  In this case, the applicant can build the road to county standards but the existing road that connects on either end of Summit Road was not built to county standards.  The applicant has been working with property owners along the substandard road sections to get them upgraded to county standards but has not been successful.

 

The applicant intends to preserve the views to the south and the west from the existing residence by recording building setback lines accordingly as shown on Lots 2 and 4 of Block 1 of the Final Plat.   These setback lines will create “no build” areas as permanent view corridors to be reserved as open space.

 

The Preliminary Plat for this subdivision was approved by Planning Commission on June 15, 2007.  No Public Works Plan or Subdivision Agreement is required.

 

Mitch Humphrey from Buffalo Surveying presented this matter to the Council. There is a house site located on 5.65 acres and the others lots will be scaled down from there to approximately three acres.  The zoning for this site is in place.  The unique feature of this site is that it is located on top of a hill with a great view in all directions.  There are some unique setback lines in the plan based on the lay of the land and to preserve some of the important features on the horizon.

 

The fact that the City initially did not require a street in the east/northeasterly direction at the time the original owners conveyed Summit Road to the public was an issue brought up at the Planning Commission.  The City has found a need for that street, but has come to terms that this road will not become a major bi-way and will basically be kept as a local street.  Mr. Humphrey stated this was the discussion and is what the City projects. 

 

There was no one present in opposition to this hearing.

 

Moved by Kearney seconded by Lammers to close the hearing and approve the Application submitted by Mitch Humphrey from Buffalo Surveying (Applicant) for Gregory and Susan Balfany (Owner) for final plat approval for “BALFANY ESTATES” a subdivision in Buffalo County, Nebraska for property described as a tract of land being part of the North Half of Southeast Quarter of Section 29, Township 9 North, Range 16 West of the 6th P.M., containing 24.80 acres, more or less, Buffalo County, Nebraska (4809 Summit Road) and approve Resolution No. 2007-124. Roll call resulted as follows: Aye: Clouse, Lear, Lammers, Kearney, Buschkoetter. Nay: None. Motion carried.

 

RESOLUTION NO. 2007-124

 

            BE IT RESOLVED BY THE PRESIDENT AND COUNCIL OF THE CITY OF KEARNEY, NEBRASKA, that the plat of “BALFANY ESTATES” a subdivision being that property described as a tract of land being part of the North Half of the Southeast Quarter of Section 29, Township 9 North, Range 16 West of the Sixth Principal Meridian, Buffalo County, Nebraska, more particularly described as follows:  Referring to the southeast corner of the Southeast Quarter of said Section 29 and assuming the east line of said Southeast Quarter as bearing N01°00’49”E and all bearings contained herein are relative thereto; thence N01°00’49”E and on the aforesaid east line a distance of 1611.01 feet to the ACTUAL PLACE OF BEGINNING; thence continuing N01°00’49”E and on the aforedescribed course a distance of 1036.19 feet to the northeast corner of the Southeast Quarter of said Section 29; thence N89°37’49”W and on the north line of said Southeast Quarter a distance of 1379.32 feet; thence S27°40’38”E a distance of 482.47 feet; thence S00°22’12”W a distance of 160.0 feet to a point on the north line of Summit Road; thence N74°00’E and on the aforesaid north line a distance of 44.0 feet to the point of curvature; thence on a 233.0 foot radius curve to the right forming a central angle of 98°45” a distance of 401.58 feet to the point of tangency; thence tangent S07°15’E and continuing on the east line of Summit Road a distance of 263.8 feet; thence leaving said east line of Summit Road, S88°59”11”E a distance of 767.09 feet to the place of beginning, Buffalo County, Nebraska, and in accordance with the terms and requirements of Sections 16-901 through 16-904 inclusive, R.R.S. 1943 (as amended) be accepted and ordered filed and recorded in the Office of the Register of Deeds, Buffalo County, Nebraska.

BE IT FURTHER RESOLVED that the President of the Council be and is hereby authorized and directed to execute the final plat on behalf of the City of Kearney, Nebraska.

            PASSED AND APPROVED THIS 10TH DAY OF JULY, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

DEVELOPMENT PLANS FOR THE VILLAGE AT KEARNEY; 80 LaCROSSE DRIVE

 

Mayor Clouse opened the public hearing on the Application submitted by Matt Thomas for The Village at Kearney II, L.P. (Applicant and Owner) for Planned District Development Plan Approval for the construction of a 4-plex with a workout room building on property zoned “District R-3/PD, Urban Residential Multi-Family District (Medium Density)/Planned Development Overlay District” and described as Lot 27 of Block 3, Kearney Plaza Third Subdivision to the City of Kearney, Buffalo County, Nebraska (80 LaCrosse Drive) and to consider approval of Resolution No. 2007-125. Planning Commission recommended approval.

 

The applicant is requesting approval of Development Plans for a four-plex building to be located at 80 LaCrosse Drive. The property is zoned R-3/PD and will be developed as the final phase of the Villages at Kearney. The multi-family dwellings to the south of this lot comprise the bulk of the apartment complex. This lot will contain the four-plex, a separate building housing a fitness room and a separate outdoor basketball court.  An existing parking lot that serves the apartment complex will be extended to the northeast to add twelve parking stalls. The four-plex and the fitness center will be on one common water and sewer service. The building materials and architectural style will mimic the existing development at Villages of Kearney. A four-foot wide public sidewalk will be installed along LaCrosse Drive. All turf areas will be irrigated by underground sprinklers.  The wall-pack lighting will be sharp cut-off fixtures only.

 

Matt Thomas presented this matter to the Council. He stated this is an extension of the Village at Kearney apartments (37 units) which were completed approximately 3-4 years ago.  They will have landscaping that runs around the perimeter of the building which will be fully irrigated. The parking area will push through in lieu of having another ingress/ egress off into LaCrosse Drive.  One reason this decision was made is because there is a bend in LaCrosse Drive that would not allow good visibility and the other reason was just adding a 4-plex would not warrant another ingress/egress. 

 

There was no one present in opposition to this hearing.

 

Moved by Lammers seconded by Lear to close the hearing and approve the Application submitted by Matt Thomas for The Village at Kearney II, L.P. (Applicant and Owner) for Planned District Development Plan Approval for the construction of a 4-plex with a workout room building on property zoned “District R-3/PD, Urban Residential Multi-Family District (Medium Density)/Planned Development Overlay District” and described as Lot 27 of Block 3, Kearney Plaza Third Subdivision to the City of Kearney, Buffalo County, Nebraska (80 LaCrosse Drive) and approve Resolution No. 2007-125. Roll call resulted as follows: Aye: Clouse, Lammers, Kearney, Buschkoetter, Lear. Nay: None. Motion carried.

 

RESOLUTION NO. 2007-125

 

            WHEREAS, Matt Thomas for The Village at Kearney II, L.P. (Applicant and Owner) has applied for Planned District Development Plan Approval for the construction of a 4-plex with a workout room building on property zoned “District R-3/PD, Urban Residential Multi-Family District (Medium Density)/Planned Development Overlay District” and described as Lot 27 of Block 3, Kearney Plaza Third Subdivision to the City of Kearney, Buffalo County, Nebraska (80 LaCrosse Drive).

            NOW, THEREFORE, BE IT RESOLVED by the President and City Council of the City of Kearney, Nebraska, that the application of Matt Thomas for The Village at Kearney II, L.P. (Applicant and Owner) for Planned District Development Plan Approval for the construction of a 4-plex with a workout room building on property zoned “District R-3/PD, Urban Residential Multi-Family District (Medium Density)/Planned Development Overlay District” and described as Lot 27 of Block 3, Kearney Plaza Third Subdivision to the City of Kearney, Buffalo County, Nebraska (80 LaCrosse Drive) be approved as submitted.

            PASSED AND APPROVED THE 10TH DAY OF JULY, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

CONDITIONAL USE PERMIT TO ANDERSEN WRECKING; 1403 EAST 20TH STREET

 

Mayor Clouse opened the public hearing on the Application submitted by Mitch Humphrey from Buffalo Surveying (Applicant) for Andersen Wrecking Company (Owner) for a Conditional Use Permit for a salvage service and long-term vehicle storage and dismantling operation on property zoned “District M-2, General industrial District” and described as Lots 1 through 14 of Block 18, Lots 1 through 14 of Block 19, Lots 1 through 14 of Block 20, Lots 1 through 17 of Block 21, Lots 1 through 15 of Block 22, Lots 1 through 13 of Block 23, all in Whiteakers Grove Addition to the City of Kearney, Buffalo County, Nebraska together with the vacated 14-foot alley running north and south through Blocks 18 through 23, Whiteakers Grove Addition to the City of Kearney, Buffalo County, Nebraska, 19th Street between the east line of Avenue N and the west line of Avenue Q, the east half of Avenue N between the south line of 20th Street and the north line of CB&Q Railroad line, Avenue O between south line of 20th Street and north line of CB&Q Railroad line, and Avenue P between south line of 20th Street and north line of CB&Q Railroad line (1403 East 20th Street). Planning Commission recommended approval with the following conditions: (1) allow the landscaping plan along the south property line to be more in line with the north property line with two inch caliper deciduous trees at 50 feet on center for the entire length of the south property line; (2) allow the need for landscaping on the east side next to Avenue Q to be delayed until Avenue Q is constructed; and (3) require the Andersen’s to agree not to protest the creation of future public improvement districts that benefit their property.

 

The applicant is requesting a Conditional Use Permit (CUP) to expand salvage services to a recently acquired parcel on the east side of Avenue M directly across from the current operations. You will recall that Andersen’s were before the Planning Commission and City Council recently to amend the Unified Land Development Ordinance as it pertains to bufferyard requirements for salvage service operations. The required buffer set forth in the code was amended from 500 feet to 125 feet.  The next step in the process is consideration of this Conditional Use Permit as a CUP is required for Salvage Services in M-2 zoning.

 

Planning Commission recommended approval of the CUP, but significantly modified the conditions suggested by staff as appropriate to regulate the operation of this heavy industrial land use. As you will see at the conclusion of this memo, staff recommendations are different from the Planning Commission recommendations and the City Council must decide which conditions are appropriate – staff, Planning Commission, or a hybrid created from a mixture of these conditions.  The City Council may also add supplemental conditions if they feel such conditions are necessary to regulate this salvage operation. 

 

There are two separate issues at the forefront with the Andersen Wrecking property.  DRT has met with the applicant several times to discuss these issues: (1) issues related to issuance of the CUP and, (2) issues related to bringing the existing site into conformance with code requirements.  Andersen’s have been working on cleaning up the site but more work needs to be done and City staff has the following concerns in regards to the code violations and the salvage expansion.

 

a)       At the City Council hearing for the buffer reduction there were concerns expressed by the Council members regarding past and ongoing code violations with the existing operation.  These code violations exist currently and are not necessarily tied to the issuance of the CUP, but the Planning Commission also was concerned about these violations.  During discussion at the Planning Commission hearing, City Attorney Mike Tye stated that since the code violations exist today the City could proceed with code enforcement action at any time. Although the applicants have been working on cleaning up the site, the raw materials, especially aluminum irrigation pipe, remain stacked to excessive heights.  The City Attorney has subsequently been working with the Andersens to draft an agreement to reduce the salvage piles to a height no higher than the fence, to achieve this goal by January 1, 2008, and to agree that the future height of any salvage materials remains below the height of the wall.

 

b)       Reduction of daily operational traffic across Avenue M.  Public safety along this arterial roadway is a concern and staff requests a response to City Council as to how this issue will be addressed.  In order to control vehicular traffic and minimize the amount of traffic crossing the arterial street City staff recommends that Andersen Wrecking be limited to one ingress-egress point (curb cut) across Avenue M.  There are two existing access points and staff is recommending closure of one.  Staff thought this issue was resolved at the DRT meetings since the site plan showed one access point.  The plans that were brought to Planning Commission showed two access points.  Andersen Wrecking would like to keep both access points and the Planning Commission was agreeable to this.  They are not recommending closure of one of the access points, but City staff is recommending only one access.

 

c)       Photos of the condition of the existing fence were presented to the Planning Commission.  The fence is in decent repair given the nature of the heavy industrial land use.  There are some smaller perforations and indentations.  Andersen Wrecking has repaired the larger holes by placing sections of new fence panel against the inside of the damaged panels.   City staff is not aware of any fence sections in need of further repair at this time.  Specified ongoing maintenance of the fence is recommended by staff.

 

d)       There shall be no use of the east site until all improvements are in place and complete, inspected and approved by the City.  Said improvements include but may not be limited to fencing, landscaping, irrigation, and stormwater detention.  Staff recommends all improvements be installed within 180 days of the issuance of the CUP.

 

e)       The applicant is requesting a delay for planting the landscaping adjacent to Avenue Q.  Staff recommends denial of this request, but Planning Commission supported it.  Staff will agree to allow a reduced size requirement for the trees adjacent to Avenue Q if the Council wants them installed now.  

 

f)         The applicant is requesting a reduction in the bufferyard landscaping along the south property line.  They feel that the tree spacing is too tight and that the trees will grow together and need to be thinned out in the future.  City staff does not agree that the trees will be too close together if planted based on the spacing requested by the City.  The intent of this area is a bufferyard and the plantings are intended to mature into a dense screen.  Keep in mind that this salvage operation is a heavy industrial use that should be densely screened and that the bufferyard width was reduced from 500 to 125 feet and Andersens are providing only 25 feet of the buffer.   Planning Commission recommended relaxation of the bufferyard requirement and specified one two-inch caliper deciduous canopy tree every 50 feet along the south property line.   This is the city standard for street tree plantings, not screening.

 

g)       The applicant does not believe that Andersen Wrecking should be obligated to pave any abutting roadways or install any other public improvements or relinquish their rights to protest said improvements in the future.  Even though the applicant is not requesting a building permit, the existing salvage operation is expanding to the new site which constitutes development.  It is standard procedure for businesses to pay for public improvements that abut their property that they benefit from.  Andersen Wrecking enjoys the use of Avenue M and South Railroad Street without having paid for the benefit of using these public streets.  With the expansion to the east they will be using 20th Street and Avenue Q on a regular basis.  In staff’s opinion it is not unreasonable to request that future protest right be waived to insure that the neighborhood and Andersen Wrecking can continue to be adequately served by public infrastructure.  Planning Commission agreed and made this condition part of their recommendation.

 

Attorney Dan Lindstrom stated that the Andersen Wrecking Company has been a family owned business at the present location for approximately 50 years. The family was in the auto salvage and recycling business before it was called recycling for about 70 years. The business is run by four generations of the Andersen family and currently employees 25 non-family employees at their current location. They have eight family members actively working in the business. The business includes both auto salvage and other recyclable materials. The business has grown to the point they need more room and to reconfigure the footprint of their operation so they can more efficiently handle materials and salvage vehicles. The property that is the subject of the Conditional Use Permit is a piece of property that is located to the east of the existing operation.  To the left of this, there is an existing operation that is on the east side of Avenue M and another on the west side of Avenue M.  The Conditional Use Permit only pertains to the east storage yard.

 

The proposal is to allow the use of that area for storage of salvage vehicles.  Presently, those are being stored in the area to the west which has become too congested for them to continue doing that. This also requires them to move the cars too often. In order to cut down on that movement, they propose to go to the east of that site. That area will require some infrastructure from a minimal standpoint (fencing, buffering and a detention cell). This property was purchased in the fall of 2006. Although the property is presently zoned M-2, under the City Code this requires them to get a Conditional Use Permit for use as a salvage yard. 

 

The Andersens have done some extensive work with City staff concerning the conditions of the Conditional Use Permit and have reached an agreement concerning the height of the pile of aluminum recycled materials on the west side of Avenue M.  After much discussion with staff, DRT and Planning Commission, this issue seems to have been resolved.

 

Mr. Lindstrom further stated there are other issues where there is disagreement with staff, Planning Commission and Andersen Wrecking. First, the staff is asking for waiver of protest rights to the creation of districts for Avenue Q and 20th Street as worded in the draft resolution including; paving, water and sewer districts. He sees this as a policy issue for the Council.  Iin his experience with the Council, he did not recall this coming in the context of a Conditional Use Permit.  He has seen it in the context of a subdivision agreement where the reason is obvious because it increases the intensity and density of the use.  In this case, it involves only fencing around this property and placing parked cars there.  The intensity of the use is not really changing over what is presently there.  Andersen Wrecking is not saying “no” that they disagree or they would necessarily protest, but would prefer to wait and see what develops.  There is still uncertainty about the advent of the Cherry Avenue by-pass and if it gets constructed how that will impact traffic conditions in the east part of Kearney. 

 

The second issue is the buffer zone planning density. This affects the east side of the proposed site which is the Avenue Q right-of-way. Presently, Avenue Q does not push through to the south.  The City has that right-of-way with a detention cell of sorts in that area. To the east of that is a cornfield which is zoned M-2. Their question is whether to invest a lot of money in plant materials that will buffer against nothing more than a field that the farmer is planting for an indefinite amount of time. Mr. Lindstrom believed it would make more sense for them to do this in phases, so that if Avenue Q goes through or if there is a development on the east side of the road, then the screenings could be planted against the existing fence as a buffer. There are the same kinds of issues on the south side and they also would like to phase them in over time. The Planning Commission took the position that reducing the density of the planting was acceptable, and to phase in that process.

 

The other issue that has been raised by staff was if there should be one or two access points off Avenue M.  There is an access point that is directly across from the west side that goes to the existing yard on the east side.  If you go further to the north end of the building, there is another access which line up directly from each other.   Mr. Lindstrom did not believe that these access points relate at all to the Conditional Use Permit or the Conditional Use Permit property.  In the reconfiguration of the site, the Andersens indicated they would be crossing Avenue M less often than they do now.  The reason is when they bring salvage vehicles in to be recycled; approximately 75 percent of those go directly to the crusher and are sent out and about 25 percent of those vehicles are put into the salvage yard and kept for parts to be used later.  Those parts will be taken back and forth. No equipment bearing full vehicles will be going back and forth until those vehicles are no longer of any use and are sent back to be crushed.  Planning Commission was in agreement with that scenario.

 

Mr. Lindstrom had some concerns about paragraph three of the drafted ordinance because it sets forth the improvements that are to be made by the applicant.  The language is broad because it states that it includes, but may not be limited to, certain things.  The applicants want to make sure that they have some certainty of what the conditions are.  He requested to list what the conditions actually are and not leave it open for conditions that could be brought up later.  In addition, they wanted to request a change to the provision that requires getting all of these things installed within 180 days.  The Andersens do not have a problem with doing this within 180 days, but the question remains, is it possible to do it all in 180 days.  They just got the re-bid from the contractor and found the costs have gone up considerably and they do not know how soon the contractor can do this. 

 

Mr. Lindstrom suggested extending the time limit to a year.  Planning Commission had discussed allowing as much as two years.  Mr. Lindstrom suggested more specific language about what is being protested and what right is being waived in paragraph five of the ordinance.  Those are the issues that he would like addressed by the Council.

 

Paul Brungardt from Brungardt Engineering addressed the intensity issue. He stated that by getting this Conditional Use Permit and this east storage yard, it would reduce the number of times they must cross from yard to yard.  Currently, each time their staff has to get a part for a customer, they have to go across the street (typically on foot) and bring it to the customer in the office.   The crusher that is now located near the office is going to be relocated across the street, so those vehicles will no long have to be transported.  All scrapping operations will now stay on the west side of Avenue M.  He agreed that there will be more cars out there, but they could sit there for several years which do not increase the intensity.  When these vehicles get to a point and are no long needed for parts, they will not be moved one vehicle at a time. To make it a more economical move, they will probably be loaded up with others (5-6 vehicles at a time) on a flatbed and transported back across the street. Another aspect that was not mentioned was after they crush the vehicles, they still have to come back across to the west side for them to be removed from the site either by rail or truck.  Crossing Avenue M is going to be significantly reduced by them reconfiguring their internal operations. They are bordered by an M-2 zone and there is an R-1 zone on South Railroad Street with a designated right-of-way that separates the two properties. 

 

Mr. Lindstom stated he did not believe that the intensity would increase by using this area. City Manager Michael Morgan made the statement that with an increase in the amount of property being used; it would certainly increase the intensity of the use. 

 

Mr. Brungardt stated on the east side (not part of the Conditional Use Permit)  is an eight-foot high privacy fence that will be built encompassing the north, east and south sides of said property.  There will be a buffer zone with a privacy fence along the backside, as well to buffer off the lot that they do not own.  The retention cell will be located in the southeast corner and the natural contours of the ground will provide means to make it drain.  In accordance with the City’s requirements, there will be one tree per 40 linear feet of frontage between the property line and the screening all across 20th Street.  They propose to do that right now in the first phase and wrap that around and extend it down 80 feet along future Avenue Q.  

 

Mr. Brungardt stated they are looking for a buffer zone between a non-residential and a residential use of one tree for every 500 square feet. An evergreen tree, Blue Spruce or Austrian Pine would have a base of 40-50 feet in diameter at maturity.  If they have a 25-foot buffer these trees have to be put in, then they would need to put in a tree every 20 feet.  In his opinion after talking to some local landscapers, they will grow together and that kind of density decreases the lifespan of those trees.  Every 15-20 years, they would be looking at pruning those out. They requested less dense landscaping be required. Planning Commission determined this is actually part of the designated right-of-way so a tree can be placed every 40 feet instead if they wrapped that tree line around the east side. 

 

Mr. Lindstrom stated they are requesting to hold off with this landscaping until it is clearer about what will happen with Avenue Q.  Currently, it is a detention cell that has grown in with a cultivated agricultural field on the east side and it would be very difficult to maintain that landscaping.  When things change, then they would be willing to comply with the landscaping. 

 

The access points are currently in place, curb cuts are installed, and traffic will be reduced significantly across Avenue M by Andersens reconfiguration of their internal layouts in their operations.  They are proposing doing some landscaping along Avenue M per the City’s requirements. 

 

Mayor Clouse inquired about the spacing on the curb cuts.  Mr. Brungardt responded that they are about 60 feet, which far exceeds the City’s minimum for curb cuts on commercial property. 

 

Council member Buschkoetter commented that it will take a few years for those trees to mature.  He gave the scenario that if that cornfield were purchased to put up a housing development (far off in the future, if at all), what would be a reasonable amount of time allowable to get those trees planted. Mr. Brungardt stated if a development plan comes before the Planning Commission and City Council that would trigger Phase II landscaping at that point. If Avenue Q were to be developed, pavement and infrastructures put in place that would trigger landscaping to be put installed.  A development plan or change in zoning would trigger when Phase II landscaping would come into play. 

 

Council member Lear stated that one of the provisions that staff has suggested in addition to fuller landscaping is that the Conditional Use Permit be issued for an indefinite period of time.  Attorney Lindstrom stated that when they start talking about indefinite Conditional Use Permits versus those that have a definite period of time, it brings up issues.  The term Conditional Use Permits run into problems where a company wants to make a substantial investment in a piece of property in our community, but we do not guarantee that the Conditional Use Permit will remain in force for more than two years, at which time it could be taken away. At the Planning Commission hearing, there was discussion about reviewing a Conditional Use Permit on a 2-year basis.  Tthat would be acceptable with them to make the Conditional Use Permit subject to periodic review to determine if it was then time to phase in additional plantings or to discuss possible concerns about violations of the permit.  He suggested putting the Conditional Use Permit together in such a way that it expires in two years by its own terms sets a dangerous precedent. 

 

Council member Lammers asked if they would be agreeable to a condition that when Avenue Q goes through that they would plant the rest of the trees with the same spacing that is required on the north and south.  Mr. Lindstrom stated that is what they proposed. 

 

Council member Kearney stated his concern is approving something like this waiver of protest that is perpetual.   He is unable to look into the future to determine what will take place in the next 30-40 years.  If Andersen Wrecking agrees to this, they will waive all rights to whatever happens forever. Mr. Lindstrom responded that was correct and they would be waiving that right perpetually, which is the concern.  Andersen Wrecking would not necessarily protest a district if the need arises, they are saying they do not want to waive it now without knowing what the future holds.  Paragraph 5 of the Ordinance does not specify whether the waiver of protest applies only to the frontage of the property subject to the Conditional Use Permit or if it encompass the entire frontage of their business operation.  Mr. Lindstrom stated that he assumed that the intent was that the waiver applies only to the property under the Conditional Use Permit, but it is not stated in that way and would suggest that language be clarified regarding that issue.  Mr. Brungardt had done some calculations and determined that Andersens property represents 36 percent of the linear feet.  If there were a paving district on 20th Street, Andersen Wrecking would not be 50 percent and would not be able to protest it by itself anyway. 

 

Director of Public Works Rod Wiederspan stated that as part of the Conditional Use Permit for this piece of property would that portion of 20th Street and that portion of Avenue Q that abuts this piece of property.  If someone requested a district from Avenue H to Avenue Q, then Andersens would have protest rights on the property that they have abutting 20th Street on the other side of Avenue M, but this part would not count as protest rights in that district was his interpretation.  City Clerk stated that all the conditions in the Conditional Use Permit pertain to that legal description only specified in the Conditional Use Permit. City Attorney Michael Tye agreed that could be spelled out in the motion and reiterated in the Ordinance.  All districts would be included in the waiver.  Although there is some sewer and water but there are some portion that do have water and sewer on the property so there is the potential that they could not protest those out either.

 

City Manager asked Mr. Lindstrom to further elaborate on the reasons to change the 180 days to one year as he suggested.  Mr. Lindstrom stated this would be enough time to get all the improvement onto the property so they can begin to use it.  The way the 180 days is written at this time, if Andersens does not get the fence built, the buffer put in and their detention cell built in six months, then the CUP is revoked.  Mr. Morgan commented that it is consistent that the storm water detention has to be in before they can use the site.  The fence would be the other priority even if the site is not in use right away.  Mr. Lindstrom agreed that as soon as everything is in place, then staff would say it is okay to go ahead and use it.  He did not believe it was fair to place a restriction on how long it takes to put it all in. 

 

City Attorney stated that the way the language of the ordinance reads, the Andersens cannot start the conditional use permit until these improvements are completed.  The intent is to find a reasonable timeline that they can comply with but also not giving them an unlimited time to complete so that neighbors are left wondering if that CUP was going to be put into place. 

 

All Council members were in agreement that both accesses should be kept open actually allowing easier crossing access.  City Manager pointed out that in most of the buffering codes that the City has, it does not take into consideration that this will also have a fence.  Usually it is an either or situation, but in this case they will have both, an 8-foot fence and trees.  Planning Commission took that into consideration since the trees would be screening the fence.  The phasing plan in the development plan will be part of the Conditional Use Permit.  The fence will be installed regardless, if Avenue Q develops or development on the east side then the screening with the larger trees will go into effect according to the Planning Commission recommendation.

 

Council member Lear stated the use of this property does not increase the likelihood of the need to build roads.  The problem is that other development can occur around it that will trigger that particular use.  They have some serious stretches of road here that could inhibit their ability to foster that growth and development.  He believed that they need to stick with that waiver of rights of protest so that if and when that area does develop, the City’s options to develop are possible.  In reality, Andersen will use that area for this intended use and nothing will need to develop.  In the case when the use intensifies all around it, would it stop progress as a result of not being able to go forward.

 

Council member Lammers stated the frontage that Andersens has is about 40 percent of the total.  So if one other person beside them does not want it, it could be protested out.  He believed that is a big concern.

 

Council member Buschkoetter stated that he believed that if the City does not go with the waiver at this time, that future Councils might face the same situation there would be a significant area within the community that would not be paved for that reason.  He stated that Andersens is a larger player and he understood that a paved street might not be of that much benefit to them. Mayor Clouse and Council member Kearney were also in agreement with the waiver.

 

There was no one present in opposition to this hearing.

 

Moved by Lear seconded by Buschkoetter to close the hearing and approve the Application submitted by Mitch Humphrey from Buffalo Surveying (Applicant) for Andersen Wrecking Company (Owner) for a Conditional Use Permit for a salvage service and long-term vehicle storage and dismantling operation on property zoned “District M-2, General industrial District” and described as Lots 1 through 14 of Block 18, Lots 1 through 14 of Block 19, Lots 1 through 14 of Block 20, Lots 1 through 17 of Block 21, Lots 1 through 15 of Block 22, Lots 1 through 13 of Block 23, all in Whiteakers Grove Addition to the City of Kearney, Buffalo County, Nebraska together with the vacated 14-foot alley running north and south through Blocks 18 through 23, Whiteakers Grove Addition to the City of Kearney, Buffalo County, Nebraska, 19th Street between the east line of Avenue N and the west line of Avenue Q, the east half of Avenue N between the south line of 20th Street and the north line of CB&Q Railroad line, Avenue O between south line of 20th Street and north line of CB&Q Railroad line, and Avenue P between south line of 20th Street and north line of CB&Q Railroad line (1403 East 20th Street) subject to compliance with the following conditions: (1) Permittee shall continue ongoing maintenance of the fence. (2) Permittee shall not use the east site until all improvements are in place and complete, and inspected and approved by the City. (3) Permittee shall install an 8-foot fence along Avenue Q. Since fencing is the requirement along Avenue Q, with the exception of 80-foot wrap arounds on the north and south corners, landscaping will not be required until such time as Avenue Q is developed. (4) Permittee is allowed to reduce the density requirement of the landscaping on the south side of the property to one 2" caliper, minimum size, deciduous canopy tree for each fifty (50) lineal feet of property frontage, all trees to be irrigated with automatic drip or spray sprinkler system. (5) Permittee waives any future protest right for water, sewer and paving districts for Avenue Q and/or 20th Street. Roll call resulted as follows: Aye: Clouse, Kearney, Buschkoetter, Lear, Lammers. Nay: None. Motion carried.

 

IV.    CONSENT  AGENDA

 

Moved by Buschkoetter seconded by Clouse that Subsections 1 through 16 of Consent Agenda Item IV be approved. Roll call resulted as follows: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried.

 

1.         Approve Minutes of Regular Meeting held June 26, 2007.

 

2.         Approve the following Claims: Aflac $2,670.74 ps; Alamar Uniforms $808.00 ps; Alltel $1,018.56 smcs; Amax Contracting $189.90 co; Amer Red Cross $131.96 smcs; Anderson Brothers $259.33 smcs; Ask Supply $164.46 smcs; Baker & Taylor Books $2,397.93 smcs; Bamford $1,011.54 co; Barney Abstract $75.00 co; BBC Audiobooks $363.26 smcs; Blessing $166,348.23 co; Bluecross Blueshield $17,958.56 smcs; Books in Motion $6.00 smcs; Bosselman $5,198.00 smcs; Bowman,R $25.00 smcs; Boyd's Full Service $31.60 smcs; Brecht,N $20.13 smcs; Brilliance Audio $83.38 smcs; Buffalo Co Reg Deeds $25.50 smcs; Builders Warehouse $161.21 smcs; Carnes,H $564.50 smcs; Cash-Wa $1,875.15 smcs; Center Point Large Print $278.15 smcs; Central Hydraulic Systems $2,126.58 co; CHAD $15.00 ps; Charter $54.99 smcs; City of Glass $35.00 smcs; City of Ky $272,028.02 smcs,ps; Claussen,D $27.35 smcs; College Savings Plan of NE $75.00 ps; Conseco Life Ins $24.00 ps; Copycat Printing $327.18 smcs; Crossroads Ford $8,446.74 smcs; D&M Security $54.00 smcs; Deitloff,D $30.76 smcs; Dept of Treasury $8.02 ps; Deterdings $1,682.14 smcs; DPC Industries $4,415.60 smcs; Dutton-Lainson $61.16 smcs; Eakes $86.95 smcs; Eirich,T $50.00 smcs; Elliott Equipment $280.22 smcs; Envision Ware $2,135.50 co; Exact Eye Care $65.00 smcs; Fedex $120.25 smcs; Fireguard $394.41 smcs; Footjoy $900.44 smcs; Galls $72.94 smcs; General Traffic Controls $8,844.30 smcs; Glather,H $41.12 smcs; Good Samaritan Health $162.00 smcs; Guerra,M $19.00 smcs; Guideposts $16.94 smcs; H&H Distributing $2,834.25 smcs; HD Supply $1,133.07 smcs; Holiday $186.78 smcs; Hometown Leasing $552.54 smcs; ICMA RC $2,778.75 ps; IRS $103,103.84 ps; Johnson,J $6.76 smcs; Johnson,S $50.00 smcs; Junkin,D $145.00 smcs; Kaczanowski,J $4.91 smcs; Ky United Way $837.00 ps; Ky Yamaha $8,943.39 co; Kirkham Michael $360.00 smcs; Koetters,J $54.60 smcs; Laughlin,K $180.00 ps; LARM $220,464.00 smcs; Lewis,N $170.24 smcs; Mail Express $3.80 smcs; Master's $500.00 smcs; Metlife $7,965.84 ps; Metz,B $15.60 smcs; Midlands Contracting $2,200.00 co; Mid-Plains Power $222.50 smcs; Mid-State Engineering $1,535.00 co; Midwest Radar $475.00 smcs; Midwest Storage Solutions $5,194.64 smcs; Milco Environmental $4,500.00 smcs; Miller & Associates $3,310.90 smcs,co; Miller,A $27.52 smcs; Moss & Barnett $244.40 smcs; Munch,J $67.58 smcs; Municipal Emergency $691.36 smcs; Municipal Supply $175.04 smcs; Nathan's Curb Grinding $220.00 co; NDPA $250.00 smcs; NE Child Support $2,614.69 ps; NE Dept of Revenue $44,732.88 ps; NE Golf Assn $3,344.00 smcs; NE Library Commission $330.34 smcs; NEland Distributors $1,989.50 smcs; New World Systems $5,000.00 co; Northwestern Energy $465.23 smcs; Office Depot $75.32 smcs; O'Keefe Elevator $678.31 smcs; OMB Police Supply $305.86 smcs; Overhead Door $60.00 smcs; Paramount Linen $47.10 smcs; Pat's Plumbing $525.00 smcs; Paulsen $61,674.61 co; Payflex $467.50 ps; Pep Co $51.10 smcs; Pfeifer,L $2.88 smcs; Platte Valley Comm $5,923.28 smcs,co; Presto-X $78.00 smcs; Random House $251.20 smcs; Recognition Unlimited $25.95 smcs; Recorded Books $118.34 smcs; Region III $15.00 smcs; Safety-Kleen $289.00 smcs; Sargent Drilling $187,800.48 co; Scamehorn,D $50.00 smcs; Schreiner,J $29.23 smcs; Schultz,J $41.21 smcs; Schwan's $225.90 smcs; See Clear Cleaning $1,800.00 smcs; Setcom Corp $37.10 smcs; S-F Analytical Lab $692.00 smcs; Smith,C $4.41 smcs; Smith,J $28.28 smcs; Solid Waste Agency $47,481.05 smcs; Sporting Edge $1,694.00 smcs; St of NE/DAS Comm $19.25 smcs; St of NE/Dept Economic $125.00 smcs; St of NE/HHS $1,208.00 smcs; Subscription Order Service $27.94 smcs; Sungaard $59,463.92 smcs; Sydow,J $40.00 smcs; Theis,G $68.47 smcs; Thome,B $23.40 smcs; Thompson,L $90.00 smcs; Thomson Gale $103.65 smcs; Titelist $2,642.60 smcs; UPRR $3,000.00 co; Urbanek,G $5.62 smcs; Video Service of America $45.99 smcs; Village Uniform $658.91 smcs; Volkmer,D $27.93 smcs; W.T. Cox Subscriptions $8,777.18 smcs; Wiederspan,R $144.98 smcs; Wilkins Hinrichs Stober $4,500.00 co; Yant Equipment $277.80 smcs; Young,J $8.01 smcs; Zimmerman Printers $308.48 smcs; Payroll Ending 6-23-2007 -- $322,404.30.  The foregoing schedule of claims is published in accordance with Section 19-1102 of the Revised Statutes of Nebraska, and is published at an expense of $_________ to the City of Kearney.

 

3.         Approve the Agreement between the City of Kearney and Buffalo County to replace the sanitary sewer manholes in 11th Street and to construct an additional width of concrete pavement measuring 150 feet long by 12 feet wide with integral curb on each side of the county road section to allow for traffic to transition from the County two-lane road section to the existing City four-lane road section on the east side of the intersection of 11th Street and Avenue M and approve Resolution No. 2007-126.

 

RESOLUTION NO. 2007-126

 

            WHEREAS, Buffalo County, Nebraska is considering a paving improvement project for 11th Street between Avenue M and Cherry Avenue during 2007; and

            WHEREAS, the City of Kearney desires to rehabilitate or replace sanitary sewer manholes prior to the paving of 11th Street and to construct an additional width of concrete pavement measuring 150 feet long by 12 feet wide with integral curb on each side of the county road section to allow for traffic to transition from the County 2-lane road section to the existing City 4-lane road section at the east side of the intersection of 11th Street and Avenue M; and

            WHEREAS, it is in the best interest of Buffalo County and the City of Kearney to rehabilitate or replace the sanitary sewer manholes and to contract the additional width of pavement in conjunction with the paving improvement project for 11th Street from Avenue M to Cherry Avenue.

            NOW, THEREFORE, BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, that an Agreement between the City of Kearney and Buffalo County be and is hereby accepted and approved. The Agreement, marked as Exhibit “A” is attached hereto and made a part hereof by reference.

            BE IT FURTHER RESOLVED that the Mayor be and is hereby authorized and directed to execute the Agreement on behalf of the City of Kearney.

            PASSED AND APPROVED THIS 10TH DAY OF JULY, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

4.         Approve Supplemental Agreement No. 3 between the City of Kearney and Kirkham, Michael & Associates for engineering services in connection with the I-80 Interchange and East Bypass Environmental Assessment and approve Resolution No. 2007-127.

 

RESOLUTION NO. 2007-127

 

            BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, that the President be and is hereby authorized and directed to execute Supplemental Agreement No. 3 between the City of Kearney and Kirkham, Michael & Associates for engineering services with regard to the Cherry Avenue/I-80Interchange and East Kearney Bypass Environmental Assessment. A copy of the said Supplemental Agreement No. 3, marked as Exhibit “A”, is attached hereto and made a part hereof by reference.

            PASSED AND APPROVED THIS 10TH DAY OF JULY, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

5.         Approve T-Hangar B-10 Lease Agreement between the City of Kearney and Falcon Helicopters for storage at the Kearney Regional Airport and approve Resolution No. 2007-128.

 

RESOLUTION NO. 2007-128

 

BE IT RESOLVED by the President and City Council of the City of Kearney, Nebraska, that the President be and is hereby authorized and directed to execute the T-Hangar B-10 Lease Agreement, on behalf of the City of Kearney, Nebraska, with Tim Rhoads, President of Falcon Helicopters, a copy of the Agreement, marked Exhibit “1”, is attached hereto and made a part hereof by reference.

            PASSED AND APPROVED THIS 10TH DAY OF JULY, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

6.         Approve Change Order No. 3 showing a decrease in the amount of $1,147.59 submitted by Hausmann Construction and approved by Wilkins Hinrichs Stober Architects in connection with the Harmon Park Activity Center and approve Resolution No. 2007-129.

 

RESOLUTION NO. 2007-129

 

WHEREAS, Hausmann Construction has performed services in connection with the construction of the Harmon Park Activity Center, and the City's architect, Wilkins Hinrichs Stober Architects, have filed with the City Clerk Change Order No. 3 showing a decrease in the amount of $1,147.59 as shown on Exhibit “A”, attached hereto and made a part hereof by reference:

 

Original Contract Sum

$1,644,000.00

            Change Order No. 1 (1-23-2007)

            Change Order No. 2 (1-23-2007)

            Change Order No. 3 (7-10-2007)

+         300.00

+      5,577.50

-       1,147.59

Contract Sum To Date

$1,648,729.91

 

            NOW, THEREFORE, BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, and hereby find and determine that Change Order No. 3 as shown on Exhibit “A”, be and is hereby accepted and approved.

            PASSED AND APPROVED THIS 10TH DAY OF JULY, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

7.         Approve the License Agreement  between the City of Kearney and Qwest Corporation for the construction of a fiber optic cabling system to provide telecommunications services to The Buckle and approve Resolution No. 2007-130.

 

RESOLUTION NO. 2007-130

 

BE IT RESOLVED by the President and City Council of the City of Kearney, Nebraska, that the City Manager be and is hereby authorized and directed to execute the License Agreement, on behalf of the City of Kearney, Nebraska, with Qwest Corporation, a copy of the Agreement, marked Exhibit “1”, is attached hereto and made a part hereof by reference.

            PASSED AND APPROVED THIS 10TH DAY OF JULY, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

8.         Approve the Certificate of Substantial Completion submitted by Central Contracting and approved by Wilkins Hinrichs Stober Architects for the Dryden Park Restroom/Concession Building and approve Resolution No. 2007-131.

 

RESOLUTION NO. 2007-131

 

WHEREAS, Central Contracting, Inc. of Kearney, Nebraska has performed services in connection with the construction of the Dryden Park Restroom/Concession Building and the City's engineer, Wilkins Hinrichs Stober Architects, have filed with the City Clerk the Certificate of Substantial Completion that work is completed as of June 28, 2007, as shown by Exhibit “A” attached hereto and made a part hereof by reference

 

Original Contract Sum

$114,980.00

            No Change Orders

               .00

Contract Sum To Date

114,980.00

Gross Amount Due

114,980.00

Retainage

                .00

Total Amount of Project

$114,980.00

 

            NOW, THEREFORE, BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, and hereby find and determine that the Certificate of Substantial Completion as shown on Exhibit “A” be and is hereby accepted and approved.

            PASSED AND APPROVED THIS 10TH DAY OF JULY, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

9.         Approve the Revised Plans and Specifications for the tennis courts located at Harvey Park and set the bid opening date for July 31, 2007 at 2:00 p.m.

 

10.        Approve the request submitted by the Downtown Improvement Board to occupy the sidewalks in the downtown area on July 26, 27, 28 from 8:00 a.m. to 8:00 p.m.; to block off Central Avenue from Railroad Street to 24th Street, excluding the intersections, on July 26 and 27, 2007 from 8:00 a.m. to 8:00 p.m. for Sidewalks Sales; and to close the parking lot located north of MONA on July 28, 2007 from 8:00 a.m. to 8:00 p.m. for the Chalk Art competition.

 

11.        Approve Application and Certificate for Payment No. 1 in the amount of $24,146.78 submitted by Concrete Workers, Inc. and approved by Miller & Associates in connection with the 2006 Part IV Improvements (Phase II) for the construction of sidewalks where it currently does not exist as follows: 11th Street from 1st Avenue to Avenue A, 13th Street from Central Avenue to Avenue I, 14th Street from 2nd Avenue to Avenue D, 15th Street from Avenue B to Avenue I, Avenue D from 13th Street to 16th Street, Avenue F from 13th Street to 14th Street, Avenue G from 13th Street to 14th Street and approve Resolution No. 2007-132.

 

RESOLUTION NO. 2007-132

 

WHEREAS, Concrete Workers, Inc. of Kearney, Nebraska has performed services in connection with the 2006 Part IV Improvements (Phase II) for the construction of sidewalks where it currently does not exist as follows: 11th Street from 1st Avenue to Avenue A, 13th Street from Central Avenue to Avenue I, 14th Street from 2nd Avenue to Avenue D, 15th Street from Avenue B to Avenue I, Avenue D from 13th Street to 16th Street, Avenue F from 13th Street to 14th Street, Avenue G from 13th Street to 14th Street, and the City's engineer, Miller & Associates, have filed with the City Clerk Application and Certificate for Payment No. 1 in the amount of $24,146.78 as shown on Exhibit “A” attached hereto and made a part hereof by reference and as follows:

 

Original Contract Sum

$156,640.50

            Change Order – None

               .00

Contract Sum To Date

156,640.50

Gross Amount Due

26,829.75

Retainage

2,682.97

Amount Due to Date

24,146.78

Less Previous Certificates for Payment

               .00

Current Payment Due

$  24,146.78

 

            NOW, THEREFORE, BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, and hereby find and determine that Application and Certificate for Payment No. 1, as shown on Exhibit “A”, be and is hereby accepted and approved.

            PASSED AND APPROVED THIS 10TH DAY OF JULY, 2006.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

12.        Approve the application submitted by NIGHT LIFE CONCEPTS, INC., dba “Cunningham’s Journal” in connection with their Class CK-59311 catering liquor license to dispense beer, wine and distilled spirits in the Exposition Building, in the Arena and in a designated fenced beer garden west of the Arena located at the Buffalo County Fairgrounds, 3807 Avenue N, on August 3, 4, and 6, 2007 from 8:00 a.m. until 1:00 a.m. and on August 5, 2007 (Sunday) from 12:00 noon until 12:00 midnight in connection with the Buffalo County Fair.

 

13.        Approve the Non-Owned Corporate Hangar Lease (T-922A) between the City of Kearney and The Buckle for the storage of aircraft or aircraft parts, repair, maintenance and service of aircraft belonging to, leased to or under the control of The Buckle at the Kearney Regional Airport and approve Resolution No. 2007-133.

 

RESOLUTION NO. 2007-133

 

BE IT RESOLVED by the President and City Council of the City of Kearney, Nebraska, that the President be and is hereby authorized and directed to execute the Non-Owned Corporate Hangar Lease for T-922A on behalf of the City of Kearney, Nebraska, with The Buckle, a copy of the Agreement, marked Exhibit “1”, is attached hereto and made a part hereof by reference.

            PASSED AND APPROVED THIS 10TH DAY OF JULY, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

14.        Approve the Lease Agreement between the City of Kearney and Mark Pullman for the repairing and maintaining his personal vehicles in Rental Garage Area, Annex A, at the Kearney Regional Airport and approve Resolution No. 2007-134.

 

RESOLUTION NO. 2007-134

 

BE IT RESOLVED by the President and City Council of the City of Kearney, Nebraska, that the President be and is hereby authorized and directed to execute the Lease Agreement for the Rental Garage Area, Annex A, at the Kearney Regional Airport on behalf of the City of Kearney, Nebraska, with Mark Pullman, a copy of the Agreement, marked Exhibit “1”, is attached hereto and made a part hereof by reference.

            PASSED AND APPROVED THIS 10TH DAY OF JULY, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

15.        Amend Resolution No. 2007-81 to authorize the City Clerk to replace the first and second pages of the Subdivision Agreement correcting the legal description.

 

RESOLUTION NO. 2007-81A

 

            WHEREAS, Resolution No. 2007-81 was passed and approved on the 8th day of May, 2007 by the Kearney City Council which approved the plat of “Jean Michel of Chateau Marteau” an addition to the City of Kearney, Buffalo County, Nebraska for a tract of land being Lot 2 (now vacated), Block One, and part of 10th Street (now vacated), a street in the City of Kearney, Buffalo County, Nebraska, located in Hammer-McCarty Addition, an addition to the City of Kearney, Buffalo County, Nebraska and a tract of land being part of the West Half of the Northwest Quarter of the Northeast Quarter all located in Section 11, Township 8 North, Range 16 West of the 6th P.M., Buffalo County, Nebraska, all more particularly described as follows: Referring to the northwest corner of the Northeast Quarter of Section 11 and assuming the west line of the Northeast Quarter of Section 11 as bearing S01°24'09"W and all bearings contained herein are relative thereto; thence S01°24'09"W and on the west line of the Northeast Quarter of said Section 11 a distance of 20.0 feet to the northwest corner of Lot I, Block Two, Hammer-McCarty Addition, an addition to the City of Kearney, Buffalo County, Nebraska; thence continuing S01°24'09"W and on the west line of the Northeast Quarter of said Section 11 and on the west line of said Block Two, Hammer-McCarty Addition a distance of 396.76 feet; thence leaving the west line of the Northeast Quarter of said Section 11, S89°32'58"E and continuing on the west line of said Block Two, Hammer-McCarty Addition a distance of 16.70 feet; thence S00°32'18"W and continuing on the west line of said Block Two, Hammer-McCarty Addition a distance of 97.80 feet to the ACTUAL PLACE OF BEGINNING, said point also being the southwest corner of Lot 6 of said Block Two, Hammer-McCarty Addition; thence leaving the west line of said Block Two, Hammer-McCarty Addition S00°32'18"W a distance of 219.00 feet; thence S88°23'23"E a distance of 136.82 feet; thence S79°35'51"E a distance of 66.00 feet; thence N10°24'09"E a distance of 15.96 feet to a point of curvature; thence on a 533.0 foot radius curve to the left forming a central angle of 02°45'48" an arc distance of 25.71 feet; thence leaving said curve, nontangent N83°48'18"E a distance of 75.58 feet; thence N78°53'05"E a distance of 119.60 feet; thence N86°24'46"E a distance of 201.42 feet to the southwest corner of Lot 9, Block Two, Centennial Subdivision, a subdivision to the City of Kearney, Buffalo County, Nebraska; thence N01°53'05"E and on the west line of said Lot 9, Block Two, Centennial Subdivision, a distance of 133.0 feet to the northwest corner of said Lot 9, Block Two, Centennial Subdivision, said point also being the southeast corner of 10th Street as dedicated and shown on the plat of said Hammer-McCarty Addition; thence leaving the west line of said Centennial Subdivision, N88°23'23"W and on the south line of said 10th Street a distance of 342.68 feet to a point on a nontangent 220.0 foot radius curve, concave northwesterly; thence northeasterly and leaving the south line of said 10th Street on said nontangent curve forming a central angle of 18°07'05" an arc distance of 69.57 feet to a point of tangency; said point being N82°33'05"E, a chord distance of 69.28 feet from the previously described point; thence tangent N73°29'32" E a distance of 72.34 feet to a point on the east line of said Lot 2, Block One, Hammer-McCarty Addition (if extended southerly); thence N01°2S'16"E and on the east line of said Lot 1, Block One, Hammer-McCarty Addition, (if extended southerly) a distance of 358.31 feet to the southeast corner of Maurer Addition, an addition to the City of Kearney, Buffalo County, Nebraska; thence continuing on the easterly line of said Lot 1, Block One, Hammer-McCarty Addition, and on the south line of said Lot 2, Maurer Addition, N88°02'39"W a distance of 50.00 feet to the southeast corner of said Lot 2, Maurer Addition; thence continuing on the east line of said Lot 2, Block One, Hammer-McCarty Addition, N01°25'16"E and on the west line of said Lot 2, Maurer Addition, a distance of 100.00 feet to the northeast corner of said Lot 2, Block One, Hammer-McCarty Addition, said point also being the northwest corner of said Lot 2, Maurer Addition; thence leaving the east line of said Lot 2, Block One, Hammer-McCarty Addition, N88°02'39"W and on the north line of said Lot 2, Block One, Hammer-McCarty Addition, a distance of 174.43 feet to the northwest corner of said Lot 2, Block One, Hammer-McCarty Addition; thence leaving the north line of said Lot 2, Block One, Hammer-McCarty Addition, S01°24'09"W and on the west line of said Lot 2, Block One, Hammer-McCarty Addition a distance of 80.56 feet to a point of curvature; thence on a 467.0 foot radius curve to the left forming a central angle of 10°50'48" and continuing on the west line of said Lot 2, Block One, Hammer-McCarty Addition an arc distance of 88.41 feet to a point of tangency; thence tangent S09°26'39"E and continuing on the west line of said Lot 2, Block One, Hammer-McCarty Addition a distance of 116.43 feet to a point of curvature; thence on a 533.0 foot radius curve to the right forming a central angle of 10°50'48" and continuing on the west line of said Lot 2, Block One, Hammer-McCarty Addition, an arc distance of 100.9 feet to a point of tangency; thence tangent S01°24'09"W and on the west line of said Lot 2, Block One, Hammer-McCarty Addition (if extended southerly) a distance of 110.12 feet to a point on the south line of said part of 10th Street (now vacated), said point also being on the south line of said Hammer-McCarty Addition; thence leaving the west line of said Lot 2, Block One, Hammer-McCarty Addition (if extended southerly), N88°23'23"W and on the south line of said 10th Street and said Hammer-McCarty Addition, a distance of 214.37 feet to the place of beginning, containing 4.61 acres, more or less, all in Buffalo County, Nebraska and in accordance with the provisions and requirements of Section 19-916 of the Nebraska Revised Statutes, accepted and ordered filed and recorded in the Office of the Register of Deeds of Buffalo County, Nebraska said addition is hereby included within the corporate limits of said City and shall be and become a part of said City for all purposes whatsoever, and the inhabits of such addition shall be entitled to all the rights and privileges and shall be subject to all laws, ordinances, rules and regulations of said City; and

            WHEREAS, Resolution No. 2007-81 authorized and directed the President of the Council to execute the Subdivision Agreement for “Jean Michel of Chateau Marteau” on behalf of the City of Kearney, Nebraska; and further ordered that the said Subdivision Agreement shall be filed with the final plat with the Buffalo County Register of Deeds; and

            WHEREAS, the Register of Deeds found an error in the legal description on the first page of the Subdivision Agreement and that it could not be recorded.

            NOW, THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND COUNCIL OF THE CITY OF KEARNEY, NEBRASKA, that Resolution No. 2007-81 be amended by authorizing and directing the City Clerk to replace the first and second pages of the Subdivision Agreement and that the remainder of the Subdivision Agreement remain as previously approved.

            BE IT FURTHER RESOLVED that the remaining provisions of Resolution No. 2007-81 are in effect as approved on May 8, 2007.

            PASSED AND APPROVED THIS 10TH DAY OF JULY, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

16.        Accept the report from the City Clerk on the sufficiency of objection/protest filed in connection with Ordinance No. 7357 creating Paving Improvement District No. 2007-918 for Central Avenue from Railroad Street to 18th Street.

 

V.    CONSENT  AGENDA  ORDINANCES

 

ORDINANCE NO. 7359 – REPEAL ORDINANCE NO. 7349 AND RE-VACATE PORTION OF HAMMER-McCARTY ADDITION

 

On May 8, 2007 the City Council approved the development of Jean Michel of Chateau Marteau. Part of the process included the vacation of Lot 2, Block 1 and part of 10th Street located in Hammer-McCarty Addition must be vacated and combined with unplatted land to create the new subdivision, along with the approval of the Subdivision Agreement. When the documents were submitted to the Register of Deeds to file, it was determined that the ordinance vacating the land and the Subdivision Agreement did not have the correct legal description.

 

In reviewing the matter, it was discovered that the legal description that was provided to the City by the applicant was not correct. Therefore, the ordinance vacating the property will need to be repealed and re-vacated with the correct description.  Ordinance No. 7359 has been prepared repealing Ordinance No. 7349 and re-vacating the property with the correct legal description.  Also, the first and second pages of the Subdivision Agreement need to be replaced with the correct description.  Therefore, Resolution No. 2007-81A has been prepared which amends Resolution No. 2007-81 authorizing the City Clerk to replace the first and second pages of the Subdivision Agreement to reflect the correct legal description.

 

Council Member Clouse introduced Ordinance No. 7359, being Subsection 1 of Agenda Item V to repeal Ordinance No. 7349 to correct the legal description and to vacate Lot 2 of Block 1 and part of 10th Street located in Hammer-McCarty Addition, an addition to the City of Kearney, Buffalo County, Nebraska (south of 11th Street and north of 4th Street), and moved that the statutory rules requiring ordinances to be read by title on three different days be suspended and said ordinances be considered for passage on the same day upon reading by number only, and then placed on final passage and that the City Clerk be permitted to call out the number of the ordinance on its first reading and then upon its final passage.  Council Member Kearney seconded the motion to suspend the rules. President of the Council asked for discussion or if anyone in the audience was interested in the ordinance. No one responded. Clerk called the roll which resulted as follows: Aye: Clouse, Lammers, Kearney, Buschkoetter, Lear. Nay: None. Motion to suspend the rules having been concurred in by three-fourths of the City Council, said motion was declared passed and adopted. City Clerk read Ordinance No. 7359 by number. Roll call of those in favor of the passage of said ordinance on the first reading resulted as follows: Aye: Clouse, Lammers, Kearney, Buschkoetter, Lear. Nay: None. Motion carried. Ordinance was read by number.

 

Moved by Kearney seconded by Lammers that Ordinance No. 7359 be passed, approved and published as required by law. Roll call resulted as follows:  Aye: Clouse, Kearney, Buschkoetter, Lear, Lammers. Nay: None. Motion carried.

 

By reason of the roll call voted on the first reading and final passage of the ordinance, Ordinance No. 7359 is declared to be lawfully passed and adopted upon publication in pamphlet form and made available to the public at the Office of the City Clerk, the Kearney Police Department and the Kearney Public Library.

 

ORDINANCE NO. 7360 – REPEAL ORDINANCE NO. 7357 – PAVING IMPROVEMENT  DISTRICT NO. 2007-918

 

the Old Towne area is in need of infrastructure improvements. The sidewalks and high curbs make the area difficult to navigate and minor drainage problems pose challenges for patrons and business owners alike.

 

In 2003, the Old Towne Association requested the City of Kearney explore options to address the infrastructure issues. Cost estimates were prepared for two separate options. Option 1 included replacing the sidewalk, completing a minimal amount of paving work, and minor storm sewer work. Option 2 included additional water and sewer replacement and lighting.  Payment for this project would have been primarily the responsibility of property owners with the possibility of some assistance from the CRA. However, creation of the district was never requested by the Old Towne property owners for either option. 

 

After the capital improvement projects sales tax funding became a reality, then Mayor Galen Hadley asked that City staff again investigate the possibility of completing a project in the area, this time to be subsidized with sales tax funds.  On May 15, 2006, the City of Kearney hosted a meeting with the Old Towne Association.  A total of 12 property owners/tenants were in attendance in addition to the Mayor, the City Manager, other City staff, and the engineer from Miller & Associates.  A basic project estimated at $575,000 was proposed.  The project, which focused on the blocks of 19th Street and 18th Street, would replace the sidewalks, convert the parking stalls in Central Avenue from brick to pavement, and complete basic stormwater/sewer and lighting/electrical work. 

 

After receiving positive feedback at that meeting, staff made a request to the Kearney Community Redevelopment Authority (CRA) in the amount of $60,000 to help offset the total project cost. City Council also committed $240,000 in the 2007-2008 capital improvement projects sales tax budget to provide additional relief to Old Towne property owners.  City staff requested the creation of the district on behalf of the Old Towne Association at the June 12, 2007 Council meeting. 

 

However, on June 21, 2007, Rod Wiederspan met with the Old Towne Association and heard several complaints about the cost of the project, which was estimated to cost approximately $250 per front foot.  To address Old Towne Association’s concerns, the CRA was requested to consider committing an additional $35,000 to pay for the remainder of the project cost.  Rod and Amber met with the group again on June 27 and offered a not-to-exceed project price of$200 per front foot.    

 

            Estimated Total Project Cost                                         $575,000.00

            City – Special Sales Tax                                               $240,000.00

            CRA Funding                                                               $  60,000.00

            Assessment – Property Owners                                     $275,000.00

 

As the Council can see, the City and the CRA have worked diligently to provide the Old Towne property owners with a project the entire community could be proud of at a reasonable and fair price with significant cost savings for property owners. 

 

Administration received written objections from some of the property owners within the proposed district. It appears there is approximately 1,201.95 feet of assessable footage with 634.55 feet in objection to the creation of the district which represents 54.24 percent.  Section 16-620 of the Nebraska Revised Statutes states “If the owners of the record title representing more than fifty percent of the front footage of the property abutting or adjoining and continuous or extended street, cul-de-sac, or alley of the district, or portion thereof which is closed at one end, and who were such owners at the time the ordinance creating the district was published, shall file with the city clerk, within twenty days from the first publication of said notice, written objections to the improvements of a district, said work shall not be done in said district under said ordinance, but said ordinance shall be repealed.”  Since the objection for the district does represent more that fifty percent, the district will need to be repealed. Attached is an ordinance repealing the district.

 

Council Member Clouse introduced Ordinance No. 7360, being Subsection 2 of Agenda Item V to repeal Ordinance No. 7357 creating Paving Improvement District No. 2007-918 for Central Avenue from Railroad Street to 18th Street, and moved that the statutory rules requiring ordinances to be read by title on three different days be suspended and said ordinances be considered for passage on the same day upon reading by number only, and then placed on final passage and that the City Clerk be permitted to call out the number of the ordinance on its first reading and then upon its final passage.  Council Member Kearney seconded the motion to suspend the rules. President of the Council asked for discussion or if anyone in the audience was interested in the ordinance. No one responded. Clerk called the roll which resulted as follows: Aye: Clouse, Lammers, Kearney, Buschkoetter, Lear. Nay: None. Motion to suspend the rules having been concurred in by three-fourths of the City Council, said motion was declared passed and adopted. City Clerk read Ordinance No. 7360 by number. Roll call of those in favor of the passage of said ordinance on the first reading resulted as follows: Aye: Clouse, Lammers, Kearney, Buschkoetter, Lear. Nay: None. Motion carried. Ordinance was read by number.

 

Moved by Kearney seconded by Lammers that Ordinance No. 7360 be passed, approved and published as required by law. Roll call resulted as follows:  Aye: Clouse, Kearney, Buschkoetter, Lear, Lammers. Nay: None. Motion carried.

 

By reason of the roll call voted on the first reading and final passage of the ordinance, Ordinance No. 7360 is declared to be lawfully passed and adopted upon publication in pamphlet form and made available to the public at the Office of the City Clerk, the Kearney Police Department and the Kearney Public Library.

 

ORDINANCE NO. 7361 – SELL VACATED EAST 17 FEET OF AVENUE E

 

Back in 2000 the City received a request from a property owner to purchase some vacated right-of-way.  The City of Kearney sold to that abutting property owner the vacated east 17 feet of Avenue E as it abuts Lot 1 except the south 30 feet of Westerbuhr Addition.  The property has since changed ownership and in order to clear up title on the parcel, the City needs to sell the vacated east 17 feet as it abuts the south 30 feet of Lot 1, Westerbuhr Addition.  Ordinance No. 7361 will rectify any issues with regard to this matter.

 

Council Member Clouse introduced Ordinance No. 7361, being Subsection 3 of Agenda Item V to sell the vacated east 17 feet of Avenue E as it abuts the south 30 feet of Lot 1, Westerbuhr Addition, an addition to the City of Kearney, Buffalo County, Nebraska, and moved that the statutory rules requiring ordinances to be read by title on three different days be suspended and said ordinances be considered for passage on the same day upon reading by number only, and then placed on final passage and that the City Clerk be permitted to call out the number of the ordinance on its first reading and then upon its final passage.  Council Member Kearney seconded the motion to suspend the rules. President of the Council asked for discussion or if anyone in the audience was interested in the ordinance. No one responded. Clerk called the roll which resulted as follows: Aye: Clouse, Lammers, Kearney, Buschkoetter, Lear. Nay: None. Motion to suspend the rules having been concurred in by three-fourths of the City Council, said motion was declared passed and adopted. City Clerk read Ordinance No. 7361 by number. Roll call of those in favor of the passage of said ordinance on the first reading resulted as follows: Aye: Clouse, Lammers, Kearney, Buschkoetter, Lear. Nay: None. Motion carried. Ordinance was read by number.

 

Moved by Kearney seconded by Lammers that Ordinance No. 7361 be passed, approved and published as required by law. Roll call resulted as follows:  Aye: Clouse, Kearney, Buschkoetter, Lear, Lammers. Nay: None. Motion carried.

 

By reason of the roll call voted on the first reading and final passage of the ordinance, Ordinance No. 7361 is declared to be lawfully passed and adopted upon publication in pamphlet form and made available to the public at the Office of the City Clerk, the Kearney Police Department and the Kearney Public Library.

 

VI.    REGULAR  AGENDA

 

ORDINANCE NO. 7362 – GRANT CONDITIONAL USE PERMIT TO ANDERSEN WRECKING; 1403 EAST 20TH STREET (PERTAINS TO PUBLIC HEARING 3)

 

Council Member Lammers introduced Ordinance No. 7362, being Subsection 1 of Agenda Item VI to grant a Conditional Use Permit to Andersen Wrecking Company for a salvage service and long-term vehicle storage and dismantling operation on property zoned “District M-2, General industrial District” and described as Lots 1 through 14 of Block 18, Lots 1 through 14 of Block 19, Lots 1 through 14 of Block 20, Lots 1 through 17 of Block 21, Lots 1 through 15 of Block 22, Lots 1 through 13 of Block 23, all in Whiteakers Grove Addition to the City of Kearney, Buffalo County, Nebraska together with the vacated 14-foot alley running north and south through Blocks 18 through 23, Whiteakers Grove Addition to the City of Kearney, Buffalo County, Nebraska, 19th Street between the east line of Avenue N and the west line of Avenue Q, the east half of Avenue N between the south line of 20th Street and the north line of CB&Q Railroad line, Avenue O between south line of 20th Street and north line of CB&Q Railroad line, and Avenue P between south line of 20th Street and north line of CB&Q Railroad line (1403 East 20th Street) subject to compliance with the following conditions: (1) Permittee shall continue ongoing maintenance of the fence. (2) Permittee shall not use the east site until all improvements are in place and complete, and inspected and approved by the City. (3) Permittee shall install an 8-foot fence along Avenue Q. Since fencing is the requirement along Avenue Q, with the exception of 80-foot wrap arounds on the north and south corners, landscaping will not be required until such time as Avenue Q is developed. (4) Permittee is allowed to reduce the density requirement of the landscaping on the south side of the property to one 2" caliper, minimum size, deciduous canopy tree for each fifty (50) lineal feet of property frontage, all trees to be irrigated with automatic drip or spray sprinkler system. (5) Permittee waives any future protest right for water, sewer and paving districts for Avenue Q and/or 20th Street; and moved that the statutory rules requiring ordinances to be read by title on three different days be suspended and said ordinances be considered for passage on the same day upon reading by number only, and then placed on final passage and that the City Clerk be permitted to call out the number of the ordinance on its first reading and then upon its final passage.  Council Member Lear seconded the motion to suspend the rules. President of the Council asked for discussion or if anyone in the audience was interested in the ordinance. No one responded. Clerk called the roll which resulted as follows: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion to suspend the rules having been concurred in by three-fourths of the City Council, said motion was declared passed and adopted. City Clerk read Ordinance No. 7362 by number. Roll call of those in favor of the passage of said ordinance on the first reading resulted as follows: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried. Ordinance was read by number.

 

Moved by Lear seconded by Bushkoetter that Ordinance No. 7362 be passed, approved and published as required by law. Roll call resulted as follows:  Aye: Clouse, Lear, Lammers, Kearney, Buschkoetter. Nay: None. Motion carried.

 

By reason of the roll call voted on the first reading and final passage of the ordinance, Ordinance No. 7362 is declared to be lawfully passed and adopted upon publication in pamphlet form and made available to the public at the Office of the City Clerk, the Kearney Police Department and the Kearney Public Library.

 

AWARD BID FOR NORTHWEST WELL FIELD PHASE II (WATER TRANSMISSION MAIN) AND WATER CONNECTION DISTRICT NO. 2007-1

 

Mayor Clouse opened for discussion the bids received for the Northwest Well Field Phase II (Water Transmission Main) and Water Connection District No. 2007-1 for 56th Street from 30th Avenue west a distance of 4,410.1 feet and to consider approval of Resolution No. 2007-135 awarding the bid to Starostka Group, Inc. of Grand Island, Nebraska.

 

At the September 12, 2006 City Council Meeting the Council awarded the bid for the Northwest Well Field Phase I, Municipal Water Wells, to Sargent Drilling of Broken Bow, Nebraska.  At the May 22, 2007 Council meeting the Council approved the plans and specifications for the Northwest Well Field, Phase II, Water Transmission Main and set the bid opening date for June 26, 2007.

 

On June 26, 2007 the City received sealed bids for the Phase II, Water Transmission Main.  Four bids were received.  The City’s engineer has prepared a bid tabulation sheet and a letter recommending award for your review.  Starostka Group of Grand Island, NE submitted the low bid in the amount of $4,098,297.20. The low bid is $1,072,648.80 below the engineer’s estimate of $5,170,946 and $80,702.80 below the project budget prepared for the State Revolving Loan Fund Loan in January 2006.

 

Bids were very competitive due to the size of the project and a number of contractors needing work. The engineer’s estimate reflected their concerns with the increase in pipe and fuel prices during the past year.

 

A third project, Phase III, will be required to fully utilize the Northwest Well Field.  The Phase III work will include a Water Conditioning Building, to be located at the southwest corner of the landfill property, and an upgrade of the existing Supervisory Control and Data Acquisition (SCADA) control system.

 

Reed Miller from Miller & Associates was present to answer any questions.

 

Moved by Buschkoetter seconded by Clouse to approve the bids received for the Northwest Well Field Phase II (Water Transmission Main) and Water Connection District No. 2007-1 for 56th Street from 30th Avenue west a distance of 4,410.1 feet and approve Resolution No. 2007-135 awarding the bid to Starostka Group, Inc. of Grand Island, Nebraska. Roll call resulted as follows: Aye: Clouse, Lammers, Kearney, Buschkoetter, Lear. Nay: None. Motion carried.

 

RESOLUTION NO. 2007-135

 

            WHEREAS, Miller & Associates and the City of Kearney have reviewed the sealed bids which were opened on June 26, 2007 at 2:00 p.m. for the construction of the Northwest Well Field Phase II (Water Transmission Main) and Water Connection District No. 2007-1 for 56th Street from 30th Avenue west a distance of 4,410.1 feet; and

            WHEREAS, the Engineer’s Opinion of Probable Construction Cost for the project was $5,170,946.00; and

WHEREAS, the said engineers have recommended the bid offered by Starostka Group Unlimited, Inc. of Grand Island, Nebraska be accepted as the lowest responsible bid.  

            NOW, THEREFORE, BE IT RESOLVED by the President and City Council of the City of Kearney, Nebraska that the Engineers recommendation is hereby accepted and approved, that Starostka Group Unlimited, Inc. of Grand Island, Nebraska be and is the lowest responsible bidder for the construction of the Northwest Well Field Phase II (Water Transmission Main) and Water Connection District No. 2007-1 for 56th Street from 30th Avenue west a distance of 4,410.1 feet to be constructed in accordance with the plans and specifications on file with the City Clerk and that the bid of Starostka Group Unlimited, Inc. in the sum of $4,098,297.20 be and is hereby accepted.

            BE IT FURTHER RESOLVED the Engineer’s Opinion of Probable Construction Cost for the construction of the Northwest Well Field Phase II (Water Transmission Main) and Water Connection District No. 2007-1 for 56th Street from 30th Avenue west a distance of 4,410.1 feet in the amount of $5,170,946.00 be and is hereby accepted.

BE IT FURTHER RESOLVED that the President of the Council of the City of Kearney, Nebraska, be and is hereby authorized and directed to execute contracts for such improvements in accordance with the bid, plans, specifications, and general stipulations pertaining thereto.

            PASSED AND APPROVED THIS 10TH DAY OF JULY, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

NORTHWESTERN ENERGY NATURAL GAS RATE ADJUSTMENT

 

Mayor Clouse opened for discussion the direct negotiations or negotiations through the Public Service Commission regarding NorthWestern Energy Natural Gas Rate Adjustment and to consider approval of Resolution No. 2007-136.

 

NorthWestern Energy is a natural gas provider within the City of Kearney and has recently filed a request with the Nebraska Public Service Commission to adjust its rates that it charges to its customers. The last time that NorthWestern sought an increase in its rates was in 1999.  Pursuant to Neb. Rev. Stats. Sec. §66-1838, a natural gas provider can choose to either negotiate directly with cities in which it serves or it can seek approval of Nebraska Public Service Commission by negotiating with the State Public Advocate.

 

NorthWestern Energy has requested that the Kearney City Council consider a resolution providing for direct negotiations and has made similar requests of the City of Grand Island, the Village of Alda, and the City of North Platte.  In order for there to be direct negotiations with the cities in its service area, NorthWestern would need to have an affirmative vote from cities which consist of at least fifty percent (50%) of the rate payers in their territory.  It is my understanding that Grand Island recently voted to not engage in direct negotiations but rather to have NorthWestern proceed with the Public Service Commission and the Public Advocate.  It is also my understanding that NorthWestern will be requesting for authorization for direct negotiation from the City of North Platte meeting at their July 17, 2007 meeting.  I have been advised that if Kearney and North Platte were to vote in the affirmative, that would be enough rate payers to total the required fifty percent (50%).

 

Back in 1999 when this issue was last addressed, NorthWestern negotiated directly with the cities and they are wanting to do that again in this situation.  Enclosed with your packets is information that has been supplied by NorthWestern on how this process works and how it is funded.  If the cities were to engage in direct negotiations with NorthWestern Energy, we would engage the services of an expert consultant to advise us on how NorthWestern is calculating its rates and whether those rates are appropriate.  It will also be necessary to engage the services of an attorney or to seek out an attorney to act as lead counsel to negotiate with NorthWestern. As is indicated in the materials, there is a loan fund which has been established to provide for payment of the consulting fees as well as the legal fees that might be involved in this negotiation process.  Technically, this is not really a loan fund as there is no obligation by the cities to pay the money back, it is a fund established to provide for payment of these expenditures and is maintained by the State it would be used to cover expenses which might be incurred as a part of this process.

 

The question to be considered by the Council is whether or not the direct negotiations or negotiations through the Public Service Commission would be in the best interests of the citizens of Kearney and those citizens who are rate payers to NorthWestern Energy.  Should the direct negotiations not result in an agreement as to the appropriate rate, it is still possible for the rate to be negotiated through the Public Service Commission and the Public Advocate but it would be hoped that this would not occur as this could duplicate expenditures and would, presumably, not be in the best interests of rate payers.

 

Attorney Mark Fahlesen for NorthWestern Energy stated  that on June 1, 2007 they filed an application for their first rate increase since 1999.  It is a modest 5.48 percent overall adjustment.  The statute of how this works changed in 2003.  Prior to 2003, cities such as Kearney would negotiate directly with NorthWestern. In 2003, the Nebraska Legislature chose to retain elements of the old system allowing cities to directly negotiate with companies. The other option was to go to the Public Service Commission.  Jurisdiction over some of these natural gas issues was transferred to the Natural Gas Department of the Public Service Commission.  There are four cities in this rate area, Kearney, North Platte, Alda and Grand Island.  In order for them to negotiate with their group of cities, they have to have at least half of the cities representing half of the rate payers.  In the event that Kearney and North Platte were to vote in favor of this, they would negotiate with the entire group.  Alda passed the resolution.  Grand Island had a confusing vote, they voted 4-5 to approve it, but the mayor decided to vote (although legally he was not sure she had the right to do so).  It ended up that it did not pass.  North Platte is scheduled to vote and fully anticipate that they will be in favor.  If Kearney approves it and in the event that North Platte does not approve, then they go to the Public Service Commission.  If Kearney does not vote in favor, then North Platte’s vote along with the others would not be enough to conduct direct negotiations with NorthWestern.

 

NorthWestern is one of the companies that asked to keep this part of the state statute because they have a great relationship with cities, such as Kearney. Mr. Fahlesen stated that cannot be said of other natural gas companies in the state.  Aquilla and Kinder Morgan have chosen to go the other route because he did not believe they have the relationships that they have with their cities.  This increase will not cost the City of Kearney anything.  They will always be forthcoming with any information that the City needs to make their decision as they have been in past. 

 

City Attorney Michael Tye stated if the Council votes for these direct negotiations, the cities involved would get together.  In the past, the cities have hired a consultant who comes in to evaluate the information that is collected from NorthWestern and advise the city on how the rates are being established and their proposal.  He guessed that the cities affected would do the same thing this time and would come together to hire legal counsel to do the negotiations. 

 

Mayor Clouse stated that he is aware of examples where direct negotiations can reach a point and the city has exceeded funds beyond the revolving fund that is available.  Mr Fahlesen stated there is approximately $25,000.00 in funds which is a significant amount of money.  He believed that the cities working together could do it much more cost effectively than for example, working through the public advocate.

 

City Manager stated that a consideration is that “nothing is free”.  Negotiations, no matter how they are done, have costs that get back in essence to the rate payers.  One of the benefits of direct negotiations is to be able to sit down with the four communities and discuss if the six percent increase since the last increase in 1999, should trigger extensive research, consulting fees and costs that would simply be passed on to their rate payers regardless.  On the other hand, one of the potential negatives would be that all four communities might not agree and that would be the challenge in direct negotiations.  Kinder Morgan, currently Source Gas, bypassed the City entirely when they did their 8.3 percent increase. Source Gas put their rate increase into effect almost immediately and then true up later.

 

Mr. Fahlesen stated that NorthWestern decided to do an interim rate increase because it confuses their customers and it is not fair. 

 

Source Gas had to take their 8.3 percent increase before the Public Service Commission to be approved. The Public Service Commission made a $3 million reduction from the $11 million they requested which would be in the five percent range. 

 

Mayor Clouse inquired if they would have to reach consensus or does majority rule in the negotiations with NorthWestern.  City Manager stated that it would be majority rule which also could be a challenge.  City Attorney stated if the direct negotiations did not result in an agreed rate, the alternative is to go through the Public Service Commission process. The hope would be that would not happen because it would duplicate efforts.  It would require the communities to come together and reach an agreement with NorthWestern on what they think that appropriate rate should be.  That is a key point, if they decide to direct negotiate and after giving it the best shot without a great deal of expense and an agreement cannot be reached then the Public Service Commission would consider the matter. 

 

Laura Demman, Director of the Natural Gas Department with the Public Service Commission, stated that the Commission is neutral on whether the cities negotiate this rate case. The Commission is available to facilitate the use of this option.  If there were to be discovery disputes or other procedural issues that arise, the Commission would be the proper place for those to be addressed for resolution.  As of the new fiscal year the funds in the revolving loan fund is $285,000.00, the bulk of which would be available for a loan.  They have procedures set up for the purpose of the loans.  If the city chose to contract with a consultant, the amount that would be billed for those services would be reimbursed by NorthWestern from this revolving loan fund.  In the end, the utility would be repaying the loan fund for the total costs incurred.  In the end those costs do go back to the rate payers as a surcharge on their bill.  This would also be the case from the public advocate if the case took the traditional route. 

 

Public Advocate Roger Cox stated under the Municipal Natural Gas Regulation Act, the city was the actual regulator and setter of the rates and a city official sat on the executive committee participating in the hard decisions in negotiations.  The State Natural Gas Regulation Act retained some things from the Municipal Natural Gas Regulation Act and other things changed.  One thing that was determined is city officials did not understand the rate making process and many did not want to and asked if someone could do it for them. It is unclear why the Legislature did determine to centralize the regulation with the Public Service Commission. Every rate case hopefully becomes a negotiation at some point. The Council needs to remember it is a rate case and if the negotiations do not result in a settlement, then someone needs to decide and set and rates. 

 

There is always a negotiation in every rate case, but in his experience he has never seen it be meaningful until there is a vast amount of information which is obtained through the formal discovery process.  In the timeline that NorthWestern has provided, the Act provides that the negotiations, if approved, shall occur in a period not to exceed 90 days, but if both parties agree it can be extended.  One of the hearing officers of the Public Service Commission will set a hearing schedule and a discovery schedule. Typically, this timeframe is 4-5 months for discovery involving sometime hundreds of discovery requests.  It is not simple process.  It is a complicated matter because you would be looking at every cost that utility has incurred during the test period which must be looked at and evaluated.  In theory, you could simply meet and negotiate, you could look at what happened in another rate case, but every rate case is different.  If you do not choose the direct negotiation route, the city attorney can intervene formally or informally before the Commission.  Mr. Cox stated he makes it a policy when city officials have questions of where the Commission stands on these cases, to provide them with whatever information they might request.   

 

Mayor Clouse stated that the City has an excellent relationship with NorthWestern and was aware that the other communities are interested in negotiating with them and have the same type of relationship as Kearney. He preferred to go with the direct negotiations and thought the City could continue those relationships. 

 

Moved by Clouse seconded by Kearney to approve Resolution No. 2007-136 evidencing the City of Kearney's intent to negotiate directly an agreed rate change with Northwestern Energy and authorizing the City Attorney and City Manager to take appropriate steps to apply for a loan from the revolving loan fund. Roll call resulted as follows: Aye: Clouse, Kearney, Buschkoetter, Lear, Lammers. Nay: None. Motion carried.

 

RESOLUTION NO. 2007-136

 

            WHEREAS, on June 1, 2007 NorthWestern Corporation, doing business as NorthWestern Energy (“NorthWestern”), filed an Application for Natural Gas Rate Increase (“Application”) with the Nebraska Public Service Commission (“PSC”); and

            WHEREAS, Section 66-1838 of the Nebraska Revised Statutes authorizes jurisdictional utilities such as NorthWestern to negotiate directly with affected municipalities such as the City of Kearney with respect to a proposed general rate change provided, among other things, municipalities representing more than fifty percent (50%) of the rate payers within the affected municipalities adopt resolutions evidencing their intent to negotiate with the jurisdictional utility; and

            WHEREAS, NorthWestern desires to negotiate directly with the City of Kearney as permitted by Section 66-1838 of the Nebraska Revised Statutes; and

            WHEREAS, the City of Kearney desires to negotiate directly with NorthWestern as permitted by Section 66-1838 of the Nebraska Revised Statutes; and

            WHEREAS, in the event a sufficient number of affected municipalities adopt resolutions expressing a desire to negotiate directly with NorthWestern with respect to the Application, the City of Kearney desires to work cooperatively with the other affected municipalities in negotiating with NorthWestern and to jointly apply for a loan from the Nebraska Municipal Rate Negotiations Revolving Loan Fund (“Fund”) as permitted by Section 66-1839 of the Nebraska Revised Statutes.

            NOW, THEREFORE, BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, that:

            1.   The City of Kearney desires to negotiate directly with NorthWestern with respect to the Application as permitted by Section 66-1838 of the Nebraska Revised Statutes.

            2.   The City Attorney and other City staff are directed to work cooperatively with the other affected municipalities and, in the event a sufficient number of affected municipalities adopt resolutions expressing a desire to negotiate directly with NorthWestern, to commence joint negotiations with NorthWestern and to take appropriate steps to apply for a loan from the Fund.

            3.   A copy of this resolution is to be provided to the PSC and NorthWestern within seven (7) days after its adoption.

            PASSED AND APPROVED THIS 10TH DAY OF JULY, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

OPEN ACCOUNT CLAIMS: PLATTE VALLEY STATE BANK - $41,090.06, NPPD - $11,995.63, SCHOOL DISTRICT #7 - $1,237.10

 

Moved by Kearney seconded by Lammers that Open Account Claims in the amount of $41,090.06 payable to Platte Valley State Bank, and in the amount of $11,995.63 payable to Nebraska Public Power District be allowed. Roll call resulted as follows: Aye: Buschkoetter, Lammers, Kearney. Nay: None. Clouse and Lear abstained. Motion carried.

 

Moved by Lear seconded by Clouse that Open Account Claims in the amount of $1,237.10 payable to School District #7 be allowed. Roll call resulted as follows: Aye: Clouse, Lear, Kearney. Nay: None. Buschkoetter and Lammers abstained. Motion carried.

 

VII.    REPORTS

 

TRAFFIC SIGNAL AT 2ND AVENUE AND 48TH STREET

 

City Manager Michael Morgan gave an update on the turn signal on 48th Street and 2nd Avenue.  The state conducted a traffic study and determined it did not warrant a traffic light.

 

VIII.    ADJOURN

 

Moved by Lear seconded by Bushkoetter that Council adjourn at 8:39 p.m. Roll call resulted as follows: Aye: Clouse, Lammers, Kearney, Buschkoetter, Lear. Nay: None. Motion carried.

 

                                                                                    STANLEY A. CLOUSE

                                                                                    PRESIDENT OF THE COUNCIL

                                                                                    AND EX-OFFICIO MAYOR

ATTEST:

MICHAELLE E. TREMBLY

CITY CLERK