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Home My WebLink About2005 [01] Jan 06 {Book 32} l' CITY OF ST. JOSEPH . www.cityofstjoseph.com City of St. Joseph January 6, 2005 7:00 PM Administrdtor 1. 7:00 PM Call to order ludy Weyrens 2. Approve Agenda Mdyor 3. Consent Agenda Richdrd CCJrlbom a. Mayor Appointments - Requested Action: Accept the Mayor Appointments for 2005 as presented by Mayor Carlbom. Councilors b. FSA Plan Amendment - Requested Action: Authorize the Administrator to execute AI R.ðssier a plan amendment to include the COBRA Regulations issued May 26, 2004. Ross Rieke c. 2004 Audit - Requested Action: Authorize the Administrator to execute the Engagement letter between the City of St. Joseph and KDV to perform the 2004 R.enee Symdnietz audit. Ddle Wick d. Recreation Association - Requested Action: Authorize the Mayor and Administrator to execute the Park Property Lease for the period January 2005 through December 31, 2009. 4. Public Comments to the Agenda . 5. 7:05 PM Request to change Noise Ordinance 6. 7:20 PM Abandoned Vehicle Ordinance 7. City Engineer Reports a. Well Field Update b. Southwest Beltway Update c. Improvement Schedule Update 8. Mayor Reports 7. Council Reports 9. Administrator Reports 10. Adjourn Fife . 2.) College Avenue North' DO Box 668 . Sdint. loseph. Minnesotd )6374 Dhone 12.0.,6,·72.01 Fd x ,2.0.,6,.0,42. .d l . IT. JOSEPH CITY COUNCIL JANUARY 6, 2005 FOR THE OFFICIAL RECORD PLEASE SIGN YOUR NAME AND ADDRESS NAME ADDRESS /'<"~ 1:- ¿ s &1- 1. l¡!';ð{!J- c: d zL- LY[7¢ A,,,. . J-,~ 2. (] / 3. ~/ 4. ~þ // t/' / ./ / 5. / t/ 6. 7. 8. . 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. . . I Attachment: Yes or No I REQUEST FOR COUNCIL ACTION Consent 3(a) Mayor Appointments DATE: January 6, 2005 Administration ORIGINATING DEPARTMENT DEPARTMENT APPROVAL AGENDA ITEM 2005 Mayor Appointments PREVIOUS ACTION RECOMMENDED COUNCIL ACTION . Accept the appointments as prepared by Mayor Carlbom ~ FISCAL IMP ACT COMMENTSIRECOMMENDATIONS Annually the Mayor prepares the Council appointments, which need to be ratified by the City Council. . 2005 Mayoral Appointments All terms are one year in length unless otherwise noted. Three year terms begin In January and end in January of the cited year. Acting Mayor Al Rassier APO Executive Committee Mayor Carlbom APO Full Board Mayor Carib om, Renee Symanietz, Dale Wick Building Inspector and Compliance Officer Inspectron Inc. Cable Commission 3 year tern - 3 member commission 2004-2006 Tom Nahan 2005-2007 Noreen Loso Central MN Transportation Alliance Declined Membership Economic Development Authority 6 year term, 5 member authority 2004-2009 Mayor Carlbom 2003-2008 Tom Skahan 2002-2007 Ross Rieke 2001-2006 Bruce Gohman 2005-2010- ---- -- Ken Jacobson Emergency Services Director Ordinance No. 27 To be determined Fire Advisory Board Randy Torborg Richard Carlbom St. Joseph Township Appointment Judy Weyrens Joe Bechtold Fire Chief Annual Election, Council confinned Randy Torborg Assistant Fire Chief Terry Loso Fire Marshall Inscpectron Inc. Forester Mike Sworski Healthy Community Partnership Mayor Carib om Health Board Ordinance No.26 . 3 year term, 3 member board 2001-2004 Thomas Newton MD 2005-2007 Randy Torborg 2004-2006 Ken Twit Hiring Committee Mayor Carlbom Dale Wick Ross Rieke Renee Symanietz Al Rassier Orderly Annexation District Planning & Mayor Carib om Zoning Authority Joint Planning Committee Mayor Carlbom (Orderly Annexation) Gary Utsch Marge Lesnick Al Rassier Official Depositories First State Bank of St. Joseph US Bank Smith Barney Shearson Dain Rauscher Northland Securities Central MN. Credit Union Official Newspaper - Legal Notices St. Joseph Newsleader except construction/improvements Official Newspaper - Legal Notices St. Cloud Times construction & improvements Park Board 3 year tenn, 7 member board 2005-2007 Cory Ehlert 2005-2007 Bruce Berghorst 2004-2006 Lonnie Abbott 2004-2006 Deedra Deuhs 2004-2006 Marjorie Lesnick 2004-2006 Chuck Muske Park Board Liaison Dale Wick . Planning Commission 3year tenn, 7 member commission 2004-2006 Mike Deutz 2004-2006 Gary Utsch 2005-2007 S. KathJeen Kallinowski OSB 2004-2006 Marjorie Lesnick 2004-2006 Jim Graeve 2005-2007 Bob Loso Planning Commission Voting Liaison Al Rassier Police Commissioner Ordinance No. 21 Mayor Carib om I Properties Number OfficiaJ Ordinance No. 31 City Engineer , ; Rental Housing Inspector Inspectron Inc. I I Safety Coordinator Dick Taufen I I , St. Cloud Economic Development Partnership Richard Carlbom ! I SCEDP Alternate Judy Wevrens I St. Cloud Area Planning District Board Mayor Carib om SCAPD Alternate Renee Svrnanietz I Sales Tax (half cent) Mayor Carlbom i Judy Weyrens I I I Steams County League of Cities Mayor Carlbom [ Representatives Renee Symanietz i I I Weed Control Commissioner Mayor Carlbom Assistant Weed Control Commissioner Mike Sworski i St. Cloud Area Chamber of Commerce Declined Membership I ; St. Joseph Recreation Association Dale Wick School Options Committee Cory Ehlert Larry Hosch Dale Wick . I Rick Schultz Tara Bierschbach I Deb Lalley - Jerry Von Korff (Dist. 742 representative) Ken Jacobson Bruce Bechtold Further open position available Downtown Theme Committee No Positions appointed (Committee not operational) Racial Hannony Taskforce Mayor Carib om I Chief Pete Jansky Affordable Housing (LCHU) Board Mayor Carib om ì Alternate Dale Wick I Affordable Housing (LCHU) Committee ì Judy Weyrens i Alternate Dale Wick DO\\11town Committee Maureen Forsythe I Kurt Schneider . . . I Attachment: Yes or No I REQUEST FOR COUNCIL ACTION Cosnet 3(b) FSA Plan Amendment DATE: January 6,2005 Administration ---- ORIGINATING DEPARTMENT - __ n DEPARTMENT APPROVAL AGENDA ITEM FSA Plan Amendment - Authorize the Administrator to execute the plan amendment including COBRA regulations PREVIOUS ACTION The City hires Stanton Group to manage the Flexible Spending Account (FSA) for the City. FSA programs carry very stringent regulations and it is best to hire an expert to assure that all regulations are . adhered to. RECOMMENDED COUNCIL ACTION Authorize execution as requested FISCAL IMP ACT COMMENTS/RECOMMENDATIONS - ~ Page 1 of 1 Judy Weyrens From: "Conger, Michelle" <MConger@acclaimbenefits.com> . Sent: Friday, October 22,20049:50 AM Attach: Plan Amendment - Final COBRA regs.doc Subject: Final COBRA Regs - SMM Good Morning All: On May 26, 2004, the U.S. Department of Labor (DOL) released the final COBRA notice regulations. The fmal regulations were substantially similar to the proposed regulations issued by the DOL in May 2003. These regulations apply to notice obligations arising in plan years beginning on or after November 26, 2004, which means for "calendar year plans" (plans with a plan year ending December 31), the new rules will be effective January 1, 2005. In order for your FSA Plan to comply with the final COBRA regulations, your FSA Plan must be amended to include these new rules. If Acclaim Benefits drafted your plan documents, they must be revised. Attached is a sample Board Resolution and Plan Amendment with the necessary language required to amend your FSA Plan. Please have the appropriate representative sign the Board Resolution and Plan Amendment and return it to Acclaim Benefits by November 30, 2004. A Summary of Material Modification (SMM) will be forwarded upon receipt of the Board Resolution and Plan Amendment. There is no charge for this amendment. If a party other than Acclaim Benefits will be drafting the plan amendment to follow the final COBRA regulations, please fonvard a copy ofthe amendment to me for your files here at Acclaim Benefits. The attached document is a boilerplate document. Y ou'll need to fill in your company name, the name . of your FSA Plan and the state your Plan is incorporated under. The name of your FSA Plan can be found on your most recent Plan Document andlor Summary Plan Description. If you should have any questions when filling out the Resolution or Plan Amendment, please don't hesitate to contact me at 763- 278-4278. «Plan Amendment - Final COBRA regs.doc» Thank you, Michelle L. Conger Acclaim Benefits, a division of Stanton Group (763) 278-4278 (Ph) (763) 278-4279 (fax) mconger@acclaimbenefits.com Confidentiality Notice: The infonnation contained in this e-mail communication and any attached documentation may be privileged, confidential or other wise protected from disclosure and is intended only for the use of the designated recipient (s). The use, distribution, transmittal or re-transmittal by any unintended recipient of this communication is strictly prohibited. If you are not the intended recipient of this e-mail, please notify the above sender of the error and immediately delete this e-mail and any attachments from your system. - ~ 1/412005 Resolution City of St. Joseph The undersigned, Judy Weyrens, serving as Administrator for the City of S1. Joseph, (the "Employer"), duly organized and existing under the laws of the State of Minnesota, does hereby certify that at a meeting of the City Council, held on the 3rd day of January, 2005, at which a quorum was present, the City Council unanimously adopted the following resolution: WHEREAS, the "Employer" provides employees with an opportunity to pay for certain employee welfare benefits on a pre-tax basis through the Acclaim Benefit (the "Plan"); and WHEREAS, the Employer considers it desirable and in the best interests of the Plan to make the following amendment to the Plan; NOW, THEREFORE, pursuant to the authority reserved in the Plan to allow amendments to the Plan, the Plan is amended as follows: . The Plan will operate using the Final COBRA Regulations issued May 26, 2004. NOW, THEREFORE, BE IT RESOLVED, that City of S1. Joseph Acclaim Benefit be and the same is amended effective January 1, 2005; BE IT FURTHER RESOLVED, that any proper members of the Board of Directors are hereby authorized to make such contributions :trom the funds of the Employer as are necessary to carry out the provisions of said plan at any time; and BE IT FURTHER RESOLVED, that in the event any conflict arises between the provisions of said Plan and the Employee Retirement Income Security Act of 1974 (ERISA) or any other applicable law or regulation (as such law or regulation may be interpreted or amended), the Company shall resolve such conflict in a manner which complies with ERISA or such law or regulation. Date Judy Weyrens, Administrator - - C:\Documents and Seuiugs\Judj\My Documents\Acclaim Benefit\Plan Ametidmenl- Final COBRA regs.doc PLAN AMENDMENT TO THE City of St. Joseph Acclaim Benefit Pursuant to the authority retained by the Employer under Section 8.1 of the Flexible Benefit Plan (the "Plan"), the Plan is hereby amended as follows: . -c_~_-ó·,~~,_,~_.__~.~ ' .' -- --- _-~... li...;...:---.-,-_ --- " - - ----- ~------ DATED: St. Joseph City Council By Judy Weyrens Its Administrator - - CDocumevlS ¡aDd SeHings')udj".\{y Dc<IJments'Acdaim BroefirPla..'1 A1;Ja:dmCfJ! ~ FifjÛ COBRA reg;; d;x I . Attachment: Yes or No I . REQUEST FOR COUNCIL ACTION Consent 3( c) - 2004 Audit DATE: January 6, 2005 Administration ORIGINATING DEPARTMENT DEPARTMENT APPROVAL AGENDA ITEM 2004 Audit - Authorize the execution of the engagement letter for the 2004 Audit PREVIOUS ACTION ~ --'- ._---~-.~-~---_. . RECOMMENDED COUNCIL ACTION Authorize execution of the letter hiring KDV to complete the 2004 City Audit FISCAL IMPACT $ 11.000 to $ 15,000 COMMENTS/RECOMMENDATIONS Three years ago new accounting standards were adopted requiring all municipalities to comply with a report entitled GASB 34. GASB 34 is intended to simplify the financial statement and provide a one page summary of the financial standing of the City. Due to the volume of work required, a phase in plan was adopted at the same time. The City of St. Joseph must implement the new standards in 2004. Last year when the City received the proposal from KDV we discussed requesting proposals for the service in 2005. I did some checking with other firms and LA WCO stated that the have a municipal division and they are not the cheapest firm, but they deliver a good product. Since KDV has been working with the City over the past years to get ready for GASB 34 it makes sense to use KDV again this year. The implementation should be cheaper as they outlined the process. - ~ KDV RECE~VED DEC 0 1 2004 . KERN· DEWENTER· VI ERE CITY OF ST. JOSEPH November 24, 2004 Ms. Judy Weyrens, City Administrator City ofSt. Joseph P.O. Box 668 S1.Joseph,~ 56374 Dear Judy; We are pleased to confinn our understanding of the services we are to provide to the City of S1. Joseph, Minnesota, for the year ended December 31, 2004. We will audit the financial statements of the govenunent activities, the business-type activities, each major fund, and the aggregate remaining fund infonnation, which collectively comprise the entity's basic financial statements, of the City of St. Joseph, Minnesota as of and for the year ended December 31,2004. The document we submit to you will also include the following additional infonnation . that will be subjected to the auditing procedures applied in our audit of the financial statements. 1. Combining Financial Statements 2. Supplemental Schedules The management's discussion and analysis that is a required component of the basic financial statements will be subjected to certain limited procedures, but will not be subjected to the auditing procedures applied in our audit, and for which our auditors' report will disclaim an opinion. Audit Objective The objective of our audit is the expression of an opinion as to whether your financial statements are fairly presented, in all material respects, in confonnity with U.S. generally accepted accounting principles and to report on the fairness of the additional infonnation referred to in the first paragraph when considered in relation to the financial statements taken as a whole. Our audit will be conducted in accordance with U.S. generally accepted auditing standards· and will include tests of the accounting records and other procedures we consider necessary to enable us to express such an opinion. If our opinion on the financial statements is other than unqualified, we will fully discuss the reasons with you in advance. If, for any reason, we are unable to complete the audit or are unable to fonn or have not fonned an opinion, we may decline to express an opinion or to issue a report as a result of this engagement. - --- fu:pert advice. When Y0II- need it.S.~ Minneapolis St. Cloud \Vaite Park wwu·,kdv.com 7100 Northland Circle N, 220 Park Avenue S. 415 3rd Street N. Cerlifie-d Public A.c-COImtnnts Suite 119 P.O. Box 1304 Suite 100 877.912.7696 Finaucial Sewiæs lv1inneapolis, IviÏnnesota $1. Cloud, Minnesota 'Vaite Park, Minnesota Technology Help Desk: OI;ganiZtllion DeFeloþ11iel1i 55428-1500 56302 56387-2510 866.400.6426 Strategic C01i5ulting Phone: 763.537.3011 Phone: 320.251.7010 Phone: 320.252.7060 Technology Sen'¡æs Fax: 763.537.9682 Fax: 320.251.1784 Fax: 320.252.9627 November 24, 2004 Page 2 of6 Management Responsibilities Management is responsible for making all financial records and related infonnation . available to us. We understand that you will provide us with such infonnation required for our audit and that you are responsible for the accuracy and completeness of that infonnation. We will advise you about appropriate accounting principles and their application and will assist in the preparation of your financial statements, but the responsibility for the financial statements remains with you. As part of our engagement, we may propose standard, adjusting, or correcting journal entries to your financial statements. You are responsible for reviewing the entries and understanding the nature of any proposed entries and the impact they have on the financial statements. That responsibility includes the establishment and maintenance of adequate records and effective internal control over financial reporting, the selection and application of accounting principles, and the safeguarding of assets. Management is responsible for adjusting the financial statements to correct material misstatements and for confirming to us in the representation letter that the effects of any uncorrected misstatements aggregated by us during the current engagement and pertaining to the latest period presented are immaterial, both individually and in the aggregate, to the financial statements taken as a whole. You are responsible for the design and implementation of programs and controls to prevent and detect fraud, and for informing us about all known or suspected fraud affecting the government involving (a) management, (b) employees who have significant roles in internal control, and (c) others where the fraud could have a material effect on the financial statements. You are also responsible for informing us of your knowledge of any allegations of fraud or suspected fraud affecting the government received in communications from employees, fomler employees, regulators or others. In addition, you are responsible for identifying and ensuring that the entity complies \vith . applicable laws and regulations. Audit Procedures - Gener-al An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements; therefore, our audit will involve judgment about the number of transactions to be examined and the areas to be tested. We will plan and perfonn the audit to obtain reasonable rather than absolute assurance about whether the financial statements are free of material misstatement, whether from errors, fraudulent financial reporting, misappropriation of assets or violations of laws or governmental regulations that are attributable to the entity or to acts by management or employees acting on behalf of the entity. Because an audit is designed to provide reasonable, but not absolute, assurance and because we will not perfonn a detailed examination of all transactions, there is a risk that material misstatements may exist and not be detected by us. In addition, an audit is not designed to detect immaterial misstatements, or violations of laws or governmental regulations that do not have a direct and material effect on the financial statements. However, we will infonn you of any material errors that come to our attention and we will infonn you of any fraudulent financial reporting or misappropriation of assets that come to our attention. 'vVe will also infonn you of any violations of laws or governmental regulations that come to our attention, unless clearly inconsequential. Our responsibility as auditors is limited to the period covered by our audit and does not extend to matters that might arise during any later periods for which we are not engaged as auditors. - - November 24, 2004 Page 3 of6 . Our procedures will include tests of documentary evidence supporting the transactions recorded in the accounts, and may include tests of the physical existence of inventories, and direct confinnation of receivables and certain other assets and liabilities by correspondence with selected individuals, creditors and financial institutions. We will request written representations from your attorneys as part of the engagement, and they may bill you for responding to this inquiry. At the conclusion of our audit, we will also require certain written representations from you about the financial statements and related matters. Identifying and ensuring that the City complies with laws, regulations, contracts and agreements is the responsibility of management. As part of obtaining reasonable assurance about whether the financial statements are free of material misstatement, we will perfonn tests of the City's compliance with applicable laws and regulations and the provisions of contracts and agreements. However, the objective of our audit will not be to provide an opinion on overall compliance and we will not express such an opinion. Audit Procedures - Internal Control In planning and perfonning our audits, we will consider the internal control sufficient to plan the audit in order to detennine the nature, timing, and extent of our auditing procedures for the purpose of expressing our opinion on the City's financial statements. An audit is not designed to provide assurance on internal control or to identify reportable conditions. However, we will infonn the governing body or audit committee of any matters involving internal control and its operation that we consider to be reportable . conditions under standards established by the American Institute of Certified Public Accountants. Reportable conditions involve matters coming to our attention relating to significant deficiencies in the design or operation of the internal control that, in our judgment, could adversely affect the entity's ability to record, process, summarize, and report financial data consistent with the assertions of management in the financial statements. Audit Administration, Fees and Other We understand that your employees will prepare all cash or other confinnations we request and will locate any invoices selected by us for testing. The workpapers for this engagement are the property of Kern, DeWenter, Viere, Ltd. and constitute confidential infonnation. However, we may be requested to make certain workpapers available to regulatory or state agencies pursuant to authority given to it by law or regulation. If requested, access to such workpapers will be provided under the supervision of Kern, DeW enter, Viere, Ltd' s personnel. Furthennore, upon request, we may provide photocopies of selected workpapers to regulatory or state agencies. The regulatory or state agencies may intend, or decide, to distribute the photocopies or infonnation contained therein to others, including other governmental agencies. This engagement letter includes your authorization for us to supply you with electronically fonnatted financial statements or drafts of financial statements, financially sensitive infonnation, spreadsheets, trial balances or other financial data from our files, upon your request. - ~ November 24, 2004 Page 4 of6 The workpapers for this engagement win be retained for a minimum of three years after the date the auditors' report is issued or for any additional period requested by the . regulatory or state agencies. Ifwe are aware that a regulatory agency, pass-through entity or auditee is contesting an audit finding, we will contact the party(ies) contesting the audit finding for guidance prior to destroying the workpapers. If you intend to publish or otheIWise reproduce the financial statements and make reference to our Finn name, you agree to provide us with printers' proofs or masters for our review and approval before printing. You also agree to provide us with a copy of the final reproduced material for our approval before it is distributed. Additionally, if you include our report or a reference to our Finn name in an electronic fonnat, you agree to provide the complete electronic communication using or referring to our name to us for our review and approval prior to distribution. During the course of our engagement, we \vill request infonnation, and explanations from management regarding the City's operations, internal controls, future plans, specific transactions and accounting systems and procedures. At the conclusion of our engagement we will require, as a precondition to the issuance of our report, that management provide certain representations in a written representation letter. The procedures we will perfonn in our engagement and the conclusions \ve reach as a basis for our report will be heavily influenced by the written and oral representations that we receive from management. Accordingly, false representations could cause us to expend unnecessary efforts or could cause a material error or a fraud to go undetected by our procedures. In view of the foregoing, you agree that we shall not be responsible for any misstatements in the City's financial statements that we may fail to detect as a result of false or misleading representations that are made to us by management. . In addition, the City further agrees to indemnify and hold us hannless for any liability and all reasonable costs, including legal fees that we may incur as a result of the services perfonned under this engagement in the event there are false or misleading representations made to us by any member of the City's management, except to the extent such liability or costs are detennined to have resulted from the intentional or deliberate misconduct of Kern, DeWenter, Viere, Ltd. personnel. \Ve estimate that our fees for these services will be $ 11,000 for the audit of the City's basic financial statements, plus a GASB Statement No. 34 Implementation Fee of $ 5,000 - $12,000. The fee estimate is based on anticipated cooperation from your personnel and the assumption that unexpected circumstances will not be encountered during the audit. If significant additional time is necessary, we win discuss it with you and arrive at a new fee estimate before we incur the additional costs. Our invoices for these fees will be rendered each month as work progresses and are payable on presentation. In accordance with our finn policies, work may be suspended if your account becomes 60 days or more overdue and will not be resumed until your account is paid in full. Ifwe elect to tenninate our services for nonpayment, our engagement will be deemed to have been completed upon written notification oftennination, even if we have not completed our report. You will be obligated to compensate us for all time expended and to reimburse us for all out-of-pocket expenditures through the date oftennination. A service charge of 1 % per month, which is an annual rate of 12%, will be added to all accounts unpaid 30 days after billing date. If collection action is necessary, expenses and reasonable attorney's fees will be added to the amount due. - ......... November 24, 2004 Page 5 of6 . The City agrees to perfonn the following functions related to any bookkeeping training assistance services in connection with this engagement: a. Make all management decisions and perfonn all management functions. b. Designate a competent individual to oversee the services. c. Evaluate the adequacy and results of the services perfonned. d. Accept responsibility for the results of the services. e. Establish and maintain internal controls, including monitoring ongoing activities. Because there are inherent difficulties in recalling or preserving infonnation as the period after an engagement increases, you agree that, notwithstanding the statute of limitations ofthe State of Minnesota, any claim based on this engagement must be filed within 12 months after perfonnance of our service, unless you have previously provided us with a written notice of a specific defect in our services that fonns the basis of the claim. The nature of our engagement makes it inherently difficult, with the passage of time, to present evidence in a lawsuit that fully and fairly establishes the facts underlying any dispute that may arise between us. We both agree that notwithstanding any statute of limitation that might otherwise apply to a claim or dispute, including one arising out of this agreement or the services perfonned under this agreement, or for breach of contract, fraud or misrepresentation, a lawsuit must be commenced within twenty-four (24) months after the date of our report. This twenty-four (24) month period applies and starts to run on the date of each report, even if we continue to perform services in later periods and even if you or we have not become aware of the existence of a claim or the basis for a . possible claim. In the event that a claim or dispute is not asserted at least sixty (60) days before the expiration of this twenty-four (24) month period, then the period of limitation shall be extended by sixty (60) days, to allow the parties to conduct non-binding mediation. Our role is strictly limited to the engagement described in this letter, and we offer no assurance as to the results or ultimate outcomes of this engagement or of any decisions that you may make based upon our communications with, or our reports to you. Your City will be solely responsible for making all decisions concerning the contents of our communications and reports, for the adoption of any plans and for implementing any plans you may develop, including any that we may discuss with you. You agree that it is appropriate to limit the liability ofKDV, its shareholders, directors, officers, employees and agents and that this limitation of remedies provision is governed by the laws of Minnesota, without giving effect to choice of law principles. You further agree that you will not hold us liable for any claim, cost or damage, whether based on warranty, tort, contract or other law, arising from or related to this agreement, the services provided under this agreement, the work product, or for any plans, actions or results of this engagement, except to the extent authorized by this agreement. In no event shall we be liable to you for any indirect, special, incidental, consequential, punitive or exemplary damages, or for loss of profits or loss of goodwill, costs or attorney's fees. The exclusive remedy available to you shall be the right to pursue claims for actual damages that are directly caused by acts or omissions that are breaches by us of our - duties under this agreement, but any recovery on any such claims, including any costs ~ November 24, 2004 Page 6 of6 and attorneys' fees incurred in pursuing them, shall not exceed the fees actually paid e under this agreement by you to KDV. We appreciate the opportunity to be of service to the City of St. Joseph, Minnesota and believe this letter accurately summarizes the significant terms of our engagement. If you have any questions, please let us know. If you agree with the terms of our engagement as described in this letter, please sign the enclosed copy and return it to us. Sincerely, Kern, DeW enter, Vi ere, Ltd. . .~~ Jennifer Thienes Certified Public Accountant RESPONSE: This letter correctly sets forth the understanding of the City of St. Joseph, Minnesota. By: Title: Date: . - ~ ~ . I Attachment: Yes or No I REQUEST FOR COUNCIL ACTION Consent 3( d) - Recreation Association DATE: January 6, 2005 ORIGINATING DEPARTMENT DEPARTMENT APPROVAL AGENDA ITEM Recreation Association Lease - Recommend authorization for the Mayor and Administrator to execute the lease as presented by the St. Joseph Recreation Association. PREVIOUS ACTION Historically the City has entered into a lease with the St. Joseph Recreation Association allowing for exclusive use of the Millstream Ball Fields. The Lease has always extended for a five year period and has . recently expired. The proposed lease is identical to the ones approved in the past with the only changes being the date and signatures. RECOMMENDED COUNCIL ACTION Authorize execution of the lease as presented. FISCAL IMPACT COMMENTSIRECOMMENDATIONS - ~ Real Estate Park Land License City of S1. Joseph . Minnesota A license is hereby granted this 6th day of January 2005, to the 81. Joseph Recreation Association, a Minnesota non-profit corporation, exclusive use of the following City Park property: The Southerly Two Hundred Ninety (290) feet of the Northerly Three Hundred Thirty (330) feet of the Westerly Six Hundred Twenty (620) feet of the Northwest Quarter of the Northeast Quarter (N\V II. NE II.) of Section Nine (9) Township One Hundred Twenty Four (124) North, of Range Twenty Nine (29) West, Steams County, Minnesota, and the area South of this parcel which is north ofthe west to east drainage ditch which traverses this tract. for a period of five years; subject to provision contained in this license. The City of S1. Joseph, Minnesota grants license subject to rules and regulations established by the City Council, subject to amendment from time to time, in consideration for the mutual promises contained herein, the parties agree as follows: The City of S1. Joseph will: 1. Allow the 81. Joseph Recreation Association to use the premises and to sell concessions and the City shall not grant license to any other individual, group, or organization, except on approval of this license holder. The Recreation Association shall not assign license to any other group, organization or individual without written approval of the City of 81. Joseph. 2. Maintain access roadway at the current conditions. . 3. Provide garbage containers and regular garbage pickup. 4. Provide supplies and materials nonnally in the City inventory and City owned equipment and services perfonned by City employees at no charge to the license holder. 5. Will carry nonnallandlord public liability insurance on the premises and to carry fire and extended coverage insurance on all structures erected and to be erected. 6. Yearly appoint one member of the City Council to serve for one year as a member of the Board of Directors of the Recreation Association and act as liaison behveen the City of S1. Joseph and the Recreation Association. 7. The City will cut and de-thatch grassed areas as necessary. City personnel \vill assist with the opening and closing of the facility. The 81. Joseph Recreation Association will: 1. Allow the use of the property by residents of the City of S1. Joseph and the general public on the licensed premises, for 81. Joseph Recreation Association approved softball activities. 2. Not remove any sand, gravel soil or materials of any kind without the pennission, in \vriting, of the 81. Joseph City Council. - ~ 3. Assume the expense of all materials purchased for installation upon the premises, and for -- repairs or services which are not normally the services of the City. The Recreation Association shall pay for all materials purchased and any costs incurred with respect to installation or materials, repairs, construction, before any liens, in the nature of mechanics liens, or otherwise, attached to the property and shall be responsible for the prompt removal of all mechanics liens which shall be filed with respect to material or services contracted by the S1. Joseph Recreation Association. 4. Conduct softball operations and concessions on the premises and net profits earned shall be used for maintenance and improvements of the premises according to the S1. Joseph Recreation Association Constitution and by-laws. 5. Provide the City with information and data needed to perform services agreed. The Board of Directors shall yearly appoint and provide the City with the individuals appointed to the following responsibilities. a. Director for maintenance and construction b. Director for concession operations. 6. Hire personnel to maintain the premises as required. 7. Shall leave all structures and improvements on premises on termination of this license. 8. Provide the City with an annual financial statement of its operations. 9. Open facility by putting into service water, irrigation, plumbing, lighting, electrical, cooling . and heating systems, with assistance of City Personnel. ..... 10. Make necessary repairs, aI!d perform maintenance to assure that the infields, outfields, base lines, bases, backstops, fences, warning track and bleachers are prepared for use as scheduled. Grassed areas will be aerated, herbicided and fertilized as necessary, by the S1. Joseph Recreation Association. 11. Recreation Association will function as employer and supervisor of their summer employee, maintain personnel records and complete payroll activities for their employee (s). 12. If any alcoholic beverages are sold as part of the concessions or operations, the S1. Joseph Recreation Association will carry dram shop liability insurance as required by State Law and local Ordinances. 13. The Recreation Association will make the area available for use by the general public during times when there are no scheduled league activities, or other organized activities by the S1. Joseph Recreation Association, included scheduled maintenance of the area, provided that the activity does not damage or alter the premises. For the purposes of this agreement and all other matters, the 51. Joseph Recreation Association shall constitute a separate entity from the City of S1. Joseph and at no time shall the S1. Joseph Recreation Association represent or hold itself out as a commission, subdivision or branch of the City of 51. Joseph. ~ ~ This agreement evidences the entire understanding and agreement of the parties. This agreement supersedes or revokes and prior agreement, either written or oral. No prior oral statements or agreements . are valid or enforceable. Modifications or amendments to this agreement shall be in writing, executed by the party against whom enforcement is sought. The St. Joseph Recreation Association shall pay the City of St. Joseph monthly rent to be established at zero dollars ($ 0.00) per month, for the teTITI of this agreement, for the use ofthe herein described property, according to the teTITIS of this agreement. T eTITIination of this agreement may be made by either party effective 180 days after receipt of written notification of such teTITIination. Dated this 6th day of January ,2005. CITY OF ST. JOSEPH A Municipal Corporation By_ Richard Carlbom, Mayor By . Judy Weyrens, City Administrator ST. JOSEPH RECREATION ASSOCIATION A Minnesota Non-Profit Corporation By Its President By Its Secretary ~ -- I Attachment: Yes orNo I REQUEST FOR COUNCIL ACTION Noise Violation - Request to Amend Ordinance DATE: January 6, 2005 Administration ORIGINATING DEPARTMENT DEPARTMENT APPROVAL AGENDA ITEM Noise Violation Request to Amend Ordinance PREVIOUS ACTION Over the past years the City has been requested to modify the Noise Ordinance requiring the use of a decibel meter. While the use of a decibel meter seems like it should be easy to implement, it is not. For your convenience I have included a portion from the MPCA Noise Control Guide on the operation of a decibel meter. When using a decibel meter the outside weather conditions must be considered. The use - of a decibel meter would require considerable training time and calibration records of the meter must be - maintained. PCA provides guidelines various guidelines for measuring noise. The noise they refer to is industrial and land use. The guidelines do not list a reading for disturbance or inconvenience, which is what the noise violation considers. I have included a portion of the noise violation whereby it states that if the noise can be heard off the property line it is considered a noise violation. The Officers do not issue a citation unless they hear the noise themselves and they usually park short of the property giving the property owner some latitude. If someone calls the police and noise can be heard, the Police Officers are not being arbitrary, they are responding to a complaint. The policy is enforced uniformly throughout the City using the same standards. A property owner receiving a noise violation has the opportunity to request an evidentiary hearing. A Noise Violation is considered alleged until the Council makes a finding that a violation did occur. Therefore, process is allowed to contest a violation. The memo from Pete indicates that in checking with the area Cities noise disturbances are treated the same way as St. Joseph. RECOMMENDED COUNCIL ACTION Deny the request to change the Ordinance requiring a decibel meter reading. - FISCAL IMP ACT ~ COMMENTS/RECOMMENDATIONS -- Just a background - this issue is being raised after the noise citation for ASK Management in November of 2004. The property owner did not request an evidentiary hearing so the violation was founded. It is my understanding that the property owner fined the tenants $ 750.00 and the City assessed a fine of $ 150.00. However, the City assesses the fine to the property owner not the tenants. With regard to the fine assessed by the property owner, the City has not control and cannot consider that when reviewing a noise violation. . - - , . '~.d-v.A " 'Ù I~r ~c-vv~c~ ' b. . .-tLL I~. ~~,) \\.. ,,~)¿.oo-J ~ ~ jJ~ß~~(J7·. d~ t-4J ~6~~,~~~~ ##.~. ./~CA;~. ~~ " , .~~.~ " J'~ cL~ ~1~~'·~·1.·~ ~~~~ ~~. (LtU ~/é ~-(ÚL ~ ~ ¡ ."" tl/t-L .. ~ ~ (~-~< tI.~ ' : '~'ð, - t~ ,~, C-~()' Y b~ ~ ~O.¿; Q.]~ ~~ L:4 ~Jt-~~. , ~~ 3~c::,?S-~ Z?91 ~ CHAPTER X - NUISANCES & OFFENSES . ORDINANCE 102 REGULATION OF NOISE Section 102.01: NOISES PROHIBITED. No person shall make or cause to be made any distinctly and loudly audible noise that is likely to unreasonably or unnecessarily annoy, disturb, injure or endanger the comfort, repose, health, peace, safety, or welfare of any person or precludes their enjoyment of property or affects their property's value. This general prohibition is not limited by the specific restrictions of unlawful acts listed in Section 2. Section 102.02: UNLAWFUL ACTS. The following acts are declared to be loud, disturbing and unnecessary noises in violation of this Ordinance, but said enumeration shall not be deemed to be exclusive. Subd.l: Horns, Audible Signaling Devices. Etc. No person shall repeatedly sound any audible signaling device on any vehicle except as a warning of danger. Subd.2: Exhaust. No person shall discharge the exhaust or permit the discharge of the exhaust of any steam engine, stationary internal combustion engine, motorboat, motor vehicle, or . snowmobile or other recreational vehicle except through a muffler or other device that effectively prevents loud or explosive noises there ÍÌ'om and complies with all applicable state laws and regulations. Subd.3: Defective Vehicles or Loads. No person shall use any vehicle so out of repair or so loaded as to create loud and unnecessary grating, grinding, rattling, or other noise. Subd. 4: Loading, Unloading, Unpacking, Opening of Boxes. No person shall create loud and excessive noise in loading, unloading, unpacking any vehicle, or the opening and destruction of bales, boxes, crates or containers. Subd.5: Radios, Phonographs, Paging Systems, Etc. No person shall use or operate or permit the use of operation of any radio receiving set, musical instrument, phonograph, paging system, machine, or other device for the production or reproduction of sound in a distinct and loudly audible manner that is likely to disturb the peace, quiet, and comfort of another person at any time with louder volume than is reasonably necessary for convenient hearing of the person or persons who are in the room, vehicle, chamber, or immediate vicinity in which such machine or device is being operated. Operation of any such set, instrument, phonograph, machine, or other device in such a manner as to be plainly audible at the property line of the structure or building in which it is located, in the hallway or apartment adjacent, or at the property line if the source is located outside a structure or building shall be prima facia evidence of a violation of this section. - 102-1 CHAPTER X - NUISANCES & OFFENSES Subd. 6: Participation in Noisy Parties or Gatherings. No person shall participate in any -- party or other gathering or pennit any party or other gathering of people giving rise to noise, which is likely to disturb the peace, quiet, or repose of another person. When a police officer receives a complaint and detennines that a gathering is creating such a noise disturbance, the officer may order all persons present, other than the owner or tenant of the premises where the disturbance is occurring, to disburse immediately. No person shall refuse to leave after being ordered by a police officer to do so. Every owner or tenant of such premises who has knowledge of the disturbance shall make every reasonable effort to see that the disturbance is stopped. Any such noise is presumed to have the effect of disturbing the peace, quiet, or repose of another person if it is heard outside the limits of the real estate from which the party is occurring. Such a noisy party or gathering constitutes a violation of this ordinance. Subd. 7: Animals. No person shall keep any animal that disturbs the comfort or repose of persons in the vicinity by its frequent or continued noise. Subd. 8: Engine Braking Prohibited. a) No person may slow a vehicle by the practice known as engine braking, also referred to as "jake braking" or "dynamic braking," whereby rapid downshifting of a vehicle's engine is used in lieu of applying a vehicle's brakes, causing loud noises to emit from the vehicle's engine and exhaust system. Engine braking by any motor vehicle on any public highway, street, parking lot or alley within the corporate limits of the City of S1. Joseph is hereby declared to be a public nuisance and is prohibited. . b) The foregoing provision shall not apply to emergency vehicles. Section 102.03: HOURLY RESTRICTION ON CERTAIN OPERATIONS. No person shall, between the hours of 9:30 p.m. and 6:00 a.m. drive or operate any minibike, or other recreational vehicle not licensed for travel on public highways. Snowmobiles and ATVs shall be controlled by the operation of the Snowmobile and A TV Ordinances and this Ordinance shall not cover the operation of snowmobiles. Section 102.04: LANDLORD'S LIABILITY. Violations of the noise control regulations shall be the act of the owner of the residential dwelling unit even though he does not reside in the unit as well as the persons on the premises who violate said regulations, except that the owner shall be liable only for those violations occurring after receipt of written notice from the City of St. Joseph or its police department of a violation of the noise control regulations having occurred at the residential dwelling unit. For purposes of this section, owner is defined to include corporations and partnerships as well as individual owners. Section 102.05: ENFORCEMENT. Subd. 1: Enforcement Duties. The police department shall enforce the provisions of this Ordinance. - 102-2 . ~ Minnesota Pollution ,..~__ _ Control Agency -.- 520 Lafayette Road, Saint Paul, Minnesota 55155-4194 A Guide to Noise Control in Minnesota . Acoustical Properties, Measurement, Analysis, Regulation . Noise Program Coordinator: Brian 1. Timerson e-mail: brian.timerson@pca.state.mn.us phone (651) 296-7898 FAX (651) 297-8701 revised 3/99 7030.0060 MEASUREMENT METHODOLOGY. It Subpart 1. Measurement location. Measurement of sound must be made at or within the applicable NAC at the point of human activity which is nearest to the noise source. All measurements shall be made outdoors. Subp. 2. Equipment specifications. All sound level measuring devices must meet Type 0, I, II, or S specifications under American National Standards Institute S 1.4-1983. Subp.3. Calibration. All sound level measuring devices must, at a minimum, be externally field calibrated before and after monitoring using a calibration device of known rrequency and sound pressure level. Subp. 4. Measurement procedures. The following procedures must be used to obtain representative sound level measurements: A. Measurements must be made at least three feet off the ground or surface and away from natural or artificial structures which would prevent an accurate measurement. B. Measurements must be made using the A-weighting and fast response characteristics of the sound measuring device as specified in American National Standards Institute Sl.4-1983. C. Measurements must not be made in sustained winds or in precipitation which results in a difference of less than ten decibels between the background noise level and the noise source being measured. D. Measurements must be made using a microphone which is protected from ambient conditions which would prevent an accurate measurement. Subp.5. Data documentation. A summary sheet for all sound level measurements shall be completed and signed by the person making the measurements. At a minimum, the summary sheet shall include: A. date; . B. time; C. location; D. noise source; E. wind speed and direction; F. telnperature; G. humidity; H. make, model, and serial number of measuring equipment; 1. field calibration results; J. monitored levels; and K. site sketch indicating noise source, measurement location, directions, distances, and obstructions. Statutory Authority: MS s 116.07 subds 2,4 History: 11 SR43; 17 SR 1279; 18 SR614 7030.0070 SOUND ATTENUATION MEASUREMENT METHODOLOGY. Subpart 1. Purpose. Sound level measurements made for assessing sound attenuation as specified in part 7030.0050, subpart 3, item B, C, or D, shall be made according to the requirements of this part. Subp. 2. Equipment. The equipment shall meet the requirements specified in part 7030.0060, subpart 2. Subp. 3. Calibration. The equipment must meet the calibration requirements specified in part 7030.0060, subpart 3. Subp.4. Measurement procedure. The measurement procedure described in 24 ,:,-,._------- ---, - '-- -<.:-. . ____ - __,,,'_. ___ .-: c, . - - ,-. . --- _.- --..-.'- -".. , - - - '-_.- -.-' -.. . -. - . . ·(:i~·ØJf8'f".t()$..~..a -. . . "'.~ -..... Memorandum To: Judy Weyrens, City Admin. CC: From: Peter E. Jansky;,ChiefofP&lic~ n - -- Date: 01/04/05 Re: Noise Enforcement \ As you requested, I checked with the other law enforcement agencies in regards to enforcement of noise complaints. It seems that all the agencies do enforcement the same as St. Joseph. If it can be heard off the property it is a violation. This includes both homes and apartments. None of the agencies use measuring devices. None . have had trouble in court with their citations. ",1IOtWYiN4<"~ ~i . R POLICE -- 1 -. I Attachment: Yes or No I REQUEST FOR COUNCIL ACTION Abandoned Vehicle Ordinance DATE: January 6, 2005 Administration ORIGINATING DEPARTMENT DEPARTMENT APPROVAL AGENDA ITEM Abandoned Vehicle Ordinance - proposed amendment PREVIOUS ACTION The City Council on January 3,2005 reviewed a proposed amendment to the Abandoned Vehicle Ordinance. The Ordinance Amendment was a n~sult of discussions with JR Studniski and his repair . business. -.-- RECOMMENDED COUNCIL ACTION FISCAL IMPACT COMMENTS/RECOMMENDATIONS It was determined today that the Ordinance Amendment proposed is a possible violation of State Statute. Therefore Tom is reviewing the matter and will either be attending the meeting on Thursday, or preparing written correspondence. f , . VRajkowsl5i Hansmaer Ltd. 11 Seventh Avenue North ' ATTORNEys AT LAW P.O. Box 1433 St. Cloud, MN 56302-1433 J allU ary 6, 2005 ~-DRAFf~- 320-251-1055 Ms. Judy Weyrens Toll Free 800·445·9617 St. Joseph Adn1Ìnis1rator/Clerk fax 320-251-5896 25 North College Avenue S1. Joseph, MN 56374 rajhan@rajhan.com Re: Amendment to Junk Car Storage Ordinance 108 Our File No. 24252 WVI'W.rajhan.com Dear Ms. Weyrens: It is my understanding that I was to review the final language of the Amendment to the Junk Car Ordinance as well as the proposed agreement from J. R 8tudinski. Since the meeting, I have been infoIDled that COUncilperson Wick has requested an opinion with respe::t to a MÌ1mesota Appellate case dealing with junkyards. Tills letter will address those issilðs: . APPELLATE COURT DECISION. frank J. RajkoW5ki·· Gordon H. Hansmeier After the meeting, Councilperson Wick asked the question as to whether the Amendment Frederick L. Grunke to the 81. Joseph Junk Car Ordinance goes against state law and whether the City could be exposed to litigation. He raised tbis question based 011 a recent MiImesota Appellate Thomas G. Jovanovich' COurt case, State of Minnesota vs Haase, C4-00-1463, (Minn. App. 2001). Paul A. Rajkowski' This case dealt with the prosecution of a business in Oakdale which was operating a used Kevin F. Gray car dealership in violation of the Oakdale junk car ordinance. In upholding the violation William J. Cashmart on behalf of the City, the court discussed the relationship between state law and local ordinances as it relates to jm1k car ordinances. In tills discussion, the court addressed the Richard W. 50balvarro identi(;al state statute which is the basis of the S1. Joseph J U11k Car Ordinance. Susan M_ Dege LeAnne D. Miller In detel11nning whether an ordinance conflicts with state statutes, the following rules are followed: Sarah L. Smith-Larkirt' Troy A. Po"tz 1. As a general rule, conflicts wInch would render an ordinance invalid would exist only when both the ordinance and the state sta1.llte contain expressed or implied Joseph M. Bromeland terms that are inecollcilable with each other. Gregory J. Haupert 2. More specifically, a conflict exists where the local ordinance pen1lits what the Laurel J. Pugh state statute forbids. - Jason T. Bretto - Frank J. flBjcowski and Richard W. SobalYarro are admitted to practice in North Dakota, Gordon H. Hansmeier in North Dakota and Wisconsin, Paul A Rajkowski and Sarah L SmitlrLarkin in Wisconsin, and William J. Cashman In South Dakota. 'Member of American Board of Trial Advocates. ·Qualified ADR Neutral. v ~ Ms. Judy Weyrens . Page Two January 6. 2005 3. No conflict exists where the local ordinance) although different, is merely additional and complementary to or in aid and f1lrtheral1ce of the state statute, N0l1he11l States Power Co v City of Granite Falls, 463 NW2d 541, 544-45 (Minn. App. 1990). The St. Joseph Junk Car Ordinance is derived from Minn. Stat. § 168B.Ol through 101 which deals withjunk and abandoned cars. The state statute states: "Abandoned motor vehicles constitute a hazard to the health and welfare of the people oftlle state in that such vehicles can harbor noxious diseases, f1lfl1ish shelter and breeding places for vermin) and present physical dangers to the safety and well-being of children and other citizens. Abandoned motor vehicles and other scrap metals also constitute a blight on the landscape of the state and therefore a detriment to the environment. . . It is therefore in the public interest that the present accumulation of abandoned motor vehicles and other scrap metals be eliminated) that future abandonment of motor vehicles and other scrap metals be prevented. . ." Minn. Stat. § 168B.01 The state statute also provides that local governments may adopt ordinances and regulations to . control junk and abandoned vebicles "so long as the ordinances and regulations are not less stringent than theprovisions of section 168B.01 to 168B.101". the subdivision of the Junk Car Ordinance wbich the Council amended was the subdivision which created exceptions to a junk car. The state statute also defines abandoned vehicles and junk cars and creates exceptions. However, it appears that the S1. Joseph ordinance creates greater exceptions to the definition of a junk car than the state statute. This creates a question as to whether the S1. Joseph ordinance is invalid. Under the state statute, the only exceptions to an abandoned vebicle are either a classic car 01' vehicles on the premises of j1111kyards which are defined and licensed accordance to Minn. Stat. § 161.242. Additionally, there are DO exceptions to the definition of a jUl1k vehicle under the state statute, The state statute dealing with jUDkyards provides that a junkyard may not exist or be operated outside an indust1i<:J.l area UJJ.less the area is screened to effectively conceal it from the view of motorists using state highways. The St. Joseph ordinance appears to go beyond the state statutes in that it creates an exception for junk cars which is greater than that allowed by state statutes. Specillcally) the ordinance allows an exception to the definition of an abandoned vehicle or junk car for a motor vehicle repair business. This is not allowed by state statute. Additionally) the amended ordinance now allows - ____"___ _ . _ ..__ _.._.._ . ._J - .0- - -- . - . - - -.-. \ (" -c V . Ms. Judy Weyrens Page Three January 6,2005 up to more thalI four unlicensed or junk velúcles to be not screened from public view for a repair business wlúch was in operation on or before J anualY, 2005. Again, this is most likely contrary to the prohibitions 'of the state statutes. Pursuant to the state statutes, it is cleal' that junk cars are only allowed injunkyards. Since J,R. 's business is a repair shop, it is questionable whether state law would penuit junk vehicles on this location. It is my opinion that the amended ordinance is most likely defective because it permits what the state statute forbids. Specifically, it allows jmùc Cal'S to be exposed to a public view and it creates an exception for the storage of junk vehicles at motor vébicle repair shops. The ordinance could be corrected if it would clearly state that any junk vebicles be screened in a manJ1ér which would conceal them from the public and place a limitation on the number of vehicles. CONTRACT WITH J.R. STUDINSKI . I have reviewed the proposed contráct with J.R. Studinski. It is ambiguous in terms of what type of screening alId the placement of the screelÚ11g. It states that J.R. agrees to "construct a eight (8) foot fence upon my place of business. The fence will be constructed on the Northeast comer of the building, and extend eight (8) feet to the north." It is unclear whether the location and length of an eight foot fence will screen the jU11Ie vehicles and other related iron from the public. Ordinarily such screening would form a perimeter around the location of the vehicles so adjoining property owners would not have to view the junk. NONCONFORMING USE Another concem with respect to the amended ordinance has to do with the nonconfonmng use of J.R. Studinslá's business. TI1Ïs place of business was a nonconfonuing use since 1976. I believe tbis was before J.R. purchased the property. The purpose of a nonconfolming use is to eventually eliminate the nonconfonning use over a period of time. It is a technique used to balance the interest ofthe public good versus the interest of the landowner who has used the prope1ty in a certain way in the past. A nonconforming uSe may not be changed fÌorn one type of use to alIother tyPe. For instance, an auto repair business is not ajunkyard. Accordingly, J.R. has no right to change the business ftom an auto repair business to a business wlúch stores junk cars since the storage ofjuDk cars is a different type of use. CONCLUSION It is likely that the amended Junk Car Ordinance is contrary to Mumesota law. It is difficult to . detelIDÎne whether this would place the City at risk of a lawsuit rrom the state. Nevertheless, it v ¡ Ms. JudyWeyrens . Page Four January 6, 2005 certainly makes the statute much more difficult to enforce in the future with respect to other people since the statute can be attacked. It possibly could create liability all the pali of the City from other property owners. However, the answer to that question is somewhat complex and would take a substalltial amount of research because it raises the issue of governmental immunity wlúch is very complex. Nevertheless, the ordinance amendment increases the likelihood of such a suit iTom adjoining propelty owners. If there are any questions, please advise. Sincerely, RAJKOWSKI HANS MEIER LTD. Bv ~ Thomas G. Jovanovich TGJlbaz . . r , : . Subd.2 On the premise of a junkyard or a motor vehicle repair business when . such junkyard or business is maintained and/or licensed in accordance with Minnesota Law, City Ordinances, Zoning regulations or any vehicle repair business. In the case of a repair business, each motor vehicle must be under repair and removed within 12 months. The business owner must provide proof that the vehicle is being repaired. Such proof will include a parts order form or verification of application for title. The vehicles must be maintained or stored in an area screened from public view by an appropriate fence. Any repair business in operation on or before January 2005 may not have more than four (4) unlicensed or junk vehicles at any one time, unscreened from public view. Note: Bold indicates the additional language approved by the Council. . . ,f .. . CHAPTER X - NUISANCES & OFFENSES ORDINANCE 108 JUNK CAR STORAGE........................................................................1 08-1 Section 108.01: PURPOSE.............................................................................................1 08-1 Section 108.02: DEFINITIONS......................................................................................1 08-1 Section 108.03: EXCEPTIONS......................................................................................1 08-2 Section 108.04: NUISANCE..........................................................................................1 08-2 Section 108.05: PUBLIC PROPERTY...........................................................................1 08-2 Section 108.06: PRIVATE . PROPERTY........................................................................1 08-3 Section 108.07: REMOVAL PROCEDURE..................................................................1 08-3 Section 108.08: IMPOUNDMENT................................................................................1 08-3 Section 108.09: PENALTY............................................................................................1 08-3 I08-0CHAPTER X - NUISANCES & OFFENSES ORDINANCE 108 JUNK CAR STORAGE Section 108.01: PURPOSE. Abandoned or junk vehicles constitute: Subd. 1: A hazard to the health and welfare of the people of the City in that they can harbor noxious disease, furnish shelter and breeding places for vermin, and present physical dangers to the safety and well-being of children and other citizens. Subd. 2: A blight on the landscape of the City and are detrimental to the . environment. , , . . Subd. 3: A waste of a valuable source of useful metal. It is in the public interest that the present accumulation of abandoned or junk motor vehicles within the City be eliminated and that future abandonment be prevented. Section 108.02: DEFINITIONS. The terms used in this Ordinance shall have the meanings given them in this Section. Subd. 1: Abandoned Vehicle. Shall mean a motor vehicle that: a) Lacks vital component parts or is in an inoperable condition so it has no substantial potential for further use consistent with its usual functions; and b) Has remained for a period of more than 48 hours on public property illegally (or more than four hours if posted); or c) Has remained on private property for more than 24 hours (or immediately, if posted) without the consent of the Person in control of the property. Subd. 2: Junk Vehicle. Shall mean a motor vehicle that: a) Is extensively damaged, with the damage including such things as tires or broken or missing wheels, motor, drive train or transmission, so as to render the vehicle inoperable; or b) Has not had a valid, current registration plate, or has not been properly . licensed for operation within the State of Minnesota for a period of thirty (30) consecutive days or greater. Subd. 3: Motor Vehicle or Vehicle: Has the meaning in Minn. Stat. §169.01, as amended. Subd. 4: Private Property. Shall mean any real property within the City which is privately owned and which is not public property as defined in this Section. Subd. 5: Public Property. Shall mean any street, alley or highway which shall include the entire width between the boundary lines of every way publicly maintained for vehicular travel, and also means any other publicly owned property or facility. Subd. 6: Unauthorized Vehicle. Shall mean a vehicle that is subject to removal and impound under the law. Subd. 7: Vital Component. Shall mean a part of a motor vehicle or appliance essential to its mechanical functioning. Section 108.03: EXCEPTIONS. A vehicle shall not be an abandoned, junk or unauthorized vehicle when kept: . Subd. 1: In an enclosed garage or storage building. .1 . /~~/~_~_c~.,c_~.<.,~,. x··',Cc..,.,···,c,.- ". ,_.... . · // Subd. 2: Ou the premises of a junkyard or~otor vehicle rep~IfuSineSS When' / such junkyard or business is maintained and r licensed in acc rdance with / Minnesota law.City Ordinances,.zoning regulationslQ.r any vehicle repair ~ / b 'nes In the case of a repair busil1ess, each motor vehicle must ~J '\ I -.'f' have the intention of béing worked-on and maintained or stored i . ~ ! ! an area screened rrom public view by a~ appropria:e fence! ~ny repair busi~ess ~~,,~J';';\è, í \ may not have more th~n ~our (4) ~hcensed or Jun.k.vehl~l~~ a~ an~o~e tll~e, . "'" '1 ....~ . . unscreened from pubhcvlew..lflJ.J.:f.Lr;-:"V"-~A-Æ, _ .{:'I'}l.;t,:·~·l.J..Æ.~'i"l'· . . . '. ~. ...... -'-~-' . ·-·~:;~"_·_--_·~---~-_·_··__·_··'···~:···..··L;:jf~- _ci~-¡;""i),~:""~~-,' , Subd. 3: In an appropriate storage place or depository maintamed in a lawfu1' \.1 '-.j place and manner by the City or authorized by the City. Subd. 4: A classic or pioneer car, as defined in Minn. Stat. §168.10, as amended, that is in the process of restoration. Restoration of vehicles under this provision shall be completed within 30 days. Section 108.04: NUISANCE. The presence of any junk, abandoned or unauthorized vehicle on private or public property is a public nuisance which may be abated under this Ordinance. Section 108.05: PUBLIC PROPERTY. No Person shall park, store, leave or permit the parking, storing or leaving of any abandoned, junk or unauthorized vehicle or parts of a · vehicle, whether attended or not, upon any public property within the City. Subd. 1: A Police Officer may impound any abandoned junk or unauthorized vehicle on public property within the City, or that causes an obstruction and hazard. The Police Department or City may remove it under State law after giving proper notice under this Ordinance. Section 108.06: PRIVATE PROPERTY. No Person owning, in charge of, or in control of any real property within the City, whether as owner, tenant, occupant, lessee, or otherwise, shall allow any abandoned or junk motor vehicle to remain on such property longer than ninety-six (96) hours. Section 108.07: REMOVAL PROCEDURE. Subd. 1: Notice to Remove. Whenever it comes to the attention of the Police Department or other City officials that any Person has any abandoned, junk or unauthorized vehicle, the City or Police Department shall serve a notice in writing upon the Person requesting the removal of the nuisance in the time specified in this Ordinance. Subd. 2: Responsibility for Removal. Upon proper notice, an owner of the abandoned, junk or unauthorized vehicle and the owner or occupant of the private · property on which the same is located, shall be jointly and severally responsible for its removal. , · · Subd. 3: Notice Procedure. The Police Department shall give notice to the owner or occupant of the private property where it is located by sending a copy of the notice by certified mail to the owner or occupant of the private property at the Person's last known address. Subd. 4: Content of Notice. The notice shall contain the request for removal within ten (10) days after the mailing of such notice and the notice shall advise that failure to comply with the notice to remove shall be a violation of this Ordinance. Section 108.08: IMPOUNDMENT. If the nuisance is not abated under this Ordinance after proper notice, the City or the Police Department may impound the vehicle according to State law. Section 108.09: PENALTY. Any Person violating this Ordinance shall be guilty of a misdemeanor. Each day the violation continues unabated shall constitute a separate and distinct violation. Updated 6/2003 · · · .- · I, lR. Studinski agree to construct an eight (8) foot fence upon my place of business. The fence will be constructed on the Northeast corner of my building, and extend eight (8) feet to the north. I agree to have the fence in place upon the thaw of Spring, and no latter than June 1 st, 2005. The intention for this fence is to screen rrom view all tires, and miscellaneous parts associated with my business operation. In accordance with this agreement I agree to open an escrow account upon my checking for the city of S1. Joseph in the amount of$250.00. Upon meeting said conditions, the escrow account will close on June 15th, 2005. / / --- Signed, lR. Studinski Date · · · · ÿ · I, JR. Studinski agree to construct an eight (8) foot fence upon my place of business. The fence will be constructed on the Northeast corner of my building, and extend eight (8) feet to the north. I agree to have the fence in place upon the thaw of Spring, and no latter than June 1 st, 2005. The intention for this fence is to screen fTom view all tires, and miscellaneous parts associated with my business operation. / / --- Signed, JR. Studinski Date · - - ,. I Attachment: Yes or No I REQUEST FOR COUNCIL ACTION 2005 Utility Improvements DATE: January 6, 2005 Engineering ORIGINATING DEPARTMENT DEPARTMENT APPROVAL AGENDA ITEM Improvement Schedule PREVIOUS ACTION The City Council in 2004 ordered the improvements for the 295th/103rd Avenue area and 95th A venue area. The Council has also authorized the bid letting for the same with bids due on January 11,2005. The City Engineer will review the bids and prepare an assessment roll for the Council on January 20, 2005. At this meeting the Council will not be requested to take any action. Rather the Council will wait lit until the Assessment Hearing. If the assessment rolls are adopted, the Council will consider award of the --- contract. The Council had considerable discussion on the process that would be used for the improvements and decided it was in the best interest of the City to conduct the assessment hearing before awarding the bids. This method would allow the City to review the project cost before the construction and determine if the project is feasible. If the project cost is to high the improvements will be reconsidered. RECOMMENDED COUNCIL ACTION Adopt Resolution 2005-01 and 2005-02, setting the public hearings for the 2005 Improvement Projects FISCAL IMPACT COMMENTSIRECOMMENDATIONS - CITY OF ST. JOSEPH . CC RESOLUTION 2005-01 RESOLUTION FOR HEARING ON PROPOSED ASSESSMENT 295th Street/Hill Street Improvements WHEREAS, by a resolution passed by the council on 6th day of January, 2005, the City Engineer was directed to prepare a proposed assessment of the cost of improving 295th and 1 03rd Avenue by constructing water, sewer and street improvements. AND WHEREAS, the City Administrator has notified the council that such proposed assessment will be completed and filed in his/her office for public inspection, NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ST. JOSEPH, MINNESOTA: 1. A hearing shall be held on 8th day of February,2005 in the city hall at 7:00 PM to pass upon such proposed assessment and at such time and place all persons owning property affected by such improvement will be given an opportunity to be heard with reference to such assessment. 2. The City Administrator is hereby directed to cause a notice of the hearing on the proposed assessment to be published once in the official newspaper at least two weeks prior to the hearing, and he/she shall state in the notice the total cost of . the improvement. He/she also cause mailed notice to be given to the owner of each parcel described in the assessment roll not less than two weeks prior to the hearings. 3. The owner of any property so assessed may, at any time prior to certification of the assessment to the county auditor, pay the whole of the assessment on such property, with interest accrued to the date of payment, to the City Administrator paid within 30 days from the adoption of the assessment. He/she may at any time thereafter, pay to the City Administrator the entire amount of the assessment remaining unpaid, with interest accrued to December 31 of the year in which such payment is made. Such payment must be made before November 15 or interest will be charged through December 31 of the succeeding year. Adopted by the council this 6th day of January 2005. Richard Carlbom, Mayor Judy Weyrens, Administrator - - . CITY OF ST. JOSEPH CC RESOLUTION 2005-02 RESOLUTION FOR HEARING ON PROPOSED ASSESSMENT 95th/7th AVenue Improvements WHEREAS, by a resolution passed by the council on 6th day of January, 2005, the City Engineer was directed to prepare a proposed assessment of the cost of improving the island annexed area on 95th / ih Avenue SE by constructing water, sewer, street and curb and gutter improvements. AND WHEREAS, the City Administrator has notified the council that such proposed assessment will be completed and filed in his/her office for public inspection, NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ST. JOSEPH, MINNESOTA: 1. A hearing shall be held on 16th day of February,2005 in the city hall at 7:00 PM to pass upon such proposed assessment and at such time and place all persons owning property affected by such improvement will be given an opportunity to be heard with reference to such assessment. 2. The City Administrator is hereby directed to cause a notice of the hearing on the - proposed assessment to be published once in the official newspaper at least two .......... weeks prior to the hearing, and he/she shall state in the notice the total cost of the improvement. He/she also cause mailed notice to be given to the owner of each parcel described in the assessment roll not less than two weeks prior to the hearings. 3. The owner of any property so assessed may, at any time prior to certification of the assessment to the county auditor, pay the whole of the assessment on such property, with interest accrued to the date of payment, to the City Administrator paid within 30 days from the adoption of the assessment. He/she may at any time thereafter, pay to the City Administrator the entire amount of the assessment remaining unpaid, with interest accrued to December 31 of the year in which such payment is made. Such payment must be made before November 15 or interest will be charged through December 31 of the succeeding year. Adopted by the council this 6th day of January 2005. Richard Carlbom, Mayor . Judy Weyrens, Administrator Page 1 of: Judy Weyrens From: "Scott Mareck" <mareck@stcloudapo.org> . To: "Bettendorf, Joe" <jbettendorf@sehinc.com>; "Dumont, Claudia" <claudia.dumont@dot.state.mn.us>; "Sakry, Mark" <marksakry@astound.net>; "Anderson, Mitch" <mitch.anderson@co.stearns.mn.us>; "Foss, Steve" <sfoss@ci.stcloud.mn.us>; "Glaesman, Matt" <Matt.Glaesman@ci.stcloud.mn.us>; "Schluenz, Bill" <wschluenz@waitepark.org>; "Ringsmuth, Paul" <pringsmuth@mn.astound.net>; "Wotzka, Terry" <twotzka@sehinc.com>; "Johnson, Shaunna" <sjohnson@waitepark.org>; "Bechtold, Joe" <bechtold43@aol.com>; "Weyrens, Judy" <jweyrens@cityofstjoseph.com>; "Schaefer, Carla" <cschaefer@waitepark.org>; "Hansen, Bill" <hansen@stcloudapo.org> Sent: Monday, December 20,2004 1 :24 PM Attach: Southwest Beltway Corridors.ppt Subject: SW Beltway Corridor Study Estimates Southwest Beltway Committee Members: As we discussed, outlined below are preliminary estimates for consultant services to conduct required State/federal environmental work for the "Westside North/South Corridor" between Waite Park and St. Joseph, and also for the 33rd Street Corridor between Stearns CR 137 and Stearns CSAH 75 (see attached map). Please note that cost estimates have been increased slightly from those discussed at our last Committee meeting to reflect an Environmental Impact Statement (EIS) process for both studies, instead of an Environmental Assessment (EA) process, FHWA has indicated that an EIS path will be necessary for both studies since both corridors will ultimately have 2 or more miles of new 4 lane alignment. This is the State mandatory threshold for an EIS. "Westside North/South Corridor": Stearns CR 137 to Stearns CSAH 4 Primary Jurisdictions Involved: City of Waite Park, City of St. Joseph, Stearns County e · EIS Scoping Estimate: $200,000 · EIS Estimate: $550,000 · Official Map Estimate: $100,000 · Total Estimate: $850,000 +/- Note: The EIS Scoping process will likely require that multiple alternatives be forwarded into the EIS. If this is the case, official mapping should only occur after the EIS process is completed and a preferred alternativf is selected. 33rdStreet Corridor: Stearns CR 137 to Stearns CSAH 75 Primary Jurisdictions Involved: Stearns County. City of St. Cloud, City of Waite Park · EIS Scoping Estimate: $200,000 · EIS Estimate: $600,000 · Official Map Estimate: $50,000 · Total Estimate: $850,000 +/- Note: A "pre-NEPA" scoping was completed for this corridor in 2001. This scoping will require updating an, processing through the formal EIS Scoping process prior to initiating the EIS. . 12/20/200 Page 2 of2 Jdgetill9-0ptions '. have previously discussed, the following are potential options to finance the required studies within - corridor: · APO Federal Funding Through the District 3 Area Transportation Partnership (A TP): open competition with other Metro Area road submittals; the next APO solicitation is for FY 2009/2010 programming in fall of 2005, with funding awarded in July, 2006. · High Priority Project (HPP) Funding Within the New Six Year Federal Highway Bill: APO has a $4.5 million request for studies and right-of-way prioritized as #2 on the Metro Area HPP list, this request is unfunded in all current drafts of the Highway Bill. · City and County Funds (bonding, property taxes, sales tax, etc.) - - lease contact me with any questions you may have regarding this information. As soon as all involved ~isdictions have discussed their willingness/ability to assist in financing of these studies, I will arrange for lother Committee meeting. If desired, the APO can offer assistance in negotiating an equitable local cost haring split for each study. ~ott M. Mareck, AICP ransportation Planning Manager ~. Cloud Area Planning Organization )40 County Road 4 t. Cloud, Minnesota 56303-0643 I-¡one: 320.252.7568 1320.252.6557 - ,ail: mareck@stcloudapo.org - - 12/20/2004