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2007-06-25 SID 494 Minutes RECEIVED MINUTES OF MEETING OF SANITARY AND IMPROVEMENT DISTRICT NO. 494 OF 07 JUL 25 AM 8: 4b DOUGLAS COUNTY, NEBRASKA CITY CLERK A meeting of the Board of Trustees of Sanitary and Improvement District o A$1c i of Douglas County, Nebraska, was convened in open and public session at 3:00 p.m. on June 25, 2007, at 2120 South 72nd Street, Suite 1200, Omaha, Nebraska. Present were: Trustees Dan J. McCarty, Gary L. Shipley, Dennis Kimberlin and Steven G. Reeder; Absent:Clerk/Trustee John A. Rice. Also present were Engineer Doug Dreessen, Attorney Robert J. Huck, property owners Dick Wilson, Mike Carroll and Janice Conkley, as well as Steve Finn. Notice of the meeting was given in advance thereof by publication in The Daily Record, Omaha, Nebraska, on June 18, 2007, a copy of the Proof of Publication being attached to these minutes. Notice of this meeting was sent to the Omaha City Clerk, 1819 Farnam Street, Omaha, Nebraska, not less than seven (7) days prior to the date of this meeting. Notice of this meeting was simultaneously given to all members of the Board of Trustees, and a copy of their Acknowledgment of Receipt of Notice is attached to these minutes. Availability of the agenda was communicated in the published notice and in the notice to the Trustees of this meeting. All proceedings of the Board were taken while the convened meeting was open to the attendance of the public. The undersigned Acting Clerk hereby certifies that these minutes were written and available for public inspection within ten (10)working days after the date of said meeting. After calling the meeting to order and completion of roll call, the Chairman publicly stated to all in attendance that a current copy of the Nebraska Open Meetings Act was available for review and indicated the location of such copy in the room where the meeting was being held. In the absence of Clerk John A. Rice, Trustee Dennis Kimberlin was appointed Acting Clerk for this meeting. The Chairman directed the Board's attention to Agenda Item No. 3 and reported that it would be appropriate to ratify a correction which has been made to the February 22, 2007 minutes. The minutes originally listed Warrants Nos. 718 through 738 as being issued in the amount of $5,000.00 each, for a total of $125,000. Although the total of $125,000 is correct, the minutes should have listed Warrants Nos. 718 through 721 as $10,000.00 each, and Nos. 722 through 738 as$5,000.00 each,for a total of$125,000.00. Thereupon a motion was duly moved and seconded that the correction of the February 22, 2007 minutes to reflect Warrants Nos. 718 through 721 being issued in the amount of $10,000.00 each rather than $5,000.00 each, be ratified, confirmed and approved. On roll call on said resolution,the following Trustees voted aye: Dan J. McCarty, Dennis Kimberlin, Gary L. Shipley and Steven G. Reeder; voting nay thereon were the following Trustees: none. The Chairman then declared said resolution to be duly carried and adopted. The Chairman directed the Board's attention to Agenda Item No. 4, approval of the minutes of the meeting of the Board held on March 14, 2007. A motion was made and seconded that the minutes for the meeting of the Board held on March 14, 2007, be Minutes of Meeting of Board of Trustees June 25, 2007 SID No. 494 of Douglas County, Nebraska Page 2 approved and accepted. On roll call on said resolution, the following Trustees voted aye: Dan J. McCarty, Dennis Kimberlin, Steven G. Reeder and Gary L. Shipley; voting nay thereon were the following Trustees: None. The Chairman then declared said resolution to be duly carried and adopted. The Chairman directed the Board's attention to Agenda Item No. 5 for the Engineer's Report. a. Engineer Dreessen stated that the gas project for Phase I is substantially completed. b. Resolution of the Pat Earl issues is still pending. c. The Board reviewed correspondence regarding the need for MUD to adjust a hydrant at 135th Avenue and lake Street and lower the existing hydrant in Corby Street in Phase I at a cost of$12,500 payable to MUD. Action on this request for payment was delayed pending resolution of some ownership issues. The Chairman directed the Board's attention to Agenda Item No. 6, Levy of Special Assessments. The Board reviewed the status of this matter and the meeting held on June 11, 2007, on this subject which was adjourned to this meeting to finish the levy process. At that meeting, Attorney Huck had reported that a simultaneous notice of the hearing on the proposed special assessments for the various projects outlined below on each separate piece of property benefitted thereby in the District had been published as authorized by the Board at its meeting held on March 14, 2007(Proof of Publication of said Notice being attached to the June 11, 2007 minutes); the Chairman had certified that on May 21, 2007, the first publication date of said notice, the County tax rolls did not reveal any owners of property within the assessment district who were non-residents of this county other than those to whom notice was mailed by Certified Mail, return receipt requested, and that handbills of said notice had been posted along the lines of said improvements in the District, and that on May 24, 2007, a copy of the notice had been mailed to each party appearing to have a legal interest in the proceedings (including the City of Omaha and D.A. Davidson & Co. by Certified Mail) and that the required affidavit of such mailing, as well as a Supplemental Affidavit relating to re-mailed notices, had been duly executed and filed (said certificate of posting and affidavits of mailing said notice being attached to the June 11, 2007 minutes). The Chairman also reported at the June 11th meeting that subsequent to the meeting of March 14, 2007, it had been necessary to update the statement of costs and proposed special assessments schedules to update interest and to make other minor adjustments due to a recent replat, and that the Board had approved the revisions at the June 11th meeting. In addition, the Board had addressed protests received in connection with the proposed special assessments, and much discussion had taken place regarding the Minutes of Meeting of Board of Trustees June 25, 2007 SID No. 494 of Douglas County, Nebraska Page 3 method of assessment, including assessing on the basis of front footage versus square footage. Following the close of the public hearing on June 11, 2007, the protest of Mr. Robert Mabrey was resolved in Mr. Mabrey's favor. The Board then took up the protests of Gerald Mines, Corky Buehl and Julie Foy; a motion was made to deny the protests, at which time one of the Board members exited the meeting, leaving the Board without a quorum. The Chairman was then required to adjourn and continue the consideration of the proposed special assessments, along with other matters scheduled for the June 11th meeting. The protests of Messrs. Buell and Mines related to the method of determining special benefits; i.e., front footage rather than total square footage was again discussed. Ms. Foy's correspondence questioning the assessment being levied against two lots when only one of them has a house on it was also addressed. The Chairman stated that it would be appropriate at this time to make decisions on the protests of Ms. Foy and Messrs. Mines and Buehl filed in connection with special assessments. Thereupon, the following resolution was duly moved and seconded,to-wit: BE IT RESOLVED by the Board of Trustees of Sanitary and Improvement District No. 494 of Douglas County, Nebraska, that the protests filed by Charles (Corky) Buell, Julie Foy, and Jerry Mines be and hereby are denied. On roll call vote thereon, the following Trustees voted aye: Dan J. McCarty, Steven G. Reeder and Dennis Kimberlin; voting nay thereon was the following Trustee: Gary L. Shipley. The Chairman then declared said resolution to be duly carried and adopted by majority vote. The Board then reviewed the engineer's complete Statements of All Costs and all said improvements, together with a plat of the property and a schedule of the amount proposed to be assessed against each separate piece of property in the District. The total costs and special assessments are as follows: Project Name General Obligation Special Assessment Total Sanitary Sewer, Storm Sewer& Paving Section I: Sanitary Sewer $0 $360,917.50 $360,917.50 Storm Sewer $96,397.67 $0 $96,397.67 Paving $144,946.18 $535,140.40 $695,425.02 Water Section I $144,946.18 $1,532,994.93 $1,677,941.11 TOTAL: $401,628.47 $2,429,052.83 $2,830,681.30 Minutes of Meeting of Board of Trustees June 25, 2007 SID No. 494 of Douglas County, Nebraska Page 4 After discussion, the following resolution was duly moved and seconded: WHEREAS, complete statements of all costs of certain public improvements and work incidental thereto constructed in Green Meadows, and in Mabrey Addition, M. and E. Addition, Walker's Run, and Champion's View, subdivisions in Sanitary and Improvement District No. 494 of Douglas County, Nebraska in connection with the hereinafter identified improvement projects, have been prepared and updated by the engineers for the District, together with plats of the property in the District and schedules of the amounts proposed to be assessed against each separate lot or tract in said subdivision in the District, all of which cost statements, plats and schedules have been duly filed with the Clerk of the Board of Trustees of said District, to-wit: Sanitary Sewer Section I; Storm Sewer Section I; Paving Section I; and Water Section I; and WHEREAS, notice that said updated statements of costs, plats and schedules were on file in said Clerk's office and that all objections thereto, or to prior proceedings on account of errors, irregularities or inequalities, unless made in writing and filed with the Clerk of said District within twenty days after May 21, 2007 (the date of first publication of said Notice) should be deemed to have been waived, was given by publication thereof in The Daily Record of Omaha, Nebraska, on May 21, May 28, and June 4, 2007, and by mailing true copies of said notice to each property owner in said subdivision in the District subject to special assessments (which notice included the amount proposed to be assessed against the owner's property for the improvements) and also by posting handbills of said notice along the line of the work in said District; notice of said hearing together with copies of said statements of costs, plats and schedules of special assessments were also given by Certified Mail to the Omaha City Clerk and to the District's fiscal agent, D.A. Davidson & Co., all in the manner and within the time limits provided by law; and WHEREAS, some objections to the proposed assessments were filed with the Clerk of the District within twenty days after the first publication of said notice by Charles Buell, Robert Mabrey, Jerry Mines and Julie Foy; and WHEREAS, no objections other than those set forth in the preceding paragraph to the proposed assessments or to any proceedings of the District were filed with the Clerk of the District within twenty days after the first publication of said notice; and WHEREAS, the public hearing was held as specified in the notice on June 11, 2007, and objections were heard at such meeting. Following the close of the public hearing on the proposed assessments on June 11, 2007, the meeting was adjourned to June 25, 2007; and Minutes of Meeting of Board of Trustees June 25, 2007 SID No. 494 of Douglas County, Nebraska Page 5 WHEREAS,the Board, after due consideration and discussion of the matter, including the objections filed and oral objections made, has approved the updated statements of costs and schedules except that the objection to the proposed assessment against Lot 1, Mabrey Addition, is allowed in accordance with the prior agreement between the District and the owner of that lot. NOW, THEREFORE, BE IT RESOLVED that the Board of Trustees of Sanitary and Improvement District No. 494 of Douglas County, Nebraska, find and determine: 1. That the lots or parcels of land in said subdivisions within said District, identified on the schedules attached hereto, were specially benefitted in the amounts shown opposite each lot or parcel number on said schedule, and the amounts of said benefits do not exceed the cost of such portion of the construction of said improvements as are local improvements, and the amount set opposite each lot or parcel on said schedule is an equitable apportionment of the cost of the local improvements between the several lots or parcels in proportion to the special benefits received by each lot or parcel and does not exceed said special benefits. 2. That each of said lots or parcels of land identified on said attached schedule shall be assessed in the amounts shown opposite each lot or parcel number on said schedules of special assessments. 3. That the special assessments shall become due fifty days from date hereof and may be paid within that time without interest, but if not so paid they shall bear interest from June 25, 2007, and they shall become delinquent in ten equal annual installments. The first installment shall become delinquent one year after date of levy and one installment shall become delinquent on the same date each year thereafter for nine years, and shall bear interest from and after the date of levy at the rate of seven and one-half percent (7.5%) per annum until delinquent, and then at nine and one-half percent (9.5%) per annum thereafter until fully paid. BE IT FURTHER RESOLVED that said special assessments be and hereby are equalized and apportioned between the several lots or parcels of ground with reference to the benefits resulting from the construction of said improvements and said special assessments are hereby levied upon said several lots or parcels of ground in accordance with the attached schedules of special assessments. BE IT FURTHER RESOLVED that the Clerk of the District be and hereby is authorized and directed to certify to the County Clerk of Douglas County, Nebraska, this levy of special assessments upon the lots or parcels of land identified on the schedules attached hereto in the amounts shown opposite Minutes of Meeting of Board of Trustees June 25, 2007 SID No. 494 of Douglas County, Nebraska Page 6 each lot number on said schedules, in order that said special assessments may be collected in the same manner as general taxes. On roll call vote thereon, the following Trustees voted aye: Dan J. McCarty, Steven G. Reeder and Dennis Kimberlin; voting nay thereon was the following Trustee: Gary L. Shipley. The Chairman then declared said resolution to be duly carried and adopted by majority vote. The Chairman directed the Board's attention to Agenda Item No. 7 regarding a proposed Interlocal Cooperation Agreement between the District and the City of Omaha. The proposed agreement was reviewed and discussed at length. Thereupon,the following resolution was duly moved and seconded, to-wit: BE IT RESOLVED by the Board of Trustees of Sanitary and Improvement District No. 494 of Douglas County, Nebraska, that the proposed Interlocal Cooperation Agreement between the City of Omaha and the District be and hereby is approved, • in substantially the form as presented to this meeting, and that the Chairman and Acting Clerk of the District are hereby authorized and directed, on behalf of the District, to execute the proposed Interlocal Cooperation Agreement with the City of Omaha. FURTHER RESOLVED, that a copy of said Interlocal Cooperation Agreement be made a part of the records of the District by attaching same to these minutes. On roll call on said resolution, the following Trustees voted aye: Dan J. McCarty, Dennis Kimberlin, Gary L. Shipley and Steven G. Reeder; voting nay thereon were the following Trustees: none. The Chairman then declared said resolution to be duly carried and adopted. The Chairman directed the Board's attention to Agenda Item No. 8, and Mr. Huck reviewed briefly with the Board the proposed renewal of the District's general liability,errors and omissions, and umbrella insurance coverage as put together by the Greco Insurance Agency. The premium for the renewal of the coverage is $3,454.00. After further discussion, the following resolution was moved and seconded, to-wit: RESOLVED, by the Board of Trustees of Sanitary and Improvement District No. 494 of Douglas County, Nebraska, that the policies of general liability, umbrella and errors and omissions insurance for the period 4/29/07 to 4/29/08 be and hereby is approved; and further, that the Clerk is directed to retain said policy for the District's records. Minutes of Meeting of Board of Trustees June 25, 2007 SID No. 494 of Douglas County, Nebraska Page 7 On roll call on said resolution, the following Trustees voted aye: Dan J. McCarty, Dennis Kimberlin, Gary L. Shipley and Steven G. Reeder; voting nay thereon were the following Trustees: none. The Chairman then declared said resolution to be duly carried and adopted. The Chairman directed the Board's attention to Agenda Item No. 9, Payment of Bills of the District, and presented for the Board's consideration the following bills, statements and invoices. After thorough review of same and discussion thereon, the following resolutions were duly moved and seconded, to-wit: RESOLVED, by the Board of Trustees of Sanitary and Improvement District No. 494 of Douglas County, Nebraska, that the Chairman and Clerk be and they hereby are authorized and directed to execute and deliver Warrants Nos. 747 through 761 of the District, dated the date of this meeting, to the following payees and in the following amounts, said Warrants Nos. 747 through 756 to be drawn on the General Fund account of the District and to bear interest at the rate of seven percent(7%) per annum,and Warrants Nos. 757 through 761 to be drawn on the Construction Fund account of the District and to bear interest at the rate of seven percent (7%) per annum (interest to be payable on February 10`h of each year, as to the Construction Fund Warrants only), and to be redeemed no later than the dates noted below, subject to extension of said maturity date (for Construction Fund Warrants only), by order of the District Court of Douglas County, Nebraska, after notice is given as required by law, to- wit: GENERAL FUND (Due June 25, 2010) 1. Warrant No. 747 in the sum of$5,000.00 and Warrant No. 748 in the sum of $3,980.43 (total $8,980.43) payable to Commercial Seeding Contractors in payment of Invoice Nos. 3296, 3937, 4036, 4086 and 4439 for erosion control maintenance. 2. Warrant No. 749 in the sum of $4,373.90 payable to Commercial Seeding Contractors in payment of Invoice Nos. 4346 and 4372 re gas main installation and Invoice No. 4504 for erosion control in connection with gas main and power installation. 3. Warrant No. 750 in the sum of $3,454.00 payable to Greco Enterprises Inc. in payment of Invoice Minutes of Meeting of Board of Trustees June 25, 2007 SID No. 494 of Douglas County, Nebraska Page 8 Nos. 39829, 40116 and 39828 for errors & omissions, umbrella, and general liability insurance premiums. 4. Warrant Nos. 751 and 752 in the sum of $5,000.00 each and Warrant No. 753 in the sum of $2,541.06 (total $12,541.06) payable to Croker, Huck, Kasher, DeWitt, Anderson & Gonderinger, L.L.C. in payment of legal services and costs per statements dated 4/23/07, 5/23/07 and 6/25/07, Account No. 473-000. 5. Warrant No. 754 in the sum of $5,000.00 and Warrant No. 755 in the sum of$787.84(total$5,787.84)payable to Thompson, Dreessen & Dorner Inc. in payment of Invoice No. 81197 for miscellaneous services. 6. Warrant No. 756 in the sum of $1,756.86 payable to D.A. Davidson & Co. in payment of 5% placement fee for Warrant Nos. 747 through 755. CONSTRUCTION FUND (Due June 25, 2012).=- 7. Warrant No. 757 in the sum of $500.00 payable to Nebraska Land Title & Abstract in payment of Invoice No. 27199 re owner search for special assessments notices. 8. Warrant No. 758 in the sum of$124.64 payable to The Daily Record in payment of Invoice No. 70307 re special assessments. 9. Warrant No. 759 in the sum of$5,000.00 and Warrant No. 760 in the sum of$154.28(total$5,154.28)payable to Thompson Dreessen & Dorner Inc. in payment of Invoice No. 81198 re Gas & Power Section I. 10. Warrant No. 761 in the sum of$288.94 payable to D.A. Davidson & Co. in payment of 5% placement fee for Warrant Nos. 757 through 760. BE IT FURTHER RESOLVED by the Board of Trustees of Sanitary and Improvement District No. 494 of Douglas County, Nebraska, that both they and the District hereby find and determine and covenant, and warrant and agree that (a) the facilities for which the above Warrants are issued are for essential governmental functions and are designed to serve Minutes of Meeting of Board of Trustees June 25, 2007 SID No. 494 of Douglas County, Nebraska Page 9 members of the general public on an equal basis; (b)there are no persons with rights to use said facilities other than as members of the general public; (c)ownership and operation of said facilities is with the District or another political subdivision; (d) none of the proceeds of the Warrants will be loaned to any person and to the extent that special assessments have been or are to be levied for any said facilities, such special assessments have been or are to be levied under Nebraska law as a matter of general application to all property specially benefitted by such facilities in the District; (e)the development of the land in the District is for residential or commercial use; (f) the development of the land in the District for sale and occupation by the general public is proceeding with reasonable speed and (g) the District hereby authorizes and directs the Chairman or Clerk to file, when due, an information reporting form pursuant to Section 149(e)of the Internal Revenue Code of 1986 pertaining to the above Warrants. BE IT FURTHER RESOLVED by the Board of Trustees of Sanitary and Improvement District No. 494 of Douglas County, Nebraska, that the District hereby covenants, warrants and agrees as follows: (a) to take all actions necessary under current federal law to maintain the tax exempt status (as to taxpayers generally)of interest on the above Warrants;and (b) to the extent that it may lawfully do so, the District hereby designates the above Warrants as its "qualified tax exempt obligations" under Section 265(b)(3)(B)(i)(III) of the Internal Revenue Code of 1986, as amended, and covenants and warrants that the District does not reasonably expect to issue warrants or bonds or other obligations aggregating in the principal amount of more than $5,000,000 during the calendar year in which the above Warrants are to be issued. BE IT FURTHER RESOLVED by the Board of Trustees of Sanitary and Improvement District No. 494 of Douglas County, Nebraska that this and the preceding Resolutions are hereby. adopted as the Certificate with Respect to Arbitrage of the District pertaining to the above Warrants and the District and the Chairman and Clerk of the District hereby further certify, as of the date of the registration of the above Warrants with the County Treasurer of Douglas County, Nebraska, as follows: I. No separate reserve or replacement fund has been or will be established with respect to the above Warrants. The District reasonably anticipates that monies in its Bond Fund reasonably attributable to the above Warrants in excess of the 1 Minutes of Meeting of Board of Trustees June 25, 2007 SID No. 494 of Douglas County, Nebraska Page 10 lesser of: (a) 10% of the net principal proceeds of the above Warrants, (b) the maximum annual debt service due on the above Warrants, or (c) 125% of average annual debt service due on the above Warrants will be expended for payment of principal of and interest on the above Warrants within 13 months after receipt of such monies. That amount which is currently held in the District's Bond Fund which exceeds the amount which is to be expended for payment of principal and interest on the above Warrants within 13 months after receipt of such monies, plus that amount arrived at pursuant to the immediately preceding sentence, will not be invested in any securities or any other investment obligations which bear a yield, as computed in accordance with the actuarial method, in excess of the yield on the above warrants. 2. To the best of their knowledge, information and belief, the above expectations are reasonable. 3. The District has not been notified of any listing of it by the Internal Revenue Service as an issuer that may not certify its bonds. 4. This Certificate is being passed, executed and delivered pursuant to Section 1.148-2(b)(2)of the Income Tax Regulations under the Internal Revenue Code of 1986, as amended. - On roll call on the foregoing resolutions, the following Trustees voted aye: Dan J. McCarty, Steven G. Reeder, Gary L. Shipley and Dennis Kimberlin; voting nay thereon were the following Trustees: None. The Chairman then declared said resolutions to be duly carried and adopted. Under Miscellaneous Matters, the following transpired: a. Mr. Steve Finn of Select Homes appeared before the Board seeking the Board's approval of a general rezoning of the lots in the SID from R-4 to R-3, with a 25 foot front yard setback rather than a 35 foot setback, and five foot side yards as opposed to seven-foot sideyard setbacks. He indicated that the typical house he would build will have a 54-foot depth (without the patio) and a width of 45 to 65 feet. Prices for the houses would range from $169,000 to $249,000. He submitted a drawing of a prototype and some examples of present houses and invited the trustees to inspect some of his constructed houses. After consideration, the following motion was duly moved and seconded, to-wit: Minutes of Meeting of Board of Trustees June 25, 2007 SID No. 494 of Douglas County, Nebraska Page 11 BE IT RESOLVED by the Board of Trustees of Sanitary and Improvement District No. 494 of Douglas County, Nebraska, that the request of Select Homes to recommend rezoning from R-4 to R-3 be and hereby is tabled until a later meeting. On roll call on the foregoing resolution, the following Trustees voted aye: Dan J. McCarty, Steven G. Reeder, Gary L. Shipley and Dennis Kimberlin; voting nay thereon were the following Trustees: None. The Chairman then declared said resolution to be duly carried and adopted. b. A discussion took place regarding the need for the County to do a better job on street maintenance in the District. c. The next meeting of the Board is tentatively scheduled for July 11 . The Chairman then directed the Board's attention to Agenda Item No. 11, Executive Session,whereupon, at 4:40 p.m.the following resolution was duly moved and seconded, -- to-wit: RESOLVED, that the Board of Trustees of Sanitary and Improvement District No. 494 of Douglas County, Nebraska, enter into a closed session for the purpose of discussing potential litigation, same being necessary for the protection of the public interest. There being no further discussion on the foregoing resolution, on roll call, the following Trustees voted aye: Dan J. McCarty, Dennis Kimberlin, Steven G. Reeder and Gary L. Shipley; voting nay thereon were the following Trustees: None. The Chairman then declared said resolution duly carried and adopted, and restated on the record the limitation of the subject matter of the closed session. The Board then went into a closed session for the above-noted purpose. At 5:20 p.m. the following resolution was moved and seconded, to-wit: RESOLVED,that the Board does herewith terminate its closed session held for the purpose of discussing potential litigation and that the Engineer and Attorney proceed as per the Board's direction. There being no further discussion on the foregoing resolution, on roll call, the following Trustees voted aye: Dan J. McCarty, Steven G. Reeder, Dennis Kimberlin and Gary L. Shipley; voting nay thereon were the following Trustees: None. The Chairman then declared said resolution duly carried and adopted. Minutes of Meeting of Board of Trustees June 25, 2007 SID No. 494 of Douglas County, Nebraska Page 12 There being no further business, a motion for adjournment was duly moved, seconded and unanimously carried. Dan J/McCarty, Chairman& stee Dennis Kimberlin, Acting Clerk & Trustee 00314134.WPD