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Board of City Commissioners - November 19, 2018

The Regular Meeting of the Board of City Commissioners of the City of Fargo, North Dakota, was held in the City Commission Room at City Hall at 5:00 o'clock p.m., Monday, November 19, 2018.
The Commissioners present or absent were as shown following:
Present: Gehrig, Grindberg, Piepkorn, Strand, Mahoney.
Absent: None.
Mayor Mahoney presiding.

The Mayor read a message with the following information: The City received a $264,830.00 cash rebate in October from the City’s purchasing card program; Fargo Cass Public Health will host the Heart-n-Soul Community Café on November 20th and a flu-shot clinic on November 30th; Commercial Building Inspector Mike Blevins has achieved certification as a Master Code Professional with the International Code Council; upcoming programs at the Library include An Elephant and Piggie Party, a movie series featuring World War I films, a presentation by Tom Isern, author of “Pacing Dakota,” a Harry Potter Celebration Day, a storytime featuring the “Classic Nutcracker” with a visit by the FM Ballet and “Two Sneaky Elves” holiday craft-making sessions; area law enforcement personnel will be ringing the bell for the Salvation Army at different locations on December 11th; Chief Todd has spoken with the new Cass and Clay County Sheriffs, who will take office in January, and he is confident that the good working relationships and partnerships will continue.

Order of Agenda Approved:
Commissioner Grindberg moved the Order of the Agenda be approved.

Second by Gehrig. All the Commissioners voted aye and the motion was declared carried.

Minutes Approved:
Commissioner Strand moved that the Minutes of the Regular Meeting of the Board held on November 5, 2018 be approved as read.

Second by Piepkorn. All the Commissioners voted aye and the motion was declared carried.

Consent Agenda Approved:
Commissioner Grindberg moved the Consent Agenda be approved as follows:

1. Receive and file an Ordinance Amending Section 10-0318 of Article 10-03 of Chapter 10 of the Fargo Municipal Code Relating to Public Safety, Morals and Welfare.

2. Waiver of requirement for receipt of an Ordinance one week prior to 1st reading and 1st reading of the following Ordinances:
a. Amending Section 1-0305.A of Article 1-03 of Chapter 1 of the Fargo Municipal Code Relating to Classifications of Ordinance Violations – Tattoos, Body Art and Body Piercing Violations as Class B Misdemeanors.
b. Amending Sections 25-3301 through 25-3307 of Article 25-33 of Chapter 25 and Enacting Sections 25-3301.1 and 25-3301.2 of Article 25-33 of Chapter 25 of the Fargo Municipal Code Relating to Tattoos, Body Art and Body Piercing.

3. 2nd reading and final adoption of the following Ordinances; 1st reading 11/5/18:
a. Rezoning Certain Parcels of Land Lying in Gardenia Addition to the City of Fargo, Cass County, North Dakota.
b. Amending Sections 20-0212, 20-0216, 20-0302, 20-0402, 20-0403, 20-0502, 20-0612, 20-0701, 20-0704, 20-0705, 20-0901, 20-0907 and 20-0914 of Articles 20-02 thru 20-07 and 20-09 of Chapter 20 of the Fargo Municipal Code Relating to the Land Development Code of the City of Fargo.

4. Direct the City Attorney to prepare amendments to the Fargo Municipal Code relating to Driving without a License in Possession.

5. Applications for property tax exemptions for improvements made to buildings:
a. Christine C. and Thomas D. Dowdell, 3107 Par Street North (3 year).
b. Keith G. and Shelley A. Lesteberg, 2844 28th Avenue South (3 year).
c. Ann C. Schmidt, 2315 32nd Street South (3 year).
d. Martin R. Aas, 1418 20th Street South (5 year).
e. David A. and Shanon Gregor, 1014 24th Avenue South (5 year).
f. Craig and Kaia Ehrmantraut, 2819 Longfellow Road North (5 year).
g. Nicholas L. and Rachel R. Kjonaas, 3720 Fairway Road North (5 year).
h. Amy and Andrew Herian, 2849 Hickory Street North (5 year).
i. Karen Timm, 3245 17th Avenue South, Unit 102 (5 year).
j. Mitchell H. and Michelle EY Cunningham, 1526 9th Street North (5 year).
k. Darian L. Hanson, 814-816 32nd Street North (5 year).
l. Richard A. and Trudy M. Huschka T/O/D, 2105 2nd Street North (5 year).
m. Dmitry Kovalyov and Kari A. Losee, 1601 6th Street South (5 year).
n. Lora J. Wallgren T/O/D, 1725 14th Street South (5 year).
o. Tammy and Jeffrey Osborn, 1625 14th Avenue South (5 year).
p. Teresa L. Ash, 1209 15th Street South (5 year).

6. Applications for Games of Chance:
a. Fargo Angels Hockey Club for a calendar raffle on 12/2/18.
b. Knights of Columbus Council 11930 for a raffle on 5/23/19.
c. Cancer Benefit for Travis Anderson for a raffle and raffle board on 12/2/18; Public Spirited Resolution.
d. NDSU Judging Club for a calendar raffle from 4/8/19 to 4/12/19.
e. NDSU Judging Club for a raffle on 2/20/19.

7. Receive and file General Fund – Budget to Actual through October 30, 2018 (unaudited).

8. Direct the City Attorney to review and revise Article 13-11, Child Care Centers.

9. Contract Agreement with AE2S Communications for breastfeeding campaign initiatives (RFP17362).

10. Developer and Road Use Agreement with 404 Place, LLC.

11. Negative Final Balancing Change Order No. 2 in the amount of -$4,880.27 for Project No. UR-17-C1.

12. Final Balancing Change Order No. 1 in the amount of $0.00 for Project No. TP-16-A1.

13. Community Development Block Grant Storefront Rehab project at 16 8th Street South.

14. Sole Source Procurement with Bishop Land Design, LLC in the amount of $150,000.00 to perform programming services for the Civic Plaza Block.

15. Bid award to Butler Machinery for purchase of one crawler dozer for $452,722.00 with a four-year lease payment of $113,193.00 (RFP18310) and to RDO Equipment for purchase of one excavator with eight annual payments of $49,068.00 (RFP18309).

16. Bid award to Cougar Tree Care for winter pruning operations in the amount of $120,203.06 for AREA Project 1 and to Carr’s Tree Service in the amount of $17,700.00 for RAISE Projects 1 and 2 (RFP18314).

17. Developer Waiver of Protest Agreement with Dakota Beach Capital, LLC.

18. Bid award to Style-it-Services, All-Terrain Grounds Maintenance and Valley Green & Associates for the 2018/2019 sidewalk snow and ice removal code enforcement (RFP18267).

19. Extension of the sidewalk snow and ice removal contract with Polar Snow & Ice Management for the 2018/2019 snow season (RFP17285).

20. Amendment No. 3 with First Transit to revise the fees for the period of January 1, 2019 through December 31, 2019.

21. Amendment to Software Support Agreement with SPX Corporation (Genfare).

22. Bid awards to Swanberg Construction (General) in the amount of $843,000.00, to Manning Mechanical (Mechanical) in the amount of $540,000.00 and to JDP Electric (Electrical) in the amount of $326,516.00 for Project No. WW1701 Phase II A Improvements (Central Generation Station).

23. Memorandum of Offer to Landowner and Permanent Easement (Street and Utility) with Elwood Jay Brand (Project No. WW1705).

24. Resolution Prescribing Rates and Charges for Hauled Liquid Waste at the Wastewater Treatment Facility (Attachment “A”).

25. Bills in the amount of $5,847,671.20.

Second by Gehrig. On call of the roll Commissioners Grindberg, Gehrig, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Change Order No. 1 and Time Extension for Improvement District No. BR-18-F1 Approved:
Commissioner Grindberg moved Change Order No. 1 for an increase of $30,054.22 and a time extension to October 26, 2018 for substantial completion of Improvement District No. BR-18-F1 be approved.

Second by Gehrig. On call of the roll Commissioners Grindberg, Gehrig, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Change Order No. 2 for Improvement District No. AN-17-G1 Approved:
Commissioner Grindberg moved Change Order No. 2 for an increase of $36,312.00 for Improvement District No. AN-17-G1 be approved.

Second by Gehrig. On call of the roll Commissioners Grindberg, Gehrig, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Change Order No. 1 for Improvement District No. TM-18-A1 Approved:
Commissioner Grindberg moved Change Order No. 1 for an increase of $33,887.90 for Improvement District No. TM-18-A1 be approved.

Second by Gehrig. On call of the roll Commissioners Grindberg, Gehrig, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Memorandum of Offer to Landowner Permanent Easement (Storm Sewer) from Plecity Kowalski Construction, Inc. Approved (Improvement District No. BN-16-H1):
The Board received a communication from Land Acquisition Specialist Shawn Bullinger stating a Memorandum of Offer to Landowner Permanent Easement (Storm Sewer) from Plecity Kowalski Construction, Inc. in association with Improvement District No. BN-16-H1 has been recommended for purchase by the City Engineering office. He said a final purchase price has been reached and authorization from the Board is requested to proceed with the purchase.
Commissioner Grindberg moved the Memorandum of Offer to Landowner Permanent Easement (Storm Sewer) from Plecity Kowalski Construction, Inc. in association with Improvement District No. BN-16-H1 be approved.

Second by Gehrig. On call of the roll Commissioners Grindberg, Gehrig, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Memorandum of Offer to Landowner Temporary Easement (Construction) from Clark and Sherri D. Erickson Approved (Improvement District No. BN-19-A1):
The Board received a communication from Land Acquisition Specialist Shawn Bullinger stating a Memorandum of Offer to Landowner Temporary Easement (Construction) from Clark and Sherri D. Erickson in association with Improvement District No. BN-19-A1 has been recommended for purchase by the City Engineering office. He said a final purchase price has been reached and authorization from the Board is requested to proceed with the purchase.
Commissioner Grindberg moved the Memorandum of Offer to Landowner Temporary Easement (Construction) from Clark and Sherri D. Erickson in association with Improvement District No. BN-19-A1 be approved.

Second by Gehrig. On call of the roll Commissioners Grindberg, Gehrig, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Memorandum of Offer to Landowner Temporary Easement (Construction) from Minnkota Power Cooperative, Inc. Approved (Improvement District No. BN-19-A1):
Commissioner Grindberg moved the Memorandum of Offer to Landowner Temporary Easement (Construction) from Minnkota Power Cooperative, Inc. in association with Improvement District No. BN-19-A1 be approved.

Second by Gehrig. On call of the roll Commissioners Grindberg, Gehrig, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Memorandum of Offer to Landowner Temporary Easement (Construction) from Fred M. Hector Jr. Revocable Trust Approved (Improvement District No. BN-19-A1):
Commissioner Grindberg moved the Memorandum of Offer to Landowner Temporary Easement (Construction) from Fred M. Hector Jr. Revocable Trust in association with Improvement District No. BN-19-A1 be approved.

Second by Gehrig. On call of the roll Commissioners Grindberg, Gehrig, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Memorandum of Offer to Landowner Temporary Easement (Construction) from Bradley A. Anderson and Yuki Anderson Approved (Improvement District No. BN-19-A1):
Commissioner Grindberg moved the Memorandum of Offer to Landowner Temporary Easement (Construction) from Bradley A. Anderson and Yuki Anderson in association with Improvement District No. BN-19-A1 be approved.

Second by Gehrig. On call of the roll Commissioners Grindberg, Gehrig, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Update on Winter Sheltering:
Assistant City Administrator Michael Redlinger said he wants to acknowledge the hard work of the community over the past months and the coordinated effort on both sides of the river to come up with solutions to the winter sheltering needs of the homeless. He said the City does not expect to need emergency services for sheltering this year due to the fact that there is now a coordinated entry program for the shelters and transportation needs, between shelters, have been addressed. He said several City staff members have been involved with this issue and there is a lot of good news.

Planning Director Nicole Crutchfield said there have been many new construction projects this past year and there are now more beds to accommodate overnight sheltering. She said several departments within the City have roles in the sheltering program including Public Health and Planning. She said the City, along with the Director of the Gladys Ray Shelter Jan Eliason; Pastor Sue Koesterman, Executive Director of Churches United for the Homeless; and Cody Schuler, Executive Director of the Coalition for Homeless Persons, have come up with a plan to deal with overflow and they do not anticipate another scenario such as what happened last winter when a State of Emergency was declared and the Moorhead Armory and Dilworth Community Center opened up temporary shelters.

In response to a question from Mayor Mahoney asking what is the average number of homeless in the Fargo-Moorhead area, Ms. Crutchfield said about 850 each day.

Ms. Elisason said there have been people moving into permanent housing from the shelters, which opens up beds for temporary shelter. She said those moving into permanent housing have been in the shelter for longer periods and have consumed many resources.

Ms. Koesterman said people in Moorhead worked on and received a grant that allowed seven families to move into permanent housing, which in turn opened up room in the shelter.

In response to a question from Commissioner Strand regarding long-term needs for the homeless, Ms. Koesterman said last year the coordinated entry system for shelter beds had just started and the groups did not have the experience or logistical abilities. She said this year there is a much better understanding of the system as well as the vulnerability of the homeless and how the shelters can manage overflow. She said each shelter has identified spaces for overflow, prioritizing for families and women. She said all of the overflow spaces are now tied into the system and people move from overflow to regular shelters where they can get case management. She said it is important that the homeless get case managers and there is a big need for more affordable housing and housing with support, especially for the homeless who are elderly and have health issues.

Commissioner Strand said there is much to be proud of in the community and there are not enough words to thank everyone involved.

Development Agreement with Dakota Beach Capital, LLC Approved:
The Board received a communication from Director of Strategic Planning and Research Jim Gilmour stating in September 2018, the Board approved a Payment in Lieu of Tax Exemption (PILOT) incentive for Dakota Beach Capital, LLC and directed the City Attorney to prepare a development agreement, which is now before the Board for approval. He said the project is located at 914 and 918 15th Street North near North Dakota State University and involves the removal of two older homes and the construction of a new 16-unit apartment building with interior and exterior parking. The project conforms to the existing UMU, University Mixed-Use Zoning, he said, and property taxes will remain at the current level for the first five years and will be based on 50 percent of the increased property in years 6 through 10.
Commissioner Grindberg moved the Development Agreement with Dakota Beach Capital, LLC be approved.

Second by Piepkorn. On call of the roll Commissioners Grindberg, Piepkorn and Mahoney voted aye.
Commissioners Gehrig and Strand voted nay.
The motion was declared carried.

Resolution Adopted Approving Fitzsimonds Addition (5080 38th Street South and 3805 52nd Avenue South):
A Hearing had been set for this day and hour to consider approval or denial of an application requesting a Plat of Fitzsimonds Addition (Major Subdivision) on a portion of the Southeast Quarter of Section 34, Township, 139 North, Range 49 West of the 5th Principal Meridian, Cass County, North Dakota. The Fargo Planning Commission at their Regular Meeting on August 7, 2018 recommended approval.
Current Planning Coordinator Donald Kress said this plat creates one block with seven lots. He said lots will take access at 51st Avenue and some access from 38th Street, which will provide for new commercial development. He said there is no change to the zoning and all parties have signed a Development Agreement.
Commissioner Grindberg offered the following Resolution and moved its adoption:
BE IT RESOLVED BY THE BOARD OF CITY COMMISSIONERS OF THE CITY OF FARGO:
WHEREAS, A Plat has been filed in the office of the City Auditor entitled “Fitzsimonds Addition” containing 7 Lots, 1 Block and 11.71 acres of land more or less, located at 5080 38th Street South and 3805 52nd Avenue South; and
WHEREAS, A Hearing was held August 7, 2018 by the Fargo Planning Commission, and notice of such Hearing had been published, as required by law, and said Plat had been approved by the Fargo Planning Commission and by the City Engineer; and
WHEREAS, The City Auditor's Office published a Notice of Hearing on said Plat in the official newspaper for the City of Fargo on November 5 and 12, 2018 that a Hearing would be held in the City Commission Room, City Hall, Fargo, North Dakota at 5:15 p.m., November 19, 2018 at which time said Plat would be considered and all interested persons would be heard.
NOW, THEREFORE, BE IT RESOLVED, That the findings and recommendations of staff and the Planning Commission be accepted and the Plat entitled “Fitzsimonds Addition” be and the same is hereby in all things affirmed and approved on the basis that it complies with the Standards of Article 20-06, and all other applicable requirements of the Land Development Code, and that the Mayor of the City of Fargo and the appropriate City Officials are hereby directed to endorse their approval on the Plat and then direct Petitioner to file same for record in the Office of the Recorder of Cass County, North Dakota.

Second by Gehrig. On the vote being taken on the question of the adoption of the Resolution Commissioners Grindberg, Gehrig, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the Resolution was adopted.

Hearing on a Dangerous Building Located at 826 10th Street North: City Attorney’s Office Directed to Prepare the Appropriate Findings of Fact and Order:
A Hearing had been set November 5, 2018 on a dangerous building located at 826 10th Street North.
At the November 5, 2018 meeting, the Hearing was continued to this day and hour.
The Board received a communication from Inspections Administrator Bruce Taralson stating the owner of the property at 826 10th Street North has failed to comply with a Dangerous Building Notice and Order to remove the heavily damaged structure at that location within the time allowed for removal. He said the City has always worked with owners to try to come to a resolution. He said all required notices have been made in order to take this action. The City has been dealing with complaints about this property since 2002, he said, and many permits have been taken out and never completed and complaints have been many, including dilapidation and junk vehicles. He said in February of 2016, a new owner acquired the property; however, it is in the same condition today other than a dilapidated garage has been removed. He said the previous continuance was at the request of the owner, who is trying to save the house and the Inspections Department has received some of the requirements needed to issue a building permit; however, two are still missing.

Lee Allen, owner of the property, said he did not know about the complaints that went back to 2002. He said this year he has had problems getting to the house due to the road construction on 10th Street North and contractors using the yard of the house for materials storage. He said he knows the house does not look good; however, structurally it is a good house. He said if he can fix the house, the neighbors will be happy and it would be a shame to tear it down. He said he is working on getting contractors lined up and he feels it will be a solid structure once everything is corrected.

Commissioner Grindberg moved the house located at 826 10th Street North be determined a dangerous building, the City Attorney’s Office be directed to prepare and serve the owner with the appropriate Findings of Fact and Order and appropriate staff be directed to secure the removal of this structure if compliance with Inspections Department stipulations and City Ordinances are not met by the owner by December 5, 2018.

Second by Piepkorn. On call of the roll, Commissioners Grindberg, Piepkorn, Gehrig, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Hearing on a Dangerous Building Located at 1101 7th Street North: City Attorney’s Office Directed to Prepare the Appropriate Findings of Fact and Order:
A Hearing had been set for September 24, 2018 on a dangerous building located at 1101 7th Street North.
At the September 24, 2018 meeting, the Hearing was continued to October 22, 2018.
At the October 22, 2018 meeting, the Hearing was continued to this day and hour.
The Board received a communication from Inspections Administrator Bruce Taralson stating the owner of the property at 1101 7th Street North has failed to comply with a Dangerous Building Notice and Order to remove the heavily damaged structure at that location within the time allowed for removal. He said his inspectors knew an elderly woman was living in the house and did not want to leave and other City and County health officials knew about the elderly woman. He said there were other people also living in the house; however, the owner was not aware of who the people were, so the Police were involved. The woman’s daughter is now acting as her legal guardian, he said, and the conservator of her estate. He said after the woman was out of house after a court action, there were meetings about a possible housing rehab program with Planning and those meetings continue. The house has been in its current condition for many years, he said, and there has been no water, gas, sewer or heat service for many years. The interior is not habitable, he said, and the basement has flooded multiple times, there were pets inside the house that were not allowed to go outside, the house is infested with rodents, there have been vagrant activities and the house is structurally not safe. The owner and the bank are in favor of demolition, he said; however, the owner now has the house listed for sale. The latest complaints about the house, he said, came from the Health Department in July 2018. He said with the Assessor’s statement of valuation, he thought this could be solved; however, the owner now has the property listed for sale, making it necessary for Inspections to act on this house.

Alexander Diana, 501 5th Street Court, West Fargo, said he and his mother are guardians and conservators for Marilyn Kohler, the home’s owner and his grandmother.

Melody Drayton, 501 5th Street Court, West Fargo, said she is Ms. Kohler’s daughter, and is a guardian and conservator for her mother. The house is listed for sale, she said, due to the fact that a judge advised her that the house is in her mother’s estate, there is a mortgage on the house and the house must be used for the care of her mother. She said she had lived in Arizona up until about a year ago when she received a notification that she needed to contact the Cass County Attorney and social workers in Cass County regarding her mother’s health. She said she has since relocated to North Dakota to take care of her mother, who has been diagnosed with frontal lobe vascular dementia and she has been working to get guardianship. She said there is a lot of interest in the house from those who want to buy it, tear it down and rebuild and from those who want to have an engineer assess the house for possible renovation. She said she is upfront about the condition of the house and a Realtor is hiring an engineer to reassess it. The house is cleaned up, she said, the animal issues have been taken care of and the house is now in much better shape. Her mother has been living at Maple View Memory Care in Fargo, she said; however, she just received notice that her mother is going to be released from Maple View due to the fact that she does not qualify for basic or skilled care. She said she asks the Board for an extension of time in order to get an engineer’s report and a potential buyer. She is asking for a chance due to the fact there is a lot of history in the house, she said, which was built in 1897 and has been handed down in her family for generations. She said neighbors want to see something positive for the neighborhood and she is at the mercy of the City.

In response to a question from Commissioner Gehrig asking if the house is suitable for people to walk through, Mr. Taralson said due to animals and flooding it is not safe and he will not let his inspectors go into the house.

Commissioner Grindberg moved the house located at 1101 7th Street North be determined a dangerous building, the City Attorney’s Office be directed to prepare and serve the owner with the appropriate Findings of Fact and Order and appropriate staff be directed to secure the removal of this structure if compliance with Inspections Department stipulations and City Ordinances are not met by the owner by March 1, 2019.

Second by Gehrig. On call of the roll, Commissioners Grindberg, Gehrig, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Chuck Hoge Reappointed to the Growth Initiative Fund:
The Board received a communication from Mayor Mahoney recommending that Chuck Hoge be reappointed to the Growth Initiative Fund.
Commissioner Grindberg moved Chuck Hoge be reappointed to the Growth Initiative Fund for a three-year term ending December 31, 2021.

Second by Piepkorn. On call of the roll Commissioners Grindberg, Piepkorn, Gehrig, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Status Report Regarding the Municipal Airport Authority (MAA):
Mayor Mahoney said this discussion is about a Memorandum of Understanding (MOU) with the Municipal Airport Authority (MAA), which has been kicked down the road for a long time and now the Board can hopefully get some resolution.

City Attorney Erik Johnson gave a presentation about the history of the airport, state laws and airport authorities and an overview of discussions and agreements. He said the question is not about the authority of the MAA, but rather what the reality is today and what the City and MAA want the reality to look like going forward. He said the City signed an MOU with the MAA in 1969, which had a term of 10 years and ended in 1979. He said since 1979, the scope of services has expanded to include an increased role by the Finance and Auditor’s offices, Human Resources, Information Systems, Streets and Mains. Since 1979, he said, there has been no contract or MOU with the airport and the relationship has continued largely unchanged. He said the employer of airport employees is now the question as Airport Executive Director Shawn Dobberstein contends that he answers to the MAA board and that the City simply supplies support. The City, however, does and always has treated airport employees as City employees, he said, and airport employees receive a City paycheck with all accounts handled by the City. He said all airport employees are enrolled in the City’s pension plans, the City provides health and other benefits and the MAA never set up its employees to be airport employees. In comparison, he said, the Fargo Park District is part of the Fargo pension plan; however, Park employees are independent of the City. The City Commission, he said, which has the power to replace the MAA with itself or to dissolve the MAA, created the MAA in 1969. The City Commission has oversight, he said, and the City and MAA can agree upon a cooperative arrangement. The Mayor has come up with two forms of agreement with the MAA, he said. “Plan A,” he said, would be to keep the status quo and airport employees would continue as employees of the City with City benefits and it clarifies the relationship as well as payments to the City for services. He said “Plan B” makes MAA the employer and the MAA will have to acquire services elsewhere. He said whatever plan is decided, strategic discussion and guidance is needed from the City Commission for negotiations. The MAA board approved a motion for a three-year compensation package for the Executive Director, he said, and the pay request was delivered to the City Administrator, who placed the pay request into the City’s routine compensation evaluation process. He said the City Administrator later received a letter from MAA counsel stating the compensation was not a recommendation but rather a notice of decision. The MAA decision included a raise and allowances of 11 percent retroactive to January 1, 2018, totaling $182,413.00 for Year 1, 11 percent for Year 2 (2019) totaling $201,159.00 and 10 percent in Year 3 (2020) for a total of $208,073.80. He said since 2016, the Executive Director also receives $12,000.00 annually for an automobile and cell phone allowance. The City’s highest department heads earn $168,090.00, he said, and the City’s highest pay grade is for the City Administrator for 2019 and totals $191,386.00. In comparison, he said, the City Administrator oversees 997 City employees and more than 10 departments and divisions, compared to the Airport Executive Director whose employee management responsibilities include 27 employees. He said the City has not had an opportunity to study the impact such a salary increase would have on the City employee pension plan. The City routinely handles pay requests through the Position Evaluation Committee, he said, which provides recommendations to the City Commission to make the final decisions. He said this has also been the past process with the airport and what is different this time is the MAA gave the City a notice of decision about the salary increase, not a recommendation.

Commissioner Grindberg thanked Mr. Johnson for a great presentation; however, he said, the Board is getting off cue of the point made about not having an agreement. All the other stuff is just stuff right now, he said, and according to the slide in the presentation citing Century Code, which sets compensation and duties, truly this is apples and oranges as he sees it. He said this has gone on way too long without an agreement, expectations and clarity and if the City is providing services to the airport employees, that does not always constitute or should constitute that they are employees of the City. It is apples and oranges when you come back to the statute, he said, and when it is stated that they are City employees and the City treats them as City employees, legally they are not.

Mr. Johnson said he does not know.

Commissioner Grindberg said Mr. Johnson should know, he is the lawyer and “yes” or “no,” legally are they City employees? He said the City is providing services or are they employees legally of the airport.

Mr. Johnson said they are legally City employees; however, the airport may want to argue that point. He said the questions are “who is the boss?” “who pays the employee?” “who writes the paycheck?” and “who provides benefits?”

Commissioner Grindberg said a simple analogy is he used to work for a company, but his paycheck came from Payroll Solutions; therefore, the City is providing a paycheck as a service to the MAA, the City is an entity providing a service. He said he was not an employee of Payroll Solutions even though that is where his paycheck came from.

Mr. Johnson said he bets there was an agreement which identified all of that.

Commissioner Grindberg said “bingo” and that is the debate here and is the agreement.

Mr. Johnson said there is not an agreement and he does not know if the history matters terribly; however, this screams out for the need for some kind of MOU so it needs to be cleaned up one way or another. He said perhaps it is possible that we make it so the airport employees are on City payroll but agree they are employed by the MAA.

Commissioner Grindberg said there is a section in statute that allows that to be possible and that Mr. Johnson cited a statute saying the City could legally provide services.

Mayor Mahoney said he talked to the North Dakota Attorney General’s office, who said the City needs to first have a signed MOU with the MAA. He said Fargo is not the only city in the state that has an airport and per state law, there needs to be clarity. He said there are some narrow employment issues; however, he needs the help of all Board members in order to make a decision.

Commissioner Piepkorn said everyone employed by the City has the same boss and that boss is the taxpayers. He said the Board appoints members of the MAA and if they are not accountable, it cannot continue. The airport is critical to the City, he said, and all have to be together; however, he is getting a lot of push back from the MAA and it is a bad thing.

Commissioner Gehrig said there is a definitive “yes” or “no” answer. He said he is in favor of an MOU and thinks the raise for Mr. Dobberstein is too much. The Board’s only repercussion, he said, is to remove the MAA and the Board become the Airport Authority. He said the Board does not have the right to tell the MAA what to do unless the Board takes it over.

Commissioner Strand said the issue that there has not been an agreement since 1979 needs to be addressed; however, a contemporary agreement is certainly needed. The City has to honor the intention of the agreement, he said, which would be that the MAA act autonomously but under the auspices of the City and they are employees of the City. He said wages and salaries go through the City; therefore, how can the Board separate out one employee from the rest.

Mr. Johnson said his advice is to move forward with the discussion in Executive Session about the MOU and how to structure employment. There are options to make the structure simpler with a clear line of authority in terms of pay, he said.

Mayor Mahoney said the issue is the Executive Director’s compensation and no other changes for other employees was discussed. He said he cannot act on his own, there needs to be discussion due to the fact that no one has touched this for 50 years.

Commissioner Gehrig said the Board and the MAA are two public entities, the public should hear it and he does not want to go into Executive Session. He said many of the problems stem from that the fact that the Board has been hearing from one person at a time and that has not been productive.

Commissioner Grindberg asked if an Executive Session is really needed if there are already two recommendations and he does not know what could be accomplished in an Executive Session.

Mayor Mahoney said the Commissioners need to weigh in, as he does not want to negotiate for something the Commissioners do not want.

Retired Major General Mike Haugen, Vice Chairman of the MAA, said the Board needs to look at the statute, which states that the MAA hires and sets salaries. It is not the City’s money, he said, it is the MAA’s money that pays for all of the employees at the airport and that money comes from parking fees. The MAA’s money is a separate account, he said, and is reimbursed to the City for all of those paychecks. He said the 2-mills that are worth a million dollars is for other operating expenses at the airport.

Commissioner Piepkorn said the MAA’s attitude is to say this is not the taxpayer’s money; it is “their” money. He said the payment of Mr. Dobberstein is the public’s money. The MAA is not accountable to anybody, he said, and it is their attitude that this is “our” parking revenue and they can spend it however they like and that it is incorrect.

Mr. Haugen said the way the money is collected has nothing to do with taxpayers; it is fees people pay to park. He said if the MAA were to have a personnel firm print payroll checks, there would be no money transferred to the City, employees would be paid with MAA funds. He said the MAA is accountable to the City and the Executive Director has not had a pay raise in several years. Prior to his own appointment to the MAA, he said, the City found a way to give Mr. Dobberstein a raise by giving him a car and phone allowance. The demand for a great airport executive director is high, he said, and the MAA is trying to retain Mr. Dobberstein. He said look at supply and demand and look at what Mr. Dobberstein has done with FedEx and UPS, the number of jobs provided, the number of freight operations is more than passenger operations and Mr. Dobberstein is bringing in a great deal of money to the region. In regards to the MOU for hiring personnel, the Federal Aviation Administration (FAA) has control over that, he said. The MAA went from $50,000.00 payments to the City to $90,000.00, he said; however, the FAA has not approved it.

Mayor Mahoney said Mr. Dobberstein’s salary in the past 10 years has gone from $98,000.00 to more than $150,000.00 with steps, grades and COLAs.

Mr. Haugen said Mr. Dobberstein’s salary has not kept up with his peers.

Commissioner Strand said everyone is on the same team and the MAA is appreciated. He said during the last budget cycle, there was a 2 percent raise that all employees received. He said this needs to be depersonalized, it does not matter who the Executive Director is. The Board was recently approached by the Fire Department, he said, who say that they are not at the same levels as other firefighters in the region, and that is a whole department. He said the Board needs to treat everyone the same and he is not sure it is wise that the Board takes one position and treats it differently. He said what all of this boils down to is the salary of the Executive Director and the City and the MAA have been operating without a MOU for decades.

Tammy Linn, a member of the MAA, said when she was named to the MAA she questioned the MOU and the lack of updates. She said the MOU is the crux of the issue and according to State Statute the MAA is an independent entity. She wants to follow the rules, she said, and whether it is Information Technology services or whatever, there needs to be an MOU regardless of salaries. She said “Plan B” was the MAA’s redlined plan and the MAA received an AG opinion, who said to get an MOU that works for both entities and the FAA.

Commissioner Piepkorn moved the Commissioners meet in Executive Session to discuss strategy and to provide negotiating instructions and also to consult with attorneys regarding a possible agreement between the City and the Municipal Airport Authority, said Executive Session being necessary due to the fact that a negative fiscal effect on the bargaining position of the City would result if discussions regarding such negotiations were to occur in an open meeting, said Executive Session being authorized by North Dakota Century Code Section 44-04-19.1 subsections 2 and 9.

Second by Strand. On call of the roll Commissioners Piepkorn, Strand, Grindberg and Mahoney voted aye.
Commissioner Gehrig voted nay.
The motion was declared carried.
At 6:44 o’clock p.m., the Board moved to the River Room to discuss said matter in Executive Session.
Members present were: Gehrig, Grindberg, Piepkorn, Strand and Mahoney.

The Executive Session closed at 7:10 p.m. and the meeting reconvened in public session at 7:12 o’clock p.m.

Commissioner Grindberg moved that the Board adjourn to 5:00 o’clock p.m., Monday, December 3, 2018.

Second by Piepkorn. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 7:14 o’clock p.m.