Fargo City Commission - December 30, 2019 Minutes

The Regular Meeting of the Board of City Commissioners of the City of Fargo, North Dakota, was held in the City Commission Chambers at City Hall at 4:00 o'clock p.m., Monday, December 30, 2019.
The Commissioners present or absent were as shown following:
Present: Grindberg, Piepkorn, Strand, Mahoney.
Absent: Gehrig.
Mayor Mahoney presiding.

Commissioner Piepkorn moved that the Board retire into Executive Session to discuss negotiating strategy and/or to provide negotiating instructions to its negotiator, the Mayor and also to consult with its attorneys regarding the terms of an existing agreement with, and the negotiation of a revised agreement with, the Fargo Municipal Airport Authority, which matters are reasonably anticipated to result in civil litigation, said matters being authorized by N.D. Century Code 44-04-19.1 subsections 2 and 9 as it would create an adverse fiscal effect on the bargaining and/or litigation position of the City if discussions regarding offers to be made or accepted, negotiating strategy to be taken or legal consultation about negotiations or litigation were to occur in an open meeting and for the purpose of attorney consultation pursuant to N.D. Century Code § 44-04-19.1(5) in the threatened and reasonably certain litigation matter relating to Ordinance revisions pertaining to Fargo Municipal Code §1-0305.

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

At 4:05 o’clock p.m. the Board moved to the Red River Room to discuss said matters in Executive Session.
Members present were: Gehrig, Grindberg, Piepkorn, Strand and Mahoney.

The Executive Session closed at 4:50 o’clock p.m. and the meeting reconvened in public session at 5:00 o’clock p.m.
All Commissioners present. Mayor Mahoney presiding.

The Mayor read a message with the following information: Fire Captain Ben Willey was awarded the Worthington Scholarship from the Center for Public Safety Excellence; the Library’s Winter Read-a-Thon program and weekly Winter Storytime Series for Toddlers and Preschoolers starts January 6th; Public Works crews worked overnight and all day today in residential areas with every available staff member and piece of equipment on the road battling the more than 13 inches of snow from this weekend’s blizzard; Fargo has been named Number One on ZipRecruiter’s list of the Top 10 Hottest Job Markets for 2020; the City recently broke ground on the Mercantile Project, a public-private partnership between the City, Kilbourne Group and Tom and Kari Smith, owners of the Great Northern Bicycle Company.

Order of Agenda Approved:
Commissioner Grindberg moved the Order of the Agenda be approved moving Item No. “3” from the Consent Agenda to the Regular Agenda and adding the discussion from the Executive Session regarding the Municipal Airport Authority at the beginning of the Regular Agenda.

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

Minutes Approved:
Commissioner Piepkorn moved that the Minutes of the Regular Meeting of the Board held on December 16, 2019 be approved as read.

Second by Grindberg. 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. 2nd reading and final adoption of a Moratorium Ordinance Regarding the Suspension of the Issuance of Business Licenses pursuant to Article 25-04 Regarding Vehicles for Hire; 1st reading, 12/16/19.

2. Resolution Authorizing Officers to Make Deposits and Withdrawals and approval of the designated depositories (Attachment “A”).

3. Precinct locations for the 2020 elections (moved to the Regular Agenda).

4. Site Authorizations for the ND Association for the Disabled, Inc. at Cowboy Jack’s (amended) and Africa International Restaurant/Night Club.

5. Applications for Games of Chance:
a. Hope Blooms for a raffle and raffle board on 2/20/20.
b. Red River Valley Fraternal Order of Police for a raffle board on 1/18/20.
c. TNT Kid’s Fitness for a raffle and raffle board on 1/16/20.
d. St. John Paul II Catholic Schools for a raffle on 4/25/20.
e. United Chinese American Fargo Moorhead (UCAFM) for a raffle on 1/24/20.
f. NDSU Saddle and Sirloin for a raffle on 4/24/20.

6. Exercising the option to piggyback on the contract with AVI Systems, Inc. for audiovisual installations in the Civic Memorial Auditorium second floor meeting chambers (PBC17110).

7. Task Order No. 1 with AE2S Nexus in the amount of $96,900.00 for evaluation and development of a funding plan to assist with future CIPs.

8. Amendment (First) to Encroachment Agreement (Garage) with Block 9 Partners, LLC.

9. Purchase Agreement with Judie A. VandeVoort in the amount of $87,175.75 for Project No. FM-15-K0.

10. Software as a Service Agreement with Tyler Technologies, Inc.

11. Agreement with Richland County Health Department for nurse practitioner services.

12. Agreement for Services with Fargo-Moorhead Metropolitan Council of Governments.

13. Agreement with Ed’s Towing Service Inc. for junk vehicle removal services for 2020.

14. Subrecipient Agreement with HomeField 3, LLLP Community Development Block Grant Property Acquisition – 4225 28th Avenue South (CDRA19182).

15. Allocation of the 2019 and 2020 Social Service Funds in the amount of $56,000.00 to Valley Senior Services.

16. Bid award to Tennant Company in the amount of $59,777.42 for one LP sweeper/scrubber (RFP20001).

17. Bid award to Fargo Tractor in the amount of $51,800.00 for one 60HP 4WD front loader tractor (RFP20002).

18. Contract negotiations with Sentry Security, Inc. for services at the GTC and MTG (RFP19179).

19. Lease Agreement (Addendum for Inclement Weather) with Jefferson Partners, LP.

20. Bills in the amount of $15,214,341.71.

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.

Negative Final Balancing Change Order No. 3 for Improvement District No. BN-19-B1 Approved:
Commissioner Grindberg moved Negative Final Balancing Change Order No. 3 in the amount of -$3,759.05 for Improvement District No. BN-19-B1 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.

Settlement Agreement and Release with Shark Properties, LLC Approved (Improvement District No. BR-17-F1):
The Board received a communication from City Engineer Brenda Derrig stating there were damages to a property during the removal and replacement of sidewalk as part of a water main replacement and street reconstruction project on 4th Avenue North. The Settlement Agreement and Release resolves any and all damage claims caused as a result of the project and states each party shall be responsible for a third of the alleged damages in the amount of $77,000.00 with the City of Fargo and Master Construction each paying $25,667.00 to Shark Properties, LLC.

Commissioner Grindberg moved the Settlement Agreement and Release with Shark Properties, LLC 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.

Negotiations with the Fargo Municipal Airport Authority Extended to January 13, 2020:
Mayor Mahoney said an Executive Session was held to discuss the MOU with the Fargo Municipal Authority, which has been in mediation. The Airport Authority Board has also met in Executive Session, he said. As a result of the Executive Session, Commissioner Strand has a motion to extend the MOU, he said. The MOU cannot be released at this time due to it being in mediation. When the two public entities approve the MOU, it will then be distributed to the public, he said. The talks with the members of the Airport Authority have been fruitful, he said, and he is hopeful the MOU can be signed at the next session.

Commissioner Strand moved to extend the 45-day negotiation window with the Fargo Municipal Airport Authority to the January 13, 2020 City Commission meeting in order to complete the mediation.

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

Update Regarding the Water Infrastructure Finance and Innovation Act (WIFIA) and Fargo-Moorhead Diversion Project Financing:
FM Diversion Executive Director Joel Paulsen said the Diversion Authority update is to explain the Water Infrastructure Finance and Innovation Act process. He said John Shockley has put in many hours on the financial arrangement for the payment of debt services and the flow of funds. He said in the near future there will be a request to each member entity for a resolution pledging the sales tax revenue to this process.

FM Diversion Authority Attorney John Shockley shared a PowerPoint presentation previously given to the Diversion Authority. The genesis of this, he said, was the Letter of Intent that the Diversion Authority submitted in July regarding the US Environmental Protection Agency (EPA) WIFIA loan. He said $510 million in WIFIA loan funds were requested and the EPA approved a loan of up to $561 million. It is anticipated that the loan will be closed in January 2021, he stated. WIFIA loans are attractive due to the interest rate, he said, which is one basis point above the US Treasury rates and on a long-term loan such as this it is beneficial to lock in the interest rate on the date of close. He said it is not the same as paying interest as one would when closing on a bond. He said other features of a WIFIA loan are a 35-year repayment, allowing one to lower annual debt service and there is a 5-year deferral period after substantial completion of the project, which is estimated at about 2026 and the first payment not being due until 2031. He said it also allows debt service to be sculpted so high interest loans and bonds can be shifted to pay-off first, making it a powerful financing tool. He reviewed a flowchart of each source of funding for the project and where the funding goes. He said post-closing activities include ongoing reporting requirements, such as construction progress reports, financial statements, audited statements and annual financial pro formas. After closing, there will be a site visit, he said, and then site visits once per year to verify how funds are spent. There is a federal compliance audit to assure compliance with the American Iron and Steel Requirements, the Davis-Bacon Act and a number of other requirements, he stated.

Commissioner Grindberg said with Mr. Shockley’s acumen, he was able to find a path forward into the EPA and made a huge difference and he gave kudos to him as well as Mr. Paulsen. He said the update is timely for those Commissioners who have not heard the presentation.

Hearing on a Dangerous Building Located at 18 8th Avenue North Continued to January 13, 2020:
A Hearing had been set for this day and hour on a dangerous building located at 18 8th Avenue North.

Commissioner Grindberg moved the Hearing be continued to 5:15 o’clock p.m. on Monday, January 13, 2020.

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.

Renaissance Zone Project for TLK Holdings Approved:
A Hearing had been set for this day and hour to receive comments on a Renaissance Zone Project for TLK Holdings for a commercial lease project located at 117 Broadway North.
No written protest or objection to the project has been received or filed in the City Auditor's Office.
The Board determined that no person is present to protest or offer objection to the project.

Assistant Planning Director Mark Williams said the Renaissance Zone Project application presented by TLK Holdings meets all of the minimum criteria set forth in the Renaissance Zone Plan and is consistent with the established goals and objectives. He said the applicant proposes to lease 2,700 square feet and estimates $15,000.00 in tax exemptions over a 5-year term. He said it is recommended that the project be approved.

Commissioner Piepkorn commented that the recent aerial photo of that address shows a lot of new development, which is a great sign of progress in Downtown. He said he is a fan of the applicant, Taco Shop.

Commissioner Piepkorn moved the Renaissance Zone application filed by TLK Holdings for a commercial lease project located at 117 Broadway North be approved and the income tax and property tax exemptions be granted as recommended by the Renaissance Zone Authority.

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

Application Filed by Chipotle Mexican Grill of Colorado d/b/a Chipotle Mexican Grill for an Alcoholic Beverage License Approved:
A Hearing had been set for this day and hour on the application filed by Chipotle Mexican Grill of Colorado d/b/a Chipotle Mexican Grill for a Class "F" Alcoholic Beverage License at 1204 19th Avenue North, notice of which had been duly published in the official newspaper for the City of Fargo.
No written protest or objection to the granting of the application has been received or filed in the office of the City Auditor, and said application has been approved by the Police Department as to the character of the applicant.
The Board determined that no person is present at this Hearing to protest or offer objection to the granting of the application.

City Auditor Steve Sprague said a Class “F” Alcoholic Beverage License is a full alcohol license that requires the food sales to exceed the alcohol sales and that there is no physical bar, so the delivery is at a table or booth. He said the building is being converted from being a bank.

In response to a question from Commissioner Piepkorn about the fee for a Class “F” Alcoholic Beverage License and how many are available, Mr. Sprague said it has to be in a restaurant and there is no limit. He said the annual fee is $1,500.00 and the one-time initial fee is $3,000.00. He said a Class “FA” Alcoholic Beverage License, which has the bar, has a $100,000.00 fee for the license and the extra costs come in having the physical bar.

Commissioner Piepkorn moved the application be approved.

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

Application Filed by TLK Holdings d/b/a Taco Shop for an Alcoholic Beverage License Approved:
A Hearing had been set for this day and hour on the application filed by TLK Holdings d/b/a Taco Shop for a Class "F" Alcoholic Beverage License at 117 Broadway North, notice of which had been duly published in the official newspaper for the City of Fargo.
No written protest or objection to the granting of the application has been received or filed in the office of the City Auditor, and said application has been approved by the Police Department as to the character of the applicant.
The Board determined that no person is present at this Hearing to protest or offer objection to the granting of the application.

City Auditor Steve Sprague said this new location for the Taco Shop would be different from the others in that they plan to serve alcohol. He said issues found in the background check were old, so it comes with a recommendation for approval.

Commissioner Piepkorn moved the application be approved.

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

Application Filed by Bachman Catering, LLC d/b/a VIP Room for an Alcoholic Beverage License Approved:
A Hearing had been set for this day and hour on the application filed by Bachman Catering, LLC d/b/a VIP Room for a Class "F" Alcoholic Beverage License at 624 Main Avenue #1, notice of which had been duly published in the official newspaper for the City of Fargo.
No written protest or objection to the granting of the application has been received or filed in the office of the City Auditor, and said application has been approved by the Police Department as to the character of the applicant.
The Board determined that no person is present at this Hearing to protest or offer objection to the granting of the application.

City Auditor Steve Sprague said the applicant is upgrading from a beer and wine license and would like to add spirits to their menu. He said it comes with a recommendation for approval.

Commissioner Piepkorn moved the application be approved.

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

Second Reading and Final Adoption of an Ordinance Relating to Classification of Ordinance Violations Approved:
Mayor Mahoney said the first reading of this Ordinance was heard on December 2, 2019 and the second reading was delayed from the December 16, 2019 Regular Meeting. He said Assistant City Attorney Nancy Morris is available for questions. The Board discussed the Ordinance in an Executive Session, he said, and Commissioner Strand has a modified motion.

Commissioner Strand moved that the proposed Ordinance Amending Section 01-0305.C, of Article 01-03 of Chapter 01 of the Fargo Municipal Code Relating to Classification of Ordinance Violations which was placed on its first reading
December 2, 2019 be now placed on its second reading and a vote taken on the question of its final passage and adoption and that such an amendment serves to promote the protection of the health, safety and welfare of the residents of Fargo.

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

There was unanimous consent to waive reading of the Ordinance in its entirety and no one was present to request that the Ordinance be read.
On the vote being taken on the question of the final passage and adoption of the Ordinance Commissioners Strand, Grindberg, Piepkorn, Gehrig and Mahoney voted aye.
No Commissioner being absent and none voting nay, the Ordinance was duly passed and adopted.

Amended Resolution Authorizing the Issuance of a Promissory Note (Subject to Budget Appropriation) and Authorizing Grant of Security Adopted:
City Attorney Erik Johnson said a nearly identical Resolution was approved at the last meeting. He said this has to do with the $2 million loan for the $13 million Mercantile Parking Ramp. He said $11 million in the form of bonds is to be issued within a month and a half or so, and this $2 million is on top of that, which is an interest-free loan for ten years. He said this is before the Board due to a creditor realizing prior to closing that it would be helpful to have some language changed that a non-appropriation would not automatically cancel the note. He said action would need to be taken to terminate it, giving the City Commission the opportunity to pay the obligation, as it fully intends to do.

Commissioner Grindberg moved the Resolution entitled “Resolution Authorizing the Issuance of a Promissory Note (Subject to Budget Appropriation); Approving Certain Actions and Approving Forms of Loan Documents Required in Connection Therewith” and referred to as Attachment “B” be adopted attached hereto.

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

Applications for Property Tax Exemptions for Improvements Made to Buildings Approved:
a. Valley Christian Counseling Center Inc., 1112 Nodak Drive South (3 year).
b. Thomas G. and Kristen E. Pratt, 2828 27th Street South (3 year).
c. Benjamin E. and Gwen A. Thomas, 3125 38th Avenue South (3 year).
d. Peter J. and Patricia J. Fullerton, 726 Ironwood Court South (3 year).
e. Dakota Family Properties LLC, 1375 10th Avenue North (5 year).
f. William P. Jr. and Barbara A. Suppa, 3359 16th Avenue South, Unit 5 (5 year).
g. Morris P. and Margaret A. Doyle, 609 9th Street South (5 year).
h. Jennifer R. Berntson, 909 25th Avenue North (5 year).
i. James V.W. and Heidi L. Meline, 3538 10th Street South (5 year).

Commissioner Strand moved the applications be approved.

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

Kayla Nelson and Amy LaValla Appointed to the Board of Health:
The Board received a communication from Mayor Mahoney stating that Dr. Christopher Anderson’s term on the Board of Health will expire on December 31, 2019 and Dr. Anderson does not wish to be reappointed. In addition, he said, there is an opening on the Board for a Behavioral Health representative. The Mayor is recommending that Kayla Nelson be appointed to the Board of Health to replace Dr. Anderson and that Amy LaValla be appointed to the Board as a Behavioral Health representative.

Commissioner Grindberg moved Kayla Nelson and Amy LaValla be appointed to the Board of Health for 3-year terms ending December 31, 2022.

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

Action on Precinct Locations for the 2020 Elections Postponed (Moved from the Consent Agenda):
City Auditor Steve Sprague said with an election coming up in June, as part of that process the recommended precinct locations for the June 9, 2020 Primary Election and the November 3, 2020 General Election are presented. The list comes from Cass County, he said, and due to joining with Cass County to do the elections, Cass County is setting the precincts making this more of a notification for awareness.

In response to a question from Commissioner Strand asking for information and history on the statement that efforts are made to avoid using schools due to security related issues, Mr. Sprague said in November 2006, a letter was received from Lowell Wolff, Fargo Public School’s Administrator at the time, who said concerns for students must take priority over using schools as polling sites.

Commissioner Strand said he reached out to one of the School Board members who was there when Mr. Wolff’s letter surfaced and, long story short, the School Board’s position differed from the letter. He said by statute a city has until April 6th to set the polling places and even after that modifications are possible. He said he was on the School Board subsequent to this and his sense is schools could be opened up to polls. There is public sentiment that there is a civic element, he said, and it is cool for kids to see voting and elections. He said the School District has had mill levy votes and the bulk of their own elections were in schools by their own choice. He said he would like to reach out to the Fargo Board of Education for an update regarding the availability of public schools for election precinct locations in light of security related issues prior to the Board approving the 2020 voting locations. He said if they say it is not appropriate to have elections in schools, that is fine; however, at the State level, subsequent to these discussions of safety, security and elections, the State had a whole process for addressing security for polling places in schools and were surprised later to find Fargo was not doing elections in schools.

Mayor Mahoney said he spoke with Fargo School Superintendent Rupak Gandhi who said while security has been upgraded in the schools, his sense is that the School Board would rather not get back into having them as polling places. He said parking is not easy and there are two polling locations in each district and there are 22 schools.

In response to a question from Commissioner Grindberg asking about the role of the County and whether they work with the City and State, Mr. Sprague said this is the primary election for Cass County. Around the year 2000, he said, Fargo citizens were asked whether or not they wanted the City election combined with the County’s, which was approved and the elections have been combined for many years.

Commissioner Grindberg said he would suggest that if the School Board were being asked their opinion, the County needs to be asked for their position as well. He said when there were concerns with safety there is also a real concern over cost and continued challenges for people to work these elections. He said if the expectation is to add more precincts to schools, that may not be realistic based on what the County experienced over the past.

Mr. Sprague said prior to 2006, there were 39 precincts in the City and each precinct had a minimum of five workers so that would be 195 people. The list he is presenting has 15 precincts and less workers and Cass County Auditor Mike Montplaisir has a goal of going to vote centers, which would be similar to the early voting option where one can go to one place in the County to vote rather than being required to vote within one’s precinct. He said with new voting equipment that may happen as soon as 2022 which could mean less precincts with longer hours or more availability. He said in the schools, voting took place in hallways and mixed with kids and there were parking situations. He said if the Board would like him to reach out to the School District and Mr. Montplaisir at Cass County, he will.

Commissioner Strand moved action on precinct locations for the 2020 elections be postponed until an update from the Fargo Board of Education and Cass County regarding the availability of public schools for election precinct locations is received.

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

Commissioner Piepkorn moved that the Board adjourn to 5:00 o’clock p.m., Monday, January 13, 2020.

Second by Grindberg. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 5:44 o’clock p.m.