Board of City Commissioners - October 21, 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, October 21, 2019.
The Commissioners present or absent were as shown following:
Present: Piepkorn, Strand, Mahoney.
Absent: Gehrig, Grindberg.
Mayor Mahoney presiding.

Mayor Mahoney announced that the City Commission will meet in Executive Session for the purpose of attorney consultation in the following pending matter: Kelsh v. City of Fargo, Case No. 3:18-cv-269 to discuss negotiating strategy or provide negotiating instructions to its attorney or other negotiator regarding the pending litigation. To discuss this matter in open meeting will have a negative fiscal effect on the bargaining and/or litigation position of the City. Thus, an Executive Session for said matters is authorized pursuant to North Dakota Century
Code 44-04-19.1 subsections 2 and 9.
Commissioner Piepkorn moved the Commissioners meet in Executive Session in the River Room as authorized by NDCC Section 44-04-19.1 subsections 2 and 9 to discuss said matter.

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 River Room to discuss said matter in Executive Session.
Members present were: Gehrig, Piepkorn, Strand and Mahoney.

The Executive Session closed at 4:47 o’clock p.m. and the meeting reconvened in public session at 5:00 o’clock p.m.
Members present were: Gehrig, Grindberg (via conference call), Piepkorn, Strand and Mahoney.

The Mayor read a message with the following information: Fargo Cass Public Health (FCPH) will hold “Flu Shot Friday” events for the public on October 25th from 8 a.m. to 3 p.m. and November 22nd from 8 to 11 a.m. in the Linden Room at FCPH; citizens who own and reside in a single-family property can take out permits to do residential work on that property and for those who do not want to do the work themselves, the Inspections Department suggests hiring a licensed contractor to ensure building codes are followed and the project is completed; teens are invited to participate in sugar skull decorating events at the Library on October 22nd and 24th; the Library will host a “Golden Girls” themed party and trivia event on October 26th; the Human Relations Commission is seeking nominations for its Martin Luther King Jr. Day Human Relations awards; the cranes at Block 9 were recently lifted 50 feet higher in order to complete the upper levels; this week is MATBUS Week, a fun and interactive opportunity for residents to experience all of the benefits of MATBUS; an outside consultant group has been studying the Red River Regional Dispatch Center, its call volume, staffing and facility needs; the records and evidence divisions have moved to the new Police Department building and the new lobby is open and operational; and a short video of the inside areas of the new Police Department headquarters was shown.

Order of Agenda Approved:
Commissioner Strand moved the Order of the Agenda be approved moving Item No. “14” from the Consent Agenda to the Regular Agenda.

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 Monday, October 7, 2019 be approved as read.

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

Consent Agenda Approved:
Commissioner Strand moved the Consent Agenda be approved as follows:
1. 2nd reading and final adoption of the following Ordinances, 1st reading 10/7/19:
a. Rezoning Certain Parcels of Land Lying in Agassiz Nursery Addition to the City of Fargo, Cass County, North Dakota.
b. Rezoning a Certain Parcel of Land Lying in Agassiz Nursery Addition to the City of Fargo, Cass County, North Dakota.
c. Amending Section 10-0103 of Article 10-01 of Chapter 10 Relating to the Sale of Tobacco, Sale of Tobacco to Minors and Use and Possession by Minors Prohibited, and Sale of Flavored E-Liquid to Minors Prohibited.
d. Amending Section 1-0305(C)(3) of Article 1-03 of Chapter 1 of the Fargo Municipal Code Relating to Classification of Ordinance Violations.
e. Enacting Section 10-0105 of Article 10-01 of Chapter 10, Relating to the Sale of Flavored E-Liquid to Minors Prohibited.
f. Amending Sections 35-0101, 35-0103 and 35-0105 of Article 35-01 of Chapter 35, Relating to the Authority for the Sale of Tobacco Products.

2. Direct the City Attorney’s office to review and update existing Liquor License Ordinances related to violations in order to reflect the suggested changes as presented in the matrix.

3. Applications for Games of Chance:
a. Fargo Youth Hockey Association for a raffle on 1/28/20.
b. Oak Grove Parent Organization for a raffle on 11/1/19.
c. El Zagal Holding Company for a raffle on 2/22/20.
d. United Way of Cass-Clay for a raffle board on 11/6/19.
e. The Village Family Service Center for a raffle on 11/15/19.
f. Centennial PTO for bingo from 10/21/19 to 5/31/20.
g. Heartsprings for a raffle on 12/10/19.
h. Sadie Cameron Benefit for a raffle on 11/8/19; Public Spirited Resolution.

4. Amended Site Authorization for Red River Human Services Foundation at the Fargo Elks Lodge #260.

5. 2020 City Commission meeting schedule.

6. Change Order No. 1 for an increase of $4,550.00 and a time extension to 12/1/19 for Project No. TR-19-A1.

7. Receive and file General Fund – Budget to Actual through September 2019 (unaudited).

8. Sole Source Procurement with Sun Electric, Inc. for an exterior lighting project (AFB17044).

9. Direct City Attorney’s office to review and update Article 13-10 of the Fargo Municipal Code relating to Recreational Aquatic Facilities.

10. Agreement for Services with Samantha Nienow, President of Red Zest Design, Inc.

11. Resolution approving Plat of Prairie Tech Second Addition (Attachment “A”).

12. Bid award to Titan Machinery in the amount of $421,950.00 for purchase of one hydro excavation truck (RFP19154).

13. Bid award for a 5-year lease to Kinetic Leasing in the amount of $33,750.21 per year on one 2019 hook roll off refuse truck (RFP19092).

14. Authorization of staff to submit applications to the NDDEQ Volkswagen Emission Mitigation Program, as stated (moved to the Regular Agenda).

15. Bills in the amount of $9,010,734.26.

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

Purchase Agreement with the Park District of the City of Fargo for Permanent Street and Utility Easement Improvement District No. BN-17-C1 Approved:
The Board received a communication from Land Acquisition Specialist Shawn Bullinger stating an agreement on a final purchase price for a permanent street and utility easement from the Park District in association with Improvement District No. BN-17-C1 has been reached and he is requesting authorization to proceed with the purchase.
Commissioner Strand moved the Purchase Agreement with the Park District of the City of Fargo for a Permanent Street and Utility Easement Improvement District No. BN-17-C1 be approved.

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

Change Order No. 3 for Improvement District No. AN-19-G1 Approved:
Commissioner Strand moved Change Order No. 3 in the amount of $1,815.00 for Improvement District No. AN-19-G1 be approved.

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

Change Order Nos. 1-13 for Improvement District No. PR-17-B1 Approved:
Commissioner Strand moved Change Order Nos. 1-13 in the total amount of $257,202.64 for Improvement District No. PR-17-B1 be approved.

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

Change Order No. 4 for a Time Extension for Improvement District No. BN-19-J1 Approved:
Commissioner Strand moved Change Order No. 4 for a time extension to December 23, 2019 for Improvement District No. BN-19-J1 be approved.

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

Contract Amendment No. 2 with KLJ for Improvement District No. PN-19-A0 Approved:
The Board received a communication from Transportation Division Engineer Jeremy Gorden stating KLJ worked with the ND Department of Transportation (NDDOT) and proposed a four span bridge for 64th Avenue South over I-29. He said a two span and a four span bridge were evaluated while going through a value engineering session to keep the cost of the project down. He said the four span was the most economical design and it was reviewed by NDDOT and approved in the Environmental Document that was completed; however, NDDOT has asked that the City go back to a two span bridge and evaluate the pier spacing for the ultimate three lane I-29 section and a collector distributer frontage road from 76th to 52nd Avenue South. KLJ has assembled a scope of services, he said, and the proposed fee is $56,305.00. He said NDDOT has agreed to pay for this engineering analysis with in-kind construction funds. He said the decision by NDDOT has impacted the progress of the design of the project at I-29 and with a delay in design, the project from I-29 and points west will not be ready for an April 2020 bid and they plan on moving this portion to a November 2020 bid date. He said the plan is to break the project into two parts and bid out the portion between 25th and 33rd Streets in the Spring of 2020 with completion by October 2020.
Commissioner Strand moved Contract Amendment No. 2 with KLJ in the amount of $56,305.00 for Improvement District No. PN-19-A0 be approved.

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

Fargo Civic Plaza, Area 1 “Sodbuster Landscape” Summary and Presentation of Concept Design of Civic Plaza:
Scott Bishop, Bishop Land Design, said now that the first phase of the Fargo Civic Plaza is completed, he wants to present his ideas for the next phases of the project, which he said would be Fargo’s Central Park. He said the riverfront space will offer a day and night venue for residents and visitors and he envisions the plaza going from the prairie setting near the “Sodbuster” sculpture to a riparian forest area closer to the river with a waterfall that would take advantage of storm water. He also shared his vision of a bridge that would go over 2nd Street and the floodwall by City Hall and connect Downtown Fargo to the Red River for pedestrians and bicycles. He also proposed features that would include an outdoor amphitheater for smaller concerts or gatherings, a large open plaza, a designated food truck station, an indoor wetland pavilion and a splash pad. He said some of the areas would offer indoor features for enjoyment in the winter, which could be powered by solar energy.

Commissioner Gehrig said the southeast corner of the plaza is some of the most valuable land in North Dakota and if the City puts a park on that land, he is not okay with that. He said the City should let the private sector come to the City Commission with their ideas and if after reviewing those ideas the City Commission does not agree, at that point consider putting in a park.
Commissioner Gehrig moved to seek proposals from a private company to develop the southeast corner of the plaza area.

Second by Strand. On call of the roll Commissioners Gehrig and Strand voted aye.
Commissioners Grindberg, Piepkorn and Mahoney voted nay.
The motion died for lack of a majority.

Mayor Mahoney said a financial plan, timeline and discussions with City staff are needed before any decisions are made.
Commissioner Piepkorn said Mr. Bishop’s plans and ideas are fantastic and it is fun to see these conceptual ideas; however, it is a lot to absorb and it could set the tone for the City for a century. He said he was very impressed with how the “Sodbuster” and the Native plantings around it came together in the first phase and agrees with Mayor Mahoney and added that he would like to see the plaza come together in phases. He said he realizes the land is very valuable and his vision is to have another Block 9 project in that location; however, as phases come together, that might change what developers will want to see in that location.

Commissioner Grindberg said this is a great discussion and his thoughts are that an actual financial plan is needed for the various phases and a timeline as well as how the City is going to pay for these things. He said he agrees with Commissioner Piepkorn that making a motion now with the development is premature until an overall plan is figured out. He said he thinks a Performing Arts Center is the next priority.

Commissioner Strand said he would like to continue the discussions about the plaza after a final decision on a Performing Arts Center is made as well as plans for the Mid America and Park East sites and the former Police and Public Health buildings. He said Mr. Bishop’s presentation is beyond what anyone could envision and gets everyone thinking about what could be and that is exciting.

Hearing on Alley Vacation of the Alley between Lot 12, Block 26 and a Part of Lot 7 and All of Lots 8-12, Block 25, Roberts Second Addition Continued to 11/18/19:
A Hearing had been set for August 12, 2019 on an application for the Alley Vacation of the alley between Lot 12, Block 26 and a part of Lot 7 and all of Lots 8-12, Block 25, Roberts Second Addition (1001 NP Avenue North and 28 10th Street North).
At the August 12, 2019 Regular Meeting the Hearing was continued to August 26, 2019.
At the August 26, 2019 Regular Meeting the Hearing was continued to this day and hour; however, the applicant has requested the Hearing be continued to November 18, 2019.
Commissioner Piepkorn moved the hearing be continued to 5:15 o’clock p.m. on Monday, November 18, 2019.

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.

Resolution Adopted Approving Right of Way Vacation on a portion of 33rd Street South between Lots 7 through 11, Block 8, Burlington Northern I-29 South Industrial Center Addition and an unplatted portion of Section 11, Township 139 North, Range 49 West (3300 and 3420 Main Avenue):
A Hearing had been set for this day and hour to consider a Petition requesting a Right of Way Vacation on a portion of 33rd Street South between Lots 7 through 11, Block 8, Burlington Northern I-29 South Industrial Addition and an unplatted portion of Section 11, Township 139 North, Range 49 West to the City of Fargo, Cass County, North Dakota.
Current Planning Coordinator Donald Kress said this is an underutilized parcel of land that was never developed as a public street and is unlikely to ever connect to anything. He said this is a City-initiated vacation with the land equally owned by Gerdau Metals Recycling and Crane Johnson Lumber. The land will go back to the two owners, he said.

In response to a question from Commissioner Gehrig asking if the business’ taxes will increase, Mr. Kress said the taxes will not increase due to the fact that the land was always owned by the two businesses and at some point many years ago they granted a right-of-way to the City.
Commissioner Grindberg offered the following Resolution and moved its adoption:
WHEREAS, A Plat has been filed in the office of the City Auditor entitled “Vacation Plat of a portion of 33rd Street South to the City of Fargo in the Northwest Quarter of Section 11, Township 139 North, Range 49 West, of the 5th Principal Meridian, Cass County, North Dakota;” and
WHEREAS, A Hearing was held September 3, 2019 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 October 7 and 14, 2019 that a Hearing would be held in the Commission Chambers, City Hall, Fargo, North Dakota at 5:15 p.m., October 21, 2019 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 “Vacation Plat of a portion of 33rd Street South to the City of Fargo in the Northwest Quarter of Section 11, Township 139 North, Range 49 West, of the 5th Principal Meridian, Cass County, North Dakota” 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 Piepkorn. On the vote being taken on the question of the adoption of the Resolution Commissioners Grindberg, Piepkorn, Gehrig, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the Resolution was adopted.

Application Filed by Casa Mexico, Inc. d/b/a Casa Mexico Mexican Restaurant for an Alcoholic Beverage License Approved:
A Hearing had been set for this day and hour on the application filed by Casa Mexico, Inc. d/b/a Casa Mexico Mexican Restaurant for a Class "F" Alcoholic Beverage License at 4950 13th Avenue South, 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.
Commissioner Strand moved the application be approved.

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.

Special Assessments for 2018 New Construction and Reconstruction of City Ordered Sidewalks Approved (Project No. SN-18-B):
A Hearing had been set for this day and hour on the special assessment list for the expense of construction or rebuilding of sidewalks ordered by the Board of City Commissioners. The 2018 New Construction and Reconstruction of City Ordered Sidewalks were constructed by firms employed and under contract with the City at the expense of lots or parcels of land adjoining such sidewalks and approaches.
City Auditor Steve Sprague said there are differences in Century Code and that is why the sidewalks and improvement district special assessments are separate items on the agenda. He said notices were sent out regarding the City ordered sidewalks, bids were awarded and 58 projects were completed with fees totaling $114,389.67.

In response to a question from Commissioner Gehrig asking if this is at the 1 percent over bond rate, Mr. Sprague said it is and is tied to bonds that have already been issued.

In response to a question from Commissioner Gehrig asking why he, as a City Commissioner, never had a say in how much the rate is and why the City bonded before the projects were assessed, Mr. Sprague said the bond covenants call for the 1 percent over bond rate, which the City Commission approved at the time the bonds were issued.
Commissioner Piepkorn moved that the Special Assessments for 2018 New Construction and Reconstruction of City Ordered Sidewalks in the City of Fargo, North Dakota be and the same is hereby approved and confirmed and ordered filed in the office of the City Auditor, that the City Auditor’s Office be instructed to proceed to collect the assessments in the manner provided by law and that the interest rate be set at 1% per annum over the net rate on bonds financing said projects.

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.

Special Assessments List for Various Improvement Districts Approved:
A Hearing had been set for this day and hour on the special assessments list for the construction of the following Improvement Districts in the City of Fargo, North Dakota, all having been approved by the Special Assessment Commission on September 19, 2019; set the interest rate at 1% per annum over the net rate on bonds financing said projects:
Sanitary Sewer, Water Main, Storm Sewer, Site Grading, P.C. Concrete Paving, Street Lights and Incidentals Improvement District No. BN-17-A.
Sanitary Sewer, Water Main, Storm Sewer, Paving, Street Lights and Incidentals Improvement District No. BN-18-A.
Sanitary Sewer, Water Main, Storm Sewer, Paving, Street Lights and Incidentals Improvement District No. BN-18-B.
Sanitary Sewer, Water Main, Storm Sewer, Paving, Street Lights and Incidentals Improvement District No. BN-18-E.
Storm Sewer, P.C. Concrete Paving and Incidentals Improvement District No. BN-18-G.
Sanitary Sewer, Water Main, Storm Sewer, Concrete Curb and Gutter, Asphalt Pavement, Lighting and Incidentals Improvement District No. BN-18-J.
Storm Sewer, P.C. Concrete Paving, Street Lights and Incidentals Improvement District No. BN-18-K.
Sanitary Sewer, Water Main, Storm Sewer, Concrete Curb and Gutter, Asphalt Pavement, Lighting and Incidentals Improvement District No. BN-18-L.
Water Main Replacement, Street Reconstruction and Incidentals Improvement District No. BR-16-F.
Grading, P.C.C. Pavement, Storm Sewer, Watermain, Traffic Signals, Street Lighting, Sidewalks and Incidentals Improvement District No. BR-18-C.
Water Main Replacement, Storm Sewer Replacement, Street Reconstruction and Incidentals Improvement District No. BR-18-E.
Storm Sewer Lift Station Modifications and Incidentals Improvement District No. NR-17-A.
P.C. Concrete Pavement, Storm Sewer, Sanitary Sewer, Pedestrian Box Culvert, Lift Station, Traffic Signals, Street Lighting, Sidewalk and Incidentals Improvement District No. PR-17-B.
Bridge Modifications, Shared Use Path, Street Lighting and Incidentals Improvement District No. SN-16-B.
a.Receive protest.
Shared Use Path and Incidentals Improvement District No. SN-16-C.
Traffic Signal Improvements and Incidentals Improvement District No. TN-16-F.
Raised Pedestrian Crossing, Radius Improvements and Incidentals Improvement District No. TN-18-A.
Sanitary Sewer, Water Main, Storm Sewer and Incidentals Improvement District No. UN-18-B.
City Auditor Steve Sprague said the 18 projects presented in this item have been created, the districts established, the projects constructed and inspected and the final costs assembled, certified and presented to the Special Assessment Commission, who determined the benefit of each project. The total amount for the projects, he said, is $43,192,499.64 and the special assessed amount is $31,711,537.46 affecting 8,443 parcels. He said one protest was received for Improvement District No. SN-16-B.

Nathan Everson, 1123 6th Street South, said he was out of state when the Special Assessment Commission met and he did not get a chance to speak. He said he is protesting Improvement District No. BN-17-A, the 19th Avenue North project in the Horse Park and Mid America Steel area. He said he owns lots on North Sheyenne Loop in that quadrant and the lots were assessed ranging from $1.05 up to $1.67 per square foot. What has happened, he said, is his lots are getting a trickle affect with specials coming in over time from projects on I-29 to 45th Street, 45th Street to the Horse Park and everything on North Sheyenne Loop; however, the bigger problem is his lots for the 19th Avenue North project were assessed at $1.67 per square foot and neighboring lots were assessed much less, with Mid America assessed only .73 a square foot. He said it is not a secret that the 19th Avenue North project was done for Mid America and the City Commission would do well to look into how this project is being assessed. He said he has put in many hours trying to put together an overall spreadsheet.

In response to a question from Commissioner Gehrig asking how much is his assessment, Mr. Everson said the amount is more than $600,000.00, essentially double what the land is worth.

Special Assessments Coordinator Dan Eberhardt said Mr. Everson’s lots are on a local street, some abut 19th Avenue North and with commercial lots, the City looks at that as a double-fronting lot; therefore, in a commercial setting on an arterial direct front the entire lot is assessed. He said Mid America is direct fronting on 19th Avenue North only. Some of Mr. Everson’s lots are also on a local street, he said, so that is where the value of the special assessment or the benefit is higher.

In response to a question from Mayor Mahoney asking if there could be any relief due to the fact that he thinks $600,000.00 is too much, Mr. Eberhardt said he thinks it is a good spread, it is what has been done in the past and he is staying consistent with current policies and practices.

Commissioner Piepkorn said current policies need to be followed and he acknowledged that the City is talking about changing the policies; however, this goes back to arterials which are the items that blow these things up, much like what happened on North Broadway.

In response to a question from Commissioner Piepkorn asking if there is anything that can be done for Mr. Everson, Mr. Eberhardt said there is nothing the City can do at this time to change the policy. He said he is following the policy and procedure to the letter of what he can based on the City’s Infrastructure Policy and State Statute.

Assistant City Engineer Tom Knakmuhs said there has been a lot of talk amongst his staff about arterials and the way the benefits were determined for the 19th Avenue North project using current policies. He said the Special Assessment Commission approves the benefit and then a value is tied to the benefit. He said the City Commission has the ability to buy down the cost; however, the benefit cannot change.

In response to a question from Mayor Mahoney asking if the City Commission can use the buy-down option and would that be fair, City Attorney Erik Johnson said the City Commission would have to quantify the project, figure out what other properties were assessed and then be equitable.

Mr. Eberhardt said with Improvement District No. BN-17-A, it was the same front foot and square foot cost that was charged to Mid America, which is a much larger tract. He said Mr. Everson also has other specials such as the local that Mid America does not have due to the fact that they direct front 19th Avenue North.

Mr. Knakmuhs said there was no federal aid on 19th Avenue North and everything in that project follows cap costs. He said he agrees there are a number of projects that are hitting Mr. Everson’s parcel all at the same time; however, this project and all projects on the list were special assessed according to policy.

Commissioner Piepkorn moved that the special assessment list be approved, excluding Improvement District No. BN-17-A in order for staff to try to work out something more compatible.

Second by Gehrig.

Commissioner Gehrig moved to amend the motion setting the interest rate at 0% per annum.
The motion died for lack of a second.

In response to a question from Commissioner Piepkorn asking if the City is required to carry a 1 percent addendum by state statute, Mr. Costin said there is a provision in state law that a City can levy up to 1.5 percent as a markup on the financing costs of special assessment bonds, which covers potential delinquencies and the cost of issuance of the debt, which is expensive at about 1.5 percent of the face value. He said in 2004 the City lowered the percentage from the statutory maximum of 1.5 percent down to 1 percent, which is the current policy. He said the City Commission already acted on the Resolution authorizing these special assessments at 1 percent; therefore, at this point it is not negotiable nor is it the City Commission’s decision. The Special Assessments Taskforce is taking up the recommendation to lower the fee, he stated, which staff is currently evaluating and will be bringing forward with a recommendation.

In response to a question from Commissioner Gehrig asking in 2016, 2017 and 2018 how much money was taken out of the special assessment fund and put into the general fund, Mr. Costin said $1.4 million each year.

Commissioner Gehrig said the City tacks on the 1 percent to cover potential delinquencies in payments and the extra funds are used, in part, to pay a share of City reconstruction and construction projects for streets, water and sewer lines and other infrastructure work. He said he could not find any delinquencies on City specials and what the City is doing is sneaky.

Mayor Mahoney said he rejects that characterization and what Commissioner Gehrig said is false. He said the City is following state law in making the transfers and if Commissioner Gehrig wants changes in state or City laws, he should work on it.

Commissioner Strand said the Special Assessments Taskforce is suggesting a .75 percent rate and for now, the simple fact is that these assessments have already been approved and the City Commission cannot undo them. He said he is looking forward to studying this and getting information; however, this has already been decided and although he wishes he could reflect the Taskforce recommendations, it is not doable now.

In response to a question from Mayor Mahoney regarding federal money that was lost with Improvement District No. SN-16-B, Mr. Knakmuhs said one test regarding aggregate used in concrete materials was not performed and due to that, federal aid was reduced by $48,000.00. He said the City paid for that shortfall with sales tax dollars.

Mr. Everson said he would be happy to meet with anyone in person to discuss his specials. He said he met with Mr. Eberhardt one-on-one several months ago and he was very gracious. He does not portend there is anything nefarious or underhanded going on; however, from the general public’s perspective, information about special assessments is not easy to find and when he did find it, it was not easy to understand. He said after many hours of studying, he now understands how the values are calculated; however, he does not think anyone can say that his properties are benefitting four times the value of the lot. He said the specials are for a road that he quite honestly did not need and he said that is overkill. He said he is not getting four times the value that Mid America is getting and the City of Fargo lot directly across the street from his lot was assessed at .04 cents per square foot versus his at $1.67.

Commissioner Grindberg said 19th Avenue North is an arterial road, making it a more expensive project and residents had the most complaints about those projects and how they are assessed. He said the Special Assessments Taskforce’s recommendations will be discussed at a future City Commission meeting and possible changes could lower bills for residents. He said the high focus of the Taskforce was arterials and with the Prairie Dog Fund and all of those things are changed, arterials will change the most.

Dave Engebretson, 2902 38 1/2 Avenue South, said he is protesting Improvement District No. SN-16-B, which included a shared use path on 40th Avenue South that was not needed. He said the City took out a perfectly good sidewalk, replaced it and added five feet to the width then charged citizens a half million dollars. He said the City did not contribute to the project and he does not think he has any benefit whatsoever. He protested this project at the Special Assessment Commission before it started in 2016, he stated, and protested in a letter. He said if the City reconstructs a sidewalk there should be no liability for special assessments.

Mr. Eberhardt said this particular project was considered new construction due to the fact that it was a new shared use path.

Mr. Engebretson said the City only used front footage on 700 feet of property for this project, which is only a fraction of the number of houses in this area. He also said more than 28 properties were exempt and state law does not allow exemptions other than cemeteries.

Mr. Eberhardt said his department did catch one error in this project and an audit was done. He said some lots in this project needed to be removed as they were flood buyout lots and the City cannot assess a non-buildable lot.

Mr. Engebretson stated that according to state law, the only property that can be exempt from special assessments is cemeteries.

Mr. Eberhardt said that is not correct and there is case law to prove it.

In response to a question from Commissioner Strand asking what his experience has been with special assessments, Mr. Engebretson said he has been a member of the Cass County Special Assessment Commission for the past 18 years.

Mr. Sprague said he wants the Commissioners to understand the effects of continuing Improvement District No. BN-17-A until the next City Commission meeting. He said State law requires the City to certify to the County what the special assessment collections will be on November 1st every year. Since the next City Commission meeting would be after that date, he said, the City would not be able to include Improvement District No. BN-17-A if there is a vote to defer or delay it. He said Improvement District No. BN-17-A is a $12 million project, which has been bonded and payments will be due.

In response to a question from Mayor Mahoney asking Commissioner Piepkorn if he would like to change his original motion to reflect Mr. Sprague’s concerns, Commissioner Piepkorn said he wants to leave it the way it is. He said it is important that the City send a message that it is going to do something to try to resolve this. If his motion fails, he said, someone else could propose it the way they want it. He said he knows this is going to cause some heartburn and money issues; however, it is important that the City work on some changes and something needs to be done. The same thing happened on Broadway, he said, and many other places and the City has to fix it.

In response to a question from Mayor Mahoney asking if this vote will jeopardize the City’s bonds, Mr. Costin said this is a major project, it is $12 million, which is not chump change, it has been pledged to the bond issue and it will be used as pledge revenue once it is assessed. He said if the Commission wants to take the time to resolve this and get through the discussions, he does not have a problem with that; however, there may be some added interest costs to carry this another year.
Commissioner Gehrig moved to amend the original motion approving the special assessment list for the construction of the above listed Improvement Districts be and same are hereby approved and confirmed and ordered filed in the office of the City Auditor, that the City Auditor’s Office be instructed to proceed to collect the assessments in the manner provided by law and that the interest rate be set at 1% per annum over the net rate on bonds financing said projects and that Improvement District No. BN-17-A be discussed at the 11/4/19 meeting.

Second by Piepkorn.

Commissioner Strand said he is hearing mixed messages and some are saying not to do this and others are saying the City Commission can do it, yet Commissioner Gehrig is always asking what the costs are before anything is approved.

Mayor Mahoney said Mr. Everson missed the Special Assessment Commission meeting and if after having a discussion with Mr. Eberhardt, if his assessment is changed and if it affects other properties in that area, it will come to the City Commission for a separate vote.

Commissioner Gehrig said, for the record, he is against approving this at all. Commissioner Piepkorn’s motion is not workable, he said, which is why he is amending it; however, he is going to vote against it due to the fact that it is still at 1 percent.

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

On call of the roll on the original motion Commissioners Piepkorn, Grindberg, Gehrig, Strand and Mahoney voted nay.
The motion died for lack of a majority.

In response to a question from Commissioner Strand asking how long protests of special assessments can continue, Mr. Eberhardt said a project can be protested at the inception, after the notices are sent out, at the Special Assessment Commission level and then at the City Commission meeting. If after all these avenues a person still does not feel they are getting a remedy, he said, they can take legal action against the City, they can appeal to the County and it can then go to a civil action.

At 6:32 p.m. the Board took a five-minute recess.
After recess: All Commissioners present. Mayor Mahoney presiding.

Site Access Agreement Between the City and Bortnem Family LTD PTS Approved:
The Board received a communication from Planning and Development Director Nicole Crutchfield stating the City received $400,000.00 in grants from the Environmental Protection Agency (EPA) to perform brownfield assessments on properties within the City. She said the funds are for performing assessments on properties suspected or known to have contamination such as petroleum, lead or asbestos.
Assistant Planning and Development Director Mark Williams said the City received requests for environmental assessments at 209, 203 and 219 Northern Pacific Avenue, 65 3rd Street North and 72 2nd Street North. He said work at these sites will include a Phase I Environmental Site Assessment (ESA) to observe current conditions of the properties and then a Phase II ESA will be done of building materials containing asbestos, soil, soil vapor and/or groundwater sampling. Both the EPA and the ND Department of Health have approved the site eligibility determination to use the grant funds for this site, he said, and the agreement has been reviewed by the City Attorney.
Commissioner Piepkorn moved the Site Access Agreement with Bortnem Family Ltd. Partnership 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.

Resolution Authorizing the Issuance of Not to Exceed $14,015,000.00 City of Fargo, North Dakota Taxable Refunding Improvement Bonds, Series 2019B, Prescribing the Terms and Covenants Thereof, and Creating a Fund for the Payment Thereof:
The Board received a communication from Finance Director Kent Costin, stating the City’s financial adviser, Baker Tilly, monitors the City’s outstanding long-term debt and as part of this monitoring process, they provide analysis of opportunities to refinance certain debt issues. He said in August, long-term interest rates declined and Baker Tilly recommended refinancing the City’s Refunding Improvement Bonds, Series 2011A for interest rate savings and the Finance Committee approved this recommendation. The Finance staff and advisers are planning to issue this debt on October 23rd, he said, and Dorsey & Whitney, the bond counsel, provided the authorizing resolution that sets parameters for the bond sale. A competitive bid process will be used on this issue, he said.
Terri Heaton, Baker Tilly, said it was her recommendation that the City refinance this debt due to the fact that refinancing rates have fallen significantly in the last year.

In response to a question from Commissioner Gehrig asking if this is special assessment debt, Ms. Heaton said it is. She said the debt was issued in 2011 and as the City’s financial adviser, she looks for opportunities to refinance for lower interest rates. She said the savings to the City from refinancing this debt would be about $1,170,000.00, or about 8 percent of the total amount financed. She said she plans to receive bids on October 23rd, which is a Wednesday and is a typically slow day for bonds; therefore, Fargo’s bonds will attract more investors and Fargo has a high credit rating. She said the Resolution also delegates the approval authority to the Auditor, Mayor and Finance Director.

In response to a question from Commissioner Gehrig asking if state law says the City cannot reduce the specials on other people once they are issued, how can the City get a special lower rate, Ms. Heaton said all she is doing is taking this same pledge and getting a lower interest rate for the City; however, residents’ special assessments are not going to be reduced.

Commissioner Gehrig said the City is making money off special assessments and that needs to change.

Commissioner Piepkorn moved that the Resolution titled “Resolution Authorizing the Issuance of Not to Exceed $14,015,000.00 City of Fargo, North Dakota Taxable Refunding Improvement Bonds, Series 2019B, Prescribing the Terms and Covenants Thereof, and Creating a Fund for the Payment Thereof” and referred to as Attachment “B” be adopted and attached hereto.

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

State Water Commission Request for Cost Reimbursement for FM Diversion Flood Project Costs Approved:
The Board received a communication from Finance Director Kent Costin stating the State Water Commission is requesting $111,960.91 for cost reimbursement for the FM Metropolitan Area Flood Risk Management Project for September 2019. He said the costs are for work related to a temporary road in Cass County.
Commissioner Gehrig moved the cost reimbursement request in the amount of $111,960.91 for the FM Diversion Flood Project be approved as presented.

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

Applications for Property Tax Exemptions for Improvements Made to Buildings Approved:
a. Wade L. and Linn M. Webb, 2818 Lilac Lane North (3 year).
b. Paul A. and Amy Sjurseth, 1513 39th Avenue South (3 year).
c. Clayton and Juliann Kramer, 81 32nd Avenue Northeast (3 year).
d. John and Susan Deutsch, 220 8th Street South, Unit C1 (3 year).
e. Mary Jo Marty Living Trust, 2920 Southgate Drive South (5 year).
f. Dane J. Sypnieski, 818 25th Street North (5 year).
g. Red River House Buyers LLC, 817 32nd Street South (5 year).
h. Richard and Carlotta Bruns, 1420 7th Avenue South (5 year).
i. Matthew and Amanda Quintus, 1140 5th Street North (5 year).
j. Andrew Thill and Alexandra Vruno, 1238 2nd Street North (5 year).
k. Kip M. and Nancy J. Kaler, 1301 Oak Street North (5 year).
l. Darwin T. and Corine C. Wittmer, 3130 8th Street North (5 year).
m. BCH Builders LLC, 3101 Maple Street North (3 year).
n. Brooks C. Johnson, 85 Meadowlark Lane North (5 year).
o. Sherry A. Stewart, 1630 3rd Street North (5 year).
p. Dawn M. Grieg and Sarah A. Stensland, 821 3rd Street North (5 year).
q. Laurie K. Blunsom, 357 Elmwood Avenue South (5 year).
r. Timothy M. and Janice K. Stoa, 49 35th Avenue Northeast (5 year).
s. Ruth A. Weber, 2016 7th Street North (5 year).
t. Cari N. Lake, 3419 Maple Street North (5 year).
u. Lisa Olander Living Trust, 2939 Southgate Drive South (5 year).
v. Justin Slack, 1441 12th Avenue South (5 year).
w. Donald W. and Marilyn L. Hanson, 2513 9 1/2 Street North (5 year).
City Assessor Ben Hushka said these items typically in the past have been on the Consent Agenda; however, will be on the Regular Agenda from now on. He stated that homeowners can apply for these exemptions and the three-year or five-year exemption is based on the added value a remodeling or addition project adds to a property.

In response to a question from Mayor Mahoney asking if property owners can apply for more than one exemption, Mr. Hushka said for each separate remodeling project, a homeowner can receive an exemption if it meets the value-added parameters.
Commissioner Piepkorn moved the applications be approved.

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

Mike Dawson and Matthew Boreen Reappointed to the Historic Preservation Commission:
The Board received a communication from Mayor Mahoney recommending that Mike Dawson and Matthew Boreen be reappointed to the Historic Preservation Commission.
Commissioner Gehrig moved Mike Dawson and Matthew Boreen be reappointed to the Historic Preservation Commission for three-year terms ending October 31, 2022.

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

Art Rosenberg Appointed to the Planning Commission:
The Board received a communication from Mayor Mahoney recommending that Art Rosenberg be appointed to the Planning Commission to fill the vacancy created by the resignation of Shara Fischer.
Commissioner Gehrig moved Art Rosenberg be appointed to fill the unexpired term of Ms. Fischer on the Planning Commission for a term ending June 30, 2021.

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

Jared Heller Appointed to the Board of Adjustment:
The Board received a communication from Mayor Mahoney recommending that Jared Heller be appointed to the Board of Adjustment as an alternate member. He said when the City Commission appointed Mike Mitchell as a regular member of the Board of Adjustment, the Board was left without an alternate member. Staff and citizens have experienced the inability to act on matters before the Board of Adjustment numerous times due to insufficient numbers of members being present. Therefore, he said, it is essential that a full contingent of members plus an alternate be appointed to the Board.
Commissioner Gehrig moved Jared Heller be appointed as an alternate member of the Board of Adjustment for a term ending June 30, 2020.

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

Submission of Applications for the NDDEQ Volkswagen Emission Mitigation Program Approved:
The Board received a communication from Director of Operations Ben Dow stating that as part of the decree with Volkswagen Corporation (VW) regarding installation and use of emission testing devices in its vehicles, VW agreed to pay $14.7 billion to settle. An environmental mitigation trust fund was established for the use of funding a variety of diesel emission reduction projects, he said, and North Dakota’s allocation is expected to be $8,125,000.00 over a three-year period. He said on behalf of the State of North Dakota, the North Dakota Department of Environmental Quality (NDDEQ) is the designated beneficiary for the state and has developed a mitigation plan to provide an outline on how the trust funds may be utilized and spent within the state. Nine eligible categories were developed and staff has discussed possible projects, he said, identifying two projects for which they would like to apply. The first project, he said, is for light duty electric vehicle supply equipment installed on City-owned property and he is proposing four 80-amp vehicle-charging units in the new City Hall parking lot. He said another category allows government owned large diesel trucks produced between 1992 and 2009 to be eligible for a 50 percent cost share of replacement. He said a 1997 Fire Department ladder truck outfitted with a pre-emission diesel engine and identified in the City’s 2021 vehicle replacement budget, falls within the application requirements.

John Bagu, 4259 31st Avenue South, said VW was caught cheating on its emissions standards and it took almost three years to complete this settlement. He said VW software was embedded so its cars were able to tell when they were being tested and when they were driving normally. He said all of the emission controls were made that way on purpose, designed to pass the emissions tests but in reality polluted as much as any other vehicle. VW did not want emission controls to impact the performance of its vehicles, he said. The first round of funds is about $2.7 million and the deadline to apply for the funding is the end of this year. The funds will be distributed throughout the state according to population and Fargo and Cass County have about 25 percent of the state population. He said Moorhead has a D/C charging stand and Fargo does not and he is happy about the application for a stand for Fargo. He will also be pushing for electric school buses with the VW money, he said. He said he realizes it will be the Fargo Public Schools that decides on bussing options; however, children in Fargo are currently transported to school in diesel-powered buses, which are the most polluting vehicles on the planet.

Commissioner Strand said he is happy that the City is looking into greener options and he hopes that the City become less dependent on fossil fuels.
Commissioner Strand moved that staff be authorized to submit the applications to the NDDEQ Volkswagen Emission Mitigation Program as stated.

Second by Gehrig. On call of the roll Commissioners Strand, Gehrig, Grindberg, Piepkorn 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, November 4, 2019.

Second by Gehrig. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 6:51 o’clock p.m.