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Fargo City Commission - March 23, 2020 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 5:00 o'clock p.m., Monday, March 23, 2020.

The Commissioners present or absent were as shown following:
Present: Gehrig (via conference call), Grindberg, Piepkorn, Strand (via conference call), Mahoney.
Absent: None.
Mayor Mahoney presiding.

The Mayor read a message with the following information: The COVID-19 situation is unprecedented as the nation faces a viral pandemic. There was a 500 percent increase in confirmed infections in the United States last week, and North Dakota went from 3 to 32 confirmed cases in less than a week. The City has taken proactive measures to slow the spread via facility closures, remote work for many employees and employee travel suspensions, all in a goal to slow the spread and flatten the curve. If the curve is not flattened, the healthcare system right here in Fargo will not be able to keep up. He asked all residents to do the right thing, to physically distance and to stay home as much as possible.

Order of Agenda Approved:
Commissioner Piepkorn moved the Order of the Agenda be approved moving Item No. “12” from the Consent Agenda to the Regular Agenda, adding an extra item to the beginning of the Regular Agenda for update on the COVID-19 pandemic and adding an extra item to the end of the Regular Agenda to consider a Resolution Moratorium Pertaining to the Retail Sale of Alcoholic Beverages.

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

Minutes Approved:
Commissioner Grindberg moved that the Minutes of the Regular Meeting of the Board held on March 9, 2020 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. 1st reading of an Ordinance Amending Sections 21-0601 and 21-0603 of Article 21-06 of Chapter 21 of the Fargo Municipal Code Relating to Flood Plain Management.

2. 2nd reading and final adoption of the following Ordinances; 1st reading on 3/9/20:
a. Rezoning a Certain Parcel of Land Lying in Osgood Townsite Eleventh Addition to the City of Fargo, Cass County, North Dakota.
b. Rezoning Certain Parcels of Land Lying in Bentley Place First Addition to the City of Fargo, Cass County, North Dakota.

3. Amended Site Authorization for Prairie Public Broadcasting, Inc. at Peppers.

4. Applications for Games of Chance:
a. Home Builders Care of Fargo-Moorhead Foundation for a raffle and raffle board on 4/3/20.
b. Fargo Lions calendar sports pool from 9/14/20 to 12/28/20.

5. Extension of the Flood Emergency Declaration.

6. Contract Amendment No. 1 with Houston Engineering in the amount of $28,500.00 for Project No. FM-19-A0.

7. Contract Amendment No.1 with Houston Engineering in the amount of $11,000.00 for Project No. FM-19-B0.

8. Contract Amendment No. 1 with Houston Engineering in the amount of $42,000.00 for Project No. FM-19-C0.

9. Contract Amendment No. 1 with Houston Engineering in the amount of $47,000.00 for Project No. FM-19-E0.

10. Changes to the Overdimensional Vehicle Policy and Resolution Establishing Truck Routes as shown on the Official Truck Route Map as presented.

11. Amendment (fourth) to Developer and Road Use Agreement with Block 9 Partners, LLC.

12. Right of Way Use Agreement with PSJ Acquisition LLC dba Prairie St. Johns and ALPA Construction, Inc. (moved to the Regular Agenda).

13. Contract award for Public Information Coordinator Services to Flint Communications, Inc. (Project No. MS-20-B0).

14. Resolution Approving Plat of Commerce on 12th Sixth Addition (Attachment “A”).

15. ND Department of Transportation Traffic Safety Contract Grant in the amount of $2,150.00 for speed enforcement (CFDA #20.600).

16. NDDES grant funds for the purchase of a Rook NIJ Level IV Armored Critical Incident Vehicle for use by the Red River Valley SWAT Team (CFDA #97.067) (SSP20040).

17. Bid award to Bert’s Truck Equipment and Wallwork Truck Center for a 6-year lease of one service truck with crane at a combined cost of $112,417.00 (RFP20055).

18. Contract extension with Aqua-Pure, Inc. for the calendar year 2020 to supply water treatment chemicals.

19. Contract and bond for Project No. PR-20-A1.

20. Bills in the amount of $7,560,408.33.

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.

Contract Amendment No. 3 for Improvement District No. BR-18-A2 Approved:
Commissioner Grindberg moved Contract Amendment No. 3 for an increase of $45,037.78 for Improvement District No. BR-18-A2 be approved.

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.

Prepayment to BNSF for Inspection and Flagging Services Approved (Improvement District No. BR-19-A1):
The Board received a communication from the Public Works Projects Evaluation Committee (PWPEC) stating prepayment for services for railroad inspection and flagging services for Improvement District BR-19-A1 are required prior to scheduling. They said the cost for the services is estimated to be less than $10,000.00 based on 3 days of work within BNSF property and any additional time will be billed upon completion or any unused funds will be refunded back to the City.

Commissioner Grindberg moved the prepayment to BNSF for inspection and flagging services in the amount of $10,000.00 for Improvement District No. BR-19-A1) be approved.

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.

Memorandum of Offer to Landowner for a Temporary Easement from David W. and Janet D. Zaeske Approved (Improvement District No. BN-20-C1):
The Board received a communication from Land Acquisition Specialist Shawn Bullinger requesting authorization to proceed with a Memorandum of Offer to Landowner for a Temporary Easement from David W. and Janet D. Zaeske in association with Improvement District No. BN-20-C1 as recommended 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 for the Purchase of a Temporary Easement from David W. and Janet D. Zaeske in association with Improvement District No. BN-20-C1 be approved.

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.

Memorandum of Offer to Landowner for Permanent and Temporary Easements from Huber Properties, LLP Approved (Improvement District No. BN-20-C1):
The Board received a communication from Land Acquisition Specialist Shawn Bullinger requesting authorization to proceed with a Memorandum of Offer to Landowner for Permanent and Temporary Easements from Huber Properties, LLP in association with Improvement District No. BN-20-C1 as recommended 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 for Permanent and Temporary Easements from Huber Properties, LLP in association with Improvement District No. BN-20-C1 be approved.

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.

Update on the COVID-19 Virus:
Brenton Nesemeier, North Dakota State Health Department (NDSHD) Field Epidemiologist said the time it takes for test results to come in has improved. He reminded citizens that screening is required and they are to call their health care provider before coming in for testing.

Desi Fleming, Director of Fargo Cass Public Health, said for those in the community who do not have an established health care provider, both Sanford and Essentia are offering testing. She said individuals need to call ahead and meet the established criteria. She said Fargo Cass Public Health established its Health Department Operation Center last Tuesday. She said it is beneficial to have Mr. Nesemeier in their building and to be able to work closely for this event. Some staff have been making plans for this for months and many hours have been put in these last few weeks, she said. This is a NDSHD led event, she stated, and the Fargo Cass Public Health Department handles it locally under their direction. Contact tracing has not been required yet, she said, since there is only one case in Cass County; however, nurses are trained to assist Mr. Nesemeier if needed. Information is being entered into the new mass notification system, she said, and her department is assisting in giving direction on finding medical supplies and other things like fit testing for N95 masks and adapting the information that comes from the CDC and NDSHD. She said interns from the Emergency Preparedness program at NDSU have been helpful working with the Health Department in information gathering. Along with all this, she said, essential services for the Homeless Shelter, County Jail nursing, home care clients and clinic continue. She stressed the importance of good hygiene prevention practices, social distancing and staying home, if possible. It is important to stop the spread, slow it down and flatten the curve to stretch it out, she said, so the health care partners do not get overwhelmed.

Commissioner Grindberg said he feels it is important to see and hear the planning that goes on, which is similar to flood events in the past, and to recognize the preparedness and professionalism displayed the last couple of weeks. He said it was obvious to him in a meeting of department heads that the City has a consummate group of professionals who are well engaged and working very hard. He thanked Mayor Mahoney for his leadership and in working with other cities, the county and Governor’s office. He said he keeps his hand on the rudder while sending the message of being calm but strategically methodical in approach. He also thanked Governor Burgum who he said is doing an amazing job leading the state and interfacing local communities.

Commissioner Strand said he agrees with all Commissioner Grindberg said and the community needs to be proud of the staff, public health and emergency response workers and all those in the trenches who have rolled up their sleeves to protect, educate and inform. He asked Ms. Fleming to tell her staff their long hard hours are appreciated by the entire region. He said the City has had experience with floods and needs to be certain not to be underprepared.

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 $114,099.62 for cost reimbursement for the FM Metropolitan Area Flood Risk Management Project for January 2020.

Commissioner Piepkorn moved the cost reimbursement request in the amount of $114,099.62 for the FM Diversion Flood Project be approved as presented.

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

Hearing on Prairie Grove Fifth Addition Continued to April 6, 2020:
A Hearing had been set for this time and date to consider a change in zoning from LC, Limited Commercial with a C-O, Conditional Overlay to MR-3, Multi-Dwelling Residential on Prairie Grove Fifth Addition; however, staff has requested the Hearing be continued to April 6, 2020.

Commissioner Piepkorn moved the hearing be continued to 5:15 o’clock p.m. on Monday, April 6, 2020.

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

Actions Related to the Community Development Block Grant (CBDG)/HOME Investment Partnerships Programs Continued to April 6, 2020:
A Hearing had been set for this time and date to consider actions related to the Community Development Block Grant (CBDG)/HOME Investment Partnerships Programs; however, staff has requested the Hearing be continued to April 6, 2020.

Commissioner Piepkorn moved the hearing be continued to 5:15 o’clock p.m. on Monday, April 6, 2020

Second by Grindberg. On call of the roll Commissioners Piepkorn, Grindberg, Strand, Gehrig 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. Timothy Scott Rezac, 1814 23rd Avenue South (5 year).
b. Scott D. and Taylor E. Mertz, 1744 8th Street South (5 year).
c. Colin Enz, 319 Broadway North Unit 304 (5 year).
d. Michael R. Norris, 622 University Drive South (5 year).
e. Magwarehouse LLP, 3000 7th Avenue North (5 year).

Commissioner Piepkorn moved the applications be approved.

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

Resolution Moratorium Pertaining to the Retail Sale of Alcoholic Beverages Adopted:
Commissioner Grindberg said Governor Burgum closed bars and restaurants last week, allowing only carryout and delivery. He said he heard of a similar situation in Texas where a temporary moratorium was passed to allow alcoholic beverages to be delivered with a meal. He said he had a discussion with City Attorney Erik Johnson about what options the City would have and Mr. Johnson drafted a Resolution to allow a 30-day moratorium for on-sale delivery. He said while restaurateurs say this will not solve everything, it is an opportunity for them to keep business.

City Auditor Steve Sprague said he has had calls asking what the bars and restaurants can do outside of their normal procedure. He said this fits in that they can offer extended services and enhance their sales.

Assistant City Attorney Nancy Morris said this is set up for 30 days, expiring on the date of a City Commission meeting so it would be available for consideration at that time. It changes the definition of on-sale, which currently references “on the licensed premises,” she said, and would be for take-out curbside or delivery. All other applicable laws would apply, she said, such as being in sealed containers and those who deliver would have to meet serving guidelines.

Commissioner Grindberg offered the following Resolution and moved its adoption:
WHEREAS, The Mayor has declared a state of emergency as a result of the COVID-19 pandemic, by order and proclamation of March 16, 2020; and
WHEREAS, The Governor of the State of North Dakota, declared, by executive order of March 19, 2020, that, effective at 12:00 p.m., Friday, March 20, 2020 all restaurants, bars, breweries, cafes and similar on-site dining establishments are closed to on-sale/on-site patrons; take-out, delivery, curbside, drive-through or off-sale services may continue; this requirement will continue through Monday, April 6, 2020; and
WHEREAS, The City’s “State of Emergency” Ordinance authorizes the Mayor and City Commission to, among other things, “. . . prohibit or limit the movement of persons or hours of operation of businesses, by curfew or otherwise, within the designated disaster or emergency area, and the occupancy of premises therein” and to “. . . limit or prohibit the sale, dispensing or transportation of alcoholic beverages . . . ” [F.M.C. Section 10-0318]; and
WHEREAS, North Dakota cities are authorized to enact or adopt all such ordinances, resolutions and regulations, not repugnant to the constitution and laws of this state, as may be proper and necessary to carry into effect the powers granted to such cities . . . as the general welfare of the municipality may require . . .” including the power “to regulate the use and sale of alcoholic beverages . . .” [N.D.C.C. §40-05-01 subd. 1 and 29]; and
WHEREAS, It is hereby found and declared that the health, safety and welfare of the City and its occupants will be benefited by providing appropriate means for the delivery of meals, including beverages, to individuals and families that fosters appropriate social distancing for the curbing of the COVID-19 pandemic.
NOW, THEREFORE, BE IT HEREBY RESOLVED:
1. MORATORIUM ESTABLISHED. A moratorium is hereby established as to the enforcement within the jurisdictional limits of the City of Fargo of Article 25-15 of the Fargo Municipal Code, as follows:
a) On-sales. As to licensed restaurants within the City of Fargo that are also licensed for on-sale serving of alcoholic beverages, the sale of sealed cans or bottles of alcoholic beverages to customers taking delivery of prepared food or meals from the restaurant on a “take-out”, “curbside delivery”, “drive-through” or employees of said restaurant or by other lawful means of delivery shall be deemed to be “on-sale” service or sale of such beverages. Delivery of meals only—without any accompanied sale of alcoholic beverages—may be delivered by agents or 3rd party meal-delivery-services.
i) For purposes of this moratorium, the definition of the term "on-sale", as set forth in Section 25-1501 (16) of the Fargo Municipal Code, limiting the “. . . sale of alcoholic beverages for consumption only on the licensed premises . . .” shall be enforced such that sealed cans or bottles of alcoholic beverages along with such food or meals sold by the restaurant and served or delivered by means of such “take-out”, “curbside delivery”, “drive-through” or other such lawful means are hereby deemed to have been consumed on the licensed premises so long as said beverages are accompanied by food purchased from the restaurant.
2. Mayor Authorized to Implement by Further Order or Orders. The Mayor of the City is hereby authorized to promulgate and issue one or more executive orders as may be necessary to implement and clarify the terms of this moratorium, under the authority of F.M.C. §10-0318 and hereof, which executive orders may be further ratified or amended by the board of city commissioners as may be necessary or appropriate.
3. Effect of Moratorium – Limitation of Enforcement. This moratorium as to the enforcement of certain regulations or ordinances of the City shall be serve to instruct, order and limit the police officers and prosecutors of the City or any other law enforcement officers or agents to refrain from enforcing City ordinances contrary to the terms hereof and to refrain from charging or citing persons, firms or other entities accordingly and, furthermore, said instruction, order and limitation in enforcement shall survive the termination of this moratorium, whether such termination occurs by lapse of time or by affirmative act.
4. Effective Date and Term. This moratorium shall take effect immediately upon the adoption hereof [the “Effective Date”] and shall extend until 11:59 p.m. on the 20th day of April, 2020, unless it is otherwise terminated or extended by resolution or motion of the Board of City Commissioners of the City of Fargo.

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.

Right of Way Use Agreement with PSJ Acquisition, LLC dba Prairie St Johns and ALPA Construction, Inc. Approved (Moved from the Consent Agenda):
Commissioner Grindberg said he received a call earlier in the day from a concerned resident on the issue; however, he has since learned that City Engineer Brenda Derrig has resolved the issue.

Ms. Derrig said she visited with the neighbor about her concerns and she also has visited with Prairie St. John’s CEO. The problem seems to be some miscommunication, she said, and two small changes to the Right of Way Use Agreement can be made that will take care of the neighbor’s concerns. She said the first is to continue to allow parking on the east side of Third Street, which is allowed today, that street is being made a one-way. The second is an issue with signage as indicated in Exhibit D and E, she said, and having signage indicate the road is closed to through traffic rather than to simply indicate road closed, would help drivers understand they cannot make the loop.

Commissioner Grindberg moved the Right of Way Use Agreement with PSJ Acquisition, LLC dba Prairie St Johns and ALPA Construction, Inc. be approved with the stated amendments.

Second by Piepkorn. On call of the roll Commissioners Grindberg, Piepkorn, Strand, 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, April 6, 2020.

Second by Grindberg. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 5:23 o’clock p.m.