Fargo City Commission - October 4, 2021 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, October 4, 2021.
The Commissioners present or absent were as shown following:
Present: Gehrig, Piepkorn, Preston, Strand, Mahoney.
Absent: None.
Mayor Mahoney presiding.
The Mayor read a message with the following information: The Engineering Department is evaluating the North Broadway Bridge and gathering feedback; Fire Prevention Week runs through October 9th; October is Breast Cancer Awareness Month; the Library is hosting its Fall concert series and weekly Fall Storytime series; and videos were shown introducing the Police Department’s newest officers and recapping the 2021 Youth Outdoors Program.
Order of Agenda Approved Adding an Additional Item to the Regular Agenda:
City Attorney Erik Johnson said Commissioner Gehrig is requesting an additional item be added under Item No. 41 to discuss the addition of an item to the Agenda that may involve a motion on the budget item from September 20, 2021 related to the two mills for the Airport Authority. At this time, he said, there are no special rules regarding reconsideration of a motion, so the Board would follow Roberts Rules of Order, which the Board has adopted. In those cases, he stated, motions to reconsider are only eligible if brought before a meeting is adjourned. Since the September 20, 2021 meeting was adjourned, he said, a motion to reconsider is ineligible; however, a motion to rescind or amend a prior action can be brought at a later meeting. If there is no notice given, he said, a super majority approval would be required; however, if notice is given, a simple majority could amend. He said notice was given on Friday, October 1, 2021 through the Executive Assistant to the City Commission.
Commissioner Piepkorn said in his opinion, adding an item to amend and possibly remove a part of the budget that already has been voted on is not legal. He said he would challenge that due to the fact that it leaves it open to cherry pick any items voted on. He made the original motion, he said, and now this bastardizes the budget vote and the whole thing needs to be revisited, not just one part.
In response to a question from Commission Preston asking whether a motion to reconsider must be brought by a member voting in the majority, Mr. Johnson said it does; however, according to Roberts Rules, a motion to rescind or amend a prior action can be brought by any Commissioner. He said it is a valid point about the possibility of revisiting old issues and is something a deliberative body may want to consider. He said there is a rule regarding motions to amend in that if something is approved, such as a contract that is already signed, one cannot unring the bell. In this case, although the budget was approved without the two mills, there have not been formal actions taken as of now to certify the mill levy so in that sense, he feels it is eligible.
Commissioner Preston stated she has concerns about items being added to the Agenda after the deadline, and to do so requires a majority vote.
Commissioner Gehrig said Item No. 41 was placed on the Agenda prior to the deadline; it is the clarification regarding a proposed motion, Item No. 41a, that was added later.
Mr. Johnson said the clarification was made due to the fact that had it been brought up without a notice, which would require a super majority vote; however, now with the notice having been made, a simple majority is required, which is significant.
Commissioner Gehrig moved the Order of the Agenda be approved adding an additional item under Item No. 41 to amend a motion approved at the September 20, 2021 City Commission meeting regarding the City’s 2022 budget and the Airport Authority’s mill levy, to include the two mills requested by the Municipal Airport Authority.
Second by Strand. On call of the roll Commissioners Gehrig, Strand, Preston and Mahoney voted aye.
Commissioner Piepkorn voted nay.
The motion was declared carried.
Minutes Approved:
Commissioner Strand moved that the Minutes of the Regular Meeting of the Board and the Minutes of the Special Meeting of the Board held on September 20, 2021 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. Receive and file an Ordinance Amending Sections 25-1506, 25-1507 and 25-1508 of Article 25-15 of Chapter 25 of the Fargo Municipal Code Relating to Alcoholic Beverages.
2. 2nd reading and final adoption of an Ordinance Rezoning Certain Parcels of Land Lying in the District of Fargo Fourth Addition to the City of Fargo, Cass County, North Dakota.
3. Findings, Conclusions and Order of the Board of City Commissioners regarding the License Revocation of the International African Restaurant and Nightclub, LLC.
4. Applications for Games of Chance:
a. North Dakota Long Term Care Association for a raffle on 12/13/21.
b. FM Raise Your Spirits Inc. for a raffle and raffle board on 10/15/21.
c. Fargo Youth Hockey Association for a raffle on 2/16/22.
5. Application of the penalty matrix to the Windbreak Saloon in the amount of $500.00 for allowing a minor on a licensed premise.
6. Memorandum of Offer to Landowner with Plecity Kowalski Construction Inc.
7. Change Order No. 2 for an increase of $2,799.51, time extension to 10/15/21 and modification of Milestone No. 3 for Project No. FM-19-A3.
8. Change Order No. 1 in the amount of $3,195.00 and time extension to 11/30/21 for Project No. FM-19-E1.
9. Change Order No. 1 for a time extension to 10/15/21 and modification of Milestone No. 3 for Project No. FM-19-A4.
10. Negative Final Balancing Change Order No. 1 in the amount of -$9,110.80 for Project No. PR-21-B1.
11. State Water Commission request for cost reimbursement for FM Metropolitan Area Flood Risk Management Project in the amount of $5,543,347.82.
12. Agreement for Services with the following:
a. Derek Newberger.
b. Quita Allegbe.
c. Jean Claude Bohui.
d. Andrew Graner.
e. Tiffany Jasmann.
f. Benjamin Vetter.
g. Amanda Marinucci.
h. Catherine Conlin.
13. Amendment to the Notice of Grant Award with the ND Department of Health and Human Services for PHEP-City Readiness Initiative (CFDA #93.089).
14. Amendment to the Notice of Grant Award with the ND Department of Health for WIC (CFDA #10.557).
15. Notice of Grant Award with the ND Department of Health for Regional Public Health Network (CFDA #93.991).
16. Third Amendment to Lease Agreement with Dakota UPREIT Limited Partnership.
17. Benefit renewals as outlined, effective 1/1/22.
18. Franchise Agreement with Cable One, Inc. d/b/a Sparklight.
19. Sole Source Procurement with ASP of Moorhead, Inc. for security services at the Main Library (SSP21169).
20. HOME ARP Grant Agreement from US Department of Housing and Urban Development (CFDA #14.239).
21. Resolution Approving Plat of First Community Addition (Attachment “A”).
22. ND Department of Transportation Traffic Safety Contract for grant funding for Occupant Protection, Impaired Driving, Distracted Driving Enforcement, Speed Enforcement and Underage Drinking Enforcement and Education Activities (CFDA #s 20.616 and 20.600).
23. Bid award to RDO Equipment in the amount of $468,300.00 with a five-year annual lease for one crawler dozer (RFP21156).
24. Bid award to RDO Equipment in the amount of $5,000.00 monthly per machine for the FARGODOME and $4,000.00 monthly per machine for Public Works for winter rental of wheeled loader equipment (RFP21154).
25. Change Order No. 3 in the amount of -$5,421.24 for the Metro Transit Garage lighting replacement project (AFB20132).
26. Sole Source Procurement with Suez Water Technologies and Solutions for the Membrane WTP Ultrafiltration system buildout.
27. Termination of wireless equipment lease with New Cingular Wireless PCS, LLC at Water Tower No. 3 (1430 10th Street North).
28. Bills in the amount of $13,749,059.07.
Second by Gehrig. On call of the roll Commissioners Strand, Gehrig, Piepkorn, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Memorandum of Offer to Landowner for Permanent Easement (Street and Utility) with A&T Land Co. LLC (Improvement District No. UN-20-B1):
The Board received a communication from Land Acquisition Specialist Shawn Bullinger requesting authorization to proceed with a Memorandum of Offer to Landowner for a Permanent Easement (Street and Utility) with A&T Land Co. LLC in association with Improvement District No. UN-20-B1. He said a final purchase price has been reached and authorization from the Board is requested to proceed with the purchase.
Commissioner Strand moved the Memorandum of Offer to Landowner for Permanent Easement (Street and Utility) with A&T Land Co. LLC in association with Improvement District No. UN-20-B1 be approved.
Second by Gehrig. On call of the roll Commissioners Strand, Gehrig, Piepkorn, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Change Order No. 4 for Improvement District No. BN-20-L1 Approved:
Commissioner Strand moved Change Order No. 4 for an increase of $26,721.40, removal of the interim completion date and an 8-day extension to the Substantial Completion date for Improvement District No. BN-20-L1 be approved.
Second by Gehrig. On call of the roll Commissioners Strand, Gehrig, Piepkorn, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Change Order No. 1 for a Time Extension and Modification of Milestone No. 2 for Improvement District No. FP-19-A2 Approved:
Commissioner Strand moved Change Order No. 1 for a time extension to October 1, 2021 and modifications to Milestone No. 2 for Improvement District No. FP-19-A2 be approved.
Second by Gehrig. On call of the roll Commissioners Strand, Gehrig, Piepkorn, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Change Order No. 1 for a Time Extension and Modification of Milestone No. 2 for Improvement District No. FP-19-A3 Approved:
Commissioner Strand moved Change Order No. 1 for a time extension to October 1, 2021 and modifications to Milestone No. 2 for Improvement District No. FP-19-A3 be approved.
Second by Gehrig. On call of the roll Commissioners Strand, Gehrig, Piepkorn, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Change Order No. 1 for Improvement District No. PR-21-C1 Approved:
Commissioner Strand moved Change Order No. 1 for an increase of $32,253.86 for Improvement District No. PR-21-C1 be approved.
Second by Gehrig. On call of the roll Commissioners Strand, Gehrig, Piepkorn, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Change Order No. 4 for Improvement District No. PR-21-G1 Approved:
Commissioner Strand moved Change Order No. 4 for an increase of $63,312.50 for Improvement District No. PR-21-G1 be approved.
Second by Gehrig. On call of the roll Commissioners Strand, Gehrig, Piepkorn, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Change Order No. 2 for Improvement District No. UN-21-A1 Approved:
Commissioner Strand moved Change Order No. 2 for an increase of $29,057.50 for Improvement District No. UN-21-A1 be approved.
Second by Gehrig. On call of the roll Commissioners Strand, Gehrig, Piepkorn, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Addition of Improvement District No. BR-22-B1 to the 2022 Capital Improvement Plan Approved:
The Board received a communication from the Public Works Projects Evaluation Committee regarding a recommendation to add Improvement District No. BR-22-B1 to the 2022 Capital Improvement Plan (CIP). They said this project was part of the 2022 project list approved in the 2022-2024 Federal Aid, Water Main Replacement and/or Street Reconstruction projects and staff recommends the inclusion of Improvement District No. BR-22-B1 (estimated cost of $2,100,000.00) into the 2022 CIP so it can be created and bid in 2021.
Commissioner Strand moved the addition of Improvement District No. BR-22-B1 to the 2022 CIP be approved.
Second by Gehrig. On call of the roll Commissioners Strand, Gehrig, Piepkorn, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Paving and Utility Rehab/Reconstruction Improvement District No. BR-22-C (Various Locations in North Fargo):
Commissioner Strand moved the following action be taken in connection with Paving and Utility Rehab/Reconstruction Improvement District No. BR-22-C:
Adopt Resolution Creating Improvement District No. BR-22-C:
WHEREAS, The Board of City Commissioners of the City of Fargo, North Dakota, deems it expedient that Improvement District No. BR-22-C in the City of Fargo, North Dakota, be created
On 3rd Avenue North from 10th Street to 7th Street, on 7th Street North from 2nd Avenue to 4th Avenue, and on 8th Street North from 3rd Avenue to 4th Avenue.
COMPRISING:
Lots 1, 2, 11 and 12, Block 20.
All in Roberts 2nd Addition.
Block A.
All in Roberts 2nd Addition.
Lots A, B, C, D, E & F of Auditor’s Sub. of Lots 10, 11 & 12, Block 10.
All in Roberts 2nd Addition.
Lots 1 through 5 and 7 through 9, Block 10.
All in Roberts 2nd Addition.
Lot A, Block A.
All in Chapin, Johnson, Barretts Addition.
Lot B & C & N ½ of vac 3 Ave N abutting S LN of B & C, Block A.
All in Chapin, Johnson, Barretts Addition.
Lot 6, Block A of Sheehan’s Sub.
All in Chapin, Johnson, Barretts Addition.
Lots 4 & 5, Block A of Sheehan’s Sub.
All in Chapin, Johnson, Barretts Addition.
Lots 1 through 12, Block 21.
All in Roberts 2nd Addition.
Lots 1 through 11, Block 9.
All in Roberts Addition.
Lots 1 through 12, Block 4.
All in Roberts Addition.
All of the foregoing located in the City of Fargo, Cass County, North Dakota.
NOW, THEREFORE, BE IT RESOLVED, That Paving and Utility Rehab/Reconstruction Improvement District No. BR-22-C in the City of Fargo, North Dakota, be and the same is hereby created.
Request Report and Estimate of Cost from the City Engineer for Improvement District No. BR-22-C:
Direct City Engineer to report as to the general nature, purpose and feasibility relative to the construction of Improvement District No. BR-22-C in the City of Fargo, North Dakota; as well as an estimate of the approximate cost of said construction. (The Engineer's estimate of cost is $2,193,660.00.)
Order Plans and Specifications for Improvement District No. BR-22-C:
Direct City Engineer to prepare Plans and Specifications for the construction of Improvement District No. BR-22-C in the City of Fargo, North Dakota.
Adopt Resolution Approving Plans and Specifications and Engineer's Report for Improvement District No. BR-22-C:
WHEREAS, The Board of City Commissioners of the City of Fargo, North Dakota, has created Improvement District No. BR-22-C in the City of Fargo, North Dakota, as required by law; and
WHEREAS, Plans and Specifications and the Engineer's Report prepared by the City Engineer, have been considered.
NOW, THEREFORE, BE IT RESOLVED, That the Plans and Specifications and Engineer's Report for the construction of Improvement District No. BR-22-C in the City of Fargo, North Dakota, be and the same are hereby approved and ordered filed in the Office of the City Auditor.
Adopt Resolution Declaring Paving and Utility Rehab/Reconstruction Necessary:
BE IT RESOLVED BY THE BOARD OF CITY COMMISSIONERS OF THE CITY OF FARGO:
That it be and is hereby declared necessary to construct Paving and Utility Rehab/Reconstruction Improvement District No. BR-22-C in the City of Fargo, North Dakota, according to the Engineer’s Report for this district and the Plans and Specifications approved by the Board of City Commissioners of the City of Fargo, North Dakota, filed in the Office of the City Auditor, and open for public inspection. A map of the district is attached hereto and incorporated as if fully set forth herein.
That a portion of said Paving and Utility Rehab/Reconstruction improvement is to be paid from State and Local Funds and approximately 54% is to be assessed against the benefited property in amounts proportionate to and not exceeding the benefits to be derived by them respectively from said improvement.
Protests against the proposed Paving and Utility Rehab/Reconstruction must be in writing and must be filed with the City Auditor's Office within 30 days after the first publication of this Resolution.
BE IT FURTHER RESOLVED, That the City Auditor's Office is hereby instructed to publish this Resolution, as required by law.
Direct City Auditor's Office to Call for Bids for Improvement District No. BR-22-C:
Direct City Auditor's Office to publish a Notice, as required by law, calling for bids for the construction of Improvement District No. BR-22-C in the City of Fargo, North Dakota.
Second by Gehrig. On call of the roll Commissioners Strand, Gehrig, Piepkorn, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Paving and Utility Rehab/Reconstruction Improvement District No. BR-22-F (21st Street South from 13th Avenue to 9th Avenue):
Commissioner Strand moved the following action be taken in connection with Paving and Utility Rehab/Reconstruction Improvement District No. BR-22-F:
Adopt Resolution Creating Improvement District No. BR-22-F:
WHEREAS, The Board of City Commissioners of the City of Fargo, North Dakota, deems it expedient that Improvement District No. BR-22-F in the City of Fargo, North Dakota, be created
On 21st Street South from 13th Avenue to 9th Avenue.
COMPRISING:
Lots 1 through 22, Block 11.
All platted in Hilleboe Terrace Addition.
Lots 15 through 26, Block 8.
All platted in Hilleboe Terrace Addition.
Lots 14 and 15, Block 10.
All platted in Hilleboe Terrace Addition.
Lots 13 through 20, Block 3.
All platted in Hilleboe 1st Addition.
All the foregoing located in the City of Fargo, Cass County, North Dakota.
NOW, THEREFORE, BE IT RESOLVED, That Paving and Utility Rehab/Reconstruction Improvement District No. BR-22-F in the City of Fargo, North Dakota, be and the same is hereby created.
Request Report and Estimate of Cost From the City Engineer for Improvement District No. BR-22-F:
Direct City Engineer to report as to the general nature, purpose and feasibility relative to the construction of Improvement District No. BR-22-F in the City of Fargo, North Dakota; as well as an estimate of the approximate cost of said construction. (The Engineer's estimate of cost is $1,993,540.50.)
Order Plans and Specifications for Improvement District No. BR-22-F:
Direct City Engineer to prepare Plans and Specifications for the construction of Improvement District No. BR-22-F in the City of Fargo, North Dakota.
Adopt Resolution Approving Plans and Specifications and Engineer's Report for Improvement District No. BR-22-F:
WHEREAS, The Board of City Commissioners of the City of Fargo, North Dakota, has created Improvement District No. BR-22-F in the City of Fargo, North Dakota, as required by law; and
WHEREAS, Plans and Specifications and the Engineer's Report prepared by the City Engineer, have been considered.
NOW, THEREFORE, BE IT RESOLVED, That the Plans and Specifications and Engineer's Report for the construction of Improvement District No. BR-22-F in the City of Fargo, North Dakota, be and the same are hereby approved and ordered filed in the Office of the City Auditor.
Adopt Resolution Declaring Paving and Utility Rehab/Reconstruction Necessary:
BE IT RESOLVED BY THE BOARD OF CITY COMMISSIONERS OF THE CITY OF FARGO:
That it be and is hereby declared necessary to construct Paving and Utility Rehab/Reconstruction Improvement District No. BR-22-F in the City of Fargo, North Dakota, according to the Engineer’s Report for this district and the Plans and Specifications approved by the Board of City Commissioners of the City of Fargo, North Dakota, filed in the Office of the City Auditor, and open for public inspection. A map of the district is attached hereto and incorporated as if fully set forth herein.
That a portion of said Paving and Utility Rehab/Reconstruction improvement is to be paid from State and Local Funds and approximately 20% is to be assessed against the benefited property in amounts proportionate to and not exceeding the benefits to be derived by them respectively from said improvement.
Protests against the proposed Paving and Utility Rehab/Reconstruction must be in writing and must be filed with the City Auditor's Office within 30 days after the first publication of this Resolution.
BE IT FURTHER RESOLVED, That the City Auditor's Office is hereby instructed to publish this Resolution, as required by law.
Direct City Auditor's Office to Call for Bids for Improvement District No. BR-22-F:
Direct City Auditor's Office to publish a Notice, as required by law, calling for bids for the construction of Improvement District No. BR-22-F in the City of Fargo, North Dakota.
Second by Gehrig. On call of the roll Commissioners Strand, Gehrig, Piepkorn, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Resident Comments:
Christopher Coen and Richard Thomas spoke about the Wildlife Management Program and public safety, Wess Philome spoke about response to hate and Branden Krieger spoke about the importance of funding the airport.
Hearing on Community Development Block Grant (CDBG) and HOME Investment Partnerships Program (HOME) Amendments to the 2021 Action Plan and 2020-2024 Consolidated Plan:
A Hearing had been set for this day and hour to consider Community Development Block Grant (CDBG) and HOME Investment Partnerships Program (HOME) Amendments to the 2021 Action Plan and 2020-2024 Consolidated Plan.
Community Development Planning Coordinator Tia Braseth said the Department of Planning and Development is proposing the addition of a new activity to its 2021 HUD Action Plan related to its Community Development Block Grant (CDBG) program. The proposed amendment is to add a project to address a 5-year plan goal of Assistance to Vulnerable Populations – After School Matters Youth Center (ages 13-19). She said in this case, it is for underserved youth from low to moderate income households and includes interior renovations and fit up of an existing building in north Fargo for teenage youth programming. She said they propose up to $85,000.00 from the CDBG allocation which comes from a 13 percent overage of one of the 2021 property acquisition activities. She said the property proposed amendment, as well as others not requiring a public hearing are detailed in the public notice and to date, no public comments have been received. The project applicant, Faith4Hope, is available if the Board has questions, she said. The public comment period for the plan ends October 18, 2021, she stated, and final consideration of the 2021 Action Plan amendment is scheduled for October 18, 2021.
Mayor Mahoney closed the public hearing.
Special Assessment List for Business Improvement District (BID) Fees Approved:
A Hearing had been set for this day and hour on the special assessment list for Business Improvement District (BID) fees in the City of Fargo, North Dakota.
No appeals have been filed in writing against any item appearing on such special assessment list and no person is present at this Hearing to appeal or offer any objection thereto.
Commissioner Piepkorn moved that the special assessment list for Business Improvement District (BID) fees be and the same is hereby approved and confirmed and ordered filed in the office of the City Auditor and that the City Auditor's Office be instructed to proceed to collect the assessments in the manner provided by law.
Second by Preston. On call of the roll Commissioners Piepkorn, Preston, Strand, Gehrig and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Special Assessments for Unpaid Utility Bills on Certain Properties in the City of Fargo Approved:
A Hearing had been set for this day and hour on special assessments for unpaid utility bills on the list of properties on file in the City Auditor’s Office.
No appeals have been filed in writing against any item appearing on such special assessment list and no person is present at this Hearing to appeal or offer any objection thereto.
City Auditor Steve Sprague said all 40 properties being assessed are in the area serviced by Cass Rural Water which could turn their water off for nonpayment; however, the City provides the services for sewer, garbage, storm sewer, forestry, etc., so there is no way to collect other than through property taxes. If the outstanding debt is not collected by adding it to the property owners taxes, he said, then all the other property owners in Fargo would essentially be paying their bills. He said nearly all of these have gone up to a year without paying.
Commissioner Piepkorn moved the special assessments for unpaid utility bills on certain properties in the City of Fargo be approved as presented.
Second by Preston. On call of the roll Commissioners Piepkorn, Preston, Strand, Gehrig and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
COVID-19 Update:
Fargo Cass Public Health (FCPH) Director Desi Fleming said statewide COVID-19 cases continue to increase and are just below 4,000 active cases. She said two months ago, North Dakota had only 637 active case. Cass County has 755 active cases, she said, up 200 cases from two weeks ago. There were six deaths in the County last week with a Statewide total of 17 deaths the same week, she said, and hospitalization increased by 37 individuals and a total 157 people Statewide. Health systems continue to have critical bed shortages across the State, she stated. She said last week 25 percent of the new COVID-19 cases were in those under 19 years of age; however, the reality is that all age groups have active cases at this time. North Dakota and Cass County are in the high transmission category according to the Centers for Disease Control and Prevention (CDC) metric, she said. North Dakota still has one of the worst vaccination rates in the country, she said. Booster doses are available for those who qualify with the Pfizer vaccine, she said, and FCPC will host booster clinics on Saturdays in October by appointment. She said Vaccinefinder.org is a resource to find vaccine availability.
Commissioner Strand said the City of Fargo, the Cass County Commission and the Fargo School Board have done mitigation efforts on their turf; however, he is concerned that the West Fargo School Board has not and while it is a separate subdivision, 5,000 students in that School District are Fargo residents. He said he would like to see that School Board step-up workplace safety efforts and mitigation efforts for everybody’s benefit.
Discussion Regarding the Municipal Airport Authority’s Two Mills in the 2022 Budget:
Commissioner Tony Gehrig said at the September 20, 2021 meeting, the Board voted to remove two mills for the Airport from the budget and he is asking that that action be amended. He said the Board heard from the North Dakota Aeronautical Commission asking for reconsideration and listing completed projects. He outlined some Hector International Airport project examples from the past, and the federal and state funding that came from outside the City,
Municipal Airport Authority Chairman Erik Lind said the two mills levied for the Airport, about $1.2 million, are used for capital improvements. It is used for construction and purchasing equipment, he said, and with the growth of Fargo it is necessary to continue to add infrastructure. He said no mill levy funds are used for compensation or benefits. He said while the $35 million in reserve seems like a lot, a large amount is required by the FAA and it includes COVID-19 grants, which have strict guidelines for use and cannot be used for building projects. He said mill levy money has to be set aside to be pledged for construction projects only. He explained the need and process for expanding the gates at the terminal to accommodate growth and the need for parking improvements. He said a local share of 10% is planned and 90% is federal funding, with the state kicking in some; however, the amount is unknown. He said rather than going into debt for projects, they save money to reduce the need to borrow. There is a tremendous amount of oversight by the FAA, he said, and they only approve what is reasonable and necessary. He said he strongly urges the Board to reconsider the position on the mill levies and to keep the funding going for the Airport, there is a large return for what the City invests.
Commissioner Piepkorn said he feels the financial oversight for the Airport is inadequate; they do not have a finance director or finance committee. He said there are red flags and at the end of the day, this falls on the City Commission.
Mr. Lind said the FAA does oversight and they audit multiple times a year, all federal and state grants get audited, Eide Bailly does audits, and the City did an audit last year. He said they have been audited heavily and there have been no findings that anything was incorrect.
In response to a question from Commissioner Preston asking about reserve requirements and why there is such a large reserve in recent years, Mr. Lind said it is not a compliance issue, they have reserves because having money up front reduces the need for bonds.
Commissioner Preston said it seems the reserve fund continues to be built even with large improvement projects happening. She said it would be helpful if specific projects were listed showing what federal and local participation would be. She said she is most interested in knowing how the reserve fund has tripled in the last ten years.
Mr. Lind said the reserve would look like a huge amount if they were not planning on large expenditures.
Airport Executive Director Shawn Dobberstein said they have an estimated
$16 million in projects planned to replace the terminal apron over two years, the CIP includes $35 million for terminal expansion coming up that could be in excess of $50 million, and the runway extension project, so there are about $192 million in projects through 2037.
Commissioner Strand asked whether the projects would continue without City support and Mr. Lind said if it were taken away today, they would find a way to do it; however, tomorrow is a new question.
Mr. Dobberstein said some projects are required, the FAA requires a certain pavement condition index be maintained in an acceptable operating condition. He said projects would move forward; however, without local funding it could cost more or take longer to fund.
Amendment to the 2022 Budget to Include the Two Mills for the Municipal Airport Authority Approved:
Commissioner Gehrig moved that the motion made and approved on September 20, 2021 with respect to the removal of two mills from the Municipal Airport Authority be amended to include said two mills.
Second by Strand.
Commissioner Piepkorn said the amendment changes the original motion to approve the budget. The whole thing would need to be revisited, he said, and one item cannot be cherry picked out of it. He said he feels it inappropriate and could be legally challenged.
Mayor Mahoney said perhaps at the time of the original motion, it should have been split to approve the budget and separately approve the mill levy reduction.
Commissioner Strand said he had voted in favor of reducing the mill levy; however, his biggest concern is to not misstep. He favors the Airport separating from the City as far as HR, accounting, etc.; however, he hopes for long term improvement in the relationship, he stated. An amended MOU with the Airport is one of the next items on the agenda, he said, and will provide a process and the requirements to request a mill levy each year. He said this is somewhat of a transition phase and there is a desire for a partnership going forward. He said there is a communication breakdown; however, he feels it is critical to focus on creating agreements, crafting understandings and embedding them in an MOU and commitment going forward. Knowing it is not all in place right now, he said, he will vote in favor of the motion to avoid a mistake made in the meantime.
Commissioner Piepkorn said this takes property taxes from seniors on fixed incomes and gives it to an entity with $36 million in the bank and without financial oversight. This is an unnecessary tax on homeowners, he said.
Commissioner Strand said it is important to understand this is paid for by the property owners and the City Commission is the responsible agent. He suggests taking the financial oversight concerns and building them into the MOU.
Commissioner Piepkorn suggested replacing three of the five Airport Authority members and removing the Executive Director due to the fact there is no financial oversight of the public’s money. The Airport belongs to the taxpayers, he said, and he has asked for the approved audits, and there seems to be sweetheart leases that are borderline illegal.
Mayor Mahoney said an audit is going on and efforts are being made to do it before the MOU is done, in 30 to 60 days. He said if any of the Commissioners want something specific from the audit, please let him know.
Commissioner Preston said perhaps the MOU discussion should have happened before this. She said she struggles with the enormous amount of money in reserves and is not convinced there will be a process identifying projects and whether it will be scrutinized.
Mayor Mahoney said problems with communication have happened again and again. He said the CIP process was delivered a couple weeks ago and Mr. Lind has done more to show the revenue and expenses. There has been more communication recently than in the past, and there needs to be many improvements at the Airport, he said; however, he wants people to come to Fargo and to travel out of Fargo and he would like to see lower rates. There are a number of goals to work on and number one is communication.
On call of the roll Commissioners Gehrig, Strand and Mahoney voted aye.
Commissioners Preston and Piepkorn voted nay.
The motion was declared carried.
At 6:19 p.m. the Board took a five-minute recess.
After recess: All Commissioners present. Mayor Mahoney presiding.
Status Report on the Term Sheet and Memorandum of Understanding between the City and the Fargo Municipal Airport Authority:
Assistant City Administrator Michael Redlinger said internal discussions between the City’s HR, Finance and IS Departments relating to the upcoming transition between the City and the Fargo Municipal Airport Authority (MAA) continue. Work is being done to assure access remains into early 2022 with the financial systems as the MAA works within a new platform for financial management, he said. The MAA recently completed an RFP for technology services with a local award to S&L Computer Services, he said, and a transition plan will be worked on between now and year end. The transition involves a new employee system planned to be launched December 26th for MAA employees and there will be talks with current employees within the City’s pay plan about the pay and benefit transition. He said the City stands by and is ready to help in this last quarter of the year to make sure the transition works for the employees.
City Attorney Erik Johnson said the previous discussion on the MAA alluded a lot to the MOU. He explained that shortly after the Airport Authority was created, a three-page agreement was entered into and then amended a year later, about 1970. This three-page agreement established the relationship for 50 years, he stated, at least as far as the City providing support. More by practice than agreement, he said, things unfolded and developed as finances became more complicated, HR developments and pension and along the way, Information Services were provided by the City. He said around 2018, negotiations culminated in a multiple page MOU in January 2020. The MOU was to create detail in how the relationship exists between the MAA and the City, he said, and now a working term sheet has been developed with the progress that has been made in what is called a separation. Separation does not mean the MAA will be totally separate from the City Commission or City of Fargo, he said, by statute there will always be a relationship between an Airport Authority and the City that creates it. The difference here, he said, is the support by the City in services. He said the new relationship formed by an amendment to the January 2020 MOU will address what the Airport will need to do going forward, such as being in charge of its own employee benefits, policies, financial services and information technology. He said it will include framework for the interaction between the MAA and City Commission, which includes appointment of the five members of the MAA, the City Commission must approve bond issues if needed and the City Commission has the authority to accept or reject a request for up to four mills. He said the term sheet includes the following to be included in the new MOU: a process of presenting a budget, an annual report of an audit, employee benefit costs, pension costs, a safety report and financial, employee and operational policy reports. He said transparency includes videos of MAA meetings and making the agenda packet available. He said the hope is the new MOU and relationship will help with communications.
Resolution Authorizing Sale of Property (419 3rd Street North – Building and Parking Lot) and Resolution Authorizing Sale of Property (1 2nd Street South – Vacant Lot) Adopted:
Director of Strategic Planning Jim Gilmour said the Riverfront Renewal Plan encourages additional private development within the area of the plan. Activities in the plan include the sale of two properties that are remnants of larger parcels acquired for Diversion activities, he said, including 419 3rd Street North, which is the old School District warehouse property acquired to relocate 2nd Street and build a floodwall, and 1 2nd Street South, which was the site of the Park East apartment building. He said the land in that area available for sale is approximately 54,000 square feet and is located between the levee and the Gateway redevelopment. He said the Diversion Agreement requires that money from the sale, less administrative costs, be provided to the Diversion Authority and the Executive Director of the Diversion Authority has reviewed the sale Resolutions and Requests for Proposals and did not have concerns. He said the Finance Committee is recommending that the City proceed with requesting proposals for the sale of the properties.
In response to a question from Commissioner Strand asking are there project types not desirable in these locations, Mr. Gilmour said these were looked at mostly for housing or mixed-use. He said the Downtown Mixed Use (DMU) zoning allows a wide range of uses, provided they meet design standards for Downtown. The RFP looks at the best project and the amount of the offer, he said, and it says any and all proposals can be rejected.
Commissioner Piepkorn moved that the Resolutions entitled “Resolution Authorizing Sale of Property (419 3rd Street North – Building and Parking Lot),” and referred to as Attachment “B” and “Resolution Authorizing Sale of Property (1 2nd Street South – Vacant Lot),” and referred to as Attachment “C,” be adopted and attached hereto.
Second by Preston. On the vote being taken on the question of the adoption of the Resolutions Commissioners Piepkorn, Preston, Strand, Gehrig and Mahoney voted aye.
No Commissioner being absent and none voting nay, the Resolutions were adopted.
Recommendation to Advertise for a Request for Qualifications and Proposals for Civil and Prosecutorial Legal Services Approved:
Assistant City Administrator Michael Redlinger said City Attorney Erik Johnson has provided written notice to the City of his intent to terminate the agreement his law firm has with the City to provide City Attorney services. He said the services include representation in general municipal law matters and prosecutorial services in which the City appears, such as Municipal Court, District Court and the North Dakota Supreme Court. Per the terms of the current agreement between the law firm and the City, he said, either party may terminate the agreement with 90 days written notice, which was provided by Mr. Johnson on September 13, 2021. He said Mr. Johnson’s agreement with the City will end December 31, 2021, and prior to that date, per Fargo Municipal Code, new arrangements for City Attorney services need to be established. The City Commission may procure legal services through a variety of methods, he said, including Request for Qualifications and Proposals (RFP) in which an RFP would be advertised and distributed to law firms and individuals to solicit proposals for consideration by the City Commission. Law firms or individuals would serve the City as outside contractors, similar to the current arrangement Mr. Johnson’s firm has with the City. He said it is recommended that separate RFPs for civil and prosecutorial services be utilized. Another approach, he said, would be the creation of an in-house City Attorney’s Office and staff hired to be employed by the City. He said the City would develop a position description for the City Attorney to advertise, recruit and select a candidate in conformance with the newly created position. Other staff, such as an Assistant City Attorney, associate attorneys, paralegals, legal assistants or other positions that may be necessary, would be hired following the selection of
an in-house City Attorney, he said. In this model, it is anticipated that the new City Attorney’s office would be established over several months in 2022, he said, office space and support services would be provided by the City based on the size and scale of the newly created department and operating budgets and staffing levels would be determined in the first year of operation. He said City Administration and Human Resources have discussed this model and agree that an in-house attorney would require significant time preparation and due diligence and that several months would be required to create a new internal City Attorney Office; therefore, it is the recommendation of staff that an RFP process be utilized to expedite the procurement of a new legal services provider. The packet includes drafts of the documents, he said and he explained how the RFPs would be distributed. He said he is asking for approval of the RFP model and approach for civil and prosecutorial services and authorization to proceed with advertising per the timeline to have proposals back by November 5th and interviews by mid-November so an appointment decision recommendation can be made for either the November 15th or 29th City Commission meeting to allow time to transition before year end.
In response to a question from Commissioner Strand asking if going this route for RFPs rules out exploring the option for an in-house legal department, Mr. Redlinger said it does not; this process is to get the ball rolling knowing time is of the essence. He said it does not preclude creating an in-house office down the road if that is of interest.
Commissioner Piepkorn moved the recommendation to advertise a Request for Qualifications and Proposals for Civil and Prosecutorial Legal Services be approved.
Second by Gehrig. On call of the roll Commissioners Piepkorn, Gehrig, Strand, Preston and Mahoney vote 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. Michael and Lisa Montgomery, 2968 28th Avenue South (3 year).
b. Bradley and Polly Bode, 1610 7th Street South (5 year).
c. Daryl and Wanda Holmen, 1506 14th Street South (5 year).
d. Terry Teigen, 1405 25th Avenue South, Unit A301 (5 year).
e. Gerald Sletten, 1405 25th Avenue South, Unit A205 (5 year).
f. Kevin and Ruth Black, 503 16th Avenue North (5 year).
g. Palma Marie Blotsky Life Estate, 1405 25th Avenue South, Unit A202 (5 year).
h. Kristopher and Erin Gillett, 1007 21st Avenue South (5 year).
i. Richard and Roxann Burtness, 2318 15th Street South, Unit C11 (5 year).
j. Daniel and Chelsea Simmons, 1711 9th Street South (5 year).
Commissioner Piepkorn moved the applications be approved.
Second by Gehrig. On call of the roll Commissioners Piepkorn, Gehrig, Strand, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Reappointments to the Housing and Redevelopment Authority:
The Board received a communication from Mayor Mahoney recommending that Thomas Jefferson and Bryce Alme Johnson be reappointed to the Housing and Redevelopment Authority.
Commissioner Strand moved Thomas Jefferson and Bryce Alme Johnson be reappointed to the Housing and Redevelopment Authority for three-year terms ending September 30, 2024.
Second by Preston. On call of the roll Commissioners Strand, Preston, Piepkorn, Gehrig and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Appointments to the Human Relations Commission:
The Board received a communication from Mayor Mahoney recommending that Nancy Boyle be appointed to the Human Relations Commission to replace Laetitia Hellerud, who has resigned her position. Ms. Hellerud’s term would have expired on July 1, 2022. He said in November 2020, the City Commission amended the Human Relations Commission Ordinance, adding two additional members to the Commission. He said it is his recommendation to appoint Jed Locquiao to a one-year term ending July 1, 2022 and Sarah Boonstoppel to a two-year term ending July 1, 2023.
Commissioner Strand moved Nancy Boyle be appointed to fill the unexpired term of Laetitia Hellerud for a term ending July 1, 2022 and and Jed Locquiao be appointed for a one-year terms ending July 1, 2022, and Sarah Boonstoppel be appointed to a two-year term ending July 1, 2023, all to the Human Relations Commission.
Second by Preston. On call of the roll Commissioners Strand, Preston, Piepkorn, Gehrig and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.
Commissioner Piepkorn requested that the Board recess rather than adjourn. He said he will appeal the action taken tonight on his original motion to approve the budget and the two mill reduction.
Mr. Johnson said when Commissioner Piepkorn asked him how he could challenge the Airport vote, he told him he did not know what opportunities he may have to challenge it; however, he would look into that. He said if something must happen prior to adjournment of the meeting and to protect his options, he would suggest a recess to a date and time certain, rather than adjournment, to allow him to explore Commissioner Piepkorn’s options. While the Board may reconvene after the recess to simply adjourn, he said, this would allow the benefit of researching Commissioner Piepkorn’s concerns.
Commissioner Strand said he appreciates Commissioner Piepkorn concerns; however, the only benefit to a recess would be to advance a motion in the same meeting by a member who was in the majority.
Commissioner Preston said the option of rescinding or amending should be extended to Commissioner Piepkorn as it was tonight.
In response to a question from Mayor Mahoney asking if there is any problem with the deadline to submit the budget, Finance Director Kent Costin said North Dakota Law requires submission of the certification of the tax levies by October 10th.
Mayor Mahoney said he is in agreement to have a legal opinion and to respect Commissioner Piepkorn’s concerns.
Commissioner Piepkorn moved to recess the Board until 4:00 o’clock p.m., Wednesday, October 6, 2021.
Second by Preston. On call of the roll Commissioners Piepkorn, Preston and Mahoney voted aye.
Commissioners Strand and Gehrig voted nay.
The motion was declared carried.
At 4:03 p.m. on Wednesday, October 6, 2021, the Board reconvened after recess.
Present: Piepkorn, Strand (via conference call), Mahoney.
Absent: Preston, Gehrig.
Mayor Mahoney presiding.
Update on City Attorney’s Research on Challenging the Amendment to the Budget Vote:
City Attorney Erik Johnson said this is a reconvened meeting that was recessed for a two-day period to allow him time to look into a motion made by Commissioner Gehrig to amend a motion previously acted on two weeks prior, which was made by Commissioner Piepkorn approving the budget; however, not the two mill levy for the Airport. Commissioner Gehrig’s amendment was to include the two mills for the Airport, and that was approved, he said. Commissioner Piepkorn had an objection to the process, he said, and asked him during the break what his rights are. He said because he needed time to look into it, he suggested the recess. He found generally throughout the country, courts do not take action or enforce arguments about the applicability of Robert’s Rules of Order, he said, including North Dakota. Similarly, he said, the Attorney General’s Office looks at meeting violations and open records violations; however, would not look into something such as this. Thus, he said, the remedy is limited to the body itself by using Robert’s Rules of Order, which the City has adopted, although those rules can be waived by a majority vote of the Board itself. It would be through Robert’s Rules of Order that Commissioner Piepkorn would have options, he said, and one would be a motion to reconsider; however, that has to happen within the same meeting and made by somebody in the majority. He said Commissioner Piepkorn was in the minority and not able to make that motion.
Commissioner Piepkorn thanked Mr. Johnson for his discussions and help with his questions.
In response to a question from Mr. Johnson asking if the Board would like to discuss the policy, Mayor Mahoney said due to not having all the Commissioners present, that discussion could be at a later date. He said he and Commissioner Piepkorn have discussed that a motion to reconsider needs to be defined so all the Commissioners understand and also understand what is in Robert’s Rules of Order for a clear idea of what the options are. Due to the fact that there is some ambiguity, he said, perhaps the Code of Conduct needs to be looked at.
Commissioner Piepkorn moved that the Board adjourn to 5:00 o’clock p.m., Monday, October 18, 2021.
Second by Strand. All the Commissioners present voted aye and the motion was declared carried.
The time at adjournment was 4:08 o’clock p.m.