Council Minutes

MINUTES/COMMITTEE OF THE WHOLE
Tuesday, June 25, 2002 - following organizational meeting of city council.

The city council met as the Committee of the Whole on Tuesday, June 25, 2002 following the organizational meeting of the city council in the council chambers in City Hall with Mayor Brown presiding. Present at roll call were Council Members Brooks, Hamerlik, Glassheim, Gershman, Christensen, Kerian, Kreun - 7.

Mayor Brown announced that when addressing the committee to please come forward to use the microphone for the record, and advised that the meeting is being televised live and taped for later broadcast.

Under announcements Mayor Brown presented the following items:
The volunteer trips - that last Thursday the cities of Grand Forks and East Grand Forks organized bus trips of volunteers to help the flooded areas of northwest Minnesota, and gave a special thanks to the Grand Forks City employees who went out to help, that about 40 employees joined over 100 others from our community to begin cleaning out homes and helping to plan for extended recovery. Public Info Center will show a 3-minute video this evening regarding that. The trips were successful in that we were able to help many property owners with the initial cleanup and also successful in conveying the message that we are here to help and will continue to look for ways as the flooded areas continue to recover - that tomorrow the city council will be sending 4 building inspectors to examine structural integrity, help enforce building codes and address mechanical and plumbing issues. He encouraged everyone in our community to evaluate exactly what you can do to help - volunteer help is still needed in the cleanup and the Community Foundation has continued to accept donations until July 4 - $17,000 has been collected so far.

He stated there is lunch with the Mayor tomorrow at Joe diMaggio's at 12:30 p.m. for the first-ever Lunch with the Mayor (blatantly borrowed from Governor Jesse Ventura), and invited anyone interested to attend, will mainly talk about the work and progress down-town, the flood protection project, and plans for the greenway and how the downtown is open for business. He thanked the Downtown Leadership Group for setting this up.

He stated there is a Blues Festival, world's smallest Blues Festival will be held in front of Lola's, incredibly significant event for our community, and will demonstrate that the "Grand Cities" can put on a great concert that can be fun, safe and positive. He thanked the organizers and sponsors for working with the Park District and City departments, including police, health, office of urban development and the mayor's office.

He stated he was saddened to hear about the passing of John Little, he was a vivid example of how the University brings so much to our community and its character and diversity, and he also demonstrated the power of a great idea in the UND's Writers Conference, and as the years went by not only did his Southern accent get stronger but the Writers Conference became a signature event that was nationally recognized. His presence has already been missed but we should take care to embrace his spirit, and make sure our community is welcoming to new ideas and distinctive styles because that is what they add to the complexity and depth of our collective character in our community.

He stated that Marty Herzog - recognize H Herzog & Sons who are in town from Denver, they purchased the former South Forks Plaza in 1997 and recently finalized the purchase of
the former Sears building -Mr. Herzog is in town to work with City and meet the city
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council and deal with perspective tenants. He welcomed Mr. Herzog and thanked him for continuing their investment in our community.

Mr. Herzog addressed the city council, and thanked the council for giving him time and stated that J.Herzog & Sons is 100 years old this year, that they go into small towns and middle size towns around the country and try to buy properties and rehabilitate them; they purchased the South Forks property in 1997 after the flood and renamed "Grand Cities Mall", and just purchased the Sears property and are going to bring national tenants to that project - have a signed lease with Big Lots which is consolidated stores, 30,000 sq.ft. and on the verge of signing two more leases with national tenants and would like to continue to improve the project, and finds it a privilege to be able to come into towns and would like to buy more projects in Grand Forks. They are trying to contact Met Life in seeing if they can buy the Columbia Mall, that he came here to thank you for your cooperation, for the opportunity to improve properties and to look for a working relationship with city government and all the people that are interacting with them; and wanted to say hello to Doug Christensen who has helped him in the past and his ward member, Hal Gershman, and congratulated them on being elected; and that he is here to answer questions.

The Info Center showed a 3-minute video on the trip of volunteers to Roseau for flood cleanup. He stated they are on the invitation of the MN Inspections Department that the City is sending 4 inspectors tomorrow. People of Roseau are very appreciative of every-thing that we've done for them in that area.

ACTION ITEMS

2.1 Hold public hearing for moving permit application to move the home from 1402 South 17th Street to 721 Cherry Street.___________________________________
No comments.

2.2 Proposed amendment to 2002 CDBG Program (request for additional funds from Y
Family Center).__________________________________________________________
Council Member Hamerlik asked if they would qualify for the LMI; Terry Hanson stated they would and that 70% of all CDBG funds have to be spent towards the benefit of low and moderate income families. Council Member Hamerlik asked if the City advertises so that other agencies might be able to use funds. Mr. Hanson stated they are starting that the first meetings in July and will be coming to the council with the agenda of the 2003 funding cycle, they advertise the availability of applications for these funds in the Grand Forks Herald (legal notices and regular advertisement) and also forward information to all of the non-profits that they have assisted over the last 20 years to advise them that the application process is beginning again.

Council Member Brooks stated that in December, 2001 this was approved for $65,000 and at that time it was a ranking; concerned if increasing this dollar amount and not ignoring
the next one that was ranked. Mr. Hanson stated that the rankings that took place were
funded in two tiers, the first tier awarded were all projects that could be funded with the anticipated revenue we would have in 2002 and the second tier was if we did receive additional revenue those projects would be funded - the first project in the second tier was to fund playground equipment for $30,000 and the second project (tie between second and
third projects) and any additional program income over and above $30,000 would be
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distributed between Urban Development's Home Ownership Program and the Red River Valley Community Action Agency's Home Rehabilitation Program, and didn't fund any projects beyond that; that he anticipates that they will go beyond the $30,000 and probably have enough to fund the request from the Y Center and still have enough to go into the second tier applications.

Council Member Glassheim asked if there was a competitive process for this additional $65,000, they were ranked high for $65,000 but now because they're in, they're not competing for another $65,000 against other applications - the concern is that maybe they should be thrown into the 2003 discussion for additional monies. Mr. Hanson stated that would be their recommendation if the council does not want to fund additional monies to this project this year - the Y is asking is that we fund a chair lift not an elevator. Council Member Glassheim asked if the Y can keep the $65,000 they were already awarded and carry that forward; Mr. Hanson stated they can and can apply for the additional as part of the 2003 funding. Mr. Hanson stated the department's recommendation is to fund the additional $65,000 so they can move ahead with the project this year and complete it.

Mr. Hanson stated that today we are very close to receiving the total amount they've estimated as program income for the year 2002, are $30,000 short of the amount they did anticipate - that they have not yet received proceeds of the sale of a home in Sunbeam Addition which he believes will bring in approx. $260-270,000.

Council Member Christensen stated he thought it was important to maintain the competitive process, has no problem amending the grant so they can do a chair lift right away, but thinks the other agencies that were ranked lower and think they are going to receive some excess funding as the first tier is filled should be given the consideration to keep the process and maintain the integrity of the process.

Council Member Kerian stated she would be in favor of putting this money in reserve, giving them an opportunity to look for money from this source or other sources before the next year and get it done properly; and questioned the process - it may be that they gain some points because it was a smaller amount and they did have a grant with it so the whole process might be questioned if we were to approve this and would hope that we let them hold that amount of money and take it from there. Council Member Hamerlik stated he thinks the competitiveness is important and would seems that while this is a worthwhile project, that we're better off not funding any of it now and carrying it on over, and try to move it up as fast as we can.

2.3 Budget amendment request.
2.4 Budget amendment request.
2.5 Budget amendment request.
Amendments to the police department budget on various block grants. The city auditor stated that these were grants where they received the cash last year on two of them,
the other amendment is a new block grant this year where they haven't earned any interest yet, and will be corrected.

2.6 Budget amendment request.
Council Member Kerian asked for explanation on when using this equipment in a region, other than Grand Forks area, how get call in and what's the coverage area. Chief
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O'Neill stated they could respond at any time, have agreed to be part of the regional response team for the State of North Dakota with the Division of Emergency Management, the original call would go to the Division of Emergency Management, who would notify the fire department that they were requested in a certain location across the state, the initial thought process is that it would be in the northeast quadrant where they would meet up either with Minot or Fargo, but in reality it could occur that they all might be necessary and closer to Bismarck or west of Minot, could actually end up anywhere for a short period of time but the possibility does exist, and with or without the funds they would morally be obligated to go out and assist because best prepared at this point to respond to that type of incident.

Council Member Gershman asked if we go out if there is reimbursement from the community or does the grant handle that. Chief O'Neill stated when they agreed to accept the grant, have agreed to go out and the equipment they would be taking with them would be equipment that is purchased with the initial funds, $240,000, and if left it there or lost that equipment, they would expect to be reimbursed through the federal government again - there is a super fund that if it is a hazardous materials incident of sorts that if the business that is responsible cannot afford to pay, then the federal government does step in and reimburse the local equipment. He also stated it is possible they would be reimbursed for salaries but wouldn't expect any long term event that would cost them many thousands of dollars - expects shorter term response.

Chief O'Neill stated this is not a hazardous materials response - it is a weapons of mass destruction response team, which is quite a bit different because a hazardous materials incident may be an accidental release, etc.; the weapons of mass destruction incident will be purposeful release of a hazardous materials product or a weapon of mass destruction (atomic weapon, chemical devise or biological devise) so distinct difference, that they are expecting to receive future monies for training events in preparing for this - it's basically monies that are going to actually benefit the city of Grand Forks because we have to pre-pare for the event in the city of Grand Forks anyway so any monies we receive in grant funds to cover us for those overtime expenses is actually a benefit; and have made applica-tions for the grant funds to cover that - and are working on future grants now with the Division of Emergency Management and looking at some memorandums of understanding with other fire departments across the state.

2.7 Bids for City Project Nos. 4815.1 and 4816.2 - sanitary sewer and water systems
modifications.________________________________________________________
Mark Walker, asst. city engineer, reported that since the staff report was prepared, they received bids on those projects, bid results were distributed to the council members, and they recommend award to low bidder, Soberaski, Inc. in the amount of $43,396.50.

2.8 Engineering services agreement for City Project No. 5385 - wastewater biosolids
management facility plan and associated budget amendment._________________
Council Member Christensen stated he was part of the committee that recommended the consultant along with Mr. Kreun, and would like to have opportunity for them to talk to staff about the proposal they put together (whether amend or add some things to the scope of work) and have it in the packet on Monday - Staff agreed.

2.9 Plans and specifications for Project No. 5374, District No. 585, paving N. 52nd Street.
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There were no comments.

2.10 Plans and specifications for Project No. 5379, District No. 587, paving Phoenix Court.
This is a combination bid with Project No. 5374 (but projects are separated), Ms. Voigt stated that on the Phoenix Court project, the assessment protest expires on Thursday, and they will meet with the Special Assessment Commission prior to that, and might be change in the staff recommendation.

2.11 Amendment to the Urban and Regional Project List.
Council Member Gershman stated that originally the City thought its cost was zero and now it is $69,721 and should be noted that the NDDOT stated that they had told City staff that they would not have to provide any of the match in federal funds for this project but were incorrect re. that issue. Council Member Hamerlik asked why Columbia Road from 12th Avenue to University Avenue as there is not a 12th Avenue (would run through the cemetery). Mr. Grasser stated that prior to doing that project, will be doing an intersection improvement at Columbia and Gateway and the termini of that project will bring them to the vicinity of 12th (even though there isn't a 12th street, are recognizing that not be going all the way to Gateway Drive - and tie into that with the next project.

2.12 Preliminary engineering agreement with NDDOT for reimbursement of engineering services on the regional portion of Columbia Road and Gateway Drive (U.S.2)._____
There were no comments.

2.13 Bids for City Projects Nos. 5317 and 5377, Upgrade Lift Stations 6 and 22.
It was noted there was an additional handout on the members' desks. Ms. Voigt reported they had an irregular bid opening on the project, and that Tom Hanson, WFW, who did the design would give a short history on the bidding process and the contractor with the lower bid is in the audience.

Tom Hanson, WFW, reported that the project was advertised with bid opening last Friday, that on Wednesday and Thursday Mr. Smith, Smith Construction, contacted one of their engineers stating he was looking at an alternate piping layout, and bidding an alternate layout, and on Friday morning Mr. Smith discussed it with him; he informed Mr. Smith that basically he had to bid the project as it was laid out; that they didn't have much option that late in the project to look at alternate layouts, too late to put out an addendum; and Mr. Smith indicated that he couldn't accomplish the project in the timeframe that was laid out (as this project coordinates with Simplot to replace pumps in station because of delivery on pumps and looking at the idea of accomplishing the actual change out of the pumps in the three days while Simplot is shut down over Thanksgiving to avoid interrupting their production; they will have another shutdown in the summer for about 3 1/2 weeks but that will be before the pumps will be available to allow them to do that - that the bid they received from Smith Construction had a quote on it which is on the second page of the
additional information which says "..the bid is based on alternate pump/pipe arrange-
ment.." and that is the item they are discussing.

Ms. Voigt stated in the recommended council action this contract was set up in two parts, electrical and general/mechanical portions, separate envelopes and separate contractors,
and recommending that they award the electrical contract to Rick Electric, Inc. and the
general portion to Industrial Contract Services, Inc.
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John Smith, owner of Smith Construction Company, stated that Mr. Hanson explained the
difficulty of the job and read portions from the contract and bidding documents including "...contractors examine carefully and study contract documents and other related data identified in the bidding documents. Contractor has visited the site and become familiar with them and is satisfied as to the general local and site conditions that may affect cost progress and performance of the work." He did that, went to the site, investigated what was there, measured what was there, given the difficulty of the project that Mr. Hanson alluded to, after reviewing he called the engineer re. to the shut down in November and that it was from November 28 at 8:00 a.m. until noon on the 1st (76 hours) and that if the work not completed by noon on December 1, 2002 the contractor will be assessed liquidated damages of $500/hour until the station is in full operation - that keeping Simplot in business is key to this project and in pursuing how to do this a better way, that in doing investigations as supposed to, he finds out there is a summer shutdown where he can do some preparatory work, move some valves so that in the fall after Simplot's begun their operation when the pumps and the electrical gear arrive, he doesn't need to shut Simplot down at all, no time crunch and done the difficult work in the summertime, better job, safer job, obviously cheaper job if you have the bid tabs., the other bidders who didn't do their homework like he did, were $60,000 to $100,000 higher, and now his dilemma is how does he go about getting this job - that if he goes to the City and says he has this better idea and needs an answer if the City will accept it or not, the City is obligated to share that information with all the other plan holders - that he put the condition on it saying he is going to do this job better, safer, quicker, cheaper if the City accepts his method - that he took it to the engineer, discussed it and his analysis of it is, that it is better, because at 4:00 p.m. this afternoon the plan was not just to eliminate his bid and go to the second bidder, one of the plans they talked about was to eliminate all the bids, do a quick readvertising, use his idea and let everybody else bid it -

Council Member Gershman asked what is the need to share an idea with competitors, whether federal regulation because of federal funds or state or City policy. Mr. Swanson stated the law in North Dakota for public projects (as it is in virtually all states) require that each bidder bid on a uniform plan or specification, it simply does not allow one to come forward with a better plan without having all bidders being able to bid on the same footing and equal playing field - despite the comments which he doesn't disagree with Mr. Smith and his quotation of the bid documents are accurate, law overrides the bid documents and provides that if there is a non-responsive bid that if he alters the means, methods, materials that is not allowed other bidders, it is considered a non-responsive bid and cannot be acted upon - the process to accept that would have been to solicit the input of the engineer, to change whatever specs. or plans or process that was required and would have to be published to all bidders.

Mr. Swanson stated the laws on bidding which Mr. Smith is familiar with, are very tight and if we use the same process or procedure you are proposing, this body doesn't know if another contractor would even be lower than you - the point of it is, as he understands as
the engineers explained to him this afternoon, the plans and specs. provided the process determined by the City in how to do the project, Mr. Smith has come up with a different method to perform the project - the law in ND is pretty clear, bidders have to be on an equal footing on a level playing field on how to do the project - one of the options council
has is to reject all bids, re-establish your bids and specs and rebid the project - the question that comes into play is, is it a material deviation, and if it is, the law in ND is very clear, you
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cannot accept it. He stated that he understands the bid specs. are very specific on how the project is perceived and would defer to the engineering department - that he can tell what the law is - it is undisputable - if you find a material deviation that gives one bidder an advantage over the other bidders, you cannot accept it, despite the better mouse trap.

Council Member Glassheim asked if it was up to the council to determine whether it's a material difference; Mr. Swanson stated it is - the test would be whether or not you had a rational basis to determine that it was or wasn't a material change in the plans and specs.
Council Member Glassheim stated they would need a copy of the plans and specs or portion of it which is being discussed to determine whether it's absolutely locked in that it must be done in a certain way - Mr. Swanson stated whether you get recommendations from staff or engineer. Mr. Hanson stated he would provide that information.

Ms. Voigt stated they met briefly with Mr. Smith this afternoon, won't discredit his idea, thinks it's a great idea, but strongly urge you not to go against Mr. Swanson's advise; Mr. Smith had a way of getting this into an addendum if he had been more timely in contacting Mr. Hanson and could have shared all the information. Mr. Grasser stated its very important to maintain the sanctity of the bid so all the bidders are bidding the same project - the mechanism to address this very simply is the base project gets bid - after the project and there is risk to the contractor, is that come back and says can improve this by some minor changes and if the City will accept it - risk to the contractor is that the City may or may not decide to accept that - but that is the process that you use and that is what was circumvented here - their recommendation is to follow the interpretation of the specs. and Mr. Swanson's interpretation of the law and award to the lowest responsible bidder.

There was some discussion re. funding for the project - which is budgeted in the sewer utility fund (cash reserves) (Mr. Smith's bid is approx. $65,000 lower than the next low bid).

Mr. Hanson stated that the liquidated damages were there because Simplot informed them that their cost of being down is $250,000 day and didn't feel that was appropriate liquidated damage so went to something that was middle ground between those two to try to set something that established that it was very important to get that back on line, that there are over 100 people whose jobs and payroll checks depend upon having that functional, and tried to address a middle ground. Mr. Hanson stated they discussed the possibility of re-advertising the project - that if do a 3-week advertising which he is told is essential, by the time they could open the bids they miss the window of the shutdown over the summer and the proposal that Mr. Smith has will no longer work because we've missed that opportunity.

Mr. Gershman asked if this is time sensitive because this project needs to be done now or could it be done next year. Mr. Hanson stated that's what happened with the new
treatment plant is unable to deliver during peak flows for the city, unable to deliver all the water that Simplot uses to the new treatment plant and that's why these pumps being done now so it is absolutely critical for their continued operation.

Council Member Gershman asked if they could fast track the bidding process; Mr. Swanson stated it is possible but would want to look at that and may need guidance from the engineering department as to what plans and specs. would have to be altered and how
long it would take to get that out, Mr. Hanson stated they would have them done in 2 days, done by Friday.


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Council Member Christensen stated if they are going to accept this bid, have to have something in written form that tells us whether or not Mr. Smith's ideas are material change or not, and if don't have that are on very thin ice in making that decision; there is always a probability that someone will sue someone, that isn't the issue, the issue is whether or not there is or isn't a material change, and if there isn't a material change, could accept this bid and save the taxpayers $65,000, if not, he would be voting to reject all bids and rebid it; that he knows Mr. Smith very well but more important that look at the broader picture here for the citizens and respect the integrity of the process - that he would want written opinion from the consulting engineer that says whether this is or isn't material and would like addendums to that so they can determine if there are changes in these plans and a memo as to what the timeline would be if they rebid this project. Mr. Hanson stated they would have info in packets by Friday.

2.14 Plans and specifications for Project No. 5320, District No. 90, paving Library Circle
from South 17th Street to the intersection 300 feet east of the Public Library and
South Library Circle from South 17th Street to Library Lane.___________________
It was noted that the engineering department prepared the specifications. Council Member Christensen stated they are proposing using reconstruction funds, 80% City and
20% assessment, and what is source of the 80% money - The city auditor reported Highway User Funds and that the 27% is only charged against the assessed amount.

INFORMATION ITEMS

3.1 Night bus report.
There were no comments.


MAYOR AND COUNCILMEMBER COMMENTS

1) Council Member Brooks thanked the City for response to the flooding in our region and the efforts to take leadership role and also thanked the citizens.

2) Council Member Hamerlik stated he had talked to Mr. Duquette re. the issue which continues in his area - Springfest - that he had asked for a report, that lot has to do with the Park District and committee was called by mayor and been a meeting or two, but need a report - many people in that area are concerned. Mr. Duquette reported they had meetings with Park District and the University of ND and hopes to have something back in mid or end of July with sense of where going.

3) Council Member Glassheim stated there were two articles in today's Herald on small towns around us on housing projects, which seem to be interesting and innovative, hoping we might look at those (one town buying and tearing down houses that are not in good condition); and that we continue being creative and trying things to do with housing.

4) Council Member Gershman stated that the night bus numbers have almost doubled and that seems to be working quite well; he stated that tonight is the first night of the 7-member
council and thought the discussion was very good; that there were a couple people very
Committee of the Whole - 6/25/02 - Page 9

much involved in that process to get us to the point of having 7-members, Mr. Christensen worked on it and he worked on the campaign - but recognized Mr. Glassheim who chaired a committee that came forward with recommendations and Mr. Brooks - thanked those people and others that were involved in this and hopes that it continues to work well.

5) Council Member Christensen thanked the citizens of Ward 5 for re-electing him and wants to tell the citizens that Bob Klave was a great councilperson and will be missed up here, and hopes he can continue in that tradition. He stated that Mr. Brooks and Mr. Lucke for the initiative they showed in beginning the process that got us to the 7-person council, and congratulated them and the committee for the changing of the size of the council, and looks forward to working with this group.

6) Council Member Kerian stated as she was campaigning people questioned why they can't speak at the committee of the whole, and wants to let people understand that they can and invite people to come and speak to the committee of the whole and to the council.

7) Council Member Kreun thanked everyone very much and hope they can move forward.

8) Mr. Swanson stated that he will forward a copy of Ordinance No. 3916 to the council tomorrow and that would allow you to review that in advance of next week.

9) Mayor Brown thanked council members who left tonight and thanked them for their service and not to forget lunch with the mayor tomorrow at Joe diMaggio's.

Council Member Christensen stated that on the radio he heard one of the representatives from MN speak about getting money for Roseau and Warroad and talking about CDBG funds, that we have an urban development staff that really knows what's going on in that area right now and if the Mayor is so inclined to direct the staff to lend their assistance to the people in Roseau and Warroad that would be administering these funds. Mr. Duquette stated they have assembled a team involving Urban Development, Health, Public Works, Engineering, and notified the Mayor of Roseau regarding that team so we stand ready, there has been some involvement by the Health Department and Public Works and we're prepared to provide that expertise at their call.

Council Member Brooks applauds that and any assistance we can give them, that in MN those funds flow a different way but any assistance we can give them will be greatly appreciated. Council Member Hamerlik stated that we should not forget about Mahnomen and Ada, because things are on hold there also.

ADJOURN

It was moved by Council Member Gershman and seconded by Council Member Brooks that we adjourn. Carried 7 votes affirmative.

Respectfully submitted,



John M. Schmisek, City Auditor