City of Grand Forks, North Dakota

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PROCEEDINGS OF THE CITY COUNCIL
OF THE CITY OF GRAND FORKS, NORTH DAKOTA
February 17, 2009

The city council of the city of Grand Forks, North Dakota met in the council chambers in City Hall on Tuesday, February 17, 2009 at the hour of 5:30 o’clock p.m. with Mayor Brown presiding. Present at roll call were Council Members Bjerke, McNamara, Gershman, Christensen, Bakken, Kreun - 6; absent: Council Member Glassheim - 1.

Mayor Brown announced that anyone wishing to speak to any item may do so by being recognized prior to a vote being taken on the matter, and that the meeting is being televised.

Mayor Brown commented on various items during the past week and upcoming events:
That FEMA (Federal Emergency Management Agency) is holding an informational meeting on flood protection at the Public Library on Thursday, February 19 from 3:30 to 7:30 p.m. - good idea to consider all options including flood insurance.
Reminder that the City Council and UND Student Senate will be meeting in a joint session this Sunday at 4:30 p.m.

He offered a Resolution in Memorium to Dr. Thomas J. Clifford, President Emeritus of the University of North Dakota in conjunction with the mayor and city council.

ND LEGISLATIVE UPDATE

Pete Haga, Community/Government Relations Officer, reported this is the last week before crossover, and reviewed his report on updates, that we continue to provide testimony and support on various bills and continue to work with legislators on those bills. A tracking document had been placed on council member desks and most of that information would be available on the website. The state landfill bill that Mr. Glassheim put forward was amended to a study but it did pass in the House.

APPROVE APPLICATION FOR ABATEMENT OF
2007 TAXES FOR PROPERTY AT 821 LETNES DRIVE

The staff report from the city assessor relating to application for abatement for 2007 taxes by John and Inga McDonald, 821 Letnes Drive, with recommendation to recommend to Board of County Commissioners that the application be approved as submitted.

It was moved by Council Member Bakken and seconded by Council Member McNamara that this recommendation be approved and further that we adopt the findings, conclusions and recommendations as prepared by the city attorney. Upon call for the question and upon voice vote, the motion carried 6 votes affirmative.

APPROVE APPLICATIONS FOR EXEMPTION OF
REMODELING TO RESIDENTIAL/COMMERCIAL
BUILDINGS

The staff report from the city assessor relating to applications for exemption of remodeling improvements to residential. or commercial buildings as listed, with recommendation to grant exemption of increased value for three (3) years: 2101, 1st Avenue North, 709 South 10th Street, 904 Letnes Drive, 1328 Linden Court, 823 Oak Street, 915 South 11th Street, 713 Walnut Street and 2910 Chestnut Street.

It was moved by Council Member Bakken and seconded by Council Member McNamara that this recommendation be approved. Carried 6 votes affirmative.

APPROVE PLEDGED COLLATERAL REPORT

The staff report from the finance department relating to pledged collateral report as of December 31, 2008 with total deposits of $15,214,303 which were collateralized by $28,980,153.29 in pledged securities and satisfies the required pledge amount; with recommendation to approve the report.

It was moved by Council Member Bakken and seconded by Council Member McNamara that this recommendation be approved. Carried 6 votes affirmative.

APPROVE AMENDMENT TO COST PARTICIPATION
AND MAINTENANCE AGREEMENT AND BUDGET
AMENDMENT FOR PROJECT NO. 6338

The staff report from the engineering department relating to amendment to Cost Participation and Maintenance Agreement and budget amendment for Project No. 7338, Rehabilitate DeMers Avenue Skyway Bridge, with recommendation to approve amendment to agreement with NDDOT for Project No. 6338, Rehabilitate DeMers Avenue Skyway Bridge, and approved budget amendment in the amount of $113,382, increased City share for project.

It was moved by Council Member Bakken and seconded by Council Member McNamara that this recommendation be approved. Upon call for the question and upon voice vote, the motion carried 6 votes affirmative.

APPROVE PROJECT CONCEPT REPORT FOR PROJECT
NO. 6272, CHERRY STREET RECONSTRUCTION

The staff report from the engineering department relating to Project Concept Report for Project No. 6272, Cherry Street Reconstruction from 17th Avenue South to 25th Avenue South, with recommendation to approve the Project Concept Report, concur that the project should continue to be advanced, concur with the project concepts as proposed and select Alternate B, Reconstruction of a 37 ft. wide urban section from 17th Avenue South through the intersection of 25th Avenue South.

It was moved by Council Member Bakken and seconded by Council Member McNamara that this recommendation be approved. Upon call for the question and upon voice vote, the motion carried 6 votes affirmative.

APPROVE AMENDMENT NO. 1 TO ENGINEERING
SERVICES AGREEMENT FOR PROJECT NO. 6272

The staff report from the engineering department relating to Amendment No. 1 to engineering services agreement with CPS for Project No. 6272, Cherry Street Reconstruction from 17th Avenue South to 25th Avenue South, with recommendation to approve Amendment No. 1 in the amount of $126,655.
It was moved by Council Member Bakken and seconded by Council Member McNamara that this recommendation be approved. Upon call for the question and upon voice vote, the motion carried 6 votes affirmative.

APPROVE URBAN FEDERAL AID PROJECT AGREEMENT
FOR PROJECT NO. 6273, DISTRICT NO. 637, PAVING
PORTION OF NORTH 51ST STREET

The staff report from the engineering department relating to Urban Federal Aid Project Agreement for Project No. 6273, District No. 637, paving North 51st Street from Gateway Drive to 10th Avenue North, with recommendation to approve Urban Federal Aid Project Agreement with NDDoT for Project No. 6273, District No. 637, Federal Project #SU-6-986(083)087, and approve budget amendment in the amount of $97,887.

It was moved by Council Member Bakken and seconded by Council Member McNamara that this recommendation be approved. Carried 6 votes affirmative.

APPROVE APPOINTMENT TO CIVIL SERVICE
COMMISSION

The staff report from Mayor Brown relating to appointment to the Civil Service Commission, with recommendation to approve appointment of James Vanyo to the Commission for a three (3) year term.

It was moved by Council Member Bakken and seconded by Council Member McNamara that this recommendation be approved. Carried 6 votes affirmative.

APPROVE APPLICATIONS FOR RENEWAL OF
ALCOHOLIC BEVERAGE LICENSES FOR M & J
PROPERTIES, LLC DBA GILLY'S BAR & GRILL AND FOR
GCS INVESTMENTS, INC. DBA O'REALLY'S IRISH PUB/
LEVEL 10 WITHOUT PAYMENT OF TRANSFER FEES

The applications for renewal of alcoholic beverage licenses to determine whether transfer of ownership interests have occurred requiring the payment of a transfer fee for M & J Properties, LLC dba Gilly's Bar & Grill and for GCS Investments, Inc. dba O'Really's Irish Pub/Level 10, with no recommendation from the Service/Safety Standby Committee.

Council Member Kreun moved that we approve the transfer of the license with no transfer fee. Council Member Christensen seconded the motion.

Council Member Gershman asked to be recused from voting on this matter, and it was so moved by Council Member Bjerke and seconded by Council Member Bakken. Carried 5 votes affirmative.

Council Member Kreun reported that in their discussion with the license holder that there has been some activity but has been better in the past year, that is not a part of the motion but license was up for renewal and they understand there are some responsibilities that go along with the renewal of that license.

Upon call for the question and upon voice vote, the motion carried 5 votes affirmative, Council Member Gershman recused from voting on this matter.

ORDER TWO DAY SUSPENSION OF ALCOHOLIC
BEVERAGE LICENSE ISSUED TO BLUES, BREWS
& BAR-B-QUES, INC.

The staff report from the Service/Safety Standby Committee relating to application for renewal of alcoholic beverage licenses for 2009 from Blues, Brews & Bar-B-Ques, Inc. dba Muddy Rivers, with recommendation that a two-day suspension of the license be imposed on March 13 and 14, 2009.

It was moved by Council Member Kreun and seconded by Council Member Bakken that this recommendation be approved.

Council Member Gershman asked to be recused from voting on this matter, and it was so moved by Council Member Bjerke and seconded by Council Member Bakken. Carried 5 votes affirmative.

Council Member Kreun reported there had been a background investigation into the application for license and one of the owners was convicted of obstructing a police officer in October, 2007, and she was given a fine of $225.00, 40 hours of community service and one year unsupervised probation and a one year deferred imposition, and the date of the imposition came from the same day that the violation occurred.

Mike Blackmun, license holder, reported that the individual who was convicted was not an owner, that he appeared before the Service/Safety Committee today and stated that he wasn't present at the incident and not present for any of the legal proceedings, and that this happened in October, 2007, and feels that he needs legal representation because he doesn't understand some of the things that took place, that he appeared before the Committee and asked for a furtherance, that the attorney who handled the case would appear before the committee but was out of town today, that Committee denied his appeal to appear before them at the next meeting. Council Member Kreun stated that the individual who was convicted was included in the license application, that she indicated she was the owner in the complaint and last week gave Mr. Blackmun the opportunity to bring forth any other information at today's committee meeting, but no new information was provided. He stated this is a renewal of an application and up to the city council and council members to represent the citizens of Grand Forks and that they came up with this penalty and was a council decision.

Howard Swanson, city attorney, stated it is his opinion that the city council has the discretion to issue an order of suspending the license, and it is his understanding that the committee found that the incident which occurred at Muddy Rivers constitutes an obstruction of an officer attempting to investigate a potential crime at that location, there are several provisions of City Code that come into play, "..any employee, manager, owner or agent of a license holder…" under Section 21-0212 that commits a crime or that inappropriate activity is attributable to the owner whether they are present or knowing of that conduct. Under Grand Forks City Code Section 21-0216 a police officer is to be allowed the opportunity to enter a licensed premise at any time to investigate conduct on the licensed premises, and is another finding that the Committee made today, but as far as whether you have the authority to order a suspension or not, whether the facts are sufficiently stated to find a factual basis for an order of suspension, those are discretionary decisions of the committee and the council.

Council Member Christensen stated that this license had been renewed in 2008 with this charge pending, and questioned why that wasn't brought to the attention of the committee. Mr. Kreun stated that at that time the individual had not been convicted of a crime and committee took no action but was concern to the members and as this came forward and conviction had taken place, the committee took action and it is up to the council to either follow that or not.

Council Member Christensen stated that when he has had occasions to represent people who might be losing their license at the A.G.'s Office, have the ability sometimes to negotiate when the suspension will occur - respect committee's action but in doing this it is a change in policy and that those that are affected should be well aware of the change of policy

Mr. Swanson stated for the record, there is no change in the policy with respect to a police officer having access to a licensed premise, not only is right above the signature line for a license renewal and a license application, there is a specific Code provision. That allowing police officers on a licensed premise is a crucial element of enforcement of Chapter XXI and do not believe that position is changed by the City or the police department. Mr. Christensen stated that in the past all the suspensions that have been conducted in this city have come at the Attorney General's Office, that we grant the person his license and then suspend it for two days, and if the conduct is that egregious the Attorney General's Office will also issue as it will be reported to them and the suspension will come from the Attorney General's Office.

Council Member Bjerke stated we have not changed policy but just started enforcing some things, and that the Hospitality Assn. has received the message that we are going to be doing some things differently, that it is a privilege, not a right, but we have a lot of taxpayer money invested in this issue first thing government should be doing is public safety, that we are going to have another meeting concerned with liquor ordinances, etc. and are going to make sure the citizens are protected.

Council Member Bakken stated that the Committee has been saying to the Hospitality Industry for some time that there are going to be changes and they have had their input on it, and they are fairly well informed, and the days of suspension were picked because of when the incident occurred, the other alternative is not to renew the license. The reason two day suspension was given was because of the seriousness of the event.

Council Member Christensen asked if the motion was passed for the suspension, does that information go the Attorney General's Office and if there is another possibility for another suspension. Mr. Swanson reported that the State does issue a separate license, apart from what the City issues, whether the State would take an enforcement action, but legally could.

Council Member called for the question.

Mr. Blackmun stated they reported the incident to the State, and they saw fit to issue their license, that they submitted their application to the City in December and didn't hear anything until they called in January and were informed the license was under review. He stated there were numerous errors in the police report, many inconsistencies in the way this was played out, and disagrees with what is going on; and can't have an attorney to explain the finer points of what happened with the litigation.

Council Member Bakken stated that with or without a conviction the City still has the authority to review this license and impose a penalty or restrict the license for not allowing a police officer on the premise. Mr. Swanson stated that is his opinion, and believes the council has the right to evaluate the conduct of a license holder, our Code does allow you not only to consider not renewing but suspending a license. With all due respect he will not advise this council that you have to give notice to anyone in the future that if you violate a provision of the City Code or if act contrary to the public well-being and safety, that you have to be given advance notice. The adoption of the City Code in and of itself is sufficient notice. It goes without legitimate debate that on the application itself there is notice, even in renewal application, that violations can be considered, and that he disagrees that the City has any duty or obligation to give notice to an existing license holder or potential license holder that their conduct cannot be considered in the evaluation of an issuance of a license or renewal of a license. That what Mr. Blackmun is saying is that he did not understand that the conviction or a plea to a charge by somebody under the employment of his business or establishment could affect his license. Our Code is clear that can happen.

He stated he thinks the City has given the appropriate notice with respect to this license, the city council could have simply said on December 31, 2008 that we have not renewed your 2009 license and therefore you cannot operate until we take action, that would be a violation of due process and that is why he takes the position that until there is an affirmative act to suspend or revoke a license, that they'll be provisionally renewed. He stated as far as proper notices, the opportunity to be heard have all been met with respect to this issue. The decision is one of your discretion based upon the facts that are provided to you.

Council Member Bjerke stated that Mr. Haga has been notifying the Hospitality Industry on a regular basis about these meetings that have to do with alcohol- the next meeting to be scheduled will be discussion meeting and Hospitality Industry will have opportunity for input.

Upon call for the question and upon voice vote the motion carried 5 votes affirmative, Council Member Gershman recused.

APPROVE BUDGET AMENDMENT FOR 911 PUBLIC
SAFETY ANSWERING POINT

The staff report from the director of PSAP relating to budget amendment for the Grand Forks 911 Public Safety Answering point, with recommendation to approve the budget amendment in the sum of $35,000 for a Department of Homeland Security Supplemental Grant to upgrade the current radio console to a digital console.

It was moved by Council Member Bakken and seconded by Council Member McNamara that this recommendation be approved. Carried 6 votes affirmative.

APPROVE COOPERATIVE PURCHASE VENTURE
FOR SMALL/MEDIUM DUTY ACCESSIBLE BUS

The staff report from the director of public works relating to State of Minnesota/Department of Transportation cooperative purchase venture for small and medium duty accessible bus, with recommendation to authorize Public Transportation to purchase a 2009 Arboc Mobility Spirit Accessible bus via the State of Minnesota/Department of Transportation cooperative purchase venture in the amount of $116,000, with the replacement bus to be used for city bus fixed route service and funded in part via a Federal Transit Administration (FTA) 5309 Capital Grant (grant number ND-04-006) in the amount of $96,280 (83%) with the remaining $19,720 (17%) as local match.
It was moved by Council Member Bakken and seconded by Council Member McNamara that this recommendation be approved. Upon roll call the following voted "aye": Council Members Bjerke, McNamara, Gershman, Christensen, Bakken, Kreun - 6; voting "nay": none. Mayor Brown declared the motion carried.

RECONSIDER COUNCIL'S ACTION RELATIVE TO
MOTION REQUESTING ENGINEERING FIRM TO GIVE
COSTS, INCLUDING ALTERNATIVES OF RECONDITIONING
SMILEY WATER TOWER, WITH PLANS AND SPECS. FOR
NORTH END WATER TOWER, PROJECT NO. 6399

Council Member Christensen moved for reconsideration of council's action on February 2, 2009 relating to consideration of engineering services agreement for Project No. 6399, North End Water Tower Rehab and Smiley Tower Alternative Evaluation, and specifically asking Advanced Engineering Services to give cost, including alternatives of reconditioning the Smiley water tower, with plans and specifications for the north end water tower. Council Member Gershman seconded the motion. Upon roll call vote, the following voted "aye": Council Members Bjerke, McNamara, Gershman, Christensen, Bakken, Kreun - 6; voting "nay": none. Mayor Brown declared the motion to reconsider approved.

Council Member Kreun moved that we proceed with engineering services agreement for reconditioning of the north end water tower and demolition of the Smiley water tower. Council Member Christensen seconded the motion.

Council Member Gershman reported at last meeting that there appeared to be a national group on the "face book" that was interested in doing some fund raising, that he sent out an e-mail relating to the action of the council, and didn't receive any notice back and appears there this sentimentality with it but not lot of history with it, and moved an amendment to the motion to include the painting of "smiley face" on the Purpur water tower, seconded by Council Member Kreun. Carried 6 votes affirmative.

Upon call for the question of the motion, as amended, and upon voice vote, the motion carried 6 votes affirmative.

INFORMATIONAL ITEM

The Portfolio Management/Summary for the period ending January 31, 2009 was presented and read.

INFORMATION RELATING TO LANDFILL DESIGN
SERVICES

Council Member Bjerke reported that there were some decisions made by the Service/Safety Committee regarding the landfill and Mr. Feland made brief presentation.

He reported that the Service/Safety Committee met this afternoon and reviewed landfill progress - that on February 2, 2009 the council passed a motion to proceed with design of the landfill and of the road that leads to the landfill, that they wouldn't proceed until they had received further information and that if should proceed with design would come back to Service/Safety Committee for approval; and that today he asked the Committee to proceed with the landfill design and road design. He stated this approval is not without risk - that the comment period should have ended in late December but ended on February 4 and that we will receive a decision in early April which is approximately two months behind original projection due to no fault of our own but because of people asking for additional time and that the ND Department of Health agreed. He stated he has reviewed the comments that were submitted, and doesn't think that any of those comments are of a substantive nature that would preclude the City of Grand Forks from getting a final permit for a landfill. He stated the opposition has said we have a very thorough permit, with a lot of information there and we have received some compliments to that degree. The design will take about 10 weeks and projection is that we get a final landfill permit in early April, and if we start the design now could have a final design completed by early May and would then be able to bid that project and start construction this summer with a fall completion date. His concern is that if wait and lose a two month period of time will be deal killer to get this done this year. Costs for hauling for 6 months is approx. $750,000 and a year's delay is about $1.5 million - that if looking at final design, road design will cost $105,000, landfill design cost $220,000 so total of $325,000 that we will expend without having the final permit - and with final permit in early April will be halfway through design at that point and prudent that we move forward with the design - prudent risk to proceed and Committee concurred with that.

Council Member Gershman reiterated that its $750,000 to haul and that is $4,109.00/day, burning a lot of gas - that this is a regional landfill, not just for the city and cost the region that amount of money.

Council Member Bjerke stated we are taking somewhat of a gamble if we were denied, but if don't do this, the landfill is not going to open until summer of 2010 and will be at least $750,000 and Committee was unanimous in going forward with this - to get the permit and get the landfill open before next winter.

APPROVE BILL LISTING

Vendor Payment Listing No. 09-04, dated February 12, 2009, totaling $1,026,097.07 were presented and read.

It was moved by Council Member Gershman and seconded by Council Member Bjerke that these bills be allowed and that the city auditor be authorized to issue warrants in payment of the same. Upon roll call the following voted "aye": Council Members Bjerke, McNamara, Gershman, Christensen, Bakken, Kreun - 6; voting "nay": none. Mayor Brown declared the motion carried and the bills ordered paid.

APPROVE MINUTES FEBRUARY 2, 2009

Typewritten copies of the minutes of the city council held on Monday, February 2, 2009 were presented and read. It was moved by Council Member Bjerke and seconded by Council Member Kreun that the minutes be approved as read. Carried 6 votes affirmative.

COMMENTS BY MAYOR AND COUNCIL

1) Council Member Bjerke stated that in looking at meeting on Wednesday and thinks they all want to be involved in budget meetings and how Mr. Duquette and the finance committee comes about this - there are couple options of how they plan to do this and feels sales tax revenue is going to be flat and same with property tax - lot of things to discuss. Council Member Gershman stated that two weeks ago had scheduled meeting on the 26th to address those things and will be a work session of the entire council, and was surprised to see it on the finance committee agenda but that was the original process.

Mr. Bjerke stated that for notification for the rest of council the Service/Safety Committee was given the authority to change the stimulus projects with some changes made, and that they have eliminated everything to do with Public Transit on the stimulus plan and that was per recommendation of Mr. Haugen of MPO.

2) Council Member Christensen stated that the finance committee having meetings every two weeks, thought it was appropriate to begin the conversation as to what the members of the finance committee thought we should be thinking about so alert staff so that Mr. Duquette and other staff persons would have an idea of what they might be thinking about before work session. He stated that he recalls that with budget hearings or matters, that there is a rush to get a budget in by August, and that in December Mr. Glassheim suggested that we have conversations earlier regarding the budget, and thought it was appropriate and will continue at all finance meetings to have additional conversations from staff and/or members of the council or public as to what they think we should be considering. Agrees that we will see a flat sales tax and will be asking Mr. Carsen to give us a briefing as to the expected revenue that we will be receiving from our property tax collection based upon activity we saw in 2008 and what looks to be on the agenda in 2009, and when certain properties will come on line and important for us inasmuch as we don't have a finance director at this point and get this information and that is why put it on the agenda.

3) Council Member Bakken reported that in previous discussion relative to the airport, that the City could probably hire police officer full time and have on staff for same or less money than what paying in overtime at the airport, and wants to make sure that we continue to look at that.

ADJOURN

It was moved by Council Member Kreun and seconded by Council Member Gershman that we adjourn. Carried 6 votes affirmative.

Respectfully submitted,

Saroj Jerath
City Auditor

Approved:
________________________________
Michael R. Brown, Mayor