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FLOOD DIVERSION BOARD OF AUTHORITY Thursday, January 10, 2013 3:30 PM Fargo City Commission Room Fargo City Hall 200 3rd Street North 1. Call to order 2. Approve minutes from previous meeting Item 2. Action 3. Approve order of agenda Action 4. Election of chair and vice chair for 2013 Item 4. Action 5. Program Management Consultant (PMC) update Information/action a. Monthly report (Tom O’Hara) b. Corps of Engineers monthly update (Terry Williams/Brett Coleman) c. Upstream area levees status (Terry Williams) d. Status of Authority Work Directives and Task Orders (Bruce Spiller) e. Approval of new Authority Work Directives (Bruce Spiller) Item 5e. 6. Minnesota DNR presentation (Stuart Arkley/Randall Doneen) Information 7. Committee updates Information/action a. Retention effort update from Red River Basin Commission (Yohe) b. Land Management Committee (Dennis Walaker) • Hardship property status update • Oxbow area community levee MOU (Tom O’Hara) Item 7b. c. Public Outreach Committee (Rodger Olson) • Committee report Item 7c. d. Finance Committee (Michael Montplaisir) • Committee report 8. Voucher approval Item 8. Action 9. Other Business 10. Next Meeting 11. Adjournment cc: Local Media Flood Diversion Board of Authority—December 13, 2012 1 FLOOD DIVERSION BOARD OF AUTHORITY Item 2. DECEMBER 13, 2012—3:30 PM 1. MEETING TO ORDER A meeting of the Flood Diversion Board of Authority was held Thursday, December 13, 2012, at 3:30 PM in the Fargo City Commission Room with the following members present: Cass County Commissioner Darrell Vanyo; Cass County Commissioner Ken Pawluk; West Fargo City Commissioner Mike Thorstad; Cass County Joint Water Resource District Manager Rodger Olson; Fargo City Commissioner Tim Mahoney; Fargo City Commissioner Brad Wimmer; Fargo City Commissioner Mike Williams; Clay County Commissioner Kevin Campbell; and Moorhead City Council Member Nancy Otto. Ex-officio member Gerald Van Amburg, Buffalo-Red River Watershed District, was absent. Staff members and others present: Cass County Administrator Keith Berndt; Fargo City Administrator Pat Zavoral; Moorhead City Manager Mike Redlinger; Fargo City Director of Engineering Mark Bittner; Fargo City Engineer April Walker; Moorhead City Engineer Bob Zimmerman; Cass County Engineer Jason Benson; Tom O’Hara, Program Manager, CH2MHill; Bruce Spiller, CH2MHill; and Terry Williams, Project Manager, Corps of Engineers. 2. MINUTES APPROVED MOTION, passed Mr. Mahoney moved and Mr. Walaker seconded to approve minutes from the November 8, 2012, meeting as written. Motion carried. 3. AGENDA ORDER MOTION, passed Mr. Walaker moved and Mr. Campbell seconded to approve the order of the agenda as presented. Motion carried. 4. PROGRAM MANAGEMENT FIRM UPDATE Program manager consultant monthly report Mr. O’Hara provided an update on activities over the last month including work on permitting, mitigation, and environmental assessment review status; approval of two hardship property acquisitions; presentation for the Cass County Township Officers’ Association meeting; and attendance at other public meetings. Corps of Engineers status update Terry Williams said Corps of Engineers led-design efforts continue to be on schedule and under budget; staff continues to work on the National Environmental Policy Act (NEPA) process to address project modifications; staff is preparing for landowner and public meetings with residents from Oxbow, Hickson, and Bakke Subdivision areas; and Phase II cultural surveys for 2012 have been completed. She briefly reviewed the timeline on post-feasibility and NEPA actions and decisions anticipated through July, 2013. Flood Diversion Board of Authority—December 13, 2012 2 Task orders update Mr. Spiller reviewed the status of existing task orders with the board. He also provided an update on five amended task orders with the Houston-Moore Group (HMG), which total $231,000 and involves project management services; post-feasibility engineering analysis; work-in-kind (WIK); hydrology and hydraulic modeling; and levee design and design support. MOTION, passed Mr. Wimmer moved and Mr. Mahoney seconded to approve amended Task Orders with HMG in the amount of $231,000. On roll call vote, the motion carried unanimously. Demonstration of staging area flood impact animation Lee Beauvais from Moore Engineering provided a demonstration of map animations depicting locations within the upstream staging area of the proposed diversion project during different flood events. 5. UPDATES FROM COMMITTEES Retention efforts update from Red River Basin Commission Jon Evert was present to provide an update from the Red River Basin Commission. He outlined numerous presentations given over the last month regarding retention efforts and possible modeling options to use on the project. Land Management Committee Mr. Walaker provided an update on topics discussed at the Land Management Committee meeting held earlier this afternoon, including completion of two hardship buyouts and one additional buyout scheduled in the spring; update on the Oxbow, Hickson, and Bakke Subdivision ring levee; discussion on the property tax shortfall to the Kindred School District; Bank of North Dakota mortgage financing; and update on special assessment districts. Bank of North Dakota Financing Mr. Vanyo said he recently spoke with an official from the Bank of North Dakota (BND) regarding new mortgages and refinancing mortgages. There have been concerns raised by residents in the staging area that it is difficult to obtain financing because of the proposed diversion project. The state may be in a better position to help since they understand the issues. The Bank of North Dakota has a $275,000 ceiling on loans, and the committee approved to work with the state to raise the ceiling. MOTION, passed Mr. Olson moved and Mr. Walaker seconded to work with the Bank of North Dakota to raise the maximum loan amount from the current $275,000 cap. Motion carried. Mitigation for Oxbow/Hickson/Bakke Subdivision Staging Area Mr. Vanyo said the committee discussed development of a mitigation policy that would allow work on levees in Oxbow, Hickson and Bakke Subdivision (staging area) to begin sooner than buyouts of individual properties. The committee approved the following statement regarding mitigation measures for the staging area: Flood Diversion Board of Authority—December 13, 2012 3 “In order to provide early protection and reduce uncertainty for communities and property owners in the staging area, the Diversion Board of Authority is willing to fund mitigation measures like ring dikes or levees and all supporting infrastructure early in the project timeline and even prior to authorization. If a community or property owner decides not to accept the early protection offered, then property acquisition will follow the federal guidelines and timelines, which currently call for acquisition no earlier than 2018 for property in the staging area.” Mr. Wimmer believes this statement shows a good faith effort by the Diversion Board of Authority, and takes these areas out of limbo sooner. Ms. Otto said the Finance Committee discussed the expenses associated with a ring dike/levee around Oxbow, and estimated costs at $25 million for property buyouts and $25 million for construction of the levee. Mr. Olson said the statement also addresses that the board will follow federal guidelines for all property buyouts, which he believes is an important component. MOTION, passed Mr. Pawluk moved and Mr. Walaker seconded to approve the mitigation statement as presented. Motion carried. Public Outreach Committee Mr. Olson said the Public Outreach Committee met on December 12th, and he provided an update on topics discussed including meetings with the Township Officers’ Association and Horace community; a community meeting to be held in January with landowners from the Oxbow, Hickson and Bakke Subdivision areas; and an outreach meeting to be held in March with residents from the Argusville and Harwood area. Daron Selvig from AE2S said the Fargo/Moorhead/West Fargo Chamber of Commerce is developing a task force consisting of business leaders to focus on permanent flood protection for the area; new alignment maps have been posted on the website; and the next edition of the e-newsletter will be distributed on December 17th. Finance Committee Mr. Montplaisir said the Finance Committee met on December 12th, and he provided an update on the following topics: CH2MHill contract extension MOTION, passed Mr. Wimmer moved and Mr. Pawluk seconded to approve a sixmonth contract extension with CH2MHill ending June 30, 2013 for the purpose of program management consultation and basic program management services for the FM Area Flood Diversion Project. On roll call vote, the motion carried unanimously. Flood Diversion Board of Authority—December 13, 2012 4 Joint Water Resource District to lead development of assessment district plan Mr. Montplaisir said the committee recommends the Cass County Joint Water Resource District (CCJWRD) be assigned to develop a special assessment district plan for the North Dakota local cost share. Mr. Campbell discussed the Minnesota cost share and said the State of Minnesota will pay for construction costs, and options will need to be considered later on how to pay for operation and maintenance costs. Mark Brodshaug, Chairman of the CCJRWD, was present. He briefly discussed the tasks of the Cass County Joint Water Resource District, Finance Committee and Diversion Project Assessment Committee (DPAC) in the development of a special assessment district. The DPAC will consist of 11 people and will be comprised of five CCJRWD members; one City of West Fargo representative; three City of Fargo representatives; and two Cass County representatives. MOTION, passed Mr. Mahoney moved and Mr. Wimmer seconded to assign the Cass County Joint Water Resource District (CCJWRD) to develop a special assessment district plan for the North Dakota local cost share of the FM Area Flood Diversion Project. On roll call vote, the motion carried unanimously. Houston-Moore Group (HMG) adjusted rate schedule for 2013 The Houston-Moore Group has requested a 4% increase in its rate schedule for 2013. The committee approved the request effective July 1, 2013. Mr. Mahoney said many people are not receiving a cost of living adjustment given the state of the economy. Mr. Pawluk asked what circumstances have changed to warrant the increase. Mr. Berndt believes it is due to inflation. Mr. Wimmer suggested the item be tabled and that the Finance Committee re-address the topic next month in order for HMG to provide additional information regarding the request. The board agreed to table the item. Kindred School District fact sheet The Kindred School District requested the Diversion Board of Authority reimburse the school district for revenues they claim were lost because of a 20% reduction in property tax valuations for Oxbow, which was granted by the State Board of Equalization. Mr. Montplaisir said the school district did not lose any tax dollars; Oxbow residents will pay less in taxes, and the remaining residents of the school district will pay more to compensate for the reduction. Mr. Vanyo said since the school district did not lose any revenue, the board is not responsible to reimburse the school district. MOTION, passed Mr. Mahoney moved and Mr. Pawluk seconded to authorize the chairman to send a letter to the Kindred Public School District indicating since there was no loss in revenues as a result of the 20% reduction in taxable valuation for Oxbow, no reimbursement will be given to the school district. Motion carried. Flood Diversion Board of Authority—December 13, 2012 5 6. VOUCHERS, Approved MOTION, passed Mr. Mahoney moved and Mr. Wimmer seconded to approve the vouchers as presented. On roll call vote, the motion carried unanimously. 7. NEXT MEETING DATE The next meeting will be held on Thursday, January 10, 2013, at 3:30 PM. 8. ADJOURNMENT MOTION, passed On motion by Mr. Wimmer, seconded by Mr. Walaker, and all voting in favor, the meeting was adjourned at 4:50 PM. Minutes prepared by Heather Worden, Cass County Administrative Assistant ARTICLE 5. QUORUM AND VOTING Section 5.01. Quorum. (a) A quorum to transact business at any meeting of the Diversion Authority Board requires attendance by a majority of the voting Authority Board Members. (b) If a quorum is not present at any regular or special meeting of the Diversion Authority Board, the Authority Board Members that are present may not take action upon any matter other than to continue the meeting to a future date, time and place. Section 5.02. Action by the Diversion Authority Board. The number of votes required to approve a matter before the Diversion Authority Board is governed by the Limited Joint Powers Agreement. ARTICLE 6. OFFICERS Section 6.01. Elections of Officer. The officers of the Diversion Authority Board shall consist of a chair (the "Chair") and a vice-chair (the "Vice-Chair"). The Diversion Authority Board may also establish an office of the secretary (the "Secretary") and a treasurer (the "Treasurer"). At the first regular meeting of the Diversion Authority Board and at at the first meeting of the Diversion Authority Board held each calendar year, the Diversion Authority Board shall elect such officers. Each officer shall serve until his or her successor is elected and qualified, unless sooner removed pursuant to these Bylaws. The Chair and the Vice-Chair must be Diversion Authority Members. Neither the Secretary nor the Treasurer must be members of the Diversion Authority Board. The office of Secretary and Treasurer may be held by the same individual. Section 6.02. Removal of Officers. Officers may be removed by a 2/3 vote of the Diversion Authority Board at any time, with or without cause. Section 6.03. Vacancies. A vacancy in an office because of death, resignation, removal, disqualification, or other cause may be filled for the unexpired portion of the term in the manner determined by the Diversion Authority Board. Section 6.04. Officer Responsibilities. (a) Chair. The Chair shall be the principal executive officer of the Diversion Authority. The Chair shall preside at at all meetings of the Diversion Authority Board of Directors, shall appoint all committee members as needed, shall sign and execute all authorized contracts, notes or other obligations in the name of the Diversion Authority, unless otherwise authorized by the Diversion Authority Board, shall call special meetings of the Diversion Authority Board when the Chair deems it necessary, and shall do and perform, in addition to the usual duties pertaining to the office, such other duties as from time to time may be assigned by the Diversion Authority Board. 4 Item 4. AWD_SUMMARY_01-10-2013R2.DOCX 1 Authority Work Directive (AWD) Summary Date: January 10, 2013 Houston-Moore Group AWD Summary Amount ($) AWD-00021 Work-In-Kind – Geomorphology Consultation 10,000 AWD-00022 Hydrology and Hydraulic Modeling 24,000 AWD-00023 Hydrology and Hydraulic Modeling 9,000 Total of Task Orders 43,000 Item 5e. AWD_SUMMARY_01-10-2013R2.DOCX 2 AWD-00021 $10,000 Work-In-Kind No Schedule Extension Description: AWD-00021 provides Work-in-Kind services as requested by USACE. Geomorphology Consulting: Provide additional time for a senior engineer to provide ongoing engineering consultation, and assist USACE with responses to Minnesota Department of Natural Resources (MN DNR) comments and questions regarding Geomorphology issues. Background: USACE requested the Diversion Authority to assist with the MN DNR workshop in December 2012. After that workshop, additional engineering consultation support was identified to assist with responses to MN DNR questions and comments. The work is creditable as Work-in-Kind. The estimate for this additional work is $10,000. This scope will be incorporated into Task Order 8, subtask 2.E.IV, under a future Amendment, and costs will be allocated from the On-Call Services allowance. AWD-00022 $ 24,000 Hydrology and Hydraulic Modeling No Schedule Extension Description: AWD-00022 provides Hydrology and Hydraulic (H&H) consultation services. Maple River Aqueduct Physical Model: Provide additional assistance, including participation in bi-weekly conference calls, through January 2013 and provide additional technical information and support to USACE in preparation for the Maple River Aqueduct Physical Model Design Charrette. Background: USACE requested the Diversion Authority to provide the above described work as creditable Work-in-Kind assistance. The estimate for this additional work is $24,000. This scope will be incorporated into Task Order 9, subtask 2.F.IV, under a future Amendment, and costs will be allocated from the On-Call Services allowance. AWD-00023 $ 9,000 Hydrology and Hydraulic Modeling No Schedule Extension Description: AWD-00023 provides Hydrology and Hydraulic (H&H) consultation services. Update HEC-RAS Model: Update the HEC-RAS model geometry so that flow does not pass from the Wild Rice River to the Red River control structure. This modeling update will incorporate the geometry geometry of the connecting channel between the Wild Rice and Red Rivers. Background: USACE requested the Diversion Authority to provide the above described work as creditable Work-in-Kind assistance. The estimate for this additional work is $5,000. This scope will be incorporated into Task Order 9, subtask 2.F.VII, under a future Amendment, and costs will be allocated from the On-Call Services allowance. AWD_SUMMARY_01-10-2013R2.DOCX 3 Update HEC-RAS Model: Develop 20-year Existing Conditions models and provide floodplain mapping for the Staging Area. This modeling will provide a better understanding of upstream Staging Area water surface elevations during intermediate events (between the 10-year and 50-year events). This information will be used to support the USACE’s work with the MN DNR. Background: USACE requested the Diversion Authority to provide the above described work as creditable Work-in-Kind assistance. The estimate for this additional work is $4,000. This scope will be incorporated into Task Order 9, subtask 2.F.VII, under a future Amendment, and costs will be allocated from the On-Call Services allowance. DP-00022 -OXBOW DEMANDS FINAL.DOCX PAGE 1 OF 2 FM AREA DIVERSION PROJECT Oxbow Levee Community Conditions MOU DECISION PAPER NO.: DP‐00022 Date: 1/10/2013 RECOMMENDED FOR DIVERSION AUTHORITY BOARD ACTION: Motion is made that the Board of Authority adopts the concepts outlined in the draft Memorandum of Understand (MOU) between the Authority and the City Of Oxbow included in Attachment 1. The MOU is in response to the City of Oxbow’s requested conditions for support of the Oxbow Area Levee construction. The Board further directs the Authority staff to continue negotiations with the City of Oxbow and directs that the final MOU be presented back to the Board for approval at the February 2013 Board meeting. SUMMARY OF DECISION TOPIC: The City of Oxbow has submitted a request with 12 conditions of their agreement to construct a ring levee to protect properties from floodwater. Seven of the conditions are addressed by Corps of Engineers policies and do not require Board action. Five of the conditions require a response from the local sponsor, the Flood Diversion Authority. In attempting to resolve these requests, a number of discussions have taken place between Authority and City of Oxbow staffs. During these discussions, the City Of Oxbow requested a Memorandum of Understanding (MOU) be developed to clearly capture what both sides were agreeing to. The attached MOU is the preliminary draft version of that MOU. This preliminary draft version of the MOU is nonbinding and speaks only to the intent of the parties to continue to work toward an acceptable solution. This MOU will now be coordinated between both the City of Oxbow and the Authority staff to refine the details and ensure that all the City’s requests are adequately addressed in a way that is acceptable to the Authority. The final version of this MOU will be presented back to the Diversion Authority Board at its February 2013 meeting. Submitted by: 01/07/2013 Tom O’Hara CH2M HILL Program Manager Fargo‐Moorhead Area Diversion Project Date Attachment 1: Draft Memorandum of Understanding Item 7b. DECISION PAPER DP-00022 -OXBOW DEMANDS FINAL.DOCX PAGE 2 OF 2 Brian C. Berg, Clay County Administrator Michael J. Redlinger, Moorhead City Manager Concur: 01/07/2013 Non‐Concur: Concur: 01/07/2013 Non‐Concur Keith Berndt, Cass County Administrator April Walker, Fargo City Engineer Concur: 01/07/2013 Non‐Concur: Concur: 01/07/2013 Non‐Concur Mark Bittner, Fargo Director of Engineering Pat Zavoral, Fargo City Administrator Concur: 01/07/2013 Non‐Concur: Concur: Non‐Concur David Overbo, Clay County Engineer Robert Zimmerman, Moorhead City Engineer Concur: 01/07/2013 Non‐Concur: Concur: 01/07/2013 Non‐Concur Attachment 1: Preliminary Draft, subject to review and update by both parties. MEMORANDUM OF UNDERSTANDING CITY OF OXBOW, NORTH DAKOTA AND METRO FLOOD DIVERSION BOARD OF AUTHORITY This Memorandum of Understanding is made effective as of the _____ day of ____________________, 2013, by and between the METRO FLOOD DIVERSION BOARD OF AUTHORITY, a joint powers entity established by the 2011 limited joint powers agreement between Clay County, Minnesota, Moorhead, Minnesota, Cass County, North Dakota, Fargo, North Dakota, Cass County Joint Water Resource District and the Buffalo-Red River Watershed District [hereinafter referred to as the “Diversion Authority”], party of the first part, and the CITY OF OXBOW, a North Dakota municipal corporation [hereinafter referred to as the “City” or the “City of Oxbow”]. RECITALS: WHEREAS, property within the City of Oxbow and other property has been identified as being impacted by the periodic staging of water upstream of the physical structure of the project known as the Fargo-Moorhead Metropolitan Area Flood Risk Management Project [hereinafter referred to as the “Metro Flood Project”] to the point where it has been determined that mitigation of the impact should be addressed; and WHEREAS, the U.S. Army Corps of Engineers [hereinafter the “Corps”], which is the federal sponsor of the Metro Flood Project, is developing an alternative proposal by which a levee [hereinafter referred to as the “O-H-B Levee”] would be constructed to protect many of the parcels located within the City of Oxbow and to provide flood protection for the community of Hickson and the Bakke Subdivision; and WHEREAS, the current preliminary routing of the proposed O-B-H Levee would require that approximately 40 homes lying within the City of Oxbow be acquired and either moved or destroyed and would require the acquisition of other unimproved lands to accommodate construction of the levee; and WHEREAS, the City of Oxbow has requested that, as part of the project, the land within the city that is being acquired and used for construction of the levee be replaced so that loss of population and tax base to the city may be minimized; and, WHEREAS, the City of Oxbow has requested that the proposed levee project include installation of public infrastructure (sanitary sewer, storm sewer, water, street and gutter and street lighting and sidewalks, as may be appropriate) to service the said replacement land (lots) with the cost of such infrastructure to be borne by the Diversion Authority (or such other source other than the City of Oxbow or its residents); and WHEREAS, construction of the proposed levee also will cross through the existing golf course of the Oxbow Golf and Country Club (a North Dakota nonprofit corporation) which 2 would require the destruction of golf holes as well as the destruction or removal of the clubhouse and related facilities and the City of Oxbow has requested that enough replacement land be acquired within the area protected by the levee to accommodate replacement golf holes and a replacement location for the clubhouse and that the Diversion Authority pay the costs for such acquisition of such land and for the design and construction of the replacement golf holes and, in addition, that the Diversion Authority cover the cost of making various modifications to the golf course made necessary by the construction of the levee project; and WHEREAS, the Corps, which is the federal sponsor of the Metro Flood Project, has indicated that, subject to the Corps’ formal approval process, it will study and approve the O-HB Levee alternative as part of the Metro Flood Project but the Corps has asked that the nonfederal sponsors to approve the O-H-B Levee alternative and the non-federal sponsors (speaking through the Diversion Authority) have, in turn, asked the Oxbow City Council to approve the same; and WHEREAS, the Diversion Authority and the City of Oxbow have agreed to a mutual understanding as to the proposed O-B-H Levee, which they wish to put into a written memorandum; NOW, THEREFORE, IT IS AGREED: 1. City of Oxbow—approval of O-H-B-Levee alternative. Subject to the terms hereof, the City Council of the City of Oxbow agrees to, and supports, the construction of a flood protection levee as is being proposed by the U.S. Army Corps of Engineers. The parties recognize that the current proposal being considered is a preliminary route and design and that the Corps, with input from non-federal sponsors and others, will approve the route and design; but the parties agree to coordinate with each other to identify a suitable route and design and, in turn, the Diversion Authority will work with the Corps regarding obtaining the Corps’ approval. The Diversion Authority intends to be responsible for the actual design and construction of the O-HB Levee. 2. DIVERSION AUTHORITY RESPONSIBILITIES. The Diversion Authority, in cooperation with the Corps agrees: 2.1. Acquisition of Property. That the land, homes, buildings and other improvements needed for the levee to be built will be identified along with any needed permanent and temporary easements for construction. The Corps, the Diversion Authority, or both, will be responsible for the acquisition of such property in accordance with applicable law. The Diversion Authority may delegate the task of acquisition to one or more of its member entities such as the County of Cass or the Cass County Joint Water Resource District. 2.2. Infrastructure for Replacement Lots. The Diversion Authority will provide funds for construction of public infrastructure for the replacement lots (based upon the approximate number of 40 lots in need of replacement). 3 2.3. Oxbow G &CC. The Diversion Authority will fund the cost of acquisition of such land as is needed for replacement golf holes and will fund the acquisition of the Oxbow Golf & Country Club clubhouse in accordance with federal provisions and fund the cost of other modifications to the golf course made necessary by the construction of the levee project. It is understood that the City of Oxbow, the Diversion Authority, or both, may need to form an agreement with the Oxbow Golf and Country Club for the acquisition of the land, buildings and improvements, land for the replacement golf holes and clubhouse; arrangements for the design and construction of the golf holes and arrangements for the design and construction of other modifications to the golf course made necessary by the construction of the levee project. 2.4 Golf Course Designer. By request of the City of Oxbow, Robert Trent Jones, Jr. may be engaged for design of the work to be done on the Oxbow Golf and Country Club. The City of Oxbow may wish to incorporate arrangements for said engagement into an agreement with the Oxbow Golf & Country Club. [The Diversion Authority, through one of their contracted engineering firms, has already engaged said Jones and his architectural firm for preliminary work.] 2.5. Sources of Funds. The Diversion Authority agrees that the non-federal share of the cost of the construction of the levee will be a Metro Flood Project cost. The Diversion Authority intends to use a combination of funding provided sales tax revenues of the city of Fargo and of the county of Cass and by appropriated funds of the state of North Dakota to finance the obligations described in this memorandum of understanding. 2.6 Special Assessments. The Diversion Authority intends for a special improvement district to be established with the boundaries of the district to include all lands benefitted by the Metro Flood Project—said district to be established for purposes of selling bonds to finance