Board of City Commissioners - March 8, 2022 Minutes

The Regular Meeting of the Board of City Commissioners of the City of Fargo, North Dakota, was held in the City Commission Chambers at City Hall at 5:00 o'clock p.m., Monday, March 8, 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 Seed Library has returned to the Library for Spring 2021 with a variety of vegetable, herb and flower seeds available to the public at no charge; the Library has added a free “Books by Mail” service to its Outreach Services; and the “Accomplishing Big Things” video was shown detailing the third theme of the 2021 State of the City video.

Order of Agenda Approved:
Commissioner Piepkorn moved the Order of the Agenda be approved.

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

Minutes Approved:
Commissioner Preston moved that the Minutes of the Regular Meeting of the Board held on February 22, 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. 1st reading of an Ordinance Amending Sections 23-0211 and 23-0215 of Article 23-02 of Chapter 23 of the Fargo Municipal Code Relating to the Electrical Code.
2. 2nd reading and final adoption of an Ordinance Rezoning a Certain Parcel of Land Lying in South Ridge First Addition to the City of Fargo, Cass County, North Dakota.
3. Applications for Games of Chance:
a. NDSU Women in Business for a raffle on 4/5/21.
b. Michelle Erfle-Johnson Benefit for a raffle and raffle board on 3/27/21; Public Spirited Resolution.
4. Wireless Telecommunication Facilities on NDDOT Right-of-Way within LPA Jurisdiction agreement with the NDDOT.
5. Memorandum of Understanding regarding 45th Street South from 64th Avenue South to 76th Avenue South and 76th Avenue South from 45th Street South to 57th Street South with Cass County.
6. Purchase Agreement with Joshua Brekke in the amount of $730,000.00 for property located at 3680 River Drive South (Project No. MS-15-K0).
7. Bid award to Northwest Asphalt and Maintenance in the amount of $62,840.00 for Project No. PR-21-A1 and to Asphalt Preservation Company, Inc. in the amount of $782,862.97 for Project No. PR-21-B1.
8. Bid advertisement for Project Nos. FM-19-A, SL-21-A, TM-21-A and TR-21-A.
9. Change Order No. 2 for an increase of $907.50 for Project No. FM-16-A1.
10. Bid award to Hope Electric, Inc. in the amount of $28,791.50 for the Library’s lighting upgrades (RFP20064).
11. State Water Commission request for cost reimbursement for the FM Metro Area Flood Risk Management Project for costs totaling $1,087,207.37.
12. Summary Annual Financial Report for the period ending 12/31/20 (preliminary, unaudited and unadjusted).
13. Notice of Grant Award Amendment from the ND Department of Health for the Title X Family Planning Program (CFDA #93.217).
14. Notice of Grant Award Amendment from the ND Department of Health for the WIC Program (CFDA #10.557).
15. Change in ownership for the Junked Vehicle Removal Service Agreement with Ed’s Towing Service, Inc.
16. Bid award to Tyr Tactical LLC in the amount of $175,972.80 for ballistic personal protective gear (RFP21048).
18. 2020 Community Development Block Grant and HOME Partnership allocations from the US Department of Housing and Urban Development in the amounts of $789,067.00 (CDBG) and $495,115.00 (HOME).
18. Subrecipient Agreement in the amount of $54,000.00 with FirstLink.
19. Contractor Agreement with MDM Construction, LLC and Consultant Agreement with Stone Group Architects, Inc. for construction services at the temporary overflow shelter not to exceed $239,835.00 (SSP21021 and SSP21022).
20. Bid award to FOCUS by GELUS in the amount of $31,225.00 with a monthly charge of $4,589.00 for GPS automated vehicle location system (RFP20165).
21. Change Orders for Project No. WW1701:
a. No. 2 in the amount of -$40,300.00 and time extension for Phase IIA.
b. No. 1 for an increase of $40,300.00 for Phase IIB.
22. Bills in the amount of $7,721,696.78.

Second by Preston. On call of the roll Commissioners Strand, Preston, Gehrig, Piepkorn 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 for Improvement District No. NN-19-A1 Approved:
Commissioner Strand moved Change Order No. 1 for a time extension to the substantial completion date to April 1, 2021 for Improvement District No. NN-19-A1 be approved.

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

Final Balancing Change Order No. 4 for Improvement District No. BR-20-E1 Approved:
Commissioner Strand moved Final Balancing Change Order No. 4 for an increase of $57,752.74 for Improvement District No. BR-20-E1 be approved.

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

No Protests Received for Southwest Regional Pond Phase 1 Improvement District No. FP-19-A:
The Statutory Resolution of Necessity for the construction of Southwest Regional Pond Phase 1 Improvement District No. FP-19-A1 in the City of Fargo, North Dakota, was duly published in the official newspaper for the City of Fargo, North Dakota on January 20 and 27, 2021 and no protests have been filed in the office of the City Auditor within the legal protest period.
Commissioner Strand moved that the Board declare that no protests have been filed to the construction of Southwest Regional Pond Phase 1 Improvement District No. FP-19-A1.

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

Bids Received for Southwest Regional Pond Phase 1 Improvement District No. FP-19-A1:
The bids for Southwest Regional Pond Phase 1 Improvement District No. FP-19-A1 in the City of Fargo, North Dakota were opened at 11:30 o'clock a.m., March 3, 2021 and the bids were found to be as follows:

Strata Corporation Grand Forks, ND
Bid: $110,190.00 Electrical

JDP Electric, Inc. Fargo, ND
Bid: $147,627.00 Electrical

R.J. Zavoral and Sons, Inc. East Grand Forks, MN
Bid: $4,365,306.54 General
$4,511,293.54 Combined

KPH, Inc. Fargo, ND
Bid: $4,565,010.20 Combined

RL Larson Excavating, Inc. St. Cloud, MN
Bid: $4,642,846.55 Combined

Gladen Construction, Inc. Laporte, MN
Bid: $4,817,114.15 General
$4,963,101.15 Combined

Jensen Brothers Construction, Inc. Fargo, ND
Bid: $5,011,687.80 Combined

Riley Bros. Construction, Inc. Morris, MN
Bid: $5,148,361.03 General
$5,224,861.03 Combined

Park Construction Company Minneapolis, MN
Bid: $5,162,562.42 General
$5,228,562.42 Combined

Meyer Contracting, Inc. Maple Grove, MN
Bid: $5,199,829.01 General
$5,295,174.56 Combined

Key Contracting, Inc. West Fargo, ND
Bid: $5,651,720.91 General
$5,846,720.91 Combined

Sellin Brothers, Inc. Hawley, MN
Bid: $6,335,874.00 General
$6,414,874.00 Combined
The Board received a communication from Assistant City Engineer Tom Knakmuhs stating that due to the bids received, the apparent low bid is a combination of the General Construction bid submitted by R.J. Zavoral and Sons, Inc. of $4,365,306.54 and the Electrical Construction bid submitted by Strata Corporation of $110,190.00. He said the total of these two bids are $4,475,496.54 which is less than the lowest combined bid submitted of $4,511,293.54 by R.J. Zavoral and Sons, Inc. For accounting and administration of the General Construction and Electrical Construction contracts, it is necessary to assign new phase numbers to Improvement District No. FP-19-A1, he said; therefore, the General Construction contract shall be known as Improvement District No. FP-19-A2 and the Electrical Contract shall be known as Improvement District FP-19-A3.

General Construction Contract for Southwest Regional Pond Phase 1 Improvement District No. FP-19-A2 Awarded to R.J. Zavoral and Sons, Inc. in the Amount of $4,365,306.54:
Commissioner Strand offered the following Resolution and moved its adoption:
WHEREAS, The City Engineer has prepared and filed a detailed statement of the estimated costs of Southwest Regional Pond Phase 1 Improvement District
No. FP-19-A2; and
WHEREAS, The Board of City Commissioners of the City of Fargo has considered the bids received March 3, 2021 for Southwest Regional Pond Phase 1 Improvement District No. FP-19-A2 in the City of Fargo, North Dakota; and
WHEREAS, The City Engineer's tabulation of the bids received for Southwest Regional Pond Phase 1 Improvement District No. FP-19-A2 shows the General Construction bid of R.J. Zavoral and Sons, Inc. of East Grand Forks, Minnesota, in the sum of $4,365,306.54 to be the lowest and best bid received.
NOW, THEREFORE, BE IT RESOLVED, That the Board of City Commissioners finds and declares the bid received from R.J. Zavoral and Sons, Inc. in the sum of $4,365,306.54 is the lowest and best bid received.
BE IT FURTHER RESOLVED, That the contract for Southwest Regional Pond Phase 1 Improvement District No. FP-19-A2 in the City of Fargo, North Dakota, be and the same is hereby awarded to R.J. Zavoral and Sons, Inc. for the sum of $4,365,306.54, subject to the supervision, inspection and approval of the City Engineer, and in accordance with the Plans and Specifications filed in the office of the City Auditor.

Second by Preston. On the vote being taken on the question of the adoption of the Resolution Commissioners Strand, Preston, Gehrig, Piepkorn and Mahoney voted aye.
No Commissioner being absent and none voting nay, the Resolution was adopted.

Electrical Construction Contract for Southwest Regional Pond Phase 1 Improvement District No. FP-19-A3 Awarded to Strata Corporation in the Amount of $110,190.00:
Commissioner Strand offered the following Resolution and moved its adoption:
WHEREAS, The City Engineer has prepared and filed a detailed statement of the estimated costs of Southwest Regional Pond Phase 1 Improvement District No. FP-19-A3; and
WHEREAS, The Board of City Commissioners of the City of Fargo has considered the bids received March 3, 2021 for Southwest Regional Pond Phase 1 Improvement District No. FP-19-A3 in the City of Fargo, North Dakota; and
WHEREAS, The City Engineer's tabulation of the bids received for Southwest Regional Pond Phase 1 Improvement District No. FP-19-A3 shows the Electrical Construction bid of Strata Corporation of Grand Forks, North Dakota, in the sum of $110,190.00 to be the lowest and best bid received.
NOW, THEREFORE, BE IT RESOLVED, That the Board of City Commissioners finds and declares the bid received from Strata Corporation in the sum of $110,190.00 is the lowest and best bid received.
BE IT FURTHER RESOLVED, That the contract for Southwest Regional Pond Phase 1 Improvement District No. FP-19-A3 in the City of Fargo, North Dakota, be and the same is hereby awarded to Strata Corporation for the sum of $110,190.00, subject to the supervision, inspection and approval of the City Engineer, and in accordance with the Plans and Specifications filed in the office of the City Auditor.

Grading, Salvaged Base, P.C.C. Pavement, Storm Sewer, Water Main, Traffic Signal, Lighting and Shared Use Path Improvement District No. BN-20-A (University Drive from 32nd Avenue North to 40th Avenue North):
Commissioner Strand moved the following action be taken in connection with Grading, Salvaged Base, P.C.C. Pavement, Storm Sewer, Water Main, Traffic Signal, Lighting and Shared Use Path Improvement District No. BN-20-A:

Adopt Resolution Creating Improvement District No. BN-20-A:
WHEREAS, The Board of City Commissioners of the City of Fargo, North Dakota, deems it expedient that Improvement District No. BN-20-A in the City of Fargo, North Dakota, be created

On University Drive from 32nd Avenue North to 40th Avenue North.

COMPRISING:
All of the platted and unplatted land in Section 24, T140N, R49W, less the west 850’; in the South Half of Section 13, T140N, R49W south of 40th Avenue North and less the west 850’; and in Section 19, T140N, R48W west of the Red River of the North.

All of the foregoing is located in the City of Fargo, Cass County, North Dakota.

NOW, THEREFORE, BE IT RESOLVED, That Grading, Salvaged Base, P.C.C. Pavement, Storm Sewer, Water Main, Traffic Signal, Lighting and Shared Use Path Improvement District No. BN-20-A 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. BN-20-A:
Direct City Engineer to report as to the general nature, purpose and feasibility relative to the construction of Improvement District No. BN-20-A 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 $8,197,149.54.)

Order Plans and Specifications for Improvement District No. BN-20-A:
Direct City Engineer to prepare Plans and Specifications for the construction of Improvement District No. BN-20-A in the City of Fargo, North Dakota.

Adopt Resolution Approving Plans and Specifications and Engineer's Report for Improvement District No. BN-20-A:
WHEREAS, The Board of City Commissioners of the City of Fargo, North Dakota, has created Improvement District No. BN-20-A 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. BN-20-A 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 Grading, Salvaged Base, P.C.C. Pavement, Storm Sewer, Water Main, Traffic Signal, Lighting and Shared Use Path 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 Grading, Salvaged Base, P.C.C. Pavement, Storm Sewer, Water Main, Traffic, Signal, Lighting and Shared Use Path Improvement District No. BN-20-A 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 Grading, Salvaged Base, P.C.C. Pavement, Storm Sewer, Water Main, Traffic Signal, Lighting and Shared Use Path Improvement District No. BN-20-A is to be paid from State and Local Funds, and approximately 45% 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 Grading, Salvaged Base, P.C.C. Pavement, Storm Sewer, Water Main, Traffic Signal, Lighting and Shared Use Path 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. BN-20-A:
Direct City Auditor's Office to publish a Notice, as required by law, calling for bids for the construction of Improvement District No. BN-20-A in the City of Fargo, North Dakota.

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

Resident Comments:
Alexander Simon and Brad Shaffer spoke about mask mandates; Faith Dixon spoke about alcoholic beverage Ordinances, underage drinking and alcohol abuse.

Parcels of Land in ADOC Addition Rezoned (2900 12th Avenue North):
At a Hearing held on November 3, 2020 the Fargo Planning Commission recommended approval of a change in zoning from GI, General Industrial to GC, General Commercial.
The City Auditor's Office published a Notice of Hearing stating this is the time and date set for said Hearing at which time all interested persons could appear and would be heard.

Long Range Planning Coordinator Aaron Nelson said the applicant has requested to rezone the property to accommodate commercial redevelopment. He said Lot 1 is proposed to be redeveloped for a vehicle repair business, the existing grain bins are to be removed and the existing building on the west end of the lot would be repurposed. There are no immediate plans to redevelop Lot 2, he said, which will continue to function as is until the property can be sold for redevelopment.

Commissioner Preston offered the following Resolution and moved its adoption:
WHEREAS, All legal requirements in connection with the above-described request for rezoning have been complied with; and
WHEREAS, There have been no written or verbal protests to the request for rezoning and no one is present to protest thereto.
NOW, THEREFORE, BE IT RESOLVED, That the findings of staff be accepted and the rezoning be approved on the basis that the proposal satisfactorily complies with the Comprehensive Plan, Standards of Section 20-0906.F (1-4) and all other applicable requirements of the LDC.

Second by Piepkorn. On the vote being taken on the question of the adoption of the Resolution Commissioners Preston, Piepkorn, Gehrig, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the Resolution was adopted.

First Reading of an Ordinance Rezoning Certain Parcels of Land Lying in the Proposed ADOC Addition to the City of Fargo, Cass County, North Dakota:
Commissioner Preston moved the requirement relating to receipt of the Ordinance by the Commission one week prior to first reading be waived and that the Ordinance Rezoning Certain Parcels of Land Lying in the Proposed ADOC Addition to the City of Fargo, Cass County, North Dakota be placed on first reading.

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

Resolution Adopted Approving ADOC Addition:
Commissioner Preston offered the following Resolution and moved its adoption:
BE IT RESOLVED BY THE BOARD OF CITY COMMISSIONERS OF THE CITY OF FARGO:
WHEREAS, A Plat has been filed in the office of the City Auditor entitled “ADOC Addition” containing 2 Lots, 1 Block and 3.3 acres of land more or less, located at 2900 12th Avenue North; and
WHEREAS, A Hearing was held November 3, 2020 by the Fargo Planning Commission, and notice of such Hearing had been published, as required by law, and said Plat had been approved by the Fargo Planning Commission and by the City Engineer; and
WHEREAS, The City Auditor's Office published a Notice of Hearing on said Plat in the official newspaper for the City of Fargo on February 24 and March 3, 2021 that a Hearing would be held in the Commission Chambers, City Hall, Fargo, North Dakota at 5:15 p.m., March 8, 2021 at which time said Plat would be considered and all interested persons would be heard.
NOW, THEREFORE, BE IT RESOLVED, That the findings and recommendations of staff and the Planning Commission be accepted and the Plat entitled “ADOC Addition” be and the same is hereby in all things affirmed and approved on the basis that it complies with the Standards of Article 20-06, and all other applicable requirements of the Land Development Code, and that the Mayor of the City of Fargo and the appropriate City Officials are hereby directed to endorse their approval on the Plat and then direct Petitioner to file same for record in the Office of the Recorder of Cass County, North Dakota.

Parcels of Land in Eagle Valley Fourth Addition Rezoned (7300 23rd Street South):
At a Hearing held on December 1, 2020 the Fargo Planning Commission recommended approval of a change in zoning from P/I, Public and Institutional to SR-4, Single-Dwelling Residential.
The City Auditor's Office published a Notice of Hearing stating this is the time and date set for said Hearing at which time all interested persons could appear and would be heard.
Long Range Planning Coordinator Aaron Nelson said this item was originally presented at the November 3, 2020 Planning Commission and was continued to provide opportunity for additional conversations between the applicant, staff and area residents. He said numerous emails were received from residents of the Davies High School neighborhood in opposition to this requested zone change listing concerns over the loss of green space, increased traffic, potential drainage issues and a feeling of being misled in regards to the long-term use of the property. Based on comments at the November 3rd Planning Commission meeting, he said, the applicant updated the original subdivision design and zoning change request to eliminate the MR-1 zoning district and to plat only single-dwelling lots. A virtual open house was held to give neighborhood members an opportunity to review and discuss the modified proposal, he stated, and six neighborhood residents attended the meeting.

Matthew Kosak, a resident of the Eagle Valley neighborhood, said many of the residents of Eagle Valley did research before making the biggest purchase of their lives and the Park District-owned land residents thought would be there when they purchased their homes is not there. He said the fact the Park District does not own the land anymore was disclosed at the December 2020 Planning Commission Meeting and the Eagle Ridge developers do not want to build something zoned for public interest due to the fact that is not in Eagle Ridge’s best interest. The lot is listed on the City’s website as a park, he said, and he understood the plan was for a hockey arena; however, anything the community could use would be better than homes. He said maps on the City website show the lot as a park and a green area. He said Eagle Ridge residents are not the first group this has happened to and will likely not be the last.

Dave Leker, Fargo Park District Executive Director, said the original plan when the Park District purchased the property was a possible two-sheet ice facility. In working with the developer, he said, the Park District purchased the land and if the Park District did not construct an ice facility, the developer could buy back the land at the original price. He said over the years, the Park District talked about a two-sheet ice facility or a possible swap with the Fargo School District, which has about eight acres north of the Park District’s softball diamonds at Davies High School. He said potentially if the School District wanted to build an elementary school near Davies, the Park District could swap that eight acres for the School District’s eight acres and build the ice facility east of the football field at Davies. He said those were the original intentions when the Park District purchased the land. With the new developments of the Park District working on an indoor sports complex and relocating the ice sheets, he said, there was no need for this property and it was sold back to the developer. He said there is a four- to five-acre neighborhood park planned with the developer and constructed before the homes were built and there is an additional six acres to the south of that park, which has a retention pond with additional acreage around it. He said there is about a 10-acre park in that area, which is more than enough to satisfy a typical neighborhood park. He said at no time did the Park District ever plan to expand that neighborhood park to the north; it was only going to be, if anything, a school or a two-sheet ice facility. Regarding the City GIS system, he said, it might say Fargo Park District owned and he is not sure how it was designated as a park or if that was something Google Maps designated.

Commissioner Preston said it seems as if the developer has done their work in trying to meet the concerns of the neighborhood and she will support this rezoning.
Commissioner Preston offered the following Resolution and moved its adoption:
WHEREAS, All legal requirements in connection with the above-described request for rezoning have been complied with; and
NOW, THEREFORE, BE IT RESOLVED, That the findings of staff be accepted and the rezoning be approved on the basis that the proposal satisfactorily complies with the Comprehensive Plan, Standards of Section 20-0906.F (1-4) and all other applicable requirements of the LDC.

First Reading of an Ordinance Rezoning Certain Parcels of Land Lying in the Proposed Eagle Valley Fourth Addition to the City of Fargo, Cass County, North Dakota:
Commissioner Preston moved the requirement relating to receipt of the Ordinance by the Commission one week prior to first reading be waived and that the Ordinance Rezoning Certain Parcels of Land Lying in the Proposed Eagle Valley Fourth Addition to the City of Fargo, Cass County, North Dakota be placed on first reading.

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

Resolution Adopted Approving Eagle Valley Fourth Addition:
Commissioner Preston offered the following Resolution and moved its adoption:
BE IT RESOLVED BY THE BOARD OF CITY COMMISSIONERS OF THE CITY OF FARGO:
WHEREAS, A Plat has been filed in the office of the City Auditor entitled “Eagle Valley Fourth Addition” containing 40 Lots, 3 Blocks and 7.97 acres of land more or less, located at 7300 23rd Street South; and
WHEREAS, A Hearing was held December 1, 2020 by the Fargo Planning Commission, and notice of such Hearing had been published, as required by law, and said Plat had been approved by the Fargo Planning Commission and by the City Engineer; and
WHEREAS, The City Auditor's Office published a Notice of Hearing on said Plat in the official newspaper for the City of Fargo on February 24 and March 3, 2021 that a Hearing would be held in the Commission Chambers, City Hall, Fargo, North Dakota at 5:15 p.m., March 8, 2021 at which time said Plat would be considered and all interested persons would be heard.
NOW, THEREFORE, BE IT RESOLVED, That the findings and recommendations of staff and the Planning Commission be accepted and the Plat entitled “Eagle Valley Fourth Addition” be and the same is hereby in all things affirmed and approved on the basis that it complies with the Standards of Article 20-06, and all other applicable requirements of the Land Development Code, and that the Mayor of the City of Fargo and the appropriate City Officials are hereby directed to endorse their approval on the Plat and then direct Petitioner to file same for record in the Office of the Recorder of Cass County, North Dakota.

COVID-19 Update:
Fargo Cass Public Health Director Desi Fleming said the 14-day average positivity rate is about 2.09 percent in Cass County and 2.08 percent in North Dakota and there have been six cases of the UK variant strain found in the State. She said as of today in Cass County, there are 123 active positive cases and more than 55,000 vaccines given, representing a 20.3 percent first dose coverage rate. Overall, FCPH has given more than 16,000 vaccines of that total and are working towards finishing up the 1B group. Since the peak in November, testing numbers have decreased by 47 percent in Cass County, she said, and the State is moving quickly through the vaccine groups, she said. She said the 1C group should be starting soon, which covers all essential workers, and she encourages people to sign up for vaccines through various sites. Testing continues to be available for long-term care, close contacts and travelers, she said, along with diagnostic testing of the health systems. She said rapid tests are also available to the general public Monday through Friday at FCPH’s static testing location; however, that location has sold and FCPH will be changing the location and information on a new location should be announced soon.

In response to a question from Commissioner Gehrig asking when the mask mandate is going to end, Mayor Mahoney said there are three criteria to determine the end of the mandate: a positivity rate of less than 3 percent, which it is, the number of variants found in the County and the number of vaccines given. He said now that the State is starting the 1C group, which will include essential workers, who are at a higher risk, depending on all of those numbers he thinks the intent would be to end the mandate on March 22nd.

Presentation of the Police Department’s Vision Mission Values Video:
Fargo Police Department Chief David Zibolski said the Police Department is establishing its vision, mission and core values, which sets the bar for the future of the Department. A video was shown highlighting those standards and what each letter in “Fargo PD” represents: F (Fair), A (Accountability), R (Respect), G (Guardianship), O (Officer Wellness), P (Professional) and D (Diverse).

Bid Award for the Base Bid of Project No. WA1910 Awarded to Phoenix Fabricators:
The Board received a Report of Action from the Finance Committee recommending the contract for Downtown Water Tower Construction (Project No. WA1910) be awarded to Phoenix Fabricators in the amount of $7,635,949.00.

Water Utility Director Troy Hall said the Downtown Water Tower Construction Project was rebid after bids from the prior bid advertisement were rejected and a value engineering effort was done to reduce costs. He said the rebid effort produced three new bids and reduced the base bid construction costs by about $992,000.00 compared to the previous bid. Overall, he said, there was an 11.5 percent reduction compared to earlier bids. He said the funding plan for the Water Tower Construction Project includes $4,826,949.00 from the Water Utility Infrastructure Sales Tax and $2,810,000.00 from a State Water Commission (SWC) Grant, which was a bonus that came late in project planning. He said since the Water Tower Construction Project is critical water infrastructure, the Water Utility financial model was programmed to pay full construction costs for the new tower prior to the notice of the SWC grant award.
Commissioner Gehrig moved the base bid for the Downtown Water Tower Project No. WA1910 be awarded to Phoenix Fabricators in the amount of $7,635,949.00.

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

Bid Award for Bid Alternate 1 for Project No. WA1910 Awarded to Phoenix Fabricators:
The Board received a communication from the Finance Committee recommending the contract for Bid Alternate 1 for the placement of public art on the Downtown Water Tower Project be awarded to Phoenix Fabricators in the amount of $186,981.00.

Urban Development Planning Coordinator Maegin Elshaug said the Utility Committee authorized staff to work with the City’s Arts and Culture Commission to seek public artists to engage in community outreach for the creation of a mural to be incorporated into the bid of the Water Tower Project. She said a final design for the mural was selected by the Arts and Culture Commission and affirmed by the Mayor. The City Commission rejected all first round bids for the Project due to costs exceeding the engineer’s estimate, she said; however, the City Commission authorized value engineering and rebidding of the Project and to include the recommended art as Bid Alternate 1 in the new water tower bid package. When the bids were opened for the rebid of the Project, she said, the lowest combined bid was from Phoenix Fabricators.

In response to a question from Commissioner Gehrig asking how long the paint will last, Mr. Hall said it is a 25-year paint.
Commissioner Preston moved the bid for the Downtown Water Tower Bid Alternate 1 for Project No. WA1910 be awarded to Phoenix Fabricators in the amount of $186,981,00.

Second by Strand. On call of the roll Commissioners Preston, Strand, Piepkorn and Mahoney voted aye.
Commissioner Gehrig voted nay.
The motion was declared carried.

Extension of the Class “A” Alcoholic Beverage License for Irish Hospitality, LLC d/b/a Hennessey’s Irish Pub to September 21, 2021 Approved:
City Auditor Steve Sprague said he received a request to grant an extension of the requirements of Ordinance 25-1512 from Irish Hospitality, LLC d/b/a Hennessey’s Irish Pub until June 30, 2022. Hennessey’s Irish Pub closed in January 2019, he said, and since that time has continuously filed to renew its license. The intention has always been to relocate to a new concept, he said; however, a good fit for development has been difficult to find compounded with COVID-19 and the opportunity to move forward with a business concept may continue to take time to come to fruition.

In response to a question from Mayor Mahoney, asking if there are rules regarding when a bar shuts down and how long it gets to keep the license, City Attorney Erik Johnson said there is an opportunity to make a request for an extension of up to six months; however, in this situation there were some other circumstances.

Commissioner Piepkorn said the Liquor Control Board (LCB) extended this license; however, he thinks time is up.

Commissioner Gehrig said this past year has been a strange time, especially with COVID-19. The reason the City does not ask for the license back, he said, is due to the fact that the owner would have to purchase it again and it costs $115,000.00. He said the owner has already made a dramatic investment and if the City takes it away, the owner has lost that investment and may not get it back. He said the LCB voted unanimously to extend it.

In response to a question from Mayor Mahoney asking why the LCB did not extend the license for just six months, which is a more common practice, Mr. Sprague said he has had conversations with the applicant, who is open to a six-month extension. The owner initially asked for an extension to June 2022, he said, so they will have a business open instead of just a business plan.

Commissioner Preston said she is confused that the talk is about extensions when in fact it was an application for renewal in June 2020. She asked if that was made clear to the LCB and in her mind, it goes back to full disclosure from the license holder.

Mark Hanson, Nilles Law Firm, said he represents the applicant, Irish Hospitality doing business as Hennessey's Irish Pub. He said the timing of the request until June 2022 falls on him and he apologizes if the date caused angst or consternation, which was not the intent. He said he had viewed this license as being renewed through June 2021 and the Ordinance does not state “come back every six months,” although anecdotally, that is what has been done when people come in and ask for an extension. He said there are obviously some unique circumstances that have happened in the last two years with regard to what one can do with a license. He said it would be fair to say 2020 was a difficult year for anyone who was looking to take a license and open up a new bar. He said he is seeking some guidance due to the fact that members of the City Commission and LCB change and what those bodies look for individually changes over time. He said the intent of asking for an extension to June 2022 was more a matter of the applicant does not want to have to come back to the City Commission and say “we are not there yet; however, here is where we are;” however, if six months is what the City Commission wants, his client is more than willing to do that. This license has limited transferability, he said, which means the license cannot be sold on the open market; it can only be sold as part of a business. He said Commissioner Gehrig pointed out what the result would be if it is not transferred to a new home. He said the license goes back to the City and one of the questions was are there other people looking for this license. He said he would suspect last year probably not due to the fact that why would someone buy a license for $115,000.00 and not be able to open up a bar with COVID-19 and all of the operating and capacity restrictions. If someone did get the license, he said, they would also have to come back to the City and say they cannot open the bar, yet here is what they are doing, here is where it is at, which would be the exact situation his client is in. He asked if the license could be extended to September 20, 2021, and at that time, he would have more information as to where his client is with regard to what is going to be done with this license. He said if the expectation is the bar is open and using this license by September, that expectation will not be met. If the expectation is where it is at with the developer, here is where the development is and show in good faith this is being worked on, he said, that is a good answer to his client’s concerns.

Commissioner Preston said there is still a base concern about the fact that when the licensed establishment closed, there was no formal notification to the City the license was no longer operating and when she looks back at the application, the address for Hennessey’s was being used when in fact Hennessey’s was closed.

Mr. Hansen said one would use the address the license was issued under; however, he does not think under the Ordinance that necessarily means there is any statement or representations Hennessey's was not open, that was never unknown or in dispute.

Commissioner Preston said she had a business that functioned completely with a license and the first thing she did when changing anything was look back at the statute to make sure what she was planning was in line with the statute. She said if she had any questions, she called the City to figure out whether what she was doing would be okay under the license. She said it seems there is some negligence in not doing that full research and notification. The initial two times were renewals on a license that was not operating, she said, and the City can still do an extension; however, the base issue in her mind is lack of disclosure.

Mr. Hanson said he does not think this is anything different from any other license that has been in this type of a circumstance and this is not unique. These licenses, right or wrong, sit and they might not be open for a year or more, he stated, and he has clients who have bought licenses that have been on the market for more than a year; however, they are valid licenses. He said he does not think that is a problem within the liquor community. People understand that with one of these licenses, an owner cannot say in 30 days “here is what I am going to do with this license,” that is not a reality, he said. The problem in applying these Ordinances is the City tries to apply them, he said, and they do not make sense in the reality of development. Over time, the custom and practice of how these Ordinances have been applied and used have been accepted within the liquor community, he said, and owners of liquor licenses do not have a concern if there is an extension and there is an understanding that the owner is trying to use it for something. He said he does not think there is a lack of transparency; it might just be trying to adapt to what different City Commissions or LCBs might want.

Commissioner Preston said there are two different processes. The reason the six-month extension is six months is to keep an eye on whether that license is working towards an operating site, she said. A renewal is just a renewal for an operating establishment and that is much less scrutinized, although the extensions have not been scrutinized very well either, she said; however, it gives the City Commission an opportunity to scrutinize whether the license that is out there not operating is turned and brought back into an active status as quickly as possible. She said she hopes the City Commission and the LCB will tighten up this process so the extensions are following the law. She said she does not have any issues with extending this license for six months; however, certainly not for a year and a half.

Commissioner Gehrig said he thinks Commissioner Preston identified a loophole and he does not think the LCB is doing anything uncouth; the Board is playing within the rules. He said he agrees the LCB can look at improving its processes.

In response to a question from Commissioner Strand asking what is the policy, Mr. Sprague said the Ordinance does not say exactly how long the term should be; however, past practice has been about six months and owners can come back and inform the City of what progress they have made in finding a final resting place for the license.

Mayor Mahoney said the City has a long-standing practice of not rigidly adhering to the Ordinance and there is not a mechanism at City Hall to police the Ordinance on a daily basis. He said in this particular case, the applicant paid the renewal, which is not unusual; however, the rub is occurring in the practice, not so much policy. He said he does not think there is a written policy other than the Ordinance and as a practice this has just been a working relationship between the City and the licensees.

Commissioner Gehrig said this is how the LCB has operated and until now, it has not been a problem. He said the LCB did have a conversation with Commissioner Preston and the Health Department, which does compliance and underage drinking checks, and the Police have records for calls for service and the LCB discussed with all parties that the LCB will relook at the renewal process and tighten it up. He said Commissioner Strand is correct and perhaps the Ordinance needs to be rewritten so it is not two months, it is “here is what happens unless you go to the LCB and get an extension.” He said the effect on this applicant is his bar would take a $115,000.00 loss and if the applicant wants to go back into business, they would have to apply and pay another $115,000.00. That is why the applicant is asking for mercy and if the City can go another six months, the applicant will show the City they are doing something.

Commission Preston asked the LCB and staff to clear up the extension process. She asked if an establishment closes and an extension is not necessarily requested, which in her mind is what has happened here, what happens to that license, does the City buy it back, does there need to be any kind of financial transaction and all of that needs to be clarified and put into an Ordinance.
Commissioner Piepkorn moved to extend the Class “A” Alcoholic Beverage License for Irish Hospitality, LLC d/b/a Hennessey’s Irish Pub to September 20, 2021.

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

At 6:16 p.m. the Board took a five-minute recess.
After recess: All Commissioners present. Mayor Mahoney presiding.

Receive and File an Ordinance Amending Section 25-1512 Through 25-1515 and Enacting Sections 25-1513 Through 25-1517 of Article 25-15 of Chapter 25 of the Fargo Municipal Code Relating to Restrictions on Sale, Service or Dispensing of Alcoholic Beverages:
Commissioner Piepkorn said he is asking the City Commission to consider a number of changes to Article 25-15 of Chapter 25 the Fargo Municipal Code relating to liquor in the City of Fargo. District Court recently issued an opinion sending back to the City Commission the findings in the Southtown Pourhouse liquor sales violation, he said, and this order presents an opportunity to provide some clarity with respect to the formation and role of the Liquor Control Board (LCB). He said he has been working with the City Attorney’s Office on a revised Ordinance that will clarify the process regarding license violations and the license holder’s entitlement to a Hearing before the City Commission. The structure of the revised Ordinance is if there are facts presented pertaining to a potential license violation that could result in a sanction or penalty, he said, the matter would be heard by the LCB. The licensee may request a Hearing before the City Commission following the LCB recommendation, he said; however, the finding of the violation by LCB would be presented to the City Commission. He said if no hearing is requested, this could be a Consent Agenda item. The LCB is advisory only, he said; the City Commission will make the final determination on all matters pertaining to the liquor license sanction, if so requested by the license holder. He said the proposed Ordinance establishes an advisory LCB made up of one Commissioner, who shall be the Chairman, and four public members. The terms of the public board members are staggered – two board members will be appointed to serve until 7/1/23, and two board members until 7/1/25, he said and would serve three-year terms at the pleasure of the City Commission. The Board will be tasked with hearing all things liquor, he said, including license applications, requests for new and/or modified licenses and violations. The LCB is clearly stated as a recommending body only and the final decision will be presented to the City Commission, he said. There is work to be done in the area of liquor licensing, he said, and recent events and the opinion of the District Court brought to light some of the areas of the existing Ordinance that can be easily and immediately addressed towards the common goals. He said the makeup of the LCB now is the Police Chief, City Auditor Steve Sprague and City employees. He said what also brought this about is the new Police Chief said he was not comfortable remaining on the Board; therefore, now is a good time to look at the makeup.

City Attorney Erik Johnson said a decision that recently came down from District Court was a technical matter. He said the City has had a long-standing practice where if there is a disciplinary process it starts at the LCB, which works like the Planning Commission and makes recommendations to the City Commission. He said the claim was North Star Hospitality vs. the City of Fargo and in that case, the LCB made a recommendation to the City Commission and had a Public Hearing; however, the court looked at the record and felt it could be easily cured by this Ordinance change. The City Commission hearing was recognized as an appeal and not as a full evidentiary Hearing and remanded it back so the City Commission could have a Public Hearing, which will come in due course, he said. For purposes of addressing that type of technical decision of the Court, he said, this Ordinance would formalize the role of the LCB when it comes to those kinds of things, sets it up as the opportunity for a Hearing, authorizes an appeal for another Hearing in front of the City Commission and makes it clear so the City addresses any problems or any confusion in that regard.

Commissioner Preston said she is glad to see this due to the fact that the LCB has existed for many years with no definition. She said an Ordinance will offer a description of its role, its accountabilities and its makeup and is a good step to beginning to make it clear within the City in regards to the structure and the process to license holders.

Commissioner Gehrig said there is a lot in the Ordinance he likes and he agrees City employees should be the subject matter experts, he said; however, it says in the Ordinance that only one Commissioner can be on the LCB, which means he just got fired. When he looks at other parts of the Ordinance, it says someone has to go to the LCB before it gets to the City Commission; however, what if something happens and it is decided to have a Hearing at the City Commission level, does the City Commission have to wait a month for the LCB to meet? He said he does not understand why the City Commission is trying to be overly restrictive in the Ordinance. He said the City can have a framework; however, there are terms such as “should” go to LCB first instead of “shall” go to LCB first. He said those are legal terms and they matter and the City Commission needs to talk about this more before changing Ordinances.

In response to a question from Mayor Mahoney asking if there is a problem with a bar in town, would it have to go to the LCB before it came back to the City Commission, Mr. Johnson said this proposed Ordinance is a draft and does indicate the first stop is at the LCB. He said what Commissioner Gehrig is saying could there be some latitude that might not be the normal process; however, it at least authorizes the City Commission to sidetrack the LCB if the City Commission wanted to do so and that is certainly a decision the City Commission can make.

Commissioner Preston said there is no reason the LCB could not call a special meeting if there was a timing issue and she does not see that there would be any need for skipping that process.

Commissioner Piepkorn said one of the reasons was the judge recommended this so there is a process if a liquor license holder wants to appeal, they start at the LCB, then go to the City Commission and the judge was very specific about that.

Mr. Johnson said the idea is to have a process identified and to recognize the actual decision is by the City Commission and that the City Commission has a Hearing and that is what will satisfy the judge's decision. He said with the Planning process, there have been occasions where the City Commission decides to move something forward without Planning Commission analysis first; however, that would have been a rare exception and would be at odds with the normal process. That might be the case here as well, he said, even if it does say the first stop is the LCB if the City Commission wanted to take it on. He said it might not be the end of the world if the City sets up these kinds of things to develop a practice of exactly how something needs to work. He said this is receive and file so if someone wants changes between now and two weeks from now, that can certainly be introduced as an amendment.

Commissioner Gehrig said for some reason the City Commission is being overly restrictive and why does the Ordinance say “one Commissioner.” Could it say “at least one Commissioner” as long as it is not three Commissioners? He said he sees this as a backdoor way to get him off the LCB. What he sees is setting up the LCB and formalizing it, it is a policy about the structure, not a case coming through to be approved or denied.

Commissioner Piepkorn said it is not a secret the City’s liquor policies need to be addressed, updated and contemporized. He said he wants to sure there is time to do the homework and to learn what other cities do, what are some benchmarks, what policies could the City learn from or mirror or what pitfalls to avoid.

Commissioner Strand said it is long overdue and the City Commission needs to do its due diligence and get it right.

Commissioner Piepkorn said the City has to reform the LCB and this is the first step. He said City staff and the Police cannot be making laws and the way it has been in the past is not the way it can be now, it has to change and the City Commission is not going to speed through this. He said he wants to see it done methodically, not just throw it all out and then throw something back in.
Commissioner Piepkorn moved to receive and file an Ordinance Amending Section 25-1512 through 25-1515, Enacting Sections 25-1513 through 25-1517 of Article 25-15 of Chapter 25 of the Fargo Municipal Code Relating to Restrictions on Sale, Service or Dispensing of Alcoholic Beverages and that the Ordinance be placed on first reading at the next Regular Meeting of the Board.

Second by Preston. On call of the roll Commissioners Piepkorn, Preston, Strand and Mahoney voted aye.
Commissioner Gehrig voted nay.
The motion was declared carried.

Applications for Property Tax Exemptions for Improvements Made to Buildings Approved:
a. Jonathan and Jennifer Hoffman, 2941 2nd Street North (5 year).
b. Andrew and Megan Green, 1305 Broadway North (5 year).
c. Ryan and Kjersten Nagle, 409 8th Avenue South (5 year).
Commissioner Piepkorn moved the applications be approved.

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

Board of Equalization to Meet at 7:30 a.m. on Tuesday April 13, 2021:
Commissioner Gehrig moved the Board of Equalization meet at 7:30 o’clock a.m. on Tuesday, April 13, 2021.

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

Commissioner Gehrig moved that the Board adjourn to 5:00 o’clock p.m., Monday, March 22, 2021.

Second by Strand. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 6:40 o’clock p.m.