Fargo City Commission - July 25, 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 4:00 o'clock p.m., Monday, July 25, 2022.
The Commissioners present or absent were as shown following:
Present: Kolpack, Piepkorn, Preston, Strand, Mahoney.
Absent: None.
Mayor Mahoney presiding.

Mayor Mahoney announced the City of Fargo Board of City Commissioners will retire into Executive Session for the purpose of attorney consultation to discuss ongoing negotiations regarding the Roers-Newman Block Property - Tax Increment Financing District No. 2019-02. The Executive Session will allow discussion of negotiating strategy and to provide negotiating instructions to the City Attorney or other negotiator with respect to the Developer Agreement at issue. Any negotiation between the City and the Developer has financial implications and to discuss this matter in an open meeting will have a negative fiscal effect on the bargaining and/or potential litigation position of the City. Thus, an Executive Session for this announced that there is a pending litigation matter to be discussed in Executive Session, pursuant to N.D. Century Code Section 44-04-19.1 subsections 2 and 9.
Commissioner Piepkorn moved the Commissioners meet in Executive Session in the Red River Room as authorized by NDCC Section 44-04-19.1 subsections 2 and 9 to discuss said matter.

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

At 4:02 o’clock p.m. the Board moved to the Red River Room to discuss said matter in Executive Session.
Members present were: Kolpack, Piepkorn, Preston, Strand, Mahoney.

The Executive Session closed at 5:00 o’clock p.m. and the meeting reconvened in public session at 5:05 o’clock p.m.
All Commissioners present. Mayor Mahoney presiding.

The Mayor read a message with the following information: World Breastfeeding Week is August 1st through the 7th and Fargo Cass Public Health provides resources for individuals and businesses to support breastfeeding; at the Library, teens can make tie dye T-shirts Tuesday and Wednesday and the annual Summer Reading Challenge continues through August 20th; and a video was shown of the joint Fargo/West Fargo Fire Academy graduation.

Order of Agenda Approved:
Commissioner Piepkorn moved the Order of the Agenda be approved, moving Item No. “19” from the Consent Agenda to the Regular Agenda.

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

Minutes Approved:
Commissioner Kolpack moved that the Minutes of the Special Meeting of the Board held on June 28, 2022 and the Regular Meeting of the Board held on July 11, 2022 be approved as read.

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

Consent Agenda Approved:
Commissioner Kolpack moved the Consent Agenda be approved as follows:

1. Letter of Undertaking with Great Plains Block 3 Holdings, LLC.
2. Applications for Games of Chance:
a. Hope Blooms for a raffle board on 8/11/22.
b. Fargo North High School for a calendar raffle from 11/24/22 through 2/28/23.
c. Fargo North High School for a calendar raffle from 8/1/22 through 6/1/23.
d. Legacy Children’s Foundation for a raffle on 8/15/22.
e. Fargo Davies High School for a calendar raffle from 8/16/22 through 5/23/23.
f. Fargo Davies High School for a calendar raffle from 11/22/22 through 2/11/23.
g. Holy Spirit Catholic Church for bingo, raffle and calendar raffle from 9/11/22 through 10/9/22.
h. Knights of Columbus 4th Degree Assembly 788 for a raffle on 2/20/23.
i. YMCA of Cass Clay Counties for a raffle board on 8/2/22.
3. Agreement for Special Improvements with LaVerne A. Montplaisir Family Trust and Montplaisir Ag and Rental LLP.
4. First Amendment to the Granicus Service Agreement with Granicus, LLC.
5. Contract and bond for Project No. FM-22-B1.
6. Creation of Project No. UR-22-C1 and include it in the 2022 Capital Improvement Plan.
7. Bid award to Key Contracting, Inc. in the amount of $293,057.00 for Project No. UR-22-B1.
8. Memorandum of Offer to Landowner for a Permanent Easement (Levee and Retaining Wall for Flood Control) and Permanent Easement (Storm Sewer) with Denise M. Thompson (Project No. FM-19-C).
9. Memorandum of Offer to Landowner for a Permanent Easement (Levee and Retaining Wall for Flood Control), Permanent Easement (Storm Sewer) and Easement (Temporary Construction Easement) with Kathleen Bocovich and William Dickson co-personal representatives of Mary Jane Dickson (Project No. FM-19-C).
10. Storm Sewer Easement Payment Form with Dalton P. and Gabriela J. Yagow.
11. Reallocation of funds in the amount of $137,500.00 for the Newman Outdoor Field repairs, pending approval by the Finance Committee.
12. Sole Source Procurement in the amount of $51,908.24 with Christianson’s Business Furniture for furniture at the Mercantile PD Substation and Interstate Parking offices, pending approval by the Finance Committee (SSP21082).
13. Receive and file General Fund-Budget to Actual through June 2022 (unaudited).
14. State Water Commission request for cost reimbursement for the Fargo-Moorhead Metropolitan Area Flood Risk Management Project in the amount of $1,224,134.73.
15. Notice of Grant Award from the ND Department of Health for Women’s Way (CFDA #93.898).
16. Notice of Grant Award from the ND Department of Commerce/DCS for the Emergency Solutions Grant (CFDA #14.231).
17. Contract with JLG Architects for the Fargo Public Library Facilities Master Planning.
18. Inter-local Agreement with Cass County and allocation of the 2022 Edward Byrne Memorial Justice Grant (JAG) Program Funding (CFDA #16.738).
19. Bid award to Northdale Oil, Inc. in the amount of $1,072,395.00 for fuel purchasing in the 1st and 2nd Quarters of 2023 (RFV23003) (moved to the Regular Agenda).
20. Public Transportation Agency Safety Plan.
21. North Dakota Department of Transportation State Aid for Public Transit Agreement.
22. Bills in the amount of $9,447,586.88.

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

Change Order Nos. 38-40 and Time Extension for Improvement District No. BN-19-A2 Approved:
Commissioner Kolpack moved Change Order Nos. 38-40 for an increase of $28,019.70 and a three calendar day time extension for Improvement District No. BN-19-A2 be approved.

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

Change Order No. 2 for Improvement District No. BN-21-A0 Approved:
Commissioner Kolpack moved Change Order No. 2 for an increase of $69,910.00 for Improvement District No. BN-21-A0 be approved.

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

Change Order No. 1 and Time Extension for Improvement District No. BN-22-A1 Approved:
Commissioner Kolpack moved Change Order No. 1 for an increase of $120,385.00 and a time extension for Milestone No. 2 adjusting the completion date to 9/28/22 for Improvement District No. BN-22-A1 be approved.

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

Change Order No. 1 and Time Extension for Improvement District No. BN-22-B1 Approved:
Commissioner Kolpack moved Change Order No. 1 for an increase of $50,197.73 and a time extension to the substantial and final completion dates to 8/8/22 and 9/8/22 for Improvement District No. BN-22-B1 be approved.

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

Change Order No. 1 and Time Extension for Improvement District No. BR-22-F1 Approved:
Commissioner Kolpack moved Change Order No. 1 for an increase of $2,665.00 and a time extension to the substantial and final completion dates to 9/28/22 and 10/26/22 for Improvement District No. BR-22-F1 be approved.

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

New Paving and Utility Construction Improvement District No. BN-22-C (Various Locations in North Fargo):
Commissioner Kolpack moved the following action be taken in connection with New Paving and Utility Construction Improvement District No. BN-22-C:

Adopt Resolution Creating Improvement District No. BN-22-C:
WHEREAS, The Board of City Commissioners of the City of Fargo, North Dakota, deems it expedient that Improvement District No. BN-22-C in the City of Fargo, North Dakota, be created

On 42nd Street North from 28th Avenue North to 32nd Avenue North.
On 43nd Street North from 28th Avenue North to 32nd Avenue North.
On 28th Avenue North between 41st Street North & 42nd Street North.
On 28th Avenue North between 43rd Street North & 45th Street North.
On 30th Avenue North between 41st Street North and 43rd Street North.
On 32nd Avenue North between 42nd Street North and 43rd Street North.
All located in Laverne’s 2nd Addition.

COMPRISING:
Lots 1-11 Inclusive, Block 1.
Lots 1-8 Inclusive, Block 2.
Lots 1-6 Inclusive, Block 3.
Lots 1-4 Inclusive, Block 4.
Lots 1-4 Inclusive, Block 5.
All in Laverne’s 2nd Addition.

Lots 1-2 & 4-13 Inclusive, Lot 3 Exclusive, Block 1.
Lots 1-7 Inclusive, Block 2.
Lots 1-5 Inclusive, Block 3.
Lots 1 and 4 Inclusive, Block 4.
All in Laverne’s Addition.

Lot 1 Inclusive, Block 1.
All in the Phoenix Addition.

Lots 1-2 Inclusive, Block 1.
Turf Tamers Addition.

Lots 1-2 Inclusive, Block 1.
NDSU West Addition.

All of the foregoing is located in the City of Fargo, Cass County, North Dakota.
NOW, THEREFORE, BE IT RESOLVED, That New Paving and Utility Construction Improvement District No. BN-22-C in the City of Fargo, North Dakota, be and the same is hereby created.

Request Report and Estimate of Cost from the City Engineer for Improvement District No. BN-22-C:
Direct City Engineer to report as to the general nature, purpose and feasibility relative to the construction of Improvement District No. BN-22-C in the City of Fargo, North Dakota; as well as an estimate of the approximate cost of said construction. (The Engineer's estimate of cost is $20,007,016.16.)

Order Plans and Specifications for Improvement District No. BN-22-C:
Direct City Engineer to prepare Plans and Specifications for the construction of Improvement District No. BN-22-C in the City of Fargo, North Dakota.

Adopt Resolution Approving Plans and Specifications and Engineer's Report for Improvement District No. BN-22-C:
WHEREAS, The Board of City Commissioners of the City of Fargo, North Dakota, has created Improvement District No. BN-22-C in the City of Fargo, North Dakota, as required by law; and
WHEREAS, Plans and Specifications and the Engineer's Report prepared by the City Engineer, have been considered.
NOW, THEREFORE, BE IT RESOLVED, That the Plans and Specifications and Engineer's Report for the construction of Improvement District No. BN-22-C in the City of Fargo, North Dakota, be and the same are hereby approved and ordered filed in the Office of the City Auditor.

Adopt Resolution Declaring New Paving and Utility Construction 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 New Paving and Utility Construction Improvement District No. BN-22-C in the City of Fargo, North Dakota, according to the Engineer’s Report for this district and the Plans and Specifications approved by the Board of City Commissioners of the City of Fargo, North Dakota, filed in the Office of the City Auditor, and open for public inspection. A map of the district is attached hereto and incorporated as if fully set forth herein.
That a portion of said New Paving and Utility Construction improvement is to be paid from State and Local Funds, and approximately 96% 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 New Paving and Utility Construction 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-22-C:
Direct City Auditor's Office to publish a Notice, as required by law, calling for bids for the construction of Improvement District No. BN-22-C in the City of Fargo, North Dakota.

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

Resident Comments:
Jed Limke spoke about increasing the size of the City Commission to seven; Heather Johnson spoke about the 10th Street Corridor Study; Whitney Oxendahl spoke about adding two Commissioners and the City adopting 360 evaluations for Department managers; Paul Gleye spoke about the 32nd Avenue South project; and Torail Boxley, Charles Taylor and Randy Williams spoke about Downtown food carts.

Parcels of Land in Urban Plains by Brandt First Addition Rezoned (2901 Uptown Way South):
At a Hearing held on July 5, 2022 the Fargo Planning Commission recommended approval of a change in zoning to repeal and re-establish a C-O, Conditional Overlay in the LC, Limited Commercial zoning district.
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.
Urban Development Coordinator Maegin Elshaug said the applicant is requesting to modify the Conditional Overlay to allow the use of limited vehicle service in order to construct a car wash on the property. She said the Land Development Code identifies a car wash as a limited vehicle use and the Conditional Overlay identifies the use as prohibited. No other changes to the conditional overlay are proposed.

In response to a question from Commissioner Preston asking about the three dissenting votes from the Planning Commission, Ms. Elshaug said some members of the Planning Commission had questions about walkability. She said there are certain design standards that include pedestrian connectivity.

In response to a question from Commissioner Strand asking about vehicle access and the fact that there is a Starbuck’s next to this lot where there is usually a line of vehicles waiting to pick up coffee, Ms. Elshaug said the stacking of that location meets the Land Development Code for stacking spaces and there was discussion on access into the site. She said there would be no access off of Veterans Boulevard.
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 and the Planning Commission be accepted and the rezoning be approved with the Conditional Overlay requirements listed in the Ordinance on the basis that it 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, Kolpack and Mahoney voted aye.
Commissioner Strand voted nay.
The Resolution was adopted.

First Reading of an Ordinance Rezoning Certain Parcels of Land Lying in Urban Plains by Brandt Fifth 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 Urban Plains by Brandt Fifth 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, Kolpack and Mahoney voted aye.
Commissioner Strand voted nay.
The motion was declared carried.

Resolution of Necessity for 131, 137 and 149 South Woodcrest Drive North Approved (Project No. FM-19-C):
City Engineer Brenda Derrig said staff has been working on developing the Woodcrest Flood Risk Management Project since 2018 when it was identified by the Metro Flood Diversion Authority and the Fargo City Commission as being necessary for the overall operation of the Fargo-Moorhead Metro Flood Risk Management Project (FM Diversion). She said this past year's work has included completing the final design of the project as well as negotiations for the easement acquisitions on private property. These easements, in addition to the previously completed seven full property acquisitions, are necessary for the construction of the levee associated with the project, she said. To date, the City has been able to acquire temporary and permanent easements on eight of the affected properties, she said; however, the City has not been able to reach an agreement with three property owners for the necessary easements. Staff presented initial offers for the easement acquisitions in November and December of 2021, she said, and since presenting these offers, the City has had continuous communications with the affected property owners with the goal of coming to an agreement on the easement valuations that are fair for both parties. At this time, she said, the negotiations have reached an impasse and the next step in the eminent domain process pursuant to ND Century Code Chapters 32-15 is to secure the Resolution of Necessity, authorizing the commencement of the action to secure the property interests needed to complete the flood protection project. She said staff intends to continue to negotiate with the remaining property owners despite moving forward with the eminent domain proceedings with the hope that agreements can be reached on the easement values without having to go into the court proceedings.

In response to a question from Commissioner Preston asking if the easement is for the dike or the entire property, Ms. Derrig said the easement is only for the part of the owners property where the dike will be built.

In response to a question from Commissioner Preston asking if the issue is the price for the easement or is it something broader, Ms. Derrig said some property owners are further apart in price negotiations; however, for some, it is just getting the conversation started to have active negotiations. She said the City has reached out to them, attorneys have also reached out, it has just been a struggle to keep things moving forward.

In response to a question from Commissioner Preston asking how long is the process going to take, Ms. Derrig said she anticipates six months or less. She said she hopes to resolve the matter in a timely fashion due to the fact that Engineering would like to complete the project next year.

In response to a question from Commissioner Strand asking for the definition of an easement, Ms. Derrig said an easement is the ability to put the levee on property that is still owned by the property owner. More importantly, she stated, it is the ability for the City to have flood protection. She said the City will do walk-throughs on the property to show the owner the alignment of the levee and what it will look like on their property.

In response to a question from Commissioner Strand asking for a further definition of impasse, and is it a monetary issue with all the property owners or do they not like the project, Ms. Derrig said impasse is in terms that the City has not reached any agreements with the property owners.

In response to a question from Commissioner Strand asking what is the next step if this Resolution is approved, City Attorney Nancy Morris said negotiations will continue and the next step would be eminent domain.

Commissioner Kolpack said the City has purchased many homes and negotiated many easement contracts and to have only a handful where negotiations have been a bit more difficult, she commends the Engineering Department and staff on having these one-on-one conversations with homeowners. That speaks well for the Engineering Department and the City Attorney’s work, she said.

Commissioner Piepkorn said the key thing is these three homeowners are jeopardizing all of the other homes in that part of the City. He hopes negotiations are successful and the City will soon have complete, permanent flood protection, he said.
Commissioner Piepkorn moved that the Resolution titled “City of Fargo Resolution of Necessity” and referred to as Attachment “A,” be adopted and attached hereto.

Second by Kolpack. On call of the roll Commissioners Piepkorn, Kolpack, Preston, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the Resolution was adopted.

Modifying the Process for Sanitary Sewer Repairs Qualifying for City Cost Participation Approved Effective August 1, 2022:
Division Engineer Kevin Gorder said Engineering, along with the Auditor's Office, takes phone calls from residents asking questions about City participation on sanitary sewer service repairs. He said Engineering proposes no changes to the participation policy; however, both Departments would like to add some conditions to obtaining the City match. He said some of the contractors completing the repairs do all of the paperwork on behalf of the resident and the resident is sometimes surprised by the yearly payment for the repair. Engineering has placed a list of excavators on the City website to encourage residents to call multiple contractors to get competitive quotes for the repair, he said, and asks that residents be required to contact the City prior to signing a contract so the City can answer questions and concerns related to the repair of their sanitary sewer service. The City would also verify the amount of the City match, he said, and give the resident an approximate yearly payment for the work so the resident can make an informed decision on repairing their service. He said question and answer and fact sheets would be placed on the City’s website and handed out as needed to residents. The fact sheet would explain the process and include contacts for residents to get more information, he said, and the requirement would go into effect August 1, 2022. He said some of the information on the fact sheet would include who is responsible, who residents should contact, costs and cost assistance for property owners, the process for getting quotes and emergency sewer work.

Commissioner Preston said she had talked to a resident who was approached by a contractor doing work in their neighborhood and asked if they wanted sewer work done on their home and they felt it was a bit predatory, so this is a good move.

In response to a question from Commissioner Preston asking about water pipes, Mr. Gorder said the City maintains the water service from the main to the curb stop and then it is the resident’s responsibility from there. He said the main expensive parts under the road are maintained by the City.

In response to a question from Commissioner Strand asking of the almost 340 calls for service per year, how many of them are emergency, Mr. Gorder said that is a hard number to quantify and depends on what a person feels is an emergency. He said he considers it an emergency if sewage is backing up in the house. He said he does not think it is 10 percent; however, he really does not have a good answer to the question.

In response to a question from Commissioner Strand asking if there is a way for the City or the property owner to be more proactive, to somehow be forward thinking when buying a house to check sewer lines to see if there are cracks or breaks, is there a way to modify the cost share to get people to be proactive and reduce emergency situations later, Mr. Gorder said there probably is; however, the City will have to find more money. He said sewer repairs tend to be in older neighborhoods as newer construction is all PVC, which lasts longer. He said the participation policy is the same; however, it depends on if a plumber has to come out on a Sunday, and there could be extra charges depending on the depth of the excavation.
Commissioner Preston moved to modify the process for sanitary sewer repairs qualifying for City cost participation be approved effective August 1, 2022.

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

Request for an Amendment to the Home Rule Charter to Add Two Commissioners to the Board of City Commissioners Lost for the Lack of a Majority:
Commissioner Strand said he is bringing this request forward to find out if the current Commissioners want to expand the City Commission to seven members due to a growing and more diverse City and to include the question on the upcoming November ballot. He said he would like to see the question on the ballot to find out what the people want and what type of governance is desired whether it is a commission or council. It is a complicated discussion, he said, and he does not want to presuppose where his peers on the Commission sit on the issue. He said during the last election cycle, 15 people were running for City Commission, many of which were representative of diverse groups. Another reason, he said, is City Hall was built with seven seats on the dais and there are seven offices for Commissioners. He said he had hoped to be able to have the question on the ballot in June; however, he missed that window and now it is his hope to get in on the November ballot.

City Attorney Nancy Morris said the deadline to add a ballot question is 64 days before an election, leaving just two more City Commission meetings to look at the language and get it approved. She said there would have to be an amendment to the Home Rule Charter to address when the Commissioners would be elected and what would be the terms.

Commissioner Piepkorn said some of his questions would be what will be improved by two additional Commissioners, what are the benefits, what will it cost the taxpayers with additional salaries, support staff, benefits and other costs, where will that extra money come from, would residents have to pay more taxes or would there be reductions in other departments. He said adding two Commissioners would not be free and he is looking forward to getting his questions answered.

Commissioner Preston said there needs to be a conversation in the public arena on how City government can be more effective and efficient. She said she thinks having the question on the November ballot is a much better idea due to the fact that turnout in November is better than when City elections occur. She said during the last City election, there was a 12 percent voter turnout and that is terrible. City elected officials have the most impact on individuals and their properties, she said, and all Park Board, School Board and City Board officials are elected by only 12 percent of the population.

Commissioner Piepkorn said it would have been nice for Commissioner Kolpack and himself to have four positions to run for instead of two, which would have increased their opportunities. He said it is interesting the two Commissioners making the motion and seconding it will be up for election next time.

Mayor Mahoney said he tried to put together an Election and City Governance Task Force; however, he could not find seven people to serve and he feels the public is not interested in this right now. He said Fargo has an efficient and expeditious Commission and many cities in North Dakota have reduced their council numbers, including Minot and Grand Forks. It appears the Commission is adding two for just the reason of adding two, he said, not that it will necessarily make things more efficient. He said it seems as if this is a way of searching for a fix but there is no clear picture as to what needs to be fixed. The way the Commission and administrative team works is good, he said, and he sees no reason to change it.

Commissioner Kolpack said during the campaign, she supported increasing the City Commission as Fargo grows; however, she needs to understand all of the implications of adding more commissioners. She said she read the report from the 2016 Election and Governance Task Force, which recommended two additional Commissioners; however, that recommendation was turned down by the City Commission. She said she is not sure what the problem is the City Commission is trying to solve. She has only been on the job for a month, she said, she meets every day with employees and departments and is amazed by the work being done. She sees efficiency in every department and like every business in the community, some departments are struggling to hire positions and attract and retain employees due to the fact that there is work to be done regarding employee salaries. She said she met recently with a group of incredible City employees who are part of the first responder community who have real concerns about competitive salaries to ensure the City keeps them and rewards them fairly. In addition, she said, just about every City bid opening now comes in at a higher cost, which in turn takes more tax dollars. She said a new City Administrator might have some insights or ideas on the future structure or realignment. Another issue, she said, is if this is approved tonight to ensure enough time to get it on the November ballot, that only leaves about three months to educate citizens and get engagement, which is concerning. She said she will not support this motion at this time; however, she can support adding additional Commissioners as Fargo grows with additional specific rational and parameters and after more community engagement and feedback.
Commissioner Strand moved to direct the City Attorney to draft a Resolution for an Amendment to the Home Rule Charter to add two Commissioners to the Board of City Commissioners.

Second by Preston. On call of the roll Commissioners Strand and Preston voted aye.
Commissioners Kolpack, Piepkorn and Mahoney voted nay.
The motion was declared lost for the lack of a majority.

City Administrator Selection Process Approved:
Mayor Mahoney said he is proposing the following Selection Committee for the City Administrator position: Mayor Tim Mahoney; Deputy Mayor Dave Piepkorn; Commissioner Arlette Preston; Commissioner John Strand; and Commissioner Denise Kolpack. He said Human Resources would also extend invitations to various Department heads to participate on the Selection Committee. As the liaison Commissioner for City Administration, he said, he would like to maintain the role of the hiring manager, who serves as the primary point of contact for Human Resources and the search firm in order to plan for and guide the selection process. He said it is not necessary for the full committee to convene to discuss details such as posting the position and recruiting materials. The full committee will be engaged in interviewing and the actual selection of the candidates, he said.

Human Resources Director Jill Minette said the applications and any records related to the applications, which contain information that could reasonably be used to identify an applicant, are exempt from open records. Once the finalists are designated, she said, the applications and related records of the finalists are open to the public. The public entity or other person reviewing applications on behalf of the public entity shall comply with all requirements for an Executive Session to discuss exempt applications, she said. If, by the close of the application period for a vacant position, a public entity receives applications from fewer than three applicants who meet the minimum qualifications, she stated, the applications and records related to the applications are open to the public. A public entity may adopt policies regarding the release of exempt records under this section, she said. The City is in the process of engaging an executive search firm to conduct a nationwide search for the City’s next Administrator, she said, and the search firm will collaborate with Human Resources on all aspects of the selection process.
Commissioner Strand moved the City Administrator selection process be approved, as presented.

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

Engineering Department Directed to Amend Documented CatEx and Present a Change Order for the Addition of a Right Turn Lane on 32nd Avenue and 25th Street as Part of the 32nd Avenue South Reconstruction Project:
Commissioner Kolpack said at the July 11th City Commission meeting, the Engineering Department sought the Commission’s approval of the award for the reconstruction of 32nd Avenue South. At the time of the presentation, she said, there was considerable discussion about whether a right turn lane should or should not be an amendment to the motion presented, and a motion was made to amend the motion to include the right turn lane. She said she voted to reject the amendment due to the fact that she did not have enough information as to costs or process and there were some time constraints regarding the bid award. During the presentation, she said, Assistant City Engineer Tom Knakmuhs stated the turn lane could be addressed by a Change Order after proper steps were taken, including an amendment to the Documented CatEx and the presentation of an appropriate Change Order, both of which would require further approval by the City Commission. She said she is of the opinion these additional steps should be undertaken and the matter of the right turn lane properly brought to the City Commission for consideration.

City Engineer Brenda Derrig said the bid has been approved for the project; however, the final contract is waiting for approval and it would likely be ready for the next City Commission meeting on August 8th. She said adequate information about the cost of the right turn lane would be available in roughly a month and the cost would be about $40,000.00. The removal of the right turn lane from the project was one of the ideas meant to create a more pedestrian-friendly intersection, she said. Considering traffic counts, she said, the turn lane onto 25th Street is the most appropriate in the intersection. She said if the vision is pedestrian friendly and to shorten that distance, that would be the one that could get removed.

Commissioner Strand said that requesting a change on the recently approved project bid is unsettling. He said the ink is not even dry on the contract and the City is asking for a Change Order.

In response to a question from Commissioner Preston asking what would be the timeframe for Engineering to come back with a Change Order, Ms. Derrig said the contract should be coming back at the next City Commission meeting on the Consent Agenda, and in her mind she would see this happening after the contract is signed, then at least another two weeks for the Change Order.

Commissioner Strand said his concern is that change orders are on the Consent Agenda as a routine and he would want this on the Regular Agenda for discussion.

Commissioner Kolpack said if this passes and the Change Order comes back to the City Commission, it will be on the Regular Agenda.

Ms. Derrig said to clarify, when a contractor gets a bid, the City does not RFP any Change Orders. The original contractor continues with the project and all change orders would be done through the contractor, she said.
Commissioner Kolpack moved the Engineering Department be directed to amend the Documented CatEx and present a Change Order for the addition of a right turn lane on 32nd Avenue and 25th Street as part of the 32nd Avenue South Reconstruction Project.

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

Extension to the Compliance Order Deadline for 717 3rd Avenue North Approved (Beebe House):
Trenton Gerads, Executive Director of the Cass Clay Community Land Trust (CCCLT), said on February 8, 2021 the City Commission ordered the property owner of 717 3rd Avenue North to obtain permits for repair of the dangerous building. He said if the owner failed to obtain the required permits and repair the building within the time lines for compliance, City departments would be directed to demolish the building. To date, one of the permits has been fulfilled, he said, new ownership has been secured by CCCLT and a clearly defined purpose for the property has been established. He said CCCLT is working with the Kilbourne Group for restoration and construction work and the property will be used as CCCLT’s office and a permanent community resource. The property will remain in the organizations portfolio forever, he said, no matter its charitable use. He said CCCLT is asking the City Commission to approve an extension of the Compliance Order, allowing CCCLT to apply for a commercial construction permit and restore the property for impactful, permanent community use. Upon approval of the extension, he said, CCCLT will utilize secured funding to pour a new basement in the fall of 2022. To date, he said, safety concerns have been addressed including removing boarded windows, the fallen pillar on the porch has been replaced, the foundation has been stabilized, infestation eliminated and peeling paint removed and repainted. He said the plan for the building is for Kilbourne Group to lead restoration and construction at an estimated cost of $450,000.00, which includes a new foundation, moving the structure 12 feet to the east, a 20x20 addition on the north side and refurbishing the exterior and interior while maintaining the historical integrity. The timeline for completion of the project runs through July 2023 when CCCLT will apply for a certificate of occupancy. When completed, he said, the site would also include the Rape and Abuse Crisis Center, the BSI Milton Earl, a private home, a new road, utilities and alley resurfacing.

Commissioner Piepkorn said the past owner made promises and did not deliver and that is frustrating. He said he drives by this building often and it is awful and that is why he hesitates to give an extension due to the fact that it has been this way for decades, it is nothing but weeds and it is an eyesore. The past owner did tremendous damage to this project and it is embarrassing that the past owner was an architecture professor. He said he is disillusioned due to the fact that this has been going on for a long time, it is dilapidated and he feels bad for the neighbors.

In response to a question from Mayor Mahoney asking when CCCLT took possession of the property and what will be the first improvement, Mr. Gerads said CCCLT took possession July 8th and the first project will be picking up the house and adding the foundation.

Commissioner Strand said he is excited that the home will be relevant to Downtown again and it is an amazingly good result out of a potential loss that could not be calculated. He also thanked Ron Ramsey for bequeathing this building for a good use and the Kilbourne Group for investing in the vision.
Commissioner Strand moved the compliance order deadline for 717 3rd Avenue North (Beebe House) be extended to August 31, 2023.

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

At 6:41 p.m., the Board took a 5-minute recess.
After recess: All Commissioners present. Mayor Mahoney presiding.

Revocation of the Requirement that Sidewalk Entertainers Obtain a Permit in Accordance with Fargo Municipal Code 18-0310; Revocation of Amplified Sound Permits Issued to Sidewalk Entertainers in Accordance with Fargo Municipal Code 11-0209; Authorize Refunds of Permit Fees Collected: Appropriate Staff Directed to Vet Changes to Sidewalk Entertainer, Pushcart Vendor and Noise Ordinances:
City Attorney Nancy Morris said this is in response to issues raised recently by sidewalk entertainers and pushcart vendors and she has some short- and long-term recommendations to resolve the issues. There will be public input, she said, and recommendations will come back to the Board for final approval. One of the early issues identified is an inconsistency in an interpretation of the amplified sound permit applications, she said. The Planning Department has been responsible for granting Sidewalk Entertainer Permits, she said, and in those permits, there is no mention of the use of amplified sound; however, permittees have interpreted the issuance to allow them to use amplified sound. A permit for use of amplified sound is within the province of the Police Department, she said, and thus, a Police Officer issues a ticket to a sidewalk performer for failing to secure an amplified sound permit. The sidewalk performer had a sidewalk entertainer permit issued by Planning; however, the ticket was voided and the performer was permitted for amplified sound by the Police Department until November 2022. Unfortunately, she said, that further resulted in conflict between the public, sidewalk entertainers and pushcart vendors. She said in the short term, staff is recommending revocation of the amplified sound permits issued to sidewalk entertainers. Specifically, she said, staff is recommending there be no amplified sound permits to pushcart vendors and sidewalk entertainers operating in the public right-of-way, except as applicable to special events, which otherwise require permits for safety, specific as to time, place and manner requirements. She said this is not applicable to physical brick and mortar structures adjacent to the right of way. The amplified sound permits for the sidewalk entertainers would be terminated, she said, in addition to eliminating the need for the sidewalk entertainer permit. She said pushcart vendors are not permitted to use amplified sound at any time and that no such permits have been issued; therefore, this decision would have no impact on pushcart vendors. Sidewalk entertainers who received amplified sound permits being revoked by this action could request a refund from the Police Department. She said Police have been active participants in these discussions and have indicated a willingness to take an active role in enforcement and consideration of rules that will be a benefit to all. This raises another recommendation, she said, which might appear counterintuitive as law enforcement is recommending an increase in the permitted decibel levels for non-amplified sound. Enforcement of the present 55 decibels is not feasible, she said, as normal conversations approach that level. If the decibel level is increased to 80 between 7:00 a.m. and 10:00 p.m., she said, detection and enforcement of violations would be more attainable. A violation of Fargo Municipal Code 11-0204 is a non-criminal offense resulting in a $120.00 fine, she said. The decibel limit could stay the same, or decrease slightly to 60 decibels, between 10:00 p.m. and 7:00 a.m., she said, to accommodate normal sidewalk activity. She said staff is recommending time constraints for the amplified sound permits be changed to end at 10:00 p.m. on weekend nights, consistent with weekdays. She said the hardest part is enforcement due to the fact that present Ordinances have good and important rules for sidewalk entertainers and pushcart vendors; however, enforcement tools available may need some teeth, including higher fines for violations of the existing rules, ways to hold the pushcart vendors directly responsible and revocation of the pushcart vendor permits for repeated violations. She said staff is recommending some Ordinance changes to encourage voluntary compliance, with more penalty for violations. Littering has been a primary complaint of the sidewalk entertainers and pushcart vendor activity, she said, and Fargo Municipal Code 11-0813 does not specify a particular penalty for littering on public property. However, Fargo Municipal Code 11-0814 addresses littering on private property and violations are subject to a $150.00 fine, she said. Littering and other cleanliness issues created by the pushcart vendor and sidewalk entertainer activities could carry this higher fine, she said, and as for pushcart vendors, if the littering or sound violations are directly attributable to their operations and there is a persistent failure to rectify the issues, the vendor would receive a permit violation notice. A specified number of tickets or other permit violation notices could result in revocation of the pushcart vendor permit, she stated. An immediate cessation of the permit requirements for sidewalk entertainers only until the Ordinance can be changed to strike the provision referencing the same would be appropriate, she said, and persons engaging in sidewalk entertainment on the right-of-way would be required to comply with all rules provided in Fargo Municipal Code 18-0310, to be amended to remove the permit references. Violations of the remaining rules not addressed elsewhere, she said, such as noise violations and littering, could be classified as non-criminal offenses with a fine of about $100.00. Police could be provided a placard to present to the sidewalk entertainer, she said, to advise them of the violation by way of a warning, and if the sidewalk entertainer fails to comply, such entertainer would be subject to ticketing. She said enforcement activity would be stepped up in order to ensure public safety and to minimize the conflicts presented by the sidewalk entertainer activity with other businesses, residents and the public enjoying the Downtown Fargo amenities. She said it is important to separate the pushcart vendors from the sidewalk entertainers and address the Ordinance deficiencies in terms of compliance and enforcement. Fargo Municipal Code 18-0311 requires pushcart vendors to first obtain a permit, she said, to be issued by the Planning Department. That permit requirement would remain; however, much of the regulation incorporated in the sidewalk entertainer permit provisions is lacking from the pushcart vendor process, some of which are found in Fargo Municipal Code 18-0313.3. She said staff is recommending the pushcart vendors not only continue to be required to obtain an appropriate permit, but also provide assurances of compliance with the Ordinance terms and insurance, and acknowledge the permit is non-transferable. In addition, she said, the pushcart vendor Ordinance could be further expanded to address the process to be employed in the event the permit is denied, and appropriate processes if violations of the Ordinance are found to exist such that suspension or revocation of the permit is warranted. Noncriminal violations could serve as a means of proof of the permit violations for purposes of determining suspension or revocation, she said; however, not all violations would be evidenced by Police ticketing. She said some notices may be issued by Planning, Health, Inspections or Engineering for violations such as size of cart and health and safety issues relating to food preparation. She said several complaints were received stating the hours of operation of the sidewalk entertainers and pushcart vendors are too late. Sidewalk performers are required to cease at 10:00 p.m., she said, and pushcart vendors are presently permitted to operate until 2:00 a.m. Enforcement is an issue, she said, and consideration could be given to changing the hours going forward. There has been some discussion as to whether the pushcart vendors should contribute to the Business Improvement District (BID), or perhaps a monetary deposit made to BID operations through the permitting process, given that much of the garbage created is likely deposited in trashcans emptied by BID and the sidewalks are cleaned by BID personnel.

Planning Director Nicole Crutchfield said her department is trying to get their arms around all of this as it is confusing with Ordinances and permits in terms of amplified sound. She said right now, no permits are being issued for use in public rights of way, unless it is part of an event. Other recommendations, she said, include determining contribution and participation with DCP and BID and for potential contribution by vendors. She said there is no ability now to revoke permits and the City needs to determine how to do that as well as consideration of safety and hours of operation. Immediate steps would be to affirm the recommendations tonight, she said, then have an open comment period until August 3rd, a City Commission meeting to receive and file the Ordinance on August 8th, followed by first and second readings. She said no one wants to shut down food carts; it is more about sound, food, grease and trash.
Fargo Police Department Captain Chris Helmick said they are not interested in eliminating the food carts and food trucks. He said the effort is to take three different parts of Ordinances and make them work. The top focus is on noise and Officers would likely have to step in and deal with any violations if new regulations are approved. Some of the Ordinances regarding sidewalk performers are more than 40 years old and they need to be addressed, he said, and the goal is to reduce the noise level, especially after 10 p.m. due to the fact that most complaints are about loud noise into all hours of the night. He said the previous decibel levels are too low and need to be updated. He said the Police are trying to clarify the rules for sidewalk performers, food carts and push carts and what will happen if those rules are violated. Clear enforcement options are needed, he said.

In response to a question from Commissioner Preston asking if the decibel level would be decreased after 10 p.m., Ms. Morris said there are regulations that performers must cease at 10 p.m., and the decibel level is currently 55. She said the idea is to increase the decibels to 80 until 10 p.m.; however, the regulations are not the needed enforcement tools.

In response to a question from Commissioner Preston asking if it has to be uniformed officer doing the enforcement, Captain Helmick said Community Service Officers might be available.

Commissioner Preston said it would have to be a consistent person and she is not sure the Police have enough resources.

In response to a question from Commissioner Strand asking if the food carts could be located at special locations along and near Broadway at Uber and Lyft pick-up sites, which the City Commission recently approved, in order to avoid congestion in front of bars downtown, Captain Helmick said the Police are looking into that option.

Commissioner Strand said Fargo should look at other cities’ policies regarding these issues.

Commissioner Preston said she thought it was a good idea to have food available late at night for people after drinking and she suggested allowing the food carts to operate until 3 a.m., rather than 2 a.m.

Captain Helmick said the long-term recommendations are to look into hours of operation, additional safety issues, license revocation processes and to look at a possible contribution from vendors to the Downtown Community Partnership and its Business Improvement District (BID), which works on keeping Downtown clean and inviting.
Commissioner Strand moved to immediately suspend the requirement that sidewalk entertainers obtain a permit in accordance with Fargo Municipal Code 18-0310 and authorize a refund of requested permit application fees; immediately revoke the amplified sound permits issued to sidewalk entertainers in accordance with Fargo Municipal Code 11-0209 and authorize the refund of permit fees collected if requested by permittees; and appropriate staff be directed to engage with stakeholders and the public to vet proposed changes to the Sidewalk Entertainment and Pushcart Vendor Sections of Fargo Municipal Code, Article 11-02 Noise Control and Radio Interference, and to work with the City Attorney’s Office to present amended Ordinance provisions for further consideration.

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

Application for a Property Tax Exemption for Improvements Made to a Building Approved:
Commissioner Piepkorn moved the application filed by Bunnie R. Messelt T/O/D at 3302 11th Street South for a 5-year property tax exemption for improvements made to a building be approved.

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

Liaison Commissioner Assignment Updates:
The Commissioners gave brief reports on the Boards and Committees on which they serve.

Bid Award for Fuel Purchasing in the 1st and 2nd Quarters of 2023 Approved (RFV23003) (Moved from the Consent Agenda):
Commissioner Strand said he asked that this item be moved from the Consent Agenda to the Regular Agenda due to the fact that he wanted to acknowledge the significant savings to the City by Public Works using a fuel purchasing contract.

Public Works Director Ben Dow said the Fuel Procurement Committee monitors the City’s current and projected fuel use and the fuel market to determine when conditions are favorable to lock in fuel prices for 80% of the City’s projected fuel uses. He said the Committee received bids for 240,000 gallons of #2 diesel and 110,000 gallons of unleaded gasoline, with the award made to Northdale Oil, Inc. with a low bid of $1,072,395.00. He said the City started buying bulk fuel 11 years ago and last year saved almost $1 million and this year he expects savings of about $2 million. The City is now paying about $2.72 a gallon for diesel and $2.40 for unleaded, he said, and annually, the City buys about 480,000 gallons of diesel fuel and 300,000 gallons of unleaded gas. He said Fargo has avoided the unexpected record high prices by pre-buying fuel a half-year in advance. He said the City goes on the open market and calls on vendors that buy and sell large amounts of fuel, then purchases the large blocks of fuel locked in at a discounted rate. He said it the same way many airlines buy fuel. He said Fargo guarantees 80% of its City fuel purchases with the contract and if the market drops, there is still the ability to purchase additional fuel on the open market. In the past, the City savings on fuel by using a fuel-purchasing contract have ranged from $50,000.00 to $100,000.00 annually.
Commissioner Strand moved to award the bid for fuel purchasing in the 1st and 2nd Quarters of 2023 to Northdale Oil, Inc. in the amount of $1,072,395.00.

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

Commissioner Kolpack moved that the Board adjourn to 5:00 o’clock p.m., Monday, August 8, 2022.

Second by Piepkorn. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 7:13 o’clock p.m.