Board of City Commissioners - November 14, 2022

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, November 14, 2022.
The Commissioners present or absent were as shown following:
Present: Kolpack, Piepkorn, Preston, Strand, Mahoney.
Absent: None.
Mayor Mahoney presiding.

The Mayor read a message with the following information: Job Service ND staff is offering walk-in services November 15th at the Main Library; the Library offers readers’ advisory services for kids, teens and adults; the consultants for the Downtown InFocus plan will give a presentation November 15th at noon in the Commission Chambers; the apartment vacancy rate in Fargo declined to 3.1 percent as of June 1st; the light panels inside the Commission Chambers and the lights outside of City Hall are lit up pink to celebrate the announcement that Pink will be returning for a third time to Fargo on August 19, 2023 for a concert at the Fargodome; and a video was shown of Fargo Police Academy graduate Ntumba Lusamba, who was sworn in as a Fargo Police Department Neighborhood Services Officer October 25, 2022.

Order of Agenda Approved:
Commissioner Strand moved the Order of the Agenda be approved, moving Item No. “1” from the Consent Agenda to the Regular Agenda and withdrawing Item No. “32” on 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 Regular Meeting of the Board held on October 31, 2022 be approved as read.

Second by Preston. 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. Purchase Agreement with 701 Brew LLC for property at 714 12th Street North (moved to the Regular Agenda).
2. Findings of Fact, Conclusions and Order and Notice of Entry of Order for 509 21st Street North.
3. Findings of Fact, Conclusions and Order and Notice of Entry of Order for 812 7th Street North.
4. Receive and file Notice of Appeal of Decision of Local Governing Body Romantix-Fargo, Inc. v. City of Fargo and Nicole Crutchfield.
5. 2nd reading and final adoption of an Ordinance Rezoning Certain Parcels of Land Lying in Chas A. Roberts Addition to the City of Fargo, Cass County, North Dakota.
6. Application for Games of Chance for El Zagal Holding Company for a raffle on 2/18/23.
7. Receive and file General Fund – Budget to Actual through October 2022 (unaudited).
8. Agreement for Downtown Business Improvement District Services and Materials with the Downtown Community Partnership beginning 1/1/23 through 12/31/27.
9. Change Order No. 2 in the amount of -$7,842.00 and a time extension to the completion date to 10/19/22 for Project No. FM-19-C1.
10. Negative Final Balancing Change Order No. 3 in the amount of -$97,977.10 for Project No. HD-19-A1.
11. Change Order No. 1 in the amount of $80,854.40 for Project No. SL-22-A1.
12. Change Order No. 2 in the amount of $74,316.50 for Project No. TM-22-A1.
13. Preliminary Engineering Reimbursement Agreement with the ND Department of Transportation for the 19th Avenue North Chip Seal Project.
14. Bid award to Excavating, Inc. in the amount of $2,384,231.55 for Project
No. FM-21-A2.
15. Assessment of 31.5 days of liquated damages on Project No. BN-19-A2.
16. State Water Commission request for cost reimbursement for the
Fargo-Moorhead Metropolitan Area Flood Risk Management Project in the amount of $1,153,591.33.
17. 90-day extension of FMLA for Fire Captain Jason Gisselbeck.
18. Sole Source Procurement with Center for Public Safety Excellence, Inc. in the amount of $17,820.00 and Professional Services Agreement for the updating of the Fire Department’s Strategic Plan in 2023.
19. Notice of Grant Award from the ND Department of Health and Human Services for Childhood Obesity Prevention (CFDA #93.994).
20. Receive and file September traffic enforcement efforts and 3rd Quarter hate crime updates.
21. Bid award for Water Treatment Plant Chemical Bids for 2023, as presented (AFB23007).
22. Bid award for Water Reclamation Utility Chemical Bids for 2023, as presented (AFB23008).
23. Contract and bond for Project No. UR-22-C1.
24. Bills in the amount of $16,938,817.64.

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.

Agreement for Engineering Services with Houston Engineering, Inc. for Improvement District No. BN-23-A2 Approved:
The Board received a Report of Action from the Public Works Projects Evaluation Committee (PWPEC) stating that, based on the tabulated ranking of proposals, the Consultant Selection Committee selected Houston Engineering as the preferred consultant for Improvement District No. BN-23-A2 in the amount of $1,425,840.00 with the funding source to be Special Assessments and Sales Tax Funds.
Commissioner Strand moved the Agreement for Engineering Services with Houston Engineering, Inc. for Improvement District BN-23-A2 be approved.

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.

Memorandum of Offer to Landowner for Easement (Temporary Construction Easement) and Permanent Easement (Street and Utility) with Howard C. and Barbara A. Gensler (Improvement District No. BN-23-A):
The Board received a communication from Land Acquisition Specialist Shawn Bullinger requesting authorization to proceed with a Memorandum of Offer to Landowner for Easement (Temporary Construction Easement) and Permanent Easement (Street and Utility) with Howard C. and Barbara A. Gensler in association with Improvement District No. BN-23-A. He said a final purchase price has been reached and authorization from the Board is requested to proceed with the purchase.
Commissioner Strand moved the Memorandum of Offer to Landowner for Easement (Temporary Construction Easement) and Permanent Easement (Street and Utility) with Howard C. and Barbara Gensler (Improvement District No. BN-23-A).

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.

Early Building Permit Application and Agreement for Property Located at 2983 43rd Street North Approved (Improvement District No. BN-22-C1):
The Board received a communication from the Public Works Projects Evaluation Committee (PWPEC) regarding an Early Building Permit Application and Agreement for 2983 43rd Street North. They said bids were awarded August 31, 2022 and the project has a Substantial Completion Date of September 15, 2023. They said the applicant has provided a deposit in the amount of $18,400.00 that could be used to repair any impacts from the site construction to the municipal projects and staff recommends approval of the Early Building Permit Application.
Commissioner Strand moved the Early Building Permit Application and Agreement for property located at 2983 43rd Street North (Improvement District No. BN-22-C1) be approved.

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.

Early Building Permit Application and Agreement for Property Located at 5624 Tillstone Drive South Approved (Improvement District No. BN-22-F1):
The Board received a communication from the Public Works Projects Evaluation Committee regarding an Early Building Permit Application and Agreement for 5624 Tillstone Drive South. They said the applicant has provided the required deposit in the amount of $11,952.20 that could be used to repair any impacts from the site construction to the municipal projects and staff recommends approval of the Early Building Permit Application.
Commissioner Strand moved the Early Building Permit Application and Agreement for property located at 5624 Tillstone Drive South (Improvement District No. B-22-F1) be approved.

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.

Negative Final Balancing Change Order No. 2 for Improvement District No. PR-22-E1 Approved:
Commissioner Strand moved the Negative Final Balancing Change Order No. 2 in the amount of -$25,402.86 for Improvement District No. PR-22-E1 be approved.

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.

Resident Comments:
Patrick Kelly spoke about various Ordinances and Christopher Coen spoke about police matters.

Development Agreement with Great Plains NP Holdings, LLC to Build and Operate a Parking Garage at 602-636 Northern Pacific Avenue Approved:
A Hearing had been set for October 31, 2022 to consider a Development Agreement with Great Plains NP Holdings, LLC to Build and Operate a Parking Garage at 602-636 Northern Pacific Avenue.
At the October 31, 2022 Regular Meeting the Hearing was continued to this day and hour.
Assistant City Attorney Erik Johnson said this is the fourth Public-Private Partnership the City has entered into for construction of a parking garage. He said a comparable project was Block 9, which captured taxes generated by increased values. He said the cost of that project was about $100 million, and the City borrowed money to finance the public elements of the project such as the parking garage and Broadway Square. The public benefits of the Block 9 project were 350 parking spaces where nights and weekends are free, and a free public plaza, which has proven to be very popular, he said. With the NP Parking Garage project, he said, there is common ground with the Block 9 project, including capturing taxes generated from increased property values, Tax Increment Financing funds captured on other lands, and the City will borrow funds to finance construction of the parking garage. The public benefits on the NP garage, he said, include a much larger garage than Block 9, with 455 parking spaces, with the revenues from the NP garage going to the City. The public benefits are the addition of the Fargo-Moorhead Community Theater, which has a 60-plus year tradition in Fargo and will be an important element in bringing people back Downtown again and again. He said the NP garage will have 50 spots reserved for a neighboring property owner who will be contributing property to the project. He said the maximum public cost for Block 9 was $15 million, and with the NP garage being a larger project, the maximum public cost is $20 million. He said the City is taking a risk with the NP garage with a short term shortfall of about $6 million due in the early years when exemptions need to be granted to developers and it takes a while for the TIF to build up steam.

Finance Director Terri Gayhart said the Finance team, Baker Tilly and Eide Bailly have all looked at and researched this project and in 2020, the City refinanced four large bond issues at a much lower rate. She said the savings from those refinanced bonds are more than sufficient to pay for this project with an interfund loan. She said this is another facilitator in order to get a low interest loan to make the fund stay above water.

In response to a question from Commissioner Preston asking about the refinanced debt being used to pay for the debt on the parking garage, Ms. Gayhart said it is similar to when someone refinances their home, there is a difference between the higher older payments and the new lower payments and that savings will pay for this project.

In response to a question from Commissioner Piepkorn asking if this payment set-up is acceptable, Ms. Gayhart said her team shuffled and sifted and she agrees they have it aligned now.

In response to a question from Commissioner Strand asking what are the dollar amount savings from refinancing the bonds, Ms. Gayhart said almost $90 million worth of bonds were refinanced for a savings of more than $16 million.

Commissioner Strand said when the refinancing happened his understanding was that would save the taxpayer money and give relief and he did not think it was decided how the City was going to spend the savings.

In response to a question from Commissioner Preston asking if the project will be funded through a revenue stream that has been identified, Mr. Johnson said funding sources will be a combination of TIF, parking funds and other project costs and repayment of bonds will be an interfund loan.

Commissioner Kolpack said she appreciates the additional diligence and this is an incredibly innovative approach and a great solution for FMCT, which will be a great addition to Downtown.

In response to a question from Commissioner Preston asking what happens if Cass County does not participate in the TIF, Director of Strategic Planning and Research James Gilmour said the County has the option to opt out of any TIF assistance provided to a developer; however, the law does not specifically say they can opt out when the City uses it for a public purpose. He said if the County or School District were to opt out, that could put a tax exemption that Kilbourne is relying on in jeopardy; however, that will be a step when Kilbourne applies for exemptions.

In response to a question from Commissioner Preston asking what is the impact when the County does not participate, Mr. Gilmour said it depends on what the value is in five years.

Commissioner Piepkorn said the County gets to choose whether they want to participate in a TIF; however, even if they do not participate, they still benefit from significant revenue increases and that does not seem fair.

In response to a question from Commissioner Strand asking if the developers will be participating in the shortfalls if it becomes untenable for the City, would they purchase the garage, Mr. Gilmour said that would mean transferring ownership and he is not sure the developers are interested in owning parking garages. He said the City is looking at how it can control the parking garages long term. He said the NP project is not feasible for parking garage ownership, similar to Block 9 or Bell Bank. He said the NP project has about 145 apartments and the developer does not need to own and maintain 450 parking spots. He said Bell Bank has 350 employees and it made sense for them to own a parking garage and RDO has more than 300 employees.

In response to a question from Commissioner Strand asking how many more parking garages is the City going to build, Mr. Gilmour said there will not be any parking garage projects for a long time unless a developer builds another Block 9-type project.

Mayor Mahoney said this project helps complete the north-south corridor on Broadway and it helps the south part of the business district to have more parking. He said the Black Building had difficulty renting office space due to the fact that they did not have enough attached parking. He said in the future there could be a project off Broadway.

Commissioner Strand said another concern he has is this was a public asset and the City did not advertise it to the public. Going forward, he said, it is important to give the public a chance at the process.

Mr. Gilmour said he did talk to other developers; however, the preferred developer was Kilbourne due to their track record, quality of work and their ability to get projects done.

Commissioner Piepkorn moved the Development Agreement with Great Plains NP Holdings, LLC to build and operate a Parking Garage at 602-636 Northern Pacific Avenue be approved.

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 motion was declared carried.

Renaissance Zone Project for EPIC Unite Real Estate Holdings, LLC Approved:
A Hearing had been set for this day and hour to receive comments on a Renaissance Zone Project for EPIC Unite Real Estate Holdings, LLC for a new construction project at 234 Main Avenue.
No written protest or objection to the Project has been received or filed in the City Auditor's Office.
The Board determined that no person is present to protest or offer objection to the Project.
Planning Director Nicole Crutchfield said the Renaissance Zone Project application presented by EPIC Unite Real Estate Holdings, LLC meets all of the minimum criteria set forth in the Renaissance Zone Plan and is consistent with the established goals and objectives. She said the project will be a mixed-use structure in the Fargo Renaissance Zone.

Christopher Coen, Fargo, said large cities are trying to reclaim waterfronts and reforest these areas. He said Downtown could have a natural forested area much like Lindenwood Park, which is popular.
Commissioner Strand moved the Renaissance Zone application filed by EPIC Unite Real Estate Holdings, LLC for a new construction project located at 234 Main Avenue be approved and the income tax exemptions be granted as recommended by the Renaissance Zone Authority.

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.

Parcels of Land in Fitzsimonds Second Addition Rezoned (3716, 3740 and 3750 51st Avenue South):
At a Hearing held on August 2, 2022 the Fargo Planning Commission recommended approval of a change in zoning to repeal and re-establish a C-O, Conditional Overlay in the GC, General Commercial zoning district of Fitzsimonds Second Addition.
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.
Current Planning Coordinator Donald Kress said the applicant is requesting to modify the C-O to allow the use of vehicle repair in order to construct a tire store. He said the Land Development Code identifies tire stores as a vehicle repair use and the C-O identifies this use as prohibited. The applicant is also requesting a replat of three legal lots into two to accommodate future development, he said.

Blake Carlson, Christianson Companies, said on the north lot, a climate controlled multi-story storage facility for personal storage will be built and on the south lot, a tire repair shop will be constructed.

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 Kolpack. On the vote being taken on the question of the adoption of the Resolution Commissioners Preston, Kolpack, Piepkorn, 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 in Fitzsimonds Second 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 in Fitzsimonds Second Addition to the City of Fargo, Cass County, North Dakota be placed on first reading.

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.

Resolution Adopted Approving Fitzsimonds Second Addition (3716, 3740 and 3750 51st Avenue South):
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 “Fitzsimonds Second Addition” containing 2 Lots, 1 Block and 4.10 acres of land more or less, located at 3716, 3740 and 3750 51st Avenue South; and
WHEREAS, A Hearing was held August 2, 2022 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 November 2 and 9, 2022 that a Hearing would be held in the Commission Chambers, City Hall, Fargo, North Dakota at 5:15 p.m., November 14, 2022 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 “Fitzsimonds Second 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.

Recommendation to Create a Downtown Oversight Committee Withdrawn:
This Item was withdrawn.

Red River Regional Dispatch Center Joint Powers Agreement Approved: Mayor Timothy Mahoney and Commissioner Denise Kolpack Appointed as Fargo Members of the Red River Regional Dispatch Center Board of Authority:
Fire Chief Steve Dirksen said in 2001, Fargo, Moorhead, Cass County and Clay County entered into a Joint Powers Agreement to jointly operate an emergency Dispatch Center. He said West Fargo joined in 2010 and over the past 20-plus years, there have been nine amendments to the Agreement. The growth of the communities over the past 20-plus years has necessitated changes in operations and administration of the Red River Regional Dispatch Center, he said. Due to the need for a new Dispatch Center and the growth in the region, he said, it has become necessary to review the composition of the RRRDC Board of Authority. The review began in 2019 by elected officials, City and County administrators, City and County attorneys and the chiefs and sheriffs who currently make up the Board of Authority, he said, and the process has been deliberate and thorough. Leaders in Fargo, Moorhead, West Fargo, Cass and Clay counties have worked diligently to develop this proposed Agreement, he said. It is also recommended that Mayor Mahoney and Commissioner Kolpack be appointed as the Fargo members to serve on the RRRDC Board of Authority, he said. Previously the Police and Fire chiefs and County sheriffs were running the money and budget and Police and Sheriff representatives were given operational functions, he stated. Now, each member of the five entities will have two members on the Board, he said, one being the Mayor or Commission chair and one other elected official. He said Mayor Mahoney is the Police liaison, and Commissioner Kolpack is the Fire liaison, which is why they have been recommended for appointments to the Board. Cass County has already approved this Agreement, he said, and all entities will see it before the end of the month. He said within 30 days, a new Board needs to come together for an organizational meeting and there will be a Budget and Finance Committee, which will be Mayors, elected officials and finance managers from each entity; an Executive Committee made up of Police and Fire chiefs and County sheriffs; and a Personnel Committee, which will include Human Resource Directors from each entity. He said all financial oversight will go through Cass County as all the money is funded through Cass County and there is no impact to the Fargo or West Fargo city budgets. He said several years ago, 50 cents was added to phone surcharges and all of that money has gone to Cass County to fund this project. He said the City does pay some to the Dispatch Center for general operations and some other expenses include the annual maintenance contract for the Dispatch Center’s CAD system, which was purchased in 2010. He said that contract is billed annually and costs about $500,000.00, which is split between all agencies that participate in the Dispatch Center. Based on mobile data numbers, he said, if there is any additional assessment, that would also be cost-shared. Cass County is also serving as the construction oversight entity and has put up $10 million for the project, with Moorhead and Clay County adding about $2.5 million.

Mayor Mahoney said this is an unusual agreement due to the interstate arrangements and is similar to the FM Diversion Agreement. He said Sanford has helped with the land and he hopes construction will start in early 2023.

Commissioner Kolpack said this is a very comprehensive agreement, modeled after best practices learned from the FM Diversion Agreement. She said a number of governments have come together to solve a problem for the region and this Agreement is a job well done.
Commissioner Strand moved the Red River Regional Dispatch Center Joint Powers Agreement be approved and Mayor Timothy Mahoney and Commissioner Denise Kolpack be appointed as the Fargo members of the Red River Regional Dispatch Center Board of Authority.

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.

Appointment to the Planning Committee of the Metro Flood Diversion Authority Approved:
The Board received a communication from Mayor Mahoney stating at the September 22, 2022 Metro Flood Diversion Authority Board Meeting the Board approved a Resolution establishing the Planning Committee of the Metro Flood Diversion Authority. Per the Resolution, he said, the Planning Committee membership will consist of one Diversion Authority Board Member from the six member entities. He said his recommendation would be to appoint himself to that Board.

Commissioner Kolpack moved Mayor Timothy Mahoney be appointed to the Planning Committee of the Metro Flood Diversion Authority.

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.

Appropriate Staff Authorized to Negotiate a Sewer Agreement with Commerce on I29 Association:
Water Reclamation Utility Director Jim Hausauer said the Commerce on I29 Association is requesting consideration for sewer service to serve a commercial development along I29 and 100th Avenue South. He said the development uses a 20,000-gallon private onsite sewer system/holding tank for its wastewater management and due to growth, increased water use and possible groundwater infiltration, the development has experienced increased pumping frequency and costs, previous environmental concerns and growth limitations. City staff has worked with Commerce on I29 Board members since 2017 trying to find a permanent solution to the wastewater problem, he stated. A possible solution, he said, is to work cooperatively with the Southeast Cass Water Resource District (SECWRD) to obtain a Clean Water State Revolving Fund Loan (CWSRF) to install infrastructure to connect to the City’s wastewater collection system at 64th Avenue South and 45th Street. SECWRD would be the sponsor of the low interest loan, he said, as they have assessment capability in a private/rural area, and Commerce on I29 would repay the debt service. The City has worked with SECWRD since the late 1980s to provide sewer service to areas that had limited infrastructure options to alleviate public health/environmental concerns due to improper sewer disposal, he said. The SECWRD Board approved the cooperative agreement in principle to apply for the loan and begin design of a sanitary sewer lift station and force main project, he said. Fargo would own and operate the infrastructure, he said, and Commerce on I29 will pay a volumetric rate and fee to the City. He said this Agreement will only be with Commerce on I29, and the Agreement will come back to the City Commission in a final form for approval. He said this is a good opportunity to solve a problem that has been out there for a couple of years and the City does not have to spend any money.

City Engineer Brenda Derrig said there has been discussion with the City Attorney’s office on what a Sewer Agreement could look like and one of the things discussed is the Agreement could be connected with the plat so the sewer service was only designed for the land inside Commerce on I29. She said information could be added to the Agreement so that in five years, someone cannot say they did some calculations and feel there is more capacity. She said if the Agreement is tied to only Commerce on I29, then an Amendment would have to come forward if there was any type of change. She said the City cannot stop people from asking; however, the Agreement would tie the sewer service to only that Association. Another opportunity, she said, is designing the sewer service so it can only accommodate Commerce on I29 and if the lift station and the pipeline have finite capacity that limits how many outside users can even ask to utilize the infrastructure.

Commissioner Strand asked down the road might it be stated that this was under planned and the City should have done more up front, Ms. Derrig said there are only two or three undeveloped lots in that area and it is predetermined as to what is going out there. She said the City should be able to evaluate what the last developments will be. The bigger concern, she stated, is in five or ten years is a neighbor going to come back and say their engineer evaluated the capacity and feels there is more capacity than what the City estimated. She said by containing it to Commerce on I29, that helps by tying it to that development only.

Commissioner Preston said the City cannot stop somebody from asking; however, at a recent Cass County meeting a comment was made that a neighboring property is already on the docket to make a request. She said it is going to take constitution from staff and from elected leaders to say “no “and that is where she is concerned. She said she understands trying to solve a problem; however, this problem became a problem because a previous City Commission did not follow staff recommendations and now the recommendation is to move forward with the Agreement.

Ms. Derrig said sewage is hauled by truck now to the wastewater treatment center. She said at a recent meeting, it was discussed that in five or ten years, if there is a problem, the State Environmental Health Department is going to talk to the City and ask how the City can move forward and will ask the City to help them.

Planning Director Nicole Crutchfield said she is in support of this Agreement with the understanding that it is tied directly to the plat. She said she definitely does not want to see any more raw sewage going into open ditches. They are pumping and hauling the sewage now as a solution; however, it seems temporary compared to what an official urbanized infrastructure could be.

In response to a question from Commissioner Preston asking if the planning of a Plat that is next to Commerce on I29 would come through the City Planning Commission, Ms. Crutchfield said it would and the City Commission would have to hold the line. She said an informal request for an application was rejected due to the fact that Planning did not support it.

In response to a question from Commissioner Strand asking why not build it big enough to accommodate what the future is going to be since the City is financing it, Ms. Derrig said the City is not financing it, creating the bond or the loan; it is being financed through the SECWRD and the debt will be paid by Commerce on I29. The City will own the sewer line and charge the Association a volumetric rate and add on an operation and maintenance fee. She said SECWRD has assessment authority and if the project moves forward, SECWRD will design it, construct it and 100 percent assess the development for it. Fargo will own the sewer line and operate the infrastructure, she said, and the City will get paid for owning it.

Mayor Mahoney said it was a past mistake that the City jumped out there, they thought it was cheaper for commercial and that could help some people out. He said what was learned with leapfrogging is eventually infrastructure cannot keep up. The question at hand is the environmental concern, he said.
Commissioner Kolpack moved that appropriate staff be authorized to negotiate a Sewer Agreement with Commerce on I29 Association.

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

Purchase Agreement with 701 Brew LLC for property at 714 12th Street North (Moved from the Consent Agenda):
Commissioner Piepkorn moved that the Purchase Agreement with 701 Brew LLC for property at 714 12th Street North be approved.

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

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

Commissioner Piepkorn moved that the Board adjourn to 5:00 o’clock p.m., Monday, November 28, 2022.

Second by Kolpack. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 6:25 o’clock p.m.