Fargo City Commission - December 11, 1023

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, December 11, 2023.
The Commissioners present or absent were as shown following:
Present: Kolpack, Piepkorn, Strand, Mahoney.

Absent: Preston.
Mayor Mahoney presiding.

Mayor Mahoney announced that the Board will retire into Executive Session in the Red River Room for the purpose of attorney consultation regarding pending opioid litigation with McKinsey and Company, and to discuss Fargo Municipal Code Sections
10-0307 ¬¬ Persons Using Streets not to be Molested and 10-0311 - Panhandling; to receive its attorneys’ advice and guidance on the legal risks, strengths and weaknesses of an action of a public entity, which, to discuss these matters in public in an open meeting would have an adverse fiscal effect on the City. Thus, an Executive Session for these matters is authorized pursuant to North Dakota Century Code 44-04-19.1 subsections 2, 5 and 9.
Commissioner Kolpack moved the Commissioners meet in Executive Session in the Red River Room as authorized by NDCC, Section 44-04-19.1 subsections 2, 5 and 9 to discuss said matters.

Second by Piepkorn. All the Commissioners present 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 the litigation matters in Executive Session.
Members present were: Kolpack, Piepkorn, Strand and Mahoney
Members absent: Preston.

The Executive Session closed at 4:55 p.m. and the meeting reconvened in public session at 5:00 o’clock p.m.
All Commissioners present except Commissioner Preston. Mayor Mahoney presiding.

Commissioner Strand moved the City opt in to the opioid litigation Settlement Agreement against McKinsey and Company.

Second by Kolpack. On call of the roll Commissioners Strand, Kolpack, Piepkorn and Mahoney voted aye.
Absent and not voting: Commissioner Preston.
The motion was declared carried.

Commissioner Kolpack moved to direct the City Attorney to prepare Ordinances repealing Sections 10-0307 and 10-0311 of Article 10-03 of Chapter 10 of the Fargo Municipal Code Relating to Persons Using Streets Not to be Molested and Panhandling and place the Ordinances on first reading at the next regularly scheduled meeting of the Board of City Commissioners and further direct the City Attorney to consider other Ordinances for enforcement purposes.

Second by Strand. On call of the roll Commissioners Kolpack, Strand, Piepkorn and Mahoney voted aye.
Absent and not voting: Commissioner Preston.
The motion was declared carried.

The Mayor read a message with the following information: Gingerbread House Decorating sessions for kids will be December 14th at the Northport Library and December 16th at the Main Library; Job Service ND will visit the downtown Main Library on December 19th to offer job seeking assistance, veteran services, information on training programs, resume building assistance, limited unemployment insurance assistance and migrant and seasonal farmworker services; all three Library locations are accepting new or handmade cold weather items for their Mitten Trees; the Fargo Police Department’s Traffic Safety Unit will be back patrolling the streets this fall; and a video was shown highlighting the City departments that participated in the annual Xcel Energy Downtown Community Partnership Holiday Lights Parade on December 2nd.

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

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

Minutes Approved:
Commissioner Strand moved that the Minutes of the Regular Meeting of the Board held on November 27, 2023 be approved as read.

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

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

1. Letter of Support for J & S Holdings, LLC project to the ND Opportunity Fund.
2. Amendment to Developer Agreement, Tax Increment Note, Certificate of Completion and Private Placement Memorandum with Wild Oak Group, LLC (Tax Increment Financing District 2020-01).
3. Application for Abatement or Refund of Taxes #4549 for property located at 2609 11th Street South requesting a reduction in value from $319,900.00 to $270,400.00; staff is recommending a reduction in value to $289,800.00 for 2023.
4. Findings, Conclusions and Order of the Board of City Commissioners of the City of Fargo regarding the License Violation of District 64.
5. Extension to Lease Agreement with Red River Properties, LLP for the Police Department Building.
6. 1st reading of an Ordinance Enacting Section 8-0610 of Article 8-06 of Chapter 8 of the Fargo Municipal Code Relating to Rotary Traffic Islands.
7. 1st reading of an Ordinance Amending Section 25-1508 of Article 25-15 of Chapter 25 of the Fargo Municipal Code Relating to Alcoholic Beverages.
8. 2nd reading and final adoption of an Ordinance Rezoning a Certain Parcel of Land Lying in Ekman Addition to the City of Fargo, Cass County, North Dakota.
9. 2nd reading and final adoption of an Ordinance Rezoning Certain Parcels of Land Lying in Urban Plains by Brandt Seventh Addition to the City of Fargo, Cass County, North Dakota.
10. 2nd reading and final adoption of an Ordinance Rezoning Certain Parcels of Land Lying in Timber Parkway Eighth Addition to the City of Fargo, Cass County, North Dakota.
11. 2nd reading and final adoption of an Ordinance Rezoning Certain Parcels of Land Lying in Timber Parkway Tenth Addition to the City of Fargo, Cass County, North Dakota.
12. Applications for Games of Chance:
a. NDSU Saddle and Sirloin for a raffle on 2/10/24.
b. NDSU Men’s Lacrosse Club for a raffle on 3/15/24.
c. The Outdoor Adventure Foundation, Inc. for a raffle and raffle board on 3/23/24.
13. Consent to Construct Agreement with 221 Main, LLC for property located at 221 Main Avenue.
14. Developer Agreement with Urban Plains Land Company, LLC for Urban Plains by Brandt Seventh Addition.
15. Negative Final Balancing Change Order No. 2 in the amount of -$135,314.00 and 31-day time extension to substantial and final completion dates for Project No. SR-23-A1.
16. Negative Final Balancing Change Order No. 1 in the amount of -$163,765.00 for Project No. SR-23-B1.
17. Negative Final Balancing Change Order No. 2 in the amount of -$71,174.60 for Project No. TM-23-A1.
18. Change Order No. 1 in the amount of $99,725.00 for Project No. FM-21-A2.
19. Bid advertisement for Project No. NR-24-A.
20. Bid award to Parsons Electric LLC in the amount of $927,349.00 for Project No. SL-23-B1.
21. Bid award to Northern Improvement Company in the amount of $346,494.03 for Project No. SN-23-B1.
22. Bid award to PCI Roads LLC in the amount of $536,628.71 for Project No. QR-24-A1.
23. Purchase Agreement, Sales Contract Addendum and Agreement Addendum Buyer’s Conflict of Interest Disclosure with Wells Fargo Bank, N.A., as Trustee of the Jeffrey Donat Trust U/A (Improvement District No. BN-23-E1).
24. Create Improvement District No. TN-23-A (Traffic Signal Improvements).
25. Amended Engineer’s Report for Improvement District No. BR-23-G.
26. Negative Final Balancing Change Order No. 6 in the amount of -$504,886.62 for Improvement District No. BN-22-C1.
27. Final Balancing Change Order No. 3 in the amount of $6,509.21 for Improvement District No. BN-22-F1.
28. Final Balancing Change Order No. 3 in the amount of $43,496.90 for Improvement District No. BR-23-C1.
29. Negative Final Balancing Change Order No. 2 in the amount of -$167,152.75 for Improvement District No. UN-23-A1.
30. Contract and bond for Improvement District No. BR-24-A1.
31. Master Services Agreements for Engineering/Architectural Services (RFP24010 and RFP24011).
32. Receive and file General Fund – Budget to Actual unaudited monthly financial statements through 11/30/23.
33. Resolutions Prescribing Rates and Charges for the Forestry Utility and the Street Lighting and Traffic Control Devices System Utility beginning on 1/1/24 as part of the 2024 budget (Attachment “A”).

34. First Amendment to the Joint Powers Agreement (Red River Regional Dispatch Center) with Cities of West Fargo and Moorhead, and the Counties of Cass and Clay.
35. Notice of Grant Award from the ND Department of Emergency Services for the FY 2023 State Homeland Security Program in the amount of $136,000.00 and related budget adjustments (CFDA #97.067).
36. Mutual Aid Agreement – Memorandum of Understanding with the City of Jamestown, ND Fire Department.
37. Bid award to Carr’s Tree Service, Inc. in the amount of $144,899.00 for winter pruning operations (RFP24012).
38. Notice of Grant Award from the ND Department of Health and Human Services for the Regional Public Health Network and related budget adjustments. (CFDA #93.991).
39. City of Fargo Employment Policy Revisions, as presented.
40. Memorandum of Understanding with the Bureau of Alcohol, Tobacco, Firearms and Explosives Regarding the National Integrated Ballistic Information Network (NIBIN) system implementation.
41. Direct the City Attorney to draft an amendment to City Ordinance 8-0806 - Officer to Report.
42. Bid award to Sanitation Products in the amount of $598,674.00 for the purchase of two auto side load refuse trucks (RFP24014).
43. Bid award to Sanitation Products in the amount of $144,760.00 for the purchase of one container handler truck (RFP24015).
44. Bid award to Sanitation Products in the amount of $353,839.00 for the purchase of one high compaction front load refuse truck (RFP24016).
45. Purchase of eight Police Department Replacement Vehicles for 2024 from Nelsons Auto Center in the amount of $380,759.52 (PBC23376).
46. Final Balancing Change Order No. 5 in the amount of $60,145.19 for Project No. SW 22-01.
47. Memorandum of Understanding with the City of Moorhead Regarding Purchase of Software for the MATBUS Transit System.
48. Resolution Authorizing the Issuance and Sale of $6,400,000.00 City of Fargo Taxable Sales Tax and Water Revenue Bond and ND State Revolving Fund Program Loan Agreement with the ND Public Finance Authority for Project No. WA2255 (Attachment “B”).
49. Bills in the amount of $10,363,120.88.

Second by Piepkorn. On call of the roll Commissioners Kolpack, Piepkorn, Strand and Mahoney voted aye.
Absent and not voting: Commissioner Preston.
The motion was declared carried.

Resident Comments:
Deni Paramarta spoke about prairie gardens.

Hearing on an Application Filed by John Deere Electronic Solutions for a Property Tax Exemption Continued to January 8, 2024 (4101 19th Avenue North):
A Hearing had been set for this day and hour on an application filed by John Deere Electronic Solutions, a Division of John Deere & Company, for a property tax exemption for a project to be located at 4101 19th Avenue North, which the applicant will use primarily for manufacturing and programming of receivers, displays, controls, modems and inverters; however, staff is recommending the Hearing be continued to January 8, 2024.
Commissioner Piepkorn moved the Hearing be continued to 5:15 o’clock p.m. on Monday, January 8, 2024.

Second by Kolpack. On call of the roll Commissioners Piepkorn, Kolpack, Strand and Mahoney voted aye.
Absent and not voting: Commissioner Preston.
The motion was declared carried.

Application for Abatement or Refund of Taxes #4552 Requesting a Value Adjustment for the 2023 Tax Year on Property Located at 2653 45th Street South Approved:
Assistant City Assessor James Haley said an application for Abatement or Refund of Taxes #4552 was filed by Café Holdings, LLC, requesting a value reduction for 2023 from $2,378,000.00 to $1,100,000.00. He said the applicant has waived their right to a Hearing and has agreed to a value adjustment for the 2023 tax year. With the information provided by the applicant, the appraiser’s review and the current condition of the property, he said, new approaches to value were created and he recommends the 2023 certified value be adjusted to $2,090,000.00, a reduction of $288,000.00.
Commissioner Piepkorn moved based upon Mr. Haley’s recommendation that the application for abatement or refund of taxes #4552 filed by Café Holdings, LLC requesting a value adjustment of real estate taxes for the 2023 tax year on property at 2653 45th Street South be approved, as presented.

Second by Kolpack. On call of the roll Commissioners Piepkorn, Kolpack, Strand and Mahoney voted aye.
Absent and not voting: Commissioner Preston.
The motion was declared carried.

Discussion regarding the North Broadway Bridge (Project No. QR-23-A0):
City Engineer Tom Knakmuhs said several options were evaluated as part of the North Broadway Bridge study. Option 1 would replace the bridge at the same elevation, he said, and would be the least expensive option that still results in a new bridge; however, the bridge would still be heavily affected by flood events. The second option offers two different routes, one connects the bridge onto 37th Avenue North and another connects it to Royal Oaks Drive North with varying impacts to nearby property owners, he said, and the price tags for those options are $36.8 million and $46.4 million, respectively. The final option is to not replace the bridge, he said, and detour traffic away from the area, which would cost $818,000.00; however, the results of a public survey indicate this is not the most popular option. He said the survey revealed that while a majority of people want a bridge built, most are not willing to pay for it. More than 1,200 people completed the survey, he said, and 55 percent said they feel impacted by the demolition of the bridge. Respondents were split on a preferred replacement option, he said, where 62 percent want to see a new bridge built and 38 percent favor a no-build option. Only 41 percent of the respondents said they are willing to help pay for the project through special assessments, with 59 percent saying “no.” Currently, the City covers 84 percent of the project costs through local funding, he stated, and assesses the remaining 16 percent in special assessments against nearby properties. He said about 3,000 people used to take the bridge each day, mostly traveling south into Fargo in the morning and heading north into Clay County at night. Part of the cost benefit analysis was determining the impact on drivers in the long term with and without a bridge, he said. That included the additional time it takes travelers and the impact of the additional greenhouse gas emissions from their vehicles, he said. Results from the cost benefit analysis favored building the bridge at its existing elevation, while all other options showed costs outweighing the benefits. Those benefits are weighed against the costs of the project, he said, including upfront construction costs, acquiring right-of-ways and future maintenance of the bridge.
In response to a question from Commissioner Kolpack asking how the no-build option could have more costs than benefits, Mr. Knakmuhs said not building the bridge increases travel time, operating costs and delaying people due to the fact that they have to take an alternative route that is longer. In the long term, he said, the cost that it has on travelers outweighs the benefits of saving on construction costs. In addition, he said, while Fargo would share the cost of construction with Clay County, both entities have concerns over funding. He said Fargo has $7.8 million for the project through Federal and Prairie Dog funds. If the City were to choose, for example, Option 1 and build the bridge at its current elevation for $20.3 million, he stated, there would be a City funding shortfall of about $4.7 million, assuming Clay County pays its $7.8 million share. The shortfall would increase should a more expensive option be chosen, he stated. Clay County's $7.8 million contribution would come from $2.5 million in state bridge bonding, he said, while $5.3 million would come from local County funding, a figure Clay County Board members felt they could not support. He said $5.3 million in County funding would be equivalent to their annual County-wide engineering Capital Improvement Plan; therefore, Clay County would struggle to prioritize all that funding towards one project. Should the City move forward without financial assistance from Clay County, he said, the City would have to consider cutting future projects and redirect money to the bridge. The projects that may have to be cut in the City include the NP Avenue reconstruction, pavement rehabilitation and core neighborhood reconstruction. He said all of the analysis comes down to two main questions: Does the City support one of the build options and if they do, how does the City pay for the project? If the decision is to support one of the build options, he said, it appears the current cost splits and proposed financing plan are not supported by Clay County; therefore, an alternative financing plan would need to be developed. No decision is needed tonight, he said; however, a decision will have to be made by the City Commission on December 26th.

Hearing to be held December 26, 2023 to Reconsider the City Commission’s Action on the Appeal of a Board of Adjustment’s Decision Regarding a Land Management Permit at 338 9th Avenue South:
Commissioner Strand said since the vote on the Land Management Permit on November 27th, he has been contacted by residents telling him it is important for the City to encourage projects like this due to the fact that they want more sustainability, resiliency and climate-friendly actions and pollinator gardens. He said there has to be rules and the City has to follow those rules and do things properly; however, as Chairman of the City’s Sustainability and Resiliency Committee, there are a lot of suggestions about how to take this further.
Commissioner Kolpack said she originally did not support the prairie garden’s Land Management Permit; however, since the vote she had received more information from the property owner and she has spoken with City administration about the garden’s upkeep.
Commissioner Piepkorn said his concern is the City cannot allow residents to do whatever they want with City land. The number one issue is this is public land, he stated, and how did an individual person feel it is their right to start taking actions on City property. He said just because the property used to be a part of someone’s property does not mean that person gets preferential treatment. If the City starts doing this, he said, everyone needs to have an opportunity to have access to this land, not just one person. He also expressed concerns about additional maintenance costs for weed control and mowing for the City if there are more prairie gardens.
The Mayor said the City has a policy for allowing residents to use public land and there are City funds dedicated to the installation of prairie gardens.
Commissioner Strand moved to reconsider the City Commission’s action taken on November 27, 2023 on the appeal of a Board of Adjustment’s decision regarding a Land Management Permit at 338 9th Avenue South and a Hearing be scheduled for 5:15 p.m. on Tuesday, December 26, 2023 .

Second by Kolpack. On call of the roll Commissioners Strand, Kolpack and Mahoney voted aye.
Commissioner Piepkorn voted nay.
Absent and not voting: Commissioner Preston.
The motion was declared carried.

Appointments to the Metro Flood Diversion Board of Authority and Policy Committees Approved:
The Board received a communication from Mayor Mahoney stating the Metro Flood Diversion Board of Authority requests the City Commission appoint its representatives to the Metro Flood Diversion Board of Authority and Finance, Land Management and Planning Committees for 2024. He is recommending the following appointments:

FM Diversion Board of Authority:
Mayor Timothy Mahoney
City Commissioner Dave Piepkorn
City Commissioner John Strand
City Commissioner Arlette Preston (alternate)

FM Diversion Finance Committee:
Mayor Timothy Mahoney
City Commissioner Dave Piepkorn
City Administrator Michael Redlinger
Finance Director Susan Thompson

FM Diversion Land Management Committee:
City Commissioner Arlette Preston
City Administrator Michael Redlinger
Assistant City Engineer Nathan Boerboom

FM Diversion Planning Committee:
Mayor Timothy Mahoney
Commissioner Piepkorn moved the appointment of members to the Metro Flood Diversion Board of Authority and Policy Committees for calendar year 2024 be approved, as presented.

Second by Kolpack. On call of the roll Commissioners Piepkorn, Kolpack, Strand and Mahoney voted aye.
Absent and not voting: Commissioner Preston.
The motion was declared carried.

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

Commissioner Strand moved that the Board adjourn to 5:00 o’clock p.m., Tuesday, December 26, 2023.

Second by Kolpack. All the Commissioners present voted aye and the motion was declared carried.
The time at adjournment was 5:40 o’clock p.m.