Fargo City Commission - February 6, 2023 Minutes

The Regular Meeting of the Board of City Commissioners of the City of Fargo, North Dakota, was held in the City Commission Chambers at City Hall at 5:00 o'clock p.m., Monday, February 6, 2023.
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 will visit the Carlson and Main libraries this month for free sessions offering job seeking assistance, veteran’s services, information on training programs, resume building assistance, limited unemployment insurance assistance and migrant and seasonal farmworker services; the February Libraries Dance workshop and story time in partnership with FM Ballet is February 8th; Dakota Medical Foundation’s Giving Hearts Day is February 9th and the City of Fargo causes include the Gladys Ray Shelter and the Fargo Police Department’s Badges of Unity Fund; and a video was shown from the Hometown Heroes event at the January 21st Fargo Force hockey game.

Order of Agenda Approved:
Commissioner Kolpack moved the Order of the Agenda be approved, withdrawing Item No. “6b” and adding an Item at the end of the Regular Agenda to discuss House Bill 1537.
Second by Piepkorn. 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 January 23, 2023 be approved as read.
Second by Strand. 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. First reading of the following Ordinances:
a. Enacting Article 10-13 of Chapter 10 of the Fargo Municipal Code Relating to Cigar Smoking in Public Places and Places of Employment Prohibited.
b. Amending and Repealing and Replacing Article 25-04 of Chapter 25 of the Fargo Municipal Code Relating to Taxicabs and Vehicles for Hire.
c. Amending Section 1-0305(A)(1) of Article 1-03 of Chapter 1 of the Fargo Municipal Code Relating to Classification of Ordinance Violations.

2. Pledged securities as of 12/31/22.

3. Direct the City Attorney to amend Fargo Municipal Code 25-1507, H. to add Alcoholic Beverage License Class “FA-Golf” to the licenses with a seasonal designation.

4. Direct the City Attorney to amend the Fargo Municipal Code adding a regulation relating to self-serve dispensing devices.

5. Gaming Site Authorization for the North Dakota Horse Park Foundation at the F-M Curling Club.

6. Applications for Games of Chance:
a. Kappa Delta Sorority for a raffle on 3/31/23.
b. NDSU Clay Target Club for a raffle on 4/22/23; Resolution for Public Spirited Organizations (withdrawn).
c. St. Mary’s Cathedral for a raffle on 5/7/23.
d. Reese Scufsa Medical Benefit for a raffle and raffle board on 2/25/23; Resolution for Public Spirited Organizations.

7. Extension of the Class “FA” Alcoholic Beverage License for Prairie Pasta, Inc. d/b/a Johnny Carino’s until 9/30/23.

8. Extension of the Class “A” Alcoholic Beverage License for Irish Hospitality d/b/a Hennessey’s Irish Pub until 8/21/23.

9. Change Order No. 2 in the amount of $16,699.00 for the multimedia studio space (PBC22-PS20135).

10. Reject bid for Newman Outdoor Field Project.

11. Planned Service Proposal with Johnson Controls at the FARGODOME (SSP23046).

12. Request for an increase of the annual fire permit fees, as proposed.

13. Piggyback purchase through the Sourcewell Cooperatives Purchasing Agreement to purchase 35 sets of structural firefighting turnout gear (PBC032620-INO).

14. Piggyback Contract with Fugro USA Land, Inc. for digital orthophotography, LiDAR/Contours, planimetrics and impervious surfaces for the GIS System (PBC-EMD-2022-CA-00011).

15. Engagement with Mullen Coughlin LLC for assistance with Breach and Privacy Counsel Services.

16. Direct the City Attorney to amend the Findings of Fact, Conclusions and Order for property located at 427 23rd Street South.

17. Change Order No. 1 in the amount of $6,000.00 for the Dangerous Building located at 924 5th Street South (RFP22112).

18. Five-year Indigent Defense Service agreements with Joe Johnson and Stormy Vickers from January 1, 2023 through December 31, 2028.

19. Subrecipient Agreements between the City of Fargo, United Way of Cass Clay and FM Area Foundation.

20. Agreement for Professional Design Services with Interface Studio LLC for Downtown InFocus Update Additional Services (SSP22027).

21. Interest Buydown Agreement PACE Program with the Bank of North Dakota and J-Street Properties LLC for the J-Street Apartment Project.

22. Receive and file Hate Crimes Report for the 4th Quarter of 2022.

23. Bid award for fuel purchasing in the 3rd and 4th quarters of 2023 (RFV23003).

24. Bid award to Swanston Equipment in the amount of $84,200.00 for the purchase of one enclosed steam generator (RFP23037).

25. Amendment to Recycling Agreement with Minnkota Enviroservices, Inc.

26. Change Orders for Project No. SW20-01:
a. No. 5 for an increase of $10,697.62 (civil construction contract).
b. No. 6 for a decrease of $759.60 (general construction contract).

27. Bid advertisement for Project No. SR-23-A.

28. Bid award to Red Stone Construction, LLC in the amount of $849,941.00 for Project No. QR-22-A1.

29. Amendment No. 1 to Task Order No. 18 with AE2S in the amount of $13,905.00 for Project No. WA2154.

30. Contract and bond for Project No. WA2158 (AFB22170).

31. Bills in the amount of $15,781,002.34.

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

Final Balancing Change Order No. 2 for Improvement District No. NR-20-A3 Approved:
Commissioner Kolpack moved Final Balancing Change Order No. 2 for an increase of $1,966.97 for Improvement District No. NR-20-A3 be approved.

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

Final Balancing Change Order No. 2 for Improvement District No. NR-20-A2 Approved:
Commissioner Kolpack moved Final Balancing Change Order No. 2 for an increase of $24,687.48 for Improvement District No. NR-20-A2 be approved.

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

Change Order No. 1 and Time Extensions for Phase 1 Interim, Substantial and Final Completion Dates for Improvement District No. BR-22-C1 Approved:
Commissioner Kolpack moved Final Balancing Change Order No. 1 for an increase of $9,177.75 and time extensions for Phase 1 Interim, Substantial and Final completion dates for Improvement District No. BR-22-C1 be approved.

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

Resident Comments:
Wess Philome spoke about police reform.

Resolution of Annexation for Property Located North and West of the Current Fargo City Limits Adopted (Portions of Section 15 and 22, T140N, R49W of the Fifth Principal Meridian, Cass County, North Dakota): Public Hearing on the Sufficiency of Protests to be Held March 20, 2023:
The Board received a communication from Assistant Planning Director Mark Williams stating the City of Fargo is initiating an annexation for parcels of land to enable future development near a gateway to Fargo, as well as to help facilitate extension of the City’s water distribution system. He said the annexation is scheduled to be reviewed by the Planning Commission on March 7, 2023, will be noticed pursuant to ND Century Code annexation statutes and the sufficiency of protests hearing would be set for the March 20, 2023 City Commission agenda.
Commissioner Kolpack moved that the Resolution entitled “Resolution of Annexation” and referred to as Attachment “A” be adopted and attached hereto.

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

Application for Abatement or Refund of Taxes #4539 and #4540 for Hobby Lobby Approved:
City Assessor Michael Splonskowski said applications for Abatement or Refund of Taxes #4539 and #4540 were filed by Ryan, Inc., representing the Hobby Lobby retail building at 4427 13th Avenue South. He said the firm is requesting a value reduction for 2021 from $7,727,000.00 to $7,210,000.00 and for 2022 from $7,727,000.00 to $7,210,000.00, a change of $517,000.00 for each year. He said information has been provided regarding the valuation of the property and a comparison to similar properties for equity purposes and against the market. With the market information that was available, he stated, the values were not able to be supported as certified; thus, new approaches to value were created and a reduction in value is warranted.
Commissioner Piepkorn moved based upon Mr. Splonskowski’s recommendation that applications #4539 and #4540 filed by Ryan, Inc., representing Hobby Lobby for abatement or refund of taxes for the 2021 and 2022 tax years on property at 4427 13th Avenue South be approved as presented.

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.

Update on Fire Station 8:
Fire Chief Steve Dirksen provided a project development update on the timeline, cost and conceptual design for Fire Station 8 to be constructed at 6617 33rd Street South.

Second Street Pedestrian Bridge Project Terminated:
City Engineer Brenda Derrig said during the design process of the Second Street floodwall, which included the relocation of Second Street, there was strong support for additional connections to the Red River from Downtown. She said the City Commission was presented an at-grade crossing and pedestrian bridge option. In late 2014, she said, the City Commission voted to approve the pedestrian bridge over Second Street; therefore, the bridge footing was incorporated into the floodwall design. Construction of the floodwall and City Hall was occurring in 2015, 2016, 2107 and 2018, she said, and during that time, the State of North Dakota created the Urban Grant Program. She said the Engineering Department saw this as a funding source for the bridge and in December 2019, the City was awarded $1 million; however, the City declined the funds due to COVID-19 and the amount needed to fund the bridge. She said the City reapplied in November 2020 and was notified of the $2.4 million award in May 2021. An engineering consultant was named in November 2021 and the public engagement process began, she said. This is now a decision point, she said, on whether to move forward with the project or return the funds to the North Dakota Department of Transportation for reallocation.
In response to a question from Commissioner Strand asking if the City could ask for the funds to be earmarked or put on hold until the final footprint of the City Hall plaza is known, Ms. Derrig said the funds have to be spent by the end of 2023 and if the decision is to terminate the project, the City needs to get the funds back to the NDDOT so they can be spent by the end of the year. She said down the road when there is a better plan for the plaza, the City could reapply.
In response to a question from Commissioner Strand asking, even though Moorhead is not interested in this project now, could the subject ever be revisited so it is a combined project, Ms. Derrig said this bridge project is not on any of Moorhead’s future plans.
Commissioner Preston said the Second Street Pedestrian Bridge Project was too early and she first wants to see the vision and concept for the plaza. She said it is also too early for the public to understand what the City is trying to do. The original concept was to get people from one side of the street to the other; however, she said, she has walked that area many times and the current entrances to the greenway are not that far apart. She said it would be wise for the City to develop this concept better and figure out what kind of timeframe might be more feasible for the project.
Mayor Mahoney said in the future it may be hard to find money for this project and pedestrian safety on Second Street should be considered. The plaza will develop around the bridge, he said, and people from Downtown come to the City Hall and the Civic Center area; therefore, if the City moves trees, installs benches and does other things to make the area into a park, more people will visit. He said the present bridge plan and amenities for the plaza could be covered by Tax Increment Financing funds.
Commissioner Kolpack said the project began almost 10 years ago and has had an extended timeline for a number of reasons, including street construction, the City Hall build, the timing of some of the federal funding and a new approach to community engagement on large projects. She said even more changes are ahead, including the F-M Diversion, the final plan for the City Hall plaza, a Performing Arts Center and things happening in Moorhead. She also heard from citizens, she stated, and it is clear that the required dollar match, given all other competing projects, is not a priority for them.
Commissioner Kolpack moved the Second Street Pedestrian Bridge Project be terminated and direct the City Engineer to notify the North Dakota Department of Transportation that Fargo will be returning the $2.4 million.

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

Applications for Property Tax Exemptions for Improvements Made to Buildings Approved:
a. Shirley Johnson T/O/D, 3211 Cherry Lane North (5 years).
b. Adriana Foley, 201 26 1/2 Avenue South (5 years).
c. Terrance and Angela Bartsh, 2532 Willow Road North (5 years).
d. Zachary Johnson, 3919 River Drive South (5 years).
e. Michaela Swanston, 1336 6th Street South (5 years).
f. Thomas and Lanette Calkins, 717 50th St South (5 years).
g. Wayne Ramsey and Patricia Olmstead, 1522 12th St S (5 years).
h. David Rider and Jayma Moore, 2874 Lilac Lane North (5 years).
i. Michael and Kimberly Gruchalla, 2849 Lilac Lane North (5 years).
j. Robert and Judith Anderson, 405 25th Ave North (5 years).
k. Gary and Amie Haugo, 808 8th St South (5 years).
l. Justin and Elizabeth Frye, 1250 5th St North (5 years).
m. William Thompson and Kimberly Luchau-Thompson, 1117 4th Street
North (5 years).
n. Albert and Valerie Schmidt, 3301 Evergreen Road North (5 years).
o. Suzanne Larsen-Johnson, 1001 42nd Avenue North (5 years).
p. James and Kathy Rugroden, 1809 13th Avenue South (5 years).
q. Three Rivers Development, LLC, 306 15th Street North (5 years).
r. Lauren Sagar Bittara, Etal, 1537 24th Avenue South (5 years).
s. Keith and Wanda Fischer, 3019 Bohnet Boulevard North (5 years).
t. Paul Gleye III and Kay Schwarzwalter, 311 8th Street North (5 years).
u. Bruce and Nancy Taralson, 1110 3rd Avenue North Unit 703E (5 years).
v. Jason Forness and Michelle Mathson, 1132 3rd Street North (5 years).
Commissioner Preston moved the applications be approved.

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.

No Action Taken on Letter in Support of HB 1460:
Commissioner Preston said HB 1460 has been voted down; therefore, no action is needed on this item.

Legislative Update:
City Administrator Michael Redlinger said Fire Chief Steve Dirksen has been working on HB1279, which was signed into law and provides protection for employees in public safety and their families and is going to provide a presumption of compensability for cardiac events. He said he has drafted testimony on HB1273, which has been scheduled for a Hearing before the House Political Subdivisions Committee. He said if there is specific feedback on that bill to let him know and he will be sure to capture the essence of what the Commission would like to say regarding prohibition of ranked choice and approval voting.
City Engineer Brenda Derrig said she has been working on two bills dealing with special assessments. She said HB 1328 deals with mobile home parks, which had a committee Hearing recently and received a “Do Not Pass” due to the differences of how all the cities do special assessments. HB1330 specifies how to spread special assessments, she said, whether by front foot, square foot or a combination or equivalent unit based on one of the three. She said the bill brings into play zoning and specific use, so she is opposing it due to the fact that Fargo’s special assessment policy references zoning and the bill would take out Fargo’s policy, which has been challenged through the years all the way to the Supreme Court and survived.
Mayor Mahoney said he has asked Commissioner Kolpack to take on the role of liaison to the Legislature. He said she is the Communications and Governmental Affairs liaison, she has an interest in legislative issues and she used to lobby for Blue Cross Blue Shield. He said having one Commissioner assigned to this role, much like the School Board does, can filter what comes to the Commission for approval. He said Commissioner Kolpack will also keep track of which staff person is testifying and she can be the City’s advocate if there is something that should be brought to the Commission’s attention.
Commissioner Kolpack said this is a new position for the Commission and ideally the Commission should have had a pre-meeting before the session to talk about guiding principles and what legislation and policy interest each Commissioner has. She said the balance for her will always be to respect every Commissioner's autonomy as an elected official as well as respecting the Commissioner’s right to bring anything individually on any issue. She said the clarification also lets the public know that she is active in this role and citizens can reach out to her on any policy issues for the Commission to consider.
Commissioner Piepkorn said he objects to this due to the fact that the City is already paying for a lobbyist and there were issues in the past with Commissioners going to the Legislature and saying things that were not reflective of everyone on the Commission. He said the Commissioners should all be lobbyists and the Commission should not be appointing just one person.
Commissioner Preston said there is confusion in how the Commission operates and what issues actually get City support and what does not or what gets left by the wayside. She said staff are constantly monitoring for anything that might be contrary to the City’s current policies; however, there are many policy issues that get dealt with in the Legislature and she would like some clarification about what should come to the Commission and how it should come to the Commission. It would be helpful to develop a clear process, she said.
Commissioner Strand said there is value in having a professional voice who represents the Commission as a group. He said he hopes the Commission can also work with the Governor's office and if need be, the courts.

Study and Letter in Support of HB 1537 Approved:
City Commissioner Arlette Preston said HB 1537 provides for the establishment of a State level anti-bias crime for the underlying crimes of harassment, aggravated assault and criminal mischief when the targeted victim is in a protected class, the same classes in the City of Fargo Ordinance passed in 2021. She said the legislation is similar to Fargo’s Ordinance in that it requires training and reporting for all law enforcement across the State. She said a particular case in Fargo went to the State level due to the fact that it was an aggravated assault instead of a simple assault and due to this, there is value in having a State level anti-bias crime law in place.
Mayor Mahoney said it should be suggested to the Legislature that there be an amendment to have them study the bill in order to get prosecuting attorneys on board.
Chief David Zibolski said creating an enhanced crime to an underlying criminal offense would allow for an additional penalty for any crime in which the motivation was a protected class.
Mayor Mahoney said one of the problems law enforcement had was there had to be education and many law enforcement groups in rural sites did not know how they would fund that training.
Chief Zibolski said Police Officer Standards and Training had concerns in terms of their ability to do what was asked in the bill and if this is moved into a study, the Police and the Commission could work on it together.
Commissioner Strand said trends are evolving targeting certain groups of people and making them more vulnerable and marginalized. He said he supports all efforts to elevate the standards of respect for everyone.
Chief Zibolski said the manner in which the Ordinance in Fargo had to be constructed put it in a position where it did not have an effect on the penalty.
Commissioner Kolpack moved to support a study for State level anti-bias crime legislation.

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

Commissioner Preston moved the Fargo City Commission indicate support for HB 1537 by sending a letter to the members of the House of Representatives Judiciary Committee.

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

Liaison Commissioner Assignment Updates:
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., Tuesday, February 21, 2023.

Second by Kolpack. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 6:00 o’clock p.m.