Fargo City Commission - March 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 4:30 o'clock p.m., Monday, March 6, 2023.
The Commissioners present or absent were as shown following:
Present: Kolpack, Piepkorn, Preston, Strand, Mahoney.
Absent: None.
Mayor Mahoney presiding.

Mayor Mahoney announced that the City Commission will retire into Executive Session for the purpose of attorney consultation regarding pending opioid litigation with Teva, Allergan, CVS, Walgreens and Walmart to receive its attorney’s advice and guidance on the legal risks, strengths and weaknesses of an action of a public entity, which, to discuss these matters in open meeting will have a negative effect on the bargaining and/or litigation position of the City. Thus an Executive Session for these matters is authorized by NDCC, Section 44-04-19, 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, subsections 2, 5 and 9 to discuss said matter.

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.

At 4:31 o’clock p.m. the Board moved to the Red River Room to discuss the said matter in Executive Session.
Members present were: Kolpack, Piepkorn, Preston, Strand, Mahoney.

The Executive Session closed at 4:50 p.m. and the meeting reconvened in public session at 5:00 o’clock p.m.

Commissioner Strand moved the settlement participation forms for Teva, Alergan, Walmart, Walgreens and CVS be approved as presented and to authorize the Mayor to execute the same for filing with the court.

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.

The Mayor read a message with the following information: The emerald ash borer has been confirmed in Moorhead and in preparation of its arrival in Fargo, the Forestry division has proactively replaced more than 3,600 boulevard ash trees since 2012, reducing the ash population to less than 24 percent of the total inventory; the Seed Library has returned to the Fargo Public Library and the public can pick up and try out a variety of vegetable, herb and flower seeds for free; tech help services are available for residents at the Carlson Library; Archaeologist George Holley will visit the Main Library March 14th to present “Uncovering Pieces of the Past;” a new library in Frisco, Texas, features a mural that will forever memorialize Fargo’s role in Frisco’s history; and a video was shown about Cass Clay Food Partners, an organization which advocates for all members of the community to have safe, nutritious and affordable food.

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

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 February 21, 2023 and the Special Meeting held on February 28, 2023 be approved as read.

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

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

1. 2nd reading and final adoption of an Ordinance Rezoning Certain Parcels of Land Lying in Duane’s Pizza Addition to the City of Fargo, Cass County, North Dakota.
2. Notification to Red River Properties of the City’s intent to exercise the purchase option for the building and land located at 105 25th Street North and 131 24th Street North.
3. City of Fargo Resolution Authorizing Officers to Make Deposits and Withdrawals (Attachment “A”).
4. Applications for Games of Chance:
a. Essentia Health Fargo Foundation for a raffle on 3/23/23.
b. GiGi’s Playhouse for a raffle on 3/24/23.
c. NDSU Lions Club for a raffle on 3/23/23.
d. NDSU Sigma Alpha Professional Agricultural Sorority for a raffle on 3/25/23.
e. Veterans Honor Flight of ND/MN for a calendar raffle from 3/7/23 to 3/5/24.
5. Negative Final Balancing Change Order No. 3 in the amount of -$421,111.14 for Improvement District No. PR-22-F1.
6. Memorandum of Offer to Landowner for Easements (Temporary Construction Easement) and Permanent Easements (Water Main) with the State of North Dakota and the North Dakota State Board of Higher Education on Behalf of the North Dakota State University of Agriculture and Applied Science (Improvement District No. UN-23-A1).
7. Memorandum of Offer to Landowner for Permanent Easement (Sanitary Sewer) with the State of North Dakota and the North Dakota State Board of Higher Education on Behalf of the North Dakota State University of Agriculture and Applied Science (Improvement District No. BN-22-C1).
8. Bid advertisement for Project No. PR-23-F.
9. Bid advertisement for Project No. SR-23-B.
10. Bid advertisement for Project No. UN-23-B.
11. Skyway Mosaic Artwork Project License Agreement with Thomas Schmidt and LesleyAnne Buegel.
12. Amendment to Right of Way Agreement with Bell Bank and Olaf Anderson, Inc.
13. Settlement Agreement and Release; Permanent Easement (Levee and Retaining Wall for Flood Control); Permanent Easement (Storm Sewer); and Easement (Temporary Construction Easement) with Stanton L. Andrist and Jan C. Nelson for property located at 131 South Woodcrest Drive North (Improvement District No. FM-19-C).
14. Create Improvement District No. BR-23-F.
15. Engineering Services with KLJ to provide a MEP Assessment of the Police Department building.
16. Agreement with Richland County Health Department.
17. Agreement for Services with FM Wellness Coalition and North Dakota State University.
18. Amendment to Agreement for Services with Great Outcomes Consulting, LLC (SSP23052).
19. Request to implement the CredibleMind Platform (SSP23053).
20. Variance Acknowledgement and Liability Waiver with Park District of the City of Fargo for property located at 502 1st Avenue South.
21. Cost share for the Growth Plan Consultant Services, as presented (RFP22106).
22. Reject and reissue the proposals for compact track/wheel loaders and utility work machines with alternative terms (RFP23042A and RFP23042B).
23. Four month lease extension with AT&T to keep wireless equipment on Water Tower No. 1 until 9/30/23.
24. Bid advertisement for Project No. WA2255.
25. Bills in the amount of $9,882,502.46.

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

Resident Comments:
Mars Ness-Ludwig, Kristin Nelson, Rynn Willgohs, Travis Heinen and Cody Schuler spoke about LGBTQ issues.

Resolution Adopted Approving Dakota Air Parts Addition (2505 39 1/2 Avenue North; 3910 and 4020 25th Street North):
A Hearing had been set for this day and hour to consider approval or denial of an application requesting a Plat of Dakota Air Parts Addition (Major Subdivision) a replat of Lots 1-3, Block 1, DDK Addition to the City of Fargo, Cass County, North Dakota.
Current Planning Coordinator Donald Kress said this subdivision is a replat of three lots in the DDK Addition configuring them into a different three-lot configuration. He said the plat also dedicates right-of-way for 25th Street North along the east property frontage and vacates existing access easements. This requirement for dedication of right-of-way makes it a major subdivision, he said, and a zoning change is not proposed.
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 “Dakota Air Parts Addition” containing 3 Lots, 1 Block and 5.86 acres of land more or less, located at 2505 39 1/2 Avenue North; 3910 and 4020 25th Street North; and
WHEREAS, A Hearing was held December 6, 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 February 22 and March 1, 2023 that a Hearing would be held in the Commission Chambers, City Hall, Fargo, North Dakota at 5:15 p.m., March 6, 2023 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 “Dakota Air Parts 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.

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.

Hearing on Special Assessments for Sewer Repairs on Certain Properties in the City of Fargo:
A Hearing had been set for this day and hour on the special assessments for sewer repairs on the list of properties on file in the City Auditor’s Office.
No appeals have been filed in writing against any item appearing on such special assessment list and no person is present at this Hearing to appeal or offer any objection thereto.
City Auditor Steve Sprague said the assessments are petitioned for by the property owner to have their sewer line repaired or replaced. He said last year there were 186 participants with a total dollar amount of $2,627,000.00. City funds were contributed if a homeowner connected to the main, he said, and that amount last year was $891,000.00.
Commissioner Piepkorn moved the sewer repair special assessment list 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.

Federal Aid Transportation Project Urban Grant Program Year 2025 and Urban Regional Roadway Program Year 2027 Applications Approved:
The Board received a communication from Transportation Division Engineer Jeremy Gorden stating the North Dakota Department of Transportation (NDDOT) is soliciting project applications for the Urban Grant Program and the Urban Regional Roadway System. He said the Urban Grant Program is for projects in the Central Business Districts of each of the 11 urban areas in North Dakota. The Urban Regional Roadway System within Fargo is comprised of Main Avenue, 52nd Avenue South east of I-29, 19th Avenue North east of I-29, 12th Avenue North east of I-29 and the combined system of 10th Street and University Drive, he said. Four stretches of roadway were identified as good candidates for the application, he said, and staff recommends applying for South University Drive reconstruction from 13th to 18th Avenue South and Main Avenue Concrete Pavement Repair from 25th to 45th Street. Total construction cost for the South University Drive project would be $30.9 million, he said, with $18 million in Federal funding, $2.2 million from NDDOT and $10.7 million in local funds. He said this project would also include some Transit upgrades and a shared use path. Total construction cost estimate for the Main Avenue project would be $16.1 million, he said, with $12.8 million in Federal funding, $1.6 million from NDDOT and $1.6 million local. He said staff also identified a potential project for the Urban Grant Program in 2027 that would replace existing bricks within the intersections on Broadway at 2nd, 4th and 6th Avenues North, as well as updating the ADA ramps on Broadway from Main Avenue to 6th Avenue North. The estimate for that project is $2.9 million, he said, with $2.34 from the Federal government and $586,000.00 in local funding.
In response to a question from Commissioner Preston asking if the project on South University Drive will get neighborhoods and businesses involved in the design, Mr. Gorden said it is very early in the process now; however, as the project moves closer, there will be public input meetings.
In response to a question from Commissioner Preston asking about the different buckets of money, City Engineer Brenda Derrig said MetroCOG is the designated Transportation Management Association (TMA) for the region, which successfully negotiated a Transportation Improvement Program whereas NDDOT will continue to manage regional highway projects, which was a positive step for the City.
Commissioner Piepkorn moved the Federal Aid Transportation Project Urban Grant Program Year 2025 and the Urban Regional Roadway Program Year 2027 applications be approved, as presented.

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.

City Attorney Directed to Prepare the Appropriate Ordinances to Establish the Parameters for Operation of a Pedal Tour Business:
City Auditor Steve Sprague said the Liquor Control Board recently saw a presentation from Fargo Pedal Tours, a company that would like to operate a pedal-powered trolley in the Downtown area, providing a history tour of homes and landmarks.
Thomas Stromme, co-owner of Fargo Pedal Tours LLC, said the goal of this company is to create a family-friendly experience through a pedal-powered trolley, which would offer tours of Downtown Fargo and the surrounding area. On each bike, he said, there are ten pedal seats and four riding seats plus the pilot seat. The bikes are Department of Transportation approved, he stated, with headlights, brake lights, a horn, turn signals, a braking system, an illuminated license plate and all of the seats are adjustable height and have seat belts. Public and private rides will be offered, he said, with costs averaging about $40.00 with the rides lasting about 90 minutes. He said routes would be contained to areas north of I-94, east of University Drive and south of 19th Avenue North. The pedal tours will have a bring-your-own-beverage model, he said, and will be available six to eight months out of the year. Each pedal tour will be led by a pilot who is knowledgeable about Fargo sites and history, he said, and each tour will start and end at a designated location. He said riders cannot get on or off at any time. Tours will take place seven days a week, he said, and hours will vary with all tours concluding 30 minutes after sunset. He said he has spoken with the City Attorney in Sioux Falls, South Dakota, and was advised that there have generally been no repeat issues with the operation in South Dakota, where the business operates all year, even in winter.
City Attorney Nancy Morris said there are other jurisdictions that operate on City streets and some issues that would be need to be addressed would be open containers, the speed of the vehicle, impeding traffic and noise issues.
In response to a question from Commissioner Preston asking what type of liquor license will the business need, Mr. Sprague said a liquor license would not be required as they would not be selling alcohol.
Commissioner Kolpack said she looks forward to reviewing the Ordinances if this item is passed tonight.
In response to a question from Mayor Mahoney asking if the pedal bikes would be louder than an ice cream truck, Mr. Stromme said the bikes will comply with Noise Ordinances.
Commissioner Piepkorn moved to direct the City Attorney to prepare the appropriate Ordinances to establish the parameters for operation of a pedal tour business.

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.

Appointments to the Arts and Culture Commission Approved:
The Board received a communication from Mayor Mahoney recommending Tracy Walvatne, Tracy Jordre and Deb Williams be reappointed to the Arts and Culture Commission and that Anna Johnson be appointed to fill the unexpired term of Denise Kolpack.
Commissioner Kolpack moved Tracy Walvatne, Tracy Jordre and Deb Williams be reappointed to the Arts and Culture Commission for three-year terms ending June 1, 2025, and Anna Johnson be appointed to fill the unexpired term of Denise Kolpack for a term ending June 1, 2024.

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.

Spring Flood Outlook:
Division Engineer Nathan Boerboom shared lists of flood projects completed since 2009, in-town levees built as of 2022, storm sewer lift stations completed and under construction as well as those to be built by the end of 2027. He said the key message regarding the 2023 spring flood outlook from the National Weather Service to date is the risk for significant spring flooding has increased slightly along the main stem Red River; however, it is still below or near the long-term historical averages across the basin. He said last fall, the ground went in to winter with very dry conditions and this winter the frost is not very deep due to heavy snow received early. The flood outlook for spring will depend on the thaw cycle, he said, and if and when heavy rains are received. He presented a series of slides showing soil moisture, modeled snow water equivalents in the Red River Basin comparing 2022/2023 to previous years, as well as charts showing the chances the Red River will exceed flood stage as of February 20, 2023. Those chances, he said, range from 5 percent at 36.7 feet to 95 percent at 21.9 feet. He discussed actions the City takes at various flood levels. He said there are three major components that go into what a spring flood eventually looks like. He said the first is fall moisture, next is the stream flow and finally frost and snowpack. He then showed slides comparing water on the landscape in 2009 compared to current conditions.
Commissioner Strand said everyone needs to pay attention to the weather in the next few weeks and it is good the City is more protected now than ever.
Mr. Boerboom said a lot of work has been completed in the past 14 years and if the City did see a 37-foot flood, it is manageable. He said it would still be a lot of work and Public Works would be very busy; however, with what has been accomplished over the last 14 years, the City is in a much better position.
In response to a question from Mayor Mahoney asking how many sandbags would be needed if the river does get to 37 feet, Mr. Boerboom said about a half million.

Legislative Update:
City Administrator Michael Redlinger said these are the last few weeks of committee work and some bill Hearings were delayed last week due to weather. He said Planning Director Nicole Crutchfield, Strategic Planning and Research Director Jim Gilmour and Assistant City Attorney Erik Johnson are working with the ND Commerce Department to improve some language in SB 2391, which deals with the Renaissance Zone program. He said Fargo provided testimony in opposition to HB 1040, which sunsets the defined NDPERS benefit plan and replaces it with a defined contribution plan, and also testified in support of SB 2239, which retains the NDPERS plan but increases employer and employee contributions. He said he is also watching HB 1273, which would prohibit political subdivisions in North Dakota from instituting Ranked Choice and Approval Voting, which moved out of the Judiciary Committee to the State and Local Government Committee.
Commissioner Preston said with Library bills SB 2360 and SB 1205, Fargo needs to put its full force effort into stopping these bills, as well as bills that deal with gun sales and Approval Voting. She said she wants to be sure the Lobbyist is working behind the scenes with lawmakers who may be open to opposing these bills and to clearly state the City Commission is in strong opposition to these bills.
Commissioner Kolpack said the Commission is supporting the local control issues.
Commissioner Preston said the Lobbyist did not seem to know much about the Library bills and she wants to make sure the Lobbyist is engaged.
Mayor Mahoney said Library Director Tim Dirks has spoken about the City’s position in regard to the Library bills and the City’s Lobbyist is firmly in that same position. He said he does not want to see librarians arrested and the last time the gun sales bills came up the City was successful in the courts.
Commissioner Piepkorn said he would like to know exactly what the City Commission is voting on and that he does not know exactly what is in the Library bills; however, he would be concerned if adult-based books were in the Children’s section.
In response to a question from Commissioner Piepkorn asking if there is a current policy that addresses what is appropriate for the Children’s section, Library Director Tim Dirks said the Library has a “Collection Development Policy” that addresses books for the Children’s section. He said there is also an “Access to Materials Policy;” however, he wants to empower parents to have those discussions with their children and the Library works to represent the whole community. He said the Library has in its collection about 319,000 items that would be potentially impacted by the current language of the bills. He said the language is extremely broad and there is a Class B misdemeanor attached to it and himself, as the Library Director, would be the first one up in terms of the misdemeanor. He said HB 1205 takes collection development out of the control of the appointed Library Board, and the Library has to report to the State in terms of what is in the collection of a Public Library. He said in order to vet the entire collection, the Library would have to shut down instead of serving the public and he does not think that is a good expenditure of the taxpayers’ money.
Commissioner Strand said this is an important issue and the City Commission needs to support the Library Board.
Commissioner Preston moved to direct the Mayor to submit, on behalf of the Fargo City Commission, written and/or verbal testimony to the appropriate committees and to the entire Cass County legislative delegation voicing opposition to SB 2360 and SB 1205 relating to censorship of books and materials available to consumers of public libraries.

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

Commissioner Preston moved to direct the Mayor and City Administration to submit, on behalf of the Fargo City Commission, written and/or verbal testimony to the appropriate Senate Committee members and to all Cass County Senators voicing strong opposition to legislation relating to local control, to include HB 1273 (prohibits Approval Voting) and to direct the City’s Lobbyist to engage in working with individual Legislators to defeat this bill.

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

Commissioner Preston moved to direct the Mayor and City Administration to submit, on behalf of the Fargo City Commission, written and/or verbal testimony to the appropriate Senate Committee members and to all Cass County Senators voicing strong opposition to legislation relating to local control, to include HB 1340 (prohibits municipalities ability from fully exercising zoning authority) and to direct the City’s Lobbyist to engage in working with individual Legislators to defeat this bill.

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

Fargo City Commission to Join Governor Burgum, the Chamber and Others to Grow the City’s Workforce:
Commissioner Strand said human rights issues have surfaced and there has not been a consistent message of where Fargo stands. He said there are workforce issues in North Dakota and if people want to work in North Dakota, all of these human rights topics will affect people’s choice on whether North Dakota or Fargo is in their future. Governor Doug Burgum has said one of his top priorities is to address the State’s workforce shortage, he said, and the Chamber of Commerce and the Fargo-Moorhead Convention and Visitors Bureau have spoken strongly about the anti-trans bills presented in the ND Legislature and stated if these bills pass, there will be unintended consequences. The Human Rights Commission came up with a unanimous message that this specter of bills will do harm and hurt people and the City Commission needs to stand with the HRC and the Governor to embrace the message that the anti-trans bills are a detriment in light of the thousands of job openings North Dakota.
Mayor Mahoney said Fargo is an embracing community and has worked hard to get workforce in the community. He said the community has grown by 20 percent in the last 10 years and there are opportunities for people who want to come to Fargo to live, work and play. He said this is an important statement the City has to make in that the Fargo City Commission stands for people and stands for them coming into the community.
Commissioner Strand moved that the City of Fargo join Governor Burgum, the Fargo-Moorhead West Fargo Chamber of Commerce and many others in a call to urgently and successfully grow the workforce and to join the Human Rights Commission opposing legislation targeting marginalized and at-risk community members, thereby narrowing the pool of people otherwise available to fill the thousands of vacant jobs in North Dakota.

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.

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

Commissioner Preston moved that the Board adjourn to 5:00 o’clock p.m., Monday, March 20, 2023.

Second by Kolpack. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 6:34 o’clock p.m.