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Fargo City Commission - October 16, 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 4:00 o'clock p.m., Monday, October 16, 2023.
The Commissioners present or absent were as shown following:
Present: Kolpack, Piepkorn, Preston, Mahoney.
Absent: Strand.
Mayor Mahoney presiding.

Mayor Mahoney announced that the City Commission will retire into Executive Session in the Red River Room for the purpose of attorney consultation regarding threatened litigation pertaining to 501 Main Avenue, and to discuss negotiating strategy or providing negotiating instructions to its attorney or other negotiator regarding the threatened litigation, and to receive its attorney’s advice and guidance on the legal risks, strengths or weaknesses of an action of the public entity. To discuss these matters in an open meeting will have a negative fiscal effect on the bargaining and/or litigation position of the City of Fargo, he said, thus, an Executive Session for said matters is authorized pursuant to North Dakota Century Code
§44-04-19.1 subsections 2, 5 and 9.
Commissioner Preston 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 pending litigation matter.

Second by Kolpack. 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 said matter in Executive Session.
Members present were: Kolpack, Piepkorn, Preston, Strand, Mahoney.

The Executive Session closed at 4:45 o’clock p.m. and the meeting reconvened in public session at 5:00 o’clock p.m.
All Commissioners present. Mayor Mahoney presiding.

The Mayor read a message with the following information: ND Job Service staff will visit the Main Library on October 17th to provide job seeking assistance, veteran’s services, information on training programs, resume building assistance, limited unemployment insurance assistance and migrant and seasonal farmworker services; teens can make their own Spooky Terrariums on October 19th at the Main Library; “Recognizing Reptiles: The-Not-So-Creepy-Crawlers” event will be at the Main Library on October 28th; the National Academy of Construction selected the U.S. Army Corps of Engineers Fargo-Moorhead Metropolitan Area Flood Risk Management Project as recipient of its Recognition of Special Achievement Award; and a video was shown featuring firefighters who graduated recently from the Joint Training Academy.

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

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

Minutes Approved:
Commissioner Preston moved that the Minutes of the Regular Meeting of the Board held on October 2, 2023 be approved as read.

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

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

1. Letter of Support for the Smart Wash Laundry project to the ND Opportunity Fund.
2. Second Amendment to Developer Agreement with J Street Properties, LLC.
3. Findings of Fact, Conclusions and Order, Notice of Entry of Order for property located at 1809 14th Avenue South.
4. Second Amendment to the Findings of Fact, Conclusions and Order for property located at 437 23rd Street South.
5. Receive and file an Ordinance Amending Section 25-1508 of Article 25-15 of Chapter 25 of the Fargo Municipal Code Relating to Alcoholic Beverages.
6. Receive and file an Ordinance Amending Section 13-1011 of Article 13-10 of Chapter 13 of the Fargo Municipal Code Relating to Recreational Aquatic Facilities.
7. Receive and file an Ordinance Amending Article 13-14 of Chapter 13 of the Fargo Municipal Code Relating to Hotels & Motels.
8. 2nd reading and final adoption of an Ordinance Rezoning Certain Parcels of Land Lying in EOLA 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 EOLA Second Addition to the City of Fargo, Cass County, North Dakota.
10. Amendment to Lease Agreement with North Dakota State Board of Higher Education and North Dakota State University for the FARGODOME Remodel and Conference Center Addition.
11. Site Authorizations for Games of Chance:
a. Horse Race ND at Sidestreet Grille and Pub (amended).
b. Red River Human Services Foundation at Blarney Stone Pub.
c. Red River Human Services Foundation at District 64.
12. Applications for Games of Chance:
a. Centennial Elementary PTO for bingo on 10/27/23 and 1/12/24.
b. 4 Luv of Dog Rescue for a raffle on 11/4/23.
c. Lincoln Elementary PTA for a raffle on 10/27/23.
d. United Way of Cass-Clay for a raffle board on 11/14/23.
e. Shiloh Masonic Lodge #1 for a raffle on 5/4/24.
f. Project Pink Plaid (fka Project Pink) for a raffle on 10/26/23.
13. Piggyback purchase through Insight Public Sector with ZenCity for the purchase of a community engagement software platform (PBC23183).
14. Acceptance of additional ND Department of Emergency Services FY 2022 Grant Funds for the Fargo Fire Department (CFDA #97.042).
15. Engineering Services Agreement Amendment No. 4 with Houston Engineering Inc. in the amount of $84,000.00 for Project No. FM-22-C0 (6228).
16. Negative Final Balancing Change Order No. 4 in the amount of -$12,328.45 for Project No. TN-22-B1.
17. Bid advertisement for Project No. QR-24-A1.
18. Bid advertisement for Project No. SL-23-B1.
19. Bid advertisement for Project No. SN-23-B1.
20. Final Balancing Change Order No. 2 in the amount of $2,983.23 for Improvement District No. PN-22-M1.
21. Change Order No. 1 for a time extension to the final completion date to 1/15/24 for Improvement District No. PN-23-E1.
22. Change Order No. 4 in the amount of $19,017.73 for Improvement District No. BN-22-C1.
23. Right of Way Use Agreement with Ledgestone Inc. for property located at 6617 33rd Street South.
24. Amended and Restated Skyway Use Agreement with the Bostad Condominium Association.
25. Bid Award to Martinson Lot Maintenance and All-Terrain for snow and ice removal services (RFP23191).
26. Engagement Letter with PFM Financial Advisors LLC (EX23205).
27. Notice of Grant Award with the ND Department of Health and Human Services for the Women, Infant and Children Program (CFDA #10.557).
28. Notice of Grant Award with the ND Department of Health and Human Services for PHEP – Public Health Workforce Supplemental Funding II (CFDA # 93.354).
29. Notice of Grant Award with the ND Department of Health and Human Services for Public Health Infrastructure and Workforce (CFDA #93.967).
30. 2024 Benefit Renewals effective 1/1/24, as presented.
31. Request for out-of-grade pay for Matt Bruggeman, Engineering Tech II effective from 3/20/23 to 7/9/23.
32. Set October 30, 2023 at 5:15 p.m. as the date and time for a Public Hearing on a dangerous building located at 1208 University Drive South.
33. Set October 30, 2023 at 5:15 p.m. as the date and time for a Public Hearing on a dangerous building located at 1710 1st Avenue South.
34. Updated art concept for the Skyway Mosaic project.
35. Memorandum of Understanding with Flock Group, Inc. and the Fargo Police Department.
36. Memorandum of Understanding between St. Paul District, US Army Corps of Engineers and the Fargo Police Department.
37. Bid award to Swanston Equipment in the amount of $228,800.00 for the purchase of one loader mounted snow blower (RFP24001).
38. ND State Revolving Fund Program Loan Agreement with the ND Public Finance Authority for Solid Waste Revenue Bond, Series 2023E and Series 2023F (Project Nos. SW 23-01 and SW 23-04).
39. Bills in the amount of $10,870,295.09.

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:
There were no resident comments.

Update on General Fund - Budget to Actual through September 2023 and 2023 Year End Projections:
Finance Director Susan Thompson said revenues are down about $2 million, expenses are also down by about $2.8 million; therefore, year to date revenues exceed expenditures by about $1 million. She said the State aid payment was lower based on some new funding mechanisms and the State will be sending a one-time payment before year end in the amount of nearly $2 million. She said special assessment and CIP revenue is higher than budget and it has been very busy with City wide projects. She said interest is higher and there are also some salary savings built into the expenditures. Year-end projections will be reported on a quarterly basis, she said, and in order to accomplish these projections in a meaningful way, she and her staff had conversations with department heads regarding expectations and plans and she will make budget adjustments that relate to some of these variances and that will come forward in November, which will also include the increased franchise fees. She said after a little house cleaning, projections show that at the end of the year, the budget will show slightly over revenues versus expenditures. Disclaimers and wildcards include having a normal winter, she stated, as well as receiving the State aid, franchise fee and highway fund payments and no unusual year-end adjustments.
In response to a question from Commissioner Preston asking if the savings on the expense side are from vacant positions, Ms. Thompson said they are.
In response to a question from Commissioner Strand asking why the increase in franchise fees is starting earlier than the beginning of the calendar year, Ms. Thompson said the request was put through to start as soon as the Public Service Commission could get it approved and she was recently told the increase can start in November, which will have an impact on the current budget.

In response to a question from Commissioner Preston asking when will the City Commission see the final budget report, Ms. Thompson said there will be another report in December; however, the final report will not be available until a few months into the New Year after final audit adjustments.

Parcels of Land in Southwest Fargo Mission Second Addition Rezoned (4451, 4455 and 4475 40th Avenue South):
A Hearing had been set for July 10, 2023 to consider a change in zoning from P/I, Public and Institutional to P/I, Public and Institutional and GC, General Commercial with a C-O, Conditional Overlay.
At the July 10, 2023 meeting the Hearing was continued July 24, 2023.
At the July 24, 2023 meeting the Hearing was continued to August 21, 2023.
At the August 21, 2023 meeting the Hearing was continued to this day and hour.
Current Planning Coordinator Donald Kress said the proposal is to replat two existing lots into a minor subdivision. He said the applicant proposes a mixed-use project on one of the lots with underground parking, commercial uses on the ground floor and about 57 units of residential above. The C-O includes restricting some uses and adding design standards consistent with other overlays on the City’s arterial roads, he said, and the proposed parking lot encroaches into an easement for Southeast Cass Water Resources District (SECWRD). He said an encroachment agreement has been completed between the applicant and SECWRD. The Conditional Use Permit to allow residential living in the GC zoning district on Lot 1 was approved, he said; however, that will not come into effect until the zoning change is approved.
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 Lying in Southwest Fargo Mission 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 Lying in Southwest Fargo Mission 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 Southwest Fargo Mission Second Addition:
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 “Southwest Fargo Mission Second Addition” containing 2 Lots, 1 Block and 10.77 acres of land more or less, located at 4451, 4455 and 4475 40th Avenue South; and
WHEREAS, A Hearing was held May 2, 2023 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 June 28 and July 5, 2023 that a Hearing would be held in the Commission Chambers, City Hall, Fargo, North Dakota at 5:15 p.m., July 10, 2023 at which time said Plat would be considered and all interested persons would be heard. At the July 10, 2023 City Commission meeting, the Hearing was continued to July 24, 2023. At the July 24, 2023 City Commission meeting, the Hearing was continued to August 21, 2023. At the August 21, 2023 City Commission meeting, the Hearing was continued to October 16, 2023.
NOW, THEREFORE, BE IT RESOLVED, That the findings and recommendations of staff and the Planning Commission be accepted and the Plat entitled “Southwest Fargo Mission 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.

Special Assessment List for New Bridge, Underground Utilities, Paving, Shared Use Path and Structure, and Incidentals Improvement District No. BN-21-A Approved:
A Hearing had been set for October 2, 2023 on the special assessment list for New Bridge, Underground Utilities, Paving, Shared Use Path and Structure, and Incidentals Improvement District No. BN-21-A.
At the October 2, 2023 Regular Meeting, the Hearing was continued to this day and hour.
The Board received a communication from City Attorney Nancy Morris stating that at the October 2, 2023 meeting, a citizen protested the assessment pertaining to Improvement District No. BN-21-A. The basis for the protest is the citizen’s assertion that there could be no assessment for the bridge structure because the bridge spans the Interstate, she said, and that the Interstate right-of-way is not yet part of the City; therefore, the project was not “within the municipality” as required in accordance with ND Century Code. She said she has not found any case law or statutory interpretation to support that position. Century Code specifically provides that municipalities may defray the expense of “the following types of improvement by special assessments: the improvement of the municipal street system and any part thereof… or public place within the municipality…” She said the bridge starts and ends within the municipality and is therefore a public space within a municipality. The bridge is a necessary and integral part of the municipal street system for which the use of special assessment financing is authorized by statute, she said. Practical application of the statute dictates that the municipal street system be permitted to continue contiguously, she said, and to the extent any property is not annexed, the amount of benefit would be assessed at the time of annexation. She said it is her legal conclusion that this is a proper assessment of the property that is located within the City.
City Engineer Tom Knakmuhs said here was a lot of conversation about this topic; however, the fact is the bridge connects two City roadways that are in the City limits. He said only a third of the bridge structure was special assessed, another third came from State funds and another third came from City funds. He said he could also make the argument that the portion special assessed is abutments and embankments and all of those are within the City limits. He is confident the City is following State statute and can move forward with certifying these special assessments, he stated.
In response to a question from Mayor Mahoney asking if the amount of the special assessments to the landowner was capped, Mr. Knakmuhs said the cap for the structure is just over 1.5 cents per square foot and the City did not meet that cap for this project, so the amount assessed was less than the cap.
Timothy Nasheim, 6622 Crofton Lane South, said he would like to see how the funds were divided and regarding the law and special assessments, there are no provisions in the law pertaining to projects outside the municipality and there is nothing that says “connecting the municipality.” He said the law specifically states “within the municipality.” The City attorney formed an opinion, he said, and the City is the City Attorney’s client; therefore, the opinion is going to represent the
attorney-client relationship. He said he hopes the City Commissioners use their best judgment and follow the law.
Special Assessment Coordinator Dan Eberhardt said he agrees with the City Attorney’s and City Engineer’s conclusions and the City Commission should certify the project as was requested and approved by the Special Assessment Commission.
Commissioner Kolpack said she appreciated the memo from the City Attorney, which was laid out very clearly.
Commissioner Piepkorn moved the Special Assessment List for New Bridge, Underground Utilities, Paving, Shared Use Path and Structure, and Incidentals Improvement District No. BN-21-A 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.

Hearing on a Dangerous Building Located at 924 7th Street North: City Attorney's Office Directed to Prepare the Appropriate Findings of Fact and Order:
A Hearing had been set for this day and hour on a dangerous building located at 924 7th Street North.
Inspections Director Shawn Ouradnik said the owner of the building is FM Property Pros II, LLC, who has failed to comply with the order to either obtain a permit to repair or remove the heavily damaged structure within the time allowed. He said the story and a half structure was built in 1908 and is currently being used as a
3-plex. The building is unsafe and constitutes a public nuisance pursuant to Fargo Municipal Code, he said, and the Inspections Department has found many violations, including multiple boarded up windows and doors, large amounts of overgrowth and many citizen complaints about squatter activity. He said his Inspectors have said this is the most needles they have ever seen in a building. He said Inspectors did speak to a contractor working across the street from this building, who agreed to give a bid to the owners to remove the dangerous building; however, the owners did not act on the bid.
Commissioner Piepkorn moved the City Attorney’s Office be directed to prepare and serve the owner with the appropriate Findings of Fact and Order and the Inspections Department be authorized to solicit proposals for the removal of this structure if it is not removed within the time allowed by the Board’s Order of December 15, 2023.

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.

Appointment to the Economic Development Incentives Committee Approved:
The Board received a communication from Mayor Mahoney recommending that Erik Barner be appointed to the Economic Development Incentives Committee to fill the vacancy created by Jim Buus who resigned his position on the Committee.
Commissioner Kolpack moved Erik Barner be appointed to the Economic Development Incentives Committee.

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

Appointment of Members to the Fargo Youth Initiative for the 2023-2024 School Year Approved:
The Board received a communication from City Commissioner Denise Kolpack on her recommendations for appointments to the Fargo Youth Initiative (FYI) for the 2023-2024 academic school year. She said she would like to recommend the following interested participants:
Returning Members: Abhijna Kavasseri (North-12), Madeline Abbott
(Shanley-12), Jadyn Chakua (North-11), Patrick Shen (Davies-12), Angel Mochage (Davies-12).
New Members: Ava Martin (South-11), Koral Siegel (South-9), McKenzie Lynn Olson (North-11), Kallie Andersen (Davies-11), Steph Kramer (South-11), Abigail Hamilton (Davies-9), Isabella Meyer (North-10).
Commissioner Kolpack moved the members be appointed to the Fargo Youth Initiative for the 2023-2024 school year be approved as recommended.

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

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

Commissioner Kolpack moved that the Board adjourn to 5:00 o’clock p.m., Monday, October 30, 2023.

Second by Preston. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 5:37 o’clock p.m.