Fargo City Commission - May 13, 2024 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, May 13, 2024.
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: The monthly Jigsaw Puzzle Social and Swap is May 18th at 9 a.m. at the Main Library; the Spring Plant Swap will be May 20th from 6 to 7 p.m. outside the Carlson Library; resident one-on-one tech help is available May 14th from 11:00 a.m. to 1:00 p.m. at the Carlson Library and May 15th from 3:00 to 5:00 p.m. at the Main Library; and a video was shown of the May 1st groundbreaking of the Avery Apartments and Fargo-Moorhead Community Theatre, which includes a new home for the FMTC, businesses, 160 living spaces and a 472-space parking garage.

Order of Agenda Approved:
Commissioner Piepkorn moved the Order of the Agenda be approved, moving Item No. “24” from the Consent Agenda to the Regular Agenda.
Second by Kolpack. All the Commissioners voted aye and the motion was declared carried.

Minutes Approved:
Commissioner Kolpack moved that the Minutes of the Regular Meeting of the Board held on April 29, 2024 be approved as read.
Second by Preston. All the Commissioners voted aye and the motion was declared carried.

Consent Agenda Approved:
Commissioner Preston moved the Consent Agenda be approved as follows:
1. Grant Agreement with the ND Department of Corrections and Rehabilitation and its Division of Juvenile Services, the ND Association of Counties, City and County jurisdictions as listed and Youthworks for 2024.
2. Waive requirement to receive and file an Ordinance one week prior to 1st reading and 1st reading of an Ordinance Amending Section 4-0101.1 of Article 4-01 of Chapter 4 of the Fargo Municipal Code Relating to the General Provisions Governing City Officials and Employees.
3. Waive requirement to receive and file an Ordinance one week prior to 1st reading and 1st reading of an Ordinance Amending Section 5-0406(1) of Article 5-04 of Chapter 5 of the Fargo Municipal Code Relating to the Fargo Police Advisory and Oversight Board.
4. 1st reading of an Ordinance Amending Section 4-0402 of Article 4-04 of Chapter 4 of the Fargo Municipal Code Relating to Authorizing the City Commission to Approve Program of Interfund Loans.
5. 1st reading of an Ordinance Amending Section 25-1504.1 of Article 25-15 of Chapter 25 of the Fargo Municipal Code Relating to Alcoholic Beverages.
6. 2nd reading and final adoption of an Ordinance Rezoning Certain Parcels of Land Lying in Erskine’s Addition to the City of Fargo, Cass County, North Dakota; 1st reading, 4/29/24.
7. Applications for Games of Chance:
a. Hudson Longtin Benefit for a raffle board on 6/26/24; Public Spirited Resolution.
b. Red River VW Club for a raffle on 7/27/24.
8. Contract and bond for Project No. SR-24-B1.
9. Memorandum of Understanding with the City of West Fargo and the City of Moorhead for the procurement of an Engineering Consultant to complete a grant application for a Regional Transportation Management Center.
10. Contract Amendment No. 1 with Houston Engineering, Inc. in the amount of $19,414.00 for Project No. QR-23-A0.
11. Purchase Agreement with the Union of Sisters of the Presentation of the Blessed Virgin Mary United States Province for property located at 3000 11th Street South (Project No. NR-25-B1).
12. Agreement - Early Building Permit with Valor Contracting, LLC for 3601 46th Avenue North (Improvement District No. BN-23-J1).
13. Preliminary Engineering Reimbursement Agreement with the North Dakota Department of Transportation (Improvement District No. BN-27-A1).
14. Change Order No. 1 in the amount of $4,675.00 and the Interim Duration Modifications as presented for Improvement District No. BR-24-A1.
15. Change Order No. 4 in the amount of $15,335.00 for Improvement District No. BR-23-E1.
16. Memorandum of Offer to Landowner for Easement (Temporary Construction Easement) with Riley, Inc. (Improvement District No. BR-24-F1).
17. Easement (Temporary Construction Easement) with Amy R. Matejcek (Improvement District No. AN-24-B1).
18. Bid award to Dakota Underground Company, Inc. in the amount of $10,156,047.56 for Improvement District No. BN-23-F1.
19. Bid award to Master Construction Company, Inc. in the amount of $484,271.05 for Improvement District No. BR-24-G1.
20. Bid awards for Improvement District No. NR-23-C1:
a. General construction contract to Meyer Contracting, Inc. in the amount of $523,902.20.
b. Electrical construction contract to Sun Electric, Inc. in the amount of $405,000.00.
21. Bid award to FM Asphalt LLC in the amount of $1,568,148.00 for Improvement District No. PN-24-A1.
22. Bid award to Northern Improvement Company in the amount of $1,589,990.40 for Improvement District No. PR-24-H1.
23. Contract and bond for Improvement District No. PR-24-G1.
24. Items from the FAHR Staff meeting (moved to the Regular Agenda):
a. Receive and File - Sales Tax Update.
b. Budget Adjustment using Landfill Capital Improvement funds in the amount of $200,000.00 for the purchase of front-load containers for Route 535.
c. Budget Adjustment in the amount of $60,000.00 for fiber installation at Fire Station No. 8.
d. Budget adjustment in the amount of $159,300.00 for the purchase of a portable basketball floor at the FARGODOME (RFP24167).
e. Promotion of three Firefighters to Captains in 2024, to coincide with the opening of Fire Station No. 8.
25. Purchase of Service Agreement with Northern Cass Public School District.
26. Purchase of Service Agreement with Central Cass Public School District.
27. Resolution Approving Plat of Buchholz Addition (Attachment “A”).
28. Resolution Approving Plat of South Ridge Second Addition (Attachment “B”).
29. Agreement for Emergency Veterinary Services with Red River Animal Emergency Clinic, LLC d/b/a Red River Animal Emergency Hospital and Referral Center.
30. Assignment and Assumption of Mosquito Spraying Agreement with Airborne Vector Control, LLC to Vector Disease Control International, LLC (RFP23049).
31. Authorization Application for Vector Disease Control International, LLC to provide aerial mosquito spraying.
32. Extension of FMLA leave for LeRoy Curry.
33. Contract Amendment with the NDDOT to provide funding for transit capital funds under the regulations of Section 5339, Bus and Bus Facilities Formula Program Grant (Contract #38231161).
34. Contract and bond for Project No. WW1707.
35. Purchase from Merrick Industries, Inc. in the amount of $176,698.00 for Project
No. WA2451 (EX24207).
36. Bills in the amount of $12,052,982.57.
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.

First Amendment to Developer Agreement with Grove Enclave, LLC for a One-Year Extension Approved:
Strategic Planning and Research Director Jim Gilmour said Grove Enclave, LLC has requested a one-year extension to the deadline for the redevelopment of the former Kmart property on South University Drive. He said the deadline to complete the project is December 31, 2024. The minimum improvements included 20,000 square feet of retail space and two new stand-alone commercial buildings, he stated. The developer has constructed 30,000 square feet of commercial space, he said; however, work has not yet started on the stand-alone commercial buildings. The developer indicated construction will start within two months on a stand-alone building, he said, and construction may start this fall on the second stand-alone commercial building. He said the developer has kept him informed on the status of the project and stated to him that it has been difficult to find tenants for the commercial spaces. The Economic Development Incentives Committee has reviewed the request and recommends approval of a one-year extension, he said.

Austin Morris, Enclave Development, said they worked with Beyond Shelter to redevelop the Kmart site as there was the opportunity to provide housing on the western portion due to the depth of the site, plus a 30,000 square foot retail center was developed. A tenant is on the northernmost portion, he said, a carwash to the south and there will be two pad portions on the east rather than three. He said there is one signed lease for that and construction will start in the next couple months, and the other, the Burger King parcel, will be demolished and become a new retail establishment. He said the reality for the timing is that the project will get started this year; however, when looking at the original development agreement and being compliant from a TIF standpoint, he is avoiding waiting to ask for an extension until December.

In response to a question from Commissioner Preston asking how the extension affects the developed and undeveloped parcels, Mr. Gilmour said the City will not provide the Tax Increment Funding note until the project is completed. If the project is not completed until the fall of 2025, he said, that is when the note would be given and the developer would have a 15-year return of property taxes paid, so it delays the developer’s procurement of their investment.

Commissioner Piepkorn moved that the First Amendment to the Developer Agreement with Grove Enclave, LLC for a one-year extension 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.

Matthew Schlenvogt Appointed to the Economic Development Incentives Committee:
The Board received a communication from Mayor Mahoney stating Jessica Ebeling has resigned her position on the Economic Development Incentives Committee; therefore, he is recommending Matthew Schlenvogt be appointed as a member of the committee.

Commissioner Piepkorn moved Matthew Schlenvogt be appointed as a member of the Economic Development Incentives Committee.

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

Applications for Property Tax Exemptions for Improvements Made to Buildings Approved:
a. Dream Homes LLC, 312 10th Avenue North (5 years).
b. David and Pamela Olson, 1233 9th Street North (5 years).
c. Rommesmo Family LLP, 4438 Carrie Rose Lane South (5 years).
d. Matthew and Katie Chaussee, 2314 18th Avenue South (5 years).

Commissioner Piepkorn moved the applications be approved.

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

Protests Received and Declared Insufficient Improvement District No. BN-23-G:
The Statutory Resolution of Necessity for the construction of New Utility and Paving Construction Improvement District No. BN-23-G in the City of Fargo, North Dakota, was duly published in the official newspaper for the City of Fargo, North Dakota, on March 27, 2024 and protests representing 45.1% of the legal protest area have been received and filed in the office of the City Auditor within the legal protest period.
City Engineer Tom Knakmuhs said Improvement District No. BN-23-G was created by the City Commission on March 18, 2024 and the Resolution declaring the improvements necessary was first advertised on March 27, 2024. North Dakota Century Code states that within 30 days after the first publication of the Resolution, the owners of any property within the district can file written protests, he said. Typically, the determination of sufficiency occurs at the same time City Commission considers Engineering's recommendation to award or reject a construction contract for improvements, he said; however, due to a change in the original bid opening date, bids for the project have not yet been opened. Since one protest was received, amounting to 45.1% of the lmprovement District, and to ensure compliance with Century Code, he requests that the City Commission takes action to determine protests as insufficient. The declaration of insufficient protest by the City Commission does not dictate any future decisions, such as award of the construction contract, he said, it simply determines that the one protest received falls short of the 50% threshold required to bar the proceeding of Special Assessments upon property within the lmprovement District. The project location is along 19th Avenue North, west of 45th Street, north of the Horse Park and immediately west of Mid America Steel, he said, and the new roadway being planned is 23rd Avenue North and 53rd Street North. He said Mid America Steel Addition was platted in 2016 and Veterans Industrial Park Addition was platted in 2023. Bids were originally planned to be opened April 24th; however, an easement is still being worked on to cross the Magellan pipeline so the bid opening is scheduled for May 22nd. Notice was sent to property owners March 21st, he said, and included the estimated total cost of $4,289,034.96 and estimate of special assessment amounts, which for Mid America Steel is $633,494.85 or 14.8% of the total. He said Century Code allows for calculation of benefit based upon front foot, square foot or a combination and in this case, it is based on front footage. He said typically determination of protests is done at the time of the award of the contract; however, since bid opening has been delayed, the request is for the determination now. He said he is asking the Board to determine that the one protest received falls short of the 50% threshold required to bar the improvements from proceeding. He said on May 28th, following the May 22nd bid opening, a recommendation will be made to either award the contract or reject bids. If awarded, he said, the improvements would be constructed in 2024 and in 2025, assuming work is complete, the project would be certified and notice sent to property owners, the Special Assessment Commission (SAC) would hold a Hearing with the opportunity to dispute benefits or make alterations. An assessment list is filed with the City Auditor who then publishes the list, he said, and any aggrieved person may appeal action by filing written notice.

Mark Hanson, Attorney at Nilles Law, representing Mid America Steel, said this case is different. Mid America Steel is an ESOP, he said, and has a fiduciary obligation to not just write a check when it does not feel justified. Mid America has paid specials, he said, it was in the amount of $1.2 million for 19th Avenue. He said the road curves and touches Mid America Steel; thus, the ESOP employees now have an estimated bill of hundreds of thousands of dollars. He said it is not that Mid America Steel says the do not want to pay specials or says they do not benefit, it is that the City entered into an agreement with the developer that says the developer has agreed to pay the costs for the initial project, 53rd Street and 23rd Avenue. He said he would submit that the Improvement District is void and invalid and he requests it not go any further.

City Attorney Nancy Morris said procedures have been followed to the benefit of all the citizens of Fargo and this is a well-established, time and court tested process which has been challenged previously and upheld. She said she has advised the attorney for Mid America Steel that the City disagrees with his interpretation on the Developer Agreement, which is between the developer and the City, so an outside party is not in a position to argue the terminology. She said what is before the Board is a math question, essentially is there a 50% protest and if not, the motion is to declare the protests insufficient.

Commissioner Preston said the road being concrete adds to the costs. She said at some point, Mid America Steel may lose access points that were originally platted due to traffic flow on 19th Avenue.

In response to a question from Commissioner Strand asking what the steps are if protests are insufficient, Mr. Knakmuhs said the property owner could contest at the Special Assessments Commission (SAC) Hearing, likely in the fall of 2025, and once determination of benefit is made it comes to the City Commission. He said if the benefit has already been determined for adjacent properties, that cost cannot be reallocated to other properties and the City would have to essentially choose to buy down Mid America’s cost related to benefit.

Mayor Mahoney said there are some options the company could consider later, such as a deferral if it is not being developed, or as the area develops there is an empty space that could be developed or sold.

Commissioner Kolpack moved the protests be received and filed and declared insufficient for Improvement District No. BN-23-G.

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

City of Fargo’s Section 5307 Federal Transportation Administration Grant Preliminary Program of Projects for 2024 Approved:
A Hearing had been set for this date and hour to consider the City of Fargo’s Section 5307 Federal Transportation Administration Grant Preliminary Program of Projects for 2024.
The Board determined that no one is present to protest thereto.

Transit Director Julie Bommelman said the Section 5307 Federal Transportation Administration Grant Preliminary Program of Projects for 2024 made available to the City this year is $2.965 million. These are not discretionary funds, she said, they are appropriations that are determined annually. The funding in this particular grant was reduced due to the City moving to a large urban classification this year. She said each year she brings suggested projects to the Commission for a Public Hearing and approval to move forward submitting and executing the grant. She shared a list of the proposed functions and activities.

Commissioner Strand moved the City of Fargo’s Section 5307 Federal Transportation Administration Grant Preliminary Program of Projects for 2024 be approved.

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

Permanent Route and Service Changes for MATBUS Approved:
A Hearing had been set for this date and hour to consider permanent route and service changes for MATBUS.
The Board determined that there have been no written or verbal protests and no one is present to protest thereto.

The Board received a communication from Transit Director Julie Bommelman stating the cities of Fargo and Moorhead are considering service changes to MATBUS operating hours and routes effective July 1, 2024, with extended Saturday service hours to begin August 26, 2024. From 2021 to 2024, MATBUS has enacted various temporary reductions in service to provide consistent and reliable service levels in the face of a long-term driver shortage, she said. MATBUS has seen a decrease in ridership post COVID-19, she said, dropping from 1.8 million rides in 2019 to 1.2 million rides in 2023. MATBUS is proposing to make a portion of the previously enacted temporary service changes permanent, she stated, which will allow MATBUS to provide levels of service based on current ridership demands while addressing long-term driver shortages and a decrease in federal funding due to new allocation formulas applied to the Fargo-Moorhead urbanized area. An Informational Meeting was held May 6th at the GTC to gather public comments and input, she said, and ridership data was displayed at the GTC with comment sheets available. As of May 7th, she said, comments were received from 17 people and after receiving public input on the proposed route/service changes, an adjustment was made to the notice. Previously, Saturday service hours were proposed to permanently end at 8:15 p.m., she said, and this was updated to propose that Saturday service will instead end at 10:15 p.m. This service hour change would take place on August 26, 2024, she said, and the proposed change would permanently reduce MATBUS fixed route and MAT paratransit service hours to 6:15 a.m. to 10:15 p.m. Monday through Friday and 7:15 a.m. to 10:15 p.m. on Saturdays. The proposed changes, she stated, include: Route 13, reduced from 30-minute to 60-minute service on Saturdays only; Route 15, reduced from 15-minute to 30-minute service from 6:15 to 9:45 a.m.; Route 32W and Route 36 will be eliminated; and Route 33, reduced from 10-minute service with 7-minute service during peak ridership times to 10-minute service all day.

Assistant Transit Director Cole Swingen said there have been challenges since the pandemic including a significant decrease in the ridership base and also driver shortages and with that frequency and service have been reduced to consistently provide reliable service on a day-to-day basis. That with the decrease in federal funding has made the need to make the changes permanent to better utilize drivers and vehicles available, he said, and by permanently implementing the proposed changes, in 2025 the City of Fargo’s Transit Department will reduce driver service costs by approximately $306,468.00. He said the majority of public comments received were in regards to Saturday service and from the feedback it was decided to extend service to 10:15 p.m.

Commissioner Kolpack said the priority here is to ensure the most access to all routes for the most citizens possible, especially with driver shortages. She said these savings will help increase wages of bus drivers to help with recruitment and retention, which is another important component of this change.
In response to a question from Commissioner Strand asking about safety measures on the buses, Mr. Swingen said there have been a number of issues including people coming into facilities and vehicles threatening staff and drivers. Measures such as driver barriers have been put in place; however, instances of verbal harassment and physical violence occur. Security is on site at the Ground Transportation Center, he said, and they continue to look for ways to protect staff, drivers and riders.

Commissioner Strand moved the Permanent Route and Service Changes for MATBUS be approved as presented.

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

Items from the FAHR Staff Meeting Approved (Moved from the Consent Agenda):
Commissioner Piepkorn said this report is good information for the whole Commission so he requested the item be moved from the Consent Agenda to the Regular Agenda.

Finance Director Susan Thompson said the items are a summary from the FAHR (Finance, Administration and Human Resources) staff meeting. She said meetings are bi-weekly and three have been held to date. Rather than numerous individual items, she said, it is packaged as a report indicating an item has been reviewed. A cover sheet is included, she said, as well as information on whether FAHR has endorsed or suggested different funding. She said sales tax and monthly financials will be done on an alternating basis so this report has sales tax and there are some other budget adjustments and personnel requests listed.

In response to a question from Mayor Mahoney asking why the sales tax numbers are down, Ms. Thompson said it is due to the February deadline for filers being the last day of March, which was a Sunday, and the deadline was moved to April 1, so those that pay on that day had those monies fall into the next month.

In response to a question from Commissioner Preston asking how the Finance Committee can be re-established at the Commission level to more clearly understand what the FAHR Committee is all about, Ms. Thompson said that needs to be formalized. She said the second quarter Finance Committee meeting is coming up in two weeks which would be a good time for staff to put forward what they feel it should be and then get input from the Commissioners.
I
n response to a question from Mayor Mahoney asking whether re-establishing the Finance Committee would be a policy change or an Ordinance change, City Attorney Nancy Morris said the Finance Committee was not established by Ordinance so it would be done by motion of this Commission or, if desired, it could be established by Ordinance for the City Commission to meet as a Finance Committee.

Commissioner Kolpack said the former process of these committees that became FAHR was the Position Evaluation Committee and the Finance Committee used to meet with the Mayor and one Commissioner with staff. She said the Position Evaluation Committee had no minutes taken, no notice given, no transparency or insight. She said until recently, the Finance Committee had no notice and while minutes are posted with the agenda, they were not forwarded and there was not detail topic by topic. She said now for the public to have access and insight into the topics with Finance, HR and Admin allows transparency.

Commissioner Preston moved the items submitted from the FAHR staff meeting be approved as presented.

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

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

Resident Comments:
KJ Atkinson and Prairie Johnson (via conference call) spoke about a Gaza ceasefire.

Commissioner Strand moved that the Board adjourn to 5:00 o’clock p.m., Tuesday, May 28, 2024.
Second by Kolpack. All the Commissioners voted aye and the motion was declared carried.

The time at adjournment was 6:16 o’clock p.m.