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Fargo City Commission - October 28, 2024

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 28, 2024.
The Commissioners present or absent were as shown following:
Present: Kolpack, Piepkorn, Strand, Turnberg, Mahoney.
Absent: None.
Mayor Mahoney presiding.

Mayor Mahoney announced the City Commission will retire into Executive Session in the Red River Room for the purpose of attorney consultation regarding the pending litigation titled Liquid Hospitality, LLC d/b/a Windbreak Saloon vs. Board of City Commissioners of the City of Fargo, File No: 09-2024-CV-01023. Discussing these matters in an open meeting will have a negative fiscal effect on the bargaining and or litigation position of the City of Fargo. An Executive Session for this legal matter is authorized pursuant to North Dakota Century Code §44-04-19.1
subsections 2, 5 and 9.
Commissioner Kolpack moved the Commissioners meet in Executive Session in the Red River Room as authorized by NDCC, Section 44-04-19.1 subsections 2, 5 and 9 to discuss said matter.
Second by Piepkorn. All the Commissioners voted aye and the motion was declared carried.

At 4:07 o’clock p.m. the Board moved to the Red River Room to discuss the litigation matter in Executive Session.
Members present were: Kolpack, Piepkorn, Strand, Turnberg, Mahoney.

The Executive Session closed at 4:52 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: The Library November movie series will feature four disaster films from the 1970s; Fargo tops a new analysis of America’s fastest-growing cities by Realtor.com; Lument Securities has facilitated the closing of $21.5 million in tax-exempt and taxable bonds to fund the construction and long-term financing of Lashkowitz Riverfront, a 110-unit, affordable multifamily apartment community; on Tuesday, City Hall will host the Impact Fargo event organized by the Fargo Youth Initiative; and a video of the grand opening of Fire Station No. 8 was shown.

Order of Agenda Approved:
Commissioner Kolpack moved the Order of the Agenda be approved.
Second by Piepkorn. All the Commissioners voted aye and the motion was declared carried.

Minutes Approved:
Commissioner Strand moved that the Minutes of the Regular Meeting of the Board held on October 14, 2024 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. Receive and file an Ordinance Amending Article 11-09, of Chapter 11, of the Fargo Municipal Code, Relating to Littering of Public Places by Contractors.
2. Site Authorizations for Games of Chance:
a. Homeward Animal Shelter, Inc. at Speck’s Bar.
b. North Dakota Horse Park Foundation at Dogleg North.
3. Applications for Games of Chance:
a. Shiloh Masonic Lodge #1 for a raffle on 4/26/25.
b. Sts. Anne and Joachim Catholic Church for bingo and a raffle on 11/10/24.
c. The Village Family Service Center for a raffle board on 11/8/24.
4. Agreement Regarding Deferral of Special Assessments with Sanford North.
5. Reimbursement to Property Owner at 149 South Woodcrest Drive North in the amount of $8,160.00 for irrigation repairs due to Project No. FM-19-C1.
6. Modifications to the Sanitary Sewer Service Participation Policy.
7. Maintenance Certification for Urban Federal Aid Projects for NDDOT.
8. Negative Final Balancing Change Order No. 2 in the amount of -$26,927.00 for Project No. SL-22-A1.
9. Change Order No. 1 in the amount of $0.00 for Project No. FM-24-A1.
10. Declare protest insufficient for Improvement District No. FP-19-A4.
11. Amendment No. 3 with Houston Engineering in the amount of $501,000.00 for Improvement District No. FP-19-A0.
12. Access Easement (Storm Sewer, Sanitary Sewer and Water Main) and Access Easement (Storm Sewer Easement) with Southeast Cass Water Resource District for Improvement District No. BN-24-B1.
13. Change Order No. 2 in the amount of $118,363.00 for Improvement District No. BN-23-F1.
14. Change Order No. 1 in the amount of $27,267.50 and associated time extension for Improvement District No. BN-24-A1.
15. Change Order No. 3 in the amount of $11,945.13 for Improvement District No. BR-24-F1.
16. Negative Final Balancing Change Order No. 2 in the amount of -$51,131.52 for Improvement District No. PR-24-E1.
17. Negative Final Balancing Change Order No. 2 in the amount of -$6,170.00 for Improvement District No. TN-23-A2.
18. Bid award to Municipal Pipe Tool Company in the amount of $1,819,337.31 for Improvement District No. UR-24-F1.
19. Contract and bond for Improvement District No. BN-24-B1.
20. Contracts with Valley Green and All Terrain for snow and ice removal services (RFP24314).
21. Bid award to Gast Construction in the amount of $62,150.00 for the North Parking Deck Repairs Assessment (RFQ24351).
22. Items from the FAHR Meeting:
a. Receive and file General Fund - Budget to Actual through 9/30/24.
b. Receive and file General Fund -2024 Year End Projections as of September 2024.
c. Amendment No. 3 to Agreement between City of Fargo and First Transit.
d. Purchasing One Card Master Contract with JPMorgan Chase Bank, N.A. for PCard services.
23. Change Order No. 21 in the amount of $2,011.00 for Fire Station No. 8 (general construction contract).
24. Change Order No. 22 in the amount of $1,124.00 for Fire Station No. 8 (general construction contract).
25. Change Order No. 23 in the amount of $1,890.00 for Fire Station No. 8 (general construction contract).
26. Contract Agreement for Services with Southeast Human Service Center.
27. Contract Agreement for Services with Liz Hannig.
28. Contract Agreement for Services with Center Point Tactical, LLC.
29. Amendment to Agreement with Tyler Technologies, Inc. (EX25013).
30. Resolution approving Plat of Timber Parkway Eleventh Addition (Attachment “A”).
31. Direct the City Attorney’s Office to draft revisions to Fargo Municipal Code Section 8-0305.
32. Resolution Authorizing the Issuance and Sale of $15,000,000 City of Fargo Sales Tax and Water Revenue Bond and ND State Revolving Fund Program Loan Agreement with the ND Public Finance Authority for the Advanced Metering Infrastructure (AMI) Project (Project No. WA2402)(Attachment “B”).
33. Bills in the amount of $20,842,594.67.
Second by Turnberg. On call of the roll Commissioners Kolpack, Turnberg, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none v nay, the motion was declared carried.

Appropriate Staff Directed to Prepare a Winter Warming Plan:
Commissioner Strand said knowing winter is coming, it is time to do what it takes to save lives.
Assistant City Administrator Brenda Derrig said staff is seeking direction; there are additional American Rescue Plan Act (ARPA) funds remaining due to a grant received last year that could support winter warming.
Commissioner Piepkorn said the homeless are now dispersed all along the river corridor and even in people’s back yards. Fargo taxpayers are paying for hospitality for vagrants coming from all over, he said, and residents are tired of it. Turning Downtown into a craphole is not what the Renaissance Zone is designed for and after spending millions, he said, it is being destroyed. This is impacting customers who are afraid to come Downtown, businesses are leaving and closing, he said, and eventually property values will decrease and taxes will go up. Property taxes will become so difficult for senior citizens that they will become homeless, he said, which will be on the Commissioners for destroying Downtown. He said Police are not responding and the City needs to be cleaned up. He said he intended to take a walk to see what it looks like along the river; however, changed his mind due to being afraid.
Commissioner Kolpack said every community in the country is dealing with homeless issues due to an increase in evictions and coming off the pandemic. Leaders work on the issue daily, and there is now a process in place to address people being in places they are not supposed to be in. She said both the Mobile Outreach Team and the Downtown Community Partnership are active and recognize it is a complex issue. She said it will take time and intention to continue to find solutions.
Commissioner Turnberg said personally she does not feel the Ordinance and Resolution are working. The number of tents along the river is mind blowing, she said, and she even saw one fenced off displaying a no trespassing sign.
Mayor Mahoney said police respond when asked and progress is being made with the camp sites. Last year, he said, 40 to 50 people were warmed per night and there has been a need. Homelessness is a complex issue and all ideas need to be put together, he said, and downtown is a jewel that must be supported. Reports say crime is down with progress being made, he said; however, work must continue and if Commissioners see a problem, they can contact staff.
Commissioner Strand agreed the citizenry is concerned; however, is an option letting people freeze to death? What is making people more homeless than other causes is they are being evicted, he said, and a space needs to be provided. Fargo has learned and embraced handling flooding and understands what it takes to save a city, investments or people, he said, and 40 below is the same thing for the people outside. There are people incredibly vulnerable and at risk and are not there due to their choosing, he said. He welcomes guidance from staff and administration about how to avoid deaths or catastrophe, just as is done with flooding. There are long term solutions with the Bloomberg Institute and others, and the Downtown Engagement Center’s future and programs, he said; however, the people here must be protected now.
Commissioner Piepkorn suggested taxpayers research Bloomberg Institute and who is behind that agenda. This obligates the taxpayers of Fargo to provide social services for the entire region without reimbursement, he said.
Commissioner Strand said he would question whether it is true that people are being sent from other areas to Fargo to be taken care of.
Mayor Mahoney said the County and State could help out, often it is the City that carries the burden of social services. He welcomes a look at other ways to fund this; however, the reality is that this year there is funding for warming. Solutions will continue to be looked for, he said, and the Bloomberg Institute has consulting services and is helping by providing studies and comparing solutions across the nation.
Commissioner Piepkorn said the City should not take advice from Bloomberg. He said the Downtown Engagement Center is destroying Downtown and instead of building a Performing Arts Center, now there is a craphole.
Mayor Mahoney said he would ask Commissioner Piepkorn to not denigrate the City. Many who come to Fargo think it is fantastic, he said.
Commissioner Strand said rather than just point at concerns, what are solutions? How, as a team, can Commissioners work with each other and the community to solve the issues, he asked. He said he believes more law enforcement is needed Downtown.
Commissioner Strand moved appropriate staff be directed to prepare a winter warming plan and provide an update at a future City Commission meeting.

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

Annexation of 243.16 Acres, More or Less, as Part of the West Half of Section 4, Township 138 North, Range 49 West of the Fifth Principal Meridian, Cass County, North Dakota Approved: No Protests Received:
A Notice was published in the official newspaper for the City of Fargo, as required by law, on October 16, 2024, stating that a petition had been filed with the City of Fargo for annexation of 243.16 acres, more or less, as part of the West Half of Section 4, Township 138 North, Range 49 West of the Fifth Principal Meridian, Cass County, North Dakota. No protests have been filed with the City Auditor’s Office after publication of the Notice.
The Board determined that no person is present to protest or offer objection to the annexation petition.
Current Planning Coordinator Donald Kress said the petition for annexation was brought forward by the City, the majority land owner. He said Southeast Cass Water Resource District owns about 14 acres of the annexed area and has agreed to participate in the annexation. There are no residences or businesses in the annexation area, he said, and the land is within Fargo’s extra-territorial jurisdiction. Street access to the property is from 64th Avenue South and the Southwest Pond regional stormwater detention facility occupies a portion of the annexation area, he stated. The area is zoned agricultural, he said, and no zone change is proposed and no other development is proposed at this time. He said owner-initiated annexations are done by Ordinance and once the Ordinance and a map of the annexed area are filed and recorded with the County, the annexation becomes effective.
Commissioner Piepkorn moved there is insufficient protest to the proposed annexation and, therefore, said land shall become a part of the City in accordance with NDCC §40-51.2-07 and direct staff to file and record with the Cass County Recorder a copy of the Annexation Plat and an accurate map of the annexed area.

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

First Reading of an Ordinance Annexing a Certain Parcel of Land Lying in a Portion of the West Half of Section 4, Township 138 North, Range 49 West of the 5th Principal Meridian in Cass County, North Dakota:
Commissioner Piepkorn moved the requirement relating to receipt of the Ordinance by the Commission one week prior to first reading be waived and moved the Ordinance Annexing a Certain Parcel of Land Lying in a Portion of the West Half of Section 4, Township 138 North, Range 49 West of the 5th Principal Meridian in Cass County, North Dakota be placed on first reading.

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

Parcels of Land in Southwest Fargo Mission Second Addition Rezoned (4475 40th Avenue South):
At a Hearing held on October 1, 2024 the Fargo Planning Commission recommended approval of a change in zoning from GC, General Commercial with a C-O, Conditional Overlay, to MR-3, Multi-Dwelling Residential with a C-O, Conditional Overlay.
The City Auditor's Office published a Notice of Hearing stating this is the time and date set for said Hearing at which time all interested persons could appear and would be heard.
Current Planning Coordinator Donald Kress said the existing overlay emphasized commercial development and the new overlay will emphasize residential development.
Commissioner Piepkorn 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 Fargo Growth Plan 2024, 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 Piepkorn, Kolpack, Turnberg, 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 Piepkorn 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 Piepkorn, Kolpack, Turnberg, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Application for an Ownership Change of the Alcoholic Beverage License for Vault Partners LLP d/b/a Fort Noks Continued to November 12, 2024:
A Hearing had been set for this day and hour on the application filed by Vault Partners LLP d/b/a Fort Noks for a Class "Z" Alcoholic Beverage License at 52 Broadway North, notice of which had been duly published in the official newspaper for the City of Fargo.
Mayor Mahoney said he would like the applications presented for the two different owners separated, as one owner had no issues and the other had some.
City Auditor Steve Sprague said the application was to add Cole Jirik and Anthony LaVoy as co-owners of the license. He said the license is a Class “Z” which is a full alcohol license which allows a bar and does not require food sales. In 2021 the license was transferred to Vault Partners, LLP, he said, and at that time there were three owners. This application removes two partners, he said, and one owner, Mr. LaVoy, remains and a new owner, Mr. Jirik is added. He said the Liquor Control Board voted to approve both applicants, the applications were not split as the Mayor is now requesting.
In response to a question from Commissioner Piepkorn asking if splitting the applications is appropriate, City Attorney Nancy Morris said there are two applicants and both had background checks completed, so it would be appropriate to consider each separately.
Commissioner Piepkorn said the Liquor Control approved the application 4-0 which he believes is due to the applicants having been a good ownership group. He said the Chief did bring up his concerns and one violation was a misdemeanor reckless driving from 15 years ago, which would be different had it been a felony.
Mr. Sprague said during the background investigation of the applicants, no significant concerns were discovered for Mr. Jirik and he has an approval recommendation.
Commissioner Piepkorn moved the application for Cole Jirik be approved.

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

In response to a question from Mayor Mahoney asking how the Ordinance addresses application forms not being filled out correctly, City Attorney Nancy Morris said a Resolution was adopted in 2018 establishing license application qualifications that provides a recommendation from the Police Chief. She said the Resolution provides that any false statement in the application shall result in an automatic refusal or immediate withdrawal of prior issuance.
Police Chief David Zibolski said applicants are asked to complete a questionnaire about their background and a background waiver so their suitability can be evaluated pursuant to City Ordinance. He said Mr. LaVoy answered “no” to question No. 3, failing to disclose his misdemeanor arrest in 2010 in Minnesota for disorderly conduct. He also failed to disclose his 2015 arrest for DUI in question No. 4 regarding alcohol-related offenses. It was reduced, he said; however, that does not negate the fact that he received an alcohol related citation and falsely answered the question. Being arrested twice in the last 14 years is something one would not normally forget or neglect to report, he said, and based on the guidelines, his recommendation was for denial.
Commissioner Piepkorn said the Liquor Control Board looked at the length of time passed, that they were misdemeanors and that they have been long-time owners of this bar. People have made mistakes in their life and have been given another chance, he said, and these have been responsible holders of a liquor license, which is why the Liquor Control Board passed the application 4-0.
Mayor Mahoney said the problem is that he was dishonest in the form he filled out and Mr. LaVoy was given an opportunity to redo the application and to come back, which he refused.
City Auditor Steve Sprague said when they met today, Mr. LaVoy was given options to either withdraw his name, to file a new application or to go ahead with the application as submitted. He said Mr. LaVoy pointed out to him that in 2021 he had disclosed the things being pointed out now and the application was approved at that time. He also said he had his office staff fill out the application, he said, and was told he was responsible for the information on there, as he had signed it. Mr. LaVoy chose to go ahead with the application, he said.
In response to a question from Commissioner Strand asking whether only one partner can be approved if the application is for a partnership, Vault Partners, LLP, Mayor Mahoney said the owners are listed and an owner can be rejected, then the other part of the partnership owns it.
Ms. Morris said if there is more than 5% ownership, the ownership must be approved in total so there would be a concern there.
Commissioner Strand said he would like to see this come back with a solution from staff. This is a dilemma, he stated.
Commissioner Piepkorn moved the Hearing be continued to 5:15 p.m. on Tuesday, November 12, 2024.

Second by Strand. On call of the roll Commissioners Piepkorn, Strand, Turnberg, Kolpack 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:
Commissioner Kolpack moved the applications be approved.
a. Barret and Jennifer Wood, 2308 34 1/2 Avenue South (5 years).
b. Katie Youngbauer and Kevin Roach, 1726 Whitestone Circle South (5 years).
c. Eloise Haaland Life Estate, 733 Oak Street North (5 years).
d. Drummond Family Revocable Living Trust ET AL, 1210 Elm Street North (5 years).
e. Drummond Family Revocable Living Trust ET AL, 1210 Elm Street North (5 years).
f. Derek and Lisa Johnson, 1326 4th Street North (5 years).
g. Derek and Lisa Johnson, 1326 4th Street North (5 years).
h. Derek and Lisa Johnson, 1326 4th Street North (5 years).
i. Karen E. Balsbaugh Living Trust, 3208 Elm Street North (5 years).
j. Karen E. Balsbaugh Living Trust, 3208 Elm Street North (5 years).
k. Isaiah and Jennifer Bodensteiner, 3010 7th Street North (5 years).
l. Jason Schenheit and Elspeth Helblad, 1114 8th Street North (5 years).
m. Kari Bollingberg, 1246 3rd Street North (5 years).
Second by Strand. On call of the roll Commissioners Kolpack, Strand, Piepkorn, Turnberg and Mahoney voted aye.
No Commissioner 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:
Tracey Wilkie spoke about President Biden’s first ever apology for the Native American Boarding Schools and encouraged the City to continue to work with the Native American population.

The meeting adjourned at 5:50 o’clock p.m.