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Board of City Commissioners - July 27, 2020 Minutes

The Regular Meeting of the Board of City Commissioners of the City of Fargo, North Dakota, was held in the City Commission Room at City Hall at 5:00 o'clock p.m., Monday, July 27, 2020.
The Commissioners present or absent were as shown following:
Present: Gehrig, Piepkorn, Preston, Strand, Mahoney.
Absent: None.
Mayor Mahoney presiding.

The Mayor read a message with the following information: The Commission on Fire Accreditation International is conducting a site visit at the Fargo Fire Department this week; to date in 2020, the number of building permits is at 973, compared to 996 in 2019 and permit valuations are up 206 percent; the all ages Summer Reading Program at the Library continues through August 15th, upcoming events include Grab & Go Crafts for teens featuring dreamcatchers, a Cookbook Club online event for adults, the Reading Rocks! program, a Mars STEM kit to celebrate NASA’s launch of the rover Perseverance and a Take and Make Craft for adults featuring a rainbow wall hanging kit.

Order of Agenda Approved:
Commissioner Gehrig moved the Order of the Agenda be approved moving Item Nos. “6” and “25” from the Consent Agenda to the Regular Agenda and adding an extra item to the end of the Consent Agenda to consider a Purchase Agreement with Dabbert Custom Homes LLC for the purchase of permanent right of way in association with Improvement District No. BN-21-A1.

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

Minutes Approved:
Commissioner Piepkorn moved that the Minutes of the Regular Meeting of the Board held on July 13, 2020 be approved as read.

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

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

1. 2nd reading and final adoption of the following Ordinances; 1st reading, 7/13/20:
a. Amending Section 13-1101 and Repealing Sections 13-1102, 13-1103,
13 1104, 13-1105, 13-1106, 13-1107, 13-1108 and 13-1109 of Article 13-11 of Chapter 13 of the Fargo Municipal Code Relating to Child Care Centers.
b. Rezoning Certain Parcels of Land Lying in Truesdell’s Addition to the City of Fargo, Cass County, North Dakota.
c. Rezoning Certain Parcels of Land Lying in Craigs Oak Grove Second Addition to the City of Fargo, Cass County, North Dakota

2. Findings of Fact and Order, and Notice for property at 717 3rd Avenue North.
3. Site Authorization for Metro Sports Foundation at Brewtus Clubhouse.
4. Applications for Games of Chance:
a. Haiti Eye Mission for a raffle on 10/30/20.
b. FM Walleyes Unlimited, Inc. for a raffle on 12/3/20.
c. Holy Spirit Catholic Church for bingo, raffle and calendar raffle from 9/7/20 to 10/11/20.
d. YMCA of Cass and Clay Counties for a raffle on 8/4/20.
e. Nativity Knights of Columbus for a raffle on 10/3/20.
f. St. John Paul II Catholic Schools for a raffle from 9/1/20 to 4/24/21.

5. Pledged securities as of 6/30/20.
6. Receive and file General Fund-Budget to Actual through June 2020 (unaudited) (moved to the Regular Agenda).
7. Use of on-street parking stalls as outdoor dining areas in the Central Business District and the associated Agreement with the Downtown Community Partnership.
8. Right of Way Use Agreement with Great Plains Kesler South Holdings, LLC and Great Plains Kesler North Holdings, LLC.
9. Bid advertisement for Project Nos. FM-16-A and HD-19-A.
10. Change Order No. 2 for an increase of $56,000.00 and time extension to 8/15/20 for Project No. FM-14-13.
11. Change Order No. 1 for an increase of $115,290.00 for Project No. SR-20-A1.
12. State Water Commission requests for Cost Reimbursement for FM Diversion Flood Project Costs:
a. Costs totaling $1,650,055.35.
b. Costs totaling $15,060.94.

13. Mutual Aid Agreement - Memorandum of Understanding with City of West Fargo, ND Fire Department.
14. Community Faculty Contract (Hospital/Clinic with Single Contract) with the University of North Dakota School of Medicine and Health Sciences for medical school student training in the clinic.
15. Financial Award from the ND Department of Commerce/DCS for the ND Homeless Grant.
16. Notice of Grant Award with the ND Department of Health for Water Pollution-EPA Block (CFDA #66.605).
17. Agreement for Services with Center Point Tactical LLC.
18. Agreement for Services with Megan Nies.
19. Bid award to Strata Corporation in the amount of $70,370.00 for conduit/fiber placement project (RFV20122).
20. Bid awards to Midwest Tape, Ingram and Gale for Library materials (RFP20115).
21. Resolution approving Plat of Epic Gateway Addition (Attachment “A”).
22. Resolution Approving Written Agreement for the HomeField 3 Activity Home Investment Partnership Program Funds and Owner Agreement with HomeField 3, LLLP for new construction at 4225 28th Avenue South (HOME Grant Funds)(Attachment “B”).
23. Interlocal Agreement with Cass County to provide $49,274.00 in Edward Byrne Memorial Justice Assistance Grant (JAG) funds (CFDA #16.738).
24. Direct the City Attorney to work with the Police Department to draft amendments to the City Ordinance pertaining to hotel registries.
25. Direct the City Attorney to work with the Police Department to draft a City Ordinance related to fighting (moved to the Regular Agenda).
26. Bid award to Swanston Equipment in the amount of $51,075.00 for the purchase of three loader mounted v-plows.
27. Extension of fare free transit services (fixed route and paratransit) through 12/31/20.
28. Change Orders for the Ground Transportation Center Remodel Project:
a. No. 1 for an increase of $13,850.46 for the electrical contract.
b. No. 2 for an increase of $933.55 for the mechanical contract.
c. No. 2 for an increase of $187,843.71 for the general contract.

29.Purchase and Installation of a Geonet Geocomposite Layer System with Northwest Linings and Geotextile Products in the amount of $35,944.00 in conjunction with Project No. SW19-01 Cell 19.
30. Change Order No. 1 for an increase of $22,584.65 for Project No. WW1904.
31. Change Order No. 3 for an increase of $21,886.27 for Project No. WA1951.
32. Task Order No. 10 with Apex Engineering in the amount of $324,820.00 for Project No. WA2055.
33. Task Order No. 33 with AE2S in the amount of $309,600.00 for the design and bidding of a pumping and metering system for regional water service.
34. Bid advertisements for Project Nos. WA1860 and WA1863.
35. Bid award to Hawkins, Inc. for Water Treatment Plant chemicals for the remainder of 2020 (AFB20127).
36. Contracts and bonds for Project Nos. PR-20-B1 and SL-20-A1.
37. Bills in the amount of $14,093,713.43.

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

Contract Amendment No. 6 for Improvement District No. PN-19-A0 Approved:
The Board received a communication from the Public Works Projects Evaluation Committee stating Contract Amendment No. 6 is a change made to the final design of the project changing from a 5-lane roadway to a 3-lane roadway.
Commissioner Strand moved Contract Amendment No. 6 with KLJ in the amount of $87,416.00 for Improvement District No. PN-19-A0 be approved.

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

Negative Final Balancing Change Order No. 6 for Improvement District No. BN-19-J1 Approved:
Commissioner Strand moved Negative Final Balancing Change Order No. 6 in the amount of -$9,232.78 for Improvement District No. BN-19-J1 be approved.

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

P.C. Concrete Alley Paving and Incidentals Improvement District No. AN-20-B1: Protests Received and Declared Insufficient:
The Statutory Resolution of Necessity for the construction of P.C. Concrete Alley Paving and Incidentals Improvement District No. AN-20-B1 in the City of Fargo, North Dakota, was duly published in the official newspaper for the City of Fargo, North Dakota on June 24 July 1, 2020 and protests representing 21 percent of the legal protest area have been received and filed in the office of the City Auditor within the legal protest period.
Commissioner Strand moved the protests be received and filed and declared insufficient.

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

Bids Received for P.C. Concrete Alley Paving and Incidentals Improvement District No. AN-20-B1:
The bids for P.C. Concrete Alley Paving and Incidentals Improvement District No. AN-20-B1 in the City of Fargo, North Dakota were opened at 11:30 o'clock a.m., July 22, 2020 and the bids were found to be as follows:

Northern Improvement Company Fargo, ND
Bid: $172,586.00

Dakota Underground Company Fargo, ND
Bid: $178,080.00

Dirt Dynamics, LLC Fargo, ND
Bid: $210,376.00

Contract for P.C. Concrete Alley Paving and Incidentals Improvement District No. AN-20-B1 Awarded to Northern Improvement Company in the Amount of $172,586.00:
Commissioner Strand offered the following Resolution and moved its adoption:
WHEREAS, The City Engineer has prepared and filed a detailed statement of the estimated costs of P.C. Concrete Alley Paving and Incidentals Improvement District No. AN-20-B1; and
WHEREAS, The Board of City Commissioners of the City of Fargo has considered the bids received July 22, 2020 for P.C. Concrete Alley Paving and Incidentals Improvement District No. AN-20-B1 in the City of Fargo, North Dakota; and
WHEREAS, The City Engineer's tabulation of the bids received for P.C. Concrete Alley Paving and Incidentals Improvement District No. AN-20-B1 shows the bid of Northern Improvement Company of Fargo, North Dakota, in the sum of $172,586.00 to be the lowest and best bid received.
NOW, THEREFORE, BE IT RESOLVED, That the Board of City Commissioners finds and declares the bid received from Northern Improvement Company in the sum of $172,586.00 is the lowest and best bid received.
BE IT FURTHER RESOLVED, That the contract for P.C. Concrete Alley Paving and Incidentals Improvement District No. AN-20-B1 in the City of Fargo, North Dakota, be and the same is hereby awarded to Northern Improvement Company for the sum of $172,586.00, subject to the supervision, inspection and approval of the City Engineer, and in accordance with the Plans and Specifications filed in the office of the City Auditor.

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

Drain 53 Improvement Project No. 2019-01; SE Cass WRD Improvement District No. FM-20-C:
Commissioner Strand moved the following action be taken in connection with Drain 53 Improvement Project No. 2019-01; SE Cass WRD Improvement District No. FM-20-C:

Adopt Resolution Creating Drain 53 Improvement Project No. 2019-01; SE Cass WRD Improvement District No. FM-20-C:
WHEREAS, The Board of City Commissioners of the City of Fargo, North Dakota, deems it expedient that Drain 53 Improvement Project No. 2019-01; SE Cass WRD Improvement District No. FM-20-C in the City of Fargo, North Dakota, be created

Along Cass County Drain 53 between 64th Avenue South and future 74th Avenue South.

COMPRISING:
All of the platted and unplatted land in the north half of Section 11, T138N, R49W.

All platted in Golden Valley 1st Addition.

All platted in Madelyn’s Meadows First Addition.

All platted in Madelyn’s Meadows Second Addition.

All platted in Madelyn’s Meadows Third Addition.

All the foregoing located in City of Fargo, Cass County, North Dakota.

All of the unplatted land in the north half of the southeast quarter of Section 11, T138N, R49W.

All of the unplatted land in the north half of the south half of the southeast quarter of Section 11, T138N, R49W.

All of the foregoing located in the City of Fargo ET, Cass County, North Dakota.

NOW, THEREFORE, BE IT RESOLVED, That Drain 53 Improvement Project No. 2019-01; SE Cass WRD Improvement District No. FM-20-C in the City of Fargo, North Dakota, be and the same is hereby created.

Request Report and Estimate of Cost from the City Engineer for Drain 53 Improvement Project No. 2019-01; SE Cass WRD Improvement District No. FM-20-C:
Direct City Engineer to report as to the general nature, purpose and feasibility relative to the construction of Drain 53 Improvement Project No. 2019-01; SE Cass WRD Improvement District No. FM-20-C in the City of Fargo, North Dakota; as well as an estimate of the approximate cost of said construction. (The Engineer's estimate of cost is $1,598,511.19.)

Order Plans and Specifications for Drain 53 Improvement Project No. 2019-01; SE Cass WRD Improvement District No. FM-20-C:
Direct City Engineer to prepare Plans and Specifications for the construction of Drain 53 Improvement Project No. 2019-01; SE Cass WRD Improvement District No. FM-20-C in the City of Fargo, North Dakota.

Adopt Resolution Approving Plans and Specifications and Engineer's Report for Drain 53 Improvement Project No. 2019-01; SE Cass WRD Improvement District No. FM-20-C:
WHEREAS, The Board of City Commissioners of the City of Fargo, North Dakota, has created Drain 53 Improvement Project No. 2019-01; SE Cass WRD Improvement District No. FM-20-C in the City of Fargo, North Dakota, as required by law; and
WHEREAS, Plans and Specifications and the Engineer's Report prepared by the City Engineer, have been considered.
NOW, THEREFORE, BE IT RESOLVED, That the Plans and Specifications and Engineer's Report for the construction of Drain 53 Improvement Project No. 2019-01; SE Cass WRD Improvement District No. FM-20-C in the City of Fargo, North Dakota, be and the same are hereby approved and ordered filed in the Office of the City Auditor.

Adopt Resolution Declaring Drain 53 Improvement Project No. 2019-01; SE Cass WRD Improvement District No. FM-20-C Necessary:
BE IT RESOLVED BY THE BOARD OF CITY COMMISSIONERS OF THE CITY OF FARGO:
That it be and is hereby declared necessary to construct Drain 53 Improvement Project No. 2019-01; SE Cass WRD Improvement District
No. FM-20-C in the City of Fargo, North Dakota, according to the Engineer’s Report for this district and the Plans and Specifications approved by the Board of City Commissioners of the City of Fargo, North Dakota, filed in the Office of the City Auditor, and open for public inspection. A map of the district is attached hereto and incorporated as if fully set forth herein.
That a portion of said Drain 53 Improvement Project No. 2019-01; SE Cass WRD Improvement District No. FM-20-C is to be paid from State and local funds, and approximately 42% is to be assessed against the benefited property in amounts proportionate to and not exceeding the benefits to be derived by them respectively from said improvement.
Protests against the proposed Drain 53 Improvement Project No. 2019-01; SE Cass WRD Improvement District No. FM-20-C must be in writing and must be filed with the City Auditor's Office within 30 days after the first publication of this Resolution.
BE IT FURTHER RESOLVED, That the City Auditor's Office is hereby instructed to publish this Resolution, as required by law.

Direct City Auditor's Office to Call for Bids for Drain 53 Improvement Project No. 2019-01; SE Cass WRD Improvement District No. FM-20-C:
Direct City Auditor's Office to publish a Notice, as required by law, calling for bids for the construction of SE Cass WRD Improvement District No. FM-20-C in the City of Fargo, North Dakota.

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

Deputy Chief Ross Renner Appointed Interim Police Chief:
The Board received a communication from Mayor Tim Mahoney, City Administrator Bruce Grubb and Assistant City Administrator Michael Redlinger stating Police Chief David Todd has announced his retirement effective the close of business on July 31, 2020. In preparation for a new Police Chief, they said, the City Commission approved the formation of a Police Chief Selection Committee. They said a tentative schedule for the selection process was presented July 13, 2020 listing potential start dates for the new Police Chief ranging from late August to early October 2020. In the interim period, they said, they would like to designate an Interim Police Chief and their recommendation is that Deputy Chief Ross Renner be named to serve as Interim Chief through the conclusion of the selection process. Deputy Chief Renner has been employed with the Fargo Police Department since September 1997, has served as a Deputy Chief since January 2016, they said, and currently supervises the Field Services Division. They stated he is not a candidate for the Police Chief position.
Commissioner Piepkorn moved Deputy Chief Ross Renner be appointed as Interim Police Chief effective the close of business on July 31, 2020.

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

Request for Tax Increment Financing for a Project Located Southeast of 6th Avenue North and Oak Street Referred to Appropriate Staff for Review:
The Board received a communication from Director of Strategic Planning and Research Jim Gilmour stating that the City has received a request for Tax Increment Financing (TIF) for a proposed project to be located southeast of 6th Avenue North and Oak Street. He said the block is mostly vacant, except for a four-unit apartment building and a single-family rental house that are occupied; otherwise, three vacant houses are in poor condition and not suitable to occupy. He said two houses and a small apartment building were demolished about four years ago and that land has remained vacant. The proposed project would include demolishing the existing buildings, he said, and preparing the site for redevelopment, which would include the construction of a building with about 130 housing units including 14 condominiums on the top floor. The site has blighted conditions, there is a need for infrastructure and the removal of debris is needed prior to redevelopment, he said. He said the City’s TIF policy calls for the City Commission to review the request to determine if staff should proceed to work with the developer on a renewal plan, and then forward an application to the City financial advisers to review. He said the site has many advantages for redevelopment, including great views of the river; however, it will be difficult to develop due to poor soil that needs to be removed and a need for flood protection, which is costly, in addition to brining utilities to the site and the first time there was interest in redevelopment was about 17 years ago; however, that developer and others that have followed were never able to put together the financing. He said Jesse Craig is the developer who has been working on this site for the past five years and he has acquired some additional properties to make it easier to get utilities.

In response to a question from Commissioner Gehrig asking if this development is in the Renaissance Zone (RZ) and if this project is also going to have a RZ exemption, and would the entire project be eligible for RZ, Mr. Gilmour said the condominiums would qualify for the RZ exemption and the City Commission would have to decide whether to approve that or not.

Commissioner Gehrig said this property will already get an exemption of some kind and he does not see why the TIF is needed. He said five years is a good amount of time and the City put the RZ on this location is an attempt to get this area developed; therefore, he does not see a reason why a TIF is also needed.

Jesse Craig, Craig Development, said the RZ would probably come into play for the condo owners, not for the entire site. He said the TIF is set-up for this project when considering the flood protection that needs to take place for any new development. He said he cannot put anything other than multi-family on it due to the fact that he cannot cover $300,000.00 for a new levee on four or six townhomes. He said part of the requirement with this project is to put a cul de sac on the end of Oak Street as well as new sidewalks. He said along with the levee soil, 16 feet of rubble from landscaping companies has to be removed and 5 years for a RZ is not going to benefit the property. He said there are many layers to this project and a RZ would not benefit the project; however, a TIF will.

Commissioner Piepkorn said many single-family homes on South Terrace and Oak Street have been lost and ideally the project would be single-family housing and flood protection; however, that is not realistic due to the costs of building a levee. He said it will also help the neighborhood elementary school and something is needed to help repopulate that neighborhood, which is close to Downtown.

Mr. Craig said there was only one owner-occupied home in that neighborhood, which he bought when the sewer collapsed, and he helped move the owner to an assisted living facility. All of the other single-family homes were rentals, he said, and taken down due to the poor condition of foundations. He said he cannot build single-family homes without flood protection.

In response to a question from Commissioner Strand asking how much the TIF could be and for how long, Mr. Gilmour said even with a TIF, the developer is having problems with this project and if a TIF is not approved, the project will most likely go dormant again. He said a TIF might be for 15 years due to the extraordinary costs involved, including poor soil conditions and building a levee and to have a private developer build the levee is better than the City having to take emergency measures during floods.

In response to a question from Commissioner Strand asking about apartment vacancy rates, Mr. Gilmour said the vacancy rate is about 8 percent; however, there are many submarkets and types of apartments and senior housing and it is difficult to predict how this project would affect vacancy rates.

Mr. Craig said there has been some stabilization in vacancy rates and his apartments are below 4 percent. He said the lots in this development have been vacant for a long time and this project will revitalize the neighborhood; however, incentives are needed.

Commissioner Gehrig said any developer has to meet flood protection standards and many developments do not have roads, require soil prepping and utilities need to be brought in. He said to make the argument that a TIF is needed falls on deaf ears and he does not think a TIF is needed.

Commissioner Preston said a TIF incentive is to help developers with infill. She said if everyone is interested in decreasing City service costs and encouraging infill, this is the perfect project, this one fits well and she supports it.

Mr. Gilmour said this will go back to Planning and then to the Tax Exempt Review Committee to determine the correct amount of assistance.

Commissioner Gehrig said he feels the market is saying something, and if it is too expensive to develop this property at this time it is due to the fact that the City has inflated the market with unnatural TIF incentive dollars. He said this property will get developed when the market is ready for it. The City is trying to push and by doing that has made Downtown properties so expensive developers are overpaying for property and then coming to the taxpayer and saying they overpaid and now they need money to develop it. He said the City needs to stop artificially inflating these markets and allow the market to catch up.

Mr. Craig said with interest rates as low as they are and building and labor costs going up, he respectfully disagrees. He said the neighbors are not in protest of it, this project is a catalyst for the neighborhood and for him it is a $25 million investment. He said comps and values will go up and 121 tenants will be able to raise families. It has been a long process, he said, and the neighborhood is supportive and it could be an amazing, one-of-a-kind project.

Commissioner Piepkorn moved appropriate staff be directed to submit the proposal to the City’s financial advisers for review of a project located southeast of 6th Avenue North and Oak Street.

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

Hearing on an Application Filed by PRx Performance for a Payment in Lieu Tax Exemption (PILOT) Continued to August 10, 2020:
A Hearing had been set for this day and hour on an application filed by PRx Performance for a project located at 4125 24th Avenue North, which the applicant will use in the primary operation of an e-commerce business with fitness related products; however, the applicant has requested the Hearing be continued to August 10, 2020.
Commissioner Gehrig moved the Hearing be continued to 5:15 o’clock p.m. on Monday, August 10, 2020.

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

Appeal of the Liquor Control Board Findings of Violations of Fargo Municipal Code 25-1512 (F) by Monte’s Downtown, LLC d/b/a Twist Denied: 30-Day Suspension of Alcohol Sales Delayed 3 Months:
A Hearing had been set for this day and hour to consider an appeal of the Liquor Control Board’s 5/20/20 findings of a violation of Fargo Municipal Code 25-1512 (F) at Monte’s Downtown, LLC d/b/a Twist.
City Auditor Steve Sprague said an independent audit firm verifies food sales for liquor licenses that require food sales. He said a recent audit found that Twist had food sales of 48 percent and alcohol sales of 52 percent, leaving the restaurant in violation of the 50/50 requirement of the Ordinance. In addition, he said, this is Twist’s second violation of the 50/50 requirement. The Liquor Control Board voted to find Twist in violation of a second offense of the food percentage Ordinance, he said, and Twist was given a 30-day suspension of alcohol sales.

Commissioner Piepkorn said the liquor laws need to be followed and the law calls for a 30-day suspension. He said in order for the Liquor Control Board to keep its credibility, the rules have to be followed.

Dan Hurder, owner of Twist, said he is not arguing the numbers and knows he needs to be compliant. After the first audit results, he said, he did implement changes and some were more effective than others and the restaurant did go from 47 percent food to 48 percent. He said the business does about $560,000.00 in sales a year and about $10,000.00 of that amount needs to be food instead of alcohol. He said he knows it is a shortcoming; however, it is not dramatic. Anyone familiar with the business recognizes that Twist is trying to operate as a restaurant, he said; however, the customer shift has been to high priced wines, cocktails and craft beers. He said his plea is financial, if Twist were to serve a 30-day suspension, it be deferred to a time when the business is more viable and able to withstand the suspension. Everyone knows how terrible it has been for restaurants, he said, and Twist closed for half of March and all of April and at present is not even running at 50 percent capacity. He said he was hoping the Board could call April time served and let that be the 30-day suspension. He said now, due to the pandemic, a suspension would likely put him out of business. He said a younger crowd who drink more are coming to his business and the older crowd who would visit for a meal, are not eating out as often. He said he is not looking for special treatment; however, with the current state of the industry he is asking for some consideration. Twist could still be open as a restaurant, he stated; however, the reality is not having a beverage program on top of a food program does not resonate with customers right now.

Commissioner Piepkorn said these same comments were heard last year after the first violation and Twist was still short this year. He said the owner said after the first violation if he had to serve a suspension, Twist would go out of business. Twist pays less for a liquor license than others, he stated; therefore, if Twist is not meeting the requirements, the owner needs to buy a different type of license. He said in order for the Liquor Control Board to keep its credibility, the penalties have to be in place.
Commissioner Piepkorn moved the appeal be denied.
Second by Preston.

In response to a question from Mayor Mahoney asking if the suspension could be delayed, Commissioner Piepkorn said if businesses are not penalized, everyone will want to get the less expensive license and then there is the credibility issue. He said there are rules and the City has to stand by them.

Commissioner Gehrig said he understands this is a bad year and the point resonates more with him this year than last. He said it is not a dramatic amount that Twist is short and from the first offense to the second, the business did move in the right direction. He said he is in favor of a 90-day delay with the penalty when the situation may be more normal as he does not want to see an empty building in Downtown.

Commissioner Gehrig moved to amend the motion to start the 30-day suspension three months from today’s date.

Second by Strand.

In response to a question from Commissioner Preston asking if this would set a precedent in light of the fact that there is another liquor license violation appeal on the agenda tonight, Mr. Sprague said a second failure is different than a first failure. He said for a first failure the penalty is to close one hour early and then review in six months so the business is given time to get back into the right percentages. With the second failure, he said, it is a 30-day period with no alcohol sales. A third failure is subject to license revocation. He said if a date certain could be set with the suspension, he would be okay with that.

Commissioner Strand said these are challenging times for businesses and with the pandemic going on, the formulas for food versus alcohol versus customer base versus inside delivery versus outside delivery, it is all over the place and he does not know how the business can make it. He said Twist is the former site of Monte's Restaurant, which was a longtime fixture Downtown and was a leader in the movement to get more dining establishments Downtown. He said many of the bars and restaurants are having a difficult time due to the pandemic and he did not want this to be another nail in the coffin. He said he hopes the next audit shows 50 percent due to the fact that Twist will probably not get the Commission to support another delayed suspension.

On call of the roll on the original motion Commissioners Piepkorn and Preston voted aye.
Commissioners Gehrig, Strand and Mahoney voted nay.
The motion was declared lost for lack of a majority.
On call of the roll to amend the original motion, Commissioners Gehrig, Strand and Mahoney voted aye.
Commissioners Piepkorn and Preston voted nay.
The motion was declared carried.

Appeal of the Liquor Control Board’s Findings of a Violation of Fargo Municipal Code 25-1512 (F) by Northstar Hospitality, LLC d/b/a SouthTown PourHouse Denied:
A Hearing had been set for this day and hour to consider an appeal of the Liquor Control Board’s 5/20/20 of finds of a violation of Fargo Municipal Code 25-1512 (F) by Northstar Hospitality, d/b/a SouthTown PourHouse.
City Auditor Steve Sprague said an independent audit firm determined that SouthTown PourHouse sold 42 percent of the food if Duane’s Pizza sales were excluded, leaving SouthTown PourHouse in violation of the 50/50 requirement. He explained that SouthTown PourHouse has a business concept with Duane’s Pizza on the menu. The result of the liquor audit showed with Duane’s Pizza included, the food percentage is 53 percent food and 47 percent alcohol. He said the business agreement between SouthTown PourHouse and Duane’s Pizza is not a partnership agreement, it is a product sales and facility use agreement. This is SouthTown PourHouse’s first violation, he said, and the penalty for a first violation is a six-month probationary period to come into compliance, followed by a second audit establishing compliance. He said the sale and consumption of alcoholic beverages shall be discontinued at 1:00 a.m. for such a time and yearly audits for two years shall be paid for by the owner of the liquor license. He said the Liquor Control Board voted unanimously and the City Attorney's Office also ruled that SouthTown PourHouse and Duane's Pizza were two separate businesses and thus the ratio requirement was not met.

James Cailao, attorney from Vogel Law Firm representing Northstar Hospitality, said Brady Martz’ findings are that SouthTown PourHouse is in compliance with the City’s requirements for a Class “FA” alcoholic beverage license. He said it was noted that the food and alcohol sale percentages were calculated at 53 and 47 percent respectively, which is within the City’s requirements for the license. That is an explicit finding using the audit procedures agreed upon between the City and Brady Martz, he stated, and that should be the end of the inquiry. He said there is no basis under the law as it currently exists for finding SouthTown PourHouse not in compliance. If the City is going to regulate these licenses, he said, those regulations have to be understandable to all entities. He said the FA license requires that the licensee derive 50 percent or more of its annual gross receipts from the sale of prepared meals and not alcoholic beverages. Prepared meals are not defined under the code, he said; however, main course menu items are defined as an item fully prepared and cooked on the premises. All of the food prepared within SouthTown PourHouse is fully prepared and cooked on the premises, he said, which includes Duane’s Pizza, and there is a full and complete kitchen as required by Ordinance. He said there is no restriction on the definition of “premises” within the code; therefore, if the Commission is seeking to impose one, the Ordinance needs to be amended due to the fact that the Board’s findings of a violation are predicated on the confusion as to the business relationship between SouthTown PourHouse and Duane’s Pizza. The simple answer, he said, is it is a business relationship, a joint venture partnership, the product sales and facility use agreement specifically quotes that Duane’s Pizza agrees to make pizza on demand on the premises for the sale and consumption within the premises. In the past there have been variances granted, he said, and especially now, in this environment, the Commission should not be going outside the applicable regulations due to the fact that there is simply no basis for a finding of violation.

Mark Hanson, Nilles Law Firm, said he represents Dave Erickson who owns Bulldog Tap and Cowboy Jacks, which have Class “Z” alcoholic beverage licenses. He said SouthTown PourHouse does not want to follow the rules, there needs to be credibility in the Ordinances and this should be an easy determination. City staff spent a lot of time trying to unravel the SouthTown PourHouse and Duane’s Pizza relationship, he said, and Duane’s Pizza cannot be counted due to the fact that the FA Ordinance says “the purpose of the FA license is to allow the sale of alcoholic beverages as an adjunct to the restaurant operation” and not that of operating a full-time liquor establishment supplementary. He said an FA license is for a restaurant and liquor is supposed to be supplementary rather than an essential part. He said the owners of SouthTown PourHouse know that is what they bought and that they have to meet the food requirement. SouthTown PourHouse does not own Duane’s Pizza, they are separate businesses and they are treated separately by Environmental Health, he said. If anyone wants to open up a bar, all they need is an FA licenses and then on one side they can have a Jimmy John’s and on the other side a Chinese restaurant and as long as it is on the premises, that food can be included in the required percentages, he stated. The alcohol is supposed to be supplementary to the restaurant, he said, not to try to find ways to have food from other entities increase food sales. He said now is not the time when there is going to be a rewriting or amendment to the Ordinance; therefore, he requests on behalf of his client that the City Commission affirm the unanimous determination by the Liquor Control Board.

Jeff Thomas, owner of Frank’s Lounge, said he is in an industry that gets criticized a fair amount and there are a lot of great people in this industry that are often referred to as the “Good Old Boys Club” due to the fact that over the years, rules were changed and bent and accommodations made and that is not right. The law dictates how the liquor industry operates, he said, and these are smart people making smart business decisions, working with banks, putting projections together, putting a lot of capital at risk and doing their homework. He said they have the same ability to adjust their business plan to make this work and there is a perceived notion that things will work as it related to the Ordinance and that is the purpose of the Ordinance. When someone starts an FA business, he said, they are a business and if they own a strip mall with three restaurants, it is on the premises; however, the FA business cannot partner with those restaurants.

Commissioner Piepkorn said an FA license is less expensive. He said if the City does not uphold the rules, then why would anyone not buy an FA license that it is much less expensive than a full A or Z license? These are separate businesses, he said, this is precedent setting and if the Commission does not follow through, then there is no reason for a Liquor Control Board.

In response to a question from Commissioner Preston asking if the business plans were reviewed when this license was issued, Mr. Sprague said it was clearly stated that Duane’s Pizza was going to be on the menu; however, the City is not making a judgement if the business plan is to go forward. He said the City expects the owners to know and follow the law.

Commissioner Preston said this is indicative of the alphabet soup of liquor licenses in the City. She said it is confusing for everyone and it needs to be fixed.

Commissioner Gehrig said he does not have a problem with the pizza sales; however, the current law states that a business needs to make its own food. He said by offering someone else’s food, it is like laundering and if this continues, the structure of the law has to change. He said he wants to fix it and make it an easier system, change the law or make more licenses available for bars. He said he will support the penalty; however, the City has work to do.

Commissioner Piepkorn moved the appeal be denied.

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

Parcels of Land in Boulger First Addition Rezoned (113 and 123 10th Street South; 1013, 1015 and 1019 2nd Avenue South):
At a Hearing held on June 2, 2020 the Fargo Planning Commission recommended approval of a change in zoning from MR-3, Multi-Dwelling Residential and GC, General Commercial to GC, General Commercial.
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 subject property is included in the Downtown In Focus Plan and this plan includes a future land use plan that designates the area that includes the subject property as Mixed Use. He said the designation would allow various combinations of retail and residential as well as the expansion of an existing funeral home.

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 be accepted and the rezoning be approved on the basis that the proposal satisfactorily complies with the Comprehensive Plan, Standards of Section 20-0906.F (1-4) and all other applicable requirements of the LDC.

Second by Gehrig. On the vote being taken on the question of the adoption of the Resolution Commissioners Preston, Gehrig, 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 Boulger First 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 Boulger First Addition to the City of Fargo, Cass County, North Dakota be placed on first reading.

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

Resolution Adopted Approving Boulger First Addition:
Commissioner Preston offered the following Resolution and moved its adoption:
WHEREAS, A Plat has been filed in the office of the City Auditor entitled “Boulger First Addition” containing 2 Lots, 1 Block and 0.80 acres of land more or less, located at 113 and 123 10th Street South; 1013, 1015 and 1019 2nd Avenue South; and
WHEREAS, A Hearing was held June 2, 2020 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 July 15 and 22, 2020 that a Hearing would be held in the Commission Chambers, City Hall, Fargo, North Dakota at 5:15 p.m., July 27, 2020 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 “Boulger First 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 Gehrig. On the vote being taken on the question of the adoption of the Resolution Commissioners Preston, Gehrig, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the Resolution was adopted.

At 6:03 p.m. the Board took a five-minute recess.
After recess: All Commissioners present. Mayor Mahoney presiding.

Parcels of Land in Edition Third Addition Rezoned (4803 and 4809 38th Street South):
At a Hearing held on June 2, 2020 the Fargo Planning Commission recommended approval of a change in zoning from MR-3, Multi-Dwelling Residential to LC, Limited Commercial.
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 property is included in the 2003 Southwest Future Land Use Plan, which designates the subject property as either office or commercial. He said the proposed zone change is to LC due to the fact that the applicant believes LC zoning will provide more flexibility for the undeveloped lots.
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 be accepted and the rezoning be approved on the basis that the proposal satisfactorily complies with the Comprehensive Plan, Standards of Section 20-0906.F (1-4) and all other applicable requirements of the LDC.

Second by Gehrig. On the vote being taken on the question of the adoption of the Resolution Commissioners Preston, Gehrig, 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 the Proposed Edition Third 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 the Proposed Edition Third Addition to the City of Fargo, Cass County, North Dakota be placed on first reading.

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

Resolution Adopted Approving Edition Third Addition:
Commissioner Preston offered the following Resolution and moved its adoption:
WHEREAS, A Plat has been filed in the office of the City Auditor entitled “Edition Third Addition” containing 1 Lot, 1 Block and 2.82 acres of land more or less, located at 4803 and 4809 38th Street South; and
WHEREAS, A Hearing was held June 2, 2020 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 July 15 and 22, 2020 that a Hearing would be held in the Commission Chambers, City Hall, Fargo, North Dakota at 5:15 p.m., July 27, 2020 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 “Edition Third 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 Gehrig. On the vote being taken on the question of the adoption of the Resolution Commissioners Preston, Gehrig, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the Resolution was adopted.

Application for Abatement or Refund of Taxes #4487 submitted by Ducharme, McMillan and Associates on Behalf of Scheels All Sports for Property at 1551 45th Street South Continued to August 10, 2020:
Commissioner Strand moved that the application be placed on the Monday, August 10, 2020 agenda.

Second by Preston. On call of the roll Commissioners Strand, Preston, Gehrig, Piepkorn 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. Brickstone Plaza LLP, 2102 12th Street North (3 year).
b. Ole Rommesmo, 4401 Main Avenue (5 year).
c. 701 Brew, 701 North University (5 year).
d. John and Randa Meyer, 1010 18th Avenue South (5 year).
e. Ronald and Alice Mastrud, 66 18th Avenue North (5 year).
f. Charles Mielke Sr., 1420 18th Street South (5 year).
g. Daniel Wahl, 1544 3rd Avenue South (5 year).
h. Bruce and Jolene Karvold, 1730 14th Street South (5 year).
Commissioner Piepkorn moved the applications be approved.

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

COVID-19 Update:
Desi Fleming, Director of Fargo Cass Public Health (FCPH), said Cass County COVID-19 numbers are 2,816 positive cases with about 92 percent of those recovered. She said there have been 75 deaths in Cass County with about 77 percent of those happening in long-term care centers. There is a slight increase in cases in Cass County, she said; however, the largest increases are in other parts of the State. The positivity rate when the Red River Valley Task Force started was almost 10 percent, she said, and that has been brought down significantly due to efforts of targeted testing, contact tracing and prevention messaging. She said there have been process issues with the State regarding test delivery and notifications. FCPH is going to propose taking over some of that testing in Cass County, she said, and she is hopeful that will happen. The Task Force is also working on public health messaging that will include masking, she stated.

COVID-19 Mask Policy Recommendations:
Commissioner Strand said this is a conversation about what the City wants to do as a community regarding a mask policy. He said this is a highly charged issue and there are those who have strong views about actions that may have an impact on their personal lives. He said he is not an expert on the medical aspects; however, he wants to have a discussion about the community response approach to safely watch out for one another while also protecting the rights of individuals. He said if there is not an appetite from the Commission for a broader all-encompassing approach for the community, he will suggest that it be broken down into targeted topics, one of which is City employees and City facilities, the public engagement in City facilities and support of the business community that is deciding to implement policies so they would know the City stands with them. He said he is not looking for laws and to turn the Police Department into the mask police. What he is looking for, he said, is a community approach to a health crisis beyond anything anyone has ever comprehended or experienced. The first overarching discussion will be a directive from the City, he said, that it is the desire that when people are out in public and unable to socially distance, that they don a mask and show that courtesy to others in their personal space. That directive is nothing more at this point than a suggested directive from the City, he said, and he is not talking about penalties and fines, just to set the standard so it is known what the community is expecting and hoping for from each other and in a few weeks if that directive is not successful, it can come back and the Commission can look at a more specific Ordinance with regard to fines and the imposition of a penalty. He said everyone is familiar with “no shirt, no shoes, no service” and no one has ever come before the City Commission saying they want to be able to go into a restaurant barefoot and shirtless. When driving down the street, he said, people have to adhere to basic rules for public safety such as stopping at stop signs and following speed limits. What he would like, he said, is a directive to tell the residents to respect each other and he hopes to never have to have a discussion about penalties and fines and having law enforcement use their time.

Commissioner Preston said there has been a lot of confusion around wearing masks. This is such a different virus, she said, that started looking like one thing and as the understanding has evolved, some research studies are coming out from other countries that have gone through the cycle and are on the other side of it, which indicates masks are effective. There is some indication that masks are effective, she said, and the trend in the numbers is concerning, especially in the western part of the State. Everyone is struggling to try to figure out how to live with this virus, she said, and part of living with this virus for probably the next year is to regularly wear masks. It is an inconvenience, she said, glasses fog up and it is not fun; however, a mask is not to protect someone like a seatbelt, it is to protect the individual a person is talking with. The time to act is now, she said, not when someone has it and when the numbers are going up, then it is too late to try to lessen the impact. There are a number of businesses supportive of this, she said, and there are a number of them that have implemented this policy and they are looking for support from the City leaders and she supports this proposal.

Commissioner Gehrig said take a step back and ask “what is the curve?” The curve is the number of hospital beds available relative to the number of people who need hospital beds at any given time, he said. That is the curve, he said, and there is only one curve, there are not multiple curves, there is not a curve for the total number of infected, there is not a curve for the total number of deaths; therefore, why is the economy closed down resulting in mass unemployment? He said North Dakota went from 2 percent unemployment to upwards of 17 percent, trying to flatten the curve. Social distancing is nothing but a delay mechanism, he said, it is not a cure, it does not end COVID, it is a delay mechanism and it worked. There has never been 5 percent capacity in hospitals in Fargo or in North Dakota, he said, and the curve remains flat. The economy cannot be closed down forever to delay COVID, he said, and social distancing and masks are nothing more than a delay. The talk tonight is about masks with the stated goal of stopping the spread of COVID, he said. Masks are not a cure and masks will not stop the spread; masks will only delay the spread, he said. At some point, he said, everyone will get this virus, just like a cold or the flu. He said the City cannot make everyone social distance or wear masks forever. He said the inevitable cannot be delayed forever; therefore, on a separate but related note, an Ordinance like this is not harmless. It is not harmless to say that everyone has to wear a mask, he said, and he has seen the unrest in the public over this issue. When people institute these type of rules, he said, there is unrest and it is getting vile. Then there is the issue of enforcement, he said, and God forbid, the cops on the street have to pull people over for not wearing a mask or see that they are not six feet apart. That would be mayhem; therefore, he said, he will not support a City-wide mask Ordinance, especially at this point when the curve is absolutely flat.

Commissioner Piepkorn said he would support encouraging people riding MATBUS and people at the public Libraries to wear masks as those are legitimate things where the City is protecting its employees. Those are the highest traffic areas, he said, and he is not comfortable making it mandatory or the law; however, it can be strongly encouraged.

In response to a question from Commissioner Piepkorn asking if there are certain areas that she would recommend wearing a mask, Ms. Fleming said she would recommend them anytime someone is out in public such as at the grocery store. Those are wise places to wear a mask, she said, and to Commissioner Preston’s comments about wearing masks only being beneficial to other people, new research shows that there is a benefit to both the wearer and those around them. She said the ultimate goal is to keep the virus out of vulnerable populations, such as long-term care centers, which have been devastated by this disease. She said the problem is younger people, who tend to provide direct care to those in long-term care, are out in the public and then they go into these environments. As a public health professional, she said, she supports the use of masks and knows there are challenges with mandates. She said she has seen a significant increase in mask wearing in the public. She hopes that the issue of wearing masks can be about public health and not about politics, she said. The health care community is trying to slow the spread, she said, and to Commissioner Gehrig’s comment, she knows masks cannot cure the virus; however, the goal is to slow it down until, hopefully, there is a vaccine. She said everyone may not have to get the virus if it can be delayed enough to when there is a vaccine, then everyone can be vaccinated and until that happens, there is headway with saving lives. There are certain conditions where you cannot social distance so those would be places she would recommend mask wearing. MATBUS and those types of environments, anything indoors and close-quartered where people cannot separate, those would be higher risk environments.

City Attorney Erik Johnson said the City employee, public facility mask mandate (Option B.1), converts the current guidance policy for City employees to more of a mandatory standard. He said it would involve some additional work by City Administration, Human Resources and Fargo Cass Public Health as to whether any aspects of it need to be tweaked. A component of that motion, he said, is after the word “furthermore” and that is the part where Commissioner Strand is suggesting that if the City is asking businesses to have a “no shirt, no shoes, no mask, no service” policy, the City should as well. With City buildings, the request would be that people wear masks when they enter City buildings and, again, this is more of a mandate. The motion does say that City Administration is directed to draft the appropriate document necessary to implement it, providing appropriate exceptions for accommodations for persons with disabilities or other appropriate exceptions. He said this particular motion may involve approval of additional details to be worked out and possibly City Administration will want to come back and get the Commission’s approval.

Matt Peterson, Assistant Transit Director, said with MATBUS and the Minnesota State regulation that came into place last week, MATBUS service operates across state lines; therefore, Transit asks that the City Commission approve a mandate that masks are required on board MATBUS vehicles as soon as possible. He said Transit would then work with Fargo Cass Public Health in getting the message out. He said he would suggest a motion would have the requirement begin Monday, August 3rd, and then MATBUS would require masks in order to have a continuity of operation between Fargo and Moorhead.

Commissioner Strand moved Option A, the City-wide mask directive, be approved as follows:
A. All persons within the City are hereby directed to wear masks in any public setting where others are present and social distancing of at least 6 feet cannot be attained. All persons are directed to wear masks in places like schools, businesses, offices and restaurants. Masks are also needed in outdoor situations when social distancing of at least six feet is not possible. People outdoors walking their dog or mowing their yard are not required to wear them. Individuals with disabilities, physical or mental health issues that make wearing a mask problematic are exempt from this directive, but are encouraged to wear a face shield.
B. Private businesses, including offices, retail stores and the like, are strongly encouraged to adopt a privately-enforced policy prohibiting entry onto the private premises without a protective mask. With respect to bars, restaurants and other locations where eating and drinking occurs, the adopted policy should require masks to be worn upon entry with an exception allowing masks to be removed for eating and drinking.
C. Such businesses are reminded that they may enforce such policies by demanding that such persons leave the premises and that the Fargo Police Department is ready, willing and able to provide assistance in enforcing such policies using a trespass notice and order.

Second by Preston.

Commissioner Gehrig said he wants to make it very clear to everyone there are no teeth to this directive, no one is going to be arrested or fined. It is a directive and not a mandate, he stated.

In response to a question from Commissioner Gehrig asking if there is going to be a sunset with this directive, Mr. Johnson said there is not.

In response to a question from Commissioner Gehrig asking what the sunset should be, Ms. Fleming said various factors will have to be reviewed including case numbers. She said COVID is not going to go away until there is herd immunity, which will take a very long time, or until there is a vaccine.

Commissioner Gehrig moved to amend the motion that the directive be revisited every three months.

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

On call of the roll on the original motion, as amended, Commissioners Strand, Preston, Gehrig and Mahoney voted aye.
Commissioner Piepkorn voted nay.
The motion was declared carried.

Commissioner Strand moved that the request from the Transit Department to implement a mask mandate for MATBUS by August 3rd to complement the mask mandate in Minnesota be approved.

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

Mr. Johnson said the motion presented for Option B.1 applies to City employees. He said there is a policy in place developed since the time when City Hall and other City departments were shut down due to the COVID crisis. In May there was an initial Phase One reopening and there was a guidance document promulgated at that time that is still in effect. It encourages wearing masks and social distancing and it empowers department heads to figure out the rules for their particular department. He said this particular motion attempts to convert that guidance document into a mandatory standard, recognizing that more work might need to be done to figure out exactly what that looks like; therefore, it directs City Administration, Human Resources, Fargo Cass Public Health and legal counsel to figure out the appropriate revisions to that guidance document and to turn it into a mandatory standard. The second component of the motion, he said, is to take all City-owned buildings, which includes City Hall, the Library, FARGODOME, Public Works buildings and so forth and require masks to be worn before entrance into those buildings. He said it also it authorizes and directs City Administration to look into exactly how that policy would be implemented and there may need to be some exceptions for people who cannot wear masks. The review also means addressing some of those issues relative to the Library and to make sure that there is an understanding as to what happens when somebody refuses to wear a mask and refuses to leave, just as in stores and other retail outlets that need to deal with that issue. The City will have to develop protocol for those situations, which might include calling the police and asking for a trespass notice. The motion would initiate that process, he said, and set it as a standard with some necessary follow-up.

In response to a question from Commissioner Piepkorn, asking how this affects real life and when it gets right down to it, for example, if he walks into City Hall by himself and walks down the hallway up to his office by himself, does he have to wear a mask all of that time? He said that is ridiculous and is not benefiting anything and has nothing to do with anything other than the City telling people how to live their lives. He said that is not what the City should be doing. He said he supports masks in the Library where there are many people in an enclosed area; however, not walking down the hallway by himself.

Commissioner Gehrig said that makes sense. He said the City Commission members are talking into microphones now without face masks due to the fact that everyone is far enough apart and with this mandate, he will have to wear a mask for an entire three-hour meeting. He said it makes lot of sense to have something that says when someone cannot social distance, wear a mask.

Commissioner Strand moved Option B.1 be approved as follows, amending the motion so there is a requirement for a social distancing trigger:
“The ‘Reopen Guidance Regarding COVID-19’ encourages and admonishes City employees to use appropriate precautionary and safe COVID practices, and that said ‘Re-Open Guidance’ be converted from a ‘guidance’ document to a mandatory standard for employee behavior with respect to those matters pertaining to the wearing of masks and that City Administration be directed to draft the appropriate document or documents implementing the same, while providing appropriate exceptions to accommodate employee disabilities or other appropriate limitations and exceptions; and, furthermore, with respect to City Hall, the Fargo Public Library, FARGODOME, Public Works Building and all buildings owned or leased by the City, all members of the public shall be required to wear a COVID-prevention face covering upon entry and those failing or refusing to don such a face covering shall be prohibited from entrance and City Administration is directed to draft the appropriate document or documents necessary to implement the same, while providing appropriate exceptions for the accommodation of persons with disability or other appropriate exceptions.”

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

Mr. Johnson said the guidance document does say just that, it does do what Ms. Fleming has said, it includes the idea of starting with social distancing and wearing masks. That is the employee policy; however, when it comes to non-employees coming to the building, the policy is the language after the word “furthermore,” recognizing that the City Administration directive may provide some tweaks to this language so that similar language emphasizing social distancing first with masks being required when social distancing cannot obtained.

In response to a question from Mayor Mahoney, asking if City Administration should come back with a finished product at the next meeting, Mr. Johnson said that given this discussion, he thinks that City Administration would not implement this policy until they got the City Commission approval of a final draft.

In response to a question from Commissioner Gehrig asking what the trespassing scenario is if someone gets on a bus and is not wearing a mask, Mr. Peterson said the standard policy on board the vehicles is anytime Fargo PD is required to come on scene, which disrupts service and other passengers, it is an automatic two-year trespass. He said that is for an intoxicated individual and a wide variety of other reasons. He said the mask issue would fall under that standard policy. He said there are programs in place to reduce a two-year trespass if those people were to call and set up a meeting, and for example, an intoxicated passenger goes to treatment, Transit will remove the trespass early and give them another chance or if someone is medically unable or has a disability and cannot wear a mask. He said as long as the driver is told a reason why a person is not wearing a mask, Transit is not going to enforce the rule. As for drivers, he said, protective barriers have been installed on all of the vehicles and the fleet will be retrofitted this fall with a better barrier design.

Human Relations Commission Recommendations Approved:
The Board received a communication from Planning Director Nicole Crutchfield regarding a Statement of Intent, the Juneteenth Holiday and a 2020 Work Plan. She said the goal is to recognize some of the recent actions the Human Relations Commission (HRC) has taken. The goal of HRC, she said, is to provide leadership in the area of civil rights as a matter of process. She said in general, the HRC does not have authoritative powers but is instead a source of direction for the general public, the City Commission and for anyone who seeks the HRC’s guidance. The appointed Commissioners represent knowledge and experience and perform work in subject areas of interest to the HRC’s role, she said. When the Planning Department was restructured in 2018, she said, she presented some goals to the City Commission, and one of those goals was more dialogue to synchronize work plans. She said the Planning Department staffs many boards and commissions and it is hard to measure progress when there are so many different strategies; therefore, in an effort to coalesce this work, Planning began working with more active boards to develop work plans to present to the City Commission. The Work Plan is similar to what is seen with the Capital Improvement Planning process, the Arts and Culture Commission and the Native American Commission. Facilitators were brought on to work with staff and board members to develop consensus on the Work Plan, she said. In the beginning, she said, the HRC was able to finalize its Work Plan and staff had intended to bring it to the City Commission in March as a way to confirm that process and prioritize the work in a setting that is more transparent and public. There are two other recent actions taken by the HRC, besides the Work Plan, and those include awareness of the Juneteenth holiday based on work similar to the Indigenous Peoples Day discussed several years ago. It takes time to work with the HRC, the public and the City Attorney’s Office to identify the logistics of how to create a holiday that is formally recognized. She said the motion tonight is simply to ask for support to spend time on it as a staff and estimate within four to five months a more formal plan of action that can be brought forth. Also part of the HRC recommendations are discussions and activities with WeAreOne and a metro-wide conversation on how to bring more community dialogue and actions for change among community members for inclusion and participation in city governance. She said in an effort to build trust, Statement of Intent was suggested as a way to memorialize this working with the Mayor’s office. She said staff is working with many different groups advocating for equity and inclusion and in tandem with the Police Department, the Mayor’s office and the HRC have been present at several meetings. She said the conversations are complex and many initiatives were discussed. In addition, she said, there are members of the public not part of a group who want to be heard and participate in these discussions. She said the HRC is actively developing more in-depth outreach and listening sessions for more transparency for those who are not within the City day-to-day structure and understanding how governance happens. With this participation at the City Commission level, everyone is learning how complicated the process can appear and also recognizes the generational gaps in the works that current boards and commissions have. She said the first action item is the Statement of Intent as coordinated with WeAreOne and an amendment to that Statement is to include monthly reporting.

In response to a question from Commissioner Gehrig asking if WeAreOne is a private organization the City is partnering with, Ms. Crutchfield said they are a group similar to a neighborhood association.

In response to a question from Commissioner Gehrig asking if the City has made any other similar agreements with any of the groups in the past, Ms. Crutchfield said she is not aware of any other agreements.

In response to a question from Commissioner Gehrig asking how this is not covered under the HRC, Ms. Crutchfield said she thinks the concept is the metro-wide component because it includes West Fargo Mayor Bernie Dardis and Moorhead Mayor Johnathan Judd. She said the HRC needs community partners with other cities at the table as human relations is discussed.

Commissioner Gehrig said if the City has a Human Relations Commission, this is something the City has never done with any other private organization, it is outside the City’s purview and he does not see why the City would make it a special exemption.

Commissioner Preston said the most important part of this agreement is the questions which provide a framework for dialogue that needs to happen. She said the community discussion has swayed all over the place and there has not been a clear focus. She said in her mind these questions will provide guidance for that discussion and would help move things forward. It is not necessarily the agreement with any particular group, she said; it is the framework to have conversation and dialogue at other meetings throughout the month.

Commissioner Gehrig said he is for meaningful dialogue, which is the reason for the HRC. He said the HRC involves many groups, including New Americans and Native Americans. He said a new commission was not created for New Americans, issues were brought to the HRC, under that umbrella, which is the reason he will vote “no.” He said he does not think this is anything new.

Commissioner Strand said the tone in the room tonight is testimony to the need for the City to build trust with each other and to step up the dialogue. He said North Dakota in 2020 is not same as North Dakota ever before. There are world circumstances which have lapped up on Fargo’s door, he said, and this agreement is an intention to say the City is going to stay true to its commitment to do its best to address the concerns of the community. There are not very many of these agreements, he said; however, this one is needed in order to show that the City means what it says to the community who says it does not always trust the City and is not adequately transparent to their satisfaction. He said it would not hurt to yield a little and to show a willingness to be open to hearing them.

Commissioner Strand moved the Statement of Intent and agreement with WeAreOne be approved with the addition of monthly reporting.

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

Commissioner Gehrig moved the recommendation from the HRC to create Juneteenth as a holiday and to support further work with City leaders, members of the community and HRC to further explore the details of how the holiday is recognized be approved.

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

Commission Strand moved the Human Relations Commission’s 2020 Work Plan be approved.

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

General Fund-Budget to Actual through June 2020 (unaudited) Received and Filed (Moved from the Consent Agenda):
Commissioner Preston said she had a question from a citizen about the budget update and she would like more explanation.

Finance Director Kent Costin said this item is a monthly report to apprise the City Commission of the amount of revenue received for the year and the expenditures listed by department. He said it an information item and it is important that the City Commission understand what revenues are coming in and what monies are being expended. The numbers with regard to the budget were formulated more than a year ago, he said, and this is a year like none other. He said the messaging in this report was the same messaging provided to the budget team in that the City is seeing some lag in revenues and the City is very open and transparent about that and knows the lag is coming from State aid, sales tax, highway funds and so on. He said this is a mid-year report and what is shown is evidence of economic conditions from last year about this time to the current year. He said he is optimistic that sales tax and local sales tax revenues have rebounded, the City is experiencing a 9 percent increase in sales tax.

Commission Gehrig moved the General Fund-Budget to Actual through June 2020 (unaudited) be received and filed.

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

Recommendation to Direct the City Attorney to Work with the Police Department to Draft a City Ordinance Related to Fighting Denied (Moved from the Consent Agenda):
Commissioner Preston said the reason she asked that this Item be moved from the Consent Agenda to the Regular Agenda is there have been conversations about Downtown and some of the issues with homeless individuals. She said she would be concerned about adding another Ordinance which would be a rotating door for the jail. She said she wants to hear some background as to why this is being proposed.

Deputy Chief Ross Renner said the current Ordinance that applies to fighting and how it applies to the enforcement of that Ordinance by officers on the street now is the Ordinance that this would be charged under is disorderly conduct. He said part of that Ordinance requires annoyance, alarming behavior or harassment; therefore, as the officers look at that, obviously fighting in public for many people would easily meet those categories; however, officers, per case law, have a higher threshold of being annoyed or alarmed for arrest and they are not necessarily able to be a witness or a victim in those cases, which is problematic for prosecution. He said what happens now is an officer could be driving down the street anywhere in the City and see people fighting and the officer’s ability to take enforcement action is not there due to the fact that the prosecution of those cases, where it is only an officer who witnesses and there is not a victim or a witness to support those charges, is they do not get prosecuted and those cases are not successful in court. He said in those cases what really happens is the officers become referees where there are two people who are intoxicated who decide to fight and it is mutual combat. He said there is no other Ordinance to deal with those individuals other than to send them on their way and as they are sent on their way, officers find that as they travel further, they may also engage in other fighting behavior. What a fighting Ordinance does is it allows the officer who makes these observations, like many other laws that are on the books right now, to be the witness in the case for prosecution. He said without a change in Ordinance, the Police cannot do much about people fighting in Police presence.

In response to a question from Commissioner Preston asking where does de-escalation come in instead of arresting somebody, Deputy Chief Renner said many times he has been involved in the de-escalation or attempted de-escalation of fights on the street and most times, these people are actively engaging and punching and hitting each other so it comes down to officers having to use force in one form or another to separate the individuals and try to get them to settle down to the point where they are able to go on their way without fighting with others. The officers can do their best with that, he said; however, there are some people who are either too intoxicated or using drugs and it is just not possible.

In response to a question from Commissioner Gehrig asking if neither one of the individuals presses charges or wants to press charges, can the officer still arrest one or the other or both, Deputy Chief Renner said they cannot; however, with the new Ordinance that is being looked at and that statement would be correct.

Commissioner Gehrig said he thinks many people would say if there is no victim, where is the crime. He said he does not know if he likes that and anyone with an older brother, himself included, would probably have been arrested.

Deputy Chief Renner said officers do not know all the circumstances and as long as no one is pressing charges, officers have to let them go.

Commissioner Gehrig said he understands the frustration, a Police Officer does not have an easy job; however, he does not like the idea of being able to press charges for somebody else or if an officer perceives them to be fighting even though there is no victim.

Mr. Johnson said he has participated in these conversations and over the years it is hard to make those charging decisions and having to deal with the issue of what Commissioner Gehrig said, where people are in mutual combat and when the light of day shows up they realize they do not want to testify against the other guy. However, he said, in a public setting, on a public street or a public sidewalk, the idea of having a disorderly situation, there is a victim and it is the public’s sense of security and safety and that is the intent of a fighting Ordinance, which has not yet been drafted. He said what is covered under the current law is if someone else is watching this fight and they are alarmed, that is where the crime comes in, that is the victim.

Commissioner Preston said this discussion inside the Downtown group meeting was the City is not going to arrest its way out of this and she understands the frustration the Police Department must feel. She said on one hand the community is pushing the Police to fix the problem when in fact it is not going to be fixed by arresting people; it is going to be fixed only by dealing with the underlying issues of mental health and addiction. She said she does not feel comfortable adding more criminal ways to try to deal with the issue.

Deputy Chief Renner said it is important to recognize that this is not necessarily coming from the Police; it is the result of a number of conversations with people who live Downtown and who are alarmed by the fighting that is happening and the Police Department’s inability to do anything. He said when officers tell people there is not much they can do they are very surprised.

Commissioner Preston said the citizens are looking to law enforcement to solve a social problem that needs a social solution. She said she recognizes that Police are responding to a community demand and what she is saying is the City Commission needs to check that.

Mayor Mahoney said the people Downtown in business development have asked the Police to look into this type of Ordinance and what can be done to help them. He said he heard from people who were Downtown where this fighting was going on and they could not pass on the sidewalk and go about their normal business. He said the Commission was asked to look at this and see if there is an Ordinance that might help solve the problem. To Commissioner Preston’s point, he said, this is not arresting ourselves out of a problem, it is looking to see if there are other tools. He said the Commission is not passing an Ordinance tonight, it is to look into the issue as a request from the Downtown business owners to the Police Department.

In response to a question from Commissioner Strand asking what is the acceptance standard in most communities for approaching this type of a situation, Deputy Chief Renner said based on conversations with other agencies in the area, if people are fighting in public they are arrested under the disorderly conduct Ordinance. He said there are different opinions as to whether or not there are legal issues and it is the City Attorney's opinion that there are issues.

In response to a question from Commissioner Strand asking if officers do not ever arrest those fighting under disorderly conduct, Deputy Chief Renner said they do sometimes and at the officer’s discretion.

Commissioner Preston moved that the City Attorney and Police Department request to work together to draft an Ordinance related to fighting be denied.

Second by Gehrig. On call of the roll Commissioners Preston and Gehrig voted aye.
Commissioners Piepkorn, Strand and Mahoney voted nay.
The motion was declared lost for lack of a majority.

Commissioner Piepkorn moved the City Attorney and Police Department be directed to work together to draft an Ordinance related to fighting.
Mayor Mahoney relinquished the Chair to second the motion (Deputy Mayor Piepkorn presiding).

Commissioner Strand said he would like more information to get a broader perspective of the nuances and circumstances from everybody involved, examples and citations of what other cities do, what works, what does not work.

Mayor Mahoney said that is the idea of the motion, for the Ordinance to be explored and brought back to the Commission for a decision.

Greg Danz, owner of Zandbroz Variety, said he does not know who the Downtown people are asking for a fighting Ordinance. He said he thinks what people Downtown are asking about is the intoxication problem. The Police do not arrest or cite people who are drunk, he said, and people can take a fifth of whiskey and walk up and down the street and it is perfectly okay and that is what is leading to the fights, the loitering and the panhandling. He said there is no enforcement of basic good conduct Downtown and this needs to be more than about fighting. He has sympathy for the Police, he said, due to the fact that he will call the Police, who come and say their hands are tied, they cannot issue citations for disorderly conduct, for public intoxication or for open container. At the very best, he stated, the Police will take the bottle and dump it out and that is on a good day. He does not ask for anything for Downtown that is not okay in any other neighborhood, he said. He is sure that he could not go to a nice neighborhood on 17th Avenue South and sit in someone’s front yard and drink, then pee on their porch, he said. The Police would come and he would be gone, he said; however, Downtown that is not the case. People can sit on his porch and pee in his entryway, drink in front of his store, panhandle people and it stands, he said. Homelessness needs to be addressed, he said, and thank goodness the Library has reopened due to the fact that the Library is Fargo’s homeless shelter. All he is asking is to think about where you live and what you would allow and that is what is needed Downtown, he said.

Retired Major General Mike Haugen, Fargo, said he has lived in his home for more than 40 years. His children rode their bikes to school and they played in the yard, he said, and it was a very safe neighborhood; however, in the last six years there have been seven murders within eight blocks of his house. He said he does not like what is going on and he supports the Police. All of his friends, acquaintances, professional and veterans groups, when he talks to individuals who are the majority in this community, he said, they love the Police and the Sheriff's Department. He said he along with most of the residents of this community support anything that can help the Police defend the citizens and provide a safe living environment.

On call of the roll Commissioners Piepkorn and Mahoney voted aye.
Commissioners Gehrig, Preston and Strand voted nay.
The motion was declared lost for lack of majority.

Deputy Mayor Piepkorn returned the Chair (Mayor Mahoney presiding).

Commissioner Strand said the topic of opioids and addictions should be discussed by Public Health officials. The City did a great job with the Public Health Department looking at some of those topics, he said, and it is no secret in Fargo that there is a big issue with alcohol, drug addictions and behavioral health and treatment versus incarceration. What it might take as Commissioners, he said, is how to deploy resources to address these issues. He said he would like to see the Blue Ribbon Commission on Addiction reinvigorated and broaden this discussion and see what recommendations are received for this public health crisis in the community.

Commissioner Piepkorn said people can put items on the agenda, any topic and the Commission will discuss it. That is how it works, he said, the rules have to be followed and people cannot talk out of order when the Commission is trying to get its work done.

Commissioner Strand moved that Commissioner Preston be directed to take the topic of opioids and addictions to Public Health and other Departments for a broader discussion.

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

Commissioner Preston said the conversation has started about a drop-in center and a proposal to address this issue will be forthcoming.

Commissioner Piepkorn asked that the DCP be included in any of those discussions as Downtown businesses are concerned about public safety.

In response to a question from a citizen asking the Commissioners about items on the agenda under Public Hearings and in particular the Mask Policy where they wanted to make comments, Mayor Mahoney said the Mask Policy discussion was not a public hearing, therefore no public comment was accepted.

The citizen said the Human Relations Commission item was also not a Public Hearing; however, people were allowed to speak.

Mayor Mahoney said some citizens were invited to present their parts of the recommendations for that item. He said he apologizes for the public not understanding how the Regular Agenda works. Public Hearings were Item No. “44,” he said, and anything after Item No. “44” was not a Public Hearing.

Commissioner Preston said as a member of the Commission, to her it is very confusing when the public is allowed to make comments or not. She said she would suggest that guidelines be provided so it is clear when public comment is allowed.

Commissioner Piepkorn moved that the Board adjourn to 5:00 o’clock p.m., Monday, August 10, 2020.

Second by Gehrig. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 7:38 o’clock p.m.