Fargo City Commission - November 16, 2020 Minutes

The Regular Meeting of the Board of City Commissioners of the City of Fargo, North Dakota, was held in the City Commission Chambers at City Hall at 5:00 o'clock p.m., Monday, November 16, 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: Fargo Cass Public Health will host a walk-in flu shot clinic November 20th; due to rising numbers of COVID-19 cases, all Fargo Public Library buildings are closed to walk-in traffic and curbside pick-up service will be offered until further notice; and the ice rink and Skate Shack at Broadway Square in front of the Block 9 building will open December 3rd.

Order of Agenda Approved:
Commissioner Piepkorn moved the Order of the Agenda be approved, adding an extra item to the end of the Regular Agenda.

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

Minutes Approved:
Commissioner Gehrig moved that the Minutes of the Regular Meeting of the Board held on November 2, 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. 1st reading of an Ordinance Amending Section 15-0202 of Article 15-02 of Chapter 15 of the Fargo Municipal Code Relating to the Human Relations Commission.

2. 2nd reading and final adoption of the following Ordinances; 1st reading, 11/2/20:
a. Rezoning Certain Parcels of Land Lying in Touchmark Addition to the City of Fargo, Cass County, North Dakota.
b. Enacting Article 13-16 of Chapter 13 of the Fargo Municipal Code Relating to Animal Boarding Facilities.
c. Enacting and Establishing a Temporary Moratorium During the State of COVID-19 Emergency Pertaining to the Occupancy of Emergency Shelters in Certain Non-residential Structures.
d. Excluding a Certain Parcel of Land Lying in Part of Government Lot 4 of Section 5, Township 138 North, Range 49 West, in Cass County, North Dakota.

3. Extension of the Alcoholic Beverage Licenses until 6/30/21 for Lucy’s North China Cuisine, Nail Deluxe, VIP Room and Fargo Billiards and Gastropub.
4. Emergency Paid Leave Temporary Employee Policy.
5. Negative Final Balancing Change Order No. 1 in the amount of -$3,637.64 for Project No. PR-20-A1.
6. Negative Final Balancing Change Order No. 5 in the amount of -$.94 for Project No. TM-19-B1.
7. Contract Amendment No. 2 in the amount of $12,000.00 with Houston Engineering for Project No. FM-19-B0.
8. Partial Release of Water Pipeline Easements with Municipal Airport Authority of the City of Fargo (Project No. FM-16-A).
9. Receive and file Financial Status Report Year to Date through 10/31/20 for major operating funds (unaudited).
10. Receive and file General Fund – Budget to Actual through October 2020 (unaudited).
11. Bid award to Smith Detection Systems in the amount of $71,749.95 for Fourier-Transform Infrared Spectroscopy Hazardous Materials Monitor (RFP20158).
12. Notice of Grant Award from the ND Department of Environmental Quality for Abandoned Auto Program.
13. Set November 30, 2020 at 5:15 p.m. as the date and time for a hearing on a dangerous building at 1714 5th Avenue South.
14. Bid award to RDO Equipment in the amount of $197,500.00 for one articulated wheel loader (RFP20162).
15. Bid award to Sanitation Products in the amount of $226,087.00 for one three-wheeled mechanical street sweeper (RFP20163).
16. Bid award to Sanitation Products in the amount of $396,726.00 for two automated side-load refuse trucks (RFP21005).
17. Bid award to Sanitation Products in the amount of $62,178.00 for one hook hoist refuse body (RFP21006).
18. Bid award to RDO Equipment in the amount of $218,500.00 for one articulated landfill wheel loader (RFP21007).
19. Bid award to Sanitation Products in the amount of $211,087.00 for one three-wheeled mechanical street sweeper (RFP21008).
20. Release of vehicle titles to Valley Senior Services and relinquish any City interest in the vehicles, as presented.
21. Bid awards for supplying chemicals to the Water Reclamation Utility for 2021 (AFB21010).
22. Bid award for supplying chemicals to the Water Treatment Plant for 2021 (AFB21010).
23. Bid advertisement for the South Regional Water Connection Phase 2 (Project No. WA2012).
24. Contracts and bonds for Project No. WA1863 (electrical and general construction).
25. Bills in the amount of $5,869,305.67.

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.

Sanitary Sewer, Water Main, Storm Sewer, Paving and Incidentals Improvement District No. BN-20-M Various Locations in North Fargo):
Commissioner Strand moved the following action be taken in connection with Sanitary Sewer, Water Main, Storm Sewer, Paving and Incidentals Improvement District No. BN-20-M:

Adopt Resolution Creating Improvement District No. BN-20-M:
WHEREAS, The Board of City Commissioners of the City of Fargo, North Dakota, deems it expedient that Improvement District No. BN-20-M in the City of Fargo, North Dakota, be created

On 42nd Street North from 24th Avenue North to 28th Avenue North.
On 28th Avenue North between 42nd Street North and 43rd Street North.
All located in Laverne’s Addition.

COMPRISING:
Lots 1, 5, 6 and 7 inclusive, 2, 3 and 4 exclusive, Block 2.
Lots 1 through 4, Block 3.
All in Laverne’s Addition.

All of the unplatted land in the Northwest Quarter (NW ¼) of Section 27, Township 140 North, Range 49 West.

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

NOW, THEREFORE, BE IT RESOLVED, That Sanitary Sewer, Water Main, Storm Sewer, Paving and Incidentals Improvement District No. BN-20-M 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 Improvement District No. BN-20-M:
Direct City Engineer to report as to the general nature, purpose and feasibility relative to the construction of Improvement District No. BN-20-M 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 $2,484,618.26.)

Order Plans and Specifications for Improvement District No. BN-20-M:
Direct City Engineer to prepare Plans and Specifications for the construction of Improvement District No. BN-20-M in the City of Fargo, North Dakota.

Adopt Resolution Approving Plans and Specifications and Engineer's Report for Improvement District No. BN-20-M:
WHEREAS, The Board of City Commissioners of the City of Fargo, North Dakota, has created Improvement District No. BN-20-M 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 Improvement District No. BN-20-M 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 Sanitary Sewer, Water Main, Storm Sewer, Paving and Incidentals 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 Sanitary Sewer, Water Main, Storm Sewer, Paving and Incidentals Improvement District No. BN-20-M 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 the entire cost of said improvement be specially assessed against the benefited property in said improvement district in amounts proportionate to and not exceeding the benefits to be derived by them respectively from said improvement.
Protests against the proposed Sanitary Sewer, Water Main, Storm Sewer, Paving and Incidentals must be in writing and must be filed with the City Auditor's Office within 30 days after 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 Improvement District No. BN-20-M:
Direct City Auditor's Office to publish a Notice, as required by law, calling for bids for the construction of Improvement District No. BN-20-M in the City of Fargo, North Dakota.

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.

Construction Update:
City Engineer Brenda Derrig said there were 31 construction projects in 2020 at a cost of $62 million with most projects complete or nearing completion and there were no safety incidents this year. She said some of the major projects completed this year included: Main Avenue from Broadway to University Drive; Seventh Avenue North from Second Street to Broadway; Third Avenue North from 11th to 12th Street; 10th Street North between 19th and 28th Avenue; and 17th Street South with a mill and overlay on 25th Avenue South, which added a larger storm sewer pipe to help support the reconstruction of 21st Avenue South in 2021. She said a section of 64th Avenue South was paved, there were improvements made to Drain 53 and work continued on several new South Fargo developments including Legacy, Selkirk, Golden Valley, Madelyn Meadows and Valley View Estates. Work has started on the new 38th Street South, she said, which is just south of Walmart off 52nd Avenue, which will eventually connect into the 64th Avenue project and overpass. She said the Amazon project on 44th Avenue North has begun and there will be some infrastructure development to support this enormous project. She said flood protection work this year included the construction of a levee in the Lindenwood Park area and north side flood protection work along a drain that will tie into the lagoons. Other construction work this year included crack seal, seal coat, concrete repair, asphalt mill and overlay, asphalt wear course, street light rehab, signal LED replacement, new street lighting, flood buyout demolition, storm sewer repairs, alley paving, sidewalk rehab and new sidewalk installation, she said.

Pre-Disaster Mitigation Program Subgrant Agreement Approved:
The Board received a communication from Water Utility Engineer Dan Portlock stating Water Utility staff is seeking approval of a Pre-Disaster Mitigation (PDM) Program Subgrant Agreement, which is a 75 percent Federal Emergency Management Association (FEMA) cost-share grant that will help pay for needed flood protection at the Red River Pumping Station.
City Administrator Bruce Grubb said the current pumping station was built in 1995 and is the primary pumping facility to deliver raw water from the Red River to the Water Treatment Plant. With regionalization, he said, the pumping station’s capacity needs to increase; however, the pumping station is also in a vulnerable location in the City’s existing planned floodwall and levee system. He said the City Commission gave approval at a prior meeting to apply for the FEMA grant and at the same time approved a commitment to the local cost share if the grant was successful. He said now that the City has received approval for the grant, the last step is to approve the Acceptance Agreement. He said the permanent floodwall will be incorporated into the pumping station and a single project will accomplish flood protection and an increase of pumping capacity for the Water Treatment Plant. He said the expansion of the pumping station will also include all of the electrical and chemical feed equipment elevated above flood level. The Pre-Disaster Mitigation Program offers up to $4 million in grant funding per project and comes at 75 percent federal and 25 percent local cost share. He said the cost for the project is $4.75 million and with the 75/25 cost share, it requires a local commitment of $1,188,322.50. He said this could not have worked out much better for the City.
Commissioner Gehrig said Water Utility does a great job of going after these types of grants. He said it takes a lot of time and effort; however, it pays off and saves the City millions of dollars.

In response to a question from Mayor Mahoney asking if this saves money for the FM Diversion Flood Project, Mr. Grubb said due to the fact that it is a combined project and the grant is related to flood protection, the City is getting a discounted floodwall through the new pumping station.

Commissioner Gehrig moved the Pre-Disaster Mitigation Program Subgrant Agreement be approved.

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

Amendments to the 2019 Action Plan Community Development Block Grant (CDBG)/HOME Program Approved:
A Hearing had been set for this day and hour to consider Amendments to the 2019 Action Plan Community Development Block Grant (CDBG)/HOME Program.
The Board received a communication from Community Development Planning Coordinator Tia Braseth stating the Department of Planning and Development is considering COVID-related Amendments to its 2019 Annual Action Plan approved by the City Commission on August 24, 2020.
Planning Director Nicole Crutchfield said an additional allocation of $580,116.00 has been released for COVID-related responses as part of the CARES Act and must be included in the 2019 plan. She said she is asking the City Commission to consider the following CDBG actions: $140,000.00 to Southeastern North Dakota Community Action Agency and $290,000.00 to Presentation Partners in Housing for operational support for homeless prevention, diversion and emergency housing assistance; $31,580.00 for the Mobile Homeless Health Services Outreach Program, which provides COVID-19 testing for the homeless population; $20,000.00 to High Plains Fair Housing Center for eviction prevention efforts; and $98,536.00 for staff support for planning, implementation, reporting and monitoring of CBDG resources. She said the proposed Amendments are in compliance with federal regulations for the Department of Housing and Urban Development CBDG program.

In response to a question from Commissioner Strand asking for more information about the eviction prevention efforts, Ms. Crutchfield said High Plains Fair Housing Center will provide additional consultation to tenants and landlords to help them understand the protections offered.
Commissioner Strand moved the Resolution entitled “Resolution Approving Amendments to Community Development Block Grant (CDBG)/HOME 2019 Annual Action Plan,” and referred to as Attachment “A,” be adopted and attached hereto.

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.

Request for Tax Increment Financing (TIF) for the Redevelopment of the Anderson Park Softball Complex Denied:
Director of Strategic Planning Jim Gilmour said the City received a request for Tax Increment Financing (TIF) for redevelopment of the Anderson Park Softball Complex. The site is owned by the Fargo Park District, he said, which has decided to sell four of the softball fields and surface parking along 45th Street South to EPIC Companies who will develop the site. The request for a Development Plan and TIF District is different from others approved by the City, he said, due to the fact that there are no challenges in providing infrastructure and there are no blighted conditions or site limitations. He said activities funded by TIF funds would be public benefits of park facilities, structured parking and public housing. Fargo’s TIF policy calls for mixed-use developments to meet at least seven of 11 objectives, he stated, and this project meets six and possibly three more, depending on the specific commercial tenants. The City Commission needs to review the request, he said, to determine if staff should proceed to work with the developer on a Renewal Plan and Development Agreement and forward an application to the City financial advisers for review. He said if EPIC Companies do not get a TIF, they would still do $80 million to $100 million worth of development; however, with a TIF the level of development would be higher and include public facilities that would benefit the Park District and the community including a parking ramp.

Commissioner Piepkorn said this is the initial vote and if approved, the request will get financial review before coming back to the City Commission for approval. He said this is a new breed of cat and the thing that appeals to him is the parking ramp that would benefit the Park District and the fact that this is a collaboration between multiple parties. He said he is also excited about the possibility of including a low-income housing project and without that, he would have a hard time supporting it. He said there has been a lot of effort to put low-income housing Downtown; however, low-income housing needs to be in other places as well.

In response to a question from Commissioner Piepkorn asking what EPIC Companies received from the City of West Fargo for The Lights development, Todd Berning, EPIC Companies, said the company received a $15 million, 25-year TIF from West Fargo, with half going to the parking ramp and the other half to the plaza. He said those things are public amenities. He said the process is similar to building a hockey rink or a swimming pool where after it is built the question is how to operate it. He said EPIC builds in many revenue streams, such as commercial tenants paying a fee to help fund amenities. He said EPIC and the Fargo Park District want to create a destination and while EPIC is acquiring the acreage, they are looking at the entire 50 acres as to what can be done for public improvements. He said he needs to study the legalities and will research many things to help as many people as he can. He said he would like the opportunity to work with the Fargo Housing Authority and designating one of the buildings in the project to HUD and would like to work with the City to figure that out.

Dave Leker, Fargo Park District, said the dream is to turn this into a five-diamond Legion complex in order to host tournaments similar to Squirt International. He said this is a great opportunity to redevelop the area and it will benefit the Red River Zoo, the Curling Club and Southwest Youth Hockey Arena. He said a TIF would be the cherry on top that could take this project to the next level. If there is not a TIF, he said, there would still be a neighborhood park; however, being able to gain some public amenities such as a parking ramp and low-income housing, it could be turned into a one-of-a-kind entertainment and sports complex.

Commissioner Gehrig said the area it is not blighted and fails the “but for” question. He said EPIC could build something nice without the TIF; however, with the TIF it could build something very nice. This is not what incentives are for, he said, and the City is not just “finding” the money; it comes from schools, parks, cities, Cass County and the airport and any money given for a TIF does not go to the entities in which the taxes are supposed to benefit. He said he is happy that EPIC is developing this project; however, if this is approved the City Commission is going to get more entrenched with these requests.

In response to a question from Commissioner Preston asking if the TIF funding would fund the parking ramp, the park, low-income housing and the Red River Zoo, Mr. Leker said all of the TIF funds would go to those entities.

In response to a question from Commissioner Preston asking who would own the parking ramp, Mr. Berning said that is up to the City. He said if the City does not want to own it, he will figure it out internally; however, he wants to be sure parking is free.

In response to a question from Commissioner Preston asking if the City has used TIF funding for a parking ramp that stayed in private sector ownership, Mr. Gilmour said with Block 9, TIF revenue was used, in part, to pay for the parking ramp and the City owns the ramp and is selling it to Block 9 Partners on a contract for deed. He said in the long run that ramp will be privately owned; however, there are requirements over the 25 years that the parking has to be free to the public on evenings and weekends.

Commissioner Preston said she appreciates the mixed-use development, the higher density and the park amenities; however, the part that bothers her is this is not going to feel like a public park. She said in 25 years or even sooner, those living in the complex are going to think it is their park and it is going to be tough for the public to use it. She said she just does not see a lot of public amenity in the park.

Mr. Gilmour said the basic question is if there is enough potential public benefit and with the parking ramp, some of the residents will use it.

Commissioner Preston said she feels as if the City is subsidizing a private development with not a lot of public amenity.

Mayor Mahoney said the TIF would not be approved tonight; the question is whether this application should go to the Tax Exempt Review Committee for evaluation.

In response to a question from Commissioner Preston asking if there has been any conversation with Cass County regarding this project, Mr. Gilmour said there has not. He said when providing property tax incentives, the County and School District can opt out. He said in this case, the TIF is for public facilities and there is nothing in State law that allows a County or a School District to opt out.

Mr. Leker said a public park vs. a private park comes down to amenities and programs offered, working with partners and marketing. He said he had some concerns regarding the park surrounded by buildings; however, with amenities and programming it will definitely be a public space that people will use.

In response to a question from Commissioner Strand asking since the project is in the West Fargo School District, will West Fargo not receive revenues until the TIF ends, Mr. Gilmour said that is correct. He said the way the law is written School Districts cannot opt out.

Commission Gehrig said with Block 9, TIF dollars were used, the City purchased the parking ramp and Block 9 built it; however, now Block 9 owns it and did not pay a dime for it and that is $15 million in their pocket. He said the City does not need to own a parking ramp in South Fargo that will not make money. In addition, he said, the Red River Zoo is a private entity for which TIF dollars cannot be used.

Mr. Gilmour said the Red River Zoo is on Park District land under a lease agreement.

Commissioner Preston said she does not feel comfortable using TIF dollars to support private sector nonprofits and this whole thing is pushing the envelope.

Commissioner Strand said it is important to acknowledge the investors for their vision and leveraging their assets for community investments. He said he is worried about the state of the economy and he is going to tighten up on tax incentives until he is sure how the future looks. He said he would be fighting for these revenues for the School District, especially at a time when the School Districts cannot pay adequate wages.

Commissioner Piepkorn said if this is not approved the project will not include any low-income housing.
Commissioner Gehrig moved the request for Tax Increment Financing for the redevelopment of the Anderson Park Softball Complex be denied.

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

Applications for Property Tax Exemptions for Improvements Made to Buildings Approved:
a. Osama and Brenna Naseer, 2677 Meadow Creek Circle South (3 year).
b. Brooke and Dustin Clark, 408 28th Avenue North (5 year).
Commissioner Gehrig moved the applications be approved.

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

COVID-19 Update:
Mayor Mahoney said COVID-19 cases in the State as well as Cass County continue to increase weekly and as cases increase, so has the positivity rate, with Cass County’s positivity rate above the State’s. There have been 105 deaths in Cass County with 743 total deaths in the State, he said, and hospitalizations continue to be high with many facilities across the State pulling staff, closing down clinics to staff critical infrastructure and diverting any further admissions. Locally, health systems are very busy but maintaining, he stated, with staffing being the biggest limitation. Using the ND Department of Health Risk Assessment, current active cases in Cass County meet the Critical Red category levels, he said, and the positivity rate has also reached the Critical Red category; however, the Governor has maintained Cass County in the High Risk Orange category along with much of the State. Fargo Cass Public Health (FCPH) staff have been working with area businesses on education and mitigation efforts, he said, and conducted a survey recently on mask usage at various establishments. The survey contained questions on mask compliance and proper use, he said, and compliance with employees seems to be significantly higher than the public, with some comments regarding pushback from the public and staff not feeling comfortable approaching patrons. With numbers increasing, he said, there will be more challenging times ahead and as a reminder, there is a three-week lag in mitigation efforts and seeing the impact of those measures; therefore, a full community effort over the next few months will help get numbers under control until a vaccine is readily available. He said on November 13th he issued an Emergency Executive Order regarding occupancy of bars and restaurants, then the Governor issued an Executive Order later that day; therefore, today at noon an Amendment of his Executive Order was made in order to sync with the State Executive Order and to clarify occupancy of bars and restaurants at 50 percent. He said Fargo will follow the State’s rules for funerals and weddings and he worked with FCPH to figure out the proper amount of people at a church or an event. At this time, he said, he would like the City Commission to have a discussion regarding the Emergency Executive Order.

In response to a question from Commissioner Preston asking what happens when complaints regarding masks or occupancy come in after hours, Police Chief David Zibolski said any time during the day, if calls come into the Red River Regional Dispatch Center regarding masks or occupancy, those calls are assigned a separate code and routed to the shift commander for evaluation. He said during the evening hours officers would concentrate on high capacity licensed premises, some of which have come to the Police Department’s attention for other related issues, to enforce occupancy and deal with mask education and enforcement if needed. He said the shift commander would evaluate those calls based on operational needs of the Police Department and send someone to investigate. He said if there seems to be a pattern, Police would follow up as resources allow.

In response to a question from Commissioner Preston asking if officers are carrying masks to hand out, Chief Zibolksi said they are not.

Commissioner Piepkorn said Fargo has been under an Emergency Declaration for seven months and it bothers him that he has no idea what is going on with the declarations and he is not involved. He said the Emergency Declarations in 2009 were during the floods; however, Declarations are now being made left and right, none of the Commissioners are involved and that is not how Fargo governs. He said this is a five-member Commission and he thinks the Emergency Declaration needs to end.

City Attorney Erik Johnson said the COVID-related Emergency Declaration was made by the Mayor on March 16, 2020, and according to the City Emergency Powers Ordinance, the Mayor can declare a State of Emergency; however, it cannot last longer than 30 days without City Commission approval. He said the City Commission took action on April 6, 2020 to approve the State of Emergency determination by the Mayor and the City Commission proposed and approved an indefinite extension so long as the COVID-19 emergency continued; therefore, the State of Emergency existed and the impact of the State of Emergency is that it authorizes the Mayor to make an Executive Order as well as Amendments, all of which are within the City Emergency Powers Ordinance.

Mayor Mahoney said Federal and State reimbursement is dependent on a State of Emergency existing. He said he spoke to FCPH, the State Public Health Officer and followed their best advice. The mask mandate is now a State-ordered mandate and the Mayor does not have control, he said.

Commissioner Piepkorn said what he read in the newspaper is if someone violated the rules for occupancy, a business was going to lose its liquor license. Who decided that and when was that decided, he asked.

Mayor Mahoney said the liquor license issue is for the businesses abusing occupancy limits. He said liquor license owners who are following the guidelines felt it was unfair that some bars were at 100 percent capacity and it was not a fair playing field. Any liquor license issues would come to the Liquor Control Board and the City Commission, he said, and if a business is at 100 percent capacity with no masks and obviously violating the rules, what to do with that business’ liquor license would be the decision of the City Commission, not the Mayor.

Dave Erickson said he owns a few liquor licenses and all of his staff have been willing to wear masks. He said he is frustrated by the lack of communication and transparency. There was a Liquor Control Board meeting last week that was cancelled, he said, and then the Emergency Executive Order was put in place. He said he had no advance warning and he and his staff have been following the mandates and recommendations and will continue to follow them. Livelihoods are being affected, he said, and he has had to lay-off half of his staff and those people no longer have a job and he does not know when he will be able to get them employed again. He said he wants to have enough lead-time when the mandates are reversed so he can get things in order and know what is expected. Bar and restaurant owners have been put in a bad light and have received a lot of the blame, he said, and he asked why bars and restaurants are taking all of the financial responsibility for this pandemic and other industries are not included. He said he wants to keep people safe; however, he is also wants to be sure people can have their livelihood.

Commissioner Strand said he commends the Governor for making the right decision; however, the City still needs to step up engagement and involvement with the citizens. One of his concerns with occupancy is the City is putting the burden on the businesses and not adequately on the people who are responsible for taking the pandemic through the business’ front doors. He said he hopes individual participation with an accountability expectation will flatten the curve until there are better treatments, vaccines and more knowledge.

Commissioner Preston said bars and restaurants are where groups gather who are not wearing masks or social distancing and then as alcohol is introduced, behaviors get worse. She said there are many bars and restaurants who are following the guidelines and she does not want to punish them. Cass County will end up in the Critical Red category if this is not tackled, she said, and there needs to be some interventions.

Commissioner Gehrig said government is so fixated on this one problem that they are ignoring the other problems, no matter how real or destructive they are, in order to create an illusion that government is fixing the problem due to the fact that trying is all that matters. He said in regards to the State and local mandates, he could point out the First Amendment. The mandate threatens weddings, funerals, baptisms, religious gatherings at Christmas and Thanksgiving. He said the First Amendment is about basic freedoms, the freedom to assemble and the freedom to associate. He said if someone is concerned that their neighbor will call the authorities, the City created a phone number in the mandate, which to him is very “1984.” He said the mandate is arbitrary when it limits weddings to 25 percent. Why not 10 percent, why not 33 percent, he asked. Bars are limited to 50 percent, he said; however, the original mandate on November 13th said 25 percent. What changed in two days, he asked. On Page 2 of the mandate, it states that governmental entities are exempt from the order, he said, which is more of the “do as I say, not as I do.” Livelihoods are being destroyed, he said, and closing restaurants and businesses makes people unemployed, which increases alcoholism, drug abuse, domestic abuse, hunger, homelessness and mental health problems. The government is creating all of these new problems in order to fix one problem, he said, and, yes, COVID-19 is an emergency; however, is this health crisis the same as a flood, he asked. The powers are the same, he said, and there is money that can be accessed for floods if there is an Emergency Declaration. He said the Mayor can make an Emergency Declaration or a law stating, for instance, that someone cannot be on a dike after 9 p.m. and something like that has to happen immediately and cannot wait for a meeting of the City Commission. He said there was an Emergency Declaration on a Friday that was not going into effect until Monday, then it was paused because of what the State did, then it went into effect at 12:30 p.m.; therefore, it is obvious this was not a time-critical thing where the Mayor needed to make these decisions without the Commissioners. He said he does not blame the Mayor, this is the hand he has been dealt and he believes the Mayor is doing the best he can; however, Fargo needs to get back to normal government where five Commissioners debate and decide the issues and then answer to the people who voted. He said government is not one man and he will not be a bystander.

Commissioner Piepkorn said the City is discriminating and asked why all retail establishments, not just bars and restaurants, are not at 50 percent occupancy. He asked what the City is going to do to reduce those businesses’ taxes by 50 percent. It is easy to point to someone else and say they have to sacrifice, he said.

Mayor Mahoney said the Governor has an economic package for bars and restaurants with $25,000.00 per business and hopefully there will be another federal aid package. He said he knows it is difficult for bars and restaurants; however, that that is where most COVID-19 spread is happening. He said if the Emergency Declaration is rescinded, a fair amount of federal money would be rescinded, which would put a strain on the City’s finances.

Commissioner Strand said it never occurred to him that City Commissioners would vote to end an Emergency Declaration. He said Fargo and North Dakota are already on the national news as the hottest spot in the country and possibly the world. He said he understands the rhetorical debate; however, if this is not a unanimous decision, then every Commissioner needs to show up at City Hall every day, get involved and lead and not just criticize.

Commissioner Gehrig said this is a health emergency, not a flood and to have the Mayor run the City like it is flooding is not appropriate. He said he finds out about major decisions in the newspaper, he is not in the loop and that is unacceptable. He said he is taking back his control of the City, which he was elected to help lead – one of five, not one. He said other Commissioners can abdicate their responsibility to the Mayor; however, he will not. He said there is a long list of repercussions due to these mandates and people talk about the economy; however, it is not money or stuff, people need jobs, it matters and he does not want the Mayor voting for him.

Mayor Mahoney said he wants to clarify that he did send emails to the Commissioners regarding the mandate and Commissioner Gehrig responded via email saying he would not support it. He said if Commissioners do not want emails, he would call before he releases anything. His door is open every day, he said, and he is happy to talk to any of the Commissioners.

Commissioner Strand said everyone agrees that small businesses are jeopardized and there are many economic grants and loans available, he said; however, people are falling through the cracks. He said the City needs to listen to the business community and act urgently due to the fact that there are people facing evictions from their homes and apartments and businesses are also struggling to make the rent.

Faith Dixon and Glenn Knudson spoke about the mandates.
Commissioner Gehrig moved to end the City of Fargo’s Emergency Declaration, effective immediately.

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

Public Comment Period to be Included on Every Agenda Going Forward:
Commissioner Preston said she is concerned about not having public comments at City Commission meetings. She said public comments are offered at every other public meeting; however, the City Commission dropped the public comments due to the COVID-19 restrictions. She said virtual public comments are allowed at other are meetings and she does not understand why the City Commission could not do that as well.

Communications and Governmental Affairs Director Gregg Schildberger said if the City Commission were seeking virtual comments from the public during its meetings, the issue would be with the total number of people allowed in a “virtual room” at one time. He said once a maximum number of people is reached, no others can be admitted. He said there cannot be one virtual room for those who are going to speak during other segments of the meeting and another for those who are seeking to speak during the public comment period. If the City Commission suggests that the public have the virtual opportunity to speak at the beginning of the Regular Meeting, he said, an option could be to allow them to log in to speak for the first half hour, then have them log out of the online virtual room and watch the rest of the meeting on one of the City’s other viewing platforms. Once the restriction numbers change, he said, the City Commission could go back to in-person public comments. He said the challenge previously was the number of people in the room who just wanted to listen to comments. He said there should be limits in the virtual room to only those making comments to ensure adequate space exists for all parties. In the past, he said, when the physical Commission Chambers were full and only a few people spoke, the rest in attendance were there only to listen and due to current occupancy limits, this option cannot be offered. At that time, he said, when in-person observers were offered the option to watch the meeting from the atrium where they could still listen and see the meeting, no one was interested in doing so.

Commissioner Preston said there have been some extraordinary meetings with many people in the room and public comments should be allowed for 15 or 20 minutes and the number of people who make comments can be limited.

Mayor Mahoney said City Commission meetings attract more people than any other meetings, where perhaps three or four people want to comment. He said during a City Commission meeting, sometimes there are 20 or more people who want to speak.

In response to a question from Commissioner Gehrig asking why have public comments at the beginning of the meeting, Commissioner Preston said that allows individuals to provide input into decisions that will be made. She said if the comments are at the end of the meeting, the decisions have already been made.

Executive Assistant Kember Anderson said she is not opposed to having public comments at the beginning of the meeting; however, Public Hearings are published and state that the start time of the Public Hearings will be 5:15 p.m. She said the start time of the Public Hearings may have to be changed.

Commissioner Preston said public comments could go until 5:15, then do additional comments after the Public Hearings.

Commissioner Strand said public comments were paused due to the pandemic; however, there is immense interest in communicating from the public. Commissioner Preston’s approach gives the City Commission a chance to revisit public comments; however, it has to be managed, it cannot be arbitrarily deciding one moment to the next who gets to speak and who does not. He said it would be better to have a policy.

Commissioner Gehrig said he is hesitant to vote for this due to the fact that it is an order and to change it, the City Commission would have to revote or reconsider. He said he will vote “no;” however, he is OK with putting it somewhere as a policy.
Commissioner Preston moved that a public comment period be included on every Agenda going forward and to be accommodated in person or virtually as needed.

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

Commissioner Preston moved that the Board adjourn to 5:00 o’clock p.m., Monday, November 30, 2020.

Second by Strand. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 6:36 o’clock p.m.