Fargo City Commission - January 25, 2021

The Regular Meeting of the Board of City Commissioners of the City of Fargo, North Dakota, was held in the City Commission Chambers at City Hall at 4:00 o'clock p.m., Monday, January 25, 2021.
The Commissioners present or absent were as shown following:
Present: Gehrig, Preston, Strand, Mahoney.
Absent: Piepkorn.
Mayor Mahoney presiding.

Commissioner Strand moved that the Board retire into Executive Session regarding the Airport Authority’s proposed amendment to the January 14, 2020 Memorandum of Understanding (MOU) between the City and the Airport Authority and regarding other alternative or additional terms for the amendment of the MOU, the City Commission’s discussion of such matters, if held in public, would undermine the City’s negotiating position with the Airport Authority with respect to the proposed amendment and, with respect to such other terms the City may wish to consider, such discussion, if held in public, would adversely affect the bargaining position of the City and would have an adverse fiscal effect on the City. This Executive Session being authorized pursuant to N.D.C.C. Section 44-04-19.1(9).
Second by Gehrig. All the Commissioners present voted aye and the motion was declared carried.

At 4:03 o’clock p.m. the Board moved to the Red River Room to discuss said matters in Executive Session.
Members present were: Gehrig, Preston, Strand, Mahoney.

At 4:15 o’clock p.m. Commissioner Piepkorn present.

The Executive Session closed at 4:44 o’clock p.m. and the meeting reconvened in public session at 5:00 o’clock p.m.
All Commissioners present.
Mayor Mahoney presiding.

Commissioner Strand moved the Municipal Airport Authority’s offer regarding the July 1, 2021 “notice to terminate” deadline be accepted and the Memorandum of Understanding with the Municipal Airport Authority be amended accordingly.
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.

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

Minutes Approved:
Commissioner Preston moved that the Minutes of the Regular Meeting of the Board held on January 11, 2021 be approved as read.
Second by Gehrig. 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 an Ordinance Rezoning Certain Parcels of Land Lying in the Proposed Arcadia Park View Addition to the City of Fargo, Cass County, North Dakota; 1st reading 1/11/21.

2. Findings of Fact and Order of the Board of City Commissioners of the City of Fargo for property located at 1021 10th Street North.

3. Pledged securities as of 12/31/20.

4. Applications for Games of Chance:
a. Outdoor Adventure Foundation for a raffle and raffle board on 3/20/21.
b. St. Joseph’s School for a raffle on 3/20/21.
c. NDSU Saddle and Sirloin Club for a raffle on 4/21/21.
d. St. John Paul II Catholic Schools for a raffle on 4/24/21.

5. Negative Final Balancing Change Order No. 1 in the amount of -$37,058.50 for Project No. PR-20-B1.

6. Task Order No. 7 with Houston Engineering in the amount of $163,500.00 for Project No. FM-21-A0.

7. Speed limit reduction along 40th Avenue North from Old Highway 81 to Cass County Highway 31 from 55 mph to 40 mph, effective 2/1/21.

8. Speed limit reduction along 19th Avenue North from the I-29 east ramp to Dakota Drive from 50 mph to 40 mph, with an implementation date to be determined by the NDDOT.

9. Access Easement (Storm Sewer Easement) with Southeast Cass Water Resource District (Project No. UR-21-A1).

10. Memorandum of Understanding Regarding Construction and Maintenance with Park District of the City of Fargo (64th Avenue South Borrow Pit).

11. Access Agreement with Southeast Cass Water Resource District (Project No. BN-20-A0).

12. Bid advertisement for Project Nos. PR-21-A and PR-21-B.

13. Permanent Easement (Fire Service Surface Access Easement) with Craig Enclave OG, LLC.

14. Purchase of Service Agreement – Restricted Funding with the ND Department of Health for HIV.HCV Counseling, Testing and Referral (CFDA #93.940).

15. Contract Agreement with CoSchedule for Breastfeeding Friendly Workplace Services.

16. Purchase of Service Agreement with the ND Department of Human Services to promote Parents Lead program in the community.

17. Benefit Plan Agreement with BCBSND and Group Insurance Policy for Dental Benefits.

18. Reallocation of $20,000.00 in recaptured Red River Task Force COVID-19 funds to process final requests for housing assistance administered by SENDCAA.

19. Genfare Subscription and Services Agreement.

20. Amendment No. 6 with KLJ, Inc. in the amount of $222,359.98 for the Ground Transportation Center Remodel.

21. Bid award to Hawkings Water Treatment Group in the amount of $524.40 per ton, or about $80,000.00, for 2021 for chlorine at the Water Treatment Plant (AFB21012).

22. Bills in the amount of $5,832,473.72.

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.

Change Order No. 2 for Improvement District No. BN-20-C1 Approved:
Commissioner Strand moved Change Order No. 2 for an increase of $3,947.43 for Improvement District No. BN-20-C1 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.

__Change Order No. 3 for Improvement District No. BN-20-C1 Approved:
Commissioner Strand moved Change Order No. 3 for an increase of $15,624.06 for Improvement District No. BN-20-C1 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.

Final Balancing Change Order No. 1 for Improvement District No. AN-20-A1 Approved:
Commissioner Strand moved Final Balancing Change Order No. 1 for an increase of $1,162.00 for Improvement District No. AN-20-A1 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. 3 for Improvement District No. PN-18-B1 Approved:
Commissioner Strand moved Negative Final Balancing Change Order No. 3 in the amount of -$155,786.24 for Improvement District No. PN-18-B1 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. 1 for Improvement District No. PR-20-E1 Approved:
Commissioner Strand moved Negative Final Balancing Change Order No. 1 in the amount of -$48,835.11 for Improvement District No. PR-20-E1 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.

Water Main Replacement, Street Reconstruction and Incidentals Improvement District No. BR-21-A1: __ Protests Received and Declared Insufficient:__
The Statutory Resolution of Necessity for the construction of Water Main Replacement, Street Reconstruction and Incidentals Improvement District No. BR-21-A1 in the City of Fargo, North Dakota, was duly published in the official newspaper for the City of Fargo, North Dakota on December 23 and 30, 2020 and protests representing less than one 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 Water Main Replacement, Street Reconstruction and Incidentals Improvement District No. BR-21-A1:
The bids for Water Main Replacement, Street Reconstruction and Incidentals Improvement District No. BR-21-A1 in the City of Fargo, North Dakota were opened at 11:45 o'clock a.m., January 20, 2021 and the bids were found to be as follows:

Northern Improvement Company Fargo, ND
Bid: $3,516,249.36

KPH, Inc. Fargo, ND
Bid: $3,753,819.85

Dakota Underground Company Fargo, ND
Bid: $3,888,492.55

Contract for Water Main Replacement, Street Reconstruction and Incidentals Improvement District No. BR-21-A1 Awarded to Northern Improvement Company in the Amount of $3,516,249.36:
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 Water Main Replacement, Street Reconstruction and Incidentals Improvement District No. BR-21-A1; and
WHEREAS, The Board of City Commissioners of the City of Fargo has considered the bids received January 20, 2021 for Water Main Replacement, Street Reconstruction and Incidentals Improvement District No. BR-21-A1 in the City of Fargo, North Dakota; and
WHEREAS, The City Engineer's tabulation of the bids received for Water Main Replacement, Street Reconstruction and Incidentals Improvement District
No. BR-21-A1 shows the bid of Northern Improvement Company of Fargo, North Dakota, in the sum of $3,516,249.36 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 $3,516,249.36 is the lowest and best bid received.
BE IT FURTHER RESOLVED, That the contract for Water Main Replacement, Street Reconstruction and Incidentals Improvement District No. BR-21-A1 in the City of Fargo, North Dakota, be and the same is hereby awarded to Northern Improvement Company for the sum of $3,516,249.36, 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.

No Protests Received for Water Main Replacement, Storm Sewer, Street Reconstruction and Incidentals Improvement District No. BR-21-C1:
The Statutory Resolution of Necessity for the construction of Water Main Replacement, Storm Sewer, Street Reconstruction and Incidentals Improvement District No. BR-21-C1 in the City of Fargo, North Dakota, was duly published in the official newspaper for the City of Fargo, North Dakota on December 23 and 30, 2020 and no protests have been filed in the office of the City Auditor within the legal protest period.

Commissioner Strand moved that the Board declare that no protests have been filed to the construction of Water Main Replacement, Storm Sewer, Street Reconstruction and Incidentals Improvement District No. BR-21-C1.

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 Water Main Replacement, Storm Sewer, Street Reconstruction and Incidentals Improvement District No. BR-21-C1:
The bids for Water Main Replacement, Storm Sewer, Street Reconstruction and Incidentals Improvement District No. BR-21-C1 in the City of Fargo, North Dakota were opened at 11:45 o'clock a.m., January 20, 2021 and the bids were found to be as follows:

Border States Paving, Inc. Fargo, ND
Bid: $3,097,221.28

Dakota Underground Company Fargo, ND
Bid: $3,256,748.76

Northern Improvement Company Fargo, ND
Bid: $3,274,860.72

KPH, Inc. Fargo, ND
Bid: $3,390,983.50

Contract for Water Main Replacement, Storm Sewer, Street Reconstruction and Incidentals Improvement District No. BR-21-C1 Awarded to Border States Paving, Inc. in the Amount of $3,097,221.28:
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 Water Main Replacement, Storm Sewer, Street Reconstruction and Incidentals Improvement District No. BR-21-C1; and
WHEREAS, The Board of City Commissioners of the City of Fargo has considered the bids received January 20, 2021 for Water Main Replacement, Storm Sewer, Street Reconstruction and Incidentals Improvement District No. BR-21-C1 in the City of Fargo, North Dakota; and
WHEREAS, The City Engineer's tabulation of the bids received for Water Main Replacement, Storm Sewer, Street Reconstruction and Incidentals Improvement District No. BR-21-C1 shows the bid of Border States Paving, Inc. of Fargo, North Dakota, in the sum of $3,097,221.28 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 Border States Paving, Inc. in the sum of $3,097,221.28 is the lowest and best bid received.
BE IT FURTHER RESOLVED, That the contract for Water Main Replacement, Storm Sewer, Street Reconstruction and Incidentals Improvement District
No. BR-21-C1 in the City of Fargo, North Dakota, be and the same is hereby awarded to Border States Paving, Inc. for the sum of $3,097,221.28, 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.

Presentation of the Human Relations Commission MLK Awards:
Mayor Mahoney said that typically the Martin Luther King Jr. (MLK) Awards have been presented in an event at the Fargo Theatre; however, it will be done differently this year.

Commissioner Stand said each year the Fargo Human Relations Commission (HRC) recognizes an adult, youth and an organization in the community who lead, advocate and volunteer.

Human Relations Commission Chair Matuor Alier said the HRC works to promote acceptance, respect for diversity and to discourage all forms of discrimination. He said since 2002, the HRC has honored individuals and organizations that serve Fargo, demonstrate the commitment to provide leadership to under-represented groups and make the community more welcoming and respectful as was modeled by Martin Luther King Jr. A video highlighting this year’s award winners, Clara Derby, Nola Storm and WIN-Liberia was shown.
Ms. Derby believes racial injustice is closely linked to environmental brutality. As a result, she is a strong advocate for Black Lives Matter (BLM), as well as a leader for climate and environmental changes. In response, she arranged the Climate Emergency March, combined with members of the BLM in Fargo, during September of 2020. She also organized a march against the abuse of people of color.
Ms. Storm is one of the co-founders and current Vice President of Growing Together Community Gardens, a project that encourages more than 150 New American families to plant and care for community garden plots. Last year, Growing Together donated more than 2,500 pounds of produce to the Emergency Food Pantry. While much produce is grown, the project and Ms. Storm have also succeeded in growing relationships between community members.
WIN-Liberia provides support for Liberian women and children in the
Fargo-Moorhead area. Founded by Precious Grapeh, the nonprofit caters to the specific needs of single mothers, youth and vulnerable adults by strengthening their traditions and core values. Services include mentoring, after-school programs and financial literacy education. WIN-Liberia has played an important role during the pandemic as it helps community members succeed through challenges brought on by economic loss and uncertain times.
The award winners each accepted their award and shared their appreciation for being recognized and for the continued support of the Board and the community.
Mayor Mahoney said the HRC received many nominations for the awards this year. He said it is important to be involved and these awards honor the diversity of Fargo and the work to making this a welcoming, respected community.

Compliance Deadlines Extended for Property Located at 717 3rd Avenue North: City Attorney Directed to Amend the Previous Findings of Fact and Order:
A Hearing had been set for July 13, 2020 on a dangerous building located at 717 3rd Avenue North.
At the July 13, 2020 meeting, the Hearing was continued to January 11, 2020.
At the January 11, 2021 meeting, the Hearing was continued to this day and hour.

Inspections Director Bruce Taralson said there was much discussion at the last meeting and he summarized what has been done since that time. He said he received a visit from Dawn Morgan proposing some funding sources and conduits for the project. He said the deadline to submit items for the Commission agenda is Thursday noon and at that time, he had not heard any information so he submitted a motion, the same as it had been prior. He said he hopes that the recent developments help to alleviate the issues and he has drafted an alternate motion. He said Plains Architecture is now also involved, which has a Board of Directors that is working with the Fargo Moorhead Heritage Society on funding. He said Ron Ramsay is still the owner and Kilbourne Group remains involved and has recommitted as project manager. He said the missing part now may be a contractor. He said some historic information was reviewed that he had not seen in the past; however, he does not believe it has an affect on what is being done, although if certain things are done such as a final use for the building, it will have an impact. He said some codes give historic exemptions; however, the goal is to make sure the building is safe in the end.

Dawn Morgan, Fargo Moorhead Heritage Society Treasurer, said she contacted the Fargo Moorhead Heritage Society Board of Directors and they unanimously approved moving forward with this project. Since they are an architectural organization and have a 501c3 to accept tax-deductible donations they offered to partner and act as fiscal agent, she stated.

Ron Ramsey said he has created a nonprofit, Plains Architecture and submitted an application for 501c3 status. He said he asked five people whom he knows and trusts to be on that board and they all know him and his intentions for the building. He said the building’s location works to collaborate with the Heritage Society, as well as other cultural institutions and in the future it could be a place for student seminars as well as a use the Historic Society may have.

In response to a question from Mayor Mahoney asking if he agrees with the alternative motion that Mr. Taralson submitted, Mr. Ramsey said he agrees.

Sheri Fercho, Fargo Moorhead Heritage Society Vice President, said this is a step in the right direction. They have looked to reorganize, she said, and one thing desired was a brick and mortar place and this is a good plan and good place for awareness of historic items in the community.

Nathan Larson, Fargo Moorhead Heritage Society Board member, said the Board is enthusiastic about the preservation of this building and future educational opportunities. He said he is also on the City of Fargo Historic Preservation Commission and this is the type of project that the Commission likes to see.

Greg Danz, Zandbroz, said he has people come into his store and ask about the Beebe house and its location. He said he hopes the City Commission will back Mr. Ramsey on this project.

In response to a question from Commissioner Preston asking if he can commit to the proposed timeframes and agree to the Heritage Society’s role, Mr. Ramsey said he agrees with them acting as fiscal agent, as does his Board. He said his responsibility is fundraising. He said a partnership with the Fargo Moorhead Heritage Society, as well as other similar organizations connected with design, could use it as a place to meet. He said he feels the timeline can be achieved although it is difficult to find someone in Fargo to do the work.

Commissioner Piepkorn said he would like Mr. Taralson to bring an update on the progress in 180 days.

Mr. Taralson said he is optimistic and feels that allowing the first 180 days to get the exterior compliant and to complete required engineering also allows time to determine the future use of the property and acquire a permit for the next one-year process to make that happen. He said the weather has been cooperative, although it is sometimes difficult to get contractors. Mr. Ramsey is working with a great group of people, he said, and he feels they can make it happen.

Commissioner Strand thanked Mr. Taralson and the Inspections Department for working tirelessly on this. He said it has been expected and demanded that they step up their actions; however, it was not anticipated what would happen if a historic building in distress was encountered. He said policies need to be examined to be certain there is a consideration for future historic buildings that may surface. He thanked the Fargo Moorhead Heritage Society for stepping up and seeing a vision, the Kilbourne Group and their volunteer work and passion. He said it is great news that it appears the vote tonight will not be to demolish this historic property.

Commissioner Strand moved to allow the owner of 717 3rd Avenue North to acquire a building permit within the next 180 days to complete all required exterior shell and engineering work; the work must be code compliant and meet the guidelines outlined for properties located in a Historic District ; prior to completing the work as outlined in the first permit the owner must acquire another permit which will allow for an additional 360 days to designate the use of the property and complete any additional work that may be required to be code compliant and to direct the City Attorney to amend the Findings of Fact and Order to reflect this compliance deadline and to allow the City of Fargo to remove the dangerous building if compliance is not reached by said deadlines.

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.

Community Development Block Grant (CDBG) and HOME Programs 2020-2024 Consolidated Plan Including the 2020 Annual Action Plan and Budget Approved:
A Hearing had been set for this day and hour on the Community Development Block Grant (CDBG) and HOME Programs 2020-2024 Consolidated Plan including the 2020 Annual Action Plan and Budget..
Community Development Planning Coordinator Tia Braseth said the 2020-2024 Consolidated Plan includes the Program Year 2020 budget and allocation (May 1, 2020 to April 30, 2021) and the Analysis of Impediments to Fair Housing Choice (AI). The exact amount of HUD funds each year is determined by Congress, she said; however, based on previous funding levels, the City estimates approximately $4,257.933.00 in CDBG funds and $3,225,575.00 in HOME funds over the course of the Five Year Consolidated Plan. Upon approval by the Board, she said, the Plans will be forwarded to HUD for final review and approval. Fargo expects to have available $1,086,725.00 in Community Development Block Grant (CDBG) funds and $495,115.00 in HOME funds, she said.

In response to a question from Mayor Mahoney asking if increased funding is anticipated, Ms. Braseth said at this time, for 2020, it is about the same as in the past and 2021 is not known as that Action Plan cannot be submitted prior to March. She said with all the changes at the federal level and COVID, it is difficult to know if there will be more funding.

Commissioner Strand disclosed to the Board that he is a founding board member of the Cass Clay Community Land Trust and while he does not have a personal financial interest in it, he wanted the Commissioners to have that information.

Commissioner Preston moved the submission of the 2020-2024 Five Year Consolidated Plan for Housing and Community Development, and the 2020 Annual Action Plan and budget be approved.

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.

Application Filed by Midway Metals LLC for a Five-Year Property Tax Exemption Approved:
A Hearing had been set for this day and hour on an application filed by Midway Metals LLC for a five-year new industry property tax exemption for a project at 3344 39th Street South where the applicant will manufacture rain gutter accessories and components. No written protests have been filed for the attention of the Board.
The Board determined that no person is present at this Hearing to protest or offer objection thereto.

Director of Strategic Planning and Research Jim Gilmour said the applicant would purchase the existing building subject to the Board’s approval of the tax exemption. The positions will pay between $20.00 and $28.00/hour, he said.

Ryan Aasheim, Greater Fargo Moorhead Economic Development Corporation (GFMEDC), said this company is new to the region and is headquartered out of Omaha, Nebraska. It is a new-patented technology with a focus on northern-tier climates to keep gutters free of clogs, ice and debris, he said. The
Minneapolis-St. Paul market is of interest to them, as well as Canada/international markets. He said they are starting with a few employees moving from Omaha, and then adding 21 to 25 additional jobs over the course of the next five years.

In response to a question from Commissioner Gehrig asking whether the business would still move here if they were not given the incentive, Eric Bachman, Midway Metals LLC (via conference call), said it would have to be revisited. He said it is a possibility; however, there is not a determination made to that effect at this point.

Commissioner Piepkorn moved that the application filed by Midway Metals for a five-year, 100% property tax exemption for a project at 3344 39th Street South pursuant to Chapter 40-57.1, NDCC be approved.

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

Resident Comments:
Kristina Klinkhammer and Alexander Simon spoke about pandemic fear and control, Christopher Coen spoke on public safety issues and an incident at The Arbors housing complex.

At 6:05 p.m. the Board took a five-minute recess.
After recess: All Commissioners present. Mayor Mahoney presiding.

COVID-19 Update:
Mayor Mahoney said COVID numbers continue to decrease, the daily positivity rate is down to 3.5 percent, and at one time it was up to 17 percent and hospitalizations continue to decline. Of interest now is vaccine availability, he said, and 74,000 doses have already been administered and Fargo Cass Public Health will join Sanford and Essentia to administer vaccines by appointment at the former Gordmans building.

Discussion Regarding the City of Fargo Reducing Restrictions to Match the State:
Mayor Mahoney said when the Governor came out with new recommendations, the City was synced in allowing 65 percent business occupancy.
Fargo Cass Public Health Environmental Health Practitioner Chris Ohman (via conference call) said numbers depend on the square footage of the venue with a maximum capacity. He said his department makes recommendations based on the State’s identified risk level. The major difference currently between local and state is that Fargo has extended the mask requirements, he said, otherwise Fargo is in lockstep with the State’s recommendations.

Commissioner Piepkorn said it causes confusion for the State to have one rule and the City another. He said it would be different if Fargo had higher numbers than the rest of the State; however, that is not the case. He said while he feels people should be encouraged to wear face coverings, at this point the numbers do not justify the mandate. He said if the numbers increased again, it could be reconsidered.

Mayor Mahoney said there is a super-spreader in the State of Minnesota and the concern is that Williams County is seeing a climb in numbers and what may happen in the next two weeks. He said the way this virus works, if anticipated too soon, things can bounce back up.

Commissioner Strand said he and the public are getting closer to the point of agreeing with Commissioner Piepkorn; however, he feels it best to give the vaccine rollout a bit more time and see if a surprise second surge can be avoided.

Commissioner Piepkorn said this is infringing on people’s rights, while it should be encouraged to wear masks, social distance and wash hands; however, continuing the mandate when the numbers do not justify it damages leadership’s credibility.

Commissioner Preston said from the conversations she has had with Fargo Cass Public Health, they support keeping the mask mandate in place until more vaccinations have been completed. She said it is difficult to know what that number should be; however, it can be revisited in two weeks.

Commissioner Piepkorn moved to follow the State of North Dakota guidelines for COVID-19 and drop the local mask mandate.

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

Discussion about Non-compliant Liquor Establishments:
Police Chief David Zibolski said there were two businesses that had difficulties with compliance; however, in the last 30 days there have not been further issues. He said at the January 20, 2021 Liquor Control Board meeting, he recommended the information be received and filed so in the event of further issues it could be brought to the Board and that information would be readily available. He said 374 business checks have been done since November 16th and 93% were compliant and 6% were provided education and gained compliance. He said now with expanded capacity there is a limited enforcement piece going forward.

Commissioner Preston said her concern was that the timing for the Liquor Control Board meetings did not correlate well with the compliance checks. She said it may have been wise to have a Special Meeting and her hope is that the non-compliance is a consideration when the liquor license is renewed.

City Auditor Steve Sprague said the reports on those two businesses have been placed in the files.

Commissioner Gehrig said the Liquor Control Board does not have the authority to penalize. He said they received and filed the information and did not take action; however, the City Commissioners could take action.

Commissioner Preston said the Liquor Control Board exists for a reason, to look at the data, digest it and make decisions about it. She said it certainly is not as big an issue as things like shootings and stabbings; however, it is a long-term issue and she would ask it be part of the consideration when that particular license comes up for renewal.

Commissioner Gehrig said it is not as though the Liquor Control Board was not reviewing what happened. The Liquor Control Board looked at it, decided it was not that big a deal so they received and filed it, he said.

Discussion on Staff Advocating for Certain Bills at the State Legislature:
Commissioner Gehrig said now that the Legislature is in session, requests from organizations or legislators have started to come for staff to give opinions, which look like they represent the City of Fargo. He said in the past, votes have been taken for the official stance of the City and a Commissioner could say they disagree; however, it does not represent the majority and here is his dissenting opinion. He said he wants to revisit that process, there is a new Board member and he wants to discuss how this will be done. He said the draft document says if the majority take a vote, the minority cannot say anything, which he does not like.

Mayor Mahoney said a Commissioner can say something; however, to speak if not in the majority, it would be as a citizen. It would be a City of Fargo official policy just like that of the School Board, if the Board takes one policy that is what is supported; however, one can speak against it as a citizen.

Commissioner Gehrig said if something is being talked about at the State level, he will speak up and he will say, “My name is Tony Gehrig and I am a City Commissioner, I do not represent the majority, the City of Fargo disagrees with me, but here is the dissenting view.” He said as long as he can do that, he is okay with it.

Commissioner Piepkorn said he would encourage Commissioner Gehrig to not say he is a City Commissioner, to say he is an individual. It is within an individual’s right to speak; however, if one says “I am a City Commissioner” that implies it involves the City of Fargo. One has to be very careful to say they do not represent the views of the City of Fargo, he said.

Commissioner Preston said the issue is that it is not clear how to get to a point of having a position from the City. There has been staff testifying, so does that also apply to them, she asked, that they are there to present their position in support or opposition based on their position and not representing the full City of Fargo? She said she is concerned there is not a process in support or opposition.

Mayor Mahoney said when the topic came up, it was determined that the best way may be for the Board to have a weekly discussion on the bills, get an opinion of the Commission and staff would support only bills that follow policy. He said the idea is to meet Fridays to review the bills being heard the next week and then influence whether to testify or not and oppose, support or have a neutral position. He said a variety of topics come up where the City has local expertise and are asked for input. A weekly discussion would be the way to give an opinion, he said, and majority vote would be the opinion of the group.

Commissioner Gehrig said there is a difference between the Police Chief testifying as the Police Chief of Fargo or speaking as an experienced law enforcement member. City employees with a different opinion than what the Board directs can go as private citizen and state they disagree; however, cannot say they represent the City. He said in his opinion, elected officials are different. He said just so the Board is aware, if he disagrees and feels strongly enough on a topic he will send a letter and may go to the Legislature, and will not say he represents the majority, he will say he is a single City Commissioner representing the minority. He said some do not like it and that is okay; however, it is not illegal and he is going to do it. He said he hopes the process works and the majority will be the official stance for each issue.

Commissioner Piepkorn said he would not be comfortable using City letterhead for individual views. He said there have been issues in the past and one must be very careful to say, “I am an individual representing myself, I am not speaking for anyone else.”

Commissioner Strand said he would not want to stifle speech; however, there are appropriate lanes for speech and if you are speaking as a citizen, then you speak as a citizen. Other people can identify you in your life, he said; however, you know you are speaking as a citizen. In that case, he said, one would do it on their own time without reimbursement for mileage and expense from the City. Otherwise, he said, if one is representing the City with the blessing of a department head or the Board, he is all for it.

Commissioner Gehrig said he is an elected official and when he speaks as a City Commissioner, yet dissents against the majority of the Board, he is still representing a portion of the residents and it is not only himself saying it. It holds more weight to say, “I represent 20,000 or 25,000 people in the City of Fargo” versus one person’s opinion, he said, and he has been elected to give his opinion and to vote. He said he would not be disrespectful or do it for no reason and he has done this about three times, by writing a letter saying he represents the minority and here is why.

In response to a question from Mayor Mahoney asking if there is a policy covering the use of City letterhead, City Attorney Erik Johnson said he does not recall a vote on a policy. His general recollection, he said is that an individual writes a letter on City letterhead, so public property, for some purpose contrary to the majority is a pretty narrow question and not a significant use of property. He said he does not recall if it was voted on; however, an understanding was gained.

Commissioner Preston said if it happens someone uses letterhead and someone else does not support that, the way the Board can deal with them is to censure them. She said it is not an issue of telling someone they cannot do it, it is something the Board needs to deal with rather than trying to shut down speech.

In response to a question from Commissioner Strand asking if the Board meets Fridays to discuss legislative issues, would it be a public noticed meeting, Mayor Mahoney said it would be a Public Meeting with the only item being legislative issues and the Commissioners could vote in support or opposition.

Legislative Update:
City Administrator Bruce Grubb said he and Assistant City Administrator Michael Redlinger have been reviewing the bills and hearings that impact the City. He said a problem that has been encountered with Legislative Hearings is that when the City Commission only meets every other week, there are two weeks of bill hearings that occur and it is not known what bills will be heard until the Friday prior to them being heard. He said that is why he and the Mayor thought additional City
Commission meetings for an hour on Fridays to focus solely on upcoming bill hearings for the following week would allow the Board to discuss and take a position on bills.

The Board reviewed the Legislative Committee Hearings List for the week of January 25-29, 2021 and took action on the following:
HB 1277 - Bill to increase the residential property tax exemption for new construction. Original bill extended the period from 2 to 5 years, the bill has been amended back to 2 years - Action was delayed until the next meeting.
HB 1348 - A bill to prohibit the testing of wastewater. Unanimous approval to support.
HB 1259 - A bill requiring a Public Hearing and City Commission approval to test/sample wastewater. Unanimous approval to support.
HB 1287 - A bill relating to overdose prevention and immunity.
Commissioner Piepkorn moved to support the original bill. The motion died for the lack of a second.

Commissioner Strand moved to endorse and support the Police Chief’s testimony that would reflect the amendments recommended by local Harm Reduction advocates and the State’s Attorney’s Office for HB 1287.

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

HB 1414 – A bill related to a deduction for retailer remittance of sales tax (State portion only). There was unanimous approval to change the position from oppose to monitor.
Commissioner Strand said there are Boards and Commissions such as the Native American Commission that may have issues they are concerned about and he would suggest being open to those appointed to bring voice to their communities.

Application for Abatement or Refund of Taxes #4494 for the Doublewood Inn, LP Denied:
City Assessor Michael Splonskowski said the application for Abatement or Refund of Taxes #4494 filed by Fredrikson & Byron, PA representing the Fargo Doublewood Inn, LP located at 3333 13th Avenue South was discussed at the January 11th meeting. He said the applicant requested a reduction in value from $7,990,500.00 to $5,000,000.00 in 2018; however, the request was changed to $6,348,051.00 at the January 11, 2021 meeting, or about $53.00 per square foot. Action on the application was delayed two weeks to allow time to consider the income approach, he said. Upon review of the submitted income approach, he said, he does not feel it supports the requested value reduction due to the approach presenting the investment value and not the market value and no support for the income approach was presented. True and full value as defined by statute means the market value has to be considered, he said, not the investment value, which can be different from the market value due to investor requirements such as levels of risk or return on investment. He said market values are established by having the data from the market and then analyzing the data to show the value. The income approach is the data of the subject property itself, he said, with no supporting evidence from comparable transactions showing market incomes, vacancy rates or income and expense ratios. He said his office does not have the information needed to support or verify this type of income approach. For the purposes of mass appraisal, the Assessor’s office rarely uses this approach since when sending out surveys, he said they are unable to get reliable information to verify that it meets market conditions. His office presented an income analysis only on exhibit eight for this write-up using the gross income multiplier, he said, which supports their value from market numbers for support only and not to establish the 2018 value, which was $7,990,500.00 or about $66.00 per square foot. He said the median sales for eleven similar properties sold in the $82.00 per square foot range and a median valuation of twenty similar properties in the $91.00 per square foot range. He said this shows the subject is on the low end of the valuations and amongst the lowest in the City of comparable properties, thus the valuation does not appear, unreasonable, arbitrary or capricious. He said the sales method is recognized by all appraisal authorities and the State Tax Commission as one of the more accurate methods of estimating value. Due to the absence of market evidence for the presented income approach, he said, the reduction is not supported, the recommendation is for denial of the appeal and that the 2018 value be retained as certified.

Mike Raum, an attorney at the Fredrikson & Byron Law Firm, said they provided information on their hotel; however, are not able to provide information on other hotels. He said as far as income approach, there is a capitalization rate that someone would pay to buy an income stream, and he feels the best indication of the value of a property from an income perspective is the information for that particular property is what was provided. He said the law is clear their value or the existing value does not have to be picked, the Board is free to set the value within the range of evidence presented. He said he would request the assessment be reduced as requested.

Commissioner Strand said he is concerned going forward that, if looking at every hotel having a significantly diminished business model from reduced occupancy rates, to use the income model would result in a gutting of the tax base with some of these market sectors. He said he would guess market conditions actually translate into sales and if someone were to buy a business, it would be based on the income, history and compatibles. He said he is hesitant to allow this request.

In response to a question from Commissioner Preston asking if the income approach is ever used, Mr. Splonkowski said his office does not use it due to not getting the information. He said surveys have been sent out at various points and business owners are not forthcoming with the requested information. He said in order to use that approach, much more support would be necessary. He said it is allowed by State law as one of the accepted approaches to value.

Commissioner Gehrig moved that the application filed by Fredrikson & Byron, PA for abatement or refund of taxes #4494 requesting the valuation for 2018 be reduced from $7,990,500.00 to $6,348,051.00 on property located at 3333 13th Avenue South be denied.

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.

Appropriate Staff Directed to Submit a Tax Increment Financing (TIF) Application to the City’s Financial Advisers for the Redevelopment of Property at 2301 University Drive South:
Director of Strategic Planning and Research Jim Gilmour said the proposed redevelopment project is an 11-acre site that includes a vacant Kmart building, about 90,000 square feet and a Burger King restaurant. The project would demolish existing buildings, he said, and prepare the site for construction of about 170 housing units, including 34 units to be set aside for affordable housing, a grocery store and stand-alone commercial buildings. He said the developer tried to a find a solution to reuse the vacant Kmart building; however, it was determined to be economically unfeasible. Infill development is a priority within the GO2030 Comprehensive Plan, he stated, and there is an obvious need for redevelopment along the South University corridor. The current taxable value of the vacant lot site is $5.9 million, which is greater than market value, he said, and the total site development is projected to be about $35 million and will not otherwise occur but for the assistance provided through TIF. He said he has heard some neighborhood concerns about traffic, which can be addressed in the future. The project would require rezoning so there will be public hearings and notifications he said. .

Austin Morris, Enclave Development (via conference call), said this is an excellent redevelopment opportunity on the South University Drive corridor.
Tim Gleason, Enclave Development, said they have been working on the development for about a year focusing on a retail redevelopment on the site located on University Drive where approximately 30,000 cars travel per day. The Kmart property has been vacant for 13-14 months. He shared some potential site uses and said there are interested parties in the potential inline retail standalone building, multi-family housing, office and potential grocer and some single tenant pads.

Commissioner Gehrig said he agrees it is a blighted area; however, it is in the center of Fargo and a big opportunity for somebody to do something awesome. He said much of this is for more apartments and the Board has said subsidizing apartments would stop, yet it seems to be exclusively what is being done these days. He said the stated goal of incentives is primary sector and this is not right for the City’s incentives.

Mr. Gilmour said this meets TIF policy. The Payment in Lieu of Tax Exemption (PILOT) policy does not generally provide an exemption for new, just generally speculative office space, retail or restaurants, he said. Generally the goal for a TIF is to clean up a blighted site, rather than job creation, he said.

In response to a question from Commissioner Strand asking if the property has changed hands already, Mr. Gilmour said Kmart leased from DFI Dakota based in Georgia who has been looking at redevelopment concepts for a number of years.

Commissioner Piepkorn said this is only a preliminary round to find out the potential and it will be voted on again. He said he agrees the City does not need to subsidize apartments in south Fargo; however, it is good to proceed and find out the potential.

In response to a question from Commissioner Preston asking if the analysis splits PILOT dollars from TIF to see the impact, Mr. Gilmour said the financial adviser would look at the rate of return if there were no TIF granted, and the level of return with assistance. If the rate of return is 2 percent, for example, he said they would look for some other use for the property such as storage until the market changes.

Commissioner Preston says she has concerns about PILOT being used in this case when the need is unknown.

Mr. Gilmour said there is mention of PILOT dollars in the letter anticipating
low-income housing in the project.

Commissioner Piepkorn said Fargo’s apartment vacancy rates are good and next year, with the FM Diversion project starting, there may be a housing shortage. He said he is very optimistic for the future and expects an economic boom. He said hopefully the pandemic goes away and he feels 2021 will be a great year for the City.

In response to a question from Commissioner Strand asking if the purchase of the property is contingent upon the City granting TIF support, Mr. Gleason said it is.

Mr. Gilmour said he has been working to get an update on affordable housing. He said he does know there is a very long waiting list of elderly people trying to get on the affordable housing list at Fargo Housing Authority and other nonprofits. He said as soon as low-income housing opens up, there are plenty of people to fill it.

Commissioner Piepkorn moved appropriate staff be directed to submit a TIF application to the City’s financial advisers for the redevelopment of property at 2301 University Drive South.

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.

Applications for Property Tax Exemptions for Improvements Made to Buildings Approved:
a. Janice Knecht, 1539 14th Street South (5 year).
b. Allison Kenniger, 3701 Fairway Road North (5 year).
c. Audrey and Jordan Wermager, 2410 16th Street South (5 year).
d. Chelaine and Joshua Anderson, 3014 Elm Street North (5 year).
Commissioner Piepkorn moved the applications be approved.

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.

Emily Sargent Appointed to the Native American Commission:
The Board received a communication from Mayor Mahoney recommending that Emily Sargent be appointed to the Native American Commission to fill the vacancy created by the resignation of Heather Keeler whose term would have expired on June 30, 2023.
Commissioner Strand moved Emily Sargent be appointed to fill the unexpired term of Heather Keeper on the Native American Commission for a term ending June 30, 2023.

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.

Ken Enockson Reappointed to the Community Development Committee:
The Board received a communication from Mayor Mahoney recommending that Ken Enockson be reappointed to the Community Development Committee.

Commissioner Strand moved Ken Enockson be reappointed to the Community Development Committee for a three-year term ending December 31, 2023.

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.
Commissioner Strand moved that the Board adjourn to 12:00 o’clock p.m., Friday, January 29, 2021.
Second by Gehrig. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 7:35 o’clock p.m.