Fargo City Commission - July 26, 2021 Minutes

The Regular Meeting of the Board of City Commissioners of the City of Fargo, North Dakota, was held in the City Commission Room at City Hall at 5:00 o'clock p.m., Monday, July 26, 2021.
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: As of July 23rd, Fargo Cass Public Health has administered 48,624 doses of the COVID-19 vaccine and Cass County currently has a 60% one-dose coverage rate; the Fargo Public Library now offers notary services to the public; the Library continues to offer Outdoor Yoga for Beginners at the Carlson Library; the Library will participate in the Native American Community Picnic August 7th at Trollwood Park; and videos were shown including a remote-controlled lawn mower being used by the Public Works Department and a “Faces of Fargo” installment featuring Deputy Fire Marshall Dawn Stollenwerk.

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 Strand moved that the Minutes of the Regular Meeting of the Board held on July 12, 2021 be approved as read.

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

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

1. 2nd Reading and final adoption of the following Ordinances:
a. Amending Section 10-0103 and 10-0105 of Article 10-01 of Chapter 10 of the Fargo Municipal Code Relating to the Sale of Tobacco Products to Minors and Use and Possession by Minors Prohibited, Section 10-1002 of Article 10-10 of Chapter 10 of the Fargo Municipal Code Relating to Sale of Tobacco Products Through Vending Machines, Section 35-0103 of Article 35-01 of Chapter 35 of the Fargo Municipal Code Relating to Suspension of Authority to Sell Tobacco Products and Imposition of Administrative Penalties, and Section 1-0305 of Article 1-03 of Chapter 1 of the Fargo Municipal Code Relating to Classification of Ordinance Violations.
b. Amending Section 10-0102 of Article 10-01 of Chapter 10 Relating to Unlawful for Minors to Enter Liquor or Beer Establishments, 25-1509 and 25-1520 of Article 25-15 of Chapter 25 of the Fargo Municipal Code Relating to Restrictions on Sale, Service or Dispensing of Alcoholic Beverages and Penalty, and Section 1-0305 of Article 1-03 of Chapter 1 of the Fargo Municipal Code Relating to Classification of Ordinance Violations.
c. Amending Section 1-0305 of Article 1-03 of Chapter 1 of the Fargo Municipal Code Relating to Ordinances – Violation.
d. Rezoning Certain Parcels of Land Lying in Valley View Estates Second Addition to the City of Fargo, Cass County, North Dakota.
e. Rezoning Certain Parcels of Land Lying in Eagle Valley Fifth Addition to the City of Fargo, Cass County, North Dakota.
2. Findings of Fact, Order and Notice for property located 305 University Drive South.
3. Concur with the findings of staff and the Liquor Control Board and apply the penalty matrix to the liquor license violations identified at Brewtus Clubhouse.
4. Concur with the findings of staff and the Liquor Control Board and apply the penalty matrix to the liquor license violations identified at the Avalon.
5. Concur with the findings of staff and the Liquor Control Board and apply the penalty matrix to the liquor license violations identified at Chipotle.
6. Concur with the findings of staff and the Liquor Control Board and apply the penalty matrix to the liquor license violations identified at West Acres Bowl/Cactus Jacks.
7. Amended Gaming Site Authorization for Metro Sports Foundation at Brewtus Clubhouse.
8. Application for Games of Chance for bingo and a calendar raffle at Holy Spirit Catholic Church from 9/15/21 to 10/10/21.
9. Milestone No. 1 (Change Order No. 1) for a time extension to 8/20/21 for Project No. FM-19-A3.
10. Pipeline Easement with Northern States Power Company (Xcel Energy).
11. Land Use Agreement with Epic Gateway East Real Estate Holdings, LLC.
12. Payment to Dirt Dynamics in the revised amount of $116,138.87 for emergency sanitary sewer repair at 23rd Street and 1st Avenue South.
13. Receive and file General Fund – Budget to Actual through June 2021 (unaudited).
14. Bid award for a Technology Consultant to BerryDunn for planning and management of the financial operating systems upgrade project (RFP21029).
15. Agreement with Center Point Tactical LLC.
16. Notice of Grant Award with the ND Department of Health for water pollution – EPA block (CFDA #66.605).
17. Financial Award from the ND Department of Commerce/Division of Community Services for a ND Homeless Grant at the Gladys Ray Shelter.
18. Notice of Grant Award from the ND Department of Health and Human Services for gardening in the childcare setting (CFDA #93.898).
19. Request for out-of-grade pay for Michael Sanden at the Police Department effective 7/12/21.
20. Proposal from NewIntelligence for the conversion of the COGNOS report writing software (SSP21093).
21. Bid award to Strata Corporation for conduit and fiber for the City of Fargo (RFV21124).
22. Set August 9, 2021 at 5:15 p.m. as the date and time for a Hearing on a dangerous building at 711 10th Avenue North.
23. Change Order No. 1 in the amount of $5,160.00 and No. 2 in the amount of $60,000.00 for the Mid America Steel demolition.
24. Bid award to Bailey Nurseries, Inc. in the amount of $58,155.83 plus shipping for the 2022 spring tree order (RFP21122).
25. Bid award to HTP Energy in the amount of $772,286.00 for fuel purchase for the 1st and 2nd quarters of 2022 (RFV21123).
26. Task Order No. 2 with AE2S in the amount of $39,500.00 related to the development of a Revenue Adequacy Model for the Solid Waste Division.
27. ND Department of Transportation Section 5310 Transit Grant Agreement for mobility management activities (Contract No. 38210812).
28. Bills in the amount of $14,523,853.63.

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.

Change Order Nos. 1-5 for Improvement District No. FM-20-C0 Approved:
Commissioner Preston moved Change Order Nos. 1-5 for an increase of $221,143.38 (City portion $112,321.69) for Improvement District No. FM-20-C0 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.

No Protests Received for New Paving and Utility Construction Improvement District No. BN-21-K1:
The Statutory Resolution of Necessity for the construction of New Paving and Utility Construction Improvement District No. BN-21-K1 in the City of Fargo, North Dakota, was duly published in the official newspaper for the City of Fargo, North Dakota on June 23 and 30, 2021 and no protests have been filed in the office of the City Auditor within the legal protest period.
Commissioner Preston moved that the Board declare that no protests have been filed to the construction of New Paving and Utility Construction Improvement District No. BN-21-K1.

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.

Bids Received for New Paving and Utility Construction Improvement District No. BN-21-K1:
The bids for New Paving and Utility Construction Improvement District No. BN-21-K1 in the City of Fargo, North Dakota were opened at 11:45 o'clock a.m., July 21, 2021 and the bids were found to be as follows:

Master Construction Company, Inc. Fargo, ND
Bid: $845,213.55

Key Contracting, Inc. West Fargo, ND
Bid: $883,586.10

Northern Improvement Company Fargo, ND
Bid: $888,997.84

Fox Underground, Inc. West Fargo, ND
Bid: $918,293.05

Dirt Dynamics, LLC Fargo, ND
Bid: $934,546.84

Ryan Contracting Company Elko, MN
Bid: $952,878.00

Sellin Brothers, Inc. Hawley, MN
Bid: $1,095,116.35

Dakota Underground Company Fargo, ND
Bid: $1,138,685.30

Contract for New Paving and Utility Construction Improvement District No. BN-21-K1 Awarded to Master Construction Company, Inc. in the Amount of $845,213.55:
Commissioner Preston offered the following Resolution and moved its adoption:
WHEREAS, The City Engineer has prepared and filed a detailed statement of the estimated costs of New Paving and Utility Construction Improvement District No. BN-21-K1; and
WHEREAS, The Board of City Commissioners of the City of Fargo has considered the bids received July 21, 2021 for New Paving and Utility Construction Improvement District No. BN-21-K1 in the City of Fargo, North Dakota; and
WHEREAS, The City Engineer's tabulation of the bids received for New Paving and Utility Construction Improvement District No. BN-21-K1 shows the bid of Master Construction Company, Inc. of Fargo, North Dakota, in the sum of $ 845,213.55 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 Master Construction Company, Inc. in the sum of $845,213.55 is the lowest and best bid received.
BE IT FURTHER RESOLVED, That the contract for New Paving and Utility Construction Improvement District No. BN-21-K1 in the City of Fargo, North Dakota, be and the same is hereby awarded to Master Construction Company, Inc. for the sum of $845,213.55, 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 Preston, Gehrig, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the Resolution was adopted.

Contract for Storm Sewer Lift Station Rehab/Reconstruction and Incidentals Improvement District No. NR-20-A2 Approved:
Commissioner Preston moved the Contract between the City of Fargo and CC Steel, LLC for Storm Sewer Lift Station Rehab/Reconstruction and Incidentals Improvement District No. NR-20-A2 in the City of Fargo, North Dakota, 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.

Contract Bond for Storm Sewer Lift Station Rehab/Reconstruction and Incidentals Improvement District No. NR-20-A2 Approved:
Commissioner Preston moved the following described Contract Bond be approved as to sufficiency:
Cincinnati Insurance Company, in the amount of $1,051,534.20, for Storm Sewer Lift Station Rehab/Reconstruction and Incidentals Improvement District No. NR-20-A2 in the City of Fargo, North Dakota.

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.

Contract for Storm Sewer Lift Station Rehab/Reconstruction and Incidentals Improvement District No. NR-20-A3 Approved:
Commissioner Preston moved the Contract between the City of Fargo and Sun Electric, Inc. for Storm Sewer Lift Station Rehab/Reconstruction and Incidentals Improvement District No. NR-20-A3 in the City of Fargo, North Dakota, 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.

Contract Bond for Storm Sewer Lift Station Rehab/Reconstruction and Incidentals Improvement District No. NR-20-A3 Approved:
Commissioner Preston moved the following described Contract Bond be approved as to sufficiency:
United Fire and Casualty Company, in the amount of $98,000.00 for Storm Sewer Lift Station Rehab/Reconstruction and Incidentals Improvement District No. NR-20-A3 in the City of Fargo, North Dakota.

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.

Resident Comments:
Branden Krieger spoke about City issues; Paul Gleye spoke about a rental registry; and Jack Shaw spoke about handicap parking.

Discussion on the Resident Comment Period:
Mayor Mahoney said the resident comment period was started as a way for citizens to speak about items on the agenda; however, it seems to be the same people speaking about issues not related to the agenda and the Commission is giving free opportunity for people to be on television and in the press to speak on issues that have nothing to do with the business of the City Commission. He said he would like to have a moratorium on the public comments and redefine what the City Commission wants. It might be that public comments are open on certain issues the Commissioners wants to hear about, he said, rather than having an opening where residents can talk about anything. He said at one time he was on the prevailing side that said resident comments would continue as is; however, he is bringing it back for discussion and wants to know what the other Commissioners want to do.
Commissioner Gehrig said if someone wants to speak on an agenda item he is more than willing to listen; however, it is open mic night and it is whatever residents want to talk about. He said if a resident wants to talk about something happening in the City right now, then get it on the agenda. He said he was 24 years old the first time he got on the agenda and he was able to talk about an issue with his home.
Commissioner Gehrig moved to end Resident Comments.
The motion died for the lack of a second.

Commissioner Preston said she is seeing more variety in the individuals coming forward to speak and she believes in having an open period where people can talk about their concerns. She said those concerns may not be an agenda item and in fact there may be times when an individual may have difficulty getting ahold of a Commissioner to put an item on the agenda and she would like to see the comments stay; however, it does not have to be every meeting.
Commissioner Strand said he does not want to squelch public speech; however, the Commission has to be careful with it at times. He said one option might be to keep comments focused on topics on the agenda and move the general public comments to the end of the meeting.
Commissioner Gehrig said the majority of people who speak are the same people who say the same things. This is not an open discussion, he said, it is people who have an agenda. He said he also does not want to squelch public debate or deter residents from talking; however, they need to get on the agenda. He said what is happening is not what the rest of the Commissioners are propping it up to be; it is people airing weird grievances and it needs to stop.
Commissioner Preston said she was supportive of this initially due to the fact that it was confusing about who was allowed to address an agenda item and who was not. She said if the rules could be clearer and the Commission sticks to those rules, she has no trouble with public comments within an agenda item.

Hearing on an Application Filed by Youngblood Coffee Roasters d/b/a Youngblood Coffee for a Class “GH” Alcoholic Beverage License at 623 2nd Avenue North Continued to August 9, 2021:
A Hearing had been set for this day and hour on an application filed by Youngblood Coffee Roasters d/b/a Youngblood Coffee for a Class “GH” Alcoholic Beverage License at 623 2nd Avenue North; however, City Auditor Steve Sprague asked that this Hearing be continued to August 9, 2021.
Commissioner Piepkorn moved the Hearing be continued to 5:15 o’clock p.m. on Monday, August 9, 2021.

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

Hearing on an Application Filed by Touchmark at Harwood Groves, LLC d/b/a Touchmark at Harwood Groves for a Class “A-Club” Alcoholic Beverage License at 1200 Harwood Drive South Continued to August 9, 2021:
A Hearing had been set for this day and hour on an application filed by Touchmark at Harwood Groves, LLC d/b/a Touchmark at Harwood Groves for a Class “A-Club” Alcoholic Beverage License at 1200 Harwood Drive; however, City Auditor Steve Sprague asked that this Hearing be continued to August 9, 2021.
Commissioner Piepkorn moved the Hearing be continued to 5:15 o’clock p.m. on Monday August 9, 2021.

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

Community Development Block Grant and HOME Investment Partnerships Program (HOME) Amendments to the 2020 Action Plan, 2019 Action Plan (CDBG-CV) and Citizen Participation Plan Approved:
A Hearing had been set for this day and hour to consider Community Development Block Grant and HOME Investment Partnerships Program (HOME) Amendments to the 2020 Action Plan, 2019 Action Plan (CDBG-CV) and Citizen Participation Plan.
Community Development Planning Coordinator Tia Braseth said the actions proposed are related to the CDBG, CDBG-CV and HOME programs, which are grants awarded to the City by the US Department of Housing and Urban Development (HUD). She said following this public comment period and action by the City Commission, a recommendation regarding these actions will be forwarded to HUD for consideration and approval.
Commissioner Strand moved the Community Development Block Grant and HOME Investment Partnerships Program (HOME) Amendments to the 2020 Action Plan, the 2019 Action Plan (CDBG-CV) and the Citizen Participation Plan, referred to as Attachment “A” and attached hereto, be approved.

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

Application Filed by Tecton Products, LLC for Payment in Lieu of Tax Exemption (PILOT) Approved:
A Hearing had been set for this day and hour on an application filed by Tecton Products, LLC for payment in lieu of tax exemption for an addition to the existing building to expand its operation, which the applicant will use in the design and manufacture of custom fiberglass pultrude parts at 4401 15th Avenue North.
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.
Strategic Planning Director Jim Gilmour said this application has been before the Commission before and was approved for a 100,000-square-foot addition. He said the company later decided it needed an additional 50,000 square feet. About 50 jobs will be added over the next three years, he said, with pay more than $15.00 an hour and the property tax exemption would be at 100 percent for the first five years, then for the next five years it would be a partial exemption. The Tax Exempt Review Committee recommends approval, he said, and this has been reviewed by the West Fargo School Board, who voted to participate in both phases. He said Cass County approved the first application and will look at this second application next week.
Ryan Aasheim, Greater Fargo Moorhead Economic Development Corporation, said the jobs created at Tecton are all good paying jobs and there has been an overall shift in the manufacturing sector, with employers raising the level of wages to respond to market conditions. Tecton came to Fargo in 1992, he said, built a 40,000 square foot building and received a property tax incentive at that time. He said in 1997, Tecton requested another 20-year incentive and added another 60,000 square feet. Since then, he said, Tecton has expanded in Virginia and is looking at the Fargo expansion, which is going to double its footprint and significantly increase Tecton’s presence in Fargo. He said this is a big investment from Tecton that is part of the high-performance window manufacturing cluster in Fargo.
Tom Gohdes, Director of Operations for Tecton, said entry-level production associates earn $21.12 an hour on the day shift and $23.21 on the night shift. He said those are very strong wages, which are up from when he was before the City Commission in April of 2021. He said there is a great demand for associates and Tecton can bring these great jobs to the community. He said at Tecton’s Roanoke, Virginia facility there is a different economic situation; therefore, that is one of the things Tecton struggles with on this decision between expanding in Fargo or Roanoke. He said logistics say Fargo is the spot and overall economics point to Roanoke; however, Tecton is willing to make a commitment to the Fargo market as Tecton wants to move forward and the company’s growth is strong and that is what is driving the expansion. He said the expansion will fuel the company’s growth beyond the five years and based on the explosive growth this year, Tecton wants to build contingency into the growth plan.
In response to a question from Commissioner Preston asking if the report on the amount of in lieu payment and the savings is related to the additional 50,000 square feet or is it the entire 150,000 square feet, Mr. Gohdes said it is the entire 150,000 square feet.
In response to a question from Commissioner Preston asking if the projected job growth is the same with 150,000 square feet, Mr. Gohdes said it is.
In response to a question from Commissioner Gehrig asking in what year will the City look back and ask if Tecton built what they said they were going to build and hired the employees at the wages they said they were going to pay, Mr. Gilmour said each year after the expansion is complete, the City will look at the number of jobs created. He said there are some Business Incentive Agreement forms where a company lists what jobs and on what schedule and if the company does not meet that agreement, the City could come back and consider reducing the incentive.
Commissioner Gehrig said there is a signed agreement; however, nowhere does it say if or when the City will ask if a company did what they said they were going to do. He said he appreciates that Tecton is growing in Fargo; however, at what point does the City look back to find out what the company has done.
Mr. Gilmour said in the past, the Assessor’s Office has monitored Business Incentive Agreements.
Commissioner Gehrig said when businesses have not produced anything, the City has never clawed back and told a company it did not produce the jobs or paid the wages it promised.
Mayor Mahoney said the City has had successful projects and that is the reason there have not been claw backs. He said the Tax Exempt Review Committee is looking at the possibility of doing a claw back and seeing where it might be utilized. He said a report on what has happened in the last seven years will come to the City Commission and can be fully discussed.
In response to Commissioner Strand stating the City and Transit have partnered with businesses in the Industrial Park to step up transit so people can get to Tecton and other employers, there is about a half-hour difference in Transit schedules and Tecton’s scheduled starts and is there a way to get Tecton and Transit on the same page and what is Tecton noticing in the needs of the workforce, Mr. Gohdes said when Tecton looks at hiring direct labor production workers, there are two issues: communication and basic math skills. He said the company has talked about tapping into another resource or even creating a school to teach people elementary English and math; however, the company is not set up to do that, it is overwhelming and is not as simple as it may sound. He said as for transportation, Tecton has a shift start time of 6:30 a.m., which does not quite meet the Transit route. He said the Marvin facilities changed its shift start times to 5:30 a.m. and went to four, 10-hour shifts; therefore, Tecton could use support to try to get the Transit schedule to change.
Commissioner Preston said she is surprised to hear the Skills and Technology Training Center does not offer elementary math or communication skills.
Mr. Gohdes said he is not sure there are spots where people can get that training and the workforce coming to Tecton is not trained. He said Tecton has paid for some people to get trained; however, it is a slippery slope and if the company did that for everybody, it would become uncontrollable. He said he is not saying there are not ways for it to get done; however, right now the workforce coming to Tecton does not take advantage of any educational opportunities, if they exist.
In response to a question from Commissioner Preston asking if there is a claw back option in the Tecton Agreement, Mr. Gilmour said with the current Agreement, if the company does not create a certain number of jobs, that information would go to the City Commission to make a decision to end the incentive or give the company more time. He said he recalls one company that was not meeting requirements, they came to the City and the City gave them more time due to economic conditions at the time.
Commissioner Piepkorn said as an example, last year with COVID-19, obviously there were many struggling businesses; therefore, the City Commission makes the call if it wants to do a full claw back, which is within the City Commission’s rights.
In response to a question from Commissioner Preston who said what is being described is not a claw back, it is just stopping the incentive and Commissioner Piepkorn is saying there is a claw back option, so which one is true, Mr. Gilmour said he would have to read the draft Development Incentive Agreements. He said the City Commission could do it either way and the City Assessor can go back two years and assess someone who had previously been granted a tax exemption if there is an error or it was in an Agreement.
Commissioner Preston said to clarify, she understands fully that there are circumstances that might interfere and the City would have to certainly give a little extra time; however, there should be an option to claw back if a person or a company is not meeting goals.
Mr. Gilmour said that is what Commissioner Piepkorn included in his motion and that will be included in the Business Incentive Agreement; either a claw back or just ending an incentive. He said State law requires a Business Incentive Agreement and allows a City Commission, after a hearing, to end an incentive.
Commissioner Strand said he would caution the Commission to make sure that whatever is done is consistent going forward, that it is not just Tecton. He said he is nervous when the City Commission is honing in on one particular application, setting policy about claw backs and look backs. He said this is Tecton the City Commission is voting on now and if policy is being established, it must be consistent going forward.
In response to a question from Commissioner Preston asking if what the Commission is talking about is a template Agreement and the claw back option would be in every Agreement, Mr. Gilmour said it would.
Commissioner Gehrig said it has always been there; however, his point is the City has never clawed back a dollar from a company that has said it will do this and do that and did not and the company received the whole incentive and was never asked the question if they did what they said they were going to do. He said that is why the giving away of tax dollars from the middle and lower class to the upper class is a runaway train and it has to stop.
Mayor Mahoney said when the City looks back at PILOTs and TIFs, they are very successful; however, the Commission could change policy and concur with Commissioner Strand that going forward the City will have a consistent claw back Agreement. He said he is confused about claw back versus getting rid of an incentive due to the fact that if the incentive goes away, that in essence is making a company pay more money and a claw back would somehow mean the City goes back and gets some money from the company. He said that has to be refined if a company's projections did not work out due to the economy going sour. He said it is tough to go after a company to pay more without causing more harm.
Commissioner Piepkorn moved that the application filed by Tecton Products, LLC for a ten-year payment in lieu of tax exemption pursuant to Chapter 40-57.1.NDCC be approved as follows and to include a summary in the Business Incentive Agreement of the employees a company is going to create each year and the salaries, as well as a claw back option:

Years 1-5 $0
Year 6 $16,770.00
Year 7 $34,150.00
Year 8 $52,139.00
Year 9 $70,739.00
Year 10 $80,953.00

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.

Phase II of the City’s Drought Management Plan Effective July 27, 2021 Approved:
City Administrator Bruce Grubb said Fargo operates a surface water system and relies on the Red and Sheyenne rivers and water stored in Lake Ashtabula behind Bald Hill Dam. He said having water supply redundancies is highly recommended in the water industry due to the fact that it allows flexibility to switch water sources if needed due to insufficient flow, contamination or poor water quality. He said Fargo has a short-term strategy and a long-term strategy for dealing with drought conditions. He said the short term strategy is a Phased Drought Management Plan and the long-term strategy is the Red River Water Supply Project.
Utility Director Troy Hall said Phase One of the Drought Management Plan promotes conservation. He said since about 1980, the per person use of water in Fargo has been reduced by about 40 percent due to newer plumbing fixtures and other types of conservation practices. He said Phase 2 is an advisory phase, Phase 3 is warning and Phase 4 is emergency. Fargo normally operates in Phase 1, he said, and each year the City asks for voluntary odd/even watering restrictions from Memorial Day to Labor Day as well as hydrant flushing restrictions. He said with Phase 2, there are mandatory odd/even watering restrictions.
In response a question from Commissioner Gehrig asking if there is a penalty for watering a lawn on the wrong day, Mr. Hall said initially a reminder is sent to residents and most times they are good about adhering to watering restrictions.
Commissioner Gehrig said this could be a nuisance for the Police and in the Ordinance, it is not specific; however, it does say fines and water shut offs are possible for violators.
Mr. Hall said that is in the Ordinance; however, he hopes the City does not need to get to that point. He said if the City were to get to Phase 4, the ideal is to get to a wintertime water demand. With Phase 4, he said, the Water Treatment Membrane Plant will have Sheyenne River water as the only available source and the new plant was built to handle water from the Sheyenne River, which is really Devils Lake water, and the plant can handle the salt, whereas the previous plant would not have been able to treat Sheyenne River water. He said the new plant will help Fargo tremendously in that situation.
In response to a question from Commission Preston asking how phases are determined, Mr. Hall said he has a scoring system that looks at four indicators: the Palmer Drought Severity Index (PDSI), the Standard Precipitation Index (SPI), stream flows and reservoir levels. He said he has a tool that goes out and grabs a bunch of data in the region with PDSI, SPI, stream flows and reservoir levels and that data populates a report and makes a graphic, and on one portion of the graphic, he can look at Orwell Dam near Fergus Falls and can see what is coming into Orwell and what is being discharged, which feeds the Red River. He said he also looks at the U.S. Geological Survey stream flow data and he showed a graph of the Red River’s decline in July and another graph of the Sheyenne River, where levels near Kindred showed a severe drop in the past few weeks; however, it has stabilized in the past few days. He showed another graphic that monitors water demand in Fargo and West Fargo and the 10-day graph shows peak demands in the morning, then it trails off during the day and overnight. He said last week there was a high demand, then it rained and water demand dropped off the next day; therefore, it helps to have that data in the control system, which is monitored continuously. He said at this time, he is asking for a 5 percent water use reduction, which would show up quickly in the control system. He said the PDSI and SPI are high; however, the streamflow is going to kick Fargo into Phase 2; therefore, he is asking the City to move to Phase 2.
Commissioner Gehrig moved that the City move to Phase II in the Drought Management Plan with the elimination of fines.
The motion died for the lack of a second.

City Attorney Erik Johnson said in the Drought Management Ordinance there is an administrative process that includes giving people warnings if they are violating restrictions, shutting off a person’s water is one of the options and pursuing injunctions. He said it is similar to Emergency Powers in a sense that once a drought is created, the City Commission creates regulations and what is going to be required. He said the Drought Management Ordinance is not set up like a criminal Ordinance where there is a definite fine amount.
Commissioner Strand said he is trying to understand the concept that the City is fighting for the ability to water grass when the state is in a drought. He said aquifers are drying up, fields are drying up, farmers are in trouble, the livestock industry is in trouble, this is an Ag state and the reality of what the ag state is facing needs to be acknowledged. If the City is not going to participate in water conservation, he said, he thinks values are in the wrong place. He said water is a precious commodity and people need to do what is being asked for the greater good.
In response to a question from Commissioner Preston asking if the City is watering grass on any of its properties, Mr. Grubb said the City will observe the odd/even watering schedule.
Commissioner Gehrig said Mr. Grubb and Mr. Hall looked at this years ago and said the City needs to have more than one source of water and they are forward thinkers and due to their visionary thinking, the City is not in a situation where residents cannot flush the toilet or take a shower. He said Fargo is not San Diego, Mandan, Williston or Nevada. Fargo is in a situation where perhaps residents should not water their lawn every day, he said, and not everyone does. He said do not overreact; ask people to reduce their water amount. As a City per capita, he said, Fargo reduced the amount of water it used per person over the last 20-plus years by 40 percent and that is pretty good so do not create mandates, hysteria and penalties.
Commissioner Preston moved that Phase II of the City’s Drought Management Plan be effective July 27, 2021.

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

Interim Financing Agreement, Series C By and Between Garrison Diversion Conservancy District, Lake Agassiz Water Authority, City of Fargo and City of Grand Forks Approved:
City Administrator Bruce Grubb said in November 2020, he presented two Interim Financing Agreements, Series A and Series B, and these Agreements were necessary to allow construction to start on certain components of the Red River Valley Water Supply Project. He said the reason for two separate agreements was they were subject to different State cost shares. He said the Series A, Agreement involved a 90 percent State and 10 percent local cost share and was tied to the 2017-2019 biennial State budget. He said the Series B, Agreement involved a 75 percent State and 25 percent local cost share and was tied to the 2019-2021 biennial State budget. Both of the agreements were necessary to start up construction on the project, he said, including certain critical components including a Missouri River intake wet well, certain sections of the transmission pipeline and a discharge structure on the Sheyenne River. He said the Series C Agreement is also subject to a 75 percent State and 25 percent local cost share, except this is related to State funding in the 2021-2023 budget. Fargo’s share of the funding for costs associated with Series A and B were budgeted over the three budget cycles 2019, 2020 and 2021, he said, and the cost share for the Series C, Agreement has been included in the 2022 budget.
Mayor Mahoney said he is excited the project is finally moving ahead with construction and this is a big step forward so Fargo will be prepared if there is a major drought, which could cause $30 billion worth of damage in the community. He said Fargo is one of the biggest communities as far as industrial water use and there is a lot more industry in Fargo now than 10 or 20 years ago. He said Commissioner Piepkorn has been working on this, the City has been working with the Garrison Diversion group and a Memorandum of Understanding was completed.
Commissioner Gehrig said this is an amazing project at a steal of a price. He said people are always justifiably talking about floods; however, in a drought Fargo understands why water it is so important. This is a fantastic project, he said, and he hopes everyone is in full support of it.
Commissioner Strand moved the Interim Financing Agreement Series C By and Between Garrison Diversion Conservancy District, Lake Agassiz Water Authority, City of Fargo and City of Grand Forks be approved.

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

At 6:20 o’clock p.m., the Board took a 10-minute recess.
After recess: All Commissioners present. Mayor Mahoney presiding.

Construction Update:
City Engineer Brenda Derrig said that there have been no safety incidents this year and due to good weather so far this summer, projects completed to date include: a citywide asphalt crack fill project; Valley View Estates; citywide pavement marking; 44th Avenue North; and asphalt seal coat. Ongoing projects, she said, include: the 64th Avenue South overpass; 38th Street South; Southwest Metro Regional Pond; Laverne’s Addition Phase 2; Eagle Valley 4th Addition; Golden Valley 4th and 5th Additions; 40th to 46th Avenue North; Madelyn’s Meadows 4th Addition; and an asphalt wear course project throughout the City. She said ongoing rehab and reconditioning projects include: 7th Avenue North; 11th Street North; North University Drive; a citywide sidewalk project; an asphalt mill and overlay project on Elm Street; widening and turn lanes added on 40th Avenue North; and various asphalt seal coat projects. She said flood risk management projects continue and current projects include: levee and structure construction on the North Side; house moving in the Royal Oaks area; and work in the Oak Grove, Elm Circle and Riverwood flood risk management areas. She said projects that will start in the next few weeks include: 21st Avenue South from Gold Drive to 15th Street, depending on material availability; the EOLA development on 24th Avenue South; and a concrete rehab project on 13th Avenue South from 28th to 22nd Street.
Transportation Division Engineer Jeremy Gorden said the railroad quiet zone will cover crossings on 7th Avenue and 16th Street North. He said plans are 95 percent complete and the next steps are to complete an agreement with Burlington Northern Santa Fe (BNSF) for improvements and have BNSF’s signal team design modified lights and gates. It is anticipated the City project will be bid this winter, he said, and the quiet zone implemented by September 2022. He said regarding the North Broadway Bridge, a traffic impact analysis was completed and a geotechnical analysis of the road leading up to the bridge should be completed in mid-September. Public feedback will be gathered via an online survey for residents in Fargo, Moorhead and Clay County in the vicinity of the bridge, he stated, and cost estimates for a full reconstruction are also being put together to include a bridge at the current elevation and rebuilt to above the 37-foot flood stage. A joint meeting with the Fargo City Commission, Moorhead City Council and Clay County Commission will be requested in early October, he stated, where items to be discussed will include traffic calming recommendations if the bridge remains closed, cost estimates for a permanent road leading up to the bridge on the Fargo side, a full breakdown of public feedback and cost estimates of reconstruction options.

COVID-19 Update:
Director of Fargo Cass Public Health (FCPH) Desi Fleming said COVID-19 cases and hospitalizations are rising primarily due to the delta variant. She said the Centers for Disease Control and Prevention has termed it a pandemic of the unvaccinated as the majority of new cases from this variant are in the unvaccinated population. She said the delta variant is significantly more contagious with increased severity. Also with this variant, she said, it is vital to complete a vaccine series as it is estimated that one dose of vaccine has only 33 percent efficacy against the delta variant; therefore, the full vaccine series is required to achieve optimal protection. In North Dakota, she said, variants are not disclosed by county, only statewide, and currently there have been about 25 cases of the delta variant identified. She said there are currently 264 active COVID-19 cases within the State with 32 of those in Cass County. Western counties such as Burleigh and Ward are seeing close to double Cass County active cases due to lower overall vaccination rates, she said. Hospitalizations are fairly steady, she stated, and in Cass County, 213 individuals have died from COVID-19. In Cass County, she said, vaccination efforts continue to be a priority and vaccine coverage for Cass County is the highest in the State; however, in light of the increased cases across the nation, there is a way to go. She said she encourages anyone age 12 and older who is eligible to consider vaccination. In Cass County, 12- to 18-year-olds are at a 30 percent first dose coverage rate, for 18- to 64-year-olds Cass County is at 56 percent, 65- to 74-year-olds are at 75 percent and the 75-plus demographic is at 76 percent. She said the Advisory Committee on Immunization Practices has studied and reviewed the benefits versus harm of the COVID-19 vaccines and overwhelmingly has determined the vaccine benefits far outweigh the drawbacks for all eligible age groups and although numbers are not increasing rapidly, she continues to see a slow climb in vaccine uptake. She said FCPH is also continuing to work on messaging and identifying gaps and opportunities for vaccine efforts.
Commissioner Strand said he is very concerned about what happens if things continue to get worse and the benefit of being here in the Upper Midwest is there is a lag effect before things get here. He said it is important to keep on top of what is happening and be prepared to act if needed.
In response to a question from Commissioner Preston asking if the State is doing more genetic sequencing so it is known exactly how many are getting the delta variant, Ms. Fleming said the state does sequence the tests it has; however, testing numbers are down and the numbers may be higher than is known.

City Attorney and City Auditor Directed to Create a New Liquor License Classification for On and Off Sale of Wine Only:
The Board received a communication from City Auditor Steve Sprague stating the Liquor Control Board received a request for consideration of a new liquor license classification. He said the request cannot be accommodated within the existing license classes and the new concept would be a venue specializing in on and off sale wine. The proposed location is in the deLendrecie’s building at 624 Main Avenue in the previous VIP Room. The business would specialize in education, he said, offering wines not available at current retailers and would be open for private events, with food service available through caterers.
Ellen Wall said she and Ramon Sosa, owner of Maxwell’s, West Fargo, went to the Liquor Control Board members to determine if there was an alcoholic beverage license that would fit with their new business model. After putting together some ideas on how it could work, she said, it was determined that a new license would be needed to fit the business concept. She said the business will focus on education and wine events with classes offered to restaurants and retailers in the area. They also want to expand wine knowledge, she said, through tastings, introductory wine tasting classes for beginners and experienced wine connoisseur pairing events. An example wine event, she said, would be to offer several bottles of wine to sample paired with food and a wine presentation. She said Mr. Sosa has many partnerships in Napa, California, and they would customize the event to specific wine regions and vineyards depending on the event and offer the option to purchase sampled wine at the end of the event. She showed architectural renderings of the business, which will feature a wine sampling room, seating for about 10 people, a remodeled glass storefront with wine on display and a bar area.
Mr. Sosa said the purpose of the business is to not only have wine tastings and wine events but also offer wine classes with certifications for people he works with in the community. He said there is a lot of tourism in the Fargo-Moorhead area and the area needs to raise the quality of standards on service, which includes wine service. He said he is excited to share his passion of wine and to also breathe some life into a Downtown space that has been somewhat forgotten.
In response to a question from Commissioner Preston asking why this came to the City Commission now, Mr. Sprague said he is asking the City Commission to direct the City Attorney to create the license, then he would work with the applicants to get the license they are looking for. It would go to the Liquor Control Board to make sure the parameters are where everybody is comfortable and then go through the normal process, he said.
In response to a question from Commissioner Piepkorn asking about an email he received about concerns with the license and if it was following the right parameters, Mr. Sprague said the concern was Mr. Sosa’s wife, who is involved in the wine distribution business and in the laws, a person can either be a manufacturer, a distributor or a retailer; therefore he reached out to Mr. Sosa to clarify that his wife is not involved in any of the retail operations, just in the distribution part of the wine business.
In response to a question from Commissioner Preston asking how many classifications of licenses are available, Mr. Sprague said it is more than 30.
In response to a question from Commissioner Preston asking instead of making classifications for one case at a time, could the City create a larger, broader category, City Attorney Erik Johnson said that has been tried several times; however, there are many interests that come into play when trying to change the rules in an established industry. He said the City may want to dust off some of the previous attempts and see why they failed. He said there were always stumbling blocks due to the complexity of the licenses.
Commissioner Gehrig said he likes the idea of simplifying liquor licenses, other cities have done it by making an A, B, C, alcohol, beer and wine and on and off sale. Fargo has well over 30 licenses and it could be only six; however, he said, Fargo demands that there be this complex system where new licenses have to be created all the time. JL Beers and Vinyl Taco had to create a whole new license just to sell beer, he stated, and then Fargo created two licenses and the same person owned them and then when someone else tried to create a beer bar elsewhere Downtown, that person was denied. He said it is a mafia, the people who own the licenses do not want more so the reason Fargo does not have simplified licensing is due to the fact that the people really in charge of this City Commission, who are not sitting here, do not want more licenses.
Commissioner Piepkorn moved the City Attorney and City Auditor be directed to create a new liquor license classification for on and off sale of wine only.

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

Brownfield Assessment Report for Mid America Steel Site Received and Filed:
The Board received a communication from Planning Director Nicole Crutchfield stating that over the past three months, the City has worked with SRF Consulting, Inc. and Braun Intertec to provide Brownfield Assessment expertise for the Mid America Steel Site. The primary focus, she said, was brownfield cleanup and reuse planning as part of a Brownfield Assessment Grant from the Environmental Protection Agency (EPA). SRF Consulting held two open houses and three stakeholder meetings to gain a community level understanding of the Brownfield Assessment and future opportunities for redevelopment, she said. She shared the report compiled by SRF Consulting titled “Brownfield Assessment Mid America Steel Site” with recommended land use options based upon SRF’s analysis of the site in combination with stakeholder and public input received through the assessment process.
Scott Harmstead, SRF Consulting, said the goals of the Assessment were to analyze the site, define the constraints and opportunities and explore some of the land use options. He said at the two public open houses, there were about 20 attendees at each and many great questions and comments. He said the entire report is quite extensive; however, in terms of the recommendations he wants to highlight two. The first one probably had the most public backing, he said, and that is to use the northwest part of the site at the intersection of 2nd Street and NP Avenue, which is roughly 3.94 acres, as an entertainment area such as a performing arts center, a children's museum, a science center, something as an anchor to Downtown. Along the eastern side of the site, he said, there cannot be anything vertically due to floodway restrictions; therefore, ideas were to have a park or open space use such as an open amphitheater, an open market space for a farmer's market and botanical garden. He said the other option is a vertical mixed-use building, primarily focused towards the NP Avenue and 2nd Street intersection and more of the typical Downtown mixed-use building with commercial on the bottom floor and residential above. He said just to note, commercial would be limited, especially retail, due to the fact that there would not be as much foot traffic as the Broadway area; however, residential would be attractive, especially with the possible views of the river and the greenway. He said there is a small area on the southwest corner of the site sandwiched between Main Avenue and the railway that could be used; however, the access would be a problem as the only current vehicular access is from Main Avenue and it is only a right in, right out access. The preferred use for that area may be a parking lot for access to the rest of the site or to the river or some type of open space use. He said other options for the northwest portion that did not have as much support were housing and vertical mixed-use. He said the Park District expressed some support during the meetings and the first step of demolition has begun and it is a good time to do demolition with current high scrap steel prices. After demolition, he said, would be good time to do a detailed topographic survey, which documents the complex set of easements and utilities and then a more detailed evaluation of those land use options and what the City would truly prefer to prioritize on the site. He said the environmental remediation will have to happen to get a “no further action” report from the EPA to give developers the green light on this piece of land that 100 years ago was a residential area and is really the birthplace of Fargo.
Commissioner Preston moved the Brownfield Assessment Report for the Mid America Steel Site be received and filed.

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

Resolution Authorizing the 2021-2022 Wildlife Management Program Adopted:
The Board received a proposed Resolution from Assistant Chief of Police Travis Stefonowicz, which provides the parameters for the City’s 2021-2022 Wildlife Management Program. He said the deer hunt will run from September 3, 2021 through January 31, 2022 and turkey hunting will run from October 9, 2021 to January 31, 2022. The program’s structure will remain as is, he stated; however, it is subject to change based on recommendations that may result from the findings of a study group, whose development was requested and approved at the June 28, 2021 City Commission meeting. He said the study group will present their findings at the September 7, 2021 City Commission meeting.
Police Chief David Zibolksi said the Resolution is to keep the Wildlife Management Program in place while the study committee completes its work. He said the first meeting of the study group is set for August 9th and he will have some good options to bring forward in September.
Commissioner Preston moved the Resolution Authorizing the 2021/2022 Wildlife Management Program and referred to as “Attachment B,” be adopted and attached hereto, allowing for future study group recommendations to be implemented in the 2021-2022 management year.

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

Resolution Authorizing Sale of Property (500 Main Avenue – Island Park Ramp) Adopted:
The Board received a communication from Strategic Planning Director Jim Gilmour stating Bell Bank is interested in acquiring the Island Park Ramp to meet their parking needs. The ramp is greatly underutilized, he said, and conditions of a sale can include allowing existing tenants to park in the facility, providing parking for the proposed 501 Main Avenue project and continued free public parking in the evening and on weekends. Additional parking is needed in the core of the Downtown, he said, and the income from the sale of the parking ramp can be used to meet those parking needs. The proposed sale price is $9.5 million, he stated, and the proposed Resolution authorizes offering the property for sale and begins the sale process. He said the Board will review offers at a future meeting and make a decision on the sale at that time. He said Bell Bank has been looking at several different locations Downtown to locate its headquarters over the past several years and due to the availability of the Island Park Ramp, Bell Bank has entered into a purchase agreement to acquire the Bank of West building, which will be completely rebuilt from the exterior to the interior. The Island Park Ramp was constructed by the City 20 years ago, he said, and structurally it is still in very good condition. In order to sell the ramp, he said, the City will have to go through a surplus property type process. He said the City came up with the value of the ramp by looking at studies that said the average cost of building a parking stall in a ramp was about $22,500.00 to $25,000.00. He said the $9.5 million amount is $25,000.00 times 347 plus the cost of the land, which is close to replacement cost and is a good value for the City. He said Interstate Parking and Walker Consultants advised $9.5 million would be a good price for the City and the Finance Committee recommends approval of the Resolution. If the Resolution is adopted, he said, the City would advertise several times in August with proposals due in September. He said another party could also propose to acquire the facility and the City will ask that anyone who would acquire the ramp would bring at least 250 jobs to Downtown. Bell Bank is comfortable with allowing the 501 Main Avenue project to utilize up to 100 parking spots in the facility, he said, and 25 to 50 parking spots for people who currently park there, which is a handful of Downtown residents and an architecture firm. He said Bell Bank is also comfortable with still offering free parking on evenings and weekends; therefore, some public use of the facility will be available.
Commissioner Piepkorn said the $9.5 million should go to the Parking Commission to continue to do other projects due to the fact that if those dollars go back into the General Fund, the Parking Commission will not have the finances to do any new ramps. He said parking garages may not seem glamorous; however, the first question corporate headquarters ask if they come Downtown is “where is the parking?” It is critical, he said, and he does not know if it can be decided tonight; however, there are more projects coming and if Fargo wants to keep them coming, Fargo has to continue to offer enough parking Downtown.
In response to a question from Commissioner Gehrig asking how long was the incentive on this property, Mr. Gilmour said 27 years. He said this property was not in the Tax Increment Financing (TIF) District, the Wells Fargo and Dakota Bank buildings were in the TIF. He said the only incentive Bell Bank may apply for is the remodeling exemption as the building is outside of the Renaissance Zone.
In response to a question from Commissioner Strand asking how much has the public invested in this parking ramp, Mr. Gilmour said the City constructed it for $4.5 million in 2000 and the City acquired the land for $875,000.00 last year. He said the ramp was paid for with a combination of three sources, the people who paid to park provided money for bonds, second would be the TIF and third, there was a special assessment district where Norwest Bank and Community First Bank were paying for a portion of the debt; therefore, no General Fund money went into the facility.
Commissioner Piepkorn moved the Resolution Authorizing Sale of Property (500 Main Ave – Island Park Ramp), and referred to as Attachment “C,” be adopted and attached hereto.

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

City Attorney Directed to Initiate Appropriate Proceedings to Formally Request the Court to Issue an Enforceable Judgment Interpreting the City’s Term Limits Ordinance:
The Board received a communication from City Attorney Erik Johnson outlining his opinion as to the interpretation of the City’s term limits Ordinance, Section 2-0106 of the Fargo Municipal Code and his opinion as to how the term limit Ordinance affects sitting members of the City Commission along with a calculation as to when each member will be “termed out” as a result of the Ordinance. He said each member of the City Commission has different circumstances regarding their terms in office. Mr. Johnson presented to the Commission a summary of his interpretation, explaining that the summary is not intended to replace the in-depth analysis provided in his 16-page written opinion contained in the agenda packet and is supplemented by a voluminous appendix with related materials. He also explained that while the City Commission heard the analysis and argument from the Mayor’s attorney, Tami Norgard, at the prior meeting of July 12th, he did not intend to engage in an argument but, rather, to summarize the interpretation that he has adopted by said opinion. He said he would focus upon an interpretative model that, in his opinion, he labeled the “Commission Member Model.” He explained that the focal point of the Commissioner Member Model is to view the members of the City Commission – both the Mayor and all Commissioners – as “members” of the Board of City Commissioners. From that perspective, he explained, when one reads the term limits Ordinance in its entirety, the base term limit combined with each of the four subsections of the Ordinance, subsections A through D, the result is a quite reasonable interpretation, based on the words of the Ordinance itself that, with respect to the question of whether the April 2015 Special Election caused by the vacancy in the Mayor’s office due to the death of Mayor Walaker constituted a “partial term” that rendered the 2014-2018 term in office of Mayor Mahoney as not counting toward the four-term limit. He said because Dr. Mahoney was a “member of the commission” without interruption from June 2014 to June 2018, that term did count as one of the four successive in office and, therefore, Dr. Mahoney’s 2018 to 2022 term is his fourth successive term and he is not eligible to run for reelection in June 2022. Mr. Johnson explained that the resignation requirement that was in place as a result of a City Home Rule Charter Amendment enacted by city-wide vote after the 1992 term limits Ordinance was enacted, is an important aspect in the analysis of the events leading up to the April 2015 Special Election. The resignation provision of the City’s Home Rule Charter required then-commissioner Mahoney to resign his office as Commissioner, he said, in order to run for the position of Mayor. Mr. Johnson explained that the Home Rule Charter and City Ordinance required Dr. Mahoney’s resignation to take effect on the day two weeks after the Special Election. This was evidenced, he said, by Mahoney’s letter of resignation, filed with the City Auditor, that said it was to be effective two weeks after the election. Mr. Johnson explained that the purpose and effect of the resignation requirement was to allow the Special Election to also include the to-be-vacated City Commission seat of the commissioner, in this case Commissioner Mahoney, seeking the mayoral seat. In April 2015, Johnson explained, Commissioner Gehrig won the Special Election for the seat vacated by Commissioner Mahoney and, by city Ordinance, Gehrig took office on May 12th, two weeks after the Special Election, and Commissioner Mahoney became the Mayor as a result of the resignation requirement and the delayed effective date of the resignation, Dr. Mahoney was a “Member of the City Commission” during the entire four-year term of June 2014 to June 2018 as contemplated in the term limits Ordinance. He said also on the ballot for the April 2015 Special Election was a question to the voters whether to amend the Home Rule Charter to remove the resignation requirement and the voters approved the removal. The effect of that is not relevant to this conversation, he said; however, the effect would mean if somebody does not resign and that person is successful in advancing to the position of Mayor, for example, such advance would cause another vacated seat in the commission and there would have to be another election within a few months to fill the newly vacated commission seat. Mr. Johnson reiterated that it is his opinion that, when one reads the term limits Ordinance and one attempts to give meaning to the Ordinance in its entirety, the result is that Dr. Mahoney has been a member of the City Commission since he was initially elected in September 2005 without interruption and when one reads the various subsections of the Ordinance with that perspective in mind the intent of the Ordinance becomes clear. He said he does acknowledge that the arguments of attorneys Howard Swanson and Tami Norgard are not without logic or merit and, therefore, one could argue that the City’s term limits Ordinance is ambiguous and when an ambiguity exists, one may look at extrinsic evidence, such as the Ordinance’s legislative history to determine the Ordinance’s intent. He said he would leave it to the Commissioners to read the testimony and minutes from the meetings in 1992, saying that he thinks the legislative history supports the Commissioner Member Model. After determining that the City Commission wanted to hear about the options for action the Commission might take, Mr. Johnson offered some observations that might be considered by the Commission as the Commissioners decide what, if any, action to take. He said with respect to the upcoming election timeframe, to the extent a dispute exists as to the interpretation of the term limits Ordinance, it would be better to resolve any dispute earlier rather than later; that it should be desirable for voters to have confidence in the election and, therefore, it is desirable to clarify doubts surrounding an election process. He said while his opinion as the City Attorney has weight and a City Attorney’s opinion should usually be followed by city staff members and also a city commission, with respect to this particular opinion as to the term limits Ordinance, there may be people who have an interest in running for office and they may want to know whether or not they are running against an incumbent. He said those people certainly are not bound by a city attorney’s opinion. He said he acknowledged that a City Attorney opinion does not have the force of law, it is subject to challenge and that is where the matter is left. He said as to the election timeframe, it does help if the courts are going to decide things, such matters take time and the election cycle formally starts January 1, 2022; therefore, if a court proceeding were to commence sometime after the start, there will only be about five months in which a decision might be finalized by the courts. Mr. Johnson provided four options for the Commissioners to consider: the first is to receive and file his opinion letter, which might be considered somewhat of a do-nothing option; the second option would be to request a court interpretation by the filing of an action in court by the City to obtain a declaratory judgment and an interpretation of the term limits Ordinance.
In response to a question from Commissioner Gehrig asking what a declaratory judgment means, Mr. Johnson said a judge can give a declaratory judgment; however, the court also has the discretion to decline to do so. He said the courts generally do not give advisory opinions and; therefore, it is extremely helpful if the court is convinced that there is a real case and controversy in place. He noted that even at this point in time the election is nigh; however, the City’s request could be filed with the Court urging that this is a very legitimate concern, that the City has an interest in having any doubt resolved. He explained that if doubt is not sooner resolved, then come January 1st, an application for the Mayor’s re-election candidacy will be filed and the City Auditor will have to figure out what to do with the application. He said those are the basic reasons he would ask for the litigation council to tee up the ball in a way that gets the court to take on the matter.
Commissioner Gehrig asked about the odds a judge will take it up and if there is litigation, would Mr. Johnson present a point and then the Mayor’s lawyer would present a point or is it just the judge sees the language and makes a decision, Mr. Johnson said in the City’s filing with the court, the City Attorney’s opinion would be provided to the court that would speak for itself. Interested parties such as potential mayoral candidates, would likely ask to intervene in the case and make arguments and, he said, he would not expect to resist any such intervention into the case. He said that if the City filed the application for declaratory relief with the court and Mayor Mahoney wanted to intervene as a party, he would have the right to participate. He said a third option would be to seek a City-wide vote on term limits, he said the City Commission gave directive at its July 12th meeting. He said an advisory vote was authorized and presumably that is going on the ballot for the June Election. He said the problem is it will not resolve the problem for this Election for Mayor Mahoney as to whether the City Commission decides to do something with term limits again. A fourth option, he said, is to change the Ordinance. He said if the City Commission were to make a change to permit Mayor Mahoney to run for another term, the proposal and the draft Ordinance would clarify this partial term argument in a manner which is consistent with the way Ms. Norgard presented the matter at the prior City Commission meeting, where in such cases there is a partial term in a situation such as occurred in 2015, the partial term is not to be counted as one of the three or four successive four-year terms that comprise the term limit for the elected official in question.
In response to a question from Commissioner Preston asking about option three, which was termed an advisory vote and what that means, Mr. Johnson said the language of the approved motion directed that voters be asked if they want term limits, the motion did not point to particular term limits language. He said if the City Commission wants voters to react to a specific law, a precise law needs to be prepared, whether it is a Home Rule Charter Amendment or an Ordinance.
Commissioner Preston said she supported this in 1992 and she believes in term limits. She said the problem she had with it back then was it was Ordinance level. It would be wise, she said, instead of an advisory vote to actually have term limits written out in a ballot measure and people can vote up or down and perhaps the City Commission needs to revisit that part of the motion from July 12th.
Mayor Mahoney said the issue is the Ordinance did not anticipate a death in office and he still had to stand for election in April 2015. He said a person is elected every time to a four-year term, in front of the public who vote someone in as a Commissioner or Mayor. The other issue in the Ordinance, he said, is if Commissioner Preston runs for Mayor and Commissioner Piepkorn runs for Mayor, Commissioner Preston can retain her seat, Commissioner Piepkorn cannot, he is out, he either runs for Commission or runs for Mayor; however he can run for Mayor and he does not lose his position. He said it is an ambiguous Ordinance due to the fact that it never anticipated certain things. It is important to remember that when someone is elected to a term, he said, that term starts when they get elected and the first day they are sworn in until the end of that term until they are re-elected. He said partial terms are different than anything else; therefore, there is an Ordinance drafted which disregards the partial term and he could run for one more term. If the Ordinance is ambiguous, he said, he thinks that is a disservice. He said the Commission needs to decide what it feels is fair; however, with the ambiguity, the Ordinance option that fixes the term limits is the best option.
In response to a question from Commissioner Piepkorn asking hypothetically since Commissioner Gehrig’s and his terms are up in June, both could resign and that would reset the clocks, Mr. Johnson said he had considered that question but opted to not provide a formal answer.
Commissioner Piepkorn said they both could resign and reset the clocks. He said the rules are three, four-year terms and there is no ambiguity. No one is above the rules, he said, they are black and white and Mayor Mahoney has a conflict of interest. If someone wants to play the game, then we can all play the game, he said.
Commissioner Gehrig said he is not running for Mayor; therefore, he has no dog in the fight; however, in his mind there are three options: either change the law, delete it or get an opinion as he sees no harm in asking a judge for an opinion. At some point if the City Commission says Mayor Mahoney cannot run, he said, he is going to sue the City, then it is going to go to court anyway. He said getting an opinion from a judge is the fastest way to get through this. He said he does not think anyone here wants to change the law today. He said he is not going to move for that, he was not there, Commissioner Preston was, and she declined to give an opinion; therefore, get an opinion from a judge and move forward.
Commissioner Strand said it is time to get this resolved proactively and not kick the can down the road. The reality is this group might not give the most objective vote, he said, and it is a mess. He said he has the understanding as an elected official the City Commission is obligated to follow legal counsel. He asked what happens when January comes around and this is not addressed and Mayor Mahoney files. He said if the Auditor says “yes” or “no” he cannot file, that might trigger litigation. If the Auditor says “yes,” he said, another candidate might sue saying he did not have the right to run and all of a sudden Fargo is in court anyway. He said his best judgment is to listen to legal counsel and receive and file; however, that is not for the public's best interest. He said have somebody who is not biased render an opinion legally.
Commissioner Gehrig moved that the City Attorney be directed to initiate appropriate proceedings to formally request the court to issue an enforceable judgment interpreting the City’s term limits Ordinance.

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.

Development of a Rental Licensure Program Failed for the Lack of a Majority:
The Board received a communication from Commissioner Arlette Preston stating in the development of the Core Neighborhoods Plan (CNP), residents identified a key priority being the “condition and quality of life impacts (on the neighborhoods) of rental housing.” She said there have been numerous examples of problem rental properties when homes have been converted to multi-family dwellings and are not owner-occupied. She said the conditions of the buildings deteriorate, impacting the entire neighborhood and at times, the City does not have updated contact information and when there is a problem with the property, it is difficult to find the owner. The CNP is clear about a comprehensive approach to strengthening core neighborhoods, she said, and the strategy of a rental licensure program is an essential one.
Commissioner Piepkorn said this is a great opportunity for contrast of capitalism versus leftists. Capitalism is if someone is a renter and has a bad landlord, they can move to a different place, he said. Leftists add bureaucracy and rents will go up with a new government program, he said, and landlords will have to pay a fee and will pass that on to the renter. He said what this does is pay the government to babysit for renters instead of the free market where if someone has a bad landlord, they can move someplace else. He said Fargo has excellent landlords and terrible landlords; however, in a free country a person gets to choose. He said with this program, the City would have to add more Planning staff, which costs taxpayers money.
Commissioner Gehrig said he owned a number of apartment complexes and when bureaucracy was added, it was a cost. He said property owners have to prove certain things, be inspected, make time, meet inspectors, it all costs money and time and landlords do not just eat those costs, they are passed along to whomever is paying rent. He said he owned apartments in Fargo and Moorhead and the Fargo apartments were easy to own and rent and people loved them. The apartments in Moorhead were a nightmare, he said, due to so much bureaucracy. He said Fargo worries about affordable housing and then wants to add more bureaucracy to the system and say Fargo is doing a good thing. Moorhead apartments are not better than Fargo apartments, he said, even though Moorhead has a registry. Fargo is a much more attractive housing market, it is less expensive, there are more options and more people are buying places and fixing them up and renting them out due to the fact that there is not so much bureaucracy, he said. Fargo can learn from Moorhead what it should and should not do, he said, and Fargo should not do this registry. He understands Commissioner Preston wants to stand up for the renter; however, this is not the way to do it.
Commissioner Strand said he routinely hears from Inspections about out-of-code properties in the City and the City Commission knows it is a big problem. He said if Fargo is going to have people living in apartments, Fargo can have some standards that say those people are going to be safe. He said let us find out what Commissioner Preston's proposal turns out to be before deciding it is a too big of a burden for the capitalistic society to bear.
Commissioner Preston said this is not a renter protection issue and there would be no attempt to stop evictions if someone is not paying rent. It is, for example, she said, if apartments are rented without proper egress for escaping a fire. She said Grand Forks started a registry program and saw big improvements by establishing standards for absentee owners. She said this is part of the CNP, this is where the rubber meets the road and the City Commission has to be willing to start making some inroads to improving these neighborhoods.
Commissioner Piepkorn said Inspections Director Bruce Taralson is awesome and during COVID-19 it was difficult for inspectors to get into apartments and they are behind. He said the City is going to add another position in Inspections, which is where the rubber meets the road, and that is in the budget. When someone hears about this and thinks it is good intentions, it is not, he said, it is “we are from the government and we are here to help you.” A program such as this is going to raise rents, he said.
Commissioner Gehrig said when he bought his first home, he had five people living with him; therefore, is he going to have someone come into his personal home and tell him they all have to leave because of X, Y or Z? He said he understands the intent; however, there are greater implications, especially for the first-time homebuyer who has roommates. He said it is protectionism and if his sister lives in his basement and the egress window is not up to standards, she can choose to live there or not. This is not just about the big companies, he said, this is about regular people who own a home and two people live there with them. It is going to raise the cost of housing, he said, and the City wants people moving to Fargo; however, this is going to make it more expensive to stay in Fargo.
Commissioner Preston said the process is to have staff try to figure all of this out, ask what kind of situations would be inspected and come back to the City Commission with recommendations.
Mayor Mahoney said Fargo has the number one rental market in the nation; therefore, that tells him Fargo has great housing options. The Planning Department is down four people, he said, and has to hire a planner to manage the CNP, and that person can decide if Fargo needs a rental registry. He said he was asked to add another Inspection’s person due to the fact that rental houses are not the only problem, it is also homes. He said NDSU has made tremendous gains and added rentals closer to the University, which is putting more vacancies in the Roosevelt neighborhood. He said borderline rental places are not renting and the market is dictating that. Moorhead’s rental registry consists of five or six people on staff, he said; therefore, this request has budgetary impacts and is jumping ahead of the process. It has not gone to the Planning Commission and the City has not received input from the renters and owners. He said this impacts many departments and it is premature to make this request at this time.
Commissioner Strand said about 70 percent of the Roosevelt neighborhood homes are owned by absentee owners, which have been turned into rental properties and run into the ground. He said crime rates are escalating in that area and if the City Commission does not address the Roosevelt neighborhood issues, it is a canary in the coalmine for the rest of the neighborhoods. He said he does not think Commissioner Preston's proposal is looking at the Goldmarks and the Campbells, it is looking at neighborhood houses owned by people who do not care and do not live here. He said it is on the City Commission’s shoulders to address this issue and provide people in those homes safe environments. He wants to hear what others have done with rental registries, he stated, what are the successes what are the pros and cons and he does not see any reason not to do that.
Commissioner Preston said there is a minimal amount of enforcement with problem properties. She said code enforcement, Inspections and the Police have been trying and she does not think it is premature.
Commissioner Strand moved that this item be tabled until December 1st in order to elicit information from the Community Development Commission, the Planning Commission, the Historic Preservation Commission and Neighborhood Associations.

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

Commissioner Preston moved to direct staff, in coordination with the City Attorney’s office, to further develop a framework for the creation of a Rental Licensure Program and to report the next steps to the City Commission within six months.

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

Applications for Property Tax Exemptions for Improvements Made to Buildings Approved:
a. RT Sliwinkski, 2831 27th Street South (3 year).
b. ADOC Property II LLC, 2901 12th Avenue North (3 year).
c. Nicole Mord, 1617 2nd 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.

Appointments to the Library Board Approved:
The Board received a communication from Mayor Mahoney stating the terms of Mary Batcheller and Carrie Peterson on the Library Board expired on June 30, 2021. He said Ms. Peterson is willing to continue her service on the Board; however, Ms. Batcheller no longer wishes to serve. He recommends Ms. Peterson be reappointed and Jenna Reno be appointed to the Library Board.
Commissioner Gehrig moved Carrie Peterson be reappointed and Jenna Reno be appointed to the Library Board for three-year terms ending June 30, 2024.

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.

Commissioner Gehrig moved that the Board adjourn to 5:00 o’clock p.m., Monday, August 9, 2021.

Second by Piepkorn. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 8:07 o’clock p.m.