Board of City Commissioners - November 15, 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 5:00 o'clock p.m., Monday, November 15, 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: The Inspections Department code adoption process will soon be completed with the effective date for the codes the first part of 2022; Inspections has added a Code Enforcement Inspector to its team; the Red River Modules Model Railroad Club will be at the Main Library later this month to display and demonstrate model trains; the Library offers readers’ advisory services for children, teens and adults; the apartment vacancy rate for June 2021 in Fargo decreased to 4.4 percent; Beyond Shelter received funding from the ND Housing Finance Agency for its proposed affordable senior housing projects in Fargo; the Fargo Police Department has promoted four lieutenants and five sergeants; the Fargo Police Department is accepting applications for the 2022 Fargo Police Academy through December 6th; and a video for the Fargo Police Department to promote the Academy was shown.

Order of Agenda Approved:
Commissioner Piepkorn moved the Order of the Agenda be approved, delaying action on Regular Agenda Item No. “44a” for two weeks.
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 November 1, 2021 be approved as read.

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

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

1. 2nd reading and final adoption of the following Ordinances; 1st reading, 11/1/21:
a. Rezoning a Certain Parcel of Land Lying in Oak Manor Second Addition to the City of Fargo, Cass County, North Dakota.
b. Enacting Article 24-05 of Chapter 24 of the Fargo Municipal Code Relating to Franchises and Contracts.
c. Electric Franchise Ordinance.
d. Rezoning Certain Parcels of Land Lying in Reeves Addition to the City of Fargo, Cass County, North Dakota.
2. Applications for Games of Chance:
a. Friends of the Children Fargo-Moorhead for a raffle on 12/2/21; Public Spirited Resolution.
b. NDSU Judging Club for a raffle on 3/2/22.
c. El Zagal Shrine Arab Patrol for a raffle on 3/11/22.
d. Eagles Elementary PTA for bingo on 11/19/21 and 2/11/22.
3. 2022 City Commission meeting schedule.
4. Memorandum of Understanding Regarding Construction, Maintenance and Purchase Option with Park District of the City of Fargo.
5. Property Damage Release Agreement and allocation of $93,860.00 from Acuity Insurance for damages at 2451 43rd Street North with Northern Improvement completing the repairs.
6. 2021 CIP revisions.
7. Resolution Authorizing Storm Water Service Charge (Attachment “A”).
8. Change Order No. 8 for an increase of $47,668.50 for Project No. FM-16-A1.
9. Bid award to Magnum Electric, Inc. in the amount of $498,660.00 for Project No. MP-20-A2 (Roberts Alley).
10. 74-day extension of FMLA for Sarah Dykema.
11. Revised Resolutions Authorizing the Issuance and Sale of City of Fargo Solid Waste Revenue Bonds, Series 2021B and 2021C (Attachments “B” and “C”).
12. Receive and file Financial Status Report Year to Date ending through 10/31/21 for major operating funds (unaudited).
13. Agreement for Services with Akumbom Neba.
14. Notice of Grant Award with the ND Department of Health for Community Grant Program to address Public Health gaps in the community (CFDA #93.991).
15. Addendum to Provision of Nursing Services for the Central Cass Public School District.
16. Purchase of Service Agreement with the ND Department of Human Services for implementing strategies addressing opioid or stimulant misuse.
17. Change Orders for the Mid America Steel Demolition:
a. No. 4 in the amount of $4,065.00.
b. No. 5 in the amount of $8,484.62.
18. Purchase of one Fire Rescue Truck from HGACBuy in the amount of $373,899.00 (PBCFS12-19).
19. Change Orders for Project No. SW20-01:
a. No. 2 for an increase in the amount of $21,548.60 (civil contract).
b. No. G-001 for an increase in the amount of $235.62 (general contract).
c. No. G-002 for an extension to the substantial completion date to 12/15/21 (general contract).
d. No. M-002 for an extension to the substantial completion date to 12/15/21 (mechanical contract).
e. No. M-003 for an increase in the amount of $1,555.00 (mechanical contract).
f. No. E-001 for an extension to the substantial completion date to 12/15/21 (electrical contract).
20. Amendment to the Task Order with Stantec Consulting Services, Inc. in the amount of $14,852.00 for Project No. SW20-01.
21. Amendments to Contract Nos. 38190961B, 38190973A and 38201125A with the ND Department of Transportation.
22. Submittal of a grant application to the State of ND for grant funding for public transportation and upon successful receipt of funds to execute the Grant Agreement (CFDA #s 20.526 and 20.513).
23. Bid award to Gast Construction, Inc. in the amount of $150,300.00 for Metro Transit Garage Hoist Replacement (RFQ21072).
24. Change Order No. 3 in the amount of -$2,111.78 for Project No. WA2004.
25. Task Order No. 12 with AE2S in the amount of $448,720.00 for Project No. WA1852.
26. Change Order No. 2 for an increase in the amount of $19,849.90 for Project No. WA1863.
27. Chemical bid awards for the Water Treatment Plant for 2022, as presented (AFB21182).
28. Chemical bid awards for the Water Reclamation Utility for 2022, as presented (AFB21183).
29. Bills in the amount of $10,755,102.87.

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

Incentive for Improvement District No. BN-22-A1 Approved:
The Board received a communication from the Public Works Projects Evaluation Committee stating the project is necessary to support the Career Academy building on 64th Avenue South opening in early 2023, along with a sanitary sewer connection point for Horace when necessitated and staff feels there needs to be an effort to complete the project during the 2022 construction season. They said the recommendation is to incentivize the Substantial Completion of the 1 1/2 mile project to October 29, 2022 for an incentive payment of $4,000.00 per calendar day with the maximum incentive payment of $60,000.00.
Commissioner Gehrig moved the incentive for Improvement District No. BN-22-A1 of $4,000.00 per day for a maximum incentive payment of $60,000.00 be approved.

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

Change Order No. 2 for Improvement District No. BR-21-C1 Approved:
Commissioner Gehrig moved Change Order No. 2 for a four-day Phase 4 Interim Time Extension to October 30, 2021 for Improvement District No. BR-21-C1 be approved.

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

Negative Final Balancing Change Order No. 1 for Improvement District No. AN-20-C1 Approved:
Commissioner Gehrig moved Negative Final Balancing Change Order No. 1 in the amount of -$7,565.00 for Improvement District No. AN-20-C1 be approved.

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

Easement (Temporary Construction Easement) with Gate City Federal Savings Bank in Association with Improvement District No. BR-22-A0 Approved:
The Board received a communication from Land Acquisition Specialist Shawn Bullinger requesting approval of a Temporary Construction Easement with Gate City Federal Savings Bank in association with Improvement District No. BR-22-A0.
Commissioner Gehrig moved the Easement (Temporary Construction Easement) with Gate City Federal Savings Bank in association with Improvement District No. BR-22-A0 be approved.

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

Memorandum of Offer to Landowner for the Purchase of an Easement (Temporary Construction Easement) from 32nd Center, LLLP Approved (Improvement District No. BR-22-A0):
The Board received a communication from Land Acquisition Specialist Shawn Bullinger requesting authorization to proceed with a Memorandum of Offer to Landowner for an Easement (Temporary Construction Easement) from 32nd Center, LLLP in association with Improvement District No. BR-22-A0 as recommended by the City Engineer’s office. He said a final purchase price has been reached and authorization from the Board is requested to proceed with the purchase.
Commissioner Gehrig moved the Memorandum of Offer to Landowner for the Purchase of an Easement (Temporary Construction Easement) from 32nd Center, LLLP in association with Improvement District No. BR-22-A0 be approved.

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

Resident Comments:
Richard Thomas and Christopher Coen spoke about the Wildlife Management Program; Keith Coates and Steve Olson spoke about the Massage Therapy Establishment Program and Ordinance; and Branden Krieger commented on various City issues.

Parcels of Land in Meadow View Addition Rezoned (1402-1493 66th Avenue South; 1406-1494 67th Avenue South; 1450-1497 68th Avenue South; 1402-1498 69th Avenue South; 6600-6985 14th Street South):
A Hearing had been set for November 1, 2021 to consider a change in zoning from SR-4, Single Dwelling Residential and P/I, Public Institutional to SR-4, Single Dwelling and P/I, Public Institutional.
At the November 1, 2021 Regular Meeting the Hearing was continued to this day and hour.

Current Planning Coordinator Donald Kress said the proposed plat is a replat of a portion of Bison Meadows Second Addition east of 15th Street South. He said there has been no development or installation of infrastructure on the project site and there has been no sale of lots to individual owners. The residential lots are owned by Thomsen Homes and the park lot is owned by the Fargo Park District, he said. The replat will create 143 residential lots and one park lot, he said, and the proposed subdivision will result in 20 fewer lots than the existing subdivision.

Tim Nasheim, 6622 Crofton Lane South, said he lives adjacent to this proposed neighborhood and he supports the changes. He said four years ago, Bison Meadows started with 130 lots, 2 drainage ponds, walking paths, greenspace, winding streets, lots of character and walkability; however, the developer later removed the ponds and walking paths and decreased the size of the greenspace and lots, saying there is a high need for smaller lots and the development would be full in 1½ to 2 years. Four years later, he said, not even 50 percent of the lots have homes on them and it will take 5 to 6 years to fill them up. He said the changes to Bison Meadows were made due to the fact those changes would decrease specials and make lots more affordable.

Commissioner Preston offered the following Resolution and moved its adoption:
WHEREAS, All legal requirements in connection with the above-described request for rezoning have been complied with; and
WHEREAS, There have been no written or verbal protests to the request for rezoning and no one is present to protest thereto.
NOW, THEREFORE, BE IT RESOLVED, That the findings of staff be accepted and the rezoning be approved on the basis that the proposal satisfactorily complies with the Comprehensive Plan, Standards of Section 20-0906.F (1-4) and all other applicable requirements of the LDC.

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

First Reading of an Ordinance Rezoning a Certain Parcel of Land Lying in Meadow View Addition to the City of Fargo, Cass County, North Dakota:
Commissioner Preston moved the requirement relating to receipt of the Ordinance by the Commission one week prior to first reading be waived and that the Ordinance Rezoning a Certain Parcel of Land Lying in Meadow View Addition to the City of Fargo, Cass County, North Dakota be placed on first reading.

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

Resolution Adopted Approving Meadow View Addition:
Commissioner Preston offered the following Resolution and moved its adoption:
BE IT RESOLVED BY THE BOARD OF CITY COMMISSIONERS OF THE CITY OF FARGO:
WHEREAS, A Plat has been filed in the office of the City Auditor entitled “Meadow View Addition” containing 144 Lots, 6 Blocks and 34.16 acres of land more or less, located at 1402-1493 66th Avenue South; 1406-1494 67th Avenue South; 1450-1497 68th Avenue South; 1402-1498 69th Avenue South; 6600-6985 14th Street South; and
WHEREAS, A Hearing was held June 3, 2021 by the Fargo Planning Commission, and notice of such Hearing had been published, as required by law, and said Plat had been approved by the Fargo Planning Commission and by the City Engineer; and
WHEREAS, The City Auditor's Office published a Notice of Hearing on said Plat in the official newspaper for the City of Fargo on September 29, October 6, 13, and 20, 2021 that a Hearing would be held in the Commission Chambers, City Hall, Fargo, North Dakota at 5:15 p.m., November 1, 2021 at which time said Plat would be considered and all interested persons would be heard. At the November 1, 2021 meeting, the Hearing was continued to November 15, 2021.
NOW, THEREFORE, BE IT RESOLVED, That the findings and recommendations of staff and the Planning Commission be accepted and the Plat entitled “Meadow View Addition” be and the same is hereby in all things affirmed and approved on the basis that it complies with the Standards of Article 20-06, and all other applicable requirements of the Land Development Code, and that the Mayor of the City of Fargo and the appropriate City Officials are hereby directed to endorse their approval on the Plat and then direct Petitioner to file same for record in the Office of the Recorder of Cass County, North Dakota.

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

COVID-19 Update:
Fargo Cass Public Health Director Desi Fleming said since the beginning of September the fourth COVID-19 wave has remained in a high plateauing phase, which is a concern going into winter. She said Cass County currently has 740 active cases and the State has more than 3,000 active cases. No deaths were reported today in Cass County, she said; however, there were six deaths last week and Cass County now has a total of 252 deaths. Hospitalizations have remained in a high plateau phase, she said, which continues to challenge health care systems across the State. Cass County remains in the high transmission category per the CDC, she stated, and there has been a 1.55 percent increase in positivity over the past seven days, with Cass County at a 9.94 percent average. The age category with the most active cases continues to be the 30 to 39 year olds, she said, followed by the zero to 11 year olds. Vaccine efforts have started for the 5 to 11 year olds and anyone age 5 and older has the opportunity to be fully vaccinated, she said. Initial vaccination rates in Cass County are increasing slightly, she said, and booster doses are increasing, which is an important component for those who have waning immunity. She said there are documented benefits to decreasing transmission rates with booster doses and the criteria for booster doses are over age 18 or if it has been six months since a person’s Pfizer or Moderna series and two months from a Johnson and Johnson vaccine. She said she recognizes most people are psychologically done with the pandemic. For example, she said, when looking at where Cass County was at this time last year, the City was looking to when it should end the Citywide mask mandate and one of the criteria was Cass County staying below a 3 percent positivity rate; however, with the current wave, the County is at a 7 percent to 14 percent positivity rate and no one is willing to do much of anything. She said the virus is slowly becoming endemic and people will have to make decisions regarding what risks they are willing to take. There is a highly effective tool in vaccination for everyone age 5 and older with booster doses readily available, she said, and there is a good supply of monoclonal antibodies. She said new oral antiviral medications should be available by the end of the year that are very promising in preventing hospitalizations and there are many testing opportunities in the community to allow for early testing. She said the benefit of early testing is with the monoclonal antibodies and the antivirals, it is best to give those quickly after diagnosis. She said all of these factors will be helpful; however, from a prevention standpoint, vaccination is the best option. Vaccination has greatly decreased the human impacts of this virus, she said.

Brady Scribner Introduced as New Emergency Manager:
Fire Chief Steve Dirksen introduced Emergency Manager Brady Scribner. He said Mr. Scribner was hired to replace Leon Schlafmann, who retired after 32 years of service with the Fargo Fire Department, serving the last 12 years as Emergency Manager for the City. He said a national search was conducted with 28 applications received and six applicants interviewed. Mr. Scribner was most recently employed by Essentia Health for five years as Emergency Preparedness Program Manager and one year as Security Manager, he said; however, prior to that, he was employed by Fargo Cass Public Health for 14 years.

In response to a question from Commissioner Preston asking for an overview of the Emergency Manager’s job, Chief Dirksen said the Emergency Manager oversees emergency planning for the City, develops and works with various Departments on the Emergency Operations Plan and works with Continuity of Operation Plans for all City Departments. He said the Emergency Manager is the Emergency Operations Center (EOC) Manager in a time of crisis, making sure everyone working in the EOC has what is needed, makes sure the EOC is up and running and is the key conduit with the State when talking with the ND Department of Emergency Services.

Order on Request for Declaratory Judgment Issued by Cass County District Court Received and Filed:
The Board received a communication from City Attorney Erik Johnson stating the City Commission requested the Court’s interpretation of the City’s term limits Ordinance, Section 2-0106. He said he has submitted a copy of the Court’s Order on Declaratory Judgement in the case entitled “in re Fargo Municipal Code Section 2-0106 of the Fargo Municipal Code, City of Fargo, Petitioner.” He said the Court’s order determined Mayor Mahoney is eligible to run for Mayor in the June 2022 City Election.
Commissioner Gehrig moved the Order on Request for Declaratory Judgment Issued by Cass County District Court be received and filed.

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.

Agreement with Walker Consultants for the Civic Center Parking Ramp Expansion Approved:
Director of Strategic Planning Jim Gilmour said the need for additional parking Downtown continues to grow as vacant office space is leased by businesses. He said the highest demand for parking is in the core of Downtown at Roberts Commons and the Civic Center Parking Ramp attached to the Skyway System. The Civic Center Parking Ramp was designed for a vertical expansion to add an additional 68 parking spaces on one additional level, he said, and the City recently contracted with Walker Consultants to conduct a Vertical Expansion Feasibility Study to see if this expansion was still feasible and provide cost estimates. The study confirms a one level expansion is feasible, he said, with an anticipated cost of $2.8 million. He said the Island Park Parking Ramp sale closed on November 1st and revenue from the sale can be used for this expansion, he said. The City has used Walker Consultants on several activities for the Civic Center Parking Ramp, he said, including recent repairs, a condition assessment of City parking facilities and the Vertical Expansion Feasibility Study. Due to the familiarity with this parking ramp, he stated, the Finance Committee is recommending Walker Consultants be hired to provide engineering services. He said it is important to begin now so construction can be done next summer, when there is warmer weather, lower parking demand and a better time for short-term relocation of cars to other nearby locations.

Commissioner Piepkorn said this is one of the highest value ramps Downtown due to the connection to the Skyway System and this is the best bang for the buck.

In response to a question from Commissioner Gehrig asking how much additional revenue would the new parking spots bring in per year, Mr. Gilmour said the spots rent for $129.00 per month and net income would be about $100,000.00 a year. He said if the money is in the bank, the City would earn about $60,000.00 a year at 2 percent interest; however, if the City invests in the expansion, the City earns $100,000.00 and it is providing more Downtown parking.

Commissioner Gehrig said if a business needs parking spots immediately they could find them, there is still capacity Downtown and he never has a problem going Downtown and finding a parking spot. He said there are better things to do with this money.

Commissioner Piepkorn said businesses are coming Downtown and asking for parking, it is a primary issue for economic development. He said on-street parking is for customers and big businesses coming Downtown need parking for employees. He said a new tech company contacted the City recently stating they are going to rent an entire building Downtown and will need parking for 300 employees. This is a great problem to have, he said, that is what a Downtown is, this is what the City wants and this is great news.

In response to a question from Commissioner Preston asking what other parking projects are in the future, Mr. Gilmour said the short-term plan was building Roberts Commons, the Mercantile and putting another level on the Civic Center Parking Ramp. He said the next possible project is the NP Garage, which may be a mixed-use development on a site immediately west of the Old Broadway.

In response to a question from Commissioner Preston asking why the expansion costs more than a brand new ramp, Mr. Gilmour said mobilization costs are more complicated and construction costs have gone up.

In response to a question from Commissioner Preston asking if the façade on the Civic Center Parking Ramp could be updated at the same time as the expansion due to the fact that it looks terrible, Mr. Gilmour said that would have to be separate from the expansion. He said there are issues with older lighting in the Civic Center Parking Ramp that have to be addressed and the facade could be addressed at that time. He said a change for the facade would require an architect to suggest different designs or screening.

Commissioner Gehrig said this is one more incentive for Downtown. He said the taxpayer is not responsible for a business’ parking and if a business need parking, they should build their own parking ramp if they want to be Downtown. He said it is not incumbent upon the resident who lives on 70th Avenue South trying to pay special assessments on their property tax bill to build a parking ramp Downtown.

Mr. Gilmour said the public benefits from the ramps and for example, on weekends, if there are events Downtown, the ramps are open and are not exclusively used by the businesses.
Commissioner Piepkorn moved the Agreement with Walker Consultants for the Civic Center Parking Ramp Expansion be approved.

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

Federal Aid Transportation Projects Applications Approved:
The Board received a communication from the Public Works Projects Evaluation Committee stating the following projects have been identified by staff as priorities for projects to apply for Federal Highway Administration funds for 2025 or 2026:

Urban Grant Program:
None identified for this solicitation.

Urban Road Program:
North Broadway Bridge Replacement over Red River.
$4,500,000.00 total, COF Federal request $1,800,000.00

45th Street Concrete Pavement Rehab – I-94 to 16th Avenue North.
$10,800,000.00 total, COF Federal request $8,640,000.00

40th Avenue South Shared Use Path Bridge over Red River.
$4,000,000.00 total, COF Federal request $1,600,000.00

Shared Use Path Project for 3 locations - Drain 27 near Deer Creek; along River Drive from Harwood Drive to 40th Avenue South; Drain 53 from 64th Avenue South to 73rd Avenue South.
$1,460,000.00 total, COF Federal request $1,186,000.00

Transit Capital Purchase
$1,250,000.00 total, COF Federal request $1,000,000.00

Urban Regional Program:
None identified for this solicitation.

Transportation Alternative Program:
Shared Use Path Drain Crossing between Oakcreek and Timberline neighborhoods to connect Milwaukee Trail to Drain 53 Trail System.
$300,000.00 total, COF Federal request $240,000.00

Highway Safety Improvement Program:
Left turn offset improvements – Intersection of University Drive and 19th Avenue North and intersection of 45th Street and 23rd Avenue South.
$550,000.00 total, COF Federal request $440,000.00

Auxiliary Lane Addition – 45th Street Southbound 19th Avenue South to I-94 Bridge.
$400,000.00 total, COF federal request $320,000.00

Transportation Division Engineer Jeremy Gorden said the Federal Transportation Aid system is a four-year bill; therefore, the City looks out at projects for four years. He said the City is finishing 2021 projects and for 2022, the City will wrap up the 64th Avenue South overpass, 32nd Avenue South from 32nd to 22nd Street and spend more than $1 million on Transit bus purchases. In 2023, he said, the 52nd Avenue South project west to Sheyenne Street will be finished, the 2nd Street Pedestrian Bridge will be built, more buses will be purchased and a shared use path will be constructed from 32nd to 37th Avenue North. In 2024, he said, the City will finish the remaining portion of 32nd Avenue South to University Drive and Main Avenue from University Drive to 25th Street. He said what the City is requesting now will go through MetroCOG and then to the ND Department of Transportation and the most important thing is to rehab, reconstruct and replace what the City currently has. He said City departments have looked inward versus capacity expansion outward, which ties back to the Long Range Transportation Plan. He said the City wants to improve connections across the river and Drain 27 and Drain 53 in south Fargo are wide crossings and are an impediment. In GO2030, he said, there is a transportation section and a health section. For transportation, he said, pedestrian and bicycle connectivity needs to be improved, and for health, adding to the existing trails is needed to create a loop, which can be used for year-round recreational activities. He said there are three programs: Urban Roads, Transportation Alternatives and Highway Safety Improvement. The Urban Road Program is the penicillin for federal funding of infrastructure, he said, and the first project the City would like to do is replace the North Broadway Bridge, which is closed. Programming this project for receiving Federal Aid now means the City will be able to reconstruct the bridge before 2026, he said.

In response to a question from Commissioner Piepkorn asking if the bridge project is a temporary replacement and a later version will be complementary to the flood protection, Mr. Gorden said it is not, this application would replace the existing North Broadway Bridge at the same elevation; therefore, it will be floodable. He said when the City builds bridges, they are usually 50-year bridges. The North Broadway Bridge could be elevated, he said; however, the cost would be twice as much.

Commissioner Piepkorn said the North Broadway Bridge should be replaced as quickly as possible, it is impacting North Fargo neighborhoods and it should be complementary to the completed Diversion project. He said it does not make any sense to replace this North Broadway Bridge with a floodable bridge, and the City should not be building those anymore.

Commissioner Piepkorn said the City wants to spend money wisely; however, the North Broadway Bridge is closed and traffic is rerouted through a neighborhood and that is not good. He said 2026 is a long time to wait and this should be a Diversion Authority discussion. He said there are two bridges in North Fargo that should be improved and brought out of the floodplain.

Mayor Mahoney said if the North Broadway Bridge is built higher, the price increases and takes out some roads. He said this warrants a deeper discussion. He said the 12th Avenue North Bridge has more traffic than the North Broadway Bridge and it is something the Engineering Department has to look at and show the City Commission options.

Commissioner Gehrig said this topic is important to those who live on the north side of Fargo and the 12th Avenue Bridge is also very important.

In response to a question from Commissioner Gehrig asking if the 12th Avenue Bridge is part of the Federal request, Mr. Gorden said it is not.

Mayor Mahoney said the infrastructure funding that came out of the Federal government recently does pay for bridges; therefore, one of the things he would like as a priority by the City Commission is the 12th Avenue Bridge and the North Broadway Bridge and which one should be first. He said the 12th Avenue Bridge will cost $15 million to $18 million and the Engineering Department should see if they can find funding for both.

Commissioner Strand said when the North Broadway Bridge was brought to the City Commission’s attention, there seemed to be a consensus it would be rebuilt above 37 feet. He said he cannot imagine Fargo would put another dam in that will hold water back that will contribute to flooding.

In response to a question from Commissioner Preston asking if both bridges create ice jams, Mr. Gorden said the river channel gets very wide during a flood and the bridges do not create ice jams.

Mr. Gorden said the City will have $12.5 million annually to spend and ultimately, the City Commission will be making decisions on these projects and he is trying to be fiscally conscious. He said a much higher North Broadway Bridge can be built; however, the $4.5 million projected for the North Broadway Bridge will turn to $10 million or $12 million in a hurry and there will certainly be impacts. He said if it costs the $12.5 million a year the City gets, that would be the one project that can be done. He said the City can build a lesser project and build more of them and to the 12th Avenue Bridge, he likes the idea of getting that bridge out of the floodplain; however, that is four to five times more vehicles a day than the North Broadway Bridge, it is a bi-state bridge and will cost $15 to $16 million dollars. In those situations, he said, both states need to work together and there really needs to be specific grant programs other than an annual obligation.

Commissioner Gehrig said he does not think people will mind if the North Broadway Bridge is flooded for a week every 10 years. He said people just need the North Broadway Bridge back and if it can be done cost-effectively, that is what people would want. He said he does not want it to impact the Diversion; however, he thinks this would have low impact. The 12th Avenue Bridge is the one he is interested in keeping out of the floodplain due to the fact that no matter what, that one needs to be operational or else it does have major impacts, he said.

In response to a question from Commissioner Preston asking about decorative concrete and bricks Downtown, which need work and is that something that would qualify for the Urban Grant Program, Mr. Gorden said the City likes to spend the majority of Federal Aid on a project. He said those repairs could be done with local money.

Mayor Mahoney said there should be a brown bag discussion about the North Broadway Bridge due to the fact that there are arguments both ways.

Mr. Gorden said when the City asks for Federal Aid, it is to supplement sales tax funds. He said when the City has concrete pavement that needs rehabbing, it chews up a lot of money. He said there are 3 and a half miles of existing concrete paving the City would like to fix from I-94 north to 16th Avenue and the third project is a new pedestrian bridge over the Red River at 40th Avenue South. He said it would not be a lifted bridge; however, it would be built at 37 feet. The fourth project is 19,000 feet of path along Drain 27 and Drain 53 near Deer Creek along River Drive from 64th Avenue to 73rd Avenue and the third area is a path on River Drive from Harwood Drive to 40th Avenue. He said there is also a fifth bus purchase for $1.25 million. Other projects for transportation alternatives are paths for safe routes to school, one project connecting the Milwaukee Trail to the Drain 53 trail system and the Rose Creek Golf Course to the east and back to the Oakcreek area, which comes to the City due to flood buyouts and creates opportunities for paths. He said this would be a nice connection to get across the drain onto the Timberline Path area. Highway safety are the last two projects, he said, and are supposed to be small scale and have a big impact. He said there are two intersections the City would like to improve: the left turns at the signals at 19th Avenue North and University Drive and 45th Street and 23rd Avenue South, which is quickly raising up the ranks to be one of the highest crash locations in town. He said another project will be to add an auxiliary lane on 45th Street from 19th Avenue to the I-94 bridge. He said the North Broadway Bridge can be excluded and wait for next year or it can be included; however, he needs direction on that decision.
Commissioner Piepkorn moved the Federal Aid Transportation Project applications be approved, excluding the North Broadway Bridge until there is a clearer plan.
Second by Gehrig.

Commissioner Strand said with the funding for buses, he would challenge that with every opportunity, start adding criteria for environmental and energy resiliency, measure impacts to the environment, the pros and cons of different projects and approaches. He said there are some arguments about electric buses being viable; however, in a year that might be different with new technologies. He said his suggestion is to build this element of review into everything.

In response to a question from Commissioner Preston asking if the North Broadway Bridge is pulled, does that free up some dollars for something else, Mr. Gorden said Fargo competes with West Fargo for those dollars and West Fargo is submitting applications to replace Sheyenne Street from 40th Avenue to 52nd Avenue. He said last year West Fargo was awarded the project on 9th Street north of Main Avenue and Fargo did not get any.

Commissioner Gehrig said he would advocate the North Broadway Bridge is kept in the package. He said the North Broadway Bridge being down longer is not going to help anyone, something needs to be put in and he does not foresee a longer, taller bridge working in the future; therefore, the best option is to keep it.

Commissioner Strand said the suggestion of a brown bag would be relevant for this due to the fact that this needs to be talked through. He said the City does not let businesses or homeowners build along the river, there are setbacks, there are not different rules for different people and he does not think the City should be putting a bridge in the floodplain and creating a barrier. He said he sees double standards and does not see himself ever voting to support building a structure below the new flood level of 37 feet.

Mr. Gorden said the City floods only once a year for two weeks and it is $4 million versus $12 million. He said a brown bag could be held relatively soon. He said the applications have to get to the NDDOT by the end of the year. MetroCOG wants to act on them the first 10 days in December, he said, and this topic can be revisited in a couple weeks and get some direction on the North Broadway Bridge.

City Engineer Brenda Derrig said there is process for the North Broadway Bridge. She said a survey was done, Engineering met with consultants recently to talk about a process and the thought was this will be back to the City Commission with a brown bag meeting to talk about the options. She said perhaps some additional money can be found somewhere to add on to the Federal money to help raise the North Broadway Bridge. The list is due before that brown bag could be scheduled, she said; therefore, by putting it on the list, it gives the City a placeholder just knowing with this new Infrastructure Bill, there may be some additional funds.
Commissioner Preston moved to amend the motion to place the North Broadway Bridge back on the list.

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.

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

At 6:26 p.m., the Board took a five-minute recess.
After recess: All Commissioners present. Mayor Mahoney presiding.

First Reading of an Ordinance Enacting Sections 5-0400 Through 5-0411 of Article 5-04 of Chapter 5 of the Fargo Municipal Code Relating to the City of Fargo Police Advisory and Oversight Board:
In response to a question from Commissioner Gehrig asking if anything has changed since the last time this Ordinance was presented, Assistant City Attorney Nancy Morris said there have been no changes.

In response to a question from Mayor Mahoney asking for an explanation of Ordinance versus policy, Ms. Morris said in drafting this Ordinance she looked at other Ordinances and if this could be a policy by Resolution and it could be; however, there is a question of how does this Commission wish to proceed. She said it was presented in Ordinance form thinking that would be the most transparent and it would have the City Commission deciding what the terms would be rather than a Board appointed by the Mayor. She said that is how it is presented now and it certainly could be changed as the City Commission wishes.

Chief Zibolski said from a community perspective, should there be any changes or amendments to the Board itself, it would involve first and second reading and public input making sure the public’s voice is not lost.

Commissioner Gehrig said his concerns are the same as last time. He said there are many Boards that are important to people that are policies. He said the City Commission can put into law that there has to be this Board; however, to give the specific make-up and what is qualifying and what is disqualifying, such as a member cannot be a felon, those are the decisions the City Commission should make. He said when this City Commission is gone, the new City Commission should be able to decide who makes up the Board. That is why it is a bad idea to put this into law and it is a better idea to put them in policy, he stated. Over the last several years it has been decided to handcuff future City Commissions and make these all laws instead of policies, he said.

Commissioner Piepkorn said Police Chiefs change, City Commissioners change, Mayors change and this is not appropriate. He said it is a wonderful concept; however, to have an Ordinance is a big step.

Commissioner Strand said he had questions about this and he got his questions answered, including whether somebody who has had previous involvement with law enforcement can or cannot apply to be on this Board and his questions were satisfied. He said maybe down the road it could be modified as laws change; however, for the moment he is comfortable with where it is. He said it will be good to get it started, see how it works and to step up community engagement. He said the community needs this.

In response to a question from Commissioner Piepkorn asking if there are really going to be convicted felons on an oversight board for the Police, Commissioner Strand said he is not determined to punish people for their whole existence for something they did in the past and have satisfied what the court required of them.

Commissioner Preston said she is thrilled to see this happening and there has been a lot of work that has gone into it. She said this is an Ordinance, it is not something that is going to the public vote; therefore, it is more easily changeable. She said she thinks the community will appreciate the transparency this establishes.
Commissioner Strand moved an Ordinance Enacting Sections 5-0400 through 5-0411 of Article 5-04 of Chapter 5 of the Fargo Municipal Code Relating to the City of Fargo Police Advisory and Oversight Board be placed on first reading.

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

Elimination of the Wildlife Management Program at the Conclusion of the 2021-2022 Hunting Season Approved: Ordinance Repealing Article 12-04 of Chapter 12 of the Fargo Municipal Code Relating to Wildlife Management Program-Regulations to be Placed on First Reading at the Next Regular Meeting of the Board:
Fargo Police Chief David Zibolski said he previously brought forward public safety concerns regarding the continuation of the Fargo Wildlife Management Program. He said the Program was created by Ordinance in 2006 and identified the Fargo Police Department as the oversight department. He was directed to hold a public meeting regarding the Program, he said, and that was held on June 24, 2021 with the findings presented to the City Commission on June 28, 2021. He said as a result of the input from the public meeting he requested, and the City Commission approved, the creation of a Study Group to review the public safety concerns, as well as operations, structure and oversight of the Wildlife Management Program. The group contained members from the Fargo Park District and the ND Game and Fish Department, he said, and the group's initial findings failed to address the public safety concerns. He said he asked for the study group to reconvene to look at that concern and on July 21, 2021, the City Commission approved the Wildlife Management Program for 2021-2022 allowing any future study group recommendations to be implemented. Subsequent to a second meeting of the study group, he said, no significant public safety issues were addressed and since the completion of the study group's work, he received a packet of petitions containing signatures of more than 300 persons, both City residents as well as Fargo-Moorhead regional residents who regularly utilize Fargo’s parks. The petitions were signed supporting the elimination of the Wildlife Management Program due to concerns by these citizens regarding their safety, he said, and in terms of operation and oversight of the Program, neither the ND Game and Fish Department nor the Park District has any interest in taking over the program. He said he recently spoke with Park District Director David Leker, who informed him the Park District had also received numerous petitions advocating elimination of the Program due to public safety concerns. He said if the City eliminated the Program, he did not believe the Park District would have an interest in taking it over. He said the Program creates an easy method for a very small amount of hunters - no more than 45 - to hunt areas mostly within the City during specific times; however, the City has grown greatly in population and in usage of the parks and recreation areas and this brings an obvious conflict in terms of community members' ability to safely utilize the park system. He said with substantial public land opportunities within the Fargo area for bow and arrow hunters to otherwise safely hunt deer, the elimination of this program would in no way take away the hunting abilities of the 45 applicants. However, he said, continuation of the program, based on public input received, is having an adverse effect on public usage of the public park and recreation areas and creates an unnecessary public safety risk.

In response to a question from Commissioner Gehrig asking what the public safety concerns are when there have been no accidents, Chief Zibolski said arrows can go in a lot of different directions. He said 94 deer have been harvested over the last four hunting seasons; however, reports show 154 arrows were shot during that time and he does not know where those arrows went. The potential danger is growing for a possible accident with increased park usage as the City's population has grown significantly since the program started in 2006.

Commissioner Gehrig said there are more accidents in other recreational activities, such as basketball, skiing, gymnastics, hockey and skateboarding, than those involving the archery hunt in the City and no property damage has been reported. He said bow hunting for deer might be the safest program in Fargo.

Commissioner Piepkorn said the City should take a step back and develop a long-term comprehensive Urban Wildlife Management Program and work with Cass County, the Park District and the ND Game and Fish Department. He said a growing herd of deer in the City could bring in diseases, cause more car and motorcycle accidents and damage vegetation along the river and at people's homes. It is going to cost taxpayers a lot of money, he said, if the City has to take steps later to try to control the population and he is concerned about animal activists trying to dictate Fargo’s policies.

Commissioner Strand said there are hunters throughout North Dakota and hunting has been a part of growing up in the State; however, he does not think discharging weapons in the City should be allowed and someday, there could be an incident the City regrets.

Commissioner Preston said it is not only a public safety problem, it is also the perception of safety and the signs warning people to "enter at their own risk" are intimidating. She said the trails along the river are very much in the trees and people have no idea what is in the woods.

Mayor Mahoney said there have not been many problems with the deer in recent years and the herd seems to be doing fine. He said there is a safety concern; however, no one seems to want to do anything about it. He said neither the Park District nor the ND Game and Fish Department want to take over the program and he would rather the Police be out taking care of problems in the community rather than taking care of deer.
Commissioner Preston moved the Wildlife Management Program be eliminated at the conclusion of the 2021-2022 hunting season and the Ordinance Repealing Article 12-04 of Chapter 12 of the Fargo Municipal Code Relating to Wildlife Management Program-Regulations to be received and filed and placed on first reading at the next Regular Meeting of the Board.

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

Recommendation for a Massage Therapy Establishment Program and First Reading of an Ordinance Relating to Massage Therapy Establishments Delayed for Two Weeks:
Director of Environmental Health Grant Larson said in 2020, the Mayor and former Police Chief David Todd received letters from citizens concerned about unregulated massage therapy establishments in the City that may employ or offer massage services by unlicensed individuals. He said based on the letters and other public interest, the City formed a committee to research the validity of implementing a local Ordinance and inspection program. The ND State Board of Massage Therapy only investigates complaints and takes disciplinary action against licensed massage therapists practicing in the State, he said, and directs any complaints involving unlicensed practices to local law enforcement. However, he said, the City has no authority to regulate these establishments for unlicensed practices and the proposed program fills this void by curbing unlicensed practices and inspecting establishments for unsanitary conditions. He said the program does not regulate individual licensed massage therapists; it regulates the establishment. At the February 22, 2021 City Commission meeting, the City Commissioners directed the committee to work with the City Attorney to draft an Ordinance pertaining to the regulation of massage therapy establishments, he said, and since then, the City has held numerous public meetings with local massage therapists to help develop a program.

Mayor Mahoney said the City Attorney has requested that a vote on the Massage Therapy Establishment Program and an Ordinance Relating to Massage Therapy Establishments be delayed for two weeks in order to revise the language of the Ordinance.

Ballot Question on Term Limits Ordinance Approved:
City Attorney Erik Johnson said at the July 12, 2021 City Commission meeting, he was directed to draft a Resolution for residents to decide to keep or discontinue term limits for Fargo City Commissioners and the Mayor. He said the proposed Resolution would authorize and direct the City Auditor to take the appropriate steps to place such a ballot question before the City electorate. He said Commissioners and the Mayor are currently limited to three successive four-year terms or 12 years, while a Mayor may get another term of four years if they have served as a City Commissioner for three consecutive terms.

Mr. Johnson said the ballot itself is going to be a short advisory vote, such as “do you suggest the term limits Ordinance be repealed or not.”

Commissioner Preston said the Task Force has this on its docket and will try to complete its work before the deadline to get something on the ballot. She said it seems one of the issues was not answered, specifically the argument that came from the Mayor in regards to successive, which was not fully defined by the opinion.

Mr. Johnson said the Court made a determination and it seemed as if it was based on the definition of what a four-year term means, and the Court's opinion certainly acknowledged the fact the Ordinance talks about what is successive and what is not. He said in this particular case, the opinion was that even an interrupted situation was had with Mayor Walaker’s death and the partial term, that interruption did not cause it.

In response to a question from Commissioner Preston asking if it would be worthwhile to have some language so people would understand what this is about, Mr. Johnson said the ballot question would simply point blank ask should it remain in place or should it be repealed and generally, ballots are not wordy.

Commissioner Preston said she would suggest this go to the Task Force to have a more in-depth discussion about what would be clear on the ballot and whether it should be advisory or not. She said maybe it should be a full-fledged ballot question that would say “yes” or “no” and is not advisory.

Commissioner Gehrig said by putting this on the ballot if people vote to get rid of term limits, there would not be term limits, so it is not like they are saying what they would prefer. He said the City has had term limits for more than 30 years and the people of Fargo have not been asked if they want term limits and the best way is to ask them at Election time. There were reasons why it was put in 30 years ago, he said, you may or may not agree or disagree with why they were there; however, at some point the people of Fargo should be asked how they want to be governed.
Commissioner Gehrig moved to place a question on the ballot to have an up or down vote on term limits.
Second by Preston.

Commissioner Strand said the City Commission just created a Task Force to answer these questions and there was a lawsuit that addressed the vagueness of the current Ordinance. The only place this should go is to the Task Force and it is more than term limits, he said.

Commissioner Gehrig said the current Ordinance is what would be debated and voted on, so something could go on the ballot reading something such as “currently the City Commission has term limits, a person can serve three successive terms, do you want to continue this yes or no.” That is what the Task Force should focus on is cleaning up the current language, he said, and the Task Force should have nothing to do with if the City should have term limits or not. He said he would rather have the people of Fargo decide if they actually want term limits instead of a committee speaking for 125,000 people. He said it has been 30 years and that is far too long.

In response to a question from Commissioner Preston asking if there is a ballot question “yes” or “no,” is it usual that the actual language is then developed in more of the administrative level or on the Commission level, Mr. Johnson said he thinks what Commissioner Gehrig is saying is the Task Force would change the language and that is what would be approved or not approved at a public level. He said what Commissioner Gehrig was saying is a good synopsis, saying instead of an advisory vote, the ballot question empowers the voters to reject the current Ordinance as it is drafted, then it gets rejected and you infer voters do not want term limits of any type and they are rejecting this specific Ordinance. On the other hand, he said, if they were to not repeal the Ordinance, there is an acknowledgement that it needs to be cleaned up, so that would be the job of the Task Force, to look at what that might be and that does not put every question in front of the voters, only the repeal question.

Commissioner Preston said this on the list for the Task Force, this is about putting the question on the ballot and the Task Force would still look at the content.

In response to a question from Commissioner Strand asking why would the City Commission put the cart before the horse, Commissioner Preston said public input is needed on whether to have term limits or not, whether the Task Force agrees with that or not, it needs to be on the ballot.

Commissioner Strand said if the City Commission is voting to put something on the ballot, the City Commission is deciding something and is putting this on the ballot before the Task Force starts discussing it. He said at the July 12th meeting there were several points discussed and the third vote was to create the Task Force. He said that was a natural progression of the thinking processes, look at all of these topics, do not paint anybody into a corner and presume what they are obligated to decide, let them just discuss, research and report back in a timely fashion.

Commissioner Preston said the Task Force will have an important role in looking at the content of the Ordinance and determining whether the court's opinion and all the arguments inside that opinion are carefully vetted and answered with the language. She said she does not see this as excluding the Task Force from the discussion.

Commissioner Strand asked how many terms, how long are the terms, are they successive or are they not successive, can someone fill a term, no one knows the answers; however, the City Commission is going to decide to put it to a vote with the ambiguity that is implicit in that it creates more vagueness.

Commissioner Preston said those are the questions the Task Force would answer and the only question they would not answer is whether it goes on the ballot or not.
Commissioner Strand moved to refer the topic to the Election and City Government Task Force to study, research and make recommendations to the City Commission.
The motion died for the lack of a second.

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

Applications for Property Tax Exemptions for Improvements Made to Buildings Approved:
a. Shauna Erickson-Abou Zahr and Abdallah Abou Zahr, 3115 Peterson Parkway North (3 year).
b. Lee and Ashley Pratschner, 3120 Hickory Street North (3 year).
c. Scott and Dolores Wood, 1922 East Rose Creek Parkway (3 year).
d. Charles and Christen Mathson, 5315 18th Street South (3 year).
e. Darrell and Cheryl Troftgruben, 3030 20th Street South (3 year).
f. Sigurd and Anita J. Folden, 1518 3rd Street North (5 year).
g. John E. and Karen K. Ringsrud, 2319 26 1/2 Court South (5 year).
h. Susan Heidenreich, 1637 5th Avenue South (5 year).
i. Jeffrey and Catherine Huseby, 29 South Woodcrest Drive North (5 year).
j. Aaron and Holly Nissen, 513 24th Avenue South (5 year).
k. James K. and Alison B. Leiman, 1449 10th Street South (5 year).
l. John H. and Kristin E. Osborne, 1103 8th Avenue South (5 year).
m. John and Kristin Osborne, 1353 9th Street North (5 year).
n. Cody J. Hellquist, 1213 1st Street North (5 year).
o. Robert and Rebecca Dura, 3308 Longfellow Road North (5 year).
p. Gregory and Margaret Wheelden, 328 28th Avenue North (5 year).
q. Robert Hearne, 3225 Elm Street North (5 year).
r. Larry and Robin Olson, 3531 Longfellow Road North (5 year).
s. Larry and Robin Olson, 3531 Longfellow Road North (5 year).
Commissioner Piepkorn moved the applications be approved.

Second by Strand. On call of the roll Commissioners Piepkorn, Strand, Gehrig, 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, November 29, 2021.

Second by Piepkorn. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 7:24 o’clock p.m.