Board of City Commissioners - October 18, 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, October 18, 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 Finance Department’s purchasing card program has earned more than $2 million in rebates for the City; the Nurse-Family Partnership program through Fargo Cass Public Health has openings for enrollment; the Library received the 2021 ND Star Library Award from the ND State Library; the Library will host a Recognizing Reptiles event October 21st featuring reptiles from the NDSU Herpetology Club and a Murder and Mayhem Trivia event with prizes on October 27th; the Police Department’s Community Engagement team hosted a Multi-Cultural Committee event; the Bismarck Water Plant Superintendent sent a message congratulating the City on its improvements to the City’s water quality; and videos were shown highlighting events on Indigenous People’s Day and a new MATBUS wrap showcasing the City of Fargo.

Order of Agenda Approved:
Commissioner Piepkorn moved the Order of the Agenda be approved.

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

Minutes Approved:
Commissioner Preston moved that the Minutes of the Regular Meeting of the Board held on October 4, 2021 be approved as read.

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

Consent Agenda Approved:
Commissioner Strand moved the Consent Agenda be approved as follows:
1. 1st reading of an Ordinance Amending Sections 25-1506, 25-1507 and 25-1508 of Article 25-15 of Chapter 25 of the Fargo Municipal Code Relating to Alcoholic Beverages.
2. Amended Gaming Site Authorization for Northern Prairie Performing Arts at O’Clevy’s at the Ramada.
3. Applications for Games of Chance:
a. El Zagal Holding Company for a raffle on 2/19/22.
b. Centennial PTO for bingo on 10/29/21.
c. River Keepers for a raffle on 10/28/21.
d. Shiloh Lodge of Fargo for a raffle on 5/7/22; Public Spirited Resolution.
e. The Cullen Children’s Foundation for a raffle on 11/4/21.
f. The Village Family Service Center for a raffle on 11/12/21.
4. Agreement with Susan Davidson for the Customer Service Representative III position.
5. Change Order No. 7 for an increase of $9,995.00 for Project No. FM-16-A1.
6. Modifications to the substantial completion items with an anticipated completion date of 12/23/21 for Project No. FM-19-F1.
7. Bid award to Ti-Zack Concrete, Inc. in the amount of $713,859.00 for Project No. PR-21-E.
8. Expanded scope at the 7th Avenue North site in the amount of $7,544.00 and additional emergency storm sewer repair at 2363 55th Street South in the amount of $2,800.00 for Project No. UR-21-D1.
9. First Amendment and Complete Restatement of The Maplewood Estates Declaration of Covenants, Conditions, Restrictions, Reservations, Easements, Liens and Charges.
10. Purchase Agreement for the sale of City owned property located at 1367 Elm Circle North in the amount of $468,000.00 (Project No. FM-19-E).
11. Permanent Easement (Retention Pond and Concrete Driveway) with Earlyne Hector.
12. Licensed User Agreement with Ticketmaster LLC (RFP21088).
13. Resolutions Authorizing the Issuance and Sale of $259,000.00 and $4,361,000.00 City of Fargo Solid Waste Revenue Bond, Series 2021B and Series 2021C (Attachments “A” and “B”).
14. Receive and file Financial Status Report Year to Date through 9/30/21 for major operating funds (unaudited).
15. Receive and file General Fund – Budget to Actual through September 2021 (unaudited).
16. Receive and file City Investment Holdings as of 9/30/21.
17. Agreement for Services with the following:
a. Clets Ofere.
b. Alexander McKinney.
c. Bernadette Chinema.
d. Chad Simmons.
e. Beauty Mugadza.
f. Leontyne Famolu.
g. Tenezee Steele.
18. Agreement with AE2S Communications for the 2022 tobacco cessation campaign.
19. Agreement for Services with Metro COG to work with the Cass Clay Food Partners Steering Committee.
20. Community Development Block Grant (CDBG) and HOME Investment Partnerships Program (HOME) Amendments to 2021 Action Plan and 2020-2024 Consolidated Plan (Attachment “C”).
21. Resolution Approving Plat of Timber Parkway Sixth Addition (Attachment “D”).
22. Agreements to provide in-kind contributions to Brapper Holdings LLC for the PrX Project.
23. Extension of unpaid leave for Todd Fugere through 1/19/22.
24. Bid award to Sanitation Products in the amount of $462,570.00 for two, 3 wheeled mechanical street sweepers (RFP21160).
25. Bid award to Swanston Equipment in the amount of $190,200.00 for one loader mounted snow blower (RFP21163).
26. Bid award to Swanston Equipment in the amount of $110,082.80 for one excavator with sand bucket (RFP21164).
27. Bid award to Sanitation Products in the amount of $89,031.00 for one rear load refuse body (RFP21165).
28. Bid award to Sanitation Products in the amount of $65,253.00 for one hook hoist refuse body (RFP21166).
29. Natural Gas Service Agreement at the new Scale House and Maintenance Facility in the amount of $430.05.
30. Bills in the amount of $11,343,106.72.

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.

Change Order No. 1 for Improvement District No. BR-22-A0 Approved:
Commissioner Strand moved Change Order No. 1 for an increase of $71,026.00 for Improvement District No. BR-22-A0 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.

Final Balancing Change Order No. 2 for Improvement District No. BR-20-B1 Approved:
Commissioner Strand moved Final Balancing Change Order No. 2 for an increase of $24,929.92 for Improvement District No. BR-20-B1 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.

Negative Final Balancing Change Order No. 1 for Improvement District No. BN-20-H1 Approved:
Commissioner Strand moved Negative Final Balancing Change Order No. 1 in the amount of -$695.20 for Improvement District No. BN-20-H1 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.

Memorandum of Offer to Landowner for a Permanent Easement (Street and Utility) and Easement (Temporary Construction Easement) with Fargo Custard 182, LLC Approved (Improvement District 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 a Permanent Easement (Street and Utility) and Easement (Temporary Construction Easement) with Fargo Custard 182, LLC in association with Improvement District No. BR-22-A0. He said a final purchase price has been reached and authorization from the Board is requested to proceed with the purchase.
Commissioner Strand moved the Memorandum of Offer to Landowner for a Permanent Easement (Street and Utility) and Easement (Temporary Construction Easement) with Fargo Custard 182, LLC in association with Improvement District BR-22-A0 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.

Memorandum of Offer to Landowner for a Permanent Easement (Street and Utility) with Monge Family Partnership, LLLP Approved (Improvement District 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 a Permanent Easement (Street and Utility) with Monge Family Partnership, LLLP in association with Improvement District No. BR-22-A0. He said a final purchase price has been reached and authorization from the Board is requested to proceed with the purchase.
Commissioner Strand moved the Memorandum of Offer to Landowner for a Permanent Easement (Street and Utility) with Monge Family Partnership, LLLP in association with Improvement District BR-22-A0 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.

Resident Comments:
There were no resident comments.

COVID-19 Update:
Fargo Cass Public Health (FCPH) Director Desi Fleming said Statewide, cases appear to be plateauing with just over 3,200 active cases. She said Cass County has about 599 active cases; however, there have been 38 deaths so far this month Statewide. She said hospitalizations have increased by 27 since the last report and 184 people Statewide are hospitalized and space and staffing resources continue to be stretched to capacity. The age category with the most active cases in the State is the zero to 11 year olds, she said, who are presently not able to be vaccinated, followed by the 30 to 39 year olds. She said children are generally doing well if infected; however, serious complications are increasing as case prevalence increases. She said children are also a part of the transmission chain; therefore, they may expose others in the household or school who may or may not be vaccinated, giving the virus more avenues to spread. She said the efficacy and safety of the COVID-19 vaccines are incredibly good; however, no vaccine is 100 percent, especially with the Delta variant. There has been an increase in breakthrough cases, she stated, and breakthrough data is available on the State dashboard. She said the bottom line is breakthrough hospitalizations and deaths, although increasing with Delta, remain below 1 percent of total cases. Vaccination offerings continue, she said; however, demand has definitely changed. Initial vaccination rates have increased at a slow rate, she stated, and the 12 to 18 year olds are still the least vaccinated group. FCPH, along with others in the community, are offering booster doses for those who had the Pfizer vaccine, she said, and eligibility criteria for the booster are adults age 65 and older, adults with underlying health conditions or adults at risk for occupational or institutional exposure. FCPH is hosting booster clinics on Saturdays in October and one in November by appointment, she said, and this past Saturday, 698 booster doses were given. She said these clinics have been a bright spot for staff as the people coming in are excited to be vaccinated and appreciative of the services and the staff; therefore, it has been a very positive experience for everybody, which was needed. She said FCPH should know more about Moderna and Johnson & Johnson booster vaccines by the end of this week and the CDC will meet on pediatric vaccines the first week in November. There are 65 million people in the U.S. yet to be vaccinated, she said, and until that number decreases, the U.S. will not be done with COVID-19. Vaccination remains the best tool, she said, and for the physical and emotional health of the community, please get vaccinated.

Ordinance Relating to Franchises and Contracts to be Amended to Require a Large Volume User to Apply to the City Commission for Eligibility, and an Electric Franchise Ordinance be Received and Filed:
City Administrator Bruce Grubb said Xcel Energy and Cass County Electric Cooperative both supply electricity to the City. He said Cass County Electric Cooperative operates under a Franchise Agreement and Xcel Energy operates under a Franchise Ordinance, yet both are similar in nature and essentially allow the utilities to locate infrastructure in the public rights-of-way; however, one fundamental difference is Xcel Energy is regulated by the Public Service Commission and Cass County Electric Cooperative is not. The City has been working on a new, updated Franchise Ordinance for a number of years, he said, as the original Ordinance dates back as far as 1911.

Assistant City Attorney Nancy Morris said some of the discussion with a new Ordinance was what was overlapping and what was consistent. She said capital improvement, planning, energy innovation and insurance were discussed as well as requirements for insurance, tree trimming standards and federal regulations that allow street openings and restoration for relocation of utilities in the event of construction. She said the franchise fee would be developed by Resolution, which will be presented at the time of final approval and adoption of the Ordinances. The primary purpose for the Franchise Agreement is regulation of the public rights-of-ways, she said. One provision unique to the Xcel Energy agreement in the present Ordinance is a large volume user that uses more than 20 billing cycle megawatts, she said, which is quite rare and quite expensive, has an opportunity for a reduction in the franchise fee for a period of time. As written, she said, the large volume user provision of the Ordinance is automatically given if the user is eligible. Other options, she said, would be to take the automatic provision out of the Ordinance or revise the Ordinance to require the potential large volume user to make application to the City Commission for determination of eligibility. The Ordinance is not presently written with the requirement to apply for the provision; therefore, if that is the City Commission’s choice, she would suggest parameters for eligibility be included, such as job requirements. She said the other part of the Ordinance is adopting an acting Ordinance and that outlines some of the North Dakota Century Code requirements, such as a 20 year max time for a Franchise Agreement, non-exclusivity except for as provided by the Public Service Commission and allowing for municipal power in the event that was a choice. She said it also indicates the Ordinance will be maintained at the Auditor's office rather than being published on the Municipal Code site and is easily accessible. She said the only decision now is to approve the Ordinance as written with the large volume user in the Ordinance, the second recommended motion would be amending the Ordinance to remove the large volume user entirely and the third option would be to amend the Ordinance to have the large volume user apply to the City Commission for determination of eligibility.

In response to a question from Commissioner Strand asking if there is a way the large volume usage eligibility topic can connect to the Tax Exempt Review Committee if the same company is applying for tax breaks and incentives, Ms. Morris said the Ordinance is to address a company’s electricity use and the costs for electricity; it does not address tax breaks or incentives.

In response to a question from Mayor Mahoney asking if a large volume user gets a 20 percent discount as written in the Ordinance now, Ms. Morris said it is a complicated formula; however, it does reduce the percentage over a certain amount of usage. She said it is not 20 percent straight across the board.

Commissioner Preston said she would feel more comfortable if this went through some type of review process so it is not automatic. She said it should be viewed to some degree as an incentive.

In response to a question from Commissioner Preston asking what parameters would apply, Ms. Morris said the parameters can come later; the question now is does the City Commission want the large volume usage to be automatic or something a company should be seeking.

In response to a question from Commissioner Gehrig asking is there any large volume users in Fargo now, Ms. Morris said she is not aware of any.

In response to a question from Commissioner Gehrig asking what type of business would use that much electricity, Ms. Morris said a bitcoin data mining business could be a large volume user.

Commissioner Piepkorn said he is glad the new CEO of Xcel is supportive of burying overhead lines, which will be popular in older neighborhoods.

Commissioner Piepkorn moved the Ordinance Enacting Article 24-05 of Chapter 24 of the Fargo Municipal Code Relating to Franchises and Contracts be amended to require a large volume user apply to the City Commission for eligibility, and an Electric Franchise Ordinance be Received and Filed and placed on first reading at the next Regular Meeting of the Board.

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.

Quarterly Report on Hate Crimes:
Fargo Police Chief David Zibolski said he conducted an audit to determine if there have been any cases filed under the City's new Hate Crimes Ordinances and to date, there have been no incidents reported under these Ordinances. He said he has been reviewing all cases submitted with a bias designation as indicated by the responding officer. The Federal Bureau of Investigation (FBI) established guidelines for the collection of hate crime data as part of its Uniform Crime Reporting Program, he said, and the guidelines also recommend a secondary review of these cases to ensure the facts of the case support a hate crime designation. So far in 2021, he said, Fargo Police officers have taken seventeen reports where the initial responding officer indicated a possible bias by the offender. Of these seventeen reports, he said, three had facts that supported the original designation after the secondary review. The first case was a suspect who allegedly assaulted a juvenile Black female, he said, the suspect was arrested for aggravated assault and the FBI and U.S. Attorney's office are currently reviewing the case for prosecution under Federal hate crime statutes. A second case, he said, was a report from a Black female about an incident that occurred at a truck stop. He said after officers reviewed security video, the suspect could not be identified and no license plate was provided. He said the case was deemed inactive until further information becomes available. The third case, he said, was officers witnessed a disturbance Downtown where the suspect pulled a knife and walked aggressively towards the victim. He said the suspect was Black and the victim was Native American. The suspect was arrested for terrorizing, he said, and the case is pending prosecution; however, the FBI declined to adopt this case for any Federal hate crime violations. In addition to these three incidents, he said, the incident of a suspect allegedly spray painting a statue at St. Mary's Church, even though Police did not find a definitive bias during the investigation, the case potentially fit Federal hate crime statutes due to the fact that it involved damage to religious property. The case is being investigated by the FBI, he said, to see if it fits Federal guidelines, otherwise it will be charged in Municipal Court.

In response to a question from Commissioner Preston asking about the first case discussed and the difference between simple assault and aggravated assault, Chief Zibolski said aggravated assault is a felony, which involves potential prison time. He said a case is reviewed by the State's Attorney's office and then the ancillary review of the hate crime aspects of it are reviewed by the U.S. Attorney's office. He said if the FBI takes the case, the U.S. attorney's office reviews it for Federal hate crime violations and that is a separate prosecution; therefore, the same individual, if the FBI prosecutes the case, would potentially be defending themselves in State and Federal venues. He said Fargo would not charge someone with both the Hate Crimes Ordinances and a Federal crime due to the fact that could be a potential conflict, almost like double jeopardy.

Request to Amend the Class “FA” and “FA-RZ” Alcoholic Beverage Licenses Denied:
City Auditor Steve Sprague said the Liquor Control Board (LCB) received a request to amend the Class “FA” and “FA-RZ” Alcoholic Beverage Licenses so $50,000.00 in food sales, regardless of the amount of alcohol sales, would qualify as meeting the food sales test of the Class “FA” license. He said the current Ordinance reads that alcohol sales are to be adjunct to food sales, something less than the food sales, and the LCB with that in mind recommended denial of this request.

Brent Edison, Vogel Law Firm, representing Northstar Hospitality, d/b/a SouthTown PourHouse, said there is one entrance to the building, there is a kitchen, a full menu of prepared meals and Duane's Pizza is prepared onsite in the kitchen and sold through SouthTown’s point of sale. The lease SouthTown has requires a Class “FA” license, he said, and it was anticipated this was not going to be a problem when SouthTown received its liquor license. He said Mr. Sprague indicated this classification was established before SouthTown applied for a liquor license and SouthTown felt it had been green-lighted that the business plan with Duane’s Pizza could be part of the food component. He said the reporting requirements were submitted and at the request of the City, there was another look, and not including Duane's Pizza sales, the ratio came out at 42 percent food and 58 percent alcohol; therefore, there was a violation. He said the violation is still in litigation and the question about whether to include or not include Duane’s Pizza sold on the premises. He said this is an attempt to see if a resolution can be made and if there is not an Ordinance adopted, the Hearing will proceed. He said change is needed due to the fact that consumer preferences have changed. Customers are buying $8.00 craft brews, $13.00 designer cocktails or an entire bottle of wine with a meal, he said, there are more options and the cost of the alcoholic beverages can easily exceed the cost of the food. He said there is no safe margin and a strict 50-50 ratio and food as an adjunct has a particular meaning. He said changing consumer practices, the practical realities for his client and the possible solutions would include lowering the food percentage from 50 percent. He said Mr. Sprague indicated at previous meetings the food ratio at one point was 65 percent, which was lowered, and he suggests it is time for another change to lower the percentage to 40 percent. The proposed language, he said, is that the Class “FA” license would add the option that either $50,000.00 in food sales per month or 50 percent or more annual gross receipts. He said that change could also be consistent with the Class “FA-RZ” license. Record-keeping requirements would be same, he said, and part of the renewal requirements would be to audit the books and records to make sure the gross revenue exceeds $50,000.00 per month.

In response to a question from Mayor Mahoney asking how the City came to the 50 percent requirement, Mr. Sprague said it was to line-up with State law, which allows two provisions where a minor can be present where alcohol is served.

Commissioner Piepkorn said it is unfortunate, this is an excellent business and the City appreciates having it in Fargo; however, this license was less expensive than some of the other licenses and if the City Commission changes something, it will affect those who own other licenses. He said the LCB was not in favor of this due to the fact that there are rules and SouthTown is asking the City to change the rules so SouthTown fits under the rules. He said SouthTown could buy another license and redo its lease agreement and that would solve the issue.

Commissioner Gehrig said this has been happening for a long time in the City. A Class “A” license is $115,000.00, $15,000.00 more than a restaurant license, he said; therefore, SouthTown has a restaurant license; however, it sounds like SouthTown wants to be a bar and the reason SouthTown does not have a bar license is due to the fact that the City heavily restricts bar licenses. He said there are only 17 bars in Fargo and most people think there are far more than that; however, most places do not meet the 50 percent food threshold; therefore, the City could easily fix the problem and allow businesses to buy a Class “A” license and not heavily restrict them. He said the City has had 17 bar licenses for a long time and the population and growth has ballooned. The free market will work, he said, and the City has been so restrictive to the point where the City is making good businesses look bad and threatening to take away licenses due to the fact that the City has a bad structure. He said the businesses would readily buy a Class “A” license for $15,000.00 more due to the fact that they know it is worth it. He said he is proposing that instead of changing the Ordinance, which is just a way to get around the system, the City needs to change the system and add at least five more bar licenses, which will sell instantly.

Commissioner Gehrig moved the City add five additional Class “A” Alcoholic Beverage Licenses.
The motion died for the lack of a second.

In response to a question from Commissioner Preston asking where the pizzas are prepared at SouthTown, Mr. Edison said there is one kitchen and at one end, the Duane’s Pizza is prepared, at the other end the SouthTown food is prepared, and both go through the same point of sale.

Mr. Sprague said this has gone to court and has been remanded back to the City and there will be a Hearing depending on the outcome of this vote. He said if the City Commission decides to change the license, SouthTown may decide to drop the lawsuit. If the City Commission decides that SouthTown needs to follow the established rules when the license was purchased, SouthTown will proceed with the lawsuit. He said Mr. Edison presented two options for the City, one was to lower the percentage and change the Ordinance the other was to change the Ordinance and set a bar of $50,000.00; however, he did not talk about an option where SouthTown increases its sales, which would then be compliant. He said it is frustrating from staff’s point of view that SouthTown is only saying the City needs to change due to the fact that it did not meet the pre-established percentages.

Commissioner Piepkorn said the idea of increasing the number of licenses could be possible with the outcome of the Census; however, that is a decision for the LCB. He said there are those who will object no matter what the number is, and the City cannot restrict in what part of the City a liquor license goes. If the City sells a license, the owner should be able to use the license where they want.

In response to a question from Commissioner Strand asking what the sentiment is with the new members of the LCB, Commissioner Piepkorn said the vote of the LCB with the new members was 5-0 to deny. He said it is also important to remember SouthTown’s lease requires a Class “FA” license.

Mr. Edison said it has been described that his client did not play by the rules and applied for a certain license and then wants to change the rules after the fact; however, his position is that the City was aware of the Duane’s Pizza arrangement, gave the green-light, said it was a good idea and it would work and in reliance on that, his client put $1 million into the operation and was later told the pizza does not count. He said that is a matter for another day; however, what has been said is not accurate.

Commissioner Preston said she does not support making changes haphazardly due to the fact that when a change is made in one area, it is going to affect a lot of other areas. She said this is another example of trying to develop a new category to try to work around the market and is another indication the City needs to look at the alphabet soup of alcohol licenses. She said she knows it is a challenging issue; however, that is the only way to get to the core problem.

In response to a question from Commissioner Preston asking for an explanation of how this has gone through the court system, Ms. Morris said the City Commission decided that a violation occurred, it was not 50-50, the pizza sales should not be included in the total sales and SouthTown appealed that decision to District Court. She said District Court remanded it back to the City Commission for a full Hearing. She said it was not a decision based on the merits of the case; it was based on the question as to whether or not the licensee had a full opportunity for a Hearing; therefore, the City Commission did find a violation occurred and it will be coming back to the City Commission at some point for a full Hearing and then likely go back to District Court if the City Commission makes the same finding.

Commissioner Strand said the bigger picture is Fargo has a serious alcohol issue and the City Commission cannot lose sight of that for public health and for community wellness; therefore, he is going to be very cautious of opening up the doors to facilitate more.

Mayor Mahoney said Fargo has grown, so in theory the City probably needs to add more liquor licenses. The problem is, he said, some businesses went out of business due to the fact that people are buying more expensive alcohol, wine and beer than they did before; therefore, it is hard for an original business plan to survive. He said the City Commission fights for businesses all the time and did things during COVID-19 to help businesses survive. Commissioner Gehrig made a good point, he said, it is supply versus demand and the Africa International Nightclub's license value now is $250,000.00 or more when it is really only worth $115,000.00. He said one of the solutions could be to give SouthTown a license for $15,000.00 more; however, Ms. Morris said there is not a license available nor could SouthTown apply for the Class “A” license given its current lease terms.

Commissioner Piepkorn said what he hears is “we thought” and “green-lighted;” however, there is nothing in writing and that is why this case is not going to stand up.

Commissioner Strand moved the request from SouthTown PourHouse to Amend the Class “FA” and “FA-RZ” Alcoholic Beverage Licenses be denied.

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.

Consulting Agreement with the Benefactor Group for Fundraising Services Related to the Performing Arts Center Approved:
Assistant City Administrator Michael Redlinger said in February 2020, the Performing Arts Task Force concluded its work and provided a final report to the City Commission. He said following the report, the City Commission engaged the Benefactor Group, a professional fundraising consulting firm, to study the feasibility of raising private funds for the construction, operation and maintenance of a future Fargo Performing Arts Center in conjunction with public funding. The Benefactor Group completed its feasibility analysis and provided a report to the City Commission on June 1, 2021, he said, at which time the City Commission received and filed the report. He said the Finance Committee discussed the next steps for the Performing Arts Center, including the formation of a capital campaign to raise private funds for the project. The Finance Committee unanimously approved a request for a fundraising services proposal from the Benefactor Group to support the proposed capital campaign, he said, and a draft scope of service was provided by the Benefactor Group and has been reviewed by City staff. He said the Finance Committee also authorized staff to solicit a proposal from the FM Area Foundation to serve as the fiscal host for the fundraising campaign, and JLG Architects was approved to update project renderings for use in the Benefactor Group's visits with prospective donors. He said this Agreement will get the City ready for a major gifts initiative, and it will be an exciting time for the project; however, this Agreement will not be authorizing later phases of work. The City Commission will get additional check-in opportunities, he said, and if the City is hearing it is feeling good about fundraising feasibility and continues to see major gifts and interests materialize, the City will be able to continue the engagement; however, there are off-ramps available to terminate the Agreement if the City does not see that the dollars are being put together.

In response to a question from Commissioner Gehrig asking what is the cost of Phase 1, Mr. Redlinger said $12,500.00 for the first two months and in the later phases, it is $10,000.00 per month, trimming down to $8,000.00 dollars per month.

Commissioner Gehrig said he wants to be sure the public knows the City is spending money on this; however, he is glad there are going to be checkpoints and the City can stop if it is not going the way it should. He said having more information will be good so the City can make a wise decision; however, he hopes everyone still agrees if the City does not get 50 percent or more from private equity, it is a no go.

Commissioner Piepkorn said the process has been very methodical and there have been a lot of different twists and turn. He said at the soonest, this project is about four or five years away depending on commitments.

Mr. Redlinger said the City would more than likely be dealing with major gifts and pledges brought in over time; therefore, based on the timeline, if the City executes Phases 2 and 3, the project would not be started until 2025 or 2026, depending on feasibility. He said it is a long-duration activity if it gets to the public phase, the City should know where it is going to be at, whether $12 million or $20 million is committed. He said those pledges will be paid over time and that is where the F-M Area Foundation will come in due to the fact that they will hold those dollars for the City so the City does not have to put those dollars into governmental accounts and be audited. He said this will be a marathon, not a sprint, and that clearly came out in the feasibility analysis with 38 unique visits with donors. He acknowledged that this would be a multi-year commitment on the part of some of the major donors due to the fact that instead of one check for the project, it would be a pledge split over several years.

Commissioner Strand said the community really wants to step-up the arts relationship with the region; however, this started pre-pandemic and he hopes someday post-pandemic the City can be flexible in whatever project it is and knows it will more than likely be a new world due to the fact that the City may not have a Performing Arts Center experiences like there were in the past. He said he is glad the City has not yet committed to a building, plans, specs, architecture and location when some of that might be changing. He said he welcomes input as time goes on and four or five years will help immensely. Another concern, he said, is to be aware of who else is fundraising and how that will impact this project. He said the Plains Art Museum is looking at a major campaign as is the Fargo Park District; however, he embraces the notion to see if it is possible to create something.

Commissioner Preston moved the Consulting Agreement with the Benefactor Group for fundraising services related to the Performing Arts Center be approved as presented.

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

Creation of a 2021 Election and City Governance Task Force Approved:
Assistant City Administrator Michael Redlinger said at the July 12, 2021 City Commission meeting, a directive was given to propose a new Election and City Governance Task Force to revisit the topics of governance models, ward or district systems, number of Commissioners and term limits. No further direction was given with regard to the number of Task Force members, the appointment process, residency requirements, elected vs. non-elected member requirements, voting vs. non-voting members, ex-officio members or Cass County representation, he said. The previous Task Force was comprised of seven members, he said, each of whom was required to be a resident of the City. All seven voting Task Force members in 2016 were direct appointees by the City Commission, he said, and to develop a recommendation for a new Election and City Governance Task Force, he assembled an Internal Recommendations Team including himself, Commissioner John Strand, City Administrator Bruce Grubb and Director of Diversity, Equity and Inclusion Terry Hogan. To maintain an objective and unbiased approach to the overall structure of the Task Force, he said, the internal team felt that no elected officials or City staff member should be either a voting or non-voting Task Force member. Rather, he said, the voting members should be selected from the public at-large through solicitation of a statement of interest and application. He said the Internal Recommendations Team decided on two options to select citizen appointees to the 2021 Election and City Governance Task Force: Option No. 1 is the Internal Recommendations Team meets to determine which of the interested applicants meets the qualifications for Task Force appointment, those applicants would be placed on a "pre-qualified" list and from that list, a randomized process would be used to select nine members to the Task Force; or Option No. 2 is Jeff Schatz, the City's Independent Task Force Facilitator, would screen, interview and appoint applicants to the Task Force in his independent role. He said Mr. Schatz would ensure interested applicants align to the City Commission's goals and objectives for the Task Force. The Internal Recommendations Team would not have a role in screening or selecting Task Force members, he said. He said the support staff would be the City Auditor, Director of Diversity, Equity and Inclusion, City Attorney and an Administrative Assistant. In addition, he said, he recommends inviting members of the Fargo Youth Initiative (FYI) to observe and participate in Task Force meetings as non-voting members.

In response to a question from Commissioner Preston asking what are the goals and objectives for the Task Force, Mr. Redlinger said some of the topics would be Wards, Districts, Term Limits and any other topics that come up.

Commissioner Strand said there was a lot of discussion about having diversity in the applicant pool and how the Task Force is selected and asked how the topics of diversity will be used in the selection process.

Director of Diversity, Equity and Inclusion Terry Hogan said the committee will look at race, ethnic relations in regards to black, white, Native Americans, etc., and may also look at terms such as binary and non-binary.

Commissioner Preston said she was on the 2016 Task Force and she was with the lack of content expertise used to educate the Task Force. She said Mr. Hogan has expertise and hopes there would be other resources available to make sure everyone understands Commission versus Council, Wards versus At-Large and other issues on the agenda.

Mr. Hogan said the City would use utility bills and social media to solicit applicants and there will be a tremendous amount of research to make sure the Task Force is on task and on target when it comes to Commission versus Ward systems and Council versus At-Large and so forth. He said everything would be intact when presented to the City Commission.

Commissioner Strand said it is important that no City Commissioners are at the table fighting for what they want. He said this Task Force has to be for the public good and it is a good idea to have an outside group of people and leader. He said Mr. Schatz is an experienced facilitator and he welcomes the approach.

Mayor Mahoney said there is a good system now and there will be good discussion to see if there is anything better. He said he was looking at the redistricting for the County and the community, and where they live and what is going on have changed; therefore, it will be good to have a discussion about Fargo’s governance structure, how it works, what things are going on and hopefully the Task Force can get some discussion that the community can learn from and understand.

Commissioner Preston moved the creation of the 2021 Election and City Governance Task Force be approved, as presented, and authorize the Internal Recommendations Team to solicit statements of interest from prospective Task Force applicants and to direct City staff to develop a scope and fee proposal with an Independent Task Force Facilitator.

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.

Purchase Agreement for the Sale of the Island Park Parking Ramp Located at 500 Main Avenue Approved:
Strategic Planning Director Jim Gilmour said Bell Bank submitted the only proposal to purchase the Island Park Parking Ramp. He said the proposal meets all of the conditions of the Request for Offers and the Finance Committee is recommending the City Commission proceed with the sale of the property. Bell Bank is making a major commitment to Downtown Fargo, he said, with the purchase of the Island Park Parking Ramp, the purchase and redevelopment of the building at 520 Main Avenue and renovations to its 15 Broadway location. He said the Island Park Parking Ramp would be used for employee parking for 15 Broadway and 520 Main Avenue. Bell Bank has 56 employees at 15 Broadway, he stated, and that number will increase to more than 100 in the next 12 months. He said Bell Bank will have at least 250 employees in 520 Main Avenue when the fit-up of the building is completed. Bell Bank would not be the exclusive user of the parking ramp, he said, and terms of the sale include free public parking evenings and weekends for at least 100 parking spaces. The proposed 501 Main Avenue development will have the option to lease up to 100 parking spaces, he said, and Bell Bank will continue to rent parking to up to 25 of the people currently renting in the ramp. Results of an already approved facility report found a greater than anticipated amount of deferred maintenance of the facility, he said, and is part of a group of facility reports the City contracted on all of the parking ramps and garages. He said the report identified $248,000.00 worth of work needed either immediately or in the near future for the Island Park Parking Ramp; therefore, Bell Bank requested the purchase price be reduced by half of this cost, or $124,000.00. He said the draft purchase price has been reduced from $9,500,000.00 to $9,376,000.00 and a closing of the sale is planned prior to the end of October. He said the Commissioners received a letter today from an attorney for the 501 Main Avenue Development and most of the issues in the letter are things that need to be in the lease between the 501 Main Avenue group and Bell Bank, and that lease should be executed after this closing. He said Bell Bank has in its offer to the City they are committed to negotiating in good faith with the 501 Main Avenue group so that project can proceed.

Commissioner Piepkorn said he would encourage Bell Bank to negotiate in full faith to get all those issues resolved; however, he does not believe that is enough of a reason to delay the sale. He said the issues can be addressed between the two parties and the City Commission will encourage that to happen.

In response to a question from Commissioner Preston who said the City Commission verbalized a lot of support and agreement with the 501 Main Avenue project and they could use the parking ramp and was there anything in writing in regards to the parking, Mr. Gilmour said the City Commission accepted the offer for the 501 Main Avenue property; however, the City continues to work with some title issues with that property and there is no signed or written agreement with 501 Main Avenue.

In response to a question from Commissioner Strand asking how much money is invested in the Island Park Parking Ramp and over the years and are there any other examples of the City having a public TIF project sold to the private sector, Mr. Gilmour said the Block Nine project is one where it is will be sold at the end of the TIF. He said the construction cost for the ramp was about $4.5 million and the City paid about $900,000.00 for the land. He said it was paid for with a combination of TIF funds; however, banks were renting parking spots, which was a lot of the income and there was a Special Assessment District. He said Bell Bank has purchased the Bank of the West building and making major renovations to the building and is discussing improvements to the parking ramp including adding another level, which would add another 80 parking spots.

Commissioner Piepkorn moved the Purchase Agreement for the sale of the Island Park Parking Ramp located at 500 Main Avenue 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.

Applications for Property Tax Exemptions for Improvements Made to Buildings Approved:
a. Christopher and Jolene Garty, 45 Fremont Drive South (3 year).
b. Jon and Michelle Ellingson, 2507 32nd Street South (3 year).
Commissioner Preston moved the applications 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.

Amy Ouren Appointed to the Library Board:
The Board received a communication from Mayor Mahoney recommending that Amy Ouren be appointed to the Library Board to fill the vacancy created by the resignation of Whitney Oxendahl whose term would have expired on June 30, 2022.

Commissioner Gehrig moved Amy Ouren be appointed to fill the unexpired term of Whitney Oxendahl for a term ending June 30, 2022.

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.

Commissioner Preston moved that the Board adjourn to 5:00 o’clock p.m., Monday, November 1, 2021.

Second by Piepkorn. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 6:27 o’clock p.m.