HomeMy WebLinkAboutCCMinutes_2016_06_14 430
Brookings City Council
June 14, 2016
The Brookings City Council held a meeting on Tuesday, June 14, 2016 at 6:00 p.m., at
City Hall with the following members present: Mayor Tim Reed, Council Members Keith
Corbett, Dan Hansen, Ope Niemeyer, Nick Wendell, and Patty Bacon. Council Member
Mary Kidwiler was absent. City Attorney Steve Britzman, City Manager Jeffrey Weldon,
and City Clerk Shari Thornes were also present.
Executive Session. A motion was made by Council Member Hansen, seconded by
Council Member Corbett, to enter into Executive Session at 5:00 p.m. for purposes of
consulting with legal counsel regarding proposed or pending litigation or contractual
matters with the City Council, City Clerk, City Manager, and Mike Luce (via phone),
Attorney with Lynn, Jackson, Schultz and Lebrun present. The motion carried by a
unanimous vote. A motion was made by Council Member Corbett, seconded by Council
Member Wendell, to exit out of Executive Session at 5:24 p.m. The motion carried by a
unanimous vote.
Consent Aqenda. A motion was made by Council Member Hansen, seconded by
Council Member Corbett, to approve the Consent Agenda. The motion carried by the
following vote: Yes: 6 - Corbett, Niemeyer, Hansen, Reed, Bacon, and Wendell;
Absent: 1 - Kidwiler.
3.A. Action to approve the agenda.
3.B. Action to approve the May 10 and May 17 City Council Minutes.
Librarv Services Director. Ashia Gustafson was introduced as the new Director of
Library Services.
Mavor's Annual State of the Citv Messaue. Mayor Reed presented his annual State
of the City Message.
"A city is not gauged by its length and width, but by the broadness of its vision and the
height of its dreams." - Herb Caen
"A Financially Healthy and Growing City.
• Population: 2015 Census Estimate 23, 657. A 7% increase since 2010 Census
(1.5% Annualized).
• Aa3 Bond Rating
• $1.6M General Fund Surplus for 2015
• Healthy Reserves
• 2014 Property valuation increased $52.8 M (2.2% Growth)
• Liquor Store - Record Net Profit of$608,012
• Safe City/ Drugs are an issue
$6,500,000 ---_-------- ----------
- -- $850,000 ---
2016 up 7.5$9'0
$6,000,000 _ Thru Apr'i( - - - $800,000 ------------—
$5,5pp,Opp ---------- ---- ------
$750,000 _ .. ------- -- - ---------------
$5,000,004 — -------------- $700,000
$4,5(�,ppp - ---------- - _ _._...-- $65Q,000 --
$4,0�,(100 _ ._._._..�__...___,_._._.._;..,__..,.....__,__..�_.� $600,000
10 11 12 13 14 15 10 11 12 13 14 15
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19,000 - ----- - ----__---------
_._ $so,000,000 --- -- ---
ss,soo - -- --------__-- ---- S�o,000,000 -
---- -- - - -- - -
+aoz
ss,000 - -- --- ���s --- - —
S4o,000,000 -
Z�,soo -------------------- -_—_------- $zo,000,000 ----
- - ----�-- , -.:�--
f�#.��.'s�'-s�tta�
2C11S Unemployment 2,9% $O .�, <,�,,;;{;�:
17,000 -.--_.....,�_.��. �.___T_.._.�..___..�__�__...._� ��.__.7_____�.__._.��.-..�----,
10 11 12 13 14 15 1Q 11 12 13 14� 15
Brookings financial picture is very healthy and we are growing!
This Council will have to lead with a vision of what Brookings should be. Otherwise we
are doing Jeff's job — managing.
The City of Brookings is committed to providing a high quality of life for its citizens and
fostering diverse economic base through innovative thinking, strategic planning, and
proactive, fiscally responsible municipal management. ,
We will have our Council "Advance" on July 13th, and collaborate to find the vision the I'
Council will lead with. We shall then figure out the long-term strategy to accomplish the
mission and vision.
What is the vision the Council will lead with?
We are an inclusive, diverse, connected community that fuels the creative class,
embraces sustainability and pursues a complete lifestyle. We are committed to building
a bright future through dedication, generosity, and authenticity. Bring your dreams!
Guiding Principles
• Evolving economic growth and community improvement strategy
• Active civic engagement
• Distinctive community assets
What is the long term strategic plan to accomplish mission and vision?
Long-Term Strategic Planning
• Strategic Planning Council Advanced — July 13tn
o Completed and In-Process
0 10-year Community Reinvestment Plan (CRP)
o Re-visit Annually
o Comprehensive Master Plan
o Affordable Housing Task Force
• Needed
o Swiftel Center Strategic Plan
■ $5M set aside in 10 year CIP
o Strategic coordination between
■ Brookings County
■ Brookings School District
■ South Dakota State University
■ Brookings Economic Development Corp. (BEDC)
■ Brookings Health Services
■ Brookings Municipal Utilities
o Recreation Investment
• Evolving Economic Growth Strategy
o Work Force
o Entrepreneurial Eco-System
o Retail Growth
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• Campus and Community Relationship
o President Dunn — opportunity to take a new look
� Safe City
o What is needed to combat drug issue?
• Transparency
• Citizen Engagement
• High Performance City
My favorite quote as an elected leader is, "A community, like an individual, has work to
do." —Aristotle
A special thank you to the citizens of Brookings, Volunteer Board Members, Jeff Weldon
and staff, City Clerk and staff, and fellow Council Members."
Resolution 16-048. A motion was made by Council Member Niemeyer, seconded by
Council Member Corbett, that Resolution 16-048, a Resolution awarding the contract for
the purchase of two police vehicles from Einspahr Ford, be approved. The motion
carried by the following vote: Yes: 6 - Corbett, Niemeyer, Hansen, Reed, Bacon, and
Wendell; Absent: 1 — Kidwiler.
Resolution 16-048 - Resolution Awarding Bid for Police SUV
Whereas, the City of Brookings opened bids for Police Vehicles on Tuesday, May 24,
2016 at 1:30 pm at the Brookings City and County Government Center; and
Whereas, the City of Brookings has received the following bid for two Police Vehicles:
Einspahr Ford Brookings: $67,622 for finro marked Sport Utility Vehicles (SUV).
Now Therefore, Be It Resolved that the low bid of$67,622 for finro Police SUV's from
Einspahr Ford be accepted.
Ordinance 16-011. A public hearing was held on Ordinance 16-011, an Ordinance to
Rezone a portion of the S '/Z of the NE '/4 of Section 1-T109N-R50W from an Agricultural
A District to a Residence R-1 C District. A motion was made by Council Member
Hansen, seconded by Council Member Wendell, that Ordinance 16-011, be approved.
The motion carried by the following vote: Yes: 6 - Corbett, Niemeyer, Hansen, Reed,
Bacon, and Wendell; Absent: 1 — Kidwiler.
Ordinance 16-012. A public hearing was held on Ordinance 16-012, an Ordinance to
rezone Lot 1 of Lots 1 & 2 of Lot A of the Replat of Outlot E, Maynes Addition from a
Residence R-2 District to a Planned Development District (PDD). A motion was made
by Council Member Corbett, seconded by Council Member Hansen, that Ordinance
16-012 be approved. The motion carried by the following vote: Yes: 6 - Corbett,
Niemeyer, Hansen, Reed, Bacon, and Wendell; Absent: 1 — Kidwiler.
Initial Development Plan. A motion was made by Council Member Bacon, seconded
by Council Member Niemeyer, that the Initial Development Plan for Lot 1 of Lots 1 & 2
of Lot A of the Replat of Outlot E, Maynes Addition, be approved. The motion carried by
the following vote: Yes: 6 - Corbett, Niemeyer, Hansen, Reed, Bacon, and Wendell;
Absent: 1 — Kidwiler.
Temporarv LiQUOr Application. A public hearing was held on a temporary liquor
application for the Brookings Volunteer Fire Association Street Dance to be held in the
300 Block of Main Avenue on July 16, 2016. A motion was made by Council Member
Niemeyer, seconded by Council Member Corbett, that the temporary license be
approved. The motion carried by the following vote: Yes: 6 - Corbett, Niemeyer,
Hansen, Reed, Bacon, and Wendell; Absent: 1 — Kidwiler.
Resolution 16-045. A public hearing was held on Resolution 16-045, a Resolution
Determining the Necessity of Repairing or Installing Sidewalks in the City of Brookings
at the Expense of Abutting Property Owners, 2016-01 SWR Concrete Maintenance
Project. A motion was made by Council Member Wendell, seconded by Council
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Member Bacon, that Resolution 16-045 be approved. The motion carried by the
following vote: Yes: 6 - Corbett, Niemeyer, Hansen, Reed, Bacon, and Wendell; Absent:
1 — Kidwiler.
Resolution 16-045 - Resolution Determining the Necessity of Repairing or Installing
Sidewalks in the City of Brookings at the expense of abutting property owners;
2016-01 SWR Concrete Maintenance Project
Be It Resolved by the City Council of the City of Brookings, South Dakota, as follows:
. 1. It is hereby determined that sidewalk repairs or installation is necessary abutting
the parcels and lots of land in the City described in the Notice to Property
Owners attached to this Resolution and marked as 2016-01 SWR Concrete
Maintenance Project.
2. Such sidewalks shall be installed to the width and of the materials prescribed by
Chapter 74, "Streets, Sidewalks and other Public Places" and Article V.
"Sidewalks", and to the grade and in accordance with the Plans and
Specifications prepared in the office of the City Engineer. �
3. The method of apportionment of benefits is as follows: Such assessments,
unless paid within thirty (30) days after the date of mailing of a statement of
account by the City, shall be collected by the City in accordance with the
procedure for Plan One in Section 9-43-102, South Dakota Compiled Laws of
1967, as amended, with interest of 10% on the unpaid balance. Assessments
amounting to less than $300.00 shall be paid in one payment.
4. The City Clerk has caused a copy of the Resolution and a Notice to Property
Owners to be mailed to each property owner by certified mail.
Master Drainaqe Plan Prioritv List. A motion was made by Council Member Hansen,
seconded by Council Member Corbett, that the Master Drainage Plan Priority List, be
approved. The motion carried by the following vote: Yes: 6 - Corbett, Niemeyer,
Hansen, Reed, Bacon, and Wendell; Absent: 1 — Kidwiler.
Deputv Mavor Appointment. A motion was made by Council Member Hansen,
seconded by Council Member Niemeyer, that Council Member Keith Corbett to be
appointed as Deputy Mayor through June 1, 2017. The motion carried by the following
vote: Yes: 6 - Corbett, Niemeyer, Hansen, Reed, Bacon, and Wendell; Absent: 1 —
Kidwiler.
Resolution 16-053. A motion was made by Council Member Hansen, seconded by
Council Member Wendell, that Resolution 16-053, a Resolution authorizing an
Agreement with Bel Brands USA, Inc., be approved. The motion carried by the following
vote: Yes: 6 - Corbett, Niemeyer, Hansen, Reed, Bacon, and Wendell; Absent: 1 —
Kidwiler.
Resolution 16-053 - Resolution Authorizing an Agreement with Bel Brands USA, Inc.
Be It Resolved by the City Council of the City of Brookings, South Dakota as follows:
Whereas, the City of Brookings and Bel Brands have reached a compromise agreement
concerning the wastewater pretreatment facility the City constructed to treat industrial
wastewater from the Bel Brands cheese processing facility. While Bel Brands has been
able to operate at full capacity for the past year and a half, the wastewater pretreatment
facility has required additional equipment to pre-treat its industrial wastewater. In
particular, a large piece of equipment commonly referred to as an Oxidizer was deemed
necessary to properly treat the wastewater, and this equipment is now in operation and
has proven to be the solutian to address Bel Brands' current industrial wastewater
levels, as well as potential increases in wastewater volumes that may occur as a result
of increased cheese production; and
Whereas, the City of Brookings and Bel Brands have been in negotiations for a lengthy
period concerning the complex issue of a proper allocation of each party's costs
associated with the pretreatment facility upgrades; and
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Whereas, the Agreement with Bel Brands provides that the Oxidizer is a necessary
upgrade to the wastewater pretreatment facility, and the City will therefore reimburse
Bel for the cost of the Oxidizer. The cost of the Oxidizer will be $947,578.93, but will
provide the City with desirable levels of long-term pretreatment of the industrial
wastewater and will further strengthen Bel's ability to produce its cheese products for
many years to come. Bel Brands, in turn, agrees to assume ownership and
responsibility for both the wastewater pretreatment facility and the Oxidizer once final
construction punchlist items have been completed;
Now, Therefore, It Is Hereby Resolved by the City Council of the City of Brookings,
South Dakota, as follows:
A. The above-referenced Agreement and payment in the amount of
$947,578.93 constituting the cost of the upgrades of the Wastewater
Pre-treatment Facility are hereby approved; and
B. The Mayor, City Clerk, City Manager and City Attorney are authorized
to execute the required documents in accordance with this Resolution.
AGREEMENT
THIS AGREEMENT (this "AgreemenY'), is hereby made and entered into as of June 14,
2016, by and among BEL BRANDS USA, INC., a Wisconsin corporation (the
"Company'), the CITY OF BROOKINGS, SOUTH DAKOTA (the "Cit}�').
RECITALS:
WHEREAS, on January 31, 2012, the Company, the City, the State of South Dakota
acting through the Governor's Office of Economic Development ("GOED") and the
Brookings Economic Development Corporation ("BEDC') entered into a Site Location
and Development Agreement (the "Development Agreement") for the purpose of setting
forth the proposals and respective commitments of the Company, the City, the State of
South Dakota, certain other public authorities, and BEDC in a valid, binding and
enforceable agreement in connection with the development, construction and operation
of a cheese manufacturing facility (the "Facilit�') in Brookings, South Dakota; and
WHEREAS, the Company agreed to develop, construct and operate the Facility based
on certain incentives conditionally provided by the City and the State of South Dakota
for the purpose of inducing and assisting the Company to establish the Facility within
the State of South Dakota and the City; and
WHEREAS, the City agreed to design, construct and commission, at its cost, a
pretreatment waste water solution in accordance with article VIII of the Development
Agreement.
WHEREAS, ownership of the Wastewater Solution, upon acknowledgement of its
completion, was to be conveyed to the Company by the City with a one-year
(extendable) warranty (including a process warranty) at which time the Company would
assume responsibility for the operation and maintenance of the Wastewater Solution;
and
WHEREAS, as set forth in Section 8.3(b) of the Development Agreement, the City is to
provide the Company a grant of$1,500,000 (the "Grant") toward the Company's capital
expenditures in the Facility, payable once the City has received $3.6 million in TIF
Revenues and then only to the extent of available TIF Revenues collected by the City
during the life of the TIF District; and
WHEREAS, the City arranged for the design and construction of a wastewater pre-
treatment facility with the intention that it would satisfy the requirements of the
Wastewater Solution in accordance with Article VIII of the Development Agreement (the
"Base WWS"); and
WHEREAS, the parties agree that it was necessary to upgrade the Base WWS to
include an Oxidizer, as defined herein, in order to satisfactorily pre-treat the Facility's
wastewater on an ongoing basis; and
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WHEREAS, the parties desire to enter into this Agreement to agree to a mutually
agreeable plan to assure a Wastewater Solution that performs as specified in Article VIII
of the Development Agreement;
NOW, THEREFORE, upon and in consideration of the respective promises and
covenants contained herein and for other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto agree
as follows:
ARTICLE I
DEFINED TERMS
Section 1.1 Capitalized Terms. Capitalized terms utilized herein will have the
meanings ascribed thereto in the Development Agreement or below, unless the
meanings of such terms have been otherwise specified in a different context (such
meanings to be equally applicable to both the singular and plural forms of the terms
defined):
"Base INWS"means the wastewater treatment facility designed and built by the City to
provide pre-treatment of waste generated by the Facility.
"City"means not only the City of Brookings, South Dakota but also its personal
representatives, successors, assigns, agents, employees, officers, officials, directors,
shareholders, and insurers.
"Company"means not only Bel Brands USA, Inc. but also any related companies, any
parent companies, subsidiaries, divisions, affiliates, shareholders, partners, members,
owners, officers, directors, consultants, insurers, agents, employees, assigns and
successors in interest.
"Development Agreement"means the Site Location and Development Agreement dated
January 31, 2012 among the Company, the City, the State of South Dakota acting
through the Governor's Office of Economic Development, and Brookings Economic
Development Corporation.
"Effective Date"has the meaning set forth in Section 7.2 hereof.
"Facility' has the meaning set forth in the Recitals to this Agreement.
"Oxidizer"means an oxidation tank, together with all components and accessories, as I
more fully described in Exhibit A.
"Wastewater So/ution" has the meaning set forth in Section 8.1(a) of the Development
Agreement.
"WWS Requirements" has the meaning set forth in Section 8.1(a) of the Development
Agreement.
ARTICLE II
REPRESENTATIONS BY THE CITY
Section 2.1 Representations. The City represents to the Company as follows:
(a) All payments to vendors (including but not limited to contractors,
subcontractors, materialmen, sureties and government entities) owed in connection with
the Wastewater Solution have been made by the City or by its vendors and lien waivers
have been duly provided to the City by the same.
(b) There are no claims of any kind pending or threatened against the Base
WWS.
Section 2.2 Removal of Liens and Encumbrances. The City will promptly arrange to
remove any lien or other encumbrance that was or will be placed on the Wastewater
Solution by a third party at any time in connection with anything related to the
Wastewater Solution while it was under the City's ownership and will defend, indemnify
and hold the Company harmless from and against all claims and expenses arising out
of or relating to such liens or encumbrances.
ARTICLE III
PUNCHLIST; OTHER COSTS INCURRED
Section 3.1 Remaining Punchlist Items. Exhibit B includes all items remaining to be
completed for the construction of the Base 1NWS or otherwise necessary to place the
Base W1NS in a condition acceptable to the Company. The parties agree there are no
other Punchlist items and that no additional Punchlist items may be added to Exhibit B.
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Section 3.2 Punchlist. At its sole cost, the City will engage a contractor to complete
the Punchlist items it has agreed to complete by no later than July 17, 2016, subject to
the availability of Midwestern Mechanical to complete its punchlist work. The City also
agrees to use its best efforts to engage the services of Midwestern Mechanical as soon
as practicable. If it is determined that the concrete floor must be replaced, the City shall
be responsible for the cost of such repair and replacement and for providing temporary
tank, tank housing, and related piping during repairs. The City will be allowed
extensions for Force Majeure events as defined in the Development Agreement. The
City will enforce all applicable penalties for late completion, and will promptly remit all
such penalties collected to the Company. The City will assign all applicable product and
material warranties to the Company with the conveyance of the Base 1NWS.
Section 3.3 Pavments from Citv to the Companv. On or before July 14, 2016, the City
will pay the Company the sum of$947,578.93 to reimburse the Company for its costs
related to the need to upgrade the Base WWS and its initial design. The Company will
provide documentation of said costs on Exhibit "C".
ARTICLE IV
CONVEYANCE AND CONDITIONS OF ACCEPTANCE
Section 4.1 Convevance of Wastewater Solution. Upon execution of the Agreement,
the City agrees to deliver an executed instrument of conveyance substantially in the
form of Exhibit D (the "Transfer/nstrumenY'). The Company will accept the Transfer
Instrument promptly upon the satisfaction of all conditions of acceptance as set forth in
Section 4.2.
Section 4.2 Convevance and Acceptance of Base W1NS. The City will tender
ownership of the Base W1NS and the Company will accept conveyance thereof upon
satisfaction of the following conditions:
(1) The Cit and the Com an must each be in
Y p com liance with th '
Y p eir
respective obligations under the Agreement and Development Agreement;
(2) All Punchlist items have been completed and the Base W1NS has been
properly commissioned.
ARTICLE V
DESIGN, CONSTRUCTION AND FUNDING OF THE OXIDIZER
Section 5.1 Necessity of Oxidizer: Description. The Parties acknowledge that an
Oxidizer was a necessary upgrade to the Base 1NWS to achieve pre-treatment
performance of a Wastewater Solution required to be provided by the City under Article
VIII of the Development Agreement. The parties acknowledge that the Company
undertook the design and construction of the Oxidizer, and the selection of all vendors
in connection therewith.
Section 5.2 Grant. The City acknowledges that the Grant of$1.5 million set forth in
Section 8.3(c) of the Development Agreement may be used at the Company's discretion
to fund any capital expenditures at the facility and that no costs to be borne by the City
under the Development or this Agreement will be charged against the Grant
commitment.
Section 5.3 Responsibility for Oxidizer. Other than paying its share of the cost, the
City will have no responsibility for the design, construction or performance of the
Oxidizer. The City will remain responsible to provide a warranty on the Base W1NS to
be conveyed consistent with Section 8.1(c) of the Development Agreement (the
"Warranty"). However, this Warranty will extend for one year from June 14, 2016, and
does not apply to the product and material warranties referenced in Section 3.2.
ARTICLE VI
RELEASE AND NO ADVERSE ACTION
Section 6.1 Mutual Release.
The Company, the City and Banner Associates, Inc. ("Banner") mutually release each
other from any and all claims, losses, damages of any kind, costs, legal fees and
expenses, obligations, actions, causes of action, rights of subrogation, whether in tort,
contract or otherwise, and demands arising out of the design and construction of the
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Base 1NWS for Phases I and II that are known or should have been known as of June
14, 2016 (the "Claims"). No litigation relating to the Claims will be brought. Nothing in
this Mutual Release shall apply to any claims that are not known or could not have been
known as of June 14, 2016, nor shall this Mutual Release affect or impair the
Company's rights under the City's Warranty or relieve the City from completing the
punchlist items listed on Exhibit B. This section shall not impose any duty of inquiry or
inspection on the Company to discover any Claims. The City, the Company and Banner
agree that this Agreement is a compromise of doubtful and disputed claims and is not I
intended, nor shall it be construed, as an admission of liability or fault or breach of any
duty by any of the parties hereby released, by whom liability is expressly denied.
The Company, the City and Banner agree this release is intended to release all claims
between the City, the Company and Banner as set forth above and by executing this
Agreement, Banner hereby joins and agrees to the mutual release provisions contained
herein.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1 Authoritv. The Parties represent that they are authorized to enter into this
Agreement. On or prior to the date of this Agreement the City Council has taken, if
needed, all legally required actions to formally approve this Agreement, and to make it a
legal, valid, and binding obligation of the City, enforceable in accordance with its terms.
If the City Council's approval of this Agreement or anything contemplated hereunder is
hereafter referred to a public vote, the Company may terminate this Agreement upon
written notice to the City.
Section 7.2 Term of Aqreement. The term of this Agreement will commence on the
date it has been duly approved and executed by the City and the Company (the
"Effective Date") and will continue in effect until all parties have completed the
perFormance of all of their obligations under this Agreement.
Section 7.3 Specific Performance. The City and the Company each acknowledge and
agree that the City and the Company would be damaged irreparably in the event that
any of the provisions of this Agreement not performed in accordance with their specific
terms or otherwise are breached. Accordingly, the City and the Company, to the extent
permitted by law will be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically this Agreement in any action
instituted in any court having jurisdiction, in addition to any other remedy to which the
City or the Company may be entitled, at law or in equity. Prior to filing an action for
injunctive relief, a party must give written notice of any claimed breach which provides a
party with a thirty (30) day period to remedy the breach and agrees that if a party
institutes any action or proceeding to enforce any provision hereof the party against
whom injunctive relief is sought, hereby waives the claim or defense that the party
seeking injunctive relief has or will have an adequate remedy at law for money
damages.
Section 7.4 Governinq Law. This Agreement will be construed and enforced under the
laws of the State of South Dakota, without regard to conflict of law provisions.
Section 7.5 Severabilitv. In case any one or more of the provisions contained herein
should be invalid, illegal or unenforceable in any respect and for any reason
whatsoever, the validity, legality and enforceability of the remaining provisions hereof
shall not in any way be affected or impaired thereby, and in the event any such
provision is held to be invalid, illegal or unenforceable, those Parties affected by such
event shall exercise their best efforts to agree upon a provision in substitution for such
invalid, illegal or unenforceable provision that is as near in economic benefit as possible
to the provision found to be invalid, illegal or unenforceable.
Section 7.6 Notices. Any notice, request, demand, claim, or other communication
hereunder shall be in writing and shall be deemed duly given or made (a) when
personally delivered to the intended recipient (or an officer of the intended recipient), (b)
three (3) days after it is sent by certified first class mail, return receipt requested,
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postage prepaid, c two 2 da s after it is sent b reco nized overni
( ) ( ) Y Y g ght courier service,
or (d) when sent by facsimile service (with such facsimile to be confirmed promptly in
' writin sent b mail or overni ht courier as aforesai
9 Y g d , to the followin addresses and
) g
recipients:
CITY OF BROOKINGS 520 — 3�d Street, Ste. 230
P. O. Box 270
Brookings, SD 57006
Telephone: 605-692-6281
Email:
Attention: Jeff Weldon, City Manager
COMPANY Bel Brands USA, Inc.
30 S. Wacker Drive, 30th Floor
Chicago, IL 60606
Telephone: 312-489-5280
Email: fnallis@groupe-bel.com
Attention: Frederic Nallis, President and
CEO
With cc: Didier Aziza, CFO
Telephone: 312-462-1529
Email: daziza@belbrandsusa.com
or to such other address as the receiving Party shall have most recently forwarded to
the sending Party.
Section 7.7 Bindina Nature. It is the intention of the Parties that the commitments and
obligations set forth herein shall be binding upon the Parties hereto and their respective
successors and permitted assigns.
Section 7.8 Article and Section Titles and Headinqs. The article and section titles and
headings are for convenience only and do not define, modify or limit any of the terms
and provisions hereof.
Section 7.9 Incorporation of Exhibits. The exhibits identified in this Agreement and
annexed hereto are incorporated herein by reference and made a part hereof. If any
provision of this Agreement conflicts with or is inconsistent with any exhibit annexed
hereto, the terms, conditions and obligations set forth in this Agreement shall control.
Section 7.10 Further Assurances. The parties each agree to do all things and take all
actions required after the date hereof to promptly address all matters contemplated
herein, including the obtaining, execution and delivery of all necessary or desirable
signatures, agreements, filings, consents, authorizations, approvals, licenses or deeds.
Section 7.11 No Third-Partv Beneficiaries. Other than as set forth in this Agreement,
this Agreement will not confer any rights or remedies upon any pe�son other than the
parties and their respective successors and permitted assigns.
Section 7.12 Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and duly signed by an
authorized representative of each of the Parties. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether intentional or
not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising by
virtue of any prior or subsequent such occurrence.
Section 7.13 Construction. This Agreement has been negotiated by the parties and
their respective legal counsel, and legal or equitable principles that might require the
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construction of this Agreement or any provision of this Agreement against the Party
drafting this Agreement will not apply in any construction or interpretation of this
Agreement.
Section 7.14 Jurisdiction. Any lawsuit arising out of related to this Agreement or the
Development Agreement must be brought in a court of competent jurisdiction in the
State of South Dakota. Each party hereto hereby irrevocably consents to the
jurisdiction of such courts and waives any objection to such jurisdiction based on the
doctrine of forum non-conveniens.
Section 7.15 Force Majeure. In the event of any Party hereto being rendered unable,
wholly or in part, by reason of Force Majeure to carry out its obligations hereunder
(other than the obligation to make payment of amounts due hereunder), or to meet the
requirements to earn a payment or other commitment of another Party hereto, the
obligations of the disabled party suffering such Force Majeure event shall be suspended
during the continuance of any inability so caused, but for no longer period and/or the
deadline to earn any such payments or other benefits shall be tolled for the period of
such Force Majeure event and the deadline shall be extended for the period of such
Force Majeure event; rovided, however, that such Party suffering the Force Majeure
event shall (a) deliver prompt notice, to the Party to whom the obligations are due, of
the occurrence of such a Force Majeure event (such notice to describe the
circumstances creating the event and the steps that such Party proposes to take to
eliminate the event or the effects thereof�, (b) use its best efforts to eliminate such event
or the effects thereof and shall deliver periodic status reports regarding such efforts to
the Party to whom the obligations are due, (c) promptly deliver notice to the Party to
whom the obligations are due when such event has been eliminated or has ceased to
prevent the performance of the suffering Party's obligations and (d) proceed to fulfill or
perform such obligations as soon as reasonably practical after the event has been
eliminated or has ceased to prevent the performance of the suffering Party's obligations.
Section 7.16 Survival of Representations and Warranties. The covenants,
representations and warranties made by each of the Parties hereto and contained
herein shall survive the perFormance of any obligations to which such covenants,
representations and warranties relate.
Section 7.17 Remaining Terms Unaffected. Except as specifically modified herein, the
terms of the Development Agreement remain in effect.
Section 7.18 Time is of the Essence. Time is of the essence of this Agreement.
Section 7.19 Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than one
such counterpart.
Section 7.20 Entire Aqreement. This Agreement constitutes the entire agreement
among the Parties hereto and supersedes any prior understandings, agreements or
representations by or among the Parties hereto, whether written or oral to the extent
they relate to the subject matter herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above mentioned.
ATTEST: CITY OF BROOKINGS, SOUTH DAKOTA
By:
Shari Thornes, City Clerk Name: Tim Reed
Title: Mayor
BEL BRANDS USA, INC.
By:
Name:
Title:
440
BANNER ASSOCIATES, INC.
By:
Name:
Title:
LIST OF EXHIBITS
EXHIBIT A. DESCRIPTION OF OXIDIZER
EXHIBIT B. PUNCHLIST
EXHIBIT C. COSTS NECESSITATED BY UPGRADE
EXHIBIT D. FORM OF TRANSFER INSTRUMENT
Exhibit "C"
EXHIBIT E.
� Adiourn. A motion was made by Council Member Hansen, seconded by Council
, Member Corbett, to adjourn the meeting at 7:25 p.m. The motion carried by a
unanimous vote.
CITY OF BROOKINGS
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a - ' �,;4G� ;� Tim Reed, Mayor
ATTE:�T;� '' :';,��
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Shari Thornes, City Clerk