HomeMy WebLinkAbout2017_11_28 CC PKTCity Council
City of Brookings
Meeting Agenda
Brookings City Council
Brookings City & County
Government Center
520 3rd St., Suite 230
Brookings, SD 57006
Phone: (605) 692-6281
Fax: (605) 692-6907
"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!"
Council Chambers5:30 PMTuesday, November 28, 2017
The City of Brookings is committed to providing a high quality of life for its citizens and fostering a diverse
economic base through innovative thinking, strategic planning, and proactive, fiscally responsible municipal
management.
5:30 PM EXECUTIVE SESSION
Location: Executive Session Room, Room 312
ID 2017-0664 Executive Session, pursuant to SDCL 1-25-2, for purposes of
discussing marketing or pricing strategies by a board or commission of
a business owned by the state or any of its political subdivisions, when
public discussion may be harmful to the competitive position of the
business.
Action: Motion to Enter into Executive Session, Voice Vote
Action: Motion to Exit Executive Session, Voice Vote
6:00 PM REGULAR MEETING
Location: Chambers, Room 310
1. Call to Order / Pledge of Allegiance.
2. Record of Council Attendance.
3. Consent Agenda:
Action: Motion to Approve, Request Public Comment, Roll Call
Matters appearing on the Consent Agenda are expected to be non-controversial and will
be acted upon by the Council at one time, without discussion, unless a member of the
Council or City Manager requests an opportunity to address any given item. Items
Page 1 City of Brookings
November 28, 2017City Council Meeting Agenda
removed from the Consent Agenda will be discussed at the beginning of the formal
items. Approval by the Council of the Consent Agenda items means that the
recommendation of the City Manager is approved along with the terms and conditions
described in the agenda supporting documentation.
3.A. Action to approve the agenda.
3.B.ID 2017-0668 Action to approve the October 24, 2017 City Council Minutes.
10/24/2017 MinutesAttachments:
3.C.ID 2017-0595 Action on annual Liquor and Wine Alcohol License Renewals for 2018.
3.D.RES 17-084 Action on Resolution 17-084, a Resolution authorizing the City Manager to
sign a SD Farm Wine Operating Agreement 5-year renewal for the
Blizzard, LLC, Chris Canavati & Mitri Canavati, owners, 924 32nd Ave.,
legal description: Blocks 6 and 7, Wiese Addition.
Resolution
Operating Agreement
Attachments:
3.E.RES 17-106 Action on Resolution 17-106, a Resolution declaring furniture and
computers as surplus property (Public Library).
ResolutionAttachments:
3.F.RES 17-099 Action on Resolution 17-099, a Resolution declaring a 973 Track Machine
as Surplus Property (Landfill/Solid Waste Dept.).
ResolutionAttachments:
3.G.RES 17-098 Action on Resolution 17-098, a Resolution awarding the contract for the
purchase of one new Track Machine for the Landfill through the National
Joint Powers Alliance.
ResolutionAttachments:
3.H.RES 17-097 Action on Resolution 17-097, a Resolution awarding the contract for the
purchase of a new Vacuum Truck for Solid Waste Collection through the
National Joint Powers Alliance.
ResolutionAttachments:
3.I.RES 17-109 Action on Resolution 17-109, a Resolution amending the Building Permit
Fee for Certain Building Projects.
Resolution - clean copy
Resolution 87-05 - marked copy
Attachments:
3.J.RES 17-110 Action on Resolution 17-110, a Resolution Fixing Time and Place for
Hearing Upon the Assessment Roll for the 2017 Assessment of the
2014-02STA Main Avenue South and 26th Street South Reassessment.
ResolutionAttachments:
Page 2 City of Brookings
November 28, 2017City Council Meeting Agenda
3.K.RES 17-108 Action on Resolution 17-108, a Resolution Authorizing Change Order No. 1
(Final) for 2017-01SWR Concrete Maintenance Project; Clark Drew
Construction, Inc.
ResolutionAttachments:
3.L.RES 17-107 Action on Resolution 17-107, a Resolution awarding the contract for the
purchase of two (2) New 2018 Pick-ups, a Chevrolet Silverado ¾ Ton 4x4
Extended Cab Short Box and a Chevrolet Silverado 4x4 Crew Cab for the
Parks, Recreation & Forestry Dept. (Parks) through the SD State Bid
Contract.
ResolutionAttachments:
3.M.RES 17-111 Action on Resolution 17-111, a Resolution awarding the contract for the
purchase of one New John Deere 624K Loader for the City of Brookings
Street Department through Admin Minnesota.
ResolutionAttachments:
3.N.ID 2017-0698 Action on a Preliminary Plat for Block 3 and Lots 1-10, Block 4, D and D
Addition, a portion of 7th Avenue South, and a portion of 15th Street South.
Planning Commission Minutes 11-07-2017
Hearing Notice
Preliminary Plat
Area Map
Attachments:
4. Items removed from Consent Agenda.
Action: Motion to Approve, Request Public Comment, Roll Call
5. Open Forum/Presentations/Reports:
5.A. Open Forum.
At this time, any member of the public may request time on the agenda for an item not
listed. Items are typically scheduled for the end of the meeting; however, very brief
announcements or invitations will be allowed at this time.
5.B. SDSU Student Association Report.
5.C.ID 2017-0671 Brookings Municipal Utilities Financial Report.
PresentationAttachments:
5.D.ID 2017-0701 Informational presentation pertaining to Transitional Housing.
6. Contracts/Change Orders:
6.A.RES 17-102 Action on Resolution 17-102, a Resolution authorizing Change Orders No.
Page 3 City of Brookings
November 28, 2017City Council Meeting Agenda
1 and No. 2 (Final) for the Brookings Arts Council Renovation (Carnegie
Building) Project; Visions Construction Group of Tea, SD.
Resolution
Change Order Detail
Attachments:
Motion: Action to Approve, Request Public Comment, Roll Call
6.B.RES 17-101 Action on Resolution 17-101, a Resolution awarding a contract for the
construction of a new Sexauer Park Restroom Facility.
ResolutionAttachments:
Motion: Action to Approve, Request Public Comment, Roll Call
6.C.RES 17-105 Action on Resolution 17-105, a Resolution Authorizing Change Order No. 1
(Final) for 2017-08STI Street Maintenance & Overlay Project; Bowes
Construction, Inc.
ResolutionAttachments:
Motion: Action to Approve, Request Public Comment, Roll Call
7. Ordinance First Readings:
No vote is taken on the first reading of an Ordinance. The title of the Ordinance is read
and the date for the public hearing is announced.
7.A.ORD 17-025 Introduction and First Reading on Ordinance 17-025, an Ordinance
revising Division 3 of Chapter 82 of the Code of Ordinances of the City of
Brookings and Pertaining to Speed Zones in the City of Brookings, South
Dakota. Second Reading: December 12, 2017.
Ordinance - clean copy
Ordinance - marked copy
TSC Minutes 9/10/2015
Attachments:
7.B.ORD 17-026 Introduction and First Reading on Ordinance 17-026, an Ordinance
amending Section 94-398 of the Zoning Ordinance, pertaining to fences,
walls, and hedges. Public Hearing: December 12, 2017.
Ordinance - clean copy
Ordinance - marked copy
Planning Commission Minutes 9/5/2017, 10/3/2017, 11/7/2017
Hearing Notice
Comparison Chart
Attachments:
7.C.ORD 17-027 Introduction and First Reading on Ordinance 17-027, an Ordinance
amending Section 42-102 of the Code of Ordinances of the City of
Brookings, SD and pertaining to Transfers to the Brookings Health System
Investment Authority. Second Reading: December 12, 2017.
OrdinanceAttachments:
Page 4 City of Brookings
November 28, 2017City Council Meeting Agenda
7.D.ORD 17-028 Introduction and First Reading on Ordinance 17-028, an Ordinance
amending Chapter 2, Article V, Division 4 pertaining to appointments to
the Swiftel Center Advisory Board. Second Reading: December 12, 2017.
Ordinance - clean copy
Ordinance - marked copy
Attachments:
7.E.ORD 17-029 Introduction and First Reading on Ordinance 17-029, an Ordinance
amending Chapter 22 of the Code of Ordinances of the City of Brookings
and providing Procedures for the Licensing of Residential Contractors in
the City of Brookings, SD. Second Reading: December 12, 2017.
Ordinance
Chart
Attachments:
7.F.ORD 17-030 Introduction and First Reading on Ordinance 17-030, an Ordinance
authorizing Supplemental Appropriation #3 to the 2017 Budget. Second
Reading: December 12, 2017.
OrdinanceAttachments:
8. Public Hearings and Second Readings:
8.A.ORD 17-024 Public Hearing and Action on Ordinance 17-024, an Ordinance rezoning
Lot 1A of Lot 1, Block 1, Except the North 41 feet thereof, Mayland’s First
Addition, also known as 520 22nd Avenue, from a Business B-4 Highway
District to a Business B-2 District.
Ordinance
Notice
10-03-2017 Planning Commission Minutes
Zoning Area Map
Rezoning Map
Attachments:
Action: Open & Close Public Hearing, Motion to Approve, Roll Call
Legislative History
10/24/17 City Council read into the record
8.B.ID 2017-0716 Public Hearing with respect to South Dakota State University Projects and
the Issuance of Bonds under South Dakota Codified Laws Chapter 9-54,
as Amended.
Legal NoticeAttachments:
Action: Open & Close Public Hearing
9. Other Business:
9.A.RES 17-104 Action on Resolution 17-104, a Resolution of the City of Brookings, South
Dakota, authorizing the Issuance of its Economic Development Revenue
Page 5 City of Brookings
November 28, 2017City Council Meeting Agenda
Bonds (South Dakota State University Foundation Project), Series 2017, in
an Original Aggregate Principal Amount not to exceed $9,700,000, for the
purpose of providing funds to be loaned to South Dakota State University
Foundation, a South Dakota Nonprofit Corporation, for the purpose of
Financing Improvements to the Campus of South Dakota State University;
approving the form of and authorizing the execution and delivery of a Loan
and Security Agreement and a Tax Regulatory Agreement; approving the
form of and authorizing the execution and delivery of the Bonds and certain
related documents; making certain Findings and Determinations with
respect to the Bonds; and providing for the Rights and Remedies of the
Holders of the Bonds.
Resolution
Loan & Security Agreement
SDSU - Bond
SDSU - Foundation Promissory Note
Legal Notice
Attachments:
Action: Motion to Approve, Roll Call
10. City Council member introduction of topics for future discussion.
Any Council Member may request discussion of any issue at a future meeting only.
Items cannot be added for action at this meeting. A motion and second is required
stating the issue, requested outcome, and time. A majority vote is required.
11. Adjourn.
Brookings City Council: Keith Corbett, Mayor, Mary Kidwiler, Deputy Mayor & Council Member
Council Members Patty Bacon, Dan Hansen, Ope Niemeyer, Holly Tilton Byrne, and Nick Wendell
Council Staff:
Jeffrey W. Weldon, City Manager Steven Britzman, City Attorney Shari Thornes, City Clerk
View the City Council Meeting Live on the City Government Access Channel 9.
Rebroadcast Schedule: Wednesday 1:00pm/Thursday 7:00pm/Friday 9:00pm/Saturday 1:00pm
The complete City Council agenda packet is available on the city website: www.cityofbrookings.org
Assisted Listening Systems (ALS) are available upon request. Please contact Shari Thornes, Brookings City
Clerk, at (605)692-6281 or sthornes@cityofbrookings.org. If you require additional assistance, alternative formats,
and/or accessible locations consistent with the Americans with Disabilities Act, please contact Shari Thornes, City
ADA Coordinator, at (605)692-6281 at least three working days prior to the meeting.
Page 6 City of Brookings
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:ID 2017-0664,Version:1
Executive Session, pursuant to SDCL 1-25-2, for purposes of discussing marketing or pricing
strategies by a board or commission of a business owned by the state or any of its political
subdivisions, when public discussion may be harmful to the competitive position of the business.
1-25-2. Executive or closed meetings--Purposes--Authorization--Misdemeanor.
Executive or closed meetings may be held for the sole purposes of:
1) Discussing the qualifications, competence, performance, character or fitness of any
public officer or employee or prospective public officer or employee. The term “employee”
does not include any independent contractor;
2) Discussing the expulsion, suspension, discipline, assignment of or the
educational program of a student;
3) Consulting with legal counsel or reviewing communications from legal counsel about
proposed or pending litigation or contractual matters;
4) Preparing for contract negotiations or negotiating with employees or employee
representatives;
5) Discussing marketing or pricing strategies by a board or commission of a business
owned by the state or any of its political subdivisions, when public discussion may be
harmful to the competitive position of the business.
However, any official action concerning such matters shall be made at an open official meeting. An
executive or closed meeting shall be held only upon a majority vote of the members of such body
present and voting, and discussion during the closed meeting is restricted to the purpose specified in
the closure motion. Nothing in § 1-25-1 or this section may be construed to prevent an executive or
closed meeting if the federal or state Constitution or the federal or state statutes require or permit it.
A violation of this section is a Class 2 misdemeanor.
Source: SL 1965, ch 269; SL 1980, ch 24, § 10; SL 1987, ch 22, § 1.
City of Brookings Printed on 11/21/2017Page 1 of 1
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City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:ID 2017-0668,Version:1
Action to approve the October 24, 2017 City Council Minutes.
Attachments:
10/24/2017 Minutes
City of Brookings Printed on 11/17/2017Page 1 of 1
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Brookings City Council
October 24, 2017 (unapproved)
The Brookings City Council held a meeting on Tuesday, October 24, 2017 at 5:00 p.m.,
at City Hall with the following City Council members present: Mayor Keith Corbett,
Council Members Mary Kidwiler, Dan Hansen, Holly Tilton Byrne, Nick Wendell, Patty
Bacon, and Ope Niemeyer. City Manager Jeff Weldon, City Attorney Steve Britzman,
and Deputy City Clerk Bonnie Foster were also present.
5:00 PM Study Session.
Council Member Bacon, Brookings Affordable Housing Task Force Chair, presented the
Affordable Housing Task Report to the City Council and public.
(Council Member Hansen arrived at 5:35 p.m.)
6:00 PM Regular Meeting
Consent Agenda. A motion was made by Council Member Hansen, seconded by
Council Member Kidwiler, to approve the Consent Agenda. The motion carried by the
following vote: Yes: 7 - Corbett, Niemeyer, Hansen, Kidwiler, Bacon, Wendell, and
Tilton Byrne.
A. Action to approve the agenda.
B. Action to approve the October 10, 2017 City Council Minutes.
C. Action on Resolution 17-083, a Resolution authorizing the City Manager to
sign a Liquor Operating Agreement 5-year renewal for Park Hospitality, Inc.,
Lance Park, owner, 2500 6th Street, legal description: Lot X-1 and all of Lot 1,
excluding west 20' thereof; Lot F excluding north 60', and all Lot G of Lot 2, all in
Block 1, Holibrook Addition.
Resolution 17-083 - Park Hospitality, Inc. Liquor Operating Agreement Renewal
Be It Resolved by the City of Brookings, South Dakota, that the City Council hereby
approves a Lease Renewal Agreement for the Liquor Operating Management
Agreement between the City of Brookings and Park Hospitality, Inc., Lance Park, owner,
for the purpose of a liquor manager to operate the On-Sale Establishment or business
for and on behalf of the City of Brookings at 2500 6
th Street.
Be It Further Resolved that the City Manager be authorized to execute the Agreement
on behalf of the City, which shall be for the remaining 5-years of the 10-year agreement.
D. Action on Resolution 17-093, a Resolution declaring Parks & Forestry
equipment as surplus property.
Resolution 17-093 - Declaring Parks & Forestry Equipment as Surplus Property
Whereas, the City of Brookings is the owner of the following described equipment
formerly used at the City of Brookings Parks, Recreation & Forestry Department: One
(1) 1992 Ford F700 Truck with Hoist, VIN # 1FDPF70J2NVA18486, One (1) 1973
Chevrolet 1 Ton 4x4 Flat Bed, VIN # CKY233J172446, One (1) 1988 GMC 3 Ton Truck
with Hoist, VIN # 1GDL7D1B7JV505002, One (1) 1967 Homemade Low Bed Trailer,
Serial # 247553, and One (1) Early 1990’s Ditch Witch Walk Behind Trencher.
Whereas, in the best financial interest, it is the desire of the City of Brookings to sell
same as surplus property; and
Whereas, the City Manager hereby authorized to sell said surplus property.
Now, Therefore, Be It Resolved by the governing body of the City of Brookings, SD, that
this property be declared surplus property according to SDCL Chapter 6-13.
3.E. Action on Resolution 17-095, a Resolution authorizing Change Order No. 1
(Final) For Brookings Runway 17/35 Improvements, AIP #3-46-0005-029-2017;
Midland Contracting, Inc.
Resolution 17-095 - A Resolution Authorizing Change Order No. 1 (CCO#1 Final) for
Brookings Runway 17/35 Improvements, AIP #3-46-0005-029-2017; Midland
Contracting, Inc.
Be It Resolved by the City Council that the following change order be allowed for
Brookings Runway 17/35 Improvements, AIP #3-46-0005-029-2017, Construction
Change Order Number 1 (Final): Adjust bid quantities for rip rap work, raising taxiway
lights, and hauling excess millings for a total decrease of $40,158.65 and extend the
contract final completion date by 15 working days for the additional work to close out the
project.
3.F. Action on Resolution 17-094, a Resolution authorizing the placement of 4-
Way Stop Signs at the Intersection of 22nd Avenue South and 32nd Street South.
Resolution 17-094 - A Resolution authorizing the placement of 4-Way Stop Signs
at the Intersection of 22
nd Avenue South and 32nd Street South
Whereas, Section 82-373 of the Revised Ordinance of the City of Brookings, provides
for approval by the City Council for placement of stop signs in locations other than along
through streets; and
Whereas, representatives from the City of Brookings and from Brookings County have
agreed that placement of 4-way stop signs at the intersection of 22nd Avenue South and
32nd Street South would benefit the general welfare and safety of the citizens of
Brookings.
Now, Therefore, Be It Resolved that the City Council concurs in the recommendation of
the Traffic Safety Committee and approves the placement of 4-way stop signs at the
intersection of 22nd Avenue South and 32nd Street South.
3.G. Action on Resolution 17-100, a Resolution of the City of Brookings, South
Dakota, calling for a Public Hearing in connection with a Proposal for the
issuance of its Economic Development Revenue Bonds (South Dakota State
University Foundation Project), Series 2017, in an original Aggregate Principal
Amount not to exceed $9,700,000 for the purpose of providing Funds to be loaned
to South Dakota State University Foundation, a South Dakota Nonprofit
Corporation, for the purpose of Financing Improvements to the Campus of South
Dakota State University.
Resolution 17-100 - A Resolution of the City of Brookings, South Dakota, calling for a
Public Hearing in connection with a Proposal for the issuance of its Economic
Development Revenue Bonds (South Dakota State University Foundation Project),
Series 2017, in an original Aggregate Principal Amount not to exceed $9,700,000 for the
purpose of providing Funds to be loaned to South Dakota State University Foundation,
a South Dakota Nonprofit Corporation, for the purpose of Financing Improvements to
the Campus of South Dakota State University
Whereas, the City of Brookings, South Dakota (the “City”) is authorized by South
Dakota Codified Laws, Chapter 9-54, as amended (the “Act”), to promote the general
economic welfare by the provision of necessary economic development facilities;
Whereas, at the request of South Dakota State University Foundation, a South Dakota
nonprofit corporation (the “Corporation”), the City is willing to consider the proposed
issuance of economic development revenue bonds in a principal amount not to exceed
$9,700,000 (the “Bonds”), pursuant to the Act in order to finance projects on behalf of
South Dakota State University Foundation, a South Dakota nonprofit corporation (the
“Corporation”), which supports the educational mission of South Dakota State University
(the “University”) in Brookings, South Dakota;
Whereas, if the Bonds are issued, the Corporation proposes to apply the proceeds of
the Bonds to finance a project (the “Series 2017 Project”) which would consist generally
of the following:
I.A major expansion and remodeling of the South Dakota State University
Performing Arts Center, including construction, equipping and furnishing of such
facility; and
II.The construction, equipping and furnishing of a practice gym facility adjacent to
the Stanley Marshall HPER academic and athletic facility;
Whereas, the 2017 Project facilities will be owned, managed, and operated by South
Dakota State University;
Whereas, the 2017 Project will be located on the campus of South Dakota State
University (which is the owner of the land), the street address of which is Administration
Ln, Brookings, South Dakota, and on certain adjacent land, all of which is generally
described as bounded on the North by SD Bypass 14, on the East by 22nd Avenue, on
the South by 8th Street, and on the West by Medary Avenue, all within the City of
Brookings, South Dakota;
Whereas, the Internal Revenue code of 1986, as amended, requires that, as a condition
to the Bonds being issued as tax exempt bonds, a public hearing is required with
advance public notice provided to the public in substantially the form of the attached
Exhibit A;
Now, Therefore, Be It Ordained by the City of Brookings South Dakota, that:
A public hearing shall be set concerning the issuance of the Bonds and the Series 2017
Project, such hearing to occur on November 28, 2017 at 6:00 p.m. at the Brookings City
& County Government Center, Room 310 (Chambers), Brookings, South Dakota. The
City Clerk is hereby instructed to publish a notice of public hearing in substantially the
form of the attached Exhibit A in The Brookings Register, a newspaper of general
circulation in the City of Brookings at least 14 days prior to the date of the public
hearing.
Resolution 17-096. A motion was made by Council Member Niemeyer, seconded by
Council Member Hansen, that Resolution 17-096, a Resolution awarding Bids on 2017-
11STI, Airport Taxilane Project, be approved. The motion carried by the following vote:
Yes: 7 - Corbett, Niemeyer, Hansen, Kidwiler, Bacon, Wendell, and Tilton Byrne.
Resolution 17-096 - Resolution Awarding Bids on
Project 2017-11STI Airport Taxilane Project
Whereas, the City of Brookings opened bids for the 2017-11STI Airport Taxilane Project
on Tuesday, October 17, 2017 at 1:30 pm at the Brookings City & County Government
Center; and
Whereas, the City of Brookings has received the following bid for the 2017-11STI
Airport Taxilane Project: Bowes Construction, Inc.: Base Bid - $33,585.38, Alternate 1 -
$22,774.00, Total Base Bid + Alternate - $56,359.38.
Now Therefore, Be It Resolved that the low Base Bid of $33,585.38 and Alternate 1 of
$22,774.00 for the total amount of $56,359.38 from Bowes Construction, Inc. be
accepted.
FIRST READING - Ordinance 17-024. Introduction and first reading was held on
Ordinance 17-024, an Ordinance rezoning Lot 1A of Lot 1, Block 1, except the North 41
feet thereof, Mayland’s First Addition, also known as 520 22nd Avenue, from a Business
B-4 Highway District to a Business B-2 District. Public Hearing: November 28, 2017.
Resolution 17-091. A public hearing was held on Resolution 17-091, a Resolution
approving a Special Assessment for uncollected Weed Removal fees. A motion was
made by Council Member Hansen, seconded by Council Member Kidwiler, that
Resolution 17-091 be approved. The motion carried by the following vote: Yes: 7 -
Corbett, Niemeyer, Hansen, Kidwiler, Bacon, Wendell, and Tilton Byrne.
Resolution 17-091 - Levy Assessment for Weed Removal
Whereas, the City Manager has submitted to the City Council Special Assessments
against the owner and legal description listed below as hereinafter set out for Weed
Removal fees.
Be It Resolved by the City Council of the City of Brookings, South Dakota, these fees be
assessed, in accordance with South Dakota Codified Law 9-32-12 as follows: Brad
Winker, 909 1st Ave., weed eating fee in the amount of $645.00.
Introduction of Topics for Future Discussion. A motion was made by Council
Member Niemeyer, seconded by Council Member Tilton Byrne, to task staff and the
Affordable Housing Task Force, to figure out how to implement funding for programs
suggested in their Report. The motion carried by the following vote: Yes: 7 - Corbett,
Niemeyer, Hansen, Kidwiler, Bacon, Wendell, and Tilton Byrne.
Adjourn. A motion was made by Council Member Hansen, seconded by Council
Member Niemeyer, to adjourn the meeting at 6:15 p.m. The motion carried by a
unanimous vote.
CITY OF BROOKINGS
Keith W. Corbett, Mayor
ATTEST:
Shari Thornes, City Clerk
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:ID 2017-0595,Version:1
Action on annual Liquor and Wine Alcohol License Renewals for 2018.
Summary:
Enclosed for City Council review and action are the Annual Liquor and Wine License renewals for
2018. All required documentation has been submitted.
Liquor (Off-Sale):
1.Brookings Municipal Liquor Store, 780 22nd Ave. So.
Liquor (On-Sale):
1.The Lodge, 2515 E. 6th St. (CL)
2.Park Hospitality, Inc., 2500 6th St. (CL)
3.Applebee’s / Porter Apple Co. B Inc., 3001 LeFevre Dr.
4.Buffalo Wild Wings Bar & Grill / W&P of Brookings, LLC, 1801 6 th St.
5.CRAFT / Midwest Fresh Concepts, LLC, 610 Medary Ave.
6.Cubby’s Sports Bar & Grill / GDT Inc., 307 Main Ave.
7.Danny’s / David Olson Inc., 703 Main Ave. So.
8.Elks Brookings Lodge #1490, 516 4th St.
9.Jim’s Tap / Urquhart Ent., Inc., 309 Main Ave.
10.9 Bar Nightclub / Nine Inc., 303 Main Ave.
11.Old Market Eatery / The Lee Group, 424 5th St.
12.Pheasant Restaurant & Lounge / RGO, Inc., 726 Main Ave. So.
13.Pints & Quarts / B&L Sullivan, Inc., 313 Main Ave.
14.Prairie Lanes Inc., 722 Western Ave.
15.The Ram / Ram & O’Hare’s Ent., LLC, 327 Main Ave.
16.Ray’s Corner / Fergen Enterprises Inc., 401 Main Ave.
17.Skinner’s Pub Inc., 300 Main Ave.
18.Sully’s Irish Pub/B&L Sullivan Inc., 421 Main Ave.
19.VFW GEO Dokken Post 2118, 520 Main Ave.
20.The Wild Hare / Wonder, Inc., 303 3rd St.
Restaurant (On-Sale):
1.Whiskey Creek Wood Fire Grill / Brookings Steak Co. LLC, 621 32nd Ave.
Wine (On-Off Sale):
1.Brookings Municipal Liquor Store, 780 22nd Ave. So.
2.Cenex Zip Trip #63 / CHS, Inc., 1005 6th St.
3.Cenex Zip Trip #64 / CHS, Inc., 3045 LeFevre Dr.
4.Children’s Museum of South Dakota, 521 4th St.
5.The Depot / ERL, LLC, 919 20th St. So.
6.Deuces Casino, Commonwealth Gaming & Holdings Co., 223 6th St.
7.Guadalajara Mexican Restaurant, 1715 6th St., Suite F
8.Hy-Vee Food Store / Hy-Vee, Inc., 700 22nd Ave. So.
9.KRAVE, Inc., 1040 22nd Ave. So.
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File #:ID 2017-0595,Version:1
10.Mama Mia / Mad Jacks Inc., 1300 Main Ave. So.
11.McCrory Gardens Visitors Center, 6th St. & 22nd Ave.
12.New Sake, Inc., 724 22nd Ave. So.
13.Old Sanctuary / Old Sanctuary Assoc., LLC, 928 4th St.
14.Pheasant Restaurant & Lounge / RGO, Inc., 726 Main Ave. So.
15.Schoon’s Pump N’ Pak So. / Schoon Properties, Inc., 1205 Main Ave. So.
16.Skinner’s Pub Inc., 300 Main Ave.
17.Swiftel Center, 824 32nd Ave.
18.Wal-Mart Supercenter #1538 / Wal-Mart Stores, Inc., 2233 6 th St.
19.Wooden Legs Brewing Co., 309 5th St., Suite 100
Recommendation:
Staff recommends approval.
City of Brookings Printed on 11/21/2017Page 2 of 2
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City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:RES 17-084,Version:1
Action on Resolution 17-084, a Resolution authorizing the City Manager to sign a SD Farm Wine
Operating Agreement 5-year renewal for the Blizzard, LLC, Chris Canavati & Mitri Canavati, owners,
924 32nd Ave., legal description: Blocks 6 and 7, Wiese Addition.
Summary:
The City of Brookings enters into a SD Farm Wine Operating Agreements for 10-year increments.
The Operating Agreement for The Blizzard, LLC, located at 924 32nd Ave., is at the 5-year renewal
point. This Resolution would allow the City Manager to enter into the remaining 5-years of the 10-
year agreement.
Recommendation:
Staff recommends approval.
Attachments:
Resolution
Operating Agreement
City of Brookings Printed on 11/17/2017Page 1 of 1
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Resolution 17-084
The Blizzard, LLC
SD Farm Wine Operating Agreement Renewal
Be It Resolved by the City of Brookings, South Dakota, that the City Council hereby
approves a Lease Renewal Agreement for the SD Farm Wine Operating Management
Agreement between the City of Brookings and The Blizzard, LLC, Chris Canavati & Mitri
Canavati, owners, for the purpose of a liquor manager to operate the On-Sale
Establishment or business for and on behalf of the City of Brookings at 924 32nd Ave.
Be It Further Resolved that the City Manager be authorized to execute the Agreement
on behalf of the City, which shall be for the remaining 5-years of the 10-year agreement.
Passed and approved this 28th day of November, 2017.
CITY OF BROOKINGS
Keith W. Corbett, Mayor
ATTEST:
Shari Thornes, City Clerk
SD FARM WINE OPERATING AGREEMENT
The Blizzard, LLC
THIS AGREEMENT made and entered into by and between the CITY OF
BROOKINGS, a municipal corporation of the State of South Dakota, hereinafter referred
to as the “City” and the Blizzard, LLC, Chris Canavati & Mitri Canavati, owners,
hereinafter referred to as “Manager.”
WITNESSETH;
WHEREAS, the City has been issued an on-sale alcoholic beverage license and is
engaged in the sale of alcoholic beverages, and
WHEREAS, the City desires to enter into an Operating Agreement on a limited basis
with the Manager for the purpose of operating an on-sale establishment or business for
and on behalf of the City pursuant to law, and
WHEREAS, the Manager has offered to have facilities in which to operate said on-sale
establishment solely upon the premises hereinafter described.
NOW, THEREFORE IT IS MUTUALLY AGREED AS FOLLOWS:
I.
This Agreement is made and entered into on a limited basis between the parties hereto
to allow the Manager to operate a retail on-sale premises, pursuant to and in
accordance with all of the terms and conditions of this Agreement in accordance with all
State laws and City Ordinances now in effect and as may be enacted in the future.
II.
The Manager shall be individually responsible for all operating expenses of said on-sale
establishment, including but not limited to utilities, taxes, insurance, and license fees, if
any.
The Manager shall furnish all equipment and fixtures necessary to operate the
establishment.
III.
The on-sale establishment shall be located upon real estate in the City of Brookings,
South Dakota, described as:
Blocks 6 and 7, Wiese Addition.
IV.
The Manager shall dispense only alcoholic beverages supplied by the Municipal Off-
Sale establishment.
V.
This Agreement shall be in full force and effect for the remaining five (5) years of the ten
(10) year agreement, subject to the approval of the governing body of the City of
Brookings.
VI.
Either the Manager or the City may terminate this Agreement without cause upon ninety
(90) days written notice served by either party upon the other. The City reserves the
right to immediately suspend or revoke this Agreement without ninety (90) days written
notice for alcohol related violations in accordance with the provisions of Resolution No.
25-88 or any amendments thereto or for any late payments for alcoholic beverages
supplied by the Municipal Off-Sale Establishment to be sold on the premises of
Manager.
VII.
The Manager shall receive as full compensation for its services rendered, the net profit
from the on-sale establishment under its management, and the sole profit to be derived
by the City shall be the markup hereinafter set forth on alcoholic beverages furnished by
the municipality to the Manager for the purposes of resale on the premises as above
described.
VIII.
The Manager shall pay to the City for all alcoholic beverages sold by the City to the
Manager for resale on the above-described premises, the actual cost of distilled spirits
and wine supplied by the City, plus eleven percent (11%) in excess of such cost; the
Manager shall pay to the City for all malt beverages sold by the City to the Manager for
resale on the above-described premises, the actual cost of malt beverages, plus ten
percent (10%) in excess of such cost. The actual cost shall include cost price and
transportation charges. The markup percentages provided in this Agreement are
subject to change by the City of Brookings. In the event markup percentages are
changed by Ordinance, then the markup percentages provided by City Ordinance shall
supercede the markup percentages provided herein. The Manager further agrees that if
either of the markup percentages shall be increased at any time by the City, the
Manager shall pay the markup as so increased.
IX.
A complete and detailed record shall be maintained by the City of all alcoholic
beverages supplied to the on-sale Manager and such alcoholic beverages so supplied
shall be evidenced by pre-numbered invoices prepared in triplicate showing the date,
quality, brand, size, and actual cost of such item, and such invoice shall bear the
signature of the authorized representative of the on-sale Manager or its authorized
representative. One copy thereof shall be retained by the Municipal off-sale
establishment, one copy shall be retained by the on-sale establishment, and one copy
shall be filed with the City Clerk. All copies shall be kept as permanent records and
made available for reference and audit purposes. The Manager also agrees to maintain
a complete record of all alcoholic beverages received from the City.
X.
In consideration of the covenants herein contained, the Manager agrees to pay the
CITY OF BROOKINGS, One Thousand Five Hundred, and no/100 Dollars ($1,500.00),
constituting the Annual License Fee on or by the 1st day of November of each year
thereafter as long as this agreement shall remain in force and effect. The payment of
the Annual Renewal License Fee will not extend the term of this Operating Agreement
beyond the term provided therein. The Manager further agrees that if the annual fee
shall be increased at any time by the legislature, the Manager shall pay the amount of
any such increase.
XI.
The Manager agrees to keep the premises in a neat, clean and attractive appearance,
and Manager further agrees to operate said on-sale establishment only on such days
and at such hours as permitted by state law and city ordinances.
XII.
The Manager shall have the right to return, at any time, alcoholic beverages received
from the City and to receive in return any deposit made for such alcoholic beverages; in
the event of termination of the business, all unused alcoholic beverages, which may be
resold without discount may be returned to the City and the Manager shall be
reimbursed for the of such alcoholic beverages.
XIII.
The Manager agrees to abide by the credit policies of the City and acknowledges, by
execution of this Agreement, receipt of a copy of the credit policies of the City. The City
reserves the right to change or terminate its credit policies at any time, but shall be
required to provide written notice to Manager prior to the effective date of the change or
termination date of the credit policies.
XIV.
The Manager agrees to furnish the City upon demand, evidence of payment of the
following:
A. All salaries of on-sale employees;
B. Social Security and withholding taxes on said employees;
C. Worker’s Compensation insurance premiums covering said employees;
D. Unemployment taxes on the payrolls of said employees;
E. General liability insurance protecting both the City and the Manager against
claims for injury or damages to persons or property, said policy to have
general liability limits of at least Five Hundred Thousand Dollars
($500,000.00) single limit, and One Million Dollars ($1,000,000.00) aggregate,
and a limitation of Fifty Thousand Dollars ($50,000.00) for damage to
property. The general liability insurance limits are subject to change and
Manager agrees to change limits of insurance if required by the City;
F. Rent and utility bills; and
G. Any and all miscellaneous expenses, including taxes.
XV.
The Manager agrees to observe all Federal and State laws and ordinances of the City
of Brookings.
XVI.
The City covenants and agrees to furnish the on-sale license to Manager pursuant to
the terms and conditions of this Operating Agreement and the terms and conditions of
the on-sale license.
XVII.
The City has the right to make inspections and investigations of the premises during the
hours of operation, and make audits and examinations of the records of the Manager
relating to the on-sale establishment.
XVIII.
It is further specifically understood and agreed that the waiver of the rights of the City
under this Agreement shall not constitute a continuous waiver, and any violation or
breach of the terms of this Agreement by the Manager shall constitute a separate and
distinct offense and grounds for immediate termination and revocation of this
Agreement.
XIX.
This agreement shall not be assignable to another person or location without the written
consent of the City.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement which is
effective this 28th day of November, 2017.
CITY OF BROOKINGS, South Dakota
A Municipal Corporation
By:
ATTEST:Jeffrey W. Weldon, City Manager
Shari Thornes, City Clerk
MANAGER
By:
By:
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:RES 17-106,Version:1
Action on Resolution 17-106, a Resolution declaring furniture and computers as surplus property
(Public Library).
Summary:
The City of Brookings is the owner of the following described equipment formerly used in the Library:
·Eight (8) - children’s benches measuring 72x11x15 in red, blue, yellow and green,
·Five (5) - wooden green-topped study carrels
·One (1) - wooden desk
·Four (4) - brown tables
·One (1) - green-topped wooden table
·One (1) - small grey filing cabinet
·One (1) - brown, wooden double study carrel
· Twenty-three (23) - wooden chairs
·One (1) -computer chair
·One (1) -Computer cart
·One (1) -Metal Desk
·One (1) - 2008 -PC -HP Compaq dc7900 Convertible Minitower
·One (1) --2009 - PC - HP Compaq dc7900 Convertible Minitower
·Two (2) -2010 -Laptop -HP Compaq 8000 Elite CMT (dead)
·One (1) - 2010 -PC -Dell Latitude d620 Notebook (dead)
·One (1) -2011 -Laptop - Toshiba NB505-N508BL
·One (1) -2009 -Laptop -Compaq Cq60-211DX (dead)
·One (1) -2007 -PC -Gateway E4610D (dead)
·One (1) -2009 -PC -HP Compaq Convertible dc7900
·One (1) -2009 -Printer -Kyocera FC-C5200DN
·One (1) -2005 -Printer -HP Deskjet 4100N
·One (1) -2005 -Printer -H P Deskjet 3845
·One (1) -2007 -Printer -HP Deskjest 4100N
·One (1) -2008 -Printer -Epson PSC Photo RX680
·Seven (7) - Gateway Monitors (6 working, one dead)
·One (1) -NEC Monitor (Dead)
·One (1) -ViewSonic Monitor (Dead)
·One (1) -Backup Power Supply -APC (Dead)
·One (1) -Epson Perfection 2400 Scanner
·One (1) -IBM Wheel Writer 3 Typwriter
Background:
The Library will surplus furniture, computers, and printers. The surplus furniture and computers are
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File #:RES 17-106,Version:1
no longer needed by the library or have been replaced. The Library plans to sell the surplus property
on the Public Surplus website.
Fiscal Impact:
The City will receive the sale value of the surplus property. Council action is required to declare
these items surplus.
This equipment is being declared surplus property according to SDCL Chapter 6-13.
Recommendation:
Staff recommends approval.
Attachments:
Resolution
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Resolution 17-106
Declaring Furniture and Computers as Surplus Property (Public Library)
Whereas, the City of Brookings is the owner of the following described equipment formerly
used at the City of Brookings Public Library:
Eight (8) – children’s benches measuring 72x11x15 in red, blue, yellow and green,
Five (5) – wooden, green-topped study carrels
One (1) – wooden desk
Four (4) – wooden brown-topped tables
One (1) – wooden green-topped table
One (1) – small grey filing cabinet
One (1) – wooden brown double study carrel
Twenty-three (23) – wooden chairs
One (1) –computer chair
One (1) –Computer cart
One (1) –Metal Desk
One (1) – 2008 -PC -HP Compaq dc7900 Convertible Minitower
One (1) -2009 - PC - HP Compaq dc7900 Convertible Minitower
Two (2) -2010 –Laptop –HP Compaq 8000 Elite CMT (dead)
One (1) – 2010 –PC –Dell Latitude d620 Notebook (dead)
One (1) -2011 –Laptop - Toshiba NB505-N508BL
One (1) -2009 –Laptop –Compaq Cq60-211DX (dead)
One (1) -2007 –PC –Gateway E4610D (dead)
One (1) -2009 –PC –HP Compaq Convertible dc7900
One (1) -2009 –Printer –Kyocera FC-C5200DN
One (1) -2005 –Printer –HP Deskjet 4100N
One (1) -2005 –Printer –H P Deskjet 3845
One (1) -2007 –Printer –HP Deskjet 4100N
One (1) -2008 –Printer –Epson PSC Photo RX680
Seven (7) – Gateway Monitors (6 working, one dead)
One (1) –NEC Monitor (Dead)
One (1) –View Sonic Monitor (Dead)
One (1) –Backup Power Supply –APC (Dead)
One (1) –Epson Perfection 2400 Scanner
One (1) –IBM Wheel Writer 3 Typewriter
Whereas, in the best financial interest, it is the desire of the City of Brookings to sell same as
surplus property; and
Whereas, the City Manager hereby authorized to sell said surplus property.
Now, Therefore, Be It Resolved by the governing body of the City of Brookings, South
Dakota, that this property be declared surplus property according to SDCL Chapter 6-13.
Passed and approved this 28th day of November, 2017.
CITY OF BROOKINGS
_______________________
Keith W. Corbett, Mayor
ATTEST:
___________________________
Shari Thornes, City Clerk
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:RES 17-099,Version:2
Action on Resolution 17-099, a Resolution declaring a 973 Track Machine as Surplus Property
(Landfill/Solid Waste Dept.).
Summary:
The 973 Track Machine is used daily for many different functions at the landfill.
Background:
The Track Machine was purchased in 2011 and has over 13,000 hours on it. The machine was used
an additional two years.
Fiscal Impact:
The appraised value of the machine is $50,000.00
Recommendation:
Staff recommends approval.
Attachments:
Resolution
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Resolution 17-099
Declaring a 973 Track Machine as Surplus Property (Landfill/Solid Waste Dept.).
Whereas, the City of Brookings is the owner of the following described equipment
formerly used by the City of Brookings Landfill Department:
One (1) 2011 973 Track Machine Serial#LCP00214.
Whereas, in the best financial interest, it is the desire of the City of Brookings to sell
same as surplus property; and
Whereas, the City Manager is hereby authorized to sell said surplus property.
Now, Therefore, Be It Resolved by the governing body of the City of Brookings, SD, that
this property be declared surplus property according to SDCL Chapter 6-13.
Passed and approved this 28th day of November, 2017.
CITY OF BROOKINGS
___________________
Keith W. Corbett, Mayor
ATTEST:
_____________________
Shari Thornes, City Clerk
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:RES 17-098,Version:1
Action on Resolution 17-098, a Resolution awarding the contract for the purchase of one new Track
Machine for the Landfill through the National Joint Powers Alliance.
The Landfill has received a quote for one new John Deere 850K Track Machine from RDO
Equipment Company through the National Joint Powers Alliance for $356,754.70.
Background:
The current 973 Track Machine was purchased in 2011 and is on a five-year replacement plan based
on the Capital Improvement Plan. The landfill was able to operate the machine an additional two
years.
Fiscal Impact:
The Capital Improvement amount set aside for 2018 to replace the track machine is $400,000.00.
The purchase price on the new machine will be $356,754.70 for a savings of $43,245.30.
Recommendation:
Staff recommends approval.
Attachments:
Resolution
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Resolution 17-098
Resolution awarding the contract for the purchase of one new Track Machine for
the Landfill through the National Joint Powers Alliance
Whereas, the City of Brookings Regional Landfill will purchase a John Deere 850K
Track Machine from RDO Equipment Company through the National Joint Powers
Alliance; and
Whereas, the City of Brookings will purchase from RDO Equipment Company, Sioux
Falls, SD one John Deere 850K Track machine for $356,754.74; and
Whereas, this John Deere 850K Track Machine will replace a 2011 973D Track
Machine with delivery and payment made after January 1, 2018; and
Whereas, the capital budget for the purchase of one Track Machine is $400,000.00.
Now, Therefore, Be It Resolved that the contract from RDO Equipment Company for
$356,754.74 be accepted.
Passed and approved this 28th day of November, 2017.
CITY OF BROOKINGS
____________________
Keith W. Corbett, Mayor
ATTEST:
_____________________
Shari Thornes, City Clerk
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:RES 17-097,Version:1
Action on Resolution 17-097, a Resolution awarding the contract for the purchase of a new Vacuum
Truck for Solid Waste Collection through the National Joint Powers Alliance.
Summary:
The Solid Waste Collection Department received a quote for a new Vacuum Truck from Sanitation
Products through the National Joint Powers Alliance for $187,630.00.
Background:
This Vacuum Truck will be used by three City Departments: Street Dept., Solid Waste Collection, and
the Regional Landfill.
Fiscal Impact:
The Vacuum Truck will be purchased out of the Solid Waste Collection Capital Improvement Fund.
The amount budgeted is $210,000.00 and the cost is $187,630.00 for a savings of $22,370.00.
Recommendation:
Staff recommends approval.
Attachments:
Resolution
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Resolution 17-097
Resolution awarding the contract for the purchase of a new Vacuum Truck for
Solid Waste Collection through the National Joint Powers Alliance.
Whereas, the City of Brookings Solid Waste Collection will purchase an Automated
Vacuum Truck from Sanitation Products, Inc. through the National Joint Powers
Alliance; and
Whereas, the City of Brookings will purchase from Sanitation Products, Inc. of Sioux
Falls, South Dakota one Automated Vacuum Truck in the amount of $187,630.00; and
Whereas, the Automated Vacuum Truck will be delivered and payment made after
January 1, 2018; and
Whereas, the Capital Budget for the purchase of one Automated Vacuum Truck is
$210,000.00.
Now, Therefore, Be It Resolved that the contract from Sanitation Products, Inc. for
$187,630.00 be accepted.
Passed and approved this 28th day of November, 2017.
CITY OF BROOKINGS
________________________________
Keith W. Corbett, Mayor
ATTEST:
_________________________
Shari Thornes, City Clerk
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:RES 17-109,Version:1
Action on Resolution 17-109, a Resolution amending the Building Permit Fee for Certain Building
Projects.
Summary:
This resolution will authorize that the Building Permit Fees and Moving Fees be waived for Interlakes
Community Action, Inc. and Habitat for Humanity.
Background:
The Brookings City Council previously adopted Resolution 87-05 on October 25, 2005, which waived
the Building Permit Fee for new home construction for Interlakes Community Action, Inc. and Habitat
for Humanity. Habitat for Humanity recently inquired with engineering staff if moving permits and
other building permits, such as for remodeling, were also exempt from the fee. The current wording
of the resolution refers only to new home construction.
The City of Brookings has been supportive of affordable housing projects and this resolution will
clarify that moving permits and all building permits will be waived for Interlakes Community Action,
Inc. and Habitat for Humanity. Both groups will continue to apply for the proper permits as they have
in the past.
Fiscal Impact:
The City’s revenue will be reduced slightly due to waiving the fees.
Recommendation:
Staff recommends approval.
Attachments:
Resolution - clean copy
Resolution - marked copy
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Resolution 17-109
A Resolution Amending the Building Permit Fee for Certain Building Projects
Whereas, the City is desirous in assisting Interlakes Community Action, Inc. and Habitat
for Humanity with construction of affordable housing within the City of Brookings; and
Whereas, Interlakes Community Action, Inc. and Habitat for Humanity have undertaken
several affordable housing projects to serve the residents of the City of Brookings.
Now, Therefore, Be It Resolved that the Building Permit Fees and Moving Fees be
waived for Interlakes Community Action, Inc. and Habitat for Humanity.
This Resolution will rescind Resolution 87-05 adopted on October 25, 2005.
Passed and approved this 28th day of November, 2017.
CITY OF BROOKINGS
_________________________
Keith W. Corbett, Mayor
ATTEST:
_____________________________
Shari Thornes, City Clerk
Resolution No. 87-05 17-109
A Resolution Amending the Building Permit Fee for Certain Building Projects
Whereas, the City is desirous in assisting Interlakes Community Action, Inc. and Habitat
for Humanity with construction of building affordable housing within the City of
Brookings; and
Whereas, Interlakes Community Action, Inc. and Habitat For Humanity have
undertaken several affordable housing projects to serve the residents of the City of
Brookings.
Now, Therefore, Be It Resolved that the Building Permit Fees and Moving Fees be
waived for new home construction for Interlakes Community Action, Inc. and Habitat for
Humanity.
This resolution will rescind Resolution 87-05 adopted on October 25, 2005.
Passed and approved this 25th 28th day of October, 2005 November, 2017.
CITY OF BROOKINGS
______________________________
Scott D. Munsterman Keith Corbett, Mayor
ATTEST:
______________________________
Shari Thornes, City Clerk
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:RES 17-110,Version:1
Action on Resolution 17-110, a Resolution Fixing Time and Place for Hearing Upon the Assessment
Roll for the 2017 Assessment of the 2014-02STA Main Avenue South and 26th Street South
Reassessment.
Summary:
The Resolution will set the date and time for a public hearing on the 2014-02STA Assessment costs
for the Main Avenue South and 26th Street South Reassessment.
Background:
The Resolution fixes the date and time for the 2017 Assessment of the 2014-02STA Main Avenue
South and 26th Street South Reassessment costs, which will be held on Tuesday, December 12,
2017. The City will publish the notice of the public hearing and mail a copy of the notice as outlined
in the Resolution. The City has been working with property owners on the assessments for this
project. This is a procedural step in the process to reassess and levy the costs for the 2014-02STA
Main Avenue South and 26th Street South Project.
Recommendation:
Staff recommends approval.
Attachments:
Resolution
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Resolution 17-110
Resolution Fixing Time and Place for Hearing Upon the Assessment Roll
for the 2017 Assessment of the 2014-02STA Main Avenue South and 26
th Street
South Reassessment
Be It Resolved, by the City Council of the City of Brookings, South Dakota, as follows:
1. The Assessment Roll for the 2017 Assessment of the 2014-02STA Main
Avenue South and 26th Street South Reassessment having been filed in the office of the
City Clerk on the 20th day of November, 2017 and the City Council shall meet in the
Chambers, Brookings City & County Government Center, in said City on Tuesday, the
12th day of December, 2017, at 6:00 P.M.
2. The City Engineer is authorized and directed to prepare a notice describing, in
general terms, the 2017 Assessment of the 2014-02STA Main Avenue South and 26
th
Street South Reassessment, the date of filing the Assessment Roll, the time and place
of hearing thereon, stating that the Assessment Roll will be open for public inspection at
the office of the City Engineer and referring to the Assessment Roll for further
particulars.
3. The City Clerk is authorized and directed to publish said notice in the official
newspaper not less than 10 nor more than 20 days before the date set for hearing and
to mail a copy thereof, by first class mail addressed to the owner or owners of any
property to be assessed at his, her, or their last mailing address as shown by the
records of the Director of Equalization not less than 10 nor more than 20 days before
the date set for said hearing.
Passed and approved this 28th day of November, 2017.
CITY OF BROOKINGS
____________________________
Keith W. Corbett, Mayor
ATTEST:
_____________________________
Shari Thornes, City Clerk
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:RES 17-108,Version:1
Action on Resolution 17-108, a Resolution Authorizing Change Order No. 1 (Final) for 2017-01SWR
Concrete Maintenance Project; Clark Drew Construction, Inc.
Summary:
The resolution will approve the final Change Order for 2017-01SWR, Concrete Maintenance Project
with Clark Drew Construction, Inc. to adjust bid quantities to as-constructed quantities and for
additional storm sewer work for a total decrease of $119,252.69 to close-out the project.
Background:
This project is the Annual Concrete Project and entails construction of miscellaneous concrete work
including curb and gutter repair, fillets, valley gutters, curb ramps, and sidewalk along vacant
property. This project also includes homeowner trip hazards that weren’t repaired in the 2016
sidewalk area which is east of Medary Avenue South and between 6th Street and Orchard Drive and
property owners in the 2017 sidewalk area who volunteered to be in the project, which is north of 6 th
Street and east of Medary Avenue.
The project is completed and is ready to be closed out. This Change Order adjusts the bid quantities
to as-constructed quantities and for additional storm sewer work for a total decrease of $119,252.69
to close out the project. The decrease in cost was due to less sidewalk work from property owners
who completed their own work, postponing ramp and driveway work that was near the High School,
and postponing valley gutters in high traffic areas that were not completed during the summer while
traffic was lower. The work that was postponed will be added to the 2018 concrete project.
A summary is as follows:
Original Contract Price:$326,838.60
Increase from Previously Approved Change Order:$0.00
Contract Price Prior to this Change Order:$326,838.60
Decrease of this Change Order (No. 1 Final):$119,252.69
Contract Price incorporating this Change Order:$207,585.91
Fiscal Impact:
The contract will be decreased by $119,252.69 to close out the project.
Recommendation:
Staff recommends approval.
Attachments:
Resolution
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Resolution 17-108
Resolution Authorizing Change Order No. 1, Final, for
2017-01SWR, Concrete Maintenance Project; Clark Drew Construction, Inc.
Be It Resolved by the City Council that the following Change Order be allowed for 2017-
01SWR, Concrete Maintenance Project:
Construction Change Order Number 1 (Final): Adjust plan quantities to as-
constructed quantities and for additional storm sewer work for a total decrease of
$119,252.69 to close out the project.
Passed and approved this 28th day of November, 2017.
CITY OF BROOKINGS
________________________________
Keith W. Corbett, Mayor
ATTEST:
_________________________
Shari Thornes, City Clerk
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:RES 17-107,Version:1
Action on Resolution 17-107, a Resolution awarding the contract for the purchase of two (2) New
2018 Pick-ups, a Chevrolet Silverado ¾ Ton 4x4 Extended Cab Short Box and a Chevrolet Silverado
4x4 Crew Cab for the Parks, Recreation & Forestry Dept. (Parks) through the SD State Bid Contract.
Summary:
Council approval is requested for the purchase of two pick-ups, an extended cab 4x4 and a crew cab
4x4 as listed in the 2018 CIP. Multiple bids were solicited through the SD State Contracting Service
and the low bid was received from Beck Motors, Inc.
Fiscal Impact:
Purchase price of the vehicles is $58,784.00. Budgeted CIP amount was $64,000.
Recommendation:
Staff recommends approval.
Attachments:
Resolution
City of Brookings Printed on 11/21/2017Page 1 of 1
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Resolution 17-107
Resolution awarding the contract for the purchase of two (2) New 2018 Pick-ups,
a Chevrolet Silverado ¾ Ton 4x4 Extended Cab Short Box and a Chevrolet
Silverado 4x4 Crew Cab for the Parks, Recreation & Forestry Dept. (Parks)
through the SD State Bid Contract.
Whereas, the City of Brookings Parks, Recreation & Forestry Dept. has sought and
received the following quote for two new 2018 pick-ups from the Beck Motors, Inc. State
Bid Contract #17144 Item #15 and Item #33:
Company State Bid Amount
Beck Motors, Inc.Item #15 $28,832.00
Item #33 $29,952.00
Total:$58,784.00
and;
Whereas, the two new 2018 Pick-ups, a Chevrolet Silverado ¾ Ton 4x4 Extended Cab
Short Box and a Chevrolet Silverado 4x4 Crew Cab, will be delivered and payment
made after January 1, 2018; and
Whereas, the Capital Budget for the purchase is $64,000.
Now Therefore, Be It Resolved that the contract from Beck Motors, Inc. in the amount of
$58,784.00 be accepted.
Passed and approved this 28th day of November, 2017.
CITY OF BROOKINGS
________________________________
Keith W. Corbett, Mayor
ATTEST:
_________________________
Shari Thornes, City Clerk
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:RES 17-111,Version:1
Action on Resolution 17-111, a Resolution awarding the contract for the purchase of one New John
Deere 624K Loader for the City of Brookings Street Department through Admin Minnesota.
Summary:
The City of Brookings Street Department sought and received the following quote for one new 2018
John Deere 624K loader from RDO Equipment Co. through a Minnesota State Bidding Authority
called Admin Minnesota. RDO Equipment is shown as a qualified low bidder for articulating wheel
loaders and related accessories. This equipment purchase is part of the 2018 Capital Improvement
Equipment Budget, and will be received on or after January 1, 2018.
Background:
Due to Brookings’s impressive growth, the City Street Department will be increasing the fleet of
loaders from three to four with this 2018 Capital Improvement purchase. The addition of an extra
loader will prove vital in providing our Brookings residents a high level of street maintenance and
snow removal operations.
Fiscal Impact:
The capital for the expenditure of one 2018 John Deere 624K Loader is $182,664.25. The 2018
budgeted amount is $190,000.00, for a savings of $7,335.75.
Recommendation:
Staff recommends approval.
Attachments:
Resolution
City of Brookings Printed on 11/21/2017Page 1 of 1
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Resolution 17-111
Resolution Awarding a Contract for the purchase of one New John Deere 624K
Loader for the City of Brookings Street Department through Admin Minnesota.
Whereas, the City of Brookings Street Department requests action to purchase a new
2018 John Deere 624K Loader from, RDO Equipment; and
Whereas, the RDO Equipment is Contract No. 115215 for an Articulating Wheel Loader
and related accessories from Admin Minnesota Contract Release: L-331(5), a
Minnesota State Bid provider; and
Whereas, the City of Brookings will purchase from RDO Equipment, one 2018 John
Deere 624K Loader in the amount of $182,664.25; and
Whereas, the Capital Budget for the purchase of one John Deere 624K Loader is
$190,000.
Whereas, the 2018 John Deere 624K Loader will be delivered and payment made after
January 1, 2018; and
Now, Therefore, Be It Resolved, that the Contract from RDO Equipment for
$182,664.25 be accepted.
Passed and approved this 28th day of November, 2017.
CITY OF BROOKINGS, SD
__________________________
Keith W. Corbett, Mayor
ATTEST:
___________________________
Shari Thornes, City Clerk
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:ID 2017-0698,Version:1
Action on a Preliminary Plat for Block 3 and Lots 1-10, Block 4, D and D Addition, a portion of 7 th
Avenue South, and a portion of 15th Street South.
Summary:
The City of Brookings is seeking Preliminary Plat approval of ten (10) residential lots and a tract of
land for future storm water improvements. The plat also shows right-of-way for a portion of 7 th
Avenue South and a portion of 15th Street South.
Background:
The property is owned by the City of Brooking and zoned R-3. Block 3 will remain as a large tract as
it will be used for public drainage improvements. The City plans to construct portions of both 7 th
Avenue South and 15th Street South to connect to the existing street network as described by the
2011 Brookings Area Master Transportation Plan. The lots are shown on the Preliminary Plat to
establish a baseline density showing how the property might be developed in the future. The City
plans to work with non-profit groups to create affordable housing units in this area.
Findings of Fact:
The Preliminary Plat meets the requirements of the Subdivision Regulations and Zoning Ordinance.
City Engineer’s Comments:
A detention pond on the northwest corner of 7th Avenue South and 15th Street South is being
incorporated into the street construction plans and there are no additional drainage requirements for
this plat.
Planning Commission Recommendation:
The Planning Commission 9-0 to recommend approval of the Preliminary Plat.
Attachments:
Planning Commission Minutes 11-07-2017
Hearing Notice
Preliminary Plat
Area Map
City of Brookings Printed on 11/21/2017Page 1 of 1
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Planning Commission
Brookings, South Dakota
November 7, 2017
OFFICIAL MINUTES
Chairperson Al Heuton called the regular meeting of the City Planning Commission to order
on Tuesday, November 7, 2017, at 5:30 PM in the Chambers Room #310 on the third floor of
the City & County Government Center. Members present were Tanner Aiken, James Drew,
Greg Fargen, Alan Gregg, Alan Johnson, Lee Ann Pierce, Kristi Tornquist, Eric Rasmussen
and Heuton. Also present were Community Development Director Mike Struck, City Engineer
Jackie Lanning, David Jones, Joshua Westwick, and others.
Item #4a – The City of Brookings has submitted a preliminary plat of Block 3 and Lots 1, 2,
3, 4 5, 6, 7, 8, 9, and 10, Block 4, in D and D Addition, a Portion of 7th Avenue South and a
Portion of 15th Street South.
(Gregg/Pierce) Motion to approve the preliminary plat.
(Rasmussen/Pierce) Amendment to the original motion to eliminate the right-of-way of 7th
Avenue South north of 15th Street South. Rasmussen voted aye. All others voted no.
MOTION FAILED.
Original motion to approve the preliminary plat was voted on. All present voted aye.
MOTION CARRIED.
OFFICIAL SUMMARY
Item #4a – This is a preliminary plat of ten residential lots and a tract of land for drainage
facilities. The plat also shows rights-of-way for a portion of 7th Avenue South and a portion of
15th Street South. Block 3 on the north side will remain owned by the City of Brookings for
the drainage facilities. Rasmussen asked what the long term plan is for the north end of 7th
Avenue South? Because of a small community park and the dog park along the proposed 7th
Avenue South section, he feels that 7
th Avenue South should stop at 15th Street South. He is
concerned for the safety of citizens if this street continues through. Additionally, he is
concerned about the bike path that will have to cross 7th Avenue South. Struck explained
that 7th Avenue South is part of the Major Street Plan as this street would connect for a direct
route to Medary Elementary School. The City has planned, for several years, to have 7th
Avenue South connect and run all the way through from north to south. The plan is for 15th
Street South to connect from Main Avenue east to 17th Avenue South. Struck stated that the
Comprehensive Plan would have to be amended for the Major Street Plan if the Planning
Commission votes not to warrant the extension of 7th Avenue South.
Struck also explained that the land north of Block 3 is privately owned and the landowners
plan to develop this for business opportunities.
Pierce asked exactly what the plans are for the drainage facilities? Struck stated that the city
is considering implementing a drainage pond in this area. Currently the water flows on the
south side of Midwest Glass through the trees along the bike trail and a pond would be able
to control the flow of this drainage. Fargen asked what the plan was for the construction of
15th Street South? Struck stated the street and utility extension would connect to the existing
portion of 15th Street South near the mobile home park.
If you require assistance,alternative formats and/or accessible locations consistent with the Americans with
Disabilities Act, please contact the City ADA Coordinator at 692-6281 at least 48 hours prior to the meeting.
NOTICE OF HEARING ON A PRELIMINARY PLAT
NOTICE IS HEREBY GIVEN That the City of Brookings has submitted a preliminary
plat of the following described real estate situated in the City of Brookings in Brookings
County, South Dakota, to wit:
Block 3 and Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10, Block 4, D and D Addition, a
Portion of 7th Avenue South and a Portion of 15th Street South
NOTICE IS FURTHER GIVEN That said request will be acted on by the City
Planning Commission at 5:30 PM on Tuesday, November 7, 2017, in the Chambers Room
on the third floor of the Brookings City and County Government Center at 520 Third Street,
Brookings, South Dakota. Any action taken by the City Planning Commission is a
recommendation to the City Council.
Any person interested may appear and be heard in this matter.
____________________________
Staci Bungard
City Planner
B rook ings County, SD
Area Map
207 ft
Overvi ew
Legend
Br ookings City
Limits
City L imits
City Zoning
A
AP
B-1
B-2
B-2A
B-3
B-4
B-5
I-1
I-1R
I-2
JJ-A
JJ-B3
JJ-I1
JJ-I1R
JJ-R1A
JJ-R1B
JJ-R3A
PDD
R-1
R-1A
R-1B
R-1C
R-2
R-3
R-3A
RB-4
RMH
T ow nship Boundar y
Sections
Parcels
Roa ds
Developed by
The Schneider Corporation
Par cel ID 409601105035400
Sec/T wp/Rng 35-110-50
Pr oper ty Address
Alter na te ID n/a
Class G
Acr ea ge n/a
O w ner Addr ess BRO O KINGS C ITY
P O BOX 270
BRO O KINGS SD 57006
Distr ict 4001 - BROOKINGS/BROOKINGS SC H
Br ief T ax Descr iption O UTLOTS, OL A EXC . LOT H2 & EXC . D & D ADDN OF SE 1/4 IN SEC 35-110-50, 8.51 AC
(Note: Not to be used on leg a l documents)
Date created: 10/25/2017
Last Data Uploa ded: 10/25/2017 1:47:55 AM
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:ID 2017-0671,Version:1
Brookings Municipal Utilities Financial Report.
Summary:
Presentation by Steve Meyer, General Manager, and Laura Julius, Finance & Account Manager.
Attachments:
Presentation
City of Brookings Printed on 11/17/2017Page 1 of 1
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QUARTERLY
FINANCIAL
PRESENTATION
BMU / SWIFTEL
COMMUNICATIONS
November 28, 2017
Combining Balance Sheet
December 31, 2014, 2015, 2016 & September 30, 2017
Reported in Millions (0,000,000)
Total Funds
2014
Total Funds
2015
Total Funds
2016
Total Funds
9/30/17
Assets:$62.5 $71.7 $73.6 $77.2
Fixed Assets:
Cost $193.2 $203.0 $205.7 $212.4
Accumulated Depr.($92.1)($96.0)($95.9)($100.7)
Total Fixed Assets $101.1 $107.0 $109.8 $111.7
Total Assets $163.6 $178.7 $183.4 $188.9
Liabilities:$54.9 $58.2 $55.1 $56.2
Equity:$108.7 $120.5 $128.3 $132.7
Total Liabilities & Equity $163.6 $178.7 $183.4 $188.9
BMU Balance Sheets by Fund
September 30, 2017 Reported in Millions (0,000,000)
Electric
Fund
Telephone
Fund
Wastewater
Fund Water Fund Total Funds
Assets:$18.7 $30.6 $12.5 $15.4 $77.2
Fixed Assets:
Cost $54.9 $85.7 $54.2 $17.6 $212.4
Accumulated Depr.($20.0)($60.8)($12.6)($7.3)($100.7)
Total Fixed Assets $34.9 $24.9 $41.6 $10.3 $111.7
Total Assets $53.6 $55.5 $54.1 $25.7 $188.9
Liabilities:$10.4 $15.5 $29.7 $0.6 $56.2
Equity:$43.2 $40.0 $24.4 $25.1 $132.7
Total Liabilities & Equity $53.6 $55.5 $54.1 $25.7 $188.9
Combined Statement of Revenue and Expenses
December 31, 2014, 2015, 2016 & Budget 2017
Reported in Millions (0,000,000)
Total Funds
2014
Total Funds
2015
Total Funds
2016
Total Funds
Budget
2017
Total Revenue:$73.3 $72.6 $72.2 $72.6
Total Expenses:($61.6)($61.3)($62.3)($66.1)
Income Before Operating Transfers $11.7 $11.3 $9.9 $6.5
General Fund Transfer:($2.1)($2.1)($2.2)($2.3)
Net Income $9.6 $9.2 $7.7 $4.2
Combined Statement of Revenue and Expenses
September 30, 2014, 2015, 2016 & 2017
Reported in Millions (0,000,000)
Total Funds
9/30/14
Total Funds
9/30/15
Total Funds
9/30/16
Total Funds
9/30/17
Total Revenue:$52.9 $54.4 $53.5 $53.2
Total Expenses:($45.7)($46.2)($45.8)($47.1)
Income Before Operating Transfers $7.2 $8.2 $7.7 $6.1
General Fund Transfer:($1.5)($1.6)($1.6)($1.7)
Net Income $5.7 $6.6 $6.1 $4.4
BMU Statement of Revenue and Expenses
September 30, 2017
Reported in Millions (0,000,000)
Electric
Fund
Telephone
Fund
Wastewater
Fund
Water
Fund
Total
Funds
Total Revenue:$21.6 $23.4 $3.9 $4.3 $53.2
Total Expenses:($18.8)($22.4)($3.5)($2.4)($47.1)
Income Before Operating
Transfers $2.8 $1.0 $0.4 $1.9 $6.1
General Fund Transfer:($1.6)($0.1)$0.0 $0.0 ($1.7)
Net Income $1.2 $0.9 $0.4 $1.9 $4.4
BMU Statement of Revenue and Expenses
Reported in Millions (0,000,000)
Actual YTD
9/30/17
Budget YTD
9/30/17
Annual Budget
2017
Total Revenue:$53.2 $54.1 $72.6
Total Expenses:($47.1)($49.6)($66.1)
Income Before Operating
Transfers $6.1 $4.5 $6.5
General Fund Transfer:($1.7)($1.7)($2.3)
Net Income $4.4 $2.8 $4.2
$0
$5,000,000
$10,000,000
$15,000,000
$20,000,000
$25,000,000
$30,000,000
2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 3Q2017 2017
Budget
Capital Expenditures -Total Funds
Questions
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:ID 2017-0701,Version:1
Informational presentation pertaining to Transitional Housing.
Summary:
Mr. Craig Pahl, Chair of the Brookings Empowerment Project, would like to present information to the
City Council pertaining to an opportunity for transitional housing for certain clients as part of a return-
to-work program.
Recommendation:
Only informational at this time.
City of Brookings Printed on 11/21/2017Page 1 of 1
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City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:RES 17-102,Version:1
Action on Resolution 17-102, a Resolution authorizing Change Orders No. 1 and No. 2 (Final) for the
Brookings Arts Council Renovation (Carnegie Building) Project; Visions Construction Group of Tea,
SD.
Summary:
The 101-year-old Carnegie building, home of the Brookings Arts Council, also known as the
Community Cultural Center for more 40 years, has received much-needed upgrades. The contractor
embarked on a mechanical (HVAC) and electrical system overhaul. The building was outfitted with a
roof-top ground-mounted HVAC unit and new electrical service to support the growing needs of the
Arts Council. A new ADA compliant bathroom was constructed to accommodate the needs of all
patrons. Hardwood flooring (main gallery) and various other finishes completed the renovation work
for this project.
Background:
The building’s HVAC and mechanical systems were deteriorated and no longer met Building Code.
The need to replace additional items was an inevitable reality.
The Architect had originally budgeted a $45,000 contingency to cover unforeseen expenses to the
old building. The City had originally planned to upgrade the mechanical and electrical systems in
2016 before the winter months, but later decided to propose a full-scale project to rehabilitate the
historic building. The original budget to replace the mechanical and electrical systems was $100,000
to be funded from the Parks Division Budget as a capital improvement. Some of the $100,000
budget was used to commission JLG Architects and their expertise to design and conceptualize a
rehabilitation project for this facility. After commissioning JLG Architects, $69,253.80 of Parks
Division Capital Improvements Funds were left in the account. This remainder was rolled over to
year 2017 to supplement the rehabilitation project for this facility. The new budgeted contingency for
this project was $114,253.80.
The project had unforeseen challenges. Change Orders No. 1 and 2 (final) were necessary to
accommodate unforeseen challenges. Please see attached document labeled “Change Order Detail”
for a breakout of costs associated with Change Orders No. 1 and 2.
Originally, the total construction budget for the project was $416,395 with a $45,000 contingency.
Adding an additional $69,253.80 to the construction budget increased the City’s ability to finance
unforeseen items. The City was able to complete the project just under the $530,648.80 budget at
$516,752.67.
Fiscal Impact:
This project came under budget by $13,896.13.
A generous donor has committed to 2/3 of total funding for the project, which was estimated at
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File #:RES 17-102,Version:1
approximately $481,000. The City has budgeted $175,000 for the City’s share of the project. The
City plans on meeting with the donor to discuss the final construction budget and costs so the final
construction budget is utilized in the cost share formula.
Recommendation:
Staff recommends approval.
Attachments:
Resolution
Change Order Detail
City of Brookings Printed on 11/17/2017Page 2 of 2
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Resolution 17-102
A Resolution authorizing Change Orders No. 1 and No. 2 (Final)
for the Brookings Arts Council Renovation (Carnegie Building) Project;
Visions Construction Group of Tea, SD
Be It Resolved by the City Council that the following Change Order be allowed for
Brookings Arts Council’s Renovation, Construction Change Order Numbers No. 1 and
No.2 (Final):
Adjust scope of work to eliminate VCT in the basement, add sheet vinyl, replace
ice/watershield on roof, add exterior lighting, and incorporate kitchen and second
bathroom renovation for a total savings of $13,896.13 to close out the project.
Passed and approved this 28th day of November, 2017.
CITY OF BROOKINGS
_________________________
Keith W. Corbett, Mayor
ATTEST:
____________________________
Shari Thornes, City Clerk
Change order 1 was comprised of the following ($111,741.10):
Description of Work Amount
Window case work, labor, and material
(North Windows discovered)
$12,881.27
Plaster patching
(Budgeted at $33.00/sq.ft.)
Attic Insulation (not budgeted)
Wood stairs
(originally budgeted for carpet)
Add basement Concrete floor and landing
(Not budgeted, necessary to level floor)
Seal concrete floor
(Originally planned for a VCT flooring)
$1,851.53
Misc. electrical
Plaster patching
(Budgeted at $33.00/sq.ft.)
Exhaust fan relocation
(Basement bathroom)
Kitchen renovation
(Not originally budgeted)
Replacement of roof including copper
gutters, downspouts, underlayment (rain,
snow, and ice shield), and clay tile
(Unanticipated repair)
$97,008.53
Change order No. 2 (final) was comprised of the following ($7,769.20)
Description of Work Amount
Existing toilet room updates
(Budgeted for ADA bathroom, but left out
other bathroom. Upgraded lighting and
fixtures, and added paint)
$7,769.20 Exterior lighting
(Upgraded north, east, and south lighting
to LED)
Kitchen refrigerator and water line
(Added a new refrigerator to support
water line for existing cappuccino
machine)
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:RES 17-101,Version:1
Action on Resolution 17-101, a Resolution awarding a contract for the construction of a new Sexauer
Park Restroom Facility.
Summary:
On November 7, 2017, a bid opening was held for the construction of a new Sexauer Park Restroom
Facility.
Background:
The current restroom and shower facility constructed in 1982 is in need of replacement. The current
restroom is not ADA compliant, and because of its age, the fixtures, plumbing, and roof system is
deteriorating. Sexauer Park is the only park in Brookings where camping is allowed. The
campground contains 18 paved pads suitable for trailers, RVs, campers and similar vehicles.
Additionally, there is a large grass site available for tents. The east portion of Sexauer Park consists
of a playground, sand volleyball courts and a multi-purpose open green space area.
The project includes removing the existing restroom and shower facility and replacing it with a new
comfort station facility. The current facility includes a women and men’s restroom and a utility room.
The women’s restroom consists of three toilet stalls, a sink and one shower. The men’s restroom
consists of one urinal, two toilet stalls, a sink and one shower. The new proposed restroom will be
located in the same location as the current facility. The facility will consist of four separate unisex
restrooms. The restrooms would be ADA compliant and each will include a toilet and sink. In
addition, two of the four restrooms will have a shower. The floor plan will provide additional privacy
and be an efficient dual-use facility for the campground users as well as the park patrons. A final
project completion date will be mid-June 2018.
Staff recommends constructing the Sexauer Park Restroom Facility in 2017/2018 at the bid price of
$208,000.00. Clark Drew Construction, Inc. was the low bidder. Two bids were received for the
project.
Fiscal Impact:
·Architect/Engineer Professional Services:$30,578.22
·Construction Restroom Facility bid price:$208,000.00
Total:$238,578.22
Capital Improvement Plan
2017 CIP City Council supported budget of $283,753 for professional design services and for
construction of a new Restroom Facility at Sexauer Park.
Recommendation:
Staff recommends approval.
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File #:RES 17-101,Version:1
Attachments:
Resolution
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Resolution 17-101
Resolution Awarding a Contract for the Construction
of a new Sexauer Park Restroom Facility
Whereas, the City of Brookings held a bid letting at 1:30 p.m. on Tuesday, November 7,
2017; and
Whereas, the City of Brookings has received the following bids for the construction of a
new Sexauer Park Restroom Facility:
Company Bid Amount
Clark Drew Construction, Inc.$208,000.00
Visions Construction Group, Inc.$222,800.00
Now, Therefore, Be It Resolved that the low bid from Clark Drew Construction, Inc. in
the amount of $208,000.00 be accepted.
Passed and approved this 28th day of November, 2017.
CITY OF BROOKINGS
______________________________
Keith W. Corbett, Mayor
ATTEST:
_________________________
Shari Thornes, City Clerk
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:RES 17-105,Version:1
Action on Resolution 17-105, a Resolution Authorizing Change Order No. 1 (Final) for 2017-08STI
Street Maintenance & Overlay Project; Bowes Construction, Inc.
Summary:
The Resolution will approve the Final Change Order for 2017-08STI Street Maintenance & Overlay
Project with Bowes Construction, Inc. to adjust bid quantities to as-constructed quantities and for
additional storm sewer work at the airport for a total increase of $7,011.66 to close out the project.
Background:
This project was the Annual Street Maintenance Project, which includes asphalt milling, digouts, and
overlays on various streets in Brookings in need of repair. The areas that were repaired this year
included:
·Alley Paving from 1st Street So. to 2nd Street So. between 5th Avenue So. and 6th Avenue So.
This is an Assessment Project to pave the alley that was approved by the City Council. The
assessment cost will be based on the actual construction costs and the assessment steps will
proceed after this Change Order is approved.
·David Cove, north of Martin Boulevard: milling and asphalt overlay.
·Onaka Trail, south of 8th Street So.: digouts, milling, and asphalt overlay.
·Crystal Ridge Road between Indian Hills Road and Trail Ridge Road: digouts, milling, and
asphalt overlay.
·Bike Trail: asphalt overlay on the Bike Trail along 22nd Avenue and along 8th Street So., west
of Main Avenue So.
·Brookings Regional Airport: digouts and asphalt overlay in the hangar area on the east side of
the Airport.
The project is completed and is ready to be closed-out. This Change Order will adjust the bid
quantities to as-constructed quantities and for an additional storm sewer drain at the Airport for a total
increase of $7,011.66 to close-out the project. The increase in cost for the project was primarily due
to the final asphalt quantity being slightly higher than the bid quantity. The cost increase is within the
budgeted amount and does not require a Budget Amendment.
The following is a summary of the contract:
Original Contract Price:$384,690.00
Increase from Previously Approved Change Orders:$0.00
Contract Price Prior to this Change Order:$384,690.00
Increase of this Change Order (No. 1 Final):$7,011.66
Contract Price incorporating this Change Order:$391,701.66
Fiscal Impact:
The contract will be increased by $7,011.66 to close out the project.
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File #:RES 17-105,Version:1
Recommendation:
Staff recommends approval.
Attachments:
Resolution
City of Brookings Printed on 11/21/2017Page 2 of 2
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Resolution 17-105
Resolution Authorizing Change Order No. 1, Final, for
2017-08STI Street Maintenance and Overlay Project; Bowes Construction, Inc.
Be It Resolved by the City Council that the following Change Order be allowed for 2017-
08STI, Street Maintenance and Overlay Project:
Construction Change Order Number 1 (Final): Adjust plan quantities to as-
constructed quantities and for additional storm sewer work at the airport for a
total increase of $7,011.66 to close out the project.
Passed and approved this 28th day of November, 2017.
CITY OF BROOKINGS
________________________________
Keith W. Corbett, Mayor
ATTEST:
_________________________
Shari Thornes, City Clerk
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:ORD 17-025,Version:1
Introduction and First Reading on Ordinance 17-025, an Ordinance revising Division 3 of Chapter 82
of the Code of Ordinances of the City of Brookings and Pertaining to Speed Zones in the City of
Brookings, South Dakota. Second Reading: December 12, 2017.
Summary:
This Ordinance will revise the Brookings City Ordinance for speed limits on 6th Street to be the same
as the speed limits adopted by the State of South Dakota and for speed limit changes on 20 th Street
South between Main Avenue South and Western Avenue South.
Background:
The State of South Dakota recently adopted new speed limits for 6th Street, which is a state highway.
The new speed limit for 6th Street was changed to be 35 miles per hour from 370 feet east of 17th
Avenue to the east City limits of Brookings. The City staff also found that the City Ordinance had not
been updated to reflect a new speed limit on 20th Street South between Main Avenue South and
Western Avenue South. The Traffic Safety Committee recommended at their September 10, 2015
meeting to change the speed limit on 20th Street South between Main Avenue South and Western
Avenue to 25 mph, and the minutes are attached.
The City Ordinance will reflect the new speed limits on 6th Street, east of 17th Avenue and on 20th
Street South between Main Avenue South and Western Avenue South.
Fiscal Impact:
None.
Attachments:
Ordinance - clean version
Ordinance - marked version
Traffic Safety Minutes 9/10/2015
City of Brookings Printed on 11/21/2017Page 1 of 1
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Ordinance 17-025
An Ordinance Revising Division 3 of Chapter 82 of the Code of Ordinances of the City of
Brookings and Pertaining to Speed Zones in the City of Brookings, South Dakota.
Be It Ordained by the City of Brookings that Section 305 of Division 3 of Chapter 82 of the Code of
Ordinances of the City of Brookings be amended to read as follows:
Sec. 82-305. Speed zones.
(d) The following speed limits are established for the streets and portions of streets enumerated as
follows:
Street Extent Speed
Main Avenue South From 175 feet south of 1
st Street South to 3,960 feet south of
20th Street South 35
Medary Avenue From 325 feet north of North Campus Drive to US Highway
14 Bypass 35
From US Highway 14 Bypass to the north city limits 45
Medary Avenue South From 70 feet south of 16th Street South to the south city limits 35
22nd Avenue From US Highway 14 Bypass to the south city limits 35
8th Street South From the west city limits to 22nd Avenue South 35
20th Street South From Main Avenue South to 22nd Avenue South 35
34th Avenue From US Highway 14 to US Highway 14 Bypass 35
34th Avenue From US Highway 14 to the south city limits 35
US Highway 14 From the west city limits southeasterly to a point 55
1,560 feet northwesterly of the intersection
of US Highway 14 and Western Avenue
From 1,560 feet northwesterly of Western Avenue to
100 feet northwesterly of Western Avenue 40
From 100 feet Northwesterly of Western Avenue
To 370 feet east of 17th Avenue 30
From 370 feet east of 17
th Avenue to the east city limits 35
US Highway 14 Bypass From the west city limits to the east city limits 55
West 2nd Street South From Western Avenue to Division Avenue 35
Western Avenue From West 2nd Street South to north city limits 35
Western Avenue South From West 8th Street South to south city limits 35
West 20th Street South From Main Avenue South to Western Avenue South 25
From Western Avenue South to west city limits 35
II.
Any or all ordinances in conflict herewith are hereby repealed.
First Reading:November 28, 2017
Second Reading and Adoption:
Published:
CITY OF BROOKINGS, SD
Keith W. Corbett, Mayor
ATTEST:
Shari Thornes, City Clerk
Ordinance 17-025
An Ordinance Revising Division 3 of Chapter 82 of the Code of Ordinances of the City of
Brookings and Pertaining to Speed Zones in the City of Brookings, South Dakota.
Be It Ordained by the City of Brookings that Section 305 of Division 3 of Chapter 82 of the Code of
Ordinances of the City of Brookings be amended to read as follows:
Sec. 82-305. Speed zones.
(d) The following speed limits are established for the streets and portions of streets enumerated as
follows:
Street Extent Speed
Main Avenue South From 175 feet south of 1
st Street South to 3,960 feet south of
20th Street South 35
Medary Avenue From 325 feet north of North Campus Drive to US Highway
14 Bypass 35
From US Highway 14 Bypass to the north city limits 45
Medary Avenue South From 70 feet south of 16th Street South to the south city limits 35
22nd Avenue From US Highway 14 Bypass to the south city limits 35
8th Street South From the west city limits to 22nd Avenue South 35
20th Street South From Main Avenue South to 22nd Avenue South 35
34th Avenue From US Highway 14 to US Highway 14 Bypass 35
34th Avenue From US Highway 14 to the south city limits 35
US Highway 14 From the west city limits southeasterly to a point 55
1,560 feet northwesterly of the intersection
of US Highway 14 and Western Avenue
From 1,560 feet northwesterly of Western Avenue to
100 feet northwesterly of Western Avenue 40
From 100 feet Northwesterly of Western Avenue
To 370 feet east of 17th Avenue 30
From 370 feet east of 17
th Avenue to 428 feet
west of Lefevre Drive to the east city limits 35
From 428 feet west of Lefevre Drive to the east city limits 45
US Highway 14 Bypass From the west city limits to the east city limits 55
West 2nd Street South From Western Avenue to Division Avenue 35
Western Avenue From West 2nd Street South to north city limits 35
Western Avenue South From West 8th Street South to south city limits 35
West 20th Street South From Main Avenue South to west city limits Western Avenue South 3525
From Western Avenue South to west city limits 35
II.
Any or all ordinances in conflict herewith are hereby repealed.
First Reading:November 28, 2017
Second Reading and Adoption:
Published:
CITY OF BROOKINGS, SD
Keith W. Corbett, Mayor
ATTEST:
Shari Thornes, City Clerk
BROOKINGS TRAFFIC SAFETY COMMITTEE
City & County Government Center
Thursday, September 10, 2015
12:10 p.m.
The Brookings Traffic Safety Committee held its monthly meeting on Thursday, September
10, 2015, at 12:10pm in the City & County Government Center Suite 230, Room 241.
Members Present:Carol Rettkowski, Tony Sonnenburg, John Howard, Skip Webster, Brian
Lueders, Becky Schmieding, Shayn Damm, James Weiss, Jeff Miller, and Jackie Lanning.
Members Absent:Gary Gramm, Gregg Jorgenson, Tim Heaton, and Pete Kirchhevel.
Others Present: Matt Bartley
Call to Order: Howard called the meeting to order. Webster/Schmieding made a motion to
approve the minutes from the August 13, 2015 meeting. All present voted aye. Motion
passed.
Additions to Agenda: None
Old Business:
Discussion on the speed limit on 20th Street South between Western Avenue South and Main
Avenue South
Lanning stated last month the committee decided to monitor this area after the new
school opened to watch the traffic patterns. Miller stated he has not seen any foot traffic
crossing 20th Street South; however he saw a lot of vehicle traffic going both ways on the
road. He stated after the development was finished, he believed there would be more
pedestrian traffic. Vehicles driving easterly on 20th Street South have limited visibility over the
hill and the speed limit is currently 35 mph. Miller would like the speed limit to be lowered to
25 mph especially with visibility over the hill. Webster agreed and stated the speed limit is 55
mph west of Western Avenue and that vehicles traveling east on 20
th Street South are
traveling at a high speed.
Schmieding asked if a 4-way stop sign at Western Avenue and 20th Street South
would be a better option. Miller said in the future the stop signs may be an option. Lanning
stated the City would need to conduct a traffic study to see if the intersection would warrant a
4-way stop sign. Schmieding asked when 20th Street South is widened in 2017 if there would
be pedestrians crossing the road. She stated if the east end of 20
th Street South is 35 mph,
then making a section of the road 25 mph seemed inconsistent. Rettkowski stated she drove
the area and would like to see signs installed warning of the reduced speeds. Webster/
Rettkowski made a motion to reduce the speed limit to 25 mph on 20th Street South
between Western Avenue South and Main Avenue South. 7 members voted aye, 2
members voted no. Motion passed.
New Business:
Member Reports:
Lanning received a request to look at parking on 13th Avenue between 5th Street and
7th Street which will be on next month’s agenda.
Lanning received a request to have DOT to conduct a traffic study at 13th Avenue and
6th Street to see if a signal is needed at that intersection or if the 12th Avenue signal
could be moved.
Weiss asked if the 3-way stop sign can be removed due to the construction being
completed on 12th Avenue and 8th Street.
The next meeting will be October 8, 2015. Meeting adjourned.
Submitted by: Chris Larson
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:ORD 17-026,Version:1
Introduction and First Reading on Ordinance 17-026, an Ordinance amending Section 94-398 of the
Zoning Ordinance, pertaining to fences, walls, and hedges. Public Hearing: December 12, 2017.
Summary:
Staff has prepared an Ordinance Amendment to the fences, walls, and hedges section of the Zoning
Ordinance.
Background:
Currently, the Ordinance prohibits any fence, wall, or hedge above 30 inches in the front yard. A
fence with a horizontal rail design that is 70 percent open may be up to 42 inches in height. The front
yard includes all the yard area between the front of the residence and the front property line. In an
effort to work with property owners, staff is proposing an amendment that will allow fences, hedges,
and walls in the front yard to be maximum height of 4 feet. Any fence, wall, or hedge shall not be
over 30 inches in height in the sight distance triangle, unless the design is at least 70 percent open
for fences.
The Planning Commission tabled the item on September 5, 2017 and again on October 3, 2017.
Planning Commission Recommendation:
The Planning Commission voted 8-1 to recommend approval of the ordinance amendment on
November 7, 2017.
Attachments:
Ordinance - Clean Copy
Ordinance - Marked Copy
Planning Commission Minutes 9/5/2017, 10/3/2017, 11/7/2017
Hearing Notice
Comparison Chart
City of Brookings Printed on 11/21/2017Page 1 of 1
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Page 1
Ordinance 17-026
An ordinance amending the Zoning Ordinance of the City of Brookings and
pertaining to fences, walls, and hedges for the purpose of administration of the
Zoning Ordinance
Be It Ordained by the Council of the City of Brookings, State of South Dakota: that
Chapter 94, Zoning, Section 94-394, Subsection (a) and (b) shall be amended as
follows:
I.
Sec. 94-398. - Fences, walls, hedges
(a)Regulations generally.Regulations regarding fences, walls, and hedges are as
follows: In all residential districts and on lots used principally for residential purposes
in any business or industrial district, privacy fencing utilizing solid board or other
similarly designed fences, walls and hedges shall not exceed 48 inches in height
when located between the front lot line and the principal building. Fences and walls
on any other part of a lot may not exceed six feet in height when located within the
minimum required setback area. The height of such walls and fences shall be
determined by measurement from the ground level at the lowest grade within three
feet of either side of such fence or wall.
(1) Fences, walls, and hedges, shall be a maximum of 30 inches in height in the
sight triangle as referenced in Section 94-407.
(2) Fences with a design that results in 70 percent or more of open space from
the grade to the top may be permitted in the required site triangle.
(b)Exceptions.
(1) Fences, walls and hedges up to six feet in height may be placed in a front yard
opposite the street address of a lot abutting an arterial street where:
a. The lot is a double frontage lot; and
b. The lot is not adjacent to an alley which accesses onto the arterial street; and
c.The lot is not a corner lot; and
d. No driveways exit onto the arterial street; and
e. The fence, wall or hedge is set back four or more feet from the front property
line.
(2) Fences, walls and hedges up to six feet in height may be placed in a front yard
opposite the street address of a lot abutting a local or collector street where:
a. The lot is a double frontage lot; and
b. The fence, wall or hedge meets the minimum required setback of the district
the lot is located in.
(c) In all business districts, fences up to eight feet in height may be erected within 20 feet
of any front property line and up to any side or rear property line. Exception: Fences
shall not be erected between a lot line and any areas required to be landscaped. This
provision shall not prohibit the screening of outdoor storage of materials and inventory
as required by other sections of this chapter.
Amend Section 94-1. Definitions.
Page 2
Hedges: a fence or boundary formed by a dense row of shrubs, bushes, or low lying trees.
II.
Any or all ordinances in conflict herewith are hereby repealed.
First Reading:November 28, 2017
Public Hearing and Adoption:
Published:
CITY OF BROOKINGS, SD
_________________________
Keith W. Corbett, Mayor
ATTEST:
________________________
Shari Thornes, City Clerk
Page 1
Ordinance 17-026
An ordinance amending the Zoning Ordinance of the City of Brookings and
pertaining to fences, walls, and hedges for the purpose of administration of the
Zoning Ordinance
Be It Ordained by the Council of the City of Brookings, State of South Dakota: that
Chapter 94, Zoning, Section 94-394, Subsection (a) and (b) shall be amended as
follows:
I.
Sec. 94-398. - Fences, walls, hedges
(a)Regulations generally.Regulations regarding fences, walls, and hedges are as
follows: In all residential districts and on lots used principally for residential purposes
in any business or industrial district, privacy fencing utilizing solid board or other
similarly designed fences, walls and hedges shall not exceed 48 inches 30 inches in
height when located between the front lot line and the principal building. Fences with
a horizontal rail design that results in 70 percent or more of open space from grade
to the top of the top rail may extend 42 inches above the adjacent grade measured
from grade to the top of the top horizontal rail. Fences and walls on any other part of
a lot may not exceed six feet in height when located within the minimum required
setback area. The height of such walls and fences shall be determined by
measurement from the ground level at the lowest grade within three feet of either side
of such fence or wall.
(1)Fences, walls, and hedges, shall be a maximum of 30 inches in height in the
sight triangle as referenced in Section 94-407.
(2)Fences with a design that results in 70 percent or more of open space from
the grade to the top may be permitted in the required site triangle.
(b)Exceptions.
(1) Fences, walls and hedges up to six feet in height may be placed in a front yard
opposite the street address of a lot abutting an arterial street where:
a. The lot is a double frontage lot; and
b. The lot is not adjacent to an alley which accesses onto the arterial street; and
c.The lot is not a corner lot; and
d. No driveways exit onto the arterial street; and
e. The fence, wall or hedge is set back four or more feet from the front property
line.
(2) Fences, walls and hedges up to six feet in height may be placed in a front yard
opposite the street address of a lot abutting a local or collector street where:
a. The lot is a double frontage lot; and
b. The fence, wall or hedge meets the minimum required setback of the district
the lot is located in.
(c) In all business districts, fences up to eight feet in height may be erected within 20 feet
of any front property line and up to any side or rear property line. Exception: Fences
shall not be erected between a lot line and any areas required to be landscaped. This
Page 2
provision shall not prohibit the screening of outdoor storage of materials and inventory
as required by other sections of this chapter.
Amend Section 94-1. Definitions.
Hedges: a fence or boundary formed by a dense row of shrubs, bushes, or low lying trees.
II.
Any and all ordinances in conflict herewith are hereby repealed.
First Reading:November 28, 2017
Public Hearing and Adoption:December 12, 2017
Published:
CITY OF BROOKINGS, SD
________________________
Keith W. Corbett, Mayor
ATTEST:
________________________
Shari Thornes, City Clerk
Planning Commission
Brookings, South Dakota
September 5th, 2017
OFFICIAL MINUTES
Chairperson Al Heuton called the regular meeting of the City Planning Commission to order
on Tuesday, September 5, 2017, at 5:30 PM in the Chambers Room #310 on the third floor of
the City & County Government Center. Members present were Tanner Aiken, James Drew,
Alan Gregg, Alan Johnson, Lee Ann Pierce, Kristi Tornquist, Eric Rasmussen and Heuton.
Absent was Greg Fargen. Also present were City Planner Staci Bungard, Community
Development Director Mike Struck, City Engineer Jackie Lanning, Mike McClemans, John
Mills, Donald Denure, David Jones, Rick Ribstein, Larry Fjeldos, Kelan Bludorn, Mary and
Orren Erickson, Kathy Larson, John Kratochvil, Tom Becker, Shawn Weber, Josh Westwick,
Stacy Davis, Jolane Tomhave, and others.
Item #8c – The City of Brookings has submitted ordinance amendments to Section 94-398
pertaining to Fences, Walls, and Hedges.
(Tornquist/Aiken) Motion to approve the ordinance amendments.
(Gregg/Rasmussen) Motion to table. All present voted aye. MOTION CARRIED.
OFFICIAL SUMMARY
Item #8c –Staff has reviewed the current ordinance and is proposing amendments to the
ordinance to try to balance neighborhood privacy needs with safety concerns keeping a clear
sight distance triangle. Currently fences, walls and hedges can only be 30 inches in height in
the front yard. Unless it is a slotted fence that is 70 percent open, then the height restriction
is 42 inches in the front yard. Staff is proposing an amendment to allow fences, walls and
hedges to be a maximum height of 4 feet in the front yard. However in the sight distance
triangle, the fence, wall or hedge will need to be 30 inches or less unless it is 70 percent
open then it may be up to 42 inches in height. Heuton clarified that the site triangle includes
the right-of-way intersections and the alley.
Josh Westwick, 502 9th Avenue, received a letter from the City regarding the height of his
hedge. He purchased this house a year ago and had/has never heard of this issue until
recently. He feels that the amendments to the site triangle ordinance should itself take care
of the safety issue. Westwick has spoken with several residents in Brookings they were
never aware of the ordinance or they had not yet been contacted by the City that they needed
to take care of the hedge in their yard. Westwick is in favor of an amendment to this
ordinance. However, he feels that the amendment being proposed for Section 94-407,
Intersection Safety Zones, addresses the safety issues that City Staff are concerned about.
He also feels that the word “hedges” should be removed entirely from Section 94-397 upon
the approval of the amendments to the site triangle ordinance Section 94-407. Westwick
feels that if a resident abides to the site triangle ordinance, then the hedge height in a front
yard becomes irrelevant and should not be a concern to the city unless the hedge is hanging
over the sidewalk. And if a height needs to be attached to the ordinance, then he feels that
the height should be 72 inches.
Westwick feels the current ordinance and even the proposed amendments have a negative
impact on his quality of life. He also feels that the lowering of the hedges will have a negative
impact on his residence. Westwick feels that there are benefits to hedges. They provide
greenery, oxygen, privacy, they reduce noise and provide habitat for birds and other species.
Hedges also provide charm and character to properties in the historic districts.
Westwick was told by city staff that the current ordinance mandates that homeowners are not
allowed to have plants, shrubs or bushes that are more than 30 inches in height in front of
the house line, regardless if it is a hedge or not. He asked if this is currently included in the
hedge ordinance. Struck stated that vegetation of fences, walls and hedges pertains to only
the front yard. So if you have landscaping materials, such as taller plants or grasses, they
are not considered a hedge. Westwick asked if a standalone bush was considered part of a
hedge. Struck stated that they look at the continuous vegetation that could create a solid
structure. Westwick wondered if homeowners are allowed to plant gardens in their front
yards, and if so, is this attached to the hedge ordinance. Struck stated that they are allowed
at this time as long as it doesn’t fit under the definition of a hedge. Westwick questioned
what the definition of a low lying tree was. Struck explained that if someone were to plant
evergreens at a distance that could grow together, this would be considered a hedge.
Westwick feels that the hedges on his property are not a safety concern and he shouldn’t be
required to lower his hedges, other than those that are in the site distance triangle. Heuton
asked if there would be a ‘grandfathering’ process with this. Struck explained that the City
will not be going through a grandfathering process as it would be nearly impossible to keep
track of this. Drew asked Westwick what he thinks would be a good height for hedges.
Westwick feels that 48 inches is too low and that 72 inches would be a good height in areas
of the yard that do not affect the safety of others.
Jolane Tomhave also received a letter from the City. She appreciates the safety side of the
ordinance at the site triangles and near the driveways. She hadn’t thought about the safety
side of it and she appreciates that the city brought this to her attention. She has trimmed the
hedges on her property in the site areas but doesn’t agree with the ordinance for the
remaining hedges. Staci Davis, 510 9th Ave, explained that they have a hedge that goes
along an alley way between her house and the alley. When they purchased the house 4
years ago, they weren’t aware of this ordinance. Since they purchased their property, they
have trimmed and lowered the hedge, but she doesn’t agree with a height restriction to
hedges unless it is in the site triangle. Tomhave stated that there are benefits to having
greenery. The greenery does provide as a buffer from sound and dust. But also provides a
habitat for birds. She would like to know what the benefits to cutting down the hedges would
be. She would like to see that the hedges remain taller, other than in the safety areas.
Heuton has always been concerned that fences, walls, and hedges have always been
lumped together. Tornquist wonders why the ordinance doesn’t state anything regarding
hedges hanging over the sidewalk. Struck explained that this is enforced in a different
ordinance. Pierce is empathetic to the vegetation concerns, but the safety concerns are a
bigger issue to her.
Drew asked where the City Staff came up with the 48 inches height. Struck explained that
City staff completed research on other cities to see what they were using. Struck also noted
that some best practice examples noted that the lower height was a benefit to neighbors as
they could see into their neighbors yard and notice if things were out of the ordinary. He also
noted that hedges should not be removed from the ordinance. Hedges can become a bigger
barrier than a fence or wall. Bungard stated that the 48 inch rule in the front yard is a pretty
common height nationwide. Pierce commented that the ordinance, the way it is written, could
be interpreted differently.
Aiken is concerned about the properties that may have a deep, front yard. These hedges
may not be a safety concern on these lots, and these people may have to remove a large
amount of their hedge and it wouldn’t be necessary.
Tornquist asked how tall a fence or hedge could be if it wasn’t in the front yard. Bungard
explained that as long as the fence or hedge is not in the setback area, then it can be at any
height that the property owner would like.
Planning Commission
Brookings, South Dakota
October 3, 2017
OFFICIAL MINUTES
Chairperson Al Heuton called the regular meeting of the City Planning Commission to order
on Tuesday, October 3, 2017, at 5:30 PM in the Chambers Room #310 on the third floor of
the City & County Government Center. Members present were Tanner Aiken, James Drew,
Greg Fargen, Alan Gregg, Lee Ann Pierce, Kristi Tornquist, Eric Rasmussen and Heuton.
Absent was Alan Johnson. Also present were City Planner Staci Bungard, City Engineer
Jackie Lanning, Ryan McKnight, Jeremy Scott, Blake Hoffman, Nacasius Ujah, Matt
Anderson, Jordan McCaskill, Joseph Mohr, Tanner Nelson, Jacob Rohlik, Ryan Schiller,
Joshua Westwick, Jolynn Tomhave, and others.
Item #6a - The City of Brookings has submitted ordinance amendments to Section 94-398
pertaining to Landscaping.
(Gregg/Aiken) Motion to remove from the table. All in favor.
(Aiken/Fargen) Motion to approve the amendments.
(Rasmussen/Tornquist) Motion to table. All present voted aye. MOTION CARRIED.
OFFICIAL SUMMARY
Item #6b –Bungard explained that these amendments pertain to Fences, Walls and Hedges
in the front yard. Currently there is a 30 inch height maximum in the front yard and the
amendment would increase the height to 48 inches. Additionally, horizontal rail design
language would be removed from this ordinance. So long as these fences, walls, or hedges
do not get into the sight triangle. And fences with a design that would results in 70% or more
opening from the grade to the top would be allowed in the sight triangle. Anything within the
sight triangle would have a height maximum of 30 inches.
Heuton read a letter from Kelly Chromey, a city resident, asking the Planning Commission to
consider increasing the height of hedges to 72 inches. She feels that hedges are
aesthetically pleasing and provide refuge from wind and rain for wildlife. Hedges also play an
important role in minimizing soil loss, regulating water supply and reducing pollution.
Chromey feels that the hedges also prevent pedestrians from encroaching upon people’s
property. And they provide privacy to property owners.
Heuton read a letter from Blake Erickson who is a lifelong resident of Brookings. Erickson
feels that the height of the hedges should be increased to 72 inches. He is a runner and has
always enjoyed the hedges and doesn’t feel that the hedges are a safety concern. Erickson
feels that there are other places in town that have equipment parked along their property
lines and at intersections that obstructs the view for pedestrians. Erickson does agree that
the hedges in the sight triangles should be cut to the 30 inches for safety reasons.
Tornquist read a letter from Jolynn and Thomas Tomhave. The Tomhave’s appreciate that
the commission is considering an increase in the height of hedges, with the exception to the
sight lines. Tomhave’s feel that the hedges provide a much needed barrier from downtown
foot traffic, shade, lush habitat for birds and other species, and beauty to neighborhoods.
Tornquist read letter from Rebecca Kuehl Hybbert who would also like to see the hedge
height be increased to 72 inches. She feels that the higher hedges will help preserve their
properties.
Tornquist also read a letter from Karla Hunter who is in support of the increase to 72 inches
for hedges, as long as street and sidewalk traffic safety is taken in to consideration. 3
reasons that she feels the height should be increased are: 1. Privacy 2. Individuality of
expression and citizen’s rights 3. Greenery is beautiful and provides for biodiversity for
mammals and plentiful greener.
Josh Westwick, 502 9th Ave – He recalls at the end of a previous meeting that City Staff
indicated that if the motion to amend the ordinance amendment, then a discussion could be
held to discuss removing hedges from this ordinance. However, the agenda item tonight
does not reflect any changes from the previous meeting. He is requesting that the
commission again table this item and consider removing the hedges.
Westwick feels that hedges of 72 inches should be allowed on private property for the
following reasons: Hedges provide residential privacy. Hedges reduce noise. Westwick
noted that there is heavy foot traffic by his house during some nights and weekends and the
hedges absorb some of the noise. Hedges provide safety and security. Westwick has a
garden area that is susceptible to vandalism, theft and damage, however he feels that
hedges help keep people on the sidewalk and off of personal property. Hedges provide
charm, character and are aesthetically pleasing. Josh feels that Brookings shouldn’t try to be
like everybody else and change the ordinance to 48 inches, reduction and removal of hedges
will negatively affect the beauty of Brookings. Hedges serve as a natural habitat for birds
butterflies and other species. Hedges have not proven to be a serious safety concern if not
located within the safety zones. Westwick recalled city staff commenting that they haven’t
received complaints regarding hedge heights outside of the safety zones. Westwick feels
that if citizen’s haven’t complained about the hedge height for years, then residents aren’t
concerned if the hedges are 72 inches tall. Reducing the hedge height will impact curb
appeal and decrease property values. This is unfair and is an injustice to him and others with
hedges on their properties.
Westwick found that the American Planners Association stated that if communities are
considering prohibiting or restricting fences, they need to also look at the benefits and
positive values of hedges and fences. Additionally, he has found that there are other cities
that allow for different regulations for fences and hedges. And if the fences and hedges can
be separate in other cities, then they should be able to be separated here also. He would like
the commission to keep the property owners in mind when making a decision on this
ordinance.
Westwick would like to ask that the commission consider an alternative definition to hedge in
the ordinance. Similar details to another city could help define this.
Jolynn Tomhave stated that they have cut down 45 feet of hedge and they wouldn’t want to
cut down anymore. She feels that a 72 inch hedge height should be allowed. She left the
previous Planning Commission meeting thinking that there was new thought and new
movement toward a 72 inch hedge other than in the safety zones.
Pierce feels that Fences, Walls and Hedges being in the same ordinance is a concern. She
isn’t in favor of fences and walls being taller. But a taller hedge does have benefits and they
are aesthetically pleasing. Fargen wondered if they could remain in one ordinance, but break
out the items. Drew feels that a clear definition of “hedge” and “fence” needs to be made.
Heuton doesn’t have an issue with a 72 inch hedge or bush in the front yard. But walls or
fences are a concern to him at 72 inches in height. Aiken also agrees that a 72 inch high
hedge, as long as it doesn’t affect the safety of anyone, isn’t a concern. But a clear definition
of what a hedge is would be beneficial.
Pierce feels that fences and walls could be left at the 30 inch height maximum. Bungard
stated that she has heard concerns from citizen’s that 30 or 36 inches for fences and walls
isn’t high enough and that 48 inches should be allowed. Gregg and Heuton feel that 48
inches is a good height.
Planning Commission
Brookings, South Dakota
November 7, 2017
OFFICIAL MINUTES
Chairperson Al Heuton called the regular meeting of the City Planning Commission to order
on Tuesday, November 7, 2017, at 5:30 PM in the Chambers Room #310 on the third floor of
the City & County Government Center. Members present were Tanner Aiken, James Drew,
Greg Fargen, Alan Gregg, Alan Johnson, Lee Ann Pierce, Kristi Tornquist, Eric Rasmussen
and Heuton. Also present were Community Development Director Mike Struck, City Engineer
Jackie Lanning, David Jones, Joshua Westwick, and others.
Item #5c – The City of Brookings has submitted ordinance amendments to Section 94-398
pertaining to Fences, Walls, and Hedges.
(Rasmussen/Drew) Motion to remove from the table.
(Rasmussen/Drew) Motion to approve the ordinance amendments. Heuton voted no. All
others voted yes. MOTION CARRIED.
OFFICIAL SUMMARY
Item #5c –Heuton received a letter in favor of the 6 foot hedge. Josh Westwick spoke in
favor of the 48 inch hedge height. He recognizes that the 48 inch height can be sufficient.
He would like the Commission to approve the 48 inches and not keep it at 30 inches. He also
would like the Commission to better define the hedge definition.
Rasmussen called the question and there was no further discussion.
If you require assistance, alternative formats and/or accessible locations consistent with the Americans with Disabilities Act,
please contact the City ADA Coordinator at 692-6281 at least 48 hours prior to the meeting.
Published ______ time(s) at an approximate cost of $ _____________.
NOTICE OF HEARING
UPON A CHANGE IN ZONE REGULATIONS
NOTICE IS HEREBY GIVEN That the City of Brookings has submitted ordinance
amendments to Section 94-398, pertaining to Fences, Walls, and Hedges.
NOTICE IS FURTHER GIVEN That said request will be acted on by the City Planning
Commission at 5:30 PM on Tuesday, September 5, 2017, in the Chambers Room on the
third floor of the Brookings City and County Government Center at 520 Third Street,
Brookings, South Dakota. Any action taken by the City Planning Commission is a
recommendation to the City Council.
Any person interested may appear and be heard in this matter.
Dated this 25th day of August, 2017.
____________________________
Staci Bungard
City Planner
Municipality Regulations for Fences, Walls, Hedges
Sioux Falls 4’ fence in front yard;no more than 30% solid design if within 30’ from intersection along property lines
Aberdeen 3’ for hedges within 50’ of intersection at curbline & 3’ for solid fence within 35’ of intersection and 15’
for driveway at property lines
Rapid City 4’ for fences in front yard; fences and hedges not more than 2.5’in sight triangle
Brandon 4’ fence in front yard
Huron 4’ fence in front yard; no fence or plant material taller than 1’ in sight triangle (12’ for streets/alleys & 8’
for driveways); Hedges in boulevard /parking areas not more than 30” measured from street gutter level
Pierre 48” fence in front yard; fences, walls and hedges at 30” in sight triangle (25’ for streets and 15’ for
intersection of street and alley measured at property line)
Yankton 3’ for fences, walls, structure, planting of foliage with sight triangle (30’ from curbline of intersecting
streets)
Mankato, MN 4’ fence in front yard; fences, walls, shrubbery, or any visual obstruction shall not be over 30” in sight
triangle as measured 25’ from right-of-way line
Madison, WI 4’ for fences in front yard; nothing between 30”and 10’ in sight triangle (25’ for streets and 10’ for alleys
and driveways measured at property line); Fences 66% open are exempt
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:ORD 17-027,Version:1
Introduction and First Reading on Ordinance 17-027, an Ordinance amending Section 42-102 of the
Code of Ordinances of the City of Brookings, SD and pertaining to Transfers to the Brookings Health
System Investment Authority. Second Reading: December 12, 2017.
Summary:
Brookings Health System (BHS) is requesting a change in the City Investment Policy whereby a
newly-created board comprising of existing BHS board members and the CEO, be authorized to
exclusively invest BHS Funds. Currently, all city funds are aggregated to include City, BMU, and
BHS and invested by the City Finance Director; usually on a competitive placement process. Even
with this process, BHS and BMU have always had access to their funds to meet their cash flow or
expenditure needs.
Background:
State Law places restrictions on the Investment Authority of Public Funds whereby such investment
options are generally more conservative. As a municipal hospital, BHS is currently subject to such
restrictions. This enabling authorization would allow BHS, with City approval, to establish an
Investment Board, specifically a non-profit corporation, to make investments outside these state
restrictions. BHS believes such restrictions impedes their ability to leverage investment opportunities
often associated with non-public hospitals.
Attachments:
Ordinance
City of Brookings Printed on 11/21/2017Page 1 of 1
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Ordinance 17-027
An Ordinance Amending Section 42-102 of the Code of Ordinances of the
City of Brookings, South Dakota and pertaining to transfers to the Brookings
Health System Investment Authority
Be It Ordained and Enacted by the Council of the City of Brookings, State of South
Dakota, as follows:
I.
Section 1. That Section 42-102 of the Code of Ordinances of the City of Brookings be
amended in its entirety to read as follows:
Section 42-102. Payment of warrants and transfers.
All expenditures of the Brookings Health System shall be approved by the board of
trustees, and warrants for payment of such expenditures shall be drawn on the
Brookings Health System funds.
All transfers of funds or revenues not needed for current operations derived from the
operation of the Brookings Health System to the Brookings Health System Investment
Authority shall be approved by the board of trustees, and such transfers shall be drawn
on the Brookings Health System funds.
II.
Any or all ordinances in conflict herewith are hereby repealed.
First Reading:November 28, 2017
Second Reading:December 12, 2017
Published:
CITY OF BROOKINGS, SD
Keith W. Corbett, Mayor
ATTEST:
Shari Thornes, City Clerk
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:ORD 17-028,Version:1
Introduction and First Reading on Ordinance 17-028, an Ordinance amending Chapter 2, Article V,
Division 4 pertaining to appointments to the Swiftel Center Advisory Board. Second Reading:
December 12, 2017.
Summary:
Brookings County has approached the City of Brookings and inquired about a change in the
appointment process for membership of the Swiftel Center Advisory Board. The current appointment
process provides for two appointees by the County Board because of the County-owned County
Resource Center (CRC) being attached to the Swiftel Center and an Intergovernmental Operating
Agreement. Now that the City has acquired ownership of the CRC, the County Board does not
believe this appointment process is still necessary. As such, attached is an Ordinance modifying the
appointment process to delete the appointments made by the County and have them made by the
City.
One such appointment expires the end of 2017 and the second expires the end of 2018. It is
recommended to have the City appoint the expiring 2017 member and let the expiring 2018 member
continue to serve out the current term since that appointment pre-dates this amendment.
Fiscal Impact:
None
Attachments:
Ordinance - clean copy
Ordinance - marked copy
City of Brookings Printed on 11/21/2017Page 1 of 1
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Ordinance 17-028
An Ordinance Amending Division 4 of Chapter 2 of the Ordinances of the
City of Brookings and Pertaining to the Swiftel Center Advisory Committee
Be It Ordained and Enacted by the Council of the City of Brookings, State of South
Dakota, as follows:
I.
That Sections 2-180 through 2-187 of the Ordinances of the City of Brookings be
amended to read as follows:
Sec. 2-180. - Established.
The city has established a Swiftel Center Advisory Committee to act in an advisory
capacity to the city council concerning the Swiftel Center.
Sec. 2-181. - Composition, appointment and initial terms.
The Swiftel Center Advisory Committee shall be composed of seven members selected
as follows: six persons shall be appointed by the mayor with advice and consent of the
city council, one of whom shall be affiliated with South Dakota State University; and one
person shall be appointed by the mayor with the advice and consent of the city council
based upon the recommendation of the Brookings Area Chamber of Commerce Board
of Directors. In addition, a member of the city council of the City of Brookings may be
appointed as a non-voting liaison to the Swiftel Center Advisory Committee.
Sec. 2-182. - Compensation; terms, vacancies.
(a) All members shall serve for terms of three years without compensation.
(b) If a member resigns or is disqualified prior to the end of their term, the mayor, with
the advice and consent of the city council or Brookings Area Chamber of Commerce, as
the case may be, shall appoint a new member to complete the resigning or disqualified
member's term.
(c) If a member is absent more than 50 percent of the meetings annually without
authorization of the committee, they shall automatically be disqualified from serving on
the committee and a replacement shall be appointed.
Sec. 2-183. - Quorum, action.
A majority of the members of the Swiftel Center Advisory Committee shall constitute a
quorum, and all official action of the Swiftel Center Advisory Committee shall be
approved by a majority of members of the Swiftel Center Advisory Committee.
Sec. 2-184. - Meetings.
The Swiftel Center Advisory Committee shall set and hold meetings at a time and place
as designated by the Swiftel Center Advisory Committee. All meetings shall be open to
the public and shall comply with City open meetings policies. Notice of all meetings
shall comply with all State and City open meeting requirements and said notice shall not
be less than 72 hours before a meeting. The chair may call for a special meeting or
may cancel a meeting due to lack of business or quorum.
Sec. 2-185. - Officers.
The Swiftel Center Advisory Committee shall annually elect from its members a
chairperson and vice-chairperson, each of whom shall hold their office respectively for
one year and until their successors have been elected.
Sec. 2-186. - Duties of the chairperson.
The chairperson shall preside over all meetings and, as appropriate, make committee or
special assignment appointments. The chairperson shall be kept advised of the general
affairs of the Swiftel Center and monitor the implementation of resolutions and policies
with appropriate procedures. The chairperson shall have the other usual powers and
duties customarily vested in the office of chairperson and shall perform such duties as
may be assigned by the committee.
Sec. 2-187. - General authority.
The committee shall act only in an advisory capacity to the city council, however it shall,
in particular, advise the city concerning marketing, operational issues and management
of the Swiftel Center, and in particular, shall advise and assist the city in the
performance of contracts between the City of Brookings and the firm managing the
Swiftel Center.
Secs. 2-188-2-195. - Reserved.
II.
Any or all ordinances in conflict herewith are hereby repealed.
First Reading:November 28, 2017
Second Reading and Adoption:December 12, 2017
Published:
CITY OF BROOKINGS, SD
Keith W. Corbett, Mayor
ATTEST:
Shari Thornes, City Clerk
Ordinance 17-028
An Ordinance Amending Division 4 of Chapter 2 of the Ordinances of the
City of Brookings and Pertaining to the Swiftel Center Advisory Committee
Be It Ordained and Enacted by the Council of the City of Brookings, State of South
Dakota, as follows:
I.
That Sections 2-180 through 2-187 of the Ordinances of the City of Brookings be
amended to read as follows:
Sec. 2-180. - Established.
The city has established a Swiftel Center Advisory Committee to act in an advisory
capacity to the city council concerning the Swiftel Center.
Sec. 2-181. - Composition, appointment and initial terms.
The Swiftel Center Advisory Committee shall be composed of seven members selected
as follows: six four persons shall be appointed by the mayor with advice and consent of
the city council, one of whom shall be affiliated with South Dakota State University; two
persons shall be appointed by the Brookings County Commission; and one person shall
be appointed by the mayor with the advice and consent of the city council based upon
the recommendation of the Brookings Area Chamber of Commerce Board of Directors.
In addition, a member of the city council of the City of Brookings and the Brookings
County Commission may each appoint a representative may be appointed as a non-
voting liaison to the Swiftel Center Advisory Committee.
Sec. 2-182. - Compensation; terms, vacancies.
(a) All members shall serve for terms of three years without compensation.
(b) If a member resigns or is disqualified prior to the end of their term, the mayor, with
the advice and consent of the city council or the county commission or Brookings Area
Chamber of Commerce, as the case may be, shall appoint a new member to complete
the resigning or disqualified member's term.
(c) If a member is absent more than 50 percent of the meetings annually without
authorization of the committee, they shall automatically be disqualified from serving on
the committee and a replacement shall be appointed.
Sec. 2-183. - Quorum, action.
A majority of the members of the Swiftel Center Advisory Committee shall constitute a
quorum, and all official action of the Swiftel Center Advisory Committee shall be
approved by a majority of members of the Swiftel Center Advisory Committee.
Sec. 2-184. - Meetings.
The Swiftel Center Advisory Committee shall set and hold meetings at a time and place
as designated by the Swiftel Center Advisory Committee. Special meetings may be
called at any time by the chairperson or by a majority of the Swiftel Center Advisory
Committee by giving 24 hours advance notice to the public and other members of the
Committee. Notice of a special meeting shall be given a minimum of 24 hours prior to
meeting time, if possible, and shall state the reason for requesting the special meeting.
Only business stated as the reason for calling a special meeting may be transacted. All
meetings shall be open to the public and shall comply with City open meetings policies.
Notice of all meetings shall comply with all State and City open meeting requirements
and said notice shall not be less than 72 hours before a meeting. The chair may call for
a special meeting or may cancel a meeting due to lack of business or quorum.
Sec. 2-185. - Officers.
The Swiftel Center Advisory Committee shall annually elect from its members a
chairperson and vice-chairperson, each of whom shall hold their office respectively for
one year and until their successors have been elected.
Sec. 2-186. - Duties of the chairperson.
The chairperson shall preside over all meetings and, as appropriate, make committee or
special assignment appointments. The chairperson shall be kept advised of the general
affairs of the Swiftel Center and monitor the implementation of resolutions and policies
with appropriate procedures. The chairperson shall have the other usual powers and
duties customarily vested in the office of chairperson and shall perform such duties as
may be assigned by the committee.
Sec. 2-187. - General authority.
The committee shall act only in an advisory capacity to the city council, however it shall,
in particular, advise the city concerning marketing, operational issues and management
of the Swiftel Center, and in particular, shall advise and assist the city in the
performance of contracts between the City of Brookings and County of Brookings, and
between the City of Brookings and the firm managing the Swiftel Center and which
concern the Swiftel Center.
Secs. 2-188-2-195. - Reserved.
II.
Any or all ordinances in conflict herewith are hereby repealed.
First Reading:November 28, 2017
Second Reading and Adoption:December 12, 2017
Published:
CITY OF BROOKINGS, SD
Keith w. Corbett, Mayor
ATTEST:
Shari Thornes, City Clerk
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:ORD 17-029,Version:1
Introduction and First Reading on Ordinance 17-029, an Ordinance amending Chapter 22 of the
Code of Ordinances of the City of Brookings and providing Procedures for the Licensing of
Residential Contractors in the City of Brookings, SD. Second Reading: December 12, 2017.
Summary:
The City Engineering Department is initiating a Residential Contractor’s License requirement for
contractors who perform residential construction in the Brookings City Limits and the Joint-
Jurisdictional area. The attached Ordinance 17-029 amends Chapter 22 and describes the specific
requirements of the program, which would go into effect in January 2018 if adopted.
Background:
Representatives of the Brookings Regional Builders Association approached City Engineering staff to
discuss their support of a possible residential contractor license program. City staff researched the
larger municipalities in South Dakota and found many of them had a contractors licensing program in
place (see attached chart).
City staff is in support of the residential contractor’s license, which will have a positive impact on the
City’s ISO rating (Insurance Service Office) for insurance rates, it will ensure that all contractors
working in the City and Joint Jurisdictional Area will have liability insurance and workers
compensation insurance, and will create a line of communication between the City and local
contractors.
Staff and the City Attorney drafted a draft ordinance for contractor’s to review. The residential
contractors who have had permits with the City of Brookings were invited to a contractor’s round
table meeting which was held on Thursday, November 16, 2017, and a draft ordinance was included
with the mailing. There was a good discussion about the program with City staff and 14 local
residential contracting firms in attendance.
Staff incorporated modifications and clarifications into the ordinance based on the comments from
the contractors. The Residential Contractor’s License is summarized as follows:
A Residential Contractor’s License is required for any residential builder contracting work performed
in the City’s jurisdiction that also requires a building permit. This work includes, but is not limited to,
concrete work, masonry, carpentry, all building trade contracting including roofing, remodeling, siding,
rough framing; all phases of new construction, alteration, additions; and repair or demolition of
structures. Contractors who perform work that does not require a building permit would not need a
residential contractor’s license, such as sheet rock, painting, flooring, etc.
The following are exempt from the licensing requirements:
a.Employees of a person licensed in accordance with this chapter when they are under
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File #:ORD 17-029,Version:1
the direction and control of a person or company who holds a residential Contractor’s
license issued by the City.
b.Persons engaged in the following construction trades: mechanical, plumbing, and
electrical, when that person is performing work consistent with that building trade and
applicable City or State license.
c.A dwelling owner for work to be done on their property which he or she occupies as his
or her own home, or will occupy as his or her own home, and when the property owner
is acting as his or her own contractor. A dwelling owner may not build more than one (1)
single family dwelling in a three (3) year period without obtaining a contractor’s license,
unless they occupy the dwelling, a minimum of one (1) year after the final inspection is
approved.
d.A landlord for work to be done on his or her property when the landlord is acting as his
or her own contractor.
e.A residential developer for work to be done on their property when the residential
developer has hired licensed contractors to complete all permitted work.
Contractors will be required to supply Liability Insurance for a minimum amount of five hundred
thousand dollars ($500,000) for each occurrence, worker’s compensation insurance on their
employees if applicable, and proof of their South Dakota excise tax number.
Staff is also proposing to provide a reference manual, titled: “DeWalt Residential Construction Codes”
to all residential contractors applying for the license. The manual is a helpful guide for residential
construction code requirements and provides an educational component for the program, and will be
provided in the year that code changes are adopted. Staff will also perform educational meetings for
the contractors, but the ordinance does not make the educational meetings mandatory.
The attached Ordinance describes the specifics about the licensing program.
Fiscal Impact:
The Engineering Department will receive revenue from the license fees, which will offset education,
reference materials, mailings, and staff time.
Recommendation:
Staff recommends approval.
Attachments:
Ordinance
Chart
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Ordinance 17-029
AN ORDINANCE AMENDING CHAPTER 22 OF THE CODE OF ORDINANCES OF
THE CITY OF BROOKINGS AND PROVIDING PROCEDURES FOR THE LICENSING OF
RESIDENTIAL CONTRACTORS IN THE CITY OF BROOKINGS.
BE IT ORDAINED by the City of Brookings that Chapter 22 of the Code of Ordinances of the
City of Brookings be amended to include the following article:
I.
Article VIII. Residential Contractor’s License
Section 22-520. – Definitions.
The following words, terms and phrases, when used in this Article VIII, shall be
defined, except where the context clearly indicates a different meaning, as follows:
City: The City of Brookings, South Dakota.
Employee:a person whose compensation for construction work is reported by the
employer on an Internal Revenue Service W-2 Form, and who is also otherwise
considered an employee under South Dakota law.
Residential Building Contracting:the enlargement, alteration, repair, improvement,
conversion or new construction of any 1 or 2 family dwelling, or any accessory
structure associated with a 1 or 2 family dwelling.
Residential Building Contractor:a sole proprietorship, partnership, firm, limited liability
company or corporation which, for compensation, undertakes or offers to undertake
residential building contracting.
Section 22-521: License Required
1. It is unlawful for any person or persons representing or operating as a sole
proprietorship, partnership, firm, limited liability company or corporation, to conduct,
carry on or engage in the business of residential contracting work or acting in the
capacity of a residential contractor without having first been issued a valid residential
contractor’s license by the city. For the purposes of this section, any residential
building contracting work performed within the licensing jurisdiction of the City that
requires a building permit would also require a residential contractor’s license. This
work includes, but is not limited to concrete work, masonry, carpentry, all building
trade contracting including roofing, remodeling, siding, rough framing; all phases of
new construction, alteration, additions; repair or demolition of structures; and excluding
those activities exempted by the following section.
2. The following are exempt from the licensing requirements:
a. Employees of a person licensed in accordance with this chapter when they are
under the direction and control of a person or company who holds a residential
contractor’s license issued by the City.
b. Persons engaged in the following construction trades: mechanical, plumbing
and electrical, when that person is performing work consistent with that building
trade and applicable City or State license.
c. A dwelling owner for work to be done on their property which they occupy as
their own home or will occupy as his or her own home and when the property
owner is acting as their own contractor. A dwelling owner may not build more
than one (1) single family dwelling in a three (3) year period without obtaining a
residential contractor’s license, unless they occupy the dwelling a minimum
period of one (1) year after the final inspection is approved.
d. A landlord for work to be done on the landlord’s property when the landlord is
acting as their own contractor.
e. A residential developer for work to be done on their property when the
residential developer has hired licensed contractors to complete all permitted
work.
Section 22-522: License Application Procedure
A residential contractor license shall be issued to every proprietorship, partnership, firm,
limited liability company or corporation who makes application for the license, pays the
required application fee and meets the requirements as stated in this chapter. The office of
the City Clerk is authorized to issue a residential contractor’s license provided the provisions
of this chapter are satisfied. The City Clerk may refer any licensing issues to the City
Manager for review prior to approval or rejection.
(a)Person or persons responsible for license. Each residential contractor license issued
to a sole proprietorship, partnership, firm, limited liability company or corporation shall
be the responsibility of the owner or manager of the sole proprietorship, partnership,
firm, limited liability company or corporation.
(b)License use restricted. No licensed residential building contractor shall knowingly allow
their name to be used by any other person directly or indirectly, either to obtain a
residential contractor license or to perform residential building contracting which is not
conducted by the licensed residential contractor or under the supervision of the
licensed residential contractor.
(c)License term renewal. All licenses issued under the provisions of this chapter shall
expire on December 31 of every year.
(d)Liability Insurance. Liability insurance shall be required of every residential contractor.
Every applicant for a residential contractor’s license shall present to the Building
Services Administrator for their review a valid certificate of insurance at the time of
application. It shall be the duty of every residential contractor to continually maintain
valid liability insurance. The minimum required general liability insurance shall be Five
Hundred Thousand Dollars ($500,000) for each occurrence.
(e)Worker’s compensation insurance. In accordance with South Dakota State law, proof
of worker’s compensation insurance shall be verified prior to issuance of a residential
contractor’s license.
(f)Proof of excise tax number. Applicants for a residential contractor’s license shall be
required to supply their excise tax number.
Section 22-523: Fees
The initial fee, as well as the annual renewal fee for a residential contractor’s license shall
be established by resolution of the City Council. All licenses shall be effective when
issued and shall terminate December 31st in the year for which issued. The license fee
charged shall be paid on the basis of a full year. However, if the license is not renewed
prior to the expiration date and the contractor has a job in progress, the license fee will be
double the fee established by resolution of the City Council.
Section 22-524: Enforcement
1. Any person who commences any residential building work for which a permit is
required by this code without first having obtained a license shall, if subsequently
permitted to obtain a permit, pay an additional license fee as established by the City
Council. This provision shall not, however, apply to emergency work when it is proven
to the satisfaction of the City Clerk that the work was urgently necessary and that it
was not practical to obtain a license before the commencement of the work.
2. The City of Brookings may suspend, revoke, refuse to issue or renew a license in the
following events:
a) In its discretion, it is in the public interest; and
b) Based upon substantial evidence, the applicant or licensee:
c) Has filed an application for a license that is incomplete in any material respect
or contains false or misleading statements; or
d) Has engaged in any fraudulent, deceptive or dishonest act or practice; or
e) Has violated any applicable provisions of the building codes, city ordinances,
rule or regulation or State law.
f) Fails to file with the City the required certificates of insurance or hold a valid
certificate of insurance.
Section 22-525: Notice of Violation
1. The building official may suspend or revoke any license if obtained through
nondisclosure, misstatement or misrepresentation of a material fact or if a licensee
violates any of the provisions of this article.
2. Before a license may be suspended or revoked, the licensee shall receive notice in
writing enumerating the charges against it and shall be entitled to a hearing by the
Board of Appeals.
3. Should any licensee or applicant for a license under this chapter be aggrieved by the
action of the building official, they may, within ten (10) days of the decision, appeal
such decision by filing a written request for such appeal with the City Manager for
review by the Board of Appeals. Upon review, the Board of Appeals may affirm, modify
or reverse the action of the building official and may order for good cause the issuance
of a license. The decision of the Board of Appeals shall be based upon the evidence
produced at the hearing. A person whose license has been revoked shall not be
permitted to apply until one year after the date of revocation.
4. A licensed contractor who is the subject of an investigation shall cooperate fully with
the City in its investigations. Cooperation includes, but is not limited to:
(a)Responding fully and promptly to questions;
(b)Providing copies of records relative to the matter under investigation; and
(c)Appearing at conferences or hearings as scheduled.
Section 22-526 – 22-535: Reserved
II.
Any or all ordinances in conflict herewith are hereby repealed.
FIRST READING:
SECOND READING:
PUBLISHED:
CITY OF BROOKINGS
_______________________________
Keith Corbett, Mayor
ATTEST:
__________________________________
Shari Thornes, City Clerk
Website
Res Comm Plumbing Electrical HVAC Building Plumbing Electrical HVAC
Sioux Falls 171,544 x x x x x x x x x *Testing
Rapid City 73,569 x x x x x x x x x *Testing
Aberdeen 28,102 x x x x x x x *Testing
Brookings 23,657 x x
Watertown 22,073 x x x
Mitchell 15,669 x x x
Yankton 14,557 x x x x
Pierre 14,002 x x x x x x x
Huron 13,313 x
Spearfish 11,283 x x x x x x x
Vermillion 10,844 x x
Brandon 9,701 x x x x
Key: requires residential licensing
Fees:
Sioux Falls varies according to license type
Rapid City varies according to license type
Aberdeen $150 initial fee with $100 renewal fee every 3 years. All other license are renewed every year (sewer, sidewalk, sign)
Watertown $60/year
Pierre $125/year
Spearfish $75/year
Brandon $100/year testing Fee $75
Building Contractor Mechanical, Electrical, Plumbing
SD Municipalities that Require City Licensing
Required Permits
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:ORD 17-030,Version:1
Introduction and First Reading on Ordinance 17-030, an Ordinance authorizing Supplemental
Appropriation #3 to the 2017 Budget. Second Reading: December 12, 2017.
Summary:
This ordinance will amend the 2017 Budget.
Background:
General Fund amendments include recognizing unanticipated grants and donations, purchases made
with grant and donation revenue, adjustments due to change in personal, adjustments to reflect
savings on various projects, and adjustments to line items for Aquatic Center expenditures and Ice
arena utilities.
75% Sales and Use Tax amendments include recognizing receipt of STP grant funds, an increase of
transfer in of TIF 6&7 Debt Service Fund revenue in repayment of City funds used for projects. In
addition, the amendment includes the first payment of the PAC2 loan and authorization of spending
funds transferred from the general fund in a previous amendment to be used to the Carnegie
remodel.
3rd B Sales Tax amendment allows for funds to be spent to begin the remodel of the Community
Resource Center purchased in 2017. Will be using existing cash for project.
TIF #6 (Digester) and #7 (S. Main) Debt Service Fund amendments authorize transferring
accumulated funds to 75% Sales and Use tax as repayment for funds used in the projects. In
addition, it includes funds to be transferred from TIF #6 Digester Debt Service to Digester Capital
project fund to complete payments of the project.
Digester Capital Project fund amendment allows funds to pay the final costs of the project.
Street Shop Capital project amendments allow closing of the fund and transferring remaining cash
back to 75% Sales and Use Tax.
Airport fund amendments recognize additional grant and reimbursed revenue in addition to adjusting
expense for change in staff and Council approval to use $100,000 budgeted in 2018 for design to be
completed in 2017
Fiscal Impact:
· General Fund: Increase in revenue of $49,030 and decrease in expenditure of $53,909
· 75%Sales and use Tax: Increase in revenue of $1,326,505 and increase in expenditure of
$144,546.
·3rd B Sales Tax - increase in expenditure of $20,000.
·TIF #6 Debt Service - Digester: Increase in expenditures $276,000
City of Brookings Printed on 11/21/2017Page 1 of 2
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File #:ORD 17-030,Version:1
·TIF #7 Debt Service - S. Main - Increase in expenditures $40,000
·Bel Digester Capital Project - Increase in revenue and expenditures of $76,000
·Street Shop Capital Project - Increase in expenditures of $35,117
·Airport: Increase in revenue $532,400, increase in expenses $109,610
Attachments:
Ordinance
City of Brookings Printed on 11/21/2017Page 2 of 2
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ORDINANCE NO. 17-030
An Ordinance Authorizing Supplemental Appropriation #3 To The 2017 Budget
Be It Ordained by the City of Brookings, South Dakota:
WHEREAS STATE LAW (SDCL 9-21-7) AND THE CITY CHARTER (4.06 (a) permit
supplemental appropriations provided there are sufficient funds and revenues available
to pay the appropriation when it becomes due,
Now, Therefore, Be It Resolved by the City Council that the City Manager be
authorized to make the following budget adjustments to the 2017 budget:
Change
Increase
General Fund (Decrease) Reason
101-421-4-334-09 Grants 21,650.00 Money received from BHS for 11 AED's for patrol vehicles
101-421-4-446-10 Donations 6,565.00 Safety Town received donation for new trailer
101-455-4-334-10 Grants 20,815.00 Money received from Larson grant
Total Change in General Fund Revenues 49,030.00
General Fund Expenditures
101-418-5-422-03 Consulting/Engineering (80,000.00) Actual cost for comp plan less than budgeted
101-419-5-101-00 Regular Pay 4,000.00 Adjusted due to change in personnel
101-419-5-101-01 Temporary Pay (9,500.00) Adjusted due to change in personnel
101-419-5-421-00 Insurance (3,450.00) Adjusted due to change in personnel
101-419-5-425-02 Maintenance Motor Vehicles 2,500.00 Add topper and flashing lights to replacement pickup
101-419-5-427-01 Travel and Lodging 2,000.00 Send new employees to additional training
101-419-5-427-02 Registration & Training 1,000.00 Send new employees to additional training
101-419-5-920-00 Furniture & Equipment 4,005.00 To reflect actual cost of map conversion proj with BMU
101-419-5-930-00 Machinery & Auto Equipment 700.00 Adjust to actual expense of replacement pickup
101-421-5-856-21 Safety Town 4,300.00 To reflect cost of new safety town trailer
101-421-5-950-01 Other Capital 22,667.00 Money received from BHS for 11 AED's for patrol vehicles
101-449-5-426-15 Chemicals 32,000.00 To reflect the actual cost of chemicals with new system
101-449-5-911-00 Buildings & Structure (32,000.00) To reflect savings from the pool painting project
101-452-5-425-04 Maintenance Equipment 4,600.00 Unexpected repair for Tractor
101-452-5-999-47 Capital Special Projects (44,546.00) Move funds budgeted for Carnegie project to fund 213
101-453-5-426-03 General Supplies 5,000.00 Adjust for additional glycol
101-453-5-428-02 Electric & Water 20,000.00 To reflect the actual cost of utilities
101-453-5-428-03 Heat (8,000.00) To reflect the actual cost of utilities
101-455-5-367-01 Grant expense 20,815.00 To reflect Larson grant expenditures
Total change in GF Expenditures (53,909.00)
75% Sales & Use Tax
213-000-4-334-02 STP Grant 1,051,388.00 To reflect receipt of Surface Transportation Grant funds
213-000-6-700-03 Transfer in TIF Rev 240,000.00 Transfer accumulated TIF 6 & 7 tax revenue
213-000-6-700-17 Transfer In 35,117.00 Transfer in from Street Shop project to close out fund
Total Change in 75% Sales Tax Revenue 1,326,505.00
213-000-5-856-81 SDSU PACII 100,000.00 To record 2017 payment on loan
213-000-5-999-47 Special Projects 44,546.00 Carnegie funds transferred from 101
Total change in 75% tax Expenditures 144,546.00
3rd B Sales Tax
284-000-5-999-47 Special Project (CRC Remodel) 20,000.00 To budget for remodel of County Resource Center purchased in 17
Total change in 3rd Penny Sales Tax Expenditures 20,000.00
TIF#6 Debt Service Digester
319-000-7-899-17 Transfer out Digester 76,000.00 Transfer accumulated funds to complete project
319-000-7-899-20 transfer Out 75% S&U 200,000.00 Transfer accumulated TIF revenue to repay funding from 213
Total change in TIF # 6 Expenditures 276,000.00
TIF#7 Debt Service S. Main
320-000-7-899-20 transfer Out 75% S&U 40,000.00 Transfer accumulated TIF revenue to repay funding from 213
Total change in TIF # 6 Expenditures 40,000.00
Bel Digester Capital Project TIF #6
522-000-6-700-00 Transfer in Debt Service 76,000.00 Transfer in funds to complete project
Total Change in Revenue 76,000.00
522-000-5-422-03 Project Expense 76,000.00 Budget funds to complete project
Total Change in Expenditure 76,000.00
Street Shop Capital Project Fund
530-000-7-899-05 Transfer out 35,117.00 Transfer out remaining funds back to 213 to close project fund
Total Change in Expenditure 35,117.00
Airport Fund
606-000-4-334-09 Grants 146,260.00 Grant money received to close out projects
606-000-4-441-08 Reimbursed Expense 362,560.00 Reimbursement from FAA for Navaid project
606-000-4-848-12 Rentals 11,340.00 Reflect actual revenue
606-000-4-861-09 Miscellaneous 12,240.00 Reflect actual revenue
Total Change in Revenue 532,400.00
606-000-5-123-00 Group Insurance 4,390.00 Change in airport staff
606-000-5-427-01 Travel & Lodging 1,500.00 Training for new staff
606-000-5-427-02 Registration & Training 1,000.00 Training for new staff
606-000-5-930-00 Machinery & Auto 2,720.00 Actual cost of cat purchase and paint striper
606-000-5-970-00 Runway Improvements 100,000.00 Council approved spending part of 2018 Bud on design in 2017
Total Change in Expenses 109,610.00
All Ordinances or parts of Ordinances in conflict herewith are hereby repealed.
First Reading: November 28, 2017
Second Reading: December 12, 2017
Published:
CITY OF BROOKINGS
_________________________
Keith Corbett, Mayor
ATTEST
____________________________
Shari Thornes, City Clerk
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:ORD 17-024,Version:2
Public Hearing and Action on Ordinance 17-024, an Ordinance rezoning Lot 1A of Lot 1, Block 1,
Except the North 41 feet thereof, Mayland’s First Addition, also known as 520 22nd Avenue, from a
Business B-4 Highway District to a Business B-2 District.
Summary:
The applicant is requesting to rezone a parcel of land for any future development improvements or to
fully reconstruct the building.
Background:
The property is located at the northeast corner of 22nd Avenue and Minnesota Drive. Dairy Queen
currently occupies the 27,322 square foot parcel. The property is nonconforming in the B-4 District
as the lot area does not meet the 40,000 square foot minimum and the building does not meet the
setbacks. The lot and existing building location will meet the size and setback requirements in the B-
2 District.
The area contains a mix of commercial uses. The B-4 District is intended for larger lot commercial
development primarily along 6th Street near the Interstate and near the Highway 14 Bypass. The B-2
District is designed to provide a variety of commercial uses that are less intensive than some uses
allowed in the B-4 District.
Findings of Fact:
1. The Comprehensive Plan is used for guidance when reviewing a rezoning request.
The Comprehensive Plan provides the following guidance:
a.The area is shown for business/commercial uses.
b.Generally supports rezoning to bring parcels into zoning conformance where
appropriate.
Planning Commission Recommendation:
The Planning Commission voted 8-0 to recommend approval of the rezoning request.
Attachments:
Ordinance
Notice
10-3-2017 Planning Commission Minutes
Zoning Area Map
Rezoning Map
City of Brookings Printed on 11/17/2017Page 1 of 1
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Ordinance 17-024
An Ordinance to change the Zoning within the City of Brookings
Be It Ordained by the City of Brookings, SD:
Section 1. That the real estate situated in the City of Brookings, County of Brookings, State
of South Dakota, described as follows, to-wit:
Lot 1A of Lot 1, Block 1, Except the North 41 feet thereof, Mayland’s First Addition,
also known as 520 22nd Avenue, be and the same is hereby reclassified from a
Business B-4 Highway District to a Business B-2 District.
In accordance with Section 94-7 of Article I of Ordinance 17-13 of the Code of Ordinances
of Brookings, South Dakota, as said districts are more fully set forth and described in
Articles III and IV, Chapter 94 of Ordinance No. 17-13 of the City of Brookings, South
Dakota.
Section 2. The permitted use of the property heretofore described be and the same is
hereby altered and changed in accordance herewith pursuant to said Ordinance No. 17-13
of the City of Brookings, South Dakota.
Section 3. All sections and ordinances in conflict herewith are hereby repealed.
First Reading:October 24, 2017
Second Reading and Adoption:November 28, 2017
Published:December 1, 2017
CITY OF BROOKINGS
________________________
Keith W. Corbett, Mayor
ATTEST:
_________________________
Shari Thornes, City Clerk
If you require assistance, alternative formats and/or accessible locations consistent with the Americans with Disabilities Act,
please contact the City ADA Coordinator at 692-6281 at least 48 hours prior to the meeting.
Published ______ time(s) at an approximate cost of $ _____________.
NOTICE OF HEARING
UPON PETITION TO REZONE
NOTICE IS HEREBY GIVEN That Frauenshuh Hospitality Group of Minnesota,
LLC submitted a petition to rezone the following described real estate in the City of
Brookings and Brookings County, South Dakota:
Lot 1A of Lot 1, Block 1, Except the North 41 feet thereof, Mayland’s First
Addition, also known as 520 22nd Avenue, from a Business B-4 Highway
District to a Business B-2 District.
NOTICE IS FURTHER GIVEN That said request will be acted on by the City
Planning Commission at 5:30 PM on October 3, 2017, in the Chambers Room on the third
floor of the Brookings City & County Government Center at 520 Third Street, Brookings,
South Dakota. Any action taken by the City Planning Commission is a recommendation to
the City Council.
Any person interested may appear and be heard in this matter.
Dated this 22nd day of September, 2017.
____________________________
Staci Bungard
City Planner
Planning Commission
Brookings, South Dakota
October 3, 2017
OFFICIAL MINUTES
Chairperson Al Heuton called the regular meeting of the City Planning Commission to order
on Tuesday, October 3, 2017, at 5:30 PM in the Chambers Room #310 on the third floor of
the City & County Government Center. Members present were Tanner Aiken, James Drew,
Greg Fargen, Alan Gregg, Lee Ann Pierce, Kristi Tornquist, Eric Rasmussen and Heuton.
Absent was Alan Johnson. Also present were City Planner Staci Bungard, City Engineer
Jackie Lanning, Ryan McKnight, Jeremy Scott, Blake Hoffman, Nacasius Ujah, Matt
Anderson, Jordan McCaskill, Joseph Mohr, Tanner Nelson, Jacob Rohlik, and others.
Item #5b -Frauenshuh Hospitality Group of Minnesota LLC has submitted a petition to
rezone Lot 1A of Lot 1, Block 1, Except the North 41 feet thereof, Mayland’s First Addition,
also known as 520 22nd Avenue, from a Business B-4 Highway District to a Business B-2
District.
(Aiken/Fargen) Motion to approve the rezone request. All present voted aye. MOTION
CARRIED.
OFFICIAL SUMMARY
Item #5b –This rezone request is for future development improvements. Dairy Queen
currently occupies this parcel. The property is nonconforming in the B-4 District and the
building does not meet the required setbacks in the B-4 District but does in the B-2 District.
The B-4 District is intended for larger lot uses specifially along the 6th Street near the
interstate. Where the B-2 District was designed to provide a variety of commercial uses
which were less intensive uses than in the B-4 District.
Ryan Schiller, Director of Operations for Fishback Financial Corporation wonders the
reasoning for this request. Bungard explained that at this point, they are not able to complete
improvements to their property. However if the rezone request is approved, they would be
able to improve this. Fargen asked for the differences between the B-2 and B-2A Districts.
Bungard explained that B-2A is directed more towards office uses and restaurants could also
be there. However, the signage requirements would restrict them from being in a B-2A
District.
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Dairy Que en - Zoning Area Map
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M I N N D R22ND AVEDairy Queen - Rezoning Map
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City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:ID 2017-0716,Version:1
Public Hearing with respect to South Dakota State University Projects and the Issuance of Bonds
under South Dakota Codified Laws Chapter 9-54, as Amended.
Summary:
This is a public hearing on the proposal to issue Revenue Bonds in a principal amount not to exceed
$9,700,000 (the “Bonds”), pursuant to South Dakota Codified Laws, Chapter 9-54, as amended (the
“Act”), in order to finance projects on behalf of South Dakota State University Foundation, a South
Dakota nonprofit corporation (the “Corporation”), which supports the educational mission of South
Dakota State University (the “University”) in Brookings, South Dakota.
Attachments:
Legal Notice
City of Brookings Printed on 11/21/2017Page 1 of 1
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CITY OF BROOKINGS,SOUTH DAKOTA
NOTICE OF PUBLIC HEARING
WITH RESPECT TO SOUTH DAKOTA STATE UNIVERSITY PROJECTS AND THE ISSUANCE OF
BONDS UNDER SOUTH DAKOTA CODIFIED LAWS CHAPTER 9-54,AS AMENDED
NOTICE IS HEREBY GIVEN that the City Council of the City of Brookings, South Dakota (the “City”)
will meet on November 28, 2017, at 6 p.m. at the Brookings City & County Government Center,
Room 310 (Chambers), Brookings, South Dakota, for the purpose of conducting a public hearing
on the proposal to issue revenue bonds in a principal amount not to exceed $9,700,000 (the
“Bonds”), pursuant to South Dakota Codified Laws, Chapter 9-54, as amended (the “Act”), in
order to finance projects on behalf of South Dakota State University Foundation, a South Dakota
nonprofit corporation (the “Corporation”), which supports the educational mission of South
Dakota State University (the “University”) in Brookings, South Dakota.
Proceeds derived from the sale of the Bonds will be lent to the Corporation and will be used
together with other available funds of the Corporation (i) to finance costs associated with the
projects described below (the “2017 Project”), and (ii) to pay certain costs of issuing the Bonds.
The 2017 Project includes two structures located on the campus of South Dakota State University
(which is the owner of the land), the street address of which is Administration Ln, Brookings,
South Dakota, and on certain adjacent land, all of which is generally described as bounded on the
North by SD Bypass 14, on the East by 22nd Avenue, on the South by 8th Street, and on the West
by Medary Avenue, all within the City of Brookings, South Dakota. The 2017 Project is currently
expected to consist generally of the following:
(i)A major expansion and remodeling of the South Dakota State University
Performing Arts Center, including construction, equipping and furnishing of such facility; and
(ii)The construction, equipping and furnishing of a practice gym facility adjacent to
the Stanley Marshall HPER academic and athletic facility.
All of the 2017 Project facilities will be owned, managed, and operated by South Dakota State
University.
Following the public hearing, the City Council of the City will consider the adoption of a resolution
approving the issuance of the Bonds in an aggregate principal amount not expected to exceed
$9,700,000. The Bonds will be limited obligations of the City, payable solely from revenues and
other properties of the Corporation pledged to the payment thereof. The Bonds will not be general
or moral obligations of the City, and will not be secured by, or payable from, any assets, revenues,
or other property of the City, and will not be secured by or payable from any revenues derived
from any application of the taxing powers of the City.
This Notice is required by the Internal Revenue Code of 1986, as amended. At the time and place
set for the public hearing, residents, taxpayers, and other interested persons will be given the
opportunity to express their views, both orally and in writing, on the proposed 2017 Project, the
Bonds and on the location and nature of the 2017 Project. Written comments may also be
- 2 -
131843394.4
submitted to the Finance Director, City Hall, 520 3rd Street, Suite 230, P.O. Box 270, Brookings,
South Dakota, 57006, or at scostello@cityofbrookings.org. Additional information may be
obtained from the City at the preceding address.
Date: October 24, 2017 By ________________________
Shari Thornes, City Clerk
City of Brookings
Staff Report
Brookings City & County
Government Center, 520
Third Street
Brookings, SD 57006
(605) 692-6281 phone
(605) 692-6907 fax
File #:RES 17-104,Version:1
Action on Resolution 17-104, a Resolution of the City of Brookings, South Dakota, authorizing the
Issuance of its Economic Development Revenue Bonds (South Dakota State University Foundation
Project), Series 2017, in an Original Aggregate Principal Amount not to exceed $9,700,000, for the
purpose of providing funds to be loaned to South Dakota State University Foundation, a South
Dakota Nonprofit Corporation, for the purpose of Financing Improvements to the Campus of South
Dakota State University; approving the form of and authorizing the execution and delivery of a Loan
and Security Agreement and a Tax Regulatory Agreement; approving the form of and authorizing the
execution and delivery of the Bonds and certain related documents; making certain Findings and
Determinations with respect to the Bonds; and providing for the Rights and Remedies of the Holders
of the Bonds.
Summary:
The City Council previously gave preliminary approval to serve as a conduit financing entity for the
SDSU Foundation to assist with their loan in an amount not to exceed $10 million for purposes of
financing certain building projects for SDSU. This specific issuance is for the Phase II Expansion of
the Performing Arts Center and the future renovation of Frost Arena/HPER Center in an aggregate
amount not to exceed $9.7 million. Conduit Financing is a common mechanism whereby non-profit
entities can access unencumbered bonding capacity of a public entity to achieve favorable financing
terms for capital debt. In essence, the City of Brookings would be a ‘pass-through’, or ‘conduit’
disburser of funds from the private lenders to the SDSU Foundation. Since the City had no major
debt issuances in 2017, we have the excess capacity that we can allow a qualifying entity to
otherwise use through this conduit process. The important consideration here is that the City of
Brookings has no legal, moral, or general obligation for the payments or this debt. What’s more, this
debt issuance does not have any impact on the City’s Bond Rating or our credit worthiness. Finally, it
does not impact our ability to issue any debt in 2018. If the City incurs any expenses associated with
this debt issuance, they are reimbursable by the Foundation. Brookings County has previously done
this for the SDSU Foundation but lacked the bonding capacity for 2017. The City has done this
similarly for the Boys and Girls Club and a housing project associated with Low Income Housing Tax
Credits in the past.
Attachments:
Resolution
Loan Agreement
SDSU - Bond
SDSU - Foundation Promissory Note
Legal Notice
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137362772.5
Date Adopted:
Date Published:
Effective Date:
Resolution 17-104
A Resolution of the City of Brookings, South Dakota, authorizing the Issuance of
its Economic Development Revenue Bonds (South Dakota State University Foundation
Project), Series 2017, in an Original Aggregate Principal Amount not to exceed
$9,700,000, for the purpose of providing funds to be loaned to South Dakota State
University Foundation, a South Dakota Nonprofit Corporation, for the purpose of
Financing Improvements to the Campus of South Dakota State University; approving
the form of and authorizing the execution and delivery of a Loan and Security
Agreement and a Tax Regulatory Agreement; approving the form of and authorizing the
execution and delivery of the Bonds and certain related documents; making certain
Findings and Determinations with respect to the Bonds; and providing for the Rights and
Remedies of the Holders of the Bonds.
Whereas, the City of Brookings, South Dakota (the “City”) is authorized by South
Dakota Codified Laws, Chapter 9-54, as amended (the “Act”), to promote the general
economic welfare and prosperity of the State by financing the provision of necessary
economic development facilities, including promotion and advancement of
postsecondary education; and
Whereas, the South Dakota State University Foundation, a South Dakota nonprofit
corporation (the “Foundation”) has requested the assistance of the City in connection
with paying certain costs of improvements to the Campus of South Dakota State
University, which would consist generally of the following (collectively, the “Project”):
(i) A major expansion and remodeling of the South Dakota State University
Performing Arts Center, including construction, equipping and furnishing of
such facility; and
(ii) The construction, equipping and furnishing of a practice gym facility adjacent
to the Stanley Marshall HPER academic and athletic facility;
Whereas, specifically, the Foundation has requested that the City issue its Economic
Development Revenue Bonds (South Dakota State University Foundation Project),
Series 2017 (the “Bonds”), in one or more series in the original aggregate principal
amount not to exceed $9,700,000 to finance costs of the Project in accordance with the
terms of a Loan and Security Agreement (the “Loan and Security Agreement”) to be
entered into by and among the City, the Foundation and one or more of the Purchasers
(defined below) pursuant to which the proceeds derived from the sale of the Bonds will
be loaned to the Foundation (the “Loan”); and
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Whereas, the Foundation has advised the City that First Premier Bank (“First Premier”)
and First Bank & Trust (“First Bank & Trust” and, together with First Premier and any
successor holders of any of the Bonds, the “Purchasers”) have agreed to purchase the
Bonds;
Now, Therefore, Be It Resolved by the City of Brookings South Dakota, that:
Section 1. The City finds that it is appropriate to finance costs of the Project in
order to promote and advance postsecondary education and that the issuance, sale,
and delivery of the Bonds are consistent with the purposes of the Act.
Section 2. For the purposes of funding costs of the Project and paying the costs
of issuing the Bonds, there are hereby authorized the issuance, sale, and delivery of the
Economic Development Revenue Bonds (South Dakota State University Foundation
Project), Series 2017 (the “Bonds”) in the aggregate principal amount not to exceed
$9,700,000, and such Bonds shall be issued in such principal amounts, shall be
numbered, shall be dated, shall mature, shall be subject to redemption prior to maturity,
and shall be in such form and have such other details and provisions as are prescribed
in the Loan and Security Agreement, substantially in the form now on file with the City.
The Bonds shall bear interest at the rates specified in the Loan and Security
Agreement. The form of Bonds is approved in substantially the form on file with the City
Clerk, subject to such changes not inconsistent with this Resolution and applicable law
that are approved by the Mayor and Finance Director. The issuance and delivery of the
Bonds shall be conclusive evidence that the Mayor and Finance Director have approved
all provisions of the Bonds as issued and any changes to the form of the Bonds on file
with the City on the date hereof.
Section 3.The Bonds shall be special obligations of the City payable solely from
the revenues and other funds pledged pursuant to the Loan and Security Agreement.
The Mayor, Finance Director and City Clerk and other officers of the City (the “City
Officials”) are hereby authorized and directed to enter into, execute, and deliver the
Loan and Security Agreement, and are hereby authorized and directed to execute and
deliver the Bonds in accordance with the terms of the Loan and Security Agreement,
and it is hereby provided that the Loan and Security Agreement shall provide the terms
and conditions, covenants, rights, obligations, duties, and agreements of the
Purchasers, the City, and the Foundation, as set forth therein.
All the provisions of the Loan and Security Agreement, when executed as
authorized herein, shall be deemed to be a part of this Resolution as fully and to the
same extent as if incorporated verbatim herein and shall be in full force and effect from
the date of execution and delivery of the Loan and Security Agreement. The Loan and
Security Agreement shall be substantially in the form now on file with the City, with such
necessary and appropriate variations, omissions, and insertions as do not materially
change the substance thereof, or as the Mayor and Finance Director, in their discretion,
shall determine, and the execution and delivery thereof by the City Officials shall be
conclusive evidence of such determination.
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Section 4.The City Officials are hereby authorized and directed to enter into,
execute, and deliver the Loan and Security Agreement, providing for the loan of the
proceeds derived from the sale of the Bonds to the Foundation.
Section 5. First Premier, as the Depository (“Depository”) is hereby appointed
the custodian of the funds and accounts created under the Loan and Security
Agreement and the authenticating agent, paying agent, and registrar with respect to the
Bonds.
Section 6. The City hereby approves the execution and delivery by the
Foundation of: (i) a Tax Regulatory Agreement among the City, the Foundation and the
Depository (the “Tax Regulatory Agreement”), and (ii) all other documents, instruments,
and security of any nature provided by the Foundation to the City, or to the Purchasers.
Section 7. The City Officials are hereby authorized to execute and deliver, on
behalf of the City, the Tax Regulatory Agreement and such other certificates,
instruments, and other documents as are necessary, customary, or appropriate in
connection with the issuance, sale, and delivery of the Bonds, or are necessary to
establish the validity or enforceability of the Bonds, or are required by bond counsel to
establish the validity or enforceability of the Bonds or the exclusion from gross income
of interest on the Bonds for purposes of federal income taxation and State of South
Dakota taxation (including a certificate as to the status of the Bonds as not being
“arbitrage bonds,” an Information Return for Tax-Exempt Private Activity Bond Issues,
Form 8038), and any UCC-1 financing statements.
Section 8. The City expects that the City (together with any subsidiary entities
under the control of the City and any entities that issue obligations on behalf of the City)
will not issue tax-exempt obligations in calendar year 2017 which, along with the
Bonds, would aggregate more than $10,000,000. Accordingly, the Bonds are hereby
designated as “qualified tax-exempt obligations” within the meaning of Section
265(b)(3)(B) of the Code.
Section 9. All covenants, stipulations, obligations, and agreements of the
City contained in this Resolution and the aforementioned certificates, instruments,
and documents shall be deemed to be the covenants, stipulations, obligations,
and agreements of the City to the full extent authorized or permitted by law, and
all such covenants, stipulations, obligations, and agreements shall be binding
upon the City. No covenant, stipulation, obligation, or agreement herein contained
or contained in the aforementioned certificates, instruments, or documents shall
be deemed to be a covenant, stipulation, obligation, or agreement of any member
of the City Council of the City, or any officer, agent, or employee of the City in that
person’s individual capacity, and neither the City Council of the City nor any
officer or employee executing the Bonds shall be liable personally on the Bonds
or be subject to any personal liability or accountability by reason of the issuance
thereof.
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No provision, covenant, or agreement contained in the aforementioned
certificates, instruments, or documents, or in the Bonds, or in any other document
related to the Bonds, and no obligation therein or herein imposed upon the City or the
breach thereof, shall constitute or give rise to any pecuniary liability of the City or any
charge upon its general credit or taxing powers. The Bonds shall never constitute an
indebtedness of the City within the meaning of any provision or limitation of the South
Dakota Constitution or statutes, or the City Charter and shall not constitute or give rise
to any pecuniary liability of the City or any charge upon its general credit or taxing
powers. In making the agreements, provisions, covenants, and representations set forth
in such documents, the City has not obligated itself to pay or remit any funds or
revenues, other than funds and revenues derived from the Loan and Security
Agreement which are to be applied to the payment of the Bonds, as provided therein
and in the Loan and Security Agreement.
Section 10. Except as herein otherwise expressly provided, nothing in this
Resolution or in the aforementioned documents, expressed or implied, is intended or
shall be construed to confer upon any person or firm or corporation, other than the City
or any owner of the Bonds issued under the provisions of this Resolution any right,
remedy, or claim, legal or equitable, under and by reason of this Resolution or any
provision hereof, this Resolution, the aforementioned documents, and all of their
provisions being intended to be and being for the sole and exclusive benefit of the City
and any owner from time to time of the Bonds issued under the provisions of this
Resolution.
Section 11.In case any one or more of the provisions of this Resolution, or of the
aforementioned documents, or of the Bonds issued hereunder shall for any reason be
held to be illegal or invalid, such illegality or invalidity shall not affect any other provision
of this Resolution, or of the aforementioned documents, or of the Bonds, but this
Resolution, the aforementioned documents, and the Bonds shall be construed and
endorsed as if such illegal or invalid provision had not been contained therein. All of the
aforementioned documents are on file in the office of the Finance Director and are
available for inspection by any interested party.
Section 12. The Bonds, when executed and delivered, shall contain a recital that
they are issued pursuant to the Act, and such recital shall be conclusive evidence of the
validity of the Bonds and the regularity of the issuance thereof and that all acts,
conditions, and things required by the laws of the State relating to the adoption of this
Resolution, to the issuance of the Bonds, and to the execution of the aforementioned
documents to happen, exist, and be performed precedent to and in the enactment of
this Resolution, and precedent to issuance of the Bonds, and precedent to the
execution of the aforementioned documents have happened, exist, and have been
performed as so required by law.
Section 13.The City Officials are hereby authorized to do all acts and things
required of them by or in connection with this Resolution, the aforementioned
certificates, instruments, or documents, and the Bonds for the full, punctual, and
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complete performance of all the terms, covenants, and agreements contained in the
Bonds, the aforementioned certificates, instruments, and documents, and this
Resolution. In the event that for any reason any City Official is unable to carry out the
execution of any of the documents or other acts provided herein, any person delegated
the authority to act on behalf of such City Official is hereby authorized to act in the
capacity of such City Official and undertake such execution or acts on behalf of the City
with full force and effect, which executions or acts shall be valid and binding on the City.
If the person whose signature appears on any of the foregoing certificates, instruments,
or documents shall cease to be a City Official before the date of issuance of the Bonds
such signature shall, nevertheless, be valid and sufficient for all purposes.
Section 14. The City shall publish this Resolution after its passage. The City shall
not issue the Bonds authorized hereunder if within twenty (20) days after publication of
this Resolution there shall be filed with the City a petition requesting a referendum in the
form required by, and signed by the requisite number of voters as provided in, Section
9-20-6 of the South Dakota Codified Laws, in which event, this Resolution shall not
become operative and the City shall not issue the Bonds unless and until the
requirements of Section 9-20-5 of the South Dakota Codified Laws are satisfied. In
addition, the Bonds shall not be issued until after (a) a public hearing is held as provided
by Section 147(f) of the Internal Revenue Code of 1986, as amended (the “Code”) and
(b) the issuance of the Bonds is approved following such public hearing by the
applicable elected representative of the City as provided by Section 147(f)(2) of the
Code.
Section 15. All prior resolutions or Resolutions which conflict with the provisions
of this Resolution are hereby repealed to the extent of such conflict.
Passed and Approved this 28th day of November, 2017.
CITY OF BROOKINGS
Keith W. Corbett, Mayor
ATTEST:
Shari Thornes, City Clerk
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LOAN AND SECURITY AGREEMENT
This Loan and Security Agreement (the “Loan Agreement”) dated as of the ____ day
of December, 2017, by and among CITY OF BROOKINGS, SOUTH DAKOTA, a body politic and
corporate (the “City”), SOUTH DAKOTA STATE UNIVERSITY FOUNDATION, a South Dakota non-
profit corporation (the “Foundation”), FIRST PREMIER BANK (“First Premier”), and FIRST
BANK & TRUST (“First Bank & Trust”). Capitalized terms not otherwise defined in the text
hereof have the meanings assigned to them in Article I hereof.
WHEREAS, the Act authorizes and empowers cities of the State of South Dakota to issue
and sell revenue bonds and lend the proceeds thereof to a person or corporation for the purpose
of financing or refinancing projects authorized thereby; and
WHEREAS, the Foundation has undertaken economic development projects authorized by
the Act in the City (as further described on Exhibit A hereto); and
WHEREAS, the City proposes to issue and sell its City of Brookings Economic
Development Revenue Bond, Series 2017 (South Dakota State University Foundation Project)
and to make a loan of the proceeds thereof to the Foundation under this Loan Agreement and
pursuant to the Act in order to finance costs of the Project.
NOW, THEREFORE, in consideration of the mutual agreements and covenants hereinafter
contained, the parties hereto covenant and agree as follows:
RECITALS
ARTICLE I
INTERPRETATION OF THIS LOAN AGREEMENT
Section 1.1 Terms Defined. As used in this Loan Agreement, the following terms
shall have the following respective meanings:
“Accountant” means an independent certified public accountant or firm of
certified public accountants selected by the Foundation.
“Act” means Chapter 9-54 of the South Dakota Codified Laws (“SDCL”), as the
same may be amended from time to time.
“Bond Counsel” means Perkins Coie, LLP.
“Bond Fund” means the fund to be held and administered as provided in Section
3.5, that shall be used to achieve a proper matching of revenues from the Note with the
payments due on the Bonds.
“Bondholder” means the registered owner of any Bonds.
“Bonds” means the term as defined in Section 2.1.
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“Business Day” means any day on which the City is not required or authorized to
remain closed.
“City” means the City of Brookings, South Dakota.
“Closing Date” means December __, 2017.
“Code” means the Internal Revenue Code of 1986, as amended, and the
applicable regulations proposed or promulgated thereunder.
“Default” means an event or condition, the occurrence of which would, with the
lapse of time or the giving of notice, or both, become an Event of Default.
“Default Rate” means a rate of interest that is 300 basis points higher than the
interest rate in effect as to the Bonds immediately prior to the occurrence of the Event of
Default.
“Depository” shall be a state or federally chartered bank located in South Dakota
which is mutually approved by the Purchasers, the City and the Foundation. The initial
Depository shall be First Premier.
“Determination of Loss of Section 265(b)(3) Qualification” means receipt by the
Foundation of a written notice to the effect that (a) there has occurred a determination by
the Internal Revenue Service or a court of competent jurisdiction that any Bond does not
constitute “qualified tax-exempt obligations” within the meaning of Section 265(b)(3) of
the Code, (b) Bond Counsel has stated in writing that it is unable to confirm that the Bond
constitutes “qualified tax exempt obligations” within the meaning of Section 265(b)(3) of
the Code, or (c) there has been a determination by legal counsel who has been jointly
selected by the Purchasers and Foundation that such Bond does not constitute “qualified
tax-exempt obligations” within the meaning of Section 265(b)(3) of the Code.
Notwithstanding the foregoing, a “Determination of Loss of Section 265(b)(3)
Qualification” shall not be deemed to have occurred if such Bond no longer qualifies as a
“qualified tax-exempt obligation” because the Bondholder is not eligible to claim such
benefit under the Code.
“Determination of Taxability” means a determination that interest accrued or
paid on any Bonds is included in gross income for federal income tax purposes, which
determination shall be deemed to have been made upon the occurrence of the first to
occur of the following: (a) the date on which any Bondholder is advised in writing by the
Commissioner or any District Director of the Internal Revenue Service that, as a
consequence of an action, or a failure to act, by the City or the Foundation, the interest on
the Bonds is included in gross income for federal tax purposes; (b) the date on which the
City or the Foundation receives notice from a Bondholder that the Bondholder has been
advised (i) in writing that the Internal Revenue Service has issued a statutory notice of
deficiency or similar notice to such Bondholder which asserts, in effect, that the interest
on the Bonds received by such Bondholder is included in the gross income of such
Bondholder for federal income tax purposes, as a result of an action, or failure to act, by
the City or the Foundation or (ii) by an opinion of independent counsel (approved by the
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City and the Foundation) received by the Bondholder which concludes, in effect, that
interest on the Bonds is included in gross income for federal income tax purposes as a
result of an action, or failure to act, by the City or the Borrower; (c) the day on which the
City is advised in writing by the Commissioner or any District Director of the Internal
Revenue Service that there has been issued a public or private ruling of the Internal
Revenue Service that the interest on the Bonds is included in gross income for federal
income tax purposes as a result of an action, or failure to act, by the City or the
Foundation; or (d) the day on which the City is advised in writing by counsel to the
Bondholder that a final determination, from which no further right of appeal exists, has
been made by a court of competent jurisdiction in the United States of America in a
proceeding with respect to which the City and the Foundation have been given written
notice and an opportunity to participate and defend that the interest on the Bonds is
included in gross income for federal income tax purposes as a result of an action, or
failure to act, by the City or the Foundation; provided, in any event, that no
Determination of Taxability shall arise from the interest on the Bonds being included
(1) in income for purposes of calculating alternative minimum taxable income of any
person or corporation pursuant to Section 55 of the Code, (2) in earnings and profits of
branches of foreign corporations for purposes of calculating the “branch profits tax,”
(3) within gross income to certain recipients of social security benefits, and (4) as passive
investment income to certain subchapter S corporations which have subchapter C
earnings and profits; provided, further, that no such Determination of Taxability shall be
deemed to have occurred until the expiration or waiver of all periods for appeal; and,
provided further, that in the event the Determination of Taxability is contested by the
Foundation in the name of any Bondholder, then all final decisions regarding such contest
shall be made by the Bondholder and shall be binding on the Foundation, provided,
however, that if the Bondholder at any time refuses to permit the Foundation to contest
the Determination of Taxability then the interest on the Bonds shall not be deemed to be
taxable within the meaning of this definition.
“Disbursement” means a disbursement from the Project Fund pursuant to Section
3.2 of this Agreement.
“Disbursement Request” means a request by the Foundation for an Advance
substantially in the form of Exhibit B attached hereto and submitted and approved as
provided in Section 3.2.
“Event of Default” means with respect to this Loan Agreement, any Event of
Default as described in Section 12 hereof.
“Event of Loss of Section 265(b)(3) Qualification” means the occurrence of the
circumstances upon which the Determination of Loss of Section 265(b)(3) Qualification
is predicated.
“Event of Taxability” means the occurrence of the circumstances upon which the
Determination of Taxability shall have been predicated which results in the interest
payable on any Bond becoming includible in the gross income of the holders of such
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Bond and such event shall be deemed to have occurred on the first date on which interest
payable on the Bond is subject to inclusion in federally taxable income.
“Facility” means each of the buildings constructed or improved as part of the
Project, as set forth on Exhibit A.
“Final Maturity Date” means December 31, 2025.
“Fiscal Year” means the 12-month period ending on December 31st of each year,
or such other 12-month period set forth in a certificate of the Foundation signed by a
Foundation Representative provided to the City and the Purchasers specifying the fiscal
year of the Foundation for accounting purposes.
“Foundation” means South Dakota State University Foundation, a South Dakota
non-profit corporation, and its permitted successors and assigns.
“Foundation Representative” means the President, Chief Financial Officer or
other individual who has been duly authorized by the Board of Governors on behalf of
the Foundation to sign Disbursement Requests for the disbursement of moneys held in
the Bond Fund or to sign other certificates to be furnished hereunder from time to time to
the City, the Purchasers or the Purchasers.
“Fund” means the Bond Fund, the Rebate Fund and the Project Fund, as each
term is defined in Article III.
“GAAP” means generally accepted accounting principles set forth in the opinions
and pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other Person as may be
approved by a significant segment of the accounting profession, which are applicable to
the circumstances as of the date of determination.
“Government Securities” means direct noncallable obligations of, or obligations
the timely payment of the principal of and interest on which are unconditionally
guaranteed by, the United States of America.
“Inclusion Period” means, for any Bonds, the period beginning on the date of an
Event of Taxability and ending on the date of the Determination of Taxability, or if the
Bonds were outstanding on the date of the Event of Taxability but were paid or redeemed
prior to the Determination of Taxability, the period ending on the date such Bonds were
paid or redeemed.
“Investment Securities” means any of the following securities, if and to the extent
the same are at the time legal for investment of the City’s funds and permissible
investments under the Code:
(i)Government Securities;
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(ii)certificates of deposit, whether negotiable or nonnegotiable, issued
by any bank or trust company organized under the laws of any state of the United
States of America or any national banking association (including the Purchasers);
(iii)such other investments as are authorized by SDCL 4-5-6, as the
same may be amended from time to time.
“Loan” means the aggregate of $9,700,000.00 advanced from the City to the
Foundation made hereunder as described in Section 2.2.
“Loan Documents” means this Loan Agreement, the Tax Exemption Agreement,
the Note, the Bonds and any other document executed in connection with, or that is
related to the transactions contemplated by, the foregoing as the same may be
supplemented or otherwise amended from time to time.
“Loan Payments” shall have the meaning set forth in Section 2.4.
“Maximum Principal Amount” shall be the maximum amount of Advances to
be made by a Purchaser of a Bond as set forth at the top of the face page of the Bond.
“Note” shall mean the promissory note issued by the Foundation to the City at the
closing in the principal amount of $9,700,000.00.
“Participant” means the term as defined in Section 5.
“Permitted Investments” means investments in (i) Government Securities;
(ii) bonds, debentures, notes or other evidences of indebtedness issued by any of the
following: Federal Home Loan Banks; Federal Home Loan Mortgage Foundation
(including participation certificates); and Federal Financing Bank; (iii) certificates of
deposit or time deposits constituting direct obligations of any bank (including the
Purchasers) which is a “qualified public depository” or any savings and loan association
which is a “savings and loan depository” under the Public Deposit Insurance Act
pursuant to Chapter 4-6A of the South Dakota Codified Laws and which obligations are
fully insured as to principal by the Federal Deposit Insurance Foundation or its
successors, or, if not so insured, which obligations are either fully collateralized with
Government Securities or are in such institutions which are rated in either of the two
highest categories established by Moody’s Investors Service, Inc. and Standard & Poor’s
Ratings Group, or, if a sufficient volume of such certificates is not available at
competitive interest rates, then in direct obligations of United States banks and savings
institutions that are rated in one of the highest two categories by Moody’s Investors
Service, Inc. and Standard & Poor’s Ratings Group; (iv) certificates of deposit, time
deposits, or demand deposits of the Purchasers so long as the Purchasers is a “well
capitalized institution” as defined in Regulation F of the Board of Governors of the
Federal Reserve System (12 C.F.R. 206); (v) short term discount obligations of the
Federal National Mortgage Association; (vi) money market funds which invest in
Government Securities permitted by clause (i) of this definition and which are rated “aaa”
by Moody’s Investor Service Inc.; or (vii) such other investments as are authorized by
SDCL 4-5-6. Investments in any Permitted Investment listed above may be made either
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directly or indirectly or in the form of securities of, or other interests in, an investment
company registered under the Federal Investment Foundation Act of 1940, whose shares
are registered under the Federal Securities Act of 1933 and whose investments are limited
solely to any or all of the Permitted Investments enumerated above. Any Government
Security collateralizing investments made pursuant to (iii) above must be held by a
trustee (who shall not be the provider of the collateral), or any Federal Reserve Bank or
depositary as custodian for the institution issuing such deposits and such trustee shall
have a perfected first lien in the Government Securities serving as collateral, and which
collateral is free from all third party liens. The Purchasers, so long as it is a depository of
funds hereunder pursuant to clause (iv) above, will provide to the Foundation not less
than quarterly, a signed statement to the effect that it is in compliance with the
requirements of (iii) above and attaching to such statement such supporting financial
statements and information as is necessary to evidence such compliance.
“Person” means an individual, partnership, joint venture, corporation, limited
liability company, trust, unincorporated organization or foundation, and a government or
agency or political subdivision thereof.
“Pledged Property” means the Pledges pledged by the Foundation in support of
the repayment of the Bonds, together with all proceeds, accessions, additions,
replacements and substitutions thereof.
“Pledge Year” means the annual period which begins on December [16] of a year
and ends on December [15] of the next year; provided that the first Pledge Year shall be
deemed to commence on the date of this Agreement and shall end on December [15],
2018.1
“Pledges” means gifts, contributions, bequests, donations and any other funds
pledged to the Foundation for the purpose of paying for costs associated with the Projects
and held in temporary restricted accounts (the “Project Pledge Accounts”), and, for
purposes of the UCC, includes all deposit, savings or other accounts in which the Project
Pledge Accounts are held in any financial institution, all cash in such accounts and the
proceeds thereof.
“Prepayment Date” means each Business Day on which a prepayment permitted
under Section 2.6 is to be made.
“Project” means, collectively, the Projects described on Exhibit A.
“Project Fund” means the fund to be held and administered by the Purchasers
pursuant to Section 3.2.
“Project Site” means all of the real estate described in Exhibit A attached hereto
and by this reference made a part hereof.
1 To be discussed – the purpose of this defined term is to allow time for the measurement of pledge receipts in a
given year so that the annual principal payment can be made on a timely basis on the following December 31st.
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“Purchasers” means FIRST PREMIER BANK and FIRST BANK & TRUST and their
respective successors and assigns, or in the event any Purchaser no longer holds any
Bonds, then each reference to such Purchaser shall be deemed to be a reference to
“Bondholders” as the context may so require.
“Rebate Fund” means the fund to be held and administered by the Purchasers
pursuant to Section 3.4.
“Secured Obligations” means, as to the Foundation, (a) all obligations of the
Foundation under the Note, including the principal thereof, accrued interest thereon and
other amounts due to the holder thereof pursuant to this Loan Agreement and the other
Loan Documents, and (b) all renewals or extensions thereof, from time to time.
“Security” shall have the same meaning as in Section 2(1) of the Securities Act.
“Securities Act” shall mean the Securities Act of 1933, as amended, and the
regulations promulgated thereunder.
“Sinking Fund Installment” for each Pledge Year shall mean the greater of:
(a) the amount of Pledges received by the Foundation with respect to the
Pledged Property during such Pledge Year less the amount of the June 30 interest
payment for such year and
(b) the amount which, if paid as principal of the Bonds on the next
December 30, would cause the remaining outstanding principal amount of the
Bonds to be less than the remaining uncollected Pledged Property.
“Taxable Bonds” means any Bonds upon which tax is payable on the interest on
or after the Determination of Taxability has occurred, whether or not such Bonds have
been redeemed or have matured on or after the date of the Determination of Taxability.
“Tax Exemption Agreement” means the Tax Exemption Agreement dated as of
even date herewith, between the City and the Foundation.
“Uniform Commercial Code” means the Uniform Commercial Code, Title 57A,
as in effect from time to time in the State of South Dakota.
Section 1.2 Accounting Principles. Where the character or amount of any asset or
liability or item of income or expense is required to be determined or any consolidation or other
accounting computation is required to be made for the purposes of this Loan Agreement, this
shall be done in accordance with GAAP at the time in effect.
Section 1.3 Rules of Interpretation.
(a)Where the character or amount of any asset or liability or item of income
or expense is required to be determined or any consolidation or other accounting
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computation is required to be made for the purposes of any Loan Document, this shall be
done in accordance with GAAP at the time in effect.
(b)The words “herein,” “hereof” and “hereunder” and other similar words
refer to this Loan Agreement as a whole and not to any particular Article, Section or
other subdivision.
(c)The words “including” shall be deemed to mean “including without
limitation” unless the context clearly indicates otherwise.
(d)Any pronouns used in this Loan Agreement shall include both the singular
and the plural and cover both genders.
(e)Any terms not defined in this Loan Agreement but which are defined in
any Loan Document shall have the same meaning in this Loan Agreement as are given to
them in the applicable Loan Document.
(f)The captions or headings herein are for convenience only and in no way
define, limit or describe the scope or intent, or control or affect the meaning or
construction, of any provisions or sections hereof.
(g)Any references to Section numbers are to Sections of this Loan Agreement
unless stated otherwise.
Section 1.4 Directly or Indirectly. Where any provision in this Loan Agreement
refers to action to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or indirectly by such Person.
Section 1.5 Governing Law. This Loan Agreement and the other Loan Documents
shall be governed by and construed in accordance with South Dakota law.
ARTICLE II
COMMITMENTS FOR THE LOAN AND CLOSING
Section 2.1 Borrowing by the City and Description of Bond. On the Closing Date,
the Purchasers have agreed to purchase and the City has agreed to issue and sell its Economic
Development Revenue Bond, Series 2017 (South Dakota State University Foundation Project)
(the “Bonds”), in the principal amount of $9,700,000.00 as follows:
(a)First Premier shall make Advances on the Bonds up to a Maximum
Principal Amount of $6,062,500.00, and
(b)First Bank and Trust shall make Advances on the Bonds in a Maximum
Principal Amount $3,637,500.00.
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Such Advances shall be made by the Purchasers on a pro rata basis with First Premier
making Advances in 62.5% of each Advance and First Bank and Trust making Advances in
37.5% of each Advance. The obligation to make any Advance is several, not joint.
To evidence such Advance, (1) First Premier will be issued a single registered Bond on
the Closing Date registered in its name with a stated Maximum Principal Amount of
$6,062,500.00 and showing an initial Advance as of the Closing Date of $[31,250]2 and will be
issued a single registered Bond on the Closing Date registered in its name with a stated
Maximum Principal Amount of $3,637,500.00 and showing an initial Advance as of the Closing
Date of $[18,750]. The Bonds shall be issuable in the form of a single fully registered bond to
each Purchaser, without coupons, and numbered R-1 upwards.
Section 2.2 Borrowing by the Foundation and Description of Note. Subject to all
the terms and conditions hereof and on the basis of the representations and warranties hereinafter
set forth and subject to the closing of concurrent borrowings by the City from the Purchasers
pursuant to Section 2.1, the City agrees to lend to the Foundation, and the Foundation agrees to
borrow from the City up to $9,700,000.00, to be evidenced by the Note.
Section 2.3 Interest Rate. Interest shall accrue on the unpaid principal balance of the
Notes and the Bonds from the date of the execution and delivery thereof until such obligations
have been fully and finally satisfied, at a fixed interest rate per annum equal to 3.15%, calculated
on the basis of a calendar year with 360 days.
Section 2.4 Repayment of the Loan.
(a)The City will cause the principal of and interest on the Bonds to be paid
solely from the sources provided herein, namely the Pledges and other revenues pledged
by the Foundation to the City and other payments, if any, made to the City on the Notes.
(b)The Foundation covenants and agrees with the Purchasers, that it shall,
with respect to the Note, make payments of principal and interest thereon at the times and
in the amounts which will allow the City to pay principal and interest on the Bonds as
and when due. Such payments by the Foundation shall be made to the Depository which
shall record receipt of such payment as a credit to the Bond Fund and then, in turn, the
Depository shall remit payments on the Bonds from the Bond Fund to the Purchaser on a
pro rata basis. Each Loan Payment shall at all times be sufficient to pay the total amount
of interest and principal (whether at scheduled maturity, by acceleration, or by
redemption as provided herein) and premium, if any, payable on the payment date that
such Loan Payment is due.
(c)The Bonds require that interest be paid semiannually on each June 30 and
December 31 commencing on June 30, 2018. In addition, the Bonds require the payment
of a Sinking Fund Installment on each December 31 commencing December 31, 2018.
The remaining outstanding principal, accrued and unpaid interest and all other amounts
payable shall be due and payable on the Final Maturity Date.
2 Tax law will require that a minimum of $50,000 be advanced as of the initial closing date. The amounts specified
above constitute 62.5% and 37.5% of $50,000.
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(d)In addition, the Foundation covenants and agrees to immediately pay to
each of the Purchasers, upon written request by the Purchasers, such sums as are
necessary to satisfy any and all obligations, including, but not limited to, additional
interest, penalties and costs incurred by the parties due to an Event of Taxability or an
Event of Loss of Section 265(b)(3) Qualification. The Foundation’s obligations under
this Section 2.4 (d) shall survive the defeasance, redemption, or final payment of the
Bond.
Section 2.5 Additional Payments. The Foundation shall pay as additional payments
the following amounts:
(a)All fees, charges and expenses, including legal counsel fees incurred by
Purchasers in connection with the closing of the transactions contemplated by this
Agreement.
(b)An amount sufficient to reimburse the City for all expenses reasonably
incurred by the City and its counsel hereunder and in connection with the performance of
its obligations under this Loan Agreement.
(c)All expenses incurred in connection with the enforcement of any rights
under this Loan Agreement by the City or the Purchasers.
(d)All other payments of whatever nature which the Foundation has agreed to
pay or assume under the provisions of this Loan Agreement.
Section 2.6 Prepayments.
(a)Prepayments. The Bonds and the Notes may be prepaid in full, in whole
or in part, without penalty. In addition, the principal of the Bonds shall be prepaid in an
amount equal to the Sinking Fund Installment each year commencing on December 31,
2018. All such payments shall be applied pro rata to the individual Bonds then
outstanding.
(b)Procedure. If the Foundation wants to prepay the Bonds, the Foundation
shall notify the City, the Purchasers and the Purchasers of its prepayment request, which
notice shall specify the principal amount of the Bonds to be prepaid and the proposed
Prepayment Date. Such notice from the Foundation must be given at least thirty (30)
days prior to the proposed Prepayment Date. The Purchasers shall apply all prepayments
to the principal installments in the inverse order of their maturities.
Section 2.7 Security. Amounts owing pursuant to the Notes shall be secured by a
security interest in the Pledged Property as provided in Section 11.1, together with a negative
pledge as provided in Section 8.3.
Section 2.8 The Closing. The closing of the issuance and sale of the Bonds and the
Loan to be granted by the City to the Foundation shall be held on the Closing Date at the offices
of Bond Counsel, or at such other time or place as may be mutually agreed upon by the parties.
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Section 2.9 Limited Obligations; Non-Liability of City.
(a)The Bonds authorized and issued hereunder and the payments to be made
by the City thereon are not a general obligation of the City but are a limited obligation of
the City payable solely from the payments by the Foundation on the Notes.
(b)The Bonds do not constitute a pledge of the full faith and credit of the
City. The issuance of the Bonds under the provisions of the Act does not, directly or
indirectly, or contingently, obligate the City to levy any form of taxation for the payment
thereof or to make any appropriation for its payment and such Bonds and interest thereon
does not now and shall never constitute a debt of the City within the meaning of the
Constitution or the Statutes of South Dakota and does not now and shall never constitute
a charge against the credit or taxing power of the City or of the State of South Dakota or
any political subdivision thereof.
(c)Anything in this Loan Agreement or the Bonds to the contrary
notwithstanding, no recourse shall be had for the payment of the principal of or interest
on the Bonds or for any claim based thereon or otherwise in respect thereof or based on
or in respect of this Loan Agreement against the City; it being expressly understood that
the Bonds and all obligations of the City under this Loan Agreement and the Bonds are
solely nonrecourse obligations as to the City and that all such liability of the City is and is
to be, by the acceptance of this Loan Agreement and the Bonds by the Purchasers,
expressly waived and released as a condition of, and as consideration for, the execution
and delivery of this Loan Agreement and the Bonds; provided however, that nothing
contained herein or in the Bonds shall constitute a waiver of any indebtedness evidenced
by this Loan Agreement or the Bonds or shall be taken to prevent the enforcement by
way of specific performance or recourse to the security interest in the Pledged Property or
any part thereof, for all liabilities, obligations and undertakings of the Foundation
contained in this Loan Agreement or in the Note.
(d)The Foundation hereby acknowledges and agrees that the City shall not be
liable to the Foundation, and hereby releases and discharges the City from any liability,
for any and all losses, costs, expenses (including attorneys’ fees), damages, judgments,
claims and causes of action, paid, incurred or sustained by the Foundation as a result of or
relating to any action, or failure or refusal to act, on the part of the Purchasers with
respect to this Loan Agreement or the documents and transactions related hereto or
contemplated hereby, including, without limitation, the exercise by the Purchasers of any
of its rights or remedies pursuant to the Loan Agreement or any collateral security
documents. Nothing contained herein shall be deemed as a release by the Foundation of
the Purchasers for any liabilities referred to herein.
(e)Nothing contained in this Loan Agreement or the Notes shall be
interpreted as creating any obligation on the part of the City to purchase any additional
Notes or other obligation of the Foundation, it being the intent hereof to reserve to the
City full and complete discretion to decline to make such loans in the performance of its
duties under the Act.
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Section 2.10 Advances; Deposit of Funds. The proceeds received by the City upon
each Advance shall be deposited in the Project Fund and promptly advanced to the Foundation as
an advance of the Loan for purposes of paying the Project Costs. Each Advance shall be made
by the Depository with the funds collected from the Purchasers upon receipt and approval by the
Depository of a Disbursement Request from the Foundation.
ARTICLE III
FUNDS AND ACCOUNTS
CUSTODY AND APPLICATION OF BONDS PROCEEDS
Section 3.1 Creation of Funds and Accounts. The Depository shall establish,
maintain and have custody of the following special funds: (i) the Project Fund; (ii) the Bond
Fund; and (iii) Rebate Fund, if applicable.
Section 3.2 The Project Fund. The Project Fund shall be held and administered by
the Depository as follows:
(a)Deposits to the Project Fund. The following funds shall be paid over to
and deposited by the Depository into the Project Fund, upon receipt of a Disbursement
Request:
(1)Amounts deposited pursuant to Section 2.10.
(2)Earnings accrued on the investment of moneys in the Project Fund
shall be deposited to the Project Fund and used to pay costs of the Project.
(3)The Net Proceeds of casualty insurance, title insurance or
condemnation awards required to be deposited into the Project Fund pursuant to
the Loan Agreement.
(4)All amounts collected under any performance and labor and
material payment bond and any and all payments from any contractors or other
suppliers by way of breach of contract, refunds or adjustments required to be
deposited into the Project Fund pursuant to the Loan Agreement.
(5)Except as otherwise provided herein or in the Loan Agreement,
any other money received by or to be paid to the Purchasers from any other
source for the purchase and construction of the Project, when accompanied by
directions from the Foundation that such moneys are to be deposited into the
Project Fund.
(b)Disbursements from the Project Fund. Disbursements from the Project
Fund shall be made as follows:
(1)Advances on the Bonds shall be made and deposited into the
Project Fund as provided in Section 2.10 and the proceeds thereof shall be
immediately disbursed by the Depository to the Foundation or as otherwise may
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be directed by the Foundation, whichever is applicable, for the payment of Project
Costs upon receipt of Disbursement Requests in the form of Exhibit B attached
hereto, signed by the Foundation Representative and satisfaction of each of the
conditions precedent set forth in Section 6.2. Disbursements shall take the form
of moneys to cover construction draws or fixture purchases or reimbursement for
capital expenditures previously made, provided that the capital expenditures are
eligible for reimbursement under the Code.
(2)Each payment request shall be approved by the Depository within
ten (10) Business Days following receipt of a properly completed and supported
Disbursement Request. Upon approval, the Depository shall request Advances
from the Purchasers and upon receipt will disburse moneys from the Project Fund
to the Foundation.
(3)Using attached Schedule A to this Agreement, the Depository shall
keep and maintain adequate records pertaining to the Project Fund and all
disbursements therefrom, and after it has provided a certificate of payment of all
costs filed as provided in subsection (c) below, the Depository shall file a
statement of receipts and disbursements with respect thereto with the City and the
Foundation.
(c)Disposition Upon Completion of the Project. Upon the earlier of
(a) expending all funds in the Project Fund, or (b) completion of the Project, payment of
all costs and expenses incident thereto utilizing the Bond Proceeds shall be evidenced by
filing with the Depository a certificate signed by the Foundation Representative stating
that the Project has been fully completed.
Section 3.3 Cost of Issuance. All costs incurred in connection with the issuance of
the Bonds shall be paid by the Foundation.
Section 3.4 Rebate Fund. The Depository shall establish and maintain a separate
fund to be known as the “Rebate Fund,” which shall be continuously held, invested, expended
and accounted for in accordance with the provisions of the Tax Exemption Agreement; provided,
however, that the Rebate Fund need not be maintained if the Foundation and the Purchasers shall
have received an opinion of Bond Counsel to the effect that failure to maintain the Rebate Fund
shall not adversely effect the exclusion of interest on the Bonds from the federal gross income of
the owners thereof.
In maintaining the Rebate Fund, the Depository will keep and retain the records described
in the Tax Exemption Agreement to the extent such records relate to the Funds held by the
Depository, and the Depository will take such further action as the Foundation may direct in
order to comply with the rebate requirements contained in Section 148(f) of the Code.
Anything contained in this Loan Agreement to the contrary notwithstanding (i) the
Rebate Fund shall not be considered part of the funds pledged under this Loan Agreement, and
(ii) the Depository shall be permitted to transfer moneys on deposit in the Project Fund created
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by this Loan Agreement to the Rebate Fund in accordance with the provisions of the Tax
Exemption Agreement.
Section 3.5 Bond Fund. The Depository shall establish and maintain, so long as the
Bonds are outstanding, a separate fund to be designated the “Bond Fund.” The Depository shall
deposit all payments made by the Foundation pursuant to Section 2.4 hereof for payment of the
principal of and interest on the Note, accrued interest, if any, or premium, if any, and all other
moneys required to be deposited in the Bond Fund pursuant to any provision of this Loan
Agreement, including any funds received from prepayment of the Notes. The Depository shall
make disbursements from the Bond Fund pro rata to each Purchaser to satisfy the City’s
obligations under the Bonds. The Depository shall record each such payment of principal on the
attached Schedule B and shall also maintain ledger entries of each payment of interest on the
Bonds.
Moneys in the Bond Fund shall be expended solely for the payment of the principal of,
premium or Prepayment Fee, if any, and interest on the Bonds as the same mature and become
due or upon the redemption thereof prior to maturity. On each anniversary date of the Closing
Date, if any amounts remain in the Bond Fund, such amounts shall be applied to the outstanding
principal amount of the Bonds, provided that the Purchasers shall first carryover an amount not
to exceed the greater of: (i) the earnings on the Bond Fund for the immediately preceding bond
year; or (ii) one-twelfth of the principal and interest payments on the Bonds for the immediately
preceding bond year.
The City hereby authorizes and directs the Depository to withdraw sufficient funds from
the Bond Fund to pay Purchasers the principal of, premium, if any, and interest on the Bonds as
the same become due and payable, including, without limitation, any prepayment thereof.
After payment in full of the principal of, premium, if any, and interest on the Bonds (or
provision has been made for the payment thereof as provided in this Loan Agreement), and the
fees, charges and expenses of the Purchasers and any other amounts required to be paid under
this Loan Agreement, any amounts remaining in the Bond Fund shall be paid to the Foundation.
Section 3.6 Mandatory Conversion In the Event of a Determination of Taxability.
(a)The Bonds and Note are subject to mandatory conversion to Taxable
Bonds in the event of a Determination of Taxability. In any such case, the Foundation
shall, within sixty (60) days after the occurrence of the Determination of Taxability pay
all expenses of the City and the Purchasers accrued and to accrue due to said
Determination of Taxability.
(b)From and after the date of the Determination of Taxability, the Bonds and
the Notes shall bear interest at the Default Rate.
(c)After the date of the occurrence of a Determination of Taxability, the loan
payments pursuant to the Notes and the Bonds shall be recomputed to fully amortize the
then existing principal balance, with interest at the Default Rate over the then remaining
term of the Loan; subject, however, to interest rate adjustments as set forth in Section 2.3.
It is also understood that should a Determination of Taxability occur, the prepayment and
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indemnity provisions shall be amended to reflect the impact of the Default Rate as
opposed to the tax exempt interest rate.
Section 3.7 Additional Interest and Tax Indemnification.
(a)All monies paid by the Foundation to the Purchasers pursuant to Section
2.4 of this Agreement shall be held in the Bond Fund and shall be invested as provided in
Section 4.2 hereof. Except as to the extent provided in §1.148-3 of the arbitrage
regulations, all earnings on the investment of said moneys shall be retained in the Bond
Fund and applied to payments on the Bonds.
(b)Before making any payments hereunder to the Bondholder of Taxable
Bonds, the Purchasers will mail notice of the availability of these payments payable
thereunder to each such Bondholder at its address shown on the registration books of the
Purchasers.
(c)Upon furnishing proof satisfactory to the Purchasers that it was a
Bondholder of Bonds for any portion of the Inclusion Period, any such Bondholder shall
be paid from the Bond Fund, as additional interest, an amount equal to the positive
difference between (1) interest at the Default Rate in effect during the Inclusion Period
calculated on the principal amount of such Taxable Bonds for the period that such Person
owed such Taxable Bonds during the Inclusion Period, and (2) the amount of interest
actually paid on such Taxable Bonds to such owner during such period.
(d)No Bondholder of any Taxable Bonds may assign its rights to payment
under (c) above. All amounts payable under (c) above shall be paid only to the Person
holding such Bonds during the Inclusion Period or any portion thereof.
Section 3.8 Access to Records. Upon request of the Foundation, the Depository shall
provide the Foundation and its designated attorneys, accountants and representatives, access to
all records, documents, notes, memoranda and materials (whether in written, electronic or other
format) relating to the Project Fund, Bond Fund and Rebate Fund, including the right to make
copies or extracts thereof.
ARTICLE IV
SECURITY FOR DEPOSITS AND INVESTMENT OF FUNDS
Section 4.1 Investment of Moneys.
(a)Moneys held in the Funds shall be invested in Permitted Investments as
provided in the Tax Exemption Agreement and the Letter of Instructions. Such moneys
shall be separately invested and reinvested by the Foundation (and at the Foundation’s
direction) in Investment Securities which mature or are subject to redemption by the
holder prior to the date such funds will be needed; provided, however, that such moneys
shall not be invested in such manner as will violate the provisions of the Letter of
Instructions or the Code. Any such Investment Securities shall be held by or under the
control of the Depository and shall be deemed at all times a part of the Fund in which
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such moneys are originally held, and the interest accruing thereon and any profit realized
from such Investment Securities shall be credited to and accumulated in such Fund, and
any loss resulting from such Investment Securities shall be charged to such Fund.
(b)The Depository may make any and all investments permitted by the
provisions of this Section 4.1 through its own bond department or short-term investment
department.
Section 4.2 Record Keeping. The Depository shall send to the Foundation statements
or other records, in the ordinary course of business of the Purchasers, reflecting investments
made by the Purchasers pursuant to this Article. The Foundation shall maintain such records,
and permit the Depository with access to and copies of such records and statements, so long as
the Bonds are outstanding, and for a period of at least six (6) years after the payment of all of the
outstanding Bonds.
Section 4.3 Tax Covenants. The Depository agrees, upon receipt of a written letter or
opinion of Bond Counsel which sets forth such requirements, to comply with any statute,
regulation or ruling that may apply to it as Depository hereunder and which relates to reporting
requirements necessary to preserve the exclusion from federal gross income of the interest on the
Bonds. The Depository further agrees to comply with the requirements of any statute, regulation
or ruling relating to the preservation of the exclusion of interest on the Bonds from gross income
for federal income tax purposes.
ARTICLE V
WARRANTIES AND REPRESENTATIONS
Section 5.1 Foundation Warranties and Representations. The Foundation warrants
and represents to the City and the Purchasers that:
(a)Foundation Organization and Authority. The Foundation
(1)is a corporation duly organized, validly existing and in good
standing under the laws of the State of South Dakota as a non-profit corporation,
(2)has all requisite corporate power and authority and all necessary
licenses and permits to carry on its activities as now conducted and as presently
proposed to be conducted, and
(3)has been organized exclusively for charitable purposes and no part
of its net earnings inures to the benefit of any person, private stockholder or
individual within the meaning of Section 3(a)(4) of the Securities Act of 1933, as
amended.
(b)Pending Litigation. There are no proceedings pending, or to the
knowledge of the Foundation threatened, against or affecting the Foundation in any court
or before any governmental authority or arbitration board or tribunal which, if adversely
determined, would materially and adversely affect the Foundation or the Project,
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prospects or condition (financial or otherwise) of the Foundation, or the ability of the
Foundation to perform its obligations under this Loan Agreement. The Foundation is not
in default with respect to any order of any court, governmental authority or arbitration
board or tribunal.
(c)Borrowing Legal and Authorized. The consummation of the
transactions provided for in this Loan Agreement and compliance by the Foundation with
the provisions of this Loan Agreement, Tax Exemption Agreement and the Note:
(1)are within the corporate powers and have been duly authorized by
all necessary corporate action on the part of the Foundation; and
(2)will not result in any breach of any of the terms, conditions or
provisions of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any real or personal property of the
Foundation pursuant to any indenture, loan agreement or other instrument (other
than this Loan Agreement) to which the Foundation is a party or by which the
Foundation may be bound, nor will such action result in any violation of the
provisions of the Articles of Incorporation or Bylaws of the Foundation.
(d)No Defaults. No event has occurred and no condition exists which would
constitute an Event of Default. The Foundation is not in violation in any material respect,
and has not received notice of any claimed violation, of any term of any agreements,
charter instrument, by-law or other instrument to which it is a party or by which it may be
bound.
(e)Use of Proceeds of the Bonds. The Foundation will apply the proceeds
of the Loan from the City solely for the purpose of providing funds to finance the costs of
the Project and to reimburse for costs already incurred with respect to such Project. All
of such costs constitute “costs” of a “project” as defined in the Act. The Foundation will
not use any of the proceeds of the Note in any manner that would cause the Bonds to be
“arbitrage bonds” within the meaning of Section 148 of the Code.
(f)Compliance with Law. To the knowledge of the Foundation, the
Foundation is in compliance with all laws, ordinances, governmental rules and
regulations to which it is subject.
(g)The Project. The average maturity of the Bonds does not exceed one
hundred twenty percent (120%) of the reasonably expected economic life of the Project.
(h)Validity of the Note. The Note, when issued, delivered and paid for as
herein provided, will have been duly authorized and issued and will constitute valid and
binding obligations of the Foundation enforceable against it in accordance with its terms
and entitled to the benefits and security of this Loan Agreement, subject to any applicable
bankruptcy, reorganization, insolvency, moratorium or other law affecting the
enforcement of creditors’ rights and applicable principles of equity if equitable remedies
are sought.
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(i)Nature of Project. The Project consists, and at all times will consist, of
land or property of a character subject to the allowance for depreciation provided in
Section 187 of the Code. To the best of the Foundation’s knowledge and belief, no
member of the governing body of the City or other officer or employee of the City is
directly or indirectly interested in this Agreement, the Bonds, the Project or any contract,
agreement or job hereby contemplated to be entered into or undertaken.
(j)Tax-exempt Status. The Foundation is an organization described in
Section 501(c)(3) of the Code, exempt from the payment of federal income taxes under
Section 501(a) of the Code, and no revenues derived from any portion of the facilities
financed with the proceeds of the Bonds shall be derived from a “private business (non-
Section 501(c)(3)) use” within the meaning of Section 145 and related Sections,
including Section 141, of the Internal Revenue Code, or constitute “unrelated business
income,” within the meaning of Section 513(a) of the Code, except as specifically may be
contemplated by Section 145(a) of the Code in amounts that would not require the
interest on the Bond to become includible in gross income, for purposes of Federal
income taxation. Specifically, the Foundation certifies, represents and covenants that the
amount of space in the facilities financed with the proceeds of the Bonds (determined by
fair market value and square footage) to be used in any “private business use” (non-
Section 501(c)(3) use), within the meaning of Section 145(a)(2) and 141(b) of the Code,
together with the amount of space in the facilities financed with the Bond to be used in
any unrelated trade or business of the Foundation within the meaning of Section 511 of
the Code, shall not exceed, in the aggregate, an amount equal to three percent (3%) of the
total space in the facilities (as so determined) financed with the proceeds of the Bonds.
(k)Collateral and Related Matters. The Foundation is the sole legal and
equitable owner of the Pledged Property, having good, merchantable and insurable title or
rights thereto free and clear of any and all liens or encumbrances.
Section 5.2 City Warranties and Representations. The City warrants and represents
to the Purchasers that the City:
(a)Organization and Corporate Power.
(1)is a validly created and existing body politic and corporate of the
State of South Dakota, and
(2)has all requisite power and authority under the laws of the State of
South Dakota, including particularly the Act, to issue the Bonds for the purpose
for which they are issued, to loan the proceeds thereof to the Foundation as
evidenced by the Note, to enter into this Loan Agreement and the Tax Exemption
Agreement and to pledge and collaterally assign the Note to the Purchasers under
and pursuant to the provisions of this Loan Agreement as security for the payment
of the principal of and interest on the Bonds.
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(b)Legality of Transaction. The sale of the Bonds by the City and
compliance by the City with all of the provisions of this Loan Agreement, the Bonds and
the Loan Documents:
(1)are within the powers of the City, and
(2)are legal and will not conflict with, result in any breach by the City
of any of the provisions of, or constitute a default under, any existing law, court or
administrative regulations, decree or order or any agreement, indenture, mortgage,
lease or other instrument to which the City is a party or by which it may be bound.
(c)Pending Litigation. There are no proceedings pending or, to the
knowledge of the City, threatened against or affecting the City in any court or before any
governmental authority or arbitration board or tribunal which involve the possibility of an
unfavorable decision, ruling or finding which would materially and adversely affect (1)
the transactions contemplated hereby or the validity of the Bonds, this Loan Agreement,
the other Loan Documents or any agreement or instrument to which the City is a party
and which is used or contemplated for use in the consummation of the transactions
contemplated hereby, or (2) the Federal tax exempt status of the interest on the Bonds.
(d)Authorization of Transaction. The City has duly authorized: (1) the
borrowing by the City to be evidenced by the Bonds upon the terms set forth herein; (2)
the Loan of the proceeds of the Bonds to the Foundation; (3) the pledging and assigning
by the City pursuant to the provisions of this Loan Agreement of the Note for the benefit
and security of the Bonds; (4) the execution, delivery and receipt of the Bonds, the Loan
Documents and any and all such other agreements and documents as may be required to
be executed, delivered and received by the City in order to carry out, give effect to and
consummate the transactions contemplated hereby; and (5) the effectuation and
consummation of the transactions contemplated by the Loan Documents.
(e)Validity of the Bonds. The Bonds, when issued, delivered and paid for as
herein provided, will have been duly authorized and issued and will constitute valid and
binding obligations of the City enforceable in accordance with their terms and entitled to
the benefits and security of this Loan Agreement (subject to the limitations referred to in
Section 2.9 and subject to any applicable bankruptcy, reorganization, insolvency,
moratorium or other law affecting the enforcement of creditors’ rights generally or state
agencies, municipalities or authorities, such as the City, from time to time in effect) and
subject to applicable principles of equity if equitable remedies are sought.
(f)Use of Proceeds. The City will apply the proceeds from the sale of the
Bonds to the Loan to the Foundation under and pursuant to this Loan Agreement which
the Foundation represents and warrants will be used to finance the costs of the Project.
So long as the Bonds remain outstanding, and except as may be authorized by this Loan
Agreement, the City will not issue or sell any bonds, Notes or other obligations, other
than the Bonds sold hereunder, the interest or principal of which will be payable from
payments upon the Note and other amounts payable by the Foundation to the City under
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this Loan Agreement or which shall be secured by any pledge or assignment or other lien
upon the Note.
Section 5.3 Representations of the Purchasers. Each of the Purchasers represents to
the City and the Foundation that it is acquiring the Bonds to be acquired by it for its own account
in the ordinary course of its commercial banking business with its general corporate assets and
not with the assets of any separate account in which any employee benefit plan has any interest,
and with no present intention of distributing or reselling the Bonds to be acquired by it or any
part hereof, provided that the Purchasers may grant participation in the Bonds to be acquired by
it to any bank, savings institution, trust company or other participant (a “Participant”) so long as
such participation is registered through a book entry system maintained by the Purchasers, as
agent for the City for purposes of Section 149 of the Code. Each of the Purchasers, by its grant
of a participation to any Participant, shall be deemed to have represented to the City and the
Foundation that the Participant acquired its participation for its own account for investment with
its general corporate assets and not with the assets of any separate account in which any
employee benefit plan has any interest and with no present intention of distributing or reselling
the same. It is understood that this representation is made without prejudice, however, to the
right of the Purchasers and any participant at all times to sell or otherwise dispose of all of the
Bonds to be acquired by them under a registration statement under the Securities Act and under
applicable state securities laws, or under an exemption from registration available under the
Securities Act or such laws. Each of the Purchasers represents to the City and the Foundation
that it has received, and each Participant acquiring a participation in the Bonds will have
received, all information the Purchasers or, as the case may be, the Participant deems necessary
to evaluate and make an informed investment decision with respect to its purchase of the Bonds
or, as the case may be, a participation in the Bonds, and that no Purchaser has relied and no
Participant acquiring a participation in the Bonds will have relied upon the City for any
information or data with respect to the Foundation, its condition, financial or otherwise, or the
Project.
ARTICLE VI
CLOSING CONDITIONS; CONDITIONS TO DISBURSEMENTS
Section 6.1 Initial Disbursements; Closing. The obligation of the City to make the
Loan to the Foundation provided for in Section 2.1 and the obligation of the Purchasers to
purchase the Bonds from the City provided for in Section 2.1 shall be subject to the following
conditions precedent:
(a)Foundation Closing Certificate. The warranties and representations
contained in Section 5.1 shall (except as affected by the transactions contemplated by this
Loan Agreement) be true in all material respects on the Closing Date, and the Foundation
shall have provided a certificate in form and substance satisfactory to the Purchasers and
the City, which certificate shall be dated as of the Closing Date and be signed by the
President of the Foundation.
(b)City Closing Bond Certificate. The warranties and representations
contained in Section 5.2 shall (except as affected by the transactions contemplated by this
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Loan Agreement) be true in all material respects on the Closing Date and the City shall
have provided a certificate in form and substance satisfactory to the Purchasers and Bond
Counsel shall have received a certificate from the Foundation to establish that the Bonds
are not “arbitrage bonds” within the meaning of Section 148 of the Code, which
certificate shall be dated as of the Closing Date and be signed by an official of the City
responsible with others for the issuance of the Bonds.
(c)Tax Agreement. The Foundation, City and Depository shall execute and
deliver the Tax Agreement.
(d)Opinions of Counsel. The City and the Purchasers shall have received
the closing opinions of counsel for the City Attorney, counsel to the Foundation, and
Bond Counsel, dated in each case as of the Closing Date, which opinions are acceptable
to the City and the Purchasers.
(e)Other Documents. On or before the issuance of the Bonds, the
Purchasers shall have received any other documents reasonably requested by the
Purchasers to be delivered on the Closing Date.
(f)Proceedings Satisfactory. All proceedings taken in connection with the
borrowings by the Foundation, the issuance of the Note and the issuance and sale of the
Bonds and all documents and papers relating thereto shall be satisfactory to the City, the
Purchasers and their respective counsel.
(g)No Material Adverse Change. There shall not have occurred any
change, which in the sole judgment of the Purchasers is materially adverse, in the
condition (financial or otherwise) or operations of the Foundation or in the Project or the
prospects for the timely and satisfactory completion of the construction of the
Improvements and operation of the Project.
Section 6.2 Subsequent Disbursements. The obligation of the Depository to make
each Disbursement (including the initial Disbursement) from the Project Fund is subject to the
following conditions precedent:
(a)No Event of Default shall have occurred and be continuing or will exist
upon the making of such Disbursement;
(b)The representations and warranties contained in this Agreement shall be
true and correct with the same force and effect as if made on the date of such
Disbursement;
(c)The Foundation shall have submitted a Disbursement Request;
(d)There shall not have occurred any change, which in the sole judgment of
the Purchasers is materially adverse, in the condition (financial or otherwise) or
operations of the Foundation or in the Project or the prospects for the timely and
satisfactory completion of the construction of the Improvements and operation of the
Project; and
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(e)Such other additional documents as may be requested by the Purchasers.
ARTICLE VII
FOUNDATION’S AFFIRMATIVE COVENANTS
The Foundation covenants that on and after the date of issue of the Bonds and the Note,
so long as the Bonds and Note are outstanding, and so long as the Purchasers remains committed
to extend credit to the Foundation pursuant hereto, or any liabilities (whether direct or
contingent, liquidated or un-liquidated) of Foundation to Purchasers under any of the Loan
Documents remain outstanding, and until payment in full of all obligations of the Foundation
subject hereto, the Foundation shall:
Section 7.1 Payment of Taxes and Claims. Pay, before they become delinquent all
taxes, assessments and governmental charges or levies imposed upon it or any of its real
property.
Section 7.2 Financial Records. Keep true books of record and accounts in which full
and correct entries will be made of all of its business transactions all in accordance with GAAP.
Section 7.3 Foundation Existence and Rights. Do, or cause to be done, all things
necessary to preserve and keep in full force and effect its existence, rights and franchises, except
as otherwise permitted by this Agreement.
Section 7.4 Compliance With Law. Comply with all laws, ordinances, governmental
rules and regulations to which it is subject and will obtain any licenses, permits, franchises or
other governmental authorizations necessary to the conduct of its activities, which violations or
failure to obtain might materially adversely affect the condition (financial or otherwise) of the
Foundation.
Section 7.5 Payment of Note and Maintenance of Office. Punctually pay or cause
to be paid the principal and interest to become due in respect of the Note according to the terms
thereof and will maintain an office in the State of South Dakota where notices, presentations and
demands in respect of this Loan Agreement or the Note may be made upon it.
Section 7.6 Indemnification of City and Purchasers. Shall indemnify and save the
City and the Purchasers harmless against any loss, liability or expense, including reasonable
attorneys’ fees, resulting from all claims by or on behalf of any Person, firm or Foundation
arising from the conduct or management of, or from any work or thing done on, the Project
during the term of the loan, and against and from all claims arising during the term of the loan
from (a) any condition of the Project caused by the Foundation, (b) any breach or default on the
part of the Foundation in the performance of any of its obligations under this Loan Agreement,
(c) any contract entered into in connection with the acquisition, construction and installation of
the Project, (d) any act of negligence or misconduct of the Foundation or of any of its agents,
contractors, servants, employees or licensees, and (e) any act of negligence or misconduct of any
assignee or lessee of the Foundation, or of any agents, contractors, servants, employees or
licensees of any assignee or lessee of the Foundation. Foundation. The Foundation shall
indemnify and save the City and the Purchasers harmless from and against all costs and expenses
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incurred in or in connection with any action or proceeding brought thereon, and upon notice from
the City or the Purchasers, the Foundation shall defend them or either of them in any such action
or proceeding. Nothing contained herein shall be deemed as an indemnification by the
Foundation or Purchasers for any act on said Purchasers or Purchasers’ part which is the cause or
creation of the liability.
In the event the issuance of the Bonds shall be deemed by a court of competent
jurisdiction to be invalid or unconstitutional, the result of which is to render this Loan Agreement
and any other corresponding agreements or collateral documents executed in furtherance of the
Agreement and the underlying Bonds issue either void or voidable, the parties agree that City
shall have no obligation or liability to Foundation or Purchasers for any loss or damage, whether
direct or indirect, incurred as a result of such ruling. It is specifically agreed and understood by
and amongst the parties that Foundation and Purchasers assume all risk and liability of whatever
nature in that regard. To the extent that this provision may be deemed to be in conflict with any
other provision of Agreement or any other corresponding agreement or collateral document, this
provision shall be deemed controlling.
Section 7.7 Financial and Other Information Reporting. Shall deliver to each of
the Purchasers:
(a)as soon as available and in any event on or before ________ of each Fiscal
Year, the Foundation’s annual audited financial statements prepared by a certified public
accountant in form and manner acceptable to Purchasers;
(b)contemporaneous with each annual financial statement of the Foundation
required hereby, the Foundation shall submit to the Purchasers and the Purchasers a
certificate of the president, chief financial officer or other officer or representative of the
Foundation satisfactory to the Purchasers, that the financial statements are accurate and
that there exists no Event of Default nor any condition, at or event which with the giving
of notice or the passage of time or both would constitute an Event of Default;
(c)as soon as available and in any event within forty-five days of the end of
each quarter, the financial statements for the Foundation, prepared by the Foundation
together with a certification as to (1) the amount of Pledges received to date in the Pledge
year and (2) the outstanding uncollected Pledges that the Foundation reasonably
anticipates will be received for the current Pledge Year and each succeeding Pledge Year
through and including the Pledge Year that ends on December [15], 2025; and
(d)from time to time such additional information regarding the financial
position, results of operations, business or prospects of the Foundation as the City or
Purchasers may reasonably request
Section 7.8 Pledges Covenant.The Foundation covenants and agrees that so long
as any Bonds remain outstanding, it shall cause the aggregate amount of Pledges to exceed the
outstanding principal amount of the Bonds.
Section 7.9 Compliance With Other Agreements. Comply with and avoid any
default under or with respect to any agreement relating to any of its facilities, including the
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Project, which default would materially and adversely affect the Project or the condition
(financial or otherwise) of the Foundation.
Section 7.10 Prepayment for Compliance With Maturity Limitations. Prepay the
Note to the extent necessary, in the opinion of Bond Counsel (which counsel and opinion,
including without limitation the scope, form, substance and other aspects thereof, are acceptable
to the Purchasers), to cause the average maturity of the Bonds to be no more than 120% of the
average reasonably expected economic life of the facilities being financed with the proceeds of
the Bonds, if upon completion of the Project any recalculation of the average reasonably
expected economic life of the Project demonstrates that the average maturity of the Bonds
exceeds 120% of the average reasonably expected economic life of the Project.
Section 7.11 Ownership and Operation of the Facilities. The Foundation shall
immediately notify the Purchasers in the event that the Facilities are no longer owned and
operated by the Board of Regents of the South Dakota State University or if the Facilities are
used by any Person for a “private business use” within the meaning of the Code. The Foundation
acknowledges, recognizes and agrees that in the event the Facilities are no longer owned and
operated by the Board of Regents, or if the Facilities are used by any Person for a “private
business use”, then the Bonds may, upon the opinion of Bond Counsel, be automatically
converted to Taxable Bonds and shall bear interest at the Default Rate.
Section 7.12 Tax Covenants. The Foundation hereby acknowledges and confirms its
obligations under Section 148 of the Internal Revenue Code of 1986, as amended, and
regulations thereunder. Specifically, the Foundation agrees to comply with the rebate
requirements imposed under Section 148(f) and pertinent regulations, including the requirement
to make annual (or other periodic) calculations of the amount subject to rebate thereunder, and to
maintain records of such determinations until six years after the retirement of the Bond, and the
requirement to make in the minimum amounts required, all required rebate payments to the
United States not later than sixty (60) days after each installment computation date, to and until
the date which is sixty (60) days after the final computation date, when one hundred percent
(100%) of such rebate payments due and owning shall be payable in full. Any expenses incurred
in connection with the making of rebate computations shall be borne by the Foundation. If the
Foundation shall fail to pay the full amount of any rebate required to be paid by the Foundation
when such deposit is due, the City or the Purchasers may make payment to the United States, and
such payment shall be an advance under this Loan Agreement. In construing the Foundation’s
obligations hereunder, all terms used in this paragraph (a) shall have the meanings provided in
Section 148(f) and regulations thereunder. The Foundation agrees to make all required rebate
payments to the United States, as and when required, and such payments shall constitute
additional Loan Payments under Section 2.3 hereof.
ARTICLE VIII
FOUNDATION’S NEGATIVE COVENANTS
The Foundation covenants that on and after the date of issue of the Bonds and the Note,
so long as the Bonds and Note are outstanding, and so long as the Purchasers remains committed
to extend credit to the Foundation pursuant hereto, or any liabilities (whether direct or
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contingent, liquidated or un-liquidated) of Foundation to Purchasers under any of the Loan
Documents remain outstanding, and until payment in full of all obligations of the Foundation
subject hereto, the Foundation shall not, without the prior written consent of the Purchasers,
which will not be unreasonably withheld:
Section 8.1 Arbitrage. Take any action or fail to take any action with respect to the
investment of the proceeds of any Bonds or the Note, with respect to the payments derived from
the Bonds or Note or hereunder or with respect to the purchase of other City obligations which
may result in constituting the Bonds as “arbitrage bonds” within the meaning of such term as
used in Section 148 of the Code.
Section 8.2 Negative Pledge. Transfer, convey, grant a security interest or other
encumbrance or otherwise pledge the Pledged Property to any other Person, other than the
pledge and assignments permitted by Article XI.
ARTICLE IX
COUNTY COVENANTS
The City covenants that on and after the date of issue of the Bonds and the Note, so long
as the Bonds and Note are outstanding, and so long as the Purchasers remains committed to
extend credit to the Foundation pursuant hereto, or any liabilities (whether direct or contingent,
liquidated or un-liquidated) of Foundation to Purchasers under any of the Loan Documents
remain outstanding, and until payment in full of all obligations of the Foundation subject hereto:
Section 9.1 Payment of Bonds. Subject to the limited source of payment hereinafter
referred to, the City will punctually pay or cause to be paid the principal and interest to become
due in respect of the Bonds according to the terms thereof. The principal and interest on the
Bonds is payable solely from payments by the Foundation upon the Note and under this Loan
Agreement and the Pledged Property. The Note is hereby pledged and deposited with the
Purchasers pursuant to this Loan Agreement.
Section 9.2 City’s Duties. The City covenants and agrees to perform, abide by and to
be governed and restricted by each and all of the terms, provisions, restrictions, covenants and
agreements of the City set forth in this Loan Agreement and the Bonds and in each and every
supplement hereto and thereto or amendment hereof or thereof which may at any time or from
time to time be executed and delivered by the parties hereto or thereto, as the case may be, or
their successors and assigns.
Section 9.3 Warranty of Title. The City has full right, power and authority to pledge
and collaterally assign the Note to the Purchasers for the uses and purposes set forth in this Loan
Agreement.
Section 9.4 Further Assurances. The City will execute, acknowledge and deliver all
and every further act, deed, conveyance, transfer and assurance necessary or proper for the better
assuring of the pledge and assignment to the Purchasers of the Note. The Foundation agrees to
pay all expenses incurred by the City in connection with the performance by the City of its
agreements under this Loan Agreement.
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Section 9.5 Arbitrage. The City will not take any action or fail to take any action
with respect to the investment of the proceeds of the Bonds or with respect to the payments
derived from the Note or hereunder which may result in constituting the Bonds “arbitrage bonds”
within the meaning of such term as used in Section 148 of the Code.
Section 9.6 Code Covenants. The City expect that the City (together with any
subsidiary entities under the control of the City and any entities that issue obligations on behalf
of the City) will not issue tax-exempt obligations in calendar year 2017 which, along with the
Bonds, would aggregate more than $10,000,000. Accordingly, the Bonds are hereby designated
as “qualified tax-exempt obligations” within the meaning of Section 265(b)(3)(B) of the Code.
The City agrees to comply with all provisions of the Code which, if not complied with by the
City, would cause the interest on the Bonds to become subject to federal income taxation. In
furtherance of the foregoing provisions, but without limitation, the City agrees: (a) through the
officers of the City, to make such further specific covenants, representations as shall be truthful,
and assurances as may be necessary or advisable; and (b) to comply with all representations,
covenants and assurances contained in the Tax Exemption Agreement.
Section 9.7 No Warranty of Condition or Suitability by the City; Exculpation and
Indemnification. The City makes no warranty, either express or implied, as to the condition of
the Project or that it will be suitable for the Foundation’s purposes or needs.
ARTICLE X
DEFEASANCE AND PAYMENT
Section 10.1 Defeasance. Subject to Section 13.8, if the Foundation shall pay and
discharge with funds or provide, in a manner satisfactory to the City, for the payment and
discharge of the whole amount of the principal of, premium, if any, and interest on the Note at
any time outstanding, and shall pay or cause to be paid all other sums payable hereunder, or shall
make arrangements satisfactory to the City for such payment and discharge; then and in that case
all Pledged Property, rights and interest conveyed or assigned or pledged shall revert to the
Foundation, and the estate, right, title and interest of the City therein shall thereupon cease,
terminate and become void; and this Loan Agreement, and the covenants (excluding the
covenant in Section 2.4 (c)) of the Foundation contained herein, shall be discharged and the City
in such case on demand of the Foundation and at its cost and expense, shall execute and deliver
to the Foundation a proper instrument or proper instruments acknowledging the satisfaction and
termination of this Loan Agreement, and shall convey, assign and transfer or cause to be
conveyed, assigned or transferred, and shall deliver or cause to be delivered to the Foundation,
all Pledged Property, including money then held by the City other than money deposited with the
Purchasers for the payment of the principal and premium, if any, or interest on the Note together
with the Note marked paid or canceled.
ARTICLE XI
SECURITY AGREEMENT AND RELATED OBLIGATIONS
Section 11.1 Granting Clause - Foundation. In consideration of the purchase and
acceptance of the Note and the loan of the funds evidenced thereby, and the purchase of the
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Bonds by the Purchasers and of other good and valuable consideration, the receipt of which is
hereby acknowledged, and in order to secure the payment and performance of the Note and the
other covenants of the Foundation hereunder and under the other Loan Documents, the
Foundation does hereby pledge, assign and grant a security interest to the City and its successors
and assigns forever, in all of the Pledged Property.
Section 11.2 Granting Clause - City. In consideration of the purchase of the Bonds by
the Purchasers and of other good and valuable consideration, the receipt of which is hereby
acknowledged and in order to secure the payment of the Bonds and all other amounts that may
be due and owing in respect thereof, the City hereby does grant, pledge and collaterally assign to
the Purchasers a security interest in and to all of the City’s right, title and interest in and to the
following described property: (i) all of the City’s right, title and interest in the Note, including
all payments, revenues and receipts derived by the City from the Foundation with respect to the
Project; (ii) all of the City’s right, title and interest in the Pledged Property, and (iii) all moneys
and securities from time to time held by or on behalf of the City under this Loan Agreement, and
any other real and personal property of every kind and nature from time to time delivered,
pledged, assigned or conveyed by the Foundation as security for the performance of its
obligations hereunder and under the Note (collectively referred to herein as the “Assigned
Collateral”).
Section 11.3 Authorization. The Foundation hereby authorizes the City and the
Purchasers to file a financing statement with the Secretary of State to perfect the security interest
in the Pledged Property granted pursuant to this Loan Agreement, without its signature thereon,
and to take such further actions as may be necessary or appropriate with respect thereto,
including filing continuation statements or amendments to any financing statement. The
Foundation agrees that, upon the reasonable request of the Purchasers, and to execute and deliver
control agreements in form(s) acceptable to the Purchasers with respect to any deposit accounts
maintained at financial institutions other than the Purchasers.
Section 11.4 Change in Jurisdiction. The Foundation shall not change its name or
change its jurisdiction of organization, whether by reincorporation or otherwise, without at least
sixty (60) days prior written notice to the City and the Purchasers, or the Foundation’s Internal
Revenue Service tax identification number, and in connection therewith shall take such action as
the Purchasers may request to maintain its perfection in the Collateral. Foundation’s Internal
Revenue Service tax identification number is 46-0273801.
ARTICLE XII
EVENTS OF DEFAULT
Section 12.1 Nature of Events. An “Event of Default” shall exist if any of the
following occurs and is continuing;
(a)Principal and Interest Payment on Note. The Foundation fails to make
the payment of principal of or interest on the Note on or before the date such payment is
due; or
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(b)Covenant Defaults. The Foundation fails to comply with any other
provision of this Loan Agreement or any other Loan Document and such failure
continues for more than thirty (30) days after written notice thereof to the Foundation by
the City or the Purchasers; or
(c)Warranties or Representations of Foundation. Any warranty,
representation or other statement by or on behalf of the Foundation contained in this Loan
Agreement, any other Loan Document or in any instrument furnished in compliance with
or referred to therein is false or misleading, when made, in any material respect, and shall
not be remedied by the Foundation within thirty (30) days after notice thereof from
Purchasers or the City to the Foundation; or
(d)Involuntary Bankruptcy Proceedings Against Foundation. A receiver,
liquidator or trustee of the Foundation or of any of its real or personal property is
appointed by court order and such order remains in effect for more than sixty (60) days;
or the Foundation is adjudicated bankrupt or insolvent; or any of its real or personal
property is sequestered by court order and such order remains in effect for more than
sixty (60) days; or a petition is filed against the Foundation under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation
law of any jurisdiction, whether now or hereafter in effect, and is not dismissed within
sixty (60) days after such filing; or
(e)Voluntary Petitions by Foundation. The Foundation files a petition in
voluntary bankruptcy or seeks relief under any provision of any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation
law of any jurisdiction, whether now or hereafter in effect, or consents to the filing of any
petition against it under such law; or
(f)Assignments by Foundation for Benefit of Creditors, etc. The
Foundation makes an assignment for the benefit of its creditors or admits in writing its
inability to pay its debts generally as they become due, or consents to the appointment of
a receiver, trustee or liquidator of the Foundation, or of all or any part of its real or
personal property; or
Section 12.2 Remedies on Default. If an Event of Default has occurred, the Purchasers
shall have the following rights and remedies:
(a)Acceleration of Note and Bonds. When any Event of Default has
occurred and is continuing, the Purchasers may call said Bonds after giving written notice
to the City of its intent to do so, by notice in writing sent by registered mail to the
Foundation, declare the principal of and any accrued interest on the Note and Bonds to be
immediately due and payable without further demand, presentment, protest or notice of
any kind; and thereupon the Note and Bonds, including both principal and accrued
interest, shall become immediately due and payable, and the Foundation agrees to pay the
entire principal of and interest accrued on the Note and the Bonds, and the Foundation
agrees to pay to the City and the owners of the Bonds all reasonable and necessary costs
and expenses, including attorneys’ fees, incurred by them in the collection of the Note
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and Bonds. Notwithstanding the foregoing, upon the occurrence of an Event of Default
described in Section 12.1(d) or Section 12.1(e), the Bonds shall become automatically,
without notice or any other action by the Purchasers or the Bondholders, immediately due
and payable.
(b)Other Action. In the event the Foundation does not promptly make
payments as provided in Section 12.2(a), the Purchasers may take whatever action at law
or in equity as may appear necessary or appropriate to collect the amounts due and
thereafter to become due, or to enforce performance and observance of any obligation,
agreement or covenant of the Foundation under this Loan Agreement, or to otherwise
exercise all remedies available pursuant to this Loan Agreement, the Note, the Bonds, or
any other instrument executed in connection with the issuance of the Bonds; provided,
however, that the City shall have no pecuniary liability in the event such action is taken
by or on behalf of the Purchasers.
Section 12.3 Notice of Default. When any Event of Default has occurred, the
Foundation agrees to give notice within fifteen (15) days of such Event of Default to the City and
to the Purchasers; such notice to be in writing and sent by registered or certified mail or by
telegram.
Section 12.4 Nonwaiver. No course of dealing on the part of the City, the Purchasers
or any Bondholder, nor any delay or failure on the part of the City, the Purchasers or the
Bondholders to exercise any right shall operate as such right or otherwise prejudice the City’s or
the rights, powers and remedies of the City or the Bondholders.
Section 12.5 Annulment of Acceleration of Note and Bonds. In the event that the
principal of and accrued interest on the Note and Bonds have been declared due and payable
pursuant to Section 12.2(a) or Section 12.2(b), the Purchasers may, by written instrument filed
with the City and the Foundation, rescind and annul such declaration and the consequences
thereof, provided that, at the time such declaration is annulled and rescinded:
(a)no judgment or decree has been entered for the payment of any monies
due pursuant to the Note or the Bonds or this Loan Agreement;
(b)all arrears of interest upon the Note and the Bonds and all other sums
payable under the Note and the Bonds and under this Loan Agreement (except any
principal and interest on the Note and the Bonds which has become due and payable by
reason of such declaration under Section 12.2(a) or Section 12.2(b)) shall have been duly
paid; and
(c)each and every other Default and Event of Default shall have been waived
or otherwise made good or cured;
and provided further, that no such rescission and annulment shall extend to or affect any
subsequent Default or Event of Default or impair any right consequent thereon.
Section 12.6 Remedies Cumulative. The rights of the City or the Purchasers under
this Agreement and the other Loan Documents, and all other agreements, shall be cumulative.
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The City and the Purchasers shall have all rights and remedies not inconsistent herewith as
provided under law or in equity, and no exercise by the Purchasers of one right or remedy shall
be deemed an election, and no waiver by the Purchasers of any Default or Event of Default shall
be deemed a continuing waiver. No delay by the Purchasers shall constitute a waiver, election,
or acquiescence by it, and no waiver shall be effective unless in a written document signed by the
Purchasers and then it shall be effective only in the specific instances and for the specific
purpose for which it was given. The Foundation expressly agrees that this Section 12.6 may not
be waived or modified by the Purchasers by course of performance, conduct, estoppel or
otherwise.
ARTICLE XIII
MISCELLANEOUS
Section 13.1 Notices.
(a)All communications under this Loan Agreement, the Note, or the Bonds
shall be in writing and shall be mailed by first class mail, postage prepaid, addressed as
follows:
If to the Foundation, at:South Dakota State University Foundation
Attn: President
815 Medary Avenue
P.O. Box 525
Brookings, SD 57007
If to the City, at:City of Brookings,
520 3rd St., Suite 230
Brookings, SD 57006
If to First Premier, at:FIRST PREMIER BANK
601 S. Minnesota Ave
P.O. Box ___
Sioux Falls, SD 57104
If to First Bank & Trust, at FIRST BANK &TRUST
P.O. Box
Brookings, SD ____
or at such other place as any such party may designate by notice duly given in accordance
with this Section. Copies of all notices or other communications sent to the Foundation,
the Purchasers or the Purchasers under this Loan Agreement shall also be sent to the City
at its address and in the manner provided for in this Section.
(b)Any notice so addressed and mailed by registered or certified mail shall be
deemed to be given when so mailed.
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Section 13.2 Reproduction of Documents. This Loan Agreement and all documents
relating thereto, including, without limitation, (a) consents, waivers and modifications which
may hereafter be executed, (b) documents received by the City, the Purchasers or the Purchasers
at the closing (except the Note and the Bonds themselves), and (c) financial statements,
certificates and other information previously or hereafter furnished to the City, may be
reproduced by any party hereto by any photographic, photostatic, microfilm, micro-card,
miniature photographic or other similar process and any party hereto may destroy any original
document so reproduced. Each of the parties hereto agrees and stipulates that any such
reproduction shall be admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such reproduction was
made by any party hereto in the regular course of business) and that any enlargement, facsimile
or further reproduction of such reproduction shall likewise be admissible in evidence.
Section 13.3 Survival. All warranties, representations and covenants made by the
Foundation or the City herein or on any certificate or other instrument delivered by it or on its
behalf under this Loan Agreement shall survive the closing and the issuance and delivery and
payment of the Note and the Bonds.
Section 13.4 Successors and Assigns. This Loan Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties. This Loan Agreement
may not be assigned by the Foundation without the prior written consent of the Purchasers.
Section 13.5 Amendment and Waiver. This Loan Agreement and any documents
executed hereunder may be amended and the observance of any term of this Loan Agreement
may be waived with (and only with) the written consent of the Foundation, the City, the
Purchasers and the Purchasers.
Section 13.6 Immunity of Directors, Officers and Employees. No recourse shall be
had upon any obligation, covenant or agreement in this Loan Agreement contained against any
past, present or future officer, commissioner or employee of the City, or of any successor, as
such, either directly or through the City or any successor, under any rule of law or equity, statute
or constitution, or by the enforcement of any assessment or penalty or otherwise. To the extent
that immunity is afforded by statute, the directors, officers and employees of the Foundation
shall also not be liable for any obligation hereunder. All such liability of any such directors,
officers or employees, as such, is hereby expressly waived and released as a condition of and as
consideration for the for the execution of this Loan Agreement.
Section 13.7 Counterparts. This Loan Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together shall constitute one and
the same instrument. All of the parties hereto may sign the same counterpart or any one or more
of the parties hereto may sign separate counterparts. This Loan Agreement shall become
effective when the Purchasers has signed a counterpart which has been executed by the
Foundation and the City.
Section 13.8 Reinstatement. This Loan Agreement and the other Loan Documents
shall remain in full force and effect and continue to be effective against the Foundation should
any petition be filed by or against the Foundation for liquidation or reorganization, should the
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Foundation become insolvent or make an assignment for the benefit of creditors or should a
receive or trustee be appointed for all or any significant part of the Foundation’s property and
assets, and shall continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Secured Obligations secured by this Loan Agreement is,
pursuant to applicable law, rescinded or reduced in amount or must otherwise be restored or
returned by any obligee of the indebtedness secured hereby, whether as a “voidable preference,”
“fraudulent conveyance” or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Secured Obligations shall be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
IN WITNESS WHEREOF, the parties hereto have executed this Loan Agreement as of
the day and year first written above.
[Remainder of page intentionally left blank.]
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SOUTH DAKOTA STATE UNIVERSITY
FOUNDATION
By
Its President
ATTEST:
Its Secretary
CITY OF BROOKINGS, SOUTH DAKOTA
By
Its Mayor
ATTEST:
City Clerk
FIRST PREMIER BANK,
as a Purchaser and as Depository
By
Its Vice-President
FIRST BANK & TRUST,
as a Purchaser
By
Its ____________________________________
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EXHIBIT A
The Project includes two structures located on the campus of South Dakota State
University (which is the owner of the land), the street address of which is Administration Ln,
Brookings, South Dakota, and on certain adjacent land, all of which is generally described as
bounded on the North by SD Bypass 14, on the East by 22nd Avenue, on the South by 8th Street,
and on the West by Medary Avenue, all within the City of Brookings, South Dakota. The 2017
Project is currently expected to consist generally of the following:
(i)A major expansion and remodeling of the South Dakota State University
Performing Arts Center, including construction, equipping and furnishing of such facility;
and
(ii)The construction, equipping and furnishing of a practice gym facility adjacent to
the Stanley Marshall HPER academic and athletic facility.
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EXHIBIT B
Disbursement Request
First Premier Bank
Attention: ____________
Sioux Falls, South Dakota
Re:City of Brookings
Economic Development Revenue Bonds, Series 2017
(South Dakota State University Foundation Project)
Project Fund Disbursement Request: Requisition No. 1
This Project Fund Disbursement Request (this “Written Request” or “Requisition”) is
submitted pursuant to the provisions of Section 3.2 of that certain Loan and Security Agreement
dated as of December __, 2017 between City of Brookings (the “Issuer”) and South Dakota State
University Foundation (the “Foundation”) (the “Agreement”). The terms used herein have the
same meanings as when used in the Agreement except where the context otherwise requires.
The Foundation hereby requests that the Depository pay or reimburse the Foundation for
costs of the Project summarized in Schedule A attached hereto, such payment or reimbursement
to be made from funds held in the Project Fund. In support of this Written Request, the
Company states as follows:
(a)This Written Request is requisition number __;
(b)This Written Request relates to a withdrawal of money from the Project
Fund to pay or reimburse the Company for payment of Qualified Project Costs as defined
in the Tax Regulatory Agreement relating to the Bonds;
(c)The person, firm or corporation to whom payment or reimbursement is
due is listed on the attached Schedule A;
(d)The description of the item for which payment or reimbursement is
requested, the amount to be paid or reimbursed and the general classification of the costs
to be paid or reimbursed is set forth in the attached Schedule A;
(e)The amounts referred to in paragraph (c) and (d) above have been made or
incurred by the Foundation for or in connection with the Project and constitute Qualified
Project Costs;
(f)Each item of such costs is a proper charge against the Project Fund and
has not heretofore been paid or reimbursed from the proceeds of the Bonds;
(g)No part thereof was included in any other Written Requests previously
filed with the Depository under the provisions of the Agreement;
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(i)The payment or reimbursement for such item described in this Written
Request (i) will not cause the weighted average maturity of the Bonds to exceed 120% of
the weighted average of the reasonably expected economic life of the Bond Financed
Property as defined in the Tax Regulatory Agreement relating to the Bonds unless the
Foundation first certifies to the Depository and the Issuer in a written statement that it
expects to be able to shorten the average maturity of such Bonds to not more than 120%
of the average reasonably expected economic life of such Bond Financed Property
pursuant to Section 7.10 of the Agreement, (ii) the payment or reimbursement for such
item will not result in the Project being used for any purpose prohibited by the
Agreement, and (iii) will not result in the Project or any portion thereof not being located
on real property owned by or leased to the University;
(j)No items for which payment or reimbursement is sought are located at any
location which was not described in the notice of public hearing published in connection
with the issuance of the Bonds or exceed the principal amounts set forth in such notice of
public hearing for those items, taking into account the amount of Bond proceeds (if any)
previously applied to the payment or reimbursement of such;
(k)The withdrawal and use of the Project Fund moneys for the purpose
intended, as described in this Written Request, will not cause any of the representations
or certifications contained in the Tax Regulatory Agreement to be untrue or incomplete
and the Company understands and agrees that the item to be so paid or reimbursed shall
be considered to be Bond Financed Property and part of the Project for all purposes of the
Agreement and is subject to the provisions, covenants and terms of the Tax Regulatory
Agreement; and
37
137616899.1
In accordance with the provisions of the Agreement, the Foundation has caused this
Project Fund Disbursement Written Request to be signed on its behalf this _____ day of
________, ____.
SOUTH DAKOTA STATE UNIVERSITY FOUNDATION
Name: ____________________________________
Title: _____________________________________
137616899.1
SCHEDULE A
PAYEE DESCRIPTION OF COSTS AMOUNT
(1)
(2)
(3)
(4)
(5)
(6)
(7)
_____________________________________________________________________________________________
Total $
(include wiring instructions for all items to be wired and addresses for checks to be mailed)
39
137616899.1
Exhibit 1
Project Costs to be Reimbursed
"Hard Costs" (Placed in Service Date)Spent-to-Date
$
"Soft Costs"
$
$
Total $
40
137616899.1
SCHEDULE A
SCHEDULE OF AMOUNTS ADVANCED
Amount Amount
Advanced Advanced
Total Amount as to as to Notation
Date Advances3 Advanced Bond R-1 Bond R-2 Made By
3 Depository shall enter the proportionate of Advance based upon the ratio of Maximum Principal amount of this
Bond to aggregate Maximum Principal Amount of Outstanding Bonds
41
137616899.1
SCHEDULE B
Principal
Payment
Number
Payment
Date
Principal
Amount Paid4
Bond R-1
Remaining
Balance R-1
Principal
Amount Paid
Bond R-2
Remaining
Balance R-2
6/30/18
12/31/18
6/30/19
12/31/19
6/30/20
12/31/20
6/30/21
12/31/21
6/30/22
12/31/22
6/30/23
12/31/23
6/30/24
12/31/24
6/30/25
12/31/25
4 Depository shall enter the proportionate amount of total principal being paid based upon the ratio of Maximum
Principal amount of this Bond to aggregate Maximum Principal Amount of Outstanding Bonds
137620661.2
No. R-1 $___________
UNITED STATES OF AMERICA
STATE OF SOUTH DAKOTA
CITY OF BROOKINGS, SOUTH DAKOTA
ECONOMIC DEVELOPMENT REVENUE BOND, SERIES 2017
(SOUTH DAKOTA STATE UNIVERSITY FOUNDATION PROJECT)
Initial Interest Rate Maturity Date Dated Date CUSIP
3.15%December 31, 2025 December __, 2017 N/A
Registered Owner:_____________________
Maximum Principal Amount:________________________ ($__________________)
CITY OF BROOKINGS, South Dakota (the “City”), a body politic and corporate duly
created and existing under and by virtue of the laws of the State of South Dakota, for value
received hereby promises to pay to the Registered Owner identified above, or registered assigns
as hereinafter provided, on the Maturity Date identified above, the principal sum equal to the
sum of the amounts entered by the Depository (defined below) on Schedule A attached to the
Loan and Security Agreement (defined below) under “Total Amount Advanced,” but not to
exceed the Maximum Principal Amount identified above (or such lesser amounts as remains
outstanding) and to pay interest (computed on the basis of a 360-day year of twelve 30-day
months) on such Principal Amount from the Dated Date of this Bond at the Interest Rate per
annum set forth above on each June 30 and December 31, commencing June 30, 2018, until said
Principal Amount is paid. Principal of this Bond is payable in lawful money of the United States
of America upon presentation and surrender at the principal office of First Premier Bank, as
depository, bond registrar and paying agent, or its successor (the “Depository”), under that
certain Loan and Security Agreement, dated as of even date herewith (as the same may be
amended (the”Act”) and the Charter of the City of Brookings, supplemented or otherwise
modified from time to time, the “Loan and Security Agreement”), between the City, South
Dakota State University Foundation, a South Dakota nonprofit corporation (the “Foundation”),
the Depository and the initial “Purchasers”(as defined in the Loan and Security Agreement).
Payment of the installments of interest shall be made to the Registered Owner hereof as shown
on the registration books of the City maintained by the Depository as of the close of business on
the fifteenth day of the month next preceding the interest payment date (whether or not a
business day) and shall be paid by check or draft of the Depository, in lawful money of the
United States of America, mailed to the address of such Registered Owner as it appears on such
registration books or at such other address furnished in writing by such Registered Owner to the
Bond Registrar provided that, so long as $500,000 principal amount of the Series 2017A Bonds
is registered in the name of the Registered Owner or its nominee, the payment of installments of
interest on all Bonds registered in the name of the Registered Owner or its nominee may, upon
written request to the Bond Registrar, be paid by wire transfer on the due date as provided in the
hereinafter described Bond Resolution.
2
137620661.2
THIS BOND is one of a duly authorized series of Bonds of the City authorized to be
issued pursuant to Resolution No. ____ adopted by the City Council of the City on November
28, 2017, (the “Resolution”), authorizing the issuance of this Bond and the loaning of the
proceeds hereof to the Foundation), which loan will be evidenced by a Promissory Note (the
“Note”), of the Foundation in the principal amount of $9,700,000.00 to be issued under the Loan
and Security Agreement and secured solely by the revenues, receipts and other assets of the
Foundation as provided therein, all pursuant to the authority of and in conformity with the
provisions, restrictions and limitations of the Constitution and statutes of the State of South
Dakota, including particularly Chapter 9-54 of the South Dakota Codified Laws as amended (the
“Act”) and the Charter of the City of Brookings, and pursuant to proceedings duly had by the
governing body of the City. Capitalized terms used, but not otherwise defined herein, shall have
the meaning assigned to such term in the Loan Agreement. Reference is hereby made to the
Resolution, Loan Agreement and other documents for a description of the provisions with
respect to the nature and extent of the security for the Bond, the rights, duties and obligations of
the City, the Bondholder and the holders of the Bond, and the terms upon which the Bond is
issued and secured.
UPON EACH DISBURSEMENT of Loan amounts to the Foundation pursuant to the
Loan and Security Agreement, the Depository shall enter (or cause to be entered) the amount
advanced on Schedule A under "Advances" and the total amount advanced under the Loan and
Security Agreement, including such disbursement under "Total Amount Advanced" reflecting a
disbursement of a corresponding principal amount of the Bonds.
THIS BOND is subject to mandatory sinking fund installments of principal as provided
in Section 2.4 of the Loan and Security Agreement on each December 31 commencing on
December 31, 2018. In addition, this Bond is subject redemption and payment prior to maturity
by the City at the option and upon the direction of the Foundation, in whole or in part at any time
on any Business Day upon notice as provided in the Loan and Security Agreement.
UPON EACH PAYMENT of principal with respect to the Bonds, the amount paid on
each Bond shall be recorded by the Depository on Schedule B attached to the Loan and Security
Agreement.
IN THE EVENT OF A DETERMINATION OF TAXABILITY or a Determination of
Loss of Section 265(b)(3) Qualification as defined in the Loan Agreement, the Bond shall be
converted to Taxable Bond and shall bear interest, as more fully set forth in the Loan Agreement.
THE BOND and the interest thereon are limited obligations of the City payable
exclusively out of the revenues derived by the City from the Foundation’s Gross Receipts,
including but not limited to the payments, revenues and receipts derived by the City under the
Loan Agreement and the Note, and are secured by a pledge and assignment of such payments,
revenues and receipts all as provided in the Loan Agreement. The Bond and the interest thereon
do not constitute a debt or general obligation of the City or the State of South Dakota, and are not
payable in any manner by taxation, and the Bond shall not constitute an indebtedness within the
meaning of any constitutional or statutory debt limitation or restriction. Pursuant to the
provisions of the Loan Agreement and the Note, payments sufficient for the prompt payment
when due of the interest and premium, if any, and principal of the Bond is to be paid by the
3
137620661.2
Foundation directly to the Bondholder for the account of the City and applied against the
outstanding balance of the Bond.
NO RECOURSE shall be had for the payment of the principal of or interest on any of the
Bond for any claim based thereon or upon any obligation, covenant or agreement in the Loan
Agreement contained, against any past, present or future officer, employees, commissioners or
member of the governing body of the City, as such, either directly or through the City or any
successor corporation or body politic, under any rule of law or equity, statute or constitution or
by the enforcement of any assessment or penalty or otherwise, and all such liability of any such
officers or members, as such, is hereby expressly waived and released as a condition of and
consideration for the execution of the Loan Agreement and the issuance of any of the Bond.
THE HOLDER of this Bond shall have no right to enforce the provisions of the Loan
Agreement or to institute action to enforce the covenants therein, or to take any action with
respect to any event of default under the Loan Agreement, or to institute, appear in or defend any
suit or other proceedings with respect thereto, except as provided in the Loan Agreement. In
certain events, on the conditions, in the manner and with the effect set forth in the Loan
Agreement, the principal of all the Bond issued under the Resolution and Loan Agreement and
then outstanding may become or may be declared due and payable before the stated maturity
thereof, together with interest accrued thereon. Modifications or alterations of this Bond or the
Loan Agreement may be made only to the extent and in the circumstances permitted by the Loan
Agreement.
THIS BOND is transferable, as provided in the Loan Agreement, only upon the
registration books of the City kept for that purpose, by the registered owner hereof in person or
by his duly authorized attorney, upon surrender of this Bond together with a written instrument
of transfer satisfactory to the City Finance Director, duly executed by the registered owner or his
duly authorized attorney, and thereupon a new Bond, in the same principal amount, shall be
issued to the transferee in exchange therefor as provided in the Loan Agreement and upon
payment of the charges therein prescribed. The City and the City Finance Director may deem
and treat the person in whose name this Bond is registered as the absolute owner hereof for the
purpose of receiving payment of, or on account of, the principal or redemption price hereof and
interest due hereon and for all other purposes.
THIS BOND shall not be valid or become obligatory for any purpose or be entitled to any
security or benefit under the Loan Agreement until the Certificate of Authentication hereon shall
have been executed by the City Finance Director and this Bond shall have been attested by an
attorney actually residing in and duly licensed to practice in the State of South Dakota.
IT IS HEREBY CERTIFIED AND DECLARED that all acts, conditions and things
required to exist, happen and be performed precedent to and in the execution and delivery of this
Bond do exist, have happened and have been performed in due time, form and manner as
required by law.
IN WITNESS WHEREOF, CITY OF BROOKINGS, South Dakota, has caused this
Bond to be executed in its name and on its behalf by the manual or facsimile signature of its
4
137620661.2
Mayor and City Clerk and its seal to be affixed hereto or imprinted hereon, all as of the dated
date identified above.
CITY OF BROOKINGS, SOUTH DAKOTA
By
Mayor
(SEAL)
ATTEST:
City Clerk
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bond described in the aforementioned Resolution.
FIRST PREMIER BANK, as Depository and Bond
Registrar
By:
Its:
ATTORNEY’S COUNTERSIGNATURE
I, the undersigned, an attorney actually residing in the State of South Dakota and duly
licensed to practice therein, hereby countersign the within Bond as of __________, 2017.
Attorney
5
137620661.2
ASSIGNMENT AND TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
Print or Type Name and Address of Transferee
the within Bond and all rights thereunder, and hereby irrevocably constitute and appoint
____________________ to transfer with full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of this Bond in every particular, without
alteration or enlargement or any change whatever.
Signature Guaranteed By:
(Name of Bank)
By
Its
[Seal of Bank]
PLEASE INSERT SOCIAL SECURITY
OR TAXPAYER IDENTIFICATION
NUMBER OF TRANSFEREE
137622413.1
PROMISSORY NOTE
__________, 2017 $9,700,000.00
FOR VALUE RECEIVED, the undersigned, SOUTH DAKOTA STATE UNIVERSITY
FOUNDATION, a South Dakota nonprofit corporation (the “Foundation”), hereby promises to
pay to the order of CITY OF BROOKINGS, SOUTH DAKOTA, a body politic and corporate
constituting a public instrumentality created under the laws of the State of South Dakota (the
“City”), the principal sum of
NINE MILLION SEVEN HUNDRED THOUSAND DOLLARS ($9,700,000.00)
or such lesser amount as shall have been advanced and remains outstanding under the below
defined Loan Agreement together with interest on the unpaid principal balance of this
Promissory Note (the “Note”), from the date of the execution and delivery hereof until such
obligations have been fully and finally satisfied, at a fixed rate per annum of 3.15% calculated on
the basis of a calendar year of 360 days.
This Note is issued to evidence the obligation of the Foundation under and pursuant to,
and shall be governed by and construed in accordance with the terms and conditions of, a Loan
and Security Agreement, dated of even date herewith, between the Foundation, the City, First
Premier Bank and First Bank & Trust (as amended, supplemented or otherwise modified from
time to time, the “Loan Agreement. This Note is secured as provided in the Loan Agreement.
Payments hereunder have been assigned by the City to First Premier Bank, as Depository, under
the Loan Agreement. Capitalized terms not defined herein shall have the meaning given thereto
in the Loan Agreement.
Each payment hereunder shall be required to be made at such times and in such amounts
such that the payments at all times shall be sufficient to pay the total amount of interest and
principal on the Bonds (whether at scheduled maturity, by acceleration, or by redemption as
provided therein) when and as due thereon.
As provided in the Loan Agreement and subject to the provisions thereof, payments
hereon are to be made in immediately available funds constituting lawful money of the United
States of America at the principal office of First Bank & Trust, or such other place as provided in
the Loan Agreement.
This Note may be prepaid in whole or in part only in accordance with the provisions of
the Loan Agreement.
The Foundation agrees to make the payments on this Note on the dates and in the
amounts specified herein and in the Loan Agreement and in addition agrees to make such other
payments at such times and upon such conditions as are required pursuant to the Loan
Agreement. Upon the occurrence of an Event or Default, as described in the Loan Agreement,
the principal of and interest on this Note may be declared immediately due and payable, all as
provided in and consistent with the Loan Agreement, so that at all times the payments required
2
137622413.1
hereunder shall be sufficient to pay principal, interest and premium on the Bond as and when
due. Failure to exercise this option shall not constitute a waiver of the right to exercise the same
in the event of any subsequent occurrence of such an Event of Default. If this Note shall be
placed in the hands of an attorney or attorneys for collection, the Foundation agrees to pay, in
addition to the amount due hereon, the reasonable costs and expenses of collection, including
reasonable attorneys’ fees. This Note may be canceled, amended or supplemented as provided in
the Loan Agreement.
Presentment for payment, notice of dishonor, protest and notice of protest are hereby
waived by the Foundation.
IN WITNESS WHEREOF, the Foundation has caused this Note to be duly executed and
its corporate seal to be affixed hereto.
SOUTH DAKOTA UNIVERSITY
FOUNDATION
By
Its President
Attest:
Secretary
ASSIGNMENT
Pay to the order of First Premier Bank, as Depository, said First Premier Bank shall apply
all funds received hereunder as provided in the Loan Agreement, as defined in the foregoing
Promissory Note, Series 2017. This assignment shall be without recourse to the undersigned.
CITY OF BROOKINGS, SOUTH DAKOTA
By
Mayor
ATTEST:
Finance Officer
@BCL@980D5349.DOCX
CITY OF BROOKINGS,SOUTH DAKOTA
NOTICE OF PUBLIC HEARING
WITH RESPECT TO SOUTH DAKOTA STATE UNIVERSITY PROJECTS AND THE ISSUANCE OF
BONDS UNDER SOUTH DAKOTA CODIFIED LAWS CHAPTER 9-54,AS AMENDED
NOTICE IS HEREBY GIVEN that the City Council of the City of Brookings, South Dakota (the “City”)
will meet on November 28, 2017, at 6 p.m. at the Brookings City & County Government Center,
Room 310 (Chambers), Brookings, South Dakota, for the purpose of conducting a public hearing
on the proposal to issue revenue bonds in a principal amount not to exceed $9,700,000 (the
“Bonds”), pursuant to South Dakota Codified Laws, Chapter 9-54, as amended (the “Act”), in
order to finance projects on behalf of South Dakota State University Foundation, a South Dakota
nonprofit corporation (the “Corporation”), which supports the educational mission of South
Dakota State University (the “University”) in Brookings, South Dakota.
Proceeds derived from the sale of the Bonds will be lent to the Corporation and will be used
together with other available funds of the Corporation (i) to finance costs associated with the
projects described below (the “2017 Project”), and (ii) to pay certain costs of issuing the Bonds.
The 2017 Project includes two structures located on the campus of South Dakota State University
(which is the owner of the land), the street address of which is Administration Ln, Brookings,
South Dakota, and on certain adjacent land, all of which is generally described as bounded on the
North by SD Bypass 14, on the East by 22nd Avenue, on the South by 8th Street, and on the West
by Medary Avenue, all within the City of Brookings, South Dakota. The 2017 Project is currently
expected to consist generally of the following:
(i)A major expansion and remodeling of the South Dakota State University
Performing Arts Center, including construction, equipping and furnishing of such facility; and
(ii)The construction, equipping and furnishing of a practice gym facility adjacent to
the Stanley Marshall HPER academic and athletic facility.
All of the 2017 Project facilities will be owned, managed, and operated by South Dakota State
University.
Following the public hearing, the City Council of the City will consider the adoption of a resolution
approving the issuance of the Bonds in an aggregate principal amount not expected to exceed
$9,700,000. The Bonds will be limited obligations of the City, payable solely from revenues and
other properties of the Corporation pledged to the payment thereof. The Bonds will not be general
or moral obligations of the City, and will not be secured by, or payable from, any assets, revenues,
or other property of the City, and will not be secured by or payable from any revenues derived
from any application of the taxing powers of the City.
This Notice is required by the Internal Revenue Code of 1986, as amended. At the time and place
set for the public hearing, residents, taxpayers, and other interested persons will be given the
opportunity to express their views, both orally and in writing, on the proposed 2017 Project, the
Bonds and on the location and nature of the 2017 Project. Written comments may also be
- 2 -
131843394.4
submitted to the Finance Director, City Hall, 520 3rd Street, Suite 230, P.O. Box 270, Brookings,
South Dakota, 57006, or at scostello@cityofbrookings.org. Additional information may be
obtained from the City at the preceding address.
Date: October 24, 2017 By ________________________
Shari Thornes, City Clerk